The International Law of the Sea [3 ed.] 110842421X, 9781108424219

Table of contents :
1 The Law of the Sea in Perspective
2 Baselines and Related Issues
3 Marine Spaces Under National Jurisdiction 1 - Territorial Sovereignty
4 Marine Spaces Under National Jurisdiction - II Sovereign Rights
5 Marine Spaces Beyond National Jurisdiction
6 Maritime Delimitation
7 Conservation of Marine Living Resources
8 Protection of the Marine Environment
9 Conservation of Marine Biological Diversity
10 Marine Scientific Research
11 Maintenance of International Peace and Security at Sea
12 Land-Locked and Geographically Disadvantaged States
13 Peaceful Settlement of International Disputes
14 Looking ahead

Citation preview

The International Law of the Sea Third Edition This new edition has been fully revised to include up-to-date coverage of essential issues of the international law of the sea. Covering a number of new and important issues, such as the headline debate of migrant movement across the seas, and the de light of the living

South China Sea

resources

and

finition of islands in

Arbitration, it also includes chapters on conservation of marine

biological

diversity,

protection

of

the

marine

environment,

and

international peace and security at sea, as well as building further on such topics as the impact of climate change on the oceans. A precise and readable book, with many and tables,

The International Law of the Sea

figures

continues to be the best choice for students

wanting to understand the law of the sea.

YOSHIF UMI

TANAKA

the Sea at the Faculty of Law, University of Copenhagen. He books: 2019),

fic Focus on the Law of is the single author of five

is Professor of International Law with Speci

Predictability and Flexibility in the Law of Maritime Delimitation A Dual Approach to Ocean Governance The International Law of the Sea The Peaceful Settlement of International Disputes The South China Sea Arbitration (2006; 2nd edition,

(2008),

(2012; 2nd edition, 2015),

University Press, 2018) and widely in the

fields

(Cambridge

(2019). He has published

of the law of the sea, international environmental law and peaceful

settlement of international disputes.

The International Law of the Sea Third Edition

Yoshifumi Tanaka University of Copenhagen

University Printing House, Cambridge CB2 8BS, United Kingdom One Liberty Plaza, 20th Floor, New York, NY 10006, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia 314 321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi 110025, India –

–

79 Anson Road, #06 04/06, Singapore 079906 –

Cambridge University Press is part of the University of Cambridge. It furthers the University s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. ’

www.cambridge.org Information on this title: www.cambridge.org/9781108424219 DOI: 10.1017/9781108545907 First edition © Cambridge University Press 2012 Second edition © Yoshifumi Tanaka 2015 Third edition © Yoshifumi Tanaka 2019 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First edition published 2012 Second edition published 2015 7th printing 2018 Third edition published 2019 Printed in the United Kingdom by TJ International Ltd, Padstow Cornwall 2019 A catalogue record for this publication is available from the British Library Library of Congress Cataloging-in-Publication Data

Names: Tanaka, Yoshifumi, author. Title: The international law of the sea / Yoshifumi Tanaka, University of Copenhagen. Description: Third edition. | Cambridge, United Kingdom : Cambridge University Press, 2019. | Includes bibliographical references and index. Identifi ers: LCCN 2018053995 | ISBN 9781108424219 (hardback) | ISBN 9781108440103 (paperback) Subjects: LCSH: Law of the sea. | BISAC: LAW / International. Classifi cation: LCC KZA1145 .T36 2019 | DDC 341.4/5 dc23 LC record available at https://lccn.loc.gov/2018053995 –

ISBN 978-1-108-42421-9 Hardback ISBN 978-1-108-44010-3 Paperback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

Dedicated to my teachers, Lucius Ca

flisch, Hugh Thirlway and Tetsuo Sato

Let the heavens rejoice, let the earth be glad; Let the sea resound, and all that is in it. Psalm 96:11

Brief Contents

Preface page List of Figures List of Tables List of Abbreviations Table of Cases Table of Treaties and Instruments xvii

xix

xx

xxi

xxiv

xxx

PART I THE DIVIDED OCEANS: INTERNATIONAL LAW GOVERNING JURISDICTIONAL ZONES 1 1 The Law of the Sea in Perspective 2 Baselines and Related Issues

3

53

3 Marine Spaces Under National Jurisdiction I: Territorial Sovereignty 4 Marine Spaces Under National Jurisdiction II: Sovereign Rights 5 Marine Spaces Beyond National Jurisdiction 6 Maritime Delimitation

94

145

186

236

PART II OUR COMMON OCEAN: PROTECTION OF COMMUNITY INTERESTS AT SEA 279 7 Conservation of Marine Living Resources 8 Protection of the Marine Environment

281 322

9 Conservation of Marine Biological Diversity 10 Marine Scientific Research

vii

432

404

viii Brief Contents

11 Maintenance of International Peace and Security at Sea 12 Land-Locked and Geographically Disadvantaged States 13 Peaceful Settlement of International Disputes 14 Looking Ahead Index

544

538

493

451 479

Contents

Preface page List of Figures List of Tables List of Abbreviations Table of Cases Table of Treaties and Instruments xvii

xix

xx

xxi

xxiv

xxx

PART I THE DIVIDED OCEANS: INTERNATIONAL LAW GOVERNING JURISDICTIONAL ZONES 1 1 The Law of the Sea in Perspective 1 Introduction

3

3

1.1 General Considerations

3

1.2 Functions of the Law of the Sea

4

1.3 Two Paradigms in the Law of the Sea

2 Marine Spaces in the Law of the Sea

5

7

2.1 Scope of the Oceans in the Law of the Sea 2.2 Typology of Marine Spaces

3 Sources of the International Law of the Sea 3.1 Formal Sources 3.2 Material Sources

7

7

11

11 18

4 Principles of the International Law of the Sea 4.1 Principle of Freedom 4.2 Principle of Sovereignty

22

22 24

4.3 Principle of the Common Heritage of Mankind

25

5 The Codification of the Law of the Sea 26 5.1 The Hague Conference for the Codification of International Law (1930) 5.2 The First UN Conference on the Law of the Sea (1958)

28

5.3 The Second UN Conference on the Law of the Sea (1960) 5.4 The Third UN Conference on the Law of the Sea (1973

ix

31

– 1982)

32

26

x Contents 6 Outline of the UN Convention on the Law of the Sea 6.1 General Considerations

37

6.2 Principal Features of the Convention

7 Development After UNCLOS III 7.1 General Considerations

37

38

40

40

7.2 Adoption of two Implementation Agreements

41

7.3 De facto Amendment of the LOSC Through Meetings of States Parties 7.4 Development of the Law of the Sea Through International Organisations

2 Baselines and Related Issues 1 Introduction 53 2 Baselines 54

2.1 Normal Baselines

2.3 Juridical Bays

53

54

2.2 Straight Baselines

56

63

2.4 Historic Bays

67

2.5 Bays Bordered By More Than One State 2.6 River Mouths 2.7 Ports

71

72

73

74

3.1 Nature of the Problem 3.2 De

finition of an Island

74 75

3.3 Rocks for the Purposes of Article 121(3)

77

3.4 Customary Law Nature of Article 121 3.5 Reefs

84

85

4 Low-Tide Elevations 4.1 Identi

43

46

8 Conclusions

3 Islands

41

87

fication of Low-Tide Elevations

87

4.2 Case Law Concerning Low-Tide Elevations

5 Conclusions

88

90

3 Marine Spaces Under National Jurisdiction I: Territorial Sovereignty 1 Introduction 94 2 Internal Waters 95

2.1 Spatial Scope of Internal Waters 2.2 Legal Status of Internal Waters

95 96

2.3 Jurisdiction of the Coastal State over Foreign Vessels in Internal Waters 2.4 Access to Ports

96

98

2.5 Ships in Distress at Sea

3 Territorial Sea

94

99

102

3.1 Legal Status of the Territorial Sea 3.2 The Right of Innocent Passage

102 104

3.3 The Right of Innocent Passage of Warships

108

3.4 The Right of Innocent Passage of Foreign Nuclear-Powered Ships and Ships Carrying Inherently Dangerous or Noxious Substances

111

3.5 The Rights of the Coastal State Concerning Innocent Passage

113

3.6 The Obligations of the coastal State Concerning Innocent Passage

4 International Straits

116

4.1 Legal Framework for International Straits Prior to 1982

116

116

xi Contents 4.2

Typology of International Straits Under the LOSC

4.3

International Straits Under Part III of the LOSC

4.4

International Straits Outside the Scope of Part III of the LOSC

4.5

The Right of Transit Passage

4.6

Rights and Obligations of Coastal States Bordering Straits

4.7

Customary Law Character of the Right of Transit Passage

4.8

Non-suspendable Innocent Passage

4.9

Legality of Creation of Bridges in International Straits

5 Archipelagic Waters

117 117 122

123 126 129

129 130

131

5.1

General Considerations

5.2

De

5.3

Archipelagic Baselines

5.4

Jurisdiction of Archipelagic States Over Archipelagic Waters

136

5.5

The Right of Innocent Passage Through Archipelagic Waters

137

5.6

The Right of Archipelagic Sea Lanes Passage

5.7

Rights and Obligations of an Archipelagic State

fi

131

nition of an Archipelago, Archipelagic States and Archipelagic Waters

6 Conclusions

131

133

138 140

140

4 Marine Spaces Under National Jurisdiction II: Sovereign Rights 1 Introduction 145 2 Contiguous Zone 146 2.1

The Concept of the Contiguous Zone

2.2

Coastal State Jurisdiction Over the Contiguous Zone

3 Exclusive Economic Zone

146 147

149

3.1

Genesis of the Concept of the EEZ

3.2

Legal Status of the EEZ

3.3

Sovereign Rights Over the EEZ

3.4

Jurisdiction of Coastal States Over the EEZ

3.5

Freedoms of Third States

3.6

Residual Rights

3.7

Historic Rights and the EEZ

4 Continental Shelf

145

149

151 153 155

158

159 160

161

4.1

Genesis of the Concept of the Continental Shelf

4.2

Spatial Scope of the Continental Shelf

4.3

Criteria for Determining the Outer Limits of the Continental Shelf Beyond

4.4

The Commission on the Limits of the Continental Shelf

4.5

Procedures to Establish the Outer Limits of the Continental Shelf

4.6

Payments Concerning the Exploitation of the Continental Shelf Beyond 200 Nautical Miles

4.7

The Sovereign Rights of the Coastal State Over the Continental Shelf

4.8

Freedoms of Third States

4.9

Protection of Archaeological and Historical Objects Found Within the Continental Shelf

200 Nautical Miles

5 Conclusions

161

162

164 167 168 171

172

174

182

5 Marine Spaces Beyond National Jurisdiction 1 Introduction 186 2 The High Seas 187 2.1

Spatial Scope of the High Seas

187

2.2

Principle of the Freedom of the High Seas

187

186

177

xii

Contents 2.3 Principle of the Exclusive Jurisdiction of the Flag State 2.4 The Nationality of a Ship

189

193

2.5 Problems Associated With Flags of Convenience

195

2.6 Exceptions to the Exclusive Jurisdiction of the Flag State (1): The Right of Visit

198

2.7 Exceptions to the Exclusive Jurisdiction of the Flag State (2): The Right of Hot Pursuit 2.8 Exceptional Measures for Interception of Foreign Vessels on the High Seas 2.9 Regulation of Migrant Smuggling by Sea

3 The Area

216

3.2 Spatial Scope of the Area

217

Raison d ’être of the Principle of the Common Heritage of Mankind

3.4 Elements of the Principle of the Common Heritage of Mankind 3.5 International Seabed Authority

217

219

220

3.6 System for the Exploration and Exploitation of Resources of the Area 3.7 Obligations and Liability of Sponsoring States 3.8 The 1994 Implementation Agreement

4 Conclusions

1 Introduction

224

225

227

232

236

6 Maritime Delimitation

236

237

2 Concept of Maritime Delimitation 2.1 De

207

210

216

3.1 General Considerations

3.3

202

finition

237

2.2 Typology of Maritime Delimitation

238

3 Treaty Law Concerning Maritime Delimitation 3.1 The 1958 Geneva Conventions

238

238

3.2 The 1982 UN Convention on the Law of the Sea

240

4 Development of Case Law Relating to Maritime Delimitation: Two Contrasting Approaches

–

4.1 The First Phase (1969 1992)

242

–

4.2 The Second Phase (1993 2007)

–

4.3 The Third Phase (2009 present) 4.4 Commentary

244 247

247

5 Consideration of Relevant Circumstances (1): Geographical Factors 5.1 Con

figuration of Coasts

5.2 Proportionality 5.3 Baselines

250

251

252

256

5.4 Presence of Islands

258

5.5 Geological and Geomorphological Factors 5.6 Presence of Third States

261

261

6 Consideration of Relevant Circumstances (2): Non-geographical Factors 6.1 Economic Factors

263

6.2 Conduct of the Parties

265

6.3 Historic Title and Historic Rights 6.4 Security Interests

266

6.5 Navigational Factors 6.6 Environmental Factors

7 An Evaluation

267 267

267

7.1 General Trend of Case Law

267

266

263

242

xiii

Contents 7.2 Judicial Creativity in the Law of Maritime Delimitation

268

7.3 Delimitation of the Continental Shelf Beyond 200 Nautical Miles

269

272

8 Provisional Arrangements

8.1 Articles 74(3) and 83(3) of the LOSC

272

8.2 Unilateral Exploration and Exploitation of Natural Resources in Disputed Areas

9 Conclusions

PART II

275 OUR COMMON OCEAN: PROTECTION OF COMMUNITY

INTERESTS AT SEA

279

281

7 Conservation of Marine Living Resources 1 Introduction

274

281

283

2 Conservation of Marine Living Resources Prior to 1982

3 Conservation of Marine Living Resources Under the LOSC (1): The Zonal Management Approach

284

3.1 General Considerations

284

3.2 Conservation of Marine Living Resources in the EEZ

285

3.3 Conservation of Marine Living Resources in the High Seas 3.4 Limits of the Zonal Management Approach

288

287

fi

4 Conservation of Marine Living Resources Under the LOSC (2): The Species-speci c Approach 4.1 Shared and Straddling Fish Stocks 4.2 Highly Migratory Species 4.3 Marine Mammals

289

291

291

4.4 Anadromous Stocks

298

4.5 Catadromous Species

299

4.6 Limits of the Species-Speci

fic Approach

300

301

5 Development After the LOSC

5.1 The Concept of Sustainable Development 5.2 The Ecosystem Approach 5.3 The Precautionary Approach

6 Ensuring Compliance

301

303 306

310

6.1 Flag State Responsibility and Its Limits

310

6.2 At-sea Inspection of Contracting Party Vessels

313

6.3 At-sea Inspection of Non-Contracting Party Vessels 6.4 Port Inspection of Contracting Party Vessels

6.5 Port Inspection of non-Contracting Party Vessels

7 Conclusions

317

319

8 Protection of the Marine Environment 1 Introduction

314

316

322

324

2 Typology of Marine Pollution 2.1 General Considerations

324

2.2 Land-based Marine Pollution 2.3 Vessel-source Marine Pollution 2.4 Dumping at Sea

325 326

327

2.5 Pollution from Seabed Activities

329

322

289

xiv Contents

329

3 Legal Framework for Marine Environmental Protection Prior to 1982 3.1 Customary Law 3.2 Treaty Law

329

331

332

4 Protection of the Marine Environment in the LOSC 4.1 Generality and Comprehensiveness 4.2 Uniformity of Rules

332

333

4.3 Obligation to Cooperate in the Protection of the Marine Environment

5.1 Limits of the Global Legal Framework 5.2 Development of Regional Treaties 5.3 Identi

336

339

fication of Harmful Substances

5.4 Precautionary Approach

339

342

5.5 Environmental Impact Assessment and Monitoring 5.6 International Control

342

344

5.7 Access to Information and Public Participation

6 Regulation of Vessel-source Marine Pollution 6.1 MARPOL

335

336

5 Regulation of Land-based Marine Pollution

347

348

348

6.2 The LOSC Regime (1): Regulation by Flag States

351

6.3 The LOSC Regime (2): Regulation by Coastal States 6.4 The LOSC Regime (3): Regulation by Port States 6.5 Port State Control

352 355

357

6.6 Intervention by Coastal States in the case of Pollution Casualties 6.7 Pollution Emergencies at Sea

359

361

6.8 Liability for Oil Pollution Damage 6.9 Liability for Other Pollution Damage

363 368

6.10 Issues of Special Concern: Invasive Alien Species and Ocean Noise

370

373

7 Dumping at Sea

7.1 Regulation of Dumping at Sea Under the LOSC

373

7.2 The 1972 London Dumping Convention and the 1996 Protocol 7.3 Regional Treaties

374

376

7.4 Ocean Sequestration and Fertilisation

377

8 Regulation of Pollution from Seabed Activities

379

8.1 Marine Pollution Arising From Seabed Activities Under National Jurisdiction 8.2 Marine Pollution Arising From Seabed Activities in the Area

9 Environmental Protection of Ice-covered Areas 9.1 Article 234 of the LOSC

383

383

9.2 Environmental Protection of the Marine Arctic

10 The Impacts of Climate Change on the Oceans

385

391

10.1 The Reduction of GHG Emissions from Shipping

fication

10.2 Ocean Acidi

11 Conclusions

381

391

394

398

9 Conservation of Marine Biological Diversity

404

1 Introduction 404 2 Principal Approaches to Conservation of Marine Biological Diversity 2.1 General Considerations 2.2 Three Approaches

407

406

406

379

xv Contents

409

3 Global Legal Frameworks for the Conservation of Marine Biological Diversity 3.1 The 1982 UN Convention on the Law of the Sea 3.2 The 1992 Convention on Biological Diversity

418

4 Marine Protected Areas 4.1 General Considerations

418

4.2 Typology of MPAs in International Law 4.3 MPAs in the High Seas 4.4 Limits of MPAs

5 Conclusions

409 413

419

423

428

429

10 Marine Scientific Research

432

1 Introduction 432 2 The Concept of Marine Scientifi c Research 433 3 Regulation of Marine Scientific Research in the LOSC 3.1 General Considerations

436

436

3.2 Marine Scientific Research in Marine Spaces Under National Jurisdiction

3.3 Marine Scientific Research in Marine Spaces Beyond National Jurisdiction 3.4 Regulation of Scienti fic Research Installations

442 444

445

6.2 IOC Criteria and Guidelines on the Transfer of Marine Technology

7 Conclusions

447

448

11 Maintenance of International Peace and Security at Sea 1 Introduction 451 2 The Suppression of Piracy 2.1 Concept of Piracy

452

2.2 Seizure of Pirates

456

451

452

2.3 The Role of the UN Security Council in Counter-piracy Operations 2.4 The Use of Privately Contracted Armed Security Personnel

460

461

3 Regulation of Unlawful Offences and Weapons of Mass Destruction at Sea 3.1 The 2005 SUA Convention 3.3 UN Interceptions at Sea

467

468

4 Military Exercises in the EEZ 469 5 Regulation of Nuclear Weapons at Sea 6 Conclusions 476

472

12 Land-Locked and Geographically Disadvantaged States 479

2 Land-Locked States and Access to the Sea 2.1 Legal Regime Prior to the LOSC 2.2 Legal Regime of the LOSC

463

463

3.2 Proliferation Security Initiative

1 Introduction

439

440

4 Legality of Military and Hydrographic Surveys in the EEZ 5 International Cooperation in Marine Scientific Research 6 Transfer of Technology 445 6.1 Transfer of Technology Under the LOSC

437

479

482

482

483

3 The Navigational Rights of Land-Locked States 486 4 Land-Locked and Geographically Disadvantaged States and Uses of the Oceans 4.1 Fishing Rights

486

486

xvi

Contents 4.2 Exploitation of Non-living Resources in the Oceans 4.3 Marine Scientific Research

5 Conclusions

490

491

13 Peaceful Settlement of International Disputes 1 Introduction

489

493

493

2 Basic Structure of Dispute Settlement Procedures in the LOSC

2.1 General Considerations

494

494

2.2 The Interlinkage Between Voluntary and Compulsory Procedures for Dispute Settlement 2.3 Voluntary Conciliation

501

3 Compulsory Procedures for Dispute Settlement

3.1 Multiplicity of Forums

503

503

3.2 Limitations to the Compulsory Procedures

506

3.3 Optional Exceptions to the Compulsory Procedures

507

4 The International Tribunal for the Law of the Sea (1): Organisation

4.1 Members of ITLOS

4.2 The Seabed Disputes Chamber 4.3 Special Chambers

512

513

5 The International Tribunal for the Law of the Sea (2): Procedure

5.1 Jurisdiction of ITLOS 5.2 Applicable Law

515

5.4 Incidental Proceedings

516 517

526

5.6 Advisory Proceedings

527

5.7 Prompt Release Procedure 6 Conclusions

530

534

14 Looking Ahead

538

1 Limitations of the Traditional Framework in the Law of the Sea 2 Towards Protection of Community Interests at Sea: Four Models

Index

544

514

514

5.3 Proceedings Before ITLOS 5.5 Judgment

510

510

538 540

496

Preface

The law of the sea is ever-expanding in nature and there have been several developments since the second edition of this book was published in 2015. In this third edition, all chapters were revised, updated and, where necessary, rewritten. In particular, the following modi

fications merit being highlighted.

Chapter 1 includes a new section, ‘ Two paradigms in the law of the sea’ (section 1.3). In Chapter 2, the interpretation and application of rules governing islands were revised by analysing the 2016

South China Sea

Arbitration (Merits). In Chapter 4, two sections,

‘ Historic rights and the EEZ’ (section 3.7) and ‘ Protection of archaeological and historical

objects found within the continental shelf ’ (section 4.9), were newly added. Chapter 5 includes a new section concerning the regulation of migrant smuggling by sea (section 2.9). In the same chapter, obligations and responsibility of sponsoring States were discussed in section 3.7. In Chapter 6, new sections, delimitation of the continental shelf beyond 200 nautical miles (section 7.3) and provisional arrangements (section 8), were added. In Chapter 7, obligations of the

flag State were discussed in more detail on the basis of the

ITLOS Advisory Opinion of 2015 (section 6.1). Chapter 8 dealing with marine environmental protection includes a new section, ‘Access to information and public participation ’ (section 5.7). In response to a particular request from audience, more consideration was given to environmental protection of the marine Arctic in section 9.2. Chapter 13 regarding the peaceful settlement of international disputes was updated adding new cases. Further reading was updated, while some references before 2000 had to be deleted because of limitations of space. The manuscript of this edition was completed in July 2018. All websites were current as of that date. At present, negotiation is ongoing, under the auspices of the United Nations, to develop an international legally binding instrument on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. The outcome of the negotiation could not be examined in this edition since it remained unknown when the manuscript was completed. I am grateful to the University of Copenhagen, Faculty of Law, and its Library, for its support in the completion of the text of this book. I would also like to thank staff of

xvii

xviii

Preface Cambridge University Press, in particular, Marta Walkowiak and Caitlin Lisle for their assistance. I thank Ms Llinos Edwards for her thorough copy-editing. I am grateful to my wife, Akiko, for all her support and prayer throughout my work. Like the previous editions, this book is dedicated to my teachers, Hugh Thirlway, Lucius Ca

fl

isch and Tetsuo Sato.

YOSHIFUMI TANAKA

Figures

1.1. The case where the outer edge of the continental shelf does not extend up to 200 nautical miles

page

8

1.2. The case where the outer edge of the continental margin extends beyond 200 nautical miles from the baselines

8

2.1. Straight baselines (Article 7(1))

57

2.2. Juridical bays (Article 10)

66

2.3. Low-tide elevations (Article 13)

88

3.1. Transit passage under Article 37

118

3.2. Innocent passage under Article 45(1)(b)

121

3.3. Innocent passage under Articles 38(1), 45(1)(a)

122

3.4. Archipelagic baselines

133

fined in accordance with Article 76(4)(a)(i) Continental shelf as de fined in accordance with Article 76(4)(a)(ii) Continental shelf as de fined in accordance with Article 76(5)

4.1. Continental shelf as de

164

4.2.

165

4.3.

13.1. Chambers of ITLOS

166 513

Figures 1.1, 1.2 and 4.3 have been drawn using technical advice from Dr Anne Marie O ’Hagan. The author wishes to thank Dr O ’Hagan for her technical assistance.

xix

Tables

1.1. Principal features of two paradigms in the law of the sea 3.1. Typology of international straits in the LOSC

118

6.1. International courts’ approaches to maritime delimitations

248

7.1. Regional treaties concerning conservation of marine mammals

293

8.1. Examples of treaties which adopt the regional approach

332

8.2. Non-binding instruments concerning land-based marine pollution

338

8.3. Principal regional treaties regulating land-based marine pollution

340

8.4. Port State control MOUs

358

9.1. Examples of treaties which establish MPAs in Category 2– 2

421

12.1. List of land-locked States

480

13.1. Arbitration under Annex VII of the LOSC

505 511 522 531

13.2. Current geographical distribution of the members of ITLOS and the ICJ 13.3. List of ITLOS cases concerning provisional measures 13.4. List of prompt release cases

xx

page 6

Abbreviations

AFDI AJIL ASDI BYIL CCAMLR COP CYIL ECHR EEZ EFZ EJIL EU FAO GESAMP GHG GYIL ICAO ICCAT ICES ICJ ICLQ IHO IJMCL ILC ILM ILR IMO xxi

Annuaire français de droit international American Journal of International Law Annuaire suisse de droit international British Yearbook of International Law Convention for the Conservation of Antarctic Marine Living Resources Conference of the Parties Canadian Yearbook of International Law European Convention on Human Rights exclusive economic zone exclusive fishery zone European Journal of International Law European Union Food and Agriculture Organization of the United Nations Group of Experts on the Scientific Aspects of Marine Environmental Protection greenhouse gases German Yearbook of International Law International Civil Aviation Organization International Commission for the Conservation of Atlantic Tunas International Council for the Exploration of the Sea International Court of Justice International and Comparative Law Quarterly International Hydrographic Organization International Journal of Marine and Coastal Law International Law Commission International Legal Materials International Law Reports International Maritime Organization

xxii

List of Abbreviations

IMLI Manual

D. J. Attard, M. Fitzmaurice and N. A. Martínez Gutiérrez (eds.),

Manual on International Maritime Law

IMLI

, 3 vols. (Oxford University

–

Press, 2014 16) IOC

Intergovernmental Oceanographic Commission

IOTC

Indian Ocean Tuna Commission

ITLOS

International Tribunal for the Law of the Sea

IUCN

International Union for the Conservation of Nature

IUU

illegal, unreported and unregulated (

IWC

International Whaling Commission

LOSC

United Nations Convention on the Law of the Sea

MARPOL

International Convention for the Prevention of Pollution from Ships

Max Planck Encyclopedia

fishing)

Max Planck Encyclopedia of Public International Law –

(Oxford University Press, 2008 2011, online edition: http:// opil.ouplaw.com/)

MPAs

marine protected areas

MSY

maximum sustainable yield

NAFO

Northwest Atlantic Fisheries Organization

NATO

North Atlantic Treaty Organization

NEAFC

North East Atlantic Fisheries Commission

OPRC

International Convention on Oil Pollution Preparedness, Response

NILR NJIL NYIL ODIL

Netherlands International Law Review Nordic Journal of International Law Netherlands Yearbook of International Law Ocean Development and International Law and Cooperation

OSPAR

Oxford Handbook

Convention for the Protection of the Marine Environment of the North-East Atlantic D. Rothwell, A. G. Oude Elferink, K. N. Scott and T. Stephens (eds.),

The Oxford Handbook of the Law of the Sea

(Oxford University

Press, 2015) PSI

Proliferation Security Initiative

PSSA

particularly sensitive sea area

ReCAAP

Regional Co-operation Agreement on Combating Piracy and Armed

RBDI RCADI RECIEL

Revue belge de droit international Recueil des cours de l Académie de droit international ’

Robbery against Ships in Asia

RGDIP RIAA

Review of European Community and International Environmental Law Revue générale de droit international public Reports of International Arbitral Awards

SOLAS

International Convention for the Safety of Life at Sea

xxiii

List of Abbreviations SPLOS

Meeting of States Parties to the United Nations Convention on the Law of the Sea

SRFC

Sub-Regional Fisheries Commission

SUA Convention

Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation

TAC

total allowable catch

TSC

Geneva Convention on the Territorial Sea and the Contiguous Zone

UN

United Nations

UNCLOS

United Nations Conference on the Law of the Sea

UNDOALOS

United Nations Division for Ocean Affairs and the Law of the Sea

UNEP

United Nations Environment Programme

UNESCO

United Nations Educational, Scienti

fic and Cultural

Organization

UNTS Virginia Commentary

United Nations Treaty Series

United Nations Convention on the Law of the Sea 1982: A Commentary, 6 vols. (The Hague, Nijhoff, 1985–2002)

WMD

weapons of mass destruction

WTO

World Trade Organization

YILC ZaöRV

Yearbook of International Law Commission Zeitschrift für ausländisches öffentliches Recht und Völkerrecht

Table of Cases

ACT Shipping (PTE) Ltd v The Minister for the Marine, Ireland and the Attorney General (1995) 3 The Irish Reports 82, 100 n.27

Advisory Opinion Concerning Legality of the Threat or Use of Nuclear Weapons , ICJ Report 1996 14, 530

Advisory Opinion in the Constitution of the Maritime Safety Committee of the InterGovernmental Maritime Consultative Organisation, ICJ Reports 1960 196

–

Anglo-French Continental Shelf Case (1977) 18 RIAA 239, 242, 245, 254, 259 61 Anglo-Norwegian Fisheries Case , ICJ Reports 1951 54, 57, 64 Anna Case (1805) 165 ER 809 27 Application Instituting Proceedings by Bolivia v Chile, ICJ 24 April 2013 (Application pending) 484 n.21

ARA Libertad case , ITLOS Reports 2012 98 n.12, 98, 505, 515 n.109, 523 n.148, 524 n.158

Aramco (1958) 27 ILR 98 Arbitration regarding the Iron Rhine Railway (Belgium and Netherlands) (2005) 27 RIAA 302

Arctic Sunrise Case (Kingdom of the Netherlands v Russian Federation), Provisional Measures (2013), ITLOS 189, 523, 525

–

Arctic Sunrise Arbitration (Netherlands v Russia) 40, 136 n.171, 198, 203 4, 385 n.327, 509, 516

Arctic Sunrise Arbitration, Award on Jurisdiction, 26 November 2014, available at: https:// pca-cpa.org/en/cases/21 40 n.153, 509 n.71, 516 n.114, 518

Arctic Sunrise Arbitration, Award on the Merits of 14 August 2015, para. 222 available at: https://pca-cpa.org/en/cases/21 136 n.171, 173 n.100, 189 n.7, 385 n.327

Arrest of Warrant of 11 April 2000 Case , ICJ Reports 2002 456 Atlanto-Scandian Herring Arbitration (The Kingdom of Denmark in respect of the Faroe Islands v The European Union), terminated on 23 September 2014 505

Barbados/Trinidad and Tobago Case (2006) 27 RIAA 246, 262, 272

xxiv

xxv

Table of Cases Belgium/Senegal Case, Provisional Measures, Order of 28 May 2009, ICJ Reports 2009 523 n.156 Bering Sea Fur-Seals Case, 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:

fice, 1895); C. A. R. Robb (ed.), International Environmental

Government Printing Of

–

Law Reports, vol. 1 24 5, 289 Black Sea Case, ICJ Reports 2009 32, 40, 73, 74, 78 n.127, 247, 248, 254, 257, 259, 262 Cameroon/Nigeria Case, ICJ Reports 2002 16, 246, 263 ‘Camouco’ Case (Panama v France), Prompt Release (2000), ITLOS, ITLOS Reports 2000 10;

–

(2000) 39 ILM 532 3

fish Stocks in the fic Ocean (Chile/European Community), ITLOS, Proceedings

Case Concerning the Conservation and Sustainable Exploitation of Sword South-Eastern Paci

Suspended 20 December 2000 318, 514 Case Concerning Land Reclamation by Singapore in and Around the Straits of Johor Case (Malaysia v Singapore), Provisional Measures (2003), ITLOS, ITLOS Reports 2003 10 498 n.16 Case Concerning Passage Through the Great Belt (Provisional Measures), ICJ Reports 1991 123 n.111, 130 Case of Medvedyev and Others v France, Application No. 3394/03, European Court of Human Rights, Grand Chamber, Judgment, 29 March 2010 215 Castle John v NV Babeco (1988) 77 ILR 454 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua), Provisional Measures, Order of 8 March 2011, ICJ Reports 2011(I) 522 n.147, 523 n.151 Chagos Marine Protected Area Arbitration (2015), Award of 18 March 2015, available at: https://pca-cpa.org/en/cases/11 410 n.27, 422 n.83, 422, 497 Chile

– Measures Affecting the Transit and Importation of Swordfish, Request for the Establishment of a Panel by the European Communities, WT/DS193/2, 7 November 2000 255, 260, 522

Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organisation, ICJ Reports 1960 196 Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v Albania), ICJ

–

Reports 1949 21, 106, 108, 116 18 Costa Rica/Nicaragua Case (2018), Judgment, ICJ Reports 2018 80 Croatia/Slovenia Arbitration (2017), Final Award, 29 June 2017, available at: https://pcacpa.org/en/cases/3 72, 72 n.91, 267 Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (pending) 505

xxvi

Table of Cases Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal, Judgment (2012), ITLOS Reports 2012 4 247, 249,

–

250 n.54, 251, 269 72

Dispute Concerning Filleting within the Gulf of St Laurence (1990) 82 ILR; (2006) 19 RIAA 151

Dubai/Sharjah Border Case (1993) 91 ILR 74 Duzgit Integrity Arbitration (Malta v São Tomé and Príncipe) Award of 5 September 2016, available at: https://pca-cpa.org/en/cases/53/. 136 n.171, 136, 497 ‘Enrica Lexie’ Incident Arbitration, Request for Prescription of Provisional Measures, Order of 29 April 2016, available at: https://pca-cpa.org/en/cases/117 21 n.80

Eleanor Case (1809) 165 All ER 99, 101

–

Eritrea/Yemen Case (Second Phase) (2001) 22 RIAA 335 68 n.66, 86, 245, 257 8, 262, 264,

–

266 8

– Measures Affecting the Approval and Marketing of Biotech – Approval and Marketing of Biotech Products), WT/DS291/R, WT/

European Communities Products (EC

DS292/R, WT/DS293/R, 29 September 2006 308

Fisheries Jurisdiction Case (United Kingdom v Iceland), ICJ Reports 1974 32 n.131, 320 Fisheries Jurisdiction Case (Spain v Canada), ICJ Reports 1998 507 Frontier Dispute Case (Burkina Faso v Republic of Mali), ICJ Reports 1986 21 n.76 Gab číkovo–Nagymaros Project Case , ICJ Reports 1997 302, 308, 330 Ghana/Côte d’Ivoire Case, Order of Provisional Measures, ITLOS Reports 2015 269 Ghana/Côte d’Ivoire Case, Judgment, ITLOS Reports 2017 270, 270 n.175 Grand Prince Case (Belize v France), Prompt Release (2001), ITLOS Reports 2001 17 194, 533 Greenland/Jan Mayen Case , ICJ Reports 1993 79, 244, 264, 266 Grisbadara Case (1910) 4 AJIL 85 103

–

Guinea/Guinea-Bissau Case (1986) 25 ILM 244, 251 2

–

Gulf of Maine Case, ICJ Reports 1984 161 n.55, 237, 244, 252, 260, 264, 267 8 Guyana/Suriname Case (2007) 30 RIAA, 267, 268, 273 Haitian Centre for Human Rights et al. v United States (1997) 215, 215 n.158 Hirsi Jamaa and Others v Italy, Grand Chamber, European Court of Human Rights, Judgment, 23 February 2012 216 n.165

Hoshinmaru Case (Japan v Russian Federation), Prompt Release (2007), ITLOS Reports 2007

–

18 532 4

I ’m Alone Case (1935) 3 RIAA 204 n.87, 206 In the Matter of the Bay of Bengal Maritime Boundary Arbitration between the People ’s Republic of Bangladesh and the Republic of India, Award, 7 July 2014, available at:

–

www.pca-cpa.org/ 251 n.66, 251, 255, 269 72

Institute of Cetacean Research, a Japanese Research Foundation; Kyodo Senpaku Kaisha, LTD, a Japanese Corporation; Tomoyuki Ogawa, an Individual; Toshiyuki Miura, an Individual (Plaintiffs/Appellants) v Sea Shepherd Conservation Society, an Oregon

fi

Nonpro t Corporation; Paul Watson, an Individual (Defendants/Appellees), Appeal

xxvii

Table of Cases from the United States District Court for the Western District of Washington, No. 1235266, D.C. No. 2:11-cv-02043-RAJ, Opinion, Judgment available at: http:// cdn.ca9.uscourts.gov/datastore/general/2013/02/25/1235266.pdf.) 454 ‘Juno Trader ’ Case (Saint Vincent and the Grenadines v Guinea-Bissau), Prompt Release (2004), ITLOS Reports 2004 17, 21 n.81, 194 n.39

The King v The ‘North’ (1908) 2 AJIL 202 n.80 LaGrand Case , ICJ Reports 2001 520 n.135, 525

–

Land, Island and Maritime Frontier Dispute Case, ICJ Reports 1992 67 8, 71 Legality of the Threat or Use of Nuclear Weapons , ICJ Reports 1996 14 Libya/Malta Case , ICJ Reports 1985 12, 151, 163, 244, 249, 251, 253 n.80, 256, 262, 266 Muscat Dhows Arbitration (1905), 11 RIAA, 193 n.35 M/V ‘Louisa’ Case (Saint Vincent and the Grenadines v Spain), Provisional Measures (2010), ITLOS Reports 2010 4 189, 505, 521, 523

M/V Norstar Case (2016) Preliminary Objections, ITLOS Report 2016 498, 519 M/V Norstar Case (2019), Judgment, ITLOS Reports 2019 158 n.44 M/V ‘Saiga’ Case (Saint Vincent and the Grenadines v Guinea), Prompt Release (1997), ITLOS, ITLOS Reports 1997 16 502, 516, 532

–3

M/V ‘Saiga’ (No. 2) Case (Saint Vincent and the Grenadines v Guinea), Provisional Measures (1998), ITLOS Reports 1998 24, Merits (1999), ITLOS Reports 1999, 157,

–

193, 197, 517 18

M/V Toledo (ACT Shipping (PTE) Ltd v The Minister for the Marine, Ireland and the Attorney General) (1995) 3 The Irish Reports 100 n.27 M/V Virginia G Case (Panama v Guinea-Bissau), Judgment (2014) ITLOS Reports 2014 4

–

–

154 n.30, 157 8, 197, 518 19

Magda Maria Case (1985) 16 NYIL; (1989) 20 NYIL 196 Maritime Dispute (Peru v Chile), ICJ Reports 2014 241 n.10 ‘Monte Confurco ’ Case (Seychelles v France), Prompt Release (2000), ITLOS Reports 2000 86

–

532 4

MOX Plant Case (Ireland v United Kingdom), Provisional Measures (2001), ITLOS Reports 2001 95 308, 335, 498, 500, 523

MOX Plant Case (Ireland v United Kingdom), Suspension of Proceedings on Jurisdiction and Merits and Request for Further Provisional Measures (2003) (case withdrawn 2008) 501

Newton Case (1806) Simmonds, Cases, vol. I 96 Nicaragua Case (Merits), ICJ Reports 1986 14, 98

–

Nicaragua/Honduras Case , ICJ Reports 2007 246, 258 9 North Atlantic Coast Fisheries Case (Great Britain v United States), 7 September 1910, 11

–

RIAA 63 4

–

–

–

North Sea Continental Shelf Cases, ICJ Reports 1969 12 14, 17, 162 3, 242, 251 2, 254 Nottebohm Case , ICJ Reports 1955 194 n.40 Nuclear Tests Case (Australia v France), ICJ Reports 1974 20

xxviii

Table of Cases Nuclear Tests II Case , ICJ Reports 1995 308 Post Of

fice v

Estuary Radio Ltd (1967) 3 All ER 87 n.185

Pulp Mills on the River Uruguay Case (Argentina v Uruguay), ICJ Reports 2010 288, 309, 343

Qatar/Bahrain Case (Merits), ICJ Reports 2001 61, 76, 84, 89, 257–8, 262 Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast, Preliminary Objections, ICJ Reports 2016 167 n.74, 255

R. v Mills and Others (1995) 44 ICLQ 203, 205 Report of the Appellate Body, EC Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/AB/R (16 January 1998) 308 n.141 Report and Recommendations to the Governments of Iceland and Norway of the Conciliation Commission on the Continental Shelf Area Between Iceland and Jan Mayen (1981) 20 ILM 79 n.135, 84

Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC) (2015 ITLOS Advisory Opinion) , ITLOS Reports 2015 290 n.42, 291 n.48, 311 n.152

Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the International Seabed Area, Advisory Opinion (2011), ITLOS Reports 2011 10 220 n.180, 232 n.251, 309 n.144, 330 n.38, 382 n.311, 527 n.178, 528 n.180

Right of Passage over Indian Territory Case , ICJ Reports 1960 12 n.23 Sally Case (1806) Simmonds, Cases, vol.1 96 Somalia/Kenya Case (2016), Preliminary Objections, ICJ Reports 2016 501 Southern Blue

fin Tuna Case (New Zealand v Japan; Australia v Japan), Provisional

Measures (1999), ITLOS Reports 1999 280, 309, 499 –500, 523

Southern Blue

fin Tuna Case (Australia and New Zealand v Japan), Jurisdiction and

Admissibility (2000), (2000) 39 ILM 500, 525

South China Sea Arbitration (The Philippines v China) Jurisdiction and Admissibility (2015), Merits (2016), available at: https://pca-cpa.org/en/cases/7. 76, 80, 83, 90, 160, 266, 497 n.12, 500, 508

S.S. ‘Lotus’ Case, PCIJ, 1928 Series A/10 452 n.3, 456 n.22 St. Pierre and Miquelon Case (1992) 31 ILM 244, 248, 255 n.90, 264 Tempest Case (1859) Simmonds, Cases, vol. I 97 Tenyu Maru Case (1910) 4 Alaska, Simmonds, Cases, vol. IV 205 Territorial and Maritime Dispute (Nicaragua/Colombia), ICJ Reports 2012 76, 79– 80, 163, 170, 255, 259, 261, 269

Texaco Overseas Petroleum Company/California Asiatic Oil Company v Libyan Arab Republic (1978) 17 ILM 20 Timor-Leste/Australia Conciliation, Decision on Australia ’s Objections to Competence, 19 September 2016, available at: https://pca-cpa.org/en/cases/132 498 n.18

xxix

Table of Cases Timor-Leste/Australia Conciliation, Report and Recommendation, 9 May 2018, available at: https://pca-cpa.org/en/cases/132 509 n.69 The Twee Gebroeders (1801) Simmonds, Cases, vol. I 104 Tomimaru Case (Japan v Russian Federation), Prompt Release (2007), ITLOS Reports 2007 74 194, 533

–

Trail Smelter Case (United States v Canada), (1939) 33 AJIL; (1941) 35 AJIL 329 30, 390

–

–

Tunisia/Libya Case, ICJ Reports 1982 69 70, 243, 252, 258, 260, 262, 265 6 United States v Alaska Case, Report of the Special Master 1996, United States Reports, Cases Adjudged in the Supreme Court at October Term 1996 87 Whaling in the Antarctic (Australia v Japan, New Zealand Intervening), ICJ Reports 2014

–

296 7, 541 Wildenhus Case (1887) 120 US 96 Winter, Secretary of the Navy et al. v Natural Resource Defence Council et al., 555 US 7 (2008) 372 n.258

Table of Treaties and Instruments

Abuja (the West and Central African Region) Memorandum of Understanding on Port State Control (1999) 358 Additional Protocol to the Abidjan Convention Concerning Cooperation in the Protection and Development of Marine and Coastal Environment from Land Based Sources and Activities in the Western Central and Southern African Region (the Abidjan Protocol) (2012) 340 African Nuclear-Weapon-Free Zone Treaty (1996) (Pelindaba Treaty) Article 4 474 n.123 Article 5 474 n.123 Protocol I Article 1 474 Protocol II Article 1 474 Agenda 21 (1992) 302 Paragraph 17.46 302 n.109 Paragraph 17.75 302 n.109 2030 Agenda for Sustainable Development 326 Agreement between Colombia and Jamaica (1993) 265 Agreement between Denmark and Sweden (1984) 257 Agreement between Finland and the Soviet Union concerning the Åland Islands (1940) 123 Agreement between India and Sri Lanka (1976) 266 Agreement between Indonesia and Malaysia (1982) 136 Article 2(2) 136 Agreement between Italy and Yugoslavia (1975) 258 Agreement between Japan and South Korea (1974) 265 Agreement between Norway and Iceland (1981) 264 Agreement between Saudi Arabia and Sudan (1974) 265

xxx

xxxi

Table of Treaties and Instruments

Agreement between the Government of the Republic of Trinidad and Tobago and the Government of the United States of America Concerning Maritime Counter-Drug Operations (1996) 209 n.118 Paragraph 11 209 n.118 Agreement Concerning Co-operation in Suppressing Illicit Maritime and Air Traf

ficking in

Narcotic Drugs and Psychotropic Substances in the Caribbean Area (2003) 173 Article 16(1) 372, 420 Agreement Concerning the Creation of a Marine Mammal Sanctuary in the Mediterranean (1999) 293, 424 Article 2 424 Article 3 424 Article 14(2) 424 Agreement Governing the Activities of States on the Moon and the Other Celestial Bodies (1979) Article 11 217 n.175 Agreement on Arctic Cooperation between Canada and the United States (1988) 119 Article 3 120 n.97 Article 4 120 Agreement on Co-operation and Relationship between the United Nations and the International Tribunal for the Law of the Sea (1997) 510 n.75 Agreement on Cooperation in Aeronautical and Maritime Search and Rescue in the Arctic (2011) 388 Article 3(3) 388 Annex Paragraph 2 388 Agreement on Cooperation in Research, Conservation and Management of Marine Mammals in the North Atlantic (1992) 293 Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic (2013) 388 Agreement on Illicit Traf

fic by Sea, Implementing Article 17 of the United Nations fic in Narcotic Drugs and Psychotropic Substances

Convention against Illicit Traf

(1995) (Council of Europe Agreement) 207 Article 6 208 Article 7 208 Article 9(1) 208 Article 11(2) 208 n.116 Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (2009) 317 Article 3(3) 317 Article 3(5) 317 Article 9(4) 317

xxxii Table of Treaties and Instruments

Agreement on Sealing and the Conservation of the Seal Stocks in the Northwest Atlantic (1971) 293 Agreement on Special Trade Passenger Ships (1971) 191 Protocol (1973) 191 Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area (1996) 372, 293, 420 Agreement on the Conservation of Seals in the Wadden Sea (1990) 293, 420 Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas (1992) 293 n.60, 293 Agreement on the Delimitation of Marine and Submarine Areas and Maritime Cooperation between the Dominican Republic and Colombia (1978) 265 Agreement on Enhancing International Arctic Scienti

fic Cooperation (2017) 391, 444

Agreement on the Preservation of Polar Bears (1973) 293 Agreement on the Privileges and Immunities of ITLOS (1997) 512 Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 (1994) 41, 47, 227 Article 2(1) 228 n.236 Article 3(15)(d) 490 n.47 Article 4(1) 228 n.237 Article 4(2) 228 n.238 Article 7 227 n.233 Annex Section 1(2) 228 Section 1(3) 228 n.239 Section 1(5)(g) 381 n.305 Section 1(5)(k) 381 n.305 Section 1(7) 381 n.305 Section 1(14) 229 Section 2(1) 228 n.240 Section 2(2) 224 Section 2(3) 229 Section 2(4) 229 Section 2(5) 224 Section 3(1) 230 n.246 Section 3(2) 230 Section 3(3) 230 Section 3(4) 230 n.246 Section 3(5) 231 Section 3(9) 231 Section 3(15)(a) 231, 231 n.247 Section 4 231

xxxiii

Table of Treaties and Instruments

Section 5(1)(b) 373 Section 5(1)(c) Section 5(2) 447 Section 6(7) 229 Section 7(1) 230 Section 8(1)(d) 230 Section 8(2) 230 Section 8(3) 230 Section 9(a) 231 n.247 Section 9(1) 229 Agreement to Promote Compliance with International Conservation and Management Measures (1993) (FAO Compliance Agreement) 312, 316 Article III 312 Article III(3) 312 Article III(5) 312 Article V(2) 316 n.185 Antarctic Treaty (1959) 385, 474 Article I 474 Article V 474 Article XI 499 Arctic Offshore Oil and Gas Guidelines (2009) 389

Arctic Offshore Oil and Gas Guidelines: Systems Safety Management and Safety Culture (2014) 389 ASEAN Agreement on the Conservation of Nature and Natural Resources (1985) Article 3(3)(a) 421 Black Sea Memorandum of Understanding on Port State Control (2000) 358 Brussels Convention for the Uni

fication of Certain Rules relating to Penal Jurisdiction

(1952) 193 Article 1 193 n.33 Article 3 193 n.33 Caribbean Memorandum of Understanding on Port State Control (1996) 358 CARICIM Maritime and Airspace Security Co-operation Agreement (2008) 207 Article II(2)(a) 207 n.112 Charter of the United Nations 330 Article 2(3) 495 n.6 Article 2(4) 495 n.6 Article 33(1) 496 Article 41 468 Article 51 209 n.119 Article 92 510 n.74 Article 94 526 n.176

xxxiv

Table of Treaties and Instruments

Charter of the United Nations

(cont.)

Chapter VII 468 Code of Conduct Concerning the Repression of Piracy and Armed Robbery against Ships in the Western Indian Ocean and the Gulf of Aden (2009) (Djibouti Code of Conduct) 457, 459 Article 7 457 n.32 Article 8 459 Code of Conduct Concerning the Repression of Piracy, Armed Robbery against Ships and Illegal Maritime Activity in West and Central Africa (2013) 459 Code of Conduct for Responsible Fisheries (1995) (FAO)

see

Food and Agriculture

Organisation Code of Conduct for Responsible Fisheries (1995) Commission for the Conservation of Antarctic Marine Living Resources, Scheme to Promote Compliance by Non-Contracting Party Vessels with CCAMLR Conservation Measures (2009) Paragraph 4 315 n.181 Commission for the Conservation of Antarctic Marine Living Resources, Port Inspections of Fishing Vessels Carrying Antarctic Marine Living Resources (2013) Paragraph 1 318 n.195 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the 1998 Aarhus Convention) 347 n.130, 347 Convention on International Trade in Endangered Species of Wild Flora and Fauna (1973) (CITES/1973 Washington Convention) 293 Convention on Long-Range Transboundary Air Pollution (the 1979 ECE Convention) 390 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) 458 Article 3(1) 214 n.155 Convention and Statute on Freedom of Transit (1921) 482 Article 2 482 n.10 Convention between the United States of America and Great Britain to Aid in the Prevention of the Smuggling of Intoxicating Liquors into the United States (1924) 206 Convention for Cooperation in the Protection and Development of the Marine and Coastal Environment of the West and Central African Region (1981) 332 Article 11 421 Convention for the Conservation of Anadromous Stocks in the North Paci 299 Article III(1)(a) 299 Article V 313 n.169 Article V(2)(d) 314 n.174 Article VIII(1) 299 Article IX 299 Convention for the Conservation of Antarctic Seals (1972) 293

fic Ocean (1992)

xxxv

Table of Treaties and Instruments

Convention for the Conservation of Salmon in the North Atlantic Ocean (1982) 298 Article 2 299

fin Tuna (1993)

Convention for the Conservation of Southern Blue Article 16 499 Article 16(1) 499 Article 16(2) 499

Convention for the Prevention of Marine Pollution from Land-Based Sources (1974) (1974 Paris Convention) 331, 339 Article 4 339 n.84 Annexes 341 Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region (1983) 332 Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Eastern African Region (1985) 332 Article 10 421 Convention for the Protection of the Marine Environment and Coastal Area of the South East Paci

fic (1981) 332

Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean (1995) (Barcelona Convention) 332, 376 n.275 Convention for the Protection of the Marine Environment of the North-East Atlantic

–

(1992) (1992 OSPAR Convention) 303, 332, 340, 345, 376, 388 9, 418, 421,

–

425 7, 500 Article 1(a) 339 n.81, 386 n.335 Article 1(b) 95 n.3 Article 1(e) 339 n.82 Article 2(2)(a) 342 Article 3 341, 386 Article 5 389 Article 9 346 n.123, 347 Article 9(2) 347 Article 9(3) 347 n.127 Article 10 346 Article 11(1)(b) 46 Article 11(2) 46 Article 13 346 Article 22 345 n.122 Article 23 345 n.122, 346 Annex I 341 Article 1(2) 341 n.100 Article 2(1) 341 Article 3(a) 341

xxxvi

Table of Treaties and Instruments

Convention for the Protection of the Marine Environment of the North-East Atlantic (1992) (1992 OSPAR Convention)

(cont.)

Annex II Article 3(1) 376 n.280 Article 3(2)(3) 376 Annex V 418 Article 2(a) 418 Article 3(1)(a) 418 n.63 Article 3(1)(b)(ii) 418 n.64 Appendix 2 341 Appendix 3 418 Convention for the Protection of the Natural Resources and Environment of the South Paci

fic Region (1986) (1986 Noumea Convention) 332

Article 14 421 Convention for the Protection of the World Cultural and Natural Heritage (1972) (World Heritage Convention) 419 Article 2 419 n.71 Article 11(1) 419 Convention for the Regulation of Whaling (1931) 294 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (1988) (SUA Convention) as amended by the Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (2005)

–

(2005 SUA Convention) 463 4 Article 2 464 Article 3 465 Article 3(1) 464 n.82, 466

bis 464–6 3 ter 465 3 quater 465, 466

Article 3 Article Article

Article 4(1) 463 n.79 Article 4(2) 464 n.81 Article 6 465 Article 6(1) 465 Article 6(2) 465 Article 6(3) 465 Article 6(4) 466

bis 465 8 bis (5) 465 8 bis (6) 465 8 bis (8) 465

Article 8 Article Article Article

Article 9 207 Article 10(1) 466

xxxvii

Table of Treaties and Instruments

Article 11(1) 466 n.85 Article 11(2) 466 n.86 Article 11

bis

464

Article 11(5) 463 n.78 Article 15(2) 388n Convention for the Uni

fication of Certain Rules of Law Respecting Assistance and Salvage

at Sea (1910) 363 Article 2 363 n.202 Convention of Lausanne (1923) Article 15 192 Convention on Acting against Traf

ficking in Human Beings (2005) (Council of Europe) 200

Convention on Biological Diversity (1993) (Rio Convention) 378, 394, 406, 413 420, 422, 429 Article 1 413 Article 2 404 n.1, 414 n.47, 420 Article 3 413 Article 4 421 Article 5 417 Article 6 413 n.46 Article 8 414 n.48 Article 8(a) 421 Article 8(b) 421 Article 8(c) 422 Article 8(e) 422 Article 9 414 Article 10 413 n.46 Article 14(1)(a) 415 Article 14(1)(c) 415 Article 14(1)(d) 415 Article 14(1)(e) 415 Article 15 415 Article 15(1) 413 n.44 Article 15(2) 415 Article 15(3) 415 Article 15(4) 415 n.52 Article 15(5) 415 n.52 Article 15(7) 415 Article 16 416 Article 16(1) 416 Article 16(2) 416 Article 20(2) 416

–14, 417–18,

xxxviii Table of Treaties and Instruments

Convention on Biological Diversity (1993) (Rio Convention)

(cont.)

Article 20(4) 415 Article 22 416 Article 22(2) 421 Article 23(4)(a) 416 n.57 Article 26 416 Article 27 417 Article 27(1) 416 Article 27(2) 416 Article 27(3) 416 Article 27(4) 416 Convention on Civil Liability for Oil Pollution Damage Resulting from Exploration for and Exploitation of Seabed Mineral Resources (1977) 380 Convention on Conservation of Nature in the South Paci

fic (1976)

Article 11 421 Convention on Environmental Impact Assessment in a Transboundary Context (1991) (Espoo Convention) 343 n.104 Convention on Future Multilateral Cooperation in the Northeast Atlantic Fisheries (1982) Article 5 427 n.106 Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries (1978) Article XII(1) 316 n.183 Article XII(3) 316 n.183 Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere (1940) 418 n.67 Convention on Psychotropic Substances (1971) 207 Convention on Supplementary Compensation for Nuclear Damage (1997) 369 Article XIII 370 n.242 Article XIII(2) 370 n.243 Convention on the Conservation and Management of High Seas Fishery Resources in the

fic (2009)

South Paci

Article 3(1)(b) 307 Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea (1994) Article XI(5) 314 n.173 Article XI(7)(c) 314 n.174 Convention on the Conservation of Antarctic Marine Living Resources (1980) (CCAMLR) 407 Article II(2) 282 n.2 Article II(3)(a) 407 Article II(3)(c) 407

xxxix

Table of Treaties and Instruments

Article II(4) 407 n.14 Article 9(2)(g) 421 Convention on the Conservation of Migratory Species of Wild Animal (1979) (CMS/Bonn Convention) 407 Article III 407 n.16 Article III(5) 407 Article IV 407 n.17 Article IV(3) 407 Article IV(4) 407 Article V 407 n.17 Appendix I 407 Appendix II 407 Convention on the International Maritime Organisation (1948) Article 2 (b) 43 n.174 Convention on the International Regulations for Preventing Collisions at Sea (1972) 105, 191 Convention on the Liability of Operators of Nuclear Ships (1962) (Brussels Convention on Nuclear Ships) 112, 369 Article II 370 n.239 Article III 370 n.241 Convention on the Non-Forti

fication and Neutrality of the Åland Islands (1921) 123

Convention on the Protection of the Black Sea Against Pollution (1992) 376 n.276 Convention on the Protection of the Environment of the Baltic Sea (1974) 332 Convention on the Protection of the Marine Environment of the Baltic Sea Area (1974) (1974 Helsinki Convention) 339 Article 5 339 n.85 Article 6 339 n.85

–

Annex II 340 1 Convention on the Protection of the Marine Environment of the Baltic Sea Area (1992) (1992 Helsinki Convention) 342 Article 1 339 n.81 Article 2 339 n.82 Article 3(2) 342 Article 12 380 Article 16(1) 344 Article 16(2) 345 Article 17 346 n.123 Article 20(1)(a) 345 n.121 Annex III 345 Regulation 3(1) 345 n.120 Annex VI Regulation 2 380

xl

Table of Treaties and Instruments

Convention on the Protection of the Marine Environment of the Baltic Sea Area (1992) (1992 Helsinki Convention)

(cont.)

Regulation 3 380 Regulation 4 380 Regulation 5 380 Annex VII 361 n.198 Convention for the Protection of the Mediterranean Sea against Pollution (1976) 332 Convention on the Protection of Underwater Cultural Heritage (2001) (UNESCO Convention) 177– 8, 180– 1 Article 1(1)(a) 179 Article 2(1) 178 Article 2(3) 178 Article 2(7) 179 Article 3 181 Article 4 179 Article 6(2) 181 Article 9(1) 180 Article 9(1)(a) 180 Article 9(1)(b) 180 Article 9(5) 180 Article 10(2) 180 Article 10(3)(a) 180 n.128 Article 10(3)(b) 180 n.129 Article 10(4) 180 Article 17(1) 180 n.126 Convention on Wetlands of International Importance (1971) (Ramsar Convention) 418 Article 1(1) 419 Article 2(1) 419 Article 3(1) 419 Convention Regarding the Régime of the Straits (1936) (Montreux Convention) 122 Convention relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material (1971) 369 Article I 370 n.239 Convention Relating to the Status of Refugees (1951) Article 33(1) 214 n.155 Declaration between the United Kingdom and France Respecting Egypt and Morocco (1904) Article 7 123 Déclaration conjointe relative à l ’ institution d’ un sanctuaire méditerranéen pour les mammifères marins (1993) 420 Declaration of Barcelona (1921) 486 Declaration of Denmark (2004) 123 n.110

xli

Table of Treaties and Instruments

Declaration of Latin American States on the Law of the Sea (1970) (Lima Declaration) 19 n.69, 150 Declaration of Principles Governing the Sea-bed and the Ocean Floor, and the Subsoil Thereof, Beyond the Limits of National Jurisdiction (1970) 218 Principle 2 218 Declaration of Sweden (1996) 123 n.110 Declaration of the First International North Sea Conference on the Protection of the North Sea (1984) (Bremen Ministerial Declaration) Paragraph D3 306 n.131 Declaration of the Second International North Sea Conference on the Protection of the North Sea (1987) (London Declaration) 306 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations (1970) 20 Principle 2 496 Declaration on the Granting of Independence to Colonial Countries and Peoples (1960) 20 Directive 2002/59/EC of the European Parliament and of the Council of 27 June 2002 establishing a Community Vessel Traf

fic Monitoring and Information System

and Repealing Council Directive 93/75/EEC 100 n.30 Article 20 102 Djibouti Port Utilisation Agreement between the Transitional Government of Ethiopia and the Government of the Republic of Djibouti (1994) 485 EC Council Directive 95/21/EC on Port State Control (1995) 358 European Agreement for the Prevention of Broadcasting Transmitted from Stations Outside National Territories (1965) 201 Article 3 201 European Community Treaty (1957) 501 Article 226 501 European Convention on Human Rights (1952) 215, 458 Article 3 216 European Fisheries Convention (1964) 89 Federal States of Micronesia Arrangement for Regional Fisheries Access (1994) 316 Food and Agriculture Organisation Code of Conduct for Responsible Fisheries (1995) 20, 44, 302 Article 3 20 Article 7.2.1 302 n.110 Food and Agriculture Organisation Constitution (1945) Article XIV (1) 44 n.176 Article XIV (2) 44 n.176 General Act for the Repression of African Slave Trade (1890) 199

xlii Table of Treaties and Instruments

General Agreement on Tariffs and Trade (1947) (GATT) Article V (2) 482 General Agreement on Tariffs and Trade (1994) (GATT) Article XX 317 Geneva Convention and Statute on the International Regime of Maritime Ports (1923) Article 2 99 Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas

–

(1958) 282 4 Article 2 282 Article 3 283

–

Article 4 283 4 Article 5 283 Article 6(1) 283 Article 7 283

–

Article 7(1) 283 4 Geneva Convention on the Continental Shelf (1958) 17, 29

–30

Article 1 17, 32, 153, 162, 172, 218, 323, 434 Article 1(a) 162 Article 1(1) 30 Article 2 17, 162 Article 2(2) 153, 173 n.101 Article 3 17, 30, 162, 176 Article 5 379 Article 5(1) 434 Article 5(8) 434

–

–

Article 6 238 9, 241 2, 245 Geneva Convention on the High Seas (1958) 17, 200, 210, 491 Article 1 29 Article 2 486 Article 2(2) 30 Article 3 176 Article 4 486 Article 5(1) 194, 197 Article 7 190 Article 11 193 Article 13 98 Article 15 453 n.4 Article 23 202, 203 Article 23(3) 203 Article 24 323 n.2, 379 Article 25 323 n.3

xliii

Table of Treaties and Instruments

Geneva Convention on the Territorial Sea and Contiguous Zone (1958) 29, 31, 67, 73, 85, 109, 129, 238, 240 Article 1 30 Article 4 56, 59 Article 4(3) 62 Article 4(5) 62 Article 4(6) 63 n.47 Article 5(2) 96 Article 7 65

–

Article 8 73 4 Article 10 88 Article 10(1) 76 Article 11 87 Article 12 238, 266 Article 12(1) 238

–

Article 13 72 3 Article 14(1) 104, 109 Article 14(2) 109 Article 14(4) 105, 107 Article 14(5) 107 Article 14(6) 105

–

Article 16(4) 97 8, 116 Article 23 109 Article 23(3) 203 Article 24 146, 238 Article 24(1) 30, 146, 147 Article 24(2) 31 Article 24(3) 240 Global Programme of Action for the Protection of the Marine Environment from Landbased Activities (1995) 337 Paragraph 23(h)(i) 337 n.68 Paragraph 24 337 n.68 Guidelines and Standards for the Removal of Offshore Installations and Standards on the Continental Shelf and in the Exclusive Economic Zone (1989) 156 n.34 Implementation of Best Management Practice Guidance (2011) 459 International Agreement for the Regulation of Whaling (1937) 294 Guidelines for Ships Operating in Polar Waters (the Polar Guidelines) (2009) 387 Indian Ocean Memorandum of Understanding on Port State Control (1998) 358, 358 n.183 Inter-American Convention for the Protection and Conservation of Sea Turtles (2001) 420 Interdiction Principles for the Proliferation Security Initiative (2003) Paragraph 1 467

xliv

Table of Treaties and Instruments

Interdiction Principles for the Proliferation Security Initiative (2003) (cont.) Paragraph 2 467 Paragraph 4(d) 467 Paragraph 4(d)(1) 468 International Code of Safety for Ships Operating in Polar Waters (Polar Code) (2014) 387 International Convention for the Conservation of Atlantic Tunas (1966) Article VIII(3)(c) 316 n.183 Article VIII(3)(e) 316 n.183 International Convention for the Control and Management of Ship’ s Ballast Water and Sediments (2004) 370 –1 Article 1(2) 371 Article 2(1) 371, 371 n.245 Article 5(1) 371 n.246 Article 7(1) 371 n.248 Article 9 371 Article 13 371 n.249

fied

International Convention for the Prevention of Pollution from Ships of 1973, as modi

by the 1978 Protocol (MARPOL 73/78) 112, 323, 327, 331, 334, 348, 350, 361, 392 n.382 Article 2(3)(b)(ii) 317 Article 2(5) 348 n.133 Article 3(1) 348 Article 3(3) 348 Article 4(1) 348 Article 5 348 Article 8 361 Annex I 348– 50 Regulation 11 358 n.178 Regulation 15 348 n.136 Regulation 19 348 n.137 Regulation 20 348 n.137 Regulation 39 380 Appendix 1 368 Annex II 348 –9 Regulation 6 349 n.142 Regulation 13 349 n.141 Regulation 13(8) 349 n.143 Regulation 16(9) 358 n.178 Annex III 349 Regulation 8 358 n.178 Annex IV 349 Regulation 13 349

xlv Table of Treaties and Instruments

Annex V 349 Regulation 1(1) 349 Regulation 3(1)(a) 349 n.149 Regulation 5 349 Regulation 5(1) 349 n.150 Regulation 6 349 n.142 Regulation 6(a) 349 Regulation 6(b) 349 Regulation 6(c) 349 n.151 Regulation 8 358 n.178 Annex VI 350 Regulation 2(3) 392 n.385 Regulation 10 358 n.178 Regulation 13(6) 350 n.154 Regulation 14(3) 350 n.154 Regulation 16 350 Regulation 19 393 n.390 Regulation 19(1) 392 n.385 Regulation 21 392 n.385 Regulation 22 393 n.390 Regulation 22(1) 393 Appendix VII 350 n.154 Tables 1 and 2 392 n.385 International Convention for the Prevention of Pollution of the Sea by Oil (Oil Pollution Convention) (1954) 322 International Convention for the Regulation of Whaling (1937) 294 International Convention for the Regulation of Whaling (1946) 294 Article I(1) 294 Article I(2) 294 Article III(2) 295 Article V(1) 295 Article V(3) 295 Article VI 295 Article VIII 296 Article VIII(1) 296 Schedule Paragraph 7(a) 295 n.75 Paragraph 7(b) 296, 244 Paragraph 10(d) 296 Paragraph 10(e) 295 n.73, 296 Paragraph 13 295 n.73

xlvi

Table of Treaties and Instruments

International Convention for the Regulation of Whaling (1946)

(cont.)

Paragraph 30 296 Regulation V/33.1 213 International Convention for the Safety of Fishing Vessels (1977) 191 International Convention for the Safety of Life at Sea (1974) (SOLAS) 112, 191, 213, 358 Annex Regulation 19 358 n.177 Protocol (1988) 105n International Convention on Civil Liability for Bunker Oil Pollution Damage (2001) (Bunker Oil Convention) 367 Article 1(5) 367 n.224 Article 1(9)(a) 367 n.225 Article 3 367 Article 6 367 Article 7(1) 367 International Convention on Civil Liability for Oil Pollution Damage (1969) 323, 364

–5

Article III 303 Article V 303 Protocol to replace (1992) 268n International Convention on Civil Liability for Oil Pollution Damage (Civil Liability Convention (1992)) 366 Article I(3) 365 n.213 Article I(6) 365 n.212 Article II 365 n.211 Article III(1) 365 Article III(2) 365 n.214 Article V(1) 365 Article VII 365 Article IX(1) 365 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (1996) (HNS Convention)

–

307 8 Article 1(5) 368 n.227 Article 1(6) 368 Article 3 368 Article 7 368 n.229 Article 9 368 Article 12 368 n.229 Article 14(5)(a) 369 Article 18 369 Article 19 369 Protocol (2010) 369

xlvii

Table of Treaties and Instruments

International Convention on Load Lines (1966) 191 Article 21 358 n.180 International Convention on Maritime Search and Rescue (1979) 21, 213 International Convention on Oil Pollution Preparedness, Response and Cooperation (1990) (OPRC) 334, 362 Article 3 362 Article 4 362 Article 4(1) 362 Article 5(1) 362 Article 6(1) 362 Article 7(1) 362 International Convention on Salvage (1989) 362 Article 1 362 Article 8 363 Article 13 363 Article 14 363 International Convention on Standards of Training, Certi

fication and Watchkeeping for

Fishing Vessel Personnel (1995) 192 International Convention on Standards of Training, Certi

fication and Watchkeeping for

Seafarers (1978) 358 Article X 358 n.181 International Convention on the Control of Harmful Anti-fouling Systems on Ships (2001) 371 Article 2(2) 371 n.253 Article 4 371 Article 11 371 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (1971) 364

see also Protocol

to the International Convention on the Establishment of an

International Fund for Compensation for Oil Pollution Damage, 1992 (2003) International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (1992) (Fund Convention) 366 Article 3 366 n.218 Article 4 366 Article 4(2) 366 Article 10 366 n.219 Article 28(4) 366 n.217 International Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (1972) (London Dumping Convention) 328, 331 n.41, 331, 374 376 n.272 Article III(1) 328

–5,

xlviii

Table of Treaties and Instruments

International Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (1972) (London Dumping Convention)

(cont.)

Article IV(1) 374 Article IV(1)(b) 374 Article IV(1)(c) 374 Annex I 374 Paragraph 6 374 n.269 Annex II 374 Paragraph D 374 n.269 Protocol

see

Protocol to the Convention on the Prevention of Marine Pollution by

Dumping of Wastes and Other Matter (1996) (London Protocol) International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (1969) 359 Article I 360 Article I(1) 359, 360 n.192 Article I(2) 360, 360 n.193 Article II(1) 360 n.188 Article III 360 Article III(a) 360 Article III(d) 360 Article V 360 Article V(1) 360 Article V(2) 360 n.189 International Covenant on Civil and Political Rights (1966) 214 n.155, 215, 458 International Guidelines for the Management of Deep-Sea Fisheries in the High Seas (2008) 300 n.100 International Labour Organisation Convention No. 147 concerning Minimum Standards in Merchant Ships (1976) 358 Article 4 358 n.179 International Maritime Organisation General Provisions on the Adoption, Designation and Substitution of Archipelagic Sea Lanes (1998) 140 International Maritime Organisation Guidelines for the Identi

fication and Designation of

Particularly Sensitive Sea Areas (2002) 420 n.73 International Maritime Organisation Guidelines on Places of Refuge for Ships in Need of Assistance, Resolution (2003) 100 n.30 International Maritime Organisation Resolution on Prevention and Suppression of Piracy, Armed Robbery against Ships and Illicit Maritime Activity in the Gulf of Guinea (2013) 459 International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (2001) Paragraph 66 317 n.192 Joint Protocol Relating to the Application of the Vienna Convention and the Paris Convention (1988) 369

xlix

Table of Treaties and Instruments

Kuwait Regional Convention for Cooperation on the Protection of Marine Environment from Pollution (1978) 332 Kyoto Protocol (2005) 392, 395 Article 1(1) 395 n.403 Article 1(2) 395 n.403 Manila Declaration on Furthering the Implementation of the Global Programme of Action for the Protection of the Marine Environment from Land-based Activities (2012) 337 Marine Strategy Framework Directive (2008) 372 Article 1(1) 373 Article 2(8) 373 Article 3(4) 373 n.263 Article 3(5)(b) 373 Annex III 373 Maritime Boundary Agreement between the United States and Cuba (1977) 258 Maritime Labour Convention (2006) 192, 358 Regulation 5.2 358 n.182 Mediterranean Memorandum of Understanding on Port State Control (1997) 358 Memorandum of Understanding between Malaysia and Thailand in the Gulf of Thailand (1979) 265 Memorandum of Understanding between Malaysia and Vietnam (1992) 265 Memorandum of Understanding between the North East Atlantic Fisheries Commission (NEAFC) and the OSPAR Commission (2008) 427 Memorandum of Understanding between the OSPAR Commission and the International Seabed Authority (2010) 427 Minamata Convention on Mercury (2013) 390 Montevideo Declaration on the Law of the Sea (1970) 150 Montreal Declaration on the Protection of the Marine Environment against Pollution from Land-Based Activities (2001) 337 Montreal Guidelines for the Protection of the Marine Environment against Pollution from

–

Land-Based Sources (1985) 337 8, 420 Paragraph 1(b) 326 n.13 Montreal Protocol to the Ozone Convention (1987) Article 8 416 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Bene

fits Arising from their Utilization to the Convention on Biological Diversity

(2010) 415 New York Convention on Transit Trade of Land-locked States (1965) 483 Article 1(c) 483 n.14 Article 2(1) 483 Article 2(2) 483 Article 11 483 Article 15 483

l

Table of Treaties and Instruments

Northeast Atlantic Fisheries Commission, Scheme of Control and Enforcement (2017) 314 Article 30 314 n.174 Article 37(2) 315 n.178 Article 38(1) 314 Article 38(3) 314 Article 40 318 n.196 Article 41 318 n.196 Chapter IV 314 n.172 Chapter V 316 n.189 Northern Corridor Transit Agreement (1985) 485 Article 2 485 n.27 Northwest Atlantic Fisheries Organization Conservation and Enforcement Measures Scheme to Promote Compliance by Non-Contracting Party Vessels with Recommendations established by NAFO (2017) 315 Article 39 314 n.174 Article 49(1) 315 Article 50(1) 315 n.177 Article 51(1) 317 Chapter VII 316 n.188 Chapter VIII 260 Optional Protocol of Signature Concerning the Compulsory Settlement of Disputes (1962) 29, 31 Oslo Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft (1972) 376 Article 5 376 Article 6 376 Annex I 376 Paris Agreement (2015) 392, 394 Ottawa Declaration (1996) 386 Paris Convention on Third Party Liability in the Field of Nuclear Damage (1960) 369 Article 3 370 n.239 Article 6 370 n.239 Article 10 370 n.241 Article 13 370 n.242 Paris Memorandum of Understanding on Port State Control (1982) 358, 358 n.176 Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention Against Transnational Organised Crime (2000)

–

(Smuggling Protocol) (2000) 210 11 Article 1 210 n.128 Article 2 210 n.127, 211 n.129

li

Table of Treaties and Instruments

Article 5 211 Article 6 211 n.131 Article 7 211 n.133 Article 8 211 Article 8(2) 211 Article 10 211 n.133 Article 11 211 n.133 Article 14 211 n.133 Article 15 211 n.133 Article 16 211 n.132 Protocol Amending the International Agreement for the Regulation of Whaling (1938) 294 Protocol Concerning Cooperation in Combating Marine Pollution in Cases of Emergency in the Eastern African Region (1985) Article 5 361 n.198 Protocol Concerning Cooperation in Preventing Pollution from Ships and, in Cases of Emergency, Combating Pollution of the Mediterranean Sea (2002) 102 Article 9 361 n.198 Article 10 361 n.198 Article 16 102 n.39 Protocol Concerning Mediterranean Specially Protected Areas (1982) Article 3(1) 421 Protocol Concerning Pollution from Land-Based Sources and Activities to the Convention for the Protection and Development of the Marine Environment of the Wider

–

Caribbean Region (1999) (1999 Aruba Protocol) 340 1 Article I(4) 339 n.82 Article VII(2) 343 n.109 Article XII 344 n.116 Protocol Concerning Protected Areas and Wild Fauna and Flora in the Eastern African Region (1985) Article 8 421 Article 10(d) 428 n.114 Protocol Concerning Regional Cooperation in Combating Pollution by Oil and Other Harmful Substances in Cases of Emergency (1982) Article 7 361 n.198 Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean (1995) 423 Article 2(1) 423 n.89 Article 3(1) 423 Article 5(1) 424 Article 8 421

lii Table of Treaties and Instruments

Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean (1995)

(cont.)

Article 8(1) 424 Article 9 421 Article 9(1) 424 Annex 1 421 Protocol Concerning Specially Protected Areas and Wildlife in the Wider Caribbean Region (1990) Article 4 421 Article 5(2)(d) 428 n.114 Protocol Concerning the Protection of the Marine Environment from Land-Based Activities in the Red Sea and Gulf of Aden (2005) (2005 Jeddah Protocol) 340 Article 4(1)(b) 339 n.82 Protocol for the Conservation and Management of Protected Marine and Coastal Areas of the South-East Paci

fic (1989)

Article 2 421 Article 3 421 Protocol for the Prevention and Elimination of Pollution of the Mediterranean Sea by Dumping from Ships and Aircraft (1976) 376, 376 n.275 Article 4 377 n.281 Article 5 377 n.281 Article 6 377 n.281 Protocol for the Prevention and Elimination of Pollution of the Mediterranean Sea by Dumping from Ships and Aircraft or Incineration at Sea (1995) 377 Article 4 377 n.282 Protocol for the Prevention of Pollution of the South Paci

fic Region by Dumping (1986)

376 n.278 Protocol for the Protection of the Marine and Coastal Environment of the Western Indian Ocean from Land-Based Sources and Activities (the Nairobi Protocol) (2010) 340 Protocol for the Protection of the Mediterranean Sea Against Pollution from Land-Based Sources (1980) (Athens Protocol) 339, 340 Article 2 339 n.81 Article 3 339 n.81 Article 4(1)(b) 339 n.82 Article 5 339 n.86 Article 6 339 n.86 Article 13 344 n.112 Annex I 341 Protocol for the Protection of the Mediterranean Sea Against Pollution from Land-Based Sources and Activities (1996) (1996 Syracuse Protocol) 340, 342 Article 3(c) 339 n.81 Article 4(1)(b) 339 n.82 Article 13(1) 344 Article 14(2)(f ) 344

liii

Table of Treaties and Instruments

Protocol for the Protection of the Mediterranean Sea against Pollution Resulting from Exploration and Exploitation of the Continental Shelf and the Seabed and its Subsoil (1994) (Mediterranean Protocol) 381 Article 27(1) 381 Protocol for the Protection of the South-East Paci

–

fic Against Pollution from Land-Based

Sources (1983) (1983 Quito Protocol) 339 41 Article I 339 n.81 Article II(c) 339 n.82 Article IV 339 n.87 Article V 339 n.87 Article IX 344 n.113 Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf (1992) 463 n.77 Protocol on Hazardous and Noxious Substances Pollution, Preparedness, Response and Cooperation in the Paci

fic Area (2006)

Article 5 361 n.198 Protocol on Preparedness, Response, and Cooperation to Pollution Incidents by Hazardous and Noxious Substances (2000) (HNS Protocol) 362 Article 2(2) 362 Protocol on Protection of the Black Sea Marine Environment against Pollution by Dumping (1992) 376 n.276 Protocol on Protection of the Black Sea Marine Environment Against Pollution from Land-

–

Based Sources (1992) (1992 Bucharest Protocol) 339 40, 344 Article 1 339 n.82 Article 3 339 n.81 Article 4 339 n.88 Article 7 344 n.114 Protocol Relating to Intervention on the High Seas in Cases of Pollution by Substances Other than Oil (1973) 360, 360 n.191 Article I(1) 360 n.192 Article I(2) 360 n.193 Protocol to Amend the International Convention on Civil Liability for Oil Pollution Damages, 1969 (1992) 364 n.209 Protocol to Amend the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971 (1992) 364 n.209 Protocol to the Antarctic Treaty on Environmental Protection (1991) Annex V 421 Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (2005) (2005 SUA Convention)

For article and page numbers to this Convention, see Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (1988) (SUA Convention) as amended by the Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (2005)

liv

Table of Treaties and Instruments

Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (1996) (London Protocol) 374 Article 1(4)(a) 327 n.23 Article 2 375 n.270 Article 3 375 n.270 Article 4(1) 374 Article 4(1)(b) 375 n.271 Article 5 375 Article 6 375, 377

Article 6

bis 379 bis (1) 379

Article 6

bis (2)

Article 6

379

Article 7(2) 376 Article 7(3) 376 Article 8(1) 375 Article 8(2) 375 Article 9(1) 375 Article 9(4) 376 Article 23 374 n.268 Annex I 375 Paragraph 1 375 n.270, 375 Paragraph 3 375 n.270 Annex 2 375

–

Annex 4 378 9 Paragraph 1(1) 378 n.294 Paragraph 1(3) 379 n.295 Annex 5 379, 379 n.296 Protocol to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992 (2003) 367 Article 2 367 Article 4(2)(a) 367 Article 19(3) 367 Protocol to the Kuwait Regional Convention for the Protection of the Marine Environment Against Pollution from Land-Based Sources (1990) (1990 Kuwait Protocol) 340 Article II 339 n.81 Article III(d) 339 n.82 Article VIII(1) 343 n.109 Article XII 344 n.115 Provisional Understanding Regarding Deep Seabed Matters (1984) 227

lv Table of Treaties and Instruments

Recommendation by the International Commission for the Conservation of Atlantic Tunas Concerning the Ban on Landings and Transshipments of Vessels from

fied as Having Committed a Serious Infringement

Non-Contracting Parties Identi (1999) Paragraph 1 315 n.180 Paragraph 2 318 n.194

Regional Convention for the Conservation of the Red Sea and Gulf of Aden Environment (1982) 332, 376 n.277 Regional Co-operation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (2004) 458 n.43, 458 Article 4 458 Regulations on Prospecting and Exploration for Cobalt-Rich Ferromanganese Crusts in the Area (2012) 222 Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area and

–

Related Matters (2000) 222, 381 2 Regulation 31(1) 381 Regulation 31(2) 226 n.218 Regulation 31(6) 226 n.222 Regulation 32(5) 382 Regulation 32(7) 226 n.220 Regulations on Prospecting and Exploration for Polymetallic Sulphides in the Area (2010) (Sulphides Regulations) 222 Regulation 33(2) 226 n.219 Regulation 33(6) 226 n.222 Regulation 35(8) 226 n.220 Annex 4, section 5.1 226 n.219 Resolution 01/03 Establishing a Scheme to Promote Compliance by Non-Contracting Party Vessels with Resolutions Established by the Indian Ocean Tuna Commission (2013) Paragraph 2 315 n.179 Resolution 05/03 Relating to the Establishment of an Indian Ocean Tuna Commission Programme of Inspection in Port (2005) 316 n.187 Paragraph 4 318 n.193 Paragraph 5 318 n.193 Resolution of the European Parliament on the Environmental Effects of High-Intensity Active Naval Sonar (2004) 372 Revised African Maritime Transport Chapter (2010) 485 Revised Interim Recommendations for Flag States Regarding the Use of Privately Contracted Armed Security Personnel on Board Ships in the High Risk Area (2015) 462 n.69

lvi

Table of Treaties and Instruments

Reykjavik Declaration on Responsible Fisheries in the Marine Ecosystem (2001) 302, 304 Preamble 302 n.112 Paragraph 2 302 n.112 Rio Declaration on Environment and Development (1992) 306, 309 Principle 2 330 Principle 15 306 Riyadh (the Arab States of the Gulf ) Memorandum of Understanding on Port State Control (2004) 358 Rome Declaration on the Implementation of the Code of Conduct for Responsible Fisheries (1999) 302 Paragraph 6 304 n.120 Paragraph 12(n) 302 n.111 Rules and Guidelines for Consultative Status of Non-Governmental International Organisations with the International Maritime Organisation (amendment endorsed by the Assembly of the IMO in 2013) 46 n.190 Rules of the International Tribunal for the Law of the Sea (Rules of the Tribunal) 529 Article 28 514 n.101 Article 29 514 n.97 Article 30(1) 514 n.98 Article 43 510 n.78 Article 54(2) 516 Article 89(4) 523 Article 89(5) 521 Article 91(2) 519 n.132 Article 95(1) 520 Article 97 517 Article 97(1) 517 Article 97(2) 517 Article 97(3) 517 Article 97(6) 517 Article 99 526 n.170 Article 100 526 n.171 Article 111(2)(b) 533 n.213 Article 111(2)(c) 533, 533 n.213 Article 112 514 n.102 Article 126 527 Article 127 527 Article 130 528 n.181 Article 131(1) 529 n.187, 529 Article 135(3) 528 n.182

–

Article 138 529 30

lvii

Table of Treaties and Instruments

Article 138(2) 529 Article 138(3) 529 n.186, 530 n.192 SADC Protocol on Transport, Communications and Meteorology in the Southern African Development Community (SADC) Region (1996) 485 Article 3.2(2)(b) 485 n.29 Article 3.2(3) 485 n.30 Single Convention on Narcotics Drugs (1961) 207 Slavery Convention (1926) 199 Southern Indian Ocean Fisheries Agreement (2006) 304 Article 4(a) 304 Article 4(c) 307 Article 20(1) 495 n.4 Statute of the International Court of Justice (1945) Article 16(1) 511 Article 26(1) 514 Article 26(2) 514 Article 32(1) 511 Article 38 241 Article 38(1) 11 Article 38(1)(d) 241 Article 38(2) 241 Article 41(1) 520 Article 59 262 Article 65(1) 528 Statute of the International Law Commission (1947) Article 1(1) 29 n.120 Stockholm Convention on Persistent Organic Pollutants (2001) 390 Stockholm Declaration (1972) 301, 406 Principle 2 406 Principle 4 406 Principle 13 301 n.104 Principle 21 329 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery (1956) 200 Article 1 200 n.69 Tokyo Memorandum of Understanding on Port State Control (Asia-Paci

fic Region) (1993)

358 Tordesillas Treaty (1494) 23 n.88 Torremolinos Protocol (1993) 191 Transit and Port Service Agreement between the Transitional Government of Ethiopia and the Government of the State of Eritrea (1993) 485 n.26

lviii Table of Treaties and Instruments

Treaty Banning Nuclear Weapons Tests in the Atmosphere, in Outer Space and Under Water (1963) 472 Article 1(1)(a) 472 n.116 Treaty between Argentina Republic and Chile, Establishing the Neutrality of Straits of Magellan (1881) Article 5 123 Treaty between Australia and the Democratic Republic of Timor-Leste Establishing Their Maritime Boundaries in the Timor Sea (2018) 509 Treaty between France and Spain Regarding Morocco (1912) Article 6 123 Treaty between Spain and Italy to Combat Illicit Drug Traf

ficking at Sea (1990)

Article 5 209 n.118 Treaty between the Government of Australia and the Government of the French Republic on Cooperation in the Maritime Areas Adjacent to the French Southern and Antarctic Territories (TAAF), Heard Island and the McDonald Islands (2003) 204 n.91 Article 3(3) 204 Article 4 205 Treaty between the Government of Canada and the Government of the United States of

fic Salmon (1985) 299

America concerning Paci Article II(8) 299 Article III(1) 299

Treaty between Norway, The United States of America, Denmark, France, Italy, Japan, the Netherlands, Great Britain and Ireland and the British overseas Dominions and Sweden concerning Spitsbergen (the 1920 Spitsbergen Treaty) 509 n.70 Treaty for the Redemption of the Sound Dues (1857) (Treaty of Copenhagen) 123 Article I 123 Treaty of Friendship, Commerce and Navigation between the Netherlands and the United States of America (1956) Article XIX(2) 99 Treaty of Peace and Friendship between Argentina and Chile (1984) Article 10 123

fic Nuclear-Free Zone (1985) (Rarotonga Treaty)

Treaty of Rarotonga Establishing a South Paci Article 1 473 n.122 Article 5 473 n.122 Article 6 473 n.122 Protocol I 473 n.122 Protocol II 473 n.122, 474

–

Article 1 473 4 Protocol III Article I 473 n.122, 474

lix

Table of Treaties and Instruments

Treaty of Tlatelolco for the Prohibition of Nuclear Weapons in Latin America (1967) Article 1 473 n.121 Article 3 473 Additional Protocol II 473 Article 3 473 Treaty of Versailles (1919) 486 Article 273 486 n.36 Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Seabed and the Ocean Floor and in the Subsoil Thereof (1971) 473 Article 1 473 n.117 Treaty on the Southeast Asia Nuclear-Weapon-Free-Zone (1995) (Treaty of Bangkok) 474 Article 3(1) 474 n.124 Article 3(2) 474 Protocol Article 2 474 Uniform Interpretation of Norms of International Law Governing Innocent Passage between the United States and the USSR (1989) 110 Paragraph 2 110 Paragraph 4 106 United Kingdom-United States Exchange of Notes (1981) Paragraph 1 209 n.118 United Nations Convention against Illicit Traf

fic in Narcotic Drugs and Psychotropic

Substances (1988) 207 Article 1(a) 208 n.115 Article 2(1) 208 n.114 Article 17 208 Article 17(3) 208 Article 17(4) 208 Article 17(10) 208 United Nations Convention on Conditions for Registration of Ships (1986) 160 United Nations Convention on the Law of the Sea (1982) (LOSC) 36 Article 1(1) 4 n.1, 220 n.179 Article 1(1)(4) 324, 372 Article 1(1)(5)(a) 327 Article 1(1)(5)(b) 327 Article 2(1) 96 Article 2(3) 104 Article 3 5 n.4, 39, 53 n.1, 102 n.40

–

Article 5 54 5, 63

–1, 163

–9, 41, 45, 47, 54, 102 –3

lx

Table of Treaties and Instruments

United Nations Convention on the Law of the Sea (1982) (LOSC) Article 6 86, 257 Article 7 57, 59 Article 7(1) 57, 59 Article 7(2) 57, 61 Article 7(3) 59 Article 7(4) 61 Article 7(5) 59 Article 7(6) 61 Article 8 5 n.4, 73

–

Article 9 72 3

–

Article 10 65 6, 71, 90 Article 10(2) 65

–

Article 10(3) 65 6 Article 10(4) 66 Article 10(5) 60 n.27, 66 Article 10(6) 65 Article 11 65, 73 Article 12 103 n.45 Article 13 73, 87 Article 13(1) 87 Article 13(2) 87 n.183 Article 14 57 Article 15 240, 256, 267 Article 16 63, 73 Article 16(1) 63 Article 17 104, 109, 422 n.81, 486 Article 18(1) 105 Article 18(2) 21, 57 Article 19 107, 125 Article 19(1) 105, 107

–

Article 19(2) 106 7, 109 Article 19(2)(a) 106 Article 19(2)(c) 106 Article 19(2)(j) 435 Article 20 109 Article 21 113 Article 21(1) 113 Article 21(1)(a) 111 Article 21(1)(f ) 352 Article 21(1)(g) 437 Article 21(2) 114

(cont.)

lxi

Table of Treaties and Instruments

Article 21(4) 105 Article 22 113

– –

Article 22(1) 113 14 Article 22(2) 112 13 Article 22(3) 114 Article 22(4) 105 Article 23 112 Article 24(1) 116, 422 n.81 Article 24(1)(b) 126 n.131 Article 24(2) 21, 116 Article 25 113 Article 25(1) 114 Article 25(2) 99, 114 Article 25(3) 114, 126 n.131, 422 n.81 Article 26 116 Article 27(1) 115 Article 27(1)(d) 208 Article 27(2) 115 Article 27(3) 115 Article 27(5) 115 Article 28 115 Article 28(1) 115 Article 28(2) 115 Article 28(3) 115 Article 29 97 n.11, 98 Article 30 111 Article 31 111 Article 32 97 Article 33 5 n.4, 53 n.1, 146, 149 Article 33(1) 146 n.1, 148 Article 33(2) 146 Article 35(a) 117 n.90 Article 35(c) 122 Article 36 122 Article 37 118 Article 38 422 n.81 Article 38(1) 122 Article 38(2) 124 Article 39 138 Article 39(1) 124 Article 39(1)(c) 124

lxii Table of Treaties and Instruments

United Nations Convention on the Law of the Sea (1982) (LOSC) Article 39(2)(a) 125 n.121 Article 39(2)(b) 125 n.122, 140 Article 39(3) 139 n.177 Article 39(3)(a) 125 Article 39(3)(b) 125 Article 40 125 n.123, 138, 435 Article 41(1) 126 Article 41(3) 126 Article 41(4) 126, 139 Article 41(7) 125 n.124 Article 42 126, 138, 140 Article 42(1) 126 Article 42(1)(a) 127 Article 42(1)(b) 127, 140 Article 42(2) 126 Article 42(4) 125 n.125 Article 42(5) 125 n.125 Article 43 127 Article 44 21, 124, 138, 140, 422 n.81 Article 45(1) 129 Article 45(1)(a) 122 Article 45(2) 130 Article 46(a) 131 Article 46(b) 132

– Article 47(1) 125, 133– 4 Article 47 5 n.4, 133 4

Article 47(2) 60 n.28, 134 Article 47(3) 134 Article 47(4) 134 Article 47(5) 135 Article 47(6) 137 Article 47(8) 135 n.163 Article 47(9) 135 Article 48 132 n.154 Article 49 5 n.4, 136 Article 49(1) 132 n.153, 136 Article 49(2) 136 Article 49(3) 136 Article 50 73 Article 51(1) 136 Article 51(2) 126 n.131

(cont.)

lxiii

Table of Treaties and Instruments

Article 52 132 n.155 Article 52(1) 137

–

Article 52(2) 136 7 Article 53 139 Article 53(1) 139 Article 53(2) 138, 422 n.81 Article 53(3) 422 n.81 Article 53(4) 139 Article 53(5) 139 Article 53(6) 139 Article 53(8) 139 Article 53(9) 139 Article 53(10) 139 Article 53(12) 140 Article 54 138, 139 n.177, 140 Article 55 152 Article 56 153, 173 Article 56(1) 160 n.50 Article 56(1)(a) 9 n.15, 152, 409, 435 Article 56(1)(b) 155 Article 56(1)(c) 155 Article 56(1)(b)(ii) 157, 177

–

Article 56(1)(b)(iii) 157 8, 409 Article 56(1)(c) 155 Article 56(3) 152 Article 57 5 n.4, 53 n.1 Article 58 471 Article 58(1) 152, 156 n.40, 158, 410, 422 n.81, 442, 471 Article 58(2) 152, 156 n.40, 158 Article 58(3) 159, 182, 311, 472 Article 59 159, 182, 471 Article 60 155 Article 60(1) 155 Article 60(1)(b) 155 Article 60(1)(c) 155 Article 60(2) 157 Article 60(3) 156 Article 60(7) 156 Article 60(8) 76 Article 61 409 Article 61(1) 285, 290

lxiv

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United Nations Convention on the Law of the Sea (1982) (LOSC)

–

Article 61(2) 285 6 Article 61(3) 285 Article 61(4) 301 n.101 Article 62 488 Article 62(2) 285 Article 62(4) 311 Article 62(4)(j) 447

–

Article 63 287, 289 91 Article 63(1) 289 n.34 Article 63(2) 290 Article 64 291 Article 64(1) 291

–

Article 65 291 2 Article 66 298 Article 66(1) 298 Article 66(2) 298 Article 66(3) 298 Article 66(3)(a) 298 Article 66(3)(b) 298 Article 66(3)(d) 298 Article 66(4) 298 Article 66(5) 298 Article 67 300 Article 67(1) 299

–

Article 67(2) 299 300 Article 67(3) 300 Article 68 289 n.40

–

Article 69 487 8

–

Article 69(1) 487 8 Article 69(2) 487 Article 69(3) 487, 488 Article 69(4) 487

–

Article 70 487 8

–

Article 70(1) 487 8 Article 70(3) 487 Article 70(4) 488 Article 70(5) 488

–

Article 71 488 9 Article 72 488

–

Article 73(1) 153 4, 172 Article 73(2) 532

(cont.)

lxv Table of Treaties and Instruments

Article 73(3) 154 n.30 Article 73(4) 154 Article 74 238

–

–

Article 74(1) 240 1, 245 7, 249, 266 Article 74(3) 272, 272 n.189, 274, 277 Article 75(1) 152 Article 75(2) 152

–

Article 76 163 4, 167, 169, 182 Article 76(1) 163 Article 76(4) 164, 167

– –

Article 76(4)(a)(i) 139 40 Article 76(4)(a)(ii) 164 5 Article 76(4)(b) 165 Article 76(5) 165, 167 Article 76(6) 165, 167 Article 76(7) 165 Article 76(8) 169 Article 76(9) 170 Article 76(10) 167 Article 77(1) 9 n.15, 284 Article 77(2) 173 n.101 Article 77(4) 284, 410 Article 78 187 Article 78(1) 176 Article 78(2) 173 n.102 Article 79(1) 174 Article 79(2) 175 Article 79(3) 159, 175, 410 Article 79(4) 175 Article 80 173 Article 81 174 Article 82 171, 222 Article 82(2) 171 Article 82(3) 171 Article 82(4) 171 Article 83 238, 245, 270

–

–

Article 83(1) 240 1, 246 7, 249, 266 Article 83(3) 272 Article 84(2) 217 Article 86 38, 152 Article 87 152, 158, 486

lxvi

Table of Treaties and Instruments

United Nations Convention on the Law of the Sea (1982) (LOSC) Article 87(1) 442 Article 87(1)(e) 188, 287 Article 87(2) 189 Article 88 188

–

Articles 88 115 158 Article 89 188 Article 90 486 Article 91 197

–

Article 91(1) 193 4, 197 Article 92 311 Article 92(1) 189 Article 92(2) 201 Article 93 190 Article 94 191, 311 Article 94(1) 191 n.17, 194 Article 94(2) 191 n.18 Article 94(3) 191 Article 94(4) 191 Article 94(5) 191 Article 94(6) 192, 197 Article 94(7) 192 Article 95 198 Article 96 198 Article 97 193 Article 98 21 Article 98(1) 213 Article 98(1)(a) 193 Article 98(1)(c) 193 Article 98(2) 213 Article 99 98, 200 Article 100 458 Article 101 455 Article 102 455 Article 103 455 Article 105 457 Article 108(1) 208 Article 108(2) 208 Article 109 201 Article 109(1) 201 Article 109(2) 201 Article 109(3) 201

(cont.)

lxvii

Table of Treaties and Instruments

Article 109(4) 201

–

Article 110 198, 200 1 Article 110(1) 97 n.11, 198 Article 110(1)(b) 200 Article 110(1)(e) 202 Article 110(2) 199, 202 Article 110(3) 199, 204 Article 110(5) 97 n.11 Article 111 198, 202, 204, 233 Article 111(1) 203 Article 111(2) 203 Article 111(3) 204 Article 111(4) 203, 205 Article 111(5) 202 Article 111(6) 147 Article 111(6)(b) 203 Article 111(7) 147 Article 111(8) 147 Article 116 287 Article 117 288 Article 118 288 Article 119(1) 287 Article 119(1)(b) 301 n.101 Article 119(2) 287 Article 120 292 Article 121 74, 76, 84, 91, 168 Article 121(1) 75 Article 121(2) 74

–

Article 121(3) 77, 79, 84 5, 91, 168 Article 123(b) 338 n.78 Article 124(1) 479 n.1 Article 124(1)(b) 484 n.18 Article 124(1)(d) 484 n.23 Article 125 483 Article 125(1) 484 Article 125(3) 484 Article 126 484 Article 127 484 Article 130(1) 484 Article 131 486 Article 133(a) 219, 412

lxviii

Table of Treaties and Instruments

United Nations Convention on the Law of the Sea (1982) (LOSC) Article 134 226 Article 134(4) 217 Article 135 221 Article 136 38, 219 Article 137(1) 219 Article 137(2) 219 Article 139 225 n.212 Article 139(1) 232 n.251 Article 139(2) 226 Article 140 84 n.165, 489 Article 140(1) 219 Article 140(2) 220 Article 141 220, 412 Article 143 232 Article 143(1) 413 Article 143(2) 439 Article 143(3) 412, 439 Article 144(1) 439, 446 Article 144(2) 446 Article 145 381 Article 146 21 Article 147(2)(a) 222 n.198 Article 148 490 Article 149 178 Article 151 229 Article 151(3) 229 n.242 Article 151(10) 222, 230 Article 152(1) 490 Article 152(2) 490 Article 153(1) 220, 222 n.195

–

Article 153(2) 223 4

–

Article 153(2)(b) 224 5 Article 153(3) 224 Article 153(4) 225 Article 153(5) 222 Article 155 231 Article 155(1) 231 Article 155(2) 232 Article 155(3) 231 Article 155(4) 231 Article 156(2) 220 n.182

(cont.)

lxix

Table of Treaties and Instruments

Article 156(4) 221 n.183 Article 157(1) 222 n.195 Article 157(2) 221 Article 158(1) 221 n.184 Article 159(1) 221 n.186 Article 159(7) 230 Article 159(8) 230 Article 159(10) 527 Article 160(1) 221 n.186, 230 Article 160(2)(f )(i) 220

– –

Article 160(2)(f ) (i) 222 n.199 Article 160(2)(f ) (ii) 222 n.200 Article 160(2)(k) 490

–

Article 160(2)(o) (ii) 222 n.200 Article 161(1) 221 n.188 Article 161(1)(d) 490 n.47 Article 161(2)(a) 490 n.47 Article 161(3) 221 n.189 Article 161(8)(b) 230 Article 161(8)(c) 230 Article 162(1) 221 n.188 Article 162(2)(a) 223 Article 162(2)(w) 223 Article 162(2)(x) 382 Article 164(2)(d) 222 Article 165(2)(j) 526 Article 165(2)(v) 526 Article 166(1) 221 n.191 Article 168(1) 221 n.192 Article 168(2) 221 n.192 Article 174(1) 229 Article 185 223 Article 185(1) 382 Article 187 513 Article 188(b) 512 Article 189 513 n.94 Article 191 527 n.179

–

Article 192 311, 332 3, 409 Article 193 311 Article 194 311 Article 194(1) 333

lxx

Table of Treaties and Instruments

United Nations Convention on the Law of the Sea (1982) (LOSC) Article 194(2) 330, 362 Article 194(3) 333 Article 194(3)(a) 336 Article 194(5) 409 Article 195 102 Article 196 409 Article 196(1) 409 Article 197 335 Article 198 335 Article 199 335 n.56 Article 202 445 Article 202(1) 447 Article 204 343 Article 204(1) 343 Article 205 343 Article 207(1) 334 Article 206 343 Article 207 336 Article 207(1) 336 Article 207(2) 336 Article 207(4) 335 n.59 Article 208 380 Article 208(1) 379 Article 208(3) 336 n.65 Article 208(4) 380 Article 208(5) 336 n.60 Article 209(1) 318 Article 209(2) 318 Article 210(1) 157 Article 210(2) 157 Article 210(3) 373 Article 210(4) 336 n.61 Article 210(5) 373 Article 210(6) 336 n.65 Article 211 361 n.196 Article 211(1) 336 n.62, 410 Article 211(2) 336 n.65 Article 211(3) 99 Article 211(4) 352 Article 211(5) 157, 353 Article 211(6) 353

(cont.)

lxxi

Table of Treaties and Instruments

Article 211(6)(a) 472 Article 211(7) 361 n.197 Article 212(1) 334 Article 212(3) 336 n.63 Article 213 336 Article 214 380 Article 215 381 Article 216 532 Article 216(1)(a) 374 Article 216(1)(b) 374 n.266 Article 216(1)(c) 374 n.267 Article 217 352 Article 217(1) 351 Article 217(2) 352 Article 217(3) 352 Article 217(4) 352 n.161 Article 217(6) 352 n.162 Article 217(7) 352 Article 217(8) 351 n.160

–

Article 218 355 7, 532 Article 218(1) 101 n.34, 355 Article 218(2) 356 Article 218(3) 101 n.34 Article 218(4) 357 Article 219 532 Article 220 140, 157 Article 220(1) 101 n.34, 140, 353 Article 220(2) 114, 353, 532 Article 220(3) 353 Article 220(4) 353 Article 220(5) 353 Article 220(6) 353, 532 Article 220(7) 532 Article 221 360 Article 221(2) 361 Article 222 396 Article 224 354 Article 225 354 Article 226 356 Article 226(1)(a) 356 Article 226(1)(b) 357, 532

lxxii

Table of Treaties and Instruments

United Nations Convention on the Law of the Sea (1982) (LOSC) Article 226(1)(c) 532 Article 226(2) 335 n.57 Article 227 126 n.131 Article 228 3 Article 228(1) 357 Article 230 354 Article 232 354 n.167 Article 233 127, 140

–

Article 234 383 4 Article 235(1) 363 Article 235(2) 364 Article 235(3) 335 n.58, 364 Article 236 372 Article 238 436 Article 240 436 Article 240(a) 452 n.1 Article 241 436 Article 242(1) 444 Article 243 444 Article 244 444 Article 245 437 Article 246 506 Article 246(1) 177 Article 246(2) 177 Article 246(3) 434 n.12, 437 n.24 Article 246(5) 438 Article 246(5)(a) 438 Article 246(5)(b) 174 Article 246(5)(c) 440 Article 246(5)(d) 174, 441 Article 246(6) 174, 438 Article 247 438 Article 249(1) 438 Article 249(2) 438 n.26 Article 252 438 Article 253 506

–

Article 254 490 1 Article 254(1) 490 Article 254(2) 490 Article 254(3) 490 Article 254(4) 490

(cont.)

lxxiii

Table of Treaties and Instruments

Article 255 444 Article 256 439 n.28 Article 257 177 Article 258 440 n.31 Article 259 440 n.30 Article 263 437 Article 266 446, 491 Article 266(1) 446 Article 266(2) 446 Article 266(3) 446 Article 267 446 Article 268(d) 446 Article 269(a) 491 Article 270 446 n.62 Article 271 446 n.63 Article 272 491 Article 273 446 n.65 Article 274 447 Article 275 446 Article 276 446 Article 278 446 Article 279 495

–

Article 280 495 6 Article 281 498, 500 Article 281(1) 498, 500 Article 281(2) 498

– Article 283 497–8

Article 282 499 501

Article 283(2) 502 Article 284(1) 502 Article 284(2) 502 Article 284(3) 502 Article 284(4) 502 Article 286 39 Article 287 504, 532 Article 287(1) 504 Article 287(1)(a) 510 n.73 Article 287(3) 504 n.50 Article 287(4) 504 Article 287(5) 504 Article 288 514

lxxiv

Table of Treaties and Instruments

United Nations Convention on the Law of the Sea (1982) (LOSC) Article 288(4) 504 Article 290 309

–

Article 290(1) 519 20 Article 290(3) 521 Article 290(5) 520 Article 290(6) 520 Article 291 515 n.105 Article 292 505 n.52 Article 292(1) 532 Article 292(2) 531 Article 293 22 Article 294 507 n.60 Article 294(1) 504 Article 294(3) 504 Article 295 518 Article 296 526 n.174 Article 297 504, 507, 509 Article 297(2) 508 Article 297(2)(a) 506 Article 297(2)(a)(i) 437 n.24 Article 297(2)(b) 506 n.56 Article 297(3) 488, 508 Article 297(3)(a) 506 Article 297(3)(b) 506 n.57 Article 297(3)(b)(iii) 488, 507 Article 297(3)(c) 287 Article 298 507, 509 Article 298(1) 507, 509 Article 298(1)(a)(i) 71, 508 Article 298(1)(a)(ii) 508 n.66 Article 298(1)(a)(iii) 444 n.50, 508 n.67 Article 298(1)(b) 444 n.50, 471, 509 Article 298(1)(c) 444 n.50 Article 298(4) 429 Article 298(5) 429 Article 298(6) 508 Article 299 509 Article 300 290, 331, 484 Article 301 451 Article 303 177 Article 303(1) 37, 177, 241

(cont.)

lxxv Table of Treaties and Instruments

Article 303(2) 77 n.124, 148 Article 305 38 n.149 Article 308(1) 37 Article 309 39

–

Article 310 39 40 Article 311 38 Article 311(1) 38 Article 311(2) 38 Article 311(3) 38 Article 311(4) 38 Article 311(5) 241 Article 311(6) 38, 231 Article 312 40 Article 313 40 Article 314 40 Article 315 40 Article 316 40 Article 316(1) 40 n.155 Article 320 37 Annex I 43 Annex II 43 Article 2(1) 167 Article 2(2) 42 Article 2(3) 42 n.164 Article 2(4) 167 Article 3(1) 167 Article 4 43 Article 5 169 Article 6(2) 144 Article 6(3) 169 Article 7 169 Article 8 169 Article 9 167 Annex III 226 Article 3 224 Article 4(3) 225 Article 4(4) 232 n.251 Article 4(6) 223 Article 5 229 Article 8 225 Article 11 225

lxxvi

Table of Treaties and Instruments

United Nations Convention on the Law of the Sea (1982) (LOSC) Article 13(2) 229

–

–

Article 13(3) (10) 229 30 Article 17(1) 222 Article 17(1)(b)(ix) 381 n.304 Article 17(1)(b)(xii) 381 n.304 Article 18(1) 223 Article 18(2) 223 Annex IV Article 11(3) 228 Annex V 287, 494, 506, 508 Article 3 502 Article 6 502 Article 7 502 n.41 Article 7(2) 507 n.58 Article 8 502 Article 9 502 n.42 Article 14 507 n.58 Annex VI (ITLOS Statute) 495, 510 Article 1(2) 510 n.77 Article 2 42 Article 2(2) 510 n.79 Article 3 42 Article 3(1) 510 n.80 Article 4 510 Article 4(3) 42 Article 4(4) 41 n.161 Article 5(1) 511 n.83 Article 7(1) 511 Article 8 512 Article 10 512 Article 11 512 Article 12(1) 511 n.84 Article 13(1) 526 Article 14 512 Article 15 513 Article 15(1) 514 Article 15(2) 514 Article 15(3) 514 n.100 Article 15(5) 513 n.95, 514 Article 17 528 n.181, 528 Article 17(2) 512

(cont.)

lxxvii Table of Treaties and Instruments

Article 17(3) 512 Article 17(4) 512, 513 Article 17(6) 512 n.87 Article 18(1) 511 Article 18(5) 41 n.162 Article 18(6) 41 n.162 Article 18(7) 41 n.162 Article 19 510 n.76 Article 19(1) 41 n.163 Article 20(2) 515 Article 21 514, 528 Article 22 514 Article 24 516 Article 25(1) 519 Article 25(2) 519, 521 n.139 Article 28 516 n.115 Article 29 526 n.172 Article 30(3) 526 n.173 Article 31 525 Article 31(1) 525 Article 32 526 Article 32(1) 526 Article 32(2) 526 Article 32(3) 526

–

Article 33 517, 526 7

–

Article 33(3) 526 7 Article 34 526 n.175 Article 35(1) 512 n.88 Article 35(2) 512 Article 35(3) 512 n.88 Article 36(1) 512 n.90 Article 36(2) 512 n.91 Article 37 513 n.93, 515 Article 38 515 Article 39 513, 526

see also Rules of the International Tribunal for the Law of the Sea (Rules of the Tribunal) Annex VII 495, 503 Article 1 503 n.45 Article 3 503 n.45 Annex VIII 503 Article 1 503 n.46

lxxviii

Table of Treaties and Instruments

United Nations Convention on the Law of the Sea (1982) (LOSC)

(cont.)

