Law of the sea : from Grotius to the International Tribunal for the Law of the Sea : liber amicorum Judge Hugo Caminos 9789004283787, 9004283781

Table of contents :
Historical perspectives --
The United Nations Convention on the Law of the Sea (UNCLOS) --
The law of the sea in polar regions --
The area --
Islands and archipelagic states --
Navigation : freedom and responsibility --
Piracy --
Recent case law on maritime delimitation --
The International Tribunal for the Law of the Sea --
Dispute settlement procedures and unsettled disputes --
Submarine cables.

Citation preview

Law of the Sea, From Grotius to the International Tribunal for the Law of the Sea

Law of the Sea, From Grotius to the International Tribunal for the Law of the Sea Liber Amicorum Judge Hugo Caminos Edited by

Lilian del Castillo Honorary Board of Editors

Marcelo G. Kohen Francisco Orrego Vicuña Bernard H. Oxman Tullio Treves Rüdiger Wolfrum

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Law of the sea : from Grotius to the International Tribunal for the Law of the Sea : liber amicorum Judge Hugo Caminos / Edited by Lilian del Castillo.   pages cm  Includes bibliographical references and index.  ISBN 978-90-04-28379-4 (hardback : alk. paper) — ISBN 978-90-04-28378-7 (e-book) 1. Law of the sea. 2. Law of the sea—History. I. Castillo, Lilian del, editor. II. Caminos, Hugo, honouree.  KZA1145.L383 2015  341.4’5—dc23

2014035821

isbn 978-90-04-28379-4 (hardback) isbn 978-90-04-28378-7 (e-book) Copyright 2015 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Nijhoff and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper.

Contents Preface  xi Biography of Hugo Caminos  xiv Publications of Hugo Caminos  xvii List of Abbreviations  xxiv Contributors  xxvi

PART 1 Introduction 1 In Honor of Hugo Caminos  3 Bernard H. Oxman

PART 2 Historical Perspectives 2 The Contribution of Andrés Bello to the Law of the Sea in the Chilean Civil Code  9 Jeannette Irigoin Barrenne 3 Hugo Grotius and the Law of the Sea  18 M.C.W. Pinto 4 The Origin of the Theory of Sovereignty of the Sea  48 Tullio Scovazzi 5 Reflections on the ‘Abstention Doctrine’ in the Diplomatic History of Modern Ocean Law  64 Harry N. Scheiber 6 International Courts and Tribunals and the Development of the Law of the Sea in the Age of Codification  77 Tullio Treves 7 The Freedom of Navigation: Modern Challenges Seen from a Historical Perspective  89 Rüdiger Wolfrum

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PART 3 The United Nations Convention on the Law of the Sea (Unclos) 8 UNCLOS at 30: Some Reflections  107 Tommy Koh 9 Is the Internal Waters Regime Excluded from the United Nations Convention on the Law of the Sea?  110 Marcelo G. Kohen 10 Le rôle du Secretariat des Nations Unies dans l’application de la Convention des Nations Unies sur le droit de la mer  125 Annick de Marffy-Mantuano 11 The Contributions of Latin America to the Implementation of the UNCLOS  144 Luis Valencia-Rodríguez

PART 4 The Law оf the Sea in Polar Regions 12 Some Comments on the Whaling in the Antarctic Judgment  175 Lilian del Castillo 13 The Exercise of Jurisdiction over Activities in Antarctica: A New Challenge for the Antarctic System  192 Philippe Gautier 14 The System of Inspection of the Commission for the Conservation of Antarctic Marine Living Resources  211 Ariel R. Mansi 15 Problems and Controversies Concerning Freedom of Navigation in the Arctic  225 Janusz Symonides

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PART 5 The Area 16 International Subjectivity of Corporations Operating in the Area and Universal Jurisdiction for Environmental Damage  245 Pablo Ferrara 17 The Common Heritage of Mankind: 21st Century Challenges of a Revolutionary Concept  272 María Fernanda Millicay

PART 6 Islands and Archipelagic States 18 Archipelagic States and the New Law of the Sea  299 Vincent P. Cogliati-Bantz 19 About the Islands  318 Antonio Remiro Brótons

PART 7 Navigation: Freedom аnd Responsibility 20 Coastal and Flag States in Situations of Distress at Sea Giving Rise to Environmental Damage  339 Agustín Blanco-Bazán 21 Law of the Sea, Naval Blockades and Freedom of Navigation in the Aftermath of Gaza Flotilla Incident of 31 May 2010  356 Nilufer Oral 22 Les compétences de l’Etat côtier en matière de sécurité de la navigation maritime  377 Roberto Virzo

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PART 8

23 The Fight Against Piracy and the Enrica Lexie Case  397 Angela Del Vecchio 24 Piracy vs. International Armed Conflict  423 Yoram Dinstein 25 Un nouvel envisagement sur la piraterie maritime  435 Edison González-Lapeyre 26 Combating Piracy and Armed Robbery Off the Somali Coast and the Gulf of Guinea  456 James L. Kateka 27 Combating Piracy: New Approaches to an Ancient Issue  469 Helmut Tuerk

PART 9 Recent Case Law оn Maritime Delimitation 28 Recent Judicial Decisions Concerning Maritime Delimitation  495 David H. Anderson 29 The Bay of Bengal Case before the International Tribunal for the Law of the Sea  512 Gudmumdur Eiriksson 30 The Decision on the Maritime Boundary between Chile and Perú: International Law Revisited  529 María Teresa Infante-Caffi 31 Some Remarks on the Territorial and Maritime Dispute (Nicaragua v. Colombia) Case  545 Rafael Nieto-Navia 32 International Law Issues in the Judgment of the International Court of Justice in the Peru-Chile Maritime Dispute Case  563 Francisco Orrego-Vicuña

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33 The Origin of the Principle of Natural Prolongation: North Sea Continental Shelf Cases Revisited  583 Jin-Hyun Paik

PART 10 The International Tribunal for the Law the Sea 34 Fraud on the Tribunal?  597 Jean-Pierre Cot 35 The Juridical Personality and Nature of the International Tribunal for the Law of the Sea  608 Miguel García García-Revillo 36 Les avis consultatifs du Tribunal International du Droit de la Mer  622 Tafsir Malick Ndiaye

PART 11 Dispute Settlement Procedures and Unsettled Disputes 37 The Terra Nullius Requirement in the Doctrine of Effective Occupation: A Case Study  657 Bing Bing Jia 38 United Nations Convention on the Law of the Sea and Provisional Arrangements Relating to Activities in Disputed Maritime Areas  674 Kamal Hossain 39 La délimitation du plateau continental du Golfe Persique : une entreprise inachevée  685 Djamchid Momtaz 40 Regional Fisheries Bodies and Regional Fisheries Management Organizations and the Settlement of Disputes Concerning Marine Living Resources  698 Jean-François Pulvenis de Séligny-Maurel

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41 The UNCLOS and the Settlement of Disputes: The ARA Libertad Case  713 Susana Ruiz-Cerutti

PART 12 Submarine Cables 42 Submarine Cables and the International Law of the Sea  725 Thomas A. Mensah List of Cases  751 Subject Index  755

Preface This Liber Amicorum has been prepared to honor a distinguished scholar with an accomplished career path. In fact, this is the acknowledgement of disciples, colleagues and friends all over the world to the multifacetic and prolific life of Hugo Caminos, a professional who has excelled as a professor, diplomat, publicist, international official, academic and judge and continues to contribute his wisdom as an untiring author, and an active member of the Institut de Droit International and of the National Academy of Law in Argentina. However, regardless of his professional achievements, it would not be a faithful portrayal of his personality if it were not accompanied by the unfaltering moral and intellectual integrity that makes up his human essence. A publication to celebrate such multiple achievements could have addressed many subjects but the choice has been to focus on a field of vast knowledge by the honoree, the Law of the Sea, as global a subject as global is the sea. In fact, the uniqueness of the sea called for a single legal framework which after a decade-long negotiations was achieved at the Third United Nations Conference on the Law of the Sea when on April 30, 1982, it adopted the United Nations Convention on the Law of the Sea (UNCLOS). The great endeavour of drafting a comprehensive instrument to deal with areas and activities taking place at sea, a compendium of rules to be applied by every State to the world oceans without the preparatory work of the International Law Commission, as was the case for the First United Nations Conference on the Law of the Sea, was commissioned to a great extent to the Office of the Special Representative of the Secretary-General of the United Nations for the Third United Nations Conference on the Law of the Sea. Hugo Caminos was appointed Deputy Director of that Office and all along the process carried out the relevant task of decanting texts and institutions from myriads of proposals, fostering negotiations among representatives. In his role, he was not an observer but a major participant in the drafting of the new law of the sea and his commitment marked a turning point in his professional life. Later, when UNCLOS came into force on 16 November 1994 and the newly established International Tribunal for the Law of the Sea became a reality in 1996, Hugo Caminos was elected Judge and performed in that capacity, following his reelection, until 2011. Such an insightful approach to the drafting and implementation of the modern law of the sea has made him one of the leading specialists in the field of this branch of international law. Consistent with the honoree’s background, the accomplished contributors to this book address relevant issues of the law of the sea, dealt with in eleven

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chapters, covering from historical perspectives to the UNCLOS, the law of the sea in polar regions, the Area, the particular issues of islands and archipelagic States, the freedom of navigation and its attached responsibilities, piracy and the latest awards on maritime delimitation, as well as recent practice of the International Tribunal on the Law of the Sea (ITLOS), dispute settlement procedures and some unsettled maritime disputes, from the respective author’s point of view. Even though the vast experience of the honoree in the law of the sea geared the content of these essays towards that subject, this circumstance in no way undermines his expertise in international law as evidenced in his publications.1 Life has granted him the opportunity to act in many capacities and he has always honored those opportunities performing in every position with utmost dedication. Accordingly, he has been able to successfully merge the knowledge of a professor and an academician, both in his native Argentina and abroad, the practice of the bilateral diplomacy as an Argentinean ambassador to Brazil, the experience of multilateral diplomacy in his ten years as the Under Secretary of Legal Affairs of the Organization of American States, the commitment of a high-rank UN official in his eight years at the Law of the Sea Conference, and the judicial function in his fifteen years’ tenure at the bench as a Judge at the International Tribunal for the Law of the Sea. In all these capacities, Judge Caminos brought in an exceptional ability to seek consensus, reaping friendships in the various capacities he has performed and the many cities in which he has lived. This ample experience has made Hugo Caminos the respected scholar he currently is, turning his name into a hallmark of whatever activity he takes part in. To honor him in that capacity is a pleasant duty for his friends and colleagues, and it was certainly the idea behind the preparation of this book. Finally, it is gratifying to recall that Hugo Caminos was my professor of Public International Law at the School of Law of the University of Buenos Aires, and a decisive influence on my choice of this branch of the law as my niche in the legal world. After my graduation, while starting post graduate studies I became an assistant teacher working at his chair for several years. When other commitments led him to live abroad, he never relinquished his affection for his country but kept in touch with his former disciples and colleagues whenever possible. This Liber Amicorum has the privilege of enjoying the cooperation of a renowned Honorary Board of Editors who have contributed with their knowledge and time so that this tribute could become a reality, in addition to their 1  Infra 8–15.

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essays and Introduction. To all of them, Marcelo G. Kohen, Francisco Orrego Vicuña, Bernard H. Oxman, Tullio Treves and Rüdiger Wolfrum, our deepest gratitude. It is also a pleasure to highlight the cooperation in editing tasks carried out by Dr. Pablo Ferrara, postdoctoral researcher at the University of Groningen, The Netherlands, by some young teachers of the School of Law of the University of Buenos Aires, Marina Fucito, Leopoldo Godio and Andrea Mackielo and of an undergraduate teaching assistant, María Jimena Ricci, whom we thank for the work undertaken. The support of Brill Nijhoff Publishers, provided by Marie Sheldon and Lisa Hanson has been key to the successful outcome of this project. The editing was, thanks to all those taking part, an enjoyable joint undertaking. On behalf of all the participants of a book made out of friendship, we trust that Hugo Caminos will continue to contribute his wisdom to the realm of law. Lilian del Castillo Buenos Aires, June 2014

Biography of Hugo Caminos Hugo Caminos was born in Buenos Aires, Argentina, on March 16 1921, to an intellectually gifted family. With his two brothers, Horacio and Ricardo, they form a triad of outstanding scholars with remarkable careers both in Argentina and abroad. A successful architect, Horacio Caminos was also an MIT professor and researcher whereas Ricardo A. Caminos, an Oxford DPhil, was a renowned Egyptologist devoted to epigraphy and paleography whose invaluable library is today the Ricardo Caminos Memorial Library housed at the British Exploration Society’s headquarters in London. The international law scholar who years later would become a Judge at the International Tribunal for the Law of the Sea attended High School at Colegio Nacional Bartolomé Mitre in Buenos Aires. In 1942 he received his law degree from the University of Buenos Aires School of Law, where he had been admitted in 1939, and in 1964 was awarded the Juris Doctor degree. From 1945 to 1946 he pursued post-graduate courses on Public International Law at the University of California at Berkeley, where he attended the courses and seminars taught by Professor Hans Kelsen, who became an everlasting influence. During the 1945 San Francisco Conference, Professor Kelsen found Caminos a temporary position in the US Office of War Information, which involved attending meetings and interviewing delegates. This gave him an opportunity to experience a historic diplomatic conference for the first time. Once back in Argentina, Hugo Caminos started his teaching career in Public International Law at the University of Buenos Aires School of Law. He was in charge of the General Course on Public International Law and progressively became an Adjunct Professor (1956–1957), Associate Professor (1958–1962), Full Professor (1963–1987) and Emeritus Professor (1988), crowning a lifelong dedication to teaching, researching and writing on International Law. Teaching has been, as the following brief enumeration shows, the unyielding vocation of the honoree of this book, a remarkable human being with a passion for teaching. Thus, Hugo Caminos was, in Argentina, a Professor of Public International Law at the National Foreign Service Institute (ISEN), in 1963, 1967 and 1972, while he was abroad; Director of Studies of the Englishspeaking Section (Public International Law), at The Hague Academy of International Law (1973); a Lecturer on International Law and the Law of the Sea at the United Nations Institute for Training and Research (UNITAR) courses in Asia, Africa, Europe, the United States, Latin America and the Caribbean between 1973 and 1985, e.g., he gave the first courses on the Law of the Sea in Praia, Cape Verde, in Bissau, Guinea-Bissau and in Dacca, Bangladesh. He was

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also a Lecturer at the Institute of International Public Law and International Relations of Thessaloniki, Greece, in 1986, 1992, 1994 and 1999; a Coordinator of the annual courses on international law organized by the Organization of American States Inter-American Juridical Committee from 1984 to 1994; a Visiting Professor on International Law and the Law of the Sea at the University of Miami School of Law from 1995 to 2011; and a Visiting Professor on International Law of the Sea at the Libera Universitá di Studi Sociali, LUISS, Rome, in 2008. Alongside his development in the field of teaching, Hugo Caminos pursued a successful career in diplomacy at the Ministry of Foreign Affairs and Worship of Argentina. He was appointed Director of the International Organizations Department (1971–1972), representing the country in the Sixth Committee of the United Nations General Assembly (1971–1972). He was subsequently appointed Legal Counsel (1972–1973) and later became Argentina’s Ambassa­ dor to Brazil (1981–1984). Hugo Caminos additionally developed an impressive career in regional and international organizations. In 1974 he was appointed Deputy Director of the Office of the UN Secretary-General Special Representative for the Third United Nations Conference on the Law of the Sea, a key role that he played in the drafting of UNCLOS until 1981. At the regional level, he was appointed UnderSecretary for Legal Affairs and Legal Counsel, Organization of American States (OAS), Washington, D.C. (1984–1994). The judiciary was a new field for Hugo Caminos when in 1996 he became judge at the first election of the International Tribunal for the Law of Sea, and re-elected in 2002. During his tenure, he was President of the Seabed Disputes Chamber (2005–2008), Member of the Special Chamber appointed for the Case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean 2000–2009, and President of the Chamber for Fisheries Disputes for periods 1997–1999, 2002–2005 and 2008– 2011, when his term was over. Regarding academic associations, Judge Caminos is a Member of the Institut de Droit International (presented to the Selection Committee by Mme. Bastid and Shabtai Rosenne, Associate 1979, Member 1983–present, 2nd. VicePresident 2003–2005). He has been a Member of the Bar Association of Buenos Aires since 1951; a Member of the International Curatorium of the Institute of International Public Law and International Relations, Thessaloniki since 1987; as well as a Member of the Association Internationale du Droit de la Mer; an Emeritus Member of the American Society of International Law; a Member of the Asociación Latinoamericana de Derecho Internacional Público y Organización Internacional (ALADIP) and was a Former Correspondent

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Member in Argentina of the Hans Kelsen Institut of Vienna, among other institutions. He also served as a Member of Argentina’s National Group at the Permanent Court of Arbitration (1962–1976) and as a Member of the Arbitral Tribunal of the Administrative Commission of the River Uruguay (2001–2003). Hugo Caminos has been invited as a lecturer and key-note speaker by a vast number of academic institutions, e.g., Columbia University (1973, 1978), Cornell Law School (1977), St. John’s College, Oxford (1979), Inter-American Defense College (1979, 1986), University of Brasilia, Department of Political Science and International Relations (1982), University of Sao Paulo School of Law, 1982; University of Pernambuco School of Law, Recife, 1983; American University Law School, Washington, D.C., 1985; New York University Law School, 1984 and 1985; Canadian Council on International Law, Ottawa, Annual Meetings, 1984, 1985 and 1991, Georgetown University Law School, 1987; George Washington University Law School, 1989; George Mason University Center for Conflict Resolution, 1987–1993; University of Dayton, Department of Political Science, Ohio, 1989. In 1996, Hugo Caminos was awarded the ‘Konex Prize in Procedural, International and Integration Law’, Konex Foundation; and in 2002 he was presented with the ‘Lawyer of the Americas Award’ by the University of Miami, Inter-American Law Review (2002) and honored for his outstanding contribution in the field of international law by the Centre for International Legal Studies, School of International Studies, Jawaharlal Nehru University, New Delhi, India, in 2006. What is more, the Conference organized by the Law of the Sea Institute on “Institutions and Regions in Ocean Governance” held at the International Tribunal for the Law of the Sea in Hamburg, Germany, on October 5–6, 2010, was dedicated to “Judge Hugo Caminos, Prolific Scholar, Providing Clarity on Principles of International Law for his Lifetime Commitment to the Development of the Law of the Sea.” A precise image of Hugo Caminos’s vocation and wisdom. Buenos Aires, June 2014

Publications of Hugo Caminos Bibliografía de Hans Kelsen, (with E.C. Hermida), Tipográfica Editora Argentina, Buenos Aires, 1949, 1–61. “La Enseñanza Universitaria del Derecho Internacional Público en los Estados Unidos”, Revista Jurídica de Buenos Aires, Buenos Aires, 1958, 3:137–160. “La Corte Internacional de Justicia”, in Curso para la enseñanza sobre las Naciones Unidas, Facultad de Ciencias Económicas, Comerciales y Políticas de la Universidad Nacional del Litoral, Rosario, 1961. “El Secretario General de las Naciones Unidas”, in Curso para la enseñanza sobre las Naciones Unidas, Facultad de Ciencias Económicas, Comerciales y Políticas de la Universidad Nacional del Litoral, Rosario, 1962. Translation into Spanish (with E. C. Hermida) of Hans Kelsen’s Principles of International Law, New York, 1952, El Ateneo, Buenos Aires, 1965, XIX, 1–397. La Convención Europea sobre Derechos Humanos: Resultado de una experiencia Internacional, Instituto de Publicaciones del Centro Naval, Buenos Aires, 1970, 7–22. “Un Mecanismo Internacional para los Fondos Marinos”, Revista La Ley, Buenos Aires, 1973, 157: 950–964. “The Law of the Sea at the Caracas Session: a Brief Evaluation”, 14 Columbia Journal of Transnational Law, 1975, 80–86. “El aprovechamiento y preservación de los recursos vivos del mar—Los problemas involucrados en las negociaciones de Naciones Unidas y otros foros”, Comisión Económica para América Latina: Economía de los Océanos, 1977, E/ CEPAL/L.156/Rev.1, 55–82. “La Explotación de los Recursos Vivos del Mar: Los Problemas Involucrados en las Negociaciones de Naciones Unidas y otros foros”, Comisión Económica para América Latina: Economía de los Océanos, 1978, E/CEPAL/L.156/Rev.2, 75–96. “El Régimen de la Pesca y la Conservación de los Recursos Vivos en la Zona Económica Exclusiva: Implicaciones Jurídicas y Económicas”, Comisión Económica para América Latina: Economía de los Océanos, 1978, E/CEPAL/L.156/Rev.2, 97–125. “Aspects of NIEO in the Third UN Law of the Sea Conference: Exclusive Economic Zone ant the Continental Shelf”, in Legal Aspects of the New International Economic Order, (K. Hossain, ed.), Frances Pinter Ltd., London, Nichols Publishing Company, New York, 1980, 188–192. “Algunas Consideraciones Sobre la Contribución de la Tercera Conferencia de las Naciones Unidas sobre el Derecho del Mar a la Creación de un Nuevo

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Régimen Jurídico para los Océanos”, Revista Argentina de Derecho Militar, October 1981, 1:31–38. “Nuevos mecanismos procesales para la eficacia de la solución pacífica de las controversias, con particular referencia a la solución no judicial en el ámbito de las Naciones Unidas”, in Perspectivas del Derecho Internacional Contemporáneo, Vol. 2, Instituto de Estudios Internacionales, Universidad de Chile, 1981, 11–31. “The Régime of fisheries in the Exclusive Economic Zone”, in Exclusive Economic Zone: A Latin American Perspective, F. Orrego Vicuña (ed.), Boulder, Colorado, Westview Press, 1984, 143–158. “The Question of Competence in Intra-Regional Conflicts and Disputes: The United Nations and the OAS Charter”, in The Peaceful Settlement of Disputes, Proceedings of the 1984 Conference of the Canadian Council on International Law, Ottawa, 1984. “The Law of the Sea Convention, Customary International Law and the Rule of Law within the International Community”, 18 L. Sea Inst. Proc., University of Hawaii, 1985, 475–479. “Les sources du droit de la mer” (with V. Marotta Rangel), in Dupuy and Vignes (eds.) Traité du nouveau droit de la mer, Paris-Bruxelles, Economica, 1985, 27–121. “Progressive Development of International Law and the Package Deal” (with M.R. Molitor), American Journal of International Law, 1985, 79:871–890. The Latin American Contribution to International Law, ASIL 80th Annual Meeting Proceedings, Washington, D.C., 1986, 157–161. “La relación entre la Convención de las Naciones Unidas sobre el Derecho del Mar y la costumbre internacional a la luz del acuerdo global”, Revista Jurídica de Buenos Aires, Facultad de Derecho y Ciencias Sociales de la Universidad de Buenos Aires, 1986, 9–41. “Some considerations of the Protection of Refugees in the Inter-American System, with Particular reference to the Situation of Refugees in Central America,” in Human Rights and the Protection of Refugees under International Law. Proceedings of a Conference in Montreal. November 29–December 2, 1987. Alan E. Nash (ed.) John P. Humprey (Rapporteur). The Institute for Research on Public Policy. Halifax. Canadian Human Rights Foundation, 1988, 95–103. “The Legal Regime of Straits in the 1982 Convention on the Law of the Sea”, Académie de Droit International de La Haye, Recueil des Cours, Vol. 205, 1987, 9–245. “The Inter-American Convention on International Commercial Arbitration”, Foreign Investment Law Journal, International Centre for Settlement of Investment Disputes Review, Vol. 3 Nro. 1, Spring 1988, 107–117.

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“La contribución de los países latinoamericanos a la Convención de las Naciones Unidas sobre el Derecho del Mar de 1982”, Revista de la Asociación Argentina de Derecho Comparado, Nro. 7, 1988, 75–77. “New Departures in the Exercise of Inherent Powers by American States: The Central American Situation”, (with Roberto Lavalle), American Journal of International Law, 1989, 83:395–402. “L’exercice de pouvoirs implicites par le Secrétaire Général des Etats américains dans le cadre de l’établissement de la paix en Amérique centrale”, XXXV Annuaire français de Droit International, París, 1989, 189–203. “Los Estrechos Exceptuados del Régimen Jurídico de los Estrechos utilizados para la Navegación Internacional de la Convención de las Naciones Unidas sobre el Derecho del Mar”, in Temas de Derecho Internacional en Homenaje a Frida M. Pfirter de Armas Barea, Fundación del Centro de Estudios Internacionales de Buenos Aires, 1989, 211–226. “Algunas Consideraciones sobre la Protección del Medio Marino en los Estrechos Utilizados para la Navegación Internacional en la Convención de las Naciones Unidas sobre el Derecho del Mar”, 17 Revista de la Comisión Permanente del Pacífico Sur, Bogotá, 1989. “State Practice in the Developing World: Latin America”, Proceedings of the 14th. Annual Seminar of the Center for Oceans Law and Policy, State practice and the UN Convention on the Law of the Sea. Cascais, Portugal, 19–22 April 1991, University of Virginia, School of Law (compiled by M.H. Nordquist ed.), 1991, 92–109. “Sources of the Law of the Sea” (with V. Marotta Rangel), in R.J. Dupuy and D. Vignes (eds.), A Handbook on the New Law of the Sea, Vol. 1, Dordrecht, Boston, Lancaster, 1991, 29–139. “La Convención de las Naciones Unidas y la Práctica de los Estados Latinoamericanos,” International Meeting of Legal Experts on Latin America and the United Nations Convention on the Law of the Sea, Permanent Commission for the South Pacific (PCSP), Santiago, Chile, May 1991, 13–17. Paper presented at the Symposium on a Tribunal of Justice for the Southern Cone Common Market (Mercosur), held at the Artigas Institute of the Ministry of Foreign Affairs, Montevideo, 30 October–1 November 1991, Ediciones del Instituto Artigas del Servicio Exterior, Montevideo, 1992, 75–81. “The UN Convention on the Law of the Sea: Some Developments in the Legal Regime of Marine Spaces under National Sovereignty of Jurisdiction”, in Thesaurus Acroassium, Institute of Public International Law and International Relations, Thessaloniki, 1991, 319–370. “Luis A. Podestá Costa”, lecture delivered in tribute to his memory at the inaugural session of the XVIII Course of International Law, Interamerican Juridical Committee, Vol. 12, Washington, D.C., 1991, 1–12.

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“La OEA: Pasado, Presente y Futuro”, in La Organización de los Estados Americanos en el Centenario del sistema Interamericano, compiled by Louis Perret and Águeda Reus-Bazán, Universidad Autónoma de México, Instituto de Investigaciones Jurídicas, México, 1992, 18–26. “Latin American and the Law of the Sea: Past, Present and Future”, in Miles and Treves (eds.), The Law of the Sea: New Worlds, New Discoveries, Proceedings of the Law the Sea Institute, Nro. 26, Genoa, Italy, 1992, 79–90. “CONVEMAR y la práctica de los Estados Latinoamericanos”, Revista de la Comisión Permanente del Pacífico Sur, Santiago de Chile, 1992, 20:43–54. “Democratic Legitimacy in the Inter-American System,” 87th Annual meeting of the American Society of International Law panel on “The Effects of the New World Order on the Third World”, Proceedings, Washington, D.C., 31 March–3 April 1993, 41–48. “La legitimidad de la Democracia Representativa y su Reciente Evolución en la Organización de los Estados Americanos”, in International Law in an Evolving World: Liber Amicorum in Tribute to Professor Eduardo Jiménez de Aréchaga, Montevideo, 1994, 1037–1057. “Humanitarian Intervention and the Inter-American System”, in N. Al Nauimi and R. Meese (eds.), International Legal Issues arising under the United Nations Decade of International Law, Kluwer, Qatar, 1995, 963–998. “La intervención humanitaria ante el derecho internacional”, Academia Nacional de Derecho y Ciencias Sociales de Buenos Aires, Anales año XLI, Nro. 34, Buenos Aires, 1996, 11–43. “The Role of the United Nations and the Regional Organizations in the Maintenance of International Peace and Security: The case of the InterAmerican System”, in Thesaurus Acroassium, Vol. XXIII, Institute of Public International Law and International Relations, Thessaloniki, 1998, 187–215. “Harmonization of pre-existing 200-mile claims in the Latin American region with the United Nations Convention on the Law of the Sea and its exclusive economic zone” (Symposium: Building new regimes and institutions for the sea), 30 (1) University of Miami Inter-American Law Review, 1998, 9–30. “The role of the Organization of American States in the promotion and protection of democratic governance”, Académie de Droit International de La Haye, Recueil des Cours, Vol. 273, 1998, 103–237. “La Declaración Universal de los Derechos Humanos: 1948–1998”, Academia Nacional de Derecho y Ciencias Sociales, Anales Año XLIII, Buenos Aires, 1998, 36:9–19. “Some Considerations on Harmonization of Pre-existing 200 Mile Territorial Sea Claims in Latin America with Part V of the United Nations Convention

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on the Law of the Sea”, in Volkmar Götz, Peter Selmer and Rüdiger Wolfrum (eds.), Liber amicorum Günther Jaenicke—Zum 85. Geburtstag, Springer, Berlin, 1998, 465–482. “El individuo y las organizaciones no gubernamentales en las resoluciones sobre Derecho Internacional del Medio Ambiente del Institut de Droit international (Sesión de Estrasburgo, 1997)”, Seminar of Experts on the Right to the Environment, Bilbao, Spain, 10–13 February 1999 under the auspices of UNESCO-High Commissioner for Human Rights, in Declaración de Biskaia sobre el Derecho al Medio Ambiente, Bilbao, 1999, 219–224. “The Jurisdiction of the International Tribunal for the Law of the Sea: an Overview” in M.H. Nordquist and J.N. Moore, eds., Oceans Policy: New Institutions, Challenges and Opportunities, M. Nijhoff, 1999, 93–108. “José María Ruda (1924–1994)”, in Liber Amicorum in Memory of Judge José María Ruda, Kluwer Law International, 2000, XXXIII–XL. “Algunas Consideraciones acerca de la Solución de Controversias en la Convención de las Naciones Unidas sobre el Derecho del Mar y el Tribunal Internacional del Derecho del Mar” in José M. Sobrino Heredia, Cuadernos de Derecho Pesquero, Vol. 2, Fundación Pedro Barrié de la Maza, La Coruña, 2000, 23–34. “Las normas sobre ejecución en la Convención de las Naciones Unidas sobre Derecho del Mar”, in Cursos Euro-mediterraneos Bancaja de Derecho Internacional, Vol. 5 (J. Cardona, ed.), Castellón, 2001, 565–612. Law of the Sea, The Library of Essays in International Law, Ashgate-Darmouth, England, 2001, XXVIII–510. “The establishment of specialized courts”, in Myron H. Nordquist and John Norton Moore (eds.), Current Marine Environmental Issues and the International Tribunal for the Law of the Sea, The Hague, Martinus Nijhoff Publishers, 2001, 33–40. “Algunas consideraciones sobre la creación de tribunales internacionales especializados: el caso del Tribunal Internacional del Derecho del Mar”, 47 (2da. Época, 40), Anales de la Academia Nacional de Derecho y Ciencias Sociales de Buenos Aires, 2002, 1–20. “The Creation of Specialized Courts: The Case of the Tribunal for the Law of the Sea”, in Nisuke Ando, Edward McWhinneyand and Rüdiger Wolfrum, eds., Liber Amicorum Judge Shigeru Oda, Kluwer, The Hague, 2002, 569–574. “The Inter-American System for the Protection of Human Rights”, in Janusz Symonides (ed.), Human Rights: International Protection, Monitoring, Enforcement, UNESCO, Ashgate Aldershot, Burlington, 2003, 165–211.

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“The written proceedings” in P. Chandrasekhara Rao and Ph. Gautier (eds.), The Rules of the International Tribunal for the Law of the Sea: A Commentary, Martinus Nijhoff Publishers, Leiden/Boston, 2006, 171–190. “The International Tribunal for the Law of the Sea: an overview of its jurisdictional procedure”, in Angela Del Vecchio (ed.), New international tribunals and new international proceedings, Giuffrè Editore, Milano, 2006, 17–33. “Algunas consideraciones acerca del desarrollo del derecho del mar en el marco de la Convención de las Naciones Unidas sobre el Derecho del Mar”, Jornadas de Derecho Internacional, Organization of American States, Washington, D.C., 2007, 539–556. “Categories of International Straits Excluded from the Transit Passage Regime under Part III of the United Nations Convention on the Law of the Sea”, in Tafsir M. Ndiaye and Rüdiger Wolfrum (eds.), Law of the Sea. Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas A. Mensah, Martinus Nijhoff, Leiden/Boston, 2007, 583–592. “The Creation of the International Tribunal for the Law of the Sea as a Specialized Court under the United Nation Convention for the Law of the Sea”, in Marcelo G. Kohen (ed.), Promoting Justice, Human Rights and Conflict Resolution through International Law: Liber Amicorum to Lucius Caflisch, Martinus Nijhoff, Leiden, 2007, 823–835. “The International Tribunal for the Law of the Sea and its alleged threat to the unity of international law”, in Rafael Casado Raigón and Giuseppe Cataldi (eds.), Mélanges de droit de la mer offerts à Daniel Vignes, Bruylant, Bruxelles, 2009, 69–81. “The Creation of the International Tribunal for the Law of the Sea as a Specialized Court”, in Aristotle Constantinides and Nikos Zaikos (eds.), The Diversity of International Law: Essays in Honour of Professor Kalliopi K. Koufa, Martinus Nijhoff, Leiden-Boston, 2009, 97–108. “El desarrollo del Derecho del Mar en el marco de la Convención de las Naciones Unidas sobre el Derecho del Mar”, in Luis Fernando Alvarez Londoño, S.J., Rafael A. Prieto Sanjuán y Andrés Téllez Núñez (eds.), El Derecho Internacional: entre lo jurídico y lo político. Homenaje al profesor Rafael Nieto Navia, Pontificia Universidad Javeriana, Facultad de Ciencias Jurídicas, Sociedad Latinoamericana para el Derecho Internacional, Grupo Editorial Ibáñez, Bogotá, 2010, 241–259. “Enforcement Jurisdiction under the United Nations Convention on the Law of the Sea: An overview”, in Kalliopi Koufa (ed.), International Law Enforcement. New Tendences, Thesaurus Acroasium, Vol. XXXVI, Institute of Public International Law and International Relations, Thessaloniki, 2010, 327–372.

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“Algunas Consideraciones sobre la Creación de Tribunales Internacionales Especializados: El caso del Tribunal Internacional del Derecho del Mar”, in Memorias de la CPPS—Ponencias sobre recursos vivos y no vivos, Guayaquil, Ecuador, 2010, 30–41. “La Convención de las Naciones Unidas sobre el Derecho del Mar y el desarrollo del Derecho del Mar”, XXXVIII Curso de Derecho Internacional, Organization of American States, Washington, D.C., 2012, 265–283. ‘Contiguous Zone’, in R. Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law, Vol. II, Oxford University Press, Oxford, 2012, 714–719. ‘I’m Alone, The’, in R. Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law, Vol. V, Oxford University Press, Oxford, 2012, 82–84. ‘Hot Pursuit’, in R. Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law, Vol. IV, Oxford University Press, Oxford, 2012, 1000–1003. ‘Saavedra Lamas Treaty (1933)’, in R. Wolfrum (ed.), The Max Planck Ency­ clopedia of Public International Law, Vol. VIII, Oxford University Press, Oxford, 2012, 1082–1085. “Enforcement Jurisdiction under the United Nations Convention on the Law of the Sea”, in Holger P. Hestermeyer, Doris König, Nele Matz-Lück, Volker Röben, Anja Seibert-Fohr, Peter-Tobias Stoll and Silja Vöneky (eds.), Coexistence, Cooperation and Solidarity, Liber Amicorum Rüdiger Wolfrum, Martinus Nijhoff Publishers, Leiden-Boston, 2012, 737–776. “The Jurisdiction and Procedure of the International Tribunal for the Law of the Sea: An Overview”, in, J.M. Van Dyke, S.P. Broder, S. Lee and J.-H. Paik (eds.), Governing Ocean Resources: New Challenges and Emerging Regimes, A Tribute to Judge Choon-Ho Park, Martinus Nijhoff, Leiden-Boston, 2013, 259–273. “The Growth of Specialized International Tribunals and the Fears of Fragmentation of International Law”, in Nerina Boschiero, Tullio Scovazzi, Cesare Pitea and Chiara Ragni (eds.), International Courts and the Development of International Law: Essays in Honour of Tullio Treves, Springer, 2013, 55–64. “A succint historical overview of the status of straits in international law”, in Liber Amicorum Budislav Vukas, Koninklijke Brill N.V., Leiden (in print). The Legal Regime of Straits: Contemporary Challenges and Solutions (with Vincent P. Cogliati-Bantz) Cambridge University Press (in print).

List of Abbreviations ADM AFDI AJIL ASIL BIMCO BYIL CNUDM ECHR EEZ EU ICC-IMB

Annuaire de Droit de la Mer Annuaire Français de Droit International American Journal of International Law American Society of International Law Baltic and International Maritime Council British Yearbook of International Law Convention de Nations Unies sur le Droit de la Mer European Court of Human Rights Exclusive Economic Zone European Union International Chamber of Commerce—Commercial Crime Services’ International Maritime Bureau (IMB) ICJ-CIJ International Court of Justice ICSID International Centre for Settlement of Investment Disputes ICYT International Criminal Tribunal for the former Yugoslavia IDI Institut de Droit International IHO International Hydrographic Organisation IJMCL International Journal of Marine and Coastal Law ILA International Law Association ILC International Law Commission ILM International Legal Materials ILR International Law Reports IMO International Maritime Organisation IMO-MSC International Maritime Organisation—Maritime Safety Committee INDEMER Institut du Droit Economique de la Mer ITLOS International Tribunal for the Law of the Sea JMLC Journal of Maritime Law and Commerce JYIL Japanese Yearbook of International Law OAS Organization of American States OMI Organisation Maritime Internationale PCA-CPA Permanent Court of Arbitration PCIJ Permanent Court of International Justice RBDI Revue belge de droit international RdC/RCADI Recueil des cours [Collected Courses] de l’Académie de droit international de La Haye

List Of Abbreviations

RGDIP Revue Général de Droit International Public [UN] RIAA [United Nations] Reports of International Arbitral Awards UNCLOS United Nations Convention on the Law of the Sea UNTS United Nations Treaty Series VCLT Vienna Convention on the Law of Treaties VJTL Vanderbilt Journal of Transnational Law ZEE Zone Économique Exclusive

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Contributors* David H. Anderson, CMG Judge of the International Tribunal for the Law of the Sea (1996–2005). Ad hoc Judge in the Arctic Sunrise (Provisional Measures) case (Netherlands v. Russian Federation) (2013). Advisor to the Foreign and Commonwealth Office on all aspects of international law, the law of treaties and the law of the sea (1960–1996). Member of the British Delegations to the Vienna Conference on the Law of Treaties, the III UN Conference on the Law of the Sea, the Straddling Fish Stocks Conference and the Secretary General’s Consultations about Part XI. UK Agent in the ICJ Fisheries Jurisdiction case (UK v. Iceland) Merits (1972–4). Negotiator of over a dozen maritime boundary treaties. Author of Modern Law of the Sea—Selected Essays (Brill, 2008). Listed as Arbitrator under Annex VII of the UNCLOS. Agustín Blanco-Bazán Lawyer (University of Buenos Aires). Post-degree courses in Philosophy, International Law and Political Sciences at the University of Vienna, Austria. Former Head of the Legal Office of IMO (International Maritime Organization). Currently working as an international lawyer and consultant and lecturer specializing in maritime law and law of the sea; crimes at sea (piracy and maritime terrorism), maritime environmental law (prevention of pollution from vessels); and liability and compensation in the field of maritime law. Resides in London. Vincent P. Cogliati-Bantz Holds a doctorate in international law from the Graduate Institute of International Studies, Geneva. He lectures in the area of international and comparative law at the TC Beirne School of Law, University of Queensland, Australia. With Hugo Caminos, he is the author of the forthcoming The Legal Regime of Straits: Contemporary Challenges and Solutions (Cambridge University Press).

* The views expressed in the essays published in this book are those of the authors and do not represent the positions of the institutions, courts or governments where they have been or are members at present.

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Jean-Pierre Cot Professeur émérite, Université de Paris-I Panthéon-Sorbonne, Juge, Tribunal international du droit de la mer. Lilian Del Castillo Doctor (UBA), Public International Law chair at the University of Buenos Aires School of Law. Member of the Argentine Council for Foreign Relations (CARI), the Academy of Environmental Sciences and the Sea Academy of Argentina. Author of The Rio de la Plata and its Maritime Front Legal Regime (Brill), as well as monographs and articles on natural resources, environment, water law, jurisdictional immunities, international jurisdictions, territorial issues and international law sources. Angela Del Vecchio Full professor of International Law and Director of Master/LLM on Law and Government of the European Union at LUISS G. Carli University of Rome. Member of the Rome Bar. Member of the Board of the Network of Maritime Safety and Security (MARSAFENET). Member of the Board of Editors of the Revue du Droit de l’Union Européenne, Estudios Internacionales, Studi sull’integrazione europea and Rivista del diritto della navigazione. Author of Le Parti nel Processo Internazionale, Giuf­frè, 1975; Zona economica esclusiva e Stati costieri, Le Monnier, 1984; Giurisdizione internazionale e globalizzazione, Giuffré, 2003; International Courts and Tribunals between globalisation and localism, Eleven, 2013; editor of International Law of the Sea: Current Trends and Controversial Issues, Eleven, 2014. Yoram Dinstein Member of the Institute of International Law, Professor Emeritus at Tel Aviv University (Israel), and since 2010 has been the President of the United Nations Association of Israel. In the past, he served as President, Rector and Dean of the Faculty of Law of Tel Aviv University. Professor Dinstein was twice a Stockton Professor of International Law at U.S. Naval War College (2002/2003, 1999/2000). He was also a Humboldt Fellow at the Max Planck Institute for International Law at Heidelberg (Germany), 2000/2001. Gudmumdur Eiriksson Gudmundur Eiriksson is a Professor at the O.P. Jindal Global Law School and Executive Director of its Centre for International Legal Studies. He served in the Office of the Secretary-General of the United Nations for the Law of the Sea from 1974 to 1977. He was an Assistant Legal Advisor and Legal Advisor

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Contributors

in the Ministry for Foreign Affairs of Iceland from 1977 to 1996 and was a member of the Icelandic delegation at the Third United Nations Conference on the Law of the Sea from 1978 to 1982. He was a Judge of the International Tribunal for the Law of the Sea from 1996 to 2002 and President of its Fisheries Dispute Chamber from 1999 to 2002. He was a member of the United Nations International Law Commission from 1987 to 1996. He has served as Ambassador of Iceland in Ottawa, Pretoria and New Delhi. Pablo Ferrara Assistant Professor of Public International Law at Xiamen University’s South China Sea Institute (China). Formerly, he was Postdoctoral Researcher at the Centre of Energy Law at the University of Groningen (Netherlands). In 2003, he graduated at the University of Buenos Aires School of Law (Argentina), and in 2010 obtained his doctorate at the University of California at Berkeley (USA) on cooperation in offshore oil and gas development for sovereignty disputed areas. In 2011, he was a research fellow at the Max Planck Institute for Comparative Public Law and Public International Law (Germany). Lecturer on general international law at the University of Buenos Aires, Universidad Di Tella and Universidad del Salvador in Argentina; also at Berkeley (USA), Max Planck (Germany), and The Netherlands. Miguel García García-Revillo Senior Lecturer on Public International Law and European Union Law at the University of Córdoba (Spain), where he obtained his Ph.D. with a thesis on the International Tribunal for the Law of the Sea. Chair of the Law of the Sea Interest Groups of ASIL (LOSIG) and ESIL (LAWSEA IG), Delegate of Communications of the Association Internationale du Droit de la mer. Lecturer on Law of the Sea conferences in Naples, Mexico DF, Valencia, Buenos Aires, Washington DC, Porto and others. Adviser for public and private entities and Governments in International Law and European Union Law issues. Philippe Gautier Registrar of the International Tribunal for the Law of the Sea since 2001. He joined the Tribunal in 1997 as Deputy Registrar. From 1984 until 1997, he worked for the Ministry of Foreign Affairs of Belgium where he served as Head of the Unit “Law of the Sea, Antarctica, recognition of States” (1991–1995) and Director of the treaty Division (1995–1997). He is a Doctor of Law and holds a masters degree in Philosophy from the Catholic University

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of Louvain (Louvain-la-Neuve) where he has been teaching as a Professor since 1996. His doctoral thesis (1993) is devoted to the definition of treaties and he is the author of numerous publications on international law. Edison González-Lapeyre Ambassador Edison González Lapeyre has a Doctorate in Law and Social Sciences of the University of the Oriental Republic of Uruguay. Formerly, he was a Professor of Private International Law and Public International Law at the Faculty of Law of this University. He was Vice-President of the Uruguayan Delegation at the III UN Conference on the Law of Sea (Caracas 1974) and in 2003 taught the course on “Transport maritime et régime portuaire” at The Hague Academy of International Law (RdC 308,2004). Additionally, he was President of the National Administration of Ports of Uruguay and President of the Interamerican Ports Organisation. He has authored more than a hundred of articles and books in his speciality. Kamal Hossain Vice-Chairman, Executive Council of the ILA. Senior Advocate of the Supreme Court of Bangladesh and Barrister. BCL and doctorate in International Law, University of Oxford. Chairman of the Constitution Drafting Committee of Bangladesh (1972); Minister of Law (1972–73); Minister of Foreign Affairs (1972–75); Visiting Fellow, All Souls College, Oxford (1975); Chairman, (Panel D-2) and Member, UN Compensation Commission, Geneva (1999–2005). Ad hoc Judge, ITLOS, Malaysia vs. Singapore case (2003). Member, Arbitral Tribunal in Annex VII of the UNCLOS, Land Reclamation Malaysia and Singapore case, (2004–2005), and Maritime Delimitation case involving Guyana and Suriname (2005–2007). Chairman and Member of International Arbitral Tribunals (ICSID, ICC and UNCITRAL). María Teresa Infante Caffi Holding a degree in Law from the University of Chile and a post-graduate from the Institut Universitaire de Hautes Etudes Internacionales, Geneva. Researcher at the Hague Academy of International Law. Full professor at the University of Chile and Director of the Institute of International Studies until 1995. Director of the Graduate School. Co-director of the Master’s Programme in International Law, University of Heidelberg & University of Chile. Member of the Institut de Droit International; President of the Chilean Society of International Law for different terms. She was Director of the National

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Directorate of Frontiers and Limits, Chilean Ministry of Foreign Affairs from 1997 to 2014. Co-agent in the lawsuit case filed by Perú against Chile at the International Court of Justice, 2008–2014. Jeannette Irigoin Barrenne Director of Political and Legal Affairs, National Academy for Political and Strategic Studies, Ministry of National Defense; former Director, Institute of International Studies University of Chile; Full Professor, School of Law, University of Chile. Member of the Institut de Droit International. Ph.D. studies in International Law, Complutense University of Madrid; Masters degree in International Studies, University of Chile; Graduate Degree in Juridical & Social Sciences, University of Chile and Attorney-at-law, Chilean Supreme Court. Visiting Professor: Complutense University of Madrid; University of Puerto Rico; Advanced Center of International Studies, University of Buenos Aires; XVIII Course of International Law, OAS, Rio de Janeiro, Brazil; School of Law, Ruprecht-Karls-Universität of Heidelberg. Bing Bing Jia D. Phil. (Oxon.), Professor of International Law, Law School, Tsinghua University, Beijing, China, since 2004. Legal Officer in the Appeals Chamber of the United Nations International Criminal Tribunal for the former Yugoslavia (The Hague) (ICTY), 2002–2004; Legal Officer in Trial Chamber III of the ICTY, 2000–2002; Associate legal officer in the Appeals Chambers of the ICTY and of the International Criminal Tribunal for Rwanda (ICTR), 1998–2000. James L. Kateka Judge of the International Tribunal for the Law of the Sea. Member of the Institut de Droit international. Judge ad hoc of the ICJ in the DRC v Uganda case. Arbitrator in the Mauritius v United Kingdom and Malta v Sao Tome & Principe cases. Former member of the ILC. Partner in the South Law Chambers and Advocate of the High Court of Tanzania. Legal Advisor and Ambassador of Tanzania to Germany, the Russian Federation and Sweden. Delegate of Tanzania to the III UN Conference on the Law of the Sea, the London IMO Conferences on the Anti-Dumping (1972) and Marine Pollution (1973) Conventions, among others. Author of numerous articles. Awarded in 1993 the Papal Honour of the Grand Cross with the Star of the Order of Pius IX.

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Tommy Koh Professor Tommy Koh is currently Ambassador-At-Large at the Ministry of Foreign Affairs of Singapore; Special Adviser of the Institute of Policy Studies and Chairman of the Centre for International Law, National University of Singapore. He is also the Rector of Tembusu College at the University Town of the National University of Singapore. He was Singapore’s Permanent Representative to the United Nations, New York (1968–1971) (concurrently accredited as High Commissioner to Canada) and again from 1974 to 1984 (concurrently accredited as High Commissioner to Canada and Ambassador to Mexico) and Ambassador to the United States of America (1984–1990). He was President of the Third UN Conference on the Law of the Sea (1981–1982). Marcelo Kohen Professor of International Law at the Graduate Institute of International and Development Studies in Geneva, Member of the Institut de Droit International, Director-General of the Latin American Society of International Law. Author of about hundreds of works in the field of International Law, in French, English and Spanish,his book ‘Possession Contestée et Souveraineté territoriale’ (Adverse Possession and Territorial Sovereignty) was awarded the Paul Guggenheim Prize 1997. He has acted as counsel and advocate for a number of States in contentious and advisory proceedings before the International Court of Justice, the International Tribunal for the Law of the Sea and arbitral tribunals. He is also an arbitrator. Ariel R. Mansi Professor of International Law, University of Mar del Plata. Representative of Argentina at the Commission for the Conservation of Antarctic Marine Living Resources and at Antarctic Treaty Consultative Meetings (1997–2012). Annick de Marffy-Mantuano International strategy consultant on maritime affairs and law of the sea. PhD in Law (Docteur en Droit d’Etat, France), Diplôma in International Relations from the « Institut du Droit de la Paix et du Développement » (IDPD, Nice, France); President of the Scientific Board of the Economic Law of the Sea Institute (INDEMER); Member of the Board of the Oceanographic Institute, Monaco; Member of the Global Forum on Oceans, Coasts and Island, University of Delaware (USA); Former Director of the Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, UN (2001–2004);

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Member of the UN Secretariat participating in the III UN Conference on the Law of the Sea (1974–1982); author of “La genèse du droit international de la mer: le Comité des fonds marins”. Thomas Mensah Former Judge of the International Tribunal for the Law of the Sea and Arbitrator in International Law and the Law of the Sea. María Fernanda Millicay Argentine career diplomat since 1997, she holds a degree in Law from the University of Buenos Aires and began her career at the Legal Advisor Office of the Ministry of Foreign Affairs, Argentina, focusing on law of the sea and related issues. Delegate of Argentina to many law of the sea meetings, including at the United Nations, the FAO and the International Seabed Authority. In 2003, she was awarded the 18th Hamilton Shirley Amerasinghe Memorial Fellowship on the Law of the Sea for her work on the legal regime for the biodiversity of the Area (2007). Currently she works on law of the sea issues at the Permanent Mission of Argentina to the United Nations and is Co-Chair of the UN Regular Process for Global Reporting and Assessment of the State of the Marine Environment, including Socio-economic Aspects. Djamchid Momtaz Professeur à l’Université de Téhéran. Membre de l’Institut de droit international. Ancien Président de la Commission du Droit International. Tafsir Malick Ndiaye Judge of the International Tribunal for the Law of the Sea (ITLOS). President of the Chamber for Fisheries Disputes. Member of the IAAF Ethics Commission. Rafael Nieto-Navia Colombian Ambassador to the Scandinavian Countries (2009–2011). Judge of the Appeals Chamber of the International Criminal Tribunals for the former Yugoslavia and Rwanda, The Hague, The Netherlands (1997–2001) and judge of a Trial Chamber (2001–2003). Arbiter and President of the Argentinean-Chilean Arbitration Tribunal for the Laguna del Desierto Case, Rio de Janeiro, Brazil (1991–1995). Judge (1982–1994) and President (1987–1989 and 1993–1994) of the Inter-American Court of Human Rights, San José, Costa Rica. Head of the Public Law Department at the Law Faculty, Universidad Javeriana, Bogotá, (1986 to 1997). Distinguished Professor of

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International Law, Javeriana University (Bogota, Colombia) (1962–1997). Deputy Justice of the Colombian Supreme Court (1980‑1984). Nilufer Oral Member of the Law Faculty at Istanbul Bilgi University Law School. The author served as one of the legal advisors to the Turkish Foreign Ministry for the Gaza Flotilla incident. The views reflected in this chapter belong solely to the author and do not reflect the views of any government. The author gratefully acknowledges the valuable contribution and guidance provided by the late Prof. Jon Van Dyke. Francisco Orrego-Vicuña Professor of International Law at the Heidelberg University Center for Latin America in Santiago, Chile, he has served as Judge and President of the World Bank Administrative Tribunal and currently is a judge at the International Monetary Fund Administrative Tribunal. He has served as ad-hoc Judge at the International Tribunal for the Law of the Sea and the International Court of Justice. He is a member of the Institut de Droit International and former President of this institution and author of major publications on international law, the law of the sea and international dispute settlement and arbitration. Bernard H. Oxman A Richard A. Hausler Professor of Law at the University of Miami School of Law and Director of the Master of Laws Program in Ocean and Coastal Law. Co-editor in chief of the AJIL (2003 to 2013). Member of the Institut de Droit international. Judge ad hoc of the ICJ and the ITLOS, as well as arbitrator and counsel in public and private international cases. Granted A.B. and J.D. degrees from Columbia University, he later served in the International Law Division of the Office of the Judge Advocate General of the Navy, and subsequently as Assistant Legal Adviser for Oceans, Environment, and Scientific Affairs at the U.S. Department of State. United States Representative to the III UN Conference on the Law of the Sea and chair of the English Language Group of the Conference Drafting Committee. Jin-Hyun Paik Judge of the International Tribunal for the Law of the Sea (ITLOS). Ph.D. (International Law) University of Cambridge. Professor of International Law, Graduate School of International Studies, Seoul National University (1997–present). Author of Maritime Issues in the 1990s: Antarctica, the Law of

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the Sea and Marine Environment (co.ed.), Seoul Press, 1992; United Nations Convention on the Law of the Sea and East Asia (co-ed.), Seoul Press, 1996; Asian Approaches to International Law and the Legacy of Colonialism (co-ed.) Routledge, 2012; Sharing and Distributing Ocean Resources (co-ed.), Oreum Publishing House, 2012; Regions, Institutions, and the Law of the Sea, Studies in Ocean Governance (co-ed.), Martinus Nijhoff, 2013. M.C.W. Pinto Attorney of the Supreme Court of Sri Lanka, and of the Inner Temple, Barrister; Consultant on international law to the Government of Sri Lanka; Member of the Institut de Droit International. Formerly, Legal Adviser of the Ministry of External Affairs of Sri Lanka; Representative of Sri Lanka to the U.N. Seabed Committee and to the Third U.N. Conference on the Law of the Sea, 1968–1982; Member of the International Law Commission, 1973–1981, and Chairman of the Commission, 1980. Jean-François Pulvenis de Séligny-Maurel Senior Policy Advisor, Inter-American Tropical Tuna Commission (IATTC). Formerly, Director, Fishery and Aquaculture Economics and Policy Division (previously Fishery Policy and Planning Division), FAO (2002–2011); Ambassador to Guyana and Representative Observer to CARICOM (2000–2002); Director, Land and Maritime Boundaries, Ministry of External Relations (Venezuela) (1988–2000); joined the Ministry in 1974; promoted to Ambassador in 1985. Participated in numerous bilateral, regional and international negotiations on the law of the sea, fisheries and in the field of the environment and sustainable development. Graduate and post-graduate degrees in law, international law and literature (University of Nice, France). Antonio Remiro Brótons Professor of Public International Law of the Universidad Autónoma de Madrid. Member of the Institut de Droit International. Susana Ruiz-Cerutti Ambassador. Legal Adviser, Ministry of Foreign Affairs, Argentina. Former Minister of Foreign Affairs (1989); former Vice-Minister of Foreign Affairs (1987–1989 and 2000). Harry N. Scheiber Director, Law of the Sea Institute, UC Berkeley, Stefan A. Riesenfeld Chair Professor of Law and History, Emeritus, University of California, Berkeley, School of Law.

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Tullio Scovazzi Professor of International Law, University of Milano-Bicocca, Milan, Italy. Janusz Symonides Graduated from the Diplomatic and Consular Department of the Main School of Foreign Service in Warsaw (1959). Ph.D. in Law from Nicolaus Copernicus University in Toruń (1963). Professor Extraordinarius (1973) and Ordinarius of Law (1980). 1965 Diploma of the Hague Academy of International Law. Head of the Chair of International Law (1968–1977); Director of the Division of Human Rights, Democracy and Peace at UNESCO, Paris (1989–2000); Professor at the Institute of International Relations, University of Warsaw (1984–1987, and since 1999). Author of Geographically Disadvantaged States under the 1982 Convention on the Law of the Sea, Dordrech-Boston-London, 1988, among more than five hundred scientific publications, monographs and collections of documents in multiple languages. Tullio Treves Professor of International Law at the University of Milano, Judge of the International Tribunal for the Law of the sea (1996–2011); advocate and arbitrator in international cases; author of numerous books and articles in various languages on public and private international law subjects. Member of the Institut de Droit International and of the Curatorium of the Hague Academy of International Law. Helmut Tuerk Judge of the International Tribunal for the Law of the Sea in Hamburg (Vice-President 2008–2011). Luis Valencia-Rodríguez Lawyer. Member of the Ecuadorean Foreign Service. Minister for Foreign Affairs of Ecuador (twice). Ambassador of Ecuador to Bolivia, Brazil, Peru (twice), Venezuela and Argentina. Permanent Representative to the United Nations. Member of the Committee for the Elimination of Racial Discrimination and Chairman of this Committee (three times). Chairman, Delegation of Ecuador to the III UN Conference on the Law of the Sea. Member, Delegation of Ecuador to the UN Conference on the Law of Treaties. Member of the Ecuadorean Commission for the settlement of the frontier with Peru. Former Professor of International Law at the Central University (Quito) and of Private International Law at the International University (Quito). Author of texts on international law and on human rights.

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Roberto Virzo Researcher of International Law and professor of International Organizations and International Economic Law at the Faculty of Economy of the Università del Sannio di Benevento (since 2008). Graduated with honors in Political Sciences at the LUISS “Guido Carli” University of Rome. Researcher (2002–2006) and Professor of International Organizations at the School of Law of the LUISS “Guido Carli” University of Rome (2008/2009). Author of Il regolamento delle controversie nel diritto del mare: rapporti tra procedimenti, Padova, CEDAM, 2008. Rüdiger Wolfrum Judge of the International Tribunal for the Law of the Sea since 1996, re-elected in 1999 and 2008, Vice-President 1996–1999; President of the Chamber for Marine Environment Disputes 1997–1999; President of the Tribunal 2005–2008. Professor, Faculty of Law, University of Heidelberg (1993–2013); Director, Max Planck Institute for Comparative Public Law and International Law, Heidelberg (1993–2013); Member, Board of the Max Planck Foundation on International Peace and Rule of Law (2012-present). Author and editor of numerous books and articles on various issues of public international law, law of the sea, international environmental law, human rights, United Nations and the Antarctic and editor of the Max Planck Encyclopedia for Public International Law, ten volumes, 2011.

PART 1 Introduction

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Chapter 1

In Honor of Hugo Caminos Bernard H. Oxman There are countless reasons to honor Hugo Caminos. His contributions to international law and international relations are as varied and numerous as they are profound: teacher; scholar; lawyer; diplomat; judge. When we try to analyze and assess the meaning of his accomplishments in each of these capacities, we discover that we have a sum that transcends its parts. And that sum reveals virtues that future generations would do well to learn about and to emulate. Born in Buenos Aires in 1921, by 1946 Hugo Caminos had earned his law degree at the University of Buenos Aires and pursued postgraduate studies in international law at Berkeley, Columbia, and UCLA. He received his doctorate from the University of Buenos Aires in 1964. Hugo Caminos the teacher reveals all of the characteristics of his other careers: in the classroom he is scholarly, lawyer-like, diplomatic, and judicious. He began his teaching career at the University of Buenos in 1956, where he became a full professor in 1963, a position he held until being named professor emeritus in 1988. He never left teaching. Students throughout the world have benefitted for well over a half century from his insights, his example, and his devotion. They continue to do so. Whether attending a full course or a special discourse, whether at the Hague Academy or at Columbia, Cornell, Georgetown, Miami, NYU, Oxford, Rome, São Paolo, Santiago, or other universities, his students have learned far more than the subject matter of his lectures. From his teachings and from his example, they have come to see that understanding must rest on a foundation of curiosity and careful scholarship, that modesty and self-assurance are facets of the same coin, that goals are best advanced by means that respect the aspirations of others, and that duty and decency are enduring characteristics of a just social order. Hugo Caminos began contributing to the corpus of international law even before he began teaching, with a bibliography of Hans Kelsen in 1949 and a translation into Spanish in 1952 of Kelsen’s influential work, Principles of International Law. This was followed by a doctoral thesis in 1964 on

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international maritime transport of mail.1 In 1979 the significance of his contributions was recognized by his election to the august Institut de Droit international. Hugo Caminos’s scholarly contributions have never stopped. They address, in English, French and Spanish, not only the law of the sea but other aspects of public international law as well, including human rights, environmental protection, humanitarian intervention, settlement of disputes, and the InterAmerican system. This scholarly work product would be impressive even for someone who had spent his entire career as a full-time university professor. It is astonishing for someone who spent many years in demanding legal, diplomatic, and judicial posts at a high level. Even as this book goes to press, so does a new book on straits by its honoree,2 a fitting capstone to his much-admired Hague Academy course on the subject.3 Hugo Caminos’s careers as a lawyer and a diplomat overlap to a considerable extent. In the early 1970’s, he served in the Argentine Ministry of Foreign Affairs as Director of the Department of International Organizations and then as Legal Adviser. During that period, preparations for the Third United Nations Conference on the Law of the Sea were already underway. Both Argentina, and Hugo Caminos personally, were destined to play an active role in furthering what was to become one of the most important efforts to advance the rule of law in international affairs in the post-colonial era. The success of those efforts was due in no small measure to the decision of the Secretary-General of the United Nations to appoint a Special Representative for the Third United Nations Conference on the Law of the Sea, and to convince Hugo Caminos to take on the responsibilities of Deputy Director of that office in 1974. Caminos assumed his duties at a time of critical need for coherence and direction in a law-making endeavor that was as massive in its geographic and substantive objects as in the number and diversity of participating government personnel and affected stakeholders. No one could have written with greater authority and perspective on what it took and what it meant, after over a decade of negotiation, to achieve agreement on 1  Hugo Caminos, La Unión Postal de las Américas y España y el Transporte Marítimo Internacional de la Correspondencia (doctoral thesis), School of Law and Social Sciences, University of Buenos Aires, 1964. 2   Hugo Caminos & Vincent Cogliati Bantz, The Legal Regime of Straits: Contemporary Challenges and Solutions (in press). 3  Hugo Caminos, “The Legal Régime of Straits in the 1982 United Nations Convention on the Law of the Sea”, in Collected Courses, vol. 205 (Hague: Hague Academy of International Law, 1987), 9–246.

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a comprehensive Convention that addresses basic security, economic, and environmental interests in the use and protection of over two-thirds of the planet—a single indivisible Convention to which reservations are not permitted and to which the overwhelming majority of states in all regions are now party.4 In 1981, Argentina named Hugo Caminos its ambassador to its largest neighbor, Brazil. Even while he held this high diplomatic post, the international lawyer, scholar, and teacher are evident in his lectures and writings in Brazil and elsewhere. One would also not be surprised to discover that he discreetly helped his Brazilian colleagues lay the foundation for Brazil’s decision to ratify the UN Convention on the Law of the Sea later in the decade, the first coastal state on the South American continent to do so. Brazil’s decision to accept the new regime of the exclusive economic zone in the area in which it had previously claimed a territorial sea doubtless facilitated the decision of other states in the region and elsewhere to become party to the Convention.5 In 1984 Hugo Caminos was named Under-Secretary for Legal Affairs and Legal Counsel of the Organization of American States, once again combining law and diplomacy in the same position. The range of matters with which he dealt in the decade in which he held this position was very broad. As one would expect from Hugo Caminos, the experience informs a very substantial scholarly contribution on the Inter-American system.6 It is a source of abiding satisfaction to this writer that the University of Miami School of Law was among the institutions that gratefully afforded Hugo Caminos the opportunity to concentrate his attention on teaching and scholarship in the period following his departure from the OAS. Yet again duty called. Following the entry into force of the UN Convention on the Law of the Sea on November 16, 1994, the parties proceeded in 1996 to elect the first members of the new International Tribunal for the Law of the Sea. Not surprisingly, Hugo Caminos was among them. He served two terms for a total of 15 years. During this formative period, when prompt release and 4  See Hugo Caminos & Michael L. Molitor, “Progressive Development of International Law and the Package Deal”, American Journal of International Law, vol. 79, (1985): 871–90. 5  See Hugo Caminos, “Some Considerations on Harmonization of Pre-existing 200 Mile Territorial Sea Claims in Latin America with Part V of the United Nations Convention on the Law of the Sea”, in Liber amicorum Günther Jaenicke-Zum 85 Geburtstag, ed. Volkmar Götz, Peter Selmer & Rüdiger Wolfrum (Heidelberg: Springer, 1998), 465–482. 6  See, for example, Hugo Caminos, “The Role of the Organization of American States in the Promotion and Protection of Democratic Governance”, in Collected Courses, vol. 273 (The Hague: Hague Academy of International Law, 1998), 103–238.

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provisional measures requests dominated its docket, the Tribunal established its reputation for timely, efficient, and effective disposition of cases and expert interpretation and application of the Convention and related rules of international law. There can be no doubt that Hugo Caminos played a significant part in shaping the new Tribunal. He did so quietly and discreetly, as would be his wont. He was usually in the majority. Only once did he formally dissent from a judgment, objecting to a jurisdictional dismissal on grounds not advanced by the respondent.7 He eschewed lengthy separate opinions, typically contenting himself where need be with a concise joint declaration or opinion in which a significant number of judges joined together. Hugo Caminos the mentor was honored even by the decision on who would succeed him on the Tribunal. The States Parties elected another distinguished Argentinian, one in whose career Hugo Caminos had long taken an active interest. That Judge Elsa Kelly is also the first woman elected to the Tribunal is doubtless a source of additional satisfaction to a man who was ahead of his time in promoting the careers of women in international law and diplomacy. And so continues the remarkable journey that is the career of Hugo Caminos. According to Plutarch, Socrates said he was not an Athenian or a Greek but a citizen of the world. Hugo Caminos transcends the dichotomy. He serves and honors Argentina. He serves and honors the Americas. He serves and honors the world. It is right and fitting that through this volume his friends and colleagues from Argentina, from the Americas, and from the world should honor Hugo Caminos.

7  Joint Dissenting Opinion of Judges Caminos, Marotta Rangel, Yankov, Yamamoto, Akl, Vukas, Marsit, Eiriksson and Jesus, in The “Grand Prince” Case (Belize v. France), ITLOS Case No. 8, Judgment (2001).

PART 2 Historical Perspectives

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Chapter 2

The Contribution of Andrés Bello to the Law of the Sea in the Chilean Civil Code Jeannette Irigoin Barrenne1 Introduction To study the history and development of international law, especially in what refers to the American continent and the special problems affecting our countries with their peculiar cha­racteristics, you must obligatory address to the brilliant work of Andrés Bello. His contribution was not only in the development of the general theory of contemporary international law, but also in the design of Latin American foreign policy and the empowerment of its political institutions. In the book Principles of International Law, he always proclaimed our rights as sovereign nations facing the interests of the domain of European countries. He was also able to guide the study of these subjects in a framework where the new world countries were recently incorporated into the group of independent Nations and where the rules of international law only considered the needs and convenience of European countries considering subjects and problems that were often distant of our American reality. It is said that Andrés Bello is, perhaps, the most complete man of letters produced by our America and a kind of comparison has been established between the work of Bello and the work of Thomas Jefferson. In this concern, there is no doubt that Bello exceeds the comparison, because Jefferson was fundamentally a brilliant politician, but Bello “rises above politics—without disregarding it—by diving it into the large universe of his scientific curiosity and rooting it with the other concerns of human knowledge”.2

1  Director of International Law Affairs, National Academy of Political and Strategic Studies, (ANEPE) Ministry of Defense, Chile. Professor of the University of Chile School of Law. Member of the International Humanitarian Fact Finding Commission. Member of l’Institut de Droit International. 2  Mario Barros van Buren, “Andrés Bello y la Cancillería chilena”, Revista ATENEA, Nº 443–444 (1981): 229.

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Andrés Bello was sent to London in 1810 by the conservative Board of Venezuela in an integrated mission with Simón Bolívar and attorney Luis López Méndez and remained in that city until his trip back to Chile in 1829. During his permanence in the english capital, he read avidly the works of Grotius, Vitoria, Suarez, Puffendorf and other important authors, following closely the events of European policy, discusses with wisdom and serenity the international period which elapses between the Napoleonic wars and the French restoration and begins his diplomatic life on June 1th of 1822, when the Chilean Minister Irisarri designated him as Secretary of the Legation in London. In 1823, with the fall of Bernardo O’Higgins, a parenthesis is opened in his diplomatic career which ended in November of 1824, when the Government of Colombia welcomes him as Secretary of their Legation. At this time he starts starts writing as a practical internationalist, of the Chilean foreign policy and at the same time he demonstrates to be a great analyst that in many ways caused an evolution of the doctrine of international law through theoretical concepts that prevail until now. In this sense it can be argued with no doubt that “Bello was the first scientist in modern international law”.3 Even if he was primarily inspired by the work of Vattel, he didn’t follow a single school of knowledge and maintained an eclectic position by assimilating the views of various authors, process that made him achieve an important balance. He created his own school of thought, with a clear line of independence. His theoretical work, the “Principios de Derecho Internacional”, was the first complete and systematic treaty on this subject in Latin America and it’s was studied in Chile since 1834 at the Instituto Nacional and later at the University of Chile. This work was published for the first time by the printing house ‘La Opinión’ in Santiago with the title Principio de Derecho de Jentes in 1832, the second edition was printed in Valparaíso in 1844 under the title of Principios de Derecho Internacional and reprinted in Paris by the printing house Gramier Hnos. It was published later in other Latin American countries and translated into English, French and German. It is in this important work where we can find the present consecrated principles of law of the sea, giving special importance to the contemporary delimitation of the maritime spaces that has been developed through concepts provided by Andrés Bello more than one hundred and thirty years ago. It is to these legal institutions that we want to dedicate the present article.

3  Francisco Orrego Vicuña, “La labor internacional de Andrés Bello”, Revista de Derecho Público Nº 4 (septiembre 1965): 67–83.

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The Territorial Sea and the Contiguous Zone

A fundamental aspect of the codification work of Andrés Bello is reflected in the Chilean Civil Code of 1855, legal instrument to which he dedicated 24 years of his very productive intellectual activity. The interesting thing is that this work was not limited to encode only the civil law, but it also embodied in addition some precepts of a clear international content. For example, the article 593 of the Civil Code of the Republic of Chile establishes that: The adjacent sea, up to the distance of one marine leagues, measured from the lowest brand line, is territorial sea and national domain, but the right to police, for objects relating to the security of the country and the enforcement of financial laws extends to the distance of four marine leagues measured in the same way. Let us remember that during the 16th and 17th centuries uncertainty reigned about the limits of the territorial sea, since for some persons it would extend up to the limit of visual range and for others just up to the length of a canyon shot. Only in the 18th century this last concept was imposed, especially because of the category formulation made by the jurist Dutch Van Binkershoek in his work “Dominio Maris” in 1703 and in the Questiones Juris Public” in 1737, work that gave significance and new status to the notion that the coastal State is sovereign of the sea that bathes its coasts to the extent of the canyon, even if there where no canyons or could not be placed one. In 1872, Ferdinand Galiano, based on the ballistics time data, identified the rule of the canyon shot within the three nautical miles, that was the reach that the artillery had at that time. The Article 1 of the Convention on the Territorial Sea and Contiguous Zone made at the Conference on the Law of the Sea at Geneva in 1958, lays down that: “The sovereignty of a State extends, outside its territory and internal waters, to an area of adjacent sea to its coasts designated as the territorial sea”. This provision strengthens the idea that the rights of the coastal State over the territorial sea is no different in its nature from the sovereignty that the State practices on the other parts of its territory. Territorial sea is a part of the territory of the State and the decisive reason for this recognition of State sovereignty on the sea adjacent to its coasts is that it is essential for its safety and for the protection of its legitimate interests. Despite several attempts to determine the breadth of the territorial sea which had not been achieved in a codification conference in 1930 under the auspices of the League of Nations, at the Geneva Sea of the Law Conference

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of 1958 no proposals were approved on this topic, even though it can be concluded that no State had objections to the three-mile minimum determined in the Chilean Civil Code and laws of other countries that followed the Bello’s model. There was an attempt to reach an agreement on the problem of the breadth of the territorial sea for the second time at the Geneva Law of the Sea Conference of 1960 sponsored by the United Nations. Even when a formula presented by the United States and Canada proposed to extend it to six nautical miles and granted States the right to establish a zone of exclusive fisheries on the high seas adjacent to its territorial sea up to a maximum twelve miles, it failed to be approved by the required number of two-thirds of the participating States for only one vote. The proposal only was codified in law on the United Nations Third Conference on the Law of the Sea in which was signed the United Nations Convention on the Law of the Sea of 1982 in Montego BayJamaica. This instrument provides that: Article 3 “breadth of the Territorial Sea: Every State is entitled to establish the breadth of its territorial sea up to a limit not exceeding twelve nautical miles from baselines determined in accordance with this Convention”. In relation to the contiguous zone, the article 593 of the Chilean Civil Code distinguishes between an area of territorial sea of one league (that is, three miles measured from the lowest tide line) and a contiguous zone of four marine leagues (12 nautical miles), that in fact has a nine-mile extension because the first three are an integral part of the Chilean territorial sea. Even though this new maritime space was not given at the time a special name: due to its essential characteristics there is no doubt that this sea area responded to a new space concept, different to the territorial sea and the high seas, that until then constituted the Summa Divisio of the sea in accordance with the international maritime law prevalent at the time.4 The Convention on Territorial Sea and Contiguous Zone in its article 24, No. I, consecrates the statute by saying that

4  Jaime Harris Fernández, “Andrés Bello: su aportación al desarrollo del Derecho del Mar en América Latina”, Revista de Derecho (Valparaíso: Ediciones Universitarias de Valparaíso, 1982), 518.

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in a zone of high seas adjacent to the territorial sea, the coastal State could adopt the necessary control measures: a) to prevent infringements of their customs, tax, im­migration and sanitary police control laws that could be committed in its territory or territorial sea; b) to suppress violations of those laws committed within its territory or territorial sea. In this way, the contiguous zone is part of the high seas and in this zone the coastal State does not possess sovereign fullness competition, but a few rights listed individually. Article 24 does not include military security or fishing rights. According to the 1960 Convention, States can set the contiguous zone up to twelve-miles extension, limit that was consecrated by Andrés Bello in the Chilean Civil Code of 1855. In the United Nations Law of the Sea Convention of 1982, the article 33 establishes that the contiguous zone can’t be extended beyond 24 nautical miles counted from the baselines from which the breadth of the territorial sea is measured.

The Exclusive Economic Zone

The geographical characteristics of Chile have determined that our country may have an always increasing interest in the development of the Law of the sea and in this framework, Andrés Bello was the forerunner of the need to protect our marine resources hwn he stated the following: But, under another aspect, the sea is similar to the Earth. There are many marine productions that are limited to certain places: because, as well as the lands do not give all the same fruits, not all seas will supply the same products. Corals, pearls, amber, whales are not placed but in limited portions of the ocean, which are impoverishing every day and finally will run out . . .: and no matter how generous can be the fecundity of nature in other species, no one may doubt that the concurrence of many peoples would make fishing more difficult and less fruitful and would end extinguishing them, or at least putting them away from one type of seas to others . . . Not being endless, it seems that it would be lawful for the people to appropriate the lands where they currently stay and that are not possessed by another.5 5  Andrés Bello, Principios de Derecho Internacional, en Obras Completas (Santiago: Universidad de Chile, 1836), See, Francisco Orrego Vicuña, Chile y el Derecho del Mar (Santiago: Editorial Andrés Bello, 1972), 399.

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Therefore, with this idea Bello tried to consacrate in the Chilean Civil Code not only the concepts of Territorial Sea and Contiguous Zone, but also, in book number II, aimed at “the goods, their domain, possession, use and enjoyment”, Article 585 establishes that high sea is a common space to all States, whose use and enjoyment are regulated by the internal domestic laws among the people of a nation “and by international law, among different nations”. In the first section we analyzed article 593 and now we point out the value of the following article: Article 594 defines the concept of beach; Article 597 stipulates the domain of the State on the new Islands formed in the territorial sea or in rivers and navigable lakes; Article 598 establishes that the sea and beaches are national assets for public use, whose use and enjoyment should be regulated by the domestic legislation; Article 604 refers to the norms to access to ports of national and foreign ships; and Article 611, on fishery, specifically argues that in the territorial sea “only can fish Chileans and foreigners domiciled”. This last article is one of the few of our legislation that distinguishes between Chileans and foreigners making exceptions to the general rule of article 14 of the Chilean Civil Code which provides that “The law is obligatory for all inhabitants of the Republic, including foreigners”.6 With this brief mention of the main rules of the Chilean Civil Code and above all with the initial citation of this section, it can be appreciated that Andrés Bello may be considered a visionary of this new institution of the Law of the Sea, which is the Exclusive Economic Zone, starting with the process that breaks the classical dualism between territorial sea and high sea. For developing countries, the economic interest to take an advantage of living resources in adjacent waters to their coasts of the sea meant a constant struggle with countries that have large fishing fleets. Thereby the importance of unilateral extension acts of sovereignty over the resources began with the initiative of Chile through President Gabriel González Videla statement of 23 June 1947 after the Truman Proclamation on the Continental Shelf of 1945. In this statement, President González Videla proclaims the protection and control over the continental socket and the adjacent sea to the distance of 200 nautical miles, what meant the recognition of the right of coastal States to protect, conserve, regulate and monitor the exploitation of all the known natural resources or those to be discovered in the future.7 6  Id. 7  See, Francisco Orrego Vicuña & Jeannette Irigoin Barrenne, ed., La aplicación de la Zona Económica Exclusiva y el régimen de pesca (Santiago: Instituto de Estudios Internacionales, Universidad de Chile, 1982), 149. See, Edmundo Vargas Carreño, América Latina y los problemas contemporáneos del Derecho del Mar (Santiago: Editorial Andrés Bello, 1973), 159.

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This new doctrine took shape in the “Santiago Declaration” that was signed by Chile, Peru and Ecuador in the first Conference on Conservation and Ex­ploitation of the Marine Resources in South Pacific in 1952 (instrument that was signed by Colombia in 1980) an that created the Permanent Commission for the South Pacific. Chilean jurist Edmundo Vargas Carreño presented to the OAS InterAmerican Juridical Committee a thesis on ‘patrimonial sea’ that was no doubt based on the doctrine of Andrés Bello, and that was accepted in the Confer­ ence of the fifteen countries of the Caribbean Sea in Santo Domingo in June 1972 and by the opinion of the Inter-American Juridical Committee in 1973. In this proposal the patrimonial sea was given a condition of an in-between area with precise competency of the coastal State in it and capacity to make compatible the legitimate rights of the international community in the field of communications and the economic aspirations of coastal States. It was was welcomed with the only dissenting opinion of the Mexican judge Luis Padilla Nervo in the case concerning the competence of the International Court of Justice in the field of fisheries between the German Federal Republic and Iceland (I.C.J. Reports, 1972, p. 44).8 In parallel to the establishment of this 200-mile maritime space in Latin America, the African-Asian Advisory Committee, that had been represented by Senegal as an observer in the Latin Ameri­can meeting on aspects of the Law of the Sea held in Lima in August 1970, passed a resolution in the same direction. A few months after the coordination measures adopted by the Montevideo Declaration on the Law of the Sea of May 8, 1970, there had been unilateral proclamations of different extension before the extended jurisdiction over maritime zones. In the frame do­cument of the 12º session of the African-Asian Consultative Committee held in Colombo-Sri Lanka in January 1971, appears the notion of zone of exclusive economic jurisdiction but doesn’t determine clearly the maximum width of the zone. In June 1972, a document presented by Kenya to a Regional Seminar on the Law of the Sea for African States held in Yaoundé—Cameroon defined more clearly the concept and the main recommendations were very similar to the Latin-American declarations of Lima and Montevideo.9 8  See Edmundo Vargas Carreño, Latin America and the contemporary problems of the law of the sea, (Santiago: Editorial Andrés Bello, 1973), 159. 9  See, Julio César Lupinacci, “The legal nature of the exclusive economic zone in the light of the Conference on the law of the sea”, in The exclusive economic zone: a Latin American perspective, ed. Francisco Orrego Vicuña (Santiago: Patmos/University of Chile, 1982), 191.

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Consequently, the creation of the exclusive economic zone consacrated in the United Nations Law of the Sea Convention of 1982, has its remote antecedent in the Chilean Declaration of 1947, it is strengthened as a multilateral instrument at the Santiago Declaration of 1952 subscribed by Chile, Ecuador and Peru, it is developed through unilateral declarations of various Latin American States and in the resolutions of Montevideo and Lima in 1972, gets the support of the group of African countries during 1972 and 1973 and the endorsement of four major Western countries—Australia, Canada, New Zealand and Norway—and finally it is consolidated by the consensus achieved during the negotiation of the III UN Conference on the Law of the Sea (UNCLOS), between the years 1973 and 1982. Therefore, it is a conventional customary norm of contemporary international law because it is unanimously accepted as an institution by 160 countries. This wide acceptance was proven by the fact that in the sessions to approve the Convention there was no discussion about the existence of the exclusive economic zone but only about the problems of its legal nature and the legal authority of the coastal State. The concept of the exclusive economic zone, which is essentially oriented to the administration and optimal use of the resources in the 200 miles sea area, can find its essential antecedent in the visionary conception of Andrés Bello who in 1832 stated that given the fact that some ocean resources were not endless, “it would be legal for the people of a determined place to appropriate the places where they can find the resources and that are not owned by other”.

Final Considerations

Takin into account the background we have summarily reviewed, it can be concluded with all justice that Andrés Bello was one of the most important precursors of the concept of contiguous zone: First, for having thought of it more than one century in advance of its international recognition in the I UN Conference on the Law of the Sea in 1958, and second, for having been its principal diffuser in Latin America through the enormous influence that exercised the Chilean Civil Code in the other civil codes. The merit of Andrés Bello does not wear out exclusively in this area of his work. He was also the first American internationalist to shape a kind of thinking, a concept that served as sustenance for the further development in Latin America of the law of the sea and that relates to the legitimate right that assists coastal States to preserve the existing maritime resources off its coast. Even though he did not materialize this idea in an article of the Chilean Civil Code,

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it remains valid his visionary view about what should be a just order in the regulation of maritime areas and the exploitation of their resources. The mayor value of Bello’s thought was its ability to measure a particular dimension of State sovereignty, which he applied to the maritime spaces. He was one of the first promoters of the concept of “projection of specialized competences”, basic concept on Latin American claims and which today has general acceptance to explain the basis of the new law of the sea and the legal nature of the “exclusive economic zone” enshrined in the United Nations Convention on the Law of the Sea of 1982.

Chapter 3

Hugo Grotius and the Law of the Sea M.C.W. Pinto From the pages of his work, the picture emerges of a man absorbed in his ideals, of a devout and profound seeker after truth and right, and of a passionate and unswerving advocate of himaneness and conciliation— a picture borne out by his life. Arthur Nussbaum, A Concise History of the Law of Nations

Hugo Grotius, Huigh de Groot to his countrymen, was born into a family of considerable wealth and influence on 10 April 1583, at Delft in The Netherlands. Prodigiously talented, he composed poetry in Latin and Greek from the age of seven and was admitted to the practice of law when he was 16. At 24 Grotius was appointed Advocate-General of the provinces of Holland, Zeeland and Friesland (a position said to have been similar to that of Attorney-General in Britain or the United States) and in 1613, when he was 30, he was appointed Pensionary (principal representative and negotiator)of Rotterdam. At a time of acute tension between, on the one hand, Prince Maurits and the Calvinist majority of the United Provinces of The Netherlands, who believed in the religious doctrine of the predestination of souls and on the other, the citizens of the Province of Holland, who held more liberal views, Grotius offered vigorous support to the ­­latter, bringing the country to the brink of civil war, and incurring thereby, the wrath of the Prince. Grotius was tried and sent to prison, from where he made a dramatic escape, going into exile in France. Grotius’ reputation as philosopher and scholar had by then spread throughout Western Europe, and when invited by the Swedish King Gustav IV to be his ambassador in Paris,he accepted the position. But as scholar and idealist, it seemed that life and work as a diplomat did not engage him. After his recall by Sweden, Grotius decided to return to Holland, but the ship on which he sailed was wrecked on the Pomeranian coast. Grotius survived, but while on the way to Lübeck in an open cart, exhausted and alone, he died on 29 August 1645. The life that had begun with so much promise, ended in tragedy. Grotius grew to manhood during the last of the European religious wars, the Thirty Years War (1618–1648). As a humanist and idealist the carnage and destruction wrought by the conflict would certainly have inspired him to

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write the two important works1 for which he is justly famous: De Jure Praedae (On the Law of Prize, 1604–5, which included, as Chapter XII, his essay Mare Liberum)2 and De Jure Belli ac Pacis (On the Law of War and Peace, 1625).3 The second of these, considered his masterpiece, comprises three books. Book I is an inquiry into the lawfulness of war, and the nature of sovereign power; Book II deals with acquisition and jurisdiction over property, the conclusion and interpretation of treaties, the rights of embassies, the obligation to make reparation for damage caused by injury, what constitutes an unjust war, and precautions against rashly engaging in war; Book III is a detailed treatment of the conduct of a lawful war, and includes obligations toward noncombatants and neutrals, the conclusion of treaties of peace, the institution of arbitration, and the detention and redemption of hostages and pledges.4 The work concludes with a fervent admonition that throughout any war, the objective of peace should be kept in mind, and to that end, the preservation of good faith: For good faith, in the language of Cicero, is not only the principal hold by which all governments are bound together, but is the key-stone by which the larger society of nations is united. Destroy this, says Aristotle, and you destroy the intercourse of mankind.5 On his masterwork De Jure Belli ac Pacis rests Grotius’ right to be recognized as the “Father of the Modern Law of Nations”. Drawing on Roman Law sources, 1  For a list of the principal works of Grotius, see W.S.M. Knight, The life and work of Grotius (London, 1925) p. 291; for a more extensive list, H.C. Rogge, BIbliotheca Grotiana, 1883). 2  For references to the publication and translation of this work, which includes Mare Liberum as Chapter XII, see The Freedom Of The Seas, A Dissertation By Hugo Grotius, translated by Ralph van Deman Magoffin, pp. vi–ix (Oxford University Press, New York, 1916). The English translation of Mare Liberum often referred to in this essay is that by Magoffin, and is throughout abbreviated to “ML”. 3  The English translation entitled The Rights Of War And Peace to which reference is made in this essay is by A.C. Campbell and published in the series Universal Classics Library by M. Walter Dunne, New York and London, 1901, and is abbreviated to “DJB (Campbell)”; and to Prolegomena translated by Francis W. Kelsey, New York (Reprint) 1964, abbreviated to “PRO (Kelsey)”. 4  For recommended analyses and discussions of Grotius’ works see Arthur Nussbaum, A concise history of the law of nations (New York: The MacMillan Company, 1954), Chapter IV, n. 134. 5  DJB (Campbell): 417.

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familiar with the theological teachings of St. Augustine and St. Thomas Aquinas, as well as work of the Spanish scholars Vitoria, Suarez and Ayala and the Italian Gentilis, Grotius’ conception of the Law of Nations was founded neither on Catholic theology, nor notions concerning relations among states of the Empire of which Holland was a part.

Elements of Grotius’ Thought

For Grotius, the law binding on States is derived from two sources: the Law of Nature and the Law of Nations, which are seen as having the possibility constantly to interact with one another. The Law of Nature has its roots in the social nature of man: . . . among the traits characteristic of man is an impelling desire for society, that is for the social life . . . this social trend the Stoics called ‘sociableness’ . . . This maintenance of the social order . . . which is consonant with human intelligence, is the source of law properly so-called. To this sphere of law belong the abstaining from that which is another’s, the restoration to another of anything of his which we may have, together with any gain which we may have received from it; the obligation to fulfill promises, the making good of loss incurred through our fault, and the inflicting of penalties upon men according to their needs.6 According to Grotius, it is the free will of God that has implanted this characteristic ‘sociableness’ in man. But having made this statement firmly acknowledging the Creator’s central rôle and lending his work a tone, which must have been re-assuring in its time, of pious orthodoxy, the focus shifts at once to Man: for this ‘free will of God’ is something “to which beyond all cavil our reason tells us we must render obedience”.7 (emphasis added). Again Grotius says: Natural right is the dictate of right reason, showing the moral turpitude, or moral necessity, of any act from its agreement or disagreement with a rational nature, and consequently that such an act is either forbidden or commanded by God, the author of nature.8

6  PRO (Kelsey), paragraphs 6–8. 7  PRO (Kelsey) paragraph 12. 8  DJB (Campbell), Book I, Ch. I.x.

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The Law of Nature, while related to God, is provided with a secular foundation in human reason. It is a law without sanctions, effective because its essential rationality makes obedience to it expedient, and because it is re-inforced by actions rooted in reciprocity and solidarity.9 As to the second source, Grotius says: . . . by mutual consent it has become possible that certain laws should originate as between all States, or a great many States; and it is apparent that the law thus originating had in view the advantage, not of particular States, but of the great society of States. And this is what is called the law of nations, whenever we distinguish that term from the law of nature.10 While the Law of Nature, being based on reason, is universal and unchanging, the Law of Nations, or ‘positive law’, being based on the consent of States, may vary from age to age from place to place. The Law of Nature, deriving from the ‘sociableness’ of man, is the means through which the highest human values of justice, fairness, morality and goodness enter the law binding on States, and temper the merely expedient to which the Law of Nations could, and in the time of Grotius often did, tend. That Grotius strove to curb such a tendency by emphasizing the moderating influence of the Law of Nature is seen in his firm rejection of popular aphorisms with pretensions to ‘realism’, such as that in the case of a king or imperial city “nothing is unjust which is expedient”; or that “the administration of a State cannot be carried on without injustice”; or, again, that “deception, harshness and injustice are the regular business of battles”.11 Evidence of both the Law of Nature and of the Law of Nations are to be found in custom or the recurring affirmation of principle. While no clear hierarchy is established between them, it seems that the Law of Nations is seen as complementary to the Law of Nature, for Grotius says: “For whatever cannot be deduced from certain principles by a sure process of reasoning, and yet is closely observed everywhere, must have its origin in the free will of man.”12

9  PRO (Kelsey), paragraphs 21–3. 10  PRO (Kelsey), paragraph 17. 11  PRO (Kelsey), paragraph 3. 12  PRO (Kelsey), paragraph 40.  H. Lauterpacht, “The Grotian tradition in international law”, 26 British Yearbook of International Law (1946), at p. 28 cites a passage from the judgement of Mr. Justice Story in La Jeune Eugénie affirming the role of the Law of Nature:

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The Law of Nature, with its roots in the social character of man, and calling continually for the application of morality and reason lies at the heart of the Grotian legacy. Its essentials are set forth in the passage cited above.13 Grotius’ elaboration of the concept, however, contains derived principles of far-reaching significance: (1) the sovereign equality of States and the illegality of the subjugation and exploitation of one State by another, and; (2) the economic and military inter-dependence of States. Asserting first the unity of mankind and the subjection of all alike to law, he goes on to denounce the illegality of the use of force by one State to subjugate another and despoil it of its property, thus placing all States, regardless of religious belief and level of civilization, on an equal footing. He says: [God] had not separated human beings, as He had the rest of living things, into different species and various division, but had willed them to be of one race and to be known by one name . . . He had drawn up certain laws . . . these laws were binding on great and small alike . . .14 Amplifying one of his basic natural law concepts he says: Cicero has said, that it is contrary to natural justice, for one man to improve his own advantage at the expense of another, and in another place, that nature does not allow us to increase our resources, riches and power, from the spoils of others. There is so much of equity in this saying, that many legal writers have made it the basis of their definitions, to

“It may be unequivocally affirmed that every doctrine, that may be fairly deduced by correct reasoning from the rights and duties of nations, and the nature of moral obligations, may theoretically be said to exist in the law of nations; and unless it be relaxed or waived by the consent of nations which may be evidenced by their general practice and customs, it may be enforced by a court of justice whenever it arises in judgement.” (2 Mason 409, 448). 13  Lauterpacht, op. cit., n. 12, p. 9, concludes: “On the whole, we are probably right in assuming that the most frequent use of the notion of the law of nature by Grotius is what we should describe as general principles of law arrived at by way of a generalization and synthesis of the principal systems of jurisprudence.” 14  ML, Preface (p. 1).

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supply the deficiency of the strict letter of the law, always appealing to equity as the most sure and clear rule of action.15 He rejects the claims of the Portuguese to sovereignty over India, Ceylon and other Asian countries by discovery or any other means. They were not, he points out, res nullius, but had their own kings, their own governments, their own laws, and their own legal systems. They were “not the chattels of the Portuguese, but are free men and sui juris”.16 He quotes Thomas Aquinas in support of the view that religious belief does not do away with either natural or human law from which sovereignty is derived. Surely it is heresy to believe that infidels are not masters of their own property; consequently to take from them their possessions on account of their religious belief is no less theft and robbery than it would be in the case of Christians.17 In a vigorous defence of the right of non-Christian States to live in peace and free from interference by foreign powers, he recalls: Plutarch said long ago that it was greed that furnished the pretext for conquering barbarous countries, and it is not unsuspected that greedy longing for the property of another often hid itself behind a pretext of civilizing barbarians. And now that well-known pretext of forcing nations into a higher state of civilization against their will . . . is considered by all theologians, especially those of Spain, to be unjust and unholy.18 Although Grotius had been commissioned by the Netherlands East India Company to defend its right to explore and trade anywhere in the world, it is not difficult to imagine that his liberal personal views as well as his patriotic fervor might have fuelled his enthusiasm for the task of demolishing the arrogant and extravagant claims of Portugal and Spain that were based entirely on the presumed authority of the Catholic Church.19 15  DJB (Campbell), Book II, Ch. X.ii. 16  ML, Ch. IV (pp. 11, 21). 17  ML, Ch. II (p. 13). 18  ML, Ch. II (p. 14). 19  By 1456, the papal decrees (bulls) of Popes Nicholas and Calixtus had granted to Portugal exclusively the lands of non-Christians seized by it, and also legal authority over other Catholics in all the lands and seas within the territory so granted. Accordingly, no

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Finally, and most significantly, he asserts, as the very foundation of his thesis in Mare Liberum, that: “Every nation is free to travel to every other nation, and to trade with it.”(ML, Ch. I, p. 7). It could be suggested then, that the following principles may be derived from these passages by necessary implication: (1) Human beings constitute a unity, and each has legal rights and obligations equal to the other. (2) One human being cannot (in the absence of agreement) as from superior right, increase his resources by taking from another. It is the function of ownership to protect private property. (3) Sovereignty is derived from human law. Its function is to protect a State’s territory in the way that ownership protects private property, and it does so to an equal extent with respect to each State. (4) Every State has equality with all others in the right of navigation for the purpose of trade. (5) Every State has equality with all others in matters pertaining to trade. Accordingly, the foregoing passages (which are cited as examples from among others of similar import in Grotius’ work) compel us to conclude that they are based on the notion of the sovereign equality of States; that that notion was among the fundamental elements of Grotius’ thought.

other Catholics (which, as has been pointed out, at that time included all Europeans) were permitted to sail the ocean near the newly-discovered African lands for trade or exploration, on pain of excommunication. In 1479, the Treaty of Alcàçovas between Portugal and Spain allocated to Portugal, with papal sanction, “all lands discovered and to be discovered . . . which might be found and conquered from the Canary Islands beyond towards Guinea”, and acknowledged Spanish sovereignty over the Canary Islands, at the time the subject of dispute between the two countries. Finally, three papal bulls of Rodrigo Borgia, as Pope Alexander VI in 1493, purported to divide the world between Spain and Portugal along a specified line of demarcation stretching from Pole to Pole in the middle of the Atlantic Ocean. All lands discovered and to be discovered west of the line would belong to Spain, while all land east of the line would belong to Portugal. No ships of other nations would have a legal right to sail in those areas without specific prior consent from either Spain or Portugal, a breach of the prohibition being punishable by excommunication. For a detailed and lively account of the period, see Stephen R. Bown, “1494—How a Family Feud in Medieval Spain Divided the World in Half”, St. Martin’s Press, New York (2011), especially Chapter 6.

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Dickinson20 lists a distinguished array of writers who have concluded that the “principle of State equality” was in fact part of the Grotian tradition, but proceeds to adduce reasons why they were wrong, and himself asserts that: “There was nothing in Grotius’ conception of the international society which made the equality of States an essential principle”. Indeed, elsewhere he says that “Publicists have fallen into a careless way of attributing to Grotius theories which he had no part of establishing . . .” It is possible to ascribe too much significance to the fact that Grotius did not develop a general theory on a subject so important and related to his area of interest as the equality of States. There could be many reasons why he refrained from doing so other than that he did not subscribe to such a theory. Grotius wrote in order that his work should be read, and should be influential. His style, often that of the advocate, rather than of the scrupulously objective scholar, seems to indicate this. Indeed, the enduring attractiveness of his work may be related to that very style of presentation. He would have been careful not to alienate the intellectuals of his day by appearing to espouse theories the validity of which may have impressed him but which might nevertheless have seemed dangerously radical. Thus, while giving the Law of Nature a foundation in reason, he is careful, taking into account the religious sensitivities of the time, to make the whole spring from the ‘free will of God’. Again, while his abhorrence of war is patent, he is careful not to place it outside the pale of law, and in so doing, at once ignore the realities of his world and alienate a powerful military class most of whom belonged to ruling houses. He prefers instead to attempt to temper the barbarous practices of the battlefield by influencing the minds of the generals through suggesting rules of law that would allow them to rationalize the harshness of their profession with their social conscience. It seems likely then, that Grotius, familiar with bitter doctrinal controversies such as those concerning the predestination of souls, would choose to avoid the criticism and argument which might have developed around a general theory of the equality of States, and engendered a prejudice against his work in influential quarters, inhibiting its penetration and acceptance. Would it not have appeared to him preferable to avoid the perils of expounding the principle in which he believed, and yet further its recognition by building it into the foundation of a generally popular piece of advocacy—Mare Liberum? Had that been Grotius’ intention, he was more than partially successful in transmitting it to us.

20  E.D. Dickinson, The equality of States in international law (Cambridge: Cambridge University Press, 1920), 34–68.

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While States are sovereign, the external exercise of that sovereignty in relation to other States is subject to law, and is not absolute. It is not to the advantage of any State, however powerful and self-sufficient, to act in a manner inconsistent with its obligations as a member of the society of States. In assertions such as these we may discover the foundations of a principle perhaps universally held, but acknowledged only in times of crisis like our own: the inter-dependence of States: . . . great States, since they seem to contain in themselves all things required for the adequate protection of life, seem not to have need of that virtue which looks toward the outside, and is called justice. But . . . law is not founded on expediency alone, there is no State so powerful that it may not some time need the help of others outside itself, either for purposes of trade, or even to ward off the forces of many foreign nations united against it. In consequence we see that even the most powerful peoples and sovereigns seek alliances, which are quite devoid of significance according to the point of view of those who confine law within the boundaries of States. Most true is the saying that all things are uncertain the moment men depart from law.21 The principle of the inter-dependence of States is, by implication, supported by the principles of reciprocity and solidarity which themselves have their origin in the social nature or ‘sociableness’ of man. Three elements of Grotius’ thought might be suggested: (1) the subjection of all States to rules of law, which are the product of an inter-action between the Law of Nature and the Law of Nations; (2) prohibition of the subjugation and exploitation of one State by another which, in the light of Grotius’ assertions of the unity of the human race, emphasizes the sovereign equality of States; and (3) the inter-dependence of States in economic and security matters. 21  PRO (Kelsey), paragraphs 21–22. Compare with following passage from Suarez, Tractatus de Legibus ac Deo Legislature (1612), Book 2II, Ch. 19, paragraph 5, quoted by Lauterpacht, op. cit., 20: “Mankind, though divided into numerous nations and states, constitutes a political and moral unity bound up by charity and compassion; wherefore though every republic or monarchy seems to be autonomous and self-sufficing, yet none of them is, but each of them needs the support and brotherhood of others, both in a material and a moral sense. Therefore they also need some common law organizing their conduct in this kind of society.”

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In each of these elements we may discern the residues of morality attributable to the influence of the Law of Nature. In a world of States in which colonial exploitation has left a sense of grievance and the motivation to construct a new world order in which a measure of social justice might be assured, such elements as these have an increasingly normative effect on the development of international law. As one distinguished modern commentator has said of Grotius’ teachings: What remains eternal is the appeal to the jus commune inter populos—the enlightened conscience of mankind.22

Essential Εlements of Grotius’ Legacy Relative to the Law of the Sea

Mare Liberum, on the face of it a work of legal advocacy, if not propaganda, was first published in 1609 evidently at the instance of the Dutch East India Company in defence of Admiral Heemskerck’s capture of a Portuguese ship in the Straits of Malacca. Some 17 years later Grotius dealt with important aspects of the Law of the Sea in De Jure Belli ac Pacis published in 1625. The second work assists us to interpret certain statements in the first in their true perspective, and these works together demonstrate a consistency of approach for which Grotius has not always been given credit.

The Regime of the Open Sea Distinguished from the Regime of Areas under Coastal State Jurisdiction

As the first element of Grotius’ legacy relative to the Law of the Sea, we may note the distinction, not always clear from a reading of Mare Liberum alone, but quite apparent when the latter is read in the light of certain passages of De Jure Belli ac Pacis, between the regime of the open sea which is the subject of Mare Liberum, and that of maritime areas within national jurisdiction. The title Mare Liberum (“Free Sea”) perhaps translated with more elegance than accuracy into English by generations of scholars as “The Freedom of the Seas” may have been responsible (together with a certain predilection in the prevailing political climate for interpretations that tended to promote a right to maximum naval mobility) for ascribing to the principle a somewhat wider meaning than that contemplated by Grotius himself. Grotius’ immediate objective was to establish a principle of freedom of trade, an activity which Portugal in the East, and Spain in the West, claimed to monopolize. Thus, he refers at the outset to the “most specific and unimpeachable axiom of the Law 22  R.W. Lee in 62 Law Quarterly Review (1946): 53–7.

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of Nations, called a primary rule or first principle, the spirit of which is selfevident and immutable, to wit: Every nation is free to travel to every other nation, and to trade with it”.23 Self-evident though it might be, Grotius goes on to offer extensive proofs of this freedom of trade which is at the centre of his concern. On the other hand, since the sea is the medium or surface over which ships must pass in order that freedom to trade with distant lands may be exercised, he recognizes a principle which he relates to Roman law, that the sea is free for use by all. Roman law, not having been faced, as was Grotius, with the specific need to counter foreign claims to monopoly over distant seas, offered mainly notions of res commu­ nis and res publicae, more appropriate for application in domestic or national law questions concerning the sea-shore, fishing and other activities in coastal waters, harbours and road-steads and coastwise trade. In conceiving a Law of Nations based essentially on reason, as emanating from human ‘sociableness’ and inter-acting with an innate Law of Nature, itself a product of human reason (whether or not placed there by God), Grotius was inspired and drew heavily upon Roman Law, refusing to recognize a debt to feudal law, to the law of the Empire, or the authority of the Church. While his extraordinary capacities were generally acknowledged in the Europe of his day and thereafter, there have been both adversaries and critics of his work. If Grotius’ recognition as the “Father of International Law”, rests on his work De Jure Belli ac Pacis, the spread of his fame rests more on his work Mare Liberum. Written primarily to refute the pretensions of Portugal and Spain to exclusive oceanic claims in the East and the West respectively, his arguments were opposed by erudite contemporaries defending the rights of Spain, Portugal, England and Venice in their claims to exclusive possession of parts of the open sea.24 23  ML, Ch. I (p. 7). 24  E.g. Alberico Gentili, Hispanicae advocationis libriduo (1613); Sir John Welwood, Abridge­ ment of all sea lawes (1613); John Selden, Mare clausum sive de dominio maris (1618); Seraphim de Freitas, De justo imperio lusitanorum asiatico (1625); Sir John Burroughs, The sovereignty of the british seas (1653). Freitas defended the Portuguese position on legal grounds. Agreeing with Grotius that the open sea was res communis, he argued that Portuguese activity in east Asia was not based on claims of conquest, but on forms of agreement with local rulers, who retained the power to rescind those agreements; defended the papal donation to Spain and Portugal on the ground that its purpose related to propagation of the Christian faith and would not lead to conflict unless a ruler were to forbid that activity; and developed a theory described as that of “quasi-possession” of sea routes, allegedly based on practices of countries surrounding the Indian Ocean, that empowered the “possessor” to exclude from those routes the ships of those opposed to the possessor’s interests. See Alexandrowicz, infra n. 31, 67–71.

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Rousseau25 interpreted Grotius’ lack of support for opposition to the rule of Christian kings, as a tendency to favour tyrants. Some found Grotius’ style ‘wordy’26 while another accused Grotius of plagiarism, in his extensive reliance on the work of Gentilis in Chapter I of Mare Liberum with slight acknowledgement of the debt.27 It appears that James Brown Scott saw Grotius’ work, in particular Mare Liberum, as that of a professional advocate hired to defend a particular position of his government on contemporary maritime issues, rather than as a unique contribution to legal philosophy that would support his recognition as the “Father of International Law”.28 Some delegates to the Third UN Conference on the Law of the Sea, rather carelessly it would seem, saw in Mare Liberum a work that condoned or supported colonialism. Nothing could be further from the facts, as is shown by the opening passage from Mare Liberum which demonstrates Grotius’ passionate opposition to exploitative and proselytizing dominance, and is reminiscent in tone of statements by delegates from former colonial territories seeking to change the received doctrines of the Law of the Sea being discussed at the Conference: The delusion is as old as it is detestable with which many men, especially those who by their wealth and power exercise the greatest influence, persuade themselves, or as I rather believe, try to persuade themselves, that justice and injustice are distinguished the one from the other not by their own nature, but in some fashion merely by the opinion and the custom of mankind. Those men therefore think that both the laws and the semblance of equity were devised for the sole purpose of repressing the dissensions and rebellions of those persons born in a subordinate position, affirming meanwhile that they themselves, being placed in a high position, ought to dispense all justice in accordance with their own good pleasure, and that their pleasure ought to be bounded only by their own view of what is expedient. This opinion, absurd and unnatural as it clearly is, has gained considerable currency; but this should by no means occasion surprise, inasmuch as there has to be taken into consideration not only the common frailty of the human race by which we pursue not only vices and their purveyors, but also the arts of flaterers, to whom power is always exposed. 25   Contrat Social, Book I, Chapters II and IV. 26  Comments by Archbishop Abbot, quoted in Knight op. cit., n. 1, p. 144. 27  See Knight, op. cit., p. 94. 28  ML, Introductory Note, pp. vi–vii, and comment in Arthur Nussbaum op. cit., n. 4, at Annex II.

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But, on the other hand, there have stood forth in every age independent and wise and devout men able to root out this false doctrine from the minds of the simple, and to convict its advocates of shamelessness.29 The volume of writing on international law in European languages is incomparably greater than that in languages from any other continent and it is only to be expected that, as one recent authority observes: The history of international ideas is intensely Eurocentric. Until the twentieth century, the non-European world appeared to Europe predominantly as an object of colonization, evangelization and civilization.30 Indeed, as European languages were projected across the world through colonial domination, often supplanting—at least initially—the languages of the colonized, it could not have been otherwise. Grotius too, and the great jurists who preceded him and indeed, those who came after, were, without exception, from countries which “by their wealth and power exercise the greatest influence”, drew almost exclusively on European sources of scholarship (although it might be argued that citations from the Bible could fall outside that category) as might Grotius’ own work which offered principles of the Law of Nations grounded on ‘right reason’, which may be thought to be a universal quality. Given the times in which Grotius wrote, it is difficult to see how he could have drawn on sources other than those available in the Europe of his day. His writing was done in the midst of violent religious conflicts. Communication of any kind, and access to written works by Arab and other Asian authors would have been virtually impossible, not least because reliable translations from the original languages and scholarly interpretation of texts would not have been accessible. Works on law, public administration and social control had existed in Asia for nearly 2000 years before Grotius’ systematic exposition of a ‘Law of Nations’, but were translated into European languages only since the end of the 18th century.31 Although those texts are evidence of the existence of ordered 29  ML, p. 1. 30  M. Koskenniemi, “International Law in the world of ideas” in The Cambridge Companion To International Law, ed. J. Crawford & M. Koskenniemi (Cambridge: Cambridge University Press, 2012), 54. 31  The Laws of Manu (Manusmrtior Manavadharmasastra) a work in Sanskrit dealing with a vast range of social obligations in Hindu India, including the duties of individuals at

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civilizations in Asia, as well as of the rules applicable in relations among them, including use of the sea and its resources, it cannot be assumed that knowledge of them would have substantially influenced Grotius in the elaboration of his conception of the Law of Nations.

The Enduring Legacy of Grotius’ Thought: The New Law of the Sea

In reflecting upon the enduring influence of Grotius’ thought on the modern Law of the Sea, we need first to recall two related general principles which, it is suggested, may be derived from his work, viz. (1) the sovereign equality of States, requiring formation of the rules of an international legal order by interaction between the Law of Nature (understood to be “the dictate of right reason”) and the consent of all, or the great majority of States; and (2) the different stages of life, the proper way for a righteous king to rule, the sanctity of treaties, procedures for settling disputes, and punishment for improper behaviour, is said to have been composed around the beginning of the Common Era. A translation into English by Sir William Jones was published in Kolcatta in 1794, followed by a translation of that text into German in Weimar in 1797. A difficult text consisting of some 2685 verses, it attracted the attention of Nietzsche, but is unlikely to have contributed to Grotius’ thinking when working on Mare Liberum in 1809, even if he had been made aware of it. More relevant as such a possible contribution was the Arthasastra, a work of encyclopaedic scope on the functions of government both internal and external, civil, military, commercial, fiscal and judicial. Reputedly composed between the years 321 and 300 Before the Common Era by Kautilya, a powerful courtier whose efforts enabled Chandragupta Maurya to establish the dynasty that would bring much of the sub-continent under its rule in the centuries that followed, the work is divided into 15 books. It was discovered by the Indian scholar Pandit Dr. R. Shamasastry, who published the first translation into English in 1909. Several editions of the work have been published in English, first by Pandit Shamasastry himself, later by Dr. R.P. Kangle, and more recently by Dr. L.N. Ranganathan (Penguin Books India, Kolkatta 1987). The Arthasastra of Kantilya deals with a wide range of matters touching international relations including diplomacy, making war and peace, control of the exploitation of mines and marine resources, as well as regulation of navigation on the ocean as well as on rivers and lakes.  Charles Alexandrowicz, in his magisterial Introduction to the history of the law of nations in the east indies (16th, 17th and 18th centuries) (Oxford, 1967) draws attention to substantial maritime activity in the Indian Ocean being subject, in the 14th century of the Common Era to Chinese naval regulations, and to the existence of a “Maritime Code of Macassar” and a “Maritime Code of Malacca”, citing (at pp. 63–4) translations of these works by J.M. Pardessus in 1845.

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inter-dependence of States for purposes of trade, development and security. Thereafter, the extent to which the prescriptions of Grotius are reflected in the 1982 UN Convention on the Law of the Sea (and its 1994 Implementing Agreement) will be considered.

The Sovereign Equality of States

To create an international legislative process designed to establish a new, comprehensive Law of the Sea taking those principles into account—a law binding on all States whether coastal or land-locked, and designed to regulate their international relations concerning the Sea and its resources, would require not merely a conclave of the powerful as occurred, for example, in Vienna in 1815, and on other State conferences during the 19th Century, but instead (1) the convening of an international conference in which all States would be invited to participate; and (2) that the aim of such a Conference would be to encourage all States to be present and defend their interests regarding a range of subjects and issues of the Law of the Sea, to be followed by negotiation and reconciliation of positions, and the formulation of rules, regulations and procedures that could garner the consent of all, or the largest number of States. That was the monumental task undertaken at the Third United Nations Conference on the Law of the Sea from 1973 until 1982, supplemented by institutional preparatory work, and further negotiation that continued until 1994, a total of nearly 20 years. It was a process based on (1) universal participation, and (2) efforts to secure the consent of all, or the greatest number of States, recalling Grotius admonition to seek the consent “not of particular States, but of the great society of States”. In Grotius’ time maritime jurisdiction was by Papal Decree, apportioned between just two countries—Spain and Portugal. It was not long before England, the Netherlands and France asserted their rights as naval and mercantile powers. The emergence of Germany, Italy and other European powers, the United States, and the recognition as ‘civilized’32 of a handful of Asian, Latin American and African countries expanded the world of States. During the Peace Conference at The Hague in 1899, representatives of some 26 nations gathered to pay tribute to Grotius’ memory. The Hague Conference of 1930, which attempted to deal with some aspects of the Law of the Sea on the basis of preparatory work done by the Leagues’ Committee of Experts, was attended by 32  See as to the applicable standard of ‘civilization’, Bernard Röling, International Law in an expanded world (Amsterdam:  Djambatan, 1960) Chapter IV, and the works cited therein.

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48 States. Some 86 States participated in the First United Nations Conference on the Law of the Sea held at Geneva in 1958, and a similar number attended the Second UN Conference on the Law of the Sea in 1960. No fewer than 164 States (as well as other entities, including Namibia, “self-governing associated States”, territories which enjoy full internal selfgovernment, and National Liberation Movements, all as potential managers of marine natural resources) attended the Third UN Conference on the Law of the Sea. Negotiations on aspects of the Law of the Sea that preceded the Conference, the Conference itself as well as the negotiations that supplemented it, engaged the United Nations in an unique experiment in collaborative law-making, extending over more than a quarter of a century along lines that might have been applauded by Grotius, but beyond any scale he could have imagined. Not only was the Conference without precedent as to the number of its participants, and the range and variety of the issues—legal, economic and technological—to be dealt with; it was the first Conference at which an attempt would be made by plenipotentiary representatives to deal with all those issues simultaneously. There would be no division of the issues into groups for separate negotiation and the piece-meal conclusion of treaties, as had occurred at Geneva in 1958; nor would the Conference have the benefit of a prior study and digestion of the issues such as had been carried out for the 1958 Conference by the International Law Commission. The new Conference was to negotiate and conclude a single treaty of comprehensive scope, in the presence, as far as possible, of all States and interested entities, so that participation in the legislative process would induce confidence in the new law, and consequently acceptance of and compliance with it. In the spirit of Grotius, there would be no gaps in the law:33 reservations and exceptions are narrowly restricted;34 the relationship between the Convention and other international agreements is regulated;35 the Convention offers a comprehensive system for the settlement of disputes, compulsory over a wide range of subjects;36 while the Preamble in its final paragraph, affirms that “matters not regulated by this Convention continue to be governed by the rules and principles of general international law.” Decision-making at the Conference was itself designed to give effect to the principle of universal participation in a manner sensitive to the variety of interests potentially involved. Thus, the fundamental rule was that decisions 33  Above, note 9. 34  United Nations Convention on the Law of the Sea (UNC), Article 309. 35  UNC, Article 311. 36  UNC, Part XV, Section 2.

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would be taken on the basis of one-State-one-vote, by a majority ‘qualified’ according to the importance of the decision.37 In this the Conference, following other United Nations codification conferences, recognizes the sovereign equality of States. However, by way of re-assurance to States holding minority views, the Rules of Procedure incorporate ‘cooling-off periods’38 and other means of postponing votes to permit renewed attempts to reach agreement and, most importantly, contain an additional element: appended to the Rules is a ‘Gentlemen’s Agreement’, an undertaking whereby The Conference should make every effort to reach agreement on substantive matters by way of consensus and there should be no voting on such matters until all efforts at consensus have been exhausted. The Rules were thus designed to take into account the views of all States equally, and regardless of their political or economic influence, but would not permit a deadlock to occur through prolonged confrontation. Recognition of the sovereign equality of States and the efficacy of taking account of all views through consensus-directed rules for decision-making, which had so influenced the Conference process, is apparent in the provisions of the Convention as well. The fourth paragraph of the Preamble recalls at the outset the spirit of the Grotian tradition, in Recognizing the desirability of establishing . . . with due regard for the sovereignty of all States, a legal order for seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment. The sovereign equality of all coastal States is recognized and subjected to uniform rules as to the extension of their maritime competence.39 The only limitations on the exercise of those competences are those imposed by the accidents of geography or history through greater or lesser endowment of the States with maritime zones of economic potential. The problems of States placed at a disadvantage in that respect or lacking a coastline altogether, are recognized and, 37  Rules of Procedure of the Third UN Conference on the Law of the Sea, document A/CONF.62/30/Rev. 3, Articles 38, 39. 38  Id. Article 37. 39  See generally the rights conferred on coastal States in UNC, Parts I–VI and XII–XIV.

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to the extent possible, compensated for.40 All States enjoy the freedoms of the high seas, and the rights accorded them in exclusive economic zones, territorial seas, internal waters and archipelagic waters,41 and are equally subject to the corresponding duties and responsibilities.42 The sovereign equality of States is specifically mentioned and reflected in the institutional provisions of part XI of the Convention. Thus, the International Seabed Authority established pursuant to Section 4 of Part XI as “the organization through which States Parties shall . . . organize and control activities in the Area, particularly with a view to administering the resources of the Area”, is in explicit terms “based on the principle of the sovereign equality of States.”43 Again, the Assembly, described as ‘the supreme organ’ of the Authority and given the power to establish its general policies, is accorded that responsibility “as the sole organ of the Authority consisting of all the members.”44 The oneState-one-vote principle applies to decisions by the Assembly, as it does in the Council,45 the Authority’s executive organ of limited but representative membership, and their subsidiary organs, as well as in the Governing Board of the Enterprise—the organ of the Authority responsible for carrying out sea-bed mining activities.46 The one-State-one-vote principle reflecting the sovereign equality of States applies in all other institutional provisions of the Convention as well, such as conferences or meetings of States Parties convened, for example, to consider amendments to the Convention,47 or to elect the members of the International Tribunal for the Law of the Sea.48 Systems of ‘weighted voting’ based on levels of budgetary contribution though sometimes proposed, were never adopted. However, in order to encourage acceptance of the Convention by the industrialized countries whose technology and financial support were needed to enable the Convention’s provisions on sea-bed mineral exploitation to yield the envisioned benefits, the 1994 Implementation Agreement amends the Convention in ways intended to balance the voting strength of the majority with the interests of a minority 40  See for example UNC, Articles 69, 70, 82 and Part X. 41  See for example UNC, Articles 86, 87, 90, 110–2, 116. 42  See for example UNC, Articles 88, 89, 91–4, 98–109, 117–119. 43  UNC, Article 157. 44  UNC, Article 160. 45  UNC, Article 161 (7) and (8). 46  UNC, Annex IV, Article 5. 47  UNC, Article 312. 48  UNC, Annex VI, Article 4.

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of industrialized countries without abandoning the one-State-one-vote system or resorting to a system of ‘weighted’ voting. This was achieved (1) by requiring each organ of the International Sea-bed Authority to make every effort to reach its decisions by consensus, (2) by providing for an enhanced role for the Council, the executive organ of the Authority; (3) by re-structuring the Council to comprise interest-based ‘chambers’, and providing that a majority opposed to a proposal in any chamber would result in rejection of the proposal,49 and (4) by requiring that any decision having financial or budgetary implications would be ‘based on’ the recommendations of a new organ of the Authority, the Finance Committee.50

The Inter-dependence of States

A principle of the inter-dependence of States is implicit in Grotius’ statement that: . . . great States, since they seem to contain in themselves all things required for the adequate protection of life, seem not to have need of that virtue which looks toward the outside, and is called justice . . . there is no State so powerful that it may not some time need the help of others outside itself, either for purposes of trade, or even to ward off the forces of many foreign States united against it. In consequence we see that even the most powerful peoples and sovereigns seek alliances . . .51 The principle is closely connected with, and indeed could be said to follow from, his concept of States equal in their sovereignty, and subject in all their dealings to a universal law. Rejecting hegemony and exploitation of one State by another, his vision is of a world of sovereign States bound together in time of peace by trade, an activity which is both natural and fundamental. This theme of the inter-dependence of States52 was given eloquent and amplified expression by the majority of States through adoption by the 49  1994 Implementing Agreement, Section 3. Decision-making. 50  1994 Implementing Agreement, Section 9. The Finance Committee. 51  PRO (Kelsey) paras. 21–22. 52  For the views of some recent writers emphasizing the importance of the principle of mutual dependence, or inter-dependence as between developing and developed States, see Röling, op. cit., xii–xiv.

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General Assembly of the United Nations in 1974, of the Declaration on the Establishment of a New International Economic Order,53 a document which offered guidance and inspiration to many at the Conference on the Law of the Sea. That Declaration proclaims the determination of States to work for the establishment of a new international economic order “based on equity, sovereign equality, inter-dependence, common interest and co-operation among all States . . .”54 While passages in the Declaration recall, in their reference to equity, sovereign equality and inter-dependence, certain fundamentals of the Grotian legacy, they take a step further in proclaiming a duty of international cooperation for development. International co-operation is the positive aspect of the inter-dependence of States. International co-operation for development is an extension of the principle, which recognizes the need for a balanced and equitable mutuality of economic benefit between States and is directed to achieving that end. The obligation of positive action by way of co-operation, provided for frequently in the Convention on the Law of the Sea, represents a comparatively recent and valuable development of international law, and one that will require considerable creativity in its implementation. The term cooperation brings to mind an essentially voluntary type of activity and the idea of compelling co-operation by legislation providing for incentives and sanctions could present law-makers with new challenges. The Convention on the Law of the Sea more than any other international agreement in history is designed to create obligations for States to take positive action to co-operate with one another and with international organizations in a wide variety of marine activities. These obligations arise either implicitly, as in the case of directives to States to enact national legislation in specified fields; or explicitly, by imposing, in terms, the duty to co-operate in specific ways. For example, the Convention calls for co-operation between the users of straits used for international navigation, and the States bordering such straits in the maintenance and improvement of navigational safety aids, as well as in the prevention and abatement of marine pollution (Article 43). A general obligation to co-operate in conservation of the living resources of exclusive economic zones of States is provided in Articles 63–67 of the 53  UN General Assembly Resolution 3201, and Resolution 3202 (Programme of Action) 1 May 1974; see also: UNGA Resolution 3281, Charter of the Economic Rights and Duties of States (12 December 1974); UNGA Resolution 3362, “Development and Co-operation”. (Seventh Special Session 1975). 54  UNGA Resolution 3201, Preamble.

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Convention, while co-operation in the conservation of the living resources of the high seas is covered by Articles 117–120. Articles 100, 108 and 109 deal respectively with co-operation in the suppression of piracy, of illicit drug traffic, and of unauthorized broadcasting from the high seas. Articles 197, 199, 200 and 201 deal with co-operation in the prevention and abatement of marine pollution, while Article 123 deals with co-operation among a special group of States: States bordering enclosed or semi-enclosed seas. Of particular importance in the context of inter-dependence are those forms of co-operation which are designed to have an economic impact, through augmenting a developing country’s marine research capability or technological competence. Articles 202–3 provide for technical assistance to and preferential treatment of, the developing countries in the matter of pollution control. The Convention provides for international co-operation “in accordance with the principle of sovereignty and jurisdiction and on the basis of mutual benefit” in Articles 242–44 and 249; while co-operation in the field of transfer of marine technology is dealt with in Articles 266 and 270–2. The Convention’s provisions which reflect the principles of interdependence and co-operation in their most developed form, are those dealing with the regime governing the sea-bed beyond the limits of national jurisdiction, i.e., beyond the continental shelf as defined by Article 76. Those provisions are contained in Part XI (Articles 133–191), and in Annexes III and IV of the Convention, as well as in Resolution I and II of the Third UN Conference on the Law of the Sea. At the heart of those provisions lies the concept of the sea-bed and the ocean floor beyond the limits of national jurisdiction, and their resources, as the ‘common heritage of mankind’55 proposed at the twentysecond session of the UN General Assembly in 1967 by Malta’s Ambassador Arvid Pardo. The principles relating to the ‘common heritage’ were adopted, without dissent, in 1970 by the entire membership of the United Nations in the Declaration of Principles governing the Sea-bed and the Ocean Floor beyond the Limits of National Jurisdiction, Resolution 2749 (XXV). The concept of the sea-bed and its resources beyond the limits of national jurisdiction as it evolved and found expression in the modern Law of the Sea resembles Grotius’ concept of the open sea as the common property of all 55  Some provisions of Part XI and its related annexes of the 1982 UN Convention dealing with international co-operation were amended or suppressed by the 1994 Agreement as being excessively complex or unlikely to be implemented contractually and thus having a negative impact on the development of seabed mining activity. See the present author’s lectures at the Hague Academy of International Law entitled “The Common Heritage of Mankind: Then and Now”, Recueil des Cours, vol. 361, 91 et seq.

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nations. Thus, the Declaration of Principles and the Convention of the Law of the Sea, having declared the sea-bed beyond national jurisdiction and its resources to be the common heritage of mankind, go on to affirm that neither the Area nor its resources can be appropriated, i.e., cannot be made the property of any State or person, and cannot be made subject to the sovereignty of any State—a status claimed by Grotius for the open sea. Further, the Declaration of Principles which first proclaimed that status and, in the opinion of the great majority of countries, thus gave expression to a rule of customary law that had evolved, was adopted by the entire membership of the United Nations without dissent or, to use Grotius’ phrase, “by the consensus of opinion of all mankind”. Thus, the status of the resources of the sea-bed beyond national jurisdiction as the common heritage of mankind, is sui generis and subject—exclusively subject—to the regime set forth in the new Convention. The International Sea-bed Authority provided for in Part XI of the Convention will regulate and supervise mineral resource-related activities over some two-thirds of the earth’s surface. It will, when fully operational, collect revenues from miners within its jurisdiction as well as from mineral exploitation within certain national jurisdictions,56 and distribute these financial benefits, all according to policies and rules adopted by its organs of either universal, or equitably representative, membership.57 For Grotius, the principle of the inter-dependence of States was one that applied not only in economic, but also in security matters.58 There are manifestations of the principle in security-related provisions of the new Law of the Sea as well. Most important among them are those provisions which seek to ensure the mobility of the armed forces of those States which believe that world peace is preserved through the maintenance of a constant balance of military (in the present case, naval and air) strength, of vigilance, and retaliatory capacity. That this belief is widely shared by the majority of coastal States at the present time seems evident in their willingness to concede to the major military powers the right of unimpeded transit through waters over which they might claim to exercise full sovereignty. Thus, the Convention provides for free and unimpeded passage through straits used for international navigation in accordance with a concept of ‘transit passage’: i.e., freedom of navigation and over flight for the purpose of continuous and expeditious passage through the strait.59 Similar provisions guarantee freedom of navigation and over flight through 56  UNC, Article 82. 57  UNC, Article 140, and Articles 160, paragraph 2 (f) (i) and 162, paragraph 2 (o) (i). 58  PRO (Kelsey) paras. 21–22. 59  UNC, Article 38.

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archipelagic waters.60 While provisions of the text confer sovereignty on the coastal State in respect of resources in an exclusive economic zone 200 miles wide, the coastal State concedes that “freedom of navigation and over-flight”, and “other internationally lawful uses of the sea related to these freedoms such as uses associated with the operation of ships, aircraft and submarine cables and pipelines . . .” are to be preserved within that zone.61

Specific Principles Concerning the Regime of Maritime Areas within National Jurisdiction

Grotius recognized that the sovereignty of a coastal State could extend, beyond its land territory and internal waters, to an adjacent belt of sea. While he specified no maximum breadth for such a belt, it was not to be unlimited and should somehow be proportionate to the adjacent land area. Such sovereignty had to be acquired, and he appears to make its retention depend both upon the coastal State’s interest in establishing land-related controls, and its ability to exercise them effectively. Coastal State interests recognized by Grotius appear to be (1) protection of its security, (2) the management (exploitation, conservation, revenue collection) of the resources (essentially fish) of the maritime belt, and (3) maintenance of navigational aids, and recovery of a proportion of the expenses involved in that undertaking. The coastal State must not obstruct navigation “which is of innocent intent”. The framework of principle which Grotius saw as forming the basis of coastal State jurisdiction is in its essentials the framework of today’s law. But the forces for change have inevitably engendered conflicts, and the law, in striving to be effective in their resolution, has evolved in complexity. Security, and resource-related interests of coastal States, however, with their roots in a powerful territorial imperative inherent in the concept of the nation-State, remain the principal determinants of change in the Law of the Sea. Rapid technological advances in a few States were seen by the coastal States among the rest as dramatically increasing hazards to them from (1) highly efficient resource-harvesting capability, (2) accidental or deliberate release of dangerous substances into the sea, and (3) transit of military ships or aircraft. Rising expectations among the numerically superior ‘new’ members of the community, were matched by heightened apprehensions arising from their being at the wrong end of a widening technological gap. By way of response to the perceived threat came claims of sovereignty or exclusive jurisdiction over 60  UNC, Articles 53, 54. 61  UNC, Article 58.

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broad areas of the adjacent seas which clashed eventually with the irreducible minimum demanded by the major maritime States: naval (and military aircraft) mobility in order to respond effectively to a perceived threat to their own security. The new Convention resolves these conflicts by recognizing a spectrum of jurisdictions, in each band of which coastal State concerns are reconciled with the concerns of the major maritime powers. The right of foreign ships to unimpeded navigation, so important to Grotius as being necessary in order to give effect to his ‘axiom’ of freedom of trade, survives in some degree through each band of the spectrum: in the territorial sea, as innocent passage62 for ships, without the right of over-flight; in straits used for international navigation, as ‘transit passage’63 for ships and aircraft; in archipelagic waters, as archipelagic sea-lanes passage64 for ships and aircraft; in the exclusive economic zone, as freedom of navigation,65 subject only to the coastal State’s resource-, environment- or research- related competences; and in the open sea as freedom of navigation66 subject only to certain general obligations67 imposed in the interests of the community as a whole. On the other hand, the coastal State’s resource interests are secured through recognition of its sovereignty in the territorial sea;68 and its “sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources” of its exclusive economic zone,69 and of its continental shelf,70 the latter being equivalent, in most cases, in its modern conception to the entire continental margin up to the abyssal plain. The Convention recognizes the right of the coastal State to enforce its laws and take other action in the exercise of its sovereignty in the territorial sea;71 to enforce certain specified laws within a contiguous zone,72 and to exercise an even more restricted range of surveillance and environmental protection rights in the exclusive economic zone and continental shelf.73

62  UNC, Part II, Section 3. 63  UNC, Part III. 64  UNC, Article 53. 65  UNC. Article 58. 66  UNC, Article 87, 90. 67  For example, UNC, Articles 94, 98, 118, 119. 68  UNC, Article 2. 69  UNC, Article 56. 70  UNC, Articles 56 (3), 77. 71  UNC, Articles 2, 21, 22, 23, 27 (criminal jurisdiction), 28, 30 (civil jurisdiction). 72  UNC, Article 33. 73  UNC, Articles 56, 73 (EEZ); 77, 80, 81, 246, 253 (Continental Shelf).

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An essential element of the Grotian legacy—recognition of the sovereign equality of States—has over time made obsolete the requirement that coastal State jurisdiction over adjacent maritime areas must be claimed and maintained effectively, by force if necessary. Under the Convention, all coastal States will enjoy the full spectrum of rights in adjacent marine areas, subject only to the constraints of geography, and the limits they establish in accordance with rules prescribed, with respect to their territorial sea, contiguous zone, exclusive economic zone and continental shelf. Those rights derive directly from the Convention and, in the opinion of many, from customary international law as well. In the case of coastal State rights over the continental shelf, the Convention emphasizes that they “do not depend on occupation, effective or notional, or any express proclamation.”74 The physical limits of the continental shelf must, however, be established in accordance with Article 76, and for certain States, in accordance with the Statement of Understanding adopted by the Conference on 29 August 1980 (reproduced as Annex II to the Final Act of the Conference)and submitted for consideration by the Commission on the Limits of the Continental Shelf (Annex II to the Convention). Coastal States’ rights to protect their security and the adjacent marine environment—both concerns which come to us from Grotius’ time—are extensively developed in the new Convention. Thus, foreign ships have only a right of ‘innocent passage’ through the territorial sea75 and in certain internal waters.76 That right—which does not include the right of over-flight—is described in greater detail than ever before,77 and coastal State rights78 and duties,79 are to reflect a balance of interests of user and littoral State. A similar balance is sought to be achieved in provisions on ‘transit passage’ through straits used for international navigation.80 Frequency of passage, perhaps enhancing the hazard to littoral State security, is matched by an increase in the user’s interest in securing passage to achieve naval mobility also perceived as essential to security. Prescribed application of generally accepted international regulations, procedures and practices seem to compel the coastal State

74  UNC, Article 77 (3). 75  UNC, Part II, Section 3. 76  E.g., UNC, Article 8 (2). 77  UNC, Articles 19–20. 78  E.g., UNC, Articles 19–23, 25, 26. 79  E.g., UNC, Article 24. 80  UNC, Articles 40–2 (rights of Coastal State); Article 44 (duties of coastal State).

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to greater standards of objectivity.81 The regime of archipelagic sea-lanes passage follows closely that of transit passage through straits.82 The Convention gives the coastal State powers to legislate to prevent, reduce and control marine pollution from foreign vessels in the territorial sea83 and, in conformity with generally accepted international rules and standards, in its exclusive economic zone.84 The enforcement powers of coastal States with respect to marine pollution are conferred and regulated by the Convention.85 Finally, in the context of development of the Grotian legacy in relation to maritime areas within national jurisdiction, we should recall his reference to a ‘right of passage over land’. As with the concept of free navigation, the foundation of this right is the right to trade. “No one”, says Grotius, “. . . has the right to hinder any nation from carrying on commerce with any other nation at a distance.”86 Passage over territory demanded ‘without evil intent’ must, in his view, be granted, and the existence of an alternative route is not a sufficient reason for refusal. While no general right of one State to transport of its goods over the territory of another appears to have come down to us, the idea, based as it is on the right to trade, finds important expression in the right of landlocked States to freedom of access to and from the sea and freedom of transit87 across the territory of an intervening or ‘transit’ State, based on contractual arrangements with the latter.

Specific Principles Concerning the Regime of the High Seas

Grotius’ ‘outer sea’ which corresponds to the ‘high seas’ or the sea beyond the limits of national jurisdiction, is dealt with in Part VIII of the Convention. In the basic concept of a ‘free sea’ it differs little from Grotius’ conception. However, technology has vastly increased the scope of maritime activities, and accordingly, apart from navigation and fishing which were activities for which the sea was ‘free’ in Grotius time; and apart from the freedom to lay submarine cables and pipelines, and to fly over the high seas which were added to the list of freedoms by Article 2 of the 1958 Convention on the High Seas, Article 87 81  UNC, Article 39. 82  UNC, Article 54. 83  UNC, Article 211 (4). 84  UNC, Article 211 (5) and (6). 85  UNC, Part XII, Sections 6 and 7. 86  DJB (Campbell), Book II, Ch. II.xiii.5. 87  UNC, Part X.

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of the 1982 Convention includes two more such freedoms in a non-exhaustive list: freedom to construct artificial islands and other installations permitted under international law; and freedom of scientific research. In addition to these six freedoms, Article 90 provides for the right of every State to sail ships flying its flag, on the high seas. Several of the Convention’s provisions on the regime of the high seas reflect principles enunciated by Grotius. Thus, the ‘freedoms’ listed are to be exercised in accordance with the rules of law applicable to them, and with due regard for the interests of others exercising those freedoms; and with respect to activities on the sea-bed; there should be no interference with the carrying out of other lawful activities. Again, recalling the Grotian principle that the high seas cannot be the property to any one, Article 89 (as did Article 2 of the Geneva Convention on the High Seas) provides that “No State may validly purport to subject any part of the high seas to its sovereignty”. The Grotian principle of the inter-dependence of States is reflected in several articles calling for co-operation among States for the suppression of traffic in slaves,88 or piracy,89 illicit traffic in narcotic drugs90 and unauthorized broadcasting from the high seas.91 The principle of inter-dependence of States and the Grotian principle of conservation of things that are “common property for common use”, together find expression in the Convention’s provisions dealing with co-operation among States in the conservation and management of the living resources of the high seas.92

Specific Principles Concerning Liability to Sanctions

The principles enunciated by Grotius concerning the open sea, though supported abundantly with references to religion and morals, far from being merely the counsels of perfection, were in fact to be rules of law; and being rules of law were not to be broken with impunity. In Mare Liberum he contemplates

88  UNC, Article 99. 89  UNC, Article 100. 90  UNC, Article 108. 91  UNC, Article 109. 92  UNC, Part VII, Section 2. This follows from Grotius’ assertions that the sea and its resources are things “created by nature for common use” (ML p. 28); “are common property for common benefit” (ML p. 29); and that “the common right to all things that nature has produced for the common use of man must be maintained.” (ML p. 27).

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arbitral or judicial proceedings for the recovery of damages for infringement of a right held in common.93 There is thus no finer expression of Grotius’ legacy to be found in the modern Law of the Sea, than the provisions of the new Convention which deal with the settlement of disputes. These provisions, unprecedented in their scope as to compulsory settlement procedures, and counting among their supporters several States which are traditionally wary of such mechanisms, represent a major step toward the establishment of a legal order for the oceans. The principal provisions on dispute settlement are contained in Part XV of the Convention (Articles 279–299), in Annex V on conciliation, Annex VI The Statute of the International Tribunal for the Law of the Sea, Annex VII on arbitration, Annex VIII on special arbitration and, with particular reference to a defined category of disputes arising out of seabed mining activities, Section 5 of Part XI of the Convention, which provides for reference of such disputes to a specially constituted Seabed Disputes Chamber of the International Tribunal for the Law of the Sea. In order to attract the widest possible support, the system of dispute settlement in the Convention provides a measure of flexibility: it allows a State, when expressing its consent to be bound by the Convention, or at any time thereafter, to choose by means of a written declaration, one or more of the mechanisms for settlement of disputes concerning the interpretation or application of the Convention, listed in Article 287, viz., the International Tribunal for the Law of the Sea, the International Court of Justice, an arbitral tribunal constituted in accordance with Annex VII, or a special arbitral ­tribunal constituted in accordance with Annex VIII. By paragraph 3 of Article 287, a State which is a party to a dispute but has not declared its choice of means of settlement under Article 287, or if the parties to the dispute have made different choices under that Article, the parties will be deemed to have accepted ­arbitration under Annex VII, unless they agree otherwise. Only certain defined categories of disputes may be ‘excepted’ from the compulsory procedures entailing binding decisions provided for in Section 2 of Part XV, by declaration of a Member State at its option under Article 298. Those categories include, for example, disputes concerning the interpretation or application of Articles 15, 74 and 83 of the Convention relating to sea boundary delimitations, in particular disputes that necessarily involve consideration of any unsettled disputes concerning sovereignty or other rights over 93  “He who puts his private interests before the public and common interests or who in any way hinders another in the use of something which is his by common right is held in damages to complete restitution in an amount fixed by an honourable arbitrator.” (ML p. 75).

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continental or insular land territory; disputes concerning military activities, and disputes in respect of which the Security Council of the United Nations is exercising its functions. However, even disputes within such categories may be submitted to Section 2 procedures with the consent of all concerned.94 Conclusion Hugo Grotius lived and worked during the last and the deadliest of Europe’s religious wars. Some modern critics see in his work, in particular Mare Liberum, merely the product of a talented counselor hired to promote the interests of The Netherlands—then an ‘emerging’ mercantile and naval power—in its bid to break the trading monopoly of the established European powers of the day, Portugal and Spain. Of course, the prodigy whom King Henry IV of France called the ‘Miracle of Holland’, accomplished much more than success in that particular endeavor, and his oeuvres in the legal field, have been more widely influential and longer lasting than those of any who would deny him the title “Father of International Law”. Drawing upon neither the practices of warring European Princes in their struggle for power, nor the over-arching and highly potent authority of the Catholic Church, Grotius chose as the foundation of rules to govern the conduct of States, the universal and timeless principles that he would call ‘the Law of Nature’, rooted essentially in a characteristic human ‘sociableness’, having its origins in human reason; and a ‘Law of Nations’ formed by the mutual consent “. . . not of particular States, but of the great society of States”. In so doing, he challenged the authority of the Empire and the Catholic Church, and in particular the power of the Pontiff to divide the world among European Princes by means of papal decrees. Of the global impact of those papal decrees, one recent writer observes:

94  See generally Natalie Klein, “Dispute Settment”, in The U.N. Convention On The Law Of The Sea (Cambridge: Cambridge University Press, 2005); J.G. Merrils, “The Law of the Sea Convention”, in International Dispute Settlement (Cambridge: Cambridge University Press, 2000), 170–196; A.E. Boyle, “Dispute Settlement and the Law of the Sea Convention: problems of fragmentation and jurisdiction”, in 46 International and Comparative Law Quarterly (1997): 37–54; Louis B. Sohn, “Settlement of Law of the Sea Disputes”, in 10 International Journal of Marine and Coastal Law (1995): 205–216.

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These bulls are the sole basis for the European legal claim upon the new lands ‘discovered’ by the explorers who had been sent out by the Spanish and Portuguese crowns. They provide a justification for the conquest of indigenous America and were the wedge that drove European nations to hundreds of years of warfare, either defending or challenging the legitimacy of their claims.95 Feudal practices and the colonial schemes that followed, as well as the temporal power of religious hierarchies, have long since withered away. The influence of an eternal law rooted in human reason and the consent of ‘the great society of States’, as conceived by Grotius, still beckons and inspires us to refine its rules and strengthen its institutions in the pursuit of justice in an increasingly complex world. 95  Stephen R. Bown, op. cit., n. 19, 144–145.

Chapter 4

The Origin of the Theory of Sovereignty of the Sea Tullio Scovazzi

Grotius’ Opponents

Since the beginning of the 17th century, the great reputation won by a booklet called Mare liberum and written anonymously by the Dutch scholar Huig de Groot (Hugo Grotius, 1583–1645)1 was decisive in establishing a solid theoreti­ cal foundation in favour of the principle of freedom of the sea.2 In a very short time the Mare liberum gained a widespread diffusion. Among other arguments, Grotius developed a simple idea, based on the very nature of the sea: the regime of the sea must be founded on freedom of use for everybody, for it is impossible to occupy and delimit infinite and boundless natural elements, such as the air or marine waters. The authority of reason and the very nature of things were leading to such a conclusion: Hujus generis est aër, duplici ratione, tum quia occupari non potest, tum quia usum promiscuum hominibus debet. Et eisdem de causis commune est omnium maris elementum, infinitum scilicet ita, ut possideri non queat, et omnium usibus accommodatum: sive navigationem respicimus, sive etiam piscaturam (. . .). Mare igitur proprium omnino alicujus fieri non potest, quia natura commune hoc esse non permittit, sed jubet.3 1  More precisely: Mare liberum sive de jure, quod Batavis competit ad Indicana commercia, dissertatio, Lugduni Batavorum, 1609 (No. 541 in the Bibliographie des écrits imprimés de Hugo Grotius, ed. Ter Meulen & Diermanse [La Haye: Nijhoff, 1950). The name of Grotius as the author appeared for the first time in a Dutch translation published in 1614. 2  The Mare liberum was only a chapter of an extensive treatise entitled De jure praedae commentarius that was found accidentally only in 1864: Grotius, De jure praedae commentarius, ex Auctoris Codice descripsit et vulgavit H.G. Hamaker, Hagae Comitum, 1868 (No. 684 in the bibliography quoted above). The De jure praedae was written to be used in the proceedings held in the Netherlands on the legality of the capture by the Dutch East India Company of the Portuguese carack Catarina in the strait of Singapore. An English translation by G.L. Williams, with a preface by G.A. Finch, was published in Oxford in 1950 (the decision taken in 1604 by the Admiralty College of Amsterdam on the Catarina case is reproduced at p. 375; on this famous case see, inter alia, Acquaviva, Libertà o dominio dei mari: il caso della Santa Catarina, in Anuario de Derecho Internacional (2001): 239. 3  Grotius, De jure praedae commentarius, 219–220. © koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004283787_005

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Within a few years after the publication of the Mare liberum a number of works were printed in favour of the opposite theory of the sovereignty of the sea,4 based on the assumption that also the sea can be occupied. Among Grotius’ opponents the Englishman John Selden is often remembered, while authors such as the Scotsman William Welwood, the Venetian Paolo Sarpi and Giulio Pace da Beriga, the Portuguese Serafim Freitas and the Genoese Pietro Battista Borgo have been almost forgotten. They engaged Grotius and his followers5 in a doctrinal dispute which is known as ‘the battle of books’ (la bataille des livres) and lasted the whole 17th century. As Grotius did in regard of the Netherlands and the Vereenigde Oostindische Compagnie (Dutch East India Company), also his opponents were prompted by the desire to sup­ port the political and economic interests of their own countries. The theorists of sovereignty of the sea were not endowed with the clear and elegant Latin style of Grotius, who was also a learned humanist. However they deserve to be recalled, as they contributed to the development of one of the three cornerstones on which international law of the sea is based still today (freedom of the sea, sovereignty of the sea and the completely innovating regime of common heritage of mankind).

William Welwood

In works published in English (1613)6 and in Latin (1615)7 William Welwood (1566–1624) exposed several reasons that could support both the doctrine of sovereignty of the sea in general and the proclamation adopted by King James I on 6 May 1609 by which Great Britain decided to require licences from foreign 4  On the historical aspects of international law of the sea see Fulton, The Sovereignty of the Sea (Edinburgh: W. Blackwood, 1911); Cialdea, La formazione dell’ordinamento marittimo nelle relazioni internazionali (Milano: Giuffrè, 1959); Oudendijk, Status and Extent of Adjacent Waters—A Historical Orientation (Leyden: A. W. Sijthoff, 1970). 5   Among Grotius’ followers see the Dutch jurist Dirk Graswinckel (1600–1666): Gras­ winckelius, Maris liberi vindiciae adversus Petrum Baptistam Burgum Ligustici maritime dominii assertorem (Hagae Comitum, 1652); Graswinckelius, Maris liberi vindiciae adversus Guglielmum Welwodum Britannici maritime dominii assertorem (Hagae Comitum, 1652). 6  Welwood, An Abridgement of All Sea-Lawes (London, 1613) (Chap. XXVII, which is intended as a reply to Mare liberum, is reproduced in Muller, Mare Clausum—Bijdrage tot de geschiedenis der rivaliteit van Engeland en Nederland in de zeventiende eeuw (Amsterdam: F. Muller, 1872, 324); the quotations hereunder refer to this edition. 7  Welwood, De dominio maris, juribusque ad dominium praecipue spectantibus, assertio brevis ac methodica, Cosmopoli, 1615 (the quotations hereunder refer to the edition published at Hagae–Comitum in 1653).

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vessels engaged in fishing within an area generically designated by the expres­ sion ‘our Coasts and Seas’ of Great Britain, Ireland and the adjacent islands.8 According to Welwood, the close link existing between the territory and the adjacent waters allows an extension of jurisdiction from the coast up to the limit of one hundred miles. It is only beyond this limit that the high seas, open to everybody, begins: Atqui ut Insulae in mari proxime adiacentes, sic & mare ipsum ad cen­ tum usque millaria pro territorio districtuque illius cui proxime appro­ pinquat, assignatur. Territorium porro omne Dominum habet aliquem oportet, vel, (quod idem valet) in dominio alicujus sit, necesse est: Mare ergo terrae proximum ejusdem terrae proximae Dominum agnoscere cogetur: pars etenim illa maris proxima, sic terrae proximae copulatur, &, ut sic loquar, incorporatur, ut ne Principi Dominove illius terrae regnive, vel particulam, usumve alienare aut locare licet magis quam regnum ipsum regnique patrimonium. Ultra has maris partes terrae proximas, quicquid reliquum est, vastum videlicet immensumque aequor omnibus gentibus ad omnes usus indifferenter patere debere, extra omnem con­ troversiam pono.9 The concept of sovereignty over the sea is composed of two primary rights ( jura primaria), relating to navigation ( jus navigandi) and fishing ( jus pis­ candi). In dealing with the latter, Welwood, quotes the passage where the Mare liberum itself admits that fish can be depleted.10 He then elaborates on the sad situation of the Scottish fishermen who are left with the burden of paying the taxes due to the Crown and the Church without being able to catch the fish, as it was already fully depleted by their Dutch competitors: Laeduntur vero Britanni, immo spoliantur, dum maria sua peregrinorum piscatorum quasi inundatione continua sic occupantur, ut non modo pisces exhauriuntur, sed & piscium congregationes dissipantur; ita ut ubi ante annos 30 pisces ad ispas aedes in cumulis exundabant, hodie ad 8  Text in Fulton, op. cit., 755. 9  Welwood, De dominio, chap. I, 13. 10  “Deinde vero etiam qui mari imperaret, nihil tamen posset ex usu omnium diminuere, sicut populus Romanus arcere neminem potuit, quominus in littore imperii Romani cuncta faceret, quae jure gentium permittebantur. Et si quicquam eorum prohibere posset, puta, piscaturam, qua dici quodammodo potest pisces exhauriri, at navigationem non posset, per quam mari nihil perit” (Grotius, De jure praedae, 230).

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multa milliaria dispersi fugatique, magno pauperum piscatorum labore periculoque egerrime apprehenduntur. Ut verissimum illud Batavi com­ perio: Si quis mari imperaret, quicquam prohibere posset, maxime piscaturam, qua quodam modo dici potest, inquit ille, pisces exhauriri. (. . .) Et quod deplorandum magis est, piscationem hanc, conditione iniquiter dispari, utrinque exerceri; illi enim domum remeant & piscibus nostris onusti, & omni vectigali immunes; dum Scoti praeter justas Ecclesiae decimas, etiam fisco piscariam, labores eorum sumptusque saepe super­ antem, persolvere, coguntur.11 If the sovereign of the sea were entitled to impose taxes and licenses on all fish­ ermen, fishing activities would be carried out on the basis of measures, such as closed seasons, that could ensure the conservation of the different resources, such as cods, tunas and whales, and the public benefit (commodum publicum) as well: Vectigalia ista claudit piscaria, ut maris domino, qui onus & curam illius in se suscipit, merito debita, sed quae synalagma, ut & reliqua illa imposita, inducit: scilicet ut maris dominus piscatores sollicite protegat, piscationemque ipsam in commodum publicum prudenter ordinet, prae­cipiendo ut statis aptisque temporibus omnia exerceantur: alia enim est halecum captandarum, alia thymianae piscationis ratio opportunitas­ que. Nam si durante halecum piscatione pisces grandiores, ut thumnos, balenas, & hujusmodi quis aggredi velit, halecum minorumque piscium agmina facile dissipabit.12 The need of conservation and sound exploitation of fisheries and the special interest of the coastal State are duly stressed by Welwood: If the uses of the seas may be in any respect forbidden and stayed, it should be chiefly for the fishing as by which the fishes may be said to be exhaust and wasted; which daily experience these twenty years past and more, hath declared to be ouer true: for wheras aforetime the white fishes daily abounded euen into all the shoares on the Easterne coast of 11  Welwood, De dominio, Chap. III, p. 22. On the response see Tullio Scovazzi, “Dici quodammodo potest pisces exhauriri: Fishing in the Mare Liberum”, in dir. Casado Raigón & Cataldi, L’évolution et l’état actuel du droit international de la mer—Mélanges de droit de la mer offerts à Daniel Vignes (Bruxelles: Bruylant, 2009), 853. 12   Id., Chap. IV, p. 40.

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Scotland; now forsooth by the neere and daily approaching of the busse Fishers the sholes of fishes are broken, and so farre scattered away from our shores and coasts, that no fish now can be found worthy of any paines and trauels; to the impouerishing of all the sort of our home-fishers, and to the great damage of all the Nation.13 Grotius himself prepared a response to Welwood.14 He made clear that his main purpose in writing the Mare liberum was to demonstrate freedom of nav­ igation and that he used freedom of fishing as a corollary for that aim.

Paolo Sarpi and Giulio Pace da Beriga

In the second decade of the 17th century Paolo Sarpi (1552–1623), legal advisor of the Republic of Venice, made five ‘writings’ (scritture) on the sovereignty of Venice over the Adriatic Sea that were intended for the use of the Venetian political authorities and were published several years after his death.15 In this case, the stake was not the sovereignty over vast portions of the oceans, but the legal condition of a big gulf16 largely surrounded along its Northern and Eastern shores by territories falling under the sovereignty of Venice. According to Sarpi, Venice acquired sovereignty of the Adriatic Sea in a progressive way, through the exercise of State authority in different matters, in particular in the fight against pirates who infested the waters in question. The Venetian sovereignty over the gulf was confirmed by a custom established since immemorial time (more than 600 years): Ma mentre dico che il Dominio del Mare sia naturale a questa Repubblica, e nato insieme con lei, non voglio intendere, che tutto in un tempo abbia acquistata la padronanza di tutto l’Adriatico, perché le forze nel principio 13  Welwood, An Abridgement, 330. 14  Grotius, Defensio capitis quinti Maris liberi oppugnati a Guilielmo Welwodo iuris civilis professore capite XXVII eius libri scripti Anglico sermone cui titulum fecit Compendium legum maritimarum, published many years after in Muller, Mare clausum cit. 15  Sarpi, Dominio del Mar’Adriatico e sue raggioni per il ius belli della Serenissima Republica di Venetia, Venetia, 1685. The quotations made hereunder are taken from Sarpi, Opere varie del molto reverendo Padre F. Paolo Sarpi dell’Ordine dei Servi di Maria teologo consultore della Serenissima Repubblica di Venezia divise in due tomi, Helmstat, 1750, vol. II, 327, reproduced in Acquaviva & Scovazzi (a cura di), Il dominio di Venezia sul Mare Adriatico nelle opere di Paolo Sarpi e Giulio Pace (Milano: Giuffrè, 2007), 75. 16  Today, the Adriatic would be considered as a semi-enclosed sea located within another bigger semi-enclosed sea (the Mediterranean).

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non erano tante di poterlo custodire, e guardare tutto (. . .). Ma in pregresso di tempo fatti gl’Imperadori un’altra volta deboli, cessarono di mandare Armata in Ravenna, ed abbandonata quella parte, che è dal fiume di Tronto in quà si ritirarono nella Puglia, il che mise in necessità questa Repubblica, la quale era cresciuta anche di forze a pigliar custodia più ampia del Mare, e tenerlo netto da’ Corsari per mantener sicura la navigazione, incominciando dalla Riviera della Marca Anconitana, e dal Quarner fino a Venezia: il che le costava ogn’anno molto sangue de’ suoi Cittadini, e molto tesoro [. . .]. Per lo che siccome s’è detto, ch’il Dominio del Mare è naturale alla Repubblica, principiato insieme con lei nelle parti prossime a quest’inclita Città, così anche insieme si dee dire, che sia amplificato successivamente nell’altre parti di esso Mare, che sono abbandonate da quelli, che le possedevano prima, e prese in protezione, e custodia dalla Repubblica fin tanto ch’ella s’è fatta Padrona di tutto il Golfo, e perché ciò eccede sei centinaja d’anni, supera, e di già molto ha superato ogni memoria, sicché è confermato con la consuetudine immemorabile.17 The continuous possession by Venice over the Adriatic Sea was confirmed by the appointment of authorities in charge of the government of it, by the prohibition of entering into it without the Venetian authorization, by the enactment of legislation on navigation and by the imposition of taxes: La possessione continuata attuale, e veduta in tutti i tempi, e si vede ancora al presente da tutti per quattro continuati, e non mai interrotti esercizj di Dominio. Il primo per la continuata elezione de’ Magistrati, ch’esercitano il Governo particolare pel Capitano di Golfo. Il secondo per la custodia armata continuamente tenuta, con proibire ad ogn’uno d’entrarvi armato. Il terzo per le leggi ogni tempo statuite sopra la navigazione, ed ese­ guite con pena contra i trasgressori. Il quarto per l’esazioni imposte, e riscosse in ogni tempo.18 17  Sarpi, op. cit., 329–336. 18  Id., 336. Sarpi points out that possession must be exercised in a continuous way which covers not only the past, but also the present time. Otherwise the legal title is lost: “Le quali cose essendo tutte notorie, non può questo Dominio esser dedotto in controversia, nè disputato; ma resta solo il continuar la possessione coll’esercizio de’ medesimi atti giurisdizionali, opponendo la forza a tentativi, che fossero fatti in contrario; perchè siccome le ragioni, ed i titoli de’ privati sono cadaveri senz’anima, quando non sieno vivificati dalla forza della legge

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Sarpi takes into consideration the opposite theory of freedom of the sea, as exposed by ‘some Dutch writers’ (the reference to the anonymous author of the Mare liberum is evident here) and by the Spanish jurist Vázquez de Menchaca:19 Per la prima ragione dicono, che nelle Leggi spesso si ritrova, che il Mare non è d’alcuno, ch’è comune di sua natura, ch’è pubblico per ragione delle genti, che non può esser occupato, perché non può esser confinato, nè posto dentro i termini; e però non può esser posseduto. Aggiungono, che siccome l’aria, ed il lume sono comuni, perché per l’uso d’uno non viene impedito il poter valersi dell’altro, così parimente è comune il Mare; per­ ché per l’uso, che uno abbia d’esso navigandolo, non viene impedito, che non lo possa navigare un altro; per la qual ragione anche difendono, che il Mare non si possa acquistare eziandio per lunghissima, ed immemora­ bile prescrizione; delle quali ragioni si vagliono alcuni Scrittori Olandesi per mostrare, che dagli Spagnuoli non può esser loro proibita con ragione la navigazione all’Indie; e Ferdinando Vespio Dottor Spagnuolo trattando questa materia fa grand’invettive contra que’ Giureconsulti, i quali hanno detto, che i Veneziani, ed i Genovesi sieno Padroni ne’ loro Mari, e pos­ sano proibire la navigazione ad altri, dicendo che sono opinioni contrarie alla Natura; cioè, che nel Mare niun può avere uso, se non comune.20 As regards possession, according to Sarpi there is no reason to make a hardly tenable distinction between land and sea. It is in the common interest if the sea is occupied by a State, for this would make the marine spaces safer and less exposed to acts of violence: e del giudizio, che danno il vigore; così la ragione, ed il titolo del Principe sono cadaveri, quando non sieno animati dalla forza, ed uso di quella, dalla quale ricevono la vita” (ibidem, 337). 19  Grotius acknowledges the contribution provided to him by Vázquez de Menchaca (1512– 1569), who had already sustained (Vasquius Menchachensis, Controversiarum illustrium aliarumque usi frequentium libri tres, Venetiis, 1564, book II, chap. 39) that the use of the sea must be common to everybody, as marine resources cannot be exhausted, and had excluded that sovereignty over the sea could be acquired through prescription or custom: “Verum omnem hanc quaestionem diligentissime tractavit Vasquius, decus illud Hispaniae, cujus nec in explorando jure subtilitatem, nec in docendo libertatem umquam desideres” (Grotius, De jure, 236). On the position taken by Alberico Gentili, who also made some remarks on the freedom of the see in his De iure belli libri III, published for the first time in 1598, see Tullio Scovazzi, “Alberico Gentili e il diritto del mare”, in Vassalli di Dachenhausen, ed., Atti del Convegno in memoria di Luigi Sico (Napoli: Editoriale Scientifica, 2011), 489. 20  Sarpi, op. cit., 349.

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Ma questo Scrittore [= Vázquez de Menchaca], ed altri, che seguono la sua opinione hanno poco considerato, come s’intende che il Mare per legge naturale sia comune; imperocché non è comune altrimente per Natura, nè più, nè meno di quello, ch’è comune la Terra, la quale Dio, e la Natura hanno concessa tutta al Genere umano, e non l’hanno divisa; hanno però lasciato nella podestà degl’Uomini di dividerla, secondo la loro comodità, ed utilità, siccome giustamente un popolo, che ha trovata una Regione non posseduta da alcuno, ha potuto occuparla, e farla tutta sua, proibirne l’uso ad un altro senza offesa di Dio, e della Natura, anzi con divina permissione, ed approvazione; così parimente chi ha trovato un Mare non custodito, e non guardato da alcuno ha potuto per sua uti­ lità pigliarne la custodia con consentimento di Dio, e degli Uomini; anzi come in Terra a pubblico servizio del genere Umano comple, che le regioni sieno divise, e custodite, perché così si rendono sicure dalle vio­ lenze; e quelli che ne hanno assunto il Dominio usano le forze nella custodia; dove che se non fossero appropriate per l’imperfezione umana di trascurar le cose comuni, resterebbero neglette ed esposte ad ogni ingiuria; così torna a pubblico servizio di tutti, che i Mari sieno resi sicuri; nè mai alcuno potrà trovar ragione di questa chimerica differenza, che vogliono mettere frà la terra, e l’acqua; anzi le stesse ragioni d’occupa­ zioni, possessioni, prescrizioni, e consuetudini, le quali danno ragione in terra, la danno parimente in acqua.21 A distinction can instead be made between the air and the sea, as only for the latter there is a need that a State exercises authority to keep the waters free from pirates. The State in question has the right to levy taxes on navigators not because they use the sea, but because they are also bound to contribute to the expenses that are made for the benefit of everybody: L’esempio dell’aria, e del lume non sono a proposito, perché nell’aria non possono mettere impedimento i cattivi Uomini all’uso; e perciò non ha bisogno d’essere custodita dall’ingiuria loro; ma il Mare sarebbe da’ Corsari turbato, e reso senza alcun buon uso; nè si fanno pagar dazj a’ Naviganti, perchè usano, navigando, il Mare, poiché quello non si con­ suma, ma si fanno pagare, perché non si può tenere il Mar sicuro senza spese, secondo quella sicurezza e ’l benefizio loro; onde è di dovere, che contribuiscano; cosa naturale, che chi è a parte dell’utilità, sia anche a 21  Id., 350.

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parte del peso; ed avendo così statuito la Maestà divina, che chi è protetto dal Principe lo riconosca colle contribuzioni, e co’ Dazj.22 Sarpi, taking advantage of a passage that could be found in Grotius’ Mare liberum itself,23 points out the difference between the possession of the oceans, which was claimed by Spain, and the possession of much a more restricted sea, which was claimed by Venice: Non è pari la controversia trà gli Spagnuoli, e gli Olandesi alla Causa della Serenissima Repubblica; prima perché le pretensioni degl’Olandesi non sono sopra un Mare serrato, limitato, posseduto, e custodito con fatiche, e spesa da tempo immemorabile, com’è questo di Venezia; trattano dell’Oceano, che per la sua immensità da niuna Potenza umana può esser guardato tutto. Più s’aggiugne, che ancora non eccede la memoria degli Uomini il principio della navigazione degli Spagnuoli già meno di cent’anni principiata; laddove nell’Adriatico il Dominio è nato colla Repubblica, e stabilito da consuetudine immemorabile; perloché non si ha da fare alcuna comparazione di queste ragioni.24 According to Sarpi, the extent of sovereignty over the sea cannot be expressed in a predetermined distance from the shore, but is based on the needs of the coastal State: Cercano i Giureconsulti quanta parte del Mare appartenga a ciascheduna Città: ed alcuni d’essi hanno detto cento miglia; ma parlando propria­ mente ella è tanto grande, quanto può ad operare a suo uso, senza ingiu­ ria de’ Vicini; perché una grande, e popolata Città sul Mare, la quale abbondi di siti terrestri, dove cavi il suo vitto, avrà pochi, che vogliano far il mestiere di Pescatore, e si valerà di poco Mare, dove una picciola Città con un poco di commodità in Terra attenderà a cavare il vitto dal Mare, e 22  Id., 350. 23  “Nemo jam non videt ad usum rei communis intercipiendum nullam quantivis temporis usurpationem prodesse: cui adjungendum est, etiam eorum qui dissentiunt auctoritatem huic quaestioni non posse accommodari. Illi enim de mediterraneo loquuntur, nos de oceano; illi de sinu, non de immenso mari, quae in ratione occupationis plurimum differunt. Et quibus illis indulgent praescriptionem, hi littora mari continua possident ut Veneti et Januenses, quod de Lusitanis dici non posse modo patuit” (Grotius, De jure praedae, 241). 24  Sarpi, op. cit., 350.

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si valerà di gran parte d’esso; e non altrimente hanno voluto intendere i Giureconsulti de’ cento miglia; ponendo un numero determinato per un incerto; cioè le Città sono Padrone di tanta parte di Mare, di quanta hanno bisogno di valersi senza ingiuria d’altri, se fossero ben cento miglia.25 Similar ideas were expressed in the same period by Giulio Pace da Beriga (1550–1635), who also supported the sovereignty of Venice over the Adriatic Sea.26 According to Pace also the sea can be occupied and the State that con­ trol a given sea is entitled to prohibit non-authorized navigation: Ita etiam communio maris: adeo ut per mare a nemine occupatum navi­ gatio sit omnino libera: per mare autem occupatum ab aliquo principe (hoc verbo etiam respublicas complector) liberam habeant navigatio­ nem qui sunt illi principi subiecti: alij vero eatenus habeant, quatenus idem princeps eis permittit.27 The extent of sovereignty over the sea depends on the capacity of control and on the needs of the coastal State. In other words, the sea is the territory of maritime States: Addit ex Aristotile in politicis, mare civitatibus maritimis esse territo­ rium, unde sumunt alimenta, & auxilia. Sed quemadmodum in terra, ita etiam in mari, quaelibet civitas tantum possidet, quantum occupare, regere ac tueri potuit & ut in singulis personis, ita etiam in Civitatibus, & in Principibus obtinet ut non ad aequalitatem arithmeticam redigantur, nec ad necessitatis normam; sed alij plus, alij minus obtineant, etiam quam sibi necessarium videatur.28

25  Id., 346. 26  Pacius A Beriga, De dominio maris Hadriatici disceptatio, Lugduni, 1619, reproduced in Acquaviva & Scovazzi, op. cit., n. 15., 119. On this work see Acquaviva, Giulio Pace: la giurisdizione di Venezia sul Mare Adriatico, in Acquaviva & Scovazzi, op. cit., n. 15, 39. 27  Pacius A Beriga, De dominio, 42. 28  Id., 56. Also Pace recalls that Venice had acquired sovereignty over the Adriatic Sea as the result of possession of it since immemorial time (ibidem, 80).

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Serafim Freitas

An analytic reply to the arguments exposed by Grotius in the Mare Liberum came in 1625 in the book De justo imperio Lusitanorum Asiatico, written by the Portuguese jurist Serafim Freitas (1570–1633)29 in support of the claims and interests of Spain and Portugal (both States were joined in a royal union from 1580 to 1640). Much of the elaboration by Freitas is devoted to the question of the legal­ ity and the erga omnes effect of the bull Inter Caetera of 14 May 149330 by which Pope Alexander VI donated to Spain (more precisely to the sovereigns of Castile and Aragon) all the islands and all the mainland, discovered or to be discovered, located westward of an imaginary line joining the poles and drawn 100 leagues west of the islands of the Azores and Cape Verde.31 Nevertheless Freitas also deals in general with the question of sovereignty over the sea. According to him and unlike what assumed by his anonymous opponent (Incognitus, that is Grotius), things which are common under gen­ eral international law can be acquired by a State under a special regime: Tum etiam quia post ius adquisitum in illis, quae antea iuregentium com­ munia erant, iam non agitur de illo iure communi, ut putat Incognitus, sed de speciali, & privato competenti ei, qui sic, adquisivit, ut multis exemplis illustrari potest . . .32 The fight against pirates, that can be conducted by every State, is the kind of activity that grants sovereignty over the sea to the State that has in fact carries it out: 29  Freitas, De justo imperio Lusitanorum Asiatico, Vallisoleti, 1625 (reprinted, with an introduction by M. Caetano, in Lisbon in 1960–1961). See Alexandrowicz, “Freitas versus Grotius”, The British Year Book of International Law (1959): 162. 30  Text in Du Mont, ed., Corps universel diplomatique du droit des gens, vol. 3. (The Hague: P. Husson et. Charles Levier, 1726–1731), 302, and (with translations in English and French) in Annales d’Études Internationales (1973), 309. 31  The immediate reaction of Portugal, another Catholic power very active in overseas expansion, led to the conclusion of a bilateral treaty signed by Castile-Aragon and Portugal at Tordesillas on 7 June 1494. The parties divided among themselves all the lands and islands, discovered or to be discovered. They shifted the line to 370 leagues west of the Cape Verde islands and agreed that all lands and islands belonged to Portugal, if located East of the line, or to Spain, if located West of the line. 32  Freitas, De justo, chap. X, para. 26.

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Et quamvis Incognitus hanc protectionem in mari agnoscat, ut tamen dif­ ficultatem effugiat, respondet eam protectionem de iuregentium compe­ tere aequaliter non minus Imperatori quam alijs Principibus, cum agatur contra piratas (. . .). Nos autem replicamus id verum esse ante praeccupa­ tionem omnibus competere, post ea vero illius proculdubio erit, qui suis sumptibus mare tutum a piratis reddendi onus in se suscepit, vel cui Provinciarum adiacentium Imperium pertinet . . .33 Freitas addresses his most difficult obstacle by sustaining that, even though because of human incapacity it is difficult to occupy the whole ocean, parts of it can be subject to occupation: Nec huic iurisdictioni, & occupationi repugnat vel maris immensitas, vel natura & qualitas, ut pungit Incognitus. Nam quoad immensitatem, argu­ mentum concludit non posse omnem Oceani tractum occupari, idque propter nostram impotentiam, non tamen inde sequitur, nec partem occupationis capacem esse . . .34 According to Freitas, the extent of sovereignty over the sea depends on the capacity of the State to control the waters in question: Et ex omnium etiam Incogniti suffragio pars maris terrae adiacens ad illius dominium pertinent, ad quem & terra: circa spatio vero discordant scribentes, ut advertimus supra (. . .). Ergo cum ille maris districtus a iure naturali non diffiniatur, consequens est dicamus, & Imperio, ac iurisdic­ tione prolatari posse, vel restringi ex dominantis potentia, sicut & in arida maioribus, minoribusve territorijs urbes circumscribuntur.35 The subsequent pages of Freitas’ work are devoted to the difficult task of prov­ ing that Spain and Portugal also acquired by acquisitive prescription and cus­ tom a legal title over the lands and seas that the Pope had donated to them.

33  Id., chap. X, para. 36. 34  Id., chap. X, para. 38. 35  Id., chap. X, para. 40.

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John Selden and Pietro Battista Borgo

After Welwood, the reasons of Great Britain were upheld also by the English jurist John Selden (1564–1654) who published in 1635 a book entitled Mare clausum.36 In his very erudite work, he tried to demonstrate two basic assump­ tions. First, that the sea is capable of occupation as if it were land: “Non alia habebatur tutelae maris quam telluris seu terrestris provinciae ratio”.37 Second, that Great Britain had already acquired sovereignty over the North Atlantic waters (Oceanus Britannicus), especially as far as the activities of navi­ gation and fishing were concerned: “Ut transeundi, ita & Piscandi libertatem a Regibus Angliae, seu territorii Marini dominis, impetratam comperimus”.38 Genoa, another maritime republic established in the Italian peninsula, also claimed sovereignty over the portion of the Mediterranean called Ligurian Sea. The determination of the extent of the waters in question was not fully clear. In support of the claim, Pietro Battista Borgo (dates of birth and death unknown) published in 1641 a work based on Selden’s model.39 Also according to Borghi, the sea can be occupied, including through control operated by a military fleet. He also points out that the coastal State interests can be affected not only by fishing activities carried out by foreign vessels, but also by navigation exercised by foreign competitors of national merchants: Sed falsum est maris dominum ex navigatione, & piscatu aliorum, non sentire detrimentum. Navigatio namque exterorum ijs, qui mare acco­ lunt, utilitatem & commodum minuit, qui fortasse id mercaturae genus exercerent, quod exteri exercent. (. . .) In piscatu clarius elucet incommo­ dum; nam si exteri piscentur in mari, seu pisces, seu margaritas, seu cora­ lia seu simile quippiam, mare piscibus redditur infrequentius, alijsque facile exhauritur.40

36  Seldenus, Mare clausum seu de dominio maris libri duo (Londini, 1635). 37  Id., book II, chap. XIV. 38  Id., book II, chap. XXI. 39  Burgus, De dominio Serenissimae Genuensis Reipublicae in mari Ligustico libri II (Romae, 1641). 40  Id., book I, chap. XI.

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The Οutcome of the Βattle

The theoretical battle between the freedom and sovereignty of the sea had a quite obvious outcome based on what occurred in States practice.41 In fact, all the claims to authorize foreign navigation in entire oceans and seas remained devoid of any concrete possibility of enforcement. What it was possible to enforce were claims to regulate fishing activities and protect neutrality from acts of naval belligerency within a narrow belt of coastal waters. Some years after the publication of Mare liberum, Grotius himself wrote in his general treatise on international law that his theory of freedom of the sea was intended for the open seas and was not related to limited extents of waters, such as bays or straits, that could be occupied by the coastal State: Videtur & mare occupari potuisse ab eo, qui terras ad latus utrumque possideat, etiamsi aut supra pateat ut sinus aut supra & infra ut fretum, dummodo non ita magna sit pars maris, ut non cum terris comparata portio earum videri possit.42 In the last period of his life Grotius clearly remarked that what deserved to be discussed in the near future was not the theoretical question of the possibility to occupy the marine space in itself, but the practical problem of how to draw the boundary between the coastal waters, which are subject to occupation within a reasonable limit, and the high seas, which is reserved for the regime of freedom: “Puto non ut disputetur an mare in jus proprium cujusquam possit concedere, sed quanta cuique pars cessura sit”.43

41  As remarked by the eminent scholar to whom this collection of essays is dedicated, “également sur la base du droit coutumier fut résolue, comme on le sait, la question de la suprématie maritime à la fin du XVIIème siècle en faveur de la these de Grotius, pour des raisons d’ordre juridique aussi bien que politique. L’Angleterre, qui n’avait plus besoin de raisons pour continuer à défendre les formules érudites et fausses de Selden, remplaça la puissance maritime du Portugal et celle de l’Espagne” (Hugo Caminos, “Les sources du droit de la mer”, in R.-J. Dupuy & Vignes, ed., Traité du nouveau droit de la mer (Paris: Bruylant, 1985), 58. 42  Grotius, De jure belli ac pacis libri tres, Parisiis, 1625, book II, chap. III, para. VIII. But more or less the same concept can be found also in the Mare liberum (see supra, note 27). 43  Letter written by Grotius in 1637, in Briefwisseling van Hugo Grotius, vol. 8, ed. P.C. Molhuysen, (The Hague: Nijhoff, 1928), 303.

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It thus appears that with a minor, but sensible, concession Grotius won the battle against all the supporters of sovereignty of the sea, despite the many efforts that the latter deployed in their learned and often redundant writings. Easy and elegant, as in Grotius’ style. In 1702 the Dutch jurist Cornelis van Bynkershoek (1673–1743) gave a logical response to the pending question of the extent of coastal States’ sovereignty. If the decisive element is possession, that is the concrete exercise of State authority accompanied by the intention to possess, the limit of sovereignty is given by the extent of waters that the coastal State can effectively possess. The effectiveness of possession can be granted by the continuous navigation by a fleet of a certain extent of waters. But (and here is the most characteris­ tic aspect of the thought of Bynkershoek) the control of the sea from the sea should be replaced by the control of the sea from land. It follows that the limit of the sovereignty of the coastal State is the range of space that can be covered by the weapons placed on land (the so-called cannon shot rule). The underly­ ing idea, which is still today retained in international law of the sea, is that legal titles over coastal waters have an accessory character with respect to titles established on land. Existimem itaque, eo usque possessionem maris proximi videri porrigen­ dam, quousque continenti potest haberi subditum; eo quippe modo, quamvis non perpetuo navigetur, recte tamen defenditur & servatur pos­ sessio jure quaesita; neque enim ambigendum est eum possidere con­ tinuo, qui ita rem tenet, ut alius eo invito tenere non possit. Unde dominium maris proximi non ultra concedimus, quam e terra illi impe­ rari potest, & tamen eo usque; nulla siquidem sit ratio, cur mare, quod in alicujus imperio est & potestate, minus ejusdem esse dicamus, quam fossam in ejus territorio. Quare omnino videtur rectius, eo potestatem terrae extendi, quousque tormenta exploduntur, eatenus quippe cum imperare, tum possidere videmur. Loquor autem de his temporibus, quibus illis machinis utimur: alioquin generaliter dicendum esset, potestatem terrae finiri, ubi finitur armorum vis; etenim haec, ut diximus, possessionem tuetur.44 It was evident that the vast ocean could never be possessed by any fleets or weapons placed on the coast and had to remain free: “Hunc [= vastum Oceanum] non occupari, certe possideri non posse res est oppido manifesta: 44  Van Bynkershoek, De dominio maris dissertatio, Lugduni Batavorum, 1744 (published for the first time in 1702), chap. II.

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omnes quippe omnium principum naves ei possidendo vix ac ne vix quidem suffecerint”.45 But the battle fought by the supporters of sovereignty of the sea was not completely lost. They introduced a latent element of subjectivism and dynamic instability into the overall picture of law of the sea. If the basic factor is the need of States, any limit could be overcome and replaced by another, as a consequence of new needs and changing circumstances. Yet the subsequent historical development of international law of the sea shows that most rel­ evant changes in the rules are linked to claims to extend State sovereignty over waters in the light of new interests and concerns. In fact, also the principle of freedom of the sea has a relative character, as any other legal principle and, with the passing of time, it has undergone a process of progressive weakening. The erosion of the principle of freedom of the sea, as far as new interests and activities required a specific regulation, has been the main trend in the evolution of international law of the sea and such erosion has increased at an irresistible pace in the second half of the 20th century by the creation of new legal concepts (continental shelf, exclusive economic zone, common heritage of mankind). Will the balance struck in the present United Nations Convention on the law of the sea (Montego Bay, 1982) block such a natural process of erosion?46

45  Id., chap. VII. 46  The use of the adjective “natural” already shows that I give to the question a negative answer.

Chapter 5

Reflections on the ‘Abstention Doctrine’ in the Diplomatic History of Modern Ocean Law Harry N. Scheiber Introduction The modern transformation of ocean law is, at this writing, in almost exactly its seventieth year. For only a few weeks after the guns fell silent in the Pacific theatre and Japan finally surrendered to the Allies,—and with the global community facing the desperately difficult challenges of widespread human suffering and the rebuilding of devastated economies—the U.S. Government issued what became known as the “Truman Fisheries Proclamation”. Published on September 28, 1945, this proclamation, along with another of the same day regarding the U.S. claim to ownership and control of its adjacent continental shelf, struck a swift and largely unexpected blow to the established legal order of the oceans. In this brief paper, I offer a set of modest reflections on an episode in the early phase of the ocean-law transformation, beginning four years after the fisheries proclamation was issued, viz., the U.S. advocacy of a policy commonly termed the ‘abstention doctrine’. Although it is seldom any longer given significant attention in the literature on law of the sea, the abstention doctrine and its brief history seem well worthy of re-evaluation from the standpoint of our own day. A retrospective view, as offered in the pages that follow, deals with the context of its development in the U.S. policy process, its immediate impact by dint of its incorporation into the International North Pacific Fisheries Convention of 1952, and, finally its longer-term contribution to the development of what has become the sweeping transformation of ocean law since 1945. Celebrating a parallel seventy-year anniversary, we honor here the brilliant career in international law that commenced when the young Argentine lawyer Hugo Caminos first undertook advanced postgraduate studies at the University of California, Berkeley, and then further research at UCLA and at Columbia University, during the academic year 1945–46—the very moment, fortuitously, when the Truman Fisheries Proclamation launched the train of profound changes that have provided the focus of much of Judge Caminos’s scholarly and juridical activities ever since.

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His academic year in the three American universities was a time of exceptional perplexity internationally with regard to the newly announced Truman policies; and of course it quickly became a time witnessing spirited initiatives and counter-initiatives by other countries in response to the U.S. proclamation. Every State was then necessarily engaged in reevaluating and readjusting basic foreign policies and positions on international law, as the sun rose on the postwar world and the new emerging order and institutions in international law, finance, and trade. But now, in addition, the ministries of foreign affairs and fisheries interests everywhere also had to absorb the shock of the U.S. Government’s apparent abandonment of its long-standing role as a powerful champion of the dominant ‘freedom of the seas’ regime.1 For the United States itself, the turmoil created by the Truman Proclamation meant that a new policy position was needed in order to serve U.S. interests and at the same time advance the cause of a new equipoise and stability in ocean law. The new policy would not emerge until 1949–50, when it was set forth by Washington under the rubric ‘abstention doctrine’.

The Fisheries Proclamation and Failure of Implementation

President Truman’s fisheries proclamation announced that the United States intended to establish ‘conservation zones’ (of undefined boundaries and area) well out to sea beyond the three-mile line that so long had marked the outer limit of U.S. sovereignty. With this single stroke, the U.S. Government dramatically destabilized the inherited ocean-law regime in which it had long played a leading role as one of the world’s dominant maritime powers. The global community therefore was suddenly facing the spectacle that the long-standing global ocean regime was being shattered, with no clear prospect of a new legal framework being built in its place that carried a realistic hope of early acceptance at the level that the older legal precepts had enjoyed.2 1  Ann L. Hollick, U.S. Foreign Policy and the Law of the Sea (1981): 56–60. 2  Id., 56–60, 68–81; Harry N. Scheiber, Inter-Allied Conflicts and Ocean Law, 1945–53: The Occupation Command’s Revival of Japanese Whaling and Marine Fisheries (Taipei: Institute of European and American Studies, 2001), 10–23. [Hereinafter cited as Inter-Allied Conflicts] This is not to say by any means that the Grotian order, enforced by the naval power of the great maritime states, especially the United Kingdom and the United States, had been entirely free of challenges and tensions over the three-mile rule. Indeed, as Stefan A. Riesenfeld many years ago famously demonstrated with an extraordinary depth of historical documentation, the ‘three mile rule’ had never been without challenge or uniformly advocated and/or applied even by its principal champions in the modern era. See, inter alia, Stefan Riesenfeld, The

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Ironically, the U.S. Government never actually followed through; indeed, in a matter of only a few months it had become clear that the Proclamation had been a diplomatic blunder of the first order. This was so because domestic political realities, reinforced by some overriding security and ideological considerations, undermined the American government’s will to implement the ‘conservation zone’ concept. These pressures against implementation came from a range of sources: (a) from the U.S. Navy, with its concern to keep the sea lanes open globally for deployment and transit of the fleet; (b) from the distant-water segment of the fishing industries (especially from the Pacific tuna interests) that feared exclusion of their vessels from offshore waters, as other nations were moving to expand their own zones of control and to impose exclusionist regimes in formerly free high seas areas; and (c) from the internationalist wings of the policy planning and diplomatic ranks of the U.S. government itself, opposed as these officials were to the unilateralist style and form of the proclamation and its plan. Hence no U.S. conservation zone was established; and by December 1948, after four years of inaction despite the hopes (and continuing demands) of the West Coast and Alaskan salmon industry for protection from foreign competition in ‘their’ offshore waters in the Northeast Pacific quadrant, the State Department had effectively abandoned even the pretense of an intention to undertake implementation. It began vigorously asserting once again, instead, the U.S. commitment to the three-mile rule.3 Meanwhile, in the process that is well chronicled in the canonical historical and legal literature on how the Grotian order of the oceans eroded after 1945, other nations aggressively seizing the opportunity given them by the United States to declare extended offshore jurisdiction over fisheries. Some moved to assert even full sovereignty over vastly extended adjacent areas of what had been the traditional high seas immune from such state controls under the expansive terms of Grotian doctrine. And so, with remarkably swiftness, a sequence of policy initiatives and an increasingly legitimized new realpolitik was set in motion with regard to ocean resources. The Pandora’s box had indeed

Protection of Coastal Fisheries Under International Law (Washington: Carnegie Endowment for International Peace, 1942). 3  The shift in policy was made evident in a speech (given in Dec. 1948) by the State Department fisheries officer Wilbert Chapman, “U.S. Policy on High Seas Fisheries”, 20 Dep’t State Bulletin (1949): 67–71.

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been opened, and a distinct and memorable moment in ocean-law history was set in motion: the era of extended jurisdiction and of ‘ocean enclosure.’4 The movement’s dynamic consisted of the well-documented process of post-1945 oceans diplomacy: the series of regional and international conferences, the International Court of Justice’s validation of limited abridgments of the inherited legal order of coastal fisheries, the extended comprehensive study of ocean law by the International Law Commission, the inexorable rise in number of coastal nations declaring fisheries zones or economic zones as far out as 200 miles—all culminating, in the UN meetings from which there finally emerged the 1982 treaty, UNCLOS, with its framework for a comprehensive regime of obligations and rights that has now served for three decades as a basic framework of ocean governance (commonly termed ‘the constitution for the oceans’).5 While this global enclosure movement was gathering momentum, the United States confronted a further unique complication with regard to its position on ocean law: This was the dilemma of how to square its newly readopted position against ocean enclosure with the objective of accelerating (especially after the outbreak of the Korean War) the termination of the Allied Occupation and the conclusion of a peace treaty and security treaty with the Japanese nation restored to full sovereignty.6 These objectives were fraught with difficulties in the domestic political arena: The American salmon industry, in league with other nationalistic forces, represented a formidable barrier to any peace treaty settlement that would leave Japanese fishing interests free to re-enter American waters off the Pacific shore. An exclusionist agreement, to keep Japan out of their long-time fishing grounds in the Bering Sea and the Northeast Pacific, was the sine qua non for West Coast votes needed to ratify the peace treaty now sought so urgently by the White House.

4  This history is recounted authoritatively in the works by Lawrence Juda, International Law and Ocean Use Management: The Evolution of Ocean Governance (New York: Routledge, 1996), 103–200; and Hollick, op. cit. 5  William T. Burke, The New International Law of Fisheries: UNCLOS 1982 and Beyond (Oxford: Clarendon Press, 1994), 1–25; Juda, op. cit. 6  Once the hostilities against South Korea began, the State Department fisheries officer stated in 1951, American “opportunities for using duress” against Japan in any diplomatic negotiations “quite vanished, so far as fisheries matters are concerned.” Letter from Wilbert Chapman to Montgomery Phister, March 5, 1951, Chapman Papers, University of Washington Library, Seattle.

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American policy makers thus became engaged in an urgent quest to achieve what had become three key objectives—(a) an early agreement on the peace treaty; (b) the exclusion of the Japanese fleets by some formula for protection from competition by new entrants in the salmon and other fisheries of American offshore waters in the Pacific; and (c) the devising of a policy regarding ocean fisheries law that would simultaneously be consistent with— or at least plausibly claim consistency with—the reasserted ‘post-Truman Proclamation’ position of the United States against ocean enclosure and in renewed support of the three mile rule.7 The product of this urgent quest was, in time, the abstention doctrine.

Formulating the New Doctrine of ‘Abstention’

The main burden of devising a way out of the conundrum facing the State Department fell upon the department’s specialist in fisheries issues, Dr. Wilbert M. Chapman, who was an accomplished fishery scientist, a geopolitical visionary, and a proven manipulator of the levers of bureaucracy. Chapman settled early on the idea of obtaining a “voluntary” concession from Japan by which her fishing fleets would stay out of the offshore waters that concerned the American industry, yet preserve in principle the ‘freedom of the sea’ now valued by both the Yoshida government in Japan (still under occupation control) and, at least in broad formal terms, by the U.S. Government.8 Chapman was aware that as early as 1931, the State Department had explored with the Japanese the idea of a bilateral agreement that would provide Japan with trade concessions in return for a halt to licensing of Japanese fishing vessels to operate in the waters off the American coast. And in 1937, U.S. Secretary of State Hull had presented Japan with a tentative proposal by which the United States, Canada, the USSR, and Japan would mutually agree to each of them abstaining from fishing in designated offshore ‘zones’ of the other three countries. Both those initiatives were abandoned after brief

7  Harry N. Scheiber, “Origins of the Abstention Doctrine in Ocean Law”, 16 Ecology L. Q (1989). 8  A full study of Chapman’s career and influence in scientific study, management, and diplomacy of fisheries is provided in Harry N. Scheiber, “Pacific Ocean Resources, Science and Law of the Sea: Wilbert M. Chapman and the Pacific Fisheries, 1945–70”, 13 Ecology Law Quar (1986): 381–489. Details on Chapman’s role in the policy formation process, as recounted in the paragraphs following, are documented fully in that source.

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consideration.9 In the 1937–38 season, however, several Japanese factory ships suddenly appeared in Bristol Bay to conduct fishing for salmon, allegedly as research operations—an event that inspired a firestorm of protest from both Canadian and U.S. fishing operators, and that had led to diplomatic protests from the State Department and a request for a halt to further such ‘incursions;’ the Japanese had voluntarily withdrawn, reserving their government’s right to license further expeditions in future as being entirely in accord with the accepted, customary law the high seas.10 Immediately relevant to Mr. Chapman’s thinking in the Occupation-period debate of policy in Washington was that a voluntary concession had been extracted in 1937–38, even though it had been unpalatable and reluctantly given by Tokyo. Ironically, the most important result of the diplomatic exchange in the late 1930s was that it had been the occasion for setting in motion the internal debate and process within the U.S. Government in the administration of President Franklin D. Roosevelt, and extending through the World War II years, that led in a direct line to the agreement to issue the Truman Proclamation!11 In any event, by July 1949 Chapman had come to a clear focus on the idea of some kind of agreement on a protective exclusionist zone; and, he presented to counterpart officials in Canada in July 1949 a draft treaty text that became the first step on the diplomatic road to adoption of the ‘abstention’ concept. The basic plan was for a trilateral U.S.-Canada-Japan convention under which Japan would agree to waive its rights under international law to fish within 150 miles of the Canadian or U.S. coastlines (an area in which Japanese fishing companies were deeply interested in operating), in return for which Japan would enjoy a similar abstention area out to 150 miles from its shores—a marine area in exploiting which the North Americans had not interest whatever. When shown the draft, Japanese fisheries and diplomatic officials were utterly opposed; and although still under tutelage and ultimate control of the Occupation, they displayed confidence that they could successfully resist capitulating to terms that they regarded as hostile to their industry’s interests. On the one hand, with the United States so explicitly concerned to rush the completion of a peace treaty and to obtain a security pact with Japan, as the Korean War went on, that the Japanese had a source of strength with which to bargain; on the other hand, Premier Yoshida had already agreed with the 9  Harry N. Scheiber, “Japan, The North Atlantic Triangle, and the Pacific Fisheries . . . 1930– 1953”, 6 San Diego Int’l Law Jnl. 27 (2004): 76. 10  Id., 38–51. 11  Id., 51–62.

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United States to negotiate the fisheries question on a conservationist basis, so that there was little chance of his permitting Japanese officials to stand firm against such an agreement.12

Toward the International North Pacific Fisheries Convention

Dissatisfaction with the Chapman formula came from another, perhaps unexpected, source: William Herrington, the chief Occupation officer in charge of fisheries policy and administration. He wrote to Chapman from his Tokyo office that the 150-mile barrier was an unacceptable idea, being merely “an arbitrary determination” and as such indefensible as a general principle of international law; instead, Herrington—who, like Chapman, was a distinguished fisheries management expert and scientist—proposed that the proper concept for exclusion from coastal waters in general should be that of protecting the health of fishery stocks. Hence he had concluded that the proposed treaty should provide for “mutual agreement to avoid intervention [that is, fishing by new entrants] in fully matured fisheries that are already under heavy conservation restrictions.”13 Since “heavy conservation restrictions” was a phrase applicable to the U.S. and Canadian salmon industries, the inclusion of that proviso in Herrington’s proposal was potentially of crucial importance to the negotiations. Ostensibly of universal applicability as a principle for fishery protection, in reality it was of very limited applicability outside a few fisheries in European and North American waters. This fact, as will be noted below, was of great potential advantage to Japan—a point not lost on the officialdom in Tokyo. Having introduced so explicitly the concept of “fully matured fisheries,” Herrington had succeeded in placing at the center of discussion the ‘maximum sustained yield’ standard (MSY), which had gained currency among fishery scientists and management experts: the notion that at a given point in level of exploitation of a stock, additional fishing effort would produce harm to the stock’s health rather than produce additional yield. Although it would later be

12  Scheiber, op. cit., n. 2, 177–181. 13  Letter from William Herrington to Chapman, April 26, 1950, in the Wilbert M. Chapman Papers, University of Washington Library Special Collections, Seattle.  For a perceptive analysis of Herrington’s career, see Amy Toro, “Transformation in Fisheries Management: A Study of William C. Herrington”, in K.R. Benson & F. Rehbock, ed., Oceanographic History: The Pacific and Beyond (Seattle/London: University of Washington Press, 2002), 423.

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largely discredited by bio-statisticians, the MSY idea was gaining wide acceptance in expert circles at the time Herrington introduced it.14 Taking into account his record as chief of fisheries policy for the Occupation, as well as his long prewar service in promoting and designing conservationist efforts for the American coastal fisheries, there can be no doubt of Herrington’s belief that embedding the MSY concept in the proposed fisheries treaty could serve as a model for future international agreements. He was wholly committed to MSY as a salutary alternative to the cruder approach that he derided as “fencing off pieces of the high seas” by the coastal states.15 And so in April 1951 Herrington, who now was taking up a new post succeeding Chapman as the special assistant for fisheries in the State Department, set out in a memorandum for the Department a more specific proposal— setting forth a policy that he contended would encourage scientific management, advance multilateral cooperation to avoid over-exploitation and depletion of stocks, and provide a formula for advancing progress on the fisheries issue so as to smooth the political path for the Japan Peace Treaty. He titled the memorandum “Some Tentative Ideas;” and it proved in a short time to be the solid foundation, in the internal politics of the State Department councils, for a robust introduction of the abstention concept into the larger fabric of U.S. oceans policy. Any agreement that would bind a State voluntarily forebear from fishing should begin, he contended, not by referring to exclusion but by reiterating the traditional principle of freedom of high seas fishing; but then he spelled out the exception, as to the type of fisheries subject to abstention, specified as: fisheries which fulfill all of the following conditions: (1) Fisheries which are full approaching [approaching full] exploitation: scientific evidence indicates that more intensive exploitation will not produce a substantially sustained increase in yield. (2) Fisheries under extensive scientific study: concerned countries have been and are expending substantial sums of money and effort to discover he conditions necessary for maintaining the maximum productivity of the resource. (3) Fisheries under 14  Stuart M. Kaye, “International Fisheries Management”, Journal of International Wildlife Law & Policy Vol. 4 nº 3 (2001): 43–60. For critical analyses of MSY that influenced fishery specialists’ retreat from the concept, see, e.g., the classic article by P.A. Larkin, “An Epitaph for the Concept of MSY”, 106 Trans. Am. Soc’y Fish. (1977): 1; and M.P. Sissenwine, “Is MSY an Adequate Foundation for Optimum Yield?”, 3 Fisheries (1978): 22. 15  See, inter alia, William S. Herrington, “In the Realm of Diplomacy and Fish: Some Reflections on the International Convention on High Seas Fisheries in the North Pacific and the Law of the Sea Negotiations”, 16 Ecology L. Quar. (1989): 101; Toro, op. cit., n. 14.

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scientific management: management measures are in effect which limit and/or control the activities of the fishermen of the concerned countries for the purpose of maintaining and increasing the productivity of the resource. (4) Fisheries in which its nationals have no current or recent substantial interest: the citizens of the concerned country have not participated in the fishery on a substantial scale for the past ten (?) years. (5) Fisheries non-contiguous with territorial waters: the territorial waters of the concerned country are not contiguous with the immediate waters in which the fishery is being prosecuted [a provision designed to protect the right of Canadian fishers to operate for salmon U.S. coastal waters].16 Three months later, in July 1951, Herrington’s proposal was endorsed by a State Department committee, recommending a specific list of fisheries—pared down to three later in the process, being salmon, halibut, and herring—from which Japan would be excluded if the abstention principle were accepted in negotiations. From that time forward, there was a determined push from the United States and Canada to negotiate the agreement with Japan. Formal (and intensive) negotiations were held in Tokyo, and the trilateral International North Pacific Fisheries Convention (INPFC) was signed by Japan, Canada and the United States on May 9, 1952.17 The Japanese delegation reluctantly accepted the exclusion of their salmon fleet from waters, that is, the “abstention” area, east of the 175 degree longitude line—a dividing line in the Pacific that was adopted provisionally, subject to further research on the migration patterns of Asian and North American salmon. However, the Japanese won an important advantage for its commercial fisheries elsewhere in the world: this was because the precedent established for abstention carried the provision that Herrington had so carefully crafted, permitting the coastal state to protect only stocks that were under scientific study and management and thereby deemed at maximum yield. Nowhere else in the vast areas where the Japanese fleets would enter in the next several years of rapid expansion of their operations were there management regimes in place that would permit other coastal countries—many of 16  W.C. Herrington, Some Tentative Ideas for US. High Seas Fishery Policy (proposed for purposes of discussion), (April 1951), manuscript copy in Wilbert C. Chapman Papers, University of Washington Library, Seattle. 17  Int’l Convention for the High Seas Fisheries of the North Pacific Ocean, May 9, 1952, U.S.-Canada-Japan, 4 UST 380, 205 UNTS 80. See generally Roy T. Jackson & Wm. F. Royce, Ocean Forum: An Interpretive History of the International North Pacific Fisheries Commission (Surrey: Farnham, 1986).

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them, such as Australia, deeply concerned to keep Japan’s fleets far distant from their coasts—that would permit invocation of the INPFC as precedent for demanding abstention.18 The U.S. Government’s policy on fisheries continued to be guided by Herrington’s strong hand during the ensuing decade, its central mission now being to elevate abstention to the status of a universal principle for international regimes that could be negotiated in future by other States and serve in the long run as a basis for sustainable management of high seas fish stocks. The culmination of that American diplomatic campaign came in the 1955 UN Technical Conference at Rome, at which Herrington and the U.S. delegation proposed to incorporate the abstention principle in the international convention on living resources of the sea that was scheduled for negotiation in Geneva in 1958. There was insufficient support to carry the vote, however, and both in the Rome conference and in the International Law Commission a year later, the U.S. delegation had to withdraw its proposal. It would not be introduced again by the United States, or even obtain significant mention in the debates, during the meetings that followed in the train of negotiations (that is, in Geneva in 1960, or the three conventions on law of the sea that culminated in the adoption of UNCLOS in 1982). The debate of high seas fisheries law was taking an entirely different direction, largely in the spirit of the Truman Proclamation’s concept of offshore exclusive zones rather than on the conceptual line marked out in the failed effort to enshrine abstention as a principle in the canon of international ocean law.19

Legacy of the Abstention Concept in Ocean-Governance Development

As embodied in the INPFC and in the failed U.S. diplomatic campaign that followed, the abstention principle represented a blend of potentially conflicting interests and theoretical positions. It was a hybrid concept, as it sought to integrate into a single legal matrix the objectives of exclusion and the objectives of scientific management based on the MSY concept. For example, unmasking what he termed the facade of abstention, with its sustainability pretentions, the Mexican delegate in the 1958 Geneva Convention, Luis Padilla-Nervo, declared that the policy was more accurately termed “justified exclusion of third parties”—and he contended that the justification for exclusion must be 18  Scheiber, op. cit., n. 7; Scheiber, op. cit., n. 2, 184–187. 19  Hollick, op. cit., n. 1, chapters 3–6, passim.

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legitimate. He thus argued that when nations were critically dependent economically on their coastal fisheries, they had a legitimate claim to exclude other entrants and to create large offshore zones of jurisdiction.20 The maritime nations and distant-water fleets were opposed, of course, to this or any variant that would justify exclusion; and the less developed nations coalesced, taking advantage of Cold War cleavages, to buttress further the opposition to the policy. Hence the abstention controversy faded from the continuing debates, post-1958, on reform of ocean law. A still longer retrospective view is warranted, it must be said, in assessing the failed campaign for abstention and whatever legacy it may be credited with in the subsequent developments in the law of international fisheries. In the immediate sense, the 1952 tripartite INPFC did serve an invaluable purpose: the regime it established proved durable, and with adjustments over time lasted nearly a quarter century and provided a significant level of protection to the several designated stocks of the Northeast Pacific that might otherwise have suffered from heavy overfishing and consequent long-term damage. As Mr. Herrington himself wrote 35 years later, whatever its theoretical inconsistency or deficiencies as a universal principle, the abstention concept as applied by INPFC was the conceptual basis for a holding action that was a legacy of no small importance—for it served well as an interim measure until the larger issues with regard to both EEZ jurisdiction and high seas fisheries law could be worked out. 21 The INPFC agreement came to provide an exemplary management model for allocation of resources through international agreements based on MSY; and although re-defined concepts of optimization and sustainability would challenge and crowed out MSY (or at least its nomenclature) later on, these new criteria were applied in management in a conceptual scientific-management framework that drew heavily from the INPFC model. When abstention and MSY were embedded in the North Pacific convention, at the Tokyo negotiations, the significance of the move was its legacy in placing a science-based approach squarely at the center of future regime design. This legacy needs to be recognized as a being of enduring influence, in a complex (though of course not linear) pattern of influence culminating in 1982 UNCLOS, Article 119: requiring that “best scientific evidence available” be applied by signatory 20  Quoted in Scheiber, op. cit., n. 7, 93. 21  Herrington, op. cit., n. 15. See generally J.L. Kask, “Present Arrangements for Fishery Exploitation”, in The Future of the Sea’s Resources, ed. L.M. Alexander (Kingston: The University of Rhode Island, 1968), 56; Kaye, op. cit., n. 14, 60–63; Hollick, op. cit., n. 1, 62–102.

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States in their fisheries conservation and management programs; and in the 1995 UN Fish Stocks Agreement as well, there is a specific requirement for application of “the best scientific evidence available and designed to maintain or restore stocks at levels capable of maximum sustainable yield.”22 The INPFC also established an institutional model for scientific collaboration through the creation of a strong multilateral commission structure (improving and elaborating on the notoriously inefficient version of commission operation that marked the International Whaling Commission record).23 And not least important, the diplomacy of abstention lent strong impetus to further U.S. and other international efforts at formation of regional agreements, albeit for scientific study and possible imposition of catch limits, rather than on an abstention basis. Those new agreements included a brace of tropical Pacific and North Atlantic fishery research and management conventions for which the United States took the initiative during the period of Mr. Chapman’s tenure in the government.24 The enduring historical legacy of how abstention briefly took center stage more than half a century ago is that it broke so dramatically with the heritage in international law of “freedom of fishing on the high seas.” It gave the imprimatur to a governance regime on the high seas of the three signatory nation: Japan, already restored by 1952 to a leading place among the world’s marine fishing countries; United States, with its super-power status in world politics; Canada, respected for its dedicated support of multilateral approaches to international problems. These nations were now committed to a marine regional organization that would regulate access (and, by extension, to enable as a corollary the more effective regulation of fishing intensity by the MSY standard). Consequently, what had been a high heresy in the law—the imposition of restrictions on high seas fishing—was now a policy embodied in a highprofile regional agreement involving a vast area of ocean space and (in regard to the salmon fisheries affected) one of the world’s most valuable commercial fish stocks. 22  Quotations as cited in David Freestone, “Problems of High Seas Governance”, in The World Ocean in Globalisation: Climate Change, Sustainable Fisheries, Biodiversity, Shipping, Regional Issues, ed. Davor Vidas & Peter Johan Schei (Leiden/Boston: Martinus Nijhoff, 2011), 123. 23  M.J. Peterson, “International Fisheries Management”, in Institutions for the Earth: Sources of Effective International Environmental Protection, ed. P.M. Haas et al. (Oxford: OUP, 1994), 249. 24  Herrington, op. cit., n. 15. See generally J.L. Kask, op. cit., n. 21, 56; Kaye, op. cit., n. 14, 60–63; Hollick, op. cit., n. 1, 62–102.

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By the mid-1970s, when the UN initiatives that led to the 1982 UNCLOS signing had moved to the center of the ocean law reform movement, ‘ocean enclosure’ was in one sense reaching its climax: the EEZ had already become an intractable reality, remaining only to be codified in UNCLOS. Yet in another sense, the central focus and conceptual framework of ocean law reform was already shifting radically: the objective of sustainability linked to ecosystem management as its instrumentality, further elaborated by a new emphasis on biodiversity preservation, now presented a profoundly different face and a far more complex challenge to fishery science and management. This new phase of the reforms has been exemplified by the Fish Stocks Agreement of 1995, providing the blueprint for the regional fishery management organizations (RFMOs) that have proliferated globally, and which are relied upon to lead in maintaining the health of the stocks on the high seas and to turn back the threat posed by IUU fishing activities.25 Without discounting in any way the important qualitative difference between the objectives and implementation of the abstention doctrine and those of today’s institutions, the significance of the commonality must also be recognized.26 The death knell of the old-style high seas “freedoms” had already been sounded long before the 1995 Fish Stocks Agreement, and indeed fully three decades prior to the 1982 signing of UNCLOS and its ratification of the emergent new order in which national EEZs were enclosing so huge proportion of the globe’s ocean space . That crucial break with the doctrine and practices of tradition had come decisively in 1952, when the imperatives of the abstention doctrine prevailed at the Tokyo negotiation and signature of the North Pacific International Fisheries Convention. 25  UN Conference on Straddling Fish Stocks and High Migratory Fish Stocks, UN Doc. A/50/550 (1995); also, Donald Rothwell and Tim Stephens, The International Law of the Sea 19–21, 293–319 (2010). 26  Professor Tsuru published in 2004 a prescient article to which am indebted, a paper that was originally presented at a UC Berkeley meeting of the Law of the Sea Institute, pointing out the historical continuity and the basic discontinuities in question, albeit reaching pessimistic conclusions about the prospects for strong progress in realizing through the RFMOs the heightened goals of this second-phase reform era. Yasuko Tsuru, “Rethinking the Principle of Abstention: The North Pacific and Beyond”, 28 Marine Policy (2004): 501.

Chapter 6

International Courts and Tribunals and the Development of the Law of the Sea in the Age of Codification Tullio Treves Introduction The evolution of the international law of the sea in the twentieth century is characterized by the various attempts at codifying this hitherto mainly customary branch of international law. Suffice it to recall the work conducted between World War I and World War II by the Harvard Research on International Law and by the Institute of International Law, as well as by the League of Nations with the 1930 Hague Codification Conference and its preparatory work. Most importantly, we must recall the work within the framework of the United Nations leading to the 1958 Geneva Conventions and to the United Nations Convention on the Law of the sea of 1982 (UNCLOS). The six decades between the establishment of the League of Nations and the Third UN Conference on the Law of the sea may well be labelled as the ‘age of codification’ of the law of the sea. The developments in the age of codification cannot be fully understood unless one considers the impact of the decisions of international courts and tribunals. This period is characterized by a growing reliance of States on international courts and tribunals in order to settle their disputes including those concerning the law of the sea. In the earlier decades of this period States relied on arbitral tribunals, while, with the establishment of the Permanent Court of International Justice (PCIJ) after World War I, and of the International Court of Justice (ICJ) after World War II, permanent bodies played a pre-eminent role. After the entry into force of UNCLOS, the importance of international adjudication is enhanced, as the Convention provides, as a principle, for compulsory jurisdiction concerning the interpretation and application of the UNCLOS provisions, giving a key role to arbitration tribunals and to a new permanent judicial body, the International Tribunal for the Law of the Sea (ITLOS). The contribution of international courts and tribunals is, of course, unsystematic, as it deals with disputes arising between States, which often relate to very specific situations, and require the application of particular treaties.

