1.0 INTRODUCTION
The
1982 United Nations Convention on the Law of the Sea (UNCLOS) is one of the
most important international treaties in contemporary international law. Its
lengthy text, consisting of 320 articles plus 9 annexes, deals with a range of
issues of vital economic importance to many States that had been left unregulated, or had been insufficiently regulated, in
the previous 1958 Conventions on the Law of the Sea. Negotiations leading to
its adoption lasted a marathon nine years (1973-1982), and its coming into force
had to await another 12 years (November 1994), following its 60th
ratification.[1]
As the main Constitution of the ocean, it defines
rights and responsibilities of member nations in their use of the world’s
oceans, establishing guidelines for businesses, the environment and management
of marine natural resources.
2.0 HISTORICAL BACKGROUND
Prior
to 20th Century, the ocean was considered no-man’s land, left open
for any state landlocked or otherwise to navigate and exploit it. This was on
the basis of the doctrine ‘Freedom of the Sea’ propounded by Hugo Grotius and
adopted as an official statement by most countries. The doctrine adopted in the
early 17th century, limited national rights and jurisdiction over a
narrow band of water along a nations
coast, the rest of the sea being free to all and belonging to none.
It
was only a century later that the ‘cannon shot rule’ was adopted to determine
how much of the adjacent ocean’s were under the jurisdiction of a nation.[2]
In
the 18th century, this range was approximated as three nautical
miles. For a long time these simple rules provided effective governance of the
world’s oceans a fact attributed to slow pace of technology developments.
However, this changed in the 19th century in particular mid-19th
century and early 20th century. This is because of the advent of
technological advancement that cut across the western world. The industrial
revolution churned out new and powerful products. In the shipping industry not
only did the ships become more powerful, but technology allowed humanity to
exploit ocean resources that had never before being envisioned. For instance
fishermen once limited to areas near their own coasts could stay at the sea for
longer times capturing plenty fish all courtesy to new equipped vessels.
Overtime being virtually unrestrained, fleets around the world travelled to
unexploited virgin grounds.
The
lack of constraint eventually resulted to depletion of fish stocks around the
world without regard to the stability of the number of fish. In addition,
evolving technologies enabled exploitation of previously inaccessible off-shore
resources, most notably oil and also diamonds, gravel and precious metals. For
instance in 1947, off-shore oil production in the Gulf of Mexico stood at less
than a million tons. By 1954, production had grown close to 400 million tons.[3]
In
order to protect local resources (biological or minerals) nations began
expanding their claims of sovereignty beyond the traditional three-mile limit.
For instance, U.S through the Truman Proclamation[4] set a claim of sovereignty by US to the outer
continental shelf and resources therein.[5]
Argentina, in 1950, actively claimed a wider continental shelf as well as water
column above it. Ecuador, Chile and Peru
were asserting rights over 200 mile zone etc.
This led to the growing understanding of the
weaknesses of that existing regime and that an immediate solution was only
proper. This phase ushered subsequent 3 conferences ie the UNCLOS I, UNCLOS II,
and UNCLOS III.
UNCLOS
I
In
recognition of the flaws of the current regime, the General Assembly adopted
Resolution 1105 (XI). This resolution called for the convening of the UN
Convention on the Law of the Sea held in Geneva 1858. The meeting produced;
ü The
Convention on the Territorial Sea and Contiguous Zones
ü The
Convention on the High Seas
ü The
Convention on Fishing and Conservation of the Living Resources of the High
Seas.
ü The
Convention on the Continental Shelf.
ü Optional
Protocol of Signature concerning the compulsory settlement of disputes
Although
a significant step, there were still many issues which were left unsettled.
UNCLOS
II
In
an attempt to deal with the unresolved issues left by UNCLOS I, the General
Assembly convened UNCLOS II. The parties met in 1960 to deliberate on the
breadth of the territorial seas and fishery limits. While the conference
adopted two resolutions, the parties were unable to come to a consensus on the
issues at hand.
