Overview of UNCLOS
You are an analyst working in an international NGO that conducts independent research into issues of international law. You have been asked to prepare an analysis on one of the specific cases below. This will take the form of a report that is targeted at policy-makers, practitioners working in the field, and academics who are interested in the case at hand. There are a number of things your analysis must contain:
1. Your report must outline the context in which you’re considering the issue, including the relevant international legal and normative frameworks, relevant historical context, and the international political context.
2. It must consider the major actors and interests involved in the issue. This involves identifying key states and their roles in relevant international processes, as well as exploring the role international organisations, both intergovernmental and non-governmental, play in relation to the issue at hand.
3. You must provide an analysis of what the current ‘state of affairs’ is in relation to the aspect of international law that you’re considering. What are the important things the reader must know about what is currently going on in relation to your specific topic? What are the major challenges and critiques facing the legal frameworks / organisations / institutional bodies at hand in terms of the development or implementation of the law at hand? How effectively are they achieving the ends they were designed to achieve? And to what extent are states supporting the development of international law and international organisations in this arena?
4. You must discuss the prospects for the future in relation to the case at hand. This involves providing recommendations about how the key actors can address the challenges and obstacles you’ve identified. You should outline the goals you recommend they work towards, in the context of your earlier analysis.
The United Nations Convention on the Law of the Sea emerged on 1982. The said Convention in a way makes the regulation of several maritime issues in a comprehensive manner. This makes the inclusion of the naval and civil navigation rights. The Convention also makes the protection of the coasts and the environment relating to marine. The Convention also includes rights of the non-living and the living resources and the right to scientific research of maritime (Aust 2013).
The Convention of the United Nations that is related to the Law of the Sea, from now on referred to as the UNCLOS is also referred to as the Sea Treaty Law. It is that international agreement that has emerged from the third conference of the United Nations that was held on sea laws. The third conference is also called UNCLOS III. Such conference took place between the years of 1973 and 1982. The UNCLOS renders the definition of the responsibilities and rights of the nations that are in respect of their use of the oceans of the world and at the same time making the establishment of guidelines for doing business. The UNCLOS also emerged for the management of the natural resources related to marine. The Convention ended in the year of 1982 by making the replacement of four treaties of 1958. The UNCLOS came into effect after one year of the fact that Guyana emerged as the 60th Country that made the entry to the Convention in the year of 1994. In the year of 2015, there are 166 countries in the Convention and the European Union joined the Convention. But there still exists the uncertainty as to what extent there is the codification of the international law that ids customary in the Convention (Ban et al. 2014).
History of the UNCLOS
Although the United Nations’ Secretary General gets the instrument of the accession and ratification, the United Nations makes the provision for rendering support for holding the meetings by the State Parties relating to the said Convention. The United Nation does not play a role that is direct in making the implementation of the Convention. The organizations that have the direct role in making the implementation of the Convention are the International Maritime Organization, the International Seabed Authority, and the International Whaling Commission. The issue of several different claims relating to territorial waters emerged in the United Nations in the year of 1967 (Foucault 2013). Arvid Pardo of Malta did it. In the year of 1973, the third conference of the United Nations was conducted on the sea laws in the United States. In making the objective to make the reduction of the possibility of the nation states groups to make the domination, the said conference made the usage of a process of consensus rather than using the process of majority vote. More than one hundred sixty countries were participating in the conference. The conference lasted until the year of 1982. The said convention emerged in into having force on the 16th of November in the year of 1994 after the ratification of the treaty done by Guyana. The Convention is limited in functioning on several occasions. Such limitation is subject to measurement based on a baseline that is defined (Beckman 2013).
In the recent years, seventy-one parties stand as a party to the Convention. Out of those parties, sixty-eight parties are the developing countries and four counties the industrialized or the developing countries. The developed countries include Australia, Iceland, Italy, and Germany. Out of the seventy-two parties, there are eight parties that are land locked countries, and there are eleven parties that claim themselves to be the archipelagic states. Thirty-one parties are the Commonwealth members (Booth 2014).
In its general sense, by Section 17 of the Vienna Convention on the treaty laws, the entry of any party into the Convention would mean that it has entered in all parts including its annexes. But there are two decisions that are taken to order to make the modification of that position (Caron 2014).
