BINGHAM UNIVERSITY, KARU

NASARAWA STATE

NAME: SAIDU TANIMU MOHAMED

FACULTY: HUMANITIES, SOCIAL AND

MANAGEENT SCIENCES

DEPARTMENT: POLITICAL SCIENCE

LEVEL: 400

COURSE LECTURER(S): Dr. Philip Ajeh and Mr. Tobi

COURSE: INTERNATIONAL LAW (POL 412)

EASSY QUESTION: BY THE EARLY 21ST CENTURY

UNITED NATIONS CONVENTION ON THE LAWS OF

THE SEA (UNCLOS) III HAS BEEN RATIFIED BY

MORE THAN 150 COUNTRIES, DISCUSS?

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INTRODUCTION

The earth at large is 70% made up of water hence the need for a treaty/convention such

as the UNICLOS is necessary as it gives provision for what water territory a country can claim

as its own and also indicates the area of water that belongs to no one. The United Nations

Convention on the Law of the Sea on the 10 th of December 1982 (hereafter called “UNCLOS”)

sets out a comprehensive legal framework and promotes the use rule of law for all activities in

the oceans and seas and has often been referred to as “a constitution for the oceans”. Therefore,

other international ocean-related instruments as well as State party national laws, regulations,

policies and institutional operations should be compliant with the provisions of UNCLOS and

facilitative of its general aims and objectives. In many ways UNCLOS was ahead of its time as,

at the time of its adoption, it established legal frameworks for the operation of the burgeoning

areas of ocean affairs and law of the sea, namely, environmental conservation and protection of

marine resources, development and protection of the resources of the Area and sustainable

development of developing and least developed states. Therefore, at the advent of the 2030

Agenda for Sustainable Development, a further agenda continuing and building on the work of

the Millennium Development Goals and setting out 17 Sustainable Development Goals (SDGs)

with 169 related targets, there was already in place a legal framework for the operation of

Sustainable Development Goal (SDG) 14 “to conserve and sustainably use the oceans, seas and

marine resources for sustainable development. The Evidence-based and Policy-coherent Oceans

Economy and Trade Strategy (“OETS”) project aims to support coastal developing countries,

including small-island developing states, in deriving economic benefit from the sustainable use

of marine resources within the framework of UNCLOS through the sustainable trade of products

and services in the following selected ocean-based economic sectors which include: Sustainable

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marine fisheries, Sustainable marine aquaculture, Seafood processing, and Coastal and marine

environmental services.

In this regard, this essay aims to provide an overview of the national legal and

institutional frameworks applicable to the sectors, as well as a description of the relevant

provisions in UNCLOS and other marine-related international instruments. The essay basically

talks on the how the UN has shared the water bodies in the world. The territories of the world

goes beyond land. It includes water and air space too. Subsequent sections will also identify

cross-cutting areas among the legal, institutional and policy frameworks affecting the sectors.

The United Nations Convention on the Law of the Sea (henceforth UNCLOS) gave states

sovereignty over the high seas which had never existed previously and although this seemed like

an exciting new era for many coastal and maritime states UNCLOS has failed in its capacity to

reduce the likelihood of conflict in the future. This essay will argue that UNCLOS fails to

strengthen global governance of the sea due to many factors. The aforementioned acquisition of

sovereignty over the high seas has led to increased resource competition between states and the

issue of which state has the strongest claim over areas of the high seas, particularly the South

China Sea, have led to increased tensions between regional actors and can only mean one thing,

that conflict will occur and UNCLOS has failed to prevent this. The impetus to expand Exclusive

Economic Zones (henceforth EEZs) has also escalated tensions and led to an increased

likelihood of conflict, and this will be examined in regards to UNCLOS ‘Increasing use of the

oceans resulted from the general phenomenon of ever-increasing populations seeking ever higher

standards of living, and commanding ever more sophisticated and powerful technology.’ In

addition, this essay will focus mainly on the South China Sea as a case study as it provides the

clearest evidence that UNCLOS has failed in reducing the likelihood of conflict, with China,

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Vietnam and Malaysia amongst others who have been involved in standoffs and the

militarization of the region. This essay will also argue that regional and bilateral agreements,

such as the 2002 Declaration on a Code of Conduct by the South China Sea states, have been far

more effective in reducing the likelihood of conflict than UNCLOS because they are tailored to

the involved parties’ interests rather than the whole of the United Nations (henceforth, UN).

One of the most important issues concerning the future of hydrography is the impact of

the Third United Nations Convention on the Law of the Sea (UNCLOS III). From 1973 to 1982,

this Convention was the subject of what were probably the most prolonged and intense

multinational negotiations in history. With the possible exception of the United Nations Charter,

the Convention which resulted is the most important international law of this century. The

Convention has reshaped, and will continue to reshape, the character of the marine sector. Prior

to UNCLOS III, jurisdiction in the oceans was a simple black and white issue: states

sovereignty was absolute to the jurisdictional boundary, outside of which freedom of the high

seas was absolute. UNCLOS III brought major changes to both these long-standing concepts.

Sovereign rights are now phased down through several zones. The Territorial Sea, innocent orial

Sea, innocent passage through international straits, and expansion of partial sovereignty to 200

nautical miles in the Exclusive Economic Zone are all new concepts introduced in UNCLOS III

which expand states sovereignty. At the same time UNCLOS III places many restrictions on

freedom of the high seas, significantly through the principle of common heritage of mankind,

and measures to protect and preserve the marine environment.

