RAM MANOHAR LOHIA NATIONAL LAW UNIVERSITY

LUCKNOW

FINAL DRAFT
PUBLIC INTERNATIONAL LAW

UNITED NATIONS CONVENTIONS ON THE LAW OF SEA

UNDER THE GUIDANCE OF:- SUBMITTED BY:-

ASST. PROF. MANWENDRA KUMAR TIWARI VAISHALI KARDAM
(PUBLIC INTERNATIONAL LAW) ROLL NO. 159
4TH SEMESTER

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 ACKNOWLEDGEMENT

Apart from my efforts, the success of this project depends largely on the encouragement
and guidelines of many others. I take this opportunity to express my gratitude to the people
who have been instrumental in the successful completion of this project. I would like to
show my greatest appreciation to PROF. M.K. TIWARI for his tremendous support and
help. I feel motivated and encouraged every time I attend your class. Your willingness to
motivate me contributed tremendously to my project. Without your encouragement and
guidance this project would not have materialized. Besides, I would like to thank the
authority of Dr. Ram Manohar Lohiya National Law University for providing us with a
good environment and facilities to complete this project.

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 TABLE OF CONTENTS

HISTORICAL PERSPECTIVE
WHAT IS THE UNITED NATIONS CONVENTION ON THE LAW OF SEA?
UNCLOS I, II AND III.
IMPACT AND ISSUES OF THE LAW OF TREATY
COMMITMENTS MADE BY THE STATE THAT ARE PARTIES TO THE TREATY
1. FUNDAMENTAL PRINCIPLES
2. STRUCTURE OF THE AGREEMENT
DISPUTE SETTLEMENT MECHANISMS
REJECTION OF TREATY BY UNITED STATES
1. PART XI AND 1994 AGREEMENT
2. SUPPORT FOR UNCLOS III
3. OPPOSITION FOR UNCLOS III
4. UNCLOS TODAY

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CHAPTER 1
A HISTORICAL PERSPECTIVE

Technological advancements during the last century led nations to compete for and exploit
the ocean and its resources at an unprecedented level. Large fishing vessels that could
remain at sea for months at a time depleted fish stocks. The discovery of oil, gas, and
minerals under the seabed led to a competition to claim areas of the sea that held this
wealth. The magnitude of these activities also had a profound effect on the environment as
dwindling fish populations and increased pollution destroyed coastal ecosystems.
Until the mid-twentieth century, most nations adhered to the freedom-of-the-seas doctrine,
which originated in the seventeenth century. The freedom-of-the-seas doctrine granted
nations jurisdiction over the oceans for an area extending three nautical mi (5.5 km) from
shore. Nations considered the waters beyond this three-mile limit to be international waters
that were open to all nations but not belonging to any one nation in particular.
By the mid-twentieth century, deep-sea discoveries and technological advancements led
several nations to question the continued utility of the freedom-of-the-seas doctrine. In the
early twentieth century, valuable metals and diamonds were discovered in the oceans,
which raised the possibility of unrestricted deep-sea mining. Offshore petroleum and gas
reserves were also discovered on continental shelves in the North Sea and off the coast of
North America. The first offshore oil drilling occurred in the Gulf of Mexico in 1947. By
the late 1960s, oil production in the Gulf of Mexico had grown to nearly 400 million tons of
oil per year.

In 1945, in order to protect oil, gas, and mineral reserves, U.S. President Harry Truman
declared that the United States had jurisdiction over the entire continental shelf. President
Truman’s declaration made the United States the first nation to abandon the freedom-of-
the-seas doctrine.
Other nations followed suit and abandoned the freedom-of-the-seas doctrine in order to
protect mineral deposits, petroleum reserves, and rapidly depleting fish stocks. Many
nations also became concerned about the environmental damage caused by pollution and
overfishing. Nations soon became involved in numerous territorial and sovereignty claims
as they competed for the oceans’ vast resources and debated the issue of the rights of ships
to pass through their waters.
In 1967, Arvid Pardo, Malta’s ambassador to the United Nations, called on all nations to
address the environmental, economic, legal, and political issues surrounding the
exploration and use of the oceans and seabed. In 1973, the Third United Nations

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Conference on the Law of the Sea convened in New York City. Nine years later, in 1982,
the conference adopted the United Nations Convention on the Law of the Sea (UNCLOS).

