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The Origins of the UN Convention on the Law of the Sea 1982

A short history of UNCLOS
by

Douglas Guilfoyle

on 28 August 2015

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Transcript of The Origins of the UN Convention on the Law of the Sea 1982

The Origins of the UN Convention on the Law of the Sea 1982 (UNCLOS)
The Law of the Sea in treaties
Why is UNCLOS important?
“A constitution for the oceans”: huge scope and detail:
320 Articles, 9 Annexes and 2 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 (incl. fishing and conservation)
marine pollution from shipping and land
marine scientific research
dispute resolution
A major controversy: Seabed mining beyond national jurisdiction (the Area)
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.

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 is balancing these different interests.
Rules on use of the territorial sea provide an example.
Why would States negotiate a law of the sea?
Some useful ideas from scholarship: balancing of interests and reciprocity.
Dr Douglas Guilfoyle
The history of the law of the sea in the 20th century is one of both codification (placing existing rules in writing) and progressive development (negotiating new rules).
Law of the Sea in the 20th century
The League of Nations and UN provided a forum for both, largely through treaty-making.
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 cannon 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 first UN conference on the law of the sea (1958)
Following World War II, 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 draft 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 from baselines.)
The second United Nations conference on the law of the sea 1960 (UNCLOS II)
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 third UN Conference on the Law of the Sea 1973 – 1982 (UNCLOS III)
Several developments suggested the need for a new convention:
Seabed resources
Fisheries
Protection of the marine environment
Decolonisation
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?
Large parts of the deep seabed are covered with pollymetalic nodules rich in valuable materials (nickel, cobalt, etc).
Pollymetalic nodules
Seabed resources
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 Tory Canyon oil spill of 1967 made the issue more prominent.
Decolonisation and the emergence of new states: the shape of the international community had changed since the 1950s with the emergence of many newly independent states.
Because many of the major issues were closely related, diplomat Arvid Padro proposed a new comprehensive law of the sea convention was needed.
Long and difficult negotiations
Key features of the 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 Ambassdor 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 industrialised states had concerns about the deep seabed mining regime established under 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 ISA, internationally controlled mining, and production controls and technology transfer requirements.
Highly industrialised states that had 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.
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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.
Nonetheless, the US accepts much of UNCLOS as binding customary international law and is bound by 1958 Geneva Conventions.
Further reading:
RR Churchill and V Lowe, The Law of the Sea (3rd ed, 1999), pp. 13-24
D Rothwell and T Stephens, The International Law of the Sea (2010), pp. 1-19
Y Tanaka, The International Law of the Sea (2012), Chapter 5
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