1.0 International Treaties, Conventions, Protocols, Rules, Legislations and Regulations and Law of the Sea 1982 (UNCLOS)
1.0 International Treaties, Conventions, Protocols, Rules, Legislations and Regulations and Law of the Sea 1982 (UNCLOS)
Learning objectives: After reading this topic, you will be able to
- Understand international treaties, conventions and protocols.
- Understand law of the sea and zones of jurisdiction in sea.
Introduction : This section provides detail of international conventions/protocols/amendments/recommendations & guidelines/resolutions with respect to UNCLOS.
United Nations Organisation has been formed where in all the countries are members to manage the affairs, implement international agreements and manage them effectively. UN has got many organisations to manage, Trade, Health, Education etc.
“Treaty” means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation;
A State may also sign a treaty "subject to ratification, acceptance or approval". In such a situation, signature does not signify the consent of a State to be bound by the treaty, although it does oblige the State to refrain from acts which would defeat the object and purpose of the treaty until such time as it has
A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when:
It has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or
It has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.
To manage the maritime activities around the globe, International Maritime Organisation (IMO) has been formed. IMO – the International Maritime Organization – is the United Nations specialized agency with responsibility for the safety and security of shipping and the prevention of marine and atmospheric pollution by ships, having its head quarters in London has 174 member countries.
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Some understanding of the following important instruments used by UN will be useful:
- Conventions
- Protocols
- Amendments
- Recommendations and guidelines
- Resolutions
Conventions: the other name for the Treaty is a written agreement between UN and the other countries. The convention process normally starts after an incident happens. The convention in a draft form can be proposed and introduced by a Member state or by group of member states. The UN Secretariat will study the feasibility of proposal, circulate among the members and put on vote on a notified day. If successful in voting, the convention is adopted. Please note that the convention is not a law in itself. A convention becomes a law when it is implemented in a country’s own legal system meaning that only after every member country will have to make it as a law in their country, which takes a long time for the convention to come into effect.
Each member state must accept the details mentioned in conventions put forth by the UN abides by the rules and regulations put forth by the UN and agree to international supervision required under such conventions. Signature, ratification, acceptance, approval and accession are different ways in which a member country can give their consent to be bound by the convention.
Some conventions may take many years to come into force as drafting, changes, approval, acceptance and implementing takes time making a new convention a tedious and time consuming process. Hence it is better to amend the existing convention instead of introducing a new convention each time for the same or similar purpose.
Protocols: If there are some changes required to the Convention which has been adopted but not yet come into force, it is normally done by introducing a Protocol indicating changes to conventions. It is normally happens when a country is trying make the convention as a law in their country, get into some legal issues and request for some changes in the Convention.
A protocol is one of the ways in which a convention can be modified. When a major amendment is to be incorporated on regulations of the convention, a protocol is called among the countries, who are signatory of the original convention when it was signed and approved. E.g. for MARPOL 73/78, the year 1973 in which the act was passed was the convention and in 1978 what was passed was the protocol.
A protocol is used for the modification of an IMO convention when
- There is a significant change to the original convention
- When a new chapter is added to the original convention. For example, when MARPOL Annex VI was added to the MARPOL 73/78 Convention.
- When a change is applicable to the all the chapters
- When IMO feels, the change need to be brought by the protocol
The amendments by protocols are not binding on all the states that have ratified the original convention. The amendments by the protocols are only binding to the states that ratify the new protocol.
Amendments: If some or all clauses of the convention are modified by the introduction of Protocol is and Amendment or we can simply state that Amendments are the reforms that are needed in a convention backed by the protocols.
Recommendations and guidelines: is a document linked to a convention, which is yet to be accepted, hence not a legally accepted / binding one for all the member states. Normally the member country(s) brought in the 'Recommendations and guidelines' has /have made it as a law in their country(s)
Resolutions: Resolutions are the finalized documents on any convention based on the recommendation or amendment and are accepted or passed by the required number of member countries
Please Note that for a resolution to come into effect, after one or more member countries, propose the resolution
- The Organization needs to review the resolution proposal
- Resolution need to be adopted by the required numbers of member countries and finally
- Resolution needs the acceptance by the member governments
- Then resolution enters into force after a fixed acceptance time.
UNCLOS: The Law of the Sea Convention defines the rights and responsibilities of nations with respect to their use of the world's oceans, establishing guidelines for businesses, the environment, and the management of marine natural resources
After the Second World War, the US first proclaimed its continental shelf in 1945 and later proclaimed to conserve fisheries. Many countries followed that and started claiming territorial sovereignty in the sea as far out as they wanted. That required an immediate action by appraisal of the international law of the sea.
Numerous articles were prepared and circulated among the UN Member States between 1959 and 1961 by the International Law Commission. Eventually, the UNCLOS, later to be known as UNCLOS-I was adopted in a conference held in Geneva in 1958 where four treaties were debated and adopted. UNCLOS-I was not ratified by most countries.
The delay in ratification of UNCLOS-I led to the adoption of UNCLOS-II convened in 1960. The UNCLOS-II was still not satisfactorily addressing certain issues of the UNCLOS-I especially defining the width territorial seas.
A number of countries were becoming independent states when decolonization increased and those states joined the UN without having to accept the regimes of UNCLOS.
The possibility arose where a larger and more powerful State could manipulate the UNCLOS and take unfair commercial advantage over the smaller states in untapped deep-sea resources.
The above mentioned arguments led to the adoption of UNCLOS –III in 1974. 117 States had signed the convention by the end of 1982 and it was finally concluded formally.
UNCLOS The United Nations Convention on the Law of the Sea (UNCLOS) also called the Law of the Sea Convention or the Law of the Sea treaty (1982)
UNCLOS has come into force internationally on 16th November 1994. However some countries including India have not yet enacted it in a national legislation.
UNCLOS has divided the various areas of the world's seas into Zones of Jurisdiction.
- Internal waters
- Territorial Waters
- Archipelagic waters
- Contiguous zones
- Fisheries limits
- Continental Shelf
- Exclusive Economic Zone
- High Seas
UNCLOS decides the coastal state jurisdiction in the waters mentioned above. None of the above zones are obligatory and each coastal state has options to adopt them or not, subject to a maximum limit.
The coastal state cannot impose its sovereignty in most of the zones, as it has limited rights.
A ship master must never assume that his vessel is inside or outside a particular zone. For details please consult Annual Notices to Mariners No. 12 (National Claim to Maritime Jurisdiction).
Countries have their boundaries clearly marked over land but it is not the case with the sea areas along their coasts. Countries have always wanted to hold control over their coastal waters. There has been a difficulty in deciding how far out into the sea a country should be able to exercise this right.
