How has the United Nations Convention on the Law of the Sea fared? 

© Tunku Datin Dr. Sofiah Jewa
Advocate & Solicitor
Malaysia

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First presented at the 12^th Commonwealth Law Conference at Kuala Lumpur in September 1999. <![endif]>

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The greatest impact of the Convention on the international agenda thus far has perhaps been its contribution to raising awareness of the fundamental importance of the oceans to the overall well-being of the planet.

            Kofi Annan

                                                                                   Oceans and the Law of the Sea[1]

1.      Introduction

There must have been a feeling of unabashed euphoria amongst the majority of the delegates present in Montego Bay on the beautiful island of Jamaica on that historic December 10, 1982, when after almost 14 years of intense international negotiation, a new legal order for ocean space finally made its mark. “Never in the annals of international law,” remarked Singapore’s Tommy T.B. Koh, President of the Third United Nations Conference on the Law of the Sea and one of the world’s leading authorities on the law of the sea, “had a Convention been signed by 119 countries on the very first day on which it was opened for signature. Not only was the number of signatories a remarkable fact but just as important was the fact that the Convention had been signed by States from every region of the world, from the North and from the South, from the East and from the West, by coastal States as well as land-locked and geographically disadvantaged States.”[2]

Almost seventeen years after that auspicious occasion, we are gathered here today at the 12^th Commonwealth Law Conference in Kuala Lumpur to inter alia consider how that Convention, abbreviated “UNCLOS” in this paper, has fared. To my mind, any attempt to answer the question posed by the topic under discussion necessarily demands some appreciation of not only the modern law of the sea which existed prior to UNCLOS, but also its historical perspective. It is therefore with this factor in mind that I have structured my paper. And coming from Malaysia, I trust I will be forgiven by fellow participants whenever, in the course of my presentation, Malaysia’s involvement in this subject is alluded to. <![endif]>

2.      Historical Perspective

Since time immemorial, the Malays have always regarded the seas bordering their country as natural appurtenances and therefore under its absolute sovereignty. This concept which emphasizes the unity of the country’s land and water is reflected in the Malay term for “native-land” i.e. “tanah-air” which, literally translated, means “land-water”. And so, it was, presumably, no surprise to Sir Stamford Raffles who founded Singapore in 1819, to find, in the course of his many Far Eastern exploits, the existence of Malaysia’s first law of the sea in a codified form which first made its appearance as far back as the year 1276 during the reign of Sultan Muhammed Shah, the first sovereign of Malacca.[3] The full text of the Code as recorded by Raffles appears, for historical interest only, in the annexure to this paper. “When there is a violent storm, and it may be necessary to throw overboard a part of the cargo for the safety of the vessel,” so states a provision of the Code, “a general consultation shall be held with respect to the property in the vessel, and those who have much and those who have little, must agree to throw overboard in proportion”. But whilst a few rules of the Code have, to an extent survived the test of time, the Code was, as the foregoing excerpt on general average shows, more concerned with the law of admiralty which, though a specialised area of the law of the sea, is outside the scope of our discussion in this paper.

At the dawn of international law, most maritime States were somewhat preoccupied with claiming that they had sovereignty and authority over quite extensive parts of the ocean. Venice claimed the Adriatic, England the North Sea, the Channel, and a large part of the Atlantic, Sweden the Baltic, and Denmark-Norway all the Northern seas[4]. The State that claimed the seas often rendered a service to all by policing them against piracy; and in return it claimed proprietary rights over them.[5] Reaction to the above claims came in the sixteenth century when, under the Bulls of Pope Alexander VI of 1493, Spain and Portugal claimed to divide the New World between themselves. Spain claimed the whole Pacific and the Gulf of Mexico; Portugal the Indian Ocean and most of the Atlantic, and both excluded foreigners from these vast areas. The other European countries denied the legal validity of the claims of Spain and Portugal. They argued that it was contrary to natural law and elemental principle of international relations to claim the seas and its waters as the private property of one nation. The cry soon emerged that the use of the sea should be common to all nations. Queen Elizabeth I of England in reply to a protest by the Spanish Ambassador against the passage of Drake’s vessels on the seas reserved for Spain under the Papal Bull, stated:

                        “The use of the sea and air is common to all. Neither can title to the ocean belong to any people or private persons for as much as neither nature nor public use and custom permitteth any possession thereof...”[6]

