Law Sea Convention

Three Decades Of The Law Of The Sea Convention: Is It A Success?

Introduction

The oceans cover 70 per cent of the earth’s surface, and constitute the most extensive and yet the least understood ecosystem known to mankind. There have been long standing efforts to conserve this resource and a lot of debate has gone into arriving at a set of comprehensive laws that govern the exploitation of this invaluable resource. With pollution becoming a major concern for the modern-day mankind, it has only become increasingly apparent that conservation of marine living resources present much more complex problems of regulation and management than hitherto envisaged during the centuries which they have been exploited by humans. As a result of the years of debate and disagreement among nations over a conclusive law on this subject, the United Nations Convention on the Law of the Sea (hereinafter UNCLOS), was adopted and opened for signature in the year 1982. The UNCLOS was the result of an instruction by the General Assembly Resolution that convened UNCLOS III, to arrive at a single thorough treaty that deals with the law of the sea, including issues such as fishing and marine scientific research.

UNCLOS defines the rights and responsibilities of member nations in their use of the world’s oceans, and establishes guidelines for businesses, the environment, and the management of marine natural resources. The Convention, concluded in 1982, replaced four 1958 treaties dealing with law of the seas. Much of the Convention is considered to be declaratory of customary international law. UNCLOS covers a large number of areas that govern our ocean and marine resources. It provides for a comprehensive definition of pollution of the marine environment under Article 1. Moreover, it covers issues ranging from freedom of the high seas, right of innocent passage to provisions for development of laws for conservation and protection of the marine environment.

However, with almost three decades of this Convention coming into existence, it has become important to take an account of the achievements as well as the shortcomings that UNCLOS has presented. One needs to ask, how successful has this convention been in achieving the goals that it set out to achieve? The aim of the researcher in the present research paper is to look into the question whether after three decades of the United Nations Convention on the Law of the Sea, has the Convention been a success or a failure? There are a large number of provisions in the Convention and for the purpose of this paper the researcher shall make an analysis as to how successful has the Convention been in tackling environmental issues. The present paper shall first delve into a brief overview of the Convention and then proceed to some issues of concern in the Convention and its provisions with special focus on the issue of exclusive economic zones and the related environmental questions attached to establishment of fisheries in the high seas. The researcher shall look into some provisions of UNCLOS related to conservation and protection of the environment and whether these provisions cater to the need of marine resource conservation or do they need to be amended to meet the modern-day crisis of marine pollution staring mankind in the face. The researcher shall also make a criticism of the lacunae present in the UNCLOS that fail to deal with the issue of oceanic degradation and related issues better. The researcher shall conclude with a final word on the success or failure of the Convention on the whole.

Background And Provisions Of Unclos: A Brief Overview

The Law of the Sea was needed due to the weakness of the older 17th century concept of the ‘freedom of the seas’. Earlier, national rights were limited to a specified belt of water extending from a nation’s coastlines, usually three nautical miles or 6 kilometres. All water beyond national boundaries was considered international waters – free to all nations but belonging to none of them.

With the ushering in of the 20th century, states began to demand sovereignty over the the seas close to their territories. Their claims of sovereignty included national claim over the mineral resources, to protect fish stocks and to have the develop methods of controlling pollution of the oceanic resources. Sadly, protection of marine environment was not given special importance in the Geneva Conference on Law of the Sea in 1958, and the Geneva Conventions have little to say on the subject. UNCLOS sets out extensive provisions for conducting marine scientific research and for marine environment protection, which find applicability for nation states within and outside their national jurisdiction. Under UNCLOS states can be held liable for all activities which may affect the marine environment, regardless of where they are conducted, including the high seas. At the end of the nine years that the Convention took for finalising, there were new legal concepts that were evolved such as exclusive economic zones (hereinafter EEZs), outer limit of continental shelfs, scientific research, the special status of the deep-sea bed, settlement of disputes etc. New institutions such as the International Seabed Authority and International Tribunal on the Law of the Sea were also created as a result of UNCLOS, to regulate the various aspects of marine resource management.

