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    • Sep 12, 2020
    • 4 min read

What is UNCLOS?

By: Kay Rollins


One of the most important global agreements might just be one you’ve never heard of.


Signed in 1982, UNCLOS (the United Nations Convention on the law of the sea) was established after decades of negotiations at the United Nations to create a global framework for the use of the oceans. Among the dozens of rules set forth in the agreement, UNCLOS serves to determine coastal maritime borders, create a framework for dispute settlements, and encourage environmental protection. As the first formal international agreement on the law is the seas, UNCLOS “lays down a comprehensive regime of law and order in the world's oceans and seas establishing rules governing all uses of the oceans and their resources. It enshrines the notion that all problems of ocean space are closely interrelated and need to be addressed as a whole.” Currently, UNCLOS has 167 member nations. 14 more UN member states have signed, but not ratified, the agreement, including the United States of America. By not joining the convention, some analysts argue that tensions between China and the US have risen, or that international trade is threatened.


Prior to the establishment of UNCLOS in the 1980s, “Freedom of Seas”, a 17th-century maritime concept, was the norm. Under freedom of the seas, no nation could have sovereign control over an area of ocean. As a result, the line between where a country’s coastal waters ended and the international sea began was blurry. UNCLOS, however, clearly defines the maritime borders of nations. Under UNCLOS, countries with ocean borders have (starting from the shore) 12 nautical miles of territorial waters and 200 miles of an EEZ, or exclusive economic zone. In the territorial waters, a country has complete control over everything. In the EEZ, a country has special rights about the exploration and exploitation of any resources. EEZs are therefore key for commercial development: For the oil industry, 30% of oil production comes from offshore drilling— mainly within EEZs. Other offshore mining, drilling, or fishing operations similarly depend on the rights established in UNCLOS.


However, with the complex nature of these maritime laws, UNCLOS requires a dispute resolution mechanism. Although the details may vary, one UNCLOS member can sue another for any violations of the treaty. This lawsuit (although not legally binding because UNCLOS is a treaty) is decided by a panel of international judges at the Permanent Court of Arbitrations. The PCA then releases a decision that provides recommended actions to the defendant and/or prosecution nation. However, although UNCLOS has a dispute resolution mechanism, they have no enforcement mechanism. This can lead to some nasty problems. For example: Because the EEZs extend from any coastline of a nation, China has started building artificial islands (most notably the Spratly islands) in the disputed waters of the South China Sea in order to extend their claims to the natural resources and trade routes in the region. In response, the Philippians, one of the other major claimants to the waters, sued China for their violations of UNCLOS in 2013. The United Nations then decided in favor of the Philippines and declared that China has no historical rights to the waters, that they had violated UNCLOS article 94 concerning maritime security, and that UNCLOS does not cover these new man-made islands. However, China rejected the ruling, declaring their continued control over the region. While there is no official punishment from the UN, the international community continues to pressure China to abide by UNCLOS: last week, an article in Lawfare magazine encouraged nations to block china’s possible leadership at the International Maritime agency; Some southeast Asian nations (notably Vietnam) have threatened new rounds of litigation; The rejection of the tribunals’ decision is often cited by the United States as a reason why we must maintain our military presence in the South China Sea, despite the rising risk of conflict.


Ironically, although the United States continues to condemn China for not following the ruling, the US is also one of the few countries that aren’t a part of UNCLOS itself. For the most part, the question is still open as to if the US should join UNCLOS (shout-out to the PF Septober 2018 resolution). Proponents of UNCLOS argue that American accession could legitimize the agreement and force China to comply. But however, they also say that we could use UNCLOS to claim larger areas for oil drilling or mining in our EEZ. Opponents argue that America has more freedom to use our military without having to comply with UNCLOS rules about patrolling waters and that subjecting ourselves to the rule of the UN threatens our sovereignty. Even though the US isn’t a part of UNCLOS, it follows almost all the rules laid out by the treaty, to begin with, meaning joining UNCLOS might not have major impacts on our policy decisions; UNCLOS, like many UN-lead efforts, is largely about perception and promises— not policy— in the international community.


The final important thing to keep in mind about UNCLOS is that it is also an environmental document. The agreement mandates that countries try to protect the environment during any use of the ocean, and therefore also provides a platform for vital further discussion about new environmental regulations. But this isn’t enough: the New Strait Times, a newspaper focusing on the South China Sea, wrote three weeks ago that, despite UNCLOS’s regulations, “ ever faster ships and refrigeration have enabled exploitation of deeper and more distant areas, resulting in an increasing loss of biodiversity and depletion of fish stocks.” As a result, the international community (particularly the UN) may need to consider an update to the agreement to address the environmental issues for those “areas beyond national control” throughout the oceans.


As we enter an era of international isolationism, protecting agreements like UNCLOS is key. UNCLOS may not be perfect, but that doesn’t mean it’s not critical to understanding the way our oceans are protected. From EEZs to China to America to the Environment, UNCLOS influences a wide range of issues. So keep it in mind next time you give a speech— it could just be important.


Discussion questions:

  • Should the US fully join UNCLOS?

  • How can the UN enforce the PCA’s ruling on China?

  • Should UNCLOS be updated to reflect increasing environmental threats?

  • With more connectivity and trade, are EEZs outdated?

  • Does the UN still have legitimacy?


Sources Used/Further Reading:


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