International Laws Of The Sea – Part 4

Pursuant to the earlier topic of Introduction to Maritime Law in Malaysia, published on 22 February 2021, in the coming series the basis and elements of International Laws of The Sea, will be explored.

Third UN Conference on the Law of the Sea (UNCLOS III)

1. Second UN Conference on the Law of the Sea

   Since the four Geneva Conventions had not resolved some important issues within the law of the sea, the UN decided to convene a second conference, UNCLOS II, in 1960, soon after the conclusion of UNCLOS I. UNCLOS II sought to reach agreement on the limits of coastal states’ exclusive control of fisheries exploitation and conservation. The formula proposed for this allowed for a territorial sea of six miles plus an additional six-mile fisheries zone. However, these efforts did not result in any international agreements; the issues of fishing zones and the limits of the territorial sea remained unresolved.
   Those states which had habitually and historically fished in the 3–12 mile zone, those which had wanted a 12-mile territorial sea and those which were advancing the claim of a 200-mile territorial sea, especially from the Latin American region, were not prepared to compromise.
   Since there was no agreement on one of the most crucial issues in the law of the sea – the breadth of the territorial sea – UNCLOS II ended without any international agreement.

2. Third UN Conference on the Law of the Sea

   1. Background to the Conference
      Even though neither UNCLOS I nor UNCLOS II had been able to resolve some crucial issues within the law of the sea, especially the limits of the territorial sea, different states began to assert different claims over the maritime areas off their coasts in the 1960s.
      Following the first major challenge to the centuries-old principle of the freedoms of the seas through the Truman Proclamation of 1945, by which the USA tried to claim for itself the resources of the continental shelf off its coasts, many states began to assert their own unilateral claims to various maritime zones around their coasts in order to safeguard the natural resources therein. Many coastal states were also growing increasingly concerned about the toll taken on coastal fish stocks by long-distance fishing fleets belonging to distant states and about the threat of pollution and waste from transport ships and oil tankers. The massive industrial growth in the post-Second World War period required more petroleum products around the globe and more ships were plying sea routes, resulting in greater pollution of the seas.
      Owing to an escalation in the Cold War at the same time, the navies of the maritime powers were competing to maintain a presence across the globe on the surface waters and even under the sea. The two superpowers of the day, the Soviet Union and the United States, deployed naval forces to project their military power through the acquisition of bases, port visits and by demonstrating support for client states.
      Many states, especially those that were newly independent and those which had decided to pursue a policy of non-alignment, were feeling intimidated and were thus anxious to secure the seas in their region for peaceful purposes. Newly independent archipelagic nations such as Indonesia and the Philippines asserted their right to dominion over the waters that separated their thousands of islands. The momentum to claim regulatory rights over a large area of water to prevent pollution received a further boost in 1970 when Canada asserted its right to regulate navigation in an area extending for 100 miles from its shores.
      This chaotic situation of claims and counterclaims has been nicely summed up in a UN document as follows:
      “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.”
      Thanks to advances in science and technology in the 1960s, oil exploration was moving further and further from land, deeper and deeper into the ocean floor of continental margins. This rush for sea oil was followed by ambitious plans to mine the resources of the seabed.
      The 1960s heralded a new era of exploration and exploitation of the mineral resources of the seas and unregulated competition between states for these resources. Large fishing vessels plying the seas far from their native shores, capable of staying away from port for months at a time, were posing new threats to the fish stocks in different parts of the world, giving rise to anxiety about food security among less technologically advanced states. Incidents such as the so-called ‘Cod War’ between Iceland and the UK, in which British Navy ships were dispatched to rescue a fishing vessel seized by Iceland for violating its fishing rules, demonstrated that states would not hesitate to use the threat of military force to advance and defend their claims to the resources of the seas.
      Iceland had challenged the traditional fisheries rights of other states by declaring a 50-mile limit in July 1971, which was implemented in September 1972 and subsequently extended to 200 nautical miles.