Article 2 503 n.46 Article 5(1) 504 n.47 Article 5(2) 504 n.47 Article 5(3) 504 n.48 Annex IX 37 United Nations Fish Stocks Agreement (Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks) (1995) 41, 44, 47, 304, 313, 495 Article 2 302 Article 5(a) 302 Article 5(g) 304 Article 5(h) 302 Article 6(1) 307

–

Article 7(2) 305 6 Article 7(2)(a) 306 Article 18 312 n.163 Article 19 312 n.163 Article 20 312 n.163 Article 21(1) 313 n.167, 313 Article 21(2) 313 Article 21(3) 313 n.168 Article 21(5) 313 Article 21(6) 313 Article 21(8) 313 Article 21(12) 313 Article 21(15) 313 n.167 Article 22 313 Article 22(1)(f ) 206 Article 23 112 Article 23(3) 316 Article 30(1) 495 Article 30(2) 495 Annex II 307 United Nations Framework Convention on Climate Change (1994) (UNFCCC) 392, 394 Article 1 395 Article 1(2) 395 Article 3 395 Article 4(1)(d) 395

lxxix

Table of Treaties and Instruments

Universal Declaration of Human Rights (1948) 200 Vienna Convention on Civil Liability for Nuclear Damage as Amended by the Protocol of 12 September 1997 (1997 Vienna Convention) 369 Article II 370 n.239 Article IV 370 n.240 Article VII 370 n.241 Article XI 370 n.242

bis)

Article XI(1) (

370 n.243

Vienna Convention on the Law of Treaties (1969) 15 Article 2(1)(a) 15 Article 26 288 Viña del Mar (Latin-American Agreement) (1992) 358 Washington Declaration of the Protection of the Marine Environment from Land-based Activities (1995) (Washington Declaration) 337 Voluntary Guidelines for Flag State Performance (2014) 285 n.14

UNITED NATIONS GENERAL ASSEMBLY RESOLUTIONS Resolution 2340 (XXII) of 18 December 1967 33 Resolution 2467A (XXIII) of 21 December 1968 33 Resolution 2625 (XXV) of 24 October 1970 496 n.8 Resolution 2750C (XXV) of 17 December 1970 33 Resolution 3067 (XXVIII) of 16 November 1973 34 Resolution 3472 (XXX) of 1975 473 Resolution 64/44 of 2 December 2009 475 n.133 Resolution 68/70 of 27 February 2014 45 n.184 Resolution 69/137 of 23 January 2015 479 n.2 Resolution 70/1 of 21 October 2015 (The 2030 Agenda for Sustainable Development) 326 n.17 Resolution 72/73 of 5 December 2017 372 n.256

UNITED NATIONS SECURITY COUNCIL RESOLUTIONS Resolution 55/7 (2000) 526 n.175 Resolution 1718 (2006) 468 Resolution 1816 (2008) 460 Resolution 1838 (2008) 460 n.60 Resolution 1846 (2008) 460 n.60 Resolution 1851 (2008) 460 n.60

lxxx

Table of Treaties and Instruments

Resolution 1874 (2009) 469 Resolution 1897 (2009) 457 n.31 Resolution 1976 (2011) 458 n.42 Resolution 2015 (2011) 458 Resolution 2039 (2012) 459 n.46 Resolution 2094 (2013) 469 n.100 Resolution 2125 (2013) 458 n.37 Resolution 2246 (2015) 461 Resolution 2316 (2016) 461 Resolution 2382 (2017) 462 n.70 Resolution 2383 (2017) 461

NATIONAL LAW

Canada The Northern Canada Vessel Traf

fic Services Zone Regulations (NORDREG) (2010) 385

China Surveying and Mapping Law of the People ’s Republic of China (Order of the President No. 75) Articles 2 and 7 443 n.45

India Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act (1976) 443 Article 7(5) 443 n.46

Iran Marine Areas of the Islamic Republic of Iran in the Persian Gulf and Oman (1993) Article 16 470 n.106

Malaysia Exclusive Economic Zone Act (1984) 443 Article 5(b) 443 n.48 Article 5(c) 443 n.48

Malta Territorial Waters and Contiguous Zone Act (1971) 256

lxxxi

Table of Treaties and Instruments

Russian Federation Federal Law on Amendments to Speci

fic Legislative Acts of the Russian Federation related

to Governmental Regulation of Merchant Shipping in the Water Area of the Northern Sea Route (2012) 120 Rules of Navigation in the Northern Sea Route Water Area (2013) 120

United Kingdom Hovering Acts (18th Century) 146 Territorial Waters Order in Council (1964) 88

United Republic of Tanzania Agreement between Tanzania and Mozambique (1988) Article II 71 Territorial Sea and Exclusive Economic Zone Act (1989) 443 Article 10(1)(c) 443 n.47

United States Proclamation by President Truman of 28 September 1945 on Policy of the United States with respect to Coastal Fisheries in Certain Areas of the High Seas 29 n.119 Proclamation by President Truman of 28 September 1945 on Policy of the United States with respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf 29 n.119 Restatement of the Law Third: The Foreign Relations Law of the United States 190

1 The Law of the Sea in Perspective Main Issues

The international law of the sea is one of the oldest branches of public international law. Thus, it must be examined from the perspective of the development of international law in general. Originally the law of the sea consisted of a body of rules of customary law. Later on, these rules

fied. The Third United Nations (UN) Conference on the Law of the Sea,

were progressively codi

which successfully adopted the UN Convention on the Law of the Sea (the LOSC) in 1982, is of particular importance in the codi

fication of the law. Furthermore, the international community

and the situations that surround the oceans are constantly changing. Accordingly, it is also necessary to examine the evolutionary process of the law after the adoption of the LOSC. As a general introduction, this chapter will address the following issues in particular: (i) What are the principal functions of the law of the sea? (ii) What are the sources of the law of the sea? (iii) What are the principles governing the law of the sea? (iv) What are the speci

fic procedures of the Third UN Conference on the Law of the Sea?

(v) What are the principal features of the LOSC? (vi) What is the evolutionary process of the LOSC and the law of the sea?

1 INTRODUCTION

1.1 General Considerations

Historically, the oceans have been and continue to be fundamental to human life. The everincreasing use of the oceans necessitates international rules governing various human activities in the oceans. The body of international rules that bind States and other subjects of international law in their marine affairs is called the international law of the sea. Like the international law of

flict and the law of diplomacy, the law of the sea is one of the oldest branches of public

armed con

international law. Furthermore, like international human rights law and international environmental law, the law of the sea is a dynamic

field of international law. The law of the sea can be

said to mirror both classical and novel aspects of international law. Thus the law of the sea must be studied from the perspective of the development of public international law as a whole.

3

4

International Law Governing Jurisdictional Zones

1.2 Functions of the Law of the Sea

The law of the sea plays a dual role in international relations. First, the primary function of international law involves the spatial distribution of jurisdiction of States, and the same applies to the law of the sea. The contemporary international law of the sea divides the ocean into multiple jurisdictional zones, such as internal waters, territorial seas, the contiguous zone, the exclusive economic zone (EEZ), archipelagic waters, the continental shelf, the high seas and the Area, i.e. ‘the sea-bed and ocean

floor and subsoil thereof, beyond the limits of national jurisdiction . ’

1

In principle, the

law of the sea provides the rights and obligations of a coastal State and third States according to these jurisdictional zones. Consequently, the law seeks to coordinate the interests of individual States. This approach is sometimes called the zonal management approach. Considering that the world is divided into sovereign States, the traditional role of the law of the sea will in no way lose its importance. Second, given that the ocean is one unit in a physical sense, the proper management of the oceans necessitates international cooperation between States. In general, the spatial scope of man-made jurisdictional zones does not always correspond to marine ecosystems. In fact, several species, such as straddling and highly migratory species, do not respect arti

ficial delimitation lines. The divergence between the law and nature is a serious defi-

ciency in the traditional zonal management approach. International cooperation is thus a prerequisite for conservation of marine living resources as well as biological diversity. Similarly, without international cooperation, the regulation of marine pollution would be less effective because pollution may spread beyond maritime boundaries. Furthermore, a single State’ s regulation of industrial activities to prevent marine pollution would put that State ’ s economy at a competitive disadvantage. International cooperation is also needed in marine scienti

fic research due to the highly complex nature of the oceans. The law of the

sea provides a legal framework for ensuring international cooperation in marine affairs, thereby safeguarding the common interests of the international community as a whole.

2

These two basic functions – the spatial distribution of national jurisdiction and ensuring international cooperation between States – are not mutually exclusive, but must coexist in the law of the sea.

1

Article 1(1) of the UN Convention on the Law of the Sea (hereinafter the LOSC). 1833

UNTS Convention

, p. 3. Entered into

force 16 November 1994. This book uses the abbreviation ‘LOSC’ to refer to the 1982 UN

Conference Convention

Law of the Sea, and ‘UNCLOS’ to refer to the UN ‘UNCLOS’ has also been used to refer to the UN

on the Law of the Sea. W. R. Edeson, ‘Confusion

over the Use of “UNCLOS” and References to Other Recent Agreements’ (2000) 15 2

on the

on the Law of the Sea. Recently, however,

IJMCL

, pp. 413

et seq

.

The ‘common interest of the international community as a whole’ or ‘community interests ’ is an elusive concept and it is dif

ficult, a priori, to define it in the abstract. As Simma pointedly observed, the identifi cation fi c abstraction but rather flows from the recognition of

of common interests does not derive from scienti

concrete problems: B. Simma, ‘From Bilateralism to Community Interest in International Law’ (1994-IV) 250

RCADI

, pp. 235–243. In the law of the sea, one can say that community interests include marine

environmental protection, the conservation of marine living resources and biological diversity, the management of the common heritage of mankind, suppression of piracy, and the maintenance of international peace and security at sea. In this book, the term ‘common interests of the international community’ and ‘community interests ’ will be used interchangeably. See also Chapter 14 of this book.

5

The Law of the Sea in Perspective

1.3 Two Paradigms in the Law of the Sea

In summary, the law of the sea should be considered as a dual legal system comprising the international law of the divided oceans and that of our common ocean.

3

For the purposes of

this book, the former can be called ‘paradigm I’ and the latter can be called ‘ paradigm II’. Primary features of the two paradigms can be summarised as follows (see Table 1.1).

(a) Paradigm I: The Law of the Divided Oceans The

first paradigm, i.e. the law of the divided oceans, rests on the Westphalian conception

of international law stressing the safeguarding of State sovereignty. It aims to reconcile individual interests of States in each jurisdictional zone. In this sense, the State may be regarded as the primary subject of the law of the divided oceans. The spatial ambit of each jurisdictional zone is in principle de

fined

spatially , based on distance from the coast,

irrespective of the nature of the ocean and the natural resources within it.

4

In this sense,

the law of the divided oceans is spatial by nature. As will be discussed later, the law of the divided oceans is essentially governed by the principle of sovereignty and the principle of freedom. Compliance with rules of the law relies on the principle of reciprocity. According to this principle, compliance with rules of the law results from the interest a State perceives in

the

reciprocal

action

of another

State

or States.

In

other

words, the

principle

of

reciprocity seeks to secure the national interest of each State on the basis of the symmetry of rights and obligations. oceans essentially re

5

Overall it can be argued that the international law of the divided

flects the international law of coexistence.

6

(b) Paradigm II: The Law of Our Common Ocean In contrast, the second paradigm, i.e. the law of our common ocean, rests on the international community that shares common values or interests. It aims to safeguard common interests of the international community or community interests at sea, by providing a legal framework for ensuring international cooperation in marine affairs. International cooperation requires international institutions. Thus the role of non-State actors is of particular importance for protecting community interests at sea. Contrary to the law of the divided oceans, the law of our common ocean focuses on the unity of the ocean. This will require a more holistic or integrated management approach. Furthermore, since the principle of reciprocity essentially

3

In this connection, see also Y. Tanaka, A Dual Approach to Ocean Governance: The Cases of Zonal and

Integrated Management in International Law of the Sea (Farnham, Ashgate, 2008), in particular, pp. 21–25. 4

See LOSC Articles 3, 33, 57, 76(1). However, internal waters and archipelagic waters constitute exceptions. The former are located on the landward side of the baseline of the territorial sea (LOSC Article 8), and the latter consist of the waters enclosed in the archipelagic baselines drawn in accordance with Article 47 (LOSC Article 49). Thus the two institutions do not rely on the spatial distance from the baseline.

5

H. Bull, The Anarchical Society: A Study of Order in World Politics, 3rd edn (Basingstoke, Palgrave Macmillan, 2002), 134; M. Virally, ‘Le principe de réciprocité dans le droit international contemporain ’ (1967) 122 RCADI , p. 19.

6

G. Abi-Saab, ‘Cours général de droit international public’ (1987) 207 RCADI , p. 320. In this regard, it is well known that Friedmann pointed to the expansion of international law from international law of coexistence to international law of cooperation. Regarding this formula, see W. Friedmann, ‘General Course in Public International Law ’ (1969) 127 RCADI , pp. 91–109.

6

International Law Governing Jurisdictional Zones T A B L E 1 . 1 P R I N C I P A L F E A T U R E S OF T W O P A R A D I G M S I N T H E LA W OF THE SEA

Paradigm I

Paradigm II

Reconciling individual

Safeguarding common interests of the

interests of States

international community as a whole

Actor

States

States and non-State actors

Concept

Division of the oceans

Unity of the ocean

Principles

Sovereignty and freedom

International cooperation

Compliance

Reciprocity

Institutional mechanisms

Nature

International law of

International law of cooperation

Aim

coexistence

governs bilateral and contractual relations between atomistic States,

7

the traditional com-

pliance mechanism on the basis of the reciprocity principle contains an inherent limit to the protection of community interests.

8

Hence the law of our common ocean adopts a more

institutional approach to secure compliance with relevant rules. Overall, the law of our common ocean can be thought to re

flect the international law of cooperation.

(c) Changing Paradigms in the Law of the Sea The two paradigms are not mutually exclusive, but coexist in the law of the sea. Thus reconciliation between the two paradigms should be an essential issue in the law. Traditionally the law of the sea has been governed primarily by the

first paradigm. As international

law, including the law of the sea, is dynamic by nature, however, the balance between the two paradigms may change over time. It is argued that one of the remarkable features of contemporary international law is the emergence of the concept of community interests.

9

As Simma pointedly observed, ‘arising awareness of the common interests of the international community, a community that comprises not only States, but in the last instance 10

all human beings, has begun to change the nature of international law profoundly’ . Re

flecting this trend, the protection of community interests at sea

– such as sustainable use

of marine resources, marine environmental protection and the maintenance of maritime security – is increasingly important in the law of the sea. Accordingly, it appears that the second paradigm, although embryonic, is gaining importance in this area of law.

7 8

Simma, ‘From Bilateralism to Community Interest ’, pp. 232–233. A. Paulus, ‘Reciprocity Revisited’, in U. Fastenrach et al. (eds.), From Bilateralism to Community Interest:

Essays in Honour of Judge Bruno Simma (Oxford University Press, 2011), p. 123. 9

Generally on this subject, see G. Gaja, ‘The Protection of General Interests in the International Community: General Course on Public International Law ’ (2012) 364 RCADI, pp. 9 –186.

10

B. Simma, ‘From Bilateralism to Community Interest’ p. 234. This view was echoed by Judge Antônio Augusto Cançado Trindade, in ‘International Law for Humankind: Towards a New Jus Gentium’ (2005) 316

RCADI, p. 35.

7

The Law of the Sea in Perspective

2 MARINE SPACES IN THE LAW OF THE SEA

2.1 Scope of the Oceans in the Law of the Sea

The ocean as a subject of the law of the sea is one single unit and is essentially characterised by the continuity of marine spaces. In other words, as Gidel pointed out, the

marine

spaces

governed

by

the

law

of

naturally with each other all over the world. be

connected

to

another

sea

or

the

11

ocean

the

sea

must

communicate

freely

and

This means that each marine space must by

a

narrow

outlet,

normally

a

strait.

Accordingly, for instance, the law of the sea is not applicable to the Caspian Sea because 12

it is separated from the ocean.

Moreover, in order to freely and naturally communicate

through the ocean, the water level must essentially be the same. Indeed, it appears to be unreasonable to argue that rules of the law of the sea are applicable to a distinct body of water at an altitude different from sea level, such as a lake located in a mountain several hundred or even thousand metres high. It must be concluded, therefore, that rivers and 13

lakes are part of terrestrial territory and are not governed by the law of the sea.

It is

also to be noted that under the law of the sea, the ocean is understood to cover three elements, i.e. seabed and the subsoil, adjacent water column and the atmosphere above the sea.

2.2 Typology of Marine Spaces

As explained earlier, marine spaces are divided into several jurisdictional zones in the contemporary international law of the sea. On the basis of the national jurisdiction of the coastal State, these marine spaces can be divided into two main categories: marine spaces under national jurisdiction and spaces beyond national jurisdiction. The former category contains internal waters, territorial seas, international straits, archipelagic waters, the contiguous zone, the EEZ and the continental shelf, while the latter contains the high seas and the Area. Further to this, the present writer proposes to divide the marine spaces under national jurisdiction into two sub-categories.

11

G. Gidel, Le droit international public de la mer: le temps de paix, vol.1. Introduction, La haute mer (reprint, Paris, Duchemin, 1981), p. 40.

12

Ibid. This view is echoed by many writers, including: R. R. Churchill and A. V. Lowe, The Law of the Sea, 3rd edn (Manchester University Press, 1999), p. 60; Nguyen Quoc Dinh, P. Daillier, M. Forteau and A. Pellet, Droit international public, 8th edn (Paris, L.G.D.J., 2009), p. 1276; P. Vincent, Droit de la mer (Brussels, Larcier,

flisch,

2008), pp. 11–12; L. Ca

‘Règles générales du droit des cours d ’eau internationaux’ (1989-VII) 219

RCADI, p. 24; S. Vinogradov and P. Wouters, ‘The Caspian Sea: Current Legal Problems’ (1995) ZaöRV, pp. 618– 619; J.-P. Pancracio, Droit de la mer (Paris, Dalloz, 2010), p. 411. 13

Gidel, Le droit international public de la mer, vol.1, pp. 40–42; Churchill and Lowe, Law of the Sea, p. 60; R. Churchill, ‘Coastal Waters’, in D. J. Attard, M. Fitzmaurice and N. A. Martínez Gutiérrez (eds.), The IMLI Manual on International Maritime Law (hereinafter the IMLI Manual), vol. I (Oxford University Press, 2014), p. 9.

8 International Law Governing Jurisdictional Zones Internal waters

Territorial sea

EEZ

Contiguous zone

High seas

200 nm 24 nm 12 nm

Baseline

Continental shelf in geographical sense

Continental shelf in legal sense Figure 1.1

The Area

The case where the outer edge of the continental shelf does not extend up to

200 nautical miles

Internal Territorial Contiguous waters sea zo ne

EEZ

High s eas

200 nm 24 nm 12 nm

Baseline

Continental slope

Continental shelf in geographical sense

Continental rise

Continental margin Continental shelf in legal sense less than 350 nm from baseline or less than 100 nm from the 2500 m isobath Figure 1.2

The Area

The case where the outer edge of the continental margin extends beyond

200 nautical miles from the baseline

9

The Law of the Sea in Perspective The

first sub-category concerns marine spaces governed by territorial sovereignty. This

category of marine spaces contains internal waters, territorial seas, international straits and archipelagic waters. Territorial sovereignty is characterised by completeness and exclusiveness. It denotes complete jurisdiction in the sense that it comprises three elements unless international law provides otherwise:

(i) Territorial sovereignty comprises comprehensive jurisdiction, which includes both legislative and enforcement jurisdiction, over the State’ s territory. (ii) The State exercises its jurisdiction over all matters within its territory. In other words, territorial sovereignty contains no limit

ratione materiae.

(iii) The State exercises its jurisdiction over all people regardless of their nationalities. Territorial sovereignty thus contains no limit

ratione personae.

At the same time, territorial sovereignty is exclusive in the sense that only the State in question may exercise jurisdiction over its territory. In summary, in its territory, the State exercises legislative and enforcement jurisdiction over all matters and all people in an exclusive manner unless international law provides otherwise. It is important to note that territorial sovereignty is exercisable solely within the territory in question. In this sense, territorial sovereignty is spatial by nature. A jurisdiction that relates to a certain space and can be exercised solely within the space in question may be called ‘spatial jurisdiction ’.

14

Territorial sovereignty is a typical example of spatial jurisdic-

tion. In light of the comprehensive character of territorial sovereignty, one may call territorial sovereignty the complete spatial jurisdiction. In short, internal waters, territorial seas, international straits and archipelagic waters are marine spaces under territorial sovereignty or complete spatial jurisdiction. The second sub-category relates to marine spaces beyond territorial sovereignty but under the national jurisdiction of the coastal State. It is clear that the EEZ and the continental shelf are included in this category.

15

Considering that the contiguous zone

becomes part of the EEZ where it is established, it may not be unreasonable to put the contiguous zone into the same sub-category as the EEZ.

16

The coastal State jurisdiction over the EEZ as well as the continental shelf – called

fined by international law (limitation ratione materiae). In this regard, sovereign rights must be distinguished from territorial sovereignty sovereign rights – is limited to the matters de

per se, which is comprehensive unless international law provides otherwise. Apart from this, however, sovereign rights have commonalities with territorial sovereignty:

14

It would appear that the concept of territory is not wholly unambiguous in international law. Hence it would seem to be wise to use the term ‘spatial’ jurisdiction, not ‘territorial’ jurisdiction. In fact, Gidel used the term ‘souveraineté spatiale’, not ‘souveraineté territoriale ’. Gidel,

Le droit international public de la mer, vol.1,

p. 238. 15 16

LOSC, Articles 56(1), 77(1). Where the EEZ is not claimed, however, the contiguous zone forms part of the high seas.

10 International Law Governing Jurisdictional Zones (i) Sovereign rights concern a certain space and can be exercised solely within the space in question, that is to say, the EEZ as well as the continental shelf. In this sense, such rights are spatial by nature. (ii) Concerning matters de

fined by law, the coastal State may exercise legislative and

enforcement jurisdiction in the EEZ as well as the continental shelf. (iii) The coastal State exercises its jurisdiction over all people regardless of their nationalities within the certain space in question. Thus, sovereign rights contain no limit ratione personae. In this respect, jurisdiction over the EEZ as well as the continental shelf should be distinguished from personal jurisdiction. (iv) Sovereign rights are exclusive in the sense that no one may undertake the exploration and the exploitation of natural resources without the express consent of the coastal State.

The essential point is that, in common with territorial sovereignty, sovereign rights over the EEZ and the continental shelf are spatially limited by nature. The fact that jurisdiction can be exercised solely within the certain space is the essential element of spatial jurisdiction. The coastal State jurisdiction over the EEZ and the continental shelf is also essentially characterised by the spatial element. Hence, it may be argued that sovereign rights over the EEZ and the continental shelf can be regarded as a sort of spatial jurisdiction, not as personal or any other type of jurisdiction, although it must be distinguished from territorial sovereignty.

17

Considering that, unlike territorial sovereignty, sovereign rights are limited

in their material scope, however, these rights should be called limited spatial jurisdiction.

18

In summary, spatial jurisdiction comprises both complete spatial jurisdiction (= territorial sovereignty) and limited spatial jurisdiction (= sovereign rights). In either case, it must be stressed that coastal State jurisdiction over marine spaces is spatial by nature. It follows from the above discussion that marine spaces in the law of the sea can be categorised as follows (see Figures 1.1 and 1.2):

17

J. Combacau, Le droit international de la mer, Que sais-je? (Paris, PUF, 1985), p. 21. This issue will be discussed in Chapter 4, sections 3.3 and 4.7. Coastal State jurisdiction over the EEZ and the continental shelf is sometimes described as ‘functional jurisdiction’. This is not an unreasonable view. However, every jurisdiction is functional in the sense that certain functions are attributed to the jurisdiction. It appears that the functional nature is not an inherent feature of coastal State jurisdiction over the EEZ and the continental shelf.

18

French writers call such jurisdiction ‘la compétence territoriale limitée ’ or ‘la compétence territoriale mineure’. See for instance, C. Rousseau, Droit international public: les compétences, vol. 3 (Paris, Sirey, 1977), p. 8; S. Bastid, Droit international public: principes fondamentaux, Les Cours de droit 1969–1970 (Université de Paris), p. 804; Nguyen Quoc Dinh et al., Droit international public, p. 536. In the United Kingdom, Brierly contrasts the fullest rights over territory, namely, territorial sovereignty with ‘minor territorial rights’. J. L. Brierly, The Law of Nations: An Introduction to the International Law of Peace, 6th edn (Oxford, Clarendon Press, 1963), p. 162. Akehurst also argued that there are lesser rights over territory, that is to say, ‘minor rights over territory’. P. Malanczuk, Akehurst’s Modern Introduction to International Law, 7th rev. edn (London and New York, Routledge, 1997), p. 158. In Japan, Kuwahara categorised marine spaces according to ‘la compétence territoriale majeure’ and ‘la compétence territoriale mineure’: T. Kuwahara, Introduction to International Law of the Sea (in Japanese) (Tokyo, Shinzansya, 2002), pp. 18–22. In essence, limited spatial jurisdiction is equivalent to ‘minor territorial rights’ or ‘la compétence territoriale limitée ’.

11

The Law of the Sea in Perspective (i) Marine spaces under national jurisdiction (a) Marine spaces under territorial sovereignty (or complete spatial jurisdiction): internal waters, the territorial sea, international straits, and archipelagic waters. (b) Marine spaces under sovereign rights (or limited spatial jurisdiction): the contiguous zone (where the EEZ is established), the EEZ and the continental shelf. (ii) Marine spaces beyond national jurisdiction the high seas and the Area.

Part I of this book will examine rules governing each jurisdictional zone according to this categorisation.

3 SOURCES OF THE INTERNATIONAL LAW OF THE SEA

3.1 Formal Sources

As a preliminary consideration, it is appropriate to brie national law of the sea.

19

fly

examine sources of the inter-

Each legal system contains rules that determine how rights and

obligations come into existence and how they can be changed. In international law, these rules are referred to as the sources of international law.

20

It is traditional to distinguish

between the formal sources and material sources. The formal sources refer to the source from which the legal rule derives its legal validity, while material sources denote the provenance of the substantive content of the rule. nised formal sources of international law are re

21

It is generally agreed that the recog-

flected in Article 38(1) of the Statute of the

International Court of Justice (ICJ):

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a.

international conventions, whether general or particular, establishing rules expressly

b.

international custom, as evidence of a general practice accepted as law;

c.

the general principles of law recognized by civilized nations;

d.

subject to the provisions of Article 59, judicial decisions and the teachings of the most

recognized by the contesting states;

fi

highly quali

ed publicists of the various nations, as subsidiary means for the

determination of rules of law.

19

Generally on this subject, see H. Caminos, ‘Sources of the Law of the Sea’, in R.-J. Dupuy and D. Vignes,

A Handbook on the New Law of the Sea

, vol. 1 (Dordrecht, Nijhoff, 1991), pp. 29– 139.

20

H. Thirlway, ‘The Sources of International Law’, in M. Evans (ed.),

International Law

, 4th edn (Oxford

University Press, 2014), pp. 91–92. For a recent monograph on sources of international law, see H. Thirlway,

The Sources of International Law Oppenheim s International Law

(Oxford University Press, 2014).

21

R. Jennings and A. Watts (eds.),

’

, 9th edn, vol. 1, Peace (Oxford University

Press, 1996), Introduction and Part I, p. 23. Yet, the terms ‘formal source ’ and ‘material source ’ are not used consistently by different writers. Thirlway,

The Sources

, pp. 3 –5.

12 International Law Governing Jurisdictional Zones As noted, the law of the sea is an inseparable part of international law in general. Accordingly, the law of the sea is generated from the same sources of international law set out in Article 38(1) of the Statute of the ICJ. As quoted above, Article 38(1) enumerates three formal sources of law, i.e. legal procedures by which a legal rule comes into existence: treaty, customary law and the general principles of law.

(a) Customary Law Customary international law has historically been the main source of international law, including

the

law

of

the

sea.

Customary

international

law

can

be

divided

into

two

categories. The

first

category is general customary law. While treaties are binding only upon the

parties to them, it is widely accepted that rules of general customary law are binding upon all States

in the international community.

In this regard, the ICJ, in

the

North Sea

Continental Shelf cases, stated that general or customary law rules and obligations

‘ by

their very nature, must have equal force for all members of the international community, and cannot therefore be the subject of any right of unilateral exclusion exercisable at will by any one of them in its own favour ’.

22

Thus, rules of general customary law are also

binding upon newly independent States, even though they did not participate in the formation of these rules concerned. Given that in the context of the law of the sea, there is no treaty to which all States are parties, rules of general customary law continue to be important. Customary law also comes into play in a situation where there is no speci

fic rule

in relevant treaties. The second category involves special or local customary law, which is applicable only within a de

fined

group of States. A well-known example of local customary law is the

practice of diplomatic asylum in Latin America. A special or local customary law may exist between only two States.

23

Orthodox legal theory sees rules of customary law as resulting from the combination of two elements: an objective element of ‘ extensive and virtually uniform’ State practice and the subjective or psychological element known as the opinio juris , i.e. a belief that the practice is rendered obligatory by the existence of a rule of law requiring it.

24

A clear statement of the

two-element theory can be seen in the Libya/Malta judgment: ‘It is of course axiomatic that the material of customary international law is to be looked for primarily in the actual practice 25

and opinio juris of States. ’

The two-element approach is generally endorsed in State practice

and the decisions of international courts and tribunals.

22 23

26

ICJ Reports 1969, pp. 38–39, para. 63.

Right of Passage over Indian Territory (Portugal v India), Judgment, ICJ Reports 1960, p. 39. Further, see H. Thirlway, The Law and Procedure of the International Court of Justice: Fifty Years of Jurisprudence, vol. I (Oxford University Press, 2013), pp. 224–225.

24

ICJ Reports 1969, pp. 42 –44, paras. 73–77. For an analysis of the two-element theory, see R. Kolb, ‘Selected Problems in the Theory of Customary International Law ’ (2003) 50 NILR, pp. 120–130.

25 26

ICJ Reports 1985, p. 29, para. 27.

fication of Customary International Law, 2018, Conclusion 2, available at:

ILC, Draft Conclusions on Identi

http://legal.un.org/ilc/guide/1_13.shtml.

13

The Law of the Sea in Perspective Concerning the objective element, at least three issues arise. The question of what constitutes State practice.

27

first issue involves the

Some writers consider that only physical acts

can count as State practice in the making of customary law. However, it appears that this restrictive view is not supported by the ICJ and States. The better view appears to be that, broadly, State practice includes not only physical acts, namely what they do, but also what they say. State practice also includes omissions because some rules of international law

fically, evidence of State practice can be detected in statements, press releases, of ficial manuals on legal

prohibit certain conduct by States. Speci diplomatic correspondence, policy questions, the opinions of of

ficial

legal advisers, comments by governments on drafts

produced by the International Law Commission (ILC), State legislation and national judicial decisions, etc. The second issue involves a degree of uniformity of State practice. While generality cannot be determined in abstract, it is generally recognised that universality is not required to establish a new rule of customary law. According to the ICJ, in order to deduce the existence of customary rules, it is suf consistent with such rules.

28

ficient that the conduct of States should, in general, be fied that general State

In this regard, the Court further speci

practice includes the practice of States whose interests are specially affected.

29

Historically

fluence in the development of the law of the sea.

the practice of maritime States had great in

However, as will be seen, the traditional law of the sea, which was designed to safeguard interests of maritime States only, was strongly criticised by the decolonised new States. The third issue involves a time element in customary law-making. It can be presumed that normally a long passage of time is needed to formulate rules of customary international law. However, it appears that the ICJ, in the North Sea Continental Shelf cases, took a more

flexible approach, stating that

‘the passage of only a short period of time is not

necessarily, or of itself, a bar to the formation of a new rule of customary international 30

law’ .

The

flexible approach may facilitate the formation of rules of customary law which

may be suitable for a rapidly changing international society. However, care should be taken in noting that the reduction of the time-element requirement does not directly support the 31

doctrine of ‘instant custom’ .

The subjective element, i.e, opinio juris, has been the subject of extensive debate among legal writers.

32

The well-known paradox of opinio juris is that States cannot trust in the

existence of a rule of customary law requiring them to act or refrain from acting, before a customary rule is established. At the initial stage of the formation of a rule of customary

27

Generally on the practice in international law, see ILA, Final Report of the Committee, Statement of Principles Applicable to the Formation of General Customary International Law (2000), pp. 13 et seq.; Société française pour le droit international, Colloque de Genève: La pratique et le droit international (Paris, Pedone, 2004); Thirlway, The Sources, pp. 63–72.

28 30 31

The Nicaragua case (Merits), ICJ Reports 1986, p. 98, para. 186.

29

ICJ Reports 1969, p. 43, para. 74.

Ibid. It seemed that the ICJ was wary about supporting the doctrine of ‘instant custom’. See the Nicaragua case (Merits), ICJ Reports 1986, pp. 97–98, para. 184.

32

Generally on this issue, see ILA, Final Report of the Committee, pp. 29 et seq.; Thirlway, The Sources, pp. 72–79.

14 International Law Governing Jurisdictional Zones law, it is illogical to consider that States feel a conviction to comply with a rule of law since there is as yet no legal obligation.

33

In response to this question, it would be suf

ficient to

consider that, at the initial stage, the States concerned regard the practice as conforming to 34

a rule which is a useful and desirable rule and one that should exist.

Considering that the

formation of customary law is a gradual process, it may be argued that a legal conviction matures gradually. Forms of evidence of opinio juris include: public statements made on behalf of States, of

ficial

publications, government legal opinions, diplomatic correspondence, decisions of

national courts, treaty provisions, and conduct in connection with resolutions adopted by an international organisation or at an intergovernmental conference. may not be easy to

find

36

the evidence of opinion juris.

35

In reality, however, it

In spite of this dif

ficulty,

the

majority opinion generally recognises the need for the subjective element in order to make custom as law distinct from custom as a mere fact. It must also be noted that an opinio juris can perform a crucial role in safeguarding rules of customary international law re

flecting

common interests of the international community, such as the principle of non-use of force. As an example, the ICJ, in the Nicaragua case (merits), gave much weight to an opinio juris re

flected in UN General Assembly resolutions when confirming the customary law character 37

of the principle of prohibiting the use of force.

Furthermore, the ICJ in its Advisory Opinion

concerning the Legality of the Threat or Use of Nuclear Weapons held that UN General Assembly resolutions ‘provide evidence important for establishing the existence of a rule or the emergence of opinio juris’.

38

Indeed, the UN General Assembly provides an institutional-

flected

ised forum to express an opinio juris. In appropriate circumstances, an opinion juris re

in UN General Assembly resolutions can be considered as a collective belief of the international community as a whole concerning a certain rule of international law. In relation to this, it is to be noted that the ICJ did not mechanically apply the two-

fication of a rule of customary law.

element test to the identi

39

For instance, the Court, in the

North Sea Continental Shelf cases, rigidly applied the two-element test of customary law to the equidistance method and refused to admit the customary law character of that method. However, the Court did not apply the two-element test to the equitable principles, and regarded these principles as a rule of customary law. This is a double standard. Whether

33

H. Kelsem, ‘Théorie du droit international coutumier’, in C. Leben (ed.), Hans Kelsen Ecrits français de droit international (Paris, PUF, 2001), p. 72.

34

fication (Leiden, Sijthoff, 1972), pp. 53 –54; by the same

H. Thirlway, International Customary Law and Codi writer, The Law and Procedure, p. 174.

35 36 37 38

ILC, Draft Conclusions on Identi

fication of Customary International Law (2018) Conclusion 10(2).

Kelsem, ‘Théorie du droit international coutumier’, pp. 73–74. ICJ Reports 1986, pp. 99–100, para. 188. Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996, pp. 254–255, para. 70. Yet, when deducing an opinio juris from a UN General Assembly Resolution, careful consideration must be given to its content and the conditions of its adoption. Ibid. See also J.-P. Pancracio, Droit de la mer, pp. 43–44 and 47; Thirlway, The Sources, pp. 79– 81.

39

P.-M. Dupuy, ‘Le juge et la règle générale’ (1989) 93 RGDIP, pp. 569 et seq.; G. Gaja, ‘The Protection of General Interests in the International Community: General Course on Public International Law (2011)’ (2012) 364 RCADI, pp. 37 et seq. See also S. Talmon, ‘Determining Customary International Law: The ICJ’s Methodology between Induction, Deduction and Assertion ’ (2015) 26 EJIL, pp. 417– 443.

15

The Law of the Sea in Perspective State practice is extensive, consistent and uniform is also subject to judgment of the Court.

40

fies

Furthermore, there is a trend that an international court or tribunal identi

a

rule of international law, merely referring to the dictum of another court or tribunal or the ILC, without examining State practice and opinio juris. This is called institutional circularity.

41

While the identi

fication of a rule of customary international law through institutional

circularity can contribute to preventing the fragmentation of international law, the practice of institutional circularity may also entail the risk of detaching the rule from actual State practice. In any case the manner of the application of the two-element test by an international court or tribunal may vary on a case-by-case basis. 42

Furthermore, some mention should be made of the doctrine of the persistent objector.

According to the doctrine of the persistent objector, a State which objects consistently to the application of a rule of law while it is still in the process of becoming such a rule may be able to ‘opt out’ of the application of the rule after it has acquired the status of a rule of general customary law.

43

The origin of the doctrine of the persistent objector is usually

traced back to the law of the sea case, i.e. the 1951 Norwegian Fishery case. In this case, the United Kingdom disputed the legality of the Norwegian baselines because they were inconsistent with a rule of customary law referred to as the ‘ten-mile rule’ . While the ICJ did not admit the argument by the United Kingdom, the Court stated: ‘In any event the tenmile rule would appear to be inapplicable as against Norway inasmuch as she has always opposed any attempt to apply it to the Norwegian coast. ’

44

Not a few writers support the

doctrine of the persistent objector. However, it appears that the doctrine of the persistent objector is not free from dif

ficulty

in theory and practice. Indeed, there is little State or

judicial practice to support the doctrine. Furthermore, it appears dif

ficult to explain why the

decolonised new States – which had no chance to object to the formation of a customary rule – are automatically bound by a rule of customary law, while persistent objectors could opt out from the customary rule. It should also be noted that persistent objectors could not opt out from a norm of jus cogens.

(b) Treaties Under Article 2(1)(a) of the 1969 Vienna Convention on the Law of Treaties (hereinafter the Vienna

Convention),

45

a

treaty

is

de

fined

as

‘an

international

agreement

concluded

between States in written form and governed by international law, whether embodied in

40 41

Ibid., p. 432. Further, Y. Tanaka, ‘The Impacts of the Tribunal’s Jurisprudence on the Development of International Law’, in International Tribunal for the Law of the Sea, The Contribution of the International Tribunal for the Law of

–

the Sea to the Rule of Law: 1996 2016 (Leiden, Brill, 2018), pp. 162– 167. See also W. Alschner and D. Charlotin, ‘The Growing Complexity of the International Court of Justice’s Self-Citation Network’ (2018) 29 EJIL, pp. 83–112. 42

Generally on this subject, see, for instance, J. I. Charney, ‘The Persistent Objector Rule and the Development of Customary International Law’ (1985) 56 BYIL, pp. 1 –24; P.-M. Dupuy, ‘A propos de l ’opposabilité de la coutume générale: enquête brève sur “l’objecteur persistant”’, in Le droit international au service de la paix, de la justice et du développement: Mélanges Michel Virally (Paris, Pedone, 1991), pp. 257–272.

43 44

ILC, Draft Conclusions on Identi ICJ Reports 1951, p. 131.

45

fication of Customary International Law (2018), Conclusion 15. For text, see 1155 UNTS, p. 331. Entered into force 27 January 1980.

16 International Law Governing Jurisdictional Zones a single instrument or in two or more related instruments and whatever its particular designation’ . While the de subjects treaties.

of

46

international

finition is limited to agreement concluded between States, other law,

such

as

international

Thus Paul Reuter suggested a broader de

organisations,

finition

can

also

conclude

of treaties, as ‘ an expression

of concurring wills attributable to two or more subjects of international law and intended to have legal effects under the rules of international law ’.

47

While a treaty may be described in various ways, such as ‘ convention’, ‘agreement ’ or 48

‘ protocol’ , these terms are all interchangeable.

Treaties can be bilateral, i.e. between two

parties, or multilateral, i.e. between three or more parties. Treaties can also be ‘universal’ or 49

‘ regional’.

In any case a treaty is binding only on the parties to it, unless an obligation stated

in a treaty is or becomes an obligation of general customary law.

50

In this regard, Article 26 of

the Vienna Convention, under the heading ‘pacta sunt servanda ’, provides: ‘Every treaty in force is binding upon the parties to it and must be performed by them in good faith.’ As a corollary of the principle of pacta sunt servanda, the principle res inter alios acta nec noct nec

fi

prodest (a transaction between others effects neither disadvantage nor bene t) applies to treaties.

51

Under Article 34 of the Vienna Convention, that principle is expressed as follows: ‘ A

treaty does not create either obligations or rights for a third State without its consent.’

52

A State becomes bound by a treaty by becoming a party to it. Under Article 11 of the Vienna Convention, ‘ [t]he consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, rati

fication, acceptance, approval

or accession, or by any other means if so agreed ’. As the ICJ observed in the Cameroon/

fi

Nigeria case, a two-step procedure consisting of signature and rati cation is frequently provided for in provisions regarding entry into force of a treaty, even though there are also cases where a treaty enters into force immediately upon signature. rati

fication

is the most popular method adopted.

54

In practice, consent by

Normally, treaties provide for the

conditions in which they will enter into force, such as a speci

46

53

fied number of ratifications.

A. Aust, Modern Treaty Law and Practice , 3rd edn (Cambridge University Press, 2013), p. 15; P. Reuter,

Introduction to the Law of Treaties (London and New York, Kegan Paul International, 1995), pp. 32–33. 47 48 49

Ibid., p. 30. Ibid., p. 29. In fact, Article 2(1)(a) of the Vienna Convention states ‘whatever its particular designation’. The distinction between law-making treaty and contractual treaties is debatable. Since normally treaties

ficult to classify treaties on the basis of their substantive features.

have no homogeneous content, it is dif

Ibid., pp. 26–27. See also Nguyen Quoc Dihn et al., Droit international public, p. 136. 50 51 52

Article 38 of the Vienna Convention. H. Thirlway, ‘The Sources of International Law’, in Evans (ed.), International Law , p. 96. However, the Vienna Convention provides two exceptions. First, under Article 35 of the Vienna Convention, an obligation arises for a third State from a provision of a treaty if the parties to the treaty intended the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing. Second, under Article 36, a right arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to accord that right either to the third State, or to a group of States to which it belongs, or to all States, and the third State assents thereto.

53

Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening), Judgment, ICJ Reports 2002, p. 429, para. 264.

54

fication is an

M. Shaw, International Law, 8th edn (Cambridge University Press, 2017), p. 660. Rati

international act carried out on the international plane, even though parliamentary approval of a treaty may well be required. Aust, Modern Treaty Law and Practice, p. 95.

17

The Law of the Sea in Perspective At the global and regional levels, various aspects of the law of the sea are currently governed by a considerable number of treaties. Undoubtedly, the LOSC is the most important treaty in this book,

55

The

field. While there will be no need to delve into the law of treaties in this

two issues call for brief comments.

first point involves the interaction between treaties and customary law. 57

may generate three effects in relation to rules of customary law.

56

A treaty

First, a treaty may

embody already established rules of customary law. This is called the declaratory effect. In the context of the law of the sea, a good example is the Geneva Convention on the High Seas. In fact, the Preamble of the Convention on the High Seas explicitly refers to the codi

fication of the rules of international law relating to the high seas. As we shall discuss

later, the LOSC also contains quite a few provisions embodying well-established rules of customary law. Second, where a treaty includes rules re

flecting State practice prior to the

adoption of the treaty, such rules may be ripe for transition from lex ferenda to lex lata. This is called the crystallising effect. It can be seen in some provisions of the Geneva Convention on the Continental Shelf. In fact, the ICJ, in the North Sea Continental Shelf cases, ruled that Articles 1 to 3 of the Convention on the Continental Shelf were regarded as re

flecting, or as crystallising, received or at least emergent rules of customary inter58

national law relative to the continental shelf.

Third, a treaty may generate a new rule of

customary law. It is possible that after a convention has come into force, States other than the parties to it

find it convenient to apply the convention rules in their mutual relations.

Such State practice may lead to the development of a new customary rule. This is called the generating effect. The second point concerns the interrelationship between relevant treaties. The growing number of treaties necessitates coordination between treaties. Such coordination is required at the interpretation level. For instance, the LOSC makes frequent reference to ‘generally accepted international rules and standards’ . Such rules and standards are elaborated by speci

fic

treaties relating to marine issues. Hence the provisions of the LOSC must be

interpreted by taking these agreements into account. The provisions of the LOSC must also be read together with the subsequently adopted 1994 Implementation Agreement and the 1995 Fish Stocks Agreement.

(c) General Principles of Law Originally, ‘general principles of law recognised by civilized nations ’ were provided in Article 38 of the Statute of the Permanent Court of International Justice (PCIJ) with a view to preventing non liquet, i.e. a

55

finding that a particular claim could neither be upheld nor

For a recent monograph on the law of treaties, see R. Kolb, The Law of Treaties: An Introduction (Cheltenham, Edward Elgar, 2016).

56

Generally on this issue, see Y. Dinstein, ‘The Interaction between Customary International Law and Treaties ’ (2006) 322 RCADI, pp. 243 –427.

57

North Sea Continental Shelf, ICJ Reports 1969, pp. 38 –39, paras. 61– 64; the Nicaragua case (Merits), ICJ Reports 1986, p. 95, para. 177. See also Kolb, The Law of Treaties, pp. 260–262; Aust, Modern Treaty Law and

Practice, pp. 9– 12. 58

ICJ Reports 1969, p. 39, para. 63.

18

International Law Governing Jurisdictional Zones rejected because of lack of an existing applicable rule of law.

59

There are two possible

interpretations with regard to the nature of the principles. One interpretation is that the principles concerned refer to legal principles shared by municipal legal systems. According to this interpretation, ‘general principles of law’ can be derived from a comparison of the various systems of municipal law. Another interpretation is that the general principles of law also include general principles applicable to legal relations generally.

60

In practice,

neither the ICJ nor its predecessor, i.e. the PCIJ, have based a decision entirely and directly on such general principles.

61

In the law of the sea, general principles of law are of limited

value. Hence it may be said that customary international law and treaties constitute two main sources of the international law of the

sea.

3.2 Material Sources

(a) Judicial Decisions and the Writings of Publicists Material sources provide evidence of the existence of rules, which, when proved, have the status of legally binding rules of general application. Article 38(1)(d) of the Statute of the ICJ refers to ‘judicial decisions and the teaching of the most highly quali

fied publicists of

the various nations, as subsidiary means for the determination of rules of law ’. Judicial

fluence on the law of the sea and international law in

decisions have had an important in general.

62

Four functions of judicial decisions must, in particular, be highlighted.

First, the existence of rules of law, and in particular rules of customary international law, is often a matter for discussion. By applying a speci

fic

rule to a particular case or

determining the breach of the rule concerned, international courts identify the existence of the rule in positive international law (the identi

fication of rules). Second, by confirming

dicta and/or precedents of various judicial organs with regard to the interpretation and application of rules of international law, the international courts contribute to further consolidating the normative status of these rules (the consolidation of rules). Third, it is not infrequent that the meaning of rules of international law, customary or conventional, becomes a subject of international disputes. International courts perform a valuable role in clarifying the meaning and scope of relevant rules through international adjudication (the clari

fication

of rules). Fourth,

judicial decisions may have a formative

effect on the

development of international law (the formation of rules). As typically shown in the law of maritime delimitation, the ICJ signi

59 61

ficantly contributes to the development of the law of

The Sources, p. 93. Today the term ‘civilized’ is out of place. Ibid., p. 95. Ibid., pp. 94–96. According to Thirlway, the only possible candidate may be the Corfu Channel judgment that referred to ‘certain general and well-recognised principles’ including ‘elementary considerations of humanity ’. Ibid., Thirlway,

60

p. 93. 62

In this regard, see V. Lowe and A. Tzanakopoulos, ‘The Development of the Law of the Sea by the

The Development of International Law by the International Court of Justice (Oxford University Press, 2013), pp. 177–193; P. Tomka, ‘The Contribution of the International Court of Justice to the Law of the Sea’, in The IMLI Manual, vol. I, pp. 618 –642; F. Orrego Vicuña, ‘Le role de la jurisprudence internationale’, in M. Forteau and J.-M. Thouvenin (eds.), Traité de droit international de la mer (Paris, Pedone, 2017), pp. 77–95. See also M. Andenas and J. R. Leiss, ‘The Systemic Relevance of “Judicial Decisions” in Article 38 of the ICJ Statute’ (2017) 77 ZaöRV , pp. 907–972. International Court of Justice’, in C. J. Tams and J. Sloan (eds.),

19

The Law of the Sea in Perspective the sea through its jurisprudence. The jurisprudence of the International Tribunal for the Law of the Sea (ITLOS) and Annex VII Arbitral Tribunal are also increasingly important in 63

the development of the law.

It has been recognised that some writers, such as Grotius, Vattel,

66

have had a formative in

64

65

Bynkershoek

and Emer de

fluence on the development of international law. Further-

more, the monumental treatise of Gilbert Gidel, Le droit international public de la mer (3 vols., Paris, 1932– 34) has been considered as a work of great authority in this

field. Some

authoritative expert bodies, such as the ILC and the Institut de droit international, also furnish important materials analogous to the writings of publicists. Because of the lack of supreme legislative and judicial authorities in the international

ficult to identify and interpret rules of customary international

community, it is often dif

law. It is also not uncommon that a treaty provision may allow more than two different interpretations. Thus, even though there is a need for caution, academic writings may have a signi national

ficant

role to play in the identi

fication

and interpretation of rules of inter-

law.

(b) Non-Binding Instruments Another material source which needs particular notice is non-binding instruments, such as resolutions, declarations and guidelines adopted under the auspices of the UN or other international organisations.

67

The non-binding nature of instruments does not mean that

ficance. In fact, non-binding instruments have an influence on

they are without legal signi

68

the making of international law.

First, some non-binding instruments lead to the conclusion of a new multilateral treaty or speci

fic

provisions of the treaty. An example can be seen in the 1970 Declaration of

Principles Governing the Deep Seabed. The 1970 Declaration formed the basis for Part XI of the LOSC concerning the Area.

63

69

Further, see Y. Tanaka, ‘Impacts of the Tribunal ’s Jurisprudence on the Development of International Law’, in International Tribunal for the Law of the Sea, pp. 161– 178.

64

For Hugo Grotius, see P. Haggenmacher, ‘Hugo Grotius (1583– 1645)’, in B. Fassbender and A. Peters (eds.), The Oxford Handbook of the History of International Law (Oxford University Press, 2012), pp. 1098– 1101.

65 66 67

See K. Akashi, ‘Cornelius Van Bynkershoek (1673– 1743)’, in ibid., pp. 1110–1113. See E. Jouannet, ‘Emer de Vattel (1714–1767) ’, in ibid., pp. 1118 –1121. Non-binding instruments are often called ‘soft law’. However, the concept of ‘soft law’ has more than one meaning. In light of its ambiguity, there appears to be scope to consider the question of whether ‘soft law ’ is useful as a concept for analysis. If the term ‘soft law’ is intended to mean that an instrument is not legally binding, it will be better to use the term ‘non-binding instrument’. Furthermore, the ‘soft ’ and ‘law’ elements are contradictory. The utility of ‘soft law’ as a concept for analysis is questioned by writers, though this does not automatically mean that non-binding instruments have no role to play in international law. This book uses the term ‘non-binding instruments’. For a critical analysis of ‘soft law’, see R. Ida, ‘Formation des norms internationales dans un monde en mutation: critique de la notion de soft law’, in Le droit international au service de la paix, de la justice et du développement: Mélanges Michel Virally (Paris, Pedone, 1991), pp. 333 et seq. See also Thirlway, The Sources , pp. 163 et seq.

68 69

See also A. Boyle, ‘Soft Law in International Law-Making ’, in Evans (ed.), International Law, pp. 118–136. UN Resolution 2749 (XXV) adopted on 17 December 1970. The full title is: Declaration of Principles Governing the Seabed and the Ocean Floor, and the Subsoil Thereof, Beyond the Limits of National Jurisdiction. The legal regime of the Area will be examined in Chapter 5, section 3.

20 International Law Governing Jurisdictional Zones Second, some non-binding instruments may provide guidance on interpretation of a treaty and amplify the terms of a treaty. A good example is the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations.

70

This Declaration further

field of the law of the sea, for instance, the 1995 FAO Code of Conduct for Responsible Fisheries ampli fies relevant provisions of the elaborates the meaning of the UN Charter. In the

LOSC and the 1995 Fish Stocks Agreement.

71

Furthermore, where a non-binding instrument

forms generally accepted standards established through the competent international organisation, such as the IMO, the instrument must be read together with relevant provisions of the LOSC by rules of reference.

firm existing rules of customary international

Third, some non-binding instruments con

law. For example, the Arbitral Tribunal, in the 1977 Texaco Overseas Petroleum Company case, declared that the UN General Assembly Resolution on Permanent Sovereignty over Natural Resources (1803 (XVII)) re

flected

‘ the state of customary law existing in this

field . ’

72

Fourth, non-binding instruments may provide for emergence of new rules of customary international law. By way of example, one may quote the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples, which seems to have given a strong impetus to the establishment of the right of self-determination as a principle of international law.

73

(c) Unilateral Acts In principle, the unilateral acts of a State cannot result in rights and obligations. An oftcited example on this matter is the 1974 Nuclear Tests case between Australia and France, and between New Zealand and France. In this case, the ICJ ruled that:

It is well recognized that declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations . . . When it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking, the State being 74

thenceforth legally required to follow a course of conduct consistent with the declaration.

However, this is an exceptional case, and great caution must be taken if seeking to take any general principles from this judgment.

75

In fact, the Chamber of the ICJ, in the 1986

Frontier Dispute case, stated that it had a duty to show even greater caution when it is a

70 71

UN General Assembly, 2625 (XXV) adopted on 24 October 1970. This is a voluntary instrument. The Code of Conduct was unanimously adopted on 31 October 1995 by the

fi shery/code/en.

FAO Conference: www.fao.org/ 72

Texaco Overseas Petroleum Company/California Asiatic Oil Company v Libyan Arab Republic (1978) 17 ILM p. 30, para. 87.

73 74 75

UN General Assembly Resolution 1514 (XV) adopted on 14 December 1960. The Nuclear Tests case (Australia v France), ICJ Reports 1974, p. 267, para. 43. See Dissenting Opinion of Judge de Castro, ibid ., pp. 373–374, para. 3; Thirlway, The Sources, pp. 44–52.

21

The Law of the Sea in Perspective question of a unilateral declaration not directed to any particular recipient.

76

In the context

of the law of the sea, the unilateral statements of a State have had some formative effect on the development of the law. A case in point is the 1945 Truman Proclamation on the Continental Shelf. As we shall see later, the Truman Proclamation constituted the starting point of the legal regime on the continental shelf.

77

(d) Considerations of Humanity Finally, considerations of humanity in the law of the sea should be mentioned. As human activities in the oceans, including navigation, are not free from risk, elements of humanity must be taken into account in the application of the law of the sea. In judicial decisions, a classical reference to considerations of humanity can be seen in the 1949 Corfu Channel judgment. In this case, the Court relied on ‘elementary considerations of humanity ’ as 78

‘ general and well-recognized principles’ .

Likewise, ITLOS, in the M/V ‘Saiga’ (No. 2) case,

clearly stated: ‘ Considerations of humanity must apply in the law of the sea, as they do in 79

other areas of international law. ’ 80

Lexie Incident case in 2015.

firmed by the Tribunal in the Enrica

This view was con

Furthermore, in a particular context of prompt release, ITLOS

held: ‘ The obligation of prompt release of vessels and crews includes elementary consider81

ations of humanity and due process of law. ’

Considerations of humanity are embodied in treaties. In 1979, for instance, the International Convention on Maritime Search and Rescue was adopted.

82

It can also be observed

that several provisions of the LOSC, such as Articles 18(2), 24(2), 44, 98 and 146, re

flect

considerations of humanity. In this connection, particular attention must be paid to the interaction between the law of the sea and human rights. The protection of human rights is crucial when considering, for instance, prevention of maritime migration, prosecution of piratical suspects and rights of indigenous people in the context of conservation of marine species and biological diversity.

76 77 79

83

The Frontier Dispute case (Burkina Faso v Republic of Mali), ICJ Reports 1986, p. 574, para. 39. See Chapter 4, section 4 of this book.

78

ICJ Reports 1949, p. 22.

The M/V ‘ Saiga’ (No. 2) case (Saint Vincent and the Grenadines v Guinea), Judgment, ITLOS Reports 1999, p. 62, para. 155.

80

The ‘ Enrica Lexie’ Incident case (Italy v India), Request for the Prescription of Provisional Measures, Order, ITLOS Reports 2015, p. 204, para. 133. The Annex VII Arbitral Tribunal also supported the Tribunal’s view in the ‘Enrica Lexie ’ Incident Arbitration. Request for Prescription of Provisional Measures, Order of 29 April 2016, p. 27, para. 104 available at: https://pca-cpa.org/en/cases/117/.

81

The ‘ Juno Trader’ case (Saint Vincent and the Grenadines v Guinea-Bissau), Prompt Release, ITLOS Reports 2014, pp. 38– 39, para. 77. For prompt release, see Chapter 13, section 5.7 of this book.

82 83

1405 UNTS , p. 119. Entered into force 22 June 1985. Generally on this issue, see, for instance, I. Papanicolopulu, ‘Human Rights and the Law of the Sea ’, in IMLI

Manual, pp. 509 –532; E. Papastavridis, ‘European Convention on Human Rights and the Law of the Sea: The Strasbourg Court in Unchartered Waters?’, in M. Fitzmaurice and P. Merkouris (eds.), The Interpretation and

Application of the European Convention on Human Rights: Legal and Practical Implications (Leiden, Brill, 2012), pp. 117–146; D. Guilfoyle, ‘Human Rights Issues and Non-Flag State Boarding of Suspect Ships in International Waters’, in C. R. Symmons (ed.), Selected Contemporary Issues in the Law of the Sea (Leiden, Nijhoff, 2011), pp. 83–104; B. H. Oxman, Human Rights and the United Nations Convention on the Law of the Sea (1997) 36 Columbia Journal of International Law, pp. 399–429; T. Treves, ‘Human Rights and the Law of the Sea ’ (2010) 4 Berkeley Journal of International Law, pp. 1 –14.

22

International Law Governing Jurisdictional Zones As Treves observed, ‘[r]ules of the Law of the Sea are sometimes inspired by human rights considerations and may or must be interpreted in light of such considerations ’.

84

In inter-

national adjudication, Article 293 of the LOSC that allows the application of ‘other rules of international law not incompatible with this Convention ’ and Article 31(3)(c) of the Vienna Convention may provide relevant instruments to accommodate rules of international human rights law.

85

4 PRINCIPLES OF THE INTERNATIONAL LAW OF THE SEA

4.1 Principle of Freedom

The international law of the sea is governed by three principles: the principle of freedom, the principle of sovereignty and the principle of the common heritage of mankind. Traditionally the law of the sea has been dominated by the principle of freedom and the principle of sovereignty. The French jurist R.-J. Dupuy summarised the essence of the law as follows:

The sea has always been lashed by two major contrary winds: the wind from the high seas towards the land is the wind of freedom; the wind from the land toward the high seas is the bearer of sovereignties. The law of the sea has always been in the middle between these

fl

con

86

icting forces.

The principle of freedom aims to ensure the freedom of various uses of the oceans, such as

flight, laying submarine cables fishing and marine scientific research.

navigation, over islands,

and pipelines, construction of arti

ficial

Historically the principle of freedom may primarily be thought of as aiming to ensure the freedom of navigation in order to advance trade and commerce overseas.

87

At the start

of the era of European expansion in global navigation, the papal bull Inter Caetera of 4

May

1493

discovered

84 85

issued

and

by

Pope

Alexander

to-be-discovered

lands,

VI,

that

granted were

Spain

divided

and

into

Portugal two

with

all a

newly

straight

Ibid., p. 12. Ibid., p. 6. Human rights have been taken into account by ITLOS in its jurisprudence. See P. Chandrasekhara Rao and P. Gautier, The International Tribunal for the Law of the Sea: Law, Practice and Procedure (Cheltenham, Edward Elgar, 2018), pp. 310–313.

86

R.-J. Dupuy, ‘The Sea under National Competence’ in Dupuy and Vignes, A Handbook, vol. 1, p. 247. See also D. P. O’Connell (I. A. Shearer ed.), The International Law of the Sea , vol. 1 (Oxford, Clarendon Press, 1982), p. 1.

87

Against the dominance of the European perspective on the development of the freedom of the seas, it has been argued that such freedom had already become an established custom as shown in the Maritime Codes of Macassar and Malacca compiled as early as the end of the thirteenth century. R. P. Anand, Origin and Development of the Law of the Sea (The Hague, Nijhoff, 1982), pp. 30–31; A. Kirchner, ‘Law of the Sea, History of’ in Max Planck Encyclopedia, para. 21.

23

The Law of the Sea in Perspective 88

line – towards the west of it unto Spain and the east, Portugal.

However, this was not

welcomed by other maritime nations. In this context, mention should be made of the Mare Liberum by the Dutch jurist Hugo Grotius.

89

In February 1603, a Dutch squadron captured Sta. Catharina , a Portuguese

galleon, in the straits of Singapore, and brought the vessel to Amsterdam. When the vessel’ s extremely rich contents were sold as prize, controversy arose with regard to the legality of the capture. Grotius was asked to prepare an opinion on this subject at the request of the Dutch East India Company. The treatise written by Grotius was later known as De Jure Praedae Commentarius , which was not fully published until 1868, with only the twelfth 90

chapter published anonymously in 1609 as Mare Liberum.

In this chapter, Grotius upheld

the freedom of navigation and trade to the East Indies. This episode would seem to demonstrate that the freedom of the seas was essentially characterised by the economic and political interests of maritime powers. Grotius’ argument met with criticism from various writers, such as Scottish academic William Welwood, de Freitas,

93

91

92

English lawyer and scholar John Selden,

and others,

94

Portuguese friar Seraphin

who claimed sovereignty over coastal seas for their State’ s

interests. The debate lasted throughout the seventeenth century, but the principle of freedom of the seas has been consolidated through State practice. Indeed, freedom of navigation was essential for maritime powers in order to secure their trade; and when European rivalry developed into global con

flicts in the eighteenth century, overseas naval

bases provided strategic interests, especially for Great Britain, the leading maritime power

88

The line was drawn from the Arctic pole to the Atlantic pole, 100 leagues from the islands of Azores and Cape Verde. In 1494, Spain and Portugal concluded a treaty at Tordesillas, shifting the Papal’s line to 370 leagues from west of the Cape Verde Islands. The bull Inter Caetera referred only to islands and mainlands, but this was meant to include vast oceans and exclusive navigational rights and trade monopoly between them. Pope Alexander VI, Inter Caetra, translation in English, available at: www.papalencyclicals.net/alex06/alex06inter.htm; F. Latty, ‘Du droit coutumier aux premières tentatives

fication

de codi 89

’ in Forteau and Thouvenin (eds.), Traité, p. 38.

H. Grotius, Mare Liberum (Leiden, 1609). For an English translation, along with the Latin text on the basis of the Elzevir edition of 1633, see H. Grotius, The Freedom of the Seas or the Right Which Belongs to the Dutch

fin) (originally published by the

to Take Part in the East Indian Trade (translated by Ralph Van Deman Magof

Carnegie Endowment for International Peace, New York, Oxford University Press, 1916; reprint, New Jersey, Lawbook Exchange, 2001). For another translation, see H. Grotius, The Free Sea (transl. R. Hakluyt, ed. and introduction by D. Armitage) (Indianapolis, Library Fund, 2004); R. Feenstra (ed./transl.), Hugo Grotius Mare

–

Liberum 1609 2009: Original Latin Text and English Translation (Leiden, Brill, 2009). For an analysis of the Mare Liberum, see for instance, G. van Nifterik and J. Nijman, ‘Introduction: Mare Liberum Revisited (1609–2009)’ (2009) 30 Grotiana, pp. 3 –19; A. Weindl, ‘Grotius’s Mare Liberum in the Political Practice of Early-Modern Europe’, ibid., pp. 131–151. 90

D. J. Bederman, ‘The Sea’, in B. Fassbender, A. Peters and S. Peter (eds.), The Oxford Handbook of the History of International Law (Oxford University Press, 2014), p. 366; D. Armitage, ‘Introduction ’, in Grotius, The Free Sea, pp. xii– xiii; Anand, Origin and Development, p. 79.

91 92 93 94

W. Welwood, Abridgment of All Sea Lawes (1613) and De Dominio Maris (1615). J. Selden, Mare Clausum (c. 1618, published in 1635). Seraphin de Freitas, De Justo Imperio Lusitanorum Asiatico (1625). This was called ‘The Battle of the Books’. Further, see Bederman, ‘The Sea’, pp. 366–369; Armitage, ‘Introduction’ in Grotius, The Free Sea, pp. xiii –xix; T. Scovazzi, ‘The Evolution of International Law of the

Sea: New Issues, New Challenges’ (2000) 286 RCADI, pp. 66–68; R. Feenstra, Hugo Grotius Mare Liberum

–

1609 2009, pp. ix–xxviii; O ’Connell, International Law of the Sea, vol. 1, pp. 9–14.

24

International Law Governing Jurisdictional Zones of the time. During the nineteenth century, freedom of the seas was consolidated by the Pax Britannica. Overall the freedom of navigation contributed to maritime powers securing their economic interests and maritime networks, and expanding their political or military in

fluence over their overseas colonies.

95

4.2 Principle of Sovereignty

In contrast to the principle of freedom, the principle of sovereignty seeks to safeguard the interests of coastal States. This principle essentially promotes the extension of national jurisdiction into offshore spaces and supports the territorialisation of the oceans. It has been considered that the concept of the modern State was formulated by Emer de Vattel.

96

It is

not surprising that the modern concept of the territorial sea was clearly presented by the same writer. In his book published in 1758, de Vattel stated:

When a nation takes possession of certain parts of the sea, it takes possession of the empire over them, as well as of the domain, on the same principle which we advanced in treating of the land (§205). its territory:

These parts of the sea are within the jurisdiction of the nation, and a part of

the sovereign commands there; he makes laws, and may punish those who violate

them; in a word, he has the same rights there as on land, and, in general, every right which the laws of the state allow him.

97

On the other hand, de Vattel denied that the high seas could be appropriated by States.

98

Thus, he clearly distinguished the sea under territorial sovereignty from the high seas. De Vattel ’ s conception represented a prototype of the law of the sea in a modern sense. A maritime belt adjacent to the coast became increasingly important for coastal States for purposes of neutrality, security, customs control, sanitary regulations,

fisheries

and

economic policy on the basis of the doctrine of mercantilism. The claim over the maritime belt was thus consolidated as the territorial sea through State practice in the nineteenth century. At the international level, the dualism in the oceans which distinguishes the territorial sea from the high seas was clearly con

95

firmed in the

Bering Sea Fur-Seals case

Nguyen Quoc Dinh et al., Droit international public, p. 1334; A. Hoffmann, ‘Navigation, Freedom of’, Max Planck Encyclopedia, para. 3; Bederman, ‘The Sea’, pp. 369–372.

96

Albert de Lapradelle argued that Emer de Vattel was the

first writer who had a clear and complete conception

of the modern State. Albert de Lapradelle, ‘Introduction’ to Emer de Vattel, Le droit des gens ou principes de la loi naturelle, appliqués à la conduite et aux affaires des Nations et des Souverains (The Classics of International Law, Washington, Carnegie Institution of Washington, 1916), p. xlvi. For an English translation of Emer de Vattel’s Le droit des gens, see Emer de Vattel, The Law of Nations; or Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns (transl. Joseph Chitty, Philadelphia, T. and J. W. Johnson and Co., Law Booksellers, 1853). In this book, Emer de Vattel’s arguments will be quoted from the English translation to enhance comprehension. 97

Emphasis added. Ibid., section 295.

98

Ibid., section 281.

25

The Law of the Sea in Perspective between Great Britain and the United States of America of 1893.

99

A principal issue of this

arbitration related to the question of whether the United States had any rights of protection in the fur-seals frequenting the US islands in the Bering Sea when such seals are found outside the ordinary 3-mile limit. In this case, the Arbitral Tribunal rejected, by a majority of

five to two, the right of the United States to the ocean beyond the ordinary 3-mile limit

with respect to the protection of the fur-seals industry.

100

In so ruling, the Arbitral Tribunal

made clear that the coastal State could not exercise jurisdiction over the high seas beyond the 3-mile limit. It would seem to follow that the coastal State can exercise jurisdiction over the sea up to the 3-mile limit. In summary, on the basis of the principle of freedom and the principle of sovereignty, the ocean has been divided into two categories. The

first

category relates to marine space

adjacent to coasts subject to the national jurisdiction of the coastal State. The second category concerns marine space beyond national jurisdiction where the principle of freedom applies. Until the mid-twentieth century, the scope of the territorial sea was limited to the narrow maritime belt, and the enormous area of the oceans remained the high seas. It could well be said that the oceans were dominated by the principle of freedom at that time. After World War II, however, coastal States increasingly extended their jurisdiction towards the high seas in order to control offshore resources. It may be said that the principle of sovereignty was a catalyst for development of the law of the sea after World War II. In any case, there is little doubt that the coordination of the economic and political interests of maritime States and coastal States has until recently been a central issue in the international law of the

sea.

4.3 Principle of the Common Heritage of Mankind

The third principle of the law of the sea is the common heritage of mankind. This principle is enshrined in Part XI of the LOSC. As will be seen in Chapter 5, the principle of the common heritage of mankind emerged as an antithesis to the principles of sovereignty and freedom. This principle is distinct from the traditional principles in two respects. First, while the principles of sovereignty and freedom aim to safeguard the interests of individual States, the principle of the common heritage of mankind seeks to promote the common interest of mankind as a whole. It may be argued that the term ‘mankind’ is a transspatial and transtemporal concept. It is transspatial because ‘mankind ’ includes all people on the planet. It is transtemporal because ‘mankind’ includes both present and future

99

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 Of

fice, 1895). The

Award, together with a summary of facts and arguments in detail, was reproduced in J. B. Moore, History and Digest of the International Arbitrations to Which the United States Has Been a Party, vol. 1

fice, 1898), pp. 75 et seq.; C. A. R. Robb (ed.), International

(Washington DC, Government Printing Of

Environmental Law Reports, vol. 1 (Cambridge University Press, 1999), pp. 43 et seq. 100

Moore, History and Digest, p. 949.

26

International Law Governing Jurisdictional Zones generations.

101

It would seem to follow that the common interest of mankind means the

interest of all people in present and future generations. Second, the principle of the common heritage of mankind focuses on ‘mankind ’ as a novel actor in the law of the sea. ‘ Mankind’ is not a merely abstract concept. As we shall see in Chapter 5, under the LOSC ‘mankind’ has an operational organ, i.e. the International Seabed Authority, acting on behalf of mankind as a whole. To this extent, it can reasonably be argued that mankind is emerging as a new actor in the law of the sea. In this sense, the principle of the common heritage of mankind introduces a new perspective, which is beyond the State-to-State system, in the law of the

sea.

5 THE CODIFICATION OF THE LAW OF THE SEA

fi

5.1 The Hague Conference for the Codi cation of International Law (1930) Originally the law of the sea consisted of a body of rules of customary international law. Such unwritten rules often require further clari essentially quali codi

fication

fied

fication.

As rules of customary law are

by the times, there is also a need for adaptability. To this end,

of international law undertaken by a representative body of experts is a

notable contribution to the development of the law. This is particularly true of the law of the sea. Initially, attempts to codify the rules of the international law of the sea were undertaken by various non-governmental bodies, ation,

103

104

Institut de droit international

102

such as the International Law Associ-

and the Harvard Law School.

105

Later, such

attempts were made by intergovernmental conferences. The

first

intergovernmental attempt to codify the law of the sea was the 1930 Hague

Conference for the Codi

fication of International Law.

106

The Hague Conference was insti-

gated by the League of Nations between 13 March and 12 April 1930, and was attended by forty-seven governments and an observer, i.e. the USSR.

107

The Conference aimed to codify

international law concerning three subjects, namely nationality, State responsibility and

101

R.-J. Dupuy, ‘La notion de patrimoine commun de l’humanité appliquée aux fonds marins’, in Dialectiques du droit international: souveraineté des Etats, communauté internationale et droits de l’humanité (Paris, Pedone, 1999), pp. 189 –194.

102

T. Treves, ‘Historical Development of the Law of the Sea’, in D. Rothwell, A. Oude Elferink, K. N. Scott and T. Stephens (eds.), The Oxford Handbook of the Law of the Sea (Oxford University Press, 2015) (hereinafter Oxford Handbook), pp. 7–8.

103

Draft prepared by the Association de Droit International du Japan in conjunction with the Japanese branch of the International Law Association (1929) 23 AJIL Supplement , p. 376.

104

‘Projet de règlement relatif à la mer territoriale en temps de paix ’ (1928) 34 Annuaire de l’Institut de Droit

International, pp. 755 –759. 105 106 107

The Draft of Convention on Territorial Waters (1929) 23 AJIL Supplement , pp. 241–380.

fi cation of International Law (1930) 24 AJIL, pp. 447 466. fi cation of International Law Held

M. O. Hudson, ‘The First Conference for the Codi

’

–

For the list of the participating governments, see ‘Conference for the Codi

at The Hague in March-April, 1930: Final Act ’ (1930) 24 AJIL Supplement, p. 169. Documents in the Conference were reproduced in S. Rosenne (ed.), League of Nations Conference for the Codi International Law 1930, 4 vols. (New York, Oceana, 1975).

fication of

27

The Law of the Sea in Perspective territorial waters.

108

With regard to territorial waters, two issues, among various issues

discussed at the Conference, are of particular interest: the nature of the rights possessed by a State over its territorial sea, and the breadth of the territorial sea. With respect to the nature of the rights of the coastal State to the territorial sea, a clear majority of States, though not unanimously, supported the principle that the coastal State possessed territorial sovereignty over its territorial sea, the airspace above as well as the seabed and subsoil covered by these waters. Thus the Report adopted by the Second Committee at the Hague Conference stated that ‘ it was recognized that international law attributes to each coastal State sovereignty over a belt of sea round its coasts’ .

109

At the

same time, the right of innocent passage of foreign ships through the territorial sea was 110

generally recognised because of the importance of the freedom of navigation.

On the other hand, the breadth of the territorial sea was the most debatable issue regarding the law of the sea. Although no detailed historical examination can be made here, two different practices should be highlighted. The

111

first practice relates to the cannon-shot rule. According to the rule, the seaward limit

of the territorial sea is determined by the range of cannon shot from the shore. It has been considered that the cannon-shot rule was accepted as a well-established rule in France, most countries in the Mediterranean and probably in the Netherlands as regards neutrality in wartime.

112

According to the cannon-shot rule, the breadth of the territorial sea is

changeable with the development of the range of the cannon shot. The second practice is the one employed by Scandinavian countries, whereby the limit of the territorial sea is

fixed

by a distance from the coast. By the middle of the eighteenth

century, Denmark and Sweden had advanced a maritime belt extending to 4 miles’ distance from the shore. While the relationship between the cannon-shot rule and the 3-mile rule seems to remain obscure, some States strongly advocated the three-mile rule as the maximum limit of the territorial sea. In 1793, the United States

first adopted the 3-mile limit as equivalent to the

cannon-shot rule for purposes of neutrality on the outbreak of war between Great Britain and France. As typically shown in the

Anna case of 1805, the 3-mile rule was also

recognised in Great Britain. The adoption of the 3-mile rule by Great Britain was of

108

After a discussion, the term ‘territorial sea ’ was adopted to describe the coastal maritime belt. Draft Report, Circulated to the Members of the Committee on April 3rd, 1930 (Work of the First Sub-Committee). Ibid., vol. 2, p. 1404. It was only after the 1930 Hague Codi

fication Conference that the term

‘territorial sea’ was

uniformly used. Dissenting Opinion of Judge Oda in Case Concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), ICJ Reports 1992, p. 741. 109

League of Nations, C.351(b). M. 145(b). Annex V, Report Adopted by the Committee on April 10th 1930, reproduced in Rosenne, League of Nations (vol. 4), p. 1411.

110 111 112

Rosenne, League of Nations (vol. 4), p. 1412. W. L. Walker, ‘Territorial Waters: The Cannon Shot Rule’ (1945) 22 BYIL, pp. 210 et seq. The role of Bynkershoek was often highlighted in the formation of the cannon-shot rule. According to Walker, however, the cannon-shot rule was already established and well known before the time of Bynkershoek. Thus, Walker has argued that Bynkershoek did not invent the cannon-shot rule, although he was the earliest writer to record the rule. Ibid., p. 230. See also Gidel, Le droit international public de la mer , vol. 3, pp. 36–39.

28

International Law Governing Jurisdictional Zones particular importance due to its considerable naval power. Nonetheless, it would be incorrect to conclude that the 3-mile rule had become a universally accepted rule. In fact, the Scandinavian countries continued to claim a 4-mile limit. Several countries, such as France and Italy, maintained different limits for different purposes. The 1930 Hague Codi

113

fication Conference brought to the surface doubts about the legal

status of the 3-mile rule.

114

While the majority States, including Great Britain and the

United States, claimed that the breadth of the territorial sea belt was 3 miles, other States suggested various breadths beyond 3 miles, such as 4, 6 or 18 miles. France and Italy 115

maintained different limits for different purposes.

The challenge by those States under-

mined the authority of the traditional 3-mile rule, which favoured the interests of strong maritime States. The positions of States were further complicated by the creation of the contiguous zone.

116

The possible creation of an ‘ adjacent’ zone or a contiguous zone in marine area

beyond the territorial sea purported to achieve a compromise by accepting a narrow territorial sea and a contiguous zone for protecting coastal State interests in areas beyond the territorial sea.

117

According to this bi-zonal approach, the coastal State would exercise

territorial sovereignty over the territorial sea close to its coast, and then exercise limited jurisdiction

over

areas

adjacent

to

its

territorial

sea.

Nonetheless,

this

approach

unacceptable to some of the key maritime States, such as Great Britain and Japan.

was

118

In light of the wide cleavage of opinion between States, no rule was formulated with regard to the breadth of the territorial sea, and the Hague Conference ended without the adoption of a convention on the territorial sea. However, this does not mean that the Conference was without signi

ficance.

Indeed, the Hague Conference produced valuable

statements on important issues regarding the law of the sea. As noted, it must be remembered that the principle of freedom of navigation, territorial sovereignty over the territorial sea and the right of innocent passage through the territorial sea were generally recognised at the Conference.

5.2 The First UN Conference on the Law of the Sea (1958) Control of offshore natural resources emerged as a central issue as regards the law of the sea after World War II. In particular, the increasing demand for petrol prompted coastal States to extend their jurisdiction over natural resources on the continental shelf. At the same

113 114

Churchill and Lowe, Law of the Sea, p. 78; O ’Connell, International Law of the Sea, vol. 1, p. 165. Ibid. For an analysis in some detail of the Hague Conference, see J. S. Reeves, ‘The Codi

fication of the Law of

Territorial Waters ’ (1930) 24 AJIL, pp. 486–499. 115

Rosenne, League of Nations (vol. 4), pp. 240–251. See also L. Juda, International Law and Ocean Use Management: The Evolution of Ocean Governance (London and New York, Routledge, 1996), p. 62; Reeves, ‘The Codi

116 118

fication , p. 492. ’

Ibid., pp. 492– 493.

117

Rosenne, League of Nations (vol. 2), p. 252.

See for instance, Minutes of the Second Committee, Second Meeting (18 March 1930), Rosenne, League of Nations (vol. 4), pp. 1223–1224; Thirteenth Meeting (3 April 1930), ibid., p. 1328. See also Juda, International Law and Ocean Use Management, pp. 62–63.

29

The Law of the Sea in Perspective time, in response to the depletion of marine living resources, claims on these resources on the high seas were increasingly advocated by the coastal States. In this context, on 28 September 1945, United States President Truman issued his Proclamations on the Continental Shelf and on Fisheries, respectively.

119

The Truman Proclamations marked

the starting point of the new development of the law of the sea.

fication of the law of the

Against that background, the ILC came to wrestle with the codi

sea. The ILC, established by the UN General Assembly in 1947, aims to promote the

fication. This body commenced its work on the codi fication of the law of the sea at its first session in 1949, and J. P. A. 120

progressive development of international law and its codi

François was appointed as the special rapporteur on the regime of the high seas. In its eighth session in 1956, the ILC submitted its

final report on

‘ Articles Concerning the Law of

the Sea’ to the UN. This report provided the basis for the work at the First UN Conference on the Law of the Sea (UNCLOS I). UNCLOS I was convened in Geneva on 24 February 1958, and eighty-six States participated. UNCLOS I successfully adopted four conventions and an optional protocol on dispute settlement:

(i) The Convention on the Territorial Sea and the Contiguous Zone,

121

122

(ii) The Convention on the High Seas,

(iii) The Convention on Fishing and Conservation of the Living Resources of the High Seas,

123

(iv) The Convention on the Continental Shelf,

124

and

(v) The Optional Protocol of Signature Concerning the Compulsory Settlement of Disputes.

125

In addition, UNCLOS I adopted nine resolutions concerning nuclear tests on the high seas, pollution of the high seas by radioactive materials,

fishery

conservation, cooperation in

conservation measures, human killing of marine life, coastal

fisheries,

historic waters,

convening of a Second UN Conference on the Law of the Sea, and a tribute to the ILC.

126

A remarkable result of this Conference was that the traditional dualism in the oceans was established in the Geneva Conventions as lex scripta. Article 1 of the Convention on the High Seas stipulates:

119

The full titles are: Proclamation by President Truman of 28 September 1945 on Policy of the United States with respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf, Proclamation by President Truman of 28 September 1945 on Policy of the United States with respect to Coastal Fisheries in Certain Areas of the High Seas.

120

Article 1(1) of the Statute of the International Law Commission.

121

516 UNTS, p. 205. Entered into force 10 September 1964.

122

450 UNTS, p. 11. Entered into force 30 September 1962.

123 124 125 126

559 UNTS, p. 285. Entered into force 20 March 1966. 499 UNTS, p. 311. Entered into force 10 June 1964. 450 UNTS, p. 169. Entered into force 30 September 1962. DOCUMENT A/CONF.13/L.56. UN Conference on the Law of the Sea, Of

–

Meetings (Geneva, 24 February 27 April 1958) , pp. 143–145.

ficial Records, Vol. II: Plenary

30 International Law Governing Jurisdictional Zones

The term ‘high seas’ means all parts of the sea that are not included in the territorial sea or in the internal waters of a State.

It follows that the 1958 Geneva Conventions divided the ocean into three basic categories: internal waters, territorial sea and high seas. Internal waters and the territorial sea are subject to the territorial sovereignty of the coastal States. This was clearly con

firmed

in

Article 1 of the Geneva Convention on the Territorial Sea and the Contiguous Zone (hereinafter the TSC):

The sovereignty of a State extends, beyond its land territory and its internal waters, to a belt of sea adjacent to its coast, described as the territorial sea.

At the same time, the freedom of the high seas, including that of

fishing in the high seas,

was explicitly laid down in Article 2(2) of the Geneva Convention on the High Seas. In light of

its

Preamble,

this

provision

can

be

considered

as

a

codi

fication

of

customary

international law. Furthermore, the legal institution of the continental shelf was embodied in the Convention on the Continental Shelf. Under Article 1(1) of the Convention, the continental shelf is ‘ the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of

the territorial sea, to a depth of 200 metres or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas ’ . The rights of the coastal State over the continental shelf do not affect the legal status of the superjacent waters as high seas, or that of the airspace above those waters by virtue of Article 3. Accordingly, the continental shelf in the legal sense is part of the seabed and subsoil of the high seas. It should also be noted that the contiguous zone, which may not extend beyond 12 miles from the baseline, was provided in the TSC. As appears from Article 24(1) of the TSC, ‘ [i]n the zone of the high seas contiguous to its territorial sea ’, the contiguous zone is part of the high seas. Despite the valuable contributions at UNCLOS I, two key issues were left open. One issue concerns the maximum breadth of the territorial sea. As the territorial sea is under the territorial sovereignty of the coastal State, that State can monopolise natural resources there. In light of the increasing demand for marine resources, it was only natural that the breadth of the territorial sea became a serious issue at UNCLOS I. In this regard, all the countries of the Soviet and Arab blocs and most Asian, African and Latin American States favoured the 12-mile limit of the territorial sea, while many maritime States claimed that the 3-mile rule was the only rule under international law.

127

S. Oda,

127

In the end, the ILC had to

International Control of Sea Resources (Dordrecht, Nijhoff, 1989), p. 99.

31

The Law of the Sea in Perspective recognise that international practice was not uniform as regards the traditional limitation of the territorial sea to 3 miles. As a consequence, no rule was adopted with respect to the breadth of the territorial sea. However, attention should be drawn to Article 24(2) of the TSC, which provides:

The contiguous zone may not extend beyond twelve miles from the baseline from which the breadth of the territorial sea is measured.

Given that the contiguous zone lies outside the territorial sea, this provision would seem to signify that the breadth of the territorial sea could not exceed the maximum limit of 12 nautical miles under the TSC. The ILC took the view that international law did not justify an extension of the territorial sea beyond 12 miles,

128

even though the ILC had taken

no decision as to the breadth of the territorial sea up to the limit of 12 miles. The second issue relates to a mechanism for peaceful settlement of international disputes. It is impossible, or at least very dif

ficult, to formulate perfectly clear and detailed

rules that do not give rise to disputes as to their interpretation and application. Hence, effective mechanisms for dispute settlement constitute an essential part of a treaty. At UNCLOS I, however, a compulsory mechanism of dispute settlement could be established only as a separate instrument owing to opposition by many States to the mechanism of settlement either by the ICJ or through arbitration. To date, only thirty-eight States have become parties to the Optional Protocol of Signature Concerning the Compulsory Settlement of Disputes.

5.3 The Second UN Conference on the Law of the Sea (1960) On 17 March 1960, the Second UN Conference on the Law of the Sea (UNCLOS II) was convened in Geneva in order to discuss the outer limit of the territorial sea as well as the

fishery

zone. Eighty-eight States participated in the Conference. In order to break

the deadlock on this subject, the United States and Canada put forward a joint proposal which provided for a 6-mile territorial sea plus a maximum of 6-mile exclusive zone (EFZ), and for a ten-year moratorium 6 miles.

129

period for historic

fishing

Nonetheless, the joint proposal was defeated by a single vote.

the efforts to

fix

130

fishery

in the outer Consequently,

the maximum breadth of the territorial sea at UNCLOS II proved once

again in vain.

128 129

United Nations, (1956-II) YILC , p. 265. DOCUMENT A/CONF.19/C. 1/L.10. Second UN Conference on the Law of the Sea, Of

ficial Records, Summary –

Records of Plenary Meetings and of Meetings of the Committee of the Whole (Geneva, 17 March 26 April 1960) , p. 169. 130

The vote on the proposal ran 54:28:5. Ibid., p. 30. See also Oda, International Control, p. 104; Juda,

International Law and Ocean Use Management, p. 161.

32

International Law Governing Jurisdictional Zones

–

5.4 The Third UN Conference on the Law of the Sea (1973 1982) (a) General Considerations The legal framework established by the 1958 Geneva Conventions very soon came to encounter serious challenges. Several factors led to review of the Geneva Conventions, but four in particular merit highlighting. The

fi

rst factor involves control of offshore natural resources. Growing demand for an

augmented supply of marine natural resources led the coastal States to extend national jurisdiction towards the high seas. At that time, some twenty coastal States had already claimed

exclusive

fi

sheries

jurisdiction

beyond

12

nautical

miles.

131

It

was

becoming

apparent that the traditional dualism between the narrow territorial sea and the vast high seas was in need of serious reconsideration. The second factor concerns the development of seabed mining technology. The technological advances made it possible to exploit the immense resources in the seabed. It seemed probable that the development of technology would encourage coastal States to extend their legal continental shelf towards the deep seabed on the basis of the exploitability test set out in Article 1 of the Convention on the Continental Shelf. Thus, a concern was voiced that eventually all seabed in the world would be divided among coastal States. While possible mining of manganese nodules in the deep seabed had attracted growing attention, only developed States possessing the necessary technology as well as

fi

nancial resources

could exploit natural resources in the deep seabed. However, this situation was unacceptable to developing States. Thus, there was a need to formulate a new legal framework for the proper management of natural resources in the deep seabed. The

third

factor

relates

to

the

protection

of

the

marine

environment.

Marine

environmental protection had attracted little attention at UNCLOS I and II. Nonetheless, the attitude of the international community came to change as a result of a series of oil tanker incidents. In particular, the

Torrey Canyon incident of 1967 had a profound impact

on the development of treaties regulating vessel-source pollution. In light of the paucity of rules regulating marine pollution in the 1958 Geneva Conventions, it was necessary to develop new rules at the global level. Finally, but not least, attention must be drawn to the structural changes of the international community due to the independence of former colonised regions in the 1960s. As many developing States had not gained independence at the time of UNCLOS I and II, the claims

of

these

States

had

little

impact

on

the

1958

Geneva

Conventions.

For

newly

independent States, the existing rules of the law of the sea served only the interests of developed States. It was only natural that newly independent States called for reassessment of the existing rules of the law of the sea as a whole. Against that background, on 17 August 1967 the Maltese ambassador, Arvid Pardo, tabled a proposal for a Declaration governing the seabed and its natural resources beyond

131

Memorial submitted by the United Kingdom in the para. 245.

Fisheries Jurisdiction case, 31 July 1973, vol. 1, p. 353,

33

The Law of the Sea in Perspective the limits of national jurisdiction.

132

In response to his proposal, UN General Assembly

Resolution 2340 (XXII) of 18 December 1967 decided to establish the Ad Hoc Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction (the Seabed Committee), consisting of thirty-

five

flect

members chosen to re

equitable geographical representation. By UN General Assembly Resolution 2467A (XXIII) of 21 December 1968, this Committee was replaced by the permanent Committee on the Peaceful Uses of the Sea-Bed and Ocean Floor beyond the Limits of National Jurisdiction. The Committee was composed of forty-two Member States. Nonetheless, it became apparent that discussions would not be limited to mineral resources in the deep seabed. Eventually it was acknowledged that there was a great need to review the existing rules of the law of the sea as a whole because marine issues were closely interrelated. Thus, on 17 December 1970, UN General Assembly Resolution 2750C (XXV) decided to convene a conference in 1973 in order to adopt a comprehensive convention on the law of the sea. The

first session of UNCLOS III was held in New York on 3

– 15 December 1973, and a

total of eleven sessions were convened from 1973 to 1982. Unlike at UNCLOS I and II, the preparatory work was not assigned to the ILC. The primary reason was that in light of the political sensitivity of issues underlying UNCLOS III, the ILC was regarded as inappropriate to deal with these questions. Developing States were also concerned that they were underrepresented approach.

133

in

the

ILC

and

that

the

Commission

was

too

conservative

in

its

Accordingly, the work of the Conference was mainly conducted in three

committees. The First Committee dealt with the legal regime for the deep seabed beyond the limit of national jurisdiction. The Second Committee was charged with the territorial sea, the contiguous zone, the EEZ, the continental shelf, international straits, archipelagic waters, the high seas, and land-locked and geographically disadvantaged States. The Third Com-

fic research and

mittee dealt with the protection of the marine environment, marine scienti the transfer of technology. Certain issues – such as the Preamble,

final

clauses, peaceful

uses of ocean space, the general principles on dispute settlement, the general provisions and 134

the Final Act – were discussed directly by the Plenary.

(b) Features of UNCLOS III UNCLOS III was characterised by three principal features. The

first

feature is the universality of the participants. The UNCLOS III participants

comprised: the members of the UN, its specialised agencies and the International Atomic

132

Note Verbale

of 17 August 1967 from Malta to UN Secretary-General, A/6695, 18 August 1967. Reproduced

in E. D. Brown, 133

The International Law of the Sea

, vol. 2 (Aldershot, Dartmouth, 1994), p. 333.

This does not mean, however, that the role of international lawyers was minor in UNCLOS III. Most of the delegations in UNCLOS III were international lawyers, and they played a key role in formulating acceptable draft rules. A. Shibata, ‘International Law-Making Process in the United Nations: Comparative Analysis of UNCED and UNCLOS III ’ (1993) 24

134

California Western International Law Journal

, pp. 33–35.

J. Evensen, ‘Working Methods and Procedures in the Third United Nations Conference on the Law of the Sea ’ (1986) 199

RCADI

, p. 454.

34 International Law Governing Jurisdictional Zones Energy Agency, parties to the Statute of the International Court of Justice, as well as Guinea-Bissau and the Democratic Republic of Vietnam. In addition, the participants in UNCLOS III included a wide range of observers, such as intergovernmental and nongovernmental organisations, trust territories, associated States, the UN Council for Namibia, and national liberation movements recognised in their region by the Organisation of African Unity or the League of Arab States. It could well be said that UNCLOS III was truly universal.

135

This is an important element securing

the legitimacy

of the process of

international law-making. The second feature concerns the long duration of the Conference. In fact, it took ten years – from 1973 to 1982 – to complete the work. Taking into account the preparatory work of the Seabed Committee, which commenced its work in 1967, it took nearly sixteen years to adopt the LOSC. The third feature is the enormous task with which the Conference was charged. The task of UNCLOS III was quantitatively enormous because it had to deal with various marine issues in a comprehensive manner. In this regard, UN General Assembly Resolution 3067 (XXVIII) of 16 November 1973 made it clear that ‘ the mandate of the Conference shall be to adopt a convention dealing with all matters relating to the law of the sea’.

136

At the

same time, the task of the Conference was qualitatively enormous in the sense that it had

to

formulate

a

number

of

provisions

reconciling

highly

complicated

interests

between States.

(c) Procedures of UNCLOS III In light of the complexity of its tasks, UNCLOS III adopted some unique and particular procedures for negotiations. Five procedural techniques should be highlighted. The

first

remarkable feature of UNCLOS III involves the consensus procedure. The

consensus procedure means the method of obtaining the general agreement of all relevant actors in a conference or an organ through negotiations without vote.

137

In light of the

economic, political and social differences in the contemporary international community, the majority voting system could run the risk of producing powerful alienated minorities. It seems probable that those minorities would not feel bound by the decisions involved. Thus, in multinational negotiations, there is a need to ensure broad support for decisions despite various divisions between States. The consensus procedure seeks to make every effort to reach agreement with regard to politically sensitive issues. At UNCLOS III, the consensus procedure was indirectly mentioned in the ‘Gentlemen’ s Agreement ’ of the Conference as follows:

135

Participants at the sessions of the Conference were listed in the Final Act of the Third UN Conference on the Law of the Sea.

136 137

Paragraph 3 of the operative part. The consensus procedure must be distinguished from unanimity. While adoption with unanimity means adoption by voting after all actors involved have agreed, the consensus procedure precludes voting.

35

The Law of the Sea in Perspective

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.

138

The Rules of Procedure for UNCLOS III made no explicit reference to the consensus procedure. However, paragraph 1 of Rule 37 stated: ‘ Before a matter of substance is put to the vote, a determination that all efforts at reaching general agreement have been exhausted shall be made’ by the two-thirds majority speci

fied in Rule 39(1).

On the one hand, consensus is a valuable procedure in order to secure the widest possible acceptance of a convention. On the other hand, a text adopted by consensus is likely to be obscure because of the need for compromise. Furthermore, the consensus procedure is inherently slow-moving. There is also a concern that consensus may mask opposition and create subsequent opposition or non-participation. In addition, it may be noted that a successful consensus procedure relies on the personal ability of the chairperson because the chairperson is required to take on effective leadership for formulating a consensus by facilitating compromises and, if necessary, generating proposals. The second procedural technique used at UNCLOS III is the ‘ package-deal’ approach. This is a comprehensive approach by which all key issues are addressed, with reasonable give and take between interested parties and interested groups. Under the packagedeal approach, the thus

arguable

that

final this

treaty is to be accepted in its entirety. On the one hand, it is approach

contributed

to

the

adoption

of

a

comprehensive

convention, i.e. the LOSC. On the other hand, it is undeniable that the package-deal approach has complicated the decision-making process at UNCLOS III owing to tradeoff tactics by certain States. Furthermore, the pace of the Committees II and III was quali

fied

by the slow progress of Committee I. Arguably, the package-deal approach

seems best suited to a conference where the work among committees will progress at roughly the same pace. If this is not the case, the approach may entail slow progress in negotiations. The third notable feature is that discussions took place in a wide variety of delegation groups with common interests. One may call this the group approach. The Conference realised at an early stage that working groups would be more ef

ficient

than plenary

meetings owing to the large number of participants and sensitive issues involved. Consequently, negotiations were to a large extent carried out in smaller working or negotiating groups on the basis of interest in a particular issue. Examples include: the group of seventyseven consisting of developing countries, the coastal States group, the group of archipelagic States, the Oceania group, and the land-locked and geographically disadvantaged States group, the territorialist group, the group of broad-shelf States, the straits States group and

138

Declaration Incorporating the Gentlemen ’s Agreement made by the President and Endorsed by the Conference at its 19th Meeting on 27 June 1974. Reproduced in (1974) 13 ILM , p. 1209.

36 International Law Governing Jurisdictional Zones the group of maritime States.

139

fluence of the group of seventy-seven

In particular, the in

seemed to be strong, especially in the First Committee as well as in the Second Committee relating particularly to the EEZ. This situation contrasted with UNCLOS I and II where the participation of developing States was limited. Fourth, at UNCLOS III, most substantive meetings were informal and without summary records. As a consequence, there is little in the way of formal records of debates and amendments by delegations at UNCLOS III. Some of the most intractable issues of the Conference were resolved in privately convened negotiating groups, such as the Evensen group and the Castañeda group.

140

It could be said that unof

ficial

negotiations or infor-

mality was one of the unique features of UNCLOS III. Finally, the single text approach should be noted. It has been considered that the only way for the Conference to extricate itself from the proliferation of individual proposals was to formulate a Single Negotiating Treaty Text as the basis for discussion. Therefore, the President of the Conference recommended that the Chairmen of the three Committees should each prepare a single negotiating text concerning the subjects entrusted to their Committee.

141

Arguably, this was an important procedural innovation.

(d) Adoption of the LOSC After several revisions of the Texts, the Draft Convention on the Law of the Sea was adopted at the resumed tenth session on 28 August 1981. At the eleventh session, a number of changes and amendments were made to the

final

text of the Convention in order to

accommodate the concerns of the United States. Nevertheless, the United States did not support the adoption of the Convention by consensus or without a vote, requesting a recorded vote.