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Still, specific situations stimulate exploration by the parties and the judges of the scope and contents of general rules. They may also bring the judge to determine the insufficiencies of existing customary law. As regards the law of the sea, judicial decisions have had an impact on the codification process by focussing attention on new issues, proposing solutions sometimes followed and sometimes opposed by codification conventions. Once codification conventions are in place, the determination of the meaning of their provisions and their relationship with customary rules is another area in which the work of international courts and tribunals make an important contribution. This task is particularly relevant in cases involving States that are not parties to the relevant conventions. Recent cases submitted to the ICJ involving Colombia1 and Peru,2 not parties to UNCLOS, are pertinent examples. The review of selected cases that follows shows that decisions of international courts and tribunals have thrown light on various key issues in many areas of the law of the sea and proposed solutions important for the codification process or for the interpretation of its results.

The Right to Grant a Flag

An early example of a statement of a customary rule later incorporated in codification conventions is the Muscat Dhows arbitration between France and Great Britain. The 1905 award states that: “it belongs to every Sovereign to decide to whom he will accord the right to fly his flag and to prescribe the rules governing such grants”.3 This rule is the point of departure for that set out in the 1958 Convention on the High Seas (CHS) articles 4 and 5 and later in UNCLOS articles 91–92.

The Freedom of the High Seas and Criminal Jurisdiction

In the SS Lotus judgment of 1927 the PCIJ formulated as follows one the basic ideas of the law of the sea, that of the freedom of the high seas and its connection with the exclusive right of the flag State: “vessels on the high seas are subject to no authority except that of the State whose flag they fly. In virtue of the 1  Nicaragua v. Colombia, Territorial and Maritime Dispute, Judgment of 19 November 2012, www.icj-cij.org. 2  Peru v. Chile, Maritime Dispute, Judgment of 27 January 2013, www.icj-cij.org. 3  Award of 8 August 1905, www.pca-cpa.org., XI RIIA 83.

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principle of the freedom of the seas, that is to say, the absence of any territorial sovereignty upon the high seas, no State may exercise any kind of jurisdiction over foreign vessels upon them”.4 The Court specified, however, that from this it ‘by no means’ followed “that a State can never in its own territory exercise jurisdiction over acts which have occurred on board a foreign ship on the high seas”.5 The further argument made by the Court, that there was no general international law rule prohibiting Turkey from exercising jurisdiction over the French officer of a French vessel involved in a collision on the high seas with a Turkish vessel and causing a number of victims of Turkish nationality, was controversial. The International Law Commission (ILC) underscored that the judgment had been adopted with the casting vote of the President, that it had been “very strongly criticized and caused serious disquiet in international maritime circles” and that the exclusive jurisdiction of the flag and of the national State of the accused had been adopted in the International Convention for the Unification of Certain Rules relating to Penal Jurisdiction in matters of Collisions and Other Incidents of Navigation, signed at Brussels on 10 May 1952. The ILC ‘felt obliged to take a decision’ in view of the Lotus judgment. “With the object of protecting ships and their crews from the risk of penal proceedings before foreign courts”, it concurred with the 1952 Convention.6 The CHS art. 11 and UNCLOS art. 97 followed it adopting the view rejected by the PCIJ.

Innocent Passage and Passage through Straits

An example of the interaction between decisions of international courts and tribunals and the codification process is the Corfu Channel case between the United Kingdom and Albania.7 In its 1949 Judgment on the merits the ICJ stated the rules concerning the duties of the coastal State as regards innocent 4  PCIJ, Ser. A, No 10, Collection of Judgments, the case of the S.S. Lotus, France/Turkey. Judgment of 7 September 1927, 25. 5  Id. 6  YB ILC, 1956, II, 281. 7  Corfu Channel case, Judgment of April 9th, 1949, ICJ. Reports 1949, 4. A masterly analysis of this judgment and its influence on the codification work is in the Hague Lectures of the scholar to whom this paper is dedicated, with affection and admiration: Hugo Caminos, The Legal Régime of Straits in the 1982 United Nations Convention on the Law of the Sea, 205 Recueil des Cours, (1987–5), pp. 9–245, at 39–43, 51–56.

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passage through its territorial sea including the one according to which the coastal State has the duty to give appropriate publicity to dangers of navigation of which it has knowledge in the territorial sea. This rule was based on certain general and well-recognized principles, namely: elementary considerations of humanity, even more exacting in peace than in war; the principle of the freedom of maritime communication; and every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States.8 In stating these rules in the draft article that was to become article 15 of the 1958 Convention on the Territorial Sea and the Contiguous Zone (CTSCZ), the ILC explicitly stated that the article confirmed the ‘principles upheld’ by the ICJ in the Corfu Channel judgment.9 In the same judgment the Court had to deal with arguments concerning the (then and now) controversial issue of whether innocent passage through the territorial sea applies to warships. It did not find it necessary to take a stand on this question10 as, having determined that the Corfu strait was a strait used for international navigation, it considered sufficient to state that it was generally recognized and in accordance with international custom that States in time of peace have a right to send their warships through straits used for international navigation between two parts of the high seas without the previous authorization of a coastal State, provided that the passage is innocent.11 This formulation was followed in the ILC’s draft articles submitted to the Geneva Conference (art. 17, para. 4), while the corresponding rule of the CTSCZ (art. 16, para. 4) added the controversial mention of straits connecting one portion of the high seas with a territorial sea. While UNCLOS adopts a more complex regime for straits, a special treatment for those connecting the high seas with a territorial sea has been retained in article 43, para. 1 a.

8  ICJ Reports (1949): 22. 9  YB ILC (1956), II: 273. 10   ICJ Reports (1949): 30. 11  ICJ Reports (1949): 28.

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Straight Baselines

An unquestionable case in which a judgment formulated the law and was followed in codification conventions is that handed out by the ICJ in 1951 in the Anglo-Norwegian Fisheries case.12 The Judgment states that “for the purpose of measuring the breadth of the territorial sea, it is the low-water mark as opposed to the high-water mark, or the mean between the two tides, which has generally been adopted in the practice of States”.13 Confronted with the existence of deep indentations and the fringe of islands constituting the Norwegian skjaergaard, the Court holds that, as the latter “constitutes a whole with the mainland, it is the outer line of the ‘skjærgaard’ which must be taken into account in delimiting the belt of Norwegian territorial waters”. The low water line cannot be applied in a case as the one under consideration: when “a coast is deeply indented and cut into . . . or where it is bordered by an archipelago such as the ‘skjærgaard’ . . ., the base-line becomes independent of the low-water mark, and can only be determined by means of a geometrical construction”. Such geometrical approach brings to the method of straight baselines.14 As “the delimitation of sea areas has always an international aspect [and] it cannot be dependent merely upon the will of the coastal State as expressed in its municipal law”,15 the judgment states ‘criteria’ to guide courts in assessing the compatibility of straight baselines with international law. Firstly, “the drawing of base-lines must not depart to any appreciable extent from the general direction of the coast”. Secondly, the lines must be “sufficiently closely linked to the land domain to be subject to the regime of interna1 waters”. Moreover, ‘one consideration not to be overlooked’ concerns the existence “of certain economic interests peculiar to a region, the reality and importance of which are clearly evidenced by a long usage”.16 The impact of this judgment on the codification process and on the clarification of customary law is beyond doubt. The ILC, reporting in 1956 to the UN General Assembly stated that it ‘interpreted the Court’s judgement . . . as expressing the law in force’ and that ‘it accordingly drafted the article on the basis of this judgment’.17 The language of the Court is repeated in article 5

12  Fisheries case, Judgment of December 18th, I95I, ICJ Reports (1951): 116. 13  ICJ Reports (1951): 128. 14  ICJ Reports (1951): 128–129. 15  ICJ Reports (1951): 132. 16  ICJ Reports (1951): 133. 17  YB ILC (1956): II, 267.

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of the ILC draft and with some additions in articles 4 of the CTSCZ and 7 of UNCLOS. Bays There are cases in which international courts and tribunals found that customary law failed to regulate a question with sufficient precision and opened the way for the codification process to provide such precision. The criteria for defining the required shape for a bay to be enclosed in internal waters and the maximum length of the closing line is an example. So the 1910 arbitral award in the US/UK case regarding North Atlantic Coast Fisheries, while indicating in general terms the conditions for the control of a bay, stated that: “no principle of international law recognizes any specified relation between the concavity of the bay and the requirements for control by the territorial sovereignty”.18 In the above quoted Fisheries Jurisdiction judgment of 1951, the ICJ stated that: although the ten-mile rule has been adopted by certain States both in their national law and in their treaties and conventions, and although certain arbitral decisions have applied it as between these States, other States have adopted a different limit. Consequently, the ten-mile rule has not acquired the authority of a general rule of international law.19 In article 7 of its 1956 draft the ILC proposed precise rules on both aspects and underlined that: “In adopting this provision, the Commission repaired the omission to which attention had already been drawn by The Hague Codification Conference of 1930 and which the International Court of Justice again pointed out in its judgement in the Fisheries Case”.20 The article was repeated with some additions in article 7 of the CTSCZ and in article 10 of UNCLOS, both provisions substituting 24 miles for the 15 miles proposed by the ILC. It seems noteworthy that later, in its 1992 judgment in the Land and Maritime Frontier case, the ICJ stated that these provisions (including the precise indication of the 24 mile maximum width of the mouth of the bay) “might be found to express general customary law”.21 18  The North Atlantic Fisheries Case, Great Britain v. United States of America, award of 7 September 1910, XI RIIA 167, www.pca-cpa.org (24). 19  ICJ Reports (1951): 131. 20  YB ILC (1956) II: 269. 21   Land, Islands and Maritime Frontier Dispute (El Salvador/Honduras, Nicaragua intervening), Judgment of 11 September 1992, ICJ Reports (1992): 351, para. 383.

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Fishing Zones and the Exclusive Economic Zone

The 1974 ICJ judgments on the Fisheries Jurisdiction cases, between United Kingdom and Iceland and between the Federal Republic of Germany and Iceland, is a further example of how judicial decisions become intertwined with codification processes.22 The ICJ went beyond what was decided at Geneva, but did not dare to take fully into account the contemporaneous developments brought in full view by the beginning of the Third UN Conference on the Law of the Sea. While acknowledging that the Geneva Conferences on the Law of the Sea of 1958 and of 1960 had failed to adopt a decision on the breath of the territorial sea and on fishery zones, the Court observed that, after the 1960 Conference: ‘the law evolved through the practice of States on the basis of the debates and near-agreements at the Conference’. And added: Two concepts have crystallized as customary law in recent years arising out of the general consensus revealed at that Conference. The first is the concept of the fishery zone, the area in which a State may claim exclusive fishery jurisdiction independently of its territorial sea; the extension of that fishery zone up to a 12-mile limit from the baselines appears now to be generally accepted. The second is the concept of preferential rights of fishing in adjacent waters in favour of the coastal State in a situation of special dependence on its coastal fisheries, this preference operating in regard to other States concerned in the exploitation of the same fisheries.23 The Court decided the disputes brought by the United Kingdom and the Federal Republic of Germany against Iceland on the basis of these two concepts which, in its view, were incorporated in new rules of customary law. It acknowledged that at the Third UN Conference on the Law of the Sea (started during the ICJ proceedings) many proposals had been made for an extension of fishery limits beyond 12 miles. These were, however, in the view of the Court, mere aspirations “not expressing principles of existing law”. The Court could not rely on them as this would mean deciding de lege ferenda ‘or anticipate the law before the legislator has laid it down’.24 It seems difficult to deny that—as stated in a powerful separate opinion of six judges—the numerous proposals 22  Fisheries Jurisdiction (United Kingdom v. Iceland) Merits, Judgment of 25 July 1974, ICJ Reports (1974): 3; Fisheries Jurisdiction (Federal Republic of Germany v. Iceland) Merits, Judgment of 25 July 1974, ICJ Reports (1974): 175. 23  ICJ Reports (1974): para. 52 at 23. 24  ICJ Reports (1974): para. 53 at 23–24.

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put forward at the Third UN Conference for the adoption of extended fisheries zones or exclusive economic zones should have had an impact. The six judges state in particular that: The least that can be said . . . is that such declarations and statements and the written proposals submitted by representatives of States are of significance to determine the views of those States as to the law on fisheries jurisdiction and their opinio iuris on a subject regulated by customary law. A number of pronouncements of States in the aforesaid circumstances reveals that while the fundamental principle of freedom of fishing in the high seas is not challenged as such, a large number of coastal States contest or deny that such a principle applies automatically and without exception to adjacent waters in all parts of the world as soon as the 12-mile limit is reached.25 About a decade later, in 1985, after the opening to signature, but well before entry into force, of UNCLOS, in which, as is well known the notion of the exclusive economic zone of 200 miles, including exclusive rights on fisheries, was adopted, the ICJ made obsolete its 1974 position. In the judgment on the Case concerning the continental shelf between Libya and Malta, it adopted the view that it was “incontestable that . . . the institution of the exclusive economic zone . . . is shown by the practice of States to have become a part of customary law”.26

The Continental Shelf and Delimitation of Maritime Areas

In assessing the role played by decisions of international courts and tribunals in the development of the law of the sea in the aftermath of the Geneva conventions and beyond, the 1969 ICJ judgments on the North Sea Continental Shelf Cases are particularly relevant.27 25  Joint separate opinion of Judges Foster, Bengzon, Jiménez de Aréchaga, Nagendra Singh and Ruda, ICJ Reports (1974): 46, at para. 13. 26  Continental shelf (Libyan Arab Jamahria/Malta), judgment of 31 June 1985, ICJ Reports (1985): 13, para. 34. 27   North Sea Continental Shelf, Judgment of 20 February 1969, (United Kingdom/ The Netherlands, United Kingdom/Denmark and Federal Republic of Germany/The Netherlands, Federal Republic of Germany/ Denmark), ICJ Reports (1969): 3.

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Firstly, arguing inter alia from the fact that no reservations are allowed to articles 1 to 3 of the CCS, the Court states that these articles were in 1958 ‘regarded as reflecting, or crystallizing, received or at least emergent rules of customary international law’.28 The judgment lists the issues covered by these articles, including ‘the seaward extent of the continental shelf’. The rule set out in the CCS on this issue was soon to appear as inadequate and was replaced by the different one set out in article 76 of UNCLOS. In the 2012 judgment in the Nicaragua v. Colombia case the ICJ held that the general rule of article 76, para. 1, reflects customary law, while it left open the question whether this applies also to remaining paragraphs of the article.29 This last aspect is discussed in scholarly writings.30 Secondly, the Court dealt in detail with the question whether the ‘equidistance-special circumstances’ rule set out in article 6 of the CCS for the delimitation of the continental shelf between States whose coasts are adjacent or one in front of the other corresponded to customary law. As it is well known, the answer was in the negative, and the Court stated that the “delimitation has to be effected by agreement in accordance with equitable principles, and taking into account all the relevant circumstances”.31 The 1969 judgment was influential on the subsequent judgments of the Court on the delimitation of maritime areas and on the negotiations at the Third UN Conference on the Law of the Sea. In particular, the judgment 28  ICJ Reports (1969), para. 63. 29  Territorial and maritime dispute, Judgment of 19 November 2012, www.icj-cij.org, para. 118. In paras 116 and 117 it emerges that while both parties to the dispute were of the opinion that article 76 para. 1 corresponds to customary law, Nicaragua held that this applies also to the following paragraphs up to 7, while Colombia stated that there were no elements of practice to support this view as regards paras 4 to 9. 30  Recently, J. Crawford, “Chance, Order, Change, The Course of International Law, General Course of International Law”, Recueil des Cours, vol. 365 (The Hague: Brill, 2013), 9–390, at 103 argues that article 76 as a whole corresponds to customary law. In 1990, when UNCLOS was not yet in force, I examined the question in light of the then existing practice (in which certain states supported their claims for extending the continental shelf beyond 200 miles by reference to UNCLOS) coming to the conclusion that only paragraph 1 of article 76 corresponded to customary law, in particular because the role recognized to the Commission on the Limits of the Continental Shelf could not be included in a customary rule, while admitting that certain elements of practice showed a trend to go beyond these conclusions: T. Treves, “Codification du droit international et pratique des Etats dans le droit de la mer”, Recueil des cours, vol. 223 (The Hague: Brill, 1990), 9–302, at pp. 89–103. 31  ICJ Reports (1969), 101 C1.

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was the basis for the decision not to mention equidistance in articles 74 and 83 of UNCLOS dealing with delimitation of the exclusive economic zone and of the continental shelf. In fact, these articles only refer to the objective of reaching an equitable result applying unspecified rules of international law. They thus open the door to unwritten law to be determined by judges and arbitrators. Indeed, the importance, in the application of articles 74 and 83, of customary law as emerging from decisions of international courts and tribunals is stated in the 2006 arbitral award in the Barbados v. Trinidad and Tobago case,32 and in the 2012 ITLOS judgment in the Bangladesh v. Myanmar case.33 The ICJ has stated that articles 74 and 83 correspond to customary international law, especially in the 2012 judgment in the ICJ case Nicaragua v. Colombia.34 Such customary status applies especially to the methodology of delimitation, where jurisprudence has adopted an ‘equitable principlesrelevant circumstances’ rule to be implemented in three steps. As the first step consists in drawing a provisional equidistance line, to be corrected in light of relevant circumstances to reach an equitable result, the post-UNCLOS jurisprudence has come to recognize that the ‘equitable principles-relevant circumstances’ rule it now adopts is ‘very similar’ to the Geneva ‘equidistancespecial circumstances’ rule.35 An early indication in a similar sense is in the 1977 Anglo French Continental Shelf arbitral award. The award states that the role of ‘special circumstances’ condition in Article 6 [of the Geneva Continental Shelf Convention] is to ensure an equitable delimitation; and the combined ‘equidistance-special circumstances’ rule, in effect, gives particular expression to a general norm that, failing agreement, the boundary between States abutting on the same continental shelf is to be determined on equitable principles.36 32  Arbitration between Barbados and the Republic of Trinidad and Tobago, award of 11 April 2006, UN RIAA, XXVII, 147, para. 222. 33  Delimitation of the Maritime Boundary Between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh / Myanmar), judgment of 14 March 2012, in ITLOS Reports (2012): 4, para. 183. 34   Case Concerning the Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgement of 19 December 2012, para. 139 . 35  Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea Intervening), Judgment of 10 October 2002, ICJ Reports, 2002, 303, para. 288. See T. Treves, “Las controversias de delimitación de áreas marítimas”, in Comité jurídico interamericano, Cursos de Derecho Internacional, vol. 39 (2012), 197–227, at 220–224. 36  Decision of 30 June 1977, XVIII RIIA, 3, para. 70 at 45.

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The ‘Genuine Link’

One of the most controversial provisions set out in law of the sea codification conventions is the one providing that, while States are entitled to fix the conditions for granting their nationality to a ship, “there must exist a genuine link between the State and the ship” (CHS, art. 5, para. 1, UNCLOS, art. 91, para. 1). The discussion concerns inter alia whether this requirement is such that its absence entitles another State to refuse to recognize the nationality of the ship. In its Advisory Opinion of 8 June 1960 on the Constitution of the Maritime Safety Committee of the International Maritime Consultative Organization, the ICJ avoided taking a position. It argued that it had reached the conclusion to rely on tonnage to determine which were the ‘largest ship-owning nations’ interpreting the IMCO Constitution, without need to examine the question of the genuine link as set out in the not yet in force CHS.37 Almost forty years later, in its 1999 Judgment in the M/V Saiga Nr. 2 case, ITLOS had the opportunity to consider the subject, in light of article 91, para. 1, of UNCLOS, and gave a negative answer to the question of whether absence of the genuine link entitles other States to refuse recognition of the nationality of a ship. The Tribunal argued especially on the basis of the preparatory work in the ILC and in the First and Third UN Conferences on the Law of the Sea. The Tribunal recalled that: the International Law Commission, in article 29 of the Draft Articles on the Law of the Sea adopted by it in 1956, proposed the concept of a “genuine link” as a criterion not only for the attribution of nationality to a ship but also for the recognition by other States of such nationality. After providing that “[s]hips have the nationality of the State whose flag they are entitled to fly”, the draft article continued: “Nevertheless, for purposes of recognition of the national character of the ship by other States, there must exist a genuine link between the State and the ship”. This sentence was not included in article 5, paragraph 1, of the Convention on the High Seas of 29 April 1958 (hereinafter “the 1958 Convention”), which reads, in part, as follows: “There must exist a genuine link between the State and the ship; in particular, the State must effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.”

37  ICJ Advisory Opinion of 8 June 1960, ICJ Reports 1960, 150 at 171.

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Thus, while the obligation regarding a genuine link was maintained in the 1958 Convention, the proposal that the existence of a genuine link should be a basis for the recognition of nationality was not adopted.38 Having observed that UNCLOS ‘follows the approach’ of the CHS,39 ITLOS concluded that: the purpose of the provisions of the Convention on the need for a genuine link between a ship and its flag State is to secure more effective implementation of the duties of the flag State, and not to establish criteria by reference to which the validity of the registration of ships in a flag State may be challenged by other States.40 Conclusion In the international law of the sea, the relationship between codification efforts and judicial and arbitral decisions is one of reciprocal influences. In most cases, codification has followed solutions adopted by international judges and arbitrators. In a few cases, however, disputes submitted to adjudication have focussed the attention of States and experts engaged in codification efforts on certain questions, but the results of such efforts have not followed the judicial solutions, or have gone beyond such solutions. In other cases, the codification process has given to the adjudicating body important indications concerning the interpretation of a codification convention. In assessing the question of whether provisions set out in codification conventions, and presently especially UNCLOS, correspond to customary law, the consideration of judicial decisions on the subject considered seem particularly relevant, as is, for international judges and arbitrators, the consideration of codification conventions.

38  Saint Vincent and the Grenadines v. Guinea, Judgment of 1st July 1999, ITLOS Reports (1999): 10 at para. 80. 39  Id. at para. 81. 40  Id., para. 83.

Chapter 7

The Freedom of Navigation: Modern Challenges Seen from a Historical Perspective Rüdiger Wolfrum Introduction Article 87 of the UN Convention on the Law of the Sea (Convention) refers, amongst others, to the freedom of navigation. The origin of the freedom of navigation, being one of the traditional freedoms, besides the freedom of fishing, dates back to the book of Hugo Grotius, Mare Liberum, sive de jure quod Batavis competit ad Indicana commercia dissertation.1 This principle constitutes one of the pillars of the law of the sea and stands at the beginning of modern international law. It is worth remembering that John Selden argued against the freedom of the sea as a principle in his treatise de mare clausum but, in fact, he meant the freedom of fishing also proclaimed by Hugo Grotius rather than the freedom of navigation. Although this freedom’s existence is well established and its status is not generally put into question, recent practice indicates that there are numerous modern challenges2 which may result in limitations of that freedom de iure or de facto. It should be recalled that at the Third UN Conference on the Law of the Sea a delegate stated by paraphrasing Shakespeare’s Julius Cesar: “I have come to bury Grotius not to praise him.”3 Therefore some of the limits introduced should not come unexpectedly. The Convention has established the basis to do so. One of the most important provisions in this regard is article 59 of the Convention, although it has not yet been tested in the jurisprudence of international courts and tribunals. Some of these limits are well known such as the ones taken with the view to protect the marine 1  This treatise, the twelfth chapter of the advisory opinion for the Dutch East India Company, De Jure Praedae Commentarius, which was published only in 1868. This Chapter on the freedom of the sea was published as pocket-sized quarto anonymously in 1609. 2  See on this, for example, Richard Caddell & Thomas Rhidian, eds., Shipping, Law and the Marine Environment in the 21st Century (London: Law text Publishing, 2013). 3  Quoted in B. Oxman, “The Third United Nations Conference on the Law of the Sea: The Eighth Session” (1979), AJIL 74 (1980): 39.

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environment. The basis for them is to be found primarily in Part XII of the Convention. Others serve more specific purposes such as fighting terrorism, the proliferation of weapons of mass destruction, or they are directed to control bunkering. In particular coastal States attempt to strengthen their jurisdiction in the exclusive economic zones. This expansionist trend concerning the exclusive economic zones is motivated by the general desire to enhance the competences and jurisdictions granted to the coastal States, or even to add new competences not granted to them, and to restrict the freedoms granted to third States. One of the weaknesses of the freedom of navigation is that it is rarely defined positively but negatively, namely via the limits imposed by international law or national law. The following contribution will make an attempt to shed some light on the content of the freedom of navigation without claiming comprehensiveness. The starting point shall be Hugo Grotius who qualified the freedom of navigation as a ‘natural right’ of all States. He also gave some indication as to its scope. In particular of interest are the reasons he gives for upholding the freedom of navigation.

Reasons Given by Hugo Grotius for the Defence of the Freedom of Navigation

Hugo Grotius put forward several arguments to defend the freedom of navigation which are worth reiterating. His starting point was that the sovereignty over the land is different from any sovereignty over the sea. He held that the sea is fluid and ever-changing and thus cannot be possessed. A glimpse of that view is still to be detected in the wording of article 2 of the Convention which—taken literally—distinguishes between the sovereignty over the territory, including the internal waters (this sovereignty is taken for granted) and the sovereignty over the territorial sea (which is based upon the Convention). Amongst others he stated that the sea was the fundamental avenue for communication and co-operation among States and therefore such avenue should be free and not controlled by one State4—at his times Spain and Portugal. He 4  Mare Liberum, Chapter I, “Hoc igitur qui tolunt, illam laudatissimam tollunt humani generis societatem, tolunt mutuas benefaciendi occasiones, naturam denique ipsam violant . . . none significant satis concessum à natura cunctis gentibusad cunctas adytum?”, in Hugo Grotius, The Free Sea, trans. Richard Hakluyt, ed. David Armitage (Indianapolis: Liberty Fund, 2004), p. 11: They, therefore, that take away this, take away the most laudable society of mankind; they

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further argued that the resources of the sea cannot be exhausted neither by the navigation nor by fishing (given today’s knowledge it is evident that Grotius erred as far as fishing is concerned). On that basis he argued that a resource or an area which could be used by all without being deteriorated or depleted must not be monopolized by one State but should be open to all.5 Finally he argued that a State could only claim an area which it was able to administer and control effectively, emphasizing that no State could control the sea permanently and effectively. This latter argument may not have the same convincing force today it had in the beginning of the 17th century. In his Defense of Chapter V of the Mare Liberum6 against William Welwood, Grotius even more firmly took the position that land and sea were incommensurable because the former can be appropriated whereas the latter cannot.7

The Freedom of Navigation (in its various forms) under the UN Convention on the Law of the Sea

The UN Convention on the Law of the Sea makes ample reference to the freedom of navigation such as in article 36 (freedom of navigation in straits used for international navigation), article 38 (transit passage), article 58 (freedom of navigation in the exclusive economic zone), article 78, article 87 (high seas). In this context the right to innocent passage as specified in articles 17 to 26 (in the territorial sea) and 52 (archipelagic waters) is to be mentioned, too.

take away the mutual occasions of doing good and, to conclude, violate nature herself. . . . do they not sufficiently signify that nature hath granted a passage from all nations unto all?” See also H. Grotius, De Jure Praedae Commentaries: A Translation of the Original Manuscript of 1604, vol. 1, ed. G.L. Williams (Oxford: Oxford University Press, 1950). 5  Mare Liberum, Chapter V. “Alterum vero, eas res omnes, quae ita a natura comparatae sunt, ut aliquo utente nihilominus aliis quibusvis ad usum promiscue sufficiant, eius hodieque condicionis esse, et perpetuo esse debere cuius fuerant cum primum a natura proditae sunt.” In the translation of Richard Hakluyt, note 4: The other is that all those things which are so rained by nature that anyone using them they may nevertheless suffice others whomsoever for the common use are at this day (and perpetually ought to be) of the same condition whereof they were when nature first discovered them. 6  Defensio capitis quinti Maris Liberi oppugnati a Guuilielmo Welwodo, translated and published in David Armitage, The Free Sea, 2004, p. 77 et seq. 7  David Armitage, Introduction to The Free Sea, Hugo Grotius, The Free Sea, trans. Richard Hakluyt, ed. David Armitage (Indianapolis: Liberty Fund, 2004), p. xix.

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However, none of these provisions provide what freedom of navigation entails.8 Does it only mean to move by ship from point A to B? If the answer is affirmative it would render the freedom of navigation a freedom for sport boats and military vessels. It should not be forgotten that from its beginning— Hugo Grotius made this quite clear—the freedom of navigation was associated with commercial activities, the transport of goods, the trading in goods etc. This was confirmed by the PCIJ in the Oscar Chinn case although it dealt with the freedom of navigation on a river. The PCIJ stated: According to the conception universally accepted, the freedom of navigation . . . comprises freedom of movement for vessels, freedom to enter ports and to make use of plant and docks, to load and unload goods and to transport goods and passengers.9 The reason for this lack of definition may rest in the consideration that the freedom of the high sea is defined negatively.10 Freedom of the sea, and thus, freedom of navigation, means the freedom of vessels from all outside interference. The main guarantee of this freedom is that only the flag State may regulate activities of vessels under its flag at the high sea and take appropriate enforcement action; in foreign exclusive economic zones the legislative jurisdiction is divided between the one of the flag State and for some issues of the relevant coastal State. As any other freedom the freedom of navigation is not without limits. Such limits may serve different purposes, the interest of others in the enjoyment of navigation, or in other freedoms, the interest of the international community in the protection of the sea and the interests of coastal States in the enjoyment of their rights. It is impossible to go through all the challenges or limitations the freedom of navigation is facing. This presentation will concentrate on three, namely environmental considerations, attempts to strengthen the security at sea, for example against the threat of terrorism and 8  Even the ILC Commentary on Articles concerning the Law of the Sea does not contain such clarification, see commentary to article 27, ILC Yearbook, 1956, vol. II, p. 278. Article 19 having the headline ‘Meaning of innocent passage’ speaks about the limits to passage—or which activities undertaken during passage renders the latter to be not innocent and therefore cannot be used for defining the notion of ‘navigation’. 9  Oscar Chinn, Judgment, 1934, P.I.C.J, Series A/B, No. 63, p. 83. 10  See most clearly in this respect the Memorandum présenté par le Secrétariat, Droit de la mer—le régime de la haute mer, ILC Yearbook, 1950 II, p. 67.

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the proliferation of weapons of mass destruction and the limits concerning certain economic activities such as bunkering. What makes the ensuing limitations or attempted restrictions for the freedom of navigation problematic is that they are undertaken multilaterally by involving competent international organizations as well as unilaterally. Whereas limitations developed by ­international organizations can be presumed to have balanced the various interests this is not necessarily the case for unilaterally undertaken measures. Apart from that such limiting measures are not easy to harmonize. Their cumulative impact on the freedom of navigation/right to innocent passage may become, from the point of view of the legal framework established by the Convention, a matter of concern.

The Distribution of Jurisdictional Powers Concerning Navigation under the UN Convention on the Law of the Sea

The Distribution of Juridical Competences in General The Convention establishes a legal regime which is based on zones. Coastal States competences decrease, generally speaking, with the distance from the coast and, it is to be added, they are less embracing concerning navigation compared to the exploration or exploitation of the natural resources of the sea. Additionally to this territorial or rather zonal based approach coastal States may exercise jurisdiction over foreign merchant ships on the basis of international agreements or/and established international standards and practices. Article 218 of the Convention, for example, accords to port States jurisdictional power over vessels which are not rooted in the territorial principle. Coastal States have jurisdiction to adopt laws and regulations relating to navigational safety and ship-source pollution by foreign ships in their exclusive economic zone (legislative jurisdiction)—where vessels enjoy the freedom of navigation—and they have corresponding enforcement jurisdiction. The jurisdictional competences—legislative as well as enforcement jurisdiction—of States are broader concerning their territorial sea and their archipelagic waters although ships under a foreign flag enjoy the right of innocent passage in these maritime areas. Special regimes apply, though, for major international shipping routes through straits used for international navigation even if such straits are within the territorial sea of the coastal State. The transit passage regime implies that navigation is not governed by the regime concerning innocent passage but by a particular regime more liberal concerning navigation. The transit passage

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regime has been described to range between the freedom of navigation and innocent passage.11 Under the transit passage regime, freedom of navigation and the right of over-flight exists for vessels and aircraft, operating in their normal mode. While the coastal States jurisdictional powers are limited by the Convention on the Law of the Sea they may still impose controls on navigation.

Competences to Enhance the Safety of Navigation and for the Protection of the Marine Environment Competences of the Coastal States Article 21 of the Convention tries to establish a delicate balance between the interests of international navigation and the right of coastal States to regulate the passage of foreign ships in the territorial sea. The approach is twofold. Some actions are qualified as not being protected under the notion of innocent passage in article 19 para. 2 of the Convention. But additionally, a coastal State may regulate innocent passage pursuing different objectives under article 21 para. 1 of the Convention. Paragraphs 1a and 1b refer to navigation, maritime traffic etc, while paragraph 1c relates to both, maintenance of communication systems and the preservation of the marine environment. Paragraphs 1g and h refer to article 245 of the Convention which accords to coastal States an exclusive right to regulate, authorize and conduct marine scientific research in its territories and to custom, fiscal, immigration or sanitary matters. To put it into a nutshell, article 19 of the Convention excludes certain actions from the protection under the notion of innocent passage, whereas article 21 of the Convention opens the possibility for coastal States to limit the freedom of navigation. However, these limits are limited themselves. According to article 21 para. 3 of the Convention, national laws and regulations shall not affect design, construction, manning or equipment of foreign ships unless they give effect to generally accepted international rules and standards. This is a significant restriction concerning the prescriptive power of coastal States. It reflects a basic concept incorporated throughout the Convention, namely to protect the integrity of global maritime navigation and to minimize interference with the coastal State jurisdiction. The practice of some coastal States does not honor this essential principle. Article 42 of the Convention limits the legislative jurisdiction of coastal States bordering international straits in relation to transit passage. Such laws 11  E.J. Molenaar, Coastal State Jurisdiction over Vessel Source Pollution (1998), 287.

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may only be taken in respect of the safety of navigation and maritime traffic and the prevention and control of pollution.

Measures which may be Taken on the Basis of Specific International Instruments Four conventions contain provisions that allow for the adoption of rules and standards by coastal States applicable to foreign merchant ships. These are the Convention on the Collisions at Sea,12 which provides for the possibility of traffic separation schemes, the International Convention for the Prevention of Pollution of the Sea by Ships 1973/78 (MARPOL),13 the International Convention for the Safety of Life at Sea (SOLAS)14 and the Basel Convention on the Control of Transboundary Movements of Hazardous Movements and their Disposal.15 In particular, the rules prepared by the IMO under MARPOL have now reached a new quality. So far, the objective to protect the marine environment against pollution was achieved by prohibiting certain activities on ships, such as the introduction of waste into the water. The adoption of the mandatory technical and operational energy efficiency measures adopted by IMO in 201116 meant to reduce the amount of greenhouse gas emissions from ships. They force the shipping industry to change their fuel and thus significantly interfere with the freedom of navigation. Apart from that the objective is to protect the world climate whereas the protection of the marine environment is an indirect 12  Convention on the International Regulation for Collisions at Sea, 1972. This Convention was designed to update and replace the Collision Regulations of 1960, particularly with regard to Traffic Separation Schemes  following the first of these, introduced in the Strait of Dover in 1967. 13  International Convention for the Prevention of Pollution from Ships with Annexes (Annex I, Regulation for the Prevention of Pollution by Oil; Annex II, Regulation for the Control of Pollution from Noxious Liquid Substances in Bulk; Annex III, Prevention of Pollution by Hazardous Substances Carried by Sea in Packaged Form; Annex IV, Prevention of Pollution by Sewage from Ships; Annex V, Prevention of Pollution by Garbage from Ships; Annex VI Prevention of Air Pollution from Ships. 14  The SOLAS Convention in its successive forms is the most important of all international treaties concerning the safety of merchant ships. The first version was adopted in 1914, in response to the Titanic disaster, the second in 1929, the third in 1948, and the fourth in 1960. The present, the 1974 version, has been updated and amended on numerous occasions. 15  Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and Their Disposal, 1989. 16  These measures were included in Annex VI.

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one. MARPOL obliges coastal States to enforce the ensuing obligations by prohibiting infractions and by punishing offenders. The system works on two levels. The rules are developed and set on the international level whereas the enforcement rests with States, the flag States, the coastal States and the port States. As can be seen from articles 217, 218 and 220 of the Convention, States enjoy a certain amount of discretion in respect of their national legislation enacting the internationally adopted standards. This again is relevant for the enforcement. However, sanctions issued by coastal States or port States against violations may not amount to hampering innocent passage unless otherwise permitted under international law.17 Ships’ routing is laid down in Regulations V/10 of the Annex to the SOLAS Convention 1974 which was incorporated in 1994. From the stipulation can be taken that, on the one hand, the regulation tries to underscore the role of IMO in the establishment of mandatory ships’ routing and on the other it recognizes, though indirectly, that coastal States alone may establish such routing system as well. This is all the more relevant when the systems are located within the territorial sea. States are not under an obligation to submit such systems in the territorial sea to IMO for adoption but they may do so. This is in line with article 22 of the Convention. Regulation 11 of the Annex to the SOLAS Convention 1974 focuses on the subject of mandatory ship reporting systems. However, coastal States are also entitled to establish unilaterally such a reporting system in the territorial sea on the condition that the operation does not result in undue interference with innocent passage of foreign ships. The Basel Convention regulates transboundary movements of hazardous wastes and their disposal at the international level. Apart from that coastal States are entitled to introduce appropriate national legislation to prevent and punish illegal traffic in waste. The equivalent is the Bamoko Convention.18 In the context of the Basel Convention it was discussed whether vessels, which are meant to be dismantled and which are proceeding to the place where the dismantling is going to take place, are to be considered as waste (and not as vessels any more) and thus should be seen as a prohibited movement of hazardous waste. This issue is now being approached under the Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships adopted in May 2009. The Convention elaborates a control system for ship recycling obligating flag States and ship owners, recycling States and 17  Art. 24, para. 1 of the Convention. 18  Bamoko Convention on the Ban of the Import into Africa and the Control of Trans­ boundary Movement of Hazardous Waste within Africa, 1991.

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recycling facilities. Still vessels earmarked for dismantling are considered to come under the scope of the Basel Convention. From the point of view of the Convention this is problematic as long as these vessels move on their own power. Measures Initiated by IMO Apart from measures provided for in the international conventions, certain restrictions upon the freedom of navigation may be based upon measures taken by IMO. IMO may designate Particularly Sensitive Sea Areas, a power provided for through Annex 2 to IMO Resolution A.927(22). These are areas which need special protection through action by IMO because of their significance for recognized ecological, socio-economic or scientific reasons and because it may be vulnerable to damage by international shipping activities. The legal basis of such power of IMO may be sought in article 192 and 194 of the Convention on the Law of the Sea as well as in article 211 para. 1 of the Convention. It is to be noted that the designation of a Particularly Sensitive Sea Area as such has no binding effect. However, the PSSA Guidelines require the adoption by IMO of ‘associated protective measures’. The type of measure that may be adopted is left to IMO. Up to date IMO has prescribed ships routing measures and ships reporting systems under SOLAS, Special Areas under MARPOL and a range of other measures adopted through IMO resolutions. To the extent such measures are being based upon existing international agreements the resulting infringements upon freedom of navigation may be considered justified.19 But there is also the view being taken that whatever is being decided by IMO is to be considered to conform to the Convention on the Law of the Sea.20 In this context the introduction of a mandatory pilotage system has become a controversial issue.21 Australia and Papua New Guinea made the attempt to 19  See Julian P. Roberts, Ben M. Tsamenyi, Tim Workman, & Lindy Johnson, “The Western European PSSA Proposal: A ‘Politically Sensitive Sea Area’”, Faculty of Law (2005): 431. Available at: http://works.bepress.com/ben_tsamenyi/32, 431; K.M. Gjerde, “Protecting particularly sensitive sea areas from shipping: a review of IMO’s new PSSA guidelines”. Proceedings of the Expert Workshop held at the International Academy for Nature Conservation, Isle of Vilm, ed. H. Thiel & J.A. Koslow (2001): 123–132. 20  See DOALOS LEG 87/16/1WP.3. 21  See for further details concerning the Torres Strait: Donald R Rothwell., “Compulsory Pilotage and the Law of the Sea: Lessons learned from the Torres Strait”, ANU College of Law Research Paper No. 12 (2012); Robert C. Beckman “PSSAs and Transit Passage— Australia’s Pilotage System in the Torres Strait Challenges IMO and UNCLOS”, ODILA, nº 38, 4 (2007): 337.

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have a mandatory pilotage system introduced in the Torres Strait in connection with the designation of that strait as a Particularly Sensitive Sea Area by IMO. The issues seems to have been intensively debated within IMO and one may safely say that the majority of States seems to have been reluctant to concede to IMO the right to introduce a mandatory pilotage system in an international strait. This issue is open for further legal reasoning.

Measures for the Protection of the Security at Sea

Measures Taken on the Basis of Multilateral Agreements The 2005 Protocol to the Rome Convention22 is one of those recent legal instruments which may, in the future, provide for a basis to limit the freedom of navigation.23 The Protocol introduces a new article 8 b is into the Rome Convention concerning the procedures to be followed if a State Party desires to board a ship flying the flag of another State Party outside the territorial water of any State, when the requesting Party has reasonable grounds to suspect that the ship or a person on board the ship is, has been, or is about to be, involved in the commission of an offense under the Convention. The authorization and cooperation of the flag State is required before such boarding can take place.24 Such authorization may be made in general or ad hoc. A State Party may notify the IMO Secretary-General that it will grant the authorization to board and search a ship flying its flag, its cargo and persons on board if there is no response within four hours. A State Party can also notify that it authorizes a requesting Party to board and search the ship, its cargo and persons on board, and to question the persons on board to determine whether an offense has been, or is about to be, committed. Finally, a State Party may grant the authorization to board a ship under its flag when requested. Art. 8 b is of the 2005 Protocol includes several safeguards when a State Party takes measures against a ship, including boarding. Unfortunately, the Protocol lacks an appropriate dispute settlement clause in spite of the fact that flag States and inspecting States may disagree as to whether the investigation was justified in substance and in form.

22  See note 3; on its legislative history see Tiribelli (note 21) at 146 et seq. 23  This international agreement which supplements the Rome Convention, was developed in direct response to the 11 September 2001. 24  Article 8 b is, para. 4 b of the 2005 Protocol.

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Measures Taken on the Basis of Bilateral Arrangements The multilaterally mandated measures against the maritime transport of weapons of mass destruction are being supplemented by measures having a bilateral basis, namely the Proliferation Security Initiative (PSI). It is the objective of PSI, originally announced by the US President Bush in 2003, to interdict the “transfer or transport of weapons of mass destruction, their delivery systems, and related materials to and from States and non-State actors of proliferation concern”.25 Most problematic is subparagraph 4(d) of the Statement, which calls on PSI participants: To take appropriate actions to (1) stop and/or search in their internal waters, territorial seas, or contiguous zones (when declared) vessels that are reasonably suspected or carrying such cargoes to or from states or non-state actors of proliferation concern and to seize such cargoes that are identified; and (2) to enforce conditions on vessels entering or leaving their ports, internal waters or territorial seas that are reasonably suspected of carrying such cargoes, such as requiring that such vessels be subject to boarding, search, and seizure of such cargoes prior to entry. Intercepting ships, which are under the suspicion to carry weapons of mass destruction, without the consent of the flag State raises the question of the compatibility of such action with the law of the sea at least as a matter of principle. Under the Convention, the competence to intercept a vessel depends on the circumstance where such action is undertaken in the territorial waters of a State, in the exclusive economic zone or on the high seas. As long as the interception of a vessel under flag different from the intercepting State takes place in the internal waters by the coastal State concerned, such act cannot be contested under the law of the sea. The situation is more 25  See on this initiative M. Byers, “Policing the High Seas: The Proliferation Security Initiative”, AJIL, nº 98 (2004), 526; Ch. Schaller, “Die Unterbindung des Seetransports von Massenvernichtungswaffen”, SWP-Studie (2004); W. Heintschel von Heinegg, The Proliferation Security Initiative—Security vs. Freedom of Navigation, Israel Yearbook on Human Rights, vol. 35 (2005), 181; Maximilian Malirsch & Florian Prill, “The Proliferation Security Initiative and the 2005 Protocol to the SUA Convention”, ZaöRV, nº 67 (2007): 229–240; Jack I. Garvey, “The International Institutional Imperative for Countering the Spread of Weapons of Mass Destruction: Assessing the Proliferation Security Initiative”, Journal of Conflict & Security Law, vol. 10 (2005): 125–147; Samuel E. Logan, “The Proliferation Security Initiative: Navigating the Legal Challenges”, Journal of Transnational Law & Policy, vol. 14 (2004–2005): 253–274.

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complicated in the territorial sea. According to article 25 of the Convention coastal States may take action against a passage which is not innocent. The provisions of the Convention on innocent passage are to be considered as customary international law. According to article 19, para. 1, of the Convention passage is not innocent if it is “prejudicial to the peace, good order or security of the coastal state” or if the ship is engaged in one of the activities listed in article 19 para. 2, of the Convention. Taken literally article 19 of the Convention excludes that the coastal States limits the exercise of passage with the view to protect the interest of the community of States. It may act in its own interests only. Although article 21 of the Convention gives the coastal State the authority to adopt laws and regulations in accordance with international law this competence is limited. None of the issues which may be regulated on that basis would cover the transit of weapons of mass destruction. It should be noted in this context that the transport of nuclear substances is, according to article 23 of the Convention, not in contradiction with the principle of innocent passage.26 Finally, article 27 of the Convention cannot, at least not in itself, serve as a basis for controlling ships in transit. Here again it is required that either the coastal State’s action is being undertaken to defend its own interests (para. 1, lit. (a) and (b)), or such act is being undertaken upon request of the master of the ship or the flag State or for suppression of illicit traffic in narcotic drugs or psychotropic substances (para. 1, lit. (c) and (d)). It has been argued that coastal States may declare the transport of weapons of mass destruction and the relevant soft wave as a crime under their national criminal law and take enforcement action on the basis of article 27 of the Convention.27 Those advocating this position would have to argue that the crime has been committed on board of the ship passing through the territorial sea and that this crime is of a kind to disturb the peace of the country28 or the consequences of the crime extend to the coastal State.29 This interpretation constitutes a problematic circumvention of the inherent limits of article 27 of the Convention. On the same basis the whole transport of nuclear waste of the transport of dangerous goods could be prohibited.

26  It is astonishing that this article is rarely referred to, equally it is rarely stated that this is an article insisted upon by the United States of America. 27  Heintschel von Heinegg (note 24) at 193; Logan (note 24) at 263. 28  Article 27 para. 1 (b) of the Convention. 29  Article 27 para. 1 (c) of the Convention.

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The Involvement of the Security Council It has been argued that a passage can be considered to be not innocent if the conditions of Security Council Resolution 1540 (2004) of 28 April 2004 are met.30 It has further been argued that States may, on the basis of Resolution 1540, enact national legislation declaring the transport of weapons of mass through their territorial seas a criminal offence which would allow the coastal State concerned to take actions as prescribed in article 27 para. 1, of the Convention on the Law of the Sea. Certainly Resolution 1540 provides that the proliferation of weapons of mass destruction constitutes a threat to international peace. Even if one accepts that the Security Council may exercise such quasi legislative power this does not render the transit of such material automatically non-innocent. The definition of innocent is quite narrow.31 The legal situation in respect of international straits raises particular problems given the enhanced status of international navigation. It is being discussed controversially32 whether ships carrying weapons of mass destruction without being targeted against a particular State may be interdicted on the high seas by warships of another State without the consent of the flag State concerned. The exclusive jurisdictional relationship between a flag State and its vessel on the high seas is well rooted in customary international law. In the Lotus case the Permanent Court of International Justice held that “vessels on the high seas are subject to no authority except that of the State whose flag they fly”.33 Article 92 of the Convention codifies this principle. Several exceptions are provided for, e.g. if there is a waiver by the flag State, or when the vessel is without a flag, or the vessel is engaged in piracy, slavery or unauthorized broadcasting. Accordingly there is a strict limit against boarding and inspecting a vessel under a flag different from the one of the investigating vessel.34 Security Council Resolution 1540 (2004) affirms, as already stated, that ‘proliferation of nuclear, chemical and biological weapons, as well as their means of delivery, constitutes a threat to international peace and security’ and requires 30  Heintschel von Heinegg (note 24), at 194. 31  See article 19 of the Convention. 32  See Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (Cambridge: Cambridge University Press, 2009), 232 et sqq.; Rosemary G. Rayfuse, Non-Flag State Enforcement in High Seas Fisheries (Leiden: Martinus Nijhoff Publishers, 2004), at 59 et seq; Heintschel von Heinegg, (note 25) at 194; S. Kaye, “The Proliferation Security Initiative in the Maritime Domain”, Israel Yearbook on Human Rights, vol. 35 (2005), 223. 33  PCIJ ser. A 1927 No. 9 at 25. 34  See article 110 of the Convention.

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inter alia, all States to ‘adopt and enforce appropriate effective laws which prohibit any non-State actor to [. . .] transport, transfer or use nuclear, chemical or biological weapons and their means of delivery.’35 The central question which remains is whether every State may take relevant countermeasures. Measures taken against the threat of terrorism may result in a temporary limitation of the freedom of navigation. Several Security Council Resolutions, in particular, Resolution 1373 (2001) form the necessary international law basis for the marine interception operations undertaken by various naval units in the Indian Ocean and off the coast of Somalia. Flag States may not object to an investigation of ships under their flags by warships of other States, as long as the measures taken are proportionate. These measures mandated multilaterally, namely by the Security Council, are to a certain extent supplemented by precautionary measures taken by port authorities in an attempt to provide stricter control of ships’ cargo. The container security initiative set up by the United States attempts to extend the zone of security outward by shifting security and screening activities to the border of the exporting country.36 On 19 September 2002, Singapore became the first country to sign an agreement with the United States of America allowing U.S. customs inspectors to ensure that cargo shipping containers bound for the United States are not being used for terrorist attacks. Several other port authorities have agreed to join the U.S. container safety program and more have joined. Such initiative is to be considered in the context of freedom of navigation, too, since container ships not having undergone this system face repercussions in US ports.

Unilateral Measures

Apart from the limitations imposed upon the freedom of navigation induced by international law, several coastal States are limiting the freedom of navigation beyond that. For example, the Maldives require prior authorization for the entry of all foreign vessels in its exclusive economic zone. Other States such as Guyana, India and Pakistan have established the competence to declare certain areas in their exclusive economic zones where they can regulate the entry and passage of foreign vessels. Other States prohibit the freedom of navigation for vessels of a particular design (for example single hull tankers) or carrying 35  Preambel and para. 2. 36  As to the details see Marjorie Florestal, “Terror on the High Seas”, 72 Brooklyn Law Review (2007): 385–447.

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a particular cargo (such as radioactive nuclear material) through the exclusive economic zones. More generally, several coastal States claim—contrary to the Convention—general police powers in their exclusive economic zone.

Tentative Conclusions

As indicated in the introduction, measures having the effect or that are even intended to limit the freedom of navigation, transit passage or innocent passage are being undertaken on the multilateral level, namely IMO and the Security Council, on the basis of bilateral arrangements, or unilaterally. There is no doubt that the objective pursued, namely the protection of the marine environment or the protection against the proliferation of weapons of mass destruction or the protection against terrorism are—at least in principle— valid ones. Nevertheless, there are some concerns. It is worth considering whether IMO or the Security Council really have a sound legal basis for acting as legislators—a function they exercise de facto in the cases mentioned in the context of this contribution. It has to be seen that multilateral actions are being supplemented by measures undertaken on the basis of bilateral arrangements (PSI, Container Security Initiative, agreements on the interception of vessels) or even unilaterally (unilaterally declared mandatory pilotage). The reasons for such supplementary measures are dissatisfaction with the results achieved on the multilateral level and the desire for unilaterally tailored solutions. For vessels, this mixture of restrictions which seem to lack coherency is difficult to cope with. At present, the limitations faced may still be tolerable but if this trend prevails—and there are clear indications that it will—a reassessment may be called for.

PART 3 The United Nations Convention on the Law of the Sea (Unclos)

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Chapter 8

UNCLOS at 30: Some Reflections Tommy Koh I have vivid memories of the year 1982. I remember the high emotion in the conference room, at the UN in New York, on 20 April 1982, when I put the UN Convention on the Law of the Sea, to the vote. The vote was 130 in favour, 4 against with 17 abstentions. I also remember the final session of the conference, held in the Montego Bay, Jamaica, from the 6th to the 10th of December 1982. When the Convention was opened for signature, on the 11th December, it was signed by 119 States. Let me share a few thoughts and reflections. First, I mourn the passing of so many of our dear friends and colleagues. Those who played a leadership role in the negotiations include Andres Aguilar, Shirley Amerasinghe, Hans Anderson, Alfonso Arias-Schreiber, Christopher Beeby, Alan Beesley, Keith Brennan, Jorge Castaneda, Tom Clingan, Paul Engo, Jens Evensen, Reynaldo Galindo Pohl, S.P. Jagota, Elizabeth Mann Borgese, Arvid Pado, Elliot Richardson, Willem Riphagen and Shabtai Rosenne. Second, I am gratified that the Convention has enjoyed near universal support. The Convention has 162 Parties (161 States plus the European Union). The few States, such as, the United States of America, which have not yet acceded to the Convention, have accepted the Convention as the applicable law, I would discourage the efforts of some of our friends who wish to revise the Convention or to convene a new conference to negotiate a new treaty on the high sea. The Convention has served us well and it would be extremely unwise to undermine its integrity and effectiveness. Third, my dream that the Convention will become the “constitution” of the world’s oceans has come to pass. It is the constitution of the oceans because it treats the oceans in a holistic manner. It seeks to govern all aspects of the resources and uses of the oceans. In its 320 articles, and 9 annexes, as supplemented by the 1994 General Assembly Resolution 48/263 relating to Part XI of the convention and the 1995 Agreement relating to the conservation and management of straddling fish stocks and highly migratory fish stocks, the Convention is both comprehensive and authoritative. Fourth, in recent years, some environmentalists have expressed the view that the Convention gives too much weight to navigational rights and too little to protecting the marine environment. This view is mistaken. When I

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was chairing the negotiations at the Earth Summit, I included chapter 17 in Agenda 21, in order to harmonise UNCLOS and UNCED. Over the past three decades, the IMO has, in conformity with UNCLOS, enacted new treaties, rules and procedures to protect the marine environment from ship-based pollution. What is not generally known is that 80 percent of marine pollution is caused by land-based pollution. It is much harder to stop land-based marine pollution because states hide behind their sovereignty. Fifth, FAO has repeatedly called the world’s attention to the crisis in fisheries. The crisis is being caused by over-fishing, by illegal, unreported and unregulated fishing, by the ineffectiveness of the regional fishery management organizations and by the use of destructive and unsustainable methods of fishing, such as, bottom trawling and dredge fishing. Urgent action is needed to tackle these problems. The world can learn from the successful experiences of Iceland and New Zealand in the management of their fisheries. The IMO should consider requiring all commercial fishing boats to be licensed and to carry transponders. We should also consider eco-labelling for fish. Regional fishery management organisations should be established in all regions, and they should be allowed to make their decisions by majority votes rather than by consensus. Certain destructive methods of fishing should be banned. Sixth, the nexus between climate change and the oceans is insufficiently understood. People generally do not know that the oceans serve as the blue lungs of the planet, absorbing CO2 for the atmosphere and returning oxygen to the atmosphere. The oceans also play a positive role in regulating the world’s climate system. One impact of global warming on the oceans is that the oceans are getting warmer and more acidic. This will have a deleterious effect on our coral reefs. In view of the symbiotic relationship between land and sea, the world should pay more attention to the health of our oceans. Seventh, I wish to express a serious concern about the tendency by some coastal states to expand their jurisdictions and their rights in violation of the Convention. Some states have drawn straight baselines when they are not so entitled. Other states have enacted laws and regulations governing activities in the Exclusive Economic Zones even though they have no jurisdiction over such activities under the Convention. Some states have acted in contravention of the regime of transit passage. States have shown very little integrity and fidelity to law when it comes to deciding whether a feature is a rock or an island. I think states should be less reluctant to protest against such actions by other states and be more willing to refer such disputes to dispute settlement. My concluding thought is that UNCLOS III brought together an impressive community of legal talent and skilful negotiators. Although they represented

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their respective countries and pursued their national interests, they were also inspired by the realization that they were pursuing a dream, the dream of drafting a modern and comprehensive law to govern the world’s oceans. I made many friends in the conference. One of the friends is the eminent jurist and judge and gentleman from Argentina—Hugo Caminos.

Chapter 9

Is the Internal Waters Regime Excluded from the United Nations Convention on the Law of the Sea? Marcelo G. Kohen Internal waters are one of the eight or nine different existing maritime areas. They are part of the territory of the State and, as such, fall under its sovereignty. In other words, States exercise the maximum of their competencies therein. This is a feature internal waters share with the territorial sea and with archipelagic waters. Indeed, before the first half of the 20th century there was no distinction between internal waters and the territorial sea. The only two existing maritime areas were territorial waters and the high seas. This is an oftenneglected aspect of the question, which deserves attention. Unsurprisingly, much of the argumentation used to exclude internal waters from the realm of the international law of the sea, in order to consider that these waters as simply governed by the domestic law of the coastal State, recalls the arguments employed to deny any international regulation of territorial waters, at the time when the distinction between territorial sea and internal waters did not exist. As will be explained below, it has then been contended, in recent litigation, that the International Convention on the Law of the Sea (hereinafter, ‘UNCLOS’ or the ‘Convention’) does not govern internal waters. These waters would even escape international concern, to be governed exclusively by domestic law and subject to the same conditions as the rest of the territory under the sovereignty of the State. This is a common belief in part of the doctrine.1 The purpose of this contribution is to demonstrate precisely the opposite. This is not a purely academic debate. It has practical importance, since the dispute settlement mechanism set out in Part XV of the UNCLOS, and particularly the compulsory procedures entailing binding decisions, only relate to disputes as to the interpretation or the application of this Convention.2 Indeed, the attempt to exclude any question concerning internal waters from the UNCLOS essentially aims at equally excluding it from the dispute settlement procedures.

1   See i.e. Kaare Bangert, “Internal Waters”, in The Max Planck Encyclopedia of Public International Law, vol. V, ed. R. Wolfrum (Oxford: Oxford University Press, 2012), 310–316. 2  See Arts. 279 and 286 of the UNCLOS. © koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004283787_0�0

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The present contribution, which pays homage to the leading Argentine specialist in the law of the sea, will be divided into three parts. First, it will examine the arguments developed to deny the application of the UNCLOS to internal waters. Second, it will expose that it is the UNCLOS that determines the spatial and legal scope of internal waters. Third, it will specifically describe the rights and obligations of coastal and third States in internal waters as established or recognised by the UNCLOS. As a result, the logical conclusion that will follow is that the UNCLOS does contain regulations applicable to internal waters, and taken together, establishes a legal regime for them.

Arguments Developed to Deny the Application of the UNCLOS to Ιnternal Waters

It has been asserted that in all the codification efforts of the law of the sea, it was decided to exclude internal waters. Counsel acting for Ghana in the ARA Libertad case (Argentina v. Ghana), emphatically asserted before ITLOS that [a]t each stage it was understood that the regime of ports and internal waters was excluded from the relevant instrument and from the 1982 Convention, on the basis, as one member of the International Law Commission put it in 1954, that it was ‘universally agreed’ that the regime of ports and internal waters was ‘different from that of the territorial sea’.3 As is known, the ARA Libertad case related to the detention of an Argentine warship,while in a Ghanaian port as a result of a State visit agreed upon by both parties,throughan order of injunction delivered by a Ghanaian judge. One of the main arguments of the defendant was that the Convention does not regulate the immunity of warships in internal waters. In its written statement before ITLOS, Ghana contended that [i]nternal waters are an integral part of a coastal state and are therefore not the subject of detailed regulation by the Convention. The coastal state enjoys full territorial sovereignty over internal waters, and any foreign vessel that is located in internal waters is subject to the legislative, administrative, judicial and jurisdictional powers of the coastal State.4 3  ITLOS, The Ara Libertad Case, 30 November 2012, ITLOS/PV.12/C20/4, p. 3, lines 39–43 (Sands). 4  ITLOS, The Ara Libertad Case (Argentina v. Ghana), Written Statement of the Republic of Ghana, 28 November 2012, par. 13.

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And further, “[t]o the extent that such a rule might exist it could only be found outside the Convention, whether under other rules of customary or conventional international law.”5 Contrary to the position of Ghana, the order of the ITLOS of 15 December 2012 was unanimous in stating that “the Annex VII arbitral tribunal would prima facie have jurisdiction over the dispute”.6 The reason for this finding was that Article 32 of the Convention (“Immunities of warships and other government ships operated for non-commercial purposes”) states that ‘nothing in this Convention affects the immunities of warships’ without specifying the geographical scope of its application [. . .] [and] that, although article 32 is included in Part II of the Convention entitled ‘Territorial Sea and Contiguous Zone’, and most of the provisions in this Part relate to the territorial sea, some of the provisions in this Part may be applicable to all maritime areas, as in the case of the definition of warships provided for in article 29 of the Convention.7 Notwithstanding this unanimity, two members of the ITLOS agreed “in principle” with the respondent in the idea that “none of the provisions of the Convention provide for the immunity of warships in the internal waters of a foreign State”.8 With regard to the general question discussed in this contribution, i.e. whether internal waters are governed by the UNCLOS, it is worth quoting the joint separate opinion of Judges Cot and Wolfrum, since it explains this position in a better way than was done by the Respondent during the proceedings for the request for the prescription of provisional measures. According to these judges: there are certain provisions in the Convention having a bearing on the legal regime governing internal waters; these are article 2, paragraph 1, article 7, paragraph 3, article 8, article 10, paragraph 4, article 18, paragraph 1, article 25, paragraph 2, article 27, paragraph 2, article 28, paragraph 3, article 35 (a), article 50, article 211, paragraph 3, and article 218 of the Convention. But even a cursory assessment of these provisions clearly indicates their limited scope. They only deal with the status of internal waters, equating that area with the land territory, the access 5  Id., para. 12. 6  ITLOS, The Ara Libertad Case (Argentina v. Ghana), Case N° 20, Order of 15 December 2012, para. 67. 7  Id., paras. 63–64. 8  Joint separate opinion of Judges Cot and Wolfrum, id., paras. 22–23 of this opinion.

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thereto, their delimitation vis-à-vis the territorial sea, the rights of coastal States exercising their jurisdiction vis-à-vis vessels having left internal waters and the rights of coastal States to prevent the entry of vessels into their internal waters. However, all these provisions taken together do not constitute a comprehensive legal regime comparable to the one on the territorial sea (see the different approach taken in the Order).9 Interestingly enough, the joint separate opinion enumerates a rather considerable number of provisions of the UNCLOS that deal with internal waters, even though, as will be explained below, this list is not exhaustive, since other important provisions also refer to the conduct of the coastal State in internal waters and ports. It is not explained why these provisions taken together, plus those of general character applicable to all maritime areas, would not constitute a ‘comprehensive legal regime’. Instead, the joint separate opinion states that in any event this legal regime would not be comparable to the ‘comprehensive legal regime’ of the territorial sea. However, the question here is not whether the regime of the territorial sea is more elaborate or ‘comprehensive’ than that of internal waters. One could easily argue that the UNCLOS regime of the Zone is more elaborate and therefore more ‘comprehensive’ than that of the territorial sea. It may simply be the case that one maritime area may require more rules than others, but this fact does not prevent those areas from being regulated in the UNCLOS. What is considered a decisive example in the joint separate opinion demonstrating that internal waters would not be governed by the UNCLOS is that “an equivalent to article 21 of the Convention describing the laws and regulations of the coastal State relating to innocent passage in the territorial sea is missing. The principle governing internal waters is the sovereignty of the coastal State concerned.”10 This example does not demonstrate that internal waters are not governed by the UNCLOS. It simply shows that, contrary to the territorial sea, there is no right of passage in internal waters. This is simply the main difference between internal waters and the territorial sea, precisely that which justifies the distinction between these two different regimes,11 while some time ago

9  Id., paras. 23–24 of the joint separate opinion. 10  Id., para. 24 of the joint separate opinion. 11  According to the report prepared by the UN Secretariat (Codification Division of the Office of Legal Affairs) on the “Juridical Régime of Historic Waters, Including Historic Bays” (Doc. A/CN.4/143), the importance of the distinction between internal waters and the territorial sea “lies in the fact that (. . .) the coastal State must allow the innocent passage of foreign ships through its territorial sea, but has no such obligation with respect

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there was one regime, covering both, unspecifically referred to as ‘territorial waters’. As the Report on Historic Waters prepared in the framework of the work of the International Law Commission explained: “ ‘Territorial waters’ could be used as a term comprehending both the ‘territorial sea’ and ‘internal waters’; what is now known as ‘internal waters’ was therefore often referred to as ‘territorial waters’.”12 Furthermore, the distinction between internal waters and the territorial sea through the existence of the right of innocent passage is not an absolute one. There are internal waters in which the right of innocent passage does exist. According to Article 8, paragraph 2 of the UNCLOS, where the establishment of a straight baseline “has the effect of enclosing as internal waters areas which had not previously been considered as such, a right of innocent passage as provided in this Convention shall exist in those waters.” Furthermore, there are other internal waters whose regime includes UNCLOS provisions granting a right of transit passage, such as those constituting straits used for international navigation.13 A further argument developed by both the Respondent and the joint separate opinion was that the internal waters regime is that of the territorial sovereignty of the coastal State. Judges Cot and Wolfrum based their analysis of this question in the way Article 2, paragraph 1, of the UNCLOS explains the sovereignty of the coastal State over its territorial sea. According to their joint separate opinion, this provision equates internal waters and archipelagic waters with the land territory whereas it ‘extends the sovereignty to an adjacent belt of sea called the territorial sea’. This clearly establishes that internal waters originally belong to the land whereas the territorial sea so belongs but only on the basis of international treaty and customary international law. As a consequence thereof limitations of the coastal States’ sovereignty over internal waters cannot be assumed.14 This alleged distinction, putting internal and archipelagic waters on the one side, and the territorial sea on the other, is not justified for a number of reasons. Article 2, paragraph 1, reads as follows: to its internal waters”, Yearbook of the International Law Commission, vol. II (1962): 23, para. 160.  12  Id., p. 23, para. 162. 13  See Art. 34 and ff. of the UNCLOS. 14  Joint separate opinion of Judges Cot and Wolfrum, id., paras. 25 of this opinion.

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The sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea. First, this text in no way ‘equates’ the internal and archipelagic waters with land territory and distinguishes this ensemble from the territorial sea. The text is absolutely clear. Not only is there no distinction between the given regimes of each area, but rather the contrary: the same attribute of the State applies, i.e. the sovereignty of a coastal State extends to all the relevant areas this article mentions: land territory, internal waters, archipelagic waters and territorial sea. The first paragraph of Article 2 simply geographically describes where the territorial sea is located. Second, nothing in the text, or even outside this article, allows the conclusion according to which internal waters “originally belong to the land” whereas the territorial sea only ‘belongs’ to that land “on the basis of treaty and customary law”. Indeed, the three maritime areas are the result of the recognition of their existence by customary and conventional law. As indicated earlier, the distinction between internal waters and territorial sea is not an old one. It started during the first half of the 20th century and has its background in the discussion about the existence or not of a right of innocent passage in the territorial waters of the coastal State.15 It is telling that the Central American Court of Justice, while considering in a 1917 judgment that the Gulf of Fonseca is a historic bay, called its waters ‘territorial’ and not ‘internal’.16 And it is all the more significant that the Chamber of the ICJ dealing with the El Salvador/Honduras: Nicaragua intervening case, while agreeing with the Central American Court of Justice on the legal qualification of the Gulf of Fonseca, considered its waters “internal”, following the terminology contemporary to its judgment in 1992.17 It is not by chance that the Institut de Droit international, only in 1957, adopted 15  For an account and discussion of the existence of the right of innocent passage in territorial waters see Philip C. Jessup, The Law of Territorial Waters and Maritime Jurisdiction (New York: Jennings, 1927). 16  Central American Court of Justice, El Salvador v. Nicaragua, Opinion and Decision of 9 March 1917, AJIL, vol. 11 (1917): 705. For the original text in Spanish of the judgment, see: Sentenciapronunciada en el juiciopromovidopor el Gobierno de la República de El Salvador contra el Gobierno de la República de Nicaragua por la celebración del Tratado BryanChamorro. Corte de Justicia Centroamericana. San José, Costa Rica, 9 (mars 1917). 17   Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), judgment of 11 September, ICJ Reports (1992): 593, para. 393, p. 605, para. 412 (for the qualification of the waters as “internal”), p. 616, para. 432, (1) (for the operative part deciding that the Gulf of Fonseca is a historic bay).

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a resolution on “The distinction between the régime of the territorial sea and the régime of internal waters”.18 Furthermore, ‘archipelagic waters’ were a creation of the UNCLOS as a way to also settle a difference existing between those archipelagic States, particularly Indonesia and the Philippines, that claimed these waters as internal, and others who denied them that character. The compromise was precisely the creation of a new third category between internal waters and the territorial sea.19 Third, the fact that “limitations of the coastal States’ sovereignty over internal waters cannot be assumed” is not relevant for the matter under discussion. Those limitations cannot be assumed over the territorial sea either. In all cases, these limitations to sovereignty must be established by international law. As will be demonstrated below, these limitations exist with regard to internal waters and find their basis within the UNCLOS. As a matter of course, they can also be the result of other agreements, i.e. bilateral and multilateral treaties.20 Finally, the joint separate opinion relied upon a quick examination of the travaux préparatoires in order to consider that there is no regime of internal waters in the UNCLOS. In particular, it is mentioned that no State suggested including rules about that regime or about ports.21 As will be seen below, the fact is that the Convention does contain rules relating to the rights and obligations of coastal and third States in internal waters and ports, even though they are not put together in a single section. Furthermore, no State objected to this on the ground that regulations relating to internal waters should be excluded from the scope of the Convention. The rest of the references mentioned in the joint separate opinion are exclusively concerned with the regime of ports and not with internal waters in general. Tellingly, the references to the Second Commission of the Hague Conference for the Codification of International Law in 1930, the work of the International Law Commission, or that of the Conference adopting the 1958 Geneva Convention on the Territorial Sea and 18  Resolution adopted at the Session of Amsterdam on 24 September 1957. Available at: www.idi-iil.org/idiE/resolutionsE/1957_amst_01_en.pdf. 19  See, i.e. Donald R. Rothwell & Tim Stephens, The International Law of the Sea (Oxford/ Portland Hart, Oregon, 2010), 53. 20  Example of a bilateral agreement is the 1984 Treaty of Peace and Friendship between Argentina and Chile, Annex 2, Article 1, recognising a right of passage for Argentine vessels through Chilean internal waters between the Strait of Magellan and Argentine ports in the Beagle Channel (available at: http://www.un.org/depts/los/legislationandtreaties/ pdffiles/treaties/chl-arg1984pf.pdf). Example of multilateral conventional law is the International Convention for the Safety of Life at Sea (SOLAS) and the International Maritime Organisation regulations on access to ports. 21  Joint separate opinion of Judges Cot and Wolfrum, id., para. 26 of this opinion.

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the Contiguous Zone, all mention the fact that the regime of ports fell outside what the respective works were about, i.e. the territorial sea.22 All this reasoning led Judges Cot and Wolfrum to conclude that they “cannot assume that all activities of the coastal State in its internal waters and its ports are governed by the Convention and accordingly come under the jurisdiction of the Tribunal”.23 However, nobody contended—nor was this the question at issue in the relevant case—that all activities of the coastal State in internal waters are governed by the UNCLOS. One could also claim that not all activities of the coastal State in its territorial sea are governed by the UNCLOS. The key issue is in fact whether the relevant aspects of the problem or the activities concerned are governed by the Convention or not. A perusal of the UNCLOS easily demonstrates that this instrument is crucial for the determination of the legal scope of internal waters, and establishes some important rights and obligations for coastal and other States in this maritime area that otherwise would not exist.

It is the UNCLOS that Determines the Spatial and Legal Scope of Internal Waters

The decision about what constitutes the internal waters of a State is not a matter for it to exclusively decide. It has always been a matter for determination by international law. Customary international law progressively developed from the notion of historic bays and waters to accepting the drawing of straight base lines for the measurement of the breadth of the territorial sea, attributing to the waters lying inside these lines the character of internal waters. The UNCLOS consecrates this development by explicitly determining which are the internal waters of the coastal State. Article 8 denounces that “waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State”. Article 7 describes the conditions that straight base lines must follow in order to be in accordance with international law. Its paragraph 3 specifically describes the rationale: “The drawing of straight baselines must not depart to any appreciable extent from the general direction of the coast, and the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters”. In this regard, the Convention allows the coastal State to use

22  Id., paras. 29–33. 23  Id., para. 34.

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fringing islands and low tide elevations for the drawing of straight base lines, and consider the waters within these base lines as internal.24 Article 10 also allows coastal States to consider as internal waters those enclosed within a closing line of bays that do not exceed 24 miles. The same article recognises the existence of ‘historic’ bays, whose waters are internal irrespective of the width of their mouths. This is so even if the Convention does not include any definition of historic bays or waters. According to the uncontroversial definition given by the ICJ, “[b]y ‘historic waters’ are usually meant waters which are treated as internal waters but which would not have that character were it not for the existence of an historic title’.”25As a matter of course, the fact that the UNCLOS does not define ‘historic bays’, let alone refer to ‘historic waters’, does not mean that, if a question relating to the nature of a bay, or of waters that are claimed as historic, arises in a maritime delimitation dispute between parties to the Convention, the matter is not covered by it and therefore falls outside the scope of the compulsory means of dispute settlement established by Part XV. It is generally assumed that the waters of any port are to be considered as internal. However, Article 11 of the UNCLOS only establishes that “[f]or the purpose of delimiting the territorial sea, the outermost permanent harbour works which form an integral part of the harbour system are regarded as forming part of the coast.” Although it is true that in most cases these outermost permanent harbour works must be linked through straight lines, rendering the waters inside these internal, this must be not the case in all circumstances. Consequently, it may be that port facilities belong to the territorial sea. This is confirmed by the fact that, i.e. Art. 18, while referring to the right of innocent passage, mentions internal waters or ‘a roadstead or port facility outside internal waters’.26 To sum up, internal waters, according to the UNCLOS, are those situated within straight base lines drawn in accordance with the Convention, closing lines of bays also as established by the Convention, historic bays and, in most cases, port waters. It is true that the UNCLOS does not contain a provision for the delimitation of internal waters, as is the case for the territorial sea, the continental shelf and the exclusive economic zone. It must be pointed out that the Convention does not provide for a delimitation rule with regard to the contiguous zone either, as is the case in the 1958 Geneva Convention on the Territorial Sea and 24  See Art. 7 para. 1 and Art. 13. 25  Fisheries case, Judgment of December 18th, 1951, ICJ Reports (1951): 130. 26  Emphasis added.

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the Contiguous Zone.27 Article 15 of the UNCLOS, however, affirms that the provision establishing equidistance as the delimitation method for the territorial sea does not apply “where it is necessary by reason of historic title or other special circumstances”. The reference to historic titles may imply either the existence of internal waters or territorial sea, “according to whether the sovereignty exercised over them in the course of the development of the historic title was sovereignty as over internal waters or sovereignty as over the territorial sea”.28 Consequently, a delimitation of the territorial sea between States parties to the UNCLOS may in some cases require the determination of the existence of internal waters and a departure from the equidistance line. Yet in other cases, the Court or Tribunal dealing with a maritime delimitation may decide whether a given maritime zone constitutes internal waters or the territorial sea, as it was the case of the I.C.J. in the Qatar v. Bahrain case.29 Given the nature of internal waters as essentially closed within straight lines, the factual possibility of the need to delimit the internal waters of two or more coastal States is really very exceptional. The most suitable case for delimitation would be a historic bay surrounded by two or more States. For example, the maritime delimitation concluded by Honduras and Nicaragua on 12 June 1900 in the Gulf of Fonseca, a historic bay, delimited internal waters, as the Chamber of the ICJ examined in El Salvador/Honduras (Nicaragua intervening) case.30 The question may arise whether a maritime delimitation dispute which includes the delimitation of internal waters would be suitable for the compulsory procedures of Part XV of the UNCLOS. If the position is followed according to which internal waters are excluded from the regime of the UNCLOS, then the natural consequence would be that such a delimitation would not be subject to those procedures. In the author’s view, this would be an erroneous analysis. As seen throughout this contribution, the UNCLOS does include rules

27  See Arts. 15, 74 and 83 of the UNCLOS and Art. 24 para. 3 of the Convention on the Territorial Sea and the Contiguous Zone. 28  “Juridical Régime of Historic Waters, Including Historic Bays”, Report prepared by the Secretariat, (Doc. A/CN.4/143), Yearbook of the International Law Commission, 1962, vol. II, p. 23, para. 167. 29  Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment, ICJ Reports (2001): 110, para. 223. 30   Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment of 11 September 1992, I.C.J. Reports 1992, pp. 601–602, para. 404, and p. 605, para. 413.

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for the regime of internal waters. Moreover, Article 15, through its reference to historic title, would allow a delimitation of internal waters.31

Rights and Duties of the Coastal State in Internal Waters as Recognised by the UNCLOS

What is decisive in order to demonstrate that the UNCLOS has regulated and, indeed, established a regime for internal waters, is its ascertainment of rights and duties for coastal and third States in these waters. This can be done by way of establishment by the UNCLOS of new and not previously existing rights and obligations, or by the recognition of rights and obligations already existing at the customary law level or in other treaties. A perusal of the relevant rules of the Convention indicates that both of these propositions are present here. The following is a list of these rights and obligations: 1) Right of innocent passage for foreign vessels in areas of internal waters that were not considered such before the drawing of straight base lines (Article 8, paragraph 2). 2) Right of transit passage for foreign vessels in straits used for international navigation whose waters are internal (Arts. 34 and 35 a]). 3) Right of transit of land-locked States for their exercise of the right of access to and from the sea and all rights provided for in the Convention (Art. 125). 4) Obligation to grant ships flying the flag of land-locked States equal treatment to that accorded to other foreign ships in maritime ports (Art. 131). This is a conventional obligation establishing a clear limitation to port State decisions. Here there is a clear difference with regard to the 1923 Convention on the international regime of maritime ports, based on reciprocity of the contracting parties. While reciprocity could be a reason for granting some advantages to other states regarding maritime ports, land-locked States cannot be disadvantaged by the impossibility of reciprocity in this regard. 5) Obligation for coastal states to communicate and to give due publicity to particular requirements for the prevention, reduction and control of pollution

31  In his dissenting opinion appended to the judgement in El Salvador/Honduras (Nicaragua intervening) case, Judge Oda was of the view that the expression “historic waters” has become a redundancy, because it “was used to justify the status of internal waters”, ICJ Reports (1992): 757, para. 44.

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of the marine environment as a condition for the entry of foreign vessels into their ports or internal waters (Art. 211, para. 3). 6) Right of enforcement of measures for the prevention, reduction or control of pollution by coastal States with regard to foreign vessels voluntarily within their ports in relation to discharge from those vessels occurring outside the areas under their sovereignty or jurisdiction (Art. 218). This conventional right established by the UNCLOS is a derogation from the normal jurisdiction of flag States for acts accomplished by vessels in areas outside national jurisdiction. Equally, this right to exercise jurisdiction by the port State for acts accomplished within areas under the sovereignty or jurisdiction of other States, with their consent (Art. 218, para. 2), is also a conventional right. 7) Obligation for coastal States, subject to the domestic regulations, to facilitate access to their harbours to marine scientific research vessels (Art. 255). 8) Obligation for coastal States of prompt release of detained foreign vessels and their crews after the posting of a reasonable bond or other financial security (Art. 292). This is also a conventional obligation and a limitation to municipal regulations, regardless of whether domestic law provides this possibility. 9) Obligation to respect the sovereign immunity of warships or other governmental vessels used for non-commercial activities, even in cases of breach of their obligations relating to the protection of the marine environment (Arts. 32 and 236). As Judge Paik stated in his declaration appended to the Order of 15 December 2012, immunity of a warship in the port of a foreign State “constitutes one of the most important pillars of the ordre public of the oceans”.32 10) Obligation of the coastal State not to impede the freedom of navigation of foreign vessels by arbitrarily preventing them from leaving their internal waters. An arbitrary detention of a foreign vessel by the coastal State, after having allowed it to enter its internal waters and/or call at port, cannot but be a blatant breach of the freedom of navigation in other maritime areas and the right of innocent passage in the territorial sea, as established in Articles 18, 58 and 87 of the Convention.33 ITLOS, in its order of 15 December 2012 in 32  Declaration of Judge Paik in The Ara Libertad Case (Argentina v. Ghana), ITLOS Case N° 20, para. 29. 33  See the Separate Opinion of Judge Lucky in The Ara Libertad Case (Argentina v. Ghana), ITLOS Case N° 20, para. 29. In their joint separate opinion, judges Cot and Wolfrum find it “hard to imagine how the detention of a vessel in port in the course of national civil proceedings can be construed as violating the freedom of navigation on the high seas. To take this argument to the extreme, it would, in fact, mean that the principle of the

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the “ARA Libertad” case, simply established that Article 18, paragraph 1 b) and Articles 87 and 90 “do not relate to the immunity of warships in internal waters”.34 Indeed, respect for the immunity of warships and the arbitrary detention of any foreign vessel in port are two different questions. They need not be put together. As the ICJ stated in the Nicaragua v. USA case, “it follows that any State which enjoys a right of access to ports for its ships also enjoys all the freedom necessary for maritime navigation.”35 This includes the right for ships to leave if there is no reason to detain them.36 Conclusion The previous concise analysis reveals that there emerges from the UNCLOS a clear regime for internal waters. While sovereignty is the status that coastal States enjoy over these, the Convention establishes a number of rights and obligations completing that status. There is nothing surprising about this, since the same can be said about the territorial sea. Whether States were unwilling to have a separate part of the Convention specifically dealing with internal waters is completely immaterial. It is also immaterial whether this freedom of navigation would render all vessels immune from civil proceedings and in consequence from the implementation of the national law of the port State in question”. (Id., para. 37 of their opinion). This statement is highly misleading. As a matter of course, not any vessel is immune from civil proceedings. One thing is to initiate proceedings relating to foreign vessels in port and yet another is to arbitrarily prevent them from leaving the port after having allowed them to enter the internal waters and to call at port. It is only the latter that would constitute a breach to the freedom of navigation. 34  ITLOS, The Ara Libertad Case (Argentina v. Ghana), Case N° 20, Order of 15 December 2012, para. 61. 35  Military and Paramilitary Activities in und against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports (1986): 14, para. 214. 36  In the M/V “Louisa” case, ITLOS considered that the freedom of navigation in the high seas consecrated in Article 87 “cannot be interpreted in such a way as to grant the M/V ‘Louisa’ a right to leave the port and gain access to the high seas notwithstanding its detention in the context of legal proceedings against it”. This generalisation could have been avoided if it is taken into consideration that the “Louisa”, which were performing activities in the territorial sea and internal waters of Spain, was detained in the port of Santa María (Spain) in the context of criminal proceedings initiated after a search of the vessel, in which undersea archaeological pieces and weapons of war were found (see ITLOS, The M/V “Louisa” Case (Saint Vincent and the Grenadines v. Kingdom of Spain), Case N° 18, Judgment, 28 May 2013, in particular paras. 48, 104 and 109, and the Declaration of Judge Paik, paras. 20–29).

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choice obeyed to the idea of recognising the sovereignty of the coastal State over internal waters to be as extensive as possible. The contention according to which internal waters fall outside the scope of the Convention is clearly contradicted by the important number of provisions establishing—in some cases for the first time—or recognising rights and obligations for the sovereign State. What has not been regulated or acknowledged by the UNCLOS residually falls within the realm of the sovereign decision of the coastal State. This is the case of the admission of foreign vessels to internal waters and ports, and the exercise of jurisdiction therein, subject to the limitations described above. Clearly, the UNCLOS does not contain a rule granting freedom of entry into maritime ports. It cannot be claimed that such a right exists at the customary level either, as it was claimed by the arbitral award rendered in the “Aramco” case between Saudi Arabia and the Arabian American Oil Company.37 Considering that everything what coastal States do in their internal waters falls outside the regime of the UNCLOS also flies in the face the essential object and purposes of the Convention, as expressly affirmed in its Preamble: 1) “the desire to settle, in a spirit of mutual understanding and cooperation, all issues relating to the law of the sea”, 2) the consciousness that “problems of ocean space are closely interrelated and need to be considered as a whole” and 3) “the desirability of establishing through this Convention, with due regard for the sovereignty of all States, a legal order of the seas and oceans which will facilitate international communication”. Internal waters are maritime waters. They should not be confused with inland fresh waters, which are subject to a completely different regime.38 Internal waters constitute a specific maritime area, one in which the coastal State enjoys the maximum of competencies. This specificity does not mean that their situation is exactly the same as that of land territory or waterways. As part of the seas,they are governed by the law of the sea and the Convention that comprehensively deals with it. The determination of what constitutes internal waters is not a matter of domestic law but is governed by the UNCLOS. It is also this Convention that has for the first time established rights and obligations for coastal and third States with regard to those waters, as seen in this contribution. It would be seriously damaging, for the understanding of the 37  ILR, vol. 27, 117. See A. V. Lowe, “The Right of Entry into Maritime Ports in International Law”, San Diego Law Review, vol. 14 (1976–1977): 597. 38  “Les eaux qualifiées d’eaux intérieures au sens juridique et dont s’occupe le droit public maritime international sont les eaux maritimes qui se trouvent en deçà de la ligne de départ des eaux dites territoriales”, Gilbert Gidel, Le droit international public de la mer, Tome II : Les eaux intérieures (Paris: Sirey, 1932), 10.

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law of the sea as a whole and for the effort of establishing compulsory mechanisms of dispute settlement, to start differentiating law of the sea issues that are included in the UNCLOS and others that would be “taken for granted” and, as a result, would not be included in the Convention. The freedom of navigation is certainly one of the major freedoms long recognised by the law of the sea. To attribute to the coastal State in its internal waters the absolute right to proceed as it may find fit, and to consider that nothing in the UNCLOS prevents it from acting in that manner, constitutes a double mistake. First, because it would go against the rationale of the Convention. Second, because the UNCLOS itself recognised, by including the institution of prompt release, that freedom of navigation is paramount in its overall regime, and consequently created the way to allow vessels to perform what constitutes their raison d’être: to navigate. The simple ascertainment that the farther the maritime area from the coastal State, the lesser its sovereignty or jurisdiction, does not constitute a ground for excluding internal waters from the law of the sea. They are not on an equal footing to land territory, even though the coastal State possesses sovereignty over both. In territorial waters, there are some limitations to sovereignty derived from the law of the sea that do not exist on land. The same— and this is absolutely uncontroversial—applies to the territorial sea. The fact that at one time two different regimes came into existence for internal waters and the territorial sea does not, as demonstrated here, exclude the former from being regulated by the UNCLOS.

Chapter 10

Le rôle du Secretariat des Nations Unies dans l’application de la Convention des Nations Unies sur le droit de la mer Annick de Marffy-Mantuano Le secrétariat des Nations Unies chargé des affaires maritimes et du droit de la mer, dont l’une des tâches consiste à veiller à l’application de la Convention des Nations Unies sur le droit de la mer adoptée le 10 décembre 1982 (ci-après dénommée la Convention), trouve son origine dans la Troisième Conférence des Nations Unies sur le droit de la mer (ci-après dénommée la Conférence)1. Un bureau spécial directement rattaché au Secrétaire général fut établi pour la servir. En règle générale, le rôle du secrétariat des Nations Unies dans le cadre d’une conférence internationale est d’assurer un support logistique et administratif. La Conférence qui dura de 1973 à 1982 développa des méthodes de travail peu orthodoxes. Le secrétariat dut lui aussi s’adapter et élaborer des méthodes de travail qui dérogèrent à ses responsabilités habituelles. Elle ne peut être comparée aux grandes conférences de codification préparées par la Commission de droit international. Un énorme travail de préparation et de réflexion avaient cependant été entrepris tout d’abord au sein de conférences régionales et pendant six ans au sein du Comité des fonds marins, organe politique dépendant de la première Commission des Nations Unies2. Ce dernier qui n’offrit que des textes sous forme de variantes, n’en servit pas moins de véritable atelier de discussions et de développement des concepts qui allaient trouver leur traduction dans les normes qui virent le jour au sein de la Conférence. L’absence de texte de base imposa au secrétariat de sortir de son rôle d’exécutant pour devenir un acteur participant à la formulation des normes comme à la recherche des compromis. Il eut aussi pendant toutes ces années la tâche primordiale de rassembler une multitude de propositions ainsi que des

1  Voir J.P. Levy, La Conférence des Nations Unies sur le droit de la mer, histoire d’une négociation singulière (Paris: Pedone, 1983). 2  Voir Annick de Marffy, La genèse du nouveau droit de la mer: le Comité des fonds marins (Paris: Pedone 1980).

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documents épars portant sur tous les sujets traités par la Conférence pour en préparer des synthèses constructives. Cette responsabilité accrue confiée aux membres du secrétariat de la Conférence fut possible en raison de la qualité des personnes, toutes spécialement recrutées pour servir la Conférence nouvellement convoquée. La direction du secrétariat fut confiée à Constantin Stravopoulos, conseiller juridique et chef du bureau juridique de l’Organisation des Nations Unies. Il fut nommé Représentant spécial du Secrétaire général pour la Conférence. Le choix de cette personnalité, hautement reconnue et appréciée de même que le titre qui lui fut donné, conférait à ce secrétariat une dimension spéciale, d’autant plus que le personnel recruté sous son contrôle le fut sur la base de critères de hautes compétences au vu souvent, pour les plus séniors, de responsabilités qu’ils avaient antérieurement exercées au sein de leur gouvernement ou d’universités3. L’immensité du travail qui attendait la Conférence, dont le mandat était de refaçonner le régime juridique applicable aux mers et aux océans sous la forme d’une seule convention traitant de tous les aspects, demandait une participation étroite entre les délégués et le secrétariat dont les membres avaient fait l’objet d’un savant dosage de répartition géographique équitable dans un contexte géopolitique difficile. Il convient de citer ici à titre d’exemple, la préparation du texte unique de négociation dont la nécessité s’imposa face à une pléthore de propositions divergentes et de textes assortis de variantes4. L’élaboration de ce texte qui devait servir de base aux travaux et aux négociations fut l’œuvre des présidents respectifs des trois grandes commissions. Nul ne pouvait accomplir une telle tâche sans une implication forte de la part du secrétariat. Après l’ouverture à la signature de la Convention le 10 décembre 1982, le secrétariat fut non seulement maintenu mais ses attributions ne cessèrent de croître. A la 37ème session, l’Assemblée générale des Nations Unies demanda au secrétariat par la Résolution A/RES/37/66 du 3 décembre 1982, paragraphe 7 du dispositif que le Secrétaire général prenne en charge les responsabilités qui lui incombaient en vertu de la Convention et des résolutions pertinentes « pour agir en tant qu’agent de la communauté internationale . . . à l’égard de laquelle il est responsable pour assurer une bonne administration. » Depuis cette résolution, l’Assemblée générale indique chaque année au secrétariat le contenu de son mandat. 3  Le juge Caminos ici honoré est un témoignage de la qualité du personnel recruté. 4  Voir J.P. Levy, op. cit., 58-62.

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Trois périodes ont jalonné les 30 ans d’existence du secrétariat qui au plan structurel a connu en 1992 des changements importants passant d’une unité indépendante, le Bureau du représentant spécial du Secrétaire général, à une unité rattachée au Bureau juridique de l’Organisation qui prit le nom de Division des affaires maritimes et du droit de la mer, connue sous le nom de DOALOS. La période de 1982 à 1994, avant l’entrée en vigueur du traité: Le secrétariat s’est attelé à assister les Etats, à mieux comprendre les règles contenues dans la Convention. Il contribua également à la préparation de la mise en place des institutions créées par elle. La période de 1994 à 2002, après l’entrée en vigueur du traité: Son travail fut axé sur la surveillance et la mise en place de moyens pour assurer une interprétation et une application uniformes des normes contenues dans la Convention. Il contribua également à la recherche de solutions pour biffer les entraves à son acceptation. La période de 2002 à nos jours est marquée par ‘l’environnementalisation’ de l’approche des problèmes relatifs aux mers et aux océans rendant plus difficile sa tâche de gardien de la Convention. Par ailleurs, le secrétariat s’est vu submergé par un accroissement exponentiel du nombre des demandes présentées à la Commission des limites du plateau continental.

Période après la conclusion de la Convention : Le Secrétariat diffuse les normes et contribue à la préparation de la mise en place des institutions créées par elle

La joie d’avoir accompli une œuvre colossale avec l’ouverture à la signature de la Convention fut ternie par le refus des grands Etats industrialisés, parmi eux les Etats-Unis, de s’y associer. Le recours au vote lors de l’adoption du texte de la Convention, imposé par ces Etats en raison des insuffisances et des imperfections de la Partie XI et des Annexes III et IV portant sur le régime des fonds marins, marqua d’une empreinte négative la Convention et contribua à minimiser l’importance de la Commission préparatoire de l’Autorité internationale des fonds marins et du Tribunal international du droit de la mer5 (ci-après 5  Sur le travail de la Commission préparatoire, voir J.P. Levy, in Espaces et Ressources Maritimes (Paris: PUF, vol. 2 (1987), vol. 3 (1988), vol. 4 (1990), vol. 5 (1991) et vol. 6 (1992). Voir aussi P. Kirsh & D. Fraser « The law of the sea Preparatory Commission after six years, Review and prospects », 26 Canadian YB of INTL Law (1988).

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dénommée la Commission préparatoire), chargée de préparer le fonctionnement de deux des trois organes établis par la Convention, la Commission des limites du plateau continental étant le troisième. Parallèlement au service et à l’assistance qu’il apporta aux travaux de la Commission préparatoire, le secrétariat prit l’initiative de porter à la connaissance des Etats la pratique qui se développait pour leur permettre d’harmoniser leur législation interne avec les règles contenues dans la Convention. Le nouveau droit de la mer, malgré ses imperfections, avait établi un code de conduite applicable aux activités s’exerçant sur les mers et les océans comme la navigation, la pêche, l’exploitation des ressources non vivantes, y compris des règles pour la protection et la préservation du milieu marin. Le nombre des ratifications augmentant et face à l’absence de celles des Etats industrialisés, un groupe d’Etats s’attela à la tâche délicate d’amender le texte avant son entrée en vigueur pour assurer l’universalité de la participation à la Convention. Durant ces discussions, le rôle du Secrétariat se trouva amoindri.

Un secrétariat acteur dans la formulation des règles durant les travaux de la Commission préparatoire

Après cette longue période de négociations intenses qui animèrent la Conférence, une lassitude s’était emparée des délégations. L’effort financier élevé demandé aux Etats était devenu trop lourd, en particulier pour les Etats en développement. Le niveau de participation tomba de 165 lors de la 11ème et dernière session de la Conférence au printemps de 1982 à 70 lors de la première réunion de la Commission préparatoire. La qualité de la représentation ne put jamais se hisser au niveau intellectuel et humain atteint par la Conférence considérée comme la plus importante négociation dans l’histoire des Nations Unies. Le secrétariat, mandaté par la résolution 37 / 66 du 3 décembre 1982, fut requis de servir « avec efficacité et diligence la tâche de préparer les textes sur lesquels chacune des Commissions spéciales établies par la Commission préparatoire devait travailler ». Aucune proposition ni aucun texte ne furent présentés à la Commission entre sessions. Le Secrétariat combla ce vide. Les sujets traités par la Commission préparatoire étaient définis dans les résolutions I et II adoptées en même temps que le texte de la Convention. Ils portaient sur l’établissement des règles, règlements et procédures de la future Autorité internationale des fonds marins (ci-après dénommée l’Autorité) de même que sur les règles de fonctionnement du futur Tribunal international du

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droit de la mer (ci-après dénommé le Tribunal) ainsi que sur la mise en place du régime des investissements préliminaires. La résolution II de la Conférence confiait à la Commission une fonction exécutive consistant à gérer le régime des investissements préliminaires. Dès 1983, la Commission chargea le Secrétaire général de recevoir les demandes d’enregistrement en qualité d’investisseurs pionniers, présentées par les Etats certificateurs. L’enregistrement en tant qu’investisseurs pionniers de la France, l’Inde, le Japon et l’URSS, sur la base des « Procédures et Directives concernant l’enregistrement des investisseurs pionniers en application de la Résolution II »6 qui eut lieu à Genève le 31 août 1984 fut confié au secrétariat. Il eut à faire face à des responsabilités inhabituelles pour lesquelles il dut innover, par exemple assurer la sécurité des documents confidentiels remis sous scellés au représentant spécial du Secrétaire général. Ils furent ouverts en présence de tous les intéressés y compris le représentant spécial qui dressa procès-verbal de l’échange. Ainsi débuta la période d’élaboration des règles pour la mise en place du régime des investisseurs pionniers pour laquelle le secrétariat joua un rôle innovateur et essentiel. Tout était nouveau pour le secrétariat dans la mise en œuvre du régime des investisseurs pionniers qui, dans bien des cas, contourna les règles contenues dans la Résolution II7. Il fallait inventer les procédures nécessaires pour enregistrer les demandes comme l’octroi des certificats une fois les demandes approuvées par la Commission. Le représentant spécial du Secrétaire général, Bernardo Zuleta, joua lui-même un rôle important de médiateur dans la recherche d’une solution au chevauchement des sites, nécessaire pour la présentation d’une demande d’enregistrement comme investisseur pionnier (Résolution II, para 5). Cet aspect des négociations portant sur un domaine au contenu essentiellement économique faisait appel à des compétences nouvelles qui jusque-là ne dominaient pas les négociations au sein des Nations Unies. L’importance des questions économiques est apparue avec la Conférence, particulièrement dans la rédaction des règles s’appliquant au régime de la Zone. Ce rôle d’inventeur et de contributeur à la formulation de solutions face à des situations nouvelles s’est atténué dans cette période importante lancée en 1990, à l’initiative du Secrétaire général Perez de Cuellar, pour parvenir à éliminer les éléments de dissension empêchant les Etats industrialisés de se joindre à la Convention et permettre l’universalisme de son acceptation. 6  Document LOS/PCN/27, 8 septembre 1983, Annexe II. 7  Voir J.P. Levy, op. cit., vol. 3, 131-134 et 147-152.

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Rôle en demi-teinte du secrétariat dans la phase des consultations du Secrétaire général

Les Etats Unis qui avaient signé l’Acte final de la Conférence, ce qui leur donnait le droit de participer en tant qu’observateur aux travaux de la Commission, avaient cependant pratiqué la politique de la chaise vide. Tous les efforts engagés depuis les années 1970 pour réformer le droit international de la mer afin de l’adapter aux profonds changements technologiques, économiques mais surtout géopolitiques d’une communauté internationale qui avait changé de visage ne pouvaient être ignorés. La Convention, fruit d’un énorme effort intellectuel, contenant des règles dont la majeure partie était le fruit d’un consensus, méritait de servir l’objectif qui lui avait été assigné, à savoir donner aux mers et aux océans un régime juridique de nature à préserver la paix et la sécurité. Le délégué de la Zambie qui présidait le groupe des 77, représentant les Etats en développement, déclara en septembre 1989, dans le cadre d’une plénière de la Commission, que le groupe était prêt à engager un dialogue pour rechercher des solutions de nature à satisfaire les objections formulées par les Etats industrialisés8. Sur la base de cette ouverture, les Etats-Unis demandèrent au Secrétaire général de prendre l’initiative de convoquer des consultations afin qu’un dialogue puisse s’ouvrir. Celles-ci devaient se tenir dans l’informalité et la confidentialité pour permettre un dialogue franc. Un papier britannique, présentant les 7 points de désaccord9 empêchant les Etats industrialisés de devenir parties à la Convention, permit aux consultations de s’engager avec la participation d’une trentaine de délégations représentées par leurs ambassadeurs pouvant présenter leur position avec autorité dans un contexte hautement politique et particulièrement délicat. Pendant deux ans, les consultations s’apparentèrent à des échanges de vue pour lesquels le secrétariat préparait de simples résumés soulignant les différentes positions sur chacun des points de désaccord. Avec l’élection du nouveau Secrétaire général Boutros Boutros Ghali en 1992, les consultations prirent un tour nouveau d’autant plus qu’approchait le nombre des 60 Etats parties nécessaires à l’entrée en vigueur de la Convention. Il fallait engager 8  Pour le texte de la déclaration du délégué de la Zambie, voir 15 Bulletin du droit de la mer, 56. 9  Les points de désaccord étaient les suivants: Le coût des institutions, l’Entreprise, le mode de prise de décisions, la Conférence de révision, la limitation de production, le fonds de compensation et les termes financiers des contrats. Par la suite furent introduits le transfert des techniques et les questions d’environnement. Ce dernier point ne fut pas retenu dans la préparation du document informel ‘le papier bateau’.

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les négociations en poursuivant un double objectif : tout d’abord, au plan du fond, proposer des solutions ayant pour effet de modifier le contenu des règles sur lesquelles un large groupe d’Etats s’était pourtant prononcé en ratifiant la Convention et ensuite trouver, au plan de la forme, la procédure qui permettrait en fait d’amender une Convention qui n’était pas entrée en vigueur. Malgré son expérience acquise pendant toutes les années de la Conférence et l’adjonction à DOALOS d’un personnel compétent en matière économique10, le rôle marginal du secrétariat se vérifia en août 1993. En effet, un document officieux, connu sous le nom de ‘papier bateau’, présenté par un groupe composé d’Etats développés et d’Etats en développement fut introduit pour servir de base aux négociations sans que le secrétariat n’en fût informé. Ce document modifiait de façon substantielle la Partie XI de la Convention. Il s’apparentait au ‘livre vert’ présenté par les USA en 1981. Il était clair qu’il était difficile d’associer le secrétariat, devenu en quelque sorte le gardien de la Convention, à une modification des règles d’une Convention pour laquelle de nombreux Etats avaient déposé leurs instruments de ratification. Parallèlement, le secrétariat tenta dans les coulisses d’offrir des solutions plus conformes aux règles du droit international mais l’histoire de cette négociation singulière devait s’écrire différemment et l’orthodoxie juridique devait être sacrifiée pour obtenir un résultat de nature à favoriser l’acceptation universelle de la Convention. Le 28 juillet 1994 fut adoptée la résolution 48/263 contenant l’Accord relatif à l’application de la Partie XI de la Convention. L’Accord reçut 42 signatures le jour de son ouverture à la signature le 29 juillet 1994. Grâce à l’Accord, la Convention entra en vigueur le 16 novembre 1994. L’objectif consistant à éliminer les imperfections pour permettre d’atteindre l’universalité du traité fut donc atteint. Il a appartenu alors au secrétariat d’assurer le respect de cette relation complexe existante entre l’Accord et la Partie XI de la Convention. Il devait également assumer les responsabilités que la Convention lui confiait, avalisées par l’Assemblée générale. A côté de ces activités liées à l’adoption de l’Accord, le secrétariat continua son travail d’informer les Etats sur la Convention et de surveiller la pratique des Etats.

10  La Branche du Bureau des Affaires économiques, « the Ocean economic and technology branch » (OETB) fut rattachée à DOALOS en 1988. Cette section avait assuré le service de la Première Commission de la Conférence chargée des négociations sur la Zone.

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Activités à l’initiative du secrétariat pour la promotion des règles et une meilleure information de la pratique des etats

Ces activités avaient pour objectif de chercher les moyens les mieux adaptés pour faire comprendre certaines dispositions complexes en raison de leur contenu technique. Dans cette optique, le secrétariat organisa en 1987 un groupe d’experts sur la question des lignes de base11. Un autre groupe d’experts se pencha en 1988 sur la recherche scientifique marine12. Enfin un des sujets les plus complexes en raison de sa haute technicité et de l’absence de précédents est celui du calcul de la limite extérieure du plateau continental sur la base de la définition de l’article 76. Un groupe d’experts de haut niveau fut organisé pour jeter un peu de lumière sur l’un des articles les plus complexes de la Convention13. Le secrétariat, afin de s’assurer que la pratique des Etats s’inscrivait dans une application cohérente de la Convention et d’encourager son application universelle, prépara de nombreuses publications14. Il convient de rappeler que lorsqu’ une pratique se développe et reçoit l’assentiment d’une grande majorité des membres de la communauté internationale, ce droit entre dans le domaine de la coutume, autre source importante du droit international. Une des premières publications fut le Bulletin du droit de la mer, publication périodique reproduisant les textes de lois ou traités envoyés par les Etats ainsi que toute autre action prise par ces derniers dans le cadre de la Convention comme les déclarations faites au moment de la ratification ou accession. Il reproduisait également des extraits de jugements. Créé en septembre 1983, quatre-vingt numéros ont été publiés en anglais à ce jour (78 en langue française)15. Cette publication avec la Bibliographie (The law of the sea, a select bibliography) restent les seules autorisées par l’Assemblée générale dans cette période de restriction financière16. 11  Le Droit de la mer, lignes de base dans la Convention des Nations Unies sur le droit de la mer, Publication des Nations Unies, No de vente F.88.V.5. 12   Le Droit de la mer, Recherche scientifique marine, Guide pour l’application des dispositions pertinentes de la Convention des Nations Unies sur le droit de la mer, Publication des Nations Unies, No de vente F.91.V.3. 13  Le Droit de la mer, Définition du Plateau continental, un examen des dispositions relatives au plateau continental dans la Convention, Publication des Nations Unies, No de vente F.93.V.16. 14  Pour la liste des publications, voir le site internet de DOALOS, www.un.org/depts/los. 15  Le bulletin est disponible en trois langues (anglais, français et espagnol) sur le site internet de la Division. 16  Voir résolution A/67/78, para. 271.

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A côté des publications dont le but était principalement d’informer les Etats de leurs actions prises pour se conformer au droit international nouvellement établi, une série d’études analytiques sur des sujets complexes méritant d’être approfondis pour permettre une meilleure compréhension fut entreprise retraçant l’historique des négociations et comblant souvent l’absence de travaux préparatoires ainsi que l’absence de documents en raison du caractère informel de nombreux travaux de la Conférence17.

Période à partir de l’entrée en vigueur : exercice des responsabilités octroyées par la Convention et actions prises pour assurer la mise en application des normes

Les normes établissant le régime juridique devant s’appliquer à toutes les activités pouvant s’exercer sur les espaces océaniques avaient acquis une certaine valeur juridique en raison des années consacrées d’abord à la préparation au sein du Comité des fonds marins et par la suite au sein de la Conférence. Des Etats avaient commencé à les incorporer dans leurs législations nationales avant l’adoption du traité. Il était donc important et nécessaire d’informer la communauté internationale des activités législatives afin de présenter la pratique qui commençait à se développer. Après l’entrée en vigueur de la Convention, la Résolution A/RES/49/ 28 du 6 décembre 1994 a énuméré l’ensemble des responsabilités assignées au secrétariat. Parmi les tâches qui lui ont été confiées, une des plus importantes consistait à aider les Etats à appliquer la Convention et à adopter une approche cohérente et uniforme à l’égard du nouveau régime établi par celle-ci18. Il devait continuer à informer les Etats ainsi que les organisations internationales des développements existant concernant les affaires maritimes et le droit de la mer ainsi que de les assister dans l’interprétation des règles contenues dans la Convention. Les organisations internationales compétentes auxquelles la Convention fait souvent référence jouent un rôle prééminent dans le développement et l’application des normes en particulier dans les domaines où celle-ci leur fait renvoi afin de réglementer des activités spécifiques.

17  Pour la liste des études, voir le site internet de DOALOS, note 14. 18  La résolution A/RES/52/26 du 26 novembre 1997 a renouvelé les responsabilités du secrétariat en les renforçant. Les résolutions sont disponibles sur le site internet de la Division, voir Supra.

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La coordination avec les organisations internationales qui est donc essentielle pour assurer la cohérence du régime juridique dans son ensemble a toujours soulevé une difficulté dialectique fondamentale inhérente à la Convention qui requiert d’une part une approche uniforme mais d’autre part traite de domaines d’activités s’exerçant sur les océans d’une façon sectorielle comme la navigation ou la pêche qui relèvent des organisations internationales compétentes comme l’OMI et la FAO respectivement. Différents types d’actions ont été accomplis par le secrétariat pour répondre aux demandes faites par l’Assemblée générale. Ces fonctions appartiennent à différentes catégories selon qu’elles procèdent de l’institutionnel ou du relationnel.

Les fonctions d’ordre institutionnel

Elles sont liées à l’établissement des trois organes créés par la Convention dont deux d’entre eux nécessitaient un travail de préparation pour démarrer leurs responsabilités et leur permettre de fonctionner. Comme nous l’avons vu plus haut, c’est la Commission préparatoire qui fut chargée d’accomplir cette tâche pour donner à l’Autorité et au Tribunal les moyens de s’établir et de commencer leurs travaux, assistée en cela par le secrétariat. Quant à la Commission des limites du plateau continental, aucune directive n’avait été établie quant à son fonctionnement sinon les bases juridiques de son établissement contenues à l’article 76 et à l’Annexe II. Le secrétariat dut donc innover pour mettre en place les modalités de travail de cet organe. Avec l’entrée en vigueur de la Convention, l’Autorité et le Tribunal purent commencer à exercer leurs responsabilités préparées en cela par la Commission préparatoire qui de ce fait cessa ses fonctions. Dans le cas de l’Autorité, le secrétariat fut chargé de convoquer à Kingston (Jamaïque), siège de cette organisation, la première session de l’Assemblée et d’établir son ordre du jour.

Les fonctions d’ordre relationnel

Elles sont contenues à l’article 319 de la Convention. En premier lieu, il remplit la fonction traditionnelle de dépositaire selon les termes de l’article 77 de la Convention de Vienne sur le droit des traités. A cette fonction s’attachent les notifications et les communications que le secrétariat doit adresser aux Etats parties qui ont trait principalement aux amendements et à la révision.

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Parmi les fonctions nouvelles qui appartiennent à celles de dépositaire, il en est une qui concerne l’application spatiale de la Convention, à savoir les espaces maritimes sur lesquels les Etats exercent leur souveraineté et leurs compétences. Le Secrétaire général est le dépositaire des cartes marines et listes spécifiant les données géodésiques des limites établissant les différentes zones sous la souveraineté ou le contrôle des Etats. Conformément aux articles 16, 47, 75, et 84 de la Convention, l’Etat côtier est tenu de donner la publicité voulue à ses cartes ou listes de coordonnées géographiques spécifiant ses lignes de base, les limites de sa mer territoriale, ses lignes de base archipélagiques, les limites de sa zone économique exclusive et de son plateau continental ainsi que les lignes de délimitation. Cette fonction est significative de la volonté des négociateurs de régler une fois pour toute les frontières maritimes des Etats en les obligeant à leur donner la publicité voulue par l’intermédiaire du Secrétaire général qui devient ainsi le conservateur en chef des frontières maritimes des Etats. Le secrétariat a développé, en plus du Bulletin du droit de la mer, une circulaire LOSIC (Law of the Sea information Circular) pour informer les Etats des dépôts reçus par le Secrétaire général ou des accords de délimitation. Celle-ci qui compte à ce jour 36 numéros n’est publiée qu’en anglais. Les limites extérieures du plateau continental, conformément à l’article 84, paragraphe 2 devront également être déposées auprès du Secrétaire général de l’Autorité. C’est au Secrétaire général de l’ONU qu’il appartient la responsabilité d’en assurer leur publication. Il est une autre fonction qui s’écarte de celle de dépositaire attribué au Secrétaire général, elle concerne le rapport à faire à tous les Etats parties, à l’Autorité et aux organisations internationales compétentes sur les questions de caractère général qui ont surgi à propos de la Convention (Article 319, paragraphe 2, lettre a)19. Depuis 1983, le secrétariat a exercé cette responsabilité en y consacrant un effort énorme pour faire en sorte que la communauté internationale fût informée d’une façon cohérente et inclusive de tous les développements concernant les mers et les océans. Pour la préparation de ce rapport général, les organisations internationales doivent y participer en envoyant leurs contributions sur les développements qu’a connus leur organisation durant l’année considérée. Cette présentation de synthèse de toutes les activités s’exerçant sur les océans respecte le principe édicté dans le préambule de la Convention par lequel « tous les problèmes des espaces marins sont étroitement liés entre 19  Ces rapports sont reproduits en six langues sur le site internet de la Division.

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eux et doivent être envisagés dans leur ensemble ». La coopération avec les institutions spécialisées dont le rôle dans l’élaboration et le développement de règles spéciales en matière de navigation, de protection de l’environnement, de conservation des ressources biologiques est primordial pour le développement harmonieux et cohérent du droit de la mer, doit non seulement se poursuivre mais s’intensifier. Il reste une dernière catégorie de tâches qu’il appartient au secrétariat d’exécuter. Elles relèvent de fonctions administratives spécifiques.

Les responsabilités d’ordre administratif

Le secrétariat exerce les responsabilités administratives qui sont celles généralement attribuées au secrétariat de conventions. Dans le cas de la Convention de Montego Bay, les responsabilités administratives étaient de deux sortes d’une part la convocation des réunions des Etats parties conformément à l’article 319, paragraphe 2, lettre e) et dans le cadre de celles-ci d’organiser l’élection des membres du Tribunal (Annexe VI, article 4) ainsi que celle des membres de la Commission des limites du plateau continental (Annexe II, article 2)20. Un des aspects novateurs de la Convention réside dans la règle du recours obligatoire au règlement des différends confiant aux Etats, conformément aux articles 287, 297 et 298, le soin de choisir, au moment de la ratification ou de l’adhésion, les instances juridictionnelles ainsi que la procédure qu’ils souhaitent voir appliquer à leurs différents de même que les domaines où ils sont habilités à écarter une telle procédure. Dans ce contexte, il est confié au Secrétaire général, en vertu de l’Annexe V prévoyant la conciliation, le soin d’établir la liste des conciliateurs, de nommer éventuellement des conciliateurs en consultation avec les parties intéressées, de recevoir des commissions de conciliation et leurs rapports et de les transmettre aux parties au différend. Enfin il reçoit des Etats les notifications de rejet de recommandations offertes par la Commission de conciliation. Selon les règles contenues à l’Annexe VII qui prévoit l’arbitrage, le Secrétaire général dresse et tient la liste d’arbitres alors que dans l’Annexe VIII, le Secrétaire général peut participer à la constitution de tribunaux spéciaux d’arbitrage en consultation avec les organisations internationales intéressées chargées de maintenir les listes d’arbitres (Annexe VIII, Article 3, lettre e). 20  Les comptes rendus des réunions des Etats parties sont disponibles sur le site internet de la Division.

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En 2002, les Nations Unies célébrèrent les 20 ans de l’ouverture à la signature de la Convention. Malgré une nette progression du nombre des Etats parties, l’adhésion aux règles contenues dans la Convention n’a toujours pas produit une application uniforme. La même observation est malheureusement toujours valide dix ans après. Lors des célébrations du trentième anniversaire, le même constat de laxisme dans l’application des règles a été maintes fois souligné par les délégués prenant la parole à la session de l­’Assemblée générale convoquée à cette occasion21. Il est important de souligner que les règles, devenues d’une grande complexité, se sont multipliées dans tous les domaines d’une façon exponentielle rendant de plus en plus difficile la capacité à pouvoir toutes les répertorier et à en préserver la cohérence d’approche. Le secrétariat s’est attelé à affronter ce nouveau défi malgré les difficultés dues à l’éparpillement des forums de négociation et à l’espace occupé par les questions d’environnement, en ajoutant à cela les restrictions financières, lot de toutes les organisations internationales.

Période de 2002 à nos jours : l’affaiblissement apparent du rôle de DOALOS avec ‘l’environnementalisation’ de l’approche des problèmes touchant aux mers et aux océans

Après la conclusion de la Convention en 1982 qui jeta les bases juridiques de la protection et de la préservation du milieu marin en harmonie avec les principes établis par la Déclaration de Stockholm (1972)22, la Conférence des Nations Unies sur l’environnement et le développement s’est réunie en 1992 à Rio23. Cette Conférence poursuivit l’objectif de lier le développement économique et social à la protection de l’environnement en y ajoutant l’idée supplémentaire de développement durable qui signifie une gestion qui optimise les bénéfices et les répartit d’une façon équitable sur une large période. Avec Rio 1992, les questions d’environnement, traitées dans la Convention à la partie XII établissant des règles générales comme des règles particulières devant protéger et préserver l’environnement marin en réponse aux principes adoptés à Stockholm, reçurent une attention spéciale. L’ère de ‘l’environnementalisation’ des affaires maritimes débuta dont les effets allaient se faire 21  Voir Doc. Off. UN, A/67/PV 49 à 51. 22  Voir publication des Nations Unies, No de vente, E.73.II.A.14. 23  Voir rapport de la Conférence des Nations Unies sur l’environnement et le développement, Rio de Janeiro, 3-14 juin 1992, publication des Nations Unies, No de vente F.93.I.8, vol. I : Résolutions adoptées par la Conférence.

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sentir quelques années plus tard rendant le travail de DOALOS plus complexe. Elle dut redéfinir son rôle en partageant ses responsabilités avec d’autres structures du secrétariat, en particulier le département de la politique de coordination et de la Commission du développement durable. Les priorités changèrent sans doute parce que pouvaient être considérés comme réglés les domaines du droit de la mer traditionnel comme la largeur des espaces maritimes et le régime qui s’y applique. Le Sommet mondial de Johannesburg en 2002 chargé d’évaluer, dix ans après Rio, les progrès accomplis dans la mise en œuvre du développement durable renouvela l’appel fait aux États de tenir compte des instruments internationaux pertinents24. Il confirma les nouvelles orientations axées sur la durabilité des ressources et la protection de l’environnement marin. Le plan d’application contenu au chapitre 17 de l’Agenda 21 adopté à Rio en 1992 avait mis particulièrement l’emphase sur la nécessité d’une coordination et d’une coopération efficaces en rappelant une fois de plus le rôle de la Convention qui constitue le cadre juridique d’ensemble pour les activités s’effectuant sur les mers et les océans. Ce souci primordial de mettre l’accent sur la coordination entre tous les acteurs a été réitéré à la Conférence des Nations Unies sur l’environnement et le développement convoquée en juin 2012 à Rio (RIO +20) qui dans sa déclaration finale a une fois de plus placé la Convention au centre de tous les développements25. Il est clair que la prééminence des questions d’environnement et de développement durable occupe désormais le devant de la scène, compliquant la tâche de DOALOS appelé à trouver un modus operandi avec les secrétariats des autres organes de l’ONU ou des institutions spécialisées ou programmes traitant de ces sujets. Devant un accroissement des sujets à traiter et la nécessité d’intensifier la coordination entre tous les acteurs, l’Assemblée générale décida de créer en 1999 le processus consultatif officieux. Le Secrétariat dut assumer le service de ce nouvel organe de l’Assemblée générale qui prit chaque année une importance plus grande.

24  Voir Rapport Sommet mondial pour le développement durable, Johannesburg, 26 août 4 septembre 2002, publication des Nations Unies, No F.03.II.A1 et rectificatif, chap. I, résolution 2, annexe, par. 32 a) etc). 25  La Déclaration finale est contenue dans la résolution de l’Assemblée générale ONU 66/288 adoptée le 27 juillet 2012 contenant le document final de la Conférence des Nations Unies sur le développement durable: « L’Avenir que nous voulons ».

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De plus, la mise en place de la Commission des limites du plateau continental entièrement servie par le secrétariat de DOALOS a également considérablement accru son travail en demandant l’apport de nouvelles compétences pour servir un organe éminemment scientifique. Toutes les autres activités exercées précédemment par DOALOS se sont maintenues auxquelles se sont ajoutées celles liées à la formation qui sont essentielles tant pour les délégués que pour développer les capacités permettant de former au droit de la mer ceux occupant des responsabilités au sein de leurs gouvernements ou départements administratifs. Le programme de coopération entre l’ONU et la Fondation Nippon du Japon est un maillon essentiel de cette activité26.

La recherche d’une amélioration dans la coopération et dans l’intégration des questions de la mer : le processus consultatif officieux

Par la résolution 54/33, du 24 novembre 1999, l’Assemblée générale des Nations Unies décidait d’établir un processus consultatif officieux ouvert à tous, ayant pour objet d’aider l’Assemblée générale à examiner chaque année l’évolution des affaires maritimes sur la base du rapport du Secrétaire général sur les océans et le droit de la mer en mettant particulièrement l’accent sur les domaines appelant un renforcement de la coordination et de la coopération inter-gouvernementales et inter-institutionnelles. Les traités ou conventions qui se sont multipliés ne sont plus seuls pour réglementer les relations entre Etats. Ils côtoient des instruments politiques de nature volontaire adoptés dans le but d’encadrer l’action des Etats et orienter leurs comportements. Ces instruments relèvent du droit dit programmatoire. L’Etat est désormais astreint de revoir sans cesse ses positions au sein des différentes enceintes où sont débattus des sujets qui appellent des solutions de nature à mettre en pratique les engagements juridiques préalablement pris. Quatorze réunions du Processus consultatif se sont tenues jusqu’à ce jour. Elles ont porté sur des sujets très variés comme la pêche illégale, non réglementée et non déclarée et la science au service du développement durable27; le rôle central de la coopération et de la coordination régionales28; les

26  Les différentes activités de formation sont énumérées sur le site internet de la Division. 27  Voir rapport du Processus consultatif, document Nations Unies, A/56/121 (2001). 28  Voir rapport du Processus consultatif, document Nations Unies, A/57/80 (2002).

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écosystèmes vulnérables29; le développement durable, les progrès réalisés et les lacunes à combler dans la mise en œuvre des textes issus des grands sommets30. L’acidification des océans occupa les délégués lors de la 14ème session en 2013. Le secrétariat de DOALOS eut à s’imposer pour servir cet organe. En effet, si une grande majorité de délégations souhaitait voir DOALOS servir ce nouvel organe, le secrétariat du développement durable considérait qu’il lui appartenait d’en avoir la responsabilité. Un compromis fut trouvé par lequel les deux secrétariats exerceraient cette fonction en coopération. DOALOS joua néanmoins le rôle essentiel fort de son expérience et de ses connaissances portant sur tous les aspects des questions des mers et des océans pour lesquels il était demandé de promouvoir une gestion intégrée. Le service du processus consultatif a mis une fois de plus en lumière la nécessité d’une meilleure coordination entre les différents secrétariats non seulement au sein de l’ONU mais aussi entre les organisations internationales compétentes en matière d’affaires de la mer. La nécessité d’une coopération et d’une coordination inter-organisations s’était vue reconnue par la mise en place en 1993 du Sous-comité des Océans et des Zones Côtières (SOCA) du Comité Administratif de la Coordination (CAC), mécanisme chargé de coordonner les programmes des institutions spécialisées du système des Nations Unies. Il comptait, mis à part DOALOS et CSD, organes de l’ONU, des représentants de la FAO, l’OMM, l’OMI, l’UNESCO, la COI, le PNUE, l’UIT, l’AIEA, le PNUD et la Banque mondiale. En 2001, après une profonde réforme engagée en 1999 et 2000 pour revoir le CAC et ses méthodes de travail, le Secrétaire général supprima le SOCA. Par la résolution 57/141, les États Membres ont invité le Secrétaire général à établir un mécanisme de coordination inter-institutions efficace, transparent et régulier dont les trois fonctions essentielles seraient: a) l’établissement de réseaux réguliers au niveau des experts pour la coordination courante des activités en cours et la gestion de projets conjoints ; b) la formulation de ripostes, à l’échelle du système, aux questions nouvelles que repèrent les organes, les institutions ou les programmes intergouvernementaux compétents, par le biais d’arrangements adaptés aux caractéristiques propres de chaque question et c) la vérification de l’exhaustivité des activités et de la cohésion stratégique, fonction qui relève en dernier lieu du Conseil des chefs de Secrétariat des organismes des Nations Unies, avec l’appui du Comité de haut niveau.

29  Voir rapport du Processus consultatif, document Nations Unies, A/58/95 (2003). 30  Voir rapport du Processus consultatif, document Nations Unies, A/66/186 (2011).

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Le 31 octobre 2003, le Conseil des chefs de Secrétariat a créé un nouveau mécanisme de coordination inter-institutions des Nations Unies pour les questions relatives aux océans et aux zones côtières, baptisé ONU-océans comprenant les 12 mêmes organismes, fonds, programmes et organes des Nations Unies que comprenait SOCA ayant des compétences sur les questions relatives aux océans. Dix ans après sa création, cette structure appelée à renforcer la coordination entre institutions n’a pu remplir les fonctions escomptées. Il apparaît donc que seule une coopération ponctuelle puisse valablement exister. On peut citer à titre d’exemple celle entre la COI/UNESCO et le PNUE qui ont collaboré à la rédaction d’un rapport intitulé « Monts sous-marins, coraux en eaux profondes et pêches »31. Les demandes faites à la Commission des limites du plateau continental dont DOALOS assure le service ont accru considérablement les responsabilités du secrétariat en lui confiant des activités qui réclamaient des compétences particulières.

L’énorme tâche du secrétariat au service de la Commission des limites du plateau continental32

La fonction principale de la Commission des limites du plateau continental consiste, conformément à l’Annexe II de la Convention, à examiner les données et autres renseignements présentés par les États côtiers concernant le tracé des limites extérieures du plateau continental quand ce plateau s’étend au-delà des 200 milles marins. Elle peut également donner des avis scientifiques et techniques en la matière aux États côtiers qui en font la demande (art. 3 de l’Annexe II). Le caractère innovateur des travaux de la Commission a demandé au Secrétariat de faire preuve de créativité, de méthode et d’adaptation. Par ailleurs, la haute technicité des données à traiter avait imposé de créer au sein de DOALOS des infrastructures de nature à permettre aux membres de la Commission d’analyser les données scientifiques et techniques soumises par les États. Il existe aujourd’hui au sein de DOALOS trois laboratoires techniques. 31  Voir Seamounts, deep-sea corals and fisheries, Regional Sea Report and studies, No 183, 2006. 32  Voir Annick de Marffy-Mantuano : La fixation des dernières limites maritimes : le rôle de la Commission des limites du plateau continental, in « La mer et son droit », Mélanges offerts, ed. Laurent Lucchini & Jean Pierre Queneudec (Paris: Pedone, 2003), 399-419.

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Les deux premières sessions ont été consacrées à l’examen des articles du projet de règlement intérieur. Lors de sa deuxième session, la Commission, après de longs débats, adopta la majorité des articles du projet de règlement intérieur préparé par le secrétariat (SPLOS/CLCS/WP.1). Toutefois, les articles traitant des différends entre États concernant la délimitation des frontières maritimes, de la question de la confidentialité des données, ainsi que de la protection des membres de la Commission contre toute responsabilité financière pouvant résulter d’éventuelles allégations de violation des règles de confidentialité, méritaient de plus amples réflexions avant de parvenir à une solution acceptable par tous. Face à la nouveauté des travaux de cet organe et les difficultés rencontrées par les Etats pour préparer leurs demandes, le secrétariat offrit une assistance en terme de substance et d’ordre financier. La question de la formation fut traitée en priorité à la sixième session, l’objectif étant de mieux faire comprendre les dispositions de l’article 76 de la Convention ainsi que les Directives, en tenant compte en particulier des besoins des pays en développement. La Commission par ailleurs a prié le secrétariat de rédiger un « manuel de formation à l’établissement des demandes à soumettre à la Commission des limites du plateau continental » en collaboration avec les membres de la Commission, pour faciliter la préparation des demandes des États en développement (voir CLCS/29, par. 15). Deux fonds d’affectation spéciale ont été créés par la résolution 55/7 de l’Assemblée générale (30 octobre 2000). Les modalités d’accès à ces fonds sont expliquées sur le site internet de DOALOS. La première demande fut soumise à la Commission le 20 décembre 2001 par la Fédération de Russie en application du paragraphe 8 de l’article 76 de la Convention. Conformément à l’article 49 du Règlement intérieur de la Commission (CLSC/3/Rev.4 et Corr.1), le Secrétaire général adressa une note verbale à tous les États Membres de l’ONU et aux États parties à la Convention, qui contenait la liste des coordonnées géographiques ainsi que les cartes montrant les limites extérieures du plateau continental proposées, figurent dans la communication russe. Le Secrétariat, confronté pour la première fois à une demande, s’occupa tout d’abord à établir un système pour son enregistrement. Il procéda à la vérification que tous les documents requis avaient été soumis, en particulier le nombre de copies exigé. Il s’employa par ailleurs à consigner dans un livre spécialement ouvert à cet effet, tous les feuillets soumis. L’ensemble de toute cette documentation fut alors envoyé à la traduction. Cette première demande, extrêmement complexe par son application et son contenu, s’est avérée un test très important pour l’application des règles

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élaborées par la Commission sans l’appui d’aucun précédent. La Commission comme le secrétariat ont tiré les leçons de cette première expérience pour mieux affronter les demandes à venir. A ce jour 66 demandes ont été soumises et 18 ont fait l’objet d’une recommandation de la Commission permettant à ces Etats d’étendre les limites de leur plateau continental au-delà des 200 milles marins. L’avènement de la prééminence des questions environnementales et l’aggravation de la sectorialisation dans l’approche des questions de la mer dont la complexité va en s’intensifiant, ont donné un rôle moins apparent à DOALOS. La Division reste néanmoins le maillon essentiel car elle est seule à pouvoir appréhender, dans une approche intégrée, toutes les questions concernant les mers et les océans y incorporant tous les aspects : politiques, économiques, scientifiques, techniques et juridiques qui les nourrissent. La préparation annuelle du rapport du Secrétaire général présenté à l’Assemblée générale sous le point ‘océan et droit de la mer’ est une preuve de la capacité inégalée de DOALOS de construire une synthèse cohérente et inclusive de tous les développements portant sur les affaires maritimes. Le secrétariat de DOALOS doit continuer son rôle essentiel de gardien de la Convention: la Constitution des océans33. Les résolutions annuelles de l’Assemblée générale le renforcent dans cette responsabilité. Comme l’a rappelé le Secrétaire général Ban Ki-Moon : « en tant que Constitution des océans, la Convention forme une base solide et un document permanent qui assure l’ordre, la stabilité, la prévisibilité et la sécurité sur la base de l’état de droit. » Face à la fragmentation de l’approche des questions océaniques et compte tenu du fait que les États restent les acteurs de la société internationale, le secrétariat avec son expérience, son professionnalisme et l’objectivité avec laquelle il a exercé ses responsabilités demeure le meilleur garant pour la promotion des règles gouvernant les océans et un appui réaliste à leurs développements ordonnancés, contribuant ainsi à la paix et à la stabilité sur les espaces marins, notre source de vie. 33  Voir doc ONU A/67/PV.49.

Chapter 11

The Contributions of Latin America to the Implementation of the UNCLOS Luis Valencia-Rodríguez

The So-called Classic Law of the Sea

The development of the Law of the Sea is related in its origins to the consideration and establishment of the concepts of the liberty of the seas and the breadth of the territorial sea, whose name was also ‘maritime belt’, ‘marginal sea’, or ‘territorial waters’, that the States claimed to exercise sovereignty over a belt of sea adjacent to their coastlines, especially to protect their territories. For the Roman Cayo, the sea was res nullius, while another Roman Celso maintained that it was res communis, and these two schools of thought led to consider that the waters of the sea ought to be free, as free as the air, to facilitate the contacts of peoples. Later, the Spaniard Francisco de Vitoria proclaimed that the sea had to be a means for communication among different peoples. And other Spaniard Vasquez de Menchaca y Castro maintained that the use of the seas could not harm anybody, and consequently it was not necessary to establish limitations. The problem arose when politicians and jurists tried to determine the measurement of the belt adjacent to the territory of the State. During the XIV and XV centuries, the idea of the ‘reach of sight’ was proposed by some jurists, but it was impossible to fix a distant of the sight reaching. The Dutch jurist Cornelis van Bynkershoek, in a work published in 1702 (De Dominio Maris) propounded the doctrine that the power of the territorial sovereignty extended to vessels within the range of cannon mounted on the shore. This proposal had a basis on the maxim: Imperium terrae finiri ubi finitur armorum potestas. The doctrine rested on the control of the actual guns of ports and fortresses over adjacent waters. However, in the latter half of the eighteenth century several States laid down limits of belts for purposes of customs or fishery control in legislation and treaties. Accordingly, many States extended their sovereignty up to four miles and even more. As the ‘cannon-shot’ was by no means a definite criterion, suggestions for setting up a convenient standard, or rather a substitute, began to appear. In 1782, the Italian writer Galiani proposed three miles, or one marine league, and so

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the three-mile limit began to be adopted by most States. A significant aspect of the development of the law was the intimate relation between claims to jurisdiction for particular purposes over the high seas, and the extension of sovereignty to a maritime belt. In spite that the three-mile rule had at that time general acceptance, fairly soon developed pronouncements of assertions of sovereignty associated, among other things, to neutrality and fishery activities. At the beginning of XVII century, the Dutch Company of Eastern Indies, seriously concerned by the expansion of English vessels in the sea that affected its commercial interests, charged to Hugo Grotio (Hugo de Groot, Grotius), a subject of the maritime power at that time who also was at the service of the Dutch Company, to prepare a theory or a text to defend the Company against those dangers. Grotio published then in 1609 the chapter called De mare liberum, a part of his treatise De Jure Praedae, in which he proclaimed the principle of the liberty of the seas, being considered from the navigation point of view or from fisheries. But he did not advanced any proposal on precise limits for the maritime belt belonging to the coastal State. But now the principle defended by Grotio affected the British interests, and John Selden, a well-known jurist published in 1635 his treatise Mare Clausum, proposing the theory aiming at the territorialization of the sea, proposal that was enthusiastically adopted by the King Charles I. But when the British vessels began to expand the British supremacy in the sea, the theory of Selden was gradually disregarded. The antagonism between the principle of the liberty of the seas, promoted by Grotio, and the theory of the closed sea, defended by Selden, was forgotten, and new basic notions appeared: high sea, territorial sea, internal waters and adjacent zones. The United States was one of the first States to adopt the three-mile rule in a diplomatic note addressed by the then Secretary of State Jefferson to his colleagues of Great Britain and France. During the XIX century some bilateral agreements adopted this rule. But other States established different distances. In 1889 in a treaty signed by Bolivia, Paraguay and Uruguay the distance of 5 miles was adopted. But in other instruments of the same period, the distances adopted were between 9 and 20 miles. Wolfgang Friedman summarizes this situation as follows: As a general principle of international law, the liberty of the seas has less than three and a half centuries. It was logical that this doctrine appeared during the exploration era, when Columbus, Cabot, Vasco da Gama, Raleigh, Drake, Magalhaes and others began to unite Continents of America, Asia, Australia and later the interior of Africa, with Europe.

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The classical legal battle was maintained by John Selden, who, as an Englishman of the first part of XVII century, wanted to protect the interest of a country that was not a naval power propounding a close sea, and a Dutch, Hugo Grotio, who promoted an open sea for his then prevailing maritime power that was his country. It is interesting to note that when England gained later the naval superiority, became the supreme champion of the liberty of the seas.1 It is important to note that the concept of the liberty of the seas did not arise as a pure law investigation, but as a consequence of very pragmatic reasons and political interest of the then great maritime powers. Anyhow the concepts of liberty of open seas and the establishment of the territorial sea were generally advanced and accepted. The rule proposed by Galiani (1782), giving a practical value to the Bynkershoek theory, referring to the adoption of the cannon shot that, according to the artillery of that time reached to one marine league or three nautical miles, ceased for the moment the claims for more extension of the territorial sea. However, a little later, the same great powers began to claim other extensions based on arguments not only on military defence of the territory but other reasons such levy of customs tariffs, sanitary regulations, immigration, fisheries. These reasons were the basis for proposing the contiguous zone.

The Hague Codification Conference

The Institute of International Law recognized in its meeting in Paris, 1894, that the real reach of cannons exceeded the three-mile limit, and established the breath of the territorial sea in 6 miles. However, in its meeting of Stockholm and Vienna (1924 and 1926, respectively) adopted the three-mile norm. But it is convenient to recall that the Rapporteur proposed an extension of six miles and a respected Portuguese jurist, Professor Magalhaes suggested twelve miles. The German Society of International Law, while recognizing the extension of three miles for the territorial sea, promoted the existence of another threemile contiguous zone for purposes of administration. The Research Committee of the Harvard University, in its well-known Code of International Law, admitted the three-mile rule, but at the same time suggested another zone, whose extension was not fixed and in which measures related to customs, police and sanitation supervision should be applied. The same distance was likewise 1  Wolfgang Friedman, The future of the oceans (New York: Georges Brazilier, 1971), 30.

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adopted in 1926 by the International Law Association of Japan. The subject was also discussed by the American Institute of International Law at its various meetings, but it did not agree on any specific definite limit. In view of the divergence of doctrines relating to territorial waters, the League of Nations endeavoured to negotiate an international Convention on the subject through the Committee for the codification of international law. After examining many topics, the Committee came to the conclusion that the laws of territorial waters, amongst two other subjects, were ripe for codification. It took several years to prepare the ground. After receiving the official views of the respective Governments to a ‘Questionnaire’ of the experts, a Committee of Experts (five members) presented in September 1929 a document entitled ‘Basis of Discussion’. Ultimately, an international Conference was convened by the Council of the League at The Hague from March 13 to April 12, 1930”. Forty eight States were represented. From Latin America, Brazil, Colombia, Cuba, Chile, El Salvador, Mexico, Nicaragua, Peru and Uruguay (9 States) attended. The Second Commission was in charge of the most important issues: limit of the territorial waters, juridical nature of these waters, rights of coastal states on territorial waters, liberty of navigation, base lines, contiguous zone. The chief difficulties in reaching an agreement related to: (i) the breadth of the territorial sea (which expression the Committee preferred to territorial waters); (ii) the right of a State to take measures outside this breadth in an adjacent and contiguous area; and (iii) the definition of the nature of the rights which States are entitled to exercise over the territorial sea.2 At the Conference the proposal was made to establish a three-mile limit as a maximum, but there were some States which objected. In fact, a number of States were in favour of not fixing a uniform distance for all purposes and for all countries. Then it was proposed to allow various exceptions to the general rule and to accept the principle of a zone on the high seas contiguous to the territorial sea in which the coastal State could exercise the control necessary to prevent the infringement of its customs and sanitary regulations or any interference with its security by foreign vessels. Twelve miles from the coast was the limit here proposed. Great Britain, Canada, Australia, South Africa, India, the United States, Brazil, Japan and Sweden were opposed to the establishment of any contiguous zone. In the result, no agreement was found to be possible on any of these points. It was possible to observe that in that opportunity an important change in the attitude of States concerning the breadth of the territorial sea had been 2  John Colombos, International Law of the Sea (London: Longmans, Green & Co, Ltd, 1967), 103–104.

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produced. Out of the 40 participating States, only 9 were in favour of territorial sea of three miles; 10 accepted it joint with a contiguous zone whose extension should be later determined; 16 States expressed that a territorial sea of three miles with or without a contiguous zone was unacceptable; and two countries (Russia and Denmark) abstained. Out of the 9 States that favoured the treemile limit, the United States, Japan and the Netherlands expressed that they supported that distant, but for certain purposes a more extensive distant had to be adopted. Consequently, the exclusive defendants of the three miles were reduced only to six and these six were all members of the British Empire. The conclusions arisen from the documentation of The Hague Conference indicated the following: (i) any State fixed the extension of the territorial sea in less than three miles; (ii) the number of States that according to their legislation have established special coastal zones has increase; (iii) the extension of those special coastal zones was not identical; (iv) the interests on which the establishment of those special zones were based were also different; and (v) the external limit of the special coastal zones was not fixed unanimously. The Hague Conference, therefore, could not established a definite rule on the extension of the territorial sea, and the only conclusion that could be accounted was that such a limit had to be fixed in more than three miles, and that the maximum extension of three miles could not receive approval among the majority of States. In the same Conference, expressions were voiced on the justification for the coastal State to extend its territorial sea under its internal legislation: (i) Poland, for instance, submitted a proposal aimed at enable the coastal States of a maritime region to fix by common accord the extension of the territorial sea, determination that should be respected by all; (ii) the extension of the territorial sea could not be fixed as an absolute rule, but in conformity with the needs of each State, without violating recognized rights of other peoples; (iii) the representative of Argentina promoted the idea that the territorial sea should be changed according to the configuration of the coast; and (iv) Sweden proposed that, in the absence of an international agreement to limit the extension of the territorial sea, each State could, by itself, fixed ration­ ally the limit of its own territorial waters. Gidel3 maintained that never “has existed nor exists to-day a positive norm of international law that fixes with general character the breadth of the territorial sea”. For this author, the so called ‘three-mile rule’ was the principal 3  Gilbert Gidel, Le droit international public de la mer, tome III (Paris: Sirey, 1934), 151 and subsequent.

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victim of the Conference. Consequently, in view of the diversity of theories on the extension of the territorial sea, it was proper to recognize as a criterion in force the right of the coastal State to fix such breadth. According to the opinion of various scholars, in those cases, the State acts as a substitute organ for the international community. The same thesis has been maintained by the Chilean jurist Alejandro Alvarez in his dissenting opinion in the AngloNorwegian Fisheries Case: a)

b)

Taking into account the great variety of geographic and economic conditions should not be possible to establish a uniform norm of international law on the extension of the territorial sea, as neither exists any uniform norm in relation to bays and straits; Each State has the right to determine the extension of its maritime domain on the condition that it has to do rationally; that it could be able to maintain supervision over the zone and fulfill the duties on it that should be imposed upon the State; that do not violate acquired rights by other nations; that do not infringe general interests or perpetrate any abuse of law.

Although the Conference was unable to agree on a treaty, it was successful in preparing a draft on “The Legal Status of the Territorial Sea”, which was embodied in the Final Act of the Conference. A resolution was adopted requesting the “Council of the League of Nations to transmit the Report and annexes to the various Governments and that they be invited to continue, in the light of the discussions of the Conference, their study of the questions of the breadth of the territorial sea and questions connected therewith and to endeavour to discover means of facilitating the work of codification”.

The Consultative Meeting of Panama

At the beginning of the Second World War, President Roosevelt signed a Decree, on 5 September 1939, according to which he ordered the American ships of war to patrol around the coasts of the United States and the Western Indies at a distant of 200 miles, as a measure of protection and security. The 200 miles was the reach of radar waves of that time. The next step was the convening of the Consultative Meeting of American Republics, which was held in Panama (23 September–3 October, 1939).

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This meeting was convened under the Agreements adopted at the InterAmerican Conference for the Maintenance of Peace held in Buenos Aires in 1936, and the Eighth International Conference of American States which met in Lima in 1938. On 23 October 1939, the Consultative Meeting recalled that during the World War of 1914–1918: the Governments of Argentina, Brazil, Chile, Colombia, Ecuador and Peru advanced, or supported, individual proposals providing in principle a Declaration by the American Republics that the belligerent nations must refrain from committing hostile acts within a reasonable distance from their shores. [. . .] To this end it is essential as a measure of necessity to adopt immediately provisions based on the above-mentioned precedents for safeguarding of such interests in order to avoid repetition of the damages and sufferings sustained by the American nations and by their citizens in the war 1914–1918. Accordingly, they adopted the Declaration of Panama, with the purpose “to provide for the establishment, in the light of the potential danger of the spread of the hostilities arising out of the war in progress, of a protective belt” encircling the American continent, and varying in parts between 300 and 1.200 miles wide. According to the Declaration, this belt was to cover . . . the waters adjacent to the American continent, which they regard as of primary concern and direct utility in their relations {of the American States}, free from the commission of any hostile act, whether such hostile act be attempted or made from land, sea or air (Article 1) This was a regional (unilateral) extension of jurisdiction on the high seas for a specific purpose, based on the principle of the inherent right of self-defense and self-protection. There were opinions that claimed that the Panama Declaration was close to the concept of territorial sea in the sense that it tried to delimit a sui generis territorial sea for the American continent. Cordell Welles, former Secretary of State, has recalled that the Declaration was President Roosevelt’s idea. The same Welles has admitted that due to the difficulties in its enforcement the idea of this zone was practically abandoned.4

4  Cordell Wells, The Memoirs of Cordell Welles, vol. 1 (New York, 1948), 689–690.

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Truman Proclamations and the Latin American Reaction5

The United States was one of the strongest supporters of the three nautical miles territorial sea doctrine. However, in 1945 it opened an era of extensive maritime claims. President Truman issued two proclamations in 1945. According to Proclamation 2667 of September 28, 1945, it established the Policy of the United States with Respect to the National Resources of the Subsoil and Sea Bed of the Continental Shelf. The Proclamation was founded on WHEREAS the Government of the United States of America, aware of the long range world-wide need of new sources of petroleum and other minerals holds the view that efforts to discover and make available new supplies of these resources should be encouraged; and . . . WHEREAS it is the view of the Government of the United States that the exercise of jurisdiction over the natural resources of the subsoil of the continental shelf by the contiguous nation is reasonable and just, since the effectiveness of measures to utilize or conserve these resources would be contingent upon cooperation from the shore, since the continental shelf may be regarded as an extension of the land-mass of the coastal nation and thus naturally appurtenant to it, since these resources frequently form a seaward extension of a pool or deposit lying within the territory, and since self-protection compels the coastal nation to keep close watch over activities off its shores which are of the nature necessary for utilization of these resources. These were basis for President Truman to proclaim the following policy: Having concern for the urgency of conserving and prudently utilizing its natural resources, the Government of the United States regards the natural resources of the subsoil and sea bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States, subject to jurisdiction and control. In cases where the continental shelf extends to the shores of another State, or is shared with and adjacent States, the boundary shall be determined by the United States and the State concerned in accordance with equitable principles. The character as high 5  Dupuy-Vignes, A Handbook on the New Law of the Sea, vol. 5 (Leiden: Martinus Nijhoff Publishers, 1991), 453–455.

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seas of the waters above the continental shelf and the right to their free and unimpeded navigation are in no way thus affected. Proclamation 2668 was founded in WHEREAS there is an urgent need to protect coastal fishery resources from destructive exploitation, having due regard to conditions peculiar to each region and situation and to the special rights and equities of the coastal State and of any other State which may have established a legitimate interest herein; And upon this basis, President Truman proclaimed the following policy of the United States with respect to coastal fisheries in certain areas of the high seas: In view of the pressing need for conservation and protection of fishery resources, the Government of the United States regards it as proper to establish conservation zones in those areas of the high seas contiguous to the coasts of the United States wherein fishing activities have been or in the future may be developed and maintained on a substantial scale. Where such activities have been or shall hereafter be developed and maintained by its nationals alone, the United States regards it as proper to establish explicitly bounded conservation zones in which fishing activities shall be subject to the regulation and control of the United States. Where such activities have been or shall hereafter be legitimately developed and maintained jointly by nationals of the United States and nationals of other States, explicitly bounded conservation zones may be established under agreements between the United States and such other States, and all fishing activities in such zones shall be subject to regulation and control as provided in such agreements. The right of any State to establish conservation zones off its shores in accordance with the above principles is concerned, provided that corresponding recognition is given to any fishing interests of nationals of the United States which may exist in such areas. The character of high seas of the areas in which such conservation zones are established and the right to their free and unimpeded navigation are in no way thus affected. It is important to note that the second Proclamation (2668) was never applied. Nevertheless, these proclamations marked a turning-point in the law of the sea by encouraging other States to establish extensive maritime claims, both unilateral and regional.

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Latin American Unilateral Claims

Before the 1958 Law of the Sea Conference The Mexican Executive, in its proposed 1945 amendment to Article 27 of the Constitution held that: “direct dominion over the continental shelf and the submarine terraces belongs to the nation. . . the waters of the seas over the continental shelf and submarine terraces are also the property of the nation . . .”. In 1946, Argentina issued Decree No. 14.708 Concerning National Sovereignty over the Epicontinental Sea and the Continental Shelf, which described the waters over the shelf—the epicontinental sea—as: “transitory zones of mineral reserves . . . characterized by extraordinary biological activity, owing to the influence of the sunlight, which stimulates plant life (as exemplified in algae, mosses, etc) and the life of innumerable species of animals, both susceptible of industrial utilization”. Then, in an obvious misconstruction of the Truman Proclamation, Argentine declared that: whereas . . . the Governments of the United States and Mexico have issued declarations asserting the sovereignty of each of the two countries over the respective peripheral epicontinental seas and continental shelves . . . it is hereby declared that the Epicontinental Sea and Continental Shelf are subject to the sovereign power of the Nation. This declaration did, however, specify that the character of the waters in question remained unaffected for the purpose of free navigation. Panama in its 1946 Constitution proclaimed State ownership over both the territorial sea and the shelf. However, Decree 449 (1946) proclaimed “national jurisdiction for the purpose of fishing in general” over its territorial sea and the superjacent waters of the shelf. All fisheries, which it considered a ‘national product’ within these limits, were subjected to the provisions of national legislation. On May 1, 1947, the Congress of Nicaragua adopted a declaration extending its national sovereignty over the adjacent shelf which, on the Atlantic side is the most extensive in Central America. Chile was the first State to establish a 200 nautical- mile maritime zone. Through the Presidential Declaration of 23 June 1947, it proclaimed “national sovereignty (a) over its shelf and the resources therein;” and (b) over “the seas adjacent to its coasts whatever may be its depths, and within those limits necessary in order to reserve, protect, preserve, and exploit the natural resources of whatever nature found on, within, and below the said seas, placing within the control of the government especially all fisheries and whaling activities with the object of preventing the exploitation of natural riches of this kind to the detriment of the inhabitants of Chile and to prevent the spoiling or

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destruction of the said riches to the detriment of the country and the American continent. Chile stated that its Declaration did not “disregard the similar legitimate rights of other States on the basis of reciprocity, [nor did it] affect the rights of free navigation on the high seas”. The breadth of the zone was fixed at 200 nautical miles, without prejudice to future enlargements or modifications. This limit, it claimed, was consistent with the security zone adopted in the 1939 Declaration of Panama. Under Presidential Decree No. 781, Peru extended its national sovereignty and jurisdiction to the submarine areas regardless of the depth of the superjacent waters, and to the adjacent sea to the extent necessary for the preservation, protection, conservation and exploitation of the natural wealth and resources therein. The width of the zone was 200 nautical miles, within which the right of free navigation of all States would not suffer ‘any prejudice’ in accordance with international law. By Decree 116 (1948) Costa Rica proclaimed its “national sovereignty over the seas adjacent to the continental and insular coasts of the national territory, whatever their depth, and to extent necessary to protect, conserve, and utilize the natural resources and wealth”. This Decree also claimed: “the protection and control of the State . . . over all the sea included within the perimeter formed by the coasts and by a mathematical parallel, projected out to the sea at a distance of 200 maritime miles”. The Decree was revised by Legislative Decree 803 (1949), which changed the expression ‘national sovereignty’ to ‘rights and interests of Costa Rica’ and the word ‘control’ applicable to the 200mile zone was deleted. The 1950 Constitution of El Salvador established a 200 nautical miles claim. “The territory of the Republic within its present boundaries is irreducible. It includes the adjacent sea to a distance of 200 sea miles from the lowwater line and the corresponding air space, subsoil and continental shelf”. However, within this zone freedom of navigation was not affected. The inclusion of the ‘corresponding air space’ was a new variation not found in the previous claims. This constitutional provision with regard to fishing and marine hunting was implemented by means of Law No. 1961 (1955). Similarly, Honduras passed Legislative Decree No. 25 (1951) which extended national sovereignty over the shelf and ‘the waters covering it’, at whatever depth it might be found and whatever its extent might be; it claimed full, inalienable, and imprescriptible dominion over all the resources which were found in the area . . . Brazil, in its Decree 1098, on 25 March 1970, expressed that the “special interest of the coastal State in the maintenance of productivity of living resources

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of maritime zones adjacent to the coast is recognized by international law” and that “such an interest can only be efficiently protected by the exercise inherent to the concept of territorial sea”. According to Article 1 of this Decree, “the territorial sea of Brazil comprises a zone of 200 miles-breath, measured from the low-water line along the coast . . .”. This sovereignty comprises “the aerial space over the territorial sea as well as the bed and subsoil of this sea”. Vessels of all nations enjoy the right of innocent passage. Most of the above claims went beyond the Truman Proclamations in at least two respects: they undertook to effect a categorical extension of sovereignty over the continental shelf and sea bed, and over the superjacent waters. These differences reflect the divergent approaches to the problem of maritime jurisdiction. The Truman Proclamation on the shelf only referred to the natural resources of its shelf as appertaining to the United States. The Truman Proclamation, in attempting to establish fishing conservation zones in areas of the high seas contiguous to its coasts, made no reference to the shelf, but proceeded on a general theory of the right of a coastal State to protect its contiguous fisheries. The Latin American States, however, sought to achieve their objectives through a single comprehensive claim over the shelf and its superjacent waters, an assertion of sovereignty which went beyond anything put forward in either the Truman Proclamations and revived the early formulations of the shelf theory. The above-mentioned Latin American claims were challenged generally on the grounds that they violated the freedom of the high seas. The United States held that these claims appeared to be “at variance with the generally accepted principles of international law” and “reserved the rights and interests of the United States so far as concerned any effects” of these decrees or of any measures designed to put into operation. In its view, the Argentine declaration, for example, asserted sovereignty over the shelf and the seas adjacent to the coasts beyond generally accepted limits of the territorial sea and, with respect to fishing, it failed to accord recognition to the United States’ rights and interests in the high seas off the Argentine coast.

Declaration of Santiago (Declaration on the Maritime Zone) 18 August 1952

It was certain that the Latin American countries were determined exclusively to control and exploit the offshore marine resources. Unable to do this under the traditional concepts of the law of the sea, they claimed sovereignty over areas of the sea with the purpose of exercise certain functions of this

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sovereignty, primarily the exclusive control and exploitation of fishing. Chile, fearing the offshore whaling operation of European fishing fleets, began consultations with its neighbours in order to muster support for this position. Both Ecuador and Peru offered support, albeit for different reasons, as their whaling rarely took place beyond 25 nautical miles from the shore. Nevertheless, they were keen to protect their fishing fleets, as the prospect of the United States tuna fishing in their waters was growing. The three States met in Santiago and signed the Declaration on the Maritime Zone (18 August 1952) which they subsequently ratified and which was acceded to by Costa Rica in 1955 and Colombia in 1980. The text of the Declaration is the following: 1. 2. 3.

Governments have the obligation of securing the necessary welfare conditions for their peoples, and provide them with the means for their economic development. Consequently, it is their duty to preserve and protect their natural resources, regulating their employment, in order to obtain the best advantages for their respective countries. It is also, therefore, their duty to impede that the exploitation of such resources beyond their field of jurisdiction may threat the existence, integrity, and preservation of such resources, causing a deleterious effect on their peoples that, due to their geographic position, rely on the vital and irreplaceable source of welfare and economic resources provided by the sea.

Because of the aforementioned, the Governments of Chile, Ecuador, and Peru, committed to preserve and secure for their respective peoples the natural resources of the sea bathing their coasts, hereby state the following Declaration I)

The previous territorial sea and contiguous zone extension, due to the geological and biological factors conditioning the existence, preservation, and development of the flora and fauna of the waters bathing the coasts of the High Contracting Parties, are considered insufficient to preserve, develop, and employ the resources to which the coastal countries feel they are entitled.

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II) Consequently, the Governments of Chile, Ecuador, and Peru state as, a regulation of their international maritime policy, their exclusive sovereignty and jurisdiction over the sea bathing the coasts of their respective countries, up to a minimal distance of 200 nautical miles from their coasts. III) The exclusive jurisdiction and sovereignty over the aforementioned maritime zone also includes the exclusive sovereignty and jurisdiction over the corresponding soil and subsoil. IV) In the case of insular territories, the 200-nautical-mile zone will be applicable to the all-out sea circling the island or group of islands. Should any island, or group of islands, belonging to one of the High Contracting Parties, lie within the range of the 200 nautical miles of the general maritime zone corresponding to another of the High Contracting Parties, the maritime zone of such island, or group of islands, will be limited by the parallel of the point where the land border of the respective State touches the sea. V) This Declaration does not imply ignoring the necessary limitations to the exercise of sovereignty and jurisdiction, as established by the International Law, on behalf of innocent and inoffensive passage for vessels of all nations through such zone. VI) The Governments of Chile, Ecuador and Peru hereby state their purpose to subscribe agreements or conventions for the application of the principles stated in this Declaration, in order to establish general norms aimed at the regulation and protection of hunting and fishing within their corresponding maritime zone, and to regulate and coordinate the exploitation and employment of any other natural product or resource whatsoever, existing in such waters, that may be of common interest.6 Ratifications: Ecuador: Executive Decree Nº 275, February 7, 1955 (“Registro Oficial” Nº 1029, January 24, 1956. Chile: Supreme Decree Nº 432, September 23, 1954 (“Diario Oficial” November 22, 1954) Peru: Legislative Resolution Nº 12,305, May 6, 1955, with the executing order by Supreme Decree May 10, 1955 (“El Peruano”, May 12, 1955)

6  Haydee Rojas & Juan Raud, The Permanent South Pacific Commission (Santiago de Chile: Red Internacional del Libro, 1993), 11–12, 85.

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Colombia: The instrument of accession was deposited on April 16, 1980, at the Ministry of Foreign Affairs of Ecuador, Law 7, Art. 4, February 4, 1980. Registered at the U.N., May 12, 1976, Registration Nº 21404. U.N. Agreement Nº 14578. The “Declaration of Santiago” marked the beginnings of the Permanent South Pacific Commission (Comisión Permanente del Pacífico Sur, CPPS). The legal capacity of the Commission was established through an Agreement subscribed on January 14, 1966. Colombia joined the regional organization on August 9, 1979. That was the importance of the Truman Proclamations? What was their effect on Latin American States, and particularly on the law of the sea? A reply to these questions is given in A Handbook on the New Law of the Sea.7 The Truman Proclamation—it says—firmly consolidated the distinction between the question of the legal regime governing fisheries resources beyond the territorial sea and the regime governing mineral resources. As far as the legal concept of the continental shelf is concerned, it established its main characteristics: as the source of the concept of natural prolongation (“. . . since the continental shelf may be regarded as an extension of the land-mass of the coastal nation and thus naturally appurtenant to it . . .”), the chief doctrine it enunciated, as the International Court of Justice stressed in 1969, regarded “the coastal State as having an original, natural, and exclusive (in short a vested) right to the continental shelf off its shores”.8 It established a clear separation between the territorial sea and the shelf, over which the coastal State could not extend its sovereignty, but only its jurisdiction and control, and postulated the principle of the necessary compatibility between such a regime and the freedom of the superjacent waters. Two further factors had an impact on the Truman Proclamation as much as their content, and possibly even more so: one was a political factor, i.e., the indisputable ‘weight’ of the United States,9 while the other was a legal one. 7  Dupuy—Vignes, A Handbook on the New Law of the Sea, ob., cit., part 6, 325–327. The footnotes of this commentary are here reproduced. 8  ICJ Reports (1969): 32–33. It should also be noted that the Truman Proclamation does not define the extension of the continental shelf, although it specifies its regime. It is only in the accompanying press release of 28 September 1945 (see Whiteman, op. cit., 758) that the 100-fathom criterion is mentioned as an example rather than an exact limit. 9  See Zdenek J. Slouka, International Custom and the Continental Shelf (The Hague: Martinus Nijhoff, 1968), 80.

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As Souka remarked, it contained two elements which indicated the existence of a deliberate intention to initiate the development of a rule of customary law: first, the Proclamation “was based on facts and goals of a general character, not applicable exclusively to the United States” but to all coastal States; second, it contained an ‘element of reciprocity’ in that in order to have this right recognized by others, the United States was, implicitly, yet clearly, denying itself an opportunity to assert for itself or its national industries free access to the resources hidden in about ten million square miles of the continental shelves off foreign coasts, and thereby called on other States ‘to adopt a corresponding policy’. Georges Scelle therefore had good reasons to lament the danger of successive encroachments on the international public domain of the sea, when he accused the U.S. Government of adopting the attitude of a ‘sorcerer’s apprentice’ and criticized the hollowness of protests lodged by the United States about unilateral declarations which, although they gave rise to an ‘incredible extension’ to the original approach of the Proclamation, were nevertheless the consequence of that Proclamation (“Plateau continental et droit international” RGFIP, 1955) However, the practice initiated by the Truman Proclamation was far from consistent. On the one hand, a number of Latin American States did not adhere to the threefold distinction between mineral and biological resources; the shelf and superjacent waters; jurisdiction and control and sovereignty. These States extended their sovereignty over the maritime areas corresponding to the ‘epicontinental sea’10 or to a distance of 200 nautical miles,11 bringing us into the scope of unilateral claims by States which heralded the concept of the exclusive economic zone. On the other hand, even States which confined their extended competence to the shelf itself, as intended by the Truman Proclamation, did not adopt a uniform position. Whereas some States used the term ‘jurisdiction and control’ contained in the Truman Proclamation declarations, others, such as Australia in 1953, used the expression ‘sovereign rights’ and some, such as Pakistan and Brazil, did not hesitate

10  This interesting concept of the ‘epicontinental sea’ in which the influence of the abovementioned Argentinian authors can be seen, was introduced by Argentina alongside that of the continental shelf in the strict sense in decree Nº 14.708/46 of 11 October 1946. 11  Chile, Peru (1947), Costa Rica (1948), El Salvador (1950), joint declaration by Chile, Ecuador and Peru (1952).

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to annex the continental shelf as an integral part of their territory. Given such differing approaches, an effort to harmonize the applicable law was deemed necessary.

Latin American Statements

The Inter-American Council of Jurists, in its first meeting (Rio de Janeiro, 1950) studied all the declarations made by the Governments and organs of the American continent up to that date, among them the Truman Declarations and the decrees of Latin American States, most of them referring to the continental shelf. The Council instructed to its Permanent Committee, the Inter-American Juridical Committee, to study the subject “Regime of the territorial sea and related questions”. In compliance of this request, the Juridical Committee submitted to the Council in 1952 a draft Convention in which, according to Articles 1 and 2, the States acknowledge that the present international law recognizes that the coastal nation has exclusive sovereignty over the bed, subsoil, waters and aerial and stratospheric space of its continental shelf, and that such a sovereignty is exercised without any requisite of real or virtual occupation, and the right of each State to determine a zone of protection, control and economic exploitation, up to a distance of two hundred miles measured from the low water line . . . The Inter-American Council, in its second meeting (Buenos Aires, 1953), decided to postpone the consideration of the draft submitted by the Juridical Committee, but recognized as a real fact that due to the technical development of means of exploration and exploitation of natural resources in the continental shelf, the international law should accept that coastal States have “the right to protect, conserve and promote such resources, as well as to get advantage of their use . . .” The X Inter-American Conference, held in Caracas in 1954, adopted Resolution LXXXIV, according to which it reaffirmed “the interest of American States in declarations or national legislative acts proclaiming sovereignty, control or rights of exploitation or surveillance up to a certain distance from the coast, over the submarine shelf and waters of the sea and the resources therein”. Furthermore, it decided to convene a specialized conference in charge of studying the different aspects of the juridical and economic regime

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of the submarine shelf, the waters of the sea and the natural resources therein. This question was included in the agenda of the third meeting of the InterAmerican Council of Jurists. That meeting of the Council of Jurists was held in Mexico, from 17 January to 14 February 1956. It adopted the “Principles of Mexico on the Juridical Regime of the Sea”. Among those principles were the following: 1.

2.

The extension of three miles to limit the breath of the territorial sea is insufficient and is not a general rule of International Law. Therefore, the enlargement of the zone of the sea traditionally called territorial sea is justified. Each State is competent to establish its territorial sea up to reasonable limits, due regard to geographical, geological and biological factors, as well as the economic requirements of its population and its security and defence.

The Specialized Conference of Ciudad Trujillo (March, 1956) on “Preservation of Natural Resources: Submarine Shelf and Waters of the Sea”, convened according to Resolution LXXXIV of the X Inter-American Conference, did not contribute in the same way as the Council of Jurists. However, it reaffirmed the exclusive right of the coastal State to exploit the natural resources on the bed and subsoil of the continental shelf. In relation to the territorial sea, it submitted to the American States a conclusion in the sense that there existed “diversity positions among the States represented in this Conference in respect to the extension of the territorial sea”. The III Congress of the “Hispano-LusoAmerican Institute of International Law” (Quito, October, 1957) ratified the above doctrine with the following words: 1. 2.

That it is a right and an inescapable duty of coastal States to defend their maritime riches existing in the bed and subsoil of the sea and in the waters covering them. That States are competent to unilaterally establish the extension of the territorial sea beyond the distances commonly acceptable, inasmuch as necessary to give adequate protection to the objectives indicated in paragraph number one.

On 21 July 1965, the Juridical Committee, the organ of the Inter- American Council of Jurists, on the basis on a report submitted by its Rapporteur, Alfonso Garcia Robles, adopted a Resolution. Articles 1, 2 and 3 said:

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All American State has the right to determine the breath of its territorial sea up to the limit of twelve nautical miles measured from the low-water line along the coast. In cases that the State determines a lesser breath, the State will have a fishing zone contiguous to its territorial sea, over which it will exercise the same fishing rights as in its territorial sea. The State will have the right to extend this zone up to the limit of twelve nautical miles, measured from the point from which the territorial sea is established. The previous provisions in any way prejudice the extension of the adjacent zone to the high seas that the coastal State may determine when it has a special interest in maintaining the productivity of living resources of the sea, as well as a preferential right for the exploitation of said resources, in which case the State will be empowered to establish the necessary measures aimed at securing the conservation of such resources.

The Meeting of Montevideo on the Law of the Sea, which the representatives of Argentina, Brazil, Chile, Ecuador, El Salvador, Nicaragua, Panama, Peru and Uruguay attended, adopted on 8 May 1970 the Declaration of Montevideo. According to its most relevant paragraphs, it recognized: 1.

2.

6.

The right of coastal States to have at their disposal the natural resources of the adjacent sea to their coasts, and in the bed and subsoil of such a sea, in order to promote the maximum development of their economies and to increase the standard of living of their populations. The right to establish limits of their zone of maritime sovereignty and jurisdiction, in conformity with the geographical and geological characteristics and with factors conditioning the existence of the maritime resources and their rational exploitation. The right to adopt regulation measures for the above mentioned objectives to be applied in the zones of maritime sovereignty and jurisdiction, without prejudice of the freedom of navigation and over-flight of vessels and airships of any flag.

The Latin-American Meeting on some aspects of the Law of the Sea was held in Lima few months after the Meeting of Montevideo. In the case of the Meeting of Lima, some States of the Caribbean region were invited, and for this reason 20 States were represented. The Declaration of Lima, on 8 August 1970, contained five principles. With slight modifications, they reproduced paragraphs 1, 2 and 6 of the Declaration of Montevideo. The delegations of Mexico, Panama,

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Dominican Republic and Venezuela made interpretative declarations to the second principle on the right of a coastal State to establish limits to its zones of maritime sovereignty and jurisdiction. The delegations of Argentina, Chile, El Salvador, Brazil, Colombia, Ecuador, Honduras, Nicaragua, Panama and Peru made interpretative declarations to the third principle on the right of a coastal State to adopt regulation measures on its zones of maritime sovereignty and jurisdiction. The declaration made by Ecuador was the following: The delegation of Ecuador . . . wishes to put on record that the liberty of navigation in its territorial sea established by its national legislation according to the limits established by the Declaration of Santiago de Chile of 18 August 1952, does not imply renunciation to the capacity of full exercise of the rights of the coastal State in that sea. The Specialized Conference of the Caribbean States on Problems of the Sea was held in Santo Domingo and fifteen States were present (Barbados, Colombia, Costa Rica, El Salvador, Guatemala, Guyana, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Dominican Republic, Trinidad and Tobago and Venezuela). On 9 June 1972, the “Declaration of Santo Domingo” was signed by the representatives of 10 States. The principles of this instrument referred to the following matters: a) territorial sea; b) patrimonial sea; c) continental shelf; d) international deep sea bed; e) high seas; f) pollution of seas; and g) regional cooperation. According to this document, a new concept appeared: ‘patrimonial sea’. In relation to the territorial sea, the “Declaration of Santo Domingo” established that “All States have the right, in the meanwhile, to determine the breath of its territorial sea up to the limit of 12 nautical miles”. The section related to the patrimonial sea has five principles of special importance are those numbered 1, 3 and 5: 1. 3.

5.

The coastal States exercise sovereign rights over natural resources, whether living or not living, existing in waters, in bed or subsoil, of a zone adjacent to the territorial sea, called patrimonial sea. The breath of the patrimonial sea has to be the object of an international agreement, preferentially of world scope. The addition of this zone and that of the territorial sea, due regard to geographical circumstances, shall not exceed a total of 200 nautical miles. In the patrimonial sea, vessels and airships of all States, whether coastal States or landlocked, have the right of free navigation and over-flight,

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without any restrictions except those resulting of the exercise by the coastal State of their rights over such a sea. With these sole limitations, there shall be also freedom to laying of submarine cables and pipelines. The idea of the ‘patrimonial sea’ had its origin in a draft submitted in 1971 to the Inter-American Juridical Committee by the Chilean jurist Edmundo Vargas Carreño, in his capacity as Rapporteur on the theme Law of the Sea. Andrés Aramburú,12 on mentioning this idea, recalls that it appeared in the Truman Proclamations, and finds deficiencies in the Santo Domingo Declaration: that many signatory States have coasts both in the Caribbean and the Pacific seas, which could imply “adopting different distances and different regimes”; and that the coastal State would only exert “sovereign right over the natural resources existing in the area”. To this respect, he adds: Sovereignty is indivisible. It is not possible to have sovereignty for certain effects and not for others. And it is more absurd to have sovereignty over the resources without having sovereignty over the place where they exist. The result of the “Santo Domingo Declaration”, in spite of the efforts made by many Latin-American countries to avoid it, was the division between ‘territorialists’ and ‘patrimonialists’, which prevented these countries from presenting at that moment a uniform front, as well as favoured the great maritime powers’s hurdles to any understanding. The last pronouncement in the Latin-American context was on 9 February 1973, when the Inter-American Juridical Committee adopted the Resolution on the Law of the Sea. Paragraphs 1, 2 and 4 expressed the following: 1.

2.

3.

Sovereignty or jurisdiction of a coastal State extends further than its territory and its interior waters, to an extension of the adjacent sea to its coasts, up to a maximum of 200 nautical miles, as well as to the aerial space, the bed and subsoil of such a sea. Therefore, the determination up to 200 miles that any American State could have made or shall make is valid, providing that it respects the provision of Article 4. Inside this maritime extension two zones are distinguished: one which extends up to 12 miles, and the other which extends from the exterior limit of the first up to 200 nautical miles, measured in accordance with the pertinent norms of International Law. . . .

12  Andrés Aramburú Menchaca, Historia de las 200 millas del mar territorial (Lima, 1954).

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Inside the limits of the adjacent zone to the first zone of 12 miles, vessels and airships of any State, with maritime coasts or without it, enjoy the freedom of free navigation and over-flight, subject to the pertinent regulations of the coastal State relating to the preservation of the marine environment, to the activities of exploration, exploitation and scientific research which are performed in that zone, as well as the norms of security of navigation and the marine transportation, all this in conformity to International Law.

Vargas Carreño13 explains the contents of that Resolution: Taking as a fact that the 200 miles of maritime jurisdiction is a reality adopted by the majority of Latin-American States, the debates in the Committee were based in the juridical nature of these maritime spaces proclaimed or favoured by those States. While some members of the Committee maintained the thesis of a territorial sea or a sea of full sovereignty of the coastal State in its 200 miles, others favoured a division of this space into two zones: the first, properly of a territorial sea with a maximum limit of 12 miles, and a second, an additional zone up to 200 miles, which could be qualified as a ‘patrimonial sea’ or ‘economic zone’, over which the coastal State exercises its competences for purposes related exclusively to the protection and exploitation of resources existing in that additional zone and in which the freedom of navigation and over-flight has to be respected. The result of the harmonization of these two opposing conceptions was the document in some aspects contradictory and void of juridical precision.

Reasons for the 200 miles

It has been said that the ‘200 miles zone is a zone of ‘excessive’ sovereign rights for a coastal State, or an ‘exacerbated extension’ of rights or also a ‘scandalous zone’. It is necessary therefore to investigate the reasons that gave origin to this extension. Colombos14 pointed out that “with the rapid progress of scientific investigation and the adoption of the new and more efficient methods of engineering, greater attention is being given to the best way of preserving 13  E. Vargas Carreño, América Latina y el Derecho del Mar (México: Fondo de Cultura Económica, 1973), 43–44. 14  John Colombos, op. cit., 424–426.

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and developing the natural products of the sea in the general interest of mankind”. He recalled the recommendation adopted in 1937 by the Institute of International Law, in the sense that the Governments of the interested States should develop a study, by means of scientific research . . . of the problem of the preservation of the wealth of the sea, and particularly of the marine fauna, not only against the abuses resulting from the employment of highly destructive methods and engines, but also practices harmful to sea life . . . and the adoption without delay, of all such protective measures as would appear justified, in the general interest, as a result of such a study. Colombos also recalled the Report dated July 4, 1956 of the International Law Commission, which drew attention to the fact that the existing law on the subject, including the existing international agreements, provide no adequate protection to marine fauna against extermination. The resulting position constitutes, in the first instance, a danger to the food supply of the world. Also, in so far as it renders the coastal State or the States directly interested helpless against wasteful and predatory exploitation of fisheries by foreign nationals, it is productive friction and constitutes an inducement to States to take unilateral action, which at the present is probably illegal, of self-protection. Such inducement is particularly strong in the case of the coastal State. Once such measures of self-protection, in disregard of the law as it stands at present, have been resorted to, there is a tendency to aggravate the position by measures aiming at or resulting in the total exclusion of foreign nationals. It is true that the same Declaration of Santiago gives a synthetic idea of the basis of the 200 miles. Nevertheless, it is important to add that this distance has not been determined arbitrarily, but has been the result of scientific considerations. The Humboldt stream which flows alongside the coastal States of the South Pacific is a special ecological zone. This cold stream is the center of a great primary production and constitutes a relatively complex ecosystem. It produces a geo biological relationship between the sea and the coast. On the one hand, the low temperature of waters of the Humboldt stream prevents clouds forming, which explains that almost the entire Peruvian coastal range is a desert. Populations living on these lands are obliged to look for means of subsistence in sea waters. On the other hand, rivers descending from the Andes to the ocean deposit in its waters mineral and organic materials which are dragged by erosion or

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winds and rains action. These materials come back to the surface because waters are shallow as a consequence of different factors, such as winds that displace waters from the surface and those materials are in contact with solar energy. In this way the photo-synthesis is produced, which transforms into phytoplankton zoo, whose growth is favoured by low water temperature. This plankton is nourishment for small species of fish, which in turn is food for more important species and so forth. In this way there is an inter-dependence of different species of fish, the survival of some are dependent on the others. However, there are other factors to remember. The Humboldt stream has two phases: Spring-Summer and Autumn-Winter. In its first phase, the average length of the stream reduces between 30 to 50 miles and the front of the equatorial waters increases up to 5 degrees south and more in certain cases, especially when the ‘El Niño’ current takes place. During the second phase (AutumnWinter), the current expands notably. The outcrop increases and in some parts of the sea it exceeds the limit of 200 miles, and such symptoms maintain a safety barrier for tuna fish and other migratory species. This increase in the different species of fish establishes an inter-dependence of marine resources, which justifies the vital importance of fishing for the coastal population. The breaking of this inter-dependence and of the ecological equilibrium would adversely affect human beings and the economy of coastal States. That is the reason why these States proclaim the protection and conservation of this maritime zone up to the limit of 200 miles. From time immemorial, resources existing in adjacent seas have been considered to belong to inhabitants of coastal lands. At first, they found fishing for their subsistence, and later, without disregarding this activity, they resorted to exploration and exploitation of other resources, activities that for many populations are an irreplaceable source for living. From there arises the obligation of States to preserve and protect those resources, a pressing need especially in face of the present marvelous scientific and technological development. The Modus Vivendi and the Declaration of Santiago Relations between Ecuador and the United States suffered as a consequence of the capture of three North-American fishing boats in May and June 1963 while performing fishing activities in Ecuadorian waters. The Californian tunafish companies demanded the USA Government to take energetic measures against Ecuador. This was the antecedent of the Modus Vivendi celebrated in Quito and established in two memoranda dated 13 and 26 September 1963, which were kept in secret and not published.

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The implementation of this instrument gave rise to serious public controversies once the documents were considered by the Ecuadorian 1966–67 National Constituent Assembly and the consequential press articles and commentaries. The problem arose because the texts were not similar. But the main issue was that Ecuador consented that US fishing vessels could perform their fishing activities with the requisite of fishing licenses issued by Ecuadorian authorities within a maritime zone of twelve miles measured from the baseline along the coast, which implied that outside this baseline no license was required. The US text explicitly mentioned the Galapagos archipelago while the Ecuadorean text referred only to the “continental coast and adjacent isles”. There was also a difference in relation to the tariffs applied to obtain fishing licenses, in violation of the existing Ecuadorian fishing law, as a consequence of which an important loss was sustained in the fishing revenues for Ecuador. This situation was considered by the Minister for Foreign Affairs of Ecuador as affecting the obligations assumed by the State in the Declaration of Santiago. The Consultative Board of the Ministry was requested to study the matter, and once this board gave its opinion in favour of denouncing these documents, the Minister proceeded (25 March 1966) in accordance. National and international media published the texts of the Modus Vivendi and the reasons on which the Ecuadorean Government based its decision.

XIV Consultative Meeting of Ministers of Foreign Affairs: Ecuadorian Claim Against the USA

While experts of Latin-American States were meeting in Lima discussing the future action in relation to the then convened III U.N. Conference of the Law of the Sea, and while in Colombo a meeting of the Consultative Asian-African Legal Committee was taking place in order to also consider questions relating to the law of the sea, a large US fishing fleet was present in Ecuadorian waters with the obvious purpose of pressing the US authorities to take coercive measures against Ecuador. As an antecedent of this situation, between 11 and 27 January 1971, Ecuadorian Navy units captured 18 US fishing boats which were operating in Ecuadorian waters disregarding any fishing without a fishing license. The Secretary of State confirmed to the Ecuadorian Ambassador in Washington D.C. the application of sanctions to Ecuador for the seizure of those fishing boats. Ecuador asked the OAS to convene a Consultative Meeting of Foreign Ministers.

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This meeting—the XIV—took place in Washington on 30 January 1971. It was recognized that both Governments had taken certain actions in relation to this question, which included: a)

b)

On the part of Ecuador, seizure, trial, the levying of fines and subsequent release of foreign fishing boats operating within its territorial waters without a license or registration issued by the Government of Ecuador in accordance with the Ecuadorian law; On the part of the United States, the suspension of military sales to Ecuador pursuant to legislation of the United States relating to the capture or North American fishing vessels and the announcement that it will consider other legislative measures relating to the capture of fishing boats.

On the following day (31 January), the Meeting adopted a Resolution, of which the two initial paragraphs reproduced the positions of Ecuador and the United States. These positions were: The position of Ecuador is that without violation of any rule of international law whatsoever, and in the exercise of its sovereignty, it has fixed the range of its territorial waters at 200 nautical miles and therefore, according to Ecuadorian law, foreign boats may not fish within these 200 nautical miles without a license or registration issued by the Ecuadorian Government. The position of the United States of America is that under international law coastal states’ exclusive fishing jurisdiction may not extend more than 12 miles from their coasts. The dispositive paragraphs stated: 1) To urge the parties to avoid the aggravation of their differences; 2) To urge the parties to use the quatripartite negotiations in which they have shown special interest; and 3) To urge member states that in their mutual relations they strictly observe the principles of the Charter of the Organization of American States and abstain from the use of any kind of measure that might affect the sovereignty of states and the tranquility of the hemisphere. In the negotiations referred in paragraph 2 the delegations of Chile, Ecuador, Peru and the United States were the participants.

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This Resolution produced the suspension of sanctions against Ecuador and the re-establishment of the atmosphere of calm and peace in the region. At the same time, it was an implicit recognition of the rights of an American coastal State in the adjacent sea.

Tripartite Conversations Before the 1958 Law of the Sea Conference

Some industrialized and maritime powers (United States, United Kingdom, France, Italy, Netherlands) protested against the Declaration of Santiago. Once the First United Nations on the Law of the Sea was convened in Geneva, the three members of the Declaration of Santiago (Chile, Ecuador and Peru) held conversations to coordinate their action in the coming Conference. In the final act of these conversations, it read: The three delegations agreed to point out the relation existing between questions of liberty and right of fishing and conservations of living resources and the question of the determination of the breath of territorial sea. If in the next Conference the recognition of the special right of the coastal State to the resources existing in the adjacent zone to its territorial sea is admitted, and the consequent right to exploit, regulate and supervise fishing activities in that zone, there would not be tactical interest in maintain open the discussion on the breath of the territorial sea. Paragraph 8 of this statement said: The three delegations expressed its conformity with the convenience to propose in Geneva, from the beginning as it was in The Hague in 1930, to postpone the consideration of the breath of the territorial sea (article 3) until the consideration of the liberty and the right of fishing, as well as conservation, the contiguous zone and the continental shelf, has been sufficiently progressed. Another statement in the same direction said: The three delegations expressed its conformity with respect the convenience of proposing in the Geneva Conference to postpone the study related to the breath of the territorial sea until the work of the Conference

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has been sufficiently progressed in respect to questions of fishing, conservation of resources, adjacent zones and other similar questions. Paragraph 9 of the act expressed: The Governments of Chile, Ecuador and Peru should declare that, in conformity with the ‘Principles of Mexico’, maintain the principle that each State is competent to determine its territorial sea up to reasonable limits according the geographic, geological and biological aspects, as well as the economic necessities of their population and their security and defence.

Commission on the Peaceful Uses of the Sea-Bed and Ocean Floor Beyond the Limits of National Jurisdiction (Sea-Bed Committee)

The representative of Malta to the United Nations, Ambassador Arvid Pardo, proposed in 1967 the inclusion in the Agenda of the XXII session of the General Assembly of a subject called “The question of the exclusive reservation for peaceful uses of the Sea-Bed and Ocean Floor, beneath the high seas, beyond the limits of national jurisdiction, and the uses of its resources for the benefit of mankind” The Assembly established the Sea-Bed Committee, for the purpose of shaping and refining the ideas and concepts which were to form the basis of a new international regime. The General Assembly established in 1967 the Sea-Bed Committee with 35 members. On the following year, the Assembly received the report of the Committee and decided to change the name this organ to a Commission with the same purposes and determined its future work. The Commission was established with 42 members. In 1973, the General Assembly decided to convene the Third United Nations Conference on the Law of the Sea and increased the membership of the Commission with 44 new members, and it remained constituted with 85 members. It was also decided that this Commission will perform the responsibilities of a Preparatory Committee for the forthcoming Conference. Later, the Assembly increased the membership of the Commission with 5 new members amounting to a total of 91 members. Seventeen LatinAmerican States were members of the Commission: Argentina, Bolivia, Brazil, Colombia, Chile, Ecuador, El Salvador, Guatemala, Guyana, Jamaica, Mexico, Nicaragua, Panama, Peru, Trinidad and Tobago, Uruguay and Venezuela. The Commission worked on the basis of consensus.

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The proposals presented by Latin-American States reflected the different positions that they supported. Among these proposals, were the following: 1)

2)

3) 4)

5)

6)

The proposal submitted by Colombia, Mexico and Venezuela contained the following chapters: Territorial Sea, Patrimonial Sea, Continental Shelf, High Seas, Regional Agreements. The breath of the territorial sea may not exceed 12 nautical miles. The patrimonial sea may not exceed 200 miles. The proposal submitted by Uruguay established that the coastal State had the right to determine the limits of its territorial sea which may not exceed 200 miles. Other articles followed the terminology of the 1958 Geneva Conference. The proposal by Brazil established that the breath of the territorial in any case sea may not exceed 200 miles. The proposal by Argentina stated that the coastal State has the right to fix the breath of the territorial sea up to the maximum distance of 12 miles. The coastal State has sovereign rights over a zone adjacent to the territorial sea up to the distance of 200 miles, and those rights are applicable over the natural resources, living and non living, renewable and non renewable of such a zone. The proposal submitted by Ecuador, Panama and Peru said that the sovereignty of a coastal State extended to the adjacent sea up to limits not exceeding 200 miles. This sovereignty is applicable also to the aerial space over the adjacent sea, as well as the soil and subsoil of the latter. This proposal was completed with provisions on baselines, navigation regime, regulations for natural resources, pollution control, scientific research, provisions for installations (artificial isles, submarine cables and pipelines), regional and sub-regional regimes, land-locked States, international sea, soil and subsoil of international sea. The above mentioned proposal was completed by another one from the same three States. It concerned fisheries in zones of national sovereignty and jurisdiction. It stated that the coastal State has the power to promulgate legal provisions related to the management and exploitation of living resources in the maritime zone of its sovereignty and jurisdiction, especially with the purpose of securing the conservation and rational use of such resources. This proposal referred also to fisheries in the international sea.

PART 4 The Law of the Sea in Polar Regions

⸪

Chapter 12

Some Comments on the Whaling in the Antarctic Judgment Lilian del Castillo On March 31 2014, the International Court of Justice decided on a judgment that deserves support: the case of Whaling in the Antarctic (Australia v. Japan: New Zealand intervening). The case dealt with the violation by Japan of the 1946 International Convention for the Regulation of Whaling (ICWR) inasmuch as, as alleged by Australia and New Zealand and decided upon by the Court, Japan issued special permits for taking whales “for purposes of scientific research” in the Southern Ocean, within the Japanese Whale Research Program under Special Permit in the Antarctic Phase II (JARPA II), which was not actually “a program for purposes of scientific research within the meaning of Article VIII of the ICRW” [Judgment, para. 25], but, on the contrary, disguised commercial whaling. The applicant requested that the Court declare the implementation of the JARPA II program to be in violation not only of the ICRW but also of the different provisions of the Schedule: (i) in relation to the zero catch limit of whales for commercial purposes (para. 10 (e) of the Schedule); (ii) the commercial whaling of fin whales in the Southern Ocean Sanctuary (para. 7 (b) of the Schedule); (iii) the taking, killing or treating of whales, except Minke whales, by factory ships (para. 10 (d) of the Schedule) and, (iv) the requirements of paragraph 30 of the Schedule.1 The Judgment agreed with the contentions of Australia and the intervening party, New Zealand, and decided, unanimously, “. . . that the special permits granted by Japan in connection with JARPA II do not fall within the provisions of Article VIII, paragraph 1, of the International Convention for the Regulation of Whaling.” The operative part of the judgment ruled that Japan was in violation of almost all of the provisions at stake, whether of the ICRW or the Schedule. 1  Paragraph 30 of the Schedule specifies that “30. A Contracting Government shall provide the Secretary to the International Whaling Commission with proposed scientific permits before they are issued and in sufficient time to allow the Scientific Committee to review and comment on them. The proposed permits should specify: (a) objectives of the research; (b) number, sex, size and stock of the animals to be taken; (c) opportunities for participation in the research by scientists of other nations; and (d) possible effect on conservation of stock.”

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The Court confirmed that “the special permits granted by Japan in connection with JARPA II do not fall within the provisions of Article VIII, paragraph 1, of the International Convention for the Regulation of Whaling” (operative paragraph 2); that in granting “special permits to kill, take and treat fin, humpback and Antarctic Minke whales in pursuance of JARPA II, [Japan] has not acted in conformity with its obligations under paragraph 10 (e) of the Schedule,” (operative paragraph 3); that by “killing, taking and treating fin whales in pursuance of JARPA II” Japan did not fulfill its obligation under paragraph 10 (d) of the Schedule (operative paragraph 4); and that Japan by “killing, taking and treating of fin whales in the “Southern Ocean Sanctuary” in pursuance of JARPA II” violated its obligations under paragraph 7 (b) of the Schedule (operative paragraph 5). In contrast, the Court found that Japan had fulfilled its obligations under paragraph 30 of the Schedule in relation to the JARPA II program (operative paragraph 6). Regarding this point, it is relevant to mention the dissenting opinion of Judge Julia Sebutinde, who found that ‘the facts before the Court do not bear out this conclusion.”2 On the same track, Judge Greenwood, even if voting in favor of the Court’s findings in operative paragraph 6, clarified in his Separate Opinion that the duty to provide information “means that a State is not free to adopt a formalistic approach to paragraph 30” and expressed that “[I]t must, therefore, be open to question whether there has been a full compliance with the duty of co-operation.”3 Even if no objection should be raised to sharing the findings of the Court, there are two points in respect of which some observations will be made, namely, (a) The opportunity to resort to UNCLOS and other legal regimes for the interpretation of the ICRW’s provisions, and (b) The acquiescence to recognize the Southern Ocean. The background about the whaling regime established in the 1946 Convention and its implementation will be referred to in advance.

The Conventional Whaling Regime

The International Convention for the Regulation of Whaling (ICRW) The ICRW was adopted in 1946 by a group of States involved in whaling activities and interested in whale commercial exploitation and regulation. Many cetaceans, including dolphins, were included in the list of species regulated therein. The objective of the Convention was not to ban the commercial 2  Separate Opinion of Judge Sebutinde, para. 1 in fine. 3  Separate Opinion of Judge Greenwood, para. 31.

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hunting of whales but to regulate it, establishing catch limitations for certain species, some of them, with an estimate of 97% reduction of the original population, on the verge of extinction as is the case of the blue whale, the largest living species.4 Commercial whaling, specially targeted at the production of whale oil, profited from technological advances in the first decades of the past century, which led to a predatory increase of the activity. In 1930–31, at the peak of whale hunting, the whale oil reached an annual production of three and a half million barrels.5 A first draft Convention for the Regulation of Whaling was adopted in 1931, and entered into force in 1935.6 Due to their oceanwide distribution, whales are hunted in all the oceans, including the Arctic Ocean and the Southern Ocean around the Antarctic Continent. For this reason the Convention was applicable worldwide (Article 9). However, even if ratified by eighteen States, it was not effective. In 19377 another International Agreement for the Regulation of Whaling was adopted in London, with additional protocols incorporated in 1938, 1944, 19458 and 1946.9 At the same time, new negotiations were carried out and on December 2, 1946, the International Convention for the Regulation of Whaling was adopted at Washington, DC, and entered into force in 1948.10 The Convention (the ICRW or the Convention) was signed by Argentina, Australia, Brazil, Canada, Chile, Denmark, France, Japan, Mexico, The Netherlands, New Zealand, Norway, Peru, South Africa, U.K., former U.R.S.S. and the USA11 and is open to adherence by other States. Its current membership is of 88 member countries. The Convention applies to all waters and ‘to factory ships, land stations, and whale catchers under the jurisdiction of the Contracting Governments’ (Article I). Its object and purpose is ‘to provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry,’ taking into consideration ‘the interests of the consumers of whale 4  Daniel Bodansky, Jutta Brunnée & Ellen Hey, The Oxford Handbook of International Environmental Law (Oxford: Oxford University Press, 2007), 61. 5  Patricia W. Birnie, International Regulation of Whaling: From Conservation of Whaling to Conservation of Whales and Regulation of Whale Watching (New York: Oceana, 1985), vol. I, 109–118. 6  Text in 155 LNTS 349. 7  Text in 190 LNTS 79. 8  Text in 148 UNTS 1143. 9  Patricia W. Birnie & A. Boyle, International Law and the Environment. Basic Documents (Oxford: Oxford University Press, 1995), 586–587. 10  Text in 161 UNTS 143. 11  Birnie & Boyle, op. cit., 587–611.

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products and the whaling industry’ (Article V.2.(d)). To implement its regulatory task the Convention set up the International Whaling Commission (the IWC or the Commission) (Article III.1), with the capacity to amend the Schedule of Regulations, which is an integral part therein, and contains the technical definitions of whaling activities, tables of stocks and whaling permits (Article V.1). The Schedule is the dynamic operative instrument of the IWC and has already introduced a number of significant amendments. Throughout its first three decades of existence, although it aims to maintain the whale stocks, the Commission construed the Convention as a fishing organization and inconsistently authorized high catch numbers, using blue whales as units.

The Increasing Concern for the Conservation of Marine Living Resources After the entry into force of the Convention, in 1948, important legal developments introduced demands for environmental protection which were heralded in different legal instruments, either establishing general principles, like the 1972 Stockholm Conference on the Human Environment and its many subsequent developments or obligations on States, such as the binding 1973 Convention on International Trade in Endangered Species (CITES) and in a number of provisions of the 1982 United Nations Convention for the Law of the Sea (UNCLOS). The 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), in Appendix I included Cetacea, dolphins, porpoises and whales in the list of the most endangered species threatened with extinction, and “prohibits international trade in specimens of these species except when the purpose of the import is not commercial”. The 1979 Bonn Convention on Migratory Species (CMS) listed different Cetacean, including whales, dolphins and porpoises, in Appendix I, which enumerates Endangered Migratory Species. In 1982, the Convention on the Law of the Sea, in force since 1994, established the duty of States to adopt measures and cooperate with appropriate international organizations for the conservation and management of marine mammals and cetaceans both in the Exclusive Economic Zone (Article 65) and in the High Seas (Article 120). In 1992, the Convention on Biological Diversity (CBD) prescribed that all States should share the benefits of biodiversity, however, the continuous predation of cetaceans prevents non-whaling countries from sharing a natural resource common to all nations. Other conventions, either general or regional, have dealt with the obligations of States to ensure the protection of the marine environment and its living resources. Some of those treaties regulate activities in Antarctica and its surrounding waters.

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The Commercial Whaling Moratorium In 1972, the Stockholm Conference on the Human Environment requested the Commission to adopt a ten-year moratorium on commercial whaling, but the request of a general moratorium was not accepted by the IWC, neither at that time nor in the following years. In 1976, however, a selective moratorium was established by the New Management Procedure, which was based on the estimated Maximum Sustainable Yield for the different stocks. Additionally, some of the original whaling Members which had become non-whaling States and the new non-whaling membership overrode the steady opposition of the remaining whaling States to approve the overall moratorium in 1982, to be implemented gradually as from 1985. Since then, the moratorium has been challenged but it has remained in force due to a failure to obtain the ¾ majority that is required to abolish it.12 For more than sixty years of its implementation, the Convention meetings have been the sounding board for the changes in a new approach for the conservation of nature and the development of new materials. In fact, the oil and other goods on which the whaling industry once based its importance have been replaced by other products, and whaling has become an unnecessary exercise of cetaceans’ exploitation. However, even if there is no reliable data revealing an increase in the different whale stocks, the wave against the moratorium has not diminished within the IWC. In 1996 Japan and Norway notified the IWC that they would continue with scientific whaling and, additionally, the Annex was modified to include small cetaceans. Meanwhile, since the 61st session in 2009, the United States, the Russian Federation, Denmark and St. Vincent and the Grenadines have obtained quotas for native cetaceans.13 Exceptions to the Commercial Moratorium The moratorium was an absolute ban for commercial whaling, but it included exceptions for non commercial whaling, or a way out clause. Those exceptions are detailed below. Whales for Human Consumption The exception to commercial whaling was the consumption of whale meat, which is an appreciated dish among Arctic populations who wish to preserve traditional hunting practices, and in some countries like Japan. Member States have been divided between the conservationist trend, which is the task of the

12  IWC Resolutions on http://iwc.int/resolutions. 13  Jean-Pierre Beurier & Alexandre Kiss, Droit International de l’Environment (Paris: Pedone, 2010), 379.

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Conservation Committee, and the exploitation demands.14 Despite the conservation efforts of some members, some populations continue to diminish, as is recorded in the reports of the Convention’s Scientific Committee, addressing the status of many cetaceans. The ‘vaquita’ of the Gulf of California, Mexico, with only about 150 animals remaining, is one of those endangered species threatened with extinction. The same is taking place in the case of the Boto, hunted without restriction in Brazil, Colombia, Peru and Venezuela and the Dall’s porpoise off the coasts of Japan.15 Whales Taking for Purposes of Scientific Research Although the 1982 moratorium suspended commercial whaling, the Convention makes an exception for research programs including lethal methodologies, which are excluded from the moratorium because they are not granted by the Commission but by the Governments themselves (Article VIII.1). Those special whaling permits for research programs, carried out by Norway and Iceland and other Member States, exceed the 1,000 whales yearly, even if they are strongly resisted by non-whaling Members. They argue that it is not necessary to carry out lethal research, which is an euphemism to authorize the whaling of one thousand whales for that purpose. Moreover, there is an intense non-lethal research activity on cetaceans, i.e. in the South Atlantic off the American and African coasts, whose reports reach the public through conferences and their publication in scientific journals. Argentina, Brazil and South Africa carry out research programs on cetaceans using exclusively non-lethal methodologies. Thus, the needs for lethal-research lack foundation. Whales Sanctuaries16 The Commission is entitled to adopt regulations ‘with respect to the conservation and utilization of whale resources’ and to that end fix ‘open and closed waters, including the designation of sanctuary areas’ (Article V.1 (c)). Sanctuaries are zones of total prohibition of whaling, where the species are protected against the threat they are exposed to when they leave the Exclusive Economic Zones (EEZ) of States, affecting the sustainable use 14  Patricia Birnie, “International Legal Issues in the Management and Protection of the Whale: A Review of Four Decades of Experience”, 29 N R J 903 (1989): 916. 15  Anthony D’Amato & Sudhir K. Chopra, “Whales: Their Emerging Right to Life”, 85 A JIL 21 (1991). 16  Judith Berger-Eforo, “Sanctuary for the Whales: Will This Be the Demise of the International Whaling Commission or a Viable Strategy for the Twenty-First Century?”, 8 Pace Int’l L. Rev. 439 (1996). Available at: http://digitalcommons.pace.edu/pilr/vol8/iss2/5.

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coastal States can make of this resource through whale-watching and t­ ourism.17 There are two whale ‘sanctuaries’ that have already been established by the Commissions, the sanctuary in the Indian Ocean, adopted in 1979 following the proposal by the Government of Seychelles, and renewed indefinitely since 1992; and “The Southern Ocean Sanctuary”, in force since 1994, proposed in 1992 by the French Government for the ocean waters south of the Antarctic Convergence, and renewable every ten years. In 1998 Brazil proposed the creation of a third Whale Sanctuary in the South Atlantic Ocean, from 0º to 40º South latitude, where it borders the Southern Ocean Sanctuary, eagerly supported by Argentina and South Africa. The initiative had a growing support of other IWC members and in 2005 was submitted to the IWC in a revised version. The establishment of a South Atlantic Whale Sanctuary would discourage the possibility of resuming commercial whaling, and it is important not only for the region but for all the IWC members struggling for the sound management of ocean mammals and placing their protection as a priority because of their difficult recovery. The project was neither approved in 2005 nor in 2012. In fact, the proposal was submitted by Argentina, Brazil, South Africa and Uruguay to the 64th session of the IWC, held in Panamá on July 2–6, 2012, but even if 38 Members voted for the affirmative, 21 voted against, 19 parties could not vote, 8 were absent and there were 2 abstentions, thus the three quarters majority of the present 88 Members was not achieved.18 The positions of Japan, Iceland and Norway were immovable and inflexible regarding the support to lethal research methods and the objection (the wayout clause) of the decisions about moratoria and non commercial exploitation of cetaceans.19 Also in that session Monaco proposed that regarding cetaceans migrating from the high seas to EEZs and territorial waters, its regulation exceeded the competence of the IWC to the larger scenario of the United Nations and its specialized organizations. This initiative was supported by Argentina, Brazil, Chile, Colombia, Costa Rica, Ecuador, México and Panama but opposed by China, Grenade, Iceland, Japan, Norway, Tanzania, Palau and Antigua-Barbuda. The draft resolution was not approved but it will be dealt with by an informal group during the interval until the next session, to be held 17   Malgosia Fitzmaurice, David M. Ong & Panos Merkouris, Research Handbook on International Environmental Law (London: Edward Elgar, 2010), 126. 18  Annual Report of the International Whaling Commission 2012, 64th Annual Meeting, Panamá, 2012, 9. See at https://archive.iwc.int. 19  Rüdiger Wolfrum, “Means of Ensuring Compliance with and Enforcement of International Environmental Law”, 272 RdC (1998): 110–118.

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in two years because, for the benefit of whaling supporting countries, the 64th session was the last to be held annually.20 In 1998 the governments of Australia and New Zealand proposed the discussion of a South Pacific Whale Sanctuary; however, it was never approved. At present, whale watching has grown as an incentive for tourism, and it is certainly a growing activity off the coast of Patagonia, Argentina, where the Southern Right Whale (Eubalaena australis) was declared a natural monument in 1984 (Statute No. 23,094) and it enjoys absolute protection in national jurisdictional waters. In 2008, Brazil also declared its jurisdictional waters a Whales and Dolphins Sanctuary for the protection and preservation of Cetaceans (Presidential Decree No. 6,698). Whales are not a national but an internationally shared resource, and as such they are the concern of all countries. The IWC is a clear example of the conflicts of interests involved in the shared management of natural resources, and the difficulties of sharing, which implies considering not only one’s own but others’ demands as well. Shared management of natural resources entails the clash between different national perspectives.

The Concurrent Antarctic Regime

The Antarctic Treaty and the Protocol on Environmental Protection In 1959, the adoption of the Antarctic Treaty started a new regime for Antarctica, comprising the land, islands, ice cap and the sea surrounding the Antarctic Continent.21 The Parties to this case were the original signatories of the Treaty, which came into force on June 23, 1961, and as of 2014 it comprises fifty members, not all of which are Consultative Parties. After 1961, other conventions were agreed upon by the Parties to the Antarctic Treaty, which for that reason established what is known as the Antarctic System. In 1972 the Convention for the Conservation of Antarctic Seals (CCAS) was signed in London, and in 1980 the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) was adopted in Canberra. Meanwhile, the Consultative 20  Thomas Pailloux, “Pêche”, Annuaire du Droit de la Mer 2012, Tome XVII (Paris: Pedone, 2013), 534–537. 21  Signed at Washington, December 1, 1959, by Argentina, Australia, Belgium, Chile, France, Japan, New Zealand, Norway, South Africa, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, and the United States of America, 402 UNTS 71ff, see: http://www.ats.aq/documents/ats/treaty_original.pdf.

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Parties approved in the 1966 Santiago Meeting the Agreed Measures for the Conservation of Antarctic Fauna and Flora (Recommendation III–VIII), in force since November 1, 1982, requesting that Members enforce limitation of permits to take native mammals and birds. Nonetheless, with environmental demands emerging, the Antarctic Treaty members displayed a stronger commitment and drafted the Protocol on Environmental Protection to the Antarctic Treaty, which was adopted at the Madrid Meeting of Consultative Parties on October 4, 1991. At the same Meeting, four annexes to the Protocol were approved, the Second dealing with the Conservation of Antarctic Fauna and Flora. The Protocol and Annexes I–IV entered into force on January 14, 1998. Annex II on the Conservation of Antarctic Fauna and Flora Annex II contains provisions on mammals, defining ‘native mammal’ as “any member of any species belonging to the Class Mammalia, indigenous to the Antarctic Treaty area or occurring there seasonally through natural migrations”(paragraph (a)): stating that ‘take’ or ‘taking’ means to kill, injure, capture, handle or molest, a native mammal or bird, or to remove or damage such quantities of native plants that their local distribution or abundance would be significantly affected”(paragraph g): and that “International Convention for the Regulation of Whaling” means the Convention done at Washington on 2 December 1946” (paragraph i). Hence, it is clear that the Protocol is applicable to whales, not alternatively to but concurring with the ICRW, in the Antarctic or Southern Ocean. The Annex adds that “Taking or harmful interference shall be prohibited, except in accordance with a permit” (Article 3.1), and those permits should specify “when, where and by whom it is to be conducted.” Moreover, the Annex establishes the specific circumstances under which the issue of permits should be allowed, namely: “(a) to provide specimens for scientific study or scientific information; (b) to provide specimens for museums, herbaria, zoological and botanical gardens, or other educational of cultural institutions or uses,” or, finally, for unavoidable consequences of scientific activities not authorized by the previous paragraphs (Article 3.2). To streamline the limitations for taking mammals, the provision clarifies that “(a) no more native mammals, birds, or plants are taken than are strictly necessary to meet the purposes set forth in paragraph 2 above” and goes on to state that “(b) only small numbers of native mammals or birds are killed . . .” (Article 3.3). Among other provisions equally limiting the issuing of permits for taking mammals, the Protocol asserts that in the case of Specially Protected Species, not including mammals, only permits using non-lethal techniques where appropriate

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shall be issued (Article 3.5) and that, if taking permits are issued, those takings “shall be done in the manner that involves the least degree of pain and suffering practicable” (Article 3.6). From the above provisions of the Protocol the following consequences may be deduced: (a) The Protocol is applicable to whaling activities in Antarctic waters; (b) The Protocol expressly takes into account the provisions of the ICRW, which includes the decisions adopted by the Treaty organs for the operation of the Treaty; (c) The Protocol limits the issuing of permits for “scientific activities” to those takings that are strictly necessary, and in small number (Article 3.3); (d) The Protocol bans the issuance of permits “for purposes of scientific research” for large numbers of whales and without confirming nonlethal techniques where unavoidable. Together with the moratorium, the provisions of the Protocol impose severe limitations to issuing permits “for purposes of scientific research.” The Protocol is a treaty in force as is the ICRW and is equally binding for all the parties in the case. It complements the ICRW on the conditions for issuing permits “for the purpose of scientific research” for States Parties to both regimes, as in the present case.

The Inevitable Application of the 1969 Vienna Convention on the Law of Treaties

The Court, in order to reach its decision in the Whaling in the Antarctic case, narrowed its focus on the interpretation of Article VIII, paragraph 1, of the ICRW. Is it the ICRW a self-sufficient regime and Article VIII an autonomous provision? Should the Court have applied the articles of UNCLOS on marine mammals in its interpretation of Article VIII.1 of the ICRW? For its interpretive task, the Court relied on the general rule of Article 31 of the Vienna Convention on the Law of Treaties (the Vienna Convention or VCLT). The Court, no doubt, considered the 1969 Vienna Convention on the Law of Treaties (VCLT) applicable to the interpretation of Article VIII of the ICRW, even if the Vienna Convention is a subsequent treaty with regard to the ICRW. When the Court turns to examine in the first place “The issues concerning the interpretation and application of Article VIII of the Convention . . .” because they are “central to the present case,”22 it invokes article 31 of the Vienna Convention on the Law of Treaties (para. 79), a Convention subsequent to the ICRW. However, it is coherent because the Court had expressed in former 22  Whaling in Antarctica, Judgment, March 31 (2014), para. 50.