      This claim led to the ‘Cod War’ between the UK and Iceland, and was referred to the ICJ. The Icelandic action, along with that of Canada, which had in the previous year established a 100-nautical mile Arctic waters pollution zone, added to the debate over the maritime limits of coastal states.
      An increase in marine pollution was also giving cause for concern. The four Geneva Conventions of 1958 contained few provisions on the preservation and protection of the marine environment. In addition to the deliberate dumping of waste into the sea, the cases of accidental spillage by large oil tankers such as in the Torrey Canyon incident demonstrated the need for international regulation to establish responsibility for oil spills and other forms of marine pollution.
      In sum, the free-for-all situation in the seas and oceans generated both dangers and promises, risks and hopes. There was a multitude of claims, counterclaims and sovereignty disputes, warranting a further major international conference on the law of the sea to address comprehensively the issues relating to the numerous uses of the seas and oceans. By the end of the 1960s, there was a huge drive to undertake a full-scale review of the extant rules of the law of the sea and adopt a comprehensive set of new rules for the management of the seas and oceans, and the resources therein.
      Accordingly, the UN decided to hold the Third UN Conference on the Law of the Sea (UNCLOS III) in 1973.
      The objective was for a more stable order, promoting greater use and better management of sea and ocean resources and generating harmony and goodwill among states. It was recognised that, in the absence of a comprehensive international framework, legal uncertainties would remain and chaos might accelerate if states went on unilaterally asserting their own rules and offering their own interpretations of the basic principles of the law of the sea, including the freedoms of the seas. Therefore, the need to negotiate and draft a comprehensive framework convention on the law of the sea had become imperative.
   2. Principle of the common heritage of mankind
      A 1970 resolution of the UN General Assembly declaring the deep seabed and the natural resources therein as the common heritage of mankind occupies a special place in the history of the law of the sea. The US Truman Proclamation of 1945 was made in anticipation of the huge importance of the natural resources of the continental shelf. In the 1950s the potential of deposits of mineral resources such as nickel, copper and cobalt ore in the seabed was recognised. In the 1960s numerous companies belonging to technologically advanced states began serious prospecting of the nodule fields to estimate their economic potential. By the late 1960s it was well established that certain parts of the ocean floor contained a huge amount of nodules. Consequently, a group of the most technologically advanced states, including the USA, the UK, Germany and Japan, started to issue licences to companies for the exploration and exploitation of these natural resources.
      Alarmed by these developments, an initiative was launched within the UN to declare the whole area of the deep seabed and its resources as the common heritage of mankind. The idea was proposed by Arvid Pardo, the Maltese Ambassador to the UN. In a speech to the UN General Assembly on 1 November 1967 he urged the nations of the world to work for a comprehensive regime designed to address the looming conflict surrounding the exploitation of the resources of the seas and oceans, the problem of pollution and the need to thwart the superpower rivalry that was spreading to the oceans. He highlighted the problems arising from the conflicting legal claims and their implications for a stable order in the seas and oceans. Pardo called for ‘an effective international regime over the seabed and the ocean floor beyond a clearly defined national jurisdiction’.
      In the period following Pardo’s call, a flurry of diplomatic activities took place resulting, inter alia, in the creation of the United Nations Seabed Committee, the signing of a treaty banning nuclear weapons on the seabed and the adoption of the declaration by the General Assembly that all resources of the seabed beyond the limits of national jurisdiction are the common heritage of mankind. A historic resolution of the UN General Assembly of 1970 declared the resources of the seabed beyond the limits of national jurisdiction to be ‘the common heritage of mankind’. This was designed to prevent states from unilaterally appropriating the resources of the seabed that was part of the high seas. An international mechanism was envisaged to manage the mining of the seabed. For this, an international treaty would be needed.
      These were some of the factors that led to the convening of UNCLOS III in New York in 1973.
   3. Adoption of the 1982 Convention on the Law of the Sea
      UNCLOS III lasted for nine years, during which representatives of more than 160 sovereign states, shuttling between sessions in New York and Geneva, discussed the issues, bargained and traded national rights and obligations in the course of negotiations that eventually produced in 1982 a constitution for the seas – the United Nations Convention on the Law of the Sea.
   4. Key features of the 1982 Convention
