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United Nations Convention on the Law of the Sea

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 from 1973 through 1982. The Law of the Sea Convention defines the rights and responsibilities of nations in 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 four 1958 treaties. UNCLOS came into force in 1994, a year after Guyana became the 60th state to sign the treaty. To date 156 countries and the European Community have joined in the Convention. The United States has signed the treaty, but the Senate has not ratified it. However, it is now regarded as a codification of the Customary international law on the issue.

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 (the latter being established by the UN Convention).

Historical background

The UNCLOS replaces the older and weaker '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, according to the 'cannon shot' rule developed by the Dutch jurist Cornelius Bynkershoek. 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 Grotius).

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.) Using the customary international law principle of a nation's right to protect its natural resources, President 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, Argentina, Chile, Peru, and Ecuador extended their rights to a distance of 200 nautical miles to cover their Humboldt Current fishing grounds. Other nations extended their territorial seas to 12 nautical miles.

By 1967, only 25 nations still used the old 3-mile limit, while 66 nations had set a 12-mile territorial limit and eight had set a 200-mile limit. As of May 28, 2008, only two countries still use the 3-mile limit: Jordan and Palau. 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 UK dependencies, such as Anguilla.

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:

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

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. Generally speaking, developing nations and third world countries participated only as clients, allies, or dependents of United States or the Soviet Union, with no significant voice of their own.

UNCLOS III

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 November 16, 1994, one year after the sixtieth 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. Territorial waters : Out to 12 nautical 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 its 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 full sovereignty over these waters (like internal waters), but foreign vessels have right of innocent passage through archipelagic waters (like territorial waters).Contiguous zone : Beyond the 12 nautical mile limit there was a further 12 nautical miles or 24 nautical miles from the territorial sea baselines limit, the contiguous zone, in which a state could continue to enforce laws regarding activities such as smuggling or illegal immigration.Exclusive economic zones (EEZs) : Extend 200 nautical miles from the baseline. Within this area, the coastal nation has sole exploitation rights over all natural resources. 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 4000 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 from the coastal state’s baseline, whichever is greater. State’s continental shelf may exceed 200 nautical miles until the natural prolongation ends. However, it may never exceed 350 nautical miles from the baseline; or it may never exceed 100 nautical 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.

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 state's territorial waters or EEZ. It establishes an International Seabed Authority (ISA) to authorize seabed exploration and mining and collect and distribute the seabed mining royalty.

Signature and ratification

Opened for signatureDecember 10, 1982.

Entered into forceNovember 16, 1994.

Countries that have signed, but not yet ratified — (22) Afghanistan, Bhutan, Burundi, Cambodia, Central African Republic, Chad, Colombia, Dominican Republic, El Salvador, Ethiopia, Iran, Democratic People's Republic of Korea, Libya, Liechtenstein, Malawi, Niger, Rwanda, Swaziland, Switzerland, Thailand, United Arab Emirates, United States.

Countries that have not signed — (17) Andorra, Azerbaijan, Ecuador, Eritrea, Israel, Kazakhstan, Kyrgyzstan, Peru, San Marino, Syria, Tadjikistan, Timor-Leste, Turkey, Turkmenistan, Uzbekistan, Vatican City, Venezuela.

United States non-ratification

The United States strongly objected to the provisions of Part XI of the Convention on several grounds, saying that the treaty is unfavorable to America's economy and security. The US felt that the provisions of the treaty were not free-market friendly and were designed to favor the economic systems of the Communist states. The US also felt that the provisions might result in the ISA becoming a bloated and expensive bureaucracy due to a combination of large revenues and insufficient control over what the revenues could be used for.

Due to Part XI, the US refused to ratify the UNCLOS, although it expressed agreement with the remaining provisions of the Convention. Even though the United States is not a party to the treaty, it considers many of the remaining provisions as binding as customary international law.

Revision of the UNCLOS

From 1983 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.

U.S. Debate

In the United States there is vigorous debate over the ratification of the treaty, with criticism coming mainly from political conservatives who consider involvement in some international organizations and treaties as detrimental to US national interests. A group of Republican senators, led by Jim Inhofe of Oklahoma, has blocked American ratification of the Convention, claiming that it would impinge on US sovereignty. The Bush administration, a majority of the United States Senate, and the Pentagon favor ratification. In addition, various special interests including scientific and international legal scholars, and mining and environmentalist groups have also expressed support.

