the law of the sea treaty unclos 1982

7/27/2019 The Law of the Sea Treaty UNCLOS 1982

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Introduction

The 1982 United Nations Convention on the Law of the Sea (UNCLOS) is the mostcomprehensive attempt at creating a unified regime for governance of the rights ofnations with respect to the world's oceans. The treaty addresses a number of topics

including navigational rights, economic rights, pollution of the seas, conservation ofmarine life, scientific exploration, piracy, and more. The treaty, one of the longest inhistory, is comprised of 320 articles and 9 annexes, representing the codification ofcustomary international law and its progressive development.

Historical Background

Since humanity first set forth upon the seas, the issue of sovereign control over theoceans has been an ongoing concern. Prior to the 20th century, the oceans had beensubject to the freedom of the seas doctrine. This principle, adopted in the 17th century,

limited national rights and jurisdiction over a narrow band of water along a nations coast,the rest of the sea being free to all and belonging to none. Nearly a century later, the"cannon-shot" rule became the basis for determining how much of the adjacent oceanswere under the jurisdiction of a nation. The cannon-shot rule set forth that a nationcontrolled a territorial sea as far as a projectile could be fired from a cannon based onshore. In the 18th century this range was approximate three nautical miles. As timeprogressed, three miles became the widely accepted range for the territorial sea.[1]

Due to the slow pace of technological developments prior to the Industrial Revolution,these simple rules provided effective governance of the world's oceans. With thetechnological developments of the mid-19th and early-20th centuries, however, not only

did ships become more powerful, but technology allowed humanity to exploit oceanresources that had never before been envisioned. Fishermen, once limited to areas neartheir own coasts, were now equipped with vessels that could allow them to stay at sea formonths at a time and capture fish harvests that were far from their native waters.Virtually unrestrained, fleets from around the world traveled to areas rich in fish-stocks.The lack of restraint on the part of these fishermen resulted in fish stocks around theworld being depleted without regard to the stability of their numbers.[2]

Evolving technology also allowed for the exploitation of previously inaccessible off-shore resources, most notably oil (but also diamonds, gravel, and precious metals). Toillustrate the rapidity of these developments, in 1947 off-shore oil production in the Gulf

of Mexico was still less than 1 million tons. By 1954, production had grown close to 400million tons.[3] As a matter of perspective, just in the Gulf of Mexico, the United Statesalone currently produces 218,192 tons daily, for a total of 79.6 million tons annually,reflecting a steadily decreasing trend that began in the 1970's.[4]

In order to protect local resources, be they biological or mineral, nations began expandingtheir claims of sovereignty beyond the traditional 3 mile limit. The first nation tochallenge the long-standing freedom of the seas doctrine was the United States. OnSeptember 28, 1945, President Harry S. Truman signed what has become commonlyknown as the Truman Proclamation. The proclamation set a claim of sovereignty by theUnited States to the outer continental shelf (OCS) and the resources therein as well asestablishing the right of the U.S. to establish conservations zones "in areas of the highseas contiguous to the coasts of the United States."[5] While recognizing some limitedsovereignty over an expanded region of the sea, the proclamation was careful to stipulatethat the new US policy did not affect "the right [of] free and unimpeded navigation." [6]

After the United States expanded its claim, it was not long before other nations followedsuit. By 1950, Argentina was actively claiming its continental shelf as well as the water
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column above it, Ecuador,Chile, and Peru were asserting rights over a 200-mile zone inorder to protect its biological resources from foreign fleets, and a spate of Arab andEastern European nations were laying claim to a 12-mile territorial sea. There was agrowing understanding, however, that such a fractured regime could not continue.[7]

UNCLOS I

Recognizing the conflicts that were resulting from the current regime, the GeneralAssembly adopted resolution 1105 (XI), which called for the convening of the UnitedNations Convention on the Law of the Sea in Geneva in 1858. Eighty-six nationsparticipated (now commonly referred to as UNCLOS I). The meeting produced fourseparate conventions [8]: 1) the Convention on the Territorial Sea and the ContiguousZone (established sovereignty rights and rights of passage through the territorial sea,established the Contiguous Zone to extend 12 nautical miles from the baselines, but failedto set standards of limits on the territorial sea);[9] 2) the Convention on the High Seas(established access for landlocked nations, expounded on the concept of "flag state,"

outlawed the transport of slaves, covered piracy, established safety and rescue protocols,established a national duty to prevent pollution, and established rights to laying ofundersea cables and pipelines);[10]3) the Convention on Fishing and Conservation of theLiving Resources of the High Seas (established the right of coastal nations to protectliving ocean resources, required nations whose fleets leave their territorial sea to establishconservation measures, and established measures for dispute resolution);[11] 4) and theConvention on the Continental Shelf (established the regime governing the superjacentwaters and airspace, the laying and maintenance of submarine cables or pipelines, theregime governing navigation, fishing, scientific research and the coastal nation'scompetence in these areas, delimitation, and tunneling).[12]The Convention also producedan Optional Protocol of Signature Concerning the Compulsory Settlement of Disputes

(provides for the compulsory jurisdiction of the International Court of Justice, or forsubmission of the dispute to arbitration or conciliation). [13] While UNCLOS I saw asignificant development in the international legal regime governing the oceans, therewere still many issues left unsettled.

