This article has been reviewed by the following Topic Editor: Dawn Wright
2.2
UNCLOS II
3
UNCLOS III
3.1
Divisions of Ocean Areas
3.1.1
Baselines
3.3.8
Pollution from Ships
Since humanity first set forth upon the seas, the issue of sovereign control over the oceans has been an ongoing concern. Prior to the 20th century, the oceans had been subject to the freedom of the seas doctrine. This principle, adopted in the 17th century, limited national rights and jurisdiction over a narrow band of water along a nations coast, the rest of the sea being free to all and belonging to none. Nearly a century later, the "cannon-shot" rule became the basis for determining how much of the adjacent oceans were under the jurisdiction of a nation. The cannon-shot rule set forth that a nation controlled a territorial sea as far as a projectile could be fired from a cannon based on shore. In the 18th century this range was approximate three nautical miles. As time progressed, three miles became the widely accepted range for the territorial sea.[1]
Due to the slow pace of technological developments prior to the Industrial Revolution, these simple rules provided effective governance of the world's oceans. With the technological developments of the mid-19th and early-20th centuries, however, not only did ships become more powerful, but technology allowed humanity to exploit ocean resources that had never before been envisioned. Fishermen, once limited to areas near their own coasts, were now equipped with vessels that could allow them to stay at sea for months at a time and capture fish harvests that were far from their native waters. Virtually unrestrained, fleets from around the world traveled to areas rich in fish-stocks. The lack of restraint on the part of these fishermen resulted in fish stocks around the world being depleted without regard to the stability of their numbers.[2]
Evolving technology also allowed for the exploitation of previously inaccessible off-shore resources, most notably oil (but also diamonds, gravel, and precious metals). To illustrate the rapidity of these developments, in 1947 off-shore oil production in the Gulf of Mexico was still less than 1 million tons. By 1954, production had grown close to 400 million tons.[3] As a matter of perspective, just in the Gulf of Mexico, the United States alone currently produces 218,192 tons daily, for a total of 79.6 million tons annually, reflecting a steadily decreasing trend that began in the 1970's.[4]
In order to protect local resources, be they biological or mineral, nations began expanding their claims of sovereignty beyond the traditional 3 mile limit. The first nation to challenge the long-standing freedom of the seas doctrine was the United States. On September 28, 1945, President Harry S. Truman signed what has become commonly known as the Truman Proclamation. The proclamation set a claim of sovereignty by the United States to the outer continental shelf (OCS) and the resources therein as well as establishing the right of the U.S. to establish conservations zones "in areas of the high seas contiguous to the coasts of the United States."[5] While recognizing some limited sovereignty over an expanded region of the sea, the proclamation was careful to stipulate that the new US policy did not affect "the right [of] free and unimpeded navigation."[6]
After the United States expanded its claim, it was not long before other nations followed suit. By 1950, Argentina was actively claiming its continental shelf as well as the water column above it, Ecuador, Chile, and Peru were asserting rights over a 200-mile zone in order to protect its biological resources from foreign fleets, and a spate of Arab and Eastern European nations were laying claim to a 12-mile territorial sea. There was a growing understanding, however, that such a fractured regime could not continue.[7]
Recognizing the conflicts that were resulting from the current regime, the General Assembly adopted resolution 1105 (XI), which called for the convening of the United Nations Convention on the Law of the Sea in Geneva in 1858. Eighty-six nations participated (now commonly referred to as UNCLOS I). The meeting produced four separate conventions [8]: 1) the Convention on the Territorial Sea and the Contiguous Zone (established sovereignty rights and rights of passage through the territorial sea, established the Contiguous Zone to extend 12 nautical miles from the baselines, but failed to set standards of limits on the territorial sea);[9] 2) the Convention on the High Seas (established access for landlocked nations, expounded on the concept of "flag state," outlawed the transport of slaves, covered piracy, established safety and rescue protocols, established a national duty to prevent pollution, and established rights to laying of undersea cables and pipelines);[10] 3) the Convention on Fishing and Conservation of the Living Resources of the High Seas (established the right of coastal nations to protect living ocean resources, required nations whose fleets leave their territorial sea to establish conservation measures, and established measures for dispute resolution);[11] 4) and the Convention on the Continental Shelf (established the regime governing the superjacent waters and airspace, the laying and maintenance of submarine cables or pipelines, the regime governing navigation, fishing, scientific research and the coastal nation's competence in these areas, delimitation, and tunneling).[12] The Convention also produced an Optional Protocol of Signature Concerning the Compulsory Settlement of Disputes (provides for the compulsory jurisdiction of the International Court of Justice, or for submission of the dispute to arbitration or conciliation).[13] While UNCLOS I saw a significant development in the international legal regime governing the oceans, there were still many issues left unsettled.
