Thursday, 26 May 2022

Kishore Vaangal*

Reexamining the UNCLOS: a Lack of Compliance and Enforceability

Full text PDF [EN]

Suggested citation:

Vaangal, K. (2022). Reexamining the UNCLOS: a Lack of Compliance and Enforceability. Lex Portus, 8(1), 7-27. https://doi.org/10.26886/2524-101X.8.1.2022.1

*PhD, Alagappa University (Karaikudi 630003, Tamil Nadu, India)

 

ABSTRACT

The article examines the effeteness of UNCLOS and espouses on why it is not a De Jure legally binding agreement but a De facto non-binding agreement. The uncertainty in the law of the sea would inevitably grow and increasingly State practice, across geographies, may well continue to diverge from the traditional views of the law. Given that states are increasingly under the influence of domestic politics and racial tensions, divergence per se is inevitable, and the dire need of the hour is for the comity of nations to get their act together, vis a vis, re-examining the UNCLOS agreement and to thereafter usher in an agreement that would work. The need to rewrite would require much effort and the cooperation of all the states and indubitably, it would call for egalitarian approaches.

The keywords: law of the seas, Constitution of the Seas, maritime jurisprudence, the one ocean concept, the binding nature, interpretations of UNCLOS, International Law, USA, China.

 

REFERENCES

Almond, R.G. (2017, May 24). U.S. Ratification of the Law of the Sea Convention. Measuring the raison d’État in the Trump era. The Diplomat. https://thediplomat.com/2017/05/u-s-ratification-of-the-law-of-the-sea-convention/

Bandow, D. (1982). UNCLOS III: A Flawed Treaty. San Diego Law Review, 19, 3, 475-492. https://digital.sandiego.edu/sdlr/vol19/iss3/5

Bateman, S. (2009, March 25). UNCLOS and Its Limitations as the Foundation for a Regional Maritime Security Regime. Korean Journal of Defense Analysis, 27-56. https://www.tandfonline.com/journals/rkjd20

Bromund, T.R., Carafano, J.J., & Schaefer, B.D. (2018, June 4). 7 Reasons U.S. Should Not Ratify UN Convention on the Law of the Sea. The Heritage Foundation. https://www.heritage.org/global-politics/commentary/7-reasons-us-should-not-ratify-un-convention-the-law-the-sea

Chaudhury, D.R. (2021). China must honour legally binding UNCLOS verdict on South China Sea. The Economic Times. https://economictimes.indiatimes.com/news/defence/china-must-honour-legally-binding-unclos-verdict-on-south-china-sea/articleshow/84257847.cms?from=mdr

Churchill, R. (2012). The Persisting Problem of Non-compliance with the Law of Sea Convention: Disorder in the Oceans. The International Journal of Marine and Coastal Law, 27, 813-820.

EastAsiaForum. Economics, Politics and Public Policy in East Asia and the Pacific. https://www.eastasiaforum.org

Even without ratification, UNCLOS has already achieved binding customary international law status in the US. UNCLOS debate. https://www.unclosdebate.org/evidence/737/even-without-ratification-unclos-has-already-achieved-binding-customary-international

Guzman, A. The Consent Problem in International Law. Berkley Law School. https://escholarship.org/content/qt04x8x174/qt04x8x174_noSplash_5221402d70d7d0b5afbb467a7a464009.pdf

International Maritime Organization. http://www.imo.org

Kapoor, N. (2021, June 21). Russia’s conduct in the South China Sea. ORF. Observer Research Foundation. https://www.orfonline.org/research/russias-conduct-in-the-south-china-sea/

Karev, S. (1995). The Russian Federation and the UN Conference on the Law of the Sea. Proceedings of the Annual Meeting (American Society of International Law), 89, 455-458. http://www.jstor.org/stable/25658962

Koskenniemi, M. (2006). Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law: Report of the Study Group of the International Law Commission, International Law Commission Fifty-eighth session (Geneva, 1 May – 9 June and 3 July – 11 August). https://legal.un.org/ilc/documentation/english/a_cn4_l682.pdf

Ma, X. (2019, March 15). China and the UNCLOS: Practices and Policies. The Chinese Journal of Global Governance. https://brill.com/view/journals/cjgg/5/1/article-p1_1.xml?language=en

Mitchell, S., & Owsiak, A. (2021). Judicialization of the Sea: Bargaining in the Shadow of UNCLOS. American Journal of International Law, 115(4), 579-621. https://doi.org/10.1017/ajil.2021.26

Schrepferman, W. (2019, October 31). Hypocri-sea: The United States’ Failure to Join the UN Convention on the Law of the Sea. Harvard International Review. https://hir.harvard.edu/hypocri-sea-the-united-states-failure-to-join-the-un-convention-on-the-law-of-the-sea-2/

Some Irresponsible Nations Twisting Definition Of UNCLOS: Rajnath Singh’s Veiled Dig At China. (2021, November). Outlook. https://www.outlookindia.com/website/story/india-news-some-irresponsible-nations-twisting-definition-of-unclos-rajnath-singhs-veiled-dig-at-china/401932

The General Assembly. (2015, June 19). The resolution on Development of an international legally-binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. (A/RES/69/292). https://documents-dds-ny.un.org/doc/UNDOC/GEN/N15/187/55/PDF/N1518755.pdf?OpenElement

UN Department of Economic and Social Affairs. Sustainable Development. http://sustainabledevelopment.un.org

UNCLOS debate. http://www.unclosdebate.org

UNCLOS: fit for purpose in the 21st century? UK Parliament. https://committees.parliament.uk/work/1557/unclos-fit-for-purpose-in-the-21st-century/

United Nations. (1982, December 10). Convention on the Law of the Sea. www.un.org. https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf

Vaangal, K. (2021). Legal Status of Offshore (Deep-Water) Oil Rigs: Coastal State Jurisdiction and Countering Oil Spills Threats. Lex Portus, 7(5), 42-68. https://doi.org/10.26886/2524-101X.7.5.2021.3

Van Deutekom, J. (2016, July 21). UNCLOS, undone by China? Gateway House. https://www.gatewayhouse.in/unclos-undone-by-china/

.

Editorial Board Address

Ukraine, Odesa, Fontanska Doroga, 23
National University “Odessa Academy of Law”,
Department of Maritime and Customs Law

fb

info@lexportus.net.ua