INTRODUCTION

As long ago as sailors ventured into the sea there were two competing principles governing the law of the sea

The right of the coastal state to control a narrow strip along its coast
The freedom of navigation and fishing in the high seas beyond the area of what coastal states controlled.

This issue of competing concept was settled in 1660 when a Dutchman Hugo Grotius – wrote a book called freedom of the sea propounding the idea of freedom of the sea.

The idea of an Englishman John Selden who wrote on the closed seas. These are the so called battles of the books on the law of the sea which was won by Hugo Grotius with his idea of freedom of the law of the sea. For 300 years from 1660 there were only minor challenges to the concept of the freedom of the High Seas particular the freedom of navigation and fishing which were generally agreed. However, one problem remained unresolved and it is the issue of the law of the sea that dogged states from the days of Grotius to the time of the convention mainly the breadth of the territorial sea of a coastal state. It was alright to agree that they were permitted to have a narrow strip but what was to be the breadth of that strip so that what remained would be the high seas for which Grotius advocated freedom. Historically some states had 3 nautical miles territorial seas others have 12 nautical miles and others had all kinds. They all wanted to increase their territorial jurisdiction which meant that a large portion of the seas was falling under coastal states and creeping jurisdiction of the state brought about an attempt to arrest the creeping jurisdiction so that others could have the right to navigate and control.

The freedom of the seas meant that a ship of another state could navigate the sea freely. The state of the ship (nationality) has exclusive jurisdiction of that ship on the High Seas and no other state can exercise jurisdiction over a ship with the nationality of another state. They are conferred nationality by allowing them to fly the flag of a state. This question of devising the concept of nationality to apply to ships did not sit well with certain international lawyers that had been convened later on to study the issues. They argued that using the nationality concept would blur... that challenge did not stop the usage nationality of the ship; it stayed to the extent that other rules had to be developed to deal with the question of nationality of ships.

The theory of genuine link was used to define when a ship can claim the nationality of a state, (Nottonbohm case). A ship has to have a genuine link with a state whose flag it flies. In essence when a ship flies the flag of a state of which it is a national it is established under customary international law that in the High Seas that ship is subsumed i.e. objective territory familiarity as defined in the S.S Lotus when it was announced that a ship in the High seas flying the flag of a state is subsumed under the territory of the nation whose flag its flying.

It therefore became very important for the international community to agree on how far a coastal state would extend its jurisdiction and control so that a larger part of the sea would be left for the rest of humanity.

The law of the sea was beginning to devolve on developing the practice of seeking to control the urge to states to extend their territorial jurisdiction.

THE EARLY CODIFICATION ATTEMPTS BY THE LEAGUE OF NATIONS IN 1930s.

The League of Nations was trying to see if there was enough practice that would throw light on the law of the sea. What was the practice, what concept were states following when delimiting the breadth of the coastal strip.

What problems are brought about by flags of convenience and how are they resolved?

CODIFICATION AND PROGRESSIVE DEVELOPMENT.

These two terms are used in the Charter of UN to distinguish the process through which effort is made to identify the predominant state practice in respect to an issue and then agree whether it is worthy of becoming international customary law. you merely codify you are not creating anything new. Like using the low water mark to delineate the territorial sea, codified on the basis of state practice which is predominant. Remember if a treaty only deals with principles that have been codified, it has a declaratory effect on public international law. What is codified only reflects the practice that is found to exist. If there is not enough state practice but maybe 40% of states are doing so, it is brought to states’ notice and states begin to negotiate and then crystallize the law. The states may have started to do but were probably not brave enough so you bring it to effect. Where an issue is so important that a new law is required and states have no idea about where to go, you call in the experts who negotiate and accept a completely new law to govern states conduct where legal control is required. Call a conference and create a new law. Such a treaty has a constitutive effect, it does not merely crystallize but it creates a new law. This is why treaties must be ratified by states. Both the crystallizing and the constitutive treaties are only laws to those who accept them but a declaratory treaty is binding.

The League of Nations at first failed. When the UN entered the sea after the 2nd world war, things changed. The UN first codification attempt succeeded. In 1958 we have the full Vienna Convention on the law of the sea. The international community behaves in a rather crusade fashion, between 1967-1982 every self respecting law school was teaching the law of the sea. The western world tried to influence the outcome by their experts writing copiously and commenting on the outcome.

In 1947 once US took the lead making a pronouncement on their continental shelf

The Law of the Sea Convention

United Nations Convention on the Law of the Sea

Early codification attempts of the Law of the Sea by the League of Nations and other Developments:

A ship of any state has the freedom to navigate the oceans freely.

The state of the ship nationality has the exclusive jurisdiction over the ship on the high seas No other state has the right to exercise jurisdiction of that ship

While states were allowed to control a narrow strip of their coasts with arguments ranging on how far to go. With the question of the battle of the law of the sea settled, the law relating to ships was developing in a parallel version within the concept of the law of the sea. When dispute arose as to whether a ship navigating the high seas with the flag of another state could be entered into. In the famous SS Lotus case the court recognized the following emphasizing that the law relating to the legal status of ships was developing in “a corollary of the freedom of the sea is that a ship on the high sea is assimilated to the territory of the state the flag of which it flies. For just as in its own territory, that state exercises authority upon it and no other state may do so the Permanent Court of International Justice Serial No. 10 in the famous S.S Lotus case. This is in respect of the law developing to touch on the ships; the extent of the jurisdiction is not settled yet. With the legal status of ships settled, the remaining issue was how to determine the extent of coastal state jurisdiction seaward.

As late as 1920 work began, governments became interested in settling this issue, how they were to agree at the extent and breadth of coast jurisdiction. In 1921 the states gathered in Barcelona to settle this issue but they failed. In 1923 in Geneva they met again to discuss the extent of coastal strip jurisdiction and what kinds of rights was a state to have, been there any other rights to be enjoyed by states that were not coastal states? Interest now was going beyond mere delimitation of the breadth. In 1919 1st world war ended and the League of Nations was established and the League got into the act. The League convened a codification conference which was held at The Hague in 1930 from 13th March to 14th April to codify the Law of the Sea and take up other issues. The simple question of the extent of delimitation was jeopardized by other issues and again the conference failed to give answers.

This question was to remain from 1930 to 1982.

In 1930 when the League failed, it opened the way for unilateral actions by the states each of them now declaring the area of the sea it now controls and there emerged two questions which were being illustrated by unilateral actions of the state

The breadth of territorial sea;
How to measure the breadth of the territorial sea.

Brazil in 1938 declared that its territorial sea would extend to 12 nautical miles measured from the low water marks or the shore, the baseline.

Ecuador announced 15 nautical miles measured from the low water marks, USSR 12 nautical miles measured from the low water mark, French indo china declared 20 nautical miles measured from the low water mark, United Kingdom declared 3-12 nautical miles measured from the low water mark, Panama decided to extend between 300 – 1200 nautical miles measured from the low water mark.

We now have state practice trying to establish new law by suggesting that whenever the breadth is agreed, it shall be formed from the low water mark.

In the early 40s especially after 1945 the 2nd world war ended and in came the United Nations. From the early 40s there was concentration for the search of the delimitation of territorial sea. In 1945 Harry S Truman President of USA proclaimed that concerning the … the continental shelf is a natural prolongation of the land. He was concerned about the principle that would extend the territorial sea jurisdiction the idea of the continental shelf. He also took on the question of fisheries jurisdiction. He never pronounced the particular breadth of territorial seas but made it open ended. Other states wanted to respond to the Truman Declaration on continental shelf and fisheries.

Argentina using its sovereignty to extend its continental shelf and to declare a fisheries zone.

Panama declared territorial sea and continental shelf without saying how far they went and included areas for fisheries.

Nicaragua, Chile, Latin America began to be extravagant and declared 200 miles territorial sea. They were all responding to Truman’s declaration by extending their fisheries jurisdiction and territorial sea.

This continued as far as 1953 and states were still groping in the dark. These early attempts to codify the law of the sea remained chaotic until the United Nations decided to do a thorough study of the problem. It did not merely call a conference like the league but decided to approach the issues that had become chaotic by the unilateral decisions of the states. The United Nations decided to use Article 13 (a) of the Charter of United Nations, that article allows the General Assembly to promote progressive development of International Law and its codification. Using that article the UN had already put together a commission called International Law Commission made up of individual top notch lawyers representing the major legal systems of the world. They were 34 from 1976 to 1995. The International Law Commission ILC is the legal organ made up of 34 lawyers elected by the UN general assembly to draft articles and to deal with the problem and to suggest and produce a draft, which draft is given to the General Assembly of the UN to produce a treaty.

The UN decided to request the ICL to study the subject and possibly produce draft articles on the basis of which a new law of the sea and answers to all the questions could be negotiated and adopted. This is a departure from the League, no conference. The beauty of this style is that the ILC meets every year in Geneva (where Adede used to serve as a legal advisor) they used to deal with legal issues and they worked very hard. The ILC empowered by the UN to study the problem of the Law of the Sea and draft articles. Since they are individual lawyers working in their personal capacity, the result of their work had to be looked at politically and every year the UN brings the report to General Assembly and submits it to the 6 to give its legal opinion and give decision. It took them 5 years to draft a draft text which was prepared to the ILC and was the basis upon which the international community was able to conclude the famous 4 Geneva Conventions on the Law of the Sea in 1958 it was adopted at a conference using the draft prepared by the ILC. It was a successful example of codification of international law relating to the law of the sea.

The 1st UN Conference on the Law of the Sea UNCLOS I

UNCLOS I of 1958 – this conference had before it a text that was prepared by members of the UN International Law Commission and placed before the conference.

The results of UNCLOS I

The efforts were successful in that the conference produced the famous 4 Geneva ‘Conventions of the Law of the Sea of 1958

Convention on the territorial sea and contiguous zone which came into force on 1oth September 1964 – they were all adopted on 19th April.
Convention on the High Seas which came into force in 30th September 1962;
Convention on Fishing and Conservation of the Living Resources of the High Seas which came into force on 20th March 1966;
Convention on the Continental Shelf which came into force 10th June 1964.

UNCLOS I succeeded in discussing 4 conventions dealing with the law of the sea. The Convention on Territorial Sea of 1958: on the elusive problem of the determination of the breadth of the sea the ILC observed that there was no uniform practice among states to suggest a firm commitment and a firm standard to define the breadth of territorial sea and so the convention does not define the scope and breadth of the territorial sea. In fact as early as 1951 when negotiations were going on there was a case between UK and Norway where Norway tried to insist that 10 nautical miles had become customs territorial sea but ICJ rejected the idea that 10 nautical miles territorial sea had become customs law. the treaty however codified part of the problem namely the baseline. It accepted that the low water mark was to be the baseline from which territorial sea was to be measured therefore codifying customary international law in 1958. But long before the case between UK and Norway the court said that for the purpose of measuring the breadth of territorial sea it is the low water mark as opposed to the high water mark or the mean between the two types which has been generally accepted in the practice of states, the criterion is the most favourable and clearly shows the character of territorial waters. (Anglo Norwegian Fisheries Case).

The convention did something startling, it failed to establish the breadth of territorial sea but goes ahead to establish the outer limit of the Contiguous Zone. That Contiguous zone shall not be extended beyond 12 nautical miles.

Already questions were being raised that even if territorial sea was extended were there rights that other states could enjoy within the territorial sea. Were there residue rights that other states could enjoy? This brought about the concept of innocent passage. The convention on the territorial sea did outline the concept of innocent passage which permits ships to pass through the territorial sea of a state so long as no crimes are committed and it is innocent passage. A ship of a third state can navigate through the territorial sea under the concept of innocent passage in the territorial sea of a state. So the first conference did not settle the perennial question and left it open. Art. 23 (2) … the contiguous zone in no way should be beyond the 12 nautical miles.

The concept of the freedom of the sea was expanded with two more freedoms: freedom to lay submarine cables and pipeline and the freedom to fly over the High Seas.

DEFINITION OF THE HIGH SEA.

The convention on the High Seas defined High Seas as all parts of the sea that are not included in the territorial sea or internal waters of the state. The convention on the High Seas also accepted the doctrine of genuine link as a means of determining the origin of genuine ships borrowed from the (Nottenbohm Case) to deal with the ships. Here we are using customary international law. It is here that they started creating duties upon states that allowed ships to use their flags to effectively exercise their jurisdiction and control over the ships they allowed to fly their flags by providing the ships with documents. Ships were thus prevented from changing their flags midstream and a ship could not own more than one flag. After the 2nd World war a lot of Western countries that had ships gave up their ships and allowed them to register with other countries that had less labour rules like Panama etc. These were referred to as flags of convenience. These flags became a nuisance and the ships were referred to as ships of open registry. As the law developed and economies developed, these concepts were beginning to clash i.e. the genuine link and flags of convenience were clashing. There was a whole section on how to deal with ships that are used for commercial purposes i.e. merchants’ ships as distinguished from ships operated by governments for commercial purposes and warships. What happens when ships collide in the High Seas.

S.S Lotus – there was a collision between two ships and S.S Lotus claimed territorial sovereignty and the court said that in such a case it is not exclusively the state whose ship in the high sea was injured that controls. The ship with the injury can instigate the procedure. Turkey had suffered an injury and they could go to court.

Convention on Fishing – this convention is known for recognizing the special interest of the coastal state in the conservation, management and exploitation of

the fisheries in the areas contiguous to its zone. This treaty introduced already the concept that conservation of fisheries and natural resources in the territorial sea must be based on scientific evidence on the concept of maximum sustainable yield of those products to supply maximum food and marine products.

CONVENTION ON THE CONTINENTAL SHELF.

That convention defines the continental shelf and says that for the purpose continental shelf is used as referring

Sea bed and adjacent subsoil
Depth of 200 meters and beyond that limit … this was estimation, it had no basis. The capacity to exploit theory was found to be inadequate and led to rejection by the 3rd world.

The United Nations convened a second conference on the Law of the Sea in 1960 (UNCLOS II)

The conference failed to solve the specific issue of the breadth of the Sea. The suggested formula lost by a vote.

At the end of 1960 when the 2nd conference failed these four conventions began to receive a lot of criticism because during the 1960s a lot of African countries were becoming independent and other countries were becoming strong enough to challenge earlier positions. The four treaties soon proved obsolete due to the rapid increase in the use of the sea and fishing ceased to be a territorial exercise as fleet of ships started roaming of the seas, mammoth oil tankers started roaming the sea and major accidents made people aware of the dangers of unregulated marine environment could no longer cope with the pollution. Technology developed to the extent that even deep sea bed resources became accessible.

A code of international law for the ocean was needed to deal with the major problems that had arisen.

Continental shelf – most countries found the definition very imprecise. The question of exploitability allowed the countries with technologies to exploit the sea as far as they could.

