Features

Our Nation and the sea
The United Nations, Sri Lanka and the Law of the sea
by M.C.W. Pinto

1.The United Nations and the Law of the Sea

The United Nations began to codify the Law of the Sea in 1946 soon after World War II. The General Assembly created the International Law Commission, and the Law of the Sea was among the first subjects taken up by the Commission for progressive development and codification. It was a subject that was important to the major maritime powers, and had already been under study by the Committee of Legal Experts appointed by the League of Nations. The Committee's work had even been discussed at an inter-governmental conference in 1930, but in those troubled times had yielded no result.

Sri Lanka joined the United Nations in 1952, in time to study the work of the International Law Commission on the Law of the Sea. The work was completed in 1956, and Sri Lanka participated in the first United Nations Conference on the Law of the Sea, which convened in Geneva in 1958. Ceylon, as it was then, was represented at the Conference by two distinguished lawyer-diplomats, Sir Claude Corea and Mr. Neville Kanakaratne, who was later appointed ambassador in several important capitals, and served as Governor of the Southern Province before his untimely death.

The 1958 Conference was based on texts produced by the International Law Commission. It was attended by delegates from 86 countries, and was able to adopt four treaties, all of which were widely ratified and entered into force. They were: the Convention on the High Seas (EIF 30.9.62); the Convention on the Territorial Sea and the Contiguous Zone (EIF 10.9.64); the Convention on Fishing and Conservation of the Living Resources of the High Seas (EIF 20.3.66); and the Convention on the Continental Shelf (EIF 10.6.64). Sri Lanka appears to have been satisfied with the texts of all four Conventions. Our delegation signed all of them at the end of the Conference, on 30 October 1958. Similarly satisfied was Pakistan, whose delegate signed all four Conventions a day later. But India did not sign any of the Conventions, and Sri Lanka, following the prudent practice of evaluating its actions in the light of Indian policy, never ratified and became party to any of these Conventions. Nor did Pakistan.

The 1958 Conference had left unresolved three issues of particular importance to the major naval powers, and States with large distant-water fishing fleets: the maximum breadth of the territorial sea, the limits of the fishery jurisdiction of coastal States, and rights of foreign ships to pass through straits used for international navigation. A hurried attempt to address these issues at a second United Nations Conference convened in Geneva in 1960, failed. They remained unresolved until the States concerned were able to place them before a third United Nations Conference on the Law of the Sea, which convened some 13 years later.

The Third UN Conference on the Law of the Sea differed in many ways from that held in 1958. First, whereas the 1958 Conference had dealt with selected subjects already given careful study by the International Law Commission, the Third Conference attempted to deal across the board with all outstanding issues concerning the law of the sea without such prior preparation, and to do so in a single, necessarily long and complex, treaty. Second, unlike the 1958 Conference, the Third Conference did not have before it basic texts that had been carefully worked out by 17 legal experts on the International Law Commission. All of the new treaty, which in the end, comprised more than 300 articles and 7 Annexes, had to be negotiated, drafted, refined and prepared for signature in six languages: Arabic, Chinese, English, French, Russian and Spanish). This had to be done with the participation of legal and scientific experts from more than 150 countries - a co-operative legislative task of unprecedented proportions. Third, the initiative to hold such a conference, which could well be described as "global" both as to the scope of the issues dealt with, and the scope of participation in it, came essentially from the developing countries, rather than the major naval powers. Fourth, in taking this initiative, the developing countries were inspired by a new-found confidence, which was rooted, in part, in an imagined strength to be derived from their numerical superiority, political solidarity, and the possession by some of them, of a large proportion of the world's energy resources - so much so that they demanded that participants agree to all of the Convention's stipulations, including those introduced by the developing countries, or remain outside its ambit - the so-called "package deal".

So successful was this initiative of the developing countries, that the Convention became the only international agreement that could claim to have incorporated the aims and principles of what became known as the Declaration on the New International Economic Order, a concept later dismissed by the industrialized countries.

