Introduction
The law of the sea is a body of public international
law governing the geographic jurisdictions of coastal
States and the rights and duties among States in the
use and conservation of the ocean environment and its
natural resources. The law of the sea is commonly
associated with an international treaty, the Convention
on the Law of the Sea (UNCLOS), negotiated
under the auspices of the United Nations, which was
signed in 1982 by 117 States and entered into force in
At present 133 States have signed and ratified
UNCLOS; Canada, Israel, Turkey, USA, and Venezuela
are the most prominent among those that have
not ratified. This treaty both codified customary
international law and established new law and institutions
for the ocean. UNCLOS is best understood as
a framework providing a basic foundation for the
international law of the oceans intended to be extended
and elaborated upon through more specific
international agreements and the evolving customs of
States. These extensions have begun to emerge already,
making the law of the sea at once broader, more
complex, and more detailed than UNCLOS per se.
The law of the sea can be distinguished from two
closely related bodies of law: maritime and admiralty.
Maritime law is the private law relating to ships
and the commercial business of shipping. Admiralty
law, often used synonymously with maritime law,
applies to the private law of navigation and shipping,
in inland waters as well as on the ocean. The latter
may also refer more parochially to the legal jurisdiction
of specialized Admiralty courts. There may
be important overlaps between the public international
law of the sea and private maritime law, as
may occur through the application of rules for vessel
passage through a jurisdiction or the enforcement of
domestic law in the ocean.
The historical development of the law of the sea is
sometimes traced back to a Papal Bull of 1493,
which divided the world’s oceans between Portugal
and Spain, thereby solidifying Spain’s claim to Columbus’
discovery of the New World. In the early
seventeenth century, an important ‘debate’ took
place between the Dutch jurist Hugo Grotius, who,
in 1608, argued on the basis of natural law for
freedom of the seas, and the English academic, John
Selden, who argued in 1635 for the establishment of
sovereign rights over areas of the ocean. In modern
times, both regimes persist, although scientific and
technological advances have combined to reduce that
portion of the seas that is not subject to the authority
of coastal States, and international rules have been
developed to regulate many types of activities that
occur beyond the reach of national jurisdictions.
This article outlines the public international law of
the sea, focusing mainly on UNCLOS. Important
extensions of the UNCLOS framework are highlighted.
The development of the law of the sea can be
conceptualized as a tree with UNCLOS as its trunk.
Its roots are historical customs, some centuries old,
and agreements that emerged mostly after World War
II. Its branches are customs, agreements, and soft law
that is only now beginning to take shape. Six topical
areas are covered: underlying principles, jurisdictions,
fishery resources, mineral resources, marine science
and technology, environmental protection, and dispute
settlement.
Underlying Principles
UNCLOS and its related agreements articulate certain
distinctive, but closely related, principles of
international environmental law. One of these, concerning
sovereignty over resources, can be considered
a general principle of customary international law.
Others, including precautionary action, the common
heritage of mankind, the duty to conserve the environment,
sustainable development, and international
cooperation, are just now emerging. These
latter are philosophical concepts helping to shape the
law of the sea that may one day achieve the status of
general principles.
Sovereignty over Resources
One of the most widely accepted norms of international
environmental law is found in Principle 21
of the Stockholm Declaration of 1972. Its objective is
to strike a balance between a State’s sovereignty and
its responsibility to ensure that its activities and the
activities of its citizens do not cause environmental
harm to other States or to areas beyond national
jurisdiction. The UNCLOS rendering of Principle 21
reads:
States have the sovereign right to exploit their natural resources
pursuant to their environmental policies and in
accordance with their duty to protect and preserve the
marine environment.
Further,
States shall take measures necessary to ensure that activities
under their jurisdiction or control are so conducted as not
to cause damage by pollution to other States and their environment,
and that pollution arising from incidents or
activities under their jurisdiction or control does not spread
beyond the areas where they exercise sovereign rightsy
This principle applies to the actions of the citizens
of a State within its territorial sea and exclusive
economic zone, as well as on ships flying its flag,
wherever they may steam.
Precautionary Action
First applied to the marine environment in 1987 after
the development of UNCLOS, the principle of precautionary
action refines and strengthens Principle
During the last decade, it was incorporated increasingly
into international agreements and soft
law, such as the 1992 Rio Declaration and its accompanying
Report on the United Nations Conference
on Environment and Development (popularly
known as Agenda 21). The articulation of the principle
has been inconsistent, leading to varying interpretations
in different contexts. In the context of
marine pollution, a fair, but general, reading of the
principle is that the release of substances thought to
be potentially harmful should be regulated (or prohibited)
prior to the establishment, according to
scientific methods, of a causal link between the release
and environmental damage. The principle implies
a shift in the burden of proof from the pollutee
or regulator, who previously had to prove that the
release of a substance was harmful, to the polluter,
who now must prove that it is not. The principle has
an analogous interpretation in the fisheries context.
Common Heritage
Five principal elements characterize the common
heritage of mankind: (1) common space areas are
owned by no one but are managed by everyone; (2)
universal popular interests have priority over national
interests; (3) the economic benefits of natural
resources exploited from the commons must be
shared among all States; (4) the use of the commons
must be limited to peaceful purposes; and (5) scientific
research is permissible as long as there is no
threat to the environment. The principle is stated in
connection with the Area (see next section on Jurisdictions),
which, along with its resources, is defined
explicitly in UNCLOS as the common heritage of
mankind. Some commentators have argued, however,
that the exploitation of the resources of the
Area is still a high seas freedom, not subject to the
common heritage principle. This latter interpretation
may be particularly relevant for States that have not
ratified UNCLOS.
