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Part XI of the Law of the Sea Convention and Third States: Some General Observations

Published online by Cambridge University Press:  16 January 2009

Stephen Vasciannie
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On 30 April 1982, after almost a decade of careful negotiations at the Third U.N. Conference on the Law of the Sea, the Law of the Sea Convention was adopted by the positive votes of 130 States. In one of its main sections, Part XI, the Convention sets out a detailed regime for the exploration and exploitation of the deep seabed and its resources and firmly places deep seabed mining under the regulatory control of the International Seabed Authority, to be established in Jamaica. However, as is well known, the United States and certain other Western countries have adopted a negative posture towards various aspects of Part XI and, for this reason, they are unlikely to ratify the 1982 Convention in the near future. Against this background, the question whether the provisions in Part XI may be binding even vis-à-vis non-parties to the LOSC has assumed considerable importance in contemporary international law.

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The Cambridge Law Journal , Volume 48 , Issue 1 , March 1989 , pp. 85 - 97
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Copyright © Cambridge Law Journal and Contributors 1989

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References

1 Referred to as UNCLOS III hereafter.

2 Sometimes (and hereafter) referred to as the LOSC.

3 UNCLOS III, Official Records, Vol. XVII, 154–155. Four States voted against the Convention and 17 abstained.

4 In keeping with the terminology used at the UNCLOS III, the deep seabed will sometimes be referred to as “the Area” in the present work.

5 Throughout the latter stages of the UNCLOS III, most of the developing countries channelled their views on deep seabed issues through the Group of 77. Since its formation in 1964, the Group, which derives its name from the fact that it was originally composed of 77 States, has negotiated on behalf of the developing countries in various international fora. By the time of the UNCLOS III, its membership had grown to over 120 States. For a general discussion on the Group, see Savant, , The Group of 77: Evolution, Structure, Organisation (1981)Google Scholar.

6 See, e.g., Letter dated 24 April 1979 from the Chairman of the Group of 77 to the President of the UNCLOS III, UN Doc. A/CONF. 62/77, in UNCLOS III, Offical Records, Vol. XI, p. 80; Letter dated 23 August 1979, UN Doc. A/CONF. 62/89, ibid., Vol. XII, p. 70; Letter dated 29 August 1980, UN Doc. A/CONF. 62/106, ibid., Vol. XIV, p. 111; Statement by Fiji on behalf of the Group of 77, ibid., Vol. IX, p. 103; Final Economic Declaration adopted by the Conference of Ministers of Foreign Affairs of the Non-Aligned Countries, Luanda, Angola, 4–7 September 1985, in UN Doc. A/40/854 and Corr. 1; Statement by the Chairman of the Group of 77 to the Preparatory Commission (13 August 1984) UN Doc. LOS/PCN/48.

7 See, for instance, Statement made by the U.S.S.R. on 23 April 1983, in UN Doc. A/38/175.

8 See, e.g., Statement by the U.S.A. in UNCLOS III, Official Records, Vol. IX, p. 104; Statement by the U.S.A. in response to Statement by the Chairman of the Group of 77, UN Doc. A/CONF. 62/89, ibid. Vol. XII, p. 111; U.K: Statement by John MacGregor, Parliamentary Under-secretary of State, Department of Industry, H.C. Debs., Vol. 3, cols. 842–9, 29 April 1981, Italy: Statement by the Italian delegation to the UNCLOS III, dated 7 March 1982, in UN Doc. A/CONF. 62/WS 37; Federal Republic of Germany: Statement dated 9 March 1982, ibid.; France: Statement in UNCLOS HI, Official Records, Vol. IX, p. 106; Japan: Statement, ibid., Vol. XIV, p. 7; recent assertions of the Western position in the General Assembly are to be found in UN Doc. A/40/PV.110 (1985) and UN Doc. A/41/PV.58;

9 U.S.A.: Deep Seabed Hard Mineral Resources Act, 1980, ILM, Vol. 19 (1980), p. 1003Google Scholar; U.K.: Deep Seabed Mining (Temporary Provisions) Act, 1981, ILM, Vol. 20 (1981), p. 1228Google Scholar; F.R.G.: Act of Interim Regulation of Deep Seabed Mining, 1980, ibid., p. 393; France: Law on the Exploration and Exploitation of the Mineral Resources of the Deep Seabed, 1981, ibid., Vol. 21 (1982), p. 808; Japan: Law on Interim Measures for Deep Sea-bed Mining, 1982, ibid., Vol. 22 (1983), p. 102.

10 Agreement concerning Interim Arrangements relating to Polymetallic Nodules of the Deep Seabed, 1982, ibid., Vol. 21 (1982), p. 950; Provisional Understanding Regarding Deep Seabed Mining, 1984, ibid., Vol. 23 (1984), p. 1354.