In an attempt to deal with the issues that remained unresolved after UNCLOS I, the General Assembly called for a second United Nations Convention on the Law of the Sea (now commonly referred to as UNCLOS II). The parties met for just over a month in early 1960 with the objective of settling the question on the breadth of the territorial seas and fishery limits. While the conference adopted two resolutions, the parties were unable to come to consensus on the issues at hand.[14]
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.[15] 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.[16] 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.[17] 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 above). 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.[18] 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.[19] 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.[20] 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.
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 following sections explain both how the maritime regions are divided and the sovereign powers that nations may exercise over each region.
Diagram of the various regions of the ocean over which a State may exercise sovereignty.
Internal waters are those that are contained on the landward side of the baseline.[22] These waters fall under the exclusive sovereignty of the nation in which they are contained.
Article 3 of UNCLOS declares that a nation may establish a territorial sea that extends up to 12 nautical miles from the baselines. Within the territorial sea, a nation has exclusive sovereignty over the water, seabed, and airspace.[23] The treaty establishes that all nations have the right of innocent passage through the territorial sea of another nation and that, outside certain conditions, the nation laying claim to the territorial sea cannot hamper innocent passage of a foreign vessel.[24] UNCLOS adopted the basic concepts of the territorial sea and the right of innocent passage that had been codified in the Convention on the Territorial Sea and the Contiguous Zone, but the new treaty went a step further by establishing the limits of a nation's territorial sea.
By the late 1960's many nations recognized a 12-mile limit to the territorial sea. At the start of the UNCLOS, only twenty-five nations maintained the traditional claim of 3 nautical miles. Sixty-six nations were claiming 12 nautical miles, fifteen nations claimed between 4 and 10 nautical miles, and eight nations were claiming an astounding 200 nautical miles. Smaller nations, including those without large navies or merchant fleets, favored a larger territorial sea in order to protect their coastal waters from infringements by more powerful nations. The world's major naval and maritime powers, however, pressed for the 3-mile rule because the 12-mile rule would have placed over 100 straits used for international navigation under the exclusive sovereignty of other nations. Some of these included the Strait of Gibraltar (the only open access to the Mediterranean), the Strait of Hormuz (the only passage to the oil-producing Persian Gulf and Gulf of Oman nations), and the Strait of Malacca (the main route connecting the Pacific and Indian Oceans).[25]
Remembering that the Cold War was still ongoing during the Convention, smaller nations were particularly concerned about the possibility of threats to their national security posed by warships of foreign nations or even the possibility of becoming embroiled in the conflicts of foreign powers. In an attempted compromise, the small nations offered the larger maritime powers the right of innocent passage, however the maritime powers were not satisfied with this offer. The problem, in the view of the great powers, was that restrictions to innocent passage would prohibit covert movements of vessels (such as submarines) and did not guarantee overflight rights, thereby creating a security risk.[26]
In the end, the parties came together to form a compromise known as "transit passage." Applied specifically to straits that would otherwise fall within the territorial sea of a nation, transit passage applies to straits used for international navigation between one part of the high seas to another and allows for "navigation and overflight solely for the purpose of continuous and expeditious transit of [a] strait...."[27] In all other ways aside transit passage, the waters of a strait still remain the territorial sea of the adjacent nation.[28]
The Contiguous Zone is a region of the seas measured from the baseline to a distance of 24 nautical miles. Within this region, a nation may exercise the control necessary to prevent the infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea, and punish infringement of those laws and regulations committed within its territory or territorial sea.[29]