      As summarised by the UN Division for Ocean Affairs and the Law of the Sea, the main features of the 1982 Convention are as follows:
      1. Coastal states exercise sovereignty over their territorial sea, for which they have the right to establish the breadth up to a limit not to exceed 12 nautical miles; foreign vessels are allowed ‘innocent passage’ through those waters.
      2. 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.
      3. 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.
      4. 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.
      5. All other states have freedom of navigation and overflight in the EEZ, as well as freedom to lay submarine cables and pipelines.
      6. 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 EEZs of coastal states of the same region or subregion; highly migratory species of fish and marine mammals are accorded special protection.
      7. 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 200 nautical miles from the shore, and more under specified circumstances.
      8. Coastal states share with the international community part of the revenue derived from exploiting resources from any part of their shelf beyond 200 miles.
      9. The Commission on the Limits of the Continental Shelf shall make recommendations to states on the shelf’s outer boundaries when it extends beyond 200 miles.
      10. 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.
      11. 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.
      12. States bordering enclosed or semi-enclosed seas are expected to cooperate in managing living resources, environmental and research policies and activities.
      13. Land-locked states have the right of access to and from the sea and enjoy freedom of transit through the territory of transit states.
      14. 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.
      15. 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.
      16. 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.
      17. States parties are obliged to settle by peaceful means their disputes concerning the interpretation or application of the Convention.
      18. 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.
   5. Current status of the 1982 Convention
      As at 6 November 2017, 168 states plus the European Union were parties to the 1982 Convention; thus, the Convention is approaching universal acceptance. However, the USA has not yet ratified the Convention. For the third time in 20 years, the US Senate set the ball rolling to ratify the Convention, in May 2012. It remains to be seen whether this will result in ratification this time.
      In 2009 President Obama decided that the USA should ratify the 1982 Convention on the Law of the Sea. The USA had participated fully in the negotiations of the Convention, but sought some amendments, particularly to the deep seabed mining regime. This was addressed through a decision adopted in 1994. However, as of May 2017, the US Senate had still not given its approval to ratification.
      An eventual US decision to ratify the Convention should enhance the status of the Convention and its effectiveness.
      Please note that unlike many other treaties the 1982 Convention on the Law of the Sea does not allow states to make reservations. In other words, states have to accept the Convention in its entirety if they wish to become a party to it. However, Article 310 of the Convention allows states and entities to make declarations or statements regarding its application at the time of signing, ratifying or acceding to the Convention, which do not purport to exclude or modify the legal effect of the provisions of the Convention. Many states have availed themselves of this opportunity and have made such declarations and statements.
      Article 310 reads:
      Article 310
      Declarations and statements
      Article 309 does not preclude a State, when signing, ratifying or acceding to this Convention, from making declarations or statements, however phrased or named, with a view, inter alia, to the harmonization of its laws and regulations with the provisions of this Convention, provided that such declarations or statements do not purport to exclude or to modify the legal effect of the provisions of this Convention in their application to that State.
      Article 287, paragraph 1 provides that states and entities, when signing, ratifying or acceding to the Convention, or at any time thereafter, may make declarations specifying the forums for the settlement of disputes which they accept.
      Article 287, paragraph 1, reads:
      Article 287
      Choice of Procedure
      1. When signing, ratifying or acceding to this Convention or at any time thereafter, a State shall be free to choose, by means of a written declaration, one or more of the following means for the settlement of disputes concerning the interpretation or application of this Convention:
         1. the International Tribunal for the Law of the Sea established in accordance with Annex VI;
         2. the International Court of Justice;
         3. an arbitral tribunal constituted in accordance with Annex VII;
         4. a special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein.

