- STATES AND ORGANIZATIONS
STATES AND STATES PARTIES
state acknowledged as such by the community of nations (about 160) can become a party to the 1982
Convention by ratification or accession. (Art.
306-307) Instruments of ratification or accession must
be deposited with the Secretary-General of the United Nations,
who is the depository of the Convention. (Art.
319, Para. 1) Once
the Convention has entered into force, a state becomes a State
Party (Art. 1, Subpara.
2(1)) and internationally bound with respect to other
States Parties on the thirtieth day following the deposit of
its instrument of ratification or accession. (Art. 308,
Para. 2) States which
deposit their instruments of ratification or accession before
the entry into force of the Convention become State Parties
and contractually bound to other States (Parties) twelve
months after the date of deposit of the sixtieth instrument of
ratification or accession, as this is the point in time at
which the Convention enters into force. (Art.
308, Para. 1)
Convention mentions “States” alone, e.g.,
but also generalized (“All States”, “Every State”,
“State Party”) and specified (“Coastal State”, “Flag
State”, “Archipelagic State”, “Developing State”,
and so on). But in spite of this variety of expressions, the
Convention speaks to and means only States Parties, i.e.,
states which have consented to be bound by the Convention
(Art. 1, Subpara.
2(1)) until there is a formal denunciation. (Art. 307) Applicable law of the sea between states party to the
Convention and states which are not party to the Convention
must be determined according to legal sources other than the
states have one of the most significant positions in the
1982 Convention. That should come as no surprise as
they not only make up three-quarters of the community of
nations (about 120 of 160 states), but also
have an overwhelming share (over
90%) of world industry, world trade, and world
population. The naval forces of the world are exclusively in
the hands of the coastal states. Then, too, there is tradition:
coastal states have historically had sole influence in matters
of the sea.
the coastal states' interests five decades ago had been
reduced to little more than questions concerning foreign
vessels in a territorial sea with a breadth of three nautical
miles and sometimes, on a small scale, matters related to
fishing, the picture today has changed considerably. The
coastal states have become the "owners" of about
70% of the known non-living and
90% of the known living resources of the oceans; in
addition, they have been vested with more administrative power
with respect to prevention and control of pollution (Art.
56; Part XII) and marine scientific research. (Art. 56; Part XIII)
fact that such a large part of the ocean's riches is now in
the hands of the coastal states is the result of a zone system
established by the Convention (Part II-Part
VI) The extension of administrative power is related to
protection and security interests of coastal states. As far as
pollution is concerned, it is only necessary to call to mind
the disastrous tanker accidents which have occurred since the
1982 Convention provides the necessary framework for
the coastal states' rights and obligations as well as the
limits thereof for the protection of other states' interests.
Other states' interests can be summarized as follows:
Coastal states have to
exercise their powers with respect to pollution and marine
scientific research in a manner which protects and develops
the use of the oceans (Art. 192; Art. 239; Art.
246) and which is conducted with due regard to the
rights and duties of other states; (Art.
56, Para. 2)
deep-sea Area is reserved for mankind as a whole; (Art. 136-137)
high seas (Part VII) or
any part thereof cannot in general be subject to the
sovereignty of any
state; (Art. 89)
The regime of navigation,
which is sub-divided into
(aa) navigation in the territorial sea,
(bb) navigation in the exclusive economic zone, with
the further subdivision of navigation in the contiguous zone,
(cc) freedom of navigation on the high seas, can be
exercised on an equal non-discriminatory basis (Art.
24-26; Art. 42;
Art. 52; Art. 227) around the globe. (Part II-VII)
every Part or section of the Convention has a direct or
indirect impact or reference to the position of coastal states
(See e.g. Art. 116,
Subpara. (b); Art. 142), many
of them ensuring that coastal states do not extend their
interests beyond the limits laid down by the Convention.