The Exclusive Economic Zone or "EEZ" is a region that stretches a distance of no more than 200 nautical miles from a nation's baselines.[30] Generally, the rules regarding the High Seas, set forth in Articles 88 to 115, apply to the EEZ.[31] Within its EEZ, a nation may explore at exploit the natural resources (both living and inanimate) found both in the water and on the seabed, may utilize the natural resources of the area for the production of energy (including wind and wave/current), may establish artificial islands, conduct marine scientific research, pass laws for the preservation and protection of the marine environment, and regulate fishing.[32]
One of the primary purposes behind establishing the EEZ was to clarify the rights of individual nations to control the fish harvests off their shores. The 200-mile limit established by UNCLOS is not an arbitrary number. It is derived from the fact that the most lucrative fishing grounds lie within 200 nautical miles from the coast as this is where the richest phytoplankton (the basic food of fish) pastures lie.[33]
The creation of the EEZ gave coastal nations jurisdiction of approximately 38 million square nautical miles of ocean space. The world's EEZs are estimated to contain about 87% of all of the known and estimated hydrocarbon reserves as well as almost all offshore mineral resources. In addition, the EEZs contain almost 99% of the world's fisheries, which allows nations to work to conserve the oceans vital and limited living resources.[34]
Cross sectional map of a continental shelf.
When UNCLOS refers to the continental shelf, however, it is using "continental shelf" as a legal term.[36] While the EEZ captures a lot of the continental shelf for many countries, it does not capture all of it. As such, UNCLOS includes provisions for nations to lay claim to a continental shelf that exceeds 200 nautical miles from the baseline by establishing the foot of the continental slope as set forth in Article 76, paragraphs 4-7. These provisions allow for an extension of an additional 150 nautical miles from the baseline or 100 miles from the 2,500 meter depth.[37] Nations exercise over the shelf the sovereign right to explore and exploit the non-living natural resources of the continental shelf as well as the living organisms that live on the seabed itself.[38] The water above the portion of the continental shelf that is not contained within the EEZ remains part of the high seas (as does the airspace above that area).[39] Nations wishing to request an extension of sovereignty over an extended portion of their naturally occurring continental shelf must do so within 10 years of UNCLOS coming into force for that particular nation.[40]
The extension of sovereignty to the extended continental shelf comes with a price. A nation that exploits resources on the continental shelf beyond the 200 nautical mile mark is allowed five years in which to develop and exploit the resources of the shelf without charge. Starting on the sixth year, a nation has to pay 1 percent of the value of the resources produced from the site. The rate of payments increase by 1 percent for each year until the twelfth year and is capped at 7 percent thereafter. Developing nations are exempted from this provision.[41] Revenues generated from these operations are deposited with the International Seabed Authority and equally distributed among national parties to UNCLOS.[42]
Map
illustrating the high seas. All areas in blue are considered part of
the high seas and are not subject to national appropriation.
The "Area" is the seabed and ocean floor that is beyond the limits of national jurisdiction.[48] This is the portion of the seabed that is beyond the EEZ or the recognized continental shelf of a country. It would be inaccurate to say that the Area is the seabed underneath the high seas, since the high seas can overlap portions of continental shelf that are subject to national sovereignty. The Area is particularly unique in that UNCLOS designates it and the resources it contains as "the common heritage of mankind."[49] No nation is allowed to lay claim to any part of the Area or its resources. Regarding the resources, "[a]ll rights in the resources of the Area are vested in mankind as a whole...."[50] As a result, companies that wish to exploit the mineral resources of the Area will have to enter into a profit sharing agreement in which the profits derived from mineral resources captured in the Area will be shared with developing nations.
In order to administer UNCLOS, the treaty created four bodies to handle specific issues. The following sections discuss the mission of each body and its founding authority.
The Commission on the Limits of the Continental Shelf was created to implement Article 76 of the treaty, which is the article which allows for a nation to extend sovereignty over a portion of the continental shelf beyond the limits of the EEZ.[51] The Commission is comprised of 21 members who are specialists in the fields of geology, geophysics, or hydrography and are elected by the Nations Parties to the Convention. Members of the Commission are charged with evaluating data submitted by coastal nation requesting an extension of sovereignty over an extended portion of their naturally occurring continental shelf.[52] The Commission was established and derives its authority from Annex II of the Convention.
