The common heritage of mankind: a view from the flagship bridge.  An open letter to the United States Senate by Captain  George Galdorisi, USN.

Introduction to UNCLOS III

One of the most important issues concerning the future of hydrography is the impact of the Third United Nations Convention on the Law of the Sea (UNCLOS III). From 1973 to 1982, this Convention was the subject of what were probably the most prolonged and intense multinational negotiations in history. With the possible exception of the United Nations Charter, the Convention which resulted is the most important international law of this century.

The Convention has reshaped, and will continue to reshape, the character of the marine sector. Prior to UNCLOS III, jurisdiction in the oceans was a simple black and white issue: states sovereignty was absolute to the jurisdictional boundary, outside of which freedom of the high seas was absolute. UNCLOS III brought major changes to both these long-standing concepts. Sovereign rights are now phased down through several zones. The Territorial Sea, innocent orial Sea, innocent passage through international straits, and expansion of partial sovereignty to 200 nautical miles in the Exclusive Economic Zone are all new concepts introduced in UNCLOS III which expand states sovereignty. At the same time UNCLOS III places many restrictions on freedom of the high seas, significantly through the principle of common heritage of mankind, and measures to protect and preserve the marine environment.

1967 - original goal • Ensure that proceeds from deep-sea mining of manganese nodules will be for the benefit all mankind.
1982 - Convention and Final Act • Vote on adoption: 130 for, 17 abstain, 4 against (Canada for)

• Signatories: 119 (including Canada)

• All 150 countries agree on rights and responsibilities in 5 zones

• Provision for dispute settling: International Tribunal on LOS

• Disagreement on International Seabed Authority

1983 - Preparatory Commission • Mandate to negotiate details of Sea Bed Authority and International Tribunal
1993 - Ratification clause • Each state must bring its domestic laws into conformance with UNCLOS, formally ratify UNCLOS, and deposit documents defining its territorial claims with the UN

• On 18 Nov 93 Guyana became 60th state to ratify

1994 - Convention in force • Convention came into force on 18 Nov 94 (Article 308 (1))
1996 - Shelf commission elected • Initial election of experts in geology, geophysics and hydrography to the Commission on the Limits of the Continental Shelf. This election is limited to states which have become party to the Convention.
Year n • Year in which a coastal state becomes party to the Convention.
Year n+10 • Latest date for that coastal state to submit particulars of continental shelf limit claims to the Commission on the Limits of the Continental Shelf.


UNCLOS III Evolution

The roots of UNCLOS III go back to the Challenger Expedition of the 1870s when it was first discovered that the deep sea floor is littered with baseball-sized polymetallic nodules, made up principally of iron and manganese, but with economically attractive copper nickel and cobalt content as well. By the mid-1960s, it appeared that the technology to min the technology to mine these nodules from the sea floor was available. This raised the international question - to whom do the resources of the ocean belong? Prevailing law - freedom of the high seas - argued for finders, keepers. It was rumoured that Howard Hughes’ ship the Glomar Explorer was engaged in nodule mining. This turned out to be a lie, to hide the fact that the ship was recovering a sunken Soviet nuclear submarine for the CIA. However the possibility that the untold wealth of the seabed would go to rich and powerful corporations with no benefits to the poor nations of the world led to the introduction in 1967 at the United Nations General Assembly of the concept of the Common Heritage of Mankind. From the beginning this was a concept that went to the heart of international differences in political as well as legal and economic perspectives. It is the antithesis of freedom of the high seas. It was the opening move in the negotiations surrounding UNCLOS III: negotiations, which continue, even today under the Preparatory Commission.

Although two conferences were held earlier, it was not until the 1973 conference that procedural practices were developed for the drafting of a new Convention. Due to the widely divergent interests on issues of such paramount importance, it was realized that resorting to traditional voting rules would be unsatisfactory. Consensus was therefore adopted as tfore adopted as the principal means by which decisions were to be taken.