142

final stage finally adopted on 30 April 1982 by 130 in favour, 4 against,

Consequently, the consensus procedure was abandoned in the

of UNCLOS III. The LOSC was

with 18 abstentions and 18 unrecorded. 10 December 1982.

143

The Convention was opened for signature on

144

The voting record demonstrated that practically all developing countries voted for the Convention. Moreover, Australia, Austria, Canada, France, Greece, Ireland, Japan, Portugal,

139

Concerning various groups, see, in particular, T. B. Koh and S. Jayakumar, ‘The Negotiating Process of the Third United Nations Conference on the Law of the Sea ’, in Virginia Commentary , vol. 1, pp. 68–86.

140

T. B. Koh, ‘A Constitution for the Oceans’, in United Nations, The Law of the Sea: United Nations Convention

on the Law of the Sea with Index and Final Act of the Third United Nations Conference on the Law of the Sea (New York, United Nations, 1983), p. xxxvi. 141 142

UNCLOS III, Of

ficial Records, vol. 4, p. 26, para. 92. See also, Evensen, ‘Working Methods’, pp. 462–479.

The USA changed its position after the victory by President Reagan in the 1980 presidential election. The new administration decided to re-evaluate the results of UNCLOS III as a whole: ibid ., pp. 479–482.

143

For the distribution of the votes, see B. H. Oxman, ‘The Third United Nations Conference on the Law of the Sea ’, in Dupuy and Vignes, A Handbook, p. 243. Some documents recorded that seventeen States abstained. However, it would seem that an abstention by Liberia, which was initially unrecorded, was not counted in the abstention number. By including Liberia ’s abstention, that number should be eighteen.

144

The Convention remained open for signature until 9 December 1984 at the Ministry of Foreign Affairs of Jamaica, and also from 1 July 1983 until 9 December 1984 at the UN Headquarters in New York pursuant to Article 305(2) of the LOSC.

37

The Law of the Sea in Perspective Switzerland and the

five Nordic States voted for the Convention. On the other hand, four

States, that is to say, the United States, Israel, Turkey and Venezuela, voted against the Convention. Israel objected to observer status for the Palestine Liberation Organization (PLO). Turkey and Venezuela preferred to resolve maritime boundary disputes with their neighbours before accepting the Convention. The United States voted against the LOSC mainly because the deep seabed regime provided for in Part XI did not meet US objectives. For a similar reason, many Western European countries abstained. Eastern European countries abstained because they were miffed by a technical provision in the Conference resolution on protection of preparatory investments in seabed mining. They felt that this discriminated in favour of US companies.

145

In any case, it is clear that the adoption of the

LOSC marked the beginning of a new era in the international law of the sea.

6 OUTLINE OF THE UN CONVENTION ON THE LAW OF THE SEA

6.1 General Considerations

Under Article 308(1) of the LOSC, it ‘shall enter into force 12 months after the date of deposit of the sixtieth instrument of rati

fication or accession . On 16 November 1993, fication with the UN Secretary-General ’

Guyana deposited the sixtieth instrument of rati

and, consequently, the LOSC entered into force on 16 November 1994.

146

The original texts of the LOSC are Arabic, Chinese, English, French, Russian and Spanish, and they are equally authentic under Article 320. This Convention is open for signature by both States and other entities under Article 303(1). Those entities comprise:

(i) Namibia, represented by the UN Council for Namibia, (ii) all self-governing associated States which have chosen that status in an act of selfdetermination supervised and approved by the UN in accordance with General Assembly Resolution 1514 (XV),

147

(iii) all self-governing associated States which have competence over the matters governed by this Convention, (iv) all territories which enjoy full internal self-government, recognised as such by the UN, but have not attained full independence in accordance with General Assembly Resolution 1514 (XV), and (v) international organisations, in accordance with Annex IX.

145

Oxman, ‘The Third United Nations Conference ’, pp. 243–244. See also President ’s Statement, 9 July 1982, (1982) 82

146

Department of State Bulletin

Oxford Handbook Traité

and Thouvenin (eds.),

148

, No. 2065, p. 71.

For an overview of the LOSC, see also R. Churchill, ‘The 1982 United Nations Convention on the Law of the Sea ’, in

147

148

, pp. 24– 45; A. de Marffy-Mantuano, ‘La Convention de Montego Bay’ in Forteau , pp. 54– 68 (in particular, pp. 58–65).

For an analysis in some detail of associated States, see M. Igarashi,

Law

Associated Statehood in International

(The Hague, Kluwer, 2002).

To date, the EEC (now EU) is the only international organisation which has signed the LOSC. The EU rati the Convention in 1998.

fied

38

International Law Governing Jurisdictional Zones As of 2018, some 168 States had become parties to the LOSC.

149

Article 311 contains rules with regard to the relationship between the LOSC and other treaties. Under Article 311(1), the LOSC is to prevail, between States Parties, over the 1958 Geneva Conventions. Furthermore, under Article 311(6), there shall be no amendments to the basic principles relating to the common heritage of mankind set forth in Article 136, and States Parties shall not be party to any agreement in derogation thereof. On the other hand, under Article 311(2), the Convention shall not alter the rights and obligations of States Parties which arise from other agreements compatible with this Convention and which do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under the LOSC. Two or more States Parties may conclude agreements modifying or suspending the operation of provisions of the LOSC, provided that such agreements do not relate to a derogation which is incompatible with the effective execution of the object and purpose of the Convention. Moreover, such agreements shall not affect the application of the basic principles embodied therein, and the provisions of such agreements should not affect the enjoyment by other States Parties of their rights or the performance of their obligations under the Convention pursuant to Article 311(3). States Parties intending to conclude such an agreement are required to notify other States Parties through the depositary of the Convention of their intention to conclude the agreement and of the modi

fication or suspension for which it provides by

virtue of Article 311(4).

6.2 Principal Features of the Convention

Arguably, the LOSC is characterised by four principal features. First, the LOSC, which comprises 320 Articles and 9 Annexes, seeks to cover marine issues comprehensively. In light of its comprehensiveness, the LOSC is often called ‘a constitution for the oceans ’. Apart from Annexes, the Convention is divided into seventeen parts. The

first eleven parts

provide legal regimes governing each marine space. In this respect, the LOSC divides the ocean into

five categories: internal waters, territorial seas, archipelagic waters, the EEZ and

the high seas under Article 86. Furthermore, the LOSC provides for the contiguous zone (Part II, section 4), international straits (Part III), the continental shelf (Part VI) and the Area (Part XI). Consequently, it may be said that the spatial structure of the law of the sea was transformed from dualism to multilateralism. Parts XII to XV are devoted to speci

fic issues,

that is to say, the protection and preservation of the marine environment (Part XII), marine scienti

fic

research (Part XIII), development and transfer of marine technology (Part XIV)

and settlement of disputes (Part XV). Parts XVI and XVII deal with general and

149

One signi

final

ficant entity in maritime affairs, i.e. Taiwan, does not become a party to the LOSC as it does not

meet any of the criteria set out in Article 305. More recently, however, Taiwan has been able to become a party to a member of various

fisheries treaties that allow fishing entities ‘

’ to become parties. Churchill, ‘The

1982 United Nations Conventions ’, p. 32. Further, see A. Serdy, ‘Bringing Taiwan into the International Fisheries Fold: The Legal Personality of a Fishing Entity’ (2005) 75

BYIL, p. 185; N.-T. A. Hu, Fishing ODIL, p. 149.

Entities: Their Emergence, Evolution, and Practice from Taiwan’s Perspective ’ (2006) 37

‘

39

The Law of the Sea in Perspective provisions, respectively. Re

fl

ecting the package-deal approach, the balance of rights and

duties as well as overall equitableness are essential elements of the Convention. Second, an important innovation of the LOSC is that it

fi

nally resolved the essential

question relating to the breadth of territorial seas. As provided in Article 3 of the LOSC, States had agreed on a maximum seaward limit of the territorial sea of 12 miles. In this respect, it should be noted that the hard issue concerning the breadth of territorial seas could be concluded only by institutionalising a new resource-orientated zone under the coastal State ’s jurisdiction: the 200-mile EEZ. In other words, States could reach agreement with respect to the breadth of the territorial sea only by diverging from the traditional principle of dualism dividing the sea into the territorial sea and the high seas. Consequently, the division of the sea was further promoted under the LOSC, and the sea was divided into

fi

ve

basic

categories:

archipelagic waters.

internal

waters,

the

territorial

sea,

the

EEZ,

the

high

seas

and

150

Third, unlike the 1958 Geneva Conventions, the LOSC has succeeded in establishing compulsory procedures of dispute settlement.

151

Under Article 286, where no settlement has

been reached by means freely chosen by the parties to the dispute, any dispute concerning the interpretation or application of the LOSC must be submitted to the international courts and tribunals having jurisdiction under section 2 of Part XV. This obligation is subject to several exceptions set out in section 3. Despite some limitations, the compulsory procedures entailing binding decisions would seem to have a valuable role in peaceful settlement of international disputes concerning the implementation of the LOSC. Fourth, the LOSC created three new institutions. The International Seabed Authority is an international organisation governing activities in the Area. The ITLOS is the permanent international tribunal for law of the sea disputes. The Commission on the Limits of the Continental Shelf has a principal role to make recommendations with regard to the outer limits

of

the

continental

shelf

beyond

200

nautical

miles.

These

institutions

will

be

discussed in relevant parts of this book. Finally, attention must be drawn to the integrity of the Convention. As the LOSC forms an integral whole consisting of a series of compromises, it is not possible for a State to pick what

it

likes

and

disregard

what

it

does

not.

This

is

a

corollary

of

the

package-deal

approach. Thus Article 309 prohibits reservations, by stating: ‘No reservations or exceptions may

be

made

to

this

Convention

unless

expressly

permitted

by

other

articles

of

this

Convention.’ The prohibition of reservations certainly contributes to secure the integrity of the Convention. On the other hand, Article 310 of the Convention allows States to make declarations or statements with a view, inter alia, to harmonising national laws and regulations with the provisions of the LOSC. In fact, many States made declarations and statements with respect

150

Where the coastal State has claimed its EEZ, the continental shelf is the seabed and subsoil of the EEZ. If not, the continental shelf is part of the seabed and subsoil of the high seas. As will be seen later, international straits under Part III belong to the territorial sea of the coastal State. See Chapter 3, section 4.3 of this book.

151

LOSC, Part XV, section 2. The dispute settlement mechanism in the LOSC will be addressed in Chapter 13.

40

International Law Governing Jurisdictional Zones to the LOSC pursuant to Article 310. Article 310 makes clear that such declarations or statements are not intended to exclude or modify the legal effect of the provisions of the LOSC in their application to that State. In fact, the ICJ in the 2009 Black Sea case gave no 152

effect to Romania ’s declaration to the LOSC.

Further, the Annex VII Arbitral Tribunal, in

the Arctic Sunrise Arbitration, ruled that Russia’ s Declaration must be interpreted with due regard to the relevant provisions of the Convention.

153

ficult to

In practice it is at times dif

make any distinction between a declaration or statement and a reservation prohibited by the Convention. Accordingly, there are growing concerns that some declarations and statements may have the same effect as reservations to the Convention.

7 DEVELOPMENT AFTER UNCLOS III

7.1 General Considerations

The establishment of a rule freezes the passage of time at a certain moment. Consequently, the rule stabilises the legal order. However, a society, national or international, is constantly changing. Accordingly, the antithesis between stability and progress becomes a fundamental issue of law,

154

and the law of the sea is no exception. Hence mechanisms of the

evolution of the LOSC deserve attentive examination. Amendment is an orthodox method of changing relevant provisions of a multilateral treaty. The amendment procedures of the LOSC are set out in Articles 312 – 316. Under Article 312, after the expiry of a period of ten years from the date of entry into force of the Convention, a State

fic amend-

Party may propose, by written communication to the UN Secretary-General, speci

ments to this Convention, other than those relating to activities in the Area. The SecretaryGeneral is to circulate such communication to all States Parties, and if not less than half of the States Parties reply favourably to the request within twelve months, the Secretary-General is to convene the Conference. The Conference should make every effort to reach agreement on any amendments by way of consensus. However adopted, an amendment requires rati

fication or

accession by two-thirds of the States Parties or by sixty States Parties, whichever is greater.

fied

The simpli

155

procedure provided for in Article 313 makes it possible to propose an

amendment to the Convention without convening a conference. Yet such a proposal can be deterred by only one objection. In light of these dif

ficulties, it is not surprising that so far

there has been no attempt to use the amendment procedures. Instead, the LOSC is being developed without referring to the amendment procedures provided for in the Convention. In this regard, three ways of ‘change ’ and ‘ development’ should be highlighted.

152 153

156

ICJ Reports 2009, p. 78, para. 42. The Arctic Sunrise Arbitration (The Netherlands v the Russian Federation), Award on Jurisdiction, 26 November 2014, p. 13, para. 70, available at: https://pca-cpa.org/en/cases/21/.

154

B. N. Cardozo, ‘The Paradoxes of Legal Science ’, reproduced in Selected Writings of Benjamin Nathan

Cardozo: The Choice of Tycho Brahe (New York, Fallon Publications, 1947), pp. 257–258; M. Virally, La pensée juridique (Paris, L.G.D.J., 1960), p. 188. 155 156

LOSC, Article 316(1). See also I. Buga, ‘Between Stability and Change in the Law of the Sea Convention: Subsequent Practice, Treaty Modi

fication, and Regime Interaction , in Oxford Handbook, pp. 46 ’

–68 (in particular, pp. 52

et seq .).

41

The Law of the Sea in Perspective

7.2 Adoption of two Implementation Agreements

Arguably, the most signi agreements. The Convention

first

adopted

ficant changes of the LOSC were made by two

‘ implementation’

is the 1994 Agreement on the Implementation of Part XI of the by

the

UN

1994 Implementation Agreement).

General 157

Assembly

on

28

July

1994

(hereinafter

the

In order to elaborate the regime for the deep seabed

beyond the limits of national jurisdiction, the Preparatory Commission for the International Seabed Authority and for the International Tribunal for the Law of the Sea (PREPCOM) had been established by Resolution I annexed to the Final Act of UNCLOS III. The aim of this Commission

was

to

draft

the

necessary

rules

and

procedures

that

would

enable

the

Authority to commence its functions and to exercise the powers and functions assigned to it by Resolution II relating to preparatory investment.

158

However, major industrialised

States, including the United States, expressed strong opposition to the regime regulating the deep seabed activities, laid down in Part XI of the LOSC, and these States refused to participate in the LOSC. It was apparent that the fundamental disagreements concerning Part XI prevented the universal participation of industrialised States in the Convention. In order to promote universal rati

fication of the Convention, the 1994 Implementation Agreement was adopted fied the

by the UN General Assembly. As we shall discuss later, this agreement has modi effect of Part XI of the LOSC.

159

The adoption of the new agreement facilitated the

fication of the LOSC by industrialised States, and major developed States including Germany, Japan, France, Italy, the Netherlands and the United Kingdom ratified the LOSC rati

–

–

in the wake of the 1994 Implementation Agreement. The second agreement is the 1995 Fish Stocks Agreement.

160

This Agreement seeks to

elaborate provisions concerning the conservation and management of for in Parts V and VII of the

fish stocks provided

LOSC.

7.3 De facto Amendment of the LOSC Through Meetings of States Parties

The LOSC, as well as the law of the sea in general, is also developed through international forums. An important forum for this purpose is the Meeting of States Parties (SPLOS). The SPLOS is a forum for the speci the members of the ITLOS,

161

fic tasks attributed to it by the LOSC, namely the election of

determination of the salaries, allowances and compensations

as well as retirement pensions of the members and of the Registrar of the Tribunal, decision of the terms and manner concerning the expenses of the Tribunal,

157 159 160

1836

UNTS, p. 42. Entered into force 28 July 1996.

158

163

162

and the

Paragraph 5 of Resolution I.

See Chapter 5, section 3.7 of this book. 2167

UNTS, p. 3. Entered into force 11 December 2001. The full title is United Nations Agreement for the

Implementation of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks. 161

Annex VI, Article 4(4).

162

Annex VI, Article 18(5 –7).

163

Annex VI, Article 19(1).

42 International Law Governing Jurisdictional Zones election of the members of the Commission on the Limits of the Continental Shelf (CLCS).

164

The SPLOS also has a valuable role to play as a forum for information. In fact, ITLOS submits its Annual Reports to the SPLOS. In practice, the Secretary-General of the Authority and the Chairman of the CLCS also make statements concerning their activities during 165

the year at the SPLOS.

fi ed first election of the members of ITLOS. Under Article 4(3) of Annex VI of the LOSC, the first election of ITLOS was to be Notably, several provisions of the LOSC seemed to have been, de facto, modi

through the SPLOS. One amendment concerned the

held within six months of the date of entry into force of the Convention. It followed that the last date set up by this provision was 16 May 1995. In 1994, however, only sixty-three States had rati

fied

the Convention, and most of the parties were developing States. In

light of the situation, it appeared dif

ficult

to hold the election in accordance with the

relevant provisions of the Convention, in particular Articles 2 and 3 of Annex VI, which require to ensure ‘the representation of the principal legal systems of the world and equitable geographical distribution ’ and ‘no fewer than three members from each geographical group as established by the General Assembly of the United Nations ’. Accordingly, the

first

1 August 1996.

SPLOS decided to postpone the 166

first

election of ITLOS from that date to

In 1996, it was agreed by consensus that all of the seats of ITLOS would

be allocated between the

five

geographical regions of the UN. The decision has been

applied in subsequent elections to the Tribunal, although there is no explicit legal basis in the Convention.

167

In 2009, a new allocation of seats was agreed by consensus of the

States Parties in light of the growth of States Parties from the African and Asian Group of States.

168

Later, two further ‘ amendments’ were made with regard to the outer limits of the continental shelf beyond 200 nautical miles. The

first amendment concerned the election of the

members of the CLCS. Under Article 2(2) of Annex II to the Convention, the initial election was to be held within eighteen months after the date of entry into force of the Convention, namely before 16 May 1996. While the State Party nominating a member of the Commission shall defray the expenses of that member, developing States were reluctant to defray the expenses at that stage. Furthermore, developed States also expressed their concern that they could not nominate an adequate number of experts to the Commission because of the paucity

fication of the Convention by developed States. Thus, the SPLOS decided to postpone by a year the date of the first election of the CLCS till March 1997. In 1997, the Meeting of of rati

169

164 165

Annex II, Article 2(3). T. Treves, ‘The General Assembly and the Meeting of States Parties in the Implementation of the LOS Convention’, in A. G. Oude Elferink, Stability and Change in the Law of the Sea: The Role of the LOS

Convention (Leiden and Boston, Brill/Nijhoff, 2005), p. 69. 166

UN Convention on the Law of the Sea, Meeting of States Parties, SPLOS/3, 28 February 1995, p. 7, para. 16(a).

167

SPLOS/14. See also J. Harrison, Making the Law of the Sea: A Study in the Development of International Law (Cambridge University Press, 2011), pp. 76– 77.

168 169

SPLOS/201, 26 June 2009, para. 1. See also Harrison, Making the Law of the Sea, p. 77. SPLOS/5, 22 February 1996, p. 7, para. 20.

43

The Law of the Sea in Perspective the

Parties

adopted

a

decision

respecting

allocation

of

seats

on

the

CLCS

to

particular geographical regions. The composition of the Commission agreed by the States Parties in its decision deviated, albeit temporarily, from the requirements of Annex II of the LOSC.

170

In addition, the time limit of ten years provided for in Article 4 of Annex II to the LOSC was also extended. According to this provision, a coastal State intending to establish the outer limits of its continental shelf beyond 200 nautical miles is required to submit particulars of such limits to the CLCS along with supporting data within ten years of the entry into force of the Convention for that State. Yet concerns had been voiced by developing States that many countries would have dif limit because of the lack of

financial

ficulties

complying with the time

and technical resources. The Meeting of the States

Parties had expressed general support for the concerns raised and decided that the time limit of ten years should be taken as having commenced on 13 May 1999 for States for which the 171

Convention had entered into force before that date.

However, some coastal States, in

particular developing countries, continue to face particular challenges in submitting information to the CLCS within the new time frame. Accordingly, SPLOS further decided that the ten-year time period referred to in Article 4 of Annex II to the LOSC may be satis

fied by

submitting ‘preliminary information ’ including a description of the status of preparation and intended date of making a submission.

172

It is true that the decisions of SPLOS are not

formal amendments. Even so, there appears to be scope for considering that these decisions have the practical effect of amending some provisions of the LOSC without using the amendment procedures set out in the Convention.

173

7.4 Development of the Law of the Sea Through International Organisations

The role of international organisations is increasingly important in international law, and the same applies to the law of the sea. Notably, several international organisations, including the UN ‘family ’, make an important contribution to the development of the law of the sea. In this regard, the best example may be the International Maritime Organization (IMO). The IMO has a wide jurisdiction relating to the safety of navigation as well as the protection of the marine environment. To date, many instruments have been adopted under the auspices of the IMO.

174

Those instruments have become more important after the entry

into force of the LOSC, since the practice of the States Parties to the Convention shall be in

170 171

Harrison,

Scienti 172 174

Making the Law of the Sea

, p. 78.

SPLOS/73, 14 June 2001, pp. 11 –13, paras. 67– 84 (in particular, para. 81). The date of adoption of the

fic and Technical Guidelines is 13 May 1999.

SPLOS/183, 20 June 2008, p. 2, para. 1(a).

173

See also Harrison,

Making the Law of the Sea

, pp. 81–82.

The IMO does not have the power to adopt treaties itself and the organ must convene diplomatic conferences

UNTS Making the Law of the Sea The IMLI Manual Oxford Handbook

for this purpose. Article 2(b) of the 1948 Convention on the International Maritime Organisation. 289 p. 48. Entered into force 17 March 1958. See also Harrison,

G. Librando, ‘The International Maritime Organization and the Law of the Sea ’, in pp. 577 –605; A. Chircop, ‘The International Maritime Organisation’, in

,

, pp. 158–159; ,

, pp. 416–438.

44 International Law Governing Jurisdictional Zones conformity with the international standards created through the IMO by virtue of ‘ rules of 175

reference ’ .

According to the ‘ rules of reference’ , relevant provisions of the LOSC must be

implemented in accordance with rules adopted under the auspices of the IMO, to the extent that these rules are ‘applicable’ or ‘ generally accepted’ . In so doing, IMO instruments can further elaborate provisions of the LOSC. Another

important

organisation

in

field

the

of

law

of

the

sea

is

the

Food

and

Agriculture Organisation of the UN (FAO). The FAO is the only organisation of the UN system that has a global

fisheries

body, the Committee on Fisheries. The FAO thus

fi sheries, including review of fi sheries and assistance to developing countries. At the same time, the FAO serves as the forum for discussion and negotiation of international instruments in this field. has a prime role in the conservation and management of world

176

The instruments adopted under the auspices of the FAO may affect interpretations and implementation of the LOSC. The 1995 FAO Code of Conduct on Responsible Fishing is a

case

in

members global

point. and

The

Code

non-members

organisations,

of of

whether

Conduct the

is

FAO,

global

fishing

governmental

or

in

scope,

entities,

and

is

directed

subregional,

non-governmental,

and

towards

regional all

and

persons

fishery resources and management and development fi sheries pursuant to Article 1.2. While the Code of Conduct is a voluntary instrument relating to fi sheries, certain parts of it are based on relevant rules of international law, including those reflected in the LOSC. The Code of Conduct is to be interpreted and applied in conformity with the relevant rules of international law, as reflected in the concerned with the conservation of of

LOSC. The Code of Conduct is also to be interpreted and applied in conformity with the 1995 UN Fish Stocks Agreement under Article 3. To this extent, in part the Code of Conduct may interpret and amplify relevant provisions of the LOSC as well as the 1995 Fish Stocks Agreement. Next, the role of the UN General Assembly in the development of the law of the sea must be mentioned.

177

In light of its universal membership, the UN General Assembly can

provide an international forum for discussion and negotiation on the law of the sea, including the LOSC. After the entry into force of the LOSC in 1994, the General Assembly decided ‘to undertake an annual review and evaluation of the implementation of the Convention [LOSC] and other developments relating to ocean affairs and the law of the sea ’.

175 176

178

In relation to this, the General Assembly has requested the UN Secretary-General to

‘Rules of reference’ will be discussed in Chapter 8, section 4.2.

The FAO has a treaty-making role. See Article XIV(1) of the 1945 FAO Constitution. The FAO Council also has a power to approve relevant treaties pursuant to Article XIV(2) of the FAO Constitution. Text in: FAO,

Basic Texts of the Food and Agricultural Organization of the United Nations

, 2013 edn, vol. I (Rome, FAO,

2013), p. 3. Available at: www.fao.org/docrep/meeting/022/K8024E.pdf. Entered into force 16 October 1945. See also Harrison, 177

Making the Law of the Sea

, p. 207.

See H. Corell, ‘The United Nations: A Practitioner’s Perspective ’, in

Oxford Handbook Traité

G. Goettsche-Wanli, ‘Le rôle des Nations Unies’ in Forteau and Thouvenin (eds.), 178

UN General Assembly, operative part.

Law of the Sea

, pp. 357–359; , pp. 107–127.

, A/RES/49/28, adopted on 6 December 1994, para. 12 of the

45

The Law of the Sea in Perspective prepare annually a comprehensive report on developments relating to the law of the sea.

179

The UN Secretary-General’ s reports provide the basis for annual debate on oceans policy and the law of the sea.

180

Furthermore, the UN Open-ended Informal Consultative Process on Oceans and the Law of the Sea (ICP) was established by the General Assembly Resolution of 24 November 1999.

181

The ICP has met every year since 2002 and has established itself as a useful forum

for discussions on marine affairs.

182

The ICP is open to observers from relevant inter-

national institutions and non-governmental organisations (NGOs). At the process, independent experts are invited to participate in discussion panels which are designed to examine relevant topics.

183

The work of the ICP is important to facilitate the annual review

of developments in ocean affairs by the UN General Assembly.

184

The UN General Assembly

contributes to promoting cooperation and coordination through its annual review of developments in the

field of oceans affairs and the law of the sea.

185

More generally, it is widely acknowledged that the UN General Assembly makes important contributions to the making of customary international law. Considering that rules of customary law governing the oceans are a matter of interest for all States beyond the circle of the Contracting Parties to the LOSC, the role of the General Assembly in customary lawmaking in this

field will not lose its importance. Since all States have in theory an equal

voice and an equal vote in the General Assembly, it can also contribute to enhancing 186

legitimacy and democratisation in the making of customary law.

In addition, the practice of regional international institutions merits mention. By way of

ficant competences conferred by its fisheries. The EU as a party to the LOSC may

illustration, the European Union (EU) exercises signi Member States in areas such as international

affect the development of the law of the sea through its own practice.

187

Finally, some mention must be made of the role of NGOs in the development of the law of the

sea.

NGOs

perform

diverse

functions

in

international

relations,

such

as:

raising

public awareness, taking political initiatives, initiating conferences, drafting a treaty or

179 180

Ibid., para. 15(a) of the operative part. J. Harrison, Saving the Oceans through Law: The International Legal Framework for the Protection of the Marine Environment (Oxford University Press, 2017), pp. 292 –293.

181 182

UN General Assembly, A/RES/54/33, adopted on 24 November 1999, p. 2, para. 2. However, the General Assembly Resolution of 18 January 2000 made clear that the ICP ‘should not pursue legal or juridical coordination among the different legal instruments ’, ibid., p. 3, para. 3(d).

183 184

Harrison, Making the Law of the Sea, pp. 252–257. UN General Assembly Resolution, Ocean and the Law of the Sea, A/RES/68/70, 27 February 2014, p. 6. See also Harrison, Saving the Oceans, p. 295.

185 186

Ibid., p. 292. A. Boyle and C. Chinkin, The Law Making of International Law (Oxford University Press, 2007), pp. 108 and 116.

187

J. Odermatt, ‘The Development of Customary International Law by International Organizations ’ (2017) 66 ICLQ, p. 501. Generally on this issue, see E. Paasivirta, ‘Four Contributions of the European Union to the Law of the Sea ’, in J. Czuczai and F. Naert (eds.), The EU as a Global Actor: Bridging Legal Theory and Practice, Liber Amicorum in Honour of Ricardo Cosalbo Bono (Leiden, Brill/Nijhoff, 2017), pp. 241–265; E. Oaasivirta, ‘Un acteur regional privilégié: L’Union Européenne ’, in Forteau and Thouvenin (eds.), Traité, pp. 277 –303.

The EU also rati

fi ed the 1994 Implementation Agreement and the 1995 Fish Stocks Agreement, respectively.

46 International Law Governing Jurisdictional Zones

non-binding instruments, developing and clarifying rules and standards, presentation of information, deployment for the implementation of treaties, verification and monitoring.188 NGOs are engaged in the formation of law and policy concerning marine affairs, although the scope of their involvement varies considerably. In this regard, it is of particular interest to note that some treaties and international organisations allow NGOs to participate in meetings of the Parties as observers. An illustrative example is provided by the 1992 Convention for the Protection of the Marine Environment in the North-East Atlantic (the OSPAR Convention). 189 Under Article 11(1)(b) of the Convention, the OSPAR Commission may, by unanimous vote of the Contracting Parties, decide to admit as an observer any international governmental or any nongovernmental organisation the activities of which are related to the Convention . Such observers are allowed to participate in meetings of the OSPAR Commission but without the right to vote and to present to the Commission any information or reports relevant to the objectives of the Convention by virtue of Article 11(2). To this extent, NGOs can influence the work of the Commission concerning marine environmental protection. It is also notable that the IMO permits the participation of NGOs as observers in accordance with its Rules and Guidelines.190 Normally one observer from each non-governmental international organisation shall be admitted to any session or meeting. Even though the observer has no voting rights, they may speak on any item of the agenda of special interest to the non-governmental international organisation of which they are the representative. 191 This procedure enables the IMO to obtain information or expert advice from NGOs with special knowledge in a particular sector of the organisation s activities. 192 ‘

’

’

8 CONCLUSIONS

The matters considered in this chapter can be summarised as follows: (i) The law of the sea has a dual function, namely the spatial distribution of State jurisdiction and ensuring international cooperation in marine affairs. Basically, the first function of the law aims to reconcile the various interests of individual States, by dividing the ocean into multiple jurisdictional zones. The second function seeks to protect the common interests of the international community as a whole, by focusing on the unity of the ocean. These two functions are not mutually exclusive, but coexist in the law.

188

For an overview of NGOs in international law, see S. Charnovitz, Nongovernmental Organisations and International Law (2006) 100 , pp. 348 372; P.-M. Dupuy and L. Vierucci (eds.), fi (Cheltenham, Edward Elgar, 2008). Entered into force 25 March 1998. Text in: 2345 , p. 67. Rules and Guidelines for Consultative Status of Non-Governmental International Organisations with the International Maritime Organisation, available at: www.imo.org/en/About/Membership/Documents/RULES %20AND%20GUIDELINES%20FOR%20CONSULTATIVE%20STATUS.pdf. ., Rule 7. ., Rule 2. To date, there are some 79 NGOs in consultative status with the IMO. See www.imo.org/en/About/Membership/Pages/Default.aspx. ‘

’

189 190 191 192

AJIL

NGOs in International

–

Law: Ef ciency in Flexibility?

UNTS

Ibid Ibid

47

The Law of the Sea in Perspective (ii) Like other branches of international law, the principal sources of the law of the sea consist of customary law and treaty law. Further to this, judicial decisions also

fication,

have an important role to play in the identi formation and

of

rules

guidelines

of

law.

adopted

by

Moreover,

non-binding

international

clari

instruments,

organisations,

and interpretation of relevant rules in this legal acts and considerations of humanity have some

fication,

also

field. In influence

consolidation and

such

affect

as

the

resolutions formulation

addition to this, unilateral on the development of the

law of the sea. (iii) The law of the sea is essentially governed by three principles, namely the principle of freedom, the principle of sovereignty and the principle of the common heritage of mankind. While the principle of freedom seeks to ensure various uses of the oceans by States, the principle of sovereignty seeks to promote the interests of coastal States. In essence, the two principles seek to safeguard interests of individual States. However, the principle of the common heritage of mankind seeks to protect the common interest of mankind as a whole. In this sense, it may be said that this principle provides a perspective beyond the traditional State-to-State system in the law. (iv) The law of the sea was progressively codi

fied through three UN Conferences on the

Law of the Sea. In particular, UNCLOS III which adopted the LOSC marked an important landmark in the development of the law of the sea. UNCLOS III was characterised by the universality of the participants, its long duration and the enormity of the task. UNCLOS III introduced

five procedures for negotiations, namely, the consensus procedure, the package-

deal approach, the group approach, informal negotiations and the single text approach. These techniques provide an interesting insight into the codi

fication and development of

international law through an international conference. (v) It is beyond serious argument that the LOSC is the most important instrument in the law of the sea. The Convention is characterised by four main features:

• • • •

comprehensiveness of issues covered by the Convention, determination of the maximum breadth of the territorial sea, establishment of compulsory procedures of dispute settlement, and establishment of three new institutions, namely the International Seabed Authority, ITLOS and the CLCS.

It must also be remembered that reservations are prohibited with a view to securing the integrity of the Convention. (vi) The adoption of the LOSC does not mean an end to the history of the law of the sea. After 1982, many binding and non-binding instruments were adopted in the

field of the law

of the sea. The 1994 Implementation Agreement and the 1995 Fish Stocks Agreement are of particular importance. Furthermore, international organisations, such as the IMO and FAO, make an important contribution to the development of the law of the sea by adopting various treaties and guidelines. Thus particular attention must be paid to the interaction between the LOSC and other binding and non-binding instruments concerning marine affairs.

48 International Law Governing Jurisdictional Zones

FURTHER READING 1 General Among modern textbooks and monographs on the law of the sea, the following works are of particular interest:

IMLI Manual on International Maritime Law, vol. I (Oxford University Press, 2014) (hereinafter IMLI Manual). D. Attard et al. (eds.), The IMLI Treaties on Global Ocean Governance, 3 vols. (Oxford University D. J. Attard, M. Fitzmaurice and N. A. Martínez Gutiérrez (eds.),

Press, 2018).

The International Law of the Sea, 2 vols. (Aldershot, Dartmouth, 1994). The Law of the Sea, 3rd edn (Manchester University Press, 1999). C. J. Colombos, The International Law of the Sea, 6th edn (London, Longman, 1994). R.-J. Dupuy and D. Vignes (eds.), A Handbook on the New Law of the Sea , 2 vols. (Dordrecht, E. D. Brown,

R. R. Churchill and A. V. Lowe,

Nijhoff, 1991).

Traité de droit international de la mer (Paris, Pedone, 2017). L. Lucchini and M. Voelckel, Droit de la mer , 3 vols. (Paris, Pedone, 1990). M. S. McDougal and W. T. Burke, The Public Order of the Oceans (New Haven, Yale University M. Forteau and J-M. Thouvenin (eds.),

Press, 1962). D. P. O ’Connell (I. A. Shearer (ed.)),

The International Law of the Sea , 2 vols. (Oxford, Clarendon

Press, 1982 and 1984). J.-P. Pancracio,

Droit de la mer (Paris, Dalloz, 2010).

The Oxford Handbook of the Law Oxford Handbook ). The International Law of the Sea, 2nd edn (Oxford and Portland, OR,

D. Rothwell, A. G. Oude Elferink, K. N. Scott and T. Stephens (eds.),

of the Sea

(Oxford University Press, 2015) (hereinafter

D. Rothwell and T. Stephens, Hart Publishing, 2016).

T. Scovazzi, ‘The Evolution of International Law of the Sea: New Issues, New Challenges ’ (2000) 286

RCADI pp. 39–243. Le droit de la mer entre universalisme et régionalisme

A. M. Smolinska,

(Brussels, Bruylant,

2014). L. B. Sohn, K. G. Juras, J. E. Noyes, E. Franckx,

Law of the Sea in a Nutshell, 2nd edn (St Paul, MN,

West, 2010).

fi cation du droit international et pratique des états dans le droit de la mer

T. Treves, ‘ Codi

’ (1990-IV)

RCADI pp. 9–302. P. Vincent, Droit de la mer (Brussels, Larcier, 2008). 223

2 Commentary on the UN Convention on the Law of the Sea The seven-volume commentary on the LOSC was undertaken by the University of Virginia School of Law under the general direction of M. H. Nordquist. M. H. Nordquist et al. (eds.),

United Nations Convention on the Law of the Sea 1982:

A Commentary , vol. I (Leiden, Nijhoff, 1985), vol. II (1993), vol. III (1995), vol. IV (1991), vol. V (1989), vol. VI (2002) and vol. VII (2011). A. Prölss (ed.),

The United Nations Convention on the Law of the Sea: A Commentary (Oxford, Hart

Publishing, 2017).

49

The Law of the Sea in Perspective

3 Anthologies/Collection of Articles There are many anthologies or collection of articles on the law of the sea. In particular, the following books provide useful insights into contemporary issues: J. Barrett and R. Barnes, Law of the Sea: UNCLOS as a Living Treaty (London, British Institute of International and Comparative Law, 2016). R. Caddell and R. Thomas (eds.), Shipping, Law and the Marine Environment in the 21st Century: Emerging Challenges for the Law of the Sea-Legal Implications and Liabilities (Oxford, Lawtext Publishing, 2013). H. Caminos, Law of the Sea (Farnham, Ashgate, 2001). A. Chircop, T. L. McDorman, S. J. Rolston (eds.), The Future of Ocean Regime-Building: Essays in Tribute to Douglas M. Johnston (Leiden, Brill/Nijhoff, 2009). R. Casando Raigón and G. Cataldi (eds.), L’évolution et l’état actuel du droit international de la mer: Mélanges de droit de la mer offerts à Daniel Vignes (Brussels, Bruylant, 2009). Lilian del Castillo (ed.), Law of the Sea, from Grotius to the International Tribunal for the Law of the Sea: Liber Amicorum Judge Hugo Caminos (Leiden, Brill/Nijhoff, 2015). P. Ehlers, E. Mann-Borgese and R. Wolfrum (eds.), Marine Issues (The Hague, Kluwer, 2002). C. Espósito, J. Kraska, H. N. Scheiber and Moon-Sang Kwon (eds.), Ocean Law and Policy: Twenty Years of Development Under the UNCLOS Regime (Leiden, Brill/Nijhoff, 2016). E. Franckx and P. Gautier, The Exercise of Jurisdiction over Vessels: New Developments in the Fields of Pollution, Fisheries, Crimes at Sea and Traf

ficking of Weapons of Mass Destruction

(Brussels, Bruylant, 2010). D. Freestone (ed.), The 1982 Law of the Sea Convention at 30: Success, Challenges and New Agendas (Leiden, Brill/Nijhoff, 2013). D. Freestone, R. Barnes and D. Ong (eds.), The Law of the Sea: Progress and Prospects (Oxford University Press, 2006). H. Hestermeyer, N. Matz-Lück, A. Seibert-Fohr and S. Vöneky (eds.), Law of the Sea in Dialogue (Heidelberg, Springer, 2010). Keyaun Zou (ed.), Sustainable Development and the Law of the Sea (Leiden, Brill/Nijhoff, 2017). Global Commons and the Law of the Sea (Leiden, Brill/Nijhoff, 2018). Norman A. Martínez Gutiérrez (ed.), Serving the Rule of International Maritime Law: Essays in Honour of Professor David Joseph Attard (London and New York, Routledge, 2010). T. M. Ndiaye and R. Wolfrum (eds.), Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas A. Mensah (Leiden and Boston, Brill/Nijhoff, 2007). A. G. Oude Elferink (ed.), Stability and Change in the Law of the Sea: The Role of the LOS Convention (Leiden, Brill/Nijhoff, 2005). A. G. Oude Elferink and D. R. Rothwell (eds.), Oceans Management in the 21st Century (Leiden, Nijhoff, 2004). H. Ringbom (ed.), Jurisdiction Over Ships: Post-UNCLOS Developments in the Law of the Sea (Leiden, Brill/Nijhoff, 2015). D. R. Rothwell (ed.), Law of the Sea (Cheltenham, Edward Elgar, 2013). H. N. Scheiber and J.-H. Paik (eds.), Regions, Institutions, and Law of the Sea: Studies in Ocean Governance (Leiden, Brill/Nijhoff, 2013). H. N. Scheiber, N. Oral and Moon-Sang Kwon (eds.), Ocean Law Debates: The 50-Year Legacy and Emerging Issues for the Years Ahead (Leiden, Brill/Nijhoff, 2018). C. Schoñeld, Seokwoo Lee and Moon-Sang Kwon (eds.), The Limits of Maritime Jurisdiction (Leiden, Brill/Nijhoff, 2013).

50 International Law Governing Jurisdictional Zones A. Strati, M. Gavoueli and N. Skourtos (eds.), Unresolved Issues and New Challenges to the Law of

the Sea: Time Before and Time After (Leiden, Brill/Nijhoff, 2006). C. R. Symmons (ed.), Selected Contemporary Issues in the Law of the Sea (Leiden, Brill/Nijhoff, 2011). 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 (Leiden, Brill/Nijhoff, 2013). D. Vidas (ed.), Law, Technology and Science for Oceans in Globalisation: IUU Fishing, Oil Pollution,

Bioprospecting, Outer Continental Shelf (Leiden, Brill/Nijhoff, 2010). D. Vidas and P. J. Schei (eds.), The World Ocean in Globalisation: Climate Change, Sustainable

Fisheries, Biodiversity, Shipping, Regional Issues (Leiden, Brill/Nijhoff, 2011). R. Warner and S. Kaye (eds.), Routledge Handbook of Maritime Regulation and Enforcement (London, Routledge, 2016).

4 Codification of the Law of the Sea Documents on the Hague Conference for the Codi

fi cation of International Law are reproduced in fi

S. Rosenne (ed.), League of Nations Conference for the Codi cation of International Law 1930 , 4 vols. (New York, Oceana, 1975). Concerning the UN Conference on the Law of the Sea, see the

ficial Records , 7

following documents: First United Nations Conference on the Law of the Sea, Of vols. (1958); Second United Nations Conference on the Law of the Sea, Of (1960);

fi

ficial

Records, 2 vols.

Third United Nations Conference on the Law of the Sea, Of cial Records , 17 vols.

(1973 –1982). More comprehensive documents on the UNCLOS III are reproduced in R. Platzöder,

Third United Nations Conference on the Law of the Sea, 18 vols. (Dobbs Ferry, Oceana, 1982 –1988). Documents of the Preparatory Commission are also reproduced in R. Platzöder, The Law of the Sea

(Second Series) , 15 vols. (Dobbs Ferry, Oceana, 1983–1994). See also S. Oda, The Law of the Sea in Our Time , 2 vols. (Leiden, Sijthoff, 1977).

5 Collections of Documents E. D. Brown, The International Law of the Sea, Vol. II, Documents, Cases and Tables (Aldershot, Dartmouth, 1994). A. V. Lowe and S. A. G. Talmon, The Legal Order of the Oceans: Basic Documents on the Law of the

Sea (Oxford, Hart Publishing, 2009). New Directions in the Law of the Sea (Dobbs Ferry, Oceana Publications, 1973–1981, 1983–1995, 1996–1999). Netherlands Institute for the Law of the Sea, International Organizations and the Law of the Sea:

Documentary Yearbook, 18 vols. (Dordrecht, Nijhoff, 1985–2002). S. Oda, The International Law of the Ocean Development: Basic Documents, 2 vols. (Leiden, Sijthoff, 1972–1975). L. B. Sohn and J. E. Noyes, Cases and Materials on the Law of the Sea (New York, Transnational Publishers, 2004).

6 Development of the Law of the Sea R. P. Anand, Origin and Development of the Law of the Sea (The Hague, Nijhoff, 1982). A. Boyle, ‘Further Development of the Law of the Sea Convention: Mechanisms for Change’ (2005) 54 ICLQ , pp. 563–584.

51

The Law of the Sea in Perspective A. Boyle and C. Chinkin, ‘ UNCLOS III and the Process of International Law-Making’, in T. M. Ndiaye and R. Wolfrum (eds.), Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas A. Mensah (Leiden and Boston, Brill/Nijhoff, 2007), pp. 371–388. H. Caminos and M. R. Molitor, ‘ Progressive Development of International Law and the Package Deal’ (1985) 79 AJIL, pp. 871–890. A. H. Dean, ‘The Geneva Conference on the Law of the Sea: What Was Accomplished’ (1958) 52 AJIL, pp. 607 –628. A. de Marffy, ‘ The Pardo Declaration and the Six Years of the Sea-Bed Committee ’, in R.-J. Dupuy and D. Vignes (eds.), A Handbook of the New Law of the Sea, vol. 1 (Dordrecht, Nijhoff, 1991), pp. 141–162. J. Evensen, ‘Working Methods and Procedures in the Third United Nations Conference on the Law of the Sea’ (1986) 199 RCADI, pp. 417 –519. G. Fitzmaurice, ‘ Some Results of the Geneva Conference on the Law of the Sea’ (1959) 8 ICLQ, pp. 73–121. T. W. Fulton, The Sovereignty of the Sea (Edinburgh and London, William Blackwood and Sons, 1911). G. Gidel, Le droit international public de la mer: le temps de paix, 4 vols. (Paris, Duchemin, 1981). J. Harrison, Making the Law of the Sea: A Study in the Development of International Law (Cambridge University Press, 2011). P. C. Jessup, The Law of Territorial Waters and Maritime Jurisdiction (New York, G. A. Jennings Co., 1927). L. Juda, International Law and Ocean Use Management: The Evolution of Ocean Governance (London and New York, Routledge, 1996). J.-P. Lévy, La Conférence des Nations Unies sur le droit de la mer: histoire d’une négotiation singulière (Paris, Pedone, 1983). B. H. Oxman, ‘The Third United Nations Conference on the Law of the Sea ’, in R.-J. Dupuy and D. Vignes (eds.), A Handbook of the New Law of the Sea, vol. 1 (Dordrecht, Nijhoff, 1991), pp. 163–244. J. K. Sebenius, Negotiating the Law of the Sea (Cambridge, MA, Harvard University Press, 1984). United Nations, ‘Documents on the Development and Codi

fication of International Law: Historical fication by International

Survey of Development of International Law and its Codi Conferences ’ (1947) 41 AJIL Supplement pp. 80–147.

J. H. W. Verzijl, International Law in Historical Perspective: Part IV, Stateless Domain (Leiden, Sijthoff, 1971).

7 Regional Studies There are many monographs dealing with the regional State practice on the law of the sea. Such monographs published after 2000 include: B. Cicin-Sain, D. VanderZwaag and M. C. Balgos (eds.), Routledge Handbook of National and Regional Ocean Policies (London, Routledge, 2015). M. Grbec, The Extension of Coastal State Jurisdiction in Enclosed or Semi-Enclosed Seas: A Mediterranean and Adriatic Perspective (London, Routledge, 2014). Keyuan Zou, China’s Marine Legal System and the Law of the Sea (Leiden, Brill/Nijhoff, 2005). Law of the Sea in East Asia: Issues and Prospects (London, Routledge, 2004).

52 International Law Governing Jurisdictional Zones S. Lee and W. Gullett (eds.), Asia-Paci

fic and the Implementation of the Law of the Sea: Regional

Legislative and Policy Approaches to the Law of the Sea Convention (Leiden, Brill/Nijhoff, 2016). R. J. Long, Marine Resource Law (Dublin, Thomson Round Hall, 2007). Nong Hong, UNCLOS and Ocean Dispute Settlement: Law and Politics in the South China Sea (London, Routledge, 2012). A. G. Oude Elferink and D. R. Rothwell (eds.), The Law of the Sea and Polar Maritime Delimitation and Jurisdiction (The Hague, Brill/Nijhoff, 2001). Park Hee Kwon, The Law of the Sea and Northeast Asia: A Challenge for Cooperation (The Hague, Kluwer, 2000). R. C. Raigón (ed.), Europe and the Sea: Fisheries, Navigation and Marine Environment (Brussels, Bruylant, 2005). J. A. Roach and R. W. Smith, Excessive Maritime Claims , 3rd edn (Leiden, Brill/Nijhoff, 2012). C. Symmons, Ireland and the Law of the Sea, 2nd edn (Dublin, Round Hall Sweet and Maxwell, 2000). J. A. Varas, Mexico and the Law of the Sea: Contributions and Compromises (Leiden, Brill/Nijhoff, 2011). Yann-huei Song and Keyuan Zou (eds.), Major Law and Policy Issues in the South China Sea (Farnham, Ashgate, 2014).

8 Journals on the Law of the Sea fi

The following journals are particularly useful for studies on the law of the sea: Asia-Paci c Journal of Ocean Law and Policy, Annuaire du droit de la mer, Brill Research Perspectives in the Law of the Sea , IMO News, International Journal of Marine and Coastal Law, Journal of Maritime Law and Commerce, Law of the Sea Bulletin, Marine Policy, Ocean Development and International Law, Ocean and Coastal Management, and Ocean Yearbook. R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (Oxford University Press,

–

2008 2011; online edition: http://opil.ouplaw.com/) (hereinafter Max Planck Encyclopedia) includes many articles on marine issues.

9 Websites Food and Agriculture Organization: www.fao.org/home/en/ International Court of Justice: www.icj-cij.org/en International Hydrographic Organization: http://iho.int/srv1/index.php?lang=en International Maritime Organization: www.imo.org/ International Tribunal for the Law of the Sea: www.itlos.org/ Permanent Court of Arbitration: https://pca-cpa.org/en/home/ United Nations Division for Ocean Affairs and the Law of the Sea: www.un.org/Depts/los/index.htm

2 Baselines and Related Issues Main Issues A primary task of the law of the sea is to determine the spatial extent of the coastal State jurisdiction over the oceans. The seaward limits of each jurisdictional zone are measured from baselines. Thus rules concerning baselines are of particular importance in the law. In particular, rules governing straight baselines and bays merit serious consideration. Furthermore, attention must be devoted to the legal status of islands and low-tide elevations because the existence of these maritime features may affect the seaward limits of marine spaces under national jurisdiction. Against that background, this chapter will address rules concerning baselines and related issues, focusing mainly on the following questions:

(i) What are the rules governing baselines? (ii) What are the problems associated with rules with regard to straight baselines? (iii) What are the rules governing juridical bays in international law? (iv) What is a historic bay and what are the elements of title to such a bay? (v) What is the de

finition of an island?

(vi) What are the differences between islands, rocks and low-tide elevations?

1 INTRODUCTION In the international law of the sea, the scope of jurisdictional zones under national jurisdiction is to be determined on the basis of distance from the coast.

1

Thus it is important

to identify the line from which the outer limits of marine spaces under the national jurisdiction of the coastal State are measured. This line is called the baseline. At the same time, the baseline is the line distinguishing internal waters from the territorial sea. The distinction is important because the legal regime of internal waters differs from that of the 2

territorial sea.

1 2

LOSC, Articles 3, 33, 57, 76(1). See also footnote 4 of Chapter 1. The most important difference between internal waters and the territorial sea is that a right of innocent passage does not apply to internal waters, while the right applies to the territorial sea. The right of innocent passage will be discussed in Chapter 3, section 3.

53

54

International Law Governing Jurisdictional Zones When considering how international law governs the limits of marine spaces, particular attention should be drawn to the tension between the necessary generality of law and the diversity of coastal con have con

fi

a

certain

degree

fi

gurations. As with all types of law, rules of the law of the sea must

of

generality

in

their

scope.

At

the

same

time,

as

each coastal

guration differs, there is a need to take particular geographical elements into account.

The tension creates a dif

fi

cult question in the relationship between a general rule and

exceptions to the rule. On the one hand, strong emphasis on the generality of law may entail

the

risk

of

underestimating

special

interests

of

a

coastal

State

in

a

particular

geographical situation. On the other hand, allowance of too many exceptions to a general rule will eventually destroy the rule itself. Noting this question, the present chapter will examine rules of international law governing baselines and related issues.

2 BASELINES

Under the LOSC, four types of baselines are at issue: normal baselines, straight baselines, closing lines across river mouths and bays, and archipelagic baselines.

3

2.1 Normal Baselines

The normal baseline is the low-water line drawn along the coast. In this regard, Article 5 of the LOSC provides as follows:

Except where otherwise provided in this Convention, the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale

fi

charts of

cially recognized by the coastal State.

The phrase ‘except where otherwise provided in this Convention’ suggests that the baseline is in principle the low-water line. In relation to this, the ICJ, in the 1951

Fisheries

Anglo-Norwegian

case, stated:

[F]or 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. This criterion is the most favourable to the coastal State and clearly shows the character of territorial waters as appurtenant to the land territory.

4

The low-water line is the intersection of the plane of low water with the shore. While States have discretion in choosing an appropriate low-water line, normally they will select the low-water line shown on existing charts. In this regard, the ILC stated that ‘there is no

3

Archipelagic baselines will be discussed in Chapter 3, section 5.3.

4

ICJ Reports 1951, p. 128.

55 Baselines and Related Issues 5

uniform standard by which States in practice determine this line ’ .

This view seems to

remain valid. The level of the low-water line relies on the tidal datum. several de

6

Tidal datum has

finitions and the selection is left to the discretion of each State.

7

Obviously the

lower the low-water line selected, the further seaward the normal baseline will lie. However,

ficant tidal range. Article 5 of the LOSC contains no further speci fication with regard to the identification of 8

the impact of a lower-tidal datum will be minimal, unless there is a signi

the low-water line and the scale of ‘large-scale charts’ . It can therefore be presumed that States exercise some discretion in this matter. According to the UN Division for Ocean Affairs and the Law of the Sea (hereinafter UNDOALOS), the range of the scale of the chart may lie between 1:50,000 to 1:200,000 where circumstances permit.

9

An emerging challenge for coastal States concerns changes in coastal con

figuration or

loss of coastal areas resulting from rising sea levels. Under positive international law, the existing law of the normal baseline can be considered to apply when signi

ficant

coastal

change is caused by either territorial gain or territorial loss. It follows that the normal

flect changes to the coast caused by

baseline is ambulatory and can move landward to re sea-level rise and erosion. States

to

provide

10

real-time

In reality, however, it would be unpractical to require coastal noti

fication

of

changing

baselines.

reasonable to consider that the normal baseline is speci

fied

Accordingly,

in an of

ficially

it

seems

recognised,

large-scale and reasonably up-to-date chart, and that coastal States have some limited 11

discretion as to the timing of their chart updates.

5 6

(1956) 2 YILC, p. 267.

fi ned as the reference plane (or surface) to which the height of the predicted tide is

A tidal datum may be de

referred. The tidal datum is a subset of the vertical datum, which comprises any plane or surface used as a reference to measure vertical distances, such as depths, drying features, heights on shore, etc. Nuno Sérgio

finition of Maritime Limits and Boundaries

Marques Antunes, ‘The Importance of the Tidal Datum in the De

fi

’

Maritime Brie ng, vol. 2, no. 7 (Durham, International Boundaries Research Unit, 2000), p. 5. 7

The commonly used tidal datum includes: (i) lowest low water (LLW)/highest high water (HHW); (ii) lowest astronomical tide (LAT)/highest astronomical tide (HAT); (iii) mean lower low-water springs (MLLWS)/mean higher high-water springs (MHHWS); (iv) mean low-water springs (MLWS)/mean high-water springs (MHWS); (v) mean higher low water (MHLW)/mean higher high water (MHHW); (vi) mean low water (MLW)/ mean high water (MHW); (vii) mean lower low water (MLLW)/mean lower high water (MLHW); (viii) mean low water neaps (MLWN)/mean high water neaps (MHWN); (ix) mean sea-level (MSL) etc., ibid ., pp. 28–29. See also D. P. O ’Connell, in I. A. Shearer (ed.), The International Law of the Sea , vol. I (Oxford, Clarendon Press, 1982), pp. 173– 174; UNDOALOS, The Law of the Sea: Baselines: An Examination of the Relevant

Provisions of the United Nations Convention on the Law of the Sea (New York, United Nations, 1989), p. 43. 8

C. Carleton and C. Sho

field,

‘Developments in the Technical Determination of Maritime Space: Charts,

fing, vol. 3, no. 3 (Durham, International

Datums, Baselines, Maritime Zones and Limits’ Maritime Brie Boundaries Research Unit, 2001), p. 21. 9

UNDOALOS, Baselines, p. 5. K. Trümpler, ‘Article 5’, in A. Prölss (ed.), United Nations Convention on the Law

of the Sea: A Commentary (Munich, Beck/Oxford, Hart Publishing/Baden-Baden, Nomos, 2017) (hereinafter Prölss, A Commentary), p. 57: ‘the term “large-scale chart” should be understood as a chart preferably with the scale of 1:30,000 to 1:75,000 or the largest scale chart available, but no smaller than 1:250,000.’ 10

This view was supported by the ILA Committee on Baselines under International Law of the Sea in 2012. See

fia Conference (2012), Baselines under the International Law of the Sea , pp. 32

ILA, So

–33, available at the

ILA website: www.ila-hq.org/. 11

C. G. Lathrop, ‘Baselines’, in Oxford Handbook , pp. 77–78; Trümpler, ‘Article 5’ in Prölss, A Commentary, pp. 59–60.

56

International Law Governing Jurisdictional Zones The validity of the charted low-water line can be a matter for debate in international adjudication. In the Guyana/Suriname Arbitration, Guyana objected to Suriname’ s base point S14, which Suriname had identi

fied

by relying on what Guyana claimed to be an

inaccurate chart. While the Arbitral Tribunal did not accept Guyana ’s challenge to the

ficially recognised charts may be challenged before an international tribunal; and that the of ficially recognised charted line,

12

this instance seems to suggest that the accuracy of of

chart is presumed accurate, the burden of proof being on the party challenging that chart.

13

The LOSC contains no provision with regard to the normal baseline along polar coasts permanently covered by ice shelves.

14

Nor is it possible to detect consistent State practice

on this matter. As a possible solution, it has been submitted that the low-water line along the ice shelf contour could be the baseline. However, the ice foot may seasonally change. A question thus arises as to how it is possible to take into account seasonal variations in the ice shelf contour. Another possibility might be to use the average seasonal maximum or minimum edge of the ice shelf as a baseline. Yet it would seem that this method is untested in practice.

2.2 Straight Baselines

(a) General Considerations While the low-water line is a general rule, its application may be impractical in some situations due to a highly complicated coastal con

figuration.

In such case, the straight

baseline system may come into play. Straight baselines can be de

fined as:

fied or discrete points on the low-water line, usually

a system of straight lines joining speci

known as straight baseline turning points, which may be used only in localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity.

15

The essential difference between the straight baseline system and the normal baseline system is that under the straight baseline system, baselines are drawn across water, not along the coast (see Figure 2.1).

12 13

16

The Guyana/Suriname Arbitration, 17 September 2007, 30 RIAA, p. 110, paras. 395 –396.

fia 2012, Baselines under the International Law of the Sea, pp. 14–15, available

ILA, Conference Report of So

at: www.ila-hq.org/en/committees/index.cfm/cid/1028. 14

Generally on this issue, see T. Scovazzi, ‘Baselines’, in Max Planck Encyclopedia, para. 4; UNDOALOS, Baselines, p. 5; C. C. Joyner, ‘The Status of Ice in International Law’, in A. G. Oude Elferink and D. R. Rothwell (eds.), The Law of the Sea and Polar Maritime Delimitation and Jurisdiction (The Hague, Kluwer, 2001), pp. 23 et seq.; D. R. Rothwell, ‘Antarctic Baselines: Flexing the Law of Ice-Covered Coastlines ’, ibid., pp. 49 et seq.

15 16

UNDOALOS, Baselines, p. 51. Sir Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice, vol. I (Cambridge University Press, 1995), p. 218.

57 Baselines and Related Issues

Land Low-water line Straight baselines

Figure 2.1 Straight baselines (Article 7(1))

Article 7(1) of the LOSC, which followed Article 4 of the Geneva Convention on the Territorial Sea and the Contiguous Zone (hereinafter the TSC), provides as follows:

In localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured.

The language of this provision suggests that the use of straight baselines is permissive, and the coastal State can freely determine whether or not to apply the method of straight baselines where a coast meets the conditions set out in Article 7. The coastal State may also combine different methods when determining baselines by virtue of Article 14. While Article 7(1) does not specify whether the appropriate points should lie on the charted low-water line, it is generally considered that the basepoints should normally lie on the low-water line rather than further inland. This view is reinforced by Article 7(2), which explicitly refers to the low-water line.

17

Like normal baselines, the landward sides of

straight baselines form part of the internal waters of the coastal State. In this case, however, a right of innocent passage will still exist in those waters by virtue of Article 8(2).

(b) The

Anglo-Norwegian Fisheries

18

Case (1951)

When considering rules governing straight baselines, the 1951

Anglo-Norwegian Fisheries

case merits particular attention because it has had a decisive effect on the development of the straight baseline system. The coastal zone concerned in the dispute (which lies north of latitude 66

±

28.8’ N) is of considerable length and includes the coast of mainland Norway as

well as all of the islands, islets, rocks and reefs, known by the name of the

17

UNDOALOS,

Baselines,

p. 24 and p. 41. The ICJ, in the 1951

Anglo-Norwegian Fisheries case,

œ

skj rgaard

also speci

fied

‘appropriate points on the low-water mark’. ICJ Reports 1951, pp. 129–130. 18

Further, see ILA Johannesburg Conference (2016),

Baselines under the International Law of the Sea,

Second

Report (2016) (hereinafter ILA Second Report (2016)), pp. 4–6. The right of innocent passage will be discussed in Chapter 3, section 3 of this book.

58 International Law Governing Jurisdictional Zones (literally, rock rampart). The number of islands, large and small, which make up the

œ

skj rgaard

is estimated by the Norwegian government to be 120,000.

19

On 12 July 1935, a Norwegian Royal Decree was enacted delimiting the Norwegian

fisheries zone north of latitude 66±

28.8’ N. The Decree provided that lines of delimitation

towards the high sea of the Norwegian drawn between

fisheries zone run parallel with straight baselines

fixed points on the mainland, on islands or rocks. This gave rise to a dispute

between the United Kingdom and Norway with regard to, inter alia, the validity of the Norwegian straight baselines laid down by the Royal Decree. For a while Norwegian

fishery

fishing a certain distance within the fishing limits. In 1948, however, the Norwegian government abandoned its lenient enforcepatrol vessels dealt leniently with foreign vessels

ment of the 1935 Decree. As a consequence, a considerable number of British trawlers were arrested. Thus, on 28 September 1949, the United Kingdom instituted proceedings against Norway before the ICJ. In

its

judgment

20

of

1951,

the

Court

made

an

important

pronouncement

on

the

baseline issue:

Where a coast is deeply indented and cut into

...

the baseline becomes independent of the

low-water mark, and can only be determined by means of a geometrical construction.

21

The Court further elaborated its view as follows:

The principle that the belt of territorial waters must follow the general direction of the coast makes it possible to

fi

x certain criteria valid for any delimitation of the territorial sea; these

fi

criteria will be elucidated later. The Court will con

ne itself at this stage to noting that, in order

to apply this principle, several States have deemed it necessary to follow the straight base-lines method and that they have not encountered objections of principle by other States.

This method

consists of selecting appropriate points on the low-water mark and drawing straight lines between them.

This

passage

22

seems

to

imply

that

‘ the

general

direction

of

the

coast’

provides

the

principle governing the baseline; and that the straight baseline method is a result of the application of this principle. This is arguably an innovation of the judgment. In the Court ’ s view, the method of straight lines had been consolidated by a constant and suf

ficiently

long practice, and other governments did not consider it to be contrary to

international law.

19

The

23

Anglo-Norwegian Fisheries

case, ICJ Reports 1951, p. 127.

Ibid.,

pp. 124– 125.

Ibid.,

pp. 128–129.

23

Ibid.,

p. 139. Decrees of Saudi Arabia (1949), Egypt (1951), Ecuador, Yugoslavia (1948) and Iran (1934)

22

Emphasis added.

Ibid.,

20

21

pp. 129–130.

established straight baselines between outer points of the mainland. M. Whiteman,

Law,

vol. 4 (Department of State Publication, 1965) p. 148.

Digest of International

59 Baselines and Related Issues The next issue involves criteria for drawing straight baselines. In this regard, the Court speci

fied three criteria:

(i) The drawing of baselines must not depart to any appreciable extent from the general direction of the coast as it is the land which confers upon the coastal State a right to the waters off its coasts. (ii) Certain sea areas lying within these lines are suf

ficiently closely linked to the land

domain to be subject to the regime of internal waters. (iii) Certain economic interests peculiar to a region, the reality and importance of which are clearly evidenced by long usage, should be taken into consideration.

24

In conclusion, the Court found, by ten votes to two, that the method of straight baselines employed by the Royal Norwegian Decree was not contrary to international law; and, by eight votes to four, that the baselines

fixed by the said Decree in application of this method

were not contrary to international law.

25

(c) Analysis of Article 7 of the LOSC Later, the formula of the

Fisheries

judgment was incorporated in Article 4 of the TSC as a

general rule governing straight baselines. Article 7 of the LOSC followed Article 4 of the TSC almost verbatim. It is clear that the phrase in Article 7(1) of the LOSC, ‘where the coastline is deeply indented and cut into ’, literally follows that in the

Fisheries

judgment.

Article 7(3) and (5) also follow the Court ’ s criteria for drawing straight baselines, by providing that:

3. 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 suf

ficiently closely

linked to the land domain to be subject to the regime of internal waters . . . 5. Where the method of straight baselines is applicable under paragraph 1, account may be taken, in determining particular baselines, of economic interests peculiar to the region concerned, the reality and the importance of which are clearly evidenced by long usage.

Here one may detect an outstanding instance of judicial impact on the development of international law. On the other hand, these treaty provisions include some elements of obscurity. Two issues must be highlighted.

first question concerns the interrelationship between the criteria provided in Article 7(1) and (5). The first two criteria concern purely geographical tests, while the third element The

concerns an economic test. A question that may arise is whether the coastal State can apply the method of straight baselines solely on the basis of the economic element. The intention of the

Fisheries judgment and Article 7 of the LOSC would seem to suggest that economic

interests alone do not justify the use of straight baselines. In fact, under Article 7(5) of the

24

ICJ Reports 1951, p. 133.

25

Ibid., p. 143.

60 International Law Governing Jurisdictional Zones LOSC, consideration of economic interests is quali

fied by the condition

‘ where the method

of straight baselines is applicable under paragraph 1 ’ . The ICJ also stated, in the 2001 Qatar/

Bahrain case (Merits):

Such conditions [of drawing straight baselines] are primarily either that the coastline is deeply indented and cut into, or that there is a fringe of islands along the coast in its immediate 26

vicinity.

A second and more debatable issue relates to the ambiguity of the criteria for drawing straight baselines. There is no objective test that may identify deeply indented coasts. It is also dif

ficult to objectively identify the existence of a

‘ fringe of islands’ . While there must

be more than one island in the fringe, the LOSC does not provide any further precision regarding the minimum number of islands. The concept of the coast’ s ‘ immediate vicinity’ 27

may also depend on subjective appreciation. Furthermore, unlike the cases of bays archipelagic baselines,

28

the LOSC does not specify

the maximum length

and

of straight

baselines, although arguably length is an important element in assessing the validity of a straight baseline.

29

As a consequence, some States drew excessively long straight baselines.

For instance, Burma (Myanmar) established the 222.3-mile long line across the Gulf of Martaban.

30

In so doing, Burma (Myanmar) enclosed about 14,300 square miles (equivalent

to the size of Denmark) as internal waters.

31

Vietnam drew the 161.3-mile long line

between Bay Canh Islet and Hon Hai Islet (Phu Qui group of islands), and the 161.8-mile long line connecting Hon Hai Islet and Hon Doi Islet.

32

Moreover, there is no objective test

which may identify the general direction of the coast. Neither is there any objective test to identify the close linkage between the land domain and the sea area lying within the straight baselines. In addition, ‘ economic interests peculiar to the region concerned ’ are also a matter of subjective appreciation. In short, the rules governing straight baselines are so abstract that the application of the rules to particular coasts is to a large extent subject to the discretion of coastal States. As a consequence, there are many instances where coastal States draw straight baselines too freely.

26

33

Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain), Judgment, ICJ Reports 2001, p. 103, para. 212.

27 30

LOSC, Article 10(5).

28

LOSC, Article 47(2).

29

Fitzmaurice, Law and Procedure, p. 239.

US Department of State, Limits in the Sea, no. 14 (1970), p. 5. This document, along with a map, is available at www.state.gov/e/oes/ocns/opa/c16065.htm.

31

R. R. Churchill and A. V. Lowe, The Law of the Sea , 3rd edn (Manchester University Press, 1999), p. 39; J. A. Roach and R. W. Smith, ‘Straight Baselines: The Need for a Universally Applied Norm ’ (2000) 31 ODIL , pp. 48.

32 33

US Department of State, Limits in the Sea, no. 99 (1983), p. 9. For an analysis in some detail of excessive baseline claims, along with illustrations, see J. A. Roach and R. W. Smith, Excessive Maritime Claims, 3rd edn (Leiden, Brill/Nijhoff, 2012), pp. 72 –133. A list of publicly available protests of straight baselines is provided by ILA Second Report (2016), pp. 17–21.

61 Baselines and Related Issues At present there is a general trend for coastal States to enclose large marine spaces as internal waters by drawing straight baselines. At the same time, the establishment of straight baselines extends the seaward limits of marine spaces under national jurisdiction towards the high seas. The straight baseline system thus plays a dual role expanding marine spaces under national jurisdiction inside and outside the baselines. While the coastal States may exercise some discretion in the application of the straight baseline method, this does not mean that the coastal States can make excessive baseline claims, independent of rules of international law. Where a baseline is clearly contrary to rules of international law on this subject, the line will be invalid at least in relation to States 34

that have objected to it.

Fisheries

It must be remembered that the ICJ, in the

Anglo-Norwegian

case, stated:

The delimitation of sea areas has always an international aspect; it cannot be dependent merely upon the will of the coastal State as expressed in its municipal law. Although it is true that the act of delimitation is necessarily a unilateral act, because only the coastal State is competent to undertake it, the validity of the delimitation with regard to other States depends upon 35

international law.

The ICJ ’s view, in the

Qatar/Bahrain

case (Merits), also bears quoting:

[T]he method of straight baselines, which is an exception to the normal rules for the determination of baselines, may only be applied if a number of conditions are met. This method 36

must be applied restrictively.

A related issue is whether State practice will lead to an agreed interpretation of the LOSC or a new rule of customary international law concerning straight baselines. The answer should be in the negative for two reasons. is highly diverse. It appears to be dif

37

First, the pattern of non-conforming practice

ficult

to consider the practice as ‘extensive and

virtually uniform ’ . Second, it must be remembered that various States as well as the EU have already protested against extravagant straight baselines. In particular, the United States consistently protests against straight baselines that, in the view of the United States, do not conform to the LOSC. These protests will make it dif

juris

ficult to formulate any opinio

on this matter.

Article 7(2)(4) and (6) of the LOSC further speci

fies

conditions for drawing straight

baselines. First, under Article 7(4), straight baselines shall not be drawn to and from

34

Where a State has accepted the baseline, however, there may be scope to argue that that State could no longer deny the validity of the baseline because of estoppels. Churchill and Lowe,

35 37

ICJ Reports 1951, p. 132.

36

The

Qatar/Bahrain

Law of the Sea,

p. 57.

case (Merits), ICJ Reports 2001, p. 103, para. 212.

R. Churchill, ‘The Impact of State Practice on the Jurisdictional Framework Contained in the LOS Convention’, in A. G. Oude Elferink (ed.),

Convention

Stability and Change in the Law of the Sea: The Role of the LOS

(Leiden and Boston, Brill/Nijhoff, 2005), p. 108.

62 International Law Governing Jurisdictional Zones low-tide elevations,

38

(i) unless lighthouses or similar installations which are permanently

above sea level have been built on them, or (ii) except in instances where the drawing of baselines to and from such elevations has received general international recognition. The

first requirement of lighthouses or similar installations serves to benefit navigators because low-tide elevations are, by nature, not visible at all times. The second requirement, which is absent from Article 4(3) of the TSC, re

flects the case of Norway where a straight baseline

was drawn to and from a low-tide elevation with no lighthouse or similar installation.

39

Second, the system of straight baselines may not be applied by a State in such a manner as to cut off the territorial sea of another State from the high seas or an EEZ in accordance with Article 7(6). This provision is based on Article 4(5) of the TSC, which was inspired by a Portuguese proposal, with the additional reference to the EEZ. Article 7(6) seeks to safeguard the access of a coastal State to any open sea area where it enjoys the freedom of

fically, this provision deals with exceptional situations, where a smaller

navigation. Speci

territory is embedded in a larger territory, such as Monaco in France, or where small islands belonging to one State lie close to the coast of another State, such as Greek islands lying close to the coast of Turkey. In fact, France established straight baselines in such a manner that they do not cut off the territorial sea of Monaco from the high seas.

40

On the other

hand, while Croatia took over the Yugoslavian straight baselines, the baselines seem to cut off Bosnia-Herzegovina from the high seas and the EEZ.

41

Third, Article 7(2) provides a rule concerning an exceptional geographical situation:

Where, because of the presence of a delta and other natural conditions, the coastline is highly unstable, the appropriate points may be selected along the furthest seaward extent of the lowwater line and, notwithstanding subsequent regression of the low-water line, the straight baselines shall remain effective until changed by the coastal State in accordance with this Convention.

This provision was drafted as a result of a Bangladeshi proposal with the speci Ganges/Brahmaputra River delta in mind. unambiguous. clari

fication.

43

For example,

the

42

fic case of the

Yet the text of Article 7(2) is not wholly

terms ‘ delta’ and

‘ highly

unstable ’ will

need

further

A question also arises as to whether only coastlines which satisfy the

conditions set out in paragraph 1 of Article 7 will qualify for use of paragraph 2 of the

38 39

40 41

Low-tide elevations will be discussed in section 4 of this chapter.

Virginia Commentary, vol. 2, pp. 102 103; V. Prescott and C. Schofield, The Maritime Political Boundaries of the World, 2nd edn (Leiden and Boston, Brill/Nijhoff, 2005), p. 160. –

Scovazzi, ‘Baselines’, p. 3, para. 16. In March 1994 and May 1996, the two countries reached an agreement guaranteeing Bosnia-Herzegovina’s

ć

access to the sea. G. Blake and D. Topalovi , ‘The Maritime Boundaries of the Adriatic Sea’,

42 43

Briefing, vol. 1, no. 8 (Durham: International Boundaries Research Unit, 1996), pp. 9 Schofi eld, The Maritime Political Boundaries of the World, p. 161. UNDOALOS, Baselines , p. 24; Virginia Commentary, vol. 2, p. 101.

Maritime

–12; Prescott and

S. McDonald and V. Prescott, ‘Baselines along Unstable Coasts: An Interpretation of Article 7(2) ’ (1990) 8

Ocean Yearbook, p. 75 and pp. 80

–81.

63

Baselines and Related Issues same provision. Considering that originally paragraphs 1 and 2 were set out in one paragraph, it appears to be reasonable to consider that the words in paragraph 2, ‘ the 44

appropriate points’ , trace back to ‘ appropriate points’ in paragraph 1 of Article 7. said, therefore, that paragraph 2 is subordinate to paragraph 1 of Article 7.

It can be

45

Fourth, some consideration should be given to the obligation of due publicity. In common with the TSC, the LOSC contains no explicit duty to publicise the normal baseline. However, it must be remembered that the normal baseline, namely, the low-water line is to be marked on large-scale charts of

ficially

recognised by the coastal State pursuant to

Article 5 of the LOSC. Concerning other types of baselines, Article 16 of the LOSC provides:

1.

The baselines for measuring the breadth of the territorial sea determined in accordance with articles 7, 9 and 10, or the limits derived therefrom, and the lines of delimitation drawn in accordance with articles 12 and 15 shall be shown on charts of a scale or scales adequate for ascertaining their position. Alternatively, a list of geographical coordinates of points, 46

specifying the geodetic datum, may be substituted. 2.

The coastal State shall give due publicity to such charts or lists of geographical coordinates and shall deposit a copy of each such chart or list with the Secretary-General of the UN.

A literal interpretation of Article 16(1) would seem to furnish the two distinct options of either publicising the baselines or the ‘ limits derived there from’ , presumably without reference to baselines.

47

It appears that the second option is unsatisfactory because the

true extent or location of the baselines is unknown to another State. As a consequence, third States cannot properly examine the validity of the baselines concerned. It must also be recalled that a baseline forms the line which distinguishes the territorial sea from internal waters. As the legal regime of internal waters differs from that of the territorial sea, it is important for mariners to know the precise location of jurisdictional zones.

48

Thus, it will be

desirable to publicise the geographical location of the baselines.

2.3 Juridical Bays

Bays are of particular importance for coastal States because of their intimate connection with land. In this regard, the Arbitral Tribunal, in the 1910 North Atlantic Coast Fisheries case, stated:

44 46

Ibid., p. 77.

45

UNDOALOS, Baselines, p. 24.

Geodetic datum means a set of parameters specifying the reference surface or the reference coordinate system used for geodetic control in the calculation of coordinates of points on the earth. International Hydrographic Organization (hereinafter IHO), Hydrographic Dictionary, Part I, vol. I, 5th edn (Monaco, 1994), p. 59.

47

UNDOALOS, Baselines, p. 40, para. 95; C. R. Symmons and M. W. Reed, ‘Baseline Publicity and Charting Requirements: An Overlooked Issue in the UN Convention on the Law of the Sea’ (2010) 41 ODIL, p. 89. The second option, namely publication of merely outer limits of the territorial sea, was not provided in Article 4(6) of the TSC.

48

Ibid., pp. 86 –87.

64 International Law Governing Jurisdictional Zones

the geographical character of a bay contains conditions which concern the interests of the territorial sovereign to a more intimate and important extent than do those connected with the open coast. Thus conditions of national and territorial integrity, of defence, of commerce and of industry are all vitally concerned with the control of the bays penetrating the national 49

coast line.

Furthermore, where the low-water line rule applies to a bay whose mouth is less than twice the breadth of the territorial sea, the high seas may be enclosed within the bay. This situation will create inconvenient results for various marine activities. Hence, according to Gidel, it has been recognised that the baseline of bays for measuring the breadth of the territorial sea is not the low-water mark.

50

Indeed, the legal concept of a bay was admitted

by the Institut de droit international in 1894 and the International Law Association in 1895, respectively.

51

It could be said that customary law has allowed the coastal States to draw a

closing line across the entrance of bays, whereby the landward waters from the closing line have become internal waters. In short, the legal concept of bays has emerged as an exception to the normal rule concerning the baseline for measuring the breadth of the 52

territorial sea.

The closing line of bays becomes the baseline for measuring the breadth of the territorial sea. Unlike the territorial sea, the right of innocent passage does not apply to internal waters. Should the waters of a bay be enclosed as internal waters, vessels

flying the flag of a

foreign State cannot enjoy innocent passage in these waters. The spatial scope of bays thus becomes a matter of important concern for shipping States. In this regard, the question that arises involves the criteria by which a coastal indentation can be recognised as a bay and the maximum length of the closing line across a bay. Concerning the latter, the 10-mile limit rule was applied by comparatively many treaties in the nineteenth and the early twentieth centuries. Nonetheless, judicial practice was more cautious about accepting the customary law character of this formula. In the 1910 North Atlantic Coast Fisheries case, for instance, the 53

Arbitral Tribunal did not consider the 10-mile formula as ‘a principle of international law’ .

The legal nature of the 10-mile formula was also at issue in the 1951 Anglo-Norwegian

49

The North Atlantic Coast Fisheries case (Great Britain v United States), 7 September 1910, United Nations, 11

RIAA, p. 196. 50

G. Gidel, Le droit international public de la mer: le temps de paix, Tome III, La mer territoriale et la zone

contiguë (reprinted, Paris, Duchemin, 1981), pp. 537–538. 51

finition et le régime de la mer territoriale (Article

‘Règles adoptées par l’Institut de Droit international sur la dé

3)’ (1904) Annuaire de l ’Institut de Droit International: vingtième volume Session d’ Edimbourg Septembre

1904 et tableau décennal de l’organisation, du personnel et des travaux de l’ Institut (1894– 1904), p. 342; International Law Association, Report of the Seventeenth Conference (1895), p. 109. While the Institut took the position that the length of the closing line across a bay would be 12 nautical miles, the ILA took the view that the length of the closing line would be 10 nautical miles. 52

Dissenting Opinion of Judge Oda in Land, Island and Maritime Frontier Dispute (El Salvador/Honduras:

Nicaragua), ICJ Reports 1992, p. 735, para. 8. 53

The North Atlantic Coast Fisheries case, 11 RIAA, p. 199.

65 Baselines and Related Issues

Fisheries

case. Although the United Kingdom asserted that the 10-mile formula could be

regarded as a rule of international law, the ICJ refused to admit the customary law character of this formula.

54

Overall it can be observed that customary international law has been

vague with regard to the maximum length of closing lines for bays. We must therefore turn to examine treaty law on this subject. At the global level, the rules governing bays were, for the

first time, set out in Article 7 of

the TSC, and these rules were echoed essentially verbatim in Article 10 of the LOSC. This provision makes it clear that three classes of bays are outside the scope of its regulations.

55

First, Article 10 ‘ relates only to bays the coasts of which belong to a single State’. Hence, bays bordered by more than one State are excluded from the scope of Article 10. Second, historic bays are not regulated by Article 10(6) of the LOSC. As will be seen later, such bays are governed by a special regime. Third, Article 10(6) provides that this provision does not apply to ‘ bays’ where the system of straight baselines is applied. It is important to note that, legally speaking, the closing line across the mouth of a bay and the straight baseline are regulated by two different rules. In this regard, there is a concern that Article 10(6) can be used as an escape device to avoid rules regulating bays and to draw straight baselines across minor curvatures which are not strictly bays. Article 10(2) then sets out geographical and geometrical criteria for identifying a bay. Concerning geographical criteria, the

first sentence of Article 10(2) provides:

For the purposes of this Convention, a bay is a well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain land-locked waters and constitute more than a mere curvature of the coast.

This provision contains two elements. First, a bay must be ‘a well-marked indentation’ and ‘ constitute more than a mere curvature of the coast’ . Second, the penetration of a bay must

be ‘in such proportion to the width of its mouth ’ and contain ‘ land-locked waters ’. It follows that the bay is surrounded on all sides but one.

56

With respect to geometrical criteria, Article 10(2) provides the semi-circle test (see Figure 2.2):

An indentation shall not, however, be regarded as a bay unless its area is as large as, or larger than, that of the semi-circle whose diameter is a line drawn across the mouth of that indentation.

Article 10(3) further elaborates conditions in the application of the semi-circle test. First, Article 10(3) stipulates:

54

ICJ Reports 1951, p. 131.

55

UNDOALOS,

Baselines, p. 29.

56

Ibid., p. 29, para. 67.

66 International Law Governing Jurisdictional Zones 24 nm

12 nm

12 nm

Island Low-water line

24 nm

Figure 2.2 Juridical bays (Article 10)

For the purpose of measurement, the area of an indentation is that lying between the lowwater mark around the shore of the indentation and a line joining the low-water mark of its natural entrance points.

A point that arises here is that it is not always easy to identify the natural entrance points of a bay.

57

In fact, some bays arguably possess more than one entrance point that can be used.

Yet Article 10 contains no criterion for identifying the natural entrance points. In certain circumstances, the low-water line of a bay can be interrupted at the mouths of rivers

flowing into the bay. Where the mouth of a river is wide and penetrated by tide, a difficult question arises as to how it is possible to calculate the area of the waters of the bay. This is particularly true in the situation where the area within the bay is very close to the area of the semi-circle. Second, Article 10(3) provides:

Where, because of the presence of islands, an indentation has more than one mouth, the semicircle shall be drawn on a line as long as the sum total of the lengths of the lines across the different mouths. Islands within an indentation shall be included as if they were part of the water area of the indentation.

Where islands are situated seaward of the entrance to bays, however, the application of the semi-circle test is not free from dif

ficulty.

58

Third, unlike the method of straight baselines, Article 10(4) and (5) sets out a restriction of the maximum length of the closing line of a bay (see Figure 2.2):

57

Ibid., p. 29, para. 69; Churchill and Lowe, Law of the Sea, p. 42; ILA Second Report (2016), –

pp. 10 11. 58

UNDOALOS,

Baselines, p. 32, paras. 72–73; Churchill and Lowe, Law of the Sea, pp. 42–43.

67

Baselines and Related Issues

4. If the distance between the low-water marks of the natural entrance points of a bay does not exceed 24 nautical miles, a closing line may be drawn between these two low-water marks, and the waters enclosed thereby shall be considered as internal waters. 5. Where the distance between the low-water marks of the natural entrance points of a bay exceeds 24 nautical miles, a straight baseline of 24 nautical miles shall be drawn within the bay in such a manner as to enclose the maximum area of water that is possible with a line of that length.

Obviously the 24-mile limit is based on the double territorial sea limit. Overall it may be said that general rules determining the bays are currently established in the LOSC. Indeed, the ICJ, in the 1992 Land, Island and Maritime Frontier Dispute case, 59

stated that ‘these provisions on bays might be found to express general customary law’ .

2.4 Historic Bays

(a) The Concept of Historic Waters The TSC and the LOSC contain no de

finition of historic bays.

60

According to the Annex VII

Arbitral Tribunal in the South China Sea Arbitration (Merits), a ‘historic bay ’ is ‘ a bay in 61

which a State claims historic waters ’ .

As historic bays are one of the categories of ‘historic

waters ’ , the legal regime of historic bays should be examined in the broad context of historic waters.

62

According to the ICJ, ‘historic waters’ usually mean ‘ waters which are

treated as internal waters but which would not have that character were it not for the existence of [a] historic title ’.

63

In the words of the Annex VII Arbitral Tribunal, ‘“Historic

waters ” is simply a term for historic title over maritime areas, typically exercised either as a claim to internal waters or as a claim to the territorial sea ’.

64

According to the Arbitral Tribunal in the South China Sea Arbitration (Merits), ‘historic title ’ is used speci

59 60

fically to refer to historic sovereignty to land or maritime areas.

65

In contrast,

ICJ Reports 1992, p. 588, para. 383. See also ILA Second Report (2016), p. 12. The doctrine of historic bays acquired its full relevance in the dissenting opinion of Judge Drago appended to the 1910 North Atlantic Coast Fisheries case. The North Atlantic Coast Fisheries case, 11 RIAA, p. 206. See also p. 197.

61

PCA Case No. 2013– 19. The South China Sea Arbitration (Merits), Award of 12 July 2016, para. 225, available at: https://pca-cpa.org/en/cases/7/.

62

For an analysis in some detail of the legal regime of historic waters, see UN Secretariat, ‘Judicial Régime of Historic Waters, Including Historic Bays’, Document A/CN.4/143, (1962) 2 Yearbook of the International Law Commission. This study sought to present certain tentative conclusions on the historic waters by examining the material in the form of known claims to ‘historic waters’, the literature of international law and previous attempts to formulate the relevant principles on this matter before 1962. Ibid., p. 5, para. 32. For a monograph on this subject, see C. R. Symmons, Historic Waters in the Law of the Sea: A Modern Reappraisal (Leiden, Brill/Nijhoff, 2008).

63 64 65

The Anglo-Norwegian Fisheries case, ICJ Reports 1951, p. 130. The South China Sea Arbitration Award (Merits), para. 225. Ibid. The 1962 Study prepared by the UN Secretariat also stated: ‘In principle, the scope of the historic title emerging from the continued exercise of sovereignty should not be wider in scope than the scope of the sovereignty actually exercised’. UN Secretariat, ‘Judicial Régime of Historic Waters’, p. 23, para. 164.

68 International Law Governing Jurisdictional Zones

The term ‘historic rights ’ is general in nature and can describe any rights that a State may possess that would not normally arise under the general rules of international law, absent particular historical circumstances. Historic rights may include sovereignty, but may equally include more limited rights, such as rights of access, that fall well short of a claim of sovereignty.

fishing rights or

66

The distinction between historic title that is linked to sovereignty and historic rights falling short of sovereignty becomes crucial in relation to optional exceptions to the compulsory procedures of international dispute settlement under Article 298(1)(a)(i) of the LOSC.

67

(b) The Concept of Historic Bays By way of example, Judge Oda, in the 1992 Land, Island and Maritime Frontier Dispute,

fined historic bays as:

de

[T]hose bay-like features (in a geographical sense) which, because of their greater width at the

fi

mouth or their lack of penetration into the landmass, could not normally be classi ed legally as bays but can for historical reasons be given the same legal status as ‘bays’.

68

Should the title to a historic bay be established, a coastal State may draw a closing line across the mouth of the bay, and the line forms the baseline. The area inside the closing line constitutes the internal waters of that State. A pivotal issue in this regard concerns the conditions for claiming historic bays. As neither the TSC nor the LOSC dealt with historic bays, they are governed by customary international law. While it is dif

ficult

to examine the actual State practice concerning

historic bays in a comprehensive manner, the study of the UN Secretariat seems to shed some light on this subject. This study enumerated three basic elements for a title to historic waters, including historic bays: (i) the exercise of authority over the area by the State claiming the historic right, (ii) the continuity of this exercise of authority, and (iii) the attitude of foreign States.

66

69

The South China Sea Arbitration Award (Merits), para. 225. This view is in line with the Eritrea/Yemen Arbitration Award (

first stage). Territorial Sovereignty and Scope of the Dispute (Eritrea and Yemen), Arbitral

Award of 9 October 1998, 22 RIAA, p. 244, para. 126. 67

The South China Sea Arbitration Award (Merits), para. 226. See also Chapter 13, section 3.3 of this book.

68

Dissenting Opinion of Judge Oda in Land, Island and Maritime Frontier Dispute, ICJ Reports 1992, pp. 733–734, para. 4. IHO de

fines

‘historic bays’ as ‘those over which the coastal state has publicly claimed

and exercised jurisdiction and this jurisdiction has been accepted by other states. Historic bays need not

fi nition of

match the de

“bay” contained in the United Nations Convention on the Law of the Sea’. IHO,

Hydrographic Dictionary, p. 105. 69

UN Secretariat, ‘Judicial Régime of Historic Waters’, p. 13, para. 80.

69 Baselines and Related Issues According to the UN Secretariat Study, ‘ there seems to be fairly general agreement’ on the three requirements.

70

However, the three elements are not wholly unambiguous. In particu-

lar, three issues merit highlighting. The

first

issue is how long the exercise of authority must continue. It is generally

considered that the State must exercise the authority for a considerable time so as to have developed into a usage.

71

In this regard, the ICJ in the Tunisia/Libya case ruled that:

‘ Historic titles must enjoy respect and be preserved as they have always been by

usage .’

72

long

As the UN Secretariat admitted, however, ‘ no precise length of time can be

indicated as necessary to build the usage on which the historic title must be based ’.

73

The second issue is at what time the opposition must occur in order to prevent the creation of a historic title. One can argue that opposition can be made only after the exercise of authority has begun. In practice, however, it may not be easy to determine 74

exactly when a State commenced to exercise its jurisdiction to a certain marine space.

Furthermore, there is no precise time limit for the lapse of time necessary to allow the emergence of the historic rights.

75

Therefore, it may have to be admitted that rules

concerning the key element of historic title or historic bays, i.e. the temporal element, remain obscure in customary international law.

final issue is whether a claim to historic bays can be justified by a vital interest of the coastal State. At the 1930 Hague Conference for the Codification of International Law, The

‘

’

for instance, the Portuguese representative asserted that:

From a variety of circumstances, the State to which the bay belongs

fi

nds it necessary to

exercise full sovereignty over it without restriction or hindrance. The considerations which justify their claim are the security and defence of the land territory and ports, and the well76

being and even the existence of the State.

It would seem that the primary intention of this line of thought is to justify the claim to historic bays ignoring the time or historicity element. Nevertheless, the bypassing of the

70

Ibid. In this regard, Churchill and Lowe considered that the three requirements were implicitly accepted by the ICJ in the El Salvador/Honduras case. Churchill and Lowe, Law of the Sea , p. 44. According to Symmons, the UN document on historic waters has had an authoritative standing with the United States courts. The commentators on historic bays and waters are also much in agreement on the requisite criteria. Symmons, Historic Waters, pp. 111– 113. It appears that the United States Department of State also supports the three elements as requirements for establishing the existence of a historic bay or historic title. United States Department of State, Limits in the Seas No. 143 China: Maritime Claims in the

South China Sea, 5 December 2014, p. 10. 71 72 73 74

UN Secretariat, ‘Judicial Régime of Historic Waters’, p. 15, para. 103.

Continental Shelf (Tunisia/Libyan Arab Jamahiriya), ICJ Reports 1982, p. 73, para. 100. UN Secretariat, ‘Judicial Régime of Historic Waters’, p. 15, para. 104. When examining elements of historic title, the 1962 UN Secretariat Study took the view that the time cannot begin to run until the exercise of sovereignty is to be effective and public. UN Secretariat, ‘Judicial Régime of Historic Waters’, p. 18, para. 124.

75 76

Ibid., p. 19, para. 131.

fi

S. Rosenne (ed.), League of Nations Conference for the Codi cation of International Law 1930 , vol. 2 (New York, Oceana, 1975), p. 402.

70 International Law Governing Jurisdictional Zones historicity element is contrary to the concept of historic bays. Furthermore, as ‘vital interest’ is a matter of subjective appreciation, giving States the right to claim ‘vital interest ’ may entail the serious risk of increasing unwarranted claims to historic bays and eventually destroy the rules determining bays in international law.

77

Hence there appears to be good

reason to argue that ‘ vital interest’ alone cannot provide a title to a historic bay. The existence of a title to historic waters, including historic bays, is to a large extent a matter of appreciation depending on speci

fic

circumstances. It seems, therefore, that the

claim to a historic bay must be evaluated on a case-by-case basis. The ICJ, in the 1982

Tunisia/Libya judgment, echoed this view, by stating that:

It seems clear that the matter continues to be governed by general international law which does not provide for a

single

‘régime’ for ‘historic waters’ or ‘historic bays’, but only

for a particular régime for each of the concrete, recognized cases of ‘historic waters’ or ‘historic bays’.

78

In light of the complications in the evaluation, it would be extremely dif

finitive list of historic bays.

de

79

ficult to establish a

In reality, claims to historic bays have often evoked protests

from foreign States. For instance, the Russian claim to the Peter the Great Bay was met with protest from many States, such as the United States, Japan, the United Kingdom, France, Canada, Sweden, the Federal Republic of Germany and the Netherlands.

80

Arguably, the most dramatic instance may be the claim by Libya to the Gulf of Sert (or Sidra).

81

On 10 October 1973, Libya claimed the Gulf as Libyan internal waters and drew a

closing line of approximately 300 miles in length across the Gulf. Many States, including Australia, France, the Federal Republic of Germany, Italy, Norway, Spain, the United States, the United Kingdom and the other EC Countries, protested the Libyan claim.

82

On 19 August

1981, the Sixth Fleet of the United States Navy conducted military manoeuvres in the proximity of the contested area. This action caused armed con aircraft shot down two Libyan Sukhoi-22

fighters above

flict

and US F-14

fighter

the Gulf of Sidra. On 25 March

1986, air and sea manoeuvres north of the Gulf of Sidra conducted by the US Sixth Fleet

77 78 79

created

another

armed

confrontation

with

Libya,

killing

twenty-four

persons.

83

UN Secretariat, ‘Judicial Régime of Historic Waters’, p. 20, paras. 135–140. Emphasis in original. ICJ Reports 1982, p. 74, para. 100. UN Secretariat, ‘Judicial Régime of Historic Waters’, p. 24, para. 176. A tentative list of historic waters or bays is presented by Scovazzi, ‘Baselines’, p. 6, para. 30 and Symmons, Historic Waters, pp. 301– 304.

80 81

Roach and Smith, Excessive Maritime Claims, p. 50. Ahnish indicates that ‘Sert ’ would be the nearest transliteration to the modern Arabic name given to the Gulf and its region. Faraj Abdullah Ahnish, The International Law of Maritime Boundaries and the Practice of

States in the Mediterranean Sea (Oxford, Clarendon Press, 1993), p. 194, footnote 1. 82 83

Roach and Smith, Excessive Maritime Claims, pp. 44–46. F. Francioni, ‘The Status of the Gulf of Sirte in International Law’ (1984) 11 Syracuse Journal of International

Law and Commerce, pp. 311 et seq .; S. R. Ratner, ‘The Gulf of Sidra Incident of 1981: A Study of the Lawfulness of Peacetime Aerial Engagements’ (1984–85) 10 Yale Journal of International Law, pp. 59 et seq.; M. M. Marsit, ‘Sidra, Gulf of ’ in Max Planck Encyclopedia, para. 4.

71

Baselines and Related Issues As illustrated by this episode, claims to historic bays may give rise to a serious international dispute. Under Article 298(1)(a)(i) of the LOSC, however, disputes involving historic bays or titles may be exempted from the compulsory procedure of peaceful settlement of international disputes embodied in Part XV of the

Convention.

84

2.5 Bays Bordered By More Than One State

Recently the number of bays bordered by more than one State has increased owing to the break-up of existing composite States. The legal regime of such bays thus merits particular attention. In this regard, a question arises as to whether States bordering a bay may draw a closing line across the mouth of the bay. Two different views can be identi According to the by agreement.

85

fied.

first view, the coastal States bordering the bay may draw a closing line

In fact, the 1988 Agreement between Tanzania and Mozambique closed the

Ruvuma Bay, by drawing a straight line linking two cross-border points.

86

Article II of the

Agreement provides: ‘All waters on the landward side of this line constitute the internal waters of the two countries. ’ Under the same provision, the internal waters are apportioned by means of a median line. According to the second view, the normal baseline rule should apply to bays bordered by more than one State because such bays are not regulated by Article 10 of the LOSC or historic bays. In this view, bays bordered by more than one State cannot be closed by a line across the mouth, and the low-water mark around the shores of the bays constitutes the baseline.

87

Legally speaking, the waters of a closing line of a bay are internal waters under

territorial sovereignty. As territorial sovereignty is exclusive by nature, the internal waters of one State cannot belong to another State at the same time. Thus, the idea of a bay bordered by more than one State, the waters of which are internal waters, contains a conceptual contradiction. In the 1992 Land, Island and Maritime Frontier Dispute, the legal status of bays bordered by more than one State – the Gulf of Fonseca – was discussed in connection with historic bays. In this case, the Chamber of the ICJ held that the Gulf was a historic bay, the waters whereof were held in sovereignty by El Salvador, Honduras and Nicaragua.

88

However,

Judge Oda questioned this view and argued that the waters of a historic bay are nothing other than internal waters, and that these waters of one State cannot abut the internal

84

As explained earlier, however, disputes concerning historic rights are not precluded under Article 298(1)(a)(i) of the Convention.

85

C. R. Symmons, ‘The Maritime Border Areas of Ireland, North and South: An Assessment of Present Jurisdictional Ambiguities and International Precedents Relating to Delimitation of “Border Bays”’ (2009) 24 IJMCL, pp. 469–470 and pp. 498– 499.

86

For the text of the Agreement, see C. I. Charney and L. M. Alexander (eds.), International Maritime Boundaries, vol. I (Dordrecht, Nijhoff, 1993), pp. 898– 902.

87

Churchill and Lowe, Law of the Sea, p. 45; Scovazzi, ‘Baselines’, p. 6, para. 29. The Harvard Law School and the Institut de droit international took this view. The Draft of Convention on Territorial Waters, Article 6, (1929) 23 AJIL Supplement, p. 243; ‘Projet de règlement relatif à la mer territoriale en temps de paix, Article 3’ (1928) 34 Annuaire de l’ Institut de Droit International, p. 756.

88

ICJ Reports 1992, p. 616, para. 432.

72

International Law Governing Jurisdictional Zones waters of another State.

89

The learned Judge took the view that ‘ there did not and still does

not (or, even, cannot) exist any such legal concept as a “pluri-State bay ” the waters of which are internal waters ’.

90

According to this view, apart from the landward side of the

low-water mark, the waters of bays bordered by more than one State fall within the category of the territorial sea, the EEZ or the high seas. A particular issue arises where a judicial bay is to be divided into plural States because of the dissolution of one State. This issue was discussed in the 2017 Croatia/ 91

Slovenia Arbitration.

According to the Arbitral Tribunal, the ‘ Bay of Savudrija/Piran’ 92

(Croatia) or ‘ Bay of Piran’ (Slovenia) was established as a juridical bay.

However,

subsequently the bay had two coastal States as a result of the dissolution of the Socialist Federal Republic of Yugoslavia. In this regard, the Tribunal took the view that the dissolution did not have the effect of altering the acquired status and that the bay remained internal waters.

93

As two coastal States cannot exercise territorial sovereignty

over the same areas at the same time, delimitation of the bay was needed. While the LOSC contains no provision on the delimitation of internal waters, the Arbitral Tribunal, in the Croatia/Slovenia Arbitration, considered that delimitation within the bay is to be made on the basis of the same principles as are applicable to the delimitation of land territories.

94

It thus made the delimitation of the bay on the basis of the effectivités at

the date of independence.

95

2.6 River Mouths

Concerning river mouths, Article 9 of the LOSC stipulates:

If a river

fl

ows directly into the sea, the baseline shall be a straight line across the mouth of the

river between points on the low-water line of its banks.

The language is almost identical to Article 13 of the TSC. This provision calls for four brief comments. First, concerning the interpretation of the phrase ‘directly’ , the authentic French text of Article 9 reads: ‘si un

fleuve se jette dans la mer sans former d’estuaire . The French text ’

clearly suggests that the phrase ‘ directly’ means ‘without forming an estuary’ . It follows that a river under Article 9 is a river without an estuary. distinguish between a river that an estuary.

89 91

flows

ficult to

96

In reality, it may be dif

directly into the sea and one entering the sea via

97

Dissenting Opinion of Judge Oda, ibid ., p. 746, paras. 24–26.

90

Ibid., p. 745, para. 24.

Arbitration between the Republic of Croatia and the Republic of Slovenia, Final Award, 29 June 2017, available at: https://pca-cpa.org/en/cases/3/.

92 96 97

Ibid., para. 881.

93

Ibid., para. 885.

94

Ibid., para. 886

95

Ibid., para. 888.

UNDOALOS, Baselines , p. 27. C. Symmons, ‘Article 9’, in Prölss, A Commentary, pp. 99–100; Churchill and Lowe, Law of the Sea , p. 47.

73

Baselines and Related Issues A second issue pertains to the selection of the base points of a straight line across the mouth of the river. Apart from the general requirement that the base points must be on the low-water line of the river bank, there is no further speci the mouth of the river can be dif tidal range.

99

cation in Article 9. However,

cult to locate, particularly on a coast with an extensive

98

Third, Article 9 speci river.

fi

fi

fi

es no limitation on the length of the line across the mouth of the

It may also be noted that the straight line across the mouth of the river shall either

be shown on charts or the coordinates of the ends of the lines must be listed pursuant to Article 16 of the LOSC. Finally, according to one view, Article 9 would appear to apply both to rivers with a single riparian State and to rivers with two riparian States.

100

However, the act of drawing

baselines is necessarily a unilateral act. It is debatable whether a coastal State can unilaterally draw a straight line across the mouth of the river from or to a base point located in another coastal State, without the agreement of that State. In practice, the United States protested the closing line of the Rio de la Plata drawn by Argentina and Uruguay on the ground that Article 13 of the TSC does not apply to rivers whose coasts belong to two or more States.

101

2.7 Ports

Article 11 of the LOSC provides a rule concerning harbour works:

For 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.

fi

Off-shore installations and arti

cial islands shall not be considered as permanent

harbour works.

The

fi

rst sentence of this provision is a replica of Article 8 of the TSC. The second sentence,

which was newly added in Article 11 of the LOSC, makes it clear that harbour works must be attached to the coast in order to be used as base points. In relation to this, it is notable that Article 50 of the LOSC allows archipelagic States to draw closing lines for the delimitation of internal waters in accordance with Articles 9, 10 and 11. It would seem to follow 102

that closing lines may be drawn across the entrances to the port.

Neither the LOSC nor the TSC provides a clear meaning for the term ‘harbour works which form an integral part of the harbour system’. In this regard, the ICJ, in the 2009

Black Sea

98 100

101 102

Ibid

.

case, ruled that these works are ‘generally installations which allow ships to be

99

Symmons, ‘Article 9 ’, pp. 100 –101.

Law of the Sea Excessive Maritime Claims Law of the Sea

Churchill and Lowe, Roach and Smith,

Churchill and Lowe,

, p. 46; UNDOALOS,

Baselines

, p. 28.

, p. 130. See also Symmons, ‘Article 9 ’, pp. 102–103.

, p. 47; UNDOALOS,

Baselines

, p. 34.

74

International Law Governing Jurisdictional Zones harboured, maintained or repaired and which permit or facilitate the embarkation and 103

disembarkation of passengers and the loading or unloading of goods’ .

The admissibility of taking into account the outermost permanent harbour works as part of the coast may be at issue in the context of maritime delimitation. In the 1981 Dubai/

Sharjah Border Arbitration,

104

the harbour works of Dubai were approximately 2 miles in

length and projected approximately 1.5 miles seaward, while the harbour works of Sharjah were approximately 2 miles in length and projected approximately 0.5 mile seaward. The Court of Arbitration ruled that, in light of Article 8 of the TSC and Article 11 of the 1980 Draft Convention on the Law of the Sea, the permanent harbour works of both Dubai and of Sharjah must be treated as a part of the coast for the purpose of drawing the baselines from which the lateral sea boundary between them was constructed.