Logo for the International Seabed Authority, 'the Authority'
The Assembly acts as a legislative organ in which each member nation has one representative.[57] Of the many powers and responsibilities entrusted to the Assembly, one of the most important is the power to decide how revenues derived from deep seabed mining will be distributed. Other powers include the power to set policy regarding activities in the Area and oversight of its management.[58]
The Council is a body comprised of 36 persons who represent various members of the Authority itself (the nations bound by the treaty). Members of the Council are elected by the Assembly and serve for a term of four years.[59] The Council acts as the executive branch of the Authority and has the power of establishing the specific policies to be pursued by the Authority.[60] Other powers of the Council include establishing subsidiary agencies (as needed) to carry out the functions of the Council, approve or reject work plans related to the Area, oversee the collection of payments made to the Authority, and institute proceedings against a member nation in the Seabed Disputes Chamber (see International Tribunal for the Law of the Sea below).[61]
Within the Council there are two Commissions: the Economic Planning Commission and the Legal and Technical Commission. Each Commission is comprised of members elected by the Council from a list of candidates nominated by the nations that are bound by UNCLOS. Members of either Commission serve for a term of five years and must have no personal financial connections related to exploration or exploitation of resources within the Area.[62]
Members of the Economic Planning Commission are required to have qualifications in the areas of mining, management of mineral resources, international trade, or international economics and it is required that at least two members of the Commission are from developing nations whose mineral exports be the same as those being mined from the seabed.[63] The primary function of the Economic Planning Commission is to expound upon the relationship between the minerals being mined, the effect mining has on global prices for the mineral in question, and the effect changes in price may have on developing nations.[64]
Members of the Legal and Technical Commission are required to have qualifications in the areas of exploration, exploitation, and processing of mineral resources, oceanology, protection of the marine environment, or either economic or legal matters relating to the ocean mining industry.[65] It is the responsibility of the Commission to review written plans for work activities to be conducted in the Area, prepare assessments of the environmental implications of activities in the Area, make recommendations to the Council regarding environmental protection of the Area, and to calculate the production ceiling and issue production authorization on behalf of the Authority.[66]
The Secretariat of the Authority is comprised of the Secretary-General and his or her staff. The Secretary General is elected for a term of four years. Nominations for Secretary-General are made by the Council and voted on by the Assembly. The Secretary-General serves as the chief administrative officer of the Authority and is required to make an annual report to the Assembly on the work of the Authority.[67]
Article 170 calls for the formation of an agency called "the Enterprise." The purpose of the Enterprise is to coordinate the exploration and exploitation of resources in the area. Annex IV of the treaty details the composition and governance of the Enterprise, however, since deep seabed mining has yet to start, the Enterprise has never been called into action.
Annex VI of UNCLOS establishes the International Tribunal for the Law of the Sea. The Tribunal is comprised of 21 members, no two of which may be from the same member nation.[68] Members of the Tribunal serve for a period of nine years, after which they are eligible for reelection to the Tribunal.[69] The Tribunal has formed a number of Chambers including the Chamber of Summary Procedure, the Chamber for Fisheries Disputed, the Chamber for Marine Environment Disputes, and the Chamber for Maritime Delimitation Disputes.[70] The Tribunal is also the home of the Seabed Disputes Chamber, which is responsible for adjudicating disputes pursuant to Part XI, Section 5 of UNCLOS, which governs settlements of disputes that arise from deep seabed activities.[71]
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," [emphasis 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."[72] 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.[73]
The following sections examine UNCLOS on various topical issues related to the environment in an attempt to create a comprehensive narrative.
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.[74] 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.[75]
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.[76] UNCLOS makes an exemption for the disposal of wastes that are incidental to the normal operations of vessels, aircraft, etc.[77]
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.[78]
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.[79]
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.[80]
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.