Arguments

Pro-ratification arguments

  • The environment: Oceans cover over 70 percent of the Earth. In the US, there are laws to keep marine resources available for future generations. UNCLOS sets a legally binding international standard which aims to protect the marine wildlife and environment.
  • National security: The US military, which relies heavily on its ability to freely navigate on and fly over the sea, has been a strong advocate of UNCLOS. In the absence of treaty law, the US relies on customary law that can change as states' practices change. Also, under this customary law, the Pentagon claims that countries often make unreasonable and irresponsible claims on marine territory that frustrates US military action. The US has tried to work around these claims, but without a legal framework to support them, the Pentagon believes it risks compromising its intelligence and military operations at sea.
  • International diplomacy and peaceful dispute resolution: The Convention offers a peaceful way to resolve territorial and natural resource disputes through the ISA or the International Tribunal for the Law of the Sea, based on agreements which signatory parties have already committed to. In contrast, without ratification, the US has no peaceful recourse if another non-signatory party decides to close its straits to navigation.
  • It helps American businesses: Each country has exclusive rights to manage the resources in areas near its coast. Under the terms of UNCLOS, which maps out the boundaries of these areas, the American zone is larger than that of any other country in the world. The size of this zone is 3.36 million square miles — bigger than the lower 48 states combined. In addition, under UNCLOS, coastal states can exercise sovereign rights over natural resources within the extended continental shelf area beyond this territory. It would also give US companies an opportunity to apply for licenses with the ISA, which manages claims to resources in the deep seabed, an area over which no country has sovereign rights.

Anti-ratification arguments

  • National sovereignty: The treaty creates the International Seabed Authority (ISA) with its own dispute resolution tribunal. However, should the US stop its current compliance with the US-negotiated laws of the Convention, the U.S. could not be taken to the Law of the Sea Tribunal since the U.S. has indicated that it would choose binding arbitration rather than availing itself of the International Tribunal on the Law of the Sea.
  • The environment: Some of the Convention's conservation provisions would provide new avenues for non-US environmental organizations to affect domestic US environmental policies by pursuing legal action in both US and international courts. In addition, requirements that nations either harvest their entire allowable catch in certain areas or give the surplus to other nations could result in mandated overfishing.
  • Taxation: The license fees and taxes levied on economic activities in the deep seabed area by the ISA would be, in effect, a form of 'taxation without representation'. Citizens would be indirectly taxed through business and governmental activities in the area.
  • Economics: Businesses can already exploit resources from the international area; ratifying the treaty would force them to buy licenses for that right and pay taxes on the proceeds.
  • 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.
  • Harm to de-militarizing operations: The treaty would require all unmanned ocean vessels, including submarines used for mine detection to protect ships exercising the right of innocent passage, to navigate on the surface in territorial waters to be entitled to the right of innocent passage. The operative language is identical to that contained in the 1958 Convention on the Territorial Sea and Contiguous Zone to which the U.S. is already a party.
  • No control over funding: The treaty gives a blank check to the UN, funded by the US. The US would have no control over how the money is used.
  • Eminent domain: The treaty applies eminent domain to intellectual property giving the UN the power to seize technology and share it with potentially enemy states.
  • Lack of need: The U.S. already honors almost all the provisions of the treaty. For practical purposes, there is no pressing need to ratify it that outweighs the negatives of the remaining provisions. Any perceived benefit of an improved U.S. image world-wide is likely to be illusory.

Latest developments

On April 24, 2004 Jeane Kirkpatrick (Reagan Administration United Nations Ambassador 1981-1985), testified against United States ratification of the treaty before the Senate Armed Forces Committee, in which she argued that "Viewed from the perspective of U.S. interests and Reagan Administration principles, it was a bad bargain," and that "its ratification will diminish our capacity for self-government, including, ultimately, our capacity for self-defense."

On April 11, 2006, the 5-Member UNCLOS Annex VII Arbitral Tribunal, presided over by H.E. Judge Stephen M. Schwebel, rendered after two years of international judicial proceedings, the landmark Barbados/Trinidad and Tobago Award, which resolved the maritime boundary delimitation (in the East, Central and West sectors) to satisfaction of both Parties and committed Barbados and Trinidad and Tobago to resolve their fisheries dispute by means of concluding a new Fisheries Agreement.

On May 15, 2007, President Bush announced that he had urged the Senate to approve the UNCLOS. ] On October 31, 2007, the Senate Foreign Relations Committee voted 17-4 to send the treaty to the full U.S. Senate for a vote.

On September 20, 2007, an Arbitral Tribunal constituted under UNCLOS issued its decision on a longstanding maritime boundary dispute between Guyana and Suriname, which contained a ruling favoring Guyana.

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.

