The 1982 United Nations Convention on the Law of the Sea - The World’s Charter of Sea and Ocean
Since it was founded, the United Nations has given special priority to code activities and developed norms and principles of international maritime law. The UN has organized three important conferences on the law of the sea. The first UN Conference on the Law of the Sea was held in Geneva in 1958 and adopted four conventions: the Convention on Territorial Seas and Contiguous Areas; the Convention on the High Seas; the Convention on Fishing and Conserving the Resources of the High Seas and the Convention on Continental Shelf.
The second UN Conference on the Law of the Sea was held in 1960, also in Geneva, with the aim of reaching a consensus on the width of territorial waters. The conference failed to achieve its objective due to groups of countries adopting different stances. The third UN Conference on the Law of the Sea was held in New York and Geneva in two stages: the preparatory stage from 1967 to 1973 and the official stage from 1973 to 1982.
The great success of the third UN Conference on the Law of the Sea was the adoption of the 1982 UN Convention on the Law of the Sea (UNCLOS), with 320 articles and nine annexes. The Convention was opened for signing on December 10, 1982 with Fiji becoming the first member to the convention the same day. By June 5, 2012, the Convention had 162 members from Asia, Africa, Europe, America and Oceania. Eight of the countries bordering the East Sea have already joined the Convention, namely Viet Nam, China, the Philippines, Indonesia, Malaysia, Singapore, Brunei and Thailand.
The 1982 UNCLOS is seen as a global constitution on maritime issues as it has provided a comprehensive definition of the legal status of sea areas subject to coastal States’ sovereignty and sovereign rights as well as the legal status of international waters and seabed’s. The Convention also stipulated the establishment of a series of important international mechanisms relating to maritime activities including the “International Tribunal for the Law of the Sea,” the “International Seabed’s Authority,” the ‘Commission on the Limits of the Continental Shelf’ and the ‘Meeting of States Party to the Convention.’
For disputes that may arise between signatories, the 1982 UNCLOS requires all parties to settle disputes concerning the interpretation or application of the Convention by peaceful means in accordance with the United Nations Charter and clearly lays out the mechanisms to settle disputes. The Convention was ratified as a package so that all nations are not entitled to pick and choose what they like when joining the Convention.
1. Legal status of sea areas subject to the sovereignty and sovereign rights of coastal States, under the 1982 UN Convention on the Law of the Sea.
Under the convention, a coastal State is entitled to the following sea areas: internal waters, territorial waters, an exclusive economic zone and its continental shelf.
Internal waters cover waters that border a country’s coast on the landward side of the baseline. The coastal State has complete and absolute sovereignty over its internal waters the same as it has sovereignty over its land territory.
Territorial waters are the waters that lie beyond a coastal State’s baseline. According to the Law of the Sea in the 1950s and earlier, a coastal State’s territorial waters extended out for only 3 nautical miles or approximately 5.7km. At the second UN Conference on the Law of the Sea, a number of countries continued to back this viewpoint but other countries were determined to extend territorial waters to 12 nautical miles. At the third UN Conference on the Law of the Sea, the member countries reached a consensus and the 1982 UNCLOS defined the width of territorial waters as 12 nautical miles. A coastal State has sovereignty over its territorial waters as well as the airspace over its territorial waters, the seabed and the soil underneath within the territorial waters.
However, sovereignty here is not absolute like in the internal waters. In the territorial sea of a coastal State, ships of all States enjoy the right of innocent passage through the territorial sea (except planes flying over the airspace over the territorial sea have to ask for permission). The Convention also set out specific regulations on innocent passage, including not to impose threats or use force against sovereignty or political independence of the coastal State, or in any other manner violating the principles of international law embodied in the Charter of the UN; or disseminate or collect information to the prejudice of the defense or security of the coastal State.
The coastal State has the right to adopt regulations to control and supervise foreign ships traversing its territorial sea in respect of a number of issues: navigation safety, regulation of maritime traffic, the protection of navigational aids and facilities and other facilities, the protection of cables and pipelines, the conservation of the living resources of the sea, the prevention of infringement of coastal State’s fishery laws, the preservation of the sea environment, marine scientific research, prevention of infringement of the customs, taxation, immigration and quarantine laws and decide the corridor for the passage.