UNCLOS replaces the older 'freedom of the seas' concept, dating from the 17th century:
national rights were limited to a specified belt of water extending from a nation's
coastlines, usually 3 nautical miles (5.6 km) (Three-mile limit), according to the 'cannon
shot' rule developed by the Dutch jurist Cornelius van Bynkershoek.[4] All waters beyond
national boundaries were considered international waters: free to all nations, but belonging
to none of them.

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1

CHAPTER 2

WHAT IS THE UNITED NATIONS CONVENTION ON THE LAW OF SEA?

The United Nations Convention on the Law of the Sea (UNCLOS), also called the Law of
the Sea Convention or the Law of the Sea treaty, is the international agreement that
resulted from the third United Nations Conference on the Law of the Sea (UNCLOS III),
which took place between 1973 and 1982. The Law of the Sea Convention defines the rights
and responsibilities of nations with respect to their use of the world's oceans, establishing
guidelines for businesses, the environment, and the management of marine natural
resources. The Convention, concluded in 1982, replaced four 1958 treaties. UNCLOS came
into force in 1994, a year after Guyana became the 60th nation to ratify the treaty. As of
June 2016, 167 countries and the European Union have joined in the Convention. It is
uncertain as to what extent the Convention codifies customary international law.

While the Secretary General of the United Nations receives instruments of ratification and
accession and the UN provides support for meetings of states party to the Convention, the
UN has no direct operational role in the implementation of the Convention. There is,
however, a role played by organizations such as the International Maritime Organization,
the International Whaling Commission, and the International Seabed Authority (ISA).
(The ISA was established by the UN Convention.)

The United Nations Convention on the Law of the Sea (UNCLOS) establishes a
comprehensive legal framework to govern all activities and uses of the world's seas and
oceans. The Convention defines the limits of territorial seas of countries from which they
can explore and exploit marine resources.

It was adopted in 1982 in Montego Bay, Jamaica after nine years of negotiations involving
representatives from more than 150 countries. UNCLOS entered into force in 16 November
1994. As of January 2015, 166 countries and the European Union have joined the
Convention. The Philippines is the 11th country that ratified the Convention.

1
https://en.wikipedia.org/wiki/United_Nations_Convention_on_the_Law_of_the_Sea

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CHAPTER 3
UNCLOS I, II AND III.

Over 160 nations met in the Third United Nations Conference on the Law of the Sea to
address the issues surrounding use of the oceans. After nine years of negotiations, the
conference adopted the United Nations Convention on the Law of the Sea (UNCLOS).
UNC-LOS addressed the territorial limits of nations over the ocean, economic rights to the
ocean’s resources, and rights of transit. UNCLOS also addressed pollution and other
environmental concerns. Article 192 of UNCLOS states that all nations have a general
obligation “to protect and preserve the environment.” Even though UNC-LOS was not
strictly intended to be an environmental treaty, it has had a profound effect on
environmental regulation in the oceans.

UNCLOS I
In 1956, the United Nations held its first Conference on the Law of the Sea (UNCLOS I) at
Geneva, Switzerland. UNCLOS I [8] resulted in four treaties concluded in 1958:
Convention on the Territorial Sea and Contiguous Zone, entry into force: 10 September
1964
Convention on the Continental Shelf, entry into force: 10 June 1964
Convention on the High Seas, entry into force: 30 September 1962
Convention on Fishing and Conservation of Living Resources of the High Seas, entry into
force: 20 March 1966
Although UNCLOS I was considered a success, it left open the important issue of breadth
of territorial waters.

UNCLOS II
In 1960, the United Nations held the second Conference on the Law of the Sea ("UNCLOS
II"); however, the six-week Geneva conference did not result in any new agreements.
Generally speaking, developing nations and third world countries participated only as
clients, allies, or dependents of the United States or the Soviet Union, with no significant
voice of their own.

