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United Nations Convention on the Law of the Sea

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For maritime law in general see Admiralty law.

The term United Nations Convention on Law of the Sea (UNCLOS, also called simply the Law of the Sea or LOS) refers to several United Nations events and one treaty. The events the term refers to are the (First) United Nations Convention on Law of the Sea, the Second United Nations Convention on Law of the Sea, and the Third United Nations Convention on Law of the Sea. The treaty resulting from the Third United Nations Convention on Law of the Sea also bears the name United Nations Convention on Law of the Sea and is the most recent major development in international law governing the oceans. The treaty provided new universal legal controls for the management of marine natural resources and the control of pollution. Its Secretariat resides within the United Nations Division for Ocean Affairs and the Law of the Sea.

International ownership treaties

Historical background

The LOS was needed due to the weakness of 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 three nautical miles (6 km), from the 'cannon shot' rule. All water beyond national boundaries was considered international waters- free to all nations but belonging to none of them.

Into the 20th century many nations expressed a need to extend national claims: to include mineral resources, to protect fish stocks and to have the means to enforce pollution controls. This was recognized by the League of Nations and a conference was held in 1930 at The Hague, but did not result in any agreements. One nation that undermined the 'freedom of the seas' was the United States, when in 1945 President Truman unilaterally extended his nation's control to cover all the natural resources of their continental shelf. Other nations were quick to emulate the USA. Between 1946 and 1950, Argentina, Chile, Peru and Ecuador all extended their sovereign rights to a 200 nautical mile (370 km) distance - so as 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 nautical mile (6 km) limit, 66 nations had set a 12 nautical mile (22 km) territorial limit, and eight had set a 200 nautical mile (370 km) limit.

The (First) United Nations Conference on Law of the Sea (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.

The Second United Nations Conference on Law of the Sea (UNCLOS II)

The United Nations followed this in 1960 with its second Convention on the Law of the Sea (“UNCLOS II”). UNCLOS II did not result in any international agreements.

The Third United Nations Conference on Law of the Sea (UNCLOS III)

The issue of varying claims of territorial waters was raised in the UN in 1967 by Arvid Pardo and in 1973 the Third United Nations Conference on the Law of the Sea was convened in New York to write a new treaty covering the oceans. The conference lasted until 1982 and over 160 nations participated. The conference was conducted under a process of consensus rather than majority vote in an attempt to reduce the possibility of groups of nation-states dominating the negotiations. The convention came into force on November 14, 1994, one year after the sixtieth state, Guyana, signed it.

The convention introduced a number of provisions. The most significant issues covered were setting limits, navigation, archipelagic status and transit regimes, exclusive economic zones (EEZ), 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 territorial waters to 12 nautical miles (22 km), in which area the coastal state is free to set laws, regulate any 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. Beyond the 12 nautical mile (22 km) limit there was a further 12 nautical mile (22 km) or 24 nautical miles (44 km) from the territorial sea baselines limit, the "contiguous zone", in which area a state could continue to enforce laws regarding activities such as smuggling or illegal immigration.

The exclusive economic zones (EEZ) extended the exploitation rights of coastal nations to 200 nautical miles (370 km) from shore, covering all natural resources. The EEZ 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, by 1970 it was technically feasible to operate in waters 4000 metres deep.

The convention set the definition of Archipelagic States in Part IV, which also define how the state can draw its teritorial borders. A baseline is drawn between the outermost points of the outermost islands. All waters inside this baseline is described as Archipelagic Waters and are included as part of the state's territory. This baseline is also used to chart its territorial waters 12 nautical miles (22 km) from the baseline and EEZ 200 nautical miles (370 km) from the baseline.

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.

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

Part XI

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

The United States strongly objected to the provisions of Part XI of the treaty, on several grounds. The US felt that the provisions of the treaty were not free market friendly and were designed to favour the economic systems of the Communist states. The US felt that the provisions could potentially result in the ISA receiving large revenues from seabed mining, and that there was insufficient controls over what these revenues could be used for. The US was particularly concerned that these revenues could be given to causes which the US opposed, such as the PLO. It was also concerned that the ISA would become a bloated and expensive bureaucracy even if seabed mining never proved to be economically feasible.

Due to Part XI, the US refused to sign the UNCLOS, although they expressed their agreement with the remaining provisions of the treaty. They also expressed the view that even as not a party, it considered many of the remaining provisions as binding upon the United States as a statement of customary international law which it had accepted.

It became clear that the US would not accept the treaty as it stood. It was felt that the treaty would not be successful with such strong opposition from the US. In addition, the fall of the Communism in the late 1980s had removed much of the support for some of the more contentious Part XI provisions (such as the use of Soviet-style economic planning for seabed mining, and the use of the proceeds to fund "national liberation" movements such as the PLO). As a result, the United Nations resolved to negotiate an amendment to the treaty to meet the United States' concerns. As a result, the Agreement relating to Part XI was negotiated and agreed upon by the parties to the treaty and the United States. This modified Part XI to remove or soften most of the provisions the US was opposed to. In particular, it limited the size of the ISA bureaucracy and gave the US an effective veto over the dispersal of ISA funds.

