UNCLOS (Convention on Law of the Sea) III

By Daniel Hollis

Frustrated by the continuing inconsistency in the ocean governance regime, Malta’s ambassador to the United Nations, Arvid Pardo, called upon the General Assembly to take action and called for “an effective international regime over the seabed and the ocean floor,” that clearly defined national jurisdiction.[1] One month later, the General Assembly adopted resolution 2467 A (XXIII) and resolution 2750 C (XXV), which created the Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction and called for the convening of a third Law of the Sea meeting to be held in 1973.[2] The deliberations lasted for nine years, saw the participation of 160 nations, and concluded in 1982 with the United Nations Convention on the Law of the Sea, which is now commonly referred to as simply “UNCLOS” or the Law of the Sea Treaty.[3]

UNCLOS is one of the largest, and likely one of the most important, legal agreements in history. The treaty contains 320 articles and 9 annexes. It synthesizes and builds upon the agreements that were developed at the first conference (see UNCLOS I in this entry). The agreement addresses a myriad of issues including navigational rights of ships and aircraft, limits on the extension of national sovereignty over the oceans, environmental protection of the oceans, conservation of living resources and mining rights.

While UNCLOS was first signed in December of 1982, the agreement did not come into force until November of 1994, a period of nearly 12 years.[4] UNCLOS required 60 signatures for ratification and could only enter into force one year after the final nation had ratified or acceded to the treaty.[5] The main reason many nations took so long to sign the treaty is because of Article 309, which prohibits nations from taking out reservations to any part of a treaty. A reservation is a statement made by a nation when accepting a treaty, whereby it excludes or modifies the legal effect of certain provisions of a treaty as those terms apply to the nation accepting the treaty.[6] The inability of a nation to take out reservations to particular terms of the treaty caused many nations to hesitate. UNCLOS represented a significant number of compromises and some of the terms of the agreement did not sit well with various nations. However, in order to establish a unified doctrine of the law of the sea, UNCLOS necessarily had to prevent reservations or risk maintaining a fractured regime.

Divisions of Ocean Areas

One of the most powerful features of UNCLOS is that it settled the question of the extent of national sovereignty over the oceans and seabed. Parts II, V, VI, and VII establish the various regions of the oceans, who has sovereignty over each, and to what degree. The (linked entry) explain both how the maritime regions are divided and the sovereign powers that nations may exercise over each region.

Agencies Created by UNCLOS

In order to administer UNCLOS, the treaty created four bodies to handle specific issues. (This entry) discuss the mission of each body and its founding authority.

Environmental Considerations

Although UNCLOS is not an environmental treaty, it frequently addresses environmental concerns. In addition to having an entire section dedicated to the protection and preservation of the marine environment (Part XII), the treaty also contains numerous references to environmental duties and obligations throughout its many articles. The scattered placement of all of the environmental references makes it difficult at times to put together a comprehensive understanding of the duties of member nations and the powers they are granted to enforce the various provisions.

Section 1 of Part XII of UNCLOS sets the tone for a number of the environmental provisions laid out in the treaty. Part XII opens with Article 192: “States have an obligation to protect and preserve the marine environment.” This is immediately followed by Article 193: “States have the sovereign right to exploit their natural resources pursuant to their environmental policies,” Added. Nations are then subsequently charged with creating national law to address various pollution issues and are supposed to employ “the best practicable means at their disposal and in accordance with their capabilities.”[7] Article 204 requires states to observe and evaluate the risks posed by pollution to the marine environment. In particular, nations are required to monitor the effects of any activities that they permit or actually engage in.[8]

The following sections examine UNCLOS on various topical issues related to the environment in an attempt to create a comprehensive narrative.

Pollution Prevention (Generally)

Article 195 requires nations to “prevent, reduce and control pollution in the marine environment.” Article 195 also prohibits nations from transferring pollution to another nation, either directly or indirectly, or from turning one type of pollution into another. The prohibition on changing one pollutant into another may have impacts on future carbon mitigation schemes such as water-column carbon sequestration or sub-seabed sequestration. For more information, see Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (1972) and the 1996 Protocol.

