The UN Convention on the Law of the Sea – Part 1


The seas have historically performed two functions: first as a medium of communication and secondly as a vast reservoir of resources, both living and non- living. Both of these functions have stimulated the development of legal rules.

A series of conferences have been held which led to four 1958 Conventions on the Law of the Sea and then to the 1982 Convention on the Law of the Sea. (The 1958 Convention on the Territorial Sea and Contiguous Zone came into force in 1964; the 1958 Convention on the High Seas came into force in 1962; the 1958 Convention on Fishing and Conservation of Living Resources came into force in 1966 and the 1958 Convention on the Continental Shelf came into force in 1964.). The 1958 Convention on the High Seas was stated in its preamble to the ‘generally declaratory of established principles of international law”, while the other three 1958 instruments can be generally accepted as containing both reiterations of existing rules and new rules.

The 1982 Convention contains 320 articles and 9 Annexes. It was adopted by 130 votes to 4, with 17 abstentions. The Convention entered into force on November 16, 1994, after the required 60 ratifications.

The United Nations Convention on the Law of the Sea (UNCLOS) stands as a monumental International Treaty, sculpting the laws that govern the world’s oceans and maritime activities. Born in 1982 and brought to life in 1994, UNCLOS provides a comprehensive legal framework that ensures a fair and efficient use of marine resources, upholds international order and fosters global cooperation. To breathe life into UNCLOS and oversee its broad provisions, four pivotal institutions were created. Each plays a crucial role in adjudicating disputes, regulating seabed activities, dealing continental shelf boundaries and ensuring the Conventions smooth administration.

The International Tribunal for the Law of the Sea (ITLOS)
The International Seabed Authority (ISA)
The Commission on the limits of the Continental Shelf (CLCS)

Meeting of State Parties (SPLOS)

Together, these four institutions act as the guardians of our oceans, promoting peaceful and cooperative use of maritime resources in harmony with international law. Their collective efforts ensure the seas remain a domain of peace, prosperity and sustainability for all. The Convention establishes a comprehensive framework for the exploration and sustainable use of ocean resources. The ISA plays a central role in managing mineral exploration in the international seabed area, known as ‘the Area’. Countries and their sponsored entities can apply to the ISA for exploration contracts, which are reviewed for compliance with legal, technical and environmental standards.

These contracts typically last 15 years and require detailed environmental protection measures and regular reporting. Should commercially viable resources be found, contractors can apply for an exploration licences, subject to a rigorous review to ensure sustainable and responsible mining practices. UNCLOS ensures global participation by providing training and support to developing countries and establishing benefits-sharing mechanisms, guaranteeing that the exploitation of maritime resources benefits all humanity while safeguarding the ocean’s health for future generations.

Indian Ocean Security Conference Phase III

Next towards our country, Sri Lanka in the context of the Indian Ocean, at the Indian Ocean Security Conference phase III held in February 2024, President Ranil Wickremesinghe emphasized Sri Lanka’s dedication to maintaining a strategic position aimed at ensuring the absence of major power rivalries and upholding freedom of navigation in the Indian Ocean.

The President highlighted that Sri Lanka’s commitment to freedom of navigation has prompted the country to engage in operations as guardians of prosperity in the Red Sea. He underscored the significance of the Suez Canal, particularly evident during the Six- Day War when its closure for ten years negatively impacted the Colombo port, emphasizing the necessity of ensuring unrestricted navigation.

President Wickremesinghe also highlighted emerging issues, including security concerns in the undersea domain, prompting a reassessment of approaches. He expressed the belief that the future lies in the Indian Ocean, stressing the importance of understanding Sri Lanka’s role within the broader Indo – Pacific framework.

The President noted that the dynamics of the Indo- Pacific originating from post –World War II, arrangements such as the San Francisco system and the Shanghai communiqué, have evolved, leading to questions about the country’s positioning and potential involvement in regional conflicts.

The President highlighted the imperative to reconcile varying viewpoints on the Indo- Pacific, particularly regarding its geographical limits and implications for maritime security. Sri Lanka adamantly opposes the idea of confining the Indo – Pacific to India’s Western boundary, stressing its wider territorial concerns that stretch to the African Coast. This stance diverges sharply from China’s expansive outlook, prompting scrutiny into the underlying motives and potential repercussions of these contrasting approaches.

The President emphasized the importance of addressing emerging developments in the Indian Ocean amid complex geopolitical dynamics. This includes China’s growing presence, which is bolstered by infrastructure projects such as the Frendship Highway in Pakistan and agreements with India concerning connectivity and harbour development. The evolution of economic corridors such as the Mumbai- UAE – Isreal- Europe connection highlights the changing geo political landscape, emphersizing the need for long-term strategic planning.

The President highlighted the interconnectedness of regional dynamics and the potential implications for maritime security and the diplomacy, as evidenced by the recent conflict in Gaza. Stressing the arc of Islam stretching from the Middle East to Indonesia, he underscored the need for nuanced approaches to crisis management, considering geo-political complexities and cultural sensitivities.

