RMS Titanic, a British passenger liner run by the White Star Line, struck an iceberg and sank on 15 April 1912 in the North Atlantic Ocean. 111 years later another tragedy refreshed the horrors of the past when OceanGate’s Submersible mysteriously lost contact with the mother ship and disappeared near the wreckage of Titanic.
Deep-sea expeditions present unique challenges, including extreme pressure, low temperatures, and uncharted terrain, making it imperative to maintain the highest safety and equipment reliability standards.
The OceanGate Titan accident has sparked discussions about the inherent risks associated with deep-sea exploration and the need to understand Laws and regulations regarding the Deep Ocean.
Legal frameworks related to Ocean Explorations:
The laws governing ocean exploration are complex and involve a combination of international treaties, national legislation, and customary international law. Here are some key legal frameworks and concepts related to ocean exploration:
I. UNCLOS: United Nations Convention on the Law of the Sea,1982
UNCLOS is a comprehensive treaty that establishes the legal framework for all activities in and related to the world’s oceans. It defines the rights and responsibilities of states regarding their use and protection of the marine environment, including provisions on maritime boundaries, navigation, marine resources, and the protection of marine ecosystems.
It is also known as the Law of the Sea. The marine areas defined in the UNCLOS are divided into five major Zones i.e. Internal Waters, Territorial Sea, Contiguous Zone, Exclusive Economic Zone (EEZ), and the High Seas.
A. Territorial Waters:
Article 3, UNCLOS states that ‘Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention’.
This means that the territorial waters of coastal states as a belt of sea extending up to 12 nautical miles from their baselines. Within this zone, coastal states have full sovereignty over the airspace, water column, and seabed. Foreign vessels enjoy the right of innocent passage through these waters.
What is the Right of innocent passage?
Article 19 of the UNCLOS states the meaning of the innocent passage;
i). “Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State”: Innocent passage refers to the right of ships to navigate through another country’s territorial waters in a peaceful manner. As long as the passage does not pose a threat to the coastal state’s peace, good order, or security, it is considered innocent. This means that ships passing through territorial waters must refrain from engaging in any activities that could harm or disturb the coastal state.
ii). “Such passage shall take place in conformity with this Convention and with other rules of international law”: This part emphasizes that innocent passage must adhere to the regulations outlined in UNCLOS and other applicable international laws. UNCLOS provides specific guidelines and restrictions on what constitutes an innocent passage, ensuring that it aligns with the principles of freedom of navigation and the rights of coastal states.
Contiguous Zone:
The contiguous zone grants coastal states certain control and enforcement rights to protect their customs, fiscal, immigration, and sanitary laws and regulations. These rights allow the coastal state to prevent and address infringements of its laws within the contiguous zone, which extends up to 24 nautical miles from the baselines used to measure the territorial sea.
- Prevention of Infringement: The coastal state can take measures within the contiguous zone to prevent violations of its laws and regulations. For example, it can conduct surveillance, inspections, or other actions to ensure that customs, fiscal, immigration, and sanitary rules are not infringed upon.
- Punishment of Infringement: If infringements of the mentioned laws and regulations occur within the coastal state’s territory or territorial sea, the state has the authority to punish the offenders. This implies that if violations take place within the coastal state’s jurisdiction, it can apply its legal system and impose appropriate penalties or sanctions.
B. Exclusive Economic Zones (EEZs):
Beyond the territorial waters, coastal states can claim an EEZ extending up to 200 nautical miles from their baselines. In the EEZ, coastal states have exclusive rights to explore and exploit natural resources, both living and non-living, in the water column and on or under the seabed.
Legal Regime: the EEZ is subject to the specific legal regime established in Part V of UNCLOS. Part V of UNCLOS provides detailed provisions that govern the rights, responsibilities, and activities within the EEZ. These provisions determine the scope of the coastal state’s rights and jurisdiction, as well as the rights and freedoms of other states.
