40th Agenda 

40th Session Issues

Law of the Sea

DEFINITION

The United Nations began to take an active interest in the law of the sea in 1958. Since that time it has attempted to establish guidelines on ocean claims by particular nations, establish certain freedoms of navigation, and settle any disputes that nations may have concerning the oceanic commons.

ORIGINS OF THE ISSUE

No form of international jurisdiction over the oceans had been established prior to this century. Despite this, most seafaring nations abided by certain rules which followed precedents set centuries before. These precedents involved claims on territorial waters extending only three nautical miles from the shoreline, and the freedom of navigation.

In the 1940's the United States discovered oil deposits on its continental shelf. As a result of this financially lucrative discovery, President Truman stated in 1945 that the United States had the right to claim all of the mineral resources on the continental shelf beyond the traditional three-mile limit. Several other nations followed suit. Most notable challengers to the traditional concept of a three mile limit were Chile, Ecuador, and Peru, which claimed territorial waters extending 200 miles from the shoreline. It quickly became clear that overlapping territorial claims to the oceans would create many serious problems if not dealt with effectively. Attempts to enforce territorial claims led to international crises. For example, Peruvian authorities and the United States tuna fleet had several skirmishes involving fishing rights, and similar conflict occurred between Britain, Iceland, and Norway.

The United Nations, assuming a leading role, invited nations to participate in the first conference on the Law of the Sea in 1958. Since then, two more conferences on the law of the sea sponsored by the United Nations have followed.

The First Two Conferences

At the 1958 conference, four conventions were established:

1. The first, stated that a nation's claim to territorial waters could not exceed twelve miles.

2. The second, established a series of rights by which all nations had to abide; these rights upheld the freedom to use the seas.

3. The third, required nations to regulate fisheries which were beyond the twelve-mile limit.

4. The fourth, allowed nations to explore for mineral resources outside of their territorial claims to a depth of 200 meters, or until the waters would no longer permit this activity.

This fourth convention, however, created new problems. Nations that were eager to exploit minerals from the oceans extended their oceanic boundaries to 200 miles and beyond. In an attempt to settle these unsolved problems, a second conference on the Law of the Sea was called in 1960. This conference, however, failed to settle conflicting claims to territorial waters or questions of fishing rights beyond those waters.

Unresolved Issues

Most observers agree that neither conference proved successful. Regulations created by them lacked specificity, and both conferences failed to address several complex problems, among them the question of channels and straits, and the burgeoning competition for resources brought about by technological developments.

The question regarding claims for channels and straits is particularily vexing. A key example is the case of the English Channel. At its narrowest point the Channel is 21 miles wide, and could cease to be an international waterway if both France and Great Britain exercised their twelve-mile territorial claim.

A second issue rose to the surface in the early 1960's. The demand for fish, to feed increasing populations had grown. New technological developments made harvesting seafood easier than ever. Industrialized nations, however, had monopolized ocean fishing. Developing countries, trying to turn to the oceans as a much needed source of food, lacked the sufficient technology to do so thus illustrating the growing "north-south" nature of the issue.

Within the oceanic commons are potential finds of petroleum and natural gas. These financially profitable resources provide even more incentive for coastal powers to disregard any regulations limiting their claims to a specified number of miles.6 Also, most deep seabed mineral resources are located in areas which have not been claimed by any particular nation. Realistically, only the industrialized nations are capable of excavating these resources. Less developed nations fear that they will not have access to these minerals, and have been in favor of establishing a strong international regulatory body.8 Finally landlocked countries, outraged at the coastal states gobbling up large amounts of oceanic territory, have retaliated by forming alliances. Austria and Hungary united in an effort to determine the amount of territorial waters they could claim collectively.

THE 1974 CONFERENCE

What had once seemed to be a relatively simple issue turned out to be far more complicated. As a result, a third United Nations conference on the Law of the Sea had to be called in 1974. The conference led to eight years of detailed negotiations. Finally in 1982, a Convention on the Law of the Sea was concluded. The less controversial aspects of the 1982 Convention can be summarized as follows:

1. Coastal States would exercise sovereignty over their territotial sea of up to twelve miles in breadth, but foreign vessels would be allowed innocent passage through these waters for purposes of peaceful navigation.

2. Ships and aircraft of all countries would be allowed transit passage through straits used international navigation, as long as they proceeded without delay and without threatening the bordering States. States alongside the straits would be able to regulate navigation and other aspects of passage.

3. Archipelagic States, made up of a group or groups of closely related islands and interconnecting waters, would have sovereignty over these archipelagic waters, while ships of all other States would enjoy the right of passage through sea lanes designated by the archipelagic State.

