UNCLOS I
THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA
The United Nations Convention on the Law of the Sea was opened for
signature at Montego Bay, Jamaica, on 10 December 1982. It entered into force on
14 November 1994 and is presently binding for 154 States, as well as the European
Community (as of 24 July 2008). It is considered the “constitution of the oceans” and
represents the result of an unprecedented, and so far never replicated, effort at
codification and progressive development of international law. The more than 400
articles of the text and of the nine annexes that are an integral part of it are the most
extensive and detailed product of codification activity States have ever attempted
and successfully concluded under the aegis of the United Nations. (Treves, Julio;
Judge of the International Tribunal for the Law of the Sea; Professor at the
University of Milan, Italy http://untreaty.un.org/cod/avl/ha/uncls/uncls.html)
Brief Historical background
The UNCLOS replaces the older and weaker 'freedom of the seas' concept,
dating from the 17th century: national rights were limited to a specified belt of water
extending from a nation's coastlines, usually three nautical miles, according to the
'cannon shot' rule developed by the Dutch jurist Cornelius van Bynkershoek. All
waters beyond national boundaries were considered international waters — free to
all nations, but belonging to none of them (the mare liberum principle promulgated
by Grotius).
In the early 20th century, some nations expressed their desire to extend
national claims: to include mineral resources, to protect fish stocks, and to provide
the means to enforce pollution controls. (The League of Nations called a 1930
conference at The Hague, but no agreements resulted.) Using the customary
international law principle of a nation's right to protect its natural resources,
President Truman in 1945 extended United States control to all the natural
resources of its continental shelf. Other nations were quick to follow suit. Between
1946 and 1950, Argentina, Chile, Peru, and Ecuador extended their rights to a
distance of 200 nautical miles to cover their Humboldt Current fishing grounds.
Other nations extended their territorial seas to 12 nautical miles.
By 1967, only 25 nations still used the old three-mile limit, while 66 nations
had set a 12-mile territorial limit and eight had set a 200-mile limit. As of May 28,
2008, only two countries still use the three-mile limit: Jordan and Palau.[3] That limit
is also used in certain Australian islands, an area of Belize, some Japanese straits,
certain areas of Papua New Guinea, and a few British Overseas Territories, such as
Anguilla.
In 1956, the United Nations held its first Conference on the Law of the Sea
(UNCLOS I) at Geneva, Switzerland. UNCLOS I resulted in four treaties concluded
in 1958:
Convention on the Territorial Sea and Contiguous Zone, entry into force: 10
September 1964
Convention on the Continental Shelf, entry into force: 10 June 1964
Convention on the High Seas, entry into force: 30 September 1962
Convention on Fishing and Conservation of Living Resources of the High
Seas, entry into force: 20 March 1966
Although UNCLOS I was considered a success, it left open the important
issue of breadth of territorial waters.
UNCLOS II
In 1960, the United Nations held the second Conference on the Law of the
Sea (“UNCLOS II”); however, the six-week Geneva conference did not result in any
new agreements. Generally speaking, developing nations and third world countries
participated only as clients, allies, or dependents of United States or the Soviet
Union, with no significant voice of their own.
UNCLOS III
The issue of varying claims of territorial waters was raised in the UN in 1967
by Arvid Pardo, of Malta, and in 1973 the Third United Nations Conference on the
Law of the Sea was convened in New York. In an attempt to reduce the possibility of
groups of nation-states dominating the negotiations, the conference used a
consensus process rather than majority vote. With more than 160 nations
participating, the conference lasted until 1982. The resulting convention came into
force on November 16, 1994, one year after the sixtieth state, Guyana, ratified the
treaty.
The convention introduced a number of provisions. The most significant
issues covered were setting limits, navigation, archipelagic status and transit
regimes, exclusive economic zones (EEZs), continental shelf jurisdiction, deep
seabed mining, the exploitation regime, protection of the marine environment,
scientific research, and settlement of disputes.
