Report No. 151
5.15. The U.N. Convention of the Law of the Sea, 1982.-
On 10th December, 1982, the United Nations Convention on the Law of the Sea was signed by 117 countries and two other entities (the Cook Islands and the U.N. Council for Nambia) on the very first day of its opening for signature. This marked the culmination of over fourteen years of work involving participation by more than 150 countries representing all regions of the globe, all legal and political systems, all degrees of socio-economic development, countries with various dispositions regarding the kinds of minerals that can be found in the sea-bed, coastal states, states described as geographically disadvantaged with regard to ocean, space, archipelagic states, island and landlocked states.
The Convention, along with four related Resolutions, was adopted on 30th April, 1982. Only four States, namely, Israel, Turkey, U.S.A. and Venezula voted against the Convention. On December 10, 1982, the Convention was signed in a formal ceremony at Montego Bay, Jamaica. It came into force on the 10th December, 1983. The Convention was signed by 117 States and two other entities on the very first day. Lastly. Japan also signed the Convention.
Apart from the developing and socialist countries, Australia, Canada, Denmark, France, Finland. Ireland, the Netherlands. Norway and New Zealand who have signed the Convention so far, are the Federal Republic of Germany, Italy, Spain, Switzerland, the United Kingdom and the U.S.A. The elaboration of the convention represents an attempt to establish the universality in the effort to achieve a "just and equitable international economic order" governing ocean space.
The Convention is multi-faceted and represents a monument to international co-operation in the treaty-making process. The new law of the sea comprises all aspects of ocean space from delimitations to environmental control, technology and the settlement of disputes relating to ocean matters. The convention aims not only at the codification of customary norms, but also the progressive development of international law.
5.16. The Convention itself established a comprehensive framework for regulation of all ocean matters. The Convention contains 320 Articles and 9 Annexures. It is divided into seventeen parts and the first part deals with the question of areas of national jurisdiction. Rest of the Convention contains provisions governing various aspects of ocean matters including access to the seas, navigation, protection and preservation of the marine environment, exploitation of living resources and conservation, scientific research, sea-bed mining and other exploitation of non-living resources, and the settlement of disputes. In addition, the Convention establishes new international norms which may be summed up as under1:
1. Coastal States would exercise sovereignty over their territorial sea of up to 12 miles in breadth, but foreign vessels would be allowed innocent passage through those waters for purposes of peaceful navigation.
2. Ships and aircrafts of all countries would be allowed 'transit passage' through straits used for international navigation, as long as they proceeded without delay and without threatening the bordering states. States alongside the straits would be able to regulate navigation and other aspects of passage.
3. Coastal States would have sovereign rights in a 200 mile exclusive economic zone with respect to natural resources and certain economic activities, and would also have certain type of jurisdiction over marine science research and environmental protection, all other states would have freedom of navigation and oversight in the zone, as well as freedom to lay submarine cables and pipelines land-locked and geographically disadvantaged States would have the opportunity to participate in exploiting part of the zone's fisheries when coastal State could not harvest them all itself: the highly migratory species of fish and marine mammals would be accorded special protection.
4. Archipelagic States, made up of a group or groups of closely related islands and interconnecting waters would have sovereignty over a sea area enclosed by straight lines drawn between the outermost points of the islands all other States would enjoy the right of passage through sea lanes designated by the archipelagic States.
5. All States would enjoy the traditional free navigation, overflight, scientific research and fishing on the high seas; they would be obliged to adopt or co-operate with other States in adopting measures to manage and conserve living resources.
6. The territorial sea, exclusive economic zone and continental shelf of islands would be determined in accordance with rules applicable to land territory but rocks which could not sustain human habitation or economic life would have no economic zone or continental shelf.
7. Coastal States would have sovereign rights over the continental shelf (the national area of the sea-bed) for the purpose of exploring it up to 350 miles from the shore or even more under specified circumstances; coastal States would share with the international community part of the revenue, they would derive from exploiting oil and other resources from any part of their shelf beyond 200 miles, and Commission on the Limits of the Continental Shelf would make recommendation to States on the Shelf's other boundaries.
8. A parallel, system would be established for exploring and exploiting the international sea-bed area: all activities in the area would be under the control of the International Sea-Bed Authority to be established under the Convention.
9. Land-locked States would have the right of access to and from the sea and would enjoy freedom of transit through the territory of transit States.
10. States bordering enclosed or semi enclosed seas would be expected to co-operate on management of living resources and on environmental and research and policies and activities.
11. All marine scientific research in the exclusive economic zone and on the continental shelf would be subject to the consent of the coastal States, but coastal states would in most cases be obliged to grant consent to foreign states for conducting research for peaceful purposes.
12. States would be bound to prevent and control marine pollution from any source and would be liable for damage caused by violation of their international obligations to combat marine pollution.
13. States would be obliged to settle by peaceful means their disputes through reference to an International Tribunal for the Law of the Sea to be established under the Convention, to the International Court of Justice, or to Arbitration, Conciliation is also available and in certain circumstances submissions to it is compulsory.
14. States would be bound to promote the development and transfer of marine technology "on fair and reasonable terms and conditions" with proper regard for all legitimate interests, including the rights and duties of holders, suppliers and recipients of technology.
15. The paramount duty of all State parties is to respect the rights of others; however, some duties may entail more executory acts. The duty to give notice of hazards would be an example of the latter kind of duty. The omnipresent concept of the balance of rights and duties is emphasised by Article 300 of the Convention.
16. The Convention also sets out the principles and regulations governing the "Sea-Bed Authority".
1. Satish Chandra Some aspects of the New Constitution for the Ocean for the Ocean, Academy Law Review, Vol. 7 (1983), p. 194.
5.17. With the signing of the Convention on the Law of the Sea, a preparatory commission was established to pave the way for the two major institutions to he set up under the Convention, namely, the Sea-Bed Authority with headquarters in Jamaica and the International Tribunal for the Law of the Sea to be located in Hamburg, Federal Republic of Germany. These matters are still under study.
5.18. It is well known that in spite of the Convention, the ill effects of pollution of sea water is increasing. There is no doubt that the Convention opens a new era in history of international law. It is a successful attempt of objectivity in the search for solution to the problems. But technically the Convention does not reflect the new law of the sea which is binding on all States. Further, it is doubtful how far the international Sea-Bed Authority would be able to function effectively without the co-operation of technically advanced States. Various arguments and interpretations have been advanced by the law governing treaties in support of the Conventions.
But without the super powers, the Convention is bound to be weakened. In addition, the Convention fails to answer why the laws of the coastal states cannot be directly enforced within its contiguous zone, although the coastal states are in a better position to regulate the rational exploitation of the resources adjacent to their coasts. In fact, a major part of exclusive economic zone and of the continental shelf would fall within the national jurisdiction of the coastal states which will affect the traditional concept of "admiralty jurisdiction" too.