      In addition, Article 298, paragraph 1 allows states and entities to declare that they exclude the application of the compulsory binding procedures for the settlement of disputes under the Convention in respect of certain specified categories and kinds of disputes

      Article 287, paragraph 1, reads:

      Article 287

      Optional exceptions to applicability of section 2

      1. When signing, ratifying or acceding to this Convention or at any time thereafter, a State may, without prejudice to the obligations arising under section 1, declare in writing that it does not accept any one or more of the procedures provided for in section 2 with respect to one or more of the following categories of disputes:
         1. 1. disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles, provided that a State having made such a declaration shall, when such a dispute arises subsequent to the entry into force of this Convention and where no agreement within a reasonable period of time is reached in negotiations between the parties, at the request of any party to the dispute, accept submission of the matter to conciliation under Annex V, section 2; and provided further that any dispute that necessarily involves the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over continental or insular land territory shall be excluded from such submission;
            2. after the conciliation commission has presented its report, which shall state the reasons on which it is based, the parties shall negotiate an agreement on the basis of that report; if these negotiations do not result in an agreement, the parties shall, by mutual consent, submit the question to one of the procedures provided for in section 2, unless the parties otherwise agree;
            3. this subparagraph does not apply to any sea boundary dispute finally settled by an arrangement between the parties, or to any such dispute which is to be settled in accordance with a bilateral or multilateral agreement binding upon those parties;
         2. disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service, and disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction excluded from the jurisdiction of a court or tribunal under article 297, paragraph 2 or 3;
         3. disputes in respect of which the Security Council of the United Nations is exercising the functions assigned to it by the Charter of the United Nations, unless the Security Council decides to remove the matter from its agenda or calls upon the parties to settle it by the means provided for in this Convention.
   6. Summary
      The adoption of the 1982 Convention was a huge triumph of diplomacy and has been described as the result of a ‘silent revolution’ in the history of the law of the sea and in international diplomatic history. It represented an unprecedented attempt by the international community to regulate all major aspects of the resources of the seas and oceans and their uses. It deals with a huge range of areas, including navigational rights, territorial sea limits, economic jurisdiction, the legal status of resources on the seabed beyond the limits of national jurisdiction, the passage of ships through narrow straits, the conservation and management of living marine resources, the protection of the marine environment, a marine research regime, the rights of land-locked states and, a more unique feature, a binding procedure for the settlement of disputes between states. This ‘world constitution for the seas’ was adopted as a ‘package deal’ and had to be accepted as a whole in all its parts without reservation on any aspect.
      The Convention was opened for signature on 10 December 1982 in Montego Bay, Jamaica, and entered into force on 16 November 1994, 12 months after the date of deposit of the 60th instrument of ratification or accession. It comprises 320 articles and nine annexes, governing all major aspects of ocean space.
      However, some industrialised countries, notably the USA, had some reservations with the provisions in Part XI, which deals with mining on the deep ocean floor outside of nationally regulated ocean areas, in what is commonly known as the international seabed area. With a view to bringing these states on board, the Secretary-General of the UN initiated a series of informal consultations among states resulting in the adoption in July 1994 of an Agreement Related to the Implementation of Part XI of the Convention. With this amendment to the original 1982 Convention, the process of putting in place a comprehensive legal regime for the seas and oceans of the world was completed.
      Another major development to take place after the conclusion of the 1994 Agreement, and related to the implementation of the deep seabed mining provisions, was the conclusion in 1995 of an Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks. The Agreement sets out principles for the conservation and management of those fish stocks and establishes that such management must be based on the precautionary approach and the best available scientific information. It elaborates on the fundamental principle, established in the Convention, that states should cooperate to ensure conservation and promote the objective of the optimum utilisation of fisheries resources both within and beyond the exclusive economic zone.
      It attempts to achieve this objective by providing a framework for cooperation in the conservation and management of those resources.
      The Agreement entered into force on 11 December 2001, completing yet another major chapter in the history of the law of the sea.

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This article is written by our Principal Associate, Chakaravarthi