2. Sri Lanka and the Third UN Conference on the Law of the Sea

For Sri Lanka, the Third UN Conference on the Law of the Sea was of two-fold significance. The first feature of significance was appointment by acclamation in 1973, of Ambassador H.S. Amerasinghe as President of the Conference. This gave our country both the opportunity to prove its worth in service to the international community, and unparalleled international exposure and recognition. Second, it served as a kind of wake-up call to our Government on the need to give greater priority to efforts to utilize and manage Sri Lanka's marine resources.

In 1967, while serving as Sri Lanka's Representative at the United Nations, Ambassador Amerasinghe had been elected Chairman of what came to be known as the "Sea-bed Committee", a Committee of the General Assembly charged with the study of the novel proposal by Malta, that the sea-bed and ocean floor beyond national jurisdiction should be declared the "Common Heritage of Mankind". Malta's proposal was that the area and all of its resources should be managed for the benefit of all countries, and in particular, for the benefit of the developing countries, and should not become the object of unregulated and unauthorized exploitation by individual States or by entities under their jurisdiction or control. Received with enthusiasm by the developing countries, it was treated with extreme skepticism, if not outright disdain, by the industrialized countries, both those countries which favoured free enterprise, and those of the socialist group. No one gave the Maltese proposal much of a chance of success.

But those who doubted, had not reckoned with the energy, intellectual capacity, charisma and leadership skills of Chairman Amerasinghe. With the support of officers from what was then Ceylon's Ministry of Defence and External Affairs, Ambassador Amerasinghe negotiated the text of a historic Declaration of Principles governing the Sea-bed and Ocean Floor, and the Subsoil thereof beyond the Limits of National Jurisdiction. The Declaration was adopted by the General Assembly at its Twenty-fifth Anniversary Session in 1970, by 108 votes in favour, to none against, with 14 abstentions (Resolution 2749). Largely through Ambassador Amerasinghe's efforts, the Assembly at that session also adopted Resolution 2750, which inter alia called for the holding of a third UN Conference on the Law of the Sea by 1973.

The Sea-bed Committee led by Amerasinghe was then charged with preparations for the new conference. Under his leadership, three sub-Committees, after intensive and prolonged negotiations, produced by 1972, a List of Subjects and Issues to be dealt with at the Conference. The Conference held its inaugural session in New York in 1973. It seemed only natural then, that Amerasinghe should be elected its President by acclamation. From the first working session in Caracas, Venezuela in 1974, Amerasinghe used his outstanding personal qualities to channel the talents and energies of 150 delegations functioning in three Committees of the Conference, into a co-operative effort that eventually produced two successive drafts of what became the UN Convention on the Law of the Sea.

So great was the esteem in which Amerasinghe was held that, in 1977 when the Government of Sri Lanka decided to terminate his appointment as its Permanent Representative, the Conference took the unprecedented (and until now unique) step of maintaining him as its President even though he no longer represented a government. At his untimely death in 1980 he had successfully managed one of the United Nations' most ambitious projects for more than a decade, and had brought Sri Lanka's reputation and influence in United Nations circles to the highest level. At his death, management of the Conference passed to Ambassador Tommy Koh of Singapore, who presided at the signing of the Convention at Montego Bay in December 1982.

Sri Lanka's active engagement at the Conference did not end with the death of Ambassador Amerasinghe. Leadership of the Sri Lanka delegation passed to Ambassador Hiran Jayewardene, who made his own outstanding contribution to the work of the Conference, and thereafter to the work of the Preparatory Commission that was charged with laying the foundations of the new institutions created by the 1982 Convention on the Law of the Sea. But without doubt Ambassador Jayewardene's most significant achievement was for his own country, and the full scope of that achievement has yet to be measured.