UNCLOS II

In an attempt to deal with the issues that remained unresolved after UNCLOS I, theGeneral Assembly called for a second United Nations Convention on the Law of the Sea(now commonly referred to as UNCLOS II). The parties met for just over a month inearly 1960 with the objective of settling the question on the breadth of the territorial seas

and fishery limits. While the conference adopted two resolutions, the parties were unableto come to consensus on the issues at hand.[14]

UNCLOS III

Frustrated by the continuing inconsistency in the ocean governance regime, Malta'sambassador to the United Nations, Arvid Pardo, called upon the General Assembly totake action and called for "an effective international regime over the seabed and theocean floor," that clearly defined national jurisdiction.[15] One month later, the GeneralAssembly adopted resolution 2467 A (XXIII) and resolution 2750 C (XXV), whichcreated the Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond

the Limits of National Jurisdiction and called for the convening of a third Law of the Seameeting to be held in 1973.[16] The deliberations lasted for nine years, saw theparticipation of 160 nations, and concluded in 1982 with the United Nations Conventionon the Law of the Sea, which is now commonly referred to as simply "UNCLOS" or theLaw of the Sea Treaty.[17]UNCLOS is one of the largest, and likely one of the mostimportant, legal agreements in history. The treaty contains 320 articles and 9 annexes. Itsynthesizes and builds upon the agreements that were developed at the first conference
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(see UNCLOS I above). The agreement addresses a myriad of issues includingnavigational rights of ships and aircraft, limits on the extension of national sovereigntyover the oceans, environmental protection of the oceans, conservation of living resourcesand mining rights.

While UNCLOS was first signed in December of 1982, the agreement did not come intoforce until November of 1994, a period of nearly 12 years.[18]UNCLOS required 60signatures for ratification and could only enter into force one year after the final nationhad ratified or acceded to the treaty. [19] The main reason many nations took so long tosign the treaty is because of Article 309, which prohibits nations from taking outreservations to any part of a treaty. A reservation is a statement made by a nation whenaccepting a treaty, whereby it excludes or modifies the legal effect of certain provisionsof a treaty as those terms apply to the nation accepting the treaty. [20] The inability of anation to take out reservations to particular terms of the treaty caused many nations tohesitate. UNCLOS represented a significant number of compromises and some of theterms of the agreement did not sit well with various nations. However, in order to

establish a unified doctrine of the law of the sea, UNCLOS necessarily had to preventreservations or risk maintaining a fractured regime.

Divisions of Ocean Areas

One of the most powerful features of UNCLOS is that it settled the question of the extentof national sovereignty over the oceans and seabed. Parts II, V, VI, and VII establish thevarious regions of the oceans, who has sovereignty over each, and to what degree. Thefollowing sections explain both how the maritime regions are divided and the sovereignpowers that nations may exercise over each region.

Baselines
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Diagram of the various regions of the ocean over which a State may exercise sovereignty.

The baseline is the boundary from which a nation may begin measurements to determinethe portion of the adjacent oceans or continental shelf over which it may exercisesovereignty. Except in some special cases, the baseline is the low-water line along thecoast.[21]Detailed explanations of how baselines are determined are provided in Articles

5-7 and 9-14. Special rules have been established for determining the baselines ofarchipelagic nations (nations that consist of a number of small islands such as thePhilippines) and can be found in Article 47.

Internal Waters

Internal waters are those that are contained on the landward side of the baseline. [22] Thesewaters fall under the exclusive sovereignty of the nation in which they are contained.

Territorial Sea

Article 3 of UNCLOS declares that a nation may establish a territorial sea that extends upto 12 nautical miles from the baselines. Within the territorial sea, a nation has exclusivesovereignty over the water, seabed, and airspace.[23] The treaty establishes that all nationshave the right of innocent passage through the territorial sea of another nation and that,outside certain conditions, the nation laying claim to the territorial sea cannot hamperinnocent passage of a foreign vessel.[24] UNCLOS adopted the basic concepts of theterritorial sea and the right of innocent passage that had been codified in the Convention
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on the Territorial Sea and the Contiguous Zone, but the new treaty went a step further byestablishing the limits of a nation's territorial sea.

By the late 1960's many nations recognized a 12-mile limit to the territorial sea. At thestart of the UNCLOS, only twenty-five nations maintained the traditional claim of 3

nautical miles. Sixty-six nations were claiming 12 nautical miles, fifteen nations claimedbetween 4 and 10 nautical miles, and eight nations were claiming an astounding 200nautical miles. Smaller nations, including those without large navies or merchant fleets,favored a larger territorial sea in order to protect their coastal waters from infringementsby more powerful nations. The world's major naval and maritime powers, however,pressed for the 3-mile rule because the 12-mile rule would have placed over 100 straitsused for international navigation under the exclusive sovereignty of other nations. Someof these included the Strait of Gibraltar (the only open access to the Mediterranean), theStrait of Hormuz (the only passage to the oil-producing Persian Gulf and Gulf of Omannations), and the Strait of Malacca (the main route connecting the Pacific and IndianOceans).[25]

Remembering that the Cold War was still ongoing during the Convention, smaller nationswere particularly concerned about the possibility of threats to their national securityposed by warships of foreign nations or even the possibility of becoming embroiled in theconflicts of foreign powers. In an attempted compromise, the small nations offered thelarger maritime powers the right of innocent passage, however the maritime powers werenot satisfied with this offer. The problem, in the view of the great powers, was thatrestrictions to innocent passage would prohibit covert movements of vessels (such assubmarines) and did not guarantee overflight rights, thereby creating a security risk. [26]

In the end, the parties came together to form a compromise known as "transit passage."

