The United Nations Convention on the Law of the Sea

7/23/2019 The United Nations Convention on the Law of the Sea

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THE UNITED NATIONS CONVENTION ON THE LAW OF THE

SEA

The 1982 United Nations Convention on the Law of the Sea (UNCLOS) is the

most comprehensive attempt at creating a ni!ed regime for governance of

the rights of nations with respect to the wor"d#s oceans$ The treat% addresses

a nm&er of topics inc"ding navigationa" rights' economic rights' po""tion of

the seas' conservation of marine "ife' scienti!c ep"oration' pirac%' and more$

The treat%' one of the "ongest in histor%' is comprised of 2* artic"es and 9

annees' representing the codi!cation of cstomar% internationa" "aw and its

progressive deve"opment$

ITS RELEVANCE AS A LEGAL INSTRUMENT

+"thogh UNCLOS is not an environmenta" treat%' it fre,ent"% addresses

environmenta" concerns$ -n addition to having an entire section dedicated to

the protection and preservation of the marine environment (.art /--)' the

treat% a"so contains nmeros references to environmenta" dties and

o&"igations throghot its man% artic"es$

1. Pollution Prevention (Generally)

+rtic"e 190 re,ires nations to prevent' redce and contro" po""tion in the

marine environment$ +rtic"e 190 a"so prohi&its nations from transferring

po""tion to another nation' either direct"% or indirect"%' or from trning one

t%pe of po""tion into another$ The prohi&ition on changing one po""tant into

another ma% have impacts on ftre car&on mitigation schemes sch as

waterco"mn car&on se,estration or s&sea&ed se,estration$ 3or more

information' see Convention on the .revention of 4arine .o""tion &%

5mping of 6astes and Other 4atter (1972) and the 199 .rotoco"$

2. Dumping at Sea

5mping is de!ned in +rtic"e 1 as an% de"i&erate disposa" of wastes or other

matter from vesse"s' aircraft' p"atforms or other manmade strctres at sea

or the disposa" of the vesse"s' aircraft' p"atforms' or strctre themse"ves at



sea$ UNCLOS maes an eemption for the disposa" of wastes that are

incidenta" to the norma" operations of vesse"s' aircraft' etc$

3. Fishing Rights

4an% of UNCLOS#s artic"es on !shing rights re"ate to who has the right to

contro" and ep"oit varios !sh stocs$ 6hi"e these artic"es are not primari"%

environmenta" in natre' the% do contain provisions on reg"ating

over!shing' which is itse"f an environmenta" concern$ The p"acement of these

artic"es in .art : (governing the ;;<) and .art :-- (governing the high seas)

as opposed to .art /-- (governing environmenta" protection) ma% &e read as

an indicator of the economic and territoria" focs associated with protectingsovereign rights over !sh stocs as opposed to an environmenta""% centered

approach$

ENFORCEMENT

;nforcement of the provisions of UNCLOS can &e a comp"icated isse as

m"tip"e nations ma% appear to have =risdiction over a sing"e isse$ 6hat

happens' for eamp"e' if a vesse" >%ing the >ag of one nation is accsed of

dmping in the territoria" sea of another? 6hat if the same ship was caght

dmping on the high seas &% a ship >%ing the >ag of another nation?

1. Enforement !y the Flag "ation

Nations have vast powers of enforcement over vesse"s >%ing their >ag$



2. Enforement !y Port "ations

.ort nations have the athorit% to enforce their own "aws with regards to

vio"ations that occr in their territoria" sea and ;;<' prsant to +rtic"e

22*(1)$

3. Enforement !y #oastal "ations ("ot $ting as Port "ations)

The powers of a coasta" nations to enforce varios antipo""tion measres

varies depending on the "ocation of &oth the sspected vio"ation and the

"ocation of the ship at the time the coasta" nation chooses to act its

sspicion$

%. General Provisions Regar&ing Enforement

UNCLOS provides some genera" re,irements regarding nations enforcing

their "aws or internationa" "aw against ships from another nation$

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The Nature of International Law

The natre of internationa" "aw answers the ,estionsF 6hat is it? -s it "aw?-s it a "ega" s%stem? 5oes it create &inding o&"igations? 6h% do contries

comp"%? 6hat is its signi!cance?

