LAW OF SEA
INTERNATIONAL LAW [December 10, 1982]
UNITED NATIONS CONVENTIONS ON LAW OF SEA (UNCLOS)
Law of the Sea, branch of international law concerned with public order at
sea. Much of this law is codified in the United Nations Convention on the Law
of the Sea, signed Dec. 10, 1982. The convention, described as a “constitution
for the oceans,” represents an attempt to codify international law
regarding territorial waters, sea-lanes, and ocean resources. It came into force
in 1994 after it had been ratified by the requisite 60 countries; by the early 21st
century the convention had been ratified by more than 150 countries.
According to the 1982 convention, each country’s sovereign territorial waters
extend to a maximum of 12 nautical miles (22 km) beyond its coast, but foreign
vessels are granted the right of innocent passage through this zone. Passage is
innocent as long as a ship refrains from engaging in certain prohibited
activities, including weapons testing, spying, smuggling, serious pollution,
fishing, or scientific research. Where territorial waters comprise straits used for
international navigation (e.g., the straits of Gibraltar, Mandeb, Hormuz,
and Malacca), the navigational rights of foreign shipping are strengthened by
the replacement of the regime of innocent passage by one of transit passage,
which places fewer restrictions on foreign ships. A similar regime exists in
major sea-lanes through the waters of archipelagos (e.g., Indonesia).
Beyond its territorial waters, every coastal country may establish an exclusive
economic zone (EEZ) extending 200 nautical miles (370 km) from shore. Within
the EEZ the coastal state has the right to exploit and regulate fisheries,
construct artificial islands and installations, use the zone for other economic
purposes (e.g., the generation of energy from waves), and regulate scientific
research by foreign vessels. Otherwise, foreign vessels (and aircraft) are
entitled to move freely through (and over) the zone.
With regard to the seabed beyond territorial waters, every coastal country
has exclusive rights to the oil, gas, and other resources in the seabed up to 200
nautical miles from shore or to the outer edge of the continental margin,
whichever is the further, subject to an overall limit of 350 nautical miles (650
km) from the coast or 100 nautical miles (185 km) beyond the 2,500-metre
isobath (a line connecting equal points of water depth). Legally, this area is
known as the continental shelf, though it differs considerably from the
geological definition of the continental shelf. Where the territorial waters,
EEZs, or continental shelves of neighboring countries overlap, a boundary line
must be drawn by agreement to achieve an equitable solution. Many such
boundaries have been agreed upon, but in some cases when the countries have
been unable to reach agreement the boundary has been determined by
the International Court of Justice (ICJ; e.g., the boundary between Bahrain and
Qatar) or by an arbitration tribunal (e.g., the boundary between France and the
United Kingdom). The most common form of boundary is an equidistance line
(sometimes modified to take account of special circumstances) between the
coasts concerned.
The high seas lie beyond the zones described above. The waters and airspace of
this area are open to use by all countries, except for those activities prohibited
by international law (e.g., the testing of nuclear weapons). The bed of the high
seas is known as the International Seabed Area (also known as “the Area”), for
which the 1982 convention established a separate and detailed legal regime. In
its original form this regime was unacceptable to developed countries,
principally because of the degree of regulation involved, and was subsequently
modified extensively by a supplementary treaty (1994) to meet their concerns.
Under the modified regime the minerals on the ocean floor beneath the high
seas are deemed “the common heritage of mankind,” and their exploitation is
administered by the International Seabed Authority (ISA). Any commercial
exploration or mining of the seabed is carried out by private or state concerns
regulated and licensed by the ISA, though thus far only exploration has been
carried out. If or when commercial mining begins, a global mining enterprise
would be established and afforded sites equal in size or value to those mined by
private or state companies. Fees and royalties from private and state mining
concerns and any profits made by the global enterprise would be distributed to
developing countries. Private mining companies are encouraged to sell their
technology and technical expertise to the global enterprise and to developing
countries.
On many issues the 1982 convention contains precise and detailed regulations
(e.g., on innocent passage through territorial waters and the definition of the
continental shelf), but on other matters (e.g., safety of shipping, pollution
prevention, and fisheries conservation and management) it merely provides a
framework, laying down broad principles but leaving the elaboration of rules to
other treaties. Regarding the safety of shipping, detailed provisions on the
safety and seaworthiness of ships, collision avoidance, and the qualification of
crews are contained in several treaties adopted under the auspices of
the International Maritime Organization (IMO), a specialized agency of
the United Nations (UN). The IMO also has adopted strict antipollution
standards for ships. Pollution of the sea from other sources is regulated by
several regional treaties, most of which have been adopted under the aegis of
the United Nations Environment Programme. The broad standards for fisheries
conservation in and management of the EEZ (where most fishing takes place)
laid out in the 1982 convention have been supplemented by nonbinding
guidelines contained in the Code of Conduct for Responsible Fisheries adopted
in 1995 by the UN Food and Agriculture Organization. Principles of
management for high seas fishers are laid down in the UN fish stocks treaty
(1995), which manages straddling and highly migratory fish stocks, and in
detailed measures adopted by several regional fisheries commissions.
Countries first attempt to settle any disputes stemming from the 1982
convention and its provisions through negotiations or other agreed-upon means
of their choice (e.g., arbitration). If such efforts prove unsuccessful, a country
may, subject to some exceptions, refer the dispute for compulsory settlement by
the UN International Tribunal for the Law of the Sea (located in Hamburg,
Ger.), by arbitration, or by the ICJ. Resort to these compulsory procedures has
been quite limited.
WRITTEN BY
Robin R. Churchill
Professor of International Law, University of Dundee, Scotland. Coauthor
of The Law of the Sea and Marine Management in Disputed Areas. Coeditor
of International Law and Global Climate...
