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.[1] 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.[2] 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
Transcript
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.[1]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.[2]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.[3] 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.[4]
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 long-standing 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, andPeru 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.
Diagram of the various regions of the ocean over which a State may exercise sovereignty.
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 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
A state's territorial sea extends up to 12 nautical miles (22.2 km; 13.8 mi) from its baseline. If this would overlap with another state's territorial sea, the border is taken as the median point between the states' baselines, unless the states in question agree otherwise. A state can also choose to claim a smaller territorial sea.
Conflicts still occur whenever a coastal nation claims an entire gulf as its territorial waters while other nations only recognize the more restrictive definitions of the UN convention. Two recent conflicts occurred in the Gulf of Sidra where Libya has claimed the entire gulf as its territorial waters and the U.S. has twice enforced freedom of navigation rights, in the 1981 and 1989 Gulf of Sidra incidents.
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. Sixty-six 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]
By means of a formal proclamation made public to the international community, a coastal state may establish a zone contiguous to the territorial sea and extending a maximum of twenty-four nautical miles from the baseline.1 Consequently, the breadth of the contiguous zone itself depends on the distance proclaimed and on the breadth of the territorial sea. If the territorial sea of the coastal state has the maximum breadth of twelve nautical miles2, then the contiguous zone can have a maximum breadth of only twelve nautical miles.
The contiguous zone enjoys independent legal status only as long as the coastal state has not proclaimed an exclusive economic zone3 exceeding the outer limits of the contiguous zone. If an exclusive economic zone is established, it begins beyond and adjacent to the territorial sea 4, with the resultant effect that the contiguous zone becomes a part of the exclusive economic zone, and all provisions which apply to the latter also apply completely and fully (as there are no exceptions) in the contiguous zone. The principle of freedom of navigation applies in this zone as
well as elsewhere5 outside the territorial sea, but other states are to have due regard for the rights of the coastal state in the exclusive economic zone and to comply with its laws and regulations6.
The rights derived from this provision are of two types: “prevention”7 and "extended power”8. Rights of “prevention” mean that the coastal state exercises police force limited to "control" necessary to prevent infringements of customs, fiscal, immigration, or sanitary laws in the territorial sea or territory of the coastal state, including boarding and searching and even prohibiting the foreign vessel from entering the territorial sea. If there is no such infringement, the coastal state has no further rights. "Extended power" to apply national criminal law goes into effect if there has been an infringement of the laws listed above within the territory or territorial sea of the coastal state. In many instances of such infringements, coastal states would also be able to exercise the right of hot pursuit.9 There seems to be hardly any need for the concept of a contiguous zone, particularly now that the territorial sea has been extended from three to twelve nautical miles.
Finally, it is worthy of mention that the Convention unexpectedly and rather curiously grants' special status to the contiguous zone in one other area: in order to control traffic in historical and archaeological objects, the coastal state may presume that the removal of any such objects from the contiguous zone without the state's approval would violate the laws mentioned in Article 33, and the state may act accordingly.10 The law of salvage and other international rules and agreements remain unaffected11.
Hot pursuitThe international law principle of hot pursuit is analogous to the common law principle, but was probably conceived independently.[1]:92 It began to coalesce into a general custom of international relations during the early years of the 20th century, although the general principle had been advanced before in national legislation such as the British Hovering Acts. The participating states at theLeague of Nations Codification Conference of 1930 broadly agreed on the validity of the right of hot pursuit, but the proposed convention on territorial waters in which it was included was never ratified. It was finally codified as Article 23 of the Geneva Convention on the High Seas in 1958.[4]:39–40
The Geneva Convention on the High Seas was eventually folded into the United Nations Convention on the Law of the Sea. Article 111 of that treaty grants a coastal state the right to pursue and arrest ships escaping to international waters, as long as:[5]
1. The pursuers are competent authorities of the state;2. They have good reason to believe that the pursued ship has violated the state's laws or
regulations;3. The pursuit begins while the pursuing ship is in the State's internal waters or territorial
waters; and4. The pursuit is continuous.
If the foreign ship is within a contiguous zone, the Exclusive Economic Zone (EEZ), the Continental Shelf, and the Safety Zones in the EEZ or the Continental Shelf then the pursuit may only be undertaken if there has been a violation of the rules and regulations (customs, fiscal, immigration or sanitary laws and regulations of the coastal state) as applicable in the respective regimes (areas, zones).
The right of hot pursuit ceases as soon as the ship pursued enters the territorial sea of its own State or of a third State.
Where a coastal state, stopping or arresting a foreign ship outside the territorial sea on the basis of its right of hot pursuit, fails to justify the exercise, it shall be liable to compensate the ship for any loss or damage cause to it due to the exercise of this right.