Ambassador Jayewardene joined the Sri Lanka delegation to the Conference in 1978. His study of the draft text of the Convention convinced him that the provisions of its Article 76, which established the limit of a State's continental shelf beyond 200 miles from its baselines, treated Sri Lanka unfairly, by taking as its principal reference point, a specified thickness of the shelf's potentially oil-bearing sedimentary rocks. He found that, when the limits prescribed by article 76 were applied to the peculiar configuration of Sri Lanka's shelf in the Bay of Bengal they deprived Sri Lanka of a major portion of adjacent oil-bearing features. With a zeal and dedication which we now know to be characteristic of him. Ambassador Jayewardene collected the data he needed and placed it before his principal interlocutors, the geologists of the United States of America and the then Soviet Union. When he had convinced them of the reasonableness of Sri Lanka's case, he had still to contend with the drafters of Article 76, who thought that they had already met the concerns of all the States with broad margins. He also needed to convince States that had narrow margins - the so-called geographically disadvantaged States, who were opposed to any extension of the shelf beyond 200 nautical miles, of the justice of Sri Lanka's case. But Ambassador Jayawardene had a sure grasp of the technical basis of his claim. Equipped with maps in support of it, he travelled the world in order to secure the necessary political and scientific support. He was rewarded when the Conference, as a whole, and by way of exception to the rule in Article 76, accepted Sri Lanka's claim, thus adding thousands of square kilometers to Sri Lanka's under-sea resource jurisdiction.

Only one difficulty remained: India insisted that the exception made for Sri Lanka should be recognized in relation to India as well, failing which India was prepared to oppose Sri Lanka's claim. For a time, the success of Dr. Jayewardene's efforts appeared to be in the balance: it was one thing it seemed, for the international community to make an exception for a small, resource-poor island like Sri Lanka; quite another to make such a concession to a continental giant like India. But success did ultimately attend Dr. Jayewardene's efforts.

The Conference agreed that the exceptional method of delimiting the shelf in the Bay of Bengal could be used by both Sri Lanka and India. Dr. Jayewardene's achievement is now recorded in an Annex (Annex II) to the Final Act of the Conference, entitled Statement of Understanding concerning a specific method to be used in establishing the outer edge of the continental margin. That text will effectively legitimize Sri Lanka's (and India's) claims to an extended shelf in the Bay of Bengal, when they submit their data to the United Nations' Commission on the Limits of the Continental Shelf, which they must do by 2007.

Another successful initiative undertaken by the Sri Lanka delegation led by Dr. Jayewardene, was the negotiation and inclusion in the Final Act of the Conference, of another Annex (Annex VI), entitled Resolution on Development of National Marine Science, Technology and Ocean Service Infrastructures. This resolution, which invites States to give priority to plans for strengthening their marine science, technology and service infrastructures, calls upon the industrialized countries to assist the developing countries in implementing such plans. It is also intended to influence the policies of the international financial agencies by recommending that they extend assistance to the developing countries for those purposes.

Over the period of nearly 30 years of Sri Lanka's engagement with the Law of the Sea at the United Nations (1967-1996) successive leaders of its delegations have been able to rely on essential support from the Office of the Legal Adviser of Sri Lanka's Foreign Ministry, and from Members of its Foreign Service. Of the latter, special mention must be made of the late Ambassador Karan Breckenridge, whose outstanding diplomatic and negotiating skills proved invaluable, and whose very personality and presence often lifted the sometimes flagging spirits of the delegation. Susantha de Alwis, Rodney Vandergert, Bernard Goonetilleke, Lal Kurukulasuriya and Rohan Perera all either led Sri Lanka's delegations with distinction or gave them essential, if not vital, support.

I would also like to mention another Sri Lankan who made a significant contribution to the work of the Conference on the Law of the Sea: Grita Kumar Chitty. Kumar Chitty served for several years as assistant to Ambassador Amerasinghe when he was President of the Conference. Not only did he advise Ambassador Amerasinghe in dealing with the varied Conference issues that confronted him, but also gave specialist advice to the President, who had undertaken to deal personally with the complex dispute settlement regime of the Convention. Chitty, having served in the United Nations Secretariat, went on to set up the Registry of the International Tribunal for the Law of the Sea in Hamburg, and served, until recently, as its Registrar.

