SIDS in the UNCLOS negotiations

The law of the sea has a long history, with a number of competing theories regarding the ocean’s usage. Hugo Grotius dominated the field with his publication in 1609 of Mare Liberum, expressing his theory of freedom of navigation on the high seas.³⁷ The naval powers of the 17th century, such as England, Holland, Portugal and Spain, strongly supported trade and exploration on the high seas. As a result, Grotius’

theory of freedom of navigation of the high seas became the dominant theory of the law of the sea for several centuries, with the exception of the territorial sea of a state which was generally understood to extend to three nautical miles from the baseline.³⁸ The 1945 Truman Proclamation³⁹ began a unilateral extension by the United States of its territorial sea beyond the historic three nautical mile limit in order to mine marine resources in the extended area.⁴⁰ Other states began to follow suit, and it became clear that the pursuit of marine resources necessitated a stable international regime which would codify the law of the sea and regulate its use. The UNCLOS treaties resulted from a series of conferences to achieve this task: UNCLOS I held from 1956 to 1958, UNCLOS II held in 1960 and UNCLOS III from 1973 to 1982.⁴¹ The final conference led to an ‘omnibus’ convention; or the United Nations Convention on the Law of the Sea (also known as UNCLOS), which incorporated the results of the previous conferences, and resulted in the most comprehensive multilateral convention of its time regarding a global natural resource.

37 See Scott J. Shackleford, ‘Was Selden Right? The Expansion of Closed Seas and Its Consequences’, 47 Stanford Journal of International Law (2011) 1–50 at 10–11.

38 This was in part based on the length of a cannon shot in the 17th century. See ibid. at 12.

39 Proclamation 2667 of September 28, 1945: Policy of the United States with Respect to the Natural Re-sources of the Subsoil and Sea Bed of the Continental Shelf, available at <http://www.oceancommission.

gov/documents/gov_oceans/truman.pdf> (visited 13 February 2013).

40 Ibid. at 14. Shackelford notes that this move was motivated by the desire by the US to exert sovereignty over oil and gas deposits in its Continental Shelf.

41 UNCLOS III was later updated by amendments agreed to in the Agreement relating to the Implementa-tion of Part XI of the United NaImplementa-tions ConvenImplementa-tion on the Law of the Sea 1982, otherwise known as the 1994 New York Implementing Agreement. This Agreement altered contentious provisions in the mining arrangements of the International Seabed Authority under Part XI of UNCLOS III.

The long time span over which the UNCLOS negotiations took place saw a number of developments involving not only SIDS, but also most developing countries. Most important among these developments was the transition of what were former de-pendent colonies into newly indede-pendent countries (or NICs). The proliferation of NICs in the 1960s and 1970s changed the nature of the United Nations by shifting the voting majority to the developing (or then third) world. Many developing coun-tries wanted this transition to political independence to be mirrored by economic independence, which they felt required the assertion of full sovereignty over their natural resources. This desire led to a movement by NICs labelled the ‘new interna-tional economic order’ or NIEO, which reached its height in the 1970s.⁴² Mickelson asserts that this tension between developed and developing countries was partly due to the inability of developing countries to equalize global structural inequalities be-tween states.⁴³ She states that:

[i]n the period immediately following decolonization in the 1950s and early 1960s, there was widespread faith in the notion that political independence and formal legal equality would permit the new [s]tates of Africa and Asia to achieve autonomy. This reliance on formal legal and political formulas quickly gave way to a realization that the obstacles to self-determination were considerably more formidable than had been anticipated. The focus on structural impediments in the international economic system arose most notably in the context of the for-mation of the United Nations Conference on Trade and Development (‘UNCTAD’) in 1963 and the coalescing of the ‘Group of 77’ at the first session of UNCTAD in 1964.⁴⁴