Fishing had ceased to be a local enterprise because large factory ships and smaller fleets started roaming the seas for long distance fishing which began to affect and the question of depletion of fish arose. Geneva Convention of 1958 had already set the principle of optimum yield but no one was observing it.
Oil tankers began ferrying oil across the ocean raising the question of oil spillage and pollution
The marine environment could no longer cope with the assault of pollution from oil tankers, degradation from drilling.
Technology advanced to the extent of creating a possibility of mining the deep sea bed area where something called Manganese Nodules was found. This had not been taken into account before.

Therefore the emergence of clusters of issues including the question of marine scientific research and technology needed to urgently be discussed. Secondly we now have pollution as an issue to be addressed under the law of the sea and thirdly seabed mining added to now the famous issue of coastal state jurisdiction which was unsettled. How far was the territorial sea.

At the end of UNCLOS I AND UNCLOSE II 1958 and 1965 the world was faced with a nightmare of marine science and technology and everybody was convinced that the old regime had failed to bring order in the ocean. They would have to work together and produce a new law of the sea. The campaign to start a new negotiation to deal with the law of the sea began in 1967.

The campaign to begin this thing was originated by Ambassador Avid Pardo, who was the permanent representative of the government of Malta to the United Nations. In 1967 on 17th August Pardo requested the inclusion of a new item in the agenda of the 22nd session of the general assembly of United Nations dealing with the issue of seabed mining only. He wanted a declaration and a treaty concerning the reservation exclusively for peaceful purposes of the seabed and the ocean floor underlying the seas beyond the limits of present National jurisdiction and the use of their resources in the interest of mankind. The debate began on whether such an item was supportable, could the UN initiate another discussion on the law of the sea dealing with sea bed mining. The others joined and supported Malta for the issue to be included and discussed by the general assembly.

The United Nation did not assign this work to the International Law Commission but created an independent body called the Seabed Committee to study the peaceful uses of the seabed, the ocean floor and the resources thereof beyond the limit of national jurisdiction. It was an ad hoc committee of a few states (27). the ad hoc committee began to do its work by trying to unravel what Pardo meant by reserving the seabed for the benefit of mankind and for peaceful purposes.

The United Nations in 1967 changed the ad hoc committee to a permanent committee known as the seabed committee with the mandate to deal with all issues touching upon the law of the sea and not limiting itself to the question of seabed mining.

In 1969 the UN passed a resolution creating a Moratorium Resolution so that all work on seabed beyond territorial jurisdiction had to stop, states could conduct activities in the sea bed area but they were not to exploit. Three views were expressed concerning the so called seabed area that was supposed to be reserved for peaceful purposes

Whenever we define the area it is to be res communis – common to everyone.
whenever we define the area it was to be res nulluis – belongs to no one;
Whenever it was defined it was to be part of the freedom of the High Seas in that it was shared and where exploited the rights of others had to be taken into account.

These conflicting views emerged as the sea bed committee began to deliberate. After much discussion of these competing views about the seabed area, the UN passed another resolution in 1970 that now tried to elucidate the concept of seabed area and the common heritage of mankind as captured in page 5 of the handout. That is where it was confirmed that the seabed and ocean floor and the sub soil thereof beyond the limit of national jurisdiction as well as the resources of the sea are the common heritage of mankind. This was anew term coined to deal with the law of the sea. … it shall not be subject to appropriation by states or persons and that it shall be open to use exclusively for peaceful purposes by all states without discrimination.

To manage their work the Seabed Committee decided to establish 3 seabed committees

the first was to devote its time to all issues of seabed mining and how it would be done within the meaning of the common heritage of mankind;
the second to deal with all issues relating to the question of the coastal territorial sea jurisdiction,
the third one to deal with marine scientific research and pollution.

These 3 had to produce treaty language that would soon become the law of the sea. They were charged with that duty. Since the agenda that initiated this discussion was by Avid Pardo who was more concerned with seabed mining, it appears that that influenced the focus of the decision at the committee in that they started much more quickly in dealing with the area of seabed mining and the fact that it had never been discussed before. The question arose as to who would exploit the common heritage of mankind for the rest of the mankind, this was the first question. Considering the 3rd world has neither the technology nor the money, how are they to exploit the area? The discussion took almost 3 years to answer these questions out of which came the following basic solutions.

It was quickly realised that to be able to give effect to the area by exploring and exploiting resources for the benefit of mankind, the international committee had to establish a new international organization to deal with this issue. The new organization was called the International Seabed Authority. What would be the structure of the new organization and what would be its functions and organ? All these were being done by subcommittee dealing with the seabed mining issues. They are the ones who suggested that the resolutions that gave the permission to explore and not to exploit had developed and now the area could be exploited but no state could begin exploiting except with accordance with the law to be developed and put into place.

The law for seabed mining became another cluster of issues. Can states themselves have the capacity of exploiting the area. Sub committee one was grappling with how the law was going to be.

INNOCENT PASSAGE.

Committee 2 was busy muddling through, the only area they had was the territorial sea but the other areas of the sea like the straits used for international navigation needed some questions answered. States like Indonesia are Archipelagic states so what would be the regime of a state in archipelagic waters for example. What must a ship do when exercising its innocent passage in the territorial sea, if a submarine is having innocent passage in territorial waters, it had to come above waters and display its flag, no more underground. Innocent passage had now become customary law.

Committee 2 also realised there was something called transit passage as opposed to innocent passage. This meant unimpeded passage.

The high seas – committee 3 debated and found two more issues of the sea. The 3rd committee was grappling with marine scientific research and also pollution from dumping of waste and other matter, pollution from ships and the need to fashion the law that would be directed towards controlling all this pollution, this is in 1970-1973. There are now other bodies like Inter Governmental Maritime body (IMCO) that used to deal with issues of pollution of the sea. The environment had just held the Stockholm Conference and the question of the pollution of the universe became paramount.

UNEP still wanted to deal with pollution but it was directed to deal with land based sources of pollution. IMCO called a conference in 1973 to deal with the problem of marine pollution from the sea.

While committee 2 was grappling with issues of sea lanes, what other jurisdictions were to be created for ships, there are merchant ships, government ships used for commercial ships, government ships used for non-commercial purposes and there are war ships.

Committee 3 became licensed to take issues of pollution across the board, they could answer questions of pollution comprehensively. They were now writing the law that dealt with pollution from all sources. They were writing to the law to deal with pollution. Marine scientific research – committee 3 was developing concepts that would conserve and sustainably maintain the living resources of the sea so that they are neither under-harvested nor over-harvested to destroy the sea.

Landlocked countries were also negotiating three quarters of which were in Africa. The whole struggle was to prevent states extending their jurisdiction seaward creeping seaward so that they could not leave enough area for the heritage of mankind. The UN took the view that the whole world is made of water and it was the land that was encroaching and the sea was all over and all mankind could benefit from it. There was no need for the coastal states to be greedy as they took the view that the world was made of land but it was the other way round.

In 1973 the Seabed Committee working through the 3 subcommittees were able to produce certain draft articles in the form of the law of the sea. These draft articles were in the alternative at variance. They gave alternatives the manner of drafting therefore became a problem. They would give answers as either/or. At the end of 1973 the Seabed Committee completed its work on producing suggested text for the purposes of developing the new law of the sea. This is comparable for what the Law of the sea did for the

It was time for the UN to decide, we had UNCLOS I and we had had UNCLOS II. In 1973 the UN convened the UNCLOS III. It had taken 6 years of preparation from 1967 to 1973. The first session of the 3rd United Nations Conference of Law of the Sea (UNCLOS III)

Where was such a huge conference to be held to deal with the new law of the ocean. This conference was supposed to have been held in Santiago Chile in 1974, with preparations and 1st Session being held in New York. But there was a coup and therefore the law of the sea could not be held in Santiago. Ollende was overthrown and the conference was moved to Caracas in Venezuela. Since it was a Latin America problem they insisted on the conference still being held in South America.

In New York for the admissive part of the conference, how were the chairmanship of the committees to be proposed, politics began, who should take committee I dealing with mining? Africa got it a jamaa from Cameroun. Committee 2 dealing with issues of law Americans got that, Committee 3 pollution and technology went to Eastern Europe, there was now the West Europe and others group which they took the drafting committee. Asia got the President of the Conference Hamilton Shirley Amerasingae of Sri Lanka. From 1974 to 1982 it took 14 years sorting out cluster issues on the law of the sea.

There are about 18 types of states that were taking part in the negotiations of the law of the sea each pursuing their interest and making it very difficult to have consensus.

Landlocked and Geographically disadvantaged States (LLGDS) they ganged together to pursue their interests and were opposing increasing of territorial jurisdiction
Coastal States – trying to extend their territorial jurisdiction
Shelf-locked countries – countries without appreciable continental shelf
Marginalists States – states with an extended continental shelf
Territorialists – states who are declaring the territorial sea to the maximum 200 nautical miles
Land based producers of the sea-bed minerals, copper, cobalt etc
Major consumers of the seabed minerals
States with companies having sea-bed technologies – sea bed mining question
States with long distance fishing fleet
states bordering the pathway of Mammoth oil tankers – interest in terms of pollution
Archipelagic States
States with zigzagging coasts
states with warships , submarines and yacht etc
States with opposite or adjacent coast
States with specific communities known to be reliant of fishing e.g Hills and Obemsby

The seabed committee decide to produce a single convention, unlike the past one, on all the issues.

The rules of procedure for decision making produced active consensus as opposed to Passive Consensus. They perfected consensus that the consensus rule does not mean unanimity.

By 1970 we had not become politically correct. The term used is Gentleman’s Agreement which was as follows, try to negotiate and reach decisions by consensus if we cannot agree we vote. Have a cooling off period.

Consensus as a means of making decisions was perfected at the Law of the Sea where there were negotiations and decisions were reached and the participants were allowed a cooling off period. The spirit of glgl (give a little get a little don’t take all)

Sporadic extensions of jurisdictions especially for fisheries start to crop up all over. Iceland extends its fisheries jurisdiction to 50 and the UK opposed this and went to court. The ICJ said that although the idea of a coastal state having preferential rights had been discussed, Iceland had the same preferential rights but they were to do it respecting the rights of other states. The concept of the EEZ had been mooted. The ICJ said that they could not decide the case on the basis of a law that was still emerging and had not been enacted. The court could not anticipate the law before it had been legislated.

In 1969 the Netherlands and Denmark brought a case against Germans on the delimitation of continental shelves. The ICJ agreed with Truman saying that the continental shelf was the natural prolongation of the landmass of a coastal state seaward. Art. 76 Law of the Sea

Art. 136 – Common Heritage of mankind – the area and its resources are the common heritage of mankind.

Art. 151. Production Policies

Paragraph 4(b) concept of a trend line

Art. 13 7(b) rules, regulations and procedures yet to be established by the Authority.

Governments saw it necessary to negotiate however complicated to produce a Law of the Sea because there was chaos in the Ocean. The idea of having a comprehensive text was also desirable. The convention balanced issues delicately and down the line the negotiators were expecting to put into place a viable dispute settlement system. The law of the sea is unique in its approach to dispute settlement systems; it was part of substantive negotiations and because of it being worked on along the line, and it was possible to accept certain provisions because the parties drafting them knew that the provisions would be enforced by the Dispute Settlement System.

Art. 294: Preliminary Proceedings:

The basic article that lists the kind of forums that were established for dispute settlement. Abuse of process was not to be put up with. The dispute tribunal could decide whether there was abuse or prima facie case to avoid entertaining frivolous cases.

CLUSTERS OF ISSUES.

Cluster 1 Deals with the question of trying to settle the limit of coastal state jurisdiction:

This process defined coastal state jurisdiction in 3 segments

Territorial Sea where a coastal state exercise complete sovereignty as it does over land – some states had extended theirs to 200 nautical miles and others 50 etc. The present law of the Sea under Article 3 is on territorial sea states that every state has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention. The baseline had been settled earlier on and the court deciding that that would be the low water mark. Article 5 except where otherwise provided in this convention, the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal state.
Continental Shelf: the 1958 convention miserably failed in producing an acceptable definition of continental shelf. 3rd world rejected this and people were disappointed and the 58 standard was thrown out leaving only the natural prolongation of the land mass going seawards, how far was not settled. Article 76 defines The continental shelf of a coastal state compromises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distant. When negotiating the continental shelf it was discovered that some countries had been blessed with a natural prolongation up to the rise and were claiming the longest continental shelf which was extending to upto 600 nautical miles but others did not even have the shelf proper and are referred to as shelf locked. The idea was to persuade countries with different geographical endowments to agree on the limit of the continental shelf. There are also countries with shorter shelf proper less than 200 miles and others upto 600 miles. The attempt to deal with these differences was quite challenging and needed the expertise of people who could measure seismic waves to determine the area. The result is reflected in Article 76 (4). For almost 4 years there was no acceptable formula. In the end a figure of 350 nautical miles was arrived at. So for those who had 120 nautical miles of shelf and 60 miles of the slope one was allowed 60 nautical miles of the rise. The earth crust and the ocean crust. One could only follow sediments up to the ice berth that is where the earth crust stopped not more than 350 nautical miles of the territorial sea. The natural prolongation of landmass gives a maximum of 350 nautical miles.
Fisheries Jurisdiction: delimitation using fisheries jurisdiction. Although there was an agreement that the territorial sea was to be of a limited nature, how about the area that was outside the continental shelf and contained fish and other living resources? States could not agree on the Fisheries jurisdiction. Originally States began to declare unilateral fisheries jurisdiction with Iceland declaring 50 miles beyond the territorial sea, Fisheries Jurisdiction Case. This is where Kenya made a serious contribution by floating the concept of Exclusive Economic Zone (EEZ) F X Njenga and his colleagues invented this concept. Article 55 deals with the EEZ. This is an area where States did not exercise complete sovereignty of the territorial sea. The breadth of the EEZ was not to extend beyond 200 nautical miles from the baseline from which the breadth of the territorial sea is measured. The EEZ proper for most government is 188 nautical miles as 12 nautical miles is the territorial sea. The only measurement of coastal state jurisdiction that goes further is the continental shelf that goes up to 350 nautical miles. 12 nautical miles territorial sea, 188 EEZ and upto 350 continental shelf. There are however some limitations in each segment even where the State exercises sovereignty. There is the concept of innocent passage in the territorial sea of a coastal state, the right of other state of navigation and passage.

The delimitation seems successful at this point but the Conference failed to decide on states which had opposite coasts or adjacent coasts and this provided a problem. The 1958 conference had addressed it and suggested that for the opposite state should be the Median Line for the adjacent state it could be the boundary of the Median line every part of which was equidistance from the nearest point. IN the North Sea Continental Shelf Cases between Netherlands v West Germany, this issue was considered by the ICJ. In some States if one were to use the Median Line it would cut them off but the Line works perfectly for others. Some States have concave coasts and others convex coasts.

