WHY IS UNCLOS IMPORTANT?

“A constitution for the oceans”: Huge scope and detail:

 320 Articles, Annexes and implementing agreements

 In 2013, 165 of 193 UN Member states were parties
 The US, while not a party, accepts MOST OF UNCLOS as binding customary international law

WHAT DOES UNCLOS COVER?

UNCLOS includes rules for coastal states on:

 Territorial sea & innocent passage

 Foreign Commercial Shipping
 Contiguous (customs) zone
 Exclusive Economic Zone (200 NM)
 Continental Shelf

Special rules on:

 Status of archipelagos
 Guarantees of navigation
 Through international straits
 Rights of access to the sea for landlocked states

And rules on:

 Use of the high seas (including fishing and conservation)

 Marine pollution from shipping and land
 Marine scientific research
 Dispute Resolution

A major controversy:

Seabed mining beyond national jurisdiction (the Area)

WHY WOULD STATES NEGOTIATE A LAW OF THE SEA?

Some useful ideas from scholarship: Balancing interest and reciprocity

McDougal and Burke, Public Order of the Oceans (1968) saw the law of the sea as balancing:

 The exclusive interests of coastal or flag states (e.g coastal fisheries or control of flag vessels on
the high seas), and
 The inclusive (or general) interests of all states (e.g. freedom of navigation or high seas fishing).

The key to balancing these different interests.

Rules of the territorial sea provide an example.

Gidel, Le Droit International Public de la Mer (1932):

  Such balancing could imply a false opposition: a coastal state can also be a flag state—it wants
both control over its waters and freedom of navigation in other states’ waters.

Reciprocity plays a role. You only propose rules you are prepared to be bound by.

The history of the law of the sea in the 20 th century is one of both codification (placing existing rules in
writing) and progressive development (negotiating new rules).

The League of Nations and UN provided a forum for both, largely through treaty-making.

THE LAW OF THE SEA IN TREATIES

Treaty law and the law of the sea:

 League of Nations Hague codification conference (1930)

 The first UN Conference on the Law of the Sea (1958)
 The second UN Conference on the Law of the Sea (1960)
 The third UN Conference on the Law of the Sea (1973-1982)

1930 League of Nations Hague codification conference

Territorial sea debated but no treaty adopted:

 A majority support the idea of sovereignty over the territorial sea;

 However, no consensus on the breadth of the territorial sea;
 Should the old canon shot rule be replaced by a three, four, or six nautical mile rule?

Division between great naval powers (UK, US) and coastal states.

TREATY NEGOTIATIONS AT THE UN

The 1st UN Conference on the Law of the Sea (1958)

Following WWII, control over maritime natural resources becomes crucial. President Truman issues his
proclamations on the continental shelf and on fisheries. Codification of the law of the sea becomes an
important issue, and the UN International Law Commission (ILC) begins a project to produce draf
articles on the topic.

The ILC works on the issue from 1949 to 1956 and produces its ‘Articles Concerning the Law of the Sea’
for the United Nations General Assembly.

The ILC Articles form the basis for negotiations in Geneva in 1958: the first United Nations Conference on
the law of the sea (UNCLOS I).

Four conventions are produced on:

 The territorial sea and the contiguous zone

 The high seas
 Fishing and conservation of the living resources of the high seas
 The continental shelf

As well as an optional protocol concerning the compulsory settlement of disputes.

One key issue goes unresolved: the width of the territorial sea. (However, the contiguous zone could not
exceed 12 nm baselines.)

The 2nd UN Conference on the Law of the Sea (1960)

The second UN Conference on the Law of the Sea (1960) called to resolve the deadlock on the width of
the territorial sea. A proposal for a 6 mile territorial sea plus a 6 mile contiguous zone fails by one vote.

The 3rd UN Conference on the Law of the Sea (1973-1982)

Several developments suggested the need for a new convention:

 Seabed resources
 Fisheries
 Protection of the Marine Environment
 Decolonization

Seabed Resources

Large parts of the deep seabed are covered with polymetallic nodules rich in valuable materials (nickel,
cobalt, etc).

At the time, new estimates of the quantity of polymetallic nodules on the abyssal plane or deep seabed
plus new technology suggested there would be a ‘gold rush’ of deep sea mining.

However, should all this wealth go to developed states that already had the necessary technology?

Fisheries

An increasing number of states were asserting 200 nm exclusive fisheries zones off their coasts.

Protection of the Marine Environment

Pollution had not played much role in previous conventions, but the Tony Canyon oil spill of 1967 made
the issue more prominent.

Decolonization and the Emergence of New States

The shape of the international community had changed since the 1950s with emergence of many newly
independent states.

-Because many of the major issues were closely related, diplomat Arvin Pardo proposed a new
comprehensive law of the sea convention was needed thus, the 3 rd UN Conference.

LONG AND DIFFICULT NEGOTIATIONS

 Long-running (1973-1982)
 Negotiation by consensus
 ‘The package deal’
 Huge subject matter
The scope and length of negotiations meant that much of the work had to proceed in committees. Many
of the negotiations were advanced by groups representing particular interests.

The package deal meant that this was to be a convention to which parties could not enter reservations:
you accepted all of it or none of it, there was no picking and choosing.

Coupled with consensus decision-making, this meant that the entire convention was a finely balanced
set of trade-offs between different interest groups.

The result was a vast and seemingly comprehensive convention, referred to by Ambassador Tommy Koh
as a ‘constitution for the oceans’.

However, the adoption of the final text was not adopted by consensus—the US forced a vote. Why?

The US and a number of other industrialized states had no concerns about the deep seabed mining
regime established under the UNCLOS.

Everyone agreed that the mining on the seafloor beyond national jurisdiction would require the
supervision of an International Seabed Authority (ISA).

Developing states wanted a strong Highly industrialized states that had

ISA, internationally controlled
mining, and production controls and
technology transfer requirements.
corporations investing in deep sea
mining wanted a weak ISA, a
commercial mining system and
protection for private companies’
investments and technology.

The complex ISA established under the Convention was unacceptable to developed states. However,
without their participation no seabed mining would occur (they had the technology).

The result was the so-called implementation agreement of 1994. It created a simplified ISA: developed
states would have greater influence and mining corporations would pay much lower royalties. This had
this strange result, though, of amending the deep seabed mining regime before UNCLOS came into force.

UNCLOS is now the most important treaty governing the uses of the oceans. However, despite the ISA
amendments being designed to meet US objections, the US has still not ratified UNCLOS.