3. PORT STATES
Convention, which has no jurisdiction over the internal waters
and ports of a coastal state, refers to “Port
only once with respect to certain investigative and procedural
powers in pollution cases and, most significantly, for cases
of discharge from vessels on the high seas (Art.
218; Para. 1.) or,
at the request of the flag state or the state affected by the
violation, in the zones of other states. (Art.
218, Para. 2) The
is derived from the fact that a state can institute
investigations of such matters which have occurred outside its
own internal waters, territorial sea, or exclusive economic
zone only when the vessel is voluntarily within a port of that
Convention does not define what is meant by discharge, but in
conducting an investigation a port state has to apply
international rules; such an applicable rule might be the
definition of the Convention for the Prevention of Pollution
from Ships 1973 (MARPOL), which establishes that:
in relation to harmful substances or effluents containing such
substances, means any release, however caused, from a ship
and includes any escape, disposal, spilling, leaking, pumping,
emitting, or emptying. (Three exceptions are not given here.)
delegation of power to all states, regardless of whether they
have been affected by such discharge, is significant in light
of the exclusive jurisdiction of the flag state on the high
seas, (Art. 92) even if
such investigations might be suspended at the request of the
flag state (Art. 228) or
of the state within whose zones the violation occurred. This
establishes the principle that other states may take action
against vessels polluting the oceans in spite of the
reluctance or hesitation of the flag state. This global
investigative machinery may have a great influence on the
further evolution of the law of the sea.
flag state is a state which grants vessels using international
waters, regardless of type and purpose, the right to fly its
flag (Art. 91, Para.
1) and, in so doing, gives the ships its nationality.
(Art. 91, Para.
1) This right is to be documented by the flag state.
(Art. 91, Para.
2) The term "flag state" is generally used in
conjunction with non-official vessels (merchant, fishing,
etc.), but it is also used for warships and other official
vessels e.g., (Art. 31; 95)
and in reference to installations, structures, or other
devices, e.g., (Art.
209, Para. 2) and
would also apply to ships employed by the United Nations,
related organizations, (Art.
93) or other entities. (Art.
1, Subpara. 2(2); Annex IX, Art.
interest of flag states in exercising their right of
navigation (Art. 90) has always been quick to conflict with the interests of the
coastal states. Whereas the former want their vessels to be
able to sail the seas with the greatest freedom and the least
interference possible, the latter seek the greatest possible
legislative and enforcement power in order to further their
national interests in the waters near the coast. Until
recently, the flag state's freedom of navigation took priority
over all of the ocean surface except for a small section close
to the coastal state's coastline; under the
1982 Convention, however, the situation has changed.
The flag state's position is affected most by three regimes of
(Art. 17-32) through the
territorial sea, “transit
passage” (Art. 37-44)
through straits, and “archipelagic sea lane passage” (Art.
53-54) through archipelagic waters) and regulations for
the prevention of pollution. (Part
XII, Sec. 5-7)
Nonetheless, there is no change of the flag state's principal
responsibility for and jurisdiction over vessels of its
nationality. The provisions governing the topics mentioned
above exemplify various attempts to strike a balance between
opposing interests, e.g., (Art.
24, 27, 41; Part XII,
Convention uses the term “State of Registry”
in regard to, among other things, installations used for
unauthorized broadcasting from the high seas, (Art.
109, Para, 3)
212, 216, 222) marine scientific research installations,
262) or other structures and devices. (Art.
2) With the exception of a few pollution regulations,
222) the Convention uses the terms “flag
a state's flag”
when referring to vessels, although the flag state is always
to register the vessel, (Art.
94, Subpara. 2(a)i) and is consequently also a State of
. For the purposes of this Convention, “
” and “
” are therefore the same.
the Convention requires that all states fix conditions for the
registration of ships in their territory, (Art.
