United Nations Convention on the Law of the Sea

The United Nations Convention on the Law of the Sea (UNCLOS) is an international treaty which was adopted and signed in 1982 in Montego Bay (Jamaica), at the end of almost ten years of negotiations (1973-1982). It replaced the four Geneva Conventions of April, 1958, which respectively concerned the territorial sea and the contiguous zone, the continental shelf, the high seas, fishing and conservation of living resources on the high seas. The new text has a more global vocation in that it addresses all the various aspects, the maritime areas as well as their activities and consequences (various kinds of pollution, for example). It incorporated all the established facts in the four earlier conventions within a more global perspective while developing new rules. Its preamble clearly describes the global approach that had been adopted: "… the problems of ocean space are closely inter-related and need to be considered as a whole". It is presented, and quite rightly so, as a "legal order for the seas and oceans". The Convention thus confirms already existing marine areas, from the coast to the open sea, and from the surface to the seabed or, as in the case of Exclusive Economic Zones (EEZs), creates them in the course of its development.

Over time, the Convention has become the legal framework for marine and maritime activities. The appropriate political body to handle them is the General Assembly of the United Nations. This principle is recalled each year in the resolution on the law of the sea adopted by the UNGA.

The Convention has created three new institutions on the international scene :

– the International Tribunal for the Law of the Sea, headquartered in Hamburg (Germany),

– the International Seabed Authority, headquartered in Kingston (Jamaica),

– the Commission on the Limits of the Continental Shelf, based in the United Nations Headquarters in New York.

The Convention came into effect in November, 1994. It now has 162 Parties including the European Union for its share of jurisdictions. Generally speaking, the USA is the most important non-subscriber to the UNCLOS, solely due to its strong opposition to the regime concerning exploitation of natural resources on the seabed beyond national jurisdictions. Aside from this particular position, the USA considers the rules of the Convention as a continuation of existing regulations in the law of the sea, because they are the expression of customary law (for example, freedom of navigation and, in general, rules applying to the high seas); elsewhere, the USA has integrated legal entities created by the Convention into its national law, such as the Exclusive Economic Zone or EEZ.

The Convention consists of 320 articles, together with 9 appendices on different topics. It has been the subject of two implementation Agreements: the Agreement concerning Part XI of the Convention dated July, 1994, and the Agreement regarding so-called overlapping stocks*, ratified in August, 1995. These texts, while serving to implement the Convention, live their legal lives autonomously. A State may be a Party to the Convention without being a Party to either one of these Agreements. This situation is not specific to the law of the sea: it can also be found in what one might call the Barcelona system (the Barcelona Convention and its numerous Protocols, each of which is subject to its own terms of ratification and thus implementation).