105

In the 2009 Black Sea case, a question was raised whether the Sulina dyke – which is a 7.5 km-long dyke out to sea situated on the southern headland of the Musura Bay on Romania ’s coast – could be regarded as ‘permanent harbour works which form an integral part of the harbour system’ within the meaning of Article 11 of the LOSC. There was no question relating to the permanent nature of the Sulina dyke. Nonetheless, the Court noted that the functions of a dyke were different from those of a port. According to the Court, the function of the Sulina dyke was to protect shipping destined for the mouth of the Danube and for the ports situated there, and there was no convincing evidence that this dyke served any direct purpose in port activities. Hence the Court ruled that the seaward end of the Sulina dyke was not a proper base point for construction of a provisional equidistance line delimiting the continental shelf and the EEZ.

106

3 ISLANDS

The presence of islands and low-tide elevations affects the location of the outer limits of marine spaces under national jurisdiction. Hence it will be appropriate to address rules concerning islands and low-tide elevations in this chapter. This section examines rules concerning regime of islands provided in Article 121 of the LOSC. Article 121 contains three provisions that present a de

finition

(paragraph 1), a general rule (paragraph 2) and an

exception to that general rule (paragraph 3).

3.1 Nature of the Problem

Article 121(2) of the LOSC provides a general rule concerning the entitlement of an island:

103

ICJ Reports 2009, p. 106, para. 133. The Technical Aspects of the Law of the Sea Working Group of the IHO de

fined

‘harbour works’ as: ‘Permanent man-made structures built along the coast which form an integral

part of the harbour system such as jetties, moles, quays or other port facilities, coastal terminals, wharves, breakwaters, sea walls, etc.’ UNDOALOS, Baselines , p. 56. 104 106

For the text of the award including annexes, see (1993) 91 ILR, pp. 543 –701.

105

Ibid., p. 662.

Maritime Delimitation in the Black Sea (Romania v Ukraine), ICJ Reports 2009, pp. 106–108, paras. 133 –138.

75

Baselines and Related Issues

Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory.

As provided in this provision, an island, if so identi

fied, generates vast marine spaces. It is finition of islands is a

not surprising, therefore, that the question concerning the legal de matter of debate in the law of the sea.

It is said that there are approximately half a million formations of islands in the world, and these formations are extremely diverse. A question thus arises of whether all ‘ islands’ should generate an EEZ as well as a continental shelf, regardless of their differences in size, habitability, economic factors, etc. If the answer were in the af formation could generate a 200-mile EEZ and a continental shelf.

firmative,

107

a tiny marine

On the other hand, this

interpretation would further promote the division of the oceans, and diminish the scope of the high seas and the Area, which is the common heritage of mankind.

108

This view would

also entail the risk of increasing territorial disputes where there are potential natural 109

resources in the maritime area around these islands.

In this regard, at UNCLOS III, a sharp opposition emerged between the group of States (Fiji, New Zealand, Tonga, Western Samoa and Greece) advocating the equal treatment of all islands or island-related formations and the group of States (Romania, Turkey and a group of African States) proposing to limit the maritime zones of islands depending on their conditions. Article 121 was drafted as a compromise between these two opposed groups of States.

110

Owing to the ambiguous language, as will be seen below, this provision raises

considerable dif

ficulty with regard to its interpretation.

fi

3.2 De

nition of an Island

The de

finition of an island is provided in Article 121(1) of the LOSC:

An island is a naturally-formed area of land, surrounded by water, which is above water at high tide.

107 108

The EEZ and the continental shelf will be discussed in Chapter 4, sections 3 and 4. B. Kwiatkowska and H. A. Soons, ‘Entitlement to Maritime Areas of Rocks Which Cannot Sustain Human Habitation or Economic Life of their Own ’ (1990) 21

109

NYIL

, p. 144.

R. Kolb, ‘L’interprétation de l article 121, paragraph 3, de la Convention de Montego Bay sur le droit de la mer. Les “roches qui ne se prêtent pas à l’habitation humaine ou à une vie économique propre . . .”’ (1994) 40

110

AFDI

, pp. 878– 879.

Kwiatkowska and Soons, ‘Entitlement to Maritime Areas’, pp. 140–142; W. van Overbeek, ‘Article 121(3)

fic

LOSC in Mexican State Practice in the Paci

’ (1989) 4

International Journal of Estuarine and Coastal Law fl isch,

pp. 258 –261. For an analysis of discussions on this subject at UNCLOS III, see L. Ca marins attachés à des îles ou roches ’, in M. Forteau and J.-M. Thouvenin (eds.),

de la mer

(Paris, Pedone, 2017), pp. 480– 482.

,

‘Les espaces

Traité de droit international

76 International Law Governing Jurisdictional Zones This provision, which follows Article 10(1) of the TSC, contains four criteria that call for comment. First, an ‘ island’ in the legal sense must constitute an ‘ area of land’ . This criterion contains two requirements: (i) that an insular feature must be attached to the seabed; and (ii) that it must have the nature of terra

firma.

111

In accordance with these requirements,

fl oating formations, such as icebergs, cannot be regarded as islands.

112

criterion with regard to the ‘ area of land ’ in Article 121.

113

There is no size

In fact, the ICJ, in the 2001

Qatar/Bahrain case (Merits), stated: ‘ In accordance with Article 121, paragraph 2, of the

flects

1982 Convention on the Law of the Sea, which re

customary international law,

islands, regardless of their size , in this respect enjoy the same status, and therefore generate the same maritime rights, as other land territory’ . the ICJ in the Nicaragua/Colombia judgment. with regard to the nature of terra

115

114

This view was echoed by

In some cases, opinions may be divided

firma of a marine formation. Concerning the legal status

of Qit ’ at Jaradah – a maritime feature belonging to Bahrain – for instance, Judges Bedjaoui, Ranjeva and Koroma, in the 2001 Qatar/Bahrain case (Merits), took the view that geomorphological characteristics of Qit ’at Jaradah did not make it an island because it was not terra an island.

firma.

116

Nonetheless, the majority opinion considered Qit’ at Jaradah as

117

Second, an ‘ island’ must be a ‘naturally-formed’ creation. This requirement means that the composition of the island must be ‘ natural’, not ‘arti

ficial ; and that the island must be ficial ’

formed without human intervention in its formation process. Consequently, an arti

island and installation, such as a lighthouse, beacon, oil platform, or defence tower, is not an ‘ island’ under Article 121 of the LOSC. It can be argued that lighthouses built on low-tide elevations or permanently submerged seabed formations do not acquire the juridical status 118

of an ‘island ’ .

Unlike islands, arti

ficial islands have no territorial sea of their own, and

cannot be used as a base point measuring the territorial sea. This is clear from Article 60(8) of the LOSC. Furthermore, as the Annex VII Arbitral Tribunal stated in the South China Sea Arbitration (Merits), a low-tide elevation or area of seabed cannot be legally transformed

111 112 113

See Dissenting Opinion of Judges Bedjaoui, Ranjeva and Koroma, ICJ Reports 2001, pp. 209 –210, para. 200. C. Symmons, The Maritime Zones of Islands in International Law (The Hague, Nijhoff, 1979), pp. 21–24. J. L. Hafetz, ‘Fostering Protection of the Marine Environment and Economic Development: Article 121(3) of the Third Law of the Sea Convention ’ (2000) 15 American University International Law Review, pp. 590 –591. See also Symmons, The Maritime Zones, p. 41.

114 115

Emphasis added. ICJ Reports 2001, p. 97, para. 185.

Territorial and Maritime Dispute (Nicaragua v Colombia), Judgment of 19 November 2012, ICJ Reports

flisch,

2012, p. 645, para. 37. See also the Qatar/Bahrain case, ICJ Reports 2001, p. 97, para. 185; Ca

‘Les

espaces marins attachés à des îles ou roches ’, p. 478. In the Judgment of 7 May 1996, the Norwegian Supreme Court held that Abel Island, which is 13.2 square kilometres in area, was too large to be a ‘rock’ within the meaning of Article 121(3); and that the island would be able to support a signi

ficant polar bear

hunt, were such hunting not prohibited for conservation reasons. R. Churchill, ‘Norway: Supreme Court Judgment on Law of the Sea Issues ’ (1996) 11 IJMCL, pp. 576–580 (in particular, p. 579). While the judgment seemed to rely on the size of the island, it also referred to a sort of economic activity, namely, polar bear hunt. 116 117

Dissenting Opinion of Judges Bedjaoui, Ranjeva and Koroma, ICJ Reports 2001, p. 209, para. 199. Judgment, ibid ., p. 99, para. 195.

118

Symmons, The Maritime Zones, pp. 32–34.

77

Baselines and Related Issues into an island through human efforts.

119

On the other hand, there is room for the view that

man-made attempts to preserve the natural, above high-water aspect of an eroding formation may not disqualify its legal status as an island.

120

Third, an ‘ island’ must be ‘surrounded by water’ . Accordingly, if a marine formation is connected by a sandbar to the mainland which dries out at low tide, the formation cannot be regarded as an island in the legal sense. Similarly, if a marine formation is connected by a causeway to the mainland, the formation would seem to lose its insular status.

121

Fourth, an ‘ island’ must be ‘above water at high tide’ . According to this requirement, an island is distinct from low-tide elevations, which are submerged at high tide.

122

However,

the meaning of ‘above water at high tide’ is not uniform in State practice. In borderline cases, the distinction between an island and a low-tide elevation is rather

fine.

3.3 Rocks for the Purposes of Article 121(3) (a) General Considerations With regard to the legal status of islands, the most debatable issue is whether the legal status of islands should be quali

fied by socio-economic factors. In this regard, Article 121(3)

123

of the LOSC stipulates:

Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.

It follows that rocks for the purposes of Article 121(3) only have the territorial sea and the contiguous zone.

124

However, there is no clear de

finition of rocks in the LOSC.

125

In this

regard, it must be noted that the word ‘rock ’ under Article 121(3) is not limited to maritime features composed of solid rock. The geological and geomorphological characteristics of a high-tide feature are not relevant to its classi

119 120

fication pursuant to Article 121(3).

126

Hence

The South China Sea Arbitration Award (Merits), para. 508.

finition of Insular Formations in International Law: Islands field and P. Hocknell (eds.), 1(5) Maritime Briefi ng (International

C. Symmons, ‘Some Problems relating to the De and Low-Tide Elevations’, in C. Scho

Boundaries Research Unit, University of Durham,1995), p. 3; S. Talmon, ‘Article 121 ’, in Prölss, A Commentary, p. 864; S. D. Murphy, ‘International Law Relating to Islands ’ (2017) 386 RCADI, p. 55. 121 122 123 124

Symmons, The Maritime Zones , pp. 41–42. Low-tide elevations will be discussed in section 4 of this chapter. This is a new provision which was not contained in the TSC. Virginia Commentary, vol. 3, p. 338; J. I. Charney, ‘Rocks That Cannot Sustain Human Habitation’ (1999) 93 AJIL, p. 864; J. L. Jesus, ‘Rocks, New-Born Islands, Sea Level Rise and Maritime Space’, in J. A. Frowein, K. Scharioth, I. Winkelmann and R. Wolfrum (eds.), Negotiating for Peace, Liber Amicorum Tono Eitel (Berlin, Springer, 2003), p. 581; Ca

flisch,

‘Les espaces marins attachés à des îles ou roches ’, p. 485. The establishment

of the contiguous zone surrounding rocks may be useful for the purposes of Article 303(2) of the LOSC concerning the protection of archaeological and historical objects found at sea. Ibid. 125

There is no indication as to the size of rocks in the LOSC. No attempts to introduce speci

fic criteria

concerning size, population and location were supported at UNCLOS III. Kwiatkowska and Soons, ‘Entitlement to Maritime Areas ’, pp. 155–159; Kolb, ‘L’interprétation de l article 121, paragraph 3’, p. 904. 126

The South China Sea Arbitration Award (Merits), para. 540.

78 International Law Governing Jurisdictional Zones rocks are regarded as a sub-category of island within Article 121.

127

It must also be noted

that Article 121(3) does not apply where a rock forms part of a baseline from which marine spaces under national jurisdiction, namely the territorial sea, the EEZ and the continental shelf, are measured. It is clear that the objective of Article 121(3) is to prevent excessive claims over the EEZ and continental shelf by restricting the capacity of

‘ rocks’ to

generate these marine

spaces. In this sense, it may be said that the function of Article 121(3) is preventive by nature.

128

In light of the vagueness of the text, however, the interpretation and application of Article 121(3) may vary according to States. An illustrative example concerns Rockall. The United Kingdom established a continental shelf and an EFZ around Rockall in 1974 and 1977, respectively. This action was protested by Ireland, Denmark and Iceland. As a result, the United Kingdom gave up the 200-mile LOSC in 1997.

fishery zone when it acceded to the

129

Another example may be furnished by Okinotorishima. This marine feature, which is part of Japanese territory, is located in the Paci

fic

Ocean, around 1,700 kilometres south of

Tokyo. Okinotorishima comprises two tiny islets. It is beyond doubt that Okinotorishima is not a low-tide elevation, and the Japanese government regards this maritime feature as island. Thus the Japanese government established in 1977 a 200-mile

fishery zone and, in

1996, a 200-mile EEZ around Okinotorishima. In 1989, the Japanese government encased Okinotorishima in a concrete and steel bank with a view to preventing erosion. However, in 2004, the Chinese government expressed the view that Okinotorishima cannot have a 200-mile EEZ because it is a rock. In 2005, Taiwan raised the same question against the legal status of Okinotorishima.

130

Furthermore, in 2009, the Republic of Korea and China

presented their compliments to the UN Secretary-General with regard to the submission made by Japan to the CLCS, and claimed that Okinotorishima, considered as a rock under Article 121(3), is not entitled to any continental shelf extending to or beyond 200 nautical

127

Ibid., para. 481. This view is supported by commentators, including: Kwiatkowska and Soons, ‘Entitlement to Maritime Areas’, p. 151; Kolb, ‘L’interprétation de l ’article 121, paragraph 3 ’, p. 904; Talmon, ‘Article 121 ’, p. 868; M. Gjetnes, ‘The Spratlys: Are They Rocks or Islands?’ (2001) 32 ODIL, p. 193. In the oral proceedings of the Black Sea case, Lowe clearly stated: ‘Rocks are islands; they are a sub-category of “islands ”’ (emphasis original). Presentation by Professor Lowe in the 2009 Black Sea case, Verbatim Record,

CR 2008/20, 4 September 2008, p. 41, para. 11. 128 129

The South China Sea Arbitration Award (Merits), para. 516. D. H. Anderson, ‘British Accession to the UN Convention on the Law of the Sea ’ (1997) 46 ICLQ, p. 778; Churchill and Lowe, Law of the Sea, p. 164; R. Churchill, ‘United Kingdom’s Decision to Defer A ccession to the UN Convention on the Law of the Sea: A Convincing Move?’ (1997) 12 IJMCL p. 114; Prescott and Scho

field, The Maritime Political Boundaries, pp. 374

–376; Foreign and Commonwealth Affairs, Rockall,

31 July 1997, Column 482, available at: https://publications.parliament.uk/pa/cm199798/cmhansrd/ vo970731/text/70731w17.htm. 130

Yann-huei Song, ‘Okinotorishima: A “Rock ” or an “Island”? Recent Maritime Boundary Controversy between Japan and Taiwan/China ’, in Seoung-Yong Hong and J. M. Van Dyke (eds.), Maritime Boundary Disputes, Settlement Process, and the Law of the Sea (Leiden and Boston, Brill/Nijhoff, 2009), p. 146 and pp. 151– 154. See also by the same author, ‘The Application of Article 121 of the Law of the Sea Convention to the Selected Geographical Features Situated in the Paci International Law, pp. 668–674 and pp. 691–694.

fic Ocean

’ (2010) 9 Chinese Journal of

79 Baselines and Related Issues miles.

131

As shown in this example, the legal status of a maritime feature may raise

particular sensitivities for the claim over the continental shelf beyond 200 nautical miles measured from a maritime feature.

132

(b) Interpretation of Article 121(3) of the LOSC An international court or tribunal has only rarely determined the legal status of maritime features by applying Article 121(3).

133

In the ICJ jurisprudence, three cases are especially

relevant. The

first case is the 1993 Greenland/Jan Mayen case. Jan Mayen appertains to Norway.

Its total area is 380 square kilometres (or 148 square miles); it is inhabited by only some twenty-

five technical and other staff of the island s meteorological station, a LORAN (long’

range radio navigation) station and the coastal radio station. Bulk supplies are brought in by ship and uploaded in Hvalrossbukta (Walrus Bay) to support human life there.

134

The

ICJ, in its judgment of 1993, de facto treated Jan Mayen as a fully entitled island, even though the Court did not directly examine the legal status of Jan Mayen for the purposes of Article 121(3).

135

Second, in the 2012 Nicaragua/Colombia case, the legal status of Quitasueño was at issue. Quitasueño is a minuscule feature, barely 1 square metre in area, and is above water at high tide only by some 0.7 metres.

136

In this regard, the ICJ held:

Quitasueño is a rock incapable of sustaining human habitation or an economic life of its own 137

and thus falls within the rule stated in Article 121, paragraph 3, of UNCLOS.

131

Republic of Korea: www.un.org/Depts/los/clcs_new/submissions_ Republic of China: www.un.org/Depts/los/clcs_new/submissions_

132

files/jpn08/kor_27feb09.pdf; the People s fi les/jpn08/chn_6feb09_e.pdf. ’

In its recommendation adopted in 2012, the CLCS stated that it would not be in a position to take action to make recommendations on this region until such time as the matters involving Okinotorishima have been resolved. CLCS, Summary of Recommendations of the Commission on the Limits of the Continental Shelf in

regard to the Submission made by Japan on 12 November 2008, p. 5, para. 20, available at: www.un.org/Depts/los/clcs_new/submissions_

fi les/jpn08/com_sumrec_jpn_fin.pdf. On the other hand, the

CLCS basically agreed with the delineation of the outer limits of the continental shelf of Japan beyond 200 nautical miles in the Shikoku Basin region, north of Okinotorishima. Ibid., pp. 31– 33, paras. 200–214. For an analysis of the recommendation by the CLCS, see Michael Sheng-ti Gau, ‘Recent Decisions by the Commission on the Limits of the Continental Shelf on Japan’s Submission for Outer Continental Shelf’ (2012) 11 CJIL, pp. 487 –504. 133

Further, Y. Tanaka, ‘Re

flections on the Interpretation and Application of Article 121(3) in the South China

Sea Arbitration (Merits)’ (2017) 47 ODIL, pp. 374 –376. 134

Counter-Memorial Submitted by the Government of the Kingdom of Norway, 11 May 1990, pp. 23 –28, paras. 78 –101.

135

Case concerning Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v Norway),

fl isch,

ICJ Reports 1993, p. 78–81, paras. 89 –92. See also Ca

‘Les espaces marins attachés à des îles ou

roches ’, p. 487. The status of Jan Mayen as a fully entitled island was also supported by the 1981 Conciliation Commission on the Continental Shelf Area between Iceland and Jan Mayen. ‘Report and Recommendations to the Governments of Iceland and Norway of the Conciliation Commission on the Continental Shelf Area Between Iceland and Jan Mayen ’ (1981) 20 ILM, pp. 803– 804. 136

Territorial and Maritime Dispute (Nicaragua v Colombia), Judgment of 19 November 2012, ICJ Reports 2012, pp. 640– 641, para. 24; p. 645, para. 37; and p. 699, para. 202.

137

Ibid. , p. 713, para. 238.

80 International Law Governing Jurisdictional Zones However, it must be noted that in the Nicaragua/Colombia case, the ICJ decided the legal status of Quitasueño on the basis of the statements of the parties.

138

Third, in the 2018 Costa Rica/Nicaragua case, the Parties were divided with regard to the placement of base points on the Corn Islands. Great Corn Island has an area of 9.6 square kilometres and Little Corn Island has an area of 3 square kilometres. The total population of Corn Islands is approximately 7,400 inhabitants. The ICJ noted that the Corn Islands have a signi

fi cant number of inhabitants and sustain economic life. It thus

held that Corn Islands:

amply satisfy the requirements set forth in Article 121 of UNCLOS for an island to be entitled to 139

generate an exclusive economic zone and the continental shelf.

Yet, the Court did not undertake a thorough examination of the interpretation of Article 121(3). The above survey suggests that the ICJ has been wary about clarifying the interpretation of Article 121(3). In the South China Sea Arbitration (Merits), however, the Annex VII Arbitral Tribunal undertook, for the

first time in the jurisprudence, a detailed examination

of this provision. Thus this Tribunal’ s view provides an important insight into this subject. In its arbitration award on the merits, the Tribunal focused on qualitative and temporal requirements. (i)

Qualitative requirements: Article 121(3) contains two qualitative requirements for a

maritime feature to be a fully entitled island: capacity to sustain ‘ human habitation’ and 140

‘ economic life of their own’. The capacity of a feature must be objectively determined.

In

this connection, three issues arise. The

first issue is whether the requirement of

‘human habitation’ and that of ‘an economic

life of its own’ must be met for a feature to be entitled to an EEZ and continental shelf at the same time (cumulative interpretation) or whether one will suf

fice

(disjunctive interpret-

ation). Some take the cumulative interpretation, arguing that the two requirements can be 141

considered as a single concept.

However, the Annex VII Arbitral Tribunal took the

disjunctive interpretation. In the words of the Annex VII Arbitral Tribunal, ‘ the ability to

fice to entitle a

sustain either human habitation or an economic life of its own would suf 142

high-tide feature to an exclusive economic zone and continental shelf’ .

At the same time,

it added that as a practical matter, ‘a maritime feature will ordinarily only possess an

138

fl

Ibid., p. 693, para. 183. See also Y. Tanaka, ‘Re ections on the Territorial and Maritime Dispute between Nicaragua and Colombia before the International Court of Justice ’ (2013) 26 LJIL, p. 911.

139

fi

Maritime Delimitation in the Caribbean Sea and the Paci c Ocean (Costa Rica v Nicaragua), Judgment, ICJ Reports 2018 (not yet reported), para. 140.

140 141

The South China Sea Arbitration Award (Merits), para. 545. Kolb, ‘L’interprétation de l ’article 121, paragraph 3’, p. 906 ; J. M. Van Dyke, J. R. Morgan and J. Gurish, ‘The Exclusive Economic Zone of the Northwestern Hawaiian Islands: When Do Uninhabited Islands Generate an EEZ? ’ (1988) 25 San Diego Law Review , p. 437.

142

The South China Sea Arbitration Award (Merits), para. 544. See also para. 496.

81 Baselines and Related Issues economic life of its own if it is also inhabited by a stable human community ’; the two requirements will ‘ in most instances go hand in hand’.

143

and that

144

The second issue pertains to the ‘ natural formation’ test. In this regard, the Arbitral Tribunal stated: ‘The status of a feature must be assessed on the basis of its natural condition.’

145

However, natural condition of a maritime feature may change with the

passage of time. An issue that arises in this context is whether the capacity of a maritime feature to sustain human habitation or economic life of its own may change over time. The Tribunal decided the legal status of high-tide features in the Spratly Islands on the basis of historic evidence. The Tribunal ’ s interpretation is essentially static in the sense that the capacity of a maritime feature is

fixed at a certain moment in the past. However, historical

evidence of human habitation or economic life of its own can only serve as evidence of capacity in the past, and that past capacity must continue to exist for a maritime feature to be a fully entitled island.

146

If the past capacity has been lost, the feature can no longer be

regarded as a fully entitled island.

147

The logic of this suggests the possibility that a

maritime feature may subsequently obtain natural conditions to sustain human habitation or economic life of its own.

148

As the Tribunal accepted, ‘ Article 121(3) is concerned with

the capacity of a maritime feature to sustain human habitation or an economic life of its own, not with whether the feature is presently, or has been, inhabited or home to economic life ’. dif

149

As capacity is a generic term, its content evolves over time.

150

Thus it appears

ficult to preclude the possibility that the legal status of a maritime feature may change

over time.

151

The third issue concerns the interpretation of the requirement of ‘ economic life of their own ’. In this regard, the Tribunal speci

fied two standards. The first standard concerns the

feature-orientated nature of economic activity. In the words of the Tribunal, ‘ to constitute the economic life of the feature, economic activity must be oriented around the feature itself and not be focused solely on the surrounding territorial sea or entirely dependent on

143 146 147

144

Ibid., para. 544.

Ibid., para. 543.

145

Ibid., para. 508.

Kwiatkowska and Soons, ‘Entitlement to Maritime Areas’, p. 162. J. I. Charney, ‘Rocks That Cannot Sustain Human Habitation ’ (1999) 93 AJIL, p. 867. See also Choo-Ho Park, ‘The Changeable Legal Status of Islands and “Non-Islands” in the Law of the Sea: Some Instances in the

fi c Region , in D. D. Caron and H. N. Scheiber (eds.), Bringing New Law to Ocean Waters (Leiden,

Asia-Paci

’

Nijhoff, 2004), p. 484 and pp. 486 –487. 148 149 150

See also Kwiatkowska and Soons, ‘Entitlement to Maritime Areas ’, p. 162. The South China Sea Arbitration Award (Merits), para. 545. According to Judge Higgins, a ‘generic term’ is ‘a known legal term, whose content the Parties expected would change through time ’. Declaration of Judge Higgins in the Kasikili/Sedudu Island (Botswana v Namibia), ICJ Reports 1999, p. 1113, para. 2. See also, Report of the International Law Commission, Fifty-

ficial Records Sixty- first Session Supplement No. 10 (A/61/10) (2006), firmed by the international courts and tribunals. See Y. Tanaka, Refl ections on Time Elements in the International Law of the eighth Session, General Assembly, Of

pp. 415 –416, para. (23). The evolutionary nature of a generic term has been af ‘

Environment ’ (2013) 73 ZaöRV , pp. 150–154. 151

Some commentators accept the variability of the legal status of maritime features with the passage of time. See for instance, Charney, ‘Rocks That Cannot Sustain Human Habitation’, pp. 867– 868; Gjetnes, ‘The Spratlys ’ (2001) 32 ODIL, p. 199; S. D. Murphy, ‘International Law Relating to Islands ’ (2017) 386 RCADI , pp. 74 –75 and pp. 208–219; Choo-Ho Park, ‘The Changeable Legal Status of Islands’, p. 484.

82 International Law Governing Jurisdictional Zones external resources ’.

152

The second standard relates to the linkage between a stable local

community and economic activity. According to the Tribunal, ‘ extractive economic activity, without the presence of a stable local community, necessarily falls short of constituting the economic life of the feature ’.

153

An issue that arises in this context is whether external

resources can be introduced to improve economic life in a maritime feature. In this regard, the Tribunal took this view:

[T]he requirement in Article 121(3) that the feature itself sustain human habitation or economic life clearly excludes a dependence on external supply. A feature that is only capable of sustaining habitation through the continued delivery of supplies from outside does not meet the requirements of Article 121(3). Nor does economic activity that remains entirely dependent on external resources or that is devoted to using a feature as an object for extractive activities, 154

without the involvement of a local population, constitute a feature’s ‘own’ economic life Where outside support is so signi

...

ficant that it constitutes a necessary condition for the

inhabitation of a feature, however, it is no longer the feature itself that sustains human habitation.

155

However, the Tribunal offered no further precision with regard to the degree of ‘signi dependence. Accordingly, one will be forced to decide the degree of signi

ficant

’

ficant dependence

on a case-by-case basis. (ii)

Temporal requirements: The temporal requirements are crucial in the interpretation of

‘ human habitation’ provided in Article 121(3). In this regard, two points must be noted. The

first is the

‘non-transient character’ of the inhabitation.

156

In the words of the Tribunal:

The term ‘human habitation’ should be understood to involve the inhabitation of the feature by a

stable

remain.

community of people for whom the feature constitutes a home and on which they can

157

fil the requirement of human habitation, a

The adjective ‘ stable’ seems to signify that to ful

community of people must exist in a maritime feature for a certain period of time.

158

The

dictum of the Tribunal leads to an important consequence of precluding temporary military personnel,

152 154 157 158

fishermen, lighthouse keepers, etc.

159

South China Sea Arbitration Award (Merits), para. 623. See also para. 503. Ibid., para. 623. Ibid., para. 547. Ibid., para. 550. The South China Sea Arbitration Award (Merits), para. 542. Emphasis added. Ibid. 153

The

155

156

The existence of a stable community of people was already mentioned by Gidel as a factor to be a fully entitled island. G. Gidel,

Le droit international public de la mer, p. 684. This view was subsequently

supported by other commentators. For instance, J. M. Van Dyke and R. A. Brooks argued: ‘The key factor must be whether the island can in fact support a stable population. ’ J. M. Van Dyke and R. A. Brooks, ‘Uninhabited Islands: Their Impact on the Ownership of the Oceans’ Resources’ (1983) 12

ODIL, p. 286. See

also Gjetnes, ‘The Spratlys’, p. 196; Kolb, ‘L ’interprétation de l ’article 121, paragraph 3’, p. 906. 159

This view is supported by Gjetnes, ‘The Spratlys’, p. 197.

83 Baselines and Related Issues Second, for the survivable of people, some essential needs must exist in a maritime feature. In this regard, the Tribunal considered that the following factors contribute to the natural capacity of a feature: the presence of water, food and shelter in suf

ficient quantities

to enable a group of persons to live on the feature for an indeterminate period of time.

160

As

shown by the phrase ‘ an indeterminate period of time’, the Tribunal again stressed a temporal requirement concerning human habitation. On the basis of the interpretation outlined above, the Annex VII Arbitral Tribunal, in the

South China Sea

Arbitration (Merits), determined the legal status of multiple maritime

features in the South China Sea. Speci

fically, the Arbitral Tribunal applied a dual approach

to determine legal status of maritime features. First, where a maritime feature lacks essential needs for the survival of human being, such as fresh water, vegetation or living space, that feature is regarded as a rock under Article 121(3) since they obviously cannot sustain human habitation in its naturally formed state. Second, where the physical characteristics of the features do not de

finitively indicate the capacity of the features, the legal historical

status of the features are determined on the basis of historical evidence, i.e. ‘ human habitation ’ and ‘

historical

economic life of their own’ . According to the Arbitral

Tribunal ’s approach, temporal elements perform a crucial role in determining the legal status of a contentious maritime feature. Such elements are:

• the ‘ non-transient character’ of the human inhabitation, • the existence of factors to support a group of persons to live on a maritime feature for an ‘ indeterminate period of time’ , • the ‘ not one-off or short-lived ’ support and provision, • provision which is necessary to keep humans alive and healthy over ‘ a continuous period

of time’, • ‘ historical evidence’ of natural conditions on maritime features, • ‘ historical’ human habitation, and • ‘ historical’ economic life of their own.

In conclusion, the Tribunal held that none of the high-tide features in the Spratly Islands, including Itu Aba,

161

is capable of sustaining human habitation or an economic life of their 162

own. As a consequence, such features have no EEZ or continental shelf.

(c) Commentary The Arbitral Tribunal ’s interpretation of Article 121(3) relies on two elements. The element concerns the

raison d ’être

of the EEZ. Here the Arbitral Tribunal stressed the

interlinkage between the EEZ and ‘the bene

160 161

The

first

fit of the local population . ’

163

In the view of

South China Sea Arbitration Award (Merits), para. 546.

Itu Aba, which is known as ‘Taiping Dao’ in China and ‘Ligaw’ in the Philippines, is the largest high-tide feature in the Spratly Islands, measuring approximately 1.4 kilometres in length and almost 400 metres at its widest point (0.43 square kilometres). There are multiple buildings, a lighthouse, a runway, and port facilities on Itu Aba.

162

Ibid., para. 626.

Ibid., para. 401. Ibid., para. 513. See also para. 515.

163

84

International Law Governing Jurisdictional Zones the

Tribunal,

‘ without

human

habitation

(or

an

economic

life),

the

link

between

maritime feature and the people of the coastal State becomes increasingly slight’ . is of particular interest to note that the Tribunal focused on the bene

164

a It

fit of population, not

the interest of individual States, as the raison d ’être of the EEZ. The second element pertains to the safeguard of the common heritage of mankind. According to the Arbitral Tribunal, Article 121(3) functions as safeguard of the common heritage of mankind.

fi

Given that the principle of the common heritage of mankind aims to protect the bene t of mankind as a whole,

165

also focuses on this bene

it can be said that the Tribunal ’ s interpretation of Article 121(3)

fit.

The validity of the Tribunal ’s interpretation of Article 121(3) must be considered in a broad context of development of the law of the sea after World War II. This period can be essentially characterised by the opposition between unilateralism and universalism in the law. On the one hand, unilateral extension of coastal State jurisdiction towards the high seas to control natural resources has been a driving force behind the development of the law of the sea following World War II. This movement promotes unilateralism in the oceans, focusing on the interests of individual States. On the other hand, as with international law in general, the protection of common interests of the international community as a whole or community interests is increasingly important in the law of the sea, and is linked to

flect

universalism in the oceans. The Tribunal ’s interpretation of Article 121(3) appears to re

the universalism in the law of the sea. Arguably, this interpretation will serve for the development of the law of the sea towards universalism. In accordance with the Tribunal’ s interpretation, however, many maritime features would fall within the scope of Article 121(3). Whether or not that interpretation would be supported by subsequent State and judicial practice needs careful consideration.

3.4 Customary Law Nature of Article 121

The ICJ, in the 2001 Qatar/Bahrain case (Merits), pronounced that Article 121(2) of the LOSC re

flects customary law.

166

The Conciliation Commission in the 1981 Jan Mayen case

also considered that Article 121 of the 1980 Draft Convention on the Law of the Sea (Informal Text) re

flected the present status of international law. In this connection, it must

be noted that the law applicable to this case was limited to paragraphs 1 and 2 of Article 121.

167

Thus there appears to be a general sense that the Conciliation Commission regarded

only these paragraphs as customary law. In the Nicaragua/Colombia case, the ICJ stressed the integrity of the three provisions of Article 121. According to the Court, by denying an EEZ and a continental shelf to rocks which cannot sustain human habitation or economic life of their own, Article 121(3) provides an essential link between the long-established principle that islands generate the same maritime rights as other land territory and the more extensive maritime entitlements

164 167

Ibid., para. 517.

165

LOSC Article 140.

Report of the Conciliation Commission , p. 804.

166

ICJ Reports 2001, p. 97, para. 185.

85

Baselines and Related Issues recognised in the LOSC and which the Court has found to have become part of customary international law. The Court thus ruled:

[T]he legal régime of islands set out in UNCLOS Article 121 forms an indivisible régime, all of which (as Colombia and Nicaragua recognise) has the status of customary 168

international law.

flects customary international law, State practice is highly diverse in the interpretation and application of this provision. Hence, as discussed earlier, the clarifiIf Article 121(3) re

169

cation of the interpretation of this provision is of critical importance.

3.5 Reefs

Before UNCLOS I, little attention was given to a rule governing coral islands or islands fringed with reefs. While serious attention was, for the provision concerning reefs was contained in the TSC.

first time, given at UNCLOS I, no

170

However, the LOSC contains a

special rule relating to islands situated on atolls or islands having fringing reefs. There is no de

finition of the term

‘atoll ’ in the LOSC. In geographical terms, an atoll is a

ring-shaped reef with or without an island situated on it, surrounded by the open sea that encloses or nearly encloses a lagoon.

171

The lagoon is rich in marine life and the economic

well-being of the indigenous people depends basically on the lagoon

fishery.

172

The term

‘ reef’ refers to a mass of rock or coral which either reaches close to the sea surface or is

exposed at low tide. That part of a reef which is above water at low tide but submerged at high tide is called drying reef. Thus, drying reefs belong to the category of low-tide elevations.

173

The reef not only forms the lagoon that sustains the indigenous population

but also protects the islands from the destructive force of waves and ocean swells. Owing to the intimate connection between reefs, lagoons and islands, it is desirable that the waters between reefs and islands should be internal waters. Normally lagoon waters are dif

168

ficult to access and are unsuitable for navigation. Accordingly, it would be difficult to ICJ Reports 2012, p. 674, para. 139. In practice, however, it is uncommon for coastal States to incorporate Article 121(3) in their national legislation. It would appear that the only example of incorporation of Article 121(3) into national legislation is the 1986 EEZ Federal Act of Mexico. Article 51 of the Federal Act (1986), 25 ILM p. 896. Nonetheless, Mexico gave full effect to many minuscule islets generating its EEZ. Van Overbeek, ‘Article 121(3) LOSC’, p. 262; Kwiatkowska and Soons, ‘Entitlement to Maritime Areas ’, p. 176; Kolb, ‘L’interprétation de l ’article 121, paragraph 3 ’, pp. 896–897.

169 170

Tanaka, ‘Re

flections on the Interpretation and Application of Article 121(3)

’ 373 –374.

I. Kawaley, ‘Delimitation of Islands Fringed with Reefs: Article 6 of the 1982 Law of the Sea Convention (1992) 41 ICLQ, pp. 154–156.

171 172

UNDOALOS, Baselines, p. 50. R. D. Hodgson, ‘Islands: Normal and Special Circumstances’, in Law of the Sea: the Emerging Regime of the

–

Oceans, Proceedings of Law of the Sea Institute Eighth Annual Conference, June 18 21, 1973 (Cambridge, MA, Ballinger, 1974), pp. 165–166. 173

UNDOALOS, Baselines, p. 60; H. W. Jayewardene, The Regime of Islands in International Law (Dordrecht, Nijhoff, 1990), p. 95.

86 International Law Governing Jurisdictional Zones apply a right of innocent passage to lagoon waters in practice.

174

In this regard, Article 6 of

the LOSC provides:

In the case of islands situated on atolls or of islands having fringing reefs, the baseline for measuring the breadth of the territorial sea is the seaward low-water line of the reef, as shown by the appropriate symbol on charts of

fi

cially recognized by the coastal State.

This provision calls for three comments with regard to its interpretation. First, Article 6 refers to ‘islands situated on atolls’ , not atolls alone. It would follow that unless there is an island, namely terra

firma,

on the atoll, the atoll cannot generate a

175

territorial sea.

Second, it appears that this provision does not apply to permanently submerged reef features.

176

In the 1999 Eritrea/Yemen Arbitration (Second Phase), Eritrea claimed that a

reef called the ‘Negileh Rock ’ could be used as part of a straight baseline system. Yemen objected to the use of the reef as part of the baseline because the reef is not above water at any state of the tide. The Arbitral Tribunal did not admit the claim of Eritrea on the basis of 177

Articles 6 and 7(4) of the LOSC.

Third, the meaning of ‘ fringing reef’ is open to discussion. Some argue that the ‘ fringing reef ’ covers barrier reefs which are walls of coral rocks generally separated from the lowwater line of the island by a deep channel, usually a lagoon.

178

According to this view,

Article 6 of the LOSC can be applied to any reefs without distinction. However, other writers are more cautious about taking such a broad interpretation.

179

Considering that

there is no clear limit of the distance between a fringing reef which is to be used as a baseline and an island, the broad interpretation would seem to encourage an excessive claim for baselines. Also, Article 6 contains no rule concerning the situation where the fringing reef is incomplete and a gap exists in sections of the reef. While, in this case, it appears to be reasonable to draw a straight line across the gap, this may be questioned where the gap is extensive.

180

Where the reef fringes only a part of the island, the

question will arise as to how it is possible to link the island to the reef in order to close internal waters.

181

Moreover, the meaning of the term ‘seaward ’ low-water line is not

without ambiguity. One wonders whether this term excludes reefs on the side of a lagoon as opposed to the open sea.

174 175

182

P. B. Beazley, ‘Reefs and the 1982 Convention on the Law of the Sea ’ (1991) 6 IJECL, pp. 303–304. L. L. Herman, ‘The Modern Concept of the Off-Lying Archipelago in International Law’ (1985) 23 CYIL, p. 191.

176 177 178 179 181

Kawaley, ‘Delimitation of Islands ’, p. 157; UNDOALOS, Baselines, p. 10. (2001) 40 ILM, p. 1007, paras. 143–145. Jayewardene, The Regime of Islands, p. 99; UNDOALOS, Baselines, p. 10; Beazley, ‘Reefs’, p. 297. Kawaley, ‘Delimitation of Islands ’, p. 156; Churchill and Lowe, Law of the Sea, p. 52. UNDOALOS, Baselines, p. 12.

182

Kawaley, ‘Delimitation of Islands ’, p. 157.

180

Ibid.

87 Baselines and Related Issues

4 LOW-TIDE ELEVATIONS

4.1 Identifi cation of Low-Tide Elevations Article 13(1) of the LOSC de

fines low-tide elevations as follows:

A low-tide elevation is a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide.

This provision further provides: ‘ Where a low-tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island, the low-water line on that elevation may be used as the baseline for measuring the breadth of the territorial sea ’. Where a low-tide elevation is wholly situated outside the territorial sea, however, it has no territorial sea of its own (see Figure 2.3). 13 re

flects customary international law.

184

183

The ICJ has held that Article

Considering that low-tide elevations may have

an impact on identifying the outer limits of marine spaces under national jurisdiction, such elevations have practical importance for the coastal State. In relation to this, a question that may arise concerns the identi

fication

of low-tide

elevations. As the legal status of marine features may be changeable depending on the tidal datum in borderline cases, the selection of tidal datum is of central importance. However, no tidal datum was given in Article 11 of the TSC and Article 13 of the LOSC.

185

In the

United States v Alaska case of 1997, the Special Master’s Report indicated that ‘ high tide’ was understood as ‘ mean high water ’ according to well-established United States practice. The Supreme Court of the United States would seem to be supportive of this view.

186

If the

mean high tide is a well-established standard in the United States, this does not mean that it is an internationally accepted standard, however. Despite attempts at international standardisation of the tidal datum, currently there is no uniformity in State practice in this matter. The situation is more complicated because 187

States have used more than one datum along their coasts.

It seems, therefore, that there

are no customary rules concerning the use of tidal datum. It is also inconceivable that there are ‘general principles of law recognised by civilized nations’ on this issue. Thus, a dispute can be raised where the States concerned use different tidal datums, and the legal

183 184

Article 13(2). The Qatar/Bahrain case, ICJ Reports 2001, p. 100, para. 201; the Nicaragua/Colombia case, ICJ Reports 2012, p. 693, para. 182.

185

fi

The United Kingdom’s Court of Appeal, in the 1967 Post Of ce v Estuary Radio Ltd case, had already pointed to the problem. However, that Court refrained from entering into this issue since the Court was not obliged to and it was better that it should not. J. T. Edgerley (ed.), The All England Law Reports 1967, vol. 3 (London, Butterworths, 1968), p. 685.

186

Report of the Special Master, J. Keith Mann, March 1996, No. 84, Original, the Supreme Court of the United States, pp. 234 –236; 521 United States Reports, Cases Adjudged in the Supreme Court at October Term 1996 (Washington DC, 2000), pp. 30 –32.

187

finition of Maritime Limits and fing (Durham, International Boundaries Research Unit), p. 8.

Nuno Sérgio Marques Antunes, ‘The Importance of the Tidal Datum in the De Boundaries’ (2000) 2 Maritime Brie

88

International Law Governing Jurisdictional Zones

LTE 3 T

LTE 1

LTE 2 T LTE: Low-tide elevation

Baseline

T: Breadth of the territorial sea

Figure 2.3 Low-tide elevations (Article 13)

status of a marine feature differs depending on the datum. In this regard, three cases call for particular attention.

4.2 Case Law Concerning Low-Tide Elevations The

first

case that needs to be examined is the 1977

Anglo-French Continental Shelf

Arbitration. In this case, a dispute was raised between the United Kingdom and France with regard to the use of Eddystone Rocks as a base point in the delimitation of the English Channel. The United Kingdom contended that Eddystone Rocks were to be regarded as islands and should accordingly be used as a base point for determining a median line in the English Channel west of the Channel Islands. Counsel for the United Kingdom argued that the Eddystone Rocks were only totally covered at high-water equinoctial springs, 188

namely the highest tide in the year;

and that they were uncovered at mean high-

finition

water springs, which was the required de Territorial

Waters

international

Order

practice.

in

Council

Concerning

of

tidal

1964, datum,

of an island in the United Kingdom

and the

was

surely

United

also

in

Kingdom

af

accord

with

firmed

that,

whether under customary law or under Article 10 of the TSC, the relevant high-water line was the line of mean high-water spring tides. In the view of the United Kingdom, the mean high-water spring tides was the only precise one, and the use of equinoctial high tide was not acceptable as suf

ficiently

precise in this context. According to the

United Kingdom, the height of the natural rock at the base of the stump of the old Smeanton lighthouse was approximately two feet above mean high-water spring tide

188

Technically speaking, equinoctial spring tide means those tides occurring near the equinoxes when the full or new moon and the sun have little or low declination and spring tides of greater range than the average occur, particularly if the moon is also nearly in perigee. IHO,

Hydrographic Dictionary,

p. 248.

89 Baselines and Related Issues and 0.2 feet above the highest astronomical tide.

189

Hence the United Kingdom alleged

that Eddystone Rocks were not to be ranked as a low-tide elevation.

190

On the other hand, the French government contested the use of the Eddystone Rocks as a base point because it was not an island but a low-tide elevation.

191

France argued that the

British concept of ‘ high-water’ was highly questionable and a large number of States, including France, took it as meaning the limit of the highest tides. France also claimed that, as soon as a reef did not remain uncovered continuously throughout the year, it had to be ranked as a low-tide elevation, not as an island.

192

The Court of Arbitration made it clear that the question to be decided was not the legal status of Eddystone Rocks as an island but its relevance in the delimitation of the median line in the Channel. It then held that France had previously accepted the relevance of Eddystone Rocks as a base point for the United Kingdom ’s

fishery limits under the 1964 -

European Fisheries Convention as well as in the negotiations of 1971 regarding the continental shelf. For this reason, the Court of Arbitration accepted the use of Eddystone Rocks as a base point on the basis of estoppel.

193

It may be said that the Court of Arbitration

took a pragmatic approach leaving the status of Eddystone Rocks unresolved. A second instance relating to low-tide elevations is the 2001

Qatar/Bahrain

case

(Merits). In this case, Qatar and Bahrain disputed whether Qit ’at Jaradah, a maritime feature situated northeast of Fasht al Azm, was

an island or a low-tide

elevation.

According to Bahrain, there were strong indications that Qit ’at Jaradah was an island that remained dry at high tide. By referring to a number of eyewitness reports, Bahrain asserted that it was evident that part of its sandbank had not been covered by water for some time.

194

According to the data submitted by Bahrain, at high tide, its length and

breadth were about 12 by 4 metres, and its altitude was approximately 0.4 metres.

195

However, Qatar argued that Qit’ at Jaradah was always indicated on nautical charts as a low-tide elevation. Qatar also insisted that, even if there were periods when it was not completely submerged at high tide, its physical status was constantly changing and thus it should be considered as no more than a shoal.

196

Having carefully analysed the evidence submitted by the Parties and the conclusions of experts, the ICJ held that Qit ’ at Jaradah was an island which should be considered for the determination of the equidistance line.

197

Yet the reason why Qit’ at Jaradah could be

regarded an island, not a low-tide elevation, remains obscure.

189

Highest astronomical tide means the highest level of water that can be predicted to be found under any combination of astronomical factors, considering average meteorological conditions. Nuno Sérgio Marques Antunes, ‘Tidal Datum’, p. 28. See also IHO,

190 191 193 196 197

Hydrographic Dictionary,

p. 104.

Anglo-French Continental Shelf case, 18 RIAA, pp. 66–70, paras. 122–130. 192 Ibid., p. 72, para. 138. Ibid., p. 67, para. 125. See also p. 70, para. 130. 194 Ibid., pp. 72 –74, paras. 139 –144. ICJ Reports 2001, p. 98, para. 192. The

195

Ibid.,

p. 99, para. 197.

Ibid., p. 99, para. 193. Ibid., p. 99, para. 195. Three Judges dissented with the majority opinion concerning the legal status of Qit’at Jaradah. Dissenting Opinion of Judges Bedjaoui, Ranjeva and Koroma,

ibid., pp. 207–208, para. 195. For the

same reasons, Judge Vereshchetin also concluded that Qit ’at Jaradah was a low-tide elevation. Declaration of Judge Vereshchetin,

ibid.,

pp. 220– 221, para. 13.

90 International Law Governing Jurisdictional Zones A third case is the 2016 South China Sea Arbitration (Merits). In this case, a particular issue was raised with regard to evidence on the legal status of maritime features. According to the Annex VII Arbitral Tribunal, ‘ [a]s a general matter, the most accurate determination of whether a particular feature is or is not above water at high tide would be based on a combination of methods, including potentially direct, in-person observation covering an extended period of time across a range of weather and tidal conditions ’.

198

However, many

of the features in the South China Sea had been subjected to substantial human modi

fica-

tion as large islands with installations and airstrips had been constructed on top of the coral reefs. In such circumstances, the Tribunal considered that the status of a feature must be ascertained on the basis of its earlier, natural condition, prior to the onset of signi human modi

ficant

fication. The Tribunal therefore determined the legal status of maritime fea-

tures on the basis of ‘ the best available evidence of the previous status of what are now heavily modi

fied coral reefs . ’

199

Speci

fically the Tribunal placed much weight on historical

records when deciding the legal status of maritime features as above/below high tide.

200

It

then concluded that Hughes Reef, Gaven Reef (South), Subi Reef, Mischief Reef and Second Thomas Shoal are regarded as low-tide elevations.

201

5 CONCLUSIONS On the basis of the matters considered in this chapter, six points should be highlighted. (i) The rules governing straight baselines are abstract and lack precision in some respects. In particular, the following elements seem to create challenges to the practical application of these rules: • lack of objective criteria which may identify deeply indented coasts, • lack of an objective test to identify the close linkage between the land domain and the sea

area lying within the straight baselines, • lack of any limit to the maximum length of straight baselines, • lack of an objective test to identify the existence of a ‘ fringe of islands’, • vagueness of the concept of the coast’ s ‘ immediate vicinity ’, and • vagueness of the concept of ‘economic interests peculiar to the region concerned ’.

(ii) Owing to the vagueness of rules concerning straight baselines, the coastal State has an extensive discretion in drawing such baselines. In reality, the coastal States are likely to apply the straight baseline system in an excessive manner. It appears that currently the method of straight baselines is used by coastal States as a tool to expand the spatial ambit of national jurisdiction in the oceans. (iii) Currently Article 10 of the LOSC can be regarded as general rules governing juridical bays. It is signi

198

ficant that the rules governing juridical bays specify the maximum length of

The South China Sea Arbitration Award (Merits), para. 321. In this regard, the ICJ, in the Nicaragua/

fi

Colombia case, ruled that: The Court ‘has to make sure that it has before it evidence suf cient to satisfy that a maritime feature meets the test of being above water at high tide ’. Territorial and Maritime Dispute (Nicaragua v Colombia), ICJ Reports 2012, p. 644, para. 36. 199 200

Emphasis original. The South China Sea Arbitration Award (Merits), para. 306.

Ibid., paras. 327 –332.

201

Ibid., paras. 382–383 and 1203 B(3)(4)(5).

91 Baselines and Related Issues the closing line (24 nautical miles) and the geometrical test (semi-circle test). However, there are

no well-established

general

rules

governing

historic bays. Accordingly,

the

validity of the claim to a historic bay is to be examined on a case-by-case basis. (iv) It is argued that rocks can be considered as a sub-category of islands. Unlike islands, however, rocks which cannot sustain human habitation or economic life of their own have no EEZ or continental shelf. Hence the distinction between islands and rocks is a crucial issue. While criteria concerning the distinction are enshrined in Article 121(3), this provision is rather dif

ficult

to apply due to the vagueness of the language.

Arbitral Tribunal, in the

The Annex VII

South China Sea Arbitration (Merits), speci fied the qualitative and

temporal requirements in the interpretation and application of Article 121 of the LOSC. While the Tribunal’ s interpretation is well worth considering, it remains to be seen whether and to what extent that interpretation will be supported by subsequent State and judicial practice. (v) While islands must be above water at high tide, low-tide elevations are submerged at high tide. Thus the distinction between islands and low-tide elevations is affected by tidal levels. In borderline cases, the difference between tidal datums may give rise to international disputes with regard to the legal status of marine features. Yet there is no established general rule of international law relating to the selection of tidal datum. Further consideration should thus be given to technical aspects in the law of the sea, including the selection of tidal datum. (vi) In light of the in general and speci

finite variety of coastal

figurations, it

con

ficult to formulate

is dif

fic rules respecting baselines. The same applies to rules governing mari-

time features, including islands, rocks and low-tide elevations. As a consequence, rules on these subjects contain many obscure elements. It may be said that the tension between generality of law and geographical diversity is a major cause of ambiguity in rules governing the limits of marine spaces.

FURTHER READING 1 General In

order

to

understand

technical

terms

and

concepts

respecting

hydrography,

the

following

documents will be useful.

fi eld,

C. Carleton and C. Sho

‘Developments in the Technical Determination of Maritime Space:

Charts, Datums, Baselines, Maritime Zones and Limits’ ,

Maritime Briefing, vol. 3, no. 3

(Durham, International Boundaries Research Unit, 2001). International Hydrographic Organization, (Monaco, 1994).

Hydrographic Dictionary, Part 1, vol. 1, 5th edn

finition of Maritime

Nuno Sérgio Marques Antunes, ‘ The Importance of the Tidal Datum in the De Limits and Boundaries’,

Maritime Briefing, vol. 2, no. 7 (Durham, International Boundaries

Research Unit, 2000). G. K. Walker (ed.),

Definitions for the Law of the Sea: Terms Not Defined by the 1982 Convention

(Leiden, Brill/Nijhoff, 2012).

92 International Law Governing Jurisdictional Zones

2 Baselines D. D. Caron, ‘Climate Change, Sea Level Rise and the Coming Uncertainty in Oceanic Boundaries:

flict , in Seoung-Yong Hong and J. M. Van Dyke (eds.), Maritime

A Proposal to Avoid Con

’

Boundary Disputes, Settlement Processes, and the Law of the Sea (London and Boston, Brill/ Nijhoff, 2009), pp. 1 –17. J.-P. Cot, ‘ The Dual Function of Base Points’, in H. P. Hestermeyer et al. (eds.), Coexistence, Cooperation and Solidarity, Liber Amicorum Rüdiger Wolfrum (Leiden, Brill/Nijhoff, 2012), pp. 807–827. C. G. Lathrop, ‘ Baselines’, in Oxford Handbook, pp. 69 –90. V. Prescott and C. Scho

field, The Maritime Political Boundaries of the World, 2nd edn (Leiden and

Boston, Brill/Nijhoff, 2005). W. M. Reisman and G. S. Westerman, Straight Baselines in International Maritime Boundary Delimitation (New York, St Martin ’s Press, 1992). J. A. Roach and R. W. Smith, ‘Straight Baselines: The Need for a Universally Applied Norm’ (2000) 31 ODIL, pp. 47 –80. C. Scho

fi eld,

‘Rising Waters, Shrinking States: The Potential Impacts of Sea Level Rise on Claims to

Maritime Jurisdiction’ (2010) 53 GYIL, pp. 189 –231. A. H. A. Soons, ‘The Effects of a Rising Sea Level on Maritime Limits and Boundaries’ (1990) 37 NILR, pp. 207 –232. C. Symmons and M. W. Reed, ‘ Baseline Publicity and Charting Requirements: An Overlooked Issue in the UN Convention on the Law of the Sea ’ (2010) 41 ODIL, pp. 77 –111. UNDOALOS, The Law of the Sea: Baselines: An Examination of the Relevant Provisions of the United Nations Convention on the Law of the Sea (New York, United Nations, 1989). US Department of State, Limits of the Seas , available online at: www.state.gov/e/oes/ocns/opa/ c16065.htm. C. H. M. Waldock, ‘The Anglo-Norwegian Fisheries Case’ (1951) 28 BYIL, pp. 114 –171.

3 Bays L. J. Bouchez, The Regime of Bays in International Law (Leiden, Sythoff, 1964). A. Gioia, ‘The Law of Multinational Bays and the Case of the Gulf of Fonseca’ (1993) 24 NYIL, pp. 81–137. C. Symmons, ‘The Maritime Border Areas of Ireland, North and South: An Assessment of Present Jurisdictional Ambiguities and International Precedents Relating to Delimitation of “ Border Bays”’ (2009) 24 IJMCL , pp. 457–500. Symposium on Historic Bays of the Mediterranean (1984) 11 Syracuse Journal of International Law and Commerce, pp. 205 –415. UN Secretariat, ‘Judicial Régime of Historic Waters, Including Historic Bays’ , Document A/CN.4/ 143, (1962) 2 YILC, pp. 1–26. G. Westerman, The Juridical Bay (Oxford University Press, 1987).

4 Islands J. Borton (ed.), Islands and Rocks in the South China Sea: Post-Hague Ruling (Bloomington, IN, Xlibris, 2017). D. W. Bowett, The Legal Regime of Islands in International Law (New York, Oceana, 1979). H. Dipla, Le régime juridique des îles dans le droit international de la mer (Paris, PUF, 1984). E. Franckx, ‘The Regime of Islands and Rocks’ , IMLI Manual, vol. I, pp. 99–124.

93 Baselines and Related Issues H. W. Jayewardene, The Regime of Islands in International Law (Dordrecht, Nijhoff, 1990). J. L. Jesus, ‘Rocks, New-Born Islands, Sea Level Rise and Maritime Space’, in J. A. Frowein, K. Scharioth, I. Winkelmann and R. Wolfrum (eds.), Negotiating for Peace, Liber Amicorum Tono Eitel (Berlin, Springer, 2003), pp. 579–603. R. Kolb, ‘ L’interprétation de l’ article 121, paragraph 3, dela Convention de Montego Bay sur le droit de la mer: les “ roches qui ne se prêtent pas à l’habitation humaine ou à une vie économique propre . . .”’ (1994) 40 AFDI, pp. 876 –909. B. Kwiatkowska and H. A. Soons, ‘Entitlement to Maritime Areas of Rocks Which Cannot Sustain Human Habitation or Economic Life of their Own ’ (1990) 21 NYIL, pp. 139 –181. S. D. Murphy, International Law Relating to Islands (Leiden, Brill/Nijhoff, 2017). M. H. Nordquist, ‘ Textual Interpretation of Article 121 in the UN Convention on the Law of the Sea’, in H. P. Hestermeyer et al. (eds.), Coexistence, Cooperation and Solidarity, Liber Amicorum Rüdiger Wolfrum (Leiden, Brill/Nijhoff, 2012), pp. 991 –1035. A. G. Oude Elferink, ‘Is it Either Necessary or Possible to Clarify the Provision on Rocks of Article 121(3) of the Law of the Sea Convention?’ , in M. Pratt and J. A. Brown (eds.), Borderlands Under Stress (The Hague, Kluwer, 2000), pp. 389–407. N. Papadakis, The International Legal Regime of Arti

ficial Islands (Leiden, Sijthoff, 1977).

P. Siousiouras and I. Tsouros, ‘Island Regime in the Context of the Montego Bay Convention on the Law of the Sea ’ (2007) 60 Revue hellénique de droit international, pp. 359 –370. C. Symmons, The Maritime Zones of Islands in International Law (The Hague, Nijhoff, 1979). Y. Tanaka, ‘Re

flections on the Interpretation and Application of Article 121(3) in the South China

Sea Arbitration (Merits) ’ (2017) 48 ODIL, pp. 365– 385.

5 Reefs P. B. Beazley, ‘Reefs and the 1982 Convention on the Law of the Sea ’ (1991) 6 IJECL, pp. 281– 312. I. Kawaley, ‘Delimitation of Islands Fringed with Reefs: Article 6 of the 1982 Law of the Sea Convention ’ (1992) 41 ICLQ, pp. 152 –160.

6 Low-Tide Elevations G. Guillaume, ‘Les hauts-fonds découvrants en droit international’ , in La mer et son droit, Mélanges offerts à Laurent Lucchini et Jean-Pierre Quéneudec (Paris, Pedone, 2003), pp. 287 –302. R. Lavalle, ‘The Rights of States over Low-Tide Elevations: A Legal Analysis’ (2014) 29 IJMCL, pp. 1–23.

fi nition of

C. Symmons, ‘Some Problems Relating to the De

“ Insular Formations” in International

Law: Islands and Low-Tide Elevations ’, Maritime Brie

fing, vol. 1, no. 5 (Durham:

International Boundaries Research Unit, 1995), pp. 1–32. ‘When Is an “ Island” Not an “ Island” in International Law? The Riddle of Dinkum Sands in the

Case of US v. Alaska’ , Maritime Brie

fing, vol. 2, no. 6 (Durham: International Boundaries

Research Unit, 1999). Y. Tanaka, ‘Low-Tide Elevations in International Law of the Sea: Selected Issues’ (2006) 20 Ocean Yearbook, pp. 189 –219. P. Weil, ‘Les hauts-fonds découvrants dans la délimitation maritime: à propos des paragraphes 200–209 de l’ arrêt de la Cour internationale de Justice du 16 mars 2001 en l’affaire de la délimitation maritime et questions territoriales entre Qatar et Bahreïn’ , in N. Ando et al. (eds.), Liber Amicorum Judge Shigeru Oda (The Hague, Kluwer, 2002), pp. 307–321.

3 Marine Spaces Under National Jurisdiction I: Territorial Sovereignty Main Issues

Internal waters, territorial seas, international straits and archipelagic waters are marine spaces under the territorial sovereignty of the coastal State. However, the use of the marine environment for sea communication necessitates the freedom of navigation through those spaces. Consequently, marine spaces under territorial sovereignty are part of the territory of the coastal State and the highway for sea communication at the same time. The dual nature of marine spaces gives rise to the fundamental question of how it is possible to reconcile the territorial sovereignty of the coastal State and the freedom of navigation. With that question as a backdrop, this chapter will examine the following issues in particular:

(i) What is the coastal State’ s jurisdiction over foreign vessels in internal waters? (ii) How is it possible to reconcile the need to provide refuge for ships in distress and the protection of the offshore environment of the coastal State? (iii) What is the right of innocent passage? (iv) Do foreign warships enjoy the right of innocent passage through the territorial sea? (v) What is the legal regime of international straits? (vi) What is the legal regime of archipelagic waters? (vii) What are the differences between the right of innocent passage, the right of transit passage and the right of archipelagic sea lane passage?

1 INTRODUCTION This chapter will seek to examine rules of international law governing marine spaces under territorial sovereignty. In this regard, particular attention must be devoted to two issues with regard to the reconciliation between the territorial sovereignty of the coastal State and the freedom of navigation. The

first issue involves the tension between the strategic interest of naval powers and the

security interest of coastal States. On the one hand, ensuring the freedom of navigation of

94

95

Marine Spaces Under Territorial Sovereignty warships through marine spaces under national jurisdiction is of paramount importance for naval powers. On the other hand, the passage of foreign warships through offshore areas may be a source of threat to the security of coastal States. Thus a question arises of how it is possible to reconcile the two contrasting interests. A second issue concerns the reconciliation between the navigational interest of user States and the shipping industry on the one hand, and the marine environmental protection of coastal States on the other hand. Nowadays the size of vessels is ever increasing, and the contents of cargoes may be highly dangerous to the marine environment of the coastal State in the event of an accident. Consequently, the protection of the marine environment from vessel-source hazards is a matter of serious concern for coastal States. A question thus arises as to how it is possible to balance the freedom of navigation and the protection of the offshore environment of coastal States. Noting these issues, the present chapter will address rules of international law governing internal waters (section 2), the territorial sea (section 3), international straits (section 4) and archipelagic waters (section 5).

2 INTERNAL WATERS

2.1 Spatial Scope of Internal Waters

Internal waters are ‘ those waters which lie landward of the baseline from which the 1

territorial sea is measured’ .

fically, internal waters in a legal sense embrace (i) parts

Speci

of the sea along the coast down to the low-water mark, (ii) ports and harbours, (iii) estuaries, (iv) landward waters from the closing line of bays, and (v) waters enclosed by straight baselines. On the other hand, as noted earlier, internal waters in the law of the sea do not include waters within the land territory and land-locked waters or lakes.

2

The seaward limit of internal waters is determined by a baseline from which the territorial sea

is

measured.

The

baseline

becomes

the

landward

limit

of

the

territorial

sea.

3

Accordingly, internal waters are bound by the territorial sea of the coastal State. An exception is the case of archipelagic States. As will be seen, archipelagic States may draw lines limiting their internal waters across the mouths of rivers, bays and ports only within their archipelagic waters. In this case, the internal waters are bound by the archipelagic waters, not by the territorial sea.

1 2

LOSC, Article 8(1). G. Gidel, Le droit international public de la mer: le temps de paix, vol.1, Introduction, la haute mer (reprint, Paris, Duchemin, 1981), pp. 40–41; P. Vincent, Droit de la mer (Brussels, Larcier, 2008), p. 33. See also Chapter 1, section 2 of this book.

3

The LOSC contains no provision concerning the landward limit of the internal waters. Some treaties regarding marine environmental protection establish the landward limit of the internal waters at the freshwater limit. See for instance Article 1(b) of the OSPAR Convention. See also K. Trümpler, ‘Article 8 ’, in A. Prölss (ed.), United Nations Convention on the Law of the Sea: A Commentary (Munich, Beck/Oxford, Hart Publishing/ Baden-Baden, Nomos, 2017) (hereinafter Prölss, A Commentary), pp. 88–89.

96

International Law Governing Jurisdictional Zones

2.2 Legal Status of Internal Waters

Every coastal State enjoys full sovereignty over its internal waters. Article 2(1) of the LOSC provides:

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.

Unlike the territorial sea, the right of innocent passage does not apply to internal waters. The exception to this rule is that where the internal waters have been newly enclosed by a straight baseline, the right of innocent passage shall exist in those waters by virtue of Article 5(2) of the TSC and Article 8 of the

LOSC.

2.3 Jurisdiction of the Coastal State Over Foreign Vessels in Internal Waters

Normally the civil jurisdiction of the coastal State is not exercised in connection with disputes of a private nature arising between members of the crew. In relation to criminal jurisdiction,

international

lawyers

have

been

American position with the French position.

accustomed

to

contrasting

the

Anglo-

4

According to the Anglo-American position, the coastal State has complete jurisdiction over foreign vessels in its ports. Nonetheless, as a matter of comity, the coastal State may refrain from exercising its jurisdiction over those vessels.

5

This position was echoed by the

United States Supreme Court in the 1887 Wildenhus case. In this case, the US Supreme Court took the view that ‘by comity ’, all matters of discipline and all things done on board which affected only the vessel should be dealt with by authorities of the nation to which the vessel belonged.

6

According to the French position, the coastal State has in law no jurisdiction over purely internal affairs on foreign vessels in its ports. This position derived from the opinion of the French Conseil d’Etat in the Sally and Newton cases in 1806. These two cases involved two American ships in French ports. In both cases, one member of the crew assaulted another. The Conseil d’Etat declared that local jurisdiction did not apply to matters of internal

4

L. Lucchini and M. Voelckel, Droit de la mer, vol. 1 (Paris, Pedone, 1990), pp. 157–159; I. Brownlie, Principles of Public International Law (Oxford University Press, 2008), p. 319.

5

The delegation of Great Britain explained its position at the 1930 Hague Conference. S. Rosenne (ed.), League of Nations Conference for the Codi

fication of International Law [1930], vol. 2 (New York, Oceana, 1975),

p. 317. 6

120 U.S. 1 (1887), p. 11. The judgment was reproduced in K. R. Simmonds, Cases on the Law of the Sea, vol. 2

firmed

(Dobbs Ferry, New York, Oceana Publications, 1977), pp. 406 –411 (at p. 409). This position is also con

in Reporter’s Note of the Restatement of the Law Third, The Foreign Relations Law of the United States. The American Law Institute, Restatement of the Law Third: The Foreign Relations Law of the United States , vol. 2 (American Law Institute Publishers, 1990) § 512, Reporter’s Note 5, p. 42.

97

Marine Spaces Under Territorial Sovereignty discipline or offences by members of a crew, unless the peace and good order of the port were affected, or the local authorities were asked for assistance. As aptly pointed out by Gidel, however, the opinion of the

7

Conseil d’Etat

of 1806 did not

completely deny the territorial jurisdiction of the coastal State over offences committed on board foreign ships in French ports. The opinion merely declared that the coastal State would not exercise its jurisdiction in certain cases.

Tempest

8

In fact, a French court, in the 1859

case, held that homicide of a fellow crew member compromised the peace of the

port, and therefore brought the ship under local jurisdiction.

9

As a matter of practice,

therefore, the points of difference between the two positions appear to be minimal. In modern practice, the scope of criminal jurisdiction of the coastal State over foreign merchant ships is provided by speci

fic consular conventions. Recent State practice seems to

be generally consistent on the following matters.

10

(i) Foreign ships entering a port are subject to the sovereignty of the coastal State and that State has criminal jurisdiction over them. However, the coastal State does not exercise criminal jurisdiction over matters involving solely the internal discipline of the ship. (ii) The coastal State will exercise criminal jurisdiction in the following cases: (a) when an offence caused on board the ship affects or is likely to affect the peace and order or the tranquillity of the port or on land, or its interests are engaged, (b) when its intervention is requested by the captain, or the consul of the

flag State of

the vessel, (c) when a non-crew member is involved, (d) when an offence caused on board the ship is of a serious character, usually punishable by a sentence of imprisonment for more than a few years, (e) when matters which do not concern solely the ‘internal economy’ of a foreign ship, such as pollution and pilotage, are involved. (iii) It is solely the coastal State which may determine the existence of a situation as described above.

A particular issue that arises in this context concerns the immunity of foreign warships in internal waters.

7

The

Sally

and

11

The key provision in this matter is Article 32 of the LOSC:

Newton

cases were reproduced in Simmonds,

Cases,

vol. I, pp. 77–78. France explained its

League of Nations Conference, pp. 299 –300. Le droit international public de la mer, vol. 2: Les eaux intérieures (reprint, Paris, Douchemin,

position at the 1930 Hague Conference. Rosenne, 8

Gidel,

p. 87 and pp. 204 –205; J. L. Brierly,

1981),

The Law of Nations: An Introduction to the International Law of Peace,

6th edn (Oxford, Clarendon Press, 1963), p. 225. 9 10

The

Tempest

(2004) 18 11

case was reproduced in Simmonds,

Cases,

vol. I, pp. 448 –459.

fi cation

M. Hayashi, ‘Jurisdiction over Foreign Commercial Ships in Ports: A Gap in the Law of the Sea Codi

Ocean Yearbook,

’

p. 505.

fi ned in Article 29 of the LOSC. According to Oxman, warships can be regarded as a

Warships are de

‘special

subclass’ of government vessels operated for non-commercial purposes. B. H. Oxman, ‘The Regime of Warships under the United Nations Convention on the Law of the Sea’ (1984) 24

International Law, are speci

Virginia Journal of

p. 813. Under the LOSC, warships are distinct from other government vessels since there

fic activities and rules applicable only to warships. See LOSC, Article 110(1) and (5); T. L.

McDorman, ‘Sovereign Immune Vessels: Immunities, Responsibilities and Exemptions’, in H. Ringbom (ed.),

Jurisdiction over Ships: Post-UNCLOS Developments in the Law of the Sea pp. 88–89.

(Leiden, Brill/Nijhoff, 2015),

98

International Law Governing Jurisdictional Zones With such exceptions as are contained in subsection A and in articles 30 and 31, nothing in this Convention affects the immunities of warships and other government ships operated for noncommercial purposes.

The question of interest here is whether this provision is applicable to internal waters. The 12

2012 ARA Libertad case shed some light on this subject.

A pivotal issue of this case relates

to the legality of Ghana ’s detention of the ARA Libertad, a frigate of Argentina, in its port. In this case, ITLOS noted that the geographical scope of Article 32 was not speci

fied.

According to the Tribunal, although Article 32 is included in Part II of the Convention entitled ‘ Territorial Sea and Contiguous Zone’ , some of the provisions in this Part may be

finition of warships provided for in

applicable to all maritime areas, as in the case of the de 13

LOSC Article 29.

Thus the Tribunal unanimously prescribed the provisional measure that

ordered Ghana to forthwith and unconditionally release the frigate ARA Libertad. Members of the crew ashore on duty or of

ficial

14

mission are immune from the local

jurisdiction, when committing breaches of local law. Members of the crew committing breaches of local law when ashore on leave and recovering the ship are also immune from the local jurisdiction. It is debatable whether political asylum may be granted on board in positive international law.

15

However, it seems beyond doubt that slaves on board shall be

free because slavery is prohibited in international law. In this respect, Article 13 of the Geneva Convention on the High Seas and Article 99 of the LOSC explicitly hold that: ‘ Any slave taking refuge on board any ship, whatever its

flag, shall ipso facto be free.

’

2.4 Access to Ports

As ports are under the territorial sovereignty of the coastal State, that State may regulate foreign vessel ’ s entry to its ports. Indeed, the ICJ, in the Nicaragua case, clearly stated: ‘It is also by virtue of its sovereignty that the coastal State may regulate access to its port.’

16

One

can say, therefore, that there is no right of entry into ports of foreign States in customary international law.

17

In this regard, the 1958 Aramco award, which upheld the right of ships

to access to ports under customary international law,

18

does not seem to conform entirely

with State practice.

12

The ARA Libertad case (Argentina v Ghana), Provisional Measures, Order, ITLOS Reports 2012, p. 332. For a commentary on this case, see Y. Tanaka, ‘The Ara Libertad Case (Argentina v. Ghana, 15 December 2012), Request for the Prescription of Provisional Measures’ (2013) 28 IJMCL, pp. 375– 387.

13

The ARA Libertad case, ITLOS Reports 2012, p. 344, paras. 63–64. See also Tanaka, ‘The Ara Libertad Case’, pp. 384– 385.

14

The ARA Libertad case, ITLOS Reports 2012, p. 350, para. 108(1).

16

15

Military and Paramilitary Activities in and against Nicaragua (Merits), (Nicaragua v United States of

Brownlie, Principles, p. 372.

America), Judgment, ICJ Reports 1986, p. 111, para. 213. 17

This conclusion was echoed by the 1957 Amsterdam Resolution of the Institut de droit international. Institut

de droit international, ‘The Distinction Between the Régime of the Territorial Sea and the Régime of Internal Waters’, Session of Amsterdam, 24 September 1957, Part II. The French text is authoritative. 18

(1958) 27 ILR, p. 212.

99

Marine Spaces Under Territorial Sovereignty In fact, it is not uncommon that nuclear-powered ships and ships carrying nuclear or other noxious substances can enter a port only with the permission of the coastal State.

19

The coastal State is empowered to establish particular requirements for the entry of foreign vessels into their ports in order to prevent pollution from vessels in accordance with Article 211(3) of the LOSC. In the case of ships proceeding to internal waters or a call at a port facility outside internal waters, the coastal State has the right to take the necessary steps to prevent any breach of the conditions to which admission of those ships to internal waters or such a call is subject pursuant to Article 25(2). A foreign warship has no automatic right to enter into internal waters or ports of another State, without diplomatic clearance. In practice, sea communication would be much disturbed without access to ports. Thus, many bilateral treaties of ‘Friendship, Commerce and Navigation ’ confer rights of entry to ports for foreign merchant ships. For instance, Article XIX(2) of the 1956 Treaty of Friendship, Commerce and Navigation between the Netherlands and the United States of America stipulates: ‘ Vessels of either Party shall have liberty . . . to come with their cargoes to all ports, places and waters of such other Party open to foreign commerce and navigation.’

20

As for multilateral treaty provisions, Article 2 of the 1923 Geneva Convention and

Statute on the International Regime of Maritime Ports provides:

21

Subject to the principle of reciprocity and to the reservation set out in the

first paragraph of

Article 8, every Contracting State undertakes to grant the vessels of every other Contracting State equality of treatment with its own vessels, or those of any other States whatsoever, in the maritime ports situated under its sovereignty or authority, as regards freedom of access to the

fi

port, the use of the port, and the full enjoyment of the bene ts as regards navigation and commercial operations which it affords to vessels, their cargoes and passengers.

It can be presumed that normally the ports of the coastal State are open to merchant vessels unless otherwise provided.

2.5 Ships in Distress at Sea

(a) Concept of Ships in Distress In light of imminent danger, particular rules apply to a ship in distress. Concerning the criteria for determining a distress situation, Lord Stowell, in the Eleanor case, speci

fied four

requirements. First, distress must be urgent and something of grave necessity. Second, ‘ there must be at least a moral necessity’ . Third, ‘ it must not be a distress which he has

created himself’ . Fourth, ‘ the distress must be proved by the claimant in a clear and satisfactory manner ’.

19 21

22

At the treaty level, the 1979 International Convention on Maritime

V. D. Degan, ‘Internal Waters’ (1986) 17 NYIL, p. 21.

20

285 UNTS, p. 232.

58 LNTS , p. 285. The text was reproduced in A. V. Lowe and S. A. G. Talmon, The Legal Order of the Oceans:

Basic Documents on the Law of the Sea (Oxford, Hart Publishing, 2009), p. 1. 22

The Eleanor case (1809) 165 English Reports , p. 1068.

100 International Law Governing Jurisdictional Zones Search and Rescue de

fines a

‘distress phase ’ as: ‘A situation wherein there is a reasonable

certainty that a vessel or a person is threatened by grave and imminent danger and requires immediate assistance.’

23

In this regard, an issue arises as to whether the plea of distress is limited to saving human life. This issue is of practical importance since, as will be discussed below, the ships in distress have a right of entry to any foreign port under customary international law. When drafting Article 24 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts, which relates to distress, the ILC made it clear that ‘Article 24 is limited 24

to cases where human life is at stake’ .

It stressed that the interest concerned in the

situation of distress is the immediate one of saving people ’s lives, irrespective of their nationality.

25

According to the ILC, threats to human life are at the heart of the concept of

distress under international law of State responsibility. By analogy, it may not be unreasonable to argue that the protection of the lives of persons on board constitutes an essential element for identifying ships in distress. The right of ships in distress to access to ports of foreign States constitutes an exception to the coastal State ’s jurisdiction and the exception should be interpreted in a restrictive manner in order to prevent the abuse of the claim of distress. It may go too far to include ships which need assistance only to protect economic interests, i.e. the ship and its cargo, within the scope of ships in distress.

26

The restrictive interpretation of the concept of ships in distress was echoed by the Irish High Court of Admiralty in the M/V Toledo case of 1995.

27

In this case, Barr J made a clear

distinction between two types of situations of ships: the one where there is a grave and imminent peril against the lives of persons on board and the other where the risk to vessel and cargo is purely economic in nature.

28

Barr J then ruled that: ‘[I]f safety of life is not a

factor, then there is a widely recognised practice among maritime states to have proper regard to their own interests and those of their citizens in deciding whether or not to accede 29

to any such request. ’

It can also be observed that international instruments tend to

distinguish ships requiring rescue of persons on board from ships in need of assistance, i.e. a ship in a situation that could give rise to loss of the vessel or an environmental or navigational hazard.

23 24

30

1405 UNTS , p. 97. Annex Chapter 1.3.11. Commentary to Article 24, in J. Crawford, The International Law Commission’s Articles on State

Responsibility: Introduction, Text and Commentaries (Cambridge University Press, 2002), p. 176. 25 26 27

Ibid., p. 174. R. R. Churchill and A. V. Lowe, The Law of the Sea, 3rd edn (Manchester University Press, 1999), p. 63.

ACT Shipping (PTE) Ltd., Plaintiff v Minister for the Marine, Ireland and the Attorney General, Defendants [1991 No. 2400P], (1995) 3 The Irish Reports, pp. 406 et seq.

28 30

Ibid., p. 424.

29

Ibid., pp. 426–427.

See, for instance, the IMO Guidelines on Places of Refuge for Ships in Need of Assistance, Resolution A.949 (23) adopted on 5 December 2003, A 23/Res.949, 5 March 2004, para. 1.18; Article 1(2)(v) of Directive 2009/ 17/EC of the European Parliament and of the Council of 23 April 2009 amending Directive 2002/59/EC

fi c Monitoring and Information System, Offi cial Journal of the

establishing a Community Vessel Traf

European Union, 28.5.2009, L 131/101; Comité Maritime International (CMI), Draft Instrument of Places of Refuge, para. 1(b). This instrument is available at: https://comitemaritime.org/wp-content/uploads/2018/05/ Refugee.pdf. See also G. Cataldi, ‘Problèmes généraux de la navigation en Europe ’, in R. C. Raigón, L’ Europe

et la mer: Pêche, navigation et environnement marin (Brussels, Bruylant, 2005), p. 145.

101

Marine Spaces Under Territorial Sovereignty

(b) The Rights of Ships in Distress For humanitarian and safety reasons, it is generally recognised that any foreign vessel in distress has a right of entry to any foreign port under customary international law. words of the 1809 suf

Eleanor judgment,

31

In the

‘[r]eal and irresistible distress must be at all times a

ficient passport for human beings under any such application of human laws . ’

32

A ship

in distress entering a port or a place of refuge enjoys immunity from local laws. The immunity applies to arrest of the vessel, to local health, criminal and tax laws, as well as to public charges levied for entry into port.

The burden of proof to establish distress is on

the party claiming exemption from local laws, namely the ship in question.

33

A ship in

distress is also exempted from certain rules regulating marine pollution because such rules apply only to ships that have voluntarily entered a port or an offshore terminal.

34

However,

force majeure , and the ship cannot enjoy immunity from all local laws. One can also say that a ship in distress that is engaged in any activity contrary to jus cogens, such as slave trading, a ship in distress enjoys immunity only where local laws are breached for reasons of 35

should lose its immunity if it enters a place of refuge.

36

A contemporary issue that needs further consideration involves environmental hazards arising from ships in distress. In former times, ships were smaller in size and their cargoes were not inherently dangerous to the marine environment of coastal States. Nowadays, however, the size of ships has increased and there is growing concern that the contents of cargoes and fuel can threaten the offshore environment of coastal States. In the case of accidents, the economic and health interests of a coastal State ’s local community may be seriously damaged. It is probable, therefore, that coastal States will refuse to grant ships in distress access to a place of refuge in order to protect the environment of offshore areas, as

Erika in 1999. Likewise, in 2001, several Castor refuge in safer waters. In 2002, Spain

occurred when France refused to give refuge to the coastal States refused the damaged tanker ordered

the oil

tanker

Prestige

to

be towed

out

to

sea

from

the Bay

of Biscay.

As

demonstrated in these examples, a tension arises as to how it is possible to reconcile the need to provide refuge for ships in distress and the marine environmental protection of the coastal State. Here an issue to be considered is whether the traditional rules concerning ships in distress were changed by recent State practice refusing to grant a place of refuge to ships which requested permission to enter into a port. In this regard, three observations can be made.

31

The customary law character of the right of entry into a foreign port by ships in distress is fully supported by

The Law of Territorial Waters and Maritime Jurisdiction (New Law of the Sea, p. 63; J. E. Noyes, ‘Ships in Distress ’, in Max Planck Encyclopedia, para. 11; R. Barnes, ‘Refugee Law at Sea ’ (2004) 53 ICLQ, p. 58. The Eleanor case, p. 1067. Noyes, ‘Ships in Distress’, p. 4, para. 21. expert commentators, including: P. C. Jessup,

York, G. A. Jennings Co., 1927), p. 208; Degan, ‘Internal Waters’, p. 10; Churchill and Lowe,

32 34 35

33

LOSC, Articles 218(1), (3) and 220(1). D. P. O’Connell (I. A. Shearer ed.),

The International Law of the Sea , vol. 2 (Oxford, Clarendon Press, 1984),

p. 857. 36

Noyes, ‘Ships in Distress’, p. 5, para. 24.

102

International Law Governing Jurisdictional Zones First, as noted, the right of entry into foreign ports by vessels in distress is a longestablished rule of customary international law. It is debatable whether there is widespread and uniform State practice, along with opinio juris , which may change the rule at this stage. It must also be recalled that Article 195 of the LOSC explicitly forbids States ‘ to transfer, directly or indirectly, damage or hazards from one area to another or transform one type of pollution into another ’ . Second, humanitarian consideration is the primary basis of the right of vessels in distress. As already mentioned, the importance of ‘elementary considerations of humanity ’ was

firmed by the ICJ and ITLOS.

af

37

As implied in the M/V Toledo judgment, there is a good

reason to argue that if entry into port is the only means to prevent an inevitable loss of life, the coastal State should not refuse to provide refuge to ships in distress. Third, where a ship in distress is sent back out to sea, very dangerous situations may arise for both the ship and the environment of coastal States. In this regard, it must be recalled that the Erika and the Prestige were eventually destroyed, causing substantial pollution to the offshore environment. Thus there appears to be a general sense that allowing a ship in distress into a place of refuge would be the best way to prevent environmental damage. In this respect, it is notable that Article 20 of Directive 2002/59/EC requires the EU Member States to draw up plans to accommodate ships in distress in the waters under their jurisdiction.

38

Likewise, the Protocol Concerning Cooperation in Preventing Pollution from

Ships and, in Cases of Emergency, Combating Pollution of the Mediterranean Sea of 2002 also imposes upon the Contracting Parties a duty to de

fine

strategies concerning

reception in places of refuge, including ports, of ships in distress presenting a threat to the marine environment.

39

At the same time, there is also a need for the

flag

State to make

vigorous efforts to eliminate substandard shipping.

3 TERRITORIAL SEA

3.1 Legal Status of the Territorial Sea

The territorial sea is a marine space under the territorial sovereignty of the coastal State up to a limit not exceeding 12 nautical miles measured from baselines.

40

The territorial sea

comprises the seabed and its subsoil, the adjacent waters, and its airspace. The landward limit of the territorial sea is the baseline. In the case of archipelagic States, the inner limit of the territorial sea is the archipelagic baseline. The outer limit of the territorial sea is the line every point of which is at a distance from the nearest point of the baseline equal to the breadth of the territorial sea.

37

Corfu Channel (United Kingdom of Great Britain and Northern Ireland v Albania ), ICJ Reports 1949, p. 22; The M/V ‘ Saiga’ (No. 2) case (1999) 38 ILM, p. 1355, para. 155. See also Chapter 1, section 3.2(d) of this book.

38

Directive 2002/59/EC of the European Parliament and of the Council of 27 June 2002 establishing a

fi

Community Vessel Traf c Monitoring and Information System and Repealing Council Directive 93/75/EEC. 39

Article 16. Entered into force 17 March 2004.

40

LOSC, Article 3.

103

Marine Spaces Under Territorial Sovereignty At present, some 137 States Parties to the LOSC have established a 12-nautical-mile territorial sea, and approximately ten States have claimed, wholly or partly, a territorial sea of less than 12 nautical miles. Some twenty-four States that formerly claimed a territorial sea more than 12 nautical miles in breadth have pulled back its breadth to 12 nautical miles. 12

41

Only nine States, including four parties to the LOSC, claim a greater breadth than

nautical

States.

43

miles.

42

Nonetheless,

those

claims

have

encountered

protests

from

other

Considering that the 200-nautical-mile EEZ is currently well established as

customary law, it may be said that the 200-nautical-mile territorial sea is contrary to international law. Overall, it seems that the 12 nautical miles maximum breadth of the territorial sea is now established in customary international law.

44

While the LOSC contains

no rule relating to a minimum breadth of the territorial sea, no State has claimed a territorial sea of less than 3 nautical miles in practice. In

addition,

roadsteads

which

are

normally

used

for

the

loading,

unloading

and

anchoring of ships, and which would otherwise be situated wholly or partly outside the outer limit of the territorial sea, are included in the territorial sea.

45

In practice, there seem

to be few areas more than 12 miles from the baseline that are suitable for the loading, unloading and anchoring of ships. Hence it appears that roadsteads have only a minor role in determining the spatial scope of the territorial sea. Concerning the judicial character of the territorial sea, the Court of Arbitration, in the 1909

Grisbadara case between Norway and Sweden, stated that

‘ the maritime territory is an

essential appurtenance of land territory ’ and ‘ an inseparable appurtenance of this land territory ’.

46

According to Judge McNair, ‘ the possession of this territory [territorial waters]

is not optional, not dependent upon the will of the State, but compulsory’ .

41

47

There is no

Those States are: Albania, Angola, Argentina, Brazil, Cameroon, Cape Verde, Gabon, Germany, Ghana, Guinea, Guinea-Bissau, Haiti, Madagascar, Maldives, Mauritania, Nicaragua, Nigeria, Panama, Senegal, Sierra Leone, Syria, Tanzania, Tonga and Uruguay. Apart from Syria, these States have rati

fied the LOSC.

R. R. Churchill, ‘The Impact of State Practice on the Jurisdictional Framework contained in the LOS Convention’, in A. G. Oude Elferink (ed.),

Convention Claims,

Stability and Change in the Law of the Sea: The Role of the LOS Excessive Maritime

(Leiden and Boston, Brill/Nijhoff, 2005), p. 110; J. A. Roach and R. W. Smith,

3rd edn (Leiden, Brill/Nijhoff, 2012), pp. 138 –143. The list of States which have reduced excessive

claims to territorial sea may vary according to the time of research. 42

Those States are: Benin (200 nautical miles), Ecuador (200 nautical miles), El Salvador (200 nautical miles), Peru (200 nautical miles), the Philippines (beyond 12 nautical miles), Somalia (200 nautical miles), and Togo (30 nautical miles). Benin, Philippines, Somalia and Togo are parties to the LOSC. The Philippines claims as

fi ned by coordinates, which in places extends beyond 12 nautical miles from

its territorial sea a rectangle de the baseline. 43 44

Roach and Smith, T. Treves, ‘Codi

RCADI,

pp. 144–148.

’ (1990-IV) 223

p. 66; Churchill and Lowe,

Encyclopedia, 45

Excessive Maritime Claims,

fication du droit international et pratique des Etats dans le droit de la mer Law of the Sea,

p. 80; S. Wolf, ‘Territorial Sea’, in

Max Planck

para. 4.

LOSC, Article 12. A roadstead means ‘an area near the shore where vessels are intended to anchor in a position of safety; often situated in a shallow indentation of the coast’. ‘Consolidated Glossary of Technical

The Law of the Sea: Baselines: An Examination of the Relevant Provisions of the United Nations Convention on the Law of the Sea Terms Used in the United Nations Convention on the Law of the Sea’, in UNDOALOS,

(New York, United Nations, 1989), p. 60. 46 47

(1910) 4 The

AJIL

p. 231 (an English translation). For an original text of the Award, see 11

Anglo-Norwegian Fisheries

case, ICJ Reports 1951, p. 160.

RIAA,

pp. 147–166.

104

International Law Governing Jurisdictional Zones doubt that the territorial sea is under the territorial sovereignty of the coastal State.

48

As

explained earlier, territorial sovereignty in international law is characterised by completeness and exclusiveness.

49

Accordingly, the coastal State can exercise complete legislative

and enforcement jurisdiction over all matters and all people in an exclusive manner unless international law provides otherwise. At the same time, under Article 2(3) of the LOSC, sovereignty over the territorial sea is subject to the Convention and to other rules of international law. As will be seen next, coastal States’ sovereignty over the territorial sea is restricted by the right of innocent passage for foreign vessels.

3.2 The Right of Innocent Passage

The right of innocent passage through the territorial sea is based on the freedom of navigation as an essential means to accomplish freedom of trade. In his book published in 1758, Emer de Vattel had already accepted the existence of such a right.

50

Subsequently,

in the Twee Gebroeders case of 1801, Lord Stowell ruled that: ‘[T]he act of inoffensively passing over such portions of water, without any violence committed there, is not considered as any violation of territory belonging to a neutral state – permission is not usually required. ’

51

It may be considered that the right of innocent passage became established in

the middle of the nineteenth century.

52

In this regard, the Report Adopted by the Commit-

tee on 10 April 1930 at the Hague Conference for the Codi

fication

of International Law

clearly stated:

This sovereignty [over the territorial sea] is, however, limited by conditions established by international law; indeed, it is precisely because the freedom of navigation is of such great importance to all States that the right of innocent passage through the territorial sea has been 53

generally recognised.

At the treaty level, the right of innocent passage was, for the

first time, codified in Article 14(1)

of the TSC. This provision was followed by Article 17 of the LOSC, which provides:

48

According to Gidel, the territorial sea is a ‘submerged territory’. Gidel, Le droit international public de la mer, Le temps de paix, Tome III La mer territorial et la zone contiguë (Paris, Duchemin, 1981), p. 169.

49 50

See Chapter 1, section 2.2 of this book. Emer de Vattel, The Law of Nations; or Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns (transl. Joseph Chitty, Philadelphia, T. and J. W. Johnson and Co., Law Booksellers, 1853), sections 288 and 292. In Vattel’s view, however, permission was still required to exercise the right of innocent passage.

51

The Twee Gebroeders, in K. R. Simmonds, Cases on the Law of the Sea, vol. 1 (Dobbs Ferry, Oceana, 1976), p. 23. In the Franconia case of 1876, Sir R. Phillimore also took the view that each State had no right to prevent the passage of foreign ships within 3 miles of the coast. The Queen v Keyn, 2 Ex. D. pp. 81– 82.

52

O’Connell, The International Law of the Sea, p. 275. See also J.-M. Thouvenin, ‘La navigation’, in M. Forteau and J.-M. Thouvenin (eds.), Traité de droit international de la mer (Paris, Pedone, 2017) (hereinafter Traité), p. 692; L. Lucchini and M. Voelckel, Droit de la mer, vol. 2: Navigation et Pêche (Paris, Pedone, 1996), pp. 213– 214.

53

Rosenne, League of Nations Conference (vol. 4), p. 1412.

105

Marine Spaces Under Territorial Sovereignty Subject to this Convention, ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea.

It is important to note that the right of innocent passage does not comprise the freedom of over

flight.

Under Article 18(1) of the LOSC, innocent passage comprises lateral passage and inward/ outward-bound passage. Lateral passage is the passage traversing the territorial sea without entering internal waters or calling at a roadstead or port facility outside internal waters. Inward/outward-bound passage concerns the passage proceeding to or from internal waters or a call at such roadstead or port facility. As will be seen, the direction of the passage is at issue in relation to the criminal jurisdiction of coastal States over vessels of foreign States in the territorial sea. The LOSC contains several rules concerning the manner of innocent passage through the territorial sea. First, passage shall be continuous and expeditious. This means that ships are required to proceed with due speed, having regard to safety and other relevant factors. Under Article 18 (2), passage includes stopping and anchoring only in so far as the same are incidental to ordinary navigation or are rendered necessary by

force majeure or distress or for

the purpose of providing assistance to persons, ships or aircraft in danger or distress. Accordingly, the act of hovering by a foreign vessel is not normally considered innocent passage. Second, in the territorial sea, submarines and other underwater vehicles are required to navigate on the surface and to show their

flag pursuant to Article 20. This provision follows

essentially from Article 14(6) of the TSC. In this respect, the question arises as to whether a breach of the requirement to navigate on the surface can be the negation of the right of innocent passage. While it seems that a submerged submarine in the territorial sea is not considered as innocent passage, submergence in the territorial sea will not instantly justify the use of force against the submarine. Above all, every measure should be taken short of armed force to require the submarine to leave.

54

Third, foreign ships exercising the right of innocent passage through the territorial sea shall comply with all such laws and regulations and all generally accepted international regulations relating to the prevention of collisions at sea in accordance with Article 21(4). The most important regulations are probably those in the 1972 Convention on the International Regulations for Preventing Collisions at Sea.

55

Concerning innocent passage, the question arises as to when passage becomes prejudicial and hence non-innocent. In this respect, Article 19(1) of the LOSC, which is a replica of Article 14(4) of the TSC, provides:

54 55

O’Connell, International Law of the Sea, vol. 1, p. 297. For the text of the Convention, see 1050 UNTS, p. 18. Entered into force 15 July 1977.

106 International Law Governing Jurisdictional Zones

Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law.

More speci

fically, Article 19(2) contains a catalogue of prejudicial activities: (a) any threat

or use of force, (b) any exercise with weapons of any kind, (c) spying, (d) any act of propaganda, (e) the launching, landing or taking on board of any aircraft, (f ) the launching, landing or taking on board of any military device, (g) the loading or unloading of any commodity, currency or person contrary to the customs,

fiscal,

immigration or sanitary

laws of the coastal State, (h) any act of wilful and serious pollution, (i)

fishing activities, (j)

research or survey activities, (k) interference with coastal communications or any other facilities, and (l) any other activity not having a direct bearing on passage. The last item in the list, (l), seems to imply that the above list is non-exhaustive. Article 19 calls for four comments. First, the term ‘ activities’ under Article 19(2) seems to suggest that the prejudicial nature of innocent passage is judged on the basis of the manner in which the passage is carried out, not the type of ship. This approach seemed to be echoed by the ICJ in the 1949 Corfu

Channel case. In that case, the Court relied essentially on the criterion of

‘whether the

manner in which the passage was carried out was consistent with the principle of innocent passage ’.

56

Second, some clauses of Article 19(2) are so widely drafted that disputes may arise with respect to their interpretation. For instance, Article 19(2)(a) refers to ‘ or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations ’. Arguably, this reference may provide wide discretion to the coastal State. Similarly, the coastal State may have wide discretion in the interpretation of Article 19(2)(c), ‘ any act aimed at collecting information to the prejudice of the defence or security of the

coastal State’ and (j), ‘the carrying out of research or survey activities’. In response to possible disagreements concerning the interpretation of Article 19(2), for instance, paragraph 4 of the 1989 Uniform Interpretation between the United States and the USSR stated:

A coastal State which questions whether the particular passage of a ship through its territorial sea is innocent shall inform the ship of the reason why it questions the innocent passage, and provide the ship an opportunity to clarify its intentions or correct its conduct in a reasonably short period of time.

Third, a question arises of whether paragraph 2 of Article 19 is meant to be an illustrative list of paragraph 1 of the same provision, or whether the coastal State may

56

Emphasis in original. The Corfu Channel case (Merits), (United Kingdom v Albania), Judgment, ICJ Reports 1949, p. 30.

107

Marine Spaces Under Territorial Sovereignty evaluate innocence solely on the basis of paragraph 1, independent from paragraph 2. If paragraph super

2

fluous.

ence to

is

an

illustrative

list

of

paragraph

Unlike the second paragraph, the

‘ activities ’ .

1,

first

paragraph

1

would

seem

to

be

paragraph makes no explicit refer-

Hence there appears to be scope to argue that the criterion for

judging innocence under Article 19(1) is not limited to the manner of the passage of ships. At least, there is no clear evidence that the criteria for evaluating innocence of the passage of foreign warships in paragraphs 1 and 2 of Article 19 must be the same. If this is the case, it seems that the coastal State can regard the particular passage of a ship as non-innocent on the basis of Article 19(1), even if the passage concerned does not directly fall within the list of Article 19(2). Following this interpretation, for instance, the Japanese government takes the view that the passage of foreign warships carrying nuclear weapons through its territorial sea is not innocent, while Japan generally admits 57

the right of innocent passage of foreign warships.

Fourth, a question that may arise is whether a violation of a coastal State’ s law would

ipso facto deprive a passage of its innocent character. While the opinion of the members of the ILC was divided on this particular issue, the literal interpretation of Article 14(4) of the TSC appears to suggest that the violation of the coastal State’ s law does not ipso

facto deprive a passage of its innocent character, unless such violation is prejudicial to

the

coastal

State ’s

58

interests.

The

only

exception

involves

Article

14(5),

which

provides:

Passage of foreign

fi

shing vessels shall not be considered innocent if they do not observe such

laws and regulations as the coastal State may make and publish in order to prevent these vessels from

fi

shing in the territorial sea.

This provision was inserted in order to introduce an additional criterion of innocence. It seems to imply that apart from the violation of

fishing law, the breach of the law of the

coastal State does not ipso facto deprive a passage of its innocence. Likewise, there appears to be scope to argue that, under the LOSC, the violation of the law of the coastal State does not ipso facto deprive a passage of its innocent character, unless such violation falls within the scope of Article 19.

57

59

A. Kanehara, ‘The Japanese Legal System Concerning Innocent Passage of Foreign Vessels 1990 –1998’ (1999) 42 The Japanese Annual of International Law, p. 105. The Japanese policy is based on ‘Three NonNuclear Principles’, which means ‘not possessing, not producing, not permitting’ the introduction of nuclear weapons into Japan.

58 59

Churchill and Lowe, Law of the Sea , p. 84. This interpretation is supported by writers such as Carlos Espaliú Berdud, Le passage inoffensive des navires

de guerre étrangers dans la mer territoriale: portée du régime contenu dans la Convention des Nations Unies sur le droit de la mer (Brussels, Bruylant, 2006), p. 54; P. Birnie, A. Boyle and C. Redgwell, International Law and the Environment, 3rd edn (Oxford University Press, 2008), p. 417.

108

International Law Governing Jurisdictional Zones

3.3 The Right of Innocent Passage of Warships

(a) Customary Law The right of innocent passage of warships is of paramount importance for major naval powers in order to secure global naval mobility. However, the passage of foreign warships through the territorial sea may be a threat to the security of the coastal State. A dif

ficult

question thus arises as to whether or not foreign warships have the right of innocent passage in international law. In this respect, Article 5 of the Resolution adopted by the

Institut de droit international

at its 1894 Paris session stated that all ships without distinc-

tion have the right of innocent passage through the territorial sea. Article 11 of the Resolution adopted by the

Institut

60

On the other hand,

at its 1928 Stockholm session stated that 61

the free passage of foreign warships may be subject to special rules of the riparian State.

In 1929, ‘Research in International Law’ by Harvard Law School also stated: ‘ The sovereignty of the littoral state is restricted by the right of innocent passage because of a recognition of the freedom of the seas for the commerce of all states. There is, therefore, no reason for freedom of innocent passage of vessels of war. ’ At the 1930 Hague Codi

fication

62

Conference, Articles 12 and 13 of the Legal Status of

the Territorial Sea, attached to the Report Adopted by the Committee on 10 April 1930, stated:

As a general rule, a coastal State will not forbid the passage of foreign warships in its territorial sea and will not require a previous authorisation or noti

fication. The coastal State has the right

to regulate the conditions of such passage. Submarines shall navigate on the surface.

63

If a foreign warship passing through the territorial sea does not comply with the regulations of the coastal State and disregards any request for compliance which may be brought to its notice, the coastal State may require the warship to leave the territorial sea.

64

In view of those provisions, Gidel argued that the passage of foreign warships through the territorial sea is not a right, but a tolerance (

tolérance

65

) of the coastal State.

Later, the right of innocent passage of foreign warships was at issue in the 1949

Channel

Corfu

case between the United Kingdom and Albania. In this case, Albania asserted that

it could regulate the passage of foreign warships in Albanian territorial waters. By contrast, the United Kingdom maintained that warships possess a right of innocent passage through the territorial sea of another State. While the ICJ accepted the right of innocent passage of

60

But Article 5 added that this does not affect the right of belligerents and the neutral States to regulate the

Règles sur la définition et le régime de la mer territoriale Institut Projet de règlement relative à la mer territoriale en temps de paix

passage. Institut de droit international,

, Session de

Paris, 1894. The electronic text is available at the homepage of the 61

Institut de droit international,

: www.idi-iil.org/fr/. , Session de

Stockholm, 1928. 62 63 65

AJIL Special Supplement League of Nations Conference Le droit international public de la mer

(1929) 23

Article 12. Rosenne, Gidel,

p. 120.

, p. 295.

, p. 1418.

64

Ibid The Law of Territorial Waters

Article 13.

, Tome III, p. 284. See also Jessup,

., p. 1419.

,

109

Marine Spaces Under Territorial Sovereignty foreign warships in straits used for international navigation, it did not directly address the question of whether foreign warships have the same right of innocent passage in the territorial sea.

66

Overall it may have to be accepted that customary international law is

obscure on this subject.

(b) Treaty law The TSC contains no provision relating to the right of innocent passage of foreign warships. However, Article 14(1) of the TSC stipulates:

Subject to the provisions of these articles, ships of all States, whether coastal or not, shall enjoy the right of innocent passage through the territorial sea.

It must be noted that this provision is under the rubric ‘Rules Applicable to All Ships ’. Further, Article 14(2) sets out that submarines are required to navigate on the surface, when in the territorial sea, and to show their speci

flag. It can be presumed that this provision relates

fically, if not totally, to military submarines. Moreover, in UNCLOS I, a draft provision

which was intended to allow the coastal State to make the passage of warships through the territorial sea subject to previous authorisation or noti

fication

67

was not adopted.

In

addition, Article 23 provides that if a warship fails to comply with the regulations of the coastal State concerning passage through the territorial sea, the coastal State may require the warship to leave the territorial sea. Noting these points, some argue that warships have a right of innocent passage under the TSC.

68

In common with the TSC, the LOSC contains no explicit provision with respect to the right of innocent passage of foreign warships in the territorial sea. However, four points must be noted. First, like Article 14(1) of the TSC, Article 17 of the LOSC, which provides the right of innocent passage, is under the rubric ‘Rules Applicable to All Ships’ . It can be presumed, therefore, that Article 17 is applicable to all ships, including warships. Second, as with Article 14(2) of the TSC, Article 20 of the LOSC requires submarines and other underwater vehicles to navigate on the surface and to show their

flag

in the

territorial sea. Third, as has been seen, Article 19(2) sets out a catalogue of activities which render passage non-innocent. Some of these activities, such as any exercise or practice with

66

ICJ Reports 1949, pp. 27–28. However, several members of the Court addressed this question. See Dissenting Opinion by Judge Azevedo, ibid., p. 99; Dissenting Opinion by Judge Krylov, ibid., p. 74; Individual Opinion by Judge Alvares, ibid., pp. 46–47.