When Netherlands and Denmark argued before the ICJ that the Median Line was Customary International Law and that if Germany was not a party the Line would apply, the court held that the Median Line had not become customary international law in 1979. the court however pronounced that in such a case delimitation should aim at reaching an equitable solution instead of straight forward equidistance median line. In the UK they were going for the Median equidistant Line. Libya was saying that equitable solution was the rule. For 14 years this was never solved. Up to December 12 1992 this issue remained unanswered.

Art. 74- Delimitation of the EEZ between states with opposite or adjacent coasts. Article 38 of ICJ only lists sources of law.

They failed and in article 38 they are now pleading. There are still no standard or principle for delimitation of EEZ accepted by States with adjacent or opposite coasts.

Article 83 Delimitation of the continental shelf between States with opposite or adjacent coasts.

The only compromise was that the delimitation was to be done peacefully, equitable solution.

Coastal State Jurisdiction continued

The Contiguous zone:

It is a zone lying outside the territorial sea. This contiguous zone is provided for in Article 33 of the Convention.

Article 33:

CONTIGUOUS ZONE.

1. In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal State may exercise the control necessary to: (a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea; (b) punish infringement of the above laws and regulations committed within its territory or territorial sea.

2. The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured. There is a different approach when it comes to states with opposite coasts.

The question of delimitation of territorial sea between states who are opposite or adjacent to each other still arises. The same problem

Article 15:

DELIMITATION OF THE TERRITORIAL SEA BETWEEN STATES WITH OPPOSITE OR ADJACENT COASTS.

Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. The above provision does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith.

THE LEGAL STATUS OF THE TERRITORIAL SEA SEGMENTS:

Is there anything that would mean that the state has to share some of its segments with other states?

Innocent Passage:

SECTION 3. INNOCENT PASSAGE IN THE TERRITORIAL SEA

SUBSECTION A. RULES APPLICABLE TO ALL SHIPS

Article 17:

RIGHT OF INNOCENT PASSAGE.

Subject to this Convention, ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea.

Article 18:

MEANING OF PASSAGE.

1. Passage means navigation through the territorial sea for the purpose of:

Traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters; or
Proceeding to or from internal waters or a call at such road stead or port facility.

2. Passage shall be continuous and expeditious. However, passage includes stopping and anchoring, but only in so far as the same are incidental to ordinary navigation or are rendered necessary by force majeure or distress or for the purpose of rendering assistance to persons, ships or aircraft in danger or distress.

Article 19:

MEANING OF INNOCENT PASSAGE.

1. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law.

2. Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities:

(a) any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations;

any exercise or practice with weapons of any kind;
any act aimed at collecting information to the prejudice of the defence or security of the coastal State;

(d) Any act of propaganda aimed at affecting the defence or security of the coastal State; the launching, landing or taking on board of any aircraft;

(e) The launching, landing or taking on board of any military device;

(f) The loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State;

(g) Any act of wilful and serious pollution contrary to this Convention;

Any fishing activities; the carrying out of research or survey activities; any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State; any other activity not having a direct bearing on passage.

(h) Any act aimed at collecting information to the prejudice of the defence or security of the coastal State;

(i) Any act of propaganda aimed at affecting the defence or security of the coastal State; (j) The launching, landing or taking on board of any aircraft;

(k) The launching, landing or taking on board of any military device;

(l) The loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State;

(m) Any act of wilful and serious pollution contrary to this Convention;

(n) Any fishing activities;

(j) The carrying out of research or survey activities;

(k) Any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State;

(l) Any other activity not having a direct bearing on passage.

Article 45:

INNOCENT PASSAGE.

1. The regime of innocent passage, in accordance with Part II, section 3 shall apply in straits used for international navigation:

(a) Excluded from the application of the regime of transit passage under article 38, paragraph 1; or

(b) between a part of the high seas or an exclusive economic zone and the territorial sea of a foreign State.

2. There shall be no suspension of innocent passage through such straits.

There are straits in the international map that are used for passage, they are few but the law of the sea addressed the question of innocent passage within the strait. The law allows the concept of innocent passage to apply.

Archipelagic States

PART IV

ARCHIPELAGIC STATES

Article 46:

USE OF TERMS.

For the purposes of this Convention:

(a) “Archipelagic State” means a State constituted wholly by one or more archipelagos and may include other islands;

(b) "Archipelago" means a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such.

Article 47:

ARCHIPELAGIC BASELINES.

1. An archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.

2. The length of such baselines shall not exceed 100 nautical miles, except that up to 3 per cent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles.

3. The drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago.

4. Such baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them or where a low-tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the nearest island.

5. The system of such baselines shall not be applied by an archipelagic State in such a manner as to cut off from the high seas or the exclusive economic zone the territorial sea of another State.

6. If a part of the archipelagic waters of an archipelagic State lies between two parts of an immediately adjacent neighbouring State, existing rights and all other legitimate interests who the latter State has traditionally exercised in such waters and all rights stipulated by agreement between those States shall continue and be respected.

7. For the purpose of computing the ratio of water to land under paragraph, land areas may include waters lying within the fringing reefs of islands and atolls, including that part of a steep-sided oceanic plateau which is enclosed or nearly enclosed by a chain of limestone islands and drying reefs lying on the perimeter of the plateau.

8. The baselines drawn in accordance with this article shall be shown on charts of a scale or scales adequate for ascertaining their position. Alternatively, lists of geographical co-ordinates of points, specifying the geodetic datum, may be substituted.

9. The archipelagic State shall give due publicity to such charts or lists of geographical co-ordinates and shall deposit a copy of each such chart or list with the Secretary-General of the United Nations.

Article 53:

RIGHT OF ARCHIPELAGIC SEA LANES PASSAGE.

1. An archipelagic State may designate sea lanes and air routes thereabove, suitable for the continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters and the adjacent territorial sea.

2. All ships and aircraft enjoy the right of archipelagic sea lanes passage in such sea lanes and air routes.

3. Archipelagic sea lanes passage means the exercise in accordance with this Convention of the rights of navigation and over flight in the normal mode solely for the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.

4. Such sea lanes and air routes shall traverse the archipelagic waters and the adjacent territorial sea and shall include all normal passage routes used as routes for international navigation or over flight through or over archipelagic waters and, within such routes, so far as ships are concerned, all normal navigational channels, provided that duplication of routes of similar convenience between the same entry and exit points shall not be necessary.

5. Such sea lanes and air routes shall be defined by a series of continuous axis lines from the entry points of passage routes to the exit points. Ships and aircraft in archipelagic sea lanes passage shall not deviate more than 25 nautical miles to either side of such axis lines during passage, provided that such ships and aircraft shall not navigate closer to the coasts than 10 per cent of the distance between the nearest points on islands bordering the sea lane.

6. An archipelagic State which designates sea lanes under this article may also prescribe traffic separation schemes for the safe passage of ships through narrow channels in such sea lanes.

7. An archipelagic State may, when circumstances require, after giving due publicity thereto, substitute other sea lanes or traffic separation schemes for any sea lanes or traffic separation schemes previously designated or prescribed by it.

8. Such sea lanes and traffic separation schemes shall conform to generally accepted international regulations.

9. In designating or substituting sea lanes or prescribing or substituting traffic separation schemes, an archipelagic State shall refer proposals to the competent international organization with a view to their adoption. The organization may adopt only such sea lanes and traffic separation schemes as may be agreed with the archipelagic State, after which the archipelagic State may designate, prescribe or substitute them.

10. The archipelagic State shall clearly indicate the axis of the sea lanes and the traffic separation schemes designated or prescribed by it on charts to which due publicity shall be given.

11. Ships in archipelagic sea lanes passage shall respect applicable sea planes and traffic separation schemes established in accordance with this article.

12. If an archipelagic State does not designate sea lanes or air routes, the right of archipelagic sea lanes passage may be exercised through the routes normally used for internal navigation.

INNOCENT PASSAGE AS A CONCEPT:

Article 20

SUBMARINES AND OTHER UNDERWATER VEHICLES.

In the territorial sea, submarines and other underwater vehicles are required to navigate on the surface and to show their flag.

TRANSIT PASSAGE:

SECTION 2. TRANSIT PASSAGE

Article 37

SCOPE OF THIS SECTION.

This section applies to straits which are used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.

Within the regime of EEZ and the High sea they concocted the right of transit passage.

Article 38:

RIGHT OF TRANSIT PASSAGE.

1. In straits referred to in article 37, all ships and aircraft enjoy the right of transit passage, which shall not be impeded; except that, if the strait is formed by an island of a State bordering the strait and its mainland, transit passage shall not apply if there exists seaward of the island a route through the high seas or through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics.

2. Transit passage means the exercise in accordance with this Part of the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the strait between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone. However, the requirement of continuous and expeditious transit does not preclude passage through the strait for the purpose of entering, leaving or returning from a State bordering the strait, subject to the conditions of entry to that State.

3. Any activity which is not an exercise of the right of transit passage through a strait remains subject to the other applicable provisions of this Convention.

The right of transit is limited to the two freedoms of Grotius days i.e. navigation and overflight. It must be continuous and expeditious. This transit concept is only for the exercise of navigation and overflight and they are also tied to straits used for international navigation. This is just transit.

Article 39:

DUTIES OF SHIPS AND AIRCRAFT DURING TRANSIT PASSAGE.

1. Ships and aircraft, while exercising the right of transit passage, shall:

(a) Proceed without delay through or over the strait; refrain from any threat or use of force against the sovereignty, territorial integrity or political independence of States bordering the strait, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations;

(b) Refrain from any activities other than those incidents to their normal modes of continuous and expeditious transit unless rendered necessary by force majeure or by distress;

2. Ships in transit passage shall:

(a) Comply with generally accepted international regulations, procedures and practices for safety at sea, including the International Regulations for Preventing Collisions at Sea;

(b) Comply with generally accepted international regulations, procedures and practices for the prevention, reduction and control of pollution from ships.

3. Aircraft in transit passage shall:

observe the Rules of the Air established by the International Civil Aviation Organization as they apply to civil aircraft; state aircraft will normally comply with such safety measures and will at all times operate with due regard for the safety of navigation; (b) at all times monitor the radio frequency assigned by the competent internationally designated air traffic control authority or the appropriate international distress radio frequency.

A state exercising territorial rights has duties that must be exercised and so the core article is on the Transit Passage affecting EEZ which is Article 37 and 39.

What is the quantum of the freedom that 3rd states will exercise in the High Seas with their ships and their aircraft?

Article 87:

FREEDOM OF THE HIGH SEAS.

1. The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States:

(a) freedom of navigation;

(b) freedom of over flight;

(d) freedom to construct artificial islands and other installations permitted under international law, subject to Part VI;

(e) Freedom of fishing, subject to the conditions lay down in section 2;

(f) Freedom of scientific research, subject to Parts VI and XIII.

2. These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area

THE JURISDICTION OF STATES IN THESE SEGMENTS THAT WE HAVE DISCUSSED.

Generally within the EEZ a State has certain general rights

Article 56:

RIGHTS, JURISDICTION AND DUTIES OF THE COASTAL STATE IN THE EXCLUSIVE ECONOMIC ZONE.

1. In the exclusive economic zone, the coastal State has:

(a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the sea-bed and of the sea-bed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds;

(b) Jurisdiction as provided for in the relevant provisions of this Convention with regard to: the establishment and use of artificial islands, installations and structures; marine scientific research; the protection and preservation of the marine environment; other rights and duties provided for in this Convention.

2. In exercising its rights and performing its duties under this Convention in the exclusive economic zone, the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention.

3. The rights set out in this article with respect to the sea-bed and subsoil shall be exercised in accordance with Part VI.

Article 77:

RIGHTS OF THE COASTAL STATE OVER THE CONTINENTAL SHELF.

1. The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources.

2. The rights referred to in paragraph 1 are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State.

3. The rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation.

4. The natural resources referred to in this Part consist of the mineral and other non-living resources of the sea-bed and subsoil together with living organisms belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under these a-bed or are unable to move except in constant physical contact with these a-bed or the subsoil.

Third world approach to the problems of the convention

The method in which the record was produced.

Legal Status of the segments:

The coastal states rights within the EEZ – what is the legal status

Article 56:

RIGHTS, JURISDICTION AND DUTIES OF THE COASTAL STATE IN THE EXCLUSIVE ECONOMIC ZONE.

1. In the exclusive economic zone, the coastal State has:

(b) Jurisdiction as provided for in the relevant provisions of this Convention with regard to:

(i) The establishment and use of artificial islands, installations and structures; marine scientific research;

(iii) the protection and preservation of the marine environment;

3. The rights set out in this article with respect to the sea-bed and subsoil shall be exercised in accordance with Part VI.

The coastal state with the EEZ has some rights; it is not exclusive as there are rights of other states that are to be taken care of. The legal status is that in the EEZ the state does not exercise complete jurisdiction.

Article 77:

RIGHTS OF THE COASTAL STATE OVER THE CONTINENTAL SHELF.

1. The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources.

3. The rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation.

The rights in the continental shelf in respect to the non-living resources, if the state does, in the continental shelf the right of the territorial state to exploit the non-living resources, it does not have to share whereas the rights in the EEZ are non-exclusive

Article 61:

CONSERVATION OF THE LIVING RESOURCES.

1. The coastal State shall determine the allowable catch of the living resources in its exclusive economic zone.

2. The coastal State, taking into account the best scientific evidence available to it, shall ensure through proper conservation and management measures that the maintenance of the living resources in the exclusive economic zone is not endangered by over-exploitation. As appropriate, the coastal State and competent international organizations, whether sub-regional, regional or global, shall co-operate to this end.

3. Such measures shall also be designed to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors, including the economic needs of coastal fishing communities and the special requirements of developing States, and taking into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether sub regional, regional or global.

4. In taking such measures the coastal State shall take into consideration the effects on species associated with or dependent upon harvested species with a view to maintaining or restoring populations of such associated or dependent species above levels at which their reproduction may become seriously threatened.

5. Available scientific information, catch and fishing effort statistics, and other data relevant to the conservation of fish stocks shall be contributed and exchanged on a regular basis through competent international organizations, whether sub regional, regional or global, where appropriate and with participation by all States concerned, including States whose nationals are allowed to fish in the exclusive economic zone.

Comply with maximum sustainable yield but determining the total allowable catch on the basis of scientific evidence. Concept of sustainable yield, this was a unilateral decision by coastal states African countries suggested that in the Exclusive Zone if a state wanted to be nice to a landlocked neighbour, the neighbour could fish in the EEZ with equal rights. A coastal state could share the living resources of the EEZ with the landlocked neighbours. The Latin American Countries rejected the EEZ and said they had the idea of the patrimonial sea which was the idea of allowing disadvantaged countries to share but on a preferential basis and not on an equal basis. If a coastal state cannot fish and take it all, it might give it to a landlocked neighbour as a preference to landlocked far away.