Environmental Conservation
UNCLOS specifies that:
All States have the duty to take, or to cooperate with other
States in taking, such measures for their respective nationals
as may be necessary for the conservation of the living resources
of the high seas.
Thus, a State whose nationals fish on the high seas is
obliged to adopt conservation laws for its own citizens.
The principle of obligatory environmental
conservation under UNCLOS has influenced subsequent
environmental agreements, including the
1985 ASEAN agreement through which its parties
contracted to take measures to safeguard ecological
processes, and soft law, including Chapter 17 (concerning
the Oceans) of Agenda 21.
Sustainable Development
Sustainable development is another principle that
emerged after the development of UNCLOS. It was
articulated most clearly in the Rio Declaration, and it
appears (referred to as sustainable use) in the 1992
Convention on Biological Diversity. As a general
guiding principle, it implies economic or resource
development in a way and at a rate such that the
needs of both present and future generations can be
met. Early conceptions of this principle appeared in
UNCLOS, particularly with respect to the sustainable
yield in fisheries, and it can be seen as closely
related to the principles of environmental conservation
and precautionary action.
International Cooperation
In addition to the general obligation of members of
the United Nations to cooperate in good faith with
the organization and among themselves, UNCLOS
expresses a particular need to cooperate to conserve
the seas. The convention calls for international cooperation
in the conservation and management of
living and nonliving resources, the use of scientific
study for the benefit of mankind, the peaceful
settlement of all sea-related disputes, regulation of
pollution, technology transfer to developing nations,
and enforcement of all the provisions of the Convention.
International cooperation is facilitated by
international organizations, thus the Convention
provides mechanisms to aid dialogue among member
States. Some examples include: the International Sea
Bed Authority, the International Tribunal on the Law
of the Sea, and the Commission on the Limits of the
Continental Shelf.
Jurisdictions
The world’s oceans are divided into six basic zones in
which the types and degrees of State jurisdiction
vary. These zones are: the territorial sea, the contiguous
zone, the exclusive economic zone (EEZ), the
continental shelf, the high seas, and the Area. The
seaward limits of the territorial sea, contiguous zone,
and EEZ are defined in terms of distance from a
baseline, which is essentially the waterline at low
tide. The construction of baselines may follow any of
several methods; in theory, the baseline might shift
with changes in coastal geomorphology. The drawing
of straight baselines is permitted across deeply
indented coastlines or to connect islands along the
coast of a State. (Islands, differentiated from mere
rocks, must be capable of sustaining human habitation
or an economic life of their own.) Baselines
may not extend more than 24 nautical miles across
the mouth of a bay.
Territorial Sea
The territorial sea extends to a limit of 12 nautical
miles from the baseline of a coastal State. Within this
zone, the coastal State exercises full sovereignty over
the air space above the sea and over the seabed and
subsoil. A coastal State may legislate on matters
concerning the safety of navigation, the preservation
of the environment, and the prevention, reduction,
and control of pollution without any obligation to
make these rules compliant with international
standards. Resource use within the territorial sea is
strictly reserved to the coastal State.
All States have the right of innocent passage
through the territorial sea of another state, although
there is no right of innocent air space passage. Innocent
passage is considered moving through the
territorial sea in a way that is not prejudicial to the
security of the coastal State, including any stopping
and anchoring necessary to ordinary navigation. Innocent
passage implies two important limits to the
power of coastal State jurisdiction in the territorial
sea: (1) the obligation not to hamper, deny, or impair
the right of innocent passage; and (2) the recognition
of innocent passage even in the case of vessel-source
pollution as long as the pollution is not willful and
serious. With notice, innocent passage may be suspended
in specified areas of the territorial sea for
security reasons.
Even warships are to be accorded innocent passage
(submarines must remain on the surface); however,
in practice, many States require prior authorization
for warships entering their territorial sea, and the
law is unsettled here. Following the decision of the
International Court of Justice in an infamous case in
which Albania failed to notify Great Britain of the
presence of underwater mines in the Corfu Channel,
the coastal State must notify other States of its
knowledge of navigational hazards. Regimes exist
also for transit passage through international straits
and archipelagic sea lanes passage in designated sea
lanes through archipelagos, such as the Philippines.
Contiguous Zone
The contiguous zone is a region adjacent to the territorial
sea in which the coastal State may exercise
control to prevent and punish infringement of its
customs, fiscal, immigration, or sanitary laws. It may
not exceed a distance of 24 nautical miles from the
baseline. The coastal State may take action only with
respect to offenses committed within its territory or
territorial sea – not to those occurring within the
contiguous zone or beyond. Although not sanctioned
by UNCLOS, States such as India, Pakistan, and
Yemen have asserted security jurisdiction in their
contiguous zones. Such practices are becoming more
widely accepted as customary international law.
Exclusive Economic Zone (EEZ)
The EEZ is an area beyond and adjacent to a coastal
State’s territorial sea to a limit of 200 nautical miles
from the baseline. Within this zone, the coastal State
may exercise sovereign rights over exploration, exploitation,
conservation, and management of natural
resources and other economic activities, such as the
production of wind or tidal power. All States, whether
coastal or land-locked, enjoy the right of navigation
and overflight and the laying of submarine
cables and pipelines within any EEZ. The coastal
State alone, however, has the right to construct and
operate artificial islands and other structural installations
with accompanying 500 meter safety zones.