UNCLOS
III
The
General Assembly upon call from Mr. ArvidPardo[6]
the General Assembly adopted Resolution 2467 A (XXIII) and Resolution 2750 C
(XXV) which created the Committee on the Peaceful Uses of the Sea-bed and the
ocean floor beyond the limits of a national jurisdiction and called for the
convening of the third law of the sea meeting to be held in 1973. The
deliberations lasted for 9 years, saw the participation of 160 nations and
concluded in 1982 with the UNCLOS. While UNCLOS was first signed in December
1982, the agreement did not come into force until November 1994, a period of 12
years. UNCLOS required 60 signatures for ratification and could only enter into
force one year after the final nation had ratified or acceded to the treaty.[7]
3.0
SALIENT FEATURES OF THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA
1)
Divisions of Oceans and Seabed Areas
One of the most powerful features of the United
Nations Convention on the Law of the Sea is that it settled the question of the
extent of national sovereignty over the oceans and seabed. Parts II, V, VI, and VII of the Convention established the
various regions of the oceans, who has sovereignty over each, and to what
degree.
a)
Baselines
The baseline is the boundary from which a nation may
begin measurements to determine the portion of the adjacent oceans or
continental shelf over which it may exercise sovereignty. Except in some
special cases, the baseline is the low-water line along the coast.
Detailed explanations of how baselines are
determined are provided in Articles
5-7 and 9-14. Special rules have also been established for determining
the baselines of archipelagic nations[8] in Article
47.
b)
Internal Waters
Internal waters are those that are contained on the
landward side of the baseline. These waters fall under the exclusive
sovereignty of the nation in which they are contained.
c)
Territorial Sea
Article
3 of United Nations Convention on the Law of the Sea
declares that a nation may establish a territorial sea that extends up to 12
nautical miles from the baselines. Within the territorial sea, a nation has
exclusive sovereignty over the water, seabed, and airspace.
The treaty establishes that all nations have the
right of innocent passage through the territorial sea of another nation and
that, outside certain conditions, the nation laying claim to the territorial
sea cannot hamper innocent passage of a foreign vessel. United Nations
Convention on the Law of the Sea adopted the basic concepts of the territorial
sea and the right of innocent passage that had been codified in the Convention
on the Territorial Sea and the Contiguous Zone. However, it went a step further
by establishing the limits of a nation's territorial sea.
By the late 1960's many nations recognized a 12-mile
limit to the territorial sea. At the start of the UNCLOS, only twenty-five
nations maintained the traditional claim of 3 nautical miles. Sixty-six nations
were claiming 12 nautical miles, fifteen nations claimed between 4 and 10
nautical miles, and eight nations were claiming an astounding 200 nautical
miles. Smaller nations, including those without large navies or merchant
fleets, favored a larger territorial sea in order to protect their coastal
waters from infringements by more powerful nations. The world's major naval and
maritime powers, however, pressed for the 3-mile rule because the 12-mile rule
would have placed over 100 straits used for international navigation under the
exclusive sovereignty of other nations. Some of these included the Strait of
Gibraltar[9],
the Strait of Hormuz[10],
and the Strait of Malacca[11].
Due to the ongoing Cold War during the Convention,
smaller nations were concerned about the possibility of threats to their
national security posed by warships of foreign nations or even the possibility
of becoming embroiled in the conflicts of foreign powers. In an attempted
compromise, the small nations offered the larger maritime powers the right of
innocent passage, however, the maritime powers were not satisfied with this
offer. The problem, in the view of the great powers, was that restrictions to
innocent passage would prohibit covert or underground movements of vessels such
as submarines and did not guarantee overflight rights, thereby creating a
security risk.