Part XI and the 1994 Agreement
Part XI of the Convention provides for a regime relating to minerals on the
seabed outside any state's territorial waters or EEZ (Exclusive Economic Zones). It
establishes an International Seabed Authority (ISA) to authorize seabed exploration
and mining and collect and distribute the seabed mining royalty.
 The United States objected to the provisions of Part XI of the Convention on
several grounds, arguing that the treaty was unfavorable to American economic and
security interests. Due to Part XI, the United States refused to ratify the UNCLOS,
although it expressed agreement with the remaining provisions of the Convention.
From 1983 to 1990, the United States accepted all but Part XI as customary
international law, while attempting to establish an alternative regime for exploitation
of the minerals of the deep seabed.
In 1990, consultations were begun between signatories and non-signatories
(including the United States) over the possibility of modifying the Convention to
allow the industrialized countries to join the Convention. The resulting 1994
Agreement on Implementation was adopted as a binding international Convention. It
mandated that key articles, including those on limitation of seabed production and
mandatory technology transfer, would not be applied, that the United States, if it
became a member, would be guaranteed a seat on the Council of the International
Seabed Authority, and finally, that voting would be done in groups, with each group
able to block decisions on substantive matters. The 1994 Agreement also
established a Finance Committee that would originate the financial decisions of the
Authority, to which the largest donors would automatically be members and in which
decisions would be made by consensus. (United Nations Convention on the Law of
the Sea;
http://en.wikipedia.org/wiki/United_Nations_Convention_on_the_Law_of_the_Sea)
IMPORTANT PROVISIONS & CONCEPTS
The importance of the seas flows from 2 factors:
1. They are a medium of communication
2. They contain vast natural resources
Grotius elaborated the Doctrine of the Open Seas which considers the high
seas as res communis or accessible to all. The doctrine however
recognized as permissible the delineation of a maritime belt by littoral states
as an indivisible part of its domain. This belt is the territorial sea.
The basic statement of the extent of a state’s sovereignty over
waters is set down in Article 2 of the 1982 Law of the Sea
Article 2
Legal status of the territorial sea, of the air space
over the territorial sea and of its bed and subsoil
1. The sovereignty of a coastal State extends, beyond its land territory
and internal waters and, in the case of an archipelagic State, its archipelagic
waters, to an adjacent belt of sea, described as the territorial sea.
2. This sovereignty extends to the air space over the territorial sea as
well as to its bed and subsoil.
3. The sovereignty over the territorial sea is exercised subject to this
Convention and to other rules of international law.
Territorial Sea
It is a belt of sea outwards from the baseline and up to 12 nautical miles
beyond. Where, however, the application of the 12-mile rule to neighboring littoral
states would result in overlapping, the rule now established is that the dividing line is
a median equidistant from opposite baselines. This rule does not apply where
historic title or other special circumstances require different measurements.
Baselines: Normal or Straight
The Baseline is the low-water line along the coast as marked on large scale
charts officially recognized by the coastal state. The width of the territorial sea is
measured from the baseline.
2 ways of drawing the baseline:
1. Normal- one drawn following the low-water line along the coast as marked
on large-scale charts officially recognized by the coastal State. This line
follows curvatures of the coast.
There is no fixed norm for determining the “low-water mark” but in the
Anglo-Norwegian Fisheries Case suggested that for the purpose of measuring
the breadth of the territorial sea, it is the low-water mark which has been
generally adopted in the practice of States.
2. Straight- Straight lines are drawn connecting selected points on the coast
without appreciable departure from the general shape of the coast.
Archipelagic states use this method. In the Philippines R.A. 3046 as
amended by R.A. 5446 or the Philippine Baselines Law have drawn straight
baselines around the Philippines.
The decision in the Fisheries Case upholding the Straight Baseline
Method eventually became part of the convention and can be found in Article 7
paragraph 1 of the law of the sea. Article 47 also allows the use of the same
method for archipelagic States with certain limitations as follows:
1. An archipelagic State may draw straight archipelagic baselines
joining the outermost points of the outermost islands and drying reefs of the
archipelago provided that within such baselines are included the main islands
and an area in which the ratio of the area of the water to the area of the land,
including atolls, is between 1 to 1 and 9 to 1.