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UNCLOS III
The UN Convention on the Law of the Sea (UNCLOS III) set down international norms
governing the use of the world’s oceans and their resources by states. Also known as the
Law of the Sea Treaty, UNCLOS III replaced two prior attempts in 1956 (UNCLOS I) and
1960 (UNCLOS II) to define the rights of states with respect to their territorial seas,
continental shelves, use of the high seas, and management of marine natural resources.

The issue of varying claims of territorial waters was raised in the UN in 1967 by Arvid
Pardo of Malta, and in 1973 the Third United Nations Conference on the Law of the Sea
was convened in New York. In an attempt to reduce the possibility of groups of nation-
states dominating the negotiations, the conference used a consensus process rather than
majority vote. With more than 160 nations participating, the conference lasted until 1982.
The resulting convention came into force on 16 November 1994, one year after the 60th
state, Guyana, ratified the treaty.

The convention introduced a number of provisions. The most significant issues covered
were setting limits, navigation, archipelagic status and transit regimes, exclusive economic
zones (EEZs), continental shelf jurisdiction, deep seabed mining, the exploitation regime,
protection of the marine environment, scientific research, and settlement of disputes.

The convention set the limit of certain areas, namely, internal waters, territorial waters,
archipelagic waters, contiguous zone, exclusive economic zones, continental shelf.

Aside from its provisions defining ocean boundaries, the convention establishes general
obligations for safeguarding the marine environment and protecting freedom of scientific
research on the high seas, and also creates an innovative legal regime for controlling
mineral resource exploitation in deep seabed areas beyond national jurisdiction, through
an International Seabed Authority and the Common heritage of mankind principle.
Landlocked states are given a right of access to and from the sea, without taxation of traffic
through transit states.

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CHAPTER 4
IMPACTS AND ISSSUES OF THE LAW OF TREATY

UNCLOS replaced the three-nautical-mile limit that existed under the freedom-of-the-seas
doctrine with a tiered approach. UNCLOS expanded each nation’s territorial waters to 12
nautical mi (22 km). Within territorial waters, a nation can set and enforce laws, regulate
use, and exploit resources. UNCLOS also allowed for an additional 12-mile contiguous zone
where a nation could enforce smuggling and immigration laws. Under UNCLOS, ships
from one nation may pass through the territorial waters of another nation under the right
of innocent passage. Under the right of transit passage, military vessels may pass through
the territorial waters of another country when other opportunities do not exist, such as
passing through a strait.

The establishment of exclusive economic zones (EEZs) was one of the most important
features of UNCLOS. Under UNCLOS, each nation has the exclusive right to use, exploit,
or develop any resource that lies within 200 nautical mi (370 km) of its coastline. This
placed 38 million square nautical miles of ocean and seabed under the exclusive control of
individual countries. Virtually all fish stocks, most deep-sea minerals, and nearly 87% of
all offshore oil and gas reserves now lie within a specific EEZ.

Although EEZs carry an obvious economic benefit, the establishment of EEZs has also had
an impact on environmental regulation. Under UNCLOS, a nation has the ability to
conserve the natural resources that lie within its EEZ. Nations can now prevent foreign
nations from depleting fish stocks, extracting minerals, and drilling for oil within its EEZ.
The drafters of UNCLOS envisioned that a nation would be more likely to take precautions
to prevent environmental accidents when the consequences of a disaster would affect its
own coastal ecosystem.

Although UNCLOS is not expressly an environmental treaty, the scope and relatively
universal acceptance of UNCLOS make it one of the most influential treaties regarding the
environment. Part XIII of UNCLOS addresses the protection and preservation of the
marine environment, including the following sources of pollution: land-based pollution,
deep-sea mining, dumping, vessel-source pollution, continental shelf drilling, and pollution
from or through the atmosphere. UNCLOS permits states to enforce their anti-pollution
and other environmental standards throughout their EEZs, except those concerning vessel-
source pollution.

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Each nation has the right to exploit all mineral resources that lie within its EEZ. Although
most minerals are located within the EEZ of a particular nation, Part XI of UNCLOS
addresses mineral resources that lie in international waters. Currently, the technology does
not exist to remove minerals located at such great depths. Part XI established the
International Seabed Authority (ISA) to regulate mining in international waters. The
United States objected to the establishment of the ISA. As a result, the U.S. Senate has not
ratified UNCLOS. The United States is a signatory to UNCLOS, however, and regards all
of its remaining provisions as binding customary international law.

