The United Nations Convention on the Law of the Sea
|
| Convention on the Territorial Sea and the Contiguous Zone, 1958 | |
| Convention on the High Seas, 1958 | |
| Convention on Fishing and Conservation of the Living Resources of the High Seas, 1958 | |
| Convention on the Continental Shelf, 1958 | |
| Optional Protocol of Signature concerning the Compulsory Settlement of Disputes, 1958 |
The oceans had long
been subject to the freedom of-the-seas doctrine - a principle put forth in the
seventeenth century essentially limiting national rights and jurisdiction over
the oceans to a narrow belt of sea surrounding a nation's coastline. The
remainder of the seas was proclaimed to be free to all and belonging to none.
While this situation prevailed into the twentieth century, by mid-century there
was an impetus to extend national claims over offshore resources. There was
growing concern over the toll taken on coastal fish stocks by long-distance
fishing fleets and over the threat of pollution and wastes from transport ships
and oil tankers carrying noxious cargoes that plied sea routes across the globe.
The hazard of pollution was ever present, threatening coastal resorts and all
forms of ocean life. The navies of the maritime powers were competing to
maintain a presence across the globe on the surface waters and even under the
sea.
A tangle of claims,
spreading pollution, competing demands for lucrative fish stocks in coastal
waters and adjacent seas, growing tension between coastal nations' rights to
these resources and those of distant-water fishermen, the prospects of a rich
harvest of resources on the sea floor, the increased presence of maritime powers
and the pressures of long-distance navigation and a seemingly outdated, if not
inherently conflicting, freedom-of-the-seas doctrine - all these were
threatening to transform the oceans into another arena for conflict and
instability.
In 1945, President
Harry S Truman, responding in part to pressure from domestic oil interests,
unilaterally extended United States jurisdiction over all natural resources on
that nation's continental shelf - oil, gas, minerals, etc. This was the first
major challenge to the freedom-of-the-seas doctrine. Other nations soon followed
suit.
In October 1946,
Argentina claimed its shelf and the epicontinental sea above it. Chile and Peru
in 1947, and Ecuador in 1950, asserted sovereign rights over a 200-mile zone,
hoping thereby to limit the access of distant-water fishing fleets and to
control the depletion of fish stocks in their adjacent seas.
Soon after the
Second World War, Egypt, Ethiopia, Saudi Arabia, Libya, Venezuela and some
Eastern European countries laid claim to a 12-mile territorial sea, thus clearly
departing from the traditional three-mile limit.
Later, the
archipelagic nation of Indonesia asserted the right to dominion over the water
that separated its 13,000 islands. The Philippines did likewise. In 1970, Canada
asserted the right to regulate navigation in an area extending for 100 miles
from its shores in order to protect Arctic water against pollution.
From oil to tin,
diamonds to gravel, metals to fish, the resources of the sea are enormous. The
reality of their exploitation grows day by day as technology opens new ways to
tap those resources.
In the late 1960s,
oil exploration was moving further and further from land, deeper and deeper into
the bedrock of continental margins. From a modest beginning in 1947 in the Gulf
of Mexico, offshore oil production, still less than a million tons in 1954, had
grown to close to 400 million tons. Oil drilling equipment was already going as
far as 4,000 metres below the ocean surface.
The oceans were
being exploited as never before. Activities unknown barely two decades earlier
were in full swing around the world. Tin had been mined in the shallow waters
off Thailand and Indonesia. South Africa was about to tap the Namibian coast for
diamonds. Potato-shaped nodules, found almost a century earlier and lying on the
seabed some five kilometres below, were attracting increased interest because of
their metal content.
And then there was
fishing. Large fishing vessels were roaming the oceans far from their native
shores, capable of staying away from port for months at a time. Fish stocks
began to show signs of depletion as fleet after fleet swept distant coastlines.
Nations were flooding the richest fishing waters with their fishing fleets
virtually unrestrained: coastal States setting limits and fishing States
contesting them. The so-called "Cod War" between Iceland and the United Kingdom
had brought about the spectacle of British Navy ships dispatched to rescue a
fishing vessel seized by Iceland for violating its fishing rules.
Offshore oil was
the centre of attraction in the North Sea. Britain, Denmark and Germany were in
conflict as to how to carve up the continental shelf, with its rich oil
resources.
It was late 1967
and the tranquillity of the sea was slowly being disrupted by technological
breakthroughs, accelerating and multiplying uses, and a super-Power rivalry that
stood poised to enter man's last preserve - the seabed.
It was a time that
held both dangers and promises, risks and hopes. The dangers were numerous:
nuclear submarines charting deep waters never before explored; designs for
antiballistic missile systems to be placed on the seabed; supertankers ferrying
oil from the Middle East to European and other ports, passing through congested
straits and leaving behind a trail of oil spills; and rising tensions between
nations over conflicting claims to ocean space and resources.
The oceans were
generating a multitude of claims, counterclaims and sovereignty
disputes.
The hope was for
a more stable order, promoting greater use and better management of ocean
resources and generating harmony and goodwill among States that would no longer
have to eye each other suspiciously over conflicting claims.
On 1 November 1967,
Malta's Ambassador to the United Nations, Arvid Pardo, asked the nations of the
world to look around them and open their eyes to a looming conflict that could
devastate the oceans, the lifeline of man's very survival. In a speech to the United Nations General Assembly,
he spoke of the super-Power rivalry that was spreading to the oceans, of the
pollution that was poisoning the seas, of the conflicting legal claims and their
implications for a stable order and of the rich potential that lay on the
seabed.
Pardo ended with a
call for "an effective international regime over the seabed and the ocean floor
beyond a clearly defined national jurisdiction". "It is the only alternative by
which we can hope to avoid the escalating tension that will be inevitable if the
present situation is allowed to continue", he said.
