You are on page 1of 8

Introduction The 1982 United Nations Convention on the Law of the Sea (UNCLOS) is the most comprehensive attempt

at creating a unified regime for governance of the rights of nations with respect to the world's oceans. The treaty addresses a number of topics including navigational rights, economic rights, pollution of the seas, conservation of marine life, scientific exploration, piracy, and more. The treaty, one of the longest in history, is comprised of 320 articles and 9 annexes, representing the codification of customary international law and its progressive development. Historical Background Since humanity first set forth upon the seas, the issue of sovereign control over the oceans has been an ongoing concern. Prior to the 20th century, the oceans had been subject 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 oceans were under the jurisdiction of a nation. The cannon-shot rule set forth that a nation controlled a territorial sea as far as a projectile could be fired from a cannon based on shore. In the 18th century this range was approximate three nautical miles. As time progressed, three miles became the widely accepted range for the territorial sea. 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 the technological developments of the mid-19th and early-20th centuries, however, not only did ships become more powerful, but technology allowed humanity to exploit ocean resources that had never before been envisioned. Fishermen, once limited to areas near their own coasts, were now equipped with vessels that could allow them to stay at sea for months 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 the world being depleted without regard to the stability of their numbers. Evolving technology also allowed for the exploitation of previously inaccessible off-shore resources, most notably oil (but also diamonds, gravel, and precious metals). To illustrate 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 400 million tons. As a matter of perspective, just in the Gulf of Mexico, the United States alone 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.

In order to protect local resources, be they biological or mineral, nations began expanding their claims of sovereignty beyond the traditional 3 mile limit. The first nation to challenge the longstanding freedom of the seas doctrine was the United States. On September 28, 1945, President Harry S. Truman signed what has become commonly known as the Truman Proclamation. The proclamation set a claim of sovereignty by the United States to the outer continental shelf (OCS) and the resources therein as well as establishing the right of the U.S. to establish conservations zones "in areas of the high seas contiguous to the coasts of the United States."[5] While

recognizing some limited sovereignty over an expanded region of the sea, the proclamation was careful to stipulate that 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 followed suit. By 1950, Argentina was actively claiming its continental shelf as well as the water column above it, Ecuador, Chile, and Peru were asserting rights over a 200-mile zone in order to protect its biological resources from foreign fleets, and a spate of Arab and Eastern European nations were laying claim to a 12-mile territorial sea. There was a growing understanding, however, that such a fractured regime could not continue.[7]

UNCLOS I Recognizing the conflicts that were resulting from the current regime, the General Assembly adopted resolution 1105 (XI), which called for the convening of the United Nations Convention on the Law of the Sea in Geneva in 1858. Eighty-six nations participated (now commonly referred to as UNCLOS I). The meeting produced four separate conventions [8]: 1) the Convention on the Territorial Sea and the Contiguous Zone (established sovereignty rights and rights of passage through the territorial sea, established the Contiguous Zone to extend 12 nautical miles from the baselines, but failed to 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 of undersea cables and pipelines);[10] 3) the Convention on Fishing and Conservation of the Living Resources of the High Seas (established the right of coastal nations to protect living ocean resources, required nations whose fleets leave their territorial sea to establish conservation measures, and established measures for dispute resolution);[11] 4) and the Convention on the Continental Shelf (established the regime governing the superjacent waters and airspace, the laying and maintenance of submarine cables or pipelines, the regime governing navigation, fishing, scientific research and the coastal nation's competence in these areas, delimitation, and tunneling).[12] The Convention also produced an Optional Protocol of Signature Concerning the Compulsory Settlement of Disputes (provides for the compulsory jurisdiction of the International Court of Justice, or for submission of the dispute to arbitration or conciliation).[13] While UNCLOS I saw a significant development in the international legal regime governing the oceans, there were still many issues left unsettled. UNCLOS II In an attempt to deal with the issues that remained unresolved after UNCLOS I, the General 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 in early 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 unable to come to consensus on the issues at hand.[14] UNCLOS III

