Law of the Sea
After nine years of negotiations, the United Nations Convention on the Law of the Sea (UNCLOS) was concluded in 1982. The Convention is an attempt to deal comprehensively with all issues relating to the use of the seas. Its 320 articles and nine annexes cover such matters as territorial sea limits, navigational rights, the legal regime for the exclusive economic zone and the continental shelf, the high seas and the legal status of resources on the seabed beyond the limits of national jurisdiction, passage of ships through narrow straits, conservation and management of living marine resources of the high seas, the protection and preservation of the marine environment, marine scientific research, the transfer of marine technology and dispute settlement procedures. The Convention entered into force in 1994. Ireland ratified the Convention on 21 June 1996.
A subsequent Agreement relating to the implementation of Part XI of the Convention concerning the international seabed area (which consists of the seabed and ocean floor, and the subsoil thereof, beyond the limits of any nation's jurisdiction) was adopted in July 1994 and entered into force in July 1996. This Agreement and Part XI of the Convention are interpreted and applied together as a single instrument.
According to the UN Division for Ocean Affairs and Law of the Sea, “[t]he practice of States has in nearly all respects been carried out in a manner consistent with the Convention, particularly after its entry into force and its rapid acceptance by the international community as the basis for all actions dealing with the oceans and the law of the sea”.
The following are some of the main features of the Convention:
The territorial sea is a belt of sea adjacent to a coastal state, the breadth of which may not exceed 12 nautical miles measured from its baselines. The normal baseline is the low water mark along the coast but, where a coastline is heavily indented or where there is a fringe of islands in its immediate vicinity, straight baselines may be drawn connecting points on land (as has been done on the west and south coasts of Ireland). States exercise sovereignty over their territorial sea and have the right to establish its breadth up to a limit of 12 nautical miles. Foreign vessels are allowed “innocent passage” through territorial seas.
All waters lying landward of the baselines are the internal waters of the state and invariably include harbour waters and estuaries. In international law the sovereignty of a costal state extends beyond its land territory and internal waters to its territorial seas.
Exclusive Economic Zone
The exclusive economic zone (EEZ) is the zone immediately adjacent and beyond the territorial seas extending to a distance of 200 nautical miles from the baselines. In the EEZ the coastal state enjoys sovereign rights over the exploitation, conservation and management of living and non-living natural resources and exercises jurisdiction over marine scientific research and for the protection of the marine environment. Ireland declared an Exclusive Economic Zone in Part 3 of the Sea Fisheries and Maritime Jurisdiction Act 2006, which was enacted on 4 April 2006. Ireland has also declared an Exclusive Fisheries Zone and a Pollution Response Zone which allow it to claim a range of rights and obligations somewhat less than those attaching to an EEZ.
Coastal states have sovereign rights over the continental shelf (the national area of the seabed) for exploring and exploiting its natural resources. The continental shelf can extend at least 200 nautical miles from the shore, and more under specified circumstances. Coastal states share with the international community part of the revenue derived from exploiting resources from any part of their shelf beyond 200 miles. All marine scientific research in the EEZ and on the continental shelf is subject to the consent of the coastal state, but in most cases they are obliged to grant consent to other states when the research is to be conducted for peaceful purposes and fulfils specified criteria.
The High Seas
All states enjoy the traditional freedoms of navigation, overflight, scientific research and fishing on the high seas, and are obliged to adopt, or cooperate with other states in adopting, measures to manage and conserve living resources.
International Seabed Area
The international seabed area (known as “the Area”) consists of the seabed and ocean floor, and the subsoil thereof, beyond the limits of any nation's jurisdiction. Part XI of UNCLOS, which deals with this topic, was significantly revised by the 1994 Agreement relating to the Implementation of Part XI of the Convention. The resources of the international seabed area (defined as “all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed, including polymetallic nodules”) are considered the common heritage of mankind, with the result that the benefits from deep-seabed mining are to be shared on an equal basis among states. All states party to the Convention are automatically members of the International Seabed Authority, an autonomous intergovernmental organisation with responsibility for administering the resources of the Area.
Settlement of Disputes
Part XV of UNCLOS provides a comprehensive system for the settlement of disputes regarding the interpretation and application of the Convention. It requires states to settle such disputes by peaceful means, as indicated in the UN Charter. However, if parties fail to reach a settlement by peaceful means of their own choice, they are obliged to resort to compulsory dispute settlement procedures.
The Convention provides four alternative means for the compulsory settlement of disputes: the International Tribunal for the Law of the Sea, the International Court of Justice, an arbitral tribunal constituted in accordance with Annex VII to the Convention, and a special arbitral tribunal constituted in accordance with Annex VIII to the Convention. States are free to choose one or more of these means by a written declaration to be made under Article 287 of the Convention and deposited with the UN Secretary-General. If the parties to a dispute have not accepted the same settlement procedure, the dispute may be submitted only to arbitration in accordance with Annex VII, unless the parties otherwise agree. Ireland has not made a declaration under Article 287.
The Law of the Sea Convention established three separate bodies designed to ensure its effective implementation: the Commission on the Limits of the Continental Shelf, the International Seabed Authority and the International Tribunal for the Law of the Sea.
Commission on the Limits of the Continental Shelf
According to UNCLOS, where the continental shelf of a coastal state extends beyond 200 nautical miles, the coastal state shall establish the outer limits of the continental shelf on the basis of the recommendation of the Commission on the Limits of the Continental Shelf.
The functions of the Commission are (i) to consider the information submitted by coastal states concerning the outer limits of the continental shelf in areas where those limits extend beyond 200 nautical miles and make appropriate recommendations and (ii) to provide scientific and technical advice, if requested by the coastal state during the preparation of such information.
The Commission meets in the spring and autumn of each year and is made up of 21 elected members who are experts in the field of geology, geophysics or hydrography. Peter Croker of the Department of Communications, Energy and Natural Resources has been elected to the Commission three times (1997, 2002 and 2007) and was elected by the members of the Commission to serve two consecutive terms as its Chairman (2002-2004 and 2004-2007).
International Seabed Authority
The International Seabed Authority was established by the 1994 Agreement relating to the Implementation of Part XI as an autonomous intergovernmental organisation made up of all states party to the Law of the Sea Convention. Its supreme organ is the Assembly, made up of all members of the Authority, which has the power to establish general policy. The executive organ of the Authority is the Council, whose 36 members are elected by the Assembly for a four year term. The election of members to the Council is carried out according to a formula designed to ensure that all geographical areas and special economic interests are represented.
Exploration and mining in the international seabed area can only be carried out under a contract issued by the Council. It is the role of the Council to ensure that exploration is conducted in accordance with the terms of the contract. Once the exploration becomes profitable, royalties must be paid to the Authority to be distributed equally, taking into account the needs of developing countries.
International Tribunal for the Law of the Sea
The International Tribunal for the Law of the Sea is a 21-member, independent judicial body with the role of adjudicating disputes arising out of the interpretation and application of the Convention. Unless the parties agree otherwise, the jurisdiction of the Tribunal is mandatory in cases relating to the prompt release of vessels and crews under Article 292 of the Convention and to provisional measures pending the constitution of an arbitral tribunal under Article 290(5). In addition, states may designate the Tribunal as their preferred venue for the settlement of disputes under Article 287. Legal disputes relating to the international seabed area are dealt with by the Seabed Disputes Chamber of the Tribunal. The Tribunal has also established a Chamber of Summary Procedure, a Chamber for Fisheries Disputes and a Chamber for Marine Environment Disputes.