Denition

-t is a s%stem of princip"es and r"es designed to govern re"ations &etween

sovereign states (and other internationa" persons)$

!u"li# $% !ri$ate International Law

.rivate internationa" "aw does not necessari"% invo"ve governments and

states$ ;$g$ sitations invo"ving e"ements within Ontario$ +"so contracts

&etween two contries$ .&"ic internationa" "aw invo"ves re"ations

&etweenGamong governments and states$ There is often over"ap &etween

p&"ic and private e$g$ internationa" trade' p&"ic agreements sch as N+3T+

which impact private internationa" "aw$

I& thi& "o'( of rule reall( law) Co*+onent& of a Le,al S(&te*

1$ ;nforcement2$ .rom"gated &% "egis"atre (which has &een e"ected' is in contro"' has

athorit% and pop"ar recognition) H this is the wa% in which r"es are

made$ od% of r"es that prport to govern &ehavior (.rimar% r"es)I$ Corts a"so genera" r"es' app"% and interpret "egis"ation



0$ Secondar% r"es H r"es a&ot r"es$ Jow to identif%Gcreate primar%

r"es' r"es of enforcement of primar% r"es

Le,iti*a#(

Law is determined &% a c"aim to "egitimac%$ -f it is imposed ar&itrari"% &% a

dictator' it is not "aw$ t if there were a mora" theor% &ehind it' we are more

apt to ca"" it "aw$ + r"e is "egitimate if it is Knatra""% appropriate (Natra"

Law H se"fevident &% eercise of reason)$ +"ternative"%' a r"e is on"%

"egitimate if it is genera""% accepted &% pop"ar consent (positivism)$ Or

r"es are "egitimate &ecase the% are necessar% for common srviva"$

Hi&tor(

-nternationa" "aw has a"wa%s &een ;rocentric and in>enced &% 6estern

thoght and histor%$ -t originates after the &reap of the Jo"% @oman

;mpire in the 10**s$ The Treat% of 6estpha"ia in 1I8 created a s%stem of

separate states$ -n order to srvive individa""%' states had to devise wa%s to

"ive with other entities$ @"es sho"d &e natra""% appropriate$ The 18th

centr% was one of "aisseMfaire po"icies H Kwe are on"% &ond &% the r"es

which we orse"ves have agreed to H and the idea of nationa" sovereignt%$

-n the 19th centr%' with improvements in techno"og%' &rta" wars' etc$'

change was needed H hence the Aeneva Convention and increased notions of se"fdetermination$ The 2*th centr%' with increasing con>icts and

incidences of genocide' there was a revisiting of natra" "aw concepts and an

epansion of hman rights "aw$ 6ith techno"og% came the !e"ds of

aerospace and te"ecommnications "aw$

The Unite' Nation&

The UN can create "aw &% a process in which mem&ers agree that a

dec"aration from the "egis"atre &ecomes "aw$ There is no centra"

government in the UN H it is mere"% a form for discssionGagreement of

reso"tions$ +doption of reso"tions is s&=ect to the veto of the 0 permanent

mem&ers$

The Secrit% Conci" previos"% o&tained consent from signing of Charter$

The signing of the Charter &inds signors$



The -nternationa" Cort of Dstice

Contries need not accept the =risdiction of the Cort$ On"% I* contries

crrent"% accept the corts =risdiction notwithstanding certain reservations$

(e$g$ Canada has reservations concerning !sheries)$ The -nternationa" Cort

of Dstice is an ar&itration &oard H it has no niversa" app"ication$ The 6arCrimes Tri&na" is for individa"s' not states$

A#tion& in re&+on&e to a "rea#h of International Law

-f one part% fai"s in its o&"igations to %o' %o can ignore %or o&"igations to

them to impose adverse conse,ences e$g$ freeMe assets' sever dip"omatic

re"ations' impose sanctions$ This is the enforcement mechanism &t there is

not centra" athorit%$ So can we sti"" ca"" it "aw?