Applied specifically to straits that would otherwise fall within the territorial sea of anation, transit passage applies to straits used for international navigation between one partof the high seas to another and allows for "navigation and overflight solely for thepurpose of continuous and expeditious transit of [a] strait...." [27] In all other ways asidetransit passage, the waters of a strait still remain the territorial sea of the adjacent nation.[28]

Contiguous Zone

The Contiguous Zone is a region of the seas measured from the baseline to a distance of24 nautical miles. Within this region, a nation may exercise the control necessary toprevent the infringement of its customs, fiscal, immigration or sanitary laws andregulations within its territory or territorial sea, and punish infringement of those lawsand regulations committed within its territory or territorial sea.[29]

Exclusive Economic Zone

The Exclusive Economic Zone or "EEZ" is a region that stretches a distance of no morethan 200 nautical miles from a nation's baselines.[30] Generally, the rules regarding theHigh Seas, set forth in Articles 88 to 115, apply to the EEZ. [31] Within its EEZ, a nationmay explore at exploit the natural resources (both living and inanimate) found both in thewater and on the seabed, may utilize the natural resources of the area for the productionof energy (including wind and wave/current), may establish artificial islands, conductmarine scientific research, pass laws for the preservation and protection of the marineenvironment, and regulate fishing.[32]

One of the primary purposes behind establishing the EEZ was to clarify the rights ofindividual nations to control the fish harvests off their shores. The 200-mile limitestablished by UNCLOS is not an arbitrary number. It is derived from the fact that the
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most lucrative fishing grounds lie within 200 nautical miles from the coast as this iswhere the richest phytoplankton (the basic food of fish) pastures lie.[33]

The creation of the EEZ gave coastal nations jurisdiction of approximately 38 millionsquare nautical miles of ocean space. The world's EEZs are estimated to contain about

87% of all of the known and estimated hydrocarbon reserves as well as almost alloffshore mineral resources. In addition, the EEZs contain almost 99% of the world'sfisheries, which allows nations to work to conserve the oceans vital and limited livingresources.[34]

Continental Shelf

Cross sectional map of a continental shelf.

Unlike the other boundaries that have been thus far discussed, the continental shelf is areal, naturally-occurring geological formation. It is a gently sloping undersea plainbetween the above-water portion of a landmass and the deep ocean. The continental shelf

extends to what is known as the continental slope, a point at which the land descendsfurther and marks the beginning of the ocean itself. It is host to most of the world'soceanic plant and animal life and plays a vital role in energy production, from offshoreoil and gas reserves to renewable energy resources.[35]

When UNCLOS refers to the continental shelf, however, it is using "continental shelf" asa legal term.[36]While the EEZ captures a lot of the continental shelf for many countries,it does not capture all of it. As such, UNCLOS includes provisions for nations to layclaim to a continental shelf that exceeds 200 nautical miles from the baseline byestablishing the foot of the continental slope as set forth in Article 76, paragraphs 4-7.These provisions allow for an extension of an additional 150 nautical miles from the

baseline or 100 miles from the 2,500 meter depth.[37]

Nations exercise over the shelf thesovereign right to explore and exploit the non-living natural resources of the continentalshelf as well as the living organisms that live on the seabed itself. [38] The water above theportion of the continental shelf that is not contained within the EEZ remains part of thehigh seas (as does the airspace above that area). [39] Nations wishing to request anextension of sovereignty over an extended portion of their naturally occurring continentalshelf must do so within 10 years of UNCLOS coming into force for that particular nation.[40]

The extension of sovereignty to the extended continental shelf comes with a price. Anation that exploits resources on the continental shelf beyond the 200 nautical mile mark

is allowed five years in which to develop and exploit the resources of the shelf withoutcharge. Starting on the sixth year, a nation has to pay 1 percent of the value of theresources produced from the site. The rate of payments increase by 1 percent for eachyear until the twelfth year and is capped at 7 percent thereafter. Developing nations areexempted from this provision.[41]Revenues generated from these operations are depositedwith the International Seabed Authority and equally distributed among national parties toUNCLOS.[42]
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High Seas

Map illustrating the high seas. All areas in blue are considered part of the high seasand are not subject to national appropriation.