Ultimately, the parties came together to form a
compromise known as "transit passage." Applied specifically to
straits that would otherwise fall within the territorial sea of a nation,
transit passage applies to straits used for international navigation between
one part of the high seas to another and allows for "navigation and
overflight solely for the purpose of continuous and expeditious transit of a
strait...." In all other ways aside transit passage, the waters of a
strait still remain the territorial sea of the adjacent nation.
d)
Contiguous Zone
The Contiguous Zone is a region of the seas measured
from the baseline to a distance of 24 nautical miles. Within this region, a
nation may exercise the control necessary to prevent the infringement of its
customs, fiscal, immigration or sanitary laws and regulations within its
territory or territorial sea, and punish infringement of those laws and
regulations committed within its territory or territorial sea.
e)
Exclusive Economic Zone
The Exclusive Economic Zone or "EEZ" is a
region that stretches a distance of no more than 200 nautical miles from a
nation's baselines. Generally, the rules regarding the High Seas, set forth in Articles 88 to 115, apply to the
EEZ. Within its EEZ, a nation may explore or exploit the natural resources
(both living and inanimate) found both in the water and on the seabed, may
utilize the natural resources of the area for the production of energy
(including wind and wave/current), may establish artificial islands, conduct
marine scientific research, pass laws for the preservation and protection of
the marine environment, and regulate fishing.
One of the primary purposes behind establishing the
EEZ was to clarify the rights of individual nations to control the fish
harvests off their shores[12].
The creation of the EEZ gave coastal nations
jurisdiction of approximately 38 million square nautical miles of ocean space.
The world's EEZs are estimated to contain about 87% of all of the known and
estimated hydrocarbon reserves as well as almost all offshore mineral
resources. In addition, the EEZs contain almost 99% of the world's fisheries,
which allows nations to work to conserve the oceans vital and limited living
resources.
f)
Continental Shelf
Unlike the other maritime divisions, the continental
shelf is a real, naturally-occurring geological formation. It is a gently
sloping undersea plain between the above-water portion of a landmass and the
deep ocean. The continental shelf extends to what is known as the continental
slope, a point at which the land descends further and marks the beginning of
the ocean itself. It is host to most of the world's oceanic plant and animal
life and plays a vital role in energy production, from offshore oil and gas
reserves to renewable energy resources.
When UNCLOS refers to the continental shelf,
however, it is using "continental shelf" as a legal term. While the
EEZ captures a lot of the continental shelf for many countries, it does not
capture all of it. As such, UNCLOS includes provisions for nations to lay claim
to a continental shelf that exceeds 200 nautical miles from the baseline by
establishing the foot of the continental slope as set forth in Article 76, paragraphs 4-7.
These provisions allow for an extension of an additional 150 nautical miles
from the baseline or 100 miles from the 2,500 meter depth. Nations exercise
over the shelf the sovereign right to explore and exploit the non-living
natural resources of the continental shelf as well as the living organisms that
live on the seabed itself. The water above the portion of the continental shelf
that is not contained within the EEZ remains part of the high seas as does the
airspace above that area. Nations wishing to request an extension of
sovereignty over an extended portion of their naturally occurring continental
shelf must do so within 10 years of UNCLOS coming into force for that
particular nation.
The extension of sovereignty to the extended
continental shelf comes with a price. A nation that exploits resources on the
continental shelf beyond the 200 nautical mile mark is allowed five years in
which to develop and exploit the resources of the shelf without charge.
Starting on the sixth year, a nation has to pay 1 percent of the value of the
resources produced from the site. The rate of payments increase by 1 percent
for each year until the twelfth year and is capped at 7 percent thereafter.
Developing nations are exempted from this provision. Revenues generated from
these operations are deposited with the International Seabed Authority and
equally distributed among national parties to UNCLOS.
g)
High Seas
Waters beyond a nation's EEZ are considered to be
the high seas. The high seas are still governed the "freedom of the
seas" concept. No nation my lay claim to any portion of the high seas. The
high seas are open to all States, whether coastal or land-locked. On the high
seas, nations are permitted freedom of navigation and overflight, freedom to
lay submarine cables and pipelines, freedom to construct artificial islands,
freedom of fishing, and freedom of scientific research. The Convention makes
provisions which prohibit the transport of slaves, piracy, illegal drug
trafficking, and the suppression of unauthorized radio or television
broadcasting on the high seas.
h)
The Area
The "Area" is the seabed and ocean floor
that is beyond the limits of national jurisdiction. This is the portion of the
seabed that is beyond the EEZ or the recognized continental shelf of a country.