Ar,u*ent& in fa$our of #allin, it law

The o&=ectives are the same as an% "ega" s%stem H &ringing a&ot order and

=stice &etween states and individa"s$ -t prports to create rights and

o&"igations and to protect the common interest$ Jowever there is not

instittiona" &acp for primar% r"esF

1$ -t is a"so "aw &ecase states genera""% act as if there is "aw conferring

o&"igations and rightsF

2$ 5omestic app"ication (e$g$ P&ec reference H domestic corts "oo tointernationa" "aw)F$ States &% and "arge comp"% with the "aw &ecase it is convenient to

their interdependence$



The Nature of International Law and the Concept of Sources

The concept of the ‘sources of law’ is frequently to be encountered in legal writing in the field of international law, and in the decisions of international tribunals. While at the level of the application of this system, that is to say in the direct relations and negotiations between States, the notion of sources isless visible, it nevertheless underlies any claim to a legal entitlement, and any complaint of a breach of international law.

This is one way in which, considered from the standpoint of the systems of law in force in the

various countries and regions of the world, international law is different. While it is no longer possible, ashistorically it once was, to suggest that as a system it does not deserve the name of ‘law’ the lawyer versed in one or more systems of domestic law may well be confused by the absence of certain familiar landmarks, and the presence of unusual features. The concept of ‘sources of international law’ is one of these, as is the very fact that international law, in its everyday application, appears to require such aconcept, which does not normally need to be invoked in domestic national! systems, though it is of course present there also.2

"ven a definition of ‘law’ in the international conte#t may not be an entirely simple matter$ but letus offer a simple working definition for immediate purposes% it is, shall we say, a system of preceptsgoverning relations between a defined group of persons or entities the ‘sub&ects’ of law!, such that an act

of compliance or non'compliance with those precepts involves certain consequences, which areindependent of the will of the actor$ this in the sense that the actor may choose to comply, or to refuse, inthe knowledge and possibly with the intention that the appropriate consequence will follow, but is not freeto choose whether or not the act will have those predetermined consequences.

(rom where does international law derive its content and its authority) *t the level of domesticlaw, questions of this kind rarely need to be posed, because the answer in most cases is evident. *fundamental element of a legal and social structure is a legislature, whatever particular form it may take.+f the legislator has spoken, the result is unless otherwise stipulated! binding law, to be observed by all persons present on the territory. The primary ‘source’ of law is thus the legislature. +n some legal systems,there may e#ist also a body of law established over the years by decisions of the courts, not in application

of legislation but of a body of ‘common law’ or ‘customary law’, and this too may be regarded as a‘source’.

*lso absent from the international scene is any system of public courts, including a court of lastresort, not only open to all members of the international community, but having compulsory and binding &urisdiction over each of them. The &urisdiction of the +nternational ourt of -ustice hereafter ‘the +-’!remains voluntary, even for members of the nited /ations, who are as such parties to its Statute. Theree#ists, however, a large and continually growing number of treaties, bilateral and multilateral, providing

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for each of the parties to bring a dispute with another party before the +-, or before another instancehaving powers of binding settlement. *ll law has ultimately to be put to the test of ‘0ow would a courtdecide)’ ubi judex, ibi jus!, even when, as in the case of disputes between many members of theinternational community, there e#ists no mechanism for &udicial e#amination and settlement unless anduntil the parties so agree. +n the courtroom the question has to be ‘What is the law)’ and not ‘what ought

the law to be)’

A COURSE REQUIREMENT

ININTERNATIONAL LAW

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NATURE OF INTERNATIONAL LAW

K6hi"e it is tre that internationa" "aw dea"s with internationa" disptes' "ie an%

other s%stem of "aw the ro"e of internationa" "aw is to reg"ate re"ations and ths

he"p to contain and avoid disptes in the !rst p"ace$ the s&stantia" part of

internationa" "aw' therefore' does not concern dispte reso"tion &t dispte

avoidance$ it focses on the da%toda% reg"ation of internationa" re"ations$

The nature itse"f speas a&ot the de!nition of internationa" "aw' its

"egitimac%' and &inding athorit%$

WHAT IS INTERNATIONAL LAW)

-nternationa" "aw is part of a discourse of legitimacy as opposed to a

discourse of power in internationa" societ%$ -t is part of the "arger idea that

internationa" condct sho"d &e s&=ect to normative constraints$

DEFINITIONS

6e thin of "aw in terms of a vertical or hierarchical s%stem of athorit%'

&aced &% sanctions$

-ohn Au&tinQ "aw proper is a command from a determinate athorit% &aced

&% force

Dean A#he&on mch of what is nown as internationa" "aw is a &od% of

ethica" disti""ation rather than tre "aw

S.STEMS OF AUTHORIT.