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cases that the Vienna Convention reflects customary international law.23 Also, when the Court asserted that the resolutions of the International Whaling Commission (IWC) rejecting lethal methods were not binding upon Japan because they had been adopted without its concurrence, and that, for that reason, they did not constitute a subsequent practice between the parties regarding the interpretation of the Convention (para. 83), it relies on Article 31. 3(a) and (b) of the VCLT. The case law of the Court reinforced the applicability of Article 31 to treaties previous to the entry into force of the 1969 Convention,24 not only the general rule of interpretation contained in Article 31 (1)25 but also specific rules including paragraphs 31.326 and 31.3 (c).27 Article VIII of the ICRW prescribes in paragraph 1 that, Notwithstanding anything contained in this Convention any Contracting Government may grant to any of its nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit, and the killing, taking, and treating of whales in accordance with the provisions of this Article shall be exempt from the operation of this Convention. Each Contracting Government shall report at once to the Commission all such authorizations which it has granted. Each Contracting Government may at any time revoke any such special permit which it has granted. Thus, the Court construed that permits granted by Governments ‘for purposes of scientific research’ and for that reason exempt from the operation of the Convention, are ‘not subject to the obligations under the Schedule concerning the moratorium on the catching of whales for commercial purposes, the prohibition of commercial whaling in the Southern Ocean Sanctuary and the moratorium relating to factory ships’ (para. 55). Then, reading Article VIII in the light of the object and purpose of the Convention, the Court underlines that ‘ensuring the conservation of all species of whales while allowing for their sustainable exploitation’ is the purpose of the Convention (para. 56). 23  See Arbitral Award of 31 July 1989, Judgment (1991), para. 48. 24  Land, island and maritime boundary dispute (El Salvador v Honduras) (1992), para. 373. 25  Dispute Regarding Navigational and Related Rights (Costa Rica v Nicaragua) 2009, para. 47; Pulp Mills on the River Uruguay (Argentina v Uruguay) (2010), para. 65. 26  Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v Malaysia) (2002), para. 37. 27  Oil Platforms (Iran v United States) Merits (2003), para. 41.

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Additionally to the VCLT, in other cases the Court had been receptive to invoke in support of its reasoning even non binding instruments under the presumption that they enjoy general acceptance by the international community, i.e., the Draft Articles on the Responsibility of States for Internationally Wrongful Acts, a set of provisions of progressive development and codification of general international law.28

The Concurrent Application of UNCLOS on the Interpretation of the ICRW

Notwithstanding the undisputed applicability of the general rule of interpretation established by the VCLT to the interpretation of the provisions of the ICRW, it cannot be denied that other general conventions were also relevant to the instant case, and that their application was also part of the rule of interpretation of the treaties. Thus, Article 31. 3 (c) of the VCLT states that for the interpretation of a treaty “There shall be taken into account, together with the context: [. . .] (c) any relevant rules of international law applicable in the relations between the parties.” In this respect, it must not be disregarded that the activity addressed by the ICRW is, and could only be, exercised at sea. Even if at the time of the adoption of the ICRW29 there was not a conventional comprehensive regime for the world oceans, nowadays the situation has changed. The worldwide binding United Nations Convention on the Law of the Sea (UNCLOS), adopted in 1983, has been in force since 1994. It is then reasonable to deduce that, even if it was from the perspective of the Court an encapsulated question embedded in the interpretation of treaties, the existing law of the sea is a ‘relevant rule applicable in the relation between the parties,’ all the more so if it contains specific 28  Jurisdictional Immunities of the State (Germany v. Italy), Judgment of 3 February 2012, on the applicability of Article 30 (a) of the International Law Commission’s Articles on the responsibility of States for internationally wrongful acts, paras. 15,58.137; Application of the Interim Accord of 13 September 1995 (The Former Yugoslav Republic of Macedonia v. Greece), Judgment of 5 December 2011, para. 164; Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010, on the applicability of Articles 34 to 37 of the Draft Articles, para. 273; Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo); Judgment of 19 June 2012, on the applicability of Article 36 of the Draft Articles, para. 49: cfr. Responsibility of States for internationally wrongful acts. Compilation of decisions of international courts, tribunals and other bodies. Report of the Secretary-General. UNGA A/68/72, 30 April 2013, 20, 23, 27, 30, 31, 43. 29  The Convention was adopted on December 2, 1946, at Washington D.C., 161 UNTS 143.

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provisions on mammals. UNCLOS has a particular character, merging the customary law of the sea with the progressive development that was the result of the exhaustive discussion taking place during the nine years of drafting of its provisions during the Third Conference of the Law of the Sea. The Convention concluded in a Package Deal, and for that reason it became not only the general opinio iuris on the law of the sea, but the opinio obligationis conventionalis30 of the international community on that province of international law. All the parties to the present case, Australia, Japan and New Zealand, are parties to the UNCLOS, which is the mandatory rule for the law of the sea not only for the parties but for the international community as a whole. This assertion is recognized by the substantive practice of States, by international case law and by the doctrine in the field, which highlights that UNCLOS is ‘the constitution of the oceans,’31 comprising all the activities developed at sea and establishing the rules for the governance of the sea.32 It may also be argued that according to the Court, “the compatibility of an act with international law can be determined only by reference to the law in force at the time when the act occurred”.33 The activities for the purpose of scientific research under the Program JARPA II are acts performed under the ICRW and the general framework of UNCLOS. The ICRW applies to those subjects involved in whaling activities in “factory ships, land stations, and whale catchers under the jurisdiction of the Contracting Governments” and “to all waters in which whaling is prosecuted by such factory ships, land stations, and whale catchers” (Article I,2). The Convention addresses the activity of whaling and the geographical ambit in which whaling takes place, the ocean waters. In 1946 there were no international conventions on the law of the sea and the customary rule regulating the jurisdiction of States dealt with the territorial sea, the contiguous zone and the high seas. Whaling happened in the high seas, a space characterized by four freedoms and no national jurisdictions, only the surveillance capacity of war ships. But since 1946, the international community has undergone many changes, and the ICRW has evolved accordingly, mainly through the decisions 30  Tiago Vinicius Zanella, Curso do Direito do Mar (Curitiba: Juruá, 2013) 357–359. 31  Tommy Koh, “Célébration du Trentième Anniversaire de l’overture à la signature de la Convention des Nations Unies sur le Droit de la Mer”, Annuaire du droit de la mer, vol. 17 (Paris: Institut du Droit Économique de la Mer/Pedone, 2012) 15–18. 32  Bernard H. Oxman, “La Convention des Nations Unies sur le droit de la mer: Une constitution pour les océans”, Annuaire du droit de la mer, vol. 17 (Paris: Institut du Droit Économique de la Mer/Pedone, 2012) 25–29. 33  Jurisdictional Immunities of the State (Germany v. Italy) para. 58.

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adopted by its own body, the International Whaling Commission and by the successive amendments of the Schedule.34 Moreover, UNCLOS includes special provisions on mammals applicable to all the species of mammals, and cetaceans are specifically included in the Annex of the Convention. It is also worth recalling that the large majority of members of the ICRW are parties to UNCLOS and were parties to the drafting of the Third United Nations Conference on the Law of the Sea. Accordingly, the articulated operation of both regimes should be presumed. Article 65 of UNCLOS establishes the duty of States to “cooperate with a view to the conservation of marine mammals” in the Exclusive Economic Zone (EEZ) and particularly in the case of cetaceans “through the appropriate international organizations for their conservation, management and study.” Article 120, on the other hand, extends the application of the duty of conservation and management of marine mammals to the high seas. The duty of cooperation for the conservation of mammals that these provisions imposed on States were welcome by the specialized doctrine because it was understood that they definitely applied to all States involved in whaling, not only to the members of the ICRW, and celebrated that since the entry into force of the UNCLOS, mammals “are thus, for the first time, fully protected in a UN Convention.”35 The fact that the ICRW is not a UN convention prevents the cooperation with the UN specialized organs and the participation in UN programs.36 Since then, a different legal structure was established for the world oceans, or the single world ocean, insofar as all the oceans have received different names but are connected and form a single salty water body, at present regulated by the United Nations Convention on the Law of the Sea. UNCLOS excludes nothing from its object, and recognizes rights, jurisdictions and freedoms (UNCLOS, Article 300). The ‘waters’ referred to in Article I.2 of the ICRW are regulated with new constraints and responsibilities particularly regarding pollution, marine ecosystems and protection of species. UNCLOS has rules for the protection of the living species, both in the EEZ and in the High Seas, and marine mammals are expressly included in those 34  The last one being approved at the 64th session, held in Panamá in July 2012, see: iwc.int/ private/downloads/1lv6fvjz06f48wc44w4s4w8gs/Schedule-February-2013.pdf. 35   Patricia Birnie, Alan Boyle & Catherine Redgwell, eds., International Law & the Environment (Oxford: Oxford University Press, 2009) 724. 36  FAO statistics and some FAO programmes include mammals, e.g., “Capacity Building for an Ecosystem Approach: Considering Interactions, including with Marine Mammals” (GCP / INT/920/JPN).

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chapters (Articles 65 and 120). Regarding highly migratory species, UNCLOS establishes that States whose nationals are engaged in the exploitation of the species listed in Annex I, which includes dolphins and cetaceans, should co-operate for ensuring conservation and promoting optimum utilization of those species (Article 64). The applicability of UNCLOS and especially of Article 64 was argued by the representative of New Zealand when answering the questions from the bench.37 Judge Cançado Trindade considered that not only UNCLOS but also other conventions adopted subsequent to the ICRW, e.g., the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES Convention), the 1979 Convention on Migratory Species of Wild Animals, the 1980 Convention on the Conservation of Antarctic Marine Living Resources and the 1992 U.N. Convention on Biological Diversity (CBD Convention), should be taken into account in the interpretation and application of the ICRW because they show a consistent evolution and “have helped to identify the wide range of matters of concern to the international community as a whole, such as the protection of wild fauna and flora.”38

Concluding Comment on the Interpretation of Article VIII of the ICRW

The reasoning of the Court is flawless and its findings, with one minor exception, the correct interpretation of Article VIII of the ICRW. It is not in detriment of the judgment to discuss that the Antarctic whaling scenario is more substantial than the sole ICRW, and that other legal regimes are equally binding for the same Parties and would support the findings of the Court. Interpretation, the interpretive exercise, central to the jurisdictional function, is a matter of ‘indeterminacy,’ being both linguistic and substantive, following the inspired description of professor James Crawford in his 2013 General Course at The Hague Academy of International Law.39 Interpretation cannot be enclosed in a single provision or in a single convention if other regimes are equally in force for the same matter. International law being a self-contained comprehensive universe built on different layers, isolating those layers does 37  Separate opinion of Judge Antônio Cançado Trindade, para. 9. 38  Id., para. 26. 39  James Crawford, Chance, Order, Change: The Course of International Law (The Hague: Hague Academy of International Law, 2014) 147–161.

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not help the interaction of these rules. Concurrent regimes should be jointly construed in order to reinforce their mutual competence. The overspecialization of subjects undermines the efficiency of each regime, and the effort should be driven towards the articulation of overlying regimes complementing one another.

The Southern Ocean: The Fifth Ocean? A Collateral Effect

The International Hydrographic Organization, the authoritative organization in charge of the description of the world oceans and seas, defined the Southern Ocean in its first (1929) and second (1937) editions of the Special Publication S-23, Limits of Oceans and Seas. However, in its third and current edition (1953)40 it recorded that the Antarctic or Southern Ocean had been omitted because most of the opinions expressed after the publication of the second edition, in 1937, considered that there were no real justifications for giving the name of Ocean to the maritime zone whose septentrional limits were difficult to establish as they changed according to the seasons. For this reason, the Organization expanded to the South the limits of the Atlantic, Pacific and Indian Oceans until they reach the Antarctic Continent. However, in the new draft of publication S-23 that was circulated among the member States but has not yet been approved, the Southern Ocean becomes the fifth ocean, keeping the limit of 60° S. This limit would not be a physical but a conventional limit. In fact, the physical limit for the waters surrounding the Antarctic Continent is determined by the boundaries of the Antarctic Circumpolar Current (ACC), known as the Antarctic Convergence, the large area separating Antarctic waters from other ocean waters. It is worth mentioning in this regard the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR), adopted in Canberra on May 20, 1980.41 CCAMLR defines the ambit of application of the Convention from the point of view of the Antarctic marine ecosystem, stating that it applies “to the Antarctic marine living resources of the area south of 60° South latitude and to the Antarctic marine living resources of the area between that latitude and the Antarctic Convergence which form part of the Antarctic marine ecosystem” (Article I.1). In order to define the lines for the application of the Convention, it adds that “The Antarctic Convergence shall be deemed to be a line joining the following points along parallels of latitude 40  International Hydrographic Organization, Limites des Océans et des Mers (Publication Spécial No. 23, S-23) 3rd ed., 1953, Imprente Monégasque, Monte Carlo, 4. 41  See text in: https://www.ccamlr.org/en/system/files/e-pt1.pdf.

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and meridians of longitude: 50°S, 0°; 50°S, 30°E; 45°S, 30°E; 45°S, 80°E; 55°S, 80°E; 55°S, 150°E; 60°S, 150°E; 60°S, 50°W; 50°S, 50°W; 50°S, 0°” (Article I.4). Then, the Antarctic Convergence expands in some areas up to 45° S latitude, meaning fifteen degrees north of the 60°S established by the Antarctic Treaty regime, adopting an ecosystem criterion. The CCAMLR applies to a larger zone than the 60°S, not in coincidence with the Antarctic Treaty. On the other hand, the 1972 Convention for the Conservation of Antarctic Seals had established that it “applies to the seas south of 60deg. South Latitude, in respect of which the Contracting Parties affirm the provisions of Article IV of the Antarctic Treaty” (Article 1), even if seals are part of the Antarctic ecosystem. The lack of consensus of States with regard to the criteria to be adopted to define the Southern Ocean together with the umbrella regime of the Antarctic Treaty for the area south of 60° S latitude (Article VI), led the IHO to propose a Southern Ocean comprising the waters surrounding the Antarctic Continent south of the 60°S latitude, in harmony with the 1959 Antarctic Treaty provision, which provides that the Treaty applies to the area south of 60° South (Article VI), making no distinction between water or land.42 The Court, which neither considered the Law of the Sea nor the Southern Ocean, did not question or made any observation regarding the Southern Ocean. The Court accepted that there is a Southern Ocean, and so did the parties to the case. Could the indirect recognition of the fifth ocean be, even inadvertently, a side effect of this case? Acronyms ICRW IWC LNTS NRJ RdC UNGA UNTS

International Convention for the Regulation of Whaling International Whaling Commission League of Nations Treaty Series Natural Resources Journal Recueil de Cours Hague Academy of International Law United Nations General Assembly United Nations Treaty Series

42  402 UNTS 71ff, see: http://www.ats.aq/documents/ats/treaty_original.pdf.

Chapter 13

The Exercise of Jurisdiction over Activities in Antarctica: A New Challenge for the Antarctic System Philippe Gautier Introduction Hugo Caminos not only shares with Hugo Grotius the same first name; he also possesses an encyclopedic knowledge of law of the sea. His long and rich experience in international law, however, is not limited to a specific branch of law. This explains that the present contribution will not address a topic related to the law of the sea but instead will examine a question relating to Antarctica, an area which presents a particular interest for Judge Caminos as well as Argentina. More precisely, this paper will examine legal issues regarding the exercise of jurisdiction in Antarctica. This topic has recently attracted a greater interest in legal writings1 and this reflects the expansion of human activities in the area located south of 60 degree South Latitude, i.e. the territorial scope of the 1959 Antarctic Treaty.

The Exercise of Jurisdiction in the Antarctic System

Sovereignty over a territory traditionally represents one of the two main sources of State jurisdiction, the other being the nationality. In the case of Antarctica, the exercise of territorial jurisdiction is complicated by the existence of territorial disputes between some of the seven States claiming sovereignty over parts of Antarctica, the non-recognition of sovereignty claims by other States parties and, last but not least, the fact that the USA and the Russian 1  See e.g., D. Rothwell, “Law enforcement in Antarctica”, in Antarctic Security in the TwentyFirst Century—Legal and policy perspectives, ed. A. Hemmings, D. Rothwell, K. Scott (London: Routledge, 2012), 136–153; F. Orrego Vicuna, “Port State Jurisdiction in Antarctica: A New Approach to Inspection, Control and Enforcement”, in Implementing the Environmental Protection Regime for the Antarctic, ed. D. Vidas (The Hague: Kluwer Law International, 2012), 45–69.

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Federation have reserved their right to raise sovereignty claims. In this context, Article IV2 of the Antarctic Treaty constitutes the pillar sustaining the whole system. It freezes the disputes over sovereignty issues by stating that the provisions of the treaty cannot be interpreted as prejudicing the position of any party to it as regards claims of territorial sovereignty, and by declaring that any act taking place during the entry into force of the treaty has no effect on the sovereignty claims. On the basis of this understanding, the Antarctic Treaty could then build a system of governance requiring the active participation of the States parties to it. Since 1959, the system has developed through the conclusion of additional and separate conventions dealing with specific activities (convention on the conservation of Antarctic seals in 1972 and the convention on the conservation of Antarctic marine living resources in 1980), the signature in 1991 of the Madrid Protocol on environmental protection to the Antarctic Treaty, and the adoption in 1995 of a decision (Decision 1 (1995)3) which clarifies the different legal tools available to the States Parties acting collectively during their annual meetings.4 Due to the increase in the number of tasks to be discharged by the States parties to the 1959 Antarctic Treaty and its 1991 2  Article IV 1. Nothing contained in the present Treaty shall be interpreted as: a. a renunciation by any Contracting Party of previously asserted rights of or claims to territorial sovereignty in Antarctica; b. a renunciation or diminution by any Contracting Party of any basis of claim to territorial sovereignty in Antarctica which it may have whether as a result of its activities or those of its nationals in Antarctica, or otherwise; c. prejudicing the position of any Contracting Party as regards its recognition or nonrecognition of any other State’s right of or claim or basis of claim to territorial sovereignty in Antarctica. 2. No acts or activities taking place while the present Treaty is in force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica or create any rights of sovereignty in Antarctica. No new claim, or enlargement of an existing claim, to territorial sovereignty in Antarctica shall be asserted while the present Treaty is in force. 3  The decision was adopted on the basis of a working Paper (XIX ATCM/WP 1) submitted by Belgium, Chile, France, Germany and the United Kingdom. 4  According to Decision 1 (1995): “measures” refer to a “text which contains provisions intended to be legally binding once it has been approved by all the Antarctic Treaty Consultative Parties . . . in accordance with paragraph 4 of Article IX of the Antarctic Treaty”; “Decisions” refer to a “decision taken at an Antarctic Consultative Meeting on an internal organizational matter”; “Resolutions” refer to a “hortatory text adopted at an Antarctic Consultative Meeting”.

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Environment Protocol, a light Secretariat was set up in 2004, with its seat in Buenos Aires. The mission of the Secretariat5 is essentially to provide support to the annual Antarctic Treaty Consultative Meeting (ATCM) and the ­meeting of the Committee for Environmental Protection (CEP) established by the Environment Protocol, to facilitate the exchange of information among the States Parties to the Antarctic Treaty, as required by the Treaty and its Environment Protocol, and to keep and archives documents of the ATCM. The unique character of the Antarctic System is that its functioning is based on the coordinated action of States Parties; in particular the States which are or have acquired a ‘consultative’ status.6 This action is twofold. First, whenever a specific activity is regulated through a new treaty, it will be the responsibility of the States parties to the Antarctic Treaty to ratify this treaty and to enact the legislation required to comply with its provisions in their legal orders. Second, measures may be adopted by the representatives of the States parties to the Antarctic Treaty at an Antarctic Treaty Consultative Meeting “in furtherance of the principles and objectives of the Treaty”.7 These measures may relate to a wide variety of topics8 and will enter into force after all the Consultative Parties to the Antarctic Treaty have confirmed their acceptance to be bound by them. In the two scenarios described above, each State concerned has to take appropriate action within its own national legal order in order to ensure that the new legal norms adopted within the Antarctic System are binding upon natural or juridical persons under its jurisdiction whenever they conduct activities in Antarctica. As an illustration, we may refer to article 49 of the Environment Protocol, which prohibits any activity—other than scientific research—relating to mineral resources. The national legislation of a 5  See the tasks of the Secretariat as listed in Measure 1 (2003). 6  Consultative Parties are the twelve original parties to the Antarctic Treaty as well as any other State which became a party to the Antarctic Treaty by accession “during such times as that Contracting Party demonstrates its interest in Antarctica by conducting substantial research activity there, such as the establishment of a scientific station or the despatch of a scientific expedition.” 7  Article IX, paragraph 1, of the Antarctic Treaty. 8  Pursuant to article IX, paragraph 1, of the Antarctic Treaty, measures may refer to inter alia “a. use of Antarctica for peaceful purposes only; b. facilitation of scientific research in Antarctica; c. facilitation of international scientific cooperation in Antarctica; d. facilitation of the exercise of the rights of inspection provided for in Article VII of the Treaty; e. questions relating to the exercise of jurisdiction in Antarctica; f. preservation and conservation of living resources in Antarctica.” 9  Article 7 Prohibition of mineral resource activities: “Any activity relating to mineral resources, other than scientific research, shall be prohibited”.

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particular State will then have to define the persons and entities which must comply with this prohibition. Obviously, that raises questions of jurisdiction. The exercise of jurisdiction constitutes a key element of the process and has to be properly addressed in order to ensure the functioning of the system. If not, there may be duplication. In the example, referred to above, of article 4 of the Environment Protocol, a permit could be issued by more than one State. In itself, duplication does not jeopardize the implementation of the Protocol— on the understanding that each permit is issued after a proper procedure—but it may impair the timely planning of an activity. Another consequence of a lack of coordination in national implementation mechanisms is that a gap could be created in the protection regime internationally agreed, for example if an activity taking place in Antarctica and organized on the territory, or by nationals, of a State party is not subject to any prior authorization or administrative procedure. As this may be seen, the efficiency of the Antarctic system largely depends on the manner on which States ensure compliance with the rules which are contained in, or have been adopted on the basis of, the Antarctic Treaty and its Environment Protocol. Surprisingly, until recently, not much attention was paid to jurisdictional issues. Even though the main attention of the 1959 Antarctic Treaty is not directed to the exercise of jurisdiction vis-à-vis activities taking place south of 60 degree South Latitude, it contains, however, some provisions on the subject. In the 1959 Antarctic Treaty, reference is made to jurisdiction in the context of the system of inspection set up by the Treaty in order to ensure the observance of its provisions. Pursuant to article VII, paragraph 1, each consultative party to the Treaty is entitled to designate observers who will “have complete freedom of access at any time to any or all areas of Antarctica”.10 In accordance with article VIII,11 paragraph 1, of the Treaty, observers are subject to the 10  Article VII, paragraph 2. 11  “Article VIII 1. In order to facilitate the exercise of their functions under the present Treaty, and without prejudice to the respective positions of the Contracting Parties relating to jurisdiction over all other persons in Antarctica, observers designated under paragraph 1 of Article VII and scientific personnel exchanged under sub-paragraph 1(b) of Article III of the Treaty, and members of the staffs accompanying any such persons, shall be subject only to the jurisdiction of the Contracting Party of which they are nationals in respect of all acts or omissions occurring while they are in Antarctica for the purpose of exercising their functions. 2. Without prejudice to the provisions of paragraph 1 of this Article, and pending the adoption of measures in pursuance of subparagraph 1(e) of Article IX, the Contracting

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exclusive “jurisdiction of the Contracting Party of which they are nationals in respect of all acts or omissions occurring while they are in Antarctica for the purpose of exercising their functions”. Article VIII, paragraph 1, applies the same principle to the scientific personnel exchanged in Antarctica between expeditions and stations under article III, paragraph 1(b) of the Treaty. The scope of this provision is limited to these two categories of persons since it expressly states that it applies “without prejudice to the respective positions of the Contracting Parties relating to jurisdiction over all other persons in Antarctica”. It may be added that, in the case of exchange of scientific personnel between stations, it is likely that agreements will be concluded between the States concerned in order to ensure that the head of a station is able to take appropriate enforcement measures to maintain law and order vis-à-vis all persons staying in the station, including foreign scientists. The Antarctic Treaty also provides in Article VIII, paragraph 2, that the “Contracting Parties concerned in any case of dispute with regard to the exercise of jurisdiction in Antarctica shall immediately consult together with a view to reaching a mutually acceptable solution”.12 This obligation to consult applies “pending the adoption of measures in pursuance of subparagraph 1(e) of Article IX”13 of the Treaty. The reference to article IX of the Treaty makes it clear that the drafters of the Treaty anticipated the need for further consideration of issues relating to jurisdiction in Antarctica. Indeed, article IX provides for regular meetings among the contracting parties for the purpose of exchanging information, consulting together on matters of common interest pertaining to Antarctica, and formulating and considering, and recommending to their Governments, measures in furtherance of the principles and objectives of the Treaty.14 The provision indicates different items15 to be put on the agenda of these meetings and, from among them, subparagraph (e) refers to ‘questions relating to the exercise of jurisdiction in Antarctica’. Parties concerned in any case of dispute with regard to the exercise of jurisdiction in Antarctica shall immediately consult together with a view to reaching a mutually acceptable solution.” 12  Article VIII, paragraph 2. 13  Id. 14  Article IX, paragraph 1. 15  See footnote 8.

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Finally, another provision of the Antarctic Treaty plays a role in jurisdictional matters, i.e., article VII, paragraph 5. Prima facie, the content of paragraph 5 of Article VII is straightforward. It imposes on each Contracting Party the duty to notify the other Contracting Parties of the conduct of certain activities. More precisely, under this provision, each Contracting Party is required to give notice in advance of: a. b. c.

all expeditions to and within Antarctica, on the part of its ships or nationals, and all expeditions to Antarctica organized in or proceeding from its territory; all stations in Antarctica occupied by its nationals; and any military personnel or equipment intended to be introduced by it into Antarctica subject to the conditions prescribed in paragraph 2 of Article I of the present Treaty.

However, the provision also sets out jurisdictional connections between States and the activities taking place in Antarctic: nationality of persons and ships engaged in an expedition to and within Antarctica, nationality of persons organizing expeditions to and within Antarctica, nationality of stations, territory in which expeditions to Antarctica are organized and territory from which expeditions to Antarctica proceed. The provision then attracted a special interest and, in practice, has been used as a building block to develop the Antarctic System, as this will be seen later. That said, for some time the item ‘questions relating to the exercise of jurisdiction in Antarctica’ did not generate discussions and rather remained a ‘sleeping beauty’ on the agenda of the Antarctic Treaty Consultative Meeting. For example, it may be noted that the ‘Agreed Measures for the Conservation of Antarctic Fauna and Flora’, adopted in 1964 to protect the environment of Antarctica, are silent on this matter. Although these measures impose the issuance of a permit for the conduct of certain activities16 in Antarctica, they, however, do not offer criteria to identify the States competent to exercise their

16  See e.g., Agreed Measures, article VI [Protection of native fauna], paragraph 1: “Each Participating Government shall prohibit within the Treaty Area the killing, wounding, capturing or molesting of any native mammal or native bird, or any attempt at any such act, except in accordance with a permit” and Article IX [Introduction of non-indigenous species, parasites and diseases], paragraph 1: “1. Each Participating Government shall prohibit the bringing into the Treaty Area of any species of animal or plant not indigenous to that Area, except in accordance with a permit.”

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jurisdiction by granting permits. They only refer to permits issued by an ‘appropriate authority’ without further precision.17 Nevertheless, interest for this topic did not completely disappear and, from time to time, proposals were in order to discuss issues of jurisdiction at an ATCM, in particular after the adoption of the Environment Protocol,18 for example with a view to ensuring a coordinated approach in the national legislation implementing its provisions.19 In general, such initiatives did not receive much support. For example, in Kyoto (XVIIIth ATCM), after consideration of a document presented by Uruguay under the agenda item “questions relating to the exercise of jurisdiction in Antarctica” (WP.32), the Meeting, while recognizing “the importance of this question, the solution of which was left deliberately open in Article IX (1) of the Antarctic Treaty”,20 considered that “the question raises some delicate and sensitive problems which need more, and careful, deliberations”.21

17  See Agreed Measures, Article II (e): “permit” means a formal permission in writing issued by an appropriate authority” and article III: “Each Participating Government shall take appropriate action to carry out these Agreed Measures”. See, however, article IV which refers to expeditions and stations of States parties to the Treaty: “ The Participating Governments shall prepare and circulate to members of expeditions and stations information to ensure understanding and observance of the provisions of these Agreed Measures, setting forth in particular prohibited activities, and providing lists of specially protected species and specially protected areas.”  18  See for example the Final Report of the XVIIth ATCM in Venice (1992): “[o]ne Contracting Party stressed the desirability of ensuring uniformity of interpretation of those provisions of the Protocol and its Annexes which required national legislation or other measures by the Parties for their implementation” (XVIIth ATCM (1992), paragraph 32 of the Final Report). The Meeting agreed “that this aspect was of considerable importance” (Id.) and decided “to include this item in the Agenda for the next Consultative Meeting” (XVIIth ATCM (1992), paragraph 33 of the Final Report). In Kyoto, during the XVIIIth Meeting, it was acknowledged that “it was desirable to harmonize interpretation where possible” (XVIIIth ATCM (1994), paragraph 37 of the Final Report) while recognizing “that uniform application of the Protocol is not possible given different national legislative approaches” (Id.). The Meeting recognized that “exchange of information on domestic legislation among consultative Parties is helpful to both the interpretation and implementation issues” (Ibid., para. 38) relating to the implementation of the Madrid Protocol. 19  For an overview of the national legislations adopted to implement the Environment Protocol, see K. Bastmeijer, The Antarctic environmental protocol and its domestic legal implementation (The Hague: Kluwer Law International, 2003). 20  Id., paragraph 122. 21  Id. See also, F. Orrego Vicuna, op. cit., 47.

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It then decided to keep the matter under review and to place it on the agenda of future meetings.22 The reasons for this lack of enthusiasm are not too difficult to understand. First of all, jurisdiction is a notion closely connected with sovereignty over a territory. In Antarctica, this immediately interferes with one of the most sensitive elements of the Antarctic System, i.e., article IV relating to the ‘claims to territorial sovereignty in Antarctica’. Another obstacle is the reluctance of some States to discuss in an international forum issues relating to the domestic implementation of their international obligations. Such matters might be seen as exclusive prerogatives of national authorities, which should not be subject to any form of international scrutiny or control. A last reason is probably linked to the remote character of Antarctica and the fact that human life therein is subject to extreme conditions. This creates difficulties for States, logistically and financially, to exercise jurisdiction in order to enforce laws and regulations and to control activities taking place on the South Pole.

The Progressive Recognition of Jurisdictional Issues by the ATCM

The Antarctic Treaty of 1959 contemplated mainly the conduct of scientific activities in Antarctica, through the organization of expeditions or the operation of stations. Under these circumstances and, as long as the Antarctic was a continent reserved to scientific activities conducted by State entities or closely monitored by governmental agencies, issues of jurisdiction could remain unattended. As regards governmental activities, it is clearly the responsibility of the State concerned to authorize, monitor and control activities conducted by it or on its behalf. Likewise, expeditions and stations are subject to the jurisdiction of the States which launch or operate them, without prejudice to the exercise of jurisdiction by the national States of observers and scientific personnel exchanged between expeditions and stations, as stated in article VIII, paragraph 1, of the Antarctic Treaty. However, a more elaborate approach is needed when it is required to exercise control over more complex activities, in particular non governmental activities. This may explain that, recently, the issue of jurisdiction surfaced again at the XXXVth ATCM held in Hobarth in 2012. This time the consideration of this matter led to the adoption of a resolution (Resolution 2 (2012)) by which the representatives of the Consultative Parties “Recommend that the 22  Id., paragraph 123.

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Parties and other Antarctic Treaty Consultative Meeting participants conduct a discussion on promoting broader Antarctic cooperation.” Cooperation on matters of juridiction in Antarctica does not take place in a legal vacuum. While the Antarctic system did not elaborate refined tools to deal with issues of jurisdiction, it contains, however, some criteria which present an interest for the determination of the States competent to exercise juridiction over activities in Antarctica. In this respect, reference was already made to the nationality principle which, in article VIII of the 1959 Antarctic Treaty, is applicable to observers and scientific personnel exchanged between expeditions and stations. Likewise, article VII, paragraph 5, offers a list of jurisdictional connections available to States parties to the Antarctic: nationality of persons and ships engaged in an expedition to and within Antarctica, nationality of persons organizing expeditions to and within Antarctica, ‘nationality’ of stations, territory in which expeditions to Antarctica are organized and territory from which expeditions to Antarctica do proceed. That said, article VII, paragraph 5, does not fully answer the questions raised by the exercise of jurisdiction over activities taking place in Antarctica. And this is due to the uncertain scope of activities covered by this provision. Paragraph 5 of article VII certainly covers all governmental activities, with the exception of activities on the high seas,23 but its scope is less clear as regards non-governmental activities, particularly under subparagraph (a) (“all expeditions to and within Antarctica, on the part of its ships or nationals, and all expeditions to Antarctica organized in or proceeding from its territory”). It could then be interpreted as referring only to those non-governmental activities in Antarctica in respect of which prior notification is expressly required under a specific obligation contained in an international instrument binding upon the State concerned. Difficulties related to the imprecise scope of annex VII may be evidenced by provisions contained in the 1991 Environment Protocol. For example, article 3 of the Protocol, entitled ‘Environmental principles’, specifies, in paragraph 1, that these principles apply to ‘all activities in the Antarctic Treaty area’.24 However, paragraph 4 of the same provision does not refer to ‘all activities’ 23  See article VI of the Antarctic Treaty: “The provisions of the present Treaty shall apply to the area south of 60° South Latitude, including all ice shelves, but nothing in the present Treaty shall prejudice or in any way affect the rights, or the exercise of the rights, of any State under international law with regard to the high seas within that area.” 24  “1. The protection of the Antarctic environment and dependent and associated ecosystems and the intrinsic value of Antarctica, including its wilderness and aesthetic values and its value as an area for the conduct of scientific research, in particular research essen-

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but uses an expression which refers to activities covered under article VII of the Antarctic Treaty: “Activities undertaken in the Antarctic Treaty area pursuant to scientific research programmes, tourism and all other governmental and non-governmental activities in the Antarctic Treaty area for which advance notice is required in accordance with Article VII (5) of the Antarctic Treaty”. The latter expression might then indicate that there are activities for which advance notice is not required under article VII, paragraph 5, of the Antarctic Treaty and which, therefore, are not covered by the Environment Protocol. Likewise, article 8 detailing the procedure to be followed for assessing the impact of activities on the environment of the Antarctic does not refer to all activities but to “any activities undertaken in the Antarctic Treaty area pursuant to scientific research programmes, tourism and all other governmental and non-governmental activities in the Antarctic Treaty area for which advance notice is required under Article VII (5) of the Antarctic Treaty”. A similar distinction may be found in comparing articles 15 and 16 of the Protocol. Article 15, which requires the parties to take action to respond to environmental emergencies in the Antarctic Treaty area, refers to emergency situations resulting from “scientific research programmes, tourism and all other governmental and non-governmental activities in the Antarctic Treaty area for which advance notice is required under Article VII (5) of the Antarctic Treaty”. For its part, article 16, which requires the parties to ‘elaborate rules and procedures relating to liability for damage’, refers in broader terms to “damage arising from activities taking place in the Antarctic Treaty area and covered by this Protocol”.25 In light of the uncertainty regarding the exact of scope of activities regulated under the Environment Protocol, several Consultative Parties26 took the initiative in 2005 to propose the inclusion of the item “Identification of activities covered by Article VII (5) of the Antarctic Treaty” on the agenda of the

tial to understanding the global environment, shall be fundamental considerations in the planning and conduct of all activities in the Antarctic Treaty area.” 25  Regarding the scope of the Annex VI to the Environment Protocol, see e.g., M. Johnson, “Liability for Environmental Damage in Antarctica: the Adoption of Annex VI to the Antarctic Environment Protocol”, 19 Geo. Int’l Envtl. L. Rev. 33 (2006): 33–55; K. Scott, “Liability for environmental damage in Antarctica: Annex VI to the Environmental Protocol on Liability Arising from Emergencies”, Environmental Liability, Vol. 14 (2006): 87–99; PH. Gautier, “L’Annexe VI au Protocole de Madrid relatif à la protection de l’environnement de l’Antarctique : ‘Responsabilité découlant de situations critiques pour l’environnement,’” Annuaire français de Droit international (2006): 418–431.  26  The Netherlands, Belgium, Chile, France, Germany, Italy, South Africa.

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next Consultative meeting27 which was scheduled to take place in Edinburgh. This initiative was “aimed at drawing up an indicative list of activities covered by this article”.28 There was no agreement, however, as to whether such topic should be discussed as a separate agenda item.29 Recently, a more mature approach was adopted by the ATCM towards issues of jurisdiction in Antarctica. This is the result of an incident arising out of the unauthorized presence of French yachts in the Antarctic Area and damage caused to a hut (‘Wordie House’), designated as a ‘Historic Site and Monument’ under the Antarctic Treaty. According to the information contained in the document circulated by France: “On 11 January 2010, two French nationals were discovered in Wordie House hut (HSM 62, Argentine Islands) by British workers from the United Kingdom Antarctic Heritage Trust (UKAHT). The British workers noted that damage had been caused there, apparently by the French nationals. They were crew-members from two vessels sailing under the French flag (the Esprit d’Equipe and the Eclipse) moored off the site. It transpired that these vessels had not submitted a preliminary environmental impact assessment, either with the competent French authority or with any other national authority, thereby infringing Article 8 and Annex 1 of the Madrid Protocol. French law brought in to implement the Antarctic Treaty penalizes the carrying-out of any undeclared activities in the Antarctic. Offenders are liable to administrative and criminal sanctions”.30 Accordingly, judicial proceedings were instituted before French Courts. The document also mentioned that the skipper of one of the two vessels concerned, the Esprit d’Equipe, “maintained in his defence that he had received from the Chilean authorities in Puerto Williams (Directemar-Armada de Chile) a document entitled Formulario condiciones de Zarpe de la embarcacion”.31 It further explained that such a document cannot replace an authorization for activity within the Treaty area as stipulated in the Madrid Protocol, as it appears to be simply a cruising permit to depart Chile. Its issue seems likely to cause a degree of confusion on the part of skippers. Clarification of the scope of the author­ ization afforded by this document at the time of its issue would eliminate this uncertainty.32 27  ATCM, XXVIIIth, WP 71. 28  Final Report of ATCM, XXVIIIth, paragraph 240. 29  See Final Report of ATCM, XXVIIIth, paragraph 240. 30  ATCM, XXVIIIth, WP 71, 3. 31  Id., 4. 32  Id.

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France reported this incident to the ATCM in 201133 and made the suggestion that the system put into place among the parties to electronically exchange information should be improved and that the Consultative Parties should “engage in discussions about the difficulties stemming from the exercise of jurisdiction in Antarctica . . .”.34 Through this pragmatic approach, the Meeting was able to engage into a discussion of this topic during the XXXVth ATCM in Hobart (2012).35 On this basis, a resolution was adopted by the ATCM (Resolution 2 (2012) ‘Cooperation on questions related to the exercise of jurisdiction in the Antarctic Treaty area’) which provides as follows: The representatives Recalling Article IX(1)(e) of the Antarctic Treaty, which provides that Contracting Parties consult on “questions relating to the exercise of jurisdiction in Antarctica”; Convinced of the necessity to consider such questions with respect to human activities and incidents occurring in the Antarctic Treaty area; Noting the increase of human activities in the Antarctic Treaty area; Acknowledging the need to promote compliance with law in the Antarctic Treaty area; Recognising the unique challenges, both practical and legal, of law enforcement in the Antarctic Treaty area; Recommend that: the Parties cooperate to institute discussion on issues related to the exercise of jurisdiction in the Antarctic Treaty area. The Meeting also decided to “establish an intersessional contact group (ICG), dedicated to cooperation on questions related to the exercise of jurisdiction in the Antarctic Treaty area.”36 This matter was further discussed during the XXXVIth ATCM in Brussels in 201337 and the stress is now placed on the need to improve exchange of information among the parties. Such exchange could then concern precise and practical data such as publically available information on cases and laws which have relevance to the Antarctic, including how the powers given to station commanders 33  See ATCM, XXXIV, WP 11. 34  Id., 5. 35  See Final Report ATCM, XXXVth, paragraphs 45–48. 36  Id., para. 47. 37  See Final Report ATCM, XXXVIth, paragraphs 41–47.

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and ship and aircraft captains differ between states, and whether these persons have any powers with respect to infractions committed in the Antarctica Treaty area.38 Comments On the basis of the developments highlighted above, it appears that the parties to the Antarctic Treaty are now considering ways and tools in order to deal with jurisdictional issues. In this respect, a first question to be addressed concerns the jurisdictional links to be used by States parties to the Antarctic Treaty. At first look, this matter may seem complicated in light of refined distinctions which list a large number of factors. For example, K. Scott cites 9 different jurisdictional links contemplated in the context of the implementation of annex VI to the Environment Protocol: the state where the activity was organized; the state which authorized the activity; the state were the operator is incorporated; the state where the operator conducts its business; the state which gives nationality to the operator; the state within which the vessel carrying out the activity is registered; the state from which the operator departs to the Antarctic; the state in which any action for compensation for environmental damage may be taken; and the state within which the operator’s insurance is held.39 This complexity may be further reinforced by examples of fictious cases involving damages, injuries to persons, issues of law of the sea and multiple nationalities. That said, reality does not always exceed the fiction and, as this was noted in the incident of ‘Wordie House’ hut, facts may be less complex than the scenarios imagined by lawyers. In the same vein, whatever sophisticated jurisdictional links may be elaborated, these links at the end come back to two essential elements: nationality and territory.

38  Id., para. 45. See also WP 44 submitted by France, which report to the ATCM on the work of the Intersessionnal Contact Group (ICG) on the exercise of jurisdiction. 39  K. Scott, “Liability for environmental damage in Antarctica: Annex VI to the Environmental Protocol on Liability Arising from Emergencies”, Environmental Liability, Vol. 14 (2006), 90, footnote 35.

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Nationality, in a broad sense, would cover jurisdiction exercised by a State over its nationals—natural or legal persons—, ships flying its flag, airplanes registered in that State, as well as the stations that it operates in Antarctica (for example as regards the admission of groups of tourists in a station). In accordance with article VII, paragraph 5, of the Antarctic Treaty, Territory would cover activities in Antarctica which would be organized on the territory of a particular State (e.g. by a tour operator) or which would proceed from its territory (e.g. from a port of that State). Territorial jurisdiction exercised on the South pole or on the maritime areas off its coast40 on the basis of sovereignty claims over Antarctica would probably raise difficulties since, as this is stated in the document presented by France in 2012, “article IV of the Antarctic Treaty prohibits Parties to take any measure that would imply an exercise of their sovereignty on a territorial basis. Thus, the exercise of jurisdiction on a territorial basis would enter in conflict with this article IV.”41 Additional jurisdictional links could certainly be invoked, such as the “the jurisdiction of the State that granted an activity authorization in the Treaty area”42 but, ultimately, such an authorization is granted by a State for the reason that it may exercise jurisdiction, through its territory or nationality, over these persons or entities. A second issue relates to the scope of activities which are regulated under the Antarctic Treaty. Attention was already drawn in this context on the relatively imprecise character of article VII, paragraph 5, of the Antarctic Treaty. A solution to overcome this difficulty could be to ensure, for example through a measure adopted by an ATCM, that article VII would be given a uniform interpretation as regards activities it covers. That is probably a too radical approach; it may be wiser to adopt a pragmatic approach and to provide additional clarifications when the need arises. It may be observed in the respect that the Antarctic system, up to now, always found the necessary resources to evolve in a pragmatic way when faced with new challenges. As an illustration, reference may be made to the additional conventions concluded to regulate activities, such as fishing and hunting of seals, which were not covered by the Antarctic Treaty for the reason that its provisions 40  See e.g. the Australian Act of 1999 (Environment Protection and Biodiversity Conservation Act) which prohibits whaling activities offshore the Australian Antarctic Territory not only with respect to Australian nationals and vessels but also vis-à-vis all persons and vessels. “However, the position taken by various Australian governments is that notwithstanding the provisions of Australian law considerable difficulties would be faced by any active enforcement of that law”: D. Rothwell, op. cit., 148. 41  XXXVth ATCM, 2012, WP28, 4. 42  Id., 4.

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are without prejudice to the high seas’ freedom.43 Those conventions contain the necessary criteria enabling States parties to exercise jurisdiction in order to ensure compliance with their provisions.44 In the Convention for the Conservation of Antarctic Seals (1972), article 2 (‘Implementation’) states that the “Contracting Parties agree that the species of seals . . . shall not be killed or captured within the Convention area by their nationals or vessels under their respective flags except in accordance with the provisions of this Convention” and that, for this purpose, “Each Contracting Party shall adopt for its nationals and for vessels under its flag such laws, regulations and other measures, including a permit system as appropriate, as may be necessary to implement this Convention.” The Convention on the Conservation of Antarctic Marine Living resources (1980)45 follows a similar approach. Likewise, if the need arises, nothing prevents the Consultative Parties from developing additional criteria through the existing tools available under the Antarctic Treaty and its Environment Protocol, e.g. through the adoption of measures under article IX of the Treaty or additional annexes to the Protocol. To a certain extent, this method was already implemented in article 2 of annex IV and in articles 1 and 2 (d) of annex VI to the Environment Protocol, these articles providing more precise jurisdictional connections. Article 2 (‘Application’) of annex IV (‘prevention of marine pollution’) specifies that the annex “applies, with respect to each Party, to ships entitled to fly its flag and to any other ship engaged in or supporting its Antarctic operations, while operating in the Antarctic Treaty area.” Annex VI on liability arising from environmental emergencies, defines in its article 1 the scope of application of its provisions. Article 1 then makes the usual reference to article VII, 43  See article VI of the Antarctic Treaty (text supra in footnote 23). 44  Reference may also be made to the Convention on the Regulation of Antarctic Mineral Resource Activities (1988) which contained an sophisticated regime for the exploration and exploitation of mineral resources and, for that purpose, had to define precisely the term “operator” and “sponsoring State” (see article 1, paragraph 11 and 12). 45  While the CCAMLR does not contain a provision as explicit as article VI of the 1972 Convention, it is based on the exercise of flag State’s jurisdiction. See article XXI (1): “Each Contracting Party shall take appropriate measures within its competence to ensure compliance with the provisions of this Convention and with conservation measures adopted by the Commission to which the Party is bound in accordance with Article IX of this Convention”, and article XX (2) “The Members of the Commission shall provide, in the manner and at such intervals as may be prescribed, information about their harvesting activities, including fishing areas and vessels, so as to enable reliable catch and effort statistics to be compiled.”

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paragraph 5, of the Antarctic Treaty: “This Annex shall apply to environmental emergencies in the Antarctic Treaty area which relate to scientific research programmes, tourism and all other governmental and non-governmental activities in the Antarctic Treaty area for which advance notice is required under Article VII(5) of the Antarctic Treaty, including associated logistic support activities”. However, it also clarifies the scope of the annex as regards tourist activities—a non-governmental activity—on board of ships in maritime areas south of 60 degree South Latitude by expressly indicating that the annex “shall apply to all tourist vessels that enter the Antarctic Treaty area”. Furthermore, since most of the provisions of the annex are directed to activities conducted by an ‘operator’, the annexe gives a definition of this term: “any natural or juridical person, whether governmental or non-governmental, which organises activities to be carried out in the Antarctic Treaty area”.46 In principle, these activities need to be authorized and controlled by a State party and annex VI contains specific obligations to be discharged by such a State47 in the event of environmental emergencies. This logically requires the establishment of a jurisdictional connection between the operator and the State concerned. In this respect, article 2 of Annex VI gives a definition of the term ‘operator of the Party’, i.e.: an operator that organises, in that Party’s territory, activities to be carried out in the Antarctic Treaty area, and: (i) those activities are subject to authorisation by that Party for the Antarctic Treaty area; or (ii) in the case of a Party which does not formally authorise activities for the Antarctic Treaty area, those activities are subject to a comparable regulatory process by that Party. As this may be seen from the provision, two conditions have to be met in order to qualify as a State of the operator for the purpose of Annex VI: the organization of the activity on that State’s territory and such activity is subject to author­ization (or comparable regulatory process) by that State. In light of these examples, it may be assumed that, in the future, a similar approach could be adopted, on a case by case basis, whenever regulations need to be adopted to address specific activities, in particular tourism and other non-governmental activities. 46  Article 2, paragraph c. 47  See e.g., articles 3, 4, 5 and 11.

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A third aspect of the question relates to the cooperation among States Parties. Issues of jurisdiction may be avoided or solutions may be facilitated if prior information is exchanged on inter alia implementation legislation adopted by States parties, authorizations granted with respect to activities, authorities competent to take law enforcement measures or collect evidence. In this regards, it has been indicated that, in the recent years, steps have been taken by the Consultative Parties in order to enhance their cooperation. To conclude these comments, three additional items will be briefly mentioned, which constitute further challenges for the Antactic System in the matter of the exercise of juridiction. First, the development of international regulations on human activities in Antarctica and the adoption of implementation legislation at national level will increase the need to take law enforcement measures vis-à-vis persons which do not comply with international obligations. In law enforcement activity, jurisdiction exercised on the basis of nationality remains probably the solution preferred by a majority of States parties. This does not exclude, however, that other States could be entitled to intervene, a scenario which is contemplated in article 5 of annex VI to the Environment Protocol in the event of imminent ‘threat of significant and harmful impact to the Antarctic environment’. Second, activities at sea raises specific jurisdictional issues due to the ‘without prejucide’ clause included in article VI of the Antarctic Treaty according to which “nothing in the present Treaty shall prejudice or in any way affect the rights, or the exercise of the rights, of any State under international law with regard to the high seas within that area.” This provision does not prevent, however, States Parties, of agreeing to jointly regulate specific activities at sea. In the past, this was done through the adoption of separate conventions but this approach does not seem strictly necessary. As an example, it may be noted that it was possible to regulate activities conducted at sea through annex IV48 and annex VI49 to the Environment Protocol. Finally, it should be kept in mind that juridictional issues concerning Antarctica are likely to concern third parties, for example when activities in Antarctica are organized on the territory of a third State, by an operator incorporated therein, or with a ship flying its flag. The need to ensure that no activity takes place in Antarctica contrary to the Antarctic Treaty and its Protocol is clearly expressed

48  See annex IV (prevention of marine pollution) and annex VI which, pursuant to its article 2, applies “to all tourist vessels that enter the Antarctic Treaty area”. 49  See supra paragraph 34.

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in provisions included in these two treaties.50 The implementation of those provisions vis-à-vis nationals of third States certainly represents another challenge for the Antarctic system. Conclusion The implementation by States of internationally agreed rules over a large continent presupposes logically that there is a common understanding of the criteria which may be used to exercise jurisdiction. However, the situation is more complex in the case of Antarctica in light of the sovereignty issues over parts of the South Pole. This explains that, in 1959, the Antarctic Treaty did not intend to solve this matter and entrusted the parties to it with the task of developing appropriate tools. In this context, it was noted that the provisions contained in article VII, paragraph 5, have been used by the parties to determine the scope of activities covered by the Treaty as well as to define criteria for the exercise of jurisdiction over the said activities. The adoption of the Environment Protocol and the obligation for States parties to ensure that persons under their jurisdiction comply with its provisions make it necessary to review the question of the exercise of jurisdiction in Antarctica. The need to develop a collective approach towards jurisdictional issues has been gradually recognized by the Consultative Parties and the ATCM is taking steps to reinforce cooperation and exchange of information with a view to responding to jurisdictional issues in a more efficient manner. Jurisdictional connections available to States in the exercise of their jurisdiction relate broadly to the nationality or territoriality principles. That said, there 50  See article X of the Antarctic Treaty: “Each of the Contracting Parties undertakes to exert appropriate efforts, consistent with the Charter of the United Nations, to the end that no one engages in any activity in Antarctica contrary to the principles or purposes of the present Treaty”, and article 13, paragraph 5, of the Environment Protocol: “5. The Antarctic Treaty Consultative Meetings shall draw the attention of any State which is not a Party to this Protocol to any activity undertaken by that State, its agencies, instrumentalities, natural or juridical persons, ships, aircraft or other means of transport which affects the implementation of the objectives and principles of this Protocol.” See also article X, paragraph 1, of the Convention on the conservation of Antarctic marine living resources (1980): 1. The Commission shall draw the attention of any State which is not a Party to this Convention to any activity undertaken by its nationals or vessels which, in the opinion of the Commission, affects the implementation of the objective of this Convention.

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is probably no need—and no desire among the States parties—to develop a uniform approach regarding the exercise of jurisdiction in Antarctica. The Antarctic system has been able to evolve whenever faced with new challenges. When the need arises, nothing prevents the Consultative Parties from developing additional criteria with respect to specific activities, in separate conventions or through the mechanisms available under the Antarctic Treaty and its Environment Protocol, e.g. through the adoption of a measure under article IX of the Treaty, a resolution, or an annex to the Protocol.

Chapter 14

The System of Inspection of the Commission for the Conservation of Antarctic Marine Living Resources Ariel R. Mansi Concerns raised in the 1970s by the adverse impact that the overharvesting of krill, as the main prey for higher level predators, might have on other species in Antarctic waters moved the Antarctic Consultative Parties in 1977 towards negotiating a regime within the framework of the Antarctic Treaty addressed to the conservation of marine living resources in the southern oceans.1 To that end and following consultations as well as scientific advice, an international conference was held in Canberra, Australia, from 7 to 20 May 1980. As a result thereof the text of the Convention on the Conservation of Antarctic Marine Living Resources was agreed (CCAMLR, the Convention).2 The Convention3 establishes a Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) as a regulatory body and policy maker. A Scientific Committee is also established as a consultative body which provides the Commission with advice regarding conservation and management. Both the Commission and the Scientific Committee (SC) are composed 1  The provisions contained in Recommendation IX-2 of theAntarctic Treaty Consultative Meeting (ATCM) led to the establishment of the Convention and included the principles that were subsequently developed in the Convention (www.ats.aq). 2  On 20 May 1980, the following States signed the Convention: Argentina, Australia, Belgium, Chile, Federal Republic of Germany, France, German Democratic Republic, Japan, New Zealand, Norway. Poland, Republic of South Africa, Union of Soviet Socialist Republics, United Kingdom of Great Britain and Northern Ireland and United States of America. The Convention entered into force on 7 April 1982. All above mentioned States have ratified the Convention and are Members of the Commission. Since 1982 Brazil, European Community, India, Italy, Namibia, People’s Republic of China, Republic of Korea, Spain, Sweden, Ukraine and Uruguay have acceded to the Convention and are Members of the Commission. At present Bulgaria, Canada, Cook Islands, Finland, Greece, Islamic Republic of Pakistan, Mauritius, Netherlands, Peru, Republic of Panama and Vanuatu are Parties to the Convention but not Members of the Commission. 3  Convention for the Conservation of Antarctic Marine Living Resources (1980): http//www .ccamlr.org/en/publications/basic-documents); 1329 UNTS 48.

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by representatives of the Commission Members.4 A Secretariat, located in Hobart, Australia, provides administrative services and keeps the flow of information necessary for the appropriate functioning of CCAMLR. The System of Inspection has been established by the Commission within the framework of the Convention. Therefore, and prior to examining thoroughly this theme, consideration will be given to some distinctive aspects of CCAMLR’s legal regime.5 4  There have been thirty two annual Commission Meetings in Hobart, Australia, and two Special Commission Meetings. The XXXII Commission Meeting took place in 2013. 5  The legal regime consisting of the Convention and the conservation measures and other measures adopted by the Commission is a multilateral scheme which exceptionally admits the application of national measures in accordance with the Statement of the Chairman of the Conference on the Conservation of Antarctic Marine Living Resources, 19 May 1980. The text of this Statement, which follows, was included in the publication of the Final Act of the Conference: “(. . .) 1. Measures for the conservation of Antarctic marine living resources of the waters adjacent to Kerguelen and Crozet, over which France has jurisdiction, adopted by France prior to the entry into force of the Convention, would remain in force after the entry into force of the Convention until modified by France acting within the framework of the Commission or otherwise. 2. After the Convention has come into force, each time the Commission should undertake examination of the conservation needs of the marine living resources of the general area in which the waters adjacent to Kerguelen and Crozet are to be found, it would be open to France either to agree that the waters in question should be included in the area of application of any specific conservation measure under consideration or to indicate that they should be excluded. In the latter event, the Commission would not proceed to the adoption of the specific conservation measure in a form applicable to the waters in question unless France removed its objection to it. France could also adopt such national measures as it might deem appropriate for the waters in question. 3. Accordingly, when specific conservation measures are considered within the framework of the Commission and with the participation of France, then: (a) France would be bound by any conservation measures adopted by consensus with its participation for the duration of those measures. This would not prevent France from promulgating national measures that were more strict than the Commission’s measures or which dealt with other matters; (b) in the absence of consensus, France could promulgate any national measures which it might deem appropriate. 4. Conservation measures, whether national measures or measures adopted by the Commission, in respect of the waters adjacent to Kerguelen and Crozet, would be enforced by France. The system of observation and inspection foreseen by the Convention would not be implemented in the waters adjacent to Kerguelen and Crozer except as agreed by France and in the manner so agreed. 5. The understandings set forth in paragraphs 1–4 above, regarding the application of the Convention to waters adjacent to the islands of Kerguelen and Crozet, also apply to waters adjacent to the islands within the area to which this Convention applies over which the existence of State sovereignty is recognized by all Contracting Parties.” “No objections to the statement were made”. Under Commission for the Conservation of Antarctic Marine Living Resources, see Basic Documents, Part 1, December 2013 (www.ccamlr.org).

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It may be noted that the effectiveness of the multilateral regime created by the Convention is a consequence of the close cooperation developed between the Commission and the Scientific Committee. The Commission is the only international organization within the Antarctic Treaty System. It enjoys legal personality in the territory of its State Parties as may be necessary to perform its function and achieve the purposes of the Convention.6 Decision making by the Commission on substantive matters is based on the rule of consensus.7 The decision of whether or not a matter is substantive is made by consensus.8 The Convention, including its System of Inspection, is a substantial part of the wider structure of the Antarctic Treaty System.9 Notwithstanding the singularities of the regime established by the Convention, its Preamble and its text indicate the clear intention of the authors of the document to ensure CCAMLR’s consistency with the Antarctic Treaty.10 In such context the use of Antarctica for peaceful purposes and the freedom of scientific research are paramount. Accordingly, Article III establishes that The Contracting Parties, whether or not they are Parties to the Antarctic Treaty, agree that they will not engage in any activities in the Antarctic Treaty area contrary to the principles and purposes of that Treaty and that, in their relations with each other, they are bound by the obligations contained in Articles I and V of the Antarctic Treaty. The Convention provides a comprehensive conservation regime based on the ecosystem approach to management. Following the concept of biological and oceanographic unity it establishes an area whose boundaries lie northwards and exceeding the area of application of the Antarctic Treaty up to

6  The Antarctic Treaty Secretariat which is located in Buenos Aires, Argentina, is deemed not to be an international body as such though it enjoys some limited legal personality in order to enable it to carry out its functions within the host country. 7  J. Turner, J. Jabour, D. Miller, “Consensus or not Consensus: that is the CCAMLR Question”, 22 Ocean Yearbook, ed. A. Chircop, S. Coffen-Smout, M. McConnell (Leiden: Martin Nihjoff, 2008). 8  Convention, Article XII. 9  See R. Guyer, The Antarctic System (1973), 139 Hague Recueil, 149. The Protocol to the Antarctic Treaty on Environmental Protection provides in Article I(e) for the purposes of the Protocol the following definition: “Antarctic Treaty system means the Antarctic Treaty, the measures in effect under that Treaty, its associated separate international instruments in force and the measures in effect under those instruments” (www.ats.aq). 10  Antarctic Treaty (1959), 402 UNTS 71.

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the Antarctic Convergence,11 thus exceeding the area of application of the Antarctic Treaty. According to Article I, the Convention applies to Antarctic marine living resources which form part of the Antarctic marine ecosystem. Antarctic marine living resources means the populations of fin fish, molluscs, crustaceans and all other living organisms, including birds found south of the Convergence. Antarctic marine ecosystem means the complex of relationships of Antarctic marine living resources with each other and with their physical environment. Whales and seals are not under the authority of the Commission on account of the respective conventions already in force.12 This may be understood in the sense that those conventions are to be given primacy. However, in the light of the ecosystem approach enshrined in the Convention the needs of Antarctic whales and seals must be taken into account by the Commission at the time of managing other marine living resources.13 The objective of the Convention is the conservation of Antarctic marine living resources (Article II.1), a concept which for the purposes of the Convention includes rational use (Article II.2). It has been suggested that ‘rational use’ may be defined as “the use of the resources of an ecosystem in such a way that the goods and services provided by that ecosystem are maintained in perpetuity along with the biological diversity and ecosystem structure on which they depend”.14 This definition seems to be inappropriate since in the context of CCAMLR it would not be reasonable to restrict the concept of “rational use” to the sustainable use of the resources and to the conservation of the ecosystem, if necessary, to the exploited populations, because the objectives of the Convention also apply to non-exploitable species, as it is established in Article I.2.15 CCAMLR regulates harvesting and associated activities in the Convention area to ensure the principles of conservation set out in Article II. 2. Accordingly, 11  A. Watts, International Law and the Antarctic Treaty System (Cambridge: Cambridge University Press, 1992), 151: The Antarctic Convergence is the sea area “where the cold Antarctic waters, which are moving northwards dip beneath the warmer southwardmoving subtropical waters”. It is deemed to be a line joining the following points along parallels of latitude and meridians of longitude: 50°S, 0°; 50°S, 30°E; 45°S, 30°E; 45°S, 80°E; 55°S, 80°E; 55°S, 150°E; 60°S, 150°E; 60°S, 50°W; 50°S, 50°W; 50°S, 0°. 12  Convention for the Regulation of Whaling (1946), 161 UNTS 72 and the Convention for the Conservation of Antarctic Seals (1972), 1080 UNTS 175. 13  W. Bush, Antarctica and International Law, vol. 1 (New York: Oceana Publications Inc., 1982), 401–408. 14  SC-CAMLR-XXX Report Annex 6 (Report of the Workshop on Marine Protected Areas, Brest, France, 29 August to 2 September 2011) paragraph 5.16. 15  SC-CAMLR-XXX Report paragraph 7.18.

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exploited species should not be allowed to fall below levels assuring stable recruitment, maintaining ecological relationships and preventing or minimizing the risk of changes non reversible over two or three decades. The function of the Commission is to give effect to the objective and principles of the Convention. The Commission compiles data on the status of and changes in population of Antarctic marine living resources and on factors affecting harvested species and dependent or related species. It also analyses and publishes relevant information, formulates, adopts and revises conservation measures on basis of the best scientific evidence available16 and implements the System of Inspection and the Scheme of Scientific International Observation17 in accordance with Article XXIV of the Convention. The System of Inspection, as well as vessel licensing, monitoring of vessels, monitoring of transhipments, the Vessel Monitoring System (VMS), the Catch Documentation Scheme (CDS), Contracting Parties IUU Vessel List18 and NonContracting Parties IUU Vessel List are tools implemented to support conservation and management of Antarctic Marine Living resources. The operation of conservation measures and compliance systems is reviewed every year by the Standing Committee on Implementation and Compliance (SCIC), which as a subsidiary body provides advice to the Commission.19 The CCAMLR System of Inspection was adopted in 1988 as a joint mechanism to support at-sea inspections carried out in the Convention area by Member states of the Commission to flag vessels of all Contracting Parties.20 Previous authorisation by the Flag State is not a requisite. Its text, which is not formally a conservation measure as such, was developed by the Commission by means of binding report language regulating i.a. the procedures for the designation of inspectors, their rights and responsibilities, the procedures for boarding and inspection, inspection reporting, the procedures concerning prosecutions and the imposition of sanctions by the Flag State. If sanctions are 16  Article IX of the Convention refers to conservation measures adopted by the Commission. 17  www.ccamlr.org. 18  Illegal, Unregulated and Unreported Fishing. 19  http://www.ccamlr.org/en/compliance. 20  The System of Inspection was adopted at CCAMLR-VII (Report paragraph 124) and amended at CCAMLR-XII (Report paragraphs 6.4 and 6.8), CCAMLR-XIII (Report paragraph 5.26), CCAMLR-XIV (Report paragraphs 7.22, 7.26 and 7.28), CCAMLR-XV (Report paragraph 7.24), CCAMLR-XVI (Report paragraph 8.14), CCAMLR-XVIII (Report paragraph 8.25), CCAMLR-XXV (Report paragraph 12.73) and CCAMLR-XXVI (Report paragraphs 13.79 to 13.83). The Terms of Reference and Organisation of Work of SCIC are based on the Commission’s Decision as adopted at CCAMLR-XXI (Report paragraph 5.16) Annex 5. See Basic Documents, Part 9 (www.ccamlr.org).

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to be applied the Flag State shall be provided with conclusive evidence resulting from the System of Inspection. It should be noted that the CCAMLR System of Inspection is an exception to the basic principle of international law which establishes Flag State control in the high seas on vessels flying its flag, including fishing vessels. This principle is inherent to state sovereignty and, therefore, derogations from it should be interpreted restrictively. The United Nations Convention on the Law of the Sea (UNCLOS) has codified the pertinent customary law, while providing specific exceptions to Flag State jurisdiction and/or to Flag State control in the high seas.21 Accordingly, the CCAMLR System of Inspection enables Members to assert control22 in the Convention area on vessels flagged to Contracting Parties found in the Convention area.23 The CCAMLR System of Inspection does not apply outside the Convention area nor is it applicable in the Convention Area with respect to vessels flagged to States which are not Parties to the Convention, unless authorisation is given by the Flag State.24 With respect to the application of at-sea inspections in Statistical Subareas of the Convention 48.2 and 48.3 (South Georgia) and 48.4 (South Sandwich Islands) a significant role is played by the sovereignty dispute between Argentina and the United Kingdom over the Malvinas (Falkland), South Georgia and South Sandwich Islands and surrounding waters on account of its implications for the CCAMLR System of Inspection. 21  UNCLOS (1982), 1833 UNTS 3, see Article 92.1: “Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas . . .”. Also see Article 111, which refers to the right of visit in the high seas as an exception to Flag State control. 22  According to the System of Inspection Members are not entitled to assert jurisdiction on foreign vessels but only to assert control in the Convention area on vessels flagged to Contracting Parties by means of verifying its flag and documentation on board as well as by verifying compliance with the Convention and measures adopted by the Commission. 23  With respect to the application of at-sea inspections in Statistical Subareas of the Convention 48.2 and 48.3 (South Georgia) and 48.4 (South Sandwich Islands) reference shall be made to the sovereignty dispute between Argentina and the United Kingdom over the Malvinas (Falkland), South Georgia and South Sandwich islands and surrounding waters (“Question of the Malvinas Islands/Falkland”) and its consequences concerning the CCAMLR System of Inspection. See n. 5 above, Statement by the Chairman, 19 May 1980. 24  CCAMLR-XXV SCIC Report paragraph 2.12: The fishing vessel Taruman, flagged to Cambodia, not a Party to the Convention, was sighted in the high seas in the Convention Area. Upon authorisation by the Flag State, the Taruman was arrested and conducted to port by Australia to be prosecuted.

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In accordance with paragraph five of the Chairman’s Statement, 19 May 1980, the understandings concerning the application of the Convention to waters adjacent to the islands of Kerguelen and Crozet, also apply to waters adjacent to the islands within the area to which the Convention applies over which the existence of State sovereignty is recognized by all Contracting Parties. In the waters adjacent to all other territories found in the Convention area the multilateral regime of the Convention applies. In the Convention Area State sovereignty is recognized by all Contracting Parties to France with respect of the Kerguelen and Crozet Islands, to South Africa with respect of the Prince Edward Islands, to Australia with respect of the Heard and McDonald Islands and to Norway with respect of Bouvet Island. This means that South Africa, Australia and Norway are also entitled to adopt their own national measures under the Chairman’s Statement. In the case of South Georgia and the South Sandwich islands State sovereignty is not recognized by all Contracting Parties. The object of this sovereignty dispute also includes the Malvinas (Falkland) Islands which are not located within the Convention Area. Interpretation of paragraph five of the Chairman’s Statement, 19 May 1980, by Argentina and the United Kingdom is highly controversial.25 Under the Chairman’s Statement,26 France has frequently made reservations to conservation measures adopted by the Commission to exclude their application in the French EEZ around the Kerguelen and Crozet Islands. As to the CCAMLR System of Inspection, its application to those waters was already excluded in the text of the Chairman’s Statement. South Africa has invoked the Chairman’s Statement, although not to the same extent as France. Norway has only declared a territorial sea around Bouvet Island and has never invoked the Chairman’s Statement. Australia has not made any formal reservations under the Chairman’s Statement either to a conservation measure adopted by the Commission or to the CCAMLR System of Inspection. However, at every commission meeting Australia reaffirms its jurisdiction over the Heard Island and the McDonald Islands by means of a formal declaration according to which it recalls that 25  A. Mansi, “Desarrollos recientes en el establecimiento de áreas marinas protegidas en los océanos australes,” Anuario Argentino de Derecho Internacional XXI (Córdoba: Asociación Argentina de Derecho Internacional, 2012), 32–38. See CCAMLR-XV Report on discussions concerning agenda item 13: Interpretation and Application of the Convention and the Statement by the Chairman 1980 in relation with Subareas 48.3 and 48.4, paragraphs 13.1–13.41. 26  See n. 5 above.

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fishing and fisheries research activities in the EEZ around those islands which are included in CCAMLR Statistical Divisions 58.4.3 and 58.4.2 are subject to approval by Australia. Since Australia may at any time apply the Chairman’s Statement, its declaration should not be considered as a reservation under the Chairman’s Statement. Therefore it seems that Australia while agreeing with the application of the multilateral scheme of the Convention, would not object to inspections which could be carried out in that region by other Members of the Commission. Neither Argentina nor the United Kingdom have invoked the Chairman’s Statement. However, the United Kingdom adopts measures unilaterally, mostly concerning administrative matters, such as regulating access to fisheries, enforcing licensing and permit conditions, placing British observers under the CCAMLR System of International Observation on board vessels flagged to other Commission Members and conducting a CCAMLR inspection followed by a compulsive British procedure.27 Argentina, while strongly and systematically objecting to those measures, considers invalid any British unilateral action.28 The application of the multilateral regime of the Convention in Statistical Subareas 48.2, 48.3 and 48.4 could not even be set aside by means of an hypothetical arrangement reached by Argentina and the United Kingdom. Such an agreement would have no legal effect since in those waters all Members enjoy the right to collect Antarctic marine living resources and to conduct marine scientific research. The System of Inspection determines that the Designating Member shall communicate to the Secretariat the names of the designated Inspectors within fourteen days. Within a month of the last day of the Commission meeting, a register of certified designated Inspectors shall be forwarded by the Commission to each Contracting Party. In order to verify compliance with conservation measures adopted under the Convention Inspectors from a vessel of the Designating Member, duly bearing a special identity document issued by said Member in a form approved by the Commission, are entitled within the Convention area to board 27  The so called dual inspections erode both the CCAMLR System of Inspection and the spirit of the Antarctic Treaty System as well, as it was the case of the inspection of the Chilean flagged vessel Antonio Lorenzo by a United Kingdom designated CCAMLR Inspector who upon conclusion of the inspection, identified himself as a British inspector and arrested the vessel because it lacked a British fishing license. 28  CCAMLR-XV Report of the Standing Committee on Observation and Inspection paragraph 1.73 (Chile) and 1.74 (Argentina). The position of the United Kingdom is reflected in paragraph 1.75.

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fishing vessels flying the flag of a CCAMLR Member or of a Contracting Party or a vessel flying the flag of a Member or of a Contracying Party carrying out activities associated with fisheriers to determine whether, if the vessel is or has been engaged in scientific research or harvesting of Antarctic marine living resources or engaged in associated activities in the Convention Area,29 and if these have been conducted in accordance with the standing Conservation Measures. The Designating Member State and the Flag State may make arrangements for scheduling embarkation and disembarkation of Inspectors. While on board the inspected vessel the designated Inspector remains subject solely to the jurisdiction of the Designating Member State and shall enjoy the status of ship’s officer. 29  It is understood that vessels allowed to fish are those flagged to a Member State. At CCAMLR-XVIII discussions took place as to whether a vessel flagged to a State Member of the European Community which is not a Contracting Party to the Convention could be authorised to fish in the Convention area. The European Community had submitted a notification on behalf of Portugal (a non-Contracting Party) for new and exploratory fishieries for Dissostichus spp. in several Subareas and Divisions in the Convention Area (CCAMLR-XVIII Report paragraph 7.5). The European Community and its Members States pointed out that the Member States had transferred to the Community their competences on fisheries and that by virtue of such exclusive Community competence, the Community was entitled and obliged to regulate internal and external fishing activities of its Member States. In addition, they stated that vessels flying the flag of a Member State in all regional fisheries organizations are considered to be Community vessels, whether or not a specific provision to this effect is included in the respective Conventions. It was also stated that all Community Member States, irrespective of whether those Members are Members of CCAMLR or not, are bound by CCAMLR conservation and control measures and that the European Community has responsibilities for the monitoring of activities of its vessels with respect to CCAMLR obligations (CCAMLR XVIII-Report paragraphs 9.42–9.43). The majority of the Commission Members expressed the view that any fishing by a Portuguese-flagged vessel would constitute an infringement to the Convention, unless Portugal had acceeded to it prior to the initiation of its activities. It was also stated that the obligations established by the Convention with respect to the Flag States could not be delegated. Only Flag States can take on these obligations in the legal and political context of the Antarctic Treaty System and all obligations that are not within the scope of fisheries and the environment (CCAMLR-XVIII Report paragraphs 9.47–9.52). While calling upon Portugal to favourably consider early accession to the Convention and while admitting that a lack of consensus could have a negative impact on the whole of the fisheries and the operation of the management and conservation regime, the Commission adopted conservation measures as requested by the European Community, in the understanding however that a precedent should not be set (CCAMLR-XVIII Report paragraphs 9.36 to 9.41). In the fishing season following the CCAMLR-XVIII Meeting Portuguese- flagged vessels were not present in the Convention area.

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The System of Inspection delves further into the topic in paragraphs V to XIV of the System of Inspection by providing details concerning the development of the inspection procedure, prosecution and the application of sanctions by the Flag State. Inspectors shall be knowledgeable about the activities to be inspected, the Convention and the measures adopted by the Commission and shall be able to speak the language of the Flag State. In case that the inspection is carried out by an inspection team, interpretation by at least one of its members would be required so that the inspection may be conducted in a satisfactory manner. Ships carrying Inspectors shall fly a special flag or pennant approved by the Commission to indicate that the Inspectors on board are carrying out inspection duties in accordance with the Inspection System. When the appropriate signal in the International Code of Signals requesting to stop is given to a vessel found in the Convention area which is fishing or conducting scientific research on marine living resources or has the purpose to engage in those activities, the Master of the vessel shall facilitate the Inspector and his assistants to board the vessel. Paragraph V authorises the presence of appropriate assistants who may accompany designated Inspectors to board the vessel to be inspected. It should be pointed out that, unless assistants are themselves also designated Inspectors or Designated assistants, their presence on board the inspected vessel should be restricted to facilitate boarding the vessel by the Inspectors and to facilitate transfer back to the ship once the inspection has finalized.30 Otherwise their presence on board would not be consistent with international law. 30  When boarding a vessel flagged to a Contracting Party to be inspected in the high seas in the Convention Area Inspectors and assistants designated by the Designating Member should refrain from carrying guns or any other kind of weapons unless prior authorisation is given by the Flag State. As it has been stated above (see also 20 and 21) the CCAMLR System of Inspection provides for an exception to the basic principle of international law which establishes Flag State jurisdiction and control in the high seas on vessels flying its flag. Self protection based on domestic legislation could hardly be an argument to be invoked to justify Designated Inspectors and assistants carrying weapons on board during an inspection, in the context of an organization such as the Commission, which is composed by only twenty five Members and in which the number of vessels to fish in the Convention Area is small if compared with the situation existing in most regional fisheries organisations. Therefore the presence of Designated Inspectors and assistants carrying weapons on board an inspected vessel was deemed to be inconsistent with the Convention as well as with the purposes and the principles of the Antarctic Treaty and inconsistent with international law. In such cases the Flag State should be entitled to instruct the Master of the vessel to refuse the inspection. Following an incident that

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Inspectors may inspect catch, nets and other fishing gear as well as harvesting and scientific research activities. They are also entitled to verify i.a. the vessel’s documents, the VMS, the licence or the permit issued by the Flag State and the presence on board of international scientific observers. Inspectors shall also be allowed to access records and reports of catch and location data as needed. They may also take photographs and video footage. The Master and the crew of the inspected vessel shall provide appropriate assistance to the Inspectors and refrain from interfering while inspections are in progress. In turn, Inspectors should take care that inspection activities interfere to a minimum with the inspected vessels’s ongoing activities (System of Inspection, paragraph VI). If the vessel refuses to stop or the Master or the crew are reluctant to comply with reasonable requests made by an Inspector, a special report shall be prepared by the Inspector. The Flag State shall consider reports by designated Inspectors as if they were reports by their own inspectors (paragraph VII). A CCAMLR inspection report form shall be completed by the Inspector. In his report the Inspector shall detail any alleged infringements by the vessel of the conservation measures in force. He shall allow the Master to comment about any aspect of the inspection. The Inspector shall sign the inspection report form which may be also signed by the Master acknowledging receipt of the report and include any comments that the Master might think fit. The Master shall be provided a copy of the report before the Inspector leaves the vessel. Within fifteen days of arrival to port, the Inspector shall provide a copy of the report along with photographs and video footage to the Designating Member. No later than fifteen days from reception, the Designating Member shall forward two copies of the material to the CCAMLR Executive Secretary, who shall forward a copy of the material to the Flag State within seven days. Fifteen days thereafter the CCAMLR Executive Secretary shall transmit the completed inspection form to Members (paragraph VIII). If any observations or comments to the report are received from the Flag State, or any information or report related to paragraph VII are received from the Designating Member, the CCAMLR Executive Secretary shall forward that information to Members within fifteen days following receipt (paragraph IX).

occurred in December 2006 in the southern sector of the South Indian Ocean when a fishing vessel flagged to Uruguay was inspected by Designated Inspectors and assistants carrying weapons on board, consensus on a review of the System of Inspection could not be reached by the Commission at its CCAMLR-XXVI Meeting. See CCAMLR-XXVI Report paragraph 13.80 and SCIC Report paragraph 2.13.

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According to paragraph X A fishing vessel present in the area of application of the Convention shall be presumed to have been engaged in scientific research, or harvesting, of marine living resources (or to have been commencing such operations) if one or more of the following four indicators have been reported by an inspector, and there is no information to the contrary: (a) fishing gear was in use, had recently been in use or was ready to be used, . . .; (b) fish which occur in the Convention Area were being processed or had recently been processed, . . .; (c) fishing gear from the vessel was in the water, . . .; (d) fish (or their products) which occur in the Convention Area were stowed on board. If in line with the inspection report there is evidence of infringement of measures under the Convention, the Flag State shall initiate proceedings in order to prosecute the vessel, shall keep the Secretariat regularly informed about the development of the prosecution and shall, if necessary, impose sanctions. It should be pointed out that unless authorisation to the contrary is given by the Flag State, an exception to the basic principle of Flag State jurisdiction is not admitted. An explanation shall be provided by the Flag State when the prosecution has not started or has proved to be unsuccessful (paragraphs XI and XII). Sanctions to be imposed by the Flag State shall be severe enough to ensure compliance with CCAMLR conservation measures. The Flag State shall also ensure that the vessel be prevented from carrying out fishing operations until the sanctions imposed had been fully complied with (paragraphs XIII and XIV). Overall, the CCAMLR System of Inspection is working well. As of 4 October 2013, 115 inspectors were designated by Members. Thirteen at-sea inspections took place in Subareas 48.3 and 88.1 this year. Some proposals meant to strengthen the System were unable to reach consensus at the Commission because they were not found to be consistent with international law and deviated from the principles and purposes of the Antarctic Treaty. Therefore, proposals such as those envisaged to authorise inspectors and their assistants to carry weapons on board inspected vessels and proposals intended to legislate ratione materiae for areas outside the Convention Area led to lengthy discussions at the Commission and were not adopted. CCAMLR has been presented occasionally as a body having similar objectives to those of regional fisheries management organisations (RFMO). On the contrary, far from being an RFMO, CCAMLR is recognized worlwide as a model

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for the conservation of marine living resources.31 It is enough to read the Performance Review of some RFMOs to conclude that they should not be an example to be followed by CCAMLR.32 Since the objectives of some RFMOs are the optimisation of economic benefits, actions taken in the context of those organizations should not be transferred to the context of the Antarctic Treaty System. CCAMLR objectives go beyond sustainable harvesting of resources, while maintaining a clear understanding of the framework of the Antarctic Treaty System within which CCAMLR operates. An important contribution to the work of the CCAMLR System of Inspection is provided by aerial surveillance missions, which have been carried out firstly by New Zealand and more recently by Argentina. In 2013 fishing vessels were identified in Subarea 48.1, all of them being CCAMLR licensed vessels.33 Port State inspections, which are regulated in Conservation measure 10-03, constitute another significant contribution to the CCAMLR System of Inspection.34 Certainly, port inspections, which are limited to vessels carrying Dissostichus spp. caught inside the Convention Area and landing in their ports, should take into account the constraints imposed by international law. Consistency with intenational law is paramount in a context in which port 31  Quite differently from RFMOs legal regimes, in the context of the Antarctic Treaty System and due to the singularities of CCAMLR, quota allocations would be unacceptable since they would imply an appropriation of the resources by the Commission. Such allocations would undermine the standing not only of CCAMLR but of the whole Antarctic Treaty System vis-à-vis the international community. In 1977, when the ATCM decided to call a diplomatic conference to deal with Antarctic marine living resources, it clearly stated that management should not be based on catch allocations (CCAMLR-XXXI paragraph 7.58). 32  See http://www.iccat.int/Documents/Other/PERFORM_%20REV_TRI_LINGUAL.pdf (accessed 28 May 2014) Report of the 2008 Independent Performance Review of the International Commission on the Conservation of Atlantic Tunas (ICCAT) Executive Summary, p. 2. The Panel made the following general assessment of performance of ICCAT: “The judgement of the international community will be based largely on how ICCAT manages fisheries on bluefin tuna (BFT). ICCAT CPCs’ performance in managing fisheries on bluefin tuna particularly in the eastern Atlantic and Mediterranean Sea is widely regarded as an international disgrace and the international community which has entrusted the management of this iconic species to ICCAT deserve better performance from ICCAT than it has received to date. There are concerns about transparency within ICCAT both in decision making and in resource allocation”. 33  CCAMLR-XXXI SCIC Report paragraphs 48–54. 34  Id., From 1 December 2012 to 31 July 2013, 73 port inspection reports were submitted by seven Contracting Parties; for 2012/13, 93 port inspections reports were submitted by nine Contracting Parties. 119 inspectors were designated for 2012/13.

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state jurisdiction does not stem from customary law but from regional or multilateral agreements. In the framework of the Scheme of Scientific Observation both national and international observers were deployed in the Convention Area on longliners, trawl vessels fishing for icefish and for krill. Scientific observers, though they are not inspectors may highly contribute to the work carried out by inspectors on board. Their activities should not be interfered by inspectors.35 The Scheme of Scientific Observation, together with the System of Inspection and the body of Conservation Measures agreed by the Commission might be viewed as an alternative to the appropriation of the resources in the high seas proposed by the development of regional fisheries management organizations. 35  CCAMLR-XXXII paragraph 7.

Chapter 15

Problems and Controversies Concerning Freedom of Navigation in the Arctic Janusz Symonides Introduction Climate change and the rise of temperature leads to reduction of ice cover in the Arctic. Whereas before 2000, it covered between 8 and 6.3 million km2, in the years 2005–2010 was considerably reduced and embraced only 5.4 to 4.3 million km2. The record result in the first decade of the twenty-first century was noted in 2007, when it amounted 4.3 million km2. Even more ice disappeared in 2012, when it shrank to 3.4 million km2.1 What are the consequences of the ice melting in the Arctic? They are manifold. There are changes in the marine environment. New opportunities are created for the exploitation of oil and gas resources and minerals. Larger areas of water free from ice are opening new opportunities for fishing and giving an access of renewable resources of flora and fauna. At the same time it creates a risk to the biodiversity and the environment. Climate changes in the Arctic also create new opportunities for the development of international shipping in the region. The free of ice shipping routes through the Arctic raises the prospect of a serious shortening of passages between Europe and Asia and North America. This allows significant fuel savings and reduction of greenhouse gas emissions into the atmosphere. Thin, a one-year ice cover opens more opportunities for navigation for ships without the help of the icebreakers. There are increased prospects for development of tourism. In a situation where the world and at least some of its regions suffer from a limited access to potable water the Arctic can help solve this problem being a huge reservoir of it. Computer simulations show that transportation of icebergs to Africa and Europe and freightage of drinking water by tankers to the regions where there is a deficit is already feasible and cost-effective. All Arctic States are involved in coastal shipping in areas around Greenland, off the coast of North America and in the Barents Sea. Shipping, however, 1  Arctic Snow and Ice Data Center, Arctic Sea Ice News & Analysis, 2010, 2011, 2012; S. Foucart, La banquise arctique a fondu comme jamais cet été, Le Monde, 20 septembre 2012.

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carries with it a range of threats. It entails dangers of environmental pollution. It raises the level of noise, disrupts natural migration routes of marine mammals and also endangers the traditional style and way of life of indigenous peoples. There is no doubt that these threats must be sincerely taken into account and justify actions to prevent or at least reduce them. Three shipping routes allow trans-arctic shipping and the connection between the Atlantic and Pacific: the Northwest Passage through the Canadian Archipelago, the North-East Passage along the coast of Siberia, called the Northern Sea Route and the trans-polar passage through the North Pole. These connections allow and substantially shorten the path between Europe and the west coast of the United States and Canada, and between Europe and Asia in comparison with traditional maritime routes through the Panama Canal or the Suez Canal.2 A comparison of conditions posed by these three shipping routes allows to put forward a thesis that the most convenient for international navigation, in particular, for the transit between Europe and Asia is the Northern Sea Route.3 Whereas the Northwest Passage is sporadically used for navigation only during the summer and mostly in the northern sectors mainly by the Canadian and U.S. Coast Guard vessels, the Northern Sea Route is already being used throughout the year by the Russian ships. Russia has the largest fleet of icebreakers,4 and since 1991 has opened this passage for international navigation. There is also a meteorological and hydrological service and the navigation is easier in comparison with the maze of the Canadian islands much worse mapped. The Arctic countries have repeatedly stressed that the questions of international law concerning the region should be dealt in accordance with the

2  Length of shipping from Shanghai to Rotterdam is 25.588 km through the Panama Canal, through the Suez Canal 19.530 km, 16.100 km through the Northwest Passage, 15.793 km through the Northern Sea Route and only 13.630 km through the North Pole. 3   W. Østreng, K. Eger, B. Fløistad, A. Jørgensen-Dahl, L. Lothe, M. Mejlæder-Larsen, T. Wergeland, Shipping In Arctic Waters. A Comparison of the Northeast, Northwest and Trans Polar Passages (Berlin/Heidelberg: Springer/Praxis, 2013). 4  The acting Russian fleet includes four atomic icebreakers with two nuclear reactors 75 thousand horse power strong—‘Rossiya’, ‘Sovetsky Soyuz’, ‘Yamal’, ‘50 Let Pobedy’, two atomic icebreakers with a single reactor power plant 40 thousand horse power strong—‘Taymir’ and ‘Vaygach’ and atomic lighter ‘Sevmorput’. Atomic icebreakers fleet has been providing regular shipping of Russian and foreign cargoes along the Northern Sea Route since 1959. A new atomic icebreaker is expected to commence its operation in 2018. Northern Sea Route Office, Icebreakers Assistance, http://www.arctic-lio.com/nsr_icebreakersassistance, 2014-02-20.

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provisions of the Convention on the Law of the Sea 1982 (UNCLOS).5 They are all parties to the Convention with the exception of the United States. The Convention regulates shipping and defines the mutual rights and duties of the coastal State and the international community depending on to the sea area in which this is conducted. From this point of view, attention should be paid to: internal waters, territorial sea, straits used for international navigation, the exclusive economic zone and the high sea.6 The interpretation of the provisions concerning navigation in UNCLOS became the subject of dispute and controversy resulting first of all from different meaning and understanding given to Article 234.

Controversies Concerning the Application of Article 234 of the Convention on the Law of the Sea

The only article of UNCLOS, which takes into account the particular situation and the sensitivity of the Arctic marine environment is Article 234, called ‘the Arctic’ or ‘the Canadian exclusion’. It was negotiated by Canada, the Soviet Union and the United States and approved by the governments of these countries before placing it on the agenda of the Conference. Although the proposed provision was met with a reservation of several marine countries, nevertheless, 5  For example: The Ilulissat Declaration, Arctic Ocean Conference, Ilulissat, Greenland, 27–29 May, 2008. 6  In the case of internal waters a coastal State has a full right to regulate navigation. Somewhat different is the situation on the territorial sea where, in accordance with Chapter 3 of UNCLOS, ships of all States enjoy the right of innocent passage. The passage cannot be prejudicial to the peace, good order or security of the coastal State. The possibility of issuing laws and regulations relating to innocent passage is also regulated in detail. UNCLOS also contains provisions on how to determine the baseline which is the inner boundary of the territorial sea. The Convention also contains provisions on straits used for international navigation, in which the ships enjoy the right of transit passage. Ships in transit are required to proceed without delay through the strait, refrain from any threat or use of force and from any other activities not related to the passage and must conform to generally accepted international rules on maritime safety and the prevention of pollution. States bordering straits should not place obstacles to the transit passages. Laws and regulations issued by the State bordering straits should not deprive, interfere or impede the right of the transit passage. In the exclusive economic zone the freedom of navigation applies in the same way as on the high seas. This is clearly confirmed by Article 58 of UNCLOS providing that to the exclusive economic zone apply articles from 80 to 115 (regulating the status of the high seas) as long as they are not inconsistent with the Part V of the Convention.

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the support of the two superpowers during the Cold War period was sufficient for its final approval. This article created the legal basis for unilateral actions which have been taken earlier by Canada in 1970, when the parliament recognized the Canadian jurisdiction to regulate navigation in the zone extending up to 100 miles from its coasts to prevent marine pollution from ships. The adopted Arctic Waters Pollution Act prohibits the discharge of oil and disposal of waste from ships in this area. Extending the jurisdiction of the 100-nautical-mile zone before accepting the UNCLOS concept of the exclusive economic zone was controversial at that time.7 Article 234 provides: Coastal States have the right to adopt and enforce non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within the limits of the exclusive economic zone, where particularly severe climatic conditions and the presence of ice covering such areas for most of the year create obstructions or exceptional hazards to navigation, and pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance. Such laws and regulations shall have due regard to navigation and the protection and preservation of the marine environment based on the best available scientific evidence. A detailed analysis of the wording of Article 234 allows to identify a number of doubts and ambiguities concerning the scope and rights which it gives to the coastal States. There is a question how to define areas where the presence of ice creates obstructions to navigation. Another unclear issue is a degree of coverage or the occurrence of ice. It refers to the ice-covered areas ‘for most of the year’. Can a regulation by coastal States be justified only when there is more than six months occurrence of compact ice cover or whether a sporadic and periodic appearance of ice throughout the year is sufficient? Does the adoption of a special legislation for the whole exclusive economic zone is justified when ice covers only a part of it? One can observe that not all Arctic countries satisfy the requirements necessary for the adoption of special legislation and 7  B.K. Carnahan, “The Canadian Arctic Water Pollution Act: An Analysis”, Louisiana Law Review, vol. 31, no 4 (June 1971): 631. The adopted Act met with protests, especially from the United States, which have recognized it as an attempt to submit claims to the maritime areas. “U.S. Opposes Unilateral Extension by Canada of High Seas Jurisdiction”, 62 Departament of State Bulletin (1970): 610–611.

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regulations of the presence for most of the year of the ice cover. It applies to Iceland, Sweden and Finland.8 Even in a case of Norway a question concerning the occurrence of the continuous ice cover most of the year and the existence exceptional danger to shipping on the part of the Barents Sea can be debated. What does a phrase “creating obstructions or exceptional hazards to navigation” mean? Does it justify the special regulations concerning icebreakers and ships of high polar class which are not really endangered by the occurrence of ice, particularly thin one year ice? Can a special legislation apply to warships? Further doubts concern the issue whether the adopted regulations may relate only to the limiting or excluding the possibility of pollution from ships or can they impose requirements concerning safety of ships, their construction, equipment and crewing.9 There is no clarification if the provisions of Article 234 give larger range of rights to a coastal State in the exclusive economic zone than it has in the territorial sea in case of innocent passage. It stresses also that laws and regulations of a coastal State should be based on the best available scientific evidence and have due regard to navigation. How these reservations should be understood in practice? What institutions are entitled to make such evaluation—national or international? What are the implications of having due to regard to navigation? The possibility of a unilateral adoption of laws and regulations on navigation in the exclusive economic zone without an explicit requirement of their acceptance by the International Maritime Organization leads towards undermining of uniformity of requirements and standards concerning international navigation. In June 2010, Canada launched the obligatory system NORDREG (The Northern Canada Vessel Traffic Services Zone Regulations) implementing the requirements for vessels to give a serious of mandatory information concerning navigation. Notification, including a daily sailing plan and a position report of a vessel, is obligatory for vessels of 300 gross tonnage or more sailing through the Canadian waters. If the foreign vessel is in the area without an earlier registration, it would be detained in the first port. Fines can be up to $100,000. per person or vessel and/or imprisonment for up to one year.10  8  Iceland in its bill of 2004 on prevention of the marine and coastal pollution doesn’t refer to the special entitlements resulting from Article 234 of UNCLOS and this bill is consistent with the MARPOL provisions. Norway has not a specific legislation which provides the implementation of Article 234. 9  European Commission, Legal aspects of Arctic shipping, Summary Report (European Union: Publication Office of the European Union, 2010), 13. 10  M. Bennett, “New Canadian Arctic Shipping rules may contravene international law”, http://arctic.foreignpolicy.blogs.com/2010/07/09/new-canadian-arctic-shipping-rules.

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A number of countries, inter alia, the United States, Germany, Singapore and also the European Union immediately contested the mandatory nature of NORDREG, by diplomatic notes as well as during the sessions of the Maritime Safety Committee of IMO. Evaluating positively the Canadian policy aiming at the protection of the Arctic marine environment same time they firmly criticized unilateral steps taken by Canada.11 In its response Canada stressed that the mandatory registration of vessel in the NORDREG system would enhance safety of ships, crews, passengers in the Arctic waters seeing that search and rescue would be much easier with knowledge of a position of registered vessels.12 The opposition to the mandatory reports is formulated not only by countries but also by shipping companies. The Baltic and International Maritime Council (BIMCO) representing 2/3 ship-owners sent a letter to the Canadian authorities declaring an opposition to these regulations and recognizing them as a violation of freedom of navigation. BIMCO stated that before the entry into force of these regulations, Canada should obtain an approval from IMO. Canada is the only Arctic State which imposed the mandatory system of information of an entry, a daily sailing plan report, deviation and position on the Arctic waters without the IMO approval. The legislation of Canada can be considered as the exercise of sovereign rights concerning shipping in the exclusive economic zone, which raises serious doubts as to compliance with the provisions of UNCLOS. In this context one can notice that on its 91st session in November 2012 the Maritime Safety Committee of IMO adopted a new mandatory Ship Reporting System in the Barents area proposed by Norway and Russia. This system entered into force on the 1st June, 2013. It requires the participation of all ships with a gross tonnage of 5,000 and above, all tankers, all ships carrying hazardous cargoes and any ship restricted in their ability to manoeuvre.

Towards the Adoption of the Mandatory Polar Code

Ships operating in the Arctic waters are exposed to particular and exceptional dangers. The weather conditions, fogs and storms, a lack of maps, serious 11  A. Raspotnik, “Positive Unilateralism—An Effective Strategy to Protect the Canadian Arctic Environment or a Subtle Approach to Establish Sovereignty?”, The Arctic Institute, Center for Circumpolar Security Studies, Friday, December 23 (2011), www.thearctic circumpolarinstitute.org/2011/12/92743–positive-unilateralism-effective.htm. 12  “Vessel Traffic Reporting Arctic Canada Traffic Zone” (NORDREG), Canadian Coast Guard, www.ccg-gcc.gc.ca.

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limitation to radio and satellite communication and a lack of infrastructure in Arctic put the vessel’s crew in front of the extreme challenges. Low temperatures cause frost of on-board equipment, expose it to the frequent breakdowns and limit its operating efficiency. Although there is a lot of binding norms in the law of the sea aiming at the ensuring the safety of ships, crew and passengers, as well as, a considerable number of codes, guidelines and recommendations but they are not adopted specifically for shipping in the Arctic. Certainly, respecting these general norms and standards has a positive impact on increasing safety of shipping in this region.13 So far the only document which applies directly to the Arctic is the nonbinding the IMO Guidelines for Ships Operating in Arctic Ice-Covered Waters.14 The Guidelines were adopted by two IMO organs: the Maritime Safety Committee and The Marine Environment Protection Committee in October and December 2002. The both Committees adopted the Guidelines acknowledging that the polar environment imposes additional demands on ship operating in the Arctic waters beyond the IMO existing requirements. The Guidelines applies to ships which are subjects to the SOLAS Convention including passengers’ ships and vessels of 500 gross tonnage or more. The Iceland waters are not covered by the provisions of the Guidelines. Their Preamble (P – 1.2) explains that the Guidelines are intended to address those additional provisions deemed necessary for consideration beyond existing requirements of the SOLAS Convention, in order to take into account the climatic conditions of Arctic ice-covered waters. They are not binding and they should be interpreted as recommendations. Their aim is to promote the safety of navigation and to prevent pollution from ships in Arctic. The Guidelines are divided into four parts raising the following questions: a) construction of ships; b) equipment; c) operation and d) environment protection and damage control.15 It is worth to note a suggestion to harmonize polar class ships. The Guidelines refer to the proposed by the International Association of Classification Societies Unified Requirements for Polar Ships. The adopted and suggested description 13  First of all one can mention the International Convention for the Safety of Life at Sea, (SOLAS, 1974), with two Protocols (1978 and 1988), the Convention on the Inter­ national Regulations for Preventing Collisions at Sea (COLREGS, 1972), the International Convention on Maritime Search and Rescue (SAR, 1979) and the International Convention on Load Lines (1966). It is worth to note that all of the Arctic countries are bound by their provisions. 14  International Maritime Organization, “Guidelines for Ship Operating in Arctic Icecovered Waters”, MSC/Cire.1056, MEPC/Cire.399 (December 2002): 23. 15  An exhaustive description of the Guidelines gives, Ø. Jensen, “The Imo Guidelines For Ships Operating”, in Arctic Ice-Covered Waters, From Voluntary To Moderatory Tool For Navigation Safety And Environmental Protection?, FNI Report 2/2007. Lysaker, FNI, 2007.

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divides ships into seven classes—from PC 1 to PC 7, depending on shipping in different ice conditions.16 The Guidelines adopted by IMO were criticized because of the existing deficiencies and ambiguities.17 A lack of details concerning the preparation, the necessary experience and practice of the polar pilots as well as the utilization of the sprays and chemicals used for the ice eradication of a ship equipment were pointed out. There was noted that the Guidelines should apply not only to the Arctic but due to the similarity of shipping they should also include the Antarctic. According to the request formulated by the Antarctic Treaty Consultative Meeting (ATCM) in 2004 and addressed to IMO, to prepare guidelines for ships operating in the Arctic and the Antarctic,18 IMO started work on such a document in 2008. In December 2009, IMO adopted the Guidelines for Ships Operating in Polar Areas covering the Arctic waters as well as the Antarctic19 They entered into force on the 1st January, 2011. The Guidelines of 2009 apply in effect the recommendations of 2002 for the Arctic, to the Antarctic. The Preamble explains that whilst the Arctic and the Antarctic waters have a number of similarities, there are also significant differences. “The Arctic is an ocean 16  The first five Polar Classes ships should have an ability of a year-round operation in all Arctic waters but in different ice conditions. The first Polar Class ship (PC 1) has a possibility of a year-round operation in all Arctic iced-covered waters. The succeeding Polar Classes ships should have an ability of a year-round operation in moderate multi-year ice conditions (PC 2), a year-round operation in second-year ice which may include multiyear ice inclusions (PC 3), a year-round operation in thick first-year ice which may include old ice inclusions (PC 4), a year-round operation in medium first-year ice which may include old ice inclusions (PC 5). The last two classes should have an ability of a summer/ autumn operation in medium first-year ice which may include old ice inclusions (PC 6) and a summer/autumn operation in thin first-year ice with which may include old ice inclusions (PC 7). All Polar Class ships should have structural arrangements to resist damages as coating breakdown provoked by the ice. The materials presenting the danger of pollution cannot be load in these parts of ships which are exposed to the risk of damage. All ships should be equipped with equipment and installations minimizing the danger of pollution of the Arctic waters. The navigation, communication and rescue equipment should take into account the Arctic conditions. It is worth to note an idea of taking the polar pilots on the board. 17  Arctic Council, Arctic Marine Shipping Assessment Governance of Arctic Shipping (2009), AMSA Executive Summary and Recommendations, 57. 18  ATCM Decision 4, “Guidelines for Ships Operating in Arctic and Antarctic Ice-covered Waters” (2004). 19  A 26/Res.1024, Adopted on 2 December 2009, Agenda Item 10, 18 January 2010.

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surrounded by continents, while the Antarctic is a continent surrounded by an ocean”. Whereas there is a significant amount of multi-year ice in the Arctic, in the Antarctic multi-year ice which is dispersed by permanent gyres in its two major seas: the Weddell and the Ross. During the drafting the Guidelines for Ships Operating in Polar Areas the marine States together with those participating in the meetings of the Antarctic Treaty Consultative Committee20 gave the strong support to the idea of an elaboration and adoption of mandatory guidelines—a legally binding instrument which would replace the recommendatory Guidelines of 2009. In February 2010, IMO started the elaboration of the Polar Code project embracing the both, the Arctic and the Antarctic. It was expected that the drafting would last three years. Now, 2014 is mentioned as a date for the conclusion of the preparation of the draft. An organ conducting the works is the IMO Sub-committee of Ship Design and Equipment and the Correspondence Group.21 The Code will address: ships design; their construction and equipment; problems linked with the operational aspects and preparation of crew, search and rescue as well as the questions of the protection of the unique marine environment and the ecosystems of polar regions. The Sub-committee presents its works to the other sub-committees and committees of IMO, especially to the Marine Environment Protection Committee and the Maritime Safety Committee which are will adopt in a special resolution the project of Code which will be incorporated to relevant parts of the IMO conventions.22

A Legal Status of the Northern Sea Route

The idea of searching for a sea route to establish a direct maritime connection between Russia and China is linked with the name of the Russian diplomat R. Gerasimov who for the first time drew attention to this possibility in the

20  Resolution 8 (2009), ATCM XXXII–CEP XII, Baltimore. Antarctic Shipping Code. Adopted 17/04/2009. 21  DE 55(12)1. “Development of a Mandatory Code for Ships Operating in Polar Waters”, Report of the Correspondence Group, 17 December 2010. 22   The subsequent reports: Sub-Committee on Ship Design and Equipment (DE) 53rd session, 22–26 February 2010; 54th session, 25–29 October 2010; 56th session, 13–17 February 2012, 57th session, 18–22 March 2013.

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16th century.23 The first complete passage of this route from west to east took place in 19th century. The Russian Revolution of 1917 created new possibilities or rather the necessity of using the Northern Sea Route. Blockade and isolation of the Soviet Russia by western powers made it imperative to use this route. Besides being the shortest communication line between the western and far eastern regions of the country, it was the only seaway completely under the Soviet jurisdiction.24 The name of the Northern Sea Route replaced the old one—the North East Passage. In 1933 the Northern Sea Route was officially opened and commercial exploitation began in 1935. Adopted in 1990 the rules of navigation on the seaways of the Northern Sea Route25 entered into force on the 1st July, 1991. In 1995, Russia adopted a guide for the shipping in the Northern Sea Route as well as the rules concerning construction and equipment of ships using this sea line. In their first part, the rules explain that the Northern Sea Route is the national transportation route, which is situated within the internal waters, territorial sea and exclusive economic zone. It is also recognized as the national route in the in the law of the Russian Federation of 1998, concerning the inland waters, territorial sea and exclusive economic zone as well as in the law on the exclusive economic zone. The rules state that the Northern Sea Route is open to navigation on a non-discriminatory basis for the vessels from all countries. They aim at the ensuring a safe navigation and preventing, reducing and keeping under control the marine environment pollution from vessels necessary since severe climatic conditions that exist in the Arctic regions and the presence of ice during the larger part of the year create obstacles and increased danger for navigation. The owner or the master of а vessel intending to navigate through the Northern Sea Route submits to the Administration а notification and а request for guiding through the Northern Sea Route in compliance with form and deadlines not earlier than 120 calendar days and not later than 15 working days before the estimated date of arrival of a vessel in the Northern Sea Route water 23  Northern Sea Route, Wikipedia, http://en.wikipedia.org/wiki/Northern_Sea_Route; Northern Sea Route, VisWiki, http://www.viswiki.com/en/Northern_Sea_Route. 24  The Bolsheviks from the beginning recognized the necessity of the development of the Northern Sea Route. In 1921 a decision was taken about creating the Institute of Research in order to conduct studies on the seas rivers and islands of the Arctic coast of the Soviet Russia. 25  These Regulations were worked out in accordance with the USSR Council of Ministers Decision No. 565 of 1 June 1990 and adopted 14 September 1990. The text was published and it is available in the Internet, “Rules of Navigation. Regulations for Navigation on the Sea Ways of the Northern Sea Route”. Approved by the USSR Minister of Merchant Marine, 14 September 1990.

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area.26 The Administration considers the application within 10 working days since its reception for consideration. It can also require an inspection of a vessel as a condition of acceptance of a passage. An inspection can take a place in Murmansk, Nakhodka and Provideniya, or in a another port adequate to an ownership. Тhe guiding of vessels through the Northern Sea Route shall be performed during the navigational period, the beginning and the end of which shall be determined by the Administration. The vessels due to the different conditions can use one of the following types of guiding: 1) guiding from shore along recommended routes up to а certain geographic point; 2) airplane, or helicopter guiding; 3) conventional pilotage; 4) icebreaker guiding and 5) icebreaker guiding combined with conventional pilotage of vessels. The vessels can operate separately as well as in convoys. As stated by the regulations the mandatory icebreaker guiding of vessels was established in the Vilkitsky Strait, the Shokalskiy Straits, the Dmitry Laptev Strait and the Sannikov Strait due to unfavorable navigational situation and ice conditions and for the ensuring safe navigation. In other regions, the Administration decides what kind of assistance can be chosen. In a case of unfavorable ice, navigation, hydrographic and causing а threat to the ecological situation conditions, a representative of the Administration mау carry out an inspection of а vessel while she navigates the Northern Sea Route. It can suspend navigation of vessels on specific parts of the Northern Sea Route for the period during which exist the circumstances that have caused such а measure. If а vessel violates provisions of the regulation she can be removed from the route. The master of a vessel navigating the Northern Sea Route is obliged to inform the authorities about all kinds of pollution, affected by or detected by her. The Russian rules of the 1990s did not mention the question of warships and the State ships enjoying the immunities as well as the problem of using the Northern Sea Route for the purpose of tourism. The requirements concerning the pollution from ships are more demanding than those provided in the Convention for the Prevention of the Pollution of Ships (MARPOL). The doubts are raised by the compulsory charges for the icebreakers support regardless of their use. Additionally, the amount of charges is also discussed. There no doubts that their reduction will have a positive impact on increasing the competitiveness and attractiveness of this route.27 26  Northern Sea Route Information Office, “How to Get Permit”, http://www.arctic-lio.com/ nsr_howtogetpermit, 2014-02-20. 27  “Northern Sea Route should not be expensive”, Barents Observer (2010), Barents_Observer. com, http://www.barentsobserver.custopublish.com/northern-sea-route-should-notbe-exp . . .

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The adopted at the beginning of the 1990s the rules of navigation in the Northern Sea Route required a necessary amendment and elimination of existing gaps. Undertaken by Duma at the end of 20th century the elaboration of a new law concerning the legal status of this route lasted a very long time28 and ended by the adoption of the federal law No 132 in June and signed by V. Putin on 28 July, 2012.29 The law introduced the amendments to the earlier rules regulating the navigation in this route keeping the most of the existing solutions and only in few questions changed previous norms, better adapting them to increasing maritime traffic on this route. The new law confirms that the Northern Sea Route is historically emerged national transportation route of the Russian Federation open to the ships of all flags without any discrimination. It covers the water area adjacent to the Northern coast of the Russia, comprising the internal waters, the territorial sea, the contiguous zone and the exclusive economic zone. It extends from the Bering Strait and the outermost eastern edge of the coast to the archipelago of Novaya Zemlya in the west. The Barents Sea with Murmansk is excluded from its area. An important novelty is the creation of a uniform, one Administration with headquarter in Moscow and elimination of the two Marine Operation Headquarters. The Administration started its activity at the beginning of the shipping season in 2013.30 There are strict regulations concerning the liability for environmental damages caused by the vessel during a passage under the responsibility of the ownership. Without the appropriate documentation confirming the possession of the adequate insurance and financial security, a vessel will not obtain a permission to navigate. A very important change is a clear indication that a 28  The project presented in 1999 by a working group chaired by the academics A.G. Granberg and A.N. Czilingarow provided obtaining the authorization for the passage of warships as well as for the nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances. A.L. Kolodkin, V.N. Gutsuliak, V. Bobrowa, The World Ocean: International Legal Regime, trans. W.E. Buttler (The Hague: International Publishing Eleven, 2010). The prolongation of the works indicated the existing internal divergence on the issue of the restriction of freedom of navigation of warships and the ships of special characteristics (tankers, nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances). 29  “Vladimir Putin sign law on the Northern Sea Route”, arctic info, 30 July 2012, http://www .arctic.info.com/News/Page/vladimirputin-signs-law-on-the-northern-sea-route. 30  Recent Russian legislation is analyzed by J. Symonides, M. Symonides, “Les perspectives d’utilization de la route maritime du nord pour la navigacion internationale : enjeux et problèmes”, Revista Europea de Derecho de la Navegación Marítima y Aeronáutica, no 30 (diciembre 2013): 1–23.

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payment for the icebreakers support, ice pilotage and the vessel handling is based on the amount of services actually delivered. It is the fulfillment of the previously formulated demands. The Russian legislation concerning the Northern Sea Route does not still regulate the issue of a passage of warships and the ships with special characteristics (tankers, nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances). The approved by the President Putin on 20 February, 2013, strategy of the development of the region also refers to the Northern Sea Route.31 It clearly confirms the necessity of further improvement of the legal basis concerning its management especially a payment for a service as well as the compulsory insurance system.

The Controversy over the Legal Status of the Northwest Passage

The Northwest Passage includes several seaways passing through the Canadian Arctic Archipelago. It connects the Atlantic and Pacific Oceans allowing the shortening of the route compared to a passage through the Panama Canal or a circumnavigation of the Cape Horn. The first passage noted in the literature took place in 1905 and it was Roald Amundsen,32 the Norwegian explorer, who sailed through the Northwest Passage in three years journey. Whereas the first transit passage during a single season and in the both directions took place in the 40s of the 20th century. It was achieved by the Canadian ship RCMPV St. Roch. The legal status of the Northwest Passage became a subject of the dispute between Canada and the United States in the late seventies and eighties. In the current phase of the dispute the United States considers this route to be an international straits which legal regime is under the UNCLOS provisions on the transit passage in the international straits, while Canada stresses that the passage constitutes its internal waters under its full national sovereignty, and the using of this seaway depends on its acceptance. The United States do not challenge the sovereignty of Canada over the islands. This dispute concerns the question if the right of transit passage exists on these waters and whether it can be exercised without the Canadian permission. In 1969, the U.S. specially reinforced tanker SS Manhattan, made the passage to test the viability of the

31  Text in the Russian language: http://prawitielstwo/ff/docs/22846. 32  http://www.fromheim.com/Amundsen/NWP/NWpassage.html.

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passage for the transport of oil. A few years later in 1985, the same was made by the U.S. Coast Guard icebreaker Polar Sea.33 In 1985 Canada applied a system of straight lines for determining the baseline of the territorial sea, in such a way that the archipelago was placed on its inner side, and thus allowing the recognition of these waters as internal.34 The U.S. protest concerning this decision was supported by the European Commission of the European Union which recognized that Canadian position relating the system of straight lines was incompatible with the international law. The Commission paid particular attention to ‘unusual’ lengths of several of these lines exceeding limits allowed by UNCLOS with regard to the delimitation of archipelagos.35 Despite of the existing dispute, the United States and Canada signed in 1988, an agreement on the Arctic cooperation. It provides that all navigation by the U.S. icebreakers within waters claimed by Canada to be internal will be undertaken with the Canadian consent. Nevertheless, the both Parties declared that nothing in this agreement nor any practice there under affects the respective positions of the United States and of Canada on the law of the sea in this or other maritime areas or their respective positions regarding third parties.36 In other words, the States confirmed their positions and agreed to continue their dispute which boils down to the question whether the Northwest Passage can be recognized as the strait used for international navigation. The Convention explains in Article 37 that a conception of the transit passage applies to “. . . the straits which are used for international navigation between one part of the high seas or an exclusive economic zone and

33  More on this issue: G. Killaby, “Great Game In a Cold Climate: Canada’s Arctic Sovereignty in Question”, text: http://www.journal.forces.ge.ca/vo6/no4/north-nord-01-eng.asp. 34  As Article 8 of UNCLOS states: “. . . waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State”. 35  In its Article 47 para. 2 the Convention provides: “The length of such baselines shall not exceed 100 nautical miles, except that up to 3 per cent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles”. The thesis of the applicability by Canada of the system of straight lines to determine the baseline and the limit of the internal waters and territorial sea has been also questioned by reference to article 5 of UNCLOS which states: “. . . the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast . . .”. 36  Text: “Canada Treaty Information, Agreement between the Government of Canada and the Government of the United States of America on Arctic cooperation”, E 101701 – CTS 19888, No. 29, treaty-accord.gc.ca.

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another part of the high seas or an exclusive economic zone”.37 This condition to connect a part of the high seas or/and an exclusive economic zone is fulfilled. However, it is not clear whether this geographic criterion is sufficient for the recognition of straits as international, or should be supplemented by a functional one—long-lasting use for international shipping. UNCLOS does not explain this question. In that situation, Canada states that this functional criterion is not satisfied.38 The occasional use of this sea route and the passages of the U.S. vessels cannot be recognized as a prove of a long-term practice. However, this condition for obvious reasons could not be fulfilled by a strait which had been frozen. Now in time of the climatic change the possibilities of its present and potential use exist. It shouldn’t be forgotten that the Northwest Passage has been used for the military navigation by the American nuclearpowered submarines. In 1957, the USS Nautilius was the first vessel to complete a submerged transit through this passage and there are indications that the similar transit took place in 2005.39 There is also another aspect to be considered. If the islands are treated as a whole, unified archipelago, the question is, whether in such a case the UNCLOS provisions concerning the right of archipelagic sea lanes passage should not be applied. The Convention defines the right of archipelago passage as: “. . . the rights of navigation and overflight in the normal mode solely for the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone”.40 In the debate on the legal status of the Northwest Passage, one can also remember that Article 8 of the Convention is applicable to the debate concerning the status of the Canadian internal waters. In the point 2 it states: “Where the establishment of a straight baseline (. . .) has the effect of 37  Excellent presentation of the concept of the transit passage is given by H. Caminos, V. Cogliaty-Bantz, The Legal Regime of Straits. Contemporary Challeges and Solutions (Cambridge: Cambridge University Press, 2014). 38  Canada refers to the ICJ judgment concerning the Corfu Strait where the Court indicated two elements necessary to recognize a strait to be international—geographical and functional situation. It is worth to note that the judicial decisions of the ICJ does not establish the rules of law. In the meaning of Article 38 of the Statute of the International Court of Justice judicial decisions are only the subsidiary means for the determination of rules of law. 39  N. Loukacheva, “Legal Challenges in the Arctic”, a position paper presented for the 4th NRF Open Meeting in Oulu, Finland and Lulea, Sweden, October 5–8 (2006), 4. 40  Article 53 of UNCLOS.

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enclosing as internal waters areas which had not previously been considered as such, a right of innocent passage as provided in this Convention shall exist in those waters”.41

Concluding Remarks

The question of the respect of UNCLOS in the Arctic is the subject of the international legal disputes. Controversies concern not only of the legal status of the Northwest Passage and the Northern Sea Route but also the methods of drawing the baselines, the regime of passage through straits as well as the interpretation of Article 234 and the limitation of freedom of navigation in the exclusive economic zone. Not all Arctic States adopt a legislation which can be qualified as not being in line with freedom of navigation. The reservations in the specialized literature are mainly addressed to Canada and to a lesser degree to Russia. A staunch defender of the principle of freedom of navigation in the Arctic is the United States. The practice and the position of other Arctic States: Denmark, Finland, Iceland, Norway and Sweden, is in accordance with the provisions of UNCLOS, MARPOL and SOLAS. Studies and simulations conducted by the University of California42 allow to formulate a thesis that between 2040 and 2059 not only the two northern sea routes but the whole area of the Arctic Ocean might be completely free of ice during the summer which means the disappearance of the multi-year ice thus allowing a relatively free use of the routes leading through the North Pole, even by vessels without special ice reinforcement. The situation will be similar to this which currently exists in the Baltic Sea. The possibilities of using the sea route via the North Pole even in a nowadays is proved by the passage of the Chinese icebreaker Xuelong in 2012 and in both directions.43 41  The system of straight lines was applied by Canada only in the mid-eighties of 20th century. Until then the Northwest Passage was not considered to be the internal waters. Among the arguments which are supposed to convinced the international opinion about the validity of application to the Northwest Passage a concept of the internal waters, there is a thesis that the Canadian control over the passage protects the international community from the possibility of a terrorist attack and the international organized crimes. 42  N. Vanderklippe, “Study Predicts Arctic Shipping Quickly Becoming Reality”, Globe and Mail (March 2013). 43  T. Petersen, “Chinese icebreaker concludes Arctic Voyage”, Barents Observer (September 2012).

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Problems and disputes concerning navigation in the Arctic result largely from differences in the interpretation of Article 234 of UNCLOS. There is no doubt that this Article is one of the least precise and the most unclear provision which one can find in UNCLOS. The paradox is that it was adopted with the support of the United States which probably were not fully aware of the consequences of acceptance of the Canadian initiative. Anyway, at the turn of the seventies and eighties, during the Third Conference on the Law of the Sea a perspective of the international shipping in the Arctic did not seem real and was not taken seriously into account. An important step to unify the positions of the all Arctic States and the entire international community on the issues of navigation in the Arctic would be an adoption of the mandatory Polar Code. From the point of view of safety of navigation in the Arctic a significant progress was achieved with the adoption in 2011, the agreement on search and rescue in the region.44 Russia according to this agreement provides the establishment of ten rescue centers along the coast of Siberia till 2015.45 What are the prospects for development of navigation in the Arctic? Can justified concerns linked with possible damage which navigation may cause to the vulnerable Arctic environment stop its development? It does not seem probable. The sea routes passing through the Arctic are extremely important for the connection between Europe and Asia. The general comparison of pros and cons arguments speaks in favor of its development. The positive effects of the significant shortening of the distance between Europe and Asia, the shorten time of sailing compared to the shipping through the Suez Canal or Panama Canal, the fuel savings, and thus the lower greenhouse gas emissions brings obvious economic advantages. A danger of the marine accidents and pollution though significant, still is lower than the dangers caused by the extracting of oil. Threats exist primarily from the catastrophes and the carriage of oil. They are relatively lower during the carriage of bulk cargo and containers. The ships better equipped and protected are already constructed and used. An increasing number of new ports 44  Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic, signed on May 12, 2011 by the eight Arctic States. The agreement entered into force on January 19, 2013. A depositary of the agreement is Canada. It is the first agreement prepared and adopted by the States of the Arctic Council. It establishes the areas of responsibility for search and rescue of the all signatories and establishes the rules of the international cooperation. 45  T. Pettersen, “Russia to have ten Arctic rescue centers by 2015”, Barents Observer (November 2011).

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and ports facilities make navigation easier. Masters, polar pilots and crew are getting more experience and practice in the Arctic shipping. Is the international shipping a threat to the traditional way of life of indigenous peoples of the Arctic? Are they strongly opposed to it? The answer to this question is not so clear. The interests of the various peoples differ. For the Canadian Inuit the shipping no doubt can be considered as a significant threat but for indigenous peoples in Russia it creates a chance for a better life linked with an employment in ports and their infrastructure. For the Sami who breeds reindeers the shipping has not so important impact on their lives. For Greenlanders shipping is a condition sine qua non for the economic development. The use of the Northern Sea Route for the Asian countries, especially for China but also for Japan, South Korea and India, becomes important for the economic, strategic and geopolitical reasons. Possible incidents and conflicts linked with territorial disputes and tensions in Asia and in the Pacific region can lead to a blocking the transit through the Strait of Malacca and the Southern Route. One can add the limited capacity of the Suez Canal and the acts of piracy nearby Africa. Securing alternative lines of supply for the energy and mineral resources is for many Asian countries the necessity. Therefore the process of a gradual opening of the Arctic to the shipping not only ‘internal’ and ‘infra-arctic’ but also ‘trans-arctic’ and ‘transit’ or even ‘trans-polar’ is inevitable.46 In consequence the problem of the maintaining the principles of freedom of navigation in the Arctic has to be viewed not only as a problem of the Arctic States but it becomes a global question of primary importance for the whole international community. In this situation one can assume that the pressure and interests in the maintaining and guarantee of freedom of navigation in the Arctic will increase and the actions aiming at its limitation will be subjected to the increasingly strong criticism and objections.47

46  Suffice to observe that the transit passage along the Northern Sea route has increased from 4 vessels in 2010, 34 in 2011, 46 in 2012 to 71 in 2013. 47  J. Symonides, M. Symonides, “L’Arctique: région de coopérations ou de conflits?”, Annuaire Français des Relations Internationales, vol. XIV (2013): 197–211.

PART 5 The Area

⸪

Chapter 16

International Subjectivity of Corporations Operating in the Area and Universal Jurisdiction for Environmental Damage Pablo Ferrara | ‫ּיֹולְך יְ הוָֹ ה‬ ֶ ַ‫מׁשה ֶאת יָ דֹו ַעל ַהּיָ ם ו‬ ֶ ‫ וַ ּיֵ ט‬.‫כא‬ ‫רּוח ָק ִדים ַעּזָ ה ָּכל ַה ַּליְ ָלה וַ ּיָ ֶׂשם ֶאת ַהּיָ ם ֶל ָח ָר ָבה וַ ָּיִּב ְקעּו‬ ַ ‫ֶאת ַהּיָ ם ְּב‬ :‫ַה ָּמיִ ם‬

21. And Moses stretched out his hand over the sea, and the Lord led the sea with the strong east wind all night, and He made the sea into dry land and the waters split. Exodus 14:21 In 1967, the hand of man seemed to be stretching over the oceans waters once again. On November the 1st, 1967, the Maltese Ambassador to the United Nations—Arvid Pardo—suggested to the General Assembly that the deep seabed and ocean floor and its common resources should be declared ‘common heritage of mankind’ (CHM).1 Three years later, on 17 December 1970, the UN General Assembly adopted the Declaration of Principles Governing the Seabed and Ocean Floor, and the Subsoil thereof, Beyond the Limits of National Jurisdiction.2 Ambassador Pardo’s proposal was only the prelude to a large and conflictive series of negotiations in the later context of 1982 United Nations Convention on the Law of the Sea (1982 UNCLOS).3 In any case, for some time already had the main mining corporations and their supporting states been doing feasibility research for deep seabed mining.4 Interests were upon collision.5 1  UN General Assembly, Official Records, 22nd Session First Committee, Doc.A/C.1/PV.1515, 1 November 1967, p. 2. 2  GA Resolution 2749 (XXV). 3  UN General Assembly Official Records, 22nd Session First Committee, Doc. A/C.1/PV.1515, p. 12. 4  See A.M. POST, Deep sea mining and the law of the sea (Leiden: Martinus Nijhoff Publishers, 1983) 1–57. 5  Id., at 116. © koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004283787_017

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Public actors decided, then, to choose their plenipotentiaries and leave the matter to negotiation. Nevertheless, eight years of debate and great expectations could not compensate the disappointment of 1982 UNCLOS’ Part XI, as the text—including its references to the ‘common heritage of mankind’ regime—seemed somehow ‘tendentious’ both for mining corporations and their supporting states.6 This circumstance, along with the retrieval of mining markets’ demand, led offshore projects to stagnation and somnolence for twelve years throughout a full reordering of world geo-politics, global economy, and mineral market evolution. On 17 August 1994, almost forty years after the first signs of interest, mining corporations and their neoliberal supporting governments decided it was good time to move on.7 After new negotiations and a new agreement, 1982 UNCLOS machinery was finally turned on and the Seabed Disputes Chamber (the SDC) of the United Nations International Tribunal for the Law of the Sea (ITLOS) received a request for an Advisory Opinion (the Opinion) from the International Seabed Authority (the Seabed Authority) regarding “Responsibilities and Obligations of States sponsoring persons and entities with respect to activities in the Area”.8 Regarding the area of international subjectivity, the Opinion of the SDC is at first sight strongly state-centered and, possibly, rather ‘conservative’ in a doctrinarian sense due to the fact that it conveys the consciousness of the lack of ‘materialization of the international subjectivity’ of actors performing activities in the Area (i.e., corporations). In contrast, many modern literature scholars have discarded the traditionally overwhelming state-centered conception of the international legal framework. For them, “. . . the state is not considered a historical fact, but a legal status; individual freedom is not regarded best preserved inside the state, but by making it a concern for the international community as a whole; (. . .) factual developments do not have direct legal value, but have to be transformed into law through principled justification.”9 In this line of thought, an actualized contemporary legal order must outline an ‘inclusive’ framework of reference for international personality.10 6  See Kelmal Maslar, The concept of the common heritage of mankind in international law (Leiden: Martinus Nijhoff Publishers, 1998), 206. 7  Id., at 216. 8  Responsibilities and obligations of states sponsoring persons and entities with respect to activities in the area, Seabed Disputes Chamber of The International Tribunal for the Law of the Sea (Advisory Opinion) (1 February 2011); hereinafter AO. 9  Roland Portmann, Legal personality in international law (Oxford: Oxford University Press, 2010), 282. 10  Id., at 283.

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Precisely, this chapter stands side by side with modern literature, discarding the traditional overwhelming state-centered conception of the international legal framework in order to open the debate around the possibility of ‘universal jurisdiction’ for cases of environmental damage produced by private entities performing deep seabed mining activities in the Area. Most certainly, then, it is possible to assess that this is not a discussion on de lege lata aspects of Public International Law of the Sea, but rather an essay on de lege ferenda criteria needful—even imminent—ocean matters. Subjectivity Generalities As previously alluded, modern literature scholars seem to have put aside the traditional international legal framework in exchange for an actualized contemporary legal order, with the following milestones: “(i) the openness of international law as a legal system from which no entity is a priori excluded; (ii) the inexistence of natural or primary as opposed to derived or secondary international persons.”11 In addition, according to the new international literature: [T]he personal scope of an international rule, with the exception of certain fundamental principles in which there is a presumed personality of individuals, is determined according to general rules of interpretation without starting from a particular presumption. In this process, recognition of international legal status may have considerable evidential value, but it is not in itself necessary or sufficient for constituting personality in international law; similar considerations apply with respect to effective actor status. It ensues that the sole consequence of being an international person is to be able to invoke international responsibility and to be held internationally responsible as far as applicable secondary rules exist. Crucially, it is not a consequence of personality to have the capacity to create international law.12 According to the abovementioned, it is possible to affirm that “. . . there is no sound basis for effective actor quality directly leading to international legal status,”13 and that the door is always open to new actors for the acquisition of 11  Id., at 269. 12  Id., at 283. 13  Id., at 269.

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international personality provided they comply with the formal and individualistic requirements of the case: It is convenient to summarize the basic principles for personality in international law, which follow from a combination of the formal and individualistic conception: (1) International law is an open system. No entities are a priori excluded from it. (2) International personality follows from an international norm addressing an entity. It is thus acquired a posteriori through interpretation of specific norms. In case of treaty norms, normal rules of treaty interpretation apply. In principle, there is no a priori international person. (3) Special considerations apply when international crimes and fundamental human rights are concerned. In this context related to the category of peremptory norms, there is a presumption that these basic principles directly apply to individual human beings, irrespective of them acting in official or private capacity. In this limited sense, individuals are a priori international persons. Where analogy between individuals and legal persons of municipal law is not precluded on grounds of logic, the presumption arguably holds true for the latter. The legal status of states and other public entities in this context is established according to regular principles. (4) Recognition is neither a necessary nor a sufficient condition for acquiring international personality. However, it has considerable evidential value when interpreting the personal scope of specific norms, especially those of customary nature. A similar function is exerted by effective actor status. (5) The only direct consequence of possessing personality in international law is the capacity to invoke responsibility and to be held responsible for internationally wrongful acts (as far as applicable secondary rules exist). There is no further consequence of personality; in particular, there is no inherent capacity to create law.14 Multinational Corporations and Mining Activities Under the framework described, multinational corporations have been consolidating their international subjectivity during the last fifty years in several 14  Id., at 276.

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ways,15 backed up by their substantial power in the international scenario (bargaining power, policy influence, political lobby, economic intervention, etc.).16 On the latter, since the early beginning of the process of internationalization of corporations, mining companies have figured among the top multinationals.17 The situation hasn’t change too much—except for the appearance of telecommunication and computer companies—, and according to Price Waterhouse Coopers in 2013 there were 6 mining companies among the global top 100 capitalization multinational corporations (Table 1).18 Now, if these companies’ capitalization value were compared worldwide with the States’ national GDP, they would fit between the 62nd and 51st strongest world economies (World Bank GDP report for 2012).19 This provides an image of the potential power and interests at ease regarding mining corporations, their activities, associated States, and finally, relevant normative. TABLE 1

Mining Companies Among the Global Top 100 Capitalization Multinational Corporations

Company Name

Nationality

Rank +/– 31 March Market 31 March Market 2013 Rank Cap $bn 2008 Rank Cap $bn

BHP BILLITON RIO TINTO

Australia United  Kingdom Brazil Germany Germany Saudi Arabia

–7 –35

28 65

171 92

21 30

175 155

–41 +39 +22 –37

67 74 83 87

90 85 80 76

26 113 105 50

159 61 64 112

VALE SA BAYER BASF SABIC

Source: PWC Infographics Report 15  See Peter T. Muchlinsky, Multinational enterprises & the law (Oxford: Blackwell Publishers, 2007), 18. 16  Jeanne Elisabeth Nijman, The concept of international legal personality 354 (The Hague: T.M.C. Asser Press, 2004). 17  See supra 15. 18  See “Price Waterhouse Cooper’s global top 100 companies infographics report”, available online at http://www.pwc.com/gx/en/audit-services/capital-market/publications/ top100-market-capitalisation.jhtml (Consulted on March 2014). 19  The list of national GDP per country at the World Bank Web Page: http://data.worldbank.org/indicator/NY.GDP.MKTP.CD?order=wbapi_data_value_2012+wbapi_data_ value+wbapi_data_value-last&sort=desc (Consulted on March 2014).

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Normative When discussion regarding deep-seabed mining reaches the level of law, national, transnational, and international interests collide. Of course, it is not easy to find a balance for the activity’s inherent risks—both from the investors’ lack of certainty regarding the mining spot as from the prospective environmental damage caused by the activity—and its extremely high potential profits. Nor is it easy to understand the importance to conceive a legal framework that allows a dangerous-but-highly-profitable activity and at the same time provides the broadest scope of insurance and securities for subjects not remotely involved in it (i.e. peoples from a far, land-locked, developing country State), but who are supposedly entitled to benefits and protected in case of environmental damage by Public International Law. Even if not at the time of this writing, this conundrum may become a harsh dilemma for the international community. And this dilemma is—of course—the quid of this essay.

The Common Heritage of Mankind: A Preliminary Concept?

Whilst the quid of the present work is clear, it is interesting to analyze the possibilities of setting a point of departure in the analysis. In effect, there is one, and it is constituted by the international law institute of CHM. The full scope of the concept of CHM is uncertain, but it is possible to ascertain some particular elements when applied to common space areas such as the seabed: (i) the areas can not be appropriated; (ii) the use of the areas and their resources are governed and managed by an international authority; (iii) there is a regime of active and equitable sharing of benefits derived from the exploitation of resources; (iv) the peaceful use of the areas and resources concerned; and (v) the protection and preservation of the areas and resources for the benefit of mankind.20 On the other hand, Professor Baslar affirms that “. . . the common heritage of mankind, as part of international resource management, is a functional concept rather than a territorial one,” and as such, “. . . it is not necessarily concerned with the ownership of the area where resources are found, but with the use of the resources for the benefit of mankind.”21 Evidently, the quid of the CHM as a legal institution of international law is the management of resources; in particular, the fairness and

20  See supra 6, at 246. 21  Id., at 49.

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justice connected with that management22 and the subjects substantiating that management.23 On the latter, Professor Baslar reappraises: [T]he reappearance of mankind in international law constitutes a significant evidence of the demise of positivist school, because, starting from the Grotius’ era until the second half of the 20th century, only states were deemed as the sole subjects of international relations having rights and duties. But at the dawn of the 21st century, it is believed that ‘state sovereignty in international law is an idea whose time has come and gone.’24 The resurgence of mankind pictures a shift from state-centered international law to anthropocentric international law, or from law of nations to law of mankind, or even from individualism to egalitarianism.25 Altogether, the anthropocentric character of the CHM concept may give way to the result that ‘mankind’ is no more than the steward of the earth charged with the protection of the Earth and living organisms therein, that is, a custodi in terram.26 Nevertheless, if the term ‘mankind’ is to be given an international legal personality the representation of all its components must be assured. Because of this difficulty, “. . . it is generally presumed that ‘the international community’ represents mankind,” and that “. . . the international system reflects more than ever before the growing importance of the idea of the international community: such a community is gaining a sui generis legal status distinct from its constituting nuclei (states).”27 The Common Heritage of Mankind and the Oceans Framework Professor Baslar refers that “. . . [w]hen Pardo introduced the common heritage on 1 November 1967 the protection of the marine environment against pollution of ships, radioactive waters or dumping was part of the common heritage of mankind.”28 Professor Baslar is, indeed, a supporter of the idea that 22  For a development on the approaches to resource management, see Id., at 57. 23  See H. Gould, The legacy of punishment in international law (New York: Palgrave Macmillan, 2010), 70. 24  R.B. Lillich, “Sovereignty and Humanity: Can They Converge?”, in The spirit of Uppsala (Berlin/New York: W. de Gruyter, 1981), 105. 25  Supra 23, at 71. 26  Supra 6, at 65. 27  Id. 6, at 75. 28  Id., at 235.

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protection of the marine environment from the adverse effects of deep seabed mining has always been an element of CHM. However, since the early 1980s, the concept of CHM has spread through the arguments of international environmental lawyers with a broader and independent sense. Thus, international environmental law is claimed to have gained sufficient substance as to become the source of demand at a judicial court. The Common Heritage of Mankind and Deep Seabed Mining In 1969, the Legal Sub-Committee of the Seabed Committee was taken up on the discussion on the legal status of the area in question, providing the following comments: [T]he notion on the ‘common heritage of mankind’ would provide the basis for specific principles concerning the area; accordingly, all the rules and principles for activities in the sea-bed should be based on that notion. Its elements and consequences were: the notion of trust and trustees; indivisibility of the heritage; the regulation of the use of that heritage by the international community; the most appropriate equitable exploitation of this area to the developing countries; freedom of access and use by all States; and the principle of peaceful use.29 In addition, the intention of Article 140 of 1982 UNCLOS to differentiate ‘mankind,’ ‘States,’ and ‘peoples’ as different subjects is outlined when considering the economic and non-economic benefits of activities in the Area: Article 140 Benefit of mankind 1. Activities in the Area shall, as specifically provided for in this Part, be carried out for the benefit of mankind as a whole, irrespective of the geographical location of States, whether coastal or land-locked, and taking into particular consideration the interests and needs of developing States and of peoples who have not attained full independence or other self-governing status recognized by the United Nations in accordance with General Assembly resolution 1514 (XV) and other relevant General Assembly resolutions. 2. The Authority shall provide for the equitable sharing of financial and other economic benefits derived from activities in the Area through any appropriate mechanism, on a non-discriminatory basis, in accordance with Article 160, paragraph 2(f)(i).30 29  See SBC Report 1969, part Two, paras. 20–21, at 14. 30  1982 UNCLOS, emphasis added.

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The Common Heritage of Mankind and the Marine Environment In giving effect to international rules and standards, Part XII of 1982 UNCLOS explicitly acknowledges its framework character, and the existence of other global and regional basis in formulating rules and standards.31 As Professor Redgwell poses, “. . . an echo of the consequences and obligations arising under other multilateral, regional or bilateral agreements is found in Article 282 of the LOSC . . .,”32 which “. . . provides that a dispute regarding the interpretation or application of the LOSC shall be submitted to a procedure entailing binding decision thereunder, then that procedure will prevail over the procedures in Part XV of the LOSC, unless the parties to the agreement agree otherwise.”33 In this regard, the ITLOS MOX Plant Case between Ireland and the United Kingdom settled that each and every environmental right and obligation, though similar or identical, ran separately between 1982 UNCLOS and other legal multilateral or regional sources.34 Such has always been the destiny of conventions on environmental matters in relation to 1982 UNCLOS: parallelism.35 The evolution of international conventional environmental sea law has been quite substantial since 1982. Nevertheless, the basic set up in 1982 UNCLOS remains to be “. . . harmonization based on obligation of result (i.e. national standards shall be ‘no less effective’ than global rules and standards, contained within and without the LOSC, in preventing, reducing and controlling pollution of the marine environment by dumping).”36 Different international environmental obligations refer to the mining activities in the seabed. Their legal source can be similar, though independent. In any case, they are all linked to the CHM concept independently from seabed mining activities. Among the elements to support this assertion, there are six which are particularly relevant: (i) the difference in the nature of the international subject interested in the implementation of CHM; (ii) the theoretical difference of the concept of ‘justice’ connected to the international obligation; (iii) the difference of the jurisdictional location of the activities regulated by the international obligation; (iv) the difference in share and burdens linked to the activity; (v) the difference of scope and possibility to define clear limits; 31  Catherine Redgwell, “From Permission to Prohibition: The 1982 Convention on the Law of the Sea and Protection of the Marine Environment”, in The Law of the Sea: Progress and Prospects, ed. D. Freestone, R. Barnes, & D. Ong (Oxford: Oxford University Press, 2006), 180–191. 32  ‘LOSC’ refers to 1982 UNCLOS. 33  Supra 30, at 183. 34  MOX Plant Case (No 10) (Ireland v United Kingdom) (Provisional Measures), ITLOS Reports (2001), available at http://www.itlos.org. 35  Supra 32, at 184 et seq. 36  Id., at 189.

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and (vi) the presence or absence of manifestation of an element of stewardship and fiduciary responsibilities connected to the activities.37

The Opinion of the Seabed Disputes Chamber: Obligations and Responsibilities in Parallel

The Sources of the Obligations The SDC was clear when it delivered its Opinion on the substantial burden of the states’ primary obligations under 1982 UNCLOS: The role of the sponsoring State, as set out in the Convention, contributes to the realization of the common interest of all States in the proper application of the principle of the common heritage of mankind which requires faithful compliance with the obligations set out in Part XI. The common-interest role of the sponsoring State is further confirmed by its obligation, set out in Article 153, paragraph 4, of the Convention, to ‘assist’ the Authority, which, as stated in Article 137, paragraph 2, of the Convention, acts on behalf of mankind.38 According to the SDC, the key provisions concerning the obligations of the sponsoring States are defined by: Article 139, Paragraph 1; Article 153, Paragraph 4 (especially the last sentence); and Annex III, Article 4, paragraph 4, of 1982 UNCLOS.39 Nevertheless, the definition of the term ‘international community’ is quite demanding a task, and attempting to interpret ‘mankind’ as the international community of ‘states’ seems to be rather narrow, stretch, and—altogether—misleading. The Actors in the Area Pursuant to Annex III, Article 4, Paragraph 3, of 1982 UNCLOS, and confirmed in Regulation 11, Paragraph 2, of the Nodules Regulations and of the Sulphides Regulations, the SDC made the following statements regarding actors (i.e. domestic law entities) performing activities in the Area: (i) the connection between States Parties and domestic law entities required by 1982 UNCLOS is twofold, namely, that of nationality and that of effective control; (ii) all contractors and applicants for contracts must secure and maintain the sponsor37  See AO, para. 276. 38  Id., para. 76. 39  Id., para. 99.

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ship of the State or States of which they are nationals; and (iii) if another State or its nationals exercises effective control, the sponsorship of that State is also necessary.40 In relation to the act of sponsorship, the SDC stated that no provision of 1982 UNCLOS imposes an obligation on a State Party to sponsor an entity that holds its nationality or is controlled by it or by its nationals. The SDC clearly added: As the Convention does not consider the links of nationality and effective control sufficient to obtain the result that the contractor conforms with the Convention and related instruments, it requires a specific act emanating from the will of the State or States of nationality and of effective control. Such act consists in the decision to sponsor.41 The Activities in the Area In the first place, “. . . the expression ‘activities in the Area’, in the context of both exploration and exploitation, includes, first of all, the recovery of minerals from the seabed and their lifting to the water surface.”42 In addition, “. . . the transporting, processing and marketing of minerals recovered from the Area. Consequently, the latter activities are not included in the notion of ‘activities in the Area’ referred to in Annex IV, Article 1, paragraph 1, of 1982 UNCLOS,”43 however “. . . transportation within that part of the high seas, when directly connected with extraction and lifting, should be included in activities in the Area,”44 due to the fact that “. . . inclusion of transportation to points on land could create an unnecessary conflict with provisions of 1982 UNCLOS such as those that concern navigation on the high seas.”45 Finally, regarding exploration, though excluded from 1982 UNCLOS definition of ‘activities in the Area’ the SDC considered it “. . . appropriate to observe that some aspects of the present Advisory Opinion may also apply to prospecting.”46 In effect, the SDC noted in its Opinion that:

40  Id., para. 77. 41  Id., para. 78. 42  Id., para. 94. 43  Id., para. 84. 44  Id., para. 96. 45  Id., para. 96. 46  Id., para. 98.

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[T]he Regulations issued to date by the Authority deal only with prospecting and exploration. Considering that the potential for damage, particularly to the marine environment, may increase during the exploitation phase, it is to be expected that member States of the Authority will further deal with the issue of liability in future regulations on exploitation.47

The Obligations of the States vis à vis the Obligations of the Contractors The SDC made clear that its primary addressees were states, either sponsoring the activities or corporately linked to the private entity performing them;48 only in the background did the SDC directly refer that the entities were responsible for deep seabed mining “. . . ‘in conformity’ or in ‘compliance’ with the rules to which they refer . . .”.49 The Opinion is strongly focused on finding and holding the nexus between private actors and states in order to lead burdens and liabilities from the former to the later: While it is not considered reasonable to make a State liable for each and every violation committed by persons under its jurisdiction, it is equally not considered satisfactory to rely on mere application of the principle that the conduct of private persons or entities is not attributable to the State under international law (see ILC Articles on State Responsibility, Commentary to Article 8, paragraph 1).50

47  Id., para. 168. 48  Id., para. 158. Regarding States’ labeling, the SDC stated that: “Equality of treatment between developing and developed sponsoring States is consistent with the need to prevent commercial enterprises based in developed States from setting up companies in developing States, acquiring their nationality and obtaining their sponsorship in the hope of being subjected to less burdensome regulations and controls. The spread of sponsoring States ‘of convenience’ would jeopardize uniform application of the highest standards of protection of the marine environment, the safe development of activities in the Area and protection of the common heritage of mankind.” See AO, para. 159. 49  These rules are referred to as ‘this Part’ (Part XI) in: (i) Article 139 of 1982 UNCLOS, as “. . . the relevant provisions of this Part and the Annexes relating thereto, and the rules, regulations and procedures of the Authority, and the plans of work approved in accordance with paragraph 3 . . .”; (ii) Article 153, paragraph 4, of 1982 UNCLOS; and (iii) Article 4, paragraph 4, of 1982 UNCLOS Annex III (“. . . the terms of its contract and its obligations under this Convention . . .”). See AO, paras. 103 and 104. 50  Id., para. 112.

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Under international law, the acts of private entities are not directly attributable to States except where the entity in question is empowered to act as a State organ (Article 5 of the ILC Articles on State Responsibility) or where its conduct is acknowledged and adopted by a State as its own (Article 11 of the ILC Articles on State Responsibility).51 [T]he rules of the Convention concerning activities in the Area, although being treaty law and thus binding only on the subjects of international law that have accepted them, become effective for sponsored contractors which find their legal basis in domestic law. This mechanism consists in the creation of obligations which States Parties must fulfil by exercising their power over entities of their nationality and under their control.52 Regarding the content of the obligation, the SDC differentiated two categories: (i) ‘indirect obligations’ of conduct or ‘due diligence’ obligations,53 and (ii) ‘direct obligations’.54 With respect to the first category, the SDC considered that it was not called upon to render specific advice as to the necessary and appropriate measures that the sponsoring State must take in order to fulfill its responsibilities under 1982 UNCLOS, as “. . . [j]udicial bodies may not perform functions that are not in keeping with their judicial character.”55 Nevertheless, it posed the milestones to understand the underneath law. In this sense, according to the SDC, the first category must not be understood as an obligation to achieve, but rather “. . . an obligation to deploy adequate means, to exercise best possible efforts, to do the utmost . . .”56 under certain conditions: (i) sponsoring States’ ‘responsibility to ensure’ applies ‘within their legal 51  Id., para. 182. 52  Id., para. 108. 53  In its Judgment about the Pulp Mills on the River Uruguay, the ICJ illustrated the meaning of a specific treaty obligation that it had qualified as ‘an obligation to act with due diligence’ as follows: “It is an obligation which entails not only the adoption of appropriate rules and measures, but also a certain level of vigilance in their enforcement and the exercise of administrative control applicable to public and private operators, such as the monitoring of activities undertaken by such operators . . .” (Paragraph 197) Similar indications were given by the International Law Commission in its Commentary to Article 3 of its Articles on Prevention of Transboundary Harm from Hazardous Activities (2001). 54  Id., para. 121. 55  Id., para. 227. 56  Id., para. 110.

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systems,’57 taking into account, among other things, the particular characteristics of that system;58 (ii) the measures taken by the States must be ‘reasonably appropriate;’59 and (iii) the standard of due diligence has to be more severe for the riskier activities.60 The second category is formed particularly by: (i) the obligation to assist the Seabed Authority in the exercise of control over activities in the Area; (ii) the obligation to apply a precautionary approach; (iii) the obligation to apply best environmental practices; (iv) the obligation to take measures to ensure the provision of guarantees in the event of an emergency order by the Authority for protection of the marine environment; (v) the obligation to ensure the availability of recourse for compensation in respect of damage caused by pollution; and (vi) the obligation to conduct environmental impact assessments.61 Liability Framework According to the SDC, the framework for liability is set up by Article 139, Paragraph 2, and Article 304 of 1982 UNCLOS, which refer, respectively, to the ‘rules of international law’ as well as to “. . . the application of existing rules and the development of further rules regarding responsibility and liability under international law”.62 The SDC decided that account has to be taken of such rules under customary law, especially in light of the ILC Articles on State Responsibility.63

57  Id., para. 117. 58  Id., para. 229. 59  Id., para. 120. 60  Id., para. 117. 61  Id., para. 122. Emphasis added. 62  Article 139, paragraph 2, of 1982 UNCLOS and the related provisions referred to above, prescribe or refer to different sources of liability, namely, rules concerning the liability of States Parties (Article 139, paragraph 2, first sentence, of 1982 UNCLOS), rules concerning sponsoring State liability (Article 139, paragraph 2, second sentence, of 1982 UNCLOS), and rules concerning the liability of the contractor and the Authority (referred to in 1982 UNCLOS Annex III, Article 22). See AO, para. 171. 63  Article 139, paragraph 2, of 1982 UNCLOS and the related provisions referred to above, prescribe or refer to different sources of liability, namely, rules concerning the liability of States Parties (Article 139, paragraph 2, first sentence, of 1982 UNCLOS), rules concerning sponsoring State liability (Article 139, paragraph 2, second sentence, of 1982 UNCLOS), and rules concerning the liability of the contractor and the Authority (referred to in 1982 UNCLOS Annex III, Article 22). See AO, para. 171.

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Source In the first place, liability arises from the failure of the sponsoring State to carry out its own responsibilities. The basic, general condition is that the sponsoring State is not liable for the failure of the sponsored contractor to meet its obligations.64 There is, however, a link between the liability of the sponsoring State and the failure of the sponsored contractor to comply with its obligations, thereby causing damage.65 Precisely, regarding the relationship between the contractor’s liability and that of the sponsoring State, attention may be drawn to Annex III, Article 22, of 1982 UNCLOS, which reads as follows: The contractor shall have responsibility or liability for any damage arising out of wrongful acts in the conduct of its operations, account being taken of contributory acts or omissions by the Authority. Similarly, the Authority shall have responsibility or liability for any damage arising out of wrongful acts in the exercise of its powers and functions, including violations under Article 168, paragraph 2, account being taken of contributory acts or omissions by the contractor. Liability in every case shall be for the actual amount of damage.66 Consequently, there is only one point of connection, namely, that the liability of the sponsoring State depends upon the damage resulting from activities or omissions of the sponsored contractor (see paragraph 181). Nevertheless, according to the SDC, this is merely a trigger mechanism, and such damage is not automatically attributable to the sponsoring State: “If the contractor has paid the actual amount of damage, as required under Annex III, Article 22, of 1982 UNCLOS, in the view of the Chamber, there is no room for reparation by the sponsoring State.”67 The situation becomes even more complex if the contractor has not covered the damage fully. It was pointed out in the Opinion proceedings that “. . . a gap in liability may occur if, notwithstanding the fact that the sponsoring State has taken all necessary and appropriate measures, the sponsored contractor has caused damage and is unable to meet its liability in full.”68 It was further pointed out that “. . . a gap in liability may also occur if the sponsoring State failed to meet its obligations but that failure is not causally

64  Id., para. 172. 65  Id., para. 173. 66  Id., para. 199. 67  Id., para. 202. 68  Id., para. 203.

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linked to the damage.”69 In the Opinion’s written and oral statements, States Parties to 1982 UNCLOS expressed different views on this issue; some argued that the sponsoring State had a residual liability, that is, the liability to cover the damage not covered by the sponsored contractor although the conditions for a liability of the sponsoring State under Article 139, paragraph 2, of 1982 UNCLOS were not met; other States Parties took the opposite position. In the view of the SDC, the liability regime established by Article 139 of 1982 UNCLOS and in related instruments leaves no room for residual liability: the liability of the sponsoring State and the liability of the sponsored contractor exist in parallel.70 Conditions The terms of Article 139, Paragraph 2, of 1982 UNCLOS clearly establishes two conditions for liability to arise: (i) the failure by act or omission of the sponsoring State to carry out its responsibilities; and (ii) the occurrence of damage.71 Neither 1982 UNCLOS nor the relevant Regulations specify what constitutes compensable damage, or which subjects may be entitled to claim compensation.72 The SDC determined, then, that “. . . [i]t may be envisaged that the damage in question would include damage to the Area and its resources constituting the common heritage of mankind, and damage to the marine environment.”73 Regarding claim, the SDC asserted that “. . . [s]ubjects entitled to claim compensation may include the Authority, entities engaged in deep seabed mining, other users of the sea, and coastal States”.74 With regard to the standard of liability, it was argued in the proceedings that the sponsoring State has strict liability, i.e., liability without fault;75 in the event of multiple sponsorship, liability is joint and several unless otherwise provided in the Regulations issued by the Authority.76 Compensation shall be for the actual amount of damage, that is, full compensation or restitutio in integrum.77 69  Id. 70  Id., para. 204. 71  AO, paras. 176 and 178. 72  See Regulation 30 of the Nodules Regulations and Regulation 32 of the Sulphides Regulations. 73  Id., para. 179. 74  Id., para. 179. 75  Id., para. 189. 76  Id., para. 192. 77  Id., para. 193 et seq. This conclusion was first reached by the Permanent Court of International Justice in the Factory of Chorzów Case (P.C.I.J. Series A, No. 17, p. 47). The International Law Commission further reiterated this obligation. According to

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Finally, it is essential to consider that the nature of the obligation determines the scope of the liability.78 Availability of Recourse for Compensation The SDC asserted that “. . . it is inherent in the ‘due diligence’ obligation of the sponsoring State to ensure that the obligations of a sponsored contractor are made enforceable.”79 In this sense, Article 235, Paragraph 2, of 1982 UNCLOS reads as follows: States shall ensure that recourse is available in accordance with their legal systems for prompt and adequate compensation or other relief in respect of damage caused by pollution of the marine environment by natural or juridical persons under their jurisdiction. Support for the enforcement of contractor’s obligations under the domestic law of the sponsoring State is an essential requirement in a number of national jurisdictions.80 The 1982 UNCLOS specifies in various provisions the issues that should be covered by the sponsoring State’s laws and regulations. In particular, Article 39 of the Statute dealing with enforcement of decisions of the SDC provides: The decisions of the Chamber shall be enforceable in the territories of the States Parties in the same manner as judgments or orders of the highest court of the State Party in whose territory the enforcement is sought.81 Finally, reference must be made to Annex III, Article 21, Paragraph 2, of 1982 UNCLOS, which provides:

Article 31, paragraph 1, of the ILC Articles on State Responsibility: “The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act”. The Chamber notes in this context that treaties on specific topics, such as nuclear energy or oil pollution, provide for limitations on liability together with strict liability. The Chamber wishes to refer to Article 34 of the ILC Articles on State Responsibility. It reads: Full reparation for the injury caused by the internationally wrongful act shall take the form of restitution, compensation and satisfaction, either singly or in combination, in accordance with the provisions of this chapter. 78  AO, para. 177. 79  Id., para. 239. 80  Id., para. 218. 81  Id., para. 235.

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Any final decision rendered by a court or tribunal having jurisdiction under this Convention relating to the rights and obligations of the Authority and of the contractor shall be enforceable in the territory of each State Party. In a number of national jurisdictions, these provisions may require specific legislation for implementation. In any case, they certainly are mandatory, but against whom: Who should be sued to ensure compensation? To this question, the SDC answered that these obligations apply both “. . . to the sponsoring State . . .” as well “. . . as the State with jurisdiction over the persons that caused the damage.”82 Nevertheless, no reference was made to the private entities performing the activities or to any possibility of co-demanding them in case of collusion to avoid compliance of obligations of ‘due diligence.’ Actio potestas: Where Paralells It is possible to understand that the necessity for a rather impartial ‘active hand’ taking care of the CHM refers at a certain point to the ‘Public Trust Doctrine,’ and consequently to the opportunity to recognize a trustee dealing with the specific interests of ‘mankind.’ This has many times been the point of departure for the discussion about the creation of a CHM authority as well as about the creation of reserve funds. In a sense, it seems that the international subject has a ‘collective soul,’ but unfortunately, no ‘recognizable body.’ It would therefore be of the essence of the compliance of this legal institution to provide the soul with a proper body. An answer to this might be the installment of an adequate actio potestas.83

Traditional Disputes and Contemporary Bargain

The distinction between ‘state’ and ‘nation’ (and the parallel differentiation between both of those terms and ‘sovereign’) is part of what caused ‘interna82  “By requiring the sponsoring State to establish procedures, and, if necessary, substantive rules governing claims for damages before its domestic courts, this provision serves the purpose of ensuring that the sponsored contractor meets its obligation under Annex III, Article 22, of the Convention to provide reparation for damages caused by wrongful acts committed in the course of its activities in the Area.” AO, para. 140. 83  “Ideally, a non-state representation of future generations is needed should the common heritage of mankind be effectively implemented. However, this is a big challenge for present international law.” Supra 6, at 78.

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tional punishment’ to fall out of general favor. Nations, as congeries of natural persons, were regarded as bound by Natural Law; States, as artificial persons distinct from the natural persons they ‘personated,’ were progressively harder to portray as bound by Natural Law. There were three main components to classical ‘international punishment’: (i) absolutely and universally binding nonconsensual rules; (ii) universal standing to punish those who violate the rules without regard to injury or interest; (iii) and an understanding of sovereignty without implications of inviolability or the sort of immunity from judgment that comes from juridical equality. The first pillar of international punishment was absolute rules of universal scope; the second—logically dependent upon the first—was the universal standing to enforce those rules. Modern international law has conceptualized obligations as bilateral in character even when the instruments declaring them were multilateral in scope. International law does not generally understand obligations to be owed to the community of states at large. Standing to seek redress for the violation of a rule was (and remains) overwhelmingly limited to parties directly and materially injured by the violation. There was nothing necessary about this: bilateral agreements were simply more common historically, and bilateral obligation was the cognitive framework within which early multilateral agreements were formulated, and this conceptualization has been utilized ever since. The last decades of the 20th Century saw the enunciation—if not clearcut application—of a new manifestation of the second pillar. Since the 1970s, international law recognized the existence of obligations erga omnes, that is, obligations that were owed generally to the international community as a whole. The basic postulatio regarding the violation of these obligations, since they were owed to the international community generally, was that it gave rise to general standing to enforce them, namely, to the actio popularis. Based on a practice from Roman law, the actio popularis is an action brought against a malfeasant not on the personal behalf of the party bringing the action (nor like a criminal action is it brought by the state), but on behalf of the community. In international law, it is one state making a legal claim against another not for an injury it suffered by the conduct of the latter, but for the latter’s mere violation of an obligation owed generally (an obligation erga omnes). This practice is well known in many domestic legal settings, but it has been greeted simultaneously with trepidation and skepticism in international law. The emphasis with obligations erga omnes is not on violations of Natural Law punishable by any and all, but rather Positive Law, voluntarily undertaken obligations to all legally actionable by any. In principle, every state has a legal

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interest in the observance of obligations erga omnes; thus, it has been asserted that any state may take legal action to ensure compliance with an obligation erga omnes. In this sense . . . [p]ositivists, on the one side, apologize that the traditional sources of international law do not give due credibility to the common heritage of mankind as a legal principle. Whereas, on the other side, non-positivits claim that the common heritage of mankind is an established legal principle of international law, acquiring its legal normativity from other sources such as general principles of law and even from peremptory norms.84 In order not to oscillate between ‘apology’ and ‘utopia’, Professor Baslar suggests that “. . . the view that the difficulty of bringing the common heritage of mankind into the corpus of international law may be surmounted by having recourse to the Grotian or eclectic philosophy.”85 In the end, “. . . the common heritage of mankind as a distinctive illustration of idealism relies on different sources like, inter alia, resolutions and declarations of international organizations, quasi-legislative acts of the United Nations and jus cogens.”86 From the current standing point, the goal is to internationalize the CHM concept as a general principle of law inherent to every human being, substantiating the naissance of a ‘human right’ per se: [I]f the concept of common heritage of mankind was, first of all, transposed into the human rights framework, it might be possible to justify human rights law on a non-conventional and non-consensual basis by rejecting customary law and opting rather for general principles of law. Accepting the common heritage of mankind as a human right would also enable us to justify the right to intervention in internal affairs on behalf of mankind and the right to locus standi or actio popularis in the internal affairs of sovereign states at a time when humanity’s heritages are misused.87 It is precisely at this point when the question rises: What about the possibility of an ‘actio popularis’ for environmental damages with universal ‘locus standi’? 84  Id., at 367. 85  Id., at 368. 86  Id., at 359. 87  Id., at 369.

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The Opinion of the Seabed Disputes Chamber As previously discussed, when analyzing breach of ‘due diligence’ obligations, no mention was made by the SDC to the possibility of bringing private entities to court in case of environmental sea damage. In addition, the SDC made reference only indirectly to the existent substantive obligations of Public International Environmental Law—when redirecting them to Part XI of 1982 UNCLOS, according to Article 209.88 In any case, the SDC opened the possibility of the ‘actio popularis’ in charge of the Authority: No provision of the Convention can be read as explicitly entitling the Authority to make such a claim. It may, however, be argued that such entitlement is implicit in Article 137, paragraph 2, of the Convention, which states that the Authority shall act ‘on behalf’ of mankind. Each State Party may also be entitled to claim compensation in light of the erga omnes character of the obligations relating to preservation of the environment of the high seas and in the Area.89 In support of this view, the SDC made reference to Article 48 of the ILC Articles on State Responsibility, which provides: Any State other than an injured State is entitled to invoke the responsibility of another State . . . if: (a) the obligation breached is owed to a group of States including that State, and is established for the protection of a collective interest of the group; or (b) the obligation breached is owed to the international community as a whole.90 Now, it is important to consider that even if the SDC recognized the existence of the environmental obligations erga omnes and the existence of an ‘actio popularis’ to implement, it didn’t recognize unfortunately the possibility to bring private entities to court. The Liability Gap When analyzing the liability ménage, the SDC found itself dealing with what it defined as “. . . a gap in the liability regime established in Part XI of 1982 UNCLOS and related instruments . . . regarding the impact of international law on the deep seabed liability regime.” In order to find a solution to that 88  AO, para. 241. 89  Id., para. 208. 90  Id., para. 180.

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gap, the SDC referred that Articles 139, Paragraph 2, first sentence, and Article 304 of 1982 UNCLOS, state that their provisions are “. . . ‘without prejudice’ to the rules of international law.”91 However, the SDC noted that “. . . if the sponsoring State has not failed to meet its obligations, there is no room for its liability under Article 139, paragraph 2, of 1982 UNCLOS even if activities of the sponsored contractor have resulted in damage. A gap in liability which might occur in such a situation cannot be closed by having recourse to liability of the sponsoring State under customary international law.”92 Then the SDC affirmed that although it was aware of the efforts made by the International Law Commission to address the issue of damages resulting from acts not prohibited under international law such efforts have not yet resulted in provisions entailing State liability for lawful acts. The SDC understood, therefore, that any damage produced under those circumstances was uncovered, drawing the attention of the Authority to the option of establishing a trust fund to cover such damages. Thus, upon unfortunate conceive of the SDC, private entities are to be kept out of the possibilities of a court claim in view of current international law. Tendencies A brief reference shall hereby be made to the United States and Spain in order to provide an idea of how the elements of the current debate are treated in national jurisdictions. Classical Tendencies: The United States of America Alien Tort Act As Georg Nolte recalls, “. . . civil judgments which reply on the principle of universal jurisdiction in cases of asserted violations of international law have mainly occurred in the United States (. . .) based on the Alien Tort Claims Act of 1789.”93 The United States Alien Tort Claims Act (the Act) establishes the jurisdiction of the United States federal courts for “. . . all causes where an alien sues for a tort only in violation of the law of nations or a treaty with the United

91  AO, para. 209. 92  Id. 93  Georg Nolte, “Universal Jurisdiction in the Area of Private Law—The Alien Claims Act”, in The Fundamental Rules of the International Legal Order, ed. C. Tomuschant & J.M. Thouvenin (Leiden: Martinus Nijhoff Publishers, 2006), 373.

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States.”94 On a case-by-case basis, the Act has traditionally been applied in courts in cases dealing with ‘universally recognized principles of international law’ or accepted norms of the international law of human rights,95 upholding protection against either people or incorporated entities.96 Unfortunately, the violation of international environmental law has not fallen under the Act yet.97 The Act itself does not describe a special category of law, but simply speaks of ‘violation of the law of nations’. However, “. . . American courts have always insisted on another requirement: that the relevant norm of the ‘law of nations’ be clear and specific.” In its most recent case, the US Supreme Court accepted the existent ‘specific, universal, and obligatory’ requirement standard.98 Pursuant to this judgment, some authors understand that “. . . for the American judiciary it is not the substance, but the form of an international legal norm that is relevant; not its importance but its specificity; not its moral obviousness, but its visible international acceptance in practice.”99 Now, regarding the reach of the US tribunal’s hand under international law, that remains to be a preliminary question ruled by the Charming Betsy Rule of interpretation of domestic law in conformity with international law.100 On the other hand, the European Union Commission “. . . has underlined the necessity of recognizing the primary jurisdiction of local courts which are better suited to clarify and adjudge the issue.”101 However, this could lead to unfair decisions in cases where corporations are to be sued and which prefer to proceed in their native courts, or else, in a symbolic tool of political hegemony102 through the exercise of extraterritoriality and privatization of the international jurisdiction 94  Alien Tort Statute 28 U.S.C. 1350. 95  Jean-Francois Flauss, “Competence civile universelle et droit international general”, in The Fundamental Rules of the International Legal Order, ed. C. Tomuschant & J.M. Thouvenin (Leiden: Martinus Nijhoff Publishers, 2006), 406. 96  See Filartiga v. Peña Irala (630 F2d 876; CA2 1980), Kadic v. Karadzic (70 F.3d 232; 2nd Cir. 1995); Doe v. Unocal Corp (248 F.3d 915; 9th Cir. 2002), Ken Wiwa v. Royal Dutch Shell Petroleum Co. et al. (226 F.3d 440; 2nd Cir. 2000). 97  See Amlon Metals Inc. V. FMC Corp. 775 F. Supp. 668 (SDNY 1991), p. 670. 98  See Sosa v. Alvarez Machain, 542 US 692(2004). 99  Supra 103, at 376. 100  Id., at 377. Also, Note 14 of the Brief of the Governments of the Commonwealth of Australia, the Swiss Confederation, and the United Kingdom of Great Britain and Northern Ireland as Amicus Curiae in Sosa v. Alvarez Machain. 101  Id., at 379. 102  See Jean-Francois Flauss, “Competence civile universelle et droit international general”, in The Fundamental Rules of the International Legal Order, ed. C. Tomuschant & J.M. Thouvenin (Leiden: Martinus Nijhoff Publishers, 2006), 389.

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of human rights. Thus, a fair boundary to jurisdiction must be tailored, enabling the principle of ‘reasonableness’ through the presence of a foreign defender and the consideration of the doctrine of the forum non conveniens. Contemporary Tendencies: The Prestige Facts The Prestige was a Greek-operated, single-hulled oil tanker, officially registered in the Bahamas, but with a Liberian-registered single-purpose corporation as the owner. On 13 November 2002, while the Prestige was carrying a 77,000 metric tons cargo of two different grades of heavy fuel oil, one of its twelve tanks burst during a storm off Galicia, in northwestern Spain. Fearing that the ship would sink, the captain called for help from Spanish rescue workers, with the expectation that the vessel would be brought into harbor. Local authorities denied the solicitude and ordered the captain to steer the embattled ship away from the coast and head northwest. After heading towards French water, the vessel was once again forced to change its course and head southwards into Portuguese waters in order to avoid endangering France’s southern coast. Fearing for its own shore, the Portuguese authorities promptly ordered its navy to intercept the ailing vessel and prevent it from approaching further. With the French, Spanish and Portuguese governments refusing to allow the ship to dock in their ports, the integrity of the single-hulled oil tanker was deteriorating quickly and soon the storm took its toll. It was reported that a section of the starboard hull had broken off, releasing a substantial amount of oil.103 On 19 November 19, 2002, the ship split in half, sinking during the same afternoon and releasing over 20 million US gallons (76,000 m3) of oil into the sea. The oil tanker was reported to be about 250 kilometers from the Spanish coast at that time. An earlier oil slick had already reached the coast. The Greek captain of the Prestige, Apostolos Mangouras, was taken into custody, accused of not co-operating with salvage crews and of harming the environment. After the sinking, the wreck continued leaking oil. It leaked approximately 125 tons of oil a day, polluting the seabed and contaminating the coastline, especially along the territory of Galicia. Legal Outpoints The Spanish court understood that the callable liability could not refer to the serious economic consequences of the Prestige oil spill. In addition, it affirmed: 103  See, Antecedentes de Hecho, in Denuncia de delitos contra el medio ambiente y daños en espacios naturales protegidos. Buque Prestige—Audiencia Provincial Sección Núm. 1. La Coruña (España)—12/11/2013 (Nº de Recurso: 38/2011).

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. . . Articles 109, 110, 116 and related provisions of the Criminal Code, as was apparent from the wording of these provisions when referring to damages caused by the act or the need for any damages arising from the crime, so if accredited only considered the crime of disobedience, not derived from the same or the same have not caused any damage arising from the Prestige oil spill, regardless of the partially good accreditation of huge damages, requiring ad hoc narrow criteria as follows.104 Precisely, regarding the criteria to set the terms and scope of liability, the Spanish tribunal stated that “. . . ex liability offense [had] no other specialty that originated and therefore the Court [could] freely, in accordance with proven at trial, set the terms and scope;” nevertheless, . . . the rules to be applied for this determination [could] not ignore the fundamental criteria for determining liability in our system, which [meant] that despite the freedom of opinion of what truly [was] accredited in this matter, in no case [could] the rules violate disciplined rules of supervision of certain entities and corporations.105 In addition, the Spanish court added that “. . . laws or contractual agreements limiting certain responsibilities should prevail, so that the entities bound by these rules or contracts [complied] within the limits of such standards and agreements, notwithstanding that may recourse against other obligors.”106 In the case: [T]he current legislation [called] for a series of legal navigation requirements and assurances that the Prestige had at least as essential, but which [were] certainly insufficient to deal with as dire as those caused during the sinking of the Prestige consequences. Precisely, why they have created organisms that may get compensation tighter as with the IOPC Fund, which has some limitations of compensation agreed by and with international criteria linking many states, including the Spanish, then these constraints must be respected, not so much to prevent a dramatic disappearance of these organisms as to comply with limitations in the art 104  See, Fundamentos de Derecho (6to Fundamento), in Denuncia de delitos contra el medio ambiente y daños en espacios naturales protegidos. Buque Prestige, Audiencia provincial sección núm. 1. La Coruña (España)—12/11/2013 (Nº de Recurso: 38/2011). 105  Id. 106  Id.

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that are the essence, or, in other words, if there are regulations limiting such compensation against certain organisms, they must be respected and demand of financial liabilities not satisfied by these other agencies responsible to this limitation may not apply.107 The reason given by the Spanish tribunal to deny liability referred the relation and proportionality between the activities, the risks, and the liability.108 Regarding the responsibility of other agencies and private entities involved in the maritime activity, the Spanish tribunal declined to bring to court either to the mother companies or to turn down the existent liability fund limit. Conclusions Modern scholars oscillate their debate between ‘apology’ and ‘utopia’ regarding the materialization of the principle of CHM.109 Professor Baslar suggests that “. . . the view that the difficulty of bringing the common heritage of mankind into the corpus of international law may be surmounted by having recourse to the Grotian or eclectic philosophy.”110 In the end, “. . . the common heritage of mankind as a distinctive illustration of idealism relies on different sources like, inter alia, resolutions and declarations of international organizations, quasi-legislative acts of the United Nations and jus cogens.”111 In this context, an Opinion rather démodé was delivered by the SDC withholding strong state107  Id. 108  “It could be argued that the uniqueness of the business that took place in and through the Prestige allows your confusing management then listed as responsible legal persons of low economic power and quite unable to cope with such responsibility, which may be true and if it is can tolerate in their own field of business, it would be even possible to go to the doctrine of piercing the corporate veil to identify the real culprits.” See, Fundamentos de Derecho, in Denuncia de delitos contra el medio ambiente y daños en espacios naturales protegidos. Buque Prestige—Audiencia Provincial Sección Núm. 1. La Coruña (España)—12/11/2013 (Nº de Recurso: 38/2011). 109  “Positivists, on the one side, apologize that the traditional sources of international law do not give due credibility to the common heritage of mankind as a legal principle. Whereas, on the other side, non-positivits claim that the common heritage of mankind is an established legal principle of international law, acquiring its legal normativity from other sources such as general principles of law and even from peremptory norms.” Supra 6, at 367. 110  Id., at 368. 111  Id., at 359.

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centered criteria and upholding similar reticence against universal jurisdiction (actio popularis and locus standi) as some classical and contemporary national jurisprudence. In the end, even though an opportunity to make a sharper statement that both 1982 UNCLOS and the ITLOS are independent guardians of the security of oceans’ environment might have passed by, tendencies are promising in view of incoming academic and governmental work.

Chapter 17

The Common Heritage of Mankind: 21st Century Challenges of a Revolutionary Concept María Fernanda Millicay Introduction The United Nations Convention on the Law of the Sea1 marked a revolution not only in international law but also in the history of international relations.2 It has been said that “[i]n the history of multilateral diplomacy there has been nothing to equal the 1982 Convention in scope, sophistication and universality”.3 The Convention is unique not only in its ambition but also in some innovative concepts it introduced. One of such concepts is the common heritage of mankind. Prior to the adoption by the United Nations General Assembly of its Resolutions on the status of the Area, the seabed and the ocean floor beyond the limits of national jurisdiction, being the bottom of the high seas, were considered to be part of the high seas. Thus, the exploitation of their resources was subject to the freedom of the high seas, on a ‘first come first serve’ basis. On 1 November 1967, Ambassador Arvid Pardo of Malta made a historic statement before the First Committee of the General Assembly. That statement clearly shows that at a time of Cold War part of the international community feared that the lack of a specific legal regime applicable to that area would lead the seabed and ocean floor beyond the limits of national jurisdiction to become the scenario of the arms race. It was also feared that the seabed and ocean floor would be progressively appropriated by States and that the freedom of the high seas would only benefit the few developed countries with the necessary technology to undertake mining activities in depths of more than 3,000 meters.4 1  Hereinafter ‘UNCLOS’ or ‘the Convention’. 2  A. Pardo, “An opportunity lost”, in Law of the Sea. U.S. policy dilemma, ed. B. Oxman et al. (San Francisco: ICS Press, 1983), 14. 3  See Phillip Allot, “Mare nostrum: a new international law of the sea”, 86 American Journal of International Law (1992): 764. 4  See General Assembly Official Records (GAOR), Twenty-second Session, First Committee, 1515th and 1516th meetings (1967). © koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004283787_018

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Both the General Assembly and the negotiators of UNCLOS decided to subtract the seabed and ocean floor beyond the limits of national jurisdiction (‘the Area’) from both national appropriation and the freedom of the high seas. A new legal regime was created to put into effect the ‘common heritage of mankind’ principle with regard to the Area and its resources. That major principle provided the basis for the overall regime established in Part XI of UNCLOS and in the 1994 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982.5 The Convention also created an unprecedented international machinery, the International Seabed Authority, as the trustee of mankind.

The Common Heritage of Mankind and the Emergence of the Legal Regime of the Area

In the 1960s, it was believed that there were millions of tons of manganese nodules in the bottom of the sea, and that they could provide supplies of many industrially relevant metals to last for thousands of years at those days’ rates of consumption.6 The issue was first raised at the United Nations by Malta,7 and due to its security implications, it was allocated to the First Committee of the General Assembly. At the 1515th and 1516th meetings of the First Committee, in November 1967, Ambassador Arvid Pardo of Malta referred to the remarkable advances in technology, which made it foreseeable that the seabed and ocean floor beyond the limits of national jurisdiction8 would become progressively and competitively appropriated, as well as exploited and used for military purposes by those who possessed the required technology. He referred to the presence of manganese nodules in the sea-bottom, mainly in the Pacific and Indian Oceans and to the impact that production of those minerals from the sea-bottom could have on the national economies of mineral producer countries. The intention was to prevent a race for the seabed which could lead to the exploitation of such vast wealth for the exclusive benefit of less than a handful of nations. Malta proposed that an agency assumed jurisdiction as the trustee of all countries, and that a series of principles be incorporated into a treaty that 5  United Nations, Treaty Series, vol. 1833, No. 31363. 6  See J. Mero, “Mineral deposits in the Sea”, 1 Natural Resources Law (1968): 130. 7  Memorandum submitted by Malta. 22 GAOR. Document A/6695. 8  Arvid Pardo’s intervention made reference to the seabed and ocean floor “beyond the limits of present national jurisdiction”. Note 4 supra, para. 3.

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would rule the status and use of the seabed and ocean floor beyond national jurisdiction: the seabed and ocean floor, underlying the sea beyond the limits of national jurisdiction would not be subject to national appropriation; it would be used exclusively for peaceful purposes; there would be freedom of scientific research with results thereof available to all; the exploitation of resources would be undertaken primarily in the interest of mankind, with particular regard to the needs of poor countries; and all activities in the Area would be undertaken in a manner consistent with the principles and purposes of the Charter of the United Nations. Although the idea of ‘common heritage of mankind’ had already appeared in the works of Venezuelan jurist Andrés Bello,9 French jurist Lapradelle10 and Argentine José León Suárez,11 it was not until 1967 that declaring the seabed and ocean floor to be the ‘common heritage of mankind’ was formally put forward. The overall implications of the issue was a matter discussed at an Ad Hoc Committee of 35 States12 created by Resolution 2340 (XXII) on 18 December 1967, which was mandated to address the scientific, technical and legal aspects of the issue and the practical means to promote international co-operation in the exploration, conservation and use of the seabed and ocean floor and of the resources thereof. During its sessions in 1968,13 the Ad Hoc Committee discussed the content of the ‘common heritage of mankind principle’. The reservation of the area exclusively for peaceful purposes was described by the Chairman of the Ad Hoc Committee14 as the principle from which the exploitation of the resources of the Area for the benefit of mankind “acquires any meaning or any hope of realization”.15 The members of the Ad Hoc Committee 9  Cited by C. Armas Barea, “Patrimonio común de la humanidad: naturaleza jurídica, contenido normativo y prospectiva”, 10 Anuario IHLADI (1993): 13. 10  A. Lapradelle, “Le droit de l’Etat sur la mer territoriale”, V Revue Générale de Droit International Public (1898): 321. 11  League of Nations, Committee of Experts for the Progressive Codification of International Law (1925–1928), vol. 2, p. 17. 12  Argentina, Australia, Austria, Belgium, Brazil, Bulgaria, Canada, Ceylon, Chile, Czechoslovakia, Ecuador, El Salvador, France, Iceland, India, Italy, Japan, Kenya, Liberia, Libya, Malta, Norway, Pakistan, Peru, Poland, Romania, Senegal, Somalia, Thailand, Soviet Union, United Arab Republic, United Kingdom, Tanzania, United States and Yugoslavia. 13  The Ad-Hoc Committee worked on the basis of a Legal working group and a Technical working group. 14  Amb. Hamilton Shirley Amerasinghe of Sri Lanka. 15  United Nations. Division for Ocean Affairs and the Law of the Sea. Office of Legal Affairs. Concept of the Common Heritage of Mankind. Legislative history of Articles 133 to 150 and 311(6) of the United Nations Convention on the Law of the Sea (New York: UN, 1996), 40.

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proposed a number of principles: that the Area was a common heritage of mankind or ‘common patrimony’; the right of all States to exploration and exploitation of the seabed; exploration, use and exploitation for the benefit and in the interest of mankind, in particular for the benefit of or taking into account the interests of developing countries; that the common heritage require some kind of institutionalized machinery for supervision or regulation. Although five draft resolutions were submitted regarding the principles to govern the status and use of the seabed and ocean floor beyond the limits of national jurisdiction and their resources,16 the Ad Hoc Committee was not in a position to make recommendations on a set of principles.17 In 1969, the General Assembly, by Resolution 2467 A (XXIII), decided to turn the Ad Hoc Committe into a permanent Committee on the peaceful uses of the sea-bed and the ocean floor beyond the limits of national jurisdiction (‘the Seabed Committee’) with an enlarged membership of 42 States. It was for the Seabed Committee through its Legal Sub-Committee to continue to discuss the content of the ‘common heritage of mankind’ principle which would provide the basis for the future regime. The Report of the Seabed Committee systematized a concept present in many interventions and proposals made since the issue arose in 1967, clearly indicating that “the notion of the ‘common heritage of mankind’ would provide the basis for specific principles concerning the area; accordingly, all the rules and principles for activities in the sea-bed should be based on that notion”.18 On be basis of a draft presented by the Seabed Committee, the General Assembly adopted, on 15 December 1969, a Resolution requesting the Secretary General to consult with Members on the convenience of convening a new Conference on the law of the sea.19 The General Assembly also adopted a ‘moratorium’ on all activities of exploitation of the resources of the area of the seabed and ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction.20 The latter was prompted by the fear that some States would engage in exploitation of the 16   Mexico (A/C.1/L.430), Cyprus, Liberia and Uruguay (A/C.1/L.432/Rev.1 and Add.1), Malta, Mauritius and United Republic of Tanzania (A/C.1/L.433 and Corr.1), Liberia (A/C.1/L.434/Rev.1), and Argentina, Brazil, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, Libya, Nicaragua, Peru, Spain and Trinidad and Tobago (A/C.1/L.437 and Add.1 and 2). 17  Report of the Ad-Hoc Committee to study the peaceful uses of the seabed and the ocean floor beyond the limits of national jurisdiction. Document A/7230, para. 89. 18  Report of the Committee on the Peaceful Uses of the Sea-bed and ocean floor beyond the limits of national jurisdiction. Report 1969, Part Two, General Assembly Official Records Twenty-fifth session. 19  GA Resolution 2574 A (XXIV). 20  GA Resolution 2575 D (XXIV).

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mineral resources of the seabed and the ocean floor beyond national jurisdiction before a legal regime was internationally agreed upon. The Moratorium Resolution was adopted by two thirds of the countries voting at the General Assembly.21 Notably, many of the countries with the necessary technology to carry out activities in the Area voted against the Resolution.22 The initial work of the Seabed Committee led to the formulation of a declaration of principles applicable to the Area23 and to the emergence of agreement on the need for the establishment of a regime and on the use of the resources for the benefit of mankind taking into account the special interests and needs of developing countries. On 17 December 1970, the General Assembly noted that the “the existing legal regime of the high seas does not provide substantive rules for regulating the exploration of the (. . .) area and the exploitation of its resources”,24 and adopted the Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction (Resolution 2749 (XXV)). The principles that the General Assembly ‘solemnly declared’ were: – the seabed and ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction (the Area), as well as the resources thereof, are the common heritage of mankind, – the area shall not be subject to appropriation by any means by States or persons, and no State shall claim or exercise sovereignty or sovereign rights over any part thereof, – no State or person shall claim, exercise or acquire rights with respect to the area or its resources incompatible with the international regime to be established and the principles of the Declaration, – all activities regarding the exploration and exploitation of the resources of the area and other related activities shall be governed by the international regime to be established, – the area shall be open to use exclusively for peaceful purposes by all States, whether coastal or land-locked, without discrimination, in accordance with the international regime to be established,

21  62 votes in favor, 28 against, and 28 abstentions. 22  See U.N. General Assembly voting records. 23  Report of the Committee on the Peaceful uses of the Sea-Bed and the ocean floor beyond the limits of national jurisdiction. 24 GAOR Doc. A/7622 (Supp. No. 22), para. 93. 24  GA Resolution 2749 (XXV), third preambular paragraph.

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– states shall act in the area in accordance with the applicable principles and rules of international law, including the Charter of the United Nations and the Declaration of Principles of International Law concerning Friendly Relations and Co-operation among States,25 – the exploration of the area and the exploitation of its resources shall be carried out for the benefit of mankind as a whole, irrespective of the geographical location of States, whether land-locked or coastal, and taking into particular consideration the interests and needs of the developing countries, – States shall promote international co-operation in scientific research exclusively for peaceful purposes. Resolution 2749 (XXV) set the pillars for the future negotiations on the regime applicable to the seabed and ocean floor beyond the limits of national jurisdiction, including for the creation of an international machinery. Moreover, the overwhelming support by which this resolution was adopted26 strengthened the status of the previous ‘Moratorium Resolution’. Also, the wide support of Members States of the United Nations for a universal conference led the General Assembly to convening in 1973 the Third United Nations Conference on the Law of the Sea.27 The Conference would consider not only the question of the regime for the Area but also ‘a broad range of related issues’,28 including issues relating to the traditional law of the sea and some new ones. The Seabed Committee, now mandated to prepare the Conference, worked between 1971 and 197329 on the basis of three sub-Committees. The First subcommittee was responsible for the draft articles on the international regime for the area and on the structure of the international machinery. The Committee considered proposals made by States, reports of the Secretary General, the four 1958 Geneva Conventions, relevant decisions of the International Court of Justice and the Declaration of Principles embodied in Resolution 2749 (XXV).30 An important part of the historical background that served as a framework to the negotiations on the law of the sea in general and on the legal regime 25  GA Resolution 2625 (XXV) of 24 October 1970. 26  108 votes in favor, none against and 14 abstentions. 27  Resolution 2750 C (XXV). 28  Resolution 2750 C (XXV), operative paragraph 2. 29  The Seabed Committee met three times in 1971, twice in 1972 and twice in 1973. 30  See J. Stevenson, et. al. “The preparations for the Law of the Sea Conference”. 68 American Journal of International Law (1974).

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applicable to the Area in particular should also be mentioned. In 1964, closely related to the United Nations Conference on Trade and Development, the group of developing countries named ‘G77’ was established.31 In parallel, in 1973, the proposal for a new international economic order (‘NIEO’)32 was put forth by the members of the Non Aligned Movement at the Algiers Summit. At that summit, they addressed the issue of deterioration in the economic conditions in the developing countries and stressed the need to enhance economic cooperation, and called for a revision of the global economic regime and the creation of a NIEO that would be more advantageous to the developing countries of the South. That movement had its reflection also at the United Nations when the General Assembly adopted the Declaration and the Programme of Action on the New International Economic Order,33 and to the Charter of Economic Rights and Duties of States.34 The Declaration of Principles contained in GA Resolution 2749 (XXV) was in line with that ideology, so the law of the sea represented for developing countries the first opportunity to incorporate 31  Joint Declaration of the Seventy-seven developing countries made at the conclusion of the United Nations Conference on Trade and Development. Geneva, 15 June 1964. To date, the Members of the Group, now named “G77 and China” are 133. For further reading see A. Adede, “The Group of 77 and the establishment of the International Sea-Bed Authority”. 7 Ocean Development and International Law (1979): 31. For information about the Group see L. Swart, et al., “The Group of 77: perspective on its role in the UN General Assembly”. (New York: Center for UN Reform Education, 2010), and www.g77.org. 32  For further reading on the NIEO see A. Rozental, “The Charter of Economic Rights and Duties of States and the New International Economic Order”, 16 Virginia Journal of International Law (1975–1976); C. Ferguson, “The Politics of the New International Economic Order”, Proceedings of the Academy of Political Science, Vol. 32, No. 4 (1977), 142–158; G. Haight, “The New International Economic Order and the Charter of Economic Rights and Duties of States”, 9 International Lawyer (1975): 591; T. Walde, “A requiem for the ‘New international economic order. The rise and fall of paradigms in international economic law”, in International legal issues arising under the United Nations decade of international law. Kluwer Law International (The Hague: Martinus Nihjoff, 1995); E. Mann-Borgese, “The New International Economic Order and the Law of the Sea”, 14 San Diego Law Review (1976–1977), 584; J.N. Moore, “Law of the Sea and the New International Economic Order”. 3 Public Law Forum (1984–1984), 13; J. Gamble, “The Third United Nations Conference on the Law of the Sea and the New International Economic Order”, Loyola of Los Angeles International and Comparative Law Review (1983), 65; A. Vratusa, “Convention on the Law of the Sea in the light of the struggle for the New International Economic Order”, in Essays on the New Law of the Sea, ed. B. Vukas (Zagreb: University of Zagreb, 1985). 33  UNGA Resolutions 3201 (S-VI) and 3202 (s-vi). 34  UNGA Resolution 3281 (XXIX).

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the principles of the NIEO into positive international law. UNCLOS was the first negotiation of an international instrument for the G77 as a group. Due to diversity of interests of its members regarding other aspects of the negotiation, it was the regime for the Area the issue on which a North-South divide was evidenced, and it catalysed the new ideology of the NIEO due to the coordinated action of a group composed by developing countries. Another historic element to be taken into consideration is the Declaration of the United Nations Conference on the Human Environment (“Stockholm Declaration”—1972), which raised awareness on the need to include into positive international law norms on the protection and preservation of the marine environment. While the First United Nations Conference on the Law of the Sea (1958) had counted on preparatory work by the International Law Commission, including draft texts, the mandate of the Seabed Committee did not include the preparation of a draft convention.35 After three sessions of negotiations, the Third UN Conference on the Law of the Sea decided that the Chair of the Conference and the chairs of the three Main Committees would prepare an Informal Composite Negotiating Text36 (ICNT) which brought together in one document all the drafts.37 Despite being an informal document, the consolidation in the ICNT meant an important progress towards the elaboration of a comprehensive international regime for the law of the sea.38 The United States and other developed countries reacted negatively to Part XI of the ICNT, and the House of Representatives of the United States passed a bill “to promote the rderly development of hard mineral resources in the deep seabed, pending adoption of an international regime relating thereto”.39 The enactment of unilateral legislation led to the reaction of the G77, which made several statements against them during the following sessions.40

35  See M. Nordquist, ed., United Nations Convention on the Law of the Sea 1982. A commentary, vol 1. (Dordrecht/Boston/Lancaster: Martinus Nijhoff Publishers, 1985). 36  A/CONF.62/WP.10. 37  See “Informal Composite Negotiating Text”. Explanatory memorandum by the President. A/CONF.62/WP.10 Add.1. 38  See B. Zuleta, “Introduction to the United Nations Convention on the Law of the Sea”. Statement reproduced by Myron H. Nordquist, op. cit. 39  HR 3350, 95th Cong. 2d. sess. (1978) July 26, 1978. 40  See for example Letter dated 23 August 1979 from the Chairman of the Group of 77 to the President of the Conference, document A/CONF.62/89; and Letter dated 29 August 1980 from the Chairman of the Group of 77 to the President of the Conference, document A/ CONF.62/106.

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In January 1981, the newly elected administration of the United States took office, and two months later, the United States instructed its delegation at the Conference “to seek to ensure that the negotiations do not end (. . .) pending a policy review by the United States Government”.41 The need for revision by the United States focused on Part XI. It was too late. That same year, after sessions of informal documents, an ‘official’ Draft Convention42 was prepared. On 30 April 1982, the Convention was adopted by vote.43 The Convention, opened for signature in Montego Bay, Jamaica, was immediately signed by 119 States. Until the period for signature expired, on 9 December 1984, 155 States and 4 entities44 had signed it. Several developed countries, including the United States, Italy, the United Kingdom and Germany did not sign the Convention due to dissatisfaction with the regime for the Area contained in Part XI. In accordance with Resolution I of the III Conference, a Preparatory Commission (‘PrepCom’) was established, to start working before the entry into force of the Convention, and functioned from 1983 in Jamaica with the aim of taking all necessary measures to ensure the entry into effective operation of the Authority and the International Tribunal for the Law of the Sea.45 The PrepCom also devoted itself to the ‘pioneer activities’ as defined in Resolution II of the Third Conference, which provided that those countries and mining consortia that had made significant investments in the surveillance of polymetallic nodules before the entry into force of UNCLOS would be treated as ‘pioneer investors’ with exclusive rights for carrying out exploration activities in areas allocated to them. Seven pioneer investors registered under the rules adopted by the Conference were given that status.46 41  See B. Oxman, “The Third United Nations Conference on the Law of the Sea: The Tenth Session (1981)”. 76 American Journal of International Law (1982). 42  A/CONF.62/L.78. 43  130 votes in favor, 4 against and 18 abstentions. 44  For the provisions on signature by “entities” see Article 305 of UNCLOS. 45  Resolution I of the Third United Nations Conference on the Law of the Sea. 46  The Government of India, registered on 17 August 1987 (LOS/PCN/94 and LOS/PCN/ 94/Corr.1); L’Institut Français de Recherche pour l’Exploitation de la Mer (IFREMER)/ l’Association Française pour l’Etude et la Recherche de Nodules (AFERNOD) (France), registered on 17 December 1987 (LOS/PCN/97); Deep Ocean Resources Development Co., Ltd. (DORD) (Japan), registered on 17 December 1987 (LOS/PCN/98); YUZHMORGEOLOGIYA (Russian Federation), registered on 17 December 1987 (LOS/ PCN/99), the China Ocean Mineral Resources Research and Development Association (COMRA) (People’s Republic of China), registered on 5 March 1991 (LOS/PCN/117); the Interoceanmetal Joint Organization (IOM) (Republic of Bulgaria, Republic of Cuba, Czech Republic, Republic of Poland, Russian Federation and Slovak Republic),

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It was not until 1989 that the problems that Part XI posed to several developed countries were generally admitted.47 In July 1990, the Secretary General of the United Nations Javier Pérez de Cuéllar started informal consultations in order to solve the issues that prevented the universal acceptance of the Convention. One of the issues noted by the Secretary General was that since the adoption of the Convention, important political and economic changes had taken place at a global level, including the prevalence of a clearly oriented market economy. The informal consultations, which were continued by the next Secretary General, Boutros Boutros-Ghali, took place from 1990 to 1994. The consultations identified nine issues of difficulty: the costs to States parties, the Enterprise, decision-making at the Authority, the Review Conference, the transfer of technology, production limitation, the compensation fund, the financial terms of contracts, and environmental considerations. Those were the issues regarding which the ‘Implementing Agreement’ would in fact amend UNCLOS. The general view during the consultations was that an instrument of a binding nature should be sought but that at the same time the unity of the regime should be preserved, and it was agreed that the provisions of the Agreement and Part XI should be interpreted and applied together as a single instrument48 and that after the adoption of the Agreement, any instrument of ratification or formal confirmation of or accession to the Convention should also represent consent to be bound by the Agreement.49 At a resumed forty-eighth session, the General Assembly adopted, through Resolution 48/263, the Implementation Agreement, which entered into force on 28 July 1996.

The Common Heritage of Mankind Principle and the Regime of Part XI and the 1994 Agreement

Part XI of the Convention, complemented by the 1994 Agreement, provides the legal regime applicable to the Area and to the exploration and exploitation of its resources. registered on 21 August 1991 (LOS/PCN/122); the Government of the Republic of Korea, registered on 2 August 1994 (LOS/PCN/L.115/Rev.1 and Corr.1). See also Resolution II of the Third United Nations Conference on the Law of the Sea. 47  See R. Platzöder, “Substantive changes in a multilateral treaty before its entry into force: the case of the 1982 United Nations Convention on the Law of the Sea”. 4 European Journal of International Law, 390 (1993). 48  1994 Agreement, Article 2 ‘Relationship between this Agreement and Part XI’. 49  1994 Agreement, Article 3 ‘Consent to be bound’.

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Following the terms of General Assembly Resolution 2749 (XXV), UNCLOS defined the Area as ‘the seabed and oceans floor and subsoil thereof, beyond the limits of national jurisdiction’.50 Although the Seabed Committee had received proposals for defining the limits of the Area, at the Third Conference it became clear that the limits of the Area, and therefore the geographical extension of the common heritage of mankind, would be dependent upon ‘the limits of national jurisdiction’, i.e. another major issue being negotiated in the Conference: the outer limit of the continental shelf. Article 134 of the Convention, by making express reference to Part VI, makes it clear that the limits of the Area are determined by the limits of the continental shelves of coastal States. Naturally, also the ‘principles governing the Area’ contained in Section of Part XI follow the terms of General Assembly Resolution 2749 (XXV). It could have not been otherwise, as the Convention states, in its Preamble, that the States Parties desired by this Convention to develop the principles embodied in resolution 2749 (XXV) of 17 December 1970 in which the General Assembly of the United Nations solemnly declared inter alia that the area of the seabed and ocean floor and the subsoil thereof, beyond the limits of national jurisdiction, as well as its resources, are the common heritage of mankind, the exploration and exploitation of which shall be carried out for the benefit of mankind as a whole, irrespective of the geographical location of States.51 The principle leading all others is that ‘the Area and its resources are the common heritage of mankind’.52 Consequently, no State can claim or exercise sovereignty or sovereign rights over any part of the Area or its resources, not can States or persons appropriate any part thereof, and no State or person can claim, acquire or exercise rights with respect of minerals of the Area except in accordance with Part XI;53 all rights regarding resources of the Area are vested 50  UNCLOS, Article 1 ‘Use of terms and scope’, subpara. (1). It is worth recalling that the Convention safeguarded the legal regime of the superjacent water column, when providing in Article 135 that “[n]either this Part nor any rights granted or exercised pursuant theretoshall affect the legal status of the waters superjacent to the Area or that of the air space above those waters”. 51  UNCLOS, Preamble, fifth paragraph. 52  UNCLOS, Article 136 ‘Common heritage of mankind’. 53  UNCLOS, Article 137 ‘Legal status of the Area and its resources’, paras. 1 and 3.

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in mankind as a whole on whose behalf the Authority acts.54 The benefit of mankind is contained in Article 140, which also establishes that the Authority will provide for the equitable sharing of financial and other economic benefits derived from activities in the Area through appropriate mechanisms to be agreed upon by the Authority.55 Also, the Area and its resources shall be used exclusively for peaceful purposes,56 and marine scientific research in the Area shall be carried out exclusively for peaceful purposes and for the benefit of mankind as a whole.57 Although Part XIV of the Convention refers to the transfer of marine technology, Part XI contains specific provisions on how the Authority is expected to promote the transfer of marine technology to developing countries and to the Enterprise,58 the organ through which the Seabed Authority can carry out activities in the Area.59 One aspect in which UNCLOS shows a partial difference with regard to the language of General Assembly Resolution 2749 (XXV) is the scope of ‘the resources of the Area’. This aspect was to become highly relevant in the context of the current issue of the conservation and sustainable of biological communities of the Area. The resolution solemnly declared that the Area and its resources are the common heritage of mankind, without any limitation as to the scope of ‘resources’. Article 133(a) of UNCLOS has a more limited definition of ‘resources of the Area’. Such term had not been specifically defined in the different proposals for the regime of the Area until the third session (1975),60 when the ISNT proposed to define ‘resources’ as ‘resources in situ’.61 At same session, following a proposal made by the United States, the definition considered and finally included in UNCLOS was that ‘resources’ would mean ‘mineral resources in situ’.62 Article 133 of the Convention gives the following definition “‘resources’ means all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed, including polymetallic nodules”. The regime of the Area, therefore, provides a system for the exploration and exploitation of mineral resources. Having the common heritage of mankind as its basis, the regime contains rules that are quite unique in the law of the sea. 54  UNCLOS, Article 137, para. 2. 55  See also para. 160 (f)(i) of UNCLOS. 56  UNCLOS, Article 141 ‘Use of the Area exclusively for peaceful purposes’. 57  UNCLOS, Article 143 ‘Marine scientific research’. 58  UNCLOS, Article 144 ‘Transfer of marine technology’. 59  See UNCLOS, Article 170. 60  See S. Nandan, et al. United Nations Convention on the Law of the Sea 1982. A commentary, vol. VI. (New York: UN, 1982), 71–72. 61  Document A/CONF.62/WP.8/Part I. 62  See S. Nandan, et al. op. cit., 73–75.

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The system for exploration and exploitation requires from States not only a general conduct adjusted to Part XI, to the principles of the United Nations Charter and to other rules of international law,63 but also requires that companies willing to engage in activities in the Area are sponsored by their States of nationality.64 The sponsoring State has the responsibility to ensure that the sponsored contractor carries out activities in the Area in conformity with the terms of its contract and its obligations under the Convention.65 A sponsoring State is therefore expected to take all ‘due diligence’ measures to ensure compliance by the contractor, otherwise the State itself could be liable for damage caused by the contractor.66 Very importantly, the Convention gave the Authority, through its organs, the power to adopt rules, regulations and procedures in accordance with the provisions of the Convention, such as those for prospecting, exploration and exploitation in the Area,67 and to ensure effective protection for the marine environment from harmful effects which may arise from such activities.68 The principle of the common heritage of mankind was assumed to be part of the provisions of the Convention even if it were to be amended in the future. The Convention contains provisions for its amendment, including a specific regime for amendments to the provisions of the Convention relating exclusively to the activities in the Area, which requires the intervention of the organs of the Authority.69 UNCLOS reflects the agreement of States Parties to protect the common heritage of mankind principle from possible future amendments. Article 311 (2) of the Convention provides that two or more States Parties may conclude agreements modifying or suspending the operation of provisions of the Convention solely in their relations, provided that such agreements do not refer to a provision from which derogation would be incompatible with the effective execution of the object and purpose of the Convention, and also provided further that such agreements “shall not affect the application of the basic principles 63  UNCLOS, Article 138 ‘General conduct of States in relation to the Area’. 64  UNCLOS, Article 153 ‘System of exploration and exploitation’ and Annex III ‘Basic conditions of prospecting, exploration and exploitation’. 65  UNCLOS, Article 139 ‘Responsibility to ensure compliance and liability. 66  See Advisory Opinion of the International Tribunal for the Law of the Sea, Case No. 17 ‘Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area’, 11 February 2011. 67  UNCLOS, Article 162 as amended by the Agreement, Annex, Section 1, paras. 15 and 16. 68  UNCLOS, Article 145. 69  UNCLOS, Article 314.

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embodied therein”, That provision is applicable to all the basic principles of each Part of UNCLOS. But there is a specific safeguard to the common heritage of mankind principle. According to Article 311 (6), “States Parties agree that there shall be no amendments to the basic principle relating to the common heritage of mankind set forth in article 136 and that they shall not be party to any agreement in derogation thereof”. This provision raised some discussion on whether it provides for a rule of jus cogens (peremptory norm). The provision was included in the draft Convention following a proposal made by the delegation of Chile, which proposed that the basic principle of the common heritage of mankind should be recognized as a norm of ‘jus cogens’. The proposal made by Chile indicated that [t]he States Parties to the present Convention accept and recognize on behalf of the international community as a whole that the provision relating to the common heritage of mankind set out in article 136 is a peremptory norm of general international law from which no derogation is permitted and which, consequently, can be modified only by a subsequent norm of general international law having the same character.70 That formulation of the proposal was difficult to accept by some delegations, and it was re-submitted in 1980. At that time, there was some difficulty with the wording although there was strong general support for safeguarding the principle. The language contained in text of paragraph 6 of Article 31171 is clear in the intention to maintain the fundamental nature of the common heritage of mankind principle within the structure of the Convention.

Functioning of the International Seabed Authority

The Authority is one of the three organizations created by UNCLOS,72 and the only one of an intergovernmental nature. The Authority is the organization through which States Parties to the Convention shall, in accordance with the regime for the seabed and ocean floor and subsoil thereof beyond the limits 70  Eigth Session, Part II. Informal proposal by Chile, FC/14 of 20 August 1979. 71  See “Preliminary Report of the President on the Work of the Informal Plenary Meeting of the Conference on Proposals for General Provisions”, A/CONF.62/L.53, 29 March 1980. 72  The other two are the International Tribunal for the Law of the Sea (ITLOS) and the Commission on the Limits of the Continental Shelf (CLCS).

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of national jurisdiction (the Area) established in Part XI and the Agreement, organize and control activities in the Area, particularly with a view to administering its resources. It came into existence on 16 November 1994, upon the entry into force of the Convention, and it became fully operational as an autonomous international organization in June 1996. It has three organs: the Council, the Assembly and the Secretariat. The Council is the executive organ of the Authority, and its composition reflects the need to find a balance of interests regarding the potential production of the categories of minerals of the Area and its possible economic impacts. It is composed by the following States Parties: the four major consumers or major importers73 of the categories of minerals to be derived from the Area—provided that the four include the Easter European State with the largest economy—; four members from among the States Parties which have made the largest investments in preparation for and in the conduct of activities in the Area, either directly or through their nationals; four members from among States Parties which, on the basis of production in areas under their jurisdiction, are major net exporters of the categories of minerals to be derived from the Area—including at least two developing States whose exports of such minerals have a substantial bearing upon their economies—; six members from among developing States Parties, representing special interests—the ‘special interests’ include those of States with large populations, States which are land— locked or geographically disadvantaged, island States, States which are major importers of the categories of minerals to be derived from the Area, and States which are potential producers for such minerals and least developed States—; and eighteen members elected according to the principle of ensuring an equitable geographical distribution of seats in the Council as a whole.74 The Council has the function of adopting policies in accordance with the Convention and the general policies determined by the Assembly. The Council, with the guidance of the Legal and Technical Commission, its subsidiary body, draws up regulations for prospecting, exploration and exploitation of the different categories of minerals to be adopted by the Assembly, adopts environmental regulations and standards in accordance with article 145 of the 73  Those that have consumed more than 2 per cent in value terms of total world consumption or have had net imports of more than 2 per cent in value terms of total world imports of the commodities produced from the categories of minerals to be derived from the Area during the last 5 years for which statistics are available. 74  For the current composition of the Council see http://isa.org.jm/en/about/members/ council/composition.

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Convention, approves in the form of contacts the plans of work for State and private entities to carry out activities in the Area. Also, in cases of an environmental arising from seabed activities, the Council can issue emergency orders to prevent harm to the marine environment, including the suspension or adjustment of operations.75 The Assembly is the plenary organ of the Authority, and as such is responsible for establishing the general policies for activities in the Area. It is composed by all Parties to the Law of the Sea Convention, which currently are 166. The Assembly also elects the Members of the Council and other bodies and the Secretary-General, in charge of the Secretariat of the Authority. Following recommendation by the Council, the assembly approves the rules, regulations and procedures of the Authority for prospecting, exploration and exploitation in the Area. After its establishment in 1996, the International Seabed Authority devoted itself to the development of rules and regulations for prospecting and exploration of polymetallic nodules. Priority in the work related to this category of resources is provided for in the Convention.76 The ‘Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area’ (known as ‘the Mining Code’), were adopted in July 2000.77 Consequently, between 2001 and 2002, the Authority entered into 15-year contracts with the seven pioneer investors registered under resolution II of the Third Conference.78 After the adoption of the Mining Code, the ISA devoted itself to the consideration of the rules and regulations applicable to activities related to other categories of resources of the area, i.e. hydrothermal polymetallic sulphides and cobalt-rich

75  See ‘Emergency orders’ in Rule 33 of the Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area, in Rule 35 of the Regulations on prospecting and exploration for polymetallic sulphides in the Area and in Rule 35 of the Regulations on Prospecting and Exploration for Cobalt-rich Ferromanganese Crusts in the Area. 76  UNCLOS. Article 162.2 (o) (ii). 77  Document ISBA/6/A/18. 78  The Government of India, L’Institut Français de Recherche pour l’Exploitation de la Mer. (IFREMER)/l’Association Française pour l’Etude et la Recherche de Nodules (AFERNOD) (France), Deep Ocean Resources Development Co., Ltd. (DORD) (Japan), YUZHMORGEOLOGIYA (Russian Federation), the China Ocean Mineral Resources Research and Development Association (COMRA) (People’s Republic of China), the Interoceanmetal Joint Organization (IOM) (Republic of Bulgaria, Republic of Cuba, Czech Republic, Republic of Poland, Russian Federation and Slovak Republic), the Government of the Republic of Korea.

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ferromanganese crusts,79 but it also considered amendments to the Mining Code, with a view to enhancing the rules on the protection and preservation of the marine environment during prospecting. In November 2010, the Assembly adopted the ‘Regulations on prospecting and exploration for polymetallic sulphides in the Area’,80 and in October 2012, it adopted the ‘Regulations on Prospecting and Exploration for Cobalt-rich Ferromanganese Crusts in the Area’.81 The amendments to the Mining Code were adopted in July 2013.82 The ISBA is currently at a very initial stage of its consideration of the issue of the development of rules for exploitation of polymetallic nodules.