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BRIEF UNCLOS BACKGROUND /HISTORY

Before the nautical law of UNCLOS came into force, there existed a school of thought

known as freedom-of-the-seas. This doctrine had first come into operation during the

17th century. As per this law, there were no limits or boundaries set to the aspect of marine

business and commercial activities.

Over the years and centuries as technology developed and the needs of the people across the

world grew, there emerged a problem. Over-exploitation of the sea’s resources was immensely

felt towards the middle of the 20th century and many nations started feeling the need to ensure

protection of their marine resources.

Starting with United States in the 1945, many countries across the world brought under

their jurisdiction, the natural resources found in their oceans’ continental shelf. Some of the

countries that exercised this power were Argentina, Canada, Indonesia, Chile, Peru, Ecuador and

even countries like Saudi Arabia, Egypt, Ethiopia and Venezuela.

Since the usage of the marine reserves rose even more in the 1960s and since missile launch pads

also starting getting based in the oceanic bed, it became imperative that a specific regulation be

placed to ensure proper protection and jurisdiction of the marine reserves.

In 1967, the Third United Nations Conference on the Law of the Sea was convened. In this

conference, the UN ambassador from Malta Mr. Arvid Pardo requested for a legal power that

could bring about international governance over the oceanic floor and bed. Such a legal power

would also ensure that there would not be any problems arising between various countries over

the oceanic floor and bed space.

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NOTE: In a major way, it was this UNCLOS III that paved the way for the now existing

nautical law.

The features and the highlights of the UNCLOS III can be explained as follows:

 UNCLOS as the currently prevailing law of the sea is binding completely.

 Even as the name of the nautical law suggests a United Nations’ involvement, the UN

does not have any major functional role in the working of UNCLOS

 There are 17 parts, 320 articles and nine annexes to UNCLOS

 The law of the sea provides for full money rights to nations for a 200-mile zone by their

shoreline. The sea and oceanic bed extending this area is regarded to be Exclusive

Economic Zone (EEZ) and any country can use these waters for their economic utilization

 The IMO (International Maritime Organisation) plays a vital role in the operation of

UNCLOS. Along with the IMO, organizations like the International Whaling Commission

and the International Seabed Authority are vital parties in the functional areas of the

nautical law

Even though UNCLOS has 160 member parties or there about, the U.S is a country that has

still not sanctioned (ratified) the nautical law. The main reason for the U.S not sanctioning the

law of the sea arises mainly because of its disagreement about Part XI of UNCLOS.

This part deals with the aspect of the minerals found on the seabed on the Exclusive economic

zones EEZ. The International Seabed Authority was established on the basis of this part of the

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nautical law and called for equitable distribution of the proceeds of such seabeds. The U.S is

opposed to this theory and that is why it has not ratified UNCLOS in spite of it being one of the

most important members of the United Nations.

With the help of a nautical law like UNCLOS, it can be said that marine resources can be

protected and safeguarded, especially in contemporary times where the need for marine

resources’ protection has increased even more than it was during the 1960s and 70s.

UNCLOS III EVOLUTION

The roots of UNCLOS III go back to the Challenger Expedition of the 1870s when it was

first discovered that the deep sea floor is littered with baseball-sized polymetallic nodules, made

up principally of iron and manganese, but with economically attractive copper nickel and cobalt

content as well. By the mid-1960s, it appeared that the technology to min the technology to mine

these nodules from the sea floor was available. This raised the international question - to whom

do the resources of the ocean belong? Prevailing law - freedom of the high seas - argued for

finders, keepers. It was rumored that Howard Hughes’ ship the Glomar Explorer was engaged in

nodule mining. This turned out to be a lie, to hide the fact that the ship was recovering a sunken

Soviet nuclear submarine for the CIA. However the possibility that the untold wealth of the

seabed would go to rich and powerful corporations with no benefits to the poor nations of the

world led to the introduction in 1967 at the United Nations General Assembly of the concept of

the Common Heritage of Mankind. From the beginning this was a concept that went to the heart

of international differences in political as well as legal and economic perspectives. It is the

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antithesis of freedom of the high seas. It was the opening move in the negotiations surrounding

UNCLOS III: negotiations, which continue, even today under the Preparatory Commission.

Although two conferences were held earlier, it was not until the 1973 conference that

procedural practices were developed for the drafting of a new Convention. Due to the widely

divergent interests on issues of such paramount importance, it was realized that resorting to

traditional voting rules would be unsatisfactory. Consensus was therefore adopted as the

principal means by which decisions were to be taken.

The Conference decided that because of the large number of participants and sensitive

issues involved, working groups would be more efficient than formal plenary sessions. Thus,

much of the work took place in small informal meetings, but always on the basis of consensus.

