(a) General Considerations
The legal framework established by the 1958 Geneva Conventions very soon came to encounter serious challenges. Several factors led to review of the Geneva Conventions, but four in particular merit highlighting.
The first factor involves control of offshore natural resources. Growing demand for an augmented supply of marine natural resources led the coastal States to extend national jurisdiction towards the high seas. At that time, some twenty coastal States had already claimed exclusive fisheries jurisdiction beyond 12 nautical miles. It was becoming apparent that the traditional dualism between the narrow territorial sea and the vast high seas was in need of serious reconsideration.
The second factor concerns the development of seabed mining technology. The technological advances made it possible to exploit the immense resources in the seabed. It seemed probable that the development of technology would encourage coastal States to extend their legal continental shelf towards the deep seabed on the basis of the exploitability test set out in Article 1 of the Convention on the Continental Shelf. Thus, a concern was voiced that eventually all seabed in the world would be divided among coastal States. While possible mining of manganese nodules in the deep seabed had attracted growing attention, only developed States possessing the necessary technology as well as financial resources could exploit natural resources in the deep seabed. However, this situation was unacceptable to developing States. Thus, there was a need to formulate a new legal framework for the proper management of natural resources in the deep seabed.
The third factor relates to the protection of the marine environment. Marine environmental protection had attracted little attention at UNCLOS I and II. Nonetheless, the attitude of the international community came to change as a result of a series of oil tanker incidents. In particular, the Torrey Canyon incident of 1967 had a profound impact on the development of treaties regulating vessel-source pollution. In light of the paucity of rules regulating marine pollution in the 1958 Geneva Conventions, it was necessary to develop new rules at the global level.
Finally, but not least, attention must be drawn to the structural changes of the international community due to the independence of former colonised regions in the 1960s. As many developing States had not gained independence at the time of UNCLOS I and II, the claims of these States had little impact on the 1958 Geneva Conventions. For newly independent States, the existing rules of the law of the sea served only the interests o developed States. It was only natural that newly independent States called for reassessment of the existing rules of the law of the sea as a whole.
Against that background, on 17 August 1967 the Maltese ambassador, Arvid Pardo, tabled a proposal for a Declaration governing the seabed and its natural resources beyond the limits of national jurisdiction. In response to his proposal, UN General Assembly Resolution 2340 (XXII) of 18 December 1967 decided to establish the Ad Hoc Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction (the Seabed Committee), consisting of thirty-five members chosen to reflect equitable geographical representation. By UN General Assembly Resolution 2467A (XXIII) of 21 December 1968, this Committee was replaced by the permanent Committee on the Peaceful Uses of the Sea-Bed and Ocean Floor beyond the Limits of National Jurisdiction.
The Committee was composed of forty-two Member States. Nonetheless, it became apparent that discussions would not be limited to mineral resources in the deep seabed. Eventually it was acknowledged that there was a great need to review the existing rules of the law of the sea as a whole because marine issues were closely interrelated. Thus, on 17 December 1970, UN General Assembly Resolution 2750C (XXV) decided to convene a conference in 1973 in order to adopt a comprehensive convention on the law of the sea.
The first session of UNCLOS III was held in New York on 3–15 December 1973, and a total of eleven sessions were convened from 1973 to 1982. Unlike at UNCLOS I and II, the preparatory work was not assigned to the ILC. The primary reason was that in light of the political sensitivity of issues underlying UNCLOS III, the ILC was regarded as inappropriate to deal with these questions. Developing States were also concerned that they were underrepresented in the ILC and that the Commission was too conservative in its approach. Accordingly, the work of the Conference was mainly conducted in three committees.
The First Committee dealt with the legal regime for the deep seabed beyond the limit of national jurisdiction. The Second Committee was charged with the territorial sea, the contiguous zone, the EEZ, the continental shelf, international straits, archipelagic waters, the high seas, and land-locked and geographically disadvantaged States. The Third Committee dealt with the protection of the marine environment, marine scientific research and the transfer of technology. Certain issues – such as the Preamble, final clauses, peaceful uses of ocean space, the general principles on dispute settlement, the general provisions and the Final Act – were discussed directly by the Plenary.
(b) Features of UNCLOS III
UNCLOS III was characterised by three principal features.
The first feature is the universality of the participants. The UNCLOS III participants comprised: the members of the UN, its specialised agencies and the International Atomic Energy Agency, parties to the Statute of the International Court of Justice, as well as Guinea-Bissau and the Democratic Republic of Vietnam. In addition, the participants in UNCLOS III included a wide range of observers, such as intergovernmental and nongovernmental organisations, trust territories, associated States, the UN Council for Namibia, and national liberation movements recognised in their region by the Organisation of African Unity or the League of Arab States. It could well be said that UNCLOS III was truly universal. This is an important element securing the legitimacy of the process of international law-making.
The second feature concerns the long duration of the Conference. In fact, it took ten years – from 1973 to 1982 – to complete the work. Taking into account the preparatory work of the Seabed Committee, which commenced its work in 1967, it took nearly sixteen years to adopt the LOSC.
The third feature is the enormous task with which the Conference was charged. The task of UNCLOS III was quantitatively enormous because it had to deal with various marine issues in a comprehensive manner. In this regard, UN General Assembly Resolution 3067 (XXVIII) of 16 November 1973 made it clear that ‘the mandate of the Conference shall be to adopt a convention dealing with all matters relating to the law of the sea’. At the same time, the task of the Conference was qualitatively enormous in the sense that it had to formulate a number of provisions reconciling highly complicated interests between States.