The New Challenge: Deep Seabed Biological Communities

When the negotiations of the regime for the Area started, it was generally assumed that the bottom of the sea under the high seas was rich only in mineral resources, as the absence of light at the sea bottom led to the conclusion that photosynthesis was not possible. Discoveries that took place from the late 1970s have evidenced the existence of microbes and animals that live in the sea bottom, whose life is based on a different process, called chemosynthesis. Deep-sea hydrothermal vents were discovered in 1977. Hydrothermal vents are found in the mid-ocean ridges and also at convergent plate boundaries where the outer layer subdues under the abutting continental landmass forming submarine trenches. The vents are formed through a process that starts with the inflow of sea water into fractures of the sea-bottom. That cold water reaches the underlying layers of magma, and then—again through fractures of the sea-bottom—comes back to the seabed as boiling water enriched by the minerals from the rock, which precipitate when in contact with cold water, forming ‘chimneys’ or vents. The result of this process is the production of chemical energy from the inner layers of the earth that is used by certain biological organisms. Instead of photosynthesis, hydrothermal vent ecosystems live of chemosynthesis, a process that uses energy from chemical oxidations to produce organic matter from CO2 and mineral nutrients. Thanks to this process, vents have high concentrations of biomass. The biological communities 79  See Report of the Secretary-General of the International Seabed Authority under article 166, paragraph 4, of the United Nations Convention on the Law of the Sea. Document ISA/8/A/5, para. 34. 80  Document ISBA/16/A/12/Rev.1. 81  Document ISBA/18/A/11. 82  Documents ISBA/19/C/17 and ISBA/19/A/9.

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that inhabit the vents, in particular the chemosynthetic organisms, are at the base of the food chain of a diverse and rich ecosystem. Consumers within the vent community which depend exclusively on these primary producers are endosymbiotic tubeworms, vesicomyd clams, shrimps and mussels. At present, around five hundred species have been discovered.83 The major part of those species is highly endemic, and therefore cannot be found anywhere else. Therefore, the biological communities vary between vent sites and regions. Some species are common to more than one site while some have—so far— only been found on one site. The micro fauna and bacteria of the deep seabed are called ‘extremophiles’ or ‘hyperthermophiles’, as they live in conditions of darkness, extremely high temperatures and pressure, which has made them resistant to heat and pressure. Therefore, there is increasing interest from the scientific community, biotechnology and pharmaceutical companies for searching species which produce beneficial substances and genes which could potentially be used for pharmaceutical or industrial processes.84 Genetic resources, i.e. any material of plant, animal, microbial or other origin containing functional units of heredity of actual or potential value, are components of biodiversity85 and the basic raw material for the production of food, pharmaceuticals, seeds, cosmetics, among others. Access to such resources and exclusive appropriation by means of intellectual property rights have global economic and social implications. The main commercial interest in the seabed biodiversity, in particular that of the hydrothermal vents, is its exploitation through biotechnology,86 i.e. the development of products from derivatives of thermophiles or hyperthermophiles of hydrothermal vents.87 According to some estimations, the potential market for industrial uses of these microorganisms could be of USD 3 billion

83  See S. Arico, et al., Bioprospecting of Genetic Resources in the Deep Seabed: Scientific, Legal and Policy Aspects. (Yokohama: UNU-IAS, 2005). 84  E. Mann-Borgese, “The Common Heritage of Mankind: from non-living to living resources and beyond”, in N. Ando, et.al. Liber amicorum Judge Shigeru Oda, vol. 2 (The Hague/ London/New York: Kluwer Law International, 2002). 85  See Convention on Biological Diversity. Article 2. 86  See L. Glowka, “The deepest of ironies: Genetic resources, marine scientific research and the Area”, 12 Ocean Yearbook (1996), 154. 87  See D.K. Leary, “Bioprospecting and the genetic resources of hydrothermal vents on the high seas: what is the existing legal position, where are we heading and what are our options?”, Macquarie Journal of International and Comparative Environmental Law, Vol. 1 (2004), 137.

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a year.88 Many scientific research institutions are conducting marine scientific research in relation to hydrothermal vents; and there are several examples of this kind of institutions collaborating with the industry.89 Although the biodiversity of the deep seabed has hardly been explored,90 it must be mentioned that several deep seabed organisms have already been used for commercial applications and therefore patented.91 The enormous potential represented by biodiversity shows the use of biological organisms of the Area is the most immediate and lucrative activity of exploitation of the resources of the Area.92 Human activity regarding the organisms of the deep seabed also entails environmental impacts. Once they start, deep seabed mining activities will represent a threat to biodiversity associated with those formations,93 as they imply disturbance to living organisms or even the removal of those that are attached to mineral deposits. Mining for polymetallic sulphide deposits poses a great potential physical threat to biological communities of the vents, as it may imply physical damage to the vents.94 As regards vent and other deep seabed communities, the most immediate threat may be marine scientific research, as many research activities have sampling of macro and micro-organisms as their primary goal, and sampling could cause adverse impacts on the communities involved.95 Effects of biological and geological sampling operations on 88  See M. Gorina-Ysern, “Legal issues raised by the profitable biotechnology development through marine scientific research”, ASIL Insights, November (2003); L. Glowka, “Beyond the deepest of ironies: genetic resources, marine scientific research and international seabed Area”, in J.P. Beurier, et al. “New Technologies and law of the marine environment” (The Hague/London/Boston: Kluwer Law International, 2000). 89  See D. Leary, op. cit., Businessweek 1 April 1996 “Extreme enzymes. Science is commercializing nature’s diehard proteins”, and M. Gorina-Ysern, “Marine scientific research activities as the legal basis for intellectual property claims?”, 22 Marine Policy (1998), 337. 90  See L. Glowka, “Genetic resources, marine scientific research and the International Seabed Area”, 8 Review of European Community and International Environmental Law (1999), 56. 91  S. Arico, et al., op. cit., 19–20, L. Glowka, op. cit. 92  See L. Glowka, op. cit. For additional information about uses and existing patents see F. Millicay, “A legal regime for the biodiversity of the Area”, in Law, science and ocean management, ed. M. Nordquist, et al. (Leiden: Brill, 2007). 93  See Report of the Secretary General. Oceans and the Law of the Sea, Addendum (Document A/59/62/Add.1), paras. 227–231. 94  Idem note 63 supra. 95  See L. Gowka, “Testing the waters: establishing the legal basis to conserve and sustainably use hydrothermal vents and their biological communities”, 8 Inter Ridge News (1999), 45.

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vent faunal communities have already been documented.96 Another negative impact is that of bottom trawling on biological communities of seamounts and other underwater formations.97 The living resources of the seabed and ocean floor beyond national jurisdiction are inextricably linked to the seabed, and can be seen as representing to the Area what the sedentary species are to the continental shelf. They gave rise to an important current legal and political discussion. Part XI of the Convention and the provisions of the 1994 Agreement provide a comprehensive regime for the activities in the Area, as defined Article 1(1)(3). Nevertheless, the Convention presents a legal challenge: the definition of ‘resources of the Area’ provided in Article 133(a) of the Convention is limited to ‘mineral resources’. Consequently, the whole system of exploration and exploitation was designed for mineral resources. This has led to diverging positions that re-edited the North-South divide. Some developed countries have argued that due to the lack of specific provisions of Part XI, and in particular in light of the definition of ‘resources’ given by Article 133, biological resources beyond national jurisdiction, including those of the seabed and ocean floor, are subject to the “first come first serve” rule of the high seas. Conversely, developing countries argue the principle of the common heritage of mankind applies to the biological resources of the Area. Their interpretation is that notwithstanding the limited definition of ‘resources’, both the General Assembly and UNCLOS provide that “the Area and its resources are the common heritage of mankind;” therefore, as in the structure of UNCLOS the legal regime of each maritime area is applicable to the resources thereof on the basis of geographical appurtenance, it is not acceptable that the Area itself is the common heritage of mankind and some of its resources follow that legal nature while some others do not. They have another strong argument, which relates to marine scientific research. While according to Articles 87 and 257, marine scientific research is one of the freedoms of the high seas, marine scientific research in the Area must be carried out ‘for the benefit of mankind as a whole’;98 they thus argue that if marine scientific research in the Area—including MSR on biological organisms—is to benefit mankind, it would not be reasonable to adopt the

96  UNEP/CBD/SBSTTA/8/INF/3/Rev.1, paras. 4–5. 97  See S. Maxwell, “Medicines from the deep. The Importance of Protecting the High Seas from Bottom Trawling”, Natural Resources Defense Council (March 2005). 98  See UNCLOS, Article 143 ‘Marine scientific research’ and Article 256 ‘Marine scientific research in the Area’.

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‘first-come-first-serve’ rule of the high seas for the exploration and exploitation of the same organisms. In 2006, the Ad Hoc Open Ended Working Group established by UN General Assembly resolution 59/24, initiated its consideration of the issue ‘conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction’. The General Assembly decided to include in the sphere of competence of the Working Group the biodiversity of two maritime areas with two distinct legal regimes. Little progress was made during the first years, as the above-mentioned discussion on the legal regime dominated the scene. But in 2011, the Working Group recommended that “a process be initiated, by the General Assembly, with a view to ensuring that the legal framework for the conservation and sustainable use” of marine biodiversity of areas beyond national jurisdiction “effectively addresses those issues by identifying gaps and ways forward, including through the implementation of existing instruments and the possible development of a multilateral agreement under the United Nations Convention on the Law of the Sea”.99 The Working Group also recommended that the process would address the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction, in particular, together and as a whole, marine genetic resources, including questions on the sharing of benefits, measures such as area-based management tools, including marine protected areas, and environmental impact assessments, capacity-building and the transfer of marine technology.100 This was the first step in a currently evolving process, which began due to the convergence of two major groups, the G77 and China and the European Union on the need of initiating a meaningful process of consideration of the issue. Although their respective interests were not necessarily opposed, they were not necessarily concurrent either. Whereas the G77 and China emphasized the need to ensure the sharing of benefits arising from the exploitation of biological resources—in particular genetic resources—favouring the application of the common heritage of mankind principle, the EU favoured the negotiation of a regime for the establishment of area-based management tools, in particular marine protected areas (MPAs). 99  Letter dated 30 June 2011 from the Co-Chairs of the Ad Hoc Open-ended Informal Working Group to the President of the General Assembly (A /66/119), para. 1.a). 100  Idem note 68 supra, para. 1.b).

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The two groups then came to an agreement on how the issue will be dealt with: as a package, as when UNCLOS was negotiated. Although the expression ‘package’ was not accepted by some as a part of a formal document, the expression ‘together and as a whole’ intends to reflect that agreement. The elements of the package are also important, namely conservation—meaning a regime for the lawful establishment of measures, including MPAs—; sustainable use—meaning exploitation of biological resources, including taking into account intellectual property rights as regards microorganisms—; capacitybuilding; and the transfer of marine technology, included in the package due to the concern of developing countries over the high need of adequate technology to undertake activities regarding biological communities of areas beyond national jurisdiction and over the fact that Part XIV is the Part of UNCLOS regarding which there is the biggest gap in implementation. Although the position of the majority of delegations favoured the initiation of a process that would lead to the negotiation of an ‘implementing agreement’ to UNCLOS, the reluctance of a few developed countries led to the ad hoc expression ‘a multilateral agreement under the United Nations Convention on the Law of the Sea’. Also their reluctance led to the inclusion of the reference to ‘the implementation of existing instruments’. The General Assembly endorsed those recommendations and decided to initiate such process by providing the Ad Hoc Working Group with a new mandate, as defined in its Recommendations.101 The second meeting of the Ad Hoc Working Group preceded the Rio United Nations Conference on Sustainable Development (UNCSD known as ‘Rio plus 20’, Rio de Janeiro, June 2012) and decided that two workshops would take place to address ‘marine genetic resources’—including meaning and scope, extent and types of research, uses and applications, technological, environmental, social and economic aspects, access—related issues, types of benefits and benefit sharing, intellectual property rights issues and global and regional regimes on genetic resources, experiences and best practices, impacts and challenges to marine biodiversity beyond areas of national jurisdiction, and exchange of information on research programmes regarding marine biodiversity in areas beyond national jurisdiction; and ‘conservation and management tools, including area-based management and environmental impact assessments’, this included types of area-based management tools, key ecosystem functions and processes in areas beyond national jurisdiction, assessments of sectoral and cumulative impacts, technological, environmental, 101  General Assembly resolution 66/231 (the Recommendations of the Ad Hoc Working Group are annexed to the resolution).

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social and economic aspects, existing regimes, experiences and best practices, new and emerging uses of, and experimental activities in, areas beyond national jurisdiction, impacts and challenges to marine biodiversity beyond areas of national jurisdiction and exchange of information on research programmes regarding marine biodiversity in areas beyond national jurisdiction.102 The workshops took place in May 2013.103 A notable political impetus was given by the commitment of Rio plus 20, in June 2012, when Members of the United Nations “building on the work of the Ad Hoc Open-ended Informal Working Group and before the end of the sixty ninth session of the General Assembly”104 committed to addressing, on an urgent basis, “the issue of the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, including by taking a decision on the development of an international instrument under the Convention on the Law of the Sea”.105 Following that decision, the General Assembly agreed, through resolution 68/70, that the Ad Hoc Working Group will hold several meetings to prepare for the decision to be taken at the 69th session of the General Assembly and requested it “to make recommendations to the Assembly on the scope, parameters and feasibility of an international instrument under the Convention”.106 The process for preparing that decision might not lead to discussions on which principles of UNCLOS are applicable or on the specific legal regime, but if the General Assembly decides to convene the negotiation of an implementing agreement to UNCLOS (or ‘an international instrument under UNCLOS’), discussion on the legal principles will necessarily have to take place, as they will give shape to a future regime to implement those principles. The world today is one in which the NIEO is hardly mentioned but there is still a widely recognized need to bridge the gap between developed and developing countries. The pragmatic approach of the General Assembly, which decided to deal as a single question with two different maritime areas subject to different legal regimes, might lead to considering pragmatic approaches 102  Letter dated 8 June 2012 from the Co-Chairs of the Ad Hoc Open-ended Informal Working Group to the President of the General Assembly (A/67/95). 103  See ‘Inter sessional workshops aimed at improving understanding of the issues and clarifying key questions as an input to the work of the Working Group in accordance with the terms of reference annexed to General Assembly resolution 67/78, Summary of proceedings prepared by the Co-Chairs of the Working Group’, document A/AC.276/6. 104  The sixty-ninth session of the General Assembly will formally finalize in September 2015. 105  A/RES/66/288. 106  A/RES/68/70 para. 198.

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and solutions. However, principles will always underlie a future negotiation, as its purpose would be the implementation thereof. The arguments in favour of the application of the common heritage of mankind to biological organisms of the Area sound very convincing, and its ultimate result would be the sharing of benefits with mankind as a whole. Currently, the conviction shared by the majority of States is that the sharing of benefits is an essential part of the ‘package’ of a future negotiation. So, even when some are reluctant to referring to the principle, what would the sharing of benefits arising from the exploitation of the biological organisms—including genetic resources—of the Area amount to other than the common heritage of mankind?

PART 6 Islands and Archipelagic States

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Chapter 18

Archipelagic States and the New Law of the Sea Vincent P. Cogliati-Bantz Archipelagic States were among the first to ratify UNCLOS.1 The new Law of the Sea which emerged from the Third Conference is based upon functional allocation of rights and duties of coastal and third States over certain maritime areas. The right of transit passage (TP) was negotiated to respond to the extension of the breadth of the territorial sea in straits used for international navigation.2 It seeks to resolve the inherent tension between the interests of third States in unimpeded navigation and overflight and the status of the waters navigated through or above, for the territorial sea is placed under the sovereignty of the coastal State.3 The analogous right of archipelagic sea lanes passage (ASLP) emerged concurrently at UNCLOS III. It is not predicated upon the extension of the territorial sea but on the novel maritime zone of archipelagic (insular) waters; its justification also rests on the preservation of a right of passage that approximates the freedom of navigation previously enjoyed by third States, while respecting the sovereignty of archipelagic States (AS) over archipelagic waters (AW). This balance of interests infused the package-deal approach throughout the Conference.4 Genealogy AW are a legal creation closely linked to the emergence of the so-called ‘archipelagic doctrine’ forged by archipelagic practice itself: an archipelago 1  Notably Fiji in 1982, Jamaica and the Bahamas in 1983, the Philippines in 1984 and Indonesia in 1986. 22 States currently claim archipelagic status. See http://www.un.org/Depts/los/ LEGISLATIONANDTREATIES/PDFFILES/table_summary_of_claims.pdf. 2  See Hugo Caminos & Vincent P. Cogliati-Bantz, The Legal Regime of Straits: Contemporary Challenges and Solutions (2014). 3  Arts. 2 and 34. The US delegate made it clear from the outset that the freedoms involved in the new right of TP were navigation and overflight only, not all the high seas freedoms; furthermore, some restrictions would apply to the benefit of coastal States. E.g. UN Doc.A/ AC.138/SC.II/L.4 and Corr.1(1971); UN Doc.A/AC.138/SC.II/SR.36(1972). 4  Hugo Caminos & Michael R. Molitor, “Progressive Development of International Law and the Package Deal”, 79 Am. J. Int’l L. (1985): 871–879.

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should be viewed as a unity deserving special treatment. Only UNCLOS III transformed archipelagic claims into law. Colonial practice never developed a clear concept of an archipelago to unitize a group of islands.5 The 1930 Hague Codification Conference, which examined the question of the territorial sea, failed to address archipelagos due to lack of agreement on the breadth of the territorial sea.6 Archipelagos, being under colonial rule, had no international voice of their own.7 The 1958 Geneva Conference also side-tracked the issue: the Convention on the Territorial Sea only contains rules on a fringe of islands along the coast (Art. 4). While, in his first report on the territorial sea, Rapporteur François had suggested that “with regard to a group of islands (archipelago) and islands situated along the coast, the ten-mile line shall be adopted as the baseline for measuring the territorial sea outward in the direction of the high sea”,8 subsequent debates focused on the length of baselines. Proposals on archipelagos were deleted from the ILC’s Draft.9 The Conference did not act upon a Philippine suggestion to draw straight baselines around islands forming a compact whole and to treat insular waters as internal waters.10 The 1960 Geneva Conference did not place archipelagos on the agenda either. This lack of international attention co-existed with the work of learned societies, some of which regarded a group of islands as a unit, others treating each island individually.11 “The contributions, if any, made by the private scientific and scholarly organizations were ancillary to the main problem 5  Daniel P. O’Connell, “Mid-Ocean Archipelagos in International Law”, 45 Brit.Y.B. Int’l L. (1971): 1, 2. 6  The Sub-Committee on the Territorial Sea decided not to draft a text on “a group of islands (archipelago) and islands situated along the coast”, “owing to lack of technical details”: L.o.N. Doc. C 351(b), M 145(b)(1930V). 7  Ram P. Anand, “Mid-Ocean Archipelagos in International Law: Theory and Practice”, 19 Indian J. Int’l L. (1979): 229. 8  UN Doc.A/CN.4/53 (1952), Art. 10. The ten-mile maximum length for straight baselines (later limited to five) was suggested as a basis for discussion if the ILC wished to progressively develop the law: UN Doc.A/CN.4/ 61, para. 69 (1953). 9  1 Yearbook of the ILC, 217–218(1955). Islands adjacent to the coast were covered by Art. 5 of the Draft which was to become Art. 4 of the Convention. 10  UN Doc.A/CONF.13/C.1/L.98, UNCLOS I, 3 Official Records, 239(1958). In a preparatory document, Norwegian jurist Evensen considered that the right of innocent passage through “archipelagic straits” was to be preserved: “Certain Legal Aspects Concerning the Delimitation of Territorial Waters of Archipelagos”, UN Doc.A/CONF.13/18, UNCLOS I, 1 Official Records, 289(1957). 11  Examples in Hiran W. Jayewardene, The Regime of Islands in International Law 113 et seq. (1990).

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confronting them; namely, regulation of territorial waters”.12 More importantly, it also co-existed with individual claims made by archipelagos, both independent and dependent. At the forefront, the Philippines in 1955 declared that all waters around and between its islands were internal and subject to its exclusive sovereignty.13 Indonesia made a similar declaration in 1957, albeit granting a right of innocent passage to foreign ships.14 Invoking the high seas status of these waters under customary law (with the exception of a belt of territorial sea around each island), the maritime powers, joined by Japan and Australia, lodged diplomatic protests.15 At UNCLOS III, the coastal State’s sovereignty over insular waters had become acceptable to the international community so long as liberal navigational and overflight rights were recognized and so long as AW applied to a limited category of beneficiaries. Art. 49(1)and(2) of UNCLOS testifies to the sympathy of third States towards island nations; by proclaiming the sovereignty of the AS over AW and their resources, the Convention acknowledged the various concerns express by AS, particularly the ‘economic’ argument and the fact that AW are a major source of livelihood to locals and, with the emergence of the EEZ in the 1970s, islands nations started emphasizing that a unified archipelagic status was also necessary to the political unity of the archipelago itself. Indonesia pointed to the threats to its security and integrity should pockets of high seas continue to exist between islands.16 The regime of AW in Part IV crystallized quickly during the second session and developed out of proposals at the UN Sea-bed Committee. On July 22, 1971 Fijian Ambassador Nandan delivered a speech at the Committee proposing the acceptance of the archipelagic principle and expressing the view that “the waters so enclosed are to be

12  Barry Dubner, The Law of Territorial Waters of Mid-ocean Archipelagos and Archipelagic States 28(1976). 13  UN Doc.A/2934, 52–53(1955). Straight baselines enclosing the islands were designated in 1961. Admittedly, no right of innocent passage was recognized in insular waters: see Patricia E.J. Rodgers, 82 Mid-Ocean Archipelagos and International Law (1981). This was confirmed by the Declaration made upon signature of UNCLOS. 14  2 Jap. Ann. Int’ l L. (1958): 218. See Government Regulation No. 8 on Innocent Passage of Foreign Vessels Through Indonesian Waters (1962). Prior notification of the passage of warships was required, unless passage was effected in specific sea lanes to be designated; there, submarines could also navigate submerged. 15  E.g. O’Connell, op. cit., 60–62. Innocent passage in insular waters enclosed by straight baselines, by analogy with Art. 5(2) of the Convention on the Territorial Sea, was rejected by Indonesia and the Philippines which are not parties to that Convention. 16  UNCLOS III, 2 Official Records, 260(1974).

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regarded as territorial waters subject to the right of innocent passage”.17 This formed the basis of the Archipelagic Principles by Fiji, Indonesia, Mauritius and the Philippines: the waters enclosed by straight baselines connecting the outermost islands of the archipelago were to be under the sovereignty of the AS and innocent passage of foreign ships was to “be allowed in accordance with its national legislation, having regard to the existing rules of international law. Such passage shall be through sea lanes as may be designated for that purpose by the AS”.18 This was revised subsequently19 but the right of innocent passage was a suspendable one and could still be restricted to sea lanes. The UK, on the other hand, was of the view that the passage regime applicable in straits, which was being developed at the same time, applied in parts of AW that have been used as routes for international navigation; the right of innocent passage applied otherwise in AW.20 This is in essence what Part IV achieves: it recognizes the ‘unity’ theory and allows AS to claim sovereignty over wide areas considered high seas under customary law but it also confers on third States a liberal right of passage in ‘archipelagic straits’. There was no ambiguity about this sine qua non condition. At the Caracas session, the delegate of the UK said that his delegation “was willing to develop a concept of the AS [but] a satisfactory regime of navigation through AW must be developed to cater to the needs of the international community”.21 Phenomenology Applicability of the New Regime Part IV only applies to an AS, defined as “a State constituted wholly by one or more archipelagos and may include other islands” (Art. 46(a)). It does not apply to coastal or oceanic archipelagos belonging to a mainland State. Art. 7 may apply to a coastal archipelago if it constitutes a “fringe of islands along the coast in its immediate vicinity”. Some continental States with off-lying archipelagos had considered that no difference should exist with the legal status of archipelagos that constitute a single State. Proposals were notably made by

17  O’Connell, n. 5, 49–50. 18  UN Doc.A/AC.138/SC.II/L.15(1973). 19  UN Doc.A/AC.138/SC.II/L.48(1973). 20  UN Doc.A/AC.138/SC.II/L.44(1973). 21  UNCLOS III, 2 Official Records, 261(1974). See also the USSR, id., 267.

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Ecuador, Panama and Peru at the Sea-bed Committee22 and, at the Conference, by Canada, Norway, Iceland and six others to the effect that the provisions on AS should also apply to islands of continental States.23 Similar suggestions were made at the Caracas session by France, India, Spain or Portugal for their midocean islands.24 The Main-Trends Working Paper reflects them.25 However, they disappeared from the 1975 Informal Single Negotiating Text.26 Firstly, AS themselves based their claim on total insularity. Secondly, maritime powers would not have endorsed an archipelagic principle broadly defined.27 Thirdly, there was an ideological opposition to applying the archipelagic principle to archipelagos of continental States: the ‘presumption of colonialism’ meant that the metropolitan State, not the local population, would benefit from sovereignty over AW.28 Fourthly, the main reason against a broad archipelagic regime lies in the general opposition of the international community to encroachment upon navigational freedoms. As Thailand put it, “if the principle was to apply to all archipelagos and they were granted territorial 22  UN Doc.A/AC.138/SC.II/L.27(1973). As early as 1951, Ecuador enclosed the Galapagos by straight baselines. Chile, Ecuador and Peru, in the 1952 Santiago Declaration, declared a 200-mile maritime zone extending “in every direction from any island or group of islands forming part of the declarant country”. Jayewardene, n. 11, 120. The waters enclosed are regarded by Ecuador as internal: UNCLOS III, 2 Official Records, 267(1974). This has been protested by the US. Ecuador is not a Party to UNCLOS. The Galapagos Archipelago was made a Particularly Sensitive Sea Area (PSSA) by IMO in 2005 (MEPC.135(53)), establishing also an area that certain transiting ships “should” avoid (A.976(24)). In 2006, IMO adopted under SOLAS a mandatory ship reporting system for all ships in that PSSA (MSC.229(82)). 23  UN Doc.A/CONF.62/L.4(1974). Interestingly, this was also sponsored by Indonesia. 24  “[S]everal continental states, including Denmark, Ecuador, Portugal, and Spain, have established straight baselines around their islands in a manner simulating an archipelago. The United States has protested these claims”. US Department of State, Limits in the Sea Nr.112 48–49 (1992). 25  UN Doc. A.CONF.62/L.8/Rev.1, Provision 202, Formula B (1974). 26  Art. 131 mentioned that provisions on AS were “without prejudice to the status of oceanic archipelagos forming an integral part of the territory of a continental State”. UN Doc.A/ CONF.62/WP.8/Part II. This was rejected subsequently in the Revised Single Negotiating Text. 27  Above n. 20–21 and text. 28  Renaud Lattion, L’archipel en Droit international (Paris: Éditions Payot, 1984), 113–114. See notably the views of Burma (which spoke rarely at the Conference), UNCLOS III, 2 Official Records 266(1974); Algeria, id., 271. This argument is only partly convincing, for some developing continental States with oceanic archipelagos relied on the archipelagic doctrine precisely on the ground that a unified regime would promote their development.

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waters and other jurisdictional zones, [one] wondered how much would be left for the international area”.29 Lastly, an extension of claims was also frowned upon when it was likely to aggravate political tensions. It is no secret that “the claim of a 100-mile zone in the Arctic in which Canada proposed to regulate navigation for environmental purposes was a special shock given Canada’s geographic, political and economic position in the world”.30 Apart from positions of principle raised by the Northwest Passage which the US regards as a strait used for international navigation to which TP applies, some delegates at the Conference may have found it wise to advise Greece not to press its archipelagic claim in the Aegean Sea.31 Indeed, Turkey spoke unequivocally: Continental States which possessed islands should not be mistaken for archipelagic States. To generalize any rule of law was contrary to the interests of the international community  .  .  .  [The Turkish] delegation had distributed a map which illustrates the consequences of applying the regime of AS in the Aegean Sea . . . [This] would upset a historically established balance for the benefit of only one of the States in the area.32 For all these reasons, an archipelago benefits from Part IV only if it falls within the categories in Art. 305. It need not be sovereign (e.g. it may be a self-govern-

29  UNCLOS III, 1 Official Records 147(1974). Similar remarks were made by Bulgaria and Japan. 30  Bernard H. Oxman, The United Nations and the Law of the Sea, in 2 United Nations Legal Order 685–686 (Oscar Schachter & Christopher Joyner eds., 1995). See Arctic Waters Pollution Prevention Act 1970. In 1986, Canada drew straight baselines around the Arctic Archipelago and claimed internal waters status, albeit on the basis of historic waters status. The baselines notably enclose the M’Clure Strait. 31  For Greece, the right to draw straight baselines was to be recognized regardless of whether an archipelago was part of a State also possessing a continental territory or formed a State in itself. UNCLOS III, 1 Official Records, 129(1974). Greece further believed that innocent passage through straits used for international navigation struck the proper balance. Ibid. For the similar position of Canada, ibid., 202. On the Canadian claim and the situation today, see Caminos & Cogliati-Bantz, op. cit. The USSR showed some support to Canada, hoping to secure recognition of its own claim in the Northeast Passage. 32  UNCLOS III, 2 Official Records 272(1974). The dispute between the two countries later concerned the applicability of the right of TP in areas with numerous spread-out islands: see UN Doc.A/CONF.62/WS/26(1982, Greece) and UN Doc.A/CONF.62/WS/34 (1982, Turkey).

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ing entity) but the parent State must have delegated the relevant competences in matters governed by UNCLOS.33 Archipelagic Waters and Allocation of Competences Archipelagic Baselines The rights and duties in Part IV are exercisable in AW. Under Art. 47, “an AS may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago”. The existence of an AS is a precondition. It is defined as a “State constituted wholly by one or more archipelagos and may include other islands”. An archipelago for the purpose of UNCLOS is a “group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such”.34 Admittedly, a minimum of two islands is required by ‘group’35 and the Convention creates a liberal test which stems from proposals by AS themselves at the Sea-Bed Committee.36 States with islands that do not constitute an intrinsic geographical, economic and political entity may still qualify under the ‘historic’ clause as an alternative requirement.37 AW do not exist automatically whenever an AS is identified: pursuant to Art. 49, the sovereignty of the AS extends to AW enclosed by archipelagic baselines drawn in accordance with Art. 47. When no archipelagic baselines are designated, either because the State concerned chooses not to designate them, or may not designate them under Art. 47, each island will be treated individually following Art. 121.38 Indeed, when the baselines are not drawn, logically the AS does not have AW but only a potential claim to AW. Thus the Bahamas’s 33  See Art. 1(2)(2). On that basis, the Cook Islands qualifies. For other territories, see Resolution III of the Final Act to the Conference. 34  “Part of islands” applies to Papua New Guinea. “Other natural features” such as drying reefs and atolls conveniently avoids deciding whether such features constitute islands under Art. 121. 35  The UK required a minimum of three: above n. 20. 36  Above n. 18–19. 37  “It provides an alternative basis for evaluating the Philippines’ claim and perhaps that of Tonga”. Jayewardene, n. 11, 139. 38  See n. 1 for current claims. The claim is made in domestic legislation either impliedly by the provision of AW or expressly by declaration (e.g. Trinidad &Tobago[1986], Dominican Republic[2007], Jamaica[1996]). Under Art. 47(8)–(9), the baselines must be shown on

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Act No. 37 of 1993 says that, when archipelagic baselines are not established, the baselines from which the breadth of the territorial sea is measured is the low-water line along the coast of each island.39 Only by Order of December 8, 2008 were archipelagic baselines designated (and coordinates deposited with the UN).40 By contrast, the Comoros deposited the relevant coordinates in 2010 but claimed sovereignty over AW back in 1982.41 Archipelagic baselines are subject to a length requirement (a maximum of 100 n.miles with up to 3% of the total number of baselines with a maximum of 125 n.miles)42 and a spatial requirement (a land/water ratio between 1 to 1 and 1 to 9).43 The land/water ratio does not allow Japan, the UK or Cuba to draw archipelagic baselines. These requirements also limit the way in which the various islands may be enclosed: it may be necessary to enclose certain archipelagos only, not the entire AS, provided the general configuration of an archipelago is respected and that any enclosed archipelago contains the ‘main islands’.44 An additional requirement is the ‘non-enclavement’ principle in Art. 47(5). charts; lists of geographical coordinates may be substituted. A copy of each such chart or list must be deposited with the UN Secretary-General. 39  http://www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/BHS_1993_37.pdf (Sec.4(3)). 40  United Nations, Law of the Sea Bulletin N.69 74(2009). Grenada adopted a similar solution. 41  See http://www.un.org/depts/los/LEGISLATIONANDTREATIES/STATEFILES/COM. htm. Jamaica, for its part, declared itself an AS in 1996 and deposited the coordinates of archipelagic baselines that same year. 42  Art. 47(2). Hence, the greater the total number of baselines, the greater the number of possible baselines longer than 100 n.miles. 43  Art. 47(1). At the Sea-bed Committee, the UK had suggested a length limitation of 48 miles for baselines and a ratio of 5 to 1. The archipelagic nations’ proposals contained no limits. The current length limits date back to the Informal Composite Negotiating Text of 1977. The current ratio dates back to the ISNT. 44  In Art. 47(1)–(3), the reference to “archipelago” is to a given group enclosed by straight baselines within the AS. “Main islands” in Art. 47(1) is not defined and may refer to the largest islands in the geographic, demographic and economic sense or to those islands that have political, historical or cultural value. E.g. Satya Nandan (ed.), 2 United Nations Convention on the Law of the Sea 1982: A Commentary 430 (1993). Art. 47(3) contains a level of indeterminacy; the Maldives made a claim in 1972 defining its national territory by a large rectangle. This was protested. See J. Ashley Roach & Robert W. Smith, Excessive Maritime Claims 74–75 (1994). By Act of 1996, the Maldives changed this and defined archipelagic baselines. For the USA, three segments exceed the maximum length allowed. See US Department of State, Limits in the Sea Nr.126 3 (2005).

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Further concessions were made at UNCLOS III: Art. 47(7), in the determination of the land/water ratio, accommodates cases like the Bahamas, where “the ratio of very shallow water to dry land areas and the steepness of the slopes appeared to be unparalleled”.45 Also, Art. 47(1) allows base points on drying reefs and Art. 47(4) permits them on low tide elevations provided light houses or similar structures have been built on them or on the condition that the LTE is situated at least partly within the breadth of the territorial sea from the nearest island.46 Archipelagic Waters AW are a sui generis maritime zone and show analogies with both internal waters and the territorial sea. As in the territorial sea, and as in internal waters enclosed by straight baselines that previously were not considered internal waters, innocent passage exists in AW (Arts. 8(2), 52 and 17). Also, the right of ASLP (Art. 53) is functionally equivalent to the right of TP as defined in Part III which is available in the territorial sea and in areas of internal waters within a strait enclosed by a straight baseline which had not previously been considered internal waters (Art. 35(a)). Straight archipelagic baselines constitute the inner limit of the territorial sea from which the breadth of the other maritime zones is measured.47 Non-Navigational Rights in Archipelagic Waters Rights of passage in AW are not the only concession island nations had to make. Art. 51(1) says that existing agreements with other States shall be respected. That provision first appeared in the ISNT and arguably ensures that the AS does not invoke the principle rebus sic stantibus (if at all applicable) with respect to prior treaty rights in relation to waters that are now archipelagic. Furthermore, under Art. 51(2) 45  UNCLOS III, 2 Official Records 265(1974). 46  In the case of Jamaica the US noted: “Jamaica would not qualify as an AS if they did not include the small southern rocks and cays in its archipelagic straight baseline system; in other words, the large main island of Jamaica by itself would not meet the archipelagic criteria”. US Department of State, Limits in the Sea Nr.125 4 (2004). Also for the US, the Dominican Republic’s archipelagic baseline system includes segments drawn from lowtide elevations that do not satisfy the conditions in Art. 47(4) and the water-to-land area ratio has been met only by utilizing such low-tide elevations. Ibid., Nr.130 3 (2014). 47  Art. 48. Within AW, an AS may draw closing lines for the delimitation of internal waters: Art. 50.The Bahamas, the Comoros, Fiji, Grenada, Indonesia, Kiribati, the Philippines, Sao Tome e Principe, the Solomon Islands and Papua New Guinea do not claim a contiguous zone; the latter does not claim an EEZ either.

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an AS shall respect existing submarine cables laid down by other States and passing through its waters without making a landfall. An AS shall permit the maintenance and replacement of such cables upon receiving due notice of their location and the intention to repair or replace them. This originated in a Japanese proposal for inclusion in the ISNT.48 It applies to existing cables only; it does not cover pipelines. Traditional fishing rights and other legitimate activities of immediately adjacent neighbouring States in areas falling within AW are protected by Art. 51(1) which dates back to discussions at the Sea-Bed Committee, reflecting notably the concerns of Singapore, Malaysia and Thailand. Indonesia at the Conference sought to reassure its immediate neighbours but also made it clear that it was not ready to make such assurances for the entirety of AW, and that only certain rights and certain neighbors would be protected.49 Art. 51(1) applies to ‘immediately adjacent neighbouring States’, signifying that they must share a border (admittedly a sea border) with the AS.50 ‘Traditional fishing rights’ is not defined and despite the claim that it refers to traditional fishermen and their methods,51 the French and Spanish versions make it clear that it is the rights that are traditional, i.e. acquired by long-standing usage. ‘Other legitimate activities’ is not defined either but their scope and exercise and the areas of waters concerned must be regulated by bilateral agreements under Art. 51(1). Art. 47(6) addresses the area between the Malay Peninsula and Northern Borneo. It was suggested by Malaysia which was concerned by the impact of Indonesian archipelagic baselines upon its interests in Indonesian waters.52 That provision mentions ‘existing rights’, not just ‘traditional fishing rights’ and ‘all other legitimate interests’ as opposed to ‘other legitimate activities’. Malaysia and Indonesia entered into an agreement on those questions: the 48  4 Platzöder, 339(1976). 49  UNCLOS III, 2 Official Records 298(1974). 50  Japan at the Conference had claimed traditional rights in Indonesian AW. 51  Hasjim Djalal, “Indonesia and the New Extensions of Coastal State Sovereignty and Jurisdiction at Sea”, in Regionalization of the Law of the Sea 284, ed. Douglas M. Johnston (Cambridge, Mass: Ballinger Publishing, 1978). 52  “The archipelagic boundary as claimed by Indonesia would enclose [the Anambas and Natuna Islands] within the Indonesian archipelago. The effect of that claim would result in the sudden severance of the free access and all forms of communications which Malaysia had always enjoyed through the high seas between the two parts of its territory”. UNCLOS III, 2 Official Records, 292(1974).

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Treaty of Jakarta (February 25, 1982) goes further than Part IV and extends to the Indonesian territorial sea and its airspace.53 Under Art. 2(2), the traditional rights of Malaysia consist notably of a right of access of ships and aircraft, fishing rights of Malaysian traditional fishermen, maintenance of cables and pipelines and the laying of new cables and pipelines. The right of access of ships, analogous to the right of ASLP, exists in two Corridors defined by axis lines in a map annexed to the Treaty.54 Malaysian State and civil aircraft enjoy the right of continuous, expeditious and unobstructed overflight through the airspace above the territorial sea, AW and territory of Indonesia between East and West Malaysia.

Navigational Rights in Archipelagic Waters

Innocent Passage Ships of all States enjoy the right of innocent passage through AW. Art. 52 incorporates Part II, section 3 of UNCLOS, into Part IV. The AS under Art. 22 may require certain ships to use sealanes for the safety of navigation but this is conceptually different from the initial suggestions that innocent passage itself may be restricted to sealanes. The only textual difference between Parts II and IV is the absence of ‘weapons exercises’ in Art. 52(2) when compared with Art. 25(3) but this may be considered included within the protection of security. Indonesia makes such express provision in its Act of 1996 on Indonesian Waters. Out of twenty-two declared AS, Indonesia requires prior notification of the passage of foreign warships, Antigua and Barbuda, the Maldives, St Vincent and the Grenadines, the Seychelles and Vanuatu require prior authorization of such passage (in the latter two cases, the authorization also applies to nuclearpowered ships and ships carrying nuclear [or other dangerous substance in Vanuatu] substances); Mauritius requires permission for ships carrying radioactive materials; in theory, the Philippines does not recognize any right of 53  Text in United Nations, Practice of Archipelagic States 144 (1992). Entered into force May 25, 1984. 54  See below 4.2. Malaysian Government ships may conduct naval manoeuvres, including tactical exercises, provided no firing of weapons is permitted. The right of innocent passage in the area between East and West Malaysia continues to apply in accordance with international law but Malaysian traditional fishing boats enjoy a right of innocent passage which must not be hampered.

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innocent passage in insular waters.55 This is arguably based on the view that customary law does not grant a right of innocent passage to foreign warships and that UNCLOS may be interpreted accordingly. Whatever the content of the customary rule, one may nevertheless note that subsection A of section 3 of Part II is entitled ‘rules applicable to all ships’.56 Archipelagic Sea Lanes Passage Like the analogous right of TP, ASLP it is a compromise between the regime of innocent passage advocated by AS57 and the broader freedom of navigation and overflight defended by third States. The latter’s interests were clearly military manoeuvrability but not exclusively so: third States with commercial interests also pointed out that some archipelagos straddle vital communications routes.58 The functional analogy between archipelagic sea lanes and straits, despite geographical differences, was expressly made by the UK in its Draft.59 ASLP is defined in Art. 53(3) as the “rights of navigation and overflight in the normal mode solely for the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or an [EEZ] and another part of the high seas or an [EEZ]”, reflecting Art. 38(2). The right of TP in section 2 of Part III applies to straits ‘used for international navigation’. While under Part IV the AS may designate any sea lane where ASLP applies, such generosity is not to be presumed: at the very least, ASLP must apply to ‘routes normally used for international navigation’ (Art. 53(12)). Despite functional analogy between ASLP and TP, some differences may be noted: the former refers to

55  Above n. 13. In a declaration made upon signature of UNCLOS, Cabo Verde claimed the “right to adopt laws and regulations relating to the innocent passage of foreign warships through [its] territorial sea or AW”. Sao Tome e Principe made a similar declaration. 56  Of significance is also the USA/USSR Joint Statement of 1989 to that effect. See 28 Int’l Legal Materials 1444 (1989). On customary law, see e.g. Bing Bing Jia, The Regime of Straits in International Law 84–89 (1998) and the literature cited there. 57  Innocent passage benefits ships, not aircraft and submarines must navigate on the surface. ‘Innocence’ is qualified by a list of prohibited activities in Art. 19; non-innocent passage may be prevented by the coastal State. The latter has a broad regulatory competence under Arts. 21–22 and also enforcement powers which may lead to hampering of passage in accordance with UNCLOS and the exercise criminal or civil jurisdiction aboard merchant ships. 58  E.g. the declaration of Japan, UNCLOS III, 2 Official Records, 261(1974). 59  Above n. 20, Art. 7.

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rights, while the latter mentions freedom.60 Furthermore, ASLP in Art. 53(3) must be ‘unobstructed’, a condition unfound in Art. 38. It is not entirely clear whether the latter condition relates to an obligation of the beneficiaries of ASLP or of the coastal State, and how it differs either from the requirements of ‘continuous and expeditious’ passage or from the coastal State’s duty not to hamper passage.61 ‘Unobstructed’ is not found in Art. 53(1) and, interestingly, was introduced by Indonesia.62 Also, TP under Art. 38(2) applies to passage for the purpose of entering, leaving or returning from a State bordering the strait; this does not apply to ASLP as there cannot be another State along the route. Art. 54 of UNCLOS incorporates Arts. 39, 40, 42 and 44 into Part IV, with the result that the respective rights and duties of third States and the AS with respect to ASLP are the same as under the regime of TP. This means that the right of ASLP is enjoyable by all ships and aircraft (including warships and military aircraft) and that submarines may pass submerged. The regulatory powers of the AS in relation to ASLP are restricted to four matters (Art. 42) and, in particular, the competence in relation to safety of navigation and control of pollution involves the application of international, not unilateral, standards. Ships must comply with generally accepted international rules relating to safety of navigation or control of pollution (Art. 39(2)). Civil aircraft in transit must observe the Rules of the Air which are adopted by the ICAO.63 All aircraft must monitor specified radio frequencies (Art. 39(3)(b)). Contrary to Part II, Part III contains no provision on the application of the coastal State’s laws or the exercise of its criminal or civil jurisdiction. The State must not hamper ASLP (Art. 44). Hence, a breach of applicable rules must be raised with the flag State and does not call for direct enforcement jurisdiction of the AS while the ship or aircraft is in ASLP. The only exceptions envisaged by UNCLOS

60  The US attempted to substitute “freedom” for “right” but was unsuccessful: J. Peter A. Bernhardt, “The Right of Archipelagic Sea Lanes Passage: A Primer”, 35 Va. J. Int’l L. (1995): 719, 741. For Oxman, since the delimitation of the area where ASLP applies is dictated by practical considerations subject to change, it would be inappropriate to use the term “freedom”: Bernard H. Oxman, “The Regime of Warships under the United Nations Convention on the Law of the Sea”, 24 Va. J. Int’l L. (1984): 809, 860. 61  Art. 44, incorporated by Art. 54. Art. 38(1) says that TP must not be impeded. 62  Amendments to the RSNT (July 6, 1977), 4 Platzöder 477. 63  State aircraft (which are not subject to the ICAO regime) “will normally comply” with the Rules: Art. 39(3)(a).

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are Art. 23364 and Art. 234.65 Furthermore, enforcement pursuant to the general right of self-defence applies.66 Archipelagic Sea Lanes Under Art. 53(1), ‘an AS may designate sea lanes and air routes thereabove’ for the exercise of ASLP. ASLP is exercisable in the adjacent territorial sea as well (Art. 53(4)). Under Art. 53(4), archipelagic sea lanes (ASL) and air routes must include ‘all normal passage routes used as routes for international navigation or overflight’. However, it is clear from Art. 53(12) that the right of ASLP exists regardless of whether sea lanes are designated. Unlike the right of TP, ASLP exists only in routes ‘normally’ used for international navigation, arguably in light of the vast expenses of waters involved.67 What a normal route is, is not left to the unilateral determination of the AS.68 Proposals for ASL must be submitted to IMO which is the competent international body (Art. 53(9)).69 Conversely, IMO may only adopt ASL with the agreement of the AS, which then enacts them in domestic law and designates them on charts (Art. 53(10)).

64  For violations, by non-immune foreign ships, of the laws of the AS adopted under Art. 42(1)(a)–(b) causing or threatening major damage to the marine environment of the areas where ASLP applies. Enforcement measures and safeguards apply under Part XII. Art. 233 only mentions straits but Art. 42 applies to AS and, further, it is not a reasonable interpretation of UNCLOS that AW are not covered by Part XII where they are nowhere mentioned expressly. 65  This concerns the adoption and enforcement, by the coastal State, of laws for the prevention of pollution from ships in ice-covered areas within the limits of the EEZ. Art. 234 was negotiated by the US, USSR and Canada with the Arctic in mind but it is theoretically applicable to AW, which are within the limits of the EEZ. Such laws however must have “due regard to navigation”. 66  See the duties of ships and aircraft in Art. 39(1)(b). These issues are examined in detail in Caminos & Cogliati-Bantz, n. 2, 7.6. 67  No importance should be attached to the drafting inconsistencies in Art. 53(12) which does not mention overflight. Should an air route be normally used for international overflight but the sea lane underneath is not normally used for international navigation, the AS must designate the sea lane anyway, since under Art. 53(4) sea lanes and air routes must include all normal passage routes used as routes for international navigation or overflight. 68  In 1977, the Philippines suggested replacing “normally” by “customarily”. See 4 Platzöder 474. That was not adopted. 69  ASL are, in essence, routeing measures within the jurisdiction of IMO under SOLAS (Chapter V).

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The procedure is the same for substituting ASL ‘when circumstances require’70 or prescribing and substituting traffic separation schemes in ASL (Art. 53(6)). Under Art. 53(5), ASL are defined by a series of continuous axis lines from the entry to the exit points of passage routes. ASL may be no wider than 50 nautical miles, as ships and aircraft must not deviate more than 25 nautical miles to either side of the axis. A further condition is that ships and aircraft must not navigate closer to the coasts than 10% of the distance between the nearest points on islands bordering the sea lane.71 No sea lane may be designated without the corresponding air route; once IMO adopts ASL, the air routes above exist automatically. While under Art. 53 ICAO does not approve air routes, its Secretariat noted that for practical reasons AS would present their proposals for inclusion into the appropriate Regional Navigation Plan for eventual approval by the ICAO Council.72 The ‘General Provisions for the Adoption, Designation and Substitution of ASL’ (GP) indicate in the Introduction that international air traffic services routes above AW to be used by civil aircraft in international air navigation are subject to the approval process of ICAO.73 The GP were prompted by the Indonesian proposal for the designation of certain ASL.74 In 1998, the MSC adopted the GP as amendment to the General Provisions on Ships’ Routeing (Res.A.572(14), as amended).75 The GP specify the respective roles of IMO, the AS and third States. In particular, the GP say that a proposal may be partial if it does not yet include all normal passage routes. In the meantime, ASLP applies in all normal passage routes used for international navigation or overflight.76 All governments must be informed of the proposal and given an opportunity to comment, and may request the addition of other ASL in the proposal.77 The ASL shall not come into effect until at least six months after their publications.78

70  Art. 53(7). 71  Art. 53(5). The permitted deviation is arguably a compromise between the Indonesian position which favoured a 20 n.mile maximum width and the USA which supported an 80 n.mile width. See 4 Platzöder 341–342. 72  ICAO Doc.LC/26-WP/5-1(1987). 73  Sec. 3.3. 74  IMO Doc.MSC 67/7/2(1996). 75  IMO Doc.MSC.71(69), Annex 2 (1998). The MSC performs this function on behalf of IMO. 76  Secs. 3.12, 6.7. 77  Secs. 3.3, 3.4. 78  Sec. 3.13 (and 2004 amendment in MSC.165(78)).

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The Case of Indonesia The Indonesian ASL were adopted by the MSC at the same time as the GP.79 The proposal had been prepared in consultation with Indonesia’s neighbours and certain maritime States. It took account of several key factors, notably the presence of natural resources in the AW and the needs of international transportation. It contains three ASL and their spurs, with the notable omission of an East/West ASL and was therefore adopted by IMO as a partial designation.80 By Act of August 8, 1996 Indonesia established itself as an AS under UNCLOS.81 The Act refers to the right of ASLP under UNCLOS but leaves it to Government Regulation to flesh out the details.82 By Regulation of June 28, 2002 the ASL in Indonesia were implemented with effect on December 28, 2002. It is not in full conformity with UNCLOS notably because it limits ASLP to designated sea lanes only.83 There is no reference to Art. 53(12) of UNCLOS in the Regulation and its Elucidation appears to indicate that ASLP is exercisable only in the ASL that are designated.84 No other AS has submitted proposals for ASL. In particular, the Philippines adopted new archipelagic straight baselines under Art. 47 which appear consistent with UNCLOS.85 But it has not yet enacted legislation on ASLP. A Bill was introduced in March 2011 on the establishment of ASL and on the rights and duties of States therein, together with associated protective measures. The Bill was approved by the House in 2012 but is still pending before the Senate.86 In this Bill, only three ASL are planned while five main routes are used for international navigation.87 Additionally, the Bill makes no mention of IMO in 79  IMO Doc.MSC.72(69), Annex 2 (1998); text with maps at http://www.navcen.uscg.gov/ pdf/marcomms/imo/msc_resolutions/MSC69-22a1-9.pdf. 80  At IMO, most States commented on the lack of ASL through the Java Sea; the US and Australia were particularly concerned. The latter had also suggested another North/South ASL from the Arafura Sea to the Pacific. 81  http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/IDN_1996_Act. pdf. 82  Arts. 18–19. 83  Art. 15. These are the three ASL adopted by IMO. 84  Text at http://www.imo.org/blast/blastDataHelper.asp?data_id=7620&filename=200add.1.pdf. On the unfortunate consequences of the lack of East/West ASL and the ‘Bawean incident’, see Caminos & Cogliati-bantz, op. cit. 85  Act No.9522 of March 10, 2009: United Nations, Law of the Sea Bulletin N.70 32(2009). This was unsuccessfully challenged before the Philippines Supreme Court: Magallona and Others v Ermita and Others, G.R No. 187167, decision of July 16, 2011. 86  http://www.senate.gov.ph/lis/bill_res.aspx?congress=15&q=SBN-2738. 87  Main routes identified in www.rsis.edu.sg/publications/workingpapers/wp182.pdf, 7. The Bill (with maps) is available at http://www.senate.gov.ph/lisdata/109359325!.pdf.

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the adoption of ASL and, on its face, only envisages ASLP and innocent passage in designated ASL.88 Some at the Government do not favor the adoption of ASL but, rather, the designation of the entire country as a PSSA with associated protective measures that would ‘guide vessel transit in the exercise of the right of ASLP’.89

Compliance and Conclusions

State practice reveals less than perfect conformity with the UNCLOS. A 2009 study distinguished between several categories of AS.90 States which claimed AS and defined archipelagic baselines and ASL under Art. 47 (Indonesia); States which defined archipelagic baselines under Article 47 but did not designate ASL (e.g. Fiji, Jamaica), States which claimed AS status but designated archipelagic baselines in a manner contrary to Art. 47 (e.g. Cabo Verde, Dominican Republic, Maldives); and States which neither defined archipelagic baselines nor designated ASL (e.g. Kiribati, St Vincent).91 While space constraints limit an exhaustive analysis, it must be noted that navigational rights in AS as envisaged by some of these States is not compatible with Part IV (or their compatibility is subject to doubt), even if the baselines are otherwise compliant with UNCLOS. For instance, the Bahamas requires that foreign ships exercising innocent passage through AW use ASL when designated;92 Cabo Verde’s laws contain no provision on the right of ASLP and only refers to the right of innocent passage in AW;93 in a similar vein, Mauritius only mentions the right of innocent passage as a limit on exercise of its sovereignty in AW but also 88  Sec. 11&15. 89  Alberto A. Encomienda, “Archipleagic Sea Lanes Passage and the Philippines Situation”, in Freedom of Seas, Passage Rights and the 1982 Law of the Sea Convention, ed. M.H. Nordquist, T.T.B. Koh & J.N. Moore (Leiden: Martinus Nijhoff, 2009), 393, 406 No further details are given. See also above n. 13 & 55. 90  Martin Tsamenyi, Clive Schofield & Ben Milligan, “Navigation through Archipelagos: Current State Practice”, in Freedom of Seas, Passage Rights and the 1982 Law of the Sea Convention, ed. M.H. Nordquist, T.T.B. Koh & J.N. Moore (Leiden: Martinus Nijhoff, 2009), 413. 91  States such as the Bahamas, Comoros and the Seychelles, which were listed by the authors as not having established archipelagic baselines, have done so since then: in 2008, 2010 and 2008 respectively. The US considers that the baseline system of the Bahamas is consistent with UNCLOS, while it is not the case for the Seychelles. US Department of State, Limits in the Sea Nr.128 3 (2014) and Nr.132 4 (2014). 92  Act No. 37(1994), Sec. 13. 93  Law No. 60/IV(1992), Art. 6.

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envisages the designation of sea lanes and air routes to be used by foreign ships and aircraft through or over AS, internal waters and territorial sea;94 Trinidad and Tobago does not envisage ASLP without a Regulation for its designation and does not mention innocent passage in the territorial sea, only in AW;95 the Dominican Republic refers to innocent passage through its AW and airspace, considers that its internal waters are AW and adds a condition to innocence of passage;96 St Vincent does not expressly address the right of ASLP when ASL are not designated;97 Vanuatu says nothing about ASLP in its AW.98 Indonesia and the Philippines were mentioned previously. Furthermore, despite tactical claims such as that of the US that ASLP is ‘well established’ in general international law99 and that Part IV “reflect[s] customary international law and codify the only rules by which a nation can now rightfully assert an archipelagic claim”,100 the practice of States whose interests are specially affected reflects too much variation for a rule of customary law to have stabilized. Even if one were to claim that the concepts of AS and AW have become customary law, it is admittedly not the case for their concrete implementation.101 UNCLOS III adopted Part IV to the advantage of AS but the sovereignty over AW, which is at the option of AS, also means that certain rights of third States must be effectively guaranteed. Most of the current AS are classified by the UN as small island developing States102 and there is no doubt that the designation of archipelagic baselines and sea lanes necessitates resources, know-how and personnel. But AS are not bereft of any assistance. The UN and some of its members offer assistance in the form of traineeships, capacity-building, direct

94  Act No. 2(2005), Arts. 9, 10(1). 95  Act No. 24(1986), Secs. 11(1) and 32(s). 96  Act No. 66–7(2007), Arts. 5, 6, 12. 97  Act No. 15(1983), Sec. 12. 98  Act No. 6(2010). 99  UN Doc.A/CONF.62/WS/37 and Add.1–2 (1983), UNCLOS III,17 Official Records, 244. 100  US Digest, Ch. 7, paras. 2, 6, in 83 Am.J.Int’l L. 559(1989). 101  This conclusion is not, as such, influenced by the package-deal nature of the UNCLOS, for nothing prevents State practice and opinio juris from transforming a rule that is part of the package deal into a rule of custom. See notably Hugo Caminos, “The Legal Regime of Straits in the 1982 United Nations Convention on the Law of the Sea”, Collected Courses (The Hague, Brill, 1987), 204–205. 102  http://unstats.un.org/unsd/methods/m49/m49regin.htm. Indonesia and the Philippines are not on the list on account of their size but Asia excluding Japan is classified as developing.

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aid or technical and legal advice.103 The reason for the discrepancy between domestic laws and UNCLOS is not always fully clear; local politics surely play an important, if not paramount, part.104 Although some laws repeat parts of UNCLOS almost verbatim,105 it is also regrettable that not all the very recent legislation is in accordance with UNCLOS. Whether, and to what extent, consultation was undertaken with the UN and interested States will require further studies; one may note that the ‘19 Rules’, a non-binding agreement between Indonesia, the US and Australia on the exercise of ASLP in preparation of the submission to IMO, incorporated Art. 53(12) of UNCLOS.106 This disappeared from the Indonesia legislation. Whether non-conformity with UNCLOS stems from lack of resources, adherence to national doctrines of sovereignty or unfortunate oversight, AS should be convinced that they, through cooperation and goodwill, have much to gain from full compliance with UNCLOS. 103  See notably http://www.un.org/Depts/los/tsc_new/TSCindex.htm, http://www.un.org/ Depts/los/nippon/index, http://www.un.org/Depts/los/TechAsst.htm, http://www. un.org/Depts/los/general_assembly/study/study2008.htm. 104  The US and its non-participation in UNCLOS is no exception. See Vincent P. Bantz, “La question de l’adhésion des Etats-Unis à la Convention des Nations Unies sur le droit de la mer”, 8 Ann. D. Mer (2003): 9. 105  E.g. Fiji[1978], Tuvalu[2012]. 106  Text in Dhiana Puspitawati, “The East-West Archipelagic Sea Lanes Passage Through the Indonesian Archipelago”, 12 Mar. Studies (2005): 140.

Chapter 19

About the Islands Antonio Remiro Brótons Islands have always exerted a great fascination on me. I do not refer to any kind of islands but to those that can be seen on a clear day from a distance of three nautical miles at one glance, the islands that can be walked about in one or two days without losing sight of the sea, the islands that fit my eyes like the shape of an attractive woman till my visual zoom gives prominence to other senses. Every morning, from the terrace of my small apartment lying on a modest cliff of the Eastern coast of the Iberian Peninsula, I aim my sight at one of those islands. Tabarca, that is its name, looks like a stranded whale. It was once inhabited when, after the second half of the 18th Century, King Charles III decided to colonize it with Genoese families rescued from another Tabarka, placed within a stone’s throw from the North African coast. They had been enslaved by the Bey of Tunis. The best King of the Spanish Bourbons thought that he could in this way, by means of fortifications and settlements on the deserted island, stop the threats of the Berbers and their raiding parties along the western Mediterranean coasts. Nowadays the island, apart from being a touristic point of interest, is also the basis for one of the straight lines that frame the peninsular perimeter according to the rules that delimit the marine areas under Spanish sovereignty and jurisdiction. Unfortunately a moderate legal knowledge is needed in order to make attractive the consideration that the island, unlike the neighbouring peninsula coast, offers the alternative of a swim in the territorial sea or in the inner waters. There are many other tabarcas, in name or concept, in the world that have been or are at present, the scene of fantastic stories and/or of intense conflicts of interests. International Law, when dealing with the acquisition of dominion titles either terrestrial or corresponding to the Law of the Sea, has emerged from the embers of stories and passions, confrontations and disputes, which jurists have dealt with like an entomologist does with a stuffed butterfly whose fluttering before it is consumed by the heat of the sun is ignored. However, the specialists on international law, who do not escape from life locked in an aseptic capsule with their stunts and legal conventions, know perfectly well that in order to seduce their captive audiences, it is not necessary to read Stevenson and his Treasure Island,1 or to visit the mysterious island of 1  R.L. Stevenson, “The Sea Cook” or “Treasury Island”, Young Folks, 1881–1882. © koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004283787_020

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Julio Verne,2 nor to evocate the filmed parabola of survivors from a planet jumbled up by the liquefaction of the polar caps, striving in the oceans in the hope of ‘discovering’ the island that was saved from the cataclysm.3 On the contrary, they are our histories, arising from the international relations and the conflicts among states that offer a rich plot to novelists and scriptwriters. If not, what can be said about piracy, about the Tortuga Islands, (Turtle Islands) toponomy and concept? Apart from the legendary treasures hidden in the islands, from Mocha to Coco, it must be remembered that, in opposition to the fiercely stereotyped tale of freebooters and buccaneers, there was a mutually binding social order, without exorbitant bonus for their captains and with the due protection for widows, orphans and crippled when children were dying in the metropolitan coal mines. The Tortuga Islands, the most famous of which was situated to the northeast of Haiti, discovered and named by Cristopher Columbus due to the shape of one of its mountains in 1492, were the territorial base of those who did not want to be a State and, even if they had wanted to, would not have been acknowledged as such, excluded by the establishment of the privilege that allowed sovereigns, as a right, to be as heartless as the pirates.4 Those sovereigns, heads of colonialism, would take those remote islands and turn them into prisons for their criminal scum, as was the case with the Diablo Island in the French Guyana, made famous by Papillion.5 But the most aristocratic prison isle has undoubtedly been that of St. Helena, in the deep Atlantic, where the greatest French Emperor, Napoleon Bonaparte, was secluded and where he died, probably poisoned.6 His confinement was a political decision derived from his condition of permanent threat to the old European order that he had once harassed. Nowadays the great powers may arbitrate an international judicial procedure for crimes against humanity; I will not say aggression because this is an inconvenient crime for the corporation of the great statesmen and it never will go beyond the couché paper.7 2  J. Verne, “L’île misterieuse”, Magasin d’education et de recreation, 1874–1875; Hetzel, Paris, 1875. 3  Waterworld, Kevin Reynolds (dir.), Universal Pictures, 1995. 4  A. Remiro Brotons, Civilizados, bárbaros y salvajes en el nuevo orden internacional (Madrid: McGraw-Hill, 1996), 172–174. 5  H. Charrière, Papillon, 1969; Papillon, Franklin J. Schaffner (dir.), AlliedArtist/Solar Productions, 1973. 6  A curious film of silent pictures, consecrated to the life of Napoleon in St. Helena, was produced in Germany, directed by Lupu Pick in 1929: Napoleon auf St. Helena. 7  A. Remiro Brotons, “El crimen de agresión en el estatuto de la CPI revisado: nasceturridiculus mus”, Estudios de DI y D Europeo en homenaje al Prof. Manuel Pérez González, t. 1, ed. J. Cardona et al. (Valencia: Tirant lo Blanch, 2012), 1115–1130.

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St. Helena had been ‘discovered’ by the Portuguese at the beginning of the 16th Century. There were no natives and the first resident was a Portuguese mutilated for treason in Goa. Its location was kept secret during many years due to its importance in the Portuguese route to the Spice Islands, but in the 17th Century it was matter of dispute between Dutch and English, who benefited from the slave labour. The English went on using it to seclude ‘enemies’ of their colonial policy, especially those in the South African cone. The opening of the Suez Channel diminished the importance of their navigation routes and they had to face the reality of a continental land three thousand kilometres away. St. Helena, together with the islands of Ascension and Tristan de Acuña are part of the British Overseas Territory, one of the fourteen non autonomous insular territories in the agenda of sixteen territories pending decolonization in the ‘Committee of 24’.8 But there are far more tragic stories in the process of adaptation between the ‘inhabited’ and the ‘known’ world of the European States. In the expedition that set out in August 1519 the Castilian fleet commanded by the Portuguese Ferdinand Magellan, who was at the time angry with his King, we can find at least three of these stories. One makes reference to the isle in the strait bearing Magellan’s name, where he abandoned the commander of one of his ships, Gaspar de Quesada and the priest Pedro Sánchez de Reina, to die later on of cold and famine. They were both implied in a mutiny that might have ended with Magellan’s life. He himself died some months after that, on the isle of Mactán, on 27 April 1521. He was killed by some natives who were angry at his arrogant and boundless eagerness to arbitrate in political affairs of those insular kinglets. Four days later, on 1st May—this is our third story—Juan Serrano, one of the two captains that had succeeded Magellan, was the victim, together with others, in Cebu, of a trap set up by the natives with the complicity of the slave that had been Magellan’s interpreter. Being unable to reach the boat that might carry him out of the island, Serrano shouted at his comrades not to attack the town, thus expecting a less cruel death. The ships were lost in the horizon while Serrano was dragged by the mob.9 Nothing was ever heard of him. Was he perhaps devoured by the natives like James Cook was by the natives in Hawaii? This may have happened because, as a native from New 8  See AG/Doc.Of. 68/23, 9 July 2013). In particular, on St. Helena, working doc.A/AC.109/2013/7, 22 February 2013. 9  The most complete and known narrative of this expedition is due to Antonio Pigafetta, one of the eighteen survivors, written in Italian. Among the most recent reprints of its Spanish version (Noticia del Primer Viaje en torno al Mundo) the edition of Ana García Herráez could be mentioned (Valencia: Grial, 1998).

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Guinea explained out of his own experience, “men taste better than chicken”.10 But it may have also been because the anthropophagi of a certain rank believed they could acquire strength and energy by eating noble parts of those people they believed to be superior. Cook had sailed up and down the Pacific, rediscovering islands that had already been glimpsed by Spaniards and he eagerly looked for the legendary and heavenly terra australis incognita that Magellan himself had thought he had seen when he sighted Tierra del Fuego and that, in that same Century, Álvaro de Mendaña had tried to locate without success. Robert Graves has written a novel about the frustrations of the noble Mendaña, who, in 1567, in pursuit of the biblical gold, actually discovered the islands, which as can be guessed, he named Salomon. He failed to return there thirty years later due to the lack of instruments to measure length. Instead, he discovered further south the Marquesas and the Santa Cruz archipelago.11 If the life and death of Mendaña (whose name, adapted to Mendana is nowadays the name of the main Avenue in the capital city of the Salomon Islands) would be a good film script, the life of his young widow Isabel Barreto, who went with him on the second expedition, would certainly offer a not less interesting sequel. She succeeded her husband, commanded the expedition and reached the Philippines, permanently confronting with the major pilot, Fernández de Quirós, in a spectral ship where only she could shine.12 She could be have been included among the icons of feminism avant la lettre as the first woman to be Admiral and Captain General of the Ocean. But her strong character was the origin of a cruelty and selfishness that do not match the peaceful and sympathetic nature of the feminist stereotype. Once in Manila she married General Fernando de Castro, who was in charge of the Galeón del Pacífico. Both went over the viceroyalties of America in between memorials and projects till their trail was lost. The Galeón del Pacífico or Nao de la China sailed from Acapulco, in Nueva España, to Manila, core of a varied trade centred on the silk and the silver Spanish coins (the US dollars of that period) since the last third of the 16th Century. The story of the Galeón that ended at the beginning of the 19th Century with the independence of the New World is striking. It is so, not only 10  A. Remiro Brotons, Civilizados, bárbaros y salvajes en el nuevo orden internacional (Madrid: McGraw-Hill, 1996), 77, 109. 11  R. Graves, The Isles of Unwisdom (Spanish ed.: Las islas de la imprudencia, Barcelona: Edhasa, 1984; Barcelona: Plaza & Janés, 1995). 12  P. Fernández de Quirós, Descubrimiento de las Regiones Australes, ed. R. Ferrando Pèrez (Madrid: Crónicas de América, Dastin Historia, 2000).

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for the time and the lives that were lost before the winds and currents of the return route were found, but for the detailed description of its shipments, shipwrecks, assaults, ventures and miseries of which the precise Crown13 bureaucracy has left us testimony. One of the two oceanic atolls of the north eastern Pacific, is placed more than six hundred miles to the southwest of Acapulco, which is the nearest mainland. It was a point of reference in the course of the Galeón. Its ‘discovery by intuition’ is attributed to Álvaro de Saavedra; he wrote this in the ship’s log on 15th November 1527: “Today there appeared many sea-birds and landbirds, and signs of land” In the place where he was supposed to be, those signs could only correspond to what was later on named, due to its topography, the island of Médanos (Dunes). Some pirates used this insignificant and hostile island as a place to await the passing of the Galeón in order to board it. One of them, mediocre and irascible, was John Clipperton, who believed he had ‘discovered’ the island and gave it his name in February 1705. It is quite regrettable that a criminal of no social standing, that died poor and forgotten in Ireland, could have perpetuated his memory in the nomenclature of the islands of the Pacific, as well as in the list of international arbitrages. An award pronounced by the limited King of Italy, Vittorio Emmanuele III, on January 8th 1931,14 giving the island to France, placed Clipperton as point of interest of the experts in International Law, although it did not remotely reach the importance of the arbitration pronounced by Max Huber some months before in the case of the island of Palmas.15 Most of these experts, including the French ones, limit themselves, ignoring the context, to mention the Clipperton award to argue about the importance of the animus occupandi, even when there is lack of effective occupation, to guarantee the acquisition and conservation of a legitimate title of dominion in certain circumstances. The French claim was based, more than on a quick sight during the Holy Week in 1711 (this is why we find the alternative name of 13  AA.VV., El Galeón del Pacífico. Acapulco-Manila 1565–1815 (México: Gobierno Constitucional del Estado de Guerrero, 1992). 14  Affaire de l’Ile de Clipperton (1931), RIAA, II, 1105. 15  Arbitral Award of 4 April 1928, Island of Palmas (Netherlands v. United States of America) (1928), RIAA II, 829. “The arbitrator’s comments on effectiveness, territorial claims based on historical grounds and abandonment are hardly capable of general application. On these questions, the decision of the Permanent Court of International Justice (PCIJ) in the Eastern Greenland Case, as well as the award rendered in the Palmas Island Arbitration, deserve far greater attention”, observes Tobias Pierling (“Clipperton Island Arbitration”, MPEPIL, II, 2012, p. 248), reiterating what, saving the reference to Palmas, Ingo von Münch wrote in the first edition of the Encyclopedia (II, p. 54).

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island of Passion), on the fact that on 17th November 1858 the lieutenant Victor le Coat de Kerveguen, when he was at half a mile from the island and on the deck of the merchant ship L’Amiral, took possession of the atoll in the name of Napoleon III. Then, without stepping on the island and without leaving any sign of sovereignty, he happily left for Hawaii, that was then a monarchy under the House of Kamehameha, and where three weeks later the French consul in Honolulu notified the fact to the Hawaiian government and published the information in The Polynesian, the local newspaper, Due to the long time that elapsed between the conclusion of the arbitral procedure (9th July 1913) and the date of issuing the decision (28th January 1931), it may be suggested that it had been drafted a long time before, even before Huber had concluded the case of the Island of Palmas, or it could have been modified considering ensuing conveniences. I have always suspected that Victor Manuel’s award, so weak in its juridical basis, was determined by political considerations linked to interests of Mussolini’s government, that had just finished the Vatican question with the Pact of Letrán (1929) and that was at that time trying to approach France.16 Against the formalism of the so called French ‘occupation’, merely virtual, and the notoriety that the arbiter wilfully conceded to the information published in the Hawaiian newspaper, Mexico could claim not only the succession in rights of the Spanish Crown, but also—face to the French inaction in forty five years—its effective occupation through a permanent garrison since 1906, during the Porfiriato, up to 1917, when the reverberation of the Revolution, joined to the effect of the tropical storms, was tragically projected on the forgotten and stocked out soldiers, their families and soldaderas, victims of scurvy, hunger and superstition in the most inhospitable of the islands, lashed by rains, hurricanes and the most torrid sun, in the middle of the unbearable squawking of thousands of birds, on a length of land about a kilometre and half and which width ranged between four and forty nine metres, and just two metres and a half over the sea, except for the volcanic rock crowned by the lighthouse erected by the Mexicans. Taking these circumstances into account, the arbitral award is merciless and the law offers in this case the most wicked of its faces. The arbitral procedure had concluded when tragic events took place. The head of the detachment, Ramón Arnaud, and the three subordinates remaining active died on May 1915, when their canoe was hit and overturned by a manta ray, when they were pursuing a ship they believed to have seen in the 16  M. González Avelar, Clipperton, isla mexicana (México: Fondo de Cultura Económica, 1992); A. Gómez Robledo, México y el Arbitraje Internacional (México: Porrúa, 1994), 105–157.

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remote horizon. Immediately, a hurricane made the situation more difficult and two weeks later Arnaud’s recent widow gave birth to his posthumous son. The name of Island of Passion was never more justified. Laura Restrepo used it as a title for her historical novel about that tiny Mexican community.17 The Indio Fernández filmed this drama in the forties, in black and white, with no success.18 A play, with music by Manuel Obregón, was written by Victor Hugo Rascón Banda.19 The drama had not ended. The only surviving adult male, illegitimate son of the governor at Colima, the negro Victoriano, making a quite personal interpretation of administrative right, thought he could assume, thanks to his military condition and his work as lighthouse keeper, the highest governing authority of the atoll. He gave himself a coup d’état and declared himself king with droit du seigneur imposing terror for two years within the reduced community of women and children that poorly survived there. This was till the widows, attracting him to the place of his worldly pleasures, hammered his head. It was the year 1917. As in one of the happiest cinematographic endings, where the audience applauds after two hours of watching dramatic events, the helpless group that had suffered endless hardships was driven to Mexico by the gunboat Yorktown from the United States. The gunboat had arrived that same day, and left the unburied body of the scoundrel20 at the mercy of pigs and crabs. The opportunity of going back to the continent had already appeared in a similar circumstance some years before, but lieutenant Arnaud together with his troop, had refused to be evacuated in a naval unit from a country that was blockading the Mexican ports and had occupied Veracruz. I have always asked myself up to which point the fact that before being destined to Clipperton the young official was about to lose his military career for cowardliness before a Court Martial, influenced on his decision now considered heroic but that was fatal for him. 17  L. Restrepo, La isla de la Pasión (México: Planeta, 1989; Madrid: Alfaguara, 2007). Also, W. Brown y Ch. Hitt, Island of Passion (London: Trafford Publishers, 2002); M.T. Arnaud de Guzmán, La tragedia de Clipperton (México: Arguz, 1982); C. Labarraque-Peyssac, Les oubliés de Clipperton (Paris: André Bonne, 1970). 18  La isla de la Pasión (Clipperton), Emilio Fernández, EMA, 1941. 19  V.H. Rascón Banda, La isla de la Pasión, music by Manuel Obregón, played under the direction of María Bonilla in San José de Costa Rica, 2000. 20  Gordon Ireland, an authority on boundaries and territorial conflicts in America, did not have his happiest day when he spoke of a Mexican garrison in Clipperton in 1860, forgotten for thirty years until a man and two women were rescued in 1890 . . . G. Ireland, Boundaries, Possessions and Conflicts in Central and North America and the Caribbean (Massachusetts: Cambridge, Mass., 1941), 319.

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It should call our attention that in an island where only Mexicans lived and died, the French flag should finally wave under the patronymic of an unsuccessful English pirate. Why would France be interested in a coral atoll, at the mercy of cyclones, in a place where only grew crabs the size of fists, thousands of sea birds, and the lineage of a pair of shipwrecked and quarrelsome pigs? The answer is: guano.21 It is noteworthy the role that the excrement of sea birds had on some juridicalinternational developments since the middle of the 19th Century, when guano became, as spices at the beginning of the Modern Age, a product of great speculative yield thanks to its condition of first and indisputable natural agricultural manure. That ended with the discovery of the chemical fertilizers; but by then, a new page had been written on Law and International relationships. Guano could only be deposited in tons on deserted and uninhabited islands under certain weather conditions and so to the Caribbean and the Pacific went all class of adventurers and greedy capitalists (that would today be called investors or entrepreneurs). The Treasury of the United States seized the opportunity to make cash, organising the registry of guano concessions, and the Congress did not doubt to adopt the Guano Islands Act in 1856, thus making the business legal. Although they did not mean to assume sovereignty over the islands just exploited by their concessionaries, unless other geostrategic considerations so advice, the respect for the principle that in old Spanish America there was no terrae nullius was discarded and the fraternal conflicts of sovereignty that the Latin American Republics were trying to solve claiming an evanescent utipossidetis, found the disbelief of those who denied them any title over islands that offered no signs of effective occupation. No less than seventy five uninhabited islands fell into the nets of the United States guano law and some others found the protection of other States without being stopped by the Monroe doctrine.22 Luis Napoleon sent a ship to Clipperton only because a commercial firm of Le Havre proposed him the business and covered the freightage. Probably the project did not go further because it was not commercially viable; the truth is that after an officer took possession of the island after sailing three days round it due to bad weather at sea with no possibilities of landing, there were no more signs of the venture until when, near the end of the century, came to Paris and Mexico the news that a company from California was there 21  J.M. Skaggs, Clipperton. A History of the Island that the World Forgot (New York: Walker & Co., 1989). 22  J.M. Skaggs, The Great Guano Rush, Entrepreneurs and American Overseas Expansion (New York: St. Martin’s Griffin, 1994).

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exploiting the guano they both considered belonged to each of them. The crew of the Mexican gunship Democrata, less cautious than that of the French ship Duguay-Trouin, landed, not without difficulties, succeeded in raising the Mexican flag on the 14th December 1897, sent the guano workers back and made a new agreement with a British company to exploit the guano. The Quai d’Orsay put forward a claim in 1898 and proposed an arbitrage that Mexico accepted eleven years after, just when the Mexican president was about to seek exile in Paris. Would Mexico have accepted the arbitrage if it had not been for the fall of the Porfiriato? Although the fact that Mexico was in possession of the island in dispute and the limited interest that could be expected from France might have let time pass, Mexico was the only Latin American country that had signed the Convention for the Pacific Settlement of International Disputes (The Hague, 29th July 1899) and the first to be a part of it (when the instrument of ratification was deposited on 17th April 1901). The terms by means of which the arbitral compromise was negotiated were more disputable as it was the election of the King of Italy as absolute arbiter, proposed by the Mexican government, if what the document signed 2nd March 1909 says is true. When the compromise was ratified, on May 9th 1911, Mexico was already part (since January 26th 1910) of the second Convention of The Hague(18th October 1907). Mexico, on the other hand, obeyed the award. After an unsuccessful attempt to buy the island, on the 22nd December 1933, and after examining possible legal getaways, the Congress amended article 42 of the Constitution, suppressing the mention of the island of the Passion which, being sub iudice, had been incorporated, either unwisely or for excess of confidence, to the Fundamental Law in 1917. Would Mexico have accepted the King’s decision, had it not been wishing to show the condition of ‘civilized’ country to the entelechy of the International community, cleaning the image of the country as a predator of papists (cristeros)? To a country with three thousand islands nearer than Clipperton, subjected to a coercive process of territory loss in the continent during the previous century, the loss of Clipperton could have seemed insignificant. The claim of nullity of the award based on a very disputable appreciation of the international rules could have been tempting, if they could have guessed the evolution of the Law of the Sea that forty years after made the atoll in dispute, placed in the middle of nowhere, the horn of plenty in marine sovereignty and jurisdiction within a radius of two hundred nautical miles. It is remarkable that today in Mexico, without any revisionist purpose, but with historic memory, there is a civil association, Amigos de Clipperton (Friends of Clipperton), trying to philanthropically spread a story that most Mexicans

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ignore. Being it an island only used for the landing of temporary official scientific expeditions, which leave their trails on the rocks,23 France will remain there unless a cataclysm takes the atoll to the abyss, something that not so long ago, was mistakenly published. In 1970 the conscientious Netherlander scholar, J.H.W. Verzjil, reported in his voluminous work International Law in Historical Perspective the tale of the submersion of Clipperton subsequent to the arbitral sentence, considering it doubtful that in case the islandre-emerged, it would ipso facto return to France.24 Guano (and turtle eggs) can still provide an additional argument in the disputes on insular sovereignty within the spectre of the manifestation of effectivités that a State may allege against another one that does not have them. We know that effectivités cannot prevail on a pre-existent dominion title, unless there is acquiescence, but when this title is not proven or is doubtful, the effectivités become relevant no matter how insignificant they may be. The fact that the inhabitants of St. Eustache, Dutch Possession, fished turtles and collected eggs in Aves island from the middle of the XVIII Century did nothing to shore up the title of the Netherlands on this island against Venezuela as successor of Spain and the first country having there an armed force. So decided Queen Isabel II of Spain in the arbitral award of 30th June 1865.25 Instead, fishing turtles and collecting eggs was very rewarding for Malaysia in its dispute with Indonesia concerning the islands of Pulau Ligitan and Pulau Sipadan, before the International Court of Justice,26 as they were other minimal effectivités observed by the Court in the cays contended for between Nicaragua and Honduras,27 or in Pedra Branca and other minor rocks, disputed between Malaysia and Singapore.28 Innocence being excluded, foresight, willingness or fortune determined the destination of these geographical accidents. Any productive activity over a piece of land permanently above water level, no matter how small its surface is, might be alleged to avoid to be considered 23  J.L. Étienne, Clipperton, L’atoll du bout du monde (Seuil 7e Continent, 2005). 24  J.H.W. Verzjil, International Law in Historical Perspective, vol. 3 (Leyden: A.W. Sijthoff, 1970), 348. 25  RIAA, II, 412; D. de Barandiarán, El laudo español de 1865 sobre la isla de Aves (San Cristóbal: Universidad Católica del Táchira, 1989). 26  Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, par. 127 ff. 27  Territorial and maritime Dispute Between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, ICJ Reports 2007, par. 172 ff. 28   Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rock and South Ledge (Malaysia/Singapore), Judgment, ICJ Reports 2008, par. 64 ff.

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as a ‘rock’ not suitable to be inhabited or to have economic life of their own. These features enjoy territorial sea, but not, unlike islands, a continental shelf or an exclusive economic zone.29 When the island/rock is situated less than four hundred nautical miles from a foreign coast, the circumstance of its qualification shall influence on the delimitation of the marine spaces of the neighbours. In the 70’s Venezuela, erring on the safe, wisely negotiated advantageous treaties with the United States of America and the European countries with overseas territories near Aves,30 but the island-microstates surrounding it have set claims that, to this day, have kept Caracas’ prodigal energy policies restrained. Aves is, on the other hand, an island that is apparently sinking, requiring concrete injections to keep it afloat, as Japan is doing with its pretended island Okinotorishima, which, in 1565, was named by its Spanish ‘discoverer’, Miguel López de Legazpi, first governor of the Philippines, Parece Vela. Okinotorishima is no more than a couple of stones coming out of the water some meter and a half in high tide and together measure eight square meters in the middle of an atoll surrounded by coral reef with an area of no more than five km. On this Japan has spilled millions of U.S. dollars to create an artificial steel and concrete structure that will allow it to claim an exclusive economic zone. This would amount to four hundred thousand square kilometres due to the oceanic status of this maritime feature. It is understandable that China disagrees when Japan tries to give island status to these two minimal rocks.31 If they were to turn into shallows, would they keep the rights (either acquired or historical) they were granted in the past? The climate change and the rising sea water levels may create havoc. The Maldives, in the Indian Ocean, and Kiribati, Vanuatu or the Marshall Islands, in the Pacific, have islands and rocks that do not surface over five meters in high tide. They are at risk of being submerged part time if the scientific forecasts (to which first-world and emerging countries’ politicians pay lip service but not money), are confirmed. In an outstanding thesis read recently at the Universidad Autónoma of Madrid, Alejandra Torres Camprubí identified no less than seventy islands and coral atolls that are in this dramatic situation in the Pacific Ocean. Interesting

29  Article 121 UNCLOS. 30  I. Morales Paul, La delimitación de áreas marinas y sub-marinas al norte de Venezuela (Caracas: Biblioteca de la Academia de Ciencias Políticas y Sociales, Serie Estudios, 1983), 123 ff. 31  See C. Tirado Robles, Japón ante el Derecho Internacional (Pamplona: Thomson Reuters/ Aranzadi, 2013), 193–198.

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questions are posed here about village relocation, identity, survival of the State, its projection and maritime borders.32 With or without climate change, the volcano eruptions have had a double and contradictory effect, both destructive and creative, on the islands over the centuries. We all know how Krakatoa burst in August 1883 scattering debris in a rain of incandescent stones and a tsunami of fire and ashes covering thousands of miles around and taking almost forty thousand lives.33 Nevertheless, the same submerged volcano gave birth to Anak Krakatau (Krakatoa’s son), in 1928. It has grown steadily and nowadays it is an island more than three hundred meters high. Volcano experts forecast that it suffers from a genetic disease and that one day it will join its fate to that of the father: burst. Fifty years before, in January 1835, the eruption of Cosigüina, in the Nicaraguan peninsula occupying one of the extremes of the Fonseca Gulf, radically altered the topography of the Gulf. A small island mentioned in some maps, such as Thomas Jeffreys’ (1775) Nautical Chart and in Vandermaelen’ map (1827), named Cullaquina, disappeared and in its place two emerged, the present Farallones de Cosigüina, already recorded in Sir Edward Belcher’s (1838)34 map. Haritiri Dipla, after writing Islands for the MPEPIL,35 received the commission to write about the new islands.36 Here the emergence of one of them in July 1831, to the south of Sicily, is recalled, a consequence, once more, of volcanic processes. The sovereignty on this island might have caused an international conflict. Rather, what actually happened could have been the plot of an Italian Comedy. As soon as word was passed of the island having emerged, the diligent English stationed in Malta dispatched a ship, baptized the new Volcano baby Graham and raised their flag. The King of the Two Sicilies, noticing its position between Sicily and Pantelaria, considered that the baby could only be his and named it Ferdinandea. The French, apostles of the menage à trois, claimed it for themselves and named it Julia. Even Spain enlisted as candidate. 32  A. Torres Camprubí, Climate Change and International Security: Revealing New Challenges to the Continuation of pacific islands Statehood (Madrid: Departamento de Derecho Público y Filosofía Jurídica, U.A.M., 2014), Part II and Table 2. 33  Among the pictures, Krakatoa, aleste de Java, Bernard L. Kowalski (dir.), American Broadcasting Co., 1969; Krakatoa, The Last Days, Sam Miller (dir.), BBC, 2005. 34  This fact was extensively addressed by El Salvador in its application for the revisión (10 September 2002) of the ICJ judgment of 11 September 1992 in the case concerning the Land, Island and Maritime Frontier with Honduras (Application, par. 94 ff.). 35  H. Dipla, “Islands”, MPEPIL, 405–414. 36  H. Dipla, “Islands, New”, MPEIL, 414–416.

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Finally, Nature, having created the problem, came to solve it: the new atoll submerged six months after its appearance. Just in case it emerges again, because it is less than ten meters below the surface, Italian divers set a trail affirming: “l’isola Ferdinandea era e restadei Siciliani”. I have read that in 1980 an airplane from the United States of America bombarded the top of the submerged island because it took it for a Libyan submarine. Se non e vero e ben trovato. The volcano did not retaliate. On the other hand, Surtsey Island, persists. It appeared ten miles from the Westmannaeijar group in 1963. Though nowadays it is half its original size due to erosion, it will apparently survive for more than a century. Only Iceland has claimed it, so there is no controversy. We may share the concept that any island emerging in the territorial sea of a State belongs to it; but considering that on the continental shelf sovereignty becomes jurisdiction, it becomes doubtful to follow the same view in this case, no matter that I sympathize with the idea of considering islands, against the law in force, natural expression of a shelf which is the projection of the coast. To propose that the new island is res nullius means to follow the game of the powerful. This thesis would moreover ruin the intelligent provisions of some maritime boundary treaties (as India-Burma, 23 December 1986)37 which establish that the new islands shall be under the jurisdiction of the State where they emerge, without affecting conventional borders. Res inter aliosacta, third States should not consider themselves bound. A new island may be the object of dispute among neighbouring States, and influence on the setting of boundaries if this issue is pending. But it should not be accepted the alteration of a boundary treaty in force nor its occupation by a third State as a title of dominion. Volcano eruptions in remote areas of the ocean may cause the appearance of ephemeral islands, as Ferdinandea, or of something that resembles an island but are actually pumice stone barges floating on the waters. The María Theresa Reef (or Tabor Island) was first seen in 1843 by Captain Taber (not Tabor) who named it after his whale ship. A similar experience was that of the Captain of the Jupiter in 1878 and that was the name he gave to the Reef he saw or thought he had seen. The Wachusset Reef was marked by the Captain of the homonymous ship in 1899. The same happened in 1902 with the Ernest Légouve Reef. The list could undoubtedly go on. None of these accidents was ever spotted again. Maybe some navigators were too long at sea, had a certain amount of alcohol in their system, wanted fame, had a strong sentimental frustration or simply enjoyed pranks. But it is quite probable that their observations were accurate, that there was an island there for weeks or months or that they 37  Article V. 1484 UNTS 173.

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thought they saw one where there was magma of floating volcanic residues meant to disappear in the short term. Cartography records these pretend islands until their inexistence is irrefutably verified. This is done out of prudence. We should not be shocked, then, or ridicule those responsible for the cartographic services as naive or lacking in rigor. Quite the opposite. It is the case, nevertheless, that thanks to the spreading of maps by Institutions as National Geographic or Google Maps, popular access to information relatively reserved before, has turned amendments into news. This happened not long ago with Sandy Island (Île de sable), mapped near New Caledonia since the end of the 19th Century, when a topographer ship of the Australian navy verified there was no island in the coordinates set in the maps. There are islands, such as the magallanica terra australis incognita, that have been a rumour, a wish, an indecipherable destination. Islands some people affirm to have seen rise through the morning mist and vanish when they set course, maybe driven away by the most formidable marine currents managed by the gods. One of these islands, the Non Trubada or Encubierta, was supposed to accompany the Afortunadas, the Canary Islands.38 It goes without saying that the most absolute happiness awaited us there. It is quite surprising, or maybe not, that the island is mentioned among the ones in the archipelago King Manuel of Portugal waived to the benefit of Spain by the Treaty of Évora, on 4 June 1519. So that the island became positive international law, as those Stock Exchange operations negotiating futures. If there is a collective responsibility, asymmetric as it may be, for the forceful moving of island inhabitants due to the climate change, the deportation others have suffered due to the most savage capitalist greed or perverse geostrategic considerations is still more reprehensible. For the Banaba (known before as Ocean Island) natives, it was a misfortune that the island was a phosphate open sky mine and that the British Phosphate Commission (BPC) set eyes on it. The same Company turned Nauru into a hole. In 1941 the BCP acquired the Rabi island, and by the end of WWII moved there (using false arguments and promises) the four thousand inhabitants from Banaba, who were then doomed to all kind of misfortunes.39 The fate of the people on the Diego García atoll (named after a Spaniard at the service of Portugal) was no better. They were victims of their privileged situation in the Indian Ocean. The Chagos Archipelago was segregated from Mauritius in 1968 by the United Kingdom, in order to maintain their 38  S. Martin, Insula de Babel (Madrid: Idea, 2007), 33–74. 39  See www.banaba.com.

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dominion after the independence of the territory. The one thousand eight hundred inhabitants were deported by the British government, who wanted the island ‘clean’ to be rented, as if it were a huge aircraft carrier, to the United States of America. They have established there a naval air station for their operations in the Horn of Africa, the Persian Gulf and the Malacca straights, and lately, into one of their privileged extraterritorial detention centres to keep suspects of terrorism. The Manichaeism that inspires the moral sense of great political leaders may explain that Mrs. Thatcher could dispute in the British Courts to keep the eviction measures against Chagossians taken by her predecessors, thus miserably violating their right to self-determination, while she emphasized the same principle (as British) for the imported Falklands population after their occupation by the United Kingdom. But the best thing any power may wish for are the uninhabited islands in an archipelago. An inch of strategic value they may have due to their geographical situation and its condition as terrae nullius, open to occupation regardless of any decolonization process, shall be alleged by the interested power. This has happened with the Malgaches Islands (the Gloriosas, Juan de Nova, Europa, Bassas da India), in the Mozambique channel, taken from Madagascar by France and nowadays included in the district of Indian Ocean Dispersed Islands, which (France says) entered its patrimony via occupation. In the face of this, what can Madagascar do, but state its protest against the occupation while the matter awaits, almost dead, in the agenda of the General Assembly?40 Uninhabited small islands and coral reefs may be included in the plans of swindlers, either covered or not, by a certain biblical or pseudo religious varnish. Thus, you may find in the web reference to a pretend Kingdom of Enen Kio, settled on Wake Island and its dependencies (Peale Island and Wilkes Island). The three of them do not amount to an area of seven km. The ‘authorities’ of the Kingdom maintain a separatist attitude founded on the visits to these islands of the Marshall natives looking for the wing of a marine bird which used to nest there, in order to escape sacrifice in ritual ceremonies, were they unsuccessful The Marshall Islands Government has denied implication of their inhabitants in this plot. As Birds of a feather flock together, the Kingdom of Enen Kios subscribed in 1997 a peace and friendship treaty with the Dominion of Melchizedek (DoM), also known as Republic of Lemuria, a domain created in 1986 with social headquarters in California which has claimed sovereignty over Karitane Island since 1994 and the administration of the Taongi Atoll since 1997. The Taongi Atoll is an actual atoll, discovered by Alonso Salazar in 1526, but no one has been able to locate Karitane Island, unless it is a promontory situated nine meters below 40  Point 60 of the Provisional Program of the 69th period of sessions (2014).

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water level south of the Cook Islands. The DoM, as a Kingdom, has ‘granted’ bank licenses and has issued passports and travel documents, among other activities. It affirms it was recognized de iure by the Central African Republic in 1993 (quite a recommendation!), that it subscribed a treaty with the Ruthenian Peoples the following year and declared war to Serbia in 1998 after recognizing the Republic of Kosovo, even before the Albanians declared their Independence protected by the United States of America and the most conspicuous members of the European Union . . . Even more sophisticated is the Project to create a paradisiac city-state in the Caribbean using the new technologies that would allow to settle it on reefs and lowlands situated between the 83° 10’ and 84° 30’ W meridians and the 19° 15’ and 18° 15’ N parallels one hundred miles away from any other State: The Principality of New Utopia, a constitutional English language monarchy which is nowadays mourning the death of Prince Lazarus, whose ashes, spread on these waters, will give new impulse to the business. One wonders how a Princedom shall obtain State status situated as it is in the exclusive economic zone of one or more States in an enclosed sea as the Caribbean is. It is one thing to be the owner of an island in compliance with the laws of a sovereign country and quite a different one to be sovereign and recognized as such by international rules and subjects. Money usually makes the former easy, but the latter requires more determination. Certainly, an uninhabited island is also a great temptation for a writer to use the castaway as parabola, as Daniel Defoe did with the most celebrated Robinson Crusoe in 1719. It is to be noted that, as in many other occasions, Defoe found part of his inspiration on the Scotsman Alexander Selkirk, abandoned by his Captain in 1703 on the most eastern island of the archipelago discovered by the Spaniard Juan Fernández in 1574, which was home to pirates for more than two centuries. The main islands, Más Afuera and Más a Tierra, 600 km. from the continent in approximately the same latitude as Santiago de Chile, took the names of the castaway and his literary alter ego less than fifty years ago. It was quite common for Captains to abandon on desert islands the members of the crew that defied their authority or were guilty of certain crimes. What was not so common was the birth of a whole community formed on a desert island by a group of mutineers. Such is the case of Pitcairn, sighted by the midshipman of this name in 1767, though discovered by Fernández de Quirós in 1606.41 Nowadays it is anon autonomo us territory administered by

41  P. Fernández de Quirós, Descubrimiento de las Regiones Australes, ed. R. Ferrando Pèrez (Madrid: Crónicas de América, Dastin Historia, 2000).

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the United Kingdom, with some fifty inhabitants, included in the agenda of the Committee of 24.42 This is the curious case of a population holder of self-determination rights originated in a mutiny, the famous mutiny on the Bounty, to which Lord Byron consecrated a poem43 and that has been depicted in no less than three Hollywood films,44 and in dozens of books which have thoroughly investigated it.45 Would Captain William Bligh and his first officer and leader of the insurrection Fletcher Christian be remembered today had it not been for the 1789 episode, while Paris was burning in the Revolution? Certainly not. They would quite probably both have developed an honourable naval career. Drama made them part of history. Bligh, who had navigated with Cook, managed the feat of sailing approximately six thousand nautical miles on a boat crowded with loyal people with only a sextant and a pocket watch, till he reached the coast of Timor. Christian, who had noticed the wrongful location of Pitcairn in the Admiralty maps, as well as its resources for human settlement, led the mutineers who wanted to follow him together with some Tahiti natives to the island. He literally burnt the Bounty to mark a fate that, against all his best wishes, would be marked by violence. They were either short of women or had too many men. The Tahitians were treated as servants. They, of course, plotted against the British. Christian was murdered on the patch he was cultivating.46 A story is told that when years after that a British officer re-discovered the island and disembarked in Pitcairn, he found a group of sloppy dressed young men who answered his questions in English. Thus, it is said H.M. officer understood that English was the language of Paradise, because, how else could it be natives could speak it? It is a pity this did not actually happen. If it had, 42  Working Doc. A/AC.109/2013/3, 11 February 2013. 43  G. Gordon, Lord Byron, The Island o Christian and his comrades (London: John Hunt, 1823). 44  Mutiny on the Bounty, Frank Lloyd (dir.), MGM, 1935; Mutiny on the Bounty, Lewis Milestone (dir.), MGM, 1962; The Bounty, Roger Donaldson (dir.), MGM/UA, 1984. 45  So, C. Alexander, The Bounty:The True Story of the Mutiny on the Bounty (London: Harper Collins, 2003). Spanish ed.: La Bounty. La verdadera historia del motín de la Bounty (Barcelona: Planeta, 2005). As historical novels, C. Nordhoff y J.N. Hall, Mutiny on the Bounty (I), Men Against the Sea (II) y Pitcairn’s Island (III), 1932–1934. Spanish ed.: El motín del Bounty (I), Hombres contra el Mar (II) y La isla de Pitcairn (III) (Barcelona: Muchnick, 2001–2002); J. Boyne, Mutiny in the Bounty, 2008. Spanish ed., Motín en la Bounty (Barcelona: Salamandra, 2008). 46  T. Lummis, Pitcairn Island; Life and Death in Eden, Pitcairn Island and the Bounty Mutineers (London: V. Gollancz, 1997).

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the answers would have been in pitkern, combining 18th Century English with Polynesian, nowadays one of the official languages of the island. What actually arrived was an American whaler, the Topaz, in 1808. When the boat sent to look for seals, wood and water was getting near a coast believed uninhabited the captain observed that a canoe served by three skilled rowers was approaching them shouting. ‘Who are they?’, the sailors asked themselves. Noting their suntanned skin and elegant shape, one of them said: “Curse them, they must be Spaniards!”.47 It is good to clarify that the long arm of the British justice reached the mutineers who did not follow Fletcher Christian to Pitcairn, and preferred to stay in Tahiti together with those members of the crew who, not being mutineers, had to stay on the Bounty for its service and for the limited capacity of the boat where Bligh was forcefully boarded. Actually, the mutineers were only eleven out of forty two people on board. However, Captain Edwards, on the Pandora, made no distinctions among the fourteen he caged to take to Great Britain, where only ten arrived alive and three were finally hanged. A few years later on the nearby Henderson, discovered by Fernández de Quirósat the beginning of the 16th Century, as Pitcairn, there was another tragic story when the men from the American whaler Essex, attacked and wrecked by a white whale, reached the shore and had to resort to cannibalism to survive till they were rescued. This happened in 1820. Thirty years later, in 1851, Herman Melville published Moby-Dick.48 My fascination for the islands I was referring to when I started with festive and idle heart this contribution to the Jubilee Book offered to my dear friend Hugo Caminos does not certainly extend to certain geographical features which, qualified as rocks in the most generous of the meaning, enjoy a territorial sea, often expanded with the complicity of shoals. No one seems to be daunted by the fact that as far back as the 11th Century the Navigatio Sancti Brandani chronicle mentioned that hell island was an isolated rock at sea where Judas (Iscariot)49 was chained. The skilful drawing of straight base lines may make a worthless rock the centre of a disproportioned perimeter for the projection of rights over the sea, the sea bed and its subsoil. This circumstance explains the increased contentiousness in the last fifty years for and around the most modest geographical 47  C. Alexander, The Bounty: The True Story of the Mutiny on the Bounty (London: Harper Collins, 2003), 347 (Spanish ed., 398). 48  H. Melville, Moby-Dick or The Whale (New York: Harper Bros. Publ., 1851). 49  It is mentioned by Umberto Eco, Storie delle terre e dei luoghi leggendari. Trad. española: Historia de las tierras y de los lugares legendarios (Barcelona: Lumen, 2013), 155.

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features which were once considered threats to navigation and cemetery for shipwrecks and unfortunate sailors. Today, there is a desperate search for historical titles and rapid and effective occupation on more or less suspicious volcanic or coral reef protuberances. In the Caribbean, for example, names such as Roncador or Quitasueño depict what people thought of them. The poet, accusing Kings of promoting “ferocious war for an extra piece of land” could not, when reciting the poem, have imagined that in our time ‘an extra piece of land’ would actually be the most insignificant rock in accordance with the laws of a sea he thought free.50 Romantic, but untrue. This contentiousness would never have existed if the sovereignty projection over sea of sterile rocks incompatible for human settlement, lacking a tree, incapable of offering refuge to the solitary ship wrecker, had been neutralized. It would have sufficed to make the nearest States, the Parties in Treaties and the international organizations for maritime cooperation responsible for guaranteeing the safety of life at sea, for articulating the means to prevent accidents by erecting lighthouses and other complementary systems. But the legal evolution, interpreted at Court, has been the opposite. What poetic license can the player of a bad script allow himself?

50  “Allá muevan feroz guerra ciegos reyes por un palmo más de tierra, que yo tengo aquí por mío cuanto abarca el mar bravío a quien nadie impuso leyes” (J. de Espronceda, “La Canción del Pirata”, El Artista, 1835).

PART 7 Navigation: Freedom and Responsibility

⸪

Chapter 20

Coastal and Flag States in Situations of Distress at Sea Giving Rise to Environmental Damage Agustín Blanco-Bazán Introduction While the thirty years passed since the adoption of the United Nations Convention on the Law of the Sea (UNCLOS) were celebrated worldwide towards the end of 2012, less auspicious proceedings marked the tenth anniversary of the worst maritime environmental casualty in Western Europe. At a Spanish judicial court in La Coruña (hereinafter, “the Court”), the circumstances of the breaking in 2002 of an oil tanker, the Prestige, were re-examined at a trial aimed at establishing the criminal and civil liabilities. On 13 November 2013 the Court acquitted the master of the ship, the chief officer and the Head of the Spanish Merchant navy from charges of committing environmental crimes. A nine months prison sentence was given to the Master for ‘serious disobedience’ for refusing during a period of three hours to allow the Prestige seawards towing insisting instead that a place of refuge should be granted.1 The sentence, now appealed by several plaintiffs, invites considerations on issues of paramount importance at the crossroads of criminal law, law of the sea and general international law, namely: The strength of force majeure as exculpatory remedy in connection with allegations of criminal acts against the marine environment; rights and obligations owed by coastal states to foreign ships in distress, in particular the duty to grant refuge; and the extent to which the duty to grant refuge should be related to the coastal State’s right to intervene beyond its territorial seas to prevent pollution damage. These issues shall be developed bearing in mind the pre-eminent operation of Jus Aequum in emergency situations beyond human control. The principle according to which a good judge decides according to what is just and 1  Sentencia de la Audiencia Provincial, sección 1 de La Coruña.

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right becomes particularly relevant in cases where force majeure (in this case consisting of distress at sea) should remove excuse those involved from any wrongdoing. Hugo Caminos’ decisive contribution to international law and law of the sea since the post-war years to present has been guided by a clear comprehension of the role of ius gentium and the general principles of international law, the application of which should always prevail in the application of the treaties and recommendations aimed at enforcing the universal premises contained in the United Nations Convention on the Law of the Sea (UNCLOS). His experience and knowledge in this regard allows him to express his views as sober, straightforward common sense with fairness at the core. The following thoughts aim at being similarly fair in the evaluation of the dilemmas frequently confronting flag and coastal states when dealing with situations of distress at sea result in pollution damage to the marine environment.

Criminal Liability and Distress at Sea

Was it really an accident? A clear answer to this question is vital to decide whether criminal liabilities can or not be established amidst situations of force majeure (tempestuous weather in the case of the Prestige). Following the occurrence of mayor environmental catastrophes caused by breaking of oil tankers during the last fifteen years, the exculpatory effect of accidents at sea is being increasingly disregarded in the case of seafarers. As a consequence, their right to be exempted from criminal liability in situations beyond their control is snubbed in favour of a concept of retribution aimed at imposing criminal sanctions without proving wilful or negligent misconduct. Basic principles of procedural criminal law are also ignored in this quest towards punishment without culpability. Seafarers are detained for periods exceeding what is strictly required for a prima facie assessment of facts and bail is either denied or provided against exorbitant amounts. At the same time seafarers under detention become the scapegoats of a public opinion instigated by politicians and activists only too eager to shout ‘guilty!’ before the passing of a judicial verdict. In this regard the wrecking of the Prestige inaugurated a trend promptly followed by the Tasman Spirit (2003) and Hebei Spirit (2007) cases. In the case of the Prestige the assessment of the force majeure situation leading to the tanker’s breaking involves a rather complex analysis of interconnected features. To start with, the master and the chief officer of the Prestige were accused of neglecting their duties of care by deciding to sail a

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s­ubstandard ship across exceptionally stormy waves. It was held that such decision implied grave negligence ante facto: in deciding to go ahead under such inauspicious circumstances the master would have acted with a temerity at odds with his duty to prevent an accident waiting to happen on account of the combination of bad weather and technical deficiencies affecting the ship’s seaworthiness. Against this accusation the Court at La Coruña could not but conclude that evidence in this regard was insufficient to establish criminal liability. To start with, a District Court in New York had already dismissed a legal action taken by Spain against the ship’s classification society, the American Bureau of Shipping (ABS) requesting compensation on grounds that the ABS had acted with recklessness and negligence in its inspection of the ship and the consequent issuing of certificates of seaworthiness. These certificates had been endorsed by the flag State in accordance with the rules contained in a multilateral treaty accepted by countries representing approximately 99pct of the world merchant fleet, namely the Convention of Safety of Life at Sea (SOLAS). Under such circumstances, it would have been very difficult for the Master to claim that the ship was substandard in order to take exception from his ­contractual duties to sail it towards its destination. Besides, the ship was navigating through a sea lane under the control of the coastal State (Spain). Accordingly, this last one would have shared some responsibility for not forbidding navigation or instructing either a delay or an alternative route. Once the alternative of culpability ante facto was removed the Court addressed the alternative of a criminal conduct committed during a situation of force majeure. This is a task where difficulty verges on the impossible because, how can wilful misconduct or serious negligence be established amidst a situation by definition beyond the control of the alleged offenders? In the case of the Prestige, lack of evidence to prove intentional or reckless wrongdoing was compounded with proof of the nearly heroic zeal invested by those involved to save the ship and prevent the leaking of oil. Even if retrospectively these efforts were found to be mistaken, no criminal liability could have been attached under such circumstances: the subjective element required to establish such liability cannot be construed post facto but on the contrary bearing in mind the mental capacity of the alleged offender to discern on his or her wrongdoings at the time of their occurrence. The Court’s decision not to incriminate the defendants came thus as no surprise to anyone acquainted with basic principles of criminal law. Much to the chagrin of those hoping to have scapegoats in jail by the Christmas of 2013, the Court repeatedly noted the lack of sufficient evidence to prove beyond reasonable doubt criminal intention: mistakes that could have been committed bona fide during

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a situation of distress simply could not be judged retrospectively as wilful misconduct or serious negligence as relevant causes of the ship’s breaking and the ensuing environmental damage. The Court’s decision to acquit the defendants from crimes against the environment reaffirms the basic principles of the exculpatory effect of force majeure in the field of criminal law: situations beyond human control are essentially factual. As such they cannot be subsumed under preconceived criteria established by written law. It is on account of this fact that the Jus strictum of written law must be corrected by Jus aequum, namely an approach guided by the Judge’s appreciation of what is just and fair in particular cases and circumstances. Judgements use expressions such as absolute constraint, or absolute and uncontrolled necessity to refer to situations where facts impose themselves over any written law. Such expressions reflect the judge’s understanding and empathy resulting of putting him or herself in the place of those involved in an accident at the time of its occurrence. There is no room for retrospective assessments aiming at declaring them guilty bearing in mind a catastrophic end-result rather than their bona fide intentions to prevent it to the best of their abilities. Georg Schwarzenberger’s explains for the exculpatory effect of force majeure by explaining that ships in distress do not conform a subject matter of jus strictum but rather as jus aequm.2 In other words, distress escapes the strict requirements of criminal responsibility by operation of the basic principle at the core of the raison d’être and justification of any legal ruling, namely equity. In the realm of equity, preconceived legal rules do not play a leading role: right legal decisions can only come out of an appropriate reading an interpretation of circumstances of each case in accordance to general principles of law and justice. Henceforth the decisive exculpatory meaning of distress in the field of criminal law: any circumstance escaping the combination of objective and subjective requirements regulated by jus strictum becomes exculpatory by operation of jus aequm. It is in this regard that the concept of nullum crimen sine legis operates as a basic requirement to impose criminal sanctions solely on the basis of a previously written law typifying illicit acts in detail and involving not only a relation of objective causality between the facts and those involved but also a subjective perception of wrongdoing. In any case where force majeure becomes the main cause of damage, only wilful misconduct or grave negligence making things worse can account as grounds to determine criminal responsibility. Negligence of a lesser kind is not enough

2  See Georg Schwarzenberger, The conceptual apparatus of international law in The process of International Law, ed. R. St. J MacDonald & D.M. Johnston (Leiden: Martinus Nijhoff, 1983).

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to remove the legal implications of an ‘accident’ to the point of sending anybody to jail. Civil, not criminal liability may be applied in such cases in order to establish liability for damage and obtain the payment of compensation normally covered under third party liability insurance schemes. Prison is out of the question.

Interaction between Flag and Coastal States in the Management of Distress Situations. The Question of Granting Refuge

While the no guilty verdict passed on all defendants seemed an obvious conclusion on account of lack of elements to substantiate either wilful or reckless misconduct resulting in damage to the environment, no proof was needed to sentence the Master of the Prestige to nine months imprisonment on account of his disobedience to immediately follow the order from the coastal State to tow the ship away from the coast. Disobedience is a crime consummated by the sole occurrence of the incriminating conduct, without need to establish the existence of any particular motivation or damaging effect external or additional to a simple negative to follow orders issued by the competent authority. Exculpation can only follow if the defendant manages to prove circumstances such the impossibility to understand an order on account of factors beyond the master’s control. In the case of the Prestige, its master did not help his own situation by justifying his delay to obey on grounds that he had to entertain consultations with the owner and the salvor. In a state of emergency located 27 nautical miles away from the coast, it was not wise to try to assert in this way the primacy of flag State jurisdiction against an instruction emanating from the coastal State. Neither did the master helped himself by trying to counteract the coastal State’s command to move the ship towards the high seas with a request to do exactly the opposite, namely to be allowed to sail towards a place of refuge in the Spanish coast. The nine months prison sentence will be commuted against the disproportionate period of nearly two years detention (out of which more than 80 days in a high security prison) the Master had to serve in Spain. Nevertheless, the guilty verdict passed on the master did not preclude considerations on the degree to which the order issued by the coastal State was supported by a careful evaluation of the distress situation as well as the preparedness to counteract such emergency. In fact, the contrary seemed to happen. The Court highlighted lack of coordination and preparedness of the coastal States thus reaffirming the existence of deficiencies that had even been acknowledged by the Spanish Prime Minister as soon as the the catastrophic consequences of the breaking of the Prestige 137 miles away from the coast

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became known. It therefore seems that the initial request by the master to be granted refuge was justified, even if there may not have been enough grounds to excuse the Master’s disobedience. Under these circumstances the reasonability of the tow away instruction was inevitably subjected to severe criticism and policy makers were compelled to face a dilemma of important implications for the development of international law and the law of the sea: in the light of the lessons learned from the Prestige disaster, should the duty to grant refuge generally acknowledged under customary law not be incorporated into treaty rules aimed at regulating the reciprocal rights and obligations of flag and coastal states in emergency situations? An affirmative answer to this question would significantly alter in favour of flag States the balance of private law interests navigating under foreign flag and the coastal States entitlement to impose upon its jurisdictional waters a public law regime in particular in connection with the protection of its natural maritime resources. As if frequently happens when potentially conflictive situations confront international shipping with coastal State interests, regional initiatives started proliferating at a European level thus creating the risk of discriminatory unilateral regional actions affecting global commercial navigation. Unilateral prohibitions for single hull ships entry into jurisdictional waters of some countries in the European Union were compounded with proposals for the establishment of severe restrictions around the west coast of Europe under the aegis of a scheme applicable to sea zones particularly exposed to pollution known as ‘particular sensitive sea areas (PSSAs)’. Proposals for the establishment of a Western European PSSAs were submitted at the International Maritime Organization (IMO), the sole UN specialized agency with a mandate to issue global rules for the safety of navigation and the prevention of marine pollution from vessels. IMO was also requested to to consider whether the barricade of initiatives aimed at protecting the interests of coastal States should not be counterbalanced with the adoption of rules aimed at regulating the customary law principle of grating refuge to ships in distress. The prompt adoption of non binding guidelines on the subject by the IMO Assembly in 2003 was followed by a debate on whether the international community should not go further and develop clear treaty law regulations, rather than simply soft law recommendations. Although a concrete proposal in this regard made at the Legal Committee of IMO failed to achieve the consensus required from flag and coastal States and representatives of the maritime industry, the IMO’s post Prestige initiatives in the field of places of refuge merits an evaluation on account of its significance as initiative to further develop international law on a question of vital importance to reconcile the interests of flag and coastal states in the prevention of environmental catastrophes at sea.

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IMO Guidelines on Places of Refuge

As is normally the case of IMO resolutions, Resolution A.949(23) on “Guidelines on places of refuge for ships in need of assistance” adopted by the IMO Assembly on 5 December 2003 contains recommendations of a technical, rather than political kind. Advice is provided to Governments, shipmasters, shipping companies and salvors on how to respond in a complementary and organized way to distress situations in which the granting of places of refuge may become a substantive issue. Nevertheless the Preamble betrays an understanding of the potentially opposing rights and obligations confronting flag and coastal States it declares as the main purpose of the Guidelines to provide answers “the need to balance both the prerogative of a ship in need of assistance to seek a place of refuge and the prerogative of a coastal State to protect its coastline.” Is there any way to regulate this balance by establishing clear rights and obligations for all parties involved? Up to a certain point the reference to the need to achieve a ‘balance’ of ‘prerogatives’ acknowledges that, at most, coexistence rather than agreement can be achieved. In this regard the Guidelines explicitly acknowledge that when “permission to access a place of refuge is requested, there is no obligation for the coastal State to grant it” (3.13). However, they also indicate that “the coastal State should weigh all the factors and risks in a balanced manner and give shelter whenever reasonably possible.” In the light of such a comprehensive assessment “the coastal State should decide to allow or refuse admittance, coupled, where necessary, with practical requirements” (idem). The recommendation to weight all factors and risks and for the costal State should give shelter whenever it reasonable possible reflects the widely accepted view that the obligation to provide shelter to ships in distress is an old and well known principle enshrined in international customary law. Necessarily, this principle implies an obligation for the coastal State to deny refuge only if it has good reasons to do so. However, the irruption of environmental law in the field of maritime law and law of the sea has decisively modified the features of the right of a ship to be granted refuge and that of the coastal State to deny it. In the past no ship would pose the environmental risks as modern supertankers do today and, accordingly, the coastal State’s excuses not to grant refuge were extremely limited. Nowadays, the coastal State’s right to prevent environmental damage to its coastal interests and living and non-living resources up to 200 miles from the baselines of its territorial sea has considerably expanded the limits of its prerogative not to grant refuge: depending on the criteria used, reasons for denial can vary from well proven facts to extremely general and

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unfounded fears or apprehensions not supported by technical evidence. This seems to have been the case of the Prestige, on account of the erratic behavior by coastal authorities and a lack of preparation to deal with emergencies. The coastal States authorities decided to send the ship away thinking that the further from the coast the better the chances to protect coastal interests. In the event the contrary happened and not only Spain but also its neighbors were visited by the worst environmental maritime catastrophe ever to happen in Western Europe. The background of this traumatic experience gives weight to the recommendations contained in the IMO guidelines on the need to evaluate ‘all factors and risks’ and, depending of this evaluation to grant of refuge when it is reasonable to do so. In cases where refuge is denied, the Guidelines propose that the denial must be based on clear grounds constructed on the basis of a positive and proactive reasoning: simple fears, or denials ‘just in case’, are not enough. In the end basic principles of environmental law involve a concept of solidarity with neighbor states and above all a commitment to the global marine environment in general. This commitment is incompatible with ‘go away’ command given without a technically substantiated explanation.

The CMI Proposal for Treaty Rules on Places of Refuse

Even before the breaking of the Prestige the issue of places of refuge became part of the agenda of the the IMO Legal Committee in the wake of the Erika and the Castor incident. Main legal issues at stake was the provision of financial security to cover coastal States’ expenses and/or compensation issues in connection with the granting of refuge. Following the Prestige incident, it fell upon Spain the task of highlighting the risk of coastal State’s exposure to claims of unlimited liability in case refuge was granted to ships in transit not insured in accordance with IMO multilateral treaties establishing limitation of liability for oil pollution damage, in particular the Civil Liability Convention 1992 (CLC), the Fund Convention 1992. At the time the Bunkers Convention 2001 was not yet in force. Neither was another important treaty establishing limits of liability and compensation for damage caused by substances other than oil, namely the Hazardous and Noxious Substances by Sea Convention 1996 (HNS), a treaty in respect of which conditions for its entry into force still remain to be met at the moment of writing these lines. Spain expressed the view of many coastal States in the sense that rather than adopting treaty rules establishing the obligation to grant refuge, priority should be given to the full universal implementation of the treaties

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above referred, which regulate the contracting by the ship owner of compulsory insurance. Against the existence of such guarantees it would be easier for coastal States to grant refuge. Even though, the prerogative not to do so should remain as a fall back position, as part of a sovereign right of any State to evaluate risks in accordance with the circumstances of each case before deciding on whether foreign ships should be admitted to its internal waters.3 The counteroffensive in support of treaty rules regulating the obligation of coastal States to grant refuge was led by the CMI, the preeminent non-­ governmental organization with observer status at IMO. Since 1897 the CMI has sponsored initiatives by maritime lawyers and representatives of the maritime industry in the development of international private law in the field of commercial navigation. The adoption of the most important treaties in this regard has been preceded by the presentation of CMI drafts considered by conferences convened by the Government of Belgium before IMO’s time (the so called ‘Brussels conventions’) and by IMO after the Torrey Canyon incident in 1967. Following the adoption of the IMO Guidelines on places of refuge, CMI reaffirmed its leading role as a consultative body for the IMO Legal Committee by presenting for the consideration of this last one a draft treaty instrument on places of refuge to be adopted either as an amendment to an existing IMO treaty or as a new self standing one.4 Even if the Legal Committee bowed to the pressure of coastal State interests and decided not to accept this proposal, its main features are worth considering. In contrast to the assertion in the IMO Guidelines that the granting of refuge is a prerogative of the coastal State, the CMI submission affirms the existence of a right, according to customary international law, for a vessel in distress to be granted a place of refuge. The submission notes that this right “no longer appears to be recognized by many States as an absolute right and has become clouded.”5 Although no specific reason is mentioned by the CMI, it is plausible to suggest that the progressive clouding of right to be granted refuge is the result of the irruption of the environmental law in the field of maritime law and law of the sea. Until the second half of the XXth century the right to seek and obtain refuge had not been confronted with the sovereign rights of coastal States to protect their coastal interests and natural living and non-living resources from pollution up to 200 miles away from the coast. It was to ensure this protection 3  IMO document LEG 87/7/1. 4  In IMO document LEG 89/7 issued on 19.8.2004 the CMI reports on its deliberations on this subject. The CMI draft treaty is submitted in document LEG 91/6 issued on 24 March 2006. 5  IMO document. 89/7.

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that coastal States felt entitled to restrict conditions to grant refuge, in particular to oil tankers. Bearing in mind this new situation created by the need to reconcile the right of commercial ships to obtain refuge and those of the costal State to deny it on environmental considerations, the CMI draft proposed the following solutions:

• • • •

The right under customary international law for a ship to obtain refuge should be incorporated into treaty law as a presumption. To rebut this presumption the coastal State should prove why under certain circumstances it is reasonable to refuse access. A State granting refuge should be immune from prosecution, unless it could be proved that it acted unreasonably. A State refusing refuge should be liable to compensate other States or third parties in case it was unable to prove that the refusal was reasonable. Even if the draft had been accepted in principle by the IMO Legal Committee, lots of work would have been needed to further elaborate on the concept of reasonability, or lack of it, in particular as a ground to exonerate the coastal State granting refuge from liability unless claimants demonstrated unrea­ sonable behavior. Not only would it be extremely difficult to establish an enforceable concept of State liability towards other States or interested parties in other jurisdictions. Further difficulties would arise domestically: how could a coastal State oppose an exemption from liability regulated in an international treaty to claimants domiciled in its own territory? Claimants domiciled in the State granting refuge could adduce that even if such granting was reasonable, they should not be obliged to bear the consequences of that State’s magnanimity towards the ship owner or other neighbor states. Domestic claimants around a place of refuge would have to be compensated for any pollution damage not only by the ship owner but, if such compensation was not enough also by their own State. How could this last one exculpate itself from such responsibility on grounds that it had acted reasonably in acceding to grant refuge? Of particular importance to assess the different interests at stake depending on whether claimants are domiciled or not in a State granting refuge is a provision in the CMI draft requiring coastal States to designate place of refuge in advance, although not necessarily to publicize them. The designation a priori of places of refuge is political burning issue on account of the social conflicts that such designation could provoke following the reaction of those residing or working in the designated areas. The alternative to keep then ignorant about designations done in secret only increases the admissibility of claims made

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by citizens on the basis that they did not know of, were never consulted, and accordingly did not have the right to oppose to, the designation. An evaluation of the failure to cross the line between the IMO guidelines and the alternative to go further by means of adopting treaty law regulations leads to conclusions familiar to any exercise involving the possibility of surrendering State sovereignty through international treaties. States will be keen to restrict sovereign rights by treaty only if they can afford to do so bearing in mind the political implications involved. In the case of places of refuge discussions at IMO showed that it would be very difficult for coastal States to renounce to their prerogative to grant or not refuge without arising strong domestic opposition.

The Obligation of Granting of Refuge as a Consequence of the Right of Coastal States to Intervene beyond Their Territorial Sea

The reciprocal balance of flag and coastal State’s rights and obligations in connection with the granting of access to places of refuge to vessels in distress can only be properly understood against the changing patterns of a coastal State entitlement heavily contested at first but finally incorporated into treaty law during the second half of the past century, namely the coastal State’s right to intervene beyond its territorial sea to counteract the polluting effects of a maritime casualty. Until the breaking of the Torrey Canyon off the coast of Brittany in 1967 traditional customary law was interpreted as preventing the coastal State from interfering with the navigation of foreign ships taking place beyond its territorial waters. This ‘hands off’ status meant that the coastal states’ rights and obligations in situations involving a foreign ship in a distress situation beyond territorial waters would be addressed in accordance to principles of jus gentium publicum. Bearing in mind these principles, it was peacefully accepted that coastal states were obliged in accordance to customary law to intervene beyond their territory to save lives. However, what about the need to protect the marine environment in cases where the ship in distress had the potential of becoming a source of widespread pollution? It is in this last regard that the Torrey Canyon incident became a ‘first’. It radically demonstrated the shortcomings of well accepted principles of law in the face of an entirely novel situation, both in its causation and its damaging effects: the Torrey Canyon was the first man made environmental catastrophe at sea and the damage would have to be measured not in terms of human lives,

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cargoes or the ship lost but by the devastating effect of the cargo released into the sea. Being a ‘first’, no rules of consuetudinary law could be claimed as a justification for State intervention in the high seas other than the need to counteract damage to coastal interests then conceived mainly as within a narrow scope of artisanal fishing and tourist resources. Coastal State’s powers to take measures against marine pollution beyond the territorial sea are nowadays so widely accepted that many would find difficult to understand the hesitation of the British authorities to immediately resort to action when the Torrey Canyon run aground on 18 March 1967. When ten days later the wreck was bombed and the oil made to blaze, the initial spill had progressed to become a mayor environmental catastrophe: nearly 100,000 tonnes of crude oil had been spilled into the sea around the South Coast of England and the West Coast of France. The fact that the intervening measures did not interfere with the territorial jurisdiction of other States did not allay the possibility of legal struggles. To start with, the delay in intervening had resulted in damage not only to the South Coast of England but also the West Coast of France. The UK law could only provide for a plausible explanation of the delay to intervene based upon Admiralty Law: public authorities should only intervene in a subsidiary way, namely after allowing some time for action by those representing the private interests involved in the casualty, in particular the owner and salvor. In other words, the urgency for preventing damage to the marine environment adjacent to the coast was not straightforwardly recognized as a public law and order issue taking immediate precedence over the deliberations of private parties on how to best deal with their own interests. However, even if the UK could not be accused of violating any rule of law by delaying any intervention beyond its maritime boundaries, the fact that in the end it was compelled to do so raised questions on whether more prompt action could not have been taken in consultation with France. The rights and obligations related to coastal State intervention would also have to be balanced with those of the flag State and the private parties involved in the incident, such as the ship owner, master, salvors and insurers. All these issues demonstrated that it was not enough to invoke a consuetudinary right to self-defence (protection of the coastal State’s fishing and tourist industry) to justify intervention beyond the territorial sea. Concrete and detailed international rules would be needed and, as a result of deliberations at IMCO (now IMO) initiated soon after the incident, it was finally decided that these rules would have to be included in a multilateral public law treaty. The caution and care invested in the consideration of the issues at stake at the International Conference convened in 1969 by the then IMCO is reflected

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in the International Convention relating to the Intervention on the High Seas in Cases of Oil Pollution Casualties, 1969 (the “Intervention Convention”). In this pre UNCLOS treaty the exercise of the right of intervention by the coastal State beyond its territorial seas is restricted to the need to prevent a grave and imminent danger in face of a casualty which may be reasonably expected to result in major harmful consequences.6 In the face of such an emergency, the Convention imposes the obligation to consult with other states, in particular the flag State, before the intervention takes place, unless ‘extreme urgency’7 compels to intervention without consultation of any kind. Intervening measures must be proportionate to actual or threatened damage, shall not go beyond what is reasonable necessary and shall cease as soon as its end has been achieved. Measures “shall not unnecessary interfere with the rights and interests of the flag State, third States and of any persons, physical or corporate concerned.”8 They should also be notified without delay to the States and all known physical or corporate persons concerned, as well as to the SecretaryGeneral of IMO.9 Against the restrictive legal background regulated by the Intervention Convention, the right to intervention included years later in UNCLOS article 221 seems to be more flexible. Rather than defining the right of intervention as an exception to the rule of non-intervention, UNCLOS seems to acknowledge the existence of such right in terms of both customary and conventional international law. Certainly, the reference to conventional international law10 implies a recognition of the rules incorporated in the Intervention Convention. However, what about customary law? Here it seems that unlike the Intervention Convention, UNCLOS explicitly recognizes the right to protect coastline or related interests and a marine environment extending well beyond the territorial sea as enshrined in customary law. It then follows that coastal States may intervene beyond their territorial sea irrespective of whether or not they are party to the Intervention Convention or indeed, to UNCLOS:

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If they are party to the Intervention Convention they should apply the mechanism of consultation and notification regulated by this treaty. If they are not party to the Intervention Convention but are party to UNCLOS, they may not be restricted by the rules therein contained on consultation 6  Article I.1. 7  Article III, (d). 8  Article V.2. 9  Article III (f). 10  See UNCLOS, article 221, 1.

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and notification but should nevertheless notify and consult by operation of UNCLOS article 198 (Notification of imminent or actual damage). States not party to UNCLOS or to the Intervention Convention could also apply one or both of them in accordance to customary law, in this case defined by reference to the rules contained in these two widely accepted treaties.

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The major difference between the Intervention Convention and UNCLOS 221 reflects the consequences of the incorporation into UNCLOS of the notion of Exclusive Economic Zone (EZZ). While the Intervention Convention defines the right to intervene beyond the territorial sea as a right of intervention ‘in the high seas’, UNCLOS article 221 defines the coastal State’s right to intervene ‘beyond the territorial sea’ without any further distinction, thus including not only the high seas but the EEZ as well. The importance of this distinction is obvious. In the EEZ the hybrid status of coexistence of sovereign rights over natural resources with a residual high sea status otherwise, works in favour of a robust type of coastal State intervention: up to 200 miles from the coastline the coastal State can intervene to protect resources acknowledged to be under its sovereignty. Bearing in mind the preceding considerations, it can be concluded that the restrictive procedural scope regulated by the Intervention Convention can be harmonized with the more ample one regulated in article 221 of UNCLOS so as to optimize the exercise of the right of intervention by coastal States beyond their territorial sea in cases of maritime casualties expected to cause major harmful consequences. Can it also be concluded that the operation of UNCLOS and the development of environmental maritime law has rendered obsolete some procedural steps of notification and consultation regulated by the Intervention Convention? After all, the rights of coastal States to intervene is at present not restricted as it was at the times of the Torrey Canyon. Why should now the coastal State be compelled to a seemingly cumbersome procedure of evaluation and consultation? In response it can only be noted how departure from the procedures imposed by the Intervention Convention and loosely reproduced in UNCLOS lead to a major shortcoming in the case of the Prestige. Even if the coastal States affected had been parties to both treaties for many years, the fact is that they were still unprepared to consult and help each other in accordance to the procedures prescribed in the Intervention Convention and the obligations to consult and cooperated regulated by UNCLOS article 198. Had a system of consultation been in place in accordance with both treaties, the granting of refuge would have come as a

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relevant regional matter as soon as distress was notified, and the decision on whether to grant or not refuge to the vessel in distress would not have been left to the sole criteria of the Spanish authorities. Particularly striking in the case of the Prestige seems to have been the lack of coordination between Spain and Portugal. In a provokingly ironic way the Court in La Coruña notes the reaction of ‘our friendly Portuguese neighbours’ who sent a warship to interdict the entrance of the convoy towering the the Prestige in the Portuguese EEZ; and France does not seem to have been particularly proactive in spite of the lessons that should have been drawn following the Torrey Canyon, the Amoco Cadiz, and the Erika. Under such circumstances the search for culprits amidst seafarers and ship owners should not prevent coastal States from considering their own shortcomings. It is bearing in mind this background that the right to intervention by coastal States beyond their territorial sea should be reappraised not solely as an expression of coastal State sovereignty governed by its domestic law, but also as conditioned by a craftily regulated set of rules contained in the two universal treaties above referred. The need to consult and coordinate action with neighbouring states is an essential constituent of this right, which within wider environmental context established by UNCLOS should be exercised not only bearing in mind the need to protect the natural resources of the intervening State but also those of neighbouring States and the high seas. In fact, prevention of marine pollution from vessels cannot be effectively implemented unless protective measures extend beyond the conventional frontiers established under the concept of ‘sea zones’. Within this wide environmental context the right of intervention becomes inevitably linked to the obligation to grant refuge. Certainly, this last one is an obligation conditioned to the preeminent right of any coastal State to decide on the features of its intervention bearing in mind primarily the need to defend its coastal interests and maritime resources within its territorial sea and its EEZ. However consideration should be given to a regional and global lesser evil. Should the coastal State not be prepared to risk some environmental damage more likely to be contained in a place of refuge in order to avoid greater damage to neighbouring countries and the wider marine environment? Solidarity and universality, rather than the exclusive protection of domestic interests should be at the core of any environmental set of regulations. In this regard the IMO Guidelines explain that the availability of places of refuge is normally the best method to prevent the breaking of a ship or, if the breaking cannot be avoided, to reduce the damage to a semi enclosed area were clean up operations can work more effectively.

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Conclusion It is in against the patron of global environmental protection aimed at by the Intervention Convention and enhanced in UNCLOS that coastal states’ duties to provide refuge should be measured. The lack of support for an international treaty regulating such duties does not imply that they can be ignored by means of asserting denial of refuge as a discretionary decision to be taken without the need of assessment, consultation and cooperation. Denial of refuge involves a proactive evaluation of circumstances and moreover a search for workable alternatives to prevent damage to the marine environment: the right to deny refuge does not mean that the coastal State can simply wash its hands. In other words, a coastal State cannot tell the ship ‘it’s your problem’ or ‘it’s a problem you have created and therefore I have nothing to do with it’. Any action by the coastal State designed to compel the ship to ‘go away’ without an assessment of the environmental consequences and without providing alternative assistance could be construed as either wilful intention or grave negligence from the side of the coastal State in order to evade its obligations to protect a marine environment that cannot be conceived as restricted to the boundaries of its territorial jurisdiction. Furthermore, the obligation for the coastal States to help removing the situation of distress persists, even in cases where, on account of paramount coastal interests, the coastal State is unable to offer a place of refuge. No treaty or domestic law can be properly enforced without bearing in mind these obvious expressions of good faith at the core of any legal order, be it national or international. Fairness, reasonability and equitable interpretation of rights and obligations should always govern the actions of flag coastal and port states. In his already quoted article published in 1983, Georg Schwarzemberger noted the existence of an Ocean Model which would enable the expansion of Jus Aequum to the high seas.11 Perhaps he was echoing the impact produced by the adoption of UNCLOS as the first treaty regulating a truly universal order. The utopia of a constitution valid for all states was discarded shortly after the end of the end of WWII, but we have a universally accepted Constitution of the Seas. Whenever confronted with the need to prevent pollution amidst a situation of navigational distress, costal and flag States

11  See Georg Schwarzenberger, The conceptual apparatus of international law in The process of International Law, ed. R. St. J MacDonald & D.M. Johnston (Leiden: Martinus Nijhoff, 1983), 691.

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should exercise the rights recognized by this Constitution bearing in mind its most important provision: “Parties shall fulfil in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction and freedoms recognized by this Convention in a manner which would not constitute and abuse of right” (UNCLOS, article 300).

Chapter 21

Law of the Sea, Naval Blockades and Freedom of Navigation in the Aftermath of Gaza Flotilla Incident of 31 May 2010 Nilufer Oral The United Nations Law of the Sea Convention (LOSC)1 when adopted in 1982 was heralded as the “constitution for the oceans.” The preamble with the words “[p]rompted by the desire to settle, in a spirit of mutual understanding and co-operation, all issues relating to the law of the sea . . .” conveyed its seemingly far-reaching ambit of application (Emphasis added). The Convention further expressed its direct relationship to the United Nations Charter stating, Believing that the codification and progressive development of the law of the sea achieved in this Convention will contribute to the strengthening of peace, security, co-operation and friendly relations among all nations . . . in accordance with the Purposes and Principles of the United Nations as set forth in the Charter. The Convention did not, however, expressly limit its application to time of peace or indicate its status in time of war or armed conflict at sea. The only hint is found in the last paragraph of the preamble affirming that, “matters not regulated by this Convention continue to be governed by the principles of general international law.” Despite the silence of the Convention, the general view is that the law of armed conflicts at sea is implicitly excluded by the language ‘matters not regulated’ by the Convention, and would presumably continue to be regulated by other sources of international law, such as the United Nations Charter, the Geneva Conventions and their protocols as well as customary rules of international law.2 1  United Nations Convention on the Law of the Sea, (Montego Bay), 10 Dec. 1982, 1833 UNTS 3 2  See, United Nations Convention on the Law of the Sea 1982: A Commentary 89, Vol. II, ed. Satya Nandan & Shabtai Roseanne (NY: NU, 1993); Bernard H. Oxman, “The Regime of Warships Under the United Nations Convention on the Law of the Sea,” 24 Virginia Journal of International Law (1983–1984): 811–863; Brian Wilson and James Kraska, “American Security and Law of the Sea,” 40 Ocean Development & International Law (2009): 268–290, 277–278.

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The need for a clear understanding of when application of the law of the sea applies, under customary international law and as codified in the 1982 LOSC is especially vital for preservation of freedom of navigation in the high seas and the long-standing customary international rule of the exclusive jurisdiction of the flag State on the high seas, long-standing norms of international law, codified in both the 1958 Geneva Convention on the High Seas3 and 1982 United Nations Convention on the Law of the Sea.4 Exceptions have been narrowly enumerated in both instruments and not expanded upon by state practice. The right of freedom of navigation on the high seas without interference by third states is a preemptory norm of international law and exceptions must be well grounded in international law. For example, according to customary international law high seas interdiction for enforcement of a naval blockade, a method of inter-state warfare and an exercise of the right of self-defense under article 51 of the Charter of the United Nations is permitted. Even though such exception is not expressly enumerated as an exception to high seas freedoms in the 1982 LOSC, naval blockades can be enforced against merchant vessels under specific circumstances. However, as will be shown in this Chapter, state practice has not expanded naval warfare methods, such a blockades, to be used in non-interstate conflict or those involving non-state actors. The current legal framework for naval warfare rests upon rules of customary international law as reflected the San Remo Manual, a non-binding document prepared by international law experts.5 The need for greater legal certainty in clarifying the relations between the application of the rules of peace time as reflected in the law of the sea and those of armed conflict was illustrated on the 31 May 2010 when Israeli military forces interdicted six passenger vessels carrying a total of 600 civilian activists and 10,000 tons of humanitarian assistance to the Gaza Strip, which was under both a naval and land blockade imposed by Israel.6 (Hereinafter “Gaza Flotilla incident”). The Israeli Defense Force (IDF) interdicted the vessels with the use of force in the high seas of the eastern Mediterranean Sea some 72 nautical miles from the nearest coast, and 64 nautical miles from the blockade zone declared by Israel. All six vessels were diverted to the Israeli port of Ashdod where six hundred passengers were 3  Geneva, 29 April 1958, 450 UNTS 12. 4  Montego Bay, 10 December 1982, 1833 UNTS 3. 5  The San Remo Manual on International Law Applicable to Armed Conflict at Sea (ICRC, 1994). 6  The naval blockade was declared in 2009 to prevent delivery of goods that could be used by Hamas against Israel. See Notice to Mariners No. 1/2009. Available at http://asp.mot.gov.il/ en/shipping/notice2mariners/547-no12009.

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detained. Nine passengers lost their lives and many more other passengers were injured.7 Israeli justified the military interception on the high seas and use of force based on the customary international law of blockade. The Gaza Flotilla incident raised many questions of international law and generated different views as to it lawfulness as reflected by two United Nations Reports8 and writings of jurists on the issue.9 This Chapter will not examine the legality of the naval blockade imposed by Israel or the treatment of the passengers after the IDF take-over under international law. The Gaza Flotilla incident did, however, highlight gaps and uncertainties in the existing international law framework regarding naval blockades and their enforcement in conflicts in the high seas against non-military vessels exercising freedom of navigation rights. Consequently, this creates a dangerous potential for the expanded use of naval blockades in conflicts that do not clearly fall into the category of international armed conflict (IAC) or even non7  See following reports for factual details: Turkish National Commission of Inquiry, “Report on the Israeli Attack on the Humanitarian Aid Convoy to Gaza on 31 May 2010 (February 2011) available at http://www.mfa.gov.tr/data/Turkish%20Report%20Final%20-%20 UN%20Copy.pdf; The Public Commission to Examine the Maritime Incident of 31 May 2010 (Turkel Commission report available atwww.turkel-committee.gov.il/; UN Doc. A /HRC/15/21 Human Rights Council Report of the international fact-finding mission to investigate violations of international law, including international humanitarian and human rights law, resulting from the Israeli attacks on the flotilla of ships carrying humanitarian assistance. (27 Sept. 2010.) Secretary General’s Panel of Inquiry on the 31 May 2010 Flotilla Incident (September 2011), Available at http://www.un.org/News/dh/infocus/middle_east/Gaza_­ Flotilla_Panel_Report.pdf; and 8  In response to the diplomatic crisis created by the incident UN Secretary General Ban Ki-Moon established a United Nations Panel of Inquiry chaired by Sir Geoffrey Palmer. Secretary General’s Panel of Inquiry on the 31 May 2010 Flotilla Incident (September 2011), Id. Parallel to the UN Panel of Inquiry the UN Human Rights Council conducted its own fact-finding mission pursuant to UNGA resolution 14/1 of 2 June 2010 as presented in its final report. Id. The two reports arrived at different conclusions concerning the lawfulness of the naval blockade but agreed as to the unlawful enforcement by Israeli forces on the high seas. 9  For example, see Douglas Guilfoyle, “The Mavi Marmara Incident and Blockade in Armed Conflict”, 81 British Yearbook of International Law (2011): 171–223; George Bisharat, Carey James and Rose Mishaan, “Freedom Thwarted: Israel’s Illegal Attack on the Gaza Flotilla, 4 Berkeley Journal of Middle Eastern and Islamic Law (2011): 79–110; See Russell Buchan, “The Palmer Report and the Legality of Israel’s Naval Blockade of Gaza,” 61 International and Comparative Law Quarterly (2012): 264–273; James Kraska & Raul Pedroza, International Maritime Security Law (Leiden: Martinus Nijhoff, 2013): 895–899; Peter Berkowitz, Israel and the Struggle Over the International Laws of War (Stanford: Hoover Institution Press, 2012), Regina Goff, “The Legality of Israel’s Blockade of Gaza”, 8 Regent Journal of International Law (2011): 83.

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international armed conflict (NIAC), and threatens the peaceful uses of the sea as stated in the 1982 LOSC.10 This chapter will examine the existing international legal framework for armed conflicts at sea and the 1982 United Nations Law of the Sea Convention, naval blockades the United Nations Charter, customary international law and state practice, concluding that there is a need for States to re-examine the existing rules of naval warfare, in particular naval blockades, as applied against non-military vessels and civilians or non-state actors in relation to the law of the sea as codified in the 1982 LOSC.

United Nations Law of the Sea Convention and Military Activities at Sea

Despite the intentions of the negotiators of the 1982 LOSC to settle all questions related to the law of the sea, many questions continue to remain controversial, including the relationship between the 1982 LOSC and military activities at sea.11 As noted by Churchill and Lowe [t]he United Nations conferences on the Law of the Sea consciously avoided negotiation of the rules applicable to military operations on the seas. Consequently, the extent to which rights and duties under the conventions are modified or suspended in time of war is a controversial matter, compounded by the uncertainty of the Law of Treaties on this point.12 Another area of uncertainty, for example, is that states continue to differ on the scope of freedoms of navigation for warships in the exclusive economic zone.13 Some take the position that the coastal State retains the competence to regulate military activities of foreign warships in their coastal zone14 and o­ thers 10  See Lt. Com. James Farrant, “The Gaza Flotilla Incident and the Modern Law of Blockade,” 66 Naval War College Review (2013): 81–98. Farrant was unable determine whether state practice supports the application of traditional blockade to NIAC. Id., at 94. 11  See James Kraska, Maritime Power and the Law of the Sea (Oxford: Oxford University Press 2012); Kraska & Pedroza, op. cit. 12  Robin R. Churchill & A. Vaughan Lowe, The Law of the Sea (Manchester: Juris Publications, 1999), 421. 13  See Guidelines for Navigation and Overflight in the Exclusive Economic Zone: A Commentary (Tokyo: Oceans Policy Research Foundation, 2006). 14  For example, upon signing and ratification of the 1982 LOSC Brazil included the following declaration: “The Brazilian Government understands that the provisions of the

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adopt the contrary view that the freedoms of the high seas apply equally in the exclusive economic zone with the sole condition of due regard for the rights of the coastal State to explore and exploit its natural resources.15 The preservation of the freedoms of the high seas, one of the key crosscutting issues of the negotiations remains as one of the underlying reasons for this divergence of views. During the negotiations preservation of freedom of navigation was of paramount importance for the maritime states, especially the Super Powers of that time (i.e. US and USSR), and particularly for military activities. The creation of a new transit passage for international straits and the preservation of high seas navigation in the new EEZ were the direct result of this concern.16 However, an area that remained less defined in the LOSC concerned its relationship with the international law of naval warfare and the application of the law of neutrality to merchant ships and other neutral parties.17 Linkage to the Charter of the United Nations can be found in several provisions of the LOSC. The mandate for “peaceful uses of the sea” as articulated in article 301 of the LOSC requires States Parties when exercising their rights and performing their duties under the Convention to refrain from

Convention do not authorize other States to carry out military exercises or manoeuvres, in particular those involving the use of weapons or explosives, in the exclusive economic zone without the consent of the coastal State.” See United Nations Convention on the Law of the Sea, Declarations made upon signature, ratification, accession or succession or any time thereafter, at http://www.un.org/depts/los/convention_agreements/­ convention_ declarations.htm#Brazil%20Upon%20signature. 15  Oxman, op. cit.; Horace B. Robertson, “The ‘New’ Law of the Sea and the Law of Armed Conflict at Sea,” 3 New Port Papers (Newport: Naval War College, 1992). 16  David D. Caron, “The Great Straits Debate: The Conflict, Debate, and Compromise That Shaped the Straits Articles of the 1982 United Nations Convention on the Law of the Sea,” in Navigating Straits: Challenges for International Law, ed. David D. Caron & Nilufer Oral (Leiden: Brill Nijhoff, 2014), 11; John Norton Moore, “The Regime of Straits and the Third United Nations Conference on the Law of the Sea,” 74 American Journal of International Law (1980): 77–121; Jonathan I. Charney, “Comment: The United States and the Law of the Sea after UNCLOS III: The Impact of General International Law,” Law & Contemporary Problems (Durham: School of Law/ Duke University, 1983): 37–54, 44–48; W.L. Schachte, Jr., & J.P.A. Bernhardt, “International Straits and Navigational Freedoms,” 33 Virginia Journal of International Law 503 (1993): 544–45. 17  Horace B. Robertson, op. cit.; Christopher Greenwood, “The Concept of War in Modern International Law”, 36 International and Comparative Law Quarterly (1987): 283, 300.

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the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations. This prohibition on the threat or use of force repeats verbatim the same prohibition in article 2 (4) of the Charter of the United Nations. This prohibition would presumably apply to interdiction of vessels on the high seas. Article 88 reinforces this by mandating that the high seas shall be reserved for peaceful purposes. The express provisions in the LOSC on warships are limited. These require that warships: (1) comply with the laws and regulations of a coastal State during passage through its territorial sea (art. 30); and (2) the flag State bears international responsibility for any damage caused to the coastal State resulting from non-compliance of a warship, or other governmental ships operated for noncommercial purposes, with the laws and regulations of a coastal State during passage through its territorial sea or with other provisions of the Convention or other rules of international law (art. 31). Otherwise, according to article 95 warships have ‘complete immunity’ on the high seas and the Convention is not to affect the immunities of warships (art. 32). Nonetheless, in exercising their freedom of high seas navigation warships, presumably are to exercise due regard for the interests of other States. (art. 87.2) These provisions, however, do not clarify the applicable international law for other activities of warships on the high seas. While arguably traditional inter-state, that is international armed conflicts at sea subject to other rules of international law can be readily defined as falling outside the scope of the LOSC, less clear is ascertaining the applicable rules of international law in non-interstate conflicts at sea that could be defined as NIAC or lower levels of conflicts with non-state actors, in situations such as civil unrest, rebellions, or acts of domestic or international terrorism, which do not fit neatly into the traditional laws of naval warfare and neutrality, and often overlap with ‘security’ issues.

Interdiction on the High Seas under International Law and Security Concerns

Freedom of navigation and the exclusive jurisdiction of the flag State on the high seas is one of the longest standing rules of international law since the famed treatise of Hugo Grotius Mare Liberum was published in 1609, having attained an almost sacred status especially for the maritime States. Protection

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of high seas freedoms was one of the lynchpin issues during the nine-year negotiations for the 1982 LOSC, especially for the United States and other maritime powers. The provisions on the high seas in the 1982 LOSC are mutis mutandis identical to those in the 1958 Geneva Convention on the high seas,18 which codified customary international law. The exceptions to when a war ship may board a foreign flagged vessel on the high seas are limited to those found in Article 110 of the LOSC as follows: – powers conferred by a treaty – piracy – slave trade – unauthorized broadcasting – ship lacking nationality. Further, the right for any single state to seize a vessel on the high seas is only provided for pirate ships (or aircraft).19 In the cases of unauthorized broadcasting and illicit traffic in narcotic drugs or psychotropic substances the Convention simply authorizes a state to request the cooperation of other states in the suppression of these activities and the right of visit as provided in article 110. The exhaustive character of these listed acts can be clearly inferred from the lack of any reference to “general principles of law” or “customary international law.” This interpretation is consistent with the overall history of the negotiations of the 1982 Convention and efforts to preserve freedom of navigation by the Super Powers at that time. However, one of the important exceptions to the right of undisturbed freedom of navigation that has not been expressly stated in the LOSC, according to many authors, is that the Convention does not apply to naval warfare, which is principally based on customary international law as reflected in the 1994 San Remo Manual, a non-binding manual prepared by international law experts.20 While this exception may be evident in conflicts at sea that fall clearly within the parameters of a military inter-state encounter at sea, less clear are questions involving security, terrorism and weapons of mass destruction. Natalie Klein in her extensive analysis of maritime security and the law of the sea notes the lack of a common understanding of the scope and meaning of ‘security’, observing that the meaning of ‘security’ can range from traditional 18  Article 22. 19  Article 105. 20  The San Remo Manual on International Law Applicable to Armed Conflict at Sea (ICRC, 1994).

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military activities to the more modern concerns of environmental security.21 Activities that are recognized as threats to maritime security include piracy, terrorism, international harm to the environment, human and drug trafficking, weapons of mass destruction, and IUU fishing.22 Moreover, all these activities are subject to the provisions of the LOSC. As will be discussed further on, there is ample state practice treating the transport of weapons of mass destruction on the high seas as an activity under the LOSC and not rules of armed conflict at sea. In fact, state practice, as reflected in relevant instruments discussed below, evince an international consensus to preserve a broad right of freedom of navigation on the high seas subject to the narrowly drawn exceptions in article 110. Despite opportunities to expand upon the existing exceptions to high seas freedoms the international community has consistently adopted a conservative approach and not created new exceptions for security concerns against acts or terror or the transport of weapons of mass destruction.23 Most notably, immediately following the terror attack against the United States on 11 September 2001, the International Maritime Organization (IMO) amended Chapter XI of the International Convention for the Safety of Life at Sea (SOLAS) 1974 and adopted the Special Measures to Enhance Security, and the International Ship and Port Facility Security Code (ISPS Code) which went into effect 1 July 2004.24 The principal objective of the ISPS Code was to establish an international framework of cooperation to detect security threats to ships and ports and take preventive measures against potential terror attacks.25 The ISPS Code was the first IMO instrument to introduce specific measures 21  Natalie Klein, Maritime Security and the Law of the Sea (Oxford, 2013), 9. 22  Klein, Id., at 10 (citing the UN Secretary General Oceans Report 2008). 23  According to Wolff Heintschel von Heinegg, however, international law would allow for the high seas interdiction of vessels reasonably suspected of transporting weapons of mass destruction and their delivery systems destined to transnational terrorism. Wolff Heintschel von Heinegg, “Proliferation Security Initiative: Security vs. Freedom of Navigation,” 81 International Law Study Series US Naval War College (2006): 55–76, 65. The author provides a detailed analysis of how UN Security Resolution 1540 could provide the legal basis for high seas interdiction of vessels suspected of transporting WMD to terror organizations, notwithstanding that an express provision to this effect was dropped to obtain China’s support for the resolution. Id., at 69–70. See also, Wolff Heintschel von Heinegg, “Security at Sea: Legal Restrains or Lack of Political Will? Comments on the Keynote Address by Admiral Hoch,” in Legal Challenges in Maritime Security, ed. Myron H. Nordquist (Leiden: Martinus Nijhoff, 2008), 133, 139. 24  The IMO Doc. MSC 78/7 Annex (Proposed Draft Amendment to SOLAS XI-2 Measures to Enhance Maritime Security) . 25  Article 1.2.1, ISPS Code, Part A.

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intended to detect and prevent the occurrence of a terror incident against a ship or a port facility or at sea. With some eighty percent of the world’s trade carried by sea, the security of shipping is of the utmost concern for international trade and military security. Another example of state practice in favor of maintaining freedom of navigation and the primary jurisdiction of the flag State in the high seas even in face of maritime security concerns is found in the 2005 Protocol to the 1988 Convention on the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA), which was adopted by the IMO following the 1985 terrorist attack against the cruise ship Achille Lauro on the high seas and resulted in the death of a US citizen. The Protocol includes a set of well-defined procedures for boarding a ship in international waters suspected of engaging in terrorism. It is significant that the participating Parties at the diplomatic conference were cautious to maintain the primary jurisdiction of the flag State in line with codified and customary international law. The Protocol subjects the right to board a vessel suspected of committing violation of the acts provided under the Convention to the express consent of the flag State. It stands to reason that if international consensus existed for expanding the right to interdict foreign vessels in international waters, certainly the 2005 SUA Protocol, which deals with the prevention of international terrorism, would have provided the legal forum and opportunity to do so. Instead, the strong commitment of states to maintain flag State jurisdiction over vessels on the high seas was clearly reaffirmed by the international community under the 2005 Protocol. This provides further evidence of State practice in limiting the exceptions allowed to interfere with the right of freedom of navigation on the high seas.

State Practice and Interdiction on the High Seas

Customary international law does not recognize a general right of visit and seizure of vessels on the high seas26 and limits the situations when a warship may visit or seize a foreign ship in international waters (high seas). The restricted scope of the lawful grounds for seizing a vessel on the high seas was demonstrated by the conduct of the United States during a high seas interdiction against a North Korean merchant vessel on 10 December 2002. Following a request from the United States for the interdiction of a North Korean merchant vessel suspected of transporting weapons of mass destruction, two Spanish 26  Ian Brownlie, Principles of Public International Law (Oxford: Oxford University Press, 1999).

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naval ships intercepted and boarded the ship on the high seas some 600 miles from the coast of Yemen. The legal justification provided by the US for the interdiction was that the ship was flagless, one of the exceptions in article 110 of the LOSC.27 However, subsequently it was discovered that the ship was registered to Cambodia. During the search of the vessel, fifteen Scud missiles, not listed in the ship’s manifest, were discovered beneath a cargo of cement. Upon verifying that Yemen had purchased the missiles, the United States Administration decided to release the vessel and its cargo. The US found that, although the lack of a flag gave legal grounds for the initial boarding of the vessel, there was no ‘clear authority’ for seizing the missiles under international law. The US did not assert any exception based on ‘security’ or ‘self’ defense. Rather the US acknowledged that there was no restriction under the LOSC or other sources of international law against the maritime transport of missiles.28 The right of ‘hot pursuit’ under article 111 of UNCLOS is another exception that allows high seas diversion of a foreign flagged vessel on the high seas.29 Accordingly, when there is “. . . . good reason to believe that the ship has violated the laws and regulations of that State,” and must be commenced when the foreign ship or one of its boats is within the internal waters or the territorial sea or the contiguous zone of the pursuing State, and may only be continued outside the territorial sea or the contiguous zone if the pursuit has not been interrupted. In the M/V Saiga case the International Tribunal for the Law of the Sea had opportunity to examine the extension of the right of hot pursuit of a foreign flagged state to the exclusive economic zone (EEZ), where for purposes of navigation is subject to the regime of high seas freedom of navigation. The case involved the arrest of an oil tanker in the EEZ of Guinea for alleged violation of its laws. Notably, the Tribunal rejected Guinea’s argument for the extension of the ‘hot pursuit’ exception to the EEZ and found that the arrest 27  Thom Shanker, “Threats and responses: arms smuggling; scud missiles found on ship of North Korea,” NYT 11 Dec (2002); Ian Patrick Berry, “The right of visit, search and seizure of foreign flagged vessels on the high seas pursuant to customary international law: a defense of the Proliferation Security Initiative,” 33 Hofstra Law Review (2004): 299; Jin Yuansu, “The Proliferation Security Initiative PSI and Interdiction at Sea: A Chinese Perspective,” 43 Ocean Development & International Law (2012): 96–118. 28  Michael A. Becker, The Shifting Public Order of the Oceans: Freedom of Navigation and the Interdiction of Ships at Sea, 131 Harvard International Law Journal (2005): 153. 29  Article 111 is adopted mutis mutandis from Article 23 of the 1958 Convention, with the addition of the Exclusive Economic Zone.

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of the vessel had been in contravention of the Convention.30 Whereas, the Tribunal could have adopted a more expansive interpretation of article 60(2),31 but chose to decide effectively on the side of freedom of navigation.32 The UN Security Council Presidential Statement of January 1992 had recognized the growing threat of the proliferation of weapons of mass destruction by terrorism as a threat to international peace and security, and further underscored the need for member States of the United Nations to prevent proliferation.33 The terror attack against the United States on 9 September 2001 (9/11) demonstrated the extent and severity of terrorism to national and international security. Nonetheless, despite the opportunity that 9/11 presented to justify high seas interdictions of vessels suspected of engaging in acts of terror or carrying weapons of mass destruction the US maintained its long-standing position in preserving high seas freedom of navigation. This was demonstrated in 2003 when the United States adopted the Proliferation Security Initiative (PSI) and its associated principles34 in response to the threat of international terrorism and weapons of mass destruction. The 2003 PSI, which provides for the boarding of vessels suspected of carrying WMD is based on flag State consent. The US concluded Ship Boarding Agreements with flag States who grant the US the right to board and inspect their vessels while on the high seas35 if suspected of transporting weapons of mass destruction (WMD) to hostile States or terrorists. These agreements clearly could fall within the provision of “[e]xcept where acts of interference derive from powers conferred by treaty”

30  Article 60(2) provides that “The coastal State shall have exclusive jurisdiction over such artificial islands, installations and structures, including jurisdiction with regard to customs, fiscal, health, safety and immigration laws and regulations.” The Tribunal interpreted this to restrict the enforcement of its customs laws only to artificial islands, installations and structures in the EEZ. Id. Para 127. 31  The M/V “SAIGA” Case (Saint Vincent and the Grenadines v. Guinea), Prompt Release, (1997). 32  The Tribunal also rejected Guinea’s argument that the arrest was for the protection of the “public interest” and in defense of “state of necessity”. The Tribunal found that a state of necessity did not exist, explaining the “state of necessity” defense can be asserted only if “the act was the only means of safeguarding an essential interest of the State against a grave and imminent peril.” Id. Para.133 (emphasis added). 33  UN doc. SC s/23500, 31 January 1992. 34  Proliferation Security Initiative: Statement of Interdiction Principles, 24 Sept. 2003, available at http://www.state.gov/t/isn/c27726.htm. 35  Ship Boarding Agreements have been signed with the following flag States: Antigua and Barbuda, Bahamas, Belize, Croatia, Cyprus, Liberia, Malta, Marshall Islands, Mongolia, Panama, and St. Vincent and the Grenadines.

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found in both the 1958 Convention and UNCLOS, constituting customary international law.36 In 2004, recognizing the grave threat posed by non-state actors engaged in acts of terror and the proliferation of weapons of mass destruction the United Nations Security Council acting under Chapter VII of the UN Charter adopted resolution 1540. According to reports in order to obtain China’s support for the resolution a provision that would have allowed high seas interdiction of ships suspected of carrying WMD was removed.37

International Law of Armed Conflicts at Sea

The right of states to unilaterally declare war ended with the Charter of the United Nations. Chapter VII of the United Nations Charter altered the old rules of jus ad bellum by giving the Security Council, and not individual States, the legal authority to determine the existence of any threat to the peace, breach of the peace, or act of aggression and to decide what measures are to be taken to maintain or restore international peace and security. Nonetheless, Article 51 of the Charter recognized “the inherent right for States to exercise individual or collective self-defence if an armed attack occurs and until the Security Council has taken measures necessary to maintain international peace and security.38 (Emphasis added). In creating a margin of legal area for states to take measures in self-defense against an act of aggression from another state Article 51 does not exclude or diminish the role of the Security Council from taking subsequent action. Indeed, Article 51 clearly imposes the obligation on States to immediately report to the Security Council measures taken in self-defense. Under Article 51 the Security Council retains its authority and responsibility to maintain or restore international peace.39 The law of armed conflicts at sea 36  Article 110. 37  Wolff Heintschel von Heinegg, “Security at Sea: Legal Restrains or Lack of Political Will? Comments on the Keynote Address by Admiral Hoch,” in Legal Challenges in Maritime Security, ed. Myron H. Nordquist (Leiden: Martinus Nijhoff, 2008): 133, 140 (citing S.D. Murphy, “UN Security Council Resolution on Nonproliferation of WMD”, 98 American Journal of International Law, 606, 607). 38  See Christopher Michaelsen “Maritime Exclusion Zones in Times of Armed Conflict at Sea: Legal Controversies Still Unresolved,” 8 Journal of Conflict & Security Law (2003): 363–390, 379–380. 39  Article 51 stipulates: Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain

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and the use of naval blockades as measures of self-defense needs to be construed within this legal context. International humanitarian law, or jus in bellum is based on custom­ ary international law and the 1949 Geneva Conventions and their Additional protocols. The rules for armed conflict at sea or naval warfare, however, are principally derived from customary international law. The framework for naval warfare as developed since the 20th Century is comprised of the 1907 Hague Conventions,40 1913 Oxford Manual,41 1949 Geneva Conventions,42 1994 San Remo Manual and the 1998 Helsinki Principles. There is no express treaty provision that makes the rules of warfare on land applicable at sea.43 Attempts to codify naval warfare date back to the 1856 Paris Declaration Respecting Maritime Law, which was followed by the International Peace Conferences at the Hague in 1899 and 1907. The latter produced the 1909 London Declaration followed by the 1913 Oxford Manual.44 The current international framework for naval warfare at sea is found principally in the 1994 San Remo Manual, which was the outcome of a series of expert meetings conducted between 1988–1994 aimed at developing an instrument to both modernize the law of armed conflict at sea and clarify the existing state of customary law, especially on controversial issues such as international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.” 40  The 1907 Hague Conventions consist of thirteen Conventions of which seven applied to naval warfare. According to Roach only the following have some continued relevancy: Convention (No. VIII) Relative to the Laying of Automatic Submarine Contact Mines, Oct. 18, 1907, 36 Stat. 2332, 1 Bevans 669; Convention [No. XI] Relative to Certain Restrictions with Regard to the Exercise of the Right of Capture in Naval War, Oct. 18, 1907, 36 Stat. 2396, 1 Bevans 711; Convention [No. XIII] concerning the Rights and Duties of Neutral Powers in Naval War, Oct. 18, 1907, 36 Stat. 2415, 1 Bevans 723. Ashley Roach, “The Law of Naval Warfare at the Turn of Two Centuries,” 94 American Journal of International Law (2000): 64, 65. 41  Manual of the Laws of Naval War, Oxford, 9 August 1913, available at http://www.icrc.org/ ihl/INTRO/265?OpenDocument. 42  Applicable specifically to naval warfare is the Second Geneva Convention for the amelioration of the condition of the wounded, sick and shipwrecked members of the armed forces at sea, 12 Aug. 1949, 75 UNTS 85. 43  Roach, op. cit., 69. 44  See Chris Greggs, “Legal Constraints on Maritime Operations Affecting Merchant Shipping,” 19 Australia and New Zealand Maritime Law Journal (2005): 148–158.

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e­ xclusionary zones, or blockades.45 As explained by Louise Doswald-Beck, one of the authors of the San Remo Manual, “[t]he need for an updated articulation of the law stem[med] from the fact that treaty law on the conduct of hostilities at sea not only [was] fragmentary but also mostly date[d] back to 1907 . . .”46 Doswald-Beck further explained that the 1949 Geneva Conventions had been updated in 1977 with the adoption of the Protocols I and II Additional to the Geneva Conventions. The provisions related to naval operations only concerned medical vessels and aircraft, and the Second Geneva Convention, Part IV of the Protection of civilians against the effect of hostilities, applied only to land operations. Furthermore, since 1977 many changes had taken place especially in regard to the law of the sea, such as the adoption in 1982 of the LOSC and the creation of new maritime zones, which were of especial importance for naval operations at sea. Furthermore, the existing framework for armed conflicts at sea did not reflect environmental issues, which had also acquired global importance since 1977. These and other concerns underscored the need to review and update the existing international legal framework providing the impetus for the San Remo meetings. The San Remo Manual, prepared by well-known experts in the field, was not intended to be a legal instrument as at the time of its development the prevalent view was that it was premature to negotiate and adopt a binding legal treaty. When completed in 1994, while not a binding agreement, the common view was that the provisions reflected customary international law. Nonetheless, certain issues were omitted, such as state responsibility for violations of the law of war and immunity and implementation of the law. And while the issue of NIAC was not included in the Manual it was also not expressly excluded to avoid the possible misuse of a legal gap and encourage the application of humanitarian rules to possible naval operations during such conflicts.47 However, as pointed out by numerous authors, naval blockades are lawful measures only for international armed conflicts (IAC) at sea, 45  Drawing a distinction between exclusion zones or operational zones and blockades see Wolff Heintschel von Heinegg, “The Protection of Navigation in Case of Armed Conflict,” 18 International Journal of Coastal and Marine Law (2003): 401–422, 416–17. For an indepth review of maritime exclusion zones, war zones and naval blockades see also, Christopher Michaelsen, 8 Journal of Conflict & Security Law (2003): 363–390. See also, Ashley Roach, “The law of naval warfare at the turn of two centuries”, 94 American Journal of International Law (2000): 64–77. 46  Louise Doswald-Beck, “The San Remo Manual on International Law Applicable to Armed Conflict at Sea,” 89 American Journal of International Law (1995): 192–208, 193. 47  Id., at 207.

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­state-to-state conflicts.48 The more controversial issue concerns the use of naval blockade in non-interstate conflicts, which may or may not be classified as non-international armed conflicts (NIAC), such as in the case of the conflict between Israel and Hamas. Doswald-Beck further points out that one of the key issues examined during the preparation of the San Remo Manual concerned actions taken against merchant vessels in time of conflict in the post-United Nations Charter period. The UN Charter makes no express reference to ‘war’ and the resort to force is limited to individual or collective self-defense (art. 51), or as provided in the Charter,49 meaning by a decision of the United Nations Security Council under Chapter VII. The era of unilateral declarations of war and the conduct of international conflicts was to be replaced with decisions taken by the United Nations Security Council, excluding self-defense and collective defense.

Naval Blockades

Naval blockades are methods of warfare50 and have been used as a military tactic throughout history, and have continued to be used in a number of contemporary international armed conflicts.51 Egypt’s blockades against Israeli shipping in the late 1940s and early 1950s,52 during the Suez Canal Crisis of 48  See, David E. Graham, ”Defining Non-International Armed Conflict: A Historically Difficult Task,” 88 International Legal Studies Series US Naval War College 43 (2012). The 2001 San Remo Manual relating to Non-International Armed Conflicts as revised in 2006 does not make any reference to the use of naval blockades in NIAC situations. See Manual with Commentary at http://www.iihl.org/iihl/Documents/The%20Manual%20on%20 the%20Law%20of%20NIAC.pdf. 49  Doswald-Beck, op. cit., 196. 50  In Part IV under “Methods and Means of Warfare at Sea” and section II, the San Remo Manual lists naval blockades as a method of warfare. Other terms that have historically been used are “military exclusion zones,” “war zones,” “maritime operational zones,” “maritime security zones” and others. See Christopher Michaelsen, “Maritime Exclusion Zones in Times of Armed Conflict at Sea: Legal Controversies Still Unresolved,” 8 Journal of Conflict & Security (2003) 363–390, 365. This chapter will employ the terms ‘naval blockade’ as used in the 1992 San Remo Manual. 51  According to Wolff Heintschel von Heinegg, the majority of post-World War II conflicts have been internal or mixed armed conflicts. In 1998–1999 of 108 major armed conflicts 92 were of a non-international character. Wolff Heintschel von Heinegg, “The Protection of Navigation in Case of Armed Conflict,” 18 International Journal of Coastal and Marine Law (2003): 401–422, 401 (fn 1). 52  See, e.g., Eitan Barak, “On the Power of Tacit Understandings: Israel, Egypt and Freedom of Passage Through the Suez Canal”, 58 Middle East Journal (2004): 444, 445; Leo Gross,

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195653 and in 1967 just before the Six-Day War.54 In 1967, Egypt closed the “Gulf of Aqaba and the Straits of Tiran to Israeli shipping. Cuban Missile Crisis in October 1962, which was called a ‘quarantine’ and not ‘blockade’.55 More recent blockades include UN Security Council approved ‘military intercept’ operations against Iraq (1999)56 and against Yugoslavia (1991–1992).57 State practice including UN authorized blockades, have contributed to establish the current principles governing naval blockade. Past efforts to develop rules governing naval blockades were abandoned during World Wars I and II. Since then there has been no codification by governments of an agreed set of rules on naval blockades in international armed conflicts. The San Remo Manual is the only non-governmental developed set of principles on international armed conflicts at sea. The applicable laws of naval warfare, as reflected in the San Remo Manual distinguish between ‘belligerents’ (enemy) and ‘neutrals’. Notably, there is no mention of non-state actors. And as one author observes that while there is overall agreement that the law of naval warfare applies to international armed conflicts at sea less clear is the law of maritime neutrality, which is described as “probably the most unsettled parts of public international law.”58 The author explains the different positions adopted by States where in some cases States “Passage Through the Suez Canal of Israel-Bound Cargo and Israel Ships”, 51 American Journal of International Law 530 (1957). 53  John King Gamble & Nicole Lee Dirling, “Mass Media Coverage of International Law: (Benign) Neglect?, Distortion?”, 18 Florida Journal of International Law 211 (2006): 232; The Suez War of 1956, Jewish Virtual Library, Aug. 12, 1988, http://www.jewishvirtual library.org/jsource/History/Suez_War.html (Aug. 12, 1988). 54  William C. Bradford, “The Duty to Defend Them: A Natural Law Justification for the Bush Doctrine of Preventive War”, 79 Notre Dame Law Review 1365 (2004): 1407. 55  Stephen C. Neff, “Towards a Law of Unarmed Conflict: A Proposal for a New International Law of Hostility”, 28 Cornell International Law Journal 1 (1995): 24; see also Fielding, op. cit., 1195–1196 (discussing the significance of the Cuban Quarantine in the development of maritime interdiction). 56  U.N. Security Council Resolution 665 (1990); Lois E. Fielding, “Maritime Interception: Centerpiece of Economic Sanctions in the New World Order”, 53 Louisiana Law Review (1993): 1191, 1194; 1214. 57  U.N. Security Council Resolutions 713 (1991) and 757 (1992); Richard Zeigler, “Ubi Sumus? Quo Vadimus?: Charting the Course of Maritime Interception Operations”, 43 Naval Law Review 1 (1996): 15, 31–33; William Drozdiak, “NATO Agrees to Impose Blockade of Serbia”, Washington Post, Nov. 19 (1992), at A31. 58  Wolff Heintschel von Heinegg, “The Protection of Navigation in Case of Armed Conflict,” 18 International Journal of Coastal and Marine Law (2003): 401–422, 404; Elizabeth Chadwick, “Back To The Future: Three Civil Wars And The Law Of Neutrality,” 1 Journal of Armed Conflict 1 (1996).

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take the view that the law of maritime neutrality applies only if is there has been a formal state of war, others take the view that there must be a formal declaration of neutrality by the state concerned and others, such as the Germans, take the position that the law of maritime neutrality applies only in international armed conflicts if the conflict is of ‘significant scope’. Customary international law as reflected in the San Remo Manual, recognizes the belligerent right of visit, search, capture and diversion of enemy vessels on the high seas without flag State consent and for the exercise of the right of self-defense.59 As stated earlier the right of self-defense is the only exception to the prohibition against the use of force by States under the Charter of the United Nations and customary international law. Article 51 of the UN Charter expressly limits the right of States to exercise self-defense to situations of armed attack. The controversial doctrine of ‘anticipatory self-defense’ has been limited support in international law, including its use to justify the interdiction of a foreign ship on the high seas has extremely limited support in international law. In the case of Nicaragua v. United States of America (Merits), the International Court of Justice rejected the claims of the United States to exercise the right of self-defence under Article 51 of the Charter and customary international law.60 The Court clearly stated that Article 51 could be invoked only against an armed attack and that whether the response to an attack is lawful depends on the observance of the criteria of the necessity and the proportionality of the measures taken in self-defense. Even if there were a right of anticipatory selfdefense, the widely accepted criteria that must be fulfilled are those that were stated by Daniel Webster in the 1837 Caroline incident, which involved the interception of a merchant vessel on the high seas by the British, where necessity of that self-defence (sic) is instant, overwhelming, and leaving no choice of means, and no moment for deliberation” and furthermore, that the act justified by the necessity of self-defence (sic), must be limited by that necessity, and kept clearly within it.61

59  Efthymios Papastavridis, Interception of Vessel on the High Seas: Contemporary Challenges to the Legal Order of the Ocean (Oxford: Hart, 2013). 60   Case Concerning Military and Paramilitary Activities in and Against Nicaraguan (Nicaragua v. United States of America), (Merits), ICJ Reports (1986). 61  Letter from Daniel Webster, Secretary of State, to Lord Ashburton, British Plenipoteniary, 6 August 1842, in John B. Moore, Digest of International Law 412 (1906).

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In short, acts of self-defense must be based on necessity and be proportionate to the threat. Over the years there have been several examples of interception of merchant vessels on the high seas justified by enforcement of naval blockades as measures of self-defense. The Iran-Iraq war (1980–88), the Falkland Islands/ Islas Malvinas (1982) war between Argentina and Great Britain, the 1990 Gulf War, the UN Security Council approved ‘military intercept’ operations against the former Yugoslavia (1991–1992)62 and against Iraq (1999),63 the 2001 Operation Enduring Freedom, the 2003 Iraq invasion (Operation Iraqi Freedom) are most recent examples.64 In each of these cases, with the exception of the former Yugoslavia, the conflict was of an international character. The use of naval blockades to intercept merchant vessels in the high seas as a measure of self-defense for internal conflicts, as was done extensively by France during the Algerian uprising, is, however, legally dubious. As Papastavridis, observes “[t]he problem, in general, lies in the fact that there is no conventional regulation of internal armed conflict at sea, and the customary law, if existent, is very obscure . . .”.65 The use of naval blockades as a measure for internal conflicts or against non-state actors has extremely limited support. In a detailed examination of naval blockades Guilfoyle notes the US Civil War (1861–1865) as the only example of an internationally condoned use of a naval blockade to interdict neutral merchant vessels in a civil war.66 During the Algerian rebellion the international community protested France interdiction of nearly 5,000 of vessels on the high seas. Guilfoyle also cites the more recent example of the Sri Lanka civil conflict (1983–2009) which involved maritime operations. In 1984 Sri Lanka implemented “a special naval surveillance zone within Sri Lankan waters . . . with the . . . purpose of preventing illegal entry and exit . . .”. According to Guilfoyle, “most maritime naval interception appear to have taken place within Sri Lankan waters (TS and Contiguous Zones) and justifiable under normal policing powers available within 24 nm and thus do not 62  U.N. Security Council Resolution 665 (1990); Lois E. Fielding, “Maritime Interception: Centerpiece of Economic Sanctions in the New World Order”, 53 Louisiana Law Review (1993): 1191, 1194; 1214. 63  U.N. Security Council Resolutions 713 (1991) and 757 (1992); Richard Zeigler, op. cit., William Drozdiak, op. cit. 64  Papastavridis, op. cit., 84–94. 65  Id., at 86. 66  Guilfoyle also cites the Spanish Civil War as an example of where there was no international acceptance of the use of naval blockade against neutral shipping. See Guilfoyle, op. cit.

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need invocation of blockade”.67 Guilfoyle concludes that “[t]he right of states to implement measures against neutral vessels in NIACs is thus at best an unsettled question.”68 As foreseen by some authors that international armed conflicts in the 21st Century will transcend land territory and have “considerable impact in international navigation” and noting the importance of international navigation to the global trade, “the question of the protection of navigation in case of war is far from lacking a practical and legal relevance.”69

The Gaza Flotilla Case

The Gaza Flotilla incident arose from a naval blockade imposed by Israel against Gaza in response to rocket and mortar attacks from Hamas. As stated earlier the lawfulness of the naval blockade is highly controversial. Notwithstanding the controversy as to the lawfulness of the naval blockade imposed by Israel, the Gaza Flotilla incident illustrates grey zones in the existing international legal framework. For example, in order for the customary international law of naval blockade to apply Hamas must be recognized as a belligerent,70 which has not been the case.71 Israel has not recognized Hamas as such and has refused to apply international humanitarian law in Gaza. Nonetheless, the Palmer Report, a political and not legal document,72 in order to legitimize the blockade concluded that Israel was justified under article 51 of the UN Charter and international law to establish a naval blockade as an exercise of self-defense despite “the uncertain legal status of Gaza under international law . . .”.73 Perhaps aware of the dangerous precedence that could be set the Palmer Report described the situation in Gaza to be ‘unique’ and likely not 67  Id., at 24. 68  Id. 69  Heintschel von Heinegg, op. cit., 402. 70  According to Farrant some scholars argue that the requirement of ‘belligerent recognition’ has fallen into desuetude. See supra note 10 at 85. 71  See Russell Buchan, “The Palmer Report and the Legality of Israel’s Naval Blockade of Gaza,” 61 International and Comparative Law Quarterly (2012): 264–273, 269–270, who argues that Hamas would not meet the criteria to be classified as a belligerent. 72  In its final report the Panel of Inquiry highlighted its unique character and methods and that it was not a court and was not asked to make legal determinations. Report of the Secretary General’s Panel of Inquiry on the 31 May 2010 Flotilla Incident (September 2011), para. 5. 73  Id., at para. 72.

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to be replicated anywhere in the world and proceeded to declare the conflict ‘international’ that had all the trappings of an international armed conflict only for purposes of the naval blockade. However, if so, then would not Hamas also be legally justified in establishing a naval blockade against Israel? The Palmer Report is not a legal document. Nevertheless, it’s acceptance of the use of a naval blockade by Israel against Hamas conflicts with international state practice and arguably opinion juris opening the door to a dangerous potential for future uses of naval blockades against civilians, merchant vessels and non-state actors or other conflicts that are not clearly defined as international armed conflicts. Hamas74 has been listed as a Foreign Terrorist Organization by the United States,75 Canada,76 Japan and the European Union. Accordingly, such classification would place the conflict between Gaza and Israel as one that involves acts of terrorism and not an international armed conflict. In which case, state practice, as illustrated earlier, supports the application of the peacetime rules of the law of the sea and not rules of naval warfare as measures of self-defense against acts of terror and maritime security issues. Secondly, both the Palmer Report77 and Human Rights Council Report78 found the enforcement of the blockade to have been unlawful. Nine lives were lost and many more passengers were seriously injured, in addition after the six vessels were taken over by the IDF there was significant mistreatment of all passengers.79 The Flotilla incident also created the worst diplomatic crisis in the history of Turkish and Israeli relations in a region where political stability and peace are fragile. The unilateral declaration of naval blockades in conflicts that fall short of IAC pose significant risks to regions prone to conflict. The question must be asked what the role of the United Nations and the Security Council should be? Without doubt, the right of individual or collective defense 74  Acronym for Ḥarakat al-Muqāwamah al-ʾIslāmiyyah (Islamic Resistance Movement). 75  http://www.nctc.gov/site/groups/hamas.html. 76  Listed Terrorist Entities at http://www.publicsafety.gc.ca/cnt/ntnl-scrt/cntr-trrrsm/lstdntts/crrnt-lstd-ntts-eng.aspx. 77  The Palmer Report specifically found that “The loss of life and injuries resulting from the use of force by Israeli forces during the take-over of the Mavi Marmara was unacceptable . . .” See para. 134. 78  The Human Rights Council found the blockade to be unlawful and its enforcement. See paras. 53 and 65. 79  Passengers were kept on the deck of the vessels for hours in tight handcuffs, were denied access to medical treatment, medication, had limited access to food and drink as well as to bathrooms. Passengers were strip-searched, subjected to verbal and physical abuse, intimidation and property confiscation and more. See Palmer Report paras. 135–145.

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against armed attack that is imminent is critical for the security of all States. But can this be justified for naval blockades and interdictions of non-military vessels in the high seas miles and hours away from the blockaded area especially when there is no threat of ‘armed attack’? International practice and customary international law does not support such expansion of naval blockades, a method of warfare. Conclusion The right to interfere with freedom of navigation and the exclusive jurisdiction of the flag State on the high seas under customary international law and the 1982 LOSC has not been expanded even against maritime security threats from terrorism and the transport of WMD. As demonstrated by the continued application of flag State consent in the 2005 SUA Protocol, the PSI and the ISPS Code, and state practice, there is clear reluctance by the international community to alter the status quo. It is for this very reason that the interdiction by Israeli military forces with the use of force against six vessels in the high seas transporting 600 passengers and humanitarian aid to Gaza based on the rules naval warfare for international armed conflicts should be alarming. The characterization of conflict between Israel and Gaza (Hamas) remains controverted. Yet international law is clear that the naval blockades can only be used as legitimate methods of naval warfare in international armed conflicts—state to state. Allowing states to unilaterally declare naval blockades which can be enforced against non-military vessels and civilians sets a dangerous precedent and does not appear to be supported under the rules of naval warfare or the law of the sea. The Gaza Flotilla incident presents an important example of the need for further clarification of the relationship between the law of the sea and that of naval warfare. This is particularly important to further peaceful used of the sea as eloquently expressed in the preambular statement . . . that the codification and progressive development of the law of the sea achieved in this Convention will contribute to the strengthening of peace, security, co-operation and friendly relations among all nations . . . in accordance with the Purposes and Principles of the United Nations as set forth in the Charter.

Chapter 22

Les compétences de l’Etat côtier en matière de sécurité de la navigation maritime Roberto Virzo

Les compétences de l’Etat côtier en matière de sécurité de la navigation et l’érosion du régime de la liberté des mers

L’érosion du régime de la liberté des mers, à laquelle on assiste notamment après la conclusion de la Seconde guerre mondiale et qui est rapidement augmentée jusqu’à la première moitié des années Quatre-vingt-dix du siècle passé, semble continuer plus graduellement et avec des modalités différentes. Il est bien connu que la phase aiguë de ce processus d’érosion a produit, comme effets principaux : la réduction des espaces de mer libre ; l’affirmation de la souveraineté de l’Etat côtier et de l’Etat archipel sur la mer territoriale ; l’exercice par ces mêmes Etats de droits souverains spéciaux, de pouvoirs de contrôle ou de juridiction dans de nouvelles zones marines sui generis et sur le plateau continental ; l’évolution de la nature juridique de certaines compétences de l’Etat du pavillon, transformées d’exclusives à concurrentes1. Actuellement, l’expansion de type spatial des droits et pouvoirs des Etats côtiers et des Etats archipels s’est atténuée. Par exemple, on n’a pas avalisé les tentatives unilatérales de certains Etats côtiers d’exercer des pouvoirs de contrôle visant à la conservation et à la gestion rationnelle de certaines espèces de poissons dans des zones de haute mer adjacentes à leurs zones économiques exclusives (ZEE)2. D’ailleurs jusqu’ici aucun Etat côtier n’a proclamé une zone marine protégée3 au-delà de la limite des 200 milles marins de la ZEE. 1  A cet égard, voir Tullio Scovazzi, « The Evolution of the International Law of the Sea : New Issues, New Challenges », 286 Recueil des Cours de l’Académie de droit international de la Haye, nº 39 (2000). 2  Pour l’analyse de la pratique et des législations de certains Etats côtiers qui, au cours des années Quatre-vingt-dix du siècle passé, ont proposé l’institution de ces nouvelles zones de mer, voir, même pour des références bibliographiques ultérieures, Rafael Casado Raigón, « La liberté de la pêche en haute mer », Le droit international de la pêche maritime, vol. 128, ed. Daniel Vignes, Giuseppe Cataldi & Rafael Casado Raigón (Bruselas : Bruylant, 2000). 3  Sur certaines typologies de ces zones marines protégées, v. infra, § 3.

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En outre, s’il est vrai que ce qu’on appelle la ‘juridiction rampante’ ne peut pas être considérée comme tout à fait interrompue, c’est seulement parce qu’on est en train de compléter devant la Commission sur les limites du plateau continental, instituée par la Convention des Nations Unies sur le droit de la mer (CNUDM)4, l’examen des requêtes de la part de certains Etats côtiers d’étendre au-delà des 200 milles marins leurs plateaux continentaux5. Il ne s’agit donc pas d’une ‘nouvelle’ tendance à l’extension des compétences ratione loci de l’Etat côtier mais de la mise en oeuvre d’une disposition de la CNUDM6, qui est, d’ailleurs, une Convention négociée et conclue justement pendant la phase où les Etats côtiers ont revendiqué avec une plus forte détermination des droits de différente nature dans de vastes zones de mer ou de sol et de soussol marin. Il a été relevé que probablement si la CNUDM avait été élaborée à une époque plus récente, le régime juridique du plateau continental au-delà des 200 milles aurait été réglementé d’une façon différente7. Cependant, comme on l’a dit, il ne faut pas considérer comme épuisé le processus d’érosion du régime de la liberté des mers, lequel, au lieu de réduire ultérieurement les espaces de haute mer totale8, tend aujourd’hui à entamer la délimitation traditionnelle des droits et des compétences découlant de ce régime – délimitation notoirement déséquilibrée en faveur de l’Etat du ­pavillon – et, en définitive, à influencer la réglementation juridique des activités en mer. En fait, on assiste à l’attribution progressive de quelques-uns de ces droits et pouvoirs même aux Etats et aux organisations internationales entre lesquels on a compartimenté les espaces marins soustraits entièrement ou partiellement au régime de liberté. Autrement dit, les Etats côtiers, les Etats archipels, les organisations régionales de pêche agissant en haute mer et ­l’Autorité internationale des fonds marins, pour protéger des intérêts de la communauté internationale9, coïncidant ou pas avec leurs propres exigences, 4  « Convention des Nations Unies sur le droit de la mer », Montego Bay, 10 décembre 1982 (entrée en vigueur : 16 novembre 1994), 1833 UNTS 397. 5  Article 76, par. 8 CNUDM. V. Virgine J.M. Tassin, Les défis de l’extension du plateau continental. La consécration d’un nouveau rapport de l’Etat à son territoire (Paris : Pedone, 2013). 6  Article 76, par. 8 CNUDM. 7  Angela Del Vecchio, « Piattaforma continentale, Postilla di aggiornamento », XVII Enciclopedia Giuridica, Aggiornamento 3 (Roma : Treccani, 2008). 8  Pour une différente interprétation de la pratique des Etats côtiers, Gemma Andreone, « Les émergences environnementales et la stratégie de la sécurité maritime », Droit de la mer et émergences environnementales, ed. Gemma Andreone, Andrea Caligiuri & Giuseppe Cataldi (Napoli : Editoriale Scientifica, 2012), 59-64. 9  A cet égard, Yoshofumi Tanaka, Protection of Community Interests in International Law : The Case of the Law of the Sea, 15 Max Planck Y.B. of UN L. 329 (2011).

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exercent de plus en plus souvent des fonctions qui étaient précédemment exercées surtout par l’Etat du pavillon. Dans ce texte on examinera, à titre d’exemple, l’évolution de la législation internationale en matière de sécurité de la navigation maritime. A vrai dire, le développement de cette législation reflète emblématiquement la tendance que nous venons de décrire. On verra, en particulier, que celle-ci prévoit un rôle croissant de l’Etat côtier10 et une réduction progressive des compétences qui peuvent traditionnellement être exercées, à titre principal, par l’Etat du pavillon.

La coopération entre l’Etat côtier et l’Organisation Maritime Internationale en matière de sécurité de la navigation maritime

Les compétences en matière de sécurité de la navigation dans la mer territoriale et dans des zones marines sui generis, qui sont toujours plus fréquemment attribuées à l’Etat côtier par des conventions internationales, peuvent être divisées en deux grandes catégories et, plus précisément, les compétences que l’Etat exerce en concours avec l’Organisation Maritime Internationale (OMI)11 et celles qu’il peut exercer de façon autonome. La première catégorie comprend les compétences en matière de sécurité de la navigation maritime au sujet desquelles un rôle important est également attribué à l’OMI afin d’éviter que ces compétences soient exercées par l’Etat côtier de façon excessivement discrétionnaire et que, par conséquent, il y aient des limitations disproportionnées du droit de passage ou de la liberté de navigation des autres Etats. En effet, les diverses normes conventionnelles qui attribuent ces catégories de compétences à l’Etat côtier ne prévoient pas des conditions objectives auxquelles subordonner l’exercice concret de ces compétences. Partant les mêmes dispositions – qui représentent une évolution de celles négociées à la fin des années Soixante du siècle passé pour ­réglementer 10  On ne va pas s’arrêter sur les compétences que l’Etat côtier exerce en matière de sécurité de la navigation en tant qu’Etat du port, matière qui fait l’objet de nombreuses contributions en doctrine. Voir, parmi les autres, Elda Turco Bulgherini, « Port State Control », International Law of the Sea. Current Trends and Controversial, ed. Angela Del Vecchio (The Hague : Eleven International Publishing, 2014). Erik J. Molenaar, « Port State Jurisdiction », 8 The Max Planck Encyclopedia of Public International Law, vol. 355, ed. Rüdiger Wolfrum (Oxford : OUP, 2012), préfère parler de Port State Jurisdiction. 11  Sur l’OMI et sur les Conventions adoptées dans le cadre de cette Organisation, voir Hélène Lefebvre-Chalain, La stratégie normative de l’Organisation Maritime (OMI) (Marseille : PUAM, 2012).

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les interventions en haute mer en cas de pollution par hydrocarbures12 – excluent que ce soit le seul Etat côtier à décider sur leur éventuelle mise en œuvre et demandent au contraire l’implication de l’OMI. Cela est également vrai pour certaines dispositions de la CNUDM qui se réfèrent génériquement à l’organisation internationale compétente, dès lors que, d’après le Rapport du 20 octobre 1997 du Secrétaire général des Nations Unies13 et la doctrine ­dominante14, cette organisation ne peut être que l’OMI. A partir justement de la CNUDM, il faut tout d’abord rappeler les articles 22, 41 et, avec référence à une typologie particulière d’Etat côtier, à savoir l’Etat archipel, l’art. 53. Ces trois dispositions prévoient l’institution, pour des raisons de sécurité, de voies de circulation ou de dispositifs de séparation du trafic, respectivement, dans la mer territoriale, dans les détroits utilisés pour la navigation internationale et dans les eaux d’un Etat archipel. Plus en détail, dans le cas de l’article 22 l’Etat côtier peut « lorsque la sécurité de la navigation le requiert, exiger des navires étrangers qui exercent le droit de passage inoffensif dans sa mer territoriale qu’ils empruntent les voies de circulation (. . .) et respectent les dispositifs de séparation du trafic (. . .) » (par. 1), qu’il a désignés en tenant compte des recommandations de l’organisation internationale compétente (par. 3, (a)), qui est, comme on l’a dit, l’OMI. De cette disposition, qui n’indique pas les critères propres à établir quand l’institution des voies de circulation ou des dispositifs de séparation du trafic maritime doivent être considérés comme visant à la sécurité de la navigation maritime, il semble qu’on puisse déduire qu’un Etat côtier, même s’il n’est pas membre de l’OMI, doit prendre en considération les pertinentes recommandations de celle-ci, afin de ne pas encourir la violation de l’interdiction ­d’empêcher les navires battant le pavillon d’Etats tiers d’exercer leur droit de passage inoffensif dans sa mer territoriale15. Il s’agit en fait d’une des ­hypothèses 12  Convention internationale sur l’intervention en haute mer en cas d’accident entraînant ou pouvant entraîner une pollution par les hydrocarbures, Bruxelles, 29 novembre 1969, (entrée en vigueur : 19 juin 1975), 970 U.N.T.S, 212. 13  G. A. A/52/491, 20 octobre 1997, Rapport du Secrétaire général. Répercussions de l’entrée en vigueur de la Convention des Nations Unies sur le droit de la mer de 1982 sur les instruments et programmes connexes, existants ou à l’état de projet, section J, paragraphes 8-9. 14   Parmi les autres, Thomas Dux, Specially Protected Marine Areas in the Exclusive Economic Zone (ZEE) (London : LIT Verlag, 2011) ; Donald R. Rothwell & Tim Stephens, The International Law of the Sea, (London : Hart Publishing, 2010) ; Bernard H. Oxman, « Environmental Protection in Archipelagic Waters and International Straits. The Role of the International Maritime Organization », 10 Int’l J Marine & Coastal L., nº 467 (1995). 15  En ce sens Erietta Scalieris, L’exercice du pouvoir discretionnaire de l’Etat côtier en droit de la mer (Paris : Pedone, 2011) ; Erik J. Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution (London : Kluwer Law International, 1998) ; Oxman supra note 14, 476.

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où l’exhortation à se conformer à une recommandation non contraignante d’une organisation internationale déterminée descend d’un traité international autre que celui constitutif de cette organisation. Encore plus décisif c’est le rôle de l’OMI au sens des articles 41, par. 4 et 53, par. 9 de la CNUDM, si bien qu’il a été soutenu en doctrine que les deux dispositions donnent lieu à une co-operative legislative competence of an unusual kind de l’OMI avec l’Etat côtier ou avec l’Etat archipel16. En effet, aux termes des deux dispositions, avant de désigner ou remplacer des voies de circulation ou de prescrire ou de remplacer des dispositifs de séparation du trafic, l’un ou l’autre Etat « soumet ses propositions pour adoption à l’organisation internationale compétente ». Si l’OMI approuve ces propositions, l’Etat riverain d’un détroit ou l’Etat archipel peut désigner, prescrire ou remplacer ces voies de circulation ou dispositifs de séparation du trafic. En outre « les navires étrangers exerçant le droit de passage en transit [passage archipélagique] respectent les voies de circulations et les dispositifs de séparation du trafic établis conformément » à l’article 41 ou à l’article 5317. La coopération entre l’Etat côtier et l’OMI en matière de sécurité de la navigation est en outre prévue par l’Annexe à la Convention internationale pour la sauvegarde de la vie humaine en mer (SOLAS)18. Au Chapitre V, intitulé Safety of navigation, amendé plusieurs fois19, il est prévu, entre autre, que l’Etat côtier puisse demander à l’OMI d’adopter un système de notification obligatoire du trafic maritime (Ship Reporting System : SRS) en vue de « contribute to safety of life of sea, safety and efficiency of navigation and or/protection of the marine environment » (Regulation 11 (a)). En instaurant un SRS dans sa propre mer territoriale ou dans les zones de mer soumises à sa juridiction, un Etat côtier entend obtenir des navires, soit battant son pavillon soit étrangers, qui naviguent ou traversent ces espaces marins, les renseignements nécessaires pour les identifier et pour connaître à l’avance le type de cargaison et les marchandises qui se trouvent à bord20. La collecte de renseignements peut permettre à l’Etat côtier d’intervenir rapidement et d’agir de manière optimale

16  Oxman supra note 14, 479 et Scalieris supra note 15, 173. 17  V. les paragraphes 7 et 11, respectivement, des articles 41 et 53 CNUDM. 18  Convention internationale pour la sauvegarde de la vie humaine en mer, London, 1 novembre 1974 (entrée en vigueur le 25 mai 1980), 1184 UNTS, 278. 19  Aux fins de notre travail, l’amendement le plus important est celui approuvé par le Comité de la sécurité marine de l’OMI, par sa résolution MSC.31(63) du 23 mai 1994. 20  Matteo Fornari, Il regime giuridico degli stretti utilizzati per la navigazione marittima (Milano : Giuffrè, 2010).

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en cas d’accidents21, qui pourraient aussi provoquer de graves risques de pollution marine. Le mécanisme prévu par la Regulation 11 encourage l’Etat côtier à coopérer avec l’OMI. Il est vrai qu’aux termes de la lettre d), « ship reporting systems not submitted to the Organization for adoption do not need to comply with this Regulation » ; toutefois, en premier lieu, même dans ce dernier cas « Governments implementing such systems are encouraged to follow, wher­ ever possible, the guidelines and criteria developed by the Organization »22. En deuxième lieu, à défaut d’une autorisation spécifique de l’OMI, il sera plus difficile pour l’Etat côtier de démontrer que son SRS ne viole pas les règles coutumières et de la CNUDM relatives au passage inoffensif ou à celui en transit ainsi qu’à la liberté de navigation23. Enfin, et c’est probablement ce qui compte davantage pour l’Etat côtier, seulement un SRS « adopted and implemented in accordance with the guidelines and criteria developed by the Organization pursuant to this regulation, shall be used by all ships or certain categories of ships carrying certain cargoes in accordance with the provisions of each system so adopted »24.

La réglementation de la sécurité de la navigation dans les ‘zones particulières’ visées à l’Art. 211, par. 6 CNUDM et dans les ‘zones maritimes particulièrement vulnérables’ (ZMPV)

La coopération entre l’Etat côtier et l’OMI en matière de sécurité de la navigation maritime est également requise au cas où seraient instituées des zones marines déterminées pour la protection de l’environnement marin. Considérons, par exemple25, les ‘zones particulières’ visées à l’art. 211, par. 6 CNUDM. En matière de pollution provenant de navires, l’art. 211 prévoit tout d’abord, au par. 1, que les Etats contractants parties à la Convention fixent – dans le cadre de l’organisation internationale compétente (l’OMI) ou par le 21  Id., 142. 22  SOLAS, V-11 (d). 23  SOLAS, V-11(h). 24  SOLAS, V-11 (a). Sur ce point voir Scalieris supra note 15, 170-172. 25  Pour une analyse des différentes zones marines protégées qui peuvent être insti­ tuées, pour plusieurs raisons, dans la ZEE, v. Dux supra note 14, passim ; pour celles de la haute mer Tullio Scovazzi, « Marine Protected Areas on the High Seas : Some Legal and Policy Considerations », 19 Int’l J Marine & Coastal L., 1 (2004), voir aussi, Yoshifumi Tanaka, The International Law of the Sea (Cambridge : Cambridge University Press, 2012), 324-333 ; Sarah Wolf, Marine Protected Areas, dans Wolfrum, supra note 10, vol. 6, 355.

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biais de conférences ad hoc – des règles, normes et dispositifs de circulation des navires en vue de prévenir la pollution marine provenant de navires et de « réduire à un minimum le risque d’accidents susceptibles de polluer le milieu marin, y compris le littoral, et de porter atteinte de ce fait aux intérêts connexes des Etats côtiers. ». Ni le par. 1 ni les autres paragraphes de l’art. 211 ne mentionnent la sécurité de la navigation. Il faut toutefois considérer comme implicite la référence à celle-ci. En effet, il convient de rappeler que par sécurité on entend la sécurité de la navigation qui risque d’être compromise par des incidents techniques causés, par exemple, par les mauvais fonctionnements du navire ou par des erreurs humains26 et que tant les lois en matière de sécurité que celles en matière de sûreté27 sont orientées à la sauvegarde des personnes à bord des navires (passagers et équipage), des biens (navires, cargaison, autres biens à bord), mais aussi, ce qui n’est pas moins important, de l’environnement marin28. Aux termes du par. 2 de l’art. 211, les règles et les normes internationales généralement acceptées servent de paramètres pour les lois internes que les Etats parties à la CNUDM doivent appliquer aux navires battant leur propre pavillon. Néanmoins il y a des Etats qui n’ont ratifié ni la CNUDM ni d’importantes conventions en matière de pollution provenant de navires et en matière de sécurité de la navigation, ou bien qui sont parties contractantes seulement à la Convention de Montego Bay ou seulement à quelques-unes des autres conventions. Cela encourage le phénomène des pavillons de complaisance. En fait, certains armateurs, pour éviter de devoir se conformer à des lois étatiques particulièrement strictes et susceptibles d’influencer les coûts et profits de leur activité, immatriculent des navires auprès d’Etats qui sont liés par le moindre nombre possible d’accords internationaux contenant des obligations en matière de sécurité ou qui, tout en étant parties contractantes à ces accords, n’ont pas la capacité ou la volonté d’effectuer des contrôles sur le respect des sus-dites règles et normes internationales généralement acceptées. Même pour obvier à ce problème, il est prévu dans la CNUDM que l’Etat côtier – outre à pouvoir adopter, dans les zones de mer assujetties à sa souveraineté ou dans lesquelles il exerce des droits fonctionnels, les sanctions 26  Monica Brignardello, « La normativa comunitaria in materia di safety della navigazione marittima », Sicurezza, navigazione e trasporto, ed. Rita Tranquilli-Leali & Elisabetta G. Rosafio (Milano : Giuffrè, 2008), 175. 27  Comme il est bien connu, la réglementation en matière de sûreté de la navigation a pour objet la prévention et la répression des actes illicites en mer commis avec l’intention de causer des dommages. 28  Brignardello, supra note 26, 176.

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indiquées par l’art. 220 à l’égard de tous les navires marchands, y compris les navires étrangers29 ; outre à pouvoir adopter des lois et règlements relatifs à la pollution par les navires applicables dans la mer territoriale30 et à pouvoir engager, s’il y a lieu, les procédures arbitrales ou juridictionnelles des articles 286 et 287 à l’encontre d’un Etat du pavillon qui n’effectue pas sur ses propres navires les contrôles relatifs à la sécurité de la navigation31 – puisse être autorisé par l’OMI à instituer une zone marine protégée. Cette dernière peut s’étendre seulement dans « une zone particulière et clairement définie » de la ZEE de l’Etat côtier demandeur. En outre elle peut être instituée en vue de l’adoption de mesures obligatoires spéciales pour la prévention de la pollution par les navires qui seraient réputées nécessaires, compte tenu des caractéristiques océanographiques et écologiques, à son 29  V. l’étude approfondie de Hugo Caminos, « Enforcement Jurisdiction under the United Nations Convention on the Law of the Sea : an Overview », Holger Hestermeyer et al., Coexistence, Cooperation and Solidarity : Liber Amicorum Rüdiger Wolfrum (Leiden : Martinus Nijhoff Publishers, 2012). 30  Article 211, par. 4 CNUDM. 31  Un pareil recours aurait pour objet l’éventuelle violation de la part d’un Etat du pavillon de l’art. 94, paragraphes 3-5 CNUDM. Bien qu’il ne concerne pas la sécurité de la navigation, un différend relatif aussi à la question des pavillons de complaisance est actuellement pendant devant le Tribunal international du droit de la mer (TIDM). Dans l’affaire du navire « Virginia G » (Panama/Guinée Bissau), causée par l’arrêt de la part des autorités de la Guinée Bissau du pétrolier Virgina, battant pavillon panaméen, alors qu’il menait des opérations de ravitaillement en fioul dans sa propre ZEE, la Guinée Bissau a proposé une demande reconventionnelle jugée recevable par le TIDM dans l’ordonnance du 2 novembre 2012 (www.itlos.org). Dans la demande reconventionnelle, la Guinée-Bissau a affirmé que : « le Panama a enfreint l’article 91 de la Convention en accordant sa nationalité à un navire n’ayant pas de lien substantiel avec lui, ce qui a permis à ce navire de se livrer à des activités de ravitaillement en combustible non autorisées, et donc illicites, dans la ZEE de la Guinée-Bissau et que la Guinée-Bissau est en droit de réclamer au Panama la réparation de tous les dommages et coûts causés par le ‘Virginia G’ à la Guinée-Bissau qui résultent de l’octroi par le Panama d’un pavillon de complaisance à ce navire » (par. 16). Un avis consultatif a été en outre demandé toujours à l’ITLOS, en date du 28 mars 2013, par la Commission sous-régionale des pêches, ayant pour objet la responsabilité de l’Etat du pavillon en cas d’activités de pêche illicites, non déclarées, non réglementées menées dans la ZEE d’un Etat membre de cette organisation (www .itlos.org.). Sur le TIDM, voir, pour tous, Hugo Caminos, The International Tribunal for the Law of the Sea : An Overview of its Jurisdictional Procedure, 5 Law & Practice Int’l Courts & Tribunals, 13 (2006). Plus en général, sur le système de règlement des différends de la Partie XV de la CNUDM, je me permets de renvoyer, même pour des références bibliographiques ultérieures, à Roberto Virzo, Il regolamento delle controversie nel diritto del mare : rapporti tra procedimenti 22-35 ; 69-99 ; 153-164 (CEDAM, 2008).

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utilisation ou à la protection de ses ressources et au caractère particulier du trafic. La requête d’instituer la zone particulière peut être effectuée lorsque l’Etat côtier intéressé est raisonnablement fondé à considérer que dans une telle zone les règles et les normes internationales généralement acceptées du par. 1 ne soient pas suffisantes et que, par conséquent, il soit nécessaire d’avoir recours à des mesures obligatoires spéciales. Partant, puisqu’on indique seulement des critères génériques pour la détermination de la zone particulière et qu’on n’a pas posé de conditions objectives desquelles faire dépendre la décision sur la possibilité d’adopter des mesures particulières visant à prévenir la pollution provenant de navires dans cette zone, l’art. 211, par. 6, de même que les articles 22, 41 et 53 CNUDM, ne laisse pas à l’évaluation discrétionnaire exclusive de l’Etat côtier l’institution de la zone marine protégée et l’adoption des mesures ad hoc applicables à cette dernière. Plus précisément, l’art. 211, par. 6 établit qu’il appartient à ­l’organisation internationale compétente, soit à l’OMI, de décider « si la situation dans la zone considérée répond aux conditions précitées ». Après avoir obtenu l’autorisation de l’OMI, l’Etat côtier pourra adopter des mesures particulières, en les notifiant à l’Organisation internationale elle-même et, après du moins 15 mois de la communication, en exiger le respect de la part des navires étrangers naviguant dans la zone particulière. Un mécanisme de coopération entre l’OMI et un ou plusieurs Etats membres côtiers pareil à celui prévu par l’art. 211, par. 6 CNUDM et orienté aussi à renforcer la sécurité de la navigation maritime, est établi par un acte non contraignant mais qui a été adopté à plusieurs occasions, à savoir les Lignes directrices pour l’identification et détermination de ‘zones marines particulièrement vulnérables’ édictées par l’OMI en 199132 et amendées par Resolution A.982 du 1er Décembre 200533. Sur la base de ce qui est prévu au par. 4.4 des Lignes directrices, pour pouvoir qualifier une zone marine comme ZMPV, elle doit tout d’abord être importante pour l’OMI pour des raisons environnementales, socio-économiques,

32  OMI Res. A.720(17), Guidelines for Identification and Designation of Particularly Sensitive Sea Areas, 6 Novembre 1991. 33  Il est intéressant de remarquer que deux ZMPV – celle de la Sea Area around the Florida Keys, OMI Res. MEPC.98(47), 8 mars 2002 et celle de la Papahãnaumokuãkea Marine National Monument, OMI Res. MEPC.8(56), 5 avril 2007 – ont été autorisées par l’OMI à la requête des Etats Unis d’Amérique, lesquels, n’ayant pas été parties contractantes à la CNUDM, ne peuvent pas demander l’institution de zones particulières aux termes de l’art. 211, par. 6 de la Convention de Montego Bay.