The primary change introduced by UNCLOS was the introduction of EEZs upto the limit of 200 nautical miles. There was a lot of effort put into the negotiations regarding coastal states and the effective management of their resources. The adoption of the EEZs gave coastal states sovereign rights over the resources to be found in a 200-mile maritime zone. The concept of the exclusive economic zone was primarily designed to satisfy the legitimate interests of coastal states in adjacent maritime areas, establishing clear limits to the sovereign rights of coastal states over the living resources to be found in the zone. The exclusive economic zone for the fisheries therefore, removes this zone from the high seas common property regime. There is neither freedom of fishing for other states or unfettered freedom of scientific research. It also adopts special rules for certain species of fish and marine mammals. Despite the co-ordinated ecosystem strategies referred to earlier, UNCLOS does not provide any mechanism for co-ordinating either existing fisheries commissions or the relationship between fisheries conservation and other conservatory conventions in general.

With regards to attribution of jurisdiction over conservation and use of marine living resources this Convention was an important step forward. There are also various aspects related to fisheries that this convention discusses. Article 3 of UNCLOS established a 12-mile limit for the territorial sea, over which the coastal state has sovereignty, subject to provisions of UNCLOS and other principles of international law, including any conservatory conventions which that member state may be party to. UNCLOS also talks of archipelagic states and gives them the liberty to draw straight baselines joining the outermost points of their outer islands and reefs. The enclosed area constitutes the territorial sea of the archipelagic state. Under Article 51 however, such a state is bound to respect existing agreements with neighbouring states and recognise their traditional rights related to the sea. Such states however, need to take measures for conservation of fish in their EEZ, subject to Article 61 of the UNCLOS, which talks about the conservation of the living resources.

UNCLOS also addresses the issue of preserving marine life in the continental shelf area. A continental shelf is a relatively shallow area of seabed over which a great deal of marine life is found. Coastal states bordering this region have sovereign rights over the seabed mineral resources found in this area. Even though this Convention does not clearly lay down the position on the sovereignty over the shallow area near the continental shelf, but like the Continental Shelf Convention of 1958, UNCLOS includes the ‘living organisms belonging to sedentary species’ within its definition of the ‘natural resources’ of the continental shelf over which the coastal state may exercise its rights. These organisms are defined as ‘organisms which at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or subsoil. However, considering the ambiguity of this definition, there was doubt concerning which of these resources were excluded from the high seas definition of the high seas freedom of fishing.

The position regarding continental shelf is such that if continental shelf extends beyond 200 nautical miles, the waters beyond this limit will not be covered under the protective provision of the EEZ. Moreover, even though the shelf resources will be under the exclusive control of the coastal state, sedentary species in this furthermost area are removed both from high seas freedom of fishing and from EEZ requirements for optimum utilisation and access to any surplus stocks. Where UNCLOS differs from Continental Shelf Convention is that the latter made provisions to check any ‘unjustifiable interference’ to navigation, fishing scientific research, or conservation of living resources of the sea, whereas the former is relatively much less specific with regard to conservation matters.

With regard to deep seabed organisms, UNCLOS presents a problem as it does not define clearly which legal regime is applicable to the varied species of micro-organisms, fish, crustaceans, molluscs etc, which are found inhabiting the deep seabed and are known to be of great value for their genetic make and for research purposes. The Convention is silent when it comes to defining the laws for their use in scientific research or commercial purposes. UNCLOS has spoken only when it comes to mineral resources in the deep seabed and therefore, has yet again left considerable vagueness in the provision of law governing the deep seabed organisms. This may lead to exploitation of these resources and cause damage to the biodiversity in this area.