2. The length of such baselines shall not exceed 100 nautical miles,
except that up to 3 per cent of the total number of baselines enclosing any
archipelago may exceed that length, up to a maximum length of 125 nautical
miles.
3. The drawing of such baselines shall not depart to any appreciable
extent from the general configuration of the archipelago.
4. Such baselines shall not be drawn to and from low-tide elevations,
unless lighthouses or similar installations which are permanently above sea
level have been built on them or where a low-tide elevation is situated wholly
 or partly at a distance not exceeding the breadth of the territorial sea from the
nearest island.
5. The system of such baselines shall not be applied by an archipelagic
State in such a manner as to cut off from the high seas or the exclusive
economic zone the territorial sea of another State.
6. If a part of the archipelagic waters of an archipelagic State lies
between two parts of an immediately adjacent neighbouring State, existing
rights and all other legitimate interests which the latter State has traditionally
exercised in such waters and all rights stipulated by agreement between those
States shall continue and be respected.
7. For the purpose of computing the ratio of water to land under
paragraph l, land areas may include waters lying within the fringing reefs of
islands and atolls, including that part of a steep-sided oceanic plateau which
is enclosed or nearly enclosed by a chain of limestone islands and drying
reefs lying on the perimeter of the plateau.
8. The baselines drawn in accordance with this article shall be shown
on charts of a scale or scales adequate for ascertaining their position.
Alternatively, lists of geographical coordinates of points, specifying the
geodetic datum, may be substituted.
9. The archipelagic State shall give due publicity to such charts or lists
of geographical coordinates and shall deposit a copy of each such chart or list
with the Secretary-General of the United Nations.
Sovereignty over Territorial Sea
The sovereignty of the coastal state over its territorial sea and airspace
above it as well as the seabed under is the same as its sovereignty over its land
territory. However the sea is subject to the Right of Innocent Passage by other
states. This applies to ships and aircraft, submarines, moreover, must surface.
Innocent Passage is passage that is not prejudicial to the peace, good
order, or security of the coastal State. Article 19 paragraph 2 enumerates acts that
are not considered innocent passage:
Passage of a foreign ship shall be considered to be prejudicial to the
peace, good order or security of the coastal State if in the territorial sea it
engages in any of the following activities:
(a) any threat or use of force against the sovereignty, territorial
integrity or political independence of the coastal State, or in any
other manner in violation of the principles of international law
embodied in the Charter of the United Nations;
(b) any exercise or practice with weapons of any kind;
(c) any act aimed at collecting information to the prejudice of the
defence or security of the coastal State;
(d) any act of propaganda aimed at affecting the defence or security
of the coastal State;
(e) the launching, landing or taking on board of any aircraft;
(f) the launching, landing or taking on board of any military
device;
(g) the loading or unloading of any commodity, currency or person
contrary to the customs, fiscal, immigration or sanitary laws and
regulations of the coastal State;
(h) any act of wilful and serious pollution contrary to this
Convention;
(i) any fishing activities;
(j) the carrying out of research or survey activities;
(k) any act aimed at interfering with any systems of communication
or any other facilities or installations of the coastal State;
(l) any other activity not having a direct bearing on passage.
Coastal States have the unilateral right to verify the innocent character of
the passage, and it may take the necessary steps to prevent passage that it
determines to be not innocent. The rule on innocent passage is also applicable to
Straits as declared in the Corfu Channel Case, the decision in said case is now
embodied in Article 45 of the convention.
Internal Waters
These are all waters landwards from the baseline of the territory.
Sovereignty over these waters is the same in extent as sovereignty over land and is
not subject to the right of innocent passage. In Saudi Arabia vs. Aramco, it was held
that ports of every State must be open to foreign vessels and can only be closed
when vital interests of the state so requires. But according to the Nicaragua vs. U.S.,
a coastal State may regulate access to its ports.
Archipelagic Waters
Article 8 paragraph 2 of the convention provides:
Where the establishment of a straight baseline in accordance with the
method set forth in article 7 has the effect of enclosing as internal waters
areas which had not previously been considered as such, a right of innocent
passage as provided in this Convention shall exist in those waters.
