30 years of the ‘Sea Constitution’

30 years of the ‘Sea Constitution’
By Michael Kabai
On 10 December 1982 the United Nations Convention on the Law of the Sea (the convention) was opened for signature by states at Montego Bay in Jamaica. There is no doubt that the convention made history when it was adopted, and today it is the globally recognised regime dealing with all matters relating to the law of the sea and is regarded as a ‘constitution for the oceans and seas’. The convention was open for signature for a two-year period, at the end of which 159 states had signed the instrument. To date, 162 countries and the European Community have ratified the convention.
After the 16th ratification of the convention by Guyana on 16 November 1993, it entered into force on 16 November 1994, as required by art 308 of the convention. The convention has 320 articles and nine annexes governing all aspects of ocean space, such as delimitation, environmental control, marine scientific research, economic and commercial activities, transfer of technology and the settlement of disputes relating to ocean matters. South Africa became a state party to the convention on 23 December 1997 and the convention entered into force for South Africa on 22 January 1998. South Africa is also a state party to both the 1994 agreement relating to the implementation of part XI of the convention and the 1995 agreement relating to the conservation and management of straddling fish stocks and highly migratory fish stocks.

World Oceans Day
In 2008 the United Nations General Assembly decided that, as from 2009, 8 June would be designated by the United Nations as ‘World Oceans Day’ (resolution 63/111, para 171). This was in recognition of the fact that the oceans are essential to food security and the health and survival of all life and are a critical part of the biosphere (www.un.org/Depts/los/reference_files/worldoceansday.htm, accessed 1-9-2012).
On 8 June 2012 World Oceans Day was celebrated at the United Nations headquarters with a panel discussion to commemorate the 30th anniversary of the opening for signature of the convention. United Nations Secretary-General Ban Ki-Moon urged countries to boost their efforts to protect the world’s oceans, which are threatened by overfishing, pollution and climate change. He further pointed out that lessons needed to be learnt from three decades of experience with the convention, which should continue to be a guide in establishing the rule of law in respect of the world’s oceans and seas. He also underscored the important role that the convention plays in the maintenance of peace, justice and progress (www.un.org/News/Press/docs/2012/sgsm14340.doc.htm, accessed 13-9-2012).
The convention created new concepts, such as the exclusive economic zone and the limitation of the continental shelf beyond 200 nautical miles. It also gave more clarity to certain disputed issues, including the breadth of the territorial sea and limits of the continental shelf. These and other elements in the convention are today, to a large degree, considered to be customary international law. Unfortunately, disputes between countries remain, for example in relation to the breadth of the territorial sea and transit passage (eg, between Canada and the United States regarding the Northwest Passage route through the Arctic Ocean).
The convention also established new bodies, such as the International Tribunal for the Law of the Sea (the tribunal), the International Seabed Authority (the authority) and the Commission on the Limits of the Continental Shelf (the commission).

The tribunal
The tribunal is based in Hamburg, Germany and its functions are complementary to other relevant forums, but in respect of the law of the sea. The tribunal has 21 independent judges ‘elected from among persons enjoying the highest reputation for fairness and integrity and of recognised competence in the field of the law of the sea’ (‘International Tribunal for the Law of the Sea’, May 2011, www.itlos.org/fileadmin/itlos/documents/brochure/ITLOS_Brochure_english.pdf, accessed 1-9-2012). The tribunal has jurisdiction over any dispute concerning the interpretation or application of the convention and over all matters specifically provided for in any other agreement that confers jurisdiction on the tribunal (art 21 of the Statute of the International Tribunal for the Law of the Sea (the statute)).
The tribunal is open to states parties to the convention, as well as to states or intergovernmental organisations that are not parties to the convention and to state enterprises and private entities ‘in any case expressly provided for in part XI or in any case submitted pursuant to any other agreement conferring jurisdiction on the tribunal which is accepted by all the parties to that case’ (art 20 of the statute).
South Africa has one judge at the tribunal, Judge Albert Hoffman, who is vice-president of the tribunal. Recently, the tribunal dealt with the following cases: Advisory Opinion: Responsibility and obligations of states sponsoring persons and entities with respect to activities in the area (Seabed Disputes Chamber of the International Tribunal for the Law of the Sea) (unreported case no 17, 1-2-2011) (Treves); Dispute concerning delimitation of the maritime boundry between Bangladesh and Myanmar in the Bay of Bengal (International Tribunal for the Law of the Sea) (unreported case no 16, 14-3-2012) (Jesus); and M/V Louisa (Saint Vincent and the Grenadines v Kingdom of Spain) (International Tribunal for the Law of the Sea) (unreported case no 18) (judgment in the case is still awaited) (www.itlos.org/index.php?id=35, accessed 1-9-2012).

The authority
The authority is based in Kingston, Jamaica and started operating as an independent international organisation in June 1996. The authority is established under the convention and the 1994 agreement relating to the implementation of part XI of the convention.
In terms of part XI and the agreement, it is mandated to organise and control activities in the area (the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction), with a view to administering the resources of the area (www.isa.org.jm/en/node/745, accessed 1-9-2012).
Recently, the authority received five new applications for seabed exploration licences. These new applications were filed in respect of areas located in the Indian, the Atlantic and the Pacific Oceans. Two of the applications were for exploration for polymetallic sulphides and three were for polymetallic nodules (www.isa.org.jm/en/node/745, accessed 7-9-2012).

The commission
In accordance with the provisions of art 2 of annex II to the convention, ‘the commission shall consist of 21 members who shall be experts in the field of geology, geophysics or hydrography, elected by states parties to the convention from among their nationals, having due regard to the need to ensure equitable geographical representation, who shall serve in their personal capacities’. The functions of the commission are stipulated in art 76 of the convention. At the time of going to print, the commission had received 61 submissions and had made 18 recommendations (www.un.org/Depts/los/clcs_new/commission_submissions.htm, accessed 1-9-2012). On 5 May 2009, in accordance with art 76(8), South Africa submitted information to the commission on the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured in respect of the mainland of the territory of the Republic of South Africa (www.un.org/Depts/los/clcs_new/submissions_files/submission_zaf_31_2009.htm, accessed 1-9-2012). The consideration of the partial submission made by South Africa was included in the provisional agenda of the 24th session of the commission held in New York in 2009. After consideration of the submission, the commission made recommendations pursuant to art 76 of the convention. In its preparation for final submission, South Africa is required to identify and address potential issues affecting its neighbours like Namibia, Mozambique and France (in relation to the islands of Marion and Prince Edward and the French Crozet Archipelago) that might have an impact on the final submission. Failure to address these issues might lead to a dispute, which parties are obliged to address by entering into negotiations concerning the delimitation of bilateral maritime boundaries (art 76 of the convention read with annex II).

Conclusion
The convention has been in force for almost 18 years and remains dynamic in the fields of international law and maritime law. As new uses of ocean space emerge, the convention retains its relevance. However, in order to continue to fulfil its role, the convention must continue to be fully implemented and gain wider recognition internationally. Countries that have not yet ratified the convention, like the United States and Turkey, are encouraged to do so at the earliest opportunity.
Michael Kabai LLB (University of Limpopo) LLM (Unisa) is a state law adviser (International Law) in the Office of the Chief State Law Adviser (International Law) in the Department of International Relations and Cooperation. His views do not necessarily reflect those of the Department of International Relations and Cooperation or the government.