Part XII of UNCLOS also encourages nations to participate in regional agreements related to the environment and establishes duties of nations to their regional counterparts (see Articles 197-201). Some of the duties that nations owe to other regional nations include the duty to notify of imminent danger to the marine environment from pollution or actual damage from pollution.[9] Nations are encouraged to work together to form regional plans for the preservation of the marine environment as well as to develop contingency plans for responding to pollution incidents and coordinating with one another in data-sharing on regional marine pollution and establishing scientific criteria for the promulgation of regulations regarding marine pollution.[10]

Dumping at Sea

Dumping is defined in Article 1 as “any deliberate disposal of wastes or other matter from vessels, aircraft, platforms or other man-made structures at sea” or the disposal of the vessels, aircraft, platforms, or structure themselves at sea.[11] UNCLOS makes an exemption for the disposal of wastes that are incidental to the normal operations of vessels, aircraft, etc.[12]

Article 210 specifically addresses the issue of dumping and requires nations to enact their own legislation on the issue. Paragraph 6 requires that national laws and regulations be at least as effective as global rules and standards. These global rules and standards are articulated in the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter , which was concluded in London in 1972, the year prior to the start of UNCLOS III.[13]

Coastal nations are recognized as the only authority that can approve any dumping activities within its territorial sea, its EEZ, or on its continental shelf. Nations are given the exclusive authority to authorize or deny such activities. Nations who authorize dumping activities are required to give consideration as to how other nations may be adversely affected by dumping activities in areas governed the local nation.[14]

There are three ways in which anti-dumping measures can be enforced. The first means of enforcement is by a coastal nation, which has the right to enforce anti-dumping measures within its territorial sea, its EEZ, or its continental shelf. The second means of enforcement is enforcement by Flag Nations, which may always enforce their own laws against any violator flying its flag regardless of where the offense occurred. The third and final means of enforcing anti-dumping measures is enforcement by a the third party, which would be a nation in which ships take on wastes within its territory. If multiple nations appear to have jurisdiction over an issue of dumping, only one is required to take on the individual case.[15]

Fishing Rights

Many of UNCLOS’s articles on fishing rights relate to who has the right to control and exploit various fish stocks. While these articles are not primarily environmental in nature, they do contain provisions on regulating overfishing, which is itself an environmental concern. The placement of these articles in Part V (governing the EEZ) and Part VII (governing the high seas) as opposed to Part XII (governing environmental protection) may be read as an indicator of the economic and territorial focus associated with protecting sovereign rights over fish stocks as opposed to an environmentally centered approach.

In the EEZ

Coastal nations have primary control over the fish stocks in their EEZ. As part of this primary control, the coastal nation is required to maintain the existing stock and protect it from over-exploitation. As a part of that responsibility, coastal nation get to determine the maximum allowable catch for a given species.[16] While coastal nation are required to monitor and maintain fish stocks within their EEZ, they are also required to provide for the maximum exploitation possible that will not threaten the population in question.[17] To that end, coastal nation are required to determine not only how much of a specific species can be caught, but how much the nation itself has the capacity to catch. In instances where the nation cannot catch the full maximum allowable catch, the coastal nation is obliged to give other nations access to the surplus.[18]

Fish, however, do not recognize manmade boundaries. In recognition of this fact, UNCLOS provides special rules for species that cross various types of boundaries. In instances where one species of fish migrate within the EEZ’s of multiple coastal nation, those nations are obligated to come to agreement on the conservation and development of such stocks.[19] Some species are considered “highly migratory” (see UNCLOS Annex I for a full list of highly migratory species). Nations engaged in fishing for these highly migratory species are required to cooperate with one another to maintain appropriate levels of these stock and to make sure that they are not overfished.[20]

Another consideration taken into account by UNCLOS are fish species that migrate between internal waters and marine waters as part of their breeding cycle. Anadromous species, those that spawn in fresh water and later migrate toward marine waters, are primarily the responsibility of the nation in whose rivers the fish originate.[21] The nation of origin is allowed to determine the allowable catch for these species.[22] For catadromous species, those that live in fresh water and migrate to marine waters to spawn, are again primarily the responsibility of the coastal nation.[23] Harvesting of these fish is limited to the EEZ. In cases in which the species travels through the EEZ of multiple countries, those countries must work together to establish rational management of the species.[24]

