The UN Convention on the Law of the Sea and Customary Law *

Por Alexei Zinchenko**

1. General Comments

It is probably not of interest to this Workshop for me to discuss at great length the extent to which the Convention may be considered a compilation of customary norms of international law. However, some general remarks may prove useful to put matters in perspective.

It would be erroneous, in my opinion, to classify the Convention as a collection of norms of customary law - there are too many entirely new provisions in the Convention which involve important principles.

There are two important elements which make up customary international law: i) substantial and uniform State practice and ii) opinio juris, i.e. the feeling that the practice is felt by those who follow it to be an obligatory one.

As to when a practice has been followed long enough to constitute State practice, it is useful to cite the following dictum of the International Court of Justice in the North-Sea continental shelf cases:

"Although the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary international law on the basis of what was originally a purely conventional rule, an indispensable requirement would be that within the period in question, short though it might be, State practice, including that of States whose interests are specifically affected, should have been both extensive and virtually uniform in the sense of the provision invoked - and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved."

In the light of the definition of customary international law, it is useful to examine the development of State practice in relation to the Convention. Undoubtedly, the 1982 Convention has considerably influenced State practice. Many of the concepts and norms embodied in it are being adopted in the national legislation of States.

While a few States at the time of signature of the Convention expressed their reservations on certain specific provisions of Part XI of the Convention and sought its improvement, all who signed the Convention, however, accepted the package. In 1994, of course, the Agreement on Part XI was concluded (see Part VIII(2)(a) of this presentation for further discussion), and today we have 135 ratifications or accessions. Can one consider that individual parts of this Convention stand alone? Can some provisions can be selected as reflecting customary international law, some not? Can certain elements of the mini-package be separated from other elements which form part of that package?

I think it is worthwhile to recall in this respect what Ambassador Tommy Koh of Singapore, President of the Third UN Conference on the Law of the Sea, said in his closing statement at the last meeting of the Conference on 10 December 1982 at Montego Bay, Jamaica:

"The argument that, except for Part XI the Convention codifies customary law or reflects existing international practice is factually incorrect and legally insupportable. The regime of transit passage through straits used for international navigation and the regime of archipelagic sea-lanes passage are only two examples of the many new concepts in the Convention. Even in the case of article 76, on the continental shelf, the article contains new law in that it has expanded the concept of the continental shelf to include the continental slope and the continental rise. This concession to the broad-margin States was in return for their agreement to revenue-sharing on the continental shelf beyond 200 miles. It is therefore my view that a State which is not a party to this Convention cannot invoke the benefits of article 76".

Clearly, many questions arise when one considers the subject of customary international law in relation to the UN Convention on the Law of the Sea. In my view, it is not possible at this stage to provide clear answers. Rather than argue the point of what is and what is not customary international law, it is in the interest of all to have clear and certain law by common consent. The best hope for this is UNCLOS. It would be difficult to repeat the achievements of this Convention if we were to begin anew or to rely on unclear assertions that something is or is not customary international law. I firmly believe that the Convention is the best point of reference for what the law of the sea should be today.

2. State Practice

Let us now look at some of the important subject areas of State practice.

(a) Territorial Sea Limits

In 1958 there were 42 States that claimed a limit of three nautical miles; 17 States claimed a limit of twelve nautical miles; and 3 States claimed a 200 nautical miles territorial sea. Eleven other States had limits between three and twelve miles.

In the year 2000 there are 135 States, which claim a twelve-mile limit, the limit prescribed by the Convention, and only 9 States which continue to claim a territorial sea extending beyond 12 nautical miles. Thus of the 140 coastal States and 4 other coastal entities, 135 have claims within the 12 nautical mile limit.

(b) Exclusive Economic Zone

In the case of the exclusive economic zone, which is a relatively new concept in international law, in 1977 there were 24 States that had claimed a 200-mile exclusive economic zone. This number has increased today to 110 States. There are 14 States, which have fishing limits of 200 nautical miles or. In several cases the geographical circumstances do not permit the States to extend the claims beyond those limits.

The practice of States shows total compliance with the provisions of UNCLOS. There are altogether 124 States, which have an exclusive economic zone or a fishing limit of up to 200 nautical miles. Some States combine the two zones, while others have one or the other depending on different circumstances. The figure for fisheries zones only reflects the States which do not have exclusive economic zones and whose fisheries zones extend beyond the limits of their territorial sea.

The development in State practice of the 200 nautical mile exclusive economic zone or fishing zone is very interesting. While the concept itself was espoused in Africa, Asia and Latin America, it is the industrialized countries that gave a major thrust to the 200 nautical mile economic zone concept in State practice. Between 1976 and 1979 alone there were some 15 claims for a 200 nautical mile fisheries zone and at least 3 claims for a 200 nautical mile exclusive economic zone by countries from East and West Europe, North America and Japan. These included Belgium, Canada, Denmark, Federal Republic of Germany, France, German Democratic Republic, Iceland, Ireland, Japan, Netherlands, Norway, Poland, Portugal, Spain, Sweden, United Kingdom, United States and the USSR.

(c) Continental Shelf

With regard to the continental shelf jurisdiction, the change from the 1958 Convention to the Convention is slower. In some cases the 200 nautical mile Exclusive Economic Zone claim covers the extent of jurisdiction possible over the continental shelf. In other cases the limits under the new criteria cannot be fixed without first undertaking the necessary survey of the continental margin. It is very difficult to ascertain precisely how many States would be entitled to continental shelf jurisdiction beyond the 200 nautical mile exclusive economic zone. The data we have at hand reveals that 24 States base their claims on a 200 metre isobath plus exploitability criteria. Forty-four States use 200 nautical miles plus the continental margin;

It is difficult to draw any firm conclusions on the basis of these statistics because of the uncertainties I have referred to already. I can, however, say that at least 24 States are still using the 1958 Continental Shelf Convention criteria; and 44 States are using the Convention limits. Of the 22 States which do not define the limits of their continental shelf either by reference to the criteria established in UNCLOS or those of the 1958 convention, only 2 are not in conformity with article 76 of UNCLOS.