It would be inaccurate to say that the Area is the seabed underneath the high
seas, since the high seas can overlap portions of continental shelf that are
subject to national sovereignty. The Area is particularly unique in that UNCLOS
designates it and the resources it contains as "the common heritage of
mankind." No nation is allowed to lay claim to any part of the Area or its
resources. Regarding the resources, " all rights in the resources of the
Area are vested in mankind as a whole...." As a result, companies that
wish to exploit the mineral resources of the Area will have to enter into a
profit sharing agreement in which the profits derived from mineral resources
captured in the Area will be shared with developing nations.
2)
Creation of Agencies by the United Nations Convention on the Law of the Sea.
In order to ensure the effective administration of
the United Nations Convention on the Law of the Sea, the treaty created four
bodies to handle specific issues:
a) Commission on the
Limits of the Continental Shelf
The Commission on the Limits of the Continental
Shelf was created to implement Article
76 of the treaty. Article 76 allows for a nation to extend sovereignty
over a portion of the continental shelf beyond the limits of the EEZ. The
Commission is comprised of 21 members who are specialists in the fields of
geology, geophysics, or hydrography and are elected by the Nations Parties to
the Convention. Members of the Commission are charged with evaluating data
submitted by a coastal nation requesting an extension of sovereignty over an
extended portion of their naturally occurring continental shelf. The Commission
was established and derives its authority from Annex II of the Convention.
b) International Seabed
Authority
The International Seabed Authority is the
organization that is responsible for the governance of the Area. Article 156 of the Convention
mandates the creation of the Seabed Authority. All nations that have agreed to
be bound by UNCLOS are automatically members of the Authority. The Authority is
comprised of three bodies: the Assembly, the Council, and the Secretariat.
i)
The
Assembly
The Assembly acts as a legislative organ in which
each member nation has one representative. The Assembly is vested with, among
others, the power to decide how revenues derived from deep seabed mining will
be distributed and the power to set policy regarding activities in the Area and
oversight of its management.
ii)
The
Council
The Council is a body comprised of 36 persons who
represent various members of the Authority itself (the nations bound by the
treaty). Members of the Council are elected by the Assembly and serve for a
term of four years. The Council acts as the executive branch of the Authority
and has the power of establishing the specific policies to be pursued by the
Authority. Other powers of the Council include establishing subsidiary
agencies, as may be necessary, to carry out the functions of the Council,
approve or reject work plans related to the Area, oversee the collection of
payments made to the Authority, and institute proceedings against a member
nation in the Seabed Disputes Chamber.
Within the Council there are two Commissions: the Economic Planning Commission and the Legal and Technical Commission. Each
Commission is comprised of members elected by the Council from a list of
candidates nominated by the nations that are bound by UNCLOS. Members of either
Commission serve for a term of five years and must have no personal financial
connections related to exploration or exploitation of resources within the
Area.
Members of the Economic Planning Commission are
required to have qualifications in the areas of mining, management of mineral
resources, international trade, or international economics and it is required that
at least two members of the Commission are from developing nations whose
mineral exports be the same as those being mined from the seabed. The primary
function of the Economic Planning Commission is to expound upon the
relationship between the minerals being mined, the effect mining has on global
prices for the mineral in question, and the effect changes in price may have on
developing nations.
Members of the Legal and Technical Commission are
required to have qualifications in the areas of exploration, exploitation, and
processing of mineral resources, oceanology, protection of the marine
environment, or either economic or legal matters relating to the ocean mining
industry. It is the responsibility of the Commission to review written plans
for work activities to be conducted in the Area, prepare assessments of the
environmental implications of activities in the Area, make recommendations to
the Council regarding environmental protection of the Area, and to calculate
the production ceiling and issue production authorization on behalf of the
Authority.