Pardo's urging came
at a time when many recognized the need for updating the freedom-of-the-seas
doctrine to take into account the technological changes that had altered man's
relationship to the oceans. It set in motion a process that spanned 15 years and
saw the creation of the United Nations Seabed Committee, the signing of a treaty
banning nuclear weapons on the seabed, the adoption of the declaration by the
General Assembly that all resources of the seabed beyond the limits of national
jurisdiction are the common heritage of mankind and the convening of the
Stockholm Conference on the Human Environment. What started as an exercise to
regulate the seabed turned into a global diplomatic effort to regulate and write
rules for all ocean areas, all uses of the seas and all of its resources. These
were some of the factors that led to the convening of the Third United Nations
Conference on the Law of the Sea, to write a comprehensive treaty for the
oceans.
The Conference was
convened in New York in 1973. It ended nine years later with the adoption in
1982 of a constitution for the seas - the United Nations Convention on the Law
of the Sea. During those nine years, shuttling back and forth between New York
and Geneva, representatives of more than 160 sovereign States sat down and
discussed the issues, bargained and traded national rights and obligations in
the course of the marathon negotiations that produced the Convention.
Navigational
rights, territorial sea limits, economic jurisdiction, legal status of resources
on the seabed beyond the limits of national jurisdiction, passage of ships
through narrow straits, conservation and management of living marine resources,
protection of the marine environment, a marine research regime and, a more
unique feature, a binding procedure for settlement of disputes between States -
these are among the important features of the treaty. In short, the Convention
is an unprecedented attempt by the international community to regulate all
aspects of the resources of the sea and uses of the ocean, and thus bring a
stable order to mankind's very source of life.
"Possibly the most
significant legal instrument of this century" is how the United Nations
Secretary-General described the treaty after its signing. The Convention was
adopted as a "Package deal", to be accepted as a whole in all its parts without
reservation on any aspect. The signature of the Convention by Governments
carries the undertaking not to take any action that might defeat its objects and
purposes. Ratification of, or accession to, the Convention expresses the consent
of a State to be bound by its provisions. The Convention came into force on 16
November 1994, one year after Guyana became the 60th State to adhere to
it.
Across the globe,
Governments have taken steps to bring their extended areas of adjacent ocean
within their jurisdiction. They are taking steps to exercise their rights over
neighbouring seas, to assess the resources of their waters and on the floor of
the continental shelf. The practice of States has in nearly all respects been
carried out in a manner consistent with the Convention, particularly after its
entry into force and its rapid acceptance by the international community as the
basis for all actions dealing with the oceans and the law of the sea.
The definition of
the territorial sea has brought relief from conflicting claims. Navigation
through the territorial sea and narrow straits is now based on legal principles.
Coastal States are already reaping the benefits of provisions giving them
extensive economic rights over a 200-mile wide zone along their shores. The
right of landlocked countries of access to and from the sea is now stipulated
unequivocally. The right to conduct marine scientific research is now based on
accepted principles and cannot be unreasonably denied. Already established and
functioning are the International Seabed Authority, which organize and control
activities in the deep seabed beyond national jurisdiction with a view to
administering its resources; as well as the International Tribunal for the Law
of the Sea, which has competence to settle ocean related disputes arising from
the application or interpretation of the Convention.
Wider understanding
of the Convention will bring yet wider application. Stability promises order and
harmonious development. However, Part XI, which deals with mining of minerals
lying on the deep ocean floor outside of nationally regulated ocean areas, in
what is commonly known as the international seabed area, had raised many
concerns especially from industrialized States. The Secretary-General, in an
attempt to achieve universal participation in the Convention, initiated a series
of informal consultations among States in order to resolve those areas of
concern. The consultations successfully achieved, in July 1998, an Agreement
Related to the Implementation of Part XI of the Convention. The Agreement, which
is part of the Convention, is now deemed to have paved the way for all States to
become parties to the Convention.
The dispute over
who controls the oceans probably dates back to the days when the Egyptians first
plied the Mediterranean in papyrus rafts. Over the years and centuries,
countries large and small, possessing vast ocean-going fleets or small fishing
flotillas, husbanding rich fishing grounds close to shore or eyeing distant
harvests, have all vied for the right to call long stretches of oceans and seas
their own.
Conflicting claims,
even extravagant ones, over the oceans were not new. In 1494, two years after
Christopher Columbus' first expedition to America, Pope Alexander VI met with
representatives of two of the great maritime Powers of the day - Spain and
Portugal - and neatly divided the Atlantic Ocean between them. A Papal Bull gave
Spain everything west of the line the Pope drew down the Atlantic and Portugal
everything east of it. On that basis, the Pacific and the Gulf of Mexico were
acknowledged as Spain's, while Portugal was given the South Atlantic and the
Indian Ocean.
Before the
Convention on the Law of the Sea could address the exploitation of the riches
underneath the high seas, navigation rights, economic jurisdiction, or any other
pressing matter, it had to face one major and primary issue - the setting of
limits. Everything else would depend on clearly defining the line separating
national and international waters. Though the right of a coastal State to
complete control over a belt of water along its shoreline - the territorial sea
- had long been recognized in international law, up until the Third United
Nations Conference on the Law of the Sea, States could not see eye to eye on how
narrow or wide this belt should be.
At the start of
the Conference, the States that maintained the traditional claims to a
three-mile territorial sea had numbered a mere 25. Sixty-six countries had by
then claimed a 12-mile territorial sea limit. Fifteen others claimed between 4
and 10 miles, and one remaining major group of eight States claimed 200 nautical
miles.
Traditionally,
smaller States and those not possessing large, ocean-going navies or merchant
fleets favoured a wide territorial sea in order to protect their coastal waters
from infringements by those States that did. Naval and maritime Powers, on the
other hand, sought to limit the territorial sea as much as possible, in order to
protect their fleets' freedom of movement.