In 1609, Hugo Grotius, a Dutch lawyer, published Mare Liberum[7] in justification of Dutch resistance to the Portuguese claim, maintaining that the sea was res communes, that is, belonging to all and could not be made the property of any State. The thesis was attacked by John Seldon in Mare Clausum,[8] in which the right of the State to assert its sovereignty over seas adjacent to its territory was placed on the ground of appropriation, dominion, and uncontested use.[9] Grotius, by 1625 in De Jure Belli Ac Pacis, Libri Tres admitted that Mare Liberum might not apply to the adjacent sea, and a successor, Johones Potanus, finally also conceded this.[10] In the course of time a majority of States began to adopt the view that the extent of the State’s sovereignty over its adjacent sea should be limited in practice by some notion of effective control. By the eighteenth century this notion of effective control became synonymous with the range of the cannon from shore batteries. The maximum range of such cannon shots was then three miles. Thus what had originally been a practical test of effective control in terms of cannon fire subsequently became crystallised as the test of effective control over a State’s claim of sovereignty of its territorial sea. (Fortunately there was no attempt, so it seems, to extend a State’s claim when, in the course of time, the force of cannon fire improved in range.) By the nineteenth century, the 3-mile limit was generally recognised, though for some nations and some causes (e.g. smuggling), a 3-league or 12-mile limit was asserted.[11]

  

 

        Figure 1:      A diagrammatic division of Ocean Waters pre-Geneva Conventions on the Law of the Sea 1958 

     

It is to be observed that some local laws and cases tried to clarify the issue of territorial waters and extended fishing rights, that a Convention of 1930 attempted some codification, and that a few writers recognised the need for clarifying freedom of the seas as compared to territorial waters and fishing rights. But generally, prior to World War II, and except for the acceptance by the world at large of the existence of two sea belts namely, the “territorial sea” and the “high seas”, there were no clear government positions on territorial waters, no attention to the “continental shelf”, no authoritative international cases, no uniformity as to fishing claims, and no realisation of the importance of a law of the sea to cover all these issues.

However, during this period, the exploration and exploitation of off-shore oil fields were beginning to generate wide-spread interest and even during the war period the United States under President Roosevelt evidently wasted no effort in preparing measures to be taken by that country vis-à-vis such oil fields as soon as the war ended.

3.         THE TRUMAN PROCLAMATION

President Roosevelt died in April 1945 and was succeeded by President Truman. World War Two ended some four months later and hardly a month following, the United States which throughout its history had assigned such high priority to the preservation of narrow territorial-sea claims made the following astounding proclamation on 28 September 1945[12]:

Proclamation No. 2667

        WHEREAS the Government of the United States of America, aware of the long range world-wide of petroleum and other minerals, holds the view that efforts to discover and make available new supplies of these resources should be encouraged; and

        WHEREAS its competent experts are of the opinion that such resources underlie many parts of the continental shelf off the coasts of the United States of America, and that with modern technological progress their utilisation is already practicable or will become so at an early date; and

        WHEREAS recognised jurisdiction over these resources is required in the interest of their conservation and prudent utilisation when and as development is undertaken; and

        WHEREAS it is the view of the Government of the United States that the exercise of jurisdiction over the natural resources of the subsoil and sea bed of the continental shelf by the contiguous nation is reasonable and just, since the effectiveness of measures to utilise or conserve these resources would be contingent upon cooperation and protection from the shore, since the continental shelf may be regarded as an extension of the land-mass of the coastal nation and thus naturally appurtenant to it, since these resources frequently form a seaward extension of a pool or deposit lying within the territory, and since self-protection compels the coastal nation to keep close watch over activities off its shores which are of the nature necessary for utilisation of these resources;

        NOW, THEREFORE, I, HARRY S. TRUMAN, President of the United States of America, do hereby proclaim the following policy of the United States of America with respect to the natural resources of the subsoil and sea bed of the continental shelf.

        Having concern for the urgency of conserving and prudently utilising its natural resources, the Government of the United States regards the natural resources of the subsoil and sea bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control. In cases where the continental shelf extends to the shores of another State, or is shared with an adjacent State, the boundary shall be determined by the United States and the State concerned in accordance with equitable principles. The character as high seas of the waters above the continental shelf and the right to their free and unimpeded navigation are in no way thus affected ... [emphasis added].