11 From the extensive literature in this area, see, e.g. Brown, , San Diego Law Review, Vol. 20 (1983), p. 521Google Scholar; Kronmiller, , The Lawfulness of Deep Seabed Mining, Vol. 1 (1980), esp. Chapters 3 and 4Google Scholar; Jaenicke, Volkerrecht als Rechtsordnung, Internationale Gerichtsbarkeit, Menschenrechte, Festschrift fur Herman Mosler, p. 249; cf. de Aréchaga, Jiménez, Recueil des Cours, Vol. 159 (1978–1981), pp. 32–33, 228–230Google Scholar; Biggs, , Ocean Development and International Law, Vol. 8 (1980), p. 223CrossRefGoogle Scholar; Dyke, Van and Yuen, , San Diego Law Review, Vol. 19 (1982), p. 493Google Scholar.

12 Art. 34, Vienna Convention on the Law of Treaties. In its commentary on the pacta tertiis rule, the I.L.C. stated that “(t)here is abundant evidence of the recognition of (this) rule in State practice and in the decisions of international tribunals, as well as in the writings of jurists”: Report of the ILC on the Second Part of its Seventeenth Session and on its Eighteenth Session, in 1966 Yb. ILC, Vol. II, p. 226Google Scholar.

13 Art. 38, Vienna Convention. Generally, see also Reports of the ILC on the Second Part of its Seventeenth and on its Eighteenth Session, op. cit. (previous note), at pp. 230–231; Fitzmaurice, , Fifth Report on the Law of Treaties in Yb.ILC (1960), Vol. II, pp. 80 and 94–96Google Scholar; Baxter, , BY1L, Vol. 41 (1965–1966), p. 275Google Scholar.

14 I.C.J. Reports 1969, p. 3Google Scholar.

15 For the application of the North Sea criteria to the LOSC as a whole, see also Lee, , AJIL, Vol. 77 (1983), p. 541, esp. at pp. 561–566CrossRefGoogle Scholar.

16 I.C.J. Reports 1969, p. 42Google Scholar.

17 Law of the Sea Bulletin (No. 10) November 1987. The UN Council for Namibia has also ratified the Convention: ibid.

18 The Convention will enter into force 12 months after the 60th ratification: LOSC, Art. 308.

19 I.C.J. Reports 1969, p. 43Google Scholar.

20 For the PIP resolution, see Resolution II (Governing Preparatory Investment in Pioneer Activities Relating to Polymetallic Nodules) of the Final Act of the UNCLOS III, Doc. A/CONF. 62/121. Among developed States, France, Japan and the USSR have been registered as pioneer investors: see UN Docs. LOS/PCN/97–99, and LOS/PCN/L.55, January 6 1988. India was registered as the first pioneer investor in August 1987: see UN Doc. LOS/PCN/94 of October 9 1987 and Corr. 1 of October 23 1987.

21 Supra, note 9.

22 I.C.J. Reports 1969, p. 41Google Scholar.

23 Supra, note 3 and accompanying text.

24 I.C.J. Reports 1951, p. 116 at 131Google Scholar. Generally, see also Akehurst, , BY1L, Vol. 47 (1974–1975), p. 1 at pp. 23–27Google Scholar; Fitzmaurice, ibid., Vol 30 (1953), p. 1 at pp. 24–26; Brownlie, , Principles of Public International Law (3rd. ed. 1979), pp. 10–11Google Scholar; Sep. op. de Castro, Fisheries Jurisdiction Case (U.K. v. Iceland), Merits, Judgment, I.C.J. Reports 1974, p. 3 at pp. 91–92. CfGoogle Scholar. Charney, , BYIL Vol. 56 (1985), p. 1Google Scholar.

25 See, e.g., McNair, Law of Treaties, Chap. 14; McNair, J. in the South-West Africa Case, I.C.J. Reports, 1950, p. 128 at p. 153Google Scholar; Fitzmaurice, , in BYIL, Vol. 27 (1950), pp. 8–10Google Scholar; Rousseau, Principes généraux du droit international public, pp. 462–464 and 477–484.

26 Waldock, , Third Report on the Law of Treaties (1964)Google Scholar, U N Doc. A/CN.4/167 and Add. 1–3 (Draft Article 63), in 1964 Yb.ILC, Vol. II, p. 26.

27 See, e.g., Elias, ibid., Vol. 1 p. 97; El Erian, ibid; Jimènez d e Arèchaga, p. 100; Castrén, p. 101; Tunkin, p. 103. Cf. Rosenne, p. 103.

28 In its Report to the General Assembly for 1964, the Commission stated: “As the theory of treaties creating objective regimes was controversial and its acceptability to States somewhat doubtful, the Commission concluded that to recognize that such treaties create special legal effects for non-parties would be premature at the present state of the development of international relations”: ibid., Vol. II, p. 185.