Within the EEZ, the coastal State is primarily responsible
for the conservation of living resources.
The coastal State has the right to regulate both
marine scientific research and pollution in the EEZ.
It also has legislative and enforcement competence
within its EEZ to deal with the dumping of waste
from vessels and pollution from seabed activities.
The practice of claiming an EEZ is one example of
how UNCLOS has given rise to customary international
law. The United States, for example, is not a
party to UNCLOS but claims an EEZ that extends
up to 200 nautical miles from its baseline. Canada
has even adapted UNCLOS provisions to meet its
needs for an exclusive fishing zone.
Continental Shelf
The continental shelf is geologically defined as the
submerged prolongation of the land mass of the
coastal State, consisting of the seabed and subsoil of
the shelf, slope, and rise. It does not include the deep
ocean floor. The significance of the continental shelf
is that it may contain valuable minerals and shellfish.
UNCLOS addresses the issue of jurisdiction over
these resources by allocating sovereign rights to the
coastal State for exploration and exploitation.
The shelf has been defined as extending either to
the edge of the continental margin or to 200 nautical
miles from the baseline, whichever is further. Unlike
the case of an EEZ, coastal States do not have to
proclaim a continental shelf, but they must define its
limits. Where the physical limits of the continental
shelf extend beyond 200 nautical miles, the coastal
State must delineate it, according to one of several
formulas, using straight lines that do not exceed 60
nautical miles in length. A Commission on the Limits
of the Continental Shelf makes recommendations to
coastal States on matters related to the establishment
of outer limits of the continental shelf where they
extend beyond 200 nautical miles.
High Seas
UNCLOS defines the high seas to be:
All parts of the sea that are not included in the EEZ, the
territorial sea, the internal waters of a State, or in the
archipelagic waters of an archipelagic State.
On the high seas, all States enjoy freedoms of
navigation, overflight, fishing, scientific research, the
laying of submarine cables and pipelines, and the
construction of artificial islands and installations.
Because the high seas are open to all States, no State
may attempt to subject any part of them to its
sovereignty.
Jurisdiction over ships on the high seas is reserved
for the flag State. There must be a genuine link between
the State and the ship that flies its flag, and
States must fix their own conditions for granting
nationality to ships and for registration. Warships
and government vessels are accorded complete
immunity from the jurisdiction of any State other
than their flag State. High seas fishing States have a
duty to take conservation measures for their own
nationals either alone or in cooperation with other
nations. In instances of piracy, unauthorized broadcasting,
slave trading, illicit drug trafficking, or
statelessness, nonflag States may exercise enforcement
jurisdiction.
The Area
The Area is defined as ‘the sea-bed and ocean floor
and subsoil thereof, beyond the limits of national
jurisdiction’. The Area has significance because of
the occurrence of mineral resources, such as polymetallic
nodules. Like the rest of the high seas, the
Area and its resources are considered to be the
common heritage of mankind. Each State must ensure
that the activities of its own nationals are controlled,
with the understanding that damage to the
Area may entail State liability.
An International Seabed Authority, established in
Jamaica, regulates all activities in the Area, from
marine scientific research to resource exploration and
development. The Authority also has the right to
conduct scientific research and to enter into research
contracts. Finally, it enjoys the right to make rules and
regulations preventing pollution to the marine environment
and protecting natural resources. All installations
are subject to these rules and regulations.
Boundary Determinations
Several territorial and continental shelf boundaries
were decided prior to the signing of UNCLOS, but
there are many international boundaries that still
must be drawn. In 1984, in the Gulf of Maine Case,
the International Court of Justice decided the first
combined EEZ and continental shelf boundary, between
the United States and Canada. There appear to
be no hard and fast rules for boundary determinations.
Rationales for claims have ranged from historic
uses to economic significance, leading the Court
to decide most cases on the basis of equitable principles
and relevant circumstances.
Fishery Resources
The last half-century bore witness to significant
growth in worldwide yields of marine fish stocks,
starting at around 20 million metric tons in 1950 and
peaking at 93 million metric tons in 1997. Although
each fishery has its own unique characteristics, fisheries
scientists now believe that, at the global level,
aggregate yields have approached a natural limit.
There are well-known examples of fisheries that have
been exploited at inefficiently high rates, leading in
some cases to severe stock depletion (e.g., north–west
Atlantic cod). Evidence continues to mount of a shift
from the exploitation of species at high trophic levels
to those at lower levels, revealing a natural constraint
to further expansion of wild harvests. Any increases in
the production of seafood from the ocean and its
value are likely to require both the implementation of
more effective management measures that seek to
optimize economic yields and the continuing development
of husbandry (aquaculture).
In the face of production trends and constraints in
wild harvest fisheries, there is a critical need for the
implementation of management measures that lead
to sustainable yields. Although this need has been
recognized for decades, it has rarely been achieved
because of the difficulties of allocating shares of
harvests across different groups in the face of limits
to understanding the dynamics of intertwined ecological
and environmental systems. As a practical
matter, the international law of the sea relating to
fisheries conservation provides only a crude framework
within which to work. Domestic and regional
institutions implement specific management measures
within the broader context of this framework.
