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08/16/2007
Law of the Sea, Part I
A headline in BBC News on Monday, Aug. 13, reads “Arctic sea
ice set to hit new low.” Items like this lend credence to stories
you’re seeing the last few weeks, as the likes of Russia and
Canada are staking their claims to the oil and minerals under an
Arctic that is becoming increasingly accessible.
But what is the background behind the laws that govern the seas
and territories? For this I turn to the United Nations. Following
is their background on the topic, leading up to the 1982 Law of
the Sea Convention.
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A Historical Perspective
The oceans had long been subject to the freedom-of-the-seas
doctrine – a principle put forth in the seventeenth century
essentially limiting national rights and jurisdiction over the
oceans to a narrow belt of sea surrounding a nation’s coastline.
The remainder of the seas was proclaimed to be free to all and
belonging to none. While this situation prevailed into the
twentieth century, by mid-century there was an impetus to extend
national claims over offshore resources. There was growing
concern over the toll taken on coastal fish stocks by long-
distance fishing fleets and over the threat of pollution and wastes
from transport ships and oil tankers carrying noxious cargoes that
plied sea routes across the globe. The hazard of pollution was
ever present, threatening coastal resorts and all forms of ocean
life. The navies of the maritime powers were competing to
maintain a presence across the globe on the surface waters and
even under the sea.
A tangle of claims, spreading pollution, competing demands for
lucrative fish stocks in coastal waters and adjacent seas, growing
tension between coastal nations’ rights to these resources and
those of distant-water fishermen, the prospects of a rich harvest
of resources on the sea floor, the increased presence of maritime
powers and the pressures of long-distance navigation and a
seemingly outdated, if not inherently conflicting, freedom-of-the-
seas doctrine – all these were threatening to transform the oceans
into another arena for conflict and instability.
In 1945, President Harry S. Truman, responding in part of
pressure from domestic oil interests, unilaterally extended United
States jurisdiction over all natural resources on that nation’s
continental shelf – oil, gas, minerals, etc. This was the first
major challenge to the freedom-of-the-seas doctrine. Other
nations soon followed suit.
In October 1946, Argentina claimed its shelf and the
epicontinental sea above it. Chile and Peru in 1947, and Ecuador
in 1950, asserted sovereign rights over a 200-mile zone, hoping
thereby to limit the access of distant-water fishing fleets and to
control the depletion of fish stocks in their adjacent seas.
Soon after the Second World War, Egypt, Ethiopia, Saudi
Arabia, Libya, Venezuela and some Eastern European countries
laid claim to a 12-mile territorial sea, thus clearly departing from
the traditional three-mile limit.
Later, the archipelagic nation of Indonesia asserted the right to
dominion over the water that separated its 13,000 islands. The
Philippines did likewise. In 1970, Canada asserted the right to
regulate navigation in an area extending for 100 miles from its
shores in order to protect Arctic water against pollution.
From oil to tin, diamonds to gravel, metals to fish, the resources
of the sea are enormous. The reality of their exploitation grows
day by day as technology opens new ways to tap those resources.
In the late 1960s, oil exploration was moving further and further
from land, deeper and deeper into the bedrock of continental
margins. From a modest beginning in 1947 in the Gulf of
Mexico, offshore oil production, still less than a million tons in
1954, had grown to close to 400 million tons. Oil drilling
equipment was already going as far as 4,000 meters below the
ocean surface.
The oceans were being exploited as never before. Activities
unknown barely two decades earlier were in full swing around
the world. Tin had been mined in the shallow waters off
Thailand and Indonesia. South Africa was about to tap the
Namibian coast for diamonds. Potato-shaped nodules, found
almost a century earlier and lying on the seabed some five
kilometers below, were attracting increased interest because of
their metal content.
And then there was fishing. Large fishing vessels were roaming
the oceans far from their native shores, capable of staying away
from port for months at a time. Fish stocks began to show signs
of depletion as fleet after fleet swept distant coastlines. Nations
were flooding the richest fishing waters with their fishing fleets
virtually unrestrained: coastal States setting limits and fishing
States contesting them. The so-called “Cod War” between
Iceland and the United Kingdom had brought about the spectacle
of British Navy ships dispatched to rescue a fishing vessel seized
by Iceland for violating its fishing rules.
Offshore oil was the center of attraction in the North Sea.
Britain, Denmark and Germany were in conflict as to how to
carve up the continental shelf, with its rich oil resources.
It was late 1967 and the tranquility of the sea was slowly being
disrupted by technological breakthroughs, accelerating and
multiplying uses, and a super-Power rivalry that stood poised to
enter man’s last preserve – the seabed.
It was a time that held both dangers and promises, risks and
hopes. The dangers were numerous: nuclear submarines charting
deep waters never before explored; designs for antiballistic
missile systems to be placed on the seabed; supertankers ferrying
oil from the Middle East to European and other ports, passing
through congested straits and leaving behind a trail of oil spills;
and rising tensions between nations over conflicting claims to
ocean space and resources.
The oceans were generating a multitude of claims, counterclaims
and sovereignty disputes.
The hope was for a more stable order, promoting greater use and
better management of ocean resources and generating harmony
and goodwill among States that would no longer have to eye
each other suspiciously over conflicting claims.
On 1 November 1967, Malta’s Ambassador to the United
Nations, Arvid Pardo, asked the nations of the world to look
around them and open their eyes to a looming conflict that could
devastate the oceans, the lifeline of man’s very survival. In a
speech to the United Nations General Assembly, he spoke of the
super-Power rivalry that was spreading to the oceans, of the
pollution that was poisoning the seas, of the conflicting legal
claims and their implications for a stable order and of the rich
potential that lay on the seabed. Pardo ended with a call for “an
effective international regime over the seabed and the ocean floor
beyond a clearly defined national jurisdiction.” “It is the only
alternative by which we can hope to avoid the escalating tension
that will be inevitable if the present situation is allowed to
continue,” he said.
Pardo’s urging came at a time when many recognized the need
for updating the freedom-of-the-seas doctrine to take into
account the technological changes that had altered man’s
relationship to the oceans. It set in motion a process that spanned
15 years and saw the creation of the United Nations Seabed
Committee, the signing of a treaty banning nuclear weapons on
the seabed, the adoption of the declaration by the General
Assembly that all resources of the seabed beyond the limits of
national jurisdiction are the common heritage of mankind and the
convening of the Stockholm Conference on the Human
Environment. What started as an exercise to regulate the seabed
turned into a global diplomatic effort to regulate and write rules
for all ocean areas, all uses of the seas and all of its resources?
These were some of the factors that led to the convening of the
Third United Nations Conference on the Law of the Sea, to write
a comprehensive treaty for the oceans.
The Conference was convened in New York in 1973. It ended
nine years later with the adoption in 1982 of a constitution for
the seas – the United Nations Convention on the Law of the Sea.
During those nine years, shuttling back and forth between New
York and Geneva, representatives of more than 160 sovereign
States sat down and discussed the issues, bargained and traded
national rights and obligations in the course of the marathon
negotiations that produced the Convention.
Source: un.org
Next week we’ll explore the issue further.
Brian Trumbore
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