4. Coastal States would have sovereign rights in a 200 mile exclusive economic zone with respect to natural resources and certain economic activities, and would also have certain types of jurisdiction over scientific research and environmental preservation. All other States would have freedom of navigation and overflight in the zone, as well as freedom to lay submarine cables and pipelines. Land-locked States and States with special geographical characteristics would have the right to participate in exploiting part of the zone's fisheries when the coastal State could not harvest them all itself. Delimitation of overlapping economic zones would be effected by agreement on the basis of international law... in order to achieve an equitable solution.

Highly migratory species of fish and marine mammals would be afforded special protection.

5. Coastal States would have sovereign rights over the continental shelf (the national area of the sea bed) for the purpose of exploring and exploiting it without affecting the legal status of the water or the air space above. The shelf would extend at least to 200 miles from shore, and out to 350 miles or even beyond under specified circumstances. Coastal States would share with the international community part of the revenue they derive from exploiting oil and other resources from any part of their shelf beyond 200 miles. Delimitation of overlapping shelves would be on the same basis as for the exclusive economic zone. A Commission on the Limits of the Continental Shelf would make recommendations to States on the shelf's outer boundaries.

6. All States would enjoy the traditional freedoms of navigation, overflight, scientific research and fishing on the high seas. They would be obliged to adopt, or co-operate with other States in adopting measures to manage and conserve living resources.

7. The territorial sea, exclusive economic zone and continental shelf of islands would be determined in accordance with rules applicable to land territory, but rocks which could not sustain human habitation or economic life would have no economic zone or continental shelf.

8. States bordering enclosed or semi-enclosed seas would be expected to co-operate on management of living resources and on environmental and research policies and activities. Land-locked States would have the right of access to and from the sea, and would enjoy freedom of transit through the territory of transit States by all means of transport.

9. States would be bound to use the best practical means at their disposal to prevent and control marine pollution from any source.

10. All marine scientific research in the exclusive economic zone and on the continental shelf would be subject to the consent of the coastal State, but those States would be obliged to grant consent to foreign States when their search was to be conducted for peaceful purposes and fulfilled other criteria laid down in the Convention. A coastal State could deny permission for such research or insist on its cessation, but only under circumstances defined in the Convention; in the event of a dispute, the researching State could require the coastal State to submit to international conciliation on the ground that it was not acting in a manner compatible with the Convention.

11. States would be bound to promote the development and transfer of marine technology on fair and reasonable terms and conditions. This would be done with proper regard for all legitimate interests, including the rights and duties of holders, suppliers and recipients of technology.

12. States would be obliged to settle by peaceful means their disputes over the interpretation or application of the Convention. When they could not agree on the means of settlement, they would have to submit most types of disputes to a compulsory procedure entailing decisions binding on all parties. They would have four options: an International Tribunal for the Law of the Sea, to be established under the Convention, the existing International Court of Justice, arbitration and special arbitration procedures. Certain types of disputes would have to be submitted to conciliation, a procedure whose outcome is not binding on the parties."

The Convention has controversial aspects as well. These include the issue of mining deep seabed mineral resources. At the insistence of developing nations and the Soviet Union, the International Seabed Authority (ISBA) was established. The ISBA could, through collaboration with other nations or private firms, sponsor oceanic mining projects. In fact, the ISBA could mine deep seabed resources on its own through an agency called the Enterprise, which is a thirty-six member Executive Council that sets the policy for ISBA. Regardless of which nation or firm conducts the mining efforts, the Enterprise is entitled to keep at least half of the mineral resources, which in turn could be distributed to developing nations. The ISBA may also demand the necessary technology from industrial nations in order to conduct mining efforts on its own.

At the close of the 1982 conference 119 countries signed the Convention. On 9 December, 1984, the Convention on the Law of the Sea closed for signatures, having a total of 159 signatory nations. As of 1 November 1988 only 35 nations have ratified the Convention. It will remain ineffective until 60 ratifications have been deposited. Non signatory nations have refused their consent for a variety of reasons. Among them are accusations that the treaty is merely an attempt by the third world nations to gain control of deep seabed mineral resources as well as objections to the method of representation on the Executive Council (one nation, one vote), and the regulations pertaining to deep seabed mining.

CURRENT ACTIVITY

At the Forty-third Session of the United Nations General Assembly the Law of the Sea remained a topic of discussion. The General Assembly passed resolution 43/18 which expressed the ongoing concern of the body with this still controversial topic. In addition, several specific issues were addressed in resolutions such as the use of the sea's resources and the need for further legal action on the issue. The United Nations General Assembly decided to include the topic in its provisional agenda for the Forty-fourth Session.

RESEARCH SUGGESTIONS

Resolutions:

1. 37/66 of 3 December 1982
2. 38/59 A of 14 December 1983
3. 39/73 of 13 December 1984
4. 40/63 of 10 December 1985
5. 41/34 of 5 November 1986
6. 42/20 of 18 November 1987
7. Resolution 2749 (XXV) of 17 December 1970
8. Third United Nations Conference on the Law of the Sea
9. Preparatory Commission for the International Sea-Bed Authority
10. International Tribunal for the Law of the Sea
11. The Preparatory Commission seventh regular session from 27 February to 23 March 1989, and summer 1989

Sources:

Boyd, Andrew, An Atlas of World Affairs, 7th ed. New York: Methuen, 1983.