Waters beyond a nation's EEZ are considered to be the high seas. [43]The high seas are stillgoverned the "freedom of the seas" concept, albeit a modified version. Just as with theclassical version, no nation my lay claim to any portion of the high seas. [44] Per the termsof the treaty, "[t]he high seas are open to all States, whether coastal or land-locked."[45]On the high seas, nations are permitted freedom of navigation and overflight, freedom to

lay submarine cables and pipelines, freedom to construct artificial islands, freedom offishing, and freedom of scientific research.[46]Other provisions regarding the high seasinclude a prohibition on the transport of slaves, piracy, illegal drug trafficking, and thesuppression of unauthorized radio or television broadcasting.[47]

The Area

The "Area" is the seabed and ocean floor that is beyond the limits of national jurisdiction.[48] This is the portion of the seabed that is beyond the EEZ or the recognized continentalshelf of a country. It would be inaccurate to say that the Area is the seabed underneath thehigh seas, since the high seas can overlap portions of continental shelf that are subject to

national sovereignty. The Area is particularly unique in that UNCLOS designates it andthe resources it contains as "the common heritage of mankind."[49]No nation is allowed tolay claim to any part of the Area or its resources. Regarding the resources, "[a]ll rights inthe resources of the Area are vested in mankind as a whole...."[50] As a result, companiesthat wish to exploit the mineral resources of the Area will have to enter into a profitsharing agreement in which the profits derived from mineral resources captured in theArea will be shared with developing nations.

Agencies Created by UNCLOS

In order to administer UNCLOS, the treaty created four bodies to handle specific issues.

The following sections discuss the mission of each body and its founding authority.

Commission on the Limits of the Continental Shelf

The Commission on the Limits of the Continental Shelf was created to implement Article76 of the treaty, which is the article which allows for a nation to extend sovereignty overa portion of the continental shelf beyond the limits of the EEZ. [51] The Commission is


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comprised of 21 members who are specialists in the fields of geology, geophysics, orhydrography and are elected by the Nations Parties to the Convention. Members of theCommission are charged with evaluating data submitted by coastal nation requesting an extension of sovereignty overan extended portion of their naturally occurring continental shelf.[52]The Commission

was established and derives its authority from Annex II of the Convention.

International Seabed Authority

Logo for the International Seabed Authority, 'the Authority'

The International Seabed Authority is the organization that is responsible for thegovernance of the Area.[53] Article 156 of the Convention mandates the creation of theSeabed Authority, which is commonly referred to as "the Authority" throughout most ofthe treaty.[54] All nations that have agreed to be bound by UNCLOS are automaticallymembers of the Authority.[55] The Authority is comprised of three bodies: the Assembly,the Council, and the Secretariat.[56]

The Assembly

The Assembly acts as a legislative organ in which each member nation has onerepresentative. [57] Of the many powers and responsibilities entrusted to the Assembly, oneof the most important is the power to decide how revenues derived from deep seabedmining will be distributed. Other powers include the power to set policy regardingactivities in the Area and oversight of its management.[58]

The Council

The Council is a body comprised of 36 persons who represent various members of theAuthority itself (the nations bound by the treaty). Members of the Council are elected bythe Assembly and serve for a term of four years. [59] The Council acts as the executivebranch of the Authority and has the power of establishing the specific policies to bepursued by the Authority.[60] Other powers of the Council include establishing subsidiaryagencies (as needed) to carry out the functions of the Council, approve or reject work

plans related to the Area, oversee the collection of payments made to the Authority, andinstitute proceedings against a member nation in the Seabed Disputes Chamber (seeInternational Tribunal for the Law of the Sea below).[61]

Within the Council there are two Commissions: the Economic Planning Commission andthe Legal and Technical Commission. Each Commission is comprised of memberselected by the Council from a list of candidates nominated by the nations that are bound


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by UNCLOS. Members of either Commission serve for a term of five years and musthave no personal financial connections related to exploration or exploitation of resourceswithin the Area.[62]

Members of the Economic Planning Commission are required to have qualifications in

the areas of mining, management of mineral resources, international trade, orinternational economics and it is required that at least two members of the Commissionare from developing nations whose mineral exports be the same as those being minedfrom the seabed.[63]The primary function of the Economic Planning Commission is toexpound upon the relationship between the minerals being mined, the effect mining hason global prices for the mineral in question, and the effect changes in price may have ondeveloping nations.[64]

Members of the Legal and Technical Commission are required to have qualifications inthe areas of exploration, exploitation, and processing of mineral resources, oceanology,protection of the marine environment, or either economic or legal matters relating to the

ocean mining industry.

[65]

It is the responsibility of the Commission to review writtenplans for work activities to be conducted in the Area, prepare assessments of theenvironmental implications of activities in the Area, make recommendations to theCouncil regarding environmental protection of the Area, and to calculate the productionceiling and issue production authorization on behalf of the Authority.[66]

The Secretariat

The Secretariat of the Authority is comprised of the Secretary-General and his or herstaff. The Secretary General is elected for a term of four years. Nominations forSecretary-General are made by the Council and voted on by the Assembly. TheSecretary-General serves as the chief administrative officer of the Authority and isrequired to make an annual report to the Assembly on the work of the Authority. [67]

The Enterprise

Article 170 calls for the formation of an agency called "the Enterprise." The purpose ofthe Enterprise is to coordinate the exploration and exploitation of resources in the area.Annex IV of the treaty details the composition and governance of the Enterprise,however, since deep seabed mining has yet to start, the Enterprise has never been calledinto action.