As the work of the
Conference progressed, the move towards a 12-mile territorial sea gained wider
and eventually universal acceptance. Within this limit, States are in principle
free to enforce any law, regulate any use and exploit any resource.
The Convention
retains for naval and merchant ships the right of "innocent passage" through the
territorial seas of a coastal State. This means, for example, that a Japanese
ship, picking up oil from Gulf States, would not have to make a 3,000-mile
detour in order to avoid the territorial sea of Indonesia, provided passage is
not detrimental to Indonesia and does not threaten its security or violate its
laws.
In addition to
their right to enforce any law within their territorial seas, coastal States are
also empowered to implement certain rights in an area beyond the territorial
sea, extending for 24 nautical miles from their shores, for the purpose of
preventing certain violations and enforcing police powers. This area, known as
the "contiguous zone", may be used by a coast guard or its naval equivalent to
pursue and, if necessary, arrest and detain suspected drug smugglers, illegal
immigrants and customs or tax evaders violating the laws of the coastal State
within its territory or the territorial sea.
The Convention also
contains a new feature in international law, which is the regime for
archipelagic States (States such as the Philippines and Indonesia, which are
made up of a group of closely spaced islands). For those States, the territorial
sea is a 12-mile zone extending from a line drawn joining the outermost points
of the outermost islands of the group that are in close proximity to each other.
The waters between the islands are declared archipelagic waters, where ships of
all States enjoy the right of innocent passage. In those waters, States may
establish sea lanes and air routes where all ships and aircraft enjoy the right
of expeditious and unobstructed passage.
Perhaps no other
issue was considered as vital or presented the negotiators of the Convention on
the Law of the Sea with as much difficulty as that of navigational
rights.
Countries have
generally claimed some part of the seas beyond their shores as part of their
territory, as a zone of protection to be patrolled against smugglers, warships
and other intruders. At its origin, the basis of the claim of coastal States to
a belt of the sea was the principle of protection; during the seventeenth and
eighteenth centuries another principle gradually evolved: that the extent of
this belt should be measured by the power of the littoral sovereign to control
the area.
In the eighteenth
century, the so-called "cannon-shot" rule gained wide acceptance in Europe.
Coastal States were to exercise dominion over their territorial seas as far as
projectiles could be fired from a cannon based on the shore. According to some
scholars, in the eighteenth century the range of land-based cannons was
approximately one marine league, or three nautical miles. It is believed that on
the basis of this formula developed the traditional three-mile territorial sea
limit.
By the late 1960s,
a trend to a 12-mile territorial sea had gradually emerged throughout the world,
with a great majority of nations claiming sovereignty out to that seaward limit.
However, the major maritime and naval Powers clung to a three-mile limit on
territorial seas, primarily because a 12-mile limit would effectively close off
and place under national sovereignty more than 100 straits used for
international navigation.
A 12-mile
territorial sea would place under national jurisdiction of riparian States
strategic passages such as the Strait of Gibraltar (8 miles wide and the only
open access to the Mediterranean), the Strait of Malacca (20 miles wide and the
main sea route between the Pacific and Indian Oceans), the Strait of Hormuz (21
miles wide and the only passage to the oil-producing areas of Gulf States) and
Bab el Mandeb (14 miles wide, connecting the Indian Ocean with the Red
Sea).
At the Third United
Nations Conference on the Law of the Sea, the issue of passage through straits
placed the major naval Powers on one side and coastal States controlling narrow
straits on the other. The United States and the Soviet Union insisted on free
passage through straits, in effect giving straits the same legal status as the
international waters of the high seas. The coastal States, concerned that
passage of foreign warships so close to their shores might pose a threat to
their national security and possibly involve them in conflicts among outside
Powers, rejected this demand.
Instead, coastal
States insisted on the designation of straits as territorial seas and were
willing to grant to foreign warships only the right of "innocent passage", a
term that was generally recognized to mean passage "not prejudicial to the
peace, good order or security of the coastal State". The major naval Powers
rejected this concept, since, under international law, a submarine exercising
its right of innocent passage, for example, would have to surface and show its
flag - an unacceptable security risk in the eyes of naval Powers. Also, innocent
passage does not guarantee the aircraft of foreign States the right of
overflight over waters where only such passage is guaranteed.
In fact, the issue
of passage through straits was one of the early driving forces behind the Third
United Nations Conference on the Law of the Sea, when, in early 1967, the United
States and the Soviet Union proposed to other Member countries of the United
Nations that an international conference be held to deal specifically with the
entangled issues of straits, overflight, the width of the territorial sea and
fisheries.
The compromise that
emerged in the Convention is a new concept that combines the legally accepted
provisions of innocent passage through territorial waters and freedom of
navigation on the high seas. The new concept, "transit passage", required
concessions from both sides.
The regime of
transit passage retains the international status of the straits and gives the
naval Powers the right to unimpeded navigation and overflight that they had
insisted on. Ships and vessels in transit passage, however, must observe
international regulations on navigational safety, civilian air-traffic control
and prohibition of vessel-source pollution and the conditions that ships and
aircraft proceed without delay and without stopping except in distress
situations and that they refrain from any threat or use of force against the
coastal State. In all matters other than such transient navigation, straits are
to be considered part of the territorial sea of the coastal State.
The exclusive
economic zone (EEZ) is one of the most revolutionary features of the Convention,
and one which already has had a profound impact on the management and
conservation of the resources of the oceans. Simply put, it recognizes the right
of coastal States to jurisdiction over the resources of some 38 million square
nautical miles of ocean space. To the coastal State falls the right to exploit,
develop, manage and conserve all resources - fish or oil, gas or gravel, nodules
or sulphur - to be found in the waters, on the ocean floor and in the subsoil of
an area extending 200 miles from its shore.