The American claim was followed by similar claims by the United Kingdom as affecting offshore claims to certain overseas possessions including North Borneo (now Sabah) and Sarawak.[13] Saudi Arabia, Iran, Pakistan, India, the Philippines, Australia, Bulgaria, Israel, Egypt and Iraq also followed the American example in claiming jurisdiction over the resources of the sea-bed contiguous to their coasts. The Truman doctrine proclaimed in fact a “special interest” of the United States in offshore oil deposits, a precedent which the Latin Americans were not slow to borrow in support of other special interests. Peru, Ecuador, and Chile (which possess hardly any continental shelf because their coasts drop sharply) claimed exclusive fishing rights out to 200 miles. Later both Argentina and Brazil extended their territorial sea to 200 miles and have tried to obtain both Latin American agreement, and agreement among other developing States to the doctrine that each State may within reason assert its claims in accordance with its “special circumstances”. The proliferation of offshore oil leases being granted in various parts of the world including Indonesia and the Philippines, have led to still another set of “special circumstances”. Those two States have claimed the right to draw their territorial sea from straight baselines connecting the outer reaches of their island archipelagos, thus purporting to acquire territorial rights over vast reaches of the Pacific ocean on the basis of their special and unique geography.[14]

4.      THE GENEVA CONVENTIONS ON THE LAW OF THE SEA        

For eight years after its establishment the United Nations International Law Commission[15] debated and formulated what it considered to be the traditional law of the sea. Amongst the list of topics whose codification was considered was the regime of the territorial sea. In this respect the Commission observed that “international law does not permit an extension of the territorial sea beyond twelve miles”[16]. From February to April 1958 the United Nations held its first Conference on the Law of the Sea at Geneva. This resulted in the adoption of four conventions, - on the high seas, on the territorial sea and the contiguous zone, on the continental shelf, and on fishing and conservation of the living resources of the high seas[17] that were based on drafts prepared by the Commission.

In addition to traditional concepts such as “hot pursuit” and “innocent passage”, two new terms officially saw their appearance in the conventions, namely the “contiguous zone” and the “continental shelf”.

Article 24 of the Geneva Convention on the Territorial Sea and the Contiguous Zone stipulated that in a zone of the high seas contiguous to its territorial sea (called the “contiguous zone”), the coastal State may exercise the control necessary to prevent infringement of its customs, fiscal, immigration or sanitary regulations, or punish infringement of the above regulations committed within its territory or territorial sea. The contiguous zone may not extend beyond twelve miles from the baseline from which the territorial sea is measured.

 

Figure 2:     A diagrammatic division of Ocean Waters pursuant to the Geneva Conventions on the Law of the Sea 1958

The doctrine of the Truman Proclamation of 1945 which claimed for the United States jurisdiction over the resources of the continental shelf, with undefined limits, was incorporated in the 1958 Geneva Convention on the Continental Shelf which, with equally open-ended obscurity, established the jurisdiction of the coastal States in the shelf to a water depth of 200 meters or “beyond that limit to where the depth of the superjacent waters admits of the exploitation of the natural resources”.[18]

The Commission’s recommendation on the limit of the territorial sea , however, could not obtain the two-thirds majority necessary for adoption at the Conference although under Article 24 of the Convention on the Territorial Sea and the Contiguous Zone, the breadth of that sea may not, in any case, exceed twelve miles.

In an attempt to reach agreement on the breadth of the territorial sea and on the question of fishing zones, a second United Nations Conference on the Law of the Sea was held, also at Geneva, two years later but without success. Amongst several proposals which attracted the greatest attention at the Conference was the one put forward by Canada and the United States recommending the adoption of a six-mile territorial sea and a twelve-mile fishery limit. The proposal failed by one vote to secure the necessary two-thirds majority.

 

               

     

Figure 3: A schematic diagram showing the position of the Continental Shelf pursuant to the Geneva Conventions on the Law of the Sea 1958.

Besides the failure earlier stated, there were other reasons for the partial failure of the framework elaborated at Geneva. For instance, the 1958 Conventions gave no precise criteria for establishing the points from which the breadth of the territorial sea can be measured in the event of a deeply indented coastline. Provisions on so-called “mid-ocean” archipelagoes, such as Fiji, Indonesia or the Philippines, were also lacking, and the same is to be said for artificial islands constructed for strategic or other purposes such as, for example, pirate broadcasting. The elastic definition of the outer boundary of the continental shelf as provided under Articles 1 and 2 of the Convention on the Continental Shelf which permitted coastal States to explore and exploit the natural resources of the ocean floor adjacent to its coast up to the 200-metre isobath, “or beyond the limit to where the depth of the superjacent waters admits of the exploitation of the natural resources”, created a curious and rather alarming situation: the continental shelf of each coastal State would increase outward with the “exploitability” of the ocean floor. In 1958, the framers of the Convention had assumed that this clause would remain purely theoretical for many years to come and that the ocean floor would not become exploitable much beyond the 200-metre isobath. This assumption proved to be erroneous, for modern technology certainly made it possible to exploit the seabed and subsoil far beyond this line. Accordingly, the parts of the ocean floor to which coastal States would be able to lay claim owing to the “exploitability test” could grow to an alarming size and in the end, .the entire ocean floor could eventually be divided among coastal States[19]

