A Decade of the Law of the Sea Convention: Is It a Success?
Freestone, David, The George Washington International Law Review
A great deal has been written about the process of finalizing the massive United Nations Convention on the Law of the Sea (LOSC) in Montego Bay, Jamaica in December 1982.1 The Third United Nations Conference on the Law of the Sea (UNCLOS III) was a protracted and historic process which evolved its own innovative decision-making procedure based on consensus and the now famous "package deal" approach to the finalization of a comprehensive treaty regime.2 The Convention itself contains 320 Articles with 9 Annexes. In the course of the nine years it took to finalize the text, UNCLOS III developed brand new legal concepts such as exclusive economic zones, archipelagic status for island states, the special status of the deep-sea bed, and the outer edge of the continental shelf. It created new institutions to regulate these concepts-an International Seabed Authority (ISA), a Commission on the Limits of the Continental Shelf (CLCS) and an International Tribunal on the Law of the Sea (ITLOS)-to act as an important part of the Convention's comprehensive dispute setdement system, designed in large part by Professor Louis Sohn, whom this volume commemorates.
Ambassador Tommy Koh, Chairman of the final session of UNCLOS III, declared the Convention the new "constitution for the oceans."3 And yet after the finalization of the text, the LOSC languished for twelve years before it attracted enough ratifications to come into force, and then only after the brokering of a new package deal, which fundamentally changed a number of its basic concepts. It is now more than a decade since that skillfully crafted 1994 "Implementation Agreement" was able to bring the treaty into force. The Convention now has 153 parties.4 It is certainly an appropriate time to ask the question posed by the organizers of this seminar in remembrance of Professor Sohn: has it been a success?
This paper attempts a broad brush assessment of this question, looking particularly at issues involving the marine environment and natural resource conservation and management. It will not attempt a comprehensive exposition of the complex regimes of the Convention, but rather will concentrate on issues that have arisen since the finalization of the text in 1982. This paper begins with issues that arose in the run up to the 1992 U.N. Conference on Environment and Development (UNCED) in Rio de Janeiro, and the subsequent development of the 1994 and 1995 "Implementation Agreements." Next, it will examine the Implementation Agreements themselves in order to assess the extent to which they demonstrate fundamental changes to the 1982 regime. This paper will then discuss a few important new developments that the UNCLOS drafters could not have envisaged-notably the discovery of new deep-sea living resources, but also new environmental impacts such as those from the transfer of ballast water between oceans. Finally, it will identify the most successful aspects, as well as the few issues the drafters did not foresee or perhaps misinterpreted.
THE LOSC REGIME AND THE IMPACT OF THE 1992 UN CONFERENCE ON ENVIRONMENT AND DEVELOPMENT
It is certainly true that the 1982 Convention reflects a much wider concern with the environmental dimension of marine regulation than its predecessors.5 Nevertheless, the primary change it introduced in the fisheries regime was to permit the enclosure of 200 nautical mile (nm) exclusive economic zones (EEZs), and much of the energy of the negotiations appears to have been directed towards ensuring that coastal states managed this resource in an effective way.6 In contrast, the high seas fishery regime is much less developed. According to E.D. Brown, its main objective is "to produce the maximum sustainable yield as qualified by a wide range of rather vague factors."7 Similarly, the LOSC regime covering stocks that move between EEZs and high seas is even more vague. Its provisions are essentially hortatory and it has been characterized as part of the "unfinished business" of the LOSC. …