United Nations Convention on the Law of the Sea

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United Nations Convention on the Law of the Sea
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Logo of the Convention
Signed 10 December 1982
Location Montego Bay, Jamaica
Effective 16 November 1994[1]
Condition 60 ratifications
Signatories 157[2]
Parties 166[2][3]
Depositary Secretary-General of the United Nations
Languages Arabic, Chinese, English, French, Russian and Spanish
United Nations Convention on the Law of the Sea at Wikisource

The United Nations Convention on the Law of the Sea (UNCLOS), also called the Law of the Sea Convention or the Law of the Sea treaty, is the international agreement that resulted from the third United Nations Conference on the Law of the Sea (UNCLOS III), which took place between 1973 and 1982. The Law of the Sea Convention defines the rights and responsibilities of nations with respect to their use of the world's oceans, establishing guidelines for businesses, the environment, and the management of marine natural resources. The Convention, concluded in 1982, replaced four 1958 treaties. UNCLOS came into force in 1994, a year after Guyana became the 60th nation to sign the treaty.[1] As of August 2013, 165 countries and the European Union have joined in the Convention. However, it is uncertain as to what extent the Convention codifies customary international law.

While the Secretary General of the United Nations receives instruments of ratification and accession and the UN provides support for meetings of states party to the Convention, the UN has no direct operational role in the implementation of the Convention. There is, however, a role played by organizations such as the International Maritime Organization, the International Whaling Commission, and the International Seabed Authority (ISB). (The ISB was established by the UN Convention.)

Historical background[edit]

The UNCLOS replaces the older and weaker 'freedom of the seas' concept, dating from the 17th century: national rights were limited to a specified belt of water extending from a nation's coastlines, usually three nautical miles, according to the 'cannon shot' rule developed by the Dutch jurist Cornelius van Bynkershoek. All waters beyond national boundaries were considered international waters: free to all nations, but belonging to none of them (the mare liberum principle promulgated by Grotius).

In the early 20th century, some nations expressed their desire to extend national claims: to include mineral resources, to protect fish stocks, and to provide the means to enforce pollution controls. (The League of Nations called a 1930 conference at The Hague, but no agreements resulted.) Using the customary international law principle of a nation's right to protect its natural resources, President Truman in 1945 extended United States control to all the natural resources of its continental shelf. Other nations were quick to follow suit. Between 1946 and 1950, Chile, Peru, and Ecuador extended their rights to a distance of 200 nautical miles (370 km) to cover their Humboldt Current fishing grounds. Other nations extended their territorial seas to 12 nautical miles (22 km).

By 1967, only 25 nations still used the old three-mile (5 km) limit, while 66 nations had set a 12-nautical-mile (22 km) territorial limit and eight had set a 200-nautical-mile (370 km) limit. As of 28 May 2008, only two countries still use the three-mile (5 km) limit: Jordan and Palau.[4] That limit is also used in certain Australian islands, an area of Belize, some Japanese straits, certain areas of Papua New Guinea, and a few British Overseas Territories, such as Anguilla.

UNCLOS I[edit]

Territorial waters claims by coastal states in 1960[5]
Breadth claim Number of states
3-mile limit 26
4-mile limit 3
5-mile limit 1
6-mile limit 16
9-mile limit 1
10-mile limit 2
12-mile limit 34
More than 12-miles 9
Unspecified 11

In 1956, the United Nations held its first Conference on the Law of the Sea (UNCLOS I) at Geneva, Switzerland. UNCLOS I resulted in four treaties concluded in 1958:

Although UNCLOS I was considered a success, it left open the important issue of breadth of territorial waters.[5]

UNCLOS II[edit]

In 1960, the United Nations held the second Conference on the Law of the Sea ("UNCLOS II"); however, the six-week Geneva conference did not result in any new agreements.[5] Generally speaking, developing nations and third world countries participated only as clients, allies, or dependents of United States or the Soviet Union, with no significant voice of their own.[citation needed]

UNCLOS III[edit]

Sea areas in international rights

The issue of varying claims of territorial waters was raised in the UN in 1967 by Arvid Pardo, of Malta, and in 1973 the Third United Nations Conference on the Law of the Sea was convened in New York. In an attempt to reduce the possibility of groups of nation-states dominating the negotiations, the conference used a consensus process rather than majority vote. With more than 160 nations participating, the conference lasted until 1982. The resulting convention came into force on 16 November 1994, one year after the sixtieth state, Guyana, ratified the treaty.

