Convention is a comprehensive political and legal work which
includes directives for international politics, international
relations, and international law. It is a new international
order for the oceans of the world, which make up five-sevenths
of the planet's surface. The Convention's 320 articles, which
are divided into seventeen main parts, take into account all
legal aspects of the ocean space; nine annexes dealing with
specific matters are attached to the Convention, but are
integral parts (Art. 318). In many areas the Convention does
not lay down a detailed scheme of regulations; instead, it
provides a general legal framework within which states parties
are required to act (e.g.. Art. 194) or may act, (e.g., Art.
21) put other conventions or treaties into effect, (e.g., Art.
211, Para. 2) or conclude agreements (e.g., Art. 125, Para.
2). The Convention is designed and structured to be applied
without prejudice for any laws or rules which may previously
exist or which may be made in future, (e.g., Art. 237, Para.
1; Art. 304) while at the same time binding such laws, rules,
and agreements of state to the general objectives and
principles of the Convention, (e.g.. Art. 237,
. 2; Art. 311,
. 3-6) Moreover, the Convention distinctly manifests political
principles and programmes such as, "The high seas shall
be reserved for peaceful purposes," (Art. 88) "The
Area and its resources are the common heritage of mankind,"
(Art. 136; Art. 311, para. 6) or, States have the obligation
to protect and preserve the marine environment. (Art. 192) Its
quality of general application and its basic impact on all
matters concerning the ocean give the Convention the status of
a constitution for the oceans.
2. Impact of the Four UN Conventions on the Law of the Sea of
subject matter of all four Geneva Conventions of 1958 was
under discussion at the Conference. These conventions have all
been incorporated into the 1982 Convention, with varying
degrees of change and amendment for improvement and to make
them more consistent with each other and the further
provisions. For states parties to the 1982 Convention, the
later Convention prevails over those of 1958 (Art 311, Para.
3. Significant Achievements
the course of its work, the Conference was able to solve
highly controversial matters and make important innovations.
Far-reaching innovations such as the "Dispute Settlement
System" (Part XV) and the Sea-Bed Regime (Part XI) may
even have revolutionary impact on relations between states in
many other fields besides maritime operations. Other major
(1) Solving the question of the breadth of
the territorial sea (Part II, Art. 3), which had
remained open from the 1958/1960 conferences;
(2) Regulation of the fishing rights of
coastal states by implementing the exclusive economic zone
(Part V, Art. 56-57);
(3) Fundamental change in the continental
shelf concept of the Convention of 1958 (Part. VI, Art. 76);
(4) Concept of transit passage through
straits (Part III, Art. 38) and archipelagic waters (Part IV,
Art. 53) for international navigation;
(5) The concept of archipelagic states (Part
(6) The obligation to engage in international
co-operation in general (e.g., Art. 118, conservation and
management of living resources; Art. 242, marine scientific
research) and the development and transfer of marine science
and technology to developing countries (e.g. Art. 150, Subpara.
(d); Art. 274, Area; Art. 202, prevention of pollution; Art.
275-277 scientific and technological centres);
(7) The concept of a comprehensive
environmental law (Part XII).
this list is not complete, it does give some idea of the
general magnitude of the achievements of the Conference. It is
said that the Convention may, in addition to its technical and
substantive regulations, affect other matters as well such as
questions of disarmament and of a new international economic
order. A provision which declares, "The sea-bed (Area)
shall be open to use exclusively for peaceful purposes,"
(Art. 141) could
influence military actions, and the concept by which an
international authority such as the Sea-Bed Authority (Part
XI, Section 4) is
obliged to promote just and stable prices remunerative to
producers and fair to consumers for minerals derived both from
the Area and other sources (Art. 150, Subpara. (f); Art. 160,
. 1) can challenge the
concept of the free market economy.
4. The Limits
The achievements mentioned above are
without exception the result of long, tedious struggles for
compromise. Even so, these compromises could quite often be
reached only by leaving some questions open or by using vague,
ambiguous, and even almost contradictory language. Thus the
right of land-locked states to the sea is in practice weakened
by the transit state's right to request an advance agreement
on terms and modalities (Art. 125, Para. 2) and the supremacy
of the transit state's "legitimate interests," while
at the same time the meaning of the term is left open. (Art.