With respect to the high seas, it has been known that many species of fish migrate between EEZs and the high seas and many species of marine mammals spend a considerable part of their lives there during migrations between feeding and breeding grounds. Part VII of UNCLOS recognises a state’s right for their nationals to engage in fishing on the high seas, subject to existing treaty obligations and to the rights and duties and interests of the coastal states towards conserving migratory species of organisms found in these areas, i.e., between the EEZs and the high seas, in keeping with the provisions of the Convention under Articles 63-67.

A special mention should be made of Article 63(2) which obliges coastal states and states fishing stocks beyond EEZs to seek ‘to agree on the measures necessary to co-ordinate and ensure the conservation and development of such stocks’. The cause of concern here is that this Article sets out an either-or provision for conservation, meaning thereby, that state parties under this Article may take measures for conservation either ‘directly’ or through appropriate regional or sub-regional organisations. This means that the latter is not a compulsion and may be given a pass by the states. Furthermore, under Article 118, there are provisions set out for cooperation between states exploiting the same resources in the same area to ‘enter into negotiations for taking necessary conservation measures’. Then again, there is no express provisions for a concrete body or institution under which such negotiations can be carried out. Leaving ambiguous provisions calling for negotiations between states leaves scope for non-compliance of the provision as well the danger of each state party pursuing their own selfish interest without paying much heed to conservation. These Articles unlike Article 61 which has been aforementioned, do not call for ensuring proper means of conservation and management measures and therefore, leave the oceanic living resources under these regions susceptible to over-exploitation.

These are some general provisions of UNCLOS regarding the various aspects and divisions of the ocean and its resources. Let us now make an analysis into the success or failure of the UNCLOS in terms of management of oceanic resources.

Three Decades Of Unclos : A Success Or Failure??

UNCLOS makes extensive provisions regarding conduct of marine scientific research and marine environmental protection. Other international instruments further complement, enhance and implement the marine environmental protection provisions of UNCLOS and are continually evolving in response to our growing understanding of the ocean and the effects of our activities on it. Evolution of principles such as the precautionary and polluter-pays principles as well as ecosystem-based management are examples of efforts taken in this regard. However, the marine scientific research provisions have not been developed equally well under UNCLOS. To ensure that the right to obtain potentially commercially valuable information on resources within its marine jurisdiction remains with the coastal state, the MSR regime and state practice effectively remove over one-third of the ocean from scientific examination. This situation hampers the global community’s ability to identify, investigate and assess the effects of the community’s activities on the global marine environment, and to develop scientifically robust policies for its sustainable use.

One can also sense a disjunction between marine scientific research and environment protection regimes, especially in case of experimental activities that intentionally introduce perturbations into the marine environment and these activities are only increasing everyday with more and more technological developments. Such experiments conducted in the ocean to obtain important scientific data enhances our knowledge of the ocean and contributes valuable information on the marine environment. However, such work may also have significant environmental effects, which may even become synergistic or additive, with unknown consequences for the marine environment.

When countries first came together for the Third United Nations Conference on the Law of the Sea in 1974, the developing countries were determined to play a pro-active role in formulating new and comprehensive laws to manage oceanic resources. They were convinced that freedom of the seas would have to be regulated in accordance wit and balanced against the needs of all nations to safeguard their economic interests as well as their national security and sovereignty. The long-standing laissez faire policy with respect to the high seas had ceased to serve international justice and was being exploited by few powerful countries to monopolise the marine resources. UNCLOS tried to change this practice but did not succeed to a large extent.

Through the creation of high seas, and more importantly through the adoption of conflicting concepts of mare liberum, sovereignty, and resource management, UNCLOS unwittingly has allowed for the over-exploitation of migratory marine species on the high seas. The overexploitation has focused on a few developed nations at the detriment of the majority of developing nations. Attempts to regulate the migratory species through the creation of Regional Fisheries Organizations (hereinafter RFOs) has led to conflict between notions of mare liberum, or freedom of the high seas, and internationally accepted principles of sovereignty.