Brown, E.D. et al., The UN Convention on the Law of the Sea: Impact and Implementation, Honolulu: Law of the Sea Institute, 1987.

Farnsworth, David N. International Relations: An Introduction, Chicago: Nelson-Hall, 1988.

Negroponte, John D., "Who Will Protect Freedom of the Seas?" Current Policy, No. 855, pp. 1-3. United States Department of State, Bureau of Public Affairs, Washington.

Osmanczyk, Edmund J., "The Encyclopidia of the United Nations and International Organizations, Philadelphia: Taylor Francis, 1985.

Pirages, Dennis, Global Ecopolitics: The New Context for International Relations, Mass: Duxbury Press, 1978.

Rourke, John T., International Politics on the World Stage, Dushkin Publishing Group, 1989.

Russett, Bruce, Starr, Harvey, Stoll, Richard J. Choices in World Politics: Sovereignty and Interdependence, New

York: W.H. Freeman & Co., 1989.

"Highlights of the Convention on the Law of the Sea," Unesco Courier, Feb. 1986.

UN Chronicle, February 1986, Vol. XXIII, #2.

43/18 "Law of the Sea," 1 November 1988.

The following is a chronology of the conferences on the Law of the Sea from 1958-1984:

1958- The First United Nations Conference on the Law of the Sea, which consisted of eighty-six states, met in Geneva and adopted four international conventions that covered the territorial sea, the high seas, the continental shelf, and fishing and conservation of living resources.

1960- The second United Nations Conference on the Law of the Sea failed to produce a substantive agreement on the limits of the territorial zone and fishing rights.

1967- The United Nations General Assembly decided that technological changes and other factors in the world would require the international community to address the matter of laws governing the seas beyond national jurisdiction. A 35-member ad hoc committee was established by the Assembly to study the matter.

1968- The ad hoc committee grew to 41 members and was renamed Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction.

1970- As a result of the Sea Bed Committee's work, the General Assembly adopted a Declaration of Principles Governing the Sea-Bed and Ocean Floor, and the Subsoil There of, beyond the Limits of National Jurisdiction. The Assembly also decides to convene the Third United Nations Conference on the Law of the Sea. The Sea Bed Committee was given the task of preparing for the Conference. Its membership had been enlarged to 91 members. By 1973 it released a six-volume report.

1973- The first session of the Conference was held in New York. The officers were elected and work began on the rules of procedure.

1974- The second session was held in Caracas, Venezuela.

The rules of procedure were adopted and 115 nations spoke in General Debate. The first attempts to deal with the alternate texts were made by the Sea Bed Committee.

1975- The third session was held in Geneva, Switzerland. A "single negotiating text" was produced by the Committe Chairmen.

1976- The fourth session was held in New York and the results of the negotiations were set out in a "revised single negotiating text." The fifth session was held during the same year in New York Progress was made in some areas, but questions concerning how deep sea mining should be organized and regulated went unanswered.

1977- The Sixth session remained in New York. Deliberations continued and only an "informal composite negotiating text" was produced.

1978- The seventh session began in Geneva and moved back to New York as did the following three sessions. Seven negotiation groups were created to tackle "hardcore" differences.

1979-During the eighth session, progress was made as compared to the stalemate of the two previous years and a revision of the 1977 negotiating text emerged. It was decided that work was to be completed by the Convention in 1980.

1980- The ninth session produced an "informal text" of the Draft Convention and plans were made to hold the final session in 1981.

1981- During the tenth session, the first official text of the Draft Convention was issued. Jamaica and the Federal Republic of Germany were chosen as seats for the International Sea-Bed Authority and the International Tribunal for the Law of the Sea. The United States cited difficulties in the sea-bed provisions that had been suggested. A "final decision making session" was set for 1982.

1982- The eleventh session remained in New York. The Conference voted on a number of amendments to the Draft Convention because all efforts at reaching a general agreement had been exhausted. At the request of the United States, there was a recorded vote. The Convention was adopted on 30 April by 130 votes with four against and 17 abstentions. A second part of the eleventh session was held that approved the Drafting Committee changes in the Convention and adopted a draft Final Act. Jamaica was selected as the site of the signing session.

1982- The Convention and Final Act were signed at Montego Bay, Jamaica by 119 delegations.

1983- A prepatory commission met in Kingston, Jamaica to begin work on the creation of the International Sea-Bed Authority and International Tribunal for the Law fo the Sea.

1984- The second session of the Preparatory Commission met again in Kingston, Jamaica to continue work on the agreement on the Law of the Sea.