United Nations Convention on the Law of the Sea

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.

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 developed by Cornelius Bynkershoek. 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 territorial 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.

In the United States there is vigorous debate over ratification of the treaty, with criticism coming mainly from political conservatives who consider it 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, a majority of the United States Senate, and the Pentagon favor ratification, as do representatives of scientific, international legal scholar, mining, and environmentalist groups.

"The treaty... would put 70 percent of the Earth's surface under the despot-loving, corrupt and unaccountable "governance" of the United Nations." -Oliver North

The arguments against the treaty fall into these main categories:

-National sovereignty: The treaty limits US legal authority by granting power to a United Nations-created agency with its own court and bureaucracy, as part of a general expansion of international power. Ultimately treaty-based laws could be enforced against the US.

-War on terror: The treaty limits US military activities especially relevant to anti-terror operations, such as intelligence collection and submerged travel in coastal waters (Articles 19, 20) and the boarding of ships for anti-terror purposes (Art. 110). Other provisions such as Articles 88 and 301 limit the sea to "peaceful purposes," which is said to restrict all military operations.

-Navigation rights not threatened: One of the treaty's main selling points, legally recognized navigation rights on, over, and under straits, is unnecessary because these rights are not currently threatened by law or by any military capable of opposing the US.

-Redistribution of wealth: The treaty would force the US to pay taxes to the United Nations, further increasing the UN's power.

-Redistribution of technology: The treaty would force US businesses to turn over economically and militarily relevant technology to other countries.

-Undesirable precedent: The treaty paves the way for increased power of Non-governmental organizations over the US and other nations.

"The United States is simply not going to shoot our way to acceptable resolution of oceans disputes with Canada, Chile, Brazil, India, Italy and other democracies." -J.N. Moore and W.L. Schachte

The response to these criticisms is a vigorous denial of their truth. A compilation of arguments by Prof. John Norton Moore of the University of Virginia Law School and Adm. William L. Schachte addresses the criticism as follows:

-Existing compliance: The US already has accepted many parts of the treaty via the UN Charter and the 1958 Geneva Conventions, and by Ronald Reagan's executive order already considers itself bound by the 1982 version of the treaty but for the mining provisions of Part XI.

-International law: The anti-UN arguments against compliance with this treaty apply to all international agreements, so that a position that the US must not bind itself in any way is a rejection of the principle of international diplomacy.

-Straits rights needed: There are more than 100 straits used for navigation, making many countries capable of cutting off waterways crucial to defense and the majority of US trade. A single international regime is a more practical means of enforcing navigation and overflight rights than a collection of two-party agreements with potentially hostile countries.

-Dispute settlement: The International Seabed Authority's jurisdiction applies only to seabed mining, and the Law of the Sea Tribunal offers several alternative forms of arbitration. The treaty offers a peaceful way to resolve disputes with Canada, India, and other republics. In contrast, without treaty compliance the US has no peaceful recourse if another non-signatory party like Iran decides to close its straits to navigation, making war more likely.

-Military activities unrestricted: The treaty is understood not to apply to wartime or to ban military activies such as the travel of warships, or to restrict any nation's right to self-defense. The Senate made these assertions as well in the proposed advice and consent bill. If military operations such as the Iraq War would be illegal under the treaty, they are already illegal under agreements the US has accepted. Therefore the treaty does not further restrict US military and anti-terror actions. To the extent that the US seeks greater authority to stop, search, and seize vessels on the high seas, it implies that other nations should have the same rights against US ships and crew.

-Expansion of authority: The treaty actually expands US territory and authority by recognizing a 200-mile Exclusive Economic Zone around all coasts, including those of Alaska and Hawaii, roughly doubling the geographic area considered US property.

-No taxation: The International Seabed Authority's "modest revenue sharing provisions... and certain fees" shoud not be considered "taxes," because they represent a sale of access rights similar to land sales, are less than comparable licensing fees charged by countries for coastal mining operations, and go only to the ISA itself rather than to the UN.

-Necessity for mining: The United States presently lacks a developed seabed mining industry and will continue to do so until the treaty is adopted, because American companies refuse to make the necessary billion-dollar-scale investments until they can be assured of internationally recognized, exclusive economic control over mineral deposits.

-Other economic interests: Fisheries and less prominent industries such as undersea cable layers stand to suffer from US non-compliance, possibly taking their business to other countries.

-Onerous mining provisions removed: The ISA, under the 1994 Agreement, has been redesigned to eliminate socialist-style production controls, and it no longer mandates technology transfer.

-Positive precedent: The revised mining provisions now grant the US a permanent veto power over the ISA's spending, a power not shared with any other nation, making the US able to deny funding to the PLO and other disfavored states.

-Overwhelming support: All the major US interest groups including the military, intelligence agencies, and economic, scientific, and environmental groups support the treaty and consider it favorable to US interests.

Overall, Moore and Schachte believe that the defects in the treaty cited by Reagan have been addressed, so that the treaty now represents a large potential gain for US rights and interests with no downside. They consider criticism of the treaty to be founded in ignorance of its actual provisions and in some cases, outright dishonesty.

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

General:

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.

Anti-treaty articles:

Deep-six this treaty GAFFNEY F., in Washington Times, 2004 February 24.

Donovan, Carrie E. "The Law of the Sea Treaty." Heritage Foundation, 2004 April 2. ^*

LOST at sea GAFFNEY F., in Washington Times, 2004 May 4.

Protect U.S. Sovereignty: Sink the Law of the Sea Treaty GAFFNEY F., in Human Events Online. 2005 January 28. ^*

Should the U.N. Be Lord of the Oceans? BUCHANNAN P., 2005 February 28. ^*

Trojan Horse sea law NORTH O., in Washington Times, 2005 April 3.

Pro-treaty:

The Senate Should Give Immediate Advice and Consent to the Law of the Sea Convention: Why the Critics Are Wrong MOORE J. and SCHACHTE W., in Columbia Journal of International Affairs, Vol. 59 Issue 1.

External links

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