(d) Archipelagic States

Claims under the archipelagic States provisions of the Convention have steadily increased to 14 States. While most of these claims were inspired by the Convention, it is not possible to say precisely how many of them are consistent with the provisions of the Convention without a detailed study of the legislation, and in particular same of the technical aspects involved such as the method of drawing of baselines. We know of the situation regarding the Philippines and the undertaking of the Philippines Government to conform to the Convention, following a number of protests that were lodged against the declaration made by that State at the time of ratification. The 14 States referred to above are the following: Antigua and Barbuda, Cape Verde, Comoros, Fiji, Indonesia, Kiribati, Maldives, Mauritius, the Philippines, Sao Tome and Principe, Solomon Islands, Trinidad and Tobago, Tuvalu and Vanuatu.

(e) International Deep Seabed Area

With respect to the deep seabed mining part of the Convention, while recognizing that certain important differences persist, some of which are matters of detail rather than of principle, it can be fairly said that there is a broad acceptance in State practice of the fundamentals of the regime. They include the following principles:

* that the resources of the deep seabed are the common heritage of mankind;
that these should be developed for the benefit of mankind; and
that an international seabed authority, which shall issue contracts for the development of the resources, should administer the international seabed area.

* The Preparatory Commission for the International Seabed Authority and for the International Tribunal for the Law of the Sea has already acted in 1987 and onwards to implement this regime on behalf of the future Seabed Authority. In 1987 by unanimous decisions it has granted rights to mine sites to four pioneer investors from France, India, Japan, the USSR, thus marking the beginning of the development of State practice with respect to this part of the Convention.

(f) Conclusions on the developments in State practice

With the kind of concrete information that we have before us, it is evident that the United Nations Convention on the Law of the Sea has caused a revolution in State practice. The Convention though highly ambitious in its goals, is proving to be effective in practice.

However, with over 140 States enacting national legislation, problems remain. A slight deviation in one direction or other can upset the delicate balance achieved in the Convention after long years of negotiations.

Whether such deviations are deliberate or inadvertent does not matter. It is important to arrest the practice before it becomes widespread. On the other hand, it is difficult to insist that sovereign States rectify the errors. This can only be done through the actions of other States, especially those that are Parties to the Convention.

There are basically three ways of encouraging consistent and uniform application of the Convention. Firstly, through the promotion of a better understanding of the provisions of the Convention and especially through an appreciation of the legislative history of some of the delicately balanced and highly sensitive provisions. The Division for ocean Affairs and the Law of the Sea is actively involved in this process.

Secondly, through protests by other States against inconsistent application of the provisions of the Convention. This is perhaps one of the most effective ways of promoting uniform and consistent State practice. Protests not only draw the attention of the State concerned to its deviation from the accepted norms, but also serve as a warning to other States, which may be tempted, in the same direction. Protests have yielded positive results in bringing about greater conformity with the Convention in a number of cases. I should add that it is helpful to other States if such protests were publicized.

Thirdly, acceptance and recognition of the norms in the Convention as part of the current international law as has been done in a number of recent cases by the International Court of Justice and also in a number of arbitral tribunals.

The Court in the Gulf of Main Case noted that certain provisions of the Convention concerning the continental shelf and the exclusive economic zone were adopted by the conference without objection, and may be regarded "as consonant at present with general international law on the question".

The Arbitral Tribunal in the Dispute between Canada and France in respect of filleting within the Gulf of Saint Lawrence made certain observations. With respect to the status of the exclusive economic zone, the Tribunal observed that the Third United Nations Conference on the Law of the Sea and the practice followed by States on the subject of sea fishing, even while the Conference was in progress, had crystallized. It sanctioned a new international rule to the effect that in its exclusive economic zone, a coastal State has sovereign rights in order to explore and exploit, conserve and manage natural resources.

The reliance of the court on the Convention, whether direct or indirect, is a significant development with regard to the implementation of the principles embodied in the Convention, and consequently to the evolution of the attitude of States towards the orderly regulation of ocean space in accordance therewith.

Nota Bene: El copyright de este artículo pertenece al autor.

* El artículo es parte de la presentación titulada "The Global Vision of the Law of the Sea System, and its Relation with the Commission on the Limits of the Continental Shelf", hecha en el Seminario "Plataforma Continental" realizado en Buenos Aires del 13 al 17 de noviembre de 2000.

Acknowledgement and disclaimer: The views expressed in this statement are those of the author and do not necessarily reflect the views of the United Nations or the Commission on the Limits of the Continental Shelf.
The presenter would also like to note that the research conducted for the purposes of this presentation was based primarily on UN documents, reports, studies, information notes, speeches and other sources drafted by staff members, past and present, of the United Nations Office for Ocean Affairs and the Law of the Sea, now known as the Division for Ocean Affairs and the Law of the Sea of the United Nations Office of Legal Affairs. Among them special acknowledgement must go to Ambassador Satya N. Nandan, formerly UN Under-Secretary General in charge of the Office for Ocean Affairs and the Law of the Sea, currently Secretary-General of the International Seabed Authority.

** El autor es el Secretario de la Comisión de Límites de la Plataforma Continental de la División para Asuntos Oceánicos y Derecho del Mar de la Oficina de Asuntos Legales de Naciones Unidas.

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