The working or negotiating groups were generally established on the basis of interest in a

particular issue. In this respect, States did not coalesce within traditionally regional or political

alignments. Rather they grouped themselves to face specific issues and to protect clearly

identifiable interests, such as:

• Coastal States wanted a legal regime that would allow them to manage and conserve the

biological and mineral resources within their national jurisdiction;

• Archipelagic States wanted to obtain recognition for the new regime of archipelagic waters;

• Landlocked States were seeking general rules of international law that would grant them transit

to and from the sea and rights of access to the living resources of their neighboring States;

• Some industrialized nations wanted to have guaranteed access to the sea-bed mineral resources

beyond national jurisdiction within a predictable legal framework;

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• Countries with strong land-based mining and minerals industries wanted assurances that the

sea-bed mineral production would not undermine their economies or result in a ‘de facto’

monopoly;

• Developing countries wanted to be more than silent witnesses to the acquisition of new

knowledge of the oceans so that marine science and technology could be put at the service of all

and not only of a limited number of very wealthy countries;

• States bordering straits wanted to ensure that free passage would not result in damage to their

marine environment or threats to their national security;

• Practically all nations wanted to preserve the freedoms of navigation, commerce, and

communication;

• Regional groupings had specific concerns pertinent to their region; and

• Finally, mankind as a whole needed to ensure that a new legal rÈgime would safeguard

the marine environment against depredation or irrational use of non-renewable resources, the

discharge or dumping of noxious substances into the oceans or the so-calle the so-called

scientific tests that could affect the delicate balance of marine life.

UNCLOS AS A CONSTITUTION FOR THE SEAS

As a framework Convention, UNCLOS covers a vast range of oceans issues. Organized

into seventeen parts and nine annexes, it provides for the rights and obligations of states

regarding the territorial sea and contiguous zone, straits used for international navigation,

archipelagic states, the exclusive economic zone, the continental shelf, the high seas, the regime

of islands, enclosed or semi-enclosed seas, the right of access of landlocked states to and from

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the sea and freedom of transit, the Area or seabed, protection and preservation of the marine

environment, marine and scientific research, the development and transfer of marine technology,

and the settlement of disputes. UNCLOS III has also 9 annexes. UNCLOS opened for signature

on December, 10th 1982 as stated before and entered in to force on 16 November 1994. The

following two implementation agreements were concluded:

1. The Agreement relating to the Implementation of Part XI of the United Nations

Convention on the Law of the Sea 1982 which entered into force on 28th July 1996.

2. The 1995 United Nations Agreement for the Implementation of the Provisions of the

United Nations Convention on the Law of the Sea of 10 December 1982 relating to the

Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish

Stocks (Straddling Fish Stocks Agreement) which was adopted in 1995 and then entered

into force on 11th December 2001.

THE OBJECTIVES AND PROVISIONS OF UNCLOS

a) Maritime Zones and State Sovereignty, Rights and Obligations

UNCLOS provides for the right of each coastal state to establish a territorial sea, contiguous

zone, and exclusive economic zone (EEZ) up to prescribed breadths and subject to conditions

which have been set out in UNCLOS. All other parts of the sea (excluding internal and

archipelagic waters) comprise the high seas. Thus, the outer limits of the territorial sea may

extend up to 12 nautical miles (M) from the baseline of the coastal state as determined in

accordance with UNCLOS; the contiguous zone up to 24 M from the baselines from which

the territorial sea is measured; and the EEZ up to 200 M from the baselines from which the

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territorial sea is measured. UNCLOS also provides for delimitation of these zones between

States with opposite or adjacent coasts. UNCLOS further provides that coastal states’

sovereignty extends to the territorial sea, the seabed thereunder and the airspace above, while

prescribing limited sovereign rights and/or jurisdiction exercisable in the contiguous and

exclusive economic zones. The rights of foreign ships and states in these zones are also

provided for, namely, the right of innocent passage in the territorial sea, rights and duties of

other states in the EEZ, and the obligation of coastal and other states to cooperate in respect

of conservation and use of, inter alia, highly migratory marine species. By contrast, the high

seas are open to all states and freedom of the high seas for all states is the general rule subject

to the provisions of UNCLOS as set out in Part VII thereof. UNCLOS also defines the

continental shelf as comprising the seabed and subsoil of the submarine area of a coastal state

beyond the territorial sea throughout the natural prolongation of its land territory to the outer

edge of the continental margin or up to 200 M from the baselines from which the territorial

sea is measured. It also provides for the establishment of the outer limit of the continental

shelf beyond 200 M from the baselines from which the territorial sea is measured up to 350

M or up to 100M from the 2,500 metre isobaths. Provision is also made in relation to the

rights of the coastal state over the continental shelf, the legal status of superjacent waters and

airspace and the rights and freedoms of other states in respect thereof, and, the right of all

states to lay cables and pipelines on the continental shelf subject to duties owed to and rights

of the coastal state. Under UNCLOS delimitation of the continental shelf between states with

opposite and adjacent coasts must be effected by agreement or Part XV procedures for

settlement of disputes as the case may be.

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b) Conservation and Preservation of Marine Resources and the Marine Environment

Under UNCLOS States are obligated to make provision for the protection and conservation

of marine resources and the marine environment in every maritime zone under their control

and subject to their regulations as well in the high seas. Therefore, while UNCLOS expressly

recognizes the right of nationals of States to fish in the high seas it also places states under an

obligation to adopt living resource conservation measures based on the best scientific

research available to states as prescribed by UNCLOS III in respect of their nationals

engaging in fishing or harvesting activities in the high seas.

In the same regard, while states are entitled to exploit their natural marine resources

according to their national policies, states are also obligated to take measures to preserve and

protect the marine environment. Accordingly UNCLOS mandates that states must take all

measures within their capabilities and consistent with the provisions of UNCLOS necessary

to prevent, reduce and control pollution of the marine environment from any source; to

ensure that activities under their jurisdiction or control are conducted so as not to cause

damage by pollution to other states and their environment and that any pollution arising in

their jurisdiction and under their control does not spread beyond their control or jurisdiction;

and, inter alia, take measures to prevent reduce and control pollution resulting from the use

of technologies under their jurisdiction and control. UNCLOS also imposes a duty upon

states to refrain from transferring damage or hazards or transforming one type of pollution to

another.