On the High Seas

All nations have the right to fish on the high seas subject to their treaty obligations.[25] Along with this right, nations have a duty to take measures to ensure the conservation of living resources on the high seas.[26] Nations who are fishing for the same species or different species within the same area of the high seas are supposed to work together to conserve and protect the species from over-exploitation.[27] In determining maximum allowable catch, nations are to take measures to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield and they are to take into consideration the effects on species either associated with or dependent on the harvested species.[28]

Marine Mammals

Coastal nations are allowed to pass laws more stringent than those for fishing regarding the harvesting of marine mammals.[29]

Biodiversity

Article 196 requires nations to “take all measures necessary” to prevent the intentional or accidental introduction of non-native species to a new part of the marine environment. Regarding the introduction of alien species the prohibition is on non-native animals that “may cause significant and harmful changes The local environment.”[30] It is hard, however, to know exactly what species will cause either significant or harmful changes to the environment. For more information see Alien Species and Aquatic Invasive Species.

Land Based Pollution

Article 207 requires nations to “adopt laws and regulations to prevent, reduce and control pollution of the marine environment from land-based sources….”[31] Article 207 specifically calls upon nations to regulate pollution that comes into the ocean from rivers, estuaries, pipelines, and outfall structures, which are the primary sources of land based pollution in the marine environment. Paragraph 3 of Article 207 also encourages nations to harmonize their policies on a regional level. This Article has, however, been criticized as being weak since it lacks and enforcement mechanism and it relies upon local legislatures to set their own priorities for land-based sources of pollution.[32] UNCLOS does address enforcement of land-based pollution measures in Article 213 by saying “States shall enforce their [own] laws and regulations adopted in accordance with Article 207….”[33]

Atmospheric Based Pollution

Article 212 requires nations to adopt laws and regulations to prevent atmospheric pollution that will result in pollution to the marine environment. Article 222 compels nations to enforce these measures once passed.

Pollution from Ships

Article 211 requires nations to pass laws and regulations governing pollution from ships flying the nation’s flag. Article 211 also allows nations to pass laws and regulations aimed at preventing and controlling pollution from ships that enter both their ports and their territorial seas. In both cases, the nation must notify the international community and the regulations cannot abridge the right of innocent passage.[34] Nations may also pass laws regulating pollution from ships in their EEZ, provided that the regulations conform to international rules and standards.[35] Under certain circumstances nations may be permitted to enact more stringent rules or regulations, provided that they can prove a need or special circumstance exists for which international rules and standards are not sufficient.[36]

Enforcement

Enforcement of the provisions of UNCLOS can be a complicated issue as multiple nations may appear to have jurisdiction over a single issue. What happens, for example, if a vessel flying the flag of one nation is accused of dumping in the territorial sea of another? What if the same ship was caught dumping on the high seas by a ship flying the flag of another nation? The following sections attempt to explain how various portions of the environmental provisions of UNCLOS are enforced and by whom.

Enforcement by the Flag Nation

Nations have vast powers of enforcement over vessels flying their flag. Flag nations are required to keep a register of ships which fly their flag and assume jurisdiction of those ships and crew under international law.[37] Flag nations are responsible for adopting laws and regulations targeted at preventing and controlling pollution from ships which fly their flag and are to provide for the effective enforcement of such laws, regardless of where a violation occurs.[38]

Flag nations are required, at the request of another nation, to investigate alleged violations committed by vessels flying their flag. If the nation believes that a violation has occurred, the nation has a duty to promptly institute proceedings in accordance with the its laws.[39] Flag nations are to notify the requesting nation and any relevant international organizations of any actions taken and their eventual outcome.[40]

Flag nations also have the ability to halt proceedings against one of its vessels on charges related to the prevention of pollution under Article 228, provided that:

the violation did not occur in the territorial sea of the nation instituting proceedings,
the flag nation takes over the proceedings within six months of the date the proceedings were begun,
the case is not one of major damage to the coastal nation, and
the flag nation does not have a history of repeatedly disregarding its obligations to enforce the applicable international rules regarding violations committed by its vessels.[41]

