A PROJECT ON

LAW OF SEA,1982 CONVENTION: CRITICAL ANALYISIS

(Special project for Semester VII)

Submitted By
DEEPANSHU BANSOD
SEMESTER X
Batch 12

Submitted To
Ms. ANUKRITI MISHRA

HIDAYATULLAH NATIONAL LAW

UNIVERSITY
RAIPUR CHHATTISGARH
 DECLARATION

I hereby declare that the project work entitled Law of sea, 1982 convention, critical analysis
submitted to HNLU, Raipur, is record of an original work done by me under the able guidance of
Ms. Aparajita Das, Faculty, HNLU, Raipur.

DEEPANSHU BANSOD

Semester X

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 ACKNOWLEDGEMENT

With a deep sense of gratitude, I acknowledge the help of all those people who have made the
completion of this project possible. I would like to thank my teacher Ms. Anukriti Mishra for
her help and guidance and also for putting her faith on me by giving me such a topic to work on.
Sir, thanks for the opportunity which helped me grow.

My gratitude also goes out to the staff and administration of HNLU for the infrastructure in the
form of our library and IT Lab that was a source of great help for the completion of this project.

Last but not least, I would like to thank my family and all my friends who helped me do this
project by sharing their ideas when we discussed together.

DEEPANSHU BANSOD

Semester X

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 CONTENTS

DECLARATION...2
ACKNOWLEDGEMENT....3
CH 1- INTRODUCTION.........5
OBJECTIVE AND RESEARCH METHODOLOGY6
CHAPTER 2: HISTORICAL BACKGROUND 7-8
CHAPTER 3: ARTICLES UNDER UNITED NATIONS CONVENTIONS OF LAW OF SEA.8-10
CHAPTER 4: THREE CONFERENCES OF UNITED NATIONS CONVENTIONS OF LAWS OF
SEA.10-12
CHAPTER 5: CRITICAL ANALYSIS ...............................................................12-13
CONCLUSION14
BIBLIOGRAPHY........15

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 CHAPTER 1: INTRODUCTION
The oceans cover 70 per cent of the earth's surface, and constitute the most extensive and yet the
least understood ecosystem known to mankind. There have been long standing efforts to
conserve this resource and a lot of debate has gone into arriving at a set of comprehensive laws
that govern the exploitation of this invaluable resource. With pollution becoming a major
concern for the modern-day mankind, it has only become increasingly apparent that conservation
of marine living resources present much more complex problems of regulation and management
than hitherto envisaged during the centuries which they have been exploited by humans. As a
result of the years of debate and disagreement among nations over a conclusive law on this
subject, the United Nations Convention on the Law of the Sea (hereinafter UNCLOS), was
adopted and opened for signature in the year 1982. The UNCLOS was the result of an instruction
by the General Assembly Resolution that convened UNCLOS III, to arrive at a single thorough
treaty that deals with the law of the sea, including issues such as fishing and marine scientific
research.

The United Nations Convention on the Law of the Sea (UNCLOS), also called the Law of the
Sea Convention or the Law of the Sea treaty, is the international agreement that resulted from the
third United Nations Conference on the Law of the Sea (UNCLOS III), which took place
between 1973 and 1982. The Law of the Sea Convention defines the rights and responsibilities of
nations with respect to their use of the world's oceans, establishing guidelines for businesses, the
environment, and the management of marine natural resources. The Convention, concluded in
1982, replaced four 1958 treaties. UNCLOS came into force in 1994, a year after Guyana
became the 60th nation to ratify the treaty. As of June 2016, 167 countries and the European
Union have joined in the Convention. It is uncertain as to what extent the Convention codifies
customary international law.

This project is the study of critical analysis of law of sea and United Nations Convention 1982.

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 OBJECTIVES

To critically analysis the law of sea 1982 convention.

RESEARCH METHODOLOGY

The present study is a doctrinal and descriptive study based on the critical review of both
primary & secondary sources. Secondary & Electronic resources have been largely used to
gather information & data about the topic. Books & other references have been primarily helpful
in giving this project a firm structure. Websites, dictionaries & articles have also been referred.
Footnotes have been provided wherever needed, to acknowledge the sources.

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 CHAPTER 2: HISTORICAL BACKGROUND

The Law of the Sea was needed due to the weakness of the older 17th century concept of the
freedom of the seas'. Earlier, national rights were limited to a specified belt of water extending
from a nation's coastlines, usually three nautical miles or 6 kilometres. All water beyond national
boundaries was considered international waters - free to all nations but belonging to none of
them.