The first decision was taken on 28 July of 1994. The General Assembly made the adoption of the Agreement that was based on the factor of implementation of its Part XI of the Convention. Up to this date, seventy-two parties have signed the Convention. Article 8 of the said Agreement makes the declaration for making the application of the Agreement provisionally with having the effect from 16th of November in the year of 1994. Hence, the original version of the Part XI that was adopted in the year of 1982, previously has no independent effect. Hence, upon the enactment of the said Convention, its Annexes, and Part XI were qualified immediately by Agreements terms that were applied in provision (Díez et al. 2015).
The second change that was significant was decided on 22 November in 1994. The change emerged when there was a formal meeting that was held between the State Parties to the Convention. The meeting was held in New York. The decision was taken in order to defer from the initial election of the International Tribunal’s Judges on the laws of the sea. The said decision was made after the informal consultation with that of the non-State parties. The majority of the non-State parties were the industrialized or the developed countries. The imbalance that exists between the seventy-two countries raised the twin questions regarding their representation in the majority of the legal system and not in the budget of the United Nations (Dixon 2013).
UNCLOS and the International Community
Part XI of the said Convention makes the provision for that regime that relates to the seabed minerals that is not within any territorial waters of any country or the Exclusive Economic Zones. The provision makes the establishment of the fact that the International Seabed Authority or the ISA has the authority to conduct the exploration of the seabed and make the mining, collection, and distribution of the mining authority of the seabed. The United States made the objection of the provisions of Part XI of the said Convention on various grounds. The primary argument was by that the Convention was not favorable for the United States by security interests and economic interests. It is due to that Part; the United States made the refusal to make the ratification of the UNCLOS. But, there was the agreement that was provided with the remaining provisions of the Convention (Druel and Gjerde 2014).
In between the period of 1983 and 1990, the United States made the acceptance of all of the Convention but Part XI was accepted as customary international law. The same was established for making the establishment of an alternation regime for the purpose of exploitation of those minerals that are embedded in the deep of the seabed. There was an agreement that was made between the nations that were engaged in the mining of the seabed. Licenses were granted to four international consortia (Hazel Fox and Webb 2013).
The said Convention has made the limit to several places that were measured on the careful basis that is based on a baseline that is defined. In the normal situation, the baseline of the sea makes the following of the low water line, but in the case when the said coastline is indented deeply, has the island that is fringing or is unstable highly, there must be related to the-the usage of straight baselines. The Convention, in fact, covers the following areas:
- Internal waters: it covers all the water and the ways that lie on the baseline’s leeward side. The Country or the State of such coast is all authorized or free to set or regulate the laws and also to administer the use of any maritime resources. The foreign vessels possess no right to make the passage within any country’s waters that are internal (Kaczorowska-Ireland 2015).
- Territorial Water: within 12 nautical miles from any baseline, the country of any coast is allowed to set the laws and the regulations and also has the powers to make the usage of maritime resources. The vessels were granted the right for making the innocent passage within the territorial waters allowing the military crafts to make as a passage that is termed as transit. The term innocent passage is referred to as the passage in the waters in a form of continuous and expeditious manner that is not prejudicial to the good order or peace or the security of any coastal State. Such definition is provided in the Convention itself. The actions of polluting, fishing, use of weapon and spying are not considered as the innocent by the convention. The Convention also requires the submarines and the vehicles of the of the underwater to make the display of their flag. Any country possesses the power to make the prohibition or suspend on a temporary basis of the innocent passage in any specific areas of their seas that lie in their territories. It can only be done if such prohibition or suspension is required for the security protection of any country (McCauley et al. 2016).
- Archipelagic waters: In Part, IV the Convention declared the definition of the term the Archipelagic States. The same part also states the procedures through which the states can make the drawing of their territorial borders. The baseline that can be drawn between the outer points of the outer islands that are subject to the location of those islands being close to one another. All those water that is inside the baseline is termed as the Archipelagic waters. It is established law that the State has the sovereignty over such waters but includes the extrinsic rights such as the traditional rights of fishing of the states that are immediately adjacent to any state. The vessels of any foreign State have the right to make the innocent passage through the archipelagic waters like that of the territorial waters (McCauley et al. 2016).