This right is particularly relevant to fisheries management, maritime pollution laws, and the seaborne illegal drug trade.[5]
In addition, some have proposed translating the maritime right of hot pursuit into a comparable right to pursue criminals over land borders. Although it does not form a settled tenet of international law, the principle has been invoked by the United States regarding Taliban militants crossing into Pakistan, by Turkey regarding attacks on Kurdistan Workers Party bases in northern Iraq, and by Colombia regarding a raid on a Revolutionary Armed Forces of Colombia camp in Ecuadorean territory which led to the 2008 Andean diplomatic crisis.[6]
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 above-water 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
Map illustrating the high seas. All areas in blue are considered part of the high seas and are not subject to national appropriation.
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 AreaThe "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.
Agencies Created by UNCLOS
In order to administer UNCLOS, the treaty created four bodies to handle specific issues. The following sections discuss the mission of each body and its founding authority.
Commission on the Limits of the Continental Shelf
The Commission on the Limits of the Continental Shelf was created to implement Article 76 of the treaty, which is the article which allows for a nation to extend sovereignty over a portion of the continental shelf beyond the limits of the EEZ.[51] The Commission is comprised of 21 members who are specialists in the fields of geology, geophysics, or hydrography and are elected by the Nations Parties to the Convention. Members of the Commission are charged with
evaluating data submitted by coastal nation requesting an extension of sovereignty over an extended portion of their naturally occurring continental shelf.[52] The Commission was established and derives its authority from Annex II of the Convention.International Seabed Authority
(Logo for the International Seabed Authority, 'the Authority')
The International Seabed Authority is the organization that is responsible for the governance of the Area.[53] Article 156 of the Convention mandates the creation of the Seabed Authority, which is commonly referred to as "the Authority" throughout most of the treaty.[54] All nations that have agreed to be bound by UNCLOS are automatically members of the Authority.[55]The Authority is comprised of three bodies: the Assembly, the Council, and the Secretariat.[56]
The Assembly
The Assembly acts as a legislative organ in which each member nation has one representative.[57] Of the many powers and responsibilities entrusted to the Assembly, one of the most important is the power to decide how revenues derived from deep seabed mining will be distributed. Other powers include the power to set policy regarding activities in the Area and oversight of its management.[58]
The Council
The Council is a body comprised of 36 persons who represent various members of the Authority itself (the nations bound by the treaty). Members of the Council are elected by the Assembly and serve for a term of four years.[59] The Council acts as the executive branch of the Authority and
has the power of establishing the specific policies to be pursued by the Authority.[60] Other powers of the Council include establishing subsidiary agencies (as needed) to carry out the functions of the Council, approve or reject work plans related to the Area, oversee the collection of payments made to the Authority, and institute proceedings against a member nation in the Seabed Disputes Chamber (see International Tribunal for the Law of the Sea below).[61]Within the Council there are two Commissions: the Economic Planning Commission and the Legal and Technical Commission. Each Commission is comprised of members elected by the Council from a list of candidates nominated by the nations that are bound by UNCLOS. Members of either Commission serve for a term of five years and must have no personal financial connections related to exploration or exploitation of resources within the Area.[62]Members of the Economic Planning Commission are required to have qualifications in the areas of mining, management of mineral resources, international trade, or international economics and it is required that at least two members of the Commission are from developing nations whose mineral exports be the same as those being mined from the seabed.[63] The primary function of the Economic Planning Commission is to expound upon the relationship between the minerals being mined, the effect mining has on global prices for the mineral in question, and the effect changes in price may have on developing nations.[64]Members of the Legal and Technical Commission are required to have qualifications in the areas of exploration, exploitation, and processing of mineral resources, oceanology, protection of the marine environment, or either economic or legal matters relating to the ocean mining industry.[65] It is the responsibility of the Commission to review written plans for work activities to be conducted in the Area, prepare assessments of the environmental implications of activities in the Area, make recommendations to the Council regarding environmental protection of the Area, and to calculate the production ceiling and issue production authorization on behalf of the Authority.[66]
The Secretariat
The Secretariat of the Authority is comprised of the Secretary-General and his or her staff. The Secretary General is elected for a term of four years. Nominations for Secretary-General are made by the Council and voted on by the Assembly. The Secretary-General serves as the chief administrative officer of the Authority and is required to make an annual report to the Assembly on the work of the Authority.[67 ] The Enterprise
Article 170 calls for the formation of an agency called "the Enterprise." The purpose of the Enterprise is to coordinate the exploration and exploitation of resources in the area. Annex IV of
the treaty details the composition and governance of the Enterprise, however, since deep seabed mining has yet to start, the Enterprise has never been called into action.
International Tribunal for the Law of the Sea
Annex VI of UNCLOS establishes the International Tribunal for the Law of the Sea. The Tribunal is comprised of 21 members, no two of which may be from the same member nation.[68] Members of the Tribunal serve for a period of nine years, after which they are eligible for reelection to the Tribunal.[69] The Tribunal has formed a number of Chambers including the Chamber of Summary Procedure, the Chamber for Fisheries Disputed, the Chamber for Marine Environment Disputes, and the Chamber for Maritime Delimitation Disputes.[70] The Tribunal is also the home of the Seabed Disputes Chamber, which is responsible for adjudicating disputes pursuant to Part XI, Section 5 of UNCLOS, which governs settlements of disputes that arise from deep seabed activities.[71]Environmental Considerations
Although UNCLOS is not an environmental treaty, it frequently addresses environmental concerns. In addition to having an entire section dedicated to the protection and preservation of the marine environment (Part XII), the treaty also contains numerous references to environmental duties and obligations throughout its many articles. The scattered placement of all of the environmental references makes it difficult at times to put together a comprehensive understanding of the duties of member nations and the powers they are granted to enforce the various provisions.
