Order on the Sea: Tracing the Genesis of UNCLOS

This JAPAN Forward history series focuses on the 1982 United Nations Convention on the Law of the Sea (UNCLOS). It reminisces about the first three universal conferences on the subject held after the attempt in 1930. These three UNCLOS conferences in 1958, 1960, and 1973-1982 remain a primary reference point in tracing the legal journey of the seas to its contemporary form.

Part 1 of the series "Order on the Seas"

For maritime nations surrounded by sea, including Japan, the international law of the sea is indispensable for securing their maritime rights and interests. This law is based primarily on the 1982 United Nations Convention on the Law of the Sea (UNCLOS). 

UNCLOS governs all activities in the oceans and seas. In particular, that includes the freedom of navigation and overflight, and freedom on the high seas. It also governs the protection and preservation of the marine environment as well as the peaceful settlement of disputes. 

​​Japan's Commitment to UNCLOS

Japan ratified the UNCLOS in 1996 and has been actively promoting the rule of law at sea. This includes contributing to the three organs established by UNCLOS: the International Tribunal for the Law of the Sea (ITLOS), the Commission on the Limits of the Continental Shelf (CLCS), and the International Seabed Authority (ISA). 

The International Tribunal for the Law of the Sea (ITLOS) was established under UNCLOS in 1996 in Hamburg, Germany. Its mandate is the judicial settlement of disputes related to the interpretation and application of the Convention.

Japan has consistently attached importance to the rule of law at sea and the peaceful resolution of maritime disputes between states based on UNCLOS. At this time, it is significant to revisit the very genesis of the treaty. There are three crucial conferences:

1. First United Nations Conference on the Law of the Sea, 1958
2. Second United Nations Conference on the Law of the Sea, 1960
3. Third United Nations Conference on the Law of the Sea, 1973-1982 

These conferences provide a forum for vintage and contemporary historical-legal debates on what the law of the sea is. They also affirm the prominence of the principles of freedom of the sea, fishing rights, and economic and political rights. Furthermore, through these, the interests of all parties remain perennially and heavily intertwined. It requires all free nations to arrive at equitable and realistic agreements. 

Japan's Three Principles

Three global sea conferences convened under the auspices of the United Nations in 1958, 1960, and 1973-1982. The parties to them discussed and adopted multilateral conventions and treaty agreements on the law of the sea. Importantly, these also considered new frontiers of oceanographic exploration and development.

Understanding and delineating the initial arguments made during the three United Nations conferences on the Law of the Sea holds crucial relevance for Japan. Tokyo advocates "Three Principles of the Rule of Law at Sea." These are that states should:

1. Make and clarify their claims based on international law
2. Not use force or coercion in trying to drive their claims
3. Seek to settle disputes by peaceful means

More recently in 2023, Japan co-sponsored an important draft resolution on "Oceans and the Law of the Sea." This was attributed to Tokyo's belief in the universal and unified character of UNCLOS. That means all maritime claims must be made based on the relevant provisions of the UNCLOS. More specifically, UNCLOS provides the basis for determining legitimate rights and interests of all states over the range of maritime zones. 

Therefore, by agreement of the parties who signed on to it, UNCLOS overrides earlier general international law. Unilateral assertions and attempts to override matters covered under UNCLOS are unacceptable.

Progress in Maritime Order

In 2023, the world achieved new progress towards maritime order under this convention. That came in the field of maritime environmental protection. Specifically, under UNCLOS, the member states adopted the international legally binding agreement on biodiversity beyond national jurisdiction (BBNJ) after nearly 20 years of tireless negotiations. 

The BBNJ agreement addresses the long-standing issue of the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction. Moreover, it represents the strong will of the international community as a whole. 

The effective implementation of this agreement requires universal participation by the member states. Japan has called for its rapid entry into force and implementation as affirmed in the G7 Hiroshima Leaders' Communique. The need to underscore the importance of the rule of law as a universal value remains paramount, especially, to realize a free and open Indo-Pacific.

Impact of UNCLOS

However, UNCLOS's effectiveness remains heavily reliant on voluntary compliance by its party states. Theoretically, methods such as reputation damage, sanctions, and withholding benefits can be used to ensure compliance. However, these approaches have proven ineffective when major economic powers are involved.

This was amply demonstrated in the South China Sea arbitration case under UNCLOS between the Philippines and China. Despite being a UNCLOS member, Beijing rejected the PCA's ruling, which favored Manila. Since then, the inability to enforce compliance through economic sanctions or otherwise highlights the challenges in ensuring adherence to international maritime law. This is particularly the case when powerful, revisionist states such as China assert their interpretations of territorial and maritime rights.

RELATED:

• Countries Stand Behind the Philippines in Latest Maritime Harassment by China
• Elevating the Partnership with the Philippines to Deter an Aggressive China
• Indian Ocean Geopolitics in the Crosshairs
• Massive Chinese Project Engulfs Cambodia's Coastline

Author: Dr Monika Chansoria

Learn more about Dr Chansoria and follow her column "All Politics is Global" on JAPAN Forward, and on 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.