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UNCLOS also makes provision for:

(1.) Global and regional cooperation whether directly or through international

organizations to formulate standards and measures consistent with UNCLOS to

protect and preserve the marine environment;

(2.) The provision of technical assistance to developing states to facilitate

protection and preservation of their marine environment in accordance with

UNCLOS;

(3.) States to take measures to monitor and assess by recognized scientific

methods as well as report on the risks or effects of pollution on the marine

environment and the risks and potential effects of activities reasonably suspected

to result in marine pollution; and

(4.) States to adopt national legislation, regulations policies and all other measures

necessary to prevent, reduce and control pollution from land-based sources, from

seabed activities under national jurisdiction, from activities in the Area

undertaken by vessels, installations, structures or other devices flying their flags,

by way of illegal and unauthorized dumping, from vessels of their registry or

flying their flags, and from or through the atmosphere applicable to their airspace

and to vessels flying their flags, or vessels or aircraft of their registries.

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 The international legal rules applicable to the enforcement of marine pollution laws and

regulations are contained at sections 6 and 7 of UNCLOS. Section 6 of UNCLOS sets out

enforcement provisions in respect of pollution from land-based sources, from seabed

activities, from activities in the Area, by way of dumping and regarding pollution from or

through the atmosphere. This section also sets out the respective enforcement obligations of

flag, port and coastal states; measures relating to vessel seaworthiness in order to avoid

pollution of the marine environment; and measures to avoid pollution arising from maritime

casualties. Accordingly, states must enforce national laws and regulations adopted in

accordance with articles 207, 208, 210 and Part XI of UNCLOS, as well as adopt laws and

regulations, and take other measures necessary to implement applicable international rules

and standards established through competent international organizations or diplomatic

conference in order to prevent, reduce and control pollution arising from land-based sources,

seabed activities, activities in the Area and dumping. In this regard, coastal states may only

enforce laws and regulations in respect of dumping, in the territorial sea, (EEZ) or

continental shelf while flag states must enforce dumping laws and regulations with regard to

vessels of their registries or flying their flags. Any state may enforce dumping laws and

regulations in respect of the loading of wastes or other matter occurring within its territory or

at its off-shore terminals. In general, where its pollution laws and regulations adopted in

accordance with UNCLOS and international rules and standards have been breached, a

coastal state, subject to safeguards at section 7 of UNCLOS, may effect enforcement against

an offending vessel in the territorial sea and/ or the EEZ or within one of the coastal state’s

ports or at an offshore terminal, as the case may be, if there are clear grounds for suspecting

that the vessel committed the breach while navigating the EEZ or territorial sea. Even then,

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the coastal state may only take certain action as prescribed by UNCLOS according to the

zone in which the vessel is found navigating, the zone in which the breach is believed to have

occurred, the level of damage or potential damage, and the cogency of evidence in all the

circumstances. Flag states, on the other hand, must enforce pollution laws and regulations

adopted in accordance with UNCLOS and international rules and standards by taking

appropriate measures to, inter alia, which include; (a) ensure that ships of their registries or

flying their flags carry internationally recognized and required certificates, and undergo

regular inspection of such certificates, (b) prohibit such vessels from sailing if they fail to

meet internationally recognized standards and requirements, (c) provide for immediate

investigations into, and where appropriate, institution of proceedings against vessels of their

registries or flying their flags alleged to have committed breaches of rules and standards

established through competent international organizations or diplomatic conferences,

irrespective of where the breach or resulting pollution is alleged to have occurred.

Safeguards at section 7 of UNCLOS, make further provision for, inter alia which

include; (a) the limitation of enforcement against foreign vessels to be exercised by officials,

by warships or other clearly marked government vessel or craft; (b) specific measures for

facilitating instituted proceedings; (c) the limitation of physical inspections of foreign vessels

to the production of documents that the vessel is internationally required to carry, (d)

specified conditions for further physical inspection to be conducted; (e) the limitation of the

delay of foreign vessels to no longer than is essential for the purposes of investigation and (f)

the duty of states to avoid causing damage to or endangering vessels or the safety of

navigation.

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 UNCLOS also provides that states shall be liable in accordance with international law

with respect to their obligations to protect and preserve the marine environment. Under

UNCLOS, states are also obligated to ensure in accordance with their respective legal

systems that recourse is available for prompt and adequate compensation or other relief with

respect to damage caused by pollution of the marine environment by natural and juridical

persons under their jurisdiction. To this end, states are obliged to cooperate in the

implementation of international law relating to responsibility and liability for the assessment

of and compensation for damage, and the settlement of disputes, as well as development of

criteria and procedures for payment of compensation, such as compulsory insurance or

compensation funds. All states and competent international organizations (IOs) have the right

to conduct MSR subject to the rights and duties of other states as provided by UNCLOS, and

are obligated to promote and facilitate the development and conduct of MSR in accordance

with UNCLOS. Generally, states are obliged to carry out MSR exclusively for peaceful

purposes, with appropriate scientific methods and means compatible with UNCLOS, without

unjustifiable interference with other legitimate uses of the sea compatible with UNCLOS,

and in compliance with all relevant regulations adopted in conformity with UNCLOS

including those adopted for the protection and preservation of the environment. UNCLOS

also provides for cooperation among states as well as among states and IOs in promoting

