Maritime Affairs Program (MAP) Handbill Spotlight

So far, UNCLOS has been ratified by 168 parties, including 167 states and the European Union. This latest Convention established three new institutions on the international maritime scene: the International Tribunal for the Law of the Sea, the International Seabed Authority, and the Commission on the Limits of the Continental Shelf. Furthermore, among other adjustments made, the 1982 Convention defined a coastal nation’s exclusive economic zone (EEZ) as 200 nautical miles from the coast and territorial waters as twelve nautical miles from the coast; a legally recognized standard for countries to abide by. 

Since its adoption, two additional instruments were concluded under the Convention: the 1994 Agreement relating to the Implementation of Part XI of UNCLOS and the 1995 UN Fish Stocks Agreement. A third treaty under UNCLOS, one on Marine Biodiversity of Areas Beyond National Jurisdiction (BBNJ), is currently being negotiated in the Intergovernmental Conference convened under the auspices of the United Nations, as decided by the General Assembly in the 72nd session.

Recent Events

In 2022, UNCLOS approached the 40th anniversary of its adoption into law. To celebrate, on April 29, 2022 the United Nations General Assembly held a special session to mark the significance and successful outcomes of rules-based multilateralism by such an international legal framework. 

At this 40th anniversary special session, multiple representatives from key maritime nations and international bodies shared their thoughts on UNCLOS and what it has accomplished over the decades. Abdulla Shahid, President of the UN General Assembly, said the convention has “laid the foundation of our ocean governance, with the first single set of rules for ocean and seas.” Singaporean Ambassador-at-Large Tommy Koh, the former President of the Third Conference on the Law of the Sea, also lauded the Convention, calling it “a victory for international law and the rule of law and a victory for the peaceful settlement of disputes.” However, not all discussion was celebratory. Singapore’s Foreign Minister Vivian Balakrishnan emphasized the limitations of UNCLOS as it still lacks ratification from the world’s premier maritime power—the United States. In addition, Balakrishnan pointed out how some countries unilaterally define some ambiguous terms to achieve their own ends, which can sully the Convention as an objective tool of law.

It is true that the U.S. is yet to ratify UNCLOS, but the need to do so is not being ignored outright in Washington. Just this past March, the U.S. House of Representatives passed the America Creating Opportunities to Meaningfully Promote Excellence in Technology, Education and Science (COMPETES) Act of 2022, aiming to increase U.S. economic competitiveness with China. Notably, the bill included an amendment that stipulated it is in the nation’s best interest to ratify the UNCLOS formally.

Keep In Mind

In order to reach agreement among the exceptionally diverse interests of all its member states, during its development the writers of UNCLOS had to accept many compromises. Whenever negotiation proved impossible, they settled on ambiguity. For example, Article 121 Regime of Islands loosely defines an island as “a naturally formed area of land, surrounded by water, which is above water at high tide.” By not clarifying the legal standards on natural formation of islands as well as the characteristics of rocks,  there is space for countries to argue for their own interests.

The Convention’s attempt to achieve a consensus is admirable and understandable. But over time these ambiguities have greatly undermined the legitimacy of the Convention itself. Some parties twist these ambiguities to their taste, causing some others to no longer take UNCLOS seriously. Take the Arbitral Tribunal in the South China Sea Arbitration between China and the Philippines in 2016 as an illustration. For three years, the Arbitration Tribunal set under Annex VII of UNCLOS debated over the legality of China’s “nine-dash line”, its claims to historic rights, the status of certain maritime features, and the legality of certain Chinese activities in the South China Sea. Although an award was unanimously issued under UNCLOS in July 2016, which was largely in the Philippines’ favor, China firmly and immediately rejected the ruling, based on its legal argument on the admissibility and jurisdiction of the Arbitration Tribunal.

As coastal states constantly feel threatened by foreign military activities in their EEZs over their national security and maritime environment, the increase of maritime crime also forced them to extend their control beyond the territorial sea. This, hence, creates a security dilemma as maritime powers are simultaneously concerned about the possible restrictions of their naval and air access and mobility caused by such extensions and have little faith in UNCLOS.

Regarding the role of UNCLOS in the China-U.S. maritime relations, controversy is also found. China has been accused of deliberately obscuring its maritime claims in the South China Sea by using terms not found in the UNCLOS, such as “adjacent waters” and “relevant waters.” And some countries keep demanding that China “clarify” the legal status of its Nine-Dash Line map. On the other hand, under both the Trump and Biden administrations, the U.S. has aligned itself with the tribunal’s decision, objecting to China’s maritime claims in the South China Sea on the grounds that they violate international law. As described by the U.S. Department of State, freedom of navigation operations (FONOPs), one of the most frequently cited tenets of the 1982 Convention, were designed to “challenge coastal state maritime claims that unlawfully restrict navigation and overflight rights and freedoms and other internationally lawful uses of the sea related to these freedoms guaranteed in international law as reflected in the 1982 Law of the Sea Convention.” The U.S. frequently conducts FONOPs around China and elsewhere around the world and releases a report each year summarizing U.S. operations. Such denunciations and activities, however, reduce in credibility given that the United States has still not ratified UNCLOS despite having participated in its formulation.

With that being said, the existence of UNCLOS as a statute of international law is invaluable. In addition to regulating the sustainable development of the oceans and their natural resources, it serves an important role to maintain regional as well as global stability among nations. Although the Convention still contains ambiguity, opportunities to improve are still present. For example, more addendums could be made to address indigenous peoples’ rights and the protection of underwater cultural heritage, which could potentially lead to increased collective efforts of its member states. Additionally, some experts have argued that UNCLOS can be a framework to establish stable and efficient international space law on issues such as the exploration and exploitation of natural resources. Its provisions on innocent passage also offer a potential model for resolving military use and potential conflict in space. Thus, while UNCLOS still lacks complete clarifications on some vital concepts and ratifications from powerful parties such as the United States, it excellently fulfills the role of an essential legal framework for understanding, judging, addressing and resolving issues in the global maritime realm while also offering possibilities for future interdisciplinary development in other fields of international law.