The EEZs are a
generous endowment indeed. About 87 per cent of all known and estimated
hydrocarbon reserves under the sea fall under some national jurisdiction as a
result. So too will almost all known and potential offshore mineral resources,
excluding the mineral resources (mainly manganese nodules and metallic crusts)
of the deep ocean floor beyond national limits. And whatever the value of the
nodules, it is the other non-living resources, such as hydrocarbons, that
represent the presently attainable and readily exploitable wealth.
The most lucrative
fishing grounds too are predominantly the coastal waters. This is because the
richest phytoplankton pastures lie within 200 miles of the continental masses.
Phytoplankton, the basic food of fish, is brought up from the deep by currents
and ocean streams at their strongest near land, and by the upwelling of cold
waters where there are strong offshore winds.
The desire of
coastal States to control the fish harvest in adjacent waters was a major
driving force behind the creation of the EEZs. Fishing, the prototypical cottage
industry before the Second World War, had grown tremendously by the 1950s and
1960s. Fifteen million tons in 1938, the world fish catch stood at 86 million
tons in 1989. No longer the domain of a lone fisherman plying the sea in a
wooden dhow, fishing, to be competitive in world markets, now requires armadas
of factory-fishing vessels, able to stay months at sea far from their native
shores, and carrying sophisticated equipment for tracking their prey.
The special
interest of coastal States in the conservation and management of fisheries in
adjacent waters was first recognized in the 1958 Convention on Fishing and
Conservation of the Living Resources of the High Seas. That Convention allowed
coastal States to take "unilateral measures" of conservation on what was then
the high seas adjacent to their territorial waters. It required that if six
months of prior negotiations with foreign fishing nations had failed to find a
formula for sharing, the coastal State could impose terms. But still the rules
were disorderly, procedures undefined, and rights and obligations a web of
confusion. On the whole, these rules were never implemented.
The claim for
200-mile offshore sovereignty made by Peru, Chile and Ecuador in the late 1940s
and early 1950s was sparked by their desire to protect from foreign fishermen
the rich waters of the Humboldt Current (more or less coinciding with the
200-mile offshore belt. This limit was incorporated in the Santiago Declaration
of 1952 and reaffirmed by other Latin American States joining the three in the
Montevideo and Lima Declarations of 1970. The idea of sovereignty over
coastal-area resources continued to gain ground.
As long-utilized
fishing grounds began to show signs of depletion, as long-distance ships came to
fish waters local fishermen claimed by tradition, as competition increased, so
too did conflict. Between 1974 and 1979 alone there were some 20 disputes over
cod, anchovies or tuna and other species between, for example, the United
Kingdom and Iceland, Morocco and Spain, and the United States and
Peru.
And then there was
the offshore oil.
The Third United
Nations Conference on the Law of the Sea was launched shortly after the October
1973 Arab-Israeli war. The subsequent oil embargo and skyrocketing of prices
only helped to heighten concern over control of offshore oil reserves. Already,
significant amounts of oil were coming from offshore facilities: 376 million of
the 483 million tons produced in the Middle East in 1973; 431 million barrels a
day in Nigeria, 141 million barrels in Malaysia, 246 million barrels in
Indonesia. And all of this with barely 2 per cent of the continental shelf
explored. Clearly, there was hope all around for a fortunate discovery and a
potential to be protected.
Today, the benefits
brought by the EEZs are more clearly evident. Already 86 coastal States have
economic jurisdiction up to the 200-mile limit. As a result, almost 99 per cent
of the world's fisheries now fall under some nation's jurisdiction. Also, a
large percentage of world oil and gas production is offshore. Many other marine
resources also fall within coastal-State control. This provides a long-needed
opportunity for rational, well-managed exploitation under an assured
authority.
Figures on known
offshore oil reserves now range from 240 to 300 billion tons. Production from
these reserves amounted to a little more than 25 per cent of total world
production in 1996. Experts estimate that of the 150 countries with offshore
jurisdiction, over 100, many of them developing countries, have medium to
excellent prospects of finding and developing new oil and natural gas
fields.
It is evident that
it is archipelagic States and large nations endowed with long coastlines that
naturally acquire the greatest areas under the EEZ regime. Among the major
beneficiaries of the EEZ regime are the United States, France, Indonesia, New
Zealand, Australia and the Russian Federation.
But with exclusive
rights come responsibilities and obligations For example, the Convention
encourages optimum use of fish stocks without risking depletion through
overfishing. Each coastal State is to determine the total allowable catch for
each fish species within its economic zone and is also to estimate its harvest
capacity and what it can and cannot itself catch. Coastal States are obliged to
give access to others, particularly neighbouring States and land-locked
countries, to the surplus of the allowable catch. Such access must be done in
accordance with the conservation measures established in the laws and
regulations of the coastal State.
Coastal States have
certain other obligations, including the adoption of measures to prevent and
limit pollution and to facilitate marine scientific research in their
EEZs.
In ancient times,
navigation and fishing were the primary uses of the seas. As man progressed,
pulled by technology in some instances and pushing that technology at other
times in order to satisfy his needs, a rich bounty of other resources and uses
were found underneath the waves on and under the ocean floor - minerals, natural
gas, oil, sand and gravel, diamonds and gold. What should be the extent of a
coastal State's jurisdiction over these resources? Where and how should the
lines demarcating their continental shelves be drawn? How should these resources
be exploited? These were among the important questions facing lawyers,
scientists and diplomats as they assembled in New York in 1973 for the Third
Conference.
Given the real and
potential continental shelf riches, there naturally was a scramble by nations to
assert shelf rights. Two difficulties quickly arose. States with a naturally
wide shelf had a basis for their claims, but the geologically disadvantaged
might have almost no shelf at all. The latter were not ready to accept
geological discrimination. Also, there was no agreed method on how to define the
shelf's outer limits, and there was a danger of the claims to continental
shelves being overextended - so much so as to eventually divide up the entire
ocean floor among such shelves.