Regional Fishery Management
Regional institutions were established as early as a
century ago primarily for the purposes of conducting
scientific research on fisheries and ecosystems that
would lead, it was hoped, to recommendations for
management (namely, the International Council for
Exploration of the Seas in 1902). In the period since
the end of World War II, these regional institutions
proliferated. Today, more than 30 regional fishery
bodies exist worldwide, most of which now strive to
couple fisheries science to the active management of
stocks that straddle the fisheries jurisdictions of
multiple States or stocks that are located in part
beyond any national jurisdiction (the so-called highseas
and highly migratory stocks). Where stocks are
actively managed, national quotas tend to be the
instrument of choice, although enforcement problems
are rife. Even with this institutional presence, at
any time, dozens of fisheries conflicts are occurring
between the nationals of different States. In the extreme,
fishery conflicts have been known to escalate
to the level of military intervention.
The impetus for extending national territories that
led to the basic jurisdictional zones codified in
UNCLOS was driven by the perceived value of
marine resources adjacent to coastal States. For
fishery resources in the developed world, this value
increased as demand expanded and technological
innovations reduced costs. In 1958, an international
Convention on Fishing and Conservation of the
Living Resources of the High Seas was signed, providing
the basic framework that remains little changed
to this day: local management coupled with the
encouragement to cooperate internationally where
nationals from different States prosecute the same
fishery. According to the 1958 Convention, States
were permitted to implement conservation and
management measures for their own nationals fishing
‘high seas’ stocks adjacent to their coasts and
were urged to cooperate with other States fishing
there.
Fishery Conservation Zones
One shortcoming of the 1958 Convention was that
the geographic boundary defining the high seas was
left undefined. This problem was rectified by
UNCLOS, which permitted States to claim an EEZ
within which they could exercise ‘sovereign rights’
over the exploitation of their natural resources, including
fisheries. Several conditions were placed on
this exercise of sovereign rights, but, in practice,
these conditions are not seen as limiting. For example,
States may determine the total allowable
catch and are to manage EEZ fisheries at levels that
can produce a maximum sustainable yield. However,
management for maximum sustainable yield may be
qualified at the State’s discretion by economic, environmental,
ecological, or distributional reasons.
These qualifications could be used as arguments for
setting allowable catch, and thereby fishing effort, at
levels either above or below those that might maximize
sustainable yield. If a coastal State does not
have the capacity, as measured by itself, to harvest its
allowable catch, then, by agreement, it shall give
other States, including landlocked and geographically
disadvantaged States, access to any surplus.
(This provision does not apply to sedentary shellfish
stocks anywhere on the continental shelf.) In practice,
the discretion accorded a State in determining
fishing capacity and allowable catch implies that any
surplus could be defined away easily. However, some
States, notably Pacific Island States, have used these
provisions to rent out their EEZ fisheries to the fleets
of major distant water fishing nations, such as Japan.
Coastal States within whose internal waters and
EEZs anadromous fish (e.g., salmons) originate or
catadromous fish (e.g., eels) spend the greater part of
their life cycle are responsible for management of
these species. Unless otherwise agreed to on a regional
or an international basis, such species are to
be fished inside the EEZ. Highly migratory species
(e.g., tunas, billfishes, sharks, cetaceans) are to be
managed through regional or international organizations
to ensure conservation and to promote optimum
utilization. Importantly, marine mammal
conservation may be regulated more strictly within a
coastal State’s EEZ than provided for by international
rules.
Straddling and High Seas Stocks
UNCLOS also provides a framework for straddling
and high seas stocks. This framework has been
elaborated further in a 1995 international Agreement
on Straddling Fish Stocks and Highly Migratory Fish
Stocks. Problems remain, however, including the
specification of multiple and potentially mutually
exclusive management objectives (e.g., maximize
yield and minimize by-catch). Again, regional bodies
are asked to undertake the tough job of operational
management. States are encouraged to join existing
or to establish new regional management institutions.
However, where such bodies already exist,
the basis for incorporating new entrants into decision
making and for allocating to them a limited quota
remain unclear.
Mineral Resources
Ocean mineral resources, particularly offshore oil
and natural gas, contribute significantly to worldwide
supply. Offshore deposits now provide almost
10% of oil and 20% of natural gas production
worldwide. Hard mineral deposits are much less
important, although in some areas their production
is meaningful to local economies. Tin has been produced
for decades by dredging high-grade deposits
located in the nearshore waters of Thailand and
Indonesia. Diamonds are now profitably recovered
off the coast of Namibia. Sulfur and salt are mined in
conjunction with offshore oil production. Sand and
gravel and calcium carbonate for use as a construction
aggregate and to forestall beach erosion are
dredged in many parts of the world. Other minerals
on the continental shelves include phosphorite deposits
and heavy mineral sands. Interest in the exploration
of these latter occurrences continues, but
these resources cannot yet be classified as economic
reserves.
Certain types of deep ocean mineral deposits are
plentiful, including polymetallic nodules, ferromanganese
crusts, and polymetallic sulfides. Much
political effort was expended to establish in
UNCLOS an international legal regime governing
the exploitation of these classes of minerals. Although
deep ocean resources are thought to be vast,
the cost of recovery and processing, including the
major risks of operating on the high seas, cannot
now or in the foreseeable future justify their commercial
exploitation.
Continental Shelf Minerals
Because of the costs of operating in the offshore
environment, much of the production of ocean
minerals takes place in shallow, near-shore waters.