MSR. Coastal state rights and duties as they relate to MSR include exclusive rights to

regulate, authorize and conduct MSR in the territorial sea and the right to regulate, authorize

and conduct MSR in the exercise of its jurisdiction in relation to the EEZ and continental

shelf in accordance with UNCLOS. MSR may only be conducted in these maritime zones

with the express consent of the coastal state. In ordinary circumstances, coastal states shall

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grant consent for MSR projects by other states or by IOs in the EEZ and CS to be conducted

in conformity with UNCLOS exclusively for peaceful purposes and in order to increase

scientific knowledge of the marine environment for the benefit of mankind. Thus coastal

states are obligated to establish rules and procedures ensuring the prompt provision of

consent and prohibiting unreasonable denial thereof. This rule is, however, subject to

exceptions where the coastal state in its discretion may withhold consent if the proposed

project; (a) except in relation to the ECS, is of direct significance for the exploration and

exploitation of living and/ or non-living natural resources; (b) involves drilling or the

introduction of explosives or some harmful substance into the continental shelf; (c) involves

construction, operation or use of artificial islands, installations or structures referred to at

articles 60 and 80 of UNCLOS; or (d) contains inaccurate information or is put forward in

the face of prior outstanding obligations to the coastal state.

c) Fisheries

The Straddling Fish Stocks Agreement establishes principles for the conservation and

management of straddling and highly migratory fish stocks, basing management on the

precautionary principle and the best available scientific information. The Agreement harks

back to the Convention’s principle of state cooperation in ocean resource management and

conservation, promoting such by establishing detailed minimum international standards for

the conservation and management of straddling fish stocks and highly migratory fish stocks;

ensuring that measures taken for the conservation and management of those stocks in areas

under national jurisdiction and in the adjacent high seas are compatible and coherent;

ensuring that there are effective mechanisms for compliance and enforcement of those

measures on the high seas; and recognizing the special requirements of developing States in

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 relation to conservation and management as well as the development and participation in

fisheries for the straddling and highly migrating stocks

d) Institutions and Mechanisms Established by UNCLOS

These are largely seen in the annexes68 to the Convention. The Commission on the Limits of

the Continental Shelf is established at Annex II pursuant to the provisions of Article 76 of the

Convention concerning the continental shelf. Annex II sets out the composition, functions

and powers (compulsory and discretionary) of the Commission, including their mandate to

function by way of sub-commissions. The International Seabed Authority is established at

Article 156 of the Convention and all of section 4 of Part XI (Articles 156-184) deal with

(a) the nature and fundamental principles of the Authority, (b) the powers, functions and

procedures of its organs, the Assembly, the Council and the Secretariat, (c) their respective

composition, procedures and voting rights, (d) the organs of the Council, (e) Authority staff,

and (f) the Enterprise, another organ of the Authority the statute of which is established at

Annex IV.

THE CONTINENTAL SHELF

UNCLOS III Article 76 defines many ways in which the outer boundary of the

continental shelf may be established by a coastal state. It is widely misunderstood. Legal experts

assume that the very specific technical provisions in this Article indicate that these provisions

can be easily implemented. That is not true. Technical experts assume that these very difficult

technical procedures have been included for some legal reasons. That also is not true. The

wording of Article 76 appears to have developed from political process of consensus building

that was at the foundation of the UNCLOS III negotiations.

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Article 76: Definition of the continental shelf

1. The continental shelf of a coastal State comprises the sea-bed and subsoil of the submarine

areas that extend beyond 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 nautical miles from the

baselines from which the breadth of the territorial sea is measured where the outer edge of the

continental margin does not extend up to that distance.

2. The continental shelf of a continental shelf of a coastal State shall not extend beyond the limits

provided for in paragraphs 4 to 6.

3. The continental margin comprises the submerged prolongation of the landmass of the coastal

State, and consists of the seabed and subsoil of the shelf, the slope and the rise. It does not

include the deep ocean floor with its oceanic ridges or the subsoil thereof.

4. (a) For the purposes of this convention, the coastal State shall establish the outer edge of the

continental margin wherever the margin extends beyond 200 nautical miles from the baselines

from which the breadth of the territorial sea is measured, by either:

(i) A line delimited in accordance with paragraph 7( 7.) by reference to the outermost fixed

points at each of which the thickness of sedimentary rocks is at least 1 per cent of the shortest

distance from such point to the foot of the continental slope; or

(ii) a line delineated in accordance with paragraph 7( 7.) by reference to fixed points not more

than 60 nautical miles from the foot of the continent of the continental slope.

4.(b) In the absence of evidence to the contrary, the foot of the continental slope shall be

determined as the point of the maximum change in the gradient at its base.

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5. The fixed points comprising the line of the outer limits of the continental shelf on the sea-bed,

drawn in accordance with paragraph 4 (a)(i) and (ii), either shall not exceed 350 nautical miles

from the baselines from which the breadth of the territorial sea is measured or shall not exceed

100 nautical miles from the 2500 metre isobath, which is a line connecting the depth of 2500

metres.

6. Notwithstanding the provisions of paragraph 5, on submarine ridges, the outer limit of the

continental shelf shall not exceed 350 nautical from the baselines from which the breadth of the

territorial sea is measured. This paragraph does not apply to submarine elevations that are natural

components of the continental margin, such as its plateau, rises, caps, banks and spurs.