UNCTAD⁴⁵ became the forum through which developing countries, through the Group of 77, or G-77 negotiating bloc, were able to assert the NIEO and their de-velopment agendas,⁴⁶ and the G-77 negotiating bloc continues to operate in a number of multilateral fora. Although newly independent, many SIDS played an active role in the NIEO negotiations. The issues and particularities of SIDS rose to the fore during the NIEO movement, partly as a result of the move towards ‘soft’ political issues such as trade, the environment and development.⁴⁷ Jacobsen et al conducted a series of interviews in 1976 with negotiators involved in the NIEO and found that

42 See UN General Assembly Resolutions: ‘Permanent Sovereignty Over Natural Resources’ (A/5217/1962);

‘Declaration on the Establishment of a New International Economic Order’, (A/RES/S-6/3201 (1974));

and ‘Charter of Economic Rights and Duties of States (A/RES/29/3281/1974).

43 Karin Mickelson, ‘Rhetoric and Rage: Third World Voices in International Legal Discourse’, 16 Wisconsin International Law Journal (1997–1998) 353–420 at 362.

44 Ibid. at 362.

45 See <http://www.unctad.org>.

46 Stephen Zamora, ‘Voting in International Economic Organizations’, 75 American Journal of Interna-tional Law (1980) 566–608 at 580. UNCTAD was established in 1964 and works to promote ‘develop-ment-friendly integration of developing countries into the world economy’. For more information on UNCTAD, see <http://www.unctad.org>.

47 Campling, supra note 9, at 239.

CARICOM⁴⁸ negotiators scored highly in coordination of bargaining positions.⁴⁹ The authors themselves found this surprising given the new and relatively weak cen-tral institution of CARICOM, and surmise that CARICOM states may have sent a greater number of negotiators with a higher level of experience and rank to the ne-gotiations.⁵⁰ Part of the NIEO involved the agreement of non-reciprocal access to developed country markets, and SIDS concluded a number of such agreements, including the Lomé Convention,⁵¹ Caribbean Basin Initiative⁵² and the Canada Caribbean Trade Agreement (or CARIBCAN).^53,54 SIDS were also successful in es-tablishing a unit in UNCTAD in order to sustain focus on issues particular to island developing states.⁵⁵ Mickelson argues that developing countries have subsequently used their natural resources as ‘a Southern bargaining chip’⁵⁶ to achieve their eco-nomic goals by leveraging protection of their natural resources for greater gains in economic justice or human rights.⁵⁷ SIDS have aligned their national interests with the international environmental movement, establishing a link between their future as states with environmentalism.⁵⁸

The UNCLOS negotiations became one of the major battlefields upon which this shifting geopolitical transition was shaped. Developing countries were acutely aware that they had not been involved in the formation of the early theories of the law of the sea.⁵⁹ Developing countries wanted to stop developed countries from monopoliz-ing natural resources in the global commons.⁶⁰ In relation to the law of the sea, this

48 The Caribbean Community, or CARICOM, is a regional coalition of Caribbean states which was estab-lished by the original Treaty of Chaguaramus Establishing the Caribbean Community, signed on 4 July 1973. Most of the states in CARICOM agreed to pursue further integration through the CARICOM Single Market and Economy, established in the Revised Treaty of Chaguaramus Establishing the Carib-bean Community, signed in July 2001. For more information on CARICOM see <http://www.caricom.

org/>.

49 Harold K Jacobson, Dusan Sidjanski, Jeffrey Rodamar and Alice Hougassian-Rudovich, ‘Revolutionaries or Bargainers? Negotiations for a New International Economic Order’ 35 World Politics (1983) 335–367 at 353–355.

50 Ibid. at 335.

51 ACP-EEC Convention of Lomé, Lóme, 28 February 1975, in force 1 April 1976; amended and renewed later three times.

52 For more information, see <http://www.ustr.gov/trade-topics/trade-development/preference-programs/

caribbean-basin-initiative-cbi> (visited 5 August 2013).

53 For more information, see CARICOM Secretariat, Office of Trade Negotiations, ‘CARICOM-CANA-DA’, available at <http://www.crnm.org/index.php?option=com_content&view=article&id=51&Item id=121> (visited 5 August 2013).