29 See Waldock, supra, note 26, at pp. 26–31, and the examples cited therein.

30 Ibid., especially at p. 31, para. (13).

31 I.C.J. Reports 1949, p. 174Google Scholar.

32 Ibid., p. 185.

33 See Brownlie, , Recueildes Cours, Vol. 162 (1979–1), p. 245 at 296–297 (brief reference)Google Scholar.

34 Although the rate of ratification has only been moderate, over 150 States had signed the Convention by the closing date for signatures: see Status of the U.N. Convention on the Law of the Sea (Office of the Special Representative of the Secretary-General for the Law of the Sea), pp. ii and 5.

35 For references to “States”, see e.g., LOSC, Arts. 137(1), 137(3), 138, 140, 141, 148; for “States Parties”, see, e.g., Arts. 139, 143, 144(2), 156.

36 I.C.J. Reports 1949, p. 174 at pp. 175, 177 and 184Google Scholar.

37 Supra., p. 90 and especially note 28.

38 Reparations Case, I.C.J. Reports 1949, p. 174 at pp. 177–179Google Scholar. For an incisive comment on whether it was actually necessary for the I.C.J. to attribute “personality” to the United Nations in order to reach its decision in this case, see E. Lauterpacht, Recueil; des Cours, Vol. 152 (1976—IV), p. 381 at p. 407.

39 See generally LOSC, Part XI, Section 4.

40 See also LOSC, Art. 176.

41 Cf., for instance, the decision of the U.S.A. not to join in the League of Nations.

42 See Declaration incorporating the Gentlemen's Agreement approved by the General Assembly at its 2169th Meeting: A/PV.2169.

43 Generally, see Peru, on behalf of the Group of 77, in UNCLOS III, Official Records, Vol. XVn, p. 3; Declaration of the Group of 77 to the Preparatory Commission, LOS/PCN/5, 11 April 1983; U.S.S.R.: A/40/PV.110 and A/41/PV.58; Czechoslovakia, UNCLOS III, Official Records, Vol. XVII, p. 27, para. 33. See also Oxman, , in Koers, and Oxman, (eds.) The 1982 Convention on the Law of the Sea (Proceedings of the Seventeenth Annual Conference of the Law of the Sea Institute, 1984), p. 675Google Scholar, cf. Lee, op. cit. note (15), at pp. 566–567.

44 For authority on the status of these rules in customary law, see, e.g., The Fisheries Case (United Kingdom v. Norway), I.C.J. Reports, 1951, p. 116Google Scholar.

45 See, e.g., Sep. op. de Ardchaga, Jiménez, Tunisial Libya Continental Shelf Case, I.C.J. Reports 1982, p. 18 at p. 115, para. 54Google Scholar; de Aréchaga, Jiménez, in Makarczyk, (ed.) Essays in International Law in Honour of Judge Manfred Lochs (1984), p. 575 at pp. 583–585Google Scholar; Burke, , Ocean Development and International Law, Vol. 9 (1981), p. 289 at pp. 289–290CrossRefGoogle Scholar.

46 I.C.J. Reports 1982, p. 18, at 74, para. 100Google Scholar.

47 Ibid., 1985, p. 13, esp. at 32–34.

48 I.C.J. Reports 1984, p. 246Google Scholar.

49 Ibid., p. 294.

50 Ibid.

51 Supra., pp. 93–94.

52 This principle was recently affirmed by the I.C.J. in the Nicaragua Case (Merits), I.C.J. Reports 1986, p. 14, especially at paras. 172–182Google Scholar.

53 See, e.g., Resolutions 37/66 (1982), 38/59A (1983), 39/73 (1984), 40/63 (1985) and 41/34 (1986).

54 LOSC, Art. 218.

55 A general discussion on the questions of passage through international straits and archipelagos in customary law is beyond the scope of this article.

56 For recent judicial reference to the doctrine of estoppel in international law, see the Gulf of Maine Case, I.C.J. Reports 1984, p. 246 at pp. 303 ff., especially para. 30Google Scholar; see also Arbitral Award Made by the King of Spain, I.C.J. Reports 1960, p. 192 at p. 213Google Scholar; the Temple of Preah Vihear Case, ibid., 1962, p. 6 at p. 32; North Sea Continental Shelf Cases, ibid., 1969, p. 4 at p. 26. Generally, see Bowett, , BYIL, Vol. 33 (1957), p. 176Google Scholar; MacGibbon, , ICLQ, Vol. 7 (1958), p. 468CrossRefGoogle Scholar; Lauterpacht, H., The Development of International Law by the International Court (1958), pp. 168–172Google Scholar.