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culturelles, scientifiques ou éducatives34. Un deuxième présupposé est étroitement lié à la sécurité de la navigation, étant requis que « in addition to meeting at least one of the criteria listed in 4.4, the recognized attributes of the area should be at risk from international shipping activities »35. Contrairement à la zone particulière de l’art. 211, par. 6 CNUDM, une ZMPV ne doit pas être nécessairement circonscrite à une zone limitée et clairement définie d’une ZEE, dès lors qu’elle peut s’étendre « within and beyond the limits of the territorial sea ». Il en résulte qu’il est possible d’instituer une ZMPV dans la mer territoriale, la zone contiguë et la ZEE d’un ou plusieurs Etats membres de l’OMI36. En outre, il semblerait qu’on puisse déduire l’admissibilité d’une ZMPV dans des zones de haute mer lorsque, au-delà de la mer territoriale, un Etat côtier n’a institué aucune zone fonctionnelle37. Par ailleurs, jusqu’ici cela ne s’est vérifié pour aucune des treize ZMPV autorisées par l’OMI38. Les propositions pour l’institution d’une ZMPV et des mesures applicables à celles-ci doivent être soumises par l’Etat ou par les Etats membres intéressés à l’OMI, laquelle « is the only international body responsible for designating areas as Particularly Sensitive Sea Area and adopting protective measures »39. L’éventuelle résolution de l’OMI contient la désignation de la ZMPV et ­l’approbation de mesures de protection spéciales ainsi que des recommandations adressées aux autres Etats – which should take all appropriate steps to ensure that ships flying their flag comply with the associated protected measures 34  Une ZMPV qui répond à tous les intérêts sus-mentionnés est celle de la Papahãnaumokuãkea Marine National Monument OMI Res. MEPC.8(56), supra, note 33, sur laquelle voir, James Kraska, Maritime Powers and the Law of the Sea (Oxford : Oxford University Press, 2011), 371-374. 35  OMI Res. A.982(24), Annex, par. 5.1. 36  Cela s’est produit pour les ZMPV suivantes : Wadden Sea, OMI Res. MEPC.101(48), 11 octobre 2002 ; Western European Waters, OMI Res. MEPC.121(52), 15 octobre 2004 ; Great Barrier Reef and Torres Strait, OMI Res. MEPC.133(53), 22 juillet 2005 ; Baltic Sea Area, OMI Res. MEPC.136(53), 22 juillet 2005 ; Strait of Bonifacio, OMI Res. MEPC.204(62), 15 juillet 2011. 37  Sur la question des ZMPV en haute mer, v. Markus J. Kachel, Particularly Sensitive Sea Areas. The OMI’s Role in Protecting Vulnerable Marine Areas (Springer, 2008) : 274-280. 38  En plus de celles mentionnées supra aux notes 33 et 36, on a institué les ZMPV suivantes : Archipelago of Süabana-Camaguey, OMI Res. MEPC.74(40) 25 septembre 1997 ; Sea Area around Malpelo Island, OMI Res. MEPC.97(47), 8 Mars 2002 ; Paracas National Reserve, OMI Res. MEPC-106(49), 18 juillet 2003 ; Canary Island, Res. OMI MEPC.134(53), 22 juillet 2005 ; Galapagos Archipelago, OMI Res. MEPC.135(53), 22 juillet 2005 ; The Saba Bank, OMI Res. MEPC.226(64), 5 octobre 2012. 39  OMI Res. A.982, supra note 35, Annex, par. 3.1.

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adopted 40 – ou des décisions contraignantes. A cet égard il est significatif de remarquer que pour certaines ZMPV l’OMI a adopté des mesures obligatoires pour ses membres justement en matière de sécurité de la navigation. Au sujet de la ZMPV de l’archipel des Galapagos, après avoir précisé dans la résolution constitutive que cette ZMPV « will enhance maritime safety, safety of navigation and protection of the marine environment in the area concerned »41, l’OMI, a adopté a New Mandatory Ship Reporting System42 applicable à tous les bateaux et, à cette fin, a conféré des pouvoirs de contrôle à l’Etat côtier (Equateur).

Les compétences en matière de sécurité de la navigation qui peuvent être exercées de façon autonome par l’Etat côtier

L’adoption de la part de l’Etat côtier de mesures visant à renforcer la sécurité de la navigation maritime ne suppose pas toujours la coopération avec l’OMI ou n’est pas toujours subordonnée à des autorisations par cette dernière. En effet, en vertu d’autres normes de droit international conventionnel, certaines compétences relatives à cette matière peuvent être exercée de manière autonome par l’Etat côtier. A cet égard, un exemple significatif est représenté par l’art. 234 CNUDM, ayant pour objet les ‘zones recouvertes par les glaces’ : Les Etats côtiers ont le droit d’adopter et de faire appliquer des lois et règlements non discriminatoires afin de prévenir, réduire et maîtriser la pollution du milieu marin par les navires dans les zones recouvertes par les glaces et comprises dans les limites de la zone économique exclusive, lorsque des conditions climatiques particulièrement rigoureuses et le fait que ces zones sont recouvertes par les glaces pendant la majeure partie de l’année font obstacle à la navigation ou la rendent exceptionnellement dangereuse, et que la pollution du milieu marin risque de porter gravement atteinte à l’équilibre écologique ou de le perturber de façon irréversible. Ces lois et règlements tiennent dûment compte de la navigation, ainsi que de la protection et de la préservation du milieu marin sur la base des données scientifiques les plus sûres dont on puisse disposer.

40  Id., par. 9.1. 41  OMI Res. MEPC.135(53), supra note 38, par. 3.5. 42  OMI Res. MSC.229(82), 5 décembre 2006.

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Compte tenu du libellé de cette disposition, il semble difficile qu’un Etat côtier, en la mettant en oeuvre, puisse s’exposer à une sorte de ‘détournement de pouvoir’, en adoptant des mesures nationales concernant la sécurité de la navigation pour des fins autres que celles consistant dans la protection du milieu marin d’une zone recouverte par les glaces. En fait, l’art. 234 CNUDM ne donne pas lieu à des doutes interprétatifs et spécifie qu’une zone de la ZEE est qualifiée comme recouverte par les glaces si elle est recouverte pendant la majeure partie de l’année ; que l’objectif des mesures qui peuvent être adoptées dans cette zone c’est d’éviter des accidents de la navigation susceptibles de provoquer des désastres environnementaux ou de compromettre gravement l’écosystème marin ; que seulement lorsque les conditions climatiques sont particulièrement rigoureuses et les glaces rendent effectivement dangereuse la navigation, cette dernière peut faire l’objet de restrictions unilatérales de la part de l’Etat côtier ; et que, enfin, les mesures qui peuvent être adoptées ne peuvent pas être discriminatoires, c’est-à-dire qu’elles doivent être appliquées même à l’égard des navires battant le pavillon de l’Etat côtier. En définitive, contrairement à l’art. 211, par. 6, dont il constitue, comme il a été remarqué, lex specialis43, l’art. 234 indique des critères moins discrétionnaires pour l’adoption de mesures nationales relatives à la sécurité de la navigation, au point de ne pas rendre nécessaire la coopération dans la compétence législative entre l’OMI et l’Etat côtier44. D’ailleurs, parmi les dispositions avec lesquelles l’art. 234 doit être interprété systématiquement il y a l’art. 194, par. 5 CNUDM, qui requiert des Etats contractants de prendre des mesures « nécessaires pour protéger et préserver les écosystèmes rares ou délicats ainsi que l’habitat des espèces et autres organismes marins en régression, menacés ou en voie d’extinction ». Or, dans la ZEE, « qu’elle soit ou non recouverte par les glaces, le destinataire principal de cette obligation est l’Etat côtier, auquel, plus en général, est attribuée la 43  Dux, supra note 14, 212. 44  Voir sur ce point Kristin Bartenstein, « The Artic Exception in the Law of the Sea Convention : A Contribution to Safer Navigation in the Northwest Passage? », 42 Ocean Development & Int’l L. nº 22 (2011) : 37. Dux, supra notes 14, 213 commente : « However, despite the fact that under Art. 34 LOSC the Coastal State is not obliged to approach the OMI for approval of its legislation, it still may wish to do so as a matter of practically and due publicity ». Voir aussi Tedl McDorman, « National Measures for the Safety of Navigation in Arctic Waters : NORDREG, Article 234 and Canada », The Law of the Sea Convention : US Accession and Globalization, ed. Myron H. Nordquist et al (Leiden : Martinus Nijhoff Publishers, 2012), 409-424.

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juridiction (. . .) en ce qui concerne la protection et la préservation du milieu marin »45. Il en résulte que l’absence d’une prévision dans l’art. 234 d’un rôle spécifique de l’OMI dépend tant des conditions que la disposition pose pour limiter le pouvoir discrétionnaire de l’Etat côtier d’adopter des mesures relatives à la sécurité de la navigation, que de l’objectif que les mesures en question entendent poursuivre, visant en même temps à la mise en œuvre de l’obligation de protéger et préserver les écosystèmes rares ou délicats46 ; obligation qui, comme on l’a dit, dans la ZEE incombe à l’Etat côtier. De même, l’exercice de compétences ultérieures de l’Etat côtier est relié aux zones de sécurité d’une largeur maxima de 500 mètres que l’Etat peut instituer autour des îles artificielles, installations et structures dans la ZEE (art. 60, paragraphes 4-6, CNUDM) ou sur le plateau continental (art. 80 CNUDM), y compris celles expressément construites pour des activités de recherche scientifique marine (art. 260 CNUDM). En fait ces zones, bien qu’elles soit tout d’abord orientées à « assurer la sécurité de la navigation comme celle des îles artificielles, installations et ouvrages », résultent instrumentales à l’exercice des droits exclusifs de l’Etat côtier de procéder à la construction et d’autoriser et réglementer la construction, l’exploitation et l’utilisation d’îles artificielles, à savoir de réglementer, autoriser et effectuer la recherche scientifique marine dans la ZEE ou sur le plateau continental. Puisque tous les navires doivent respecter les zones de sécurité47, la CNUDM permet à l’Etat côtier de les instituer unilatéralement seulement si, comme on l’a dit, elles ne s’étendent pas au-delà de 500 mètres48. Si l’Etat côtier a besoin de proclamer une zone de sécurité plus étendue, il devra vérifier si cela est conforme aux normes internationales généralement acceptées ou aux recommandations de l’OMI49.

45  Art. 56, par. 1b) iii, CNUDM. 46  Pour les régions polaires, v. Lilian del Castillo Laborde, « Environmental Awareness Regarding the Arctic and Antarctic Regions », The Antarctic Legal System : the Protection of the Environment of the Polar Regions, ed. Gianfranco Tamburelli (Milano : Giuffrè, 2008), 27. 47  Article 60, par. 6, CNUDM. 48  Concernant les limites au pouvoir discrétionnaire d’instituer des zones de sécurité aux termes de l’art. 60 CNUDM, v. Scalieris, supra note 15, 75-77. 49  Voir en particulier OMI Res. A.671 (16), 19 octobre 1989. Par contre, l’art. 260 CNUDM ne justifie pas la proclamation de zones de sécurité larges plus de 500 mètres autour des installations pour la recherche scientifique marine.

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Parmi les autres dispositions qui prévoient la possibilité pour l’Etat côtier d’exercer de façon autonome certaines compétences en matière de sécurité de la navigation, il faut mentionner l’art. 9 de la Convention internationale sur l’enlèvement des épaves50. En effet, cet article prévoit que dans sa ZEE51 l’Etat côtier peut fixer les conditions nécessaires à assurer que l’enlèvement d’une épave d’un navire qui ne battait pas son pavillon soit effectué par l’Etat d’immatriculation du navire « d’une manière qui respecte les aspects liés à la sécurité et à la protection du milieu marin » (paragraphes 4 et 5). Il y a enfin des normes en matière de sécurité de la navigation qui, outre à attribuer des compétences – et à imposer des obligations – notamment aux Etats côtiers, souhaitent la coopération entre ces derniers et les Etats du pavillon. Cette catégorie comprend l’article 43 CNUDM et la Regulation 13 du Chapitre V SOLAS ayant trait aux aides à la sécurité de la navigation, tels que, par exemple les phares et les signalisations maritimes52. La première disposition est applicable aux détroits internationaux, la deuxième à n’importe quelle zone de mer. En outre, c’est seulement cette dernière qui prévoit explicitement une obligation pour l’Etat côtier d’organiser les aides à la navigation nécessaires pour garantir un niveau élevé de sécurité. L’une et l’autre, par contre, recommandent aux Etats côtiers ou aux Etats riverains de détroits, d’un côté, et aux Etats de pavillon, de l’autre, de coopérer pour l’installation et le fonctionnement de ces aides à la navigation53.

50  Cette Convention a été signée à Nairobi le 18 mai 2007 (non encore en vigueur). 51  Ou bien si l’Etat côtier partie à la Convention de Nairobi n’a pas institué une ZEE dans « une zone située au delà de la mer territoriale de cet Etat et adjacente à celle-ci, que cet Etat a définie conformément au droit international et qui ne s’étend pas au-delà de 200 milles marins des lignes de base à partir desquelles est mesurée la largeur de sa mer territoriale » (art. 1, par. 1). 52  A cet égard voir, David H. Anderson, Funding and Managing International Partnership for the Malacca and Singapore Straits, Consonant with Article 43 of the UN Convention on the Law of the Sea, 3 Singapore J. Int.l & Comp. L. (1999) : 444 ; Nilüfer Oral, « Straits Used in International Navigation, User Fees and Article 43 of the 1982 Law of the Sea Convention », 20 Ocean Yearbook (2006) : 561 ; Roberto Virzo, « Lighthouses and Lightships », Wolfrum, supra note 10, vol. VI, 873. 53  A ce sujet, un exemple est représenté par le « Co-operative Mechanism between the Littoral States and User States on Safety Navigation and Environmental protection in the Straits of Malacca and Singapore du 16 août 2007. Cf. OMI/SGP 2.1/1, notamment paragraphes 18-19.

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Considérations finales

La classification et l’analyse de normes de traités internationaux relatifs au droit de la mer et de résolutions OMI effectuées dans les paragraphes précédents rendent possibles quelques considérations finales. En premier lieu, d’un point de vue général, on remarque que la prolifération de traités et d’actes d’organisations internationales comprenant des normes et règles standards dont l’application vise à éviter des incidents de la navigation causés par accidents, collisions, affaissements structuraux ou par des conditions et temps de travail intolérables pour les marins, répond au besoin accru de sécurité – entendue dans ses différentes acceptions –, qui caractérise la ‘moderne société du risque’54 Comme il a été remarqué, le sentiment de risque diffusé qui caractérise la société actuelle a en effet développé la perception, de la part de l’opinion publique, de la capacité de l’homme de contrôler non seulement les événements dangereux causés par des actions ou omissions mais même – dans certaines limites – les événements résultant de catastrophes naturelles, dont on estime pouvoir du moins limiter (voire éliminer complètement) les effets préjudiciables. Cela a fait naître une prétention ou une attente, de la part de la collectivité, à ce que tous ceux qui ont la possibilité d’intervenir pour éliminer ou réduire le risque adoptent les mesures nécessaires pour garantir les conditions de sécurité55. Comme on l’a décrit aux paragraphes précédents, dans le droit international il est requis que, relativement à la sécurité de la navigation, de telles mesures soient également adoptées ou mises en œuvre par l’Etat côtier. Or, une deuxième considération concerne justement l’implication de l’Etat côtier et, plus précisément, les compétences qui lui sont attribuées à cette fin. En effet si, d’un côté, on examine les dispositions en vertu desquelles l’Etat côtier est tenu de coopérer avec l’OMI et les compare avec celles qui lui permettent d’intervenir de façon autonome ou qui lui imposent d’adopter certaines mesures et, de l’autre côté, on procède à une interprétation coordonnée de la CNUDM avec d’autres traités et avec des résolutions OMI, il est possible d’affirmer que le dépassement du rôle prééminent de l’Etat du pavillon en matière de sécurité de la navigation maritime repose ‘simplement’ sur

54  En ce sens Francesca Pellegrino, « I nuovi orizzonti della sicurezza marittima », Scritti in onore di Francesco Berlingieri (Roma : Il diritto marittimo, 2010). 55  Id., 79.

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l­ ’évolution de la délimitation générale des compétences respectives de ce dernier et de l’Etat côtier56. Autrement dit, la classification effectuée aux paragraphes 3, 4 et 5 montre que les compétences ayant trait à la sécurité de la navigation attribuées principalement à l’Etat côtier et, par conséquent, soustraites ou – si elles sont reliées à des activités réglementées plus récemment – non attribuées au pouvoir exclusif de l’Etat du pavillon s’avèrent être accessoires à l’exercice des droits souverains, des pouvoirs de contrôle ou de la juridiction que le droit international de la mer en vigueur réserve au premier de ces deux Etats. En fait, comme on l’a vu, les prérogatives de l’Etat côtier ou de l’Etat riverain comprennent, par exemple, la gestion des zones de sécurité proclamées autour des îles et des installations artificielles de la ZEE ou du plateau continental ; la réglementation dans la ZEE des activités d’enlèvement d’épaves en sécurité ou l’administration des aides à la navigation dans les détroits internationaux. Par contre, c’est principalement à l’Etat du pavillon qu’il appartient la compétence à adopter les mesures nécessaires pour garantir la sécurité de la navigation du navire ainsi qu’à contrôler la mise en œuvre de pareilles mesures, comme il est par ailleurs prévu par l’art. 94, paragraphes 3-5 CNUDM. Il s’ensuit que seulement s’ils sont autorisés par l’OMI ou agissent en coopération avec celle-ci – dans le cadre de laquelle sont d’ailleurs adoptées les règles et normes internationales auxquelles doivent se conformer les mesures nationales adoptées par l’Etat du pavillon – l’Etat côtier, l’Etat archipel ou l’Etat riverain peuvent avoir recours à des mesures de sécurité ultérieures qui affectent (suivant qu’il s’agisse de mer territoriale, eaux archipélagiques, détroits internationaux, zone contiguë, ZEE ou zones marines protégées de différente nature) le droit de passage inoffensif ou en transit ainsi que la liberté de navigation des navires battant pavillon d’un Etat tiers. Le concours de compétences entre OMI, Etat côtier et Etat du pavillon amène à une troisième considération. Il nous semble que, surtout, l’exercice de compétences ultérieures en matière de sécurité par l’Etat côtier, éventuellement attribuées à travers le filtre de l’OMI, qui comportent une compression de celles de l’Etat du pavillon – et vice versa – soit fondé sur la sauvegarde d’intérêts non seulement de l’Etat qui à chaque fois les revendique mais de la communauté internationale dans son ensemble. Ainsi par exemple, comme on l’a remarqué, l’institution d’une ZMPV suppose qu’il s’agisse d’une zone marine considérée comme importante par l’OMI, et 56  Bien entendu, il faut considérer comme également importantes les compétences que l’Etat côtier exerce en tant qu’Etat du port d’abordage à la requête d’un différent Etat côtier ou de l’Etat du pavillon.

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donc par la communauté internationale, pour des raisons environnementales, socio-économiques, culturelles, scientifiques ou éducatives. C’est-à-dire qu’il doit s’agir d’une zone où un ou plusieurs Etats côtiers prévoient des mesures spéciales de sécurité de la navigation, lesquelles, compte tenu aussi du phénomène des pavillons de complaisance et de la ratification non universelle des pertinentes conventions OMI, sont nécessaires pour prévenir non seulement les désastres écologiques provoqués par le rejet d’hydrocarbures mais aussi des cas moins graves de pollution marine par les navires. Il suffit de penser, pour citer un exemple, combien il soit fondamental pour l’Equateur et pour la communauté internationale tout entière de garantir le plus haut niveau de protection de l’environnement et de l’écosystème de l’Archipel des Galapagos qui, comme le rappelle la résolution OMI instituant la ZMPV, « ha[s] been declared a national and World Heritage site, recognized word-wide for its scientific and cultural importance »57. De même, l’exigence de la communauté internationale d’éviter que se produisent de graves accidents de la navigation susceptibles de provoquer des pertes de vies humaines ou de graves préjudices au milieu marin peut encourager la coopération entre puissances maritimes et un Etat côtier lequel, pour des raisons économiques, éventuellement transitoires, ne possède pas ou ne soit pas en mesure de garantir la gestion ordinaire d’aides à la navigation sophistiquées et coûteuses. Déjà après le terrible naufrage de la frégate Dona Isabel, qui eut lieu en janvier 1861 près de Cap Spartel dans la mer territoriale du Maroc, avec la mort de toutes les personnes à bord, y compris 250 cadets, fut décidé en 186558 l’institution d’une commission internationale, sur le modèle de celles pour la navigation du Rhin et du Danube, chargée d’instituer et administrer le phare de Cap Spartel59. Plus récemment, en août 2007, un accord a été conclu entre les Etats riverains et les Etats qui utilisent les détroits de Malacca et Singapour60. Cet accord, en application de l’art. 43 CNUDM, a prévu l’institution d’un fonds pour la réparation, la restauration et la gestion des aides à la navigation endommagées par le tsunami de décembre 200461. 57  OMI Res. MEPC135(53), supra note 38, par. 3.4. 58  Convention Concerning the Administration and Upholding of the Lighthouse at Cape Spartel, Tangier, 31 Mai 1865 (entrée en vaguer : 14 février 1867), 16 Am. J. Int.l L. Supplement (1912) : 14-17. 59  A cet égard voir David J. Bederman, « The Souls of International Organizations : Legal Personality and the Lighthouse at Cape Spartel », 36 Va J. Int.l L., (1996) : 275 qui a mis en évidence qu’il s’est agi d’une expérience de « collective adoption of responsibility by a group of states for an activity of importance for the entire global community ». 60  Cf. supra note 53. 61  Fornari, supra note 20, 263.

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Une dernière remarque concerne les dispositions de la CNUDM relatives à la sécurité de la navigation dans lesquelles est rappelée ou tout au moins sous-tendue la sauvegarde des intérêts généraux de la communauté internationale, et qui peuvent aider à clarifier certains doutes interprétatifs soulevés par l’art. 59 CNUDM62. Cet article poursuit des objectifs similaires aux objectifs des dispositions susmentionnées dès lors qu’il vise à régler les conflits, ayant pour objet d’établir qui est titulaire ou qui peut exercer une ou plusieurs compétences résiduelles, qui peuvent surgir dans une ZEE déterminée entre l’Etat côtier et des Etats tiers. Plus exactement, comme il est bien connu, l’art. 59 est ainsi libellé : Dans le cas où la Convention n’attribue de droits ou de juridiction à l’intérieur de la zone économique exclusive, ni à l’État côtier ni à d’autres États et où il y a conflit entre les intérêts de l’État côtier et ceux d’un ou de plusieurs autres États, ce conflit devrait être résolu sur la base de l’équité et eu égard à toutes les circonstances pertinentes, compte tenu de l’importance que les intérêts en cause présentent pour les différentes parties et pour la communauté internationale dans son ensemble. Or, il nous semble que, de façon analogue à ce qui se produit pour la réglementation de compétences concurrentes en matière de sécurité de la navigation, la référence aux intérêts généraux de la communauté internationale puisse avoir une importance décisive pour établir si l’exercice d’une activité dans la ZEE, non expressément réglementée dans la CNUDM, doit être attribué à l’Etat côtier ou bien rentrer dans ce qui apparaît comme un régime des libertés de la haute mer de plus en plus ‘érodé’.

62  Sur cette disposition, même pour des références bibliographiques ultérieures, voir l’étude approfondie de Syméon Karagiannis, « L’article 59 de la Convention des Nations Unies sur le droit de la mer (ou les mystères de la nature juridique de la zone économique exclusive) », 37 Revue belge de droit international (2004) : 325-418.

PART 8 Piracy

⸪

Chapter 23

The Fight Against Piracy and the Enrica Lexie Case Angela Del Vecchio

The Current Problems Encountered by the International Community in the Fight Against Piracy

The resumption of new forms of piracy, which appeared to have been totally defeated and relegated to the past, is a direct consequence of crises that have engulfed some costal States, in particular Somalia, considered by the international community as belonging to the category of so-called ‘failed States’, in other words, States that are unable to control their own territory and population and hence to also prevent acts of robbery at sea.1 In the wake of the strengthening of international patrols off the coast of Somalia, the phenomenon of Somali piracy has gradually found itself pushed further out on to the high seas beyond the Horn of Africa, reaching as far as south of the Seychelles and east of India.2 It has also developed in other geographic areas, for example the Gulf of Guinea, mainly because of the enormous financial flows that the pirates are guaranteed from the payment of ransoms. It is clear that combating piracy is of interest not only to States but also to ship owners, charterers, traders, brokers, freight forwarders, investors, ship builders, financial institutions and insurers, in short, all those who have a stake in the security of maritime navigation. They, like the States and perhaps even more so than the States, have their interests hurt by piracy and in the event of a dispute breaking out, the issue arises as to what solutions are most appropriate to rapidly resolving it in a manner that is also fair and impartial.

1  See, amongst others, O.C. Iheduru, “Globalization, state failure and maritime insecurity in West Africa”, in 21 Ocean Yearbook (Leiden: Martinus Nijhoff Publishers & Transactions Publishers, May 2007), 475–504; P. Pustorino, “Failed States and International Law: The Impact of UN Practice on Somalia in Respect of Fundamental Rules of International Law”, in 53 German Yearbook of International Law (Berlin: Duncker & Humblot, 2010), 727–752. 2  On the extension of the areas at risk from piracy, see “BMP4 Best Management Practices for Protection against Somalia Based Piracy” (Version 4—August 2011), a document drawn up on the basis of IMO recommendations and available online at http://www.mschoa.org/bmp3/ Documents/BMP4%20low%20resolution%20(3).pdf.

© koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004283787_024

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In this regard one can observe a trend that tends to favour recourse to arbitration or an international court or tribunal to resolve issues that diplomatic means fail to settle. Certainly, non-compulsory methods of dispute resolution like negotiation, mediation etc. appear at times to private operators to be more concerned with protecting the interests of the States rather than those of other subjects and actors involved in the international community. That said, the decision to seek judicial settlement is frequently preferred to other means because increasingly often the protection of the rights of non-State actors, individuals and legal persons3 is guaranteed in numerous international treaties through recognition of rights of access to the most recently established international courts and tribunals. At times however, even in traditional disputes between States, recourse to arbitration or an international court or tribunal currently seems to be the tool best suited to resolving complex conflicts of interest in which feelings of public opinion run high in the States concerned and for the settlement of which diplomatic means appear to be ineffective.

Legal Aspects of the Dispute between Italy and India in Connection with the Enrica Lexie Incident. Conflict of Jurisdiction between Italy and India

A demonstration of the suitability if not the necessity of resorting to arbitration or to an international court to settle disputes that are complex from a political standpoint is afforded by precisely the one that has arisen between Italy and India in the aftermath of the incident that occurred on 15 February 2012 off the coast of the Indian State of Kerala. Following the incident two Italian Navy marines, Massimiliano Latorre and Salvatore Girone, on duty aboard the oil tanker Enrica Lexie as an anti-piracy measure, were charged with having caused the death of two Indian fishermen, who had been mistaken for pirates. To date diplomatic means to resolve the matter have not borne fruit and are not likely to despite the length of time that has passed, due also the strength of public feeling about the case. Accordingly, recourse to a compulsory means of dispute resolution would appear worthy of particular consideration. 3  See ex plurimis: Non-State Actors and Authority in the Global System, ed. R.A. Higgot, G.R.D. Underhill, A. Bieler (London: Routledge, 1999); A. Clapham, Human Rights Obligations of NonState Actors (Oxford: Oxford University Press, 2006); A. Del Vecchio, International Courts and Tribunals between Globalisation and Localism (The Hague: Eleven International Publishers, 2013), 5 and 119 ss.

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In reality, the facts of the dispute pose some legal questions of significant complexity, chief among which is what State has jurisdiction to adjudicate in relation to the criminal act, whether Italy or India, on the basis of the area of the sea that the incident occurred in and how the incident is to be legally classified. Another delicate issue concerns the applicability or not of the sovereign functional immunity of the Italian marines as organs of the State. In the search for the solution to the many issues raised by the incident and hence, first and foremost, which State has jurisdiction in the matter, it is necessary to consider the facts at the origin of the dispute, which as aforesaid arose following what was thought to be a pirate attack in waters off the coast of the Indian State of Kerala. It is important to stress that there is agreement between the parties on the point: in fact, in this regard in paragraph 20 of its judgment no. 4542 of 29 May 20124 the Court of Kerala states that “it can be safely concluded that the incident alleged in Ext. P2 is within the CZ/EEZ”.5 That the incident occurred in that particular location is confirmed in the Indian Supreme Court judgment of 18 January 2013,6 and this dual and repeated finding by the Indian courts is of particular importance because ruling out that the incident happened in Indian territorial waters means that the rules of the international law of the sea become applicable to resolving the case, in particular those set forth in the 1982 United Nations Convention on the Law of the Sea (UNCLOS). That convention is the cornerstone of international maritime law and also largely reflects customary law in the matter. As regards the case in point, one must consider firstly article 33 UNCLOS, which provides that in a zone contiguous to its territorial sea the coastal State may exercise the control necessary to prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or 4  See High Court of Kerala, judgment n. 4542 of 29th May 2012, paragraph 20 at http://high courtofkerala.nic.in. 5  In paragraph 18 of its judgment the Court of Kerala carefully examined the waters in which the incident occurred, commencing from the premise that “From the pleadings, it is clear that in addition to the dispute regarding the exercise of jurisdiction over the petitioners 1 and 2, there is some dispute regarding the place of incident as well” and the Court adds that “the place of occurrence would be within the Contiguous Zone of India (hereinafter referred to as CZ) which overlaps with the Exclusive Economic Zone (hereinafter referred to as EEZ)”. 6  See paragraph 84 of the Indian Supreme Court’s judgment (at http://supremecourtof india.nic.in), stating as follows: “Admittedly, the incident took place at a distance of about 20.5 nautical miles from the coastline of the State of Kerala, a unit within the Indian Union. The incident, therefore, occurred not within the territorial waters of the coastline of the State of Kerala, but within the Contiguous Zone, over which the State Police of the State of Kerala ordinarily has no jurisdiction”.

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­territorial sea.7 The charges in India that the two Italian marines, Massimiliano Latorre and Salvatore Girone, are facing do not in any way concern an infringement of fiscal, immigration or sanitary law committed within India’s territory or territorial sea but criminal liability for acts committed on board a ship flying the Italian flag in waters subject to the rules on navigation on the high seas. Therefore, it would not appear that the powers that a coastal State can exercise in the contiguous zone under international law are relevant in the present case. Accordingly, one must refer to the rules governing exclusive economic zones (EEZ) in as much as India, exercising the rights granted to coastal States under UNCLOS, has established a 200-mile EEZ off its coast. Consequently, the rules on contiguous zones and those on exclusive economic zones overlap in the waters where the Enrica Lexie incident occurred, as moreover acknowledged by the Court of Kerala in its judgment. Therefore, one must apply article 56 UNCLOS, which provides that in its EEZ the coastal State has sovereign rights for the purpose of exploiting and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil8 and other rights not relevant in the present case. Nonetheless, pursuant to the subsequent article 58, in that same zone alongside the rights enjoyed by a coastal State, the other States continue to be guaranteed the fundamental freedoms of the highs seas including in particular freedom of navigation. Should a conflict arise between the interests of the coastal State and those of any other State, article 59 UNCLOS provides that the conflict is to be resolved on the basis of equity and hence not automatically in favour of the coastal State’s jurisdiction but in

7  On the powers of the coastal State in its contiguous zone according to the literature, see amongst others D.P. O’Connell, The International Law of the Sea (Oxford: Oxford University Press, 1984), 745 ss.; H. Pazarci, “Le concept de zone contiguë dans la Convention sur le droit de la mer de 1982”, in Revue belge de droit international (1984–85): 249 ss.; I. Brownlie, Principles of Public International Law (Oxford: Oxford University Press, 2003), 192 ss.; B. Conforti, Diritto internazionale (Napoli: Editoriale Scientifica, 2013), 285 ss.; N. RONZITTI, Introduzione al diritto internazionale (Torino: Giappichelli, 2013), 115 ss. 8  The Court of Kerala went on to hold that as the incident had involved two Indians who had been fishing in the EEZ, the exclusive jurisdiction of the coastal State under article 56 UNCLOS was applicable because “The coastal state is entitled to enact any law which is not incompatible with the provisions of the Convention for maintaining law and order, and for exercising and protecting the rights including the lives of the persons employed/engaged in exercise of the above rights”. See paragraph 33 of the Court of Kerala’s judgment W.P.(C). No 4542 of 2012.

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light of all the relevant circumstances and taking into account the respective importance of the interests involved to the parties. Both Italy9 and India10 are duty bound to observe those provisions following their ratification of UNCLOS despite the fact that in the course of the dispute under consideration here India has declared that its domestic Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritimes Zones Act 1976 provides for other and additional rights of the coastal State in the CZ or EEZ and that consequently in its own domestic legal system it is the provisions of that Act and not the above mentioned international rules that are to apply. It should also be noted that when implementing that Act, in Statutory Order No. 67/E of 27 August 1981 India extended the reach of its Penal Code and Criminal Procedure Code to the CZ, the EEZ and the continental shelf, equating them with its territory as regards the law applicable therein.11 That position contrasts with the international obligations that India contracted through ratification of UNCLOS vis-à-vis the other States Parties. And in particular as against Italy. In reality, to comply with its convention obligations India should have amended the previously applicable domestic law and hence the rules contained in the 1976 Act and, even more so, should not have introduced new conflicting legislation. For their part, all organs of the Indian State, including the judiciary, should have respected and must respect the provisions of UNCLOS, also in view of the fact that the Indian legal system itself recognises a duty to interpret its own domestic law in a manner con­sistent with the international obligation that the country contracts. In this regard there is also a line of well established Indian Supreme Court case law, which the judgment of 18 January 2013 makes no reference to, according to which principles enshrined in a codifying convention that reproduce customary law constitute ‘part of the common law of India’ and as such are to be respected by the internal organs of the State.12 Furthermore, again on the topic of performance of treaties, the stance adopted by India would also appear to go against general international law, which provides that a State Party to a treaty can under no circumstances in its relations with other States Parties demand compliance with its d­ omestic law 9  Italy ratified UNCLOS on 13 January 1995. 10  India ratified UNCLOS on 29 June 1995. 11  In the Court of Kerala’s judgment one can read as follows in paragraph 22: “[. . .] in relation to an incident that occurs in the CZ/EEZ of India, the provisions of ICP and CrPc would be applicable, as if it occurred within the territory of India”. 12  See, for example, Indian Supreme Court judgment, M.V. Elisabeth & Others v. Harwan Investment and Trading Pvt. Ltd (1993), http://indiankanoon.org/doc/1515069/.

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that does not take account of the international obligations assumed. Such an approach is a breach of both customary law, especially pacta sunt servanda, and treaty law including the rules set forth in the Vienna Convention on the Law of Treaties, article 27 of which provides that a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. Against this background, it is truly surprising that in the Enrica Lexie case the Indian Supreme Court continues to insist that India’s domestic law takes precedence over international law.13 Moving on from the above indispensable premises in order to find a solution to the first issue, i.e. which State, Italy or India, has the right to try the marines for what happened off the coast of Kerala, one cannot escape from UNCLOS since both parties have acknowledged that the incident took place in the CZ/EEZ, which is an area subject to the law of the high seas, leaving aside India’s demand that its own domestic law be applied in those waters. In particular, one must examine the provisions of article 58 UNCLOS as well as those of article 86 in Part VII dealing with the high seas, acknowledging that the articles in question does not entail any abridgement of the freedoms enjoyed by all States in exclusive economic zones, including freedom of navigation. Again in that Part VII, of particular importance for the present case is the general rule enshrined in article 92 that grants exclusive jurisdiction over ships on the high seas to the flag State. That general rule is reaffirmed and expanded upon in the subsequent articles, especially in article 97, which provides that in the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, the State with jurisdiction to institute penal or disciplinary proceedings against such a person is either the flag State or the State of which such person is a national. Bolstering the jurisdiction of the flag State is another provision of paragraph 3 of that same article clarifying that an arrest or detention of the ship, even as a measure of investigation, can be ordered solely by authorities of the flag State, thereby further confirming the sole jurisdiction of the flag State over the ship. Moreover, on the specific applicability of article 97 to the case under consideration here, it should be noted that different opinions have been expressed based on whether the incident between the Enrica Lexie and the Indian fishing boat, believed–wrongly or otherwise–to be a pirate vessel, can be classified as an ‘incident of navigation’. 13  The Indian view is that “in case of conflict between the two, it is the municipal law which would prevail”. See paragraph 75 of the Indian Supreme Court’s judgment of 18 January 2013.

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In this regard the Indian Supreme Court maintains that article 97 is inapplicable because in its view the definition of incident of navigation cannot cover ‘a criminal act in whatever circumstances’14 but the word incident literally means ‘an event or happening, especially one causing trouble’. Generally it occurs unexpected or unanticipated. Thus speaking, an ‘incident of navigation’ would generally mean an event that has a bearing on the navigation.15 It would seem that incident entails some unexpected or unforeseen event having an impact on navigation, for example, the breaking of submarine telegraph or telephone cables, in any event damage affecting the ship itself or the installation of other States and the like.16 As against that restrictive interpretation adopted by the Indian Supreme Court, there is a broader interpretation of article 97 according to which ‘any other incident of navigation’ would cover all cases of maritime casualty, an interpretation that finds support also in article 221.2 UNCLOS. Although in the context of measures to avoid pollution arising from maritime casualties, maritime casualty is defined as “a collision of vessels, stranding or other incident of navigation, or other occurrence on board a vessel or external to it resulting in material damage or imminent threat of material damage to a vessel or cargo”. That broad interpretation has been adopted also by the IMO, in particular in the Code for the Investigation of Maritime Casualties and Incidents, which provides that ‘marine casualty’ covers any event or sequence of events that has resulted in, amongst others, the death of or serious injury to a person.17 In consideration thereof, the expression ‘other incident of navigation’ should be 14  Indian Supreme Court’s judgment of 18 January 2013, paragraphs 94–95. 15  See paragraph 26 of the Court of Kerala’s judgment W.P.(C). No 4542 of 2012, stating as follows: “This is a case of firing against fishermen. Such action cannot be justified as an “incident of navigation”, so as to attract Article 97 read with Article 58 (2) of the UNCLOS. Therefore, this is a case which is not covered by Article 97 of UNCLOS”. 16  See M.H. Nordquist ed., United Nations Convention on the Law of the Sea 1982: A Commentary, vol. 3 (Dordrecht: Martinus Nijhoff Publishers, 1995), 168; B. Conforti, In tema di giurisdizione penale per fatti commessi in acque internazionali, www.sidi-isil.org. p. 6. 17  See the IMO Code for the Investigation of Maritime Casualties and Incidents (resolution A.849(20) as amended by resolution A.884(21), article 4 of which defines ‘marine casualty’ as: an event that has resulted in any of the following: 1 the death of, or serious injury to, a person that is caused by, or in connection with, the operations of a ship; or

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viewed as an open-ended one capable of encompassing anything that happens in the course of navigation, including therefore also collisions on the high seas and action taken in self defence against real or suspected piracy attacks. As further support for the above interpretation, on the basis of which the flag State enjoys exclusive jurisdiction, one can also cite article 94 UNCLOS, paragraph 7 of which includes among the obligations of the flag State that of causing an inquiry to be held into every marine casualty or incident of navigation on the high seas involving a ship flying its flag and causing loss of life or serious injury to nationals of another State or serious damage to ships or installations of another State or to the marine environment. The above is without prejudice to the final sentence of paragraph 7, which states that the “flag State and the other State shall cooperate in the conduct of any inquiry held by that other State into any such marine casualty or incident of navigation”. Regarding that provision, in reality appearing at the very end of article 94 dedicated entirely to the duties of the flag State, it should be stressed that it deals only with ‘cooperation’ with inquiries and certainly not recognition of the exercise of criminal jurisdiction by the other State involved and that the opening of any inquiries is a matter solely for the flag State. Article 94 does not make any provision for jurisdiction of the State whose citizens have been killed or seriously injured. The combined provisions of articles 94 and 221 UNCLOS must be appropriately taken into account in order to arrive at an interpretation—more widely shared in the international community—of the word incident in article 97 according to which in the case of a collision or any other incident of navigation on the high seas involving the penal responsibility of the master or of any other person in the service of the ship, the State with jurisdiction to institute penal or disciplinary proceedings against such a person is solely the flag State. That said, even if one were to insist on the inapplicability of article 97 to the case under consideration, it would be difficult to dispute the application of the general rule contained in article 92, which, as highlighted above, states: “Ships shall sail under the flag of one State only and, save in exceptional

2 the loss of a person from a ship that is caused by, or in connection with, the operations of a ship; or 3 the loss, presumed loss or abandonment of a ship; or 4 material damage to a ship; or 5 the stranding or disabling of a ship, or the involvement of a ship in a collision; or 6 material damage being caused by, or in connection with, the operation of a ship; or 7 damage to the environment brought about by the damage of a ship or ships being caused by, or in connection with, the operations of a ship or ships.

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cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas”. That provision, in the absence of specific treaties between Italy and India, may in reality be considered as sufficient by itself to preclude the application of the principle of passive nationality in contrast to what India claims.18 On the basis of that principle a State has the right to protect its own citizens abroad and “if the territorial State of the locus delicti, neglects or is unable to punish the person causing the injury, the State of which the victim is a national is entitled to do so if the persons responsible come into his power”.19 Ever apart from the fact that the principle of passive nation would not seem to be generally embraced by the international community, in any event it is surprising that the Court of Kerala would hold it to be applicable in the Enrica Lexie case. This is because Indian criminal legislation contains no provision in this regard20 and even more so because the Court itself acknowledged that criminal proceedings had been instituted in Italy against the two marines in relation to the acts they had been charged with.21 Therefore, it is recognised that Italy is ready to proceed and is also fully capable of adjudicating on the crime. Neither would the Indian Supreme Court’s reference to the 1927 judgment of the Permanent Court of International Justice (PJIC) in the Lotus case22 be 18  See paragraph 34 of the Court of Kerala’s judgment W.P.(C). No 4542. See also J. W. Davids, India v. Italy: The Indian Supreme Court Decides, in The (New) International Law, 31.1.2013, http://thenewinternationallaw.wordpress.com/2013/01/30/india-v-italy-the-indiansupreme-court-decides/. 19  The Court of Kerala defines the principle of passive nationality in the previously mentioned paragraph 34 of the judgment. 20  In fact, the article 4 of the Indian Penal Code states only: “The provisions of this code shall apply also to any offence committed . . . 2) by any person on any ship or aircraft registered in India, wherever it may be”. See also article 188 of the Indian Code of Criminal Procedure. 21  See paragraph 30 of the judgment of the Court of Kerala W.P.(C). No 4542. 22  See The Case of the S.S. Lotus, (French Republic v. Turkish Republic), judgment of 7 September 1927, PCIJ, Series A No 10, in which the following was stated in light of the general principles of international law in force at the time: “It must therefore be held that there is no principle of international law, within the meaning of Article 15 of the Convention of Lausanne of July 24th, 1923, which precludes the institution of the criminal proceedings under consideration. Consequently, Turkey, by instituting, in virtue of the discretion which international law leaves to every sovereign State, the criminal proceedings in question, has not, in the absence of such principles, acted in a manner contrary to the principles of international law within the meaning of the special agreement”.   It might be worth remembering that the case arose out of a collision on the high seas between the French ship Lotus and the Turkish ship Boz-Kourt, resulting in the death of

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sufficient to exclude the application of article 97 and hence also the jurisdiction of the flag State over the incident under consideration here. That dispute arose between France and Turkey following a collision that occurred on the high seas in 1926 and in resolving it the PCIJ applied international treaty provisions that have by now been superseded23 and rendered ineffective by subsequent caselaw and especially UNCLOS. According to a widely held view among legal scholars,24 article 97 was included in UNCLOS precisely to avoid a repetition in the future of cases similar to that of the Lotus, in which the proper jurisdiction had not been adequately ascertained.

The Applicability of Piracy Law to the Enrica Lexie Case

Again with the aim of identifying which State has jurisdiction to try the two Italian marines Latorre and Girone, another aspect of the dispute needs to be considered: whether in addition to the rules governing incidents that occur during the course of navigation on the high seas one must in addition take account of the rules governing the fight against piracy. In this regard, it is important to note that both judgments of the Court of Kerala and the Indian Supreme Court25 recognise that the crime that the two marines are charged with in India was committed in a piracy context. Therefore, in establishing which State has jurisdiction to try the offenders, it is also necessary to specifically refer to the UNCLOS provisions on combating piracy. eight Turkish citizens who were on the Turkish ship. The Turkish authorities had tried and convicted the French lieutenant Demons for manslaughter, as he was the officer on watch duty on the Lotus at the time of the incident. In literature for a recent analysis of the case, see A. Von bogdandy, M. Rau, “The Lotus”, in R. Wolfrum ed., Max-Plank Encyclopedia of Public International Law (Oxford: Oxford University Press, 2008), http://www.mpepil .com>onlineedition, updated as of June 2006. 23  The case was based on the application of the Convention relative à l’établissement et à la compétence judiciaire, signed in Lausanne on 24 July 1923, which in matters of jurisdiction referred to the general principles of international law governing the matter at the time. It should also be noted that the principle stated in the Lotus case was not incorporated into the International Convention for the Unification of Certain Rules relating to Penal Jurisdiction in Matters of Collision and Other Incidents of Navigation of 10 May 1952 (articles 1 and 3), the 1958 Geneva Convention on the High Seas (article 11) or UNCLOS. 24  A. Von Bogdandy, M. Rau, “Lotus, The”, cited in footnote 22, paragraph 20; N. Ronzitti, “The Enrica Lexie Incident. Law of the Sea and Immunity of State Officials Issues”, in 22 Italian Yearbook of International Law (Leiden: Brill Nijhoff, 2012), 15 ss. 25  See paragraph 100 of the judgment of the Indian Supreme Court of 18 January 2013.

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Piracy, as defined in article 101 UNCLOS, implies acts of violence, detention, or depredation, committed for ‘private ends’ by the crew or the passengers of a ship against another ship on the high seas. The definition in article 101 also lays down a series of criteria that must be fulfilled before an act can be considered as piracy, chief among which is that the acts of violence, including attempts, must be committed by private individuals against other ships. The second important criterion is that the acts of piracy must have occurred on the high seas or in any other area of the sea that is not subject to the jurisdiction of a particular State.26 Article 102 UNCLOS expressly provides that piracy does not include attacks committed by warships or ships on government service unless the crew has mutinied and taken control of the ship. Also excluded in any act with a political motive, which on the contrary is an element of a terrorist attack,27 because the aggression must be motivated by purely ‘private ends’.28 Therefore, the motive that sets piracy apart is the private ends associated with the crime as opposed to the public-political ends of terrorist attacks. That aspect has been examined in depth by some domestic courts, for example, the Belgian Supreme Court in the 1986 Castle John case in which some Greenpeace militants were convicted because their actions had been “purely 26  See, in this regard, Report of the International Law Commission to the General Assembly, 8th Session, in Yearbook ILC (1956): 282. 27  The crime of terrorism is sharply different from the crime of piracy and in this regard it might be worth considering what was stated by the Appeals Chamber of the Special Tribunal for Lebanon in relation to the essential features of a customary rule concerning the crime of terrorism: “As we shall see, a number of treaties, UN resolutions, and the legislative and judicial practice of States evince the formation of a general opinio juris in the international community, accompanied by a practice consistent with such opinio, to the effect that a customary rule of international law regarding the international crime of terrorism, at least in time of peace, has indeed emerged. This customary rule requires the following three key elements: (i) the perpetration of a criminal act (such as murder, kidnapping, hostage-taking, arson, and so on), or threatening such an act; (ii) the intent to spread fear among the population (which would generally entail the creation of public danger) or directly or indirectly coerce a national or international authority to take some action, or to refrain from taking it; (iii) when the act involves a transnational element”. See Prosecutor v. Ayyash et al., Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, STL-11-01 (STL AC, 16 Feb. 2011), paragraphs 83, 85. 28  For an analysis of these elements see S. Nandan, S. Rosenne, United Nations Convention on the Law of the Sea 1982, A Commentary, vol. 3 (Leiden: Martinus Nijhoff Publishers, 1995), 196 ss.; on the difference between piracy and terrorism, see, amongst others, H.E.J. Jesus, “Protection of Foreign Ships against Piracy and Terrorism at Sea: Legal Aspects”, Int. Journ. Mar. Coast. L. (2003): 363 ss.

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in support of a personal point of view concerning a particular problem, even if they reflected a political perspective”.29 In reality, it is difficult that the acts of piracy that frequently occur in the Gulf of Aden and in the Indian Ocean, carried out by small speedy vessels against commercial shipping, especially oil tankers, can be considered as terrorist attacks. In general the objective pursued in those cases is capturing the ship and holding the crew hostage with a view to then subsequently demanding a huge ransom for their release. The above actions are normally perpetrated for ‘private ends’, even if at times in order to justify them the Somali pirates claim ‘noble’ motives like acting to defend the biological resources of Somali waters from overexploitation by fishing boats of other States or to defend the environment against the pollution caused by Western multinational companies. In such a delicate situation, the interpretation given by the vessel protection detachment on board the Enrica Lexie in pirate-infested waters to the actions of the Indian vessel (which continued to head straight towards the Italian oil tanker without heeding the warnings given and evasive measures taken) would appear to have been entirely justifiable. The incident can thus be placed within the context of piracy, as moreover recognised by the Indian Supreme Court itself, because the behaviour of the Indian vessel fell within the scope of article 101 UNCLOS. In light of the above it would thus seem possible to apply article 100 UNCLOS to the present case, an article that lays down a duty for States to cooperate (more specifically ‘cooperate to the fullest extent’) in the repression of piracy on the high seas. It follows that in the case of the Enrica Lexie incident, leaving aside what was said before in relation to article 97, on the basis of article 100 it would have been best if Italy and India had closely cooperated with a view to establishing which of the two States had jurisdiction. However, it is a fact that India saw fit not to cooperate with Italy and right from the very beginning asserted that it had jurisdiction. Indeed, through a stratagem, it forced the Italian ship to leave EEZ waters where freedom of navigation exists and to enter Indian territorial waters.30 29  See Castle John and Netherlandsee Stichting Sirius v. NV Nabeco and NV Parafin, in ILR (1994): 537 et seq. 30  In paragraph 7 of the judgment of the Court of Kerala, W.P.(C) No. 4542 of 2012, it is acknowledged that the Italian ship was forced to enter Indian territorial waters. A similar approach was taken on 12 October 2013 by the coastguard of the Indian state of Tamil Nadu against a ship owned by an American company flying the flag of Sierra Leone, what provided escort services to merchant shipping sailing in the Indian Ocean. The coastguard induced the patroller to cross the 12 nautical mile limit demarcating Indian

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Thus as regards the first question initially posed as to which State has jurisdiction to adjudicate on the Enrica Lexie incident, it would seem that Italy’s demand that it be the State to try the two marines is well founded if one considers the waters that the incident occurred in, the rules on piracy, the combined provisions of the UNCLOS articles dealing with the jurisdiction enjoyed by flag States over ships on the high seas (articles 58, 94, 97) and the duty for States to cooperate in relation to crimes of piracy (article 101). However, Italy’s claim continues to be disputed by India, which on the basis of its own domestic law believes that it has exclusive jurisdiction in the matter,31 basing its arguments for the most part on the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA). In fact, initially the Court of Kerala and subsequently, after the judgment of the Supreme Court, the Indian authorities whose task it is to draw up the charges against the two marines have made continuous and specific reference to the said 1988 SUA Convention and the SUA Act implementing it in India. That Convention, concluded after the Achille Lauro incident in order to combat terrorism, applies to ships navigating beyond the outer limit of the territorial sea of a single State, or the lateral limits of its territorial sea with adjacent States32 and covers acts of violence committed ‘unlawfully and intentionally’ against persons on board a ship other than a warship or comparable vessel. The acts in question must have endangered safe navigation or have injured or killed a person.33 In such cases any States Parties to the Convention may establish their jurisdiction if the crime is committed against one of their ships or against persons on board one of their ships. There are no express provisions in the Convention regarding military personnel on board commercial ships in the exercise of their official duties although in this regard it is worth referring to article 3 of the 2005 Protocol to the Convention, which tellingly provides that the Convention does not apply to “the activities undertaken by military forces of a State in the exercise of their official duties, inasmuch as they are governed by other rules of international law”. Not considering the foregoing and in an effort to establish the jurisdiction of the domestic courts to try the two marines, the Indian authorities have territorial waters and then proceeded to arrest the ten crew members and twenty-five contractors, accusing them of having illegally entered Indian territorial waters with arms and munitions aboard. 31  See paragraphs 99–101 of the Indian Supreme Court’s judgment of 18 January 2013. 32  See article 4 SUA Convention. 33  See article 3 SUA Convention.

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c­ ontinued to cite the SUA Convention despite the fact that in its judgment of 18 February 2013 the Indian Supreme Court had indicated that the Enrica Lexie case had to be resolved by applying solely the provisions of UNCLOS and the Indian Penal Code. In light of the conflicting claims as to jurisdiction, there is no doubt that a dispute has arisen in that regard between Italy and India. To settle that international dispute it would be best to leave aside diplomatic solutions and establish which compulsory international dispute resolution mechanism, i.e. arbitration or an international court or tribunal, should be resorted to.

Checking the Applicability of the Theory of Sovereign Functional Immunity

In order to answer the second question initially posed as to whether or not the two Italian marines Latorre and Girone could have sovereign functional immunity on the basis that they are organs of the State, one must determine whether the claims that the Italian courts have jurisdiction are well founded. In that regard it should be noted that in the judgment of the Court of Kerala it is stated that the two Italian marines were on board the Enrica Lexie carrying out iure privatorum activities, hence not ones falling with the scope of State functions since, according to the Indian judges, the military team was under the authority of the captain of the ship and the shipowner paid a fee to the Ministry of Defence in return for the service on board of the armed vessel protection detachment.34 Unlike the Court of Kerala, the Indian Supreme Court in its judgment of 18 January 2013 did not rule on the point and referred the issue to the special court to be set up.35 However, even though the Indian Supreme Court did not examine the problem of functional immunity, the view expressed by the Court of Kerala that classified the duties carried out on board the ship as private ones must be examined in order to rebut the underlying arguments, also in light of the fact that they could well be raised again before the special court. First and foremost, it should be clarified that the activities carried out by the two marines on board the ship were authorised and governed by Italian Law Decree No. 107 of 12 July 2011 on international missions, converted by Parliament with amendments into Italian Law No. 130 of 2 August 2011.36 This 34  See paragraph 10 of the judgment of the Court of Kerala W.P.(C) No. 4542 of 2012. 35  See paragraph 101 of the judgment of the Court of Kerala W.P.(C) No. 4542 of 2012. 36  See Official Gazette of the Italian Republic No. 181 of 5 August 2011, p. 5 et seq.

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law provides that the Ministry of Defence may sign agreements37 with private Italian shipowners (members of the Confitarma, Federpesca and other shipowners’ associations) for the protection of ships flying the Italian flag that sail through international waters most at risk from piracy.38 In enacting that law Italy sought to implement what had been repeatedly requested by the UN Security Council in numerous resolutions, the IMO and the European Council within the framework of a 2008 Joint Action to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast.39 Certainly, the use of military personnel aboard merchant ships sailing through areas of the sea subject to frequent pirate attacks must be clearly distinguished from the piracy prevention and repression duties assigned to warships passing through the same areas and carried out, for example, by the European Union through naval vessels belonging to the navies of the Member States. In fact, only warships and duly authorized ships clearly marked and identifiable as being on government service40 can be assigned the exclusive task of hunting pirates while the task of armed teams on board a merchant ship is to protect the ship against acts of piracy. Therefore, in conformity with this division of tasks, Italian Law No. 130/2011 provided that vessel protection detachments serving on board merchant ships to assure security of navigation must act in full compliance with international law and receive orders not from the captain of the ship but their own military commanders. In fact it was provided that the head of each vessel protection detachment has ‘exclusive responsibility for military action against piracy’.41 In this framework military personnel on board merchant ships are to be considered as troops abroad and their actions, according to international law, are imputable to their State such that no coercion may be exercised against the said personnel. Therefore, any unlawful conduct that they commit gives rise to responsibility for their State,42 which may be called to answer internationally 37  See article 1 of Law Decree No. 107 of 12 July 2011. 38  Further to article 5 of Law Decree No. 107 of 12 July 2011 the Ministry of Defence subsequently issued regulations governing the use of security guards on merchant ships flying the Italian flag that pass through international waters at risk of piracy, published in 75 Official Gazette of the Italian Republic (March 2013). 39  See European Council Joint Action 2008/851/CFSP of 10 November 2008 on a European Union military operation, OJEU L. 301 of 12 November 2008. 40  See articles 106 and 110 UNCLOS. 41  See article 2 of Law Decree No. 107 of 12 July 2011. 42  According to G. Morelli, Diritto processuale civile internazionale (Milano: Giuffrè, 1962), 201, the State would be “obliged internationally to consider the activities carried out by

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by the damaged State, except in cases where it is proved that the military personnel concerned acted outside the scope of their duties, in particular, breaching rules of engagement or orders received from their military superiors.43 It necessarily follows that in the case of a dispute arising, establishment of a State’s responsibility for the actions of its officials is not a matter for the domestic courts of another State but, in line with the fundamental legal principle of par in parem non habet iurisdictionem, solely for an impartial international court. Moreover, on the subject of the functional immunity of State organs, one must bear in mind international caselaw of particular interest. In particular, it is worth dwelling on what was stated by the Appeals Chamber of the International Tribunal for the Former Yugoslavia (ITFY) in the Prosecutor v. Blaškič case44 as follows: [State] officials are mere instruments of a State and their official action can only be attributed to the State. They cannot be the subject of ­sanctions or penalties for conduct that is not private but undertaken on behalf of the State. In other words, State officials cannot suffer the consequences of wrongful acts which are not attributable to them personally but to the State of whose behalf they act: they enjoy so-called ‘functional immunity’. This is a well-established rule of customary international law going back to the eighteenth and nineteenth centuries, restated many times since. More recently, France adopted a position based on that rule in the Rainbow Warrior case.45 The rule was also clearly set out by the Supreme Court of Israel in the Eichmann case.46 the foreign organ in that capacity as activities of the State to which the organ belongs and not as activities of the individual who materially committed the acts” (translated from Italian). 43  See I. Brownlie, Principles of Public International Law, 6th ed. (Oxford: Oxford University Press, 2003), 423. 44  See ICTY, Prosecutor v. Blaškič, (Objection to the Issue of Subpoena DucesTecum) IT-9514-AR108, 110, 29.10.1997, paragraph 38. 45  See Rainbow Warrior Case (New-Zealand v. France), France—New-Zealand Arbitration Tribunal, 30 April 1990. France claimed that the arrest by the New Zealand police of the two French agents who had sunk the Rainbow Warrior was unwarranted “taking into account in particular the fact that they acted under military orders and that France [was] ready to give an apology and to pay compensation to New Zealand for the damage suffered (see the Ruling of 6 July 1986 of the United Nations Secretary-General, in United Nations Reports of International Arbitral Awards, vol. XIX, p. 213)”. 46  The Supreme Court of Israel has inter alia lent its support that “The theory of ‘Act of State’ means that the act performed by a person as an organ of the State—whether he

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Indian caselaw is also consistent with that line of interpretation, as evidenced by the Indian Supreme Court’s citation in its judgment of 18 January 2013 of a domestic precedent, according to which: The doctrine of sovereign immunity is based on international law. It is one of the rules of international law that a sovereign state should not be impleaded in the courts of another sovereign state against its will. Like all rules of international law, this rule is said to arise out of the consensus of the civilized nations of the world. All nations agree upon it. So it is part of the law of nations.47 This did not however prevent the Indian Supreme Court from insisting that India had jurisdiction over the two Italian marines and it did not even consider the objection as to a lack of jurisdiction submitted in this regard by Italy.48 The Court explained the reasons for its attitude on the basis that there is no unanimous opinion among legal scholars (49) and no well established caselaw on the functional immunity of military personnel.

was head of the State or a responsible official acting on the Government’s orders—must be regarded as an act of the State alone. It follows that only the latter bears responsibility therefor, and it also follows that another State has no right to punish the person who committed the act, save with the consent of the State whose mission he performed. Were it not so, the first State would be interfering in the internal affairs of the second, which is contrary to the conception of the equality of States based on their sovereignty”; see International Law Reports, vol. 36: 308–09. However, after that passage the Appeals Chamber expressed its reservations concerning the Act of State doctrine for the likely purposes of not applying it to war crimes and crimes against humanity. 47  See paragraph 66 of the Indian Supreme Court judgment citing some observations of Lord Denning M.R. in Trendtex Trading Corporation vs. Bank of Nigeria [(1997) 1 Q.B. 529]. 48  J.W. Davids, op. cit., stating that the point in question is “the most unfortunate part of the Supreme Court’s judgement”. 49  Among those that support functional immunity, see F. Munari, “Giurisdizione degli Stati in caso di delitti compiuti al di fuori del mare territoriale: spunti di riflessione tratti dal caso Enrica Lexie deciso dalla Corte Suprema indiana”, Il Diritto Marittimo (2013): 273– 274; N. Ronzitti, “L’immunità funzionale degli organi stranieri dalla giurisdizione penale: il caso Calipari”, Riv. Dir. Internaz (2008): 1033–1045 e dello stesso autore Gli sviluppi delle missioni antipirateria: il caso della Enrica Lexie, addendum a F. Caffio, N. Ronzitti, “La pirateria: che fare per sconfiggerla?”, IAI, nº 44 (April 2012); D. Akande, S. Shah, “Immunities of State Officials, International Crimes, and Foreign Domestic Courts”, European Journal of Int. Law (2011): 825–827; P. Gaeta, “Extraordinary renditions e giurisdizione italiana nei confronti degli agenti statunitensi coinvolti nel c.d. caso Abu Omar”, Riv. Dir. Internaz (2013): 530 ss.

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In effect, confirmation of the contrasting views that exist on functional immunity can be found in the caselaw of the Italian Supreme Court, which, initially in the Calipari-Lozano case with reference to the immunity of an American soldier facing charges, stated as follows: Every independent and sovereign State is free to establish its own internal organisation and appoint the persons authorised to act on its behalf such that once an individual is deemed to be an official and his powers determined, his conduct constitutes the exercise of a public power and is attributable to the State thereby, without undue interference from the court of another State, giving rise solely to responsibility for the possible international wrongdoing to be enforced at the level of relations between the injured State and the responsible State, in furtherance of the organisational structure of the international community and respecting the reciprocal sovereignty between States (par in parem non habet imperium/iurisdictionem).50 Subsequently, however, in the Abu Omar case the Italian Supreme Court denied the existence of a rule of customary international law that grants f­unctional immunity to the officials of a State on the grounds that in the case before there had been a violation of the rules that protect fundamental human rights, like those of the Egyptian imam Abu Omar not to be kidnapped and to be transferred to a country, Egypt to be precise, where questioning under torture is permitted and which he was effectively subjected to. The Italian Supreme Court thus stated as follows: Well, in that situation to hold that a rule of customary law exists would not appear to be correct because there is no well established caselaw, no repeated and consistent official declarations by States and no unequivocal support among legal scholars. Precisely because of the uncertainty that surrounds this delicate aspect of international relations, States normally regulate the exercise of their jurisdiction over military personnel abroad through a SOFA (Status of Forces Agreement). One can thus conclude that the irregular way in which the matter is treated is such as to exclude recognition of a general rule. In fact, removing officials posted abroad from foreign jurisdiction is provided for in specific treaties, while

50  See Italian Supreme Court (Criminal Section I) judgment no. 31171 of 24 July 2008, Lozano, (translated from Italian).

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in the absence of such treaties functional immunity is normally not recognised by domestic courts.51 However, despite the lack of a uniform view among legal scholars and well established consistent caselaw, it would seem that over time a customary rule has come to be formed in current international law in relation to the immunity for acts committed in the exercise of State duties. A rule that has its limitations as regards certain types of wrongdoing, whose punishability by domestic courts is possible under specific treaty provisions, and the types of activities carried out by State organs within the context of unauthorised missions. Finally, as evidenced precisely by the Italian Supreme Court in its Abu-Omar judgment, there would seem to be a recent further limit to functional immunity if what is involved is a gross violation of human rights. In conclusion, the overall picture of the law in this area highlights a progressive erosion of the rule on functional immunity of state organs, to a large extent stemming from the limits to the operation of the rule itself that are often invoked. Therefore, it is arguable that the basis of Italy’s exclusive jurisdiction in the Enrica Lexie case is best found in the international law of the sea, where it stands on more solid foundations.

Some Reflections on India’s Violation of the International Rules on Diplomatic Immunity

At a certain point in the affair of the two marines the situation got more complicated from another standpoint because the question of diplomatic immunity entered the fray. In order to ensure that Latorre and Girone would return to India at the end of a period of leave granted to the marines by the Indian Supreme Court so as to allow them to vote in elections in Italy, the Italian ambassador to India was asked to sign an affidavit. Subsequently, however, during that period of leave, on 11 March 2013 the Italian government announced that it would not be returning the two marines to India as a result of the Indian Supreme Court’s

51  Translated from Italian. See Italian Supreme Court (Criminal Section V) judgment no. 46340 of 29 September 2012, p. 110 and Court of Appeal of Milan judgment of 1 February 2013, p. 34. In relation to the Abu Omar case there is also a judgment (no. 40/2012 of 22 February 2012) of the Italian Constitutional Court regarding the need to protect official secrets.

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decision in its judgment of 18 January 2012 to pass the matter to a special court to be set up to rule on the conflict of jurisdiction and on the merits of the case. The Italian government justified its stance by claiming that returning the marines would breach some provisions of the Italian Constitution. Firstly, article 26 prohibiting the extradition of an Italian citizen except in cases specifically provided for in international treaties: it was argued that sending the two marines back to India would be tantamount to a de facto extradition. It was also noted that on the basis of Italian constitutional caselaw it was forbidden to extradite Italian citizens to countries in which the crime that they were charged with could be punished by death. In India capital punishment exists for the crime of homicide. Secondly, another well founded objection was violation of the constitutional principle that no case may be removed from a predetermined court but must be heard as provided for by law.52 The announcement that the two marines would not be returning to India predictably caused uproar there. The Indian Supreme Court reacted by issuing an order restricting the freedom of movement of the Italian ambassador. As the latter had not honoured the affidavit, the Court took the view that he had forfeited his diplomatic privileges and immunity. To enforce that order the Indian Ministry of the Interior alerted the border police to prevent the ambassador from leaving the country.53 Regarding this issue one must above all consider the official nature of the ambassador’s action when signing the affidavit: in that instance he was acting as the official representative of the Italian State and he was certainly not binding himself personally but Italy. Bearing in mind the above the Italian Supreme Court order preventing the ambassador from leaving India appeared to have no sound legal basis because the Indian reaction to whatever infringement might have been committed should have been directed not at the ambassador but at Italy, which in any case as a subject of international law enjoys immunity from the internal jurisdiction of other States, in accordance with customary international law and the provisions of the UN Convention on Jurisdictional Immunities of States and Their Property of 2 December 2004.54

52  See article 25 of the Italian Constitution. 53  “Airports alerted to prevent Italian envoy from leaving country”, The Times of India, March 15th 2013. 54  On a formal level the New York Convention on Jurisdictional Immunities of States and Their Property will bind States only after its entry into force. However, to the extent that

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From this standpoint it is rather surprising that the Indian Supreme Court asserted that the Italian ambassador had to answer personally for acts committed in the exercise of his functions. It is well known that there is a clear distinction in international law between the acts committed by a diplomatic agent in the exercise of his functions and those committed as part of his private life. The sending State is responsible for the former whereas for the latter, in accordance with article 31 of the Vienna Convention on Diplomatic Relations, the diplomatic agent enjoys immunity from the criminal jurisdiction of the receiving State, because for those acts he is subject to the exclusive jurisdiction of the sending State. As a result, a failure to honour the affidavit could in no way have caused the Italian ambassador to forfeit his immunity. The above issue has already been resolved because following the return of the two marines to India the Supreme Court is no longer pursuing the Italian ambassador.

The Compulsory Dispute Resolution Means that Can Be Used to Settle the Dispute between Italy and India Concerning the Law of the Sea. Compulsory Arbitration under Annex VII of UNCLOS

On the basis of the analysis conducted thus far the question of the jurisdiction to try the two marines Latorre and Girone must be resolved solely within the context of UNCLOS. As it is a case of a conflict of jurisdiction between two domestic legal systems regarding events that occurred in international waters, the rules laid down in UNCLOS must necessarily apply, rules that are binding on both of the States since they ratified the Convention in 1995. It should be borne in mind that neither of the parties have ever doubted that it is an interState dispute, least of all India in accordance with what is expressly acknowledged in the above mentioned Indian Supreme Court judgment of 18 January 2013, at paragraph 86. It follows from the foregoing that when a disputes arises between States Parties to UNCLOS concerning the interpretation or application of the provisions therein contained the solution to the dispute is to be found in Part XV of UNCLOS specifically devoted to such matters. In this regard the first obligation that States must fulfil is that contained in article 283, which requires the parties to the dispute to proceed expeditiously to an ‘exchange of views’ regarding its settlement by negotiation or other peaceful means. In the case the Convention reproduces the general law on the matter, it is a sure point of reference for domestic courts.

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under c­ onsideration here, Italy fully complied with its obligation in this regard through negotiations that went on for a long time, as per the ample documentation on the record. Moreover, the interpretation of the obligation to exchange views pursuant to article 283 provided by the International Tribunal for the Law of the Sea (ITLOS) is broad, such that in the Louisa case it was stated as follows: “a State Party is not obliged to pursue procedures under Part XV, section 1, of the Convention when it concludes that the possibilities of settlement have been exhausted” (Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan), Provisional Measures, Order of 27 August 1999, ITLOS Reports 1999, p. 280 at p. 295, paragraph 60), and that “a State Party is not obliged to continue with of an exchange views when it concludes that the possibilities of reaching agreement have been exhausted” (MOX Plant (Ireland v. United Kingdom), Provisional Measures, Order of 3 December 2001, ITLOS Reports 2001, p. 95, at p. 107, paragraph 60). Although its obligation under article 283 could be said to have been fully complied with in light of ITLOS caselaw, nonetheless on 11 March 2013 Italy sent India “Note Verbale 89/635”, on 7 February 2014 “Note Verbale 56/259” and on 15 February 2014 “Note Verbale 67/319”, requesting India for an exchange of views on the Enrica Lexie case. The negative replies that the Indian government gave to the above Notes means that for all and intents and purposes one can consider the negotiations phase to be at an end. It makes Section 2 of Part XV of UNCLOS applicable, which sets out the relevant compulsory procedures entailing binding decisions. In fact, if a solution to a dispute has not been reached through negotiation or the other voluntary dispute resolution tools set out on Section 1 of Part XV, then article 287.1 provides that States Parties to the Convention may choose from among a number of compulsory dispute resolution mechanisms: ITLOS,55 55  The literature on ITLOS is vast. Among many see H. Caminos, “The Creation of the International Tribunal for the Law of the Sea as a Specialized Court under the United Nations Convention for the Law of the Sea”, Promoting Justice, Human Rights and Conflict Resolution through International Law (Leiden, Boston: Brill, 2007), 823–836; “The International Tribunal for the Law of the sea: an Overview of its Jurisdictional Procedure”, New International Tribunals and New International Proceedings, ed. A. Del Vecchio (Milano: Giuffrè, 2006), 17 ss.; R. Wolfrum, “The Settlement of Disputes before the International Tribunal for the Law of the Sea. A Progressive Development of International law or Relying on Traditional Mechanisms?”, Japanese Yearbook of Int. Law (2008): 140–163.

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the International Court of Justice (ICJ), arbitration under Annex VII and special arbitration under Annex VIII.56 Checking the declarations lodged in that regard by the parties to the dispute, it can be noted that on 26 February 199757 Italy opted for the ICJ and ITLOS in no particular order, while for its part on 19 June 1995 India reserved the option of choosing one or more of the procedures listed in article 287.1 at a later date. To date India has not lodged any declaration. Therefore, if the parties to a dispute have not accepted the same procedure for the settlement thereof, article 287.5 provides that the dispute may be submitted only to arbitration regulated by Annex VII of UNCLOS, unless the parties agree to resolve the specific matter through a different procedure. In fact, there is nothing in theory that would prevent the two States from concluding an agreement to resort to the ICJ or Permanent Court of Arbitration (PCA). In this latter regard it is worth noting that article 51 of the Indian Constitution provides that the State shall endeavour to ‘encourage settlement of international disputes by arbitration’. However, in the course of the long negotiation no special agreement was ever proposed to jointly choose a compulsory dispute resolution means. It is thus clear that recourse to compulsory arbitration remains the only option, bearing in mind that also militating in favour of that solution is article 287.3 UNCLOS, according to which a State Party that has not made any declaration (like India) shall be deemed to have accepted arbitration ordered in with Annex VII. 56  See H. Caminos, “Algunas consideraciones acerca de la solución de controversias en la Convención de las Naciones Unidas sobre el Derecho del Mar y del Tribunal Internacional del Derecho del Mar”, 2 Cuadernos de derecho pesquero (2003): 23–34. 57  The following is the text of the Italian declaration: “In implementation of article 287 of the United Nations Convention on the Law of the Sea, the Government of Italy has the honour to declare that, for the settlement of disputes concerning the application or interpretation of the Convention and of the Agreement adopted on 28 July 1994 relating to the Implementation of Part XI, it chooses the International Tribunal for the Law of the Sea and the International Court of Justice, without specifying that one has precedence over the other.  In making this declaration under article 287 of the Convention on the Law of the Sea, the Government of Italy is reaffirming its confidence in the existing international judicial organs. In accordance with article 287, paragraph 4, Italy considers that it has chosen ‘the same procedure’ as any other State Party that has chosen the International Tribunal for the Law of the Sea or the International Court of Justice”. See http://www.un.org/depts/ los/convention_agreements/convention_declarations.htm#Italy Declaration made after ratification.

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Accordingly, it would seem that the current dispute can be unilaterally submitted by Italy to the above mentioned arbitration procedure even without India’s consent, since that procedure is compulsory, as expressly stated by article 286, which contains an arbitration clause to the effect that if a solution has not been reached relying on the voluntary tools set out in Section 1 of Part XV of UNCLOS, the dispute itself is to be submitted at the request of any party to the court or tribunal having jurisdiction, selected from among those listed in the aforementioned article 287. Moreover, the limitations and optional exceptions indicated in articles 297 and 298 UNCLOS cannot in any way hinder the application of articles 286 and 287, since in its declaration of 13 January 1995 Italy excluded the jurisdiction of courts and tribunals solely for disputes concerning the delimitation of its sea boundaries. As regards India, since it did not lodge any declaration, it cannot plead any limit to the application to the above rules on the compulsory resolution of disputes in connection with the law of the sea. In light of the above it appears that the legal mechanism that can be used to settle the conflict of jurisdiction that has arisen between Italy and India is arbitration under Annex VII,58 the procedure for establishing which is actually very simple. In fact, the claimant (Italy in the present case) would have to serve the respondent (India in the present case) with written notification, accompanied by a statement of the claim and the grounds on which it is based and the name of the arbitrator that it wishes to appoint. The respondent would have a short period of time within which to appoint an arbitrator, who may be its national. To complete the arbitral tribunal the parties would have to jointly choose the remaining three arbitrators, who would be nationals of third States. If the parties were unable to reach agreement on the appointment of the arbitrators or the president of the arbitral tribunal, upon the request of the claimant the President of ITLOS would appoint the arbitrators in question. The arbitral tribunal so constituted would then determine its own procedure, unless the parties were to agree otherwise. Furthermore, article 9 of Annex VII provides that if a State decides not to appear before an arbitral tribunal already constituted, the other party may request the tribunal to continue the proceedings in default of appearance and to make its award.

58  See S. Rosenne, “Arbitrations under Annex VII of the United Nations Convention on the Law of the Sea”, ed. T. M. Ndiaye & E. R. Wolfrum, Law of the sea, environmental law and settlement of disputes: Liber amicorum judge Thomas A. Mensah (Leiden: Martinus Nijhoff Publishers, 2007), 989–1006.

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It is thus clear that UNCLOS incorporates a rapid and efficient mechanism to resolve disputes concerning the interpretation and application of the rules therein contained, for which the consent of both parties to the dispute is not required, since that consent is already deemed to have been given at the time of ratification of the Convention and its Annexes.

Examination of the Possibility of Recourse to the International Court of Justice to Resolve the Dispute on the Applicability of Sovereign Functional Immunity to the Two Italian Marines. Final Considerations

Recourse to compulsory arbitration under UNCLOS is not an option for the dispute concerning the functional immunity of the two Italian marines Latorre and Girone on the basis that they are organs of the State. The scope of compulsory arbitration jurisdiction is limited ratione materiae to adjudicating on the interpretation and application of the rules of the law of the sea incorporated into UNCLOS, even if in ITLOS caselaw it is possible to detect a willingness of sorts to address issues not strictly connected to the law of the sea. In effect, in the Guyana v. Suriname case involving compulsory arbitration under Annex VII, for the purposes of resolving a dispute concerning the delimitation of maritime boundaries, the arbitral tribunal took into account the provisions in the UN Charter on the use of force.59 However, it still was an exception limited to a particular context and it would appear difficult to cite it as a precedent that Italy could use to further a claim. In reality, in order to resolve the dispute as to whether the two Italian marines have functional immunity, one would have to turn to a ‘classic’ ­international court like the ICJ, but a unilateral application thereto by Italy alone would appear to be inadmissible. Whereas India had already accepted the jurisdiction of the ICJ as compulsory ipso facto under article 36.2 of the Statute of the Court in its declaration of 18 September 1974, Italy had not likewise done so at the time of the events. In the absence of acceptance of the ICJ’s jurisdiction as compulsory, the sole route for applying to the Court would be through agreement, i.e. an ad hoc treaty concluded with India. A treaty, which in view of the current difficult state of relations between the two States, would surely entail long and complicated negotiations. 59  CPA, Arbitral Tribunal Constituted Pursuant to Article 287, and in accordance with Annex VII, of the United Nations Convention on the Law of the Sea, Guyana v. Suriname, 17 September 2007, paragraph 425 ss.

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In conclusion, the two distinct Enrica Lexie disputes that have arisen between Italy and India, one concerning a violation of the UNCLOS rules on piracy and criminal jurisdiction in the case of an incident of navigation on the high seas, and the other concerning violation of the international rules on the sovereign functional immunity of military personnel abroad, have essentially been marked by a failure to observe the fundamental principles and rules of international law that underpin international relations between States and that serve the international community for the purposes of maintaining peace and security. But above all the analysis of the entire Enrica Lexie affair has revealed how fundamentally important the UNCLOS rules on combating piracy, flag State duties and the settlement of disputes by peaceful means have become in the international community. It is also clear that the correct interpretation and application of those rules would have prevented the dispute from arising between the two States in the beginning. Thus, almost twenty years after it came into force UNCLOS has shown that it is an extremely effective instrument, potentially capable of settling all the difficulties associated with governance of the seas. That did not come about by chance but was made possible as a result of the valid choices made by the negotiators of the Convention, including Judge Caminos, who through the huge amount of drafting work that preceded the conclusion of the Convention itself were able to conceive and adopt the solutions best suited to tackling the main issues of the law of the sea.

Chapter 24

Piracy vs. International Armed Conflict Yoram Dinstein Introduction There is a recent tendency—not only among laymen—to dissect piracy in terms of an international armed conflict. This tendency is perhaps excusable, bearing in mind that people read or hear about warships and military aircraft chasing and using deadly force against pirates. After all, the suppression of piracy must rely on operations by military naval and air units—warships and military aircraft—just like the prosecution of an international armed conflict. Yet, anti-piratical operations have to be pursued in accordance with the norms of international law governing LOS (the Law of the Sea). In contrast, armed conflicts must be prosecuted in conformity with the jus in bello, commonly known as either LOAC (the Law of Armed Conflict) or IHL (International Humanitarian Law). What this means is that warships and military aircraft engaged in an armed conflict are bound by one legal regime, whereas those operating in the suppression of piracy are subject to an altogether divergent legal regime. The international law of piracy is embedded in both customary international law and in Articles 100–107 of the 1982 LOS Convention (signed in Montego Bay).1 The latter provisions repeat verbatim counterpart clauses (Articles 14–21) of the 1958 Geneva Convention on the High Seas. The declaratory character of the 1958 text is openly avowed in the Preamble of the Geneva Convention, which sets forth that the Conference framing it “adopted the following provisions as generally declaratory of established principles of international law”.2 The text of the relevant clauses of the Geneva Convention is largely based on a draft finalized by the International Law Commission in 1956.3

1  United Nations, United Nations Convention on the Law of the Sea (New York: UN, 1982), 57. 2  United Nations, “Geneva Convention on the High Seas”, United Nations Treaty Series, vol. 82 (New York: United Nations, 1958), 90–92. 3  United Nations, Yearbook of the International Law Commission 1956. Documents of the eighth session including the report of the Commission to the General Assembly, vol. II. (New York: United Nations, 1957), 253, 254 et seq.

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The intact retention in 1982 of the 1958 provisions on piracy affirms that States accept them as an accurate reflection of international law.4 In this paper, I shall dwell on international (that is to say, inter-State) armed conflicts, although LOAC extends also to non-international (i.e. intraState) armed conflicts.5 A non-international armed conflict takes place within the territory of a single State between the armed forces of the central Government and insurgent organized armed groups or (absent a central Government) between various rival organized armed groups.6 I shall allude to some distinctions between insurgents and pirates in the proper contexts. Still, the main point is that “pirates, howevr well organised and however international their activities, cannot, by attacking state forces, create a state of international armed conflict so as to gain for themselves combatant status”.7 I propose to juxtapose the law relating to piracy and to LOAC, in order to bring into relief the pronounced differences between them.

The Distinction between Piracy and Armed Conflict

The definition of piracy appears in Article 101 of the 1982 LOS Convention: Piracy consists of any of the following acts: (a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed: (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;

4  See I. Shearer, “Piracy”, The Max Planck Encyclopedia of Public International Law, vol. 8, ed. R. Wolfrum (Oxford: Oxford University Press, 2012), 320, 321. 5  See, in particular, “Protocol Additional to the Geneva Conventions of 12 August 1949”, and “Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 1977”, The Laws of Armed Conflicts: A Collection of Conventions, Resolutions and Other Documents, ed. D. Schindler & J. Toman (Leiden: Martinus Nijhoff Publishers, 2004), 775, 777. 6  On the definition of a non-international armed conflict, see Y. Dinstein, “Concluding Remarks on Non-International Armed Conflicts”, 42 Israel Yearbook on Human Rights (2012): 153–154. 7  See C.H.B. Garraway, “Interoperability and the Atlantic Divide: A Bridge over Troubled Waters”, Issues in International Law and Military Operations. International Law Studies, vol. 80, ed. R.B. Jaques (Newport: US Naval War College, 2006), 337, 340.

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(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State; (b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; (c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).8 As I explained in detail elsewhere,9 this definition rests on five legs: (i) The Acts: Piracy consists of any illegal acts of violence, detention or depredation. (ii) The Actors: Pirates must be sailing private ships or flying private aircraft. Hence, piracy cannot be committed by warships (or other State vessels) or by State aircraft. (iii) The Purpose: An act is not considered piracy unless it is committed ‘for private ends’. (iv) The Venue: Piracy can take place only on the high seas (or in another place outside the jurisdiction of any State). In other words, piracy may not occur within the territory of any State. (v) The Target: An act of piracy must be directed ‘against another ship or aircraft’. It follows that a minimum of two vessels or aircraft (or a vessel and an aircraft) must be involved in piracy. These five constituent elements should now be compared with the fundamentals of LOAC applicable in international armed conflicts: The Acts An armed conflict, like piracy, consists essentially of acts of violence, as well as detention, albeit not of depredation. However, the most salient distinction between an armed conflict and piracy is that, while the violence perpetrated by pirates is by definition illegal, the opposite is true of ordinary acts of warfare committed by combatants in an international armed conflict. It is imperative to draw a line here between the jus ad bellum and the jus in bello. Pursuant to the contemporary jus ad bellum—as expressed in Article 2(4)

8  LOS Convention, supra note 2, at 57. 9  See Y. Dinstein, “Piracy Jure Gentium”, Coexistence, Cooperation and Solidarity: Liber Amicorum R. Wolfrum, vol. 2, ed. H.P. Hestermeyer et al.(Leiden: Martinus Nijhoff, 2012), 1125, 1128–1136.

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of the Charter of the United Nations of 194510—the use of force between States is prohibited. Moreover, since the Judgment delivered by the International Military Tribunal at Nuremberg, in 1946, it is clear that war of aggression constitutes an international crime.11 Article 5(1) of the 1998 Rome Statute of the International Criminal Court lists the ‘crime of aggression’—together with genocide, crimes against humanity and war crimes—among ‘the most serious crimes of concern to the international community as a whole’, with respect to which subject-matter jurisdiction is conferred on the Court.12 Nevertheless, unlike the other crimes subjected to the jurisdiction of the Court, the crime of aggression was not defined in Rome. This crucial lacuna was filled only in 2010, in the Kampala Review Conference, where a new Article 8 bis13—defining the crime of aggression—was inserted in the Statute (although the Court’s exercise of jurisdiction over the crime has been deferred until 2017 at the earliest).14 Notwithstanding the prohibition and even criminalization of a war of aggression, the jus in bello applies equally to all Belligerent States in an international armed conflict, regardless of their standing from the vantage point of the jus ad bellum.15 When combatants of both sides (aggressor and the victim of aggression) resort to violence in an international armed conflict— even though they use deadly force against the enemy—they benefit from a protective unbrella, provided by LOAC, screening combatants from prosecution for acts that are ordinarily penalized by the criminal codes of all countries. This protective umbrella is made available to the individual actors even when they use deadly force, as long as they operate in a manner compatible with the conditions set by LOAC. The umbrella is folded once such conditions are breached. Then the individual actors become either unlawful combatants (who are not entitled to prisoners-of-war status and are subject to ordinary prosecution by the enemy’s domestic courts) or even war criminals (who are subject to possible international prosecution. 10  Charter of the United Nations (1945), 9 International Legislation: A Collection of the Texts of Multipartite International Instruments of General Interest, ed. M.O. Hudson (1950): 327, 332. 11  International Military Tribunal (Nuremberg trial), Judgment (1946), 1 Trial of Major War Criminals before the International Military Tribunal 171, 219–223. 12  Rome Statute of the International Criminal Court, United Nations Juridical Yearbook (1998): 294, 296. 13  Kampala Review Conference, Resolution 6, Annex I, 49 International Legal Materials (2010): 1334–1335. 14  See common Paragraph 3 of Articles 15 bis and 15 ter, ibid., 1335–6. 15  See Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge: Cambridge University Press, 2010), 3–4.

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The Actors Pirates must not be mistaken for combatants in an international armed conflict: pirates resort to violence as private persons, whereas combatants do so while belonging to one of the Belligerent States and acting as members of its armed forces. LOAC utterly rejects the possibility of lawful combatancy by francs-tireurs. As for belligerent acts at sea and in the air in an international armed conflict, they must be conducted on behalf of Belligerent States by warships (and not by other vessels)16 or by military aircraft (excluding other categories of aircraft).17 Article 102 of the LOS Convention refers to: The acts of piracy, as defined in Article 101, committed by a warship, government ship or government aircraft whose crew has mutinied and taken control of the ship or aircraft are assimilated to acts committed by a private ship or aircraft.18 It must be observed that the mutiny as such may or may not take place in the context of an insurgency generating a non-international armed conflict. The crux of the issue, however, relates to the nature of the acts of violence committed by the mutineers. If these acts are directed against the central Government of their own State (or against other organized armed groups competing for control within the State), they should be seen through the lens of LOAC governing non-international armed conflicts. Conversely, if the mutineers commit acts of violence while acting in their private capacity— especially against foreign vessels/aircraft—their acts will constitute piracy (assuming that they are carried out for private ends on or above the high seas).19 Absent mutiny, State-commissioned platforms—warships and military ­aircraft—cannot be deemed to be engaged in piratical acts. Admittedly, in 1937 (at the time of the Spanish Civil War) an Arrangement was concluded in Nyon ‘against piratical acts by submarines’, committed in the Mediterranean 16  See San Remo Manual on International Law Applicable to Armed Conflicts at Sea, ed. L. Doswald-Beck (Cambridge: Cambridge University Press, 1995), 90 17  See HPCR Manual on International Law Applicable to Air and Missile Warfare (Cambridge: Cambridge University Press, 2013), 108–110. 18  LOS Convention, supra note 2, at 58. 19  The claim that such mutineers may be entitled to prisoners-of-war status under LOAC when captured by the warship of a foreign State is untenable. See M.H. Passman, “Protections Afforded to Captured Pirates under the Law of War and International Law”, 33 Tulane Maritime Law Journal (2008): 1, 22.

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by unidentified (actually, German and Italian) submarines and resulting in the sinking of merchant ships not belonging to the conflicting parties.20 The Nyon Arrangement promulgated that such attacks ‘should be justly treated as acts of piracy’. The rationale apparently was that, since no Government conceded that its submarines had committed the attacks, this was a ‘piratical situation’.21 Generally speaking, it is self-evident that attack submarines are not craft that are likely to be operated by persons acting in their private capacity. The International Law Commission explicitly rejected the Nyon Agreement as a precedent confirming ‘a new law in process of development’, and it concluded that the special treaty law does not ‘invalidate the principle that piracy can only be committed by private ships’.22 En principe, submarine attacks must be seen as coming within the the framework of LOAC. The Purpose An international armed conflict may have multifarious objectives, all relating to the inter-State arena. As mentioned earlier, LOAC does not permit individual acts of depredation. More particularly, it prohibits pillage of enemy property for private ends. The perpetrators of pillage in wartime are deemed war criminals.23 This is true wherever they act: on land, at sea or in the air. Grosso modo, insurgent ships or aircraft operating in the course of a noninternational armed conflict cannot be considered as indulging in piracy: their acts will be considered as carried out for public, rather than private, ends. However, that is generally true only as long as such operations are carried out against the vessels/aircraft of the central Government that they are rebelling against (or rival organized armed groups).24 If the vessel/aircraft attacked belong to foreign countries, and the attack takes place on or above the high seas—for private ends that are not connected to the non-international armed conflict—it would still constitute piracy.25

20  Nyon Arrangement, 1937, 181 League of Nations Treaty Series 135, 137. 21  L.F.E. Goldie, “Terrorism, Piracy and the Nyon Agreements”, International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne, ed. Y. Dinstein (Cambridge: Cambridge University Press, 1989), 225, 243. 22  Report of the International Law Commission, supra note 5, at 282. 23  See Article 8(2)(b)(xvi) of the Rome Statute of the International Criminal Court, supra note 13, at 299. 24  See D. Guilfoyle, “Piracy o ff Somalia: UN Security Council Resolution 1816 and IMO Regional Counter-Piracy Efforts”, 57 International and Comparative Law Quarterly (2008): 690, 699. 25  See J.G., Starke, International Law, 11th ed., ed. I.A. Shearer (London: Butterworths, 1994).

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The Venue Raids conducted—even from the high seas—into an area which is subject to the jurisdiction of a State (including its internal, archipelagic or territorial waters or even reaching inland) exceed the bounds of the definition of piracy. To distinguish them from piracy, such illegal acts of violence are usually called ‘armed robbery’ (a misnomer, considering that the range of violence involved transcends robbery). This expression reflects IMO (International Maritime Organization) terminology for piracy-like activities within a State’s ­jurisdiction.26 The phrase has been used, inter alia, in Security Council resolutions, as well as in international agreements (e.g., the Regional Cooperation Agreement of 2005 on Combating Piracy and Armed Robbery against Ships in Asia).27 Unlike piracy, so-called ‘armed robbery’ may be an integral part of an insurgency and a non-international armed conflict (although this does not follow automatically). In an international armed conflict, hostilities between Belligerent States may take place anywhere in world, except within the territories of neutral States.28 Hostilities are neither confined to encounters between ships or aircraft nor limited to the high seas. In fact, they are mostly committed in land areas, within the respective territories of the Belligerent States. The Target In an international armed conflict, it does not matter whether an attack involves any vessel or aircraft, let alone one or two of them. Attacks in LOAC are defined as ‘acts of violence against the adversary, whether in offence or in defence’.29 Any act of violence will do, whether at sea, in the air or on land (in fact, even cyber space is covered in this broad definition).30

26  International Maritime Organization, Code of Practice for the Investigation of the Crimes of Piracy and Armed Robbery Against Ships (Resolution A.922(22), Annex, paragraph 2.2) (2002). 27  Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia, 44 International Legal Materials (2005): 829. 28  On the region of war, see Y. Dinstein, War, Aggression and Self-Defence, 5th edn. (Cambridge: Cambridge University Press, 2012), 19–24. 29  See Article 49(1) of Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1977, The Laws of Armed Conflicts, supra note 6, at 711, 735. 30  See Y. Dinstein, “The Principle of Distinction and Cyber War in International Armed Conflicts”, 17 Journal of Conflict and Security Law (2012): 261, 264–265.

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The Distinction between Anti-Piracy Action and Armed Conflict

Anti-piracy action has the following six dimensions: (i) The Obligation: All States incur an obligation to cooperate in the suppression of piracy.31 (ii) The Acts: The primary measure taken against pirates consists of seizure of their ship/aircraft.32 All persons on board a pirate-controlled ship/ aircraft may be arrested, tried and punished. Deadly force can be used in case of resistance to seizure and arrest. (iii) The Actors: A seizure on account of piracy may be carried out either by warships or military aircraft, or by any other authorized government ships or aircraft.33 (iv) The Venue: The seizure of a pirate ship or aircraft—like the piratical act itself—can take place only on or above the high seas (or in any other place outside the jurisdiction of any State). (v) The Target: Any ship or aircraft under the dominant control of pirates may be seized, including any vessel or aircraft that they may have captured.34 (vi) Prosecution and Punishment: In Resolution 1976 (2011), the Security Council recognized that ‘piracy is a crime subject to universal jurisdiction’.35 There is no doubt that, under customary international law, a peron charged with piracy, ‘may be tried and punished by any nation into whose jurisdiction he may come’.36 Yet, no international tribunal has jurisdiction over piracy. In LOAC the position is completely different: The Obligation Neutrality in the face of an international armed conflict is a time-honoured, well-entrenched, construct. As pronounced by the International Court of Justice, in the 1996 Advisory Opinion on the Legality of Nuclear Weapons, neutrality is a fundamental principle, subject to the relevant provisions of 31  See Article 100 of the LOS Convention, supra note 2, at 57. 32  Article 105 of the LOS Convention, ibid., 58. 33  See Article 107 of the LOS Convention, ibid., at 58. 34  See Article 103 of the LOS Convention, ibid. 35  Security Council Resolution 1976 (2011), para. 14. 36  Dissenting Opinion of Judge Moore in the S.S. Lotus Case, II World Court Reports, ed. M.O. Hudson (1935), 20, 69.

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the United Nations Charter.37 The saving words are a reminder that, neutrality is not an option once the Security Council has adopted a binding decision (under Chapter VII of the Charter) requiring cooperation with enforcement action directed or authorized by it against an aggressor State. Still, absent such a binding decision, States are not obliged to join the fray: and they may stay away from the armed conflict: if they do, they are not allowed to extend help to any Belligerent Party against its adversary. The Acts Under the law of international armed conflict, acts of violence do not revolve principally around the issue of seizure. Combatants may resort to deadly force against enemy combatants everywhere and at all times (as long as they do not become hors de combat). As far as the high seas are concerned, deadly force can be used against enemy warships and military aircraft without warning. Indeed, in certain exceptional circumstances deadly force may be directed even against private vessels and civilian aircraft.38 It should be pointed out that LOAC is more refined than the LOS norms relating to piracy in that it specifically deals with the pivotal issue of collateral damage to civilians/civilian objects ensuing from an attack against a lawful target. Under LOAC, an attack against a military objective is forbidden if it is expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.39 No similar limitation exists in the law of piracy, despite the fact that innocent people—namely, those captured by the pirates—may be present on board a ship where the pirates have dominant control, and any use of deadly force against that ship may put them at risk.

37  Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, [1996] ICJ Rep. 226, 257. 38  See San Remo Manual on International Law Applicable to Armed Conflicts at Sea, supra note 19, at 17–22. 39  Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), [1977] United Nations Juridical Yearbook 95, 114 (Article 51(5)(b)).

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The Actors In an international armed conflict at sea or in the air, only warships and military aircraft are allowed to attack enemy lawful targets: other government ships and aircraft (for instance, police40 or customs ships/aircraft) are deprived of that right.41 On land, the actors are supposed to be combatants (the armed forces of the Belligerent States). The Venue In an international armed conflict, hostilities between the Belligerent States take place not only on the high seas and in the air above them, but also within the territories of the adversaries. However, the fact that the troops of State B are present in the territory of State A—and are even engaged in military operations there—does not eo ipso signify that the two States are embroiled in an international armed conflict. The incumbent Government of State A may always invite State B to send the latter’s armed forces into the former’s territory, in order to assist it in fighting insurgents or other malfeasers (including pirates acting from land bases). When the armed forces of both State A and B are aligned jointly against insurgents in State A, the armed conflict is non-international.42 Moreover, the Security Council can authorize (in a legally binding decision, adopted under Chapter VII of the Charter) action against ‘armed robbery’, to be taken within the territorial waters of a State and even against land-based sanctuaries of pirates, whether or not the coastal authorities have agreed to such operations. If the armed forces of State A and B clash in consequence of such a resolution, the result is an international armed conflict between the two States. In a series of resolutions, culminating in Resolution 1851 (2008)—a Chapter VII legally-binding decision—the Security Council resolved that States and regional organizations cooperating in the fight against piracy and armed robbery at sea off the coast of Somalia ‘may undertake all necessary measures that are appropriate in Somalia’.43 Originally, this authorization extended for a period of twelve months, but the time-frame was extended (each time

40  Unless the police is integrated in the armed forces. 41  See HPCR Manual on International Law Applicable to Air and Missile Warfare, supra note 21, at 108. 42  See Dinstein, supra note 7, at 169–170. 43  Security Council Resolution 1851 (2008), para. 6.

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for twelve more months) in subsequent Chapter VII decisions: Resolutions 1897 (2009), 1950 (2010), 2020 (2011) and 2077 (2012).44 The texts of the Security Council resolutions in question clearly imply that action may be taken not only within Somalia’s territorial waters45 but also against land-based sanctuaries of pirates.46 However, the resolutions affirm that they were adopted with the consent of the Somali Transitional Government,47 and—if so (with consent at their root)—the action authorized could have been undertaken (theoretically) even in the absence of a binding decision of the Security Council.48 In Resolution 1851, the Security Council promulgated that any measures pursuant to the authority granted in its text “shall be undertaken consistent with applicable international humanitarian and human rights law”.49 The explicit reference to international humanitarian law (IHL or LOAC) is a useful reminder. In Somalia. where the foreign intervention was conducted with the consent of the local authorities, fighting against any insurgents opposed to Somali Transitional Government must be analyzed in the context of a non-international armed conflict.50 But, should the Security Council author­ ize forcible action to be taken within State A against the wishes of the local authorities, the situation may escalate into a veritable international armed conflict between State A and State B (the latter acting under the authority of the Council). If and when the foreign intervention brings about an international armed conflict between States A and B, LOAC will be applicable in its plenitude. The Target In an international armed conflict, lawful targets consist of all combatants (to whom civilians directly participating in hostilities are assimilated) and

44  Security Council Resolution 1897 (2009), para. 7; Security Council Resolution 1950 (2010), para. 7: Security Council Resolution 2020 (2011), para. 9; Security Council Resolution 2077 (2012), para. 12. 45  See A. Roach, “Countering Piracy Off Somalia: International Law and International Institutions”, 104 American Journal of International Law 397 (2010): 400–401. 46  See J. Treves, “Piracy, Law of the Sea, and Use of Force: Developments off the Coast of Somalia”, 20 European Journal of International Law 399, (2009): 404. 47  See Security Council Resolution 1851 (2008), para. 10. 48  See Treves, supra note 56, at 406. 49  Security Council Resolution 1851 (2008), para. 6. 50  See D. Guilfoyle, “The Laws of War and the Fight against Somali Piracy: Combatants or Criminals?”, 11 Melbourne Journal of International Law (2010): 141, 147.

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­military objectives.51 On and over the high seas, all enemy warships of whatever type (above or below the surface of the water) and military aircraft are lawful targets. Additionally, in prescribed settings, private vessels/aircraft may be attacked. In all instances, enemy private vessels/aircraft (and, in some situations, even neutral private vessels/aircraft) may be seized and condemned as prize.52 Prosecution and Punishment In an international armed conflict, unlawful combatants may be prosecuted and punished by enemy domestic courts. As for war criminals, they are subject (with some qualifications) to the universal jurisdiction of all States.53 Under the Rome Statute of the International Criminal Court, war crimes are also be subject to the jurisdiction of the Court.54 Conclusion Clearly, the suppression of piracy proper under LOS has nothing to do with international armed conflicts or with LOAC. Yet, when ‘armed robbery’ is committed at sea and when measures are taken against the land bases of the perpetrators—with or without the approval of the Security Council—LOAC may come into the picture. The two legal regimes (LOS and LOAC) may apply simultaneously, but any attempt to blend them will end up in confusion and disorientation.

51  See Dinstein, supra note 15, at 89. 52  See ibid., 248–250. 53  See Institut de Droit International, Resolution on “Universal Jurisdiction with respect to the Crime of Genocide, Crimes against Humanity and War Crimes, 71(II) Annuaire de l’Institut de Droit International (Krakow, 2005) (Article 3): 297, 299. 54  Rome Statute of the International Criminal Court, supra note 13, at 296, 298–300 (Articles 5 and 8).

Chapter 25

Un nouvel envisagement sur la piraterie maritime Edison González-Lapeyre

Précision préalable

Ce travail a, pour objectif, l’analyse strictement juridique de ce flagelle qu’affecte le transport maritime. C’est par cela qu’on ne s’engagera pas à l’étude des aspects qui se rapportent aux actions coercitives dirigées à la prévention et à la répression des délits qui le caractérisent. De même, il s’agira d’établir : a) que, par ses caractéristiques spéciales, la piraterie maritime ne peut pas être comprise dans une seule définition. Son caractère changeant, qui se manifeste à travers de très diverses pratiques délictueuses, conseille d’utiliser le critère de la liste de délits qui peuvent encadrer dans elle-même, comme l’a fait la Convention de Rome de 1988 pour la Répression d’Actes Illicites contre la Sécurité de la Navigation Maritime et, plus en détail, le Protocole de 2005 relatif a cette convention et b) bien que ce dernier protocole est entré en vigueur, n’oblige toujours pas à la majorité des pays dont les navires peuvent être affectés par ce type de délit, en dépit de cela, les conventions auxquelles il se rapporte, peuvent et doivent être appliquées aux cas correspondants.

L’importance de la piraterie et son fort développement

La piraterie se remonte aux origines de la navigation maritime, ce que dans une certaine mesure, implique l’affirmation de que cette pratique délictueuse se réalise depuis des millénaires. Dans l’Odyssée, Homère, se réfère au fait qu’Ulysse, dans sa jeunesse, avait développé des actes de piraterie et Ménélas reconnait à ses enfants, que la piraterie avait été la source de sa richesse1. Cela se doit à que, à cette époque-là, naviguer dans la Mer Méditerranée et à travers la Mer Egée, impliquait un énorme danger en vue des éventuelles attaques des vaisseaux pirates. Pendant le Moyen Âge, les dénommés vikings, qui procédaient de l’Europe du Nord, sont devenus un vrai fouet non seulement 1  Sandra Sánchez Gómez, Piratería Marítima. Un problema de actualidad (Guatemala : Universidad Francisco Marroquín, 2002), 4.

© koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004283787_026

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au transport maritime mais aussitôt aux populations côtières, fondamentalement celles d’Écosse, d’Angleterre, d’Irlande et de la France, où ils ont occupé la Normandie au début du Xe siècle, territoire lequel, précisément, conserve toujours la dénomination de ses conquérants. Au XVIIIe siècle, l’action des pirates était si grave et si abominable, que les entreprises liées au transport maritime avaient constitué des organisations de coopération dans la lutte contre la piraterie. Celles-ci constituaient des vraies ligues commerciales, comme la Ligue Hanséatique, laquelle était constituée par plus de cent villes allemandes et du nord de l’Europe comme Anvers, Amsterdam, Gand et Bruges. La découverte de l’Amérique et le déplacement constant d’or, métaux précieux et de bijoux, depuis le Nouveau Monde vers l’Europe, a donné un énorme élan à la piraterie dirigée fondamentalement, contre les vaisseaux espagnols. Au XXe siècle et pendant les années écoulées du XXIe siècle, jusqu’en 2012, la piraterie a augmenté ses activités, tout en affectant le transport maritime, essentiellement, dans l’Océan Indien, le Golfe d’Aden et la Mer Rouge. À partir de cette année, on distingue une diminution auspicieuse de ce type d’attentats, ce qui ne se signifie pas que ce soit convenable d’affaiblir les efforts pour les combattre. L’importance du risque que ce type d’activités entrainent est indubitable, parce qu’il touche l’un des instruments essentiels du développement économique et commercial de la majorité des pays. Pour éprouver cette importance, il suffit de remarquer le fait que plus du 90% du commerce mondial se réalise par des voies maritimes2, et que le danger qui se génère de naviguer, par des voies où la piraterie développe ses activités, apporte des lourdes conséquences, même, du point de vue commercial et économique. Dans la première décennie de ce siècle, il y a eu une hausse de la piraterie maritime d’à peu près 500%. Ces actes délictueux ont eu lieu, essentiellement, au Golfe d’Aden qui a, au nord, le Yémen et au sud, la Somalie, c’est l’un des passages les plus utilisées de la navigation commerciale, au point qu’il peut s’estimer que plus de 20.000 bateaux traversent cette route annuellement pour arriver au canal de Suez. Même, on a estimé que le 12% du commerce mondial passe par ce trajet et que le 30% du pétrole consommé en Europe passe par là3.

2  Edison González Lapeyre, Transport maritime et régime portuaire, Recueil des Cours de L’Académie de Droit International de La Haye, tome 308 (Leiden : Martin Nihjoff, 2005), 263-264. 3  Alfredo Salazar López, « Piratería », Revista de Estudios Marítimos y Sociales (septembre, 2009).

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La piraterie se traduit par une augmentation des prix des assurances et cela entraîne une hausse des prix des frets, que doivent acquitter, en définitive, les consommateurs des produits transportés. Mais de plus, la lutte contre la piraterie à travers des actions coercitives réalisées par des unités militaires, a aussi, un coût élevé, lequel doit se régler avec les impôts payés par les citoyens des pays touchés par ce type d’activités. Par la gravité des délits développés à travers de la piraterie et par l’importance des intérêts qu’il affecte, depuis longtemps, elle a essayé d’être combattue en établissant, dans le plan juridique, des normes punitives très sévères et des formes de coopération entre les États pour la prévenir et la réprimer. Colombos exprime à ce sujet « L’acte de piraterie, en raison de se perpétrer contre tout l’ensemble d’États civilisés, a l’habitude d’être décrit comme un ‘crime international’ et du pirate, on parle de lui comme hostis humani generis, ennemi de la race humaine »4. Précisément, comme conséquence de l’amélioration de la coopération pour prévenir et réprimer la piraterie maritime, on commence à vérifier des résultats positifs. En effet, le 17 janvier de 2013, l’OMI a remarqué que le nombre de cas de piraterie maritime dans la région du Golfe d’Aden et dans les eaux occidentales de l’Océan Indien a diminué, considérablement, pendant 2012, puisque dans ce laps on a registré moins de 300 cas, en comparaison des presque 440 perpétrés l’année antérieure. L’explication fournie par cet organisme international est que : l’intervention de patrouilles des armées internationales dans des eaux somaliennes et la collaboration des autorités de ce pays, ont donné résultat, ainsi que les mesures d’autoprotection mises en application par les navires marchands qui naviguent pas ces aires maritimes. Sans préjudice de cela, l’OMI a réitéré son exhortation aux armateurs, des compagnies maritimes, des propriétaires de bateaux et d’autres opérateurs maritimes à former son personnel et à ses équipages dans les mesures de prévention et de protection contre des pirates à travers de l’instruction et l’implémentation du guide que l’OMI a publié à ce sujet. Définition Il a été essayé, depuis longtemps, de définir à la piraterie, en incluant dans la définition tous les délits qui le caractérisent. La Convention des Nations Unies de Genève du 29 avril de 1958 sur l’haute mer, règle la thématique de la piraterie aux articles 15 à 22. Il est essentiel l’établi à l’article 15 qui dit : 4  C. John Colombos, Derecho Internacional Marítimo (Zaragoza : Aguilar, 1961), 298-299.

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Constituent la piraterie les actes ci-après énumérés : Tout acte illégitime de violence, de détention, ou toute déprédation commis pour des buts personnels par l’équipage ou les passagers d’un navire privé ou d’un aéronef privé, et dirigés : a) En haute mer, contre un autre navire ou aéronef, ou contre des personnes ou des biens à leur bord ; b) Contre un navire ou aéronef, des personnes ou des biens dans un lieu ne relevant de la juridiction d’aucun Etat ; 2) Tous actes de participation volontaire à l’utilisation d’un navire ou d’un aéronef, lorsque celui qui les commet a connaissance de faits conférant à ce navire ou à cet aéronef le caractère d’un navire ou d’un aéronef pirate ; 3) Toute action ayant pour but d’inciter à commettre des actes définis aux alinéas 1 ou 2 du présent article, ou entreprise avec l’intention de les faciliter. 1)

De sa part, l’article 19 établit : Tout Etat peut saisir un navire ou un aéronef pirate, ou un navire capturé à la suite d’actes de piraterie et qui est au pouvoir de pirates, et appréhender les personnes et saisir les biens se trouvant à bord dudit navire ou aéronef, en haute mer ou en tout autre lieu ne relevant de la juridiction d’aucun Etat. Les tribunaux de l’Etat qui a opéré la saisie peuvent se prononcer sur les peines à infliger, ainsi que sur les mesures à prendre en ce qui concerne les navires, les aéronefs ou les biens, réserve faite des droits de tierces personnes de bonne foi. Comme on peut apprécier, cette Convention définit ce qu’on doit comprendre par piraterie, détermine l’espace où ce type de conduites son qualifiables comme de piraterie et habilite la capture et jugement des responsables, dans des circonstances déterminées. De sa part, la Convention des Nations Unies sur le Droit de la Mer adopté le 30 avril de 1982 à New York, définit la piraterie à l’article 101 : a)

On entend par piraterie l’un quelconque des actes suivants : tout acte illicite de violence ou de détention ou toute déprédation commis par l’équipage ou des passagers d’un navire ou d’un aéronef privé, agissant à des fins privées, et dirigé : i) contre un autre navire ou aéronef, ou contre des personnes ou des biens à leur bord, en haute mer ; ii) contre un navire ou aéronef, des personnes ou des biens, dans un lieu ne relevant de la juridiction d’aucun Etat ;

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b) tout acte de participation volontaire à l’utilisation d’un navire ou d’un aéronef, lorsque son auteur a connaissance de faits dont il découle que ce navire ou aéronef est un navire ou aéronef pirate ; c) tout acte ayant pour but d’inciter à commettre les actes définis aux lettres a) ou b), ou commis dans l’intention de les faciliter. A son tour, le Bureau Maritime International définit à la piraterie comme : « tout acte d’abordage contre un navire avec l’intention de commettre un vol ou tout autre crime et avec la capacité d’utiliser la force pour l’accomplissement de l’acte ». Ces trois définitions constituent l’expression d’un effort digne d’être exalté pour englober les actes délictueux au sein du concept de piraterie maritime, mais les mêmes, comme ça arrive fréquemment avec les définitions, offrent une fente interprétative et ne sont pas suffisamment compréhensives. Les définitions des articles 15 de la Convention de Genève de 1958 et celle de l’article 101 de la Convention de 1982, incluent des conditions ou réquisits qui excluent les actes qui peuvent, clairement, être inclus dans cette catégorie de crimes internationaux. En premier lieu, ils établissent que l’acte illégal de violence ou de détention ou l’acte de déprédation, doit être commis « avec un propos personnel », donc, en conséquence, quand les actions délictueuses se rapportent a des propos non personnels, mais collectifs, comme par exemple, ceux qu’une organisation ou une association peuvent perpétrer pour commettre un délit, ne seraient pas incluses, parce que le propos avec lequel ce délit ont été perpétrés ne serait pas ‘personnel’. En deuxième lieu, il est spécifié comme piraterie tout acte de participation volontaire dans l’utilisation d’un navire ou d’aéronef, lorsque son auteur ‘a connaissance des faits dont il découle que ce navire ou aéronef est un navire ou aéronef pirate’. Il s’agit d’une condition très difficile d’être établie, dans la majorité des cas, en raison de que le délinquant qui perpètre ces délits, devrait savoir, avant de réaliser l’acte, que le navire ou aéronef dans laquelle il va être transporté, est qualifiable de pirate. Quand les juristes ont du mal à arriver à une définition satisfaisante dans cette matière et preuve de cela est tout le débattu et résolu aux diverses conventions de l’OACI, l’article 101 de la Convention sur le droit de la mer exige au délinquant avoir connaissance de qu’il va développer son activité criminelle, dans un navire ou aéronef ‘pirate’. Si on tient en compte le niveau d’éducation de la plupart de délinquants qui développent ces activités, la connaissance ­exigée par la Convention, semble même ridicule. En troisième lieu, et c’est ici qu’on se trouve en présence de l’erreur la plus importante de ces définitions, il exige que l’acte de piraterie soit réalisé « contre

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un navire ou aéronef, des personnes ou des biens, dans un lieu ne relevant de la juridiction d’aucun Etat ». Et on affirme que c’est l’erreur la plus importante de cette définition, par deux raisons principales : a) Parce que d’habitude les actes de piraterie sont commis dans la zone économique exclusive des pays, où les gouvernements respectifs exercent un type déterminé de juridiction. Dans d’autres mots, ne seraient pas délits les actes de piraterie commis à l’intérieur de 200 milles marins mesurées depuis les lignes de base côtière, quand il est, précisément, à l’intérieur de cette frange, que dans la majorité des cas ces délits sont commis et b) Parce que les navires qui constituent les proies à prendre par les pirates, naviguent sous un pavillon déterminé et sur ceux-ci, la juridiction exercée sera celle de l’Etat auquel ce drapeau représente. Avec la définition de l’article 101 une personne attaqué et prise par otage par des pirates qui se trouvent à bord d’un navire ne serait pas objet d’un acte de piraterie parce que la norme exige qu’il se trouve dans un endroit où aucun Etat exerce sa juridiction. Par rapport à la définition du Bureau Maritime International de que, par piraterie, on doit comprendre : « tout acte d’abordage contre un navire avec l’intention de commettre un vol ou tout autre crime et avec la capacité d’utiliser la force pour l’accomplissement de l’acte » est aussi l’objet de sérieuses critiques. D’après la définition, quand un navire de la garde côtière aborde, dans une action policière, un autre vaisseau, serait en train de commettre un acte de piraterie. Quand un équipage d’un bateau de pêche, avec violence et par des raisons de caractère syndical occupe un bateau, il commettrait un acte de piraterie. Mais, de plus, on insiste sur la présence de l’intention d’aborder en usant la force et évidemment, il est très difficile de déterminer et prouver les intentions. Dans le plan doctrinaire, nombreuses définitions ont été proposés dans cette matière. D’après Paul Fauchille la piraterie est le banditisme en mer5, pour Carlos Calvo est « tout vol ou pillage d’un navire ami, tout acte de violence commis à main armée en mer contre personne ou des biens d’un étranger, que ce soit en temps de paix ou de guerre »6. De sa part, Fenwick, sans donner une définition de ce qu’on comprend par piraterie, et après avoir soutenu qu’on n’a jamais débattu que la persécution et le châtiment du vol en haute mer constitue un acte légal des états comme mesure d’autodéfense, fait référence au Projet Harvard sur la Piraterie de 1932, qui attire l’attention sur la grande variété existante de définitions de piraterie et l’importante différence

5  Paul Fauchill, Traité de Droit International Public, T. I, 2ª. parte (Paris: Rousseau, 1921), 72. 6  Carlos Calvo, Le droit international théorique et pratique, T. I. (Paris: Rousseau, 1880), 578.

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qui doit être établie entre la piraterie considérée du point de vue du droit international et la piraterie contemplée par le droit local7. Louis Cavaré effectue une énumération des conditions requises pour qu’on se trouve en présence d’actes de piraterie et incluse a l’intérieur de celles-ci l’exécution d’actes de violence contre personnes ou biens, l’endroit d’exécution doit être en haute mer et que les actes doivent mettre en danger la sécurité générale et exclue, en partageant l’opinion de Gidel, que le propos nécessaire soit l’enrichissement, il préfère parler de ‘propos personnels’8. Max Hochleitner soutien que la piraterie est constituée par des « actes de force commis en haute mer par un navire privé » et ajoute que la piraterie est considérée comme une entreprise navale apolitique, destinée à l’exercice habituel du dépouillement violent des embarcations de toutes les nationalités. C’est une action illicite, avec l’haute mer comme champ d’opérations. Les actes de force sont dirigés contre des personnes et ont pour but l’enrichissement à travers de délits9. C’est spécialement intéressant l’exposition faite à ce sujet par Karl Strupp qui, après avoir définie la piraterie comme celle commise par « les membres d’un équipage ou passagers d’un vaisseau qui navigue par les mers, par ses propres moyens, c’est-à-dire, sans avoir été autorisés par un gouvernement et avec ­l’objectif de commettre d’actes de pillage contre les biens, ou d’actes de violence contre les personnes », ceci est intéressant, parce qu’après s’être référé à certains aspects caractéristiques de la piraterie il exprime que « le pirate est un ennemi de l’espèce humaine, parce qu’il est dangereux pour toutes les nations ; il perd sa nationalité et est justiciable part les tribunaux du pays qui l’a capturé en vertu d’une coutume du Droit International Public admise par les Etats » et ajoute entre parenthèses (« Dans ce sens expressément, le traité célébré par les Etats américains à Montevideo, le 23 janvier de 1989 »)10. Le juriste uruguayen, Heber Arbuet Vignali, qui a publié des travails sur ce sujet depuis plus d’un demi-siècle, définit à la piraterie dans le domaine international, en disant que :

7  Charles G. Fenwick, Derecho Internacional (Buenos Aires: Bibliográfica Omeba, 1963), 368. 8  Louis Cavaré, Le Droit International Public Positif, T. II (Paris: Pedone, 1951), 476-477. 9  Max Hochleitner, Derecho Internacional Público (Buenos Aires: Depalma, 1952), 171-172. 10  Karl Strupp, Éléments du Droit International Public Universel, Européen et Américain, T. I (Paris: Éditions Internationales, 1939), 164-165.

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. . . est tout acte illégal de violence physique ou psychique ; exercée par des membres de l’équipage ou les passagers d’un navire ou aéronef privé, ou étatique dont l’équipage a brisé l’ordre hiérarchique de dépendance avec l’Etat ; en agissant par son propre compte ;avec un propos personnel de profit direct des résultats matériels ou intellectuels de l’acte ; contre des biens, personnes, autres navires pu aéronefs ; réalisé dans des lieux non soumis à la souveraineté d’aucun Etat ; en temps de paix ou de guerre11. On doit reconnaitre que dans cette définition, inspirée par celle établie dans la Convention à l’article 101, un plus grand nombre de délits qui peuvent rentrer dans le concept de piraterie ont été inclus, mais non tous les délits. Avec le respect pour l’effort réalisé par cet auteur de traités, nous considérons que les conditions qu’il exige pour que nous nous trouvions en face d’un délit de piraterie maritime, offrent les mêmes objections que nous avons faites pour la définition de la Convention sur le droit de la mer en ce qui concerne les fins ‘privés’, ‘au profit direct’ et que la piraterie doit se dérouler dans des endroit non soumis à la juridiction d’aucun Etat, mais de plus nous entendons que le dernier passage de la définition du Professeur Arbuet Vignali, quand il manifeste que l’acte doit être réalisé ‘en temps de paix ou de guerre’ génère une confusion car, il pose le doute sur, s’il se réfère aux pays qui sont touchés par cet acte criminel, ou s’il se réfère à d’autres situations de conflit armée. On donne dans ce cas un éclaircissement, qui est absolument inutile et que, au lieu de renforcer la définition, il l’affaiblie, conformément au vieux aphorisme que exprime ‘on affaiblit ce qu’on explique trop’.

La Zone Economique Exclusive et la loi du pavillon

C’est clair que dans les définitions qu’on a analysée sont exclues des mêmes, les actes délictueux, normalement, considérés de piraterie, quand ils sont commis dans la ZEE. En effet, on trouve dans celles-ci, les activités délictueuses propres

11  Heber Arbuet Vignali, « La importancia de la piratería en el sistema jurídico internacional posmoderno », Revista Naval (août 2012) : 100-101. On doit remarquer que, dans son article « Piratería y acción política », Anuario Uruguayo de Derecho Internacional, T. II, 1964, Montevideo 1965 : 255, il montre qu’il s’agissait d’une description explicative plutôt que d’une définition concise, soutien la même définition mais ajoute, quant à l’espace de commission des crimes l’expression « lugares terra nullius ».

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de la piraterie maritime, dans des zones non soumises à la souveraineté ou à la juridiction des pays côtiers. C’est un fait que dans la zone économique exclusive les Etats exercent, sur déterminés biens, des droits de souveraineté, comme l’établi de forme catégorique les articles 55 et 56 de la Convention sur le droit de la mer. Et ces droits, limités fondamentalement par des aspects économiques, d’investigation, protection et préservation des ressources vivants et non vivants, à la production d’énergie dérivée de l’eau, entre autres, ne s’étend pas au-delà de 200 milles marins des lignes de base à partir desquelles est mesurée la largeur de la mer territoriale.Mais, de plus, ces définitions n’ont pas pris en compte le fait que, même quand l’attaque se réalise en dehors de la ZEE, c’est-à-dire, en haute mer, généralement elle va se donner contre un bateau marchand qui navigue sous le pavillon d’un pays déterminé. Et le Droit International, depuis les temps de Grotio et Puffendorf, entend que, sur ce bateau, exerce la souveraineté l’Etat du drapeau que celui-ci arbore12. C’est-à-dire, que le crime ou la série de crimes que, d’habitude, on considère propres de la piraterie maritime, ne vont pas se dérouler dans des endroits non soumis à la souveraineté d’aucun Etat, au contraire, dans un important nombre de cas, ils vont se commettre dans un endroit (le navire attaqué) qui est soumis à la juridiction du pays de son drapeau. John Colombos, même, lui attribue une énorme importance au régime qui résulte du drapeau arboré par las navires et a soutenu que le maintien de la loi et de l’ordre en haute mer a été accompli « grâce à la juridiction que les Etats exercent sur les bateaux qui portent leur drapeau » et puis il soutien que « la loi du pavillon est applicable à tous les événements qui surviennent dans le bateaux et soient capables de produire des effets légaux »13. D’autre part, autant la convention émane de la Conférence Maritime de Genève de 1958, comme la Convention sur le Droit de la Mer de 1982, sont emphatiques en établir que « Les navires naviguent sous le pavillon d’un seul Etat et sont soumis, sauf dans les cas exceptionnels expressément prévus par des traités internationaux ou par la Convention, à sa juridiction exclusive en haute mer ». De façon que, l’affirmation de que la piraterie peut seulement se vérifier dans des endroits ‘non soumis à la souveraineté d’aucun Etat’, n’est pas totalement correcte. Au contraire, cette série de délits sont commis assez fréquemment dans des zones soumises à une juridiction étatique.

12  V. Edison González Lapeyre, « La jurisdicción sobre los buques de bandera nacional », Rev. Naval (août de 2010). 13  John C. Colombos, Derecho Internacional Marítimo (Madrid : Aguilar, 1961), 195.

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Manuel Adolfo Vieira, dans son œuvre Derecho penal internacional y derecho internacional penal. El delito en el espacio, si bien il ne définit pas qu’est ce qu’on doit entendre par piraterie, il effectue une classification très intéressante des actes qui le caractérisent, en distinguant la piraterie du droit commun, la piraterie de caractère politique et la piraterie internationale, pour conclure que : ‘Le principe de légalité du principe de nulle penae sine legge’ a disparu avec la signature de la Convention de Genève sur haute mer, dont ses normes – en accord avec son Préambule – « sont déclaratoires des principes établis de Droit International signifiant cette expression la déclaration de la coutume sur ce sujet et, pour les Etats qui ne l’ont pas ratifié, elles vont s’appliquer comme des normes coutumières »14. On regrette ne pas partager le critère soutenu par Vieira qui, d’autre part, ont été émis avant la Convention de 1982, laquelle a modifiée plusieurs aspects accordés à Genève en 1958, ce qui est preuve digne de foi de que la communauté internationale n’as pas fait attention au caractère déclaratif qu’on a voulu donner a la Convention sur Haute Mer et par les objections et critiques qu’on leurs a fait précédemment à la définition que l’article 15 du traité genevois a établi.

Définir la piraterie est affaiblir l’action contre la même

Vespasien Pella, dans son cours à l’Académie de Droit International à La Haye, a critiqué les efforts d’établir des définitions à cette matière, en affirmant que celles qui ont été formulées sont bien insuffisantes ou trop longues ou d’un caractère plutôt descriptif que de définition15. Personnellement, nous nous adhérions à ce critère parce qu’il est toujours d’actualité l’ancien aphorisme du Droit Romain definitio omnia pericolosam est. Toute définition est dangereuse et on croit que dans le sujet de la piraterie maritime, il l’est plus fortement. Et il l’est parce que l’acte de piraterie peut se donner de tellement de formes différentes que l’imagination du juriste n’as pas encore réussi à prévoir et parce que, comme on a remarqué, les définitions faites par des conférences et par la doctrine, ont résulté, en définitive, vulnérables aux critiques et non suffisamment compréhensives. Avec la piraterie on a des situations similaires à ce qui se donne avec le terrorisme, avec lequel, indubitablement a des points de contact. Dans le 14  Manuel A. Vieira, Derecho Penal Internacional y Derecho Internacional Penal (Montevideo : Fundación de Cultura Universitaria, 1969), 271-280. 15  Vespasien Pella, « La répression de la piraterie », Recueil de Cours de l’Académie de Droit International de La Haye, t. 15 (1926): 170.

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Deuxième Congrès de Droit International Privé qui a eu lieu à Montevideo dans les années 1939-40, le juriste uruguayen Jose Irureta Goyena c’est opposé à que l’on donne une définition de terrorisme, en manifestant que sa position était fondé ‘dans l’imprécision de ce délit, dans son caractère auréolé’16. Irureta Goyena a éclairci que, avec sa position, il n’était en aucune façon en train d’avaliser ce genre de crimes, mais, tout simplement, il projetait les difficultés qu’a le droit pour définir les différentes expressions du terrorisme. Le temps écoulé lui a porté raison a ce grand jurisconsulte. On n’a jamais pu arriver à un consensus pour établir, dans une définition qui comprenne tous les actes criminels commis dans le cadre du terrorisme, et, en attention à cela, le chemin à suivre à été celui d’établir catégories de délits spécifiques comme terroristes. À notre jugement, avec la piraterie se donne une situation similaire à celle qui offre le terrorisme, donc il est conseillé de prendre en considération la méthodologie qui a observé le Droit international pour sa prévention et répression.

Une convention sans une définition générique

Mais le fait de que les définitions soient insuffisantes ou trop longues en usant les mots de Pella, ne signifie pas que ce n’était pas nécessaire concerter une convention internationale, spécifique, de répression des actes de piraterie maritime, laissant en dehors les définitions génériques, pour établir des délits spécifiques. De cette façon on suivra le chemin tracé dans cette matière de prévention et répression d’actes de terrorisme et on accordera des formes de coopération pour une lutte plus efficace contre ce flagelle. Dans d’autres mots, c’était nécessaire de laisser d’un coté une éventuelle définition pour établir les délits spécifiques. Dans ce sens, ce qui est arrivé avec les délits qualifiés comme terroristes, était une preuve indubitable de la stérilité de l’effort d’arriver à une définition satisfaisante. A cela il faut ajouter le caractère protéinique des activités qui peuvent être qualifiées de piraterie maritime, et, dans ce sens, l’expérience de l’Organisation de l’Aviation Civile Internationale (OACI) est bien illustrative, car celle-ci a travaillé contre la sécurité de l’aviation civile, en particulier, avec les conventions de La Haye, Montréal et Tokyo, n’avait pas prévu qu’une aéronef pourrait être utilisée comme instrument pour exécuter des actes de terrorisme comme les perpétrés es septembre 2001 à New York et Washington. Si, l’avait pensé, le romancier, Tom Clancy qui 16  V. Edison González Lapeyre, El Terrorismo en el siglo XXI (Montevideo: Ediciones Cruz del Sur, 2007), 60-61.

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réfère à une situation analogue dans son roman ‘Sur Ordre’17, mais non seulement les juristes ne l’avaient pas prévues, mais, ce qui est encore plus grave, les services d’intelligence de tout le premier monde n’ont pas réussi non plus. Comme on l’a soutenu, dans certains de nos travaux, le terrorisme est une hydre de mil têtes qui à des multiples expressions, dont beaucoup d’elles sont difficiles de prévoir. La même chose se donne avec la piraterie maritime, avec laquelle le terrorisme a beaucoup en commun. Le romancier Paul Bonnecarrère, dans son livre Ultimatum18, il fait référence à l’abordage et au détournement d’un navire chargé de 300.000 tonnes de pétrole, dans la Mer Méditerranée, en prenant en otage, l’équipage, par un groupe révolutionnaire qui exige la libération de tous les membres de son organisation, prisonniers dans les prisons de certains pays européens, avec la menace d’ouvrir les cannelles et les robinets des réservoirs pour contaminer la Méditerranée en tournant inutilisables les plages pendants plusieurs années, si les prisonniers ne sont pas libérés. On a ici, une violation à la Convention pour la prévention d’actes de terrorisme contre la sécurité maritime, l’utilisation d’armes automatiques, la prise d’otages et l’extorsion qui résulte de la menace d’une action très grave qui contamine, avec la particularité de celle-ci, c’est-à-dire, la contamination internationale a des conséquences réellement catastrophiques, n’est pas qualifiée comme terroriste par aucune convention. Comme dans le cas du roman de Tom Clancy, dans celui de Bonnecarrère, l’imagination des écrivains est allé plus loin que celle des juristes spécialisés. Donc, le chemin suivi est le plus rationnel, c’est celui de spécifier les délits que, par sa gravité et transcendance, méritent la coopération internationale et soient soumis au principe de aut dedere o aut judicare, c’est-à-dire, que l’Etat ou il peut être appréhendé l’auteur du crime, ou le juge et condamne, ou le livre à l’Etat où il a perpétré ces actes. Et lorsqu’on parle de piraterie maritime, on doit comprendre que l’Etat compétant internationalement et celui auquel correspond le pavillon arboré par le navire affecté, sans préjudice du droit des autorités de l’Etat qui a capturé ceux qui ont commis les délits de piraterie à les juger et condamner. Maintenant bien, les difficultés qu’on a analysée et la nécessité qu’il existe d’accorder un traité qui prenne en compte tous les actes de piraterie possibles, ne signifie pas que l’on doit conclure que la majorité d’eux ne se trouvent pas spécifiés et sanctionnés par le Droit International. Il était nécessaire de développer l’effort pour signer un nouveau traité qui prenne en compte l’impérieuse 17  Tom Clancy, Órdenes Presidenciales (Buenos Aires: Sudamericana, 1997). 18  Paul Bonnecarrére, Ultimatum (Barcelona: Martínez Roca, 1997).

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nécessité de combattre ce problème, en établissant des figures délictueuses spécifiques et des systèmes de coopération plus efficaces entre les membres de la communauté internationale et ceci c’est partiellement accompli avec la Convention pour le répression d’actes illicites contre la sécurité maritime, signé à Rome en 1988. Mais au début du XXIe siècle, on a pu apprécier que la Convention de 1988 devait être actualisé et qu’on devait prendre en compte que le Droit International avait arrivé, dans la prévention de délits terroristes, dans des nombreux cas utilisés par les pirates, comme, par exemple, la prise d’otages et les mesures adoptées pour prévenir certains délits contre la sécurité maritime et portuaire adoptées après les attentats terroristes du 11 septembre de 2001. À la fin du cours qu’on a eu l’honneur de dicter à l’Académie de Droit International de La Haye, en 2004, on a manifesté que : La communauté internationale organisée, dans le cadre de l’Organisation Maritime Internationale, devrait promouvoir une conférence destinée à complémenter, la Convention de Rome du 20 mars 1988 et le Code de l’OMI de 2002, tenant en compte une série de lois approuvées aux EtatsUnis d’Amérique qui semblent raisonnables et que no sont pas comprises dans ces textes juridiques19.

La Convention pour la répression d’actes illicites contre la sécurité de la navigation maritime, signé à Rome en 1988

Ce traité, dans son article 3, spécifie les conduites qui doivent être persécutés et réprimés de façon spéciale et établit l’obligation des Etats parts, de juger et condamner aux responsables ou en défaut, les livrer aux Etats internationalement compétents, les suivants : S’emparer d’un navire ou en exercer le contrôle par violence ou menace de violence. Accomplir un acte de violence à l’encontre d’une personne se trouvant à bord d’un navire, si cet acte est de nature à compromettre la sécurité de la navigation du navire. Détruire un navire ou causer à un navire ou à sa cargaison des dommages qui sont de nature à compromettre la sécurité de la navigation du navire. 19  Edison González Lapeyre, « Transport Maritime et Régime Portuaire », Recueil des Cours de l’Académie de Droit International de La Haye, T. 308 (2004), 377.

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Place ou fait placer sur un navire, par quelque moyen que ce soit, un dispositif ou une substance propre à détruire le navire ou à causer au navire ou à sa cargaison des dommages qui compromettent ou sont de nature à compromettre la sécurité de la navigation du navire. Détruire ou endommager gravement des installations ou services de navigation maritime ou perturber gravement le fonctionnement, si l’un de ces actes est de nature à compromettre la sécurité de la navigation d’un navire. Communiquer une information qu’elle sait être fausse et, de ce fait, compromettre la sécurité de la navigation d’un navire. Blesser ou tuer toute personne, lorsque ces faits présentent un lien de connexité avec l’une des infractions prévues précédemment. L’article 4 de cette Convention établit que la même s’applique si le navire navigue ou si, d’après son plan de route, il doit naviguer dans des eaux, à travers des eaux ou en provenance d’eaux situées au-delà de la limite extérieure de la mer territoriale d’un seul Etat, ou des limites latérales de sa mer territoriale avec les Etats adjacents. De conformité avec l’article 3 de la Convention su le Droit de la Mer : « Tout Etat a le droit de fixer la largeur de sa mer territoriale, cette largeur ne dépasse pas 12 milles marins mesurés à partir de lignes de base établies conformément à la Convention ». Comme on peut constater, il s’agit d’augmenter, de façon très importante, la portée d’application de ce traité, en relation à la Convention sur le Droit de la Mer lequel, comme on a vu, exclue les actes de piraterie commis dans la Zone Economique Exclusive de 200 milles. Sans préjudice de que la Convention de 1988 prévoit le cas d’utilisation de la violence contre l’équipage si l’acte ne met pas en danger la sécurité de la navigation du navire, ne fait pas mention spécifique à l’un des délits que, plus fréquemment, se commettent dans les cas de piraterie maritime. On fait référence à la prise d’otages pour solliciter la rançon. Ce délit se trouve parfaitement prévu dans la Convention des Nations Unies de 1979, contre la prise d’otages, lequel rentre en vigueur en 1986 et que, dans son article 1 établit : quiconque s’empare d’une personne (ci-après dénommée ‘otage’), ou la détient et menace de la tuer, de la blesser ou de continuer à la détenir afin de contraindre une tierce partie, à savoir un Etat, une organisation internationale intergouvernementale, une personne physique ou morale ou un groupe de personnes, à accomplir un acte quelconque ou à s’en abstenir en tant que condition explicite ou implicite de la libération de l’otage . . .

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Commet également une infraction aux fins de la présente Convention, quiconque tente de commettre les délits indiqués précédemment. La prise d’otages, de la façon dont a été régulé par la Convention de 1979 n’a pas de limites territoriales qui peuvent exclure la piraterie maritime. Sans importance de l’endroit où se déroulent ces délits, la Convention sera applicable et l’Etat qui arrête les délinquants les devra juger et condamner, ou, sinon, les livrer à l’Etat dont le navire et/ou équipage a été victime des criminels pour qu’il fasse de même. La Convention de 1988, a signifié un progrès face aux normes déjà existantes, car, elle a fait appel au critère d’établir la conduite délictueuse qui avait pour propos la prévention et répression sans rentrer dans le domaine des définitions et a étendu l’application de la normative aux espaces maritimes jusqu’à la zone de juridiction territoriales des Etats côtiers, mais n’a pas pris en compte d’autres conventions qui étaient et sont applicables à une grande partie des conduites délictueuses qui sont pratiquées dans les actes de piraterie. Cette carence c’est résolue avec l’approbation du Protocole de 2005 relatif à la Conventions pour la répression d’actes illicites contre la sécurité de la navigation maritime qu’on examinera à continuation.

Le Protocole de 2005 relatif à la Convention pour la répression des actes illicites contre la sécurité de la navigation maritime

Cet important traité, qui prétend être complémentaire de la Convention de 1988, constitue un nouvel envisagement juridique par rapport aux délits perpétrés dans les actes de piraterie maritime, car il prend en compte les traités internationaux dirigés à la prévention et répression de certaines des conduites délictueuses caractéristiques de la piraterie maritime et pour établir des procédures de coopération plus fluides et efficaces dans la lutte contre ce fouet. Malheureusement, jusqu’à ce moment, ce sont peu nombreux les pays qui ont ratifié ou adhéré le protocole, avec la particularité que, la plus part des puissances maritimes dont leurs navires peuvent être touchés par ces délits, ne l’ont pas fait20. Sans préjudice de cela, pour s’agir d’un traité qui peut se constituer en un instrument très efficace pour la lutte contre la piraterie maritime, on est

20  A la date de cette publication, ont adhéré ou ratifié ce protocole, l’Espagne, l’Estonie, les Iles Fidji, les Iles Cook, les Iles Marshall, la Lettonie, le Liechtenstein, la République de Nauru, la République Dominicaine, Saint-Christophe-et-Niévès, la Suisse et le Vanuatu.

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o­ ptimistes quant à que, progressivement, il va recevoir beaucoup d’adhésions et de ratifications. Ce Protocole, comme la Convention de 1988, renonce à arriver à une définition assez compréhensive, mais prend en compte, toutes les conventions, résolutions et recommandations, éventuellement applicables. En effet, dans son préambule, il tient en compte la résolution de l’OMI, A. 924(22), où il sollicitait qu’on révise les mesures internationales de caractère technique et juridique existants, et qu’on examine d’autres nouvelles avec le propos de prévenir et réprimer les actes de terrorisme contre les navires et améliorer la sécurité à bord et sur terre. Il lie, de même, ces délits de piraterie maritime avec les délits terroristes et fait référence à des diverses recommandations et résolutions du Conseil de Sécurité des Nations Unies dans cette matière, tout comme les conventions de Tokyo de 1963, de La Haye de 1970 et de Montréal de 1971 pour prévenir les délits contre la sécurité de l’aviation civile, la Convention de 1973 relative à la prévention et répression de délits contre les personnes jouissant d’une protection internationale, celle de 1979 sur la prise d’otages, celle de la protection physique des matériels nucléaires de 1979 avec son amendement de 2005, le protocole pour la répression d’actes illicites contre la sécurité des plates-formes fixes situées sur le plateau continental de 1988 et d’autres conventions pour le répression de délits analogues. Le protocole fait référence à la résolution 59/24 de l’Assemblée Générale des Nations Unies, où il encourage aux Etat à faire partie de la Convention pour la répression des actes illicites contre la navigation maritime et de son Protocole et conclut, le préambule, en n’estimant pas nécessaire l’adoption de dispositions complémentaires à celles de la Convention à fin de réprimer les actes terroristes additionnels contre la sécurité et la protection de la navigation maritime internationale et pour augmenter son efficacité. Ses deux premiers articles effectuent des précisions terminologiques, qui lui ajoutent une rigueur technique au protocole car, après avoir établi, à son article 1º, qu’est-ce qu’on doit comprendre : par ‘Convention’ en faisant référence à celui de 1988, par ‘Organisation’, en rapport à l’OMI et par ‘Secrétaire Général’ à celui qui exerce ces fonctions dans cette Organisation, à l’article 2º il corrige l’article 1º de la Convention de 1988, en donnant des définitions précises, qu’est-ce qu’on doit comprendre par ‘navire’, ‘transport’, ‘dommages corporels ou matériels graves’ et aux différents instrument que peuvent être utilisés pour commettre les actes illicites, en faisant mention aux armes biologiques, agents microbiologiques, armes, équipement ou des vecteurs destinés à être utilisés par les délinquants, armes chimiques, etc. L’article 4º est particulièrement important car, en plus de rectifier certains aspects de la Convention de 1988, spécifie de façon précise quels sont les délits

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qu’il va prévenir et réprimer. La liste des conduites délictueuses qu’il établit est étendue et en principe elle comprend celles que d’habitude sont commisses dans le cadre d’actes de piraterie, mais, comme on a montré précédemment, ceux-ci, comme les délits terroristes, son changeants et, de piraterie non prévue par la normative que nous examinons. Mais, ce qu’on considère particulièrement important de ce Protocole, est le fait que, en plus de les invoquer au préambule, il insère comme annexée à la Convention, à son article 7º, une série de traités qui imposent aux Etats parties l’obligation de coopération dans la prévention et répression de ces délits et consacrent le principe de aut dedere aut iudicare pour les responsables des délits. Ces traités étaient et sont applicables à la majorité des conduites délictueuses qualifiables génériquement d’actes de piraterie, mais n’avaient pas été pris en compte par la Convention de 1988. Le Protocole de 2005 établit des formes très précises de coopération entre les Etats parties, qui s’obligent à incorporer ces délits dans ceux susceptibles de permettre une extradition dans tout traité qu’ils accordent dans la matière (art. 10), il exclue expressément de la qualification de délits politiques ceux qui ont été spécifiés par la Convention et la Protocole (art. 11 bis) et il établit l’obligation des Etats Parties de s’accorder « l’entraide judiciaire la plus large possible pour toute procédure pénale relative aux infractions visées précédemment »21.

Une nouvelle approche juridique pour la répression de la piraterie maritime

Le Protocole de 2005 constitue une nouvelle forme d’affronter, du point de vue juridique la prévention et la répression de la piraterie maritime car il ne se limite pas à ce qu’il établit mais il se rapporte aux conventions internationales qui spécifient comme délits terroristes à certaines conduites, éventuellement, utilisées contre la sécurité de la navigation maritime. Il est clair que ces conventions étaient déjà applicables, même lorsqu’elles n’étaient pas invoquées expressément dans une convention, contre cette classe d’activités délictueuses, mais de cette façon, les Etats reconnaissaient une part 21  Arbuet Vignali, op. cit. Rev. Naval, août. 2012, n’est pas d’accord avec ce critère car, à l’article cité, p. 96, il essaye de « démontrer l’insuffisance des systèmes juridiques et des politiques internationales face au problème », en effectuant une analyse des « réponses traditionnelles, comme celle très originale et postmoderne qui cherche à privatiser le contrôle de la menace  ». Il semble clair qu’il n’a pas pris en compte l’établi au protocole de 2005, possiblement, parce qu’à la date de la publication, il n’était pas encore entrée en vigueur.

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de l’obligation de les rendre effectives, en suivant, dans une certaine mesure, le critère établi par la Convention Interaméricaine contre le Terrorisme approuvé par l’Assemblée Générale de l’Organisation des Etats Américains, (OEA) le 6 juin de 2002, actuellement en vigueur parmi 22 pays du système. En effet, l’article 2 de ce traité établit : « Aux fins de la présente Convention sont considérés comme ‘délits’ ceux qui sont prévus par les instruments internationaux indiqués ci-après », en faisant mention aux conventions signée à La Haye en 1970 et celle de Montréal de 1971, qui réfèrent aux attaques contre la sécurité de l’aviation civile, la Convention des Nations Unies de 1973 relative à la prévention et la répression des infractions contre les personnes jouissant d’une protection internationale, la Convention de 1979 sur la prise d’otages, la Convention pour la protection physique des matériaux nucléaires de Vienne de 1980, la Convention de Montréal contre les actes illicites de violence dans les aéroports, la Convention contre la sécurité de la navigation maritime de Rome de 1988, la Convention pour la répression des attentats terroristes à explosif de 1997 et la Convention pour la répression du financement du terrorisme de 1999. La Convention de 1988, complémenté par le Protocole de 2005, dans notre avis, constitue un instrument juridique efficace pour la répression des actes de terrorisme 21, c’est pour cela qu’on peut s’attendre à que, à court terme, les puissances maritimes, qui naviguent les eaux où on trouve avec plus de fréquence la commission d’actes de piraterie, ratifient, ou dans son cas, ­s’adhèrent à ce dernier traité international.

Les législations nationales

Tout le système juridique répressif de la Convention de Rome de 1988 et son Protocole de 2005, vont dépendre, en grande mesure, des législations nationales, c’est-à-dire, du Droit interne des pays qui peuvent, d’une façon ou d’une autre, être affectés avec la piraterie maritime. Dans ce sens l’action des Etats doit être référée à : a) Ratifier ou adhérer le protocole et les conventions auxquelles il fait référence b) Spécifier, dans leur respectif ordres juridiques internes, les délits auxquels se rapportent aussitôt la Convention de Rome de 1988 comme le Protocole de 2005, en prévoyant l’application aux responsables des actes, et par la gravité particulière de ces délits représentent, des peines très sévères et c) Accorder des traités d’extradition et même à incorpores dans leurs législations des normes à ce sujet qui permettent d’accélérer les formalités dans cette matière.

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On doit prendre en considération que le mécanisme de coopération entre les Etats pour la lutte contre la piraterie maritime se fonde sur le principe aut dedere aut iudicare. C’est-à-dire, dans le droit à juger les délinquants qui ont commis ces délits indépendamment du lieu où ces actes de piraterie se sont déroulés, ou de les livrer à l’Etat qui aurait demandé l’extradition pour son jugement, en raison, par exemple, de que le navire attaqué naviguait sous le pavillon de cette nationalité. C’est-à-dire, on laisse de côté le principe de la territorialité de la loi pénale, en vue de la transcendance internationale que ces délits représentent et on confère tan à l’Etat affecté par l’acte de piraterie, comme à celui qui a arrêté à ceux qui les ont perpétrés, le droit de juger les responsables et à, dans son cas, les condamner. Nous pensions que l’OMI devrait, avec ce propos, réaliser une intense campagne de sensibilisation à fin d’adapter les législations nationales aux requêtes qui découlent du développement du Droit International dans cette matière. Autres instruments de coopération dans la lutte contre la piraterie Il y a d’autres instruments lesquels doivent être pris en compte dans la lutte contre la piraterie maritime. Dans ce sens on peut faire référence à : La résolution de l’Assemblée de l’Organisation Maritime Internationale A.584(14) du 20 novembre de 1985 et toutes les résolutions et recommandations que cet organisme a approuvé dans ce sujet, entre lesquelles on peut remarquer le Code pratique pour les investigations des crimes de piraterie et vol armée contre les navires approuvé par l’Organisation Maritime Internationale en 2001 (Code of Practice for the investigations of the Crimes of Piracy and Armed Robbery against ships, IMO Res. 922(22) et le Code Internationale de Sécurité Maritime, approuvé par l’O.M.I., en décembre de 2002, dénommé Code International de Sécurité Maritime (International Ships and Ports Facilities Security Code- ISPS Code). Les travails réalisés et ceux qui sont se déroulent actuellement par le Bureau Maritime Internationale ou International Maritime Bureau, (IMB), avec siège à Paris. Les normes de prévention du terrorisme et de raffermissement contre la sécurité en matière de transport maritime et d’activités portuaires, approuvées par le gouvernement des Etats Unis en 2001 et entrées en vigueur le 2 février 2003, par la dénommé Port and Maritime Security Act. La Convention Européenne pour la répression du terrorisme, signée à Strasbourg le 27 janvier de 1977 laquelle, est applicable, pour les pays parties lorsqu’il spécifie comme délits de terrorisme, les manifestations fréquentes de la piraterie maritime d’après ce qui est prévu par son article 1º, incises d),

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e) et f) référents à la prise d’otages ou la séquestration arbitraire, utilisation de bombes, grenades, fusées et armes à feu automatiques. Certains traités régionaux, parmi lesquelles on peut remarquer, l’Accord de Coopération Régionale sur le Combat contre la Piraterie et les Vols Armés en Asie. Les recommandations de BIMCO (The Baltic and International Maritime Council), qui constitue une association d’entrepreneurs maritimes, avec siège à Copenhague, qui est une organisation non gouvernementale, admise par les Nations Unies. BIMCO a analysé, avec spécial attention, la problématique de la piraterie maritime et certaines de ses recommandations ont été relevées par l’OMI. Les investigations et procédures de coopération policière qui peuvent être développées par l’INTERPOL. Cet organisme, à l’Assemblée Générale célébrée à Hanoi en novembre 2001, avait approuvé la résolution 09, laquelle considère que la lutte contre la piraterie maritime est une priorité qui doit être prise en charge par tous les pays membres et les encourage à échanger information en rapport à la piraterie maritime, à supporter à l’organisation en versant des contributions financières volontaires et en mettant à disposition des fonctionnaires spécialisés pour le Groupe Spécialisé en Piraterie Maritime et confier au personnel spécialisé la réalisation d’investigations légistes sur des endroits où des actes de piraterie ont été commis et de participer dans les équipes de gestion de crise d’INTERPOL spécialisées dans ce phénomène délictueux, tout comme prêter son aide à la formation et développement des capacités des pays parties pour luttes contre ces délits. Synthèse Dans le plan juridique on peut conclure en affirmant : Que le Droit International élabore des normes qui peuvent se constituer en outils efficaces pour la coopération entre les Etats pour prévenir et réprimer cette classe de délits. Qu’il est indispensable que les Etats, en particulier, ceux dont les navires sillonnent, fréquemment, les eaux les plus châtiées par les actes de piraterie, adhèrent ou ratifient, dans ce cas, le Protocole de 2005 relatif à la Convention pour la répression d’actes illicites contre la sécurité de la navigation maritime. Qu’il est d’une importance fondamentale que les pays adoptent, dans ses législations internes, des dispositions qui spécifient et sanctionnent, avec

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des peines très sévères, aux délits que d’habitude sont commis dans ce qui est considéré piraterie maritime, et ratifient les conventions et traités auxquelles on à fait référence. Que, de même, il est nécessaire que les Etats se souviennent de la juridiction qui leur correspond sur les navires qui arborent leurs respectifs drapeaux, pour la spécification des délits et éventuel jugement et condamnation de ceux qui commettent des actes de piraterie contre eux. Que même, certains traités en vigueur doivent être actualisés en incorporant des normes qui peuvent spécifier des nouvelles formes d’attaque contre la sécurité de la navigation maritime. Qu’il est indispensable que au Droit lui soit octroyé la coercibilité qui le fasse respecter et accomplir, parmi des accords comme les célébrés dans la sphère européenne, avec Eunavlor et des opérations comme Ocean Shield, de la part de l’OTAN, ou les américaines CTF-150-151 et l’Opération Atlanta, tout comme l’activité développé par les navires de la Russie, l’Inde, la Chine et la Malaisie déployés dans les zones où sont fréquentes les actes de piraterie maritime. Que, heureusement, on commence à apprécier des résultats positifs dans le combat de la piraterie maritime, après que, en 2012, s’ait réduit, très significativement, le nombre de cas vérifiés mais il ne faux pas céder dans l’effort pour arriver à éliminer ce fouet et disperser toute possibilité d’une recrudescence de celui-ci dans le futur.

Chapter 26

Combating Piracy and Armed Robbery Off the Somali Coast and the Gulf of Guinea James L. Kateka Introduction I am honoured to make this contribution to Liber Amicorum Judge Hugo Caminos. I had the privilege of sitting in an office opposite that of Hugo at the ITLOS in Hamburg for six years. During this period I was lucky enough to benefit from Hugo’s wide experience and wisdom both regarding the law of the sea and other legal matters. He was always a gracious and friendly neighbour. I admire his sharp mind which defies his advanced age. I wish him and Suzanna well for the future. In this essay in honour of Judge Caminos, I shall consider piracy and armed robbery off the Somali coast and the Gulf of Guinea. I have chosen the topic of piracy because of its negative impact on my continent, Africa. While the piracy scourge is a global one, Africa is the continent most affected by it. Africa has a long coastline. Two thirds of African States are either coastal or island nations. It is also to be noted that, while there are 44 landlocked States in the world, 16 of these are African. Furthermore, the length of the African coastline in proportion to its area is less than that of any other continent. The Democratic Republic of Congo (DRC) which is approximately the size of Western Europe has a coastline of only 40 km. Many African States have no naval capacity of any kind. As such they are not in a position to fight against piracy effectively. They are in a vulnerable position because they cannot protect their sea trade from pirates and armed robbers. Like the rest of the world, the bulk of Africa’s imports and exports are transported by sea. Africa is also the continent most affected by illegal, unreported and unregulated fishing (IUU fishing). A report by the Environmental Justice Foundation1 states that global losses due to IUU or ‘pirate fishing’ are estimated to be between US$ 10 billion and US$ 23.5 billion annually. This represents a catch 1  “Pirate fishing exposed: the fight against illegal fishing in West Africa and the EU” available at www.ejfoundation.org.

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between 11 million and 26 million tons of fish. West Africa has the highest ­levels of IUU fishing in the world. In recognition of the linkage between piracy and IUU fishing, the West African States have included a provision to this effect in their Code of Conduct concerning the Repression of Piracy, Armed Robbery in West and Central Africa (Yaoundé Code of Conduct).2 A combination of piracy and IUU fishing constitutes a great danger to Africa’s well being. When maritime trade is interrupted by piracy off the coast of the West Indian Ocean and that of the Gulf of Guinea, the increase in cost is passed on to the African consumer who on average is not rich. When IUU fishing depletes African living resources, the African population of over a billion people is seriously affected because it depends on fish for food. Hence there is a need for a concerted twin-pronged approach to combat the two phenomena in order to safeguard Africa’s marine resources and to ensure the stability of maritime safety and security off the coasts of Eastern and Western Africa.

Piracy in Perspective

Today’s piracy in Africa affects mainly the West Indian Ocean3 stretching from Somalia down to Southern Africa, and the Gulf of Guinea4 in West Africa. The epicentres of piracy and armed robbery are the Somali and Nigerian coasts. Nevertheless, according to a report,5 piracy off the coast of West Africa has now overtaken that off the Somali coast. In 2012 for example, 966 seafarers 2  The Code of Conduct will be considered below. 3  For the purposes of this paper, the countries concerned are those that are signatories to the Djibouti Code of Conduct (DCoC) concerning the repression of piracy and armed robbery against ships in the Western Indian Ocean and the Gulf of Aden, adopted on 29 January 2009. These are Comoros, Djibouti, Egypt, Eritrea, Ethiopia, Jordan, Kenya, Madagascar, Maldives, Mauritius, Oman, Saudi Arabia, Seychelles, Somalia, Sudan, the UAE, Tanzania and Yemen. Mozambique and South Africa joined in 2012. 4  There are different definitions of the ‘Gulf of Guinea’ from historical and geographical perspectives. Thus a functional approach is taken by incorporating countries that took part in the adoption of the recently concluded Yaoundé Code of Conduct. The 22 States involved are: Angola, Benin, Cameroon, Cape Verde, Chad, the Congo (Brazzaville), Cote d’Ivoire, the Democratic Republic of the Congo (DRC), Gabon, Gambia, Ghana, Guinea, Guinea-Bissau, Equatorial Guinea, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone, Sao Tome and Principe and Togo. 5  “The Human Cost of Maritime Piracy 2012”, by the International Maritime Bureau (IMB), the Ocean Beyond Piracy (OBP) and the Maritime Piracy Humanitarian Response Programme (MPHRP) available at www.oceansbeyondpiracy.org.

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were attacked on the West African coast compared to 851 seafarers off the Somali coast. The reason for the increase in piracy attacks on the West African coast is that it has not received the same attention as the Somali coast. For example, there is no international naval force such as Operation Atalanta which operates in the Somali area. The reasons for the decrease in Somali piracy will be further considered below. It suffices to note that there is a difference between the piracy in the Somali and Gulf of Guinea coasts. Whereas West African pirates steal fuel cargo, Somali pirates often demand ransom for the release of ships and their crews.

The Legal Regime of Piracy

The legal regime of piracy has been codified in articles 100 to 107 and 110 of the 1982 Convention on the Law of the Sea (UNCLOS or the Convention). The UNCLOS provisions repeat almost identically articles 14 to 22 of the 1958 Convention on the High Seas (the 1958 Convention).6 The definition of piracy jure gentium in article 101 of UNCLOS is identical to article 15 of the 1958 Convention. Elements of piracy include: (a) any illegal act of violence or detention or depredation (b) committed for private ends, namely, non-public acts lacking state sanction (c) by the crew or passengers of a private ship or aircraft7 (d) piracy jure gentium requires the presence of two ships: the pirate ship and the victim ship8 (e) the geographical scope of piracy jure gentium is the high seas. On the high seas every State may seize a pirate ship or aircraft using a warship or military aircraft, or any other ship or aircraft on government service (article 107 of UNCLOS). Article 86 of UNCLOS describes high seas as parts of the sea that are not included in the exclusive economic zone (EEZ), in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State. 6  Tullio Treves, “Piracy, Law of the Sea and Use of Force: Developments off the Coast of Somalia”, EJIL, Vol. 20 No. 2 (2009). 7  The acts of piracy committed by a warship or government ship and aircraft are assimilated to those committed by a private ship or aircraft when the crew has mutinied and taken control of the ship or aircraft (article 102 of UNCLOS). 8  The two ship requirement distinguishes piracy from hijacking and armed robbery.

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Nevertheless, the UNCLOS provisions on piracy apply in the EEZ by virtue of Article 58(2).9 Under the universality rule which is reflected in article 105 of UNCLOS, any State may seize a private ship or aircraft.10 The universality principle, however, does not authorise the seizure of a pirate ship or aircraft in territorial waters, archipelagic or internal waters. And yet this is the area where most acts of violence against ships take place. The definition of piracy has long been a source of controversy, but it is thought that article 15 (of the 1958 Convention) which is repeated in article 101 of UNCLOS represents the existing customary law.11 In this regard, some commentators view the definition in article 101 as rather narrow because it covers the high seas and excludes the territorial sea.12 Others such as Shearer13 are of the view that the legal regime of piracy under the law of nations has been settled by UNCLOS and that there is no need to supplement or modify this regime. This writer shares the second view as the redefinition of piracy is not feasible in the immediate future. Since the current definition of piracy jure gentium has entered the realm of customary international law, it is best to leave it as it is. Other international legal regimes have been developed to fill the lacuna in the definition, as explained below.

Armed Robbery

Before dealing with the specifics of the regions affected by piracy in Africa, it is necessary to complete the question of definitions. ‘Armed robbery against ships’ is defined as: (a) Unlawful act of violence or detention or any act of depredation, or threat thereof, other than an act of piracy, committed for private ends and directed against a ship or against persons or property on board such a ship, within a State’s internal waters, archipelagic waters and territorial sea 9  “Article 88 to 115 and other pertinent rules of international law apply to the exclusive economic zone in so far as they are not incompatible with this Part” (i.e. Part V on the EEZ). 10  Piracy is an exception to the exclusive jurisdiction of the flag State. A ship retains its nationality even when it becomes a pirate ship. 11  I. Brownlie, Principles of Public International Law (Oxford, OUP, 2008), 229 (footnotes omitted). 12  Treves, op. cit.; Debra Doby, “Piracy Jure Gentium: The Jurisdictional Conflict of the High Seas and territorial waters”, Journal of Maritime Law and Commerce, Vol. 41 No. 4 (October 2010). 13  Ivan Shearer, “Piracy”, available at www.mpepil.com.

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(b) Any act of inciting or of intentionally facilitating an act described in sub-para (a) This definition was first stated in the IMO Code of Practice in resolution A.922 (22) of 29 November 2001 which describes ‘armed robbery against ships’ as “any unlawful act of violence or detention or any act of depredation, or thereof, other than an act of piracy directed against a ship or against persons or property on board such ship, within a State’s jurisdiction over such offences”. Resolution A.922 (22) was repealed by IMO Resolution A.1025 (26) of 2 December 2009 which adopted a definition of ‘armed robbery’ as described above. The 2009 IMO Code of Practice urges all governments to investigate all acts of piracy and armed robbery against ships occurring in areas under their jurisdiction or on board their ships. This is repeated in the Djibouti and Yaoundé Codes of Conduct in identical terms. These Codes are modelled on the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP)14 of 11 November 2004. The ReCAAP definition of ‘armed robbery’ is as follows: (a) any illegal act of violence or detention, or any act of depredation, committed for private ends and directed against a ship or against persons or property on board such ship in a place within a Contracting Party’s jurisdiction over such offences (b) any act of voluntary participation in the operation of a ship with knowledge of facts making it a ship for armed robbery against ships (c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b) There are minor differences of definition in the Djibouti and Yaoundé Codes on the one hand and the ReCAAP on the other hand. Whereas the African Codes use the word ‘unlawful’, the ReCAAP uses the term ‘illegal’. The African Codes apply to areas “within a State’s internal waters, archipelagic waters and territorial sea” while the ReCAAP is applicable “in a place within a contracting party’s jurisdiction . . .”. The ReCAAP definition contains a subparagraph on acts of voluntary participation in the operation of a ship with the knowledge of its being a ship for armed robbery. This is not in the African Codes. However, 14  It came into force on 4 September 2006. States Parties to the ReCAAP are: Bangladesh, Brunei Darussalam, Cambodia, China, India, Indonesia, Japan, Republic of Korea, Laos, Malaysia, Myanmar, Philippines, Singapore, Sri Lanka, Thailand, Vietnam and the UK.

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the three instruments have similarity with regard to the question of ‘private ends’, the area of application and the questions of incitement and intention. While the above definition of ‘armed robbery’ contains some elements similar to those of ‘piracy’, it is different from ‘piracy’ because it involves only one ship and the act takes place within a State’s own jurisdiction; whereas classical piracy jure gentium takes place on the high seas. Armed robbery also does not extend to aircraft which are governed by different international law rules such as the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft.

Djibouti and Yaoundé Codes

It may be noted at the outset that the Yaoundé Code is based on the Djibouti Code which in turn is based on the ReCAAP. It incorporates many elements of the Djibouti Code. The Yaoundé Code aims at developing the capability for maritime law enforcement, capacity building cooperation, as well as communications through information exchange centres. The Yaoundé Code goes further than the Djibouti Code by covering a wider field such as IUU fishing, maritime organised crime, maritime terrorism and other illegal activities at sea. Article 1 of the Yaoundé Code defines “transnational organised crime in the maritime domain” to include money laundering, illegal arms and drug trafficking, piracy and armed robbery at sea, illegal oil bunkering . . . and IUU fishing. Signatories to the Yaoundé Code are required to include this omnibus definition of transnational organised crime in national legislation. It may prove to be difficult for signatory States to implement this definition as some of the crimes mentioned have no clear legally accepted definition. Furthermore, the definition is not exhaustive because article 1(5) has the term ‘includes’. While the definition of ‘piracy’ under the Yaoundé Code is similar to that of UNCLOS, the measures to repress piracy (article 6) by arresting, investigating and prosecuting pirates are to be undertaken through cooperation. However, any hot pursuit of a ship to the territorial sea (same as article 111(3) of UNCLOS) or any seizure made in the territorial sea is subject to the jurisdiction of the coastal State concerned. While there is provision for coordination and information sharing, the Code does not provide for joint operations. This is a drawback to be found in the Djibouti code—although the SADC countries in practice undertake joint operations with South Africa, which has a sizeable navy, in the fight against piracy. As already stated, many African States do not have the capacity to patrol their maritime zones.

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Unlike the Djibouti and Yaoundé Codes, the ReCAAP is binding.15 The Djibouti Code (article 13) and the Yaoundé Code (article 15) provide for the eventual transformation of the Codes into binding multilateral agreements. The Yaoundé Code provides for the Signatories to consult within three years of the effective date of the Code.16 According to the IMB, piracy attacks off the Somali coast have hit a five year low. For example, in 2012 there were 297 attacks compared to 439 in 2011.17 The decline in piracy incidents in the Gulf of Aden and the West Indian Ocean area is due to a combination of a number of factors. The presence of the international naval force, the implementation of best management practices (BMPs), the use of armed guards on board vessels and self-help by seafarers and shipping companies have all contributed to the decline of piracy acts. Nevertheless, Security Council resolution 212518 (2013) urges the international community not to abandon its counter-piracy efforts in spite of a decrease in successful pirate attacks in the Indian Ocean. Among the most significant steps taken in the combating of piracy off the Somali coast was the adoption of Security Council resolution 1816 (2008). The resolution which was adopted unanimously authorises, in its paragraph 7, States which cooperate with the Transitional Federal Government (TFG) to: (a) enter the territorial waters of Somalia for the purpose of repressing acts of piracy and armed robbery at sea, in a manner consistent with such action permitted on the high seas with respect to piracy under relevant international law; and (b) use, within the territorial waters of Somalia, in a manner consistent with action permitted on the high seas with respect to piracy under relevant international law, all necessary means to repress acts of piracy and armed robbery. 15  The ReCAAP provides for an information sharing centre (ISC) located in Singapore, a governing council based on taking decisions by consensus (article 4(6)), for extradition (article 12), mutual legal assistance (article 13), capacity building (article 14) and dispute settlement (article 17). The number of piracy and sea robbery incidents has been decreasing since 2003 in the ReCAAP region due to the enhanced cooperation between the ReCAAP ISC and its focal points at national level and with the shipping industry. 16  The Code came into force on 25 June 2013 (see article 20 of the Code) upon “signature by two or more Signatories). 17  See report available at www.icc-ccs.org/piracyreporting. 18  By paragraph 12 of SCR 2125, the Council “decides that for a further period of 12 months— from 18 November 2013—to renew the authorizations as set out in paragraph 10 of resolution 1846 (2008) and paragraph 6 of resolution 1851 (2008), as renewed by paragraph 1897 (2009)”.

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The extension of criminal jurisdiction to foreign States to intervene in Somali territorial waters—though with the consent of the TFG—is exceptional to the piracy jure gentium which confines such intervention to the high seas. The Somali authorization was regarded by the Security Council as sui generis. Such expansion of the geographical area of piracy jure gentium has not been authorised by the Security Council for other areas affected by piracy such as the Gulf of Guinea. The cooperating States are authorised by resolution 1816 to use ‘all necessary means’ which is UN parlance for the possible use of force.19 Resolution 1816 and subsequent resolutions were adopted on the basis of Chapter VII of the UN Charter because the “the incidents of piracy and armed robbery at sea off the coast of Somalia exacerbate the situation in Somalia, which continues to constitute a threat to international peace and security in the region”.20 Security Council resolution 2077 (2012)21 of 21 November 2012 extended for one year the authorizations as set out in previous Security Council resolutions 1846 (2008) and 1851 (2008). Although there is a decline in piracy off the Somali coast, some of the factors which lead to the high incidence of piracy are still there, including the political and economic instability in Somalia since 199122 when the country fell apart. Secondly, the escalating ransom payments and the non-enforcement of the arms embargo have been recognised by the Security Council as factors that fuel the growth of piracy off the Somali coast. Thirdly, the Somali coastline is over 3,000km long; coupled with Somalia’s claim of 200nm territorial sea, the Somali coast becomes a difficult maritime zone to patrol and enforce laws. Fourthly, the Somali pirates claim to be ‘enforcing’ laws against IUU fishing. This is a lame excuse for piracy and subsequent demands for ransom in 19  Treves (note 6 supra) adds that general international law in authorizing stopping and boarding for the purpose of exercising the right of visit under article 110 UNCLOS or the seizure of a pirate ship under article 105 UNCLOS, presupposes that force may be used to reach these objectives. 20  See the last preambular paragraph of Security Council resolution 2077(2012) of 21 November 2012. In resolution 1816, the Council determined that “the incidents of piracy and armed robbery against vessels in the territorial waters of Somalia and the high seas off the coast of Somalia exacerbate the situation in Somalia which continues to constitute a threat to international peace and security in the region”. 21  See note 18 above concerning the latest extension. 22  It has split into three territories: Somalia with a population of 10 million people; Somaliland with a population of 3.5 million people—it used to be “British Somaliland” which together with the former Italian Somaliland joined to form the Somali Republic in 1960; and Puntland which has autonomy within Somalia—and a population of 3.9 million people. Puntland has been the epicentre of piracy in Somalia.

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order to release hostages. In this regard, it has been suggested that political motives may be behind some of the acts of piracy. It has also been argued that the human rights of the pirates have to be respected. This has been used as the main excuse by some cooperating States that capture pirates and later release them by not prosecuting them. In this regard, it bears quoting from the Naples Declaration which was adopted by the Institut de droit international. The declaration calls upon States “with full regard to the human rights of the victims and of the other persons involved, to implement the relevant resolutions of the UN Security Council . . .”.

The Situation in the Gulf of Guinea

As indicated above, the piracy situation off the West African coast has not received the same attention as that off the Somali coast. And yet the situation in West Africa has overtaken that of Somalia. A limited effort has been made by the Security Council. Its resolutions 2018 and 2039 of 2011 recognise the need for a comprehensive approach led by the regional States. This regional initiative has been spearheaded by the African Union, the Economic Community of Central African States (ECCAS), the Economic Community of West African States (ECOWAS), the Gulf of Guinea Commission, and the Maritime Organisation of West and Central Africa (MOWCA). These States have adopted the Yaoundé Code of Conduct which has been considered above. Resolutions 2018 and 2039 were not adopted under Chapter VII of the UN Charter as was the case for the Somali resolutions. As already noted above, the regional summit of West African States, has taken considerable action by adopting the Yaoundé Code. There is need for more coordination among the States of the Gulf of Guinea. The regional economic groupings of ECOWAS and ECCAS have to develop a programme of information exchange under the Yaoundé Code as this instrument covers both institutions.

Root Causes of Piracy and Armed Robbery

In order not only to fight and suppress but also to resolve the piracy scourge, States have to tackle the root causes of piracy. One of the root causes is IUU fishing which has already been mentioned above. In this regard, the Member States of the Sub-Regional Fisheries Commission (SRFC) of West Africa have requested the ITLOS to render an advisory opinion on the obligations of the

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flag State and the coastal State in cases of IUU fishing within the EEZ. Four questions have been posed for the Tribunal to consider.23 Poverty is another cause of piracy. West African piracy is mainly off the Nigerian coast. It involves the stealing of fuel cargo.24 In this connection, it has been suggested by the International Crisis Group (ICG) to combat the root causes of maritime crime by: (i) fighting crime in the hydrocarbons and shipping sectors by conducting research into illegal trade in fuel in order to identify the companies involved in illegal activities e.g. in the case of Nigeria, there is the problem of stealing of oil products (euphemistically called ‘bunkering’). Nigeria produces 2 million barrels of oil a day. It exports nearly all its crude and has capacity to refine less than a quarter of that oil. Given this scenario, Nigerians have demanded subsidized petrol as their right. Some of this subsidized fuel is diverted to the black market by the roadside where it is sold at a higher price!25 (ii) the ICG recommends the boosting of job creation along the coast, in particular by protecting artisanal fishing, and stimulating the local fishing industry. (iii) the ICG recommends strengthening maritime law enforcement through professional naval forces. In this connection, the AU has set 2050 as target date to secure Africa’s territorial waters. It takes three generations of officers to build a competent navy.26

23  1. What are the obligations of the flag State in cases where illegal, unreported and unregulated (IUU) fishing activities are conducted within the Exclusive Economic Zones of third party States? 2. To what extent shall the flag State be held liable for IUU fishing activities conducted by vessels sailing under its flag? 3. Where a fishing license is issued to a vessel within the framework of an international agreement with the flag State or with an international agency, shall the State or international agency be held liable for the violation of the fisheries legislation of the coastal State by the vessel in question? 4. What are the rights and obligations of the coastal State in ensuring the sustainable management of shared stocks and stocks of common interest, especially the small pelagic species and tuna? 24  The Somali piracy involves demanding ransom for the release of ships and their crews. 25  BBC news, 18 June 2013. 26  The UK Guardian newspaper, 26th October 2012.

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The Security Council has noted that the UN Secretary General’s report has acknowledged that the UN has received little evidence to date to justify claims that illegal fishing and dumping of toxic waste are factors responsible for forcing Somali youths to resort to piracy.27 Nevertheless, this possible link cannot be dismissed. Indeed, the Special Adviser has proposed developing fisheries to give Somalis the means to exploit their resources.28 Furthermore, the Special Adviser has proposed the establishment of an independent investigation committee of scientific experts to determine how to protect the resources and curb the use of that pretext.

Legal Obstacles to Dealing with Pirates

Reference has already been made to the problems associated with the definition of piracy. In this regard, the Report of the Special Adviser to the Secretary General on Legal Issues Related to Piracy off the Coast of Somalia29 observes that “[f]ailure to criminalize piracy in domestic law is the first obstacle to ­effective prosecution”. In resolution 1918 (2010) which was adopted unanimously, the UN Security Council has called upon all States to criminalize piracy under their domestic law and “favourably consider the prosecution of suspected, and imprisonment of convicted, pirates apprehended off the coast of Somalia, consistent with applicable international human rights law”. One of the proposals30 made by the Special Adviser is to encourage all States to adopt universal jurisdiction over acts of piracy.31 He notes, however, that the exercise of such jurisdiction is optional under UNCLOS. States hesitate to try pirates unless their nationals and vessels are involved. Some States use the fear that the human rights of suspects might be violated if these

27  Resolution 2077 (2012) which cites the Secretary General’s report (S/2012/783). 28  Ransom payments in 2009 were US $ 82 million whereas potential earnings lost as a result of IUU fishing were estimated to be US $ 95 million annually. 29  Security Council document S/2011/30 dated 25 January 2011, Annex to the letter dated 24 January 2011 from the Secretary General to the President of the Security Council. 30  See Proposal 6. 31  In proposal 9, he recommends facilitating the prosecution of individuals who intend to commit acts of piracy. This may be difficult to deal with as the suspected pirates throw overboard the tools of their criminal activities when they spot patrolling naval vessels nearby. Thus including “intention” of article 103 UNCLOS in national legislation may not be easy.

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s­ uspects are t­ ransferred to a third State for trial.32 Nevertheless, some of these States have concluded transfer-for-trial agreements with States in the affected region. Kenya and Seychelles have concluded such agreements with the EU and the USA. While these agreements facilitate the dealing with pirates and thereby avoiding the problem of impunity, there is the question of the possible violation of article 105 of UNCLOS which requires the courts of the State which carried out the seizure of the pirate ship or aircraft to try the suspects. Some African States33 have passed legislation to criminalize piracy. In East Africa, Kenya and Tanzania34 have taken the lead. The Penal Codes and the Merchant Shipping Acts of these two countries provide for a definition of piracy and its punishment. In the case of Kenya, the Merchant Shipping law confers upon Kenyan courts wider jurisdiction than that provided by the SUA Convention.35 Interestingly, Kenya has invoked article 101 of the UNCLOS, rather than domestic law to fill the statutory gap or to help in interpreting a statute.36 The Kenyan Court of Appeal overturned a High Court decision of 2010 which had ruled that Kenyan courts did not have jurisdiction to prosecute non-Kenyan suspects captured for piracy on the high seas by foreign forces.37 It held that Kenyan courts have jurisdiction to try the offence of piracy “irrespective of the place of its commission or the nationalities of its perpetrators or victims”. The ruling is thus based on universal jurisdiction which is not incorporated into Kenya’s legislation. 32  States that are parties to the European Convention for the Protection of Human Rights invoke its article 5 which requires that deprivation of liberty must be lawful, proportionate and continue for no longer than is necessary. Counter-piracy is not put on the same level as counter-terrorism legislation in some States which allows for substantial deprivation of liberty of persons suspected of terrorism. 33  Such as Germany (Articles 152 and 153 of the Code of Criminal Procedure), the Republic of Korea (article 6 of the Criminal Code under which Somali piracy suspects were tried by the Busanj District Court in 2011), Spain (Somali pirates tried and convicted in 2011), the USA (has tried several Somali pirates), France (tried Somali pirates in 2009 and 2012), Japan (tried pirates in 2013) and Seychelles (tried Somali pirates using its Penal Code). 34  The Tanzania Merchant Shipping Act applies to aircraft only when they are on the high seas (section 341(3)). 35  Section 370 of the Merchant Shipping Act adopts the offences contained in article 3 of the SUA Convention regarding hijacking and destroying ships, with minor modifications (see James T Gathii, “Jurisdiction to Prosecute Non-National Pirates Captured by Third States under Kenyan and International Law”, 31 Loy. L.A. International & Comparative Law Review, 363 (2009). 36  Gathii (note 35 supra), p. 378. 37  See Re Mohamud Mohammed Hashi, Judgment by Maraga, J.A. on 18th October 2012.

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Conclusion There is an urgent need to take a multi-pronged approach to piracy and armed robbery by the international community. The international and regional instruments cited above as well as action at the national level by States have gone a long way towards alleviating the problem.38 For this purpose, it is essential to encourage international cooperation to deal with the situation in West Africa with the same vigour and determination shown in the case of Somalia. Some confidence building measures are also necessary to reassure States that have concern to prosecute pirates for fear of reprisals against their nationals and ships. What is required is political will to suppress the scourge of piracy and armed robbery which has affected Africa mostly.

38  The international community has taken seriously other international crimes such as genocide, war crimes and crimes against humanity by establishing the ICC and other ad hoc tribunals.

Chapter 27

Combating Piracy: New Approaches to an Ancient Issue Helmut Tuerk Introduction What is commonly regarded as piracy has most likely existed since the beginnings of navigation.1 The concept of piracy has, however, undergone an important evolution from antiquity until its codification in the 20th century. In ancient times almost anyone who attacked another on the open sea was referred to as a ‘pirate’.2 It was only from the late Middle Ages that the word piratae began to be understood as ‘sea thieves’.3 Under customary international law there is no authoritative definition of piracy.4 Many countries criminalize ‘piracy’ that takes place in their own territorial sea or even in their internal waters, which is, however, not piracy under international law.5

* This article is partly based on the book by the author Reflections on the Contemporary Law of the Sea (Leiden/Boston: Martinus Nijhoff Publishers, 2012). See further the articles by the author “Combating Terrorism at Sea—The Suppression of Unlawful Acts Against the Safety of Maritime Navigation”, University of Miami International and Comparative Law Review, vol. 15, Special Issue (Spring 2008). This article is also to be found in M.H. Nordquist et al., eds., Legal Challenges in Maritime Security (Leiden/Boston: Martinus Nijhoff Publishers, 2008), 41; “The Resurgence of Piracy: A Phenomenon of Modern Times”, University of Miami International and Comparative Law Review, vol. 17, Issue I (Fall 2009) and “Piracy and the Law of the Sea,” in Regions, Institutions, and Law of the Sea, Studies in Ocean Governance, ed. Harry N. Scheiber & Jin-Hyun Paik (Leiden/Boston: Martinus Nijhoff Publishers, 2013), 493. 1  J.M. Goodwin, “Universal Jurisdiction and the Pirate: Time for an Old Couple to Part”, 39 Vand. J. Transnat’l L. 973 (2006): 976. 2  See id., p. 978. 3  A.P. Rubin, The Law of Piracy (Honolulu: University Press of the Pacific, 2006), 13. 4  M. Halberstam, “Terrorism on the High Seas: The Achille Lauro”, Piracy and the IMO Convention on Maritime Safety, 82 Am. J. Intl’ L. 269 (1988): 273. 5  M.H. Passman, “Protections Afforded to Captured Pirates Under the Law of War and International Law”, 33/1 Tul. Mar. L.J. (2008): 5.

© koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004283787_028

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The notion of piracy was first codified by the 1958 Geneva Convention on the High Seas6 and later by the 1982 United Nations Convention on the Law of the Sea (UNCLOS)7 in Articles 100 to 107 and 110 which almost literally repeat Articles 14 to 22 of the 1958 Convention. Some countries which are not yet parties to UNCLOS are nevertheless bound by the 1958 Convention so that the respective provisions state the international law on piracy currently in force.8 Article 101 UNCLOS defines piracy, in particular, as any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed on the high seas, against another ship or aircraft, or against persons or property on board of such ship or aircraft. The intention to rob—animus furandi—is thus not required.9 The ‘private-ends criterion’ removes attacks on shipping “for the sole purpose of achieving some political end” from the concept of piracy under current international law.10 The applicability of the rules on piracy only to the high seas, and by virtue of Article 58(2) UNCLOS to the exclusive economic zone (EEZ), however, enables pirates to evade pursuit by crossing into the territorial sea.11 As most attacks against ships take place when they are in port or at anchor or when transiting the territorial sea,12 the International Maritime Bureau (IMB), a specialized division of the International Chamber of Commerce (ICC), for statistical purposes has adopted a broader definition than UNCLOS which also 6  See “Geneva Convention on the High Seas, 29 April 1958”, entered into force on 30 September 1962, 450 UNTS 11, p. 82, available at: http://treaties.un.org/doc/Publication/ UNTS/Volume%20450/volume-450-I-6465-English.pdf. 7  See “United Nations Convention on the Law of the Sea”, 10 December 1982, entered into force on 16 November 1994, 1833 UNTS 3, available at: http://www.un.org/Depts/ los/convention_agreements/texts/unclos/unclos_e.pdf (last visited 25 September 2013), [hereinafter UNCLOS]. 8  T. Treves, “Piracy, Law of the Sea, and Use of Force: Developments off the Coast of Somalia”, 20/2 European Journal of International Law, (2009): 401. 9  See United Nations Convention on the Law of the Sea: A Commentary, Vol. III, Articles 86–132, ed. Nandan, S. Rosenne & N. Grandy (Center for Oceans Law and Policy: University of Virginia Law School, 1982) (The Hague/London/Boston: Martinus Nijhoff Publishers, 1982), 199, [hereinafter Virginia Commentary]; see also J. Hjalmarsson, “Piracy and International Law”, 8/10 Shipping & Trade Law (2008): 1. 10  See J.L. Jesus, “Protection of Foreign Ships against Piracy and Terrorism at Sea—Legal Aspects”, 18/3 The International Journal of Marine and Coastal Law (2003): 379. 11  C.D. Guilfoyle, “Piracy off Somalia: UN Security Council Resolution 1816 and IMO Regional Counter Piracy Efforts”, 57 International Comparative Law Quarterly (2008): 694. 12  See IMO-MSC, “Piracy and Armed Robbery against Ships”, MSC.4/Circ.169, 1 April 2011, 4, available at: http://www.imo.org/blast/blastDataHelper.asp?data_id=30548& filename=169.pdf.

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includes the notion of ‘armed robbery at sea’. Piracy and armed robbery at sea are thus defined as “an act of boarding or attempting to board any ship with apparent intent to commit theft or any other crime with the apparent intent or capability to use force in the furtherance of that act”. This definition covers all actual or attempted acts of armed robbery against ships, perpetrated in the territorial sea and as well as in archipelagic waters, and also attacks against ships at anchor or berthed.13 The Code of Practice for the Investigation of the Crimes of Piracy and Armed Robbery against Ships,14 adopted by the International Maritime Organization (IMO) in 2001, however, makes a clear distinction between these two phenomena. ‘Piracy’ is defined as unlawful acts as set forth in Article 101 UNCLOS and ‘armed robbery against ships’ as “any illegal act of violence or detention or any act of depredation, or threat thereof, other than an act of ‘piracy’, committed for private ends and directed against a ship or against persons or property on board such a ship within a State’s internal waters, archipelagic waters and territorial sea”. Piracy is the oldest and one of the few crimes where universal jurisdiction has been generally recognized under customary international law.15 That principle is also reflected in Article 105 UNCLOS16 which provides that on the high seas or in any place outside the jurisdiction of any State17—which today is hardly a realistic possibility—every State may seize a pirate ship or aircraft, arrest the persons responsible and seize the property on board. The principle of universal jurisdiction has further found its expression in Article 110 (1) UNCLOS relating to the right of visit of vessels on the high seas. This provision generally prohibits all acts of interference by warships regarding foreign ships on the high seas save for certain exceptions, one of which is that “the ship is engaged in piracy”.18 On the basis of Article 58(2) UNCLOS 13  See ICC-IMB, “Piracy and Armed Robbery Against Ships”, Annual Report 1 January– 31 December 2007, available at: http://community.middlebury.edu/~scs/docs/ICC-IMBPRC-2007.pdf, 3. 14  See IMO, “Code of Practice for the Investigation of the Crimes of Piracy and Armed Robbery Against Ships”, Assembly Resolution A.922(22), 29 November 2001, available at: http://www.imo.org/blast/blastDataHelper.asp?data_id=24575&filename=A922(22).pdf. 15  See Halberstam, op. cit., 272. 16  See Passman, op. cit., 5. 17  In its Commentary on article 39 of its 1956 draft articles, the ILC stated that piracy “cannot be committed within the territory of a State or in its territorial sea” as it considered it to be a matter for the State affected to take the necessary measures for the repression of the acts committed within its territory. See Virginia Commentary, Vol. II, S.N. Nandan and S. Rosenne (vol. eds.), N.R. Grandy (ass. ed.), 201 (1993). 18   See I. Shearer, “Piracy”, Max Planck Encyclopedia of Public International Law, ed. R. Wolfrum Max (Oxford: Oxford University Press, 2009), 3, available at:

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universal ­jurisdiction also applies to the EEZ, including the contiguous zone, and is thus not applicable to the territorial sea or archipelagic waters. A seizure of a ship or aircraft on account of piracy may, pursuant to Article 107 UNCLOS, only be carried out by warships or military aircraft, or other government ships or aircraft authorized to that effect. The question may be asked whether UNCLOS regulates the seizure of pirates as a right or a duty, whether the States parties to the Convention are obliged to adopt and implement anti-piracy legislation. The view seems justified that the suppression of piracy besides being a right is also an international duty.19 As the International Law Commission (ILC) pointed out in its Commentary to Article 14 of the Geneva Convention on the High Seas which is identical with Article 100 UNCLOS any State having an opportunity of taking measures against piracy, and neglecting to do so, would be failing in a duty laid upon it by international law. Obviously, the State must be allowed a certain latitude as to the measures it should take to this end in any individual case.20 It has rightly been pointed out that reading Article 100 and Articles 105 and 107 UNCLOS together leads to the conclusion that “States may not lightly decline to intervene against acts of piracy.”21

Piracy and Terrorism at Sea

It is important to distinguish piracy from terrorism at sea. While both phenomena have many similarities and are forms of violent interference with shipping,22 http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e120 6?rskey=UcNnPG&result=1&q=Piracy&prd=EPIL. 19  A. Blanco-Bazán, “War against piracy?: Some Misconceptions and Oversights in the Repression of Crimes at Sea”, II diritto marittimo, Anno CXI, Terza Serie, Fascicolo I (2009): 266; see also R. Wolfrum, “Fighting Terrorism at Sea: Options and Limitations Under International Law”, in: Legal Challenges in Maritime Security, ed. M.H. Nordquist et al. (Leiden: Martinus Nijhoff, 2008), 9. 20  See Articles concerning the Law of the Sea with Commentaries, Yearbook of the International Law Commission (ILC), Vol. II (1956): 282, available at: http://untreaty.un.org/ilc/ publications/yearbooks/Ybkvolumes(e)/ILC_1956_v2_e.pdf. 21   R. Wolfrum, “The Obligation to Cooperate in the Fight Against Piracy—Legal Considerations”, Japanese Journal of International Law, No. 116, Vol. 134, (2009): 95. 22  See Jesus, op. cit., 363.

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there is a marked difference between the goals of pirates and terrorists: while pirates usually seek financial gain, terrorists wish to make a ‘political or ideological’ point, most often coupled with the wanton destruction of human life.23 Furthermore, pirates act with stealth, while terrorists seek publicity with their actions.24 This basic difference between the two groups as to the aims of their actions and the manner of achieving them seems to make a collusion between them rather unlikely. It has thus rightly been observed that the potential for cooperation between pirates and terrorists has probably been overstated.25 As the ‘private-ends criterion’ and the ‘two-vessel requirement’ enshrined in Article 101 UNCLOS made the rules of piracy inapplicable to the seizure of the Italian-flag cruise ship Achille Lauro in 1985 a specific legal regime had to be created relating to the arrest, prosecution, and subsequent detention of those responsible for maritime terrorism.26 As a consequence, in 1988 the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA)27 and a Protocol relating to Fixed Platforms on the Continental Shelf were adopted. The core provision is the requirement for States ‘to extradite or prosecute’—dedere aut iudicare.28 The Convention entered into force in 1992 and at present counts 161 States parties, the Protocol 149.29 In 2005 these instruments were amended by also providing a framework for combating and prosecuting individuals who use a ship as a weapon or means of committing a terrorist attack, or transport by ship terrorists or cargo intended for use in connection with weapons of mass destruction programs. Furthermore, a mechanism was devised for facilitating the boarding in international waters of 23  Tuerk, op. cit., fn. 1, 343. 24  T. Sittnick, “State Responsibility and Maritime Terrorism in the Strait of Malacca: Persuading Indonesia and Malaysia to take Additional Steps to Secure the Strait”, 14 Pacific Rim Law & Policy Journal (2005): 751. 25  S. Bateman, “The Threat of Maritime Terrorism and Piracy is Exaggerated”, in: At Issue, Piracy on the High Seas, ed. N. Berlatsky (Farmington Hills: Greenhaven Press, 2010), 102. 26  See Tuerk, op. cit., fn. 1, 342–344; see also Jesus, op. cit., 388. 27  “Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation”, adopted on 10 March 1988, entered into force on 1 March 1992, 1678 UNTS 221, available at: http://www.unhcr.org/refworld/docid/3ae6b3664.html (last visited 25 September 2009), (hereinafter SUA Convention). 28  Art. 10 SUA Convention. 29  See IMO, “Status of Multilateral Conventions and Instruments in Respect of which the International Maritime Organization or its Secretary-General Performs Depositary or other Functions”: as at July 31, 2013, available at: http://www.imo.org/About/Conventions/ StatusOfConventions/Documents/Status%20-%202013.pdf.

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vessels suspected of engaging in these activities.30 These amendments to the Convention and the Protocol entered into force in 2010, they have, however, to date only been ratified by 24, respectively 20 States.31 The SUA Convention was meant to be an anti-terrorist convention, only applying to acts committed by terrorists as well as ‘unlawful acts other than piracy’.32 As many countries, however, lack appropriate anti-piracy legislation that Convention has also been used to prosecute pirates, as the motive of the person committing any of the offences listed therein is not relevant.33 The Security Council in Resolution 1846 (2008) established a link between the SUA Convention and piracy,34 which has been reaffirmed by further resolutions.35 The use of the SUA Convention in order to suppress piracy has, however, been criticized as not reflecting sound legal policy, inter alia, because piracy is a crime subject to universal jurisdiction, while unlawful acts under the SUA Convention are to be counteracted not through universal, but through multiple jurisdiction.36 A more recent trend in State practice has been discerned not to rely upon the SUA Convention in order to deal with suspected pirates but rather to conclude bilateral transfer agreements and to pass new national laws specifically aimed at piracy.37 30  See U.S. Dep’t of State, “Protocols to the UN Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation: Comments on the Protections Afforded to the Shipping Industry”, available at: http://www.state.gov/t/isn/trty/81727.htm. 31  See IMO, “Status of Multilateral Conventions and Instruments in Respect of which the International Maritime Organization or its Secretary-General Performs Depositary or other Functions”, available http://www.imo.org/About/Conventions/StatusOfConventions/ Documents/Status%20-%202013.pdf. 32  See Blanco-Bazán, op. cit., 266. 33  See R.C. Beckman, “The 1988 SUA Convention and 2005 SUA Protocol: Tools to Combat Piracy, Armed Robbery and Maritime Terrorism”, in: Lloyd’s MIU Handbook of Maritime Security, ed. R.H. Burns et al. (2009): 330; see also R. Collins & B. Hassan, “Applications and Shortcomings of the Law of the Sea in Combating Piracy: A South East Asian Perspective”, 40/1 Journal of Maritime Law & Commerce, (2009): 100. 34  “UN Security Council Resolution 1846” (2008), 2 December 2008, op. para. 15, available at: http://www.un.org/docs/sc/unsc_resolutions08.htm (last visited 25 September 2009). 35  The use of the SUA “Convention for prosecuting pirates was affirmed” by UN Security Council Resolution 1851 (2008), op. para. 5; see, for instance, also “Security Council Resolution 2077” (2012), 21 November 2012, preambular para. 15; see also J. Kraska & P. Wilson, “Piracy Repression, Partnering and the Law”, 40/1 Journal of Maritime Law and Commerce, (2009): 56. 36  See Blanco-Bazán, op. cit., 266. 37  Douglas Guilfoyle, “Combating Piracy: Executive Measures on the High Seas”, International Law and Combating Piracy, Japanese Yearbook of International Law, Vol. 53 (2010): 167.

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The Resurgence of Piracy

After having reached a heyday during the 17th and 18th centuries, piratical activities dwindled to an almost unnoticeable activity at the end of the 19th and for the greater part of the 20th century.38 In the 1960s, piracy, however, slowly started its surge towards emerging once more as a regional, if not a global, menace. This development gave rise to increasing concern by the international community as more than 90 percent of global trade is carried by sea.39 Today, pirate attacks basically occur in the following geographical areas: the Arabian Sea and East Africa, the South China Sea, West Africa, the Indian Ocean, the Malacca Strait, South America and the Caribbean. The total number of acts of piracy and armed robbery against ships reported to the IMO since it began compiling relevant statistics in 1984 was 6,727 by 1 September 2013.40 In 2010 and 2011, maritime piracy reached its highest level since the Piracy Reporting Centre (PRC) of the IMB began tracking such incidents in 1992 with a total number of 445 incidents of piracy and armed robbery against ships in 2010 and 439 in 2011. In 2012, however, piracy on the world’s seas, reached a five year low, with ‘only’ 297 ships attacked. The previous figures were brought down by a substantial reduction in Somali piracy with 75 reported attacks in 2012 as compared to 237 in 2011, 219 in 201041 and only 10 until 1 September 2013.42 Furthermore, the number of successful hijackings by Somali pirates which had risen to 47 in 2010 fell to 28 in 2011, to 14 in 2012 and to only 2 until 1 September 2013. Piracy has, however, since 2010 been significantly on the rise in West Africa, making that region the second most acute piracy problem on the African continent43 and one of the top piracy hotspots in the world. In 2012, 58 incidents, including 10 hijackings, were recorded in the Gulf of Guinea in c­ omparison with 38  See Shearer, op. cit., 2. 39  S. Borgerson, “The National Interest and the Law of the Sea, Council on Foreign Relations: Council Special Report No. 46”, May 2009, Foreword by R.N. Haass, available at: http:// www.cfr.org/content/publications/attachments/LawoftheSea_CSR46.pdf. 40  IMO-MSC, “Reports on Acts of Piracy and Armed Robbery against Ships”, MSC.4/Circ.199, 13 August 2013, available at: http://www.imo.org/OurWork/Security/PiracyArmedRob bery/Reports/Documents/199-June2013.pdf. 41  ICC-IBM, “Piracy Attacks in East and West Africa Dominate World Report”, available at: http:// www.icc-ccs.org/news/711-piracy-attacks-in-east-and-west-africa-dominate-world-report. 42  ICC-IBM, “Piracy and Armed Robbery News & Figures”, available at: http://www.icc-ccs .org/piracy-reporting-centre/piracynewsafigures. 43  UN Security Council, Letter dated 18 January 2012 from the Secretary-General addressed to the President of the Security Council, S/2012/45 19 January 2012, op. para. 5, ­available at:

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25 incidents in 2011;44 and the number of incidents off Nigeria increased from only 10 in 2011 to 27 and to already 28 as of 1 September 2013. While the trend of falling numbers of pirate attacks off the coast of Somalia has thus been continuing in 2013, the Gulf of Guinea represents an area of increased concern in view of the rapidly rising number of incidents, often characterized by extreme violence.45 Another hotspot of piracy and armed robbery against ships with the number of incidents increasing since 2009 is the Indonesian archipelago where ships are mostly being boarded not in the course of navigation but while at anchor.46 The surge in piracy and armed robbery against ships in recent times has been attributed to many factors: the poverty of coastal populations and the desire for financial gain, an insufficient legal framework and the lack of a response mechanism to counter piratical activities, illegal fishing and the dumping of toxic wastes by foreign ships, or, as in the case of Somalia, in particular the absence of an effective government and economic collapse.47 Whatever the underlying causes may be, piracy and armed robbery at sea have in past years become an organized, lucrative, and attractive criminal activity, which appears to have strong links to organized crime,48 extracting increasingly large sums of ransom from the release of hijacked vessels and their crews. In 2012, the average amount of ransom paid to pirates for the release of a hijacked vessels and its crew was USD $5 million.49 In view of this disturbing development the international community as a whole as well as the States of the geographic regions most affected by piratical activities have gradually been prompted to take effective countermeasures. http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4 FF96FF9%7D/AUUN%20S%202012%2045.pdf. 44  ICC-IMB, “Six month drop in world piracy”, IMB report shows, 16 July 2012, available at: http://www.icc-ccs.org/news/747-six-month-drop-in-world-piracy-imb-report-shows. 45  UN Security Council Resolution 2018(2011), 31 October 2011, preambular para. 1. 46  ICC-IMB, “Piracy and Armed Robbery against Ships”, Report First Quarter 2013, pp. 24–25, available at: http://www.icc-deutschland.de/fileadmin/icc/Meldungen/2013_Q1_IMB_ Piracy_Report.pdf. 47  Jesus, op. cit., 365; see also N. Stracke & M. Bos, “Piracy—Motivation and Tactics: The Case of Somali Piracy”, Gulf Research Center, Knowledge for All (2009): 16. 48  UN Security Council, “Report of the Secretary-General on the protection of Somali natural resources and waters”, S/2011/661, 25 October 2011, para. 63, available at: http:// daccess-dds-ny.un.org/doc/UNDOC/GEN/N11/540/51/PDF/N1154051.pdf?OpenElement. 49  See Yury Fedotov, “Executive Director of UNODC”, Message of 27 September 2012, available at: https://webmail.unvienna.org/production/misc/specialmessages.nsf/c666 e4db34f6b87a.

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International Cooperation in the Fight against Piracy

The phenomenon of piracy and armed robbery against ships has drawn more and more attention from the international community since the early 1980s, with the IMO, in particular its Maritime Safety Committee (MSC), playing a leading role. Over the years a number of recommendations addressed to governments regarding the prevention and suppression of piracy and armed robbery against ships were adopted and this connection valuable guidance was and is being given, in consultation with industry representatives, to shipowners, ship operators, shipmasters and crews.50 These efforts culminated in the IMO’s Global Maritime Security Capacity Building Programme, adopted in 2013,51 with a particular focus on the Western Indian Ocean and the Gulf of Aden as well as the West African region,52 in particular in the Gulf of Guinea.53 The IMO had already in 1983 begun to urge governments to take as a matter of “the highest priority, all measures necessary to prevent and suppress acts of piracy and armed robbery against ships in or adjacent to their waters, including the strengthening of security measures”.54 In 2005 this was once again reiterated,55 in particular in view of the increasing number of attacks against shipping in the Malacca Strait, one of the world’s vital maritime passages. It has been pointed out that the international attention paid to the Malacca Strait perhaps distracted attention from the growing piracy crisis off the coast of Somalia which was only noted as a concern by the UN Security 50  IMO-MSC, “Piracy and Armed Robbery Against Ships: Guidance to shipowners and ship operators, shipmaster and crews on preventing and suppressing acts of piracy and armed robbery against ships”, MSC/Circ.623/Rev. 3, 29 May 2002, available at: http://www .marad.dot.gov/documents/HOA_IMO%20Guidance%20Circular.pdf. 51  See also IMO, “IMO Secretary-General welcomes adoption of new West and Central Africa piracy and maritime law enforcement code by Heads of State”, available at: http:// www.imo.org/MediaCentre/PressBriefings/Pages/23-westandcentralafricacode.aspx. 52  See “Code of Conduct Concerning the Repression of Piracy, Armed Robbery Against Ships, and Illicit Maritime Activity in West and Central Africa”, Briefing 23, June 26, 2013, available at: https://www.prc.cm/files/f7/26/ec/8acea8ec3a597473a76bd03c76140 019.pdf. 53  IMO, Circular letter No. 3394, 15 August 2013, available at: http://www.imo.org/OurWork/ Security/SecDocs/Documents/Piracy/CL3394.pdf. 54  See IMO, “Measures to Prevent Acts of Piracy and Armed Robbery Against Ships”, Assembly Resolution, A.545 (13), 17 November 1983, available at: http://www.imo.org/ blast/blastDataHelper.asp?data_id=22356&filename=A545(13).pdf. 55  See IMO, “Piracy and Armed Robbery against Ships in Waters Off the Coast of Somalia”, Assembly Resolution A.979 (24), 23 November 2005, available at: http://www.imo.org/ blast/blastDataHelper.asp?data_id=25750&filename=A979(24).pdf.

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Council in 2006.56 Two years later it began to adopt a number of binding resolutions under Chapter VII of the UN Charter, thus providing the basis for effective international action in that region. The work of the IMO regarding piracy and armed robbery at sea also has the full support of the UN General Assembly which regularly addresses this issue, recognizing the crucial role of international cooperation in this field. In order to overcome the problem that UNCLOS does not permit the seizure of a pirate ship in the territorial sea, archipelagic waters or internal waters, even for acts falling within the definition of piracy that have been committed on the high seas57 the Security Council in Resolution 1816 (2008),58 with the express consent of the Transitional Federal Government (TFG) of Somalia, authorized States cooperating with that Government in the fight against piracy and armed robbery at sea off the coast of Somalia to enter the territorial waters of Somalia for that purpose. In order to allay concerns on the part of States with a history of piracy problems the authorization by the Security Council which only applies to the situation in Somalia is not to be considered as establishing customary international law.59 Security Council Resolution 1851 (2008)60 extended this authorization even to land-based operations in Somalia which has, however, only had rather limited effect as States are understandably highly reluctant to get involved in ground operations in Somalia. This resolution furthermore invited all States and regional organizations fighting piracy off the coast of Somalia to conclude special agreements or arrangements with countries willing to take custody of pirates in order to embark law enforcement officials, so-called ‘shipriders’ from the latter countries, in particular countries from the region, to facilitate the investigation and prosecution of piracy suspects. The resolutions adopted by the Security Council with respect to Somalia which go beyond the rules of current international law also provide a legal basis for interception operations by the warships of a large number of countries, patrolling the waters of the Red Sea, the Gulf of Aden, the Indian Ocean off the coast of Somalia, the Arabian Sea and the Gulf of Oman. In support of 56  See “UN Security Council Resolution 1676” (2006), 10 May 2006, available at: http://www .un.org/docs/sc/unsc_resolutions06.htm (last visited 8 October 2013); see also Guilfoyle, Combating Piracy (fn. 37), p. 149. 57  See Virginia Commentary, Vol. II (fn. 9), 215. 58  “UN Security Council Resolution 1816” (2008), 2 June 2008, available at: http://www .un.org/docs/sc/unsc_resolutions08.htm. 59  See also Treves, op. cit., 405. 60  See “UN Security Council Resolution 1851” (2008), 16 December 2008, available at: http:// www.un.org/docs/sc/unsc_resolutions08.htm (last visited 26 September 2013).

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these resolutions three anti-piracy task forces have been assembled since 2008: EUNAVFOR (the European Union Naval Force) Somalia—Operation ‘Atalanta’, Operation ‘Ocean Shield’, launched by NATO, and the US-led Combined Maritime Forces, a multinational naval coalition.61 Military vessels have further been sent by individual States, such as China, India, Japan and Russia. The international navies play a critical role in the prevention of Somali piracy and are instrumental for the significant drop in attacks since 2012.62 It is therefore considered vital that they remain in the region for the foreseeable future.63 In 2010 Interpol formed a Maritime Piracy Task Force, which is working in close cooperation with these naval forces and is aiming at improving evidence collection, facilitating data exchange and building regional capabilities.64 In addressing the worsening piracy situation off the coast of West Africa, the Security Council in Resolutions 2018 (2011)65 and 2039 (2012)66 recognized the need for adopting a comprehensive approach led by the countries of the region to counter the threat of piracy and armed robbery at sea in the Gulf of Guinea and their underlying causes, and the need to build on existing national, regional and extra-regional initiatives to enhance maritime safety and security in that area.67 As a follow-up, the European Union in 2013 launched a new initiative to boost security and the safety of maritime routes across seven countries in the region.68 61  See “Report of the Secretary-General pursuant to Security Council Resolution 1950” (2010), S/2011/662, 25 October 2011, para. 45, available at: http://oceansbeyondpiracy. org/sites/default/files/25_october_2011_report_of_the_secretary-general_pursuant_to_ security_council_resolution_1950_2010_0.pdf (last visited 2 October 2013). 62  ICC-IMB, op. cit., fn. 48, 22. 63  Tuerk, op. cit., fn. 1, 94; see also ICC-IMB, “Piracy and Armed Robbery against Ships”, Report 1 January–31 December 2010, available at: http://www.steamshipmutual.com/ Downloads/Piracy/IMBPiracyReport2010.pdf. 64  See the Interpol website http://www.interpol.int/Crime-areas/Maritime-piracy/Maritimepiracy. 65  “UN Security Council Resolution 2018” (2011), 31 October 2011, available at: http:// www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96 FF9%7D/UNOWA%20S%20RES%202018.pdf. 66  “UN Security Council Resolution 2039” (2012), 29 February 2012, available at: http:// www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2039(2012)&referer=http://www .un.org/en/sc/documents/resolutions/2012.shtml&Lang=E. 67  IMO-MSC, “Piracy and Armed Robbery against Ships, Incidents off the Coast of West Africa”, MSC 92/18, 26 April 2013, 3, available at: http://docs.imo.org/. 68  See “New EU Initiative to Combat Piracy in the Gulf of Guinea”, European Commission, IP/13/14, available at: http://europa.eu/rapid/press-release_IP-13-14_en.htm. These

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Regional Cooperation to Suppress Piracy

A successful eradication of piracy and armed robbery at sea not only calls for action by the competent international organizations and coordination among the members of the international community at large but also for the close involvement of the States of the affected geographical regions.69 This has already happened in several instances, beginning with the “Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP)”70 adopted in 2004, to which 19 States are party.71 Its central feature is the establishment in 2006 of an Information Sharing Centre in Singapore. The Strait of Malacca which a few years ago was the world’s foremost piracy hotspot has in recent times seen a notable decline in attacks against shipping.72 In 2008, the Maritime Organization of West and Central Africa (MOWCA) established an institutional framework for close cooperation regarding the suppression of piracy and armed robbery, terrorism at sea, drug trafficking, etc. The Organization counts twenty-five member states, five of which are landlocked, underlining that all States, irrespective of their geographic location, have a stake in maritime security.73 In the same year, the Member States of the Caribbean Community (CARICOM) concluded the Maritime and Airspace Security Cooperation Agreement which expressly refers to piracy as well as hijacking, terrorism, illicit trafficking in narcotic drugs, etc. as an activity likely

c­ ountries are: Benin, Cameroon, Equatorial Guinea, Gabon, Nigeria, Sâo Tomé and Principe and Togo. 69  Commissioner J. Borg, “Combating Piracy: Strength in Unity”, Address at the Seminar on Piracy and Armed Robbery Against Shipping: To Prevent, Deter, Protect and Fight Against an ACTUAL Threat, p. 3 (2009), available at: http://ec.europa.eu/transport/maritime/ events/doc/2009_01_21_piracy/dr_borg_closing.pdf. 70  IMO, “Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia” (ReCAAP), adopted on 11 November 2004, entered into force on 4 September 2006, 44 ILM, p. 829 (2005); available at: http://www.recaap.org/Portals/0/ docs/About%20ReCAAP%20ISC/ReCAAP%20Agreement.pdf. 71  These States are: Australia, Bangladesh, Brunei Darussalam, Cambodia, China, Denmark, India, Japan, Korea, Laos, Myanmar, the Netherlands, Norway, the Philippines, Singapore, Sri Lanka, Thailand, United Kingdom and Viet Nam., available at: http://www.recaap.org/ AboutReCAAPISC.aspx. 72  See Guilfoyle, op. cit., p. 619. 73  See J. Kraska, “Coalition Strategy and the Pirates of the Gulf of Aden and the Red Sea”, 28/3 Comparative Strategy, (2009): 204–205.

