By Brianna Elliott
On Tuesday, April 2, 2024, the Rethinking Diplomacy Program and Ocean Diplomacy Working Group hosted a webinar on the United Nations Convention on the Law of the Sea (UNCLOS), with Ambassador David Balton and David Freestone. Balton is the executive director of the U.S. Arctic Executive Steering Committee, which advances and coordinates and U.S. policies and activities in the Arctic region. He previously served as the Deputy Assistant Secretary for Oceans and Fisheries in the U.S. Department of State, attaining the rank of Ambassador in 2006, and is currently working for the White House Office of Science and Technology Policy. David Freestone, LLD, is the Executive Secretary of the Sargasso Sea Commission – an initiative led by the Government of Bermuda that he has directed since 2010. He is an Adjunct Professor/Visiting Scholar at the George Washington University Law School, a member of the Committee of Legal Experts of the Commission of Small Island States on International Law and Climate Change (COSIS), and Co-rapporteur of the International Law Association Committee on International Law and Sea Level Rise. Dr. John Virdin, an Assistant Professor of the Practice at Duke and Director of the Ocean and Coastal Policy Program at the Nicholas Institute for Environmental Policy Solutions, moderated the webinar. Both panelists spoke to the significance of UNCLOS in modern treaty-making, from both a diplomatic and marine conservation lens.
An innovative diplomatic success story
UNCLOS, adopted in 1982 and entered into force in 1994, serves as a constitution for the oceans. It includes guidelines for states’ navigational rights, maritime zones and boundaries, and procedures for maritime related disputes on the high seas. It now has 157 Signatories (159 Parties), but it is notably missing the U.S., Turkey, and Venezuela as signatories. The United States recognizes UNCLOS as customary international law, but it has never acceded to the treaty itself. UNCLOS is a masterpiece in international law and diplomacy — a package treaty that set the stage a myriad of ocean challenges to be addressed in forthcoming decades.
UNCLOS was adopted after almost ten years of intensive negotiations (1973-1982) — the longest negotiation in the history of the United Nations, according to Freestone. Negotiating UNCLOS was a novel process in international law and diplomacy for several reasons, including being the first time the Group of 77 – a coalition of developing nations with collective economic interests – negotiated together (this group now has 134 member countries). It is also a massive treaty, with 320 articles and 9 annexes. As a package deal, signatories had to accept the entire treaty without objection. UNCLOS has been through three iterations, UNCLOS I and II failed to pass, but the third iteration was approved. Currently, there are 157 signatories and 169 parties to the treaty, not including the United States.
During the third successful round of negotiations, the Maltese Ambassador, Arvid Pardo, proposed that the seabed and high seas (i.e. areas beyond 200 nautical miles (nm)) should be regarded as “the common heritage of mankind” — a concept with significant implications for the management of fisheries, seabed mining, and biodiversity conservation. Geopolitical dynamics, including the end of the Cold War and the dissolution of the USSR, among others, bore great influence on the development and ultimate passage of UNCLOS III, the current version of the treaty.“It was an innovative negotiating process…and very farsighted in many respects. Article 92 on the Protection of the Environment says states have an obligation to protect and preserve the marine environment. Full stop…that’s a very strong, very powerful statement for the seventies.” Freestone explained.
Today, the UNCLOS treaty is essentially the constitution for oceans and coastal areas — establishing maritime jurisdictions, calling for the freedom of navigation, and establishing a compulsory dispute settlement mechanism for the high seas. Notably, UNCLOS III established the 200-nm Exclusive Economic Zone, which gives states exclusive rights to fisheries, oil and gas, and seabed resources within this 200-nm limit (and some other jurisdiction zones). It also set aside the deep seabed (outside of 200nm) as part of the common heritage of mankind; with exploitation by states and commercial entitities to be managed under the International Seabed Authority (ISA). In addition to establishing the ISA, UNCLOS created other institutional bodies for managing specific aspects of the marine environment including the International Tribunal for the Law of the Sea and the Commission on the Limits of the Continental Shelf, and entrusted the International Maritime Organization with key oversight tasks related to marine shipping and pollution. While UNCLOS was very ambitious and forward looking, it did not – and could not, as Freestone notes – foresee or address all potential climate related issues. It also deferred other important areas of concern, such as fishery management and biodiversity conservation on the high seas.
