Third United Nations Conference on the Law
of the Sea
Key provisions of the Convention
The United Nations and the Convention
Links to the texts of the 1958
Geneva Conventions 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
A Historical Perspective
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navigation and a seemingly outdated, if not inherently conflicting,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
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.
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
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
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
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
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
Nations Conference on the Law of the Sea
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
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.
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.
United Nations Convention on the Law of the Sea - key provisions
Exclusive Economic Zone
Deep Seabed Mining
The Exploitation Regime
The Question of Universal Participation in the Convention
Protection of the
Marine Scientific Research
Settlement of Disputes
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
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
Before the Convention on the Law of the Sea could ađress 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 bẹ
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 ađition 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.
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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
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.
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.
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 C 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.
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.
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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
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.
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.
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.
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
have certain other obligations, including the adoption of measures to
prevent and limit pollution and to facilitate marine scientific research
in their EEZs.
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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
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.
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
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.
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 C about
30 States, including Argentina, Australia, Canada, India, Madagascar,
Mexico, Sri Lanka and France with respect to its overseas possessions C
by giving them the possibility of establishing a boundary going out to
350 miles from their shores or further, depending on certain geological
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.
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 C are to be equitably distributed
among States parties to the Convention through the International Seabed
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
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Deep Seabed Mining
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.
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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
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".
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.
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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.
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.
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
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
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.
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
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The Question of
Universal Participation in the Convention
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.
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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.
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.
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Protection of the
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
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.
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.
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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
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.
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
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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
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.
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.
Nations and the Law of the Sea
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.
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
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
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.
Originally prepared for the International Year of the