Frustrated by the continuing inconsistency in the ocean governance regime, Malta's ambassador to the United Nations, Arvid Pardo, called upon the General Assembly to take action and called for "an effective international regime over the seabed and the ocean floor," that clearly defined national jurisdiction.[15] One month later, the General Assembly adopted resolution 2467 A (XXIII) and resolution 2750 C (XXV), which created 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 Sea meeting to be held in 1973.[16] The deliberations lasted for nine years, saw the participation of 160 nations, and concluded in 1982 with the United Nations Convention on the Law of the Sea, which is now commonly referred to as simply "UNCLOS" or the Law of the Sea Treaty.[17] UNCLOS is one of the largest, and likely one of the most important, legal agreements in history. The treaty contains 320 articles and 9 annexes. It synthesizes and builds upon the agreements that were developed at the first conference (see UNCLOS I above). The agreement addresses a myriad of issues including navigational rights of ships and aircraft, limits on the extension of national sovereignty over the oceans, environmental protection of the oceans, conservation of living resources and mining rights. While UNCLOS was first signed in December of 1982, the agreement did not come into force until November of 1994, a period of nearly 12 years.[18] UNCLOS required 60 signatures for ratification and could only enter into force one year after the final nation had ratified or acceded to the treaty.[19] The main reason many nations took so long to sign the treaty is because of Article 309, which prohibits nations from taking out reservations to any part of a treaty. A reservation is a statement made by a nation when accepting a treaty, whereby it excludes or modifies the legal effect of certain provisions of a treaty as those terms apply to the nation accepting the treaty.[20] The inability of a nation to take out reservations to particular terms of the treaty caused many nations to hesitate. UNCLOS represented a significant number of compromises and some of the terms 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 prevent reservations 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 extent of national sovereignty over the oceans and seabed. Parts II, V, VI, and VII establish the various regions of the oceans, who has sovereignty over each, and to what degree. The following sections explain both how the maritime regions are divided and the sovereign powers that nations may exercise over each region.

Baselines The baseline is the boundary from which a nation may begin measurements to determine the portion of the adjacent oceans or continental shelf over which it may exercise sovereignty. Except in some special cases, the baseline is the low-water line along the coast.[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 of archipelagic nations (nations that consist of a number of small islands such as the Philippines) and can be found in Article 47. Internal Waters Internal waters are those that are contained on the landward side of the baseline.[22] These waters 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 up to 12 nautical miles from the baselines. Within the territorial sea, a nation has exclusive sovereignty over the water, seabed, and airspace.[23] The treaty establishes that all nations have 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 hamper innocent passage of a foreign vessel.[24] UNCLOS adopted the basic concepts of the territorial sea and the right of innocent passage that had been codified in the Convention on the Territorial Sea and the Contiguous Zone, but the new treaty went a step further by establishing 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 the start of the UNCLOS, only twenty-five nations maintained the traditional claim of 3 nautical miles. Sixtysix nations were claiming 12 nautical miles, fifteen nations claimed between 4 and 10 nautical miles, and eight nations were claiming an astounding 200 nautical miles. Smaller nations, including those without large navies or merchant fleets, favored a larger territorial sea in order to protect their coastal waters from infringements by 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 straits used for international navigation under the exclusive sovereignty of other nations. Some of these included the Strait of Gibraltar (the only open access to the Mediterranean), the Strait of Hormuz (the only passage to the oil-producing Persian Gulf and Gulf of Oman nations), and the Strait of Malacca (the main route connecting the Pacific and Indian Oceans).[25] Remembering that the Cold War was still ongoing during the Convention, smaller nations were particularly concerned about the possibility of threats to their national security posed by warships of foreign nations or even the possibility of becoming embroiled in the conflicts of foreign powers. In an attempted compromise, the small nations offered the larger maritime powers the right of innocent passage, however the maritime powers were not satisfied with this offer. The problem, in the view of the great powers, was that restrictions to innocent passage would prohibit covert movements of vessels (such as submarines) 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 a nation, transit passage applies to straits used for international navigation between one part of the high seas to another and allows for "navigation and overflight solely for the purpose of continuous and expeditious transit of [a] strait...."[27] In all other ways aside transit 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 of 24 nautical miles. Within this region, a nation may exercise the control necessary to prevent the infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea, and punish infringement of those laws and 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 more than 200 nautical miles from a nation's baselines.[30] Generally, the rules regarding the High Seas, set forth in Articles 88 to 115, apply to the EEZ.[31] Within its EEZ, a nation may explore at exploit