The Conference decided that because of the large number of participants and sensitive issues involved, working groups would be more efficient than formal plenary sessions. Thus, much of the work took place in small informal meetings, but always on the basis of consensus. The working or negotiating groups were generally established on the basis of interest in a particular issue. In this respect, States did not coalesce within traditionally regional or political alignments. Rather they grouped themselves to face specific issues and to protect clearly identifiable interests, such as:

Coastal States wanted a legal rÈgime that would allow them to manage and conserve the biological and mineral resources within their national jurisdiction;

Archipelagic States wanted to obtain recognition for the new rÈgime of archipelagic waters;

Landlocked States were seeking general rules of international law that would grant them transit to and from the sea and rights of access to the living resources of their neighbouring States;

• Some industrialized nations wanted to have guarantied access to the sea-bed mineral resources beyond national jurisdiction within a predictable legal framework;

• Counp>

• Countries with strong land-based mining and minerals industries wanted assurances that the sea-bed mineral production would not undermine their economies or result in a ‘de facto’ monopoly;

Developing countries wanted to be more than silent witnesses to the acquisition of new knowledge of the oceans so that marine science and technology could be put at the service of all and not only of a limited number of very wealthy countries;

States bordering straits wanted to ensure that free passage would not result in damage to their marine environment or threats to their national security;

• Practically all nations wanted to preserve the freedoms of navigation, commerce, and communication;

Regional groupings had specific concerns pertinent to their region; and

• Finally, mankind as a whole needed to ensure that a new legal rÈgime would safeguard the marine environment against depredation or irrational use of non-renewable resources, the discharge or dumping of noxious substances into the oceans or the so-calle the so-called scientific tests that could affect the delicate balance of marine life.


3.1 UNCLOS III status

At the close of the tenth session in 1981, the Conference decided to revise the informal text, officially producing a Draft Convention. The ‘easy’ parts of the package had fallen into place. The intractable political questions remained. The Conference also adopted a timetable calling for the final decision-making session to be held in 1982. The five-week plan allowed time for negotiation of the remaining points to be resolved. However, after ninety weeks of work spanning a decade, on 23 April 1982, the Conference determined that all efforts to reach a consensus had been exhausted. Thus the machinery for the final decision making was set in motion. All the text in the Draft Convention and the four Resolutions that were before Resolutions that were before the Conference were the result of elaborate negotiations to ensure widespread and substantial support. However, on 30 April 1982, at the request of one delegation (the United States), the Conference had to abandon their consensus strategy and resort to voting on adoption or rejection of the whole Law of the Sea package. The result of that vote was 130 in favour, 4 against (Israel, Turkey, the United States and Venezuela), and 17 abstentions (Belgium, Italy, Luxembourg, the Netherlands, Spain, Thailand, United Kingdom, West Germany, and nine East European states).

In September the final version of the Convention was drafted. The Convention consists of 320 Articles (each about 1/4 to 1/2 a page long), organized into 17 Parts, having 49 Sections. In addition there are 11 Annexes with another 116 Articles. The first 10 Parts are the ‘easy’ ones on which there was nearly universal agreement:

• Territorial sea and contiguous zone
• Straits used for international navigation
• Archipelagic states
• Exclusive Economic Zone
• Continental shelf
• High seas
• RÈgime of islands
• Enclosed or semi-enclosed seas
• Right of access of land-locked states to and from seas and freedom of transit.

Part XI is called simply The Area, which is UNCLOS shorthand for the seabed and ocean floor and subsoil, beyan floor and subsoil, beyond limits of national jurisdiction. This is the longest section, and the most controversial, being the resting-place of the common heritage concept. It was the objections of the United States to this section, on the grounds that it is too regulatory and that it rewards those who have not earned or risked anything, that led to the breakdown of the consensus process and the April 1982 vote.

The remaining six Parts, while not as straightforward as the first 10, nonetheless were almost universally accepted through the consensus process:

• Protection and preservation of the marine environment
• Marine scientific research
• Development and transfer of marine technology
• Settlement of disputes
• General provisions
• Final provisions.

The final meeting of the Conference was held in Montego Bay, Jamaica, from 6 to 10 December 1982, at which time the Convention was opened for signature. On that first day, signatures from 119 delegations comprising 117 States, the Cook Islands (a self-governing associated State), and the United National Council for Namibia, were appended to the Convention. The majoConvention. The majority of States, which abstained in the April vote, signed the Convention in December. In addition, one ratification, that of Fiji was deposited that day. During the two years that the Convention remained open for signature, 157 nations signed. The fifteen who did not sign are a mixed bag: Albania, Ecuador, Federal Republic of Germany, Holy See, Israel, Jordan, Kiribati, Peru, San Marino, Syria, Tonga, Turkey, United Kingdom, United States, and Venezuela. The United States, United Kingdom and Germany refused to sign because of Part XV. The other twelve had a variety of different reasons for not signing.