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to compromise the security of a State Party and also promotes cooperation concerning law enforcement operations.74 As a result of the endeavours of the IMO regarding Somali piracy, a Code of Conduct75 concerning the Repression of Piracy and Armed Robbery against Ships in the Western Indian Ocean and the Gulf of Aden was adopted in Djibouti in 2009 which has been signed by 20 States.76 The Code promotes the implementation of those aspects of resolutions of the Security Council and the UN General Assembly which fall within the competence of IMO. It provides, inter alia, for information sharing, interdicting ships suspected in engaging in acts of piracy or armed robbery against ships, the apprehension and prosecution of suspects. The signatory States have further agreed to review their national legislation regarding piracy and armed robbery against ships and to make adequate provisions for the exercise of jurisdiction and the prosecution of offenders. As a follow-up to the relevant Security Council resolutions, the Heads of State and Government of Central and West Africa States in June 2013 adopted a Declaration on Maritime Safety and Security in their Common Maritime Domain.77 On this occasion a Memorandum of Understanding was also concluded among the Economic Community of Central African States (ECCAS), the Economic Community of West African States (ECOWAS) and the Gulf of Guinea Commission (GGC) on Maritime Safety and Security in Central and West Africa.78 Furthermore, a Code of Conduct Concerning the Prevention of Piracy, Armed Robbery against Ships and Illicit Maritime Activity in West

74  Text of the Agreement available at: http://www.caricom.org/jsp/secretariat/legal_instru ments/agreement_maritime_airspace_security_cooperation.pdf. 75  IMO, “Press Briefing, High-level meeting in Djibouti adopts a Code of Conduct to repress acts of piracy and armed robbery against ships”, International Maritime Organization Briefing, available at: http://www.imo.org/blast/mainframe.asp?topic_id=1773&doc_id=10933. 76  These States are: Comoros, Djibouti, Egypt, Eritrea, Ethiopia, Jordan, Kenya, Madagascar, Maldives, Mauritius, Mozambique, Oman, Saudi Arabia, Seychelles, Somalia, South Africa, Sudan, United Arab Emirates, United Republic of Tanzania, Yemen, available at: http://www.imo.org/OurWork/Security/PIU/Pages/Signatory-States.aspx. 77  Joint Summit on the regional strategy to combat piracy, armed robbery, and other illicit activities committed at sea in the Gulf of Guinea, Yaoundé, Republic of Cameroon, June 24–25, 2013, available at: https://www.prc.cm/files/c0/1f/55/4e7428fc298ef58f6bdf 68869c390ce7.pdf. 78  See “Cotonou to Host Ministerial Conference on Gulf of Guinea Maritime Security”, ECOWAS, Press Release No. 066/2013, available at: http://news.ecowas.int/presseshow .php?nb=066&lang=en&annee=2013 (last visited 30 September 2013).

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and Central Africa was signed by 25 States of the region.79 This Code, which incorporated many elements of the Djibouti Code of Conduct also provides for cooperation ‘to the fullest possible extent’ in the prevention and repression of piracy and armed robbery against ships, transnational organized crime in the maritime domain, maritime terrorism, illegal, unreported and unregulated (IUU) fishing and other illegal activities.80

Armed Personnel Aboard Merchant Vessels

In an effort to stem the tide of piracy, the question of the carriage of armed security personnel or the use of military or law enforcement officials, duly authorized by the government of the flag State to carry firearms for the security of the ship, has for some time been under discussion. The MSC considered that the carriage of such personnel should be subject to flag State legislation and policies and is a matter for the flag State to authorize, in consultation with shipowners, companies and ship operators. It further expressed the view that flag States should, however, strongly discourage the carrying and use of firearms by seafarers for personal protection or for the protection of the ship.81 The deployment of military personnel on board merchant vessels constitutes a ‘recommended option’ in accordance with the IMO “Best Management Practices for Protection Against Somalia Based Piracy,”82 which have had a major effect in reducing the number of successful hijackings in that region. 79  These States are Angola, Benin, Burkina Faso, Burundi, Cameroon, Cape Verde, the Central African Republic, Chad, Congo, Côte d’Ivoire, the Democratic Republic of the Congo, Equatorial Guinea, Gabon, the Gambia, Ghana, Guinea, Guinea Bissau, Liberia, Mali, Niger, Nigeria, Sao Tome and Principe, Senegal, Sierra Leone, and Togo, available at: https://www.prc.cm/files/f7/26/ec/8acea8ec3a597473a76bd03c76140019.pdf (last visited 7 October 2013). 80   IMO Press Briefing June 26, 2013, available at: http://www.imo.org/MediaCentre/ PressBriefings/Pages/23-westandcentralafricacode.aspx (last visited 13 September 2013). 81  See IMO-MSC, “Report on the 86th Session”, MSC 86/26/Add.1, 25 June 2005, para. 18.3, p. 85, available at: http://www.rina.org.uk/hres/msc%2086_26%20report.pdf (last visited 2 October 2013). 82  IMO-MSC, “Piracy and Armed Robbery against Ships in Waters off the Coast of Somalia— Best Management Practices for Protection against Somalia Based Piracy”, MSC 1/Circ. 1339 (2011), 14 September 2011, available at: http://www.imo.org/OurWork/Security/ SecDocs/Documents/Piracy/MSC.1-Circ.1339.pdf (last visited 23 September 2013). The Best Management Practices are being regularly updated, the most recent version was adopted in August 2011.

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The deployment of such personnel does, however, not transform a merchant vessel into a warship as is clear from the definition of ‘warship’ in Article 29 UNCLOS.83 Although, only a warship or another government ship may seize a ship on suspicion of piracy84 military or law enforcement personnel on board merchant vessels may nevertheless take ‘police action’ against suspected pirates on the basis of self-defence and—in the case of Somali piracy—the relevant Security Council resolutions. Such actions are not governed by international law, but by the national law of the dispatching State. The question arises whether such personnel also has the right to detain suspected pirates. It has rightly been pointed out that the answer should be positive, either on the basis of an authorization under national law or at least on the basis of a right of civil arrest found in many national legal systems.85 Besides the use of military or law enforcement officials there has in recent years been a significant increase in reliance by shipping companies on private military and security companies aboard merchant ships for protection against pirate attacks. The MSC has pointed out that the “carriage of such personnel and their firearms and security-related equipment is subject to flag State legislation and policies and it is a matter for flag States to determine if and under which conditions this will be authorized”.86 The opinion has also been expressed that in view of coastal States full sovereignty over their territorial sea privately armed guards should only be used in places that are not subject to the jurisdiction of any State.87 83  According to Article 29 UNCLOS ‘warship’ means a ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline. 84  Article 107 UNCLOS defines ships and aircraft which are entitled to seize on account of piracy and Article 110 regulates the right of a warship to interfere with and to board a foreign ship on the high seas, stating that there must be a reasonable ground for suspecting that the ship is engaged in piracy. 85  R. Wolfrum, “Military Vessel Protection Detachments under National and International Law” (on file with author) (2013): 6. 86  IMO-MSC, “Interim Recommendations for Flag States Regarding the Use of Privately Contracted Armed Security Personnel on Board Ships in the High Risk Area”, MSC.1/ Circ.1406/Rev.1, 16 September 2011, annex, p. 1; see also “Interim Recommendations for Port and Coastal States Regarding the Use of Privately Contracted Armed Security Personnel on Board Ships in the High Risk Area”, MSC.1./Circ.1408, 16 September 2011. 87  See IMO, Legal Committee (LEG)—100th session, 15 to 19 April 2013, 2, available at: http://www.imo.org/MediaCentre/HotTopics/LEG100/Pages/default.aspx (last visited 26 September 2013).

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In any case, the deployment of privately contracted security personnel is not uncontroversial. On the one hand it has been argued that private armed security has become an operational necessity for a shipping industry plagued by piracy, on the other, it has been stated that the deployment of such personnel aboard commercial vessels would inevitably push maritime shipping into increasingly violent confrontations with pirates. It is, however, a fact that the inability of the naval forces to fully counter the expansion of pirate operations, in particular in view of the vastness of the area to be covered, the commercial shipping industry has increasingly turned to private security forces to protect its vessels transiting the Gulf of Aden.88 A similar trend can be discerned with respect to the growing piracy threat off the coast of West Africa. It has been pointed out that no vessel with armed security on board has ever fallen victim to a successful hijacking.89 The deployment of private armed guards on board merchant vessels even more so raises the issue of their power to detain suspected pirates. It is rather obvious that, in principle, these guards have no such power, neither under national nor international law. It nevertheless seems that under certain circumstances they could likewise carry out civil arrests. Furthermore, it should be noted that the master of a ship has the authority to detain persons carrying out illegal activities on board; a certain parallel could be drawn with respect to the detention of stowaways.90 In view of the lack of international rules or standards regarding the deployment of privately contracted armed security personnel, the MSC has elaborated Interim Guidance to private maritime security companies providing such services.91 According to that—not legally ­binding—guidance, private armed security personnel should only use force strictly necessary and reasonable in the circumstances for the protection of persons on board and of the ship against unlawful attack. Firearms should only be used against persons in self-defence or in defence of others. Furthermore, it should be made clear that at all times the master of the ship remains in 88  Joel Christopher Coito, “Pirates vs. Private Security: Commercial Shipping, The Montreux Document, And the Battle for The Gulf of Aden”, 101 Cal L. Rev. (2013): 176–177. 89  See Lloyd’s List—Regulation—Green for go?, 28 March 2013, available at: http://www .lloydslist.com/ll/sector/regulation/article420036.ece (last visited 2 October 2013). 90  See “Piracy: International deliberations on legal issues continue, Contact Group on Piracy off the Coast of Somalia”, BIMCO Bulletin, vol. 107 (2012): 5. 91  IMO-MSC, “Interim Guidance to Private Maritime Security Companies Providing Privately Contracted Armed Security Personnel on Board Ships in the High Risk Area”, MSC.1/Circ.1443, 25 May 2012, 9, available at: http://www.imo.org/OurWork/Security/ SecDocs/Documents/Piracy/MSC.1-Circ.1443.pdf.

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c­ ommand and is the overriding authority on board.92 The role of the IMO regarding privately contracted armed security personnel on board ships in high-risk areas has been expressly recognized by the Security Council.93

Piracy and Human Rights

The fight against modern-day piracy is bound to be substantially different from earlier times, in particular since the adoption of the Universal Declaration of Human Rights in 1948, when a whole body of human rights law began to develop on a national, regional and universal level which also applies to suspected pirates without any limitations. The international community as well as individual States have therefore been faced with the problem of harmonizing efficient action against piracy and armed robbery against ships with this evolution of international and national law. This development was also taken into account by the Security Council in Resolution 1851 which, inter alia, requires that any measure undertaken in Somali territory must be “consistent with applicable international humanitarian and human rights law.” Under international humanitarian law civilians may not be specifically targeted except in immediate self-defence and pirates, even if equipped with military weapons, are not combatants but civilians.94 International humanitarian law is, however, only applicable during armed conflict and no government participating in counter piracy operations considers the laws of war applicable to pirates.95 The use of force against them can 92   Id., p. 7; see also “Revised Interim Guidance to Shipowners, Ship Operators and Shipmasters on the Use of Privately Contracted Armed Security Personnel on Board Ships in the High Risk Area”, MSC.1/Circ.1405/Rev.2, 25 May 2012, Annex, 7, available at: http:// www.imo.org/OurWork/Security/PiracyArmedRobbery/Guidance/Documents/MSC.1Circ.1405-Rev2.pdf. 93  UN Security Council Resolution 2077 (2012), 21 November 2012, op. para. 31, available at: http://www.un.org/News/Press/docs/2012/sc10824.doc.htm (last visited 7 October 2013). 94  See M. Bahar, “Attaining Optimal Deterrence at Sea: A Legal and Strategic Theory of Naval Anti-Piracy Operations”, 40/1, Vanderbilt Journal of Transnational Law (2007): 6; see also C. Laly-Chevalier, “Lutte contre la piraterie maritime et droits de l’homme”, 42/1 Revue belge de droit international (2009): 23. 95  D. Guilfoyle, “The Laws of War and the Fight Against Somali Piracy: Combatants or Criminals?”, Melbourne Journal of International Law, vol. 11 (2010): 157. The Security Council in later resolutions no longer referred to ‘humanitarian law’, but to ‘applicable international human rights law’, see Security Council Resolution 2077 (2012) (fn. 35), op. para. 16.

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rather be assimilated to the exercise of the power to engage in police action.96 In that context there seems to be a consensus of the international community that any use of force must be a necessary last resort in order to safeguard the security of persons subjected to attack or imminent attack as well as proportionate, that is commensurate with the perception of the level of the threat posed.97 Self-defence against armed attack or threat thereof thus also seems to be a guiding principle of States the navies of which are engaged in the antipiracy efforts off the coast of Somalia.98 Whenever practicable, the use of force should be preceded by warning shots, in particular as innocent fishermen have on several occasions been killed after having been mistakenly identified as pirates. Such a mistake may be all the easier to make as fishermen for self-defence purposes against pirates often arm themselves and also use their weapons for the signalling of merchant ships on a collision course with fishing nets.99 As the International Tribunal for the Law of the Sea (ITLOS) emphasized in a case before it, the use of force “must not go beyond what is reasonable and necessary in the circumstances” and “considerations of humanity must apply in the law of the sea, as they do in other areas of international law”.100 Extreme caution is thus necessary when judging if a pirate attack is taking place or imminent. Human rights implications have in a great number of instances prompted States that had seized pirates to set them free or not to detain them at all, as also noted with concern by the Security Council.101 These States, in particular parties to the European Convention on Human Rights,102 are obviously concerned that pirates might request asylum in the respective countries 96  See Treves, op. cit., 413; see also Blanco-Bazán, op. cit., 4. 97  See Jakob Paaske Larsen, “To shoot or not to shoot, that’s the question!”, BIMCO Bulletin 2012, Vol. 107 #5 (2012): 66. 98  Treves, op. cit., 413. 99  Id., p. 67. 100  M/V Saiga (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment of July 1, 1999, in: International Tribunal for the Law of the Sea, Reports of Judgments, Advisory Opinions and Orders, Volume 3 (The Hague, Boston, London: Kluwer Law International), para. 155 (1999). 101  See “Convention for the Protection of Human Rights and Fundamental Freedoms”, 4 November 1950, inter alia amended by Protocol No. 11, available at: http://conventions .coe.int/Treaty/en/Treaties/Html/005.htm (last visited 26 September 2013); see also LalyChevalier (fn. 98), p. 49. 102  “UN Security Council Resolution 1976” (2011), 11 April 2011, preambular para. 15, available at: http://oceansbeyondpiracy.org/sites/default/files/unsc_res_1976_2011.pdf (last visited 8 October 2013). Over 60% of the pirates apprehended under Operation Atalanta are

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after having served their sentence as they most probably would claim to risk torture or even the death penalty if returned to Somalia.103 Furthermore, it cannot be excluded that pirates after having been granted asylum might also ask for family reunion on the basis of that Convention. The question has also arisen how the legal requirement of bringing an arrested or detained person promptly before a judge can be met in the case of a prolonged detention of a pirate suspect on a naval vessel.104 According to the jurisprudence under international human rights instruments the period of delay before a detainee is brought before a judicial officer must not exceed a few days. This requirement, of course, raises practical difficulties in the context of detention on a naval vessel patrolling off the coast of Somalia or elsewhere.105 In order to remedy this situation some States have presented apprehended pirates before a judge via video link or ensured the presence of a judge on their vessels in order to validate a further detention on board.106 There is no doubt that ideally, pirate suspects should be tried in the country where they originated. In the case of Somalia this has in the past, however, been difficult, if not altogether impossible. Flag States of attacked vessels could, of course, prosecute the pirates, but ships transiting that region often fly flags of far away countries, so this is hardly a realistic option. The prevailing view is therefore that pirate suspects should, as far as possible, be tried at least in their own geographical region where they should also serve their s­ entence. released; see Non-Paper for the Creation of a Special Somali Court, Relocated to a State in the Region, with International Support (on file with author). 103  See id., Art. 3: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” See also the “United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”, 10 December 1984, 1465 UNTS 85, Art. 3(1): “No State Party shall expel, return (“refouler”) or extradite a person to another State where there are actual or substantial grounds for believing that he would be in danger of being subjected to torture.” 104  See id., European Convention on Human Rights, Art. 5(3): “Everyone arrested or detained in accordance with the provisions [. . .] of this article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial [. . .].”; see also Art. 6(1): “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time and by an independent and impartial tribunal established by law.” 105  See United Nations Contact Group on Piracy off the Coast of Somalia, Working Group 2 on Legal Issues, 21 May 2010, para. 27 (on file with author). 106  See United Nations Contact Group on Piracy off the Coast of Somalia, Working Group 2 on Legal Issues, 17 and 18 September 2012, Chairman’s Conclusions, p. 5 (on file with author).

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A number of agreements have thus been concluded between flag States and countries in the vicinity of Somalia, defining procedures for the detention, transfer and prosecution of persons suspected of having committed acts of piracy. These agreements, in general, provide that a transfer of suspected pirates may only take place on condition of humane treatment and that no one will be subjected to the death penalty, to torture or to any cruel, inhuman or degrading treatment or punishment and that any transferred person will be brought promptly before a judge and is entitled to trial within a reasonable time or to release.107

An International Mechanism for Combating Piracy?

The surge of piracy off the coast of Somalia has given rise to the question whether part of the legal response of the international community should be the establishment of an international mechanism for combating this phenomenon. In this context it has been suggested that the statutes of existing courts and tribunals, including ITLOS, could be amended in order to allow for prosecution of suspected pirates. Amending any of these statutes on a treaty basis would, however, require quite a number of years and would thus not constitute an efficient remedy for the current situation in Somalia. In addition, there have been no indications that the States parties to the multilateral conventions on which these courts or tribunals are based would be willing to consider such a course of action. Further suggestions put forth included the creation of an entirely new international tribunal on the basis of a Security Council resolution following the pattern of the international criminal tribunals for the former Yugoslavia and Rwanda, of a hybrid tribunal following the model of the Special Court for Sierra Leone and the Special Tribunal for Lebanon, or the establishment of an

107  See Exchange of Letters between the European Union and the Government of Kenya on the Conditions and Modalities for the Transfer of Persons Suspected of Having Committed Acts of Piracy and Detained by the European Union-led Naval Force (EUNAVFOR), and Seized Property in the Possession of EUNAVFOR, from EUNAVFOR to Kenya and for their Treatment after such Transfer, 6 March 2009, Annex, provisions, paras 3(a), 3(b), 3(c), 2009 OJ (L 79) 51, available at: http://ec.europa.eu/world/agreements/prepareCreate TreatiesWorkspace/treatiesGeneralData.do?step=0&redirect=true&treatyId=7883 (last visited 8 October 2013).

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African regional anti-piracy court based upon a multilateral agreement among regional States.108 The Report of the UN Secretary-General pursuant to a request by the Security Council under Resolution 1918 (2010) lists several options in this respect which essentially correspond to these suggestions. In this report, however, first of all, reference is made to UN assistance to build capacity of regional States for the prosecution and imprisonment of pirates, an option that had already achieved some success.109 In connection with the idea of establishing an international tribunal to deal with suspected pirates, it should not be overlooked that such tribunals depend on State cooperation for the enforcement of sentences since they do not have long-term prison facilities, and the States in whose territory they are based do not necessarily want the prisoners to serve their sentence there.110 The conclusion of sentence enforcement agreements with third States has in practice been difficult and relatively few States have been willing to enter into such agreements.111 In light of this situation, the Special Adviser, appointed by the SecretaryGeneral, in his report to the Security Council, rather than advocating the creation of an international mechanism, favoured the establishment of a court system comprising specialized anti-piracy courts in the regions of Puntland and Somaliland and as well as an extra-territorial Somali specialized court that could be based in Arusha, Tanzania.112 The various Somali authorities are, however, of the view that no such additional specialized courts within Somalia should be established pursuant to these recommendations and 108  See United Nations Contact Group on Piracy Off the Coast of Somalia: Working Group 2 on Legal Issues, Discussion Paper on Prosecution of Pirates: An International Mechanism?, 3 March 2009, pp. 2, 3 (on file with author). 109  Report of the Secretary-General on possible options to further the aim of prosecuting and imprisoning persons responsible for acts of piracy and armed robbery at sea off the coast of Somalia, S//2010/394, 26 July 2010, Summary, pp. 2, 3, para. 56, available at: http://oceansbeyondpiracy.org/sites/default/files/report_of_the_secretary_general_ july_26_2010.pdf (last visited 7 October 2013). 110  Id., para. 29. 111  United Nations Contact Group on Piracy off the Coast of Somalia, 26–27 August 2009, Factual Statement by the United Nations Office of Legal Affairs on international tribunals, para. 10 (on file with author). 112  See UN Security Council, Letter dated 24 January 2011 from the Secretary-General to the President of the Security Council, S/2011/30, 25 January 2011, Report of the Special Adviser to the Secretary-General on Legal Issues Related to Piracy off the Coast of Somalia, annex, paras. 116–118, available at: http://cil.nus.edu.sg/wp/wp-content/uploads/2010/10/Lang_ report_S-2011-301.pdf (last visited 7 October 2013).

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rather a­ dvocate the strengthening of existing court structures.113 They, furthermore, do not favour the establishment of a Somali court outside the territory of Somalia, preferring any assistance for new courts to be implemented within the country.114 The ongoing efforts with respect to the prosecution and punishment of suspected pirates rather than focusing on the establishment of an international mechanism or the creation of specialized anti-piracy courts115 thus concentrate on how best to build and improve the respective capacities in the affected region with the assistance of the United Nations. In this connection the Viennabased United Nations Office on Drugs and Crime (UNODC), supported in its endeavours by the European Union, is playing an important role.116 Already in 2009, the UNODC counter-piracy programme (CPP) was established which is currently operating in six countries in the Somali Basin region—Kenya, Seychelles, Mauritius, Tanzania, Maldives and Somalia. This programme has been proven effective in supporting efforts of these countries to detain and prosecute piracy suspects according to international standards of rule of law and respect for human rights. The CCP focuses on fair and efficient trials and humane and secure imprisonment in regional state-of-the-art correctional facilities. These efforts have already had considerable success across the criminal justice sector in that region.117

113  UN Security Council, Report of the Secretary-General on the modalities for the establishment of specialized Somali anti-piracy courts, S/2011//360, 15 June 2011, paras. 54–55, available at: http://unpos.unmissions.org/Portals/UNPOS/Repository%20UNPOS/S2011–360%20(15Jun2011)%20Piracy.pdf (last visited 8 October 2013). 114  UN Security Council, Report of the Secretary-General on specialized anti-piracy courts in Somalia and other States in the region, S/2012/50, 20 January 2012, para. 38, available at: http://oceansbeyondpiracy.org/sites/default/files/somalia_s_2012_50.pdf (last visited 8 October 2013). 115  The term “specialized anti-piracy court” refers to a court operating under national law, with international assistance and with a focus on the prosecution of piracy offenses; see id. para. 3. 116  An international trust fund to support Initiatives of States Countering Piracy Off the Coast of Somalia was established on 27 January 2010; see Trust Fund website, available at: http://www.unodc.org/easternafrica/en/piracy/index.html (last visited 8 October 2013). 117  United Nations Office on Drugs and Crime (UNODC), Counter Piracy Programme, Support to the Trial and Related Treatment of Piracy Suspects, available at: http://www .unodc.org/unodc/en/piracy/index.html (last visited 26 September 2013).

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Conclusion The resurgence of piracy and armed robbery at sea threatens world trade and international security and has led to action by the international community as a whole, States of the affected regions as well as private operators. Since 2006 the international focus on piracy has shifted from the Strait of Malacca to the coast off Somalia. It has been estimated that the total number of active Somali pirates is about 3,000 of whom over 1,200 have already been or are being prosecuted in 21 countries around the world.118 This fact and the subsequent transfer of convicted pirates to prisons in Somalia appears to be having a preventive effect regarding the number of pirate attacks in that region. It has, however, also been pointed out that the falling trend of such attacks off the coast of Somalia could easily be reversed if the causes of piracy, such as instability, lawlessness and ineffective governance are not addressed quickly.119 The Security Council, in condemning all piratical activities in the waters off Somalia, stressed the need for a comprehensive response by the international community to repress such activities and to tackle their underlying causes, which include the ongoing instability in Somalia. At the same time, it underlined the primary responsibility of Somali authorities in the fight against piracy and armed robbery at sea in that area. These authorities were also urged to implement a complete set of counter-piracy laws without further delay with assistance from the Secretary-General and relevant UN entities, to patrol their territorial waters and to detain and prosecute pirates.120 At present, international attention with respect to piracy is gradually shifting to West Africa in view of the growing threat in that region. This development has prompted the countries concerned to agree on a series of countermeasures. Over the past years new approaches based on multilateral cooperation have thus been devised to tackle the ancient issue of piracy while in previous centuries plagued by this phenomenon such cooperation among States 118  UNODC, Counter Piracy Programme, Support to the Trial and Related Treatment of Piracy Suspects, Foreword, available at: http://www.unodc.org/unodc/en/piracy/index .html (last visited 26 September 2013). 119  ICC-IMB, Piracy and Armed Robbery against Ships, Report for the Period 1 January– 31 December 2012, p. 34, available at: https://www.google.de/url?sa=t&rct=j&q=&esrc=s &source=web&cd=5&ved=0CEQQFjAE&url=http%3A%2F%2Fwww.kvnr.nl%2F stream%2F2012-annual-imb-piracy-report&ei=XLhTUpfsDoe-0QXNrIGAAQ&usg=AFQ jCNETS8AGzONcPEsX8mCapOQ7-rV5gw&bvm=bv.53537100,d.d2k (last visited 8 October 2013). 120  UN Security Council Resolution 2077 (2012) (fn. 35), op. paras. 2 to 6.

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was ­generally lacking. The response to piratical activities is, however, still hampered by various factors. These include legislative gaps, as States still lack modern anti-piracy legislation, not having implemented their respective obligations under UNCLOS, as also repeatedly noted with concern by the Security Council,121 the need to harmonize measures against piracy and armed robbery against ships with international human rights instruments as well as uncertainty regarding the extent to which warships can enforce coercive measures in order to suppress a common crime like piracy. The conclusion of a special anti-piracy convention regulating the manner in which piracy may be suppressed and the application of the principle of universal jurisdiction might certainly be useful, it seems however, highly doubtful whether the international community would be willing to embark on such a venture.122 It is essential that the States in the regions primarily affected by the rise of piratical activities receive outside assistance to strengthen their maritime capacities in order to be able to better control the waters off their coasts as well as to enhance the functioning of their judicial systems in line with modern human rights standards and to improve and expand their correctional facilities. There is no doubt that piracy is not only an issue of rule of law and security but also of social and economic development.123 This is true for all geographic regions plagued by this phenomenon. To provide increased assistance in this respect is a major task of the international community, requiring, however, sustained efforts over a rather long period of time. As regards the more immediate future, it should be borne in mind that pirates will not really be deterred by an increased presence of naval forces or armed guards aboard merchant vessels if they know that in the end there is no law to judge them.124 121  See UN Security Council Resolution 1918 (2010), 27 April 2010, preambular para. 14, available at: http://www.un.org/docs/sc/unsc_resolutions10.htm (last visited 8 October 2013); Security Council Resolution 2014 (2011), 21 October 2011, preambular para. 12, available at: http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4 FF96FF9%7D/YEMEN%20S%20RES%202014.pdf (last visited 8 October 2013). 122  Tuerk, op. cit., 41. The Ukraine has circulated a Draft Convention at the 65th Session of the UN General Assembly entitled “Comprehensive Convention on the Suppression of Acts of Piracy at Sea”. The purpose of such a Convention would be “to facilitate the cooperation of States in a more effective prevention of piracy as one of the types of transnational organized crime and in fight against it”. The draft also proposes the establishment of a Special Court for Maritime Piracy, the expenses for which are to be charged to the regular budget of the United Nations. 123  See Fedotov, Message of 27 September 2012 (fn. 51). 124  See Bl anco-Bazán, op. cit., 270.

PART 9 Recent Case Law on Maritime Delimitation

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Chapter 28

Recent Judicial Decisions Concerning Maritime Delimitation David H. Anderson Hugo Caminos is well-known as an international lawyer, diplomat, teacher, writer and editor, and, above all, as a judge of the International Tribunal for the Law of the Sea (ITLOS or Tribunal) in Hamburg. For many years, he served as the Tribunal’s senior judge and his contributions to the deliberations were always marked with wisdom and experience. Earlier, during the 1970s, he was a member of the Secretariat of the Third UN Conference on the Law of the Sea (Third Conference), charged with many important issues including maritime delimitation. To mark his retirement from the Tribunal, this paper will review the role of judges in two broad areas. The first is whether, after the prolonged controversy during the Third Conference, courts and tribunals have been applying successfully the provisions on maritime delimitation set out in the UN Convention on the Law of the Sea (Convention). The second is whether the fact that Part XV of the Convention provides for multiple courts and tribunals has resulted in any inconsistency in decision-making or even fragmentation of the law relating to maritime delimitation. As is well-known, certain fears were expressed at the time of the Convention’s entry into force about the risk of inconsistent or even conflicting decisions being handed down by the different judicial bodies, resulting in fragmentation of the law. How far have these fears been shown to have been justified by recent decisions in cases concerning maritime delimitation? Starting with the Grisbadarna case in 1909, at least 22 maritime boundary cases have been decided by international courts and tribunals, including ten decisions since the Convention entered into force in 1994. At the time of writing, there are several pending cases.1 Space does not permit a detailed examination of the many different aspects of every case. In the interests of clarity, the delimitation of the territorial sea is reviewed in section I, that of the exclusive economic zone (EEZ) and continental shelf within the 200 nautical 1  On 28 February 2014, the pending cases include Bangladesh v. India (being deliberated by a tribunal established under Annex VII of the Convention); the ad hoc arbitration between Croatia and Slovenia; and recently-instituted cases from Central America—Nicaragua v. Colombia and Costa Rica v. Nicaragua. © koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004283787_029

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mile (nm) limit in section II, and that of the continental shelf beyond 200 nm in Section III.

Territorial Sea

By way of introduction, it may be recalled that article 15 of the Convention provides as follows— Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. The above provision does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial sea of the two States in a way that is at variance therewith. This provision, based closely on article 12 of the Convention on the Territorial Sea and the Contiguous Zone of 1958, was adopted with little controversy at the Third Conference. The provision, notably the reference to ‘special circumstances’ in the second sentence, has been considered by different types of courts and tribunals in recent years. In Guyana v. Suriname, an ad hoc tribunal constituted under Annex VII of the Convention and presided over by Judge Nelson was charged with delimiting the territorial sea, as well as the exclusive economic zone (EEZ)/continental shelf, between the parties. Applying article 15, the tribunal found that there existed a ‘special circumstance’ because the boundary had to be determined “from a point at sea fixed by historical arrangements of an unusual nature.” Instead of drawing an equidistance line between the two coasts, the tribunal drew a straight line from that point to the start of the EEZ boundary. The tribunal took navigational considerations into account and appears to have reached a pragmatic solution to a difficult situation left by history.2 The International Court of Justice (Court) applied article 15 in the case concerning the Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras). The geographical and geomorphological factors are unusual in that there exist several small mud islands in the mouth of the border river, the Rio Coco. These islands were “the nearest 2  47 ILM (2008): 164, at para. 323.

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points on the baselines” for constructing an equidistance line across the territorial sea. Given the configuration of the two relevant coasts, any base points at the mouth of the Rio Coco would steer an equidistance line for a considerable distance. However, the islands were very small, transient phenomena and sovereignty over them was indeterminate. As a result, the exact terminus of the terrestrial boundary at the time of the judgment was uncertain. Faced with these problems in drawing any sort of equidistance line, the Court stated: Nothing in the wording of Article 15 suggests that geomorphological problems are per se precluded from being ‘special circumstances’ within the meaning of the exception, nor that such ‘special circumstances’ may only be used as a corrective element to a line already drawn.3 The Court looked at the preparatory work by the International Law Commission (in formulating proposals that led to the adoption by the First UN Conference on the Law of the Sea of article 12 of the Convention on the Territorial Sea and the Contiguous Zone) in order to confirm its interpretation of article 15, given the strong similarity between the formulation of the two provisions. Having confirmed its interpretation, the Court decided in the circumstances to delimit the territorial sea by first drawing two straight lines, representing the two coastal fronts, from a starting point just off the mouth of the river and then bisecting the (reflex) angle formed by the two lines. In other words, the Court, having found ‘special circumstances’ to exist, adopted an entirely different method of delimitation—using the bisector of the angle between two coastal fronts to form the maritime boundary. Again, a pragmatic solution was found to a difficult situation, produced this time by natural phenomena. In the same case, when delimiting the territorial sea between some off-shore islands found to be under the sovereignty of Honduras or Nicaragua, the Court followed its two-stage approach to the application of article 15 adopted in the case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar/Bahrain),4 that is to say the Court first drew a provisional equidistance line and then checked whether there were ‘special circumstances’. The Court decided that there were no special circumstances and determined equidistance boundaries between them. As will be seen, this twostage methodology has some similarities with that adopted in respect of the EEZ/continental shelf.

3  ICJ Reports (2007) (II): 759, para. 280. 4  ICJ Reports (2001): 40.

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In the case concerning the Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), the ITLOS was called upon to delimit the territorial sea between two adjacent States. Their terrestrial boundary terminates at a fixed point agreed between the two States and just to the west there is St Martin’s Island, belonging to Bangladesh and inhabited by a settled community, including many fishers. This island in a sense extends southwards the line of the mainland coast of Bangladesh. It is also situated in front of the mainland coast of Myanmar. The Tribunal rejected Myanmar’s contention that this island represented ‘special circumstances’ within the meaning of article 15 by reason of its position. In delimiting the territorial sea, the Tribunal decided to give full effect to the St Martin’s Island and drew an equidistance line between base points on the mainland coast of Myanmar and points on the east coast of St Martin’s Island.5 As will be seen, St Martin’s Island was treated differently in the delimitation of the EEZ/continental shelf. To sum up, article 15 has been applied by an Annex VII tribunal, by the Court in more than one case, and by the Tribunal. These three different judicial bodies have adopted the pragmatic approaches to its interpretation and application.

Exclusive Economic Zone/Continental Shelf within 200 Nautical Miles

It may be recalled that article 74, paragraph 1, of the Convention reads as follows: The delimitation of the exclusive economic zone between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution. Article 83, paragraph 1, makes the same provision in respect of the delimitation of the continental shelf. This common paragraph 1 was viewed by some commentators as a meagre result from such extensive negotiations: some even questioned its value as part of the Convention.6 The agreed formula contains 5  ITLOS Reports (2012): 4 para. 152 to 166. 6  See for instance: Lucius Caflisch, “The Delimitation of Marine Spaces between States with Opposite or Adjacent Coasts”, in A Handbook of the New Law of the Sea, vol. 1, ed. René-Jean

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no detailed rules or methods of delimitation. However, the many interested Delegations, the President, the Collegium and the Secretariat had expended many hours and tried many formulas in efforts to find a consensus on more detailed provisions. Their efforts proved to be in vain, such was the depth of the divisions among delegations. Why was this so? The knowledge that there were outstanding bilateral negotiations led many delegations to adopt a cautious approach and this meant that no wider consensus could be reached at the multilateral level. Unlike article 15, article 74/83, paragraph 1, has no antecedents in the Geneva Conventions of 1958, apart from the element of agreement found in article 6 of the Convention on the Continental Shelf. Clearly, the common paragraph 1 leaves a wide discretion to those involved in maritime delimitation, whether they are acting as negotiators, conciliators or adjudicators. Common paragraph 2 provides for resort to the procedures in Part XV, while common paragraph 3 calls for States to make efforts to enter into provisional arrangements of a practical nature and to exercise restraint pending agreement.7 The absence from common paragraph 1 of substantive rules on the principles or methods of delimitation applicable to the EEZ and the continental shelf meant that courts and tribunals were faced with delicate problems from 1982 onwards and particularly once the Convention had entered into force and acquired general support towards the turn of the century. As the Court stated in 1985, “[t]he Convention sets a goal to be achieved, but is silent as to the method to be followed to achieve it. It restricts itself to setting a standard, and it is left to States themselves, or to the courts, to endow this standard with specific content.”8 Although paragraph 1 refers only to ‘agreement’ between States following negotiations, the wording has been interpreted by courts and tribunals to apply also to adjudication. Upon its entry into force and the growth in the number of States Parties, article 83 gradually superseded article 6 of the Convention on the Continental Shelf, leaving only the ‘equitable solution’ as an aim, objective and guide.

Dupuy & Daniel Vignes, (Leiden: Martinus Nijhoff Publishers, 1991), 425, at 495 (‘virtually useless’); Edward Duncan Brown, International Law of the Sea, vol. 1 (Dartmouth, 1994) at 159 (‘. . . difficult to see that any great purpose is served by this provision.’). 7  For a survey of common para. 3, see David Anderson & Youri van Logchem, “Rights and Obligations in Areas of Overlapping Maritime Claims”, in The South China Sea Disputes and the Law of the Sea, ed. S. Jayakumar, Tommy Koh & Robert Beckman (Northampton: Edward Elgar Publishing, forthcoming). 8  Libya/Malta case, ICJ Reports (1985): 13, para. 28.

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Equity does not provide a method of delimitation: the ‘equitable solution’ represents an aim that should be kept in mind in effecting the delimitation.9 In an earlier finding in regard to the delimitation of the continental shelf, the Court had found that ‘a reasonable result’ should be arrived at ‘by the application of equitable principles’ and taking into account all the relevant circumstances.10 At that time, equitable principles were undefined in the law relating to maritime delimitation, but they can be taken to include fairness and the equal treatment of like things. In the same case, the Court introduced a new idea, namely the element of a reasonable degree of proportionality . . . between the extent of the . . . areas appertaining to the coastal State and the length of its coast measured in the general direction of the coastline, account being taken . . . of the effects . . . of any other . . . delimitations . . . in the same region.11 This idea of avoiding significant disproportion remains relevant today; however, as we will discover, it is an elusive concept which is proving difficult to apply in practice. International courts and tribunals have responded to the lack of substantive rules in articles 74(1) and 83(1) in a positive manner. Thus, judges have first accepted the concept of the single maritime boundary for the EEZ/continental shelf within the 200 nautical mile limit even though that concept does not appear in the Convention. This is shown by the judgment in the case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), in which the Court stated that the concept of a single maritime boundary does not stem from multilateral treaty law but from State practice, and . . . finds its explanation in the wish of States to establish one uninterrupted boundary line delimiting the various—partially coincident—zones of maritime jurisdiction appertaining to them.12 More importantly, courts and tribunals have gradually developed a methodology for implementing the test of achieving an equitable solution. In a chain of decisions, they have established a detailed process for appraising the 9  10  11  12 

Cameroon v. Nigeria, ICJ Reports (2002): 303, at para. 294. North Sea Continental Shelf cases, ICJ Reports (1969): 3, at para. 90. Id., para. 101 D (3). ICJ Reports (2001): 40, para. 173.

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equities of each situation, amounting now to a settled methodology. A twostage process was outlined in several cases, notably the case concerning Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway),13 Barbados v. Trinidad and Tobago14 and Guyana v. Suriname.15 The two stages were, first, to draw a provisional equidistance line between the respective coasts; and, second, to assess this line’s equitableness. More recently, the process was refined by the Court in the case concerning Maritime Delimitation in the Black Sea (Romania v. Ukraine) as a three-stage approach, in effect dividing the second stage into two separate stages.16 The three stages are: (1) To construct a provisional equidistance line (PEL). (2) To consider the possible need to adjust it. (3) To verify that the proposed line would not lead to significant dis­pro­portionality. This three-stage approach has been followed by the ITLOS in Bangladesh/ Myanmar17 and by the Court itself in the case concerning the Territorial and Maritime Dispute (Nicaragua v. Colombia),18 as well as in Peru v. Chile.19 This brings some consistency and a welcome degree of predictability to the application of the law, assisting litigators and negotiators alike. The methodology can now be expected to be used regularly by international judges, unless there are exceptional circumstances (discussed below). In short, it can be said that courts and tribunals are successfully implementing article 74/83, paragraph 1, despite its lack of specific rules or methods. The three stages merit further examination.

Constructing the PEL

In the Black Sea case, the ICJ was charged principally with delimiting the EEZ/ continental shelf and not the territorial sea of the Parties.20 The Court stated 13  ICJ Reports (1993): 38. 14  27 RIAA (2006): 147. 15  47 ILM (2008): 164. 16  ICJ Reports (2009): 61. 17  ITLOS Reports (2012): para. 225 ff. 18  ICJ Reports (2012): para. 137 ff. 19  ICJ Reports (2014): para. 177 ff. 20  The Court drew a boundary between the territorial sea of Ukraine, measured from Serpents’ Island, and the EEZ of Romania.

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that it would draw a PEL between adjacent coasts “unless there are compelling reasons that make this unfeasible in the particular case.”21 For the construction of the line, the Court indicated that it would “select base points by reference to the physical geography of the relevant coasts”22 and would “identify the appropriate points on the parties’ relevant coast or coasts which mark a significant change in the direction of the coast in such a way that the geometrical figure formed by the line joining all these points reflects the general direction of the coastlines.”23 The Court also observed that the PEL is “plotted on strictly geometrical criteria on the basis of objective data.” While these criteria and data were not specified, it was clear that the Court was concerned to establish the general direction of the coast “taking due account of the geography.”24 Due account meant that some, but not all, parts of the coast, i.e. not all baselines, would be used. Instead, some low-tide elevations, small islets and features such as Serpents’ Island which did not, in the view of the Court, represent the general direction of Ukraine’s coast were omitted from the selection. In particular, the Court stated that to use Serpents’ Island as part of the relevant coast “would amount to grafting an extraneous element on to Ukraine’s coastline; the consequence would be a judicial refashioning of geography . . .”.25 Nonetheless, it is inescapable that the Island does exist and has a coastline that belongs to Ukraine. Another approach would have been to find that the use of any base points on Serpents’ Island would have significantly distorted the course of the PEL and that accordingly those points should be discounted in whole or in part. In other cases, small islands have been given reduced effect.26 The Court also indicated that it would select ‘protuberant coastal points’: these tend to be headlands and capes and thus base points that are ‘nearest’ to those of the neighbouring State. However, at the same time, the Court selected some points that were not especially protuberant. These points included the landward end of the Sulina Dyke even though Romania had formally notified the Depositary under article 16 of the Convention that its base point for measuring the breadth of its territorial sea was at the seaward end. In the case of adjacent 21  22  23  24  25  26 

The Court cited its decision in Nicaragua v. Honduras. ICJ Reports (2009): 61, at para. 137. Id., para. 127. Id., para. 127. Para. 149. The Scilly Isles were given half-effect in the arbitration between France and the UK concerning the delimitation of the Channel: see David Anderson, “Report 9–3”, in International Maritime Boundaries, vol. 2, ed. Jonathan Charney & Lewis Alexander (Leiden: Martinus Nijhoff Publishers, 1998), 1735.

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States, the first base points for constructing an equidistance line are often near to the terminus of the land boundary and thus are less likely to be markedly protuberant. The Court stated that “[i]n the delimitation of the maritime areas involving two or more States, the Court should not base itself solely on the choice of base points made by one of those Parties.”27 As a general proposition, however, the Court’s dictum is not wholly clear: the only reference to the selection of base points is to be found in article 7(2) of the Convention—a special case. What each party has done in the first instance is not so much to make a choice as to establish a set or system of base lines in accordance with the rules in Part II, section 2 of the Convention and then at the second stage to submit evidence concerning its baselines to the court or tribunal exercising jurisdiction as part of its written pleadings. Leaving aside straight baselines and archipelagic baselines, so long as the rules in Part II, section 2, have been followed, logic suggests that the baselines actually used to measure the maritime spaces should be the starting points for addressing the issue of how best to delimit the overlapping claims measured from those self-same baselines. Following the decision in Romania v. Ukraine, parties to cases are now expected or invited to identify base points on the two relevant coasts and to argue that these points are the ‘most appropriate’. In practice, each party will select the base points which produce the maritime boundary line that it seeks. It is the end result—the line— that determines which points are ‘most appropriate’. This process is used by negotiators.28 The normal procedure when preparing for a new negotiation is first to ask the delegation’s cartographer to draw a median line using all valid base points. Experience shows that the first line can be surprising. The delegation could well then decide to make adjustments, for example, by omitting a base point which clearly distorts the line or by giving reduced effect to a small island or low-tide elevation in order to arrive at a line suitable for an opening proposal. The process is one of trial and error. It appears that courts and tribunals also avail themselves of the services of cartographic experts and select base points in such a way as to achieve a PEL which is found pleasing.29 This process may take place solely during the deliberations and in such cases it is not transparent. The explanation given for the choice

27  Para. 137. 28  For a survey, see David Anderson, “Negotiating Maritime Boundaries”, in Modern Law of the Sea—selected essays (Leiden: Brill, 2008). 29  H. Thirlway, 78 BYIL (2007), at p. 141. Professor Thirlway acted for many years as the legal secretary to the International Court of Justice.

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of this or that base point does not convey the full story.30 In some instances, this process may reduce the significance of the second and third stages, since the element of checking the equities will already have been included to some extent in the first stage. In the past, equidistance lines were drawn not between ‘the most appropriate points’ but rather between ‘the nearest points’ on the respective baselines from which the breadth of the territorial sea is measured. This is the rule for the delimitation of the territorial sea contained in article 15 of the Convention and one that the Court has followed. In its Judgment in the case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), the Court stated that “the equidistance line is the line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured.”31 That is the best starting point. There must be the risk of introducing a subjective element in the choice of the ‘appropriate’ points. The Court’s approach to baselines may have been inspired by the work of commentators. In learned articles, Professor Prosper Weil32 and Professor J.-P. Cot33 have advanced the argument that basepoints have two quite separate functions. The first is in measuring the maximum breadths of the territorial sea, EEZ and continental shelf, and the second in maritime delimitation. The result, according to this view, is that the rules on baselines and base points are not fully applicable to delimitation. While this approach introduces greater flexibility into delimitation, it remains the case that the Convention does not in terms provide for the two separate functions or for a bifurcated approach. The rules on baselines in Part II, section 2 of the Convention are relevant to the measurement of the territorial sea and all types of maritime zone under national jurisdiction. In

30  This is not new: see the Separate Opinion of Judges Ruda, Bedjaoui and Jiménez de Aréchaga in the Libya/Malta case, ICJ Reports (1985): 13, at 81, para. 37. 31  ICJ Reports (2001), para. 177. 32  Prosper Weil, “Apropos de la double fonction des lignes et points de base dans le droit de la mer”, in Essays in honour of Judge T.O. Elias, vol. 1, ed. Emmanuel Bello & Prince Ajibola (Dordrecht: Martinus Nijhoff Publishers, 1992), 145. 33  J.-P. Cot, “The Dual Function of Base Points”, in Coexistence, Cooperation and Solidarity: Liber Amicorum Rüdiger Wolfrum, ed. Holger Hestermeyer (Leiden: Martinus Nijhoff Publishers, 2012), 807. Professor Cot concluded as follows: “The truth of the matter is that the Court does take into account certain considerations beyond strictly ‘geometrical criteria’ when choosing basepoints for construction of the provisional equidistance line in phase 1.” (at p. 826). Later, he refers to the use of rhetoric in the reasoning given in judgments. He was a judge ad hoc in Romania v. Ukraine.

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the view of the present writer, these rules are relevant not only to the initial establishment of zones but also to the delimitation of overlapping claims. In the Bay of Bengal case, the ITLOS expressly adopted the Court’s approach to delimitation of selecting appropriate base points and drawing a PEL as the first stage. By these decisions the Tribunal allayed fears of fragmentation in the law on maritime delimitation. The Tribunal also followed the Court’s treatment of Serpents Island by giving no weight to St Martin’s Island when delimiting the EEZ/continental shelf. Both islands are situated near to the terminus of the terrestrial boundary. However, there are some important differences between the two islands. The former is miniscule (0.205 square kilometres), 35 kilometres (kms) from the mainland and uninhabited by a settled population, whereas St Martin’s Island is eight square kms in area, eight kms off Myanmar and nine off Bangladesh, and has a settled population with a maritime culture. The Tribunal’s construction of the PEL did not begin with the drawing of a median line between the nearest base points on the two coasts, which would have meant using a base point on St Martin’s Island.34 Instead, the Tribunal selected two points on the coasts of Bangladesh and four in Myanmar, three of them ones that had been advanced by Myanmar. Two of these points (one in each State) were very close together and near to the terminus of the land boundary. Apart from Myanmar’s three points, the Tribunal selected a fourth point a little further south on Myanmar’s coast and thus further away from the terminus of the land boundary, but not other points further south on Myanmar’s coasts such as Cheduba Island and Cape Negrais which would have become relevant to constructing the full PEL for the purpose of the delimiting the continental shelf beyond 200 nm. This last point on Cape Negrais was used by the Tribunal to determine both the end point of the relevant coast of Myanmar and the south-eastern corner of the relevant area when applying the test of disproportionality. The judgment also noted that the adjusted equidistance line “intersects the 200 nm limit of the exclusive economic zone of Myanmar at a point that is nearly equidistant from Cape Negrais on Myanmar’s coast and the terminus of Bangladesh’s land boundary with India.”35 Clearly, Cape Negrais was an important point, even though it was not selected as a base point for constructing the PEL. This instance demonstrates the difficulties that can arise through the selection of a small number of basepoints on what are extensive coasts.

34  Judge Gao’s Separate Opinion contains Illustration Map 2 which shows lines produced by giving full, half or no effect to St. Martin’s Island: ITLOS Reports (2012): 231. 35  ITLOS Reports (2012): 4, at para. 336 of the Judgment.

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In Nicaragua v. Colombia, the Court found that there was no difficulty in drawing a PEL between the Parties’ coasts as the first stage, that it would do so on a strictly geometrical basis, and that Nicaragua’s concerns about the effects of Colombia’s many small islands could be addressed at the second stage when substantial adjustments, including enclaving, were not precluded. The Court emphasised that, at the initial stage of drawing the PEL, it was not concerned with wider questions and that the drawing the PEL “in no way prejudges the ultimate solution which must be designed to reach an equitable result.”36 The cases show that constructing the initial PEL is an important first step. It corresponds with the practice of States in negotiating maritime boundaries. However, the judges sometimes differ perhaps from negotiators in selecting just a few base points, instead of the full range.

Consideration of the Possible Need to Adjust the PEL

In cases in which the PEL produces an equitable result, no adjustment will be made.37 In some other cases, different types of adjustments have been made by courts and tribunals in order to achieve an equitable solution. Adjustments of the PEL have been ordered for several different reasons: to allow for the eastward projection of a coast by deflecting the last part of the PEL;38 to allow for coastal concavity that produces a serious cut-off effect on the maritime entitlements of one party, by means of a geodetic line on a defined azimuth;39 to reduce the effect of a small feature by giving it reduced weight or by enclaving it;40 and to shift a line as a whole towards a shorter coast. The Court has used the last method in Libya/Malta, and recently in Nicaragua v. Colombia, where the Court explained that: “. . . it is normally only where the disparities in the lengths of the relevant coasts are substantial that an adjustment or shifting of the provisional line is called for”.41 The Court decided also to enclave some small cays, features that were treated as ‘rocks’ within the meaning of article 121 (3) of the Convention and thus not entitled to an EEZ or continental shelf. 36  Para. 196. 37  Examples are Cameroon v. Nigeria, Guyana v. Suriname and the Black Sea case. 38  Barbados v. Trinidad and Tobago, to allow for the east coast of Trinidad at the eastern end of the line. 39  Bangladesh/Myanmar, paras. 292 to 297 and para. 334 of the judgment. 40  Nicaragua v. Colombia where reduced weight was given to inhabited islands and some cays were given 12 mile enclaves. 41  Para. 210.

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This approach is more in line with the Convention than the alternative of not selecting them as ‘appropriate’ base points in constructing the PEL. In deciding upon adjustments to the PEL, the Court stated that an equitable solution required that each State should enjoy reasonable entitlements in the areas into which its coasts project. That meant that the action which the Court was taking in adjusting or shifting the PEL should avoid completely cutting off either Party from the areas into which its coasts project. However, projection is a subjective matter, based on looking at a map. The cases show that geographical factors are always relevant in stage 2. In contrast, questions of access to resources are rarely relevant. As the Arbitral Tribunal in the Barbados/Trinidad and Tobago case observed [r]esource‑related criteria have been treated more cautiously by the decisions of international courts and tribunals, which have not generally applied this factor as a relevant circumstance.42 This dictum was later endorsed by the Court in Nicaragua v. Colombia.43

Verification That There is No Disproportion

The third stage is best explained by citations from the Court’s judgment in the Black Sea case, as follows: (1) The purpose of delimitation is not to apportion equal shares of the area, nor indeed proportional shares. The test of disproportionality is not in itself a method of delimitation. It is rather a means of checking whether the delimitation line arrived at by other means needs adjustment because of a significant disproportionality in the ratios between the maritime areas which would fall to one party or other by virtue of the delimitation line arrived at by other means, and the lengths of their respective coasts.44 (2)  . . . the Court will verify that the line (a provisional equidistance line which may or may not have been adjusted by taking into account the relevant circumstances) does not, as it stands, lead to an inequitable result by reason of any marked disproportion between the ratio of the respective coastal lengths and the ratio between the relevant maritime area of each 42  27 RIAA, para. 241; 139 ILR, 523. 43  Para. 223. 44  ICJ Reports (2009): 61, at para. 110.

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State by reference to the delimitation line . . . A final check for an equitable outcome entails a confirmation that no great disproportionality of maritime areas is evident by comparison to the ratio of coastal lengths. This is not to suggest that these respective areas should be proportionate to coastal lengths . . .45 The third stage is new and still problematical. It goes back to the dictum in the North Sea Continental Shelf cases concerning a reasonable degree of proportionality (cited above). In no case has a boundary been adjusted as a result of this test. The test was applied without difficulty in Guyana v. Suriname where the two coasts were relatively straight. The ratios were not too dissimilar. However, the test is difficult to apply in some other types of situation. Examples are where a court or tribunal is charged with establishing in accordance with articles 74/83 what is just a partial boundary (e.g. Peru v. Chile, where the first 80 miles of boundary was held to have been established by a tacit agreement). A second example of difficulty is where there are islands in the vicinity of the boundary, as in Nicaragua v. Colombia, or where the coasts are indented or separated by sea. Here it is difficult to determine the relevant coasts and the relevant areas.46 Difficulties tend to increase as areas beyond 200 nm come into consideration. In more than one case, the respective ratios have displayed large differences without a correction.

Exceptions to the Normal Three-stage Methodology

In Nicaragua v. Honduras, the Court was faced with the nigh-impossible task of drawing a PEL from the presence of unstable mud islets of indeterminate sovereignty in the mouth of the border river. The configuration of the coasts at the boundary Cape was that of a sharply convex territorial projection abutting two concave coasts. The setting was such that two proximate base points, one for each Party, would steer the PEL throughout its entire length. In such circumstances, the Court held that, exceptionally, it would adopt a different method of delimitation, namely to draw two coastal fronts and to bisect the reflex angle

45  Id., para. 122. 46  The concepts of relevant coasts and relevant areas were examined in David Anderson, “Recent Decisions of Courts and Tribunals in Maritime Boundary Cases”, in International Maritime Boundaries, vol. 6, ed. Robert Colson & David Smith (Leiden: Martinus Nijhoff Publishers, 2011), at pp. 4119 ff.

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between them.47 It can be said that the geographical circumstances were most unusual. In three other cases, arguments in favour of using a bisector have been rejected. In Guyana v. Suriname, Suriname’s argument in favour was rejected on the grounds that the general configuration did not present unusual geographical peculiarities.48 In Bangladesh/Myanmar, the Tribunal rejected an argument from Bangladesh in favour of the use of the angle-bisector method on the grounds that the geographical circumstances were not possible or appropriate. In Nicaragua v. Colombia, the Court rejected Nicaragua’s argument in favour of making a second type of exception on the grounds that Colombia’s islands facing Nicaragua should all be enclaved. Recently, in Peru v. Chile the Court referred to the need for “compelling reasons preventing” the drawing of a PEL.49 The cases show that exceptions to the normal rule are rare.50 Several parties have advanced claims based on angle bisectors, but they have been rejected in almost every case. Clearly, it is a method that should be kept in reserve for the case where it is nigh impossible to draw a PEL.

The Continental Shelf Beyond 200 Nautical Miles

There has long been interest in the delimitation of the continental shelf in situations where, in accordance with article 76 of the Convention, it extends beyond the 200 mile limit of the EEZ. Several boundary agreements have been concluded that stretch beyond 200 nm.51 The issue has arisen in several recent cases. First, in Barbados v. Trinidad and Tobago, an Annex VII tribunal found that it did have jurisdiction to delimit the continental shelf beyond 200 miles, but in the event the tribunal’s boundary did not extend beyond that limit.52 Secondly, in Nicaragua v. Honduras the Court, when considering the question of the end point of its maritime boundary, stated that “any claim of continental shelf rights beyond 200 miles [by a State party to UNCLOS] must be in accordance with Article 76 of UNCLOS and reviewed by the Commission on 47  48  49  50 

ICJ Reports (2007) (II): 759. Para. 372. ICJ Reports (2014): para. 180. In their review of methods of delimitation used in boundary agreements, Legault and Hankey discuss the angle bisector by reference to the Gulf of Maine case and just one agreement (Sharjah/Umm al Qaywayn): International Maritime Boundaries, vol. 1, ed. Jonathan Charney & Lewis Alexander (Leiden: Martinus Nijhoff Publishers, 1998), at 210. 51  For example, the Agreement between Ireland and the UK, David Anderson, “Report 9–5”, in International Maritime Boundaries, vol. 2, ed. Jonathan Charney & Lewis Alexander (Leiden: Martinus Nijhoff Publishers, 1998). 52  Para. 368 of the Award.

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the Limits of the Continental Shelf established thereunder.”53 Nicaragua had submitted only preliminary information which had not been reviewed. In the Bay of Bengal case (Bangladesh/Myanmar), the Tribunal found that, in view of the fact that a thick layer of sedimentary rocks covers practically the entire floor of the Bay of Bengal, it presented a unique situation and that this fact had been acknowledged in the course of negotiations at the Third Conference. Both parties were found to have entitlements to continental shelf in the Bay of Bengal, but geological factors were not taken into account in establishing the boundary. The Tribunal held that “Article 83 applies equally to the delimitation of the continental shelf both within and beyond 200 nm.”54 The Tribunal continued the boundary for the EEZ in the same direction beyond 200 nm, thus becoming the first international court or tribunal to establish a boundary beyond 200 nm. The same delimitation method was used because the Tribunal considered that the cut-off effect produced by coastal concavity persisted beyond 200 nm. In other words, geographical factors governed the delimitation to the exclusion of other scientific considerations. As Professor Churchill has pointed out, in a different geographical setting geological and geomorphological factors “would seem in principle capable of being relevant circumstances in delimitations concerned solely with the seabed. It may well be appropriate, therefore, to take them into account in other cases when delimiting a continental shelf boundary beyond 200 nm.”55 More recently, the question of the delimitation of the continental shelf beyond 200 nm was also considered by the Court in Nicaragua v. Colombia in circumstances where Nicaragua had submitted only preliminary information to the Commission on the Limits of the Continental Shelf in accordance with article 76 and Colombia was not a party to the Convention. The Court found that Nicaragua had not established that it had a continental margin that extended far enough to overlap with Colombia’s entitlement to the continental shelf of 200 nm, measured from Colombia’s mainland coast. Thus, the Court was not in a position to delimit the continental shelf boundary between Nicaragua and Colombia, as requested by the applicant.56 53  ICJ Reports (2007) (II): 759, at para. 319. 54  Para. 444 of the judgment. 55  R.R. Churchill, Dispute Settlement in the Law of the Sea: Survey for 2012, 28 International Journal of Marine and Coastal Law (2013), 563, at p. 584. See also C. Schofield et al., A Tribunal Navigating Complex Waters: Implications of the Bay of Bengal case, 44 Ocean Development & International Law (2013) 363, at 380. 56  Para. 129 of the judgment. Nicaragua has instituted new proceedings against Colombia on the question.

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There are clearly many unresolved issues concerning delimitation beyond 200 nms. Conclusions At the outset, two questions were posed: (1) have international judges managed to apply satisfactorily article 15 and especially the very broad principle in articles 74/83, and (2) has article 287 resulted in inconsistent decisions by different courts and tribunals? It is clear that the answer to the first question is broadly affirmative. The judges have developed a consistent methodology which appears to be working satisfactorily. There are now detailed procedures and methods for addressing boundary issues: there is a general rule and a very limited exception. The tension between supporters of the median line and those of equitable principles seems to be abating. The three stage approach combines equidistance with equity, accommodating all sides. While there is an exception, it should be confined to exceptional geographical circumstances which preclude use of the normal methodology. The rules in articles 74/83, paragraph 1, have quickly acquired the status of customary law. With one exception, the recent judiciallydetermined boundaries have been accepted by the States concerned. However, the present writer would urge courts and tribunals to adhere more closely to objective criteria and the technical aspects of delimitation, such as those on baselines in Part II, on the continental shelf in article 76 and on islands in Part VIII. Similarly, a positive answer can be given to the second question.57 Courts and tribunals regularly cite each other’s decisions. This is especially true of arbitral tribunals and the ITLOS, which often cite previous decisions. The Court has been slower to refer to other courts and tribunals, but the Court’s latest decisions do now cite the ITLOS and arbitrations. As a result, there are no discernible differences. There is one body of jurisprudence to which several courts and tribunals have contributed. The fears of fragmentation have proved to be unfounded in this context.

57  Although none of the Court’s delimitation cases mentioned above has been founded on the jurisdictional provisions of Part XV of the Convention, the Court has applied the substantive provisions either as treaty law between two States Parties or in other cases as customary international law.

Chapter 29

The Bay of Bengal Case before the International Tribunal for the Law of the Sea Gudmundur Eiriksson I welcome the opportunity to contribute to a work honouring Judge Hugo Caminos. It is now 40 years since I began working with Hugo upon my appointment to the Office of the United Nations Secretary-General for the Law of the Sea which had just been established to service the negotiations at the Third United Nations Conference on the Law of the Sea (hereinafter the Conference). Hugo was my immediate superior and responsible for supervising the intellectual work of the office. Among his many other attributes which inspired me as a young lawyer beginning my career in international law was what was to be his life-long devotion the United Nations which had taken seed with his participation in the San Francisco Conference. In 1996, we were honoured to have been elected to the first bench of the International Tribunal for the Law of the Sea (hereinafter the Tribunal). I think Hugo would agree that we saw eye-toeye on all of the work of the Tribunal during the time we served together. Recently, I had the occasion to recall and write an article on the cooperation which Hugo and I enjoyed at the Conference with Satya Nandan. Satya was the Rapporteur of the Second Committee of the Conference, one of its three Main Committees. At the third session of the Conference, in 1975, the Chairman of each of the Main Committees was charged with preparing a single negotiating text dealing with the subjects allocated to his Committee. The then Chairman of the Second Committee, Ambassador Reynaldo Galindo Pohl, entrusted this task to Satya. Hugo and I had been assigned to work with the Second Committee and Satya called upon us to assist him in the intensive work which led to the presentation of the Informal Single Negotiating Text, Part II (hereinafter the ISNT).1 My article on the cooperation with Satya portrays the main features of that work.2 1  UN document A/CONF.62/WP.8/Part II (1975). 2  Gudmundur Eiriksson, “Satya N. Nandan’s role in Drafting the Informal Single Negotiating Text: Aspects of the Preparatory Work for UNCLOS”, in Peaceful Order in the World’s Oceans: Essays in Honor of Satya N. Nandan, ed. Michael W. Lodge & Myron H. Nordquist, (Leiden: Martinus Nijhoff, 2014), 37–50.

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At the fourth session of the Conference, in 1976, Ambassador Galindo Pohl had resigned and was replaced by Ambassador Andrés Aguilar. Ambassador Aguilar prepared the revision to the ISNT, the Revised Single Negotiating Text (hereinafter the RSNT),3 and other successor texts, including the final draft of what was to become the United Nations Convention on the Law of the Sea (hereinafter the Convention), again with the support of Hugo and, until I left the Secretariat in 1977, myself. I returned to the Conference as a member of my country’s delegation and continued the fruitful cooperation with Ambassador Aguilar, Hugo and Satya in the remaining sessions of the Conference until its work was concluded in 1982. I mention these events of forty years ago to set the stage for the comments below on the interpretation of certain provisions of the Convention. The Bay of Bengal Case I have chosen here to deal with certain aspects of the Tribunal’s 2012 Judgment in the Dispute concerning Delimitation between Bangladesh and Myanmar in the Bay of Bengal case (hereinafter the Bay of Bengal case).4 The case is noteworthy in many respects, including that it is the Tribunal’s first case on maritime boundary delimitation, whereas some two dozen delimitation cases have been decided by or are pending before the International Court of Justice (hereinafter the ICJ) or arbitral tribunals, many brought after the establishment of the Tribunal. Because of this, it is particularly appropriate to review the case in the context of the Tribunal’s broader role in the settlement of disputes regime in the field of the law of the sea. I would dearly have loved to have served on the bench with my former colleagues when deciding the case. Stated differently, I would have welcomed a delimitation case having been brought before the Tribunal during my term of service and to thus have had the opportunity to engage with others who had been involved in the negotiations of the Conference in a discourse on certain 3  UN document A/CONF.62/WP.8/Rev.1/Part II (1976). I recall fondly the time Hugo and I spent with Ambassador Aguilar at the Venezuelan Permanent Mission to the UN in the final stages of the preparation of the RSNT. The Second Committee held 53 informal meetings to discuss the ISNT during which over 3700 statements were made. The revision process involved taking a position on over 1000 amendments. 4  Dispute concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), Case No. 16, Judgment of 14 March 2012, available at: http://www.itlos.org/index.php?id=108.

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trends in the work of the ICJ and arbitral tribunals. Indeed, one of the distinguishing features of the Tribunal, especially in its earliest composition, was that so many of its Judges had been prominent participants in the negotiations at the Conference. With the passage of time this will, of course, be less and less the case. This was not to be and my role, instead, is that of a sympathetic commentator. I will not seek here to ‘second-guess’ the Tribunal as to the final line of delimitation drawn in the case. I know from my own experience on the Tribunal that many compromises must be made in the course of judicial deliberations and the judgment in a case may not represent any single judge’s opinion.5 I will instead confine my treatment of the case to two elements of perhaps more general application, first, the decision by the Tribunal to follow recent trends in international jurisprudence giving pride of place to equidistance in maritime delimitation decisions and, second, the downplaying of the role of ‘natural prolongation’ in the assessment of the entitlement of a coastal State to the continental shelf. Specifically, this discourse relates to the interpretation of articles 56, 76 and 83 of the Convention. Fragmentation of the Law of the Sea The Bay of Bengal case was the first occasion to put to the test the risk elaborated by scholars (and Judges) that the Tribunal might depart significantly from the jurisprudence of the ICJ and arbitral tribunals in the field of maritime delimitation and thus contribute to the fragmentation of international law. The fragmentation issue was addressed by a Study Group of the United Nations International Law Commission. In its report,6 finalized by its Chairman, Professor Martti Koskenniemi, a number of law of the sea scenarios were cited. While I was serving on the Tribunal I took pains in various fora to reassure potential ‘clients’ that the Tribunal could not be expected to depart significantly from established jurisprudence; that it would not prove to be a ‘maverick court’. I have moreover taken a broad brush approach, asserting 5  Declarations by individual judges or groups of judges, separate opinions and, in particular, dissenting opinions can give the flavour of the discussions. In the Bay of Bengal case, 11 Judges appended declarations or separate or dissenting opinions. 6  International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law—Report of the Study Group of the International Law Commission, UN document A/CN.4/L.682 and Corr.1 (2006). See Sean D. Murphy, “Deconstructing Fragmentation: Koskenniemi’s 2006 ILC Project”, Temple International & Comparative Law Journal (forthcoming). See also Benedict Kingsbury, “Foreword: Is the Proliferation of International Courts and Tribunals a Systemic Problem?”, 31 New York University Journal of International Law and Politics, 679 .

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that the more outlets available to States to resolve disputes in a peaceful manner the better.7 Indeed, it can be recalled that the ICJ was for a period regarded by many States as an inappropriate forum for settling disputes in new and arising fields of law,8 a view which has happily abated. I think it fair to conclude, as have many other commentators, that the Tribunal in its judgment in the Bay of Bengal case has successfully allayed the aforementioned concerns.9 In his usual incisive manner, Judge Treves dealt with this issue in terms of a ‘collective interpretative endeavour’: 7  I shared a panel recently with Judge Xue of the ICJ and was pleased to hear that she, like me, does not consider the proliferation of international tribunals to be a problem, but rather as an opportunity to enhance the role of international law in international affairs. See “Panel I: Challenges In International Law And The United Nations” (Conference Proceedings: The Challenges We Face: A Conference Honoring Professor Richard N. Gardner’s Retirement from Teaching)”, 50 Columbia Journal of Transnational Law, 537. Indeed, some healthy competition may be welcome. See William Thomas Worster, “Competition and Comity in the Fragmentation of International Law”, 34 Brooklyn Journal of International Law 119 (2008): 143. See also Murphy, supra note 6, 12: Moreover, the [Koskenniemi] Report may have placed too much emphasis on the need to promote the coherence of the international law system, rather than recognizing and celebrating, for example, the value of competition between international tribunals. 8  See Pemmaraju Sreenivasa Rao, “Multiple International Judicial Forums: A Reflection of the Growing Strength of International law or Its Fragmentation?”, 25 Michigan Journal of International Law 929 (2003–2004): 943–944. Dr. Rao does not regard this “disenchantment with the decisions of the ICJ” as a significant factor: “After all, disenchantment with outcomes is not confined to the ICJ or to judicial tribunals in general; it is a feature common to most permanent institutional bodies.” 9  See, e.g. Robin Churchill, “The Bangladesh/Myanmar Case: Continuity and Novelty in the Law of Maritime Boundary Delimitation”, 1 Cambridge Journal of International and Comparative Law (2012): 137–152, 152: “Thus, fears that involving yet another tribunal in maritime boundary delimitation risks fragmenting the international jurisprudence should have been allayed in this case.” See also Clive Schofield and Anastasia Telesetsky, “Grey clouds or clearer skies ahead? Implications of the Bay of Bengal Case”, 3 Law of the Sea Reports (2012): 11: The tribunal’s adoption of the same three-stage process towards maritime dispute settlement in the Black Sea Case, is to be commended as enhancing the predictability in judicial decisions relating to maritime boundary delimitation.  See also Erik Franckx and Marco Benatar, “Navigating between Consolidation and Innovation: Bangladesh/Myanmar (International Tribunal for the Law of the Sea, Judgment of 14 March 2012)”, 27 Ocean Yearbook 435–458 (2013): 451.  As regards the territorial sea, the EEZ, and the continental shelf within 200 NM, the ITLOS signaled to the international community, and future clients wishing to avail themselves of its services, a resolve to stay within the fold of maritime boundary case law and to demonstrate that much lauded virtue of predictability, [. . .] thus putting to rest anxieties of fragmentation.

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The framers of the Convention would seem not to have been concerned about the danger of fragmentation that decisions on the same body of law by different courts and tribunals might entail, a danger that some, but certainly not all, scholars and practitioners consider grave. In order to avert such danger and to prove that the possibility of decisions by different courts and tribunals on the same law may be a source of richness and not of contradiction, all courts and tribunals called to decide on the interpretation and application of the Convention, including its provisions on delimitation, should, in my view, consider themselves as parts of a collective interpretative endeavour, in which, while keeping in mind the need to ensure consistency and coherence, each contributes its grain of wisdom and its particular outlook. . . . With the present judgment the Tribunal becomes an active participant in this collective interpretative endeavour.10

The Interpretation of the United Nations Convention on the Law of the Sea

The Tribunal, in its conclusions on one of the themes I am discussing here, makes what Judge Gao describes as a ‘bold’ interpretation of article 76(1) of the Convention.11 As further discussed below, the Tribunal refers to the text of the relevant provision and to its ‘object and purpose’.12 The implied reference is to the rules of treaty interpretation found in article 31 of the 1969 Vienna Convention on the Law of Treaties, paragraph 1 of which reads: A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 10  Declaration of Judge Treves to the Judgment, para. 2. This view was anticipated by Professor Koskenniemi in his Report, supra note 6, at para. 52. After noting that it could not be excluded that two tribunals faced with similar facts might interpret the applicable law differently and that an authority such as is available in domestic jurisdiction is normally not available in international law he envisages that the institutions would seek to coordinate their jurisprudence in the future. 11  Separate opinion of Judge Gao to the Judgment, para. 87: Not only are these bold interpretations of the relevant provisions of the Convention inaccurate in my view, but they are also stated more assertively than anything other courts and tribunals have said in previous cases. (Emphasis added.) 12  Judgment, para. 437. See below, “Natural prolongation as an element in the definition of the continental shelf”.

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The Tribunal also recalls Myanmar’s argument in favour of an interpretation of article 76 as being confirmed by “the object and purpose of the provision as well as the legislative history”.13 This reference to the legislative history brings into play article 32 of the Vienna Convention, which reads: Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable. These references in the Judgment raise questions on the application of the rules of treaty interpretation to the unique circumstances of the negotiations at the Conference.14 A main feature of those negotiations was that so much work was conducted without records, particularly in the Second Committee.15 As mentioned above, the Conference had decided to entrust its leadership with the task of preparing negotiating texts on which negotiations could be focused, replacing the until then prevailing practice of delegations submitting proposals, debating and then voting. Following the drafting of the first of these, the ISNT, a series of revisions were produced, culminating in the Draft Convention, which was the only one of the texts voted upon. These texts were the sole responsibility of the President and Main Committee Chairmen, joined

13  Judgment, para. 427. 14  See Gudmundur Eiriksson, “The Case of Disagreement between a Coastal State and the Commission on the Limits of the Continental Shelf”, in Legal and Scientific Aspects of Continental Shelf Limits. (Proceedings of 27th Annual Conference of the Center for Oceans Law and Policy, University of Virginia School of Law, Reykjavik, 25–27 June 2003),  ed. Myron H. Nordquist, John Norton Moore & Tomas H. Heidar  (Leiden: Martinus Nijhoff, 2004), 251–262, at pp. 252–253 and Eiriksson, supra note 2. 15  See Myron H. Nordquist, ed., United Nations Convention on the Law of the Sea 1982: A Commentary (hereinafter the Virginia Commentary), Vol. II (Dordrecht/Boston: Martinus Nijhoff, 1993), 18. For an authoritative and lively account of the negotiations at the Conference see Tommy T.B. Koh and Shanmugam Jayakumar, “The Negotiating Process of the Third United Nations Conference on the Law of the Sea”, in Virginia Commentary, Vol. I (Dordrecht/Boston: Martinus Nijhoff, 1985), 29–134.

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in the final stages in a Collegium by the Chairman of the Drafting Committee and the Rapporteur-General.16 The ISNT built on the work of a large number of formal and informal negotiating groups. The most influential of these was the Informal Group of Juridical Experts, convened by Jens Evensen, leader of the Norwegian delegation. The Evensen group was composed of most of the leading negotiators in the Second Committee, participating at the invitation of Chairman Evensen in their personal capacities. On the basis of discussions in the group, Ambassador Evensen produced texts of articles which he thought would be generally acceptable and presented them to the Chairmen of the Second Committee, including on the exclusive economic zone and the continental shelf. At the stage of preparation of the ISNT, a number of core issues remained to be resolved and various negotiating mechanisms would be set up at later sessions of the Conference to address them. The issues included the legal status of the exclusive economic zone; the precise definition of the outer limit of the continental shelf and revenue-sharing in respect to the exploitation of the continental shelf beyond 200 nautical miles; and the delimitation of the exclusive economic zone and the continental shelf between States with opposite or adjacent coasts. The work on these issues was well documented, but the situation remained, as mentioned above, that it was for the leadership of the Conference to decide on the incorporation of the results in the negotiating texts.17 As it turned out, the provisions of the Convention which are the subject-matter of this essay, namely, articles 56(3), 76(1) and 83(1), were among those articles of the Convention with respect to which no ‘preparatory work’ 16  On these unique circumstances, see Koh and Jayakumar, ibid., p. 56: The power given to [the President and Chairmen of the three main Committees] to write texts which in practice were regarded as the unofficial draft Convention was unprecedented in UN practice. The power they held in their hands was enormous, especially considering that it was not easy for delegations to subsequently alter the texts. Indeed, whether the texts were to be revised or not was also largely left to the decision of the President and Chairmen. 17  On articles 74 and 83, Judge Oda wrote: It is not easy to give a proper interpretation to a text which, after the failure of negotiations over a lengthy period at the Conference, was drafted by one person (i.e., the President of UNCLOS III) and adopted without any further discussion. (Maritime Delimitation in the Area between Greenland and Jan Mayen, Judgment, ICJ Reports (1993): 38 (hereinafter the Jan Mayen case), Separate opinion of Judge Oda, para. 65.)  And on article 56(3) he wrote: “Article 56, paragraph 3, . . . which was incorporated without discussion, seems to be an extremely misguided provision and is difficult to understand. (Ibid., para. 71.)”

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in the sense of article 32 of the Vienna Convention on the Law of Treaties can be readily identified.18 It is this fact which has informed my assessment below of the Tribunal’s interpretation of these provisions in the Bay of Bengal case.19

Methodology in Deciding Maritime Boundary Delimitation Cases

In its judgment in the Bay of Bengal case, the Tribunal, with respect to its conclusion on the delimitation of the exclusive economic zone and the continental shelf within 200 nautical miles, followed recent trends in the international jurisprudence on the relationship between equidistance, relevant circumstances, equity, proportionality, etc., as evidenced by extensive citations to case law.20 More specifically, the Tribunal applied the ‘equidistance/relevant circumstance method’ laid down in the Black Sea case before the ICJ in applying articles 74 and 83 of the Convention, following a three-stage approach.21 18  When President Koh presented to the Conference a compromise formula for what was to become articles 74 and 83 he appealed to delegations not to interpret the text. Judge Yankov, then Head of the Bulgarian Delegation and Chairman of the Third Committee, joined the President in this appeal. See records of the 154th plenary meeting (1981), XV Off. Rec. 39, paras. 16 and 22. On article 83(3), on the other hand, see below . . .  19  I hasten to point out that in the thirty years that I have been applying and commenting on the Convention I have remained impressed with its precision, clarity and consequent ease of interpretation. At the Conference, the work of the Drafting Committee was especially thorough, although it was debarred from altering the substance of the texts referred to it. Three of the judges in the Bay of Bengal case were especially active in the Committee’s work. Judge Nelson was its Secretary and Judge Treves and Judge ad hoc Oxman were Co-ordinators of respectively the French and the English Language Groups of the Committee. See L.D.M. Nelson, “The Work of the Drafting Committee”, in Virginia Commentary, Vol. I (Dordrecht/Boston: Martinus Nijhoff, 1985), 135–152. Judge Nelson deals inter alia with the interpretation of the Convention in the context of the Committee’s work. Ibid., 146–152. 20  The Tribunal cites with approval, for example, the Jan Mayen case, Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, ICJ Reports (2009): p. 61 (hereinafter the Black Sea case) and Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, ICJ Reports (2001): 40. 21  The Black Sea case methodology is set out by the Court in its most recent case: The methodology which the Court usually employs in seeking an equitable solution involves three stages. In the first, it constructs a provisional equidistance line unless there are compelling reasons preventing that. At the second stage, it considers whether there are relevant circumstances which may call for an adjustment of that

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As the first stage, it constructed a provisional equidistance line, based on the geography of the Parties’ coasts and mathematical calculations. It then determined that there were relevant circumstances requiring adjustment of the line to produce an equitable result. Finally, it tested whether the adjusted line resulted in any significant disproportion between the ratio of the respective coastal lengths and the ratio of the relevant maritime areas allocated to each Party.22 As noted above, I will not here comment on the Tribunal’s choices when applying the aforementioned methodology, which involved the assessment and balancing of a variety of considerations, not all of which are explained fully by the Tribunal. In this regard, the judgment is no different from many in the ICJ and arbitral tribunals. It is clear that the Tribunal was preoccupied with pursuing a modicum of stability in the field of maritime boundary delimitation.23 This desideratum was thoughtfully portrayed by Judges ad hoc Mensah and Oxman in their Joint declaration: The law applicable to delimitation of the exclusive economic zone and the continental shelf, as articulated and applied by international courts and tribunals, entails neither an unyielding insistence on mathematical certainty nor an unbounded quest for an equitable solution. The equidistance/relevant circumstances method of delimitation seeks to balance the need for objectivity and predictability with the need for sufficient flexibility to respond to circumstances relevant to a particular delimitation. Maintaining that balance requires that equidistance be qualified by relevant circumstances and that the scope of relevant circumstances be circumscribed.  . . . While no adjustment for relevant circumstances is immune to the risks of subjectivity, the focus on addressing the precise problem posed by the provisional equidistance line, and on the relationship of any line to achieve an equitable result. At the third stage, the Court conducts a disproportionality test in which it assesses whether the effect of the line, as adjusted, is such that the Parties’ respective shares of the relevant area are markedly disproportionate to the lengths of their relevant coasts. (Maritime Dispute (Peru v. Chile), Judgment of 24 January 2014, para. 180). 22  Judgment, para. 240. 23  See Judgment, para. 228: “Over time, the absence of a settled method of delimitation prompted increased interest in enhancing the objectivity and predictability of the process.”

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adjustment to the relevant coasts of both Parties as they are, helps to discipline the process and to direct attention to the right questions.24 Judges Nelson, Chandrasekhara Rao and Cot are even more adamant: Courts and tribunals have progressively reduced the elements of subjectivity in the process of delimitation in order to further the reliability and predictability of decisions in this matter. . . . Application of these principles calls for consistency. One should not try to reintroduce other methods of delimitation when implementing the equidistance/relevant circumstances rule. It would amount to reintroducing the very elements of subjectivity progressively reduced over the years.25 The search for certainty in the maritime delimitation methodology which judicial bodies and commentators have been engaged in over the last 15 years is predicated on a certain reading of articles 74 and 83. Judges Nelson, Chandrasekhara Rao and Cot, for example, describe these articles as ‘imprecise to say the least’.26 Judge Wolfrum, after stating that the Conference could not agree on a particular method of delimitation, notes: “The Conference therefore left the task of the delimitation to the coastal States concerned and—if they could not agree—to judicial dispute settlement.”27 Does such ‘imprecision’ amount to ambiguity in the sense of article 32 of the Vienna Convention of the Law of Treaties so as to engage recourse to supplementary means of interpretation, including the preparatory work at the Conference?28 As noted above, the delimitation of the exclusive economic zone and continental shelf remained one of the outstanding core questions until the very end of the Conference. This can be contrasted to the treatment of the question of the delimitation of the territorial sea. In the preparation of the ISNT it was considered appropriate to incorporate the language of article 12 of the 1958 Convention on the Territorial Sea and the Contiguous Zone. It was felt that, whatever might be the disposition of the articles relating to the exclusive economic zone and the continental shelf, which, at the time when the ISNT was 24  25  26  27  28 

Joint declaration of Judges ad hoc Mensah and Oxman to the Judgment, paras. 4–8. Joint declaration of Judges Nelson, Chandrasekhara Rao and Cot to the Judgment, pp. 1–2. Ibid., p. 1. Declaration of Judge Wolfrum, p. 2. See supra, text to footnote 14.

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being drafted, could be expected to be quite vague, it was desirable that there be more certainty in the case of the narrower zone, the territorial sea, where, moreover, questions of sovereignty were involved.29 This view was shared by Chairman Aguilar when working on later revisions. The article remained unchanged in substance throughout the negotiations at the Conference and is to be found in the Convention as article 15.30 On the other hand, the articles in the ISNT on the delimitation of the exclusive economic zone and the continental shelf were not expected to be the final resolution of the ongoing debate but were rather intended to maintain aspects safeguarding the position of the two active interest groups, espousing, respectively the equidistance principle and equitable principles, pending further negotiations. They provided for delimitation to be “effected by agreement in accordance with equitable principles, employing, where appropriate, the median or equidistance line, and taking account of all the relevant circumstances”.31 Various negotiating mechanisms were subsequently employed at the Conference to seek to agree on a text.32 At the tenth session, in 1981, Tommy Koh, who had recently been elected President of the Conference, called on Satya Nandan to assist in the direct negotiations he was conducting with the leaders of the two interest groups. The text Satya suggested to the President proved acceptable to the groups and is now to be found in articles 74(1) and 83(1) of the Convention.33 The text introduced the element of “international law, as referred to in Article 38 of the Statute of the International Court of Justice” and the aim of achieving ‘an equitable solution’. The former reference was meant to appeal to the members of the equidistance group who could 29  See Declaration of Judge Wolfrum, p. 2: Unlike for the delimitation of the territorial sea, the Third United Nations Conference on the Law of the Sea could not agree on a particular method of delimitation of the continental shelf and the exclusive economic zone. (Emphasis added.) 30  In its Judgment, the Tribunal observed that the effect to be given to islands in delimitation may differ, depending on whether the delimitation concerns the territorial sea or the maritime areas beyond it: “Both the nature of the rights of the coastal State and their seaward extent may be relevant in this regard.” (Judgment, para. 148.) 31  ISNT, articles 61 and 70. 32  See Virginia Commentary, Vol. II (Dordrecht/Boston: Martinus Nijhoff, 1993), 948–985. 33  See ibid., pp. 979–980. See also supra note 18. Judge Oda described the result as follows: However, there can be no doubt that the whole concept of Articles 74 and 83 originated from Article 6 of the 1958 Convention and was a product of a compromise between the two opposite schools of thought, the median-line school and the equitable principle school. ( Jan Mayen case, Separate opionion of Judge Oda, para. 65.)

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argue that their point of view was endorsed by the reference to an article setting out the sources of international law. The latter reference could be used by members of the equitable principles group in support of their position. During the negotiations attention was drawn to the provisions in the respective articles dealing with the situation when no agreement had been reached between the parties to a delimitation dispute. In the ISNT, it was stated that, pending agreement, no State was entitled to extend its exclusive economic zone/continental shelf beyond the median line or the equidistance line.34 This categorical rule was seen as upsetting the balance then being negotiated between the two interest groups. It was amended by Chairman Aguilar in the RSNT to provide instead for the obligation of States to make provisional arrangements pending agreement or settlement.35 He explained the change as follows: However, paragraph 3 of former articles 61 and 70 posed a problem. Since the Conference may not adopt a compulsory jurisdictional procedure for the settlement of delimitation disputes, I felt that the reference to the median or equidistant line as an interim solution might not have the intended effect of encouraging agreements. In fact such reference might defeat the main purpose of the article as set out in paragraph 1. The solution was, in my opinion, to propose wording in paragraph 3 which linked it more closely to the principles in paragraph 1.36 The Tribunal, like the ICJ and arbitral tribunals in earlier cases, was careful to characterize the methodology it applied as allowing the flexibility necessary to accommodate circumstances relevant to delimitation in a particular 34  ISNT, articles 61(3) and 70(3). 35  The ICJ had in 1974 addressed the implications of an interim agreement which the parties to a case before it had reached: Moreover, if the Court were to come to the conclusion that the interim agreement prevented it from rendering judgment, or compelled it to dismiss the Applicant’s claim as one without object, the inevitable result would be to discourage the making of interim arrangements in future disputes with the object of reducing friction and avoiding risk to peace and security. This would run contrary to the purpose enshrined in the provisions of the United Nations Charter relating to the pacific settlement of disputes. . . . The Court concludes that the existence of the interim agreement ought not to lead it to refrain from pronouncing judgment in the case. (Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, Judgment, ICJ Reports [1974]: 3, para. 41.) 36  Introductory Note to the RSNT. The text was later expanded in the Informal Composite Negotiating Text, Rev.2, UN document A/CONF/62/WP.10/Rev.2 (1980).

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case.37 It proceeds, however, from a reading of the trends in the jurisprudence in favour of the equidistance/relevant circumstances method.38 As for the disproportionality test in the final stage, the ICJ has noted that “the calculation does not purport to be precise and is approximate” and after citing some recent cases states that in such cases “the Court engages in a broad assessment of disproportionality”.39

Natural Prolongation as an Element in the Definition of the Continental Shelf

Another noteworthy aspect of the Bay of Bengal case is that is the first case to deal substantively with the delimitation of the continental shelf beyond 200 nautical miles. It was consequently the first time the judicial function interacted with the scientific function provided for in the Convention for the Commission on the Limits of the Continental Shelf established under Annex II

37  Judgment, para. 228. 38  See Judgment, para. 238: “The Tribunal notes that jurisprudence has developed in favour of the equidistance / relevant circumstances method. This is the method adopted by international courts and tribunals in the majority of the delimitation cases that have come before them.” See, however, the oral pleadings of Professor James Crawford, appearing for Bangladesh: Consistently with this appreciation of the law, an equidistance line solution in the present case is not opposable to Bangladesh, any more than it was to Germany. Equity prevails, OK! To support that, I have allocated each decision since 1969 to one or more of four categories: strict equidistance; modified equidistance; geometric solutions, including bisectors; and the fourth, miscellaneous category. . . . You will see that the cases are spread across the spectrum: seven equidistance; five modified equidistance; four geometric solutions; and five sui 45 generis. (Verbatim records, 8 September, 10.00 a.m., p. 34.) 39  Maritime Dispute (Peru v. Chile), Judgment of 24 January 2014, 68. See Declaration of Judge Wolfrum, 5: It may be questioned whether the subsection on the disproportionality test is really enlightening. It would have been equally appropriate just to employ a two-step procedure. Consideration of proportionality should then have been integrated into the considerations leading to the adjustment of the provisional equidistance line. Considerations in respect of proportionality should cover a broader spectrum than they do now and their separation from the reasoning leading to the adjustment of the equidistance line seems to be artificial. Both steps, the second and third, may result in an adjustment of the equidistance line and thus should be combined.

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to the Convention. In its judgment, the Tribunal dealt extensively with the relationship between dispute settlement and the work of that body.40 Beginning with the Libya/Tunisia case,41 the ICJ, followed by arbitral tribunals, has tended to downplay the role of ‘natural prolongation’ as an element of the definition of the continental shelf in article 76(1) of the Convention and consequently its relevance to the maritime delimitation.42 All cases prior to the Bay of Bengal case had dealt with the continental shelf within 200 nautical miles, where the distance criterion of the exclusive economic zone was considered a decisive factor in entitlement. However, many commentators predicted that in continental shelf delimitations beyond 200 nautical miles the geological/ geomorphological nature of the shelf would play an essential role.43 This was the situation facing the Tribunal, and indeed Bangladesh based its arguments inter alia on its shelf being the ‘most natural prolongation’.44 However, the Tribunal, after having decided that it had jurisdiction to delimit the shelf beyond 200 nautical miles, and dismissing any concerns that in doing so it would critically interfere with the work of the Commission on the Limits of the Continental Shelf, concluded: The Tribunal is of the view that the reference to natural prolongation in article 76, paragraph 1, of the Convention, should be understood in light of the subsequent provisions of the article defining the continental shelf and the continental margin. Entitlement to a continental shelf beyond 200 nm should thus be determined by reference to the outer edge of the continental margin, to be ascertained in accordance with article 76, paragraph 4. To interpret otherwise is warranted neither by the text of article 76 nor by its object and purpose.45

40  On the Commission’s work and the problems inherent in a situation where bodies with an entirely different mandate and constitution are dealing with the same area, see Eiriksson, supra note 14. 41  Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, ICJ Reports (1982): 18. 42  For an comprehensive treatment of this trend, see Franckx and Benatar, supra note 9, p. 453. 43  See ibid., pp. 454–457. 44  Judgment, para. 460. 45  Judgment, para. 437. See “Report and Recommendations to the Governments of Iceland and Norway of the Conciliation Commission on the Continental Shelf Area Between Iceland and Jan Mayen”, International Legal Materials 20 (1981): 797–842. The Commission, consisting of three prominent Conference negotiators, dealt extensively with entitlement under the natural prolongation criterion.

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Judge Gao considers these interpretations not only inaccurate and also stated more assertively than anything other courts and tribunals have said in previous cases.46 In this connection it should be recalled that the basic definition of the continental shelf of a coastal State in article 76(1) was set out in a single article of the ISNT as comprising “the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin”.47 This language was influenced by the articles on the continental shelf prepared by the Evensen Group.48 The Evensen articles also included provisions further describing the continental margin along with a provision on the seaward boundary of the shelf beyond 200 nautical miles, including as lines connecting points which are not more than 60 nautical miles from the foot of the continental slope. The articles also envisaged the creation of a ‘Continental Shelf Boundary Commission’ to review seaward boundaries. These further refinements of the outer limit were not, however, incorporated in the ISNT although it was understood that more certainty was required, not least because the outer limit of the continental shelf also constituted the landward limit of the International Seabed Area and therefore of the Common Heritage of Mankind.49 The negotiations had not reached a stage allowing advancement on the specifics of the outer limit, nor on the composition or powers of the proposed Commission. Much effort remained to be expended before agreement was reached on the detailed provisions now found in article 76(2) to (8) of the Convention. The negotiations turned on providing specificity on the outer limit of the continental shelf beyond 200 nautical miles, including to distinguish the continental shelf from the deep seabed and to establish limits on the application of the definition in the case of submarine ridges. Yet throughout the negotiations on the specific definition of the outer limit, the basic definition of the continental shelf set out in the ISNT remained unchanged and is now found as article 76(1). In the analysis of article 76(1) there does not appear to be an appreciation of the change made by Chairman Aguilar in the RSNT to paragraph 3 of what is now article 56 of the Convention which sets out the rights, jurisdiction and duties of the coastal State in the exclusive economic zone. In the ISNT (article 55) the paragraph read “The rights set out in this article shall be without 46  47  48  49 

See supra note 11. ISNT, article 62. Document Continental Shelf, 4th Revision, 6 May 1975. See text to note 16 supra. The Evensen text on the sharing of revenues from the exploitation of the non-living resources of the continental shelf beyond 200 nautical miles were also incorporated in the ISNT and formed the basis for article 82 of the Convention.

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prejudice to the provisions of part IV (The continental Shelf).” It was changed in the RSNT to read: “The rights set out in this article with respect to the bed and subsoil shall be exercised in accordance with Chapter IV (The Continental Shelf).” The effect of this change, it can be argued, was to emphasize the primacy of the natural prolongation element of the definition of the continental shelf.50 That this could result in a different line of delimitation for the seabed on the one hand and for the superjacent waters on the other hand may have been a concern for States involved in delimitation disputes. Certainly such a regime would be inconvenient and necessitate difficult resource exploitation negotiations51 and this may have been a factor in the decisions of States to request from international tribunals the determination of a single line for the exclusive economic zone and the shelf.52 Ultimately, perhaps it can be concluded that the Tribunal, in choosing not to depart from the approach adopted in earlier cases dealing with the shelf within 200 nautical miles, was motivated by the same desire for clarity, certainty and ease of application as is described above with respect to the methodology of maritime delimitation. Certainly, those of us who followed the complex and protracted deliberations at the Conference resulting in agreement on the paragraphs of article 76 on the other limit of the continental shelf and those following the work of the Commission on the Limits of the Continental Shelf when dealing with individual claims can sympathize with the Tribunal in this regard.53 50  See Judge Oda, supra note 17. 51  The Tribunal was not concerned with this element when setting out the ‘grey zone’ regime: The Tribunal recalls in this respect that the legal regime of the continental shelf has always coexisted with another legal regime in the same area. Initially that other regime was that of the high seas and the other States concerned were those exercising high seas freedoms. Under the Convention, as a result of maritime delimitation, there may also be concurrent exclusive economic zone rights of another coastal State. (Judgment, para. 475.)  But see Schofield and Telesetsky, supra note 9, p. 11: “Ultimately, the parties may be faced with a return to the negotiating table in spite of their expectations for a final and binding resolution by ITLOS.” 52  On how this may have influenced the parties to the Gulf of Maine case, see David A. Colson, “Delimitation of the Outer Continental Shelf between States with Opposite or Adjacent Coasts”, in Nordquist et al., op. cit., supra note 14, pp. 287–297. 53  See Churchill, supra note 9, pp. 150–151: However, in future cases it may be advisable for an international court to proceed more cautiously in deciding whether to delimit a continental shelf boundary beyond 200 miles. It may not be obvious that the states concerned have entitlements to a

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Concluding Comment

Nothing I stated above should be taken as detracting from my overall satisfaction with the work of the Tribunal in the Bay of Bengal case. I am particularly pleased that many of my former colleagues should have used the occasion to raise in their declarations and separate and dissenting opinions jurisprudential and other intellectual issues which they are uniquely qualified to do.54 It is as if they have been ‘champing at the bit’, awaiting the proper opportunity. Most importantly, I join many other commentators in acknowledging that the Tribunal has shown itself to be a most proper forum for the adjudication of maritime delimitation disputes.55 I am convinced that States will be encouraged by this case to make better use of the Tribunal in the future. continental shelf beyond 200 miles and that such entitlements overlap. To determine such matters may involve a court in having to make judgments about complex geological and geomorphological facts which it is ill-equipped to do. 54  In addition to the declarations and opinions cited above, see the Separate opinions of Judges Ndiaye and Cot. 55  See, for example, Churchill, supra note 9, p. 151: “This case may therefore encourage States parties to UNCLOS wishing to litigate maritime boundary disputes to consider using the ITLOS for this purpose”.

Chapter 30

The Decision on the Maritime Boundary between Chile and Perú: International Law Revisited María Teresa Infante-Caffi

Peru v. Chile. A Different Narrative

On the 27th of January 2014, the International Court of Justice rendered its decision on the “Maritime Dispute (Peru v. Chile)”,1 opening a vast array of questions about the operation of international law in judicial settings when dealing with the evolution of norms in a global ambit while the practice of the States had already been developed at a different pace on the regional stage. The case was also about treaties, the law of the sea and methods of maritime delimitation, but for analysts it was most and foremost about relationships between diplomacy and law whereas the status quo favored Chile.2 Reflections on this case could not be better suited for a book that honors Hugo Caminos, a distinguished jurist, judge and diplomat whose teaching and writing has been among the finest in the Law of the Sea. From a foreign policy perspective, the question for Chile was either to open a wide controversy on the whole range of elements encompassing the bilateral relations with Peru or, to confine the claim to an area where contests could be assessed according to their own merits and international law could provide a common ground for agreement. The decision to test Peru’s argument according to international law was then an alternative aimed to extracting Chile’s responses and counterarguments from the formal diplomatic sphere. On its part, Peru’s Memorial picked up some particulars of the history of the bilateral relations, conveying the message of a conflictive relationship spotted with uneven good neighbor practices. Alien to the question of the maritime boundary, the execution of the 1929 Treaty that put an end to the question of sovereignty over Tacna and Arica was introduced according to that perspective. The Law of the Sea was to repair wounds of the past. Chile’s comment on this reading of the bilateral history was given by the Agent in his opening 1  http://www.icj-cij.org/docket/index.php?p1=3&p2=3&k=88&case=137&code=pch&p3=4. 2  http://www.economist.com/news/americas/21595481-heres-grown-up-way-settle-longstanding-border-dispute-line-sea.

© koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004283787_031

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speech at the public sitting of 6 December 2014.3 Thus, it was apparent since the beginning that the narrative of each State would differ on various accounts. For Chile, to reopen what had been agreed was not reasonable and history should not be brought into consideration. In 2000, Peru’s disagreement with the status of the parallel passing through Hito No. 14 of the border with Chile was made official and public; Peru alleged that a map published by the Chile was not in conformity with the existing situation, whereas no treaty had settled the maritime boundary.

The ICJ Decision and the History of the Maritime Zone of 200‑Nautical Miles

As the subject matter of the case, the ICJ’s decision had to address facts and matters that apparently looked simple: whether or not a maritime boundary extended to 200-nautical miles had been set and which was the legal foundation for that assertion. In addition, analysts may have been tempted with the idea that the maintenance of peaceful and friendly relations between the parties would have been strengthened by the decision of the Court, as anticipated by a member of the Court.5 It is worth noticing that neither Peru nor Chile advanced before the tribunal the idea that the existing delimitation under dispute might entail a breach of their relations or that peace was being threatened. In this case, Peru’s application of 2008 contended that there was a bilateral legal controversy over “the delimitation of the maritime spaces between both 3  He said “Chile and Peru have lived together in peace for 130 years. We have worked together on innumerable occasions to further economic integration and development and to improve the lives of our peoples. Chile conducts its relations with Peru based on principles of good faith, mutual respect and observance of international agreements”. http://www.icj-cij.org/ docket/files/137/17210.pdf. 4  The Joint Report of the Delegations of the parties in 1969, subscribed an Act stating that “The undersigned Heads of Delegations of Chile and of Peru submit to their respective Governments the present Report on the state of repair of the boundary markers in the section of the Chile-Peru frontier which they have had the opportunity to inspect on the occasion of the works which they have been instructed to conduct in order to verify the location of Boundary Marker number one and to signal the maritime boundary.” The Hito is located at the “orilla del mar” as the successive Actas signed in 1930 by delegates and plenipotentiaries of Chile and Peru indicated. 5   Para. 18 of the Declaration of Judge Sepúlveda-Amor appended to the Judgment of 27th January 2014.

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countries, starting from the point where the land frontier between Peru and Chile meets the sea pursuant to the 1929 Treaty on Boundaries”. Then, it went on to request that the Court determine the maritime boundary on the basis of principles and norms of international custom; and that the Court recognize its exclusive sovereign rights over an area extending beyond 200 nautical miles of Chilean territory, considered high seas at that time. Chile responded that the maritime delimitation with Peru had been established by valid long-standing treaties between the parties, which had been enforced and implemented in law and in practice. These treaties were of a tripartite character and were adopted at a very earlier stage of the establishment of extended maritime zones up to 200-nautical miles. It was not indifferent to Chile that the legal literature6 and even publications by the United Nations,7 among others, together with the mentioning of the parallel as the existing limit in the South East Pacific in cases before the International Court of Justice,8 although non-binding as a direct source of the delimitation in the current case, did not show variations as to the existence of a full maritime boundary in place between Chile and Peru. The story of the case had to be traced back to 1947, when Chile and Peru issued concordant unilateral Declarations concerning an exclusive maritime zone over a maximum distance of up to 200 miles, reserving the right to extend it even further. The exclusiveness of the new zone derived from the sovereign nature of the rights which had been embedded into the political and legal strategy of the two coastal states. Moreover, Peru’s Proclamation of 1947 (Supreme Decree No. 781), established that its maritime zone should be measured ‘following the line of the geographic parallels’. This concept was recalled again in Supreme Resolution No. 23 of 1955. Chile had already used the word ‘perimeter’ which, read in conjunction with the former reference to parallels gave a sense of a delimited area to be possessed by a State. Chile affirmed that it [the area] should therefore be limited in the south by a line following the parallel of latitude corresponding to the point where the land boundary reached the sea. On the same vein, Chile asserted that articles III and IV of the Declaration of Santiago of 1952 on the Maritime Zone, had to be read in conjunction 6  R.R. Bundy, “State Practice in Maritime Delimitation”, in World Boundaries volume 5: Maritime Boundaries, ed. G. Blake (New Yersey, Barnes & Noble Books, 1994), 31. 7  United Nations, Office of Legal Affairs, Division for Ocean Affairs and the Law of the Sea, Handbook on the Delimitation of Maritime Boundaries (New York: UN, 2000). 8  So it was affirmed by the Federal Republic of Germany in the Continental Shelf case before the ICJ, in 1969.

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as applicable to the whole maritime zone and not only to islands projecting 200-nautical miles over a neighboring maritime zone. According to said articles, exclusive jurisdiction and sovereignty over each maritime zone was to encompass exclusive sovereignty and jurisdiction over the seabed and the subsoil thereof. Then, the Declaration remarked that: In the case of island territories, the zone of 200 nautical miles shall apply to the entire coast of the island or group of islands. If an island or group of islands belonging to one of the countries making the declaration is situated less than 200  nautical miles from the general maritime zone belonging to another of those countries, the maritime zone of the island or group of islands shall be limited by the parallel at the point at which the land frontier of the States concerned reaches the sea. The interpretation of that provision proved to be a difficult issue before the Court as the tribunal had to strike a balance between an explicit and an implicit agreement applicable to the delimitation without making clear what elements made the difference between the two concepts. The explicit reference to a delimitation line and the implicit delimitation character of the agreements was settled in favor of an implicit agreement enshrined in the explicit terms of the 1954 Agreement. A more in depth recourse to the proceedings of the 1952 Santiago Conference and the immediate diplomatic and domestic practice of the two States might have helped to shed light in this respect. It is noticeable that in this case the Court did not have to deal with allegations on the part of Chile that fishing, research and patrolling activities had given effect to a tacit agreement. There was no sign that Chile relied on a tacit agreement.9 The contextual approach on this matter could also be found in the Permanent Commission for the South Pacific setting, that was specifically created as an international organization by the Convention on the Organization of the Permanent Commission of the Conference on the Exploitation and Conservation of the Maritime Resources for the South Pacific signed by Chile, Ecuador and Peru, in Santiago, on 18 August 1952.10 The background of the Permanent Commission was directly related to the Declaration on the 9 

On tacit agreements: Hugh Thirlway, The Law and Procedure of the International Court of Justice. Fifty Years of Jurisprudence, Vol. II (Oxford: Oxford University Press, 2013), 1223–1225. 10  See Article 1 of the Convention on the Organization of the Permanent Commission of Conference on the Exploitation and Conservation of the Maritime Resources of the South Pacific signed in Santiago, on 18 August 1952.

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Maritime Zone of 1952, signed in Santiago on 18 August 1952 [known as the Santiago Declaration].11 A number of agreements and resolutions of the Com­ mission clearly indicated that there was no dispute as to the delimitation between the three parties. The Decision of the Court in 2014 followed a literal interpretation, thus giving a narrow delimiting effect to these articles while ignoring the problems that a limited effect underscored. Among others, the unsettled situation of the remaining area abutting the maritime zone of the neighboring country, and the rationale behind a line related to the point at which the land boundary reaches the sea, whichever the distance of said point with the targeted islands.12 Nevertheless, the conclusions of the Court show that judges of the majority were not indifferent to this framework. It is said in the decision that: What is important in the Court’s view, however, is that the arrangements proceed on the basis that a maritime boundary extending along the parallel beyond 12 nautical miles already exists. Along with the 1954 Special Maritime Frontier Zone Agreement, the arrangements acknowledge that fact.13 Further narrowing the scope of what has been agreed by the parties and striking a distinct point about the existence of a maritime delimitation, judge Sepúlveda14 was the one to allude to the historical context in which the 1954 Agreement was adopted, 11  No. 14758, Treaties and international agreements registered or filed with the Secretariat of the United Nations, UNTS Volume Number 1006-I. https://treaties.un.org/doc/ Publication/UNTS/Volume%201006/v1006.pdf. 12  “The process of interpretation, rightly conceived, cannot be regarded as a mere mechanical one of drawing inevitable meanings from the words in a text, or of searching for and discovering some preexisting specific intention of the parties with respect to every situation arising under a treaty . . . In most instances interpretation involves giving a meaning to a text not just any meaning which appeals to the interpreter, to be sure, but a meaning which, in the light of the text under consideration and of all the concomitant circumstances of the particular case at hand, appears in his considered judgment to be one which is logical, reasonable, and most likely to accord with and to effectuate the larger general purpose which the parties desired the treaty to serve.” Sir Humphrey Waldock, Special Rapporteur of the International Law Commission, 1964 Yearbook of the ILC, Vol. II, 53. He cites Part III of the Harvard Law School, Research in International Law, Law of Treaties, p. 946. 13  Paragraph 99. 14  http://www.icj-cij.org/docket/files/137/17940.pdf.

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when the concept of a 12-nautical-mile territorial sea entitlement had not attained general recognition and the very notion of an exclusive economic zone as later defined by the 1982 United Nations Convention on the Law of the Sea was foreign to international law. This argument twists the focus from the existence of a delimitation emerging jointly with the process of creation of extended maritime zones, to a more complex idea, which is the alleged lack of ground of the process of creation of new maritime zones. This approach would put the burden on the recognition or non-recognition status of said zones. In fact, none of the parties denied the evolution of the Law of the Sea; on the contrary, both stated highlighted the struggle to obtain support for the 200-nautical miles doctrine covering both, water column and the continental shelf; on the other hand, what they contended was the delimitation line and the methodology to which assign priority for its establishment, not the validity of said line at the time of adoption. It is also worth underscoring that Peru contested the scope and status of the arrangements embodied in documents officially signed in 1968 and 1969 by delegates of the parties, and approved by the respective Governments, to materialize the maritime boundary and build alignment towers to that purpose. Contrary to this, the Court admitted that the maritime boundary which the Parties intended to signal with the lighthouses’ arrangements was the parallel passing through Boundary Marker No. 1. It was noticed by the decision that both Parties implemented the recommendations of the 1969 Act and built the lighthouses as agreed, thus signaling the parallel passing through Boundary Marker No. 1. “The 1968–1969 lighthouse arrangements therefore, serve as compelling evidence that the agreed maritime boundary follows the parallel that passes through Boundary Marker No. 1”, says the judgment.15

Points on the Legal Background of the Case. History and the Law of Sea on Delimitation

In this respect, two subjects shall be addressed in this comment: a) Historical issues in the creation of a 200M maritime zone by Chile and Peru, Ecuador joining later, and the evolution of the Law the Sea and its bearing on the proclamations on extended maritime zones. These issues 15  Paragraph 174.

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are highlighted by the judgment although they are not specifically singularized by it. b) Equitable delimitation seen from the perspective of the existing agreements, as well as potential consequences of rules governing maritime delimitation and their application in the case. This is the background against which the ICJ’s decision is susceptible of analysis, while providing little information about the reasoning behind certain substantive paragraphs. This is the case of the limited extent of the parallel line and its relationship with the existing 200M maritime zone which the line is meant to delimit. There is then interest in examining certain issues raised by the decision which entail crucial points of international law. A first subject matter is the historical underpinning of the creation of a 200M maritime zone by Chile and Peru, to which Ecuador joined in 1952, and its bearing on the delimitation. In the current case, the contentions of the parties could not have been more separate from each other. In fact, while Peru sustained that the initial proclamations of 200M were nothing but a policy oriented doctrine to protect natural resources, Chile contended that the intention of the two States was to establish an extended maritime zone gifted with legal status. In view of the Court:16 According to Chile, the 1952 Santiago Declaration has been a treaty from its inception and was always intended by its signatories to be legally binding. Chile further notes that the United Nations Treaty Series indicates that the 1952 Santiago Declaration entered into force upon signature on 18 August 1952, with there being no record of any objection by Peru to such indication. The Court also noticed17 that Peru considered that the 1952 Santiago Declaration was not conceived as a treaty, but rather as a proclamation of the international maritime policy of the three States. Peru claimed that it was thus ‘declarative’ in character, but accepted “that it later acquired the status of a treaty after being ratified by each signatory (Chile in 1954, Ecuador and Peru in 1955) and registered as such with the United Nations Secretariat on 12 May 1976, pursuant to Article 102, paragraph 1, of the Charter of the United

16  Paragraph 46. 17  Paragraph 47.

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Nations”. Actually, the Court affirmed that it was no longer contested that the Declaration had a treaty character.18 Whether the maritime zones proclaimed in 1947 and referred to in the treaties of 1952 and further agreements were in accordance with international law, a matter that was much discussed by maritime powers in the late 1940s and early 1950s, was not the real issue in this case.19 The central issue was that Chile and Peru, together with Ecuador did establish a valid maritime zone among them and fought for its international recognition, both at the regional and at the world level. This was reflected in their respective legislations and invoked before third powers. The question at stake had more to do with the validity of the assertion made by Ambassador Bakula of Peru in 1986, about 40 years after the beginning of the process, written as a memorandum presented to the Ministry of Foreign Affairs of Chile, as part of a personal démarche. In his views: The current ‘200-mile maritime zone’ as defined at the Meeting of the Permanent Commission for the South Pacific in 1954 is, without doubt, a space which is different from any of the abovementioned ones in respect of which domestic legislation is practically non-existent as regards international delimitation. The one exception might be, in the case of Peru, the Petroleum Law (No. 11780 of 12 March 1952), which established as an external limit for the exercise of the competences of the State over the continental shelf ‘an imaginary line drawn seaward at a constant distance of 200 miles’. This law is in force and it should be noted that it was issued five months prior to the Declaration of Santiago. Ambassador’s memorandum admitted that the maritime zone extended up to 200‑nautical miles while postulating that it was something different from the one that had been agreed by the Third United Nations Conference on the Law of the Sea. It also postulated that the documents adopted by the parties did not address the delimitation of the zones. Bakula preached for an express and formal delimitation, a definitive one. Accordingly, should the maritime boundary as existed at the time have been harmed or weakened by the emergence of the maritime spaces as shaped in 18  Paragraph 48. 19  As early as in 1952, the Interamerican Juridical Committee had acknowledged that Chile and Peru had proclaimed national sovereignty over the seas adjacent to its coasts. Statement of Reasons accompanying the Draft Convention on Territorial Waters and Related Questions, 30 July 1952, 5–6.

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the process of the Third United Nations Conference on the Law of the Sea? This is something that the Court’s judgment does not address, but it leaves ground to question whether or not views of the majority was not to think as if this initiative had introduced doubts about the topics raised therein. It may have appeared that Chile did not take a clear stand towards differentiating between the politics dictated by the circumstances and the juridical content of Bakula’s words. The question raised by judge Bennouna at the end of the first round of the oral hearings focused on a different point, as he raised the question of the validity of the proclamations and related delimitations rather than on the issue of the continuity in time of the maritime zone proclaimed in 1947–1952 in the light of developments that took place some years later.20 While Peru stressed 20  “Do you consider that, as signatories of the Santiago Declaration in 1952, you could at that date, in conformity with general international law, proclaim and delimit a maritime zone of sovereignty and exclusive jurisdiction over the sea that washes upon the coasts of your respective countries up to a minimum distance of 200 miles from those coasts?” To the surprise of many, answers by the two States were different. Professor Tullio Treves speaking for Peru, stated that “Chile, Peru and Ecuador could make such a “proclamation”, but it would not have been in conformity with general international law at that time and, for the same reason, would not have been opposable to third States. Clearly, their claims were de lege ferenda. What the three signatories had in mind was to have the law in force at the time changed”. Hearings of 11 December 2012. Taking a different view, Professor Dupuy, speaking for Chile replied that: “10. Being aware that this was the state of the law, the three States therefore had recourse to an agreement, the one constituted by the Declaration but also by the agreements which accompanied it, in 1952, and followed it, in 1954. The Declaration solemnly proclaimed the objective of protecting natural resources and assigned each party its own area of jurisdiction, on the basis of the preliminary delimitations already asserted by Chile and Peru in 1947, and in keeping with the regional tradition of relying on geographic parallels. Hearings of 14 December 2012.  11. Given the constraints on the international positive law of the time, which stood in opposition to the protective and forward-looking aims of the three States concerned, it is necessary to draw a distinction between two aspects of the effect of the treaties which were concluded in Santiago in 1952 and then in Lima in 1954.  12. Inter se, inter partes, as Professor Condorelli said in one of his pleadings, that is to say between the parties, these treaties, beginning with the Declaration, are quite clearly a source of mutual obligations, whose régime is governed by the pacta sunt servanda principle.  13. With regard to third parties, however, the question arises as to whether they are enforceable, despite the fact that they can in principle be categorized as so-called objective treaties since they fix territorial albeit maritime boundaries”. Hearings of 14 December 2014.

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the point of a lege ferenda phenomenon arising from the 1947–1952 instruments, Chile approached the subject as having a regional effect and struggling to reach global support which it finally obtained. Again, the context of the approval of the Santiago Declaration sheds light when we read Ecuador’s clarification about ‘the dividing line of the jurisdictional waters’ as the parallel identified in the Santiago Declaration. Joint Dissenting Opinion sustains that this may be taken as a further confirmation that the maritime boundary would run up to 200 nautical miles along that parallel.21 This leads to the point about the relationship between the evolution of the Law the Sea and the proclamations of extended maritime zones already in place. This issue is certainly another aspect of the same coin. That is, did the law of the sea emerging from the major transformations of the 1960’s and 1970’s as globally accepted, produced a change in the legality of existing agreements which had already been adopted some years before and that the parties considered as still in force? While Peru invoked geography and Chile focused on the law of treaties, the discussion on delimitation was not centered on the role of effectivités and possession of the maritime area. This contrasts with the decision to take a stand for attributing importance to activities conducted during certain amount of time in the maritime zone. It is not the classic formula applied in territorial cases around ‘title v. effectivités’ factors,22 but a more practical intellectual exercise. In this respect, how much Chile’s control over the maritime area at the time of the adoption of the Declaration of Santiago and the 1954 Agreement, attracted the attention of the doctrine and of third States? The answer to this question appears related to the historical origin of the 200-nautical miles and its relationship with the emerging Law of the Sea in the context of the Third United Nations Conference. The influential Latin American doctrine never raised this point as a controversial one, but rather as a matter for harmonization.23

21  Paragraph 23. 22  M. Kohen, “La relation titres/effectivités dans la jurisprudence récente de la Cour Internationale de Justice (2004–2012)”, Unité et diversité du droit international. Ecrits en l’honneur du Professeur Pierre-Marie Dupuy, ed. Denis Alland, Vincent Chetail, Olivier de Frouville & Jorge E. Viñuales (Leiden: Martinus Nijhoff Publishers, 2014), 599–614. 23  Hugo Caminos, “Harmonization of pre-existing 200-mile claims in the Latin American region with the United Nations Convention on the Law of the Sea and its exclusive economic zone”, Inter American Law Review (1998–1999): 9–30.

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The ICJ’s decision quotes a declaration made by Chile, Peru, Ecuador and Colombia24 in 1982, in the context of the final stage of the Third United Nations Conference on the Law of the Sea, recalling: the universal recognition of the rights of sovereignty and jurisdiction of the coastal State within the 200-mile limit provided for in the draft Convention is a fundamental achievement of the countries members of the Permanent Commission of the South Pacific, in accordance with its basic objectives stated in the Santiago Declaration of 1952. This declaration still provides a logical answer to the question as to the legal continuity of the maritime zone at the time of conclusion of the Third Conference in 1982.25 How could it be possible that State parties acknowledge that the Santiago Declaration of 1952 had objectives based on the existence of rights of sovereignty and jurisdiction, praising that the outcome of said Conference was driven by the same principles, without conceding that its validity was not in jeopardy because of the imminent adoption of the United Nations Convention on the Law of the Sea? Another element to be highlighted from the ICJ’s decision is that, while it refers to the differentiated maritime spaces emerging from the new Law of the Sea, that is, the distinction between a territorial sea, an exclusive economic zone and the continental shelf, consequences of said nomenclature do not seem to have had an important bearing on delimitation. Nevertheless, the Court does seem to have paid some attention to the approaches that the parties had towards the status of the 200-nautical miles as a single maritime space or as a space composed of distinct zones. The maritime dominion as set out in Peru’s Constitution was one of the elements in this equation.26 24  Letter of 28 April 1982 from the representatives of Chile, Colombia, Ecuador and Peru to the President of the Conference, translated by the United Nations, document A/CONF .62/L.143. 25  References to correlates between the regional and global process may be found in The Exclusive Economic Zone. A Latin American Perspective, ed. F. Orrego Vicuña (Boulder: Westview Press, Inc., 1984). 26  The 1993 Peruvian Constitution, in its Title II, The State and the Nation, Chapter I, The State, the Nation and the Territory, reads: “Art. 54: The territory of the Republic is inviolable. It includes the soil, the subsoil, the maritime dominion and the superjacent airspace.  The maritime dominion of the State includes the sea adjacent to its coasts, as well as the bed and subsoil thereof, up to the distance of two hundred nautical miles measured from the baselines determined by the law. In its maritime dominion, Peru

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Paragraph 178 of the Judgment is indicative of this understanding. The Court says that While Chile has signed and ratified UNCLOS, Peru is not a party to this instrument. Both Parties claim 200-nautical-mile maritime entitlements. Neither Party claims an extended continental shelf in the area with which this case is concerned. Chile’s claim consists of a 12-nautical-mile territorial sea and an exclusive economic zone and continental shelf extending to 200 nautical miles from the coast. Peru claims a 200-nautical-mile ‘maritime domain’. Peru’s Agent formally declared on behalf of his Government that “[t]he term ‘maritime domain’ used in [Peru’s] Con­ stitution is applied in a manner consistent with the maritime zones set out in the 1982 Convention”. The Court takes note of this declaration which expresses a formal undertaking by Peru. This meaningful assertion has had a direct connection with the aftermath of the decision of the Court when questions related to the scope and limits of the execution and implementation were raised in both countries.

The Line: Confirmation and Revision

Together with the above referred focus, the Court’s judgment poses a question that goes to the heart of the discussion embedded in this case. That is, whether the delimitation in application between Chile and Peru was revisable in the light of the concept of an equitable solution. Or, as reflected in the dispositive of the decision, the extent of 80M of the parallel of Hito No. 1, followed by an equidistance line drawn from a point at 80M from the low water line on said parallel, was a result of a composed formula made up of nature, law and occupation of the seas. This issue contrasts with the Court’s acceptance of the point made by Chile in the sense that the maritime limit based on the parallel line was an all-purpose

exercises sovereignty and jurisdiction, without prejudice to the freedoms of international communication, in accordance with the law and the treaties ratified by the State.  The State exercises sovereignty and jurisdiction on the airspace over its territory and its adjacent sea up to the limit of two hundred miles, without prejudice to the freedoms of international communication, in conformity with the law and the treaties ratified by the State”.

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one, that is, that whichever the extent of the parallel, it divided the whole set of rights and jurisdictions appertaining to the maritime spaces in force. Albeit, the Court’s breaking of the parallel at the end of 80M from the base point is followed by an assertion mentioning the introduction of provisions contained in Articles 74, paragraph 1, and 83, paragraph 1, of the United Nations Convention on the Law of the Sea, “which, as the Court has recognized, reflect customary international law”.27 Then the judgment quotes the decisions rendered in the Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment, I.C.J. Reports 2001, p. 91, para. 167, and in the Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012 (II), p. 674, para. 139). The Court highlights that the texts of those provisions are identical, the only difference being that Article 74 refers to the exclusive economic zone and Article 83 to the continental shelf. The judgment goes on to recall the introduction of the methodology of the three steps to seek and equitable solution, enunciated by the Court in previous cases.28 This methodology—according to the Court—had to apply at the endpoint of the 80M parallel line to draw an equidistance line. The Court itself acknowledges that this is an unusual situation. The Court decided by majority that a parallel, which was already respected and accepted by Peru, was effective for the first 80M from the base point located on the low-water line of the latitude of Hito No. 1. In practical terms, the Court rejected the pretension that there had to be a different base point to draw the maritime boundary separate from said latitude. Subsequently, the ICJ decided a new equidistant boundary to the south-west, and for doing so, the Court established different parameters to measure the relevant area. In this process, the Court restrained the area which Peru presented as the relevant for delimitation from 164,925 km2 to 80,092 km2.

An Implicit Limit and an Explicit Text. The Absence of Practice in the Equation

The outcome of this decision is that Peru is able to extend its waters in areas that were subject to the exclusive economic zone of Chile or to the high seas

27  Paragraph 179. 28  These are the cases of the Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, ICJ Reports (2009): 101–103, paras. 115–122; and Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, ICJ Reports (2012) (II): 695–696, paras. 190–193.

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regime. Most of the fish in the disputed waters—mainly Pacific pilchard and mackerel—will stay in Chilean waters. A first reading of the decision brings to our minds the question of treaty interpretation and the wide range of possible answers that a tribunal can give. The interpretation of the will of the parties: shall it be more regulated or not? This is not a case from which lessons on such matter can be easily obtained. Another point is the relationship established by the judgment between the 1986 Bakula memorandum and the effect and validity of the practice. It is evident that the ICJ decision poses the question as to the relevance of the State practice to test the effectiveness of an existing delimitation line. This was in fact one of the core issues raised by the Bakula memorandum of 1986 consisting of the invitation to revise the prevailing situation. Despite its limited character it was considered by the Court as reducing “in a major way the significance of the practice of the Parties after that date”.29 Then, the Decision poses the question of the evidence needed to prove the existence of an agreement to which a party attaches legal force. Although the Court has had to deal with the theory of tacit agreements, this time the problem was not about a non-written agreement, but about the interpretation of existing agreements where the word ‘frontera’ was explicit and the practice of the two parties was publicly available. The temporal issue, which is not clearly treated as an inter-temporal one,30 is well reflected on the situation of the Agreement relating to a Special Maritime Frontier Zone, of 1954. It was not an isolated instrument, although it became famous due to its direct connection with the idea of exclusive areas of sovereignty and jurisdiction for each coastal participant State: 79. The Court considers that at this early stage there were at least in practice distinct maritime zones in which each of the three States might, in terms of the 1952 Santiago Declaration, take action as indeed was exemplified by the action taken by Peru against the Onassis whaling fleet shortly before the Lima Conference. On the matter of boundaries of the zones, as the Court observes, the 1954 Special Maritime Frontier Zone Agreement was at the forefront. The operative 29  Paragraph 142. 30  This dimension appears whenever a rule refers to a notion whose scope or meaning has changed over time. The Intertemporal Problem in Public International Law, Institute of International Law, Session of Wiesbaden, 1975. http://www.idi-iil.org/idiE/ resolutionsE/1975_wies_01_en.pdf.

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paragraph where the Court sees the opportunity to grasp the delimiting agreement is the following: “1. A special zone is hereby established, at a distance of [‘a partir de’] 12 nautical miles from the coast, extending to a breadth of 10 nautical miles on either side of the parallel which constitutes the maritime boundary [‘el límite marítimo’] between the two countries”. Moreover, the Court accepted that: On that issue, the terms of the 1954 Special Maritime Frontier Zone Agreement, especially Article 1, read with the preamble paragraphs, were clear. They acknowledge in a binding international agreement that a maritime boundary already exists. The Parties did not see any difference in this context between the expression ‘límite marítimo’ in Article 1 and the expression ‘frontera marítima’ in the Preamble, nor does the Court.31 Moreover, it is of significance that the Court opined that “In the view of the Court, there is nothing at all in the terms of the 1954 Special Maritime Frontier Zone Agreement which would limit it only to the Ecuador-Peru maritime boundary”.32 This Decision will be a classic for students of international law about the definition of a ‘tacit agreement’ versus a cemented expression of a boundary as contained in the 1954 Agreement on a Special Maritime Zone. And the Declaration by Judge Skotnikov will remain an important reference to this point: . . . the Court could have dealt with this in the same manner that it resolved the issue of whether the maritime boundary is all-purpose in nature, namely, “that [t]he tacit agreement, acknowledged in the 1954 Agreement, must be understood in the context of the 1947 Proclamations and the 1952 Santiago Declaration” (Judgment, paragraph 102). The extension of the parallel, based on discretionary assessments as to the area of fisheries and enforcement activities in earlier periods after the 1952–1954 treaties, is poorly supported by the evidence submitted before the Court. It could at least have been taken into consideration the fact that none of the enforcement measures adopted by Chile had been followed by protests on the part of Peru. Reservations as to the existence of an agreed boundary were only made since 2004. 31  Paragraph 90. 32  Paragraph 85.

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The fact that the majority of the Court agreed with the application of the current formulae to measure the maritime zone by arc-of-circles does not fully respond to the questions raised by the judgment regarding the correct interpretation of the parallel of latitude as indicated in the Declaration of Santiago in 1952. In this respect, the fact that Peru never argued about a potential or actual overlap with Chile due to the projection of its coast by means of the method of arcs-of-circles, may not have been unnoticed in The Hague. This element—raised by the joint Dissenting Opinion—33 was not taken into consideration by the opinion of the majority. At the end, after Chile and Peru expressly declared its commitment to comply with the decision, the analysis of its paragraphs and those of the Declarations and Opinions may appear more academic than realistic. Nonetheless, the aftermath shows that complying with an international judgment meant not only diplomatic exchanges but also highly substantive legal and technical issues, comprising technical aspects such as coordinates, basepoints, baselines, adaptation of domestic norms, etc. Although not related to the limit itself, whether the Law of the Sea will be a framework for cooperation or an arena to disagree, remains in the hands of the Parties.

33  Paragraph 14. The joint dissenting opinion was authored by Judges Xue, Gaja, Bhandari and Judge ad hoc Orrego Vicuña.

Chapter 31

Some Remarks on the Territorial and Maritime Dispute (Nicaragua v. Colombia) Case Rafael Nieto-Navia*

Historical Background1

On March 24, 1928, Colombia and Nicaragua signed a treaty on ‘territorial issues’ (‘the treaty’ or ‘the Esguerra-Bárcenas treaty’). The relevant part reads as follows: The Republic of Colombia recognises the full and entire sovereignty of the Republic of Nicaragua over the Mosquito Coast between Cape Gracias a Dios and the San Juan River, and over Mangle Grande and Mangle Chico Islands in the Atlantic Ocean (Great Corn Island and Little Corn Island). The Republic of Nicaragua recognises the full and entire sovereignty of the Republic of Colombia over the islands of San Andrés, Providencia and Santa Catalina and over the other islands, islets and reefs forming part of the San Andrés Archipelago. The present Treaty does not apply to the reefs of Roncador, Quita sueño and Serrana, sovereignty over which is in dispute between Colombia and the United States of America.2 The treaty was aimed at putting an end to a long-lasting territorial dispute. As there was a dispute between Colombia and the United States of America

* The author thanks Mr. Ramesh Gajraj for his help in the writing of this article. 1  A more detailed history can be found in the International Court of Justice (‘ICJ’ or ‘the Court’) Judgment on Preliminary Exceptions, Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections, 13 December 2007, Judgment (“Preliminary Exceptions Judgment”), paras. 15–32. See also, R. Nieto-Navia, “La decisión de la Corte Internacional de Justicia sobre excepciones preliminares en el caso de Nicaragua v. Colombia”, 2 Anuario Colombiano de Derecho Internacional, ed. Ricardo Abello Galvis, (Bogotá: Asociación Cavelier del Derecho/Universidad del Rosario, 2009), 11–57. 2  Translation by the Secretariat of the League of Nations.

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concerning certain reefs, those were excluded from the treaty and Nicaragua accepted that it had no rights to them.3 The instruments of ratification of the 1928 Treaty were exchanged in Managua on 5 May 1930. The Protocol stipulated that “the San Andrés and Providencia Archipelago [. . .] does not extend west of the 82nd degree of longitude west of Greenwich.”4 On 6 December 2001, Nicaragua filed in the International Court of Justice (‘the Court’) an Application instituting proceedings against Colombia. In this Application the Court was asked to adjudge and declare: First, that the Republic of Nicaragua has sovereignty over the islands of Providencia, San Andrés and Santa Catalina and all the appurtenant islands and keys, and also over the Roncador, Serrana, Serranilla and Quitasueno keys (in so far as they are capable of appropriation); Second, in the light of the determinations concerning title requested above, the Court is asked further to determine the course of the single maritime boundary between the areas of continental shelf and exclusive economic zone appertaining respectively to Nicaragua and Colombia, in accordance with equitable principles and relevant circumstances recognized by general international law as applicable to such a delimitation of a single maritime boundary. [. . .] the principal purpose of this Application is to obtain declarations concerning title5 and the determination of maritime boundaries.6 On December 13, 2007, the Court issued its Judgment on the Preliminary Objections. There was a treaty in question and the Court decided at this stage 3  On 10 April 1928, Colombia and the United States exchanged the so-called Olaya-Kellogg notes concerning the status of Roncador, Quitasueño and Serrana. The note contained an understanding according to which Colombia would not object to the maintenance by the United States of the established services to aid navigation, and the United States would not object to the utilization by Colombian nationals of the waters appurtenant to the islands for the purpose of fishing. On September 8, 1972 the notes were derogated by the Vásquez-Saccio treaty and attached notes, in which the United States renounced in favour of Colombia any and all claims to sovereignty on the reefs but declared that the physical status of Quitasueño—being permanently submerged at high tide- was not subject to sovereign appropriation. 4  Translation by the Secretariat of the League of Nations. 5  In its Statement before the Court, Nicaragua said that “[T]here is therefore no doubt that the issue of title is not the subject-matter of the dispute but a necessary prerequisite”, Written Statement of the Government of Nicaragua, vol. I, paras. 3.41 and 3.42. 6  Nicaragua, Application instituting Proceedings, paras. 8–9. Emphasis added.

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that the 1928 Treaty was valid and in force and, consequently, that the big islands (San Andrés, Providencia and Santa Catalina) were subject to Colombian sovereignty. The Court considered that because, as “[t]hat matter has been settled by the Treaty”, it did not have jurisdiction.7 However, the Court considered “that the first paragraph of Article I of the 1928 Treaty [. . . does] not provide the answer to the question as to which maritime features apart from the three big islands form part of the San Andrés Archipelago over which Colombia has sovereignty”.8 Since the text of second paragraph of article 1 of the treaty clearly states that the treaty ‘does not apply’ to Roncador, Quitasueño and Serrana, the Court decided that it had jurisdiction on the matter.9 Regarding the 82nd meridian, Nicaragua had alleged that it did not effect a maritime delimitation but only fixed the western limit of the Archipelago. According to the words of Nicaragua’s Minister for Foreign Affairs “during the ratification debates in Nicaragua’s Senate, [it was] stated that the provision concerning the 82nd meridian ‘does not reform the [1928] Treaty, because it only intends to indicate a limit between the archipelagos that had been the reason for the dispute’.”10 Nicaragua added “that the reference to the 82nd meridian could not have effected a maritime delimitation since the concepts of continental shelf and exclusive economic zone were at the time still unknown under international law.”11 The Court decided that “the terms of the Protocol, in their plain and ordinary meaning, cannot be interpreted as effecting a delimitation of the maritime boundary [. . .] That language is more consistent with the contention that the provision in the Protocol was intended to fix the western limit of the San Andrés Archipelago at the 82nd meridian.” It added that “[i]n other words, the ‘dispute’ to which the Protocol refers relates to the Mosquito Coast along with the San Andrés Archipelago; does not refer, even by implication, to a general maritime delimitation.”12 No attempt was made by the Court to comment on the words of the Nicaraguan Foreign Minister during the debates on the treaty. Instead, it believed that when ratifying the treaty the Colombian agents were so reckless to have accepted that the Archipelago did not extend west of the 82nd degree

7 

Preliminary Exceptions Judgment, par. 90. Vice-President Al-Khasawneh considered that the validity of this territorial treaty should not be considered at this preliminary stage. Dissenting Opinion of Vice-President Al-Khasawneh, paras. 1–2. 8  Id., para. 97. 9  Id., para. 104. 10  Id., para. 111. Emphasis added. 11  Id., para. 112. 12  Id., para. 117. Emphasis added.

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of longitude west of Greenwich and that Nicaragua therefore could extend east of the meridian. The Court implicitly expressed this belief in the judgment on the merits. Anyway, according to Article 79, paragraph 9, of the Rules, the Court was not allowed to take this decision at this stage of the proceedings.

The Judgment on the Merits

On November 19, 2012, the Court delivered its Judgment on the merits of the dispute. As previously seen, the Court issued its decision concerning the cays and reefs, on Roncador, Quitasueño and Serrana and of course on the Nicaraguan application—including the fate of the 82nd meridian.

The Issue of the Competence on a New Claim

Article 40 of the Statute and 38 of the Rules require that the Applicant indicate the subject of the dispute. From the very beginning this subject has to be clear as the competence of the Court depends on it (article 36 of the Statute). In the Application of 6 December 2001 Nicaragua requested inter alia that the Court determine the course of the single maritime boundary between the areas of continental shelf and exclusive economic zone appertaining respectively to Nicaragua and Colombia, in accordance with equitable principles and relevant circumstances recognized by general international law as applicable to such a delimitation of a single maritime boundary.13 However, in the Reply of 18 September 2009 and in the final oral submissions of 1 May 2012, Nicaragua requested that the Court declare that “[t]he appropriate form of delimitation, within the geographical and legal framework constituted by the mainland coasts of Nicaragua and Colombia, is a continental shelf boundary dividing by equal parts the overlapping entitlements to a continental shelf of both Parties.”14 13  Application, para. 8. 14  Judgment on the Merits, para. 17. In her Separate Opinion, Judge Doneghue points out how “without explanation [Nicaragua] excluded from consideration the continental shelf entitlements generated by the Colombian islands of San Andres, Providencia and Santa Catalina (which the parties agreed generate continental shelf entitlements) in the area

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As Colombia argued and Judge Owada pointed out in his Dissenting Opinion: “this has fundamentally changed the subject-matter of the dispute which Nicaragua originally asked the Court to decide”.15 The dissenting Judge remarked that “[t]he essence of the situation in the present case is that the Applicant attempted to replace the original formulation of the claim submitted to the Court in its Application by a newly formulated, ostensibly different, claim relating to the existing dispute. In this sense, the present case is unique and has no exact jurisprudential precedent of the Court.”16 The Court accepted that “from a formal point of view, the claim made in Nicaragua’s final submission [. . .] is a new claim” but, instead of rejecting it, added that this “does not, in itself, render the claim inadmissible.” In Judge Owada’s words, “[r]elying largely upon the argument of the Applicant, the Judgment states that ‘the Application defined the dispute as ‘a group of related legal issues subsisting between the Republic of Nicaragua and the Republic of Colombia concerning title to territory and maritime delimitation’”17 to conclude that “the [revised] claim [. . .] falls within the dispute between the Parties relating to maritime delimitation and cannot be said to transform the subject-matter of that dispute.”18 Referring to Certain Phosphate Lands in Nauru, a case in which the Court concluded that “the Nauruan claim . . . is inadmissible inasmuch as it constitutes, both in form and in substance, a new claim, and the subject of the dispute originally submitted to the Court would be transformed if it entertained that claim,”19 Judge Owada says that “[i]f the Court were to accept thisr adical change in the Applicant’s submission, then the whole issue of maritime delimitation would acquire a totally different legal character, not only in form but also in substance.” Most important, he refers “to the unsettled doctrine of how to effect a maritime delimitation of overlapping areas of continental shelf entitlements between two States claimed on the strength of different legal bases by each Party—one claim based on the criterion of natural prolongation extending beyond 200 nautical miles from the baseline of the coast, the other based on the criterion of pure distance. No State practice has developed and beyond 200 nautical miles of Nicaraguan coast”. Separate Opinion of Judge Doneghue at para. 13. 15  CR 2012/12. 16  Dissenting Opinion of Judge Owada, para. 6. 17  Application, para. 1. 18  Judgment on the Merits, paras. 108–111. Emphasis added. “Nowhere in the Application is to be seen what concretely is the dispute that the Applicant is envisaging to refer to the Court.” (Owada’s Dissident Vote, para. 16). 19  Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judg­ ment, p. 267, para. 70).

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no jurisprudence exists on this point. Yet another difficulty the Court will have to face is the question of applicability velnon of the relevant prescriptive conditions contained in UNCLOS, especially its Article 76, to the extent that one of the Parties, Colombia, is not a party to the Convention.”20 The Court finally rejected the Nicaraguan request—not for the procedural issues but for the essential legal nature of the claim, which is a totally and new anomalous decision.21

The North Sea Continental Shelf Judgment

Article 38 of the Statute states that the function of the Court “is to decide in accordance with international law such disputes as are submitted to it [but] [t]his provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.” The North Sea Continental Shelf Judgment22 is the starting point to the analysis of the special circumstances and equity in the matter of delimitation of maritime and submarine areas. In 1964 and 1965 Germany, The Netherlands and Denmark signed some continental shelf delimitation treaties up to a limited distance of the coast (25–30 NM), using the equidistance criterion, as established in article 6.2 of the 1958 Convention on the Continental Shelf,23 which reads: 2. Where the same continental shelf is adjacent to the territories of two adjacent States, the boundary of the continental shelf shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary shall be determined by application of the principle of equidistance from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured. 20  Dissenting Opinion of Judge Owada, paras. 20–21. 21  Judgment on the Merits, chapter IV. 22  “North Sea Continental Shelf Judgment”, ICJ Reports (1969: 3). See Eustache, F., “L’Affaire du Plateau continental de la Mer du Nord devant la Cour international de Justice”, 74 RGDIP (1970): 560; W. Friedmann, “The North Sea Continental Shelf Cases, A Critique”, 64 AJIL (1970): 229; F., Monconduit, “Affaires du plateau continental de la mer du Nord”, 15 AFDI (1969): 213. 23  United Nations, Treaty Series, vol. 499, 311. Germany was not a party to the Geneva Convention.

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However, Germany considered that, taking into account the length and concavity of the coastline, the equidistance principle at a longer distance was inequitable. Germany contended that each of the States concerned should have a ‘just and equitable share’ of the available continental shelf, in proportion to the length of its sea-frontage. As the States could not reach an agreement they decided to submit the case to the Court. The Court was requested to state the principles and rules of international law applicable, and the States undertook to carry out thereafter the delimitations on the basis decided by the Court.24 The Court decided that article 6 of the 1958 Convention was not customary law and was not binding on Germany,25 that the equidistance principle was not inherent in the basic doctrine of the continental shelf or a rule of customary international law.26 Instead it decided that According to a well-established principle of law recognized by both sides in the present case, mere proximity confers per se title to land territory. What confers the ipso jure title which international law attributes to the coastal State in respect of its continental shelf, is the fact that the submarine areas concerned may be deemed to be actually part of the territory over which the coastal State already has dominion, in the sense that, although covered with water, they are a prolongation or continuation of that territory, an extension of it under the sea27 [. . .] There was no question of the Court’s decision being ex aequo et bono. It was precisely a rule of law that called for the application of equitable principles, and in such cases as the present ones the equidistance method could unquestionably lead to inequity [. . .] The Court comes next to the rule of equity. The legal basis of that rule in the particular case of the delimitation of the continental shelf as between adjoining States has already been stated. It must however be noted that the rule rests also on a broader basis. Whatever the legal reasoning of a court of justice, its decisions must by definition be just, and therefore in that sense equitable. Nevertheless, when mention is made of a court dispensing justice or declaring the law, what is meant is that the decision finds its objective justification in considerations lying not outside but within the rules, and in this field it is precisely a rule of law that calls for the application of equitable principles. 24  As cited in the Judgment at p. 7. 25  North Sea Case Judgment, paras. 21–36. 26  Id., paras. 81–82. 27  Id., para. 43.

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There is consequently no question in this case of any decision ex aequo et bono, such as would only be possible under the conditions prescribed by Article 38, paragraph 2, of the Court’s Statute.28 This Judgment was fully taken into account when the Third United Nations Convention on the Law of the Sea, UNCLOS III, was adopted in 1982 (‘UNCLOS’). When defining the continental shelf, article 76.1 incorporates the concept of “natural prolongation of the land territory”. Article 83 states that “[t]he delimitation of the continental shelf between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law in order to achieve an equitable solution”.29 However, as has already been pointed out, Colombia is not a party to the Convention. The decision on the limits in the case under analysis was based on equity30 as stated in the UNCLOS.

The Decision on the Limits

The 82nd W Meridian and the Median Line The Nicaraguan Memorial, the Colombian Counter-Memorial and the Colombian Rejoinder refer widely to the 82nd W. Meridian. Mainly, Colombia argued that the Meridian “constitutes an important factor to be taken into account in assessing where an equitable delimitation lies.”31 However, as “the Court concluded in its Judgment on the Preliminary Objections [. . .] the plain and ordinary meaning of [the reference to the Meridian in the Protocol of Ratifications] cannot be interpreted as effecting a delimitation of the maritime boundary between the Parties”.32 28  Id., para. 88. On the issue of decisions ex aequo et bono there are two classical works: K., Strupp, “Le droit du juge international de statuer selon l’équité”, 33 R des C. (1930 III): 351–478; and M. Habitch, “Le pouvoir du juge international de statuer ‘Ex Aequo et Bono’”, 49 R des C (1934 III): 277–371. 29  On this matter, see M.D. Blecher, “Equitable Delimitation of Continental Shelf”, 73 AJIL (1979), pp. 60–88 and L.D.M. Nelson, “The Roles of Equity in the Delimitation of Maritime Boundaries”, (84) AJIL (1990), pp. 837–858. 30  “[J]urisdiction in the international sphere depends entirely upon the agreement of the parties [. . .] The judge’s mandate is limited strictly [and] his powers to apply equity may be limited”. R. Lapidoth, “Equity in International Law”, Asil, 81 Proceedings of the Annual Meeting (April 8–11, 1987), 139. 31  Colombian Counter-Memorial, paras. 8–58. 32  Id., paras. 8–62.

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The Colombian government decided to propose a delimitation based on a median line between the Nicaraguan coast and islands, and the archipelagic islands and islets. This line is very close to the one that the Court used as a first step to reach its demarcation line.33 The Court relied on the Maritime Delimitation in the Black Sea case and said that “[a]t this initial stage of the construction of the provisional equidistance line the Court is not yet concerned with any relevant circumstances that may obtain and the line is plotted on strictly geometrical criteria on the basis of objective data.”34 However, it adjusted the Colombian median line that has one point in Quitasueño because “its use in the construction of the provisional median line would push that line significantly closer to Nicaragua” and disregarded Serrana because “[a]lthough larger than Quitasueño, Serrana is also a comparatively small feature, whose considerable distance35 from any of the other Colombian islands means that placing a base point upon it would have a marked effect upon the course of the provisional median line which would be out of all proportion to its size and importance.”36 How can the preceding be described as ‘objective data’? On the other hand, “[s]ince the islands [adjacent to the Nicaraguan coast] are located further east than the Nicaraguan mainland, they will contribute all of the base points for the construction of the provisional median line.”37 Hence, the Court decided to construct its provisional median line by reference to the base points which it considered appropriate,38 i.e., adjusting the line according to the relevant circumstances that, according to its own criteria, should lead to an equitable result.39 (para. 205) The first of these circumstances was the lengths of the respective coasts (in this case the Nicaraguan coast and the small lengths of the Colombian islands considered separately and not as an archipelago). “[A] substantial difference in the lengths of the parties’ respective coastlines may be a factor to be taken into consideration in order to adjust or shift the provisional delimitation line” (Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. 33  See sketch-maps No. 3 and 8, Judgment on the Merits. 34  Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, ICJ Reports (2009): 101, para. 118. 35  Emphasis added. “[I]t lies approximately 45 nautical miles to the north of Roncador” (Judg­ ment on the Merits, para. 24[d]). 36  Judgment on the Merits, para. 202. 37  Id., para. 201. 38  Id., para. 200. 39  Id., para. 205.

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Nigeria: Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002, p. 446, para. 301; emphasis added).40 The Court added that “taking account of the disparity of coastal lengths does not mean a direct and mathematical application of the relationship between the length of the coastal front [of the Parties]” (Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway, Judgment, I.C.J. Reports 1993, p. 69, para. 69).41 In the cited case it is clear that Jan Mayen is an island and not an archipelago.42 After stating that “the Nicaraguan mainland and fringing islands, and the Colombian islands, are located on the same continental shelf”43 but the Colombian “islands should not be treated as though they were a continuous mainland coast stretching for over 100 nautical miles and cutting off Nicaraguan access to the sea-bed and waters to their east”44 the Court decided that “[a]n equitable solution requires that each State enjoy reasonable entitlements in the areas into which its coasts project. In the present case, that means that the action which the Court takes in adjusting or shifting the provisional median line should avoid completely cutting off either Party from the areas into which its coasts project.”45 Regarding other relevant circumstances, the Court said that “[t]he Court does not consider that the conduct of the Parties in the present case is so exceptional as to amount to a relevant circumstance which itself requires it to adjust or shift the provisional median line.”46 The Court disregarded as well the security and law enforcement considerations invoked by Colombia because “[. . .] . . . control over the exclusive economic zone and the continental shelf is not normally associated with security considerations and does not affect rights of navigation.”47 40  Note of the original. Id. para. 209. 41  Note of the original. Id. para. 210. 42  In fact, it was a delimitation between Greenland and Jan Mayen, a Norwegian island inhabited by 25 technical people of a meteorological station (para. 15). The 200 NM from the base lines of each territory overlapped (Judgment, Sketch-map No. 1, and para. 18). The lengths of the coastal fronts of Greenland and Jan Mayen, were: Greenland, approximately 504.3 kilometres; Jan Mayen, approximately 54.8 kilometres. Thus the ratio between the coast of Jan Mayen and that of Greenland was 1 to 9.2/9.1 depending on certain calculations (para 61). “[I]n Norway’s view, there [was] no reason to require that the ratio of coastal lengths should betaken into consideration in delimitation as a relevant determinative circumstance, or even as a relevant circumstance tout court.”(para. 63). 43  Judgment on the Merits, para. 214. 44  Id., para. 215. 45  Id., para. 216. 46  Id., para. 220. 47  Id., paras. 221–222.

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Colombia claimed as well the access of the native population to the fisheries in the area where it has fished for centuries, but the Court, with no explanation, “consider[ed] that the present case d[id] not present issues of access to natural resources so exceptional as to warrant it treating them as a relevant consideration.48 In paragraph 160 the Court made reference to the maritime boundary “established by the Court in its 2007 Judgment (Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007 (II), pp. 760–763)”, but only to recall that there was an agreement between Colombia and Jamaica that was res inter alios acta for Nicaragua. An intervention request of Honduras in the present case was rejected by the Court. It should be recalled that there was a treaty between Colombia and Honduras, which was signed on August 2, 1986, and entered into force on December 19, 1999. The limit was the 14o 59’ 08’’N parallel starting in the 82o 00’ 00’’W meridian (which was the limit between Colombia and Nicaragua according to the 1928 Esguerra-Bárcenas treaty in eastern direction until the 79o 56’ 00’’W meridian and afterwards to the north respecting the areas agreed as a common zone between Colombia and Jamaica.49 When deciding the case between Nicaragua and Honduras the Court decided a limit through a bisector line starting at the end point of the land limit between the two States in NE direction, interrupted only by some arcs generated by maritime areas of some Honduran islands. According to the Court “any delimitation between Honduras and Nicaragua extending east beyond the 82nd meridian and north of the 15th parallel (as the bisector adopted by the Court [did]) would not actually prejudice Colombia’s rights because Colombia’s rights under this Treaty do not extend north of the 15th parallel.”50 The Court’s delimitation left a triangle between the bisector line and the 14o 59’ 08’’N parallel, a maritime area that belonged to Honduras and that the Court assigned to Nicaragua. The words of the Court could be understood to mean that the limit at the parallel subsisted, as it should according to the customary law on succession of states in respect of treaties.51 In the case under consideration, Honduras was the predecessor 48  Id., para. 223. 49  D. Uribe Vargas, Mares de Colombia (Bogotá: Universidad de Bogotá, 2001), 185–192; K.G. Charney & L. Alexander, ed., International Maritime Boundaries, vol. 1 (Dordrecht: Martinus Nijhoff, 1993–2005), 503–518. 50  “Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment”, ICJ Reports (2007): 659 at para. 316. 51  The 1978 Vienna Convention on Succession of States in respect of Treaties (17 ILM (1978), pp. 1488–1517) was not and is not in force between the two States. “[I]l y a succession

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State and had sovereign rights on a maritime area which was transferred by the Court to Nicaragua, the successor State. That area had a limit according to the Honduras-Colombia treaty and the successor ‘inherited’ the rights but also the obligations. But, in the Court’s decision, the 14o 59’ 08’’N parallel limit of Honduras and Colombia, which had been largely discussed by the parties, unexplainedly disappeared.52 The Court concluded “that the boundary of the relevant area in the north follows the maritime boundary between Nicaragua and Honduras, laid down in the Court’s Judgment of 8 October 2007.”53 For some reason, the Colombian legal advisors before the Court did not argue this point during the case with Nicaragua. In paragraphs 160–163 of the present case under analysis, the Court made detailed reference to the treaties in force between Colombia and other States in the area, namely Colombia-Jamaica and Colombia-Panamá and to the nonratified treaty between Colombia and Costa Rica. The Court considered these treaties as “res inter alios acta so far as Nicaragua is concerned.”54 The Court accepted the Colombian argument that those treaties implied recognition by those States of “Colombian entitlements in parts of the relevant area which the Court should take into account in the present case.” However, the Court, arguing the principle res inter alios acta, did not agree d’États au sens propre lorsque, en vertu d’une mutation territoriale, certains droits et obligations internationaux du prédécesseur à l’égard de tiers se trouvent transférés au succeseur par la force d’une norme de droit international general qui prévoit ce transfert, et ce indépendamment de toute manifestation de volonté du prédécesseur, du successeur ou d’États tiers.” A. Gonçalves Pereira, La Succession D’états en Matière de Traité (Paris: Pedone, 1969), 11. “The term means the succession of one State to the rights and obligations of another State as a result of the extension of its supreme power over territories which until then were under the sovereignty of the other State.” W. Fiedler, “State Succession”, in R. Bernhardt, ed., Encyclopedia of Public International Law, volume IV (Oxford: Oxford University Press, 2000), 641–656. The bibliography is very extensive. For the practice before the Convention see D.P. O’Connell, The Law Of State Succession, (Cambridge: Cambridge University Press, 1956); J.D. González Campos, “Algunas consideraciones sobre problemas de sucesión de Estados”, 3 Revista Española de Derecho Internacional (1963); United Nations, Materials on Succession of States, UN Doc. ST/LEG/ SER. B/14 (1967). 52  Territorial and Maritime Dispute between Nicaragua and Honduras, (Sketch-map No. 7, Course of the Maritime Boundary). 53  The Court considered that Bajo Nuevo and Serranilla “[. . .] fall outside the relevant area for the purposes of the present case.” Judgment on the Merits, para. 164. 54  Id., para. 162.

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that that recognition amounted to a relevant circumstance.55 The Court stated that “The Judgment by which the Court delimits the boundary addresses only Nicaragua’s rights as against Colombia and vice versa and is, therefore, without prejudice to any claim of a third State or any claim which either Party may have against a third State.”56 In his Declaration, Judge Xue clearly points out that in the southern section of the delimitation made by the Court it was not sufficient to rely on the res inter alios acta principle in order not to affect the rights of third States. Judge Xue concludes that “in my view, the boundary should stop at point 8 with an arrow pointing eastward” as has been the practice of the Court in other cases.57 Judge Xue says: [F]rom Point 8 to further east, the boundary line will enter into the area where potentially the maritime entitlements of three or even four States may overlap, as coastal projections of Nicaragua and Colombia, as well as those of Costa Rica and Panama, all extend to that area. Regardless of being mainland coasts or islands, they all enjoy full and the same maritime entitlements under general international law. That Colombian entitlements do not go beyond the treaty boundaries with third States does not mean third States do not have interest against Nicaragua in that relevant area above the treaty boundaries. Costa Rica made that point clear in its request for permission to intervene. Even though Panama did not intervene, the same claim could also be made [. . .] Therefore, the costal relationship between the Parties and the third States in the southern area requires special consideration. By restricting the coastal projections of Colombian islands against those of the Nicaraguan coast, the Court also unduly restricts the coastal projections of Colombian islands against those of the other two third States which, in my opinion, has gone beyond the jurisdiction of the Court in this case. The principle res inter alios acta and Article 59 of the Statute do not help in the present situation [. . .] The boundary line in the south would virtually produce the effect of invalidating the existing agreements on maritime delimitation that Colombia has concluded with Panama and Costa Rica respectively and drastically changing the maritime relations in the area.58 55  Id., paras. 226–227. 56  Id., para. 228. 57  Declaration of Judge Xue at para. 11. 58  Id., paras. 12, 13 and 15.

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The Archipelago and the Delimitation This is probably the time to deal with the position of the Court regarding the Archipelago. It is useless to calculate how many times, since the very text of the 1928 treaty, the word ‘archipelago’59 is used by the parties and by the Court in the proceedings of this case. We all know what an archipelago is. But it is not easy to define it because of the different features that each of them shows from geopolitical, economic and geographical factors. Article 7 of UNCLOS refers to “a fringe of islands along the coast in its immediate vicinity” as one of the features to be considered when drawing the straight baselines. Article 46 defines ‘archipelago’ as “a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such.” UNCLOS, however, does not refer to the outlying and dependent archipelagos but to those that by themselves constitute a State.60 Be that as it may, the question about the composition of the Archipelago cannot, in the view of the Court, be definitively answered solely on the basis of the geographical location of the maritime features in dispute or on the historical records relating to the composition of the San Andrés Archipelago referred to by the Parties, since this material does not sufficiently clarify the matter [. . .] In particular, the historical records do not specifically indicate which features were considered to form part of that Archipelago.61 After analyzing the documents, the Court concluded that Colombia “acted à titre de souverain in respect of the maritime features in dispute”62 and 59  Del griego αρχιπέλαγος, “sea studded with islands”. See S. Kopela, Dependent Archipelagos in the Law of the Sea (Leiden-Boston: Martinus Nijhoff, 2013), 1. 60  Applying the UNCLOS rules to this type of archipelagos is not an easy task and, in the opinion of many authors, a useless exercise. Even before the UNCLOS many States applied straight baselines to their dependent archipelagos. See, S. Kopela, op. cit., 99–148. “[. . .] states have applied the straight baseline concept exceeding the formalistic conditions of article 7 [of the UNCLOS] with a view of encircling the whole group of islands and considering it as a uniform whole” (Id., 116). However, Colombia never applied the straight baselines to the San Andres Archipelago and, consequently, never argued for them before the Court, notwithstanding that in 2008 one of its former counselors had written and published a book on the matter. See E. Gaviria Liévano, Los Archipiélagos de Estado en el Derecho del Mar (El caso de San Andrés y Providencia) (Bogotá: Temis, 2008). 61  Judgment on the Merits, paras. 53 and 55. 62  Id. para. 84.

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concluded “that Colombia, and not Nicaragua, has sovereignty over the islands at Alburquerque, Bajo Nuevo, East-Southeast Cays, Quitasueño, Roncador, Serrana and Serranilla.”63 Although this shows that the Court knew that they were dealing with an outlying dependent archipelago, it did not consider this feature for the effects of calculating the lengths of opposite coastlines. Consequently when drawing the limits, the Court said that the disparity between the relevant Colombian coast and that of Nicaragua is 1:8.264 and this requires an adjustment, although the line of delimitation should allow the coasts of the Parties to produce their effects in terms of maritime entitlements in a reasonable and mutually balanced way. The effect of the provisional median line is to cut Nicaragua off from some three quarters of the area into which its coast projects. Moreover, that cut-off effect is produced by a few small islands which are many nautical miles apart. The Court considers that those islands should not be treated as though they were a continuous mainland coast stretching for over 100 nautical miles and cutting off Nicaraguan access to the sea-bed and waters to their east.65 Having decided that the course of a provisional median line would not produce an equitable result, the Court decided to search for some changes in the line, determined by particular relevant circumstances such as the lengths of the relevant coasts (ignoring the condition of the archipelago) and the overall geographical context—a series of islands, most of them very small and located 63  Id. para. 103. As stated in Judge Abraham’s Separate Opinion: “It is clear [. . .] that at the end of the examination which it conducts in paragraphs 52 to 55 [. . .] it does not ‘ascertain what constitutes the San Andrés Archipelago’. In fact it does not draw any conclusion and merely notes that, since it cannot reach a definitive decision on the scope of the 1928 Treaty concerning the features in dispute, it can only settle the dispute over sovereignty on the basis of the arguments of the Parties ‘which are not based on the composition of the Archipelago under the 1928 Treaty’ that is to say, the arguments concerning the uti possidetis juris and the effectivités (para. 56). It then moves on to consider those other arguments.” (Separate Opinion of Judge Abraham at para. 7). 64  Id. para. 211. The Court cites Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway) (65, para. 61) (approximately 1:9) and the case concerning Continental Shelf (Libyan ArabJamahiriya/Malta) (Judgment, I.C.J. Reports 1985, p. 53, paras. 74–75) (approximately 1:8). 65  Ibid. para. 215. Italics are added. These words show that the Court knew that it was dealing with an archipelago.

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at a considerable distance from one another.66 The Court forgot that the relevant part of the Nicaraguan coast, although not all, consists also of a series of small islands such as the Miskito Cays and the Corn Islands, 38 NM west of the Nicaraguan coast.67 Some cays and reefs lay north of these islands and south of the Miskito cays. “A boundary which followed the course of the provisional median line would leave Colombia in possession of a markedly larger portion of the relevant area than that accorded to Nicaragua, notwithstanding the fact that Nicaragua has a far longer relevant coast. The second circumstance necessitates a solution in which neither Party is cut off from the entirety of any of the areas into which its coasts project.”68 Nicaragua requested that each Colombian island be confined to an enclave, but the Court rejected this argument which was based on the Anglo-French Continental Shelf 69 case where the Court of Arbitration considered that the Channel Islands were an enclave within the two mainland coasts. The Channel Islands were nearer to the French coast and practically in the arms of a French gulf. However, the Court considered that encompassing Quitasueño and Serrana within the archipelago, “would allow small, isolated features, which are located at a considerable distance from the larger Colombian islands, to have a disproportionate effect upon the boundary. The Court therefore consider[ed] that the use of enclaves achieves the most equitable solution in this part of the relevant area” allowing them to have their own territorial sea.70 The adjusted line divided the relevant area in a ratio of approximately 1:33.44 in Nicaragua’s favour. Taking into account that San Andrés, Providencia and Santa Catalina should not be cut off from their entitlement to an exclusive economic zone and continental shelf to their east, including that area which is within 200 nautical miles of their coasts but beyond 200 nautical miles from the Nicaraguan baselines and that the principal Colombian islands should not be divided into separate areas, each surrounded by a Nicaraguan exclusive economic zone and that the delimitation was one which must take into account 66  Id. para. 229. 67  “By contrast, Alburquerque Cays, is more than 65 nautical miles from the nearest point on the Nicaraguan islands and, most of the San Andrés Archipelago is much farther away from Nicaragua than that.” Id. para. 231. 68  Id. 69  “Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic”, RIAA, Vol. XVIII (1977): 88, para. 183; ILR, Vol. 54: 96. Court’s footnote, at para. 231. 70  Id. para. 238.

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the need of contributing to the public order of the oceans, the Court found that the result achieved by the application of the line provisionally adopted does not entail such a disproportionality as to create an inequitable result.71 Notwithstanding this affirmation, the archipelago, which had been one since the times of the Spanish colony, was fractured into three parts: the main islands and some of the islets, the two enclaves (Serrana and Quitasueño) and the two islets which form part of the treaty and common zone between Colombia and Jamaica (Serranilla and Bajo Nuevo), each of them surrounded by limited territorial rights of Nicaragua to the EEZ and the continental shelf. The artisanal fishers who, for centuries, had been fishing in the area were deprived of that right and obliged to sail through those waters to reach the limited area left to Colombia in the enclaves. The Judges’ Opinion As is well known, the operative clause of the Judgment72 was unanimously adopted. However, some Judges were not in accord with the Court’s applied method. Judge Abraham in his separate opinion said that: it is obvious that the construction of a provisional median line as a starting-point for the delimitation is not only highly inappropriate in this case, but that it is even virtually impossible. The reason for this is very simple. The overlapping entitlements which make the delimitation necessary in this instance do not exist because two opposite (or adjacent) coasts are generating projections which overlap in an intermediate area, as is usually the case. Here, the overlapping entitlements occur because, within the exclusive economic zone measured from the Nicaraguan coast, there are islands belonging to Colombia which generate an entitlement to an exclusive economic zone for that State in all directions. In other words, the overlapping does not only occur between the Nicaraguan coast and the Colombian islands (that is to say, in the area to the west of the Colombian islands and to the east of the Nicaraguan coast); it also occurs in the areas to the north, east and south of the Colombian islands and even between them.73 In order to be able to construct a line which has at least the semblance of a ‘median line’ although in my view even that is debatable the Court 71  Id. paras. 243, 244, 247. 72  Id., para. 251. 73  Separate Opinion of Judge Abraham at paras. 24–25.

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deliberately had to ignore the majority of Colombia’s relevant coasts. However, in order to perform its designated function in the delimitation process, a median line must take into account all the ‘relevant coasts’ of the States present, that is to say, all the coasts which generate the projections creating the overlapping entitlements which make the delimitation necessary.74 Judge Keith75 and Judge Xue76 expressed similar concerns in their respective Opinions. Epilogue The Court’s Judgment caused a true commotion in Colombia. How can a valid treaty, a territorial treaty, just disappear in the hands of the Court? What happened with the territorial treaty between Colombia and Honduras? What happened with the ‘archipelago’? How can the Court decide based on equity and not on law? How can the Court accept a fundamental change of the original petition with practically no explanation? Can the States bring their petitions of sovereignty before a Court deciding definitely on the matter, with no judicial possibilities of review? Is the system of choosing the Judges failing? Are they truly capable of carrying such a responsibility? Are they too busy nowadays? We could continue asking questions that today still have no answer.77 74  Id., para. 28. 75  At para. 9. 76  At para. 5. 77  On 17 September 2013, Nicaragua instituted proceedings against Colombia asking the Court to “definitively determine the question of the delimitation of the continental shelf between Nicaragua and Colombia in the area beyond 200 nautical miles from the Nicaraguan coast”. The Application is based on the UNCLOS to which Colombia is not a party.

Chapter 32

International Law Issues in the Judgment of the International Court of Justice in the Peru-Chile Maritime Dispute Case Francisco Orrego-Vicuña Professor Hugo Caminos, a long standing dear and admired friend, is honored in this book for his extraordinary contribution to international law, and most particularly the Law of the Sea, subjects to which he has devoted most of his career. Nothing could be timelier than writing on this occasion about the most recent judgment of the International Court of Justice in the PeruChile Maritime Dispute Case,1 where many issues of international law have arisen and have been addressed from different perspectives. The complexity of these issues explains the six-year time period it took the Court to reach its conclusions. This writer sat in this case as a Judge ad hoc of the Court and is of course bound by its commitment to ensure the confidentiality of deliberations. The views expounded in this article are thus only based on the text of the judgment and the many dissenting and separate opinions and declarations that were appended to it, the aggregate of which sheds important light on the issues discussed and the approaches the Court and its distinguished members took on them. The author must stress at the outset that it was a genuine honor to listen to and read the pleadings of the most distinguished counsel and agents that appeared for each Party before the Court. The Court was petitioned by Peru to effect the delimitation in a relevant area of approximately 164.925 sq.kms,2 but as a consequence of the interplay of legal rules and technical considerations the relevant area considered by the Court was in the end diminished to one half of that petition or 80.092 sq.kms. It is within this area that the main submissions of the Parties confronted the Court with radical different solutions, Peru arguing in favor of a pure 1  International Court of Justice, Maritime Dispute (Peru v. Chile), Judgment of 27 January 2014 (hereinafter cited as Judgment). 2  For the background of the dispute see generally Ximena Hinrichs Oyarce: “Troubled waters between Chile and Peru: Early reflections on a maritime boundary claim”, Indian Journal of International Law, Vol. 49, 2009, 161–212.

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equidistance line and Chile for a line following the parallel of latitude. Because of these different views only Peru submitted to the Court arguments concerning a de novo delimitation based on equidistance,3 while Chile did not address this matter as it argued in favor of the recognition of an agreed maritime boundary along the parallel. The Court, however, would conclude that a different solution was justified.

The Starting Point of the Maritime Delimitation

In order to better understand the reasoning of the Court it is appropriate to begin with the issue of the starting point of the maritime delimitation line. Both Parties were in agreement that maritime delimitation should commence at the point where the land boundary reaches the sea. The land boundary had been established by the 1929 Treaty between the two countries.4 However, there were important differences as to which that point precisely was. For Peru it was a point located at sea identified as end Point 266 of its baselines (18o 21’ 08’’ S, 70o 22’ 39’’ W), while for Chile it was the point where the Boundary Marker No. 1 had been built at the time of the demarcation of the land boundary, which is slightly north of that identified by Peru (18o 21’ 03’’ S). Peru would draw its equidistance line from Point 266 while Chile would follow the parallel of Boundary Marker No. 1. The area in question is small, ranging from 21.600 sq. mts. to 41.100 sq. mts. depending on where the intersection with the low water line is established. Its political importance, however, is big as it touches upon the sensible question of the drawing of the land boundary after many years of discussion that followed confrontation in the nineteenth century. The Court was careful in the manner it disposed of this first contention. It first separated the question of the maritime delimitation from that of the land boundary, noting that the latter was “an issue which is clearly not before it”.5 This conclusion reflects the fact 3  On the meaning of de novo delimitation of maritime claims see generally Prosper Weil: “Délimitation maritime et délimitation terrestre”, International Law at a Time of Perplexity, Essays in Honour of Shabtai Rosenne (Dordrecht: Martinus Nijhoff Publications, 1988), 1021– 1026, at 1023. See also Laurent Lucchini: “Le juge et l’equidistance: sense or sensibility?”, L’Etat souverain dans le monde d’aujourd’hui, Mélanges en l’honneur de Jean-Pierre Puissochet (Paris : Pedone, 2008), 175–181. 4  Treaty for the Settlement of the Dispute regarding Tacna and Arica, with additional protocol, 3 June 1929. 5  Judgment, para. 163.

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that all issues concerning the land boundary are submitted under the Treaty of 1929 to the arbitration of the President of the United States. It also reflects a mild jurisdictional objection made by Chile, not as a preliminary issue but one in the context of the discussion on the merits. This is somewhat unusual, but nonetheless possible. More important was a second conclusion of the Court on this matter. The Court decided by a large majority that the maritime delimitation should commence at the point where the parallel of Boundary Marker No. 1 intersects the low water line, importantly relying on the criteria accepted by both countries in the 1968–1969 lighthouse arrangements and their intent that the maritime boundary would follow that parallel.6 The Court, however, was again careful to distance itself from the discussion of the land boundary, noting that it was not called to take a position on that issue, but at the same time recognizing that if Point 266 came to be the starting point of the land boundary it would not coincide with the starting point of the maritime boundary as defined by the Court.7 This situation would mean in fact that such stretch of coast would have no maritime entitlement, a situation which while not unprecedented is somewhat unusual. The importance of the agreements made by the Parties in 1968–1969 was decisive in the conclusion of the Court to define the starting point of the maritime boundary. There is another point of relevance for the proper implementation of international law in this context. As Point 266 is the end point of Peru’s baselines,8 a consequence of the adoption of the parallel as the starting point of maritime delimitation is that no baseline point can be located south of the parallel and it accordingly becomes necessary to correct this situation. The Existence of a Maritime Boundary A second decisive determination the Court was bound to make concerned the existence of an agreed maritime boundary. It must be born in mind that Peru had argued in its pleadings that no maritime boundary had been established with Chile at all and that any lines drawn at sea were intended as temporary arrangements for fisheries purposes, thus asking the Court to draw the 6  Document of 26 April 1968 on the materialization of the parallel of the maritime boundary originating in Boundary Marker No. 1; and Act of the Chile-Peru Mixed Commission in charge of verifying the location of Boundary Marker No. 1 and signaling the maritime boundary, 22 August 1969. 7  Judgment, para. 175. 8  Peruvian Maritime Domain Baselines Law, No. 28621, 3 November 2005; Supreme Decree No. 047-2007-RE, 11 August 2007, Approval of the Chart of the Outer Limit—Southern Sector of Peru’s maritime domain.

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boundary de novo along the line of equidistance. Chile’s understanding was radically different as in fact it argued that delimitation had been effected by binding agreements between the parties and that the Court’s task was simply to recognize such fact. These agreements were at the heart of Chile’s submissions that the maritime boundary thus drawn followed the parallel to a distance of 200 nautical miles, or beyond. It is on this question that the most important issues under international law arose. The meaning and extent of the 1947 Presidential Proclamations of both Chile9 and Peru10 claiming a 200-nautical mile jurisdictional area, the nature of which will be discussed below, that were followed by the 1952 Santiago Declaration11 and the various agreements adopted in 1954,12 with particular reference to the Special Maritime Frontier Zone Agreement, were the key elements for the Court to come to a conclusion on this matter. Ecuador had also been a party to both the Declaration and the various Agreements indicated. A first determination necessarily related to the issue whether such instruments were treaties or some form of policy-orientated declaration incapable of establishing a binding maritime boundary. Although the 1947 Proclamations were of course individual acts and did not constitute a bilateral agreement, they were not devoid of interest in respect of the maritime delimitation the parties had in mind, so much so that they conveyed the thought that the claimed maritime areas had a perimeter and hence a lateral boundary between the neighboring countries, as the Court’s President Declaration clearly notes.13 More specific was Article IV of the Santiago Declaration in addressing the question of delimitation between general maritime of the parties in conjunction with the delimitation of islands. And still more eloquent was the 1954 Agreement on a Special Maritime Frontier Zone which specifically referred to the existing maritime boundary following the parallel of latitude. The 1968– 1969 lighthouse arrangements noted above were also of influence in the finding that the Parties had recognized the existence of such boundary. Some of the dissenting opinions have noted that the 1955 Protocol of Accession to the

9  10  11  12 

Chile, Presidential Declaration Concerning the Continental Shelf, 23 June 1947. Peru, Supreme Decree No. 781, 1 August 1947. Declaration on the Maritime Zone, Santiago, 18 August 1952. Agreement relating to the Special Maritime Frontier Zone, Lima, 4 December 1954. See also the Complementary Convention to the 200 mile maritime zone, 4 December 1954; and the Protocol of Accession to the Declaration on Maritime Zone, Quito, 6 October 1955. 13  Declaration of President Tomka, para. 12.

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Santiago Declaration was also of relevance in this respect,14 although the judgment took a different position on this instrument. The Court had no difficulty in finding that all such trilateral agreements between Chile, Ecuador and Peru were formal treaties which the parties had recognized as such in spite that Peru had at first questioned the nature of the 1952 Santiago Declaration.15 The issue before the Court had thus to be decided in the light of the rules of treaty interpretation under the Vienna Convention on the Law of Treaties. Notwithstanding the legal nature of such treaties Ecuador and Peru signed a separate maritime delimitation agreement in 2011, with the particular feature that the nautical chart depicting the limit is expressly based on the 1952 and 1954 instruments.16 This was, as reflected in the judgment and the appended opinions, the most contentious aspect the Court had to deal with. Whether those treaties had established a maritime boundary or the admitted existence of the boundary was the outcome of some form of tacit agreement was the difficult question the Court had to answer. One or other finding would have important consequences for the conclusions of the Court. Finding of a Tacit Agreement The majority of the Court opted for a finding that the existing maritime boundary was the outcome of a tacit agreement and not of a treaty provision 14  Joint Dissenting Opinion of Judges Xue, Gaja, Bhandari and Judge ad-hoc Orrego Vicuña, paras. 27–30. (Hereinafter Joint Dissenting Opinion). 15  On what is to be understood by a treaty see generally Shabtai Rosenne: “What is a treaty-A signatory’s intentions-Qatar v. Bahrain”, Essays on International Law and Practice (Leiden: Brill Nijhoff, 2007), 435–443; Shabtai Rosenne: “Consent and related words in the codified law of treaties”, La communauté internationale, Mélanges offerts a Charles (Paris: Rousseau, 1974), 229–248. On good faith in the law of treaties see Elisabeth Zoller, La bonne foi en droit international (Paris: Pedone, 1977), with particular reference to the law of treaties, at 47–95; Robert Kolb: “La bonne foi en droit international public”, Revue Belge de Droit International (1998): 661–730; Jean-Pierre Cot: “La bonne foi et la conclusión des traités”, Revue Belge de Droit International (1968): 140–159; Paul Reuter: “Traités et transactions. Réflextions sur l’identification de certains engagements conventionnels”, International Law at the time of its codification, Essays in honour of Roberto Ago (Milano: Giuffrè, 1987), 399–415. 16  Agreement between Ecuador and Peru of 2 May 2011, also following the boundary line along the parallel of latitude. Ecuador had also consistently held the treaty nature of the 1952 Declaration, for which see generally Claude Lara: “Contribución crítica sobre la interpretación jurídica de la Declaración de Santiago”, Revista AFESE, 1989, 1–43. Ecuador acceded to the Law of the Sea Convention following approval of the National Assembly on 12 March 2012.

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so establishing. Aside of the fact that the 1947 Proclamations were not deemed to have established such a boundary or to entail any binding obligations in this matter, it was the interpretation of Article IV of the 1952 Santiago Declaration that led the Court to that conclusion. Such provision was interpreted as governing only the question of delimitation of islands and not as establishing a maritime delimitation between the general maritime zones claimed by the Parties. In turn, the 1954 Special Maritime Zone Agreement was interpreted not as having established a boundary along the parallel but only as having recognized its prior existence. The specific sources of this tacit agreement were left undefined as the Joint Dissenting Opinion has noted.17

The Rationale for Treaty Interpretation

A different point of view was expressed in the dissenting and other opinions appended to the judgment. While the 1947 Proclamations were not explicit on the question of maritime delimitation they hinted as noted to the intention of both Chile and Peru in this respect. Article IV of the Santiago Declaration was interpreted in a wholly different manner. This provision had in fact addressed the question of the delimitation of islands, but had done so in the context of the delimitation of the general maritime zones along the parallel. It would have been impossible to effect the delimitation of islands touching upon the parallel if such a parallel was not in the first place in place in respect of the general maritime zones of the Parties originating in their continental coasts. It thus followed that the general maritime boundary was established by that provision as confirmed by its negotiation. The Joint Dissenting Opinion concluded in this connection that “[t]he text of paragraph IV of the 1952 Santiago Declaration implies that the parallel that passes through the point where the land frontier reaches the sea represents the lateral boundary of the general maritime zones of the Parties . . .”.18 The text of said paragraph IV is eloquent in this respect: In the case of island territories, the zone of 200 nautical miles shall apply to the entire coast of the island or group of islands. If an island or group of islands belonging to one of the countries making the declaration is situated less than 200 nautical miles from the general maritime zone belonging to another of those countries, the maritime zone of the island 17  Joint Dissenting Opinion, para. 1. 18  Joint Dissenting Opinion, para. 35.

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or group of islands shall be limited by the parallel at the point at which the land frontier of the States concerned reaches the sea. The 1954 Special Maritime Frontier Zone Agreement, like the 1955 Protocol of Accession to the Santiago Declaration and the 1968–1969 lighthouse arrangements, only came to confirm this agreed maritime boundary. Paragraph 1 of the 1954 Agreement clearly established that “[a] special zone is hereby established, at a distance of 12 nautical miles from the coast, extending to a breadth of 10 nautical miles on either side of the parallel which constitutes the maritime boundary between the two countries”. Equally clear was the 1968 lighthouses agreement concluded between Peru and Chile so as “to materialise the parallel of the maritime frontier originating at Boundary Marker number one (No. 1)”. The Court correctly decided in its judgment that the boundary followed the parallel of latitude identified as that which passes through Boundary Marker No. 1 westward, but because the tacit agreement had not been explicit as to its extent this had also to be determined by the Court. In the view of the dissents which relied on a strict treaty interpretation, however, this extent had been also established by Article IV of the Santiago Declaration, thus reaching the conclusion that “[t]his approach does not only have theoretical significance. While the majority labours to argue in favour of the idea that the agreement between Peru and Chile covers a distance of 80 nautical miles from the continental coast, the Santiago Declaration clearly indicates that the seaward end of the boundary extends to 200 nautical miles”.19

Nature of the Maritime Boundary

Before discussing the question of the extent of the maritime boundary it is appropriate to consider two other issues of importance which the Court decided in its judgment. The first concerns the nature of the maritime boundary. It had been submitted by Peru that any line drawn at sea was only related to fisheries and thus could not be understood as establishing a boundary. This view could have opened the door to different lines for different purposes. The Court, however, came to the conclusion that delimitation concerned an allpurpose single maritime boundary as this was in accordance with the Parties’ maritime claims to the continental shelf and the superjacent water. This had indeed been the express language of the 1947 Proclamations and a number of 19  Joint Dissenting Opinion, para. 2.

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legal enactments that followed. It is well known that the Court has not favored in its jurisprudence separate lines of delimitation and has resorted to single all-purpose maritime delimitation lines.20 A related issue of importance which the Court had to decide concerned the precise legal nature of Peru’s maritime claims. For a long period of time Peru had favored the view that its maritime claims were in the nature of a territorial sea.21 Distinguished jurists and statesmen had supported this approach22 and a number of legislative enactments23 and constitutional provisions24 had so expressly provided for. During the negotiations of the Third United Nations Conference on the Law of the Sea Peru had convened and presided the Group of territorial States25 and because of this very reason it decided not to sign the 1982 Convention or otherwise become a party to it. The reference to ‘maritime domain’ contained in Peru’s legislation and Constitution is not unrelated to that view. While there were also distinguished writers supporting the view 20  See, for example, International Court of Justice, Maritime delimitation and territorial questions between Qatar and Bahrain, Merits, ICJ Reports (2001): 94. 21  Trends toward the territorialization of maritime claims are discussed in Daniel Bardonnet: “Frontières terrestres et fontières maritimes”, Annuaire Francais de Droit International, Vol. 35 (1989): 1–64, at 40–53. Peru has been continuously listed as a territorial sea claimant in the tables concerning the nature of maritime claims compiled by the United Nations, for which see United Nations, Table of claims to maritime jurisdiction, 15 July 2011. 22  José Luis Bustamante y Rivero: La Doctrina Peruana de las 200 millas (Lima: Talleres gráficos, 1972); other distinguished Peruvian jurists supporting the 200 nautical-mile territorial sea concept include Andrés Aramburú Menchaca and Alberto Ruiz Eldredge, for which see Beatriz Ramacciotti de Cubas: “El Perú y la jurisdicción en las 200 millas marinas: El caso Onassis y la Convención del Mar”, Estudios de Derecho Internacional (Lima: Instituto Peruano de Relaciones Internacionales, 1990), 19–69, at 48. 23  See, for example, Ley No. 13508, Ley Orgánica de la Marina de Guerra or “Ley Secreta”, enacted on 6 February 1961, Anuario de la Legislación Peruana, Vol. LII, Legislatura de 1960, at 89. Although the text of this law was kept secret it was soon established that it provides for the control of the territorial sea to a 200 nautical-mile distance, for which see F.V. García Amador: América Latina y el Derecho del Mar (Santiago de Chile: Instituto de Estudios Internacionales de la Universidad de Chile/Editorial Universitaria, 1976), 89. 24  Political Constitution of Peru, 1979, claiming the maritime domain (Article 98) and sovereignty over the 200-nautical mile air space (Article 99); see also the Political Constitution of Peru, 1993, (Article 54). 25  For the list of countries that participated in the Territorialist Group, including Peru, see T.T.B. Koh & S. Jayakumar: “The negotiating process of the Third United Nations Conference on the Law of the Sea”, in United Nations Convention on the Law of the Sea, 1982: A Commentary, ed. M.H. Nordquist (Dordrecht/Boston/Lancaster: Martinus Nijhoff, 2002), 75–76.

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that maritime jurisdiction had only a functional nature related mainly to the exploitation of resources and associated activities,26 this understanding had not prevailed.27 Practice also confirmed that many restrictions were in place for the exercise of freedom of navigation and over-flight. Had the Court been confronted with a 200-mile territorial sea delimitation re­quest it must be assumed that the Court would have had to declare such request inadmissible. In fact it is hardly conceivable that the Court would have accepted to proceed to the delimitation of a 200-mile territorial sea claim that is by definition contrary to international law as this would be in contradiction with its own jurisprudence on the status of the exclusive economic zone regime as customary international law.28 It was therefore in Peru’s best interest to clarify that its maritime domain was not tantamount to a territorial sea claim. This might explain the formal declaration made on behalf of the Government of Peru by its Agent in this case to the effect that the term ‘maritime domain’ used in its Constitution is “applied in a manner consistent with the maritime zones set out in the 1982 Convention”.29 The Court, following a well-established jurisprudence, further notes that this declaration expresses a formal undertaking by Peru.30 As a consequence of such step Peru is now entitled to exercise jurisdiction over its maritime areas up to 12 nautical miles for the territorial sea, 24 nautical miles for the contiguous zone and 200 nautical miles for the exclusive economic zone and the continental shelf as established under the 1982 Convention.

26  Enrique García Sayan: Notas sobre la soberanía marítima del Perú (Lima: Talleres Gráf. P.L. Villanueva, 1955); other distinguished Peruvian jurists supporting a resource-orientated functional maritime jurisdiction include Juan Miguel Bákula, Luis Alberto Sánchez, Eduardo Ferrero Costa and Domingo García Belaúnde, for which see Ramacciotti de Cubas, cit., at 49. 27  For the view that Peru’s interests would be better served by adhering to the Convention on the Law of the Sea, see generally Eduardo Ferrero Costa: “Peru and the Law of the Sea Convention”, Marine Policy, Vol. 11, 1987, 45–57; and see generally Cristina Piazza: Le Perou, les 200 milles et la Convention sur le Droit de la Mer de 1982 (Geneve: IHEI, 1985). 28  See, for example, International Court of Justice, Case concerning the continental shelf (Libyan Arab Jamahiriya/Malta), 3 June 1985. 29  CR 2012/27, p. 22, para. 26. 30  For the binding effect of unilateral declarations before the International Court of Justice, see, for example, Nuclear Tests, ICJ Reports (1974): 253, at pp. 267–270, paras. 42–52; and Frontier Dispute, ICJ Reports (1986): 554, at 574, para. 40.

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The Court’s Contribution to the Freedom of Navigation

Although this determination by the Court has been done in a rather low key tone it has important implications for the proper implementation of the law of the sea generally and Peru’s jurisdictional entitlement in particular. Freedom of navigation and over-flight must now be assured beyond the 12-mile territorial sea area to merchant or military vessels flying the flags of all nations, including Chile. This shall benefit the world community as a whole and thus the Court has appropriately dealt with an issue that exceeds by far the context of the dispute before it. Peru is accordingly now bound to introduce such amendments to its legislation and constitutional provisions that stand in contradiction to this finding of the Court. While the formal accession to the Law of the Sea Convention would be the clearest abidance with the judgment in this matter, this is something that is still open to debate in Peru. A first step in this direction has been given by Peru in a Decree published in its official journal on 8 February 2014 to the extent that Peru expresses its commitment to respect freedom of navigation in its ‘jurisdictional waters’.31 This assurance is, however, conditioned to peace, order, security or national rights and interests not being affected. Moreover, express reference is made to the conformity of such freedom with the Constitution, legislation, international treaties to which Peru is a party and other rules of international law that might be applicable. The question of the maritime domain embodied in the Constitution and legislation is thus kept in force. Neither is over-flight mentioned as benefiting from such freedom. The Decree also provides for a broader restriction in terms of Peru’s jurisdictional waters constituting a ‘zone of peace’, in which it forbids military exercises without the express authorization of Peru or any navigation activity that affect its peace and security. This Decree can only be understood as a first effort at ensuring the full compliance with the judgment in matters of compatibility of Peru’s maritime claims with the 1982 Convention, which does not contain any such restrictions. In a joint Chile-Peru ministerial declaration issued following a meeting held on 6 February 2014 in respect of the implementation of the judgment, Peru unequivocally stated that it will exercise its rights and obligations in its maritime zone consistently with international law as expressed in the 1982 Convention.32

31  Perú, Decreto Supremo 002–2014-DE, El Peruano, 8 February 2014, Article D 010401. 32  Declaración Conjunta de los Ministros de Relaciones Exteriores y Defensa de Perú y Chile, 6 February 2014, para. 3.

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Recognition of a Limited Parallel of Latitude

Having determined that the delimitation line has its starting point at the intersection of the parallel of Boundary Marker No. 1 with the low waterline, and having next determined that this line would follow the parallel westward as an all-purpose single maritime boundary, it was clear that the Court was founding its conclusions on the existence of the treaties noted. But it is at this point that the major differences between the majority approach and the dissenting approach arose. Because the former believed that this was the outcome of a tacit agreement and not strictly of treaty interpretation, the consequence would be that the Court would have to determine the end point of the line along the parallel and the direction it would follow as from there because the tacit agreement had not addressed these matters. In the view of those supporting the interpretation of treaties the treaty provisions, imperfect as they were, would have led to the conclusion that the parties had agreed to the parallel extending to its full 200-nautical mile distance. While it is true that the 1954 Special Maritime Frontier Zone was not specific as to how far the parallel extended, its context left no doubt about it. One thing was the existing maritime boundary extending for a 200-nautical mile distance that originated in the 1952 Santiago Declaration and its precedents and quite another was the distance to which the Special Maritime Frontier Zone would extend, which could of course be different as this was a zone appended to the boundary for the specific purpose of fisheries. In fact, other zones could have been appended to the boundary for certain distances if the parties were so to agree but none of it would affect the existing maritime boundary as such. This explains why all legal scholars discussing the boundary, like all main geographers, had concluded that the parallel extended to a 200-nautical mile distance.33 Of particular significance is in this respect the view of former judge and President of the Court, Eduardo Jiménez de Aréchaga, who authored the most detailed study of this boundary and concluded that “In 1952 the states that were party to the tripartite declaration . . . [i]n the absence at that time of known principles or agreed rules of delimitations . . . chose the method of the parallel of latitude drawn from the point where the land frontier reaches the sea”, a solution that “was confirmed by the parties in an agreement signed

33  For the views of publicists on the delimitation between Peru and Chile following the parallel of latitude see Chile Counter-Memorial, 162–174.

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on 4 December 1954”.34 He further noted that although the seaward limit of the maritime boundary was not clearly defined in the 1952 Declaration “in view of the claim to 200 n.m., it must be considered as extending 200 n.m. from each coast”.35

The Court’s Segmented Approach to the Boundary

As the majority was not persuaded by these opinions it opted for a solution that splits the boundary in two segments, one running along the parallel up to Point A situated at the distance of 80 nautical miles from the starting-point, and the other following a line of equidistance from Point A until meeting Point B and thereon to Point C. Some dissenting views have noted that there is no support for the Judgment’s conclusion.36 In fact, the record shows that the Parties had never considered such a distance and there is no single element in it pointing to distances lesser than 200-nautical miles as this would have been in direct contradiction with their policy in respect of claiming 200-nautical mile jurisdictional areas. One added difficulty with such segmented approach is the fact that the 1954 tolerance zone will now stop at the 80th mile, contrary to what was the parties’ intentions to extend it all along the 200-nautical mile parallel.37 Although broken lines have been used in some instances of maritime delimitation, mainly relying on a bisector approach and not on equidistance, these have been the consequence of turns justified by particular geographical facts or natural resources, which are not present in the case of this dispute.38 The conclusion of the Court that the line would follow equidistance as from Point A is no doubt imaginative but unprecedented. In fact, it was considered but

34  Eduardo Jiménez de Aréchaga: “South American Maritime Boundaries”, in International Maritime Boundaries, Vol. I, ed. J.I. Charney & L.M. Alexander (1993), 285–289, and ChilePeru Report Number 3–5, 793–797, at 793. 35  Id., at 796. See also Francisco Orrego Vicuña: The exclusive economic zone: Regime and legal nature under international law (Cambridge: Cambridge University Press, 1989), 206–207. 36  Declaration of President Tomka, para. 3. 37  Declaration of President Tomka, para. 4. 38  Broken lines applying a bisector angle have been applied, for example, in “Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal”, International Tribunal for the Law of the Sea (2012), para. 217; and “Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea”, International Court of Justice (2007), paras. 277–280.

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rejected in the Gulf of Maine Chamber judgment.39 Equidistance in this conclusion, however, is different from that claimed by Peru as it is measured from a point not located onshore but located 80 miles off-shore. The end result is that the total area in dispute as measured from the 200-nautical mile parallel claimed by Chile, on the one hand, and the equidistance line pleaded by Peru, on the other hand, amounting to approximately 38.224 sq.kms. has been divided in 16.224 sq.kms. that remain under Chilean jurisdiction and 22.100 sq.kms. attributed to Peru.

Limited Recognition of the Parties’ Practice

The judgment, together with limiting the meaning of the 1947 Proclamations and of the instruments that followed in 1952 and 1954 as to the definition of the maritime boundary, undertook an examination of the Parties’ practice that seeks to support the rationale of its finding on the 80-nautical mile parallel and the equidistance that followed. As noted above, this is what the Joint Dissenting Opinion explains as an effort in which the majority ‘labours’ to argue in favor of its approach. In spite of such efforts the difficulty in finding a justification for this solution is noticeable.40 The judgment attaches particular importance to the fisheries activities of the Parties in the 1950’s and relates this to the fact that the Special Maritime Frontier Zone envisaged small fishing boats operating in the area. As these boats would be incapable of operating at longer distances it was then concluded that the parallel could not extend beyond 80-nautical miles. From the dissenting and separate opinions it can be readily seen, however, that a number of different distances were considered in this context, ranging from no distance at all (Sebutinde), to 12 nautical miles (Sepúlveda) and on to 80 or at least 100 nautical miles (Skotnikov) and other distances in between. The real situation was, however, quite different. Because of the coastal configuration in the area even small fishing boats operating out of the Peruvian southern port of Ilo navigating 60-nautical miles in a southwestern direction would intersect the parallel at the distance of 100-nautical miles as measured from its 39  International Court of Justice, Delimitation of the Maritime Boundary in the Gulf of Maine Area (1984), paras. 211–212. 40  Philippe Cahier: “Le comportement des Etats comme source de droits et d’obligations”, Recueil d’Etudes de Droit International en hommage à Paul Guggenheim, 1968, 237–265; Jean-Pierre Cot: “La conduite subséquente des parties a un traité”, Révue générale de droit international public (1966), 632–666.

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starting point, a situation duly noted by the judgment,41 just as if they operated 80-nautical miles from the coast the intersection would take place at 120-nautical miles or beyond. Moreover, fishing boats also occasionally operated at the time far out at sea and were not restricted to coastal fisheries. From the viewpoint of international law the question has a more serious implication. There is no reason why treaties should be considered as governing only the activities undertaken at the time of their adoption and not the same activities as they evolve along time, except when this is the intended meaning. In this particular dispute, the fisheries of the 1950’s were followed soon enough by major developments that brought Peru to the rank of the first fishing country in the world, with Chile positioned not far behind. The judgment, however, freezes the legal effect of the 1954 Agreement to what it understands was the situation at the outset.42 While it is true that the concept of the exclusive economic zone as such had not yet come into being it is equally true that these very early normative expressions and practice concerning the 200-nautical mile claims were the bases on which the present law of the sea was built.43 The Third United Nations Conference on the Law of the Sea recognized as much in rendering tribute to the memory of Chilean President Gabriel González Videla on his passing in 1982 as the founding father of the developments that followed.44 In this respect the judgment appears to be somewhat undermining the very finding of the Court that the exclusive economic zone has become a rule of customary international law. The importance of the legislative and diplomatic activity of the Parties at the time, which significantly confirms which was their understanding about the governing instruments and the extent of the maritime boundary, is also largely downplayed by the judgment. Even the 1955 Resolution by the President of Peru providing for the technical criteria for the drawing of the boundary and expressly establishing that it was not to extend beyond the “parallel at the point where the frontier of Peru reaches the sea”, and which 41  Judgment, para. 108. 42  Jean Combacau: “L’écoulement du temps”, Le droit international et le temps (Paris: Société Française pour le droit international, 2001). 43  Ann L. Hollick: “The origins of 200-mile offshore zones”, American Journal of International Law, Vol. 71, (1977): 494–500. 44  Extract from the Official Records of the Third United Nations Conference on the Law of the Sea, Vol. XIV, United Nations doc. A/CONF.62/SR.137, 137th Plenary Meeting (Thursday, 26 August 1980, at 3.25 p.m.), at paras. 57, 67. The record noted that H. S. Amerasinghe, President of the Conference, “paid tribute to Mr. González Videla, the former President of Chile, whose initiatives had set a deep imprint on the history of the law of the sea”, para. 67.

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relied on both the Santiago Declaration and the 1954 Special Maritime Frontier Zone Agreement, has been assessed as bearing no relevance in the resolution of this dispute. A similar assessment is made of the abundant practice concerning enforcement activities in relation to the boundary, including fisheries, navigation, overflying, the laying of submarine cables and many other aspects. This practice shows at the very least the acquiescence of the Parties as to the existence and acceptance of the parallel throughout its full extent and thus further confirms the meaning of the governing treaties.45 This limited assessment of the meaning of the applicable law and the practice stems to a large extent from the fact that the Court started from the premise that the 1947 Proclamations and their aftermath through to 1954 were not in accordance with the law of the sea as understood at the time, and hence, that a maritime boundary could not then be drawn in relation to extended claims. As noted above, however, a totally different understanding would have been justified if the 1947 Proclamations and related instruments would have been considered in their proper context and the fact that they all were in the aggregate the triggering elements of the present law of the sea. But even if not in accordance with the law as it stood in the 1950´s, as the Joint Dissent appropriately concludes, such acts were valid expressions of the Parties’ agreement on a maritime delimitation with regard to their potential entitlements.46 In contrast with the limited assessment noted, the judgment assigns great influence to the “Bakula Memorandum” in evidencing that the Parties were not in agreement about the existence of a boundary or its nature and extent. Juan Miguel Bakula was a most distinguished Peruvian diplomat and jurist with whom this writer had the privilege of having a close relationship as a consequence of the friendship that had brought both families together along their respective diplomatic careers and later of having worked with him throughout the long negotiating process of the Third UN Conference on the Law of the Sea. Ambassador Bakula’s thoughts on maritime delimitation were not endorsed at the time by his government and in fact his visit to Santiago in 1986 was a private one intended to discuss his ideas, a process which started with a visit to this writer. So much is evidenced by the fact that there was no memorandum when he visited with the Chilean Foreign Minister and its text was only written after the visit took place and sent with a cover note from the Peruvian embassy

45  I.C. MacGibbon: “The scope of acquiescence in international law”, British Year Book of International Law (1954): 143–186. 46  Joint Dissenting Opinion, para. 17.

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in Santiago that clearly indicated the private nature of these thoughts.47 The Chilean Ministry, however, wrongly understood its meaning and stated that the memorandum represented the interest of the Peruvian government.48 The only intervention of his government at the time was the request by the Peruvian foreign minister to his Chilean counterpart whether he could see Ambassador Bákula. Because such thoughts were not endorsed then by the Peruvian government is that the matter was not taken up until fourteen years later in preparation of the application to the International Court of Justice. The influence the Court assigned to this memorandum is so great that it diminished the importance of the practice that followed to a minimum. In spite of it being a private initiative it was made virtually equivalent to a State act capable of establishing the critical date for the evaluation of evidence. As a consequence, for the Court the dispute began in fact in 1986, long before Peru had suggested any such controversy. Aside its implications for the judgment, the finding of the Court has established, probably for the first time, a critical date based on a private initiative.

Access to Fisheries Resources

In spite of these shortcomings as to the proper extent of the parallel, the judgment has opened the door to a possible approach that could accommodate the impact of the newly recognized Peruvian maritime areas in respect of the Chilean interests that have accordingly been diminished. Because the Court has established that the Peruvian jurisdictional claim is governed by the 1982 Law of the Sea Convention, as indicated by the statement of its agent before the Court, the regime of the exclusive economic zone applies hence to the entire Peruvian exclusive economic zone, including the area awarded by the Court, not just to matters concerning navigation but also to those relating to fisheries and the exploitation of resources. This means in practice that Chile could be able to invoke Article 62, paragraph 2, of the Convention on the Law of the Sea, which provides that the coastal State shall give other States access to the surplus of the allowable catch. This mechanism would be an appropriate 47  Note accompanying the text of the Memorandum sent by the Peruvian Embassy in Santiago to the Chilean Ministry of Foreign Affairs, 23 May 1986, which refers to the summary of the statements that the Ambassador “allowed himself to make” during the audience with the Minister Memorial of Peru, Ann. 76. 48  Official communiqué of the Chilean Foreign Ministry, 13 June 1986, Memorial of Peru, Ann. 109.

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solution to avoid the disputed access to fisheries that ensued as a consequence of the Nicaragua-Colombia maritime delimitation dispute, where such possibility was not envisaged by the Court.49

The Claim to the Outer Triangle and the Role of Proportionality

A different issue concerning international law in the context of the Court’s judgment is that related to the Peruvian claim to the ‘outer triangle’, a high seas area not claimed by Chile.50 It was noted above that at their origins the 200-nautical miles claims included an eventual extension beyond 200-nautical miles. The Presential Sea concept, which involved non-jurisdictional claims beyond 200-nautical miles, sponsored at one point by high-ranking Chilean navy officers51 found only limited legislative support and virtually no diplomatic follow-up by the Chilean government.52 There were thus no bases on which to claim jurisdiction or other rights over such area on the part of Chile, except to argue that it is a part of the high seas where Chile and other countries have an interest in its fisheries. In fact the regulatory treatment of this area has been governed by the South Pacific Regional Fisheries Management Organization.53 Peru’s submission to the Court included the area of the ‘outer triangle’ as a part of its overall claim to maritime jurisdiction.54 The Court understood this claim as different from that concerning the maritime boundary and recognized Peru’s jurisdiction over this area. A first indication of the Court’s understanding was the title assigned to the case by its Registrar, which refers to ‘Maritime Dispute’, not just to ‘Maritime delimitation dispute’ as is normally the case. 49  International Court of Justice, Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, 19 November 2012. 50  On the “Grey Area” in maritime delimitation see generally Alex G. Oude Elferink: “Does undisputed title to a maritime zone always exclude its delimitation: The Grey Area issue”, International Journal of Marine and Coastal Law, Vol. 13 (1998): 143–192. 51  Jorge Martínez Busch: “El mar presencial: un nuevo concepto unificador del derecho internacional del mar”, Revista de Derecho, 1992, 7–24. 52  Jane Gilliland Dalton: “The Chilean Mar Presencial: A harmless concept or a dangerous precedent?”, International Journal of Marine and Coastal Law, Vol. 8 (1993): 397–418. 53  Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean, 1 February 2010. 54  On Peru’s maritime claims see generally Frida M. Armas Pfirter: “Peru: road to the west”, in Ralph Zacklin (ed.), The changing law of the sea: Western Hemisphere perspectives (Leiden: Brill, 1974), 207–221.

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The consequence of the Court’s finding is that the test of proportionality was distorted. The Court only measured proportionality as it relates to the boundary dispute with Chile and the extent to which the areas concerned were distributed between the two countries as indicated above in conjunction with the broken parallel-equidistance equation. The effect of the ‘outer triangle’, in spite of it being a part of Peru’s claim, was not included in this equation with the result that a far greater proportion of maritime areas were awarded to one party to the detriment of the other. This is hardly compatible with the meaning of proportionality in the Court’s maritime delimitation jurisprudence55 and could even undermine the three step delimitation process identified in the Court’s jurisprudence in so far the role on non-disproportion is an important correcting principle of any solution devised. The dissenting view of this writer as a judge ad-hoc, while admitting that under international law every country is entitled to exercise jurisdiction over the entire maritime areas as properly measured from its continental or insular territories, was based on this disproportionate effect of the judgment. Had a full 200-nautical mile parallel been recognized by the Court the disputed area remaining in Chile’s hands would have been proportional to the area that Peru gained in the ‘outer triangle’ and thus the test would have been satisfactorily met. A second reason prevented this judge from supporting the Court’s finding on the ‘outer triangle’. This part of Peru’s claim is based on the ‘arcs-of-circle’ method of delimitation adopted in 2005.56 Such date is well beyond the 1986 quasi-critical date established by the Court as discussed above and indeed even beyond the true critical date of 2000 and can only be understood as legislation introduced in preparation of Peru’s case before the Court. In spite that such method stands in contrast to the tracé parallèle used in the 1950s and of its late adoption the Court accepted the influence of this practice, a finding which is indeed opposed to its assessment of many aspects of the practice intervening in the same period of time. If the effects of the early instruments were frozen in the 1950’s so too should have been the methods of delimitation which at the time only concerned trace parallèle with just a few references to arcs-ofcircle made in academic writings of the time.

55  See, for example, International Court of Justice, Maritime Delimitation in the Black Sea, Judgment, ICJ Reports (2009): 103, para. 122. 56  Peru, Law on Maritime Domain Baselines, 3 November 2005, Memorial of Peru, Annex 23.

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Equity Revisited

A last serious implication for international law is found in the approach the Court took in its judgment in respect of equity as a source of law.57 In spite that many variations on this matter are found in the Court’s jurisprudence, including that concerning specifically maritime delimitation, equity has been generally considered as bound by the law and not as an autonomous source which the Court could apply subjectively at will, a situation which is only given in cases where the Court might be asked to decide ex aequo et bono, which is of course altogether different. This is clear enough under international law generally, but still more so in the context of the law of the sea. Article 74, paragraph 1 of the 1982 Convention on the Law of the Sea considers the equitable results of maritime delimitation in conjunction with agreements between the parties, not in isolation, all of it effected on the basis of international law. As noted in his dissenting opinion this writer had the honor of proposing the final text of the above-mentioned Article when acting as the delegate for Chile at the Third Conference, and can attest that this meaning was the fundamental basis of the consensus that was finally reached on its content.58 This judgment, however, appears to consider the role of equity as capable of determining the outcome of the dispute on its own standing without strict observance of the governing law as established in treaties and other legal instruments. Prosper Weil had duly noted that occasionally the Court “a failli un moment succomber au chant des sirènes de l’équité quasi discrétionnaire tenant lieu de droit, et réduire le droit à l’application de l’équité”.59 The dissenting opinion notes that consistency with the meaning of the Convention on 57  See generally Vaughan Lowe: “The role of equity in international law”, The Australian Year Book of International Law, Vol. 12 (1992): 54–81. 58  Separate, partly concurring and partly dissenting, opinion of Judge ad hoc Orrego Vicuña, para. 36. It should be noted further that there are important differences between Article 15 of the Convention on delimitation of the territorial sea and the rule of Article 74 (1) concerning the delimitation of the exclusive economic zone, for which see generally G.J. Tanja: The legal determination of international maritime boundaries (Deventer/ Boston: Kluwer Law and Taxation Publishers, 1990), 81–116. See further Francisco Orrego Vicuña: “The contribution of the exclusive economic zone to the law of maritime delimitation”, German Yearbook of International Law, Vol. 31 (1988): 120–137. 59  Prosper Weil: “L’équité dans la jurisprudence de la Cour Internationale de Justice. Un mystère en voie de dissipation?”, in Fifty Years of the International Court of Justice, Essays in Honour of Sir Robert Jennings (Cambridge/New York: Grotius Publications/Cambridge University Press, 1996), 121–144, at 144.

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the Law of the Sea could thus be compromised under such approach. Equally discomforting is the fact that this turn of the Court’s jurisprudence appears to depart from the progress made in the rationalization of the solutions devised to settle maritime delimitation disputes.60 In the end, one can ask whether there was a true majority in support of the findings of the judgment in respect of the unprecedented solution adopted insofar the delimitation line is concerned. It is quite true that such findings had the votes of ten judges, but five of them expressed their disagreement with the reasoning followed and some of its conclusions. The situation recalls that with which the Court was confronted in the Guinea-Bissau v. Senegal case of the Arbitral Award of 31 July 1989.61 In that case the question of a true majority versus a formal majority arose in view of the declaration made by the distinguished Argentine jurist Julio Barberis apparently contradicting what the majority had decided with his favorable vote as President. The Court then considered that what prevailed was the formal majority irrespective of separate opinions. Even if that would probably be true of the Peru-Chile judgment there is still room to doubt in the circumstances how influential will this judgment be in determining the orientations of the Court’s jurisprudence on maritime delimitation. 60  On the normative progress of maritime delimitation see generally Nathalie Ros: “El derecho jurisprudencial de la delimitación marítima”, Revista Española de Derecho Internacional (2013), 115; Ian Brownlie: “The sources of law governing maritime delimitation”, Liber Amicorum in tribute to Professor Eduardo Jiménez de Aréchaga (Montevideo: FCU, 1994), 733–744; Eduardo Jiménez de Aréchaga: “The conception of equity in maritime delimitation”, International law at the time of its codification, Essays in honour of Roberto Ago, (Milano: Giuffrè, 1987), 229–239; Michel Virally: “L’equité dans le droit. A propos des problèmes de délimitation maritime”, International law at the time of its codification, Essays in honour of Roberto Ago, (Milano: Giuffrè, 1987), 523–534; Francisco Orrego Vicuña: “The role of the International Court of Justice and other tribunals in the development of the law of maritime delimitation”, in Implementation of the Law of the Sea Convention through International Institutions, ed. Alfred H.A. Soons (Honolulu: Law of the Sea Institute, University of Hawaii, 1990), 601–625. 61  International Court of Justice, Arbitral Award of 31 July 1989 (1991), paras. 33–34.

