United Nations Convention on the Law of the Sea

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United Nations Convention on the Law of the Sea
UNCLOS logo.png
Logo of the Convention
Signed10 December 1982
Location Montego Bay, Jamaica
Effective16 November 1994 [1]
Condition60 ratifications
Signatories157 [2]
Parties 168 [2] [3]
Depositary Secretary-General of the United Nations
LanguagesArabic, Chinese, English, French, Russian, and Spanish
Wikisource-logo.svg United Nations Convention on the Law of the Sea at Wikisource

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 the quad-treaty 1958 Convention on the High Seas. UNCLOS came into force in 1994, a year after Guyana became the 60th nation to ratify the treaty. [1] 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.

Contents

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). (The ISA was established by the UN Convention.)

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. [4] All waters beyond national boundaries were considered international waters: free to all nations, but belonging to none of them (the mare liberum principle promulgated by Hugo Grotius). [5]

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. [6] ) 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).[ citation needed ]

By 1967, only 25 nations still used the old 3-mile (4.8 km) limit,[ citation needed ] while 66 nations had set a 12-nautical-mile (22 km) territorial limit[ citation needed ] and eight had set a 200-nautical-mile (370 km) limit.[ citation needed ]As of 28 May 2008, only two countries still use the 3-mile (4.8 km) limit: Jordan and Palau. [7] 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.[ citation needed ]

UNCLOS I

Territorial waters claims by coastal states in 1960 [8]
Breadth claimNumber of states
3-mile limit26
4-mile limit3
5-mile limit1
6-mile limit16
9-mile limit1
10-mile limit2
12-mile limit34
More than 12-miles9
Unspecified11

In 1956, the United Nations held its first Conference on the Law of the Sea (UNCLOS I) at Geneva, Switzerland. UNCLOS I [9] resulted in four treaties concluded in 1958:

Although UNCLOS I was considered a success, it left open the important issue of breadth of territorial waters. [8]

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. [8] 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.[ citation needed ]

UNCLOS III

Sea areas in international rights (Top view) Zonmar-en.svg
Sea areas in international rights (Top view)

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:

Internal waters
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. A vessel in the high seas assumes jurisdiction under the internal laws of its flag State. Pursuit of a ship by the Coastal State may only take place in the internal waters and is required to end when reaching the contiguous zone.[ citation needed ]
Territorial 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 their 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. [10] Foreign vessels have right of innocent passage through archipelagic waters (like territorial waters).
Contiguous zone
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. [11] This makes the contiguous zone a hot pursuit area.
Exclusive economic zones (EEZs)
These extend 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.
Continental shelf
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. [12]

Landlocked states are given a right of access to and from the sea, without taxation of traffic through transit states. [13]

Part XI and the 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. [14] 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. [15]

Part XII – Protecting the Marine Environment

Part XII of UNCLOS contains special provisions for the protection of the marine environment, obligating all States to collaborate in this matter, as well as placing special obligations on flag States to ensure that ships under their flags adhere to international environmental regulations, often adopted by the IMO. The MARPOL Convention is an example of such regulation. Part XII also bestows coastal and port States with broadened jurisdictional rights for enforcing international environmental regulation within their territory and on the high seas. [16]

Biodiversity Beyond National Jurisdiction

In 2017, the United Nations General Assembly (UNGA) voted to convene an intergovernmental conference (IGC) to consider establishing an international legally-binding instrument on the conservation and sustainable use of biodiversity beyond national jurisdiction (BBNJ). Over a series of four sessions between 2018 and 2020, the IGC will convene for negotiations towards a BBNJ treaty. [17]

Parties

Parties
Parties, dually represented by the European Union
Signatories
Non-parties United Nations Convention on the Law of the Sea parties.svg
  Parties
  Parties, dually represented by the European Union
  Signatories
  Non-parties

The convention was opened for signature on 10 December 1982 and entered into force on 16 November 1994 upon deposition of the 60th instrument of ratification. [1] The convention has been ratified by 168 parties, which includes 167 states (164 member states of the United Nations plus the UN Observer state Palestine, as well as the Cook Islands, Niue and the European Union). [2]

In early August 2019 United States created International Maritime Security Construct to prevent escalation of the new Gulf crisis.

See also

Related Research Articles

International Seabed Authority international organization

The International Seabed Authority (ISA) is an intergovernmental body based in Kingston, Jamaica, that was established to organize, regulate and control all mineral-related activities in the international seabed area beyond the limits of national jurisdiction, an area underlying most of the world's oceans. It is an organization established by the United Nations Convention on the Law of the Sea.