International Tribunal for the Law of the Sea

Annex VI of UNCLOS establishes the International Tribunal for the Law of the Sea. TheTribunal is comprised of 21 members, no two of which may be from the same membernation.[68] Members of the Tribunal serve for a period of nine years, after which they areeligible for reelection to the Tribunal.[69]The Tribunal has formed a number of Chambersincluding the Chamber of Summary Procedure, the Chamber for Fisheries Disputed, theChamber for Marine Environment Disputes, and the Chamber for Maritime DelimitationDisputes.[70] The Tribunal is also the home of the Seabed Disputes Chamber, which isresponsible for adjudicating disputes pursuant to Part XI, Section 5 of UNCLOS, whichgoverns settlements of disputes that arise from deep seabed activities. [71]

Environmental Considerations

Although UNCLOS is not an environmental treaty, it frequently addresses environmentalconcerns. In addition to having an entire section dedicated to the protection andpreservation of the marine environment (Part XII), the treaty also contains numerousreferences to environmental duties and obligations throughout its many articles. Thescattered placement of all of the environmental references makes it difficult at times to
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put together a comprehensive understanding of the duties of member nations and thepowers they are granted to enforce the various provisions.

Section 1 of Part XII of UNCLOS sets the tone for a number of the environmentalprovisions laid out in the treaty. Part XII opens with Article 192: "States have an

obligation to protect and preserve the marine environment." This is immediately followedby Article 193: "States have the sovereign right to exploit their natural resources pursuantto their environmental policies," [emphasis added]. Nations are then subsequentlycharged with creating national law to address various pollution issues and are supposed toemploy "the best practicable means at their disposal and in accordance with theircapabilities." [72]Article 204 requires states to observe and evaluate the risks posed bypollution to the marine environment. In particular, nations are required to monitor theeffects of any activities that they permit or actually engage in.[73]

The following sections examine UNCLOS on various topical issues related to theenvironment in an attempt to create a comprehensive narrative.

Pollution Prevention (Generally)

Article 195 requires nations to "prevent, reduce and control pollution in the marineenvironment." Article 195 also prohibits nations from transferring pollution to anothernation, either directly or indirectly, or from turning one type of pollution into another.The prohibition on changing one pollutant into another may have impacts on futurecarbon mitigation schemes such as water-column carbon sequestration or sub-seabedsequestration. For more information, see Convention on the Prevention of MarinePollution by Dumping of Wastes and Other Matter (1972) and the 1996 Protocol.

Part XII of UNCLOS also encourages nations to participate in regional agreementsrelated to the environment and establishes duties of nations to their regional counterparts(see Articles 197-201). Some of the duties that nations owe to other regional nationsinclude the duty to notify of imminent danger to the marine environment from pollutionor actual damage from pollution.[74]Nations are encouraged to work together to formregional plans for the preservation of the marine environment as well as to developcontingency plans for responding to pollution incidents and coordinating with oneanother in data-sharing on regional marine pollution and establishing scientific criteriafor the promulgation of regulations regarding marine pollution. [75]

Dumping at Sea

Dumping is defined in Article 1 as "any deliberate disposal of wastes or other matterfrom vessels, aircraft, platforms or other man-made structures at sea" or the disposal ofthe vessels, aircraft, platforms, or structure themselves at sea.[76]UNCLOS makes anexemption for the disposal of wastes that are incidental to the normal operations ofvessels, aircraft, etc.[77]

Article 210 specifically addresses the issue of dumping and requires nations to enact theirown legislation on the issue. Paragraph 6 requires that national laws and regulations be atleast as effective as global rules and standards. These global rules and standards arearticulated in the Convention on the Prevention of Marine Pollution by Dumping ofWastes and Other Matter , which was concluded in London in 1972, the year prior to thestart of UNCLOS III.[78]

Coastal nations are recognized as the only authority that can approve any dumpingactivities within its territorial sea, its EEZ, or on its continental shelf. Nations are giventhe exclusive authority to authorize or deny such activities. Nations who authorizedumping activities are required to give consideration as to how other nations may beadversely affected by dumping activities in areas governed the local nation.[79]
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There are three ways in which anti-dumping measures can be enforced. The first meansof enforcement is by a coastal nation, which has the right to enforce anti-dumpingmeasures within its territorial sea, its EEZ, or its continental shelf. The second means ofenforcement is enforcement by Flag Nations, which may always enforce their own lawsagainst any violator flying its flag regardless of where the offense occurred. The third and

final means of enforcing anti-dumping measures is enforcement by a the third party,which would be a nation in which ships take on wastes within its territory. If multiplenations appear to have jurisdiction over an issue of dumping, only one is required to takeon the individual case.[80]

Fishing Rights

Many of UNCLOS's articles on fishing rights relate to who has the right to control andexploit various fish stocks. While these articles are not primarily environmental in nature,they do contain provisions on regulating overfishing, which is itself an environmentalconcern. The placement of these articles in Part V (governing the EEZ) and Part VII

(governing the high seas) as opposed to Part XII (governing environmental protection)may be read as an indicator of the economic and territorial focus associated withprotecting sovereign rights over fish stocks as opposed to an environmentally centeredapproach.

