The United Nations Convention on the Law of the Sea (UNCLOS) is a comprehensive UN legal policy document demarcating areas of the sea under the jurisdiction of member states as well as legal clauses for human maritime activity in a comprehensive manner.
The UNCLOS aims to demarcate and scrutinize the legal ramifications in the fullest possible scope of different jurisdictional and geographical areas of the sea as well as for human maritime activity.
The sections for maritime zones that were defined in the UNCLOS include the exclusive economic zone (EEZ), the territorial sea, the contiguous zone, the continental shelf, archipelagic waters, the international sea-bed areas and the high seas.
The sections for maritime activities are numerous and intricate, and some examples include clauses for shipping routes, marine conservation, resource exploitation, and for scientific research.
Formulation of the UNCLOS
The UNCLOS replaces the earlier concept of areas of the sea belonging to states coupled with international waters and developed due to conflicts between states over areas of the sea. The area of the coastal sea that states could control through history had generally been that area that states could control through its navy. Thus the areas extending over a 3 mile area from the coasts of nations over time came to represent the areas of coastal sea that states could administer.
The areas of the sea not coming under the jurisdiction of states i.e. international waters, later would form various sub-categories under the UNCLOS. These areas that since the 18th Century were generally understood as territories of the sea legally belonging to states were very troublesome, especially in case of overlapping of territories or encroachment and detention. The ambiguities created during the Second World War led to an international churning for the UN’s International Law Commission to establish a proper codification system for these disputes over the world’s oceans.
The UN’s International Law Commission began working on this issue and prepared the 4 draft conventions by 1949. Between February 24 and April 29, 1958, international negotiations and meetings ensued for the first UN Conference on the Law of the Sea – UNCLOS I. The basic form of the 4 draft conventions were adopted in UNCLOS I, and these are known as the 1958 Geneva Conventions. However, the limits established by this round of meetings did not prove adequate, although it established certain outlines of the sections that the UNCLOS would address.
The UNCLOS II held in 1960 led to similar disagreements over the finer contents of the draft, especially over the breadth of the territorial seas and over rights concerning fishing activities. The third conference held between 1973 to 1982 – UNCLOS III – would prove to the final such conference, and was finally passed on November 14, 1994 including the participation of 160 states (GRID-Arendal, 2014).
A Brief Overview of the UNCLOS in Practice
The UNCLOS may be comprehensive in defining the scope of human intervention over the seas, but as a legal instrument it is at the most a framework convention that works in conjunction with national laws, international treaties, organizations and other conventions (S.O. Williams, 2014). However, the advantage offered by the UNCLOS is the comprehensive enumeration of maritime zones and the rules for operations wherein – a combination that is the first of its kind. The UNCLOS also offers legal instruments for assessing and responding to maritime threats many of which were previously not clearly defined.
However, since the UNCLOS is subject to the behaviour of individual states, many a time its rules have been flouted in a global system that tends to favour the United States in terms of international law, geopolitics, etc. An example is China’s behaviour in the South China Sea. China claims historical rights over about 90 per cent of the waters of the South China Sea, which became an issue since the Philippines challenged this with a lawsuit under international law.
China on its part refused to acknowledge a ruling by an international tribunal under the UNCLOS to cede its claim. This dispute was accompanied with Chinese military activities in the South China Sea that faced global opposition led by the United States, which is usually the chief arbiter of international dispute resolution.
This is also curious due to the fact that the United States has military bases in numerous locations all over the world close to marine habitats, giving it rapid access to geopolitical zones in international waters worldwide. Resistance by many states to UNCLOS clauses comes with a need to assert their autonomy in a global regime led by the US and its allies, other than geopolitical considerations towards other member states.