With the ushering in of the 20th century, states began to demand sovereignty over the seas close
to their territories. Their claims of sovereignty included national claim over the mineral
resources, to protect fish stocks and to have the develop methods of controlling pollution of the
oceanic resources. Sadly, protection of marine environment was not given special importance in
the Geneva Conference on Law of the Sea in 1958, and the Geneva Conventions have little to
say on the subject. UNCLOS sets out extensive provisions for conducting marine scientific
research and for marine environment protection, which find applicability for nation states within
and outside their national jurisdiction. Under UNCLOS states can be held liable for all activities
which may affect the marine environment, regardless of where they are conducted, including the
high seas. At the end of the nine years that the Convention took for finalizing, there were new
legal concepts that were evolved such as exclusive economic zones (hereinafter EEZs), outer
limit of continental shelfs, scientific research, the special status of the deep-sea bed, settlement of
disputes etc. New institutions such as the International Seabed Authority and International
Tribunal on the Law of the Sea were also created as a result of UNCLOS, to regulate the various
aspects of marine resource management.

The primary change introduced by UNCLOS was the introduction of EEZs upto the limit of 200
nautical miles. There was a lot of effort put into the negotiations regarding coastal states and the
effective management of their resources. The adoption of the EEZs gave coastal states sovereign
rights over the resources to be found in a 200-mile maritime zone. The concept of the exclusive
economic zone was primarily designed to satisfy the legitimate interests of coastal states in
adjacent maritime areas, establishing clear limits to the sovereign rights of coastal states over the
living resources to be found in the zone. The exclusive economic zone for the fisheries therefore,
removes this zone from the high seas common property regime. There is neither freedom of
fishing for other states or unfettered freedom of scientific research. It also adopts special rules for

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certain species of fish and marine mammals. Despite the co-ordinated ecosystem strategies
referred to earlier, UNCLOS does not provide any mechanism for co-ordinating either existing
fisheries commissions or the relationship between fisheries conservation and other conservatory
conventions in general.1

CHAPTER 3: ARTICLES UNDER UNITED NATIONS CONVENTIONS OF LAW

OF SEA

Article 3 of UNCLOS established a 12-mile limit for the territorial sea, over which the coastal
state has sovereignty, subject to provisions of UNCLOS and other principles of international law,
including any conservatory conventions which that member state may be party to. UNCLOS also
talks of archipelagic states and gives them the liberty to draw straight baselines joining the
outermost points of their outer islands and reefs. The enclosed area constitutes the territorial sea
of the archipelagic state.

Under Article 51 however, such a state is bound to respect existing agreements with neighboring
states and recognize their traditional rights related to the sea. Such states however, need to take
measures for conservation of fish in their EEZ, subject to Article 61 of the UNCLOS, which
talks about the conservation of the living resources.

UNCLOS also addresses the issue of preserving marine life in the continental shelf area. A
continental shelf is a relatively shallow area of seabed over which a great deal of marine life is
found. Coastal states bordering this region have sovereign rights over the seabed mineral
resources found in this area. Even though this Convention does not clearly lay down the position
on the sovereignty over the shallow area near the continental shelf, but like the Continental Shelf
Convention of 1958, UNCLOS includes the living organisms belonging to sedentary species'
within its definition of the natural resources' of the continental shelf over which the coastal state
may exercise its rights. These organisms are defined as organisms which at the harvestable
stage, either are immobile on or under the seabed or are unable to move except in constant

1 https://www.lawteacher.net/free-law-essays/transportation-law/law-of-sea-
convention.php

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physical contact with the seabed or subsoil. However, considering the ambiguity of this
definition, there was doubt concerning which of these resources were excluded from the high
seas definition of the high seas freedom of fishing.

The position regarding continental shelf is such that if continental shelf extends beyond 200
nautical miles, the waters beyond this limit will not be covered under the protective provision of
the EEZ. Moreover, even though the shelf resources will be under the exclusive control of the
coastal state, sedentary species in this furthermost area are removed both from high seas freedom
of fishing and from EEZ requirements for optimum utilization and access to any surplus stocks.
Where UNCLOS differs from Continental Shelf Convention is that the latter made provisions to
check any unjustifiable interference' to navigation, fishing scientific research, or conservation of
living resources of the sea, whereas the former is relatively much less specific with regard to
conservation matters.

With regard to deep seabed organisms, UNCLOS presents a problem as it does not define clearly
which legal regime is applicable to the varied species of micro-organisms, fish, crustaceans,
molluscs etc, which are found inhabiting the deep seabed and are known to be of great value for
their genetic make and for research purposes. The Convention is silent when it comes to defining
the laws for their use in scientific research or commercial purposes. UNCLOS has spoken only
when it comes to mineral resources in the deep seabed and therefore, has yet again left
considerable vagueness in the provision of law governing the deep seabed organisms. This may
lead to exploitation of these resources and cause damage to the biodiversity in this area.