The two concepts were both rejected by the conference which were negotiating and what came out is the formula is what came out in Articles 61, 62, 70 and 71

Article 62:

UTILIZATION OF THE LIVING RESOURCES.

1. The coastal State shall promote the objective of optimum utilization of the living resources in the exclusive economic zone without prejudice to article 61.

2. The coastal State shall determine its capacity to harvest the living resources of the exclusive economic zone. Where the coastal State does not have the capacity to harvest the entire allowable catch, it shall, through agreements or other arrangements and pursuant to the terms, conditions, laws and regulations referred to in paragraph 4, give other States access to the surplus of the allowable catch, having particular regard to the provisions of articles 69 and 70, especially in relation to the developing States mentioned therein.

3. In giving access to other States to its exclusive economic zone under this article the coastal State shall take into account all relevant factors, including, inter alia, the significance of the living resources of the area to the economy of the coastal State concerned and its other national interests, the provisions of articles 69 and 70, the requirements of developing States in the sub region or region in harvesting part of the surplus and the need to minimize economic dislocation in States whose nationals have habitually fished in the zone or which have made substantial efforts in research and identification of stocks.

4. Nationals of other States fishing in the exclusive economic zone shall comply with the conservation measures and with the other terms and conditions established in the laws and regulations of the coastal State. These laws and regulations shall be consistent with this Convention and may relate, inter alia, to the following:

(a) licensing of fishermen, fishing vessels and equipment, including payment of fees and other forms of remuneration, which, in the case of developing coastal States, may consist of adequate compensation in the field of financing, equipment and technology relating to the fishing industry;

(b) determining the species which may be caught, and fixing quotas of catch, whether in relation to particular stocks or groups of stocks or catch per vessel over a period of time or to the catch by nationals of any State during a specified period;

(c) regulating seasons and areas of fishing, the types, sizes and amount of gear, and the types, sizes and number of fishing vessels that may be used;

(d) fixing the age and size of fish and other species that may be caught;

(e) specifying information required of fishing vessels, including catch and effort statistics and vessel position reports;

(f) requiring, under the authorization and control of the coastal State, the conduct of specified fisheries research programmes and regulating the conduct of such research, including the sampling of catches, disposition of samples and reporting of associated scientific data;

(g) the placing of observers or trainees on board such vessels by the coastal State;

(h) the landing of all or any part of the catch by such vessels in the ports of the coastal State;

(I) terms and conditions relating to joint ventures or other co-operative arrangements;

(j) requirements for the training of personnel and the transfer of fisheries technology, including enhancement of the coastal State's capability of undertaking fisheries research;

(k) enforcement procedures.

5. Coastal States shall give due notice of conservation and management laws and regulations.

As a coastal state, to determine the maximum allowable catch, has the coastal state got the capability to harvest the 50% of Lobsters for example, do they have the capability? One is only entitled to exploit the surplus in the EEZ and only if the coastal state has declared it. The rights in the EEZ are non exclusive and rights on the continental shelf are exclusive.

The dispute settlement system of the law of the sea is the most complicated, the articles of the dispute settlement were negotiated.

Where a coastal has refused to declare surplus in the EEZ, what happens - this was all discussed in the 3rd cluster of issues which was research. With respect to EEZ there is the requirement of sharing with other states the living resources particularly with the landlocked states and those that are geographically disadvantaged. Article 69, 70 and 71

Article 69:

RIGHT OF LAND-LOCKED STATES.

1. Land-locked States shall have the right to participate, on an equitable basis, in the exploitation of an appropriate part of the surplus of the living resources of the exclusive economic zones of coastal States of the same sub-region or region, taking into account the relevant economic and geographical circumstances of all the States concerned and in conformity with the provisions of this article and of articles 61 and 62.

2. The terms and modalities of such participation shall be established by the States concerned through bilateral, sub regional or regional agreements taking into account, inter alia:

(a) the need to avoid effects detrimental to fishing communities or fishing industries of the coastal State;

(b) the extent to which the land-locked State, in accordance with the provisions of this article, is participating or is entitled to participate under existing bilateral, sub regional or regional agreements in the exploitation of living resources of the exclusive economic zones of other coastal States;

(c) the extent to which other land-locked States and geographically disadvantaged States are participating in the exploitation of the living resources of the exclusive economic zone of the coastal State and the consequent need to avoid a particular burden for any single coastal State or a part of it;

(d) the nutritional needs of the populations of the respective States.

3. When the harvesting capacity of a coastal State approaches a point which would enable it to harvest the entire allowable catch of the living resources in its exclusive economic zone, the coastal State and other States concerned shall co-operate in the establishment of equitable arrangements on a bilateral, sub regional or regional basis to allow for participation of developing land-locked States of the same subregion or region in the exploitation of the living resources of the exclusive economic zones of coastal States of the subregion or region, as may be appropriate in the circumstances and on terms satisfactory to all parties. In the implementation of this provision the factors mentioned in paragraph 2 shall also be taken into account.

4. Developed land-locked States shall, under the provisions of this article, be entitled to participate in the exploitation of living resources only in the exclusive economic zones of developed coastal States of the same subregion or region having regard to the extent to which the coastal State, in giving access to other States to the living resources of its exclusive economic zone, has taken into account the need to minimize detrimental effects on fishing communities and economic dislocation in

states whose nationals have habitually fished in the zone.

5. The above provisions are without prejudice to arrangements agreed upon in sub regions or regions where the coastal States may grant to land-locked States of the same subregion or region equal or preferential rights for the exploitation of the living resources in the exclusive economic zones.

Article 70:

RIGHT OF GEOGRAPHICALLY DISADVANTAGED STATES.

1. Geographically disadvantaged States shall have the right to participate, on an equitable basis, in the exploitation of an appropriate part of the surplus of the living resources of the exclusive economic zones of coastal States of the same subregion or region, taking into account the relevant economic and geographical circumstances of all the States concerned and in conformity with the provisions of this article and of articles 61 and 62.

2. For the purposes of this Part, "geographically disadvantaged States" means coastal States, including States bordering enclosed or semi-enclosed seas, whose geographical situation makes them dependent upon the exploitation of the living resources of the exclusive economic zones of other States in the subregion or region for adequate supplies of fish for the nutritional purposes of their populations or parts thereof, and coastal States which can claim no exclusive economic zones of their own.

3. The terms and modalities of such participation shall be established by the States concerned through bilateral, sub regional or regional agreements taking into account, inter alia:

(a) the need to avoid effects detrimental to fishing communities or fishing industries of the coastal State;

(b) the extent to which the geographically disadvantaged State, in accordance with the provisions of this article, is participating or is entitled to participate under existing bilateral, sub regional or regional agreements in the exploitation of living resources of the exclusive economic zones of other coastal States;

(c) the extent to which other geographically disadvantaged States and landlocked States are participating in the exploitation of the living resources of the exclusive economic zone of the coastal State and the consequent need to avoid a particular burden for any single coastal State or a part of it;

(d) the nutritional needs of the populations of the respective States.

4. When the harvesting capacity of a coastal State approaches a point which would enable it to harvest the entire allowable catch of the living resources in its exclusive economic zone, the coastal State and other States concerned shall co-operate in the establishment of equitable arrangements on a bilateral, sub regional or regional basis to allow for participation of developing geographically disadvantaged States of the same sub region or region in the exploitation of the living resources of the exclusive economic zones of coastal States of the sub region or region, as may be appropriate in the circumstances and on terms satisfactory to all parties. In the implementation of this provision the factors mentioned in paragraph 3 shall also be taken into account.

5. Developed geographically disadvantaged States shall, under the provisions of this article, be entitled to participate in the exploitation of living resources only in the exclusive economic zones of developed coastal States of the same sub region or region having regard to the extent to which the coastal State, in giving access to other States to the living resources of its exclusive economic zone, has taken into account the need to minimize detrimental effects on fishing communities and economic dislocation in States whose nationals have habitually fished in the zone.

6. The above provisions are without prejudice to arrangements agreed upon in sub regions or regions where the coastal States may grant to geographically disadvantaged States of the same sub region or region equal or preferential rights for the exploitation of the living resources in the exclusive economic zones.

Article 71:

NON-APPLICABILITY OF ARTICLES 69 AND 70.

The provisions of articles 69 and 70 do not apply in the case of a coastal State whose economy is overwhelmingly dependent on the exploitation of the living resources of its exclusive economic zone.

This was to prevent a situation where countries come from far away to exploit EEZ for example in Africa, EEZ was to be exploited by landlocked neighbours, to participate on part of the surplus of the living resources within the region.

The so called Landlocked and Geographically disadvantaged states (llgds) have the right to seek to exploit the living resource was of the EEZ. This was a law reform movement that involved codification and progressive development of the law. Codification means to take cognizance of state practice. The Fisheries case, Norway v United Kingdom established the preferential rule. When the practice is part of customary international law the states were allowed to have fishing rights, the problem was how far, the EEZ was to give access to the LLGDs and the Landlocked countries.

Article 71 is relying on customary international law and decision of cases, if a particular coastal state shows that its economy depends on fish, then the question of declaring surplus does not apply. This was the only exception. The law of the sea merely codified acceptable state practice.

Article 311:

RELATION TO OTHER CONVENTIONS AND INTERNATIONAL AGREEMENTS.

1. This Convention shall prevail, as between States Parties, over the Geneva Conventions on the Law of the Sea of 29 April 1958.

2. This Convention shall not alter the rights and obligations of States Parties which arise from other agreements compatible with this Convention and which do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention.

3. Two or more States Parties may conclude agreements modifying or suspending the operation of provisions of this Convention, applicable solely to the relations between them, provided that such agreements do not relate to a provision derogation from which is incompatible with the effective execution of the object and purpose of this Convention, and provided further that such agreements shall not affect the application of the basic principles embodied herein, and that the provisions of such agreements do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention.

4. States Parties intending to conclude an agreement referred to in paragraph 3 shall notify the other States Parties through the depositary of this Convention of their intention to conclude the agreement and of the modification or suspension for which it provides.

5. This article does not affect international agreements expressly permitted or preserved by other articles of this Convention.

6. States Parties agree that there shall be no amendments to the basic principle relating to the common heritage of mankind set forth in article 136 and that they shall not be party to any agreement in derogation thereof.

A state may still claim rights founded in the four Geneva Conventions and other will rely on customary law of the sea. This convention almost died because of so many hostilities about creating the law. People wanted to cling to their customary law that was developed by their states where they were the predominant participants.

When it comes to a Coastal State that relies heavily on fish, customary law protects that State’s right and Articles 69 and 70 will not apply.

HIGH SEAS.

Freedom of Navigation and Freedom of fishing

Cluster of the area of the Marine Pollution, Prevention, Reduction and Control from all sources.

Protection of Marine Environment.

From 1968 when the Seabed Committee was established there was a tendency to prevent governments to deal with the law of the sea on the grounds that a conference had been initiated to deal with the law of the sea.

1972 – Stockholm conference on environment was held and it was decided that anything to deal with pollution ought not to be dealt with by the environment experts but ought to be dealt with by the Law of the Sea.

1978 3rd UN Conference on the Law of the Sea –Marine Pollution was being addressed.

Article 192 - Article 192- GENERAL OBLIGATION

States have the obligation to protect and preserve the marine environment.

This was preceded by Stockholm Principle 21 which states have an obligation to protect and preserve marine environment. This is part of the total environment to be protected by the States.

Article 194:

MEASURES TO PREVENT, REDUCE AND CONTROL POLLUTION OF THE MARINE ENVIRONMENT.

1. States shall take, individually or jointly as appropriate, all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source, using for this purpose the best practicable means at their disposal and in accordance with their capabilities, and they shall endeavour to harmonize their policies in this connection.

2. States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention.

3. The measures taken pursuant to this Part shall deal with all sources of pollution of the marine environment. These measures shall include, inter alia, those designed to minimize to the fullest possible extent:

(a) the release of toxic, harmful or noxious substances, especially those which are persistent, from land-based sources, from or through the atmosphere or by dumping;

(b) pollution from vessels, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, preventing intentional and unintentional discharges, and regulating the design, construction, equipment, operation and manning of vessels;

(c) pollution from installations and devices used in exploration or exploitation of the natural resources of the sea-bed and subsoil, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, and regulating the design, construction, equipment, operation and manning of such installations or devices;

(d) pollution from other installations and devices operating in the marine environment, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, and regulating the design, construction, equipment, operation and manning of such installations or devices.

4. In taking measures to prevent, reduce or control pollution of the marine environment, States shall refrain from unjustifiable interference with activities carried out by other States in the exercise of their rights and in pursuance of their duties in conformity with this Convention.

5. The measures taken in accordance with this Part shall include those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life.

Fights were going on and there were specific organizations that were dealing with the issue of marine pollution within their own competence e.g. international Maritime Organization (IMO) UN body dealing with laws relating to shipping and relying on the call by Stockholm to negotiate treaties in the field of environment, IMO decided to take on the question of Marine Pollution in 1973. they were asked to address the question of Marine Pollution but only from ships.

1973 IMCO Convention on Marine Pollution from Ships was held. The following year the famous United Nation Environment Programme was held in Nairobi as UNEP also wanted to deal with pollution of Marine Environment since it was the establishment started to deal with environment but again the Law of the Sea told them to concern themselves only with marine pollution from land based sources.

Pollution by Dumping of Waste and other matter:

Since there was not a single UN body with this responsibility, Her Majesty’s government in UK decided to convene a diplomatic conference on dumping and other matters. They convened the London Dumping Convention to develop a treaty on dumping and to save the marine environment by stopping dumping of waste and other matters.

As UNCLOS III begun in 1974 to cover all the issues of the law of the sea – it was deal with the pollution of marine environment From any source! Including land based sources.

210 - POLLUTION BY DUMPING

211 - POLLUTION FROM VESSELS

for negotiating purposes the style of writing a single convention was useful in that it increased areas of specific concerns of states negotiating and allowed them to trade off so that the results was a package deal between states made of a series of mini-package deals. Those countries that were long distance owners of ships that were shipping elsewhere of their coasts were being reminded that in their fishing activities they should not pollute the areas that they fish.

The major tankers that were owned by a number of States and Companies were being put on the spot. There was a time when a series of major tanker accidents happened and these began to create problems that went beyond the aegis of one particular nation. They had to come up with ways of how to construct tankers so that when they crash they don’t cause major environmental accidents. They also needed to consider training the people running the oil tankers and therefore you had countries taking part in the negotiations. Countries with ships with flags of convenience because they had cheap labour legislation. The law of the sea had to address all these issues.

Emergency Pollutions: pollutions was occurring not only from the sea but also mining activities of oil in continental shelves was not to pollute the sea even the territorial sea. So while concentrating on measures to prevent a particular type of pollution, states were being advised to ensure that in doing so they do not end up creating other problems for the environment. If harnessing water for whatever reasons, care was to be taken to prevent damage to the environment.