7. The coastal State shall delineate the outer limits of its continental shelf, where that shelf

extends beyond 200 nautical miles from the baselines from which the breadth of the territorial

sea is measured, by straight lines not exceeding 60 nautical miles in length, connecting fixed

points, defined by co-ordinates of latitude and longitude.

8. Information on the limits of the continental shelf beyond 200 nautical miles from the baselines

from which the breadth of the territorial sea is measured shall be submitted by the coastal State

to the Commission on the Limits of the Continental Shelf set up under Annex II on the basis of

equitable geographical representation. The Commission shall make recommendations to coastal

states on matters related to the establishment of the outer limits of their continental shelf. The

limits of the shelf established by a coastal State on the basis of these recommendations shall be

final and binding.

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9. The coastal State shall deposit with the Secretary-General of the United Nations charts and

relevant information, including geodetic data, permanently describing the outer limits of its

continental shelf. The Secretary-General shall give due publicity thereto.

10. The provisions of this article are without prejudice to the question of delimitation of the

continental shelf between States with opposite or adjacent coasts.

This article shows the importance in the delimitation process of obtaining enough

information to adequately describe the bottom topography and geology. This information is

required to define the continental shelf within the Law of the Sea. Each coastal state must submit

this information for evaluation to a Commission on the Limits of the Continental Shelf that

consists of 21 experts in geology, geophysics and hydrography (UNCLOS III Annex II, Article)

4). This commission is to be set up once UNCLOS III comes into force, with the initial election

of these experts occurring no later than 18 months after the Convention comes into force.

There is an important time limit involved here (Annex II, Article 4). The latest date for a coastal

state to submit its continental shelf claim, supported by convincing evidence, is 10 years after

that state ratifies, or otherwise O to the Convention. This is a one-time window of opportunity,

which is open for the next decade or so. After that the continental shelf “pie” will have been cut

up. The information, which must be presented to the Commission on the Limits of the

Continental Shelf, is likely to require extensive and detailed hydrographic and geological surveys

of the seabed from the continental slope to the outer limits of any boundary claim. For example,

in order to collect the geophysical survey data needed to determine and support a continental

shelf claimed by Canada may take as many as 1000 survey vessel days for eastern Canada and as

many as 10 field seasons for the Arctic.

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In the spring of 1993, a two-day meeting was held of the United Nations Committee of Experts

on the Definition of the Continental Shelf. The purpose of this meeting was to comment on the

draft of a manual prepared by United Nations staff that describes in detail the issues surrounding

Article 76 and the definition of the continental shelf. This manual was revised and published in

late 1993 as one of a series of LOS “issues manuals” being produced by the UNCLOS

documents office. Four of such manuals have been produced so far (Baselines; Marine Scientific

Research; High Seas Fishing; and Definition of the Continental Shelf).

MARITIME SECURITY IN THE 21st CENTURY

The preamble sets forth the aims of UNCLOS and it is easy to compare the objectives of the

UN at the time and its failed implementation today, ‘with due regard for the sovereignty of all

States, a legal order for the seas and oceans which will facilitate international communication,

and will promote the peaceful uses of the seas and oceans, the equitable and efficient utilization

of their resources’ however from its inception UNCLOS had a considerable flaw in that it had

due regard for the sovereignty of all states. This is problematic for modern applications as the

potential conflicts of the future are likely to occur from sovereignty disputes in which neither

side is willing to sacrifice their claim so easily, and despite UNCLOS judicial settlements being

binding ‘The States Parties to UNCLOS, including China and the Philippines, are obliged to

submit any dispute concerning the interpretation or application of the Convention to a judicial

settlement procedure that leads to a binding decision’ there have been occasions where nations

22
accused of violating UNCLOS have stated that bilateral talks would have been more preferable

‘while the Philippines was within its rights, according to UNCLOS, to internationalize its dispute

with China over maritime jurisdiction within the West Philippine Sea (its name for the South

China Sea), the benefits of calling for multilateral arbitration remain doubtful. As [Premier] Zhu

pointed out, bilateral talks would have been preferable.’ Many would argue that the Philippines

were forced into internationalising their dispute with China due to the aggressive nature of the

Chinese on such issues, yet the Philippines may have been more successful if they had engaged

the Chinese in bilateral agreements, as UNCLOS is not the only means of conflict resolution

available to states.

Furthermore, many major nations at the time refused to sign the UNCLOS as the UN were

not able to come to a consensus on issues such as deep sea beds from 1974 onwards, complete

agreement proved impossible on one outstanding issue, the future of the deep seabed.

President Reagan’s USA loyally followed by its two most faithful allies, Britain and the

German Federal Republic, refused to sign the resulting United Nations Convention on the Law

of the Sea. This has had a negative effect on how nations view the UNCLOS today, as Grove

continues to say: This hostile attitude still prevents the 1982 Convention forming the formal

basis for the international law of the sea. The attitudes from the signing nations towards

UNCLOS was not universally supportive and this has continued to exist in the past few decades

as many nations disregard UNCLOS as an effective means of global governance of the seas. This

has led to many infringements by nations since, such as the states involved in the South China

Sea dispute, which will be examined further later in this essay. One major factor that the nations

creating UNCLOS did not consider fully was the environmental strain that would occur from

increased global activity on the high seas and the rapid technological expansion of maritime