Article 53 refers to this type of internal water as archipelagic waters and
says that an An archipelagic State may designate sea lanes and air routes
thereabove, suitable for the continuous and expeditious passage of foreign ships
and aircraft through or over its archipelagic waters and the adjacent territorial sea.
This provision was seen as posing a problem for Philippine Law because
Article 1 of the 1973 Philippine Constitution considers all waters connecting the
islands as internal waters. Hence upon its ratification of the convention, it added the
following declarations:
1. The signing of the convention by the Government of the Republic of the
Philippines shall not in any way prejudice the sovereign rights of the
Republic of the Philippines under and arising from its Constitution;
2. The provisions of the convention on archipelagic passage through sea
lanes do not nullify or impair the sovereignty of the Philippines as an
 archipelagic State over the sea lanes and do not deprive it of authority
to enact legislation to protect its sovereignty, independence and
security;
3. The concept of archipelagic waters is similar to the concept of internal
waters under the Constitution of the Philippines, and removes straits
connecting these waters with the economic zone or high sea from the
rights of foreign vessels to transit passage for international navigation.
Bays
The waters of a bay are considered internal waters of a coastal State. The
rule on Bays is found in Article 10 of the Convention:
1. This article relates only to bays the coasts of which belong to a
single State.
2. For the purposes of this Convention, a bay is a well-marked
indentation whose penetration is in such proportion to the width of its mouth
as to contain land-locked waters and constitute more than a mere curvature
of the coast. An indentation shall not, however, be regarded as a bay unless
its area is as large as, or larger than, that of the semi-circle whose diameter is
a line drawn across the mouth of that indentation.
3. For the purpose of measurement, the area of an indentation is that
lying between the low-water mark around the shore of the indentation and a
line joining the low-water mark of its natural entrance points. Where,
because of the presence of islands, an indentation has more than one mouth,
the semi-circle shall be drawn on a line as long as the sum total of the lengths
of the lines across the different mouths. Islands within an indentation shall
be included as if they were part of the water area of the indentation.
4. If the distance between the low-water marks of the natural entrance
points of a bay does not exceed 24 nautical miles, a closing line may be
drawn between these two low-water marks, and the waters enclosed thereby
shall be considered as internal waters.
5. Where the distance between the low-water marks of the natural
entrance points of a bay exceeds 24 nautical miles, a straight baseline of
24 nautical miles shall be drawn within the bay in such a manner as to enclose
the maximum area of water that is possible with a line of that length.
6. The foregoing provisions do not apply to so-called "historic" bays,
or in any case where the system of straight baselines provided for in article 7
is applied.
Historic Bays are those which are treated by the coastal State as internal
waters on the basis of historic rights acknowledged by other states.
Contiguous Zone
This is an area of water not exceeding 24 nautical miles from the baseline. It
thus extends 12 nautical miles from the edge of the territorial sea. The coastal State
exercises authority over that area to the extent necessary to prevent infringement of
its customs, fiscal, immigration or sanitation authority over its territorial waters or
territory and to punish such infringement.
According to the International Law Commission’s Commentary on the Draft,
the power of control given to the littoral state does not change the nature of the
waters. Beyond the territorial sea, the waters are high sea and are not subject to the
sovereignty of the coastal state.
Exclusive Economic Zone or “patrimonial sea”
The doctrine on the exclusive economic zone is a recent development. Prior
to the acceptance of the doctrine, all waters beyond the contiguous zone were
considered as high seas over which no state had control. The doctrine developed
owing to the desire of coastal states for better conservation and management of
coastal fisheries.
The Exclusicve Economic Zone is an area extending not more than 200
nautical miles beyond the baseline. The coastal state has rights over the economic
resources of the sea, seabed and subsoil—but the right does not affect the right of
navigation and overflight of other states.
The provisions regarding the EEZ are both a grant of rights to and an
imposition of obligations on coastal states relative to the exploitation, management
and preservation of the resources found within the zone.
