UN At 75: How the Law of The Sea Has Shaped A More Fair and Equal Society

UN At 75: How the Law of The Sea Has Shaped A More Fair and Equal Society

Photo: The International Seabed Authority.28 September 2020

Viewpoint by Michael W. Lodge

Secretary-General of the International Seabed Authority (ISA) based in Jamaica.

KINGSTON (IDN) – In his address to the United Nations Economic and Social Council in July 2020, reflecting on what kind of UN we need at the 75th anniversary, the Secretary-General of the UN called for strengthened and renewed multilateralism, geared towards the overarching goals of peace and security, human rights, and sustainable development.

One of the greatest and most enduring successes of the UN is the establishment of the legal regime for the ocean that is reflected in the 1982 UN Convention on the Law of the Sea (UNCLOS), which has rightly been described as the constitution for the oceans. As we celebrate the 75th anniversary of the UN this week, it is worth reflecting on the contribution of the Convention to the Secretary-General’s vision of a more fair and equal society.

< Mr Michael W. Lodge

The Third UN Conference on the Law of the Sea, which lasted from 1973 to 1982, was the largest and most complex multilateral conference convened up to that time. It took place against a background of uncertainty in the law of the sea created by a proliferation of unilateral claims and the failure of two previous conferences in 1958 and 1960. Some of these claims resulted in violence and international conflicts over access and rights of passage, such as the ‘cod war’ between UK and Norway.

Rapid decolonization and the consequent emergence of some 100 new States challenged the traditional maritime order reflected in the doctrine of the freedom of the seas, but which effectively meant that the oceans were claimed for the exclusive use of a small number of maritime powers.  At the same time, rapid advances in science and technology increased our understanding of the vulnerability of the ocean to over-exploitation and the impacts of pollution.

The 1982 Convention established certainty in the law of the sea and brought peace and order to the oceans. It provides for an equitable relationship among States in their use of the ocean and has been a major contribution to international peace and security. Although the Convention is multi-faceted, covering every aspect of humanity’s use of the oceans, four elements stand out.

First, the Convention resolved the vexed question of the extent of the maritime jurisdiction of States.  After 400 years during which naval power was the ultimate arbiter of right, agreement was reached on a 12-mile territorial sea, a 200-mile exclusive economic zone, the definition of the continental shelf and a system for resolving disputes over overlapping claims. Essential rights of passage through straits used for international navigation were preserved for all States and landlocked countries were assured of perpetual rights of access to the sea. Since more than 90% of goods are carried by sea, this has made a major contribution to the development of international trade and commerce.

Second, and often overlooked, is the fact that the Convention is one of the most important environmental treaties ever adopted. In addition to an entire chapter focused on protection of the marine environment, it is the first treaty to include a definition of pollution that also applies to anthropogenic CO₂ emissions, regardless of their source. Furthermore, the provisions of the Convention relating to the marine environment are mandatory, unqualified and without exception, with a marked absence of phrases we have become accustomed to in more recent years such as ‘in accordance with capabilities’, ‘as appropriate’ and ‘as far as practicable’.

Third, and obviously most dear to my heart, the Convention established an entirely novel legal regime for the largest untapped mineral resources on the planet, designating these resources as the ‘common heritage of mankind’, to be managed by an international agency – the International Seabed Authority (ISA) and used sustainably for the benefit of all humanity. Access to these resources is assured to both developed and developing States, rich and poor, large, and small. No other resource on the planet is managed in this way and we have struggled so far to apply similar ideals to extra-terrestrial resources.

Fourth, the Convention has endured. Adopted when the UN was only 37 years old, the Convention has gone from strength to strength and now has 168 States Parties, including the majority of the major maritime powers. Maritime disputes have been resolved peacefully in accordance with the Convention, supported by the International Court of Justice and the International Tribunal for the Law of the Sea, through a comprehensive system for dispute settlement that goes beyond that contained in any other treaty.

The Convention has shown that it is adaptable to changing circumstances and new challenges with the adoption of two implementing agreements in 1994 and 1995, on deep seabed mining and international fisheries, respectively. What is particularly significant is that these agreements develop the provisions of the Convention in the light of new scientific knowledge and growing environmental concerns without in any way undermining the underlying package of rights and jurisdictions agreed in 1982.

The Law of the Sea Convention represents the triumph of international law and equity over ideology. Sadly, that triumph remains incomplete and even under threat. It is incomplete because we have not yet achieved universal participation in the Convention. A number of countries remain outside the Convention, including the United States. It is under threat because of the growing and multiple inequalities noted by the Secretary-General. When it comes to the ocean, we see this inequality reflected, for example, in the gap between the incredible advances that have taken place in marine science and technology and the lack of capacity of most developing countries to benefit from that science and technology. We see billionaires building advanced ships to pursue their own private research interests while developing countries are unable to even survey their own waters, let alone participate effectively in international scientific research.

The 75th anniversary of the United Nations presents an inspirational moment for the international community to reaffirm its commitment to the UN Convention on the Law of the Sea and ensure that its provisions are implemented on the basis of equity and for the benefit of all humanity. [IDN-InDepthNews – 22 September 2020].

Photos (top and in text): International Seabed Authority.

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