94, Subpara. 2(a)) a United Nations conference held
under the auspices of the United Nation Conference on Trade
and Development (UNCTAD) adopted in
1986 a convention on conditions for registration of
ships. One of the aims of this registration convention is of a
political and economic nature and related to the topic of “flag
of convenience” refers to a state which registers
foreign-owned vessels, granting the vessel its nationality and
the right to fly its flag, giving the vessel the benefit of
registration fees, annual fees, and taxes which are
considerably less than in other states. In addition to the
detrimental effect on fee scales, such registrations can have
negative results in terms of social benefits and wages of the
crew and the safety standards of the vessel. About
30% of the world merchant shipping tonnage navigates
under three to four flags of convenience such as
. This situation has long been unacceptable for many
developing countries, who believe that it hinders them in
their efforts to build up their own merchant fleets,
and has been criticized by seamen's trade unions in
industrialized countries. The Convention attempts to require a
link” between the register state and the vessel, (Art. 91,
but does not go into detail. However, the Convention does
permit a ship sailing under two or more flags according to
convenience to be assimilated to a ship without nationality,
2) depriving such a vessel of the protection of any
110, Subpara. 1(d)) The meaning of a “genuine
link” is described by the UN Convention on Conditions for
Registration of Ships,
1986, which requires participation of nationals of the
flag (register) state in ownership, manning, and management of
the vessel. The register state may choose between “manning”
but at least one of these conditions must be met.
archipelago is a “group of islands” which in some way
forms an intrinsic unit. (Art.
46, Subpara. (b)) As early as the
questions about the treatment of groups of islands arose in
conjunction with discussions of the territorial sea concept,
but this had more to do with the inclusion of coastal islands
than the status of a mid-ocean group of
The discussion focused on the problem of where the baseline
dividing the internal waters from the territorial sea should
be drawn. The
1960 Conferences on the Law of the Sea did not
recognize mid-ocean archipelagos, although the states
concerned were even then seeking a specific solution. A global
solution could be found only after an economic zone of two
hundred nautical miles had been accepted. The two leading
proponents of a concept of a mid-ocean archipelago,
, then received the-solution they had long urged. During the
early stages of the
1973-1982 Conference, the Indonesian foreign minister
has always considered its land, water, and
people to be inseparably linked to each other; the survival of
the Indonesian nation depended on the unity of these three
in 1961 had passed laws
declaring the waters between the islands to be inland waters.
Convention has now created a new legal concept (Part
IV) which is based on two principal elements: the unity
doctrine of archipelagic states (Art.
49) and the concept of archipelagic sea lane passage
through the archipelagic waters. (Art.
following countries already apply (or might be interested in
applying) the archipelago concept: Indonesia, Philippines,
Tonga, Fiji, Mauritius, Bahamas, Papua New Guinea, Madagascar,
West Samoa, Maldives, and Micronesia (non-exclusive list).
GEOGRAPHICALLY DISADVANTAGED STATES
disadvantaged states are those states which have direct access
to the sea, but which because of geography (e.g., a relatively
short coastline) feel that they are at a disadvantage in
comparison with other states. In the context of fishing rights
in the exclusive economic zone, the Convention defines
“geographically disadvantaged states”
as coastal states, including states bordering enclosed or
semi-enclosed seas, whose geographical situation makes them
dependent upon other coastal states (which are not
disadvantaged) in the subregion or region, and coastal states
which can claim no exclusive economic zone of their own. (Art.
70, Para. 2)
Prior to the Conference and during the Conference itself,
these states worked together closely with the land-locked
states, as they were annoyed by the blunt manner in which the
non-disadvantaged coastal states (a group of about eighty
states) pushed for an exclusive economic zone with a limit of
two hundred nautical miles. In spite of this, they found
themselves in a weak position in the Convention. To be sure,
they have the right to participate on an equitable basis with
the coastal state of the same region or subregion in the
exploitation of an appropriate part of the surplus of the
living resources. (Art. 70,
Para. 1) But this right
is only very rarely enforceable. (Art.
70, Para. 5; Art.