Flag nations are also obligated to make sure that ships flying their flag meet the requirements of seaworthiness.[42] In the event a ship enters the port of a foreign nation and it is found to not be in a seaworthy condition, the port nation is obliged to detain the vessel and require it to be repaired prior to its continuing its voyage.[43]

Enforcement by Port Nations

Port nations have the authority to enforce their own laws with regards to violations that occur in their territorial sea and EEZ, pursuant to Article 220(1). Customary law has for many years recognized the right of a port nation to exercise jurisdiction over a vessel that docks in its ports. Under customary international law, a nation does not have to grant access to its ports and, as such, when ships enter port they voluntarily submit themselves to the sovereignty of the port nation.[44]

Article 218 give port nations new authority with which they may investigate and, when sufficient evidence exists, prosecute violations of UNCLOS’s prohibitions against pollution.[45] If the violation occurs on the high seas, the port nation may undertake the investigation and initiate prosecution itself.[46] If the violation occurred in the territorial sea or internal waters of another nation, the port nation may only begin an investigation and/or prosecution at the request of either:

the nation in which the violation occurred;
the flag nation; or
a nation that has itself been damaged or threatened by the discharge violation.

In the event that the port nation is one that has been damaged or threatened by a discharge violation that has occurred outside its own territorial sea, it has the ability to initiate an investigation and prosecution itself.[47]

It is important to note that this ability is derived solely on the basis of treaty and not from customary international law.[48] Also, it is important to note that the flag nation may still take the prosecution for itself, per Article 228 as discussed above. In the event that the flag nation does take over the prosecution of such a violation, the port nation is obligated to drop the charges against the foreign vessel upon the conclusion of the proceedings by the flag nation.[49] Port nations that opt to impose penalties on foreign vessels must do so within three years from the date that the violation was committed.[50]

Port nations also have the right to stop vessels from proceeding from port if they are found to not meet the international rules and standards for seaworthiness and thereby threaten the marine environment. Nations may only allow the vessel to proceed to the nearest repair yard and, upon completion of all necessary repairs, must allow the ship to continue on its voyage.[51]

Enforcement by Coastal Nations (Not Acting as Port Nations)

The powers of a coastal nations to enforce various anti-pollution measures varies depending on the location of both the suspected violation and the location of the ship at the time the coastal nation chooses to act its suspicion. Read more about the Coastal Nations and the UNCLOS here.

General Provisions Regarding Enforcement

UNCLOS provides some general requirements regarding nations enforcing their laws or international law against ships from another nation. First, any enforcement measures taken against a foreign vessel can only be conducted by ships that are clearly marked and identifiable as being in the service of the enforcing nation’s government.[52] When engaging in enforcement activities, agents of the coastal nation have an obligation to not endanger the safety of navigation of other vessels and also to not bring any detained vessel to an unsafe port.[53] In the event that a nation takes action against a foreign vessel, the nation has a duty to inform the ship’s flag nation of what measures were taken.[54] With regard to the prevention of pollution, vessels owned and operated by a foreign nation on governmental non-commercial missions are protected by sovereign immunity, a principle that shields these vessels from liability.[55]

On the matter of assessing penalties against a foreign vessel, UNCLOS states that only monetary penalties may be imposed regarding violations committed by vessels outside the territorial sea of the coastal nation. In instances where a violation has occurred within the territorial sea, monetary penalties are the only type of penalties that may be imposed unless the vessel has committed an act of willful and serious pollution.[56] UNCLOS also provides that civil proceedings may be instituted against a vessel of a foreign nation regardless of what criminal proceedings have already taken place or what penalties have been assessed against the vessel.[57]

Scientific Explortation

All nations have the right to conduct scientific research in the oceans, provided that the research is 1) conducted exclusively for peaceful purposes; 2) conducted with acceptable scientific methods; 3) does not interfere with other legitimate uses of the sea; and 4) conducted with respect to the other terms of the UNCLOS treaty, including those pertaining to protection and preservation of the marine environment.[58] Coastal nations have the exclusive right to regulate, authorize, and conduct scientific research in their territorial sea, which means that scientific research within the territorial sea can only be conducted with the expressed consent of the nation.[59]