5.      THE PEACEFUL USES OF THE SEA BED AND ITS RESOURCES

In 1967, Arvid Pardo, the Ambassador of Malta to the United Nations recommended to the United Nations that the resources, other than fisheries, of the high seas beyond the territorial sea and the sea-bed beyond the continental shelf be proclaimed as a “common heritage of mankind” and be subject to the jurisdiction and control of the United Nations, as otherwise militarization of the seabed and exploitation of its resources by highly developed countries to their national advantage and to the disadvantage of poor countries was probable. Soon after, the United Nations General Assembly decided to establish a committee to study all aspects of the peaceful uses of the sea-bed and its resources beyond the limits of national jurisdiction. The Sea-Bed Committee began work in 1969 on a statement of legal principles to govern the uses of the sea-bed and its resources, and the following year the General Assembly unanimously adopted the Committee’s Declaration of Principles, which stated that “the sea-bed and ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction ... as well as the resources of the area are the common heritage of mankind”, to be reserved for peaceful purposes, not subject to national appropriation and not to be exploited except under the international regime to be established. The Assembly decided in 1970 to convene a new Law of the Sea Conference to prepare a single, comprehensive treaty, recognising that the problems of ocean space are interrelated and need to be considered as a whole. The proposed treaty was thus to encompass all aspects of the establishment of the regime and machinery for the international sea-bed area, as well as such issues as the regimes of the high seas, the continental shelf and territorial sea (including the question of limits), fishing rights, preservation of the marine environment, scientific research, and access to the sea by land-locked States. 

6.      THE THIRD UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA

The Third United Nations Conference on the Law of the Sea opened with a brief organisational session in 1973. At its second session in Caracas in 1974 it endorsed the recommendation of the Sea-Bed Committee that it should proceed on a new law of the sea as a “package”, with no one article or section to be approved before all the others were in place. This reflected not only the interdependence of all the issues involved but also the need to reach a delicate balance of compromises if the final document was to prove viable. The first informal text was prepared in 1975 as a basis for negotiation. Over the next seven years, in Conference committees and in special negotiating and working groups, the text underwent several major revisions.

7.     UNITED NATIONS CONVENTION ON THE LAW OF THE SEA 1982

A.              Entry into Force

The final text of UNCLOS was approved by the Conference at the United Nations Headquarters on 30 April 1982, by a vote of 130 in favour to 4 against, with 17 abstentions. When it was opened for signature at Montego Bay, Jamaica, on 10 December 1982, UNCLOS was signed by 117 States (including Malaysia) and two entities[20]. On 16 November 1994, that is one year after the deposit of the sixtieth instrument of ratification, UNCLOS entered into force. As at 26 July 1999, UNCLOS has received 71 more instruments of ratification, accession or succession,  bringing  the  total number of  States parties,  including  one  international organization (the European Community), to 131.[21] Of the 185 Member States of the United Nations, 58 are not parties to UNCLOS[22]. Of the 53 countries of the Commonwealth, Bangladesh, Canada, Kiribati, Lesotho, Malawi, Maldives, Swaziland and Tuvalu have yet to subscribe to UNCLOS.

B.       Some highlights of UNCLOS

UNCLOS comprises 320 articles and nine annexes, governing all aspects of ocean space, such as delimitation, environmental control, marine scientific research, economic and commercial activities, transfer of technology and the settlement of disputes relating to ocean matters.[23] Concepts such as “transit passage”[24] and “the Area”[25] and mechanisms for the establishment of organs such as the “International Sea-Bed Authority”[26], the “Enterprise”[27] and the “International Tribunal for the Law of the Sea”[28] are some of the innovations under UNCLOS.

The breadth of the territorial sea is now fixed to a limit not exceeding 12 nautical miles[29], and whilst coastal States exercise sovereignty over their territorial sea, foreign vessels are allowed “innocent passage” through those waters for purposes of peaceful navigation[30].