3. International, national and regional initiatives inspired by the Conference and the UN Convention

I come now to the second, and possibly the most important aspect of Sri Lanka's relationship to the United Nations in connection with the Law of the Sea. Not only did Sri Lanka's position at the Conference give it unparalleled international recognition, and access to the highest levels of expertise available in the world's most advanced scientific institutions, but that recognition and access sparked, among the country's politicians, lawyers, scientists and administrators, a new or heightened awareness of the resources of the seas and seabed around us, and of the need for creative management of their resources for the purpose of their sustainable use for the benefit of our people.

Encouraged by the spirit of the times reflected in Amerasinghe's 1970 Sea-bed Declaration's which reserved the sea-bed beyond national jurisdiction "exclusively for peaceful purposes", as well as initiatives to declare nuclear-free zones in Latin America and south-east Asia, Sri Lanka proposed to the General Assembly at its 26th session in 1971 the adoption of a declaration intended to make the Indian Ocean, together with the air-space above it and the sea-bed below "for all time a zone of peace". Largely due to the prestige of Sri Lanka's Prime Minister Sirimavo Bandaranaike, and her leadership of the Non-aligned Movement, the Declaration of the Indian Ocean as a Zone of Peace, was adopted by the General Assembly as Resolution 2832 (XXVII). The Declaration was not intended to obstruct passage through the Indian Ocean by the merchant vessels and warships of all nations, but it did call on the "great powers" to halt escalation and expansion of their military presence in the Indian Ocean, and to dismantle the military installations and facilities they had established there. Although it was opposed by the major naval powers, the General Assembly established a Committee to study how the Declaration's objectives might be realized (Res. 2992 (XXVII)). The Committee met annually from 1972 under the chairmanship of successive Permanent Representatives of Sri Lanka for some 20 years. The Committee attempted latterly to convene an international conference on selected issues, but without achieving its aims.

Taking into account the rules on which agreement was being reached at the UN Conference on the Law of the Sea, and assured of a sympathetic response from the Government of India, then led by Mrs. Indira Gandhi, Sri Lanka raised with India the possibility of demarcating, by agreement, the boundary between the two countries in the Gulf of Mannar and the Bay of Bengal. It was intended thereby also to deal incidentally, but definitively, with a subject over which a difference of opinion had existed for decades between the two countries: sovereignty over the island of Kachchativu. Following a thorough examination by the officials of each country of the other's evidence of the exercise of sovereignty over the island, it was agreed between Prime Minister Sirimavo Bandaranaike and Prime Minister Indira Gandhi, that Kachchativu fell within Sri Lanka's sovereignty. Accordingly, the Agreement between the two countries on the maritime boundary between them in the Gulf of Mannar and the Bay of Bengal concluded in 1974, reflects that fact, and places it beyond dispute.

With guidance from Sri Lanka's Defence and External Affairs Secretary W.T. Jayasinghe, and India's Foreign Secretary Kewal Singh, two other maritime boundary agreements were concluded between the two countries, while yet another was concluded between them and the Republic of the Maldives, all within the year 1976. The significance of these agreements is well explained in Mr. Jayasinghe's recent book on Sri Lanka's maritime boundary, which helpfully includes the texts of these and related documents.

After the conclusion of these boundary agreements, and once again taking into account developments at the Third UN Conference on the Law of the Sea, Parliament enacted the Maritime Zones Law, No. 22, of 1976 conferring the powers necessary for the exercise by Sri Lanka of jurisdiction and control over adjacent marine areas and their resources. Finally, a Proclamation by President Gopallawa dated 15 January 1977 prescribed the country's maritime baselines, declared a 12 nautical mile territorial sea, a 24 nautical mile contiguous zone, and a 200 nautical mile exclusive economic zone, all to be measured seaward from those baselines. It also defined Sri Lanka's historic waters in the Palk Strait, Palk Bay and the Gulf of Mannar. Sri Lanka thereby brought within its area of resource jurisdiction some 436,000 square kilometers around its shores.