Article 195:

DUTY NOT TO TRANSFER DAMAGE OR HAZARDS OR TRANSFORM ONE TYPE OF POLLUTION INTO ANOTHER.

In taking measures to prevent, reduce and control pollution of the marine environment, States shall act so as not to transfer, directly or indirectly, damage or hazards from one area to another or transform one time of pollution into another.

Law of the sea was discussing pollution not only marine pollution but pollution in general and marine pollution in particular from any source.

At this time major issues arose in the context of law of the sea obligations. How were they to make sure that States without technology had capacity to undertake the obligations. The issue of Transfer of Technology, Technical Assistance and scientific research arose. Before this time nobody cared what was going to happen but with the Law of the Sea the idea of beginning to take into account special interests of developing countries became a legal question. Law of the Sea was expected to function and so everyone had to be able to comply. Questions of global and regional cooperation to deal with these things became one of the most controversial articles to be written in a multilateral treaty. There is a whole section on technical assistance and scientific research to developing state through competent international organizations promote programs of technical and other assistance

SECTION 3. TECHNICAL ASSISTANCE.

Article 202:

SCIENTIFIC AND TECHNICAL ASSISTANCE TO DEVELOPING STATES

States shall, directly or through competent international organizations:

(a) Promote programmes of scientific, educational, technical and other assistance to developing States for the protection and preservation of the marine environment and the prevention, reduction and control of marine pollution. Such assistance shall include, inter alia:

(i) training of their scientific and technical personnel;

(ii) facilitating their participation in relevant international programmes;

(iii) supplying them with necessary equipment and facilities;

(iv) enhancing their capacity to manufacture such equipment;

(v) advice on and developing facilities for research, monitoring,

educational and other programmes;

(b) provide appropriate assistance, especially to developing States, for the minimization of the effects of major incidents which may cause serious pollution of the marine environment;

(c) provide appropriate assistance, especially to developing States, concerning the preparation of environmental assessments.

Article 203: PREFERENTIAL TREATMENT FOR DEVELOPING STATES

Developing States shall, for the purposes of prevention, reduction and control of pollution of the marine environment or minimization of its effects, be granted preference by international organizations in:

the allocation of appropriate funds and technical assistance; and
the utilization of their specialized services.

The first treaty to take into account problems of implementation for all the treaty matters. There was a huge problem or a gap that had to be dealt with which was transfer of technology. The cluster of articles addressing the question of preservation or protection of marine environment from pollution from all sources had not been considered before until the 3rd UN Conference on the Law of the Sea produced a committee dealing with marine pollution specifically. In the negotiating arrangement there were experts dealing with delimitation and the rights of coastal states. They knew all about the sea, ships, laying of submarine cables etc.

SCIENTIFIC RESEARCH.

Article 244:

PUBLICATION AND DISSEMINATION OF INFORMATION AND KNOWLEDGE.

1. States and competent international organizations shall, in accordance with this Convention, make available by publication and dissemination through appropriate channels information on proposed major programmes and their objectives as well as knowledge resulting from marine scientific research.

2. For this purpose, States, both individually and in co-operation with other States and with competent international organizations, shall actively promote the flow of scientific data and information and the transfer of knowledge resulting from marine scientific research, especially to developing States, as well as the strengthening of the autonomous marine scientific research capabilities of developing States through, inter alia, programmes to provide adequate education and training of their technical and scientific personnel.

When one is coastal state that wants to protect and preserve marine environment and fish now you know from Article 244 where one can train personnel and transfer of technology.

Article 246:

MARINE SCIENTIFIC RESEARCH IN THE EXCLUSIVE ECONOMIC ZONE AND ON THE CONTINENTAL SHELF.

1. Coastal States, in the exercise of their jurisdiction, have the right to regulate, authorize and conduct marine scientific research in their exclusive economic zone and on their continental shelf in accordance with the relevant provisions of this Convention.

2. Marine scientific research in the exclusive economic zone and on the continental shelf shall be conducted with the consent of the coastal State.

3. Coastal States shall, in normal circumstances, grant their consent for marine scientific research projects by other States or competent international organizations in their exclusive economic zone or on their continental shelf to be carried out in accordance with this Convention exclusively for peaceful purposes and in order to increase scientific knowledge of the marine environment for the benefit of all mankind. To this end, coastal States shall establish rules and procedures ensuring that such consent will not be delayed or denied unreasonably.

4. For the purposes of applying paragraph 3, normal circumstances may exist

in spite of the absence of diplomatic relations between the coastal State and the researching State.

5. Coastal States may however in their discretion withhold their consent to the conduct of a marine scientific research project of another State or competent international organization in the exclusive economic zone or on the continental shelf of the coastal State if that project:

(a) is of direct significance for the exploration and exploitation of natural resources, whether living or non-living;

(b) involves drilling into the continental shelf, the use of explosives or the introduction of harmful substances into the marine environment;

(c) involves the construction, operation or use of artificial islands, installations and structures referred to in articles 60 and 80;

(d) contains information communicated pursuant to article 248 regarding the nature and objectives of the project which is inaccurate or if the researching State or competent international organization has outstanding obligations to the coastal State from a prior research project.

6. Notwithstanding the provisions of paragraph 5, coastal States may not exercise their discretion to withhold consent under subparagraph

(a) of that paragraph in respect of marine scientific research projects to be undertaken in accordance with the provisions of this Part on the continental shelf, beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, outside those specific areas which coastal States may at any time publicly designate as areas in which exploitation or detailed exploratory operations focused on those areas are occurring or will occur within a reasonable period of time. Coastal States shall give reasonable notice of the designation of such areas, as well as any modifications thereto, but shall not be obliged to give details of the operations therein.

7. The provisions of paragraph 6 are without prejudice to the rights of coastal States over the continental shelf as established in article 77.

8. Marine scientific research activities referred to in this article shall not unjustifiably interfere with activities undertaken by coastal States in the exercise of their sovereign rights and jurisdiction provided for in this Convention.

How another state can conduct research in the EEZ of another State. there are conditions listed in paragraph 5. Under normal circumstances under EEZ only takes place with consent of the Coastal State but there are provisions under which the state may withhold consent.

Developed countries wanted to do away with the consent regime, they had argued and developed another article reducing the requirements required to conduct research in the EEZ of another state.

Article 249:

DUTY TO COMPLY WITH CERTAIN CONDITIONS.

1. States and competent international organizations when undertaking marine scientific research in the exclusive economic zone or on the continental shelf of a coastal State shall comply with the following conditions:

(a) ensure the right of the coastal State, if it so desires, to participate or be represented in the marine scientific research project, especially on board research vessels and other craft or scientific research installations, when practicable, without payment of any remuneration to the scientists of the coastal State and without obligation to contribute towards the costs of the project;

(b) provide the coastal State, at its request, with preliminary reports, as soon as practicable, and with the final results and conclusions after the completion of the research; (c) undertake to provide access for the coastal State, at its request, to all data and samples derived from the marine scientific research project and likewise to furnish it with data which may be copied and samples which may be divided without detriment to their scientific value;

(d) if requested, provide the coastal State with an assessment of such data, samples and research results or provide assistance in their assessment or interpretation;

(e) ensure, subject to paragraph 2, that the research results are made internationally available through appropriate national or international channels, as soon as practicable;

(f) inform the coastal State immediately of any major change in the research programme; (g) unless otherwise agreed, remove the scientific research installations or equipment once the research is completed.

2. This article is without prejudice to the conditions established by the laws and regulations of the coastal State for the exercise of its discretion to grant or withhold consent pursuant to article 246, paragraph

5, including requiring prior agreement for making internationally available the research results of a project of direct significance for the exploration and exploitation of natural resources.

In the area of natural resource development on land any company prospecting must have a team of locals accompanying them to see what they are doing. If a Coastal state wishes to be represented when exploration or research is taking place in the EEZ and without any obligation to contribute to the cost of the project the state may do so. It is also to make sure that the data collected is shared with the coastal state.

A coastal state has a right to discontinue any scientific research where it finds that the researcher is not complying with the rules. The coastal state has the right to control the research or they may disallow the project. Even where there is a change in the method of work, the researcher must inform the coastal state.

Article 252 Implied Consent:

IMPLIED CONSENT.

States or competent international organizations may proceed with a marine scientific research project six months after the date upon which the information required pursuant to article 248 was provided to the coastal State unless within four months of the receipt of the communication containing such information the coastal State has informed the State or organization conducting the research that:

(a) it has withheld its consent under the provisions of article 246; or

(b) the information given by that State or competent international organization regarding the nature or objectives of the project does not conform to the manifestly evident facts; or

(c) it requires supplementary information relevant to conditions and the information provided for under articles 248 and 249; or

(d) outstanding obligations exist with respect to a previous marine scientific research project carried out by that State or organization, with regard to conditions established in article 249.

The western world country sneaked this into the convention so that they could sneak and do research without the coastal state being involved. If a State writes to Kenya that it wants to carry out scientific research in Indian Ocean, the office where the letter goes must have an officer who can read the request and understand it and act on it. It is confusing since we do not know who exactly the letter should go to. If it takes longer to reply more than four months due to the confusion, it means that the developed state can take advantage and sneak in and carry out their own research on their own citing article 252.

If one is embarrassed and finds another coast doing research in their EEZ and the coastal state did not know may be the letter was misplaced, the law says that the Coastal State may in this case ask the other State to leave because the Coastal State did not give consent. If the Coastal State finds that the other person has done nothing but conduct scientific research and the coastal state may have the machinery to get involved, they may decide to get involved or tell the other person to leave. Suspension or cessation of marine research article 253

Article 253

SUSPENSION OR CESSATION OF MARINE SCIENTIFIC RESEARCH ACTIVITIES

1. A coastal State shall have the right to require the suspension of any marine scientific research activities in progress within its exclusive economic zone or on its continental shelf if:

(a) the research activities are not being conducted in accordance with the information communicated as provided under article 248 upon which the consent of the coastal State was based; or

(b) the State or competent international organization conducting the research activities fails to comply with the provisions of article 249 concerning the rights of the coastal State with respect to the marine scientific research project.

2. A coastal State shall have the right to require the cessation of any marine scientific research activities in case of any non-compliance with the provisions of article 248 which amounts to a major change in the research project or the research activities.

3. A coastal State may also require cessation of marine scientific research activities if any of the situations contemplated in paragraph 1 are not rectified within a reasonable period of time.

4. Following notification by the coastal State of its decision to order suspension or cessation, States or competent international organizations authorized to conduct marine scientific research activities shall terminate the research activities that are the subject of such a notification.

5. An order of suspension under paragraph 1 shall be lifted by the coastal State and the marine scientific research activities allowed to continue once the researching State or competent international organization has complied with the conditions required under articles 248 and 249.

TRANSFER OF TECHNOLOGY:

The Law of the Sea was negotiated in the 80s. UNCTAD had already prepared a code of transfer of technology which was abandoned since the developed countries said they could not accept the obligation of the transfer of technology since it did not belong to them but to private companies, Article 266

PART XIV

DEVELOPMENT AND TRANSFER OF MARINE TECHNOLOGY

SECTION 1. GENERAL PROVISIONS

Article 266

PROMOTION OF THE DEVELOPMENT AND TRANSFER OF MARINE TECHNOLOGY

1. States, directly or through competent international organizations, shall cooperate in accordance with their capabilities to promote actively the development and transfer of marine science and marine technology on fair and reasonable terms and conditions.

2. States shall promote the development of the marine scientific and technological capacity of States which may need and request technical assistance in this field, particularly developing States, including land-locked and geographically disadvantaged States, with regard to the exploration, exploitation, conservation and management of marine resources, the protection and preservation of the marine environment, marine scientific research and other activities in the marine environment compatible with this Convention, with a view to accelerating the social and economic development of the developing States.

3. States shall endeavour to foster favourable economic and legal conditions for the transfer of marine technology for the benefit of all parties concerned on an equitable basis.

They agreed to cooperate and promote but they were not doing anything to transfer technology as there was no time frame agreed upon to transfer technology. This was in the context of an area in which the Industrial Countries did not have an interest and they were just playing around. They had no intention of transferring technology. The aim is to develop and transfer technology Article 269

Article 269

MEASURES TO ACHIEVE THE BASIC OBJECTIVES

In order to achieve the objectives referred to in article 268, States, directly or through competent international organizations, shall endeavour, inter alia, to:

establish programmes of technical co-operation for the effective transfer of all kinds of marine technology to States which may need and request technical assistance in this field, particularly the developing land-locked and geographically disadvantaged States, as well as other developing States which have not been able either to establish or develop their own technological capacity in marine science and in the exploration and exploitation of marine resources or to develop the infrastructure of such technology;
promote favourable conditions for the conclusion of agreements, contracts and other similar arrangements, under equitable and reasonable conditions;
hold conferences, seminars and symposia on scientific and technological subjects, in particular on policies and methods for the transfer of marine technology;
promote the exchange of scientists and of technological and other experts;
undertake projects and promote joint ventures and other forms of bilateral and multilateral co-operation.

These were put there to demonstrate the genuine attempt of negotiators, who wished to find a solution to the inertia of the 3rd world. The article is there but the 3rd world do not use the resources that are out there. They always had funds available at UNEP for development of programs of a regional nature, but we do not have scholars to produce programs with regional implications that can qualify for funding. A regional program would for example be like writing a proposal to rid Lake Victoria of Hyacinth, it is regional as it affects 3 countries but there is no one to write and oversee a credible project.

SEABED MINING:

Firstly there was a rumour that mining of the Manganese Nodules in the common heritage of mankind would affect the economies of countries that produce copper, nickel and cobalt. A preliminary study needed to be conducted to find out the effect of seabed mining. The first study was given to UNCTAD and the other study was being conducted by UNE on whether seabed mining would have adverse effect on the economies of land-based producers of the minerals. Some quarters were arguing that mining the seabed is capital intensive and could not compete with mining on land and therefore could not affect the economies. The other side was arguing that seabed mining can have adverse economic effect because if developed countries got independent access they would speed up the process and mine up the nodules and the countries could get affected. In the end the Conference took the decision that given the conflicting results and having invested 6 years of preparation and having invested so much, they decided to continue negotiating. The issue remained 50-50 and they decided to go ahead and see how they could develop the common heritage of mankind.

THE BIG DEBATE

Did the countries have enough experience to write legal principles dealing with seabed mining? Who was going to do it? It was realized that apart from the articles establishing the substantive law and procedure the countries would need to establish an independent body to deal with the seabed mining which gave forth the establishing of the International Seabed Authority to be the authority that would represent the common heritage of mankind, it was to be the custodian of the common heritage of mankind. Kenya was favoured to be the 1st 3rd country to host a United Nations Body (UNEP). All the 3rd world countries had fought to have the body in their countries and Jamaica joined the fray. The Headquarters of the Civil Authority body was to be in Montego Bay in Jamaica.