The convention introduced a number of provisions. The most significant issues covered were setting limits, navigation, archipelagic status and transit regimes, exclusive economic zones (EEZs), continental shelf jurisdiction, deep seabed mining, the exploitation regime, protection of the marine environment, scientific research, and settlement of disputes.

The convention set the limit of various areas, measured from a carefully defined baseline. (Normally, a sea baseline follows the low-water line, but when the coastline is deeply indented, has fringing islands or is highly unstable, straight baselines may be used.) The areas are as follows:

Internal waters
Covers all water and waterways on the landward side of the baseline. The coastal state is free to set laws, regulate use, and use any resource. Foreign vessels have no right of passage within internal waters.
Territorial waters
Out to 12 nautical miles (22 kilometres; 14 miles) from the baseline, the coastal state is free to set laws, regulate use, and use any resource. Vessels were given the right of innocent passage through any territorial waters, with strategic straits allowing the passage of military craft as transit passage, in that naval vessels are allowed to maintain postures that would be illegal in territorial waters. "Innocent passage" is defined by the convention as passing through waters in an expeditious and continuous manner, which is not "prejudicial to the peace, good order or the security" of the coastal state. Fishing, polluting, weapons practice, and spying are not "innocent", and submarines and other underwater vehicles are required to navigate on the surface and to show their flag. Nations can also temporarily suspend innocent passage in specific areas of their territorial seas, if doing so is essential for the protection of its security.
Archipelagic waters
The convention set the definition of Archipelagic States in Part IV, which also defines how the state can draw its territorial borders. A baseline is drawn between the outermost points of the outermost islands, subject to these points being sufficiently close to one another. All waters inside this baseline are designated Archipelagic Waters. The state has full sovereignty over these waters (like internal waters), but foreign vessels have right of innocent passage through archipelagic waters (like territorial waters).
Contiguous zone
Beyond the 12-nautical-mile (22 km) limit, there is a further 12 nautical miles (22 km) from the territorial sea baseline limit, the contiguous zone, in which a state can continue to enforce laws in four specific areas: customs, taxation, immigration and pollution, if the infringement started within the state's territory or territorial waters, or if this infringement is about to occur within the state's territory or territorial waters.[6] This makes the contiguous zone a hot pursuit area.
Exclusive economic zones (EEZs)
These extend from the edge of the territorial sea out to 200 nautical miles (370 kilometres; 230 miles) from the baseline. Within this area, the coastal nation has sole exploitation rights over all natural resources. In casual use, the term may include the territorial sea and even the continental shelf. The EEZs were introduced to halt the increasingly heated clashes over fishing rights, although oil was also becoming important. The success of an offshore oil platform in the Gulf of Mexico in 1947 was soon repeated elsewhere in the world, and by 1970 it was technically feasible to operate in waters 4000 metres deep. Foreign nations have the freedom of navigation and overflight, subject to the regulation of the coastal states. Foreign states may also lay submarine pipes and cables.
Continental shelf
The continental shelf is defined as the natural prolongation of the land territory to the continental margin’s outer edge, or 200 nautical miles (370 km) from the coastal state's baseline, whichever is greater. A state's continental shelf may exceed 200 nautical miles (370 km) until the natural prolongation ends. However, it may never exceed 350 nautical miles (650 kilometres; 400 miles) from the baseline; or it may never exceed 100 nautical miles (190 kilometres; 120 miles) beyond the 2,500 meter isobath (the line connecting the depth of 2,500 meters). Coastal states have the right to harvest mineral and non-living material in the subsoil of its continental shelf, to the exclusion of others. Coastal states also have exclusive control over living resources "attached" to the continental shelf, but not to creatures living in the water column beyond the exclusive economic zone.