Due to the Agreement, the United States government now feels that the UNCLOS (including the modified Part XI provisions) are now acceptable, and no longer opposes ratification. (However, despite this, ratification still has not occurred, due to internal political reasons discussed below.)

Criticism

Libertarians criticize the treaty for creating a tragedy of the commons by designating oceanic resources as the "common heritage of mankind" – essentially public property – instead of privatizing the seabed. According to economic theories promoted by the Property and Environment Research Center and other free market environmentalists, privatization would create incentives for preservation by giving owners an economic interest in protecting the long-term value of their property. If long-term tuna fishing rights were auctioned off, for instance, the owner would have an incentive not to overfish, since depleting the population would lessen returns in future years.

Among some conservatives in the United States the treaty is considered antithetical to U.S. national interests. A small group of Republican senators, led by Jim Inhofe of land-locked Oklahoma, has blocked American ratification of the treaty, claiming that it would impinge upon U.S. sovereignty. The Bush administration and the Pentagon favor ratification.

Signature and ratification

Opened for signature - December 10, 1982.

Entered into force - November 16, 1994.

Parties - (149) Albania, Algeria, Angola, Antigua and Barbuda, Argentina, Armenia, Australia, Austria, The Bahamas, Bahrain, Bangladesh, Barbados, Belgium, Belize, Benin, Bolivia, Bosnia and Herzegovina, Botswana, Brazil, Brunei, Bulgaria, Burkina Faso, Burma, Cameroon, Canada, Cape Verde, Chile, People's Republic of China, Comoros, Democratic Republic of the Congo, Cook Islands, Costa Rica, Côte d'Ivoire, Croatia, Cuba, Cyprus, Czech Republic, Denmark, Djibouti, Dominica, Egypt, Equatorial Guinea, Estonia, European Union, Fiji, Finland, France, Gabon, The Gambia, Georgia, Germany, Ghana, Greece, Grenada, Guatemala, Guinea, Guinea-Bissau, Guyana, Haiti, Honduras, Hungary, Iceland, India, Indonesia, Iraq, Ireland, Italy, Jamaica, Japan, Jordan, Kenya, Kiribati, South Korea, Kuwait, Laos, Latvia, Lebanon, Lithuania, Luxembourg, Macedonia, Madagascar, Malaysia, Maldives, Mali, Malta, Marshall Islands, Mauritania, Mauritius, Mexico, Federated States of Micronesia, Monaco, Mongolia, Mozambique, Namibia, Nauru, Nepal, Netherlands, New Zealand, Nicaragua, Nigeria, Norway, Oman, Pakistan, Palau, Panama, Papua New Guinea, Paraguay, Philippines, Poland, Portugal, Qatar, Romania, Russia, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Samoa, São Tomé and Príncipe, Saudi Arabia, Senegal, Serbia and Montenegro, Seychelles, Sierra Leone, Singapore, Slovakia, Slovenia, Solomon Islands, Somalia, South Africa, Spain, Sri Lanka, Sudan, Suriname, Sweden, Tanzania, Togo, Tonga, Trinidad and Tobago, Tunisia, Tuvalu, Uganda, Ukraine, United Kingdom, Uruguay, Vanuatu, Vietnam, Yemen, Zambia, Zimbabwe.

Countries that have signed, but not yet ratified - (28) Afghanistan, Belarus, Bhutan, Burundi, Cambodia, Central African Republic, Chad, Colombia, Republic of the Congo, Dominican Republic, El Salvador, Ethiopia, Iran, North Korea, Lesotho, Liberia, Libya, Liechtenstein, Malawi, Morocco, Niger, Niue, Rwanda, Swaziland, Switzerland, Thailand, United Arab Emirates, United States.

References

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  • Legal comments on ratifications of UNCLOS III convention on the law of the sea NELSON L.,
  • Declarations, Statements and 'Disguised Reservations' with Respect to the Convention on the Law of the Sea, in: International and Comparative Law Quarterly, 2001, 767-786; CHURCHILL R.,
  • United Kingdom: Accession to the UN Convention on the Law of the sea, in: The International Journal of Marine and Coastal Law, 1998, n°2, 263-273; LARSON D. e.a.
  • An Analysis of the Ratification of the UN Convention on the Law of the Sea, in: Ocean Development & International Law, 1995, n°3, 287-303; ANDERSON D.,
  • Legal Implications of the Entry Into Force of the UN Convention on the Law of the Sea, in: International and Comparative Law Quarterly, 1995, 313-326.

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