67 68

UN Conference on the Law of the Sea, Of

ficial Records, vol. II, 24 February–27 April 1958, pp. 66–68.

Sir Gerald Fitzmaurice, ‘Some Results of the Geneva Conference on the Law of the Sea: Part I – The Territorial Sea and Contiguous Zone and Related Topics’ (1959) 8 ICLQ, pp. 102–103; O’Connell, The International Law of the Sea, pp. 290–291; E. D. Brown, The International Law of the Sea, vol. I, Introductory Manual (Aldershot, Dartmouth, 1994), p. 72.

110 International Law Governing Jurisdictional Zones weapons, the take-off or landing of aircraft, and the launching or receiving of any military device, relate speci

fically, if not totally, to warships.

Overall, those provisions seem to hint at the right of innocent passage of foreign warships. This interpretation seems to be supported by writers, such as Brown, Carlos Espaliú Berdud, Churchill, Dupuy/Vignes, Johnson, Keyuan, Lucchini/Voelckel, Rothwell/ 69

Stephens, Treves and Vincent.

(c) State Practice State practice is not uniform on this subject. In ratifying the LOSC, some States – for example, Germany and the Netherlands – explicitly declared that the Convention permits innocent passage in the territorial sea for all ships, including foreign warships. Thailand has also taken the position that all foreign ships, including warships, can exercise the right of innocent passage in the territorial sea.

70

Of particular importance is the 1989 Uniform

Interpretation of Norms of International Law Governing Innocent Passage between the United States and the USSR.

71

Paragraph 2 of this bilateral document states:

All ships, including warships, regardless of cargo, armament or means of propulsion, enjoy the right of innocent passage through the territorial sea in accordance with international law, for

fication nor authorisation is required.

which neither prior noti

While, at UNCLOS I, the USSR took the position that the passage of foreign warships through a territorial sea required prior authorisation, the USSR had become a leading naval power by the end of the 1960s and early 1970s. Consequently, the USSR changed its policy in order to ensure the maximum freedom of navigation of warships.

72

fication

However, nearly forty States, mainly developing States, require prior noti prior

authorisation

of

the

passage

of

warships

through

their

territorial

sea.

73

or In

ratifying the LOSC, however, some States – Germany, Italy, the Netherlands and the

69

The International Law of the Sea

Brown,

, p. 66; Carlos Espaliú Berdud,

Le passage inoffensive

, pp. 14–15;

Churchill, ‘The Impact of State Practice ’, pp. 111–112; R.-J. Dupuy, ‘The Sea under National Competence ’, in R.-J. Dupuy and D. Vignes,

A Handbook on the New Law of the Sea

, vol. 1 (Dordrecht, Nijhoff, 1991), p. 259;

D. H. N. Johnson, ‘Innocent Passage, Transit Passage’, in R. Bernhardt (ed.),

International Law

Encyclopedia of Public

, vol. 11 (Amsterdam, North-Holland, 1989), p. 152; Z. Keyuan, ‘Innocent Passage for

ODIL The International Law of the Sea

Warships: The Chinese Doctrine and Practice’ (1998) 29 vol. 2, pp. 250–255; D. R. Rothwell and T. Stephens,

, p. 211. Lucchini and Voelckel,

70 71 72

Droit de la mer

Law of the Sea Bulletin

’

fl isch,

, p. 485; L. Ca

(1983) 39

ASDI

– 117;

Law of the Sea Bulletin

, p. 108.

, pp. 12–13.

E. Franckx, ‘Innocent Passage of Warships: Recent Developments in US-Soviet Relations ’ (1990) 14

Policy 73

(Brussels, Larcier, 2008), pp. 51– 52.

Statement of the Ministry of Foreign Affairs of Thailand (1993) 23 (1989) 14

Marine

‘La convention des Nations Unies sur le droit de la mer adoptée le 30 avril 1982’

, pp. 52–53.

For a list of States restricting innocent passage of foreign warships, see Roach and Smith,

Claims

Excessive Maritime

, pp. 250–251; Churchill, ‘The Impact of State Practice’, pp. 112–113; W. K. Agyebeng, ‘Theory in

Search of Practice: The Right of Innocent Passage in the Territorial Sea’ (2006) 39

Journal

, pp. 396– 398.

,

fi cation du droit international , pp. 116

Portland, Oregon, Hart Publishing, 2016), p. 237; Treves, ‘Codi P. Vincent,

Droit de la mer

, 2nd edn (Oxford and

Cornell International Law

111

Marine Spaces Under Territorial Sovereignty fica-

United Kingdom – expressed the view that claims to prior authorisation and prior noti

tion were at variance with the LOSC. The United States has also protested against most of the claims to both prior authorisation and prior noti whether prior noti

fication.

74

A question thus arises of

fication or prior authorisation is compatible with the LOSC.

When considering this issue, a distinction must be drawn between the requirement of

fication and that of prior authorisation. There appears to be scope to argue that the fication could fall within the scope of Article 21(1)(a) of the LOSC.

prior noti

requirement of prior noti

If this is the case, the right of innocent passage of foreign warships and the requirement of prior noti

fication

of the coastal State could be compatible. However, it appears that the

legality of prior authorisation remains a matter for discussion.

fied

Coastal State action against foreign warships is quali

75

by the sovereign immunity

afforded to warships. However, the coastal State may require any warship to leave its territorial sea if the warship does not comply with the laws and regulations of the coastal State pursuant to Article 30 of the LOSC. Under Article 31, the

flag State is also obliged to

bear international responsibility for any loss or damage to the coastal State resulting from the

non-compliance

commercial

purposes

by

a

with

warship the

laws

or

other

and

governmental

regulations

of

the

ship

operated

coastal

State

for

non-

concerning

passage through the territorial sea or with the provisions of the LOSC or other rules of international law.

(d) The Right to Render Assistance to Persons in Distress A further question is whether a foreign warship has a right to enter into the territorial sea of another State to render assistance to persons in distress, without prior noti

fication to the

coastal State. Article 98 of the LOSC, which applies to the high seas and the EEZ, places an explicit obligation upon every State to render assistance to any person found at sea in danger of being lost. While the LOSC contains no duty to render assistance to any persons in distress in the territorial sea, the offer of such assistance would be consistent with the requirement of the consideration of humanity. Indeed, a temporary entrance of a foreign warship into the territorial sea for the purpose of rendering assistance to persons in distress would pose no threat to the coastal State. Hence there may be room for the view that a foreign warship can render assistance to persons in distress in the territorial sea without noti

fication to the coastal State.

3.4 The Right of Innocent Passage of Foreign Nuclear-Powered Ships and Ships Carrying Inherently Dangerous or Noxious Substances Passage

of

foreign

nuclear-powered

ships

and

ships

carrying

hazardous

cargoes

has

recently attracted growing attention in the international community. In particular, sea shipments of highly radioactive or radiotoxic nuclear materials are becoming a matter of

74 75

Excessive Maritime Claims, pp. 243 –252; Churchill, ‘The Impact of State Practice’, p. 114. Ibid., pp. 113–114; Rothwell and Stephens, The International Law of the Sea, p. 238. Roach and Smith,

112 International Law Governing Jurisdictional Zones serious concern to coastal States because these materials may cause widespread and longterm contamination of the marine environment in the event of an accident. In this regard, Article 23 of the LOSC provides:

Foreign nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances shall, when exercising the right of innocent passage through the territorial sea, carry documents and observe special precautionary measures established for such ships by international agreements.

Examples of international agreements regulating the passage of nuclear-powered ships or ships carrying hazardous substances include the 1962 Convention on the Liability of Operators of Nuclear Ships, the 1973 International Convention for the Prevention of Pollution from Ships as modi

fied

by the 1978 Protocol (MARPOL) and the 1974 Inter-

national Convention for the Safety of Life at Sea (SOLAS).

76

It seems beyond doubt that foreign nuclear-powered ships and ships carrying hazardous cargoes enjoy the right of innocent passage through the territorial sea. This is clear from the expression of Article 23, ‘when exercising the right of innocent passage’ . It is also to be noted that this provision is under the rubric ‘ Rules Applicable to All Ships’ . Furthermore, Article 22(2) allows the coastal State to require nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances to con

fine

their

passage to such sea lanes as it may designate or prescribe for the regulation of the passage of ships. However,

passage

of

foreign

nuclear-powered

ships

and

ships

carrying

inherently

dangerous materials, such as long-lived highly radioactive and radiotoxic nuclear materials, creates particular sensitivity associated with environmental protection of coastal States. For instance, when the

Akatsuki Maru

, a Japanese vessel carrying 2,200 pounds

of plutonium, was in transit in 1992 from France to Japan, travelling around the Cape of Good Hope, then going eastward south of Australia and New Zealand, and north through the Paci

finally turning

fic Islands to Japan, South Africa and Portugal requested that the Pacific Pintail carrying twenty-eight logs

Japanese vessel stay out of their EEZs. When the of high-level vitri

fied

nuclear waste in glass blocks was in transit in 1995, States along

the route, i.e. Brazil, Argentina, Chile, South Africa, Nauru and Kiribati, banned the vessel from their EEZs.

77

In practice, some States require prior noti

fi cation or prior authorisation of the passage

of foreign nuclear-powered ships and ships carrying hazardous cargoes through their

76 77

For MARPOL, see Chapter 8, section 6.1 of this book. J. M. Van Dyke, ‘Applying the Precautionary Principle to Ocean Shipments of Radioactive Materials’, (1996) 27

ODIL

, pp. 380 and 386; D. B. Dixon, ‘Transnational Shipments of Nuclear Materials by Sea: Do Current

Safeguards Provide Coastal States a Right to Deny Innocent Passage?’ (2006) 16

Law and Policy

, pp. 76– 77.

Journal of Transnational

113

Marine Spaces Under Territorial Sovereignty territorial 79

States.

78

sea.

However,

those

claims

have

encountered

opposition

from

several

Thus a question analogous to that of foreign warships has been raised with

regard to the navigation of foreign nuclear-powered ships and ships carrying hazardous cargoes. A requirement of prior noti

fication

is consistent with the LOSC. As noted, the coastal

State may require ‘tankers, nuclear-powered ships and ships carrying nuclear or other

fine their passage to such

inherently dangerous or noxious substances or materials ’ to con sea lanes and traf

fic separation schemes as it may designate or prescribe for the regulation

of the passage of ships by virtue of Article 22(1) and (2). If the coastal State is not entitled to know the passage of those ships, arguably that State cannot exercise its right set out in these

provisions.

On

the

other

hand,

it

is

debatable

whether

a requirement

of

prior

authorisation is compatible with the LOSC because such a requirement amounts to denial of the right of innocent passage of foreign nuclear-powered ships and ships carrying hazardous cargoes.

80

In this regard, the UN General Assembly noted that States should maintain dialogue and consultation, in particular under the auspices of the International Atomic Energy Agency and the IMO, with the aim of improved mutual understanding, con

fidence-building

and

enhanced communication in relation to the safe maritime transport of radioactive materials; and that States involved in the transport of such materials are urged to continue to engage in dialogue with small island developing States and other States to address their concerns.

81

3.5 The Rights of the Coastal State Concerning Innocent Passage

Articles 21, 22 and 25 of the LOSC provide rights of the coastal State with respect to innocent passage. First, Article 21(1) stipulates that the coastal State possesses the legislative jurisdiction relating to innocent passage through the territorial sea, with respect to all or any of the following:

78

According to Churchill, at least nine parties to the LOSC require prior authorisation: Bangladesh, Maldives, Oman, Samoa, Seychelles, Yemen, Egypt, Malaysia and Saudi Arabia. Two non-parties to the LOSC, Iran and Syria, also require prior authorisation. Further, six parties to the LOSC, namely Canada, Djibouti, Libya, Malta, Pakistan and Portugal, require prior noti requires prior noti

fication. Churchill,

fication, and one non-party, the United Arab Emirates,

‘The Impact of State Practice’, pp. 115–116. See also T. Scovazzi, ‘The

Evolution of International Law of the Sea: New Issues, New Challenges’ (2000) 286 79

Roach and Smith,

Excessive Maritime Claims

RCADI

, pp. 157–158.

, pp. 254–258 and 259 –262. When ratifying or acceding to the

LOSC, Germany, Italy, the Netherlands and the United Kingdom made declarations rejecting claims that a coastal State could require prior noti

fication or authorisation for passage of ships carrying dangerous

substances. Churchill, ‘The Impact of State Practice’, p. 117. 80

Ibid

., p. 115; K. Hakapää and E. J. Molenaar, ‘Innocent Passage–Past and Present ’ (1999) 23

p. 144. 81

UN General Assembly, para. 83.

Oceans and the Law of the Sea

Marine Policy

,

, A/RES/63/111, adopted on 5 December 2008, p. 16,

114 International Law Governing Jurisdictional Zones fic;

(a) the safety of navigation and the regulation of maritime traf

(b) the protection of navigational aids and facilities and other facilities or installations; (c) the protection of cables and pipelines; (d) the conservation of the living resources of the sea; (e) the prevention of infringement of the

fisheries laws and regulations of the coastal State;

(f ) the preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof;

fi

(g) marine scienti c research and hydrographic surveys; (h) the prevention of infringement of the customs,

fiscal, immigration or sanitary laws and

regulations of the coastal State.

Such laws and regulations shall not apply to the design, construction, manning or equipment of foreign ships unless they are giving effect to generally accepted international rules or standards pursuant to Article 21(2). Second, the coastal State is entitled to require foreign ships exercising the right of innocent passage through its territorial sea to use such sea lanes and traf

fic

separation

schemes as it may designate or prescribe for the regulation of the passage of ships by virtue of Article 22(1). In this regard, the coastal State shall take into account: (a) the recommendations of the competent international organisation;

82

(b) any channels customarily used

for international navigation; (c) the special characteristics of particular ships and channels; and (d) the density of traf

fic

pursuant to Article 22(3). Article 22(4) places an obligation

upon the coastal State to clearly indicate such sea lanes and traf

fic separation schemes on

charts to which due publicity shall be given. Third, the coastal State is entitled to take the necessary steps in its territorial sea to prevent passage which is not innocent in conformity with Article 25(1). While this provision does not specify the necessary steps, they could include requesting a delinquent ship to stop certain conduct, requesting a ship to leave the territorial sea, and the intervention of State authorities to board and exclude the ship from its territorial sea.

83

Concerning the preser-

vation of the environment of the coastal State, in particular, Article 220(2) provides that where there are clear grounds for believing that a vessel navigating in the territorial sea of a State has violated laws and regulations of that State during its passage therein, the coastal State may undertake physical inspection of the vessel relating to the violation, and may, where the evidence so warrants, institute proceedings, including detention of the vessel. In the case of ships proceeding to internal waters or a call at a port facility outside internal waters, the coastal State has the right to take the necessary steps to prevent any breach of the conditions to which admission of those ships to internal waters or such a call is subject by virtue of Article 25(2). Article 25(3) further empowers the coastal State to suspend the innocent passage of foreign vessels under

82 83

five conditions:

‘The competent international organisation’, as used in this provision, means the IMO.

Rothwell and Stephens, The International Law of the Sea , p. 233.

115

Marine Spaces Under Territorial Sovereignty (i) suspension must be essential for the protection of its security, (ii) suspension must be temporal, (iii) suspension must be limited to speci

fic areas of its territorial sea,

(iv) suspension must be without discrimination, and (v) suspension shall take effect only after having been duly published.

As the territorial sea is under the territorial sovereignty of the coastal State, theoretically the coastal State may exercise criminal jurisdiction over foreign vessels passing through the territorial sea. In order to pay due regard to the interests of navigation, however, Article 27(1) of the LOSC provides that the criminal jurisdiction of the coastal State ‘should not’ be exercised on board a foreign ship passing through the territorial sea, save only in the following cases:

(a) if the consequences of the crime extend to the coastal State; (b) if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea; (c) if the assistance of the local authorities has been requested by the master of the ship or by a

fi

diplomatic agent or consular of cer of the

flag State; or

fi

(d) if such measures are necessary for the suppression of illicit traf c in narcotic drugs or psychotropic substances.

The phrase ‘ should not’ seems to suggest that the exercise of criminal jurisdiction is not strictly prohibited in other cases. It would seem to follow that the coastal State has a discretion with regard to the exercise of criminal jurisdiction. The restriction of criminal jurisdiction under Article 27(1) does not apply to the case of inward/outward-bound navigation by virtue of Article 27(2). If the master so requests, the coastal State is required to notify a diplomatic agent or consular of

ficer of the flag State before taking any steps

pursuant to Article 27(3). Where a crime has been committed before the ship entered the territorial sea and the ship is only passing through the territorial sea without entering internal waters, however, the coastal State may not exercise criminal jurisdiction over the ship under Article 27(5). This is a mandatory prohibition on the exercise of the criminal jurisdiction of the coastal State in the territorial sea. Article 28 of the LOSC limits the exercise of civil jurisdiction of the coastal State in certain cases. Under Article 28(1), ‘ the coastal State should not stop or divert a foreign ship passing through the territorial sea for the purpose of exercising civil jurisdiction in relation to a person on board the ship’ . The term ‘ should not ’ seems to suggest that the restriction of the civil jurisdiction is a matter of comity.

84

Under Article 28(2), the coastal State may not

levy execution against or arrest the ship for the purpose of any civil proceedings, save only in respect of obligations or liabilities assumed or incurred by the ship itself in the course or for the purpose of its voyage through the waters of the coastal State. However, Article 28(2) is not applicable to inward/outward-bound navigation by virtue of Article 28(3).

84

O’Connell, The International Law of the Sea , vol. 2, p. 874; Fitzmaurice, ‘Some Results ’, p. 107.

116

International Law Governing Jurisdictional Zones

3.6 The Obligations of the Coastal State Concerning Innocent Passage

In light of the importance of sea communication for all States, the LOSC places certain obligations upon the coastal State to ensure the interests of navigation in its territorial sea. First, under Article 24(1) of the LOSC, the coastal State is obliged not to hamper the innocent passage of foreign ships and not to discriminate in form or in fact against the ships of any State or against ships carrying cargoes to, from or on behalf of any State. Second, the coastal State is under the obligation to give appropriate publicity to any danger to navigation under Article 24(2). This obligation follows from the dictum in the

Corfu Channel

85

judgment.

Third, no charge may be levied upon foreign ships by reason only of their passage through the territorial sea pursuant to Article 26.

4 INTERNATIONAL STRAITS

4.1 Legal Framework for International Straits Prior to 1982

In light of the paramount importance of international straits for sea communication, the freedom of navigation through straits has attracted much attention in the international community.

86

A question is whether or not foreign vessels enjoy the right of innocent

passage through international straits between one part of the high seas and another under customary law. The ICJ, in the 1949

Corfu Channel

case, gave a positive answer to this

question, by stating:

It is, in the opinion of the Court, 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.

Unless otherwise prescribed in an

international convention, there is no right for a coastal State to prohibit such passage through 87

straits in time of peace.

Re

flecting the dictum in the Corfu Channel judgment, Article 16(4) of the TSC provided:

There shall be no suspension of the innocent passage of foreign ships through straits which are used for international navigation between one part of the high seas and another part of the high seas or the territorial sea of a foreign State.

85 86

ICJ Reports 1949, p. 22;

in 87

Virginia Commentary, vol. 2, p. 226.

For historical development of rules concerning international straits, see D. R. Rothwell, ‘International Straits’,

Oxford Handbook , pp. 116–118.

Emphasis in original. ICJ Reports 1949, p. 28.

117

Marine Spaces Under Territorial Sovereignty As this provision relates to the right of innocent passage in the territorial sea, it is clear that the right does not comprise the freedom of over

flight. On the other hand, unlike the right of

innocent passage through the territorial sea in general, the exercise of the right through international straits shall not be suspended. To this extent, the right of innocent passage through international straits is more strengthened than the right of innocent passage through the territorial sea in general. In light of the Corfu Channel judgment, it seems that foreign warships also possess the right of non-suspendable innocent passage set out in Article 16(4). As noted earlier, the Corfu Channel judgment referred only to straits ‘ between two parts of the high seas ’ . By referring to straits ‘between one part of the high seas and another part of the high seas or the territorial sea of a foreign State ’, however, Article 16(4) extended the scope of straits. Thus it may be said that Article 16(4) is a result of the development of customary law, not simple codi

fication of the law.

88

4.2 Typology of International Straits Under the LOSC

According to a survey, there are 52 international straits less than 6 nautical miles in width, 153 international straits between 6 and 24 nautical miles in width, and 60 international straits more than 24 nautical miles in width.

89

By establishing the 12-mile territorial sea,

many straits which include a strip of high seas fall within the territorial sea of the coastal States. The ‘ territorialisation’ of international straits would compromise the freedom of over

flight

of (military) aircraft and navigation of foreign warships, including submerged

submarines. Thus maritime States urged the introduction of a new regime relating to the right of

‘ transit

passage’ , which was

finally

embodied in Part III of the LOSC. It is

important to note that the agreement on the 12-mile territorial sea was closely linked to ensuring

the

freedom

of

navigation

and over

flight

through

international

straits.

The

Convention divides international straits into two main rubrics according to the applicability of Part III, namely, straits to which Part III applies and straits outside the scope of Part III (see Table 3.1).

4.3 International Straits Under Part III of the LOSC

First, we shall examine straits where Part III applies. In this regard, it must be noted that Part III does not affect any areas of internal waters within a strait, except where the establishment of a straight baseline in accordance with the method set forth in Article 7 has the effect of enclosing as internal waters areas which had not previously been considered as such.

90

It

would seem to follow that basically Part III applies to international straits as the territorial

88 89

Churchill and Lowe, Law of the Sea , p. 104. A. R. Thomas and J. C. Duncan (eds.), ‘Annotated Supplement to the Commander’s Handbook on the Law of Naval Operations’ (1999) 73 International Legal Studies (Naval War College), pp. 207–208, Table A2– 5.

90

LOSC, Article 35(a).

118

International Law Governing Jurisdictional Zones T A B L E 3 . 1 T Y P O L O G Y O F I N T ER N A T I O N A L S T R A I T S I N T H E L O S C A. Straits where Part III is applied (straits as

B. Straits where Part III is not applied

territorial sea)

$

A.1 Straits where transit passage is applied.

B.1 High seas routes or routes through EEZ through

High seas/EEZ

straits used for international navigation (Art. 36)

High seas/EEZ (Art. 37)

$ $

A.2 Straits where innocent passage is applied. (a) High seas/EEZ

B.2 Straits in which passage is regulated in whole

High seas/EEZ with

or in part by long-standing international

islands (Arts. 38(1), 45(1)(a)) (b) High seas/EEZ

conventions (Art. 35(c))

Territorial sea

(Art. 45(1)(b)) B.3 Straits within archipelagic waters

Territorial sea The high seas or the EEZ

Transit passage Territorial sea

The high seas or the EEZ

Figure 3.1 Transit passage under Article 37

sea. The straits under Part III of the LOSC contain two types of straits: straits to which the regime of transit passage applies and straits to which the right of innocent passage applies. The

first type concerns straits to which the regime of transit passage applies (type A-1,

see Figure 3.1). In this regard, Article 37 provides:

This section applies to straits which are used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.

This provision contains two criteria for identifying international straits under Part III. The

first is the geographical criterion. Such straits are those connecting

‘ one part of the

high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone ’. The second is the functional criterion, namely ‘straits used for international navigation ’. Concerning the relationship between the two criteria, the ICJ, in the

Corfu Channel case, seemed to consider that the geographical criterion provided the primary criterion. In the words of the Court:

119

Marine Spaces Under Territorial Sovereignty fi

It may be asked whether the test is to be found in the volume of traf

c passing through the

Strait or in its greater or lesser importance for international navigation. But in the opinion of the Court the decisive criterion is rather its geographical situation as connecting two parts of the high seas and the fact of this

being used for

91

international navigation.

The functional criterion raises an issue as to how it is possible to identify ‘straits used for international navigation ’. In this regard, it is argued that a strait must actually be used for international navigation as a useful route for international maritime traf the functional criterion. Mere potential utility would be insuf

ficient.

fic in order to meet

92

As will be seen, transit passage applies to the strait between one part of the high seas or an EEZ and another part of the high seas or an EEZ in accordance with Article 38(1). An example of international straits to which the regime of transit passage applies may be provided by the Dover Strait.

93

In some cases, a question arises of whether or not a strait

can be considered as a ‘ transit passage’ strait. One might take the Canadian Northwest Passage through Canada’ s Arctic archipelago as an example.

94

This passage is a series of

connected straits that weave through the maritime features which constitute the Canadian Arctic Archipelago. Recently, growing attention has been paid to the Northwest Passage because the presumed decline in sea ice in the Arctic Ocean may open a navigational route connecting the Atlantic and the Paci

fic through the Northwest Passage. In 1985, Canada

drew straight baselines around its Arctic archipelago and, consequently, the Northwest Passage fell within Canada ’s internal waters. Canada thus rejected ‘any suggestion that the Northwest Passage is such an international strait’ .

95

However, the United States has taken

the position that the Passage is a strait used for international navigation subject to the transit passage regime.

96

The disagreement was circumscribed by the 1988 Agreement on

Arctic Cooperation between Canada and the United States. In this Agreement, the United States and Canada agreed to ‘undertake to facilitate navigation by their icebreakers in their

91

Emphasis added. ICJ Reports 1949, p. 28. See also, B. B. Jia, The Regime of Straits in International Law (Oxford, Clarendon Press, 1998), p. 39; H. Camios, ‘The Legal Regime of Straits in the 1982 United Nations Convention on the Law of the Sea’ (1987) 205 RCADI, pp. 127 –129.

92

O’Connell, The International Law of the Sea , vol. 1, p. 314; T. Treves, ‘Navigation ’, in Dupuy and Vignes,

A Handbook, p. 951; S. N. Nandan and D. H. Anderson, ‘Straits Used for International Navigation: A Commentary on Part III of the United Nations Convention on the Law of the Sea 1982’ (1989) 60 BYIL, p. 168. See also Jia, The Regime of Straits, pp. 49–52. 93

The United Kingdom and France explicitly declared that unimpeded transit passage applies to the Dover Strait. Joint Declaration on Transit Passage in Straits of Dover, 2 November 1988.

94

Generally on this issue, see D. Pharand, ‘The Arctic Waters and the Northwest Passage: A Final Revisit’ (2007) 38 ODIL, pp, 3 –69; D. R. Rothwell, ‘The United States and Arctic Straits: The Northwest Passage and the Bering Strait’, in S. Lalonde and T. L. McDorman, International Law and Politics of the Arctic Ocean: Essays

in Honour of Donat Pharand (Leiden, Brill/Nijhoff, 2015), pp. 160-179. 95 96

Canadian Reply to the US Government (1970) 9 ILM, p. 612. National Security Presidential Directive and Homeland Security Presidential Directive, NSPD-66/HSPD-25, 9 January 2009. This document is available at: http://fas.org/irp/offdocs/nspd/nspd-66.htm.

120 International Law Governing Jurisdictional Zones 97

respective Arctic waters and to develop cooperative procedures for this purpose ’ .

The

Agreement also maintains the position of both parties by providing in Article 4 that:

Nothing in this agreement of cooperative endeavour between Arctic neighbours and friends nor any practice thereunder affects the respective positions of the Governments 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.

A similar question arises with regard to the legal status of the Northeast Passage, north of Russia.

98

By decree of 15 January 1985 the Soviet Union established straight baselines in

the Arctic Ocean.

99

As a consequence, major straits which may be portions of the Northeast

Passage or the Northern Sea Route became part of Russian internal waters. Nonetheless, the United States asserted that the Northern Sea Route constitutes international straits. light of the relatively limited usage of foreign-

100

In

flagged vessels passing through these straits,

however, some doubts were expressed by writers regarding whether the straits can be considered as those ‘ used for international navigation’ where the right of transit passage 101

applies.

In any case the Russian Federation adopted a series of national legislations 102

concerning the Northern Sea Route, such as the Federal Law of 28 July 2012 Navigation in the Water Area of the Northern Sea Route.

103

and Rules of

In particular, the 2013 Rules of

Navigation sets out the procedure for obtaining permission to navigate the Northern Sea Route.

97 98

104

Article 3. For the text of the Agreement, see (1989) 28

ILM,

pp. 142–143.

E. Franckx, ‘New Development in the North-east Passage’ (1991) 6

Coastal Law,

International Journal of Estuarine and

pp. 33–40; L. Tymchenko, ‘The Northern Sea Route: Russian Management and Jurisdiction

over Navigation in Arctic Seas’, in A. G. Oude Elferink and D. R. Rothwell (eds.),

Polar Maritime Delimitation and Jurisdiction (The

Fayette, ‘Oceans Governance in the Arctic’ (2008) 23

the Arctic

The Law of the Sea and

Hague, Brill/Nijhoff, 2001), pp. 269 –291; L. A. de La

IJMCL,

pp. 545– 546; M. Byers,

(Cambridge University Press, 2013), pp. 143 –150. See also R. D. Brubaker,

International Law and Russian Arctic Straits

(Leiden, Brill/Nijhoff, 2005). 99

The decree is available at: www.un.org/Depts/los/LEGISLATIONANDTREATIES/STATEFILES/RUS.htm. See also T. Scovazzi, ‘New Developments Concerning Soviet Straight Baselines’ (1988) 3

Estuarine and Coastal Law, pp. 37– 43; Arctic’ (1999) 20 ODIL, pp. 191–233. 100 101

International Journal of

see R. D. Brubaker, ‘The Legal Status of the Russian Baselines in the

Excessive Maritime Claims , pp. 312 et seq . See also pp. 495– 496. International Law and the Arctic , pp. 148–149; Tymchenko, ‘The Northern Sea

Roach and Smith, Byers,

Churchill and Lowe,

Law of the Sea,

Route’, p. 280;

p. 106. If straits enclosed by the straight baselines became Russian

internal waters, the applicability of Article 8 of the LOSC is at issue. 102

The Federal Law of 28 July 2012, N 132-FZ ‘On Amendments to Certain Legislative Acts of the Russian Federation Concerning State Regulation of Merchant Shipping on the Water Area of the Northern Sea Route’. Unof

ficial English translation is available at: www.nsra.ru/en/ofi tsialnaya_informatsiya/zakon_o_

smp.html. 103

Unof

fi cial English translation is available at: www.nsra.ru/en/ofitsialnaya_informatsiya/pravila_

plavaniya.html. 104

Ibid.,

Part II. Further, see E. Franckx, ‘The “New” Arctic Passages and the “Old” Law of the Sea’, in H.

Ringbom (ed.),

Jurisdiction Over Ships: Post-UNCLOS Developments in the Law of the Sea

(Leiden, Brill/

Nijhoff, 2015), pp. 194 –216; J. J. Solski, ‘New Developments in Russian Regulation of Navigation on the Northern Sea Route’ (2013) 4

Arctic Review on Law and Politics,

pp. 90–119.

121

Marine Spaces Under Territorial Sovereignty State A

State C

Territorial sea

Innocent passage

The high seas or the EEZ

State B

Figure 3.2 Innocent passage under Article 45(1)(b)

In addition to this, some mention should be made of the Straits of Malacca and Singapore. Traf

fic transiting the Straits of Malacca and Singapore is heavy because they

form one of the world ’s major choke points for international trade and commerce. The Joint Statement of the Governments of Indonesia, Malaysia and Singapore of 16 November

1971

stated

that

‘ the

Straits

of

Malacca

and

Singapore

are

not

international

straits while fully recognising their use for international shipping in accordance with 105

the principle of innocent passage ’ .

Later, however, these three States became parties

to the LOSC. As a consequence, one can say that transit passage presently applies to the Straits of Malacca and Singapore in accordance with relevant provisions of the Convention.

106

A second type relates to straits to which the right of innocent passage applies (type A-2, see Figures 3.2 and 3.3). Such straits include:

• straits which are excluded from the application of the regime of transit passage under

Article 38(1) of the LOSC, and • straits between a part of the high seas or an EEZ and the territorial sea of a foreign State.

‘ Straits which are excluded from Article 38(1)’ are straits formed by an island of a State

bordering the strait and its mainland, and there exists seaward of the island a route through the high seas or through an EEZ of similar convenience with respect to navigational and hydrographical characteristics. A good example is the Messina Strait. Examples of ‘ straits between a part of the high seas or an EEZ and the territorial sea of a foreign State ’ are the Tiran Strait and the Gulf of Aquaba.

105 106

Brown, The International Law of the Sea, vol. 2, p. 89. It appears that this view can also be supported by Article 311(2) of the LOSC. According to Mahmoudi, no con

flict of views has been reported with regard to transit passage through the Straits of Malacca and

Singapore in recent years. S. Mahmoudi, ‘Transit Passage ’, in Max Planck Encyclopedia, para. 29. See also José A. de Yturriaga, Straits Used for International Navigation: A Spanish Perspective (Dordrecht, Nijhoff, 1991), p. 318.

122

International Law Governing Jurisdictional Zones State A

Territorial sea

Innocent passage

The high seas or the EEZ

The high seas or the EEZ Island of State A

Figure 3.3 Innocent passage under Articles 38(1), 45(1)(a)

4.4 International Straits Outside the Scope of Part III of the LOSC

The second rubric concerns straits to which Part III of the LOSC does not apply. Three types of straits are included in the rubric. First, under Article 36 of the LOSC, Part III does not apply to straits used for international navigation which contain a route through the high seas or through an EEZ of similar convenience with respect to navigational and hydrographical characteristics (type B-1).

107

Article 36 appears to imply that if a route through the high seas or through an EEZ in the international strait is not convenient with respect to navigational and hydrographic characteristics, Part III will apply to the territorial sea within the strait. In relation to this, it is interesting to note that Japan has limited its territorial sea claim in

five international straits,

namely the Soya Strait, the Tsugaru Strait, the Tsushima Eastern Channel, the Tsushima Western Channel and the Osumi Strait, creating a corridor of the EEZ in the middle of these straits. As a result, these

five straits pertain to a strait

‘which contains a route through an

EEZ of similar convenience’ under Article 36 of the LOSC.

108

Second, Part III does not apply to straits in which passage is regulated in whole or in part by long-standing international conventions in force speci

fically

relating to such straits

pursuant to Article 35(c) (type B-2). While the LOSC does not specify the straits to which Article 35(c) applies, examples may be brie (i)

The Turkish Straits

fly summarised as follows:

: these straits include the Dardanelles, the Sea of Marmara, and the

Bosphorus, which connect the Black Sea and the Aegean Sea. The Turkish Straits are governed by the 1936 Convention Regarding the Régime of the Straits (Montreux Convention).

109

The Convention contains a set of special rules for, inter alia, the free passage of

warships, merchant vessels and authorisation for civil aviation. (ii)

The Danish Belts and the Sound

: these straits comprise the Little Belt between Jutland

and the island of Funen, the Great Belt between Funen and the island of Zealand, and the Öresund Sound between Zealand and Sweden. These straits are regulated by the Treaty for

107 109

Ibid

.

108

(1937) 31

Treves, ‘Codi

fication du droit international , pp. 127

AJIL Supplement

, pp. 1– 17.

’

–128.

123

Marine Spaces Under Territorial Sovereignty the Redemption of the Sound Dues between Denmark and European States of 14 March 1857 (the Treaty of Copenhagen).

110

Article I of the Convention provides for a right of

passage of foreign ships through the Danish straits, by stating: ‘No vessel shall henceforth, under any pretext whatsoever, be subject in its passage of the Sound or the Belts to any detention or hindrance.’

111

The rights provided in the Copenhagen Treaty were accorded to

ships of all States, including ships from third States. (iii)

The Strait of Magellan:

112

fic

the Strait between Argentina and Chile connects the Paci

and the Atlantic Oceans. Article 5 of the 1881 Treaty between Argentina and Chile

firmed the neutralisation of the Strait of Magellan and free navigation to the flags of all nations. This was con firmed by Article 10 of the 1984 Treaty of Peace and Friendship con

113

between Argentina and Chile. (iv)

114

The Strait of Gibraltar:

this strait joints the Mediterranean Sea and the Atlantic

Ocean. The free passage of the Strait of Gibraltar was declared in the 1904 Anglo-French Declaration (Article 7),

115

and was con

France and Spain regarding Morocco. (v)

firmed

by Article 6 of the 1912 Treaty between

116

The Åland Strait: upon signing the LOSC, Finland and Sweden declared that Article 35

(c) of the Convention is applicable to the strait between Finland (the Åland Islands) and Sweden. The applicable treaties are the 1921 Convention on the Non-Forti Neutrality of the Åland Islands

117

fication

and

and the 1940 Agreement between Finland and the Soviet

Union concerning the Åland Islands, which obliged Finland to demilitarise the Åland Islands and not to fortify them.

118

The third category of straits to which Part III does not apply involves international straits within archipelagic waters (type B-3). Navigation in the archipelagic waters will be examined in section 5 of this chapter.

4.5 The Right of Transit Passage

Article 38(2) de

110

116

CTS,

fines transit passage as:

p. 357. See also Declaration of Denmark dated 16 November 2004, available at: www.un.org/

Depts/los/convention_agreements/convention_declarations.htm. See also Declaration of Sweden dated 25 June 1996, 111

ibid.

Original in French. Translation by the government of Denmark in the

Submitted by Denmark ,

Great Belt

case,

Counter-Memorial

vol. 1, May 1992, p. 227, para. 675. For a general analysis of the 1857 Treaty,

ibid.,

pp. 223 –226, paras. 662–671. 112

Ibid.,

p. 228, para. 683. According to Bangert, while the Copenhagen Treaty in principle did not apply to

warships, Danish State practice has extended the right of free passage to such ships. K. Bangert, ‘Denmark and the Law of the Sea’, in T. Treves (ed.),

The Law of the Sea: The European Union and its Member States Max Planck

(The Hague, Nijhoff, 1997), p. 106. See also by the same author, ‘Belts and Sund’ in

Encyclopedia ;

A. G. Oude Elferink, ‘The Regime of Passage through the Danish Straits’ (2000) 15

IJMCL,

pp. 555 –566. 113

The Treaty Between Argentine Republic and Chile, Establishing the Neutrality of Straits of Magellan (1909) 3

114 115

AJIL Supplement, pp. 121– 122. ILM, pp. 11–16.

(1985) 24

Declaration between the United Kingdom and France Respecting Egypt and Morocco, 8 April 1904 (1907) 1

AJIL Supplement , 116 118

(1913) 7 144

pp. 6–9.

AJIL Supplement,

BSP,

p. 395.

pp. 81– 93.

117

(1923) 17

AJIL Supplement,

pp. 1 –6.

124 International Law Governing Jurisdictional Zones fl

the exercise in accordance with this Part [III] of the freedom of navigation and over ight solely for the purpose of continuous and expeditious transit of the strait between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.

This provision continues that: ‘the requirement of continuous and expeditious transit does not preclude passage through the strait for the purpose of entering, leaving or returning from a State bordering the strait, subject to the conditions of entry to that State ’. Thus the transit passage includes lateral and inward/outward-bound passage. The right of transit passage in international straits differs from the right of innocent passage in the territorial sea in four respects. First, Article 38(1) makes it clear that all ships and aircraft enjoy the right of transit passage. It is clear, therefore that warships enjoy the right of transit passage. Second, the right of transit passage includes over

flight by all aircraft, including military

aircraft. Third, concerning submarines, the LOSC provides no explicit obligation to navigate on the surface and to show their

flag. Article 39(1)(c) provides that ships and aircraft, while exercising

the right of transit passage, shall ‘ refrain from any activities other than those incident to their normal modes of continuous and expeditious transit unless rendered necessary by

majeure

force

or by distress’ . Arguably, the normal mode for submarines to transit is submerged 119

navigation.

Furthermore, Article 38(2) stipulates that transit passage means the exercise ‘ in

flight. It would follow that

accordance with this Part [III]’ of the freedom of navigation and over

the transit passage is to be subject only to provisions in Part III. There is no cross-reference to the speci

fic provision on innocent passage which requires on-surface navigation. It appears

that this interpretation is also consistent with the

travaux préparatoires for UNCLOS III.

120

In

conclusion, there is room for the view that submarines and other underwater vehicles in transit passage are not required to navigate on the surface and to show their

flag.

Fourth, unlike the right of innocent passage through the territorial sea in general, there shall be no suspension of transit passage by virtue of Article 44. On the other hand, ships and aircraft are required to comply with three types of duties during transit passage: common duties for ships and aircraft in transit passage, duties of ships in transit passage and duties of aircraft in transit passage. First, ships and aircraft are commonly obliged to comply with four duties enunciated in Article 39(1) of the LOSC:

(a) proceed without delay through or over the strait; (b) refrain from any threat or use of force against the sovereignty, territorial integrity or political independence of States bordering the strait, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations;

119

Virginia Commentary, vol. 2, p. 342.

120

Caminos, ‘The Legal Regime of Straits’, pp. 155– 158.

125

Marine Spaces Under Territorial Sovereignty (c) refrain from any activities other than those incident to their normal modes of continuous and expeditious transit unless rendered necessary by

force majeure or

by distress;

(d) comply with other relevant provisions of this Part.

In essence, this provision has parallels in Article 19 of the LOSC. Second, ships in transit passage are under duties to:

(i) comply with generally accepted international regulations, procedures, and practice for safety at sea, including the International Regulations for Preventing Collisions at Sea;

121

(ii) comply with generally accepted international regulations, procedures and practices for the prevention, reduction and control of pollution from ships;

122

(iii) refrain from carrying out any research or survey activities without the prior authorisation of the States bordering straits; (iv) respect applicable sea lanes and traf

123

fic separation schemes;

124

(v) comply with law and regulations adopted by States bordering a strait under Article 42(1) of the LOSC.

125

Third, Article 39(3)(a) and (b) provides that aircraft in transit passage shall:

(a) observe the Rules of the Air established by the International Civil Aviation Organization as they apply to civil aircraft; state aircraft will normally comply with such safety measures and will at all times operate with due regard for the safety of navigation; (b) at all times monitor the radio frequency assigned by the competent internationally

fi

designated air traf c control authority or the appropriate international distress radio frequency.

Concerning Article 39(3)(a), a question arises of whether or not States bordering straits have a right to issue and apply their own air regulations in the airspace of the straits used for international navigation. Upon signature and rati

fication of the LOSC, the Spanish govern-

ment claimed such a right. However, the United States objected to the Spanish interpret126

ation.

127

While opinions of writers are divided,

the Secretariat of International Civil

Aviation Organization (ICAO) took the view that the Rules of the Air as adopted by the Council

121

of

ICAO

would

have

mandatory

application

over

the

straits

and

the

States

LOSC, Article 39(2)(a). The 1974 International Convention for the Safety of Life at Sea (SOLAS) and 1988 Protocol relating thereto would fall within ‘generally accepted international regulations’.

122

LOSC, Article 39(2)(b). The 1973 International Convention for the Prevention of Pollution from Ships and its 1978 Protocol (MALPOL 73/78) would be included in international regulations referred to in this provision.

123 126 127

LOSC, Article 40. Roach and Smith,

124

LOSC, Article 41(7).

125

LOSC, Article 42(4). See also Article 42(5).

Excessive Maritime Claims , pp. 290–293.

Yturriaga is supportive of the Spanish claim, but Caminos considers that the Spanish claim is inappropriate. Yturriaga, p. 229.

Straits Used for International Navigation, pp. 227–232; Caminos, ‘The Legal Regime of Straits’,

126

International Law Governing Jurisdictional Zones bordering the strait cannot

file

an alteration to Rules of the Air under Article 38 of the

Chicago Convention with respect to the airspace over the straits.

128

4.6 Rights and Obligations of Coastal States Bordering Straits

The coastal State has a right to adopt laws and regulations relating to transit passage through straits. Under Article 42(1), those laws and regulations involve:

129

fi

(a) the safety of navigation and the regulation of maritime traf c, as provided in Article 41, (b) the prevention, reduction and control of pollution, by giving effect to applicable international regulations regarding the discharge of oil, oily wastes and other noxious substances in the strait, (c) with respect to

fishing vessels, the prevention of fishing, including the stowage of fishing

gear, and (d) the loading or unloading of any commodity, currency or person in contravention of the customs,

fiscal, immigration or sanitary laws and regulations of States bordering straits.

States bordering straits are required to give due publicity to all such laws and regulations in accordance with Article 41(3). Further, the coastal State bordering straits may designate sea lanes and prescribe traf

fic separation schemes for navigation in straits where necessary to

promote the safe passage of ships pursuant to Article 41(1). Under Article 41(3), such sea lanes and traf

fic

separation schemes shall conform to generally accepted international

regulation. In this connection, Article 41(4) requires that States bordering straits refer proposals to the competent international organisation with a view to their adoption before designating

or

substituting

sea

lanes

or

prescribing

or substituting

traf

fic

separation

schemes. These provisions can help to prevent States which border straits from designating sea lanes and prescribing traf to international shipping.

fic separation schemes in ways that might be disadvantageous

130

The legislative jurisdiction of the coastal State is quali two respects. The

first

fied by paragraph 2 of Article 42 in

limitation is that the laws and regulations of the coastal State

bordering international straits ‘shall not discriminate in form or in fact among foreign 131

ships’ .

The second limitation is that the application of the laws and regulations shall not

‘ have the practical effect of denying, hampering or impairing the right of transit passage’. In

relation to this, there is the question of whether, in the case of the violation of the municipal

128

Virginia Commentary,

vol. 2, pp. 344–345. It must be noted that the Rules of the Air do not automatically

apply to State aircraft, including military aircraft in the airspace over the straits. 129

For a detailed analysis of Article 42(1), see H. Caminos and V. P. Cogliati-Bantz,

Contemporary Challenges and Solutions 130

R. Churchill, ‘Under-Utilised Coastal State Jurisdiction: Causes and Consequences’, in H. Ringbom (ed.),

Jurisdiction over Ships: Post-UNCLOS Developments in the Law of the Sea 131

The Legal Régime of Straits:

(Cambridge University Press, 2014), pp. 243–268.

(Leiden, Nijhoff, 2015), p. 288.

This provision has parallels in Articles 24(1)(b), 25(3), 52(2) and 227 of the LOSC. vol. 2, p. 376.

Virginia Commentary,

127

Marine Spaces Under Territorial Sovereignty law of the State bordering straits, that State could terminate the right of transit passage unilaterally. The cumulative effect of Articles 38(1), 42(2) and 44 seems to suggest that States bordering straits are not allowed to directly deny the right of transit passage merely on grounds of breach of their municipal law.

132

In the case of a violation of the laws and

regulations referred to in Article 42(1)(a) and (b), however, Article 233 of the LOSC explicitly allows the State bordering a strait to exercise its enforcement jurisdiction. Coastal States bordering straits shall undertake the following duties in accordance with Article 44:

(i) not to hamper transit passage, (ii) to give appropriate publicity to any danger to navigation or over

flight within or over

the strait of which they have knowledge, and (iii) not to suspend transit passage.

Moreover, Article 43 of the LOSC requires user States and States bordering a strait to cooperate:

(a) in the establishment and maintenance in a strait of necessary navigational and safety aids or other improvements in aid of international navigation; and (b) for the prevention, reduction and control of pollution from ships.

By way of example, Japan has been promoting international cooperation in the Straits of Malacca and Singapore through the Malacca Strait Council in such

fields as hydrographic

survey, maintenance of aids to navigation, making nautical charts, transfer of technology and clearance of sunken ships.

133

In September 2007, the Cooperative Mechanism on Safety

of Navigation and Environmental Protection in the Straits of Malacca and Singapore was launched as a result of a series of IMO-sponsored meetings on the Straits of Malacca and Singapore. The Cooperative Mechanism aims to promote dialogue and facilitate close cooperation between the littoral States, user States and other stakeholders. The establishment of the Cooperative Mechanism can be considered as a realisation of Article 43 of the LOSC.

132

134

Ibid., p. 377; H. Caminos, ‘The Legal Régime of Straits in the 1982 United Nations Convention on the Law of the Sea’ (1987) 205 RCADI, pp. 147 and 149 –150; T. Treves, ‘Navigation ’, in R.-J. Dupuy and D. Vignes (eds.), A Handbook on the New Law of the Sea, vol. 2 (Dordrecht, Nijhoff, 1991), pp. 967–968; Caminos and Cogliati-Bantz, The Legal Régime of Straits, pp. 268 and 280–281. However, it is not suggested that the State bordering straits cannot exercise its enforcement jurisdiction if the ship should enter that State ’s ports.

133

H. Terashima, ‘Transit Passage and Users’ Contributions to the Safety of the Straits of Malacca and Singapore ’, in M. H. Nordquist, T. T. B. Koh and J. N. Moore, Freedom of Seas, Passage Rights and the 1982 Law of the Sea Convention (Leiden and Boston, Brill/Nijhoff, 2009), pp. 357–368.

134

See IMO, The Cooperative Mechanism between the Littoral States and User States on Safety of Navigation and Environmental Protection in the Straits of Malacca and Singapore, Submitted by Indonesia, Malaysia and Singapore, IMO/SGP 2.1/1, 16 August 2007. See also J. H. Ho, ‘Enhancing Safety, Security, and Environmental Protection of the Straits of Malacca and Singapore: The Cooperative Mechanism’ (2009) 40 ODIL, pp. 233–247.

128 International Law Governing Jurisdictional Zones Finally,

environmental

protection

of

international

straits

should

be

mentioned.

As

international straits are often narrow, the risk of marine casualties is higher than in other marine spaces. Thus the health of waterways is a matter of serious concern for States bordering international straits. In this regard, the question arises as to whether, under Part III of the LOSC, the coastal State has a right to introduce a compulsory pilotage system in an international strait. A case in point is the compulsory pilotage system in the Torres Strait adopted by Australia.

135

The Torres Strait is a strait used for international navigation to which the

regime of transit passage applies. The depths of the Torres Strait are shallow and there are many reefs and shoals within the strait. The strait is also subject to highly complex tidal variation. As a consequence, navigation in that strait is extremely dif

ficult. As the Torres

Strait contains a highly sensitive marine habitat, it became a Particularly Sensitive Sea Area (PSSA) by IMO Resolution MEPC.133(53) adopted on 22 July 2005. Subsequently, Australia introduced in 2006 a compulsory pilotage system for certain vessels within the Torres Strait and Great North East Channel in order to protect sensitive marine habitats. According to Marine Notice 8/2006, the compulsory pilotage system applies to merchant

fied

ships 70 metres in length and over or oil tankers, chemical tankers and lique

gas

carriers, irrespective of size, when navigating the Torres Strait and the Great North East Channel. According to Marine Notice 16/2006, the Australian authorities will not suspend or deny transit passage and will not stop, arrest or board ships that do not take on a pilot while transiting the Strait.

136

However, the owner, master, and/or operator of the ship may

be prosecuted on the next entry into an Australian port, for both ships on voyages to Australian ports and ships transiting the Torres Strait en route to other destinations. Australia ’ s compulsory pilotage system was protested by the United States and Singapore.

137

The controversy relating to the compulsory pilotage system in the Torres Strait

seems to signal a growing tension between the navigational interest of the user States and the environmental interest of States bordering an international strait. Later, Australia changed its position and effectively exempted vessels from compulsory pilotage if they

135

Generally on this issue, see R. C. Beckman, ‘PSSAs and Transit Passage: Australia ’s Pilotage System in the Torres Strait Challenges the IMO and UNCLOS ’ (2007) 38 ODIL, pp. 325–357; J. Roberts, ‘Compulsory Pilotage in International Straits: The Torres Strait PSSA Proposal’ (2006) 37 ODIL, pp. 93–112; S. Bateman and M. White, ‘Compulsory Pilotage in the Torres Strait: Overcoming Unacceptable Risks to a Sensitive Marine Environment ’ (2009) 40 ODIL, pp. 184–203; E. Egede, ‘International Straits, Compulsory Pilotage and the Protection of the Marine Environment’, in R. Caddell and R. Thomas, Shipping, Law and the Marine Environment in the 21st Century: Emerging Challenges for the Law of the Sea

–

Legal Implications and

Liabilities (Oxford, Lawtext Publishing, 2013), pp. 35–52; D. R. Rothwell, ‘Compulsory Pilotage and the Law of the Sea: Lessons Learned from the Torres Strait’, ANU College of Law Research Paper No. 12 –06, pp. 1 –20, available at: http://ssrn.com/abstract=2020781. 136

Australian Maritime Safety Authority, Marine Notice 8/2006, Revised Pilotage Requirements for Torres Strait, 16 May 2006; Marine Notice 16/2006, Further Information on revised Pilotage Requirements for Torres Strait, 3 October 2006.

137

See Statement by Ambassador Vanu Gopala Menon, Permanent Representative, Permanent Mission of the Republic of Singapore to the United Nations, at the General Assembly Debate on Agenda Item 77(A): Oceans and the Law of the Sea, 10 December 2007, available at: www.mfa.gov.sg/content/mfa/overseasmission/ newyork/archive/plenary/2007/200712/press_200712.html.

129

Marine Spaces Under Territorial Sovereignty do not intend to call at an Australian port.

138

Australia ’ s experience seems to suggest that

unilateral action to implement compulsory pilotage could not win support from user States.

139

In this respect, Article 43 of the LOSC merits particular attention with a view to

reconciling such contrasting interests through international cooperation.

140

4.7 Customary Law Character of the Right of Transit Passage Some States, notably the United States and Thailand, are of the view that the right of transit passage is a codi

fication of customary law.

141

However, it must be recalled that the regime

of transit passage of the LOSC is a result of compromise and signi of the 1958 TSC and traditional customary law in this matter.

142

ficantly beyond the rules

In this respect, the closing

statement by the President of UNCLOS III bears quoting:

The argument that, except for Part XI, the Convention [LOSC] codi

fi

es customary law or re

fl

ects

existing international practice is factually incorrect and legally insupportable. The regime of transit passage through straits used for international navigation and the regime of archipelagic 143

sea lanes passage are only two examples of the many new concepts in the Convention.

At present, there appears to be little evidence to prove that ‘extensive and virtually uniform’

opinio juris

State practice and reasonable

to

conclude,

exist with regard to the right of transit passage. It seems

therefore, that

the right

of

transit

passage

is a

new

regime

established by the LOSC, and has yet to become a part of customary international law.

144

4.8 Non-suspendable Innocent Passage Under Article 45(1) of the LOSC, the right of innocent passage applies to straits used for international navigation excluded from the application of Article 38(1), or between a part of the high seas or an EEZ and the territorial sea of a foreign State. Unlike the right of innocent passage through the territorial sea, there shall be no suspension of innocent passage

138

P. Dorling, ‘Reef Safeguard Cut Back ’,

The Age

, 12 September 2011, available at:

www.theage.com.au/environment/conservation/reef-safeguard-cut-back-20110911-1k4b3.html; Rothwell, ‘Compulsory Pilotage ’, p. 17. 139

Ibid

., p. 20. According to Molenaar, ‘[i]n September 2013, Australian authorities advised that no instances of

non-compliance had occurred since issuing Marine Notice 8/2006 ’. E. J. Molenaar, ‘Port and Coastal States ’, in 140 141

Oxford Handbook

, p. 289.

Scovazzi, ‘The Evolution of International Law of the Sea’, p. 186. Roach and Smith,

Excessive Maritime Claims Law of the Sea Bulletin

Thailand (1993) 23 142

Ca

fl isch,

, p. 295; Statement of the Ministry of Foreign Affairs of

, p. 108.

International Law in Theory and Practice Principles Closing Statement by the President

‘La convention des Nations Unies’, p. 52; O. Schachter,

(Dordrecht, Nijhoff, 1991), pp. 285 –286; Brownlie, 143

A/CONF.62/SR.193, 193rd Plenary Meeting,

, p. 271.

pp. 135 –136, para. 48. 144

Jia,

The Regime of Straits

470.

, pp. 207 –208; Caminos and Cogliati-Bantz,

, 10 December 1982,

The Legal Régime of Straits

, pp. 469 –

130

International Law Governing Jurisdictional Zones through international straits by virtue of Article 45(2). As with innocent passage through

flight. Further, submarines and other underwater vehicles are required to navigate on the surface and to show their flag in the territorial sea, aircraft do not enjoy the freedom of over

the exercise of the right of non-suspendable innocent passage.

4.9 Legality of Creation of Bridges in International Straits

A debatable issue is the legality of the creation of bridges in international straits. This

Great Belt case between Finland and Denmark before the On 10 June 1987, the Danish Parliament passed a law on the construction of a fixed across the Great Belt Strait and, in 1989, the Danish authorities adopted the final

question was raised in the 1991 ICJ.

145

link

version of the form of the link. The Danish project involved the construction over the West

fic, and over the East fic, with clearance for passage of

Channel of the Great Belt of a low-level bridge for road and rail traf Channel of a high-level suspension bridge for road traf

65 metres above mean sea level. As a result, the East Channel Bridge would permanently close the Baltic Sea for deep draught vessels over 65 metres in height. Since the early 1970s, Finland, or strictly speaking, more than ten mobile offshore drilling units (MODUs, i.e. drill ships and drill rigs) built in Finland had used the Great Belt. Some of the Finnish MODUs reached a height of close to 150 metres. Once the

fixed

link was created across the Great Belt, these MODUs would no longer be able to pass through the Great Belt, damaging Finnish commercial activity. Thus a dispute arose between Finland and Denmark with regard to the Danish project. On 17 May 1991, the Finnish government

filed

an application instituting proceedings against Denmark before

the ICJ. Further, on 23 May 1991, the Finnish government requested the Court to indicate provisional measures. This dispute gave rise to several interesting questions in the law of the sea, such as the legal status of MODUs (e.g. whether drill rigs can be regarded as ships), the law applicable to the movement of MODUs, the right of coastal States to construct a international strait, the compatibility of the construction of a

fixed

link in an

fixed bridge across the Great

Belt with the right of free passage, the relevance of a comparison of interests on the basis of the equitable principles for the right of passage, the right of passage of reasonably foreseeable ships and acquiescence, etc. In essence, these questions concern the balance between the navigational interest of third States and the interest of the coastal State bordering the strait. In its Order of 29 July 1991, the Court refused to indicate provisional measures primarily because there was no urgency justifying the indication of these measures.

146

Later, on

3 September 1992, only one week before the oral hearings were to open before the Court, Denmark and Finland agreed to settle the dispute. Denmark agreed to pay a sum of

145 146

Case Concerning Passage Through the Great Belt (Provisional Measures), ICJ Reports 1991, p. 12. Ibid., p. 20, para. 38.

131

Marine Spaces Under Territorial Sovereignty 90 million Danish kroner (around US$15 million), and Finland agreed to withdraw its application.147 As a consequence, the Court did not have occasion to pronounce its view on this dispute, and the questions remain open.

5 ARCHIPELAGIC WATERS

5.1 General Considerations

The key concept of archipelagic waters is that a group of islands in mid-ocean, i.e. ‘midocean archipelagos’, should be considered as forming a unit; and that the waters enclosed by baselines joining the outermost points of the archipelago should be under territorial sovereignty. While the question of a special archipelagic regime has been discussed on various occasions since the early twentieth century, neither the 1930 Hague Conference, nor UNCLOS I could resolve this question. The 1958 Geneva Conventions contain no provision with regard to mid-ocean archipelagos or archipelagic waters. At UNCLOS III, the question of a special regime for archipelagos was taken up in the broader context of the new international economic order. A group of archipelagic States – Fiji, Indonesia, Mauritius and the Philippines – vigorously promoted the special regime for archipelagos with a view to safeguarding their interests in the oceans, on the basis of (i) political and security interests, (ii) historical factors, (iii) natural features, (iv) economic interests, (v) environmental protection, and (vi) reasonableness. 148 A legal regime for archipelagic States was gradually formulated, and was finally embodied in Part IV of the LOSC. It may be said that the legal regime for archipelagic waters is a result of the development of international law, not the codi fication of the law.149

fi

5.2 De

nition of an Archipelago, Archipelagic States and Archipelagic Waters

Article 46(a) of the LOSC defines an archipelagic State as ‘a State constituted wholly by one or more archipelagos and may include other islands ’. It follows that States possessing territory in a continent, i.e. mainland States, are not archipelagic States.150 For example, Greece is not an archipelagic State under the LOSC. 147

148

149 150

M. Koskenniemi, ‘Case Concerning Passage Through the Great Belt ’ (1996) 27 ODIL, pp. 274–279. The view of the disputing Parties differed with regard to the legal nature of the payment. While Finland considered it as ‘compensation’, Denmark claimed that payment was made ex gratia. Ibid., p. 279. See also by the same writer, ‘Introductory Note’ (1993) 32 ILM, p. 103. H. W. Jayewardene, The Regime of Islands in International Law (Dordrecht, Nijhoff, 1990), pp. 106–110; Churchill and Lowe, Law of the Sea, pp. 119– 120; T. Davenport, ‘Archipelagic Waters’, in Oxford Handbook, pp. 141–142. Closing Statement by the President, 10 December 1982, pp. 135 –136, para. 48; Cafl isch, ‘La convention des Nations Unies’, p. 61. This point was clearly con firmed by the Annex VII Arbitral Tribunal in the South China Sea Arbitration Award (Merits), para. 573. In this connection, it is relevant to note that at the fourth session of UNCLOS III in 1976, the Revised Single Negotiating Text omitted the provision applying the archipelagic regime to offshore archipelagos. According to the Virginia Commentary, ‘this refl ected the agreement which had been reached that the concept of an archipelagic State would only be applied to States composed of oceanic

132 International Law Governing Jurisdictional Zones A key question is the meaning of the term ‘archipelago’ . Article 46(b) de

fines

‘archipel-

ago ’ as follows:

‘Archipelago’ means 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.

The de

finition contains four criteria which must be present in order for an island group to

constitute an archipelago: (i) the existence of a group of islands, (ii) the compactness or the adjacency of islands, (iii) the existence of an intrinsic geographical, economic and political entity, and (iv) historical practice. Yet these criteria may not be wholly unambiguous. For instance, there is no criterion with regard to the minimum number of islands. It appears that ‘ an economic and political entity’ does not always coincide with ‘a geographical entity’ . The

test of historicity may give rise to the question of how it is possible to demonstrate evidence in this matter.

151

Currently twenty-two States have formally claimed archipelagic status. Those States are: Antigua and Barbuda, Bahamas, Cape Verde, Comoros, Dominican Republic, Fiji, Grenada, Indonesia, Jamaica, Kiribati, Maldives, Marshall Islands, Mauritius, Papua New Guinea, Philippines, Saint Vincent and the Grenadines, São Tomé and Príncipe, Seychelles, Solomon Islands, Trinidad and Tobago, Tuvalu and Vanuatu. All these States are parties to the LOSC.

152

‘ Archipelagic waters’ mean the waters enclosed by the archipelagic baselines drawn in

accordance with Article 47 regardless of their depth or distance from the coast.

153

The

breadth of the territorial sea, the contiguous zone, the EEZ and the continental shelf is to be measured from archipelagic baselines.

154

Thus archipelagic waters must be distinguished

from the territorial sea. Further, Article 50 stipulates that within its archipelagic waters, the archipelagic State may draw closing lines for the delimitation of internal waters in accordance with Articles 9, 10 and 11.

155

The landward areas of these closing lines become

internal waters of an archipelagic State. Hence, it must be stressed that archipelagic waters do not constitute internal waters.

156

Virginia Commentary, vol. II, p. 403. See Traité , pp. 462 and 465. The Modern Concept of the Off-Lying Archipelago in International Law (1985) 23 CYIL,

archipelagos, not to archipelagos belonging to a continental State ’.

also A. Miron, ‘Les eaux archipélagiques’, in Forteau and Thouvenin, 151

L. L. Herman, ‘

’

pp. 181 –185. 152

UNDOALOS, Table of Claims to Maritime Jurisdiction as at 15 July 2011, available at: www.un.org/Depts/ los/LEGISLATIONANDTREATIES/claims.htm. See also Churchill, ‘Under-Utilised Coastal State Jurisdiction’, pp. 290 –291.

153 156

LOSC, Article 49(1).

154

LOSC, Article 48.

155

LOSC, Article 50.

On ratifying the LOSC in 1984, the Philippines declared that the concept of archipelagic waters is similar to the concept of internal waters under the Constitution of the Philippines. However, several States protested the Philippine Declaration. In 2009, the Philippines revised its baselines and brought them into line with the LOSC by adopting a new legislation. Republic Act No. 9522: An Act to Amend Certain Provisions of

fi ne the Archipelagic Baselines of the Law of the Sea Bulletin, p. 32.

Republic Act No. 3046, as Amended by Republic Act No. 5446, to De Philippines, and for Other Purposes. Text in: (2009) 70

133

Marine Spaces Under Territorial Sovereignty Archipelagic baselines

Archipelagic baselines

Archipelagic waters

Archipelagic sea lane passage

Territorial sea Figure 3.4 Archipelagic baselines (illustrative purposes only)

5.3 Archipelagic Baselines

The next issue that needs to be discussed concerns the manner of constructing archipelagic baselines. Article 47(1) of the LOSC provides as follows (see Figure 3.4):

An archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago.

filled in order to

A key point is that the legal criteria of being an archipelago must be ful

construct archipelagic baselines. In other words, a State which does not meet the legal

finition

de

of an archipelagic State is not entitled to draw archipelagic baselines.

157

The

language of this provision also suggests that the establishment of archipelagic baselines is facultative. Article 47 sets out conditions for drawing these baselines in some detail. (i) The archipelagic waters must include main islands, and the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1 pursuant to

157

Herman, ‘The Modern Concept’, p. 186.

134 International Law Governing Jurisdictional Zones Article 47(1). The lower ratio was designed to exclude those archipelagos which are dominated by one or two large islands or islands that are connected only by comparatively small sea areas. This requirement will not allow, for instance, Australia, Cuba, Iceland, Madagascar, New Zealand and the United Kingdom to draw archipelagic baselines. The upper ratio was intended to exclude those archipelagos which are widely dispersed, such as Tuvalu and Kiribati.

158

Article 47(1) does not provide any further precision with regard to 159

the meaning of ‘main islands’ . Thus the meaning could be interpreted in various ways.

(ii) The length of such baselines shall not exceed 100 nautical miles. But 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 pursuant to Article 47(2). It is notable that unlike straight baselines, the maximum length of the archipelagic baselines is

fixed. Considering

that there is no restriction on the number of baseline segments that can be used in order to draw archipelagic baselines, however, it appears possible for the archipelagic State to adjust the number of segments in order to secure the necessary number of very long baselines.

160

(iii) The drawing of such baselines shall not depart to any appreciable extent from the general con

figuration of the archipelago under Article 47(3). This elusive criterion seeks to

ensure a linkage between the unit or entity concept and the technique for drawing archipelagic baselines. (iv) Archipelagic baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them or where a low-tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the nearest island in accordance with Article 47(4). On the other hand, as quoted earlier, Article 47(1) provides that ‘an archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost island and drying reefs ’. At UNCLOS III, it was understood that ‘ drying reefs’ were above water at low tide but submerged at high tide. It would follow that ‘ drying reefs’ 161

are low-tide elevations.

If this is the case, paragraph 1 of Article 47 may seem to

contradict paragraph 4 of the same provision which prohibits drawing archipelagic baselines to and from low-tide elevations. In response to this question, a possible interpretation may be to apply the condition set up in Article 47(4), ‘ unless lighthouses or similar installations ’, to Article 47(1). According to this interpretation, an archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost drying reefs, provided that ‘lighthouses or similar installations which are permanently above sea level have been built on them or where drying reefs are situated wholly or partly at a distance not 162

exceeding the breadth of the territorial sea from the nearest island ’ .

158

V. Prescott and C. Scho 2005), p. 176.

159 160

field, The Maritime Political Boundaries of the World, 2nd edn (Leiden, Brill/Nijhoff,

Baselines, pp. 36 37. field, The Maritime Political Boundaries of the World, p. 174; UNDOALOS, Baselines,

Davenport, ‘Archipelagic Waters’, p. 145; UNDOALOS, Prescott and Scho

–

p. 37. 161 162

Virginia Commentary, vol. 2, p. 430. Ibid., p. 431. The United Kingdom and the United States would seem to support this interpretation. See Text of a Joint Demarche Undertaken by the United Kingdom of Great Britain and Northern Ireland and the

135

Marine Spaces Under Territorial Sovereignty (v) The system of archipelagic baselines shall not be applied by an archipelagic State in such a manner as to cut off from the high seas or the EEZ the territorial sea of another State under Article 47(5). (vi) Archipelagic baselines shall be shown on charts of a scale or scales adequate for ascertaining their position. Alternatively, lists of geographical coordinates of points, specifying the geodetic datum, may be substituted.

163

Furthermore, the archipelagic State shall

give due publicity to such charts or list of geographical coordinates and shall deposit a copy of each such chart or list with the UN Secretary-General in accordance with Article 47(9). In some instances, States that are not archipelagic States but that have offshore islands forming an archipelago claim straight baselines around the outermost perimeter of those islands.

164

However, there appears to be good reason to argue that such baselines are at

variance with Articles 5, 7, 46 and 47 of the LOSC.

165

In fact, the ICJ, in the Qatar/Bahrain

case, made clear that: ‘[T]he method of straight baselines is applicable only if the State has declared itself to be an archipelagic State under Part IV of the 1982 Convention on the Law 166

of the Sea. ’

This view was echoed by the Annex VII Arbitral Tribunal in the South China

Sea arbitration (Merits), which stated:

[T]he grant of permission in Article 7 concerning straight baselines generally, together with the conditional permission in Articles 46 and 47 for certain States to draw archipelagic baselines, excludes the possibility of employing straight baselines in other circumstances, in particular with respect to offshore archipelagos not meeting the criteria for archipelagic baselines. Any other interpretation would effectively render the conditions in Articles 7 and 47 167

meaningless.

In practice, States.

168

claims to

enclose

offshore archipelagos have been protested

by multiple

Furthermore, many States which have offshore archipelagos have not sought to 169

enclose them with straight baselines.

Consequently, it appears that the practice of States

United States of America in relation to the Law of the Dominican Republic Number 66 –07 of 22 May 2007, done on 18 October 2007. 163 164

Article 47(8). E. Franckx and B. Benatar, ‘Straight Baselines Around Insular Formations Not Constituting an Archipelagic State ’, in C. J. Jenner and Tran Truong Thuy (eds.), The South China Sea: A Crucible of Regional Cooperation

or Con 165

flict-Making Sovereignty Claims? (Cambridge University Press, 2016), p. 196.

This view is supported by Jenner and Truong Thuy, ibid ., p. 201; S. D. Murphy, ‘International Law Relating to Islands ’ (2017) 386 RCADI , p. 149; J. A. Roach, ‘Offshore Archipelagos Enclosed by Straight Baselines: An Excessive Claim? ’ (2018) 49 ODIL , p. 176 et seq . When ratifying the LOSC, the Netherlands explicitly declared that: ‘Claims to archipelagic status in contravention of article 46 are not acceptable. The status of archipelagic State, and the rights and obligations deriving from such status, can only be invoked under the conditions of part IV of the Convention.’

166

Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain), ICJ Reports 2001, p. 103, para. 214.

167 168

The South China Sea Arbitration Award (Merits), para. 575. Roach and Smith, Excessive Maritime Claims , p. 208; Miron, ‘Les eaux archipélagiques’, p. 465; Roach, ‘Offshore Archipelagos Enclosed by Straight Baselines ’, pp. 197–202.

169

Ibid., p. 179.

136

International Law Governing Jurisdictional Zones drawing straight baselines around offshore archipelagos is not consistent or widespread.

ficult to consider

Nor is there evidence of opinio juris in this matter. Accordingly, it is dif

that a new customary rule permitting States which are not archipelagic States to wholly enclose offshore archipelagos with straight baselines has already been established in positive international law.

170

5.4 Jurisdiction of Archipelagic States Over Archipelagic Waters

As clearly stated in Article 49(1) and (2) of the LOSC, archipelagic waters are under the territorial sovereignty of the archipelagic State. However, care should be taken in noting that the exercise of the archipelagic State ’ s territorial sovereignty is subject to general international law and speci The

fic provisions under Part IV of the LOSC.

first provision, as the Annex VII Arbitral Tribunal stated in the 2016 Duzgit Integrity

Arbitration, is that ‘under international law, enforcement measures taken by a coastal State in response to activity within its archipelagic waters are subject to the requirement of reasonableness, which encompasses the general principles of necessity and proportional171

ity’ .

The Arbitral Tribunal, in its Arbitral Award of 2016, ruled that Sao Tomé and

Príncipe ’s sanctions upon the Duzgit Integrity were disproportionate and incompatible with 172

the responsibilities of a State exercising sovereignty on the basis of Article 49 of the LOSC.

Another provision, under Article 49(3), is that this sovereignty is exercised subject to Part IV of the LOSC. Under Part IV of the LOSC, the territorial sovereignty of the archipelagic State is quali

fied by the rights of third States in four respects.

First, the archipelagic State is required to respect the traditional

fishing rights of third

States pursuant to Article 51(1) of the LOSC. This provision was intended to meet the concerns of Malaysia with respect to prospective Indonesian archipelagic waters. 25 July 1982, Indonesia and Malaysia concluded a bilateral treaty on this matter.

173

174

On

Under

Article 2(2) of this treaty, in return for Malaysia ’s recognition of Indonesia ’s archipelagic regime, Indonesia accepted the existing rights of Malaysia relating to: (i) the rights of access and communication of Malaysia ’ s ships and aircraft, (ii) the traditional Malaysian traditional

fishing

right of

fishermen in the designated area, (iii) the legitimate interest relating

to submarine cables and pipelines, (iv) the legitimate interest in maintaining law and order through cooperation, (v) the legitimate interest to undertake search and rescue operations, and (vi) the legitimate interest to cooperate in marine scienti

fic research.

Second, under Article 51(2), the archipelagic State is under the obligation to respect existing submarine cables. This provision applies only to existing cables, and no mention is

170 171

Ibid., pp. 187– 190. The Duzgit Integrity Arbitration (Malta v São Tomé and Príncipe), Award of 5 September 2016, para. 254, available at: https://pca-cpa.org/en/cases/53/. See also para. 209. See also the Arctic Sunrise Arbitration (The Netherlands v Russia), Award on the Merits of 14 August 2015, para. 222, available at: https://pca-cpa.org/en/cases/21/.

172 174

The Duzgit Integrity Arbitration Award, para. 261.

173

Virginia Commentary , vol. 2, p. 452.

For the text of the treaty, see UNDOALOS, The Law of the Sea: Practice of Archipelagic States (New York, United Nations, 1992), pp. 144 –155.

137

Marine Spaces Under Territorial Sovereignty made of pipelines. It would seem to follow that the laying of new cables and pipelines depends on the consent of archipelagic States. Third, Article 47(6) provides:

If a part of the archipelagic waters of an archipelagic State lies between two parts of an immediately adjacent neighbouring State, existing rights and all other legitimate interests which the latter State has traditionally exercised in such waters and all rights stipulated by agreement between those States shall continue and be respected.

This situation can be seen between the Malaysian mainland and Sarawak by the extension of Indonesia ’ s archipelagic waters associated with the Kepulauan Anambas and Kepulauan Bunguran.

175

Fourth, by establishing archipelagic waters, some important navigation channels, such as the Sunda and Lombok Straits, fall under the territorial sovereignty of the archipelagic State. If passage through archipelagic waters is not accepted, sea communication will be considerably disturbed. Hence there is a strong need to guarantee the freedom of navigation of foreign vessels in archipelagic waters. Part IV of the LOSC ensures the freedom of navigation through archipelagic waters by providing the right of innocent passage and that of archipelagic sea lanes passage. As will be seen, the territorial sovereignty of an archipelagic

State

is

thus

quali

fied

by

the

rights

of

navigation

of

foreign

ships

in

archipelagic waters.

5.5 The Right of Innocent Passage Through Archipelagic Waters

The right of innocent passage is applicable to archipelagic waters. In this regard, Article 52(1) of the LOSC provides:

Subject to article 53 [right of archipelagic sea lanes passage] and without prejudice to article 50 [delimitation of internal waters], ships of all States enjoy the right of innocent passage through archipelagic waters, in accordance with Part II, section 3 [the right of innocent passage in the territorial sea].

The right of innocent passage in archipelagic waters is essentially parallel to the right of innocent passage in the territorial sea. Accordingly, under Article 52(2), the archipelagic State may suspend temporarily the right of innocent passage in archipelagic waters if such suspension is essential for the protection of its security. Part IV of the LOSC holds no provision concerning submarines and other underwater vehicles. Like the right of innocent passage in the territorial sea, it seems that submarines and other underwater vehicles will be

175

UNDOALOS,

Baselines, pp. 37

–38.

138

International Law Governing Jurisdictional Zones required to navigate on the surface and to show their

flag in archipelagic waters. The right flight.

of innocent passage in archipelagic waters contains no freedom of over

5.6 The Right of Archipelagic Sea Lanes Passage

In addition to the right of innocent passage, all ships and aircraft can enjoy the more extensive right of archipelagic sea lanes passage through archipelagic waters. Article 53(3)

fines the right of archipelagic sea lanes passage:

of the LOSC de

Archipelagic sea lanes passage means the exercise in accordance with this Convention of the rights of navigation and over

fl

ight 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.

The principal elements of the right of archipelagic sea lanes passage can be summarised:

(i) As with the right of transit passage, the right of archipelagic passage applies between one part of the high seas or an EEZ and another part of the high seas or an EEZ. (ii) All ships and aircraft enjoy the right of archipelagic sea lanes passage in such sea lanes and air routes under Article 53(2). The right of archipelagic sea lanes passage contains the rights of over

flight by aircraft. In common with the right of transit

passage, foreign warships and military aircraft have the right of archipelagic sea lanes passage. (iii) Like the right of transit passage, archipelagic sea lanes passage must be the exercise of the rights of navigation and over

flight solely for the purpose of continuous,

expeditious and unobstructed transit.

On the other hand, as Articles 39, 40, 42 and 44 of the LOSC apply

mutatis mutandis

to

archipelagic sea lanes passage by virtue of Article 54, ships and aircraft during their passage are under the duties provided in those provisions. Furthermore, Article 53(5) requires that ships and aircraft in archipelagic sea lanes passage shall not deviate more than 25 nautical miles to either side of such axis lines, i.e. the centre line, during passage. At the same time, this provision holds that such ships and aircraft shall not navigate closer to the coasts than 10 per cent of the distance between the nearest points on islands bordering the sea lane. There are two different interpretations with regard to this provision. According to the

first interpretation, the phrase

‘ 10 per cent of the distance between the

nearest points on islands ’ means the whole width of the channel between the bordering islands. If the channel is 40 nautical miles, for example, the two prohibited zones would each measure 4 nautical miles. As a consequence, the sea lane would be 32 nautical miles wide and a maximum deviation would be 16 nautical miles. According to this interpretation, only if the channel between islands is at least 62.5 nautical miles wide, will the full deviation of 25 nautical miles on either side of the axis line be permissible.

139

Marine Spaces Under Territorial Sovereignty In the second interpretation, the formula set out in Article 53(5) means 10 per cent of the distance from the axis line to the nearest island. In this case, the narrowest channel, which allows ships and aircraft to deviate by 25 nautical miles from the axis of the sea lane, is 55.6 nautical miles wide. In 1996, Indonesia applied the 10 per cent rule in this way in designating its archipelagic sea lanes, and the Maritime Safety Committee of the IMO accepted the submission of Indonesia in 1998. Thus it would appear that this interpretation is supported by the IMO.

176

The archipelagic State may designate archipelagic sea lanes and air routes under Article 53(1) of the LOSC. Article 53 sets out several conditions designating such sea lanes and air routes: (i) The sea lanes for the archipelagic passage and air routes shall traverse the archipelagic waters and the adjacent territorial sea, and shall include normal passage routes used as routes for international navigation or over

flight through or over archipelagic waters, and,

within such routes, so far as ships are concerned, all normal navigational channels in accordance with Article 53(4). (ii) Such sea lanes and air routes shall be de

fined by a series of continuous axis lines from

the entry points of passage routes to the exit points under Article 53(5). An archipelagic State may also prescribe traf

fic separation schemes for the safe passage of ships through fic

narrow channels in such sea lanes pursuant to Article 53(6). Such sea lanes and traf

separation schemes shall conform to generally accepted international regulation under Article 53(8).

fic separ-

(iii) In designating or substituting sea lanes or prescribing or substituting traf

ation schemes, an archipelagic State is obliged to refer proposals to the competent international organisation with a view to their adoption pursuant to Article 53(9). This provision has a parallel in Article 41(4) of the LOSC. As with Article 41(4), the competent international organisation means the IMO.

177

In 1998, an Indonesian partial proposal for archipelagic sea 178

lanes was adopted at the 69th session of the Marine Safety Committee of the IMO.

(iv) Article 53(10) places an obligation upon the archipelagic State to clearly indicate the axis of the sea lanes and the traf

fic

separation schemes on charts. The provisions of the

LOSC concerning the designation of archipelagic sea lanes were further elaborated by IMO

176

Prescott and Scho

field, Maritime Political Boundaries of the World, pp. 179

–180. See also, R. Warner,

‘Implementing the Archipelagic Regime in the International Maritime Organization ’, in D. R. Rothwell and

S. Bateman (eds.),

Navigational Rights and Freedoms and the New Law of the Sea (The Hague, Brill/Nijhoff,

2000), pp. 179 –184. 177

Article 53(9) does not refer to air routes. It would follow that literally speaking, an archipelagic State has no duty to submit proposals of air routes. In practice, however, the involvement of the ICAO will be desirable for safety and coordination reasons. It may be noted that the ICAO’s Rules of the Air are applied to archipelagic sea lanes passage by virtue of Articles 54 and 39(3) of the LOSC.

Virginia Commentary, vol. 2,

p. 479; C. Johnson, ‘A Rite of Passage: The IMO Consideration of the Indonesian Archipelagic Sea-Lanes Submission ’ (2000) 15 178

IJMCL, p. 321.

IMO Marine Safety Committee, Annex 9, Resolution MSC.72(69), Adoption, Designation and Substitution of Archipelagic Sea Lanes, MSC 69/22/Add.1, 19 May 1998. The three archipelagic sea lanes passage approved

firmed under Government Regulation No. 37 of

by the IMO – Archipelagic Sea Lanes I, II and III – were con

2002. On this issue, see D. M. Sodik, ‘The Indonesian Legal Framework on Baselines, Archipelagic Passage, and Innocent Passage ’ (2012) 43

ODIL, pp. 333

–335.

140

International Law Governing Jurisdictional Zones General Provisions on the Adoption, Designation and Substitution of Archipelagic Sea Lanes in 1998.

179

(v) If an archipelagic State does not designate sea lanes or air routes, the right of archipelagic sea lanes passage may be exercised through the routes normally used for international navigation by virtue of Article 53(12). It would seem to follow that even if archipelagic sea lanes or air routes not have been designated by the archipelagic State, submarines will be able to transit the routes normally used for international navigation submerged.

180

On the other hand, there is a concern that a dispute may be raised between

user States and archipelagic States as to what ‘ the routes normally used for international navigation’ are. Furthermore, non-designation of sea lanes or air routes may create confusion as to which right – the right of innocent passage or the right of archipelagic sea lanes passage – applies in the same archipelagic waters.

5.7 Rights and Obligations of an Archipelagic State

Article 44 of the LOSC applies

mutatis mutandis to

archipelagic sea lanes passage.

181

It

follows that archipelagic States shall not hamper archipelagic sea lanes passage and shall

flight within or over the strait

give appropriate publicity to any danger to navigation or over

of which they have knowledge. In addition to this, there shall be no suspension of archipelagic sea lanes passage. An archipelagic State may adopt laws and regulations relating to the prevention of marine pollution in archipelagic waters by virtue of Articles 42(1) and 54 of the LOSC. Ships in archipelagic sea lanes passage are required to comply with generally accepted international regulations, procedures and practice for the prevention, reduction and control of pollution from ships under Articles 39(2)(b) and 54 of the LOSC. Although Articles 220 and 233 of the LOSC give the coastal State additional enforcement

jurisdiction

regulating pollution from ships in the territorial sea and the straits, these provisions contain no reference to archipelagic waters. However, Article 233 refers to Article 42 concerning laws and regulations of States bordering straits relating to transit passage; and Article 42 applies

mutatis mutandis

to archipelagic waters in accordance with Article 54. There182

fore, it seems logical to argue that Article 233 is also applicable to archipelagic waters.

6 CONCLUSIONS

The matters considered in this chapter lead to the following conclusions: (i) Internal waters are under the territorial sovereignty of the coastal State and commercial vessels voluntarily navigating in internal waters are therefore subject to the jurisdiction

179

IMO Marine Safety Committee, Annex 8, Resolution MSC.71(69), Adoption of Amendments to the General Provisions on Ship ’s Routeing (Resolution A.572(14) as Amended), MSC 69/22/Add.1, 19 May 1998, p. 2.

180 182

Law of the Sea, p. 128. Article 54. Virginia Commentary , vol. 2, p. 487. See also, R. P. M. Lotilla, ‘Navigational Rights in Archipelagic Waters: A Commentary from the Philippines ’, in Rothwell and Bateman, Navigational Rights, p. 156. Churchill and Lowe,

181

141

Marine Spaces Under Territorial Sovereignty of the coastal State. Due to the special character of ships as self-contained units, however, coastal States tend to refrain from exercising jurisdiction over the internal discipline of the ship, unless their interests are engaged. In practice, the scope of criminal jurisdiction of the coastal State over foreign merchant ships is speci

fied in bilateral consular conventions.

(ii) The right of ships in distress to enter into a foreign port is a well-established rule of customary international law. However, refuge for ships in distress creates particular sensitivities associated with the environmental protection of offshore areas of the coastal State. In reality, there have been several instances where coastal States have refused an oil tanker in distress refuge to offshore areas. With a view to achieving a sound balance between the humanitarian and security considerations and the environmental interests of the coastal State, it is desirable to create reception facilities to accommodate ships in distress in the waters under their jurisdiction. (iii) The right of innocent passage is an important principle that seeks to reconcile territorial sovereignty and the freedom of navigation. In this regard, the most debatable issue involves the right of innocent passage of foreign warships. This is a matter of sensitive balance between the strategic interest of naval powers and the security interests of coastal States. In light of the sensitivity associated with this subject, State practice is sharply divided on this matter. While, arguably, the requirement of prior noti

fication to enter into

the territorial sea may be compatible with the LOSC, the legality of the requirement of prior authorisation seems to be a matter for discussion. (iv) The tension between the strategic interests of naval powers and the security interests of coastal States also arises with regard to sea communication through international straits. In this regard, the LOSC provides the right of transit passage which favours the freedom of navigation and over

flight of all vessels and aircraft. The right of transit passage seeks to

accommodate the military and strategic interests of naval powers by accepting the freedom

flight by military aircraft.

of navigation of foreign warships and over

(v) The territorial sovereignty of the archipelagic State extends to the archipelagic waters. However, territorial sovereignty over these waters is quali

fied by the following factors set

out in the LOSC:

• • • • • • •

183

the right of innocent passage,

184

the right of archipelagic sea lane passage,

existing rights and all other legitimate interests of neighbouring States,

185

186

all rights stipulated by agreement between neighbouring States, 187

existing agreements with other States, the traditional

fishing rights and other legitimate interests of neighbouring States,

188

and

189

the obligation to respect existing submarine cables.

In particular, the right of innocent passage and archipelagic sea lane passage are of central importance in order to reconcile the territoriality of the archipelagic waters and the freedom of sea communication.

183 187

LOSC, Article 52. LOSC, Article 51(1).

184

LOSC, Article 53.

188

185

LOSC, Article 51(1).

LOSC, Article 47(6). 189

186

LOSC, Article 51(2).

LOSC, Article 47(6).

142 International Law Governing Jurisdictional Zones (vi) The right of transit passage and archipelagic sea lane passage differ from the traditional right of innocent passage through the territorial sea in three respects: • the right of transit passage and archipelagic sea lane passage comprise the freedom of

over

flight by all aircraft, including military aircraft,

• submarines and other underwater vehicles in transit passage and archipelagic sea lane

passage are not required to navigate on the surface and to show their

flag, and

• the right of transit passage and archipelagic sea lane passage cannot be suspended.

(vii) Presently the protection of the offshore environment from vessel-source pollution attracts growing attention from coastal States. As shown by the introduction of the compulsory pilotage system in international straits, it is likely that coastal States will increasingly strengthen the regulation of sea communication with a view to protecting the healthy environment of waterways. Thus the reconciliation between the navigational interest of user States and the environmental interest of coastal States will be increasingly important in the law of the sea.

FURTHER READING 1 Internal Waters A. Chircop, ‘ Ships in Distress, Environmental Threats to Coastal States, and Places of Refuge: New Directions for an Ancient Regime?’ (2002) 33 ODIL, pp. 207 –226. A. Chircop and O. Linden (eds.), Places of Refuge for Ships: Emerging Environmental Concerns of a Maritime Custom (Leiden and Boston, Brill/Nijhoff, 2006). V. D. Degan, ‘Internal Waters’ (1986) 17 NYIL, pp. 3 –44. L. de la Fayette, ‘Access to Ports in International Law’ (1996) 11 IJMCL , pp. 1–22. M. G. Kohen, ‘ Is the Internal Waters Regime Excluded from the United Nations Convention on the Law of the Sea?’, in Lilian del Castillo (ed.), Law of the Sea, from Grotius to the International Tribunal for the Law of the Sea: Liber Amicorum Judge Hugo Caminos (Leiden, Brill/Nijhoff, 2015), pp. 110– 124. S. Hetherington, ‘Places of Refuge for Ships in Need of Assistance: The Work of the Comité Maritime International’ (2010) 24 Ocean Yearbook, pp. 331 –358. A. P. Morrison, Places of Refuge for Ships in Distress: Problems and Methods of Resolution (Leiden, Brill/Nijhoff, 2012). C. F. Murray, ‘Any Port in a Storm? The Right of Entry for Reasons of Force Majeure or Distress in the Wake of the Erika and the Castor ’ (2002) 63 Ohio State Law Journal, pp. 1465–1506. M. H. Nordquist, ‘International Law Governing Places of Refuge for Tankers Threatening Pollution of Coastal Environments ’, in T. M. Ndiaye and R. Wolfrum (eds.), Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas A. Mensah (Leiden and Boston, Brill/Nijhoff, 2007), pp. 497 –519. Y. Tanaka, ‘Key Elements in International Law Governing Places of Refuge for Ships: Protection of Human Life, State Interests, and Marine Environment’ (2014) 45 The Journal of Maritime Law and Commerce, pp. 157 –180.

143

Marine Spaces Under Territorial Sovereignty E. Van Hooydonk, ‘ The Obligation to Offer a Place of Refuge to a Ship in Distress’ (2004) Lloyd ’s Maritime and Commercial Law Quarterly, pp. 347 –374. H. Yang, Jurisdiction of the Coastal State over Foreign Merchant Ships in Internal Waters and the Territorial Sea (Berlin, Springer, 2006).

2 Territorial Sea W. K. Agyebeng, ‘ Theory in Search of Practice: The Right of Innocent Passage in the Territorial Sea’ (2006) 39 Cornell International Law Journal, pp. 371–399. Carlos Espaliú Berdud, Le passage inoffensive des navires de guerre étrangers dans la mer territoriale: portée du régime contenu dans la Convention des Nations Unies sur le droit de la mer (Brussels, Bruylant, 2006). F. Ngantcha, The Right of Innocent Passage and the Evolution of the International Law of the Sea (London and New York, Pinter Publisher, 1990). M. Roscini, ‘The Navigational Rights of Nuclear Ships ’ (2002) 15 Leiden Journal of International Law, pp. 251–265. D. R. Rothwell, ‘Innocent Passage in the Territorial Sea: The UNCLOS Regime and Asia Paci

fic State

Practice ’, in D. R. Rothwell and S. Bateman (eds.), Navigational Rights and Freedoms and the New Law of the Sea (The Hague, Brill/Nijhoff, 2000), pp. 74 –93. J. M. Van Dyke, ‘The Legal Regime Governing Sea Transport of Ultrahazardous Radioactive Materials’ (2002) 33 ODIL, pp. 77 –108.

3 International Straits S. Bateman, ‘ The Compulsory Pilotage Regime in the Torres Strait: A “Melting Pot” of Operational, Legal and Political Considerations’ , in A. Chircop, T. L. McDorman and S. J. Rolston (eds.), The Future of Ocean Regime-Building: Essays in Tribute to Douglas M. Johnston (Leiden, Brill/Nijhoff, 2009), pp. 261–286. S. Bateman and M. White, ‘Compulsory Pilotage in the Torres Strait: Overcoming Unacceptable Risks to a Sensitive Marine Environment ’ (2009) 40 ODIL, pp. 184–203. R. Beckman, ‘The Establishment of a Cooperative Mechanism for the Straits of Malacca and Singapore under Article 43 of the United Nations Convention on the Law of the Sea’ , in A. Chircop, T. L. McDorman and S. J. Rolston (eds.), The Future of Ocean Regime-Building: Essays in Tribute to Douglas M. Johnston (Leiden, Brill/Nijhoff, 2009), pp. 233–259. H. Caminos, ‘The Legal Regime of Straits in the 1982 United Nations Convention on the Law of the Sea’ (1987) 205 RCADI, pp. 9–245. H. Caminos and V. P. Cogliati-Bantz, The Legal Regimes of Straits: Contemporary Challenges and Solutions (Cambridge University Press, 2014). D. Caron and N. Oral (eds.), Navigating Straits: Challenges for International Law (Leiden, Brill/ Nijhoff, 2014). M. George, ‘ Transit Passage and Pollution Control in Straits under the 1982 Law of the Sea Convention ’ (2002) 33 ODIL, pp. 189 –205. B. B. Jia, The Regime of Straits in International Law (Oxford, Clarendon Press, 1998).

fication and Rules of Passage (Heidelberg,

A. G. López Martín, International Straits: Concept, Classi Springer, 2010).

A. Lott, The Estonian Straits: Exceptions to the Strait Regime of Innocent or Transit Passage (Leiden, Brill/Nijhoff, 2018).

144 International Law Governing Jurisdictional Zones S. N. Nandan and D. H. Anderson, ‘Straits Used for International Navigation: A Commentary on Part III of the United Nations Convention on the Law of the Sea 1982’ (1989) 60 BYIL, pp. 159–204. P. J. Neher, ‘Compulsory Pilotage in the Torres Strait ’, in M. H. Nordquist, T. T. B. Koh and J. N. Moore, Freedom of Seas, Passage Rights and the 1982 Law of the Sea Convention (Leiden and Boston, Brill/Nijhoff, 2009), pp. 339 –355. A. X. M. Ntovas, ‘ Straits used for International Navigation’, in IMLI Manual, vol. I, pp. 71–98. D. R. Rothwell, ‘International Straits and Trans-Arctic Navigation ’ (2012) 43 ODIL, pp. 267 –282. ‘International Straits ’, in Oxford Handbook, pp. 114–133. ‘Arctic Shipping: Navigation, Security and Sovereignty in the North American Arctic’ (2017) 1

Brill Research Perspectives in the Law of the Sea, pp. 1 –88. J. M. Van Dyke, ‘Transit Passage Through International Straits’, in A. Chircop, T. L. McDorman, S. J. Rolston (eds.), The Future of Ocean Regime-Building: Essays in Tribute to Douglas M. Johnston (Leiden, Brill/Nijhoff, 2009), pp. 177–232. J. A. de Yturriaga, Straits Used for International Navigation: A Spanish Perspective (Dordrecht, Nijhoff, 1991).

4 Archipelagic Waters K. Baumert and B. Melchior, ‘The Practice of Archipelagic States: A Study of Studies’ (2015) 46 ODIL, pp. 60 –80. R. Beckman, ‘The Establishment of a Cooperative Mechanism for the Straits of Malacca and Singapore under Article 43 of the United Nations Convention on the Law of the Sea’ , in A. Chircop, T. L. McDorman and S. J. Rolston (eds.), The Future of Ocean Regime-Building: Essays in Tribute to Douglas M. Johnston (Leiden, Brill/Nijhoff, 2009), pp. 233–259. R. Cribb and M. Ford (eds.), Indonesia beyond the Water’s Edge: Managing an Archipelagic State (Singapore, Institute of Southeast Asian Studies, 2009). T. Davenport, ‘The Archipelagic Regime’ , in Oxford Handbook, pp. 134–158. E. Franckx and M. Benatar, ‘ Straight Baselines Around Insular Formations not Constituting an Archipelagic State’ , in C. J. Jenner and T. T. Thuy, The South China Sea: A Crucible of Regional Cooperation or Con

flict-making Sovereignty Claims? (Cambridge University Press,

2016), pp. 186– 201. C. Johnson, ‘ A Rite of Passage: The IMO Consideration of the Indonesian Archipelagic Sea-Lanes Submission’ (2000) 15 IJMCL, pp. 317 –332. S. Kopela, Dependent Archipelagos in the Law of the Sea (Leiden, Brill/Nijhoff, 2013). L. Lucchini, ‘ L’Etat insulaire’ (2000) 285 RCADI, pp. 251–392. M. Munavvar, Ocean States: Archipelagic Regimes in the Law of the Sea (Dordrecht, Nijhoff, 1995). J. A. Roach, ‘Offshore Archipelagos Enclosed by Straight Baselines: An Excessive Claim? ’ (2018) 49 ODIL, pp. 176 –202. M. Tsamenyi, C. Scho

fi eld and B. Milligan,

‘Navigation through Archipelagos: Current State

Practice ’, in D. R. Rothwell and S. Bateman (eds.), Navigational Rights and Freedoms and the New Law of the Sea (The Hague, Brill/Nijhoff, 2000), pp. 413 –454. UNDOALOS, The Law of the Sea: Practice of Archipelagic States (New York, United Nations, 1992).

4 Marine Spaces Under National Jurisdiction II: Sovereign Rights Main Issues

This chapter will examine rules governing the contiguous zone, the EEZ and the continental shelf. In the contiguous zone, the coastal State may exercise the control necessary to prevent and punish infringement of its customs,

fiscal, immigration or sanitary laws and

regulations within its territory or territorial sea. While the LOSC contains only succinct provisions respecting the contiguous zone, the legal nature of the coastal State jurisdiction over the zone deserves serious consideration. The

raison d ’être of the institution of the EEZ

and the continental shelf involves the conservation and management of natural resources. In this sense, the EEZ and the continental shelf can be considered as a ‘ resource-oriented zone ’ . Owing to the increasing importance of marine natural resources, these zones are particularly important for coastal States. Presently the extension of the continental shelf to a limit of 200 nautical miles attracts particular attention. This chapter will discuss the following issues in particular:

(i) What is the coastal State jurisdiction over the contiguous zone? (ii) What is the coastal State jurisdiction over the EEZ and the continental shelf? (iii) What is the difference between territorial sovereignty and sovereign rights? (iv) What are the freedoms that all States can enjoy in the EEZ? (v) What residual rights are there in the EEZ? (vi) What are the criteria for determining the outer limits of the continental shelf?

1 INTRODUCTION The legal regimes governing the EEZ and the continental shelf are essentially a result of the aspiration of coastal States to control offshore natural resources. As will be seen, coastal States exercise sovereign rights over the EEZ and the continental shelf for the purpose of exploring and exploiting natural resources. Other States cannot explore and exploit these

145

146

International Law Governing Jurisdictional Zones resources in the EEZ and the continental shelf without the consent of the coastal State. On the other hand, as the EEZ and the continental shelf are part of the ocean as a single unit, legitimate activities in these zones by third States, such as freedom of navigation, over

flight

and the laying of submarine cables and pipelines, must be secured. An essential question thus arises as to how to reconcile the sovereign rights of the coastal State and the freedom of the seas exercised by other States in the EEZ and the continental shelf. With this question as a backdrop, this chapter will address rules governing the EEZ and the continental shelf. As the contiguous zone is part of the EEZ when the coastal State established it, this chapter will also examine rules governing the contiguous zone.

2 CONTIGUOUS ZONE

2.1 The Concept of the Contiguous Zone

The contiguous zone is a marine space contiguous to the territorial sea, in which the coastal State may exercise the control necessary to prevent and punish infringement of its customs,

fiscal, immigration or sanitary laws and regulations within its territory or territorial sea.

1

The development of the contiguous zone was a complicated process of concurrence of different claims by coastal States.

2

While the origin of the concept of the contiguous zone

dates back to the Hovering Acts enacted by Great Britain in the eighteenth century, it was not until 1958 that rules governing the contiguous zone were eventually agreed, enshrined in Article 24 of the TSC. Later, this provision was, with some modi

fications, reproduced in

Article 33 of the LOSC. The landward limit of the contiguous zone is the seaward limit of the territorial sea. Under

Article

33(2)

of the

LOSC, the

maximum

breadth of

the

contiguous

zone

is

24 nautical miles. Article 33 of the LOSC contains no duty corresponding to Article 16, which obliges the coastal State to give due publicity to charts. It would seem to follow that there is no speci the contiguous zone.

3

fic

requirement concerning notice in the establishment of

The contiguous zone is an area contiguous to the high seas under

Article 24(1) of the TSC. Under the LOSC, the contiguous zone is part of the EEZ where the coastal State claims the zone. Where the coastal State does not claim its EEZ, the contiguous

zone

contiguous zone.

1 2

is

part

of

the

high

seas.

At

present,

LOSC, Article 33(1); H. Caminos, ‘Contiguous Zone’, in

Max Planck Encyclopedia ,

The International Law of the Sea,

States

claim

a

para. 1.

vol. 2 (Oxford, Clarendon Press, 1984), pp. 1034

A. V. Lowe, ‘The Development of the Contiguous Zone’ (1981) 52

4

ninety

For an analysis in some detail of the historical development of the contiguous zone, see D. P. O’Connell (I. A. Shearer ed.),

3

some

4

Virginia Commentary,

BYIL,

et seq.;

pp. 109–169.

vol. 2, p. 274.

R. Churchill, ‘Under-Utilised Coastal State Jurisdiction: Causes and Consequences’, in H. Ringbom (ed.),

Jurisdiction over Ships: Post-UNCLOS Developments in the Law of the Sea p. 284.

(Leiden, Brill/Nijhoff, 2015),

147

Marine Spaces Under Sovereign Rights

2.2 Coastal State Jurisdiction Over the Contiguous Zone

Article 33(1), which follows Article 24(1) of the TSC, provides:

1. In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal State may exercise the control necessary to: (a) prevent infringement of its customs,

fiscal, immigration or sanitary laws and regulations

within its territory or territorial sea; (b) punish infringement of the above laws and regulations committed within its territory or territorial sea.

This provision requires three brief comments. First, Article 33(1) contains no reference to internal waters. However, it would be inconceivable that the drafters of this provision intended to exclude the internal waters from the scope of this provision since these waters are under the territorial sovereignty of the coastal State. Thus it appears to be reasonable to consider that internal waters are also included in the scope of ‘ its territory or territorial sea’ . Second, Article 33(1) literally means that the coastal State may exercise only enforcement,

not

legislative,

jurisdiction

within

its

contiguous

zone.

It

would

follow

that

relevant laws and regulations of the coastal State are not extended to its contiguous zone; and that infringement of municipal laws of the coastal State within the zone is outside the scope of this provision. Considering that an incoming vessel cannot commit an offence until it crosses the limit of the territorial sea, it would appear that head (b) of Article 33(1) can apply only to an outgoing ship. By contrast, head (a) can apply only to incoming ships because prevention cannot arise with regard to an outgoing ship in the contiguous zone. Third, Article 33(1) does not make the further speci

fication

with regard to ‘control

necessary to punish infringement ’ of municipal law of the coastal State in its contiguous zone. In this regard, Article 111(1) makes clear that the coastal State may undertake the hot pursuit of foreign ships within the contiguous zone.

5

Article 111(6), (7) and (8) further

provide the coastal State ’s right to stop a ship, the right to arrest the ship, and the right to escort the ship to a port. One can say, therefore, that the coastal State jurisdiction to punish the infringement of its municipal laws in the contiguous zone includes these rights. Article 111(1) does not specify the place where the infringement of laws and regulations of the coastal State must have occurred. In view of maintaining consistency with Article 33(1), it appears reasonable to consider that the coastal State may commence the hot pursuit of a ship only where that ship has already breached the laws and regulation of that State within its territory or territorial sea.

6

On the other hand, literally taken, the incoming ships cannot

have committed a breach of municipal law of the coastal State before they cross the

5

The right of hot pursuit will be discussed in Chapter 5, section 2.7.

6

Lowe, ‘The Contiguous Zone ’, p. 166.

148 International Law Governing Jurisdictional Zones boundary of the territorial sea. In this case, therefore, there may be room for the view that 7

‘ control ’ does not include arrest or forcible taking into port.

The legal nature of the coastal State jurisdiction over the contiguous zone is not free from controversy. According to a literal or restrictive view, the coastal State has only enforcement jurisdiction in its contiguous zone and, consequently, action of the coastal State may only be taken concerning offences committed within the territory or territorial sea of the coastal State, not in respect of anything done within the contiguous zone itself. Sir Gerald Fitzmaurice is a leading writer supporting this view. According to Fitzmaurice, the power 8

over the contiguous zone is ‘ essentially supervisory and preventative’ .