71; Art. 297,
Para. 3) Geographically
disadvantaged states are also to be given the opportunity to
participate in proposed marine scientific research projects of
coastal states. (Art. 254)
For all practical purposes, the geographically disadvantaged
states were unable to achieve any more. The situation does
improve slightly if the state is also a developing country,
e.g., (Art. 70, Para.
4; Art. 148; Art.
269, Subpara. (a))
the time of the 1973-1982 Conference, the following states considered themselves to
be geographically disadvantaged (list not necessarily complete):
, German Democratic Republic,
United Arab Emirates
9. LAND-LOCKED STATES
are about thirty land-.locked states, which means that roughly
one-fifth of the members of the community of nations have no
direct access to the sea, or, as defined by the Convention,
are states which have no sea-coast. (Art.
124, Subpara. 1(a)) Although this number is high, the
actual impact of these states on global economic and
population figures is rather slight. But this basic
disadvantage forces them to find reasonable and reliable
access to regional or global communication and transport
systems on the basis of established international law. The
first efforts on the part of these states to carve out a niche
for themselves in this respect (other than certain bilateral
agreements) were made at the Barcelona Conference of
1921, later at a United Nations Conference on Trade and
Employment, in Havana in
1948, then at various conferences, including the
1958 Conference on the Law of the Sea, which adopted
the first small step for establishing a global legal framework
(1958 Convention on the High Seas, Art.
as a result of the Ambassador Arvid Pardo proposal in
1967 the Sea-Bed Committee was instructed to discuss
the future of the sea-bed, the land-locked states were anxious
to place their problems on the agenda as well. In
1970, the UN General Assembly instructed the
Secretary-General to prepare a study
the question of free access to the sea of land-locked
countries, with a report on the special problems of
land-locked countries relating to the exploration and
exploitation of the resources of the sea-bed and the ocean
far as the sea-bed is concerned, the land-locked states did
not get preferential access to sea mining, not even in the
Area. (See Art. 141; Art. 148, 152, and 160, Subpara. 2(k)
apply only to developing countries) The right of participation
in coastal states fisheries (Art. 69) is weak, (Art. 69, Para.
3; Art. 71) and the right of transit Part X still depends to a
considerable extent on the willingness of the transit state to
co-operate; (Art. 125, Para. 2-3) nonetheless, the Convention
includes some improvements compared to the period prior to
1982. Land-locked states may also participate in marine
scientific research. (Art. 254)
only guarantees for land-locked states found in the Convention
are the right of navigation (Art. 90) or participation in the
freedom of the high seas (Art. 86) and the right to equal
vessels in maritime ports. (Art. 131) The following is a list
of land-locked states:
Burkina Faso, Burundi, Central African Republic, Chad,
Malawi, Mali, Niger, Rwanda, Swaziland, Uganda,
means a state, with or without a sea-coast, situated between a
land-locked state and the sea, through whose territory traffic
in transit passes. (Art. 124, Subpara.
1(b)) The Convention does not use the term in any other
context than the right of access of land-locked states to and
from the sea and freedom of transit. (Part X)
11. DEVELOPING STATES
160 state members of the United Nations, more than
100 are developing states. The answer to the question
of who is a developing state depends on the judgement of each
state itself, on whether it feels comparable or competitive
with or as developed as the industrialized or developed states.
The Convention does not offer any help in this respect; it
refers only to developing states in general, and, rarely, to
developing geographically disadvantaged or land-locked states,
e.g., (Art. 148;
4) In December
1967, the United Nations General Assembly instructed
its Secretary-General to study the interests and needs of
developing states with respect to the deep-sea area and the
proposed Mining Authority, a consideration of preferential
treatment which was made part of the
1970 Assembly Declaration of Principles governing the
Convention provides numerous provisions designed to promote
and support the growth of developing countries. Three broad
themes intended for the benefit of developing states can be
found in the Convention: co-operation (a), training (b), and
preferential treatment (c).
Although the Convention requires states in general to
co-operate, (e.g., Preamble, Art.
118, 138, 197, 242, 270) it implies the need for
particular care for and co-operation with developing countries.