iii)
The
Secretariat
The Secretariat of the Authority is comprised of the
Secretary-General and his or her staff. The Secretary General is elected for a
term of four years. Nominations for Secretary-General are made by the Council
and voted on by the Assembly. The Secretary-General serves as the chief
administrative officer of the Authority and is required to make an annual
report to the Assembly on the work of the Authority.
c) The Enterprise
Article
170 calls for the formation of an agency called
"the Enterprise." The purpose of the Enterprise is to coordinate the
exploration and exploitation of resources in the area. Annex IV of the treaty details the composition and
governance of the Enterprise, however, since deep seabed mining has yet to
start, the Enterprise has never been called into action.
d) International Tribunal
for the Law of the Sea
Annex VI of UNCLOS
establishes the International Tribunal for the Law of the Sea[13].
It is a permanent international court with expertise in law of the sea matters
that sits in Hamburg, with a Statute closely resembling that of the ICJ in The
Hague. It came into operation on 1st October 1996. It has
jurisdiction over all disputes and applications submitted to it in accordance with
the Convention and all matters specifically provided for in any other agreement
which confers jurisdiction on it. The Tribunal is open to States Parties, and
in certain circumstances, to entities other than States.
The Tribunal is comprised of 21 members, no two of
which may be from the same member nation. Members of the Tribunal serve for a
period of nine years, after which they are eligible for re-election to the
Tribunal. The Tribunal has formed a number of Chambers including the Chamber of
Summary Procedure, the Chamber for Fisheries Disputed, the Chamber for Marine
Environment Disputes, and the Chamber for Maritime Delimitation Disputes. The
Tribunal is also the home of the Seabed Disputes Chamber, which is responsible
for adjudicating disputes pursuant to Part
XI, Section 5 of UNCLOS, which governs settlements of disputes that
arise from deep seabed activities.
4.0
CRITICISMS AND WEAKNESSES OF THE UNITED NATIONS CONVENTION ON THE LAW OF THE
SEA
The Convention places so much reliance
on national legislation to implement its provisions. This is a weakness on the
part of the Convention because nations may not view such legislation as
priority.
The Convention is also criticized and
seen as weak for relying on national administration by the contracting parties.
Some countries have shown a willingness to excuse violations that have happened
abroad. Likewise, not all states prioritize conservation of marine resources
and therefore little emphasis has been given to development of effective
legislation in this area. This has led to weak national enforcement and
regulation. Consequently, this has led to the emergence of ‘flags of
convenience’ nations.
The Convention has also been criticized
in that the jurisdictional breakdown of sovereignty as per the maritime zones
does not take care of the natural order of the marine ecosystem. For instance,
provisions of the Treaty that govern protection of fish stocks do not take into
account the totality of ecosystems where such species thrive (e.g. the breeding
areas and migratory patterns and routes of stocks), but rather focus on the
territorial jurisdiction of the areas where these fish are to be found. The unfortunate
outcome of this approach is that different parts of the fish stock’s ecosystem
will fall under different territories of coastal states and therefore in the
absence of application of uniform conservation measures, the protection goals
of the Treaty may not be easily realized. This has been seen to hamper the
cohesive management of marine resources.
Profit sharing provisions related to
deep seabed mining have similarly been criticized as being contradictory to
free-market capitalism practices i.e. any country with capacity should have the
freedom to mine the seabed without unnecessary fetters. However, this criticism
seems misplaced if placed in the context of environmental conservation and
preservation. The requirement of profit sharing may be depicted as a tool for
environmental conservation as it acts as a bar for states which are unwilling
to share profits from exploiting the minerals in the deep seabed. It also
appears economical in that the fact that the profits of mining are shared with the
developing countries acts as a booster for the economy of the developing
countries, who actually may not even be equipped with the necessary technology
to engage in such mining activities.
Explosion of piracy cases off Somalia’s
coast is also viewed as a manifestation of a critical weakness in UNCLOS. The
treaty did not anticipate inability of a State to protect its coastal waters as
a result of state collapse and failure as it happened in Somalia. Likewise, the
treaty did not contemplate acts of piracy occurring within the territorial
waters of a state (e.g. within Somalia’s coastline. Such acts are therefore
difficult to criminalize and punish in the absence of a government (e.g. in the
case of Somalia). This perhaps explains why prosecution of Somali piracy cases
in Kenya have hit perennial legal snags.
