The United Nations Convention on the Law of the Sea. The year 2012 marks the 30th anniversary of the opening for signature of the 1982 United Nations Convention on the Law of the Sea (“UNCLOS” or “the Convention”), which, as at 24 October 2012, has 164 parties, including the European Union. Ecuador and Swaziland deposited their instruments to become party on 24 September 2012. UNCLOS was opened for signature at Montego Bay, Jamaica, on 10 December 1982 and entered into force on 16 November 1994. One of its implementing agreements, namely the 1994 Agreement relating to the implementation of Part XI of UNCLOS, was adopted on 28 July 1994 and entered into force on 28 July 1996.
The regime for oceans and seas established by ‘UNCLOS’ deals with a wide range of issues on ocean affairs and recognizes that the problems of ocean space are closely interrelated and need to be considered as a whole.
Oceans are key to sustaining life on the planet. They cover more than 70% of the Earth and they constitute one of the most essential bases for human life, either because of the richness of their living resources and unlimited energy sources, or simply because, by connecting us all, oceans offer an essential means of transportation for people and trade. Marine biodiversity among other things, produces a third of the oxygen we breathe, moderates global climate conditions, and provides valuable source of protein for human consumption. Furthermore, the potential energy output derived from oceans well exceeds current and future human energy needs. Finally, 80% of the volume of global trade is seaborne; representing 70% of its value, which is expected to increase by 36% by 2020.
Limits of Maritime Zones
Under the Convention, a coastal State is entitled to a territorial sea not exceeding 12 nautical miles measured from its baselines. Within its territorial sea, the coastal State exercises sovereignty, including over its resources. Subject to the provisions of the Convention, ships of all States enjoy the right of innocent passage through the territorial sea. The Convention also grants a coastal State the right to establish a contiguous zone not extending beyond 24 nautical miles from the baselines. Within its contiguous zone, the coastal State may exercise the control necessary to prevent and punish infringement of customs, fiscal, immigration or sanitary laws and regulations that have occurred within its territory or territorial waters and to control, in specified circumstances, the trafficking of archaeological and historical objects. In addition, a coastal State may establish an exclusive economic zone not extending beyond 200 nautical miles from its baselines, where the coastal State has sovereign rights for the purposes of exploring and exploiting, conserving and managing natural living or non-living resources of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds. In the exclusive economic zone, the coastal State has jurisdiction with regard to the establishment and use of artificial islands, installations and structures, marine scientific research and protection and preservation of the marine environment.
Further, under the Convention a coastal State exercises sovereign rights over its continental shelf for the purpose of exploring and exploiting its mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species. These rights are inherent and do not depend on occupation, effective or notional, or on any express proclamation. The Convention also gives coastal States jurisdiction over their continental shelf with regard to the establishment and use of artificial islands, installations and structures; drilling of the continental shelf; cables and pipelines constructed or used in connection with exploration of the continental shelf and exploitation of its natural resources or to the operations of artificial islands, installations and structures; marine scientific research; and the prevention, reduction and control of pollution of the marine environment arising from or in connection with seabed activities.
Pursuant to the Convention, the continental shelf comprises the seabed and subsoil of the submarine areas that extend beyond the territorial sea of coastal States up to 200 nautical miles from the baselines. In the cases in which the continental shelf extends beyond 200 nautical miles from the baselines, coastal States are required by the Convention to submit information on the outer limits of the continental shelf beyond 200 nautical miles to the Commission on the Limits of the Continental Shelf for its consideration. The Commission makes recommendations to coastal States on matters related to the establishment of the outer limits of their continental shelf. The limits of the continental shelf established by a coastal State on the basis of the recommendations adopted by the Commission are final and binding.
All parts of the sea that are not included in the exclusive economic zone, the territorial sea or the internal or archipelagic waters of a State, are known as the high seas. On the high seas all States have the freedom of navigation, of overflight, to lay submarine cables and pipelines, to construct artificial islands and other installations, of fishing, and of scientific research. These freedoms must be exercised with due regard for the interests of other States in their exercise of the freedom of the high seas. The seabed and ocean floor and subsoil thereof beyond the limits of national jurisdiction constitute the “Area”. The Convention provides that the Area and its resources are the “common heritage of mankind”. In this context, the Convention defines “resources” as “all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed, including polymetallic nodules.”
No State can claim or exercise sovereignty or sovereign rights over any part of the Area or its resources, nor can any State or natural or juridical person appropriate any part thereof. On the contrary, all rights in the resources of the Area are vested in mankind as a whole. An organization established by the Convention, the International Seabed Authority, organizes and controls activities in the Area, particularly with a view to administering resources in the Area.
The Convention provides that activities in the Area shall be carried out for the benefit of mankind.
Both the high-seas and the Area can only be used for peaceful purposes.
b. Rights of passage and navigation
The Convention preserves the right of innocent passage for foreign ships in the territorial sea of a coastal State. Additionally, ships and aircraft of all States are allowed “transit passage” through straits used for international navigation and States bordering such straits can regulate navigational and other aspects of transit passage. In the exclusive economic zone and on the high seas, all States including land-locked States have the freedom of navigation. Land-locked States also have the right of access to and from the sea and the right to enjoy freedom of transit through the territory of transit States.
The States Parties to this Convention
Prompted by the desire to settle, in a spirit of mutual understanding and cooperation, all issues relating to the law of the sea and aware of the historic significance of this Convention as an important contribution to the maintenance of peace, justice and progress for all peoples of the world,
Noting that developments since the United Nations Conferences on the Law of the Sea held at Geneva in 1958 and 1960 have accentuated the need for a new and generally acceptable Convention on the law of the sea,
Conscious that the problems of ocean space are closely interrelated and need to be considered as a whole,
Recognizing the desirability of establishing through this Convention, with due regard for the sovereignty of all States, a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment,
Bearing in mind that the achievement of these goals will contribute to the realization of a just and equitable international economic order which takes into account the interests and needs of mankind as a whole and, in particular, the special interests and needs of developing countries, whether coastal or land-locked,
Desiring by this Convention to develop the principles embodied in resolution 2749 (XXV) of 17 December 1970 in which the General Assembly of the United Nations solemnly declared inter alia that the area of the seabed and ocean floor and the subsoil thereof, beyond the limits of national jurisdiction, as well as its resources, are the common heritage of mankind, the exploration and exploitation of which shall be carried out for the benefit of mankind as a whole, irrespective of the geographical location of States,
Believing that the codification and progressive development of the law of the sea achieved in this Convention will contribute to the strengthening of peace, security, cooperation and friendly relations among all nations in conformity with the principles of justice and equal rights and will promote the economic and social advancement of all peoples of the world, in accordance with the Purposes and Principles of the United Nations as set forth in the Charter,
Affirming that matters not regulated by this Convention continue to be governed by the rules and principles of general international law.
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HTML – United Nations Convention on the Law of the Sea of 10 December 1982
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