India’s position in this particular dispute has been one of diplomatic negotiations over the lawful and peaceful negotiation of the dispute under the UNCLOS. India follows much of the rest of the world in that the UNCLOS is a widely accepted legal document in state practice all over the world, such that many observers point towards the UNCLOS being a proxy customary international maritime law. The Act places between 2.2 to 2.8 million square km of sea under India’s jurisdiction, the boundaries are not clearly demarcated, such as the critical one between Indian and Pakistani waters, that includes the Sir Creek area.
India has a special need for the UNCLOS, as the medium of transit for 90 per cent of India’s trade is through the seas and oceans. Also 65 per cent of the known oil reserves globally are located in the Indian Ocean region, with 40 per cent of global offshore reserves with countries having coasts by the Indian Ocean (P.A. Jayan, 2013). An international legal regime becomes even more important thus given the piracy and business practices involved in these regions. The Indian Express (2017) reports that the year 2011 alone witnessed 237 attacks by pirates in the Indian Ocean region, making international legal co-operation even more necessary.
Although the UNCLOS for India is a very valuable document to protect trade and resource exploitation in the region, it can also provide an effective legal framework to protect marine species and environments from anthropogenic activities.
Part XII of the UNCLOS is titled ‘Protection and Preservation of the Marine Environment’ which obliges states to protect the environment, along with comprehensive clauses throughout the agreement for the protection of marine life.
Given India’s diminishing fishing stock and commercial poaching and illegal trade in marine goods that have for example wiped out large populations of species such as sea cucumbers and sea horses off India’s coasts, India must utilize the treaty for environmentally sustainable use of its areas specified under the UNCLOS as well, and not subject the Convention merely to utilitarian use.
The Convention represents a great opportunity for India to co-operate internationally on conservation matters on a legal basis, and thereby achieving sustainable use of the surrounding seas can potentially reap great benefits.
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The United Nations has shaped so much of global co-operation and regulation that we wouldn’t recognise our world today without the UN’s pervasive role in it. So many small details of our lives – such as postage and copyright laws – are subject to international co-operation nurtured by the UN.
In its 75th year, however, the UN is in a difficult moment as the world faces climate crisis, a global pandemic, great power competition, trade wars, economic depression and a wider breakdown in international co-operation.
Still, the UN has faced tough times before – over many decades during the Cold War, the Security Council was crippled by deep tensions between the US and the Soviet Union. The UN is not as sidelined or divided today as it was then. However, as the relationship between China and the US sours, the achievements of global co-operation are being eroded.
The way in which people speak about the UN often implies a level of coherence and bureaucratic independence that the UN rarely possesses. A failure of the UN is normally better understood as a failure of international co-operation.
We see this recently in the UN’s inability to deal with crises from the ethnic cleansing of the Rohingya Muslims in Myanmar, to civil conflict in Syria, and the failure of the Security Council to adopt a COVID-19 resolution calling for ceasefires in conflict zones and a co-operative international response to the pandemic.
The UN administration is not primarily to blame for these failures; rather, the problem is the great powers – in the case of COVID-19, China and the US – refusing to co-operate.
Where states fail to agree, the UN is powerless to act.
Marking the 75th anniversary of the official formation of the UN, when 50 founding nations signed the UN Charter on June 26, 1945, we look at some of its key triumphs and resounding failures.
Five successes
1. Peacekeeping
The United Nations was created with the goal of being a collective security organisation. The UN Charter establishes that the use of force is only lawful either in self-defence or if authorised by the UN Security Council. The Security Council’s five permanent members, being China, US, UK, Russia and France, can veto any such resolution.
The UN’s consistent role in seeking to manage conflict is one of its greatest successes.
A key component of this role is peacekeeping. The UN under its second secretary-general, the Swedish statesman Dag Hammarskjöld – who was posthumously awarded the Nobel Peace prize after he died in a suspicious plane crash – created the concept of peacekeeping. Hammarskjöld was responding to the 1956 Suez Crisis, in which the US opposed the invasion of Egypt by its allies Israel, France and the UK.
