2. Caretakers of the sea

Posted: 13 October 2000

Author: Jean-Pierre Levy

Author Info: Dr Jean-Pierre Levy is former Director of the Division of Oceans Affairs and the Law of the Sea, United Nations and is Executive Secretary of the Independent World Commission on the Oceans.

The Convention on the Law of the Sea has begun the job of protecting the world's oceans but there is a long way still to go, says Jean-Pierre Levy.

"A constitution for the Oceans, the most important agreement among Nations since the adoption of the Charter of the United Nations." This was the adoption of the Convention on the Law of the Sea hailed in 1982. After a fundamental change in one of its components dealing with the deep seabed and its resources, the Convention entered into force on 16 November 1994. It is now strongly supported by almost all States of the world, including all the major maritime powers. dolphinDusky dolphin, Kaikoura, New Zealand© Mark Cowardine/Still PicturesSo how is it working? Is this set of rules usefully regulating the use of ocean resources and the preservation of the marine environment for future generations? Or Not?

The Convention is predicated on the premise that "the problems of ocean space are closely interrelated and need to be considered as a whole". Consequently, it tries to regulate all activities of States in the marine environment, whether it be the exercise of sovereignty, navigation, exploitation of resources, conduct of scientific research, preservation of the environment, development and transfer of technology, or settlement of disputes.

In reality, the new Law of the Sea has successfully solved a number of difficult issues relating to the exercise by States of their jurisdiction over ocean space and its resources, but it does not provide answers to all of them.

Limits at sea

Among its major achievements are the adoption of clear limits of jurisdiction of coastal States over ocean areas and the concomitant rules of navigation, the basic guidelines for the use of ocean resources and the creation of institutions in particular for the peaceful settlement of disputes.

After centuries of divergent practices, at last all coastal States have agreed to adopt a uniform limit for an adjacent belt of sea over which they have complete sovereignty. The maximum breadth of their territorial sea is now fixed at 12 nautical miles. In this zone, all foreign ships have a right of innocent passage which means that they are only allowed to traverse that sea and that submarines are required to navigate on the surface.

As this provision has placed under national sovereignty more than 100 straits used for international navigation, a new regime of transit passage has been adopted which allows for freedom of navigation through these straits including the right of submarines to navigate submerged.

Beyond to a territorial sea, whenever possible, States can declare an exclusive economic zone which should not extend beyond 200 miles. In this zone, while complete freedom of navigation is maintained, coastal States have sovereign rights over living and non-living resources and some additional rights as well as some specific duties.

Beyond these zones the high seas start where all states enjoy the traditional "freedom of the seas". Over their continental shelf which is the natural prolongation of land territory under the sea either arbitrarily fixed at 200 miles (in the absence of a shelf) or extending up to the limit of the continental margin with a maximum of 350 miles, they have sovereign rights to exploit the mineral resources and sedentary living resources.

As far as the deep seabed beyond the limits of national jurisdiction is concerned, it has been declared a "common heritage of mankind" and its resources will have to be exploited under the control of the International Seabed Authority established in Jamaica.

Ocean resources

A number of provisions of the new Law deal with the resources of the ocean, in particular with fisheries in the Exclusive Economic Zone, where some 90 per cent of the resources are to be found. The initial provisions of the Convention dealing with straddling stocks and highly migratory stocks were found insufficient in the light of the collapse of a number of fisheries around the world.

A new agreement was agreed in 1995 which should go a long way toward rational use and management of fish stocks also to be found in the high seas, providing it is implemented by all concerned in good faith.

Institutions

When the Convention came into force in 1994, three institutions were created.

  • The Commission on the Limits of the Continental Shelf was set up to consider the information submitted by coastal states concerning the outer limits of their continental shelf in areas where it extends beyond 200 miles. Once the Commission has pronounced, the limits established by the coastal state on the basis of this recommendation shall be final, and will determine the extent of the international seabed area.
  • The International Seabed Authority, established in Kingston Jamaica will control activities in this area. Initially conceived with quasi supra-national powers the provisions relating to its functions and management were not acceptable to most industrial powers including the United States, the United Kingdom and the Federal Republic of Germany which refused to sign the Convention for this reason. An agreement adopted on 28 July 1994 removed from the initial text all the provisions unacceptable to the major industrialised powers and thus paved the way to the universal acceptance of the Convention. However the Authority remains a potential for the future.
  • The International Tribunal for the Law of the Sea established in Hamburg, Germany was created specifically to become the major judicial body to handle disputes relating to ocean affairs. It has established special chambers, including a Seabed Dispute chamber where not only States but also the Authority as well as natural and juridical persons can appear. The Tribunal is expected to play a major role in the development of a body of jurisprudence.
Unfinished agenda

Besides these major achievements, the Convention contains provisions which are either too general or too limited in their scope to solve some present and foreseeable problems. Some of these weakness were identified by the Independent World Commission on the Oceans which is due to report this year. These weaknesses relate essentially to the question of peace and security, the use of the high seas and the protection of the environment.

Despite the frequent reference to "peaceful uses of the sea" in the Convention, no substantive content is given to this expression. Nowadays, peace and security is understood as going much beyond the absence of military hostilities to problems of food, environment terrorism, drug trafficking and piracy. There is an urgent need to adopt new and forceful measures to effectively ensure peace and security in the oceans.

It also seems timely to revisit the traditional concept of "freedom of the high seas" in view of the increasing threats posed by various abuses including overfishing and environmental degradation including dumping. It is proposed to consider the High Seas as a public trust where the States are to act as trustees and the beneficiaries are the people of the world.

Marine environment

Finally, it is in the field of the preservation of the marine environment that the greatest effort has to be made. fishermenFishermen, San Pedro, Belize© Tony Rath/WWFThe Convention on the Law of the Sea has established a general framework requesting States to adopt laws, regulations and standards to prevent, reduce and control pollution from all possible sources: from land-based, sea-bed activities, dumping, vessels sources and the atmosphere.

It is now up to responsible States to translate these general injunctions into detailed rules. In some cases, the adoption of new Conventions such as that on Climate Change or on Biological Diversity will have a positive impact. Similarly the Plan of Action concerning land-based sources of pollution is promising, as almost 80 per cent of the pollution of the sea stems from land sources.

However, more than conventions and plans of action are needed. The future of the ocean needs a greater understanding of its importance for the survival of humankind and a general mobilisation of all energies at the individual as well as collective level. International law and the behaviour of States are ultimately responsive to people's pressure.

Let us create such a pressure.