The most significant examples can be found in the provisions
governing the Area, as they are applicable for all states, (e.g.,
and marine scientific research, whether conducted in the Area
3) or in general to strengthen the coastal state's own
technological and research capabilities through development
and transfer of marine technology. (Art.
In addition to the benefits of co-operation aimed at closing
the technological gap, developing countries are to receive
technical assistance to aid them in setting up programmes for
the full and satisfactory protection of the marine environment.
Furthermore, adequate education and training of scientific and
technical personnel is to be provided, (Art.
2) including the establishment of national and regional
marine scientific and technological centres. (Art.
The most effective and supportive provisions for developing
states might one day turn out to be those vesting the Sea-Bed
Authority with powers and obligations for preferential
treatment of developing states. These powers cover several
aspects. In addition to support to be given by all states (and
by the Sea-Bed Authority), (Art. 143,
148) the Authority is to acquire technology and
training programmes from contractors operating in the Area
144, Subpara. 1(a); Annex III, Art.
5, Para. 3&15) and transfer it to developing
144, Subpara. 1(b)) The Authority is to show preference
to these countries when considering the use of revenues (Art. 150,
Subpara. (f); Art.
160, Subpara. 2(f)) and pay compensation to those
developing countries which suffer serious adverse effects on
their export earnings as a result of the mineral policy of the
Authority or of exploitation of minerals from the Area. (Art.
150, Subpara. (h); Art.
2(1)) A general clause of the Convention is open enough
to allow further supportive measures for developing countries
on the part of the Authority (Art.
274) as long as such measures can be covered by the
term “activities in the Area”.
from these broad themes, developing countries which are
land-locked, (Art. 124,
Subpara. 1(a)), geographically disadvantaged, (Art.
2) or border enclosed or semi-enclosed seas (Art.
2) have only weak preferential access to fishing in
exclusive economic zones of developed coastal states located
in the same area. (Art.
71) But there is another, small supportive measure by
the Convention which cannot be found directly in the text.
Some provisions are a compromise between the “desirable
and the “obtainable
e.g., in the provision defining the flag state duties which
requires only compliance with generally accepted regulations
5) or for pollution from land-based sources (taking
into account), (Art.
4) so that developing states will not be overburdened
with excessive investments for the time being.
12. UNITED NATIONS ORGANIZATION
United Nations has been deeply involved in the development of
the law of the sea since the organization's founding in the
1940's. It is doubtful that the community of nations would
have reached the present standard of law governing the sea if
there had not been a system of international organizations
able and willing to act on the proposals of its members, such
as that of the
delegate, Arvid Pardo, in
1967. One can also wonder whether an international
conference such as the
1973-1982 Conference would have been held, much less
succeeded, if it had not been for the United Nations and the
support of its administrative machinery. The active participation
of various United Nations organs or conferences in certain
fields or their studies and recommendations will have had an
impact on the drafting of the Convention.
Particular mention should be made of the UNEP (United Nations
Environmental Program) for its work on regional action plans,
(Art. 197; in particular, Art. 123, Subpara. (b)) e.g., Kuwait
Regional Convention for Co-operation on the Protection of the
Marine Environment on Pollution 1978, and UNCTAD (United
Nations Conference on Trade and Development) for its work
concerning registration of ships and the “genuine
(Art. 91; Art. 92, Para. 2) and the transfer of technology,
e.g., (Art. 266)
United Nations is in charge of conducting the administrative
part of the Convention. One of its organs, the
Secretary-General, is the depository of the Convention (Art.
319) and denunciations are to be addressed to him. (Art. 317)
The Secretary-General is to communicate with the States
Parties, the Authority, and competent international
organizations (Art. 319) concerning all matters relevant to
the Convention and is to take the necessary steps concerning
amendments in due time and in accordance with the Convention.
(Art. 312-314) The Secretary-General is to be supplied with
charts and lists which show limit lines or geographical
co-ordinates drawn by coastal states. (Art. 16; Art. 47, Para.