The contiguous zone is the zone lying within a coastal State’s exclusive economic zone. It is 12 nautical miles wide from the outer limits of the territorial sea. It can be said that the zone is like a buffer zone where coastal States enjoy the right to exercise necessary control to prevent and punish infringement occurred within its territorial sea. Apart from this, the zone’s status is the same as the remaining part of the exclusive economic zone.
The exclusive economic zone is the area beyond the territorial sea and extends 200 nautical miles from the baseline (as the territorial sea is 12 nautical miles so in fact the exclusive economic zone is only 188 nautical miles). The exclusive economic zone is a completely new legal regulation. The regulation did not exist before the 1950s. At that time, coastal States had the territorial sea of 3 nautical miles and beyond this was classed international waters. With the establishment of the exclusive economic zone, the waters of coastal States have been extended and international waters reduced.
Different from internal waters and the territorial sea, coastal States do not have sovereignty but sovereign rights over their exclusive economic zone. The coastal State has sovereign rights over the natural resources, whether living or non-living, and other activities, such as the production of energy from the water, currents and winds. At present, most sought after natural resources in the exclusive economic zone of coastal states is seafood . If coastal States cannot exploit all the resources , other nations can be allowed to fish (but have to pay fees and comply with coastal States’ regulations).
The coastal State has jurisdiction over the establishment and use of artificial islands, installations and structures, marine scientific research, and the protection and preservation of the marine environment.
In addition, the 1982 UNCLOS also stipulates that in coastal States’ exclusive economic zone, all States enjoy a number of rights such as the right to freedom of navigation and flights over the airspace of the coastal States’ exclusive economic zone.
The continental shelf comprises the seabed and subsoil areas that extend to a distance of 200 nautical miles minimum from the baseline that the breadth of the territorial sea is measured. Under the Convention, a coastal State can extend the continental shelf to 350 nautical miles maximum from the baseline or up to 100 nautical miles from the 2500 meter iso-bath (a line establishing the depth of 2,500 metres). To extend the outer limits of the continental shelf to beyond 200 nautical miles, a coastal State has to submit to the UN Commission on the Limits of the Continental Shelf a national report together with geographical and geodetic evidence. To exercise this right, coastal States have presented 60 national reports to the United Nations, including five joint reports made by two, three or four countries in a specific region. On May 6, 2009, Viet Nam’s permanent representative to the UN and Malaysia’s permanent representative presented the joint report of Viet Nam and Malaysia to the UN on delineating the limit of the continental shelf beyond 200 nautical miles in the south of the East Sea. On May 7, 2009, Viet Nam’s Permanent Representative to the UN presented Viet Nam’s report on delineating the continental shelf beyond 200 nautical miles in the northern region.
The UNCLOS 1982 stipulates that a coastal State can exercise sovereign rights over the exploration and exploitation of natural resources in its continental shelf. At present, coastal States are focusing on exploring and exploiting oil and gas to serve their economic development. In the future, apart from oil and gas, coastal States will explore and exploit other resources such as iron ore, copper, lead and tin... In particular, in clause 2 Article 77 of the Convention emphasized that sovereign rights over the continental shelf are exclusive in the sense that if the coastal State does not explore or exploit the natural resources here, no one may undertake these activities without the express consent of the coastal State.
Hence, regulations of the UN Convention on the Law of the Sea 1982, on the scope as well as legal status of sea areas subject to coastal States’ sovereignty and sovereign rights are clear and transparent. Under the regulations of the convention, coastal States enjoy the legal and legitimate rights over each sea areas. When exercising their rights, a coastal State has the responsibility to respect other coastal States’ similar rights. That is the objective requirement of legal order on the sea that was built by the international community. The rights and obligations under the international commitment always go together.