Rights, jurisdiction and duties of the coastal State in the exclusive economic zone:
Article 56 of UNCLOS talks about the rights and responsibilities of the coastal states in the EEZ
1.In the exclusive economic zone, the coastal State has:
- sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents, and winds;
- Jurisdiction as specified in this Convention’s relevant sections with respect to:
- the establishment and use of artificial islands, installations, and structures;
- marine scientific research;
- the protection and preservation of the marine environment;
- Other rights and duties provided for in this Convention
2. In exercising its rights and performing its duties under this Convention in the exclusive economic zone, the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention.
3. The rights set out in this article with respect to the seabed and subsoil shall be exercised in accordance with Part VI.
C. Continental Shelf:
UNCLOS recognizes that some coastal states may have an extended continental shelf beyond their EEZs. States can claim an extended continental shelf if they can demonstrate that the seabed and subsoil of the shelf are a natural prolongation of their land territory. These claims are subject to specific procedures and review by the Commission on the Limits of the Continental Shelf.
When a continental shelf reaches a distance of more than 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, the coastal State must draw a line connecting fixed points that are identified by their latitude and longitude coordinates along a straight line no longer than 60 nautical miles in length.
Rights of the coastal State over the continental shelf: Article 77
- The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources.
- The rights referred to in paragraph 1 are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State
- The rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation.
- The natural resources referred to in this Part consist of the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil.
D. High Seas:
Beyond national jurisdiction, the high seas are areas of the ocean that belong to all states and are open to all for navigation, fishing, scientific research, and other peaceful purposes. However, there are some limitations on activities such as unauthorized exploitation of marine resources or threats to the marine environment.
Part VII of the UNCLOS shall apply to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State. This article does not entail any abridgement of the freedoms enjoyed by all States in the exclusive economic zone in accordance with Article 58.
Freedom of the high seas:
All nations, whether coastal or landlocked, have access to the high seas.
The conditions set forth by this Convention and other international laws must be met in order to exercise freedom of the high seas.
- freedom of navigation;
- freedom of overflight;
- freedom to lay submarine cables and pipelines, subject to Part VI;
- freedom to construct artificial islands and other installations permitted under international law, subject to Part VI;
- freedom of fishing, subject to the conditions laid down in section 2;
- freedom of scientific research, subject to Parts VI and XIII.
All States shall exercise these freedoms with due regard for other States’ interests when exercising their freedom on the high seas, as well as for their rights under this Convention in relation to operations in the Area.
Penal jurisdiction in matters of collision or any other incident of navigation:
Article 97 of UNCLOS deals with the Jurisdictional concept of any situation that may arise in the High Seas:
- In the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national.
- In disciplinary matters, the State which has issued a master’s certificate or a certificate of competence or licence shall alone be competent, after due legal process, to pronounce the withdrawal of such certificates, even if the holder is not a national of the State which issued them.
- No arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the flag State.
What Will Happen in the Case of OceanGate Submersible Accident:
OceanGate Inc. is a privately owned U.S. company in Everett, Washington, that provides crewed submersibles for tourism, industry, research, and exploration. The company was founded in 2009 by Stockton Rush and Guillermo Söhnlein. The business bought the submersible Antipodes and then produced Cyclops 1 and Titan. OceanGate started taking paying visitors to see the Titanic disaster in the Titan in 2021.
Titan sank in June 2023 while travelling to the Titanic shipwreck site, killing all 5 people on board, including Rush. The wreckage was discovered on the seabed close to the Titanic wreck site on June 22 after a global search and rescue operation was started.
Legal Jurisdiction for Action:
Even though the Titan submarine imploded outside of any nation’s territorial waters on the high seas, its jurisdiction must be established in order to pursue appropriate legal action against the offenders.
Discipline procedures against the firm may be brought before the legal or administrative authorities of the United States, where the master or the company was registered, in accordance with Article 97 of the UNCLOS.
Article 97(1): States that the master or any other person working for the ship may be held accountable for a collision or any other navigational incident on the high seas, but no criminal or disciplinary action may be taken against them unless it is done so in front of the judicial or administrative authorities of the ship’s flag state or the state in which they were born.