Deep-water facilities, which at present are operational
only for oil and natural gas, such as those in
the North Sea, require very large or high-grade deposits
to generate viable scale economies. Where
production takes place within the territorial sea, the
legal regime is well developed, differing little from
domestic rules onshore. Consequently, the most significant
legal provisions in the international law of
the sea relating to mineral resources concern the establishment
of a regime for the continental shelf.
Production from seabed pools of oil and natural
gas began at the turn of the century off the coast of
California and in the Gulf of Mexico. But it was not
until after World War II that an international legal
regime governing the disposition of the resources of
the continental shelf began to take shape. In 1945,
US President Harry Truman issued a Proclamation
asserting US jurisdiction and control over the Continental
Shelf seabed and the natural resources of the
subsoil. No seaward limit to the shelf was specified,
although it was suggested that the shelf could be
considered to extend to a depth of 100 fathoms
(D183 meters). The Truman Proclamation (and its
companion proclamation concerning fishery resources)
helped set off a series of jurisdictional claims
of varying geographic and legal coverages in Latin
America, the Middle East, and elsewhere. In 1958, a
Convention on the Continental Shelf entered into
force, defining the continental shelf as an area adjacent
to a State’s coast – but beyond its territorial
sea – to a depth of 200 m. The adjacent coastal State
could exercise sovereign rights over the exploration
and exploitation of the natural resources of its continental
shelf. Importantly, this jurisdiction could be
extended ‘to where the depth of the superjacent
waters admits of the exploitation’ of the natural resources.
In this sense, jurisdiction could be expected
to ‘creep’ with technological advance and changes in
market conditions.
With respect to ocean mineral development, the
activity surrounding the legal regime for the deep
seabed arguably has drawn attention away from a
more important part of UNCLOS: the royalty provisions
concerning the development of the continental
shelf. UNCLOS provides that nonliving resource
production occurring on that portion of the
continental shelf extending beyond 200 nautical miles
is subject to financial payments or contributions in
kind to the International Seabed Authority, which is
to share them equitably among the parties to
UNCLOS. Payments begin at 1% of the value or
volume of production in the sixth year of production.
The payment increases at 1% a year until it reaches
7% in the 12th year, where it remains fixed.
Deep Seabed Minerals
As the Continental Shelf Convention was being finalized,
economic geologists and mining engineers
began to examine more closely the potential for exploiting
the vast deposits of polymetallic nodules
occurring on the deep seabed. Polymetallic nodules
are composed of a number of metals, including iron,
manganese, nickel, copper, and cobalt. Recent economic
analyses focus on nodules mainly as a nickel
ore, with cobalt, copper, and, in some scenarios,
manganese to be produced as by-products. Early
analyses, conducted in the late 1950s and early
1960s, suggested that the nodule resource was
commercially exploitable, while noting that there
was no legal mechanism for allocating rights to areas
thought to be so far offshore as to be beyond national
jurisdiction.
In 1967, the Maltese Ambassador to the United
Nations, Arvid Pardo, called for an international
agreement to prevent the national appropriation of
the deep seabed, to establish the seabed and its resources
as a common heritage of mankind, and to
employ any resource rents for the development of
poor nations. Although these basic principles were
eventually incorporated into UNCLOS, their acceptance
by the international community, especially
by the developed West and the Soviet bloc, was not
immediate. By 1970, however, the administration of
US President Richard Nixon proposed a common
heritage mining regime for an International Seabed
Area, located beyond the 200m isobath, that laid the
basis for the UNCLOS negotiations.
When UNCLOS was ready for signature in 1982,
the deep seabed regime had become so extraordinarily
complex and restrictive as to be unpalatable to
some of the western market-oriented States. The
common heritage principle was to be the centerpiece
of the postcolonial new international economic
order, through which the development of the world’s
poorer States would be boosted by mandatory technology
transfer and the promise of financial payments
flowing from mineral royalties. This
conception was made to appear realistic in light of
predictions of world resource limits, such as those
made by groups like the Club of Rome, and shortterm
upward trends in metal commodity prices.
Those States concerned about the effects on their
own mineral sectors from seabed mine production
were appeased in part with the promise of production
limits. The final treaty provided for a parallel
system of mining. Each pioneer investor (either a
State or an industrial consortium sponsored by a
State) would stake a mining claim and offer an
additional claim of equivalent expected value to the
International Seabed Authority’s Enterprise. The
Enterprise would mine the parallel claims using
technology transferred to it by the industry.
Although the parallel system was a US proposal, in
1982 the incoming administration of US President
Ronald Reagan would have nothing to do with the
deep seabed mining provisions. The United States,
Germany, and Great Britain, all with industrial
interests in deep seabed mining, refused to sign the
Convention, arguing that the nonseabed provisions
reflected customary international law. Other developed
States with seabed mining interests, including
Japan, France, Canada, The Netherlands,
Australia, and the Soviet Union, signed the Convention
but delayed ratification. In lieu of the
UNCLOS regime, a reciprocating States regime was
organized by the West, permitting claims to the deep
seabed to be staked and recognized among the participants
to that agreement. The combination of the
alternative regime, a steep decline in commodity
prices in the 1980s, and delayed ratifications resulted
in an agreement in 1994 to modify the deep seabed
mining regime. Among other provisions, the revised
UNCLOS deep seabed mining regime eliminated
production controls and mandatory technology
transfers, reduced license fees, and put the claims of
miners registered under the reciprocating States regime
on an equal footing with pioneer investors
registered under the Convention.
