The Law of Seas and Jurisprudence of Ownership: Analytical Essay

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Introduction to The Law of Sea

India has managed to build a rich Maritime history in the course of time even before the rise of the European Maritime laws. During the ancient period, Indian ships would sail across international seas and transport all sorts of valuable goods to the neighbouring Asian and Middle Eastern countries. After the advent of the Britishers, Indian ships were discouraged and British ships were given more preference. The indigenous ships had to be registered under the U.K. Merchant Shipping Act which implied that even though the ships were registered in India, they were owned by the British.

The Law of Sea is part of the Public International law which deals with the navigational rights, mineral rights and helps in ascertaining the jurisdiction beyond the coastal waters. The United Nations Conference on the Law of Sea in the year 1956 resulted in the codification of the comprehensive Law of Sea. There were four treaties that were formed namely: Convention on the Territorial Sea and Contiguous Zone , Convention on the Continental Shelf, Convention on the High Seas, and Convention on Fishing and Conservation of Living Resources of the High Seas. This was the first conference regarding this issue and later there were more conferences which refined the laws and will be discussed further in this paper.

Law of the Sea ought to be recognized from maritime law, which concerns oceanic issues and questions among private parties, for example, individuals, international associations, or organizations. In any case, the International Maritime Organization, a UN office that plays a significant job in executing the law of the sea, likewise assists with creating, classifying, and directing certain principles and measures of maritime law.

The Law of Sea deals with one of the key components of the “Global Commons” i.e. the global ocean. A Global Common is basically used to define the basic global-source domains in which the common-pool resources are to be found. The common goods are scarce and cannot be excluded from a person’s life in particular making it non-excludable if we talk about it in the economic terms. There is always a problem related to the overuse and degradation of such resources. The term “commons” emerged from Great Britain which spoke about the “commoner’s rights” from which this concept came into being. The Law of Sea work together to mitigate this problem that is dealt by people when it comes to the protection of the ocean/sea as a resource-provider and a resource itself, by governing the rights and duties of the parties according to their decided jurisdictions.

Introduction to the Jurisprudence of Ownership

Ownership is considered as that juristic concept which is applicable in all systems of law. This concept has its origin from the Ancient Roman laws which distinguished ownership from possession. In the Roman Law, ownership and possession were called as “dominium” and “possession” respectively. The word “Ownership” means to have absolute right over an object whereas the word “Possession” means to have only physical rights over the object according to the Ancient Roman Law. Ownership was considered to be superior than Possession as the absolute right over an object was considered to be more significant and relevant than having physical control over something in the Roman society.

The concept of ownership talks about the relationship of a person and the object that the person owns. There are certain rights that comes along the ownership of the object by that person. The concept of ownership claims to have power, immunity and liberty with regards to the thing owned by a person.

Different jurists have tried to define ownership in different ways. According to Hibbert, there are four kinds of rights that have been included under ownership:

Right to use a thing
Right to exclude others from using the thing
Right to disposition of the thing
Right to destroy it

According to Austin, he has concentrated on the three main characteristics of ownership, namely, indefinite user, unrestricted disposition and unlimited duration which will further be discussed in details.

Indefinite User: Right of indefinite user means that the owner is free to use the thing in whatever way he/she wants. He said that there cannot be an absolute right over the thing. There are certain restriction that are to be followed which have been directed by the laws that are to be followed. The owner should make sure that the object which he/she owns should not violate the rights of another person. The concept is based on of the well-known maxim ‘sie utere tero ut alier non-laedasdas’ which means that use your own property but not to injure your neighbour’s right.
Unrestricted Disposition: What Austin is attempting to clarify by unlimited demeanour is that the power of disposition of the pawner is unrestricted by law which means along these lines that he is completely allowed to arrange it to expel it to anybody. This is incorrect.
Unlimited Duration: This was criticised as under every law the state has the power to take back the ownership is there is a misuse and if it is for the public interest.

Austin’s definition has been followed by Holland. There is a plenary control over the object. An owner has three rights on the subject owned:

Possession
Enjoyment
Disposition

Entire authority over an article suggests unlimited oversight unhindered by any law or reality. In this way, the analysis levelled against Austin’s definition would apply to that given by Holland to the extent that the ramifications of the expression ‘entire control’ goes.

Salmond’s Definition:

According to the Salmond, there is a right that has been vested to the owner and other that that, all the other exercises are considered to be exclusive. For Salmond ownership is considered as a bundle of rights and the power is in the hands of one person i.e. the owner. Salmond talks about two characteristics of ownership:

Ownership is a relation between a person and right
Ownership is incorporeal body

Salmond’s definition doesn’t show the substance of ownership. It doesn’t demonstrate the right, powers and so forth which are inferred in the idea of ownership. Once again, it isn’t entirely right to say that ownership is a connection between an individual and the right that is vested in him. As the most well-known and basic thought of ownership is a connection between an individual and a thing.

The Law of Sea and Ownership

After the third UN conference which dealt with the proper implementation of the International Laws into the oceans, there was a need for a proper mechanism for the enforcement of the decisions that were made so in the year 1982, the United Nations Convention of the Law of Seas was created. It was ratified in the year 1994 and the implementation began right after the 60th country signed to the convention. This convention was mainly created to implement different rules and regulations to determine the right to ocean to specific countries and to create nautical policies.

The United Nations Convention on the Law of Seas set some rules on the partnership with each other for the right to ocean. The coastal states have the jurisdiction of 12 Nautical miles from the coastline and 200 Nautical miles has been reserved for particular states to use the living or non-living ocean resources which includes not only fishing and mining but also, the protection of the ocean from pollution and protection of the biodiversity.

Ownership in the Law of Seas can be related to the jurisdiction of the nations who violate the rules and regulations. It can also be related to the utilisation of the natural resources and its protection as well. The oceanic ownership fall into the following criteria which has been defined by the UN: contiguous zone, territorial sea, exclusive economic zone (EEZ), and the international water.

The Territorial Sea has been defined as the 12 nautical miles or 22 kilometres from the costal line where the specific nation takes care of the regulations of that particular area for transportation and determines whether their territory can have innocent passage or not keeping in mind about their own security.

The Contiguous Zone is 12 km away from the Territorial sea and the purpose of this zone is for the nation to make rules regarding customs, taxation, immigration and pollution. The host nation has jurisdiction if there is a violation of the rules.

The Exclusive Economic Zone is 200 Nautical miles from the coastline where there is access to all sorts of natural resources. The foreign nations are also allowed to pass by according to the host nation’s regulations.

The International waters means anything that is outside the radius of 200 Nautical miles which brings an end to the host nation’s jurisdiction to take actions against any wrongful act. Any ship or aircraft found violating rules and regulations will be punished under the jurisdiction of the nation whose flag they are flying. However, if there is piracy, then any nation can have universal jurisdiction.

Conclusion

Jurisprudence has turned out to be very helpful in the making of cohesive laws. The law of seas has a very strong relation with ownership. The ownership implies the jurisdiction of the host nations under whose zone the laws have been violated. The idea of ownership over the oceans have been a hot topic for many years; many countries are still building their empire and continue to have ownership. There has been a rapid development in the technologies and the this has helped in facilitating trade in the whole world. The constant labour in mitigating the issues related to the international waters is commendable and hope that there is more improvement in the near future.

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The Law of Seas and Jurisprudence of Ownership: Analytical Essay

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