(c) Procedures of UNCLOS III
In light of the complexity of its tasks, UNCLOS III adopted some unique and particular procedures for negotiations. Five procedural techniques should be highlighted.
The first remarkable feature of UNCLOS III involves the consensus procedure. The consensus procedure means the method of obtaining the general agreement of all relevant actors in a conference or an organ through negotiations without vote. In light of the economic, political and social differences in the contemporary international community, the majority voting system could run the risk of producing powerful alienated minorities. It seems probable that those minorities would not feel bound by the decisions involved. Thus, in multinational negotiations, there is a need to ensure broad support for decisions despite various divisions between States. The consensus procedure seeks to make every effort to reach agreement with regard to politically sensitive issues. At UNCLOS III, the consensus procedure was indirectly mentioned in the ‘Gentlemen’s Agreement’ of the Conference as follows:
The Conference should make every effort to reach agreement on substantive matters by way of consensus and there should be no voting on such matters until all efforts at consensus have been exhausted.
The Rules of Procedure for UNCLOS III made no explicit reference to the consensus procedure. However, paragraph 1 of Rule 37 stated: ‘Before a matter of substance is put to the vote, a determination that all efforts at reaching general agreement have been exhausted shall be made’ by the two-thirds majority specified in Rule 39(1).
On the one hand, consensus is a valuable procedure in order to secure the widest possible acceptance of a convention. On the other hand, a text adopted by consensus is likely to be obscure because of the need for compromise. Furthermore, the consensus procedure is inherently slow-moving. There is also a concern that consensus may mask opposition and create subsequent opposition or non-participation. In addition, it may be noted that a successful consensus procedure relies on the personal ability of the chairperson because the chairperson is required to take on effective leadership for formulating a consensus by facilitating compromises and, if necessary, generating proposals.
The second procedural technique used at UNCLOS III is the ‘package-deal’ approach. This is a comprehensive approach by which all key issues are addressed, with reasonable give and take between interested parties and interested groups. Under the packagedeal approach, the final treaty is to be accepted in its entirety. On the one hand, it is thus arguable that this approach contributed to the adoption of a comprehensive convention, i.e. the LOSC. On the other hand, it is undeniable that the package-deal approach has complicated the decision-making process at UNCLOS III owing to tradeoff tactics by certain States. Furthermore, the pace of the Committees II and III was qualified by the slow progress of Committee I. Arguably, the package-deal approach seems best suited to a conference where the work among committees will progress at roughly the same pace. If this is not the case, the approach may entail slow progress in
The third notable feature is that discussions took place in a wide variety of delegation groups with common interests. One may call this the group approach. The Conference realised at an early stage that working groups would be more efficient than plenary meetings owing to the large number of participants and sensitive issues involved. Consequently, negotiations were to a large extent carried out in smaller working or negotiating groups on the basis of interest in a particular issue. Examples include: the group of seventy seven consisting of developing countries, the coastal States group, the group of archipelagic States, the Oceania group, and the land-locked and geographically disadvantaged States group, the territorialist group, the group of broad-shelf States, the straits States group and the group of maritime States. In particular, the influence of the group of seventy-seven seemed to be strong, especially in the First Committee as well as in the Second Committee relating particularly to the EEZ. This situation contrasted with UNCLOS I and II where the participation of developing States was limited.
Fourth, at UNCLOS III, most substantive meetings were informal and without summary records. As a consequence, there is little in the way of formal records of debates and amendments by delegations at UNCLOS III. Some of the most intractable issues of the Conference were resolved in privately convened negotiating groups, such as the Evensen group and the Castañeda group. It could be said that unofficial negotiations or informality was one of the unique features of UNCLOS III.
Finally, the single text approach should be noted. It has been considered that the only way for the Conference to extricate itself from the proliferation of individual proposals was to formulate a Single Negotiating Treaty Text as the basis for discussion. Therefore, the President of the Conference recommended that the Chairmen of the three Committees should each prepare a single negotiating text concerning the subjects entrusted to their Committee. Arguably, this was an important procedural innovation.
(d) Adoption of the LOSC
After several revisions of the Texts, the Draft Convention on the Law of the Sea was adopted at the resumed tenth session on 28 August 1981. At the eleventh session, a number of changes and amendments were made to the final text of the Convention in order to accommodate the concerns of the United States. Nevertheless, the United States did not support the adoption of the Convention by consensus or without a vote, requesting a recorded vote. Consequently, the consensus procedure was abandoned in the final stage of UNCLOS III. The LOSC was finally adopted on 30 April 1982 by 130 in favour, 4 against, with 18 abstentions and 18 unrecorded. The Convention was opened for signature on
10 December 1982.
The voting record demonstrated that practically all developing countries voted for the Convention. Moreover, Australia, Austria, Canada, France, Greece, Ireland, Japan, Portugal, Switzerland and the five Nordic States voted for the Convention. On the other hand, four States, that is to say, the United States, Israel, Turkey and Venezuela, voted against the Convention. Israel objected to observer status for the Palestine Liberation Organization (PLO). Turkey and Venezuela preferred to resolve maritime boundary disputes with their neighbours before accepting the Convention. The United States voted against the LOSC mainly because the deep seabed regime provided for in Part XI did not meet US objectives.
For a similar reason, many Western European countries abstained. Eastern European countries abstained because they were miffed by a technical provision in the Conference resolution on protection of preparatory investments in seabed mining. They felt that this discriminated in favour of US companies. In any case, it is clear that the adoption of the LOSC marked the beginning of a new era in the international law of the sea.
source: international law of the sea, Tanaka