According to Article 308 This Convention shall enter into force 12 months after the date of deposit of the sixtieth instrument of ratification or accession. In order to ratify, a state must first bring its domestic laws into conformance with UNCLOS III, deposit with the Secretary General of the United Nations hydrographic charts showing the jurisdictional limits it claims, and formally ratify the Convention. The Convention was opened for signature on December 10, 1982, and was ratified by Fiji on that date. The 60th state to ratify the Convention was Guyana, on 18 November 1993. The Convention came into force on 18 November 1994. On 13 November 1998, Belgium and Poland became the 129th and 130th nations to ratify. 64 United Nations member states still had not ratified as onot ratified as of that date, among them Canada and the United States.

 Number Date State
1 10 Dec 82


2 7 Mar 83 Zambia
3 18 Mar 83 Mexico
4 21 Mar 83 Jamaica
5 18 Apr 83 Namibia
6 7 Jun 83 Ghana
7 29 Jul 83 Bahamas
8 13 Aug 83 Belize
9 26 Aug 83 Egypt
10 26 Mar 84 CÙte d’Ivoire
11 8 May 84 Philippines
12 22 May 84 Gambia
13 15 Aug 15 Aug 84 Cuba
14 25 Oct 84 Senegal
15 23 Jan 85 Sudan
16 27 Mar 85 Saint Lucia
17 16 Apr 85 Togo
18 24 Apr 85 Tunisia
19 30 May 85 Bahrain
20 21 Jun 85 Iceland
21 16 Jul 85 Mali
22 30 Jul 85 Iraq
23 6 Sep 85 Guinea
24 30 Sep 85 Tanzania
25 19 Nov 85 Cameroon
26      3 Feb 86   Indonesia
27 25 Apr 86 Trinidad / Tobago
28 2 May 86 Kuwait
29       5 May 86 Yugoslavia
30 14 Aug 86 Nigeria
31 26 Aug 86 Guinea-Bissau
32 32 26 Sep 86 Paraguay
33 21 Jul 87 Yemen
34 10 Aug 87 Cape Verde
35 3 Nov 87 Sao Toma/Principe
36 12 Dec 88 Cyprus
37 22 Dec 88 Brazil
38 2 Feb 89 Antigua & Barbuda
39 17 Feb 89 Zaire
40 2 Mar 89 Kenya
41 41 24 Jul 89 Somalia
42 17 Aug 89 Oman
43 2 May 90 Botswana
44        9 Nov 90 Uganda
45 5 Dec 90 Angola
46 25 Apr 91 Grenada
47 29 Apr 91 Micronesia
48 9 Aug 91 Marshall Islands
49 16 Sep 91


50 8 Oct 91 Djibouti
51 24 Oct 91 24 Oct 91 Dominica
52 21 Sep 92 Costa Rica
53 10 Dec 92 Uruguay
54 7 Jan 93 St Kitts & Nevis
55 24 Feb 93 Zimbabwe
56 20 May 93 Malta
57 1 Oct 93 St Vincent & Grenadines
58 5 Oct 93 Honduras
59 12 Oct 93 Barbados
60 18 Nov 93 Guyana

A resolution accompanying the Convention established a Preparatory Commission for the International Sea-bed Authority and for the International Tribunal for the Law of the Sea (called PrepCom for short). This PrepCom has been meeting since 1983, officially to negotiate the details for implementing Part XI, but more importantly to continue the attempt to find a consensus about what Part XI should contain. A group of states with sea-bed mining capabilities (cryptically called the “expanded midnight group”) has been building diplomatic bridges between the United States and other non-signatories, and the states which strongly pushed for Part XI as it is (the so-called “group of 77”). Moderates on both sides are discussing changes to Part XI. There is some hope that the PrepCom negotiations will result in the compromises and consensus required for universal acceptance of the Convention, in the near future.

