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UNCLOS, constitution of the oceans 40 years on
Some have argued that the convention gives too much power to coastal states and that it fails to adequately protect the rights of other nations with regard to the use of the oceans.
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he Center for International Law of the National University of Singapore (CIL NUS), the Australian National Centre for Ocean Resources and Security (ANCORS) and the University of Wollongong, Australia, with great support from the United States Department of State, jointly organized a workshop on maritime boundary delimitation early this month.
Engaging discussions among participants and speakers made me reflect on the legal basis of maritime boundary issues: The United Nations Convention on the Law of the Sea (UNCLOS). Forty years ago, on Dec. 10, 1982, UNCLOS was adopted. This marked a significant milestone in the history of international law of the sea, as it codified the rights and responsibilities of nations with respect to their use of the world's oceans.
UNCLOS is a comprehensive set of rules governing the use of the world's oceans. It covers a wide range of issues, including the rights and duties of nations with regard to the use of the oceans for navigation, fishing, mining and the protection of the marine environment. For its comprehensiveness, Prof. Tommy Koh, president of the third UN Conference on the Law of the Sea that produced UNCLOS, referred to UNCLOS as the Constitution of the Oceans.
One of the key provisions of UNCLOS is the establishment of a legal framework for the delimitation of maritime boundaries between nations. This is important because it helps to avoid conflicts over the use of the oceans and provides a mechanism for resolving disputes peacefully.
UNCLOS basically governs countries’ entitlement over maritime areas, the breadth of which is measured from their baselines/coastlines. Pursuant to UNCLOS, a coastal state is entitled to 12 nautical miles of territorial sea, 24 nautical miles of contiguous zone, 200 nautical miles of exclusive economic zones and continental shelf that can go beyond 200 nautical miles.
Due to their geographical configuration, there is no way a country can have all maritime zones it is entitled to without having them overlap with those of others. Here is where maritime boundary delimitation is required and UNCLOS provides provisions on how such boundaries should be settled.
UNCLOS also provides the establishment of an international tribunal, known as the International Tribunal for the Law of the Sea (ITLOS), which has the authority to adjudicate disputes between nations regarding the interpretation and application of the treaty. This helps to ensure that UNCLOS is applied consistently and fairly and provides a means for resolving disputes in a peaceful and orderly manner. While ITLOS is specifically established based on UNCLOS, cases related to the law of the sea can also be brought to the International Court of Justice in the Netherlands.
For Indonesia, UNCLOS is a special convention. Through UNCLOS, Indonesia’s aspiration to become an archipelagic state has been legally recognized. An archipelagic state consists of many islands that can legally claim maritime areas in between its islands as part of its territorial sovereignty. Before UNCLOS, those waters were part of international or high seas, in which foreign parties were not only free to pass through but also to utilize resources therein.
Together with some other countries like the Philippines, Indonesia was a champion in proposing the principle of an archipelagic state. It went through a long and winding road before it was finally agreed upon by the international community.
For Indonesia, the aspiration and struggle to be an archipelagic country started internally when then-prime minister, Djuanda Kartawidjaja, made a declaration in 1957 to claim waters between Indonesia’s islands as part of Indonesia’s territorial sovereignty. His declaration was followed by a long and tactical diplomacy by Indonesia’s best diplomats such as Mochtar Kusumaatmadja, Hasjim Djalal, Nugroho Wisnumurti, Budiman, Toga Napitupulu, Zuhdi Pane, Nelly Luhulima, Hardjuni, Adi Sumardiman and Wicaksono Sugarda.
The adoption of the principle of an archipelagic state in UNCLOS was part of their enduring effort that we should respect. On the 40th anniversary of UNCLOS, Indonesians need to reflect on this to understand how our predecessors have contributed significantly to shape the face of the world's law of the sea.
Despite its importance, UNCLOS is not without its critics. Some have argued that the convention gives too much power to coastal states and that it fails to adequately protect the rights of other nations with regard to the use of the oceans. Others have criticized the tribunal for being too slow and expensive and have called for the establishment of a more efficient and effective mechanism for resolving disputes.
While UNCLOS is one of the most widely ratified international conventions (168 parties), some important states, like the United States, have yet to do so. Another important country, China has an issue in complying with UNCLOS, even though it has ratified the convention since 1996. For example, China does not seem to comply with the 2016 Arbitral Tribunal’s decision on issues regarding the South China Sea that was made based on UNCLOS. This confirms that UNCLOS remains facing challenges in its implementation.
Despite these criticisms, UNCLOS remains a vital instrument for the promotion of peace and cooperation among nations with respect to the use of the world's oceans. As we mark its 40th anniversary, it is important to remember the significant role it has played in establishing a legal framework for the use of the oceans and to continue to work toward its effective implementation.
For the future, education on UNCLOS is vital. Workshops like the one conducted in Singapore earlier this month is a good example. Involving more disciplines such as geoscience (geography, geology, geodesy, geophysics) is vital since UNCLOS is a highly technical convention. Being a surveyor, I have seen first-hand how vital technical aspects are in implementing UNCLOS.
In conclusion, UNCLOS has been a crucial treaty for the governance of the world's oceans. It is not a perfect convention, but it is the most comprehensive one we have now. Its implementation requires good understanding and interdisciplinary collaboration. As we celebrate its 40th anniversary, it is important to remember its contributions and continue to work toward its effective implementation.
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The writer is a lecturer and a researcher on geospatial aspects of the law of the sea at the Department of Geodetic Engineering, Gadjah Mada University. He was a speaker of the CIL-ANCORS workshop “Maritime Boundary Delimitation: The Interplay between Geography and International Law” in Singapore on Dec. 6-8.