A better method for regulating migratory marine species has been shown through unilateral state action in the form of trade embargos. Further, suggestions to redefine certain areas of the high seas in an attempt to create strong management controls without destroying notions of mare liberum and sovereignty have been suggested. One of these proposed solutions seems to focus on the power of developed nations, and it is questionable whether developing nations will benefit from the protection of resources on the high seas.

It should however, be kept in mind that UNCLOS has not entirely failed. Compared to the 44 countries and the 86 and 88 participants in the 1930, 1958 and 1960 Conferences, respectively, UNCLOS III started with 137 participating countries in 1974 and then this number rose to 156 in 1976. Also, even during the third conference, with the large number of participants, there was a lot of discord among the countries and yet credit should be given to the nations for evolving a largely comprehensive law at the end of the conference. We have already discussed how a large number of regulatory bodies were established under the aegis of UNCLOS such as those regulating the seabed, and International Tribunal on the Law of the Sea, etc. Even though it is still not very well-defined, UNCLOS also has tried to regulate and streamline scientific research. Furthermore, it has tried largely to lay down provisions for protection of environment and marine resources.

Therefore, if one were to make a final judgment on the success or failure of the UNCLOS after three decades of its existence, one would have to say that the answer would be midway between success and failure. There is no hard and fast judgment that one can make on the achievement of the Convention, as we have seen that certain negatives as well as positives have both been thrown in due course of this paper. Professor Vezijl, a noted scholar who was present at the 1958 Conference can be quoted to describe the UNCLOS after three decades to be “as a whole, it has been a success”. As for the failures of the Convention, one can only hope that the shortcomings and the lacunae existent in the UNCLOS can be amended and steps can be taken to improve upon the provisions which fall short on meeting their desired goals. One will truly see a just and fair regulation of the marine resources and will be able to take adequate measures to save our precious oceans and all the resources it had to offer.

Bibliography

Books:

Anand, Ram Prakash, 1982, ‘Origin and Development of the Law of the Sea: History of International Law’, Martinus Nijhoff Publishers, Netherlands, available online at http://books.google.co.in/books?id=UcGG8UIkEsoC&printsec=frontcover&dq=development+of+law+of+the+sea&source=bl&ots=aku5JC_OM_&sig=lZ5OtJLOXmkJ0wIKvZr-joSWZ5s&hl=en&ei=XMa6S5nDB8qprAf58oW7Bw&sa=X&oi=book_result&ct=result#v=onepage&q&f=false, last visited on March 31, 2010

Birnie, P.W. and A.E. Boyle, 2002, ‘International Law and the Environment’, Oxford University Press, New Delhi, 2nd Edition

Boyle, Alan and David Freestone (eds.), 1999, ‘International Law and Sustainable Devlopment – Past Achievements and Future Challenges’, Oxford University Press, New York

Sands, Philippe and Paolo Galizzi (eds.), 2004, ‘Documents in International Environmental Law’, Cambridge University Press, Cambridge

Journals Articles:

Freestone, David, ‘A Decade of the Law of the Sea Convention: Is it a success?’, 39 Geo. Wash. Int’l L. Rev. 499 2007

McDorman, Ted L., ‘The 1982 Law of The Sea Convention: The First Year’, 15 J. Mar. L. & Com. 211 1984

Online Sources:

Anonymous, ‘Unclos And The High Seas: Problems and Suggested Solutions to the Creation of a Common Pool Resource on an International Scale’, available online at http://works.bepress.com/cgi/viewcontent.cgi?article=1009&context=chad_mcguire, last visited on April 2, 2010

Verlaan, Philomene, ‘The marine scientific research and marine environmental protection provisions of UNCLOS: implications for experimental activities that intentionally perturb the marine environment’, available online at www.gmat.unsw.edu.au/ablos/ABLOS05Folder/VerlaanAbstract.pdf, last visited on March 30, 2010