2. Legal status of international waters and international seabed under the 1982 UN Convention on the Law of the Sea
The International waters: under the previous international law of the sea, international waters were large and meant the entire sea area beyond coastal States’ 3 nautical miles of territorial sea. With the establishment of the 200 nautical mile exclusive economic zone, the extent of international waters, which are the sea area beyond coastal States’ 200 nautical mile exclusive economic zones, has been considerably reduced. According to the 1982 UN Convention on the Law of the Sea, all States enjoy the right of freedom of navigation, aviation, cable and pipeline installations, fishing and scientific research. However, when exercising the right, States have to respect interests of other States as well as comply with concerned regulations of the 1982 UN Convention on the Law of the Sea, such as marine environmental protection, preservation of marine resources, navigation safety and cooperation in controlling piracy etc. The Convention stipulates that international waters are used for peaceful purposes and no country is entitled to enforce its sovereignty over any area of the international waters.
International seabed (or ocean floor) is the area of the seabed and the subsoil thereof beyond a coastal State’s continental shelf. The 1982 UN Convention on the Law of the Sea stipulated that international seabed is the common heritage of mankind and no State can claim sovereignty or sovereign rights over the international seabed, including its resources. These are new regulations in the modern international law. The 1982 UN Convention on the Law of the Sea stipulates that different from the international waters, States are not entitled to freedom to exploit natural resources on the international seabed. To regulate all activities relating to the international seabed, the 1982 UN Convention on the Law of the Sea stipulated the establishment of a new international organization called the International Seabed Authority.
The abovementioned new regulation on the international seabed is the result of the persistent struggle by developing nations. Previous international law on the sea gave the same legal status of international waters to international seabed. In the 1960s, developing nations exerted their efforts on the international community to establish this legal status, with a number of industrialised nations not supporting such status. Hence, in the 1990s, within the framework of unofficial discussion under the chair of the UN Secretary General, countries negotiated the content of Part XI of the Convention. The negotiation resulted in the 1994 Agreement on the implementation of Part XI of the Convention, under which a number of clauses and terms in the UNCLOS relating to the legal status of international seabed have been changed to meet developed nations’ requirements.
3. International mechanisms for the implementation of principles of the 1982 UNCLOS
a. The Meeting of State Parties to the 1982 UNCLOS is held annually at the UN headquarters in New York around June. It aims to discuss the implementation of the Convention, elect related mechanisms such as the International Tribunal for the Law of the Sea, the International Seabed Authority and the Commission on the Limits of the Continental Shelf and assess the performance of the mechanisms. All decisions are adopted by a majority vote.
b. The International Tribunal for the Law of the Sea is located in the German port city of Hamburg. The Tribunal adjudicates disputes over matters concerning the interpretation and application of the 1982 UNCLOS. The Tribunal is composed of 21 judges who are elected for a renewable nine-year term at the Meeting of States Parties to the 1982 UNCLOS by secret ballot from a list of nominees. The States Parties have so far submitted 19 cases to the Tribunal with 18 cases regarding disputes between nations and another filed by the International Seabed Authority to get advice from the Tribunal. People said that the member States will bring more cases to the Tribunal because the body has several advantages over other international judicial mechanisms.
c. The International Seabed Authority (ISA) represents the international community to manage the international seabed (granting licenses to seabed mineral exploration, issuing policies on exploration and exploitation, and dividing proceeds collected from seabed mineral exploitation for the international community, etc). All States Parties to the 1982 UNCLOS are natural members of the Authority, which has headquarters in Kingston, Jamaica. ISA’s major bodies include the Assembly which consists of representatives from all ISA members (similar to the UN General Assembly), the Council with 36 members (four-year term) and the Secretariat headed by the Secretary General.
d. The Commission on the Limits of the Continental Shelf assesses national reports on the outer limits of the continental shelf beyond 200 nautical miles and makes recommendations to the reports. The Commission has 21 members elected at the Meeting of States Parties to the 1982 UNCLOS for a term of five years. Based on the Commission’s recommendation, coastal States shall establish the beyond-200 nautical mile outer limits of the continental shelves. By June 5, 2012, the Commission received 60 national reports on continental shelves that extend out over 200 nautical miles from their baseline, including a joint report from Viet Nam and Malaysia on the outer limits of their continental shelves in the southern part of the East Sea, and Viet Nam’s report on the continental shelf in the northern part. The Commission convenes its annual meetings at the UN headquarters in New York. The Commission has so far made recommendations on only 17 reports due to their complicated content and new skills required in their assessment. With such progress, it is expected to take the Commission 20 years more to complete its conclusions on all national reports. Therefore, in recent years, States Parties to the 1982 Convention are making efforts to seek measures to speed up the process.