Finally, global climate change has greatly increased the importance of the UNCLOS
provisions regarding the right of foreign ships to pass through another nation’s waters. As
noted, UNCLOS states that a nation’s vessels may pass through the territorial waters of
another nation under the right of innocent passage. In 2007, the loss of Arctic sea ice due to
global climate change led to the opening of the Northwest Passage for the first time in
recorded history. The Northwest Passage provides a shortcut from the North Atlantic to
the Pacific Ocean by passing through a chain of Canadian islands known as the Canadian
Arctic Archipelago. Scientists predict that the Northwest Passage will open regularly
during summer months because of global climate change.
A dispute over international waters erupted over transit through the Northwest Passage.
Most nations, including the United States and most European nations, regard the
Northwest Passage as a strait through which foreign vessels have the rights of innocent
passage and transit passage of military vessels. Canada claims that the Northwest Passage
is part of its internal waters and not part of its territorial waters. A nation may prohibit all
use of its internal waters, including the right of innocent passage. A similar international
dispute is likely to occur when the Northeast Passage, a passage through the Russian
Arctic, is ice-free in the near future. 2

2
http://www.encyclopedia.com/environment/energy-government-and-defense-magazines/united-nations-
convention-law-sea-unclos

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CHAPTER 5
COMMITMENTS MADE BY THE STATE WHO ARE A SUBJECT TO TREATY:-

After a State becomes a party to UNCLOS, it is compelled to bring its maritime claims and
national laws into conformity with its rights and obligations under the Convention. It is a
fundamental principle of international law that a State cannot use its domestic law as an
excuse not to conform to its obligations under an international treaty to which it is a party.
Hence, the provisions of UNCLOS prevail over any contrary provisions in the national
laws of the State.

The Convention mandates member states to promote the development and transfer of
marine technology "on fair and reasonable terms and conditions", with proper regard for
all legitimate interests.

All parties to the Convention are obligated to settle disputes concerning the application of
the Convention through peaceful means. Disputes are coursed through to the International
Tribunal for the Law of the Sea under the UNCLOS to the International Court of Justice
for arbitration. Conciliation is also available and, in certain circumstances, submission to it
would be compulsory.

A vital function of NAMRIA involves the delineation of the national maritime jurisdiction
in accordance with the provisions of the United Nations Convention on the Law of the Sea
(UNCLOS). However, matters related to the Philippines' maritime dispute with China on
the country's claims in the West Philippine Sea are dealt with through the Office of the
President and the Department of Foreign Affairs.

FUNDAMENTAL PRINCIPLES:-

Three fundamental principles pervade the LOSC. The first principle is that States have
some sovereign rights to some portion of the sea adjacent to their sea coastline. The second
principle limits the first; it says that some portion of the sea, the seafloor and the sea-bed

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are shared as part of the "common heritage of mankind." The final principle is that
concomitant with States' rights are States' obligations to preserve the seas and
accommodate the needs of other States.3

STRUCTURE OF THE AGREEMENT:-

The LOSC Agreement is divided into numerous Parts and Annexes which approach the
issues of international relations on the oceans from several perspectives. The Agreement
divides roughly in half. The first eleven Parts deal with spatial issues, and tend to reiterate
long-standing concerns with respect to the seas. The latter Parts deal with functional issues
of use and cooperation and more directly address recent concerns.

Parts II through VI define the extent and nature of coastal States'(6) proprietary interest in
the seas. Parts VII and XI deal with the commonly held areas of the sea and the seafloor,
including the economic rights of all States within these areas.

Part XII, on the other hand, outlines States' responsibility for protecting the marine
environment. Parts XIII and XIV relate to scientific research on the seas, including
transfer of technologies to the developing world. Part XV presents mechanisms for
resolving disputes. Other Parts and the Annexes deal with specific problems, institutional
structures, details of dispute resolution and the operation of the Agreement itself.