In the EEZ

Coastal nations have primary control over the fish stocks in their EEZ. As part of thisprimary control, the coastal nation is required to maintain the existing stock and protect itfrom over-exploitation. As a part of that responsibility, coastal nation get to determine the maximum allowable catch for agiven species.[81] While coastal nation are required to monitor and maintain fish stockswithin their EEZ, they are also required to provide for the maximum exploitation possiblethat will not threaten the population in question.[82]To that end, coastal nation are required to determinenot only how much of a specific species can be caught, but how much the nation itselfhas the capacity to catch. In instances where the nation cannot catch the full maximumallowable catch, the coastal nation is obliged to give other nations access to the surplus.[83]

Fish, however, do not recognize manmade boundaries. In recognition of this fact,UNCLOS provides special rules for species that cross various types of boundaries. Ininstances where one species of fish migrate within the EEZ's of multiple coastal nation, those nations areobligated to come to agreement on the conservation and development of such stocks .[84]Some species are considered "highly migratory" (see UNCLOS Annex I for a full list ofhighly migratory species). Nations engaged in fishing for these highly migratory speciesare required to cooperate with one another to maintain appropriate levels of these stockand to make sure that they are not overfished. [85]

Another consideration taken into account by UNCLOS are fish species that migratebetween internal waters and marine waters as part of their breeding cycle. Anadromousspecies, those that spawn in fresh water and later migrate toward marine waters, areprimarily the responsibility of the nation in whose rivers the fish originate.[86] The nation

of origin is allowed to determine the allowable catch for these species.[87] Forcatadromous species, those that live in fresh water and migrate to marine waters tospawn, are again primarily the responsibility of the coastal nation. [88] Harvesting of thesefish is limited to the EEZ. In cases in which the species travels through the EEZ ofmultiple countries, those countries must work together to establish rational managementof the species.[89]
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On the High Seas

All nations have the right to fish on the high seas subject to their treaty obligations. [90]Along with this right, nations have a duty to take measures to ensure the conservation ofliving resources on the high seas.[91] Nations who are fishing for the same species ordifferent species within the same area of the high seas are supposed to work together toconserve and protect the species from over-exploitation. [92]In determining maximumallowable catch, nations are to take measures to maintain or restore populations ofharvested species at levels which can produce the maximum sustainable yield and theyare to take into consideration the effects on species either associated with or dependent onthe harvested species.[93]

Marine Mammals

Coastal nations are allowed to pass laws more stringent than those for fishing regardingthe harvesting of marine mammals.[94]

Biodiversity

Article 196 requires nations to "take all measures necessary" to prevent the intentional oraccidental introduction of non-native species to a new part of the marine environment.Regarding the introduction of alien species the prohibition is on non-native animals that"may cause significant and harmful changes [to the local environment]." [95]It is hard,however, to know exactly what species will cause either significant or harmful changes tothe environment. For more information seeAlien Species and Aquatic Invasive Species.

Land Based Pollution

Article 207 requires nations to "adopt laws and regulations to prevent, reduce and controlpollution of the marine environment from land-based sources...."[96] Article 207specifically calls upon nations to regulate pollution that comes into the ocean from rivers,estuaries, pipelines, and outfall structures, which are the primary sources of land basedpollution in the marine environment. Paragraph 3 of Article 207 also encourages nationsto harmonize their policies on a regional level. This Article has, however, been criticizedas being weak since it lacks and enforcement mechanism and it relies upon locallegislatures to set their own priorities for land-based sources of pollution.[97]UNCLOSdoes address enforcement of land-based pollution measures in Article 213 by saying"States shall enforce their [own] laws and regulations adopted in accordance with Article207...."[98]

Atmospheric Based Pollution

Article 212 requires nations to adopt laws and regulations to prevent atmosphericpollution that will result in pollution to the marine environment. Article 222 compelsnations to enforce these measures once passed.

Pollution from Ships

Article 211 requires nations to pass laws and regulations governing pollution from shipsflying the nation's flag. Article 211 also allows nations to pass laws and regulationsaimed at preventing and controlling pollution from ships that enter both their ports andtheir territorial seas. In both cases, the nation must notify the international communityand the regulations cannot abridge the right of innocent passage.[99] Nations may also passlaws regulating pollution from ships in their EEZ, provided that the regulations conformto international rules and standards.[100] Under certain circumstances nations may bepermitted to enact more stringent rules or regulations, provided that they can prove a
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need or special circumstance exists for which international rules and standards are notsufficient.[101]

Enforcement

Enforcement of the provisions of UNCLOS can be a complicated issue as multiplenations may appear to have jurisdiction over a single issue. What happens, for example, ifa vessel flying the flag of one nation is accused of dumping in the territorial sea ofanother? What if the same ship was caught dumping on the high seas by a ship flying theflag of another nation? The following sections attempt to explain how various portions ofthe environmental provisions of UNCLOS are enforced and by whom.

Enforcement by the Flag Nation

Nations have vast powers of enforcement over vessels flying their flag. Flag nations arerequired to keep a register of ships which fly their flag and assume jurisdiction of thoseships and crew under international law.[102] Flag nations are responsible for adopting lawsand regulations targeted at preventing and controlling pollution from ships which fly theirflag and are to provide for the effective enforcement of such laws, regardless of where aviolation occurs.[103]

Flag nations are required, at the request of another nation, to investigate allegedviolations committed by vessels flying their flag. If the nation believes that a violationhas occurred, the nation has a duty to promptly institute proceedings in accordance with

the its laws.[104]

Flag nations are to notify the requesting nation and any relevantinternational organizations of any actions taken and their eventual outcome. [105]