125, Para. 3) Other such examples are the term "innocent
passage" (Art. 19) or the term straits used in
international navigation; (Art. 37) in both cases, the
articles were drafted so as to avoid a clear definition.
is said that the Convention also employs the "technique
of silence." This might be the case with respect to the
polar areas and military actions, but whether this is actually
"silence" or not will depend on the individual
viewpoint. However, all matters not regulated by the
Convention continue to be governed by the rules and principles
of general international law. (Preamble, last paragraph)
5. "Equality" -
Equal Rights for All?
regime of the oceans established by the Convention brings
about 40% of the ocean space partly or wholly under the
national jurisdiction of coastal states. This space
encompasses the most valuable and most easily accessible
resources of the oceans; 100% of the presently exploitable
hydrocarbon deposits in the sea (85% of all known deposits)
and about 90% of the commercial living resources are to be
found in this area. Of this 40% subject to the jurisdiction of
individual states, about half will fall to only a dozen or so
coastal or archipelagic states, while the remainder (about 20%
of the ocean space) will be partitioned out to the remaining
120 coastal states, including the so-called geographically
disadvantaged coastal states (there are about thirty of the
latter). Of the dozen coastal states thus highly favoured,
more than half, such as the
(including the Dominions),
are highly developed countries. The approximately thirty
land-locked states, fourteen of which are in
, receive no benefit from the ocean space under their
jurisdiction. But all states share the same rights and
obligations in the remaining 60% of the ocean space: the high
seas, the deep sea area, and its resources.
light of these figures, can the Convention be justified in
claiming to be an equitable result of the Conference?
Conference was instructed to deal with the establishment of an
international regime for the deep sea-bed area and its
resources and, inter
alia, with questions of the continental shelf and
fishing on the high seas, including the question of the
preferential rights of the coastal states. In coming to the
conclusion that the rights of coastal states should take
priority over about 40% of the ocean space and that all states should have equal rights
in the remaining 60%,
the Conference has done nothing but fulfil its task. The
question could also be considered in the context of the
Charter of the United Nations of
1945, which in Chapter I, Purpose and Principles of the
United Nations, requires that friendly relations among nations
be developed, based on respect for the principle of equal
rights, and that international co-operation be achieved in
solving international problems of an economic, social,
cultural, or humanitarian character. By convening the
Conference on the basis of equal rights for all states, the
General Assembly adhered to the principles of the Charter.
question is whether the economic effects resulting from the
Convention are in the interest of mankind as a whole and, in
particular, of the developing countries, a major objective of
Ambassador Arvid Pardo's proposals in
6. Major Objections to the Convention
the last two years of the Conference, the United States
took a new approach to the negotiations after Ronald Reagan
became President. On July 9,
1982, he announced in a statement that the USA
would not sign the Convention. Attempts before and after this
statement to alter the Convention so as to gain the support of
the United States
remained unsuccessful. The key concern of the United States at
that time was to ensure the access of its nationals to deep sea mining, to avoid any deterrence to mining, and to prevent the
monopolization of the resources (Reference: Art.
150) by the operating arm of the Sea-Bed Authority.
Otherwise, the regime of the deep sea would become an
unrealistic dream, and its centralized and anti-free market
provisions, a set of precedents for the use of enormous power
by an international institution, would be uneconomical. Later,
certain problem fields such as tuna fishing (Reference: Art.
64; Annex I) and the compulsory transfer of deep sea
mining technology (Reference: Annex III, Art.
5, Subpara. 3(b)) were also criticized.
also objected to the regime of deep sea mining and concluded
an agreement with
and the United States
concerning interim arrangements relating to polymetallic
modules of the deep sea in September
7. A New Economic Order?
Convention is often mentioned in conjunction with the
expression "new international economic order."
This expression emerged in the
mid-1970s as a result of the oil shortage and resultant
price increases in those years and was the subject of UN
resolutions. The central theme was "interdependence"
and focused on the relationship between industrialized and
non-industrialized countries. One important aspect was
transfer of technology. This has found its way into the
Convention with respect to mining technology in the Area,
(Art. 144) the
development of marine technology and, more generally, the
transfer thereof, (Part XIV)
such as the specific case of the transfer of technology for
the prevention of pollution. (Art.