Marine Science and Technology
UNCLOS was the first international agreement to
establish a regime for the conduct of marine scientific
research in the ocean. The regime recognizes the
right of a coastal State to control access to ocean
areas under its authority for the study of the physical
characteristics of the ocean and its natural resources.
Although the regime has been characterized by some
in the scientific community as unnecessarily burdensome
and too discretionary, and although problems
in obtaining permission for scientific research
commonly arise, the regime has proven to be workable.
Seeking permission to conduct marine scientific
research in the EEZ or on the continental shelf of
another coastal State requires careful advance planning
and, frequently, close cooperation with the scientific
community in the coastal State.
The Convention recognizes that any State or
competent international organization has the legal
right to conduct marine scientific research. This right
is conditioned only on the rights and duties of other
States. Marine scientific research must be conducted
for peaceful purposes, using appropriate scientific
methods, and in such a way so as not to interfere
unjustifiably with other legitimate uses of the ocean.
Consent Regime
Within its territorial sea, each coastal State has the
right to regulate, authorize, or conduct marine scientific
research, as a specific exercise of its sovereignty
there. The conduct of marine scientific
research in the territorial sea of a coastal State requires
its express consent. Within its EEZ and on its
continental shelf, each coastal State has the right to
regulate, authorize, or conduct marine scientific research,
as a specific exercise of its jurisdiction there.
The conduct of marine scientific research in the EEZ
or on the continental shelf of a coastal State requires
its consent. A coastal State may not exercise its discretion
to withold consent for research on the continental
shelf beyond 200 nautical miles unless such
research is proposed in areas that have been specifically
designated by the coastal State for exploration
or exploitation. All States have the right to conduct
marine scientific research in the water column beyond
a coastal State’s EEZ and in the Area.
States seeking consent to conduct marine scientific
research must provide detailed information about a
proposed research project at least six months in advance.
Although it is free to do so, a coastal State is
under no obligation to grant its consent for scientific
research in its territorial sea. Conversely, under
normal circumstances, a coastal State is to grant
consent for EEZ or continental shelf research, and it
must establish rules so that requests for research are
not delayed or denied unreasonably. However,
coastal States are given considerable discretion to
withhold their consent for EEZ and Continental
Shelf research. Notably, consent may be withheld if a
scientific research project is of significance for resource
exploration or exploitation, involves drilling
or the use of explosives or harmful substances, involves
the construction, operation, or use of artificial
islands; if the request for consent contains inaccurate
information about the nature and objectives of the
project, or if the requesting State has outstanding
obligations from a prior research project. If consent
is granted, the coastal State has the right to
participate or to be represented in the research project
and must be given access to all data and samples,
assessments of data, and preliminary and final project
results. Unless the coastal State acts to withhold
consent within four months of the request or requires
supplementary information, or unless outstanding
obligations on the part of the requesting State exist,
the consent of the coastal State is deemed to have
been implied, and the research project may proceed
without an affirmative grant of consent.
Technology Transfer
As an element of the new international economic
order, language encouraging marine technology
transfer was incorporated into UNCLOS to accelerate
the social and economic development of the developing
States. However, the technology transfer
provisions are mainly hortatory, promoting international
cooperation and suggesting options for
program development. Importantly, there is no obligation
to transfer technology other than on fair and
reasonable terms and conditions, respecting the
rights and duties of holders, suppliers, and recipients
of marine technologies.
Environmental Protection
UNCLOS was designed, in part, to serve as the
unifying framework for international law on marine
environmental protection, which it does primarily by
clarifying the rights and duties of States in this regard.
It provides general goals and a few recommendations
for combating all forms of marine
pollution and environmental degradation but no
specific pollution-control standards or required actions.
To the extent that specific standards and requirements
exist, they are set forth in other
multilateral agreements that address either a particular
form or source of pollution or a particular
area of ocean space.
In addition to creating new legal instruments
elaborating rules pursuant to the general goals of
UNCLOS, States are called upon to cooperate in notifying
other countries of imminent threats of pollution,
eliminating the effects of such pollution and
minimizing the damage, developing contingency response
plans, undertaking research programs, exchanging
data, establishing appropriate scientific
criteria for pollution-control rules and standards, and
implementing and further developing international
law relating to responsibility and liability for damage
assessment and compensation.
Although UNCLOS requires States to take measures
against pollution from any source, it places
particular emphasis on certain categories of pollutant
substances and sources. States must take measures
designed to minimize to the fullest extent possible:
(1) releases of toxic, harmful, or noxious substances,
especially those that are persistent, from land-based
sources, from or through the atmosphere, or by
dumping; (2) pollution from vessels; (3) pollution
from installations and devices used in exploration or
exploitation of the natural resources of the seabed
and subsoil; and (4) pollution from other installations
and devices operating in the marine environment.
Among the pollutant sources enumerated
in UNCLOS, only vessel discharges and dumping by
ships and aircraft are currently subject to detailed
standards and regulations at the global level.