According to a liberal view, the coastal State may regulate the violation of its municipal law within the contiguous zone for some limited purposes. For instance, Oda argued that in the contiguous zone, the coastal State should be entitled to exercise its authority as exercisable in the territorial sea only for some limited purposes of customs or sanitary 9

control. O’ Connell echoed this view.

There appears to be little doubt that a strict reading of Article 33(1) does not allow coastal States to extend legislative jurisdiction to its contiguous zone. There is an exception, however. Concerning the protection of objects of an archaeological and historical nature found at sea, Article 303(2) of the LOSC provides:

2.

fi

In order to control traf

c in such objects, the coastal State may, in applying Article 33,

presume that their removal from the seabed in the zone referred to in that article without its approval would result in an infringement within its territory or territorial sea of the laws and regulations referred to in that article.

This provision relies on a dual legal

fiction.

First, the removal of archaeological and

historical objects is to be regarded as infringement of customs,

fiscal,

immigration or

sanitary laws and regulations of the coastal State. Second, the removal of archaeological and historical objects within the contiguous zone is to be considered as an act within the territory or the territorial sea. By using the dual

fiction, the removal of archaeological and

historical objects within the contiguous zone is subject to the control of the coastal State, including hot pursuit. Thus, as far as the prevention of the removal of archaeological and historical objects is concerned, the coastal State may exercise legislative and enforcement jurisdiction within its contiguous zone by virtue of Article 303(2). Currently the contiguous zone is part of the EEZ when the coastal State claimed the zone. As will be seen, in the EEZ the coastal State may exercise both legislative and enforcement jurisdiction for limited matters provided by the law of the sea. Considering that the

7

I. A. Shearer, ‘Problems of Jurisdiction and Law Enforcement against Delinquent Vessels’ (1986) 35 p. 330. See also O’Connell,

8 9

International Law of the Sea, vol. II, p. 1059.

ICLQ, p. 114. ICLQ, p. 153; O’Connell, International Law of the Sea,

G. Fitzmaurice, ‘Some Results of the Geneva Conference on the Law of the Sea’ (1959) 8 S. Oda, ‘The Concept of the Contiguous Zone’ (1962) 11 vol. II, p. 1060.

ICLQ ,

149

Marine Spaces Under Sovereign Rights contiguous zone is becoming important for the purpose of regulation of illegal traf

fic

in

drugs, claims to legislative jurisdiction in the zone will not cause a serious problem in reality.

10

If this is the case, as a matter of practice, it may not be unreasonable to extend the

legislative jurisdiction of the coastal State over the contiguous zone for the limited purposes provided in Article 33 of the LOSC. In any case, it must be remembered that disputes with regard to the exercise by a coastal State of its jurisdiction over the contiguous zone fall within the scope of the compulsory settlement procedure in Part XV of the LOSC.

3 EXCLUSIVE ECONOMIC ZONE

3.1 Genesis of the Concept of the EEZ

The EEZ is an area beyond and adjacent to the territorial sea, not extending beyond 200 nautical miles from the baseline of the territorial sea.

11

The origin of the concept of

the EEZ may go back to the practice of the Latin American States after World War II.

12

figure of 200 nautical miles appeared in 1947, when Chile (23 June 1947) and Peru (1 August 1947) claimed such an extent for the exercise of full sovereignty. The figure of 200 nautical miles relied on scientific facts: it would enable the Andean States to reach Originally the

the Peruvian and the Humboldt Currents, which were particularly rich in living species. Furthermore, the guano birds, whose deposit is an important fertiliser, feed on anchovy. Scienti

fic research has shown that anchovy larvae had also been located in up to a 187-mile

width. The Andean States thus inferred that a perfect unity and interdependence existed between the sea ’s living resources and the coastal populations. The claim for a 200nautical-mile zone was considered as a means to correct an inequity in

flicted upon them

by geography, namely the lack of a continental shelf. Later, the distance of 200 miles was also claimed by Costa Rica (27 July 1948), El Salvador (7 September 1950) and Honduras (17 January 1951). In 1952, Chile, Ecuador and Peru adopted the Declaration on the Maritime Zone, which later became known as the Declaration of Santiago. In this Declaration, three States proclaimed:

10

‘[A]s

a principle of their international maritime policy that each of them

R. R. Churchill and A. V. Lowe, The Law of the Sea , 3rd edn (Manchester University Press, 1999), p. 138. Some States claim both legislative and enforcement jurisdiction over the contiguous zone. Examples include: India, the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976, Article 5(5); Pakistan, Territorial Waters and Maritime Zone Act, 1976, Article 4(3); Sri Lanka, Maritime Zones Law, No. 22 of 1976, section 4(2). For the text of these provisions, see UNDOALOS, The Law of the Sea: National Legislation on the Territorial Sea, the Right of Innocent Passage and the Contiguous Zone (New York, United Nations, 1995), pp. 160, 257, 354, respectively. Some States claim jurisdiction for the purpose of security within the contiguous zone. But these claims have been protested by the United States. See J. A. Roach and R. W. Smith, Excessive Maritime Claims, 3rd edn (Leiden, Brill/Nijhoff, 2012), pp. 154 –159.

11 12

LOSC, Articles 55 and 57. Concerning the background of the EEZ, see R.-J. Dupuy, ‘The Sea under National Competence ’, in R.-J. Dupuy and D. Vignes, A Handbook on the New Law of the Sea, vol. 1 (Dordrecht, Nijhoff, 1991), pp. 275 et seq.; D. Attard, The Exclusive Economic Zone in International Law (Oxford, Clarendon Press, 1987), pp. 1 et seq.; T. Scovazzi, ‘The Evolution of International Law of the Sea: New Issues, New Challenges’ (2000) 286 RCADI, pp. 96 et seq.; J.-P. Pancracio, Droit de la mer (Paris, Dalloz, 2010), pp. 171 et seq.

150 International Law Governing Jurisdictional Zones possesses exclusive sovereignty and jurisdiction over the area of sea adjacent to the coast of its own country and extending not less than 200 nautical miles from the said coast. ’

13

After

UNCLOS I and II, coastal States expanded their claims to marine spaces. In fact, several Latin American States, such as Ecuador (1966), Argentina (1966), Panama (1967), Uruguay 14

(1969) and Brazil (1970) extended their claims to 200 nautical miles.

Against that background, the Montevideo Declaration on the Law of the Sea was adopted on 8 May 1970.

15

The Declaration recognised the right of coastal States to avail themselves

of the natural resources of the sea adjacent to their coasts and of the soil and subsoil thereof in order to promote the maximum development of their economies and to raise the levels of living of their peoples. At the same time, the Declaration accepted the freedom of navigation and over

flight.

Furthermore, the Declaration of Latin American States on the

Law of the Sea (the Lima Declaration) was adopted on 8 August 1970.

16

The Declaration

essentially followed the Montevideo Declaration, although no mention was made of the 200-nautical-mile limit. As the Caracas session of UNCLOS III approached, it became apparent that the maritime powers would not accept such an extensive territorial sea which would deter economic and military interests. Thus, in 1971, Kenya proposed the concept of the EEZ in the AsianAfrican Legal Consultative Committee at Colombo in a spirit of compromise. Furthermore, in January 1972, Kenya presented a working paper on the concept of the EEZ at the annual meeting of the Asian-African Legal Consultative Committee held in Lagos, Nigeria. The Kenyan working paper encouraged other States to further consider the question, and, in June 1972, this subject was discussed again at the African States Regional Seminar on the Law of the Sea at Yaoundé, Cameroon. The Report of the Yaoundé Seminar, which was adopted unanimously,

firmly

17

supported the establishment of an ‘ economic zone’ .

On 7 August

1972, with overwhelming support from the developing countries, Kenya formally submitted 18

its proposal for a 200-mile EEZ to the UN Seabed Committee.

According to this proposal,

the natural resources of the zone would be placed under the jurisdiction of the coastal State, while freedom of navigation was to be guaranteed. Further to this, a variant of the concept of

fl

the EEZ, the notion of the ‘ patrimonial sea’ , was re ected in the Declaration of Santo Domingo, adopted by the Conference of Caribbean Countries on 9 June 1972.

19

On 2 August 1973, Colombia, Mexico and Venezuela submitted their proposal for the ‘ patrimonial

13 14 15

20

sea’ to the Seabed Committee.

The two concepts effectively merged at

Text in: US Department of State, Limits in the Sea No. 86 , pp. 4– 5. D. R. Rothwell, ‘Fishery Zones and Limits ’, in Max Planck Encyclopedia, para. 11. Text in: (1970) 64 AJIL, pp. 1021 –1023. See also J. A. Vargas, Mexico and the Law of the Sea: Contributions and Compromises (Leiden, Brill/Nijhoff, 2011), pp. 142– 145.

16

UN Doc. A/AC. 138/24 in S. H. Lay, New Directions in the Law of the Sea: Documents, vol. 1 (New York, Oceana, 1973), pp. 237–239. Reproduced in Vargas, Mexico and the Law of the Sea, pp. 180–181.

17 19 20

I (3) of the Report. The text in: (1973) 12 ILM, pp. 210–213. Text in: (1972) 11 ILM, pp. 892–893.

18

(1973) 12 ILM, pp. 33–35.

fi ned as an economic zone not more than 200 nautical miles

The concept of the patrimonial sea can be de

breadth from the base line of the territorial sea where the coastal State will have an exclusive right to all

fl ight there. L. D. M. Nelson,

resources, although there will be freedom of navigation and over Patrimonial Sea’ (1973) 22 ICLQ, p. 668.

‘The

151

Marine Spaces Under Sovereign Rights UNCLOS III. By 1975, the basic concept of the EEZ seemed to be well established.

21

Thus the

legal regime governing the EEZ was embodied in Part V of the LOSC. Unlike the continental shelf, the coastal State must claim the zone in order to establish an EEZ. The vast majority of coastal States have claimed a 200-mile EEZ.

22

In this regard, the

ICJ, in the Libya/Malta case of 1985, stated: ‘ [T]he institution of the exclusive economic zone, with its rule on entitlement by reason of distance, is shown by the practice of States to 23

have become a part of customary law. ’

It is said that the 200-mile EEZ amounts to some 35 –36 per cent of the oceans as a whole. Seven leading bene

ficiaries

of the EEZ are: the United States, France, Indonesia, New

Zealand, Australia, Russia and Japan.

24

It is ironic that leading EEZ bene

ficiaries

are

essentially the developed States. While most States which had previously claimed an exclusive

fishing

maintain an EFZ.

zone (EFZ) have replaced such a zone by an EEZ, several States still

25

Considering that all States claiming an EFZ became parties to the LOSC,

it may be argued that the relevant provisions of the EEZ respecting

fisheries are applicable

to the EFZ. In fact, the Arbitral Tribunal, in the 1986 Dispute Concerning Filleting within the Gulf of St. Laurence economic zone and

between Canada and France, took this view: ‘[T]he concepts of

fishing

zone are regarded as equivalent with respect to the rights 26

exercised therein by a coastal State over the living resources of the sea. ’

3.2 Legal Status of the EEZ

The landward limit of the EEZ is the seaward limit of the territorial sea. The seaward limit of the EEZ is at a maximum of 200 nautical miles from the baseline of the territorial sea. Given that the maximum breadth of the territorial sea is 12 nautical miles, the maximum breadth of the EEZ is 188 nautical miles, that is to say, approximately 370 kilometres. The outer limit lines of the EEZ and the delimitation lines shall be shown on charts of a scale or scales adequate for ascertaining their position. Where appropriate, lists of geographical

21

S. Oda, ‘Exclusive Economic Zone’, in R. Bernhardt (ed.), Encyclopedia of Public International Law, vol. 11 (Amsterdam, North-Holland, 1989), p. 104.

22

According to Churchill, 100 out of the 127 coastal States Parties to the LOSC have claimed an EEZ. R. R. Churchill, ‘The Impact of State Practice on the Jurisdictional Framework contained in the LOS Convention’, in A. G. Oude Elferink (ed.), Stability and Change in the Law of the Sea: The Role of the LOS Convention (Leiden and Boston, Brill/Nijhoff, 2005), p. 126.

23

Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, ICJ Reports 1985, p. 33, para. 34. See also The American Law Institute, Restatement of the Law Third: The Foreign Relations Law of the United States, vol. 2 (American Law Institute Publishers, 1990) § 514, comment (a), p. 56.

24 25

Churchill and Lowe, Law of the Sea, p. 178. These States are: Algeria, Belgium (coterminous with the EEZ), Croatia (ecological and

fisheries protection

zone), Denmark (for the Faroe Islands), Finland, Gambia, Libya, Malta, Norway (Jan Mayen and Svalbard), Papua New Guinea, Spain (in the Mediterranean Sea), Tunisia and the United Kingdom. Ireland declared an EEZ in 2006, while it also declared an EFZ and a Pollution Response Zone. See ‘Sea Fisheries and Maritime Jurisdiction Act 2006’ (2006) 62 Law of the Sea Bulletin, p. 61 et seq. For an analysis of the EFZ, see S. Kvinikhidze, ‘Contemporary Exclusive Fishery Zones or Why Some States Still Claim an EFZ’ (2008) 23 IJMCL, pp. 271–295. 26

(1990) 82 ILR, p. 627, para. 49; 19 RIAA, p. 255, para. 49. See also Kvinikhidze, ‘Contemporary Exclusive Fishery Zones’, p. 289.

152 International Law Governing Jurisdictional Zones coordinates of points may also be substituted for such outer limit lines or delimitation lines pursuant to Article 75(1) of the LOSC. The coastal State is also obliged to give due publicity to such charts or lists of geographical coordinates and shall deposit a copy of each such chart or list with the UN Secretary-General under Article 75(2). The concept of the EEZ comprises the seabed and its subsoil, the waters superjacent to the seabed as well as the airspace above the waters. With respect to the seabed and its subsoil, Article 56(1) provides:

in the exclusive economic zone

[the coastal State has] (a) sovereign rights for the purpose of

exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and

of the seabed and its subsoil.

[emphasis added]

It would follow that the concept of the EEZ includes the seabed and its subsoil. The rights of the coastal State with respect to the seabed and subsoil are to be exercised in accordance with provisions governing the continental shelf by virtue of Article 56(3). Article 58(1) stipulates that ‘ in the exclusive economic zone’ , all States, whether coastal or land-locked, enjoy ‘the freedoms referred to in Article 87 of navigation and over

flight’

(emphasis added). Article 56(1) further provides that the coastal State has sovereign rights with respect to other activities for the economic exploitation and exploration of the zone, 27

such as the production of energy from the water, currents and winds.

One can say,

therefore, that the concept of the EEZ also includes the airspace. Article 55 of the LOSC makes clear that the EEZ ‘ is an area beyond and adjacent to the territorial sea, subject to the speci

fic legal regime established in this Part [V] . Thus, the EEZ ’

is not the territorial sea. Indeed, unlike internal waters and the territorial sea, the territorial sovereignty of the coastal State does not extend to the EEZ. Article 86 of the LOSC states that the provisions of Part VII governing the high seas ‘ apply to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State ’ . Accordingly, the EEZ is not part of the high seas. In fact, the freedoms apply to the EEZ in so far as they are not incompatible with Part V of the LOSC governing the EEZ in accordance with Article 58(2). In this sense, the quality of the freedom exercisable in the EEZ differs from that exercisable on the high seas. Overall it can be concluded that the EEZ is regarded as a sui generis zone, distinguished from the territorial sea and the high seas.

27

The production of energy from wind through the use of offshore installations has been growing, particularly in Europe. While the majority of wind farms are located in the offshore areas less than 50 kilometres, some farms are located further seaward in the EEZ. R. Long, ‘Harnessing Offshore Wind Energy: Legal Challenges and Policy Conundrums in the European Union’, in N. Bankes and S. Trevisanut (eds.),

Energy from the Sea: An International Law Perspective on Ocean Energy (Leiden, Brill/Nijhoff, 2015), p. 134. See also T. Scovazzi and I. Tani, ‘Off-shore Wind Energy Development in International Law’, in J. Ebbesson et al. (eds.), International Law and Changing Perceptions of Security: Liber Amicorum Said Mahmoudi (Leiden, Brill/Nijhoff, 2014), pp. 244–258.

153

Marine Spaces Under Sovereign Rights

3.3 Sovereign Rights Over the EEZ

The key provision concerning coastal State jurisdiction over the EEZ is Article 56 of the LOSC. The

first paragraph of Article 56 provides:

1. In the exclusive economic zone, the coastal State has: (a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds.

It is important to note that the sovereign rights of the coastal State over the EEZ are essentially limited to economic exploration and exploitation (limitation

ratione materiae).

In this respect, the concept of sovereign rights must be distinguished from territorial sovereignty, which is comprehensive unless international law provides otherwise. The concept of sovereign rights can also be seen in the 1958 Geneva Convention on the Continental Shelf. Article 2(2) of the Geneva Convention provides:

The rights referred to in paragraph 1 of this Article [sovereign rights] are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities, or make a claim to the continental shelf, without the express consent of the coastal State.

Although Part V does not contain a similar provision, it may be argued that sovereign rights in the EEZ are essentially exclusive in the sense that no one may undertake these activities or make a claim to the EEZ,

without the express consent of the coastal State. It is true that

third States have the right of access to natural resources in the EEZ.

28

Considering that the

exercise of the right is conditional upon agreement with the coastal State, however, it does not challenge the exclusive nature of the coastal State ’s jurisdiction over the EEZ.

29

With respect to matters provided by the law, the coastal State exercises both legislative and enforcement jurisdiction in the EEZ. In this respect, the key provision is Article 73(1):

The coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone, take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this Convention.

28 29

LOSC, Articles 62(2), 69 and 70. See also Chapter 7, section 3.2. B. Kwiatkowska, 1989), p. 15.

The 200 Mile Exclusive Economic Zone in the New Law of the Sea (Dordrecht, Nijhoff,

154 International Law Governing Jurisdictional Zones While this provision provides enforcement jurisdiction for the coastal State, the reference to ‘ the laws and regulations by it’ suggests that the State also has legislative jurisdiction. In

fact, Article 62(4) prescribes speci

fic contents of the laws and regulations of coastal States

fishing of nationals of other States in the EEZ. Article 73(1) makes no fiscation of vessels. However, ITLOS took the view that this provision may encompass con fiscation of vessels in the EEZ. with regard to

reference to con

30

It is beyond serious doubt that the measures provided under Article 73(1) can be applied to foreign vessels within the EEZ. This is clear from Article 73(4):

In cases of arrest or detention of foreign vessels the coastal State shall promptly notify the

fl

ag

State, through appropriate channels, of the action taken and of any penalties subsequently imposed.

Thus a coastal State jurisdiction within its EEZ contains no limit ratione personae. Overall the sovereign rights of the coastal State in its EEZ can be summarised as follows:

(i) The sovereign rights of the coastal State can be exercised solely within the EEZ. In this sense, such rights are spatial in nature. (ii) The sovereign rights of the coastal State are limited to the matters de

fined by

international law (limitation ratione materiae). On this point, sovereign rights must be distinguished from territorial sovereignty. (iii) However, concerning matters de

fined by international law, the coastal State may

exercise both legislative and enforcement jurisdiction. (iv) The coastal State may exercise sovereign rights over all people regardless of their nationality within the EEZ. Thus sovereign rights contain no limit ratione personae. In this respect, sovereign rights over the EEZ differ from personal jurisdiction. (v) The sovereign rights of the coastal State over the EEZ are exclusive in the sense that other States cannot engage upon activities in the EEZ without consent of the coastal State.

In short, unlike territorial sovereignty, the sovereign rights of the coastal State over the EEZ

lack

comprehensiveness

of

material

scope.

With

respect

to

matters

accepted

by

international law, however, the coastal State can exercise both legislative and enforcement jurisdiction over all people within the EEZ in an exclusive manner. The essential point is that the rights of the coastal State over the EEZ are spatial in the sense that they can be exercised solely within the particular space in question regardless of the nationality of persons or vessels. Thus the coastal State jurisdiction over the EEZ can be regarded as a

30

The M/V Virginia G case (Panama v Guinea-Bissau), Judgment, ITLOS Reports 2014, pp. 78 –79, para. 257. Under Article 73(3) of the LOSC, however, coastal State penalties for violations of

fisheries laws and

regulation in the EEZ may not include imprisonment, in the absence of agreements to the contrary by the State concerned, or any other form of corporal punishment.

155

Marine Spaces Under Sovereign Rights spatial jurisdiction. Due to the lack of comprehensiveness of material scope, this jurisdiction should be called a limited spatial jurisdiction.

31

3.4 Jurisdiction of Coastal States Over the EEZ

(a) General Considerations Under Article 56(1)(b) of the LOSC, the coastal State possesses jurisdiction over matters other than the exploration and exploitation of marine natural resources, namely (i) the establishment and use of arti

ficial islands, installations and structures, (ii) marine scientific

research, and (iii) the protection and preservation of the marine environment. The coastal State also has other rights and duties provided for in this Convention (Article 56(1)(c)). The coastal State jurisdiction with regard to these matters requires some comments.

ficial islands, Article 60 stipulates:

Concerning the coastal State jurisdiction over arti

1. In the exclusive economic zone, the coastal State shall have the exclusive right to construct and to authorize and regulate the construction, operation and use of: (a) arti

ficial islands;

(b) installations and structures for the purposes provided for in article 56 and other economic purposes; (c) installations and structures which may interfere with the exercise of the rights of the 32

coastal State in the zone.

fi fiscal, health, safety and

2. The coastal State shall have exclusive jurisdiction over such arti cial islands, installations and structures, including jurisdiction with regard to customs, immigration laws and regulations.

ficial islands is not must serve for specific

Under Article 60(1), the coastal State ’s exclusive right with regard to arti bound to any speci

fic

purpose, while installations and structures

purposes provided for in Article 60(1)(b) and (c).

31

33

See Chapter 1, section 2.2 of this book. R.-J. Dupuy took the view that the coastal State enjoys ‘power of a spatial type’ in the EEZ. Dupuy, ‘The Sea under National Competence’, p. 293. Combacau considered the coastal State’s jurisdiction over the EEZ as territorial jurisdiction. J. Combacau, Le droit international de la mer: Que sais-je? (Paris, PUF, 1985), p. 21. Bastid considered the continental shelf and the EEZ as maritime domain under limited territorial jurisdiction (la compétence territoriale limitée). S. Bastid, Droit international public: principes fondamentaux, les Cours de droit 1969–1970 (Université de Paris), pp. 814– 815.

32

Article 60(1)(c) seems to literally mean that in the EEZ, the coastal State shall have the exclusive right to construct and to authorise and regulate the construction, operation and use of installations and structures which may interfere with the exercise of the rights of the coastal State in the zone. Yet this will lead to a strange consequence. In this regard, Prölss argued: ‘[T]he sole purpose of Art. 60(1)(c) is to make it impossible for other States to rely on Art. 59 concerning the construction and authorization of installations and structures that serve non-economic purposes, if such course of action may result in interferences with the rights of the coastal State in terms of Art. 56(1).’ A. Prölss, ‘Article 60’, in A. Prölss (ed.), United Nations Convention on the Law of the Sea: A Commentary (Munich, Beck/Oxford, Hart Publishing/Baden-Baden, Nomos, 2017) (hereinafter Prölss, A Commentary), p. 472.

33

Ibid., p. 470.

156 International Law Governing Jurisdictional Zones At the same time, the rights of the coastal State on this matter are subject to certain obligations. Under Article 60(3), due notice must be given of the construction of such arti

ficial islands, installations and structures, and permanent means for giving warning of

their presence must be maintained and any installations or structures which are abandoned or disused shall be removed to ensure safety of navigation, taking into account any generally accepted international standards established in this regard by the competent international organisation, i.e. the IMO. In this regard, the IMO adopted a set of guidelines and standards.

34

Despite the use of the word ‘ shall’ , it can be considered that there is no

absolute duty to entirely remove abandoned or disused installations and structures under Article 60(3).

35

In fact, the last sentence of this provision stipulates:

Appropriate publicity shall be given to the depth, position and dimensions of any installations or structures

not entirely removed.

36

Under Article 60(7), the coastal State may not establish arti

ficial islands, installations and

structures and the safety zones around them ‘ where interference may be caused to the use of recognised sea lanes essential to international navigation ’.

37

It is clear that the coastal State has exclusive jurisdiction, including both legislative and enforcement jurisdiction, over installations and structures for economic purposes by virtue of Article 60. On the other hand, a question arises of whether or not the coastal State also has the jurisdiction to authorise and regulate the construction and use of installations and structures for non-economic purposes, such as military purposes. State practice is not uniform on this particular matter. When ratifying the LOSC, Brazil, Cape Verde and Uruguay made declarations claiming that the coastal State has the exclusive right to authorise and regulate the construction and use of all kinds of installations and structures, without exception, whatever their nature or purpose.

38

By contrast, when ratifying the LOSC, Germany, Italy, the Nether-

lands and the United Kingdom declared that the coastal State enjoys the right to authorise, construct, operate and use only those installations and structures which have economic purposes.

39

While this is a debatable issue, the preferable view appears to be that a dispute

falls within the scope of Article 59 because the LOSC does not explicitly attribute rights or jurisdiction in this matter to a coastal State or to other States.

34

40

IMO, Guidelines and Standards for the Removal of Offshore Installations and Standards on the Continental

Shelf and in the Exclusive Economic Zone (hereinafter the 1989 IMO Guidelines), IMO Resolution A.672(16) of 19 October 1989. Annex. 35

Prölss, ‘Article 60’, p. 474.

36

Emphasis added. See also para. 3.4 of the 1989 IMO Guidelines.

37

For an analysis of rules governing the safety zones, see ibid ., pp. 476–479.

38

A. V. Lowe and S. A. G. Talmon (eds.), The Legal Order of the Oceans: Basic Documents on the Law of the Sea (Oxford, Hart Publishing, 2009), pp. 915, 917 and 967.

39 40

Ibid., pp. 935, 941, 948–949 and 965. See also Churchill, ‘The Impact of State Practice’, p. 136. A. V. Lowe, ‘Some Legal Problems Arising from the Use of the Seas for Military Purposes’ (1986) 10 Marine

Policy p. 180; Churchill, ‘The Impact of State Practice’, p. 136. It is also to be noted that freedom to construct

ficial islands and other installations is not included in Article 58(1) and (2).

arti

157

Marine Spaces Under Sovereign Rights As noted, Article 56(1)(b)(ii) of the LOSC makes clear that the coastal State has jurisdiction with regard to marine scienti

fic research in the EEZ. In relation to this, Article 246(1)

stipulates:

Coastal States, in the exercise of their jurisdiction, have the right to regulate, authorise and conduct marine scienti

fic research in their exclusive economic zone and on their continental

shelf in accordance with the relevant provisions of this Convention.

Marine scienti

fic research in the EEZ and on the continental shelf is to be conducted with

the consent of the coastal State in conformity with Article 246(2). It is clear from Article 56(1)(b)(iii) that in the EEZ, the coastal State has legislative and enforcement jurisdiction with regard to the protection and preservation of the marine environment. Further to this, Articles 210(1) and 211(5) provide legislative jurisdiction of the

coastal

State

concerning

the

regulation

of

dumping

and

vessel-source

pollution.

Moreover, Articles 210(2) and 220 contain enforcement jurisdiction of the coastal State 41

with regard to the regulation of dumping and ship-borne pollution.

(b) Legality of Bunkering in the EEZ of Third States A particular issue which arises in this context concerns the legality of bunkering in an EEZ of a foreign State. The LOSC contains no explicit provision on this subject. This issue was, for the

first time in the ITLOS jurisprudence, raised in the 1999

M/V ‘Saiga’ (No. 2) case

between Saint Vincent and the Grenadines and Guinea. The M/V ‘Saiga’ is a tank vessel

flying

the

flag

of Saint Vincent and the Grenadines. On 28 October 1997, the Saiga,

awaiting the arrival of

fishing vessels to which

it was to supply gas oil, was arrested by

Guinean authorities in its EEZ on the ground that the Saiga violated Law L/94/007 by importing gas oil into the customs radius of Guinea. Criminal proceedings were subsequently instituted by the Guinean authorities against the Master of the Saiga, and the Tribunal of First Instance in Conakry, the Guinean capital, found the Master guilty as charged and imposed on him a

fine. A central question in this case was whether Guinea was

entitled to apply its customs law in its EEZ. In this regard, ITLOS held that, while the coastal State has jurisdiction to apply customs laws and regulations in respect of arti

ficial islands,

installations and structures in the EEZ pursuant to Article 60(2) of the LOSC, the Convention does not empower a coastal State to apply its customs laws in respect of any other parts of the EEZ not mentioned in that provision.

42

A similar dispute was subsequently raised in the 2014 M/V Virginia G case between Panama and Guinea-Bissau. On 20 August 2009, the

41 42

M/V Virginia G, an oil tanker

See also G. Andreone, ‘The Exclusive Economic Zone’, in Oxford Handbook, pp. 176– 177. The M/V ‘ Saiga’ (No. 2) case (Saint Vincent and the Grenadines v Guinea), Judgment, ITLOS Reports 1999, p. 54, para. 127.

158

International Law Governing Jurisdictional Zones

fl ying

flag

the

of

Panama,

supplied

gas

oil

to

fi shing

vessels

fl ying

the

flag

of

Mauritania in the EEZ of Guinea-Bissau. On 21 August 2009, the M/V Virginia G was arrested by the Guinea-Bissau authorities and the tanker, along with its gear, equipment and products on board, was con

fiscated. Panama instituted arbitral proceedings against

Guinea-Bissau pursuant to Annex VII of the LOSC in a dispute concerning the M/V

Virginia G. Later the dispute was transferred to ITLOS. The central question to be addressed by ITLOS was whether Guinea-Bissau, in the exercise of its sovereign rights in respect of the conservation and management of natural resources in its EEZ, had the competence to regulate bunkering of foreign vessels

fishing in this zone. In this regard,

ITLOS took the view that the regulation by a coastal State of the bunkering of foreign vessels

fishing in its EEZ is among those measures which the coastal State may take in

its EEZ to conserve and manage its living resources under Article 56 of the LOSC, read together with Article 62(4) of the Convention. jurisdiction sovereign

over

rights

bunkering of

that

of

State

foreign to

43

According to ITLOS, the coastal State’ s

fishing

vessels

explore,

exploit,

in

its

conserve

EEZ and

derives

from

manage

the

natural

resources. ITLOS also added that the coastal State does not have such competence with regard to other bunkering activities, unless otherwise determined in accordance with the LOSC.

44

3.5 Freedoms of Third States

The next issue to be examined involves legitimate activities by third States in the EEZ.

45

In

this regard, Article 58(1) of the LOSC stipulates:

In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in article 87 of navigation and over

fl

ight and of the laying of submarine cables and pipelines, and other internationally lawful

uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention.

It follows that among the six freedoms enumerated in Article 87 of the LOSC, three

flight and the lying of submarine cables

freedoms of the seas – freedoms of navigation, over

and pipelines – apply to the EEZ. Further, Articles 88 to 115 and other pertinent rules of international law relating to the high seas apply to the EEZ in so far as they are not incompatible with this rule under Article 58(2).

43 44

The M/V Virginia G case, ITLOS Reports 2014, pp. 66–69, paras. 208–217.

Ibid., p. 70, para. 223. See also The M/V ‘ Norstar’ Case (Panama v Italy), ITLOS Case No. 25, ITLOS Reports 2019 (not yet reported), para. 219.

45

The legality of military exercises in the EEZ of another State is discussed in Chapter 11, section 4 of this book.

159

Marine Spaces Under Sovereign Rights However, Article 58(3) requires States to:

have due regard to the rights and duties of the coastal State and shall 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 [V].

It would seem to follow that, unlike on the high seas, the three freedoms of the seas may be quali

fied by coastal State jurisdiction in the EEZ. For instance, overflight in the EEZ for the

purposes of exploration and exploitation is subject to the permission of the coastal State. Navigation of foreign vessels through an EEZ is subject to regulation of the coastal State with respect to marine pollution. Navigation of foreign vessels may also be affected by the presence of arti

ficial

islands and installations of the coastal State. In addition to this,

shipping in the inner 24 miles of the EEZ will be subject to coastal State jurisdiction over its contiguous zone. While the freedom of laying submarine cables and pipelines applies to the EEZ, the delineation of the course of a pipeline in the seabed of the EEZ is subject to the consent of the coastal State in accordance with Article 79(3). To this extent, the freedoms enjoyed by foreign States in the EEZ are not exactly the same as those enjoyed on the high seas.

3.6 Residual Rights

While the LOSC provides rules involving most of the obvious uses of the EEZ, there are some uses of the zone where it remains unclear whether they fall within the rights of the coastal State or other States. Here residual rights in the EEZ are at issue. In this regard, Article 59 provides:

In cases where this Convention does not attribute rights or jurisdiction to the coastal State or to

fl

other States within the exclusive economic zone, and a con

fl

the coastal State and any other State or States, the con

ict arises between the interests of

ict should be resolved on the basis of

equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole.

Under Article 59, there is no presumption in favour of either the coastal State or other States. It would seem to follow that the possible attribution of residual rights is to be decided on a case-by-case basis.

46

Churchill and Lowe,

46

Law of the Sea, p. 176. Concerning residual rights, see S. 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 ’ (2004) 37

RBDI , pp. 325

–418.

160

International Law Governing Jurisdictional Zones An international dispute could well arise with regard to a matter where the LOSC does not specify which States are to have jurisdiction. Such a dispute is to be settled by peaceful means of their own choice pursuant to Articles 279 and 280 of the LOSC. If this is unsuccessful, the dispute is to be referred to the compulsory procedures of dispute settlement in Part XV of the LOSC, unless the dispute relates to limitations and exceptions to the compulsory procedures.

47

3.7 Historic Rights and the EEZ

Finally, it is necessary to address the question of whether a State can claim historic rights within the EEZ of another State.

48

A leading case in this matter is the

South China Sea

Arbitration (Merits). In this case, a particular issue was raised with regard to the legality of China ’ s claimed historic rights to marine spaces encompassed by the so-called ‘ nine dash line ’ in the South China Sea. No article of the LOSC expressly provides for or permits the continued existence of historic rights to the living or non-living resources of the EEZ. An issue at point was whether the Convention nevertheless intended the continued operation of historic rights that are at variance with the Convention.

49

It is beyond serious argument that the coastal State alone has sovereign rights to the living and non-living resources of the EEZ under the Convention.

50

As explained earlier,

the coastal State’ s sovereign rights in the EEZ are exclusive in the sense that other States cannot engage in activities in the EEZ without consent of the coastal State. As provided in Article 58 of the Convention, high seas rights and freedoms apply in the EEZ only to the extent that they are not incompatible with the provisions of Part V of the Convention.

51

Accordingly, the Annex VII Arbitral Tribunal, in its Arbitral Award of 2016, ruled:

[T]the notion of

sovereign

rights over living and non-living resources is generally incompatible

with another State having historic rights to the same resources, if such historic rights are considered exclusive.

52

In the Tribunal ’ s view, the right of other States of access to the surplus of the allowable catch also precludes the possibility that other States have rights in the EEZ of third States in excess of those speci

fied under the Convention.

53

It must also be recalled that reservations

are clearly prohibited under Article 309 of the Convention, to maintain the integrity of the Convention. According to the Tribunal, it is simply inconceivable that the drafters of the Convention anticipated that the resulting Convention would be subordinate to broad claims

47 48 49 50 51

Churchill and Lowe,

Law of the Sea , p. 146.

For historic rights, see Chapter 2, section 2.4(a) of this book.

South China Sea Arbitration Award (Merits), para. 239. South China Sea Arbitration Award (Merits), para. 243. Ibid., para. 241. Emphasis original. Ibid., para. 243. Ibid. See also para. 804. The

LOSC, Article 56(1). See also the 52

53

161

Marine Spaces Under Sovereign Rights of historic rights.

54

The Tribunal thus concluded that ‘the Convention supersedes earlier

rights and agreements to the extent of any incompatibility’ .

55

In other words, the LOSC

overrules historic rights that are incompatible with the Convention.

56

4 CONTINENTAL SHELF

4.1 Genesis of the Concept of the Continental Shelf

Geologically, the continental shelf is an area adjacent to a continent or around an island extending from the low-water line to the depth at which there is usually a marked increase of slope to greater depth.

57

Before World War II, natural resources in the seabed and its

subsoil had attracted little interest between States.

58

However, natural resources in the

seabed and its subsoil, in particular, an extensive reserve of oil, have attracted growing interest since World War II because of the increased demand for petrol. Furthermore, technological progress at the turn of the twentieth century enabled the continental shelf’ s hydrocarbon resources to be extracted from the surface of the sea. Against that background, on 28 September 1945, the United States took the decisive step with the Truman Proclamation to extend its jurisdiction over the natural resources of the continental shelf.

59

The

Truman Proclamation declared:

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 as appertaining to the United States, subject to its jurisdiction and control.

The unilateral action of the United States created a chain reaction, and many States unilaterally extended their jurisdiction towards the high seas. The Latin American States – which have virtually no continental shelf in a geological sense – claimed their full sovereignty over all the seabed at whatever depth and over all the adjacent seas at

54 55

Ibid., para. 254. Ibid., para. 246. The Tribunal’s view is echoed by the 1984 Gulf of Maine judgment. Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v United States of America), Judgment, ICJ Reports 1984, pp. 341–342, para. 235.

56

Symmons thus argued that any historic rights of a non-sovereign and exceptional nature are ‘today of little practical legal value to claimants’. C. R. Symmons, ‘First Reactions to the Philippines v China Arbitration

fi

Award Concerning the Supposed Historic Claims of China in the South China Sea’ (2016) 1 Asia-Paci c

fl

Journal of Ocean Law and Policy, p. 267. Further, see Y. Tanaka, ‘Re ections on Historic Rights in the South China Sea Arbitration (Merits)’ (2017) 32 IJMCL, pp. 458–483. 57 58

finition of the Continental Shelf, p. 44.

UNDOALOS, De

However, in 1942, the United Kingdom concluded a treaty with Venezuela dividing the seabed of the Gulf of Paria for the purpose of the exploitation of the oil

field beneath the Gulf. O Connell, International Law of the ’

Sea, vol. I, p. 470. 59

US Presidential Proclamation No. 2667, Policy of the United States with Respect to the Natural Resources of the Subsoil of the Sea Bed and the Continental Shelf. Reproduced in Lowe and Talmon, Basic Documents , p. 19.

162

International Law Governing Jurisdictional Zones whatever

depth,

to

a distance

of 200 nautical

miles.

While

State practice

was not

consistent until the early 1950s, the vast majority of States were prepared to agree to create a new zone relating to the exploitation of natural resources on the continental shelf with the passage of time.

60

Thus a legal regime governing the continental shelf was, for the

first time, enshrined in

the 1958 Geneva Convention on the Continental Shelf. In this regard, the ICJ, in the 1969

North Sea Continental Shelf cases, took the view that Articles 1 to 3 of the Convention on the Continental Shelf, which included the de ‘ regarded as re

finition

of the continental shelf, were

flecting, or as crystallizing, received or at least emergent rules of customary 61

international law relative to the continental shelf ’ .

Today there is no doubt that the

rights of the coastal State over the continental shelf are well established in customary international law.

4.2 Spatial Scope of the Continental Shelf

The landward limit of the continental shelf in the legal sense is the seaward limit of the territorial sea. In this respect, Article 1 of the Convention on the Continental Shelf stipulates that the continental shelf is the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea. Similarly, Article 76(1) of the LOSC states that ‘the continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea’ . It follows that the continental shelf in a legal sense does not include the seabed of the territorial sea. On the other hand, the seaward limit of the continental shelf needs careful consideration. Article 1(a) of the Geneva Convention on the Continental Shelf provides two criteria to locate the seaward limits of the continental shelf: the 200 metres isobath and 62

the exploitability test.

However, the exploitability test gave rise to a considerable degree

of uncertainty because legal interpretation of the test may change according to the development of technology. In fact, the technological development during the 1960s made it possible to exploit the seabed at depths in excess of 1000 metres. It could be reasonably presumed that this capacity would progress further. In this regard, some argue that the concept of exploitability may be interpreted in relation to the most advanced standards of technology. If this is the case, according to an extreme interpretation, all the ocean

floor of the world would eventually be divided among the coastal States.

63

Hence it

fi

was hardly surprising that the precise limits of the continental shelf became a signi cant issue at UNCLOS III.

60

C. L. Rozakis, ‘Continental Shelf’, in R. Bernhardt (ed.), Encyclopedia of Public International Law, vol. 11 (Amsterdam, North-Holland, 1989), p. 84.

61

North Sea Continental Shelf (Federal Republic of Germany v Netherlands) (Federal Republic of Germany v Denmark), ICJ Reports 1969, p. 39, para. 63.

62

Simply put, ‘isobath ’ means a line connecting points of equal water depth. IHO, Hydrographic Dictionary,

Part I , vol. I, 5th edn (Monaco, 1994), p. 118 and p. 63. 63

S. Oda, International Control of Sea Resources (Dordrecht, Nijhoff, 1989), p. 167.

163

Marine Spaces Under Sovereign Rights Negotiations at the Conference resulted in Article 76 of the LOSC. Article 76(1) provides two

alternative

criteria

determining

the

outer

limits

of

the

continental

shelf

beyond

200 nautical miles:

The continental shelf of a coastal State comprises 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, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.

In the 2012 Nicaragua/Colombia case, the ICJ considered that the de

finition of the contin-

ental shelf set out in Article 76(1) of the LOSC forms part of customary international law.

64

Article 76(1) provides two criteria: (i) the limit of the outer edge of the continental margin (geological criterion), or (ii) a distance of 200 nautical miles (distance criterion). There is little doubt that the distance criterion is closely linked to the concept of the EEZ. In accordance with the distance criterion, the coastal State has the continental shelf in a legal

figuration of the seabed. As a conse-

sense up to 200 nautical miles regardless of the con

quence, approximately 36 per cent of the total seabed is now under the national jurisdiction of the coastal State.

65

In relation to this, legal title over the continental shelf should be mentioned. Legal title can be

fined as the criteria on the basis of which a State is legally empowered to exercise rights and

de

jurisdiction over the marine areas adjacent to its coasts.

66

According to the Truman Proclam-

ation, the continental shelf ‘may be regarded as an extension of the landmass of the coastal nation and thus naturally appurtenant to it’ . Noting this phrase, the ICJ, in the North Sea

Continental Shelf cases, highlighted the concept of natural prolongation as a legal title over the 67

continental shelf.

On the other hand, the emergence of the concept of the 200-mile EEZ

inevitably affected the legal title of the continental shelf. As noted, the EEZ is based on the distance criterion. In this regard, the ICJ, in the Libya/Malta case, pronounced:

Although there can be a continental shelf where there is no exclusive economic zone, there cannot be an exclusive economic zone without a corresponding continental shelf. It follows that, for juridical and practical reasons, the distance criterion must now apply to the 68

continental shelf as well as to the exclusive economic zone.

64

Territorial and Maritime Dispute (Nicaragua v Colombia), Judgment, ICJ Reports 2012, p. 666, para. 118. However, the ICJ did not state that the detailed provisions of Article 76(2)–(8) were also rules of customary international law. M. D. Evans, ‘Maritime Boundary Delimitation: Whatever Next’, in J. Barrett and R. Barnes (eds.), Law of the Sea: UNCLOS as a Living Treaty (London, British Institute of International and Comparative Law, 2016), p. 75, footnote 133.

65 66 67

Churchill and Lowe, Law of the Sea , p. 148.

fl

P. Weil, The Law of Maritime Delimitation: Re ections (Cambridge, Grotius, 1989), p. 48. ICJ Reports 1969, p. 31, para. 43.

68

ICJ Reports 1985, p. 33, para. 34.

164

International Law Governing Jurisdictional Zones In light of the dictum of the Court and Article 76 of the LOSC, it may be argued that currently the distance criterion is the legal title over the continental shelf up to 200 nautical miles, and the natural prolongation offers legal title over the shelf beyond 200 nautical miles.

4.3 Criteria for Determining the Outer Limits of the Continental Shelf Beyond 200 Nautical Miles

Where the outer edge of the continental margin extends beyond 200 nautical miles, the limit of the continental shelf is to be determined on the basis of the geological criteria set out by Article 76(4). This provision contains two criteria for

fixing the seaward limit of the

continental shelf. The

first criterion is the sedimentary thickness test enshrined in Article 76(4)(a)(i). As this

criterion was introduced by Ireland, this is called the

Irish formula Gardiner formula or

Figure 4.1). According to this criterion, the outer edge of the continental margin is a line delineated by reference to the outermost

(see

fixed by

fixed points at each of which the thickness of

sedimentary rocks is at least 1 per cent of the shortest distance from such point to the foot of the continental slope. The sedimentary thickness test may provide a possible criterion to evaluate the presence or absence of hydrocarbon reserves. It may be said that this criterion seeks to reserve the right to exploit petrol for the coastal State.

Internal Territorial waters sea

EEZ

200 nm

Sea level

Baseline

D X Foot of slope

T

Sedimentary rocks Continental shelf in legal sense

D: distance between the foot of slope and point X T: thickness of sedimentary rocks Figure 4.1 Continental shelf as de

X: outermost fixed point

T

D 100

fined in accordance with Article 76(4)(a)(i)

165

Marine Spaces Under Sovereign Rights

Internal Territorial waters sea

EEZ

200 nm

Sea level

Baseline

60 nautical miles X Foot of slope Sedimentary rocks Continental shelf in legal sense

Figure 4.2 Continental shelf as de

A second criterion is the

fined in accordance with Article 76(4)(a)(ii)

Hedberg formula provided in Article 76(4)(a)(ii) (see Figure 4.2).

According to this formula, the outer edge of the continental margin is determined by a line delineated by reference to

fixed points not more than 60 nautical miles from the foot of the

continental slope. In the absence of evidence to the contrary, the foot of the continental slope shall be determined as the point of maximum change in the gradient at its base by conformity with Article 76(4)(b). In either case, lines delineating the outer limits of the continental shelf must be straight lines not exceeding 60 nautical miles in length, connecting by coordinates of latitude and longitude (Article 76(7)). The

fixed points, de fined

fixed points comprising the

line of the outer limits of the continental shelf on the seabed shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured or shall not exceed 100 nautical miles from the 2,500-metre isobaths (Article 76(5), see Figure 4.3). Furthermore, under Article 76(6), on submarine ridges, the outer limit of the continental shelf shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured, although this provision does not apply to submarine elevations that are natural components of the continental margin, such as its 69

plateaux, rises, caps, banks and spurs.

69

In addition, a speci

fic method is to be applied in

Further, see B. Kunoy, ‘Assertions of Entitlement to the Outer Continental Shelf in the Central Arctic Ocean’ (2017) 66

ICLQ, pp. 392 et seq.

166 International Law Governing Jurisdictional Zones Internal Territorial Contiguous waters sea zone

EEZ

High seas

350 nm 200 nm 24 nm 12 nm

Sea level

Baseline

Continental slope

2500 m isobath 100 nm

Continental shelf in geographical sense

Continental rise

Continental margin Continental shelf in legal sense

Figure 4.3 Continental shelf as de

The Area

fined in accordance with Article 76(5)

establishing the outer edge of the continental margins of these States in the southern 70

part of the Bay of Bengal.

Presently the continental shelf beyond 200 nautical miles attracts many coastal States. Yet there is a concern that this regime reintroduces the inequalities between States which the uniform breadth of 200 nautical miles was supposed to remove. Further to this, the criteria set out in Article 76 give rise to a degree of uncertainty as to its practical application. For instance, in the application of the Irish and the Hedberg formulae, the location of the foot of the continental slope is of primary importance. However, identifying the foot of the continental slope is not free from dif

ficulty in practice.

71

It is also suggested that the

observed sediment thickness can be in error by as much as 10 per cent. If this is the case, this will have a signi shelf.

70

72

ficant impact upon the location of the outer limits of the continental ficult to locate when isobaths

The points of the 2,500-metre isobath may also be dif

Annex II of the Final Act of the Third United Nations Conference on the Law of the Sea, Statement of

fi c Method to be used in Establishing the Outer Edge of the Continental

Understanding Concerning a Speci

Margin. See also M. C. W. Pinto, ‘Article 76 of the UN Convention on the Law of the Sea and the Bay of

Asian Journal of International Law, pp. 215–235. Scientific and Technical Guidelines of the Commission on the Limits of the Continental Shelf Adopted by the Commission on 13 May 1999 at its Fifth Session, CLCS/11, p. 47, paras. 6.3.2 and 6.3.3; C. Carleton, ‘Article Bengal Exception’ (2013) 3

71

76 of the UN Convention on the Law of the Sea: Implementation Problems from the Technical Perspective’ (2006) 21

IJMCL, pp. 293–296; B. M. Magnússon,

‘The Rejection of a Theoretical Beauty: The Foot of the

Continental Slope in Maritime Boundary Delimitations Beyond 200 Nautical Miles’ (2014) 45

ODIL, p. 44; R.

Macnab, ‘The Case for Transparency in the Delimitation of the Outer Continental Shelf in Accordance with

ODIL, p. 5; by the same writer, ‘Initial Assessment’, in P. J. Cook and C. M. Continental Shelf Limits: The Scientific and Legal Interface (New York, Oxford University

UNCLOS Article 76’ (2004) 35 Carleton (eds.),

Press, 2000), p. 258. 72

Ibid., p. 259.

167

Marine Spaces Under Sovereign Rights are complex or repeated in multiples.

73

In light of the scienti

fic

uncertainties, the LOSC

established a technical body which assesses data respecting the outer limits of the continental shelf, namely the Commission on the Limits of the Continental Shelf (hereinafter CLCS or the Commission).

4.4 The Commission on the Limits of the Continental Shelf

As we shall discuss later, the coastal State intending to claim a continental shelf beyond 200 nautical miles is required to submit information on the limits of the shelf to the Commission. The Commission consists of twenty-one members who shall be experts in the

field of geology, geophysics or hydrography. The members of the Commission are to

be elected by States Parties to the LOSC from among their nationals, having due regard to the need to ensure equitable geographical representation, and they shall serve in their personal capacities in accordance with Article 2(1) of Annex II. The members are to be elected for a term of

five years and can be re-elected (Article 2(4) of Annex II). While the

tasks of the Commission are not completely separated from the legal interpretation of relevant rules of the Convention, the Commission contains no jurists. No representative of the International Seabed Authority (hereinafter the Authority) is included in the membership of the Commission, while the Authority is directly affected by the recommendation of the Commission. As the ICJ observed, the main role of the Commission consists of ensuring that the continental shelf of a coastal State does not extend beyond the limits provided for in Article 76(4), (5) and (6) of the LOSC and thus prevent the continental shelf from encroaching on the ‘Area and its resources ’, which are ‘ the common heritage of mankind ’.

74

Speci

fically, the

Commission is conferred with two functions by Article 3(1) of Annex II. First, the Commission is to consider the data and other material submitted by coastal States and to make recommendations to the coastal States in this matter in accordance with Article 76 and the Statement of Understanding adopted on 29 August 1980 by UNCLOS III. Second, the Commission is to provide scienti

fic and technical advice, if requested by the coastal State

concerned. It can be reasonably presumed that the extension of the continental shelf beyond 200 nautical miles will increase overlapping of continental shelves. However, delimitation of the continental shelf beyond 200 nautical miles is outside the scope of the jurisdiction of the Commission. Article 9 of Annex II, along with Article 76(10), makes clear that the actions of the Commission shall not prejudice matters relating to delimitation of boundaries between States with opposite or adjacent coasts. Paragraph 2 of Annex I of the Rules of Procedure of the Commission stated:

73 74

Macnab, ‘The Case for Transparency ’, p. 8.

Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v Colombia), Preliminary Objections, ICJ Reports 2016, p. 136, para. 109.

168

International Law Governing Jurisdictional Zones In case there is a dispute in the delimitation of the continental shelf between opposite or adjacent States, or in other cases of unresolved land or maritime disputes, related to the submission, the Commission shall be: (a) Informed of such disputes by the coastal States making the submission; and (b) Assured by the coastal States making the submission to the extent possible that the submission will not prejudice matters relating to the delimitation of boundaries between 75

States.

Paragraph 5(a) of Annex I of the Rules of the Commission also states:

In cases where a land or maritime dispute exists, the Commission shall not consider and qualify a submission made by any of the States concerned in the dispute, unless there is prior consent given by all States that are parties to such a dispute.

Under paragraph 5(b) of Annex I of the Rules of the Commission, ‘[t]he submissions made before the Commission and the recommendations approved by the Commission thereon 76

shall not prejudice the position of States which are parties to a land or maritime dispute ’ .

The Commission also acknowledged that it has no role on matters relating to the legal interpretation of Article 121 of the LOSC.

77

In order not to prejudice questions relating to the delimitation of boundaries between States, a State may make partial or joint submissions to the Commission.

78

For example, on 19 May

2006, France, Ireland, Spain and the United Kingdom made a joint submission to the Commission. On 1 December 2008, the Republic of Mauritius and the Republic of Seychelles also made a joint submission to the Commission. It appears that joint submissions may contribute to reduce the workload of the Commission and encourage cooperation between neighbouring coastal States to determine their outer limits of the continental shelf in an amicable manner.

79

4.5 Procedures to Establish the Outer Limits of the Continental Shelf

The process of establishing the outer limits of the continental shelf beyond 200 nautical miles involves four steps.

75

80

Rules of Procedure of the Commission on the Limits of the Continental Shelf, CLCS/40.Rev.1, 17 April 2008. The Rules of Procedure of the Commission are available at: www.un.org/Depts/los/clcs_new/clcs_home.htm.

76 77

See also Article 46(2) of the Rules of the Commission. Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the Progress of Work in the Commission, CLCS/62, 20 April 2009, p. 12, para. 59.

78 79

Paras. 3 and 4 of Annex I of the Rules of the Commission. H. Llewellyn, ‘The Commission on the Limits of the Continental Shelf: Joint Submission by France, Ireland, Spain, and the United Kingdom’ (2007) 56

80

ICLQ ,

pp. 683–684.

R. Wolfrum, ‘The Delimitation of the Outer Continental Shelf: Procedural Considerations’, in

Jean-Pierre Cot: Le procès international

(Brussels, Bruylant, 2009), pp. 352 –353.

Liber Amicorum

169

Marine Spaces Under Sovereign Rights Step One: The coastal State is to initially delineate the outer limits of its continental

(i)

shelf in conformity with criteria set out in Article 76 of the LOSC. (ii)

Step Two: The coastal State is to submit information on the limits to the CLCS within

ten years of the entry into force of the LOSC for that State.

81

A submission by a coastal

State is examined by a sub-commission which is composed of seven members of the Commission, and, next, the sub-commission submits its recommendation to the Commis82

sion.

The representatives of the coastal State which made a submission to the Commission

may participate in the relevant proceedings without the right to vote pursuant to Article 5 of Annex II. Approval by the Commission of the recommendations of the sub-commission is by a majority of two-thirds of Commission members present and voting pursuant to Article 6(2) of Annex II. The recommendations of the Commission are to be submitted in writing to the coastal State which made the submission and to the UN Secretary-General in accordance with Article 6(3) of Annex II. The LOSC contains no rule concerning public access to the information submitted to the Commission. Nor is there any provision with regard to the public promulgation of the recommendations of the Commission. However, the executive summary of a submission to the Commission is public pursuant to Rule 50 of the Rules of Procedure, and third States have been allowed to make observations on submissions to the Commission. (iii)

Step Three: The coastal State is to establish the outer limits of its continental shelf on

the basis of the recommendations of the Commission. Where the coastal State disagrees with the recommendations of the Commission, the State is to make a revised or new submission to the Commission in accordance with Article 8 of Annex II of the LOSC. Under Article 76(8) of the LOSC, the limits of the continental shelf established by a coastal State on the basis of the recommendations of the Commission shall be

final

and binding. This

provision requires two brief comments. First, strictly speaking, what is

final

and binding is the outer limits established by a

coastal State on the basis of the Commission ’s recommendations, not the recommendations themselves.

83

Second, Article 76(8), along with Article 7 of Annex II, appears to indicate

that the coastal State cannot establish outer limits of the continental shelf on the basis of information that has not been considered by the Commission. Yet the Commission is not empowered to assess whether a coastal State has established the outer limits of the continental shelf on the basis of its recommendations. It seems that the outer limits of the continental shelf which have not been established on the basis of the recommendations of the Commission will not become binding on other States.

81

84

Article 76(8); para. 4 of Annex II. The time limit of ten years was extended. See Chapter 1, section 7.3 of this book. Concerning the procedures for submission of information, see Rules of Procedure of the Commission on the Limits of the Continental Shelf, CLCS/40/Rev. 1, 17 April 2008.

82 83

Paras. 5 and 6(1) of Annex II. L. D. M. Nelson, ‘The Settlement of Disputes Arising from Con 24

84

IJMCL, p. 419.

flicting Outer Continental Shelf Claims

’ (2009)

International Law Association, Toronto Conference (2006), Legal Issues of the Outer Continental Shelf, The Second Report (hereinafter ILA Second Report), p. 15.

170 International Law Governing Jurisdictional Zones (iv) Step Four: Under Article 76(9), the coastal State is to deposit with the UN SecretaryGeneral charts and relevant information, including geodetic data, permanently describing the outer limits of its continental shelf. The Secretary-General is to give due publicity thereto. Article 84(2) requires the coastal State to give due publicity to charts or lists of geographical coordinates and deposit a copy of each such chart or list with the UN Secretary-General and, in the case of those showing the outer limit lines of the continental 85

shelf, the Secretary-General of the International Seabed Authority.

To date, the CLCS had received some eighty-four full or partial information on the outer limits of the continental shelf beyond 200 nautical miles. A question that may arise is whether or not non-State Parties to the LOSC may unilaterally de continental shelf beyond 200 nautical miles. In this regard, in

fine the outer limits of the his statement at the final

session of UNCLOS III, Tommy Koh, the President of the Conference, claimed that ‘a state which is not a party to this Convention cannot invoke the bene

fits of Article 76 . ’

86

In fact,

Article 4 of Annex II sets out a time limit for submissions of ten years after entry into force of the LOSC. This provision would seem to exclude the possibility of submission by a nonParty to the Convention.

87

As Judge ad hoc Cot stated in his declaration to the 2012

Nicaragua/Colombia judgment, it is dif

ficult

to regard Article 76(8) of the LOSC as an

expression of customary law since the provision institutes a speci accessible to non-States Parties to the Convention.

88

fic procedure which is not

In reality, it seems debatable whether

the CLCS would consider a submission of information on the outer limits of the continental shelf from a non-State Party to the Convention.

89

It must also be noted that Article 76 is

linked to Article 82 with regard to revenue sharing. The claim over the continental shelf beyond 200 nautical miles without the acceptance of the obligation with regard to revenue sharing should not be assumed.

90

Hence there may be room for the view that the outer

limits of the continental shelf unilaterally established by non-States Parties lack legitimacy because

the

procedure.

85

limits

have

not

been

established

through

an

internationally

accepted

91

On 21 October 2009, Mexico became the

fi rst member of the International Seabed Authority which had

deposited charts and other relevant information on the limit of its continental shelf with respect to the western polygon in the Gulf of Mexico. ISBA/16/A/2, 8 March 2010, p. 20, para. 74. 86

UNCLOS III, Of

ficial Records, vol. XVII, A/CONF.62/SR.193, p. 136, para. 48. See also S. V. Suarez, The Outer

Limits of the Continental Shelf: Legal Aspects of Their Establishment (Berlin, Springer, 2008), p. 181. 87

T. Treves, ‘Remarks on Submissions to the Commission on the Limits of the Continental Shelf in Response to Judge Marotta’s Report ’ (2006) 21 IJMCL, p. 364; ILA Second Report, p. 21; A. G. Oude Elferink, ‘Submissions of Coastal States to the CLCS in Cases of Unresolved Land or Maritime Disputes’, in M. H. Nordquist, J. N. Moore and T. H. Heider (eds.), Legal and Scienti

fic Aspects of Continental Shelf Limits (Leiden and Boston,

Brill/Nijhoff, 2004), p. 269. 88

Declaration of Judge ad hoc Cot in the Nicaragua/Colombia case, ICJ Reports 2012, p. 771, para. 19. This view was echoed by Judge Robinson. See Declaration of Judge Robinson in the 2016 Nicaragua/Colombia case (Preliminary Objection), pp. 211–212, para. 11.

89

B. M. Magnússon, ‘Can the United States Establish the Outer Limits of Its Extended Continental Shelf under International Law?’ (2017) 48 ODIL , p. 11.

90 91

Ibid. See also ILA Second Report, p. 21. This view is echoed by ITLOS. See Dispute Concerning Delimitation of the Maritime Boundary between

Bangladesh and Myanmar in the Bay of Bengal, Judgment, ITLOS Reports 2012, pp. 106 –107, para. 407. See also ILA Second Report, p. 2.

171

Marine Spaces Under Sovereign Rights A further issue involves peaceful settlement of disputes concerning the interpretation and application of Article 76 of the LOSC. Other States Parties may be considered to have a legal interest in the outer limits of the continental shelf beyond 200 nautical miles. For instance, it may be argued that a State Party which undertakes the exploration and exploitation of resources in the Area has a legal interest in the outer limits of the continental shelf beyond 200 nautical miles.

92

Accordingly, it seems possible that other States may challenge the

validity of the outer limits of the continental shelf concerned. There is no reference to such disputes under section 3 of Part XV which provides for limitations and exceptions to the compulsory procedures of dispute settlement. Thus, disputes involving the outer limits of the continental shelf beyond 200 nautical miles can, if necessary, be settled by recourse to the compulsory procedures of Part XV.

93

4.6 Payments Concerning the Exploitation of the Continental Shelf Beyond 200 Nautical Miles

Under Article 82 of the LOSC, the coastal State is obliged to make payments or contributions in kind in respect of the exploitation of the non-living resources of the continental shelf beyond 200 nautical miles. It is generally recognised that this provision represents a compromise between a group of States which advocated their claims over their continental shelves beyond 200 nautical miles and an opposing group which attempted to limit the continental shelves at 200 nautical miles.

94

The payments and contributions are to be made annually with respect to all production at a site after the

first five

years of production of that site. For the sixth year, the rate of

payment or contribution is to be 1 per cent of the value or volume of production at the site. The rate is to increase by 1 per cent for each subsequent year until the twelfth year and shall remain at 7 per cent thereafter in conformity with Article 82(2). However, a developing State which is a net importer of a mineral resource produced from its continental shelf is exempt from making such payments in respect of that mineral resource by virtue of Article 82(3). Under Article 82(4), the payments or contributions are to be made through the Authority. The Authority is to distribute them to States Parties to the LOSC on the basis of equitable sharing criteria, taking into account the interests and needs of developing States, particularly the least developed and the land-locked among them.

95

It may be said

that the principle of the common heritage of mankind counterbalances overexpansion of the exclusive interests of coastal States.

92

96

Wolfrum, ‘The Delimitation of the Outer Continental Shelf’, pp. 363– 364; ILA Second Report, p. 26.

93

Ibid., p. 25; Wolfrum, ‘The Delimitation of the Outer Continental Shelf’, p. 364.

94

ILA, Report on Article 82 of the 1982 UN Convention on the Law of the Sea (UNCLOS), Rio De Janeiro

Conference (2008), p. 2. 95

See also Implementation of Article 82 of the United Nations Convention on the Law of the Sea, ISA Technical Study: No.12 (International Seabed Authority, 2013) available at: www.isa.org.jm/documents/ implementation-article-82-united-nations-convention-law-sea.

96

Oda, International Control, p. xxxii.

172

International Law Governing Jurisdictional Zones

4.7 The Sovereign Rights of the Coastal State Over the Continental Shelf

The coastal State exercises sovereign rights over the continental shelf for the purpose of exploring and exploiting its natural resources in accordance with Article 77(1). The principal features of sovereign rights can be summarised in six points: (i) The sovereign rights of the coastal State over the continental shelf are inherent rights, and do not depend on occupation, effective or notional, or on any express proclamation. 97

Thus a continental shelf exists ipso facto and ab initio.

(ii) The sovereign rights of the coastal State relate to the exploration and exploitation of natural resources on the continental shelf. Non-natural resources are not included in the ambit of sovereign rights of the coastal State even if they are found on the continental shelf. For instance, wrecks lying on the shelf do not fall within the ambit of sovereign rights over the continental shelf.

98

Sovereign rights are thus characterised by the lack of comprehen-

siveness of material scope. On this point, sovereign rights must be distinguished from territorial sovereignty. (iii) The natural resources basically consist of the mineral and other non-living resources of the seabed and subsoil. However, exceptionally, sedentary species are also included in natural resources on the continental shelf. Under Article 77(4), the sedentary species are organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil. Examples include oysters, clams and abalone. Yet it is debatable whether crabs and lobster fall within the category of sedentary species.

99

Where the coastal State established the EEZ,

that State has sovereign rights to explore and exploit all marine living resources on the seabed in the zone. (iv) Although there is no provision like Article 73(1), there seems to be a general sense that sovereign rights include legislative and enforcement jurisdiction with a view to exploring and exploiting natural resources on the continental shelf. In fact, Article 111(2) stipulates:

The right of hot pursuit shall apply

mutatis mutandis

to violations in the exclusive economic

zone or on the continental shelf, including safety zones around continental shelf installations, of the laws and regulations of the coastal State applicable in accordance with this Convention to the exclusive economic zone or the continental shelf, including such safety zones.

This provision appears to suggest that the coastal State has legislative and enforcement jurisdiction with respect to the continental shelf. Related to this, it must be recalled that Article 77 of the LOSC largely reproduces the 1958 Geneva Convention on the Continental Shelf.

The

commentary

of

the

ILC

in

relation

to

the

draft

provision

flected

re

in

Article 77 states that the text setting out the rights of the coastal State in relation to the continental shelf:

97

ICJ Reports 1969, p. 22, para. 19.

98

Churchill and Lowe, Law of the Sea , p. 152.

99

Ibid., p. 151.

173

Marine Spaces Under Sovereign Rights leave no doubt that the rights conferred upon the coastal state cover all rights necessary for and connected with the exploration and exploitation of the resources of the continental shelf. Such rights include jurisdiction in connection with the prevention and punishment of violations of the law.

100

(v) The sovereign rights of the coastal State are exercisable over all people or vessels regardless of their nationalities. Thus there is no limit concerning personal scope. (vi) The rights are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State.

101

At the same time, the exercise of the

rights of the coastal State over the continental shelf must not infringe or result in any unjusti

fiable interference with navigation and other rights and freedoms of other States as

provided for in the LOSC.

102

Overall sovereign rights of the coastal State over the continental shelf are limited to certain matters provided by international law. With respect to matters provided by international law, however, the coastal State may exercise legislative and enforcement jurisdiction over all peoples regardless of their nationalities in an exclusive manner. In essence, rights over the continental shelf are spatial in the sense that they can be exercised solely within the particular space in question regardless of the nationality of persons or vessels. Hence, like the EEZ, the sovereign rights of the coastal State over the continental shelf can also be regarded as a limited spatial jurisdiction. In addition to these sovereign rights, the coastal State has jurisdiction with regard to arti

ficial islands, marine scientific research, dumping and other purposes. Relevant provi-

sions can be summarised as follows. First, under Article 80 of the LOSC, Article 60 concerning the coastal State’ s jurisdiction over arti

ficial islands is applied mutatis mutandis to the continental shelf. It follows that on

the continental shelf, the coastal State has exclusive rights to construct and to authorise

ficial islands, (b) installations and

and regulate the construction, operation and use of (a) arti

structures for the purposes provided for in Article 56 and other economic purposes, and (c) installations and structures which may interfere with the exercise of the rights of the coastal

ficial fiscal,

State in the zone. The coastal State also has exclusive jurisdiction over such arti islands, installations and structures, including jurisdiction with regard to customs, health, safety and immigration laws and regulations.

100

‘ILC Articles Concerning the Law of the Sea with Commentaries ’ (1956) 2

YILC , p. 297. See also M/V

Virginia G case, ITLOS Reports 2014, p. 67, para. 211; The Arctic Sunrise Arbitration (The Netherlands v the Russian Federation), Award on Merits, 14 August 2015, para. 283, available at: https://pca-cpa.org/en/ cases/21/; N. Klein, Maritime Security and the Law of the Sea (Oxford University Press, 2011), p. 99. 101

LOSC, Article 77(2); Article 2(2) of the Geneva Convention on the Continental Shelf. The ICJ echoed this view: ICJ Reports 1969, p. 22, para. 19.

102

LOSC, Article 78(2).

174

International Law Governing Jurisdictional Zones Second, on the continental shelf, the coastal State has jurisdiction with regard to marine

fic research in accordance with Articles 56(1)(b)(ii) and 246(1) of the LOSC. Article 246(2) makes clear that marine scienti fic research in the EEZ and on the continental shelf scienti

shall be conducted with the consent of the coastal State. However, with regard to the continental shelf beyond 200 nautical miles, the discretion of the coastal State is limited by Article 246(6), the

first sentence of which provides:

Notwithstanding the provisions of paragraph 5, coastal States may not exercise their discretion

fi

to withhold consent under subparagraph (a) of that paragraph in respect of marine scienti c research projects to be undertaken in accordance with the provisions of this Part on the continental shelf, beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, outside those speci

fic areas which coastal States may at any time

publicly designate as areas in which exploitation or detailed exploratory operations focused on those areas are occurring or will occur within a reasonable period of time.

At the same time, this provision seems to suggest that within ‘those speci

fic areas in which

exploitation or detailed exploratory operations focused on those areas are occurring or will occur within a reasonable period of time ’ , the coastal States may exercise their discretion to withhold consent if, as provided in Article 246(5)(a), a research project is of direct signi

fi-

cance for the exploration and exploitation of natural resources. Furthermore, the restriction in Article 246(6) does not apply to the withdrawal of consent relating to marine scienti

fic

research on the basis of Article 246(5)(b) –(d). Third, Article 210(5) of the LOSC makes clear that the coastal State has the right to permit, regulate and control dumping on the continental shelf. At the same time, the coastal State has enforcement jurisdiction with respect to pollution by dumping on the continental shelf. Finally, Article 81 provides: ‘The coastal State shall have the exclusive rights to authorize and regulate drilling on the continental shelf for all purposes.’ The phrase, ‘for all purposes ’, seems to suggest that the exclusive rights of the coastal State concerning drilling on the continental shelf are not limited to the purposes of exploration and exploitation of natural resources.

4.8 Freedoms of Third States

(a) Submarine Cables and Pipelines With respect to the freedom of use on the continental shelf, Article 79(1) stipulates that all States are entitled to lay submarine cables and pipelines on the continental shelf.

103

103

Generally on submarine cables, see D. R. Burnett, R. C. Beckman and T. M. Davenport (eds.), Submarine

Cables: The Handbook of Law and Policy (Leiden, Brill/Nijhoff, 2014); D. R. Burnett, ‘Submarine Cables on the Continental Shelf’, in M. H. Nordquist, J. N. Moore, A. Chircop and R. Long (eds.), The Regulation of

Continental Shelf Development: Rethinking International Standards (Leiden, Brill/Nijhoff, 2013), pp. 53 –70;

175

Marine Spaces Under Sovereign Rights In practice, submarine cables are divided into two main categories: submarine power cables used to transmit electricity, and submarine communication cables used to transmit data

communications

traf

fic.

At

present,

the

overwhelming

international telecommunication relies on submarine

majority

fibre-optic

of

the

world’ s

cables, and submarine

telecommunication cables have become a critical global communications infrastructure.

104

The oil and gas pipeline is also of crucial importance as a reliable means of energy transport.

105

The delineation of the course for the laying of such pipelines on the continental shelf is subject to the consent of the coastal State pursuant to Article 79(3). Taken literally, the

fies that the delineation of the course

omission of submarine cables in this provision signi

for submarine cables is not subject to the consent of the coastal State.

106

In reality,

however, some coastal States require consent when third parties lay submarine cables in their EEZs or on their continental shelves.

107

Under Article 79(4), the coastal State has the

right to establish conditions for cables or pipelines entering its territory or territorial sea. It can be argued that conditions for laying pipelines under Article 79(4) cover the enactment

of

legal

requirement

for

protecting

the

108

environment.

Under

the

same

provision, the coastal State also has jurisdiction over the cables and pipelines constructed or used in connection with the exploration of its continental shelf, exploitation of its resources

or

the

operations

of

arti

ficial

islands,

installations

and

structures

under

its jurisdiction. Under Article 79(2), the coastal State has rights to take reasonable measures for: (i) the exploration of the continental shelf, (ii) the exploitation of its natural resources, and (iii) the prevention, reduction and control of pollution from pipelines, although it may not impede the laying or maintenance of such cables or pipelines. Thus, if a coastal State considers the laying of a pipeline on its continental shelf problematic, it can take reasonable measures to protect its interests in accordance with Article 79(2). connection, it is to be noted that while the

first

109

In this

two types of measure apply to both

submarine cables and pipelines, the third type of measure, i.e. for the prevention of

T. A. Mensah, ‘Submarine Cables and the International Law of the Sea’, in Lilian del Castillo (ed.), Law of the Sea, from Grotius to the International Tribunal for the Law of the Sea: Liber Amicorum Judge Hugo Caminos (Leiden, Brill/Nijhoff, 2015), pp. 725 –749; T. Davenport, ‘Submarine Communications Cables and Law of the Sea: Problems in Law and Practice ’ (2012) 43 ODIL, pp. 201– 242. 104 105

Ibid., p. 202. S. Vinogradov, ‘Challenges of Nord Stream : Streamlining International Legal Frameworks and Regimes for Submarine Pipelines ’ (2009) 52 GYIL, p. 241.

106

Ibid., p. 211; Virginia Commentary, vol. 2, p. 915; Roach and Smith, Excessive Maritime Claims , p. 453; D. Burnett, T. Davenport and R. Beckman, ‘Overview of the International Legal Regime Governing Submarine Cables’, in Burnett et al., Submarine Cables, p. 81.

107

According to Roach and Smith, coastal States that require consent in this matter include: China, Cyprus, Guyana, India, Malaysia, Mauritius, Pakistan, Portugal, Russia, Saint Lucia, the United States and Uruguay. Roach and Smith, Excessive Maritime Claims , pp. 461–462.

108

A. Prölss, ‘Pipelines and Protected Sea Areas ’, in R. Caddell and R. Thomas (eds.), Shipping, Law and the Marine Environment in the 21st Century (Witney, Lawtext Publishing Limited, 2013), p. 291.

109

D. Langlet, ‘Transboundary Transit Pipelines: Re

flections on the Balancing of Rights and Interests in Light

of the Nord Stream Project’ (2014) 63 ICLQ, pp. 994 –995.

176 International Law Governing Jurisdictional Zones 110

marine pollution, does not apply to submarine cables.

While the scope of ‘ reasonable

measures ’ is not wholly unambiguous, it would seem reasonable for a coastal State to take measures to restrict the laying of submarine cables in environmentally sensitive areas, such as coral reefs or areas that have been designated for the exploitation of hydrocarbons on the continental shelf.

111

(b) The Judicial Nature of the Superjacent Waters Above the Continental Shelf In considering freedoms of third States, some mention should be made of the judicial nature of the superjacent waters above the continental shelf. Following Article 3 of the Convention on the Continental Shelf, Article 78(1) of the LOSC provides that the rights of the coastal State over the continental shelf do not affect the legal status of the superjacent waters or of the airspace above those waters. It follows that where the coastal State has not claimed an EEZ, the superjacent waters above the continental shelf are the high seas. Where the coastal State has established an EEZ, the superjacent waters above the continental shelf beyond 200 nautical miles are always the high seas under the LOSC. Hence all States enjoy the freedoms of navigation and the freedom of over

fishing in the superjacent waters of the continental shelf and

flight in the airspace above those waters. However, it must be noted that fied by the coastal State in the superjacent water of the

freedoms of third States may be quali

continental shelf beyond 200 nautical miles.

ficial islands

First, the coastal State has exclusive jurisdiction over the construction of arti

as well as installations and structures on the continental shelf beyond 200 nautical miles by

ficial

virtue of Article 80 of the LOSC. In practice, arti

islands and other installations are

constructed in superjacent waters above the continental shelf. It would seem to follow that freedom to construct arti

ficial

fied

islands may be quali

by the coastal State jurisdiction,

even though literally the superjacent waters of the continental shelf beyond 200 nautical miles are the high seas. Second, in practice, coastal States explore and exploit natural resources on the continental shelf from the superjacent waters above the continental shelf. Accordingly, it appears inescapable that the coastal State excises its jurisdiction in the superjacent waters above the continental resources.

112

shelf

for

the

purpose

of

the

exploration

and

exploitation

of

natural

In fact, Article 111(2) of the LOSC provides the right of hot pursuit in respect

of violations on the continental shelf, including safety zones around continental shelf installations, of the laws and regulations of the coastal State applicable to the continental shelf,

110

including

such

safety

zones.

In

practice,

safety

zones

are

established

on

the

Davenport, ‘Submarine Communications Cables’, p. 211; D. J. Englender, ‘Article 79 ’, in Prölss, A Commentary, p. 625; R. Beckman, ‘Submarine Cables: A Critically Important but Neglected Area of the Law of the Sea ’, Indian Society of International Law, 7th International Conference on Legal Regimes of Sea,

–

Air, Space and Antarctica, 15 17 January 2010, New Delhi, p. 6, available at: https://cil.nus.edu.sg/wpcontent/uploads/2010/01/Beckman-PDF-ISIL-Submarine-Cables-rev-8-Jan-10.pdf. 111

Ibid., p. 6; Y. van Logchem, ‘Submarine Telecommunication Cables in Disputed Maritime Areas’ (2014) 45 ODIL, p. 109; Langlet, ‘Transboundary Transit Pipelines’, p. 995.

112

S. Oda, ‘Proposals for Revising the Convention on the Continental Shelf’, in S. Oda, Fifty Years of the Law of the Sea: With a Special Section on the International Court of Justice (The Hague, Brill/Nijhoff, 2003), p. 275.

177

Marine Spaces Under Sovereign Rights superjacent waters of the continental shelf. It would seem to follow that the coastal State jurisdiction relating to the exploration and exploitation of the continental shelf is to be exercised at least in safety zones on the superjacent waters of the shelf. Third, as noted, the coastal State has jurisdiction with regard to marine scienti

fic research

on the continental shelf under Articles 56(1)(b)(ii) and 246(1) of the LOSC, and such research on the continental shelf is to be conducted with the consent of the coastal State pursuant to Article 246(2). On the other hand, Article 257 of the LOSC provides that all States have the

fic research in the water column beyond the limits of the EEZ

right to conduct marine scienti

‘ in conformity with this Convention’ . A question arises of whether the complete freedom of

marine scienti

fic research applies to superjacent waters of the continental shelf. According

to a literal interpretation, consent under Article 246(2) seems to be required only for physically taking place on the sea floor. Considering that normally marine fic research is carried out from the superjacent waters or airspace above the contin-

research scienti

ental shelf, however, it appears to be naïve to consider that coastal States will not exercise their jurisdiction to regulate marine scienti

fic research there.

113

In summary, it appears that in some respects the freedom of the high seas may be quali

fied by coastal State jurisdiction in the superjacent waters above the continental shelf

beyond 200 nautical miles and the airspace above the waters. To this extent, their legal status should be distinguished from the high seas per se.

4.9 Protection of Archaeological and Historical Objects Found Within the Continental Shelf

It has been said that ‘the greatest museum of human civilization lies on the seabed ’. Owing to the development of underwater archaeology as a scienti

114

fic discipline, the protec-

tion of underwater cultural heritage has begun to emerge as a crucial issue in international law.

115

Thus this section addresses two key instruments on this subject: the LOSC and the

Convention on the Protection of Underwater Cultural Heritage adopted by UNESCO on 2 November 2001 (hereinafter the UNESCO Convention).

116

(a) The LOSC Under the LOSC, only two provisions, i.e. Articles 303 and 149, are devoted to the protection of underwater cultural heritage. Article 303(1) places a general obligation upon States to

113

Y. Takei, Filling Regulatory Gaps in High Seas Fisheries: Discrete High Seas Fish Stocks, Deep-sea Fisheries and Vulnerable Marine Ecosystems (Leiden, Brill/Nijhoff, 2013), p. 45.

114

T. Scovazzi, ‘The Relationship between Two Conventions Applicable to Underwater Cultural Heritage’, in J. Crawford et al. (eds.), The International Legal Order: Current Needs and Possible Responses, Essays in Honour of Djamchid Momtaz (Leiden, Brill/Nijhoff, 2017), p. 504. Generally on this subject, see S. Dromgoole, Underwater Cultural Heritage and International Law (Cambridge University Press, 2013).

115

C. Forrest, ‘A New International Regime for the Protection of Underwater Cultural Heritage’ (2002) 51 ICLQ, p. 512.

116

Entered into force 2 January 2009. For the text of the Convention, see (2002) 48 Law of the Sea Bulletin, p. 29; Lowe and Talmon, Basic Documents, p. 721.

178 International Law Governing Jurisdictional Zones protect objects of an archaeological and historical nature found at sea and to cooperate for this purpose. Accordingly, a State which deliberately allowed the destruction of underwater cultural heritage or refused to cooperate in the protection of such heritage would be contrary to Article 303(1).

117

It is implicit in the LOSC that the coastal State can exercise its jurisdiction with regard to underwater cultural heritage located in the internal waters and the territorial sea. Furthermore, Article 303(2) allows the coastal State to exercise its jurisdiction to prevent and punish the removal of archaeological and historical objects located in the contiguous zone. Article 149 deals with the protection of archaeological and historical objects located within the Area. Under this provision, all archaeological and historical objects found in the Area must be preserved or disposed of for the bene

fit

of mankind as a whole, with particular

regard to the preferential rights of the State or country of origin, the State of cultural origin or the State of historical and archaeological origin. Yet this provision does not offer any

fit of mankind as a whole

guidance on the manner in which the ‘ bene

with the rights of various categories of States. The LOSC is de

’ should be harmonised

118

ficient in not containing provisions for the protection of archaeological

and historical objects found in the EEZ or on the continental shelf. This legal vacuum could easily lead to a

first-come-first-served approach on the basis of the freedom of the seas. The

danger of non-protection of these objects is aggravated by Article 303(3), which provides:

fi

Nothing in this article affects the rights of identi able owners, the law of salvage or other rules of admiralty, or laws and practices with respect to cultural exchanges.

The application of the law of salvage may mean the application of a approach which would serve the interest of private commercial gain.

first-come-first-served 119

Overall it may have

to be admitted that the LOSC is inadequate to protect archaeological and historical objects.

120

(b) The 2001 Convention on the Protection of Underwater Cultural Heritage The UNESCO Convention is a crucial instrument as a defence against the weak rules of the LOSC concerning the protection of underwater cultural heritage. As provided in Article 2(1), this Convention aims to ensure and strengthen the protection of underwater cultural heritage. Under Article 2(3), States Parties are obliged to preserve underwater cultural

fit of humanity in conformity with the provisions of this Convention. fit of humanity arises from the acknowledgement of the importance of underwater

heritage for the bene The bene

‘

cultural heritage as an integral part of the cultural heritage of humanity and a particularly

117 118 119

T. Scovazzi, ‘Article 303’, in Prölss,

ibid ibid

T. Scovazzi, ‘Article 149’, in Scovazzi, ‘Article 303’ in

A Commentary

, p. 1953.

., p. 1055.

., p. 1956. Apart from a minority of common law countries, salvage law is not

intended to apply to submerged archaeological and historical sites, or to ancient sunken ships which have been de 120

fi nitively lost for hundreds or even thousands of years. Ibid.

N. Rau, ‘The UNESCO Convention on Underwater Cultural Heritage and the International Law of the Sea’ (2002) 6

Max Planck Yearbook of United Nations Law

, p. 401.

179

Marine Spaces Under Sovereign Rights important element in the history of peoples, nations, and their relations with each other concerning their common heritage ’.

‘Underwater

121

Under Article 1(1)(a):

cultural heritage’ means all traces of human existence having a cultural, historical

or archaeological character which have been partially or totally under water, periodically or continuously, for at least 100 years such as: (i)

sites, structures, buildings, artefacts and human remains, together with their archaeological and natural context;

(ii)

vessels, aircraft, other vehicles or any part thereof, their cargo or other contents, together with their archaeological and natural context; and

(iii)

objects of prehistoric character.

122

The phrase ‘all traces of human existence ’ suggests that ‘ underwater cultural heritage’ includes not only objects but also entire sites, including the context in which they are found.

123

Pipelines and cables placed on the seabed are not regarded as underwater cultural

heritage. Likewise installations other than pipelines and cables placed on the seabed and still in use are not considered underwater cultural heritage.

124

Although no comprehensive

analysis of the UNESCO Convention can be made here, four principal features of the Convention merit being highlighted: (i) the preclusion of the salvage law, (ii) the prohibition of commercial exploitation, (iii) protection of underwater cultural heritage in the EEZ and on the continental shelf, and (iv) the obligation to cooperate. The

first noteworthy feature of the UNESCO Convention is the preclusion of the law of

salvage.

125

In this regard, Article 4 of the UNESCO Convention is clear:

Any activity relating to underwater cultural heritage to which this Convention applies shall not be subject to the law of salvage or law of

finds, unless it:

(a) is authorized by the competent authorities, and (b) is in full conformity with this Convention, and (c) ensures that any recovery of the underwater cultural heritage achieves its maximum protection.

The second noteworthy feature concerns the prohibition of commercial exploitation. In this regard, Article 2(7) explicitly provides that ‘ [u]nderwater cultural heritage shall not be

121

Preamble of the UNESCO Convention. See also Forrest, ‘A New International Regime’, p. 519; L. Savadogo, ‘La convention sur la protection du patrimoine culturel subaquatique (2 novembre 2001) ’ (2003) 107

p. 45. 122 123 125

For an analysis of the concept of underwater cultural heritage, see

RGDIP,

ibid., pp. 36 et seq.

Rau, ‘The UNESCO Convention on Underwater Cultural Heritage ’, p. 403.

124

Article 1(1)(b) and (c).

Rau, ‘The UNESCO Convention on Underwater Cultural Heritage ’, pp. 405–406; Scovazzi, ‘Article 303 ’, p. 1958.

180 International Law Governing Jurisdictional Zones commercially exploited ’. This provision is further ampli

fied by Rule 2 of the Annex to the

UNESCO Convention. In this connection, Article 16 places an obligation upon States Parties to ‘ take all practicable measures to ensure that their nationals and vessels

flying their flag

do not engage in any activity directed at underwater cultural heritage in a manner not in conformity with this Convention ’ . Furthermore, each State Party is obliged to impose sanctions for violations of measures it has taken to implement this Convention.

126

Third, a major breakthrough in the UNESCO Convention concerns the creation of a legal regime governing the protection of underwater cultural heritage in the EEZ and on the continental shelf. Under Article 9(1), ‘ [a]ll States Parties have a responsibility to protect underwater cultural heritage in the exclusive economic zone and on the continental shelf in conformity with this Convention’ . To this end, the Convention sets out a three-step procedure.

127

first step is reporting. Under Article 9(1)(a), a State Party must require its national or the master of the vessel flying its flag to report discovery or activity directed at underwater The

cultural heritage located in its EEZ or on its continental shelf. When the discovery or activity is located in the EEZ or on the continental shelf of another State Party, Article 9(1) (b) provides two options:

(i) States Parties shall require the national or the master of the vessel to report such discovery or activity to them and to that other State Party. (ii) Alternatively, a State Party shall require the national or master of the vessel to report such discovery or activity to it and shall ensure the rapid and effective transmission of such reports to all other States Parties.

The second step is consultation. Where there is a discovery of underwater cultural heritage or it is intended that activity shall be directed at underwater cultural heritage in a State Party ’s EEZ or on its continental shelf, that State Party is required to consult all other States Parties which have declared an interest under Article 9(5) on how best to protect the underwater cultural heritage.

128

That State is to coordinate such consultations as

‘ Coordinating State’ , unless it does not wish to do so.

The third step concerns speci

129

fic measures. Under Article 10(2), a State Party in whose EEZ

or on whose continental shelf underwater cultural heritage is located has the right to prohibit or authorise any activity directed at such heritage to prevent interference with its sovereign rights or jurisdiction as provided for by international law, including the LOSC. Furthermore, Article 10(4) allows the coastal State as ‘ Coordinating State’ to take all practical measures to prevent any immediate danger to underwater cultural heritage. These provisions would seem to provide the coastal State with grounds for exercising its jurisdiction over such heritage within the EEZ. Under Article 10(6), the ‘Coordinating State ’ shall act ‘ on behalf of the States Parties as a whole and not in its own interest’ .

126 129

Article 17(1). Article 10(3)(b).

127

Scovazzi, ‘Article 303 ’, pp. 1958–1959.

128

Article 10(3)(a).

181

Marine Spaces Under Sovereign Rights The fourth feature of the UNESCO Convention pertains to international cooperation in the protection of underwater cultural heritage. In this regard, Article 2(2) places a general obligation

upon

States

Parties

to

cooperate

in

the

protection

of

underwater

cultural

heritage. It is suggested that the obligation to protect underwater cultural heritage falls not only on the State most directly connect to the heritage, but with all States.

130

Article 6

(1) further encourages States Parties to enter into bilateral, regional or other multilateral agreements or develop existing agreements, for the preservation of underwater cultural heritage. Article 6(2) allows Parties to such agreements to invite States with a veri

fiable link

to the underwater cultural heritage concerned – especially a cultural, historical or archaeological link – to join such agreements. The regional cooperation through conclusion of the agreements is particularly important in the protection of underwater cultural heritage found in

enclosed

Caribbean.

or

semi-enclosed

sea,

such

as

the

Mediterranean,

the

Baltic

and

the

131

(c) The Relationship Between the LOSC and the UNESCO Convention Finally, the relationship between the LOSC and the UNESCO Convention must be considered. Under Article 3 of the UNESCO Convention:

Nothing in this Convention shall prejudice the rights, jurisdiction and duties of States under international law, including the United Nations Convention on the Law of the Sea. This Convention shall be interpreted and applied in the context of and in a manner consistent with international law, including the United Nations Convention on the Law of the Sea.

On the other hand, Article 304(4) of the LOSC provides:

This article is without prejudice to other international agreements and rules of international law regarding the protection of objects of an archaeological and historical nature.

It may not be unreasonable to consider that this provision refers not only to agreements concluded before the adoption or entry into force of the LOSC but also to subsequent agreements, including the UNESCO Convention. Accordingly, an appropriate interpretation appears to be that in the case of any con

flicts between the two conventions, the UNESCO

Convention prevails, in light of the general principle of law according to which the special rules prevail over the general rules (

130 131

132

).

Forrest, ‘A New International Regime ’, p. 522. T. Scovazzi, ‘The Entry Into Force of the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage’ (2010) 1

132

lex specialis derogate legi generali

Aegean Review of the Law of the Sea and Maritime Law

, p. 31.

Scovazzi, ‘Article 303’, pp. 1959 –1960; Scovazzi, ‘The Relationship between Two Conventions’, pp. 517 –518.

182 International Law Governing Jurisdictional Zones

5 CONCLUSIONS The principal points discussed in this chapter can be summarised as follows: (i) In the contiguous zone, the coastal State may exercise jurisdiction to prevent and punish infringement of its customs,

fiscal,

immigration or sanitary laws and regulations

within its territory, internal waters and the territorial sea. Literally the coastal State has only enforcement jurisdiction, not prescriptive jurisdiction, in the contiguous zone. In light of the increasing importance of the prevention of illegal traf

fic in drugs, in particular, there

appears to be scope to reconsider the question of whether the coastal State cannot extend legislative jurisdiction to the contiguous zone in practice. (ii) The coastal State exercises sovereign rights over the EEZ and the continental shelf for the purpose of exploring and exploiting the natural resources there. Sovereign rights are limited to the matters de

fined

by international law (limitation

ratione materiae

). Thus

sovereign rights must be distinct from territorial sovereignty in the sense that such rights lack the comprehensiveness of material scope. (iii) Concerning matters provided by international law, in the EEZ and the continental shelf,

the

coastal

State

may

exercise

legislative

and

enforcement

jurisdiction

over

all peoples regardless of their nationalities in an exclusive manner. Furthermore, like territorial sovereignty, sovereign rights over the EEZ and the continental shelf are essentially spatial because they can be exercised only within the speci

fic space concerned. Hence,

it is argued that the sovereign rights of the coastal State can be considered as a sort of spatial jurisdiction, namely, limited spatial jurisdiction. (iv) In the EEZ, all States enjoy freedoms of navigation, over

flight

and the laying of

submarine cables and pipelines. In exercising these freedoms, however, States must have due regard to the rights and duties of the coastal State under Article 58(3) of the LOSC. To this extent, freedoms of the seas in the EEZ may be quali

fied by coastal State jurisdiction.

(v) If an international dispute arises with regard to a matter where the LOSC does not specify which States are to have jurisdiction, such a dispute should be resolved on the basis of equity and in the light of all the relevant circumstances in accordance with Article 59 of the LOSC. This provision contains no presumption in favour of either the coastal State or other States. (vi) The outer limit of the continental shelf beyond 200 nautical miles is to be determined by the criteria enshrined in Article 76 of the LOSC, namely, the sedimentary thickness test

Irish formula Hedberg formula (the

or

Gardiner formula

) and the

fixed-distance (60 nautical miles) test (the

). The coastal State is required to submit information with regard to the

outer limits of the continental shelf beyond 200 nautical miles to the CLCS. On the basis of the recommendations of the CLCS, that State is to establish the outer limits of its continental shelf. While the extension of the continental shelf beyond 200 nautical miles attracts growing attention between States, such a claim may create a dif

ficult issue with regard to

the delimitation of overlapping shelves between two or more coastal States. (vii) The institution of the EEZ and the continental shelf rests on a balance between the rights of the coastal State on the basis of the principle of sovereignty and the right of other States according to the principle of freedom. Nonetheless, it is likely that the coastal State

183

Marine Spaces Under Sovereign Rights will attempt to extend its jurisdiction over matters which do not clearly fall within the rights of that State. The increasing in

fluence

of the coastal State may entail the risk of

promoting ‘territorialisation’ of the EEZ.

FURTHER READING 1 Contiguous Zone M. J. Aznar, ‘The Contiguous Zone as an Archaeological Maritime Zone ’ (2014) 29 IJMCL, pp. 1–51. A. V. Lowe, ‘The Development of the Contiguous Zone ’ (1981) 52 BYIL, pp. 109–169. S. Oda, ‘The Concept of the Contiguous Zone’ (1962) 11 ICLQ, pp. 131–153. A. Pazarci, ‘Le concept de zone contiguë dans la convention sur le droit de la mer de 1982’ (1984 –85) 18 RBDI, pp. 249 –271. J. Symonides, ‘Origin and Legal Essence of the Contiguous Zone’ (1989) 20 ODIL, pp. 203 –211.

2 Exclusive Economic Zone As there are many studies with regard to the EEZ, only monographs on this subject will be listed here. D. Attard, The Exclusive Economic Zone in International Law (Oxford, Clarendon Press, 1987). E. Franckx and P. Gautier (eds.), The Exclusive Economic Zone and the United Nations Convention

–

on the Law of the Sea, 1982 2000: A Preliminary Assessment of State Practice (Brussels, Bruylant, 2003). B. Kwiatkowska, The 200-Mile Exclusive Economic Zone in the New Law of the Sea (Dordrecht, Nijhoff, 1989). F. Orrego Vicuña, The Exclusive Economic Zone (Cambridge University Press, 1989). The UN has published useful documents on the EEZ: United Nations, The Law of the Sea: National Legislation on the Exclusive Economic Zone and the Exclusive Fishery Zone (New York, United Nations, 1986). The Law of the Sea: Exclusive Economic Zone: Legislative History of Articles 56, 58 and 59 of the United Nations Convention on the Law of the Sea (New York, United Nations, 1992). The Law of the Sea: National Legislation on the Exclusive Economic Zone and the Exclusive Fishery Zone (New York, United Nations, 1993).

3 Continental Shelf S. V. Busch, Establishing Continental Shelf Limits Beyond 200 Nautical Miles by the Coastal State: A Right of Involvement for Other States? (Leiden, Brill/Nijhoff, 2016). A. Caligiuri, ‘Les revendications des Etats côtiers de l’océan arctique sur le plateau continental audelà de 200 milles marins ’ (2007) 12 Annuaire du droit de la mer, pp. 273 –294.

floor High Issue in Article 76 of the LOS Convention: Some Views from the

J. Gao, ‘The Sea

Perspective of Legal Interpretation’ (2012) 43 ODIL, pp. 119 –145. M. S. T. Gau, ‘Third Party Intervention in the Commission on the Limits of the Continental Shelf Regarding a Submission Involving a Dispute’ (2009) 40 ODIL, pp. 61 –79.

184 International Law Governing Jurisdictional Zones

Ø

. Jensen, The Commission on the Limits of the Continental Shelf: Law and Legitimacy (Leiden, Brill/Nijhoff, 2014).

B. Kwiatkowska, ‘ Fundamental Principle of “ Without Prejudice” in Submissions to the UN CLCS in Northeast and Southeast Asia’ (2012) 3 Law of the Sea Reports, pp. 1 –31. B. Kunoy, ‘ Establishment of the Outer Limits of the Continental Shelf: Is Crossing Boundaries Trespassing? ’ (2011) 26 IJMCL, pp. 313 –334. ‘Assertions of Entitlement to the Outer Continental Shelf in the Central Arctic Ocean ’ (2017) 66

ICLQ, pp. 367–409. B. M. Magnússon, The Continental Shelf Beyond 200 Nautical Miles (Leiden, Brill/Nijhoff, 2015). T. L. McDorman, ‘ The Continental Shelf’, in Oxford Handbook, pp. 181 –202. J. Mossop, The Continental Shelf beyond 200 Nautical Miles: Rights and Responsibilities (Oxford University Press, 2016). M. H. Nordquist, J. N. Moore and T. H. Heider (eds.), Legal and Scienti

fic Aspects of Continental

Shelf Limits (Leiden and Boston, Brill/Nijhoff, 2004). M. H. Nordquist, J. N. Moore, A. Chircop and R. Long (eds.), The Regulation of Continental Shelf Development: Rethinking International Standards (Leiden, Brill/Nijhoff, 2013). A. G. Oude Elferink, ‘ Article 76 of the LOSC on the De

finition of the Continental Shelf:

Questions concerning its Interpretation from a Legal Perspective’ (2006) 21 IJMCL, pp. 271–272. ‘“Openness” and Article 76 of the Law of the Sea Convention: The Process Does Not Need to Be

Adjusted ’ (2009) 40 ODIL, pp. 36–50. ‘The Establishment of Outer Limits of the Continental Shelf beyond 200 Nautical Miles by the

Coastal State: The Possibilities of Other States to Have an Impact on the Process’ (2009) 24 IJMCL, pp. 535 –556. D. R. Rothwell, ‘Issues and Strategies for Outer Continental Shelf Claims’ (2008) 23 IJMCL , pp. 185–211. D. Roughton and C. Trehearne, ‘The Continental Shelf’ , in IMLI Manual, vol. I, pp. 137–176. M. Sheng-ti Gau, ‘ The Commission on the Limits of the Continental Shelf as a Mechanism to Prevent Encroachment upon the Area’ (2011) 10 Chinese Journal of International Law, pp. 3–33. S. V. Suarez, The Outer Limits of the Continental Shelf: Legal Aspects of their Establishment (Berlin, Springer, 2008). ‘Commission on the Limits of the Continental Shelf ’ (2010) 14 Max Planck Yearbook of United

Nations Law, pp. 131 –168. S. P. Subedi, ‘The Role of the Commission on the Limits of the Continental Shelf in the Governance of the Seas and Oceans ’, in D. J. Attard et al. (eds.), The IMLI Treatise on Global Ocean Governance, Vol I: UN and Global Ocean Governance (Oxford University Press, 2018), pp. 87–102. C. R. Symmons, ‘ The Irish Partial Submission to the Commission on the Limits of the Continental Shelf in 2005: A Precedent for Future Such Submissions in the Light of the “ Disputed Areas” Procedures of the Commission?’ (2006) 37 ODIL, pp. 299 –317. UNDOALOS, The Law of the Sea: De

finition of the Continental Shelf (New York, United Nations,

1993). The Law of the Sea: Training Manual for Delineation of the Outer Limits of the Continental Shelf beyond 200 Nautical Miles and for Preparation of Submissions to the Commission on the Limits of the Continental Shelf (New York, United Nations, 2007).

185

Marine Spaces Under Sovereign Rights R. Wolfrum, ‘The Delimitation of the Outer Continental Shelf: Procedural Considerations’, in

Liber Amicorum Jean-Pierre Cot: Le procès international

(Brussels, Bruylant, 2009),

pp. 349–366. Xuexia Liao, ‘Is There a Hierarchical Relationship between Natural Prolongation and Distance in the Continental Shelf Delimitation?’ (2017) 32

IJMCL ,

pp. 1–37.

See also articles included in ‘ Special Issue: Symposium on the Outer Continental Shelf ’ (2006) 21

IJMCL,

pp. 263 –372.

The outer limits of the continental shelf were a subject of discussion in the International Law Association. To date, four reports have been published. These reports are available at the website of the ILA: www.ila-hq.org/index.php/committees.

5 Marine Spaces Beyond National Jurisdiction Main Issues This chapter will examine rules governing marine spaces beyond the limits of national jurisdiction, namely, the high seas and the Area. The high seas are essentially characterised by the principle of freedom of the seas, and order in the high seas is ensured primarily by the

flag

State. Thus the principle of the exclusive jurisdiction of the

flag

State and its

exceptions are key issues underlying international law governing the high seas. However, the Area is governed by the principle of the common heritage of mankind. This principle is innovative because it may bring new viewpoints beyond the State-to-State perspective in the law of the sea. Against that background, this chapter will discuss in particular the following issues: (i) What is the principle of freedom of the high seas? (ii) What is the function of the principle of the exclusive jurisdiction of the high seas? (iii) What are the problems associated with

flags of convenience and how is it possible to

address them? (iv) What are the peacetime exceptions to the principle of the exclusive jurisdiction of the

flag State on the high seas?

(v) What is the

raison d’être

of the principle of the common heritage of mankind?

(vi) To what extent was the regime governing the Area in the LOSC changed by the 1994 Implementation Agreement? (vii) Is the common heritage of mankind still a signi

ficant principle governing the Area?

1 INTRODUCTION The high seas are governed by the principle of freedom. However, it is not suggested that there is no legal order on the high seas. The order on the high seas is essentially ensured by the principle of the exclusive jurisdiction of the

flag

State. Thus this principle and its

exceptions become principal issues in the international law governing the high seas.

186

187

Marine Spaces Beyond National Jurisdiction The Area, namely ‘the seabed and ocean national jurisdiction’,

1

floor and subsoil thereof, beyond the limits of

is governed by the principle of the common heritage of mankind. As will

be seen, this principle is an important innovation in the law of the sea as it introduces the concept of ‘ mankind’ as an emerging actor in international law. The principle of the common heritage of mankind will provide a touchstone to consider the question of whether and to what extent international law in the twenty-

first century is moving towards an international law for

mankind, which is beyond the State-to-State system. Against that background, this chapter focuses on legal regimes governing the high seas (section 2) and the Area (section 3).

2 THE HIGH SEAS

2.1 Spatial Scope of the High Seas

The LOSC devotes Part VII to the high seas. Under Article 86, the high seas are de

fined as:

all parts of the sea which are not included in the EEZ, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State.

Where a coastal State has established its EEZ, the landward limit of the high seas is the seaward limit of the EEZ. Where the coastal State has not claimed its EEZ, the landward limit of the high seas is the seaward limit of the territorial sea. In this case, the seabed of the high seas is the continental shelf of the coastal State up to the limit

fixed

by the inter-

national law of the sea. The seabed and subsoil beyond the outer limits of the continental shelf are the Area, which is the common heritage of mankind. The superjacent waters above the Area are always the high seas. Where the continental shelf extends beyond the limit of 200 nautical miles, the superjacent waters and the airspace above those waters are the high seas under Article 78 of the LOSC.

2.2 Principle of the Freedom of the High Seas

The principle of the freedom of the high seas

2

was established in the early nineteenth century.

3

This principle has two meanings.

1 2

LOSC, Article 1(1). Concerning the juridical nature of the high seas, there is a classical controversy as to whether the high seas should be regarded as res nullius (nobody’s thing) or res communis (thing of the entire community). Yet these Latin words seem to have been given a meaning different from the original meaning in Roman law and, consequently, created unnecessary confusion. Thus, Gidel proposed that the reference to the concept of res nullius/res communis should be avoided. In light of the modern development of rules governing the high seas, it would seem that currently the res nullius/res communis controversy is of limited value. See G. Gidel, Le droit international public de la mer: le temps de paix, vol. 1: Introduction, La haute mer (reprint, Paris, Duchemin, 1981), pp. 213–224 (in particular, pp. 214 –215). See also D. P. O’Connell (I. A. Shearer ed.), The International Law of the Sea, vol. 2 (Oxford, Clarendon Press, 1984), pp. 792 –796.

3

J. L. Brierly, The Law of Nations: An Introduction to the International Law of Peace, 6th edn (Oxford, Clarendon Press, 1963), p. 305; R. R. Churchill and A. V. Lowe, The Law of the Sea, 3rd edn (Manchester University Press, 1999), p. 205.