Chapter 33

The Origin of the Principle of Natural Prolongation: North Sea Continental Shelf Cases Revisited Jin-Hyun Paik Introduction The idea of “an extension of something already possessed”1 has always underlain the history of the expansion of national maritime jurisdictions. This idea was well reflected in the dictum made by the International Court of Justice (hereinafter the Court) in the Anglo-Norwegian Fisheries Case that “it is the land which confers upon the coastal State a right to the waters.”2 The concept of natural prolongation which was first established as a fundamental concept of the continental shelf in the North Sea Continental Shelf Cases (hereinafter the North Sea Cases) was formulated on the basis of this idea. The concept was employed not only to provide a theoretical basis to the definition of the continental shelf but to explain the nature of the rights exercisable thereupon. Thus this concept enormously contributed to making a then emerging regime of the continental shelf more readily acceptable. At the same time, this notion necessarily entailed certain implications on delimitation, as the definition of the continental shelf is inherently related to its delimitation. As a result, the notion of natural prolongation has subsequently given rise to great confusion and controversy, especially in relation to the delimitation of the continental shelf.3

1  North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment, ICJ Reports (1969), para. 43. 2  Anglo-Norwegian Fisheries Case, Judgment, ICJ Reports (1951): 133. 3  The 1982 Tunisia/Libya Case most dramatically illustrated how the application of the principle of natural prolongation enunciated by the Court in 1969 could lead to widely differing results according to which the principle was interpreted and applied. Even though both parties in that case agreed that it was the principle of natural prolongation which was commanding, the difference in its interpretation, supported by the enormous amount of scientific works, resulted in totally conflicting claims being made against each other. Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, ICJ Reports (1982), 18.

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Lately in the Delimitation of the Maritime Boundary in the Bay of Bengal case,4 the International Tribunal for the Law of the Sea (hereinafter the Tribunal) was once again faced with the situation, in which the Parties to the dispute held very different views on the meaning of “natural prolongation” referred to in article 76, paragraph 1, of the United Nations Convention on the Law of the Sea (hereinafter the Convention), with significant implications on the question of delimitation. Unlike in the previous adjudications faced with similar situations, however, the Tribunal in this case embarked on clarifying the meaning of natural prolongation. In what appears to be one of the most memorable paragraphs, the Tribunal stated that “the notion of natural prolongation and that of continental margin under article 76, paragraphs 1 and 4 are closely interrelated. They refer to the same area.”5 The Tribunal further noted that “the reference to natural prolongation in article 76, paragraph 1, of the Convention, should be understood in light of the subsequent provisions of the article defining the continental shelf and the continental margin. Entitlement to a continental shelf beyond 200 nm should thus be determined by reference to the outer edge of the continental margin, to be ascertained in accordance with article 76, paragraph 4.”6 In fact, this was the first time since the North Sea Cases that the notion of natural prolongation was clearly defined. It remains to be seen whether this finding of the Tribunal would be able to put an end to the long-running controversy over the notion of natural prolongation and its implications to the delimitation of continental shelf, triggered by the 1969 Judgment of the Court. The purpose of this article is to examine the notion of natural prolongation as was first introduced by the Court in the North Sea Cases. The article analyzes the context in which the notion was introduced in 1969 and the meaning which the Court purported to confer on it. In so doing, the article attempts to show that this notion, despite its fundamental nature, lacked clarity from the outset and the ensuing confusion was thus inevitable.

Natural Prolongation as Basis of the Continental Shelf Regime

The Court in the 1969 Judgment used the term “natural prolongation” on numerous occasions.7 Despite its recurring use, the term did not necessarily 4  Delimitation of the Maritime Boundary in the Bay of Bengal Case (Bangladesh/Myanmar), Judgment, ITLOS Reports (2012): 4. 5  Id., para. 434. 6  Id., para. 437. 7  For instance, paras. 19, 41, 43, 85, 95 and 101 of the North Sea Cases.

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carry the same nuance from one paragraph to another. In addition, the term itself received no definition from the outset. The result was obvious, an extreme ambiguity on the meaning of natural prolongation. The matter became much worse since the paragraphs has been subsequently referred to and quoted out of context. It must be borne in mind, therefore, that one should first stay within the context of the Judgment in assessing what would be a precise meaning attributed to each of these paragraphs. As will be shown, perusal of the text discloses that the notion of natural prolongation was introduced to give a theoretical underpinning to the basic concepts of the continental shelf regime: first, inherency of the continental shelf right; and, second, the legal basis to the continental shelf entitlement. As a logical corollary of those concepts, natural prolongation was also to affect the rule for the delimitation of the continental shelf between States with opposite or adjacent coasts.

Natural Prolongation as a Basis of an Inherent Right

The characterization of natural prolongation as a fundamental concept of the continental shelf regime was first made against the German claim for a just and equitable share. The Court found that awarding a just and equitable share amounted to the apportionment of the areas concerned and this appeared to be wholly at variance with the notion that the continental shelf inherently appertained to a coastal State. Thus the process of delimitation is one of drawing a boundary line between areas which already appertain to one or other of the States not of apportioning an as yet undelimited area considered as a whole.8 According to the Court, the inherent appurtenance of the continental shelf to a coastal State emanated from the idea of natural prolongation. Therefore, the continental shelf right does not depend on occupation or on any express proclamation. In other words, it is inherent because the continental shelf is the extension or prolongation of land. In its most frequently quoted, or probably misquoted,9 paragraph, the Court stated: . . . the rights of the coastal State in respect of the area of continental shelf that constitutes a natural prolongation of its land territory into and under 8  North Sea Case, supra note 1, para. 18. 9  Many literatures on the North Sea Cases quoted paragraph 19 as indicating the legal basis of title to the continental shelf. However, what the Court tried to emphasize in this context was not the establishment of natural prolongation as a legal basis of the continental shelf entitlement or a principle for the delimitation of the continental shelf between States, but the inherent right of a coastal State to its continental shelf on the basis of natural prolongation.

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the sea exist ipso facto and ab initio, by virtue of its sovereignty over the land, and as an extension of it in an exercise of sovereign rights for the purpose of exploring the extension of it in an exercise of sovereign rights for the purpose of exploring the seabed and exploiting its natural resources.10 The Court’s emphasis on the inherency of the continental shelf right on the basis of natural prolongation created a conception that a State’s right to its adjacent continental shelf derived not so much from any concept of a legal right as from the geological fact of the unity between land shelf.11 Along with its distinction between delimitation and apportionment, this finding seemed to make an unmistakable impact on the question of delimitation. For the Court seemed to imply in defining the process of delimitation that “the areas of the continental shelf falling under the jurisdiction of each Party were predetermined ab initio, each being mutually exclusive of the other, so that the function of the delimitation of the continental shelf consisted merely in discerning and bringing to light a line already in potential existence,”12 without there being any question of apportionment between neighbouring States. Thus the notion of inherency significantly contributed to the espousal of a natural boundary.

10  North Sea Cases, supra note 1, para. 19. 11  For the same view, see D. Bowett, The Legal Regime of Islands in International Law (1979): 264. This was the most critical misconception the Judgment created. Perhaps the most enlightening critique against this finding was written by W. Friedmann. In his view, any reference to a natural extension can make sense only within the context of a system of legal values. He found it very disturbing that the majority of the Court treated the doctrine of the continental shelf as a kind of natural law principle. According to him, it is possible to argue that the continental shelf is the extension of the land territory beneath the seas, but to regard this novel extension of national sovereignty as a kind of natural law is to succumb to the same fallacies that vitiate so many theories of natural law: that is, to elevate a particular system of values into an absolute. He accurately pointed out that the doctrine of the continental shelf was the product of a particular phase of international relations and technology, not a principle of natural law. See W. Friedmann, “The North Sea Continental Shelf Cases. A Critique”, 64 American Journal of International Law (1970): 236–237. 12  Diss. Op. of Judge Oda, Case Concerning the Continental Shelf (Libyan Arab Jamahirya/ Malta), Judgment, ICJ Reports (1985): 158.

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Natural Prolongation as a Basis of the Continental Shelf Entitlement

After clarifying the legal nature of the continental shelf right of a coastal State, the Court encountered the question of what conferred such an inherent right on the coastal State. The question arose in the context of the Dutch and Danish contention that the basis of appurtenance must be “proximity” or “closer proximity” (or “absolute proximity”) whereby all those parts of the shelf are considered as appurtenant to a particular coastal State which are closer to it than they are to any point on the coast of another State.13 Both Parties argued that only a line drawn on the equidistance method would satisfy this and could be thus consistent with the basic continental shelf doctrine. Rejecting these arguments,14 the Court found that more fundamental than the notion of proximity as a test of appurtenance appeared to be the principle of natural prolongation.15 As the Court stated in its well-known passages, What confers the ipso jure title which international law attributes to the coastal State in respect of its continental shelf, is the fact that the submarine areas concerned may be deemed to be actually part of the territory over which the coastal State already has dominion, . . . in the sense that, although covered with water, they are a prolongation or continuation of that territory, an extension of it under the sea.16 Therefore, the concept of natural prolongation not only explained the inherency of the continental shelf right but constituted the legal basis of title to the continental shelf. Consequently, this concept entails the extent of the continental shelf. In short, the continental shelf right is inherent because the continental shelf is the natural prolongation of its land territory, and a State 13  North Sea Cases, supra note 1, para. 39. 14  Before declaring the natural prolongation as a basis of appurtenance, the Court first found that the notion of proximity was not implied by the general terminology employed to define the continental shelf in the literature of the subject, and in State proclamations and international conventions and other instruments. The Court picked up the term “adjacency” and examined the relationship between the two concepts. The Court concluded that there was no necessary, and certainly no complete identity between the notion of adjacency and proximity, and therefore the question of which parts of the continental shelf adjacent to a coast bordering more than one State fall within the appurtenance of which of them, remained to this extent an open one. See id., paras. 39–42. 15  Id., para. 43. 16  Id.

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can exercise the inherent right as far as the adjacent submarine areas are the natural prolongation of its land territory. The notion of natural prolongation thus constituted the most fundamental concept of the continental shelf regime. Despite its fundamental nature, however, the concept of natural prolongation did not receive any precise definition as such except the vague implications of physical character.17 Considering that this concept was enunciated in the context of the determination of the seabed boundary between adjacent States, it was hardly the intention of the Court to attempt to define the precise extent of the continental shelf by employing the notion of natural prolongation although this concept was basically formulated as one for the legal basis of shelf entitlement.18 Therefore, it would be neither easy nor appropriate to try to determine the outer limit of the continental shelf by employing the concept of natural prolongation. However, the question of the 17  However, it is by no means clear whether the Court’s view on the physical prolongation was basically a geological or geomorphological one. In the early part of the Judgment, the Court seemed to suggest the geomorphological prolongation (e.g., paras. 40–45), while it later emphasized the geological aspect of physical prolongation (e.g., paras. 94–96). The geological concept of the continental shelf was appreciated by some scholars, and later taken up by the broad-margin States (“margineers”) at the Third United Nations Conference on the Law of the Sea to encompass the whole continental margin within the regime of the continental shelf. For the geomorphological interpretation, see Denorme, “The Seaward Limit of the Continental Shelf”, in The Law of the Sea: National Policy Recommendations, ed. L. Alexander (RI: Law of the Sea Institute,1970), 263 and 268; Emery, “Geological Limits of the Continental Shelf”, 10 Ocean Development and International Law (1981): 4; Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/ United States of America) Judgment, ICJ Reports (1984), para 160; and Case Concerning the Continental Shelf (Libyan Arab Jamahirya/Malta), Judgment, ICJ Reports 1985, paras. 55 and 58–59. On the other hand, for the geological interpretation, see R. Jennings, “The Limits of the Continental Shelf Jurisdiction: Some Possible Implications of the North Sea Case Judgment”, 18 International and Comparative Law Quarterly (1969): 819; Anand (ed.), Law of the Sea: Caracas and Beyond (The Hague: Martinus Nihjoff, 1980), 145, 160–163, 179; and Hutchinson, “The Concept of Natural Prolongation in the Jurisprudence Concerning Delimitation of Continental Shelf Areas”, 55 British Yearbook of International Law (1984): 147–148. 18  Dissenting Judge Oda in the Libya/Malta Case strongly argued that the importance of the concept of natural prolongation has been since 1969 widely misunderstood, as too much emphasis was laid upon this concept, contrary to the real intention of the Court. He stated that the concept was used simply to justify the appurtenance to the coastal State of the continental shelf geographically adjacent to it, not to define the outer limit of the continental shelf. See Diss. Opinion of Judge Oda, Case Concerning the Continental Shelf (Libyan Arab Jamahirya/Malta), Judgment, ICJ Reports (1985): 153–154.

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definition of the continental shelf was nothing less than that of its outer limit. The notion of natural prolongation as a test of appurtenance defined the legal continental shelf and logically led to the question of its outer limit. This inherent logical link was in fact the cause of all those subsequent disputes as regards the meaning of natural prolongation. In other words, whether or not the Court intended to employ the concept to determine the outer limit of the continental shelf, once it assumed the formula used to define the continental shelf, the concept of natural prolongation was destined to be involved with the question of the outer limit and its consequent impact on delimitation.

Implication of Natural Prolongation on Delimitation: The Principle of Natural Prolongation as a Delimitation Rule

While the concepts of entitlement and of delimitation are distinct, there is nonetheless a close relationship between them.19 Whatever its precise meaning may be, the concept of natural prolongation defined as a legal basis of the continental shelf entitlement has a close bearing on the delimitation of the continental shelf between neighbouring States. Therefore, the principle of natural prolongation as a rule for delimitation emanates from the very fact of natural prolongation being a rule for entitlement. In this respect, the Court appeared to imply two distinct aspects of natural prolongation that could guide the delimitation; the geological or geomorphological aspect and the geographical aspect.

The Geomorphological or Geological Aspect

The corollary of the Court’s finding of natural prolongation as a legal basis of title to the continental shelf is that where natural prolongation ends, the legal continental shelf ceases to exist. Thus where the natural prolongations of two neighbouring States can be respectively identified, a boundary line will be decided along with the dictates of nature. But how to identify it? In this 19  The Court in the Libya/Malta Case stated that “That the questions of entitlement and of definition of continental shelf, on the one hand, and of delimitation of continental shelf on the other hand, are not only distinct but are also complementary is self-evident. The legal basis of which is to be delimited, and of entitlement to it, cannot be other than pertinent to that delimitation.” Case Concerning the Continental Shelf (Libyan Arab Jamahirya/Malta), Judgment, ICJ Reports (1985), para. 27.

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respect, the Court quite clearly suggested the geomorphological or geological natural prolongation by indicating an example of the Norwegian Trough.20 According to the Court, the shelf areas separated from the Norwegian coast by this Trough, which is 80–100 kilometre deep, could not be regarded as its natural prolongation.21 Therefore, where there were physical irregularities in the seabed that could end the natural prolongation, they constituted the valid grounds for the continental shelf delimitation.22 Since there could exist no continental shelf right without natural prolongation, this consideration should play a controlling role preceding other criteria. In this sense, the principle of natural prolongation in the geomorphological or geological sense constituted a delimitation rule which was of more fundamental character than any other rules for delimitation.

20  In the sense that the radical seabed disruption such as trenches, troughs and deep channels could terminate the natural prolongation and thus the continental shelf right, the Court seemed to imply the geomorphological aspect rather than the geological one. 21  North Sea Cases, supra. note 1, para. 45. 22  For the same understanding, see L.F.E. Goldie, “The International Court of Justice’s ‘Natural Prolongation’ and the Continental Shelf Problem of Islands”, 4 Netherland Yearbook of International Law (1973): 252–254. He made a specific comparison between the Norwegian Trough which does not disrupt the geological unity in the North Sea, and the Okinawa Trough which divides the seabed of the East China Sea into two major provinces and thus provides a clear boundary in terms of the Court’s formula of “natural prolongation”. However, Judge Jiménez de Aréchaga in his separate opinion in 1982 strongly criticized this interpretation of the Judgment. According to him, the geomorphological or geological sense of natural prolongation fundamentally contradicts Article 1 of the 1958 Geneva Convention, which the same Judgment proclaimed represented a rule of customary international law. He argued that the Court surely did not intend this but clearly recognized that a physical shelf was not present in every case since it stated that the continental shelf is an area physically extending the territory of most coastal States into a species of platform. Since geomorphology and geology were not admitted as the test of appurtenance of the continental shelf, they cannot constitute by themselves applicable criteria for the continental shelf delimitation. Therefore, physical features such as depressions, channels, sea-bed contours, geological structures cannot govern the determination of continental shelf boundaries. See Sep. Op. of Judge Jiménez de Aréchaga, Case Concerning the Continental Shelf (Tunisa/Libyan Araab Jamahiriya), Judgment, ICJ Reports (1982): 112–113, 117 ff. Judge Oda in his dissenting opinion also rejected the geomorphological or geological implication. See Diss. Op. of Jude Oda, id., 191–192.

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The Geographical Aspect: The Doctrine of Non-Encroachment

As has been already mentioned, the Court in this case found the equidistance principle unacceptable since it could not be identified with the notion of natural prolongation. In this connection, the Court pointed out a typical situation where the equidistance method would produce a result incompatible with natural prolongation, under which the case before the Court in fact would fall. . . . the use of the equidistance method would frequently cause areas which are the natural prolongation or extension of the territory of one State to be attributed to another, when the configuration of the latter’s coast makes the equidistance line swing out laterally across the former’s coastal front, cutting it off from areas situated directly before that front.23 It seems that the implication of this passage had little to do with the geological or geomorphological aspect of natural prolongation. This view is supported by the geophysical situation of this case, the area concerned being a shallow sea without any fundamental physical discontinuity. It can be stated, therefore, that the Court here suggested another aspect of natural prolongation applicable to delimitation. It appears that natural prolongation here was a concept which emphasized the geographical continuation or extension seawards of each State’s coastal front.24 The impact of this concept of natural prolongation on delimitation was that delimitation should not encroach upon the geographically identified natural prolongation of other coastal States. The idea of nonencroachment was further emphasized in the operative part of the Judgment:

23  North Sea Cases, supra note 1, para. 44. 24  Sep. Op. of Judge Jiménez de Aréchaga, Case Concerning the Continental Shelf (Tunisa/ Libyan Araab Jamahiriya), Judgment, ICJ Reports (1982), 116 ff. Judge Jiménez de Aréchaga argued that the real meaning of natural prolongation in this case is merely that the continuation of the territory into and under the sea should be based on the actual baseline. Thus he emphasized that the basic corollary of natural prolongation would be the nonencroachment in front of and close to the coast of a State. He added that the principle of non-encroachment, being an equitable principle, was not a rigid one and should be flexibly used to adapt itself to many situations. This interpretation of natural prolongation is, according to him, confirmed by the raison d’être of the continental shelf regime, which was rapidly accepted by coastal States because it prevented a few advanced States from exploiting the sea-bed resources in front of other States. However, this view appeared to be at variance with the Judgment in many ways.

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delimitation is to be effected by agreement in accordance with equitable principles, and taking account of all the relevant circumstances, in such a way as to leave as much as possible to each Party all those parts of the continental shelf that constitute a natural prolongation of its land territory into and under the sea, without encroachment on the natural prolongation of the land territory of the other. . .25 (emphasis added) Thus it seems that the notion of non-encroachment was inherent in the geographical aspect of natural prolongation, and the former was a reflection of the latter. However, it would not be difficult to imagine where the main difficulty with this aspect of natural prolongation lay. As a matter of logic, the postulate of this concept was that the geographical natural prolongation is identifiable. In other words, in order for the doctrine of non-encroachment to play a role in delimitation, the very object which should not be encroached has to be identified as a condition to apply it. When the Court suggested the geomorphological aspect of natural prolongation, it at least implied that the seabed disruptions could terminate the natural prolongation, thus providing some, if not unquestionably clear, clues to the test of identification. As regards the geographical aspect, however, the Court’s attitude seemed to be much more elusive.26 In addition, the way the Court presented this idea was also quite passive. It did not attempt to suggest any criterion for the identification of geographical natural prolongation but simply stated that in certain localities, the use of the equidistance method would result in the cutting-off of areas situated directly before the coastal front, which should be avoided in delimitation.27 Furthermore, since the concept of natural prolongation should be understood as the prolongation of the land territory as a whole, that is, the continental mass, it is, as a matter of logic, questionable how such a concept could determine which part of shelf belongs to a particular State, which is after all a politically defined concept. Needless to say, physical geography and political geography are entirely distinct and unrelated concepts.28 25  North Sea Cases, supra note 1, para. 101(c)(1). 26  For the same view, see G. Jaenicke, “The Delimitation of the Continental Shelf on the Basis of the Natural Prolongation Concept”, in The Law of the Sea and Ocean Development Issues in the Pacific Basin,  ed. E. Miles & A. Scott (Honolulu, University of Hawaii, 1983), 547–560. 27  Thus it was suggested that the natural prolongation criterion was very difficult, if not impossible, to apply to adjacent States on a common shelf. See D. Bowett, supra note 11, p. 182. 28  Professor Brown pointed out that “it may be reasonable to speak of the continental shelf as being the natural prolongation of the land territory as a whole . . .; it is quite another

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In this respect, the Court’s later remark about the use of geology needs attention. As a factor to be taken into account in the course of the negotiations for a boundary, the Court found the geology of the continental shelf useful since it could help to find out “whether the direction taken by certain configurational features should influence delimitation because, in certain localities, they point-up the whole notion of the appurtenance of the continental shelf to the State whose territory it does in fact prolong.”29 Ambiguous as this remark might be, it seemed to imply that the geographical natural prolongation or, at least, its direction could be identified by the use of geology in some situations.30 But how it could be done is something which was completely left to everyone’s imagination. Conclusion The Court’s approach to the concept of natural prolongation in the North Sea Cases was basically passive in the sense that the court did not attempt to define its meaning first and then to deduce its implications on delimitation, but simply illustrated some occasions where the natural prolongation could play a role in the context of delimitation. Thus the task of the commentators on the Judgment was to infer the meaning of natural prolongation by analyzing these illustrations and reading the underlying intentions of the Court. However, as it turned out, this process has subsequently given rise to great confusion and controversy on the concept of natural prolongation. This was in a sense inevitable because there was simply not enough in the Judgment to draw its definition, even with the aid of the best imagination. The lack of content was too obvious and painful especially considering the repeated emphasis on its fundamental nature. It was small wonder that many contending parties to boundary disputes in fact exploited this pitfall for the purpose of justifying their predetermined goals, and this in turn made the whole matter all the more chaotic. The danger of dogmatic and arbitrary interpretation had always

matter to say that a particular area of shelf is the natural prolongation of the territory of State A, that is, of a politically determined area.” Therefore, in his view, it is surely the case that any part of the continental shelf is a natural prolongation of the territory of any State which lies on the same continental land-mass. See E.D. Brown, Seabed Energy and Mineral Resources and the Law of the Sea, Vol. 1 (London: Graham & Trotman, Limited, 1984). 29  North Sea Cases, supra note 1, para. 95. 30  In fact, this interpretation was the basic legal position of Libya in the later Tunisia/Libya Case.

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been there, and it was tempting to try to make a premature generalization after examining the Judgment. The Court basically saw that the use of the equidistance method in this case would produce an unacceptable result. Thus it sought a legal basis to avoid its use. It found such a basis in the concept of natural prolongation. The logic was that since the use of the equidistance method would encroach upon the natural prolongation, which is a fundamental concept of the continental shelf regime, it could not be applied to the present case. However, a fallacy was that the Court simply pretended that everyone would easily identify the natural prolongation that should not be encroached, which was obviously not the case in the least. The result was that despite its allegedly fundamental status, the doctrine of non-encroachment appeared to have little substance. The most one could rightly expect from this doctrine was that the principle of natural prolongation could be employed only to show that an equidistance line was inapplicable in certain situations where the geographical configuration made it cut a coastal State off from the areas situated directly before its coast. It seemed difficult to attach a more positive meaning to the principle than this. The Court went on to suggest the other aspect of natural prolongation. Relatively clearly, the Court endorsed some geomorphological and geological irregularities in the seabed as disrupting the natural prolongation of land territory. The geomorphological or geological aspect of the principle was of fundamental character since it could conclusively determine a boundary whereas the geographical aspect was only preliminary in the sense that it could not per se guide delimitation and would be employed to decide the applicability of certain methods. But it was again far from clear what type of seabed irregularities could be considered as disrupting the continuity of prolongation. The principle of natural prolongation as a delimitation rule was from the outset full of questions. It was essentially due to the lack of the clarification of the fundamental concept. Looking back upon the 1969 Judgment on natural prolongation, it is worth noting that the inherency of the continental shelf right is enshrined in article 77, paragraph 3, of the Convention. In addition, article 76 of the Convention defines the continental shelf in precise terms with reference to the natural prolongation and the outer edge of the continental margin, which the Tribunal in the Bay of Bengal case in 2012 found to refer to the same area.31 With these developments, it is hoped that the confusion and controversy over the notion of natural prolongation and its implication on delimitation will subside in the future. 31  See supra note 5.

PART 10 The International Tribunal for the Law the Sea

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Chapter 34

Fraud on the Tribunal? Jean-Pierre Cot Fraud on the Tribunal?1 Stephen Schwebel recently wrote an editorial comment for the American Journal of International Law entitled “Celebrating a Fraud on the Court”.2 Judge Schwebel was referring to the Nicaragua v. United States case before the International Court of Justice. Is the qualification appropriate for the M/V Louisa case before the International Tribunal for the Law of the Sea? I do not intend to delve into the specifics of the case.3 But we missed Judge Caminos in our deliberations on the issue. His sharp legal mind and his vast experience would have been most helpful. An unfortunate accident prevented him from being able to give us the benefit of his wise views on the issue. In a nutshell, the case opposed Saint-Vincent and the Grenadines to the Kingdom of Spain. Spain arrested the Louisa and a smaller boat, the Gemini III, in the port of Cadiz and accused its owners of illegal plundering of submarine heritage. The port of Cadiz was the main port for galleons sailing out to America and back during the colonial period. Its waters are rich in shipwrecks dating back to that time. Sage, the American company owning the Louisa, affirmed it was only interested in gas and oil. Its owners showed no interest whatsoever in marine archeology. It did share the cost of exploration with Spanish treasure-hunters, but stated that it did not know whether the Spaniards on board the boat had the necessary archaeological permit. In the written and oral proceedings, counsel for Saint Vincent produced evidence as to equipment on the boat which was used specifically for hydrocarbon research, whereas Spain considered the venture as clearly treasure hunting. At the end of the oral proceedings, the Tribunal asked Saint Vincent to produce the agreement between Sage and the Spanish treasure-hunters. The agreement was filed with the Tribunal a week after the closure of the proceedings. It clearly established the full knowledge and interest of the owners of

1  Many thanks to Arman Sarvarian and Sir Michael Wood for their comments on the draft. 2  S. Schwebel. Celebrating a Fraud on the Court. 105 A.J.I.L. (2012), pp. 102–105. 3  See Cot, separate opinion, ITLOS, M/V Louisa, Judgment, 28 May 2013.

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Sage in archaeological research, contrary to what had been asserted during the proceedings. Did counsel for Saint Vincent mislead the Tribunal? What could the Tribunal do about the matter? The Tribunal confined itself to expressing regret at the belated production of the contract.4 What else might it have done? The legal framework of the question, i.e. the issue of ethics applicable to counsel before international courts and tribunals, is an interesting one. I have had the benefit of consulting Dr. Arman Savarian’s “Professional Ethics at the International Bar”, published by Oxford University Press, and thank him for the permission to use his major contribution to a question which to my knowledge has not been fully explored. I shall concentrate on the specific issue of ethics applicable to counsel before the International Court of Justice and the International Tribunal for the Law of the Sea with some references to ‘classical’ interstate international arbitration, in particular at the Permanent Court of Arbitration. Other international courts and tribunals have addressed the issue, but in very different contexts. For example, the International Criminal Court stands in a very different relationship to counsel appearing before it. It has adopted a code of conduct laying down a specific procedure to deal with ethical problems. Other specialized courts and tribunals have likewise found ways and means of addressing these issues. The ICJ, ITLOS and the PCA have no such code of conduct. No Statute, Rules or Guidelines mention the issue. Learned counsel have considered it unnecessary.5 As the argument goes, the small ‘invisible bar’ appearing before international courts and tribunals is a guarantee of high technical and moral standards. It does not call for any disciplining. As to the agents, they represent sovereign States. It is inconceivable for a court or tribunal to seek to control their actions. Quite to the contrary, as the jurisdiction of international courts and tribunals is entirely dependent upon States’ consent, the judiciary must bow in all cases to the supremacy of State sovereignty as expressed in the statements and actions of their representatives. Cases of alleged fraudulent conduct by counsel before international courts and tribunals have been rare. But they are interesting to recall. In the Fur Seals in the Bering Sea case, decided by an arbitral tribunal in 1893, the Government of the United States produced Russian documents which had been translated into English and ‘embellished’ to support the U.S. case. The ‘falsification’, to use the term of the British agent, appears to have been slipped 4  Judgment, para. 47. 5  Berman, Pellet.

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in without the knowledge or consent of the agent of the United States. The text was immediately rectified and did not involve any misconduct by the agent. In the case of the Franco-Hellenic Lighthouses,6 one of the agents referred to a document, but could not guarantee its authenticity. Upon questioning by the President of the Court, the agent declared that the document was not essential and withdrew it. In Tunisia vs. Libya (Application for Revision), Tunisia accused Libya of having misled the Court during the 1982 proceedings on the merits of the case. Appearing for Tunisia, Professors Virally and Dupuy argued that Libya had MISLED the Court by failing to diisclose the existence of a Resolution of the Council of Ministers of Libya, 28 March 1968 and the extent of the overlap of oil concessions between the two States.7 The Agent for Libya, Mr. El Magur, protested against the ‘insulting remarks’.8 The Court ignored the allegations. It noted that the Resolution of the Council of Ministers had been published in the Libyan Official Gazette. It considered that Tunisia had not exercised the necessary diligence to obtain the concession boundary co-ordinates. By a unanimous decision, including both ad hoc judges, it found the request for revision inadmissible.9 The individual declarations or opinions do not refer to the allegations advanced by Tunisian counsel. The debate between Judge Schwebel and Paul Reichler, counsel for Nicaragua in the case between it and the United States, in the columns of the A.J.I.L. is of a different nature. Judge Schwebel accused the agent for Nicaragua of having MISLED the Court by asserting that Nicaragua had in no way assisted the Salvador opposition. That statement was shown to be false some years after the decision of the Court. Mr. Reichler challenged the accusation. The incident having been discovered years after the Court’s judgment, the Court did not have the opportunity to take action. In the Qatar v. Bahrain case, Qatar produced 82 documents that were revealed to be false during the written proceedings. Bahrain brought the issue to the attention of the President of the Court. Qatar subsequently withdrew the documents before the oral hearings. But Bahrain insisted during the hearings that Qatar had ‘polluted’ the whole procedure.10

6  7  8  9  10 

Judgment, 17 November 1934, Series A/B no 62; see P.C.I.J., 16th report, E series, no 16, 186. ICJ, Oral Arguments, Minutes of the Public Sittings (1985): 141, 153, 155, 180. ICJ, Oral Arguments, Minutes of the Public Sittings (1985): 191. Judgment, ICJ Reports (1985): 192. Lauterpacht, 8 June 2000, CR 2000/11, pp. 11–15. See also Fortier, sep. op., 452, para. 4.

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All these cases concerned undisclosed or falsified documents or documents of uncertain authenticity. In the Fur Seals in the Bering’s Sea, Franco-Hellenic Lighthouses and Qatar v. Bahrain cases, the problem was solved before the opening of the oral proceedings. In the Nicaragua v. United States case, the alleged fraud was discovered some ten years after the judgment and is still denied by Mr. Reichler. In Tunisia vs. Libya, the Court rejected the allegations. While these precedents do give some indication as to the jurisdiction of the court or tribunal to deal with the matter, they give no guidance as to the applicable law. Jurisdiction of the court or tribunal is the preliminary question. Does the court or tribunal have authority to deal with the issue? The power of the court or tribunal is an inherent power. It is necessary to deal properly with the case and ensure respect for equality between the parties involved. Such a power was already affirmed in 1814 in the Bay of Fundy case.11 The President of the arbitral tribunal asked the agents to respect the elementary principles of loyalty in the debates. The principles are founded on the elementary requirements of administration of justice and organization of the procedure (Chester Brown, “The Inherent Powers of International Courts and Tribunals”, 66 BYB [2005], pp. 195–244). The International Court of Justice summed up the situation in the Nuclear Tests (Australia v. France) case: 23. In this connection, it should be emphasized that the Court possesses an inherent jurisdiction enabling it to take such action as may be required, on the one hand to ensure that the exercise of its jurisdiction over the merits, if and when established, shall not be frustrated, and on the other, to provide for the orderly settlement of all matters in dispute, to ensure the observance of the ‘inherent limitations on the exercise of the judicial function’ of the Court, and to ‘maintain its judicial character’ (Northern Cameroons, Judgment, ICJ Reports 1963, at p. 29). Such inherent jurisdiction, on the basis of which the Court is fully empowered to make whatever findings may be necessary for the purposes just indicated, derives from the mere existence of the Court as a judicial organ established by the consent of States, and is conferred upon it in order that its basic judicial functions may be safeguarded.12 The inherent power of courts and tribunals has never been challenged. It only comes into play in the absence of more precise rules relating to the proceedings, as is the case with the courts and tribunals considered here.

11  J. Moore, International Adjudications, vol. VI (Oxford: Oxford University Press, 1933), 22. 12  Nuclear Tests (Australia v. France), Judgment, ICJ Reports (1974): 253 at pp. 259–260.

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Do these inherent powers allow courts and tribunals to draft more precise rules of conduct and sanctions to ensure their respect? The answer is not so clear-cut. International courts and tribunals have not hesitated to adopt practice directions. The directions are not compulsory for the parties. But counsel do respect them, as they well know the risks entailed should they not. Determination of the applicable rules is not an easy task, given the variety of legal traditions within international courts and tribunals. The Statute and Rules of the Tribunal contain no ethical rules or even recommendations addressed to counsel. More recently established regional or specialized courts and tribunals, by contrast, have adopted codes of conduct. Most domestic codes of conduct applicable to members of the bar appearing before international courts and tribunals do not oblige these counsel to respect the domestic rules of conduct in the international fora. The British code of conduct appears to be an exception in that respect, as members of the British bar are expected to comply with their domestic code of conduct whatever tribunal they are addressing. This does not mean that members of other bars are free to act as they wish! It may be that they are not placed under any obligation by their domestic code of conduct. But they are obliged to respect the code of conduct of the international jurisdiction they are addressing . . . if and when it exists. In the absence of such a code of conduct, they must respect the rules of general international law applicable to international litigation. The diversity of legal traditions complicates the determination of the rules applicable in the absence of a formal code of conduct. The main opposition is between the common law tradition on one hand and the civil law or romanogermanic tradition on the other. Some ethical rules are opposed in the two traditions. The classic example is that of witness-proofing. In the civil law tradition, contact between witness and counsel before the hearing is strictly prohibited. Common law calls for counsel to indicate the general sense of the testimony as to allow for preparation of the cross-examination. Witness-proofing is compulsory in American law. It would be considered a criminal offence in the civil law system! The International Law Association has tried to bridge the differences and come up with a core of principles applicable in international courts and tribunals. The I.L.A. working group drafted a set of minimalist requirements published under the auspices of the Association in 2010 under the title “The Hague Principles on Ethical Standards for Counsel Appearing before International Courts and Tribunals”. These principles applicable to advocates and counsel were drafted after the I.L.A. adopted the ‘Burgh House Principles’ applicable to members of international courts and tribunals.

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The Hague Principles are a useful tool. They cannot however be considered as compulsory. Certain rules are very precise. Others are of a more general nature. International courts and tribunals are invited to pick and choose from among these rules and principles the elements of codes of conduct they might feel it appropriate to adopt. In the absence of such a code of conduct, are any of these rules compulsory in international adjudication? Article 293 of the United Nations Conven­tion on the Law of the Sea calls upon courts and tribunals to apply the Convention and other rules of international law not incompatible with the Con­vention. The Statute of the International Court of Justice provides in Article 38 that the Court shall apply international conventions, international custom, the general principles of law recognized by civilized nations and, subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations. General principles of international law include a certain number of ethical principles applicable in all major legal systems. The Council of Bars and Law Societies of Europe (C.C.B.E.) represents the major European bars and law societies, reflecting the two traditions of common and civil law. The C.C.B.E. adopted a Code of Conduct for European Lawyers in 1988 and a Charter of Core Principles of the European Legal Profession in 2006. The distinction between the Code and the Charter is a relevant one for our subject. The Code is a binding text of precise norms the bars and law societies have agreed upon. The ten core principles are common to the national and international rules regulating the legal profession . . . [they] underlie the various national and international codes which govern the conduct of lawyers. European lawyers are committed to these principles, which are essential for the proper administration of justice, access to justice and the right to a fair trial . . . Bars and law societies, courts, legislators, governments and international organisations should seek to uphold and protect the core principles in the public interest. Principle ‘i’ (respect for the rule of law and the fair administration of justice) describes the lawyer as an ‘officer of the court’ or as a ‘minister of justice’. “A lawyer must never knowingly give false or misleading information to the court . . .”. These principles are not specifically European. They appear in all codes of conduct, domestic as well as international, for instance in the codes of the International Bar Association, the International Criminal Court, etc. They con-

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stitute general principles of international law and are, as such, applicable in all international judicial proceedings if not explicitly put aside. Do such principles apply to agents and co-agents or only to advocates and counsel? The agent is the representative of a sovereign State. Is it conceivable that he be under the authority of a judicial body whose jurisdiction depends upon the consent of the said State? Most judicial authorities that have adopted a code of conduct distinguish between agents on one hand and advocates and counsel on the other. For instance, the European Court of Human Rights demands of advocates and counsel that they be members of a European bar. But the same qualification is not required of agents. Agents are appointed freely by the States concerned and are often members of the civil service. Before the ICJ, ITLOS and the PCA, parties are free to appoint whomever they wish. No specific qualification is called for. The asymmetrical position of agents and counsel before certain specialized courts and tribunals stands to reason as far as representation is concerned. But such an asymmetry cannot be sustained once the procedure is ongoing. The overriding principles are those of fairness and equality between the parties. If the case concerns two States, as in the interstate litigation we are concerned with in this contribution, respect of the sovereign rights of a party finds its limit in the threat to the principle of equality of parties, and thus to the sovereignty of the opposing party. As stated by Article 4 of the French declaration of human rights from 1789, “Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights.” The same principle applies in this situation. Furthermore, I do not know of any statement on behalf of a sovereign State claiming a right to disregard these fundamental principles of ethics and proper conduct. Quite to the contrary, from the earliest days of arbitration, States have accepted to comply, as in the Bay of Fundy case, where agents for the parties “were sworn by Mr. Justice Mackay to the faithful performance of their duty”.13 Compliance by agents and co-agents with ethical principles and codes of conduct is all the more necessary today. Globalization is in the process of changing the nature of international adjudication. When international litigation concerned a small number of cases before the Permanent Court of Arbitration or the Hague Court, agents, as diplomats representing their countries, had a specific profile. Such is no longer the case. The proliferation of international 13  J.B. Moore, op. cit., 22.

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tribunals and diversification of litigation have opened up international litigation. As a consequence, the international bar has been substantially enlarged. The agent is no longer in all instances de facto subordinate to the sovereign authority of the State he is claiming to represent. Litigation no longer rests upon a clear distinction between public and private proceedings. Agents or co-agents act more and more often for private parties, under the cover of interState litigation and the fig leaf of diplomatic protection. The development is quite frequent in the law of the sea. The use of flags of ‘open registry’ or ‘flags of convenience’ has become frequent. The flag State often shall not follow suit after registration and shall not be involved in litigation concerning such ships. U.N.C.L.O.S. has taken the situation into account. Article 292.2 on prompt release provides: “The application for release may be made only by or on behalf of the flag State of the vessel.” ‘On behalf’ means that shipowners may apply for release of the vessel and crew with the authorization of the flag State if the latter does not care to take direct action. In the case of the Louisa, it is highly improbable that the authorities of Saint Vincent closely monitored the proceedings. The agent of Saint Vincent never appeared before the Tribunal. The co-agent, an advocate of the bar of Saint Vincent, left soon after the oral proceedings began. The brunt of the proceedings was shouldered by the other co-agent, an American lawyer who was also the personal lawyer of the shipowner, John Foster.14 Globalization of international litigation definitely evidences progress of the rule of law in international relations. Multiplication of new forms of litigation is implementing the decision to resort to international law to settle international and transnational disputes. The enlargement of the international bar is to be welcomed. It is renewing the traditional ‘invisible bar’, a bar with high standards, but very limited. Such a change in the international bar calls for a change in the normative framework of international litigation. Objections to any regulation of the international bar, as voiced for instance by Sir Franklin Berman,15 were based on the

14  Problems arising in such cases are not unheard of. In The Grand Prince Case (Belize v. France), Prompt Release, Judgment, 20 April (2001). Cf. sep. op. Laing and decl. Cot, ITLOS had to deal with a similar difficulty. The representativeness of the agent was not all that clear. Governmental Departments of Belize seemed to have diverging views as to the conduct of the proceedings. But there was no allegation of misconduct in the proceedings. 15  Zimmermann et al., The Statute of the International Court of Justice. A Commentary (Oxford, Oxford University Press, 2006), art. 42, 975–976.

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high standards of the ‘invisible bar’. They do not take into account the appearance in international litigation of lawyers specializing in domestic law, but quite ignorant of the specific rules of international litigation. It is no doubt a pity that the international bar does not have its own organization and disciplinary rules and procedures. The absence of a code of conduct complicates the situation. International jurisdictions such as the ICJ, ITLOS or the PCA have no explicit authority to apply elementary ethical principles recognized in all major domestic fora, even when a principle as basic as that of the equality of parties is endangered by objectionable dealings. The difficulty is not a legal one, but a political one. I consider that international courts and tribunals have the inherent power to adopt a code of conduct and thus to clearly signal to the parties the ethical norms applicable in the proceedings. A formal code of conduct would be most helpful. It would identify the applicable rules of conduct. Such is not the case today. International litigation is more of an accusatory nature than of an inquisitorial tradition. Common law is the general model when examination of witnesses is called for. But the specific rules of examination and cross-examination are somewhat fuzzy. They follow the general rule applicable in common law, but without the precise rulings. When counsel asks a leading question in the Anglo-American tradition, he must reformulate the question. Such is not always the case in international proceedings. Judges and advocates are not necessarily acquainted with the subtlety of the proceedings. In the case of the Louisa, Spanish counsel only objected to the formulation of questions by the American lawyer when they considered that the honour of the Kingdom of Spain was in question . . . Such an asymmetrical situation offers a considerable advantage to a party mastering the techniques of common-law examination. International courts and tribunals are reluctant to adopt codes of conduct. States parties fear a restriction to their sovereign right to organize proceedings as they wish. In my opinion, this reluctance is misplaced. Globalization of international judicial proceedings calls for a new look at the issue. States should not fear such a step, but rather be reassured by the spelling out of explicit rules designed to protect them from eventual manoeuvres. But reluctance is there. The absence of a code of conduct does not mean that parties are free to breach fundamental ethical principles. But without explicit rules, implementation of such principles is a complicated and uncertain venture. The president of the court or tribunal may try to defuse the issue beforehand when possible. If it is not possible, decisions must be taken without formal proceedings allowing both parties a fair hearing. Such was the case in ‘Louisa’. The alleged misconduct was unveiled after closure of the oral hearings.

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Such a situation is detrimental to both parties. The party victim of the alleged misconduct has no available procedure to put its case clearly before the judge. The party allegedly responsible of the misdeed cannot answer the claim or explain its conduct. The court or tribunal is in an embarrassing position. It cannot allow misconduct without putting in jeopardy its final ruling. But it cannot clearly establish the facts after a proper hearing of both parties. Sanctions are a further problem. Codes of conduct adopted by specialized courts and tribunals set explicit rules as to the proceedings, but also as to sanctions. They adapt the sanctions specified by the code to the gravity of the offense. The court or tribunal can thus choose a sanction appropriate to the nature of the case. Without a code of conduct spelling out the sanctions, it is difficult to impose formal sanctions. Violation of fundamental ethical principles nevertheless calls for some sort of reaction. There is a price to be paid. The alleged misconduct has an obvious influence on the deliberations of the court or tribunal and on its outcome. It stains the credibility of the arguments advanced by the offender. If the court or tribunal expresses its concern as to the situation, such a dictum may affect the reputation of the counsel involved. The small world of international litigation will duly take note. Other informal sanctions may be called for, as suggested by A. Sarvarian. Proceedings may be held on the incident before national authorities. The court or tribunal may signal the misconduct to domestic bars or courts, as is provided for in certain codes of conduct. Such a step could be considered as within the inherent powers of the international court or tribunal. If a State party fails in its claim before the international court or tribunal because of the misconduct of its agent or counsel, it may well introduce proceedings before its own domestic courts. The private person acting within the framework of diplomatic protection before an international court or tribunal could also seek redress before national courts. In the absence of a proper code of conduct, these options are less than satisfactory. One can only hope that time may come when international courts and tribunals will adopt clear formal rules embodied in codes of conduct instead of trying to implement basic standards accepted by all, but lacking precision as to their content and their consequences. Judicial decisions are taken by courts and tribunals at a certain moment. The judge turns to the tools available at that time. International courts and tribunals, when lacking recourse to a proper code of conduct, should at least warn counsel and advocates beforehand that they are expected to abide by fundamental ethical rules. Insertion of a reference to these principles and

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standards in the practice directions of international courts and tribunals would be a modest and useful first step. Modest, as practice directions are not formally compulsory. Such a signal could not be interpreted as encroaching upon the sovereignty of parties appearing before the court or tribunal. Useful, so that counsel and advocates know full well that disregard of these fundamental ethical standards, implicit in all judicial proceedings, whether domestic or international, is not without consequences for them as well as for the State they represent.

Chapter 35

The Juridical Personality and Nature of the International Tribunal for the Law of the Sea Miguel García García-Revillo Introduction This work attempts to analyze both the juridical personality and juridical nature of the International Tribunal for the Law of the Sea (ITLOS). In view of the rules that govern it, its characteristics and its relation to other entities or States, does the Hamburg Tribunal have an international juridical personality? If so, to what lengths does it extend? Is the International Tribunal for the Law of the Sea a subject of the International Law? If that were case, how would it be classified? Would it be considered an international organization? Or rather would it be better to view it as a new type of international entity that might be called, for example, ‘an autonomous international judicial institution’, or more simply ‘an international tribunal’.

ITLOS is not an Organ of any Pre-Existing International Intergovernmental Organization

First of all, the States involved in the creation of ITLOS clearly had no desire to make it an organ of some other existing international organization, whether the United Nations, the International Seabed Authority, or a hypothetical international organization that might have emerged from the United Nations Convention on the Law of the Sea (UNCLOS) and whose plenary organ would have been the Meeting of States Parties (MSP), just to mention those most closely connected to ITLOS. In respect to the United Nations Organization, ITLOS was created by an international conference convoked by and held under the auspices of the UN1 but was not created by the UN itself. In fact, ITLOS’ structure and budget are quite separate from those of the UN. Moreover, on 18 December 1997, both institutions concluded what was called an Agreement on Cooperation and 1  UNGA, Res. 3067 (XXVIII) of 16 November 1973.

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Relationship between the United Nations and the International Tribunal for the Law of the Sea,2 something that is typical of relations between equals rather than what would otherwise be a connection between an organization and an organ that is a part of it.3 Moreover, in the Agreement the United Nations recognizes ITLOS “as an autonomous international judicial body” (art. 1).4 As for the International Seabed Authority (ISBA), it is an international organization from which ITLOS is completely detached and has been since the Third United Nations Conference on the Law of the Sea (III Conference), despite which, clearly, there are logical points of contact which include: the possibility that the Authority adopt recommendations of a general nature to assure the representation of the principal legal systems of the world and equitable geographical distribution in the selection of the members of the Seabed Disputes Chamber (art. 35.2 ST), or its contribution to the expenses of the Tribunal (art. 19.1 ST), or even concluding agreements between both Secretariats on administrative questions.5 Finally, the principal difficulty in regards to attaching ITLOS to some hypothetical international organization resulting from the Convention of 1982, whose plenary organ would be the MSP, is that such an organization does not exist.6 Undeniably, the MSP has functioned as the real supervisor of the Tribunal, not only for budgetary and personnel issues, but also in terms of its external relations, ‘authorizing’ it, at the time, to begin negotiations with the UN and the ISBA on a possible relations agreement, and with the Federal Republic of Germany regarding the headquarters of ITLOS.7 However, this does not imply that the relationship that exists between ITLOS and the MSP is that of two organs of the same international organization (assuming, as hypothesis, the existence of such an organization). The relationship, instead, might reflect that between an autonomous institution and the external controls imposed 2  UNGA, Res. 52/251, 8 September 1998, adopted by consensus. 3  In this sense, ITLOS does not figure among the principal organs or subsidiaries of the UN, having been created in a way that is clearly distinct from methods used in creating the latter. (art. 7 of the UN Charter). 4  Emphasis added. 5  Vid. speech by the President of ITLOS, Dolliver M. Nelson, 24 October 2003. 6  Unlike, for example, certain international conventions dealing with environmental issues (like the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, of 1989, or the Rio Conventions on Biodiversity and Climate Change of 1992), we see that in the case of UNCLOS, a permanent administrative structure of its own has never been created (secretarial services are provided by the United Nations), neither has it constituted other bodies nor formed its own property distinct from the States. 7  Doc. SPLOS 14, para. 33.

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on it by the treaty that constituted it. Apart from this, one should keep in mind that the MSP adopted the Agreement on the Privileges and Immunities of the International Tribunal for the Law of the Sea on 23 May 1997, with its article 2 expressly recognizing the juridical personality of ITLOS and its capacity to contract.

The Institutional, International, Interstate and Autonomous Dimension of ITLOS

Apart from this, the institutional, international, interstate and autonomous dimension of the Hamburg Tribunal is patent. It is institutional, in the sense that its existence as a distinct entity is ostensibly clear—including physically (having as it does its own headquarters, district, flag and emblem).8 It is international to the extent that it is ruled by norms of international law, it has relationship agreements with subjects of international law, which submit disputes and requests to it and decide them by application of the Convention and “other rules of international law not incompatible with it”, without prejudice of its power, if the parties so agree, “to decide a case ex aequo et bono” (arts. 23 ST and 293 UNCLOS).9 It has an interstate character to the degree that its origins stem from an agreement among States, and to the degree that the process of monitoring its functioning is carried out at a meeting of States and to the extent that its purpose is to administer justice primarily to those same States. ITLOS is autonomous given the fact that it has its own organizational structure, it is selfrepresentative, has its own budget, and its own ability for self-regulation and self-organization. Remember too, that in the Agreement on Cooperation and Relationship between the UN and ITLOS, the former expressly recognizes the Tribunal “as an autonomous international judicial body” (art. 1).10 8  9 

See Headquarters Agreement, articles 3 and 13, i.a. Emphasis added. Another thing is that for certain disputes, including some related to the seabed, the Tribunal could apply other types of norms. In this sense, article 38 ST establishes that “In addition to the provisions of article 293, the [Seabed Disputes] Chamber shall apply: a/ the rules, regulations and procedures of the Authority adopted in accordance with this Convention; and b/ the terms of contracts concerning activities in the Area in matters relating to those contracts.” But this in no way modifies, in my view, the fact that the Tribunal is subject to International Law and that its juridical status is formed by norms of International Law. 10  Emphasis added.

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International Personality of ITLOS

If the Tribunal is not an organ of a pre-existing entity and yet clearly has a dimension that is institutional, international, interstate and autonomous, what is the International Tribunal for the Law of the Sea? At the outset, it should be pointed out that the United Nations Convention on the Law of the Sea says nothing about the personality or juridical nature of ITLOS, neither in its body nor in Annex VI—unlike what occurs with the International Seabed Authority, whose personality is specifically recognized in article 176.11 Such an omission might be understood, in principle, in a negative sense: If the drafters of UNCLOS did not recognize the juridical personality of the Tribunal, as they did for the ISBA, it is because they rejected that possibility. However, developments subsequent to the text of Montego Bay, which we shall focus on shortly, point us in quite the opposite direction. Whatever is the reason—voluntary omission,12 lack of consensus on this particular point at the time the Convention was adopted (although there had been consensus on the creation of the Tribunal) or because it was considered more prudent to leave it to the States Parties, who could later outline the Tribunal with greater precision—the one thing that is certain is that, from the first moment, the States, by way of the Preparatory Commission, or the MSP and even by way of the United Nations General Assembly (UNGA) have not missed the opportunity to recognize the legal status of the Tribunal, either explicitly or implicitly. The juridical personality of the Hamburg Tribunal has been expressly recognized by 41 States Parties in the Agreement on the Privileges and Immunities of 1997, whose article 2 establishes, as we have seen previously, that “The Tribunal shall possess juridical personality”. Further, the host country expressly recognizes the juridical personality of ITLOS in two instruments: 1/ the Agreement 11  Art. 176 UNCLOS: “The Authority shall have international legal personality”. 12  The hypothesis of involuntary omission could have occurred in the following way: At the time when the authors of UNCLOS could have addressed the question, they were pressed for time, and more preoccupied with jurisdictional issues along with simply maintaining the fragile consensus they had reached, rather than becoming mired in details concerning an institution which, without their agreement, would simply not exist at all. Besides this, the mention of the legal status of the Tribunal was not the only item regarding its institutional dimension that was left out of the Statute. They also left out the reference to its privileges and immunities as an institution, providing those only for the judges. One further consideration is that part XI of the Convention in which article 176 (recognizing the legal status of the ISBA) is placed, was drafted by the First Commission of UNCLOS III, while the institutional aspects of ITLOS contained in the Statute were elaborated at the informal plenary session.

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between the International Tribunal for the Law of the Sea and the Federal Republic of Germany Regarding the Headquarters of the Tribunal (hereinafter the Headquarters Agreement) of 14 December 2004, whose Preamble establishes that the Agreement is concluded ‘having regard to the legal personality of the Tribunal’13 and 2/ the Agreement on the Occupancy and Use of the Premises of the International Tribunal for the Law of the Sea, of 18 October 2000, which complements the Headquarters Agreement, and precedes it, and whose Preamble also states that the FRG adopts the agreement ‘Having regard to the legal personality of the Tribunal’. In addition to explicit recognition, it is my opinion that the legal personality of the Tribunal has been implicitly recognized by other States and international organizations in other documents apart from those previously mentioned. Firstly, I am referring to the Agreement on Cooperation and Relationship of 1998, in which it is set out that “The United Nations recognizes the International Tribunal for the Law of the Sea as an autonomous international judicial body . . .” and that both institutions “undertake to respect the status and mandate of the other. . .”.14 In addition, the same might happen with those international, intergovernmental organizations like the ISBA and the Food and Agriculture Organization (FAO), the International Oceanographic Commission (IOC) of UNESCO and the International Maritime Organization (IMO),15 which have negotiated relationship agreements with the Tribunal. Secondly, I am also referring to the seven States that are signatories of the Agreement on the Privileges and Immunities of 1997 who have not yet ratified the treaty,16 as much for the declarative value that could be recognized in the text they had adopted, as for their obligation as signatories, ‘to refrain from acts which would defeat the object and purpose’ of the Agreement.17 And thirdly, I am also referring: 1/ to the States participating in the Fifth MSP, in which the Agreement on Privileges and Immunities was adopted by consensus; 2/ to the States participating in the United Nations General Assembly

13  Prior to those instruments, the Ordinance of the German Government of 10 October 1996 established the application mutatis mutandis to ITLOS of the Convention on the Privileges and Immunities of the UN Specialized Agencies of 21 November 1947, whose article II (Section 3) says that “the specialized agencies shall possess juridical personality.” 14  Art. 1, paras. 1 and 3. 15  Doc. SPLOS 74, para. 72. As regards the FAO, an administrative agreement on cooperation was concluded between the Registry of ITLOS and the FAO in 2007 (Doc. SPLOS 174, para. 77) but this is different in nature than those agreements to which I am referring here. 16  Ghana, Jordan, Oman, Senegal, Sri Lanka, Tunisia and Tanzania, at February 2014. 17  Arts. 18.1 of the Vienna Conventions on the Law of Treaties of 1969 and 1986.

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in which the Agreement on the Cooperation and Relationship between ITLOS and the United Nations was approved;18 and 3/ to the States participating in the Preparatory Commission on the International Seabed Authority and the International Tribunal for the Law of the Sea, inasmuch as the Preparatory Commission proposed the celebration of: a/ a headquarters agreement whose text expressly recognizes the juridical personality of the Tribunal; b/ a relationship agreement with the United Nations in the aforementioned terms; and c/ a protocol on the privileges and immunities of the Tribunal, which also recognizes its legal personality.19 In this sense, it should be kept in mind that although we are drawing a distinction between members of the Preparatory Commission, the MSP and the UNGA as a matter of form, in fact we are, for the most part, referring to the same States. Those States have consequently, repeatedly adopted or 18  UNGA, Res. 52/251, 18 of December 1997. 19  It would seem convenient here to refer briefly to the treatment of the question concerning the juridical personality of the Tribunal in the Preparatory Commission. In the draft of the Headquarters Agreement between ITLOS and the Federal Republic of Germany prepared by the Secretariat (Doc. LOS/PCN/SCN.4/WP.5 (Part I), of August 4, 1987 (in PLATZÖDER, R., The Law of the Sea Documents: 1983–1991 Preparatory Commission for the International Seabed Authority and for the International Tribunal for the Law of the Sea, Oceana Pubs, Dobs Ferry, New York, 1994, vol. VII, pp. 337 ss.)) in which the legal personality of the Tribunal is recognized (art. 2), the Chairman of the Special Commission 4, summarizing the discussions of the Working Paper (doc.LOS/PCN/SCN.4/L.11 of March 3, 1988 (in PLATZÖDER, cit., vol. VII, pp. 152 ss.)) notes that: “In the discussion on this article [2] it was recalled that the Law of the Sea Convention did not make a provision for the legal personality of the Tribunal. In that connection attention was drawn to the discussion held as early as the third session of the Preparatory Commission on the need (. . .) of a legal instrument concerning the privileges and immunities of the Tribunal (. . .) (LOS/PCN/SCN.4/1985/CRP.8 and LOS/PCN/SCN.4/L.3, p. 2). Such a legal instrument (. . .) should also recognize the legal personality of the Tribunal (. . .)” (para. 17, italics mine). He later added that “It was pointed out in the discussion that the Tribunal must have legal personality both in terms of international law, which was to be included in the legal instrument concerning privileges and immunities, and in terms of domestic law of the host country, which was to be covered by the Headquarters Agreement” (para. 19). As we will see, when addressing the legal nature of the Tribunal, a subsequent paper on the relationship between ITLOS and other international entities (doc. LOS/PCN/SCN.4/ WP.7 of March 20, 1989), goes even further, not only recognizing the juridical personality of the Tribunal but also its status as an intergovernmental international organization, an idea that is repeated in the draft dealing with the relationship agreement between the Tribunal and the UN (doc. LOS/PCN/SCN.4/WP.9 of March 16, 1990). This specific classification as an international organization is rejected by some States and avoided by the Preparatory Commission (doc. LOS/PCN/SCN.4/L.15 of February 20, 1991). However, at no time does it call into question the legal status of the Tribunal.

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approved texts that explicitly or implicitly recognize the legal personality of the Court. In addition to this, in looking at the capacity of the Tribunal, one should make a distinction between its capacities in the area of International Law and the area of Domestic Law. Beginning with the latter, with regard to the host State, the Headquarters Agreement Establishes that “in accordance with its juridical personality the Tribunal has, in particular, the capacity: a / to contract b / to acquire and dispose of movable and immovable property; c / to institute legal proceedings” (art. 2). In this sense specific applications of the aforementioned capabilities can be found in the Agreement on the Use and Occupancy of the Premises of the Tribunal. Further, the Agreement on the Privileges and Immunities of the Court, drawing on the precedent of the specialized agencies of the United Nations, provides that the ITLOS “shall have the capacity: a) to contract, b) to acquire and dispose of immovable and movable property; c) to institute legal proceedings”,20 finding practical applications of these capabilities in several articles of the same treaty.21 As for the capacity to act in International Law, the Tribunal might be recognized, in general terms, in view of its international juridical personality, as having the necessary capacity to fulfill its functions. In addition, it could also be understood that the capacity to contract, acquire goods and institute legal proceedings, as stated in Articles 2 of the Headquarters Agreement and the Agreement on the Privileges and Immunities of ITLOS, cited above, also refer to the powers of the Tribunal in International Law, consequently enabling it to conclude international agreements, hold its own property distinct from that belonging to the States Parties in UNCLOS, and having access to international means for claiming international responsibility.22 In this sense, in relation to the law of treaties, the Agreement on the Privileges and Immunities of the Tribunal provides that in the event that ITLOS considers it desirable to sit or otherwise exercise its functions elsewhere than at its headquarters, it may conclude with the State concerned an

20  Art. 2. 21  Vid., for example, arts. 5.4 and 14.3. Further, as to the intervention of ITLOS in the internal judicial proceedings of the State with which it is dealing, see J. AKL, “The Legal Status, Privileges and Immunities of the International Tribunal for the Law of the Sea”, Max Planck Yearbook of United Nations Law, vol. 2 (1998): 346. 22  The capacity to conclude treaties and access to international proceedings for settling a dispute is also seen this way by Judge Akl (cit., pp. 345–347).

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arrangement concerning the provision of the appropriate facilities for the exercise of its functions.23 Additionally, if a provision of the 1997 Agreement and a provision of any special agreement between the Tribunal and a State party relate to the same subject-matter, the provision in the special arrangement shall prevail in case of conflict.24 What might also be considered as manifestations of the Tribunal’s capabilities in International Law, in this case in the field of international diplomatic law, is its right to enjoy the privileges and immunities as an institution, and its right as well as visibly demonstrating the nature of its status through the use of safe-conducts, its own flag and emblems.25 And finally, as to its ability to apply for settlement procedures involving international disputes, the Agreement on the Privileges and Immunities of the Tribunal provide that: If a dispute arises between the Tribunal and a State Party which is not settled by consultation, negotiation or other agreed mode of settlement within three months following a request by one of the parties to the dispute, it shall at the request of either party be referred for final decision to a panel of three arbitrators: one to be chosen by the Tribunal, one to be chosen by the State Party and the third, who shall be Chairman of the panel, to be chosen by the first two arbitrators . . .26 This article, for its part, is very similar to that provided in the Headquarters Agreement,27 which is referred to in the Agreement on the Occupancy and Use of the Premises of the Tribunal28 for disputes between it and the host country concerning the interpretation or application of the said agreement or any question affecting the Tribunal’s headquarters or the relationship between the Tribunal and the German Government that cannot be settled by negotiation or any other agreed mode of settlement. In any case, whether the recognition is explicit or implicit, the Tribunal’s capacity to act in International Law also has, in practice, some concrete manifestations of unquestionable value. In regard to the Law of Treaties, the Tribunal 23  Art. 7. 24  Art. 25. 25  See arts. 4 and 21 of the Agreement on the Privileges and Immunities of the Tribunal. 26  Art. 26.2. 27  Art. 33.2. 28  Art. 10.

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has concluded agreements with both the United Nations and the host country that, from my point of view, given their characteristics, cannot be qualified in any manner other than as genuine international treaties; as they would be, if any future relationship agreement negotiated ‘as equals’ with the ISBA or with any other international organizations that have been alluded to before, were to be concluded and enter into force.29 That nature does not change for the fact that the MSP supervises or even authorizes the negotiation of such treaties.30 On the other hand, it is clear that the Tribunal both receives and deals with representatives of States and other subjects of International Law, and is represented by its President or Registrar, as the situation merits. Keeping in mind the international juridical personality of the Tribunal and its capacity to act within the bounds of both International Law and Domestic Law, in my opinion it is clear that ITLOS is a subject of International Law. What is more, from my way of seeing it, the institutional, international, interstate and autonomous dimension of the Tribunal, coupled with the fact of its not being an organ of any existing international organization, make it reasonable to think that the subjectivity of the Tribunal, and the personality and capacity derived from it, or the personality and capacity of the Tribunal, and its subsequent condition as a subject of International Law, are probably implicit in its very existence and the content of its functions without need for specific recognition, be it express or implied.31

29  However, as we have stated, the legal nature of the administrative agreements concluded to date between the Secretary of ITLOS and those of the ISBA, the FAO and other international organizations would be doubtful. 30  See SPLOS 14, para. 33 ss. The MSP “authorizes” ITLOS to initiate negotiations on agreements of cooperation with the FRG, the ISBA and the UN. 31  This idea seems to respond to the approach some States in the Preparatory Commission were taking regarding the express recognition of the legal personality of the Tribunal by its host State in the future Headquarters Agreement. As the President of the Special Commission 4 observed: “Other delegations felt however that it was superfluous to have a provision to the effect that the Government of the host country recognized the legal personality of the Tribunal since such personality derived directly from the existence of the Tribunal. They argued that article 1 of the Statute of the Tribunal implied that the Tribunal had the necessary competence to conclude such treaties and contracts as were required for the effective conduct of its business and the discharge of its functions” (doc. LOS/PCN/SCN.4/L.11, 3 March 1988, para. 18, in Platzöder, op. cit., vol. VII, pp. 152 ss.).

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Legal Nature

If one admits the subjectivity of the Tribunal, its legal personality and its capacity to act, then what is its legal nature? Are we dealing with a straightforward international organization, or a new type of international subject that we might, for example, call ‘an autonomous international judicial institution’ or more simply, ‘international tribunal’? In essence, what was it the States wanted when they created the International Tribunal for the Law of the Sea? For all the reasons that have just been pointed out, my opinion is that the States really wanted to create an international legal person whose subjectivity is limited and functional; and that, if I may be permitted to state it simply, only leaves two outcomes: either the Tribunal is an international organization, or the Tribunal is not an international organization, in which case what we are dealing with is a new type of subject of International Law that is distinct from States and from international organizations. Is ITLOS an international organization? In my view, the biggest problem that emerges in trying to answer this question with any degree of certainty is that one is left in the position of having to respond to another question first: What is an international organization? As Professor Pastor Ridruejo recognizes: s’il est facile d’établir la théorie générale de l’Etat en droit international, tout essai de construction d’une théorie générale des organisations internationales doit tenir compte de l’abondance et de la profondeur des différences existant entre elles. Cette construction doit être marquée pour la prudence. Autrement dit, la portée d’une telle théorie générale ne peut être que très modeste.32 However, despite this difficulty, it constitutes a solid base on which to support a definition offered by Professor Carrillo Salcedo: International intergovernmental organizations are entities created by means of international treaties celebrated by States, afforded with their own organs and their own will, separated and distinct from that of its

32  J.A. Pastor Ridruejo, “Coursgénéral de droit international public”, RCADI, vol. 274 (1998): 195.

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States Members, with the goal of managing the permanent cooperation between States in a particular ambit.33 In view of the foreseen, it is my opinion that ITLOS qualifies for classification as an international organization. It is true that States, in the Preparatory Commission, in the MSP and in UNGA, have been systematically circumventing the term ‘international organization’ when referring to the Tribunal, replacing it with more neutral ‘independent international judicial institution’34 or ‘autonomous international judicial body’.35 But in my opinion, this is not conclusive and may respond more to the fact that a question exists rather than standing as a true conviction.36 33  J.A. Carrillo Salcedo, Curso de Derecho Internacional Público (Madrid: Tecnos, 1999), 61 (See also p. 31). 34  LOS/PCN/SCN.4/L.15, paragraph 8 ss., 20 February 1991 (Platzöder, op. cit., vol. XIII, 164). 35  Agreement on the Cooperation and Relationship, article 1 and Preamble. 36  In the case of the Preparatory Committee, ITLOS was classified as an international organ­ ization on various occasions. However, the use of this expression does not pass into the proposals contained in the Final Report (Doc. LOS/PCN.152). In particular: In the working paper on matters relating to the relationship between the International Tribunal for the Law of the Sea “and other international organizations” (emphasis added), prepared by the Secretariat (doc. LOS/PCN/SCN.4/WP.7 of March 20, 1989, in PLATZÖDER, cit., vol. VII, pp. 397 ss.) it states that: “Given that the Tribunal is an independent inter-governmental organization with a mandate to carry out its functions effectively, the inherent power to enter a relationship arrangement with other inter-governmental organizations is obvious “(para. 3; emphasis added). And goes on to say that: “The unique nature of the Court as an independent international organization must be recognized (. . .)” (para. 5; emphasis added). What does not feature in the summaries made by the President of the Special Commission 4, were the reactions the States had to those words. The legal classification of ITLOS as an international organization was reused again in the draft on the Relations and Cooperation Agreement between the Tribunal and the United Nations, also prepared by the Secretariat (Doc. LOS/PCN/SCN.4/WP.9 of March 16, 1990, in PLATZÖDER, cit., Vol. XI, pp. 431 ss.). Specifically, article 1.1 of the proposed agreement says: “The United Nations recognizes that the (. . .) Tribunal (. . .), by virtue of its intergovernmental character and international responsibilities, will function under the Convention and its Statute as an autonomous international organization in the relationship with the United Nations established by this Agreement” (emphasis added). This time, the reaction by the States participating in the Preparatory Commission to that expression figures into the summary. As summarized by the President of the Special Commission (doc. LOS/PCN/SCN.4/L.15 of February 20, 1991, in PLATZÖDER, cit., Vol. XIII, pp. 163 ss.) “Some delegations considered that the reference to the intergovernmental character of the Tribunal was not appropriate. They agreed that the term was not associated with judicial bodies. It was proposed to use the term ‘international judicial body’ ”; and later adding: “Another delegation how-

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Furthermore, there have been a number of occasions on which the Tribunal has been alluded to by using precisely that expression in some of these forums, without any objections having been raised.37 And it is also true that the Tribunal has its own particular quality that distinguishes it from other organizations that might be labeled as ‘traditional’, that is to say, those of the type ‘foundational’ or ‘associative’, which are not provided with a strong mechanism to protect the independence they lack, from their own Member States. This mechanism translates into things like limiting the powers of the MSP (relegated to an ancillary role in respect to the activity of the Tribunal and absolutely barred from any interference whatsoever in the Tribunal’s main concern—judicial work), something inconceivable for most plenary assemblies or principal organs of traditional international organizations. But this could also be understood as an example of the qualities that individualize a species within a genus—and not necessarily as the emergence of a brand new class. In this regard, reiterating the difficulties that have been noted and recognizing the impossibility of compressing such heterogeneous realities into a single definition, it seems much safer, more in keeping with highly recommended legal certainty, to qualify ITLOS as an international intergovernmental organization corresponding to the type ‘international tribunals’. In so doing, we will be resisting the temptation, undoubtedly appealing, of opting for a new class of subject under International Law that is different from that of international organizations, and which, though sharing many of those same characteristics, might nevertheless be empowered with its own regime. It is true that even if the Tribunal were considered to be a tertium genus different from that of international organizations, its legal solutions would not be very different from any of those envisioned for it: lacking for juridical solutions within its own regulatory system, the juridical regime closest to that of ITLOS, from which solutions could take their inspiration is precisely the regime of international organizations. But that would happen at a cost of introducing a sizable dose of juridical insecurity. In this respect, qualifying the Tribunal ever suggested the following draft: ‘The International Tribunal is an independent judicial institution (. . .)’. As can be seen, from this as much as from other documents mentioned above, the Preparatory Commission does not deny the international legal personality of the Tribunal, only its legal status as an international organization as seeming to be ‘inappropriate’ to a judicial body. If that is so, then basically, in my opinion, the Preparatory Commission was opting for a new type of subject of international law called an “autonomous international judicial institution” or more simply, “international tribunal.” 37  For example, one should recall that ITLOS was admitted to membership in the United Nations Joint Staff Pension Fund as a member organization (UNGA Res. 51/217, section VI).

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as an international organization undoubtedly has practical consequences. Considered as such, the legal regime of the Tribunal could integrate its lacunas by using what could be denominated as ‘the law of international organizations’, as codified, for example, in dealing with treaties, in the Vienna Convention of 1986 (to which, in my opinion, ITLOS could be a Party) and to be codified, for example, in the field of international responsibility, in keeping with the work carried out by the International Law Commission.38 And to do so, not only in what is referred to the positive law but also in the realm of principles. For example, would the doctrine of the implied powers be applicable to the Tribunal? In my opinion, having recognized its status as an international organization, not with standing the supervision functions assumed by the MSP, the answer is affirmative. It is possible that, on occasions, the law of international organizations currently in force, while thought for those of the type ‘foundational’ or ‘associative’, would be insufficient to provide answers for a type of organization that we could label ‘international tribunal’, such as the one analyzed in this paper. But in any case that would be the reason to modify or adapt the rule to the new realities, not to change the legal status of the subjects themselves. Given that ITLOS is an international organization and despite its organic disentanglement from the UN, it is evident, as President P. Chandrasekhara Rao affirms in his address before the General Assembly of the United Nations, 27 November 2001, that “the Tribunal belongs to the family of the United Nations”.39 In this respect, in my opinion, its close ties with the worldwide organization, nudge it considerably closer to the position of the UN specialized agencies.40 38  See Draft Articles on the responsibility of international organizations, with commentaries, as adopted by the International Law Commission at its 63rd Session, in 2011, and submitted to the United Nations General Assembly (A/66/10) (Also in Yearbook of the International Law Commission, vol. II, Part II, (2011). 39  Address to the 56th Session of the UNGA. 40  It should be recalled, in this respect, that the German Ordinance of 10 October 1996 applied mutatis mutandis the Convention on the Privileges and Immunities of the UN Specialized Agencies of 1947 (art. 1), that ITLOS has been admitted to the UN Joint Staff Pension Fund, that ITLOS and the United Nations have also celebrated an Agreement Extending the Competence of the UN appeals Tribunal to the International Tribunal for the Law of the Sea to Applications Alleging Non-Compliance with the Terms of Appointment or Contracts of Employment of Staff Members of the Registry of ITLOS, of 23 June and 13 July 2010, and that ITLOS members and staff use the United Nations laissez-passer (Agreement on the Privileges and Immunities, article 21; Headquarters Agreement, article 25; Agreement on Cooperation and Relationship UN-ITLOS, article 9).

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Conclusions Looking at the institutional, international, interstate and autonomous dimension of ITLOS, which is not an organ of any pre-existing international intergovernmental organization, the legal regime of the International Tribunal for the Law of the Sea defines it as possessing international juridical personality and the capacity necessary to fulfill its purposes in international law, which undeniably makes it a juridical subject under international law. A different thing would be to classify such personality and subjectivity according to the usual classifications of international legal persons. In this sense, pointing out its autonomous character, as ITLOS is not the organ of any pre-existing international organization, is it a new type of subject of international law, a new class distinct from States and distinct from international organizations? In my opinion, although it would certainly be very appealing to opt for the emergence of a tertius genus when considering international subjectivity, I understand that it is not necessary to take it to that extreme. The International Tribunal for the Law of the Sea meets the conditions for being considered on its own terms, by itself, as an international organization. In this case, it is probably the first international organization of the type ‘international tribunal’ in history.

Chapter 36

Les avis consultatifs du Tribunal International du Droit de la Mer Tafsir Malick Ndiaye C’est avec un plaisir tout particulier que nous rendons hommage à notre Cher Collègue Hugo Caminos que j’ai appris à connaître après quinze années passées au Tribunal international du droit de la mer : Travailleur infatigable à la courtoisie exquise. La fonction consultative apparaît aujourd’hui comme une pièce de musée à restaurer exigeant du juriste qu’il joue le rôle de l’archéologue à une période où l’on note une désertion du prétoire international. L’on peut y voir une procédure de repli, de règlement pacifique des différends, moins contraignante que la procédure contentieuse devant les juridictions internationales. Pourtant, le recours au règlement judiciaire international – CPJI/CIJ – et à l’arbitrage a été considéré, il y a plus d’un siècle, comme une étape décisive du droit international. Cependant, si l’on observe l’attitude des Etats face au règlement judiciaire international des différends, on s’aperçoit que les aspérités sont tenaces1. C’est à croire que la répugnance des Etats à l’égard du règlement juridictionnel est inhérente à la structure même de la société internationale travaillée par des processus politiques et où les intérêts individualistes des Etats sont omniprésents. Ceci explique le sous-emploi des juridictions internationales. L’on a souvent débattu des causes de cette posture des Etats en accusant la composition des juridictions permanentes, la lourdeur et le coût de la procédure ainsi que sa lenteur, les incertitudes ou les divisions relatives au contenu du droit applicable etc. De nos jours, on parle beaucoup de la fragmentation du droit international et des soi-disant risques qu’entrainerait la prolifération observée des juridictions2. On peut dès lors comprendre les nombreuses réserves que les Etats assortissent, par exemple, à leur déclaration d’acceptation de la juri1  v. M. Virally, « Le champ opératoire du règlement judiciaire international », RGDIP, Tome LXXXVII, (1993) : 281-314. 2  v. “The Future of International Judicial Institutions”, The International and Comparative Law Quaterly, vol. 44 (1995).

© koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004283787_037

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diction obligatoire lesquelles finissent par les purger de leur sens. L’on note ainsi la place qu’occupe le consentement des Etats parties au différend. En effet, les Etats considèrent comme un attribut fondamental de leur souveraineté le droit de refuser d’être attrait devant un tiers. Lorsqu’un demandeur fait valoir un mécanisme de juridiction obligatoire, il est rare que le défendeur ne tente de s’y soustraire et c’est pourquoi les procès relatifs aux conditions d’exercice de la juridiction sont prolifiques dans l’ordre international3. Et la Cour internationale rappelle souvent ce qu’elle nomme « l’un des principes fondamentaux de son statut » d’après lequel « elle ne peut trancher un différend entre les Etats sans que ceux-ci aient consenti à sa juridiction »4. La règle d’or de la politique juridique des Chancelleries a toujours été que le juge international ne doit être saisi que de différends ‘exclusivement juridiques’ c’est-à-dire insusceptibles de générer une crise interne et qui ne causent pas de soucis majeurs aux décisions politiques. La juridiction internationale peut même permettre de surmonter l’impasse de négociations difficiles ou faire admettre à l’opinion publique une décision impopulaire. Autrement dit, les différends portés devant le juge international apparaissent le plus souvent comme mineurs. Un autre problème important est celui dit du risque judiciaire inhérent au règlement des différends par les procédures juridictionnelles. Ce risque est égal5 pour toutes les parties et les Etats ne le supportent pas car s’il est un fait que les décisions des juridictions internationales sont revêtues de l’autorité de la chose jugée6, elles peuvent différer dans la détermination du droit applicable 3  Comme l’écrit le Juge M. Bedjaoui, « dans le cas d’une introduction d’instance par voie de requête, le défendeur commence presque toujours par contester la compétence de la Cour, exception souvent assortie d’une mise en cause de la recevabilité de la requête » in Le droit international au service de la paix, de la justice et du développement, ed. Mélanges Michel Virally (Paris : Pédone, 1991), 87-107, spéc. 89. Voir en outre, T. M. Ndiaye, « La recevabilité devant les juridictions internationales » in Law of the Sea, Environmental Law and Settlement of disputes, ed. Ndiaye & Wolfrum (Leiden/Boston : Martinus Nijhoff Publishers, 2007), 249-295. 4  Aff. Du Timor Oriental, CIJ, Rec 1995, p. 101, para. 26 ; voir aussi Aff. Qatar/Bahreïn, CIJ, Rec. 1995, p. 23, para. 43. 5  Comme le remarque le Pr. Reuter, « c’est la libre acceptation de ce risque judiciaire qui est la source la plus profonde de l’autorité des sentences . . .[et] . . . quoi que l’on fasse, quelle que soit la qualité du recrutement des arbitres ou des juges, quelle que soit la multiplication des degrés de juridiction et de recours, le risque subsiste ». Pr. Reuter, La motivation et la révision des sentences arbitrales à la Conférence de la Pais de 1899 et le conflit frontalier entre le Royaume Uni et le Venezuela (La Haye : M. Nijhoff, 1968), 245. 6  v. Sentence arbitrale du 11 mars 1941 rendue en l’Affaire du Trail Smelter, N.U. Recueil Des Sentences Arbitrales, Vol. III, 1950 où on peut lire “That the sancticy of res judicata attached

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ou l’appréciation des faits. Il est vrai que, pour certains types de différends – en matière de délimitation maritime, par exemple – la prévisibilité du résultat de l’instance est pratiquement impossible7. Cette prévisibilité constitue pourtant l’une des vertus majeures du processus judiciaire8. Deux décennies après ce qu’on a appelé la ‘fin de la guerre froide’9, on aurait pu penser à l’avènement d’une véritable justice internationale. Le monde est aujourd’hui privé des clivages qui lui servaient de points de repères – Est/ Ouest, Nord/Sud. La Convention des Nations Unies sur le droit de la mer apparaît elle-même, par certains de ses aspects, comme un produit de la guerre froide en abritant les intérêts des différentes catégories d’Etats10. La faiblesse de l’activité du Tribunal international du droit de la mer doit être examinée à la lumière des différents facteurs relevés plus haut et à celle du nombre ainsi qu’à la diversité des engagements de recourir au Tribunal par les Etats11. Le nombre est assez insatisfaisant même s’il n’est pas négligeable. Il est vrai que d’autres instruments multilatéraux prévoient le recours au Tribunal et couvrent les domaines les plus divers12. A la date du 16 décembre 2009, la Convention des Nations Unies sur le droit de la mer compte 160 Etats Parties. Une trentaine d’Etats ont fait la déclaration relative au choix de la procédure en faveur du  

to a final decision of an international tribunal is an essential and settled rule of international law”. 7  Il suffit de penser à deux notions voisines : la ‘zone pertinente’ et les ‘côtes pertinentes’ pour la délimitation et les problèmes liés à sa détermination et à son utilité. Pour la détermination, le juge se réfère à la volonté des Parties telle qu’exprimée dans le compromis ou telle qu’elle ressort de leurs plaidoiries [Aff. Golfe du Maine, Paragraphe 5 ; Aff. Francocanadienne, 1992, paragraphe 35]. Quant à l’utilité, elle se pose en raison de l’existence de la notion de ‘côtes pertinentes’. Celles-ci se définissent comme étant les seules côtes par le biais desquelles un chevauchement de titres existe. Seulement, dans la réalité, les choses sont autrement plus complexes. [Voir l’Aff. Libye/Malte, paragraphe 74] où la Cour dit : « Le contexte géographique rend la marge de détermination des côtes pertinentes et des zones pertinentes si large que pratiquement n’importe quelle variante pourrait être retenue ». Voir aussi, E. Zoller, « Commentaire de l’Affaire de la délimitation des espaces maritimes de Saint-Pierre-et-Miquelon », AFDI (1992) : 484 qui parle de « l’anarchie qui prévaut depuis 1982 dans le droit des délimitations maritimes ». 8  Voir Dereck Bowett, sur la “Predictability in the legal process”, RCADI, 1983–II, tome 180, 191-203. 9  Symbolisée par la Chute du mur de Berlin le 9 Novembre 1989. 10  Voir l’art. 287 ; partie XI et l’Accord relatif à l’application de la partie XI, adopté le 28 juillet 1994. 11  Voir le site DOALOS (Nations Unies) : www.un.org. 12  Id. Traités multilatéraux : Guide des traités multilatéraux et autres instruments internationaux relatifs à la Convention des Nations Unies sur le droit de La mer.

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Tribunal. Ce qui signifie que 130 Etats ont choisi l’arbitrage par leur silence, par le jeu de la procédure obligatoire par défaut13. L’on comprend, dès lors, l’engouement observé au sein des organes politiques traitant du droit de la mer pour la fonction consultative14 du Tribunal. Sur l’origine du concept, il faut rappeler qu’aux termes de l’article 14 du Pacte de la Société des Nations, la Cour permanente de justice internationale n’était pas seulement appelée à rendre des arrêts. Elles s’était vu reconnaître la possibilité de donner des avis consultatifs sur tout différend ou tout point dont elle était saisie par le Conseil ou par l’Assemblée. Les premières rédactions du Pacte, en particulier, le fameux projet du 14 février 1919, ne contenaient aucune disposition à ce sujet. C’est la délégation française, désireuse de prévoir un moyen de trancher les difficultés susceptibles de s’élever en ce qui concernait l’interprétation du Pacte, qui avait proposé de confier à la future Cour permanente la mission de connaître de toute question soumise par le Conseil ou l’Assemblée relativement à « toute question soulevée par l’interprétation du Pacte ». Appuyée par Lord Cecil, cette proposition se heurta aux objections de la délégation italienne ; laquelle préférait laisser l’interprétation du Pacte aux organes chargés de l’appliquer, c’est-à-dire essentiellement au Conseil et à l’Assemblée15. En définitive, la disposition fut insérée dans le Pacte avec l’appui de la délégation américaine. Cependant, aucune disposition spéciale du statut ne lui fut consacrée16 ; l’Assemblée ayant rejeté la suggestion du Comité de juristes tendant à différencier la composition de la Cour suivant que celle-ci était appelée à donner son avis sur un point de droit international ou sur un différend né et actuel. L’Assemblée était d’avis qu’il était impossible d’asseoir une démarcation précise entre les différends et les points de droit dans la mesure où la question théorique d’aujourd’hui peut devenir le différend de demain. Dans le système de la SDN, la demande d’avis consultatif ne peut émaner que du Conseil ou de l’Assemblée. L’institution de la procédure consultative a été maintenue par les rédacteurs de la Charte des Nations Unies lesquels ont étendu le nombre des organes admis à demander des avis à la Cour internationale et ont ramené la procédure à une consultation dépourvue d’effet obligatoire. Il faut distinguer les organes directement habilités 13  En effet, l’art. 287 de la convention dispose en son § 3 : « Un Etat Partie qui est partie à un différend non couvert par une déclaration en vigueur est réputé avoir accepté la procédure d’arbitrage prévus à l’annexe VII ». 14  Voir infra, le Tribunal plénier. 15  V. Ch. Rousseau, Droit international public, Tome V (Paris : Sirey, 1983), 421. 16  Voir Statut de la CPJI du 16 décembre 1920, SERIE D, no 1.

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par la Charte des Nations Unies et les institutions spécialisées habilitées par l’Assemblée géné­rale. En effet, selon l’article 96 de la Charte, non seule­ment l’Assemblée générale et le Conseil de sécurité des Nations Unies peuvent demander un avis à la cour internationale de justice, mais encore tous les autres organes de l’ONU et toute institution spécialisée qui y aurait été autorisée par l’Assemblée générale17. L’Assemblée générale et le Conseil de sécurité peuvent interroger la Cour sur « tout question juridique », tandis que les autres organes habilités ne peuvent la saisir que de « questions juridiques qui se poseraient dans le cadre de leurs activités ». La Cour internationale de justice est ainsi investie d’une fonction consultative comme sa devancière. Les Etats ayant seuls qualité pour se présenter devant la CIJ, les organisations internationales publiques ne peuvent être en tant que telles parties à aucune affaire contentieuse devant le Cour. En revanche, la procédure consultative est ouverte à ces organisations et à elles seules devant le Cour. Il en va différemment du Tribunal international du droit de la mer en raison de l’attelage institutionnel qui résulte de la Convention de Montégo Bay. La Convention des Nations Unies sur le droit de la mer institue différents organes : l’Autorité internationale des fonds marins, la Commission sur les limites du plateau continental et le Tribunal international du droit de la mer. Le Tribunal est institué comme une organisation internationale autonome au sein du système des Nations Unies. Il y a là une différence fondamentale par rapport à la CIJ, qui réside dans la place qu’occupe le Tribunal parmi les organes traitant du droit de la mer, comparée à celle qui revient à la CIJ dans le système des Nations Unies. En effet, la CIJ est un organe principal de l’ONU aux termes de l’article 7 de la Charte des nations Unies et l’article 92 dispose qu’elle « constitue l’organe judiciaire principal des Nations Unies . . . ». Le Tribunal, quant à lui, bien qu’institué par la Convention de Montégo Bay18, n’est intégré à aucun des organes établis par celle-ci. Il bénéficie d’un statut d’organe indépendant. Et ce, en dépit du fait que la Chambre pour le règlement des différends relatifs aux fonds marins, instituée par l’article 186 de la Convention, soit elle-même intimement liée à l’Autorité internationale des fonds marins sans être un organe de celle-ci.

17  Organes de l’ONU : Assemblée générale ; Conseil de sécurité ; Conseil économique et social ; Conseil de tutelle ; Commission intérimaire de l’Assemblée générale. Institutions spécialisées : OIT, FAO, UNESCO, OMS, BIRD, SFI, AID, FMI, OACI, UIT, OMM, OMI, OMPI, FIDA, ONUDI, organisation apparentée : AIEA. 18  Art. 287 de la CNUDM.

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Il faut rappeler que la question de la mise sur pied du Tribunal du droit de la mer a été à l’ordre du jour depuis 1969. A dire vrai, l’on a pensé longtemps que parmi les organes de ce qui deviendra plus tard l’Autorité internationale des fonds marins, il y aurait un Tribunal. L’idée ne sera abandonnée qu’en 197719. Le problème qui se posait était celui de savoir s’il fallait créer un organe judiciaire indépendant pour traiter des questions du droit de la mer en général ou se limiter aux différends relatifs à l’exploitation de la zone internationale des fonds marins devenue la partie XI de la Convention des Nations Unies sur le droit de la mer. La Conférence décida de créer un nouvel organe judiciaire, le Tribunal international du droit de la mer, indépendant avec un statut annexé à la Convention. Parce qu’elle est autonome, la nouvelle juridiction avait besoin d’un certain nombre d’arrangements administratifs pour voir le jour. Le Tribunal a son propre budget et ses organes : l’organe judiciaire composé des membres du Tribunal, le Greffe et la réunion des Etats Parties laquelle est convoquée en vertu de l’article 319 de la Convention. La fonction consultative du Tribunal est exercée par la Chambre pour le règlement des différends relatifs aux fonds marins en vertu de la Convention (I). La Chambre a rendu, le 1er février 2011, son premier avis consultatif sur « les Responsabilités et obligations des Etats qui patronnent des personnes et entités dans le cadre d’activités menées dans la Zone » (II). Mais le Tribunal en formation plénière peut donner des avis fondés sur d’autres accords internationaux (III).

La Chambre des Fonds marins

Normalement, la procédure consultative est ouverte aux organisations internationales et à elles seules. Le mécanisme ne comporte ni réclamation, ni parties. C’est pourquoi la voie de la requête est le seul mode de saisine de la Chambre par les organes habilités à demander des avis, (A) dans des matières spécifiées (B). Organes directement habilités par la Convention L’Assemblée La Convention prévoit20 que lorsque le Président est saisi par un quart au moins des embres de l’Autorité d’une requête écrite tendant à ce que l’Assemblée demande un avis consultatif sur la conformité avec la convention d’une 19  Voir TNCO, art. 161, doc. A/CONF.62/WP.10, VIII, Official Records, 1, 1977. 20  Art. 159, paragraphe 10 de la Convention.

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proposition qui lui est soumise au sujet d’une question quelconque, l’Assemblée demande un avis consultatif à la Chambre pour le règlement des différends relatifs aux fonds marins du Tribunal international du droit de la mer. Le vote est reporté jusqu’à ce que la Chambre ait rendu son avis. La Chambre des fonds marins donne également des avis consultatifs, à la demande de l’Assemblée sur les questions juridiques qui se posent dans le cadre de ses activités21. Le Conseil L’autre organe habilité à demander un avis consultatif à la Chambre des fonds marins est le Conseil de l’Autorité internationale des fonds marins. Il peut le faire sur les questions juridiques qui se posent dans le cadre de ses activités22. Les Matières éligibles pour les avis Pour déterminer si elle est compétente pour donner un avis sur la demande dont elle est saisie, la Chambre des fonds marins doit s’assurer que ladite demande entre bien dans le cadre de l’activité – sa compétence – de l’organe qualifié dont elle émane. Compétences de l’Assemblée générale de l’Autorité Nature : Seul organe composé de tous les membres de l’Autorité, l’Assemblée est l’organe suprême de celle-ci devant lequel les autres organes principaux sont responsables. Elle arrête la politique générale de l’Autorité23, qui est l’organisation par l’intermédiaire de laquelle les Etats Parties organisent et contrôlent les activités menées dans la Zone, aux fins de l’administration des ressources de celle-ci24. Etendue : En tant qu’assemblée plénière de l’Autorité, l’Assemblée bénéficie des pouvoirs et fonctions les plus étendus. C’est elle qui connaît des problèmes essentiels touchant à l’organisation et au fonctionnement de l’Autorité internationale des fonds marins. Ces problèmes sont d’ordre politique, juridique ou simplement technique. Au plan politique, l’Assemblée élit les membres du Conseil, le Secrétaire général parmi les candidats proposés par le Conseil et les membres du conseil 21  22  23  24 

Art. 191 de la Convention. Id. Art. 160, paragraphe 1 de la Convention. Art. 157, paragraphe 1 de la Convention.

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d’administration de l’Entreprise ainsi que le Directeur général de celle-ci ; sur recommandation du conseil25. L’Assemblée crée les organes subsidiaires qu’elle juge nécessaires pour exercer ses fonctions. En ce qui concerne la composition de tels organes, il est dûment tenu compte du principe de la répartition géographique équitable des sièges, des intérêts particuliers et de la nécessité d’assurer à ces organes le concours de membres qualifiés et compétents dans les domaines techniques dont ils s’occupent26. Avec la création des organes subsidiaires, la recherche de l’efficacité dans des domaines très techniques semble primer la réalisation de l’égalité des Etats membres malgré les précautions normatives. En général, ce sont des personnalités dont la compétence est notoire dans les domaines techniques retenus qui sont élus au sein des organes subsidiaires créés à cet effet. Sur le plan technique, l’Assemblée fixe les contributions des membres au budget de fonctionnement de l’Autorité. Elle examine et approuve, sur recommandation du conseil, les règles, règlements et procédures relatifs au partage équitable des avantages financiers et autres avantages économiques tirés des activités menées dans la Zone. Elle en fait de même pour les règles et procédures relatives à la prospection, à l’exploration, à l’exploitation de la Zone, la gestion financière de l’Autorité et son administration interne ainsi que, sur recommandation du Conseil d’Administration de l’Entreprise, les virements de fonds de l’Entreprise à l’Autorité27. Au plan juridique, l’Assemblée fait procéder à des études et formuler des recommandations tendant à promouvoir la coopération internationale concernant les activités menées dans la Zone et à encourager le développement progressif du droit international et sa codification28. L’Assemblée prononce en outre la suspension de l’exercice des droits et privilèges inhérents à la qualité de membre. La suspension est toutefois assujettie à la constatation, par la Chambre des fonds marins, d’une violation grave et persistante de la partie XI29. L’Assemblée délibère enfin sur toute question ou tout sujet relavant 25  Art. 160, paragraphe 2 a) b) c). 26  Id. d). 27  Id. e) f). C’est aussi l’Assemblée qui décide du partage équitable des avantages financiers et autres avantages économiques tirés des activités menées dans la Zone, d’une manière compatible avec la Convention et les règles, règlements et procédures de l’Autorité. 28  Id. j). 29  En application de l’art. 185 de la Convention qui se lit : « Suspension de l’exercice des droits et privilèges inhérents à la qualité de membre. 1) Un Etat Partie qui a enfreint gravement et de façon persistante la présente partie peut, sur recommandation du Conseil, être suspendu de l’exercice des droits et privilèges inhérents à la qualité de membre par l’Assemblée.

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de la compétence de l’Autorité et décide, d’une manière compatible avec la répartition des pouvoirs et fonctions entre les organes de l’Autorité, lequel de ces organes traitera d’une question ou d’un sujet dont l’examen n’a pas été expressément attribué à l’un d’eux.30 Compétence du Conseil de l’Autorité Nature : Aux termes de l’article 162 de la Convention, le Conseil est l’organe exécutif de l’Autorité. Il a le pouvoir d’arrêter, en conformité avec la Convention et avec la politique générale définie par l’Assemblée, les politiques spécifiques à suivre par l’Autorité sur toute question ou tout sujet relevant de sa compétence. Etendue : Le Conseil a des pouvoirs et fonctions très étendus lui permettant, en tant qu’organe exécutif de l’Autorité, de mettre en œuvre la politique générale définie par l’Assemblée31. Ces pouvoirs ont été singulièrement renforcés par l’Accord relatif à l’application de la Partie XI de la Convention des Nations Unies sur le droit de la mer adopté le 28 juillet 1994, en faveur des Etats du Nord. Ainsi, les décisions de l’Assemblée sur toute question qui relève également de la compétence du Conseil ou sur toute question administrative, budgétaire ou financière sont fondées sur les recommandations du Conseil. Si l’Assemblée n’accepte pas la recommandation du Conseil sur une question quelconque, elle renvoie celle-ci au Conseil pour un nouvel examen32. De même, chacune des « chambres » détient un pouvoir de véto au sein du Conseil. De la sorte, la section 3 de l’Accord limite les pouvoirs dont dispose l’Assemblée au bénéfice du Conseil33. La compétence de la Chambre des Fonds marins Détermination et exercice : La Convention prévoit que l’Assemblée de l’Autorité peut demander à la Chambre des fonds marins un avis consultatif sur la conformité avec

30  31  32  33 

2) Aucune décision ne peut être prise en vertu du paragraphe 1 tant que la Chambre pour le règlement des différends relatifs aux fonds marins n’a pas constaté que l’Etat Partie en cause a enfreint gravement et de façon persistante la présente partie. » Art. 160, paragraphe 2 n). Voir art. 162, paragraphe 2 a) à z). Accord du 28 juillet 1994, Section 3, paragraphe 4. Sur les quatre groupes d’Etats ‘chambres’ distingués par l’Accord, voir Section 3, paragraphes 5 et 9.

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la Convention d’une proposition qui lui est soumise au sujet d’une question quelconque34. De même, la Chambre pour le règlement des différends relatifs au fond marins donne des avis consultatifs, à la demande de l’Assemblée ou du Conseil, sur les questions juridiques qui se posent dans le cadre de leur activité35. Dans l’exercice de ses attributions consultatives, la Chambre des fonds marins s’inspire, dans la mesure où elle les reconnaît applicables, des dispositions du Statut et du Règlement qui s’appliquent en matière contentieuse36. Le Règlement prévoie que la Chambre recherche si la demande d’avis consultatif a trait à une question juridique pendante entre deux ou plusieurs parties. Si la Chambre en décide ainsi, l’article 17 du Statut s’applique ainsi que les dispositions qui pourvoient à l’application de cet article37. Ces dispositions donnent à penser que l’avis peut être demandé sur un différend puisque le Règlement autorise les parties à désigner des juges ad hoc lorsqu’elles n’ont pas à la Chambre un Membre ayant leur nationalité. La Chambre devra donc rechercher, en tant que de besoin, si la conformité avec la Convention d’une proposition à elle soumise au sujet d’une question quelconque ou les questions juridiques qui se posent dans le cadre des activités du Conseil ou de l’Assemblée de l’Autorité portent sur un différend entre deux ou plusieurs parties38. On note une sorte de glissement qui risque à terme de dénaturer le mécanisme des avis consultatifs dans son principe qui est une consultation de la juridiction dépourvue d’effet obligatoire. Comme le remarque Charles de Visscher « Toute l’évolution des avis consultatifs et, tout particulièrement, l’assimilation graduelle de la procédure d’avis à la procédure contentieuse dénotent la 34  35  36  37  38 

Art. 159, paragraphe 10. Art. 191 de la Convention. Art. 130, paragraphe 1 du Règlement. Art. 132, paragraphe 2 du Règlement. L’article 17 du Statut a trait au Juge ad hoc. Rappelons que la Cour permanente de Justice internationale a défini le différend comme « un désaccord sur un point de droit ou de fait, une contradiction, une opposition de thèses juridiques ou d’intérêts entre deux Etats ». Aff. Du Lotus, CPJI, série A, arrêt du 7 septembre 1927, pp. 11-12. Il s’agissait d’une procédure contentieuse. Cependant, dans le cadre de son activité consultative, la Cour n’a jamais donné de définition du différend. L’examen de l’avis donné sur le statut de la Carélie orientale semble indiquer que la compétence de la Cour en matière consultative doit être limitée aux points de droit sans pouvoir s’étendre aux questions de fait ou d’intérêt entre deux Etats. La Cour indique en effet que « dans des circonstances ordinaires, il serait certainement utile que les faits sur lesquels l’avis de la Cour est demandé fussent constants. Le soin de les déterminer ne devrait pas être laissé à la Cour elle-même ». Avis sur la Carélie orientale, série B, no 5. La Cour ne pouvait répondre à une question qui aurait pour effet de trancher au fond un litige pendant entre la Russie et la Finlande.

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préoccupation d’exclure toute possibilité d’introduire, de façon en quelque sorte subreptice, la juridiction obligatoire par la voie détournée de l’avis consultatif, d’éviter qu’un différend entre les Etats soit, en fait, tranché par la réponse donnée à une question qui s’y rapporte39 « et qui peut constituer une questionclef du différend »40. La pratique n’a pas toujours confirmé cette préoccupation d’autant plus que les textes prévoient que les juridictions s’inspirent des dispositions qui s’appliquent en matière contentieuse dans la mesure où elles les reconnaissent applicables. C’est pourquoi, en raison de son caractère d’organe judiciaire, la Chambre des fonds marins devra appliquer les dispositions de la Convention lui donnant compétence pour décider de sa propre compétence41. En ce qui concerne l’exercice de celle-ci, la Chambre est en droit de refuser de donner un avis consultatif à un organe n’ayant pas la qualité pour introduire une demande d’avis dont l’objet porte sur une question considérée comme non juridique. La Chambre peut enfin refuser de répondre à une demande d’avis lorsque la question juridique ne se pose pas dans le cadre des activités de l’Assemblée ou du Conseil de l’Autorité internationale des fonds marins. Conformité avec la Convention et question juridique : a) Conformité avec la Convention d’une proposition au sujet d’une question quelconque La Convention prévoit que lorsque le Président est saisi par un quart au moins des membres de l’Autorité d’une requête écrite tendant à ce que l’Assemblée demande un avis consultatif sur la conformité avec le Convention d’une proposition qui lui est soumise au sujet d’une question quelconque, l’Assemblée demande un avis consultatif à la Chambre pour le règlement des différends relatifs aux fonds marins du Tribunal international du droit de la mer42. La Chambre des fonds marins se voit ainsi reconnaître un statut d’organe régulateur de l’activité de l’Assemblée et du Conseil de l’Autorité. Outre le contentieux relatif aux activités menées dans la Zone, il statue donc sur la conformité à la Convention de propositions soumises au sujet d’une question 39  Charles de Visscher, Aspects récents du droit procédural de la Cour internationale de justice (Paris : Pédone, 1966), 197. 40  Opinion dissidente du juge Winiarski dans l’affaire de l’interprétation des Traités de paix, Recueil 1950, p. 92. 41  Art. 288, paragraphes 3 et 4 de la Convention. 42  Art. 159, paragraphe 10 de la Convention.

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quelconque au sein de l’Assemblée ou du Conseil. Elle devra par conséquent asseoir une procédure43 à cet effet, par laquelle elle fait prévaloir l’autorité supérieure de la Convention des Nations Unies sur le droit de la mer par rapport aux règles et règlements44 susceptibles d’émaner desdites propositions ; en somme une sorte de contrôle de conventionalité avant de rendre son avis. b)

Question juridique

Aux termes de la Convention, le Chambre pour le règlement des différends relatifs aux fonds marins donne des avis consultatifs, à la demande de l’Assemblée ou du Conseil, sur les questions juridiques qui se posent dans le cadre de leur activité. Ces avis sont donnés dans les plus brefs délais45. La Chambre pourrait utilement s’inspirer ici de la démarche adoptée par la Cour de La Haye laquelle a donné de la notion de la question juridique une interprétation libérale en isolant celle-ci des éléments antérieurs et ultérieurs et en s’attachant à l’objet même de la question posée pour déterminer sa nature juridique ; évitant ainsi ses implications politiques qui auraient pu l’amener à refuser de se prononcer. Elle s’emploie le plus souvent à ramener la question à elle posée à un problème abstrait. Elle évite de tenir compte des mobiles qui ont inspiré la demande d’avis et des arguments échangés au sein des organes politiques ainsi que de l’existence d’un différend entre deux ou plusieurs parties sur la question faisant l’objet de la demande d’avis. Cette attitude est plus conforme à la nature d’une juridiction et à sa véritable mission46. Il faut relever cependant que la compétence de la Chambre connaît des limites. Aux termes de la Convention47, en effet, la Chambre pour le règlement des différends relatifs aux fonds marins n’a pas de compétence pour se prononcer sur l’exercice par l’Autorité conformément à la partie XI, de ses pouvoirs discrétionnaires ; elle ne peut en aucun cas se substituer à l’Autorité dans l’exercice des pouvoirs discrétionnaires de celle-ci. Sans préjudice de l’article 191, lorsqu’elle exerce la compétence qui lui est reconnue en vertu 43  Art. 40, paragraphe 2 du Statut et Section H du Règlement du Tribunal, en particulier, l’Art. 130, paragraphe 1 du Règlement. 44  Par exemple le Règlement relatif aux nodules ou celui relatif aux sulfures. 45  Art. 191 de la Convention. 46  Voir M. Dubisson, La Cour internationale de justice (Paris : LGDJ, 1964), 295-303. 47  Art. 189 de la Convention. Sur les règles procédurales applicables au contentieux des fonds marins et en particulier la compétence de la Chambre des fonds marins pour contrôler les actes de l’Autorité, voir Mbenda Diagne, « L’apport du Tribunal international du droit de la mer (TIDM) aux principes juridiques dégagés en droit de la mer », Thèse pour le Doctorat en droit (Université de Nice, 2010), 146-167.

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de l’article 187, la Chambre pour le règlement des différends relatifs aux fonds marins ne se prononce pas sur la question de savoir si une règle, un règlement ou une procédure de l’Autorité est conforme à la Convention et ne peut déclarer nul cette règle, ce règlement ou cette procédure48. La Chambre des fonds marins devra au plus vite définir le champ d’application des pouvoirs discrétionnaires de l’Autorité de façon à faire le départ avec les propositions pouvant être faites, à l’Assemblée ou au Conseil de l’Autorité et susceptibles de faire l’objet d’une demande d’avis consultatifs. La procédure en matière consultative La demande d’avis consultatif et sa transmission La demande d’avis est soumise à la Chambre des fonds marins par l’organe qualifié à cet effet ; l’Assemblée ou le Conseil de l’Autorité. Elle précise la question à soumettre à la Chambre ou la proposition dont la conformité à la Convention est demandée. La demande d’avis est signée par le représentant dûment habilité de l’Autorité. Elle indique en outre le nom de la personne qui représentera l’Autorité au cours de la procédure consultative. Une demande d’avis consultatif sur les questions juridiques qui se posent dans le cadre de l’activité de l’Assemblée ou du Conseil de l’Autorité contient l’énoncé précis de la question. Il y est joint tous documents pouvant servir à élucider la question. Ces documents sont transmis à la Chambre en même temps que la demande ou le plus tôt possible après celle-ci, dans le nombre d’exemplaires requis par le Greffe49. La procédure de rédaction de la demande d’avis n’est pas détaillée dans la Convention, le Statut ou le Règlement. Nous avons la proposition devant faire l’objet de contrôle de conventionalité et la question juridique à soumettre. Il faut peut être se référer à la pratique des Nations unies et au système établi à l’intérieur des organes habilités à demander des avis à la Cour internationale de justice. 48  L’article 189 précise que sa compétence se limite à établir si l’application de règles, règlements ou procédures de l’Autorité dans des cas particuliers serait en conflit avec les obligations contractuelles des parties au différend ou les obligations qui leur incombent en vertu de la Convention et à connaître des recours pour incompétence ou détournement de pouvoir, ainsi que des demandes de dommages-intérêts et autres demandes de réparation introduites par l’une des parties contre l’autre pour manquement de celle-ci à ses obligations contractuelles ou aux obligations qui lui incombent en vertu de la Convention. 49  Art. 131 du Règlement du Tribunal. Le dossier doit comporter 125 exemplaires des pièces de procédure. Voir les « Lignes directrices concernant la préparation et la présentation des affaires dont le Tribunal est saisi » ; paragraphes 9 et 19.

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Dans ces différentes enceintes, la décision de demander un avis est prise lors de débats. L’on peut présumer qu’il en sera de même à l’Assemblée et au Conseil de l’Autorité lorsque ces organes sont saisis de propositions de demandes d’avis. Formellement, la demande d’avis est transmise à la Chambre des fonds marins par le Secrétaire général de l’Autorité dont l’Assemblée et le Conseil constituent les organes. L’examen de la demande d’avis par la Chambre Mesures d’instruction : L’article 130 paragraphe 1 prévoit que, dans l’exercice de ses attributions consultatives, la Chambre pour le règlement des différends relatifs aux fonds marins applique les dispositions de la présente section et s’inspire, dans la mesure où elle les reconnaît applicables, des dispositions du Statut et du présent Règlement qui s’appliquent en matière contentieuse50. La procédure consultative se conforme aux règles applicables en matière contentieuse chaque fois que cela sera possible. La Chambre appliquera les règles de la procédure contentieuse après avoir recherché si la demande d’avis consultatif a trait ou non à une question juridique actuellement pendante entre deux ou plusieurs parties. Si la Chambre en décide ainsi, l’article 17 du Statut s’applique ainsi que les dispositions du Règlement qui pourvoient à l’application de et article51. Il s’agit de la nomination de juges ad hoc. On glisse 50  De même, l’article 40, paragraphe 2 du Statut du Tribunal dispose : « Dans l’exercice de ses attributions consultatives, la Chambre s’inspire des dispositions de la présente annexe [VI] relatives à la procédure suivie devant le Tribunal, dans la mesure où elle les reconnaît applicables ». 51  Art. 130, paragraphe 2 du Règlement ; l’article 17 du Statut du Tribunal dispose : « Article 17 Membres ayant la nationalité des parties 1. Les membres du Tribunal ayant la nationalité de l’une quelconque des parties à un différend conservent le droit de siéger. 2. Si le Tribunal, lorsqu’il connaît d’un différend, comprend un membre de la nationalité d’une des parties, toute autre partie peut désigner une personne de son choix pour siéger en qualité de membre du Tribunal. 3. Si le Tribunal, lorsqu’il connaît d’un différend, ne comprend aucun membre de la nationalité des parties, chacune de ces parties peut désigner une personne de son choix pour siéger en qualité de membre du Tribunal. 4. Le présent article s’applique aux chambres visées aux articles 14 et 15 de la présente annexe. En pareil cas, le Président, en consultation avec les parties, invite autant de membres de la chambre qu’il est nécessaire à céder leur place aux membres du Tribunal de la nationalité des parties intéressées et, à défaut ou en cas d’empêchement, aux membres spécialement désignés par ces parties.

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ainsi résolument vers le différend. Il est vrai que l’existence d’un différend entre deux ou plusieurs parties ne fait guère obstacle à ce que la Chambre puisse être saisie, par la voie consultative, d’une question juridique se rapportant à l’objet du différend. Normalement, cette procédure garde ses caractéristiques propres qui auraient du la soustraire à la nomination de juges ad hoc. On peut relever l’absence de parties. Les débats sont circonscrits, non par des conclusions, mais plutôt par les termes de la demande d’avis. La réponse de la Chambre est faite non pas à des Etats mais à l’organe international habilité à demander l’avis consultatif. On retrouve le dilemme récurrent de la conciliation de la fonction consultative avec le caractère essentiellement judiciaire des juridictions internationales. Qui plus est, les parties en question sont soit des Etats, soit des entités non étatiques ; organisations internationales, personnes physiques ou morales,



5. Lorsque plusieurs parties font cause commune, elles ne comptent, pour l’application des dispositions qui précèdent, que pour une seule. En cas de doute, le Tribunal décide. 6. Les membres désignés conformément aux paragraphes 2, 3 et 4, doivent satisfaire aux prescriptions des articles 2, 8 et 11, de la présente annexe. Ils participent à la décision dans des conditions de complète égalité avec leurs collègues. » L’article 22 du Règlement du Tribunal qui régit la nomination d’un juge ad hoc par une « entité autre qu’un Etat » se lit : « Article 22 1. Une entité autre qu’un Etat ne peut désigner un juge ad hoc que si : a) l’une des parties adverses est un Etat Partie et que le Tribunal compte sur le siège un juge de la nationalité de cet Etat ou, lorsque cette partie est une organisation internationale, si le Tribunal compte sur le siège un juge de la nationalité de l’un de ses Etats membres ou si l’Etat Partie a lui-même désigné un juge ad hoc ; ou b) le Tribunal compte sur le siège un juge de la nationalité de l’Etat qui patronne l’une des parties adverses. 2. Toutefois, une organisation internationale ou une personne physique ou morale ou une entreprise d’Etat ne peut désigner un juge ad hoc si le Tribunal compte sur le siège un juge de la nationalité de l’un des Etats membres de cette organisation internationale ou un juge de la nationalité de l’Etat qui patronne cette personne physique ou morale ou entreprise d’Etat. 3. Si une organisation internationale est partie à une affaire et que le Tribunal compte sur le siège un juge de la nationalité d’un Etat membre de cette organisation, la partie adverse peut désigner un juge ad hoc. 4. Si le Tribunal compte sur le siège deux ou plusieurs juges de la nationalité des Etats membres de l’organisation internationale concernée ou des Etats qui patronnent une partie, le Président peut, après avoir consulté les parties, demander à un ou plusieurs de ces juges de se retirer. »

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entreprise d’Etat. L’on peut s’interroger sur la nature des différends pouvant se cristalliser dans les relations entre ces différentes entités. En principe52, les avis de la Chambre des fonds marins n’ont pas d’effet obligatoire. Leur autorité est morale. Ils n’ont pas non plus, en droit, l’autorité de la chose jugée. Pourront-ils s’imposer, en fait, au Tribunal ? Que se passerait-il si la Chambre ou le Tribunal étaient saisis d’un différend portant sur une question juridique à laquelle ils auraient déjà apporté une réponse sous la forme d’un avis consultatif ? Pourront-ils se dégager des principes et solutions adoptés dans l’avis consultatif ? L’idéal serait de pouvoir adopter le type d’avis qui peuvent être rendus sans prendre position au sujet d’une question pendante entre deux ou plusieurs parties. Notification, phase écrite et phase orale : Le Greffier notifie immédiatement la demande d‘avis consultatif à tous les Etats Parties. La Chambre ou, si elle ne siège pas, son Président, identifie les organisations intergouvernementales susceptibles de fournir des informations sur la question. Le Greffier notifie cette demande à ces organisations. Les Etats Parties et les organisations sont invités à présenter des exposés écrits sur la question dans les délais fixés par la Chambre. Ces exposés sont communiqués aux Etats Parties et aux organisations ayant présenté des exposés écrits. La Chambre peut fixer de nouveaux délais dans lesquels ces Etats Parties et organisations peuvent présenter des exposés écrits sur les exposés présentés. La Chambre décide aussi si une procédure orale aura lieu et en fixe, le cas échéant, la date d’ouverture. Les Etats Parties et les organisations sont invités à présenter des exposés oraux au cours de ladite procédure53. Les exposés écrits et les documents annexés sont rendus accessibles au public le plus rapidement possible après avoir été présentés à la Chambre54.

52  Charles de Visscher op. cit., 195, explique que : « l’autorité qui s’attache aux énoncés de droit contenus dans les avis consultatifs de la Cour est étrangère aux dispositions statuaires relatives à la chose jugée. C’est une autorité morale qui s’exerce, nonobstant l’absence de force obligatoire au sens formel ou procédural du terme. Elle procède dans une large mesure du prestige de la Cour . . . et dépend de la valeur intrinsèque des opinions émises. Dans le plan de leur autorité doctrinale, il n’y a guère de distinction à faire entre les arrêts et avis. Tout comme les arrêts, les avis consultatifs contribuent à la formation d’un corps de jurisprudence homogène . . . ». 53  Article 133 du Règlement du Tribunal. 54  Article 134 du Règlement du Tribunal.

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Le prononcé des avis : Lorsque la Chambre a achevé son délibéré et adopté son avis consultatif, celui-ci est lu en audience publique de la Chambre55. En la forme, l’avis comprend : a) l’indication de la date à laquelle il est prononcé ; b) les noms des juges qui y ont pris part ; c) la question ou les questions sur lesquelles l’avis consultatif de la Chambre a été demandé ; d) l’exposé sommaire de la procédure ; e) les circonstances de fait ; f) les motifs de droit sur lesquels il est fondé ; g) la réponse à la question ou aux questions posées à la Chambre ; h) l’indication du nombre et des noms des juges ayant constitué la majorité et de ceux ayant constitué la minorité sur chaque question posée à la Chambre ; i) l’indication du texte faisant foi56. L’avis peut être accompagné d’opinions individuelles ou dissidentes ou encore de déclarations.57 Au terme de l’article 136 du Règlement, le Greffier avertit le Secrétaire général de l’Autorité des date et heure fixées pour l’audience publique à laquelle il sera donné lecture de l’avis consultatif. Il avertit également les Etats Parties et les organisations intergouvernementales directement intéressés. Un exemplaire de l’avis est déposé aux archives du Tribunal, un autre est remis au Secrétaire général de l’Autorité et au Secrétaire général de l’Organisation des Nations Unies. Des copies sont adressées aux Etats Parties ainsi qu’aux organisations intergouvernementales directement intéressées. Nous allons rappeler les éléments essentiels du premier avis consultatif rendu par la Chambre des fonds marins.

Responsabilités et obligations des Etats qui patronnent des personnes et entités dans le cadre d’activités menées dans la Zone

Le 25 février 2010, l’Autorité internationale des fonds marins a publié un projet d’ordre du jour révisé de la 16ème Session du Conseil58 pour y inclure une communication du Gouvernement de la République de NAURU, membre de l’Autorité. Le point 7 du nouvel ordre du jour est intitulé « Proposition tendant à demander un avis consultatif à la Chambre pour le règlement des différends relatifs aux fonds marins du Tribunal international du droit de la mer conformément à l’article 191 de la Convention des Nations Unies sur le droit de la mer 55  56  57  58 

Article 135, paragraphe 1 du Règlement du Tribunal. Article 135, paragraphe 2 du Règlement du Tribunal. Article 135, paragraphe 3 du Règlement du Tribunal. ISBA/16/C/L.1/Rev. 1 du 25 février 2010.

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sur des questions relatives à la responsabilité des Etats qui patronnent [des entreprises d’Etat, ou des personnes physiques ou morales] ». Une note verbale a aussi été envoyée aux Etats membres et aux observateurs de l’Autorité pour leur notifier le changement59. Par sa décision du 6 mai 2010, l’Autorité internationale des fonds marins a saisi la Chambre des fonds marins de ladite demande. C’est la toute première instance introduite auprès de la Chambre. La décision du Conseil se lit : Le Conseil de l’Autorité internationale des fonds marins, Considérant que les activités de développement dans la Zone ont déjà commencé, Ayant à l’esprit l’échange de vues sur les points de droit entrant dans le cadre de ses activités, Décide, conformément à l’article 191 de la Convention des Nations Unies sur le droit de la mer (« La Convention »), De demander à la Chambre pour le règlement des différends relatifs aux fonds marins du Tribunal international du droit de la mer, en application de l’article 131 du Règlement dudit Tribunal, de rendre un avis consultatif sur les questions suivantes : 1)

2)

3)

Quelles sont les responsabilités et obligations juridiques des Etats parties à la Convention qui patronnent des activités menées dans la Zone en application de la Convention, en particulier de la partie XI et de l’Accord de 1994 relatif à l’application de la partie XI de la Convention des Nations Unies sur le droit de la mer du 10 décembre 1982 ? Dans quelle mesure la responsabilité d’un Etat Partie est-elle engagée à raison de tout manquement aux dispositions de la Convention, en particulier de la partie XI et de l’Accord de 1994, de la part d’une entité qu’il a patronnée en vertu de l’article 153, paragraphe 2, lettre b), de la Convention ? Quelles sont les mesures nécessaires et appropriées qu’un Etat qui patronne la demande doit prendre pour s’acquitter de la responsabilité qui lui incombe en application de la Convention, en particulier de l’article 139 et de l’annexe III ainsi que de l’Accord de 1994?60

59  La proposition soumise par la délégation de NAURU fait l’objet du document ISBA/16/C/6 du 1er mars 2010, 1 à 12. Voir la décision ISBA/16/C/3 du 6 mai 2010 ; aussi le Communiqué de presse du Tribunal du 14 mai 2010. 60  La demande d’avis consultatif a été inscrite au rôle des affaires sous le numéro 17 et le Conseiller juridique, Mr. Lodge, a été nommé représentant de l’autorité internationale des

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La Chambre rappelle que les dispositions de l’article 293, paragraphe 1, de la Convention et l’article 38 du Statut du Tribunal définissent le droit applicable par elle. Il convient de relever que les dispositions de l’Accord du 28 juillet 1994 et de la partie XI, doivent, conformément à l’article 2, paragraphe 1, dudit Accord « être interprétées et appliquées ensemble comme un seul et même instrument. En cas d’incompatibilité entre l’Accord et la partie XI, les dispositions du présent Accord l’emportent ». Les règles de procédure applicables à la procédure consultative devant la Chambre sont énoncées à l’article 40, paragraphe 2 du Statut du Tribunal et à la section H du Règlement de celui-ci, en particulier en son article 130, paragraphe premier61. L’avis est rendu à l’unanimité des membres de la Chambre ; ce qui lui confère une autorité singulière d’autant qu’il s’agit de la première instance consultative. A la première question soumise par le Conseil62, la Chambre répond que les Etats qui patronnent ont deux types d’obligations aux termes de la Convention et des instruments qui s’y rapportent. D’une part, l’obligation de veiller au respect par le contractant patronné des termes du contrat et des obligations énoncées dans la Convention et les instruments qui s’y rapportent. Il s’agit d’une obligation de « diligence requise ». L’Etat qui patronne est tenu de faire de son mieux pour que les contractants patronnés s’acquittent des obligations qui leur incombent. La norme relative à la diligence requise peut varier dans le temps et dépendre du niveau de risque des activités concernées. Cette obligation de ‘diligence requise’ nécessite que l’Etat qui patronne prenne des mesures au sein de son système juridique. Ces mesures doivent être des lois et règlements et des mesures administratives. Ces mesures doivent répondre à une norme, être ‘raisonnablement appropriées’. D’autre part, des obligations directes auxquelles les Etats qui patronnent doivent se conformer indépendamment de leur obligation de veiller à ce que les contractants patronnés adoptent une certaine conduite. Le respect de ces obligations peut aussi être considéré comme un facteur pertinent pour que l’Etat qui patronne s’acquitte de son obligation de « diligence requise ». Les obligations directes les plus importantes incombant à l’Etat qui patronne sont fonds marins aux fins de la procédure. Pour la chronologie de celle-ci, voir les paragraphes 5 à 24 de l’avis consultatif du 1er février 2011. En ce qui concerne les questions relatives à la compétence de la Chambre et celles de la Recevabilité de la demande, voir les paragraphes 31 à 49 de l’avis. 61  Voir les paragraphes 50 à 56 de l’avis. Sur les questions d’interprétation, voir les paragraphes 57 à 71 dudit avis. 62  La question est examinée par la Chambre aux paragraphes 72 à 163 de l’avis du 1er février 2011.

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les suivantes : a) l’obligation d’aider l’Autorité, énoncée à l’article 153, paragraphe 4 de la Convention  ; b) l’obligation d’appliquer une approche de précaution, reflétée dans le principe 15 de la Déclaration de Rio et énoncée dans le Règlement relatif aux nodules et le Règlement relatif aux sulfures. Il convient aussi de considérer que cette obligation fait partie intégrante de l’obligation de ‘diligence requise’ de l’Etat qui patronne et est applicable au-delà du cadre du Règlement relatif aux nodules et du Règlement relatif aux sulfures ; c) l’obligation d’appliquer les meilleures pratiques écologiques, énoncées dans le Règlement relatif aux sulfures, mais également applicable dans le contexte du Règlement relatif aux nodules ; d) l’obligation d’adopter des mesures afin que le contractant fournisse des garanties dans l’éventualité d’ordres en cas d’urgence pour assurer la protection du milieu marin ; et e) l’obligation d’offrir des voies de recours pour obtenir réparation. L’Etat qui patronne a l’obligation de diligence requise de veiller à ce que le contractant patronné respecte l’obligation de procéder à une évaluation de l’impact sur l’environnement qui lui est faite au paragraphe 7, de la section 1 de l’annexe à l’Accord de 1994. Cette dernière obligation est regardée par la chambre comme une obligation générale en droit coutumier63. Ces obligations s’appliquent également aux Etats développés et aux Etats en développement, sauf dispositions contraires dans les textes applicables, tel que le principe 15 de la Déclaration de Rio, dont il est fait mention dans le Règlement relatif aux nodules et dans celui relatif aux sulfures, selon lequel les Etats doivent appliquer l’approche de précaution ‘selon leurs capacités’. Les dispositions de la Convention qui prennent en compte des intérêts et des besoins spécifiques des pays en développement devraient être appliquées effectivement afin que les Etats en développement soient en mesure de participer aux activités minières relatives aux grands fonds marins sur un pied d’égalité avec les Etats développés. En ce qui concerne la seconde question, la Chambre est d’avis que la responsabilité de l’Etat qui patronne est engagée lorsqu’il y a manquement aux obligations qui lui incombent en vertu de la Convention et des instruments qui s’y rapportent. Le manquement du contractant patronné à ses obligations n’engage pas automatiquement la responsabilité de l’Etat qui patronne64. Les conditions auxquelles la responsabilité de l’Etat qui patronne est engagée sont

63  Elle est énoncée en tant qu’obligation directe de tous les Etats à l’article 206 de la Convention et en tant qu’un des aspects de l’obligation faite à l’Etat qui patronne d’aider l’Autorité en vertu de l’article 153, paragraphe 4, de la Convention. 64  L’examen de la question 2 fait l’objet des paragraphes 164 à 211 de l’avis.

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les suivantes : a) Manquement de l’Etat qui patronne aux obligations qui lui incombent aux termes de la Convention  ; b) Existence d’un dommage. La responsabilité de l’Etat qui patronne en cas de manquement à ses obligations de diligence requise nécessite qu’un lien de causalité soit établi entre ce manquement et le dommage. Cette responsabilité est déclenchée par un dommage résultant d’un manquement du contractant patronné à ses obligations. L’existence d’un lien de causalité entre le manquement de l’Etat qui patronne et le dommage est requise et ne peut être présumée. L’Etat qui patronne est exonéré de toute responsabilité s’il a pris « toutes les mesures nécessaires et appropriées pour assurer le respect effectif », par le contractant patronné, des obligations qui incombent à ce dernier. Cette exonération de responsabilité ne s’applique pas si l’Etat qui patronne a manqué à ses obligations directes. La responsabilité de l’Etat qui patronne et celle du contractant patronné existent parallèlement et ne sont pas conjointes et solidaires. L’Etat qui patronne n’a pas de responsabilité résiduelle. En cas de patronage multiple, la responsabilité est conjointe et solidaire sauf si les Règlements de l’Autorité en disposent autrement. La responsabilité de l’Etat qui patronne doit correspondre au montant effectif du dommage. Aux termes du Règlement relatif aux nodules et du Règlement relatif aux sulfures, le contractant reste responsable même après l’achèvement de la phase d’exploration. Ceci est également applicable à la responsabilité de l’Etat qui patronne. Les règles relatives à la responsabilité énoncées dans la Convention et les instruments qui s’y rapportent sont sans préjudice des règles du droit international. Dans le cas où l’Etat qui patronne a honoré ses obligations, le dommage causé par le contractant patronné n’engage pas la responsabilité de l’Etat qui patronne. Si celui-ci a manqué à ses obligations et qu’il n’en est pas résulté de dommages, les conséquences de cet acte illicite sont déterminées par le droit international coutumier. Il pourra être envisagé de créer un fonds d’affectation spéciale pour couvrir les dommages non couverts en vertu de la Convention. S’agissant de la troisième et dernière question65 relative aux mesures à prendre, la Chambre répond que la Convention demande que l’Etat qui patronne adopte, au sein de son système juridique, des lois et règlements et prenne des mesures administratives qui ont deux fonctions distinctes : d’une part, faire en sorte que le contractant honore les obligations qui lui incombent, et exonérer l’Etat qui patronne de sa responsabilité, de l’autre. La nature et la portée de ces lois et règlements et des mesures administratives sont fonction du système juridique de l’Etat qui patronne. Ces lois et règlements ainsi que 65  La troisième question est examinée aux paragraphes 212 à 241 de l’avis.

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les mesures administratives peuvent prévoir la mise en place de mécanismes de surveillance active des activités du contractant patronné et de coordination entre les activités de l’Etat qui patronne et celle de l’Autorité. Selon la Chambre, les lois et règlements et les mesures administratives devraient être en vigueur aussi longtemps que le contrat passé avec l’Autorité est applicable. L’existence de ces lois et règlements et de ces mesures administratives n’est pas une condition de la conclusion d’un contrat avec l’autorité ; toutefois, elle est nécessaire pour que l’Etat qui patronne s’acquitte de l’obligation de diligence requise et qu’il puisse être exonéré de sa responsabilité. Ces mesures nationales devraient aussi couvrir les obligations qui incombent au contractant après l’achèvement de la phase d’exploration66. Compte tenu de l’exigence selon laquelle les mesures adoptées par l’Etat qui patronne doivent être des lois et règlements et des mesures administratives, on ne saurait considérer que cet Etat a satisfait à ses obligations s’il a seulement conclu un arrangement contractuel avec le contractant. L’Etat ne dispose pas d’un pouvoir discrétionnaire absolu en ce qui concerne l’adoption de lois et règlements et la prise de mesures administratives. Il doit agir de bonne foi en prenant en considération les différentes obligations qui se présentent à celui d’une manière raisonnable, pertinente et favorable à l’intérêt de l’humanité toute entière. En matière de protection du milieu marin, les lois et règlements ainsi que les mesures administratives de l’Etat ne peuvent pas être moins stricts que ceux adoptés par l’Autorité ou moins efficaces que les règles, règlements et procédures internationaux. Les dispositions que l’Etat peut juger nécessaire d’inclure dans sa législation nationale peuvent concerner, entre autres, la viabilité financière et les capacités techniques des contractants patronnés, les conditions régissant la délivrance d’un certificat de patronage et les sanctions encourues en cas de manquement desdites contractants. Au titre de son obligation de ‘diligence requise’, l’Etat qui patronne doit veiller à ce que les obligations du contractant patronné soient rendues exécutoires67. L’avis se présente comme une contribution intéressante à la fixation du régime des fonds marins fondé 66  Conformément à l’article 30 du Règlement relatif aux nodules et à l’article 32 du Règlement relatif aux sulfures. 67  Des indications précises quant au contenu des mesures nationales à prendre par l’Etat qui patronne sont données dans diverses dispositions de la Convention et des instruments qui s’y rapportent. Ceci s’applique, en particulier, aux dispositions de l’article 39 du Statut requérant que les décisions de la Chambre soient exécutoires sur le territoire des Etats Parties au même titre que les arrêts ou ordonnances de la plus haute instance judiciaire de l’Etat Partie sur le territoire duquel l’exécution est demandée, rappelle l’avis, 78.

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sur le concept de patrimoine commun de l’humanité laquelle est exaucée au rang de sujet de droit avec comme agent juridique l’Autorité internationale des fonds marins. En traitant à la fois le régime minier des fonds marins et les problèmes liés à la préservation du milieu marin, l’avis consultatif initie un processus de complétude du régime juridique de la Zone dans ses différents aspects. Il faudra peut-être d’autres demandes d’avis – en fonction des activités menées dans la zone internationale des fonds marins – pour compléter le tableau. A côté des avis consultatifs que l’Assemblée ou le Conseil de l’Autorité peuvent demander en vertu de la Convention des Nations Unies sur le droit de la mer, il y a d’autres avis consultatifs fondés sur d’autres accords internationaux et qui intéressent plutôt le Tribunal plénier.

Le Tribunal plénier

Aux termes de la Convention des Nations Unies sur le droit de la mer et du Statut du Tribunal, la fonction consultative est exercée par la Chambre pour le règlement des différends relatifs aux fonds marins. Ces deux instruments n’envisagent guère la compétence consultative du Tribunal en formation plénière. On n’en trouve pas trace non plus dans le projet de la Commission préparatoire. Il s’agit d’une création du Tribunal à l’occasion de l’élaboration de son Règlement en 1996 ; l’on a alors évoqué la possibilité pour le Tribunal plénier de donner des avis consultatifs. C’est pourquoi, la clause attributive de compétence se trouve curieusement dans le Règlement. Elle fait l’objet de l’article 138 qui prévoit que le Tribunal peut donner un avis consultatif sur une question juridique dans la mesure où un accord international se rapportant aux buts de la Convention prévoit expressément qu’une demande d’un tel avis est soumise au Tribunal. On a invoqué les dispositions de l’article 288 paragraphe 2 et celles de l’article 21 du Statut du Tribunal pour justifier la compétence consultative du Tribunal plénier68. L’article 288 paragraphe 2 de la Convention apparaît 68  Pour une discussion des arguments présentés, voir Ki-Jun You, « Advisory Opinions of the International Tribunal for the Law of the Sea : Article 138 of the Rules of the Tribunal, Revisited », Ocean Development and International Law, The Journal of Maritime Affairs, Vol. 39 (2008) : 360-371 ; spec. 361-363. L’article 288, paragraphe 2 de la Convention dispose : « Une cour ou un tribunal visé à l’article 287 a aussi compétence pour connaître de tout différend qui est relatif à l’interprétation ou à l’application d’un accord international se rapportant aux buts de la Convention et qui lui est soumis conformément à cet accord ». Quant à l’article 21 du Statut, il se lit : « Le Tribunal est compétent pour tous les

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plutôt comme un fondement de la juridiction consensuelle du Tribunal au même titre de la Cour internationale de justice et des autres moyens prévus à l’article 287 de la Convention. Qui plus est, il figure dans la section des procédures obligatoires aboutissant à des décisions obligatoires. Or, l’avis consultatif est une consultation juridique dépourvue de force obligatoire et qui, comme énoncé individuel, n’a même pas de force légale. L’article 288 ne peut donc être invoqué ou interprété comme fondement à la compétence consultative du tribunal. Il en va de même de l’article 21 du Statut du Tribunal qui a besoin d’être interprété et précisé par le Tribunal. En revanche, il est possible qu’un organe chargé de fonctions juridictionnelles comme le Tribunal se voie prié, parce que son Statut ne l’interdit pas, de donner un avis de droit. Il faut rappeler qu’il arrive parfois qu’un tribunal arbitral soit amené à rendre un avis consultatif. La terminologie employée peut paraître inhabituelle et il semble étrange qu’un tribunal arbitral soit institué pour rendre un avis consultatif puisqu’il entre dans la mission d’un tribunal arbitral de rendre des sentences obligatoires. Il n’en demeure pas moins que les accords aériens franco-américains et italo-américains instituaient des tribunaux arbitraux chargés de rendre des avis consultatifs. L’article 10 de l’accord franco-américain dispose que tout différend doit être soumis « pour un avis consultatif à un tribunal de trois membres » ; et d’après l’article 13 de l’accord italo-américain « tout différend sera soumis aux fins de rapport consultatif à un tribunal composé de trois arbitres ». Il vaut mieux passer par la voie de l’accord pour aboutir à une juridiction consultative du Tribunal plutôt que de rechercher un fondement juridique inexistant dans la Convention ou le Statut. La pratique observée depuis quelque temps peut aider à lever les incertitudes que recèle l’article 138. (A) Il faudra ensuite examiner la question des organes habilités, (B) les matières éligibles pour les avis et les conditions (C).

La pratique récente

Plusieurs fois dans le passé récent, le Tribunal s’est employé à réaffirmer sa compétence consultative, appuyé en cela par nombre d’Etats. A l’occasion des débats au sein de l’Assemblée générale des Nations Unies portant sur les

différends et toutes les demandes qui lui sont soumis conformément à la Convention et toutes les fois que cela est expressément prévu dans tout autre accord conférant compétence au Tribunal ».

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« Océans et le droit de la mer : Rapport du Secrétaire général69 » comme dans les réunions des Etats Parties à la Convention70, la question de la compétence consultative revient de façon presque rituelle71. Au premier atelier régional du Tribunal organisé à Dakar (Sénégal) du 30 septembre au 2 octobre 2006, les délégués sont amplement revenus sur la question. De même au second atelier régional de Libreville (Gabon) tenu du 23 au 27 mars 2007, le Directeur général du Comité régional des pêches (COREP) du Golfe de Guinée s’est également intéressé à la question de la compétence consultative du Tribunal. Lors du quatrième atelier du Tribunal tenu à Singapour, le Vice Premier Ministre de ce pays devait déclarer que « The ITLOS should be empowered to offer advisory opinion, like the [ICJ]72 ». A l’atelier régional, le Sixième, du Tribunal tenu au Cap (Afrique du Sud) du 7 au 9 octobre 2009 sur le thème « Le Règlement des différends relatifs au droit de la mer en Afrique australe », la question de la compétence consultative du Tribunal a encore été soulevée. Quatre délégués73 se sont saisis de la question, en particulier celle de savoir si « des organisations régionales de gestion des pêches seraient [-elles] autorisées à demander un avis consultatif ?74 ». A l’occasion de la seizième session de la réunion des Etats Parties, le délégué argentin devait dire son enthousiasme pour « in particular paragraph 18 of the report, which referred to the competence of State Parties to call for advisory opinion from the Tribunal75 ». De même le délégué islandais à l’Assemblée générale des Nations Unies s’est montré très favorable à la compétence consultative du Tribunal76. On note ainsi un mouvement d’ensemble en faveur de la compétence consultative du Tribunal, expression de soutien des Etats Parties à la Convention, lesquels semblent y voir une procédure de repli. L’on se rappelle

69  Voir allocution de Rüdiger Wolfrum, du 28 novembre 2005, UN Doc. A/60/PV.55 (2005) : 27. 70  Voir Rapport du Président Dolliver Nelson à la 15ième réunion des Etats Parties, le 16 juin 2005, in Annuaire du Tribunal international du droit de la mer, 2005, pp. 187 et suivantes. 71  Table ronde organisée à l’ONU le 29 novembre 2005. Doc. ITLOS/Communiqué de Presse 101 (2005) : 3. 72  « Highlights : Malaysian, Singapour Press 30 May 07 ». 73  Il s’agit du Lesotho, de la Namibie, de l’Afrique du Sud et du Mozambique. Voir, Rapport du 23 février 2010, 3-4. 74  Questions du délégué namibien. Id., 4. 75  Référence à l’Allocution de M. Rüdiger Wolfrum du 19 juin 2006, portant « Rapport du Tribunal à la 16ième session de la Réunion des Etats Parties ». 76  Allocution du 28 novembre 2005, UN Doc. A/60/PV.54 (2004), 27.

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que la Convention77 prévoit qu’aucune disposition de la présente partie [Partie XV] n’affecte le droit des Etats Parties de convenir à tout moment de régler par tout moyen pacifique de leur choix un différend surgissant entre eux à propos de l’interprétation ou de l’application de la Convention. Dans cet esprit, on peut tout à fait concevoir que des parties à la Convention concluent un accord international se rapportant aux buts de celle-ci et prévoyant expressément une demande d’avis consultatif au Tribunal78. Il faut ensuite déterminer la forme que prendra l’accord ; un traité institutif d’une organisation internationale ou une convention quelconque.

Les organes habilités à demander l’avis

Il n’y a pas, à proprement parler, un mécanisme d’habilitation institué79. A priori, tout organe, désigné ou agissant conformément à un accord international dûment conclu, peut faire une demande d’avis consultatif. L’organe en question doit être celui d’une organisation internationale qui lui attribue la compétence de demander un avis consultatif au Tribunal car, jusqu’ici, la procédure consultative est ouverte aux organisations internationales et à elles seules80. Ces organisations internationales devront remplir les conditions 77  Art. 280 de la Convention portant « Règlement des différends par tout moyen pacifique choisi par les parties ». 78  Pour se conformer aux conditions énoncées à l’article 138 du Règlement. 79  Comme le prévoit l’art. 96 de la Charte des Nations Unies en ce qui concerne la Cour internationale de justice. 80  Certains auteurs pensent que la procédure consultative devant le Tribunal devrait être aussi ouverte aux Etats. V. José Luis Jesus, « Article 138 » in The Rules of the International Tribunal for the Law of the Sea : A Commentary, pp. 394, Rao et Gautier eds. (2006). Le Juge Wolfrum pense, quant à lui, que la fonction consultative du Tribunal pourrait potentiellement se révéler une « alternative to contentious proceedings ». Rapport op. cit. (note 63), paragraphe 18. Pour le Juge Rao, la réunion des Etats Parties devrait pouvoir demander des avis consultatifs au Tribunal sur des questions juridiques relevant de la Convention ; voir P.C. Rao « ITLOS : The First Six Years », MPYIL, 183, 2002, spéc, pp. 211212. Le juge Rao écrit : The question arises as to whether a Meeting of States Parties could seek advisory opinions of the Tribunal on legal questions arising under the Convention. It may be recalled that the Council of the League of Nations made requests for advisory opinions on behalf of other international agencies and States, though neither the League Covenant expressly authorized the Council or Assembly of the League to request such opinions, nor did the constitutions of others expressly authorize them to ask the League to request advisory opinions.147 On the basis of this practice, it may be argued

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énoncées à l’article 138 du Règlement Ce n’est pas à dire que les Etats ne pourront jamais ouvrir la procédure consultative devant le Tribunal, mais ils devront trouver la démarche appropriée81.

Matières et conditions

Matières La voie consultative est ouverte lorsqu’un accord international82 se rapportant aux buts de la Convention le prévoit. Ces buts de la Convention sont that even a ‘treaty organ’ like the Meeting of States Parties might, if it so decides, request advisory opinions of the Tribunal. How else could it (and through it the Commission on the Limits of the Continental Shelf set up under Annex II to the Con­ vention) obtain independent advice on legal questions arising within the scope of their activities under the Convention, especially when they concern the interpretation or application of the Convention? When the need arose, the States Parties postponed in 1995 the election of judges to the Tribunal, clearly deviating from the mandatory provisions of article 4, paragraph 3, of the Statute.148 Similarly, the eleventh Meeting of States Parties made a change in respect of the date of commencement of the ten-year period for making submissions to the Commission on the Limits of the Continental Shelf, clearly deviating from the provisions of article 4 of Annex II to the Convention.149 In the scheme of the Convention and the Statute, there is thus warrant for the Meeting of States Parties to seek advisory opinions of the Tribunal should the need arise.  Voir l’allocution prononcée devant la session plénière de l’Assemblée générale le 26 octobre 1999 par le juge Stephen M. Schwebel, qui était alors le Président de la CIJ.  Voir l’annuaire 1996-1997 du Tribunal, vol. 1, 6.    Voir SPLOS/73, pp. 11-13.  Le Statut juridique de la réunion des Etats Parties est, pour le moins, incertain. L’article 319, paragraphe 2, lettre e) dispose : « Outre les fonctions de dépositaire, le Secrétaire général (des Nations Unies) convoque les réunions nécessaires des Etats Parties conformément à la Convention.  La réunion des Etats Parties se présente ainsi comme une conférence internationale périodique et pas comme un organe institué permanent. Qui plus est, « tous les Etats Parties sont ipso facto membres de l’Autorité » aux termes de l’article 156, paragraphe 2 de la Convention. La réunion des Etats Parties rappelle les conférences diplomatiques traditionnelles, du point de vue de son fonctionnement, les délégués doivent suivre les instructions de leur gouvernement respectif. Par leur truchement, les Etats Parties conservent l’initiative de l’action à l’Autorité internationale des fonds marins comme aux Nations Unies. Les Etats peuvent ainsi agir sur le Tribunal du droit de la mer, l’Assemblée ou le Conseil de l’Autorité. 81  Voir Ki Jun You, op. cit. (note 58), 370, note 43. 82  Il s’agit donc d’un traité au sens de l’article 1 al. A) de la Convention de Vienne sur le droit des traités du 23 mai 1969.

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prolifiques. On peut citer : les ressources biologiques de la mer ; la conservation générale, environnement et écosystème ; la recherche scientifique marine ; la pollution ; la navigation maritime ; la criminalité en mer et la sécurité maritime ; les créances maritimes et responsabilités ; les transports maritimes. Dans ces matières, il y a de nombreux problèmes qui peuvent utilement faire l’objet de demande d’avis consultatifs comme le révèlent les différents ateliers du Tribunal. Une question récurrente a trait au rôle des organismes régionaux de gestion des pêches et à la pêche illicite. Une autre question d’importance est celle relative à la recherche scientifique marine. On sait que tous les Etats ainsi que les organisations internationales compétentes ont le droit d’effectuer des recherches scientifiques marines83. Ce droit est limité par des droits et obligations des autres Etats tels que définis dans la Convention. Le champ d’application des droits et obligations des uns et des autres n’est pas simple à déterminer. Les débats au sein des groupes d’experts du droit de la mer le montrent à souhait84. Un autre problème très sensible est celui dit de la piraterie et autres actes de violence en mer. Ces actes sont commis dans des zones sous juridiction nationale : à proximité des côtes, dans les eaux des détroits, dans les avant-ports. Ils sont, de nos jours, commis aussi en haute mer. La mutabilité des actes de piraterie et de violence en mer va plutôt dans le sens de leur multiplication. Le régime juridique qui leur est applicable n’est guère aisé à déterminer. Il y a aussi la question de la pollution et la préservation du milieu marin. Aux termes de la Convention, il incombe aux Etats de veiller à l’accomplissement de leurs obligations internationales en ce qui concerne la protection et la préservation du milieu marin. Ils sont responsables conformément au droit international. Les Etats veillent à ce que leur droit interne offre des voies de recours permettant d’obtenir une indemnisation rapide et adéquate ou autre réparation des dommages résultant de la pollution du milieu marin par des personnes physiques ou morales relevant de leur juridiction. Pour ce faire, les Etats coopèrent pour assurer l’application et le développement du droit international de la responsabilité en ce qui concerne l’évaluation et l’indemnisation des dommages et le règlement des différends en la matière85. Il y a là des problèmes très complexes qui peuvent nécessiter des demandes d’avis consultatifs lesquelles sont assujetties à un certain nombre de conditions à remplir.

83  Partie XIII de la Convention, voir article 238. 84  Voir les débats du groupe d’Experts de la Commission océanographique internationale de l’UNESCO, le groupe ABELOS. www.unesco.org. 85  Voir article 235 de la Convention.

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Conditions  L’article 138 du Règlement énonce un certain nombre de conditions à remplir pour que la demande d’avis consultatif sur une question juridique soit recevable. D’abord, il faut un accord international c’est-à-dire un traité au sens de la Convention de Vienne sur le droit des traités de 1969. Ensuite, l’accord en question doit se rapporter aux buts de la Convention. On a évoqué plus haut quelques aspects saillants des buts de la Convention. Cette condition apparaît comme une nécessité logique. Après, il faut que l’accord international prévoit expressément qu’une demande d’un tel avis est soumise au Tribunal. Cette condition est difficile à remplir dans la mesure où aucun accord international ne la prévoit ; soit parce que les accords sont préexistants ou antérieurs au Règlement du Tribunal, soit encore parce que les Etats ne pouvaient pas s’imaginer que la clause attributive de compétence serait une création d’un organe qu’ils ont institués. Il suffit de se reporter aux clauses de règlement des différends, aux clauses de juridiction pour s’en rendre compte. Cette condition risque de rendre l’article 138 simplement inapplicable86. Par ailleurs, l’avis consultatif doit porter sur une question juridique. L’esprit et les méthodes très politiques qui prévalent dans les organisations internationales posent le problème de la conciliation de la fonction consultative avec le caractère essentiellement judiciaire du Tribunal. Donc, formellement, lorsqu’une question n’est pas purement juridique, elle ne peut faire l’objet d’une demande d’avis. Il faudra s’employer à ne retenir que les aspects juridiques per se d’une question ; ce qui est une tâche peu aisée. Les circonstances qui entourent la question juridique devront – peut-être – être éludées. Ce qui pose le problème de la liberté de la juridiction à l’égard de la question à elle posée. Il y a enfin une condition implicite liée au champ d’application de la compétence consultative. Elle a trait au régime international des fonds marins et aux activités menées dans la Zone. Dans ces domaines, la Chambre pour le règlement des différends relatifs aux fonds marins a une compétence exclusive87. Les règles applicables aux procédures consultatives devant la Chambres des différends relatifs aux fonds marins88 s’appliquent mutatis mutandis aux

86  Voir les dispositions relatives au règlement des différends dans les matières du droit de la mer. Voir le site www.un.org/DOALOS. 87  Voir articles 186 et 187 de la Convention, article 14 du Statut du Tribunal et article 130 du Règlement du Tribunal. 88  C’est-à-dire les articles 130 à 137 du Règlement du Tribunal.

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procédures consultatives devant le Tribunal plénier.89 Si le régime de la procédure consultative devant la Chambre pour le règlement des différends relatifs aux fonds marins est très clair, celui relatif au Tribunal plénier recèle des incertitudes qui seront sans doute levé à mesure que le Tribunal connaîtra des demandes d’avis consultatifs. A la première occasion, il faudra interpréter les textes dans le sens de leur toilettage, de façon à compéter la clause attributive de compétence, constituée par le paragraphe 1 de l’article 138 du Règlement, sur un certain nombre de points. D’abord, il faudra reconnaître un statut juridique à la Réunion des Etats Parties de façon à lui faire jouer un rôle. Ensuite, il faudra créer un mécanisme d’habilitation ou d’autorisation par la Réunion des Etats Parties et qui définisse ses relations avec les organes institués par la Convention : Commission des limites du Plateau continental, Tribunal international du droit de la mer ; mais également d’autres organisations internationales agissant dans des domaines se rapportant aux buts de la Convention. Après, il faudra penser à identifier lesdites organisations internationales et en particulier les Organisation régionales de gestion des pêches qui peuvent se révéler comme des clients potentiels de la procédure consultative devant le Tribunal. Enfin, il faudra progressivement préciser les matières sur lesquelles les avis de l’article 138 doivent porter, en indiquant les règles générales relatives au processus de décision et la méthode de traitement de la ‘question juridique’90. La matière est manifestement demanderesse en règles. Le Tribunal a besoin de plusieurs demandes d’avis pour fixer progressivement le régime de sa fonction consultative en formation plénière. Celle-ci peut s’avérer comme un mécanisme très utile dans ce monde en mutation rapide. Comme le fait remarquer le Juge José Luis Jesus as the international community faces new challenger in ocean activities, such as piracy and armed robbery, advisory proceedings before the Tribunal on legal questions concerning the application and interpretation of provisions of the Convention may prove to be a useful tool to States.91 De nos jours, d’importantes et difficiles questions reviennent devant l’actualité et qui pouvaient justifier le recours à la procédure consultative. Il suffit de 89  Article 138, paragraphe 3, du Règlement du Tribunal. 90  La « question juridique » est formulée de façon très vague comparée à ce que l’on trouve à l’article 96, paragraphe 2 de la Charte des Nations Unies. 91  ITLOS, 12 Yearbook (Leiden/Boston : Martinus Nijhoff, 2008), 258 ; para. 9.

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penser au statut juridique des îles et rocks, à la protection et à la préservation de l’environnement marin sans parler de la pêche INN, la pêche hauturière ou les problèmes relatifs à la responsabilité de l’Etat du Pavillon. Il y a là matière pour des avis du Tribunal. Le 28 mars 2013, une demande d’avis consultatif a été soumise au Tribunal international du droit de la mer en formation plénière par la Commission sous-régionale des pêches (CSRP)92. La CSRP, dont le siège est à Dakar (Sénégal), est composée de sept Etats-membres : Cap-Vert, Gambie, Guinée, Guinée-Bissau, Mauritanie, Sénégal et Sierra Leone. Par une résolution93 adoptée au cours de sa quatorzième session extraordinaire, la Conférence des Ministres de la CSRP a habilité le Secrétaire permanent de la CSRP à : saisir le Tribunal international du droit de la mer [. . .] aux fins de rendre un avis consultatif sur les questions suivantes : 1.

Quelles sont les obligations de l’Etat du pavillon en cas de pêche illicite, non déclarée, non réglementée (INN) exercée à l’intérieur de la Zone Economique Exclusive des Etats tiers ? 2. Dans quelle mesure l’Etat du pavillon peut-il être tenu pour responsable de la pêche INN pratiquée par les navires battant son pavillon ? 3. Une organisation internationale détentrice de licences de pêche peutelle être tenue pour responsable des violations de la législation en matière de pêche de l’Etat côtier par les bateaux de pêche bénéficiant desdites licences ? 4. Quels sont les droits et obligations de l’Etat côtier pour assurer la gestion durable des stocks partagés et des stocks d’intérêt commun, en particulier ceux des thonidés et des petits pélagiques ? Cette résolution a été adoptée conformément à l’article 33 de la Convention du 8 juin 2012 relative à la détermination des conditions minimales d’accès et d’exploitation des ressources halieutiques à l’intérieur des zones maritimes sous juridiction des Etats membres de la Commission sous-régionale des pêches (CCMA), selon lequel la Conférence des Ministres peut habiliter le Secrétaire permanent de la CSRP à porter une question juridique spécifique

92  Voir ITLOS/Press 190 du 28 mars 2013. 93  Résolution du 27 mars 2013, No. 437CSRP/SP portant « demande d’avis consultatif », adoptée à la quatorzième session extraordinaire (25-29 mars 2013).

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devant le Tribunal pour avis consultatif 94. Par lettre du 27 mars 2013, le Secrétaire permanent de la CSRP, M. Kane Ciré Amadou, a transmis la demande d’avis consultatif au Président du Tribunal. La demande d’avis consultatif a été inscrite au rôle des affaires du Tribunal international du droit de la mer en tant qu’affaire no 21. Par note verbale du 8 avril 2013, le Greffier a notifié la demande d’avis consultatif à tous les Etats Parties à la Convention des Nations Unies sur le droit de la mer conformément à l’article 133, paragraphe 1, du Règlement du Tribunal95. Le Tribunal a décidé, conformément à l’article 133, paragraphe 2, de son Règlement, que la CSRP et les organisations intergouvernementales96 sont considérées susceptibles de fournir des informations sur les questions soumises au Tribunal pour avis consultatif. Le Tribunal a invité97 les Etats Parties à la Convention, la CSRP et les autres organisations intergouvernementales à présenter des exposés écrits sur les questions soumises au Tribunal pour avis consultatif, conformément à l’article 133, paragraphe 3, du Règlement. Le Tribunal a fixé98 au 29 novembre 2013 la date d’expiration du délai pour la présentation au Tribunal des exposés écrits, conformément à l’article 133, paragraphe 3, de son Règlement et il a enfin décidé99 qu’une procédure orale aura lieu conformément à l’article 133, paragraphe 4. Les questions posées au Tribunal sont l’objet de préoccupation dans toutes les parties du monde et en particulier en Afrique de l’Ouest100 en plus des aspects juridiques très importants qu’elles soulèvent.

94  L’article 33 de la CCMA du 8 juin 2012 dispose : « La Conférence des Ministres de la CSRP peut habiliter le Secrétaire Permanent de la SCRP à porter une question juridique déterminée devant le Tribunal international du droit de la mer pour avis consultatif ». 95  Voir l’Ordonnance du Tribunal du 24 mai 2013 portant Demande d’Avis Consultatif soumise par la Commission Sous-Régionale des Pêches. 96  Voir la liste à l’annexe de l’Ordonnance précitée du 24 mai 2013. 97  Id. 98  Id. 99  Id. 100  Voir Tafsir Malick Ndiaye, « Illegal, Unreported and Unregulated Fishing : Responses in General in West Africa », 10 Chinese Journal of International Law (2011) : 373-405, available at http://chinesejil.oxfordjournals.org.

PART 11 Dispute Settlement Procedures and Unsettled Disputes

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Chapter 37

The Terra Nullius Requirement in the Doctrine of Effective Occupation: A Case Study Bing Bing Jia The topic arises from an interesting feature of the dispute between China and Japan with regard to the title to a group of small islets in the East China Sea, known as the Diaoyu Islands in China and the Senkaku Islands in Japan.1 While the situation surrounding the group has given rise to international attention and debate on and off,2 it will attract attention after China presents its submission, during the coming weeks, on the outer limits of its continental shelf under the East China Sea to the Commission on the Limits of the Continental Shelf, established under the United Nations Convention on the Law of the Sea, of 1982 (UNCLOS).3 The effect of this group upon any delimitation between 1  Several names have been given the group over the years, including “Diaoyu Dao and its affiliated islands”, as used in the communication by the Chinese Government to the UN SecretaryGeneral in December 2012, depositing with the latter a Chart of the baselines drawn on the islands: http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/mzn_s/ mzn89ef.pdf. Other names may be seen in the literature cited in this paper. 2  A steady stream of publications has been with us ever since 1971: Toshio Okuhara, “The Territorial Sovereignty over the Senkaku Islands and Problems on the Surrounding Continental Shelf”, 15 Japanese Annual of International Law, issue 97 (1971); Tao Cheng, “The Sino-Japanese Dispute over eth Tiao-yu-tai (Senkaku) Islands and the Law of Territorial Acquisition”, 14 Virginia Journal of International Law, issue 221 (1974); Hungdah Chiu, “An Analysis of the Sino-Japanese Dispute over the T’iaoyutai Islets (Senkaku Gunto)”, 15 Chinese Taiwan Yearbook of International Law and Affairs, issue 9 (1996–1997); Yoshiro Matsui, “International Law of Territorial Acquisition and the Dispute over the Senkaku (Diaoyu) Islands”, 40 Japanese Annual of International Law, issue 3 (1997); Steven Wei Su, “The Territorial Dispute over the Tiaoyu/Senkaku Islands: An Update”, 36 Ocean Development and International Law, issue 45 (2005). A useful and more expansive account of the dispute may be found in Unryu Suganuma, “Historical Justificaiton of Sovereign Right over Territorial Space of the Diaoyu/Senkaku Islands: Irredentism and Sino-Japanese Relations” (PhD Thesis, Graduate School of Syracuse University, 1996) supervised by none other than Professor Marwyn Samuels. Official positions are to be found in statements published by the Governments of China and Japan in recent years: see Section A, below. 3  On 14 Dec. 2012, China filed with the Commission its “partial submission concerning the outer limits of the continental shelf beyond 200 nautical miles in part of the East China Sea”,

© koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004283787_038

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China and Japan of their overlapping continental shelf and the exclusive economic zone (EEZ) claims is plain to see, even if the dispute between Japan and China is one of ownership of the group.4 The basic argument of Japan has been that the group of islets, known in Chinese as the Diaoyu Islands, and in Japanese as the Sensaku Islands, was discovered towards the end of the 19th century by Japan, when it was deemed terra nullius.5 The question is, however, whether the law of occupation at the time required a positive finding of a terra nullius, as a matter of obligation, and if so, to what extent a claimant State had to fulfill it. Was it required, for instance, to make a public announcement of that finding to other States, or alternatively, was it subsumed in the obligation to display sovereign authority openly, publicly and peacefully? Otherwise, it could give rise to a highly volatile situation where any State may simply harbour the intention to take over a piece of outlying land of another State and then take it over secretly, while claiming afterwards that the take-over has been endorsed by international law, without giving the other affected country time or occasion to register its disagreement. Moreover, the effect of such a secret act could seriously undermine the law of territorial acquisition if the State taking it disregards completely the earlier title of the other State’s, against which, it is thought, no amount of effective control on the part of the former could establish a competing claim to sovereignty on the basis of the doctrine of occupation, unless the whole exercise of taking over the land is pursued in accordance with another mode of acquisition, prescription.6 There, however, as the discussion below will show, the doctrine of estoppel may become relevant by foreclosing the venue for resorting to new titles.

available at: http://www.un.org/Depts/los/clcs_new/submissions_files/submission_chn_ 63_2012.htm. 4  Cf. Victor Prescott & Clive Schofield, “Undelimited Maritime Boundaries of the Asian Rim in the Pacific Ocean”, Maritime Briefing, vol. 3, Issue 1 (2001): 19–25; Steven Wei Su, “The Tiaoyu Islands and Their Possible Effect on the Maritime Boundary Delimitation between China and Japan”, 3 Chinese Journal of International Law, issue 385 (2004): 402–419; HaiWen Zhang, “Legal Issues concerning the East China Sea Delimitation—A Chinese Perspective on the Sino-Japanese the [sic] East China Sea Dispute”, 40 Japanese Yearbook of International Law, issue 119 (2008): 123 and 139. Also see Shigeki Sakamoto, “Japan-China Dispute over Maritime Boundary Delimitation-From a Japanese Perspective”, 40 Japanese Yearbook of International Law, issue 98 (2008): 111. 5  Section A, below. 6  Ian Brownlie, Principles of Public International Law (Oxford: Oxford University Press, 2008), 146–151.

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Relevant Points of the Background

The cluster of islets is situated in the East China Sea, about 95 nautical miles to the northeast of Taiwan, China, approximately 80 nautical miles to the northwest of Iriomote Island of the Okinawa prefecture of Japan, and some 180 nautical miles to the east of the coast of Fujian Province, China.7 There are over 70 islets in the group,8 but the eight main ones are the most talked about.9 While mostly uninhabited for long, it is believed that there is little difficulty for the islands in the group to meet the requirement of Article 121(2), UNCLOS, namely, islands capable of generating maritime zones such as the EEZ.10 The heightening of the tension regarding the sovereignty over the group has been a recurrent event in the past decades.11 The latest wave of tension occurred in September 2012, when the nationalization of some islets of the group was announced by the Japanese Government, leading to strong protests by and in China on an unprecedented scale.12 The tension has not relented, with the risk for military conflict seemingly upstaging the diplomatic row. It is, however, proposed to look at the case from a rather limited point of view as to whether this case met the requirements of international law at the time of Japan’s decision to take control of the islands in 1895. The basic position of China has been this.13 The group of islands and other insular features of the group have always been part of Chinese territory since 7 

China Institute of Marine Affairs, “Chinese Territory: Diaoyu Dao Islands”, in State Oceanic Administration, China (Beijing: Oceanic Publishers, 2012), 2. 8  Id., 58–61 (names of the islands, islets, and rocks as approved by the State Council, and published by the Ministry of Civil Affairs and the State Oceanic Administration, China, in March 2012). 9  Victor Prescott & Clive Schofield, “Undelimited Maritime Boundaries of the Asian Rim in the Pacific Ocean”, Maritime Briefing, vol. 3, Issue 1 (2001): 20. 10  Id.: 22. China promulgated base points for drawing straight baselines for seven of the islands in the group on 10 Sept. 2012, which information is available at: http://www .un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/mzn_s/mzn89ef.pdf. 11  Cf. Carlos Ramos-Mrosovsky, “International Law’s Unhelpful Role in the Senkaku Islands”, 29 The University of Pennsylvania Journal of International Law, issue 903 (2008): 918–922. 12  The Guardian, “Anti-Japan protests in China grow over disputed islands—in pictures”, available at: http://www.guardian.co.uk/world/gallery/2012/sep/18/anti-japan-protestschina-islands-in-pictures. 13  The State Council Information Office, China, The Diaoyu Islands are Inherently Chinese Territory (White Paper), Sept. 2012, available at: http://www.scio.gov.cn/zfbps/ ndhf/2012/201210/t1225272.htm (White Paper hereinafter). Also see remarks by the Spokesperson of the Chinese Foreign Ministry on 30 May 2013, available at: http://www .fmprc.gov.cn/eng/xwfw/s2510/2511/t1046006.shtml. Also see Regular Press Conference

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ancient times, and the whole group is attached to the Taiwan Island, China.14 The group was taken secretly by Japan in 1895 at a time after the two countries fought a war, which resulted in the Shimonoseki Treaty that saw China ceding to Japan the Taiwan Island and other appurtenant islands, the latter of which included the Diaoyu Islands.15 When the group was taken by Japan at that time, however, it was no res nullius.16 The basic position of Japan has been this.17 The group of islands was not concerned in the Shimonoseki Treaty of 1895, but belonged to Japan before the treaty by virtue of Japan’s incorporation of them as terra nullius by a Cabinet decision taken on 14 January 1895, after finding them to be uninhabited and “without any trace of control by China”.18 The two differing positions raise the factual question central to this paper, namely, whether, prior to or in 1895, the group of islands belonged to China before it was snatched away by Japan on the ground that it was in fact res nullius at the time. Given that Japan has asserted that it incorporated the group in 1895 following careful surveys, it might be wondered whether that was simply a nominal exercise without intending to consider the reality, namely, there was a Chinese title in existence.19 Indeed, China has always been aware of the covert nature of Japan’s incorporation of the island group.20

The Law of Occupation of the Late 19th Century: Which System?

The applicable law in respect of the Diaoyu Islands may be two-fold. On the one hand, there was, in the late 19th century, a remnant of the Chinese-dominated by the Chinese Foreign Ministry’s Spokesperson on 30 May 2013, available at: http://www .fmprc.gov.cn/eng/xwfw/s2510/2511/t1046006.shtml. 14  Id., Part I. 15  Id., Part II, sect. 2. 16  Id., Part IV. 17  Japanese Foreign Ministry, Japan’s Basic Position on the Senkaku Islands and Facts (March 2013), available at: http://www.mofa.go.jp/region/asia-paci/senkaku/pdfs/ senkaku_en.pdf). 18  Japanese Foreign Ministry, Japan’s Basic Position on the Senkaku Islands and Facts (March 2013), “Gist of Japan’s Position”, No. (4). An earlier statement was made by the Japanese Foreign Ministry on 8 March 1972, quoted in full in Hungdah Chiu, op. cit., 17–18. 19  There is also the interesting view, not to be discussed here, that the decision of 1895 was invalid in Japanese law: Unryu Suganuma, op. cit., 199. This paper takes that decision as a claim to title, in order to see if it could become the basis for a competing title to that held by China. 20  White Paper, Part II (1).

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order that had by then persisted for many centuries (the first system).21 On the other, there was the European-based international law stretching its influence to this part of the world (the second system). Under the first system, there is no doubt that China could comfortably rely on a historic title over this group of islands that simply has had no match. Historic title, a term of modern international law or the second system, can also be used without difficulty to reflect this fact, because its successful assertion depends solely upon historic facts of control and of a lack of competing claims throughout the period of control. The two conditions cannot be readily met by many countries embroiled in territorial disputes with their neighbours, and yet, they are understood and acceptable to all of them as something that makes good sense, where there is simply no other title leading to settlement. The evidence of the continuity of Chinese control, in both nominal and substantive form, is almost one-sided as far as is concerned the Chinese dominion over the Diaoyu Islands during the centuries up to 1895.22 It follows that that singular fact, when viewed in light of modern international law (the second system), is such that there is no applicability of the view of the International Court of Justice (ICJ) as pronounced in Minquiers and Ecrehos,23 to the effect that a replacement has to be found in modern conditions for a feudal title to subsist, the truth of which has become uncertain and controversial in light of the evidence produced by the parties to the case. In the present case, the ancient title continued without abatement in favour of China, whereas there had never been a parallel title vested in Japan before its decision in 1895 to incorporate the island group.24 There is, therefore, no need to find a replacement, since Japan’s claim in reliance on occupation is purported to establish an original title.25 For Japan, the singular event in January 1895 was what started its association with the dispute over the ownership of the Diaoyu Islands.26 But no competing claims of sovereignty had theretofore existed on the part of Japan, or Ryukyu before its annexation by Japan in 1879, and this point is 21  Tao Cheng, op. cit., 253. 22  Statement of the Ministry of Foreign Affairs of the People’s Republic of China, 30 Dec. 1971, quoted in Hungdah Chiu, op. cit., 19–23. 23  Minquiers and Ecrehos (U.K./France), Judgment of 14 Nov. 1953, ICJ Reports 1953, 47, at 56. 24  Japan, therefore, could only try to discredit the evidence relied on by China in support of its title in this regard: Japanese Foreign Ministry, Japan’s Basic Position on the Senkaku Islands and Facts (March 2013), (4). 25  Western Sahara, 1975 I.C.J. 12, 39 (Oct. 16). 26  “The Basic View of the Ministry of Foreign Affairs on the Senkaku Islands”, quoted in Yoshiro Matsui, op. cit., 16. Also see, Japanese Foreign Ministry, Japan’s Basic Position on the Senkaku Islands and Facts.

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known to Japanese lawyers.27 The fact that, with regard to this group of islands, Japan has consistently relied on the doctrine of occupation of terra nullius in its official statements, speaks volumes by itself. Moreover, any trace of a territorial ambition on the part of the Ryukyu Kingdom before its annexation by Japan would be vitiated by its tributary status in relation to the Imperial Court of China. Indeed, even when examined in light of modern international law, i.e. the second system, the case of the ownership of the Diaoyu Islands is one that pits a superior, historical claim by China against no claim by Japan. Be so as it may, the second system, as Japan’s position seeks to show, may afford it with a ground to legitimize its possession of the Diaoyu Islands since January 1895. However, this ground cannot hold water in international law any more than Japan’s vitiation of the effect of the Chinese historic title under either the first or the second system. For explanation, several points present themselves. As both parties to the Island of Palmas arbitration recognized, the international law of discovery and acquisition of uninhabited regions had undergone profound changes between the end of the Middle Ages and the end of the 19th century.28 The practice at the time, it may be said, was not necessarily globally uniform, due to the stage at which international law as a whole reached.29 The reason, in part, has to do with the presence of the first system of law, as indicated above. The applicable law in territorial cases of this type, before the merger of the first system with the second in about 1945, would be a difficult question for both parties to the dispute over the Diaoyu Islands, as well as for international lawyers in general. It is arguable, however, that the international law of the late 19th century could become one of the benchmarks for the resolution of the dispute in question. The tendency of international tribunals in past cases has been that of applying the inter-temporal law. Without discarding alternative rules of settlement, this paper suggests that, if that law is the one in the light of which the present case is to be viewed, there is need to obtain a clear understanding of it, but that the conclusion may still be in favour of the Chinese title. Prior to the Island of Palmas arbitration, there was a version of the law on acquisition of territory that commanded strong support in practice and

27  Yoshiro Matsui, op. cit., 15. 28  Island of Palmas Case, Award of April 1928, II UNRIAA 829, 845. 29  Jia Bing Bing, “A Synthesis of the Notion of Sovereignty and the Ideal of the Rule of Law: Reflections on the Contemporary Chinese Approach to International Law”, 53 German Yearbook of International Law, issue 11 (2010): 26–27.

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literature. In the Guiana Boundary case, the sole arbitrator, King of Italy, pronounced that to acquire the sovereignty of regions which are not in the dominion of any State, it is indispensable that the occupation be effected in the name of the State which intends to acquire the sovereignty of those regions . . .30 The arbitrator, while dismissing the sufficiency of discovery alone for the establishment of a title to a terra nullius, held that the occupation in question must be by way of “effective, uninterrupted, and permanent possession”, as opposed to “a simple reaffirmation of rights of sovereignty or a manifest intention to render the occupation effective”.31 As Moore stated, Title by occupation is gained by the discovery, use and settlement of territory not occupied by a civilized power. Discovery gives only an inchoate title, which must be confirmed by use or settlement.32 This view was echoed by other eminent writers at the time.33 The international law of occupation, therefore, seemed to have stated its content in clear rules. However, the view has by no means been uniformly followed in judicial practice or doctrine. In Eastern Greenland, the Permanent Court of International Justice broadened the scope of this view considerably, by stating that It is impossible to read the records of the decisions in cases as to territorial sovereignty without observing that in many cases the tribunal has been satisfied with very little in the way of the actual exercise of sovereign rights, provided that the other State could not make out a superior claim. This is particularly true in the case of claims to sovereignty over areas in thinly populated or unsettled countries.34 30  Award of His Majesty the King of Italy with regard to the Boundary between the Colony of British Giana and the United States of Brazil, 6 June 1904, XI UNRIAA, 21. 31  Award of His Majesty the King of Italy with regard to the Boundary between the Colony of British Giana and the United States of Brazil, 6 June 1904, XI UNRIAA, 21. 32  John Bassett Moore, A Digest of International Law, vol. i (Washington: Government Printing Office, 1906), 258. 33  William Hall, A Treatise of International Law, ed. A. Pearce Higgins (Oxford: Clarendon Press, 1924), 126–127. 34  Legal Status of Eastern Greenland (Denmark v. Norway), 1933, P.C.I.J. (ser. A/B) No. 53, 46.

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Even at that time, intermittent control by a State was deemed sufficient, as long as no other State could pitch a superior claim. The Chinese control over the Diaoyu Islands for some 500 years, after discovering the group,35 would establish a good title erga omnes on the strength of that statement by the Permanent Court. This can certainly be supported by more than just that case. Indeed, given the period of Chinese dominance in respect of the Diaoyu Islands, there is also the possibility for symbolic annexation to be invoked in support of the Chinese title prior to 1895. As in the arbitration of Mexico v. France,36 if a territory was completely uninhabited and “from the first moment when the occupying State made its appearance there, was at the absolute disposition of that state, the possession of the territory must from that moment be completed”.37 The records by the investiture envoys from the Imperial Court of China to Ryukyu all marked the routes they took from the Chinese domain to the dominion of Ryukyu, and their sightings of the island group were accompanied by fairly detailed descriptions of the natural conditions of the group and the surrounding sea areas (including even some accounts of the Okinawa Trough). Without surveys, it would not be possible to provide those descriptions. Further, the descriptions contained an account of delimitation of the respective spheres of control for the Imperial Court of China and the Ryukyu Kingdom. It is also noteworthy that they referred to the islands by Chinese names that have since been used, right to this day.38 The Japanese name ‘Senkaku Retto’ only appeared in 1900, for the first time and in a scholarly article, and was only used in official document from 1950 onwards.39 The lapse of a considerable time between the Chinese and the Japanese becoming known of the island group cannot be underestimated, and cannot be obviated by simply arguing that sightings of the islands were not up to the standard of modern international law on occupation. That would be beside the point, since that lapse in time shows exactly, and perhaps exclusively, that the existing Chinese title was long established. It should also be mentioned that by the time the change in the law of occupation became pretty widespread in practice, following the Island of Palmas and Eastern Greenland cases, Hyde observed that

35  White Paper, Part I; Tao Cheng, op. cit., 254–259. 36  Island of Clipperton Arbitration (France-Mexico), Arbitral Award of 28 Jan. 1931, 26 AJIL (1932), 390. 37  Id., 1110. 38  Suganuma, above note 2, 202, noting the consistency of Chinese records or documents in using the names given the islands. 39  White Paper, Part II (2). Also see Unryu Suganuma, op. cit., 195–196.

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That modification did not, however, in itself serve to weaken a right of sovereignty acquired as by a taking of possession at a time when such action sufficed to bring it into being, even though the sufficiency thereof might be asserted at a later period when more than a mere taking of possession was regarded as essential for such a purpose. In a word, the mere change of the law did not in itself demolish the value of what had earlier been acquired in pursuance of the law.40 Titles already established would be entitled to protection. Competing titles would have to be justified under international law for their legitimacy. But imperfect titles,41 like Japan’s in respect of the Diaoyu Islands, cannot possibly displace the Chinese title, which had been perfected long before 1895. As Lindley observed, with regard to the relevance of the power of exclusion of other States from a claimed territory, It is, however, generally recognized, from the abstract point of view, that the physical power of exclusion is not an essential element in possession, and, so far as territorial sovereignty is concerned, the mere building of forts  . . . is not by itself either a sufficient compliance with the condition of effective occupation, nor, in general, a necessary part of it.42 That point is very much proved by the Eastern Greenland case.43 The author also pointed to ‘sufficient governmental control’ as the place to look to as the essential point in this context.44 So the law of discovery and occupation has not been without uncertainty in its application. It is plain, however, that the law is to be applied in the light of the circumstances of each concrete case. It is no surprise, therefore, that, following his study of the four leading cases of Island of Palmas, Eastern Greenland, Clipperton, and Minquiers and Ecrehos, Tao Cheng concluded that . . . all four cases expressly admit that the manifestation of territorial sovereignty may assume different forms according to the conditions of the 40  Charles Hyde, International Law chiefly as Interpreted and Applied by the United States, vol. 1, (Boston: Little, Brown & Co., 1951), 328–329. 41  See Section C, below. 42  Mark F. Lindley, The Acquisition and Government of Backward Territory in International Law (London: Longmans, Green & Co., 1926), 140. 43  Legal Status of Eastern Greenland (Denmark v. Norway), 1933, P.C.I.J. (ser. A/B) No. 53, 30–33, 62–64. 44  Mark F. Lindley, op. cit., 141.

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territory involved. Territories like uninhabited islands with little economic value, or otherwise not ‘capable of appropriation’, may be acquired without satisfying the conditions of ‘effective occupation’ in the classic sense.45 Even supposing the law is to be applied in the present case as stated by the Island of Palmas arbitration, among others, there are problems with Japan’s position. Evidence is commonly known that the Japanese Government at the time was well aware of the presence of China’s interest in this group of islands,46 and that the decision by its Cabinet to incorporate the group within Japanese territory was secretly taken.47 The competing claim by Japan through occupation, therefore, suffered at its birth a clear deficit in legitimacy, to the tune that the claim was legally imperfect and has never been cured of that problem. This paper will look at the accepted version of the law of discovery and occupation from this standpoint.

Obligations Imposed at the Relevant Time by International Law

The problem under scrutiny is as to whether, in the 1890s, there were clearly defined, positive obligations under international law in respect of the occupation of a terra nullius. The Island of Palmas Award has one criterion that is as concise as it is helpful for the present purposes, namely, whether the island in question “at the moment of the conclusion and coming into force of the Treaty of Paris formed a part of the Spanish or Netherlands territory”.48 As an objective exercise, an authority entrusted to make a finding on such a question would have to consider all relevant evidence. It is submitted that that is also an exercise inescapable for the occupying party to perform, and, in the present context, Japan was well aware of this during the period of 1884–1895. However, while the finding may be made in various ways, the way in which Japan has made it appears to be problematic for several reasons. 45  Tao Cheng, op. cit., 239. 46  E.g. Ghislain Poissonnier et Pierre Osseland, “À qui appartiennent les îles Senkaku/ Diaoyu?”, 135 Journal de Droit International, nº 467 (Clunet) (2008): 476–477. 47  White Paper, Part II (1). Also see Toshio Okuhara, op. cit., 97–98; Tao Cheng, op. cit., 248– 250; Hungdah Chiu, op. cit., 21–22; Yoshiro Matsui, op. cit., 17. 48  Island of Palmas Case, Award of April 1928, II UNRIAA 829, 843.

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First, there was a positive obligation to make sure that one was taking possession of a land that was a terra nullius at the time of occupation. It may be recalled that the US failed in the Island of Palmas case to have its claim of sovereignty recognized in the award, because at the time of its taking over of the island, the island belonged to the Netherlands. The arbitrator had this to say: . . . it is not necessary that the display of sovereignty should go back to a very far distant period. It may suffice that such display existed in 1898, and had already existed as continuous and peaceful before that date long enough to enable any Power who might have considered herself as possessing sovereignty over the island, or having a claim to sovereignty, to have, according to local conditions, a reasonable possibility for ascertaining the existence of a state of things contrary to her real or alleged rights.49 This statement shows two things. First, while the display of sovereign acts must exist at the critical date of transfer of sovereignty, the display had also been existing prior thereto, which in the circumstances of the case would be sufficient to establish a title on that basis.50 That title, in the instant case, rested with the Netherlands. Secondly, the US, as the new comer on the scene, in desiring to assert its own title to the island, should have ‘a reasonable possibility’ to ascertain the existence of “a state of things contrary to her real or alleged rights”.51 The wording of the statement became distinctly weakened in relation to the “possibility” for the US to ascertain the situation. Whether it did go on to ascertain was not required. In the Clipperton arbitration, the arbitrator noted pointedly that by its acts, France in 1858 “made known in a clear and precise manner, her intention to consider the island as her territory”.52 France in that case was deemed to have “provoked that notoriety by publishing the said act in the manner above indicated”.53 The rule of notification, dismissed by the arbitrator as an obligation except under Article 34 of the Act of Berlin, 1885, before he made the preceding statement, was echoed sometimes by writers with regard to earlier

49  Id., 867. 50  Id., 868. 51  Hall also saw this notification as a condition for a title based in occupation to be deemed good: William Hall, op. cit., 127. 52  Island of Clipperton Arbitration (France-Mexico), Arbitral Award of 28 Jan. 1931, 26 AJIL (1932), 394. 53  Id.

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practice,54 but was probably displaced by the Island of Palmas and Clipperton cases, as noted by writers of authority.55 In general, there is no question as to the obligation to make sure the land in question was terra nullius at the time of occupation (the first obligation). There may be a further obligation for the occupant to make its control of the land in question publicly known (the second obligation). This is the condition of acquisition of sovereignty by way of “continuous and peaceful display of territorial sovereignty (peaceful in relation to other States)”.56 Of course, the condition was described in relation to what would constitute a case of prescription, as correctly noted by the arbitrator in the Island of Palmas case. In principle, a continued and open display of sovereign authority itself subsumes any requirement to make public the finding of a terra nullius, as distinct from the first obligation. Therefore, there may be no need for a third obligation to proclaim a terra nullius. But the point here to be made is that Japan’s claim fails to meet the first obligation: to make sure the Diaoyu Islands were genuine terrae nullius, and that it in fact flouted the obligation in its treatment of the issue of sovereignty over the island group. Given the restricted geographical context of the present case, it is imperative that Japan found out the role of China before it grabbed, with eagerness, the Diaoyu Islands at the heel of the Sino-Japanese war of 1894. It did not fulfill the obligation to make sure of the status of the Diaoyu Islands as a terra nullius, since, in 1895, it simply treated the situation as it wished for, despite that its high officials had clear knowledge of China’s interest in the group.57 Under the version of international law as professed in the Island of Palmas case and the others, it is, therefore, very doubtful that the action of Japan in January 1895 could be seen as one based in the doctrine of occupation. If the incorporation of the islands into Japanese territory in 1895 was decided by the Japanese Government despite its knowledge of a rather obvious Chinese title, occupation of terra nullius was completely misplaced as a legal ground to justify its position then as now. However, a new claim based on prescription would unravel a public position consistently held by Japan, which has by now continued for more than 40 years since the official statement of 8 March 1972. In fact, by relying on the doctrine of occupation all along, Japan has simply foreclosed recourse to other 54  Charles Hyde, op. cit., 328. 55  Robert Jennings, The Acquisition of Territory in International Law (Manchester University Press, 1963), 38–39. 56  White Paper, Part I; Tao Cheng, op. cit., 839. 57  See Section B, above. Also see Tao Cheng, op. cit., 253–260; White Paper, Part I.

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titles, if any, to the extent that it has been estopped from changing its tack since 1972. Secondly, it follows from the preceding point that, if the obligation to proclaim the occupation of terra nullius was not clearly stated under the international law of the late 19th century for the application of the mode of occupation, it is not surprising that that body of law equally did not recognize any time limit to the bringing of the legal issue of sovereignty by other countries concerned.58 It is interesting to note that the legal dispute in Western Sahara arose only in 1974, even though the Spanish colonization of the territory in question took place in 1884.59 The ICJ still proceeded to deal with the question subject to its advisory jurisdiction, by holding that since the area of Western Sahara was not terra nullius in 1884, no title based on the colonization, which was basically equivalent to occupation in that case, ever existed.60 This point is of course more related to the question of prescription than others, as it must come into play where the mode of occupation is proved to be unhelpful, as is for Japan in the case of the Diaoyu Islands.61 This lack of specific time limit for other States concerned to raise challenge has been a counter balance to the otherwise unsatisfactory law of occupation that did not require notification to those States by the occupier, genuine or pretended. It may be added immediately that this latitude in allowing challenges to be mounted by other States after some time does not exist any longer where there is clear proof of recognition or acquiescence on their part. Thirdly, besides the defect mentioned in the first preceding point, that Japan did not fulfill the first obligation in determining the terra nullius status of the Diaoyu Islands between 1884–1895, Japan’s claim on the basis of occupation would still fail on account of another problem. The claim was actually based on a secret decision by the Cabinet after check-ups of some of the islands in 1885.62 This serves to show that the decision was deliberately taken in contravention of the law of occupation as generally recognized at the time, that continuous and peaceful display of sovereign authority would have to be ‘open and public’.63 That decision was the very official act to incorporate the island group in Japanese territory, which was supposed to start a line of official acts 58  59  60  61 

See Section D, below. Also see Robert Jennings, op. cit., 21. Yoshiro Matsui, op. cit., para. 36. Id. paras. 79–81. The two notions have much in common and are ‘frequently blurred’: Robert Jennings, op. cit., 23. 62  White Paper, Part II (1); Yoshiro Matsui, op. cit., 18. 63  Island of Palmas Case, Award of April 1928, II UNRIAA 829, 868.

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as required by the doctrine of occupation, and yet, it was a secret exercise. The reason is clear that, given the circumstances, only secrecy could shield Japan from the diplomatic storm that would otherwise be generated in its relations with China, and which would instantly scupper its attempt to take possession of the Diaoyu Islands. This point regarding the secrecy of the decision has been well documented,64 and it is not proposed to recount it. It suffices to say that the secrecy displayed by Japan in about 1895 when deciding to incorporate the Diaoyu Islands will surely put a dent to even an perfect title of occupation— which Japan has never possessed anyway in the present case. Fourthly, for argument’s sake, to salvage the claim based on occupation might be feasible were it possible to argue that China had abandoned the Diaoyu Islands in the period of 1884–1895, if not before. However, it is known that when terra nullius is said to occur due to lapse of authority or abandonment, there must be a showing of “definite renunciation” on the part of the abandoning state.65 Indeed, international law has not recognized any rule that it may be presumed by any State that another country concerned in a territorial dispute has abandoned its claim by not reacting for some time when the former occupied the land in question on the basis of terra nullius.66 As the Award in the Clipperton case states, There is no reason to suppose that France has subsequently lost her right by derelictio, since she never had the animus of abandoning the island, and the fact that she has not exercised he authority there in a positive manner does not imply the forfeiture of an acquisition already definitely perfected.67 China has never renounced, openly or otherwise, its title to the Diaoyu Islands, which it has regarded as ‘historically, geographically, and legally’ belonging to it.68 The succession of events starting with the Sino-Japanese War from 1894 until the 1971–1972 exchanges between them regarding the sovereignty over 64  Hungdah Chiu, op. cit., 21–22. 65  See Island of Clipperton Arbitration (France-Mexico), Arbitral Award of 28 Jan. 1931, 26 AJIL (1932), 47; see also Land and Maritime Boundary between Cameroon and Nigeria (Cam. v. Nig.: Eq. Guinea: Intervening), Judgment of 11 Oct. 2002, ICJ Reports 2002, 303, para. 223. Also see Seokwoo Lee, “Territorial Disputes among Japan, China and Taiwan Concerning the Senkaku Islands”, 3 Boundary & Territory Briefing (2002): 23. 66  Ian Brownlie, op. cit., 139. 67  Unryu Suganuma, op. cit., 394. 68  White Paper, Introduction.

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the Diaoyu Islands could only bolster the view that the dispute could not be brought up in the open during that period, with a view for settlement between the only two countries concerned therewith. In any case, it will require a lot to prove the existence of an act of abandonment in those extraordinary circumstances.

The Critical Date

The attention may be switched to another aspect of this topic. At least two critical dates may be recognizable in this case. There is the one of 14 January 1895 when the Japanese Cabinet decided to incorporate the Diaoyu Islands within Japanese territory.69 There is the second one of 1970–1972 when all sides concerned in the islands made public their respective legal positions in official documents.70 As has been discussed above, Japan’s title based on occupation has encountered problems since the beginning, i.e. in 1895, due to the imperfect nature of that title. An imperfect title or rather, a claim to such a title, may be met with a response or disregard, as, in itself, it cannot change the relevant legal situation, let alone displace a good or original title already in existence in favour of another country. For instance, in Island of Palmas, the US claimed a variety of titles in support of its sovereignty over the Island of Palmas to no avail, after they were pitted against the fact that the Netherland had between 1700 and 1906 displayed sovereign authority over the island in a continuous and peaceful manner. The imperfectness of a claimed title such as the one proposed by Japan in the case of the Diaoyu Islands may spare China from making a formal response, because, as the original proprietor of the islands, China has, since the 14th century, never acted in a way that made the islands open to appropriation by Japan in the 19th century. The lapse of time since January 1895 does not render the imperfect title perfect if, as in the case of Japan’s claim to the island group, it has been invariably based on the doctrine of occupation. The second critical date only calls for one brief comment. It was the time when China and Japan crystallised their respective positions in respect of the Diaoyu Islands, and when they let the other side know of it. Between 1945 and 1971, it was not a period in which China acquiesced in the Japanese control 69  Japanese Foreign Ministry, Japan’s Basic Position on the Senkaku Islands and Facts (March 2013), “Gist of Japan’s Position”, No. (4). An earlier statement was made by the Japanese Foreign Ministry on 8 March 1972, quoted in full in Hungdah Chiu, op. cit. 70  Yoshiro Matsui, op. cit., 8.

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of the islands, but one in which neither country could exercise effective control of the islands due to the presence of the US administration of them. The US administration, effected in accordance with the Treaty of Peace of 1951, has had the sole effect of suspending the dispute from being escalated. This is confirmed by the fact that the US has taken no position on the issue of sovereignty over the Diaoyu Islands up to this day.71 Where there are in fact competing claims between China and Japan, internationally recognized uncertainty bodes ill for Japan’s adamant insistence on the non-existence of a territorial dispute in this regard. In addition, the suspension of sovereignty over the Diaoyu Islands between 1945 and 1971 gives rise to another point, namely, it has had no impact upon the sovereignty to the islands vested in China by the international law before and about 1895. In a word, the suspensive effect of that episode froze the issue of sovereignty for the whole period of 1945–1971. Conclusion The conclusion that emerges from the preceding discussion includes several points: 1.

2.

3.

China’s title to the Diaoyu Islands was complete before January 1895 and probably before 1884, when Japanese nationals first showed interest in the islands, and the basis for this title lies either in the Chinese-dominated world order prevalent in the region at the time and during the preceding centuries, or in the international law existent prior to 1895; China’s title was not displaced in 1895 by the Japanese Cabinet’s decision to incorporate the Diaoyu Islands, since the islands were not terrae nullius in 1895, thus unable to be taken by Japan under the doctrine of occupation as recognized by the international law of that time; Japan’s claim based on occupation suffers also from the defect that the claimant not only failed, during the critical period of 1884–1895, to fulfill the obligation under the then international law to make sure of the legal status of the islands in question as terra nullius, but deliberately flouted

71  E.g., Remarks made by Secretary Clinton on 18 January 2013, available at: http://www .state.gov/secretary/rm/2013/01/203050.htm. For an earlier account of this position, see Jean-Marc F. Blanchard, “The U.S. Role in the Sino-Japanese Dispute over the Diaoyu (Senkaku) Islands, 1945–1971”, The China Quarterly, issue 95 (2000): 120.

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5. 6. 7. 8. 9.

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that law in taking the secret decision to incorporate the islands by ignoring an existing Chinese title; the title by occupation as claimed by Japan was clearly imperfect in 1895, and not opposable to the Chinese title referred to above, and no amount of effective control exhibited by Japan after 1895—which, in this case, had been rather minimal for long periods prior to 1971–1972, when the dispute was crystallised—can cure that defect at birth; the international law of occupation did not set a time limit for raising challenge to a title like the one claimed by Japan in the present case; an imperfect title like Japan’s in this case does not require action from China until the latter wishes to, since the imperfect title cannot replace the good and earlier title of China; China has never abandoned its ownership of the islands in question; and the consistency of Japan’s reliance on the doctrine of occupation in respect of the dispute of the Diaoyu Islands has precluded it from invoking another title in this regard. The doctrine of effective occupation, or more frequently, discoveryoccupation, still has problems in its application to a concrete case of territorial dispute, and in spite of generations of effort in clarifying them, the problems have not become less complicated. The value of a settled doctrine for the present purposes is not difficult to understand, as it serves up the legal standards whereby the dispute can be resolved by legal means. As Salmon once said, “were it not for such a rule [—the doctrine of possessory ownership in his context—added by this author], force and fraud would be left to determine all disputes as to possession.”72 Given the nature of the present dispute over the Diaoyu Islands being one of prescription rather than something else, his words still ring true.

72  John W. Salmond, Jurisprudence or the Theory of the Law (London: Stevens and Haynes, 1902; Forgotten Books, 2012), 530.

Chapter 38

United Nations Convention on the Law of the Sea and Provisional Arrangements Relating to Activities in Disputed Maritime Areas Kamal Hossain

Overlapping Claims in Disputed Areas

The global energy situation has intensified activities for exploration of hydrocarbon resources. These activities extend to submarine areas, where overlapping claims in disputed maritime areas are increasingly becoming a problem. In this context the United Nations Convention on the Law of Sea (‘the Convention’) had addressed this problem and a useful framework for dealing with it is provided by Articles 74(3) and 83(3) of the Convention. These provisions were invoked before an arbitral tribunal (‘the Tribunal’) constituted pursuant to Article 287 (and in accordance with Annex VII) of the Convention in a case between Guyana and Suriname (“the Guyana-Suriname case”).1 Arbitration proceedings concerning delimitation of its maritime boundary with Suriname was initiated by Guyana in February 2004. In that case each party had requested the Tribunal to declare that violation of the Convention had taken place. Each party alleged that the other had violated their obligations under Articles 74 and 83 of the Convention to make every effort to enter into provisional arrangements of practical nature and to make every effort not to jeopardise or hamper the reaching of the final delimitation agreement. In its unanimous award a five-member tribunal2 analyzed in some depth the scope of the obligations provided for by Articles 74(3) and 83(3) of the Convention before concluding that each of the parties had violated obligations under these provisions. The analysis in the award and its factual background as set out below from extracts in the Award spell out with clarity a framework which parties faced with the problem of overlapping claims in disputed 1  Guyana v. Suriname, Award, ICGJ 370 (PCA 2007), 17th September 2007, Permanent Court of Arbitration [PCA]. 2  H.E. Judge Dolliver Nelson (Chair), Professor Ivan Shearer, Dr. Kamal Hossain, Professor Thomas M. Franck and Professor Hans Smit.

© koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004283787_039

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maritime areas may invoke to agree on provisional arrangements. Such provisional arrangements “of a practical nature” could prevent conflict and enable work to be carried out while negotiations are being conducted to reach a final delimitation agreement.

The Obligations Provided for by Articles 74(3) and 83(3) of the Convention

Articles 74(3) and 83(3) of the Convention impose two obligations upon States Parties in the context of a boundary dispute concerning the continental shelf and exclusive economic zone respectively. The two obligations simultaneously attempt to promote and limit activities in a disputed maritime area. The first obligation is that, pending a final delimitation, States Parties were required to make “every effort to enter into provisional arrangements of a practical nature.” The second is that the States Parties must, during that period, make “every effort . . . not to jeopardize or hamper the reaching of the final agreement.” Provisional Arrangements of a Practical Nature The first obligation contained in Articles 74(3) and 83(3) is designed to promote interim regimes and practical measures that could pave the way for provisional utilization of disputed areas pending delimitation.3 In the Guyana-Suriname case the Tribunal held that this obligation constituted an implicit acknowledgment of the importance of avoiding the suspension of economic development in a disputed maritime area, as long as such activities do not affect the reaching of a final agreement. In its view, such arrangements promote the realisation of one of the objectives of the Convention, the equitable and efficient utilisation of the resources of the seas and oceans.4 Although the language ‘every effort’ leaves “some room for interpretation by the States concerned, or by any dispute settlement body”,5 the Tribunal held that the language in which the obligation is framed imposes on the Parties a duty to negotiate in good faith. Indeed, the inclusion of the phrase “in a spirit 3  Myron H. Nordquist, ed., United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. II, (Dordrecht: Nijhoff, 1995), 815 (“UNCLOS Commentary”); Rainer Lagoni, “Interim Measures Pending Delimitation Agreements”, 78 Am. J. Int’l L (1984): 345–354. 4  Thomas A. Mensah, “Joint Development Zones as an Alternative Dispute Settlement Approach in Maritime Boundary Delimitation” in Rainer Lagoni & Daniel Vignes, Maritime Delimitation (Leiden: Nijhoff, 2006), 143; UNCLOS, preamble. 5  Virginia Commentary, Vol. II, p. 815.

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of understanding and cooperation” indicates the drafters’ intent to require of the parties a conciliatory approach to negotiations, pursuant to which they would be prepared to make concessions in the pursuit of a provisional arrangement. Such an approach is particularly to be expected of the parties in view of the fact that any provisional arrangements arrived at are by definition temporary and would be without prejudice to the final delimitation.6 There have been a number of examples of arrangements for the joint exploration and exploitation of maritime resources, often referred to as joint development agreements. Joint development has been defined as “the cooperation between States with regard to exploration for and exploitation of certain deposits, fields or accumulations of non-living resources which either extend across a boundary or lie in an area of overlapping claims.”7 Joint exploitation of resources that straddle maritime boundaries has been particularly encouraged by international courts and tribunals. In the Eritrea/ Yemen arbitration, the arbitral tribunal, although no mineral resources had yet been discovered in the disputed waters, wrote that the parties “should give every consideration to the shared or joint or unitised exploitation of any such resources.”8 The ICJ in the North Sea Continental Shelf cases, in addressing the question of the unity of deposits as it relates to delimitation, noted that State practice in dealing with deposits straddling a boundary line had been to enter into undertakings with a view to ensuring the most efficient exploitation or apportionment of the products extracted.9 Furthermore, the Court stated that agreements for joint exploitation were particularly appropriate where areas of overlapping claims result from the method of delimitation chosen and there is a question of preserving the unity of deposits.10 Provisional arrangements of a practical nature have been recognised as important tools in achieving the objectives of the Convention, and it is for this reason that the Convention imposes an obligation on parties to a dispute to ‘make every effort’ to reach such arrangements. 6  The Convention, Articles 74(3), 83(3). 7  Rainer Lagoni, “Report on Joint Development of Non-living Resources in the Exclusive Economic Zone, I.L.A.” Report of the Sixty-Third Conference (1998): 509, 511–512, quoted in Mensah, “Joint Development Zones as an Alternative Dispute Settlement Approach in Maritime Boundary Delimitation”, in Rainer Lagoni & Daniel Vignes, Maritime Delimitation (Leiden: Nijhoff, 2006), 143–146. 8  Eritrea/Yemen II, I.L.R. p. 417 (1999), The Eritrea/Yemen Arbitration Awards of 1998 and 1999 (Permanent Court of Arbitration Award Series 2005), online: http://www.pca-cpa .org. 9  North Sea Continental Shelf, Judgment, ICJ Reports (1969): 3 at para. 97. 10  North Sea Continental Shelf, Judgment, ICJ Reports (1969): 3 at para. 99.

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Hampering or Jeopardising the Final Agreement

The second obligation imposed by Articles 74(3) and 83(3) of the Conven­ tion, the duty to make every effort “. . . not to jeopardise or hamper the reaching of the final agreement”, is an important aspect of the Convention’s objective of strengthening peace and friendly relations between nations and of settling disputes peacefully. However, it is important to note that this obligation was not intended to preclude all activities in a disputed maritime area. The Virginia Commentary for example states that the obligation “does not exclude the conduct of some activities by the States concerned within the disputed area, so long as those activities would not have the effect of prejudicing the final agreement.”11 In the context of activities surrounding hydrocarbon exploration and exploitation, two classes of activities in disputed waters are therefore permissible. The first comprises activities undertaken by the parties pursuant to provisional arrangements of a practical nature. The second class is composed of acts which, although unilateral, would not have the effect of jeopardizing or hampering the reaching of a final agreement on the delimitation of the maritime boundary. The Tribunal in the Guyana-Suriname case held the view that unilateral acts which do not cause a physical change to the marine environment would generally fall into the second class. However, acts that do cause physical change would have to be undertaken pursuant to an agreement between the parties to be permissible, as they may hamper or jeopardise the reaching of a final agreement on delimitation. A distinction is therefore to be made between activities of the kind that lead to a permanent physical change, such as exploitation of oil and gas reserves, and those that do not, such as seismic exploration. The distinction adopted by the Tribunal in the Guyana-Suriname case was consistent with the jurisprudence of international courts and tribunals on interim measures. The ICJ’s decision in the Aegean Sea case between Greece and Turkey distinguishes between activities of a transitory character and activities that risk irreparable prejudice to the position of the other party. Greece had requested that Turkey be ordered to refrain from all exploratory activity or scientific research without its consent pending a final judgment. In particular, Greece requested that Turkey be ordered to cease its seismic exploration in disputed waters, an activity involving the detonation of small explosions aim at sending sound waves through the seabed. The Court declined to indicate interim measures, citing three factors: (1) the fact that seismic exploration does 11  Virginia Commentary, Vol. II, p. 815.

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not involve any risk of physical damage to the seabed or subsoil, (2) that the activities are of a transitory character and do not involve the establishment of installations, and (3) that no operations involving the actual appropriation or other use of the natural resources were embarked upon.12 In the circumstances, the Court found that Turkey’s conduct did not pose the risk of irreparable prejudice to Greece’s rights in issue in the proceedings.13 It should be noted that the regime of interim measures is far more circumscribed than that surrounding activities in disputed waters generally. As the Court in the Aegean Sea case noted, the power to indicate interim measures is an exceptional one,14 and it applies only to activities that can cause irreparable prejudice. The cases dealing with such measures are nevertheless informative as to the type of activities that should be permissible in disputed waters in the absence of a provisional arrangement. Activities that would meet the standard required for the indication of interim measures, in other words activities that would justify the use of an exceptional power due to their potential to cause irreparable prejudice, would easily meet the lower threshold of hampering or jeopardising the reaching of a final agreement. The criteria used by international courts and tribunals in assessing a request for interim measures, notably the risk of physical damage to the seabed or subsoil, therefore appropriately guided the Tribunal’s analysis of an alleged violation of a party’s obligation under Articles 74(3) and 83(3) of Convention. It should not be permissible for a party to a dispute to undertake any unilateral activity that might affect the other party’s rights in a permanent manner. However, international courts and tribunals are expected to be careful not to stifle the parties’ ability to pursue economic development in a disputed area during a boundary dispute, as the resolution of such disputes will typically be a time-consuming process. The Tribunal’s interpretation of the obligation to make every effort not to hamper or jeopardise the reaching of a final agreement reflected this delicate balancing. It was the Tribunal’s opinion that drawing a distinction between activities having a permanent physical impact on the marine environment and those that did not, accomplished this and was consistent with other aspects of the law of the sea and international law.

12  Aegean Sea, Interim Protection, Order, ICJ Reports (1979): 3 at para. 30. 13  Id. at para. 31. 14  Id.

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The Tribunal’s Findings in the Guyana-Suriname Case on the Duty to Make Every Effort to Enter into Provisional Arrangements of a Practical Nature

In the arbitration Suriname had claimed that Guyana had violated its duty to make every effort to enter into provisional arrangements as it persistently demanded that Suriname permit CGX (CGX Resources Inc. was a Canadian company to which a concession has been granted by Guyana for oil exploration in the disputed area) to resume exploratory drilling and that Suriname accepted Guyana’s concessions in the disputed area.15 Guyana, on its side, claimed that Suriname, both before and after the CGX incident, failed to make serious efforts to negotiate provisional arrangements.16 The efforts by Guyana and Suriname to arrive at provisional arrangements appear to have started in 1989. The Joint Communiqué of 25 August 1989 between the President of Guyana and the President of Suriname recorded that the two Presidents expressed concern over the potential for disputes “with respect to petroleum development within the area of the North Eastern and North Western Seaward boundaries of Guyana and Suriname respectively.”17 They agreed that pending settlement of the boundary question, representatives of the agencies responsible for petroleum development within the two countries should agree on modalities which would ensure that the opportunities available within the disputed area could be jointly utilised. Moreover, the Presidents agreed that concessions already granted in the disputed area would not be disturbed.18 The 1989 agreement led to the 1991 “Memorandum of Understanding— Modalities for Treatment of the Offshore Area of Overlap between Guyana and Suriname” (the ‘MOU’). The Staatsolie representatives negotiating the MOU however claimed that they lacked the authority to negotiate an agreement on the actual utilisation of resources in the disputed area. The MOU was therefore limited in scope: it applied only to one Guyanese oil concession, the 1988 concession to Lasmo/BHP, and provided that further discussions would have to 15  Suriname Rejoinder, paras. 5.12–5.14. 16  Guyana Reply, paras. 9.1–9.14. 17  Joint Communiqué Signed at the Conclusion of the State Visit to Suriname by Hugh Desmond Hoyte, President of the Cooperative Republic of Guyana and Ramsewak Shankar, President of the Republic of Suriname (25 December 1989): Guyana Memorial, Annex 72. 18  Guyana Memorial, para. 4.32.

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occur if the concession holder made any discoveries.19 The MOU provided further that representatives of both governments would meet within thirty days to conclude discussions on modalities for joint utilisation of the disputed area awaiting a final boundary agreement. Suriname, however, never sent a delegation or representative to conclude discussions, as contemplated by the MOU.20 In 1994, Guyana submitted a new draft of proposed “Modalities for Treatment of the Offshore Area of Overlap between Guyana and Suriname”; however Suriname failed to respond to it.21 Over the following years, Suriname did not engage in further discussions on the topic despite certain efforts by Guyana. There were also indications that the already limited MOU was disavowed by Suriname during that time.22 For the Tribunal, the evidence demonstrated that Suriname did not make every effort to enter into provisional arrangements before 8 August 1998. Although this could not form the basis of a finding that Suriname had violated the Convention, Suriname’s subsequent conduct, which was consistent with its pre-1998 conduct, did constitute a failure to meet its obligations under Articles 74(3) and 83(3) and constituted a violation of the Convention. Indeed, in the build-up to the CGX incident of 3 June 2000, Suriname did not fulfil its obligation to make every effort to enter into provisional arrangements relating to the exploratory activities of Guyana’s concession holder CGX. While it was conducting seismic testing in the disputed area in 1999, CGX announced publicly that it had received approval from Guyana for its drilling programme,23 and later the company had announced a drilling schedule.24 Less than three weeks after the latter announcement, which occurred on 10 April 2000, “the drilling plans had become known in Suriname via the ‘grapevine’.”25 Suriname’s first reaction had come in the form of a diplomatic note dated 10 May 2000, in which it had cautioned Guyana against its proposed course of conduct.26 Following Guyana’s response on 17 May 2000, asserting that all activities were

19  Suriname Preliminary Objections, paras. 6.26–6.28. 20  Suriname Preliminary Objections, para. 6.28. 21  Guyana Memorial, paras. 4.36–4.37. 22  Cable 94 Georgetown 2405 from the United States Embassy in Georgetown, Guyana to the United States Secretary of State (21 July 1994), Guyana Reply, Annex R11: “Mungra responded that the MOU had no validity because it had never been approved by the Surinamese Parliament.” 23  CGX Press Releases, 29 September 1999, reproduced in Guyana Memorial, Annex 158. 24  Guyana Memorial, Annex 158. 25  Suriname Preliminary Objections, paras. 6.34–6.35. 26  Guyana Memorial, Annex 48.

