United Nations Convention on the Law of the Sea
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 ratify the
treaty. As of June 2016, 167 countries and the European
Union have joined in
the Convention. 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 (ISA).
Historical
Background-
UNCLOS replaces
the older '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 3 nautical miles (5.6 km) (Three-mile
limit), 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 liberumprinciple promulgated by Hugo 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 Harry S.
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 3-mile (4.8 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 3-mile (4.8 km) limit: Jordan and Palau. 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
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:
·
Convention on
the Territorial Sea and Contiguous Zone, entry into force: 10
September 1964
·
Convention on the Continental Shelf,
entry into force: 10 June 1964
·
Convention on the High Seas, entry into
force: 30 September 1962
·
Convention on
Fishing and Conservation of Living Resources of the High Seas, entry
into force: 20 March 1966
Although UNCLOS
I was considered a success, it left open the important issue of breadth of
territorial waters.
UNCLOS II
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. Generally
speaking, developing nations and third world countries participated only as
clients, allies, or dependents of the United States or the Soviet Union, with
no significant voice of their own.
UNCLOS III
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 60th 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:
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.
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 sovereignty over these waters (like internal waters), but
subject to existing rights including traditional fishing rights of immediately
adjacent states. Foreign vessels have right of innocent passage through
archipelagic waters (like territorial waters).
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. 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 4,000 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.
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.
Landlocked states are given a right of
access to and from the sea, without taxation of traffic through transit states.
Part XI and 1994
Agreement
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 1982 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. 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.
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