U.S. involvement and future accession?
The U.S. has one of the most extensive exclusive economic zones in the world and the world’s largest navy, but it has never acceded to the UNCLOS treaty despite having taken an active role in UNCLOS negotiations. “The U.S. was looking to create a balance, something that allowed us to have reasonable rights in offshore areas but not infringe on the rights we also wished for our vessels. Indeed, the Law of the Sea Convention achieved both of those things. It codified this idea of the Exclusive Economic Zone out to 200nm and also a continental shelf out to 200, and it preserved freedom of navigation. This was a pretty attractive package….at least most people thought so.” said Ambassador Balton. “But one of the things that the U.S. objected to in the negotiations was a regime for the mining of the seafloor beyond national jurisdiction that would be regulated internationally, would require significant fees, the transfer of technology, and the sharing of some portion of proceeds.”
In 1994, many of these concerns were addressed and the treaty amended. The Clinton administration sent the agreement to the U.S. Senate for the Advice and Consent constitutionally required for accession. The Senate Foreign Relations Committee has tried to put UNCLOS forward three times for accession as currently amended – most recently in 2012 – but so far it has failed to win senate approval.
Although the U.S. is an observer to the Convention and acceded to other implementing agreements, in particular the 1994 UN Fish Stocks Agreement, the U.S. is largely on the outside looking in to UNCLOS. This creates “significant problems for us,” according to Ambassador Balton. For example, last December, the U.S. announced where it believed the outer limits of the U.S. continental shelf exist under UNCLOS’ framework of maritime jurisdictions (Figure 1). If the U.S. were a party to the treaty, it would have sent the scientific data supporting its claim to the Commission on the Limits of the Continental Shelf. If accepted by the commission, the U.S. claims would be final and binding. Instead, the U.S. has simply announced “to the world” where it believes its outer limits are. So far, the commission has not accepted this claim on the grounds that the U.S. is not party to the treaty. The U.S. is also disadvantaged with respect to growing competition for seabed mining claims. Ambassador Balton explained that the because the U.S. has not acceded to UNCLOS, it lacks standing to challenge jurisdictional claims from other countries, such as China’s claims in the South China Sea, and no U.S.-based company can participate in negotiations on seabed mining under the ISA. Stakeholders continue to put pressure on the Senate to approve UNCLOS, but it is still unclear if there are enough votes to get it through.
Figure 1. U.S. Extended Continental Shelf Regions as of 2023 (Image credit: U.S. Department of State)
Looking ahead
“The success of the treaty has been to settle a set of basic rules, most of which are followed most of the time, and it has allowed for subsequent agreements to help flesh out areas of concern that have arisen” said Balton. Recently, UNCLOS has been in the news due to the recent adoption in June 2023 on the third implementing agreement under UNCLOS, the Agreement under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction (BBNJ Agreement). Just last month, ITLOS issued an advisory opinion on climate change under UNCLOS finding that developed states must cut emissions faster than developing States — the first ruling of its kind under an international court. Today, “UNCLOS is still very powerful. It included provisions on atmospheric pollution, for example, which were not intended to cover greenhouse gases, but they are written in such a way that they arguably would,” says Freestone. “So UNCLOS provides a framework for future developments.”
This webinar was organized by Brianna Elliott, a PhD in the Marine Science and Conservation program, as part of the Ocean Diplomacy Working Group webinar series. The Ocean Diplomacy Working Group was conceived by RDP graduate fellow Brianna Elliott and launched in 2023 through a grant from Duke’s Office of Global Affairs that includes members from several schools and programs across Duke, including the Nicholas School of the Environment, Duke Law, the Duke Marine Lab. The group includes an interdisciplinary mix of students, faculty, and practitioners at Duke who are interested in the complex political and social issues, institutional arrangements, agreements, and negotiations involved in ocean diplomacy. Their goal is to improve connections between science, scholarly research, and the diplomatic process so that policy makers and diplomats have the most up to date scientific information as they craft policy and international agreements with enormous impact across ecosystems, cultures, national borders, and international fora. The Duke Rethinking Diplomacy Program is grateful for the longstanding support of the Josiah Charles Trent Memorial Foundation.