'he role of the u&ge in domestic s%stems (especia""% common "aw s%stems

"ie ritains) is mch more proactive in interpreting "aw$ Note a"so the

doctrine of precedence in common "aw s%stems Hsome cases in eRect reate

"aw &% esta&"ishing precedents in sitations where the "aw might &e

ncertain or otdated$ -n sch cases "aw is not a command from

par"iament$



'he hierarhial nature of "ega" decision maing Hthere are severa" "a%ers of

"awmaing (eg$ The Cort of +ppea" in ritain

'he role of santions Hwe o&e% "aws for man% reasons other than fear of

pnishment and sanctions are mch "ess important otside the strict area of

crimina" "aw$$

Some arge that there are functional equivalents to "egis"atres' po"ice

and corts in internationa" societ% &t this is a re"ative"% wea argment'

especia""% in respect of economic and mi"itar% sanctions (the% hrt the

innocent as we"" as the gi"t%' the distinction &etween a sanctioning and a

nonsanctioning war is not c"ear' se"f he"p derives from might is right

assmptions' the ana"og% with mnicipa" "aw is wea$)

The doctrine of in#or+oration (the notion that states ma% ep"icit"%

inorporate internationa" "aw into their domestic s%stems%

The natre of 'e#i&ion/*a0in, +ro#e&&e& (eg in governmenta" foreign

aRairs departments and their dependence on identi!a&"e r"es ma% "ead

them to treat internationa" "aw as &inding

t some of these are not strong argments$

The strongest point in favor of the rea"it% of internationa" "aw is that most

states' most of the time' o&serve it$ 6h%?

.reference for order' ,asisanctions' reciprocit%' shared princip"es andtechni,es of "ega" reasoning$

WH. IS IT 1INDING

6h% is internationa" "aw &inding pon states? Two argments sedQ

1 Natra" "aw Hinternationa" "aw em&odies princip"es that are inherent"%right $

2 .ositivism states have onsente& to internationa" "aw in some sense$

ITS SCO!E

-nternationa" "aw inc"des &oth the cstomar% r"es and sages towhich states have given epress or tacit assent and the provisions of



rati!ed treaties and conventions$ -nternationa" "aw is direct"% and strong"%in>enced' a"thogh not made' &% the writings of =rists and p&"icists' &%instrctions to dip"omatic agents' &% important conventions even when the%are not rati!ed' and &% ar&itra" awards$ The decisions of the -nternationa"Cort of Dstice and of certain nationa" corts' sch as priMe corts' are

considered &% some theorists to &e a part of internationa" "aw$ -n man%modern states' internationa" "aw is &% cstom or statte regarded as part of nationa" (or' as it is sa""% ca""ed' mnicipa") "aw$ -n addition' mnicipa"corts wi""' if possi&"e' interpret mnicipa" "aw so as to give eRect tointernationa" "aw$

+"thogh internationa" "aw is most"% made &etween States or in

internationa" "aw' a in re"ation to States' its eRects state is a recogniMed are

&roader and can a"so aRect and independent contr% other entities$

Sometimes' these are ca""ed nonState +ctors and inc"de individa"s'

corporations' armed mi"itant grops' grops that wish to secede or &rea

awa% from a State' and other co""ective grops of peop"e' sch as minorities

(ethnic' re"igios' "ingistic) and -ndigenos peop"es$

+n important aspect of internationa" "aw is reso"ving internationa"

disptes' &t it is on"% one part$ Lie an% "ega" s%stem' internationa" "aw is

designed to reg"ate and shape &ehavior' to prevent vio"ations' and to

provide remedies for vio"ations when the% occr$

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Documents

The United Nations Convention on the Law of the Sea