PART 11 OF LAW OF THE SEA CONVENTION

SEABED AREA

This is the area which is described “no state shall claim or exercise sovereignty over any part of the area and no state shall appropriate any part thereof and no such appropriation shall be recognized, all rights are vested on mankind as a whole …”

Article 140

1. Activities in the Area shall, as specifically provided for in this Part, be carried out for the benefit of mankind as a whole, irrespective of the geographical location of States, whether coastal or land-locked, and taking into particular consideration the interests and needs of developing States and of peoples who have not attained full independence or other self-governing status recognized by the United Nations in accordance with General Assembly resolution 1514 (XV) and other relevant General Assembly resolutions.

2. The Authority shall provide for the equitable sharing of financial and other economic benefits derived from activities in the Area through any appropriate mechanism on a non-discriminatory basis, in accordance with article 160, paragraph 2 (f) (i).

Article 156

ESTABLISHMENT OF THE AUTHORITY

1. There is hereby established the International Sea-Bed Authority, which shall function in accordance with this Part.

2. All States Parties are ipso facto members of the Authority.

3. Observers at the Third United Nations Conference on the Law of the Sea who have signed the Final Act and who are not referred to in article 305, paragraph 1 (c), (d), (e) or (f), shall have the right to participate in the Authority as observers, in accordance with its rules, regulations and procedures.

4. The seat of the Authority shall be in Jamaica.

5. The Authority may establish such regional centres or offices as it deems necessary for the exercise of its functions.

Article 157

NATURE AND FUNDAMENTAL PRINCIPLES OF THE AUTHORITY

1. The Authority is the organization through which States Parties shall, in accordance with this Part, organize and control activities in the Area, particularly with a view to administering the resources of the Area.

2. The powers and functions of the Authority shall be those expressly conferred upon it by this Convention. The Authority shall have such incidental powers, consistent with this Convention, as are implicit in and necessary for the exercise of those powers and functions with respect to activities in the Area.

3. The Authority is based on the principle of the sovereign equality of all its members.

4. All members of the Authority shall fulfil in good faith the obligations assumed by them in accordance with this Part in order to ensure to all of them the rights and benefits resulting from membership.

The Western World were already thinking since the authority might be dominated by the 3rd world and under (2) it hinted on power to ensure that it was clearly spelt out. The 3rd world did not want to have an organization put on the strait-jacket from the beginning so they added the second part of (2) that authority shall have incidental power. It was an attempt to see that the powers of the authority were circumscribed ab initio.

How were they going to structure the seabed authority?

Article 158

ORGANS OF THE AUTHORITY

1. There are hereby established, as the principal organs of the Authority, an Assembly, a Council and a Secretariat.

2. There is hereby established the Enterprise, the organ through which the Authority shall carry out the functions referred to in article 170, paragraph 1.

3. Such subsidiary organs as may be found necessary may be established in accordance with this Part.

4. Each principal organ of the Authority and the Enterprise shall be responsible for exercising those powers and functions which are conferred upon it. In exercising such powers and functions each organ shall avoid taking any action which may derogate from or impede the exercise of specific powers and functions conferred upon another organ.

There was a fight that since the idea of establishing the authority to deal with supervising and administering the seabed area, the question of whether or not it is that assembly that would do the actual exploitation of the seabed. Already the question was raised as to who may exploit the area. The Enterprise comes in on the 2nd paragraph as the organ through which the authority shall carry out the functions in Article 157.

The 3rd world didn’t want the area exploited exclusively by the developed world that had the technology and finance to do it and therefore there had to be a situation where the 3rd world could take part. The 3rd world could conduct exploration of the area. The debate on who was to exploit the area was elevated to discussion dealing with the system with which to exploit the area.

Article 153

SYSTEM OF EXPLORATION AND EXPLOITATION

1. Activities in the Area shall be organized, carried out and controlled by the Authority on behalf of mankind as a whole in accordance with this article as well as other relevant provisions of this Part and the relevant Annexes, and the rules, regulations and procedures of the Authority.

2. Activities in the Area shall be carried out as prescribed in paragraph 3:

(a) by the Enterprise, and

(b) in association with the Authority by States Parties, or state enterprises or natural or juridical persons which possess the nationality of States Parties or are effectively controlled by them or their nationals, when sponsored by such States, or any group of the foregoing which meets the requirements provided in this Part and in Annex III.

3. Activities in the Area shall be carried out in accordance with a formal written plan of work drawn up in accordance with Annex III and approved by the Council after review by the Legal and Technical Commission. In the cast off activities in the Area carried out as authorized by the Authority by the entities specified in paragraph 2(b), the plan of work shall, in accordance with Annex III, article 3, be in the form of a contract. Such contracts may provide for joint arrangements in accordance with Annex III, article 11.

4. The Authority shall exercise such control over activities in the Area as is necessary for the purpose of securing compliance with the relevant provisions of this Part and the Annexes relating thereto, and the rules, regulations and procedures of the Authority, and the plans of work approved in accordance with paragraph 3. States Parties shall assist the Authority by taking all measures necessary to ensure such compliance in accordance with article 139.

5. The Authority shall have the right to take at any time any measures provided for under this Part to ensure compliance with its provisions and the exercise of the functions of control and regulation assigned to it there under or under any contract. The Authority shall have the right to inspect all installations in the Area used in connection with activities in the Area.

6. A contract under paragraph 3 shall provide for security of tenure. Accordingly, the contract shall not be revised, suspended or terminated except in accordance with Annex III, articles 18 and 19.

There was fear that a lot of companies that were huge and had so much money were going around doing a lot of things without their governments being aware so to bring in governments and make them responsible for their companies was difficult. It was though to be an attempt of bringing in the question of protection of juridical persons. If any claim arose about a company it would have to go to its country to espouse its claim to bring it for settlement. The 3rd world wanted to make sure that every company that applied to mine the area had been cleared by it country. So sponsorship was added to ensure that natural juridical persons would pass through their own states through the system of sponsorship. Article 153 (2) (b)

The question of who may exploit the common heritage of mankind was raised in 1974 and was not settled until May 1980.

The question of who may exploit the area is dealt with under Article 153.

The actual conditions of exploiting the area are in Article

ANNEX III (refer to Annex III)

BASIC CONDITIONS OF PROSPECTING, EXPLORATION AND EXPLOITATION

The Authority and the Enterprise and all the persons who qualified to conduct activities in the area, the law to cover them must be detailed enough and precise enough to leave no room for unnecessary discretionary decisions. A detailed mining code was necessary instead of the normal general principles obligations usually written in a treaty. They called for a mining code. The 3rd world started out asking for general obligations but later started coming with very detailed information to ask certain questions. They were asking if the Enterprise is the 3rd world multinational, where was it going to get the finance and technology to mine the seabed? The juridical persons were the ones with finance and technology to exploit the area so detailed procedures were needed to ensure that the companies with the finance and technology can assist the Enterprise with the finance and technology for exploiting the area for the benefit of mankind. States themselves were standing by waiting to see how this was going to work. The States started creating obligations and negotiating on how to exploit the area.

For 3 years there was a deadlock and since the Authority is the ones that controlled and administered it was decided to try the “Banking System” they wanted provisions requiring each company that has got a sponsorship of its government as required to write to the authority applying for permission to carry out an activities in the area prospecting. The Authority is supposed to receive the application and allow the company to do prospecting, use its money and technology to prospect. Then the rule was to indicate that in doing this the company would be required to prospect two areas of equal value. After the prospecting by the company, then it had to divide the area into two equal parts in terms of mineral content. The company was then required to go back to the authority and report their findings and to offer one of the two equal parts to the authority and the other part remains with the company.

The next stage of exploring and exploiting was difficult. The company would be required to produce a written plan of work where the company would undertake to transfer technology to the authority. It would also be required to make sure that if the company does not have the technology but will rely on ta 3rd party to supply the technology, it would undertake to ensure that the authority also got the technology on which it was relying. The discussion of these plans of work are found in Article 6 of the

Article 5

Transfer of Technology

Article 5

TRANSFER OF TECHNOLOGY

1. When submitting a plan of work, every applicant shall make available to the Authority a general description of the equipment and methods to be used in carrying out activities in the Area, and other relevant non-proprietary information about the characteristics of such technology and information as to where such technology is available.

2. Every operator shall inform the Authority of revisions in the description and information made available pursuant to paragraph 1 whenever a substantial technological change or innovation is introduced.

3. Every contract for carrying out activities in the Area shall contain the following undertakings by the contractor:

means of licences or other appropriate arrangements which the contractor shall negotiate with the Enterprise and which shall be set forth in a specific agreement supplementary to the contract. This undertaking may be invoked only if the Enterprise finds that it is unable to obtain the same or equally efficient and useful technology on the open market on fair and reasonable commercial terms and conditions;

(b) to obtain a written assurance from the owner of any technology used in carrying out activities

in the Area under the contract, which is not generally available on the open market and which is not covered by subparagraph (a), that the owner will, whenever the Authority so requests, make that technology available to the Enterprise under licence or other appropriate arrangements and on fair

and reasonable commercial terms and conditions, to the same extent as made available to the contractor. If this assurance is not obtained, the technology in question shall not be used by the contractor in carrying out activities in the Area;

(c) to acquire from the owner by means of an enforceable contract, upon the request of the Enterprise and if it is possible to do so without substantial cost to the contractor, the legal right to transfer to the Enterprise any technology used by the contractor, in carrying out activities in the Area under the contract, which the contractor is otherwise not legally entitled to transfer and which is not generally available on the open market. In cases where there is a substantial corporate relationship between the contractor and the owner of the technology, the closeness of this relationship and the degree of control or influence shall be relevant to the determination whether all feasible measures have been taken to acquire such a right. In cases where the contractor exercises effective control over the owner, failure to acquire from the owner the legal right shall be considered relevant to the contractor's qualification for any subsequent application for approval of a plan of work; (d) to facilitate, upon the request of the Enterprise, the acquisition by the Enterprise of any technology covered by subparagraph (b), under licence or other appropriate arrangements and on fair and reasonable commercial terms and conditions, if the Enterprise decides to negotiate directly with the owner of the technology;

(e) to take the same measures as are prescribed in subparagraphs (a), (b), (c) and (d) for the benefit of a developing State or group of developing States which has applied for a contract under article 9 of this Annex, provided that these measures shall be limited to the exploitation of the part of the area proposed by the contractor which has been reserved pursuant to article 8 of this Annex and provided that activities under the contract sought by the developing State or group of developing States would not involve transfer of technology to a third State or the nationals of a third State. The obligation under this provision shall only apply with respect to any given contractor where technology has not been requested by the Enterprise or transferred by that contractor to the Enterprise.

4. Disputes concerning undertakings required by paragraph 3, like other provisions of the contracts, shall be subject to compulsory settlement in accordance with Part XI and, in cases of violation of these undertakings, suspension or termination of the contract or monetary penalties may be ordered in accordance with article 18 of this Annex. Disputes as to whether offers made by the contractor are within the range of fair and reasonable commercial terms and conditions may be submitted by either party to binding commercial arbitration in accordance with the UNCITRAL Arbitration Rules or such other arbitration rules as may be prescribed in the rules, regulations and procedures of the Authority. If the finding is that the offer made by

the contractor is not within the range of fair and reasonable commercial terms and conditions, the contractor shall be given 45 days to revise his offer to bring it within that range before the Authority takes any action in accordance with article 18 of this Annex.

5. If the Enterprise is unable to obtain on fair and reasonable commercial terms and conditions appropriate technology to enable it to commence in a timely manner the recovery and processing of minerals from the Area, either the Council or the Assembly may convene a group of States Parties composed of those which are engaged in activities in the Area, those which have sponsored entities which are engaged in activities in the Area and other States Parties having access to such technology. This group shall consult together and shall take effective measures to ensure that such technology is made available to the Enterprise on fair and reasonable commercial terms and conditions. Each such State Party shall take all feasible measures to this end within its own legal system .

6. In the case of joint ventures with the Enterprise, transfer of technology will be in accordance with the terms of the joint venture agreement.

7. The undertakings required by paragraph 3 shall be included in each contract for the carrying out of activities in the Area until 10 years after the commencement of commercial production by the Enterprise, and maybe invoked during that period.

8. For the purposes of this article, "technology" means the specialized equipment and technical know-how, including manuals, designs, operating instructions, training and technical advice and assistance, necessary to assemble, maintain and operate a viable system and the legal right to use these items for that purpose on a non-exclusive basis.

Because of the Banking System the 3rd world countries wanted to have access to the seabed mining authority by negotiating with the authority that had the technology. Exploitation was to be by way of the parallel system. For the Western World to accept this notion of writing in the treaty details, provisions that compel their companies to transfer technology was not easy. Firstly they did not want it, but then the conference decided to negotiate a comprehensive treaty dealing with all issues together instead of each separate section. They began by saying that for themselves they wanted an assured access to seabed mining as states and only companies to go through the authority, the 3rd world said no.

The 3rd world countries wanted to write the obligation of transfer of technology by the developed countries from their companies into the treaty. They would get assured and unimpeded access to seabed mining if they were ready to transfer technology. For the first time they were willing to lose by relaxing their argument that technology is proprietary and owned by companies to gain assured access to seabed mining.

Question: Which major issue of the of the law of the sea remained unresolved until 1982 convention – breadth of territorial sea was the issue. Extent of coastal jurisdiction seaward.

A new international establishment was established to oversee activities in the common heritage of mankind. The Enterprise was one of the establishments. We have established that as part of the answer basic conditions were established in the convention to facilitate the transfer of seabed mining technology and exploitation of the minerals.