Pro-treaty resources

  • "Time to Ratify the Law of the Sea" Don Kraus, Vice President of Government Relations for Citizens for Global Solutions, in Foreign Policy in Focus, June 6, 2007. http://www.fpif.org/fpiftxt/4286.
  • "Take ACTION to Help Us Ratify the Law of the Sea Treaty" Citizens for Global Solutions, June 7, 2007. http://www.globalsolutions.org/node/728.
  • President Bush Supports the Law of the Sea Convention, Assistant to the President for National Security Affairs letter to the Chairman of the Senate Foreign Relations Committee, 2007 February 8.
  • Barbados/Trinidad and Tobago and XXVII UNRIAA 147 and Award Series
  • Barbados/Trinidad and Tobago Analysis and Award's Map and Lathrop's Map and 22 IJMCL 7-60 2007 and 2008 Revision and NILOS Articles and 37 GWILR pp.573-620 2007 No.3 and Catalogue
  • 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.
  • "The Law of the Sea Convention: The Case for Senate Action," Senator Richard Lugar, Address at Brookings Institute, 2004 May 4. http://www.brook.edu/comm/events/20040504lugar.htm
  • "Evaluating the Impact of the Law of the Sea Treaty on Future Offshore Drilling, " Paul Kelly, Senior Vice President, Rowan Companies, Inc., Global Offshore Drilling 2005 Conference, 2005 April 19. http://www.clgd.org/downloads/unclos/GlobOffDrlg05.pdf
  • "The Law of the Sea Convention: A National Security Success," Commander James Kraska, Symposium in Remembrance of Louis B. Sohn, The George Washington University School of Law, 2006 October 24. http://www.clgd.org/downloads/Kraska_LOS_24Oct06.pdf
  • "Ocean Treaty Good for US," David Sandalow, The Washington Times, 2004 May 16. http://www.brook.edu/views/op-ed/fellows/sandalow20040516.htm
  • "Another Side of the Sea Treaty Debate," Professor Bernard Oxman, The Washington Times, 2005 April 5. http://www.clgd.org/modules.php?op=modload&name=News&file=article&sid=129&mode=thread&order=0&thold=0
  • "How the Law of the Sea Convention Benefits the United States," Benjamin Friedman and Daniel Freidman, Bipartisan Study Group, 2004 November 20. http://www.gsinstitute.org/docs/11-20-04_UNCLOS.pdf
  • "A U.N. Treaty We Can All Support," Captain George Galdorisi, USN(Ret.), Naval Institute Proceedings, 2003 March, pp. 74-77. http://stinet.dtic.mil/cgi-bin/GetTRDoc?AD=ADA457971&Location=U2&doc=GetTRDoc.pdf

Anti-treaty resources

  • Law of the Sea Treaty Information Center http://www.unlawoftheseatreaty.org
  • Ridenour, David A. "Ratification of the Law of the Sea Treaty: A Not-So-Innocent Passage," National Center for Public Policy Research, August 2006 http://www.nationalcenter.org/NPA542LawoftheSeaTreaty.html
  • Rabkin, Jeremy. "The Law of the Sea Treaty: A Bad Deal for America," Competitive Enterprise Institute, June 1, 2006 http://www.cei.org/pdf/5352.pdf
  • Edwin Meese, III, Baker Spring and Brett D. Schaefer, "The United Nations Convention on the Law of the Sea: The Risks Outweigh the Benefits," The Heritage Foundation, May 16, 2007 http://www.heritage.org/Research/InternationalOrganizations/wm1459.cfm
  • Donovan, Carrie E. "The Law of the Sea Treaty," Heritage Foundation, April 2, 2004 http://www.heritage.org/Research/InternationalOrganizations/wm470.cfm
  • Gaffney, Frank. Deep-Six this Treaty Washington Times, February 24, 2004
  • Cohen, Bonner. "Law of the Sea Treaty Could Prove Dangerous to America," National Center for Public Policy Research, November 2005 http://www.nationalcenter.org/NPA534LawofSea.html
  • Schlafly, Phyllis. "Deep-Six the Law of the Sea," Townhall.com, May 21, 2007 http://www.townhall.com/columnists/PhyllisSchlafly/2007/05/21/deep-six_the_law_of_the_sea
  • Gaffney, Frank. LOST at Sea Washington Times, May 4, 2004
  • 'Gaffney, Frank. 'Protect U.S. Sovereignty: Sink the Law of the Sea Treaty''] Human Events Online, January 28, 2005 http://www.humanevents.com/article.php?id=6431
  • Buchanan, Patrick J. Should the U.N. Be Lord of the Oceans? February 28, 2005 http://www.theamericancause.org/a-pjb-050228-lordoftheoceans.htm
  • North, Oliver. Trojan Horse Sea Law Washington Times, April 3, 2005

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