UNCLOS has empirically not been successful
Empirically, after 30 years there is a significant and consistent pattern of non-compliance with UNCLOS provisions.
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For reasons of space, I cannot attempt here any detailed or comprehensive survey of non-compliance with the LOSC, nor is it necessary to my case to do so. It is sufficient to give a number of varying and persisting examples to show that non-compliance continues to be a problem.
- Some States parties, including Bangladesh, Egypt, Myanmar and Viet- nam, have drawn straight baselines in ways that do not meet the require- ments of Article 7, even on the most generous interpretation of the admittedly imprecise provisions of that Article.1
- Four States parties (Benin, Philippines, Somalia and Togo) still claim a territorial sea with a breadth in excess of the 12 nautical miles permitted by Article 3.
- 12 States parties, including China, Haiti, India, Pakistan and Saudi Arabia, have included security as one of the matters in respect of which they claim to exercise jurisdiction in their contiguous zones, contrary to Article 33.
- A few States parties, including Japan, have sought to delimit an exclusive economic zone (EEZ) and continental shelf from uninhabitable rocks, contrary to Article 121(3).
- A considerable number of flag State parties are in breach of their obliga- tion under Article 94 to exercise effective jurisdiction and control in respect of the seaworthiness of ships having their nationality, as revealed by the record of inspections and detentions of unseaworthy ships carried out by port States under various regional Memoranda of Understanding (MoU) on port State control. In particular, such States include those on the black list of flag States, and possibly even those on the grey list, pub- lished each year by the Paris and Tokyo MoUs.2
- The biennial reports on the State of World Fisheries and Aquaculture published by the FAO show that for the past decade or more nearly 30% of fish stocks are over-exploited.3 This indicates that some coastal States parties (notably the European Union (EU))4 are in breach of their obliga- tion under Article 61(2) to ensure that the maintenance of the living resources of their EEZs is not endangered by over-exploitation; and that some States parties are in breach of their obligation under Articles 117– 119 to conserve the living resources of the high seas. Furthermore, it has been estimated that as much as one-third of the total global marine fish catch is taken illegally.5 Not all such illegality is necessarily a breach of the LOSC, but a good deal certainly is.
- A number of States parties are in breach of their obligations under Article 194(5) by failing to take the necessary measures to protect and preserve rare or fragile ecosystems, for example by permitting fishing using explo- sives in the vicinity of tropical coral reefs or by permitting bottom trawl- ing on seamounts and areas of cold-water coral reefs in their EEZs.
Due to the significance placed on obtaining jurisdiction over the North Pole, and given recent violations of the norms of the Law of the Sea Convention, some experts see risks of noncompliance with any recommendations from the commission that would negate a country's submission.
One significant recent violation is Russia's refusal to participate in the dispute-resolution proceeding called by the Netherlands over Russia's arrest of environmental activists who disrupted the activities of a Gazprom drilling platform in the Pechora Sea and seizure of the Dutch-flagged ship Arctic Sunrise last year.
“That's a very clear disrespect for international law. You are a party to the Law of the Sea Convention, and thereby you are bound to the dispute-settlement procedure,” Molenaar said.
Another similar example is China's refusal to participate in a dispute-resolution procedure requested by the Philippines over an area in the South China Sea outside China's exclusive economic zone that China claims for itself.
Such disregard for an international treaty can have broad impacts on various multilateral bodies and negotiation processes and bring about wider distrust and noncompliance.
“The risk is disrespect for agreed multilateral procedures. There is a risk in the background that Russia or even Canada will not act in accordance with the recommendations of the [commission], and this fear I think is more justified because of this nonappearance in the Arctic Sunrise case, and maybe even the recent developments in Ukraine” where Russia is viewed as violating the borders of Ukraine's sovereign territory.
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In 1982 it may have been reasonable, if perhaps somewhat optimistic, to hope that the LOSC would, in the words of its preamble, establish a “legal order for...the oceans which...will promote the peaceful uses of the seas and oceans, . . . the conservation of their living resources and the . . . preservation of the marine environment.” Thirty years later it is clear that the LOSC has failed to achieve those goals. This is in part due to continuing non-compliance with many of its provisions. Such non-compliance is a matter of serious concern for all the reasons suggested earlier. It could—and should—be addressed by States parties making more use of Part XV of the LOSC (perhaps non- governmental organizations could persuade or help States to bring test cases); by considering more use of retorsion and counter-measures; and by developing compliance mechanisms for other treaties that indirectly help to promote compliance with the LOSC. In some cases assistance in capacity building may also be appropriate.
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Some may seek to downplay the significance of non-compliance with the LOSC by arguing that a certain level of non-compliance is to be expected in any legal system: as long as it is kept within reasonable bounds, there need be no undue concern. I believe that this is too sanguine a view. There are just over 160 parties to the LOSC, at least one-third of which (and quite possibly more) are in breach of at least one significant provision of the LOSC. Such a degree of non-compliance undermines the integrity and legitimacy of the LOSC. Furthermore, non-compliance provokes disputes, denies States parties some of their LOSC rights, threatens good order at sea, and harms the marine environment.