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industries .When UNCLOS was negotiated, the high seas were protected because they were

inaccessible. But technological advances have enabled the exploitation of resources to extend

farther and deeper than ever before. Many new coastal states opened their waters to foreign

fishing fleets because they did not adhere to UNCLOS’ idea of efficiently managing the use of

the ocean’s resources so long as ocean resources were either inaccessible or inexhaustible, it

made little difference to coastal states whether or not others came to exploit resources off their

shores. Nations have suffered immensely from overfishing, such as Somalia where many ex-

fishermen have turned to piracy in order to survive and this represents one of the issues with

UNCLOS, that it is outdated and lacks the clarity and influence to prevent conflicts arising from

problems such as overfishing and resource competition. The exploitation of the ocean’s natural

resources because of a lack of governance from the UNCLOS nations has increased the

likelihood of conflict in the future. For example, the vast majority of post-World War II coastal

states were developing and in that regard the acquisition of resources was paramount. Many of

these are coastal states, and most of them are developing countries a combination which has

greatly heightened the competition for control over ocean resources. Competition with maritime

nations such as the United Kingdom (henceforth UK) meant that tensions rose between the two

groups: After World War II a distinct political cleavage began to develop between coastal states

and maritime states, and disputes and conflicts between them became increasingly common.

UNCLOS has failed to resolve such issues, it does not provide clear and consistent decisions in

these cases but rather tries to contain the disputes. The convention will not so much resolve some

disputes as contain them (Buzan 1978). It will not create order out of chaos, but rather define the

terms of disorder. A key flaw to UNCLOS is that it does not create order in resource disputes

which has led to heightened tensions in areas such as the South China Sea over the limited

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resources, with China’s building of an off-shore oil platform in Vietnamese waters leading to

extremely tense relations between the two after China stationed an oil rig in waters claimed by

Vietnam, ships from the two countries engaged in ramming and water-cannon battles at sea; anti-

Chinese riots in Vietnam followed because UNCLOS does not resolve disputes many nations

have been stalling talks Asean states not directly affected by the Spratly disputes were content to

kick the issue down the road which will eventually reach a boiling point, most likely ending in

conflict, particularly with many nations in disputed territories increasing their military budgets

consistently every year (Buzan 1978). Resource disputes are widespread today and it is not

limited to developing nations who are competing with each other, Spain and the UK have had

disagreements over Gibraltar and in 1998 Over 520 incursions by Spanish fishermen of the

claimed British territorial waters were recorded by Gibraltar police and this occurs even though

the British claim to Gibraltar is absolutely clear ‘both international customary and conventional

law support the British claim. This would therefore seem to suggest that UNCLOS in particular

does not stop resource disputes even if there is no clear sovereignty issue at hand as well. China

has been particularly aggressive in its suppression of foreign vessels, examples of this include;

The imposition, and especially the enforcement, of fishing bans on foreign vessels, as well as the

confiscation of ship cargo (fishing catches), and crew detentions. Whilst many nations can

tolerate the banning of their vessels from Chinese waters, the detention of their citizens under

Chinese interpretation of UNCLOS has led to increasingly volatile behavior from all involved

parties. Resource acquisition and exploitation has not been managed well under UNCLOS as

states are still willing to violate UNCLOS in order to pursue economic gains and this has led to

states such as China becoming increasingly more aggressive over their claimed sovereignty. This

no doubt will lead to conflict in areas such as the South China Sea as the Wall Street Journal

25
noted in 2011. Therefore, the failure of UNCLOS to resolve sovereignty disputes has

contributed to increased aggression by states in attempts to gain and control territory for the

exploitation of resources.

The escalation of tensions in the South China Sea must be examined in order to fully

comprehend the failure of UNCLOS to prevent future conflicts. The states primarily involved in

sovereignty disputes have varying claims to the areas they possess or seek to possess and under

UNCLOS all have a mandate to scrutinize and accuse the other under international law. This

poses many problems, the accused main aggressor in the region, China, has a history of

aggression against alleged foreign trespassers in their territory Skirmishes between China and

Vietnam took place in 1974 and 1988 which culminated in the deaths of 74 Vietnamese sailors in

Johnson Reef. China clashed with Vietnam in March 1988 while occupying Johnson Reef,

killing seventy-four Vietnamese sailors. This has led to increased tensions between these nations

over sovereignty. However, efforts were made by the Chinese in an attempt to calm concerns

over the threat of a rising China, for example China has pursued a variety of escalation control

mechanisms, including signing the 2002 declaration on a code of conduct, agreeing to

implementing guidelines for the declaration in 2011, and reaching an agreement with Vietnam on

basic principles in 2011.The 2002 declaration on a Code of Conduct (henceforth DCOC) can be

argued to be more successful than UNCLOS in reducing tensions in the South China Sea and

many would argue that regional and bilateral agreements are more effective at doing so than

broad international laws such as UNCLOS that lack the specifics to appease parties in a dispute.

This resonates today as many nations have felt that bilateral talks have been more successful at

times in the past and therefore can be considered over using UNCLOS as a mediator for disputes.