Aside from its provisions defining ocean boundaries, the convention establishes general obligations for safeguarding the marine environment and protecting freedom of scientific research on the high seas, and also creates an innovative legal regime for controlling mineral resource exploitation in deep seabed areas beyond national jurisdiction, through an International Seabed Authority and the Common heritage of mankind principle.[7]

Landlocked states are given a right of access to and from the sea, without taxation of traffic through transit states.[8]

Part XI and the 1994 Agreement[edit]

Part XI of the Convention provides for a regime relating to minerals on the seabed outside any state's territorial waters or EEZ (Exclusive Economic Zones). It establishes an International Seabed Authority (ISA) to authorize seabed exploration and mining and collect and distribute the seabed mining royalty.

The United States objected to the provisions of Part XI of the Convention on several grounds, arguing that the treaty was unfavorable to American economic and security interests. Due to Part XI, the United States refused to ratify the UNCLOS, although it expressed agreement with the remaining provisions of the Convention.

From 1983 to 1990, the United States accepted all but Part XI as customary international law, while attempting to establish an alternative regime for exploitation of the minerals of the deep seabed. An agreement was made with other seabed mining nations and licenses were granted to four international consortia. Concurrently, the Preparatory Commission was established to prepare for the eventual coming into force of the Convention-recognized claims by applicants, sponsored by signatories of the Convention. Overlaps between the two groups were resolved, but a decline in the demand for minerals from the seabed made the seabed regime significantly less relevant. In addition, the decline of Socialism and the fall of Communism in the late 1980s had removed much of the support for some of the more contentious Part XI provisions.

In 1990, consultations were begun between signatories and non-signatories (including the United States) over the possibility of modifying the Convention to allow the industrialized countries to join the Convention. The resulting 1994 Agreement on Implementation was adopted as a binding international Convention. It mandated that key articles, including those on limitation of seabed production and mandatory technology transfer, would not be applied, that the United States, if it became a member, would be guaranteed a seat on the Council of the International Seabed Authority, and finally, that voting would be done in groups, with each group able to block decisions on substantive matters. The 1994 Agreement also established a Finance Committee that would originate the financial decisions of the Authority, to which the largest donors would automatically be members and in which decisions would be made by consensus.

On 1 February 2011, the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea (ITLOS) issued an advisory opinion concerning the legal responsibilities and obligations of States Parties to the Convention with respect to the sponsorship of activities in the Area in accordance with Part XI of the Convention and the 1994 Agreement.[9] The advisory opinion was issued in response to a formal request made by the International Seabed Authority following two prior applications the Authority's Legal and Technical Commission had received from the Republics of Nauru and Tonga regarding proposed activities (a plan of work to explore for polymetallic nodules) to be undertaken in the Area by two State-sponsored contractors - Nauru Ocean Resources Inc. (sponsored by the Republic of Nauru) and Tonga Offshore Mining Ltd. (sponsored by the Kingdom of Tonga). The advisory opinion set forth the international legal responsibilities and obligations of Sponsoring States AND the Authority to ensure that sponsored activities do not harm the marine environment, consistent with the applicable provisions of UNCLOS Part XI, Authority regulations, ITLOS case law, other international environmental treaties, and Principle 15 of the UN Rio Declaration.[10]

Signature and ratification[edit]

  ratified
  signed, but not ratified
  did not sign

The convention was opened for signature on 10 December 1982 and entered into force on 16 November 1994 upon deposition of the 60th instrument of ratification.[1] The convention has been ratified by 166 parties, which includes 165 states (163 member states of the United Nations plus the Cook Islands and Niue) and the European Union.[2][11]

UN member states that have signed, but not ratified
UN member states that have not signed

The UN Observer states of the Vatican City and the State of Palestine have not signed the convention.

