At a time when global tensions are running high and many international institutions seem powerless, one UN treaty stands out: the United Nations Convention on the Law of the Sea (UNCLOS) marked its 40th anniversary in 2022.
UNCLOS was adopted on 30 April 1982, and was an extraordinary feat of diplomacy. Singaporean diplomat Tommy Koh, president of the Third UN Conference on the Law of the Sea (1973-82), called it a ‘constitution for the oceans’ and UN secretary-general Javier Pérez de Cuéllar hailed it as ‘the most significant legal instrument of the 20th century’. Today, its success is clear: it has been ratified by 167 states plus the European Union; the few non-ratifiers include the US, Israel, Turkey, Iran, Syria, some Latin American countries and a few landlocked states.
The convention reflects the zeitgeist of the 1970s as decolonisation challenged an international order based on an East-West split. Developing countries — some newly independent when the Third Conference opened — wanted to use the gathering to campaign for a new international economic order. These countries secured the acceptance of the new concept of ‘exclusive economic zones’ (EEZs), which gave them jurisdiction and sovereign rights over waters extending up to 200 nautical miles (nm; 370km) from their coast.
UNCLOS enshrined the principle that the seabed of the area beyond the limits of national jurisdiction (referred to as the ‘Area’) was the ‘common heritage of mankind’. This Area, previously unregulated, would in future fall under the jurisdiction of the International Seabed Authority (ISA), established under UNCLOS, and developing countries would benefit most from the exploitation of its resources. The convention also recognised the claims of archipelagic states (Indonesia, the Philippines, Fiji) by introducing the concept of ‘archipelagic waters’, which have a similar legal status to the territorial waters of a coastal state (extending 12nm from the coast).
The convention confirms the customary law principle of freedom of navigation: a right to ‘innocent passage’ through territorial waters, and freedom of navigation on the high seas and through EEZs (though states can impose environmental rules within them). It also enshrines free passage through straits. This revolutionary compromise between industrialised countries, for which freedom of navigation is vital, and the developing countries behind the EEZ concept, proved advantageous to both parties and thus endured.
Some of the world’s greatest maritime powers (US, UK, Germany) had declined to ratify UNCLOS on the grounds that part XI gave too much power to the ISA and the ‘Enterprise’, the body responsible for managing the seabed and the exploitation of mineral resources in the Area, which they saw as going against the free market system. Their non-participation rendered UNCLOS ineffective on these issues, but in 1994 (after the breakup of the Soviet Union) an agreement was reached on the implementation of part XI that dealt with them specifically, making it possible for the convention to come into force, and for Germany and the UK to accede.
Tommy Koh called the convention a ‘constitution for the oceans' and UN secretary-general Javier Pérez de Cuéllar hailed it as ‘the most significant legal instrument of the 20th century'
UNCLOS showed its flexibility and adaptability again in 1995, with the adoption of an agreement on the ‘conservation and management of straddling fish stocks and highly migratory fish stocks’ (1). This agreement has enabled the creation of a network of regional fisheries management organisations covering the whole world.
An agreement on the conservation and sustainable use of ‘marine biodiversity of areas beyond national jurisdiction’, often known as BBNJ (biodiversity beyond national jurisdiction), is currently under negotiation and will also help in the implementation of UNCLOS.
Because large parts of UNCLOS have yet to beimplemented, there is still considerable potential for change, for instance in part XIV, concerning the development and transfer of marine technology and the work of the ISA, which is supposed to introduce new regulations, activities or institutions on an ad hoc basis. The establishment of the Enterprise (with a narrower purview than provided for in the original version of UNCLOS) should in theory ensure the effective management and exploitation of the seabed, and remains a key demand of developing countries.
UNCLOS often becomes vague or elliptical when dealing with national sovereignty, particularly how to delimit maritime spaces and legally define ‘islands’ and ‘rocks’. The Convention allocates huge EEZs to states, but doesn’t specify how conflicting claims should be reconciled. It does set out the principles for delimiting the territorial waters of two states with adjacent or opposite coasts (facing each other across a strait, for example), but requires states to choose their own method when it comes to EEZs and continental shelves. Its only stipulation is that the parties should reach an ‘equitable solution’.
Choosing a method was not easy. The equidistance or median line method won most support, as practical and often equitable, but it can be hard to apply in some cases, such as when a state has a concave coastline or lies on a gulf (so that the equidistance lines converge as they get further from the coast). As a result, the UNCLOS negotiators were unable to reach a consensus.
The creation of EEZs increased the number of cases in which zones under different countries’ jurisdictions overlapped. States were reluctant to resort to international courts such as the International Court of Justice (ICJ) or the International Tribunal for the Law of the Sea (ITLOS, established under UNCLOS and also responsible for maritime space delimitation) or to arbitration. However, the ICJ has gradually developed a preferred method based on equidistance but adaptable to circumstances, which limits uncertainty, so countries are now more willing to resort to arbitration. Even so, not all countries are prepared to abide by the ICJ’s decisions: Colombia rejected a 2012 judgment on its dispute with Nicaragua and in April last year the ICJ found that Colombia had violated Nicaragua’s sovereign rights and jurisdiction in its EEZ.
In the law of the sea, the distinction between islands and rocks is important, because islands can form the basis for claiming an EEZ of 200nm, while rocks can only havea territorial sea of 12nm. Yet UNCLOS article 121, the only one dealing with islands, lacks clarity. This is a real problem because states tend to class everything as an island so they can claim an EEZ around it. The ICJ has always avoided clarifying the distinction since there are so many different types of island.
The Philippines used this uncertainty to their advantage in a dispute with China in the South China Sea by demanding that an arbitration panel rule on the status of the contested ‘emergent land features’. At issue was whether they were islands (with an EEZ), rocks (with only territorial waters) or low-tide elevations (land submerged at high tide but exposed at low tide, which can be factored in when calculating the boundaries of territorial waters if they are less than 12nm from the mainland coast).