With respect to the high seas, it has been known that many species of fish migrate between EEZs
and the high seas and many species of marine mammals spend a considerable part of their lives
there during migrations between feeding and breeding grounds. Part VII of UNCLOS recognizes
a state's right for their nationals to engage in fishing on the high seas, subject to existing treaty
obligations and to the rights and duties and interests of the coastal states towards conserving
migratory species of organisms found in these areas, i.e., between the EEZs and the high seas, in
keeping with the provisions of the Convention under Articles 63-67.2

2 McDorman, Ted L., The 1982 Law of The Sea Convention: The First Year', 15 J. Mar.
L. & Com. 211 1984

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A special mention should be made of Article 63(2) which obliges coastal states and states fishing
stocks beyond EEZs to seek to agree on the measures necessary to co-ordinate and ensure the
conservation and development of such stocks'. The cause of concern here is that this Article sets
out an either-or provision for conservation, meaning thereby, that state parties under this Article
may take measures for conservation either directly' or through appropriate regional or sub-
regional organizations. This means that the latter is not a compulsion and may be given a pass by
the states. Furthermore, under Article 118, there are provisions set out for cooperation between
states exploiting the same resources in the same area to enter into negotiations for taking
necessary conservation measures'. Then again, there is no express provisions for a concrete body
or institution under which such negotiations can be carried out. Leaving ambiguous provisions
calling for negotiations between states leaves scope for non-compliance of the provision as well
the danger of each state party pursuing their own selfish interest without paying much heed to
conservation. These Articles unlike Article 61 which has been aforementioned, do not call for
ensuring proper means of conservation and management measures and therefore, leave the
oceanic living resources under these regions susceptible to over-exploitation.3

CHAPTER 4: THREE CONFERENCES OF UNITED NATIONS CONVENTIONS

OF LAWS OF SEA

After the Second World War, the international community requested that the United Nations
International law Commission consider codifying the existing laws relating to the oceans. The
commission began working towards this in 1949 and prepared four draft conventions, which
were adopted at the first UN Conference on the Law of the Sea:

The First United Nations Conference on the Law of the Sea (UNCLOS I) from February 24
until April 29, 1958. UNCLOS I adopted the four conventions, which are commonly known as
the 1958 Geneva Conventions:

The Convention on the Territorial Sea and Contiguous Zone;

The Convention on the High Seas;
The Convention on Fishing and Conservation of the Living Resources of the
High Seas; and
The Convention on the Continental Shelf.

3 http://www.brill.com/sites/default/files/ftp/toc/18122_Vol%201.pdf

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While considered to be a step forward, the conventions did not establish a maximum breadth of
the territorial sea.

The Second United Nations Conference on the Law of the Sea (UNCLOS II) from March 17
until April 26, 1960. UNCLOS II did not result in any international agreements. The conference
once again failed to fix a uniform breadth for the territorial or establish consensus on sovereign
fishing rights.

The Third United Nations Conference on the Law of the Sea (UNCLOS III) from 1973 to
1982. UNCLOS III addressed the issues bought up at the previous conferences. Over 160 nations
participated in the 9-year convention, which finally came into force on November 14, 1994, 21
years after the first meeting of UNCLOS III and one year after ratification by the sixtieth state.
The first sixty ratifications were almost all developing states.

A major feature of the convention included the definition of maritime zones- the territorial sea,
the contiguous zone, the exclusive economic zone, the continental shelf, the high sea, the
international sea-bed area and archipelagic waters. The convention also made provision for the
passage of ships, protection of the marine environment, freedom of scientific research, and
exploitation of resources.4

CHAPTER 5: CRITICAL ANALYSIS

UNCLOS makes extensive provisions regarding conduct of marine scientific research

and marine environmental protection. Other international instruments further
complement, enhance and implement the marine environmental protection provisions of
UNCLOS and are continually evolving in response to our growing understanding of the
ocean and the effects of our activities on it. Evolution of principles such as the
precautionary and polluter-pays principles as well as ecosystem-based management are
examples of efforts taken in this regard. However, the marine scientific research
provisions have not been developed equally well under UNCLOS. To ensure that the
right to obtain potentially commercially valuable information on resources within its
marine jurisdiction remains with the coastal state, the MSR regime and state practice
effectively remove over one-third of the ocean from scientific examination. This situation
hampers the global community's ability to identify, investigate and assess the effects of

4 http://www.continentalshelf.org/about/1143.aspx

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 the community's activities on the global marine environment, and to develop
scientifically robust policies for its sustainable use.5

One can also sense a disjunction between marine scientific research and environment
protection regimes, especially in case of experimental activities that intentionally
introduce perturbations into the marine environment and these activities are only
increasing everyday with more and more technological developments. Such experiments
conducted in the ocean to obtain important scientific data enhances our knowledge of the
ocean and contributes valuable information on the marine environment. However, such
work may also have significant environmental effects, which may even become
synergistic or additive, with unknown consequences for the marine environment.