Section 1 of Part XII of UNCLOS sets the tone for a number of the environmental provisions laid out in the treaty. Part XII opens with Article 192: "States have an obligation to protect and preserve the marine environment." This is immediately followed by Article 193: "States have the sovereign right to exploit their natural resources pursuant to their environmental policies," [emphasis added]. Nations are then subsequently charged with creating national law to address various pollution issues and are supposed to employ "the best practicable means at their disposal and in accordance with their capabilities."[72] Article 204 requires states to observe and evaluate the risks posed by pollution to the marine environment. In particular, nations are required to monitor the effects of any activities that they permit or actually engage in.[73]The following sections examine UNCLOS on various topical issues related to the environment in an attempt to create a comprehensive narrative.
Article 195 requires nations to "prevent, reduce and control pollution in the marine environment." Article 195 also prohibits nations from transferring pollution to another nation, either directly or indirectly, or from turning one type of pollution into another. The prohibition on changing one pollutant into another may have impacts on future carbon mitigation schemes such as water-column carbon sequestration or sub-seabed sequestration. For more information, see Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (1972) and the 1996 Protocol.
Part XII of UNCLOS also encourages nations to participate in regional agreements related to the environment and establishes duties of nations to their regional counterparts (see Articles 197-201). Some of the duties that nations owe to other regional nations include the duty to notify of imminent danger to the marine environment from pollution or actual damage from pollution.[74] Nations are encouraged to work together to form regional plans for the preservation of the marine environment as well as to develop contingency plans for responding to pollution incidents and coordinating with one another in data-sharing on regional marine pollution and establishing scientific criteria for the promulgation of regulations regarding marine pollution.[75]
Dumping at Sea
Dumping is defined in Article 1 as "any deliberate disposal of wastes or other matter from vessels, aircraft, platforms or other man-made structures at sea" or the disposal of the vessels, aircraft, platforms, or structure themselves at sea.[76] UNCLOS makes an exemption for the disposal of wastes that are incidental to the normal operations of vessels, aircraft, etc.[77]Article 210 specifically addresses the issue of dumping and requires nations to enact their own legislation on the issue. Paragraph 6 requires that national laws and regulations be at least as effective as global rules and standards. These global rules and standards are articulated in the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter , which was concluded in London in 1972, the year prior to the start of UNCLOS III.[78]Coastal nations are recognized as the only authority that can approve any dumping activities within its territorial sea, its EEZ, or on its continental shelf. Nations are given the exclusive authority to authorize or deny such activities. Nations who authorize dumping activities are required to give consideration as to how other nations may be adversely affected by dumping activities in areas governed the local nation.[79]There are three ways in which anti-dumping measures can be enforced. The first means of enforcement is by a coastal nation, which has the right to enforce anti-dumping measures within its territorial sea, its EEZ, or its continental shelf. The second means of enforcement is enforcement by Flag Nations, which may always enforce their own laws against any violator
flying its flag regardless of where the offense occurred. The third and final means of enforcing anti-dumping measures is enforcement by a the third party, which would be a nation in which ships take on wastes within its territory. If multiple nations appear to have jurisdiction over an issue of dumping, only one is required to take on the individual case.[80]
References1^ United Nations, The United Nations Convention on the Law of the Sea (A Historical Perspective), available
at http://www.un.org/Depts/los/convention_agreements/convention_historical_perspective.htm(accessed 9 June 2010).
2^ Ibid.
3^ Ibid.
4^ United States Energy Information Administration, Gulf of Mexico Fact Sheet, available at
http://www.eia.doe.gov/oog/special/gulf/gulf_fact_sheet.html (accessed 10 June 2010); United States Energy Information
Administration, Energy Calculators, available at http://www.eia.doe.gov/kids/energy.cfm?
page=about_energy_conversion_calculator-basics (accessed 10 June 2010); United States Energy Information Administration,
Crude Oil Production, available at http://www.eia.doe.gov/neic/infosheets/crudeproduction.html (accessed 10 June 2010). Note:
Due to differences in density in various types of oil, the actual volume of a ton of oil can be different from barrel to barrel. As
such, the numbers provided are best guess estimates based on the information available and should not be viewed as exact.
5^ President Harry S. Truman, President Truman's Proclamations on U.S. Policy Concerning Natural Resources of Sea Bed and
Fisheries on High Seas, available athttp://www.ibiblio.org/pha/policy/1945/450928a.html (accessed 10 June 2010).
6^ Ibid.
7^ United Nations, The United Nations Convention on the Law of the Sea (A Historical Perspective), available
at http://www.un.org/Depts/los/convention_agreements/convention_historical_perspective.htm(accessed 9 June 2010).