International waters water outside of national jurisdiction

The terms international waters or trans-boundary waters apply where any of the following types of bodies of water transcend international boundaries: oceans, large marine ecosystems, enclosed or semi-enclosed regional seas and estuaries, rivers, lakes, groundwater systems (aquifers), and wetlands.

Continental shelf A portion of a continent that is submerged under an area of relatively shallow water known as a shelf sea

A continental shelf is a portion of a continent that is submerged under an area of relatively shallow water known as a shelf sea. Much of the shelves were exposed during glacial periods and interglacial periods. The shelf surrounding an island is known as an insular shelf.

Territorial waters Coastal waters that are part of a nation-states sovereign territory

The term territorial waters is sometimes used informally to refer to any area of water over which a state has jurisdiction, including internal waters, the territorial sea, the contiguous zone, the exclusive economic zone and potentially the continental shelf. In a narrower sense, the term is used as a synonym for the territorial sea.

Law of the sea International law concerning maritime environments.

Law of the Sea is a body of international law governing the rights and duties of states in maritime environments. It concerns matters such as navigational rights, sea mineral claims, and coastal waters jurisdiction.

Exclusive economic zone Adjacent sea zone in which a state has special rights

An exclusive economic zone (EEZ) is a sea zone prescribed by the 1982 United Nations Convention on the Law of the Sea over which a state has special rights regarding the exploration and use of marine resources, including energy production from water and wind. It stretches from the baseline out to 200 nautical miles (nmi) from its coast. In colloquial usage, the term may include the continental shelf. The term does not include either the territorial sea or the continental shelf beyond the 200 nmi limit. The difference between the territorial sea and the exclusive economic zone is that the first confers full sovereignty over the waters, whereas the second is merely a "sovereign right" which refers to the coastal state's rights below the surface of the sea. The surface waters, as can be seen in the map, are international waters.

Internal waters waters on the landward side of the baseline of a nations territorial waters, except in archipelagic states

According to the United Nations Convention on the Law of the Sea, a nation's internal waters include waters on the side of the baseline of a nation's territorial waters that is facing toward the land, except in archipelagic states. It includes waterways such as rivers and canals, and sometimes the water within small bays.

A baseline, as defined by the United Nations Convention on the Law of the Sea, is the line along the coast from which the seaward limits of a state's territorial sea and certain other maritime zones of jurisdiction are measured, such as a state's exclusive economic zone. Normally, a sea baseline follows the low-water line of a coastal state. When the coast is deeply indented, has fringing islands or is highly unstable, straight baselines may be used.

Territorial claims in the Arctic

The Arctic consists of land, internal waters, territorial seas, exclusive economic zones (EEZs) and high seas above the Arctic Circle. All land, internal waters, territorial seas and EEZs in the Arctic are under the jurisdiction of one of the eight Arctic coastal states: Canada, Norway, Russia, Denmark, Iceland, Sweden, Finland and the United States. International law regulates this area as with other portions of the Earth.

Maritime Security Regimes are codes and conventions of behavior agreed upon by coastal states to provide a degree of security within territorial waters and on the high seas.

Outer Continental Shelf maritime U.S. federal zone of jurisdiction beyond the jurisdiction of the individual states

The Outer Continental Shelf (OCS) is a peculiarity of the political geography of the United States. The OCS is the part of the internationally recognized continental shelf of the United States which does not fall under the jurisdictions of the individual U.S. States.

Australia–Indonesia border international maritime border

The Australia–Indonesia border is a maritime boundary running west from the two countries' tripoint maritime boundary with Papua New Guinea in the western entrance to the Torres Straits, through the Arafura Sea and Timor Sea, and terminating in the Indian Ocean. The boundary is, however, broken by the Timor Gap, where Australian and East Timorese territorial waters meet and where the two countries have overlapping claims to the seabed.

Convention on the Continental Shelf

The Convention on the Continental Shelf was an international treaty created to codify the rules of international law relating to continental shelves. The treaty, after entering into force 10 June 1964, established the rights of a sovereign state over the continental shelf surrounding it, if there be any. The treaty was one of three agreed upon at the first United Nations Convention on the Law of the Sea. It has since been superseded by a new agreement reached in 1982 at UNCLOS III.

United States and the United Nations Convention on the Law of the Sea American involvement in drafting but non-ratification

The United States was among the nations that participated in the third United Nations Conference on the Law of the Sea, which took place from 1974 through 1982 and resulted in the international treaty known as the United Nations Convention on the Law of the Sea (UNCLOS). The United States also participated in the subsequent negotiations of modifications to the treaty from 1990 to 1994. The UNCLOS came into force in 1994. Although the United States now recognizes the UNCLOS as a codification of customary international law, it has not ratified it.