Vessel Discharges
The main instrument addressing operational discharges
by vessels is the 1973 International Convention
for the Prevention of Pollution from Ships, as
modified by the 1978 Protocol thereto. Known as
MARPOL 73/78, this treaty system includes five
annexes containing regulations for the prevention of
pollution by oil, by noxious liquid substances in
bulk, by harmful substances carried at sea in packaged
forms or in freight containers, portable tanks,
or road and rail wagons, by sewage from ships, and
by garbage from ships. The annexes covering oil and
noxious liquid substances in bulk are mandatory for
all contracting parties, but the others are optional.
Ocean Dumping
Pollution by dumping includes the deliberate disposal
at sea of wastes or other matter from vessels,
aircraft, platforms, or other artificial structures, as
well as the deliberate disposal of the vessels, aircraft,
or structures themselves. Dumping is regulated at the
global level under the 1972 Convention on the Prevention
of Marine Pollution by Dumping of Wastes
and Other Matter, also known as the London Convention.
The Convention prohibits the dumping of
certain hazardous materials and limits the dumping
of other wastes or matter by requiring prior permits,
including special permits for some materials according
to criteria relating to the nature of the material,
the characteristics of the dumping site, and the
method of disposal. An important category of wastes
not covered by the London Convention are those
derived from the exploration and exploitation of
seabed mineral resources.
Under UNCLOS, such wastes remain subject to
regulation by individual States for activities conducted
in areas under their jurisdiction, while wastes
resulting from activities in the Area beyond national
jurisdiction are subject to regulation by the International
Seabed Authority. UNCLOS also mitigates a
more general shortcoming of the London Convention
– the fact that it has only 78 Contracting Parties
representing just 68% of world merchant-marine
tonnage. The main benefits of UNCLOS in this regard
are that it clarifies the rights of coastal States to
prohibit dumping in waters under their jurisdiction
and requires all of its Contracting Parties to enact
domestic measures that are at least as stringent as the
London Convention requirements.
Movement of Hazardous Wastes
Another global agreement, of relevance to both
vessel-source pollution and dumping, is the 1989
Convention on the Control of Transboundary
Movements of HazardousWastes and Their Disposal
(Basel Convention). Under the Basel Convention,
transboundary movements of hazardous or other
wastes can take place only upon prior written notification
by the exporting State to the States of import
and transit, and each shipment of waste must be
accompanied by a detailed movement document.
Land-based Marine Pollution
Land-based marine pollution (LBMP), although it
accounts for an estimated 80% of all contaminants
entering the sea, is regulated only at the national
level throughout most of the world, with the exception
of six regional seas where multilateral
agreements are in force. Adoption of a global treaty
on LBMP was the object of intensive diplomatic effort
from the mid-1980s until 1995, when 109 States
adopted instead the nonbinding Global Programme
of Action for the Protection of the Marine Environment
Against Land-Based Activities. Among the
main factors discouraging adoption of a binding
global convention have been the largely disappointing
results of the regional agreements and the
fact that the causes and effects of LBMP operate
primarily at regional or smaller geographic scales.
The main arguments in favor of a global convention
have centered on the pervasiveness and seriousness of
the problem in virtually all regions of the world and
the inability of developing countries and regions to
address it effectively in the absence of a legal mechanism
that provides for the transfer of relevant
technologies and other forms of assistance from the
developed world.
Airborne Marine Pollutants
No multilateral agreements are in force whose primary
purpose is the regulation of airborne marine
pollutants, but such pollutants are included within
the general scope of several regional agreements that
address a broad range of marine pollution sources.
Of these, only the agreements covering the Baltic,
North-East Atlantic, and Mediterranean include any
specific regulatory measures. In addition, the 1979
Geneva Convention on Long Range Transboundary
Air Pollution provides for detailed regulation of
emissions of numerous airborne pollutants by participating
Northern Hemisphere countries. Although
it does not target marine pollution directly, the
Geneva Convention presumably provides indirect
benefits to the marine environment.
Persistent Organic Pollutants
Potentially among the most significant international
instruments for controlling marine pollutants that
are both land-based and airborne is a draft global
convention slated for adoption in late 2000. Commonly
known as the POPs Treaty, the agreement will
regulate the production, sale, and use of initially one
dozen persistent organic pollutants (POPs), most of
them pesticides, whose characteristics include the
tendencies to bioaccumulate in the marine food
chain and to undergo long-range oceanic and atmospheric
transport.
Habitat and Ecosystem Protection
UNCLOS calls for States’ pollution-control measures
to include measures to protect habitats and ecosystems,
but it does not make an explicit call for
cooperation in this regard or for ecosystem-based
management of marine resources. UNCLOS thus
leaves large marine ecosystems, which typically
straddle two or more jurisdictional zones, subject to
potentially conflicting management approaches and
enforcement standards. Protection of marine habitats
is provided under two major international treaties –
the 1975 Convention on Wetlands of International
Importance Especially as Waterfowl Habitat (Ramsar
Convention) and the 1992 Convention on Biological
Diversity – and under several Regional Seas
protocols and other regional agreements. Protection
of marine ecosystems is far less well developed in
international law, no doubt in large part because
ecosystem science and management are themselves
comparatively new and undeveloped fields. This circumstance
may also account for what some legal
scholars consider to be an incoherent approach to
ecosystem protection in UNCLOS.