Although many
States had started claiming wide continental-shelf jurisdiction since the Truman
Proclamation of 1945, these States did not use the term "continental shelf" in
the same sense. In fact, the expression became no more than a convenient formula
covering a diversity of titles or claims to the seabed and subsoil adjacent to
the territorial seas of States. In the mid-1950s the International Law
Commission made a number of attempts to define the "continental shelf" and
coastal State jurisdiction over its resources.
In 1958, the first
United Nations Conference on the Law of the Sea accepted a definition adopted by
the International Law Commission, which defined the continental shelf to include
"the seabed and subsoil of the submarine areas adjacent to the coast but outside
the area of the territorial sea, to a depth of 200 metres, or, beyond that
limit, to where the depth of the superjacent waters admits of the exploitation
of the natural resources of the said areas".
Already, as the
Third United Nations Conference on the Law of the Sea got under way, there was a
strong consensus in favour of extending coastal-State control over ocean
resources out to 200 miles from shore so that the outer limit coincides with
that of the EEZ. But the Conference had to tackle the demand by States with a
geographical shelf extending beyond 200 miles for wider economic
jurisdiction.
The Convention
resolves conflicting claims, interpretations and measuring techniques by setting
the 200-mile EEZ limit as the boundary of the continental shelf for seabed and
subsoil exploitation, satisfying the geologically disadvantaged. It satisfied
those nations with a broader shelf - about 30 States, including Argentina,
Australia, Canada, India, Madagascar, Mexico, Sri Lanka and France with respect
to its overseas possessions - by giving them the possibility of establishing a
boundary going out to 350 miles from their shores or further, depending on
certain geological criteria.
Thus, the
continental shelf of a coastal State comprises the seabed and its subsoil that
extend beyond the limits of its territorial sea throughout the natural
prolongation of its land territory to the outer edge of the continental margin,
or to a distance of 200 miles from the baselines from which the territorial sea
is measured, where the outer edge of the continental margin does not extend up
to that distance.
In cases where the
continental margin extends further than 200 miles, nations may claim
jurisdiction up to 350 miles from the baseline or 100 miles from the 2,500 metre
depth, depending on certain criteria such as the thickness of sedimentary
deposits. These rights would not affect the legal status of the waters or that
of the airspace above the continental shelf.
To counterbalance
the continental shelf extensions, coastal States must also contribute to a
system of sharing the revenue derived from the exploitation of mineral resources
beyond 200 miles. These payments or contributions - from which developing
countries that are net importers of the mineral in question are exempt - are to
be equitably distributed among States parties to the Convention through the
International Seabed Authority.
To control the
claims extending beyond 200 miles, the Commission on the Limits of the
Continental Shelf was established to consider the data submitted by the coastal
States and make recommendations
Deep seabed mining
is an enormous challenge that has been compared to standing atop a New York City
skyscraper on a windy day, trying to suck up marbles off the street below with a
vacuum cleaner attached to a long hose.
Mining will take
place at a depth of more than fifteen thousand feet of open ocean, thousands of
miles from land. Mining ships are expected to remain on station five years at a
time, working without a stop, and to transfer the seabed minerals they bring up
to auxiliary vessels.
At the centre of
the controversy were potato-sized manganese nodules found on the deep ocean
floor and containing a number of important metals and minerals.
On 13 March 1874,
somewhere between Hawaii and Tahiti, the crew of the British research vessel HMS
Challenger, on the first great oceanographic expedition of modern times,
hauled in from a depth of 15,600 feet a trawl containing the first known
deposits of manganese nodules. Analysis of the samples in 1891 showed the
Pacific Ocean nodules to contain important metals, particularly nickel, copper
and cobalt. Subsequent sampling demonstrated that nodules were abundant
throughout the deep regions of the Pacific.
In the 1950s, the
potential of these deposits as sources of nickel, copper and cobalt ore was
finally appreciated. Between 1958 and 1968, numerous companies began serious
prospecting of the nodule fields to estimate their economic potential. By 1974,
100 years after the first samples were taken, it was well established that a
broad belt of sea floor between Mexico and Hawaii and a few degrees north of the
equator (the so-called Clarion Clipperton zone) was literally paved with nodules
over an area of more than 1.35 million square miles.
In 1970 the United
Nations General Assembly declared the resources of the seabed beyond the limits
of national jurisdiction to be "the common heritage of mankind". For 12 years
from then, up to 1982 when the Convention on the Law of the Sea was adopted,
nothing tested so sorely the ability of diplomats from various corners of the
world to reach common ground than the goal of conserving that common heritage
and profiting from it at the same time.
Having established
that the resources of the seabed beyond the limits of national jurisdiction are
the common heritage of mankind, the framers of the treaty faced the question of
who should mine the minerals and under what rules. The developed countries took
the view that the resources should be commercially exploited by mining companies
in consortia and that an international authority should grant licenses to those
companies. The developing countries objected to this view on the grounds that
the resource was unique and belonged to the whole of mankind, and that the most
appropriate way to benefit from it was for the international community to
establish a public enterprise to mine the international seabed area.
Thus, the gamut of
proposals ran from a "weak" international authority, noting claims and
collecting fees, to a "strong" one with exclusive rights to mine the common
heritage area, involving States or private groups only as it saw fit. The
solution found was to make possible both the public and private enterprises on
one hand and the collective mining on the other - the so-called "parallel
system".
This complex
system, though simplified to a great degree by the Agreement on Part XI, is
administered by the International Seabed Authority, headquartered in Jamaica.
The Authority is divided into three principal organs, an Assembly, made up of
all members of the Authority with power to set general policy, a council, with
powers to make executive decisions, made up of 36 members elected from among the
members of the Authority, and a secretariat headed by a
secretary-general.
