1.0 Introduction
The United Nations Convention on the Law of the Sea (UNCLOS) has been established for many years. There have been several amendments to the convention throughout the course of its life. However, there may be a need to revisit the total convention. With an ever changing world there is a need to keep up with the demands of all maritime nations.
Recent activities in the Arctic, as well as other economic activity that are governed by the convention such as fishing, have brought the Law of the Sea convention to the public's attention. Within the coming years International News Online (2010) reports that "As the polar ice cap continues to shrink, the five nations surrounding the Arctic Ocean are hurriedly positioning themselves for what is shaping up to be one of the biggest geopolitical brawls of the coming years." This paper will explore the need for stronger mandates on several key components of the convention.
2.0 History & Ratification
In the 17th century the regulations governing the seas was a concept identified as the 'freedom of the seas'. This regulation identified the territorial waters of a country to be a cannon shot from the shore, approximately 3 nautical miles (Wikipedia, 2010).
In the early 20th century, many nations expressed their desire to extend their boundary for economic purposes. Such activities as fishing and mineral exploration were identified as valuable commodities to a country's wealth (UN Online, 2007).
In 1930 a conference regarding this issue was held in Hague but no agreement was reach. The United States later extended their control of natural resources to its continental shelf under the direction of President Truman and customary international law. Other nations quickly followed.
The first conference on UNCLOS was held in 1956 in Geneva. While there were conventions drafted and signed at this conference, there was no decision on the breadth of territorial waters. The UNEP Shelf Program (2009) identified that from this conference the four treaties signed that were signed were as follows:
Convention on the Territorial Sea and Contiguous Zone
Convention on the Continental Shelf
Convention on the High Seas
Convention on Fishing and Conservation of Living resources of the High Seas
The main issues that were discussed and agreed upon during UNCLOS III was the limitations set on each area. The discussion concluded with definitions placed on internal waters, territorial waters, archipelagic waters, contiguous zone, exclusive economic zone, and the continental shelf (UN Online, 2007).
UNCLOS was not ratified until 1994. The most notable country that has not ratified the agreement is the United States. The reason behind this choice was related to part XI of the convention. According to Citizens for Global Solutions, this treaty is discouraging to the economy and security of the United States (Citizens for Global Solutions Online, 2007).
3.0 Oil Exploration & Exploitation
The main issue surrounding oil exploration and exploitation is the devastating effects of an oil spill, especially in Arctic waters. It can be argued that UNCLOS regulations have not provided a clear means of enforcement or clear penalties that have to be enforced. The regulations direct nations to create their own mandates for oil and gas discoveries and to regulate theses mandates. UNCLOS only provides a framework for the development of these regulations.
When oil and gas exploration and exploitation take place on a neighbouring continental shelf, UNCLOS does not provide direction on handling oil pollution; especially in cases where pollution occurs outside of a nation's jurisdiction and later drifts into their waters. It has become increasing important for neighbouring nations to establish regulations and framework to deal with incident that occur on neighbouring shelves.
Caitlyn Antrim, Executive Director, Rule of Law Committee for the Oceans has indicated that two of the areas of high concern regarding exploration and pollution risks are the Arctic and the Gulf of Mexico. Both of these areas have high levels of oil and gas activity and both areas have neighbouring nations that are involved in the activity. Antrim suggested that many of the regulations needed to govern these issues have not yet been written in the convention. In reference to the recent BP oil rig explosion in the Gulf of Mexico, Ms Antrim was quoted as saying "Given the possibility that [these activities] could not only occur in the U.S. shelf, but on the shelves of our neighboring countries, it seems like this should be a call for us to engage in that negotiation of standards, both with regards to the Gulf of Mexico and with regard to the Arctic, which are the two areas that have the greatest potential for offshore oil and gas development," (Council on Foreign Relations Online, 2010).
4.0 Fishing
The ratification of UNCLOS III has identified some additional deficiencies that have had a great effect on most fishing nations. In particular, Canada has been affected by some of these issues relating to fish stocks.
When the convention was ratified 95% of all fishing was conducted inside the Economic Exclusive Zone (EEZ) of each country (Brad Caldwell, Fisherman Life Magazine, 2002). With the ratification of the EEZ, many popular fishing zones around the world became inaccessible. This meant an increased demand on fishing on the high seas. This lead to many migratory and moratory fish stocks being left unprotected. On the Grand Banks off the east coast of Canada, there is a shallow continental shelf that extends beyond the EEZ of Canada. The EEZ outlined the boundary limits by which Canada could protect its stocks. However, this provided the right for foreign vessels to fish on the continental shelf of the Canada, where moratory species, such as cod and turbot, frequent. Cod fish and turbot had been a commercial fishery in Canada for most of the 20th century (Canadian Encyclopedia Online, 2010).