United States position[edit]

Although the United States helped shape the Convention and its subsequent revisions,[12] and though it signed the 1994 Agreement on Implementation, it has not signed the Convention as it objected to Part XI of the Convention.[13][14]

In 1983 President Ronald Reagan, through Proclamation No. 5030, claimed a 200-mile exclusive economic zone. In December 1988 President Reagan, through Proclamation No. 5928, extended U.S. territorial waters from three nautical miles to twelve nautical miles for national security purposes. However a legal opinion from the Justice Department questioned the President's constitutional authority to extend sovereignty as Congress has the power to make laws concerning the territory belonging to the United States under the U.S. Constitution. In any event, Congress needs to make laws defining if the extended waters, including oil and mineral rights, are under State or Federal control.[15][16]

On 16 July 2012, the U.S. Senate had 34 Republican Senators who have indicated their intention to vote against ratification of the Treaty if it comes to a vote. Since at least 2/3 of the 100 member Senate (at least 67 Senators) are required to ratify a treaty, consideration of the treaty was deferred again.[17]

Some American commentators, including former Secretary of Defense Donald Rumsfeld, have warned that ratification of the Law of the Sea Treaty might lead to its taxing authority being extended to cover the resources of outer space.[18]

Lectures[edit]

See also[edit]

References[edit]

  1. ^ a b c "The United Nations Convention on the Law of the Sea (A historical perspective)". United Nations Division for Ocean Affairs and the Law of the Sea. Retrieved 30 April 2009. 
  2. ^ a b c "United Nations Convention on the Law of the Sea". United Nations Treaty Series. Retrieved 2013-12-01. 
  3. ^ "Chronological lists of ratifications of, accessions and successions to the Convention and the related Agreements". United Nations Division for Ocean Affairs and the Law of the Sea. 8 January 2010. Retrieved 2010-02-24. 
  4. ^ "Table of claims to maritime jurisdiction". United Nations Division for Ocean Affairs and the Law of the Sea. Retrieved 1 May 2009. 
  5. ^ a b c Major Thomas E. Behuniak (Fall 1978). "The Seizure and Recovery of the S.S. Mayaguez: Legal Analysis of United States Claims, Part 1". Military Law Review (Department of the Army) 82: 114–121. ISSN 0026-4040. Retrieved 21 July 2014. 
  6. ^ "SECTION 4. CONTIGUOUS ZONE, Article 33". UNCLOS PART II – TERRITORIAL SEA AND CONTIGUOUS ZONE. United Nations. Retrieved 2012-01-19. 
  7. ^ Jennifer Frakes, The Common Heritage of Mankind Principle and the Deep Seabed, Outer Space, and Antarctica: Will Developed and Developing Nations Reach a Compromise? Wisconsin International Law Journal. 2003; 21:409
  8. ^ This is a principle that was first developed in the Convention on Transit Trade of Land-locked States.
  9. ^ Case No. 17 – Responsibilities and Obligations of States Sponsoring Persons and Entities With Respect to Activities in the Area – Advisory Opinion, Seabed Disputes Chamber of the International Tribunal for the Law of the Sea (1 February 2011)
  10. ^ International Tribunal on the Law of the Sea Finally Renders Advisory Opinion Establishing that the Precautionary Principle is Incorporated Within UNCLOS Law, ITSSD Journal on the UN Law of the Sea Convention (March 22, 2011)
  11. ^ La Convention des Nations Unies sur le droit de la mer, instrument de régulation des relations internationales par le droit, éd. L'Harmattan, 2011
  12. ^ Documents on Global Issues, 1973-1976 Foreign Relations Series
  13. ^ Roger Rufe, President of the Ocean Conservancy. Statement before the Senate Committee on Foreign Relations, October 21, 2003
  14. ^ V Bantz, 'La Question De I'Adhesion Par Les Etats-Unis a La Convention Des Nations Unies Sur Le Droit De La Mer' (2003) 8 Annuaire Du Droit De La Mer 9–54
  15. ^ Andrew Rosenthal (29 December 1988). "Reagan Extends Territorial Waters to 12 Miles". New York Times. Retrieved 23 July 2014. 
  16. ^ Carol Elizabeth Remy (1992). "U.S. Territorial Sea Extension: Jurisdiction and International Environmental Protection". Fordham International Law Journal 16 (4): 1208–1252. Retrieved 23 July 2014. 
  17. ^ Johnson, Keith. "GOP Scuttles Law-of-Sea Treaty". The Wall Street Journal. Retrieved 17 July 2012. 
  18. ^ Wong, Kristina. "Rumsfeld still opposes Law of Sea Treaty." The Washington Times, 14 June 2012.

External links[edit]