3
http://intl.denr.gov.ph/index.php/database-un-conventions/article/14#related-projects

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CHAPTER 6
DISPUTE SETTLEMENT MECHANISMS

The Charter of the United Nations requires all Members of the Organization to settle their
international disputes by peaceful means in such a manner that international peace and
security are not endangered. The United Nations Convention on the Law of the Sea builds
on this commitment by providing a compulsory and binding framework for the peaceful
settlement of all related disputes.

THE CONVENTION AND SETTLEMENT OF DISPUTES:-

Part XV of the United Nations Convention on the Law of the Sea requires that States
Parties to the Convention settle any dispute between them concerning the interpretation or
application of the Convention by peaceful means in accordance with article 2, para. 3, of
the Charter of the United Nations and shall seek a solution by the means indicated in
article 33, para. 1, of the Charter. Where, however, no settlement has been reached, article
286 of the Convention stipulates that the dispute be submitted at the request of any party
to the dispute to a court or tribunal having jurisdiction in this regard. Article 287 of the
Convention defines those courts or tribunals as:
(a) The International Tribunal for the Law of the Sea (established in accordance with
Annex VI of the Convention) including the Seabed Disputes Chamber;
(b) The International Court of Justice;
(c) An arbitral tribunal constituted in accordance with Annex VII of the Convention;
(d) A special arbitral tribunal constituted in accordance with Annex VIII for one or
more of the categories of disputes specified therein.

INTERNATIONAL TRIBUNAL FOR THE LAW OF SEA:_

The International Tribunal for the Law of the Sea is the central forum established by the
United Nations Convention on the Law of the Sea for the peaceful settlement of disputes.
Its seat is at the Free and Hanseatic City of Hamburg, Germany. The Tribunal may sit and
exercise its functions elsewhere whenever it considers this desirable.

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JURISDICTION:-

The jurisdiction of the Tribunal comprises all disputes and all applications submitted to it
in accordance with the United Nations Convention on the Law of the Sea and all matters
specifically provided for in any other agreement which confers jurisdiction on the
Tribunal.
The Tribunal has exclusive jurisdiction, through its Seabed Disputes Chamber, with
respect to disputes relating to activities in the international seabed Area. These matters
include disputes between States Parties concerning the interpretation or application of the
provisions of the Convention, along with those of the Agreement relating to the
Implementation of the Part XI of the Convention, concerning the deep seabed Area; as well
as other categories of disputes as mentioned in article 187, Section 5, Part XI.
The Tribunal, through its Seabed Disputes Chamber, has jurisdiction to provide advisory
opinions at the request of the Assembly or the Council of the International Seabed
Authority on legal questions arising within the scope of their activities.
The Tribunal has special jurisdiction in matters calling for provisional measures. Pending
the constitution of an arbitral tribunal to which a dispute is being sumitted under this
section, any court or tribunal agreed upon by the parties or, failing agreement between
parties to a dispute within two weeks of the request by either party for provisional
measures, the Tribunal, or with respect to activities in the Area, the Seabed Disputes
Chamber, may prescribe, modify or revoke provisional measures.
Where the authorities of a State Party have detained a vessel flying the flag of another
State Party and it is alleged that the detaining State has not complied with the provisions of
the Convention for the prompt release of the vessel or its crew upon the posting of a
reasonable bond or other financial security, the question of release from detention may be
submitted to the any court or tribunal agreed upon by the parties or, failing such
agreement within 10 days from the time of detention, to a court or tribunal accepted by the
detaining state or to the International Tribunal for the Law of the Sea, unless the parties
otherwise agree.