Brad Caldwell (2007) reported that fishing boundaries have become a topic of great concern to fishing nations. In 1977 Canada was a leader in establishing a 200 nautical mile fishing boundary. Other nations, such as the United States, quickly followed Canada's lead. This boundary was soon incorporated into UNCLOS in 1982.
Canada has also been an activist against fishing outside of the 200 mile boundary where moratory fish stocks are being targeted. The reason for acting to protect waters outside the 200 mile boundary is to protect the fish stocks that still exist in an effort to re-establish the fisheries. These actions have created conflict amongst several nations as any waters outside the EEZ are classed as high seas under UNCLOS and there has been no clause that limits the harvesting of fish stocks.
One way that Canada has been dealing with the issues surrounding the fish stock outside the EEZ is to participate in such organizations such as the Northwest Atlantic Fisheries Organization (NAFO). NAFO inspectors board Fisheries and Oceans vessels and conduct inspection on foreign fishing vessels outside of the EEZ. Inspectors are responsible for ensuring compliance with NAFO regulations pertaining to such things as amount and type of catch (Department of Fisheries and Oceans Canada, 2010).
5.0 Arctic Waters
The signing of UNCLOS III has lead to some current issues regarding sovereignty and land claims in the Arctic. Russia, Canada, Norway and the United States are all interested in staking claims to the Arctic for various reasons. One reason, as mentioned previously, is oil and gas development and an additional reason is the opportunity to establish shipping lanes through the Northwest Passage. For the past two summers the United States and Canada have been working together in the Arctic mapping the seabed to establish claims to areas under UNCLOS (National Geographic News Online, 2005).
Canada is trying to establish that the Northern Passage is part of Canadian inland waterways and not international waters. There is concern regarding what will happen if Canada stakes a claim to the North Pole area and beyond as prescribed by the UNCLOS definitions of territorial and EEZ waters. The main concern lies with what action Russia will take if there is a strong possibility of oil and gas deposits in these areas. (CBC News Online, 2010).
There has been a discussions surrounding have a hard law approach to the Arctic versus the soft law approach of UNCLOS. One way that nations have approached the issues in the Arctic is to develop the Arctic Council. This is established amongst several nations and the people of communities within the Arctic Circle. This organization is a part of the soft law approach and is voluntary. However, critics are concerned that if the Arctic Council does not develop a legal framework that could soon become an obsolete force (Arctic Governance Online, 2010).
The main focus of the council is to deal with issues that could be problematic or design research for these areas. Rob Huebert of the Canadian Defence & Foreign Affairs Institute states "Without a stronger framework for co-operative management, the living resources of the Arctic are likely to suffer, essential habitat will be degraded, and the traditional subsistence way of life of many Arctic communities will be endangered," (Edmonton Journal Online, 2010).
With the increase of oil and gas leases by companies such as BP and Exxon, pressure will be placed on government to reevaluate the regulations pertaining to exploration in the Arctic regions. As well, seismic activity has been proposed within the area of Lancaster Sound, a marine protected area. Craig Stewart, Arctic Director of World Wildlife Canada, recently spoke to a parliamentary committee, regarding the issues. He stated that "Unlike the U.S., Greenland and Norway, Canada does not regulate the leasing process and permits drilling directly within marine protected areas and environmentally sensitive areas," (WWF Online, 2010).
6.0 Security
As previously discussed territorial waters are defined under UNCLOS. Under these definitions the rights of security agencies are allocated. The issue surrounding security is that UNCLOS provides the authority to each nations and this authority may not be sufficient to protect a country's waters.
Under the current regime, nations are only permitted to pursue vessels registered under their own nation's flag. However in some cases, there is an agreement between nations that allow them to board and pursue violator flying the flag of that country.
The main problems exist when an enforcement agency becomes aware of a ship that is trying to enter into its own nations waters smuggling or engaging in other illegal activities. As outlined in UNCLOS, Article 111: "The hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal State have good reason to believe that the ship has violated the law and regulations of that State. Such pursuit must be commenced when the foreign ship or one of its boats is within the international waters, the archipelagic waters, the territorial sea, or the contiguous zone if the pursuit has not been interrupted…..The right of hot pursuit ceases as soon as the ship pursued enters the territorial sea of its own State or of a third State." By this defintion, a nation can only pursue vessels until they enter the protection of there own nation. It is then the responsibility of the flag country to investigate the incident. This will in most cases result in very little prosecution to the subject vessel. Without prosecution for offedners there will be very little deterrent to cease such activities.
7.0 Conclusion
As outlined throughout this report, UNCLOS has provided the framework necessary to lay out legislation to protect a nation's resources. However the argument exists if the framework should be more stringent and firm in its direction?
The future of UNCLOS should follow a leadership and enforcement role that clearly outlines the law of the sea for each nation. This should help remove any unrest amongst neighbouring nations.
With an increase demand on the earths resources found under the seabed, there is a high probability of future wars amongst nations when land/sea claims are concerned. The ability of a nation to protect its citizens is by far the most important virtue.