Foreign nations that wish to conduct scientific research in the EEZ or on the continental shelf of another nation may do so, but only with the consent of the other nation. Nations may reject a requests by a foreign nation for access to their EEZ or continental shelf if the project:

is of direct significance for the exploration and exploitation of natural resources (living or non-living, unless the research is to be conducted on the continental shelf more than 200 nautical miles from the baselines);
involves drilling into the continental shelf, the use of explosives, or the introduction of harmful substances into the marine environment;
involves the construction or use of artificial islands; or
if either the proposal provided to the nation regarding the research was inaccurate or if the requesting nation has outstanding obligations to the coastal nation for prior research projects.[60]

Foreign nations wishing to conduct scientific research off the coast of another nation must inform the coastal nation of the nature and objectives of the project, the methods to be used, the precise location where the research is to take place, the timeframe for the research, information regarding the organization conducting the actual research, and to what extent the coastal nation may take part in the project.[61] While undertaking scientific research off the coast of a nation, the research team from the visiting nation must guarantee the right of the coastal nation to participate or be represented in the research project without obligation to contribute to the costs of the project.

The visiting research team from the foreign nation is also obliged to provide the coastal nation with preliminary and final reports as well as access to all data and samples taken during the course of the project. Visiting research teams from foreign nations must also notify the coastal nation of any changes to the agreed upon plans for conducting the research and must also remove any and all equipment once the experiment is completed (unless another agreement has been made with the coastal nation regarding removal).[62]

Present Status and United States Interpretation

Presently there are 160 nations that have ratified UNCLOS. The United States, however, is not one of them. When the treaty was originally concluded in 1982, then President Ronald Reagan chose not to sign the treaty on the grounds that the proposed international seabed regime governing the mining of the seabed would both hamper the development of seabed mineral resources and would be contrary to principles of free enterprise.[63] Even though the President Reagan opted not to sign the treaty, in 1982 he issued an Ocean Policy Statement announcing that the United States both accepted and would act in accordance with the Convention on all issues save those of deep seabed mining.[64]

In the same proclamation, President Reagan created the EEZ for the United States.[65] In making that proclamation, the United States acquired the largest EEZ in the world, one that stretched off the United States mainland, Alaska, and Hawaii, as well as island territories in both the Atlantic and Pacific. In 1988, President Reagan acted again to expand the territorial se from 3 nautical miles to 12 nautical miles. The final change in the ocean boundaries of the United States occurred in 1999 when then President William (Bill) Clinton established the contiguous zone.[66]

Criticisms

While generally hailed as a monumental achievement in the arena of international law, UNCLOS has also received its fair share of criticism. One of the most often heard criticisms is the treaty’s reliance upon national legislation to implement its provisions. The problem becomes one in which the treaty must rely on national legislatures to set, for example, pollution provisions as a priority on the legislative agenda. While the benefit of such a scheme is that it allows the national autonomy, the weakness is that nations may not view such legislation as a priority. National administration of the law has also come under criticism, as some countries have shown a willingness to excuse violations that have happened abroad. One result of such weak national enforcement and regulation is the emergence of “flags of convenience” nations.[67]

Another criticism related to UNCLOS relates to the jurisdictional breakdown of sovereignty. The way in which control of ocean resources has been divided does not reflect the natural order of the marine environment. Provisions that govern ensuring that fish stocks are not over-depleted, for example, divide control and conservation measures based on distance from the shores as opposed to the natural order of the ecosystem. These divisions have been accused of hampering cohesive management of resources if favor of respecting national sovereignty.[68]

And then there is the criticism that kept the United States from signing UNCLOS, that of the deep seabed mining regime. As was already mentioned, the profit sharing provisions related to deep seabed mining have been hailed by some as being antithetical to principles of free-market capitalism.

