UN CONVENTION ON THE LAW OF THE SEA : A passage to maritime safety

The Straits Times, February 28, 2007

By Tommy Koh





CONSTANT ALERT: Although the UN Convention on the Law of the Sea is working well as the new legal order of our oceans and seas, states must not become complacent. -- BLOOMBERG





I HAVE devoted about a decade of my life to helping to negotiate the 1982 UN Convention on the Law of the Sea. In the final year of the conference, due to the unfortunate demise of Mr Hamilton Shirley Amerasinghe, I was drafted in to fill his shoes as its president. The conference, which began in December 1973, was concluded in April 1982, and came into force in 1994. Let me share my reflections.

Significant step
WHAT is the significance of the convention? First, it is the first comprehensive convention governing all aspects of the uses and resources of the world's oceans. It respects the inter-relationships among the different aspects of the law of the sea. It treats ocean space as an ecological whole.

Second, it represents the most ambitious effort at the codification and progressive development of international law ever undertaken by the international community since the founding of the UN.

The convention contains many new and innovative concepts, including transit passage through straits used for international navigation, archipelagic baselines and archipelagic sea lanes passage, the exclusive economic zone, the concept of a comprehensive environmental law of the sea based on the obligation of all states to protect and preserve the marine environment, etc.

Third, the convention forbids reservations and contains mandatory provisions for the settlement of disputes. Under the convention, a state party has the right to choose one of three forums for the settlement of disputes: the International Court of Justice, the International Tribunal for the Law of the Sea (ITLOS) and arbitration. If a state fails to express a preference, it is deemed to have chosen arbitration.

Malaysia and Singapore have not expressed a preference. In 2003, Malaysia invoked the convention and referred a dispute with Singapore to arbitration. A full and final settlement of the dispute was reached through the signing of a bilateral Settlement Agreement on April 26, 2005.

Singapore found its experience with ITLOS positive. We also feel that such third-party dispute settlement mechanisms are the best ways to resolve bilateral problems rather than let bilateral relations be paralysed by issues which have reached an impasse.

A success
THE convention has been successful. It has 153 states as parties to it. Countries such as the United States, which has not yet acceded to the convention, have largely complied with its provisions, arguing that they have become part of customary international law.

There have been relatively few disputes between states on the interpretation and application of the convention, which would appear to have settled the law and, as a result, there have been few instances of armed conflict at sea between states, unlike the situation prior to 1982.

Vigilance needed
ALTHOUGH the convention has worked well, we must not become complacent. This is because attempts have been made and will be made by coastal states to expand their rights and jurisdictions in contravention of the convention.

Let me cite a few examples. First, although the convention does not allow parties to make reservations, this has not prevented a number of them from seeking to do just that by filing disguised reservations in the form of interpretative declarations.

Second, some coastal states have enacted national legislation in relation to their exclusive economic zones (EEZ) that are inconsistent with the convention.

Under the convention, the EEZ is neither territorial sea nor part of the high sea, but is sui generis. Some coastal states have sought to subject the EEZ to their sovereignty, just like their territorial sea.

Third, attempts have been made and are being made by some coastal states to weaken the navigational rights regime under the convention in the interest of protecting the marine environment.

A current example is a disagreement between Australia, supported by Papua New Guinea and New Zealand, and a large number of other states, including the US, UK, Japan, Singapore and others, over the Torres Strait.

The Torres Strait, between Australia and Papua New Guinea, is used for international navigation. Australia has imposed a system of compulsory pilotage on ships transiting the Torres Strait. The penalty for non-compliance is that the owner, master and/or operator of an offending ship can be prosecuted on its next entry to an Australian port.

Australia seeks to justify its action on three grounds:
UNCLOS is silent on the question on whether a coastal state can set compulsory pilotage in an international strait.

The International Maritime Organisation (IMO) is the competent organisation to approve the system of compulsory pilotage.