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COMPOSITION
The Tribunal is composed of 21 independent members elected by States Parties to the
Convention on the Law of the Sea from among persons with recognized competence in the
field of the law of the sea and representing the principal legal systems of the world. The
first election was held in August 1996.
Upon their election, the members of the Tribunal will elect a President and a Vice-
President whose term of office shall be three years. The Tribunal also appoints its
Registrar and other officers of the Registry as may be necessary. The President of the
Tribunal, as well as the Registrar, reside at the seat of the Tribunal.
In hearing a dispute, all available members of the Tribunal may sit, although a quorum of
11 members is required to constitute the Tribunal. All disputes and applications submitted
to the Tribunal shall be heard and determined by it, unless the dispute is to be submitted to
the Seabed Disputes Chamber or the parties request that it be submitted to a special
chamber.
The Seabed Disputes Chamber is to be composed of 11 members selected by a majority of
the members of the Tribunal from among them. Members of the Chamber will serve for
three years, and are eligible for re-election. A quorum of seven members is required to
constitute the Chamber.
In addition to the Seabed Disputes Chamber, the Tribunal will form annually a chamber
composed of five of its members which may hear and determine disputes by summary
procedure. The Tribunal will also form special chambers for dealing with a particular
dispute submitted to it if the parties so request. The composition of those chambers will be
determined by the Tribunal with the approval of the parties. Finally, the Tribunal may
form such other chambers, composed of three or more its members, as it considers
necessary for dealing with particular categories of disputes.
Members of the Tribunal may not exercise any political or administrative function, or
associate actively with or be financially interested in any of the operations of any enterprise
concerned with the exploration for or exploitation of the resources of the sea or the seabed
or other commercial use of the sea or the seabed.
Members of the Tribunal may not participate in the decision of any case in which they have
previously taken part as agent, counsel or advocate for one of the parties, or as a member
of a national or international court or tribunal, or in any other capacity.
Members of the Tribunal of the nationality of any of the parties to a dispute shall retain
their right to participate as members. If the Tribunal, when hearing a dispute, includes
upon its bench a member of the nationality of one of the parties, any other party may
choose a person to participate as a member of the Tribunal. In cases where the Tribunal
does not include a member of the nationality of the parties, each of the parties may choose
a person to participate as a member.

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PROCEDURE:-
Disputes are to be submitted to the Tribunal, depending on the case, either by notification
of a special agreement, or by written application, addressed to the Registrar.
The Tribunal and its Seabed Disputes Chamber have the power to prescribe provisional
measures. If the Tribunal is not in session or a sufficient number of its members is not
available to constitute a quorum, the provisional measures can be prescribed by the
chamber of summary procedure. Such measures are subject to review and revision by the
Tribunal.
All hearings before the Tribunal are under the control of its President, and are to be
public, unless the Tribunal decides otherwise or unless the parties demand that the public
not be admitted.
States Parties not party to a dispute but which consider that they have an interest of a legal
nature which may be affected by the decision in any dispute may submit a request to the
Tribunal to be permitted to intervene. Whenever the interpretation or application of the
Convention or any other agreement is in question, the Registrar will notify all States
Parties to the Convention or to such agreements. Those parties have the right to intervene
in the proceedings.
Decisions of the Tribunal are final and shall be complied with by all the parties to the
dispute. However, decisions will not have a binding force except between the parties in
respect of the particular dispute.
Unless otherwise decided by the Tribunal, each party shall bear its own costs.4

4
http://www.un.org/depts/los/settlement_of_disputes/settlement_of_disputes.htm

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REJECTION OF LAW OF SEA TREATY BY UNITED STATES AND REASONS UN
SHOULD RATIFY THE LAW OF SEA:-

PART XI AND THE 1994 AGREEMENT

Part XI of the Convention provides for a regime relating to minerals on the seabed outside
any state's territorial waters or EEZ (Exclusive Economic Zones). It establishes an
International Seabed Authority (ISA) to authorize seabed exploration and mining and
collect and distribute the seabed mining royalty.
The United States objected to the provisions of Part XI of the Convention on several
grounds, arguing that the treaty was unfavorable to American economic and security
interests. Due to Part XI, the United States refused to ratify the UNCLOS, although it
expressed agreement with the remaining provisions of the Convention.
From 1982 to 1990, the United States accepted all but Part XI as customary international
law, while attempting to establish an alternative regime for exploitation of the minerals of
the deep seabed. An agreement was made with other seabed mining nations and licenses
were granted to four international consortia. Concurrently, the Preparatory Commission
was established to prepare for the eventual coming into force of the Convention-recognized
claims by applicants, sponsored by signatories of the Convention. Overlaps between the
two groups were resolved, but a decline in the demand for minerals from the seabed made
the seabed regime significantly less relevant. In addition, the decline of Socialism and the
fall of Communism in the late 1980s had removed much of the support for some of the
more contentious Part XI provisions.
In 1990, consultations were begun between signatories and non-signatories (including the
United States) over the possibility of modifying the Convention to allow the industrialized
countries to join the Convention. The resulting 1994 Agreement on Implementation was
adopted as a binding international Convention. It mandated that key articles, including
those on limitation of seabed production and mandatory technology transfer, would not be
applied, that the United States, if it became a member, would be guaranteed a seat on the
Council of the International Seabed Authority, and finally, that voting would be done in
groups, with each group able to block decisions on substantive matters. The 1994
Agreement also established a Finance Committee that would originate the financial
decisions of the Authority, to which the largest donors would automatically be members
and in which decisions would be made by consensus.
On 1 February 2011, the Seabed Disputes Chamber of the International Tribunal for the
Law of the Sea (ITLOS) issued an advisory opinion concerning the legal responsibilities
and obligations of States Parties to the Convention with respect to the sponsorship of
activities in the Area in accordance with Part XI of the Convention and the 1994
Agreement. The advisory opinion was issued in response to a formal request made by the
International Seabed Authority following two prior applications the Authority's Legal and