Action by the Government to establish the geographical extent of Sri Lanka's jurisdiction in most areas where it is confronted by the maritime jurisdiction of another State, was undertaken several years before the end of the Third Conference, but did take into account the work in progress which appeared to codify emerging rules of customary law on such subjects as a 12 mile territorial sea, a 24 mile contiguous zone, and a 200 mile exclusive economic zone. However, Sri Lanka did receive notes in protest with respect to one provision of its Maritime Zones Law: Section 3, which requires foreign warships and military aircraft to obtain the "prior consent" of the Government before entering or passing through the territorial sea or the air space above it. This requirement was anathema to the major naval powers who declared they would not observe it. Sri Lanka was among some 159 States that signed the 1982 Convention on 10 December 1982. Sri Lanka ratified the 1982 Convention on 19 July 1994.

But why did Sri Lanka, which had played such an active role in the Third UN Conference on the Law of the Sea, delay for some 12 years to become a Party to its product, the 1982 Convention? The delay was due to the uncertainties that arose after signature of the Convention, when a group of industrialized countries which were not entirely satisfied with the text they had adopted under the "package deal", persuaded the Secretary-General of the United Nations to begin a series of consultations aimed at radically altering Part XI of the Convention which dealt with the sea-bed beyond national jurisdiction. This, you would recall, is a vast area that had, in 1970, been declared the Common Heritage of Mankind, implying that the area and its resources could not be acquired by any State, and could not be explored or exploited other than in accordance with international regulation. After the end of the Conference, the industrialized countries opposed Part XI of the Convention because, on reflection, they found that its provisions went too far in the direction of controlling private enterprise. This was abhorrent to them, and could eventually prevent them from joining the Convention. In proposing modification of the text, they emphasized the objective of making the Convention "universal". This was actually, a coded reference to amending the text to suit certain governments, which had threatened to reject the Convention. Although they had earlier agreed to a "package deal", that is, an understanding that a State could accept (or reject) the Convention as a whole, but would not be allowed selective agreement to the Convention's provisions, the consultations went ahead, and secured agreement to the removal of those innovative provisions concerning the sea-bed that the poorer countries had insisted on for more than a decade. A new treaty to cleanse the 1982 Convention of the offending provisions on the Common Heritage was prepared and placed before the General Assembly in 1994. This was an unprecedented procedure that would have the effect of merging the new treaty with the 1982 Convention, thereby changing the latter even before it entered into force. The procedure was marked by a triple irony: first, the new treaty which would surgically remove what the developing countries had fought for, was called an "Implementing Agreement", even though it was directed not at implementation, but at amendment and suppression of the Convention's provisions; second, provisions which the developing countries had laboured 12 years to insert into the 1982 Convention, were taken away in the following 12 years, and amazingly, this was done with their consent; and third, the most powerful industrialized country, at whose initiative the legal cleansing had been organized, has not until now, a decade after that radical surgery, taken steps to ratify the 1982 Convention and its "Implementing Agreement".

Sri Lanka, following the general trend among the developing countries, signed the Implementing Agreement on 29 July 1994, undertook provisional application of the Agreement on 16 November 1994, and became a Party to it on 28 July 1995. India's adherence followed a similar pattern, India becoming a Party a month earlier, on 29 June 1995.

Several important initiatives taken in Sri Lanka were inspired by its participation in the Third UN Conference on the Law of the Sea. They were commenced late in the decade of the 1970s continuing into the 1980s as the Conference drew to a close. Relying on coastal State management jurisdiction conferred by articles 62 and 63 of the draft UN Convention on the Law of the Sea, Parliament approved the Fisheries (Regulation of Foreign Fishing Boats) Act No. 59 of 1979, and under that Act, the Foreign Fishing Boat Regulations of 1981.

One of the most important pieces of legislation and institution-building inspired by the Conference was conceived and realized by Dr. Hiran Jayewardene. This was the National Aquatic Resources Act No. 54 of 1981, which brought into being the National Aquatic Resources Agency, or what we know as NARA. The concept underlying NARA was new, and won acclaim from many delegations and non-governmental organizations at the Conference on the Law of the Sea. The essence of the concept is recognition that all resources in or under water, as well as the medium of water itself, whether fresh water or seawater, are inter-related. Because of that close relationship among all bodies of water - rivers, lakes, estuaries and the sea - they and the resources they contain should be considered together as a whole when formulating policies aimed at ensuring their management for sustainable use. Accordingly, the Act gives NARA a broad range of functions and powers. Although the Ministry of Fisheries was given the lead role in overseeing and promoting NARA's operations, the Agency's activities cover, in addition to fisheries management, a role in co-ordination and research promotion that covers aquatic mineral resources, environmental protection, and the social economic, industrial and commercial aspects of the use of all types of marine and fresh water resources.