Flag nations also have the ability to halt proceedings against one of its vessels on chargesrelated to the prevention of pollution under Article 228, provided that: 1) the violation didnot occur in the territorial sea of the nation instituting proceedings, 2) the flag nationtakes over the proceedings within six months of the date the proceedings were begun, 3)the case is not one of major damage to the coastal nation, and 4) the flag nation does nothave a history of repeatedly disregarding its obligations to enforce the applicableinternational rules regarding violations committed by its vessels.[106]

Flag nations are also obligated to make sure that ships flying their flag meet therequirements of seaworthiness.[107] In the event a ship enters the port of a foreign nationand it is found to not be in a seaworthy condition, the port nation is obliged to detain thevessel and require it to be repaired prior to its continuing its voyage. [108]

Enforcement by Port Nations

Port nations have the authority to enforce their own laws with regards to violations thatoccur in their territorial sea and EEZ, pursuant to Article 220(1). Customary law has formany years recognized the right of a port nation to exercise jurisdiction over a vessel thatdocks in its ports. Under customary international law, a nation does not have to grant

access to its ports and, as such, when ships enter port they voluntarily submit themselvesto the sovereignty of the port nation. [109]

Article 218 give port nations new authority with which they may investigate and, whensufficient evidence exists, prosecute violations of UNCLOS's prohibitions againstpollution.[110] If the violation occurs on the high seas, the port nation may undertake theinvestigation and initiate prosecution itself.[111] If the violation occurred in the territorialsea or internal waters of another nation, the port nation may only begin an investigation
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and/or prosecution at the request of either: 1) the nation in which the violation occurred;2) the flag nation; or 3) a nation that has itself been damaged or threatened by thedischarge violation. In the event that the port nation is one that has been damaged orthreatened by a discharge violation that has occurred outside its own territorial sea, it hasthe ability to initiate an investigation and prosecution itself. [112]

It is important to note that this ability is derived solely on the basis of treaty and not fromcustomary international law.[113] Also, it is important to note that the flag nation may stilltake the prosecution for itself, per Article 228 as discussed above. In the event that theflag nation does take over the prosecution of such a violation, the port nation is obligatedto drop the charges against the foreign vessel upon the conclusion of the proceedings bythe flag nation.[114] Port nations that opt to impose penalties on foreign vessels must do sowithin three years from the date that the violation was committed.[115]

Port nations also have the right to stop vessels from proceeding from port if they arefound to not meet the international rules and standards for seaworthiness and thereby

threaten the marine environment. Nations may only allow the vessel to proceed to thenearest repair yard and, upon completion of all necessary repairs, must allow the ship tocontinue on its voyage.[116]

Enforcement by Coastal Nations (Not Acting as Port Nations)

The powers of a coastal nations to enforce various anti-pollution measures variesdepending on the location of both the suspected violation and the location of the ship atthe time the coastal nation chooses to act its suspicion. In cases where ships are currentlynavigating in the territorial sea of a coastal nation and it is suspected that a violation ofeither international anti-pollution laws or the coastal nation's laws has occurred while the

vessel was navigating through the territorial sea, the coastal nation has the authority toundertake a physical inspection of the vessel and may institute proceedings against it.Note that there are a few criteria that must be met. First, the ship must have committedthe violation in the territorial sea of the coastal nation and secondly, the ship must still bein the territorial sea of the coastal nation. Only then can agents of the coastal nationundertake an investigation of the ship.[117]

For suspected violations that occur in the EEZ of the coastal nation, the power andauthority of that nation is not as broad. In cases where a suspected violation has occurredin the EEZ and the vessel is still in either the territorial sea or the EEZ, the coastal nationis permitted to request information regarding the ship (specifically its identity, port ofregistry, its last and next port of call, and other information the coastal nation deemsnecessary to establish whether or not a violation has occurred).[118] Should the ship beunwilling to supply that information, or if the information supplied is clearly false, onlythen can the coastal nation undertake a physical investigation of the vessel.[119] Here therequirements are that the suspected violation occurs in the EEZ, the vessel in questionmust still be in either the territorial sea or the EEZ, a request must be issues forinformation, and only after a failure of the ship to comply with the request of the coastalnation may that nation undertake a physical investigation of the ship.

The preceding paragraphs only cover suspected violations. If, however, there is "clearobjective evidence" that a vessel currently navigating in a costal nation's territorial sea orEEZ has committed a violation in the EEZ "resulting in a discharge causing majordamage or [the] threat of major damage to the coastline or related interests of the coastalState, ... that State may... institute proceedings, including detention of the vessel."[120] Inorder for the coastal nation to take such measures, there has to be clear evidence of theviolation occurring, the violation must result in major damage to the coastline or theinterests and resources of the nation or the threat of major damage, and the vessel muststill be within the territorial sea or the EEZ.
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General Provisions Regarding Enforcement

UNCLOS provides some general requirements regarding nations enforcing their laws orinternational law against ships from another nation. First, any enforcement measurestaken against a foreign vessel can only be conducted by ships that are clearly marked and

identifiable as being in the service of the enforcing nation's government.[121]

Whenengaging in enforcement activities, agents of the coastal nation have an obligation to notendanger the safety of navigation of other vessels and also to not bring any detainedvessel to an unsafe port.[122] In the event that a nation takes action against a foreign vessel,the nation has a duty to inform the ship's flag nation of what measures were taken. [123]With regard to the prevention of pollution, vessels owned and operated by a foreignnation on governmental non-commercial missions are protected by sovereign immunity, aprinciple that shields these vessels from liability. [124]