- Contiguous zone: the further area that is beyond the limit of 12 nautical miles, there is further 12 nautical miles from the base limit of the territorial sea that is regarded as the contiguous zone. In the contiguous zone, any State can continue to make the enforcement of laws in four specific areas such as taxation, customs, immigration and pollution. It is done in case any infringement has started in any territory of any country or its territorial waters or in case if any infringement is about to taking place in the territorial waters or in any territory of any country. This phenomenon makes the contiguous zone an area of hot pursuit.
- Exclusive Economic Zones: the exclusive economic zone makes the extension from the edge of the territorial sea to 200 nautical miles from the baseline. Within the area of Exclusive Economic Zones, any coastal state possesses the sole rights of exploitation of all the natural resources. In the casual sense, the term may include the continental shelf territorial sea. The EEZ emerged to make the halt to the increasing clashes over the rights of fishing (Nanda and Pring 2012).
- Continental Shelf: the continental shelf is defined as the process of prolongation that occurs naturally of any territory of land to the outer edge of the continental margin or a distance of 200 nautical miles from the baseline, whichever is greater. The continental shelf of any country may exceed for 200 nautical miles unless the end of the prolongation. But there is a stipulation of the fact that the distance may never exceed 350 nautical miles from the baseline (Sohn et al. 2014).
The Seabed Disputes Chamber of the International Tribunal for the Law of Sea made the issue of the of an advisory opinion relating to the legal obligations and responsibilities of the State Parties to the Convention in relation to the sponsorship of the activities in areas in accordance to Part XI of the Convention and the Agreement of 1994. The said advisory opinion was issued in making the response to a formal request that was made by the International Seabed Authority (Tanaka 2015).
In the future prospective, the recommendations that can been made are that the legal frame that are related with the Convention has to be much more strict in order to curb the offenses related with territorial waters (Von Glahn and Taulbee 2015).
Aust, A., 2013. Modern treaty law and practice. Cambridge University Press.
Ban, N.C., Bax, N.J., Gjerde, K.M., Devillers, R., Dunn, D.C., Dunstan, P.K., Hobday, A.J., Maxwell, S.M., Kaplan, D.M., Pressey, R.L. and Ardron, J.A., 2014. Systematic conservation planning: a better recipe for managing the high seas for biodiversity conservation and sustainable use. Conservation Letters, 7(1), pp.41-54.
Beckman, R., 2013. The UN convention on the law of the sea and the maritime disputes in the south china sea. American Journal of International Law, 107(1), pp.142-163.
Booth, K., 2014. Law, Force and Diplomacy at Sea (Routledge Revivals). Routledge.
Caron, D.D., 2014. When law makes climate change worse: rethinking the law of baselines in light of a rising sea level.
Díez Rodríguez, J.J., Oliver, C., Vicente, L. and Ahumada Cervantes, B., 2015. Addressing strategic environmental assessment of Mexico's transition towards renewable energy. In AEIPRO 2015: International Congress on Project Engineering (pp. 1121-1132).
Dixon, M., 2013. Textbook on international law. Oxford University Press.
Druel, E. and Gjerde, K.M., 2014. Sustaining marine life beyond boundaries: Options for an implementing agreement for marine biodiversity beyond national jurisdiction under the United Nations Convention on the Law of the Sea. Marine Policy, 49, pp.90-97.
Foucault, M., 2013. Politics, philosophy, culture: Interviews and other writings, 1977-1984. Routledge.
Hazel Fox, Q.C. and Webb, P., 2013. The law of state immunity. OUP Oxford.
Kaczorowska-Ireland, A., 2015. Public international law. Routledge.
McCauley, D.J., Woods, P., Sullivan, B., Bergman, B., Jablonicky, C., Roan, A., Hirshfield, M., Boerder, K. and Worm, B., 2016. Ending hide and seek at sea. Science, 351(6278), pp.1148-1150.
Nanda, V. and Pring, G.R., 2012. International environmental law and policy for the 21st century. Martinus Nijhoff Publishers.
Sohn, L.B., Noyes, J., Franckx, E. and Juras, K., 2014. Cases and Materials on the Law of the Sea. Martinus Nijhoff Publishers.
Tanaka, Y., 2015. The international law of the sea. Cambridge University Press.
Von Glahn, G. and Taulbee, J.L., 2015. Law among nations: an introduction to public international law. Routledge.
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