Annex IIII Article 5(3)

If an applicant does not have technology then a written assurance from the owner of the technology that if the technology is made available to it from the open market it will make it available to the applicant at a reasonable price

3. Every contract for carrying out activities in the Area shall contain the following undertakings by the contractor:

(a) to make available to the Enterprise on fair and reasonable commercial terms and conditions, whenever the Authority so requests, the technology which he uses in carrying out activities in the Area under the contract, which the contractor is legally entitled to transfer. This shall be done by means of licences or other appropriate arrangements which the contractor shall negotiate with the Enterprise and which shall be set forth in a specific agreement supplementary to the contract. This undertaking may be invoked only if the Enterprise finds that it is unable to obtain the same or equally efficient and useful technology on the open market on fair and reasonable commercial terms and conditions;

(b) to obtain a written assurance from the owner of any technology used in carrying out activities in the Area under the contract, which is not generally available on the open market and which is not covered by subparagraph (a), that the owner will, whenever the Authority so requests, make that technology available to the Enterprise under licence or other appropriate arrangements and on fair and reasonable commercial terms and conditions, to the same extent as made available to the contractor. If this assurance is not obtained, the technology in question shall not be used by the contractor in carrying out activities in the Area;

available on the open market. In cases where there is a substantial corporate relationship between the contractor and the owner of the technology, the closeness of this relationship and the degree of control or influence shall be relevant to the determination whether all feasible measures have been taken to acquire such a right. In cases where the contractor exercises effective control over the owner, failure to acquire from the owner the legal right shall be considered relevant to the

contractor's qualification for any subsequent application for approval of a plan of work; (d) to facilitate, upon the request of the Enterprise, the acquisition by the Enterprise of any technology covered by subparagraph (b), under licence or other appropriate arrangements and on fair and reasonable commercial terms and conditions, if the Enterprise decides to negotiate directly with the owner of the technology;

(e) to take the same measures as are prescribed in subparagraphs (a), (b),

(c) and (d) for the benefit of a developing State or group of developing States which has applied for a contract under article 9 of this Annex, provided that these measures shall be limited to the exploitation of the part of the area proposed by the contractor which has been reserved pursuant to article 8 of this Annex and provided that activities under the contract sought by the developing State or group of developing States would not involve transfer of technology to a third State or the nationals of a third State. The obligation under this provision shall only apply with

respect to any given contractor where technology has not been requested by the Enterprise or transferred by that contractor to the Enterprise.

The Convention established the international tribunal of the law of the sea. There was a fight over whether detailed mining code was required or its merely simple obligations or leaving it to the authority to write recommendations, proposals and regulations. In Annex III prospecting exploration and exploitation was left to the enterprise. If the corporation is the Applicant it has to be sponsored by the government, this was in qualification of applicants.

Article 13 – Basic Conditions – this is a definitive article about financial terms of the contract to mine the sea bed. This is convention paid attention to financial arrangements by those who wanted to get involved in mining. The authority wanted to make the enterprise viable and went on to acquire technology and the finance to manage and control the area.

13(7)(b) - (b) If the Authority cannot otherwise determine the quantity of the processed metals produced from the polymetallic nodules recovered from the area covered by the contract referred to in paragraphs 5 (b) and 6 (b), the quantity shall be determined on the basis of the metal content of the nodules, processing recovery efficiency and other relevant factors, in accordance with the rules, regulations and procedures of the Authority and in conformity with generally recognized accounting principles.

Seabed mining was supposed to produce enough resources for the benefit of mankind and also protecting land-based producers of the minerals from excessive seabed mining.

Article 151 – Production Policies

The only way all the details could be accepted in a convention ( details on seabed mining on which very little was known) the compromise was that the system was to be reviewed in 5 years from its entry into force and that there was to be review conferences to see if the system works. The convention had just too many details on seabed mining.

Article 155

THE REVIEW CONFERENCE

1. Fifteen years from 1 January of the year in which the earliest commercial production commences under an approved plan of work, the Assembly shall convene a conference for the review of those provisions of this Part and the relevant Annexes which govern the system of exploration and exploitation of the resources of the Area. The Review Conference shall consider in detail, in the light of the experience acquired during that period:

(a) whether the provisions of this Part which govern the system of exploration and exploitation of the resources of the Area have achieved their aims in all respects, including whether they have benefited mankind as a whole;

(b) whether, during the 15-year period, reserved areas have been exploited in an effective and balanced manner in comparison with non-reserved areas;

(c) whether the development and use of the Area and its resources have been undertaken in such a manner as to foster healthy development of the world economy and balanced growth of international trade;

(d) whether monopolization of activities in the Area has been prevented;

(e) whether the policies set forth in articles 150 and 151 have been fulfilled; and

(f) whether the system has resulted in the equitable sharing of benefits derived from activities in the Area, taking into particular consideration the interests and needs of the developing States.

the rights of States and their general conduct in relation to the Area, and their participation in activities in the Area in conformity with this Convention, the prevention of monopolization of activities in the Area, the use of the Area exclusively for peaceful purposes, economic aspects of activities in the Area, marine scientific research, transfer of technology, protection of the marine environment, protection of human life, rights of coastal States, the legal status of the waters superjacent to the Area and that of the air space above those waters and accommodation between activities in the Area and other activities in the marine environment.

3. The decision-making procedure applicable at the Review Conference shall

be the same as that applicable at the Third United Nations Conference on the Law of the Sea. The Conference shall make every effort to reach agreement on any amendments by way of consensus and there should be no voting on such matters until all efforts at achieving consensus have been exhausted.

4. If, five years after its commencement, the Review Conference has not reached agreement on the system of exploration and exploitation of the resources of the Area, it may decide during the ensuing 12 months, by a three-fourths majority of the States Parties, to adopt and submit to the States Parties for ratification or accession such amendments changing or modifying the system as it determines necessary and appropriate. Such amendments shall enter into force for all States Parties 12 months after the deposit of instruments of ratification or accession by three fourths of the States Parties.

5. Amendments adopted by the Review Conference pursuant to this article shall not affect rights acquired under existing contracts.

Review was desirable to find out whether everything was working and where something was not working then to rectify it. This Article stands for one of the major compromises in the scheme, it is preceded 154 which calls for periodic review every 5 years. States had to agree to Section 155 or there would be no convention. This article required the way the seabed regime was acting in practice to be reviewed. questionnaires were circulated to states to give their views on how the deep seabed was being operated. This was the origin of review conferences. 15 years after the beginning of production there was to be a review.

ORGANS OF THE AUTHORITY

This new international organization established to organize and control the activities in the common heritage of mankind referred to as the “Area” activities referred to exploiting the seabed and the Area.

Article 159

COMPOSITION, PROCEDURE AND VOTING

1. The Assembly shall consist of all the members of the Authority. Each member shall have one representative in the Assembly, who may be accompanied by alternates and advisers.

2. The Assembly shall meet in regular annual sessions and in such special sessions as may be decided by the Assembly, or convened by the Secretary-General at the request of the Council or of a majority of the members of the Authority.

3. Sessions shall take place at the seat of the Authority unless otherwise decided by the Assembly.

4. The Assembly shall adopt its rules of procedure. At the beginning of each regular session, it shall elect its President and such other officers as may be required. They shall hold office until a new President and other officers are elected at the next regular session.

5. A majority of the members of the Assembly shall constitute a quorum.

6. Each member of the Assembly shall have one vote.

7. Decisions on questions of procedure, including decisions to convene special sessions of the Assembly, shall be taken by a majority of the members present and voting.

8. Decisions on questions of substance shall be taken by a two-thirds majority of the members present and voting, provided that such majority includes a majority of the members participating in the session. When the issue arises as to whether a question is one of substance or not, that question shall be treated as one of substance unless otherwise decided by the Assembly by the majority required for decisions on questions of substance.

9. When a question of substance comes up for voting for the first time, the President may, and shall, if requested by at least one fifth of the members of the Assembly, defer the issue of taking a vote on that question for a period not exceeding five calendar days. This rule may be applied only once to any question, and shall not be applied so as to defer the question beyond the end of the session.

10. Upon a written request addressed to the President and sponsored by at least one fourth of the members of the Authority for an advisory opinion on the conformity with this Convention of a proposal before the Assembly on any matter, the Assembly shall request the Sea-Bed Disputes Chamber of the International Tribunal for the Law of the Sea to give an advisory opinion thereon and shall defer voting on that proposal pending receipt of the advisory opinion by the Chamber. If the advisory opinion is not received before the final week of the session in which it is requested, the Assembly shall decide when it will meet to vote upon the deferred proposal.

Only state parties which have consented to be bound are members of the Assembly. Paragraph (2) has a difficult provision. The western world did not want to have a costly organization and so they fought against the authority meeting every year in annual session. The 3rd world insisted that they need the Assembly being the plenary organ to meet annually and in special sessions as may be decided by the Assembly.

Another innocuous but important paragraph is paragraph (3) “. Sessions shall take place at the seat of the Authority unless otherwise decided by the Assembly” this means that if any state was going to invite the assembly to hold the meeting in its country, it would bear the cost of hosting. This ensured that the sessions of the Authority annually would only take place in Montego Bay Jamaica.

Paragraph 10 Advisory opinion on issues of the Assembly.

Power and assertion Article 160

Article 160

POWERS AND FUNCTIONS

1. The Assembly, as the sole organ of the Authority consisting of all the members, shall be considered the supreme organ of the Authority to which the other principal organs shall be accountable as specifically provided for in this Convention. The Assembly shall have the power to establish general policies in conformity with the relevant provisions of this Convention on any question or matter within the competence of the Authority. (The Assembly was to be the main organ and all other organs would be answerable to the Assembly, which would be the organ to establish general policies with conformity to the activities in the area.)

2. In addition, the powers and functions of the Assembly shall be:

(a) to elect the members of the Council in accordance with article 161;

(b) to elect the Secretary-General from among the candidates proposed by the Council;

(c) to elect, upon the recommendation of the Council, the members of the Governing Board of the Enterprise and the Director-General of the Enterprise;

(d) to establish such subsidiary organs as it finds necessary for the exercise of its functions in accordance with this Part. In the composition of these subsidiary organs due account shall be taken of the principle of equitable geographical distribution and of special interests and the need for members qualified and competent in the relevant technical questions dealt with by such organs;

(e) to assess the contributions of members to the administrative budget of the Authority in accordance with an agreed scale of assessment based upon the scale used for the regular budget of the United Nations until the Authority shall have sufficient income from other sources to meet its administrative expenses;

(f) (i) to consider and approve, upon the recommendation of the Council the rules, regulations and procedures on the equitable sharing of financial and other economic benefits derived from activities in the Area and the payments and contributions made pursuant to article 82, taking into particular consideration the interests and needs of developing States and peoples who have not attained full independence or other self-governing status. If the Assembly does not approve the recommendations of the Council, the Assembly shall return them to the Council for reconsideration

in the light of the views expressed by the Assembly;

(ii) to consider and approve the rules, regulations and procedures of the Authority, and any amendments thereto, provisionally adopted by the Council pursuant to article 162, paragraph 2 (o)(ii). These rules, regulations and procedures shall relate to prospecting, exploration and exploitation in the Area, the financial management and internal administration of the Authority, and, upon the recommendation of the Governing Board of the Enterprise, to the transfer of funds from the Enterprise to the Authority;

(g) to decide upon the equitable sharing of financial and other economic benefits derived from activities in the Area, consistent with this Convention and the rules, regulations and procedures of the Authority;

(h) to consider and approve the proposed annual budget of the Authority

submitted by the Council;

(i) to examine periodic reports from the Council and from the Enterprise and special reports requested from the Council or any other organ of the Authority;

(j) to initiate studies and make recommendations for the purpose of promoting international co-operation concerning activities in the Area and encouraging the progressive development of international law relating thereto and its codification;

(k) to consider problems of a general nature in connection with activities in the Area arising in particular for developing States, as well as those problems for States in connection with activities in the Area that are due to their geographical location, particularly for land-locked and geographically disadvantaged States;

(l) to establish, upon the recommendation of the Council, on the basis of advice from the Economic Planning Commission, a system of compensation or other measures of economic adjustment assistance as provided in article 151, paragraph 10;

(m) to suspend the exercise of rights and privileges of membership pursuant to article 185;

(n) to discuss any question or matter within the competence of the Authority and to decide as to which organ of the Authority shall deal with any such question or matter not specifically entrusted to a particular organ, consistent with the distribution of powers and functions among the organs of the Authority.

Compare the assembly with the following article

SUB-SECTION C. THE COUNCIL

Article 161

COMPOSITION, PROCEDURE AND VOTING

1. The Council shall consist of 36 members of the Authority elected by the Assembly in the following order:

(a) four members from among those States Parties which, during the last five years for which statistics are available, have either consumed more than 2 per cent of total world consumption or have had net imports of more than 2 per cent of total world imports of the commodities produced from the categories of minerals to be derived from the Area, and in any case one State from the Eastern European (Socialist) region, as well as the largest consumer;

(b) four members from among the eight States Parties which have the largest investments in preparation for and in the conduct of activities in the Area, either directly or through their nationals, including at least one State from the Eastern European (Socialist) region;

(c) four members from among States Parties which on the basis of production in areas under their jurisdiction are major net exporters of the categories of minerals to be derived from the Area, including at least two developing States whose exports of such minerals have a substantial bearing upon their economies;

(d) six members from among developing States Parties, representing special interests. The special interests to be represented shall include those of States with large populations, States which are land-locked or geographically disadvantaged, States which are major importers of the categories of minerals to be derived from the Area, States which are potential producers of such minerals, and least developed States;

(e) eighteen members elected according to the principle of ensuring an equitable geographical distribution of seats in the Council as a whole, provided that each geographical region shall have at least one member elected under this subparagraph. For this purpose, the geographical regions shall be Africa, Asia, Eastern European (Socialist), Latin America and Western European and Others.

2. In electing the members of the Council in accordance with paragraph 1, the Assembly shall ensure that:

(a) land-locked and geographically disadvantaged States are represented to a degree which is reasonably proportionate to their representation in the Assembly;

(b) coastal States, especially developing States, which do not qualify under paragraph 1 (a), (b), (c) or (d) are represented to a degree which is reasonably proportionate to their representation in the Assembly;

(c) each group of States Parties to be represented on the Council is represented by those members, if any, which are nominated by that group.

3. Elections shall take place at regular sessions of the Assembly. Each

member of the Council shall be elected for four years. At the first election, however, the term of one half of the members of each group referred to in paragraph 1 shall be two years.

4. Members of the Council shall be eligible for re-election, but due regard should be paid to the desirability of rotation of membership.

5. The Council shall function at the seat of the Authority, and shall meet as often as the business of the Authority may require, but not less than three times a year.

6. A majority of the members of the Council shall constitute a quorum.

7. Each member of the Council shall have one vote.

8. (a) Decisions on questions of procedure shall be taken by a majority of the members present and voting.

(b) Decisions on questions of substance arising under the following provisions shall be taken by a two-thirds majority of the members present and voting, provided that such majority includes a majority of the members of the Council: article 162, paragraph 2, subparagraphs (f); (g); (h); (i); (n); (p); (v); article 191.

(c) Decisions on questions of substance arising under the following provisions shall be taken by a three-fourths majority of the members present and voting, provided that such majority includes a majority of the members of the Council: article 162, paragraph 1; article 162, paragraph 2, subparagraphs (a); (b); (c); (d); (e); (I); (q); (r); (s); (t); (u) in cases of non-compliance by a contractor or a sponsor; (w) provided that orders issued there under may be binding for not more than 30 days unless confirmed by a decision taken in accordance with subparagraph (d); article

162, paragraph 2, subparagraphs (x); (y); (z); article 163, paragraph 2; article 174, paragraph 3; Annex IV, article 11.