188 International Law Governing Jurisdictional Zones First, the freedom of the high seas means that the high seas are free from national jurisdiction. In this regard, Article 89 of the LOSC makes clear that ‘[n]o State may validly purport to subject any part of the high seas to its sovereignty’ . Second, the freedom of the high seas means the freedom of activities there. This is a corollary of the fact that the high seas are free from the national jurisdiction of any State. Consequently, each and every State has an equal right to enjoy the freedom to use the high seas in conformity with international law. In this regard, Article 87(1) provides:

The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises,

inter alia ,

both for coastal and land-locked States:

(a) Freedom of navigation;

fl

(b) Freedom of over ight; (c) Freedom to lay submarine cables and pipelines, subject to Part VI;

fi

(d) Freedom to construct arti cial islands and other installations permitted under international law, subject to Part VI;

fishing, subject to the conditions laid down in section 2; Freedom of scientifi c research, subject to Parts VI and XIII.

(e) Freedom of (f )

This provision calls for six brief comments. First, the term ‘ inter alia’ suggests that the freedom of the high seas may comprise other freedoms which are not provided for in Article 87(1). Yet it is unclear what activities may fall within the category of other freedoms of the high seas. In particular, a sensitive issue arises with regard to the legality of military activities on the high seas. While Article 88 of the LOSC provides that the high seas shall be reserved for peaceful purposes, it is generally considered that this provision does not prohibit naval manoeuvres and conventional weapons testing on the high seas.

4

However, Article 301 explicitly prohibits military

activities which are contrary to the UN Charter, by providing that:

In exercising their rights and performing their duties under this Convention, States Parties shall refrain from any 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.

Second, as explained in the previous chapter, freedom to construct arti freedom of scienti

ficial islands and

fic research may be qualified by the coastal State jurisdiction in super-

jacent waters of the continental shelf beyond 200 nautical miles.

5

It would follow that the

six freedoms fully apply only to the high seas as superjacent waters of the Area.

4

Ibid., p. 206.

5

See Chapter 4, section 4.8 of this book.

189

Marine Spaces Beyond National Jurisdiction Third, as ITLOS stated in the M/V ‘Louisa’ case, the freedom of navigation does not give a vessel ‘ a right to leave the port and gain access to the high seas notwithstanding its detention in the context of legal proceedings against it ’.

6

Fourth, an issue arises of whether protest at sea using vessels can be regarded as an internationally lawful use of the sea. In this regard, Annex VII Arbitral Tribunal, in the

Arctic Sunrise case, took this view:

‘ The right to protest at sea is necessarily exercised in

conjunction with the freedom of navigation. ’

7

Fifth, the freedom of the high seas is not absolute. As provided in Article 87(2), the freedom must be exercised ‘ with due regard for the interest 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 ’ . It is also to be noted that the freedom of the high seas may be quali

fied by specific treaties respecting such things as conservation

of marine living resources and marine environmental protection. Finally, the freedom of laying submarine cables and pipelines on the bed of the high seas beyond the continental shelf is provided in Article 112. At the same time, States are under the obligation to adopt the necessary laws and regulations to prevent the breaking or injury of a submarine cable beneath the high seas by a ship its jurisdiction in accordance with Article 113.

flying its flag or by a person subject to

8

2.3 Principle of the Exclusive Jurisdiction of the Flag State

flag State, namely, the State which has granted a ship the right to sail under its flag, has the exclusive jurisdiction over vessels flying its flag. This is called the principle of the exclusive jurisdiction of the flag State. The principle is well established in customary The

international law. Article 92(1) of the LOSC formulates it as follows.

Ships shall sail under the

fl

ag 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.

flag State jurisdiction comprises both legislative and enforcement jurisdiction over its flag State exercises enforcement jurisdiction over all peoples within its ships flying its flag regardless of their nationalities. In this regard, ITLOS stated: The

ships on the high seas. The

6

M/V ‘Louisa’ (Saint Vincent and the Grenadines v Kingdom of Spain), Judgment, ITLOS Reports 2013, p. 36, para. 109.

7

The Arctic Sunrise Arbitration (The Netherlands v the Russian Federation), Award on Merits, 14 August 2015, para. 227.

8

However, a concern is voiced whether Article 113 of the LOSC is properly implemented by States and whether municipal law in this matter would be effective. T. Davenport, ‘Submarine Communications Cables and Law of the Sea: Problems in Law and Practice ’ (2012) 43 ODIL , p. 219.

190 International Law Governing Jurisdictional Zones

[T]he ship, everything on it, and every person involved or interested in its operations are treated as an entity linked to the

fl

9

ag State. The nationalities of these persons are not relevant.

As a consequence, as stated in the Third Restatement of the Law, the

flag State is entitled to

make claims against other States in case of damage to its ship or injury to the seamen manning it, regardless of their nationality.

10

The legal basis of the principle of the exclusive jurisdiction of the

flag

State was

sometimes explained by the theory of the territoriality of the ship. According to this theory, a ship is considered as a ‘ which it belongs.

11

floating island

’ or a ‘ detached part of the territory’ of the State to

Nonetheless, the theory of the territoriality of the ship is contrary to the

fact that, in certain circumstances, merchant vessels are subject to the right of visit by foreign warships, and vessels within internal waters and the territorial seas are in principle under the territorial sovereignty of the coastal State.

12

Hence the theory of the territoriality

of the ship is obsolete and indefensible for practical reasons. The principle of the exclusive jurisdiction of the

flag State should be considered as a corollary of the freedom of the high

seas and the requirement of the submission of the high seas to law, or, according to Gidel, 13

the juridicité (or ‘ juridicity’ ) of the high seas.

Considering that the high seas are not

subject to any national jurisdiction and there is no centralised authority governing the high seas, legal order on the high seas can be ensured primarily by the

flag State.

flag State plays a dual role. First, this flying its flag on the high seas. In so doing, the principle of the exclusive jurisdiction of the flag State ensures the freedom of activity of vessels on the high seas. Second, under this principle, the flag State The principle of the exclusive jurisdiction of the

principle prevents any interference by other States with vessels

has responsibility to ensure compliance with national and international laws concerning activities of ships

flying its flag on the high seas.

The principle of the exclusive jurisdiction of the are entitled to

fly

their

flags

flag State does not mean that only States

on their vessels. As provided in Article 7 of the Geneva

Convention on the High Seas and Article 93 of the LOSC, international organisations are also entitled to

fly their own flag on their vessels.

14

Indeed, the International Committee of

the Red Cross (ICRC) has been identifying its vessels by displaying its emblem for decades. In the UN Emergency Force (UNEF) in Egypt between 1956 and 1957, vessels were chartered

9

The M/V ‘ Saiga’ (No. 2) case (Saint Vincent and the Grenadines v Guinea), Judgment, ITLOS Reports 1999, p. 48, para. 106.

10

The American Law Institute, Restatement of the Law Third: The Foreign Relations Law of the United States, vol. 2 (American Law Institute Publishers, 1990) § 502, Comment (h), p. 21.

11 12 13 14

The Case of the S.S. Lotus, PCIJ, 1928 Series A/10, p. 25. Dissenting Opinion by Lord Finlay, ibid., p. 53. Gidel, Le droit international public de la mer, p. 225. Generally on this issue, see L. Savadogo, ‘Les navires battant pavillon d’une organisation internationale’ (2007) 53 AFDI, pp. 640–671; V. P. Bants, Ships Flying the Flag of International Organizations: A Study of

the Maritime Flag of International Organisations, Studies and Working Papers (Geneva, Graduate Institute of International Studies, 1999).

191 Marine Spaces Beyond National Jurisdiction by UNEF itself, and the UN

flag was flown by certain of these vessels, on some occasions flag. the flag State are diverse, Article 94 of the LOSC specifies in 15

alone, and on others together with the national While the obligations of

particular the following duties.

16

(i) Every State is under the duty to effectively exercise its jurisdiction and control in administrative, technical and social matters over ships

flying its flag.

17

In particular, every

State is obliged to maintain a register of ships containing the names and particulars of ships

flying its flags and to assume jurisdiction under its internal law over each ship flying its flag and its master, officers and crew in respect of administrative, technical and social matters respecting the ship.

18

(ii) Under Article 94(3), every State is obliged to take such measures for ships

flag as are necessary to ensure safety at sea with regard, inter alia, to:

flying its

(a) the construction, equipment and seaworthiness of ships; (b) the manning of ships, labour conditions and the training of crews, taking into account the applicable international instruments; (c) the use of signals, the maintenance of communications and the prevention of collisions.

(iii) In taking those measures called for in Article 94(3)(4), each State is required to conform to generally accepted international regulations, procedures and practices, and to take any steps which may be necessary to secure their observance (Article 94(5)). ‘ Generally accepted

international

regulations,

procedures

and

practices ’

include

treaties

adopted

under the auspices of the IMO and the ILO as well as practices on the basis of those instruments. For example, the seaworthiness of ships is regulated by the 1974 International Convention for the SOLAS,

19

20

the 1966 International Convention on Load Lines,

1971 Agreement on Special Trade Passenger Ships

21

and its Protocol of 1973,

22

the

the 1977 -

International Convention for the Safety of Fishing Vessels and the 1993 Torremolinos Protocol.

23

Collision at sea is governed by the 1972 Convention on the International

Regulations for Preventing Collisions at Sea.

24

The quality of crews is regulated by the

1976 ILO Convention No. 147 concerning Minimum Standards in Merchant Ships, 1978 International Convention on Standards of Training, Certi

15 16

19

21 22 23 24 25

fication and Watchkeeping

flag States, see Y. Takei, Assessing Flag State Performance in Legal Terms: fi cations of the Margin of Discretion (2013) 28 IJMCL, pp. 100 114.

Generally on the duty of

LOSC, Article 94(1). 1184

‘

’

18

–

LOSC, Article 94(2).

UNTS, p. 278. Entered into force 25 May 1980. This Convention has been amended many times to keep

it up to date. 20

the

Ibid., p. 32. Clari

17

25

UNTS, p. 133. Entered into force 21 July 1968. UNTS, p. 61. Entered into force 2 January 1974. 1046 UNTS , p. 317. Entered into force 2 June 1977. 640 910

The 1977 Convention was replaced by the 1993 Torremolinos Protocol. 1050 1259

UNTS , p. 18. Entered into force 15 July 1977. UNTS , p. 335. Entered into force 28 November 1981.

192 International Law Governing Jurisdictional Zones for Seafarers,

26

the 1995 International Convention on Standards of Training, Certi

and Watchkeeping for Fishing Vessel Personnel (STCW-F), Convention.

28

27

fication

and the 2006 Maritime Labour

ficant in this field.

The role of the ILO is signi

(iv) Under Article 94(6), a State which has clear grounds to believe that proper jurisdiction

flag flag State is obliged to investigate the matter, and if

and control with respect to a ship have not been exercised may report the facts to the State. Upon receiving such report, the

appropriate, take any action necessary to remedy the situation. Yet this provision does not provide any further clarity on the concept of ‘ clear grounds’ for reporting.

29

(v) In accordance with Article 94(7), each State is obliged to cause an inquiry 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. Furthermore, the

flag

State and the other State are required to cooperate in the conduct of any inquiry held by that other State into any such marine casualty or incident of navigation. One issue which has arisen involves the extent of where vessels

flying

the

flags

regard, the most often cited instance is the 1927 mail steamer

Lotus

flag State jurisdiction in the situation

of different States have collided on the high seas. In this

collided with a Turkish vessel

Lotus

case. On 2 August 1926, the French

Boz-Kourt on

the high seas. As a result of

the collision, the Turkish vessel sank and eight Turkish nationals on board lost their lives. Upon the arrival of the

Lotus

in Constantinople, the Turkish authorities instituted criminal

proceedings against, among others, Lieutenant Demons, a French of board the

Lotus

ficer of the watch on

at the time of the collision. On 15 September 1926, the Criminal Court

sentenced Lieutenant Demons to eighty days’ imprisonment and a

fine of £22. The action of

the Turkish judicial authorities gave rise to a dispute between France and Turkey and, by a special agreement signed at Geneva on 12 October 1926, the two governments submitted the case to the PCIJ. In this case, the PCIJ took the view that ‘ there is no rule of international law prohibiting the State to which the ship on which the effects of the offence have taken place belongs from regarding the offence as having been committed in its territory and prosecuting, 30

accordingly, the delinquent ’ . Turkey had not acted in con

The Court thus held, by the President ’s casting vote, that

flict with the principle of international law, contrary to Article

15 of the Convention of Lausanne of 24 July 1923.

31

Nonetheless, the

Lotus

judgment was

much criticised because penal proceedings before foreign courts in the event of collision on

26

1361

UNTS ,

p. 2. Entered into force 28 April 1984. The 1995 amendments completely revised the

Convention. The amendments entered into force 1 February 1997. 27

Entered into force 29 September 2012. The text of the Convention is available at: http://pmg-assets.s3website-eu-west-1.amazonaws.com/150623STCW-F.pdf.

28

Entered into force 20 August 2013. The Maritime Labour Convention was amended in 2014. The amendment entered into force 18 January 2017. The text of the Convention, as amended, is available at: www.ilo.org/global/standards/maritime-labour-convention/text/lang–en/index.htm.

29

D. Guilfoyle, ‘Article 94’, in A. Prölss (ed.),

United Nations Convention on the Law of the Sea: A Commentary

(Munich, Beck/Oxford, Hart Publishing/Baden-Baden, Nomos, 2017), p. 713. 30

The Case of the S.S. Lotus,

PCIJ, 1928 Series A/10, p. 25.

31

Ibid.,

p. 32.

193

Marine Spaces Beyond National Jurisdiction the high seas may constitute an intolerable interference with international navigation. a consequence, the 1952 Brussels Convention for the Uni

32

As

fication of Certain Rules relating to

Penal Jurisdiction in Matters of Collision and Other Incidents of Navigation provided for the exclusive jurisdiction of the

flag State or of the State of nationality of an offender in the

event of a collision or any other incident of navigation concerning a seagoing ship.

33

This

rule was echoed in Article 11 of the Geneva Convention on the High Seas and Article 97 of the LOSC. Furthermore, under Article 98(1)(a), every State shall require the master of a ship

flying its flag, in so far as can be done without serious danger to the ship, the crew or the passengers, to render assistance to any person found at sea in danger of being lost. Article 98(1)(c) of the LOSC places a clear obligation upon every State to require the master of a

flying its flag, after a collision, to render assistance to the other ship, its crew and its passengers. The obligation to render assistance is further ampli fied by SOLAS and the ship

1979 Maritime Search and Rescue Convention.

34

2.4 The Nationality of a Ship

The

flag State jurisdiction is exercised on the basis of the nationality of a ship. Thus, the

nationality of a ship is of central importance in order to establish the juridical link between a State and a ship

flying its flag. Under international law, each State is entitled to determine

conditions for the grant of its nationality to ships. In the M/V ‘Saiga ’ (No. 2) case, ITLOS ruled:

Determination of the criteria and establishment of the procedures for granting and withdrawing nationality to ships are matters within the exclusive jurisdiction of the

fl

ag

35

State.

However, the right of States to grant their nationality to ships is not without limitation. It is generally recognised that a State may not grant its nationality to a ship which has already been granted the nationality of another State. This requirement follows from customary international law and Article 92(1) of the LOSC which obliges ships to sail under the one State only. quali

36

The right of the State to grant its nationality to vessels may also be

fied by specific treaties, such as the UN Convention on Conditions for Registration of

Ships (hereinafter the UN Registration Convention).

32

flag of

37

ILC, ‘Report to the General Assembly covering its work of the eighth session, Articles concerning the Law of the Sea with Commentaries’ (1956-II) YILC , p. 281, Article 35 (1).

33 34 35

439 UNTS, p. 234, Articles 1 and 3. Entered into force 20 November 1955. See also Chapter 3, section 2.5 of this book. The M/V ‘ Saiga’ (No. 2) case (Saint Vincent and the Grenadines v Guinea), Judgment, ITLOS Reports 1999, p. 37, para. 65. See also LOSC, Article 91(1). An early example of a statement on this matter can be found in the 1905 Muscat Dhows Arbitration (France v Great Britain) , 11 RIAA, p. 93.

36

D. König, ‘Flags of Ships’, in Max Planck Encyclopedia , para. 21. See also Articles 4(4) and 11(4) of the UN Convention on Conditions for Registration of Ships.

37

Not entered into force. For the text of the Convention, see (1986) 7 Law of the Sea Bulletin , pp. 87–106.

194 International Law Governing Jurisdictional Zones The validity of the nationality of a ship may be questioned in international adjudication. In the 2001 Grand Prince case between Belize and France, for example, ITLOS examined the question of whether Belize could be considered as the

flag State of the Grand Prince when

the application was made. The Tribunal then concluded that Belize failed to establish that it

flag

was the

State of the Grand Prince.

38

A related issue is whether the change of the

ownership of a ship results in the change of the nationality of the ship. In this regard, ITLOS, in the 2007 Tomimaru case, took the view that ownership of a vessel and the nationality of a vessel are different issues and it cannot be assumed that a change in ownership automatically leads to the change or loss of its

flag.

39

This judgment provides an important

precedent on this subject. As noted, the juridical link between a State and a ship that is entitled to prerequisite for securing effective exercise of the

flag

fly its flag is a

State jurisdiction. With a view to

securing the juridical link, Article 5(1) of the Geneva Convention on the High Seas and Article 91(1) of the LOSC provide the requirement of a ‘ genuine link’ between the and the ships

flying its flag.

Every State shall

40

fi

Article 91(1) deserves quotation in full:

x the conditions for the grant of its nationality to ships, for the registration of

ships in its territory, and for the right to whose

flag State

fl

ag they are entitled to

fl

fl

y its

fl

ag. Ships have the nationality of the State

y. There must exist a genuine link between the State and

the ship.

In relation to this, Article 94(1) further requires that ‘[e]very State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships its

flag .

flying

’

According to ITLOS, ‘the need for a genuine link between a ship and its

flag State is to

flag State . Yet the Convention fied the concept of a genuine link. This situation creates at least two questions that need further consideration. The first is how secure more effective implementation of the duties of the

’

41

on the High Seas and the LOSC leave entirely unspeci

38 39

42

The Grand Prince case (Belize v France) , Prompt Release, ITLOS Reports 2001, p. 44, para. 93. The Tomimaru case (Japan v Russian Federation), Prompt Release, ITLOS Reports 2007, p. 95, para. 70. In the 2004 Juno Trader case, Judges Mensah, Wolfrum and Ndiaye took the same view: Joint Separate Opinion of Judges Mensah and Wolfrum, ITLOS Reports 2004, pp. 60–61, paras. 9 –10; Separate Opinion of Judge Ndiaye, ibid ., p. 82, para. 28.

40

There is little doubt that the concept of a ‘genuine link ’ arose from the Nottebohm judgment of 1955. In this judgment, the ICJ held that a State cannot claim that the municipal rules governing the grant of its own nationality are entitled to recognition by another State ‘unless it has acted in conformity with this general aim of making the legal bond of nationality accord with the individual’s genuine connection with the State which assumes the defence of its citizens by means of protection as against other States’. Emphasis added.

Nottebohm (Liechtenstein v Guatemala), Judgment, ICJ Reports 1955, p. 23. 41

The M/V ‘Saiga’ (No. 2) case, ITLOS Reports 1999, p. 42, para. 83. See also the M/V Virginia G case (Panama

v Guinea-Bissau), Judgment, ITLOS Reports 2014, p. 45, para. 113. 42

Thus the concept of a genuine link invited strong criticisms from writers. See for instance, M. S. McDougal, W. T. Burke and I. A. Vlasio, ‘The Maintenance of Public Order at Sea and the Nationality of Ships’ (1960) 54

AJIL, pp. 28–43.

195

Marine Spaces Beyond National Jurisdiction

flag State and the ships flying its flag in flags of convenience. The second question concerns

it is possible to ensure a ‘ genuine link’ between the practice. It is particularly relevant to

the consequences to be attached to the absence of a genuine link.

2.5 Problems Associated With Flags of Convenience

While there is no generally agreed de

finition, flag of convenience

’ or ‘ open registry’ States

‘

refer, in essence, to States that permit foreign shipowners, having very little or virtually no real connection with those States, to register their ships under the The

flags of those States.

43

flag of convenience States allow shipowners to evade national taxation and to avoid fications required of the crews of their ships. In so doing, flag of convenience

the quali

States give shipowners an opportunity to reduce crew costs by employing inexpensive labour, while these States receive a registry fee and an annual fee. As one of the few variables in shipping costs is crew costs, a highly competitive market within the international shipping industry prompts shipowners to resort to open registry States. In relation to this, attention must also be drawn to a mechanism of ‘ second’ or ‘international’ registries that allow for the use of the national are different from those applicable for the

first

flag, albeit under conditions which

national registry. Examples include the

Norwegian International Ship Register (NIS), the Danish International Register of Shipping (DIS) and the French International Register (RIF). The NIS and the RIF cater to some foreigncontrolled tonnage, while the DIS is almost only used by Danish-controlled ships.

44

The ten

largest open and international registry States that cater almost exclusively to foreigncontrolled ships are: Panama, Liberia, Bahamas, Marshall Islands, Malta, Cyprus, Isle of Man, Antigua and Barbuda, Bermuda, and Saint Vincent and the Grenadines.

45

Even though non-compliance with relevant rules is by no means peculiar to

flags

of

convenience, there is rightly the concern that open registry States do not commit them-

flying flag with regard to, inter alia, safety of navigation, labour conditions of the crew, the regulation of fisheries and marine pollution, since strict law enforcement will have a negative effect on the economic policy of attracting ships to register. Illegal fishing by the flags of convenience is also a matter of pressing concern. selves to effectively enforce the observance of relevant rules and standards by vessels their

46

47

In 1986, the UN Registration Convention was adopted under the auspices of the UN Conference on Trade and Development (UNCTAD) with a view to tightening a genuine link

flying its flag. The UN Registration Convention elaborates several conditions with which the flag State shall comply. In particular, ownership between the

43

44 45 46

flag

Law of the Sea, p. 258. For detailed analysis of fl ags of convenience, see OECE Study on Flags of Convenience, reproduced in (1972 –1973) 4 Journal of Maritime Law and Commerce, pp. 231 –254. UNCTAD, Review of Maritime Transport 2008 (New York and Geneva, United Nations, 2008), p. 47. Ibid., p. 45. Churchill and Lowe,

H. W. Wefers Bettink, ‘Open Registry, the Genuine Link and the 1986 Convention on Regulation Conditions

NYIL, p. 77. Droit de la mer (Paris, Dalloz, 2010), p. 81. See also Chapter 7, section 6.1 of this book.

for Ships’ (1987) 18 47

State and the ships

J.-P. Pancracio,

196 International Law Governing Jurisdictional Zones of ships, manning of ships, and the management of ships and ship-owning companies constitute key elements of the tightening of a genuine link between the

flag State and the

flying its flag. However, this Convention has not entered into force. Furthermore, it appears to be questionable whether the flag of convenience States will ratify this Convention. The problem of flags of convenience seems, broadly, to derive from international competition in the shipping and fishing industry, in which case, it is debatable whether the tightening of ships

the requirement of a genuine link would provide an effective solution.

48

A further issue involves legal consequences arising from the absence of a genuine link

flag State and the ship concerned. Should a foreign State be free not to recognise fly the flag of the flag State because of the absence of a genuine link between the ship and the flag State? Considering this question, four cases merit attention. The first example is the Magda Maria case of 1986. On 1 August 1981, the Magda Maria flying the Panamanian flag was seized by the Dutch authorities on the high seas 9 miles off between the

the right of the ship to

the Dutch coast because of unauthorised broadcasting from the high seas. The

Magda Maria

was brought into port at Amsterdam harbour and broadcasting equipment on board was seized. Although the District Court of The Hague upheld the validity of the seizure by the Dutch authority,

49

the Supreme Court quashed the decision of the District Court and

remitted the case to the Court of Appeal of The Hague for retrial and decision.

50

Before

the Court of Appeal, the Procurator-General claimed that in view of the absence of a genuine link as referred to in Article 5 of the Convention on the High Seas, the

Maria

had

become

stateless.

Nonetheless,

the

Court

of

Appeal

dismissed

this

According to the Court, the concept of the genuine link obliges Panama as the

Magda claim.

flag State

only to exercise its jurisdiction effectively. However, ‘ [i]t does not imply that the Dutch Government has the right to recognise or otherwise the right to which was granted to the ship by Panama ’.

51

fly the Panamanian flag

Thus, the Court of Appeal held that ‘ it cannot

be said on the basis of the examination at the sitting that the MS on account of the absence of a genuine link ’.

Magda Maria

was stateless

52

The second case involves the Advisory Opinion in the Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organisation (IMCO) of 1960. In this case, the ICJ was asked to answer to the question with regard to the validity of the constitution of the Maritime Safety Committee of the IMCO. Under Article 28(a) of the Convention of the IMCO, the members of the Maritime Safety Committee consisted of fourteen members elected by the Assembly which included the world ’s eighth largest shipowning countries. Nonetheless, Liberia and Panama were not elected to the Committee, although they ranked third and eighth on the world tonnage scale at that time. In the course of arguments, it was contended that the Assembly was entitled to take the concept of a genuine

48

link

52

consideration

in

assessing

the

ship-owning

size

of

McDougal et al., ‘Maintenance of Public Order at Sea’, p. 35; R. A. Barnes, ‘Flag States’, in p. 307.

49

into

(1982) 13

Ibid

NYIL

, pp. 381– 391.

., pp. 351–352.

50

(1985) 16

NYIL

, pp. 514–518.

51

(1989) 20

each

country.

Oxford Handbook

NYIL

, p. 351.

,

197 Marine Spaces Beyond National Jurisdiction However, the ICJ ruled that the concept of the genuine link was irrelevant for the purpose of the Advisory Opinion; and that the determination of the largest ship-owning nations depends solely upon the tonnage registered in the countries in question. Hence, the Court concluded, by nine votes to

five, that the Maritime Safety Committee of the IMCO was not

constituted in accordance with the Convention for the Establishment of the Organisation.

53

The third case is the 1999 M/V ‘Saiga’ (No. 2) decision. In this case, Guinea claimed that there was no genuine link between the Saiga and Saint Vincent and the Grenadines, and, consequently, it was not obliged to recognise the claims of Saint Vincent and the Grenadines in relation to the ship.

54

ITLOS noted the fact that, in the legislative process of Article

5(1) of the Geneva Convention on the High Seas, the proposal that the existence of a genuine link should be a basis for the recognition of nationality was not adopted.

55

Article

91 of the LOSC followed the approach of the Convention on the High Seas. Hence ITLOS concluded that the purpose of Article 91 was 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.

56

The fourth example is the 2014 M/V Virginia G case between Panama and Guinea-

firmed the dictum in the M/V ‘Saiga’ (No. 2) decision, stating sentence, of the LOSC requiring a genuine link between the flag

Bissau. In this case, ITLOS reaf that Article 91(1), third

State and the ship, ‘ should not be read as establishing prerequisites or conditions to be satis

fied for the exercise of the right of the flag State to grant its nationality to ships . ’

57

Overall the jurisprudence seems to suggest that a State cannot refuse to recognise the right of the ship to

fly the flag of the flag State because of the absence of a genuine link. If

this is the case, the only remedy for the violation of the obligation to ensure a genuine link is to report the facts concerning the absence of proper jurisdiction and control to the

flag

State as provided for in Article 94(6) of the LOSC. However, some doubts can be expressed regarding whether the right to report under Article 94(6) alone would be adequate to secure effective implementation of the duties of the

flag

58

State.

Thus ITLOS, in its Advisory

Opinion of 2015, added an obligation which is not explicitly provided in Article 94(6), stating that the

flag State that received a report is:

obliged to investigate the matter upon receiving such a report and, if appropriate, take any action necessary to remedy the situation. The Tribunal is of the view that the

fl

ag State is under

59

the obligation to inform the reporting State about the action taken.

53 55 56

ICJ Reports 1960, p. 171.

54

The M/V ‘Saiga’ (No. 2) case, ITLOS Reports 1999, p. 39, paras. 75–76.

Ibid., pp. 40–41, para. 80. Ibid., p. 42, para. 83. Yet, Scovazzi questioned the Tribunal’s view. T. Scovazzi, ‘ITLOS and Jurisdiction over Ships’, in H. Ringbom (ed.), Jurisdiction Over Ships: Post-UNCLOS Developments in the Law of the Sea (Leiden, Brill/Nijhoff, 2015), pp. 382–390.

57 58

The M/V Virginia G case, ITLOS Reports 2014, p. 44, para. 110. T. Scovazzi, ‘The Contribution of the Tribunal to the Progressive Development of International Law’, in ITLOS, The Contribution of the International Tribunal for the Law of the Sea to the Rule of Law: 1996 –2016 (Leiden, Brill/Nijhoff, 2018), p. 151.

59

Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion, ITLOS Reports 2015, p. 36, para. 118.

198

International Law Governing Jurisdictional Zones If this does not occur, State responsibility for the breach of obligations of the arise.

flag State will

60

2.6 Exceptions to the Exclusive Jurisdiction of the Flag State (1): The Right of Visit (a) General Considerations

flag State applies to warships as well as

The principle of the exclusive jurisdiction of the

ships used only on government non-commercial service without any exception. This is clear from Articles 95 and 96 of the LOSC.

61

On the other hand, private ships are subject to

two types of exception. The

first exception involves the right of visit. The right of visit is exercised by a warship

or a military aircraft in order to intercept foreign vessels on the high seas pursuant to Article 110. In essence, the right of visit seeks to reinforce an international order on the high seas. The second exception concerns the right of hot pursuit. The hot pursuit of a foreign ship may be undertaken by the competent authorities of the coastal State by virtue of Article 111. As the Annex VII Arbitral Tribunal stated in the

Arctic Sunrise

Arbitration, the right of

hot pursuit serves to prevent foreign ships that have violated the laws and regulations of a coastal State from evading responsibility by

fleeing to the high seas.

62

In so doing, the right

of hot pursuit seeks to safeguard the interests of coastal States. It will be appropriate to commence our consideration with the right of visit. The right of visit is provided in Article 110(1) of the LOSC as follows:

1. Except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity

fi

in accordance with articles 95 and 96, is not justi ed in boarding it unless there is reasonable ground for suspecting that: (a) the ship is engaged in piracy; (b) the ship is engaged in the slave trade; (c) the ship is engaged in unauthorized broadcasting and the

flag State of the warship has

jurisdiction under article 109; (d) the ship is without nationality; or (e) though

flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same

nationality as the warship.

Article 110(1) distinguishes two cases where the foreign warship or the military aircraft may exercise the right of visit.

60

In this regard, Scovazzi argued: ‘For instance, the non-recognition of the right to grant the national

flag

could be a rightful countermeasure against a state that has persistently violate the obligation to ensure the existence of a genuine link’. Scovazzi, ‘The Contribution of the Tribunal’, p. 152. 61

Ships owned by a government may be regarded as private ships if such ships are involved in commercial activities.

62

The

Arctic Sunrise

Arbitration Award (Merits), para. 245.

199 Marine Spaces Beyond National Jurisdiction The

first is the case where acts of interference derive from powers conferred by specific

treaties. In those cases, only the States Parties to relevant conventions are entitled to exercise the right of visit on vessels

flying the flag of other States Parties. In fact, some fishery treaties

allow a State Party to board and inspect vessels of other Parties on the high seas.

63

The second case involves the right of visit with respect to activities of foreign vessels enumerated in Article 110(1). In this case, the warship or military aircraft may send a boat under the command of an of

ficer to the suspected ship in order to verify the ship s right to ’

fly its flag. If suspicion remains after the documents have been checked, it may proceed to a further examination on board the ship (Article 110(2)). If the suspicions prove to be unfounded, however, it shall be compensated for any loss or damage that may have been sustained pursuant to Article 110(3). Next, the exceptions listed in Article 110(1) must be brie

fly examined.

(b) Piracy The suppression of piracy is a well-established exception to the exclusive jurisdiction of the

flag State. Under customary law and Article 105 of the LOSC, every State may seize a pirate ship or aircraft and arrest suspected pirates. This exception seeks to safeguard the common interest of the international community as a whole in protecting the freedom of navigation and human life. The international law of piracy will be discussed in the context of maritime security.

64

(c) Slave Trade From the early nineteenth century, a large number of international treaties have been concluded with regard to the abolition and suppression of the slave trade. On 2 July 1890, the General Act for the Repression of African Slave Trade was adopted by the Anti-Slavery Conference held in Brussels. The General Act was signed and rati

fied by seventeen States. The

General Acts provided the reciprocal right of visit, of search and of seizure of vessels whose tonnage is less than 500 tons in the limited zone, namely, the Indian Ocean and the Red Sea.

65

In 1926, the Slavery Convention was adopted by the Assembly of the League of Nations and signed by the representatives of thirty-six States.

66

In 1956, the Supplementary Convention

on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery was adopted.

67

Unlike the 1890 General Act, those conventions do not provide the right of

visit, search and seizure.

63 65

See Chapter 7, sections 6.2 and 6.3 of this book.

64

See Chapter 11, section 2 of this book.

United Nations, ‘The Relation between the Articles Concerning the Law of the Sea Adopted by the International Law Commission and International Agreements Dealing With the Suppression of the Slave Trade’, A/CONF.13/7,

Official Records of the United Nations Conference on the Law of the Sea, vol. 1 (Geneva,

United Nations, 1958), p. 166. 66

60

UNTS, p. 253. Entered into force 9 March 1927. Under Article 1(1) of the 1926 Slavery Convention,

fi ned as

‘slavery’ is de

‘the status or condition of a person over whom any or all of the powers attaching to the

right of ownership are exercised’. 67

266

UNTS, p. 2. Entered into force 30 April 1957.

200 International Law Governing Jurisdictional Zones However, the right of visit was revived in Article 23 of the Convention on the High Seas and Article 110 of the LOSC. One can say that the right of visit to a ship that is engaged in the slave trade represents customary law. In the case of the suppression of the slave trade, it is generally considered that enforcement jurisdiction beyond the right of visit is limited to the

flag

State.

68

Under Article 99, every State is obliged to take effective measures to

fly its flag and to prevent flag for that purpose. Any slave taking refuge on board any ship,

prevent and punish the transport of slaves in ships authorised to the unlawful use of its

flag, shall ipso facto be free.

whatever its

A contemporary issue that may arise in this context is whether or not Article 110(1)(b)

ficking on the high seas. It would appear that the

can apply to interception of human traf

finition

de

of slavery under the 1926 Slavery Convention no longer corresponds with

contemporary forms of human traf

ficking.

This notwithstanding, there may be some

scope for arguing that the concept of ‘ slaves’ should be interpreted in a contemporary evolutionary

perspective

since, as the

Universal

Declaration of

Human Rights states,

slavery and the slave trade shall be prohibited in all their forms. In fact, with a view to intensifying national and international efforts towards the abolition of slavery, the slave trade and practices similar to slavery, the Supplementary Convention of 1956 added four forms of ‘ a person of servile status’: (i) debt bondage, (ii) serfdom, (iii) forced marriage and the traf

ficking

ficking

of women, and (iv) the traf

age of eighteen years. against Traf

69

in slavery for victims’ . human traf

Further, the 2005 Council of Europe Convention on Acting

ficking in Human Beings states that 70

ficking

and exploitation of children under the

‘ traf

ficking in human beings may result

Thus it may not be unreasonable to consider that some forms of

may qualify as ‘slavery ’ in a contemporary perspective. If this is the

case, theoretically at least, Article 110(1)(b) of the LOSC may afford the legal basis for the right of visit on the high seas upon vessels reasonably suspected of engaging in human traf

ficking

term.

that could be considered as slave trade in the contemporary meaning of the

71

(d) Unauthorised Broadcasting The Geneva Convention on the High Seas contains no rule with regard to the repression of unauthorised broadcasting. In the early 1960s, however, unauthorised broadcasting from the high seas became a matter of concern particularly in Europe. Unauthorised broadcasting may create various problems, such as electrical interference with licensed broadcasts and frequencies used for distress calls, copyright of broadcast materials and taxation.

68 69 70 71

72

Thus, in 1965, the European Agreement for the Prevention of Broadcasting

Churchill and Lowe, Law of the Sea, p. 212; T. Treves, ‘High Seas’, in Max Planck Encyclopedia, para. 19. Article 1. Text in: 266 UNTS, p. 3. Entered into force 30 April 1954. Preamble. Entered into force 1 February 2008. Text in: 2569 UNTS, p. 33. E. Papastavridis, The Interception of Vessels on the High Seas: Contemporary Challenges to the Legal Order of the Oceans (Oxford, Hart Publishing, 2013), pp. 267–275.

72

Generally on this issue, see N. March Hunnings, ‘Pirate Broadcasting in European Waters’ (1965) 14 ICLQ, pp. 410– 433.

201 Marine Spaces Beyond National Jurisdiction Transmitted from Stations Outside National Territories was adopted under the auspices of the European Council.

73

Under Article 3 of the 1965 Agreement, each Contracting

Party shall punish their nationals who have committed or assisted unauthorised broadcasting on its territory, ships or aircraft, or outside national territories on any ships, aircraft or any other

floating

or airborne object. Each Contracting Party shall also

punish non-nationals who, on its territory, ships or aircraft, or on board any or

airborne

object

under

its

jurisdiction,

have

committed

or

assisted

floating

unauthorised

broadcasting. Thus the 1965 Agreement did not depart from the principle of the exclusive jurisdiction of the

flag State.

flag

However, the LOSC allows non-

States to exercise jurisdiction over unauthorised

broadcasting. Under Article 109(2) of the LOSC, ‘ unauthorised broadcasting’ means ‘ the transmission of sound radio or television broadcasts from a ship or installation on the high seas intended for reception by the general public contrary to international regulation, but excluding the transmission of distress calls ’. All States are required to cooperate in the suppression of unauthorised broadcasting from the high seas in accordance with Article 109 (1).

Under

Article

109(3),

any

person

engaged

in

unauthorised

broadcasting

may

be

prosecuted before courts of the following:

(a) the

flag State of the ship;

(b) the State of registry of the installation; (c) the State of which the person is a national; (d) any State where the transmissions can be received; or (e) any State where authorised radio communication is suffering interference.

On the high seas, a State having jurisdiction in accordance with paragraph 3 may, in conformity with Article 110, arrest any person or ship engaged in unauthorised broadcasting and seize the broadcasting apparatus pursuant to Article 109(4). Thus, unlike in the case of piracy, Article 109 does not set out a universal jurisdiction with regard to the suppression of unauthorised broadcasting.

(e) Ship Without Nationality While the situation in which a vessel loses its nationality may be rare, stateless vessels exist in reality. At least two possible situations can be identi

fied.

First, under Article 92(2) of the LOSC, a ship which sails under the

flags of two or more

States as a matter of convenience may be ‘ assimilated to a ship without nationality’ , namely a stateless ship. Such a ship may not claim any of the nationalities in question with respect to any other State.

flag State revokes the registration of the vessel because of the continued violation of the laws of the flag State. A ship may also become Second, a ship may become stateless if its

73

634

UNTS, p. 239. Entered into force 19 October 1967.

202

International Law Governing Jurisdictional Zones stateless if the ship revokes its registration of its own accord for some reasons and does not acquire another nationality.

74

A ship without nationality is without protection under customary law. Thus Article 110 (1) and (2) of the LOSC empowers a warship or a military aircraft to visit and verify the ship ’s right to

fly

its

flag

where there is a reasonable ground to suspect that the ship is

without nationality. Yet the LOSC is silent on the legal consequences of being a stateless vessel. On the basis of the practice of the United States, O’ Connell argued that when a ship loses its nationality, its status becomes a question for the municipal law of the owners, and that law is likely to regulate the ship.

75

In this regard, care should be taken in noting that 76

the national State of the individual on the stateless vessel enjoys diplomatic protection.

A more appropriate interpretation seems to be that some jurisdictional nexus between a stateless vessel and an interdicting State is needed to justify seizure of the vessel.

77

In any

case, it seems clear at least that, unlike in the case of piracy, the LOSC does not provide universal jurisdiction over a stateless vessel.

(f ) Ships With Suspicious Nationality Concerning ships with suspicious nationality, Article 110(1)(e) provides that a warship or a

fly its flag where there is a reasonable flying a foreign flag or refusing to show its flag, is

military aircraft may visit and verify the ship ’s right to ground for suspecting that a ship, though

of the same nationality as the warship in reality. It is universally recognised that warships of every State may seize, and bring to a port of their own for punishment, any foreign vessel sailing under the same

flag as the inspecting warship without any authorisation.

78

2.7 Exceptions to the Exclusive Jurisdiction of the Flag State (2): The Right of Hot Pursuit Hot pursuit is the legitimate chase of a foreign vessel on the high seas following a violation of the law of the pursuing State committed by the vessel within the marine spaces under the pursuing State’ s jurisdiction. The right of hot pursuit seems to be, to a considerable extent, a product of Anglo-Saxon jurisprudence. 80

North case of 1906.

79

Indeed, the right was clearly recognised in the

Presently the right of hot pursuit is enshrined in both Article 23 of the

Geneva Convention on the High Seas and Article 111 of the LOSC. The right of hot pursuit is subject to several requirements. (i) The hot pursuit must be undertaken by warships or military aircraft, or other ships or aircraft clearly marked and identi

fiable as being on government service and authorised to

that effect in accordance with Article 111(5).

74

T. L. McDorman, ‘Stateless Fishing Vessels, International Law and the U.N. High Seas Fisheries Conference’ (1994) 25 Journal of Maritime Law and Commerce, p. 531 and pp. 533–534.

75 77 78

O’Connell, The International Law of the Sea, p. 756.

76

Churchill and Lowe, Law of the Sea, p. 214.

Ibid.; D. Guilfoyle, Shipping Interdiction and the Law of the Sea (Cambridge University Press, 2009), p. 17. Sir Robert Jennings and Sir Arthur Watts (eds.), Oppenheim’ s International Law, 9th edn, vol. 1, Peace (Harlow, Longman, 1992), p. 737.

79 80

O’Connell, The International Law of the Sea, p. 1076. The King v The ‘North’ (1908) 2 AJIL, pp. 688–707 (see in particular, p. 699).

203 Marine Spaces Beyond National Jurisdiction (ii) The hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State. It follows that the alleged illicit conduct of the foreign ship is crucial. If the foreign ship is within a contiguous zone, the pursuit may only be undertaken if there has been a violation of the rights for the protection of which the zone was established, that is to say, customs,

fiscal,

immigration or sanitary laws (Article 111(1)).

A controversial issue is whether attempted offences give rise to a right of hot pursuit. In drafting Article 23 of the Geneva Convention on the High Seas, which is essentially equivalent to Article 111(1) of the LOSC, Brazil proposed to the ILC that the draft Article should refer to an offence which was about to be committed. In this regard, the ILC seemed to consider that the suggestion was already implied in the text.

81

Hence it can be argued

that the right of hot pursuit is exercisable with regard to attempted offences. (iii)

Since,

in

essence,

hot

pursuit

is

a

temporary

extension

of

the

82

coastal

State’ s

jurisdiction onto the high seas, the pursuit must be commenced when the foreign ship or one of its boats is within the internal waters, the archipelagic waters, the territorial sea or the contiguous zone of the pursuing State pursuant to Article 111(1).

83

The right of hot

pursuit is to apply mutatis mutandis to violations of the laws and regulations of the coastal State in the EEZ or on the continental shelf, including safety zones around continental shelf installations in accordance with Article 111(2). (iv) The pursuit may only be commenced after a visual or auditory signal to stop has been given at a distance which enables it to be seen or heard by the foreign ship in conformity with Article 111(4). This requirement is a replica of Article 23(3) of the TSC. In this regard, the ILC took the view that the words ‘visual or auditory signal’ exclude signals given at a great distance and transmitted by wireless.

84

In this connection, the use of radio signals was

at issue in the R. v Mills and Others case of 1995. In light of the development of modern technology, Judge Devonshire at Croydon Crown Court ruled that the transmission of the radio signals complied with the preconditions of the Convention on the High Seas concerning the right of hot pursuit.

85

Furthermore, the Annex VII Arbitral Tribunal in the 2015

Arctic Sunrise Arbitration held that the parameters of the right of hot pursuit must be interpreted in the light of their object purpose, having regard to the modern use of technology, and that VHF messages presently constitute the standard means of communication between ships at sea and can ful

fil the function of informing the pursued ship.

86

(v) The pursuit must be hot and continuous. Article 111(1) makes clear that hot pursuit ‘ may only be continued outside the territorial sea or the contiguous zone if the pursuit has

not been terminated ’. The aircraft giving the order to stop must itself actively pursue the ship until a ship or another aircraft of the coastal State arrives to take over the pursuit, unless the aircraft is itself able to arrest the ship pursuant to Article 111(6)(b). It is also

81 82 84 85 86

See (1956) YILC, vol. 2, p. 40; ibid., vol. 1, p. 50. O’Connell, The International Law of the Sea, pp. 1088–1089.

83

See also Article 111(4).

(1956) YILC, vol. 2, p. 285. W. C. Gilmore, ‘Hot Pursuit: The Case of R. v Mills and Others’ (1995) 44 ICLQ, p. 957. The Arctic Sunrise Arbitration Award (Merits), para. 259.

204 International Law Governing Jurisdictional Zones recognised that hot pursuit can be transferred between ships, although there is no explicit provision on this particular matter.

87

The requirement of continuous pursuit was at issue in

the Arctic Sunrise Arbitration. In this case, a question was raised regarding whether the

Arctic Sunrise, a vessel

flying

the

flag

of the Netherlands and chartered by Greenpeace

International in order to protest against the Russian offshore oil platform located in the Pechora Sea within the EEZ of Russia, was continuously pursued by the Russian Coast Guard vessel Ladoga. In this regard, the Annex VII Arbitral Tribunal found that the pursuit of the Arctic Sunrise by the Russian Coast Guard vessel was interrupted and that therefore one of the necessary conditions set out in Article 111 for a lawful exercise of the right of hot pursuit was not met.

88

(vi) The right of hot pursuit ceases as soon as the ship pursued enters the territorial sea of its own State or of a third State pursuant to Article 111(3), since pursuit in the territorial sea of another State would violate the territorial sovereignty of that State. It would follow that hot pursuit may continue in the EEZ of a third State. Where the hot pursuit was unjusti

fied,

compensation shall be paid for any loss or damage that may have been sustained thereby under Article 111(8). According to ITLOS, the conditions for the exercise of the right of hot pursuit under this provision are cumulative, and each of them has to be satis pursuit to be legitimate under the LOSC.

fied for the

89

The right of hot pursuit raises at least three issues that need further consideration. The

first issue relates to the validity of hot pursuit that involves ships in pursuit from two or more coastal States. Examples of so-called ‘multilateral hot pursuit ’ can be found in the Southern Ocean. In 2001, the Togo-registered South Tomi was pursued from Australia ’s EEZ by the Australian-

flagged

Southern Supporter. After a fourteen-day chase covering a

distance of 3,300 nautical miles, the South Tomi was

finally

apprehended by Australian

personnel with the aid of two South African vessels. In 2003, after a twenty-day hot pursuit, covering 3,900 nautical miles, the Uruguayan-

flagged fishing vessel Viarsa 1

was appre-

hended by the Southern Supporter with the aid of South African- and United Kingdom-

flagged vessels. Considering that these pursuits satisfied the conditions of hot pursuit and of ficials of the coastal State that initiated the pursuit could formally apprehend the suspected vessels, one can say that the multilateral hot pursuits in the cases of the South 90

Tomi and Viarsa 1 were not at variance with Article 111 of the LOSC.

Later, in 2003,

Australia and France concluded a bilateral treaty which is applicable in the Southern 91

Ocean.

87

Article 3(3) of this treaty allows each Party to request assistance from the other

(1956) YILC, vol. 2, p. 285, para. 2(c). In fact, in the I ’m Alone case between Canada and the United States, two United States coastguard vessels were involved in the hot pursuit. 3 RIAA, pp. 1609 et seq .

88

The Arctic Sunrise Arbitration Award (Merits), para. 275.

89

The M/V ‘ Saiga’ (No. 2) case, ITLOS Reports 1999, p. 59, para. 146.

90

E. J. Molenaar, ‘Multilateral Hot Pursuit and Illegal Fishing in the Southern Ocean: The Pursuits of the Viarsa

1 and the South Tomi’ (2004) 19 IJMCL, pp. 19– 42. 91

Treaty between the Government of Australia and the Government of the French Republic on Cooperation in the Maritime Areas Adjacent to the French Southern and Antarctic Territories (TAAF), Heard Island and the McDonald Islands. Entered into force 1 February 2005. For the text of the Treaty, see (2004) 19 IJMCL, pp. 545 et seq .

205 Marine Spaces Beyond National Jurisdiction Party when engaged in a hot pursuit. Article 4 of the 2003 Treaty allows a vessel or other craft authorised by one of the Parties to continue hot pursuit through the territorial sea of the other Party under certain conditions. The second issue involves the validity of the doctrine of constructive presence.

92

This

doctrine allows the coastal State to arrest foreign ships which remain on the high seas but commit an offence within the territorial sea or the EEZ by using their boats. The doctrine of constructive presence may operate with the right of hot pursuit. In this regard, a classical case is the Tenyu Maru case of 1910.

93

The Japanese schooner, the Tenyu Maru, laid off

from shore about 11.5 miles off the Pribilof seal islands and sent her boats out hunting seals. On 9 July 1909, the US revenue cutter discovered two boats within about 1.5 miles of the shores of Otter Island. The cutter captured a boat within the 3-mile limit from shore and the other after crossing the 3-mile line. The Tenyu Maru, together with her captain and crew, was conveyed by the cutter to Dutch Harbour, Alaska. In this case, District Judge Over

field

considered: ‘The schooner was therefore just as much “engaged in” killing the

seals, under the statutes, when the small boat was captured within the three-mile limit on July 9th as though she had been standing within the zone at the time, in the absence of any evidence showing extenuating circumstances.’ United States.

94

Thus, the Tenyu Maru was forfeited to the

95

The doctrine of constructive presence seems to be implicitly recognised in Article 23(3) of the Convention on the High Seas and Article 111(4) of the LOSC. However, it appears that the validity of extensive constructive presence needs further consideration. While simple constructive presence involves the case where the ship ’ s own boats are used to establish the nexus, extensive constructive presence concerns the case where other boats are used. 97

The doctrine of extensive constructive presence was upheld in R. v Mills and Others.

96

The

Poseidon, a ship registered in Saint Vincent and the Grenadines, transferred 3.25 tons of cannabis to a British-registered

fishing trawler, the Delvan, on the high seas. The

Delvan

had set out from Cork in the Republic of Ireland for this purpose. The Delvan headed to the United Kingdom and, later, it arrived in the south-coast port of Littlehampton. The cargo was unloaded there but the shore party was arrested shortly thereafter. Next, the Poseidon was arrested by the British task force on the high seas. A question arose of whether the relationship between the Poseidon and the Delvan was such as to satisfy the requirements set out in Article 23(3) of the Convention on the High Seas, namely teamwork and the existence of a mother-ship relationship. On this issue, Judge Devonshire took the view that 98

there was the existence of a mother-ship relationship.

92 93

O’Connell, The International Law of the Sea, pp. 1092–1093; Churchill and Lowe, Law of the Sea, p. 215. 4 Alaska 129 (1910). This case was reproduced in K. R. Simmonds, Cases on the Law of the Sea, vol. 4 (New York, Oceana, 1984), pp. 33– 46.

94 97 98

Ibid., p. 41.

95

Ibid., p. 46.

96

O ’Connell, The International Law of the Sea, p. 1093.

Gilmore, ‘Hot Pursuit ’, pp. 950– 953. Ibid., p. 955. While the United Kingdom was a Party to the Convention on the High Seas, Saint Vincent and the Grenadines was not. But the judge considered that Article 23 of the Convention concerning hot pursuit

fi cation of pre-existing customary international law. Ibid., pp. 953

constituted a codi

–954.

206 International Law Governing Jurisdictional Zones The third issue to be addressed involves the use of force in the exercise of the right of hot 99

pursuit. An often-quoted case on this matter is the I ’m Alone case.

The I ’m Alone, which

was a British ship of Canadian registry, engaged in smuggling liquor into the United States. The vessel was sighted within one hour ’s sailing time from the United States by the coastguard cutter, the Wolcott. As the I ’m Alone refused to stop, the Wolcott pursued the vessel onto the high seas. Still in hot pursuit, another revenue cutter, the Dexter, joined the pursuit and, on 22 March 1929, the I ’m Alone was sunk on the high seas in the Gulf of Mexico by the revenue cutter. The Joint Interim Report of the Commissioners of 1933 stated:

[I]f sinking should occur incidentally, as a result of the exercise of necessary and reasonable force for such purpose [of effecting the objects of boarding, searching, seizing and bringing into 100

port the suspected vessel], the pursuing vessel might be entirely blameless.

In light of the circumstances in this case, however, the Commissioners considered that the

fied

admittedly intentional sinking of the suspected vessel was not justi

by anything in

the 1924 Convention between the United States of America and Great Britain to Aid in the Prevention of the Smuggling of Intoxicating Liquors into the United States.

101

Finally, in

the Joint Final Report of 1935, the Commissioners found that the sinking of the vessel was not justi

fied by the 1924 Convention or by any principle of international law.

102

More recently, the use of force in hot pursuit was in issue in the M/V ‘Saiga’ (No. 2) case. In this case, ITLOS held:

The normal practice used to stop a ship at sea is

fi

rst to give an auditory or visual signal to stop,

using internationally recognized signals. Where this does not succeed, a variety of actions may be taken, including the

fi

ring of shots across the bows of the ship. It is only after the

appropriate actions fail that the pursuing vessel may, as a last resort, use force.

In this case, the Guinean of

103

ficers fired at the Saiga with live ammunition indiscriminately.

As a consequence, considerable damage was done to the ship and, more seriously, caused severe injuries to two of the persons on board. Thus ITLOS ruled that Guinea used excessive force and endangered human life before and after boarding the Saiga, and thereby violated 104

the rights of Saint Vincent and the Grenadines under international law.

Those precedents suggest that the use of force is a last resort and must be necessary and reasonable. In this regard, Article 22(1)(f ) of the 1995 Fish Stocks Agreement requires that the inspecting State shall ensure that its duly authorised inspectors:

99 103

3 RIAA, pp. 1609–1618.

100

Ibid., p. 1615.

101

Ibid.

102

The M/V ‘Saiga’ (No. 2) case, ITLOS Reports 1999, p. 62, para. 156.

Ibid., p. 1617. 104

Ibid., p. 1356, paras. 158–159.

207

Marine Spaces Beyond National Jurisdiction

avoid the use of force except when and to the degree necessary to ensure the safety of the inspectors and where the inspectors are obstructed in the execution of their duties. The degree of force used shall not exceed that reasonably required in the circumstances.

Likewise, Article 9 of the 2005 SUA Convention provides: ‘Any use of force pursuant to this article shall not exceed the minimum degree of force which is necessary and reasonable in 105

the circumstance. ’

2.8 Exceptional Measures for Interception of Foreign Vessels on the High Seas

In addition to the above exceptions,

106

the principle of the exclusiveness of

flag

State

jurisdiction on the high seas may be varied in three situations. First, it is possible to depart from the principle of the exclusiveness of

flag

State jurisdiction by speci

A particular example is the regulation of illicit traf

fic

fic

treaties.

in narcotic drugs or psychotropic

substances by sea. Second, the issue arises as to whether or not the interference with foreign vessels on the high seas can be justi

fied by self-defence. Third, consideration must be given

to interception of vessels on the high seas for counter-migration purposes.

fi c in Narcotic Drugs or Psychotropic Substances

(a) The Regulation of Illicit Traf

The use of private vessels for illicit traf

fic in narcotic drugs has long been a serious problem.

This problem has been addressed by a series of treaties, including:

• The 1961 Single Convention on Narcotic Drugs,

107 108

• The 1971 Convention on Psychotropic Substances, • The 1988 UN Convention against Illicit Traf

fic in Narcotic Drugs and Psychotropic

109

Substances,

• The 1995 Council of Europe Agreement on Illicit Traf

fic by Sea (hereinafter the Council of

110

Europe Agreement),

• The 2003 Agreement Concerning Co-operation in Suppressing Illicit Maritime and Air

Traf

ficking in Narcotic Drugs and Psychotropic Substances in the Caribbean Area

(hereinafter the 2003 Caribbean Agreement),

111

and

• The 2008 CARICIM Maritime and Airspace Security Co-operation Agreement.

105 106

112

The 2005 SUA Convention will be discussed in Chapter 11, section 3.1. Where the coastal State has not claimed its EEZ, the rights of that State in the contiguous zone constitute a further exception.

107 108 109

UNTS, p. 151. Entered into force 13 December 1964. Amended by the 1972 Protocol. UNTS, p. 175. Entered into force 16 August 1976. 1582 UNTS, p. 165. Entered into force 11 November 1990. See also J. Gurulé, The 1988 U.N. Convention against Illicit Traf fic in Narcotic Drugs and Psychotropic Substances: A Ten Year Perspective. Is International Cooperation Merely Illusory? (1998) 22 Fordham International Law Journal , pp. 74 121. 2136 UNTS, p. 79. Entered into force 1 May 2000. See also W. C. Gilmore, Narcotics Interdiction at Sea: The 1995 Council of Europe Agreement (1996) 20 Marine Policy , pp. 3 14. 520

1019

‘

’

110

’

111 112

–

‘

–

Entered into force 10 April 2003. The electronic text is available at: www.state.gov/s/l/2005/87198.htm. See Article II(2)(a). Text in: (2008) 68

Law of the Sea Bulletin, p. 20. Not entered into force.

208 International Law Governing Jurisdictional Zones In addition, there is an array of bilateral treaties on this subject. Article 27(1)(d) of the LOSC provides the coastal State’s criminal jurisdiction on board a foreign ship passing through the territorial sea for the suppression of illicit traf

fic

in

narcotic drugs or psychotropic substances. Furthermore, Article 108(1) of the LOSC places an obligation upon all States to cooperate in the suppression of drug smuggling at sea. Under Article 108(2), any State which has reasonable grounds for believing that a ship

flying its flag is engaged in illicit traffic in narcotic drugs or psychotropic substances may request the cooperation of other States to suppress such traffic. Yet the LOSC provides no basis for boarding drug smuggling vessels by non- flag States on the high seas. At the multilateral level, the 1988 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances is of particular importance.

113

This Convention aims to

promote cooperation among the Parties in order to address more effectively the various aspects of such traf

fic that have an international dimension.

114

Of note here is the boarding

and searching of foreign suspected vessels on the high seas. Under Article 17(3) of the 1988 Convention, a Party which has reasonable grounds to suspect that a vessel exercising

flying the flag of another Party is engaged in illicit traffic may so notify the flag State, request confirmation of registry and, if con firmed, request authorisation from the flag State to take appropriate measures in regard to that vessel. In this case, pursuant to Article 17(4), the flag State may authorise the requesting State to, inter alia: (a) board the vessel; (b) search the vessel; and (c) if evidence of involvement in illicit traffic is freedom of navigation

found, take appropriate action with respect to the vessel, persons and cargo on board. Action under Article 17(4) is to be carried out only by warships or military aircraft, or other governmental ships in accordance with Article 17(10). A Party which has taken any action in accordance with Article 17 is under a duty to promptly inform the

flag State concerned of

the results of that action.

fied by the 1995 Council of Europe Agreement. Under Article

Article 17 was further ampli

6 of the Agreement, where the intervening State has reasonable grounds to suspect that a vessel

flying the flag of another Party is engaged in the commission of a relevant offence, flag State to stop and board the

the intervening State may request the authorisation of the

vessel in waters beyond the territorial sea of any Party and to take some or all of the other actions speci

fied in this Agreement.

115

The

flag State is to communicate a decision thereon

as soon as possible and, wherever practicable, within four hours of receipt of the request in

flag State, the interfied in Article 9(1), such as stopping and boarding the

accordance with Article 7. Having received the authorisation of the vening State may take actions speci vessel.

116

To give another example: Article 16(1) of the 2003 Caribbean Agreement provides:

113 115

Gurulé, ‘The 1988 U.N. Convention’, pp. 74–121.

114

Article 2(1).

‘Intervening State ’ means a State Party which has requested or proposes to request authorisation from

another Party to take action under the Agreement in relation to a vessel

flying the flag or displaying the

marks of registry of that other State Party (Article 1(a)). 116

Actions under Article 9(1) are to be carried out only by warships or military aircraft, or governmental ships and aircraft pursuant to Article 11(2).

209 Marine Spaces Beyond National Jurisdiction fi

[W]hen law enforcement of cials of one Party encounter a suspect vessel claiming the nationality of another Party, located seaward of any State’s territorial sea, this Agreement constitutes the authorisation by the claimed

flag State Party to board and search the suspect ficials in order to determine

vessel, its cargo and question the persons found on board by such of

fic.

if the vessel is engaged in illicit traf

It follows that the rati

fication of the Agreement itself furnishes an a priori authorisation for

boarding foreign suspected vessels on the high seas. This procedure can enhance expediency in law enforcement since there is no need for the intervening States to wait for the response from the

flag

State with regard to the request of authorisation for boarding.

117

Some bilateral treaties also provide a priori authorisation for the boarding of ships for the purpose of the suppression of illicit drug traf

fic at sea.

118

It is important to note that, under

the above mentioned treaties, interception of foreign vessels on the high seas relies on the

flag State. In this sense, these treaties do not change the principle of exclusive jurisdiction of the flag State. authorisation of the

(b) Self-defence on the High Seas There is no doubt that States have the inherent right of self-defence under international law,

119

but can interference with foreign ships on the high seas be justi

self-defence? After World War II, States have sometimes justi

fied by the right of

fied interference with foreign

vessels on the high seas on the basis of the right of self-defence. During the Algerian Emergency between 1956 and 1962, for example, the French Navy undertook to visit and search a considerable number of foreign ships on the high seas with a view to stemming the

flow of arms and munitions into Algeria. Nonetheless, most of the States whose ships were affected by the French naval operation protested, and, in some cases, gave rise to serious diplomatic Germany.

dif

ficulties,

particularly

between

France

and

the

Federal

Republic

of

120

Another well-known incident concerns the Cuban Quarantine in the 1962 Cuban missile crisis.

121

On 23 October 1962, the Organization of American States called for the with-

drawal of missiles from Cuba, and recommended that the Member States take all measures

117 118

Papastavridis, The Interception of Vessels on the High Seas, p. 223. Examples include: the 1981 UK –US Exchange of Notes (para. 1), 1285 UNTS, p. 197; the 1990 Treaty between Spain and Italy to Combat Illicit Drug Traf

ficking at Sea (Article 5), (1995) 29

Law of the Sea

Bulletin , p. 77; the 1996 Agreement between the Government of the Republic of Trinidad and Tobago and the Government of the United States of America Concerning Maritime Counter-Drug Operations (para. 11). Text in: Treaties and Other International Acts Series (TIAS) 12732. 119

Article 51 of the Charter of the United Nations; J. Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge University Press, 2002), p. 166.

120

O ’Connell, The International Law of the Sea, pp. 805 –806; R. C. F. Reuland, ‘Interference with Non-National Ships on the High Seas: Peacetime Exceptions to the Exclusive Rule on Flag-State Jurisdiction ’ (1989) 22 Vanderbilt Journal of Transnational Law, pp. 1218– 1219.

121

O ’Connell, The International Law of the Sea, pp. 807– 808; Reuland, ‘Interference with Non-National Ships’, pp. 1219–1220.

210

International Law Governing Jurisdictional Zones under the Inter-American Treaty of Reciprocal Assistance. Pursuant to this resolution, US President Kennedy immediately ordered that the United States Navy interdict the delivery of offensive weapons to Cuba and, thus, any ship proceeding towards Cuba might be ordered to submit to visit and search on the high seas. In order to justify this operation, the myriad possible justi

fications,

including the right of self-defence under Article 51 of the UN

Charter, were submitted. Nonetheless, it appears debatable whether the US operation could be fully justi

fied on the basis of self-defence.

122

The ILC was cautious about including a rule governing self-defence in the Geneva Convention on the High Seas ‘mainly because of the vagueness of terms like “imminent danger” and “hostile acts” , which leaves them open to abuse’.

123

One can say that the

validity of the exercise of the right of self-defence on the high seas is to be judged on a case-by-case basis in accordance with the international law of self-defence, in particular Article 51 of the UN Charter.

2.9 Regulation of Migrant Smuggling by Sea

(a) The 2000 Migrant Smuggling Protocol The phenomenon of maritime migration goes back to the mass exodus from Vietnam throughout the 1980s, which was followed in the 1990s by large-scale departures from Albania, Cuba and Haiti.

124

Recently the regulation of maritime migration has been a

matter of special concern, particularly in the Mediterranean Sea and the Bay of Bengal.

125

A particular issue that arises in this context concerns the interception of vessels on the high seas for the regulation of migration. In practice, the counter-migration measures at sea are taken on the basis of either bilateral or multilateral treaties. The majority of bilateral treaties on this subject have been concluded by the United States to regulate migrants in the Caribbean Sea.

126

As regards multilateral treaties, the 2000 Protocol against the Smuggling

of Migrants by Land, Air and Sea (Migrant Smuggling Protocol), 128

UN Convention against Transnational Organised Crime,

127

which supplements the

is the principal treaty regulating

the smuggling of migrants. The Migrant Smuggling Protocol aims to prevent and combat the smuggling of migrants as well as to promote cooperation among States to that end, while protecting the rights of

122 123 124

The International Law of the Sea YILC

O ’Connell, (1956)

, p. 808; Churchill and Lowe,

Law of the Sea

, p. 426.

, vol. 2, p. 284.

UNHCR, ‘Refugees and Asylum-Seekers in Distress at Sea: How Best to Respond? ’ Background Paper for the Expert meeting in Djibouti 8– 10 November 2011, para. 1, available at: www.unhcr.org/4ec1436c9.pdf.

125

Generally on this issue, see UNHCR, Global Initiative on Protection at Sea, 1 May 2014, available at: www.unhcr.org/5375db0d9.html.

126

Papastavridis,

The Interception of Vessels on the High Seas

Particular Problems (eds.), 127

, pp. 281

of

et seq

Towards a Refugee Oriented Right of Asylum

(Farnham, Ashgate, 2015), pp. 185–190.

Article 2. Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention Against Transnational Organised Crime. Text in: 2241 28 January 2004.

128

. See also T. Scovazzi, ‘The

Migrants and Asylum Seekers Arriving by Sea’, in L. Westra, S. Juss and T. Scovazzi

Article 1 of the Migrant Smuggling Protocol.

UNTS

, p. 507. Entered into force

211 Marine Spaces Beyond National Jurisdiction smuggled migrants. people.

130

129

Put simply, smuggling refers to the facilitation of illegal migrant of

Article 3(a) of the Protocol de

fines migrant smuggling:

‘Smuggling of migrants’ shall mean the procurement, in order to obtain, directly or indirectly, a

fi

fi

nancial or other material bene

t, of the illegal entry of a person into a State Party of which

the person is not a national or a permanent resident.

In broad terms, the Migrant Smuggling Protocol provides three categories of obligations: the 131

obligation to criminalise the facilitation of smuggling and related activities, of the rights of migrants

132

the protection 133

and the obligation to prevent the smuggling of migrants.

To prevent migrant smuggling by sea, the Protocol articulates, inter alia, the rules

flag State encounters a vessel

applicable to situations where a State Party other than the suspected of being engaged in migrant smuggling.

134

In this regard, Article 7 of the

Protocol places a clear obligation upon States Parties to cooperate to the fullest extent possible, to prevent and suppress the smuggling of migrants by sea in accordance with the international law of the sea. Article 8 provides measures against the smuggling of migrants by sea. In this regard, measures taken by non-

flag States merit particular mention. These

measures can be divided into two categories: (i) measures concerning vessels with the nationality of a State Party, and (ii) measures for vessels without nationality. Under Article 8(2) of the Protocol, a State Party that has reasonable grounds to suspect that a vessel exercising freedom of navigation

flying the flag or displaying the marks of

registry of another State Party is engaged in the smuggling of migrants by sea may so notify

flag State, request confirmation of registry and, if confirmed, request authorisation from flag State to take appropriate measures with regard to that vessel. As suggested by the term may , the power of non-flag States under this provision is permissive. The flag the

135

the

‘

’

State may authorise the requesting State, inter alia, to: (a) board the vessel; (b) search the vessel; and (c) if evidence is found that the vessel is engaged in the smuggling of migrants by sea, take appropriate measures with respect to the vessel and persons and cargo on

flag State. The contents of appropriate measures remain fied in the Protocol. Accordingly, such measures are to be determined by agreement between the requested and requesting State in practice. Related to this, a flag State may board, as authorised by the

‘

’

unspeci

136

subject its authorisation to conditions to be agreed by it and the requesting State, including

129 130

Article 2. T. Obokata, ‘The Legal Framework Concerning the Smuggling of Migrants at Sea under the UN Protocol on the Smuggling of Migrants by Land, Sea and Air ’, in B. Ryan and V. Mitsilegas (eds.), Extraterritorial

Immigration Control: Legal Challenges (Leiden, Nijhoff, 2010), p. 153. 131

Article 6. Related to this, Article 5 stipulates: ‘Migrants shall not become liable to criminal prosecution under this Protocol for the fact of having been the object of conduct set forth in article 6 of this Protocol.’

132 134

Article 16.

133

For instance, Articles 7, 10, 11, 14 and 15.

Further, A. T. Gallagher and F. David, The International Law of Migrant Smuggling (Cambridge University Press, 2014), pp. 44 –66 and pp. 434–438.

135 136

The criterion for establishing ‘reasonable grounds’ remains less clear. Ibid., p. 436.

Ibid., pp. 436– 437.

212 International Law Governing Jurisdictional Zones conditions relating to responsibility and the extent of effective measures to be taken by virtue of Article 8(5). Under Article 8(5), with exceptions, the requesting State cannot take additional measures without the express authorisation of the

fl ag State.

As for vessels without nationality, Article 8(7) stipulates:

A State Party that has reasonable grounds to suspect that a vessel is engaged in the smuggling of migrants by sea and is without nationality or may be assimilated to a vessel without nationality may board and search the vessel.

Under the same provision, that State Party may take appropriate measures in accordance with relevant domestic and international law, if evidence con

firming the suspicion is found.

Where a State Party takes measures against a vessel pursuant to Article 8, it is obliged to ensure the safety and humane treatment of the persons on board.

137

have any obligation to accept smuggled migrants into its territory.

Yet that State does not

138

It can be reasonably

presumed that the boarding of a ship will normally be done in urgent circumstances. Accordingly, the communication with the

flag

Article 8(4) obliges a State Party to ‘respond

States is of critical importance.

expeditiously

139

Thus

to a request from another State

Party to determine whether a vessel that is claiming its registry or

flying its flag is entitled

to do so and to a request for authorization made in accordance with paragraph 2 of this 140

article’ .

fied by Article 8(6):

This obligation is further ampli

Each State Party shall designate an authority or, where necessary, authorities to receive and

fi fly flag and for authorization to take appropriate measures. Such designation shall be notified

respond to requests for assistance, for con rmation of registry or of the right of a vessel to its

through the Secretary-General to all other States Parties within one month of the designation.

Overall, the interception of vessels on the high seas for combating the smuggling of migrants under the Migrant Smuggling Protocol relies on the consent of the

flag

State.

The Protocol cannot therefore be considered as an exception to the principle of the exclusive jurisdiction of the

flag State.

(b) Lawfulness of Push-back Operations Against Migrants Less infrequently the persons on board the intercepted vessels are intercepted in the high seas and forced to return to their countries of origin or third States.

137 138

141

Tampa

incident in

Obokata, ‘The Legal Framework ’, p. 161. As will be discussed, however, States are under obligation to

non-refoulement .

T. Scovazzi, ‘Human Rights and Immigration at Sea’, in R. Rubio-Marín (ed.),

Immigration 140

The

Article 9(1)(a) of the Migrant Smuggling Protocol.

comply with the principle of 139

141

Human Rights and

(Oxford University Press, 2014), p. 218.

Emphasis added. In particular, this issue arises in relation to the practice of the European Agency for the Management of Operational Cooperation at the External Borders (FRONTEX) and Australia’s ‘pushing back the boats’ policy.

213 Marine Spaces Beyond National Jurisdiction 2001 vividly raised questions associated with push-back operations against migrants.

142

The

lawfulness of push-back operations in the high seas must be examined from the viewpoints of the law of the sea, international refugee law and international human rights law. As explained earlier, vessels on the high seas are under the exclusive jurisdiction of the State. Accordingly, interception of vessels on the high seas without the consent of the

flag flag

State is contrary to international law. If vessels carrying irregular migrants are stateless, it is open to debate whether warships and other government vessels may exercise enforcement jurisdiction over stateless vessels. Furthermore, the rights of States to regulate migrants at sea do not displace the duty to render assistance to persons in distress at sea. (1) of the LOSC, every State shall require the master of a ship

143

flying

Under Article 98

its

flag

to render

assistance to any person found at sea in danger of being lost, and to proceed with all possible speed to the rescue of persons in distress. The term ‘ any person’ means that no discrimination can be applied according to the status of those to be rescued.

144

Furthermore, Article 98(2)

places a general obligation upon coastal States to promote search and rescue services. The duty to render assistance is further ampli

fied in the SOLAS Convention

145

and the

1979 International Convention on Maritime Search and Rescue (the SAR Convention).

146

In

this regard, Regulation V/33.1 of the SOLAS Convention clearly requires that:

[the] master of a ship at sea which is in a position to be able to provide assistance, on receiving information from any source that persons are in distress at sea, is bound to proceed with all speed to their assistance, if possible informing them or the search and rescue service that the 147

ship is doing so.

On this issue, see E. Papastavridis, ‘“Fortress Europe” and FRONTEX: Within or Without International Law?’ (2010) 79 NJIL, pp. 75– 111 (in particular, pp. 102–107); N. Klein, ‘Assessing Australia’s Push Back the Boats Policy under International Law: Legality and Accountability for Maritime Interceptions of Irregular Migrants’, (2014) 15 Melbourne Journal of International Law, pp. 414–443; A. Scholenhardt and C. Craig, ‘“Turning Back the Boats”: Australia ’s Interdiction of Irregular Migrants at Sea’ (2015) 27 International

Journal of Refugee Law, pp. 536– 572. 142

The Norwegian vessel, Tampa, rescued 433 irregular migrants at 87 miles north of Christmas Island on 26 August 2001. Whereas the Tampa sought to enter port in distress within Australian territory, permission to enter Australia ’s territorial sea was refused. On 1 September 2001, agreements had been reached with governments of Nauru and New Zealand that rescued persons should be conveyed to Nauru and New Zealand for processing. Further, see for instance, E. Willheim, ‘MV Tampa: The Australian Response’ (2003) 15 International Journal of Refugee Law, pp. 159 –191; C. Baillet, ‘The Tampa Case and Its Impact on Burden Sharing at Sea ’ (2003) 25 Human Rights Quarterly, pp. 741–774; M. White, ‘M/V Tampa Incident and Australia ’s Obligations: August 2001’ (January –February 2002) Maritime Studies, pp. 7 –17.

143

R. Barnes, ‘The International Law of the Sea and Migration Control’, in Ryan and Mitsilegas, Extraterritorial Immigration Control, p. 134.

144

I. Caracciolo, ‘Migration and the Law of the Sea: Solutions and Limitations of a Fragmentary Regime’, in J. Crawford et al. (eds.), The International Legal Order: Current Needs and Possible Responses, Essays in Honour of Djamchid Momtaz (Leiden, Brill/Nijhoff, 2017), p. 276.

145 146

Chapter V, Regulation 33(1). Text in: 1405 UNTS, p. 119. Entered into force 22 June 1985. The Convention was amended in 2004. The amendments entered into force 1 July 2006.

147

See also IMO Guidelines on the Treatment of Persons Rescued at Sea in 2004. Resolution MSC.167(78) adopted on 20 May 2004, available at: www.imo.org/en/OurWork/Facilitation/personsrescued/Documents/ MSC.167(78).pdf.

214 International Law Governing Jurisdictional Zones The SAR Convention also requires the Parties to ensure that assistance is provided to any person in distress at sea.

148

Under the Convention, the Party responsible for the search and

rescue region in which such assistance is rendered is obliged to exercise primary responsibility

for

ensuring

that

such

coordination

and

cooperation

occurs,

so

that

survivors

assisted are disembarked from the assisting ship and delivered to a place of safety.

ficult issue arises of how to determine the place of safety.

this connection, a dif the SAR matter,

Convention,

151

as amended

in

2004, does

not provide

a clear

150

149

In

While

answer to

this

a predominant view seems to be that the Party responsible for the search and

rescue region is neither bound to disembark the persons in its own territory,

152

nor is there

a clear duty for coastal States to allow disembarkation, even though disembarking rescued persons at the next port of call remains a practice. Thus a crucial gap exists between rescue

and

disembarkation.

153

In

any

case,

according

to

the

IMO

Guidelines

on the

Treatment of Persons Rescued at Sea, ‘[a]n assisting ship should not be considered a place of safety based solely on the fact that the survivors are no longer in immediate danger once aboard the ship ’.

154

The legality of push-back operations in the high seas is also at issue in international refugee

law.

In

non-refoulement .

this

regard,

what

is

of

particular

importance

is

the

principle

of

Under this principle, no refugee shall be expelled or returned to any

country where his or her life or freedom would be threatened. breaches the principle of

non-refoulement

155

The transferring State

when it transfers a person despite knowledge that

there is a risk of likely harm or when it transfers a person without conducting an adequate assessment of risk.

148 150

156

According to the prevailing view, this principle also applies on the

Chapter 2.1.10 of Annex to the SAR Convention.

149

Ibid.,

Chapter 3.1.9.

The IMO Guidelines on the Treatment of Persons Rescued at Sea states: ‘A place of safety. . . is a location where rescue operations are considered to terminate. It is also a place where the survivors’ safety of life is no longer threatened and where their basic human needs . . . can be met ’ (para. 6.12).

151

The SAR Convention merely requires each Party to authorise its rescue coordination centres ‘to make the necessary arrangements in co-operation with other RCCs [rescue coordination centres] to identify the most appropriate place(s) for disembarking persons found in distress at sea ’ (Chapter 3.1.6.4 of Annex to the SAR Convention).

152

Scovazzi, ‘Human Rights and Immigration at Sea’, p.230; Klein, ‘Assessing Australia’s Push Back the Boats Policy’, p. 427; Gallagher and David,

153 155

The International Law of Migrant Smuggling,

Barnes, ‘The International Law of the Sea and Migration Control’, p. 144.

154

p. 460.

Para. 6.13.

See Article 33(1) of the 1951 Convention relating to the Status of Refugees. Text in: 189 Entered into force 22 April 1954. The principle of

non-refoulement is

UNTS,

p. 137.

also provided in Article 7 of the

1966 International Covenant on Civil and Political Rights and Article 3(1) of the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. For the text of the 1966 International Covenant, see 999

UNTS ,

p. 171. Entered into force 23 March 1976. For the

interpretation of Article 7 of the Convention, see Human Rights Committee, General Comment No. 31, 2004, para. 12; G. S. Goodwin-Gil and J. McAdam,

The Refugee in International Law,

3rd edn (Oxford University

Press, 2007), pp. 208 –209. For the text of the 1984 Convention against Torture, see 1465

UNTS ,

p. 85.

Entered into force 26 June 1987. 156

N. Frenzen, ‘Extraterritorial Refugee Protection’, in A. Nollkaemper and I. Plakokefalos (eds.),

of Shared Responsibility in International Law

(Cambridge University Press, 2017), p. 512.

The Practice

215 Marine Spaces Beyond National Jurisdiction high seas. In fact, the UN High Commissioner for Refugees (UNHCR) clearly stated: ‘ The principle of

non-refoulement

does not imply any geographical limitation. ’

supported by the Inter-American Commission on Human Rights in

Human Rights et al

v

United States.

158

157

This view was

The Haitian Centre for

It can be argued, therefore, that intercepting States

are obliged to conform to the principle of

non-refoulement

carrying asylum seekers or refugees on the high seas.

when intercepting vessels

159

Furthermore, the application at sea of international human rights law must be considered. The principle of

non-refoulement

is a fundamental component of the customary

international law concerning the prohibition of torture or cruel, inhuman or degrading treatment or punishment.

160

In contrast to the principle in refugee law,

non-refoulement

the human rights context is not predicated on any given status of the individual at risk.

in

161

An issue at point concerns the applicability of international human rights law to operations in the high seas. In this regard, the Human Rights Committee in General Comment No. 31 on the nature of the general legal obligation on States Parties to the International Covenant on Civil and Political Rights explicitly stated:

[A] State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the 162

State Party.

Furthermore, the jurisprudence of the European Court of Human Rights supports the application of the European Convention on Human Rights (ECHR) on the high seas. A leading case in this matter is arrest by a French frigate of the

Medvedyev Winner,

v

France

(2010). This case related to the

fi ck-

a Cambodian ship suspected of drugs traf

ing on the high seas off Cape Verde. In this case, the Grand Chamber of the Court considered:

157

UNHCR,

Interception of Asylum-Seekers and Refugees: The International Framework and Recommendations

for a Comprehensive Approach, UN Doc EC/50/SC/CPR. 17, 9 June 2000, para. 23. This view was confirmed in UNHCR, Advisory Opinion of the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, available at: www.refworld.org/pd 158

fid/45f17a1a4.pdf.

Inter-American Commission of Human Rights,

26 January 2007, p. 13, para. 28,

The Haitian Centre for Human Rights et al. v. United States,

Case 10.675, Report No. 51/96, 13 March 1997, para. 157. 159 160

Papastavridis, ‘“Fortress Europe” and FRONTEX’, pp. 103–104. Sir E. Lauterpacht and D. Bethlehem, ‘The Scope and Content of the Principle of Non-Refoulement: Opinion’, in E. Feller et al. (eds.),

Refugee Protection in International Law

(Cambridge University Press,

2001), p. 162. 161

Ibid.,

p. 159; E. Papastavridis, ‘European Convention on Human Rights and the Law of the Sea: The

The Interpretation and Application of the European Convention of Human Rights: Legal and Practical Implication (Leiden, Brill/ Strasbourg Court in Unchartered Water? ’, in M. Fitzmaurice and P. Merkouris (eds.),

Nijhoff, 2012), p. 131. 162

Human Rights Committee, General Comment No. 31 [80], The Nature of the General Legal Obligation Imposed on States Parties to the Covenant. Adopted on 29 March 2004, CCPR/C/21/Rev.1/Add. 13, para. 10.

216

International Law Governing Jurisdictional Zones [A]s this was a case of France having exercised full and exclusive control over the crew, at least

de facto

Winner

and its

, from the time of its interception, in a continuous and uninterrupted

manner until they were tried in France, the applicants were effectively within France ’s jurisdiction 163

for the purposes of Article 1 of the Convention [i.e. European Convention on Human Rights].

Related to this, the Court ruled:

[T]he special nature of the maritime environment relied upon by the Government in the instant case cannot justify an area outside the law where ships’ crews are covered by no legal system capable of affording them enjoyment of the rights and guarantees protected by the Convention 164

which the States have undertaken to secure to everyone within their jurisdiction.

The dictum was echoed by the same Court in the 2012

Hirsi case.

165

This case concerned the

high seas interception and push-back to Libya of smuggled Somali and Eritrean nationals by the Italian coastguard.

166

In this case, the Grand Chamber of the European Court of Human

Rights considered that since ‘ the applicants [Somali and Eritrean nationals] were under the continuous and exclusive

de jure and de facto control of the Italian authorities ’,

167

‘ the events

giving rise to the alleged violations fall within Italy ’s “jurisdiction” within the meaning of 168

Article 1 of the Convention [i.e. European Convention on Human Rights] ’ .

fically, the

Speci

Grand Chamber found that the transfer of the applicants to Libya by the Italian authorities violated Article 3 of the ECHR because it exposed the applicants to the risk of arbitrary repatriation.

169

It also held that the obligations arising from Article 4 of Protocol No. 4 of the

Convention, which prohibits the collective expulsion of aliens, apply to interception on the high seas by the authorities of a State.

170

All in all, States intercepting on the high seas for

counter-migration purposes must comply with relevant rules of the law of the sea, international refugee law and international human rights law.

3 THE AREA

3.1 General Considerations

The exploration and exploitation of natural resources in the deep seabed is a new subject in the law of the sea. At the end of the nineteenth century, polymetallic nodules were

163

Case of Medvedyev and others

v

France, Application No. 3394/03, Grand Chamber, Judgment, 29 March

2010, para. 67. 164 165

166 167 170

Ibid., para. 81. Case of Hirsi Jamaa and Others v Italy , Grand Chamber, European Court of Human Rights, Judgment, 23 February 2012, para. 178 (hereinafter the Hirsi case). Gallagher and David, The International Law of Migrant Smuggling, pp. 7 –8 and 476. The Hirsi case, para. 81. Ibid., para. 82. Ibid., para. 158. Ibid., para. 177–180. See also V. P. Tzevelekos and E. K. Proukaki, ‘Migrants at Sea: A Duty of Plural States to Protect (Extraterritorially)? ’ (2017) 86 NJIL, p. 452. 168

169

217

Marine Spaces Beyond National Jurisdiction discovered in the Arctic Ocean off Siberia. During the 1872 –1877 scienti HMS

Challenger

fic expedition of

, they were found to occur in most oceans of the world.

171

Polymetallic

nodules, which were also called manganese nodules, are small brown-black balls, usually between 1 and 20 centimetres in diameter. In the 1950s, attention was drawn to the economic

signi

ficance

of

the

nodules.

During

the

International

Geophysical

Year

of

1957 –1958, polymetallic nodules were collected on the Tuamotu plateau approximately 370 kilometres east of Tahiti at a depth of some 900 metres. These nodules proved to contain commercially valuable minerals, such as nickel, copper and cobalt.

172

Thus the

exploration and exploitation of polymetallic nodules have attracted growing attention. As noted, the management of the deep seabed resources gave an impetus to convene UNCLOS III.

173

The LOSC devotes Part XI to the regime governing the Area.

3.2 Spatial Scope of the Area

The limits of the Area are the seaward limits of the continental shelf in the legal sense. It follows that the limits of the Area are 200 nautical miles from the baseline or the limit of the continental margin where it extends beyond 200 nautical miles. As noted earlier,

174

rocks

‘ which cannot sustain human habitation or economic life of their own ’ have no EEZ nor

continental shelf. Hence, in the case of a rock, the limit of the Area exceptionally is the seaward limit of the territorial sea around the rock. The limits of the Area are determined by each State in conformity with international law. Under Article 134(4) of the LOSC, the International Seabed Authority (hereinafter the Authority) is not entitled to affect the establishment of the outer limits of the continental shelf under Part VI or the validity of agreements relating to delimitation between States with opposite or adjacent coasts. The Authority only receives such charts or lists showing the outer limit lines of the continental shelf by virtue of Article 84(2) of the LOSC.

3.3 Raison d’e ˆ tre of the Principle of the Common Heritage of Mankind

The Area is governed by the principle of the common heritage of mankind. While this principle had been already introduced into space law,

175

the LOSC established a more

advanced mechanism. Before UNCLOS III, there were three different views relating to the legal status of natural resources in the deep seabed beyond the limits of national jurisdiction.

171 172

International Seabed Authority,

Polymetallic Nodules

176

According to the

, available at: www.isa.org.jm/mineral-resources/55.

A Handbook on the New Law of the Deepsea Mining and the Law of the Sea

P. Lévy, ‘The International Sea-Bed Area ’, in R.-J. Dupuy and D. Vignes,

Sea

(Dordrecht, Nijhoff, 1991), vol. 1, pp. 595–602; A. M. Post,

(The

Hague, Nijhoff, 1983), pp. 11 –17. 173

In addition to polymetallic nodules, presently polymetallic sulphides, cobalt-rich crusts and rare earth elements in the deep seabed attract growing attention.

174 175

See Chapter 2, section 3.3 of this book. Article 11 of the 1979 Agreement Governing the Activities of States on the Moon and the Other Celestial Bodies (1979) 18

176

ILM Law of the Sea

Churchill and Lowe,

, p. 1434. Entered into force 11 July 1984. , pp. 224– 225.

218 International Law Governing Jurisdictional Zones

first

interpretation, the seaward limit of coastal States’ continental shelves moved into

deeper waters under the ‘ exploitability’ criterion enshrined in Article 1 of the 1958 Geneva Convention on the Continental Shelf. According to this view, ultimately the whole ocean

floor would be divided among coastal States. It follows that natural resources in the deep seabed would be subject to the sovereign rights of coastal States. By contrast, in the second view the deep seabed is res communis and, thus, the ocean beds as well as their natural resources would be subject to the freedom of the high seas. Consequently, whereas no State can appropriate the ocean

floor,

the area and its resources could be used by any State

according to the freedom of the high seas. On the other hand, according to the third interpretation, the deep seabed as well as its natural resources should be treated as res nullius. In this view, mining States would be able to appropriate the ocean

floor as well as

its natural resources through occupation. In spite of differences in opinion, arguably the practical result of those interpretations would be almost the same: only technologically developed States would be best placed to explore and exploit natural resources in the deep ocean

floor. Further, unrestricted seabed

mining would have negative impacts upon land-based exporters of the minerals concerned, in particular those which are developing States; such a situation would exacerbate uneven development between developed and developing countries. The consequence would not be acceptable to developing States, which called for the establishment of a New International Economic Order (NIEO). Hence it has been considered that neither the principle of sovereignty nor the principle of freedom could provide a legal framework ensuring the fair and equitable sharing of natural resources of the Area. It is in this context that in 1967, Maltese Ambassador Dr Arvid Pardo made a historic proposal that the seabed and its natural resources beyond the limits of national jurisdiction should be the common heritage of mankind. This new proposal was to be discussed in a thirty-

five State ad hoc committee, which was replaced in 1968 by the permanent Commit-

tee on the Peaceful Uses of the Sea-Bed and Ocean Floor beyond the Limits of National Jurisdiction. This Committee submitted reports to the 24th and 25th sessions of the UN General Assembly. In 1969, General Assembly Resolution 2574 D (XXIV), known as the Moratorium Resolution, declared that pending the establishment of an international regime, ‘ States and persons, physical or juridical, are bound to refrain from all activities of exploit-

ation of the resources of the area of the sea-bed and ocean

floor, and the subsoil thereof,

beyond the limits of national jurisdiction’ . In 1970, the Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, Beyond the Limits of National Jurisdiction was adopted (hereinafter the 1970 Declaration).

177

Principle 2 of the 1970 Declaration pronounced: ‘The area shall not be

subject to appropriation by any means by States or persons, natural or judicial, and no State shall claim or exercise sovereignty or sovereign rights over any part thereof. ’ At the same time, the 1970 Declaration explicitly recognised that the existing legal regime of the high

177

UN Resolution 2749 (XXV). This resolution was adopted 108 in favour, none against, with 14 abstentions.

219

Marine Spaces Beyond National Jurisdiction seas did not provide substantive rules for regulating the exploration of the seabed area beyond the limits of national jurisdiction and the exploitation of its resources. Thus, the 1970 Declaration solemnly declared:

The sea-bed and ocean

floor, and the subsoil thereof, beyond the limits of national jurisdiction

(hereafter referred to as the area), as well as the resources of the area, are the common heritage of mankind.

It is important to note that the principle of the common heritage of mankind came into existence in a situation where neither the principle of sovereignty nor that of freedom could provide a legal framework ensuring the equitable share of the bene

fit derived from natural

resources of the Area. In fact, the application of the two traditional principles to the deep seabed was clearly negated in the 1970 Declaration.

3.4 Elements of the Principle of the Common Heritage of Mankind

Article 136 pronounces:

The Area and its resources are the common heritage of mankind.

All rights in the resources of the Area are vested in mankind as a whole, on whose behalf the Authority shall act by virtue of Article 137(2). Under Article 133(a), ‘ resources’ mean ‘ all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the sea-bed, including polymetallic nodules ’. The principle of the common heritage of mankind in the LOSC is composed of three legal elements. The

first element is the non-appropriation of the Area as well as its natural resources. In

this regard, Article 137(1) stipulates:

No State shall claim or exercise sovereignty or sovereign rights over any part of the Area or its resources, nor shall any State or natural or juridical person appropriate any part thereof. No such claim or exercise of sovereignty or sovereign rights nor such appropriation shall be recognized.

Here the appropriation of the Area on the basis of the principle of sovereignty is clearly negated. At the same time, it should be noted that the appropriation of ‘ its resources’ is also prohibited. It follows that there is no freedom to explore and exploit natural resources in the Area. On this point, the Area must be distinguished from res communis. Consequently, the two traditional principles in the law of the sea are excluded in the legal framework governing the Area.

fit of mankind as a whole. Article 140(1) explicitly shall be carried out for the benefit of mankind as a

The second element concerns the bene provides that activities in the Area

220

International Law Governing Jurisdictional Zones whole. Article 140(2) calls for the Authority to provide for the equitable sharing of and other economic bene

fits derived from activities

financial

in the Area through any appropriate

mechanism, on a non-discriminatory basis, in accordance with Article 160(2)(f )(i). Thus the concept of the bene

fit

fits are fit of mankind as a whole is at the heart

of mankind as a whole and the equitable sharing of bene

intimately intertwined. It can be said that the bene

178

of the principle of the common heritage of mankind.

The third element pertains to the peaceful use of the Area. In this regard, Article 141 makes it explicit that the Area shall be open to use exclusively for peaceful purposes by all States.

3.5 International Seabed Authority

(a) Scope of ‘Activities in the Area’ The next issue to be examined involves a speci

fic mechanism for promoting the benefit of

mankind as a whole. In this regard, Article 153(1) provides that activities in the Area shall be organised, carried out and controlled by the Authority on behalf of mankind as a whole. ‘ Activities

in the Area ’ means all activities of exploration for and exploitation of the

resources of the Area.

179

According to the Seabed Disputes Chamber of ITLOS, the expres-

sion ‘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. More specifically, the Seabed Disputes Chamber made clear that activities in the Area ‘

’

include: drilling, dredging, coring and excavation; disposal, dumping and discharge into the marine environment of sediment, wastes or other ef

fluents;

and construction and

operation or maintenance of installations, pipelines and other devices related to such activities. The evacuation of water from the minerals and the preliminary separation of materials of no commercial interest, including their disposal at sea, are deemed to be covered by the expression ‘ activities in the Area’ . However, processing, namely the process through which metals are extracted from the minerals and transportation, and transportation to points on land from the part of the high seas superjacent to the part of the Area in 180

which the contractor operates are excluded from ‘activities in the Area’ .

(b) Structure of the International Seabed Authority The International Seabed Authority is an international organisation governing the Area and activities there.

178 179 180

181

All States Parties to the LOSC are

ipso facto

members of the Authority.

A. C. Kiss, ‘La notion de patrimoine commun de l’humanité ’ (1982) 175

182

RCADI

, pp. 229 and 231.

LOSC, Article 1(1).

Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area , Advisory Opinion, ITLOS Reports 2011, pp. 35–37, paras. 87 –96 (hereinafter 2011 ITLOS Advisory

Opinion). 181

For an overview of the International Seabed Authority, see G. Le Gurun, ‘Le rôle des entités établies par la Convention de Montego Bay ’, in M. Forteau and J.-M. Thouvenin (eds.),

182

mer

(Paris, Pedone, 2017), pp. 141–153.

LOSC, Article 156(2).

Traité de droit international de la

221 Marine Spaces Beyond National Jurisdiction The Authority sits in Jamaica

183

and comprises three principal organs, that is to say, an

Assembly, a Council and a Secretariat. Enterprise.

184

In addition, it has its operational organ, i.e. the

185

The Assembly, which consists of all the members of the Authority, is the supreme organ of the Authority to which the other principal organs shall be accountable as speci 186

provided for in the LOSC.

fically

The Assembly is entitled to establish general policies on any 187

question or matter within the competence of the Authority.

The Council, which consists of thirty-six members of the Authority, is the executive organ of the Authority.

188

Each member of the Council shall be elected for four years.

The Council is empowered to establish the speci

189

fic policies to be pursued by the Authority

on any question or matter within the competence of the Authority.

190

The Secretariat of the Authority comprises a Secretary-General and such staff as the Authority may require.

191

In the performance of their duties, the Secretary-General and the

staff shall not seek or receive instructions from any government or from any other source external to the Authority. They shall refrain from any action which might re position

as international

ficials

of

responsible

Secretary-General and the staff shall have no exploration and exploitation in the Area.

192

only

to

the Authority.

flect on their

In addition,

the

financial interest in any activity relating to fications will contribute to secure

Those quali

the independence and neutrality of the Secretariat.

(c) Jurisdiction of the International Seabed Authority The LOSC contains detailed provisions with regard to the jurisdiction of the Authority.

five points.

Principal features of its jurisdiction can be summarised in

First, the Authority’ s jurisdiction is limited to the Area (limitation Area comprises the seabed and ocean

ratione loci

193

).

The

floor and subsoil thereof beyond the limits of national

jurisdiction. Under Article 135, the Authority ’s jurisdiction shall not affect the legal status of the waters superjacent to the Area or that of the airspace above the waters. Accordingly, the jurisdiction is spatially limited to the seabed and its subsoil beyond the limits of national jurisdiction. Second, the jurisdiction of the Authority is limited to matters provided by the LOSC and 1994 Implementation Agreement (limitation

ratione materiae

).

194

In this respect, Article 157(2)

makes clear that the powers and functions of the Authority shall be those expressly conferred upon it by the LOSC. It is true that the Authority has such incidental powers as are implicit in and necessary for the exercise of those powers and functions with respect to activities in the Area by virtue of Article 157(2). However, this does not mean that the Authority ’ s jurisdiction is

183 185

LOSC, Article 156(4).

184

LOSC, Article 158(1).

For an outline of each organ of the Authority, see M. W. Lodge, ‘The Deep Seabed’, in

Oxford Handbook

,

pp. 231 –239. 186 189 192 193

LOSC, Articles 159(1) and 160(1). LOSC, Article 161(3).

190

187

LOSC, Article 160(1).

LOSC, Article 162(1).

191

188

LOSC, Articles 161(1) and 162(1).

LOSC, Article 166(1).

LOSC, Article 168(1) and (2). F. H. Paolillo, ‘Institutional Arrangements’, in Dupuy and Vignes,

A Handbook

, p. 720.

194

Ibid

., p. 718.

222 International Law Governing Jurisdictional Zones of a general nature in its material scope. The task of the Authority is limited in essence to organise, carry out and control activities in the Area.

195

Thus States may carry out other

activities unconnected with the exploration and exploitation of the Area’ s mineral resources, such as laying pipelines and cables, without the permission of the Authority. Third, the Authority has legislative and enforcement jurisdiction with respect to activities in the Area. Concerning the legislative jurisdiction, Article 17(1) of Annex III provides:

The Authority shall adopt and uniformly apply rules, regulations and procedures in accordance with article 160, paragraph 2(f )(ii), and article 162, paragraph 2(o)(ii), for the exercise of its functions as set forth in Part XI on,

inter alia,

the following matters.

Such matters include: (a) administrative procedures relating to prospecting, exploration and exploitation in the Area; (b) operations; (c)

financial

matters; and (d) implementation of

decisions taken pursuant to Article 151(10) and Article 164(2)(d). The Authority is also empowered to adopt appropriate rules concerning protection of human life, of the marine environment, equitable sharing of

197

196

protection

installations used for carrying out activities in the Area,

198

the

financial and other economic benefits derived from activities in the Area

and the payments and contributions made pursuant to Article 82.

199

Furthermore, it has the

power to adopt rules and regulations, including regulations relating to prospecting, exploration and exploitation in the Area.

200

To date, the Authority has issued three regulations:

• Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area 201

(Polymetallic Nodules Regulations),

• Regulations on Prospecting and Exploration for Polymetallic Sulphides in the Area (the

Sulphides Regulations),

202

and

• Regulations on Prospecting and Exploration for Cobalt-Rich Ferromanganese Crusts in

the Area (Cobalt-Rich Crusts Regulations).

203

These regulations form what is informally called the Deep Seabed Mining Code. tions are binding on all members of the Authority.

205

204

Regula-

The legislative jurisdiction of the

Authority can be regarded as a key element of the evolving deep seabed regime. Concerning enforcement jurisdiction, Article 153(5) confers on the Authority the right to take at any time any measures provided for under Part XI with a view to ensuring compliance

195 198 200 201

LOSC, Articles 153(1) and 157(1). LOSC, Article 147(2)(a).

199

196

LOSC, Article 146.

197

LOSC, Article 145.

LOSC, Article 160(2)(f ) –(i).

LOSC, Articles 160(2)(f ) –(ii) and 162(2)(o)– (ii). ISBA/6/A/18. Adopted on 13 July 2000. Amended in 2013. ISBA/19/C/17. The electronic text is available at: www.isa.org.jm/mining-code/Regulations. The Regulations were revised and updated in 2013. ISA Doc. No ISBA/19/C/17 (2013).

202

ISBA/16/A/12/Rev.1. Adopted on 7 May 2010. The electronic text is available at: www.isa.org.jm/miningcode/Regulations.

203

ISBA/18/A/11. Adopted on 27 July 2012. The electronic text is available at: www.isa.org.jm/mining-code/Regulations.

204 205

See www.isa.org.jm/mining-code. J. Harrison, ‘Resources of the International Seabed Area’, in E. Morgera and K. Kulovesi (eds.),

Handbook on International Law and Natural Resources

Research

(Cheltenham, Edward Elgar, 2016), p. 397.

223 Marine Spaces Beyond National Jurisdiction with its provisions and the exercise of the functions of control and regulation assigned to it thereunder or under any contract. At the same time, the Authority possesses the right to inspect all installations in the Area used in connection with activities in the Area. The Council of the Authority is empowered to supervise and coordinate the implementation of the provisions of Part XI on all questions and matters within the competence of the Authority and invite the attention of the Assembly to cases of non-compliance under Article 162(2)(a). Further, the Authority has the power to sanction non-compliance. Article 18(1) of Annex III provides that a contractor ’s rights under the contract may be suspended or terminated in the cases where the contractor has conducted their activities in such a way as to result in serious, persistent and wilful violations of the fundamental terms of the contract, Part XI and the rules and regulations of the Authority; or where the contractor has failed to comply with a

final binding decision of a dispute settlement body applicable to

him. The Authority may also impose upon the contractor monetary penalties proportionate to the seriousness of the violation in conformity with Article 18(2) of Annex III. In addition to this, a State Party which has grossly and persistently violated the provisions of Part XI may be suspended from the exercise of the rights and privileges of membership by the Assembly upon the recommendation of the Council pursuant to Article 185. The Council may issue emergency orders, which may include orders for the suspension or adjustment of operations, to prevent serious harm to the marine environment arising out of activities in the Area under Article 162(2)(w). Fourth, the jurisdiction of the Authority is exercised over all natural and juridical persons engaging in activities in the Area, regardless of their nationalities. In this sense, the Authority ’s jurisdiction is of a general nature in its personal scope. As we shall discuss later, activities in the Area are to be carried out by the Enterprise, an operational organ of the Authority, and in association with the Authority by other commercial entities in accordance with Article 153(2). In this regard, Article 4(6) of Annex III requires that every applicant other than the Enterprise must undertake:

(a) to accept as enforceable and comply with the applicable obligations created by the provisions of Part XI, the rules and regulations of the Authority, the decisions of the organs of the Authority and terms of his contracts with the Authority, (b) to accept control by the Authority of activities in the Area, as authorized by this Convention, (c) to provide the Authority with a written assurance that his obligations under the contract

fi

will be ful lled in good faith, and (d) to comply with the provision on the transfer of technology set forth in Article 5 of the Annex.

It is particularly interesting to note that the jurisdiction of the Authority is directly exercisable over natural persons. In this sense, it may be said that the Authority has a supranational jurisdiction.

206

206

J. Combacau, Le droit international de la mer, Que sais-je? (Paris, PUF, 1985), p. 91. See also R.-J. Dupuy, Le droit international, Que sais-je? (Paris, PUF, 2001), p. 30.

224

International Law Governing Jurisdictional Zones Finally, the jurisdiction of the Authority is exclusive in the sense that no State or enterprise or natural and juridical person can be engaged upon activities in the Area without approval of the Authority.

207

In summary, the jurisdiction of the Authority is limited to matters provided

by the LOSC. Concerning those matters, however, the Authority can exercise both legislative and enforcement jurisdiction over all people and objects in the Area in an exclusive manner. Further, the jurisdiction of the Authority is essentially spatial in the sense that it can be exercised solely within a speci

fic space, namely the Area. Thus the Authority exercises a sort 208

of spatial jurisdiction – a limited spatial jurisdiction – over the Area.

3.6 System for the Exploration and Exploitation of Resources of the Area

Activities in the Area are to be carried out by the Enterprise and other commercial operators in accordance with Article 153(2) of the LOSC. The commercial operators include States Parties, State enterprises, natural or juridical persons which possess the nationality of States Parties or are effectively controlled by them or their nationals provided for in Article 153(2). This arrangement is called the ‘parallel system ’. This system represents a compromise between various interest groups. Actually the LOSC provides three operational modes for deep seabed mining.

