The existence of substantial freshwater reserves beneath the saline ocean, once thought to be impossible, has been confirmed by scientific evidence. Boreholes drilled off the New Jersey coast in the 1960s and subsequent discoveries by scientists around the world have revealed underwater sources of fresh water. Notably, a river under the Black Sea, over 100 feet deep and flowing at approximately four miles per hour, rivals the size of major land-based rivers.
These discoveries have reignited interest in the exploration and exploitation of freshwater resources beyond national jurisdiction. The total volume of water on Earth consists primarily of saltwater (97.5%), with only 2.5% being freshwater. Of this freshwater, a mere 0.3% exists in liquid form on the surface, leaving a significant portion hidden underground, including beneath the ocean bed.
As freshwater becomes an increasingly scarce and valuable commodity, countries are turning their attention to the oceans as a potential source of this vital resource. Within their maritime zones, countries may explore and exploit freshwater from above or under the ocean bed. However, beyond their Exclusive Economic Zone (EEZ) lies the “Area,” which is governed by Part XI of UNCLOS.
The “Area” is defined as the seabed and ocean floor beyond the limits of national jurisdiction and is considered the “common heritage of mankind.” This means that it is available for everyone’s use and benefit, with future generations in mind.
UNCLOS establishes a comprehensive framework for the exploration and exploitation of resources in the “Area.” However, Article 311 of UNCLOS stipulates that it prevails over the Geneva Conventions on the Law of the Sea, 1958, only among state parties to UNCLOS. This raises questions about the applicability of UNCLOS to non-signatory states and their recognition of the Exclusive Economic Zone and the “Area” doctrines.
The definition of “resources” in UNCLOS, which includes solid, liquid, or gaseous mineral resources in situ, raises the question of whether freshwater falls under this category. The International Seabed Authority (ISA), established by UNCLOS, has the authority to regulate activities in the “Area.” However, for states party to the Geneva Conventions but not UNCLOS, the question remains as to who regulates their activities in the “Area.”
Given the current geopolitical landscape, freshwater is expected to become a source of conflict in the future. As a result, the “Area” is emerging as a potential zone for freshwater exploration and extraction. Similar to how oil wells are capped for future use, freshwater wells may be identified and capped for future access.
The lacunae in the current legal framework governing resource exploration and exploitation beyond national jurisdiction, coupled with the multiple legislations regulating the law of the sea, create a complex and potentially contentious environment. Addressing these gaps, particularly those related to freshwater exploration in the “Area,” is essential for ensuring sustainable and equitable access to this vital resource.
India can play a leading role in this endeavor, leveraging its expertise in international law and its commitment to sustainable development. By promoting harmonized regulations and fostering international cooperation, India can contribute to the creation of a legal framework that ensures the responsible and equitable use of freshwater resources beyond national jurisdiction, benefiting humanity in the face of growing water scarcity.