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.[81] 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.[82] 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.[83]
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.[84] 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.[85]
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.[86] The nation of origin is allowed to determine the allowable catch for these species.[87] 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.[88] 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.[89]
All nations have the right to fish on the high seas subject to their treaty obligations.[90] Along with this right, nations have a duty to take measures to ensure the conservation of living resources on the high seas.[91] 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.[92] 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.[93]
Coastal nations are allowed to pass laws more stringent than those for fishing regarding the harvesting of marine mammals.[94]
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 [to the local environment]."[95] 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.
Article 207 requires nations to "adopt laws and regulations to prevent, reduce and control pollution of the marine environment from land-based sources...."[96] 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.[97] 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...."[98]
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.
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.[99] Nations may also pass laws regulating pollution from ships in their EEZ, provided that the regulations conform to international rules and standards.[100] 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.[101]
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.
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.[102] 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.[103]
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.[104] Flag nations are to notify the requesting nation and any relevant international organizations of any actions taken and their eventual outcome.[105]
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: 1) the violation did not occur in the territorial sea of the nation instituting proceedings, 2) the flag nation takes over the proceedings within six months of the date the proceedings were begun, 3) the case is not one of major damage to the coastal nation, and 4) 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.[106]
Flag nations are also obligated to make sure that ships flying their flag meet the requirements of seaworthiness.[107] 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.[108]
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.[109]
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.[110] If the violation occurs on the high seas, the port nation may undertake the investigation and initiate prosecution itself.[111] 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: 1) the nation in which the violation occurred; 2) the flag nation; or 3) 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.[112]
It is important to note that this ability is derived solely on the basis of treaty and not from customary international law.[113] 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.[114] Port nations that opt to impose penalties on foreign vessels must do so within three years from the date that the violation was committed.[115]
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.[116]
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. In cases where ships are currently navigating in the territorial sea of a coastal nation and it is suspected that a violation of either international anti-pollution laws or the coastal nation's laws has occurred while the vessel was navigating through the territorial sea, the coastal nation has the authority to undertake a physical inspection of the vessel and may institute proceedings against it. Note that there are a few criteria that must be met. First, the ship must have committed the violation in the territorial sea of the coastal nation and secondly, the ship must still be in the territorial sea of the coastal nation. Only then can agents of the coastal nation undertake an investigation of the ship.[117]
For suspected violations that occur in the EEZ of the coastal nation, the power and authority of that nation is not as broad. In cases where a suspected violation has occurred in the EEZ and the vessel is still in either the territorial sea or the EEZ, the coastal nation is permitted to request information regarding the ship (specifically its identity, port of registry, its last and next port of call, and other information the coastal nation deems necessary to establish whether or not a violation has occurred).[118] Should the ship be unwilling to supply that information, or if the information supplied is clearly false, only then can the coastal nation undertake a physical investigation of the vessel.[119] Here the requirements are that the suspected violation occurs in the EEZ, the vessel in question must still be in either the territorial sea or the EEZ, a request must be issues for information, and only after a failure of the ship to comply with the request of the coastal nation may that nation undertake a physical investigation of the ship.
The preceding paragraphs only cover suspected violations. If, however, there is "clear objective evidence" that a vessel currently navigating in a costal nation's territorial sea or EEZ has committed a violation in the EEZ "resulting in a discharge causing major damage or [the] threat of major damage to the coastline or related interests of the coastal State, ... that State may... institute proceedings, including detention of the vessel."[120] In order for the coastal nation to take such measures, there has to be clear evidence of the violation occurring, the violation must result in major damage to the coastline or the interests and resources of the nation or the threat of major damage, and the vessel must still be within the territorial sea or the EEZ.
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.[121] 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.[122] 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.[123] 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.[124]
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.[125] 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.[126]
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.[127] 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.[128]
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: 1) 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); 2) involves drilling into the continental shelf, the use of explosives, or the introduction of harmful substances into the marine environment; 3) involves the construction or use of artificial islands; or 4) 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.[129]
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.[130] 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).[131]
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.[132] 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.[133] In the same proclamation, President Reagan created the EEZ for the United States.[134] 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.[135]
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.[136]
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.[137]
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.
Content Source: Wikimedia Commons
1^ United Nations, The United Nations Convention on the Law of the Sea (A Historical Perspective), available at http://www.un.org/Depts/los/convention_agreements/convention_historical_perspective.htm (accessed 9 June 2010).
