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Copyright (c) 1983 The American Society of International Law
American Journal of International Law

ARTICLE: THE LAW OF THE SEA CONVENTION AND THIRD STATES

July, 1983

77 A.J.I.L. 541

Author

Luke T. Lee *

Excerpt

I. INTRODUCTION

The decision of the United States and 22 other countries not to sign the Law of the Sea Convention 1 in Montego Bay, Jamaica, on December 10, 1982, 2 raises the important question of the legal effects of the Convention upon nonsignatories (hereinafter referred to as "third states"). Will the latter be entitled to claim and enjoy treaty provisions beneficial to them, such as those pertaining to military or commercial navigation through international straits, including submerged passage and overflight rights, or will these rights be considered as contractual in nature, exercisable only by states parties? Clearly, the question is of critical importance to the regime of the law of the sea. Since there has been to date no systematic legal analysis of this important question in debates surrounding the Law of the Sea Convention, this essentially legal question has been consigned to general policy pronouncements. 3



This paper explores the bases for the rights of third states under provisions of the Law of the Sea Convention beneficial to them. It explores also the applicability of many provisions in the Convention to states not parties either because such provisions are codifications of antecedent customary law, or because they reflect what has become customary law during and as a result of the Conference on the Law of the Sea. It suggests that in some respects, perhaps, the Convention is generating customary law for the future and many provisions therefore may come to apply to nonparty ...
 
 
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