Archipelagic States (as defined under UNCLOS)[31]. which did not benefit under the method of straight baselines in measuring the breadth of the territorial sea permitted under limited circumstances under the relevant Geneva Convention[32] can now take advantage of a widened method made applicable to such island nations as Fiji, Indonesia, and the Philippines. Whilst these archipelagic States have sovereignty over a sea area enclosed by straight lines drawn between the outermost points of the outermost islands, all other States enjoy the right of innocent passage through sea lanes designated by them.[33] An archipelagic State shall respect existing agreements with other States and shall recognise traditional fishing rights and other legitimate activities of the immediately adjacent neighbouring States in certain areas (including the maintenance and replacement of submarine cables) falling within archipelagic waters[34].

Straits used for international navigation are under the purview of  UNCLOS[35], but the legal regime in such straits in which passage is regulated in whole or in part by long-standing international conventions in force specifically relating to such straits is not affected[36]. Through these waters, ships and aircraft of all countries are allowed “transit passage”, as long as they proceeded without delay and without threatening the bordering States[37]. During transit passage, foreign ships, including maritime scientific research and hydrographic survey ships, may not carry out any research or survey activities without the prior authorisation of the States bodering straits[38]. States alongside the straits are able to regulate navigation and other aspects of passage.[39]

An Exclusive Economic Zone not extending a 200-nautical-mile distance, may be declared by any coastal State, in which event such State is endowed with sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the sea-bed and of the sea-bed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy 

 

 

Figure 4:   A diagrammatic division of Ocean Waters pursuant to the United Nations Convention on the Law of the Sea 1982

 

 

 

Key:

 

 Figure 5: A schematic diagram showing the position of the Continental Shelf and the Area pursuant to UNCLOS.

The Continental Shelf of a coastal State comprises the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance[46]. Under specified circumstances the continental shelf of a coastal State can extend to a distance of 350 miles[47]. Coastal States have sovereign rights over the continental shelf for the purpose of exploring and exploiting it[48] and these rights do not depend on occupation, effective or notional, or any express proclamation[49]. Coastal States share with the international community part of the revenue derived from exploiting oil and other resources from any part of their shelf beyond 200 miles[50]. The Commission on the Limits of the Continental Shelf shall make recommendations to States on the shelf’s outer boundaries when it extends beyond 200 miles.[51]  

Freedom of the High Seas is exercised under the conditions laid down by UNCLOS and by other rules of international law[52]. All States (coastal or landlocked) enjoy the traditional freedoms of navigation and  overflight on the high seas[53]. The freedoms to lay submarine cables and pipelines, to construct artificial islands and other installations permitted under international law, to fish and to conduct scientific research are, subject to certain conditions, also recognised by UNCLOS. In exercising the freedom of fishing, for example, States are obliged to adopt, or co-operate with other States in adopting, measures to manage and conserve living resources.[54]  

A land-locked State defined under UNCLOS as a State which has no sea-coast[55], has the right of access to and from the sea and enjoys freedom of transit[56] through the territory of a transit State which is defined as a State, with or without a sea-coast, situated between a land-locked State and the sea, through whose territory traffic in transit passes[57]. 

The Area (defined as the sea-bed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction[58]) and its resources are declared by UNCLOS as the common heritage of mankind[59]. All rights in the resources of the Area are vested in mankind as a whole, on whose behalf the Authority (defined as the “International Sea-Bed Authority”[60]) shall act. These resources are not subject to alienation. The minerals recovered from the Area, however, may only be alienated in accordance with the relevant provisions of UNCLOS[61]. “The Enterprise” is the organ of the Authority which shall carry out activities in the Area directly as well as the transporting, processing and marketing of minerals recovered from the Area[62], and shall have its principal place of business at the seat of the Authority.[63] 

Marine pollution prevention and control arising from land-based sources, sea-bed-activities subject to national jurisdiction, activities in the Area, vessels and others are covered quite extensively under UNCLOS. States are bound to prevent and control marine pollution from any source and are liable for damage caused by violation of their international obligations to combat such pollution.[64]  

States are bound to promote the development and transfer of marine technology “on fair and reasonable terms and conditions”, with proper regard for all legitimate interests, including the rights and duties of holders, suppliers and recipients of technology.[65]  

A comprehensive system for the mandatory settlement of dispute  concerning the interpretation or application of UNCLOS has been established.[66]               

Under what is generally known as the “pacta  sunt servanda doctrine” States shall fulfil in good faith the obligations assumed under UNCLOS and are required to exercise the rights, jurisdiction and freedoms thereunder in a manner which would not constitute an abuse of right[67]. In exercising their rights and performing their duties under UNCLOS, States shall refrain from any threat or force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law embodied in the United Nations Charter[68].