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Technical Commission had received from the Republics of Nauru and Tonga regarding
proposed activities (a plan of work to explore for polymetallic nodules) to be undertaken in
the Area by two State-sponsored contractors – Nauru Ocean Resources Inc. (sponsored by
the Republic of Nauru) and Tonga Offshore Mining Ltd. (sponsored by the Kingdom of
Tonga). The advisory opinion set forth the international legal responsibilities and
obligations of Sponsoring States AND the Authority to ensure that sponsored activities do
not harm the marine environment, consistent with the applicable provisions of UNCLOS
Part XI, Authority regulations, ITLOS case law, other international environmental
treaties, and Principle 15 of the UN Rio Declaration.

Since its adoption in 1982, 167 states have joined the treaty, including Russia, China, and
the European Union. But despite its acceptance in much of the world, the U.S. has not
joined the treaty, with the most recent ratification attempt failing to get the requisite two-
thirds of votes in the Senate.Supporters of the treaty trumpet its widespread approval
among the U.S. business community, environmental groups, and the military, which they
say makes it an easy choice for ratification. But critics argue that it is a flawed and
unnecessary treaty that threatens US sovereignty. Recent international disputes over
territorial seas implicating the treaty have affirmed its importance for international law
today, making America’s absence from it all the more significant. They also raise the
possibility that refusal to join the treaty could have adverse affects on America’s interests
at sea.

SUPPORT FOR UNCLOS III

A broad range of U.S. business interests back the Law of the Sea Treaty, including major
oil, fishing, shipping, and telecommunications companies. One of the major features of the
treaty is that it gives a state exclusive control over natural resources and economic
activities within a 200-nautical mile zone extending from its shoreline. This “Exclusive
Economic Zone” (EEZ), as it is aptly termed, would provide clear legal rights to U.S.
companies to explore and exploit resources in the largest EEZ in the world, containing 3.4
million square miles of ocean. For this reason, the President of the U.S. Chamber of
Commerce, in testimony before the Senate Committee on Foreign Relations, unequivocally
supported ratification of the treaty, stating that it would provide “American companies the
legal certainty and stability they need to hire and invest.”

Environmental groups also support the Law of the Sea treaty because it calls on all states to
protect and preserve the marine environment and to prevent pollution of the oceans. It also
gives states jurisdiction over environmental protection and marine science research within

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their EEZ’s. By joining the treaty, environmental groups argue the U.S. could take a
leading role in ocean conservation and preservation issues.

The other major support for the Law of the Sea Treaty comes from the U.S. military. The
U.S. Navy has long supported the treaty as the best way to preserve navigational rights for
its fleet, which is the largest in the world. The treaty grants innocent passage for all vessels
on the high seas (parts of the ocean not controlled by any state) and, crucially, within a
state’s territorial sea, defined as a zone twelve nautical miles from a coastal state’s low
water line. Within this zone, a coastal state has sovereignty over the seabed, subsoil, and
airspace. The treaty would provide a clear legal right for US ships to enter the territorial
seas of other coastal states, which naval commanders argue is vital for national security.
Indeed, support for the treaty is so universal among military leaders that six high ranking
military officials testified before the Senate Committee on Foreign Relations in 2012 to
support ratification of the treaty.