Unfortunately, the
road to the market is long, hard and expensive. The nodules lie two to three
miles - about 5 kilometres - down, in pitch-black water where pressures exceed
7,000 pounds per square inch and temperatures are near freezing. Many of the
ocean floors are filled with treacherous hills and valleys. Appropriate deep-sea
mining technology must be developed to accommodate this environment.
Many mining systems
have been tried, and some have appeared more promising than others. For a while,
hydraulic suction dredge airlifts and a continuous-line bucket system were
thought to be a promising answer to the mining dilemma. Another system, the
so-called shuttle system, involves sending down a remotely operated, Jules
Verne-like vehicle, with television "eyes" and powerful lights, to crawl over
the ocean floor, gobble up and crush nodules and resurface with its
catch.
Today, the
continuous-line bucket system, where empty buckets are lowered to the bottom of
the ocean and later raised, partially filled with nodules, has been discarded
because of low recovery rates. The shuttle system has been shelved because its
operational and investment costs far exceeded the costs of more conventional
approaches. However, this system is thought to be the technology of the future.
Thus, the current focus is on the hydraulic suction and dredge method. But there
are a number of technological problems to be worked out before it will be ready
for commercial application.
Keeping a steady
ship position, since a vessel cannot anchor 5 kilometres above the sea floor and
making sure that the pipe does not snap or that the recovery vehicle is not lost
or permanently stuck on the ocean floor are among the many headaches involved in
developing the necessary technology for commercial exploitation.
Extracting metals
from the nodules is another task altogether. All agree that this phase will be
the most expensive, even if only at the initial investment stage.
Technologically, however, processing does not pose as much of a challenge as the
recovery of manganese nodules. That is because it is thought that the two
processing techniques applied to land-derived ores - heat and chemical
separation of the metals - will apply just as well to the seabed
resources.
Because of their
porous nature, recovered nodules retain a great deal of water. Heat processing
would therefore require a great amount of energy in order to dry the nodules
prior to extracting the metals. It is for that reason that some believe that
chemical techniques will prove to be the most efficient and least
costly.
Moreover,
processing would involve such waste that special barren sites would have to be
found to carry out operations. Yet, others believe that the economic viability
of seabed mining would be greatly enhanced if a method is devised to process the
nodules at sea, saving enormous energy costs involved in the transfer of nodules
to land-based processing plants.
Prospects for
seabed mining depend to a large degree on the market conditions for the metals
to be produced from seabed nodules. While one of the driving forces behind the
Convention on the Law of the Sea was the prevailing belief in the 1970s that
commercial seabed mining was imminent, today the prospects for the inherently
expensive process of mining the seabed have greatly receded with changing
economic and other conditions since the early 1980s. Indeed, some experts
predict that commercial mining operations are not likely to begin until well
after the year 2000.
A number of
important political and economic changes have taken place in the 10 years that
have elapsed since the adoption of the Convention, some directly affecting the
deep seabed mining provisions of the Convention, others affecting international
relations in general. In the meantime, the prevailing economic prognosis on
which the seabed mining regime was built has not been realized.
The Convention on
the Law of the Sea holds out the promise of an orderly and equitable regime or
system to govern all uses of the sea. But it is a club that one must join in
order to fully share in the benefits. The Convention - like other treaties -
creates rights only for those who become parties to it and thereby accept its
obligations, except for the provisions which apply to all States because they
either merely confirm existing customary law or are becoming customary
law.
However, as its
preamble states, the Convention starts from the premise that the problems of
ocean space are closely interrelated and need to be considered as a whole. The
desire for a comprehensive Convention arose from the recognition that
traditional sea law was disintegrating and that the international community
could not be expected to behave in a consistent manner without dialogue,
negotiations and agreement.
In this context, it
must be underscored that the Convention was adopted as a "package deal", with
one aim above all, namely universal participation in the Convention. No State
can claim that it has achieved quite all it wanted. Yet every State benefits
from the provisions of the Convention and from the certainty that it has
established in international law in relation to the law of the sea. It has
defined rights while underscoring the obligations that must be performed in
order to benefit from those rights. Any trend towards exercising those rights
without complying with the corresponding obligations, or towards exercising
rights inconsistent with the Convention, must be viewed as damaging to the
universal regime that the Convention establishes.
The adoption of the
Agreement on Part XI has eliminated this threat. With nearly all States now
adhering, even on a provisional basis pending ratification or accession, to the
Convention, the threat to the Convention has been eliminated. The Agreement has
particularly removed those obstacles which had prevented the industrialized
countries from adhering to the Convention. Those same countries have either
ratified the Convention or submitted it for their internal legislative
procedures. Even more important, is their active participation in the
institutions created by the Convention and their strong support for the regime
contained in it.
The Preparatory
Commission for the International Seabed Authority and for the International
Tribunal for the Law of the Sea was established, prior to the entry into force
of the Convention, to prepare for the setting up of both institutions. The
Preparatory Commission proceeded with the implementation of an interim regime
adopted by the Third United Nations Conference on the Law of the Sea, designed
to protect those States or entities that have already made a large investment in
seabed mining. This so-called Pioneer Investor Protection regime allows a State,
or consortia of mining companies to be sponsored by a State, to be registered as
a Pioneer Investor. Registration reserves for the Pioneer Investor a specific
mine site in which the registered Investor is allowed to explore for, but not
exploit, manganese nodules. Registered Investors are also obligated to explore a
mine site reserved for the Enterprise and undertake other obligations, including
the provision of training to individuals to be designated by the Preparatory
Commission.
The Preparatory
Commission had registered seven pioneer investors: China, France, India, Japan,
the Republic of Korea, and the Russian Federation, as well as a consortium known
as the Interoceanmetal Joint Organization (IMO). With the Convention in force
and the International Seabed Authority being functioning, those pioneer
investors will become contractors along the terms contained in the Convention
and the Agreement, as well as regulations established by the International
Seabed Authority.