 C.       Part XI of UNCLOS 

For many years following the adoption of UNCLOS, the provisions of Part XI, dealing with deep seabed mining, were viewed as an obstacle to the universal acceptance of UNCLOS. That was particularly true in view of the fact that the main opposition to those provisions came from the industrialized countries. Under UNCLOS, all exploring and exploiting activities in the international seabed Area would be under the control of the International Sea-Bed Authority.[69] The Authority would be authorised to conduct its own mining operations through its operating arm, the Enterprise, and also to contract with private and State ventures to give them mining rights in the Area, so they could operate in parallel with the Authority.[70] The first generation of seabed prospectors would have guarantees of production once mining was authorised. Objections to UNCLOS’s provisions dealt mainly with the detailed procedures for production authorization from the deep seabed, cumbersome financial rules of contracts, decision-making in the Council of Seabed Authority and mandatory transfer of technology.[71]  

D.       Agreement Relating to the Implementation of Part XI of UNCLOS 

To overcome these objections, the United Nations Secretary-General undertook informal consultations with all parties lasting nearly four years. As a result, the General Assembly adopted on 28 July 1994 the Agreement Relating to the Implementation of Part XI of UNCLOS.[72] This Agreement which entered into force on 28 July 1996 consists of 10 articles. Its Article 2 deals with the relationship between the Agreement and Part XI of UNCLOS and it provides that the two shall be interpreted and applied together as a single instrument. In the event of an inconsistency between the Agreement and Part XI, however, the provisions of the Agreement shall prevail. Any ratification or accession to UNCLOS made after 28 July 1994 represents consent to be bound by the Agreement as well.[73] Furthermore, no State or entity can establish its consent to be bound by the Agreement unless it has previously established or establishes concurrently its consent to be bound by UNCLOS.[74] States that were parties to UNCLOS prior to the adoption of the Agreement have to establish their consent to be bound by the Agreement separately, by depositing an instrument of ratification or accession.[75] 

Besides dealing with procedural aspects such as signature, entry into force and provisional application, the Agreement also removes the obstacles that had stood in the way of universal acceptance by substituting general provisions for the detailed procedures contained in UNCLOS and by leaving it to the Authority to determine at a future date the exact nature of the rules it will adopt with respect to the authorization of deep seabed mining operations. The Agreement further removes the obligation for mandatory transfer of technology and ensures the representation of certain countries, or group of countries, in the Council while giving those countries certain powers over decision-making.[76] As of 30 September 1998, a total of 91 States parties to the Convention, were, as of that date, bound by the Agreement. [77] 

8.     HOW HAS UNCLOS FARED?

There is no denial that UNCLOS is one of the most important piece of international conventions this side of the 20^th century and that its effects shall undoubtedly be felt well beyond the next millenium. Even before its entry into force, UNCLOS had provided States with an indispensable foundation for their conduct in all aspects of ocean space, its uses and resources. States have consistently, through national and international legislation and through related decision-making, asserted the authority of UNCLOS as the pre-eminent international legal instrument on all matters within its purview.[78] The acceptance of UNCLOS by a great majority of nations and the willingness of these nations to abide by the spirit and intent of its numerous provisions can leave little doubt that since its inception, UNCLOS has fared very well indeed. 

For example, the question of the breadth of the territorial sea, a subject matter which had erstwhile remained unresolved for centuries, has, as a result of UNCLOS, no longer become a sore point amongst most nations. To date only 11 out of 145 coastal States continue to claim a territorial sea extending beyond 12 nautical miles.[79] With only one exception, only one State is claiming a contiguous zone extending beyond 24 miles.[80] As regards the breadth of exclusive economic zones and fishery zones, the practice of States shows a total compliance with the provisions of UNCLOS. Some States combine exclusive economic zones with fisheries zones, while others have one or the other depending on different circumstances. States continue to maintain their old legislation on the continental shelf, which includes the definition contained in the 1958 Geneva Convention. Of the 23 States which do not define the limits of their continental shelf either by reference to the criteria established in UNCLOS or those of the 1958 Continental Shelf Convention, only two are not in conformity with Article 76 of UNCLOS.[81]