Resources

Notes and References

United Nations, The United Nations Convention on the Law of the Sea (A Historical Perspective), available at un.org/Depts/los/convention_agreements/convention_historical_perspective.htm
United Nations, Diplomatic Conferences: United Nations Conference on the Law of the Sea, 1973-1982, available at untreaty.un.org/cod/diplomaticconferences/lawofthesea-1982/lawofthesea-1982.html.
Ibid.
18^ United Nations Convention on the Law of the Sea, December 10, 1982, 1833 U.N.T.S. 97 UNCLOS.
UNCLOS art 308.
Vienna Convention on the Law of Treaties, art 2(1)(d).
UNCLOS art 194.
UNCLOS art 204.
UNCLOS art 198.
UNCLOS art 199-201.
UNCLOS art 1(5)(a).
UNCLOS art 1(5)(b)(i).
International Maritime Organization, UNCLOS, available at https://www.imo.org/dynamic/mainframe.asp?topic_id=1514&doc_id=7602.
UNCLOS art 210(5).
UNCLOS art 216.
UNCLOS art 61.
UNCLOS art 62(1).
UNCLOS art 62(2).
UNCLOS art 63.
UNCLOS art 64.
UNCLOS art 66; National Oceanic and Atmospheric Administration, NEFSC Fish FAQ, available at https://www.nefsc.noaa.gov/faq/fishfaq1a.html.
UNCLOS art 66.
UNCLOS art 67; National Oceanic and Atmospheric Administration, NEFSC Fish FAQ, available at nefsc.noaa.gov/faq/fishfaq1a.html
UNCLOS art 67.
UNCLOS art 116.
UNCLOS art 117.
UNCLOS art 118.
UNCLOS art 119.
UNCLOS art 65.
UNCLOS art 196.
UNCLOS art 207.
Matthew Schroeder, Forgotten at Sea – An International Call to Combat Islands of Plastic Waste in the Pacific Ocean, 16 Sw. J. Int’l L. 265, 275-276 (2010).
UNCLOS art 213.
UNCLOS art 211 (3-4).
UNCLOS art 211(5).
UNCLOS art 211(6).
UNCLOS art 94.
UNCLOS art 217(1).
UNCLOS art 217(6).
UNCLOS art 217(6).
UNCLOS art 228.
UNCLOS art 94.
UNCLOS art 219.
Ho-Sam Bang, Port State Jurisdiction and Article 218 of the UN Convention on the Law of the Sea, 40 J. Mar. L. & Com. 291, 295 (2009).
UNCLOS art 218(1).
Ho-Sam Bang, 295.
UNCLOS art 218(2-3); Ho-Sam Bang, 297.
Ho-Sam Bang, 295.
UNCLOS art 228(1).
UNCLOS art 228(2).
UNCLOS art 219.
UNCLOS art 224.
UNCLOS art 225.
UNCLOS art 231.
UNCLOS art 236.
UNCLOS art 230.
UNCLOS art 229.
UNCLOS art 238, 240.
UNCLOS art 245.
UNCLOS art 246.
UNCLOS art 248.
UNCLOS art 249.
Richard B. Bilder, A Legal Regime for the Mining of Helium-3 on the Moon: US Policy Options, 33 Fordham Int’l L.J. 243, 263 (2010).
Parker Clote, Implication of Global Warming on State Sovereignty and Arctic Resources Under the United Nations Convention on the Law of the Sea: How the Arctic is no Longer Communis Omnium Naturali Jure, 8 Rich. J. Global L. & Bus. 195, 239 (2008).
Mary Turnipseed et al., The Silver Anniversary of the United States’ Exclusive Economic Zone: Twent-five Years of Ocean Use and Abuse, and the Possibility of a Blue Water Public Trust Doctrine, 36 Ecology L.Q. 1, 25 (2009).
Ibid, 30.
Ho-Sam Bang, Port State Jurisdiction and Article 218 of the UN Convention on the Law of the Sea, 40 J. Mar. L. & Com. 291 (2009).
John Charles Kunich, Losing Nemo: The Mass Extinction Now Threatening the World’s Ocean Hotspots, 30 Colum. J. Envtl. L. 1, 45 (2005).

UNCLOS III