The Constitution of the Sea: here’s what you need to know

The UNCLOS (United Nations Convention for the Law of the Sea) provides a legal framework for ensuring international cooperations in marine conservation and sustainable use.

Introduction

The UNCLOS (United Nations Convention for the Law of the Sea) provides a legal framework for ensuring international cooperations in marine conservation and sustainable use. It is the result of about 14 years of work, involving more than 150 countries and which ended with the signature during the United Nations conference held in Montego Bay, Jamaica, on 10 December 1982. Currently 164 states have signed the Convention.

The Convention is defined as UNCLOS III, as it is the third revision after UNCLOS I, signed in Geneva in 1958, following two years of negotiations. UNCLOS II always held in Geneva in 1960, but completed without any type of agreement. 

It constantly evolves because of the evolution of the Law of the Sea, which has exeriences a dynamic development (i.e. the change of interests and environment, new organizations, new actors including conservations group ., such as GreenPeace). 

History of the Law of the Sea

The Law of the Sea has changed slowly. For centuries there was the idea that the Ocean has free: free fishing, free navigation. From 1945 things changed because of the Truman Declaration, which claimed jurisdiction over natural resources of US continental shelf. However, it did not make claims infriging freedom of seas.

 The 1950s brought great changes. 

In 1958 we have the first and the second UNCLOS negotiations and therefore, conventions are established: 

  • Convention on the Territorial Sea and Contiguous Zone
  • Convention on the Continental Shelf
  • Convention on the High Seas
  • Convention on Fishing and Conservation of the Living Resources of the High Seas

However, just in the 70s there is a real change of the international legal framework of the Law of the Sea, with the UNCLOS III (1973-1982). Those were difficult years, not only because of the Cold War, but also because a lot of Developing Countries were asking for “New International Economic Order”. However, those are years caracterized by the will of establishing some king of control over the activities on the oceans. Indeed, countries like US had many interests to represent (main one: preserve freedom of seas and transit through straits). US has not ratified THE UNCLOS, however US consider UNCLOS as part of customary international law (example : Marine Scientific research. it will fall within the general category, which means that it is binding upon states in the international community)

What the UNCLOS does?

The 1982 United Nations Convention on the Law of the Sea (UNCLOS), also called “Constitution for the oceans”, has 168 parties, and sets out the legal framework within which all activities in the oceans and seas must be carried out. 

Article 192 UNCLOS means what the general obligation is: protecting the marine environment. In order to do so, one of the action required is make every effort to minimize to the fullest possible extent pollution caused by ocean dumping (Article 194 UNCLOS).However, the Constitution leaves a sort of open space for discussion. Art. 207-212: prevent pollution of marine environment; art. 210 and 211 state that National laws must be “no less effective” than global standards.

What is important to say about the UNCLOS? The UNCLOS itself sets up the jurisdiction provisions, the activities in and out of the oceans. Geografically these are the division we see: 

  • Internal waters
  • Territorial sea – 12 miles
  • Contiguous zone – 12 miles
  • Exclusive Economic Zone – 200 miles
  • Continental shelf – at least 200 miles
  • High seas
  • The Area

What’s the UNCLOS legal system? 

UNCLOS has a dual legal system, Paradigm I about individual State Interests and Paradigm II about common goods and interests.

The Paradigm I has as aim reconciling individual interests of States, which are the main actors. In the light of the International law of coexistence, States are aimed by the two principles of freedom and sovereignty for the division of oceans, reciprocity. 

However, because the current problems are so global, the Paradigm II is the one that is used the most. Indeed, it underlines the importance of the international cooperations between States and non-State actors, following the concept of the Unity of the ocean rather than the division of the oceans. The aim is the safeguard of common interests of international community as a whole, using institutional mechanism in order to achieve the international cooperation (and not sovereignty and freedom). For example, climate change as Common interest among countries: that’s an example of how the stakeholders cooperating take in consideration the interest of the international community as whole. Indeed,  they consider the impact of climate change for the benefits of no one particular country.

UNCLOS III deals with 25 different topics. So far, the main goal is to deal with the problem of increasing temperatures. According to the journalist Aylin Woodward, in 2020 “Earth’s oceans were the warmest they’ve been since scientists started keeping track in the 1950s”. This is causing the deoxygenation of the Ocean, which means that the ocean is basically suffocating itself and creatures are having a hard time leaving. Plus, the Ocean has absorbed almost one third of the carbondiaxed we have produced and the Ocean surface is almost 30% more acid than it was 150 years ago. The ocean acidification has an enormous impact on the ecosystem.

In other words, there are various human activity stressors (i.e. shipping, pollution, fishins) that create cumulative impacts on the ocean and the ecosystem. And the cooperation in order to avoid the degradation of the ocean (which is the main goal set by the Commission) is one of the most important examples to explain how there was the shift prom Paradigm I to Paradigm II.

Some of the issues UNCLOS faces: 

Unlike a lot of convention, where there is a separate secretariate (with its own staff and administartors) that carry out of all the duties of the convention, the LOS doesn’t have that. The duty is entrusted to the legal council office of the legal department of law and ocean at the UN.  It is administrated by the office in manhattan. 

Issues facing UNCLOS:

  1. Mapping: the Secretary-General is tasked with mapping all coastal State EEZ’s for those without money and funds to do so themselves. States cannot protect what they don’t know they have.
  2. State Policy Development: UN Legal Affairs works with Coastal States to develop policy and regulations that comport to UNCLOS. 
  3. Enforcement/Exploitation: many States do not have the means to police EEZ’s, nor the technology to utilize their resources

Main Issue:

After more than 10 years, UNCLOS has failed to address many of the management and EEZ issues it was designed to resolve. 

While UNCLOS has effectively codified many aspects of traditional law and has successfully incorporated several modern issues, such as environment, fisheries, and coastal zone management, these can be regarded as “nice to have” accomplishments but are by no means essential to the political, economic, or military security of the United States. In fact, one of the principal reasons for the establishment of UNCLOS III was to resolve U.S. conflicts with several Latin American states over territorial sea claims in the Pacific Ocean and the repeated seizure of U.S. tuna boats and their crews. After more than ten years of UNCLOS III, ten years of post-UNCLOS III ratification debate, and two more years of negotiation of the agreement, Nicaragua, Peru, Ecuador, and El Salvador still claim 200-mile territorial seas and refuse to become parties to the convention.

With regard to Nicaragua and Peru, their abstention could be due to their claim to the 200-mile territorial sea, which is not in conformity with the Convention.

The reasons for the absence or non-participation of these states are not clear. Only Turkey explained that it had some difficulties with certain provisions of the Convention. Ecuador and El Salvador may have chosen not to vote because of their claim to the 200-mile territorial sea. 

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