54 Wendell A. Samuel, ‘Small Island Economies in the New International Environment’ 48 Social and Eco-nomic Studies, Special Monetary Studies Issue (1999) 15–189 at 158–159.

55 Philippe Hein, ‘Small island developing States: origin of the category and definition issues’ in UNCTAD,

‘Is a special treatment of small island developing States possible?’ (UNCTAD, 2004), available at <http://

unctad.org/en/docs/ldc20041_en.pdf> (visited 18 October 2013) at 4–5.

56 Mickelson, ‘Rhetoric and Rage’, supra note 43, at 388.

57 Ibid. at 388.

58 Peter Prows, ‘A Mouse Can Roar: Small Island States, the United Nations, and the End of Free-For-All Fishing on the High Seas’, 19 Colorado Journal of International Environmental Law and Policy (2008) 1–48 at 7.

59 M. Johanne Picard, ‘International Law of Fisheries and Small Developing States: A call for the Recognition of Regional Hegemony’, 31 Texas International Law Journal (1996) 317–342 at 318.

60 See Shackleford, ‘Was Selden Right?’, supra note 37, at 20.

meant negotiating for an equitable sharing of ocean resources. This desire motivated the request by Arvid Pardo, the permanent representative of Malta to the United Nations, and national of an island state, to declare the seabed ‘res communes’; to be exploited for the benefit of mankind as a whole.⁶¹

A major part of the UNCLOS negotiations involved the economic issue of access to, and the mining of, ocean resources, and this conflict illustrated the principles and tensions involved in the NIEO. The international tussle over access to and the right to exploit marine resources stemmed in part from the discovery of manganese nod-ules and other marine resources like pelagic clay, oil and other venous deposits.

Manganese nodules, approximately the size and shape of two to four inch potatoes, contain within them over 37 metals, and had to be mined from the sea floor. The international seabed authority (ISA) was established through Article 156 of UNC-LOS to mine the seabed through a mechanism called the Enterprise. Control over the Enterprise was a contentious issue during the negotiation of UNCLOS, with developed countries arguing for direct access to mining rights for private, multina-tional companies, and developing countries preferring internamultina-tional, collective own-ership through the Enterprise to ensure developed countries did not monopolize ocean resources.⁶² Developing countries on the whole considered the nodules to be the common heritage of mankind, a central concept in the NIEO.⁶³ The position of the G-77 on this issue was led by Latin America which argued for a strong seabed agency, and the G-77 position on the ISA hardened in part due to the ongoing NIEO negotiations.⁶⁴ SIDS participated in this debate, with Guyana being part of the de-veloping country mineral producing states along with Brazil, Chile, Peru, Zaire and Zambia.⁶⁵ SIDS also assumed leadership roles in the conference negotiations, with Tommy Koh from Singapore even assuming the role of Conference President.⁶⁶ One of the legacies of UNCLOS III was the division of the oceans into zones, most notably into an extended⁶⁷ twelve nautical mile territorial sea, and the creation of a two hundred nautical mile exclusive economic zone or EEZ. SIDS participated

61 There were a number of negotiating blocs which exerted their own agendas in the negotiations, including archipelagic states, strait states, and landlocked and geographically disadvantaged states. See the ‘Declara-tion of Principles Governing the Seabed and Ocean Floor’, UNGA Res. 2749 (1970), and Shackleford,

‘Was Selden Right?’, supra note 37, at 20.

62 Ultimately, the parties agreed that private companies would undertake mining activities supervised by the Enterprise with the transfer of technology from developed countries. The ISA was later deregulated in the 1994 New York Implementing Agreement to UNCLOS III to reflect this agreement (see Shackleford,

‘Was Selden Right?’, supra note 37, at 26) and the discovery of land-based sources of nickel proved easier and therefore more feasible to source, thereby reducing the importance and role of the Enterprise.

63 Richard J. Payne and Jamal R. Nassar, ‘The New International Economic Order at Sea’, 17 The Journal of Developing Areas (1982) 31–50 at 43.