On the matter of assessing penalties against a foreign vessel, UNCLOS states that onlymonetary penalties may be imposed regarding violations committed by vessels outside

the territorial sea of the coastal nation. In instances where a violation has occurred withinthe territorial sea, monetary penalties are the only type of penalties that may be imposedunless the vessel has committed an act of willful and serious pollution.[125]UNCLOS alsoprovides that civil proceedings may be instituted against a vessel of a foreign nationregardless of what criminal proceedings have already taken place or what penalties havebeen assessed against the vessel.[126]

Scientific Explortation

All nations have the right to conduct scientific research in the oceans, provided that theresearch is 1) conducted exclusively for peaceful purposes; 2) conducted with acceptable

scientific methods; 3) does not interfere with other legitimate uses of the sea; and 4)conducted with respect to the other terms of the UNCLOS treaty, including thosepertaining to protection and preservation of the marine environment. [127] Coastal nationshave the exclusive right to regulate, authorize, and conduct scientific research in theirterritorial sea, which means that scientific research within the territorial sea can only beconducted with the expressed consent of the nation.[128]

Foreign nations that wish to conduct scientific research in the EEZ or on the continentalshelf of another nation may do so, but only with the consent of the other nation. Nationsmay reject a requests by a foreign nation for access to their EEZ or continental shelf if theproject: 1) is of direct significance for the exploration and exploitation of natural

resources (living or non-living, unless the research is to be conducted on the continentalshelf more than 200 nautical miles from the baselines); 2) involves drilling into thecontinental shelf, the use of explosives, or the introduction of harmful substances into themarine environment; 3) involves the construction or use of artificial islands; or 4) if eitherthe proposal provided to the nation regarding the research was inaccurate or if therequesting nation has outstanding obligations to the coastal nation for prior researchprojects.[129]

Foreign nations wishing to conduct scientific research off the coast of another nationmust inform the coastal nation of the nature and objectives of the project, the methods tobe used, the precise location where the research is to take place, the timeframe for the

research, information regarding the organization conducting the actual research, and towhat extent the coastal nation may take part in the project. [130]While undertakingscientific research off the coast of a nation, the research team from the visiting nationmust guarantee the right of the coastal nation to participate or be represented in theresearch project without obligation to contribute to the costs of the project. The visitingresearch team from the foreign nation is also obliged to provide the coastal nation withpreliminary and final reports as well as access to all data and samples taken during thecourse of the project. Visiting research teams from foreign nations must also notify the


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coastal nation of any changes to the agreed upon plans for conducting the research andmust also remove any and all equipment once the experiment is completed (unlessanother agreement has been made with the coastal nation regarding removal).[131]

Present Status and United States Interpretation

Presently there are 160 nations that have ratified UNCLOS. The United States, however,is not one of them. When the treaty was originally concluded in 1982, then PresidentRonald Reagan chose not to sign the treaty on the grounds that the proposed internationalseabed regime governing the mining of the seabed would both hamper the developmentof seabed mineral resources and would be contrary to principles of free enterprise.[132]Even though the President Reagan opted not to sign the treaty, in 1982 he issued anOcean Policy Statement announcing that the United States both accepted and would actin accordance with the Convention on all issues save those of deep seabed mining. [133] Inthe same proclamation, President Reagan created the EEZ for the United States. [134] Inmaking that proclamation, the United States acquired the largest EEZ in the world, one

that stretched off the United States mainland, Alaska, and Hawaii, as well as islandterritories in both the Atlantic and Pacific. In 1988, President Reagan acted again toexpand the territorial se from 3 nautical miles to 12 nautical miles. The final change inthe ocean boundaries of the United States occurred in 1999 when then President William(Bill) Clinton established the contiguous zone.[135]

Criticisms

While generally hailed as a monumental achievement in the arena of international law,UNCLOS has also received its fair share of criticism. One of the most often heardcriticisms is the treaty's reliance upon national legislation to implement its provisions.

The problem becomes one in which the treaty must rely on national legislatures to set, forexample, pollution provisions as a priority on the legislative agenda. While the benefit ofsuch a scheme is that it allows the national autonomy, the weakness is that nations maynot view such legislation as a priority. National administration of the law has also comeunder criticism, as some countries have shown a willingness to excuse violations thathave happened abroad. One result of such weak national enforcement and regulation isthe emergence of "flags of convenience" nations.[136]

Another criticism related to UNCLOS relates to the jurisdictional breakdown ofsovereignty. The way in which control of ocean resources has been divided does notreflect the natural order of the marine environment. Provisions that govern ensuring that

fish stocks are not over-depleted, for example, divide control and conservation measuresbased on distance from the shores as opposed to the natural order of the ecosystem. Thesedivisions have been accused of hampering cohesive management of resources if favor ofrespecting national sovereignty.[137]

And then there is the criticism that kept the United States from signing UNCLOS, that ofthe deep seabed mining regime. As was already mentioned, the profit sharing provisionsrelated to deep seabed mining have been hailed by some as being antithetical to principlesof free-market capitalism.
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the law of the sea treaty unclos 1982

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