202) Some regulatory impact on the ore commodity market
can also be expected from the power delegated to the Sea-Bed
Authority. (Art. 150-153)
Detractors of the Convention are suspicious that these
measures contain elements creating precedents for a new
economic doctrine undermining democratic capitalism and the
principles upon which that system is based. These elements
would be the pacing of the development of the resources of the
seabed according to market demand, the monopolization of the
resources, and a system of compulsory transfer of technology.
is almost impossible to conduct a fruitful discussion of
criticism which is based more on ideological grounds than on
factual evidence. Except for the concept of the common
heritage of mankind, the systems of 'deep-sea mining and
transfer of technology are more in the nature of political
programmers than they are concrete plans readily subject to
analysis or even predictions of how the system will work in
the future. Democratic capitalism is itself static in practice,
and neither the basic requirement of the Convention to
co-operate nor any specific regulations undermine any
principle. A negative attitude towards co-operation could have
a greater impact on principles than any regulation of the
Convention. In actual fact, an increased awareness on the part
of the world's population of the importance of the oceans
would in many cases be of advantage for industrialized
countries. And have these countries not already benefited from
the concept of the exclusive economic zone and the "package"
deal in general? Although countless prognoses can be made with
respect to mining in the Area and the impact of such
operations, any such predictions concerning the use of the
oceans in future can be only speculative and cannot be
presented as unavoidable. The oceans themselves remain
mysterious, relentless, and the source of constant surprise
for the imagination of humanity.
8. Provisions, for Entry into Force
Convention was open for signature (Art.
305, Para. 1)
from December 10, 1982 to December 9, 1984.
(Art. 305, Para. 2) 119 states signed the Convention on the opening day for
signature at Montego Bay/Jamaica. As of the closing day, a
total of 155 states and
the Cook Islands, the European Economic Community,
had signed. (Art. 305,
Subpara. l(b-f)) As of 1987,
the Convention had been ratified by more than thirty states
, represented by the United Nations Council for
Namibia. (Art. 305,
1(b)) The ratifying states come from the following regions:
eight from Asia, sixteen from Africa, eight from Latin
America, and two from Europe (
provided by : the UN-Division for Ocean Affairs and the
Law of the Sea,
Convention does not enter into force until twelve months after
the date of deposit of the sixtieth instrument of ratification
or accession. (Art. 308,
Para. 1) Depository is
the Secretary-General of the United Nations, (Art.
319, Para. 1) who
is also responsible
preparing and circulating reports on issues related to the
(Art. 319, Para. 2)
9. The Importance of Having Signed the Convention
signing of the Convention between
1982 and 1984 has two effects for the signatory states. First, the states
are obligated not to act in a manner which would defeat the
object and purpose of the Convention unless the state makes
clear that it does not intend to become a party to the treaty.
Second, the signatory states obtain the right to participate
as full members in the Preparatory Commission for the
International Sea-Bed Authority and for the International
Tribunal for the Law of the Sea, and under certain
circumstances may commence preparatory work for deep sea
mining before the Convention enters into force. States which
have signed only the Final Act may act as observers, but they
are not entitled to participate in the taking of decisions.
The Preparatory Commission was to begin work when fifty states
had signed the Convention, which was already the case on
December 10, 1982. The
Commission has indeed taken up its work.
10. Practice of the States in Recent Years
states' practice of claiming sovereign rights in zones of
varying sizes continued throughout the sessions of the
Conference and into the 1980s.
Today almost all coastal states have established a territorial
sea (Art. 3) of twelve
nautical miles or more. The number of contiguous zones (Art.
33) established is significantly lower, but exact
figures are difficult to obtain, as many of the claims do not
adhere to the applicable provision of the Convention, (Ibid)
either in terms of the extent of such a zone or of the rights
granted therein. The trend of the
1960s to claim exclusive fishing rights beyond the
territorial sea was forgotten in the rush to establish an
exclusive economic zone (Art. 56, 57) of up to two hundred nautical miles. By the end of the
Conference, about seventy claims of exclusive economic zones
had been made, and this number grew to about eighty-five by
1985 (including about twenty claims by territories,
etc.). Continental shelf claims rose sharply during the
1970s, but only a few have been made in the
1980s. The coastal states' right to a continental shelf
off its coast exists ipso
facto today (as undisputed international law), and
is not dependent on proclamation or occupation. (Art.