Aside from Part XI, opinion is divided as tinion is divided as to whether the other Parts of the Convention have, in fact, become accepted as customary international law. Some point to instances of erosion of this acceptance:

• the actions of Japan in salmon fishing
• declaration of 200 mile territorial seas by some South American countries
• restrictions placed by some states on rights of innocent passage for nuclear vessels.


3.2 Baselines and zones


The UNCLOS III Articles illustrated in this figure are:

Article 5: Normal Baseline

Except where otherwise provided in this Convention, the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State.

Article 7: Straight baselines

1. In localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured.

2. Where because of the pres2. Where because of the presence of a delta and other natural conditions the coastline is highly unstable, the appropriate points may be selected along the furthest seaward extent of the low-water line and, notwithstanding subsequent regression of the low-water line, the straight baselines shall remain effective until changed by the coastal State in accordance with this Convention.

3. The drawing of straight baselines must not depart to any appreciable extent from the general direction of the coast, and the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the rÈgime of internal waters.

4. Straight baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them or except in instances where the drawing of baselines to and from such elevations has received general international recognition.

5. Where the method of straight baselines is applicable under paragraph 1, account may be taken, in determining particular baselines, of economic interests peculiar to the region concerned, the reality and the importance of which are clearly evidenced by long usage.

6. The system of straight baselines may not be applied by a State in such a manner as to cut off the territorial sea of another Statea of another State from the high seas or an exclusive economic zone.

Article 17: Right of innocent passage

Subject to the Convention, ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea.

Article 19: Meaning of innocent passage

1. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with the Convention and with other rules of international law.

Article 33: Contiguous zone

1. In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal State may exercise the control necessary to:
(a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea;
(b) punish infringement of the above laws and regulations committed within its territory or territorial sea.

Article 56: Rights, jurisdict6: Rights, jurisdiction and duties of the coastal State in the exclusive economic zone

In the exclusive economic zone the coastal State has:
(a) sovereign rights for the purpose of exploring and exploiting, conserving and managing natural resources, whether living or non-living, of the waters superadjacent to the sea-bed and of the sea-bed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds;
(b) jurisdiction as provided for in the relevant provisions of this Convention with regard to:
(i) the establishment and use of artificial islands, installations and structures;
(ii) marine scientific research;
(iii) the protection and preservation of the marine environment;
(c) other rights and duties provided for in this Convention.

3.3 Continental shelf

UNCLOS III Article 76 defines many ways in which the outer boundary of the continental shelf may be established by a coastal state. It is widely misunderstood. Legal experts assume that the very specific technical provisions in this Article indicate that these provisions can be easily implemented. That is not true. Technical experts assume that these very difficult technical procedures have been included for some legal reasons. That also is not true. The wording of Article 76 appears to have developed from political process of consensus building that was at the foundation of the UNCLOS III negotiations.

Article 76: Definition of the continental shelf

1. The continental shelf of a coastal State comprises the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.

2. The continental shelf of a ccontinental shelf of a coastal State shall not extend beyond the limits provided for in paragraphs 4 to 6.

3. The continental margin comprises the submerged prolongation of the landmass of the coastal State, and consists of the seabed and subsoil of the shelf, the slope and the rise. It does not include the deep ocean floor with its oceanic ridges or the subsoil thereof.

4. (a) For the purposes of this convention, the coastal State shall establish the outer edge of the continental margin wherever the margin extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, by either:

(i) A line delimited in accordance with paragraph 7( 7.) by reference to the outermost fixed points at each of which the thickness of sedimentary rocks is at least 1 per cent of the shortest distance from such point to the foot of the continental slope; or

(ii) a line delineated in accordance with paragraph 7( 7.) by reference to fixed points not more than 60 nautical miles from the foot of the contineot of the continental slope.

(b) In the absence of evidence to the contrary, the foot of the continental slope shall be determined as the point of the maximum change in the gradient at its base.

5. The fixed points comprising the line of the outer limits of the continental shelf on the sea-bed, drawn in accordance with paragraph 4 (a)(i) and (ii), either shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured or shall not exceed 100 nautical miles from the 2500 metre isobath, which is a line connecting the depth of 2500 metres.