(d) Decisions on questions of substance arising under the following provisions shall be taken by consensus: article 162, paragraph 2(m) and (o); adoption of amendments to Part XI.

(e) For the purposes of subparagraphs (d), (f) and (g), "consensus" means the absence of any formal objection. Within 14 days of the submission of a proposal to the Council, the President of the Council shall determine whether there would be a formal objection to the adoption of the proposal. If the President determines that there would be such an objection, the President shall establish and convene, within three days following such determination, a conciliation committee consisting of not more than nine members of the Council, with the President as chairman, for the purpose of reconciling the differences and producing a proposal which can be adopted by consensus. The committee shall work expeditiously and report to the Council within 14 days following its establishment. If the committee is unable to recommend a proposal which can be adopted by consensus, it shall set out in its report the grounds on which the proposal is being opposed.

(f) Decisions on questions not listed above which the Council is authorized to take by the rules, regulations and procedures of the Authority or otherwise shall be taken pursuant to the subparagraphs of this paragraph specified in the rules, regulations and procedures or, if not specified therein, then pursuant to the subparagraph determined by the Council if possible in advance, by consensus.

(g) When the issue arises as to whether a question is within subparagraph (a), (b), (c) or (d), the question shall be treated as being within the subparagraph requiring the higher or highest majority or consensus as the case may be, unless otherwise decided by the Council by the said majority or by consensus.

9. The Council shall establish a procedure whereby a member of the Authority not represented on the Council may send a representative to attend a meeting of the Council when a request is made by such member, or a matter particularly affecting it is under consideration. Such a representative shall be entitled to participate in the deliberations but not to vote.

The assembly is supreme, one state one vote. Section 162 is on the Council of 36 which was called the executive arm of the authority. It had power to formulate specific policy to be pursued by the Authority. The assembly would formulate general policy and the council would deal with specifics. The council has a special aspect which has to do with the problem of producing treaties in important issues, like the Convention where a lot of governments are participating and which should enter into force as soon as possible. How was the Law of the Sea to enter into force? Some suggested 25 instrumental ratifications, others suggested 15, others 40 and others 50 until it became clear that what was required was to bring the convention as a whole into force i.e. even the part of the convention which creates the new international organization. If the convention was ratified by 25 instruments how were they going to get the council with 36 members. Then it was decided that it would need 60 ratifications.

Article 308

ENTRY INTO FORCE

1. This Convention shall enter into force 12 months after the date of deposit of the sixtieth instrument of ratification or accession.

2. For each State ratifying or acceding to this Convention after the deposit of the sixtieth instrument of ratification or accession, the Convention shall enter into force on the thirtieth day following the deposit of its instrument of ratification or accession, subject to paragraph 1.

3. The Assembly of the Authority shall meet on the date of entry into force of this Convention and shall elect the Council of the Authority. The first Council shall be constituted in a manner consistent with the purpose of article 161 if the provisions of that article cannot be strictly applied.

4. The rules, regulations and procedures drafted by the Preparatory Commission shall apply provisionally pending their formal adoption by the Authority in accordance with Part XI.

5. The Authority and its organs shall act in accordance with resolution II of the Third United Nations Conference on the Law of the Sea relating to preparatory investment and with decisions of the Preparatory Commission taken pursuant to that resolution.

Article 308 - the figure 60 was considered to be high enough to capture the possibility of having enough states that would qualify in order to have the council. 60 was the ideal number of ratification as it was not too high and not to small. The council of 36 of qualitative representation was the basis for requiring a high number for ratification. The council was to be established simultaneously when the convention came into force.

Article 163

ORGANS OF THE COUNCIL

1. There are hereby established the following organs of the Council:

(a) an Economic Planning Commission;

(b) a Legal and Technical Commission.

2. Each Commission shall be composed of 15 members, elected by the Council from among the candidates nominated by the States Parties. However, if necessary, the Council may decide to increase the size of either Commission having due regard to economy and efficiency.

3. Members of a Commission shall have appropriate qualifications in the area of competence of that Commission. States Parties shall nominate candidates of the highest standards of competence and integrity with qualifications in relevant fields so as to ensure the effective exercise of the functions of the Commissions.

4. In the election of members of the Commissions, due account shall betaken of the need for equitable geographical distribution and the representation of special interests.

5. No State Party may nominate more than one candidate for the same Commission. No person shall be elected to serve on more than one Commission.

6. Members of the Commissions shall hold office for a term of five years. They shall be eligible for re-election for a further term.

7. In the event of the death, incapacity or resignation of a member of a Commission prior to the expiration of the term of office, the Council shall elect for the remainder of the term, a member from the same geographical region or area of interest.

8. Members of Commissions shall have no financial interest in any activity relating to exploration and exploitation in the Area. Subject to their responsibilities to the Commissions upon which they serve, they shall not disclose, even after the termination of their functions, any industrial secret, proprietary data which are transferred to the Authority in accordance with Annex III, article 14, or any other confidential information coming to their knowledge by reason of their duties for the

Authority.

9. Each Commission shall exercise its functions in accordance with such guidelines and directives as the Council may adopt.

10. Each Commission shall formulate and submit to the Council for approval

such rules and regulations as may be necessary for the efficient conduct of the Commission's functions.

11. The decision-making procedures of the Commissions shall be established by the rules, regulations and procedures of the Authority. Recommendations to the Council shall, where necessary, be accompanied by a summary on the divergencies of opinion in the Commission.

12. Each Commission shall normally function at the seat of the Authority and shall meet as often as is required for the efficient exercise of its functions.

13. In the exercise of its functions, each Commission may, where appropriate, consult another commission, any competent organ of the United Nations or of its specialized agencies or any international organizations with competence in the subject-matter of such consultation.

The sub committees of the councils i.e. the Economic Planning Commission and the and Legal and Technical Commission. These two sub committees were meant to assist the council of 36 in formulating the specific goal.

Where was the Enterprise to be located? It was argued that the Authority should be located away from the Authority. The Enterprise was to be located at the seat of the Authority. Article 170 is to that effect.

Article 170

THE ENTERPRISE

1. The Enterprise shall be the organ of the Authority which shall carry out activities in the Area directly, pursuant to article 153, paragraph 2(a),as well as the transporting, processing and marketing of minerals recovered from the Area.

Five things to consider

It was necessary to agree on one body that would control activities in the area the western world would have preferred the Council to do that since that is the one they would control but the negotiations gave the Assembly to be the supreme organ to which all other organs are accountable.
It was also clear that the Assembly itself would not have the knowledge and the power to give the details that would be necessary for addressing the issues in this new venture of seabed mining therefore a Council which combined all interests and qualitative representation was considered and then given an opportunity to perform its duties by relying on two technical committees.
The question of transfer of technology in reasonable and commercial terms was settled when member states accepted that obligation by agreeing to Annex III Article 5 and also in the main body of the text dealing with transfer of technology something that they had objected to all along.
The conference succeeded in producing the law that was to govern activities in the area therefore made good the promise that the area can only be exploited in accordance with the law being established. There was already a moratorium saying that the area was to be the common heritage of mankind and therefore it had to succeed.
Because of that there was no automatic or assured access to seabed mining by anybody who had money and technology to do it except through the law established. The United States that had wanted to have assured access to seabed mining was not pleased. In the end and for the reason of not having assured access because of the mining code that was produced by the conference the US rejected the convention and voted against it. When it was brought for adoption, US and Venezuela voted against the United Nations Convention on the Law of the Sea.

The Enterprise established as the operational arm of the Authority in answer to the question: Who may exploit the area.

Basic conditions established to facilitate and permit the exploitation of the seabed.

This was an area where the transfer of technology was done: in Annex 3,
Article 5, paragraph3

Fair and reasonable terms min transferring technology; make the technology available to the Authority. If you have it, if you are going to get it from somebody else get it for the authority.

Article 4: who qualifies

Article 13: financial arrangements. Financial terms to mine the seabed.

Land-based producers: protecting them excessive seabed mining.

Article 155 Production policies of the seabed, the levels established to be reviewed from time to time. Periodic review – after five years after coming into force and review conferences. Article 155 was controversial but has now become a regular method of tackling thorny issues:

Article 155

THE REVIEW CONFERENCE

1. Fifteen years from 1 January of the year in which the earliest

commercial production commences under an approved plan of work, the Assembly shall convene a conference for the review of those provisions of this Part and the relevant Annexes which govern the system of exploration and exploitation of the resources of the Area. The Review Conference shall, consider in detail, in the light of the experience acquired during that period:

(b) whether, during the 15-year period, reserved areas have been exploited in an effective and balanced manner in comparison with non-reserved areas;

(d) whether monopolization of activities in the Area has been prevented;

(e) whether the policies set forth in articles 150 and 151 have been fulfilled; and

(f) whether the system has resulted in the equitable sharing of benefits derived from activities in the Area, taking into particular consideration the interests and needs of the developing States.

2. The Review Conference shall ensure the maintenance of the principle of the common heritage of mankind, the international regime designed to ensure equitable exploitation of the resources of the Area for the benefit of all countries, especially the developing States, and an Authority to organize, conduct and control activities in the Area. It shall also ensure the maintenance of the principles laid down in this Part with regard to the exclusion of claims or exercise of sovereignty over any part of the Area, the rights of States and their general conduct in relation to the Area, and their participation in activities in the Area in conformity with this Convention, the prevention of monopolization of activities in the Area, them use of the Area exclusively for peaceful purposes, economic aspects of activities in the Area, marine scientific research, transfer of technology,

protection of the marine environment, protection of human life, rights of coastal States, the legal status of the waters superjacent to the Area and that of the air space above those waters and accommodation between activities in the Area and other activities in the marine environment.

3. The decision-making procedure applicable at the Review Conference shall be the same as that applicable at the Third United Nations Conference on the Law of the Sea. The Conference shall make every effort to reach agreement on any amendments by way of consensus and there should be no voting on such matters until all efforts at achieving consensus have been exhausted.

5. Amendments adopted by the Review Conference pursuant to this article shall not affect rights acquired under existing contracts.

Organs of the Authority

Organize and control the activities in the Area

Article 159: the Assembly, the organ in which every state party to the convention is represented.

Fight over the authority meeting every year. Third world pressed for annual meetings. And important is article 3: must take place at the seat of the Authority.

Article 159

COMPOSITION, PROCEDURE AND VOTING

1. The Assembly shall consist of all the members of the Authority. Each member shall have one representative in the Assembly, who may be accompanied by alternates and advisers.

3. Sessions shall take place at the seat of the Authority unless otherwise decided by the Assembly.

5. A majority of the members of the Assembly shall constitute a quorum.

6. Each member of the Assembly shall have one vote.

7. Decisions on questions of procedure, including decisions to convene special sessions of the Assembly, shall be taken by a majority of the members present and voting.

The Assembly is supreme: one state one vote. Contrast with Council: 36 members-consisting of 4 members consumers of the sebead, 4 members with the largest investment in activities of the seabed, 4 members of land-based consumers, 6 members of developing countries with special interest, states with large populations, state major importers of minerals, 18 members according to regional representation. That was the formular for choosing a council of 36. This is the Executive Arm of the Authority (Article 162)

Article 160

POWERS AND FUNCTIONS

2. In addition, the powers and functions of the Assembly shall be:

(a) to elect the members of the Council in accordance with article 161;

(b) to elect the Secretary-General from among the candidates proposed by the Council; (c) to elect, upon the recommendation of the Council, the members of the Governing Board of the Enterprise and the Director-General of the Enterprise;

(d) to establish such subsidiary organs as it finds necessary for the

exercise of its functions in accordance with this Part. In the composition of these subsidiary organs due account shall be taken of the principle of equitable geographical distribution and of special interests and the need for members qualified and competent in the relevant technical questions dealt with by such organs;

(h) to consider and approve the proposed annual budget of the Authority submitted by the Council;

(i) to examine periodic reports from the Council and from the Enterprise and special reports requested from the Council or any other organ of the Authority;

(m) to suspend the exercise of rights and privileges of membership pursuant to article 185;

Article 308

ENTRY INTO FORCE

1. This Convention shall enter into force 12 months after the date of deposit of the sixtieth instrument of ratification or accession.

paragraph 1.

4. The rules, regulations and procedures drafted by the Preparatory Commission shall apply provisionally pending their formal adoption by the Authority in accordance with Part XI.

Article 163

ORGANS OF THE COUNCIL

1. There are hereby established the following organs of the Council:

(a) an Economic Planning Commission;

(b) a Legal and Technical Commission.

4. In the election of members of the Commissions, due account shall be taken of the need for equitable geographical distribution and the representation of special interests.

5. No State Party may nominate more than one candidate for the same Commission. No person shall be elected to serve on more than one Commission.

6. Members of the Commissions shall hold office for a term of five years. They shall be eligible for re-election for a further term.

9. Each Commission shall exercise its functions in accordance with such guidelines and directives as the Council may adopt.

10. Each Commission shall formulate and submit to the Council for approval such rules and regulations as may be necessary for the efficient conduct of the Commission's functions.

12. Each Commission shall normally function at the seat of the Authority and shall meet as often as is required for the efficient exercise of its functions.

[Articles 164 describe their functions]

Its principle place of business will be sited at Montego Bay, Jamaica:

THE ENTERPRISE

2. The Enterprise shall, within the framework of the international legal personality of the Authority, have such legal capacity as is provided for in the Statute set forth in Annex IV. The Enterprise shall act in accordance with this Convention and the rules, regulations and procedures of the Authority, as well as the general policies established by the Assembly, and shall be subject to the directives and control of the Council.

3. The Enterprise shall have its principal place of business at the seat of the Authority.

4. The Enterprise shall, in accordance with article 173, paragraph 2, and Annex IV, article 11, be provided with such funds as it may require to carry out its functions, and shall receive technology as provided in article 144 and other relevant provisions of this Convention.

It was necessary to agree on one body that will control activities in the Area. Western world would have preferred the Council but the negotiations ended with the Assembly being the supreme organ. It was also clear that the Assembly would not have the knowledge necessary.

Reliance on the two technical committee

The question on the transfer of technology in reasonable and commercial terms was settled when member states accepted that obligation by agreeing to the annex 3 article 5 and also in the main body of the text dealing with technology (something they had all along object to).

4. the conference succeeded in producing the law that was to govern activities in the area and therefore made good the area can only be exploited according to the law being established. Because of that there was not automatic or assured access to seabed mining by everybody who had the money and technology to do it except through the law established.

The US wanted to go in and out as they wanted into the seabed were angry because of the mining code and therefore the US rejected the convention; they voted against it. US and Venezuela voted against the Convention.

LAW NOTES

Wednesday, May 4, 2022

LAW OF THE SEA

CODIFICATION AND PROGRESSIVE DEVELOPMENT.

The Law of the Sea Convention

DEFINITION OF THE HIGH SEA.

INNOCENT PASSAGE.

SCIENTIFIC RESEARCH.

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