9; Art. 75; Art. 76, Para. 9; Art. 84) The United Nations may
employ vessels in its service, and these can fly the flag of
the United Nations. (Art. 93)
13. OTHER INTERNATIONAL GOVERNMENTAL
international governmental organizations can be divided into
two groups. One group works on a global basis, as Organs of
the United Nations or are related to it in some degree. The
latter are basically independent, have constitutions of their
own, and states become members only by means of a separate
procedure for each organization. The other group is often
established only for regional or specific purposes and is open
only to certain countries, but such organizations can also
have global character. Many such organizations attended the
1973-1982 Conference as observers. (See Appendix to
Final Act) The importance of three organizations will be
Maritime Organization (IMO)
This is by far the most important organization for all matters
concerning vessels, and this fact can be seen quite clearly in
the Convention. The most important regulations which can be
traced backed to IMO conventions are those concerning the
safety of ships, including manning, signal and radio
communication, and qualification of crew, (Art.
3-4) search and rescue, (Art.
2) prevention of collisions (Art.
94, Subpara. 3(c)) including traffic separation schemes
53) and the involvement of the organization in the
implementation of such schemes, (Art. 22,
Subpara. 3(a); Art.
9) documents and precautionary measures by
nuclear-powered merchant vessels and vessels carrying
dangerous cargo, (Art.
23) and last but not least prevention of pollution e.g.,
Labour Organization (ILO)
A large number of ILO conventions, which make up the
International Seafarer's Code, are concerned with working
conditions of seamen. The
1982 Convention honours these conventions by urging
States Parties to take measures governing labour conditions
which conform to generally accepted international regulations.
94, Subpara. 3(b), Para.
Nations Food and Agriculture Organization (FAO)
This organization and its committees on fisheries influenced
to a large extent the provisions on utilization and
conservation of fish resources. (Art.
14. CO-OPERATION - "COMPETENT
1982 Convention contains numerous directives for co-operation
between states, (e.g., Art. 123) between states and
international organizations, (e.g.. Art. 199) and between
international organizations, (e.g.. Art. 278) Apparently the
co-operation required between states and international
organizations will ultimately be of greatest importance for
the effectiveness of the Convention, as this enhances the
prospects of efficient enforcement of the Convention as well
as unification and development of the law of the sea. Terms
often used in this context include “States and competent
international organizations shall...”,
(e.g., Art. 242,
. 1) “States, in co-ordination with the competent
international organization”, (e.g., Art. 276, Para. 1) and
“States, acting through the competent international
organization”. (e.g.. Art. 211, Para.1)
competent international organizations for the various parts of
the 1982 Convention are as follows (non-exhaustive list):
International Maritime Organization
UN Conference for Trade and Development
and Agriculture Organization
economic and technology branch of UN
UN Environment Programme
International Maritime Organization
International Atomic Energy Agency
UN Educational, Scientific, and Cultural
Industrial Development Organization
ORGANIZATIONS AS PARTIES
Convention provides the opportunity for inter-governmental
organizations to become "states parties" to the
Convention. (Art. 305, Subpara. 1(f) (306-307); Annex IX, Art.
3) This possibility was implemented under pressure from the
member states of the European Economic Community (EEC). This
move came about as a result of the fact that EEC institutions
have certain powers, such as the conclusion of treaties and
the establishment of internal rules in fisheries and in
certain pollution matters.
prospect of sea-bed mining gives the so-called "EEC
clause" an even more interesting feature. The status of
an acceding organization will more likely be that of a
principal and agent rather than of a "state party,"
as a state party remains a "state party to the
Convention" regardless of how much competence in matters
governed by the Convention (AIX, Art. 1) it might have
transferred to the organization, although corresponding rights
(e.g., voting) will be affected accordingly. The handling of
the "EEC clause" might prove to be somewhat
European Economic Community
was the only inter-governmental organization to sign the