Under the impetus given to such activities through the creation of NARA and its co-ordinating role, several surveys of aquatic mineral resources were commenced, and licences were issued to foreign firms exploring for hydrocarbons in the Palk Strait and the Bay of Bengal. Jurisdiction confirmed by article 211 of the 1982 Convention on the Law of the Sea led the Government to adopt the Marine Pollution Prevention Act, No. 59 of 1981. The Act created the Marine Pollution Prevention Authority, and led to the establishment of traffic separation schemes in the area adjacent to Dondra Head which is at substantial risk from the frequent passage of oil tanker traffic bound for the Straits of Malacca and East Asian ports. Other pieces of legislation inspired by the comprehensive environment protection provisions of the Law of the Sea Convention, were the National Environmental Act, No. 47 of 1980, which created the National Environmental Authority empowered to formulate national environmental policy, planning and research; and the Coast Conservation Act, No. 57 of 1981 (effective 1 October 1983) which makes provision for the protection of the marine environment and other ecosystems, such a coral reefs, mangroves and estuaries.

Recognition by the United Nations that "the problems of ocean space are closely inter-related", led to frequent emphasis in the provisions of the 1982 Convention, on the need for international, regional and sub-regional co-operation. Such co-operation was essential, it was believed, if participating countries were to benefit from the new opportunities, rights and obligations provided for in the Convention.

In 1981, again at the initiative of Dr. Hiran Jayewardene, Sri Lanka proposed to the Member States of the Asian-African Legal Consultative Committee the establishment of a consultative institutional framework for promoting the peaceful uses of the Indian Ocean, including co-operation in activities such as marine scientific research, the management of living and non-living resources, and the management of environmental problems. Following the presentation of several reports by AALCC (as it was then called) Sri Lanka convened the first Conference on Economic, Scientific and Technical Co-operation in the Indian Ocean from 15-20 July 1985. It was attended by States from within and outside the region and by several inter-governmental and non-governmental organizations. The meeting led to the establishment of the Indian Ocean Marine Affairs Co-operation Organization. With the support from the United Nations and other inter-governmental sources, IOMAC's activities have included a number of projects concerning the protection and preservation of marine mammals, the study of sediment fans in the Indian Ocean, and the development of an "Ocean City" on the north-eastern seaboard of Sri Lanka.

4. The future

From what I have said, I think we may conclude that Sri Lanka under the impetus imparted by its activity at the United Nations, is well equipped with basic laws and regulations to manage and safe-guard its marine resources, both living and mineral, and including its marine environment. Perhaps the discovery of commercially interesting oil deposits may one day require more detailed regulation in that field, but in general, what needed to be done legislatively, has been done. What we now need, is not more laws, but rather, the thoughtful implementation of the laws we have in place. The mapping of marine areas within Sri Lanka's jurisdiction, in particular the delimitation and mapping of undersea areas in the Bay of Bengal should be carried out without delay. This is a project which, to some extent, would need to be carried out in co-operation with India. The expertise and equipment needed for those activities, as well as for resource surveys, and surveillance and monitoring of activities within Sri Lanka's jurisdiction are expensive, and yet necessary. An expert group representative of all interested government departments, as well as representatives of the United Nations, FAO, IMO, UNESCO, the World Tourism Organization and the financial institutions might be entrusted with developing a prioritized list of projects, as well as ways of financing them.

There are three areas which, it appears to me, would be worthy of more intensive consideration: 1) the human element in marine affairs, such as the conditions of life and work of Sri Lankan crews aboard vessels of foreign registration, and coastal communities, in particular women in those areas; 2) education and training in marine sciences; and 3) undersea archeology, and marine parks, as investments in the promotion of scientific research and tourism.

 

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