Blue Economy, in the context of Marine Domain Awareness (MDA) and its critical component, the Underwater Domain Awareness (UDA) and the contemporary relevance to BIMSTEC, involves bringing together several perspectives. My own area of work being the Law of the Sea, my few observations herein are from a legal perspective.
The essential focus of Marine Domain Awareness and Underwater Domain Awareness is on matters of security. Blue Economy, on the other hand, is essentially resource oriented. Blue Economy refers to harnessing of ocean resources for economic benefits.
The Bay of Bengal Initiative for Multi-Sectoral Technical and Economic Cooperation (BIMSTEC) has included Blue Economy in its agenda since 2016. BIMSTEC emphasizes the importance of cooperation in the region and includes Maritime security, safety, and regulatory enforcement.
SAGAR, Security and Growth for All in the Region, is India’s vision and geopolitical framework of maritime cooperation in the Indian Ocean region, and apart from security concerns also includes the development of maritime resources, support capacity building and resource sharing.
In the overall context of all these, and from a legal point of view, all activities in the sea whether that be harnessing the resources or security initiatives, need to be undertaken in a legal framework and with respect to maritime jurisdictional rights. The existing legal framework that confers sovereign rights and jurisdictional rights is contained in the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and its related instruments. In the present international scenario and rapidly advancing scientific discoveries and technological developments, a major question that arises is: “Is the existing legal framework adequate?”
Maritime jurisdictions have until today been addressed in terms of distance from the baselines as well as areas covered in square units. A new rethinking involves the volume covered in coastal State jurisdictions beyond territorial sea. From a security related point of view this new rethinking may have some significance. The entire conventional concept of sovereignty and sovereign rights may undergo dramatic change. In fact, UNCLOS also incorporates the use of depth criteria and geometry in specific situations.
In the context of ocean resources, the need to revisit UNCLOS framework has already gained much momentum. In some areas, such as marine biodiversity and genetic resources, or deep seabed mining several new initiatives have come up. It is important to examine how far these new developments deviate from UNCLOS and how the interests of developing States are affected adversely due to lack of scientific information, technology, and technical know-how.
The most significant achievement of UNCLOS is that it brings precision to limits of national and international jurisdictions as well as clarity in terms of the exercise of sovereignty, sovereign rights, and jurisdiction by States. For the first time in the history of the Law of the Sea, developing countries stand to benefit from a legal framework concerning the oceans. UNCLOS is widely acclaimed as the “Constitution for the Oceans”. Even those countries that have not yet acceded to the Convention consider the maritime zones and rights established in the Convention are now part of customary international law. It is important to note that UNCLOS governs all aspects of ocean space, including the delimitation and delineation of maritime boundaries, exploration and exploitation of living and non-living resources, protection and preservation of the marine environment, marine scientific research, and the settlement of disputes. If any new instrument were to be developed, it should be so under UNCLOS framework and not override its provisions.
The term “Blue Economy” stems from the 2012 UN Conference on Sustainable Development (Rio+20) and refers to food, jobs and opportunities for development provided by ocean and coastal assets. Blue Economy is a developing concept. Different institutions have adopted varying definitions of the term in accordance with their own focus of work. While there is a divergence of views on what that concept includes, there appears to be a common denominator that there would be an increasing use of the resources of the oceans in the coming years. The resources of the oceans include fish, and other living resources, minerals and other non- living resources of the submarine areas, seabed and subsoil, energy from water, currents and winds, marine organisms, and genetic resources. Resources include both within and beyond national jurisdiction. In harnessing these resources, apart from inherent security issues, the question of sustainability, economic business opportunities as well as wider aspects such as environmental protection and climate change are also involved. BIMSTEC in these areas could go a long way in adding peace and stability in the region, apart from significant economic benefits. It may be of interest to recall that in 2015, the Federation of Indian Chambers of Commerce and Industry (FICCI) had set up a 16-Member Force to address these matters. That Task Force brought out its first report in 2017 that focused on business potentials for India and its international partners. Thereafter, FICCI constituted a Six Member Core Group from amongst the Task Force that brought out the second report on takeaways for India and its partner nations.
Lastly, a matter that is of particular importance to Sri Lanka and India concerns the delineation of the outer limits of the continental shelf in the southern part of Bay of Bengal and the application of the special provisions contained in the Statement of Understanding in Annex II of the Final Act of the Third United Nations Conference on the Law of the Sea. This is a special provision, and one question that arises is whether only Sri Lanka and India can benefit from it or is it applicable to other States as well where similar geological and geomorphological conditions exist.
*Presentation on the topic by invitation, at the Webinar on “Indo-Sri Lankan Relations and the BIMSTEC: A New Perspective based on the Underwater Domain Awareness (UDA) Framework” organized by Maritime Research Center on 25th March 2022. The views expressed in this paper are personal views and do not reflect the views of any organizations or institutions that that the author is or have been associated with.
H. P. Rajan
Independent Consultant on the Law of the Sea. Former Deputy Director, Division for Ocean Affairs and the Law of the Sea, and Secretary, Commission on the Limits of the Continental Shelf, United Nations, New York. Former elected Member of the Legal and Technical Commission of the International Seabed Authority. Former Adviser to the then Department of Ocean Development, now Ministry of Earth Sciences.