77, Para. 3)
summary, it can be said that the most beneficial aspects of
the Convention, namely the establishment of rights for the
coastal states, have already "entered" into force.
came into force in 1994, a year after Guyana
the 60th nation to sign the treaty.
All book text has been written in 1987, including the
following two sections!
11. What is the Law of the
the 1982 Convention has not yet entered into force, the reluctance of
and other countries to act constructively and the self-serving
"enactments" by the coastal states have created a
legal environment which can only be described as gloomy and
falling far short of the goal of law to provide stability,
predictability, and justice. This preliminary note must be
kept in mind in order not to be misled by the following
principle, the law that is in force today on any particular
issue related to the oceans is still basically derived from
the four 1958
Conventions and customary international law. To a large extent,
this law is now represented in the provisions of the
1982 Convention. In other words, the
1982 Convention has absorbed (for the most part) the
four 1958 Conventions on
the Law of the Sea and unwritten customary law. The provisions
which are not identical with the pre-1982 Conventions on the
Law of the Sea, but which are practiced by the states, may
become customary law, while other provisions of the
1982 Convention not practiced would only become
applicable when the Convention enters into force.
Day-to-day practice will not highlight any differences,
and the 1982
Convention will be seen as representing the law of the sea.
Thus the 1982 Convention
serves as an excellent guideline to the regime of the law of
the sea, but in any particular case it will continue to be
necessary to weigh circumstances carefully in order to decide
which source of law applies. In addition, the Convention
contains new law fields, such as the deep-sea Area (Part
XI), marine scientific research (Part
XIII), development and transfer of technology (Part
XIV), and settlement of disputes (Part XV).
Some of these new regulations may have some impact on what is
or what becomes international law, even prior to entry into
force of the Convention.
uncertainty for the field of the law of the sea will last
until the Convention enters into force and is widely accepted.
12. The Future of the Convention
reliable prediction of the significance of the Convention in
the future cannot be expected at this point -
consideration of certain basic factors may indicate the
probable direction events will take.
conventions never enter into force until a certain period of
time has passed, and experience in the last four decades has
shown that the period needed today will be three or four times
that required in the 1950s,
if not even longer. The nations of the world can be expected
to take a particularly long time with the
1982 Convention as it does not contain simple,
straightforward technical regulations nor concern only one
subject; instead, it is a unique and comprehensive law, with
potentially far-reaching consequences for a broad range of
subjects. Most of the coastal states which do not belong to
the ten or so traditional shipping or fishing nations have
only recently begun to think about making use of their
"maritime rights", having previously had neither a
reliable infrastructure nor the necessary means and knowledge
of marine science
enable them to project the implications of the Convention or
judge what effect its obligations would have on them, much
less put it into practice. As there is presently no economic
pressure to commence deep sea-bed mining, there will be quite
a wait until the Convention enters into force.
ratification process -
as of this date (early 1988),
slightly more than half of the required sixty instruments of
ratification or accession have been deposited
- will undoubtedly continue, and one day the Convention
will formally enter into force. The more important question,
however, is whether the Convention will be universally
answer to this question depends on the attitude of the
superpowers, particularly the
, and the further development of political circumstances. The
attitudes of the superpowers will have an immediate effect on
their allies, with the result that larger groups of states may
refuse to accept the Convention. If, however, only one of the
superpowers withholds its acceptance, this state will more
likely find itself increasingly isolated.
political circumstances or practices, such as ratification by
groups (e.g., Group 77),
incidents which occur during passage through straits,
enforcement of coastal state laws in excess of the regulations
of the Convention, economic recession, and military tensions,
will favourably or adversely affect the implementation process
or the position of the Convention. Indifference might also
slow down the decision-making progress for a certain period of
time, but a complete and final stop will not be possible, as
the growing uncertainty and instability in legal, economical,
and political matters concerning the oceans, already
predictable, will continue to push the issue onto the order of
business. It is already obvious that the
1982 Convention, whatever direction developments of the
future take, has become an established
guide for political, technical, and legal matters involving the oceans,
and it will become obsolete only when it is replaced by its