The lack of clarity as to the locus of authority to
enforce ecosystem protections is uncharacteristic of
UNCLOS, which otherwise exhibits an overriding
concern with jurisdictional clarity in the balance it
strikes between the competing interests of international
navigation and the environmental protection
concerns of coastal States. In general,
UNCLOS limits the authority of States to enforce
national and international environmental regulations
where such authority conflicts with other principles
established under the various legal regimes relating
to different categories of ocean space. For example,
coastal State authority to enforce national laws is
subordinated to the right of innocent passage in the
territorial sea; and on the high seas, only the flag
State of an offending vessel has authority to enforce
international environmental regulations, in deference
to the principle of freedom of navigation. Because of
such provisions, in the view of some environmentalists,
UNCLOS does not provide the basis for
full and effective protection of the marine environment,
even if its entire agenda of elaborating agreements
is eventually completed.
Dispute Settlement
Following the UN Charter, which requires that all
States settle their international disputes by peaceful
means and without endangering international security,
UNCLOS provides a binding framework for the
peaceful settlement of sea-related disputes. The
Convention stipulates that if States cannot resolve
their disagreements peacefully on their own, they are
to submit them to one of the following international
bodies of their choice: (1) the International Tribunal
of the Law of the Sea; (2) an arbitral tribunal constituted
in accordance with Annex VII of the Convention;
(3) a tribunal set up in accordance with
Annex VIII; or (4) the International Court of Justice.
International Tribunal of the Law of the Sea
The Tribunal applies the provisions of UNCLOS and
other rules of international law in deciding disputes.
Its decisions are final and must be complied with by
parties to the dispute. The decisions have binding
force only among the parties and with respect to
their particular dispute.
The jurisdiction of the Tribunal comprises all disputes
between parties to the Convention and the
agreement relating to the implementation of the deep
seabed mining provisions. The Tribunal is called
upon to settle three types of claims: (1) claims that
application of the International Seabed Authority’s
rules and procedures are in conflict with obligations
of the parties; (2) claims concerning excess jurisdiction
or misuse of power; and (3) claims for
damages to be paid for failure to comply with conventional
or contractual obligations. The Tribunal
also has jurisdiction over disputes concerning the
Area through a special Seabed Disputes Chamber
and can conduct judicial reviews of the International
Seabed Authority. It cannot, however, substitute its
own decision or measure for that of the Authority or
annul any underlying rule, regulation, or procedure
established by it.
In 1999, a dispute between Saint Vincent and the
Grenadines and Guinea was one of the first to be
settled by the Tribunal. The M/V Saiga, a vessel flying
the flag of Saint Vincent and the Grenadines, had
been pursued and arrested by the Guinean Navy in
international waters south of Guinea’s EEZ because
illegal bunkering was alleged to have taken place
within Guinea’s EEZ. The Tribunal was charged
with making a judgment on whether Guinea could
apply its customs laws in an area beyond its territorial
sea. Although the ship’s master was eventually
found guilty on several counts, the Tribunal found
that Guinea’s application of customs laws in its EEZ
was contrary to UNCLOS.
Annex VII Arbitration
When parties to a dispute do not select a specific type
of arbitration under Article 287, an arbitral tribunal
under Annex VII is automatically formed. Arbitral
tribunals formed under Annex VII are five-member
tribunals. Each party appoints one member and the
remaining three must be approved by both parties
and must be nationals of third-party States. Decisions
are made by a majority vote of its members.
Annex VIII Arbitration
Arbitration under Annex VIII entails the establishment
of four lists of experts from which arbitral
tribunals may be constituted to hear special cases.
Each party to the convention may nominate two
experts in each of the fields. The lists are then established
and maintained by four different international
institutions: (1) the Food and Agriculture
Organization for fisheries; (2) the UN Environment
Programme for marine environmental protection; (3)
the International Maritime Organization for navigation
and ocean dumping; and (4) the Intergovernmental
Oceanographic Commission for
marine scientific research. Five-member tribunals are
set up by these institutions to perform fact-finding
and settle disputes.
International Court of Justice
The International Court of Justice (ICJ) is an independent
forum for dispute settlement that was
established under the UN Charter and whose
authority is recognized by UNCLOS. Some disputes
regarding the law of the sea have already been
brought before the ICJ. An important difference of
arbitration under the ICJ is that once States accept
the court’s jurisdiction, under the Statute of the
International Court of Justice, acceptance of the final
decision in any case cannot be withdrawn once
proceedings are underway. Another difference is that
parties cannot select the members of the court who
will be hearing the case. Although arbitration before
the ICJ depends on the willingness of both parties to
agree to and to participate in the arbitration, the
Court is powerful enough to exert influence over
parties to a dispute who refuse arbitration. For example,
in the 1974 Fisheries Jurisdiction case, although
Iceland did not appear before the court, the
fact that the case made it to the level of international
arbitration put considerable pressure on Reykjavik
to comply with applicable rules of international law.
Future Prospects
The law of the sea will continue to evolve as the
rising worldwide population places greater pressures
on the natural resources and ecological systems of
the coastal ocean. Most of these pressures, without
question, will be situated in the territorial seas and
exclusive economic zones. For example, the continuing
and growing releases of macronutrients, such
as nitrogen, from agricultural operations in all States
may have far-reaching and cumulative impacts on
coastal environments. To the extent that marine
science can unveil the complex physical and ecological
links among national marine jurisdictions, the
relevance and import of the international law of the
sea will grow. Further, a consequence of the scientific
portrayal of coupled ocean–atmosphere systems will
draw the law of the sea more tightly into the fold of
international environmental law, integrating the
broader field, and thereby rendering the law of the
sea less distinguishable as a selfstanding body of law.