OPPOSITION TO UNCLOS:-

Despite its popularity, some critics argue that UNCLOS is seriously flawed and would
detract from U.S. interests by ceding sovereignty to international organizations and
tribunals. They argue that UNCLOS is unnecessary since customary international law and
other agreements already provide the legal bases for international maritime law. For
instance, these agreements already grant Navy ships the freedom to navigate on the high
seas and no state has or would attempt to block passage of a US vessel through their
waters, both because of US naval supremacy and because they want reciprocal rights to sail
through our seas. So ratifying the treaty would merely signal to other nations that the US
can only secure its rights on the international stage by appealing to institutions favored by
the rest of the world, thereby diminishing US sovereignty.

Critics also argue that the US should not bind itself to international bureaucracies, such as
the International Seabed Authority (ISA) created by UNCLOS to regulate mining activities
on the deep seabed beyond the jurisdiction of any country. These bureaucracies are often
wasteful and hostile to US interests, and the ISA is particularly threatening since there is
no veto for the U.S. Thus the ISA Assembly could potentially amend the treaty without the
consent of the U.S.

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Likewise, opponents of UNCLOS are adamant that joining the Convention would expose
the U.S. to frivolous lawsuits for maritime activities, since it obligates parties to submit
their disputes to a third-party for arbitration. They argue that the treaty would be a
weapon for environmental activist to bring legal claims against U.S. companies and the
Navy. Moreover, Article 296 of UNCLOS provides that judgments rendered in accordance
with the Convention are binding on the parties involves and cannot be appealed, further
infringing on U.S. sovereignty.

UNCLOS TODAY:-

Although ratification of UNCLOS is unlikely today given staunch opposition to it in the

Senate, the treaty remains an essential instrument of international law, particularly for
resolving international maritime disputes. America’s abstention from the treaty is
significant in this context, since as the preeminent naval power in the world it should hold a
leading role in shaping the law of the sea. Instead, other nations are playing a larger role.

For example, the Philippines has taken a leading role in bringing an arbitration case
against China over its infamous nine-dash line claim to the South China Sea. Although
China has refused to take part in the proceedings, the International Tribunal on the Law of
the Sea, established by UNCLOS, has proceeded with the case pursuant to the rules of the
Convention. The U.S. State Department released an official report rejecting China’s claim,
relying on portions of UNCLOS that it said reflect current customary international law.
But custom and practice are malleable and subject to interpretation, which makes China’s
refusal to adhere to the customary maritime zones problematic. China, along with other
states, may soon push the law of the sea in new directions opposed by the U.S. Direct
American participation in UNCLOS would alleviate this concern by affirming a clear legal
basis for resolving maritime disputes.

UNCLOS is also vital to expanding conservation efforts in the oceans and allowing nations
with Arctic coastlines to make legal claims to the oil and gas reserves that lie beneath the
Arctic waters. Denmark, Norway, Canada, and Russia have already used UNCLOS to
make legal claims to the Arctic Ocean and seabed. By abstaining from the treaty, the U.S.
lacks official standing in these important initiatives, which are being taken advantage of by
other nations.

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Ultimately, whether efforts to ratify the Law of the Sea Treaty sink or swim in the U.S., it
remains a crucial instrument of international maritime law, so lawyers in the U.S. must
understand its implications for America’s interests at sea.5

5
http://www.un.org/depts/los/settlement_of_disputes/settlement_of_disputes.htm

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BIBLIOGRAPHY:-
https://en.wikipedia.org/wiki/United_Nations_Convention_on_the_Law_of_the_Sea
https://cil.nus.edu.sg/1982/1982-united-nations-convention-on-the-law-of-the-sea/
http://intl.denr.gov.ph/index.php/database-un-conventions/article/14#related-projects
http://www.un.org/depts/los/settlement_of_disputes/settlement_of_disputes.htm
file:///C:/Users/Lenovo/Downloads/A%20Primer%20on%20the%20Law%20of%20the%2
0Sea%20Convention.pdf
http://berkeleytravaux.com/un-convention-law-sea-u-s-hasnt-ratified-stands-today/

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