2^ Ibid.
3^ Ibid.
4^ United States Energy Information Administration, Gulf of Mexico Fact Sheet, available at http://www.eia.doe.gov/oog/special/gulf/gulf_fact_sheet.html (accessed 10 June 2010); United States Energy Information Administration, Energy Calculators, available at http://www.eia.doe.gov/kids/energy.cfm?page=about_energy_conversion_calculator-basics (accessed 10 June 2010); United States Energy Information Administration, Crude Oil Production, available at http://www.eia.doe.gov/neic/infosheets/crudeproduction.html (accessed 10 June 2010). Note: Due to differences in density in various types of oil, the actual volume of a ton of oil can be different from barrel to barrel. As such, the numbers provided are best guess estimates based on the information available and should not be viewed as exact.
5^ President Harry S. Truman, President Truman's Proclamations on U.S. Policy Concerning Natural Resources of Sea Bed and Fisheries on High Seas, available at http://www.ibiblio.org/pha/policy/1945/450928a.html (accessed 10 June 2010).
6^ Ibid.
7^ United Nations, The United Nations Convention on the Law of the Sea (A Historical Perspective), available at http://www.un.org/Depts/los/convention_agreements/convention_historical_perspective.htm (accessed 9 June 2010).
8^ United Nations, Diplomatic Conferences: United Nations Conference on the Law of the Sea, 1958, available at (http://untreaty.un.org/cod/diplomaticconferences/lawofthesea-1958/lawofthesea-1958.html (accessed 10 June 2010).
9^ Convention on the Territorial Sea and the Contiguous Zone, 29 April 1958, 516 U.N.T.S. 205. (available at http://untreaty.un.org/ilc/texts/instruments/english/conventions/8_1_1958_territorial_sea.pdf)
10^ Convention on the High Seas, 29 April 1958, 450 U.N.T.S. 11 (available at http://untreaty.un.org/ilc/texts/instruments/english/conventions/8_1_1958_high_seas.pdf).
11^ Convention on Fishing and Conservation of the Living Resources of the High Seas, 29 April 1958, 559 U.N.T.S. 285 (available at http://untreaty.un.org/ilc/texts/instruments/english/conventions/8_1_1958_fishing.pdf).
12^ Convention on the Continental Shelf, 29 April 1958, 499 U.N.T.S. 311 (available at http://untreaty.un.org/ilc/texts/instruments/english/conventions/8_1_1958_continental_shelf.pdf).
13^ United Nations, Diplomatic Conferences: United Nations Conference on the Law of the Sea, 1958, available at (http://untreaty.un.org/cod/diplomaticconferences/lawofthesea-1958/lawofthesea-1958.html (accessed 10 June 2010); International Law Commission, Law of the Sea: Regime of the Territorial Sea, available at http://untreaty.un.org/ilc/summaries/8_2.htm (accessed 11 June 2010).
14^ United Nations, Diplomatic Conferences: United Nations Conference on the Law of the Sea, 1960, available at http://untreaty.un.org/cod/diplomaticconferences/lawofthesea-1960/lawofthesea-1960.html (accessed 10 June 2010).
15^ United Nations, The United Nations Convention on the Law of the Sea (A Historical Perspective), available at http://www.un.org/Depts/los/convention_agreements/convention_historical_perspective.htm (accessed 9 June 2010).
16^ United Nations, Diplomatic Conferences: United Nations Conference on the Law of the Sea, 1973-1982, available at http://untreaty.un.org/cod/diplomaticconferences/lawofthesea-1982/lawofthesea-1982.html (accessed 9 June 2010).
17^ Ibid.
18^ United Nations Convention on the Law of the Sea, December 10, 1982, 1833 U.N.T.S. 397 [hereinafter UNCLOS].
19^ UNCLOS art 308.
20^ Vienna Convention on the Law of Treaties, art 2(1)(d).
21^ UNCLOS art 5.
22^ UNCLOS art 8.
23^ UNCLOS art 2.
24^ UNCLOS art 17; UNCLOS art 24.
25^ United Nations, The United Nations Convention on the Law of the Sea (A Historical Perspective), available at http://www.un.org/Depts/los/convention_agreements/convention_historical_perspective.htm (accessed 9 June 2010).