64 Robert L. Friedheim and William J. Durch, ‘The International Seabed Authority and the New Interna-tional Economic Order’, 31 Restructuring Ocean Regimes: Implications of the Third United Nations Confer-ence on the Law of the Sea (1977) 343–384, at 343 and 374–376.

65 Ibid. at 358.

66 Prows, ‘A Mouse Can Roar’, supra note 58, at 6.

67 Previously, the territorial sea had been generally considered to extend for three nautical miles.

fully in the UNCLOS III conference, partly because by 1982 the majority of SIDS had achieved political independence. Prior to 1982, all independent Caribbean SIDS (except Cuba) participated in the 1974 Conference in Caracas, Columbia, to prepare for the next UNCLOS round of negotiations. Two years prior to this, Caribbean SIDS had also participated at the Specialized Conference of Caribbean Countries Concerning the Problems of the Sea, which resulted in the Declaration of Santo Domingo.⁶⁸ This Declaration established the concept of the patrimonial seas, with an EEZ separate and apart from a territorial sea.⁶⁹ However, the concept of a patri-monial EEZ was not always fully supported by Caribbean SIDS. In particular, Ja-maica argued for the concept of a matrimonial sea, allowing geographically disad-vantaged states to fish in what would become the EEZs of other states.⁷⁰ Chutkan notes that although Haiti and Trinidad and Tobago signed the Santo Domingo Dec-laration, Barbados and Jamaica (because of their concerns about loss of access to fishery resources) did not sign the Declaration and instead attempted to assert rights for geographically disadvantaged and landlocked states, in conjunction with other non-SIDS.⁷¹ This group only achieved limited success by the inclusion of Articles 69 and 70 of UNCLOS (which address landlocked and geographically disadvantaged states respectively).

Slade explains that the majority of SIDS had specific aspirations for UNCLOS III, including:

• no limitation on the size of a country’s EEZ by reference to its land size or population; and

• that every island would be granted a territorial sea and EEZ.⁷²

Slade explains that SIDS justified these demands by the fact that they required large marine areas to compensate for their lack of territorial land space.⁷³ SIDS were suc-cessful in achieving their main negotiation goals, with large marine EEZs made available to be granted to relatively small countries under UNCLOS III. However,

68 Declaration of the Specialized Conference of Caribbean Countries Concerning Problems of the Sea, Santo Domingo de Guzmán, Dominican Republic, 1972, Doc. CCM/RC/5 (1972). Documents from this Conference are reproduced in 66 The American Journal of International Law (1972) 918–920.

69 Noelle Chutkan, ‘Comments CARICOM and The Law of the Sea: The Case for Extending CARICOM to Fishing in the Caribbean’, Emory Journal of International Dispute Resolution (1987) 385–424 at 394.

70 In describing the ‘patrimonial sea’, the Declaration of Santo Domingo provides, inter alia, that ‘[t]he coastal State has sovereign rights over the renewable and non-renewable natural resources, which are found in the waters, in the seabed and in the subsoil of an area adjacent to the territorial sea called the patrimo-nial sea’, but that within this zone (which, when combined with the territorial sea, should not exceed a maximum of 200 nautical miles) ‘ships and aircraft of all States, whether coastal or not, should enjoy the right of freedom of navigation and overflight with no restrictions other than those resulting from the exercise by the [c]oastal State of its rights within the area’. In contrast, the application of a ‘matrimonial sea’ approach would allow other states to access a coastal state’s EEZ not only for the purposes of air and maritime navigation, but also to exploit natural resources.

71 Ibid. at 394.

72 Tuilona Neroni Slade, ‘The Making of International Law: The Role of Small Island States’ 17 Temple International and Comparative Law Journal 531 (2003) 531–544 at 534–535.