6. Notwithstanding the provisions of paragraph 5, on submarine ridges, the outer limit of the continental shelf shall not exceed 350 nautical from the baselines from which the breadth of the territorial sea is measured. This paragraph does not apply to submarine elevations that are natural components of the continental margin, such as its plateau, rises, caps, banks and spurs.

7. The coastal State shall delineate the outer limits of its continental shelf, where that shelf extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, by straight lines not exceeding 60 nautical miles in length, connecting flength, connecting fixed points, defined by co-ordinates of latitude and longitude.

8. Information on the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured shall be submitted by the coastal State to the Commission on the Limits of the Continental Shelf set up under Annex II on the basis of equitable geographical representation. The Commission shall make recommendations to coastal states on matters related to the establishment of the outer limits of their continental shelf. The limits of the shelf established by a coastal State on the basis of these recommendations shall be final and binding.

9. The coastal State shall deposit with the Secretary-General of the United Nations charts and relevant information, including geodetic data, permanently describing the outer limits of its continental shelf. The Secretary-General shall give due publicity thereto.

10. The provisions of this article are without prejudice to the question of delimitation of the continental shelf between States with opposite or adjacent coasts.

This article shows the importance in the delimitation process of obtaining enough information to adequately describe the bottom topography and geology. This information is required to define the continental shelf within the Law of the Sea. Each coastal state must sastal state must submit this information for evaluation to a Commission on the Limits of the Continental Shelf that consists of 21 experts in geology, geophysics and hydrography (UNCLOS III Annex II, Article 4). This commission is to be set up once UNCLOS III comes into force, with the initial election of these experts occurring no later than 18 months after the Convention comes into force.

There is an important time limit involved here (Annex II, Article 4). The latest date for a coastal state to submit its continental shelf claim, supported by convincing evidence, is 10 years after that state ratifies, or otherwise O to the Convention. This is a one-time window of opportunity, which is open for the next decade or so. After that the continental shelf “pie” will have been cut up. The information, which must be presented to the Commission on the Limits of the Continental Shelf, is likely to require extensive and detailed hydrographic and geological surveys of the seabed from the continental slope to the outer limits of any boundary claim. For example, in order to collect the geophysical survey data needed to determine and support a continental shelf claital shelf claim by Canada may take as many as 1000 survey vessel days for eastern Canada and as many as 10 field seasons for the Arctic.

In the spring of 1993, a two-day meeting was held of the United Nations Committee of Experts on the Definition of the Continental Shelf. The purpose of this meeting was to comment on the draft of a manual prepared by United Nations staff that describes in detail the issues surrounding Article 76 and the definition of the continental shelf. This manual was revised and published in late 1993 as one of a series of LOS “issues manuals” being produced by the UNCLOS documents office (tel 212-963-1234 x3940). Four such manuals have been produced so far (Baselines; Marine Scientific Research; High Seas Fishing; and Definition of the Continental Shelf).


Department of Fisheries and Oceans (1987) Canada’s Oceans ?? pages

Department of Fisheries and Oceans (1987) An Oceans Policy for Canada. 15 pages

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Mukherjee, P.K. (1989) Offshore Management. Department of Fisheries and Oceans. 56 pages.

United Nations (1979) Report of the group of experts on hydrographic surveying and nautical charting, 2nd United Nations Regional Cartographic Conference for the Americas, Mexico City. 33 pages.

United Nations (1982) The Law of the Sea: United Nations Convention on the Law of the sea., with Index and Final Act of the Third United Nations Convention on the Law of the Sea. 224 pages.

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Ingham, A.E. (1975) Sea surveying Wiley. Part 3 Sea surveying operations, Chapter 3 Marine geoscience pp 166-216.

Kennet, J.P. (1982). Marine geology Prentice-Hall. Chapter 2 Geophysics and ocean morphology; Chapter 10 Nearshore geological processes and the continental shelf pp 12-23 and 286-318.

The Open University (1978) Oceanography course Milton Keynes UK. Unit 2 The oceanic crust Unit 11 Introduction to sediments: nearshore environment Unit 12 Continental margins and ocean basins

Ross, D.A. (1988) Introduction to oceanography. Fourth Edition Prentice-Hall. Chapter 5 Marine geology and geophysics pp 85-150.

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