5.0
CONCLUSION
Despite the weaknesses and critics
lodged against the United Nations Convention on the Law of the Sea, the
significance of the treaty in the regulation, conservation and preservation of
the oceans and seas is unmatched. This is clearly visible from the features
which mark the treaty and the provisions of the treaty which have taken aboard
environmental considerations with regard to
the use, exploration and exploitation of the marine resources.
REFERENCES
v Hollis,
D. Rosen, T. ‘United Nations Convention on the Law of the Sea (UNCLOS), 1982.’ www.eoearth.org
(Accessed on 5th November 2011).
v Barnes
R, Freestone D, Ongeds D. (2006). The Law of the Sea: Progress and Prospects.
Oxford. Oxford University Press.
v A.G.
Oude, Elferink. (2005). Stability and Change in the Law of the Sea: The Role of
the Law of the Sea Convention. Leiden: MortinusNijhoff Press.
v Bodansky
D, Brunnes J, Ellen H. (2010). The Oxford Handbook of International
Environmental Law. Oxford. Oxford University Press.
v United
Nations Convention on the Law of the Sea, 1982.
v Brownlie,
I. (2008). ‘Principles of Public International Law.’ 7th ed. Oxford University Press,
New York.
[1]Christopher, Staker, 2005, Prompt Release
Cases Before International Tribunal for the Law of the Sea, available at http://www.un.org/Depts/1os/convention (Accessed on 12th November 2011).
[2] The cannon-shot rule set forth that a nation
controlled a territorial sea as far as a projective could be fired from a
cannon-based on the coastline or the shores of the land.
[3]United States Energy Information
Administration, Gulf of Mexico Fact Sheet, Available at http://www.iea.doe.gov/oog/special/Gulf/Gulffactsheet.html.(Accessed on 8th November 2011).
[4] Signed and approved by Harry Truman on 28th
September 1945.
[5]President Harry S. Truman,
President Truman’s Proclamations on US Policy concerning Natural Resources of
Sea Bed and Fisheries on High Seas, available at www.ibiblio.org/pha/policy/1945/450928a. html. (Accessed on 9th Nov.
2011)
[6]Malta’s Ambassador to the US. Upon being frustrated by the continuing
inconsistency in the ocean governance regime, He called upon the General
Assembly to take action and called for ‘’ an effective international regime
over the sea bed and the ocean floor” that clearly defined national
jurisdiction.
[7]The reason why many nations why many nations took so long to sign the
treaty is because of Article 309 which prohibits nations from taking out
reservations to any part of the treaty. A reservation is a statement made by a
nation when accepting a treaty, whereby it excludes or modifies the legal
effect of certain provisions of a treaty as those terms apply to the nation
accepting the treaty. The inability of a nation to take out reservations to
particular terms of treaty caused many nations to hesitate.
[8]These are nations
that consist of a number of small islands such as the Philippines
[9]The
only open access to the Mediterranean
[10]The
only passage to the oil-producing Persian Gulf and Gulf of Oman nations
[11]The main
route connecting the Pacific and Indian Oceans
[12]The
200-mile limit established by the Convention is not an arbitrary number. It is
derived from the fact that the most lucrative fishing grounds lie within 200
nautical miles from the coast as this is where the richest phytoplankton, the
basic food of fish, pastures lie.
[13]The United
Nations Convention on the Law of the Sea contains provisions with respect to
settlement of disputes arising under it. Disputes may be settled by any
peaceful means chosen by the parties, but if no such settlement is reached, the
dispute must be submitted for binding decision either to the International Tribunal
for the Law of the Sea (the Tribunal or ITLOS), the International Court of
Justice (ICJ), an arbitral tribunal constituted in accordance with Annex VII of
the Convention, or a special arbitral tribunal constituted in accordance with
Annex VIII of the Convention.
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