Thor Heyerdahl,
sailing the Atlantic in his papyrus raft, Ra, found globs of oil, tar and
plastics stretching from the coast of Africa to South America. Parts of the
Baltic, Mediterranean and Black Sea are already so polluted that marine life is
severely threatened. And waste dumped in the Pacific and Atlantic Oceans has
washed up on the shores of Antarctica.
In the United
States, long stretches of beaches are often closed because of medical and other
waste washing up on shore. And every time an oil tanker is involved in an
accident, the world's pulse quickens a bit in fear of a major catastrophe, In
fact, every time a tanker cleans its tanks at sea, every time a factory channels
toxic residues to coastal waters or a city conveniently releases raw sewage into
the sea, every time a service station changes the oil of an automobile and pours
the waste oil into the sewers, the oceans become a little more polluted.
Eventually, scientists fear, the oceans' regenerative capacity will be
overwhelmed by the amount of pollution it is subjected to by man. Signs of such
catastrophe are clearly observed in many seas—particularly along the heavily
populated coasts and enclosed or semi-enclosed seas.
There are six main
sources of ocean pollution addressed in the Convention: land-based and coastal
activities; continental-shelf drilling; potential seabed mining; ocean dumping;
vessel-source pollution; and pollution from or through the
atmosphere.
The Convention lays
down, first of all, the fundamental obligation of all States to protect and
preserve the marine environment. It further urges all States to cooperate on a
global and regional basis in formulating rules and standards and otherwise take
measures for the same purpose.
Coastal States are
empowered to enforce their national standards and anti-pollution measures within
their territorial sea. Every coastal State is granted jurisdiction for the
protection and preservation of the marine environment of its EEZ. Such
jurisdiction allows coastal States to control, prevent and reduce marine
pollution from dumping, land-based sources or seabed activities subject to
national jurisdiction, or from or through the atmosphere. With regard to marine
pollution from foreign vessels, coastal States can exercise jurisdiction only
for the enforcement of laws and regulations adopted in accordance with the
Convention or for "generally accepted international rules and standards". Such
rules and standards, many of which are already in place, are adopted through the
competent international organization, namely the International Maritime
Organization (IMO).
On the other hand,
it is the duty of the "flag State", the State where a ship is registered and
whose flag it flies, to enforce the rules adopted for the control of marine
pollution from vessels, irrespective of where a violation occurs. This serves as
a safeguard for the enforcement of international rules, particularly in waters
beyond the national jurisdiction of the coastal State, i.e., on the high
seas.
Furthermore, the
Convention gives enforcement powers to the "port State", or the State where a
ship is destined. In doing so it has incorporated a method developed in other
Conventions for the enforcement of treaty obligations dealing with shipping
standards, marine safety and pollution prevention. The port State can enforce
any type of international rule or national regulations adopted in accordance
with the Convention or applicable international rules as a condition for the
entry of foreign vessels into their ports or internal waters or for a call at
their offshore terminals. This has already become a significant factor in the
strengthening of international standards.
Finally, as far as
the international seabed area is concerned, the International Seabed Authority,
through its Council, is given broad discretionary powers to assess the potential
environmental impact of a given deep seabed mining operation, recommend changes,
formulate rules and regulations, establish a monitoring programme and recommend
issuance of emergency orders by the Council to prevent serious environmental
damage. States are to be held liable for any damage caused by either their own
enterprise or contractors under their jurisdiction.
With the passage of
time, United Nations involvement with the law of the sea has expanded as
awareness increases that not only ocean problems but global problems as a whole
are interrelated. Already, the 1992 United Nations Conference on Environment and
Development (UNCED) held in Rio de Janeiro, Brazil in 1992, placed a great deal
of emphasis on the protection and preservation of the oceans’ environment in
harmony with the rational use and development of their living resources, thus
establishing the concept of "sustainable development" embodied in Agenda 21, the
programme of action adopted at the Conference.
The necessity to
combat the degradation and depletion of fish stocks, both in the zones under
national jurisdiction and in the high seas and its causes, such as overfishing
and excess fishing capacity, by-catch and discards, has been one of the
recurrent topics in the process of implementation of the programme of action
adopted in Rio de Janeiro.
In this respect,
among the most important outputs of the Conference was the convening of an
intergovernmental conference under United Nations auspices with a view to
resolving the old conflict between coastal States and distant-water fishing
States over straddling and highly migratory fish stocks in the areas adjacent to
the 200 nautical-mile exclusive economic zones. This Conference adopted the 1995
Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks which
introduces a number of innovative measures, particularily in the area of
environmental and resource protection obliging States to adopt a precautionary
approach to fisheries exploitation and giving expanded powers to port States to
enforce proper management of fisheries resources.
With the extension
of the territorial sea to 12 miles and the establishment of the new 200-mile
EEZ, the area open to unrestricted scientific research was circumscribed. The
Convention thus had to balance the concerns of major research States, mostly
developed countries, which saw any coastal-state limitation on research as a
restriction of a traditional freedom that would not only adversely affect the
advancement of science but also deny its potential benefits to all nations in
fields such as weather forecasting and the study of effects of ocean currents
and the natural forces at work on the ocean floor.
On the other side,
many developing countries had become extremely wary of the possibility of
scientific expeditions being used as a cover for intelligence gathering or
economic gain, particularly in relatively uncharted areas, scientific research
was yielding knowledge of potential economic significance.
The developing
countries demanded "prior consent" of a coastal State to all scientific research
on the continental shelf and within the EEZ. The developed countries offered to
give coastal States "prior notification" of research projects to be carried out
on the continental shelf and within the EEZ, and to share any data pertinent to
offshore resources.
The final
provisions of the Convention represent a concession on the part of developed
States. Coastal State jurisdiction within its territorial sea remains absolute.