When countries first came together for the Third United Nations Conference on the Law
of the Sea in 1974, the developing countries were determined to play a pro-active role in
formulating new and comprehensive laws to manage oceanic resources. They were
convinced that freedom of the seas would have to be regulated in accordance wit and
balanced against the needs of all nations to safeguard their economic interests as well as
their national security and sovereignty. The long-standing laissez faire policy with respect
to the high seas had ceased to serve international justice and was being exploited by few
powerful countries to monopolise the marine resources. UNCLOS tried to change this
practice but did not succeed to a large extent.

Through the creation of high seas, and more importantly through the adoption of
conflicting concepts of mare liberum, sovereignty, and resource management, UNCLOS
unwittingly has allowed for the over-exploitation of migratory marine species on the high
seas. The overexploitation has focused on a few developed nations at the detriment of the
majority of developing nations. Attempts to regulate the migratory species through the
creation of Regional Fisheries Organizations (hereinafter RFOs) has led to conflict

5 McDorman, Ted L., The 1982 Law of The Sea Convention: The First Year', 15 J. Mar.
L. & Com. 211 1984

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 between notions of mare liberum, or freedom of the high seas, and internationally
accepted principles of sovereignty.

A better method for regulating migratory marine species has been shown through
unilateral state action in the form of trade embargos. Further, suggestions to redefine
certain areas of the high seas in an attempt to create strong management controls without
destroying notions of mare liberum and sovereignty have been suggested. One of these
proposed solutions seems to focus on the power of developed nations, and it is
questionable whether developing nations will benefit from the protection of resources on
the high seas.
It should however, be kept in mind that UNCLOS has not entirely failed. Compared to
the 44 countries and the 86 and 88 participants in the 1930, 1958 and 1960 Conferences,
respectively, UNCLOS III started with 137 participating countries in 1974 and then this
number rose to 156 in 1976. Also, even during the third conference, with the large
number of participants, there was a lot of discord among the countries and yet credit
should be given to the nations for evolving a largely comprehensive law at the end of the
conference. We have already discussed how a large number of regulatory bodies were
established under the aegis of UNCLOS such as those regulating the seabed, and
International Tribunal on the Law of the Sea, etc. Even though it is still not very well-
defined, UNCLOS also has tried to regulate and streamline scientific research.
Furthermore, it has tried largely to lay down provisions for protection of environment and
marine resources.6

6 Birnie, P.W. and A.E. Boyle, 2002, International Law and the Environment', Oxford
University Press, New Delhi, 2nd Edition

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 CONCLUSION
The 1982 Law of the Sea Convention (LOSC) sets forth a comprehensive legal framework for
the sea, the seabed and its subsoil, and the protection of the marine environment and its natural
and cultural resources. The Convention recognizes the limits of a coastal nations maritime
zones and boundaries, balancing the rights of coastal States with those of flag states in each of
the maritime zones with a greater preference for coastal state rights in the zones closest to the
coastal States shores.

Therefore, if one were to make a conclusion on the success or failure of the UNCLOS after three
decades of its existence, one would have to say that the answer would be midway between
success and failure.. Professor Vezijl, a noted scholar who was present at the 1958 Conference
can be quoted to describe the UNCLOS after three decades to be as a whole, it has been a
success. As for the failures of the Convention, one can only hope that the shortcomings and the
lacunae existent in the UNCLOS can be amended and steps can be taken to improve upon the
provisions which fall short on meeting their desired goals. One will truly see a just and fair
regulation of the marine resources and will be able to take adequate measures to save our
precious oceans and all the resources it had to offer.

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 BIBLIOGRAPHY

https://www.lawteacher.net/free-law-essays/transportation-law/law-of-sea-
convention.php
McDorman, Ted L., The 1982 Law of The Sea Convention: The First Year', 15 J.
Mar. L. & Com. 211 1984
http://www.brill.com/sites/default/files/ftp/toc/18122_Vol%201.pdf
http://www.continentalshelf.org/about/1143.aspx
McDorman, Ted L., The 1982 Law of The Sea Convention: The First Year', 15 J.
Mar. L. & Com. 211 1984
Birnie, P.W. and A.E. Boyle, 2002, International Law and the Environment',
Oxford University Press, New Delhi, 2nd Edition

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