Reversing the Loss of Environmental Resources: The Ocean's Wealth Is Not Inexhaustible
By Jose Luis Jesus
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Fruit of many years of negotiations involving the participation of the whole community of nations and other interested partners (over 180 delegates), the 1982 Convention managed to canvas a most comprehensive legal regime for the oceans and seas, "dealing with all the law of the sea matters". This regime was the culmination of a great deal of efforts exerted over decades by many nations in their attempt to codify and develop the law of the sea—efforts that started with the 1930 Hague Codification Conference and were carried through three UN Conferences on the law of the sea. Bearing in mind the extensive new law development it embodies, in addition to the codification of existing rules and principles it absorbed, the Convention is an example of swift international development never before experienced. This is more so if account is taken of the fact that until half a century ago the vast ocean space, occupying almost three fourths of our planet, was practically a no-man's land, whose space and resources were under the realms of the freedom of the seas principle. Indeed, the oceans back then had no boundaries and were, in the words of Grotius, "free and open to all", except the territorial sea—a narrow strip claimed by coastal States and generally confined to a width of three nautical miles from the shoreline. As a matter of fact, until the end of the Second World War, States boundaries were essentially land boundaries. The oceans were considered too vast and their resources inexhaustible. The economic and geopolitical interests of States had not boiled to the point of prompting them to extend their boundaries to the vast ocean space and its resources, exception being made of the fifteenth-century treaty arrangement on the partition of the oceans between Spain and Portugal, the maritime Powers of the day, soon overtaken by the Grotian era of freedom of the seas. By the mid-twentieth century, a number of factors prompted some coastal States to change course. Technological developments, with the economic and geopolitical changes that came about, led to a never-ending process of States' unilateral claims over ocean space and resources. As coastal States unilaterally grabbed different parts of the oceans and their resources, conflicts arose among countries over these resources, overlapped claimed areas, and ocean pollution that threaten coastal resorts and all forms of coastal life. As a result, from a no-man's-land situation, different parts of the oceans and their resources were unilaterally brought under the jurisdiction of coastal States. The need for agreed regulations became of paramount importance in order to curb and prevent ocean-related conflicts between States. The set of Conventions adopted at the First UN Conference in Geneva in 1958, though representing a substantial progress in bringing some order to States' claims and ocean-related activities, failed to achieve the goal of stopping the avalanche of unilateral claims, since the newly independent States did not participate in their negotiations. These Conventions were considered by many developing nations as pursuing essentially the interests of the traditional sea Powers and the economic interests of distant-water fishing nations. By the end of the sixties, it became clear that to bring order to the oceans and promote international stability, a renewed negotiating effort was needed at the global level to address all law of the sea issues in a single and comprehensive convention. This was achieved with the adoption of the Law of the Sea Convention, which on account of its ground-setting rules and comprehensiveness has been hailed as a true constitution for the oceans. Recognizing the multiple and interrelated nature of States' interests over the oceans and their resources, and reflecting the concept of package deal and complex trade-offs that took place during its negotiation, the Convention in its 320 articles and 9 annexes attempts to reach a balanced composition of different States' interests. It allocates to coastal States sovereign rights over living and non-living resources—a major claim of developing coastal countries during the negotiations; it recognizes the preferential right of access to fishing resources surplus and maintains still a sizeable area as high seas to meet the special needs of the landlocked and disadvantaged countries; and it preserves some high seas freedoms in the coastal States jurisdictional areas for the benefit of all States, including the freedom of navigation, to meet the concerns of the maritime powers. The 1982 Convention covers a wide range of ocean issues: it establishes, among others, legal regimes applicable to the different maritime areas allocated to coastal States; it solves once and for all the issue of the limits of the territorial sea; it deals with the protection of marine environment, the conservation and management of living resources, the navigational rights, the seabed regime and the marine scientific research; and it sets out a comprehensive settlement dispute system. Though not a perfect achievement, it embodies the best compromise possible on different and complex claims and interests at play at the time of negotiation. This makes it a major accomplishment in treaty-making history. As a matter of fact, speaking at the signature ceremony, then Secretary-General Javier Pérez de Cuéllar considered the Convention as possibly the most significant legal instrument of the twentieth century after the UN Charter. It is the sense of mutual accommodation and balance built in this Convention that explains why an overwhelming number of States (157) signed it on the very first day it was open for signature, in December 1982. This wide support has been confirmed by the very large number of States that became parties in a relatively short period of time (as of February 2002, 138 States had ratified the Convention). Its almost universal acceptance as a global treaty for the oceans also attests to its well-balanced approach. It was further strengthened with the adoption of the New York Implementation Agreement, which addressed the specific difficulties that some industrialized nations had with the international seabed regime. There are 30 coastal States (including some signatories) and 26 landlocked countries that have not ratified or acceded to the Convention. As we celebrate its twentieth anniversary, we must take stock of its impact on ocean affairs. There is no doubt that it has contributed much to bring stability and order to the oceans. The era of unilateral claims and sovereignty disputes, which gave rise to many conflicts between States in the sixties and seventies, seem to be a thing of the past. State practice indicates that the Convention is a reference treaty for States parties and non-parties alike, providing them with the necessary guidance on ocean affairs and the law of the sea, thus playing a stabilizing role in inter-State relations. The gradual incorporation of the Convention's regime into the national legislation, which started even before its entry into force in November 1994, has increased year after year. On the other hand, though there still seem to exist a good number of excessive maritime claims related to specific issues made by developed and developing countries, some States have taken measures to correct their legislation to bring it within the bounds of the Convention. This is a good trend that can only strengthen its authority and unified application. Perhaps the most astonishing sign that augurs well for the Convention's universality is the unexpected help it has been receiving from a major ocean user. Paradoxically, though in pursuance of its own purposes as a major maritime power, the United States has contributed much to strengthen the unified application of the Convention by consistently lodging protests against maritime claims perceived to go beyond what is allowed by the treaty. It might seem strange to state this in light of the negative stance that the United States has had towards its participation in the Convention, but this is what has happened. Even though it did not sign nor has it acceded to the Convention—notwithstanding the changes introduced to the seabed regime by the 1994 New York Implementation Agreement, essentially aimed at removing the United States' difficulty with the Convention-no country has consistently come out more forceful in defense of the Convention against excessive national claims than the United States. In so doing, it has been and is rendering, strangely enough, a good service to the consolidation and stability of the Convention's legal regime, ensuring that States national legislations do conform in spirit and letter with what they consider to be "customary international law as reflected in the 1982 United Nations Convention on the Law of the Sea". The best contribution, however, to this most useful global legal instrument for the oceans is for any State, especially for a coastal State with major and varied ocean interests to protect, to be a full and formal party to it. |
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