UN peacekeeping missions involve the use of impartial and armed UN forces, drawn from member states, to stabilise fragile situations. “The essence of peacekeeping is the use of soldiers as a catalyst for peace rather than as the instruments of war,” said then UN Secretary-General Javier Pérez de Cuéllar, when the forces won the 1988 Nobel Peace Prize following missions in conflict zones in the Middle East, Africa, Asia, Central America and Europe.
However, peacekeeping also counts among the UN’s major failures.
2. Law of the Sea
Negotiated between 1973 and 1982, the UN Convention on the Law of the Sea (UNCLOS) set up the current international law of the seas. It defines states’ rights and creates concepts such as exclusive economic zones, as well as procedures for the settling of disputes, new arrangements for governing deep sea bed mining, and importantly, new provisions for the protection of marine resources and ocean conservation.
Mostly, countries have abided by the convention. There are various disputes that China has over the East and South China Seas which present a conflict between power and law, in that although UNCLOS creates mechanisms for resolving disputes, a powerful state isn’t necessarily going to submit to those mechanisms.
Secondly, on the conservation front, although UNCLOS is a huge step forward, it has failed to adequately protect oceans that are outside any state’s control. Ocean ecosystems have been dramatically transformed through overfishing. This is an ecological catastrophe that UNCLOS has slowed, but failed to address comprehensively.
3. Decolonisation
The idea of racial equality and of a people’s right to self-determination was discussed in the wake of World War I and rejected. After World War II, however, those principles were endorsed within the UN system, and the Trusteeship Council, which monitored the process of decolonisation, was one of the initial bodies of the UN.
Although many national independence movements only won liberation through bloody conflicts, the UN has overseen a process of decolonisation that has transformed international politics. In 1945, around one third of the world’s population lived under colonial rule. Today, there are less than 2 million people living in colonies.
When it comes to the world’s First Nations, however, the UN generally has done little to address their concerns, aside from the non-binding UN Declaration on the Rights of Indigenous Peoples of 2007.
4. Human rights
The Human Rights Declaration of 1948 for the first time set out fundamental human rights to be universally protected, recognising that the “inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”.
Since 1948, 10 human rights treaties have been adopted – including conventions on the rights of children and migrant workers, and against torture and discrimination based on gender and race – each monitored by its own committee of independent experts.
The language of human rights has created a new framework for thinking about the relationship between the individual, the state and the international system. Although some people would prefer that political movements focus on ‘liberation’ rather than ‘rights’, the idea of human rights has made the individual person a focus of national and international attention.
5. Free trade
Depending on your politics, you might view the World Trade Organisation as a huge success, or a huge failure.
The WTO creates a near-binding system of international trade law with a clear and efficient dispute resolution process.
The majority Australian consensus is that the WTO is a success because it has been good for Australian famers especially, through its winding back of subsidies and tariffs.
However, the WTO enabled an era of globalisation which is now politically controversial.
Recently, the US has sought to disrupt the system. In addition to the trade war with China, the Trump Administration has also refused to appoint tribunal members to the WTO’s Appellate Body, so it has crippled the dispute resolution process. Of course, the Trump Administration is not the first to take issue with China’s trade strategies, which include subsidises for ‘State Owned Enterprises’ and demands that foreign firms transfer intellectual property in exchange for market access.
The existence of the UN has created a forum where nations can discuss new problems, and climate change is one of them. The Intergovernmental Panel on Climate Change (IPCC) was set up in 1988 to assess climate science and provide policymakers with assessments and options. In 1992, the UN Framework Convention on Climate Change created a permanent forum for negotiations.
However, despite an international scientific body in the IPCC, and 165 signatory nations to the climate treaty, global greenhouse gas emissions have continued to increase.
Under the Paris Agreement, even if every country meets its greenhouse gas emission targets we are still on track for ‘dangerous warming’. Yet, no major country is even on track to meet its targets; while emissions will probably decline this year as a result of COVID-19, atmospheric concentrations of greenhouse gases will still increase.