Within the EEZ and in cases involving research on the continental shelf, the
coastal State must give its prior consent, However, such consent for research
for peaceful purposes is to be granted "in normal circumstances" and "shall not
be delayed or denied unreasonably", except under certain specific circumstances
identified in the Convention. In case the consent of the coastal State is
requested and such State does not reply within six months of the date of the
request, the coastal State is deemed to have implicitly given its consent. These
last provisions were intended to circumvent the long bureaucratic delays and
frequent burdensome differences in coastal State regulations.
Provisions for the
settlement of disputes arising out of an international treaty are often
contained in a separate optional protocol. Parties to the treaty could choose to
be bound by those provisions or not by accepting or not accepting the Protocol.
The Convention on the Law of the Sea is unique in that the mechanism for the
settlement of disputes is incorporated into the document, making it obligatory
for parties to the Convention to go through the settlement procedure in case of
a dispute with another party.
During the drafting
of the Convention, some countries were opposed in principle to binding
settlement to be decided by third party judges or arbitrators, insisting that
issues could best be resolved by direct negotiations between States without
requiring them to bring in outsiders. Others, pointing to a history of failed
negotiations and long-standing disputes often leading to a use of force, argued
that the only sure chance for peaceful settlement lay in the willingness of
States to bind themselves in advance to accept the decisions of judicial
bodies.
What emerged from
the negotiations was a combination of the two approaches, regarded by many as a
landmark in international law.
If direct talks
between the parties fail, the Convention gives them a choice among four
procedures - some new, some old: submission of the dispute to the International
Tribunal for the Law of the Sea, adjudication by the International Court of
Justice, submission to binding international arbitration procedures or
submission to special arbitration tribunals with expertise in specific types of
disputes. All of these procedures involve binding third-party settlement, in
which an agent other than the parties directly involved hands down a decision
that the parties are committed in advance to respect.
The only exception
to these provisions is made for sensitive cases involving national sovereignty.
In such circumstances, the parties are obliged to submit their dispute to a
conciliation commission, but they will not be bound by any decision or finding
of the commission. The moral pressure resulting was argued as being persuasive
and adequate to ensure compliance with the findings. The Convention also
contains so-called "optional exceptions", which can be specified at the time a
country signs, ratifies or accedes to the Convention or at any later time. A
State may declare that it chooses not to be bound by one or more of the
mandatory procedures if they involve existing maritime boundary disputes,
military activities or issues under discussion in the United Nations Security
Council.
Disputes over
seabed activities will be arbitrated by an 11-member Seabed Disputes Chamber,
within the International Tribunal for the Law of the Sea. The Chamber has
compulsory jurisdiction over all such conflicts, whether involving States, the
International Seabed Authority or companies or individuals having seabed mining
contracts.
Throughout the
years, beginning with the work of the Seabed Committee in 1968 and later during
the nine-year duration of the Third United Nations Conference on the Law of the
Sea, the United Nations has been actively engaged in encouraging and guiding the
development and eventual adoption of the Law of the Sea Convention. Today, it
continues to be engaged in this process, by monitoring developments as they
relate to the Convention and providing assistance to States, when called for, in
either the ratification or the implementation process.
The goal of the
Organization is to help States to better understand and implement the Convention
in order to utilize their marine resources in an environment relatively free of
conflict and conducive to development, safeguarding the rule of law in the
oceans.
In this context,
the Division for Ocean Affairs and the Law of the Sea (DOALOS) of the United
Nations Office of Legal Affairs helps to coordinate the Organization's
activities and programmes in the area of marine affairs. It is active in
assisting and advising States in the integration of the marine sector in their
development planning. It also responds to requests for information and advice on
the legal, economic and political aspects of the Convention and its implications
for States. Such information is used by States during the ratification process,
in the management of the marine sector of their economies and in the development
of a national sea-use policy.
The United Nations
also gives assistance to the two newly created institutions - the International
Seabed Authority and the International Tribunal for the Law of the
Sea.
The entry into
force of the Convention, together with extended jurisdiction, new fields of
activity and increased uses of the oceans, will continue to confront all States
with important challenges. These challenges will include how to apply the new
provisions in accordance with the letter and spirit of the Convention, how to
harmonize national legislation with it and how to fulfil the obligations
incumbent upon States under the Convention.
Another major
challenge will be to provide the necessary assistance, particularly to
developing States, in order to allow them to benefit from the rights they have
acquired under the new regime. For example, a great many of the States that have
established their EEZs are not at present in a position to exercise all their
rights and perform duties under the Convention. The delimitation of EEZ, the
surveying of its area, its monitoring, the utilization of its resources and,
generally speaking, its management and development are long-term endeavours
beyond the present and possibly near-term capabilities of most developing
countries.
The United Nations
will continue to play a major role in the monitoring of, collection of
information on and reporting on State practice in the implementation of the new
legal regime. It will also have a significant role to play in reporting on
activities of States and relevant international organizations in marine affairs
and on major trends and developments. This information will be of great
assistance to States in the acceptance and ratification of the Convention, as
well as its early entry into force and implementation.
A number of new
duties falls upon the Secretary-General of the United Nations. These include the
depositing of charts and coordinates showing the maritime limits of coastal
States and servicing of the Commission on the Limits of the Continental Shelf
The Secretary-General is also called upon to convene meetings of States Parties
to elect the members of the International Tribunal for the Law of the Sea and to
adopt its budget. Meetings of States Parties may also be called for a Review
Conference dealing with the provisions on deep seabed mining or for amending the
Convention.
The United Nations
will continue to strengthen the cooperation that has developed over the last two
decades among the organizations in the United Nations system involved in marine
affairs. Such close cooperation would be of great benefit to States, since it
would avoid duplication and overlapping of activities. It would also help to
coordinate multidisciplinary activities related to the management of marine
affairs.
With the passage of
time, United Nations involvement with the law of the sea is expected to expand
as awareness increases that not only ocean problems but also global problems as
a whole are interrelated.
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