The United Nations Convention on the Law of the Sea

In our researches on Space Law, let’s keep looking at Public International Law, and especially, the Law of the Sea. Let’s have a look at the United Nations Convention on the Law of the Sea, sometimes referred to as the Montego Bay Convention.

From oil to tin, diamonds to gravel, metals to fish, the resources of the sea are enormous. The reality of their exploitation grows day by day as technology opens new ways to tap those resources. The oceans had long been subject to the freedom-of-the-seas doctrine: a principle put forth in the seventeenth century essentially limiting national rights and jurisdiction over the oceans to a narrow belt of sea surrounding a nation’s coastline.

The remainder of the seas was proclaimed to be free to all and belonging to none. While this situation prevailed into the twentieth century, by mid-century there was an impetus to extend national claims over offshore resources. The navies of the maritime powers were competing to maintain a presence across the globe on the surface waters and even under the sea.

As a result, the United Nations Convention on the Law of the Sea (UNCLOS), also called the Law of the Sea Convention, the international agreement that resulted from the third United Nations Conference on the Law of the Sea (UNCLOS III), took place between 1973 and 1982. The United Nations Convention on the Law of the Sea lays down a comprehensive regime of law and order in the world’s oceans and seas establishing rules governing all uses of the oceans and their resources. It enshrines the notion that all problems of ocean space are closely interrelated and need to be addressed as a whole.

The Convention, concluded in 1982, replaced four 1958 treaties. UNCLOS came into force in 1994, a year after Guyana became the sixtieth nation to ratify the text.

The need for a Law of the Sea

In 1945, President Harry S. Truman, responding in part to pressure from domestic oil interests, unilaterally extended United States of America jurisdiction over all natural resources on that nation’s continental shelf: oil, gas, minerals… This was the first major challenge to the freedom-of-the-seas doctrine. Other nations soon followed suit.

In October 1946, Argentina claimed its shelf and the epicontinental sea above it. Chile and Peru in 1947, and Ecuador in 1950, asserted sovereign rights over a 200-mile zone, hoping thereby to limit the access of distant-water fishing fleets and to control the depletion of fish stocks in their adjacent seas.

There was growing concern over the toll taken on coastal fish stocks by long-distance fishing fleets and over the threat of pollution and wastes from transport ships and oil tankers carrying noxious cargoes that plied sea routes across the globe.

Soon after the Second World War, Egypt, Ethiopia, Saudi Arabia, Libya, Venezuela and some Eastern European countries laid claim to a 12-mile territorial sea, thus clearly departing from the traditional three-mile limit.

Later, the archipelagic nation of Indonesia asserted the right to dominion over the water that separated its thirteen thousand islands. The Philippines did likewise. In 1970, Canada asserted the right to regulate navigation in an area extending for one hundred miles from its shores in order to protect Arctic water against pollution.

In the late 1960s, oil exploration was moving further and further from land, deeper and deeper into the bedrock of continental margins. From a modest beginning in 1947 in the Gulf of Mexico, offshore oil production, still less than a million tons in 1954, had grown to close to four hundred million tons. Oil drilling equipment was already going as far as four thousand metres below the ocean surface.

A tangle of claims, spreading pollution, competing demands for lucrative fish stocks in coastal waters and adjacent seas, growing tension between coastal nations’ rights to these resources and those of distant-water fishermen, the prospects of a rich harvest of resources on the sea floor, the increased presence of maritime powers and the pressures of long-distance navigation and a seemingly outdated, if not inherently conflicting, freedom-of-the-seas doctrine… All these were threatening to transform the oceans into another arena for conflict and instability.

The oceans were being exploited as never before. Activities unknown barely two decades earlier were in full swing around the world. Tin had been mined in the shallow waters off Thailand and Indonesia. South Africa was about to tap the Namibian coast for diamonds. Potato-shaped nodules, found almost a century earlier and lying on the seabed some five kilometres below, were attracting increased interest because of their metal content.

It was a time that held both dangers and promises, risks and hopes. The dangers were numerous: nuclear submarines charting deep waters never before explored; designs for antiballistic missile systems to be placed on the seabed; supertankers ferrying oil from the Middle East to European and other ports, passing through congested straits and leaving behind a trail of oil spills; and rising tensions between nations over conflicting claims to ocean space and resources. The oceans were generating a multitude of claims, counterclaims and sovereignty disputes.

