Opening meeting of the 2nd United Nations Conference on the Law of the Sea, Geneva, Switzerland, 17 March 1960. (Historical files, United Nations Seabed Authority)
This continues the JAPAN Forward history series focusing on the 1982 United Nations Convention on the Law of the Sea (UNCLOS). The world was undergoing major political transformations as its three universal conferences of 1958, 1960, and 1973-82 took place.
Today, 169 countries and regions are parties to the convention and achieving an equitable compromise on terms for a treaty was not an easy task. Part four of the series introduces the efforts of the 1960 conference to agree on basic precepts of the law of the sea.
Fourth in the series
First part Order on the Sea: Tracing the Genesis of UNCLOS
Second part Order on the Sea: Finding Early UNCLOS Unity One Piece at a Time
Third part: Order On the Sea: 1958 Geneva Conference Tackles Marine Boundaries
The Second Conference
The second United Nations Conference on the Law of the Sea began in Geneva on March 17, 1960. It continued for over a month, to April 26, with 88 participating states. The objective and main agenda items of the 1960 meeting had not been agreed upon in the previously concluded 1958 convention. However, they became:
- The breadth of the territorial sea bordering each coastal state; and
- Establishment of fishing zones by coastal states in the high seas contiguous to, but beyond, the outer limit of the territorial seas of coastal states.
For centuries, the Law of the Sea has been based on customary law and the concept of freedom of the seas. Nations' control of the oceans was limited to narrow bands adjacent to their coasts.
By the middle of the 20th century, nations had increased their capability to engage in long-range fishing and commercial extractions. At that point, concerns about the exhaustibility of ocean resources began to arise. With many nations asserting sovereignty over wider areas and claiming rights to the resources of the continental shelf and the waters above, the concept of freedom of the seas began to erode.
International Law at its Core
A 2015 American Society of International Law paper titled "Law of the Sea" by Barbara Bean discusses this background.
Earlier, in 1960, Arthur H Dean authored a paper published in The American Journal of International Law titled "The Second Geneva Conference on the Law of the Sea: The Fight for Freedom of the Seas." In it, he highlighted the reciprocal rights of each coastal and fishing or maritime state. He further addressed questions of the inner and outer zones relating to national security, innocent passage of warships, maritime and aerial commerce, and fisheries rights and conservation.
The conference centered around international law, including the international legal rights and duties of various countries and their nationals, and the right to navigate in the airspace over the sea and beneath its surface.
It was governed by procedural rules resembling those of the UN and worked in two stages. All states present formed the "Committee of the Whole." This became the forum for debating various proposals on territorial seas and contiguous fishing zones. It could adopt a report with proposals to the conference's plenary session by a simple majority vote.
Meanwhile, an official convention could be adopted in a plenary session upon an affirmative two-thirds of the states present and voting [while not abstaining] in a plenary session.
On this basis, the second UN conference sought to commence work towards achieving equitable agreements on international laws of the sea. Only then could the freedom of the seas, and the right to harvest its resources be ensured.
Challenges in Creating Consensus on Freedom of the Seas
The committee sought an equitable concept to define freedom of the high seas. Its goal was to protect the seas for all mankind to freely enjoy, including access to oceans, seaways, and airways would also encourage increased communication and maritime commerce.
The UN General Assembly rejected the opposition raised by a few states during the convening of the 1960 conference. Nevertheless, despite the high representation via 88 states, there were no major breakthroughs in 1960.
DW Bowett analyzed this in a 1960 paper published in the International and Comparative Law Quarterly. He described the earnest hope that the conference's failure would not become a setback to the overall movement for codification and progressive development of maritime international law.
Simultaneously he underscored the realization that no movement of this kind could succeed unless states were willing to view their interests in the larger context of international society and the global community. This was the essence of the compromise which was invariably needed to secure general acceptance of the rules on any controversial issue or subject.
Concurrently, as Bowett put forth, the letdown of the 1960 conference should not be regarded as diminishing the importance of the work of the International Law Commission. Notwithstanding its failures, the 1960 UN conference highlighted the battle to retain the freedom of the seas. In doing so, it became a referral milestone for many statesmen, lawyers, and historians seeking a way forward.
Identifying the Sources of the Challenge
The major setbacks and failures of the 1960 conference revolved around:
- Straight Baselines
- Mid-Ocean Islands Archipelagos
- Historic Bays
- Residual Rights in the EEZ (Article 59)
- Prior Notice/Consent and Innocent Passage
- Dispute Settlement
- Ice-Covered Areas
- Fisheries Jurisdiction
- Environmental Protection
- Declarations and Statements
During the closing stages of the second conference, the pressing need for a third UN conference became clear. Universally acceptable rules and laws for the seas and oceans that would be adhered to globally were needed.
The Third UN Conference on the Law of the Sea
Two years later in 1973, the United Nations General Assembly (UNGA) convened the Third UN Conference on the Law of the Sea.
UNGA requested the Secretary-General to convene the first two sessions of the third conference in 1973 and 1974. Their mission was based on the committee's work from 1971-73.
Following the first (1973) session, UNGA decided that the mandate of the third conference would be "to adopt a convention dealing with all matters relating to the law of the sea."
Nisuke Ando is cited in Japan and International Law: Past, Present, and Future (1999, Kluwer Law International) at The Hague. Ando reported that the participating nations supported the traditionally established rules of the law of the sea and maintained that the law of the sea was based on the principles of sovereignty and freedom. This consensus represented a milestone for the third UN Conference on the Law of the Sea (1973-1982).
In this achievement, the third conference contributed substantially toward creating a new treaty regime. Ultimately, the 1982 United Nations Convention on the Law of the Sea (UNCLOS) was premised on one broad consideration, that an international legal order of the seas was indispensable to the world at large.
The third conference is explored further in the next article of this history series.
Next: Read the rest of the series.
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Author: Dr Monika Chansoria
Follow Dr Chansoria's "Order on the Sea" series and find her column "All Politics is Global" on JAPAN Forward, and X (formerly Twitter). The views expressed here are those of the author and do not reflect the views of any organization with which she is affiliated.
