Remembering Peace in a Time of War: Why International Law Matters More Than Ever | Manufacturing Peace
UNCLOS: An Instrument for Peace
by Nilüfer Oral
The ocean is a single, continuous body of water that connects continents, peoples, cultures and nature. For centuries it has provided humanity with sustenance and fluid highways of communication, making global trade possible, connecting Asian traders with Africa, the Middle East and Europe. While the ocean is the essence of life on earth, it has also been the backdrop of wars and conquest. Modern international law is traced to the violent conflict for dominion over the ocean and its resources. The now well-known Hugo Grotius, a young Dutch jurist, came to prominence to defend Dutch interests following the battle between Portugal and the Netherlands in the Strait of Malacca in 1603. His work Mare Liberum was the genesis of the principle of freedom of the high seas.
For centuries onward the conflict among States to control ocean space and its rich resources increased as the technological capacity of States to navigate and exploit the ocean also grew. The advancement of technology spurred greater competition between coastal States and foreign-flagged fishing vessels, known as distant water fishing vessels over access to fish stocks in particular. The race for more ocean space was launched with the 1945 Truman Fisheries Proclamation and the Proclamation on the Continental Shelf, a unilateral action by the United States to expand its sovereign rights over ocean space up to 200 nautical miles. Other States followed suit, forging new divisions and ocean disputes.
In its historical perspective on UNCLOS, the UN Division for Oceans Affairs and Law of vividly describes ocean relations among States as a ‘tangle of claims, spreading pollution, competing demands for lucrative fish stocks in coastal waters and adjacent seas, growing tension between coastal nations’ rights to these resources and those of distant-water fishermen, the prospects of a rich harvest of resources on the sea floor, the increased presence of maritime powers and the pressures of long-distance navigation and a seemingly outdated, if not inherently conflicting, freedom-of-the-seas doctrine—all these were threatening to transform the oceans into another arena for conflict and instability’ .
The period after World War II was also a time of major shifts in geopolitics as the once all-powerful colonial powers were losing grip on territorial and ocean dominance with the emergence of newly independent States. Exactly 70 years ago, the historic Bandung conference of newly independent States took place in 1955 but it was not until the Third UN Conference on the Law of the Sea where their voices and interests were codified in what still remains as one of the most important multilateral conventions of the 20th Century: the United Nations Convention on the Law of the Sea (UNCLOS). This multilateral treaty was shaped by the voices of States from all regions of the world, in particular the developing world (also referred to as the Global South). The Convention was also negotiated in a time of the high political division between the two Cold War Super Powers, the U.S. and the (former) U.S.S.R. Despite their ideological differences, the maritime navigational interests of these two Super Powers coincided for broad freedoms, often clashing against the interests of coastal States (many of whom were from newly independent States), seeking greater regulatory control to protect their coastal areas and resources against environmental harm. It was with the leadership of many diplomats and experts from the developing world that compromises were found to create a new convention for ocean space that hoped to inaugurate a new economic order that bringing economic development and peace to all.
The negotiations of UNCLOS were presided over by Ambassador Singh from Sri Lanka followed by Ambassador Tommy Koh from Singapore. Ambassador Satya Nandan from Fiji was among those who made possible through negotiations the compromises and package deal to create what Tommy Koh famously the ‘Constitution for the Oceans.’ The Convention can be seen as a symbol of how a world divided by ideology and with the fresh pains of decolonisation was able to engage in dialogue as equal partners and find compromise to build a ‘new legal order for the oceans’.
UNCLOS was inspired by the electrifying speech of Ambassador Arvid Pardo before the General Assembly in 1967 which laid the foundation for Part XI and the regime of the Common Heritage of Mankind. Lost in the stream of time, perhaps, is the overriding concern expressed by Ambassador Pardo to prevent the unilateral and conflict-producing claims to the ocean seabed and its rich mineral resources by the great military powers and that it be protected for the benefit of all mankind and for peaceful purposes.
UNCLOS was very much designed to promote peaceful relations and peaceful resolution of conflicts so that all States could realise economic prosperity and progress through peaceful cooperation. The opening words of the preamble of UNCLOS resonate in the language of peace:
Prompted by the desire to settle, in a spirit of mutual understanding and cooperation, all issues relating to the law of the sea and aware of the historic significance of this Convention as an important contribution to the maintenance of peace, justice and progress for all peoples of the world
Some 40 years on, the inevitable question is whether the Convention has lived up to these lofty ideals? In his speech to the UN General Assembly commemorating the fortieth anniversary of UNCLOS, Tommy Koh’s response was clear: ‘UNCLOS had put an end to a period of chaos, conflict and unilateralism in the law of the sea. UNCLOS has brought peace, order and the rule of law. UNCLOS is an important pillar of the rules-based multilateral system founded upon international law.’
One of the key tools the Convention created was the very detailed and ambitious dispute resolution provisions under Chapter XV that includes compulsory conciliation, arbitration and dispute resolution through the International Court of Justice, as well through the newly created a new tribunal—the International Tribunal for the Law of the Sea (ITLOS). Through Part XV, many disputes over maritime boundaries have been decided. UNCLOS also brought innovation to resolving disputes, introducing the first compulsory conciliation case to test this innovative process. This was between Timor-Leste and Australia over a long-standing dispute over maritime boundary, and is now hailed as a success.
But UNCLOS resonates beyond its landmark provisions on compulsory dispute settlement in establishing the foundation for peaceful relations over all issues relating to the law of the sea.
Most recently on 19 June 2023, despite initial skepticism, States adopted the BBNJ Agreement—a legally binding instrument under the UNCLOS framework—to promote cooperation for the conservation and sustainable use of the high seas and their resources. The advisory opinion request to ITLOS submitted by the Commission on Small Island States stands as another testament to the continued engagement of States with international law, where some 34 States Parties and nine intergovernmental organisations submitted written statements, and 35 States Parties and three intergovernmental organisations took part in the oral hearings (see here). ITLOS delivered a landmark unanimous opinion (see here) on the obligation of States for the protection and preservation of the marine environmental from climate change under UNCLOS.
Admittedly, conflicts between States over access to ocean space continue, and UNCLOS has not resolved all issues. The Part XV arbitration process has not resolved the South China Sea dispute as China and the Philippines continue to spar over it a decade on. But this is by far the exception and not the rule. In this time of growing pessimism over international law, it is important to remember past achievements of how international law did peacefully resolve the many conflicting demands over ocean space and resources. UNCLOS stands as one of those monumental achievements which has stood the test of some 40 years as not only a constitution for the ocean, but an instrument for peace.