If these emergent features close to the Philippines coast were rocks, they would only have territorial waters of 12nm and so would fall inside the Philippines’ EEZ no matter which country had sovereignty over them. In July 2016 the arbitration panel ruled that they were not islands and published an exhaustive interpretation of article 121’s provisions on islands. Even so, divergent interpretations persist.
Part XII of UNCLOS states that countries have a general obligation to ‘protect and preserve the marine environment’. It sets out their rights and obligations in areas under their jurisdiction, making frequent reference to the competent international organisations — mainly the International Maritime Organisation (IMO), founded in 1948 and responsible for regulating shipping and the pollution it causes. The IMO sets rules concerning ‘particularly sensitive sea areas’ (as after the Erika oil tanker disaster in 1999). This allows states to impose regulations within their own EEZs that may restrict freedom of navigation (such as requiring oil tankers to be double-hulled). The Polar Code, which governs navigation in waters beyond 60° north and south, was also drawn up by the IMO.
Biodiversity only emerged as an international concern with the 1992 Earth Summit in Rio and the adoption of the Convention on Biological Diversity (CBD), completed in 2010 by the Nagoya protocol on access to genetic resources. In 2004 the UN set up an informal working group on the protection of marine biological resources. After a lengthy preparatory process, the 2017 General Assembly decided to hold an intergovernmental conference to draw up a binding agreement on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (BBNJ). However, the conference’s fifth session, held in New York last August, failed to achieve a consensus and was suspended, to be resumed at a later date.
The fact that the implementation of UNCLOS is still being pursued 40 years after its adoption (in a radically different geopolitical context from when it was drawn up) is something of a miracle given that the exercise of sovereign rights is the central issue. The EEZ concept has resulted in the largest geographical extension of states’ jurisdiction in history.Such zones now cover 40% of the world’s seas, and around 30 states have EEZs larger than a million square kilometres. In some cases, EEZs can go beyond 200nm: under the extended continental shelf mechanism (which concerns only the seabed and its subsoil) they can extend up to 350nm from the coast, or 100nm beyond the 2,500m isobath (2), if they satisfy certain geological criteria (see diagram).
To this end, UNCLOS has established the Commission on the Limits of the Continental Shelf (CLCS), which is responsible for monitoring compliance with geological criteria and making recommendations on continental shelfclaims beyond 200nm. Since UNCLOS did not deal with the technical aspects of filing continental shelf claims, the CLCS decided in 1999 to allow UNCLOS members ten years to submit them. But in 2009 the CLCS faced an avalanche of claims because states unable to collect all the necessary data before the ten-year deadline were allowed to submit preliminary information. To date, there have been 92 complete submissions and 48 preliminary information submissions. This level of demand has caused delays, and states can often wait ten years for claims to be processed. Russia’s 2001 claim in the Arctic is still pending, though further information to support it was submitted in 2015.
The large number of claims may give the impression of a claims race. Russia, Canada and Denmark have all submitted claims in the Arctic, relating to the underwater Lomonosov Ridge, on which the North Pole sits. The CLCS is not competent to delimit boundaries between states. Some states can agree between themselves how to divide up areas of a continental shelf that lie beyond their respective 200nm EEZs: Australia and New Zealand have agreed on the division of their shared continental shelf under the Tasman Sea, which covers several million square kilometres. Others prefer to wait for a CLCS ruling: in 2006 Spain, France, Ireland and the UK submitted a joint claim to an area of the continental shelf in the Celtic Sea and Bay of Biscay, on which the CLCS issued a recommendation.
Continental shelf extension claims can have different motives: political gain, prestige (in the case of the North Pole) or economic gain — though known exploitable resources are relatively small. A few countries (Portugal, Norway, Fiji) have polymetallic nodules (containing valuable ores including rare earth metals) on their continental shelf, but mining these could cause serious harm, and states have a responsibility to protect the environment (3). Hydrocarbon deposits at such distances from shore, and at such depths, are unusual; the only confirmed case is the Grand Banks of Newfoundland, where Canada recently approved approved Norwegian group Equinor’s Bay du Nord offshore oil project.
In 2015 the UN drew up 17 sustainable development goals (SDGs) for 2030. SDG 14 is to ‘conserve and sustainably use the oceans, seas and marine resources for sustainable development’, with a particular focus: ‘[to] conserve at least 10% of coastal and marine areas, consistent with national and international law and based on best available scientific information’. The EU’s biodiversity strategy calls for 30% of waters under the jurisdiction of member states to be covered by marine protected areas (MPAs) by 2030, of which 10% should be highly protected marine areas (HMPAs) (4).
Though UNCLOS allows states to take action in areas under their jurisdiction, and the IMO regulates pollution from ships wherever they may be, it is impossible to protect waters beyond EEZs by law, and at present, only a consensus between states makes it possible to protect the Area. Some coastal states have formed regional maritime commissions, but most of these don’t cover the high seas, and above all they do not generally claim the right to create MPAs in the high seas. For this reason, the BBNJ conservation and sustainable use agreement’s principal goal is the creation of high seas MPAs.
The Commission for the Conservation of Antarctic Marine Living Resources had hoped to establish a network of MPAs in the high seas around Antarctica by 2012, but has only been able to establish one to date (in the Ross Sea, 2016); all other proposed MPAs have been blocked by Russia and China. Only a consensus will make it possible to protect the high seas effectively, but the organisation that will be established at the conclusion of the BBNJ process will probably have to resort to a vote for the adoption of protection measures. Thus, the tensions created by the war in Ukraine are affecting the protection of the marine environment.