The United Nations Convention on the Law of the Sea

As a result, the United Nations Convention on the Law of the Sea (UNCLOS), also called the Law of the Sea Convention, the international agreement that resulted from the third United Nations Conference on the Law of the Sea (UNCLOS III), took place between 1973 and 1982. The United Nations Convention on the Law of the Sea lays down a comprehensive regime of law and order in the world’s oceans and seas establishing rules governing all uses of the oceans and their resources. It enshrines the notion that all problems of ocean space are closely interrelated and need to be addressed as a whole.

The Convention was opened for signature on December 10, 1982 in Montego Bay, Jamaica. This marked the culmination of more than fourteen years of work involving participation by more than one hundred and fifty countries representing all regions of the world, all legal and political systems and the spectrum of socio/economic development. At the time of its adoption, the Convention embodied in one instrument traditional rules for the uses of the oceans and at the same time introduced new legal concepts and regimes and addressed new concerns. The Convention also provided the framework for further development of specific areas of the Law of the Sea.

The Convention entered into force in accordance with its article 308 on November 16, 1994, twelve months after the date of deposit of the sixtieth instrument of ratification or accession. Today, it is the globally recognized regime dealing with all matters relating to the Law of the Sea. The Convention comprises three hundred and twenty articles and nine annexes, governing all aspects of ocean space, such as delimitation, environmental control, marine scientific research, economic and commercial activities, transfer of technology and the settlement of disputes relating to ocean matters.

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 organisations such as the International Maritime Organization, the International Whaling Commission, and the International Seabed Authority (ISA).

Some of the key features of the Convention

Coastal States exercise sovereignty over their territorial sea which they have the right to establish its breadth up to a limit not to exceed twelve nautical miles; foreign vessels are allowed “innocent passage” through those waters.

Ships and aircraft of all countries are allowed “transit passage” through straits used for international navigation; States bordering the straits can regulate navigational and other aspects of passage.

Archipelagic States, made up of a group or groups of closely related islands and interconnecting waters, have sovereignty over a sea area enclosed by straight lines drawn between the outermost points of the islands; the waters between the islands are declared archipelagic waters where States may establish sea lanes and air routes in which all other States enjoy the right of archipelagic passage through such designated sea lanes.

Coastal States have sovereign rights in a 200-nautical mile exclusive economic zone (EEZ) with respect to natural resources and certain economic activities, and exercise jurisdiction over marine science research and environmental protection.

All other States have freedom of navigation and overflight in the EEZ, as well as freedom to lay submarine cables and pipelines.

Land-locked and geographically disadvantaged States have the right to participate on an equitable basis in exploitation of an appropriate part of the surplus of the living resources of the EEZ’s of coastal States of the same region or sub-region; highly migratory species of fish and marine mammals are accorded special protection.

Coastal States have sovereign rights over the continental shelf (the national area of the seabed) for exploring and exploiting it; the shelf can extend at least two hundred nautical miles from the shore, and more under specified circumstances.

Coastal States share with the international community part of the revenue derived from exploiting resources from any part of their shelf beyond two hundred miles.

The Commission on the Limits of the Continental Shelf shall make recommendations to States on the shelf’s outer boundaries when it extends beyond two hundred miles.

All States enjoy the traditional freedoms of navigation, overflight, scientific research and fishing on the high seas; they are obliged to adopt, or cooperate with other States in adopting, measures to manage and conserve living resources.

The limits of the territorial sea, the Exclusive Economic Zone and continental shelf of islands are determined in accordance with rules applicable to land territory, but rocks which could not sustain human habitation or economic life of their own would have no economic zone or continental shelf.

States bordering enclosed or semi-enclosed seas are expected to cooperate in managing living resources, environmental and research policies and activities.

Land-locked States have the right of access to and from the sea and enjoy freedom of transit through the territory of transit States.

States are bound to prevent and control marine pollution and are liable for damage caused by violation of their international obligations to combat such pollution.

All marine scientific research in the EEZ and on the continental shelf is subject to the consent of the coastal State, but in most cases they are obliged to grant consent to other States when the research is to be conducted for peaceful purposes and fulfils specified criteria.

States are bound to promote the development and transfer of marine technology “on fair and reasonable terms and conditions”, with proper regard for all legitimate interests.

States Parties are obliged to settle by peaceful means their disputes concerning the interpretation or application of the Convention.

Disputes can be submitted to the International Tribunal for the Law of the Sea established under the Convention, to the International Court of Justice, or to arbitration. Conciliation is also available and, in certain circumstances, submission to it would be compulsory. The Tribunal has exclusive jurisdiction over deep seabed mining disputes.