the natural resources (both living and inanimate) found both in the water and on the seabed, may utilize the natural resources of the area for the production of energy (including wind and wave/current), may establish artificial islands, conduct marine scientific research, pass laws for the preservation and protection of the marine environment, and regulate fishing.[32] One of the primary purposes behind establishing the EEZ was to clarify the rights of individual nations to control the fish harvests off their shores. The 200-mile limit established by UNCLOS is not an arbitrary number. It is derived from the fact that the most lucrative fishing grounds lie within 200 nautical miles from the coast as this is where the richest phytoplankton (the basic food of fish) pastures lie.[33] The creation of the EEZ gave coastal nations jurisdiction of approximately 38 million square 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 all offshore mineral resources. In addition, the EEZs contain almost 99% of the world's fisheries, which allows nations to work to conserve the oceans vital and limited living resources.[34]

Continental Shelf Cross sectional map of a continental shelf. Unlike the other boundaries that have been thus far discussed, the continental shelf is a real, naturally-occurring geological formation. It is a gently sloping undersea plain between the abovewater 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 descends further and marks the beginning of the ocean itself. It is host to most of the world's oceanic plant and animal life and plays a vital role in energy production, from offshore oil and gas reserves to renewable energy resources.[35] When UNCLOS refers to the continental shelf, however, it is using "continental shelf" as a 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 lay claim to a continental shelf that exceeds 200 nautical miles from the baseline by establishing 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 the sovereign right to explore and exploit the non-living natural resources of the continental shelf as well as the living organisms that live on the seabed itself.[38] The water above the portion of the continental shelf that is not contained within the EEZ remains part of the high seas (as does the airspace above that area).[39] Nations wishing to request an extension of sovereignty over an extended portion of their naturally occurring continental shelf 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. A nation 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 without charge. Starting on the sixth year, a nation has to pay 1 percent of the value of the resources produced from the site. The rate of payments increase by 1 percent for each year until the twelfth year and is capped at 7 percent thereafter. Developing nations are exempted from this provision.[41] Revenues generated from these operations are deposited with the International Seabed Authority and equally distributed among national parties to UNCLOS.[42] High Seas

Waters beyond a nation's EEZ are considered to be the high seas.[43]The high seas are still governed the "freedom of the seas" concept, albeit a modified version. Just as with the classical version, no nation my lay claim to any portion of the high seas.[44] Per the terms of 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 of fishing, and freedom of scientific research.[46] Other provisions regarding the high seas include a prohibition on the transport of slaves, piracy, illegal drug trafficking, and the suppression 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 continental shelf of a country. It would be inaccurate to say that the Area is the seabed underneath the high 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 and the resources it contains as "the common heritage of mankind."[49]No nation is allowed to lay claim to any part of the Area or its resources. Regarding the resources, "[a]ll rights in the resources of the Area are vested in mankind as a whole...."[50] As a result, companies that wish to exploit the mineral resources of the Area will have to enter into a profit sharing agreement in which the profits derived from mineral resources captured in the Area will be shared with developing nations.

