Saturday, September 24, 2022

UNCLOS values remain fresh 40 years after coming into force

 The final document of the UN Convention on the Law of the Sea (UNCLOS) was adopted on April 30, 1982, after nine years of negotiations, and was opened for signature on December 10, 1982.

Signed in 1982 and then enforced in 1994, the convention is considered the ‘Constitution of the Oceans’ as it serves as the legal framework governing all activities at sea and is the only legal basis comprehensively defining the scope of the maritime entitlements of nations. To date, the Convention has been ratified by 167 countries and the EU.
Vietnam, together with 107 countries and territories globally, signed the document on December 10, 1982. The National Assembly of Vietnam then issued a resolution on the ratification of the document on June 23, 1994. Eighteen years later the Vietnam Maritime Law was promulgated on the basis of the provisions of UNCLOS and international law.
‘The Constitution of the Oceans’
For the first time, UNCLOS clearly defines all oceanic spaces on Earth, all living and non-living natural resources, as well as all marine utilities on an equitable basis in an attempt to protect the legitimate interests of small and developing countries.
Most notably, the document fully clarifies seven sea areas, from internal waters, territorial sea, contiguous zone, exclusive economic zone, continental shelf, high seas, and the seabed. On this basis, coastal states have a full legal basis to be able to establish and protect their rights and obligations at sea.
UNCLOS serves to create legal and institutional frameworks for the management of sea and ocean related activities. On the basis of the principle that ‘the land dominates the sea’, the Convention allows coastal states to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, as measured from baselines. In this area, countries are able to enforce their own laws on customs, tax, immigration, and environmental protection, among other things.
Furthermore, the exclusive economic zone (EEZ) extends to 200 nautical miles from the baseline, from which the breadth of the territorial sea is measured. Within the exclusive economic zone, countries are able to enjoy exclusive rights to natural resources. To a certain extent, this legal framework serves as a reference for states when they make maritime claims.
Laos, despite being a landlocked country, has also ratified the UNCLOS because “it not only grants coastal states access to economic opportunities, but also allows landlocked countries to access the sea and freely navigate the seas,” according to Ambassador Mai Sayavongs of the Institute of Foreign Affairs under the Ministry of Foreign Affairs of Laos.
Furthermore, UNCLOS also creates legal frameworks for the use of marine resources, as well as for sustainable and effective socio-economic development, while simultaneously ensuring the preservation of the marine environment. This is in line with the UN Sustainable Development Goals, especially Goal 14 on “Marine Life” conservation.
“Serving as a constitution, UNCLOS defines a legal order, the rights and obligations of not only coastal but also landlocked states and those with special geographical circumstances. Based on the document, countries have had a complete basis for sustainable management of the sea as well as for peaceful settlement of disputes in order to bring common prosperity to all countries,” states Dr. Nguyen Thi Lan Anh, acting director of the East Sea Institute under the Diplomatic Academy of Vietnam.
Most important achievement of international law
UNCLOS is widely considered to be one of the most important achievements of international law and the UN of the 20th century as it serves as the basis for the formation and protection of the legal order at sea in a comprehensive manner.
It can be assessed that UNCLOS is the most complete and comprehensive document which creates a legal order at sea, unlike previously when countries were able to extend their waters without limits. It identifies seas belonging to national sovereignty, national jurisdiction, and the whole of humanity, and it is apparently a great contribution of the legal document.
The Convention also lays down rules for activities at sea as a whole, contributing to shaping a legal regime at sea. Assoc. Prof. & Dr. Ambassador Nguyen Hong Thao affirms, “The value of UNCLOS is great as it is the first convention with a binding dispute settlement mechanism when countries that have joined UNCLOS have the right to choose one of four forms of settlement if there is a dispute.”
States can also choose either the International Tribunal for the Law of the Sea (ITLOS), the International Court of Justice (ICJ), or arbitrators according to Annex VII and Annex VIII of the Convention, in order to settle a dispute. Arbitrators are requested to resolve disputes between parties, as was the case back in 2013 between the Philippines and China.
Rudiger Wolfrum, former president of the International Tribunal for the Law of the Sea, has said UNCLOS plays a fundamental role in terms of the development of international law of the sea as it helps to promote peace, security, and co-operation among states, as well as sustainable development of seas and oceans globally.
Amid increasing challenges at sea, the international community is required to uphold the rule of law and fully comply in good faith with legal obligations under the Convention, especially in terms of making claims and conducting operations at sea. States should therefore strive to promote co-operation at international and regional levels for the conservation and sustainable use of seas and oceans, while ensuring that freedom of navigation and lawful navigational activities continue.
“Over the past 40 years UNCLOS has created universal values. Many provisions of UNCLOS that have come into practice are applied as customary international law and are generally legally binding on states regardless of their membership status. States, whether large or small, with development potential or not, share an equal obligation to implement the universal values of UNCLOS in order to contribute to the general peace and stability of the marine environment and the world,” emphasises Dr. Lan Anh.
UNCLOS values remain fresh
All countries agree that UNCLOS is the “Constitution of the Ocean” which has been observed for 40 years. No one had expressed any need to revise the document until the Philippines filed a lawsuit against China in the South China Sea, known as the East Sea in Vietnam, in 2013. In doing so, some arguments were raised that UNCLOS does not provide a comprehensive legal framework for the oceans, or that UNCLOS should be developed and improved, and that UNCLOS is vague and incomplete.
Ambassador Nguyen Hong Thao, a member of the UN International Law Commission (ILC) for the 2017 to 2021 and 2023 to 2027 tenures, stresses that, “UNCLOS is the constitution of the ocean. As the constitution, it sets out the principles and basic issues, as opposed to going into details. It is not advisable to ask for a constitutional amendment because of a specific issue. When there are major problems, countries will meet and discuss to address issues on the basis of the Convention.”
He continues by saying, “UNCLOS, like other international conventions, is based on the agreement and concessions made by the states, so there may be provisions that are not clear. That depends on the interpretation and application of international law. We do not say who misinterpret the matter, but this is a cognitive process. These also cannot be called loopholes, because UNCLOS is the Constitution of the Oceans.”
In fact, several additional agreements have been introduced in order to enforce UNCLLOS, including an agreement relating to the implementation of Part XI of the document and the 1995 UN Fish Stocks Agreement. These agreements have been adopted as a means of further developing issues as opposed to changing UNCLOS.
Currently, negotiations are underway to form an agreement regarding the conservation of biodiversity in the seas beyond national jurisdiction. Only a few countries hold that the management and conservation of marine biodiversity of areas beyond national jurisdiction (BBNJ) be a change.
According to Dr. Lan Anh, it is inevitable that some of UNCLOS regulations are not strict enough due to the intertwined interests of groups of countries and compromises are required to achieve a complete convention. However, the reality of the past 40 years has proved that UNCLOS is not outdated and still remains a legal framework which provides a foundation for countries to develop.
As time flies, there will also be fresh challenges to the seas and oceans that UNCLOS have yet to adjust to, such as those related to climate change, sea level rise, or the disposal of waste, especially plastics, at sea. Countries will therefore continue to meet and discuss to address all the new issues arising in a constructive manner.



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