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taking place within Guyanese territory,27 Suriname again issued a note verbale objecting to the planned drilling, insisting on termination of all activities in the disputed waters, and informing Guyana of its intention to “protect its territorial integrity and national sovereignty . . .”28 On 2 June 2000, hours before the CGX incident occurred, Guyana had invited Suriname to “send a high level delegation to Georgetown within twenty-four (24) hours to commence dialogue” on matters relating to the maritime boundary.29 At all times Suriname was under an obligation to make every effort to reach a provisional arrangement, however this obligation had become particularly pressing and relevant when Suriname had become aware of Guyana’s concession holder’s planned exploratory drilling in disputed waters. Instead of attempting to engage Guyana in a spirit of understanding and cooperation as required by the Convention, Suriname had opted for a harder stance. Even though Guyana had attempted to engage it in a dialogue which may have led to a satisfactory solution for both parties, Suriname had resorted to self-help in intercepting the CGX rig, in violation of the Convention. In order to satisfy its obligation to make every effort to reach provisional arrangements, Suriname would have actively had to attempt to bring Guyana to the negotiating table, or, at a minimum, to have accepted Guyana’s last minute 2 June 2000 invitation and negotiated in good faith. It notably could have insisted on the immediate cessation of CGX’s exploratory drilling as a condition to participating in further talks. However, as Suriname did not opt for either of these courses of action, it failed, in the build-up to the CGX incident, in its duties under Articles 74(3) and 83(3) of the Convention. The Tribunal ruled that Guyana had also violated its obligation to make every effort to enter into provisional arrangements by its conduct leading up to the CGX incident. Guyana had been preparing exploratory drilling for some time before the incident,30 and should have, in a spirit of cooperation, informed Suriname directly of its plans. Indeed, notification in the press by way of CGX’s public announcements was not sufficient for Guyana to meet its obligation under Articles 74(3) and 83(3) of the Convention. The Tribunal held that Guyana should have sought to engage Suriname in discussions concerning the drilling at a much earlier stage. Its 2 June 2000 invitation to Suriname to discuss the modalities of any drilling operations, although an attempt to 27  Guyana Memorial, Annex 77. 28  Guyana Memorial, Annex 78. 29  Guyana Memorial, Annex 79. 30  Guyana appears to have authorised CGX to drill in the disputed area on 10 August 1999, almost a full year before the CGX incident: Press Releases, Guyana Memorial, Annex 158.

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diffuse a tense situation, was not sufficient in itself to discharge Guyana’s obligation under the Convention. Steps Guyana could have taken consistent with efforts to enter into provisional arrangements included (1) giving Suriname official and detailed notice of the planned activities, (2) seeking cooperation of Suriname in undertaking the activities, (3) offering to share the results of the exploration and giving Suriname an opportunity to observe the activities, and (4) offering to share all the financial benefits received from the exploratory activities. Following the CGX incident in June of 2000, numerous meetings and communications between the parties had taken place in which, in the opinion of the Tribunal, had they both engaged in good faith negotiations relating to provisional arrangements. Already on 6 June 2000 the parties had expressed their determination to “put in place arrangements to end the current dispute over the oil exploration concessions.”31 Further discussions had then been scheduled to take place, including on 13 June 2000 at a meeting of the Joint Technical Committee,32 as well as on 17–18 June 200033 and 28–30 January 2002.34 A meeting of the Subcommittee of the Guyana-Suriname Border Commission had been held on 31 May 2002, at which modalities for negotiating a provisional arrangement had been discussed.35 Subsequently, two joint meetings of the Suriname and Guyana Border Commissions were held (on 25–26 October 2002 and 10 March 2003).36 Although they were ultimately unsuccessful in reaching a provisional arrangement, both Parties had demonstrated a willingness to negotiate in good faith in relatively extensive meetings and communications.37 As a result, the Tribunal was satisfied that both Parties had respected their obligation relating to provisional arrangements after the CGX incident. Suriname had claimed that Guyana had violated its obligation to make every effort not to hamper or jeopardise the reaching of a final agreement by allowing its concession holder to undertake exploratory drilling in the disputed waters.38 With respect to this claim, the Tribunal found that there was a 31  Guyana Memorial, Annex 81. 32  Guyana Memorial, Annex 82. 33  Guyana Memorial, Annex 83. 34  Suriname Counter-Memorial, Annex 8, p. 6. 35  Guyana Memorial, Annex 85. 36  Guyana Memorial, Annexes 87–88. 37  See Suriname Daily Judge’s Folder, Vol. II, Tab H5 for a list of diplomatic post-August 1998 exchanges between Suriname and Guyana concerning a provisional arrangement or final delimitation of the maritime boundary. 38  Suriname Rejoinder, Chapter 6, Submission 2.C.

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substantive legal difference between certain oil exploration activities, notably seismic testing, and exploratory drilling. The question that the Tribunal had addressed here was whether a party engaging in unilateral exploratory drilling in a disputed area fell short of its obligation to make every effort, in a spirit of understanding and cooperation, not to jeopardise or hamper the reaching of the final agreement on delimitation. As set out above, unilateral acts that caused a physical change to the marine environment would generally be comprised in a class of activities that could only be undertaken jointly or by agreement between the parties. This was due to the fact that these activities could jeopardize or hamper the reaching of a final delimitation agreement as a result of the perceived change to the status quo that they would engender. Indeed, such activities could be perceived to, or may genuinely, prejudice the position of the other party in the delimitation dispute, thereby both hampering and jeopardising the reaching of a final agreement. That however was not to say that all exploratory activity should be frozen in a disputed area in the absence of a provisional arrangement. Some exploratory drilling might cause permanent damage to the marine environment. Seismic activity on the other hand should be permissible in a disputed area. In GuyanaSuriname case, both Parties had authorised concession holders to undertake seismic testing in disputed waters, and these activities had not given rise to objections from either side. In the circumstances at hand, the Tribunal did not consider that unilateral seismic testing was inconsistent with a party’s obligation to make every effort not to jeopardise or hamper the reaching of a final agreement. To the extent that Suriname had believed that Guyana’s authorisation of its concession holder to undertake exploratory drilling in disputed waters constituted a violation of its obligation to make every effort not to jeopardise or hamper the reaching of a final agreement on delimitation, and if bilateral negotiations had failed to resolve the issue, a remedy was set out in the options for peaceful settlement envisaged by Part XV and Annex VII of the Convention. The obligation to have recourse to these options was binding on both Guyana and Suriname. Guyana had claimed that Suriname had violated its obligations under Articles 74(3) and 83(3) to make every effort not to hamper or jeopardise the reaching of a final agreement by its use of a threat of force to respond to Guyana’s exploratory drilling.39 39  Guyana Reply, para. 8.1.

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Suriname had a number of peaceful options to address Guyana’s authorisation of exploratory drilling. The first, in keeping with its other obligation under Articles 74(3) and 83(3), was to enter into discussions with Guyana regarding provisional arrangements of a practical nature to establish the modalities of oil exploration and potentially of exploitation. In the event of failure of the negotiations, Suriname could have invoked compulsory dispute resolution under Part XV, Section 2 of the Convention. That course of action would also then have given Suriname the possibility to request provisional measures “to preserve [its] rights . . . or to prevent serious harm to the marine environment, pending the final decision.”40 The Tribunal found that Surname’s threat of force in a disputed area, while also threatening international peace and security, jeopardised the reaching of a final delimitation agreement.

The Tribunal’s Conclusions

The Tribunal had, therefore, declared that both Guyana and Suriname had violated their obligations under Articles 74(3) and 83(3) of the Convention to make every effort to enter into provisional arrangements of a practical nature. Furthermore, both Guyana and Suriname had violated their obligations, also under Articles 74(3) and 83(3) of the Convention, to make every effort not to jeopardise or hamper the reaching of a final delimitation agreement. The Tribunal’s conclusions and the analysis on which these were based provide valuable guidance for agreeing on provisional arrangements for carrying on exploratory activities to parties, which find themselves faced with overlapping claims in disputed maritime areas. 40  The Convention, Article 290.

Chapter 39

La délimitation du plateau continental du Golfe Persique : une entreprise inachevée Djamchid Momtaz* Couvrant une superficie de 250 000 km², le Golfe Persique est bordé de 8 Etats1 détenant à eux seuls plus de la moitié des réserves en pétrole et en gaz connues dans le monde et considérées comme récupérables. Dans la plupart des cas, les gisements terrestres sont prolongés par des structures sous-marines faisant de cette mer semi-fermée un véritable réservoir d’énergie. La faible profondeur des eaux du Golfe Persique a facilité l’exploitation offshore. En vue de délimiter leurs plateaux continentaux respectifs, les Etats côtiers ont déployé une intense activité diplomatique, ralentie ou interrompue du fait des conflits armés qui ont secoué la région au cours des dernières décennies. Ces efforts ont dans la plupart des cas abouti à la conclusion d’accords bilatéraux2. A l’exception de l’Irak, qui, pour des raisons tant géographiques que politiques, est resté à l’écart de ce processus, tous les Etats côtiers y ont été impliqués. Abstraction faite du Qatar et du Royaume de Bahrein, qui ont saisi la Cour internationale de Justice * L’auteur tient à remercier son collègue Sassan Seyrafi pour son aide dans la préparation de cette contribution. 1 L’Iran occupe toute la rive orientale du Golfe Persique tandis que sur ses côtes méridionales se trouvent d’ouest en est : l’Irak, le Koweit, l’Arabie Saoudite, l’archipel de Bahrein, le Qatar, les Emirats Arabes Unis et le sultatnat d’Oman. Les Emirats Arabes Unis sont quant à eux constitués de 7 émirats, à savoir : Abu-Dhabi, Dubaï, Shardjah, Ajman, Umm-al-Qaïwain, Ras-al-Khaimah et Fujairah dont le littoral ne borde que la mer d’Oman. 2  Tous ces accords n’ont pas été conclus entre Etats souverains : c’est sous les auspices du Royaume-Uni, qui y exerçait alors son protectorat, que certains des Emirats ont délimité leur plateau continental soit entre eux, soit avec des Etats qui leur sont adjacents ou leur font face. Il s’agit par ordre chronologique des Accords suivants : Arabie Saoudite-Bahrein du 22 février 1958 ; Arabie Saoudite-Iran du 24 octobre 1968 ; Qatar-Abu Dhabi du 20 mars 1969 ; Iran-Qatar du 29 septembre 1969 ; Iran-Bahrein du 17 juin 1971 ; Iran-Dubaï du 13 août 1974 ; Koweït-Arabie Saoudite du 2 juillet 2000 et, enfin, Oman-Emirats Arabes Unis du 22 juin 2002 qui n’a pas été rendu public. Les lignes séparatives du plateau continental établies par la plupart de ces instruments ont été reportées sur des cartes établies par : Victor Prescott & Clive Schofield The Maritime Political Boundaries of the World (Leiden: Martinus Nijhoff Publishers, 2005), 513.

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pour régler leur différend relatif à la délimitation de leur plateau continental3, les autres Etats qui n’ont pu à ce jour la parachever considèrent que la négociation diplomatique devrait rester la voie privilégiée. Toutefois, trois principaux obstacles rendent les pourparlers quelque peu ardus  : les revendications concurrentes de souveraineté (I), le chevauchement des zones d’exploration et d’exploitation (II) et la configuration et la longueur des côtes (III).

Les revendications concurrentes de souveraineté

La solution des revendications concurrentes de territoire et la détermination de l’Etat qui détient un titre territorial constituent le préliminaire indispensable à toute délimitation du plateau continental. Les Emirats Arabes Unis, en raison de leur controverse avec l’Iran sur le statut de l’île d’Abou Moussa et de leur différend territorial avec l’Arabie Saoudite relatif aux côtes de Khour Al-Adaid à l’est de la péninsule du Qatar, rencontrent des difficultés pour parachever la délimitation de leur plateau continental.

La controverse sur le statut de l’île d’Abou Moussa

Le statut d’Abou Moussa est déterminé par le Mémorandum d’accord concrétisé par un échange de lettres, en date des 16 et 25 novembre 1971, entre l’Emir de Shardjah et le ministre des Affaires étrangères de l’Iran par l’entremise du Secrétaire au Foreign Affairs du Royaume-Uni en charge des relations extérieures de cet Emirat. Ce Mémorandum mettait fin à un conflit remontant à 1903 lorsque le Royaume-Uni avait détaché l’île de la Perse. Conformément 3  Arrêt du 16 mars 2001 Cf. analyse détaillée dans Emmanuel Decaux « Affaire de la délimitation maritime et des questions territoriales entre Qatar et Bahreïn, fond arrêt du 6 mars 2001  (Qatar c. Bahreïn ) », A.F.D.I. (2001) : 177-240.  Certains de ces accords ont fait l’objet d’études fouillées et documentées  Cf. entre autres : Yolande Momtaz, « Les règles relatives à la délimitation du plateau continental et leur application au Golfe Persique », thèse pour le doctorat d’Etat, Université de droit, d’économie et de sciences sociales de Paris (1976), 450 ; Ahmad Razavi Continental Shelf Delimitation and Related Maritime Issues in the Persian Gulf (The Hague/Boston/London: Martinus Nijhoff Publishers, 1997), 327; Keith Highet, “Overview of delimitation of maritime zones in the Gulf Law of the Sea Institute”, 30th Annual Conference Al-Aïn United Arab Emirates May 19–22 (1996); Reza Dehghani Continental Shelf Delimitation in the Persian Gulf (New-York: the UN-Nippon Foundation Fellowship Program, 2009); Husain M. Al Baharna, The Legal Status of the Arabian Gulf States (Manchester, Manchester University Press, 1968).

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à ce modus vivendi, aucun des protagonistes ne renonce à ses revendications sur l’île et ne reconnaît la prétention de l’autre partie. Il devait néanmoins être dénoncé au lendemain de sa conclusion par les Etats arabes entretenant de difficiles relations politiques avec l’Iran4. Depuis, le conflit s’est transformé en une véritable pomme de discorde entre l’Iran et le monde arabe qui, dans le cadre de la Ligue des Etats arabes et du Conseil de la coopération du Golfe, condamnent régulièrement l’occupation de l’île d’Abou Moussa et des îles Tumb5 et demandent à ce qu’il y soit mis fin. Le différend n’a pas fait obstacle à l’exploitation du pétrole des fonds adjacents à l’île. Elle s’est poursuivie conformément aux dispositions du Mémorandum. Celui-ci prévoit que Buttes Gas and Oil Company, concession de Shardjah, continue d’opérer dans les eaux de la mer territoriale de l’île, à charge de partager à égalité entre l’Iran et cet émirat, les revenus tirés de l’exploitation du gisement de Mubarek6. La compagnie, à laquelle la société Crescent s’est substituée, a poursuivi les opérations jusqu’au terme de la concession en 2009. Elle ne fut pas renouvelée en raison de la non rentabilité de l’exploitation. Les plateformes d’exploitation ont été rétrocédées à l’Iran. La décision de limiter le plateau continental de l’île d’Abu Moussa à la ceinture extérieure de sa mer territoriale est conforme à la pratique suivie par les Etats du pourtour du Golfe Persique. En effet, les accords de délimitation conclus à ce jour révèlent qu’ils ont toujours renoncé à reconnaître aux îles éloignées des côtes, comme c’est le cas d’Abu Moussa, un plateau continental. On pourrait citer à titre d’exemple les accords conclus entre l’Iran et l’Arabie Saoudite, l’Iran et Dubaï et le Qatar et Abou-Dhabi, conformément auxquels la ligne de démarcation du plateau continental s’incurvant pour suivre le tracé de la limite extérieure de la mer territoriale chevauche la première. Cette solution, recommandée par la doctrine bien avant l’amorce de la délimitation du plateau continental7, s’est révélée être la méthode garantissant une solution

4  Djamchid Momtaz, « Le statut de certaines îles éparses du Golfe Persique : Abou Moussa et les Petite et Grande Tumb », 8 Collection Espaces et ressources maritimes (1994) : 195-210. 5  Le Conseil de la coopération du Golfe propose à l’Iran de soumettre le différend à la Cour internationale de Justice Cf. Communiqué final de sa 52ème session ordinaire en date du 17 septembre 1994 Doc. N.U. A/49/412 et S/1994/1078 du 21 septembre 1994. Depuis, cette demande a été régulièrement réitérée. 6  § 2 du Mémorandum. 7  S. W. Boggs, “Delimitation of Seaward Areas under National Jurisdiction”, 2 AJIL (1951) : 258-259.

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équitable dans la délimitation des espaces marins de faible étendue en évitant de désavantager les Etats ne possédant pas d’île8. Ainsi, dans le cas de l’île d’Abou Moussa et conformément à la pratique existante, l’Iran et les Emirats Arabes Unis agissant au nom de Shardjah9 pourraient procéder à la délimitation de leurs plateaux continentaux respectifs en prolongeant à l’ouest de l’île le tracé de la ligne fixée par l’Accord Iran-Dubaï10 pour rejoindre la ligne séparative provisoire convenue entre l’Iran et Abou Dhabi11. A l’est de l’île, cette ligne rejoindrait les plateaux continentaux des autres émirats de la Fédération. Cette solution serait conforme aux dispositions du Mémorandum et préserverait l’existence de la zone d’exploitation commune limitée au sous-sol de la mer territoriale de l’île d’Abou Moussa. Il va sans dire qu’il subsiste peu d’espoir de voir la réalisation d’un tel tracé dans la mesure où les Emirats semblent désormais remettre en cause le Mémorandum, intransigeance qui ne manquerait pas d’influer négativement sur d’éventuelles négociations relatives à la délimitation du plateau continental entre l’Iran et les autres émirats de la Fédération.

La controverse sur la souveraineté du Khour Adaid

Le 20 mars 1969 était conclu un accord entre le Qatar et Abou Dhabi, tous deux sous protectorat britannique, délimitant les eaux du Khour Adaid et 8  Dans le cas des îles situées du mauvais côté de la ligne médiane, qui ne se pose pas dans le Golfe Persique, c’est à la technique de l’enclavement de ces îles qu’o a recours pour ajuster la ligne et l’adapter aux circonstances pertinentes Cf. § 238 de l’arrêt rendu le 19 novembre 2012 par la Cour internationale de Justice dans l’affaire opposant le Nicaragua à la Colombie Cf. Lucie Delabie, « Les fragiles équilibres entre prévisibilité juridique et opportunité judiciaire en matière de délimitation maritime : l’arrêt de la Cour internationale de Justice dans l’affaire du différend territorial et maritime (Nicaragua c. Colombie) », AFDI (2012) : 246. 9  Conformément à l’article 121 § 1 de la Constitution du 2 décembre 1971 de la Fédération des Emirats Arabes Unis, la Fédération a compétence exclusive dans le domaine de la politique étrangère et des relations internationales. 10  Cet accord, conclu après la constitution de l’Emirat, a été signé au nom de la Fédération par le fils de l’Emir de Dubaï en tant que ministre de la défense des Emirats et non en tant que représentant de l’Emir de Dubaï. On pourrait donc présumer qu’il a été négocié dans le respect des dispositions de l’article 121 de la Constitution de l’Emirat. 11  Il est vrai que le texte portant tracé de la ligne séparative n’a été que paraphé par les représentants de l’Iran et d’Abou Dhabi le 7 septembre 1971 avant la constitution de la Fédération des Emirats Arabes Unis. Récemment, les Emirats auraient demandé à l’Iran de procéder à la signature de l’accord ainsi qu’à sa ratification.

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au-delà. On se doit de relever que certaines des dispositions de cet accord ont trait à des espaces maritimes déjà délimités par un accord conclu entre l’Arabie Saoudite et le Qatar le 14 décembre 1965 ; double emploi d’autant plus inexplicable que le Royaume-Uni ne pouvait ne pas être au courant de sa conclusion. La question se complique encore plus par la signature, le 21 août 1974, d’un troisième accord portant sur la délimitation de ces mêmes espaces maritimes entre l’Arabie Saoudite et les Emirats Arabes Unis12. En vertu de cet accord, les Emirats transfèrent à l’Arabie Saoudite, dans le cadre d’un échange de territoires, un couloir maritime large de quelque 60 milles marins. Les deux parties s’engagent à délimiter leur plateau continental dans les plus brefs délais et en tenant compte de ce transfert. Le refus des Emirats de ratifier cet instrument fit que cette disposition devait rester lettre morte. Afin de consolider le statut du Traité de 1969, le Qatar et les Emirats, au nom d’Abou Dhabi, demandaient son enregistrement au secrétariat des Nations Unies en 2006. Compte tenu du fait que plusieurs accords portaient déjà sur la délimitation des mêmes espaces maritimes, le secrétariat refusa dans un premier temps son enregistrement et demanda aux parties de conclure un nouvel accord13. L’accord de 1969 fut finalement enregistré après que ces deux Etats eurent déclaré qu’ils ont toujours respecté ses dispositions14. L’Arabie Saoudite réagissait en déclarant qu’elle avait, depuis 1969, « élevé des protestations auprès des Etats concernés et leur prédécesseur à propos de l’accord qu’elle continue de rejeter ». Il est paradoxal que l’Arabie Saoudite n’ait fait aucune référence à ces protestations ni à l’accord qu’elle avait signé avec le Qatar en 1965. Ce n’est qu’en 2008 que son existence sera révélée par les deux entités signataires. La même année, l’affaire connaissait un nouveau rebondissement suite au revirement inexplicable du Qatar. Le 5 juillet 2008, le Qatar signait avec l’Arabie Saoudite un procès-verbal additionnel à l’accord de 1965 relatif à la délimitation de leurs frontières terrestres et maritimes15. L’examen de la carte annexée au procès-verbal révèle 12  Recueil des traités Vol. 1733 no 30250 1993 pp. 23-41. Sur les soubresauts des relations entre l’Arabie Saoudite et le Royaume-Uni concernant les querelles territoriales aboutissant à la conclusion d’un accord dénoncé par la suite par les Emirats Cf. Victor Prescott and Clive Schofield op. cit., 509-511. 13  Lettre du 7 août 2006 du Secrétaire Général (LA 41 TR 2809 2000/Pend/2). 14  Déclarations du 15 octobre 2006 des Emirats Arabes Unis, du 3 décembre 2006 du Qatar et du 11 avril 2007 de l’Arabie Saoudite par laquelle elle réagissait aux prétentions des deux Etats précités. Toutes ces déclarations sont reproduites dans le 64 Bulletin du droit de la mer (2008) : 36 et s. L’accord de 1963 sera enregistré au Secrétariat des Nations Unies le 14 décembre 2006 sous le no 43372. 15  Recueil des traités, vol. 1733, no 30249 (1993) pp. 15 et s.

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que le tracé de la ligne de démarcation convenue entre l’Arabie Saoudite et le Qatar est identique à celui sur lequel ce dernier Emirat et Abou Dhabi s’étaient entendus dans le cadre de l’accord de 1969. En d’autres termes, l’Arabie Saoudite aurait succédé aux droits et obligations d’Abou Dhabi en vertu de cet accord sans que ce dernier y ait consenti. De surcroit, le Qatar aurait agi en violation des obligations contractuelles issues de l’accord de 1969 à l’égard d’Abou Dhabi. C’est donc à juste titre que les Emirats estiment que les droits et obligations qu’ils détiennent en vertu de cet accord ne sauraient être affectés par le procès-verbal dont ils rejettent la validité, ce que l’Arabie Saoudite conteste évidemment16. Ceci explique le tracé des lignes de base droites de l’Arabie Saoudite qui comportent plusieurs segments dans le Khour Adaid. Ce tracé a suscité la protestation des Emirats qui estiment à juste titre que ces segments coupent dans cette région son accès à la haute mer du Golfe Persique17. En vue de consolider le statut de l’accord de 1969 sérieusement malmené, les Emirats se sont, semble-t-il, efforcés de ressusciter l’accord qu’Abou Dhabi avait conclu avec l’Iran le 7 septembre 1971. La proposition faite officieusement à l’Iran de ratifier cet accord, si elle aboutissait, pourrait être interprétée comme une reconnaissance de l’accord de 1969 par l’Iran, le point de départ des tracés des deux accords coïncidant. A ce jour, L’Iran n’a pas répondu à cette offre.

Les chevauchements des zones d’exploration et d’exploitation

Les chevauchements des périmètres de concessions accordées par les Etats pour la recherche et l’exploitation des gisements offshore résultent de l’établissement unilatéral par ces derniers des lignes de base à partir desquelles ces périmètres ont été mesurés. De tels chevauchements peuvent poser de sérieux problèmes lors des négociations de délimitation. Tel est le cas des pourparlers menés de longue date par l’Iran et le Koweït Le même problème risque de se poser, et avec autant d’acuité, lorsque seront engagées de probables négociations pour délimiter le plateau continental adjacent à l’ancienne zone neutre récemment partagée entre le Koweït et l’Arabie Saoudite. 16  Communication datée du 16 juin 2009 des Emirats au Secrétaire Général des Nations Unies. 17  Royal Decree no 6 (M/14) du 11 novembre 2010 reproduit dans le 72 Bulletin du droit de la mer (2010) : 82-86. Par une communication au Secrétaire Général en date du 17 novembre 2011, les Emirats contestaient le bien-fondé du tracé des lignes de base dont celles de l’Arabie Saoudite.

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Délimitation du plateau continental entre l’Iran et le Koweït

En avril 1958, l’Iran concédait à l’Iranian Pan American Cie une zone de recherche et d’exploitation située face aux côtes du Koweït. En janvier 1961, c’était au tour du Koweït d’attribuer à la Compagnie Shell une concession au large de ses côtes. Pour déterminer la ligne médiane du Golfe Persique devant, en toute logique, servir à fixer la limite externe des concessions, ces deux Etats avaient eu recours à des méthodes différentes. L’Iran s’était basé sur la laisse de basse mer de l’île de Kharg alors que le Koweït ignorait l’île de Failakah. Cette différence de traitement allait aboutir au tracé de deux lignes parallèles constituant un couloir large de quelque 20 km et revendiqué par les deux protagonistes18. Toutefois, ils parviendront à signer, le 13 janvier 1968, un accord de principe19 par lequel ils acceptent de donner plein effet à ces deux îles lors de la délimitation de leur plateau continental. Mais l’accord conclu le 24 octobre de la même année entre l’Iran et l’Arabie Saoudite n’accordant qu’un demi-effet à Kharg, la convoitise du Koweït allait s’en trouver attisée et déterminer son refus de finaliser l’accord de principe. Revirement qui entrainera la rupture des négociations. Leur reprise en 2001 fut d’autant plus ardue qu’entretemps l’Iran avait procédé à des forages et mis en valeur le gisement Arash à l’extrémité de la zone qu’il avait concédée. La réaction du Koweït ne se fit pas attendre. l’Iran acceptait alors de ne pas entreprendre l’exploitation de ce gisement en vue de faciliter la poursuite des négociations pour trouver une solution. Les recherches entreprises par l’Iran ont révélé qu’à l’exception de cette découverte, le couloir ne recelait pas d’autres ressources prometteuses mis à part le gisement Soroush dont l’extrémité est écornée par le couloir. Exploité de longue date par l’Iran, il ne fait l’objet d’aucune contestation. Ainsi, dans cette zone, la question de partage des ressources révélées primerait sur celle de la répartition de l’espace. Dans ces conditions, le retour éventuel à l’accord de principe où le tracé d’une ligne médiane partage à égalité la zone ne pourrait avoir l’assentiment de l’Iran puisque, dans les deux cas, le résultat serait de le priver des ressources d’Arash. Dans la mesure où il est désormais acquis qu’Arash n’est qu’un prolongement du gisement Al Durrah à cheval entre le plateau continental du Koweït et celui adjacent à l’ancienne zone neutre, l’Iran devrait pouvoir se contenter

18  Yolande Momtaz op. cit., 363 et s. 19  Ibid., 360-362.

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d’un partage des revenus tirés de son exploitation. Il semble que cet Etat préfère qu’Arash soit exploité en commun avec le Koweït20.

Délimitation du plateau continental de l’Iran et de l’ancienne zone neutre

La zone neutre sur laquelle le Koweït et l’Arabie Saoudite avaient exercé une souveraineté conjointe a été partagée entre eux le 7 juillet 1965. L’accord prévoit que les parties continuent d’exercer à égalité leurs droits souverains en matière d’exploitation des ressources naturelles des fonds marins situés au-delà de la mer territoriale de la zone21. Il fallut attendre le 2 juillet 200022 pour que les parties parviennent à conclure un accord délimitant entre elles le plateau continental de l’ancienne zone neutre. Cet accord prévoit la mise en place d’un condominium limité à l’exploitation de ses ressources. C’est la base de l’argumentation des deux parties selon laquelle elles se considèrent comme partie unique dans les négociations devant être menées avec l’Iran pour la partition de ce plateau continental. Invoquant le principe bien établi de l’effet relatif des traités, l’Iran s’y refuse, considérant que ces négociations devraient être menées séparément avec le Koweït et l’Arabie Saoudite23. En toute logique, les négociations en cours entre l’Iran et le Koweït devraient tenir compte de cette nouvelle réalité. Cette approche se justifie aussi en raison de la similitude de certains problèmes soulevés. En effet, l’ancienne concession de l’Iranian Pan American Cie ne se limite pas aux fonds situés face à la côte du Koweït mais s’étend au-delà pour englober ceux qui font face à l’ancienne zone neutre. Ainsi, les solutions envisageables dans le cas du plateau continental situé entre l’Iran et le territoire du Koweït proprement dit pourraient aussi bien s’appliquer au-delà. On pourrait dès lors opter pour la solution envisagée dans l’accord de principe conclu entre l’Iran et le Koweït donnant plein effet aux îles de Kharg et de Failakah, à moins de prolonger la ligne médiane divisant le couloir résultant du chevauchement des concessions précitées. 20  Offshore Energy to day.com rapporte la déclaration en date du 23 juillet 2012 d’un haut responsable du ministère iranien du pétrole déclarant qu’en cas de refus du Koweït d’accepter l’offre d’exploitation commune d’Arash l’Iran entreprendra lui-même l’exploitation de ses ressources. 21  Husain Al Baharna op. cit., 264-277. 22  Recueil des traités, vol. 251 no 37359, 251 et s. 23  Note verbale du 25 janvier 2012 adressée au Secrétaire Général des Nations Unies figurant au 78 Bulletin du droit de la mer (2012) : 36.

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En réalité, dans ce cas, la présence de riches gisements dans la zone à départager24 compliquerait la tâche des négociateurs. Il est fort probable que le Koweït, en vue de s’approprier une plus grande part de ces ressources, refuse d’accorder plein effet à Kharg en se fondant sur le traitement qui a été accordé à cette île, à savoir un demi-effet dans l’accord conclu entre l’Arabie Saoudite et l’Iran. Telle semble être la raison fondamentale pour laquelle le Koweït et l’Arabie Saoudite préfèrent mener des négociations tripartites avec l’Iran pour la délimitation du plateau continental de l’ancienne zone neutre. Négociations au cours desquelles le demi-effet que ce dernier Etat avait accepté de conférer à l’île de Kharg dans cet accord pourrait lui être opposable.

La configuration et la longueur des côtes

Comme la jurisprudence internationale en matière de délimitation des espaces maritimes l’a rappelé régulièrement « c’est la terre qui confère la source juridique du pouvoir qu’un Etat peut exercer dans les prolongements maritimes »25. Le droit souverain que l’Etat exerce sur les ressources naturelles de son plateau continental ne fait pas exception à ce principe de base26. C’est donc en partant des côtes d’un Etat qu’il faut délimiter l’espace sous-marin relevant de sa juridiction par rapport à ceux qui lui sont limitrophes ou lui font face27. Tout naturellement, la longueur des côtes pertinentes et leur configuration seront des facteurs déterminants dans le tracé de la ligne de démarcation du plateau continental conformément à la règle d’équidistance. Ainsi, la concavité et la faible longueur de la côte d’un Etat constituent un désavantage par rapport à celui dont la côte est convexe et d’une plus grande longueur. Il est vrai que ces facteurs géographiques considérés comme circonstances spéciales ou pertinentes pourraient être pris en compte pour ajuster le tracé en vue de parvenir à une solution équitable. Dans le Golfe Persique, la concavité de la côte de l’Irak le désavantage par rapport au Koweït et à l’Iran qui lui sont limitrophes, circonstance qui justifierait un ajustement de la ligne d’équidistance en sa faveur. 24  En 1966, l’Iranian Pan Am Oil Cie faisait la découverte au large de la zone neutre, dans la région où sa concession chevauche celle accordée à l’Arabian oil Company, d’un important gisement Cf. Pétrole Information no 1103-15 mars 1968 p. 31. 25  Affaire des pêcheries (Royaume-Uni c. Norvège) Arrêt du 18 décembre 1951 p. 133. 26  Affaire du plateau continental de la mer du Nord (République fédérale d’Allemagne / Danemark République fédérale d’Allemagne /Pays-Bas) Arrêt du 20 février 1969 § 96. 27  Affaire du plateau continental (Tunisie / Jamahiriya Arabe Libyenne) Arrêt du 24 février 1982 § 74.

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Désavantage géographique de l’Irak

Le désavantage qui résulte pour l’Irak de l’application de la règle d’équidistance est frappant. Il a été mis en lumière par la carte dressée en 1959 à la demande de l’Irak par un hydrographe norvégien. Mise par ce dernier à la disposition du Danemark, elle fut exhibée lors des plaidoiries dans l’affaire du plateau continental de la Mer du Nord devant la Cour internationale de Justice. Le Danemark, à l’insu de l’Irak, s’en était servi pour consolider son argumentation en faveur de la nature coutumière de la règle d’équidistance incluse dans l’article 6 de la Convention de Genève sur le plateau continental28. Il est vrai que l’Irak ne conteste pas l’applicabilité de cette disposition à la délimitation de son plateau continental, à condition toutefois qu’on prenne en compte les principes d’équité et de justice29. Depuis la publication de cette carte, la fixation des points extrêmes qui devraient servir à déterminer la ligne séparative du plateau continental de l’Irak a aggravé son désavantage. Il s’agit tout d’abord du point de départ du thalweg du Chatt-el-Arab, situé dans son embouchure dans le Golfe Persique et fixé par le Protocole relatif à la délimitation de la frontière fluviale du 25 décembre 1975 conclu entre l’Iran et l’Irak30 ; ensuite, du point de départ dans le Golfe Persique de la ligne médiane tracée dans le Khour Abd Allah par la Commission de démarcation établie par le Conseil de Sécurité. Bien que très proche de la ligne tracée par l’hydrographe norvégien, le tracé de la Commission, en la prolongeant dans le voisinage immédiat de la pointe de Warbah, semble avantager le Koweït au détriment de l’Irak31. Il est intéressant de noter que les coordonnées géographiques des lignes de base droites rendues 28  Carte connue sous le nom de son auteur : Coucheron-Aamat. Common rejoinder submitted by the Government of the Kingdom of Denmark and the Kingdom of the Netherlands, Pleadings, Oral Arguments, Documents, North Sea Continental Shelf cases Vol. 1 1968 p. 502. 29  UNCLOS III Official Records Vol. I pp. 148 et s. 30  Djamchid Momtaz Le statut juridique du Chatt –el- Arab. Actualités juridiques et politiques en Asie (Paris : Pedone, 1988), 59-67. Le point de départ du tracé du thalweg dans le Golfe Persique a servi pour le tracé du 1er segment des lignes de base droites de l’Iran Cf. Décret du 22 juillet 1973 reproduit dans la Série législative des Nations Unies : Législations nationales et traités concernant le droit de la mer (ST/LEG/SER.B/19) : 55. 31  Le tracé de la frontière maritime ne figure pas dans le mandat de la Commission d démarcation mise en place par la Résolution 687 du 4 avril 1991 du Conseil de Sécurité. Celui-ci, dans sa Résolution 773 du 26 août 1992, se félicite de l’initiative prise par la Commission de procéder à la délimitation de Khor Abd Allah « Rapport final de la Commission de démarcation de la frontière entre l’Irak et le Koweït sur la démarcation de la frontière

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récemment publiques par l’Irak32 ne tiennent pas compte des points fixés tant par le Protocole que par la Commission. Paradoxalement, les points extrêmes de ces lignes fixés respectivement à l’extrémité de la côte irakienne du Chattel-Arab et du Khour Abd Allah désavantagent encore plus l’Irak. Ce choix, fait au mépris de ses propres intérêts, ne peut dès lors se justifier que sur la base de considérations politiques, à savoir les réticences de l’Irak à l’égard du Protocole et de la décision de la Commission dont il conteste la compétence.

L’ajustement de la ligne d’équidistance en faveur de l’Irak

Il est dans l’intérêt de l’Irak que l’ajustement de la ligne équidistante fait pour réduite son désavantage et aboutir à une solution équitable soit entrepris avant que les Etats qui lui sont limitrophes ne parviennent à délimiter leurs plateaux continentaux respectifs. C’est la raison pour laquelle il mise sur des négociations tripartites et dénonce les négociations bilatérales menées par l’Iran et le Koweït affirmant que la délimitation qui pourrait en résulter ne pourrait lui être opposée33. L’Irak devrait être conscient que, selon les critères dégagés par la jurisprudence internationale, l’ajustement ou le déplacement de la ligne équidistante se limiterait à une simple adaptation du tracé sans le bouleverser. Il s’agit d’éviter un effet d’amputation sur les fonds marins sur lesquels les Etats parties concernés par la délimitation possèdent un titre juridique34 qui les priverait entièrement de zones sous-marines correspondant aux projections de leurs côtes35. C’est donc à partir de seuls facteurs géographiques tels que la

32  33  34 

35 

internationale entre la République d’Irak et du Koweït » Doc. N.U. S/25811 du 6 août 1993 §97. Coordonnées géographiques d la ligne de base droite de l’Irak remises au Secrétariat des Nations Unies le 11 mars 2011. 77 Bulletin du droit de la mer (2011) : 17. Lettre adressée par l’Irak au Secrétaire Général des Nations Unies le 18 avril 2001 Doc. N.U. S/2001/374. Le Tribunal international du droit de la mer, dans l’arrêt rendu le 14 mars 2012 dans l’affaire opposant le Myanmar et le Bangladesh, a néanmoins apporté une modification importante en vue de tenir compte de la concavité de la côte du Bangladesh. Le Tribunal s’écarte de la jurisprudence bien établie de la Cour internationale de Justice selon laquelle la correction devrait constituer une adaptation sans bouleversement du tracé de la ligne médiane provisoire. Cf. Hyun Jung Kim, « La délimitation de la frontière maritime dans le Golfe du Bengale. Courir deux lièvres à la fois avec succès dans le règlement de la délimitation maritime », A.F.D.I. (2012) : 457. Lucie Delabie op. cit., 244.

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configuration et la disparité des côtes qu’il sera procédé à l’ajustement. Plus précisément, il faudrait avoir à l’esprit que l’objectif ultime dans toute opération de délimitation est de parvenir à une ‘solution équitable’36 et nullement une répartition équitable des espaces maritimes objet de différends. Il ne s’agit donc pas de recourir à une ‘justice distributive’37 qui referait la nature ou assurerait l’accès aux ressources38. D’après le Tribunal international pour le droit de la mer, pour atténuer les effets néfastes résultant de la concavité d’une côte et aboutir à une solution équitable, « il n’existe pas de formule magique », la Cour étant tenue de procéder aux ajustements « dans le respect des contraintes juridiques pertinentes »39. Conclusion On se doit de constater que les problèmes qui continuent d’opposer certains Etats de la région et empêchent que la délimitation du plateau continental du Golfe Persique soit menée à son terme peuvent trouver des solutions équitables dans le cadre du droit de la délimitation maritime. Se pose dès lors la question de savoir pourquoi les Etats concernés louvoient et qu’aucune négociation sérieuse ne s’engage. La première constatation qui s’impose est que l’Iran est partie prenante à la plupart des différends existants. Cela s’explique évi­demment par l’importance de sa façade maritime dans le Golfe Persique mais aussi par son isolement sur le plan tant politique que culturel. De plus, les querelles territoriales qui perdurent entre certaines des parties prenantes ont pour origine des décisions prises par le Royaume-Uni à l’insu des souverains de l’époque qui persistent aujourd’hui à rentrer dans leurs droits. De surcroit, l’importance de l’enjeu du partage des ressources naturelles ne saurait être négligée. Enfin, dans tous les cas, la médiatisation des différends a contribué à sensibiliser l’opinion publique des Etats concernés rendant encore plus difficiles des concessions qui risqueraient d’être assimilées à des trahisons. L’une 36  Article 83 de la Convention des Nations Unies sur le droit de la mer. 37  Affaire du plateau continental (Tunisie/Jamahiriya Arabe Libyenne), op. cit., § 71. 38  Il n’en demeure pas moins que l’accès aux ressources naturelles est un argument fréquemment utilisé par les parties à un différend devant le prétoire des juridictions internationales et plus particulièrement la Cour internationale de Justice. Il arrive qu’elles prennent en compte ce facteur en tant que circonstance exceptionnelle, mais cela reste rare. Pour les cas où ces instances ont tenu compte d’un tel argument Cf. Lucie Delabie op. cit., 244. 39  Différend relatif à la délimitation de la frontière maritime entre le Bangladesh et le Myanmar dans le Golfe du Bengale (Bangladesh/Myanmar) Arrêt du 14 mars (2012) § 237.

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des solutions qui pourrait être envisagée pour sortir de l’impasse, en attendant qu’un compromis puisse être trouvé entre les parties, pourrait être l’exploitation commune des ressources en jeu ou le partage des revenus tirés de leur exploitation40.

40  Solutions retenues dans de nombreuses situations conflictuelles similaires Cf. Masahiro Miyoshi “The joint Development of Offshore Oil and Gas in Relation to Maritime Boundary Delimitation”, Maritime Briefing Vol. 21 § 5, ed. Clive Schofield (Durham: University of Durham, 1999).

Chapter 40

Regional Fisheries Bodies and Regional Fisheries Management Organizations and the Settlement of Disputes Concerning Marine Living Resources Jean-François Pulvenis de Séligny-Maurel 1 In November 1982, a few months after the adoption of the United Nations Convention on the Law of the Sea (UNCLOS), the UN General Assembly approved the Manila Declaration on the Peaceful Settlement of Disputes.2 The Declaration emphasized in its preamble that “the question of the peaceful settlement of disputes should represent one of the central concerns for States and for the United Nations”, and that “the efforts to strengthen the process of the peaceful settlement of disputes should be continued”. These statements were decidedly consonant with the essence of the Convention itself, which contains very extensive provisions on the settlement of disputes as well as on the subsequent process to develop a legal and institutional framework for the governance of the seas and oceans. This framework foresees regional and subregional organizations for the conservation and sustainable management of the marine living resources,3 which are the institutional expression of ‘functional regionalism’ and whose merits and benefits have been demonstrated by decades of “experience in the field of international fisheries administration”.4 Among their competences and responsibilities, there is a particular interest in considering the role that these bodies may play with regards to the settlement of disputes concerning the marine living resources. In general terms, the recourse to regional mechanisms, at least as a first step and without prejudice to a possible recourse to other means and procedures at a global level, has always been recognized as convenient and beneficial in 1  The views expressed are personal to the author and do not reflect a formal position of the institutions with which he has been associated. 2  Resolution A/RES/37/10, 15 November 1982. 3  There are also bodies such as fisheries commissions that have been established in the framework of bilateral fisheries agreements, but we will focus here only on those that are subregional or regional and have more than two members. 4  Hugo Caminos & Vicente Marotta-Rangel, “Sources of the law of the sea”, in A Handbook of the New Law of the Sea, ed. R.-J. Dupuy & D. Vignes (Dordrecht: Nijhoff, 1991), 54.

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most instances. Not surprisingly, this is reflected in the United Nations Charter and the Manila Declaration5 and also in the UNCLOS. The Convention stipulates that Parties bound by a “general, regional or bilateral agreement or otherwise” establishing a procedure which entails a ‘binding decision’, will have to apply that procedure instead of the procedure provided under Part XV of the Convention “unless the parties to the dispute otherwise agree”.6 This rule applies to all disputes, including fisheries disputes, irrespective of the special status granted to the latter.7 For its part, the 1995 UN Fish Stocks Agreement (UNFSA) contains a more specific reference, since it stresses the role of “subregional and regional fisheries management organizations and arrangements”, in relation to the prevention of disputes8 and their settlement.9 The subregional and regional organizations for the conservation and management of the marine living resources can be classified into two main categories, taking into account the scope of their competence and responsibilities: 5  See for instance, the Manila Declaration, in its paragraph 6, which states that “States parties to regional arrangements or agencies shall make every effort to achieve pacific settlement of their local disputes through such regional arrangements or agencies before referring them to the Security Council.” See also the well-known provisions of Article 33, paragraph 1, of the UN Charter, which mentions “resort to regional agencies or arrangements”, among the various means for settlement of disputes that it enumerates. 6  See Article 282, Obligations under general, regional or bilateral agreements. Interestingly, the 1995 UN Fish Stocks Agreement (UNFSA), in its Article 27 “Obligation to settle disputes by peaceful means”, enumerates all the means listed in Article 33 of the UN Charter—including “resort to regional agencies or arrangements”—instead of limiting itself to a cross reference to that article, as the Convention did. 7  It may be recalled briefly that, first, the Convention excludes some fisheries disputes from the application of the general procedure under part XV, which leads to a binding decision of the International Court of Justice, the International Tribunal for the Law of the Sea, or an arbitral tribunal. Second, the Convention contains special provisions on the settlement of fisheries disputes, related to the use of experts, the prompt release of fishing vessels, the resort to a special arbitral procedure and, finally, the way in which the International Tribunal for the Law of the Sea may deal with this category of disputes. 8  See UNFSA, Article 28, Prevention of disputes, which refers to the establishment of “efficient and expeditious decision-making procedures within subregional and regional fisheries management organisations and arrangements” and through the strengthening of existing decision-making procedures. Although essentially correct, this might be considered as a somewhat reductionist vision of the role that RFMO/As can play in the prevention of disputes. 9  Among the “functions of subregional and regional fisheries management organisations and arrangements” listed in Article 10 of the UNFSA is: “k. promote the peaceful settlement of disputes in accordance with Part VIII”.

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on the one hand, the Regional Fishery Bodies (hereinafter referred to as RFBs) and, on the other hand, the Regional Fisheries Management Organizations (hereinafter referred to as RFMOs)or Arrangements (RFMAs).10 Beyond such a difference, all these organizations may be considered to be playing an essential role in ensuring cooperation between their members for the conservation and sustainable management of living marine resources. This role and its importance have been emphasized constantly and consistently in the competent international global forums, particularly the United Nations and UN’s Food and Agriculture Organization (FAO). Both the UN General Assembly and the FAO Committee on Fisheries (COFI) have called for the strengthening of these bodies, organizations and arrangements (including through the undertaking of performance reviews) or their establishment in areas of the seas and oceans where they do not exist yet. Concerning disputes, the mere existence of these bodies and organizations contributes to their prevention, independently from whether or not the constitutive instruments make an express reference to the obligation of the members to cooperate to this end.11 This preventive role arises mainly from the fact that they offer a forum where the different interests and positions of members can be presented and discussed, where mutually satisfactory solutions may be sought and assistance and advice may be provided. In this manner, many potential disputes that might have arisen otherwise are defused.12

10  The term “RFB” will designate a body that are endowed only with an advisory competence and whose area of competence covers mainly areas under the national jurisdiction of its members. The term ‘RFMOs’ will designate a body endowed with the competence to adopt binding measures. ‘RFMOs’ have a permanent institutional framework (usually a permanently staffed secretariat, which may vary in size), while ‘RFMAs’ do not. 11  See the Convention on the Conservation and Management of Fishery Resources in the South East Atlantic Ocean, Windhoek, April 2001, related to the South East Atlantic Fisheries Commission (SEAFO). Article 24, paragraph 1, of that convention reads as follows: “The Contracting Parties shall cooperate in order to prevent disputes.” This provision served as a model and was afterwards inserted with minor drafting changes in the 2003 Antigua Convention, concerning the Inter-American Tropical Tuna Commission (IATTC) (article XXV, paragraph 1) and in the 2007 amendments to the Northwest Atlantic Fisheries Organization (NAFO) Convention (article XV, paragraph 1). 12  An interesting example of the recognition of this role may be found in the Revised Statutes of the Western Central Atlantic Fishery Commission (WECAFC), which were adopted by the FAO Council, Resolution 1/131 of 2006. Article 6 Functions of the Commission, stipulates: “o. to assist, as appropriate, its Members in preventing and, upon request of the interested parties, resolving fisheries disputes”.

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There are situations, however, in which all possible efforts to collectively prevent a dispute from arising do not suffice. Since it is a common eventuality, one would expect to find provisions on the settlement of disputes in most of the statutes subscribed by RFBs and RFMOs. A review of the existing instruments shows that this is not so. In the case of RFBs this is not surprising since as mentioned above, these bodies have only an advisory competence. It is possible however to observe at least an incipient trend towards an increased awareness of the potential role of RFBs in providing some kind of assistance to their members in the settlement of disputes arising between them, including upon request of the parties to these disputes.13 It is more surprising, if not somewhat alarming, not to find any provisions on the settlement of disputes in many of the agreements establishing RFMOs. This absence may be deemed an important shortcoming or flaw in the legal framework of these organizations, which should be corrected. Such was the con­clusion reached by the panel mandated with the performance review of the International Commission for the Conservation of Atlantic Tunas (IATTC). The panel reported that “No provision is included in the ICCAT Basic Texts regarding the settlement of disputes” and that “ICCAT has taken no measure regarding the dispute settlement procedure”. It was recommended that: “ICCAT consider filling such gaps and inadequacies” and “that the Commission consider establishing dispute settlements procedures, including the possible use of an expert panel and compulsory proceedings entailing binding decisions, either by amending the Convention or otherwise”.14 In the constitutive agreements of several RFMOs, a general reference to the question of the settlement of disputes can be found, but worded in rather vague terms. For example, they merely mention their role to “promote the peaceful settlement of disputes . . .”, as in the Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (WCPFC).15 There may also be a broad reference to the possibility for the organization to settle a dispute, but without any indication of the ways and means for that purpose, as in the constitutive agreements of four RFMOs established within the FAO framework.16 13  See for instance Article 6 of the revised statutes of the WECAFC, quoted above, n. 12. 14  See the Report of the Independent Performance Review of ICCAT (2009): 2, 30. 15  WCPFC, Article 10, paragraph 1(n). 16  The Asia-Pacific Fishery Commission (APFIC), the General Fisheries Commission for the Mediterranean (GFCM), the Indian Ocean Tuna Commission (IOTC) and the Regional Commission for Fisheries (RECOFI). The constitutive agreements of all these four

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In a similar approach, although the issue of the settlement of disputes is mentioned in the agreement, the development of more detailed provisions is left for the future. Thus, the statutes of the North-East Atlantic Fisheries Commission (NEAFC) assign to the Commission the task of developing and recommending the relevant procedures.17 The constitutive instruments of a number of RFMOs contain many more elaborated provisions on the settlement of disputes, including some through their ulterior insertion in these instruments because of an increased awareness of the desirability of such an approach. The most significant example is probably that of the extensive amendments to the statutes ofthe North Atlantic Fisheries Organization (NAFO).18 Leaving their content aside, these more detailed provisions seem always to reflect a compromise between two sets of options. First, should parties to the dispute enjoy the fullest freedom possible or should they, from the start, be bound to use a specific means leading to a compulsory solution? Second, is it sufficient to refer the parties to the dispute to the means of settlement available under international law or under the UNCLOS, or is it more desirable to develop ad hoc procedures that are more or less specific to the organization? The balance reached through the negotiation of these provisions varies considerably, since various approaches can be taken, alone or combined.

The Approach Consisting in a Broad Reference to the Means of Settlement Outside the Framework of the Fishery Organization or Arrangement

General Reference to the Means of Settlement Available under International Law This approach generally consists in the insertion of a provision that merely refers the parties to the means of settlement available under general inter

commissions contain a similar clause that reads as follows: “Any dispute regarding the interpretation or application of the present Agreement, if not settled by the Commission . . .” (APFIC, Article XIV; GFCM, Article XV; IOTC, Article XXIII, RECOFI, Article XVI). 17  “The Commission shall make recommendations establishing procedures for the settlement of disputes arising under the Convention.” , Article 18 bis, Convention on Future Multilateral Co-Operation in North-East Atlantic Fisheries, 1980, amended in 2004 and 2005. This text was proposed by the European Union and adopted in November 2004 at the Annual Meeting of the Commission. 18  In its 29th annual meeting in September 2007, NAFO adopted an extensive “Amendment to the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries”, including a substantial new Article XV-Settlement of Disputes.

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national law, without prejudging the choice that they may make and without offering them guidance on how they should choose. Such an approach seems more appropriate for organizations that are more political than technical. For example, the constitutive agreement ofthe Ministerial Conference on Fisheries Cooperation among African States Bordering the Atlantic Ocean (ATLAFCO– COMHAFAT) contains the following clause: “Parties shall settle any dispute between them concerning the interpretation or application of this Convention by peaceful means in accordance with the Charter of the United Nations”.19 Reference to the Means of Settlement of Disputes Established in the UN Convention on the Law of the Sea or in the UNFSA Another approach, similar to the previous one, consists in inserting a provision that refers the parties to the settlement of disputes procedures set forth to in the UNCLOS or in the UNFSA. For example, the Convention establishing the Western and Central Pacific Fisheries Commission (WCPFC), essentially refers the parties to a dispute to Part VIII of the UNFSA,20 although disputes involving fishing entities are, for their part, to be submitted to arbitration.21 A similar solution may be found in the South Pacific Regional Fisheries Management Organization (SPRFMO)22 and in the Southern Indian Ocean Fisheries Agreement (SIOFA); in the latter case however, only the disputes related to straddling stocks are to be submitted to the procedures envisaged in the UNFSA, whereas all the others to those in UNCLOS.23 In both the SPRFMO

19  Regional Convention on Fisheries Cooperation among African States bordering the Atlantic Ocean, Dakar, July 1991, Article 21, Settlement of Disputes. 20  WCPFC, Article 31, Procedures for the settlement of disputes, “The provisions relating to the settlement of disputes set out in Part VIII of the Agreement apply, mutatis mutandis, to any dispute between members of the Commission, whether or not they are also Parties to the Agreement”. 21  WCPFC, Annex I, Fishing entities, paragraph 3: “If a dispute concerning the interpretation or application of this Convention involving a fishing entity cannot be settled by agreement between the parties to the dispute, the dispute shall, at the request of either party to the dispute, be submitted to final and binding arbitration in accordance with the relevant rules of the Permanent Court of Arbitration.” 22  Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean, Article 34, Settlement of disputes: “2. 2 In any case where a dispute is not resolved through the means set out in paragraph 1, the provisions relating to the settlement of disputes set out in Part VIII of the 1995 Agreement shall apply, mutatis mutandis, to any dispute between the Contracting Parties.” 23  In the case of SIOFA, only disputes related to straddling stocks are to submitted Article 20—Interpretation and settlement of disputes: “1. Contracting Parties shall use their best endeavours to resolve their disputes by amicable means. At the request of any Contracting

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and SIOFA, disputes involving fishing entities are to be settled through arbitration, as in the WCPFC model, which both instruments reproduce almost word for word.24 In some instances, a hybrid solution is adopted, in which having recourse to the procedures of the UN Convention on the Law of the Sea is presented as a potential alternative, in the amended NAFO for example,25 or as a last step after the failure of all previous attempts to settle the disputes, in the amended NAFO also26 and in the South East Atlantic Fisheries Organization (SEAFO).27

24 

25 

26 

27 

Party a dispute may be submitted for binding decision in accordance with the procedures for the settlement of disputes provided in Section II of Part XV of the 1982 Convention or, where the dispute concerns one or more straddling stocks, the procedures set out in Part VIII of the 1995 Agreement. The relevant part of the 1982 Convention and the 1995 Agreement shall apply whether or not the parties to the dispute are also parties to either of these instruments.” SPRFMO, Annex IV, Fishing entities: “4. If a dispute involves a fishing entity which has expressed its commitment to be bound by the terms of this Convention in accordance with this Annex and cannot be settled by amicable means, the dispute shall, at the request of any party to the dispute, be submitted to final and binding arbitration in accordance with the relevant rules of the Permanent Court of Arbitration”; SIOFA, Article 20— Interpretation and settlement of disputes: “2. If a dispute involves a fishing entity which has expressed its commitment to be bound by the terms of this Agreement and cannot be settled by amicable means, the dispute shall, at the request of any party to the dispute, be submitted to final and binding arbitration in accordance with the relevant rules of the Permanent Court of Arbitration.” Amended NAFO, Article XV, paragraph 12: “Nothing in this Convention shall be argued or construed to prevent a Contracting Party to a dispute, as State Party to the 1982 Convention, from submitting the dispute to compulsory procedures entailing binding decisions against another State Party pursuant to Section 2 of Part XV of the 1982 Convention, or as State Party to the 1995 Agreement from submitting the dispute to compulsory procedures entailing binding decisions against another State Party pursuant to Article 30 of the 1995 Agreement.” Amended NAFO, Article XV, paragraph 8: “Where the Contracting Parties to a dispute are unable to agree on any peaceful means referred to in paragraph 2 to resolve their dispute or are unable to otherwise reach a settlement, the dispute shall at the request of one of them, be submitted to compulsory proceedings entailing a binding decision pursuant to Part XV, Section 2, of the 1982 Convention or Part VIII of the 1995 Agreement.” SEAFO, 2001, Article 24, paragraph 4: “Where a dispute is not referred for settlement within a reasonable time of the consultations referred to in paragraph 2, or where a dispute is not resolved by recourse to other means referred to in this article within a reasonable time, such dispute shall, at the request of any party to the dispute, be submitted for binding decision in accordance with procedures for the settlement of disputes provided in Part XV of the 1982 Convention or, where the dispute concerns one or more straddling

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The Approach Consisting in Allowing to the Parties in the Dispute a High Degree of Flexibility and Freedom to Choose the Means of Settlement that they Deem Most Appropriate

A number of instruments reflect the willingness of their negotiators to reach a flexible and pragmatic balance between giving the most freedom of choice to the parties in the dispute, including through a laconic and general reference to the means of settlement available under international law, and binding them to a specific procedure leading to a compulsory solution. This is usually done through the establishment of a procedural succession of different steps, whilst carefully ensuring that, throughout the process, the parties may choose what they consider to be the most effective and amicable means of settlement, as well as the least costly. Generally, a first stage of ‘consultations’ (rather than ‘negotiations’) aimed at solving the dispute may be envisaged, as in the IATTC Antigua Convention, which reads: “1. (. . .) Any member may consult with one or more members about any dispute related to the interpretation or application of the provisions of this Convention to reach a solution satisfactory to all as quickly as possible”.28 The next step, logically, would be for the parties to the dispute to engage in consultations in order to choose the most appropriate means for its settlement,29 as contemplated in the 1980Convention on the Conservation of Antarctic Marine Living Resources (CAMLR Convention), Article XXV, paragraph 1, which stipulates that: stocks, by provisions set out in Part VIII of the 1995 Agreement. The relevant part of the 1982 Convention and the 1995 Agreement shall apply whether or not the parties to the dispute are also Parties to these instruments.” 28   Inter-American Tropical Tuna Commission—Convention for the Strengthening of the Inter-American Tropical Tuna Commission Established by the 1949 Convention between the United States of America and the Republic of Costa Rica (“Antigua Convention”), Antigua, June 2003, Article XXV, Settlement of disputes, paragraph 1. Compare with SEAFO, Article 24, paragraph 2: “2. If any dispute arises between two or more Contracting Parties concerning the interpretation or implementation of this Convention, those Contracting Parties shall consult among themselves with a view to resolving the dispute, (. . .)” 29  These consultations may be the only procedural stage explicitly referred to, as in the Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea, Washington 11 February 1994, Article XIII, which reads: “If any dispute arises between two or more of the Parties concerning the interpretation or application of this Convention, those Parties shall consult among themselves with a view to having the dispute resolved by available peaceful means of their own choice.”

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If any dispute arises between two or more of the Contracting Parties concerning the interpretation or application of this Convention, those Contracting Parties shall consult among themselves with a view to having the dispute resolved by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement or other peaceful means of their own choice. This clause served afterwards as a model for the 1993 FAO Compliance Agreement, the Convention for the Conservation of Southern Blue fin Tuna (CCSBT)30 and, to some extent, the IATTC Antigua Convention.31 These stages of consultations may fail, as well as the recourse to a nonbinding third-party means of settlement, such as conciliation or mediation. It may seem wise then to contemplate beforehand the possibility for the parties to the dispute to resort to a binding procedure. But, consistent with the spirit of this approach, such recourse cannot be compulsory and may be undertaken only “with the consent in each case of all parties to the dispute”, as expressly stated in the CAMLR Convention and CCSBT. It is important to avoid falling into the trap of a procedural dead-end, and the lack of consent does not absolve the parties from their responsibility of continuing to seek a resolution of the dispute by whatever other means.32 Once these premises have been established, 30  Convention for the Conservation of Southern Blue fin Tuna, Canberra, May 1993, Article 16, paragraph 1: “1. If any dispute arises between two or more of the Parties concerning the interpretation or implementation of this Convention, those Parties shall consult among themselves with a view to having the dispute resolved by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement or other peaceful means of their own choice.” 31  Antigua Convention, Article XXV, paragraph 2, which reads as follows: “2. If a dispute is not settled through such consultation within a reasonable period, the members in question shall consult among themselves as soon as possible in order to settle the dispute through any peaceful means they may agree upon, in accordance with international law.” Compare with SEAFO, Article 24, paragraph 2: “2. If any dispute arises between two or more Contracting Parties concerning the interpretation or implementation of this Convention, those Contracting Parties shall consult among themselves with a view to (. . .) having the dispute resolved by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement or other peaceful means of their own choice.” 32  CAMLR Convention, Article XXV, paragraph 2 and CCSBT, Article 16, paragraph 2: “2. Any dispute of this character not so resolved shall, with the consent in each case of all Parties to the dispute, be referred for settlement to the International Court of Justice or to arbitration; but failure to reach agreement on reference to the International Court or to arbitration shall not absolve Parties to the dispute from the responsibility of continuing to seek to resolve it by any of the various peaceful means referred to in paragraph 1 above.”

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it does not contradict the spirit of that approach to append to the constitutive instrument detailed provisions providing for a binding procedure that the parties to a dispute may resort to. Thus the CAMLR Convention and the CCSBT contain an “Annex for an arbitral tribunal”, which is identically drafted. Of course, once the parties have decided to use that procedure, they are no longer free to modify the instrument and they cannot withdraw from the arbitration nor challenge its compulsory nature: the process must move forward, volens nolens, even in the face of lack of cooperation of the parties or the arbitrators themselves.33

The Approach Consisting in Favoring the Compulsory Recourse to Specific Means of Settlement of the Dispute

In this approach, notwithstanding the freedom of choice that the parties may be granted in a first stage, if the dispute is not solved, the parties are bound to have recourse to the means of settlement that has been identified beforehand. The most drastic option in this respect is to select a procedure that will conclusively lead to a binding decision. It may be compulsory arbitration, as in the case of the Bay of Bengal Programme Inter-Governmental Organisation (BOBP-IGO);34 it may be compulsory recourse to the International Court of Justice, as in the case of four FAO bodies: the Asia-Pacific Fishery Commission 33  As expressly stipulated in the Annex for an arbitral tribunal of both the CAMLR Convention and the CCSBT, the Secretary General of the Permanent Court of Arbitration is to designate the second and/or third arbitrators when their appointment is not made “within the prescribed period” (Annex for an arbitral tribunal, paragraph 1); to avoid any possible blockage before and after the adoption by the tribunal of an award, it is specified, first, that the members of the tribunal “may not abstain from voting” (paragraph 3) and, second, that interpretation of the award (which is qualified, needless to say, as “final and binding”) shall be done by the arbitral tribunal upon request of any of the parties (paragraph 5). 34  In the Agreement on the Institutionalization of the Bay of Bengal Program as an Intergovernmental Organization, failure to settle a dispute means that the parties must submit it to a procedure of arbitration that is described in the instrument. The arbitral tribunal consists of three arbitrators, one to be appointed by each party and the third, who is the president of the tribunal, by “mutual consent”. If one of the parties fails to appoint its arbitrator, or if the third arbitrator is not appointed within two months, their respective designation will be made by the chairman of the Governing Council (article 19, paragraph 1); UNCITRAL rules are to apply (paragraph 2) and any member that fails to abide by the tribunal award may be suspended from the exercise of its rights and privileges (but a two/ third majority of members is needed) (paragraph 3).

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(APFIC), the General Fisheries Commission for the Mediterranean (GFCM), the Indian Ocean Tuna Commission (IOTC) and the Regional Commission for Fisheries (RECOFI). Interestingly however, in the case of these FAO bodies, the compulsory nature of the recourse to the ICJ is softened by the reference to the right that the parties still enjoy to eventually agree to submit the dispute to another method of their choice.35 One alternative may be the compulsory recourse to a non-binding means of settlement, as stipulated in the convention that established the Latin American Organization for Fisheries Development (Organización Latinoamericana de Desarrollo Pesquero—OLDEPESCA). Pursuant to that convention, if a dispute relating to its interpretation or implementation cannot be settled, any party to the dispute may unilaterally bring it to a Conciliation Commission composed of representatives of member countries chosen by the parties to the dispute.36 However, because the report of the conciliation commission is not binding, the parties might find themselves facing a deadlock, as in the approaches described previously. Not surprisingly, in order to avoid this situation, OLDEPESCA has adopted a formula, which is similar to that adopted in the CAMLR Convention and to the CCSBT: the parties to the dispute have the duty to resort to all the means of settlement available under international law until a solution acceptable to them is reached.37 Another possibility is to acknowledge from the start that the compulsory recourse to conciliation or to any procedure that does not lead to a binding decision is merely a step in the process towards the final settlement of the dispute. This is the view that has been 35  APFIC, Article XIV: “If as the result of this procedure the dispute is not settled, it shall be referred to the International Court of Justice in accordance with the Statute of the Court, unless the parties to the dispute agree to another method of settlement.” The same provision appears in article XV of the GFCM, article XXIII of IOTC and article XVI of RECOFI. In addition, in the specific case of GFCM, recourse to arbitration is contemplated “in the case of a Regional Economic Integration Organisation that is a member of the Commission”. 36  Convenio Constitutivo de la Organización Latinoamericana de Desarrollo Pesquero (OLDEPESCA), Mexico, Oct. 1982, Artículo 38. “Toda controversia relativa a la aplicación e interpretación de este Convenio que no sea resuelta por los miembros interesados, será sometida a petición de cualquier miembro parte de la controversia a una Comisión de Conciliación designada al efecto e integrada por representantes de los países miembros que escojan las partes en controversia . . .” 37  OLDEPESCA, Article 38: “En el caso de que la controversia no se resuelva con base en los trabajos de la Comisión de Conciliación se recurrirá a cualquiera de los medios que para la solución pacífica de controversias prevé el Derecho Internacional, hasta encontrar una solución aceptable para las partes.”

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adopted in the constitutive agreements of the four FAO bodies mentioned above (APFIC, GFCM, IOTC and RECOFI): the next step being, in that specific case, “renewed consideration by the parties concerned of the matter out of which the disagreement arose”.38

The Approach Consisting in the Recognition of the Need for a Special Treatment of Disputes that are of a Technical Nature or Belong to Specifically Identified Categories

The Establishment of a Special Procedure for Disputes Recognized as Being of a Technical Nature In the case of the constitutive agreement of SEAFO as well as the IATTC Antigua Convention, whose provisions in this respect were inspired by the former, disputes that are qualified as being of a “technical nature” may be submitted to a “non-binding ad hoc expert panel”; for these disputes, the possibility of having recourse to binding means is excluded.39 A similar approach

38  APFIC, Article XIV: “Any dispute regarding the interpretation or application of this Agreement, if not settled by the Commission, shall be referred to a committee composed of one member appointed by each of the parties to the dispute, and in addition an independent chairman chosen by the members of the committee. The recommendations of such a committee, while not binding in character, shall become the basis for renewed consideration by the parties concerned of the matter out of which the disagreement arose.” The same provision appears in article XV of the GFCM, article XXIII of the IOTC and article XVI of RECOFI. It is obvious that this procedure is very similar to conciliation. Not surprisingly, in the constitutive agreement of the IOTC, the reference to a ‘committee’ and to its ‘recommendations’ was replaced by a reference to a “conciliation procedure to be adopted by the Commission” and to its ‘results’. Strangely enough, this precedent was not followed later by the negotiators of RECOFI, who remained faithful to the original GFCM and APFIC model. 39  SEAFO, Article 24, paragraph 3: “In cases where a dispute between two or more Contracting Parties is of a technical nature, and the Contracting Parties are unable to resolve the dispute among themselves, they may refer the dispute to an ad hoc expert panel established in accordance with procedures adopted by the Commission at its first meeting. The panel shall confer with the Contracting Parties concerned and shall endeavour to resolve the dispute expeditiously without recourse to binding procedures for the settlement of disputes.” Compare that provision with the IATTC Antigua Convention, Article XXV, which is almost identical. The only difference introduced in the Antigua Convention is the reiterated reference to the agreement and consent of the parties involved: “In cases when two or more members of the Commission agree that they have a dispute of a technical nature, and they are unable to resolve the dispute among themselves, they may refer the dispute,

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may be found in the convention establishing the SPRFMO but with a considerable difference: if the dispute is not resolved, it shall be treated like any other dispute and the provisions of article VIII of the UNFSA shall apply.40

The Establishment of a Special Procedure for the Settlement of Specifically Identified Categories of Disputes Within the framework of NAFO, the new provisions on settlement of dis­putes that were adopted in September 2007 identify two categories of disputes related to the implementation of the decisions adopted by the Organization that are binding upon the Parties but may be objected by them. These two categories are: – the “explanation referred to in Article XIV, paragraph 5” of the reasons why a Party has made an objection; – the actions taken by a Party following an objection, or notification of nonapplicability of the decision after the indicated period. In both cases, notwithstanding the possibility of submitting the dispute to any of the means of settlement commonly available for all disputes concerning the “interpretation or application of the Convention” and referred to in Article XV, paragraph 2, the parties may submit the dispute to a procedure which is very similar to that described above in reference to SEAFO and IATTC, which is “a non-binding ad hoc panel proceeding”.41 An important difference is that by mutual consent, to a non-binding ad hoc expert panel constituted within the framework of the Commission in accordance with the procedures adopted for this purpose by the Commission. The panel shall confer with the members concerned and shall endeavor to resolve the dispute expeditiously without recourse to binding procedures for the settlement of disputes.” 40  Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean, Article 34, Settlement of disputes: “1. Contracting Parties shall cooperate in order to prevent disputes and shall use their best endeavours to resolve any disputes by amicable means which may include, where a dispute is of a technical nature, referring the dispute to an ad hoc expert panel. 2. In any case where a dispute is not resolved through the means set out in paragraph 1, the provisions relating to the settlement of disputes set out in Part VIII of the 1995 Agreement shall apply, mutatis mutandis, to any dispute between the Contracting Parties.” 41  NAFO, Article XV, paragraph 3: “Where a dispute concerns the interpretation or application of a measure adopted by the Commission pursuant to Article VI, paragraphs 8 and 9, or matters related thereto, including the explanation referred to in Article XIV, paragraph 5, any actions taken by a Contracting Party to the dispute following an objection

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the Convention contains an annex with detailed provisions that foresees the setting up and operation of the ad hoc panel.42 These provisions do not differ much from those generally used for a conciliation commission: after “conferring” with the parties in the dispute, the ad hoc panel presents a “report” containing “recommendations”.43 Another instance that is worth noting is the special procedure established in the constitutive agreement of the Pacific Salmon Commission (PSC), in its article XII entitled “Technical Dispute Settlement”. This article specifies what disputes are to be submitted to this procedure: “any dispute concerning estimates of the extent of salmon interceptions and data related to questions of over fishing”.44 These disputes may be referred to a “Technical Dispute Settlement presented pursuant to Article XIV, paragraph 2, or notification made pursuant to Article XIV, paragraph 4, the Contracting Parties to the dispute may submit the dispute to non binding ad hoc panel proceedings pursuant to Annex II.” 42  See NAFO, Annex II. In summary, the Executive Secretary establishes and maintains a list of experts “whose competence in the legal, scientific or technical aspects of fisheries covered by the Convention is established” and who are designated by the Parties (paragraph 1); after notification by the Parties (paragraph 2), both those originally involved in the dispute and those wishing to join the process (paragraph 3), a panel is established, which is usually composed of three members: two members designated by each party, eventually jointly by parties “which are of the same interest”, and a third panelist (to be the chair) by agreement. The President of the International Tribunal for the Law of the Sea (ITLOS) makes the appointment in case of failure of the parties to agree (paragraph 4). The ad hoc panel “may seek information and technical advice” (paragraph 6). It must produce and present its report and recommendations within 90 days (paragraph 7). This report and these recommendations must be adopted by consensus, or if no consensus may be achieved, by voting (paragraph 8). 43  NAFO, Article XV, paragraph 5. A similar approach has been followed in the convention establishing the SPRFMO but with a substantial difference: the formulation of an objection leads necessarily to the recourse to a “review panel”. See: Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean, Article 17, Implementation of Commission Decisions: “5 (a) When an objection is presented by a member of the Commission pursuant to paragraph 2, a Review Panel shall be established within 30 days after the end of the objection period. The Review Panel shall be established in accordance with the procedures in Annex II. (. . .)” As reported by the Secretariat of the SPRFMO, such a Review Panel to consider the Russian Federation’s objection to the Conservation and Management Measure for Trachurus murphyi was established on 21 May 2013. In August 2013, the Russian Federation confirmed its commitment to follow the Recommendations made by the Review Panel. on 5 July 2013.  44  Pacific Salmon Commission, Treaty between the Government of Canada and the Government of the United States of America concerning Pacific Salmon, Ottawa, January 1985, article XII, paragraph 1.

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Board”, whose establishment and operation are similar if not identical to those of an arbitral tribunal.45 In conclusion, it would be rather difficult to draw a general lesson from such a diverse array of approaches and solutions. Moreover, it is also important to consider the extent to which these procedures and mechanisms can be expected to be used. In this regard, one should probably not expect much consistency or predictability in the practice of the various bodies and organizations and their members, on account of the nature and scope of many, if not most, of the disputes likely to arise within the framework of these bodies and organizations and their activities. The interests at stake can be often limited in terms of their overall financial and economic value and the potential benefits deriving from a favorable settlement below the procedural costs. Faced with such prospect, the parties in a dispute may be tempted to disregard the means available under international law or the constitutive agreement, and look instead for a practical compromise46 or a less costly procedure such as settling the dispute through its being considered by one of the deliberative organs of the organization to which they belong.47

45  PSC, Article XII, paragraphs 2 and 3, and Annex III, Technical Dispute Settlement Board. Three members, two designated by each the parties, the third jointly, decisions qualified as “final and without appeal” except as a consequence of a request “based on information not previously considered by the Board and not previously known to or reasonable discoverable by the Party requesting such reconsideration”. 46  Following common wisdom as expressed in this advice given by Abraham Lincoln when he wrote: “Discourage litigation. Persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, expenses, and waste of time.” (“Note for Law Lecture. Written about July 1, 1850”, in Speeches and Letters of Abraham Lincoln 1832–1865 [New York: E.P. Dutton, 1919], 24). 47  The IATTC offers an interesting and recent example of such an occurrence. At the members’ request, the staff of the Commission had prepared draft terms of reference for the establishment of ad hoc group of experts for the settlement of existing disputes concerning the carrying capacity of the fishing fleet. These draft terms of reference inspired two separate proposals submitted by the United States and by Ecuador respectively (Proposal by the United States, Draft Resolution on the terms of reference of an ad hoc expert panel for the settlement of the current dispute regarding capacity and Proposal by Ecuador, Terms of reference of the ad hoc groups of experts for the settlement of the current disputes regarding capacity, reproduced as appendixes 5c and 5d respectively of the Minutes of the 83rd meeting of the IATTC, June 2012). The IATTC however did not pursue the matter and decided instead to submit the disputes (along with other capacity claims) to a special meeting of the open-ended Permanent Working Group on Capacity of the Feet, which it had established long before.

Chapter 41

The UNCLOS and the Settlement of Disputes: The ARA Libertad Case Susana Ruiz-Cerutti Introduction One of the achievements of the negotiations of the United Nations Convention on the Law of the Sea (UNCLOS) is to have incorporated a mechanism for the settlement of disputes broad enough to live up to the expectations of most States Parties. In that regard, the International Tribunal for the Law of the Sea (ITLOS) is one of the means that has proved to be very effective and valuable since its creation in 1996. According to Article 290 paragraph 1 of UNCLOS if a dispute has been duly submitted to a court or tribunal which considers that prima facie it has jurisdiction under Part XV or Part XI, section 5 of the Convention, ITLOS may prescribe any provisional measures which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment, pending the final decision. Regarding this ITLOS’ compulsory jurisdiction to intervene in provisional measures, this article will be focused on the ARA Libertad Case.1

Background of the Case

The Frigate ARA Libertad is a warship of the Argentine Navy within the scope of Article 29 of the UNCLOS. It is the flagship of the Argentine Navy and, as such, represents Argentina. It has been sailing the world’s seas for more than 50 years, conveying a message of peace and friendship with a view to consolidating relations between the Argentine Navy and its counterparts in third countries. Frigate ARA Libertad is used for navy cadet training trips. Within the framework of its 43rd instruction voyage, the Governments of Argentina 1  Request for the prescription of provisional measures pending the constitution of an arbitral tribunal in the ARA Libertad Case (Argentina v. Ghana) Case No 20, Provisional measures, International Tribunal for the Law of the Sea (ITLOS), Order of December 15, 2012.

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and Ghana agreed on the visit of the Frigate to the port of Tema (Republic of Ghana) and it arrived on the scheduled date of October 1, 2012. However, the following day Judge Richard Adjei-Frimpong [Superior Court of Judicature of Ghana (Commercial Division)] rendered an order requiring that Frigate ARA Libertad be held at the Tema Port in the context of a claim made in New York by ‘NML Capital Limited’, a ‘vulture’ private corporate fund registered in the Cayman Islands against Argentina. NML’s New York judgment is based on its ownership of defaulted Argentine Republic debt. NML acquired its interests in this debt at a deep discount both immediately before, and well after, Argentina suspended payments on its unsustainable external debt as a consequence of the worst economic crisis of its modern history. By the end of 2001, this crisis made it impossible for Argentina to service its overwhelming debt burden—some $80 billion in public external debt alone—while maintaining basic governmental services necessary for the health, welfare, and safety of the Argentine populace. Unable to service its debt, Argentina forced to defer interest and principal payments to debt holders and to seek a voluntary restructuring of its debt burden.2 In accordance with its business strategy, NML refused to participate in the Republic’s 2005 and 2010 voluntary, global debt exchange offers, which together resulted in the successful restructuring of approximately 92% of the Republic’s non-performing debt.3 Such order rendered by Judge Frimpong was contrary to international law, in particular, a violation of the immunities enjoyed by warships. Therefore, Argentina requested Ghana to adopt urgently the necessary measures to put an end to this situation. In spite of clear precedents and the unambiguous content of the applicable international rules giving rise to Ghana’s international responsibility, Judge Frimpong, on October 2012, 11 confirmed his previous order for the seizure of Frigate ARA Libertad. Given the fact that the parties had not chosen the same means of settlement, Argentina submitted the dispute to the arbitral procedure provided for in UNCLOS Annex VII, by virtue of Article 287 of the said Convention.4

2  NML Capital Limited v. Argentina (Suit MISC 58/12), In the Superior Court of Judicature in the Commercial Division of the High Court Justice Accra, Submission on behalf of the Republic of Argentina, paragraph 7. 3  Ibid., paragraph 8. 4  Note dated 29 October 2012 from the Argentine Ambassador in Ghana to the Foreign Minister instituting proceedings against Ghana under Annex VII of the UNCLOS.

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Argentine Arguments

Pending the constitution of the Arbitral Tribunal, as provided in Article 290, paragraph 5, of UNCLOS, Argentina requested ITLOS to adopt the following provisional measure: that Ghana unconditionally enables the Argentine warship Frigate ARA Libertad to leave the Tema port and the jurisdictional waters of Ghana, and be resupplied to that end.5 The main reason for requesting the provisional measure is that Ghana’s action produced an irreparable damage to the Argentine rights in question, namely the immunity that the Frigate ARA Libertad enjoys, the exercise of its right to leave the territorial waters of Ghana, and its freedom of navigation more generally. The rights that Argentina requested to be preserved are well established both in the UNCLOS and in customary international law. In its Statement of Claim included in the notification instituting arbitral proceedings, Argentina requests the arbitral tribunal to declare that the Republic of Ghana, by detaining the warship “ARA Fragata Libertad”, keeping it detained, not allowing it to refuel and adopting several judicial measures against it: (1) Violates the international obligation of respecting the immunities from jurisdiction and execution enjoyed by such vessel pursuant to Article 32 of UNCLOS and Article 3 of the 1926 Convention for the Unification of Certain Rules concerning the Immunity of Stateowned Vessels as well as pursuant to well-established general or customary international law rules in this regard; (2) Prevents the exercise of the right to sail out of the waters subject to the jurisdiction of the coastal State and the right of freedom of navigation enjoyed by the said vessel and its crew, pursuant to Articles 18, paragraph 1 (b), 87, paragraph 1 (a), and 90 of UNCLOS. Thus, Argentina requests the arbitral tribunal to assert the international responsibility of Ghana, whereby such State must: (1) immediately cease the violation of its international obligations as described in the preceding paragraph; 5  Argentine Request for the prescription of provisional measures under article 290, paragraph 5, of UNCLOS dated November 14, 2012, paragraph 28. ARA Libertad Case (Argentina v. Ghana), Case No 20, International Tribunal for the Law of the Sea (ITLOS).

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(2) pay to the Argentine Republic adequate compensation for all material losses caused; (3) offer a solemn salute to the Argentine flag as satisfaction for the moral damage caused by the unlawful detention of the flagship of the Argentine Navy, ARA Fragata Libertad, preventing it from accomplishing its planned activities and ordering it to hand over the documentation and the flag locker to the Port Authority of Tema, Republic of Ghana; (4) impose disciplinary sanctions on the officials of the Republic of Ghana directly responsible for the decisions by which such State has engaged in the violations of its aforesaid international obligations.6 Since the celebrated Schooner Exchange case,7 it is clear that a warship enjoys immunity. Furthermore, Article 32 of the UNCLOS confirms a well-established rule of general international law. Ghana, which agreed to the visit of the Frigate ARA Libertad to its port, recognized the warship character of the Frigate ARA Libertad, as well as the immunity that this warship enjoys. In fact, at a hearing called by Judge Frimpong, the legal adviser of the Ghanaian Ministry of Foreign Affairs expressed its full support to and recognition of Argentina’s immunity from the jurisdiction of the Ghanaian Courts as well as the immunity and inviolability enjoyed by the ARA Libertad as a warship, as follows: “It became the Court’s duty in conformity to established principles to release the vessel and to proceed no further in the course”.8

6  Note dated 29 October 2012, paragraphs 6 and 7. 7  The Exchange v. Mc Faddon, 11 U.S. 116 (1812): “It seems then to the Court, to be a principle of public law, that national ships of war, entering the port of a friendly power open for their reception, are to be considered as exempted by the consent of that power from its jurisdiction.  Without doubt, the sovereign of the place is capable of destroying this implication. He may claim and exercise jurisdiction either by employing force, or by subjecting such vessels to the ordinary tribunals. But until such power be exerted in a manner not to be misunderstood, the sovereign cannot be considered as having imparted to the ordinary tribunals a jurisdiction, which it would be a breach of faith to exercise.” pp. 145–146. 8  In the Superior Court of Judicature in the Commercial Division of the High Court Justice Accra held on Tuesday, 9 October 2012 before his Lordship Justice Richard Adjei-Frimpong. Statement by Mr. Ebenezer Appreku, Director of the Legal and Consular Bureau of the Ministry of Foreign Affairs and Regional Integration of Ghana.

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In the case Chung Chi Cheung v. The King the Judicial Committee of the Privy Council quoted the Schooner Exchange case and confirmed that, in the area of immunity: [. . .] in all respects different is the situation of a public armed ship. She constitutes a part of the military force of her nation: acts under the immediate and direct command of the sovereign [. . .] The implied license therefore under which such vessel enters a friendly port may reasonably be construed and it seems to the court ought to be construed as containing an exemption from the jurisdiction of the sovereign within whose territory she claims the rights of hospitality.9 The UNCLOS has not established any exclusion to the immunities of war­ships. The exceptions mentioned in Article 32—in any event do not apply to the question at issue in the present case—are telling in this regard.10 Where­as the flag State bears responsibility for losses or damages caused by its warship to the coastal State, the latter State cannot take any measure against the warship.11 This holds true to such an extent that even if a warship does not comply with the laws and regulations of the coastal State, all that this State can do is to require it to leave its territorial sea immediately.12 The general waiver of a State to its immunity from jurisdiction and enforcement does not affect the immunity of warships whose autonomous character has been recognized by case law and scholars. In fact, the most recent study published on State Immunity stresses the idea that “certain categories of property are regarded as so sensitive that they are under special protection and absolutely immune from execution; that is, they cannot be subjected to execution without express consent of the foreign State concerned”.13 Military property obviously falls within this category.14 In addition, it is important to point out the fact that the US District Court for the Southern District of New 9 

10 

11  12  13  14 

Chung Chi Cheung v. The King, Appeal from the Full Court of Hong Kong, Judicial Committee of the Privy Council, 2 December 1938, 19 Aspinall’s Maritime Law Cases 234, 246; 33 AJIL, pp. 376–384, p. 383. See Bernard H. Oxman, “The Regime of Warships Under the United Nations Convention on the Law of the Sea”, Virginia Journal of International Law, vol. 24 No4 (1983–1984): 809, 816–819. Article 31 of UNCLOS. Article 30 of UNCLOS. Xiaodong Yang, State Immunity in International Law (Cambridge: Cambridge University Press, 2012), 404. Id., 417.

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York having dealt with the same corporate claim against Argentina and having granted an order for attachment of Argentina’s assets in New York excluded military assets.15 Furthermore, the immunity of a warship is not subject to the payment of a caution or a similar measure.

Ghanaian Arguments

The main arguments of Ghana could be synthesized as follows: First, whereas Article 32 of UNCLOS refers to the immunity of warships in the territorial sea, it does not refer to any such immunity when in internal waters. Article 32 provides that “with such exceptions as are contained in subsection A and in Articles 30 and 31 (which are not at issue in the present case), nothing in this Convention affects the immunities of warships and other government ships operated for non-commercial purposes”. In other words, according to Ghana’s view the Convention does not provide any rule or other guidance on the immunities of a ‘warship’ which is present in internal waters.16 Unlike Article 95 of the Convention which stipulates in express terms that “[w]arships on the high seas have complete immunity from the jurisdiction of any State other than the flag State”, Article 32 does not establish any rule with regard to the grant of immunity (or any rule on the waiver of immunity).17 Another Ghanaian argument relates to the interpretation and application of the rules concerning the immunity of a ‘warship’ in internal waters that does 15  NML Capital LTD v. Argentina and NML LTD and EM LTD v. Argentina and Banco de la Nación Argentina, Order of Attachment dated Sept. 12, 2008 (order in NML cases excluding from attachment, inter alia, any “property that is, or is intended to be, used in connection with a military activity, and is of a military character or is under the control of a military or defense agency”.). 16  However, it is relevant to note that some scholars point out an opposite view: “Warships as defined in UNCLOS and military aircraft have complete immunity in the territorial sea, in internal waters and in ports, which are usually located in internal waters”. George K. Walker, “Symposium Paper: The Ins And Outs Of The Modern Port: Where Do We Go From Here?: Self-Defense, The Law Of Armed Conflict And Port Security”, 5 S.C. J. Int’l L. & Bus. 347 (2009): 367. 17  Written statement of Republic of Ghana dated November 28, 2012, ARA Libertad Case (Argentina v. Ghana) Case No 20, International Tribunal for the Law of the Sea, paragraph 11.

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not involve the interpretation and application of the UNCLOS. To the extent that such a rule might exist it could only be found outside the Convention, whether under other rules of customary or conventional international law. Consequently, Article 32 cannot be a legal basis for Argentina’s claim, and therefore neither the Annex VII Tribunal nor ITLOS can establish jurisdiction on the basis of that provision.18 Argentina has also invoked Articles 18(1)(b), 87(1)(a) and 90 of UNCLOS as a basis for its claim. However, in Ghana’s opinion none of these provisions are applicable to the facts of this case. Article 18(1) defines ‘passage’ as navigation through the territorial sea without entering the internal waters of the coastal State or for the purpose of entering or leaving the internal waters. It clarifies the meaning of passage for the purpose of ‘innocent passage’ in the territorial sea,19 without extending that right to the internal waters of a coastal state. Internal waters are an integral part of a coastal state and are therefore not the subject of detailed regulation by the Convention. The coastal state enjoys full territorial sovereignty over internal waters, and any foreign vessel that is located in internal waters is subject to the legislative, administrative, judicial and jurisdictional powers of the coastal State. As set out by Argentina, the ARA Libertad was detained by the authorities of Ghana at the Port of Tema and is thus within the internal waters of Ghana. It was not in Ghana’s territorial sea: Ghana argues that Article 18(1)(b) is therefore not applicable or in dispute and cannot provide a basis for asserting the jurisdiction of the Annex VII Tribunal.20 Secondly, according to Ghana’s position the central issue in relation to this matter concerns the interpretation and application of a waiver of immunity that is found in the bonds. In its ruling on the question of immunity and the extent of the waiver, the decision of the High Court (Commercial Division) of Ghana was based on an interpretation of Argentina’s waiver that was based on judgments of courts in the United States and the United Kingdom. Ghana notes that the Convention contains no rule or provision on the issue of waiver of immunity, and that the matter is entirely unregulated by the Convention.21

18  Ibid., paragraph 12. 19  UNCLOS, Article 19: Meaning of Innocent Passage. 20  Written statement of Republic of Ghana dated November 28, 2012, ARA Libertad Case (Argentina v. Ghana), Case No 20, International Tribunal for the Law of the Sea, paragraph 13. 21  Ibid., paragraph 15.

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Provisional Measure

ITLOS issued an Order that entirely granted the Argentine Request in the following terms: (1) Unanimously, Prescribes, pending a decision by the Annex VII arbitral tribunal, the following provisional measures under Article 290, paragraph 5, of the Convention: Ghana shall forthwith and unconditionally release the frigate ARA Libertad, shall ensure that the frigate ARA Libertad, its Commander and crew are able to leave the port of Tema and the maritime areas under the jurisdiction of Ghana, and shall ensure that the frigate ARA Libertad is resupplied to that end. (2) Unanimously, Decides that Argentina and Ghana shall each submit the initial report referred to in paragraph 103 not later than 22 December 2012 to the Tribunal, and authorizes the President to request such information as he may consider appropriate after that date.22 The main argument was the interpretation of Article 32 of UNCLOS. In fact, ITLOS considered that Article states that “nothing in this Convention affects the immunities of warships” without specifying the geographical scope of its application.23 Along these lines, the Tribunal affirmed that some provisions of UNCLOS may be applicable to all maritime areas, as in the case of the definition of warships provided for in Article 29 of the Convention. Additionally, the Tribunal made a strong statement affirming that a “warship is an expression of the sovereignty of the State whose flag it flies”.24 Furthermore, ITLOS stated that actions taken by the Ghanaian authorities that prevented the ARA Libertad, a warship belonging to the Argentine Navy, from discharging its mission and duties affect the immunity enjoyed by this warship under general international law.25

22  Request for the prescription of provisional measures pending the constitution of an arbitral tribunal in ARA Libertad Case (Argentina v. Ghana) Case No 20, Provisional measures, Order of December 15, ITLOS (2012), paragraph 108. 23  Id., paragraph 63. 24  Id., paragraph 94. 25  Id., paragraph 98.

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Arbitration After the mentioned provisional measure issued by ITLOS, regarding the matter of substance of the ARA Libertad Case, the Arbitral Tribunal was constituted on February 4, 2013 with the intervention of the President of ITLOS, Judge Shunji Yanai in accordance with Article 3 of Annex VII to the UNCLOS. The arbitrators appointed were: Bruno Simma (Germany—President), Elsa Kelly (Argentina), Thomas Mensah (Ghana), Awn Shawkat Al-Khasawneh (Jordania), Bernard Oxman (United States). On May 21, 2013, a first meeting between the parties and the Tribunal was held in order to deal with formal aspects such as the adoption of the Rules of Procedure to supplement Annex VII to UNCLOS; language and venue of the arbitration; procedural timetable (deadlines for filing memorial and countermemorial); fixing dates for oral hearings and witnesses’ evidence. On June 20, 2013, the Ghanaian Supreme Court delivered a judgment along the lines of the said ITLOS’ decision that quashed the orders of interlocutory injunction made on the 2nd of October 2012 by Judge Frimpong against the Argentine warship, as well as the ruling delivered on the 11th of October 2012 by the same judge confirming such injunction order. In fact, the Court stated that “There is no doubt that, under customary international law, warships are covered by sovereign immunity in foreign ports”.26 It also pointed out that all lower courts are obliged to follow and apply the law as clarified in this case. According to Ghanaian Supreme Court’s decision, there should accordingly be no further seizures of military assets of sovereign states by Ghanaian courts in execution of foreign judgments, even if the sovereign concerned has waived its immunity.27 Such judgment triggered the possibility to initiate negotiations between Argentina and Ghana in view to terminate the arbitration on agreed terms. In an effort to reestablish the historical links of friendship between both countries and strengthen the so-called “South-South Cooperation”, Argentina considered that the dissemination of the Ghanaian Supreme Court’s decision at international level constitute sufficient satisfaction to discharge the injury occasioned by the injunction measure over the Frigate ARA Libertad issued by a Ghanaian Tribunal High Court in violation of the international obligation to respect the immunity that enjoys the said warship enjoys, according to Article 32 of UNCLOS as well as the well-established general or customary international rules. 26  Ghanaian Supreme Court, Judgment dated June 20, 2013, 24. 27  Id., 32.

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Conclusions Although this case was initiated due to an unfortunate decision of a judge of a Ghanaian inferior tribunal contrary to international law, it offered the opportunity to reaffirm once again that the means of settlement of disputes instituted by UNCLOS, in particular—ITLOS—continue to be effective and valuable for States Parties. In that sense, it would be positive for States that still have not done so, to consider the acceptance of ITLOS’ jurisdiction as one of the means to solve their disputes concerning the interpretation or application of UNCLOS in the terms of its Article 287.28 At the same time, this case allowed the chance to reaffirm that warships undoubtedly enjoy immunities under international law, in particular under the scope of UNCLOS. In fact, given the rights at stake such reaffirmation is not only useful for the parties involved in the dispute but also for the rest of States Parties and the international community as a whole. Moreover, it led to the reaffirm that UNCLOS sets out the legal framework within which all activities in the oceans and seas must be carried out as the United Nations General Assembly points out annually in its Resolution on Oceans and the Law of the Sea.29 All in all, the termination of the arbitration on agreed terms between both parties formalized before the Arbitral Tribunal on September 27, 2013 reflects the strong commitment of Argentina regarding the international cooperation that constitutes one of the pillars of its foreign policy. In that context, “SouthSouth Cooperation” represents one of the priorities of our country; in particular, it is extremely relevant to emphasize the links between South America and Africa, namely, through Africa-South America Cooperation Forum. Undoubtedly, the termination of this case will contribute to that goal.

28  Currently, more than 30 States Parties have accepted ITLOS’ jurisdiction in the terms of Article 287 of UNCLOS. 29  UNGA Resolution 67/78, preambular paragraph 4.

PART 12 Submarine Cables

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Chapter 42

Submarine Cables and the International Law of the Sea Thomas A. Mensah The importance of efficient and high-speed international telecommunications cannot be overemphasized in the modern age.1 The invention of telegraphy and subsequent developments in the use of the telephone and telecommunications have greatly improved international commercial intercourse and facilitated extensive cultural and social contacts across the seas and continents. Telecommunications have also been of immense strategic importance by providing maritime and naval powers with efficient and secure means of communication needed for the ever widening geographical scope of their operations. Although the development of satellite radio technology has reduced dependence on cable connection in telegraphic and telephonic communication, much of the world’s telecommunication still requires terrestrial and submarine cables.2 The need for more extensive cable connections has become greater as a result of the development of long distance international telephone services. In the last century great strides were made in developing new types of cables and more advanced cable transmission techniques in order to cope with the increasing demands of industry. In particular, the introduction of fibre-optic technology has made possible the production and use of submarine cables with greatly enhanced quality, high reliability and the capacity to ensure greater confidentiality for messages sent via cables. These developments have further underlined the important role that submarine cables play in international telecommunications.3 Today, cables 1 For a brief review of the importance of submarine cables in the modern world, see Douglas Burnett, Tara Davenport & Robert Beckman “Why submarine cables?”, in Submarine Cables, The Handbook of Law and Policy, ed. Douglas R. Burnett, Robert C. Beckman & Tara Davenport (Leiden: Martinus Nijhoff Publishers, 2014), 1–15. 2  The era of submarine transmission cables was inaugurated in 1850, when the first telegraph cables were laid between Dover in England and Calais in France. 3  Although the majority of submarine cables have been developed for the purpose of telecommunications, submarine cables are in fact used for many other purposes. These include cables used to explore and exploit marine natural resources (cable oil and gas platforms); cables for the production of alternative energy (off shore wind farms and tidal

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provide a necessary and basic infrastructure for the “global superhighway”, the network that connects economises, peoples and cultures of the world in a way that could hardly be imagined as recently as two decades ago.4 To meet the ever increasing need for better and faster telecommunications, extended and highly sophisticated fibre-optic submarine cables networks have been constructed across the oceans and around the continents. In addition to the major “long-haul” systems which link the continents, high capacity “festoon systems” are now being deployed along the coastlines of many countries and these serve as a relatively simple and inexpensive means of providing state-ofthe-art communications, especially in the developing countries.5 In their continuing efforts over the years to improve the efficiency and security of the submarine cable systems, States and organizations engaged in the laying and operation of submarine cables have contended with a number of difficult problems. Two of these deserve special mention in this connection. The first of the problems relates to the freedom of the owners and operators to lay and route submarine cables in the most appropriate places,without having to face unnecessary hindrances and interference from the coastal States. The freedom of owners and operators to lay and route cables depends largely on the extent to which their right to lay and maintain cables in the areas of the sea most suitable for the purpose is recognised and accepted by States. Cable owners and operators also need to be assured that submarine cables which have been laid will be adequately protected against damage, especially damage arising from other users of the seas. These two concerns are closely inter-related. Recognition and acceptance of the right to lay and maintain submarine cables is necessary to enable governments and other bodies and persons engaged in the cable industry to deploy cables in the most suitable places and at the most reasonable cost. But the mere acceptance of the right to lay and operate submarine cables is not enough. Governments and operators also need to be convinced that the coastal States concerned are able and prepared, and have the means and expertise, to take the measures needed to protect current generators), cables for the conduct of marine scientific research (as cabled ocean observatories and ocean monitoring systems; cables used as international High Voltage Direct Current power cables between States; and submarine cables used for military purposes. 4  There can be no doubt that the great arterial lines of telegraphs have become indispensable for the circulation of the political life blood so necessary to maintain the vitality of our modern State system” T. Twiss, Submarine Telegraph Cables XLIX, XI The Nautical Magazine (November 1880), 884. 5  In the 1956 Commentary on the draft articles of the 1958 Convention on the High Seas (1956), the International Law Commission clarified that the term “submarine cables” “applies not only to telegraph and telephone cables, but also to high voltage power cables” Commentary Draft Articles 27.

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cables in position in different areas of the sea against the hazards to which these cables are exposed. Protective measures are particularly needed at the beginning and at the end of the cable networks - in the relatively shallow areas of the territorial seas of States. In these areas the major threats to submarine cables are from ‘external aggression’ i.e. hazards that emanate from outside the cables themselves. Some of these hazards, such as submarine landslides, abrasion from current or wave action, ice scour and fish bites, are the result of natural phenomena.6 But by far the greater proportion of these hazards are due to non-natural causes. In most cases, the major culprits are other users of the sea, especially persons engaged in fisheries activities, such as trawl fishing and shell-fish dredging. These are activities that can best be regulated by the coastal State, generally through the adoption of national legislation, supplemented by effective administrative and judicial measures of implementation and enforcement.7 States have the right and power to adopt laws and regulations on the laying of sub-marine cables either in sea areas within their jurisdiction or by persons who are subject to their jurisdiction. For any regime to guarantee effective protection for cable systems, it must satisfy two conditions. The first condition is that the right to lay and maintain submarine cables in the most appropriate areas of the sea should be clearly recognised and accepted by the coastal States concerned; and the second condition is that the relevant coastal States must be able and prepared to take the measures needed to protect the cables, after they have been laid. In other words, the States concerned must be willing and able to take the legislative and related measures not just to recognize the right of owners and operators to lay and maintain submarine cables but also to provide to cables in position the requisite protection against damage or injury from all possible sources. These two conditions are closely inter-related.

The Right to Lay Submarine Cables

The right of States to lay and operate submarine cables in different maritime zones is governed by the international law of the sea. The subject is dealt with in a number of international conventions and treaties on the international 6  See Lionel Carter, Submarine Cables and Natural Hazards in Burnett, Beckman & Davenport, op. cit. 7  The greater part of the “external aggression” faults to submarine cables occur in water depths of less than 100 meters where adequate penalties may reasonably be expected to provide the incentive to the operators fishing and other vessels to exercise greater caution in their activities and thus reduce the possibility of damage to submarine cables.

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law of the sea. The most important of these instruments are the 1958 Geneva Convention on the High Seas,8 the 1958 Convention on the Continental Shelf 9 and the 1982 United Nations Convention on the Law of the Sea (The 1982 Law of the Sea Convention).10 The 1958 Geneva Conventions asserted the right of all States to lay and operate submarine cables in the high seas and on the continental shelf.11 The relevant provisions of the 1958 conventions are repeated in the 1982 Convention on the Law of the Sea. The 1982 Convention further elaborates on the provisions of the 1958 Conventions. The 1982 Convention also articulates the law applicable to the laying of submarine cables in the exclusive economic zone, which is a new maritime zone established by that convention. Between them, these three conventions set out the general principles of international law regarding the right of States (and their nationals)12 to lay and operate submarine cables in the various areas of the sea.

The Right to Lay Submarine Cables in the Territorial Sea

In the territorial sea, there is no general right for other States to lay submarine cables. International law, as set out in the Convention on the Law of the Sea, grants full sovereignty over the territorial sea to the coastal State, much in the same way that the coastal State enjoys sovereignty over its land territory and internal waters. As the Convention puts it, “the sovereignty of a coastal Stated extends, beyond its territory and internal waters to an adjacent belt of sea described as the territorial sea”.13 The sovereignty of the coastal State extends to the ‘bed and subsoil’ of the territorial sea. Although the Convention grants the right of innocent passage in the territorial sea to ships of other States, this does not include an absolute freedom for foreign States to lay submarine cables in the territorial sea of another State. The same is true of archipelagic 8  1958 Convention on the High Seas, adopted on 29 April 1958, 450 UNTS 82. 9  1958 Convention on the Continental Shelf, adopted on 29 April 1958, 499 UNTS 311. 10  United Nations Convention on the Law of the Sea adopted at Montego Bay on 10 December 1982 21 ILM 1261 (1982). The 1982 Convention supersedes the two 1958 conventions, as between States that are parties to them and also to the 1982 Convention. 11  Article 26 of the 1958 Convention on the High Seas and article 4 of the 1958 Convention on the Continental Shelf. 12  See note 33 below. 13  Article 2, paragraph 1 In the Commentary on the draft Articles of the 1958 Convention on the Territorial Sea and Contiguous Zone, the International Law Commission stated: “The right of the coastal State over the territorial sea do not differ from the right of sovereignty which the State exercises over other parts of its territory” Vol. II, p. 265.

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waters of an archipelagic State.14 The sovereignty of the archipelagic costal State in the archipelagic waters is equally exclusive. In the words of the Convention, the sovereignty of the coastal archipelagic State extends to archipelagic waters. Sovereignty over the archipelagic waters exists “regardless of their depth or distance from the coast”.15 In the territorial sea, the coastal state has the plenitude of powers and entitlement to permit or prohibit the laying of submarine cables;and to grant permission to lay cables on such conditions as it may specify.16 This power is normally exercised by the adoption of national laws or appropriate legislative action. Since the territorial sea is under the ‘exclusive jurisdiction’ of the coastal State, any laying or operation of submarine cables in the territorial sea is subject to the approval of the coastal State, and the laying or maintenance of cables may only be undertaken under such terms and conditions as may be specified by the coastal State17 In archipelagic waters, the coastal State exercises the same measure of sovereignty as it does in the territorial sea.18 The only difference is that, in archipelagic waters, the Convention requires a coastal State “to respect existing submarine cables” and to “permit the maintenance and replacement of such cables, upon receiving due notice of their location and the intention to repair or replace them.19

The Right to Lay Submarine Cables in the Exclusive Economic Zone

The 1982 Convention on the Law of the Sea provides that all States have the right to lay submarine cables and pipelines in the exclusive economic zone of any State.20 The exclusive economic zone is a new zone established by the 1982 Convention. It is a zone between the old territorial sea and the ‘high seas’ proper. In the new zone, the coastal State enjoys ‘sovereign rights’ in relation inter alia to the exploration and exploitation of living or non-living natural 14  Article 49, paragraph 1. 15  Ibid. 16  Article 79(4) of the 1982 Convention expressly reserves “the right of the coastal State to establish conditions for cables (and pipelines entering its territory or territorial sea”. 17  The only limitation on the “exclusive right” of the coastal State in its territorial sea or archipelagic waters is the right of innocent passage and, where applicable, the right of transit passage but neither the right of innocent passage or transit passage includes the right to lay submarine cables. 18  Article 49 of the 1982 Convention. 19  Article 51, paragraph 2, of the 1982 Convention. 20  Article 58(1) of the 1982 Convention.

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resources and the preservation and protection of the marine environment. The exclusive economic zone is, strictly speaking, not part of the high seas.21 The 1982 Convention on the Law of the Sea expressly declares that all States have the freedom to lay submarine cables and pipelines in the exclusive economic zone of other States.22 However, article 58 of the 1982 Convention states that, this freedom is subject to the relevant provisions of the Convention and other applicable rules of international law.23 In particular, the right of States to lay submarine cables in the exclusive economic zone of another State is conditioned on the obligation on the person or persons exercising the right to “have due regard to rights and duties of the coastal State”. Specifically, States and persons exercising the freedom to lay submarine cables in the exclusive economic zone of a State are required to “comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part (of the Convention)”.24 Thus international law, as established in the 1982 Convention on the Law of the Sea, recognizes the right of all States (and their nationals) to lay and operate submarine cables and pipelines in the exclusive economic zone of other States.25 This freedom includes “other internationally lawful uses of the sea related to these freedoms”, including uses of the sea ‘associated with the operation of submarine cables’.26 Submarine cables cannot be properly installed and maintained without pre-laying survey activities; hence the right to undertake surveys to collect data along the proposed cable route must be accepted as an essential component of the freedom to lay submarine cables. Such surveys help to identify the safest routes for cables in order, among others, to preserve the life-span of the cables, to minimize interference with other marine uses in the area and also to identify potential obstacles and hazards. It is, therefore, reasonable to conclude that cable route surveys are part of the “lawful uses of the sea related to the freedom to lay submarine cables”, which the 1982 Convention declares to be included in the ‘freedom’ to lay submarine cables. It 21  Until the adoption of the 1982 Convention on the Law of the Sea, the term “high seas” was reserved only for the “parts of the sea that are not included in the territorial sea or in the internal waters of State”, Article 1 of the 1958 Convention on the High Seas. The exclusive economic zone is a sui generis area of the sea: it is neither part of the high seas properly so called, but it is also not part of the territorial sea of the State. 22  Article 58, paragraph 1. 23  Article 58, paragraph 2. 24  Article 58, paragraph 3. 25  See note 34 below. 26  Article 58, paragraph 1.

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would thus seem to follow that States and their nationals who are entitled to lay submarine cables in the exclusive economic zone also have the freedom to conduct cable route surveys within that zone.27 But, as noted above, the freedom to lay submarine cables in the exclusive economic zone is not without limits or conditions. States and other persons laying submarine cables States in the exclusive economic zone of another State have a number of obligations under international law. Among these is the obligation to ‘have regard’ to the rights of the coastal State. In particular States and other persons exercising the right to lay submarine cables in the exclusive economic zone are obliged to comply with the laws and regulations of the coastal states adopted pursuant to the Convention.28 In the exclusive economic zone, it is especially necessary that the laying of submarine cables pay due regard to the rights of the coastal state with respect to the exploration and exploitation, conservation and management of the natural resources of the sea in the zone. It follows that States and organizations that undertake cable route surveys in the course of laying of submarine cables are also obliged to pay due regard to these rights of the coastal State and to comply with its laws and regulations related to the exploration and exploitation of the natural resources in respect of which the coastal State has sovereign rights.29

The Right to Lay Submarine Cables on the Continental Shelf

The 1982 Convention on the Law of the Sea provides that all States are entitled to lay submarine cables and pipelines on the continental shelf of any State.30 Here too, it is reasonable to interpret the provision as including the freedom to undertake cable route surveys that are essential for the laying of the cables on the continental shelf. Since submarine cables cannot be laid or operated without pre-laying surveys, it is reasonable to assume that cable route surveys are part of the freedom to lay submarine cables on the continental shelf of 27  This is, of course, on the understanding that the surveys are solely for the purpose of laying submarine cables and are not related to other purposes, for example, the exploration or exploitation of marine resources of the exclusive economic zone. See footnote 30 below. 28  Article 58(3) of the 1982 Convention. 29  This does not apply where surveys are exclusively for the laying of submarine cables, and does not in any way involve activities relating to exploration or exploitation of marine mineral resources in the area. 30  This is almost the same as the equivalent provision in the 1958 Geneva Convention on the Continental Shelf.

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a State.31 And it is also to be noted that this freedom is not without any limits or conditions. States and other persons exercising the freedom to lay submarine cables have certain obligations under international law. Article 79 of the Convention makes it clear that States have the freedom to lay submarine cables on the continental shelf of other States but only “in accordance with the provisions of this article”. Thus, while the article provides that the coastal State on whose continental shelf submarine cables are being laid “may not impede the laying or maintenance” of submarine cables, the same article states that the coastal State has the right “to take reasonable measures for the exploration of the continental shelf . . .”. This means that a coastal State is entitled to take measures that impede the laying of submarines cables or pipelines if such measures are ‘reasonable’ for “the exploration of the continental shelf, the exploration of its natural resources”.32 However, where the laying of submarine cables do not interfere with the right of the coastal State to explore or exploit the natural resources of the continental shelf, other States (or their nationals) will have the right to lay and maintain submarine cables on the continental shelf. It also means that the laws and regulations of the coastal State will apply to the laying of submarine cables only to the extent that the process of laying submarine cables is relevant to, or interferes with, the activities of the coastal State for the exploration or exploitation of the natural resources of the continental shelf.

The Freedom to Lay Submarine Cables in the High Seas

The right of all States to lay submarine cables in the high seas is expressly recognized under the international law of the sea. The 1958 Geneva Convention on the High Seas asserted the right of all States to lay and operate submarine cables in the high seas; and the 1958 Convention on the Continental Shelf also stated that all States have the right to lay cables on the continental shelf.33 31  This is, of course, applicable only to surveys whose purpose is solely for the laying of submarine cables. If surveys are for the purpose, wholly or partly, for the exploration of resources they will be subject to the regime established by the coastal State in exercise of its sovereign rights within the exclusive economic zone. 32  Article 79(2) Although article 79(3) of the 1982 Convention provides that “the delineation of the course” of pipelines is subject to the consent of the coastal State, no such consent is required for the delineation of the course of submarine cables. 33  Article 26, paragraph 1 of the 1958 High Seas Convention and article 4 of the 1958 Continental Shelf Convention.

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These provisions have been incorporated, almost verbatim, into the 1982 Law of the Sea Convention. Article 87 of the 1982 Convention provides that the high seas are “are open to all States, whether coastal or land-locked”. By implication this right is also available to the nationals of all States.34 The Convention then states that freedom of the high seas comprises, inter alia, “freedom to lay submarine cables”, subject to Part IV of the Convention. This freedom is available to all States, coastal as well as land-locked. But even on the high seas, the freedom to lay submarine cables is subject to some conditions. Thus the Convention states that the freedom to lay submarine cables on the high seas is subject to Part VI of the Convention.35 Further, the Convention makes it clear that the freedom of the high sea is exercised “under the conditions laid down by this Convention and by other rules of international law”.36 And article 112 of the Convention, which proclaims the freedom of all States to lay submarine cables and pipelines on the bed of the high seas beyond the continental shelf also provides that this right is subject to the conditions specified in paragraph 5 of article 79. One of the conditions stipulated in paragraph 5 of article 79 is that a State or other person exercising the freedom to lay submarine cables is required to “have due regard to cables and pipelines already in position. In particular, they are required to ensure that the possibilities of repairing existing cables or pipelines shall not be prejudiced”. Similarly article 87 of the Convention, which declares the right of all States to lay submarine cables and pipelines on the bed of the high seas, qualifies the right by stating that “the freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area”. In this connection it is worth noting that article 136 of the Convention declares that the Area (i.e. the the sea-bed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction) and its resources are “the common heritage of mankind”. Article 137 of the Convention states that all rights in the Area are vested in mankind as a whole, and the Authority (The International Seabed Authority) acts on behalf of all mankind. Although the Convention states that “Neither Part XI of the Convention nor 34  “The expression ‘all States’ . . . should not be read restrictively as, in practice, many submarine cables and pipelines are privately owned and are laid by corporations or other private entities. The term therefore refers to the right of States and their nationals to lay cables and pipelines”, ed. Nordquist et. al, United Nations Convention on the Law of the Sea 1982: A Commentary, Volume III (Leiden: Martinus Nijhof Publishers, 1995), 264. 35  Article 87, paragraph 1(c). 36  Article 87, paragraph 1.

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any rights granted or exercised pursuant thereto shall affect the legal status of the waters super adjacent to the Area”, the Convention makes it clear that the laying of submarine cables on the sea floor of the Area, like all other activities, shall be “with reasonable regard for other activities in the Area”.37 Thus, under general international law, all States(and their nationals) have the freedom to lay submarine cables and pipelines in all areas of the sea, with the exception of the areas that are under the “exclusive jurisdiction” of the coastal State, i.e., within internal waters and the territorial sea (including the archipelagic waters) of a State. In these areas the laying and operation of submarine cables is subject to the approval of the coastal state and under the terms and conditions specified by the coastal State.38 In archipelagic waters, the coastal State is required “to respect existing submarine cables” and to “permit the maintenance and replacement of such cables, upon receiving due notice of their location and the intention to repair or replace them.39 As stated above, even in the areas where States and their nationals enjoy the freedom to lay and operate submarine cables, the freedom is hardly without conditions. Thus the right of States to lay submarine cables in the exclusive economic zone, on the continental shelf and even on the high seas is conditioned on the need to “have due regard to rights and duties of the coastal State” and the equal freedom enjoyed by other States.40

The Right of the Coastal State to Regulate the Laying of Submarine Cables in the Territorial Sea

In the territorial sea and archipelagic waters, the laying of submarine cables requires the agreement of the coastal States and is subject to such conditions as the coastal State may impose. In this connection, it is to be noted that the 1982 Convention permits coastal States to extend the breadth of their territorial sea to a maximum of twelve nautical miles. This means that the area of the sea in which other States do not enjoy the freedom to lay cables is much 37  Article 147, paragraph 3. 38  Note 13, supra. 39  Article 51, paragraph 2, of the 1982 Convention It has been suggested that “given the passage of time, this provision may have little practical utility since cables existing at the time UNCLOS entered into force are likely to have been retired” Burnet et al., p. 78. 40  Article 87, paragraph 2, of the 1982 Convention. Pursuant to article 58 (2), article 88 of the 1982 Convention, which reserves the high seas “for peaceful purposes”, is also applicable to the laying of submarine cables in the exclusive economic zone.

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greater now than it was before the 1982 Convention was adopted. As previously noted the territorial sea of the coastal State, in which other States do not have an automatic right to lay submarine cables, has been greatly increased in size by the provision in the 1982 Convention that permits States to extend the limit of the territorial sea to 12 nautical miles from the baselines. Further, in the newly established exclusive economic zone, coastal States do have some power to regulate the laying of submarine cables. And in maritime areas outside the jurisdiction of any State, the new regime of the Area imposes some obligations on States and other persons who exercise the freedom to lay and operate submarine cables. The ability of States and owners of submarine cables to exercise the right to lay and operate submarine cables without undue restraint depends to a great extent on the laws and regulations of the coastal States, and the terms and conditions that the coastal States establish in their laws to regulate the laying and maintenance of cables in their territorial sea. International law, as laid down in the 1982 Convention on the Law of the Sea permit coastal States to adopt laws and regulations which sets out the conditions to be met, and the procedures required, for owners and operators from other Stated to lay submarine cables, and to undertake activities relating to the laying or maintenance of such cables in waters under their jurisdiction. In this regard, it is to be noted that the laws and regulations which a coastal State is permitted to set will differ depending on the area of the sea concerned. For example, while the coastal State has full powers to set conditions within its territorial sea, the right to regulate cable laying operations outside the territorial sea may be subject to some constraints. Thus, in the exclusive economic zone and also in the continental shelf, the competence of the coastal State to regulate the laying and maintenance of submarine cables by other States is restricted. In particular, it is at least arguable that the coastal State is not entitled to subject cable route surveys to regulation under its domestic laws in all cases. This means that cable route surveys should not be treated in all cases as a form of marine scientific research for which the permission of the coastal State is required (and may be refused). Hence cable route survey operations whose sole purpose is to lay out the routes for laying submarine cables that do not enter the territorial sea or internal waters of a coastal State should not be treated as maritime scientific research activities for which the agreement of the coastal State is required pursuant to the 1982 Convention, and such surveys should not, therefore, be subject to the laws and regulations (such as laws and regulations requiring permits) of the coastal State. Laws and regulations of a coastal State which treat cable route survey operations as marine scientific research and subject

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them to the permit requirements under domestic law could pose difficulties for foreign submarine owners or operators of submarine cables. They could be what have been described as “roadblocks to the rapid deployment of new international cable systems”.41 It is, therefore, essential that all States accept the same international regime to govern the surveying, planning, laying and repair of submarine cables in the territorial sea, the EEZ, the continental shelf and the high seas. Owners or operators of submarine cables may also face difficulties in laying submarine cables in territorial sea of a State if there is uncertainty either as to the authority that is entitled to grant permission to lay cables in some parts of the territorial sea or with regard to the laws that are applicable in those areas. This may be particularly so in States with federal constitutions. In some such States, there may be a division of sovereign rights and powers over certain areas of the twelve nautical mile territorial sea, as between the central national government, on the one hand, and the constituent federal states or provincial authorities, on the other hand. In such a situation, there may be some uncertainty regarding which authority is competent to give the necessary authorization to lay or maintain submarine cables, depending on whether the cable laying activity is in what are described as “coastal waters” (where jurisdiction is with the state or province concerned) or in the part of the of the territorial sea where the central (federal) State is the competent authority. Where this is the case, the approval or permit issued by the central government may not be sufficient to permit the laying of cables in the relevant areas of the territorial sea.42 Indeed, in some of these countries, such as the United States and Australia, ratification of an in international convention by the central federal government will not necessarily override the rights of individual state or provincial authorities with regard to certain activities in the coastal waters of the State’s territorial sea, such as the regulation of the laying of submarine cables. For example, in the United States, individual states may claim the right under the Constitution to regulate activities within the parts of the territorial sea which 41  Lipman and Vu, “Building a Submarine Cable: Navigating the Regulatory Waters of Licensing and Permitting”, 56 Submarine Telecoms Forum (March 2011), 21–24, at 21. 42   In the United States, in addition to a permit from the Federal Communications Commission (FCC), the operator of submarine cable may also need the requisite permission of the relevant state authorities, if the cable is intended to land the area of the sea within the jurisdiction of that state. For instance, where a cable is expected to land in the state of California, the operator will need to obtain an Environmental Impact Report as required by the law of the state of California. See A.D. Lipman and N.T. Vu Building a Submarine Cable: Navigating the Regulatory Waters of Licensing and Permitting” (March 2011) 56 Submarine and Telecoms Forum, 21–24, note 40 supra at p. 24.

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lie three nautical miles from their coasts, even when the central government of the State has proclaimed a territorial sea of twelve nautical miles. In such a case, there might be some doubt as to which law (federal or state) is applicable in particular parts of the territorial sea or which authority has the power to authorize and regulate the laying of submarine cables in those areas.43 A similar problem could arise in the archipelagic waters of a State with a federal constitution. Where this is the case, States or persons seeking to lay submarine cables run the risk of lengthy delays and expensive litigation. Thus, in the United States although the federal law states that regulates the laying of submarine cables in US territory requires the operator to obtain a cable landing licence from the Federal Communications Commission (FCC),44 it may be necessary for the operator also to obtain state and local permits, depending on where the cable lands. This is because some states, such as California, have additional requirements, which an operator will have to satisfy. These requirements may include the procurement of an Environmental Impact Report. In some cases, meeting the additional requirement may take some time.

Protection of Submarine Cables in Positions

Submarine cable systems also require effective protection of the cables after they have been laid. As noted earlier, most of the hazards posed to submarine cables emanate from human activity. Owners and operators of cables can, and do, take measures to prevent or minimize the impact of some of these hazards. Over the years much has been done to make the submarine cables less vulnerable to natural and man-made hazards. The methods used include careful route planning to avoid potential conflicts and current or projected activities as well as mechanical method such as additional cable armouring and deep burial of cables into the seabed. But these self-help measures depend, to a considerable extent, on the existence of appropriate legislation, both international and national which ensure the prevention of wilful or negligent damage to cables and, in appropriate

43  For example, in Australia jurisdiction over “coastal waters” (three nautical miles from the coastline) is with state or territory concerned. The national Government exercises territorial sea jurisdiction only over the remaining part of the territorial sea, i.e. the area between the 3 nautical mile coastal waters and the 12 nautical mile limit. 44  As required by the Cable Landing License Act of 1921.

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cases, also enable cable owners and operators to obtain effective redress against those who cause damage to cables or interfere with their operation. There has been an international regime of sorts for the protection of submarine cables for more than a hundred years. This regime is mainly contained in international conventions on the protection of submarine cables. The first of these conventions was the 1884 International Convention for the Protection of Submarine Cables.45 Some of the provisions of the 1884 Convention were adopted and incorporated into the 1958 Geneva Conventions on the High Seas and on the Continental Shelf, respectively. A number of these provisions have now been included in the 1982 United Nations Convention on the Law of the Sea. The purpose of the 1884 Convention, as set out in its Preamble, was “to secure the preservation of telegraphic communications by means of submarine cables” The Convention makes if “a punishable offence” to break or injure submarine cable.46 Additionally, the 1884 Convention imposes the responsibility to repair a broken or injured cable on the owner of the cable who, on laying or repairing his own cable, breaks or injures another cable.47 As stated earlier, the gist of the articles in the 1958 Conventions have been re-enacted in the 1982 United Nations Convention on the Law of the Sea. For example, under article 113 of the Law of the Sea Convention dealing with the “breaking or injury of a submarine cable”, States Parties are required to adopt laws and regulations necessary to provide that the breaking or injury . . . of a submarine cable shall be a punishable offence. The 1982 Convention also requires States Parties to adopt the necessary laws and regulations to provide that anyone who causes a break in or injury to another cable . . . shall bear the cost of repairing the cable.48 However, the 1982 Convention on the Law of the Sea do not include some of the more specific provisions of the of the 1884 Convention. For example, while article 115 of the 1982 Convention, incorporates the substance of article IV of the 1884 Convention (which imposes an obligation on a person responsible for the break or injury to a cable to pay compensation for the costs repairing the cable), the Convention does not include any part of article VII

45  The 1884 Convention was adopted in response to the “widespread appreciation of the value and dependency on submarine telegraph cables”. This compelled governments to come together on several occasions to try to reach agreement on an international regime cables with the ultimate aim of protecting this public good. 46  Article II. 47  Article IV. 48  Article 113 of the 1982 Convention.

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which, in effect, sets out the procedure to be followed in a claim for compensation.49 Similarly the 1982 Convention does not include article X of the 1884 Convention which sets out some important and useful rules on “evidence of violations” which could be useful for the practical application of the provisions of the 1982 Convention. It has been suggested that one of the reasons for the omissions is that these provisions of the 1884 Convention reflect customary international law and are, therefore, applicable even to States that are not Parties to the 1884 Convention.50 There is thus a body of international law for the protection of submarine cables in most areas of the sea. This law, if effectively implemented and enforced by all States, could go a long way to give the protection which submarine cables need. Unfortunately, the situation is not that simple. In the first place, the necessary national legislation may not always be in place; and where there is national legislation, it may not be sufficiently effective either to prevent wilful and negligent damage to cables and or adequate to assure to cable owners and operators the opportunity use the legislation to seek legal redress against those who cause damage to cables or interfere with their operation. National legislation is required under most of the existing international conventions that seek to provide protection to submarine cables. For example, the 1884 International Convention for the Protection of Submarine Cables (the Cable Convention of 1884) includes a provision that gives to owners of submarine cables the right to recover compensation under civil law for damage to cables caused by intentional or negligent acts and omissions of other persons.51 In addition States Parties to the Convention are required to adopt legislation to enforce the penal provisions of the Convention.52 Similarly, the 1982 Convention on the Law of 49  Article VII of the 1884 Convention sets out the procedure to be followed “in order to establish a claim to such compensation”. This involves the drawing up of a statement of a statement, supported by the evidence of the crew, to be communicated to the consular authorities of the State of the cable owner. 50  See Restatement of the Law (Third): The Foreign Relations Law of the United States Vol. 2 (American Law Institute Publishers, 1987) Section 521 Comment f (1986). 51  Article II of the 1884 Convention states that the penal provision in that article is “without prejudice to any civil action for damages”. This provision appears to preserve the ability of the person suffering damage to bring a civil suit to seek compensation. However, in the case of American Tel &Tel Co v. MV Cape Fear, it was held that this provision did not give an implied private civil law remedy to the owner of a submarine cable (763 F. Supp. 97 (DNJ 1991). 52  Under Article XII the Parties “engage to propose to their respective legislatures the necessary measures for insuring the execution of the present Convention, and especially

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the Sea, basing itself on the provisions of article II of the 1884 Convention, also requires States to adopt legislation to protect submarine cables from injury or damage53 However, neither of these conventions have provisions which specify the level of penalties to be imposed on States Parties which fail to meet the conventional obligations. Secondly neither the 1884 Convention nor the 1982 Convention applies to all the submarine cables that need to be protected. The 1884 Convention states that that it is “applicable outside of the territorial waters, to all legally established submarine cables landed in the territories . . . of one of the High Contracting Parties”. However, the 1982 Convention imposes on coastal States the obligation to adopt legislation necessary to prohibit the breaking or injury of a submarine cable “beneath the high seas done wilfully or through culpable negligence”.54 This was presumably intended to respect the vital right of the coastal State to enjoy full sovereignty over its territorial sea. But the effect is that the Convention leaves it to the coastal State to decide to adopt or not adopt laws and regulations covering activities within its territorial sea. Restricting the obligation of the State Party to adopt laws and regulations to those dealing with the breaking of or injury to cables ‘outside of the territorial sea’ arguably means that the prohibitions specified in the Convention, and the powers given to States Parties under the Convention, apply only to submarine cables that are outside of the territorial seas of the States Parties. This would suggest that a coastal State is under no obligation to adopt laws and regulations to protect submarine cables that are in its territorial sea although, such a State is, of course, entitled to adopt such laws in exercise of its sovereignty over the territorial sea. It would seem to follow that the coastal State may choose not to adopt any such laws. It would also follow that when a State Party adopts laws dealing with damage or injury to cables in the territorial sea, it does so only in exercise of its sovereignty over the territorial sea rather than in the discharge any international obligation to do so. Accordingly, it would follow that cables in the territorial sea of a Contracting Party will be protected by the domestic laws of the coastal State, and only to the extent that there are such domestic laws. The consequence is that, if there are no domestic laws, or if the domestic laws are not effective or inappropriate,

for punishing, by either fine or imprisonment, or both, those who contravene the provisions of Articles II, V and VI”. 53  Article 114 of the 1982 Convention. 54  Article 113 of the 1982 Convention.

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submarine cables located in the territorial sea of a State Party to the 1982 Convention will not have the protection that they need for effective operation.55 Another defect of the 1884 Convention is that its provisions are aimed more at punishing persons who cause damage to cables, rather than enabling cable owners to take action to prevent damage before it occurs. Thus, while the 1884 Convention provides for exclusion zones round ships laying cables and around buoys marking damaged cables,56 there are no provision setting out the minimum distance that fishing vessels and other vessels are required to keep away from cables already laid and in operation or from ships engaged in laying submarine cables. In the absence of such a provision, neither State authorities nor owners of cables have a legal right to take any measures to prevent vessels and other operators from working too close to cables, even if there is evidence that such proximity could cause serious damage to the cables. Action can only be taken if a cable is actually damaged.57 Another shortcoming of the Convention is that it does not specify minimum penalties to be imposed by national law for violations of its provisions. The Convention merely stipulates that the punishment for those contravening the provisions of the Convention will be “either by fine or imprisonment, or both”.58 The levels of sanctions for violations are left to be determined by governments in domestic legislation. In the event, violations of the Convention have been treated as misdemeanours in the laws of many States, with the result that the penalties imposed for infringements do not provide a credible deterrent to 55  It appears that the drafters of the 1884 Convention (and subsequent Conventions) assumed that every coastal State would bring submarine cables located within its territorial sea under the legislation that it would adopt to protect submarine cables. In the words of L. Renault, “one cannot imagine a legislator taking measures in relation to the open sea but not for the territory or territorial waters” L. Renault “The Protection of Submarine Telegraphs and the Paris Conference (October–November 1882) in Brussels and Leipzig” International Law Review (Merzbach and Falk, 1884) p. 6. Unfortunately, many countries have done just that. They have only passed legislation to deal with submarine cables in the parts of high seas, i.e. the parts of the sea where they are obliged to enact legislation by the Conventions. 56  Article V and Article VI. 57  Wilfully or by culpable negligence (Article II). 58  Article XII. This is different from the equivalent provision in the MARPOL Convention (1973/78) which has a provision on the penalties to be applied in national law. The provision in MARPOL reads: “The penalties specified under the law of a Party pursuant to the present Article shall be adequate in severity to discharge violations of the present Convention and shall be equally severe irrespective of where the violations occur” (Article 4, paragraph 4).

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those whose activities they are intended to regulate. The penalties for breaking or injuring submarine cables under the laws of many States are not sufficiently severe to deter violations. Indeed it has been suggested that the excessively lenient penalties specified in the legislation of these States have led prosecutors to the conclusion that it is not worthwhile to bring prosecutions, and this is partly responsible for the fact that there have been no criminal prosecution for a violation of the laws in the period of over one hundred years since the 1884 Convention was adopted.59 The Geneva Convention on the High Seas of 1958 reiterated and ampli­ fied the provisions of the 1884 Cable Convention. It declared the right of all States to lay submarine cables in the high seas, subject to reasonable measures. The 1958 Convention on the Continental Sea also included a similar provision on the freedom to lay submarine cables on the continental shelf. The provisions of the Convention apply not just to telegraph cables, as in the 1884 Convention, but also to telephone power cables.60 However, like the 1884 Convention, it has no provisions that can be invoked to prevent activities that clearly are likely to cause damage to cables. Hence, cable owners would not have the right under the Convention to take action until a cable is actually damaged. The provisions of the 1958 Geneva Convention have been incorporated into the 1982 United Nations Convention on the Law of the Sea. However, the 1982 Convention goes further to ensure protection for submarine cables. Like the 1884 and 1958 Conventions, the 1982 Convention requires States Parties to adopt laws and regulations necessary to provide protection for submarine cables. Specifically, article 113 of the Convention requires every State Party to adopt laws and regulations to provide that “the breaking or injury by a ship flying its flag or by a person subject to its jurisdiction of a submarine cable beneath the high seas, done wilfully or through culpable negligence, in such a manner as to be liable to interrupt or obstruct telegraphic communications . . . shall be a punishable offence”. As a significant addition, the article provides that “this provision shall apply also to conduct calculated or likely to result in such breaking or injury”. Action otherwise prohibited under the provision will not be punishable “if the break or injury to a cable is caused by persons who acted merely with the legitimate object of saving their lives or their ship, after 59  The punishment under the legislation of the United States for wilful injury to a submarine cable is a fine of $5000 or imprisonment for two years. For negligent injury the maximum punishment is $500 or three months imprisonment. In Australia the penalty for the intentional breakage of a submarine cable is AUS$2000 or imprisonment for 12 months. For negligent damage the penalty is AUS$1000 or imprisonment for three months. 60  See note 5 above.

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having taken all necessary precautions to avoid such break or injury”.61 But, like the 1884 Convention, the 1982 Convention does not set out any minimum penalties for the failure by States Parties to adopt the legislation required under the Convention. The 1982 Convention also contains provisions on the obligations of cable owners. Article 114 of the Convention provides that owners of submarine cables will be liable for damage caused by them to other cables or pipelines; and article 115 requires States Parties to enact laws and regulations which ensure that owners of ships who sacrifice anchor, net or other fishing gear in order to avoid injury to a submarine cable shall be entitled to indemnity from the owner of the cable, provided that certain conditions are met. The 1982 Convention makes a significant improvement to the law regarding the protection of submarine cables. It gives the power to States to adopt laws and regulations to prevent wilful or negligent damage to cables. And for the first time, it makes it possible for cable owners and national law enforcement authorities to take action to prevent activity that is likely to damage cables. If properly and uniformly applied by all the States which have jurisdiction over submarine cables or over ships and other craft that can cause damage to submarine cables, the 1982 Convention should go a long way towards securing the necessary protection for submarine operation. But the mere adoption of the Convention does not suffice to give submarine cables the protection that it promises. Like most international treaties, the 1982 Convention is not self executing. For its regime to operate as expected the States Parties to the Convention must enact the legislation required under the Convention, and the enacted legislation must present significant disincentives to those whose acts or omissions are likely to cause damage to submarine cables. In addition the States concerned must put in place appropriate mechanisms to ensure effective enforcement of their laws. In particular, provision should be made in the laws to give to law enforcement authorities as well as owners of submarine cables the means not only to seek penal sanctions or civil redress for violations of the law but also to prevent activity that can reasonably be considered as likely to result in such damage. The 1982 Convention has to date been ratified by no less that seventy percent of the States of the world. Although a number of important maritime States have not yet ratified the Convention, most of them have publicly stated that they consider certain provisions of the Convention, including those dealing with the laying of submarine cables, to be declaratory of customary 61  Article 113 of the 1982 Convention.

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international law. It can, therefore, safely be assumed that even States which are not State Parties to the 1982 Convention will have no difficulty in enacting national laws embodying the provisions of the Convention.62 The most important question, however, is whether laws and regulations will be adopted by the states to provide the necessary protection to submarine cables, and whether these laws will be effective. To be effective any legislation must provide realistic opportunities for the state law enforcement authorities and persons affected or likely to be affected by violations to seek legal redress. More crucially, the redress available must be such that it presents a realistic deterrent to would-be offenders. In other words, the sanctions provided for in national legislation should be sufficiently onerous to influence the conduct of the persons whose actions are likely to damage submarine cables and to stimulate action by law enforcement officials who have the responsibility and the discretion to decide whether to take action to prosecute specific violations of the law. If the sanctions for violations are not sufficiently heavy, potential violators will conclude that the benefits of violations will compensate for possible sanctions in the event of prosecution. By the same token, law enforcement officials will be discouraged from taking enforcement measures if they feel that the penalties likely to be imposed for violations do not justify the expenses to be incurred in the detection, apprehension and prosecution of offenders. For example, it has been claimed that the light penalties provided in the United States law for wilful or negligent injury to submarine cables account for the fact that there has been no criminal prosecution for a violation of the law since it was adopted well over a hundred years ago. The punishment under the United States legislation for wilful injury to a submarine cable is a fine of $5000 or imprisonment for two years. For negligent injury the maximum fines is $500 or three months imprisonment. There is no reason to suppose that the situation is any different in other maritime states. Indeed, in some countries there may be no legislation at all. It is also to be noted that the legislation to comply with the 1982 Convention may not provide full protection for submarine cables. The Convention only requires States to adopt legislation to protect submarine cables “beneath the high seas”. Technically that obligation does not apply to submarine cables in the territorial sea and, arguably, in the exclusive economic zone. But, as noted earlier, the need for protection for cables is the same, and possibly greater, in the extended territorial sea and in the exclusive 62  According to Churchill and Lowe, the 1958 Conventions on the High Seas, which was incorporated into the 1982 Convention, was considered to be a codification of existing customary international law as at the time of their adoption. Churchill & Lowe, The Law of the Sea (Huntington: Juris Publishing, 1999), 24.

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economic zone. Hence legislation which applies only to submarine cables in the high seas will be wholly inadequate under the new law of the sea.63 Thus while it is true that international law recognizes the right to lay submarine cables and requires States to establish appropriate legal machinery to provide protection for cables, including criminal sanctions for damage to cables, the protection envisaged may not always be available because of the failure of many States to take the measures expected of them. The main question then is how to ensure that States will discharge the obligations that they assume under international conventions. Normally, a state which fails to discharge its obligations under international law may be called to account by other States if their interests are adversely affected by the failure. On that basis it might be supposed that a State that is Party to the 1884 Cable Convention or the 1958 High Seas Convention or the 1982 Convention on the Law of the Sea may be brought before an international court or tribunal if it fails to adopt the laws and regulations required to protect submarine cables. The 1982 Convention does in fact make provision for the settlement of disputes through dispute settlement mechanisms provided for in the Convention. One of the procedures for dispute settlement under the Convention is the International Tribunal for the Law of the Sea. The others are the International Court of Justice and arbitral Tribunals to be constituted under Annexes VII and VIII to the Convention.64 The courts and tribunals with jurisdiction to deal with disputes under the Convention are competent to deal with disputes concerning the interpretation or application of the provisions of the Convention. But, except in a few special circumstances, these courts and tribunals are only competent to deal with disputes between two or more States Parties. As provided in article 297 of the Convention, one of the disputes that may be referred to a court or tribunal that is competent to deal with such disputes a dispute in which “it is alleged that a coastal State has acted in contravention of the provisions of the Convention in regard to the freedom and rights of . . . the laying of submarine cables and pipelines”. Consequently, it should be possible for one State Party to bring an application against another State Party for its failure to discharge obligations for the protection of submarine cables. Where both the complaining State Party and the state accused of noncompliance have accepted the jurisdiction of the Tribunal, such a dispute can be brought before the Tribunal. But where neither or only one of the States concerned has accepted the jurisdiction of the International Court of Justice

63  See note 7 supra. 64  Article 287.

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or the International Tribunal for the Law of the Sea, the dispute may be submitted to an arbitral tribunal under Annex VII to the Convention.65 Unfortunately this procedure may not be a viable means for enforcing the provisions of the Convention on the protection of submarine cables. In the first place, it is doubtful if action can be brought against a defaulting State by the owner or operator of the submarine cable. It is true that, unlike the International Court of Justice, the International Tribunal for the Law of the Sea or an arbitral tribunal under Annex VII has competence to deal with disputes involving non-state entities. According to the Convention, access to the International Tribunal for the Law of the Sea as well as arbitral tribunals under Annex VII and VIII to the Convention is available to non-state entities in certain cases.66 However, it does not appear that this provision can be invoked by an owner or operator of a submarine cable to bring proceedings against a State Party which fails to discharge its obligations under the Convention. The preferred view is that such an action can only be instituted at the request of a State Party to the Convention. For it appears that, apart from disputes under Part XI of the Convention, the only case in which a non-state entity may bring an action against a State is under article 292 of the Convention relating to the prompt release of a ship. Under that article, the owner of an arrested or detained ship which is registered in a State Party to the Convention can bring an application before the International Tribunal for the Law of the Sea. However, such an application can only be brought “on behalf of the State Party in which the ship is registered.67 The owner or operator of a submarine cable is usually not registered as a ship in any country. In fact the owner may be a consortium of companies which are incorporated in different States. But, even where the owner of the cable is incorporated in a single State, that owner will need to persuade the State in which it is incorporated to bring the dispute before the court or tribunal; and there is no reason to believe that States Parties are willing to resort to international judicial proceedings against another State Party in order to enforce the provisions of the Convention at the 65  Article 287, paragraph 5. 66  Article 291 of the 1982 Convention. 67  Article 292, paragraph 2 of the Convention. In the “GrandPrince” case, the International Tribunal ruled that an application for prompt release under article 22 of the Convention can only be brought by the State in which the ship was registered at the time the dispute is brought. The Tribunal found that it had no jurisdiction to hear the application because it concluded that the “documentary evidence submitted by the Applicant fails to establish that Belize was the flag State of the vessel when the Application was made”.

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request of a private submarine cable operator. In any case, it is unlikely that a court or tribunal will be prepared to assume the difficult task of specifying the precise nature and scope of the domestic legislation that may be considered sufficient to comply with the obligations under the 1982 Convention, considering that there are no precise parameters in the Convention on the nature of the legislation that the a State Party is required to enact. It would thus appear that recourse to the dispute settlement procedures of the 1982 Convention is unlikely to provide an effective means to get States to discharge their obligations regarding protection of submarine cables.

Protection of Cables Against Acts of Terrorism and Other Hostile Acts

Owners and operators of submarine cables also need effective protection of cables from hostile attacks by persons and organizations who are not necessarily interested in the use of the sea for other purposes. For this purpose, the provisions of the 1884 Convention, and even of the 1982 Convention, may not be adequate. It is, of course, true that the 1884 Convention makes it a “punishable offence” wilfully to break or injure a submarine cable. However, there are no provisions in the Convention which remotely address the cases in which submarine cables are attacked not by other users of the sea but by persons who deliberately cause damage or injury to cables as part of a deliberate plan to achieve political or other objectives. And it is doubtful if the provisions of the 1982 Convention on the Law of the Sea on piracy are fully applicable to terrorist attacks against submarine cables. The definition of “piracy” under the Convention seems to require that the person or persons committing the act of depredation must be the crew or passengers of a private ship or private aircraft.68 This would appear to exclude acts committed by persons who operate without a ship. There is also the requirement that the persons who commit the act of depredation are acting for “private ends”69 The question may therefore arise whether persons who cause deliberate damage or injury to cables not for “private ends” but as part of a calculated political objective or on behalf of other persons can be considered as “pirates” under the 1982 Convention. This casts some doubt as to whether the 1982 Convention can safely be used as a

68  Article 101(a)(ii); private gain?] 69  The definition of “piracy” under article 101 of the 1982 Convention speaks of “an illegal act of violence or detention, or any act of depredation, committed for private ends . . .”.

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basis for protecting cables from acts of terrorism or for sanctioning those who commit acts that are prohibited by the Convention. In the light of the many perceived inadequacies in the existing conventions, States have found it necessary and advisable to develop entirely new instruments which address the issue of deliberate damage to ships and other essential installations which do not appear to be covered by the existing instruments. For example, new stand-alone conventions have been developed to deal with unlawful acts against the safety of civil aviation and the suppression of unlawful acts against the safety of maritime navigation.70 The objective of these conventions is to establish a comprehensive regime that ensures that persons who intentionally destroy or damage critical infrastructure for internal civil aviation or international maritime navigation will be punished for their action. These conventions create a cooperative mechanism among the States which agree to be bound by them in order to ensure that any person who commits the offences defined in the conventions will be prosecuted regardless of his nationality and no matter where the offence took place. It may well be that the time has come for the international community to consider the possibility of adopting such an approach for the protection of the vital installation which submarine cables have now become for the international community.

Other Relevant International Instruments

The provisions of other international instruments may be called in aid for the protection of maritime cables, and especially ships engaged in the laying of submarine cables. For example the 1972 Convention on the International Regulations for the Prevention of Collisions at Sea (COLREGS) may be useful in providing protection submarine cables or ships engaged in connection with submarine cables. Rule 3(g)(1) of this Convention provides that a vessel engaged in laying, servicing or picking up a submarine cable (a cableship) is to be regarded as a vessel that is “restricted in its ability to manouevre”. Such a vessel is permitted to use special signals and sounds to other vessels to make them aware of its presence and what it is doing. Power-driven vessels and

70  The various conventions include: 1. The Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation done on 23 September 1971 and its Protocol of 24 February 1988; 2. The Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation done on 10 March 1988 and its Protocol of 2005.

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vessels engaged in fishing are required to keep out of the way of such a vessel.71 However, the COLREGS Convention does not specify a minimum distance that other vessels should keep away from the cable ship. In the absence of such a provision, and unless the coastal or flag State legislation prescribes such a minimum distance, there is no effective protection as the other ships could come as close as they wish so long as there is no actual physical contact. In this connection it is to be noted that the 1982 Convention on the Law of the Sea does not contain any provisions on the protection of cableships. Conclusion It is clear that there are a number of serious gaps in the international law relating to the right of operators to lay and maintain submarine cables without the risk of unnecessary regulation by coastal States or the risk of dangerous or uncomfortable interferences from other users of the sea. It appears unlikely that these gaps can effectively be filled through the existing laws, whether national or international. It would thus appear that the time has come for States and the industry to give some consideration to the possibility of adopting a new legal regime that offers a credible promise to provide a much more stable basis for an industry that has become vital for the life and welfare of modern society. 71  1972 COLREGS Convention, Rule 18.

List of Cases

International Courts and Tribunals

1. The Grisbadarna Case (Norway v. Sweden), 11 UNRIAA 155 (1909), 495. 2. Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. India), arbitral proceedings 08.10.2009 Permanent Court of Arbitration. Still pending, 495, n.1. 3. Piran Bay Maritime Boundary Arbitration (Croatia v. Slovenia) arbitral proceedings 04.11.2009 Permanent Court of Arbitration. Still pending, 495, n.1. 4. Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, ICJ Reports (2012), 624 ff, 78, 85, 86, n.34; 495, n.1; 501, n.18; 506, 507, 508, 509, 510, 541, 545, n.1, 579, n.49. 5. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, ICJ Reports (2009), 213 ff, 185, n.25. 6. Maritime Boundary Arbitration (Guyana v. Suriname), award 2007, ILM 166 (2008), 496, 509. 7. Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, ICJ Reports (2007), 659 ff, 496, 508, 555, n.1. 8. Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrein) Judgment, ICJ Reports (2001), 40 ff, 497, 500, 504, 599. 9. Dispute concerning delimitation of the maritime boundary between Bangladesh & Myanmar in the Bay of Bengal (Bangladesh/Myanmar), Case 16, ITLOS Reports, 4 ff, 86, n.33; 498, n.5; 501, n.17; 505, n.35; 509, 510, 513, 584, n.4; 695, n.34; 696, n.39. 10. Continental Shelf (Libyan Arab Jamahiriya/Malta) ICJ Reports (1985), 13 ff, 499, 506. 11. Land and Maritime Boundary hetween Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, ICJ Reports (2002), 303 ff, 86, n.35; 500, 553, 670. 12. North Sea Continental Shelf cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), ICJ Reports (1969), 3, 508. 13. Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway) Judgment, ICJ Reports (1993), 38 ff, 501. 14. Delimitation of Exclusive Economic Zone and Continental Shelf (Barbados v. Trinidad and Tobago) 27 UNRIAA (2006), 147 ff, 86, n. 32; 501, n.14; 506, 507, 509. 15. Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, ICJ Reports (2009), 61 ff, 501. 16. Maritime Dispute (Peru v. Chile), ICJ Reports (2014), 177 ff, 78, n.19; 501, 509, 520, 524, 529, 563, n.1. 17. Minquiers and Ecrehous (U.K. v. France), ICJ Reports (1953), 47, 661, n.23. 18. Island of Palmas Case (Netherlands v. United States of America), Award of April 1928, (II) UNRIAA 829, 322, n.15; 666, n.48; 671.

752

List of Cases

19. Guiana Boundary case, The Colony of British Guiana v. the United States of Brazil, 6 June 1904, (XI) UNRIAA, 21, 663, n.30. 20. Island of Clipperton Arbitration (France v. Mexico), Arbitral Award of 28 Jan. 1931, 26 AJIL (1932), 390, 322, n.14. 21. Legal Status of Eastern Greenland (Norway v. Denmark) Permanent Court of International Justice1933 P.C.I.J. (ser. A/B) No. 53, 665, n.43. 22. Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia), Judgment, ICJ Reports (2002), 625, 185, n.26. 23. Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rock and South Ledge (Malaysia v. Singapore), Judgment, ICJ Reports (2008), 12, 327, n.28. 24. Land, Island and Maritime Frontier with Honduras (El Salvador v. Honduras), ICJ Reports (1992), 351, 82, n.21; 115, n.17; 119; 120, n.31, 185, n.24. 25. Chagos Islanders v. the United Kingdom, ECHR, Application 35622/04, 331, 332. 26. Militarv and Paramilitary Activities in und aguinst Nicaragua (Nicaragua v. United States of America). Merits, Judgment, ICJ Reports (1986), 14, 122, n.35; 372, n.60; 600. 27. M/V Louisa case (Saint-Vincent and the Grenadines v. Kingdom of Spain) Case 18, ITLOS Reports (2013), 2, 48, 88, 122, n.36; 366, n.31; 486, 597. 28. Fur Seal Arbitration, Proceedings of the Tribunal of Arbitration convened at Paris under the Treaty between the United States of America and Great Britain, concluded at Washington, February 29, 1882, for the Determination of Questions between the Two Governments Concerning the Jurisdictional Rights of the United States in the Waters of the Bering Sea, 16 vols. (Washington DC, Government Printing Oficce, 1895), 598, 600. 29. Case of the Franco-Hellenic Lighthouses, Judgment, PCIJ (17 November 1934): Series A/B no 62; 16th report, E series, no 16, 186, 599, 600. 30. Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, ICJ Reports (1982), 18, 525, n.41; 583, n.3; 593, n.30; 599, 600. 31. The Bay of Fundy case (Moore, International Adjudications, vol. VI, p. 22. 1814), 600, 603. 32. Nuclear Tests (Australia v. France), Judgment, ICJ Reports (1974), 253, 571, n.30; 600. 33. The “Grand Prince” Case (Belize  v.  France), ITLOS, Prompt Release, Judgment (20 April 2001), 6, 604, 746. 34. The Case of the S.S. Lotus (French Republic v. Turkish Republic), judgment of 7 September 1927, PCIJ: Series A No. 10, 78, 79, n.4; 101, 405, 406, 430, 631. 35. Prosecutor v. Blaskic Judgment Case No. IT-95-14-T ICTY Trial Chamber (2000), 148, 412. 36. Case concerning the difference between New Zealand and France concerning the interpretation or application of two agreements, concluded on 9 July 1986 between

List of Cases

37. 38. 39. 40.

41. 42. 43. 44. 45. 46. 47.

48. 49. 50. 51.

52. 53. 54. 55.

753

the two States and which related to the problems arising from the Rainbow Warrior Affair, 20 UNRIAA 215 (1990), 412, n.45. Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, Judgment, ICJ Reports (1974), 3, 15, 83, 523, n.35. Eritrea v. Yemen (II) The Eritrea v. Yemen Arbitration Awards of 1998 and 1999 (Permanent Court of Arbitration Award Series 2005) ILR (1999), 417, 676. Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, ICJ Reports (1978), 3, 677, 678. The “ARA Libertad” Case (Argentina v. Ghana), ITLOS Case No. 20 (Provisional Measures, 15 December 2012), 111, 112, n.6; 121, n.32, 33; 122, 713, 715, n.5; 718, n.17; 719, n.20; 720, n.22; 721. El Salvador v. Nicaragua, Central American Court of Justice (9 Marz. 1917), AJIL, Vol. 11, No. 3 (Jul., 1917), 674–730, 115, n.16. Muscat Dhows Arbitration Award, 8 August 1905, XI RIIA 83, 78, n.3. North Atlantic Coast Fisheries (US/UK) 1910, 82, n.18. Corfu Channel case (United Kingdom v. Albania), ICJ Reports (1949), 4, 79, n.7; 80, n.9; 239. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports (1996), 226, 430, 431. Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, ICJ Reports (1992), 24, 549, n.18. Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic (1977), RIAA, Vol. XVIII, p. 88, para. 183; ILR, Vol. 54, p. 96, 86, n.36; 560, n.69. M/V Saiga case, Saint Vincent and the Grenadines v. Guinea, Prompt Release, ITLOS (1997); Judgement, ITLOS Reports (1999), 10, 87, 365, 486, n.100. Anglo-Norwegian Fisheries Case (United Kingdom v. Norway), ICJ Reports (1951), 116, 81, 82, 118, 149, 583. East Timor (Portugal v. Australia), Judgment, ICJ Reports (1995), 90, 623, n.4. Delimitation of the Maritime Boundary in the Gulf of Maine Area, (Canada/ United States of America) Judgment, ICJ Reports (1984), 246, 509, n.50; 527, n.52; 575, n.39; 588, n.17; 624, n.7. Fisheries Jurisdiction (Federal Republic of Germany v. Iceland) Merits, ICJ Reports (1974), 175, 15, 83, 523, n.35. Affaire du Trail Smelter, N.U. Recueil Des Sentences Arbitrales, Sentence arbitrale du 11 mars 1941, RIAA Vol. III (1950), 3, 623, n.6. Northern Cameroon Judgment, 1963, 600. Avis consultatif sur Responsabilités et Obligations des etats qui patronnent des Personnes et des entités dans le cadre d’activités menées dans la zone internationale des fonds marins, TIDM, Affaire No. 17, (Arrêt de 19 août 2010), 6, 639, n.60.

754

List of Cases

56. Avis sur la Carélie orientale, avis consultatif 1923, CPJI, Série B, no 5, série B, 9, 631, n.38. 57. “Virginia G”, Panama v. Guinée Bissau, Affaire N. 19, TIDM (Arrêt du 14 avril 2014), 384, n.31. 58. Whaling in the Antarctic Case (Australia v. Japan, New Zealand intervening), Judgment of March 31, 2014, see http://www.icj-cij.org/docket/files/148/18136.pdf, 175.



National Courts and Tribunals

Filartiga v. Peña Irala (630 F2d 876; CA2 1980), 267, n.96. Kadic v. Karadzic (70 F.3d 232; 2nd Cir. 1995), 267, n.96. Doe v. Unocal Corp (248 F.3d 915; 9th Cir. 2002), 267, n.96. Ken Wiwa v. Royal Dutch Shell Petroleum Co. et al. (226 F.3d 440; 2nd Cir. 2000), 267, n.96. Amlon Metals Inc. V. FMC Corp. 775 F. Supp. 668 (SDNY 1991), 670, 267, n.97. Sosa v. Alvarez Machain, 542 US 692 (2004), 267, n.98. Buque Prestige Denuncia de delitos contra el medio ambiente y daños en espacios naturales protegidos.—AUDIENCIA PROVINCIAL SECCIÓN NÚM. 1. La Coruña (España)—12/11/2013 (Nº de Recurso: 38/2011, 268, 339, 343. Re Mohamud Mohammed Hashi, Court of Appeal at Nairobi, Judgment by Maraga, J.A. (18th October 2012), 467, n.37. NML Capital Limited v. Argentina (Suit MISC 58/12), Superior Court of Judicature in the Commercial Division of the High Court Justice Accra, Submission on behalf of the Republic of Argentina: para. 7, 714. The Schooner Exchange v. Mc Faddon, 11 U.S. 116 (1812), 716. Chung Chi Cheung v. The King, Appeal, Full Court of Hong Kong, Judicial Committee of the Privy Council (2 December 1938), 19 Aspinall’s Maritime Law Cases 234, 246; 33 AJIL, 376–384, 383, 717. NML Capital LTD v. Argentina and NML LTD and EM LTD v. Argentina and Banco de la Nación Argentina, US District Court for the Southern District of New York, Order of Attachment (Sept. 12, 2008), 718. Prosecutor v. Ayyash et al., Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, STL-11-01, STL AC, (16 Feb. 2011): paras. 83, 85, 407. Castle John and Netherlandsee Stichting Sirius v. NV Nabeco and NV Parafin, ILR (1994): 537 et seq, 408. Trendtex Trading Corporation vs. Bank of Nigeria, Indian Supreme Court judgment citing some observations of Lord Denning M.R. [(1997) 1 Q.B. 529], 413. American Tel & Tel Co v. MV Cape Fear, 763 F. Supp. 97 (DNJ 1991), 739.

Subject Index Access to dispute settlement 108, 745, 747 to living resources 291 n. 84 Activities in the Area 35, 194, 248–249, 254, 256–257, 258 n. 48, 259–260, 264 n. 82, 276, 278, 285–286, 288–289, 293, 612 n. 9, 733–734 Ad-hoc Sea-Bed Committee 276 n. 13, 277 n. 17 Adjacent 11–14, 40–42, 50, 64, 66, 83–85, 115–116, 145–146, 148, 151–152, 154–156, 163–166, 168–169, 171, 173, 214 n. 5, 219, 238, 302 n. 9, 310, 314, 352, 379, 392 n. 51, 411, 450, 479, 498, 500, 504, 520, 529 n. 52, 538 n. 19, 541 n. 26, 542 n. 26, 552, 554–555, 563, 587–588, 589 n. 14, 590, 594 n. 27, 687 n. 2, 689, 692–693, 728 Advisory opinions 646 n. 68, 649 n. 80, 650 n. 81 Agreement 32, 34–35, 38 n. 55, 75–76, 107, 159, 179, 240 n. 36, 243 n. 44, 275, 283, 286 n. 67, 288, 293, 416, 421 n. 57, 430–431, 462, 482, 483 n. 74, 511 n. 51, 534–535, 540, 544–545, 568–571, 578–579, 610–617, 618 n. 31, 620 n. 36, 622 n. 40, 701, 704 n. 16, 705, 706 nn. 23–26, 707 n. 27, 708, 709 n. 34, 711 n. 38, 712 n. 40, 734–735 Amendments 35, 180, 190, 238, 286–287, 290, 333, 412, 476, 515 n. 3, 574, 702 n. 11, 704 Annex II (on the Conservation of Antarctic Fauna and Flora) 185 Antarctica 180, 184, 194, 195 n. 2, 196–202, 203 n. 25, 204–207, 210–212, 215 Applicability 70, 187–188, 191, 240 n. 35, 304, 306 n. 32, 401, 404, 408, 412, 423, 472, 552, 596, 663 Applicants 256 Application 6, 22, 28, 42, 45, 75, 77, 86, 111–113, 128, 130, 133–134, 138, 143, 158, 169, 186, 188, 190–192, 200 n. 18, 208, 214 n. 5, 215–216, 218–220, 222, 224, 229, 237, 242 n. 41, 255–256, 258, 260, 265, 286, 294, 297, 313, 324 n. 15, 331 n. 34, 342, 358–359, 361 n. 10, 362, 371, 377–378, 395,

406–408, 419, 421 n. 57, 422–424, 439, 463, 494, 499–500, 502–503, 516, 518–519, 523, 528–529, 532, 537, 542, 546, 548, 550–553, 556, 563, 564 n. 77, 580, 585 n. 3, 601, 606, 612, 614 n. 13, 617, 631 n. 29, 641, 650 n. 80, 653, 667, 671, 675, 688 n. 3, 701 n. 7, 704 n. 16, 705, 707–708, 711 n. 38, 712, 720–722, 724, 739, 745–746 Arbitral Tribunal 45, 113, 422–423, 509, 600, 602, 676, 678, 701 n. 7, 709, 714, 715 n. 1, 717, 722–724, 745–746 Arbitration 19, 45, 77–78, 324, 400, 412, 414 n. 45, 421–423, 497 n. 1, 504 n. 26, 562, 567, 600, 605, 664, 666, 668–669, 676, 678, 681, 705–706, 708–709, 710 n. 35, 723–724 Archipelagic States 117, 301, 306, 311 n. 53, 729 Archipelagic Waters 35, 40–41, 91, 93, 111, 115–117, 301, 309, 311, 460–462, 473–474, 480 Arctic Ocean 179, 242, 729, 734, 737 Area 5, 11–12, 15–16, 25, 35, 39–40, 50, 65, 69, 72, 75, 78, 83, 91, 97–98, 113–114, 116, 118, 124–125, 148, 155, 165, 185, 192–194, 199, 202–210, 214 n. 5, 215–222, 224–226, 229–232, 237–238, 242, 248–249, 252, 254, 256–257, 258 n. 48, 259–262, 264 n. 82, 267, 274–286, 288–290, 292–295, 297, 305 n. 22, 306, 309 n. 46, 310, 311 n. 54, 313 n. 60, 330, 334, 355, 361–362, 369, 378, 387 n. 33, 388–389, 401, 404, 409, 417, 431, 458, 460–461, 463–465, 478, 481, 485 n. 86, 486, 487 n. 92, 493, 503, 507, 509, 520 n. 17, 522 n. 21, 527 n. 40, 528, 529 n. 51, 531, 533, 535, 539–540, 542–543, 545, 550 n. 14, 556–559, 561–563, 564 n. 77, 565–566, 568, 574, 577, 580–582, 586–587, 590 n. 17, 592 n. 22, 593, 595 n. 28, 612 n. 9, 616, 671, 677–682, 683 n. 30, 685–686, 702 n. 10, 719, 726–728, 730, 733–737, 739 Argentina 4–6, 109, 112, 113 n. 6, 117 n. 20, 123 nn. 31–32, 123 n. 34, 149, 151, 154, 160 n. 10, 163–164, 172–173, 179, 182–184, 187, 188 n. 28, 194, 213 n. 2, 215 n. 6, 218–220, 225, 276 n. 12, 277 n. 16, 375, 715–717, 720–724

756 Arrangements 43, 103, 221, 234 n. 16, 480, 498, 501, 525, 535–536, 567–568, 571, 676–679, 681–684, 686, 701–702 Asia, Asian States 28 n. 24, 30–31, 146, 227–228, 243–244, 318 n. 102, 431, 462, 482 Assessment 113, 204, 225 n. 32, 342, 347, 356, 516, 521–522, 526, 579, 582 Assistance 38, 143, 223, 228 n. 4, 237, 318, 347, 356, 359–360, 464 n. 15, 491–494, 702–703 Atlantic Ocean 24 n. 19, 183, 547, 702 n. 11, 705 Atolls 307 n. 34, 324, 330 AU African Union 466 Australia 16, 73, 97, 146, 148, 160, 177, 179, 184, 189, 207 n. 40, 213–214, 218 n. 24, 219–220, 269 n. 100, 276 n. 12, 303, 316 n. 80, 319, 333, 420, 482 n. 71, 551 n. 19, 602, 736 Authority (International Seabed Authority) 35, 248, 275, 287, 289, 290 n. 79, 610–611, 613, 615, 733 Awards 341, 414 n. 45, 593 Baselines 12–13, 81, 83, 108, 118, 173, 240 n. 35, 242, 302, 303 nn. 13, 15. 304, 305 n. 22, 306 nn. 30–31, 307–310, 316–318, 347, 498–499, 504–506, 513, 541 n. 26, 546, 552, 560, 562, 566–567, 659 n. 1, 661 n. 10, 735 Bay of Bengal 500, 507, 512, 515–517, 521, 526–527, 530, 576 n. 38, 586, 596, 709 Bay of Fonseca 116, 120, 331 Bays 61, 118–119, 150 Bello, Andrés (Latin America) 9–17, 276, 425, 427–428 Benefit of mankind 172, 252, 254, 276, 278–279, 284–285, 293 Biodiversity 76, 180, 207 n. 40, 227, 291–292, 294–296, 611 n. 6 Bolivia 146, 172 Brazil 5, 148, 151, 155–156, 160, 163–164, 172–173, 179, 182–184, 213 n. 2, 276 n. 12, 277 n. 16, 361 n. 14, 362 n. 14, 665 nn. 30–31 Breath 83, 147, 156, 162–164, 171, 173 Cables and pipelines (submarine) 40, 43, 165, 173, 311, 729–731, 733–734, 745 Canada 12, 16, 68–69, 72, 75, 148, 179, 213 n. 2, 228–232, 239–242, 243 n. 44, 276 n. 12,

Subject Index 305–306, 314 n. 65, 377, 390 n. 44, 590 n. 17, 713 n. 44 Caribbean Sea 15, 329 n. 27, 498, 557, 576 n. 38 Cetaceans 178, 180–184, 190–191 Channels 592 nn. 20, 22 Chile 9 n. 1, 10–11, 13–16, 78 n. 2, 117 n. 20, 148, 151, 154–155, 157–158, 160 n. 11, 163–164, 170–172, 179, 183, 184 n. 21, 195 n. 3, 203 n. 26, 204, 213 n. 2, 220 n. 28, 276 n. 12, 287, 305 n. 22, 335, 503, 510–511, 522 n. 21, 526 n. 39, 531–534, 536–543, 545–546, 565–567, 568 n. 9, 569–571, 572 n. 23, 574, 575 n. 33, 576 n. 34, 577–578, 580–584 China 183, 213 n. 2, 236, 245, 280 n. 31, 282 n. 46, 289 n. 78, 294, 323, 330, 462 n. 14, 477, 481, 482 n. 71, 501 n. 7, 592 n. 22, 659–664, 666, 670, 672–675 Claims 5 n. 5, 17, 23, 28, 40, 47, 58, 61, 63, 85 n. 30, 146–147, 152–156, 160, 194–195, 201, 207, 230 n. 7, 264 n. 82, 268, 292 n. 89, 301 n. 1, 302–303, 305 n. 24, 306, 307 n. 38, 308 n. 44, 318, 324 n. 15, 330, 348, 350, 374, 407, 412, 468, 501 n. 7, 505, 507, 511, 529, 539 n. 20, 540 n. 23, 542, 548 n. 3, 566 n. 3, 571–572, 574, 578–579, 581, 585 n. 3, 660, 663, 665, 674, 676, 678, 686, 714 n. 47, 719 Coastal States 14–16, 36, 39–40, 42–43, 62, 71, 84, 90, 92–96, 100, 102–103, 108, 114–115, 117, 119–124, 148–149, 160–164, 167–168, 170, 183, 230, 262, 284, 301 n. 3, 341–342, 345–351, 353–356, 402, 485, 523, 533, 592 n. 22, 593, 726–732, 734–735, 740, 745, 749 Coasts 11, 14, 50, 52, 73, 85, 150, 152–158, 160, 163, 165–166, 170, 182, 230, 315, 320, 459–460, 494, 498–500, 503–505, 507–510, 520, 522–523, 529 n. 52, 538 n. 19, 539 n. 20, 541 n. 26, 550, 554–556, 559, 561–564, 570, 587, 737 Collisions 79, 95, 233 n. 13, 393, 406, 748 Colombia 10, 15, 85–86, 148, 151, 157, 159, 164, 172–173, 182–183, 497 n. 1, 503, 508–512, 541 n. 24, 543 n. 28, 547–552, 554, 556–564, 581 Commission on the Limits of the Continental Shelf 42, 85 n. 30, 287 n. 72, 512, 519 n. 14, 526–527, 529, 650 n. 80, 659

Subject Index Commodities 288 n. 73 Common heritage of mankind 38–40, 49, 63, 247–248, 252–256, 258 n. 48, 262, 264 n. 83, 266, 272, 274–278, 283–287, 289, 293–294, 297, 528, 733 Communications 15, 135, 310 n. 52, 312, 463, 684, 725–726, 737–738, 742 Compensation 131 n. 9, 206, 260–264, 267, 271–272, 283, 343, 345, 348, 350, 414 n. 45, 718, 738–739 Competence 15, 34, 38, 99–100, 102, 160, 183, 192, 208 n. 45, 221 n. 29, 294, 312 n. 57, 313, 361, 383, 390, 394, 408 n. 23, 483, 550, 618 n. 31, 622 n. 40, 625 n. 3, 630–632, 633 n. 38, 634–635, 636 n. 48, 642 n. 60, 646–649, 652–653, 690 n. 9, 697, 701, 702 n. 10, 703, 713 n. 42, 735, 746 Compliance 33, 161, 178, 197, 205, 208, 217, 218 n. 22, 220, 224, 232, 236, 256, 258, 264, 266, 286, 317, 319, 335, 363, 403, 413, 574, 605, 667, 709 Conciliation 18, 45, 137, 527 n. 45, 638, 652, 708, 710, 711 n. 38, 713 Confidential data/information 131, 143, 565 Conflicts 30, 40–41, 184, 244, 320–321, 326 n. 20, 327, 350, 358, 360–361, 363–364, 369, 371–378, 400, 425–427, 429, 436, 737 Consensus 16, 34, 36, 39, 83, 108, 131, 172, 193, 214 n. 5, 215, 221 n. 29, 223 n. 30, 224, 346, 365–366, 415, 447, 464 n. 15, 488, 501, 583, 611, 613–614, 713 n. 42 Consent 21, 22 n. 12, 24 n. 19, 31–32, 45–47, 99, 101, 122, 240, 283, 362 n. 14, 366, 368, 374, 378, 415 n. 46, 422–423, 435, 465, 480, 569 n. 15, 600–602, 605, 679, 708, 709 n. 34, 711 n. 39, 712 n. 39, 718 n. 7, 719 Conservation/management of living resources 15, 34, 37–38, 40, 44, 51, 65–66, 70–71, 75, 97 n. 19, 107, 137, 153, 155–156, 163, 168, 171, 173, 177, 179–182, 184–185, 187, 190–193, 195, 196 n. 8, 199, 207 n. 40, 208, 211 n. 50, 213–217, 219–221, 223–226, 276, 285, 294–296, 324, 379, 534, 650, 700–703, 705 n. 22, 707–708, 712 n. 40, 713 n. 43, 714, 731 Contiguous zone 11–14, 16, 42, 80, 99, 113, 118–120, 147–149, 157, 171, 189, 238, 309 n. 47,

757 367, 375, 401 n. 5, 402, 474, 498–499, 523, 573 Continental Shelf 14, 38, 41–42, 63–64, 84–86, 119, 152–156, 159, 160 n. 10, 161–162, 164, 171, 173, 284, 287 n. 72, 293, 330, 332, 403, 475, 497–503, 506–508, 510–513, 516, 517 n. 9, 518 n. 12, 519 n. 14, 520–530, 533 n. 8, 536, 538, 541–543, 548–554, 556, 561 n. 64, 562–563, 564 n. 77, 568 n. 9, 571, 573, 585–592, 593 n. 24, 596, 650 n. 80, 659–660, 677–678, 688, 696 n. 28, 728, 731–732, 734–736, 738, 742 Contractors 257, 260 nn. 62–63, 261–264, 268, 286 Convention (United Nations Convention on the Law of the Sea, 1982) 5 n. 5, 12, 17, 63, 77, 79 n. 7, 188, 190, 218, 247, 275, 294–295, 308 n. 44, 318 n. 101, 341–342, 359, 362 n. 14, 401, 421 n. 57, 423 n. 59, 472, 515, 536, 540 n. 23, 541, 543, 554, 586, 610, 613, 659, 700, 715, 728–731, 735, 738, 742, 745, 747, 749 Cooperation (International) 37, 243 n. 44, 470, 479–480, 724 Covenant of the League of Nations  649 n. 80 Damage 19, 45, 52, 74, 97, 151, 185, 203–204, 206, 233, 234 n. 16, 238, 243, 249, 252, 258, 260–264, 266–268, 271, 286, 292, 314, 341–342, 344–345, 347–348, 350–356, 363, 405–406, 414, 433, 680, 685, 717–719, 726–727, 737, 738–745, 747–748 Declaration on the Protection of Submarine Cables and Pipelines (1888) 738–739, 743, 745–747 Delimitation 10, 81, 84–86, 114, 119–121, 136, 143, 240, 302 n. 10, 309 n. 46, 313 n. 60, 330, 380, 394, 422–423, 497, 499–503, 504 n. 26, 505–507, 509–513, 515–516, 517 n. 9, 518, 520–527, 529–538, 540–544, 548–557, 559–573, 575–576, 579, 581–588, 590 n. 17, 591–596, 626, 659, 660 n. 4, 666–679, 684 n. 37, 685–686, 688–698 Detention 19, 112, 122–123, 334, 342, 345, 404, 409, 426–427, 440–441, 460–462, 472–473, 475, 486, 489–490, 718

758 Developing States 254, 258 n. 48, 288 Discharge 122, 230, 618 n. 31, 684, 723, 740, 745–747 Disposal of wastes 230 Disputes 4, 31, 33, 45–46, 77, 83, 88, 108, 111, 194–195, 242–244, 248, 320, 328–329, 400, 419, 421–424, 501, 515, 517, 525, 529–530, 552, 584, 591, 595, 606, 611–612, 617, 625 n. 3, 663, 675, 679–681, 700–706, 707 n. 28, 711–715, 724, 745–747 Dispute settlement 45, 46 n. 94, 98, 108, 111, 119, 125, 464 n. 15, 512 n. 55, 517 n. 9, 523, 527, 677, 703, 713, 714 n. 45, 745, 747 Dolphins 178, 180, 184, 191 Drafting Committee (UNCLOS III) 520, 521 n. 19 Drilling 681–686 Dumping 253, 255, 468, 478 Ecosystems 190, 202 n. 24, 235, 290 Ecuador 15–16, 151, 157–159, 160 n. 11, 163–164, 168–173, 183, 276 n. 12, 277 n. 16, 305, 534, 536–539, 541, 545, 568–569, 714 n. 47 Egypt 372 n. 52, 373, 416, 459 n. 3, 483 n. 76 El Salvador 116, 120, 121 n. 31, 148, 155, 160 n. 11, 163–164, 172, 276 n. 12, 277 n. 16, 331 n. 34 Enclosed/semi-enclosed areas 38, 82, 119, 191, 303–304, 305 n. 22, 307–309, 335, 355 Enterprise 35, 283, 285 Environment 34, 41–42, 89 n. 2, 90, 94–95, 103, 107–108, 122, 166, 180–181, 196–197, 199–200, 202–203, 206, 207 n. 40, 208, 210–212, 216, 221 n. 29, 227, 229–230, 232–233, 235–236, 243, 253–255, 258, 260, 262–263, 267, 270, 273, 281, 286, 289–290, 292, 314, 341–342, 344–345, 348, 351–353, 355–356, 365, 383, 389, 391 n. 46, 406, 410, 679–680, 685–686, 715, 730 ,737 Environmental protection 4, 41, 180, 184–185, 194 n. 1, 195–196, 215 n. 9, 233 n. 15, 356, 392 n. 53 Equity 22–23, 29, 37, 344, 402, 502, 513, 521, 526, 552–554, 564, 583, 584 n. 60 Ex aequo et bono (decisions) 552–554, 583, 612 Exclusive Economic Zone (EEZ) 5, 13–14, 15 n. 9, 16–17, 35, 37, 40–43, 63, 83–84,

Subject Index 86, 90–93, 99, 102–103, 108, 119, 160, 180, 182, 190, 229–232, 236, 238, 240–242, 330, 335, 354, 361–362, 367, 382 n. 14, 401 n. 5, 402–404, 460–461, 467 n. 23, 472, 497–498, 500, 507, 520–529, 536, 540 n. 23, 541–543, 548–550, 556, 562–563, 573, 576, 578, 580, 583 n. 58, 660, 677, 678 n. 7, 728–731, 734–735, 744 Exploitation 14, 17, 22, 26–27, 31 n. 31, 35–36, 39–40, 51, 70–71, 74, 83, 93, 153–155, 158, 161, 163, 166–168, 173, 178, 181–183, 187, 191, 208 n. 44, 227, 236, 252, 254, 257–258, 274–279, 283–286, 288, 289–295, 297, 520, 528 n. 49, 529, 534, 573, 580, 678–679, 686, 694, 729, 731–732 Exploration 24 n. 19, 78, 93, 146, 161, 166, 168, 208 n. 44, 257–258, 276–279, 282–286, 288–290, 293–294, 599, 676, 678–679, 681, 684–686, 729, 731–732 Fauna 157, 167, 180, 185, 191, 199, 227, 291 Final Act (UNCLOS III) 42, 150, 171, 214 n. 5, 307 n. 33 Fisheries 12, 15, 51–76, 81–84, 108, 146–147, 150, 153–154, 156, 159, 167, 173, 220–221, 222 n. 30, 224, 225 n. 32, 226, 466, 467 n. 23, 468, 525 n. 35, 545, 557, 567, 571, 575, 577–581, 585, 700–702, 703 n. 16, 704–706, 710, 713 n. 42, 727 Fishing 13–14, 28, 43, 50–52, 60–61, 66–71, 75–76, 83–84, 89, 91, 108, 153–158, 163, 168–171, 180, 207, 208 n. 45, 218, 220–227, 310–311, 329, 352, 365, 402 n. 8, 404, 410, 458–459, 463, 465–468, 478, 484, 488, 534, 548 n. 3, 563, 577–578, 701 n. 7, 705–706, 713, 714 n. 47, 727, 743, 749 Fishing vessels 68, 169–170, 218, 221, 225, 701 n. 7, 741 Fish stocks 73, 75–76, 107, 701, 703 Flag States 96, 98, 102, 122, 221 n. 29, 346–347, 349, 356, 368, 411, 484–485, 489–490, 746, 749 Flora 157, 185, 191, 199, 227 Food and Agriculture Organization 614, 702 France 6 n. 7, 18, 32, 46, 78, 130, 146, 171, 179, 184 n. 21, 195 n. 3, 203 n. 26, 204–205, 206 n. 38, 207, 213 n. 2, 214 n. 5, 216 n. 14, 219, 276 n. 12, 282 n. 46, 289 n. 78, 305,

759

Subject Index 324–325, 327–329, 334, 352, 355, 375, 408, 414, 438, 469 n. 33, 504 n. 26, 602, 606 n. 14, 666, 669, 672 Freedom of navigation 39–41, 52, 89–95, 97, 99, 102–103, 122, 123 nn. 33, 35. 125, 155, 163, 166, 229 n. 6, 232, 238 n. 28, 242, 244, 301, 312, 359–360, 362–368, 378, 402, 404, 410, 573–574, 717 Freedom of the high seas 78, 156, 274–275, 733 General Assembly (United Nations)  37 n. 53, 38, 81, 247, 280 n. 31, 294, 480, 483, 494 n. 122, 700, 702 General Assembly resolutions 254 Genuine link 87–88 Geographically disadvantaged States 729 Germany 32, 83, 84 n. 27, 188 n. 28, 195 n. 3, 203 n. 26, 213 n. 2, 232, 282, 321 n. 6, 469 n. 33, 526 n. 38, 533 n. 8, 552–553, 585 n. 1, 611, 614, 615 n. 19, 723 Good faith 19, 356–357, 518, 532 n. 3, 569 n. 15, 677, 683–684 Greece 188 n. 28, 213, 306, 679 Grotius, Hugo 10, 18–33, 36, 38–49, 50 n. 10, 52, 54 n. 19, 56, 58, 61–62, 89–92, 146, 194, 253, 363 Group of 77 (UNCLOS III) 280, 281 n. 40 Gulfs 52, 116, 120, 182, 331, 354, 373, 375, 399, 410, 458–460, 464–466, 477–481, 482 n. 73, 483, 486, 511 n. 50, 529 n. 52, 562, 577, 590 n. 17, 688 n. 3 Hamburg 458, 497, 610, 612–613 Harbours 28, 122 Harmful effects of activities in the Area 286 Harvesting 40, 208 n. 45, 216, 221, 223–225 Hearings 539, 601, 607, 723 Highly migratory species 191 High sea 14, 92, 107, 146, 229, 302, 354, 728–730, 732–734, 736, 738, 740, 742, 744–745 Historic bays 114 n. 11, 118–119 Historic title 119–121, 498, 663–664 Honduras 82 n. 21, 116, 120, 121 n. 31, 155, 164, 187 n. 24, 277 n. 16, 329, 331 n. 34, 498–499, 504 n. 21, 510–511, 557–558, 564, 576 n. 38

Hot pursuit, right of, 367 Human life, protection 201 Ice-covered areas 230, 314 n. 65 Iceland 15, 83, 108, 182–183, 231, 233, 243, 276 n. 12, 305, 332, 525 n. 35, 527 n. 45 I ICRW International Convention for the regulation of Whaling 177–179, 185, 193 IHO International Hydrographic Organization 192 ILC International Law Commission 33, 67, 73, 79, 87, 112, 115, 117, 120, 167, 188, 259 n. 53, 262 n. 77, 268, 281, 409, 425, 430, 474, 499, 516, 535 n. 12, 622 n. 38 IMCO Intergovernmental Maritime Consultative Organization 87, 354 Immunity 112–113, 122–123, 265, 363, 371, 401, 408 n. 24, 412, 414–419, 423–424, 717–723 IMO International Maritime Organization 231, 346, 365, 382 n. 14, 431, 473, 475 n. 29, 476 n. 31, 614 India 23, 27, 30 n. 31, 31 n. 31, 48 n. 2, 49, 89 n. 1, 102, 148, 213 n. 2, 244, 276 n. 12, 282 n. 46, 289 n. 78, 305, 332, 334, 399–404, 407–408, 410–412, 415, 417–424, 462 n. 14, 481, 482 n. 71, 497 n. 1, 507 Indian Ocean 28 n. 24, 31 n. 31, 102, 183, 223 n. 30, 330, 333–334, 410, 459, 464, 477, 479–480, 483, 703 n. 16, 705, 710 Indigenous people 228, 244 Individuals 30 n. 31, 249–250, 400, 409, 468 n. 31, 475, 736 Indonesia 117, 187 n. 26, 301 n. 1, 303–305, 309 n. 47, 310–311, 313, 316–319, 329, 462 n. 14 Innocent passage 42, 80, 91, 92 n. 8, 93–94, 96, 100, 103, 114–116, 119, 121–122, 156, 229 n. 6, 231, 242, 302 n. 10, 303–304, 306 n. 31, 309, 311–312, 317–318, 721, 728 Inspection 194 n. 1, 196 n. 8, 197, 214–215, 217–226, 237, 343 Inspectors 102, 217, 220–224, 225 n. 34, 226 Installations 44, 173, 234, 368 n. 30, 391, 394, 406, 450, 680, 748 Internal waters 11, 40, 42, 82, 90, 99, 111–125, 146, 229, 236, 238–239, 240 n. 35, 241–242,

760 302, 306 n. 30, 309, 318, 349, 367, 460–462, 471, 473, 480, 720–721, 728, 734 International Court of Justice 15, 45, 77, 82, 159, 177, 241 n. 38, 279, 329, 374, 421, 423, 432, 498, 500, 505 n. 29, 515, 524, 531, 533, 534 n. 9, 547 n. 1, 548, 565, 572, 573 n. 28, 577 n. 39, 580, 583 n. 59, 584 n. 60, 585, 599–600, 602, 604, 663, 701 n. 7, 708 n. 32, 709, 710 n. 35, 745–746 International Law Commission 33, 67, 73, 79, 87, 112, 115, 187, 120, 167, 259 n. 53, 262 n. 77, 268, 281, 409, 425, 430, 474, 499, 516, 535 n. 12, 622 International Seabed Authority 35, 248, 275, 287, 289, 290 n. 79, 610, 611, 613, 615, 733 International Tribunal for the Law of the Sea (ITLOS) 5, 35, 45, 77, 248, 282, 287 n. 72, 367, 386 n. 31, 420, 421 n. 57, 488, 497, 514, 517 n. 9, 576 n. 38, 586, 599–600, 610–615, 616 n. 21, 619, 620 n. 36, 622 n. 40, 623, 646 n. 68, 649 n. 80, 701 n. 7, 713 n. 42, 715, 717 n. 5, 745–746 Iran 375, 687 n. 2, 690 Irak 373, 375 Ireland 50, 184 n. 21, 213 n. 2, 255, 269 n. 100, 324, 326 n. 20, 420, 511 n. 51, 562 n. 69 Islands 108, 116 n. 17, 120 n. 30, 158, 187 n. 24, 219, 288, 302–303, 305 n. 22, 307–309, 318, 320–322, 324–337, 388 n. 38, 458, 500, 503 n. 20, 504–505, 507, 534, 547, 556, 562, 570, 661–664, 666–673 Israel 99 n. 25, 101 n. 32, 359–360, 372, 376–378, 414, 426 n. 6 Italy 32, 171, 188 n. 28, 189 n. 33, 203 n. 26, 213 n. 2, 276 n. 12, 282, 324, 328, 400–401, 403–404, 407, 410, 412–413, 415, 417–424, 665 IWC International Whaling Commission 193 Jamaica 12, 107, 164, 172, 282, 301 n. 1, 307 n. 38, 308 n. 41, 309 n. 46, 317, 557–558, 563 Japan 64, 67–72, 75, 148–149, 177–179, 181–183, 184 n. 21, 187, 189, 213 n. 2, 244, 276 n. 12, 282 n. 46, 289 n. 78, 303, 306 n. 29, 308, 310 n. 50, 312 n. 58,

Subject Index 318 n. 102, 330, 377, 420, 462 n. 14, 469 n. 33, 481, 482 n. 71, 659–664, 668, 670–675 Jurisdiction 15, 19, 27, 32, 38–43, 46 n. 94, 50, 66–67, 74, 77–79, 82–84, 87, 90, 92–94, 108, 113–114, 116, 118, 122, 124–125, 146, 151–152, 154–160, 163–166, 170–173, 179, 189, 194, 196–202, 204–205, 206 n. 38, 207–212, 214 n. 5, 218–219, 221, 222 n. 30, 224, 226, 230, 236, 247, 249, 258, 263–264, 268–270, 273–279, 284, 288, 293–296, 310 n. 51, 312 n. 57, 313, 314 n. 69, 320, 328, 332, 345, 352, 356–357, 359, 363, 366, 368 n. 30, 378, 381 n. 10, 386 n. 29, 401–402, 404, 406–412, 415–419, 422–424, 427–428, 431–432, 436, 461 n. 10, 462–463, 465, 468–469, 471 n. 1, 473–474, 476, 483, 485, 494, 502, 505–506, 511, 518 n. 10, 525 n. 35, 527–528, 534, 539, 541, 542 n. 26, 544, 549, 559, 572 n. 21, 573, 577, 581–582, 588, 590 n. 17, 600, 602–603, 605, 671, 702 n. 10, 715, 717–722, 724, 727, 729, 733–736, 742–743, 745 Jus cogens 266, 272, 287 Korea 67 n. 6, 213 n. 2, 244, 283 n. 46, 289 n. 78, 367 n. 27, 462 n. 14, 469 n. 33, 482 n. 71 Land-based sources of pollution 108, 434–435, 480 Landlocked States 43, 458 Latin American States 16, 156, 159–161, 166, 169, 172 Law of the Sea 4–6, 9–17, 27, 29, 31–33, 34 n. 37, 35, 37–41, 43, 45, 46 n. 94, 49, 62–64, 68 n. 8, 71 n. 15, 73, 76 n. 25, 77–78, 79 n. 7, 83–85, 87–89, 91, 92 n. 8, 93–94, 97, 99, 101, 107, 111, 112–113, 115, 117, 124, 125, 128 n. 5, 133, 136, 145, 153–154, 156, 159, 163, 165, 169, 171–172, 180, 188–190, 193–194, 206, 218, 229, 233, 240, 243, 247–249, 255 n. 31, 275, 276 n. 15, 277, 279–282, 283 n. 46, 285, 287 n. 72, 289, 290 n. 79, 292 n. 93, 294–296, 301, 308 n. 44, 320, 328, 341–342, 346–347, 349, 358–359, 361, 362 n. 14, 364, 367, 371, 377–378, 381 n. 10, 386 nn. 29, 31. 392 n. 52, 401, 402 n. 7, 408 n. 24, 417, 420,

Subject Index 421 n. 57, 422–425, 458, 460, 472, 474 n. 20, 476 n. 33, 488, 497, 499, 501 n. 7, 514–516, 517 n. 9, 524 n. 29, 531, 536, 538–541, 543, 554, 565, 569 n. 16, 572, 573 n. 27, 574, 576 n. 38, 578–580, 581 n. 54, 583–584, 586, 590, 594 n. 26, 599–600, 604, 606, 610–615, 616 n. 21, 619, 620 n. 36, 622 n. 40, 623, 625 n. 3, 646 n. 68, 649 n. 80, 659, 680, 688 n. 3, 700, 701 n. 7, 705–706, 713 n. 42, 715, 717 n. 5, 720 n. 17, 721 n. 20, 724, 728–733, 735, 738, 742, 745–747, 749 League of Nations 11, 77, 148, 150, 193, 548 n. 4, 649 n. 80 Lebanon 409, 490 Liability 203, 206 n. 39, 208, 238, 258, 260–263, 267–268, 270–272, 286 n. 65, 342–343, 345, 348, 350, 402 Liberia 276 n. 12, 277 n. 16, 368 n. 35, 459 n. 4, 484 n. 79 Licenses (permits) 51, 69, 108, 169–170, 220 n. 27, 225, 335, 338, 467 n. 23, 719 Living marine resources 702 Living resources 14, 34, 37–38, 44, 73, 155, 163, 171, 173, 180, 184, 191–192, 195–196, 208, 211 n. 50, 212, 214 n. 5, 216–217, 220–222, 224–225, 291 n. 84, 293, 347, 349, 459, 528 n. 49, 678, 700–701, 707 Limits of national jurisdiction 38, 43, 172, 247, 274–279, 284, 733 Limits of the Area 284 Malaysia 310–311, 329, 462 n. 14, 475 n. 24 Malta 84, 172, 274–275, 276 n. 12, 277 n. 16, 331, 368 n. 35, 506 n. 30, 508, 561 n. 64, 573 n. 28, 590 nn. 17–18, 591 n. 19 Manganese 275 Malta 84, 172, 274–275, 276 n. 12, 277 n. 16, 331, 368 n. 35, 506 n. 30, 508, 561 n. 64, 590 nn. 17–18, 591 n. 19 Mankind 19, 22, 26 n. 21, 27, 29, 38–39, 49, 63, 90 n. 4, 167, 172, 247–248, 252–256, 258 n. 48, 262, 264, 266–267, 272, 274–279, 284–287, 293–294, 297, 528, 733 Marine environment 34, 42, 89 n. 2, 94–95, 103, 107–108, 122, 166, 180, 227, 229–230, 232–233, 235–236, 253–255, 258, 260,

761 262–263, 281, 286, 289–290, 292, 314 n. 64, 341–342, 348, 351–353, 355–356, 383, 389, 406, 679–680, 685–686, 715, 730 Marine mammals 180, 186, 190, 228 Marine resources 13, 15, 31 n. 31, 54 n. 19, 156, 168, 459, 702 Marine scientific research 94, 122, 220, 285, 291 n. 86, 292–293, 735 MARPOL 95–97, 231 n. 8, 237, 242 Maximum sustainable yield 75, 181 Mexico 148, 154, 162–164, 172–173, 179, 182–183, 277, 325, 328, 666, 669 n. 52, 672 n. 65, 710 n. 36 Migratory species 168, 180, 191 Mineral resources 159, 196, 208 n. 44, 244, 278, 281, 282 n. 46, 285, 289 n. 78, 290, 293, 5950 n. 28, 678 Mining 35, 38 n. 55, 45, 247–252, 254–255, 258, 262, 274, 282, 289–290, 292 Monitoring 217, 221 n. 29, 259 n. 53, 612 Moratoria periods 183 resolutions 183 Nationality 79, 87–88, 194, 199, 202, 206–207, 210–211, 251, 256–257, 258 n. 49, 259, 286, 364, 407, 461 n. 10, 487, 748 National jurisdiction 27, 38–40, 43, 122, 154, 172, 184, 189, 247, 263–264, 269, 274–279, 284, 288, 293–296, 506, 702 n. 10, 733 Natural resources 14, 33, 41, 93, 152, 154–157, 161–165, 173, 184, 193, 316, 354–355, 362, 402, 478 n. 48, 537, 539 n. 20, 557, 576, 588, 680, 725, 731–732 Nautical mile 11–14, 147, 152, 154–155, 157–158, 160, 163–165, 170, 173, 230, 240 n. 35, 315, 320, 328, 330, 336, 345, 359, 401 n. 6, 410 n. 30, 500, 502, 511, 520–521, 526–529, 532–536, 538, 540–542, 545, 551, 555 n. 35, 556, 561–562, 564 n. 77, 568, 570–571, 572 n. 22, 573, 575–578, 581–582, 659–661, 734–737 Navigation 24, 31 n. 31, 37, 39–43, 50, 52–53, 57, 60–62, 79–80, 89–99, 101–103, 115, 121–123, 125, 129, 135, 137, 146, 148, 153–155, 163–164, 166, 173, 227–233, 234 n. 16,

762 235–238, 240–244, 257, 271, 301, 304, 306, 311–317, 322, 338, 343, 346, 349, 351, 359, 361–363, 366, 376, 380, 384–396, 399, 402, 404–406, 408, 410–411, 413, 424, 437–449, 451–454, 456–457, 471, 478, 548 n. 3, 556, 573, 574, 579, 580, 651, 717, 721, 748 Netherlands 18, 23, 32, 46, 48 n. 2, 49, 84 n. 27, 149, 171, 179, 203 n. 26, 213 n. 2, 329, 482 n. 71, 552, 585 n. 1, 668–669, 696 n. 28 New Zealand 16, 108, 177, 179, 184, 189, 191, 213 n. 2, 225, 414 n. 45, 420 Nicaragua 78 n. 1, 82 n. 21, 85–86, 116, 120, 123, 148, 154, 163–164, 172, 187 n. 25, 277 n. 16, 329, 374, 497 n. 1, 498–499, 503, 504 n. 21, 508–512, 543, 547–551, 555, 557–558–559, 561–563, 564 n. 77, 576 n. 38, 581, 601–602, 690 n. 8 Nigeria 86 n. 35, 459 n. 4, 467, 478, 482, 484 n. 79, 508 n. 37, 554–556, 672 Non-governmental organizations (NGOs)  349 Norway 16, 179, 181–183, 184 n. 21, 213 n. 2, 219, 231–232, 242, 276 n. 12, 305, 482 n. 71, 503, 527 n. 45, 556, 561 n. 64 OAS Organization of American States 5, 170 Off-shore facilities 499, 577 Oil/gas reserves 679 Oil pollution 263, 348, 353 Outer limits 659 Pacific Ocean 68 n. 8, 72 n. 17, 239, 330, 660 n. 4, 661 n. 9, 703, 705 n. 22, 712 n. 40, 713 n. 43 Panama 150–151, 154–155, 163–164, 172–173, 183, 190 n. 34, 213 n. 2, 228, 239, 243, 305, 368 n. 35, 386 n. 31, 558–559 Papua New Guinea 97, 307 n. 34, 309 n. 47 Passage 21 n. 12, 22, 26 n. 21, 29, 39, 41–43, 50, 56, 79–80, 91, 92 n. 8, 93–94, 96, 100, 102–103, 108, 114–116, 117 n. 20, 119, 121–122, 156, 158, 228–229, 231, 236–242, 244 n. 46, 301, 303, 306, 309, 311–313, 314 n. 67, 315, 317–318, 362–363, 381–384, 394, 444, 516, 593, 721, 728 Permanent Court of Arbitration 421, 600, 605, 676 n. 1, 678 n. 8, 705 n. 21, 706 n. 24, 709 n. 33

Subject Index Permanent Court of International Justice 77, 101, 262 n. 77, 324 n. 15, 407, 665 Permits (Licenses) 177–178, 180, 182, 185–187, 200, 309 Peru 15–16, 78, 148, 151, 155, 157–158, 160, 163–164, 170–173, 179, 182, 213 n. 2, 276 n. 12, 277 n. 16, 305, 503, 510–511, 522 n. 21, 526 n. 39, 531–534, 536–546, 565–567, 568 n. 10, 569, 570–574, 575 n. 33, 576 n. 34, 577–578, 580, 582, 584 Philippines 117, 301 n. 1, 303–304, 307 n. 37, 309 n. 47, 311, 314 n. 68, 316, 317 n. 89, 318, 323, 330, 462 n. 14, 482 n. 71 Pipelines 40, 43, 165, 173, 310–311, 729–734, 743, 745 Piracy 38, 44, 101, 244, 321, 364–365, 399, 403, 406, 407–410, 413, 415, 424–455, 458–459, 464–488, 490–494, 747 Pirate ships or aircraft 364 Poland 149, 213 n. 4, 276 n. 12, 282 n. 46, 289 n. 78 Pollution 38–39, 44, 94, 96, 109, 122–123, 165, 173, 190, 208, 210 n. 48, 228, 229 n. 6, 230–231, 233, 234 n. 16, 236–237, 243, 253, 255, 260, 263, 306 n. 30, 313, 314 n. 65, 341–342, 346, 348–353, 355–356, 382, 384–387, 389, 395, 405, 410, 651 Ports 14, 92, 99, 102, 112, 114, 117–118, 121–124, 145, 225, 243, 244, 270, 326, 365, 455, 651, 720 n. 16, 723 Port States 93, 96, 356 Privileges and immunities 61–617, 622 n. 40 Prompt release of vessels and crews 746 Prospecting 256–258, 286, 288–290 Protection of the marine environment  94–95, 103, 122, 180, 253–255, 258 n. 48, 260, 383, 389, 730 Regional organizations 434, 480, 701 Regulations 31 n. 31, 32, 42, 93–94, 95 n. 12, 96, 100, 108, 112, 114, 117, 122, 147–148, 166, 173, 180, 182, 201, 208–210, 229 n. 6, 231–232, 233 n. 13, 236 n. 25, 237–238, 256, 258, 262–263, 272, 286, 288–290, 312 n. 55, 346, 351, 355, 363, 367–368, 401, 413 n. 38, 612 n. 9, 719, 727, 730–732, 735–736, 738, 740, 742–745, 748–749

Subject Index Res communis 28, 145 Research 38, 41, 44, 64, 69, 72, 75, 77, 94, 97 n. 21, 122, 147, 166–167, 173, 177, 182–183, 186–189, 196, 202 n. 24, 203, 209, 215, 220–224, 236, 247, 276, 279, 282, 285, 289 n. 78, 291 n. 86, 292–293, 295–296, 467, 534, 599–600, 679, 726, 735 Reservations 5, 33, 85, 219, 231, 242, 415 n. 46, 545 Resources 13–17, 22, 24, 31–35, 37–41, 44, 51, 54 n. 19, 66, 73–74, 91, 93, 107, 152–157, 159–166, 168, 171–173, 180, 182, 184, 191–193, 195–196, 207–208, 213, 214 n. 5, 216–217, 220, 222, 224–227, 244, 247, 252, 262, 274–279, 281, 283–285, 288–295, 297, 303, 316, 318–319, 336, 346–347, 349, 352, 354–355, 362, 402, 410, 459, 468, 478 n. 48, 509, 528 n. 49, 534, 537, 539 n. 20, 557, 573, 576, 580, 588, 593 n. 24, 595 n. 28, 676–678, 680–681, 700–702, 707, 730–733 Responsibility and liability 260 Revenue/s 39–40, 169, 520, 528 n. 49 Ridges 290, 528 Right of visit 218 n. 21, 364, 366, 367 n. 27, 374, 465 n. 19, 473 Rock 108, 290, 325, 330, 337–338 Rules of the International Tribunal for the Law of the Sea 649 n. 80 Russian Federation 181, 236, 238, 282 n. 46, 289 n. 78, 713 n. 43 Salvage 270, 672 Sampling 292 Santiago Declaration (1952) 15–16, 305 n. 22, 535, 537, 539 n. 20, 540–541, 544–545, 568–571, 575, 579 Scientific evidence 71, 74–75, 217, 230–231 Scientific research 44, 94, 122, 166–167, 173, 177, 182, 186–187, 189, 196, 202 n. 24, 203, 209, 215, 220–224, 276, 279, 285, 291 n. 86, 292–293, 679, 726, 735 Sea-Bed Disputes Chamber 45, 248, 256, 267, 611, 612 n. 9 Seabed mining 38 n. 55, 45, 247, 249, 252, 254–255, 258, 262, 292 Search and rescue 232, 233 n. 13, 235, 243 Sedentary species 293

763 Seizure 99, 169–170, 366, 367 n. 27, 432–433, 461, 463, 465 n. 19, 469, 474–475, 480, 716, 723,748, 749 Semi-enclosed seas 38 Settlement of disputes 4, 33, 45, 420 n. 55, 421 n. 57, 422 n. 58, 424, 515, 525 n. 35, 700–701, 703–705, 706 nn. 23–24, 27, 707 n. 28, 711 n. 39, 712 nn. 39–40, 715, 745 Ships 14, 24 n. 19, 28, 40–42, 44, 69, 79, 88, 93–97, 99–102, 113, 114 n. 11, 121, 123, 150, 177, 179, 187, 189, 199, 202, 207–209, 211 n. 50, 222, 227–228, 229 n. 6, 230–231, 239, 253, 303–305, 311–315, 318, 322, 341, 344, 346–348, 350–351, 362–364, 373, 384, 404, 406, 409, 728, 741–743, 746–747, 749 South Africa 148, 179, 182–183, 184 n. 21, 203 n. 26, 213 n. 2, 219, 459 n. 3, 463, 483 n. 76 Southern Ocean 177–179, 183, 185, 187, 192–193 Sovereign immunity 122, 415, 723 Sovereign rights 41, 160, 164, 166, 173, 232, 278, 284, 349, 351, 354, 402, 533, 558, 588, 605, 665, 729, 731, 736 Sovereignty 11, 14, 17, 23–24, 26, 28 n. 24, 34, 36, 38–39, 44–45, 49–50, 52–53, 54 n. 19, 56–63, 65–67, 79, 82, 90, 108, 111–112, 114–117, 120, 122, 124–125, 145–146, 154–161, 163–166, 170, 173, 194–195, 201, 207, 211, 214 n. 5, 218–219, 232 n. 11, 239, 253, 265, 277, 284, 301, 303–305, 307–308, 310 n. 51, 317–318, 320, 325, 327–329, 331–332, 334, 338, 351, 354–355, 415–416, 485, 499, 510, 524, 531, 534, 538 n. 19, 539 n. 20, 541, 542 n. 26, 544, 547–549, 558 n. 51, 561, 564, 572 n. 24, 588, 600, 605, 609, 659 n. 2, 660–661, 663, 664 n. 29, 665, 667, 669–674, 683, 721–722, 728–729, 740 Spain 23, 24 n. 19, 27–28, 32, 46, 56, 58–59, 90, 123 n. 36, 213 n. 2, 268, 270, 277 n. 16, 305, 329, 331, 333, 343, 345, 348, 469 n. 33, 599, 607 Special circumstances 85–86, 120, 498–500, 552, 745 Special interests 278, 288 Species 13, 22, 154, 168, 178–180, 182, 185, 187, 190–191, 199, 200 n. 17, 208, 213,

764 216–217, 225 n. 32, 291, 293, 467 n. 23, 592 n. 22, 621 Statute of the International Court of Justice 241 n. 38, 500, 524, 604 Stocks 70–76, 107, 179–181, 467 n. 23, 654, 701, 703, 705, 706 n. 23, 707 n. 27 Straddling stocks 705, 706 n. 23 Straits 4, 27, 37, 39, 41–43, 61, 79–80, 91, 93–94, 101, 115, 121, 150, 229 n. 6, 237, 239–242, 301, 302 n. 10, 304, 306 n. 31, 312, 314 n. 64, 318 n. 101, 362, 373, 382 n. 14, 392 nn. 52–53 Submarine cables 40, 43, 165, 173, 310, 579, 741–749 Territorial integrity 363, 683 Territorial sea 5 n. 5, 11–12, 14, 41–42, 80–81, 83, 90–91, 93–94, 96, 100, 111–120, 122–123, 125, 145–152, 154, 156–157, 159, 160–164, 166, 171–173, 189, 219, 229 n. 6, 231, 236, 238, 240, 301–303, 308–309, 311, 312 n. 55, 314, 318, 320, 332, 337, 347, 351, 352–353–355, 363, 367, 388, 401, 402, 411, 460–463, 465, 471–474, 480, 485, 497–500, 503–504, 506, 517 n. 9, 523–524, 528, 536, 541–542, 552, 562, 572–574, 583, 719–721, 727–730, 734–737, 740–741, 744 Third United Nations Conference on the Law of the Sea 4, 32, 172, 190, 279, 514, 519 n. 15, 524 n. 29, 538–539, 541, 572, 578, 590 n. 17, 611 Traffic 38, 44, 94–96, 100, 231, 238, 315, 364 Traffic separation schemes 95, 315 Transfer of technology 283 Transit passage 39, 41–43, 91, 93–94, 103, 108, 115, 121, 229 n. 6, 239–240, 241 n. 37, 244 n. 46, 301, 362 Tribunal (International Tribunal for the Law of the Sea) 5, 35, 45, 77, 248, 282, 287 n. 72, 367, 386 n. 31, 420, 421 n. 57, 488, 497, 514, 517 n. 9, 576 n. 38, 586, 599–600, 610–615, 616 n. 21, 619, 620 n. 36, 622 n. 40, 623, 646 n. 68, 649 n. 80, 701 n. 7, 713 n. 42, 715, 717 n. 5, 745–746 Truman proclamation 14, 65, 68–69, 73, 152, 154, 156, 159–160, 165 United Kingdom 65 n. 2, 79, 83, 84 n. 27, 171, 184 n. 21, 195 n. 3, 204, 213 n. 2, 218–220,

Subject Index 255, 269 n. 100, 276 n. 12, 282, 333–334, 336, 482 n. 71, 525 n. 35, 562 n. 69, 721 United Nations Conference on the Law of the Sea 4, 32–33, 172, 190, 279, 281, 362 n. 16, 514, 519 n. 15, 251 n. 29, 538–539, 541, 572, 578, 590 n. 17, 611 United States 736–737, 744 Uruguay 146, 148, 163, 172–173, 183, 187, 188 n. 28, 200, 213 n. 2, 223 n. 30, 277 n. 16 Use of force 22, 229 n. 6, 359–360, 363, 374, 377 n. 77, 378, 423, 465, 487–488 Venezuela 10, 164, 172–173, 182, 329–330, 625 n. 5 Versailles Treaty (Treaty of Peace, 1919)  117 n. 20, 674 Vessels 43, 50, 60, 66, 68, 78–79, 92–94, 96–97, 99–103, 114, 117 n. 20, 121–122, 123 n. 33, 124–125, 145–146, 148, 158, 163–164, 166, 169–170, 204, 207 n. 40, 208–209, 210 n. 48, 211 n. 50, 217, 220–221, 222 n. 30, 224–226, 228, 230–233, 236–237, 241–242, 244 n. 46, 346, 351, 355, 359–361, 363, 364 n. 23, 366, 367 n. 27, 368, 371–372, 374–378, 405, 410, 413, 427, 429–430, 433, 436, 464, 465 n. 20, 467 n. 23, 468, 473, 476, 478, 481, 484–486, 489, 494, 574, 701 n. 7, 717, 718 n. 7, 741, 748–749 Vienna Convention on the Law of Treaties  186, 404, 518, 521, 569 Visit, right of 218 n. 21, 364, 366, 367 n. 27, 374, 465 n. 19, 473 Warships 80, 101–102, 112–113, 122–123, 231, 237, 238 n. 28, 239, 339 n. 14, 311–313, 358 n. 2, 361, 363, 413, 425, 427, 429, 431–434, 436, 473–474, 480, 494, 716, 719–720, 722–724 Water column 284, 536 Weapons 62, 90, 93, 99–103, 123 n. 36, 222 n. 30, 223 n. 30, 224, 311, 362 n. 14, 364–366, 368–369, 432, 475, 487–488 Whales 13, 51, 177–182, 184–187, 216 Whaling 75, 154, 157, 177–187, 189–191, 193, 207 n. 40, 544 WB World Bank 251