The archipelagic principle is a fundamental pillar of the Philippine concept of national territory : The guiding principle for resolving the issue about offshore islands is the archipelagic principle, which is enshrined in Art. 1 of the 1987 Constitution and has been one of the fundamental pillars of the Philippine concept of national territory. Since the 1950s, the Philippines has pushed this principle, which led to the so-called "Archipelagic Doctrine" in international law and has become the legal and political basis for considering our 7,107 islands as one political unit. The "Archipelagic Doctrine" is one of our most important contributions to the international legal system; without it, the widely scattered islands of our archipelago will be separated by international waters, and the Filipino nation will be deprived of the large tracts of marine resources between the islands that it has claimed since its inception. Central to the archipelagic principle is the concept of equality between landmasses, where each island regardless of size is treated in the same manner as all others. Without such equality of treatment, small outlying islands like Tawi-Tawi and Batanes may be considered as mere territories not entitled to provincial or municipal status; at most they may be mere attachments to some province located in one of the 10 major landmasses of the country. Equally important to the archipelagic principle is the concept of unity between land and water, where the water forms the link between the disparate islands. The proper application of the doctrine demands that, as a national policy, we should treat all of our islands in the same manner, not allowing some of them to be insignificant as if they were mere parts of the water, and that we should not allow the waters to create highly fragmented political units.

Arial Domains Article 1, Sovereignty : The contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory.This refers to the air space above the land and waters of the State. The Convention on International Civil Aviation, also known as the Chicago Convention, established the International Civil Aviation Organization (ICAO), a specialized agency of the United Nations charged with coordinating and regulating international air travel. The Convention establishes rules of airspace, aircraft registration and safety, and details the rights of the signatories in relation to air travel. The Convention also exempts air fuels from tax. The document was signed on December 7, 1944 in Chicago, Illinois, by 52 signatory states. The Convention defines the supreme authority of each state to its airspace. Relevant provisions of the convention relates to such recognition and the elements of a states territory Territorial Waters Out to 12 nautical miles from the baseline, the coastal state is free to set laws, regulate use, and use any resource. Vessels were given the right of "innocent passage" through any territorial waters, with strategic straits allowing the passage of military craft as "transit passage", in that naval vessels are allowed to maintain postures that would be illegal in territorial waters. "Innocent passage" is defined by the convention as passing through waters in an expeditious and continuous manner, which is not prejudicial to the peace, good order or the security of the coastal state. Fishing, polluting, weapons practice, and spying are not innocent", and submarines and other underwater vehicles are required to navigate on the surface and to show their flag. Nations can also temporarily suspend innocent passage in specific areas of their territorial seas, if doing so is essential for the protection of its security.Archipelagic watersThe convention set the definition of Archipelagic States in Part IV, which also defines how the state can draw its territorial borders. A baseline is drawn between the outermost points of the outermost islands, subject to these points being sufficiently close to one another. All waters inside this baseline will be Archipelagic Waters and included as part of the state's internal waters.

Internal waters Covers all water and waterways on the landward side of the baseline. The coastal state is free to set laws, regulate use, and use any resource. Foreign vessels have no right of passage within internal waters. THE BASELINE METHODS Baselines are reference lines drawn by a coastal or archipelagic State using different methods as discussed below. They are used to measure the breadth of the territorial sea (12nm), contiguous zone (24 nm), EEZ (200nm) and continental shelf (up to 350nm). Also, the waters enclosed by the baselines are called archipelagic waters over which an archipelagic State exercises sovereignty.According to the UNCLOS, there are three methods that can be employed in determining a States baselines, namely: 1. Normal Baseline, according to Art. 5, is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State.

2. Straight Baseline, according to Art. 7, can be employed if ever the coastlines are indented and cut into or there is a fringe of islands along the coast in its immediate vicinity.

3. Archipelagic Baseline, according to Art. 47, is a method of joining the outermost points of the outermost islands and drying reefs of an archipelago provided that within such baselines are included the main island and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1:1 and 9:1.

Of the three methods, the archipelagic baselines method is most applicable and advantageous to an archipelago such as ours. Otherwise, to use either the Normal or Straight baseline methods, which are primarily designed for coastal States, would effectively waive our status as an archipelagic State and lose much of the archipelagic waters as defined above.