26^ United Nations, The United Nations Convention on the Law of the Sea (A Historical Perspective), available at http://www.un.org/Depts/los/convention_agreements/convention_historical_perspective.htm (accessed 9 June 2010).
27^ UNCLOS art 37 and 38.
28^ UNCLOS art 34.
29^ UNCLOS art 33.
30^ UNCLOS art 57.
31^ UNCLOS art 58.
32^ UNCLOS art 56; UNCLOS art 61-64.
33^ United Nations, The United Nations Convention on the Law of the Sea (A Historical Perspective), available at http://www.un.org/Depts/los/convention_agreements/convention_historical_perspective.htm (accessed 9 June 2010).
34^ United Nations, The United Nations Convention on the Law of the Sea (A Historical Perspective), available at http://www.un.org/Depts/los/convention_agreements/convention_historical_perspective.htm (accessed 9 June 2010).
35^ OCS Alternative Energy and Alternative Use Programmatic EIS, The Outer Continental Shelf, available at http://ocsenergy.anl.gov/guide/ocs/index.cfm (accessed 14 June 2010); Department of the Navy Office of Naval Research, Ocean Regions: Ocean Floor - Continental Margin & Rise, available at http://www.onr.navy.mil/focus/ocean/regions/oceanfloor2.htm (accessed 14 June 2010).
36^ United Nations Division for Ocean Affairs and the Law of the Sea, The Definition of the Continental Shelf and the Criteria for the Establishment of its Outer Limits, available at http://www.un.org/Depts/los/clcs_new/continental_shelf_description.htm (accessed 14 June 2010).
37^ UNCLOS art 76; United Nations Division for Ocean Affairs and the Law of the Sea, The Definition of the Continental Shelf and the Criteria for the Establishment of its Outer Limits, available at http://www.un.org/Depts/los/clcs_new/continental_shelf_description.htm (accessed 14 June 2010); United Nations, The United Nations Convention on the Law of the Sea (A Historical Perspective), available at http://www.un.org/Depts/los/convention_agreements/convention_historical_perspective.htm (accessed 9 June 2010).
38^ UNCLOS art 77.
39^ UNCLOS art 78.
40^ UNCLOS Annex II, art 4.
41^ Article 82.
42^ United Nations, The United Nations Convention on the Law of the Sea (A Historical Perspective), available at http://www.un.org/Depts/los/convention_agreements/convention_historical_perspective.htm (accessed 9 June 2010).
43^ UNCLOS art 86.
44^ UNCLOS art 89.
45^ UNCLOS art 87.
46^ UNCLOS art 87
47^ UNCLOS art 99-109.
48^ UNCLOS art 1.
49^ UNCLOS art 136.
50^ UNCLOS art 137.
51^ UNCLOS Annex II, art 1.
52^ UNCLOS Annex II, art ..
53^ UNCLOS art 157.
54^ UNCLOS art 157(1), art 1
55^ UNCLOS art 157(2).
56^ UNCLOS art 157.
57^ UNCLOS art 159(1).
58^ UNCLOS art 160.
59^ UNCLOS art 161.
60^ UNCLOS art 162(1).
61^ UNCLOS art 162.
62^ UNCLOS art 163.
63^ UNCLOS art 164(1).
64^ UNCLOS art 164(2).
65^ UNCLOS art 165(1).
66^ UNCLOS art 165(2).
67^ UNCLOS art 166.
68^ UNCLOS Annex VI, art 2-3.
69^ UNCLOS Annex VI, art 5.
70^ International Tribunal for the Law of the Sea, General Information - Overview: International Tribunal for the Law of the Sea, available at http://www.itlos.org/start2_en.html (accessed 18 June 2010).
71^ UNCLOS Annex VI, art 14.
72^ UNCLOS art 194.
73^ UNCLOS art 204.
74^ UNCLOS art 198.
75^ UNCLOS art 199-201.
76^ UNCLOS art 1(5)(a).
77^ UNCLOS art 1(5)(b)(i).