The IMO has approved the system of compulsory pilotage in the Torres Strait.
In my view, Australia's case is weak for these reasons:

Australia has no authority, under Part III of the convention, to legislate a system of compulsory pilotage on ships enjoying the regime of transit passage in straits used for international navigation.

The power of states bordering straits to adopt laws and regulations is limited to four specific categories in Article 42(1). Adopting laws and regulations requiring ships exercising transit passage to take on a pilot does not fall within any of these categories.

An objective reading of the records of the various meetings of the IMO since 1991 at which the subject was discussed, including the safety of navigation subcommittee meeting and the marine environment protection committee meetings, shows that the IMO's decision on pilotage in the Torres Strait was of a recommendatory nature. What the committee had approved was a system of voluntary pilotage, not compulsory pilotage, as Australia alleges.
Since I had the privilege of chairing the preparatory committee for, and the main committee at, the Earth Summit in Rio de Janeiro, I can say with sincerity that I attach great importance to the protection of the environment.

I believe, however, the UN Convention establishes a fair balance between the interests of coastal states in protecting their marine and coastal environment and the interests of the international community in rights of navigation.

I am also concerned that Australia's action will set an unfortunate precedent. I appeal to Australia to review its actions and to bring its conduct into conformity with the UN Convention.

Subduing pirates
THE straits of Malacca and Singapore are among the busiest straits in the world. It is estimated that half of the world's oil supply and a third of global trade pass through the straits each year.

The good news is that the three strait states - Indonesia, Malaysia and Singapore - work well together through a long-existing mechanism called the Tripartite Technical Experts Group. The further good news is that all three are parties to the UN Convention, recognise that the two straits are used for international navigation and have always sought to cooperate with the IMO and user states.

For a number of years, piracy incidents were increasing and posing a threat to the safety of navigation in the Malacca Strait. The increasing concern over the situation saw the international community react in two ways.

First, some user states offered to help the strait states. Second, Lloyds classified the Strait of Malacca a 'war risk zone', even though there has not been any incident of terrorism or war in the strait.

In response, the three strait states took more decisive actions to enhance surveillance and enforcement. As a result, piracy has declined substantially. Lloyds has since delisted the Strait of Malacca as a war risk zone.

Cooperation
I HAVE one other piece of good news to share. This pertains to Article 43 of the UN Convention, which calls upon user states and strait states to agree to cooperate:

In the establishment and maintenance in a strait of necessary navigational and safety aids or other improvements in aid of international navigation.

For the prevention, reduction and control of pollution from ships.
This article in the convention is not self-executing, but depends upon the willingness of user and strait states to agree. Until recently, the only user state that had helped the strait states carry out their responsibilities was Japan.

The good news is that in September 2006 at the IMO- Kuala Lumpur Meeting on the straits of Malacca and Singapore, a breakthrough was achieved. The representatives of the strait and user states agreed to establish a cooperative mechanism. This agreement will be formalised and the cooperative mechanism established at September's IMO Straits Meeting in Singapore.

Positive outlook
LET me end with three messages. First, the UN Convention on the Law of the Sea, supplemented by the two agreements of 1994 and 1995, is working well as the new legal order of our oceans and seas.

Second, we should not become complacent because attempts have been made and will continue to be made by some coastal states to enhance their rights and jurisdiction in contravention of the convention.

In my view, the recent action taken by Australia to impose a system of compulsory pilotage in the Torres Strait contravenes the convention and disrespects the IMO.

Lastly, the good news from South-east Asia is that piracy in the straits of Malacca and Singapore is under control, and the three strait states - Indonesia, Malaysia and Singapore - and user states have agreed to establish a cooperative mechanism in order to implement Article 43 of the Convention.

This article is excerpted from the 7th Cedric Barclay Memorial Lecture delivered in Singapore yesterday at the 16th International Congress of Maritime Arbitrators by Ambassador-at-Large Tommy Koh. Professor Koh was president of the Third UN Conference on the Law of the Sea (1981-1982).