The International Seabed Authority, established under UNCLOS, which commenced functioning on 16 November 1994, has made considerable progress in its substantive work, including significant progress in drafting the seabed mining code. The most significant development in the implementation of the deep seabed mining regime, occurred in 1997 when the plans of work for exploration of seven registered pioneer investors were approved by the Authority. Once the seabed mining code is approved by the Authority, the seven pioneer investors would be granted exploration contracts.[82]

The various provisions under UNCLOS which provide for legal frameworks for the combating of crimes at sea have also found universal support from organisations involved in the suppression of illicit drug-trafficking as well as the illegal trafficking in and transporting of migrants, otherwise referred to as the smuggling of aliens. The measures which coastal States can take under UNCLOS to suppress this type of criminal activity include: exercising criminal jurisdiction on board a foreign ship passing through the territorial sea[83]; exercising the right of hot pursuit of a foreign ship which has violated the laws and regulations of the State[84]; exercising the right of visit where a ship is without nationality or conceals its true nationality[85]; exercising control in the contiguous zone necessary to punish infringement of immigration laws and regulations committed within a State's territory or territorial waters[86]; and enforcing the relevant provisions of the Convention in respect of seaworthiness.[87]

The continuing increase in acts of piracy and armed robbery against ships and the increasing violence of the attacks are a matter of great concern to the shipping industry. Articles 100 to 107 of UNCLOS specifically deal with piracy and its repression on the high seas. Other articles of UNCLOS which are relevant to the subject are articles 110 and 111. UNCLOS only addresses the repression of acts of piracy which take place on the high seas and, by virtue of Article 58 paragraph 2, those which take place in the exclusive economic zone. Incidents of piracy and armed robbery in the territorial sea or in port areas are perceived as crimes against the State and are thus subject to its national laws. Article 27 gives the coastal State the right to exercise criminal jurisdiction on board a foreign ship passing through the territorial sea to conduct an investigation or to arrest a person if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea.

The obligation of ships to render assistance at sea is enshrined in both tradition and in international conventions. States are required under UNCLOS[88] to render assistance to any person found at sea in danger of being lost, to rescue persons in distress and, after a collision, to render assistance to the ship, its crew and its passengers. There have been reports of incidents where ships flying the flags of some Member States either threw individuals whom they perceived to be stowaways into shark-infested waters, giving them no chance of survival, or set them adrift on rafts on the high seas and left them to their fate, and where ships in the proximity of such unfortunate individuals have refused to render assistance required of them.[89] Member States have been reminded by the Secretary-General that in such circumstances, they should fully discharge their obligations under articles 94, paragraph 7, and 98 of UNCLOS and in the absence of an internationally agreed procedure for dealing with stowaways, it is important that stowaway incidents be dealt with humanely by all parties involved.[90] Besides the hazards of elements such as the raging storm at sea which seafarers to a certain extent have, through technologies been able to withstand, it is the perils of arrest in a foreign land that modern seafarers continue to face and fear even in this day and age. In this light, it is indeed reassuring to note that UNCLOS provides specific provisions for the prompt release of vessels and crews under Article 73 paragraph 2[91] and Article 292[92].

It is expressly provided under UNCLOS[93] that States parties shall settle any dispute between them concerning the interpretation or application of UNCLOS by peaceful means in accordance with Article 2, paragraph 3, of the Charter of the United Nations and, to this end, shall seek a solution by the means indicated in Article 33 paragraph 1, of the Charter. Article 33 paragraph 1 of the Charter stipulates that the parties to a dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. When parties to a dispute have not reached a settlement by a peaceful means of their own choice, they shall, at the request of one party to the dispute, submit it to the court or tribunal having jurisdiction.[94] States parties to the dispute could choose to submit their dispute to one of the four binding procedures: the International Tribunal for the Law of the Sea; the International Court of Justice; arbitration and special arbitration, which deals with specific types of disputes.[95] Decisions rendered by a court or tribunal shall be final and shall be complied with by all parties.[96] 

However, despite its comprehensive system for the mandatory settlement of disputes, such disputes must concern only the interpretation or application of UNCLOS and pre-UNCLOS maritime disputes between States cannot be subject to its mandatory system of dispute settlement. In fact a number of States, including Malaysia, continue to resort to earlier-existing procedures in the settlement of their international maritime disputes[97].