This illustrates a core conundrum of the UN in that it opens the possibility of global cooperation, but is unable to constrain states from pursuing their narrowly conceived self-interests. Deep co-operation remains challenging.
Five failures of the UN
1. Peacekeeping
During the Bosnian War, Dutch peacekeeping forces stationed in the town of Srebrenica, declared a ‘safe area’ by the UN in 1993, failed in 1995 to stop the massacre of more than 8000 Muslim men and boys by Bosnian Serb forces. This is one of the most widely discussed examples of the failures of international peacekeeping operations.
On the massacre’s 10th anniversary, then UN Secretary General Kofi Annan wrote that the UN had “made serious errors of judgement, rooted in a philosophy of impartiality”, contributing to a mass murder that would “haunt our history forever”.
If you look at some of the other infamous failures of peacekeeping missions – in places such as Rwanda, Somalia and Angola – it is the limited powers given to peacekeeping operations that have resulted in those failures.
2. The invasion of Iraq
The invasion of Iraq by the US in 2003, which was unlawful and without Security Council authorisation, reflects the fact that the UN is has very limited capacity to constrain the actions of great powers.
The Security Council designers created the veto power so that any of the five permanent members could reject a Council resolution, so in that way it is programmed to fail when a great power really wants to do something that the international community generally condemns.
In the case of the Iraq invasion, the US didn’t veto a resolution, but rather sought authorisation that it did not get. The UN, if you go by the idea of collective security, should have responded by defending Iraq against this unlawful use of force.
The invasion proved a humanitarian disaster with the loss of more than 400,000 lives, and many believe that it led to the emergence of the terrorist Islamic State.
3. Refugee crises
The UN brokered the 1951 Refugee Convention to address the plight of people displaced in Europe due to World War II; years later, the 1967 Protocol removed time and geographical restrictions so that the Convention can now apply universally (although many countries in Asia have refused to sign it, owing in part to its Eurocentric origins).
Despite these treaties, and the work of the UN High Commission for Refugees, there is somewhere between 30 and 40 million refugees, many of them, such as many Palestinians, living for decades outside their homelands. This is in addition to more than 40 million people displaced within their own countries.
While for a long time refugee numbers were reducing, in recent years, particularly driven by the Syrian conflict, there have been increases in the number of people being displaced.
During the COVID-19 crisis, boatloads of Rohingya refugees were turned away by port after port. This tragedy has echoes of pre-World War II when ships of Jewish refugees fleeing Nazi Germany were refused entry by multiple countries.
And as a catastrophe of a different kind looms, there is no international framework in place for responding to people who will be displaced by rising seas and other effects of climate change.
4. Conflicts without end
Across the world, there is a shopping list of unresolved civil conflicts and disputed territories.
Palestine and Kashmir are two of the longest-running failures of the UN to resolve disputed lands. More recent, ongoing conflicts include the civil wars in Syria and Yemen.
The common denominator of unresolved conflicts is either division among the great powers, or a lack of international interest due to the geopolitical stakes not being sufficiently high. For instance, the inaction during the Rwandan civil war in the 1990s was not due to a division among great powers, but rather a lack of political will to engage.
In Syria, by contrast, Russia and the US have opposing interests and back opposing sides: Russia backs the government of the Syrian dictator Bashar al-Assad, whereas the US does not.
5. Acting like it’s 1945
The UN is increasingly out of step with the reality of geopolitics today.
The permanent members of the Security Council reflect the division of power internationally at the end of World War II. The continuing exclusion of Germany, Japan, and rising powers such as India and Indonesia, reflects the failure to reflect the changing balance of power.
Also, bodies such as the IMF and the World Bank, which are part of the UN system, continue to be dominated by the West. In response, China has created potential rival institutions such as the Asian Infrastructure Investment Bank.
Western domination of UN institutions undermines their credibility. However, a more fundamental problem is that institutions designed in 1945 are a poor fit with the systemic global challenges – of which climate change is foremost – that we face today.