Attempts have been made by most involved parties in the South China Sea dispute to bring their

26
claims in line with UNCLOS, which gives the convention more legitimacy in these matters,

President Aquino in particular has proven willing to set aside the long-term issue of control over

the Spratlys for the sake of finding an acceptable solution to maritime claims based on

UNCLOS. However the attempts of many to legitimize their claims in hope of reducing the

likelihood of conflict through UNCLOS will not lead to peace in the South China Sea. Many

nations have realized that they must come together through regional actors in order to fend off

Chinese aggression. The Philippines has joined Vietnam in recent years in recognizing that it

cannot hold the line against China without a multilateral effort involving all the ASEAN

claimants. The repercussions of a combined ASEAN effort to combat Chinese claims to the

territories in the South China Sea would be phenomenal and would most certainly lead to

dramatically increased tension in the region and possibly even conflict. Whilst this is an issue

with the nature of ASEAN regional efforts as an alternative to individual states using UNCLOS

to resolve disputes it does highlight the fact that UNCLOS is not always the best option in the

opinion of the states of the South China Sea. In 2009 China submitted its own claims to the

South China Sea after nearly a decade of reducing tension in the region, this was in response to

the joint Malaysia-Vietnam submission of claim in line with UNCLOS ‘That situation began to

change substantially in May 2009, when China submitted its dashed lines and claim to the CLCS

as part of its notes verbale in response to the joint Malaysia / Vietnam submission. As previously

mentioned in this essay China has stated they would prefer bilateral or regional discussions on

sovereignty issues, yet there has been increasing willingness to abide by UNCLOS from the

other states, for example Vietnam used UNCLOS for two main reasons ‘Vietnam’s desire to

bring its claim in line with UNCLOS has been driven by two factors – the realization that it

cannot defend its claims against Chinese encroachment by itself and the desire to step up

27
exploitation of offshore resources. The message that this sends to China is not one of conflict

resolution but of other motives, and the fact that many are so willing to blame China as the lone

aggressor in this dispute. Other nations pointing the finger at Beijing as the sole provocateur in

the disputes have contributed to increased Chinese aggression in the region today. Furthermore,

previously low tensions between the South China Sea states have been heightened by a need to

spend increased economic budgets on defence spending, in line with renewed territorial disputes

in the region. Despite much of the diplomatic talks being about peaceful resolution such as from

Singapore Minister Shanmugam also said that this should be done in accordance with

international law and stated that all parties should refrain from provocative behaviour that could

raise tensions in the South China Sea. There have been increased efforts to militarise and combat

Chinese defence spending uncertainties over the disputes in the South China Sea and China’s

military buildup have led many countries in the region to bolster their military capabilities. In

fact, over the 2014-2015 period Singapore’s defence spending increased by an estimated 5.7%28

and this is minute compared to China, which maintained its double digit budget increase once

again this year, the Chinese defense budget will rise by 10.1 percent, to roughly $145 billion

which is a far cry from 1997 when total defence was roughly $10 billion ‘Chinese military

expenditures totaled only about $10 billion, roughly on par with Taiwan and significantly less

than that of Japan and South Korea. Despite the existence of UNCLOS, tensions over territory

and resources have led nations to increase their defence spending to prepare for any potential

conflict. UNCLOS has failed therefore in providing the means for consistent conflict resolution

regarding the high seas, leading to increased tensions and potential for conflict and this can be

contributed to the varying claims of different nations in the South China Sea to the same

territories and a lack of willingness to resolve the disputes peacefully in line with UNCLOS.

28
China is less willing to negotiate especially since it is becoming one of the strongest militaries in

the world. China’s behavior in these territorial disputes is also magnified because its military

capabilities have developed to the point where they are greater than those of most of the other

claimants’ and this has prompted the U.S. to intervene in the region, despite having no claim

over any of the disputed territories. Of course, the U.S. is there to prevent the sea lanes from

being closed by an aggressive China, or any potential conflict ‘the United States has a stake in

ensuring that the vital sea lanes of communications throughout the region but have been involved

in tense standoffs with the Chinese throughout the PRC’s Exclusive Economic Zone. Gareth

Evans argued that there was a shift in power in the Asia Pacific. The days of America’s

unequivocal primacy and unilateral capacity to write the rules are over and it is hard to disagree

that China is becoming more willing to breach international law due to an increasingly powerful

military.

CONCLUSION:

In conclusion, whilst UNCLOS is a step forward in global governance of the sea

UNCLOS articles are increasingly regarded as providing the framework for international

maritime cooperation there is a vast disconnection from the intended outcome of the articles and

their use by nations today. UNCLOS is vastly outdated, failing to keep up with the rapid

technological advances of states and their industries that have made access to the sea far easier

for all. Furthermore, this essay has argued and assed that UNCLOS has failed in resolving

disputes between nations, instead it has merely contained them for now which has resulted in

nations in regions such as the South China Sea increasing their defence spending in the event the

tensions turn to conflict. Further investigation was made into the South China Sea dispute, with

29
the U.S. becoming heavily involved in the region and the rise of China as a military power has

led to a power balance struggle, although the U.S. can expect to remain the dominant power in

the region for some time it is no longer unchallenged. Finally, whilst this essay has argued the

detrimental effects of the gaps in UNCLOS one cannot disregard it as a key piece of international

maritime law, but it must be modernised and given stricter control of decision making in the

disputes that could lead to conflict in the world today.

The Convention has become the legal framework for marine and maritime activities and

IUCN with its partners are working towards an implementing agreement (UNCLOS IA) that will

close important gaps in governance. A positive result would provide a measure of protection and

conservation of Areas Beyond National Jurisdiction (ABNJ) where there is none at present.

Over time, the Convention has become the legal framework for marine and maritime activities.

The appropriate political body to handle them is the General Assembly of the United Nations.

This principle is recalled each year in the resolution on the law of the sea adopted by the UNGA.

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