Emphasizing the importance of embracing the Indian Ocean’s identity and historical significance, President Wickremesinghe advocated for cooperation among major powers rather than competition. He outlined Sri Lanka’s vision for the region as a hub for economic growth extending beyond India to Africa.

Regarding the resurgence of Asia’s influence, particularly China’s pivot to the Indian Ocean and the Belt and Road Initiative’s, impact, the President highlighted the necessity of evaluating traditional power structures and alliances. He reiterated Sri Lanka’s commitment to promoting stability and cooperation in the Indian Ocean region. He stressed the importance of maintaining an inclusive approach that respects the historical significance of the Indian Ocean and considers the perspectives of its diverse stakeholders for long term peace and prosperity.

UN Convention on the Law of the Sea and its resources

The 1982 Convention on the Law of the Sea as a whole can be taken as representing the present international law of the sea. It seems to be a fair inference to draw that the principles embodied in the treaty can be regarded as having the general acceptability of the international community and would be binding even on non-parties as customary international law. It can be viewed as representing the practice of generality of States as well as the opinio juris. The Convention came into force in 1994 after obtaining the 60th ratification. Today, over 166 States including the European Union are parties to the Convention.

The Convention has been constituted out of the two main sources of international law namely custom and treaty. But the other sources too have contributed their share. ‘The Convention has also incorporated the judgments of the International Court of Justice as, for example, the theory of natural prolongation propounded in the North Sea Continental Shelf Cases which has been adopted as one of the criteria for delimitation of the Continental Shelf, or the concept of the coastal States preferential rights in the adjoining seas as elucidated in the Fisheries Jurisdiction Case between Iceland and the United Kingdom which concept has now been extended to comprehend the exclusive economic zone.

The general principles of law recognised by civilised nations have also been worked into the text of the Convention as seen in the notion of equity which is the underlying thread which runs through most of the provisions of the Convention and which is a criterion in delimitation of boundaries between adjacent and opposite States.

Equitable considerations have also underlain considerations of resource management and regional co-operation. The idealistic content of the Convention is particularly evident in the whole new regime of the International Seabed which rests on the notion of the common heritage of mankind, bringing for the first time, into the realm of legal relationships the concept of mankind as a subject of rights and duties and stressing the theme of universality, cutting across narrow national considerations.

UN Convention of 1982 and Sri Lanka

As an Island State in the centre of the Indian Ocean, the sea holds out great potential. The Law of the Sea is, therefore, of importance to Sri Lanka as it determines her maritime boundaries and the jurisdictional zones therein. This chapter surveys Sri Lankan perspective of the UN Convention on the Law of the Sea, 1982. However, for reference purposes, its global perspective is also outlined where suitable.

Continental Shelf

Article 76(1) of the 1982 convention provides as to the outer limit of the continental shelf that:

The continental shelf of a coastal state comprises the seabed 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. (See article 76(3) for a definition of the continental margin).

Thus, an arbitrary, legal and non-geographical definition is provided. Where the continental margin actually extends beyond 200 miles, geographical factors are to be taken into account in establishing the limit which in any event shall not exceed either 350 miles from the baselines or 100 miles from the 2500 – metre isobath. (Article 76 (4), (5), (6), (7), (8), and (9)).

The continental shelf (D.P O’ Connell, The International Law of the Sea, is a geological expression referring to ledges that project from the continental landmass into the seas and which are covered with only a relatively shallow layer of water (some 150-200 metres) and which eventually fall away into the ocean depths (some thousands of metres deep). These ledges and shelves take up some 7 to 8 percent of the total area of the ocean and their extent varies considerably from place to place.

In 1982 Convention, the definition and limits of the continental shelf have been altered by the substitution of new criteria. The exploitability test as a criterion for the delimitation of the continental shelf has been replaced in the 1982 Convention with a distance criterion of 200 miles.

The coastal state may exercise sovereign rights over the continental shelf for the purposes of exploring it and exploiting its natural resources under article 77 of the 1982 Convention. Such rights are exclusive in that no other state may undertake such activities without the express consent of the coastal state. The coastal state may, under article 80 of the 1982 Convention, construct and maintain installations and other devices necessary for exploration on the continental shelf and is entitled to establish safety zones around such installations to a limit of 500 metres, which must be respected by ships of all nationalities.

Within such zones, the state may take such measures as are necessary for their protection. However, these installations are not to be considered as islands. This means that they have no territorial sea of their own and their presence in no way affects the delimitation of the territorial waters of the coastal state.

Where the continental shelf of a state extends beyond 200 miles, article 82 of the 1982 Convention provides that the coastal state must make payments or contributions in kind in respect of the exploitation of the non-living resources of the continental shelf beyond the 200-mile limit.

The payments are to be made annually after the first 5 years of the production at the site in question on a sliding scale up to the 12th year after, which they are to remain at 7 percent. These payments and contributions are to be made to the International Seabed Authority, which shall distribute them amongst state parties on the basis of ‘equitable sharing criteria, taking into account the interests and needs of developing states particularly the least developed and land locked among them. To be continued next week