December 2022 will mark the 40th anniversary of the United Nations Convention on the Law of the Sea (UNCLOS), concluded at Montego Bay, Jamaica, on 10th December 1982. This is an opportunity to take stock of the valuable contributions of this agreement, which can be seen as a “monumental achievement of the international community, second only to the Charter of the United Nations“.
UNCLOS introduced many new features to the law of the sea, going beyond gathering the main principles of customary law.
There are among the main innovations archipelagic waters, the International Tribunal for the Law of the Sea, the qualification of the seabed beyond national jurisdiction as a common heritage of mankind and, above all, the EEZ.
The EEZ particularly reflects the complex balance of the Convention, which required many years of negotiations. It has made it possible to please both coastal States (especially developing ones) about their rights concerning the resources of their waters, and the major maritime powers attached to the freedom of navigation and trade. Like many other provisions of UNCLOS, the concept of the EEZ has been incorporated into international customary law, making it legally binding on all States.
Furthermore, UNCLOS has helped to settle many maritime disputes. By clearly defining the different maritime spaces and their extent, it has helped to resolve disputes and to strengthen legal stability.
The concept of the territorial sea is a particularly telling example; although it was conceived in the early days of the law of the sea, States had never managed to agree on its breadth.
UNCLOS clarified this point and now the vast majority of States claim a territorial sea of 12 miles or less, including some that are not parties to UNCLOS. The Convention has thus become a guide to the behaviour of States on maritime matters.
The UNCLOS is an innovative convention, a modern text that has not suffered from the past forty years. On the contrary, some provisions are even more relevant today: this is the case, for example, of the provisions concerning the exploration and exploitation of the seabed, for which the technological progress since the 1980s has made it possible.
In addition, the Convention bears witness to the importance of environmental concerns for the negotiators, at a time when these subjects were less of a priority. As a result, the Convention includes a comprehensive section on the protection and preservation of the marine environment.
In conclusion, UNCLOS is a modern treaty that has established itself as a framework convention for the law of the sea, around which the other components of the law of the sea revolve. Although subject to interpretation like any international treaty, a large majority of States respect its provisions, which keep the spirit of Montego Bay alive.
This can be seen in the provisions of many subsequent treaties that refer to UNCLOS, showing the willingness of States to use it as a foundation without questioning its authority.
However, some States are taking increasingly revisionist positions to serve their national interests. This is a serious threat and challenge to UNCLOS, which remains a symbol of successful multilateralism.
We will continue the celebration of this 40th anniversary with two other articles to come, concerning current examples of the application of the law of the sea : warships in foreign EEZ and the Taiwan Strait.