78^ International Maritime Organization, UNCLOS, available at http://www.imo.org/dynamic/mainframe.asp?topic_id=1514&doc_id=7602 (accessed 9 June 2010).
79^ UNCLOS art 210(5).
80^ UNCLOS art 216.
81^ UNCLOS art 61.
82^ UNCLOS art 62(1).
83^ UNCLOS art 62(2).
84^ UNCLOS art 63.
85^ UNCLOS art 64.
86^ UNCLOS art 66; National Oceanic and Atmospheric Administration, NEFSC Fish FAQ, available at http://www.nefsc.noaa.gov/faq/fishfaq1a.html (accessed 17 June 2010).
87^ UNCLOS art 66.
88^ UNCLOS art 67; National Oceanic and Atmospheric Administration, NEFSC Fish FAQ, available at http://www.nefsc.noaa.gov/faq/fishfaq1a.html (accessed 17 June 2010).
89^ UNCLOS art 67.
90^ UNCLOS art 116.
91^ UNCLOS art 117.
92^ UNCLOS art 118.
93^ UNCLOS art 119.
94^ UNCLOS art 65.
95^ UNCLOS art 196.
96^ UNCLOS art 207.
97^ 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).
98^ UNCLOS art 213.
99^ UNCLOS art 211 (3-4).
100^ UNCLOS art 211(5).
101^ UNCLOS art 211(6).
102^ UNCLOS art 94.
103^ UNCLOS art 217(1).
104^ UNCLOS art 217(6).
105^ UNCLOS art 217(6).
106^ UNCLOS art 228.
107^ UNCLOS art 94.
108^ UNCLOS art 219.
109^ 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).
110^ UNCLOS art 218(1).
111^ Ho-Sam Bang, 295.
112^ UNCLOS art 218(2-3); Ho-Sam Bang, 297.
113^ Ho-Sam Bang, 295.
114^ UNCLOS art 228(1).
115^ UNCLOS art 228(2).
116^ UNCLOS art 219.
117^ UNCLOS art 220(2); UNCLOS art 220(8).
118^ UNCLOS art 220(3); UNCLOS art 220(8).
119^ UNCLOS art 220(5).
120^ UNCLOS art 220(6) [emphasis added]; UNCLOS art 220(8).
121^ UNCLOS art 224.
122^ UNCLOS art 225.
123^ UNCLOS art 231.
124^ UNCLOS art 236.
125^ UNCLOS art 230.
126^ UNCLOS art 229.
127^ UNCLOS art 238, 240.
128^ UNCLOS art 245.
129^ UNCLOS art 246.
130^ UNCLOS art 248.
131^ UNCLOS art 249.
132^ 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).
133^ 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).
134^ 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).
135^ Ibid, 30.
136^ 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).
137^ John Charles Kunich, Losing Nemo: The Mass Extinction Now Threatening the World's Ocean Hotspots, 30 Colum. J. Envtl. L. 1, 45 (2005).
- Churchill R. R., A. V. Lowe. 1988. The Law of the Sea. Manchester (2nd ed.) ISBN: 1578230292
- Oxman B. H. 1994. The 1994 Agreement and the Convention. American Journal of International Law, 88:687-96.
- Treves T. 1990. Codification du Droit International et Pratique des Etats dans le Droit de la Mer. HR IV p.9
- 1982 United Nations Law of the Sea Convention (full text)
Citation
Daniel Hollis (Lead Author);Tatjana Rosen (Contributing Author);Dawn Wright (Topic Editor) "United Nations Convention on Law of the Sea (UNCLOS), 1982". In: Encyclopedia of Earth. Eds. Cutler J. Cleveland (Washington, D.C.: Environmental Information Coalition, National Council for Science and the Environment). [First published in the Encyclopedia of Earth June 22, 2010; Last revised Date November 11, 2012; Retrieved November 20, 2012 <http://www.eoearth.org/article/United_Nations_Convention_on_Law_of_the_Sea_(UNCLOS),_1982>The Author
Daniel Hollis is currently a student at Pace University School of Law
and the Lubin School of Business where is he pursuing his JD with
certificates in Environmental Law and International Law as well as his
MBA with a dual concentration in Accounting and Strategic Management.
... (Full Bio)
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