Commentary - the 1982 United Nations Convention the Law of the Sea and the agreement on implementation of part XI - Law of the Sea Convention

US Department of State Dispatch, Feb, 1995

INTRODUCTION

The United Nations Convention on the Law of the Sea, opened for signature on December 10, 1982 (the Convention or LOS Convention) creates a structure for the governance and protection of all of the sea, including the airspace above and the sea-bed and subsoil below. In particular, it provides a framework for the allocation of jurisdiction, rights and duties among States that carefully balances the interests of States in controlling activities off their own coasts and the interests of all States in protecting the freedom to use ocean spaces without undue interference.

This Commentary begins with a discussion of the maritime zones recognized by the Convention, emphasizing the rules regarding navigation and overflight in these areas. Next, the framework for the protection and preservation of the marine environment of these areas is examined. Thereafter, the Commentary reviews the regimes for dealing with the resources in these areas under the following headings:

* Living marine resources, including fishing;

* Non-living resources, including those of the continental shelf and the deep sea-bed beyond the limits of national jurisdiction; and,

* Marine scientific research.

The various mechanisms for settling disputes regarding these provisions are next examined. Finally, the Commentary considers other provisions of the Convention, including those relating to maritime boundary delimitation, enclosed and semi-enclosed seas, land-locked and geographically disadvantaged States, and technology transfer, as well as the definitions and the general and final provisions of the Convention.

MARITIME ZONES

The Convention addresses the balance of coastal and maritime interests with respect to all areas of the sea. From the absolute sovereignty that every State exercises over its land territory and superjacent airspace, the exclusive rights and control that the coastal State exercises over maritime areas off its coast diminish in stages as the distance from the coastal State increases. Conversely, the rights and freedoms of maritime States are at their maximum in regard to activities on the high seas and gradually diminish closer to the coastal State. The balance of interests between the coastal State and maritime States thus varies in each zone recognized by the Convention.

The location of these zones under the Convention may be summarized as follows (and is illustrated in Figure 1).

Internal waters are landward of the baselines along the coast. They include lakes, rivers and many bays.

Archipelagic waters are encircled by archipelagic baselines established by independent archipelagic States.

The territorial sea extends seaward from the baselines to a fixed distance. The Convention establishes 12 nautical miles as the maximum permissible breadth of the territorial sea. (One nautical mile equals 1,852 meters or 6,067 feet; all further references to miles in this Commentary are to nautical miles.)

The contiguous zone, exclusive economic zone (EEZ) and continental shelf all begin at the seaward limit of the territorial sea.

The contiguous zone may extend to a maximum distance of 24 miles from the baselines.

The EEZ may extend to a maximum distance of 200 miles from the baselines.

The continental shelf may extend to a distance of 200 miles from the baselines or, if the continental margin extends beyond that limit, to the outer edge of the continental margin as defined by the Convention. The regime of the continental shelf applies to the sea-bed and subsoil and does not affect the status of the superjacent waters or airspace.

The regime of the high seas applies seaward of the EEZ; significant parts of that regime, including freedom of navigation and overflight, also apply within the EEZ.

The sea-bed beyond national jurisdiction, called the Area in the Convention, comprises the sea-bed and subsoil beyond the seaward limit of the continental shelf.

Internal Waters

Article 8(1) defines internal waters as the waters on the landward side of the baseline from which the breadth of the territorial sea is measured. This definition carries forward the traditional definition of internal waters found in article 5 of the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone, 15 UST 1606, TIAS No. 5639, 516 UNTS 205 (Territorial Sea Convention). The importance of baselines and the rules relating to them are discussed in the next section.

Territorial Sea

Article 2 describes the territorial sea as a belt of ocean which is measured seaward from the baseline of the coastal State and subject to its sovereignty. This sovereignty also extends to the airspace above and to the sea-bed and subsoil. It is exercised subject to the Convention and other rules of international law relating to innocent passage, transit passage, archipelagic sea lanes passage and protection of the marine environment. Under article 3, the coastal State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 miles, measured from baselines determined in accordance with the Convention.