4. Viet Nam and the 1982 UNCLOS
a. As a coastal State, Viet Nam has actively participated in negotiations on the draft of the 1982 UNCLOS. Viet Nam highly valued the ratification of the 1982 UNCLOS at the third UN Conference on the Law of the Sea. During the negotiating process at the conference, deliberation on the content of the draft was different among groups, including coastal and non-coastal States, developing and developed countries, poor countries and those holding strong naval potential. Interests and concerns of the groups regarding legal status of sea areas are different, even contrary. As a result, the 1982 UNCLOS’s stipulations could not meet all claims of all the groups. However, in general, they harmonized it has managed to harmonise requirements and concerns.
Viet Nam was one of the first countries to sign the convention after the 1982 UNCLOS was adopted. On June 23, 1994, the Vietnamese National Assembly ratified this important legal document. Since joining the 1982 UNCLOS, Viet Nam has actively taken part in activities within the framework of the Convention’s international mechanisms. The country has been elected as Vice President of the Assembly of the International Seabed Authority and member of the Council of the Authority. At related forums, the country always highlights the need for the States Parties to abide by the Convention’s stipulations and fulfill their rights as well as obligations regulated in the Convention. As a country bordering the East Sea, Viet Nam has deployed a broad range of exploitation activities in sea areas under the country’s sovereignty and sovereign rights to serve national construction and development. While carrying out such activities, Viet Nam always observes the Convention’s principles, respects the rights of countries bordering the East Sea and others. Viet Nam also asks countries bordering the East Sea and others to respect its legitimate rights in the East Sea. In fact, there have been a number of cases that seriously violate Viet Nam’s sovereign rights over its continental shelf and exclusive economic zone. Viet Nam is resolved to use diplomacy and public opinion to protect the country’s sovereign rights over its continental shelf and exclusive economic zone.
b. Viet Nam is fully aware of the unavoidable disagreements and disputes between countries in the use of seas and application of the 1982 UNCLOS. The only way to address differences and disputes regarding the interpretation and implementation of the Convention’s principles is to use peaceful measures in conformity with international law. Settling sea-related disputes peacefully is the duty of the UN members as regulated at the UN Charter and the 1982 UNCLOS.
Therefore, the Vietnamese National Assembly’s Resolution on the ratification of the 1982 UNCLOS affirms Viet Nam’s policy to resolve disputes in the East Sea by peaceful measures, in the spirit of equality, mutual understanding, mutual respect and respect for international law, especially the 1982 UNCLOS, the sovereignty, sovereign rights and jurisdiction of countries bordering the East Sea over their exclusive economic zones and continental shelves; while making efforts to accelerate negotiations to seek long-term fundamental solutions. The Resolution also highlights the need for concerned parties to maintain peace and stability on the basis of keeping status quo, taking no action that might further complicate the situation and not using force or threatening to use force.
Under this a consistent policy, Viet Nam has based on principles of the 1982 UNCLOS to negotiate with its neighbouring countries on issues relating to the East Sea. In the recent past, Viet Nam and its neighbours, including Thailand, China and Indonesia, have solved a number of disputes on the exclusive economic zone and overlapping continental shelf. In 1997, Viet Nam and Thailand signed an agreement on the delimitation of their exclusive economic zones and continental shelves in the Gulf of Thailand. In 2000, Viet Nam and China reached an agreement on the delimitation of their territorial seas, exclusive economic zones and continental shelves in the Gulf of Tonkin. In 2003, Viet Nam and Indonesia inked an agreement on the delimitation of their continental shelves in the southern part of the East Sea. After coming into force, these agreements are registered at the UN in accordance with the UN Charter. Fulfilling obligations regulated in the 1982 UNCLOS and in conformity with commitments in the 2002 Declaration on the Conducts of Parties in the East Sea between ASEAN and China, Viet Nam has strictly abided by principles of the 1982 UNCLOS while calling on other member States to follow the obligations. The country’s stand has received great support of the international community./.
Lawyer Hanh Duy