Why in the News
The United Nations Convention on the Law of the Sea (UNCLOS) remains the governing framework for the world’s oceans, in the assessment of Tommy Koh. He presided over the Third United Nations Conference on the Law of the Sea, and led more than 150 nations to adopt the Convention in 1982. He is among this year’s Ramon Magsaysay award winners. He puts the number of parties at 172 and treats that as near universal. The United States has never ratified the Convention and still regards it as the authoritative law of the sea. Iran is not a party either, and the regime of transit passage binds it as customary international law. The Convention’s authority is therefore being tested in the Strait of Hormuz against a state that never accepted the treaty.
What is UNCLOS?
- What it is: A comprehensive treaty setting the legal order for the world’s oceans, adopted in 1982 after nine years of negotiation and in force since 1994.
- What it allocates: It fixes the maritime zones a coastal state may claim and the rights it holds in each, running outward from the territorial sea to the exclusive economic zone, the continental shelf and the high seas.
- What it does with the deep seabed: Part XI treats the deep seabed and its minerals as the “common heritage of mankind”, to be administered for all states rather than claimed by any one of them.
- Why it is described as a constitution: It settles jurisdiction, resource rights and dispute settlement in one instrument, so later ocean agreements are negotiated inside its framework rather than beside it.
Why has the United States never ratified UNCLOS?
- The objection was to the seabed regime, not to the law of the sea: The Reagan Administration rejected Part XI as incompatible with free enterprise and private property norms.
- It reversed an earlier American position: The stance taken during the Carter Administration was changed under President Reagan, and the demands that followed were rejected by the developing countries.
- The 1994 repair did not change the outcome: A separate agreement in 1994 revised the Part XI arrangements to meet those objections, and ratification still did not follow.
- Non ratification is not confined to one objector: Iran and a number of other states have also stayed outside the Convention.
What binds a state that is not a party?
- The count itself does the work: With 172 parties, the Convention’s rules describe general state practice rather than the internal arrangements of a treaty club.
- Custom reaches the non party: Transit passage through international straits has passed into customary international law, so it binds Iran although Iran never joined the Convention.
- The dispute is political rather than legal: There was no trouble in the Strait of Hormuz before the war, so the priority is ending the war rather than rewriting the law that governs the strait.
- A fourth conference answers the wrong question: Reopening the Convention to bring the remaining states in would put a settled architecture back on the negotiating table, and near universal participation already exists without it.
Where does the Convention not reach?
- Dark fleet enforcement is happening outside it: States are designating vessels as a “dark fleet” and taking punitive material action against them, including on the high seas.
- The forum named for that problem is the IMO: The International Maritime Organization, rather than a law of the sea conference, is where the practice should be addressed.
- Boundary disputes are read as application, not failure: Exclusive economic zone and seabed contests in the South China Sea and over Indian Ocean boundaries are treated as arguments inside the Convention’s architecture rather than as evidence that the architecture has stopped working.
Conclusion
A treaty honoured by states that never signed it is strong in one sense and weak in another. Its rules describe how states actually behave, which is precisely what turns them into custom. It carries no way of compelling a state that decides to behave differently, because the states outside it are the ones its dispute settlement machinery cannot reach. That gap is where a closed strait sits, and no further round of accessions would close it.
Back2Basics: International Maritime Organization
- What it is: The United Nations specialised agency responsible for the safety and security of shipping and for preventing marine pollution by ships.
- When it was established: It was created by a convention adopted in 1948, began functioning in 1959, and is headquartered in London.
- What it produces: Its principal instruments are the International Convention for the Safety of Life at Sea (SOLAS) and the International Convention for the Prevention of Pollution from Ships (MARPOL).
- How it enforces: It sets standards that flag states then apply to ships registered with them, so it regulates through member state implementation rather than by direct enforcement at sea.
[2022] With reference to the United Nations Convention on the Law of Sea, consider the following statements :
1. A coastal state has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baseline determined in accordance with the convention.
2. Ships of all states, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea.
3. The Exclusive Economic Zone shall not extend beyond 200 nautical miles from the baseline from which the breadth of the territorial sea is measured.
Which of the statements given above are correct ?
(a) 1 and 2 only
(b) 2 and 3 only
(c) 1 and 3 only
(d) 1, 2 and 3