73 Ibid. at 535.

Chutkan argues that not all Caribbean SIDS fully supported the concept of an EEZ.⁷⁴ Carnegie explains that these SIDS may have acquiesced to larger coalition concerns of the G-77.⁷⁵

Developing countries on the whole supported the concept of an EEZ, and this may have contributed to the success of the initiative. In a demonstration of Caribbean-Pacific coalition building, archipelagic states, including The Bahamas, Fiji, the Phil-ippines and Indonesia, formed a negotiation group to assert archipelagic claims and were particularly successful in obtaining generous baseline delimitations.⁷⁶ Some SIDS, particularly in the Caribbean, where there exists an uneven geographic distri-bution of fish, were disadvantaged by this new regime as they were excluded from traditional fishing areas which now fell under the EEZ of another state.⁷⁷ However, the majority of SIDS appear to have been satisfied with UNCLOS’ delimitation of the world’s oceans. Most SIDS saw the achievement of patrimonial EEZs as a ‘win’

in the UNCLOS negotiations as it significantly extended their resource bases. In fact, Aqorau notes that Pacific states’ land mass accounts for only two per cent of their EEZs.⁷⁸ Enforcing jurisdiction over their EEZs and complying with the obligations of UNCLOS for sustainable management of ocean resources, however, has been a more challenging prospect for SIDS. As a result of the establishment of EEZs, SIDS have been largely left on their own to enforce jurisdiction over their EEZs and ensure the sustainable use of ocean resources therein. In order to combat domestic capacity constraints in this regard, SIDS in the Caribbean and Pacific have, to differing ex-tents, turned to regional coalition formation to achieve these ends.

Caribbean SIDS attempted to establish a regional fisheries policy through CARICOM,⁷⁹ the main regional body which was established in 1973. A regional fisheries policy, however, has been resisted by a number of CARICOM states. In-stead, Caribbean SIDS, along with the countries that border the Gulf of Mexico, Atlantic Ocean and Caribbean Sea, have instituted a Caribbean Environment Pro-gramme (CEP), which is a regional seas proPro-gramme for the wider Caribbean region, administered under the auspices of the UNEP Regional Seas Programme.⁸⁰ While the CEP focuses on oil pollution, land-based sources of pollution, and the protection of marine areas through the Cartagena Convention on the Protection of the Wider

74 Chutkan, ‘Comments CARICOM and The Law of the Sea’, supra note 69 at 394.

75 A. R. Carnegie, ‘The Law of the Sea: Commonwealth Caribbean Perspectives’ 36(3) Social and Economic Studies (1987) 99–117 at 104.

76 Ibid. at 104.

77 See Chutkan, ‘Comments CARICOM and The Law of the Sea’, supra note 69, at 391. The author provides examples of regional exclusion of Jamaican fishermen from traditional fishing grounds off the Honduran coast, and Cuban fishermen being excluded from fishing in what are now Bahamian waters.

78 Transform Aqorau, ‘Illegal Fishing and Fisheries Law Enforcement in Small Island Developing States: The Pacific Islands Experience’, International Journal of Marine and Coastal Law (2000) 37–64 at 38.

79 See supra note 48.

80 For more information on CEP, see <http://www.cep.unep.org> and for more information about the UNEP Regional Seas Programme, see <http://www.unep.org/regionalseas/>.

Caribbean Sea⁸¹ and its three Protocols,⁸² it does not establish a regional fisheries policy. The CARICOM Fisheries Resource Assessment and Management Program (CFRAMP), established in 1991, led to the establishment of the Caribbean Re-gional Fisheries Mechanism (CRFM) in 2003. The CRFM has three institutional aspects; a ministerial council, the Caribbean Fisheries Forum and a technical unit/

Caribbean Sea⁸¹ and its three Protocols,⁸² it does not establish a regional fisheries policy. The CARICOM Fisheries Resource Assessment and Management Program (CFRAMP), established in 1991, led to the establishment of the Caribbean Re-gional Fisheries Mechanism (CRFM) in 2003. The CRFM has three institutional aspects; a ministerial council, the Caribbean Fisheries Forum and a technical unit/

In document International environmental law-making and diplomacy review 2012 (sivua 42-49)