It is heartening to observe that the mechanism innovated by UNCLOS as an additional mode for the settlement of maritime disputes was resorted to on 13 November 1997, when the International Tribunal for the Law of the Sea received its first application for the prompt release of a vessel and its crew under Article 292 of UNCLOS which was filed by Saint Vincent and the Grenadines against the Republic of Guinea. The dispute concerned the prompt release of the M/V “Saiga”, an oil tanker flying the flag of Saint Vincent and the Grenadines, which was arrested and detained by customs officials of the Republic of Guinea on 28 October 1997. In the application, Saint Vincent and the Grenadines requested that the vessel, its master, its cargo and crew be promptly released in accordance with Article 292 of UNCLOS. It alleged that Guinea had not complied with Article 73, paragraph 2, of UNCLOS and that it had no jurisdiction to arrest the vessel. The Republic of Guinea, on the other hand, contended that the ship was involved in smuggling, which was an offence under the Customs Code of Guinea, and that the detention had taken place after the exercise by the Republic of Guinea of the right of hot pursuit in accordance with Article 111 of UNCLOS.

On 4 December 1997, the Tribunal, after six days of oral proceedings and three weeks after the filing of the application by Saint Vincent and the Grenadines, ordered the Republic of Guinea to promptly release the M/V “Saiga” and its crew from detention.

Article 290 paragraph 1 of UNCLOS inter alia provides that if a dispute has been duly submitted to a court or tribunal which considers that prima facie it has jurisdiction, the court or tribunal may prescribe any provisional measures (interim injunction) which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute pending the final decision. Paragraph 5 of same inter alia stipulates that pending the constitution of an arbitral tribunal to which a dispute is being submitted, any court or tribunal agreed upon by the parties or, failing such agreement within two weeks from the date of the request for provisional measures, the International Tribunal for the Law of the Sea may prescribe, modify or revoke provisional measures if it considers that prima facie the tribunal which is to be constituted would have jurisdiction and that the urgency of the situation so requires.

On 13 January 1998, Saint Vincent and the Grenadines filed with the Tribunal a request under Article 290 paragraph 5 for the prescription of provisional measures pending the constitution of an arbitral tribunal. On 20 February 1998, Saint Vincent and the Grenadines and the Republic of Guinea agreed by an exchange of letters to submit to the Tribunal both the merits and the request for the prescription of provisional measures with regard to the arrest and detention of the M/V “Saiga” by the authorities of Guinea on 28 October 1997[98].

After the proceedings were under way, Guinea released the vessel on 4 March 1998 in compliance with the judgment of the Tribunal of 4 December 1997. The Tribunal therefore no longer had to deal with the release of the vessel. However, the Tribunal on 11 March 1998 issued an order which included, inter alia, that Guinea refrain from carrying out its national court’s decision or any other administrative measure against the vessel, its master and crew as well as its owners or operators.[99]The application on the merits of the case proceeded before the Tribunal on 8 March 1999. On 1 July, 1999, the Tribunal, by eighteen votes to two declared that Guinea violated the rights of Saint Vincent and the Grenadines in arresting the M/V “Saiga” and awarded Saint Vincent and the Grenadines US$2,123,357 with interest as compensation. In doing so it allotted compensation for the detention of the Master and the crew, for gunshot injuries to the First Officer and another, the confiscated cargo and the damage to the vessel. The Tribunal also decided that Guinea had used excessive force when arresting the vessel.[100]

The decision of both Saint Vincent and the Grenadines and the Republic of Guinea to refer their dispute to the newly established Tribunal on the Law of the Sea, coupled with the fact that the matter at hand, heard before the Tribunal’s full bench of 21 multinational jurists[101], was able to reach a conclusion after a 13-day open hearing, is another boost for UNCLOS. The M/V “Saiga” episode, if anything, only goes to confirm the faith of nations in UNCLOS and its system for settlement of disputes[102].

At the beginning of this paper, an excerpt from the report of the Secretary-General to the United Nations General Assembly in the last quarter of 1998 was inserted to highlight in a nutshell Kofi Annan’s view on UNCLOS. Concurring with him that UNCLOS has indeed brought remarkable stability to relations between States with respect to the oceans by contributing to international peace and security, permit me to end this paper with a passage from a material nearer home:

“ As the laws of the sea are established, … let them be observed, in order that whatever is undertaken may be properly regulated. Let these laws be followed towards all countries; … Let them be known and descend to posterity, that men may not act according to their own will and inclination, but that order and regularity may prevail ... Let not what is established be done away, nor these laws be resisted or disobeyed”.[103] 

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ANNEXURE