II. Other Significant Agreements Regulating International Waters
International Seabed Authority (ISA):
The ISA was established under UNCLOS to regulate and manage activities related to the exploration and exploitation of mineral resources in the deep seabed beyond national jurisdiction. The ISA issues licenses and sets rules for deep-sea mining activities to ensure environmental sustainability and the equitable sharing of benefits. The member states of the ISA are made up of both coastal and landlocked states. The ISA currently counts over 160 nations among its members.
Purpose and Mandate:
The ISA’s primary purpose is to ensure the effective protection of the marine environment and the equitable and efficient utilization of mineral resources in the international seabed area, also known as the Area. It serves as the regulatory body responsible for overseeing activities in this unique and globally shared area.
Authority and Functions of ISA:
- Regulation and Licensing: The ISA issues licenses and regulates activities related to the exploration and exploitation of minerals in the Area.
- Environmental Protection: The ISA is responsible for establishing guidelines and regulations to protect the marine environment from potential impacts caused by deep-sea mining activities.
- Benefit-Sharing: The ISA promotes the equitable sharing of financial and other benefits derived from deep-sea mining activities in the Area.
- The Mining Code: The ISA has developed a comprehensive set of regulations called the “Mining Code.” It provides detailed guidelines and procedures for the exploration and exploitation of minerals in the Area. The Mining Code covers various aspects, including environmental impact assessments, financial obligations, and dispute settlement mechanisms.
MARPOL: International Convention for the Prevention of Pollution from Ships (MARPOL Convention)
It is one of the most significant international treaties addressing marine pollution caused by ships. It was developed by the International Maritime Organization (IMO) and came into effect on October 2, 1983. MARPOL aims to minimize and prevent pollution of the marine environment from shipping activities through the regulation of various sources of ship-generated pollution.
MARPOL addresses six main categories of pollution from ships:
- Oil Pollution
- Noxious Liquid Substances
- Harmful Substances in Packaged Form
- Garbage Pollution
- Air Pollution
- Sewage Pollution
Responsibility:
MARPOL establishes responsibilities for both the flag states (the country where a ship is registered) and the port states (the countries where ships call at ports). Flag states are responsible for ensuring that their ships comply with MARPOL requirements and maintain appropriate certification and documentation. Port states have the authority to inspect ships, enforce compliance with MARPOL regulations, and take appropriate actions against non-compliant vessels.
The International Whaling Commission (IWC):
is an intergovernmental organization established by the International Convention for the Regulation of Whaling in 1946. The IWC’s primary objective is the conservation of whales and the management of whaling activities to ensure the sustainable and responsible use of whale populations worldwide.
The IWC is composed of member states, which are countries that have ratified the International Convention for the Regulation of Whaling. Initially, the IWC had 15 founding members, and today it consists of over 80 member states.
Whaling Moratorium:
In 1982, the IWC adopted a moratorium on commercial whaling, which prohibited the hunting and killing of whales for commercial purposes. The moratorium aimed to allow whale populations to recover from extensive overexploitation and to promote the conservation of these species.
Exceptions to the Moratorium: While the commercial whaling moratorium is in effect, the IWC permits certain exceptions to allow for limited whaling activities:
- Aboriginal Subsistence Whaling: The IWC allows indigenous communities with traditional subsistence whaling practices to hunt a limited number of whales for cultural and nutritional needs.
- Scientific Research Whaling: Member states can obtain permits from the IWC to conduct scientific research on whales, which may involve the lethal take of a limited number of whales. However, this exception has been a subject of debate and criticism.
Jurisdiction of IWC:
The regulations and decisions made by the IWC are legally binding on its member states that have ratified the convention. However, it is important to note that not all countries are members of the IWC or have ratified the convention. Therefore, the IWC’s binding regulations apply only to its member states that have voluntarily agreed to be bound by its decisions.
Additionally, non-member states and countries that have not ratified the International Convention for the Regulation of Whaling are not legally bound by the IWC’s regulations. However, the IWC’s decisions and recommendations can still carry significant weight and influence in shaping international policies and practices regarding whale conservation and whaling.
References:
United Nations Convention on the Law of the Sea, Act 1982
https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf
International Maritime Org: imo.org/en/ourwork/legal…