Maritime boundary boundary between marine zones over which countries have rights, or between such zones and international waters

A maritime boundary is a conceptual division of the Earth's water surface areas using physiographic or geopolitical criteria. As such, it usually bounds areas of exclusive national rights over mineral and biological resources, encompassing maritime features, limits and zones. Generally, a maritime boundary is delineated at a particular distance from a jurisdiction's coastline. Although in some countries the term maritime boundary represents borders of a maritime nation that are recognized by the United Nations Convention on the Law of the Sea, maritime borders usually serve to identify the edge of international waters.

East China Sea EEZ disputes

There are disputes between China, Japan, and South Korea over the extent of their respective exclusive economic zones (EEZs) in the East China Sea.

Chukchi Plateau A large subsea formation extending north from the Alaskan margin into the Arctic Ocean

The Chukchi Plateau or Chukchi Cap is a large subsea formation extending north from the Alaskan margin into the Arctic Ocean. The ridge is normally covered by ice year-round, and reaches an approximate bathymetric prominence of 3,400 m with its highest point at 246 m below sea level. As a subsea ridge extending from the continental shelf of the United States north of Alaska, the Chukchi Plateau is an important feature in maritime law of the Arctic Ocean and has been the subject of significant geographic research. The ridge has been extensively mapped by the USCGC Healy, and by the Canadian icebreaker CCGS Louis S. St-Laurent in 2011 and RV Marcus Langseth, a National Science Foundation vessel operated by the Lamont-Doherty Earth Observatory of Columbia University.

Rockall Bank dispute

Several states have claimed interests over the sea bed adjoining Rockall. Denmark, Iceland, Ireland and the United Kingdom have all made submissions to the commission set up under the United Nations Convention on the Law of the Sea (UNCLOS).

Exclusive economic zone of Somalia maritime boundary

The exclusive economic zone of Somalia covers 830,389 km2 in the Indian Ocean. It extends to a distance of 200 nautical miles from the baselines, from which the breadth of the nation's territorial waters is measured. In accordance with Law No. 37 passed in 1972, Somalia's EEZ falls under its territorial sovereignty.

References

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  2. 1 2 3 "United Nations Convention on the Law of the Sea". United Nations Treaty Series . Retrieved 1 December 2013.
  3. "Chronological lists of ratifications of, accessions and successions to the Convention and the related Agreements". United Nations Division for Ocean Affairs and the Law of the Sea. 8 January 2010. Retrieved 24 February 2010.
  4. Akashi, Kinji (2 October 1998). Cornelius Van Bynkershoek: His Role in the History of International Law. Martinus Nijhoff Publishers. p. 150. ISBN   978-9041105998 . Retrieved 12 July 2016.
  5. "The Freedom of the Seas (Latin and English version, Magoffin trans.) – Online Library of Liberty". oll.libertyfund.org. Retrieved 27 January 2017.
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  8. 1 2 3 Major Thomas E. Behuniak (Fall 1978). "The Seizure and Recovery of the S.S. Mayaguez: Legal Analysis of United States Claims, Part 1" (PDF). Military Law Review. Department of the Army. 82: 114–121. ISSN   0026-4040. Archived from the original (PDF) on 28 December 2016. Retrieved 21 July 2014.
  9. UNCLOS I
  10. "UNCLOS 3 Article 51". United Nations Division for Ocean Affairs and Law of the Sea. Retrieved 29 March 2016.
  11. "SECTION 4. CONTIGUOUS ZONE, Article 33". UNCLOS PART II – TERRITORIAL SEA AND CONTIGUOUS ZONE. United Nations. Retrieved 19 January 2012.
  12. Jennifer Frakes, The Common Heritage of Mankind Principle and the Deep Seabed, Outer Space, and Antarctica: Will Developed and Developing Nations Reach a Compromise? Wisconsin International Law Journal. 2003; 21:409
  13. This is a principle that was first developed in the Convention on Transit Trade of Land-locked States.
  14. Case No. 17 – Responsibilities and Obligations of States Sponsoring Persons and Entities With Respect to Activities in the Area – Advisory Opinion, Seabed Disputes Chamber of the International Tribunal for the Law of the Sea (1 February 2011)
  15. International Tribunal on the Law of the Sea Finally Renders Advisory Opinion Establishing that the Precautionary Principle is Incorporated Within UNCLOS Law, ITSSD Journal on the UN Law of the Sea Convention (22 March 2011)
  16. Jesper Jarl Fanø (2019). Enforcing International Maritime Legislation on Air Pollution through UNCLOS. Hart Publishing.
  17. INTERGOVERNMENTAL CONFERENCE ON MARINE BIODIVERSITY OF AREAS BEYOND NATIONAL JURISDICTION un.org

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