The coastal States have 2 primary obligations:
1. They must ensure through proper conservation and management
measures that the living resources of the EEZ are not subjected to over-
exploitation.
2. They must promote the objective of optimum utilization of the living
resources.
Details on the foregoing matter are found in Articles 55 to 75 of the
convention.
The delimitation of the overlapping exclusive economic zone between
adjacent states is determined by agreement.
The Continental (Archipelagic) Shelf
This refers to:
A. The seabed and subsoil of the submarine areas adjacent to the coastal
state but outside the territorial sea, to a depth of 200 meters or, beyond that
limit, to where the depth allows exploitation;
B. The seabed and subsoil of areas adjacent to islands. The coastal state has
the right to explore and exploit its natural resources, erect installations
needed and a safety zone over its installations with aradius of 500 meters.

The right does not affect the right of navigation of others and does not
extend to non-resource material in the shelf area such as wrecked ship and
their cargoes.
The Deep Seabed: “Common Heritage of Mankind”
These are areas of the seabed and the ocean floor, and their subsoil, which
lie beyond any national jurisdiction. These are the common heritage of mankind and
may not be appropriated by any state. Activities in the area are governed by Articles
135 to 153.
Islands
Article 121
Regime of islands
1. An island is a naturally formed area of land, surrounded by water,
which is above water at high tide.
2. Except as provided for in paragraph 3, the territorial sea, the
contiguous zone, the exclusive economic zone and the continental shelf of an
island are determined in accordance with the provisions of this Convention
applicable to other land territory.
3. Rocks which cannot sustain human habitation or economic life of
their own shall have no exclusive economic zone or continental shelf.
Artificial islands or installations are not islands”in the sense of Article 121. However coastal
States may establish safety zones around artificial islands and prescribe safety measures
around them.
The High Seas
Article 1 of the Geneva Convention on the High Seas defines the high seas
as äll parts of the sea that are not included in the territorial sea or in the internal
waters of a State.
The high seas are subject to six freedoms:
1. Freedom of navigation
2. Freedom of overflight
3. Freedom of fishing
4. Freedom to lay submarine cables and pipelines
5. Freedom to construct artificial islands and structures
6. Freedom of scientific research
The first 4 of the above freedoms were mentioned in the 1958 convention of
the High Seas and the last 2 were added in 1982 and are subject to certain
restrictions.
The flag state has exclusive jurisdiction over its ships on the high seas to
the extent not limited by agreement. By legal fiction, a ship is a floating part of the
flag state. The law of the flag state is applied to it on the pragmatic basis that there
must be some law on ship board that it cannot change at every change of waters
and no experience shows a better rule than that of the state that owns it.
Freedom of overflight belongs to both civilian and military aircraft. Freedom
of fishing also includes the duty to cooperate in taking measures to ensure the
conservation and management of the living resources of the high seas.
Hot Pursuit
Article 111 allows hot pursuit of foreign vessel where there is good reason
to believe that the ship has violated laws or regulations of a coastal state. The
pursuit must commence when the foreign vessel is within the internal, archipelagic,
territorial or contiguous zone of the pursuing state. It may continue into the high
seas if the pursuit has not been interrupted. If the foreign ship is in the contiguous
zone, it may be pursued only for violations of the rights of the coastal state in the
contiguous zone.
The right of hot pursuit shall also apply to violations of applicable laws and
regulations of the coastal state in the EEZ or the continental shelf including the
safety zone of the shelf.
Hot pursuit must stop as soon as the ship pursued enters territorial waters
of its own State or of a third State.
Hot pursuit may be carried out only by warships or military aircraft, or any
other ship or aircraft properly marked for that purpose.
Settlement of Disputes
Peaceful settlement of disputes is compulsory. Under Part XV of the
convention, States are required to settle peacefully disputes concerning the
Convention. If a bilateral settlement fails, Article 285 requires submission of the
dispute for compulsory settlement in one of the tribunals clothed with jurisdiction.
The alternatives are the International Tribunal for the Law of the Sea, the ICJ, or an
arbitral tribunal constituted under the convention.
(S.J. Bernas; Public International Law)