209

First, the Authority carries out activities in the Area directly through its operational organ, i.e. the Enterprise. As will be seen, however, the establishment of the Enterprise was postponed. It is also to be noted that the initial operations are to be carried out through joint ventures pursuant to section 2(2) of the 1994 Implementation Agreement. A contractor which has contributed a particular area to the Authority as a reserved area has the right of

first refusal to enter into a joint-venture arrangement with the Enterprise for exploration and exploitation of that area by virtue of section 2(5) of the Implementation Agreement. Second, the deep seabed operations may also be carried out in association with the Authority by States Parties or other entities speci

fied in Article 153(2)(b). Under Article 153

(3), these operators are obliged to submit, in the form of a contract with the Authority, a plan of work to the Authority. The plan is to be approved by the Council after review by the Legal and Technical Commission. The plan of work must be in the form of a contract in accordance with Article 3 of Annex III. suf

ficiently large

210

and of suf

In this case, each application is required to cover a total area

ficient estimated commercial value to allow two

mining oper-

ations. Within forty-five days of receiving such data, the Authority is to designate which part is to be reserved solely for the conduct of activities by the Authority through the Enterprise or

207 208

Paolillo, ‘Institutional Arrangements’, p. 706. Combacau considered that the Authority ’s jurisdiction is similar to the territorial jurisdiction of States. Combacau,

Le droit international de la mer ,

p. 88. Interestingly, Virally argued that Part XI of the LOSC

conferred the Authority ‘the sovereign rights’ over the Area. M. Virally, ‘Panorama du droit international contemporain: Cours général de droit international public’ (1983-V) 183 209 210

RCADI,

pp. 348 –349.

Paolillo, ‘Institutional Arrangements’, pp. 708–709. As of 2019, there are seventeen contractors for exploration of polymetallic nodules, seven contractors for exploration for polymetallic sulphides and

fi ve contractors for exploration for cobalt-rich ferromanganese

crusts. See www.isa.org.jm/deep-seabed-minerals-contractors.

225

Marine Spaces Beyond National Jurisdiction in association with developing States pursuant to Article 8 of Annex III of the LOSC. The part not reserved for the exploitation by the Enterprise becomes the area for the exploitation of the applicant. This arrangement is called the ‘banking system’ or ‘site-banking system’.

211

This system is closely linked with the parallel system. Third, activities in the Area can also be carried out by the joint arrangement between the Authority and States or other entities referred to in Article 153(2)(b) to conduct activities in the Area in accordance with Article 11 of Annex III. In all cases the Authority is to exercise such control over activities in the Area as is necessary for the purpose of securing compliance with the relevant provisions of Part XI and the Annexes relating thereto, and other relevant rules under Article 153(4).

212

3.7 Obligations and Liability of Sponsoring States

Under LOSC, Annex III, Article 4(3), natural and juridical persons must satisfy two requirements in order to be eligible to carry out such activities. First, they must either be nationals of a State Party or effectively controlled by it or its nationals. Second, they must be ‘ sponsored by such States’. As the ITLOS Seabed Disputes Chamber states, the notion of ‘ sponsorship ’ is a key element in the system for the exploration and exploitation of the

resources of the Area set out in the Convention.

213

The obligations of sponsoring States are

of particular importance to implement relevant rules and obligations with regard to the activities in the Area. According to the Seabed Disputes Chamber, obligations of sponsoring States can be divided into two principal categories, namely, ‘ responsibility to ensure’ and ‘ direct obligations under the LOSC and other relevant instruments ’.

First, ‘responsibility to ensure’ aims to establish a mechanism through which the rules of the LOSC concerning activities in the Area become effective for sponsored contractors who

find their legal basis in domestic law. This obligation may be characterised as an obligation of ‘conduct’ , not of ‘ result’ , and as an obligation of ‘ due diligence ’.

214

In the words of the

Chamber, ‘the ‘due diligence ’ obligation ‘ to ensure’ requires the sponsoring State to take measures within its legal system and that the measures must be ‘ reasonably appropriate’. Second, sponsoring States are obliged to implement ‘direct obligations ’ which include:

215 216

(i) The obligation to assist the Authority in the exercise of control over activities in the Area,

211

217

In practice, both the sulphides and cobalt-crust regulations move away from the mechanism of reserved areas. Instead, the newer regulations give the applicant the opportunity to elect either to provide a reserved area, or to offer the Enterprise a future equity interest, i.e., a minimum of 20 per cent and a maximum of 50 per cent at the stage of exploitation. Regulation 16 of the Sulphides Regulations and Cobalt-Rich Regulations. See also Lodge, ‘The Deep Seabed’, p. 246.

212

2011 ITLOS Advisory Opinion, ITLOS Reports 2011, p. 70, para. 226; p. 33, para. 76. See also LOSC, Article 139.

213

2011 ITLOS Advisory Opinion, ITLOS Reports 2011, p. 32, para. 74. See also Lodge, ‘The Deep Seabed’, pp. 246 –248.

214 215

2011 ITLOS Advisory Opinion, ITLOS Reports 2011, pp. 65–66, paras. 107–110. Ibid. , p. 44, para. 120.

216

Ibid. , paras. 121–122.

217

LOSC, Article 153(4).

226 International Law Governing Jurisdictional Zones (ii) The obligation to apply a precautionary approach,

218

(iii) The obligation to apply best environmental practices,

219

(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,

220

(v) The obligation to ensure the availability of recourse for compensation in respect of damage caused by pollution,

221

and

(vi) The obligation to cooperate with the Authority in the establishment and implementation of programmes for monitoring and evaluating the impacts of deep seabed mining on the marine environment.

222

Furthermore, sponsoring States must take necessary and appropriate measures in order to ful

fil their responsibility under the LOSC, in particular Article 134, Annex III and the 1994

Agreement. The existence of such laws, regulations and administrative measures is a necessary requirement for compliance with the obligation of due diligence of the sponsoring State and for its exemption from liability. Such measures should also be in force for the whole time that a contract with the Authority is in force, and should be kept under review so as to ensure that they meet current standards and that the contractor meets its obliga223

tions effectively without detriment to the common heritage of mankind.

Finally, some mention must be made of the liability of sponsoring States. From the wording of Article 139(2) of the LOSC, the Seabed Disputes Chamber considered it evident that liability arises from the failure of the sponsoring State to carry out its own responsibilities; and that the sponsoring State is not liable for the failure of the sponsored contractor to meet its obligations.

224

Thus application of strict liability is ruled out.

225

An issue to be

examined here involves the relationship between the liability of the contractor and that of the sponsoring State. In this regard, the Chamber took the view that liability of the sponsoring State arises from its own failure to carry out its responsibilities, whereas the contractor’ s liability arises from its own non-compliance. Both forms of liability exist in parallel.

The

Chamber

thus

clearly

rejected

residual

liability

of

sponsoring

States.

226

According to this position, however, there is the risk that a contractor will not meet its liability in full due to its

financial limitations and, as a consequence, compensation for the

damage will not be fully covered. In response, the establishment of a fund within the Authority would seem to be required.

218

227

Regulation 31(2) of the 2000 Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area (hereinafter the Nodules Regulations) and regulation 33(2) of the 2010 Regulations on Prospecting and Exploration for Polymetallic Sulphides in the Area (hereinafter the Sulphides Regulations).

219 220 221 222

Regulation 33(2) of the Sulphide Regulations and section 5.1 of Annex 4. Regulation 32(7) of the Nodules Regulations and regulation 35(8) of the Sulphides Regulations. LOSC, Article 235(2). LOSC Article 206, section 1(7) of the 1994 Agreement, regulation 31(6) of the Nodules Regulations and regulation 33(6) of the Sulphide Regulations.

223 224 226

2011 ITLOS Advisory Opinion, ITLOS Reports 2011, pp. 68–69, paras. 219-222. Ibid., p. 57, para. 172. See also p. 60, para. 184.

225

Ibid., p. 61, para. 189.

Ibid. , pp. 64–65, para. 204. See also pp. 65–66, para. 209.

227

Ibid., p. 65, para. 205.

227

Marine Spaces Beyond National Jurisdiction

3.8 The 1994 Implementation Agreement

(a) General Considerations The regime established by Part XI was innovative in the sense that it provided the parallel system, production policies, the transfer of technology,

financial

terms of contracts and

review conference. Nonetheless, some industrialised States, including the United States, strongly objected to the framework governing the Area. On 29 January 1982, for instance, US President Ronald Reagan stated that ‘while most provisions of the draft convention are acceptable and consistent with US interests, some major elements of the deep seabed mining regime are not acceptable ’.

228

Thus the United States voted against the Convention

and did not sign it. Other industrialised States abstained and did not ratify the Convention. As a consequence, it became apparent that apart from Iceland, all States Parties to the Convention were developing States. In order to address this issue, UNCLOS III set out special rules for ‘ pioneer investors’ in two resolutions appended to the Final Act of the Conference. Resolution I relates to the establishment of the preparatory commission for the Authority and for ITLOS. The commission continued its work until being dissolved in 1994 on the entry into force of the LOSC and the formal establishment of the Authority. Resolution II contained detailed rules involving preparatory investment in pioneer activities relating to polymetallic nodules. This resolution referred to four States (France, Japan, India and the USSR), four multinational consortia and pioneers from developing States which satis as pioneer investors.

229

fied certain conditions

A pioneer investor registered pursuant to this resolution had the

exclusive right to carry out pioneer activities in the pioneer area allocated to it from the date of registration.

230

Resolution II had effect until the entry into force of the LOSC.

231

Later on, major industrialised States, such as the United States (1980), the United Kingdom (1981), Federal Republic of Germany (1980, amended 1982), France (1981), Japan (1982), the USSR (1982) and Italy (1985), enacted unilateral domestic legislation in relation to deep seabed mining.

232

In 1984, eight industrialised States concluded the Provisional

Understanding Regarding Deep Seabed Matters in order to avoid overlapping in deep seabed operations.

228

233

This was called the reciprocating State regime or the ‘ mini-treaty’

Statement by the President, 29 January 1982 (March 1982) 82

Department of State Bulletin, Number 2060,

p. 54. 229 231

Paragraph 1(a) of Resolution II.

230

Paragraph 6 of Resolution II.

Concerning Resolutions I and II, see also D. R. Rothwell and T. Stephens,

The International Law of the Sea,

2nd edn (Oxford, Hart Publishing, 2016), p. 138. 232

E. D. Brown, ‘Neither Necessary nor Prudent at this Stage: The Regime of Seabed Mining and its Impact on the Universality of the UN Convention on the Law of the Sea ’ (1993)

233

Marine Policy, p. 93.

Entered into force 2 September 1984. The eight States are: Belgium, France, Federal Republic of Germany,

ILM, fi ed the LOSC. The United States

Italy, Japan, the Netherlands, the United Kingdom and the United States. For the text, see (1984) 23 pp. 1354 –1360. Apart from the United States, these States have already rati

signed the 1994 Implementation Agreement. It also participated in setting up the Authority by virtue of Article 7 of the Implementation Agreement. Considering that no States objected to the adoption of the Implementation Agreement, there may be room for the view that at present the regime governing the Area set out by the LOSC, along with the Implementation Agreement, can be considered as the only legitimate regime. Harrison,

Making the Law of the Sea, pp. 98

– 99.

228 International Law Governing Jurisdictional Zones regime. However, there were growing concerns that this situation ran the serious risk of damaging the unity and universality of the deep seabed regime established in Part XI and the LOSC as a whole. The delay in the commercial exploitation of deep seabed resources and economic moves towards market-orientated approaches at the global level also encouraged States to reconsider Part XI. Against that background, in July 1990, the UN Secretary-General Javier Pérez de Cuéllar initiated informal consultation in order to meet the speci

fic

objections of the developed

States. These informal consultations took place from 1990 to 1994, and convened.

234

fifteen meetings were

As a result, on 28 July 1994, the UN General Assembly adopted the Implemen-

tation Agreement, by a vote of 121 in favour, none against and seven abstentions.

235

In addition to the Preamble, the Implementation Agreement is composed of ten Articles and an Annex which is divided into nine sections. The provisions of the Implementation Agreement and Part XI of the LOSC are to be interpreted and applied as a single instrument. In the event of any inconsistency between the 1994 Agreement and Part XI, the provisions of the former shall prevail. rati

236

After the adoption of the 1994 Agreement, any instrument of

fication or formal con firmation of or accession to the Convention shall also represent

consent to be bound by the 1994 Agreement.

237

No State or entity may establish its consent

to be bound by the 1994 Implementation Agreement unless it has previously established or establishes at the same time its consent to be bound by the Convention.

238

Despite the title

fies the original regime of Part XI of the LOSC.

of the ‘ Implementation ’ Agreement, it modi

Four points merit highlighting in particular.

(b) Cost-effectiveness As stated in section 1(2) of the Agreement, cost-effectiveness is a key element in the Implementation Agreement. As a corollary, the setting up and the functioning of the organs and subsidiary bodies of the Authority are to be based on an evolutionary approach.

239

For

example, the Secretariat of the Authority is to perform the functions of the Enterprise until it begins to operate independently of the Secretariat.

240

Upon the approval of a plan of work

for exploitation for an entity other than the Enterprise, or upon receipt by the Council of an application for a joint-venture operation with the Enterprise, the Council of the Authority is to take up the issue of the functioning of the Enterprise independently of the Secretariat of the Authority.

241

The obligation of States Parties to fund one mine site of the Enterprise as provided for in Annex IV, Article 11(3) shall not apply in light of the delay in commercial production of mineral resources in the Area. Further to this, States Parties are not required to

234

finance any of

UN General Assembly, Consultations of the Secretary-General on Outstanding Issues Relating to the Deep Seabed Mining Provisions of the United Nations Convention on the Law of the Sea, Report of the SecretaryGeneral, A/48/950, 9 June 1994, para. 4.

235

1836 UNTS, p. 42; (1994) 33 ILM, p. 1309. Entered into force 28 July 1996. As at January 2019, 150 States have rati

236 241

fied the Agreement.

Article 2(1). Section 2(2).

237

Article 4(1).

238

Article 4(2).

239

Section 1(3).

240

Section 2(1).

229 Marine Spaces Beyond National Jurisdiction the operations in any mine site of the Enterprise or under its joint-venture arrangements by virtue of section 2(3). The obligations applicable to contractors shall also apply to the Enterprise under section 2(4). As a consequence, the Enterprise lost its original advantageous position. Concerning the budget of the Authority, section 1(14) provides that until the end of the year following the year during which the Agreement enters into force, the administrative expenses of the Authority shall be met through the budget of the UN. Thereafter, the administrative expense of the Authority is to be met by assessed contributions of its members until the Authority has sufficient funds from other sources to meet those expenses. The Authority shall not exercise the power to borrow funds to finance its administrative budget provided in Article 174(1) of the LOSC. On the other hand, a Finance Committee, which is composed of fifteen members, was established in section 9(1). (c) The Market-orientated Approaches

The following changes to Part XI, which can, essentially, be characterised by their marketorientated approaches, should be highlighted. (i) Production policies: In order to prevent adverse effects on the economies of developing countries which produce and export the mineral to be mined from the Area, Article 151 of the LOSC provided for production limitation.242 However, the industrialised States opposed the limitation of seabed production because it would deter the development of the exploitation of deep seabed mineral resources. 243 Thus, the production limitation was disapplied by section 6(7) of the Implementation Agreement. (ii) The obligation to transfer technology: The transfer of technology is crucial for the developing States because the Enterprise would be unable to operate in the reserved areas if it did not acquire technology necessary to the operation. Thus, Article 5 of Annex III of the LOSC provided mandatory transfer of technology to the Enterprise. Nevertheless, this obligation was unacceptable to the industrialised States because compulsory transfer of technology was considered prejudicial to intellectual property rights and this requirement would introduce a bad precedent. 244 In response, the mandatory transfer of technology enshrined in Article 5 of Annex III of the LOSC was disapplied by section 5(2) of the Implementation Agreement. (iii) Financial terms of contracts: Article 13(2) of Annex III of the LOSC required that a fee be levied for the administrative cost of processing an application for approval of a plan of work in the form of a contract and fixed it at an amount of US$500,000 per application. Further, Article 13(3)–(10) of Annex III imposed on a contractor detailed financial obligations, including an annual fixed fee of US$1 million from the date of entry into force of the 242 243

244

It must be remembered that the product limitation was applicable only to an interim period of twenty-five years in accordance with Article 151(3) of the LOSC. See for instance, this statement of the special representative of the US President for UNCLOS III: J. L. Malone, Statement before the House Foreign Affairs Committee on 23 February, 1982 (1982) 82 Department of State Bulletin , No. 2062, p. 61. See for instance, J. L. Malone, Statement before the House Foreign Affairs Committee on 12 August, 1982 (1982) 82 Department of State Bulletin, No. 2067, p. 49.

230 International Law Governing Jurisdictional Zones contract. However, the industrialised countries considered that the financial terms of the contract were too onerous. 245 The Implementation Agreement thus halves the application fee for either the exploration or exploitation phase to US$250,000 in accordance with section 8(3). The detailed financial obligations of miners set out in Article 13(3) –(10) of Annex III were deleted by section 8(2) of the Implementation Agreement. An annual fixed fee is to be payable from the date of commencement of commercial production pursuant to section 8(1)(d). This will further reduce the burden on the contractor. (iv) Economic assistance: In order to assist developing countries which suffer serious adverse effects on their export earnings or economies because of activities in the Area, Article 151(10) of the LOSC requires the Assembly of the Authority to establish a system of compensation or take other measures of economic adjustment assistance. However, the factors necessary for gauging the adverse effects of deep seabed production on developing land-based producer States would not be known until the commencement of commercial production of mineral resources in the Area. It was also maintained that economic assistance should not be excessive. Thus section 7(1) of the Implementation Agreement provides that the Authority shall establish an economic assistance fund from a portion of the funds of the Authority which exceeds those necessary to cover the administrative expenses of the Authority; and that economic assistance to developing land-based producer States shall be provided from the fund of the Authority. (d) Decision-making

Originally the Assembly was considered as the supreme organ of the Authority establishing general policies under Article 160(1) of the LOSC. However, the Implementation Agreement strengthened the power of the Council in policy-making.246 Furthermore, the decisionmaking system in the Assembly and the Council was modi fied by the Implementation Agreement. Under Article 159(7) and (8) of the LOSC, decisions on questions of procedure in the Assembly were to be taken by a majority, and decisions on questions of substance in the Assembly were to be taken by a two-thirds majority of members present and voting, provided that such majority included a majority of the members participating in the session. Under Article 161(8)(b) and (c), decisions on questions of substance in the Council were to be taken by a two-thirds majority or a three-quarters majority of the members present and voting. However, section 3(2) of the Implementation Agreement introduced a consensus procedure. If all efforts to reach a decision by consensus have been exhausted, decisions by voting in the Assembly are to be taken by a majority of members present and voting, and decisions on questions of substance are to be taken by a two-thirds majority of members present and voting, as provided for in Article 159(8) of the LOSC (section 3(3)). Moreover, Article 161(8)

245 246

See for instance, White House Fact Sheet, 29 January 1982 (March 1982) 82 Department of State Bulletin, No. 2060, p. 55. Section 3(1) and (4).

231 Marine Spaces Beyond National Jurisdiction (b) and (c) of the Convention shall not apply. Instead, section 3(5) introduced a collectiveveto system, by providing:

If all efforts to reach a decision by consensus have been exhausted, decisions by voting in the Council on questions of procedure are to be taken by a majority of members present and voting, and decisions on questions of substance, except where the Convention provides for decisions by consensus in the Council, shall be taken by a two-thirds majority of members present and voting, provided that such decisions are not opposed by a majority in any one of the chambers referred to in paragraph 9.

Paragraph 9 refers to three chambers which are composed of four members, and one chamber which consists of twenty-four States, respectively.

247

The practical effect is that

three of the four members of each chamber can block substantive decisions which do not require consensus. It is to be noted that Russia and the United States are permanently to be 248

elected as members of the chamber provided for in paragraph 15(a) of section 3.

(e) Review Conference Article 155 of the LOSC provided procedures relating to the conference for the review of those provisions of Part XI and the relevant Annexes. In the consultations, however, several industrialised States, including the United States, cast doubt on the validity of this proced249

ure.

Section 4 of the Implementation Agreement thus provides that Article 155(1), (3) and

(4) of the LOSC shall not apply.

(f ) Evaluation The Implementation Agreement revised the original regime of the deep seabed under the LOSC in favour of the industrialised States. However, it must be stressed that the essential elements governing the Area, namely, the principle of the common heritage of mankind, the non-appropriation of the Area and its natural resources, the use exclusively for peaceful purposes, and the bene

fit of mankind as a whole, remain intact.

250

In this regard, Article

311(6) of the LOSC makes it clear:

247

Section 9(a) stipulates: ‘Each group of States elected under paragraph 15(a) to (c) shall be treated as a chamber for the purposes of voting in the Council. The developing States elected under paragraph 15(d) and (e) shall be treated as a single chamber for the purposes of voting in the Council. ’ Chambers set out in para. 15(a)–(c) are: a major consumers group, a major investments group and a major exporters group. The chamber provided for in para. 15(d) and (e) is composed of six developing States and eighteen members elected according to the principle of ensuring an equitable geographical distribution. The members of the Council for 2017 are listed in: A. Jaeckel, ‘Current Legal Developments International Seabed Authority: Developments at the International Seabed Authority’ (2016) 31

248

IJMCL, p. 714.

Paragraph 15(a) refers to ‘one State from the Eastern European region having the largest economy in terms of gross domestic product’, which implies the Russian Federation. The same paragraph also refers to ‘the State, on the date of entry into force of the Convention, having the largest economy in terms of gross domestic production ’, which implies the United States.

249

See for instance, White House Fact Sheet, 29 January 1982 (March 1982) 82 No. 2060, p. 55.

250

L. D. M. Nelson, ‘The New Deep Sea-Bed Mining Regime’ (1995) 10

Department of State Bulletin,

IJMCL, p. 203.

232 International Law Governing Jurisdictional Zones

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.

firmed that the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction . . . as well as the resources The Preamble of the Implementation Agreement also reaf

‘

of the Area, are the common heritage of mankind’. Moreover, section 4 of the Agreement af

firms that the principles referred to in Article 155(2) of the LOSC shall be maintained. This firms the essential elements of the principle of the common heritage of mankind.

provision con

As explained earlier, the establishment of the Enterprise was postponed. Even so, the direct exploration and exploitation of natural resources in the Area through the Enterprise was maintained because this is at the heart of the deep seabed regime. Thus it could well be said that the ‘ parallel system ’ remains unchanged. Furthermore, as the Seabed Disputes Chamber of ITLOS stated, the role of the sponsoring State is to realise the common interest of all States in the proper implementation of the principle of the common heritage of mankind by assisting the Authority and by acting on its own with a view to ensuring that entities under its jurisdiction conform to the rules on deep seabed mining.

251

Overall it may be concluded

that essential elements of the principle of the common heritage of mankind remain intact. While the commercial exploitation of resources of the Area would seem to be a remote possibility,

252

the Authority is playing an important role in the elaboration of rules and

regulations with regard to activities in the Area. Furthermore, the Authority is required to promote and encourage the conduct of marine scienti

fic

research in the Area and to

disseminate the results of such research under Article 143 of the LOSC. In relation to this, in 2006, the Authority established the International Seabed Authority Endowment Fund for Marine Scienti

fic Research in the Area. Moreover, the role of the Authority is increasingly

important in the environmental protection of the Area.

253

Overall it may be said that the

Authority is already playing a valuable role in the making of relevant rules regulating seabed activities, environmental protection and scienti

fic research in the Area.

4 CONCLUSIONS (i) The high seas are governed by the principle of the freedom of the seas. This principle seeks to ensure non-appropriation of the high seas and the freedom of various uses of the

flight, laying submarine cables and pipelines, construction ficial islands, fishing and marine scientific research.

oceans, such as navigation, over of arti

251

Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area Ibid

, Case No. 17, p. 65, para. 226; p. 25, para. 76. Articles 139(1), 153(4) and Article 4(4) of Annex III of the

LOSC refer to the sponsoring States. 252

., pp. 32 –33, para. 101.

M. W. Lodge, ‘The International Seabed Authority’s Regulations on Prospecting and Exploitation for Polymetallic Nodules in the Area’ (2002) 20

253

Journal of Energy and Natural Resources Law

This issue will be discussed in Chapter 8, section 8.2 of this book.

, p. 294.

233 Marine Spaces Beyond National Jurisdiction (ii) In principle, legal order on the high seas is secured by the exclusive jurisdiction of the

flag

State. In this sense, the principle of the exclusive jurisdiction of the

flag

State is

the cardinal principle of international law governing the high seas. Under this principle, the

flag State has responsibility to ensure compliance with relevant rules of international law concerning vessels flying its flag. (iii) However, flag State jurisdiction is seriously undermined by the practice of flags of convenience. As shown by the UN Registration Convention, an attempt has been made to ensure a genuine link between the

flag State and ships flying its flag but with only limited

success. Thus the role of the coastal and port States seems to be increasingly important with a view to securing compliance with relevant rules of the law of the sea. (iv) The principle of the exclusive jurisdiction of the tions. The

first

254

flag State is subject to two excep-

exception involves the right of visit to intercept suspected vessels on the

high seas. Under Article 110(1) of the LOSC, the right of visit applies to: piracy, the slave trade, unauthorised broadcasting, a ship without nationality, and a ship with suspicious nationality. In essence, the right of visit seeks to safeguard the common interests of the international community as a whole. The second exception relates to the right of hot pursuit, which seeks to protect the interests of the coastal State. (v) Neither the principle of sovereignty nor the principle of freedom could provide an equitable legal framework for governing the Area. For this reason, the common heritage of mankind has emerged as the cardinal principle governing the Area. It is argued, therefore, that the principle of the common heritage of mankind can be regarded as an antithesis to the traditional principles governing the law of the sea. (vi)

The

original

regime

embodied

in

the

LOSC

was

signi

ficantly

fied

modi

by

the

1994 Implementation Agreement. Major changes include: the costs to States Parties and institutional arrangements, the approval procedure for an exploration plan, the Enterprise, decision-making, the review conference, transfer of technology, production policy, the

financial

terms of contracts, the establishment of a Finance Committee, and economic

assistance. Nonetheless, the principal elements of the principle of the common heritage of mankind remain intact. Hence it is argued that the common heritage of mankind continues to be the cardinal principle governing activities in the Area.

FURTHER READING 1 The High Seas A. Ademun-Odeke, ‘ An Examination of Bareboat Charter Registries and Flag of Convenience

ODIL, pp. 339 362. IMLI Manual, vol. I, pp. 239 The High Seas , in Oxford Handbook , pp. 203 225.

Registries in International Law’ (2005) 36

–

D. Attard and P. Mallia, ‘The High Seas’, in D. Guilfoyle, ‘

254

’

–275.

–

This question will be addressed in Chapter 7, sections 6.4 and 6.5 and Chapter 8, sections 6.3 and 6.4 of this book.

234 International Law Governing Jurisdictional Zones Institut du droit économique de la mer, Le pavillon: colloque tenu à l’Institut océanographique de Paris (Paris, Pedone, 2008). A. Kanehara, ‘ Challenging the Fundamental Principle of the Freedom of the High Seas and the Flag State Principle Expressed by Recent Non-Flag State Measures on the High Seas’ (2008) 51 Japanese Yearbook of International Law, pp. 21 –56. F. J. M. Llácer, ‘Open Registers: Past, Present and Future’ (2003) 27 Marine Policy, pp. 513–523. J. N. K. Mansell, Flag State Responsibility: Historical Development and Contemporary Issues (Heidelberg, Springer, 2009). A. J. Marcopoulos, ‘Flags of Terror: An Argument for Rethinking Maritime Security Policy Regarding Flags of Convenience’ (2007) 32 Tulane Maritime Law Journal, pp. 277–312. E. Papastavridis, The Interception of Vessels on the High Seas: Contemporary Challenges to the Legal Order of the Oceans (Oxford, Hart Publishing, 2013). N. M. Poulantzas, The Right of Hot Pursuit in International Law, 2nd edn (The Hague, Brill/Nijhoff, 2002).

fi cations of the Margin of

Y. Takei, ‘Assessing Flag State Performance in Legal Terms: Clari Appreciation ’ (2013) 28 IJMCL, pp. 97 –133.

‘International Legal Responses to the Flag State in Breach of its Duties: Possibilities for Other

States to Take Action against the Flag State’ (2013) 82 NJIL, pp. 283 –315. T. Treves, ‘Intervention en haute mer et navires étrangers’ (1995) 41 AFDI , pp. 651–675. ‘Flags of Convenience before the Law of the Sea Tribunal ’ (2004 –2005) 6 San Diego International

Law Journal, pp. 179 –189. United Nations, Commentary on the United Nations Convention against Illicit Traf

fic in Narcotic

Drugs and Psychotropic Substances 1988 (New York, United Nations, 1998). M. J. Wing, ‘Rethinking the Easy Way Out: Flags of Convenience in the Post-September 11th Era’ (2003 –2004) 28 Tulane Maritime Law Journal, pp. 173–190.

2 The Area D. French, ‘ From the Depths: Rich Pickings of Principles of Sustainable Development and General International Law on the Ocean

floor

– The Seabed Disputes Chamber’ s 2011 Advisory

Opinion’ (2011) 26 IJMCL, pp. 525 –568. J. Harrison, ‘Resources of the International Seabed Area’, in E. Morgera and K. Kulovesi (eds.), Research Handbook on International Law and Natural Resources (Cheltenham, Edward Elgar, 2016), pp. 390–410. International Seabed Authority, Basic Texts, 2nd edn (Kingston, International Seabed Authority, 2012), available at: www.isa.org.jm/document/international-seabed-authority-basic-texts. Consolidated Regulations and Recommendations on Prospecting and Exploration, rev. edn (Kingston, International Seabed Authority, 2015), available at: https://www.isa.org.jm/sites/default/

files/files/documents/en-rev-2015.pdf.

M. W. Lodge, ‘The Deep Seabed ’, in Oxford Handbook, pp. 226 –253. A. G. Oude Elferink and E. J. Molenaar (eds.), The International Legal Regime of Areas beyond National Jurisdiction: Current and Future Developments (Leiden, Brill/Nijhoff, 2010). B. H. Oxman, ‘The 1994 Agreement and the Convention ’ (1994) 88 AJIL, pp. 687 –696. M. C. W. Pinto, ‘The Common Heritage of Mankind’ (2012) 361 RCADI, pp. 9–130. R. Rayfuse, ‘Differentiating the Common? The Responsibilities and Obligations of States Sponsoring Deep Seabed Mining Activities in the Area’ (2011) 54 GYIL, pp. 459 –488.

235 Marine Spaces Beyond National Jurisdiction Y. Tanaka, ‘Obligations and Liability of Sponsoring States Concerning Activities in the Area: Re

flections on the ITLOS Advisory Opinion of 1 February 2011

’ (2013) 55

NILR , pp. 205– 230.

H. Tuerk, ‘The International Seabed Area ’, in IMLI Manual, vol. I, pp. 276 –303. United Nations, The Law of the Sea: Concept of the Common Heritage of Mankind. Legislative

–

History of Articles 131 150 and 311(6) of the United Nations Convention on the Law of the Sea (New York, United Nations, 1996). H. Zhang, ‘ The Sponsoring State’s “ Obligation to Ensure” in the Development of the International Seabed Area’ (2013) 28 IJMCL, pp. 681–699.

3 Special Issues R. Barnes, ‘ Refugee Law at Sea’ (2004) 53 ICLQ, pp. 47 –77. R. Buchan, ‘The International Law of Naval Blockade and Israel ’s Interception of the Mavi Marmara’ (2011) 58 NILR , pp. 209–241. I. Caracciolo, ‘ Migration and the Law of the Sea: Solutions and Limitations of a Fragmentary Regime ’, in J. Crawford, A. G. Koroma, S. Mahmoudi and A. Pellet (eds.), The International

Legal Order: Current Needs and Possible Responses: Essays in Honour of Djamchid Momtaz (Leiden, Brill, 2017), pp. 274–287. A. T. Gallagher and F. David, The International Law of Migrant Smuggling (Cambridge University Press, 2014) (in particular, Chapter 6). D. Guilfoyle, ‘The Mavi Marmara Incident and Blockade in Armed Con

fl ict

’ (2011) 81

BYIL,

pp. 171–223. N. Klein, ‘Assessing Australia’s Push Back the Boats Policy under International Law: Legality and Accountability for Maritime Interceptions of Irregular Migrants’ (2014) 15 Melbourne Journal

of International Law , pp. 414–443. I. Mann, Humanity at Sea: Maritime Migration and the Foundations of International Law (Cambridge University Press, 2017). N. Markard, ‘The Right to Leave by Sea: Legal Limits on EU Migration Control by Third Countries’ (2016) 27 EJIL, pp. 591 –616. F. Mussi, ‘Search and Rescue Operations in the Mediterranean Basin: Cooperation between States or a Way to Evade Responsibility? ’, in M. Arcari, L. Balmond and A.-S. Millet-Devalle (eds.),

The Management of Spaces in International and European Law (Naples, Editoriale Scienti

fica,

2016), pp. 203– 229. K. Noussia, ‘The Rescue of Migrants and Refugees at Sea: Legal Rights and Obligations’ (2017) 31

Ocean Yearbook , pp. 155–170. T. Scovazzi, ‘The Particular Problems of Migrants and Asylum Seekers Arriving by Sea’ in L. Westra, S. Juss and T. Scovazzi (eds.), Towards a Refugee Oriented Right of Asylum (Farnham, Ashgate, 2015), pp. 177– 229. ‘Human Rights and Immigration at Sea ’, in R. Rubio-Marín (ed.),

Human Rights and Immigration

(Oxford University Press, 2014), pp. 212–260. S. Trevisanut, ‘Recognizing the Right to be Rescued at Sea ’ (2017) 31 Ocean Yearbook , pp. 139– 154. V. P. Tzevelekos and E. K. Proukaki, ‘Migrants at Sea: A Duty of Plural States to Protect (Extraterritorially)?’ (2017) 86 NJIL, pp. 427–469. R. Virzo, ‘Coastal States and the Protection of Migrant Children at Sea’, in F. Ippolito and G. Biagioni (eds.), Migrant Children: Challenges for Public and Private International Law

fi ca, 2016), pp. 3

(Naples, Editoriale Scienti

–30.

6

Maritime Delimitation Main Issues

As discussed in previous chapters, in the international law of the sea, human activities in the ocean are regulated according to multiple jurisdictional zones. Thus the spatial distribution of jurisdiction of States is the foundation of oceans governance. In determining the spatial extent of coastal State jurisdiction, a question that may arise is the situation where the jurisdiction of two or more coastal States overlaps. In this case, delimitation of the overlapping marine spaces is at issue. This chapter will deal with rules of international law with regard to maritime delimitation, focusing mainly on the following issues:

(i) What is the cardinal principle applicable to maritime delimitations? (ii) What are the basic approaches adopted by international courts and tribunals with regard to maritime delimitations? (iii) What are the advantages and disadvantages of the basic approaches to the law of maritime delimitations? (iv) What are the principal relevant circumstances in the law of maritime delimitation? (v) What is the role of international courts and tribunals in the development of the law of maritime delimitations? (vi) How is it possible to reconcile the requirement of predictability and that of

flexibility in

the law of maritime delimitations?

1 INTRODUCTION The spatial ambit of coastal State jurisdiction over marine spaces in the law of the sea is, in principle, de

fined on the basis of distance from the coast. In this regard, a question which

may arise is how it is possible to delimit marine spaces where the jurisdictions of two or more coastal States overlap. Without rules on maritime delimitation in spaces where coastal State jurisdictions overlap, coastal States cannot enjoy the legal uses of maritime spaces effectively. Hence the law of maritime delimitation is of paramount importance in the law of the sea. In this regard, particular attention must be drawn to two issues. The

first

issue relates to the quest for a well-balanced legal system that reconciles

predictability and

236

flexibility

in the law. In common with all types of law, the law of

237

Maritime Delimitation maritime delimitation must have a certain degree of predictability. On the other hand, as each maritime delimitation case differs,

flexible consideration of various geographical and

non-geographical factors is also required with a view to achieving equitable results. How then is it possible to ensure predictability, while taking into account the in

finite variety of

geographical and non-geographical situations in order to achieve an equitable result? While predictability versus

flexibility of law is a classical dilemma in the legal field, it is

of particular concern in the law of maritime delimitation. The second issue involves change and continuity in the law of maritime delimitation. In essence, the law of maritime delimitation has been developed by international courts and tribunals. In this respect, it is important to note that international courts ’ approaches to maritime delimitations may change with the passage of time. Hence there is a need to analyse both change and continuity in the case law relating to maritime delimitation in order to clarify the direction of the development of the law in this

field. Focusing on these issues, this

chapter will present an outline of the international law of maritime delimitation.

1

2 CONCEPT OF MARITIME DELIMITATION

fi

2.1 De

nition

Maritime delimitation may be de

fined

as the process of establishing lines separating the

spatial ambit of coastal State jurisdiction over maritime space where the legal title overlaps

fi

with that of another State. This de nition calls for three comments. First, a distinction must be made between maritime limits and maritime delimitation. establishment of maritime ‘ limits’ consists of drawing lines that de

2

The

fine the maritime spaces of

a single State, that is to say, spaces that are not in contact with those of another coastal State. The establishment of ‘ limits’ is by its nature a unilateral act. On the other hand, ‘ maritime delimitation’ is an operation to be effected between two or more States, because its object is to separate overlapping areas where legal titles of coastal States compete and each State attempts to exercise spatial jurisdiction over the same maritime space. Second, maritime delimitation is international by nature since it must be effected by agreement between relevant States. The Chamber of the ICJ in the Gulf of Maine case

firmed this point, by stating:

af

‘No maritime delimitation between States with opposite or

adjacent coasts may be effected unilaterally by one of those States.’

3

Hence, maritime

delimitation is international by nature. Third, according to the de con

1

finition

given, the phenomenon of maritime delimitation is

fined to States. Accordingly, delimitation issues among the members of federations fall

For an analysis of this subject by the author, see also Y. Tanaka, Predictability and Flexibility in the Law of

Maritime Delimitation, 2nd edn (Oxford, Hart Publishing, 2019). 2

L. Ca

flisch,

‘The Delimitation of Marine Spaces between States with Opposite and Adjacent Coasts’, in R.-J.

Dupuy and D. Vignes (eds.), A Handbook on the New Law of the Sea (Dordrecht, Nijhoff, 1991), pp. 426–427. 3

Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v United States of America), ICJ Reports 1984, p. 299, para. 112.

238

International Law Governing Jurisdictional Zones outside the scope of this chapter. For the same reason, international organisations, among others the International Seabed Authority, are not subjects of maritime delimitation.

2.2 Typology of Maritime Delimitation

Under the 1958 Geneva Conventions and the 1982 LOSC, four types of maritime delimitation can be identi

fied:

(i) Delimitation of the territorial sea (Article 12 of the Convention on the Territorial Sea and the Contiguous Zone (hereinafter the TSC); Article 15 of the LOSC), (ii) Delimitation of the contiguous zone (TSC, Article 24), (iii) Delimitation of the continental shelf (Article 6 of the Convention on the Continental Shelf; LOSC, Article 83), and (iv) Delimitation of the EEZ (LOSC, Article 74).

These treaties contain no provision with regard to the delimitation of internal waters, although that problem may arise, for instance, in the case of a bay with several riparians. In addition to this, the single maritime boundary, which would delimit the continental shelf and the EEZ/

fishery

zone (FZ) by one line, is at issue. Considering that the factors to be

taken into account may be different for the seabed and superjacent waters, it seems possible that the delimitation line of a continental shelf and an EEZ/FZ would differ as well.

4

A divergence of factors relevant to the seabed and the superjacent waters may entail the risk of creating two competing lines dividing coincident areas and create a situation in which part of the EEZ belonging to one State may overlap part of another State ’s continental shelf. Such a situation would give rise to complex problems relating to jurisdiction. The same problem arises in the application of customary law. In practice, there is a clear trend that States draw a single maritime boundary for the continental shelf and the EEZ/FZ.

3 TREATY LAW CONCERNING MARITIME DELIMITATION

3.1 The 1958 Geneva Conventions

Concerning the delimitation of the territorial seas, Article 12(1) of the TSC provides the triple rule of ‘agreement – equidistance (median line) – special circumstances’:

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

4

The concept of the FZ does not include the seabed. The institution of the EEZ comprises the seabed where the EEZ is established (LOSC, Article 56(1)). Accordingly, the seabed is no longer the continental shelf, but the seabed of the EEZ. Thus, theoretically, such a single maritime boundary becomes simply the boundary of the EEZ. Strictly speaking, the expression of ‘a single maritime boundary between the continental shelf and the EEZ’ might be questioned. At present, however, many writers often use the expression.

239 Maritime Delimitation 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 provisions of this paragraph shall not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance with this provision.

That triple rule can also be seen in Article 6 of the 1958 Convention on the Continental Shelf:

1.

Where the same continental shelf is adjacent to the territories of two or more States whose coasts are opposite each other, the boundary of the continental shelf appertaining to such States shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justi

fi

ed by special circumstances, the boundary is the

median line, every point of which is equidistant from the nearest point of the baselines from which the breadth of the territorial sea of each State is measured. 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

fi

absence of agreement, and unless another boundary line is justi

ed by special

circumstances, the boundary shall be determined by application of the principle of equidistance from the nearest point of the baselines from which the breadth of the territorial sea of each State is measured.

The triple rule calls for three comments. First, one may wonder whether the reference to ‘agreement’ could have been omitted as self-evident. As explained earlier, however, maritime delimitation is not a unilateral act. Accordingly, the reference to ‘agreement’ may be at least useful to highlight the international character of maritime delimitation. Second, a question arises with regard to the relationship between the element of ‘equidistance ’ and that of ‘special circumstances ’. Provided that there is a hierarchy between these two elements, it may be possible to interpret equidistance as a principle and special circumstances as an exception, or, by contrast, special circumstances as a principle and equidistance as an exception. Should there be no hierarchy in those elements, equidistance and special circumstances can be regarded as one combined rule. As will be seen, the Court of Arbitration in the 1977 In any case, it is dif

fi

Anglo-French Continental Shelf

cult to

fi

case adopted this interpretation.

nd an authoritative answer in the framework of the Geneva

Conventions. The third issue concerns the concept of special circumstances, which is intended to avoid inequitable results from a mechanical application of the equidistance method. Nonetheless, the Geneva Conventions do not give a clear meaning for special circumstances. Hence, the speci

fi

fi

cs of special circumstances must be clari

dence and State practice in the

fi

ed through the development of jurispru-

eld of maritime delimitation.

240

International Law Governing Jurisdictional Zones With regard to delimitation of the contiguous zone, Article 24(3) of the TSC provides a delimitation rule different from that governing the territorial sea and the continental shelf:

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 contiguous zone beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial sea of the two States is measured.

It follows that the pure equidistance method is applicable to the delimitation of contiguous zones. The omission of any reference to special circumstances is likely to be 5

explained by the limited powers attributed to coastal States in such zones.

The TSC

contains no rule relating to the delimitation of internal waters. Considering that coastal States

possess

even

more

extensive

powers

in

their

internal

waters

than

in

their

territorial sea, it appears to be possible to apply, by analogy or a fortiori, the same 6

triple rule.

3.2 The 1982 UN Convention on the Law of the Sea

The LOSC differs from the 1958 Geneva Conventions in three respects. First, the law applicable to the continental shelf was separated from that of territorial sea delimitation. While, under Article 15 of the LOSC, the delimitation of the territorial sea is governed by the traditional triple rule,

7

the delimitation of the continental shelf follows a

different rule. Second, the delimitation of the contiguous zone is no longer mentioned in the text of the LOSC. Consequently, the rule applicable to the contiguous zone became unclear. Third, Articles 74(1) and 83(1) of the LOSC formulate identical rules for the delimitation of the continental shelf and of the EEZ:

The delimitation of the exclusive economic zone [the continental shelf] between States with opposite and 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.

5 6

Ca

flisch,

‘The Delimitation of Marine Spaces ’, p. 443.

Ibid., p. 442; L. Lucchini and M. Voelkel, Droit de la mer, tome 2: Délimitation, Navigation et Pêche, vol. 1, Délimitation (Paris, Pedone, 1996), pp. 63 –64.

7

For a detailed analysis of the application of Article 15, see M. Lando, ‘Judicial Uncertainties Concerning Territorial Sea Delimitation under Article 15 of the United Nations Convention on the Law of the Sea’ (2017) 66 ICLQ, pp. 589–623.

241 Maritime Delimitation In the drafting of these provisions, there was disagreement between the supporters of ‘ equidistance’ and the supporters of ‘equitable principles ’.

two groups was also linked to another dif

ficult

8

The confrontation between the

issue concerning peaceful settlement of

disputes. While the supporters of ‘equidistance’ were, as part of the package, in favour of establishing a compulsory, third-party system for the settlement of delimitation disputes, the supporters of ‘equitable principles ’ generally rejected the idea of compulsory judicial procedures. Owing to the confrontation between the two schools of thought, as late as one year before the adoption of the LOSC, no agreement had yet been reached with respect to the rule applicable to the delimitation of the EEZ and to the continental shelf. In order to break this deadlock, President Koh proposed a draft article which would bring about a compromise and, on 28 August 1981, the draft was incorporated into the Draft Convention.

9

fications suggested by the Drafting Committee and approved by the Plenary finally, Articles 74(1) and 83(1) of the has recognised that the provisions reflect customary international law.

With a few modi

Conference on 24 September 1982, the texts became, LOSC. The ICJ

10

These provisions require four observations. First, Articles 74(1) and 83(1) omit any reference to a method of delimitation. In the absence of any method of delimitation, these provisions are likely to remain meaningless in speci

fic situations. As will be seen, however, the interpretation of Articles 74(1) and 83(1)

has changed through the development of jurisprudence relating to maritime delimitations. Currently international courts and tribunals take the view that the equidistance method is incorporated into these provisions. Second, the concept of ‘equitable solution’ is highly obscure. Hence this reference may be too vague to be very useful. Third, it appears that the reference to Article 38 of the Statute of the ICJ as a whole is not of much use in determining the applicable law because Article 38 simply enumerates the sources of international law. Furthermore, decisions ex aequo et bono, i.e. extra-legal considerations set out in Article 38(2), seem to be less relevant. There is scope to argue that the references in Articles 74 and 83 should have been limited to Article 38(1).

11

Fourth, Article 311(1) of the LOSC stipulates that it shall prevail, as between States Parties, over the 1958 Geneva Conventions. Article 311(5) further provides that ‘ [t]his Article does not affect international agreements expressly permitted or preserved by other Articles of this Convention’ . This provision is applicable to Article 6 of the Geneva Convention on the Continental Shelf, since Article 83 of the LOSC refers to Article 38 of the ICJ Statute. It would follow that Article 6 of the Geneva Convention applies between Parties to both the Geneva Convention and the LOSC.

8

12

For a detailed legislative history of these provisions, see Virginia Commentary, vol. 2 (Dordrecht, Nijhoff, 1993), pp. 796– 819 and pp. 948–985; S. P. Jagota, Maritime Boundary (Dordrecht, Nijhoff, 1985), pp. 219 –272; G. J. Tanja, The Legal Determination of International Maritime Boundaries (Deventer, Kluwer, 1990), pp. 81–116; Dissenting Opinion of Judge Oda in the Tunisia/Libya case, ICJ Reports 1982, pp. 234 –247, paras. 131–145.

9 11

Doc. A/CONF.62/L.78. Ca

flisch,

10

Maritime Dispute (Peru v Chile) , ICJ Reports 2014, p. 65, para. 179.

‘The Delimitation of Marine Spaces’, p. 485.

12

Ibid., p. 479.

242

International Law Governing Jurisdictional Zones

4 DEVELOPMENT OF CASE LAW RELATING TO MARITIME DELIMITATION: TWO CONTRASTING APPROACHES A remarkable feature of the law of maritime delimitation is that the law has been developed through international courts and tribunals. Three distinct phases may be identi development of jurisprudence in this

field.

fied in the

–

4.1 The First Phase (1969 1992) The development of modern jurisprudence in the

field of maritime delimitation commenced

with the 1969 North Sea Continental Shelf judgment.

13

In this judgment, the ICJ held that

‘ delimitation must be the object of agreement between the States concerned, and that such 14

agreement must be arrived at in accordance with equitable principles ’ .

After the judg-

ment, equitable principles as customary law came to be at the heart of the law of maritime delimitation. However, the Court rejected the existence of any obligatory method of continental shelf delimitation. According to the Court, ‘there [is] no other single method 15

of delimitation the use of which is in all circumstances obligatory’ .

The Court continued

that ‘ it is necessary to seek not one method of delimitation, but one goal’.

16

In the Court’ s

view, it is the goal which should be stressed, and the law of maritime delimitation should be

fined only by this goal, i.e. the achievement of equitable results. In this sense, one could

de

speak of a result-orientated equity approach.

17

This approach allows international courts to

decide, case-by-case, on the equitable results to be achieved without being bound by any method of maritime delimitations. Thus, the result-orientated equity approach emphasises maximum

flexibility of the law of maritime delimitation.

However,

the

Arbitral

Tribunal,

in

the

1977

Anglo-French Continental Shelf case,

followed a line of argument different from that adopted in the North Sea Continental Shelf judgment. Unlike the ICJ in the North Sea Continental Shelf cases, the Court of Arbitration equated Article 6 of the 1958 Geneva Convention on the Continental Shelf, as a single combined equidistance– special circumstances rule, with the customary law of equitable principles.

18

On the basis of this interpretation, the Court of Arbitration applied the equi-

distance method with modi

fication

in the Atlantic region. In this regard, the Court of

Arbitration made an important pronouncement:

13

It is not suggested that prior to 1969 there was no decision with regard to maritime delimitations. For example, the 1909 Grisbadarna case between Norway and Sweden provides an important case concerning the delimitation of the territorial sea.

14

North Sea Continental Shelf (Federal Republic of Germany v Netherlands) (Federal Republic of Germany v Denmark), ICJ Reports 1969, p. 46, para. 85. See also p. 53, para. 101(C)(1).

15 17

Ibid., p. 53, para. 101(B). See also p. 49, para. 90.

16

Ibid., p. 50, para. 92.

The result-orientated equity approach is a concept for analysis. Basically, this approach corresponds to the concept of ‘autonomous equity’ presented by Weil. P. Weil, Perspectives du droit de la délimitation maritime (Paris, Pedone, 1988), pp. 179 –181, 203– 212.

18

The Anglo-French Continental Shelf Arbitration Award, 18 RIAA, p. 45, para. 70.

243 Maritime Delimitation

The Court notes that in a large proportion of the delimitations known to it, where a particular

fl

geographical feature has in

uenced the course of a continental shelf boundary, the method of

delimitation adopted has been some modi rather than its total rejection

...

fi

cation or variant of the equidistance principle

it seems to the Court to be in accord not only with the legal

rules governing the continental shelf but also with State practice to seek the solution in a method modifying or varying the equidistance method rather than to have recourse to a wholly different criterion of delimitation.

19

The Court of Arbitration thus accepted the applicability of the equidistance method as a starting point, even where a particular geographical element exists in a situation of lateral delimitation. In so doing, the Court of Arbitration considered equity to be a corrective element. In this sense, one may call this methodology the corrective-equity approach. According to this approach, the equidistance method is applied at the

fi

20

rst stage of delimi-

tation and, at the second stage, a shift of the equidistance line may be envisaged if relevant circumstances warrant it. Equidistance is the only predictable method for ensuring predictability of results in the sense that once the base points are

fi

xed, the delimitation line is

mathematically determined. The corrective-equity approach thus highlights predictability in the law of maritime delimitation. In summary, two contrasting approaches appeared in the 1969 and 1977 decisions on the basis of equitable principles. In the 1982

Tunisia/Libya

case concerning continental shelf delimitation, the ICJ further

promoted the result-orientated equity approach. The Court pronounced:

The result of the application of equitable principles must be equitable

...

It is, however, the

result which is predominant; the principles are subordinate to the goal. The equitableness of a principle must be assessed in the light of its usefulness for the purpose of arriving at an 21

equitable result.

In this case, the Court accepted neither the mandatory character of equidistance, nor some privileged status of equidistance in relation to other methods. approach, the

application

circumstances in speci

19

Emphasis added.

Ibid.,

fi

of

equitable principles

would be

22

According to the Court’s

broken down

c situations, ruling out any predetermined method.

into relevant

23

p. 116, para. 249. The Court took into account the fact that, in the Atlantic region,

Article 6 was applicable. As Article 6 is the particular expression of customary law of equitable principles, the result would be the same if customary law had been applied. 20

The corrective-equity approach is a concept for analysis. Weil called this approach ‘équité correctrice’. Weil,

Perspectives, 21 22

23

p. 179.

Continental Shelf (Tunisia v Libyan Arab Jamahiriya), Ibid.,

ICJ Reports 1982, p. 59, para. 70.

p. 79, para. 110.

Judge Jiménez de Aréchaga clearly advocated this view. Separate Opinion of Judge Jiménez de Aréchaga,

ibid .,

p. 106, para. 24.

244

International Law Governing Jurisdictional Zones In the 1984

Gulf of Maine case relating to the delimitation of a single maritime boundary, the

Chamber of the ICJ also echoed the result-orientated equity approach. In this case, the Chamber pronounced a ‘fundamental norm ’ applicable to every maritime delimitation between neighbouring States. The

first part of the norm is that maritime delimitation must be sought and

effected by means of an agreement in good faith. The second part of the norm is:

In either case, delimitation is to be effected by the application of equitable criteria and by the use of practical methods capable of ensuring, with regard to the geographic con the area and other relevant circumstances, an equitable result.

fi

guration of

24

In this formulation, ‘ an equitable result’ should be achieved by resort to ‘equitable criteria ’ and a ‘ practical method’. According to the Chamber, there has been no systematic de

finition of

equitable criteria because of their highly variable adaptability to different concrete situations. Thus, ‘equitable criteria’ are excluded from the legal domain.

25

The same is true regarding the

‘ practical method’ , since the latter would be selected on a case-by-case basis, relying on actual

situations.

26

fines neither the equitable criteria nor the

In the view of the Chamber, the law de

practical method, simply advancing the idea of ‘an equitable result’. The full Court, in the

27

Libya/Malta case of 1985, also stressed the result to be achieved, not

the means to be applied.

28

At the stage of establishing the continental shelf boundary,

however, the Court applied the equidistance method as a

first

provisional step, and the

equidistance line was adjusted in a second stage on account of relevant circumstances.

29

In so doing, the Court adopted the corrective-equity approach for the delimitation of the continental shelf between opposite coasts at the operational stage. It may be said that the

Libya/Malta

used.

The

judgment has a hybrid character in the sense that two approaches were

result-orientated

Arbitration

30

and the 1992

approach

was

echoed

by

the

1985

St. Pierre and Miquelon Arbitration.

31

Guinea/Guinea-Bissau

Overall it can be observed

that between 1969 and 1992 international courts and tribunals basically took the resultorientated equity approach.

–

4.2 The Second Phase (1993 2007) However, the law of maritime delimitation was to change towards the corrective-equity approach. A turning point was the 1993

24 26 27

25

ICJ Reports 1984, p. 300, para. 112.

Ibid.,

Greenland/Jan Mayen judgment. The Greenland/Jan

Ibid.,

pp. 312–313, paras. 157–158.

p. 315, paras. 162–163.

In the second segment of opposite coasts, the Chamber applied the corrective-equity approach.

Ibid.,

pp. 333– 337, paras. 214–223. 28 30

ICJ Reports 1985, pp. 38–39, para. 45. (1986) 25

ILM,

(1985) 89

RGDIP,

29

Ibid.,

pp. 52–53, para. 73.

pp. 289–290, para. 89. The French text is the authentic one. Award of 14 February 1985, pp. 484

et seq.

The

Guinea/Guinea-Bissau

award will be quoted from the English

translation to enhance comprehension. 31

The

St. Pierre and Miquelon

Arbitration Award, (1992) 31

ILM,

p. 1163, para. 38.

245 Maritime Delimitation Mayen case involved a maritime delimitation between the continental shelf and the FZ. In this case, there was no agreement on a single maritime boundary and, thus, the law applicable to the continental shelf and to the EEZ/FZ had to be examined separately. Both Parties had rati

fied the Convention on the Continental Shelf. In this case, the Court attempted to achieve

assimilation at three levels. First, the Court equated Article 6 of the Convention on the Continental Shelf with customary law by relying on a passage of the 1977 award of the Court of Arbitration in the Anglo-French Continental Shelf case.

32

The Court ruled:

[I]n respect of the continental shelf boundary in the present case, even if it were appropriate to apply, not Article 6 of the 1958 Convention, but customary law concerning the continental shelf as developed in the decided cases, it is in accord with precedents to begin with the median line as a provisional line and then to ask whether ‘special circumstances’ require any adjustment or shifting of that line.

33

Second, with respect to the law applicable to the FZ, the Court equated the customary law applicable to the FZ with that governing the EEZ on the basis of the agreement of the Parties.

34

Third,

quoting the Anglo-French

Arbitral Award, the Court

assimilated the law of

continental shelf delimitation with that of the FZ at the customary law level. In this regard, the Court took the view that ‘both for the continental shelf and for the

fishery zones in this

case, it is proper to begin the process of delimitation by a median line provisionally 35

drawn ’ .

Furthermore, the Court held:

It cannot be surprising if an equidistance–special circumstances rule produces much the same result as an equitable principles–relevant circumstances rule in the case of opposite coasts, whether in the case of a delimitation of continental shelf, of

fi

shery zone, or of an all-purpose

36

single boundary.

Thus, for the

first time in the case law of the ICJ, the Court applied the corrective-equity

approach as customary law. It is important to note that under this approach, the equidistance method is incorporated into the domain of customary law. Later on, basically the corrective-equity approach was echoed by jurisprudence relating to maritime delimitations. In the 1999 Eritrea/Yemen Arbitration (Second Phase), the Arbitral Tribunal applied the corrective-equity approach under Articles 74 and 83 of the LOSC.

37

In the

2001 Qatar/Bahrain case, the ICJ accepted the applicability of the corrective-equity approach

32

Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v Norway), ICJ Reports 1993, p. 58, para. 46.

33 37

Ibid., p. 61, para. 51.

34

Ibid., p. 59, para. 47.

35

Ibid., p. 62, para. 53.

36

Ibid., para. 56.

The Eritrea/Yemen Arbitration Award (Second Phase), 22 RIAA, p. 365, paras. 131–132.

246 International Law Governing Jurisdictional Zones as customary law in the delimitation between States with adjacent coasts.

38

Furthermore, the

ICJ, in the 2002 Cameroon/Nigeria case, broke new ground by applying the corrective-equity approach under Articles 74 and 83 of the LOSC. speci

39

According to the Court’s interpretation, a

fic method, i.e. the equidistance method, should be incorporated into Articles 74 and 83. fic delimitation method was omitted in drafting those

Considering that any reference to a speci

provisions, it may be said that this is a creative interpretation by the Court. In the 2006 Barbados/Trinidad and Tobago Arbitration, the Arbitral Tribunal did not admit a mandatory character of any delimitation method. Nevertheless, the Arbitral Tribunal took the view that ‘ the need to avoid subjective determinations requires that the method used starts with a measure of certainty that equidistance positively ensures, subject to its subsequent correction if justi

fied . ’

40

Thus the Arbitral Tribunal applied the corrective-equity

approach in the operation of maritime delimitation under Articles 74 and 83 of the LOSC.

41

The Arbitral Tribunal, in the 2007 Guyana/Suriname Arbitration, applied the correctiveequity approach more clearly under Articles 74 and 83 of the LOSC. The view of the Arbitral Tribunal deserves to be quoted:

The case law of the International Court of Justice and arbitral jurisprudence as well as State practice are at one in holding that the delimitation process should, in appropriate cases, begin by positing a provisional equidistance line which may be adjusted in the light of relevant circumstances in order to achieve an equitable solution. The Tribunal will follow this method in 42

the present case.

However, the ICJ, in the 2007 Nicaragua/Honduras case, took the view that the application of the equidistance method at the

first stage of maritime delimitation is not obligatory. Owing

to the very active morphodynamism of the relevant area, the Court found itself that it could not apply the equidistance line in the Nicaragua/Honduras case. Accordingly, the Court established a single maritime boundary by applying the bisector method. Nonetheless, the Court prudently added that ‘equidistance remains the general rule’ .

43

In fact, with respect to

the delimitation around the islands in the disputed area, the Court applied, without any problem, the corrective-equity approach by referring to the Qatar/Bahrain case.

44

It can be

considered, therefore, that the departure from the previous jurisprudence is only partial.

38

45

Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain), ICJ Reports 2001, p. 91, para. 167 and p. 111, para. 230.

39

Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening) , ICJ Reports 2002, pp. 441–442, paras. 288– 290.

40

The Barbados/Trinidad and Tobago Arbitration Award, 27 RIAA, p. 230, para. 306.

41

Ibid., pp. 214–215, para. 242.

42

The Guyana/Suriname Arbitration Award, 30 RIAA, p. 95, para. 342. See also p. 93, para. 335.

43

Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v Honduras), ICJ Reports 2007, p. 745, para. 281.

44 45

Ibid., pp. 751–752, paras. 303– 304. Y. Tanaka, ‘Case Concerning the Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (8 October 2007)’ (2008) 23 IJMCL, pp. 342–343; R. Churchill, ‘Dispute Settlement under the

247

Maritime Delimitation

–

4.3 The Third Phase (2009 present) The third phase of the law of maritime delimitation commenced with the 2009 Black Sea case. In this case, the ICJ, for the

first time in its jurisprudence, clearly formulated the so-

called three-stage approach to maritime delimitations under Articles 74 and 83 of the LOSC. According to the Court, the process of maritime delimitation will be divided into three

first stage is to establish the provisional delimitation line. It is in principle an

stages. The

equidistance line. At the second stage, the Court is to examine whether there are relevant circumstances calling for the adjustment of the provisional equidistance line in order to achieve an equitable result. At the third and

final stage, the Court will verify whether the

delimitation line does not lead to an inequitable result by applying the test of disproportionality.

46

It is noteworthy that the disproportionality test was given its own independent

stage. Considering that this test aims to check for an equitable outcome to maritime delimitation, it may be argued that the three-stage approach in the Black Sea case can be regarded as a variation of the corrective-equity approach developed through judicial practice in the

field

of maritime delimitation.

47

The three-stage approach, which is also

called ‘the equidistance/relevant circumstances method’ , was adopted by ITLOS in the 2012

Bangladesh/Myanmar case. In this case, the Tribunal formulated that approach:

[A]t the

fi

rst stage it will construct a provisional equidistance line, based on the geography of

the Parties’ coasts and mathematical calculations. Once the provisional equidistance line has been drawn, it will proceed to the second stage of the process, which consists of determining whether there are any relevant circumstances requiring adjustment of the provisional equidistance line; if so, it will make an adjustment that produces an equitable result. At the third and

fi

nal stage in this process the Tribunal will check whether the line, as adjusted, results

fi

in any signi

cant disproportion between the ratio of the respective coastal lengths and the ratio 48

of the relevant maritime areas allocated to each Party.

The three-stage approach was adopted by the ICJ, ITLOS and Annex VII Arbitral Tribunals in subsequent cases concerning maritime delimitations (see Table 6.1).

4.4 Commentary Overall, the history of the law of maritime delimitation shows a vacillation between two contrasting approaches to maritime delimitations: the result-orientated equity approach which

emphasises

maximum

flexibility

and

the

corrective-equity

approach

which

UN Convention on the Law of the Sea: Survey for 2007’ (2008) 23 IJMCL, pp. 622 –624. See also Y. Tanaka,

flections on Maritime Delimitation in the Nicaragua/Honduras Case

‘Re 46 47

’ (2008) 68

ZaöRV, pp. 903 –937.

Maritime Delimitation in the Black Sea (Romania v Ukraine), ICJ Reports 2009, pp. 101 –103, paras. 115–122.

fl ections on Maritime Delimitation in the Romania/Ukraine Case before the International Court

Y. Tanaka, ‘Re

of Justice ’ (2009) 56 NILR, pp. 419– 420. 48

Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal, ITLOS Reports 2012, pp. 67– 68, para. 240.

248

International Law Governing Jurisdictional Zones

T A B L E 6 . 1 I N T E R N A T I O N A L C O U R T S’ A P P R O A C H E S T O M A R I T I M E DE L I M I T A T I O N S

Year

Case

Type

Configuration

Approach

1969

The

North Sea Continental Shelf

CS

AC

RE

1977

The

Anglo-French Continental Shelf

CS

AC/OC

CE

1982

The

Tunisia/Libya

CS

AC/OC

RE

1984

The

Gulf of Maine

SMB

AC/OC

RE/CE

1985

The

Libya/Malta

CS

OC

RE/CE

1985

The

Guinea/Guinea-Bissau Arbitration

SMB

AC

RE

1992

The

St. Pierre and Miquelon

SMB

AC

RE

1993

The

Greenland/Jan Mayen

SMB

OC

CE

1999

The

Eritrea/Yemen

Arbitration

SMB

OC

CE

2001

The

Qatar/Bahrain

case (ICJ)

TS/SMB

AC/OC

CE

2002

The

Cameroon/Nigeria

TS/SMB

AC

CE

2006

The

Barbados/Trinidad and Tobago Arbitration

SMB/CS

AC/OC

RE/CE

2007

The

Guyana/Suriname

TS/SMB

AC

CE

2007

The

Nicaragua/Honduras

TS/SMB

AC

RE/CE

2009

The

Black Sea case

SMB

AC/OC

Three-stage

2012

The

Bangladesh/Myanmar case

TS/SMB/CS*

AC

Three-stage

2012

The

Nicaragua/Colombia

TS/SMB

OC

Three-stage

2014

The

Chile/Peru

TS/SMB

AC

Three-stage

2014

The

Bangladesh/India Arbitration

TS/SMB/CS*

AC

Three-stage

2017

The

Croatia/Slovenia

TS

AC

CE

2017

The

Ghana/Côte d’ Ivoire

TS/SMB/CS*

AC

Three-stage

2018

The

Costa Rica/Nicaragua

TS/SMB

AC

Three-stage

cases (ICJ) Arbitration

case (ICJ) case (ICJ Chamber)

case (ICJ)

Arbitration

case (ICJ)

case (ICJ)

Arbitration case (ICJ)

(ICJ) (ITLOS)

case (ICJ)

case (ICJ)

Arbitration case (ITLOS Chamber) case (ICJ)

CS: continental shelf CS*: continental shelf beyond 200 nautical miles SMB: single maritime boundary TS: territorial sea AC: adjacent coast OC: opposite coast RE: result-orientated equity approach CE: corrective-equity approach Three-stage: the three-stage approach

highlights predictability. In this sense, it may be said that the development of the law of maritime delimitation is essentially characterised by the tension between predictability and

fl

exibility in the law. Under

the

result-orientated

equity

approach,

international courts

and tribunals

may

exercise a large measure of discretion in each case without being bound by any method.

249 Maritime Delimitation

flexibility of

Considering that the factors to be considered vary in each case, the merit of

this approach is not negligible. However, because of its excessive subjectivity and the lack of

predictability,

the

result-orientated

equity

approach

runs

the

risk

of

reducing

the

normativity of the law of maritime delimitation. By contrast, the important advantage of the corrective-equity approach or its variation of the three-stage approach is that it has a certain degree of predictability by incorporating a speci

fic

method

of delimitation,

i.e. the equidistance method, into the legal domain.

According to this approach, a consideration of equity may come into play at a second stage, but only in cases in which provisionally drawn equidistance lines produce inequitable results. To this extent, the corrective-equity or three-stage approach makes it possible to reduce the subjectivity and unpredictability of the law of maritime delimitation. It may be said that the corrective-equity approach would provide a better framework for balancing predictability and

flexibility.

49

The application of the equidistance method at the

first stage of maritime delimitation is

not merely a matter of pragmatism. The application of that method is closely linked to the legal title over marine spaces.

50

In this regard, the ICJ, in the Libya/Malta case, was clear:

It therefore seems logical to the Court that the choice of the criterion and the method which it is to employ in the

fi

rst place to arrive at a provisional result should be made in a manner 51

consistent with the concepts underlying the attribution of legal title.

For the Court, ‘ the legal basis of that which is to be delimited cannot be other than pertinent 52

to the delimitation ’ .

Since the legal title over maritime spaces is attributed by virtue of

distance, it is logical that the method of delimitation should re

flect

this element. The

flects

criterion of distance is spatial in nature. Equidistance is the only method which re

the spatial nature of the distance criterion, for it comes nearest to an equal division of overlapping area by relying on the distance from the coasts.

53

Should a method of delimi-

tation be combined with the distance criterion, the equidistance method should logically be singled out. One can thus argue that the application of the equidistance method at the

first

stage of maritime delimitation rests on a solid legal basis. International jurisprudence seems to present a clear trend for the application of the threestage approach to maritime delimitations under Articles 74(1) and 83(1) of the LOSC as well as customary law. As ITLOS stated in the Bangladesh/Myanmar case:

49

Judge Gilbert Guillaume con

firmed this view. Speech by His Excellency Judge Gilbert Guillaume, President

of the International Court of Justice, to the Sixth Committee of the General Assembly of the UN, 31 October 2001. 50

Weil explicitly advanced the inter-linkage between the legal title over marine spaces and the delimitation method. See Weil, Perspectives, p. 53. Lucchini and Voelckel also echoed this view. L. Lucchini and M. Voelkel, Droit de la mer, Tome 2 : Délimitation, Navigation et Pêche, vol. I, Délimitation (Paris, Pedone, 1996), 211. Further, Tanaka, Predictability and Flexibility, chapter 6.

51 52

Continental Shelf (Libyan Arab Jamahiriya v Malta), ICJ Reports 1985, pp. 46 –47, para. 61. Ibid., p. 34, para. 34.

53

Weil, Perspectives, pp. 53, 64 and 86.

250

International Law Governing Jurisdictional Zones International courts and tribunals have developed a body of case law on maritime delimitation which has reduced the elements of subjectivity and uncertainty in the determination of 54

maritime boundaries and in the choice of methods employed to that end

...

Over time, the

absence of a settled method of delimitation prompted increased interest in enhancing the objectivity and predictability of the process.

55

However, it is not suggested that the law of maritime delimitation could acquire a suf degree of predictability. at the

56

ficient

In this regard, two points can be made. First, it must be noted that

first stage of the delimitation process, consideration of equity already comes into play

when an international court selects relevant base points for drawing a provisional equidistance line. Yet, this blurs the distinction between the

first and second stage of maritime

delimitation. Furthermore, since selection of base points by judges is not free from subjectivity,

57

selection of base points by judges may entail the risk of undermining the value of

predictability at the approach, the

first

stage of maritime delimitation.

58

Second, under the three-stage

final delimitation line is determined by the consideration of relevant circum-

stances. While an adjustment of a provisional equidistance line at the second stage of maritime delimitation relies on a case-by-case appreciation of relevant circumstances by international courts and tribunals, an excessively creative adjustment would run the risk of undermining the predictability of the law of maritime delimitation. It is thus necessary to examine the relevant circumstances in maritime delimitations.

5 CONSIDERATION OF RELEVANT CIRCUMSTANCES (1): GEOGRAPHICAL FACTORS Relevant circumstances claimed by the parties to a maritime delimitation dispute are highly diverse, and a comprehensive exposition on those circumstances is out of place in this book.

59

Thus this section and that which follows it seek to outline the principal relevant circumstances.

54 56

The Bangladesh/Myanmar case, ITLOS Reports 2012, p. 72, para. 226.

55

Ibid., p. 63, para. 228.

For a critical analysis of the three-stage method, see Y. Tanaka, ‘The Mirage of Predictability in the Law of Maritime Delimitation’ (2014) 113 The International Journal of Law and Diplomacy, pp. 1–29; F. Olorundami, ‘Objectivity versus Subjectivity in the Context of the ICJ’s Three-stage Methodology of Maritime Boundary

Delimitation’ (2017) 32 IJMCL, pp. 36–53. 57

C. G. Lathrop, ‘The Provisional Equidistance Line: Charting a Course between Objectivity and Subjectivity?’, in A. G. Oude Elferink, T. Henriksen and S. V. Busch (eds.), Maritime Boundary Delimitation: The Case Law. Is it Consistent and Practicable? (Cambridge University Press, 2018), p. 211.

58

Commentators gave their misgivings about the risk. See Nuno Marques Antunes and Vasco BeckerWeinberg, ‘Entitlement to Maritime Zones and their Delimitation: In the Doldrums of Uncertainty and Unpredictability’, in ibid., pp. 81 and 90; D. McRae, ‘The Applicable Law: The Geneva Convention on the Continental Shelf, the LOSC, and Customary International Law’, in ibid., pp. 103, 111 and 115; Lathrop, ‘The Provisional Equidistance Line’, pp. 210–211; Y. Tanaka, ‘The Mirage of Predictability in the Law of Maritime Delimitation: A Comparative Analysis of the Bangladesh v. Myanmar and Nicaragua v. Colombia Cases’ (2014) 113 The Journal of International Law and Diplomacy, pp. 14– 15.

59

For a comprehensive analysis of relevant circumstances, see Tanaka, Predictability and Flexibility, chapters 7 and 8.

251

Maritime Delimitation

5.1 Con

fi

guration of Coasts

It is beyond serious argument that geographical factors play an important role in maritime delimitation. In fact, every international judgment regarding maritime delimitation has taken them into account. Three factors merit highlighting in particular. The

first

factor concerns the distinction between opposite and adjacent coasts. Inter-

national courts and tribunals have attached great importance to the distinction when evaluating the appropriateness of the equidistance method.

60

A reason for this distinction

may be that the risks of inequity arising from the equidistance method are different between opposite and adjacent coasts.

61

Nonetheless, currently international courts and tribunals

tend to apply the equidistance method at the of the con

first stage of maritime delimitation, regardless

figuration of the coast. Hence, it appears that the distinction between opposite

and adjacent coasts is of limited value in the law of maritime delimitation. Second, it has been considered that the concavity or convexity of coasts constitutes a relevant circumstance. In particular, the ICJ, in the North Sea Continental Shelf cases, regarded the equidistance method as inequitable where coasts are concave on account of 62

the distorting effect produced by that method. judgment.

63

This view was echoed by the Libya/Malta

ITLOS, in the Bangladesh/Myanmar case, observed that Bangladesh’ s coast,

seen as a whole, is ‘manifestly concave’ and that the provisional equidistance line produces a cut-off effect on the maritime projection of Bangladesh.

64

It thus ruled that the concavity

of the coast of Bangladesh was a relevant circumstance which required an adjustment of the provisional equidistance line.

65

Similarly, in the Bangladesh/India Arbitration, the concav-

ity of the Bay of Bengal was considered as a relevant circumstance which required an adjustment of the provisional equidistance line.

66

In reality, however, it is often dif

ficult to

fine concavity and convexity of the coast in practice. The difficulty was highlighted in

de

the following paragraph of the Guinea/Guinea-Bissau award:

If the coasts of each country are examined separately, it can be seen that the Guinea-Bissau coastline is convex, when the Bijagos are taken into account, and that that of Guinea is concave. However, if they are considered together, it can be seen that the coastline of both countries is concave and this characteristic is accentuated if we consider the presence of Sierra 67

Leone further south.

60 61

The Anglo-French Continental Shelf Arbitration Award, 18 RIAA, p. 57, para. 97.

North Sea Continental Shelf (Federal Republic of Germany v Denmark) (Federal Republic of Germany v Netherlands), ICJ Reports 1969, p. 37, para. 58. This dictum was echoed in the Libya/Malta case. ICJ Reports 1985, p. 51, para. 70.

62

ICJ Reports 1969, p. 17, para. 8.

63

ICJ Reports 1985, p. 44, para. 56. See also p. 51, para. 70.

64

The Bangladesh/Myanmar case, ITLOS Reports 2012, p. 81, paras. 291 –293.

65

Ibid., p. 92, para. 297; p. 98, paras. 323–324.

66

Bay of Bengal Maritime Boundary Arbitration between Bangladesh and India (Bangladesh v India) (hereinafter the Bangladesh/India Arbitration), Award, 7 July 2014, paras. 407 –408, available at: https://pcacpa.org/en/cases/18/.

67

The Guinea/Guinea-Bissau Arbitration Award, (1986) 25 ILM, pp. 294–95, para. 103.

252

International Law Governing Jurisdictional Zones In fact, interpretation of the con

figuration of the coast may vary according to the scale of

the map or micro- or macrogeography, i.e. the question of whether coasts of third neighbouring States will be taken into account in appreciating the con concerned.

figuration of the coasts

68

The third factor is the general direction of the coast. While the determination of the general direction of the coast was at issue in the

69

Tunisia/Libya

and

70

Gulf of Maine cases,

the most dramatic impact of the general direction of the coast can be seen in the

Guinea-Bissau

case. In that case, the Arbitral Tribunal drew a line

Guinea/

grosso modo perpendicu-

lar to the general direction of the coastline joining Pointe des Almadies (Senegal) and Cape Schilling (Sierra Leone), arguing that the overall con

figuration of the West African coast-

line should be taken into account. The point to be noted is that, when specifying the general direction of the coast, the Arbitral Tribunal selected two points located in third States.

71

Nonetheless, with respect, the selection of the Tribunal is open to question. In fact, the line connecting Pointe des Almadies and Cape Schilling cuts almost all of the coast of GuineaBissau for nearly 350 kilometres and runs approximately 70 kilometres inside the latter’ s territory. As a consequence, the line selected by the Tribunal is clearly unfavourable to Guinea-Bissau and entails the risk of refashioning nature.

72

5.2 Proportionality

The concept of proportionality holds an important position in the case law as the concept has been taken into account in almost every judgment on maritime delimitation.

73

In the

context of maritime delimitation, the concept of proportionality was originally formulated by the Federal Republic of Germany in the

North Sea Continental Shelf

74

cases.

The Federal

Republic of Germany contended that each State concerned should receive a ‘ just and equitable share’

of the available continental shelf, proportionate to the length of its

coastline or sea frontage.

75

Although the ICJ rejected the idea of a ‘ just and equitable

share ’, it held:

[I]n the present case there are three States whose North Sea coastlines are in fact comparable in length and which, therefore, have been given broadly equal treatment by nature except that the con

68 71 72

fi

guration of one of the coastlines would, if the equidistance method is used, deny to

ICJ Reports 1982, p. 34, para. 17. The

Guinea/Guinea-Bissau

Ibid.,

Arbitration Award, (1986) 25

ILM,

AFDI,

ICJ Reports 1984, p. 338, para. 225.

pp. 297–298, paras. 109–111.

pp. 385– 386.

Maritime Boundary Delimitation,

pp. 291–318.

It is to be noted that as early as 1946, Sir Francis Vallat suggested an idea of proportionality in the context of a bay. Sir Francis Vallat, ‘The Continental Shelf’ (1946) 23

75

70

For a recent study on this subject, see Y. Tanaka, ‘The Disproportionality Test in the Law of Maritime Delimitation’, in Oude Elferink et al. (eds.),

74

p. 85, para. 120.

E. David, ‘La sentence arbitrale du 14 février 1985 sur la délimitation de la frontière maritime Guinée-Guinée Bissau’ (1985) 31

73

69

ICJ Reports 1969, p. 20, para. 15.

BYIL,

p. 336.

253 Maritime Delimitation one of these States treatment equal or comparable to that given the other two

...

What is

unacceptable in this instance is that a state should enjoy continental shelf rights considerably different from those of its neighbours merely because in the one case the coastline is roughly convex in form and in the other it is markedly concave, although those coastlines are comparable in length.

76

Thus, the Court did accept the concept of proportionality as a

final factor to be taken into

account in the course of the negotiations between the Parties concerned. In the words of the Court:

A

fi

nal factor to be taken account of is the element of a reasonable degree of proportionality

which a delimitation effected according to equitable principles ought to bring about between the extent of the continental shelf appertaining to the States concerned and the lengths of their respective coastlines

–

these being measured according to their general direction in order

to establish the necessary balance between States with straight, and those with markedly 77

concave or convex coasts, or to reduce very irregular coastlines to their truer proportions.

fied the recourse to proportionality: (i) adjacent coasts, (ii) existence of particular coastal con figurations, such The above statements suggest three geographical features which justi

as concavity and convexity, and (iii) quasi-equal length of the relevant coasts. In cases where concavity or convexity exists in adjacent coasts that are comparable in length, a distorting effect would be produced by the application of the equidistance method. For the Court, such a result was unacceptable.

78

As Higgins rightly observed, it was in this

particular geographical situation that proportionality came into play.

79

It must also be

noted that the Court regarded proportionality not as a distinct principle of delimitation, but as one of the factors – a ‘

final

’ factor – ensuring delimitation in accordance with equitable

principles. In light of the geographical limitations and the relatively minor position of proportionality, as Judge Oda observed, some doubts might be expressed whether the Court was of the view that the theory of proportionality would be universally applicable to maritime delimitations.

76 78 79

80

Emphasis added. Ibid., p. 50, para. 91.

77

Emphasis added. Ibid., p. 52, para. 98.

Ibid., p. 50, para. 91. R. Higgins, Problems and Process: International Law and How we Use it (Oxford, Clarendon Press, 1994), p. 229. See also R. Ida, ‘The Role of Proportionality in Maritime Delimitation Revisited: The Origin and Meaning of the Principle from the Early Decisions of the Court’, in N. Ando et al. (eds.), Liber Amicorum

Judge Shigeru Oda (The Hague, Kluwer, 2002), p. 1039; R. Kolb, Case Law on Equitable Maritime Delimitation: Digest and Commentaries (The Hague, Brill/Nijhoff 2003), pp. 257–258. 80

In the Libya/Malta case, Judge Oda argued: ‘The 1969 Judgment nowhere implied the possibility of generally applying the concept of proportionality in other cases, particularly in cases of delimitation between opposite States.’ Dissenting Opinion of Judge Oda in the Libya/Malta case, ICJ Reports 1985, pp. 134–135, para. 18. This view was echoed by Judges Valticos and Schwebel. Separate Opinion of Judge Valticos, ICJ Reports 1985, p. 110, para. 19; Dissenting Opinion of Judge Schwebel, ibid ., pp. 182–185. Bowett also took a similar view. D. W. Bowett, The Legal Régime of Islands in International Law (New York, Oceana, 1979), p. 164.

254 International Law Governing Jurisdictional Zones The above observations are con

fi

rmed by the

Anglo-French Continental Shelf

case. With

regard to the geographical circumstances which would justify recourse to proportionality, the Court of Arbitration stated:

In particular, this Court does not consider that the adoption in the

North Sea Continental Shelf

cases of the criterion of a reasonable degree of proportionality between the areas of continental shelf and the lengths of the coastlines means that this criterion is one for application in all cases. On the contrary, it was

situated on a concave coast

the particular geographical situation of three adjoining States

which gave relevance to that criterion in those cases.

81

In subsequent cases, however, international courts and tribunals began to resort to proportionality in completely different geographical situations. It thus appears that currently international courts and tribunals are ready to apply proportionality to every geographical situation. Before the

Black Sea

case, the concept of proportionality had not been applied consist-

ently in the jurisprudence concerning maritime delimitation. While, in some cases, the ICJ and Arbitral Tribunals applied proportionality as an ICJ did not do so. However, the ICJ, in the an

ex post facto

ex post facto

Black Sea case,

test, in other cases, the

formulated disproportionality as

test to verify the equitableness of the delimitation line at the third and

stage of maritime delimitation.

82

fi

nal

Here the disproportionality test was explicitly given an

fi

independent status as the third and

nal stage of maritime delimitation. In subsequent

cases, the disproportionality test was applied not only by the ICJ itself but also by ITLOS and an Annex VII Arbitral Tribunal. The principal elements of the disproportionality test speci

fi

ed by the ICJ in the

Black Sea

case can be summarised in four points.

First, ‘it is disproportion rather than any general principle of proportionality which is the relevant criterion or factor’.

83

Here the ICJ used the negative formula of

disproportionality.

Second, the continental shelf and EEZ allocations are not to be assigned in proportion to the length of respective coastlines. Disproportionality comes in to play an of equitableness of the delimitation line.

ex post facto

test

84

Third, the disproportionality test is not in itself a method of delimitation. In the words of the ICJ:

It is rather a means of checking whether the delimitation line arrived at by other means needs

fi

adjustment because of a signi

cant 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.

81 82

85

Emphasis added. The

Anglo-French Continental Shelf

ICJ Reports 2009, p. 103, para. 122.

Ibid.,

85

pp. 99–100, para. 110.

83

Ibid.,

Arbitration Award, 18

p. 129, para. 210.

84

RIAA,

Ibid.,

p. 57, para. 99.

para. 211.

255 Maritime Delimitation Fourth, the checking of the equitableness of the delimitation line by the disproportionality test can only be approximate.

Colombia case

87

86

This point was echoed by the ICJ in the Nicaragua/ 88

and the Costa Rica/Nicaragua case.

The Arbitral Tribunal in the Bangla-

desh/India case also stressed that ‘proportionality is not a mathematical exercise that results in the attribution of maritime areas as a function of the length of the coasts of the Parties or other such ratio calculations ’.

89

Nevertheless, the disproportionality test is not free from

ficulty. In this regard, four obstacles must be noted. The first problem is the lack of any objective criterion for calculating the coastal lengths and surfaces. In order to calculate the lengths of relevant coasts, it is necessary to de fine the coasts to be evaluated. However, in many, if not most, cases the definition of relevant dif

90

coasts is itself a disputable point; international courts and tribunals have failed to come up with any objective criterion. Nor is there any criterion for calculating the lengths of the relevant coasts. That calculation may be complicated by the presence of islands. It is also

ficult to define relevant areas, especially where legal titles of third States may be at issue. The second dif ficulty pertains to the lack of an objective criterion for evaluating the

dif

reasonable relation between coastal lengths and the maritime areas attributed to the Parties. In all cases, the international courts concluded that there was no disproportion between the ratio of coastal lengths and the ratio of maritime areas appertaining to the Parties. Nonetheless, it is impossible, or at least highly dif

ficult,

to extrapolate any objective

criterion for judging whether there is reasonable relation between the coastal length and maritime area appertaining to each party.

91

In the Nicaragua v Colombia case, for instance,

the Court considered that there was no disproportionality between the ratio for the coastal lengths, which was approximately 1:8.2 in Nicaragua ’s favour, and the ratio of the relevant 92

area, approximately 1:3.44 in Nicaragua ’s favour.

Given that the ratio of coastal length is

more than twice as great as that of maritime areas, however, some doubts can be expressed on whether the ratio in question is truly proportionate.

93

Furthermore, in some cases, the

ICJ ruled that the disproportionality test had been met, without presenting any speci

figures

fic

of the relevant coastal lengths and maritime areas accorded to each party. The

disproportionality test without calculation of the ratio of the coastal length and the maritime area is merely legal impressionism. Related to this, the striking fact is that, to

86 87 88

Ibid., p. 100, para. 111. Territorial and Maritime Dispute (Nicaragua v Colombia), ICJ Reports 2012, p. 716, para. 242.

fi

Maritime Delimitation in the Caribbean Sea and the Paci c Ocean (Costa Rica v Nicaragua) , ICJ Reports 2018 (not yet reported), para. 164.

89 90

The Bangladesh/India Arbitration Award, para. 492. Examples include: the Gulf of Maine , St. Pierre and Miquelon, Eritrea/Yemen , Barbados/Trinidad and

Tobago, Guyana/Suriname, Nicaragua/Colombia , Bangladesh/Myanmar and Bangladesh/India cases. 91

For statistics on the proportionality test, see S. Fietta and R. Cleverly, A Practitioner’s Guide to Maritime

Boundary Delimitation (Oxford University Press, 2016), pp. 605–606; A. Pellet and B. Samson, ‘La délimitation des espaces marins’, in M. Forteau and J.-M. Thouvenin (eds.), Traité de droit international de la

mer (Paris, Pedone, 2017), p. 608. 92 93

The Nicaragua/Colombia case, p. 716, para. 243. M. D. Evans, ‘Maritime Boundary Delimitation: Whatever Next?’, in J. Barrett and R. Barnes (eds.), Law of the

Sea: UNCLOS as a Living Treaty (London, British Institute of International and Comparative Law, 2016), p. 62.

256

International Law Governing Jurisdictional Zones date, there is no single case where courts and tribunals admitted the existence of disproportion between the ratio of coastal lengths and the ratio for maritime areas appertaining to the Parties. This can hardly be a mere coincidence. Here it is dif

ficult to resist the temptation to

submit that, at the second stage of maritime delimitation, the maritime boundary had already been drawn in such a way as to pass the disproportionality test. The third obstacle is that since the number of lines capable of producing the same proportion is limitless, proportionality will not determine a concrete delimitation line.

94

Accordingly, it cannot objectively constrain the discretion of judges in the adjustment of the provisional equidistance line. It is open to debate whether the disproportionality test can contribute to enhancing the transparency and objectiveness of the process of maritime delimitation. Finally, it may have to be accepted that the concept of proportionality necessarily includes some aspects of apportionment, although the ICJ clearly distinguished between delimitation and apportionment.

95

In this regard, the concept of proportionality contradicts

the rejection of the idea of apportionment in maritime delimitation.

5.3 Baselines

The selection of baseline or base points is fundamental to draw a provisional equidistance line. In this regard, one question to arise is whether the same baselines or base points for measuring limits of maritime zones should be used for the purpose of maritime delimitations.

96

Article 15 of the LOSC as well as Article 6 of the Geneva Convention on the

Continental Shelf seem to suggest that when applying the equidistance method to maritime delimitations, an equidistance line should be, in principle, drawn from the baselines of the territorial sea. Nonetheless, the practice of international courts appears to demonstrate that where the use of the baseline or base points established by the Parties may produce an inequitable result, international courts and tribunals may select, within their compass, relevant base points for the purpose of maritime delimitations. Four cases merit particular attention. First, in the Libya/Malta case, the validity of straight baselines for Malta was at issue. Under the Territorial Waters and Contiguous Zone Act, adopted on 7 December 1971, Malta established straight baselines. Although the ICJ refrained from expressing any opinion on the legality of the Maltese baselines, the Court considered it equitable not to take account of Fil

fla in the calculation. The Court thus pronounced that

‘the baselines as determined by

coastal States are not per se identical with the points chosen on a coast to make it possible to calculate the area of the continental shelf appertaining to that State’ .

94

97

Dissenting Opinion of Judge Oda, ICJ Reports 1982, p. 258, para. 162; H. Thirlway, ‘The Law and Procedure of the International Court of Justice, Part Five’ (1994) 64 BYIL, p. 42.

95 96

The North Sea Continental Shelf cases, ICJ Reports 1969, p. 22, para. 18. On this issue, see P. Weil, ‘A propos de la double fonction des lignes et points de base dans le droit de la mer’, in Écrits de droit international (Paris, PUF, 2000), pp. 279–299.

97

ICJ Reports 1985, p. 48, para. 64.

257 Maritime Delimitation Second, in the Eritrea/Yemen case (the Second Phase), the validity of Eritrea’s baseline was discussed. In Eritrean domestic law, enacted by Ethiopia in 1953, its territorial sea is

fined

de

as extending from the extremity of the seaboard at maximum annual high tide.

Nevertheless, the Arbitral Tribunal took the view that the median line boundary was to be measured from the low-water line in conformity with Article 5 of the LOSC because both Parties had agreed that the Tribunal was to take into account the provisions of that Convention. Further to this, Eritrea integrated a marine feature called the ‘Negileh Rock’ into its straight-baselines system. However, the Arbitral Tribunal did not admit the use of this marine feature as a base point and decided that the western base points to be employed on this part of the Eritrean coast should be on the low-water line of certain of the outer Dahlak islets, Mojeidi, and an unnamed islet east of Dahret Segala.

98

Third, in the Qatar/Bahrain case, Bahrain contended that, as a multiple-island State characterised by a cluster of islands off the coast of its main islands, it was entitled to draw a line connecting the outermost islands and low-tide elevations. Nonetheless, the Court ruled that Bahrain was not entitled to apply the method of straight baselines.

99

Fourth, and importantly, the ICJ, in the Black Sea case, clearly distinguished the baseline for measuring the seaward breadth of marine spaces from the baseline for the purpose of maritime delimitations, by stating:

The Court observes that the issue of determining the baseline for the purpose of measuring the breadth of the continental shelf and the exclusive economic zone and the issue of identifying base points for drawing an equidistance/median line for the purpose of delimiting the continental shelf and the exclusive economic zone between adjacent/opposite States are two 100

different issues.

The judicial examination of baselines or base points in the context of maritime delimitations may contribute to prevent an inequitable result arising from the liberal application of straight baselines. In State practice, a question arises in cases where the validity of straight baselines established by one party is disputed by the other party. In these cases, some treaties gave only half (or partial) effect to the contested straight baselines. A case in point is the 1984 Agreement between Denmark and Sweden establishing a single maritime boundary. Both countries established straight baselines, and, as a general rule, their straight baselines were used to compute the delimitation line. In the Baltic, however, Denmark objected to Sweden ’s basepoint of Falsterborev. In the Southern Kattegat, Sweden objected to a Danish baseline connecting Hesselo with Sj

98 99

œ

lland. In both instances, the Parties agreed to split in

The Eritrea/Yemen Arbitration Award (Second Phase), 22 RIAA, pp. 366–368, paras. 133–146. ICJ Reports 2001, pp. 103–104, paras. 210–215. See also Joint Dissenting Opinion of Judges Bedjaoui, Ranjeva and Koroma, ibid ., p. 202, paras. 183 and 185.

100

ICJ Reports 2009, p. 108, para. 137. See also p. 101, para. 117.

258

International Law Governing Jurisdictional Zones half the area generated by those baselines.

101

The half-effect solution concerning straight

baselines was also adopted in the 1975 Agreement between Italy and Yugoslavia 103

1977 Maritime Boundary Agreement between the United States and Cuba.

102

and the

The half or

partial effect given to straight baselines seems to offer a solution when the validity of these baselines is disputed.

5.4 Presence of Islands

There is no serious doubt that the presence of islands may constitute a relevant circumstance in maritime delimitation. However, State practice is so diverse that it is dif

ficult to

specify a general rule with respect to the legal effect given to islands. Thus, international courts and tribunals are to decide the effect given to islands within the framework of equitable principles. In broad terms, four modes of effect given to islands can be identi

fied

in case law.

first mode is to give full effect to an island. In the Qatar/Bahrain case, for instance,

The

the ICJ gave full effect to the Hawar Islands and Janan Island when drawing an equidistance boundary line.

104

In the

Nicaragua/Honduras

case, Honduran islands in the

Caribbean Sea – Bobel Cay, Port Royal Cay, Savanna Cay and South Cay – and Nicaragua’ s Edinburgh Cay were given full effect. that the Arbitral Tribunal, in the

105

In relation to this, it is of particular interest to note

Eritrea/Yemen case (Second Phase), presented the ‘ integrity

test ’ as a criterion for determining the effect given to islands. According to this approach, where relevant islands constitute an integral part of a mainland coast, full effect may be given to those islands. This criterion was expressed in relation to the Dahlaks, a tightly knit group of islands and islets belonging to Eritrea. The Arbitral Tribunal gave full effect to the Dahlaks because it ‘ is a typical example of a group of islands that forms an integral part of

figuration .

the general coastal con

’

106

For the same reason, full effect was given to the

Yemeni islands of Kamaran, Uqban and Kutama.

107

To a certain extent, the integrity test

would seem to present a useful criterion for determining the effect to be given to islands. The second mode is to give no effect to an island. For instance, the ICJ, in the

Libya

Tunisia/

case, neglected the island of Jerba, which is separated from the mainland by a very

narrow strait, in drawing a boundary.

108

In the

Guinea/Guinea-Bissau

case, the Arbitral

Tribunal gave no effect to coastal islands, the Bijagos Islands and Southern Islands. In the

Qatar/Bahrain delimitation

case, the Court gave almost no effect to Qit’ at Jaradah, by drawing a

line passing

immediately

to

the east

of Qit ’at

Jaradah.

109

Similarly,

the

Court decided that Fasht al Jarim should have no effect on the boundary line in the

101

(Dordrecht, Nijhoff, 1993), p. 1935 (hereinafter 102 104 106 107 109

International Maritime Boundaries, International Maritime Boundaries).

Report by E. Franckx in J. I. Charney and L. M. Alexander (eds.),

Report by T. Scovazzi and G. Francalanci, ICJ Reports 2001, p. 109, para. 222.

Eritrea/Yemen Arbitration Ibid. , p. 369, paras. 150–151. The

ibid.,

105

p. 1642.

Report by R. W. Smith,

ICJ Reports 2007, p. 752, paras. 304 –305.

Award (Second Phase), 22 108

103

RIAA,

p. 367, para. 139.

ICJ Reports 1982, p. 85, para. 120.

ICJ Reports 2001, pp. 104 –109, para. 219.

ibid.,

vol. II

vol. I, p. 419.

259 Maritime Delimitation northern sector.

110

By referring to the integrity text expressed in the 1999

award, the ICJ, in the Ukraine.

Black Sea

Eritrea/Yemen

case, gave no effect to Serpents’ Island belonging to

111

The third mode involves the enclave solution. This method was adopted by the Court of Arbitration in the

Anglo-French Continental Shelf

case with regard to the Channel Islands.

The Channel Islands, which are under British sovereignty, lie off the French coasts of Normandy and Brittany. The Court of Arbitration took the view that giving full effect to the Channel Islands would constitute a circumstance that would entail inequity.

112

Thus the

Court adopted a twofold solution. First, as the primary boundary, the Court drew a median line between the mainlands of the two States. Second, it created a 12-mile enclave to the north and west of the Channel Islands. be found in the delimitation of lakes, delimitation

before

113

114

While a precedent for the enclave solution could

there was no precedent in the context of maritime

this award. It seems, therefore, that the enclave solution is a novel 115

creation of the Court of Arbitration.

Subsequently, an enclave with a 12-nautical-mile arc of the territorial sea was adopted by the ICJ. In the

Black Sea

case, the Court attributed only a 12-nautical-mile arc of the 116

territorial sea to Serpents ’ Island.

Although the Court did not decide the legal status of

Serpents’ Island, the Court’ s solution seems to produce the same effect as if Serpents’ Island were treated as a rock. Likewise, the Court, in the 2007

Nicaragua/Honduras case, ruled that

the Honduran islands of Bobel Cay, Savanna Cay, Port Royal Cay and South Cay should be accorded a territorial sea of 12 nautical miles.

117

It thus traced the 12-nautical-mile arc of

the territorial sea around the south of Bobel Cay until it reached the median line in the overlapping territorial seas of Bobel Cay, Port Royal Cay and South Cay (Honduras) and Edinburgh Cay (Nicaragua). Also the Court traced the arc of the outer limit of the 12nautical-mile territorial sea of South Cay round to the north until it connected with the bisector line.

118

It would seem to follow that the Court’ s solution produced the same effect

that these cays are treated as rocks under Article 121(3) of the LOSC. In the 2012

Colombia

Nicaragua/

case, the effect given to Quitasueño and Serrana was at issue. Quitasueño is a

large bank approximately 57 kilometres long and 20 kilometres wide. Among multiple marine features at Quitasueño, only one feature named QS 32, which is barely one square metre in area, is above water at high tide only by some 0.7 metres.

119

The Court regarded

Quitasueño as a rock under Article 121(3) of the LOSC and established a 12-nautical-mile envelope

110 111 112 113 114

Ibid.,

of

arcs

Quitasueño.

Likewise

it

established

only

118

12-nautical-mile

pp. 114– 115, paras. 247–248.

Anglo-French Continental Shelf Ibid., pp. 94–95, paras. 201–202. The

L. Ca

fl isch,

Arbitration Award, 18

RIAA,

p. 93, para. 196.

‘Règles générales du droit des cours d ’eau internationaux’ (1989) 219

The Regime of Islands in International Law

RCADI ,

pp. 99– 100; H. W.

(Dordrecht, Nijhoff, 1990), pp. 245–247.

D. W. Bowett, ‘The Arbitration between the United Kingdom and France Concerning the Continental Shelf Boundary in the English Channel and South-Western Approaches’ (1978) 44

116

a

ICJ Reports 2009, pp. 109 –110, para. 149. See also pp. 122–123, para. 187.

Jayewardene, 115

around

ICJ Reports 2009, p. 123, para. 188.

Ibid. ,

p. 759, para. 320.

119

117

BYIL,

ICJ Reports 2007, p. 751, para. 302.

ICJ Reports 2012, para. 24, para. 37 and para. 202.

p. 8.

260 International Law Governing Jurisdictional Zones envelope of arcs measured from Serrana Cay and other cays in its vicinity in light of its small size, remoteness and other characteristics.

120

The ICJ jurisprudence seems to suggest

that all maritime features which remain above water at high tide may be attributed at least 12 nautical miles of the territorial sea, regardless of their legal status. The fourth mode is to give only partial effect, such as half effect, to islands in drawing a maritime boundary. In the Anglo-French Continental Shelf case, the Court of Arbitration took the view that the projection westwards of the Scilly Isles constituted a special circumstance.

121

The Court thus determined to give the Scilly Isles half effect. The distance

between the Scilly Isles and the mainland of the United Kingdom is twice that separating Ushant from the French mainland. For the Court, this was an indication of the suitability of the half-effect method. Accordingly, the Court drew,

first,

an equidistance line without

using offshore islands as a base point and, next, an equidistance line using them as a base point. A boundary line was then drawn midway between those two equidistance lines.

122

The half-effect solution was also adopted in the Tunisia/Libya judgment. A line drawn from the most westerly point of the Gulf of Gabes along the seaward coast of the Kerkennah Islands would run at a bearing of approximately 62 considered that the line of 62

±

±

to the meridian. However, the Court

to the meridian, which runs parallel to the coastline of the

islands, would give excessive weight to the Kerkennahs. For that reason, the Court decided to attribute half effect to the Kerkennah Islands. It did so by drawing a line bisecting the

±

angle between the line of the Tunisian coast (42 ) and the tangent of the seaward coast of

±

the Kerkennah Islands (62 ). Consequently, a line of 52 boundary of the continental shelf in this area.

±

to the meridian was to be the

123

In the Gulf of Maine case, the Chamber of the ICJ determined to give the Canadian territory of Seal Island half effect. Speci

fically, the Chamber drew Seal Island back to half

its real distance from the mainland. The distance between Seal Island and Chebogue Point in Nova Scotia is 14,234 metres. Dividing this distance by two, a position of 7,117 metres from Chebogue Point would represent a notional half-effect position for Seal Island.

124

More recently, only half effect was given to the Corn Islands in the Costa Rica/Nicaragua case.

125

Overall, as ITLOS pointedly observed, ‘ neither case law nor State practice indicates that there is a general rule concerning the effect to be given to islands in maritime delimitation ’.

120 121 122 123

126

According to the Tribunal,

Ibid. , pp. 713–715, para. 238. The Anglo-French Continental Shelf Arbitration Award, 18 RIAA, p. 114, para. 244.

Ibid. , p. 117, para. 251. ICJ Reports 1982, pp. 88– 89, paras. 128–129. Judge Oda gave his misgivings about the half-effect solution since its boundary line relies solely on the Tunisian coast. Dissenting Opinion of Judge Oda, ICJ Reports 1982, pp. 268– 269, para. 179.

124 125

Technical Report of the Gulf of Maine case, ICJ Reports 1984, p. 350, para. 13.

fi

Maritime Delimitation in the Caribbean Sea and the Paci c Ocean (Costa Rica v Nicaragua), Judgment, ICJ Reports 2018 (not yet reported), para. 154.

126

The Bangladesh/Myanmar case, ITLOS Reports 2012, p. 46, para. 147.

261

Maritime Delimitation

[T]he effect to be given to an island in the delimitation of the maritime boundary in the exclusive economic zone and the continental shelf depends on the geographic realities and the

fi

circumstances of the speci

fi

and requires speci

c case. There is no general rule in this respect. Each case is unique

c treatment, the ultimate goal being to reach a solution that is equitable.

127

5.5 Geological and Geomorphological Factors

While geology relates to the composition and structure of the seabed, geomorphology concerns its shape and form. In general, international courts and tribunals attribute limited importance to geological and geomorphological factors. A reason is that currently coastal States may claim the continental shelf as well as an EEZ/FZ of 200 miles, regardless of the geological or geomorphological characteristics of the area. As a result, geological and geomorphological factors become irrelevant in the process of delimitation. With respect to single maritime boundaries, the application of neutral criteria and geometrical methods will also contribute to disregarding geological and geomorphological factors. State practice also shows that in the majority of agreements, the characteristics of the seabed did not have a signi

fi

cant effect on the location of maritime boundaries. Even when

those factors are considered, they usually play only a secondary role, either for

fi

xing

terminal points of the boundary or together with other elements including economic and navigational interests.

128

5.6 Presence of Third States

In the context of maritime delimitation, the existence of third States creates a dif question

relating

to

the

approaches can be identi According to the

fi

principle

fi

of

res inter alios acta.

In

this

regard,

two

fi

cult

possible

ed in case law.

rst approach, international courts draw a delimitation line in an area

where legal titles of third States may be involved. The Court of Arbitration, in the

French Continental Shelf

Anglo-

case, took this approach. In that case, a question was raised with

regard to a possible meeting of the continental shelf boundary between the parties with the boundary between Ireland and the United Kingdom. The United Kingdom questioned the Court’s

power

to

delimit

the

Anglo-French

continental

shelf

boundary

westward

of

a

notional meeting point with the Anglo-Irish boundary. However, the Court of Arbitration did not admit this view on the basis of the principle of

Nicaragua/Colombia

127 128

Ibid.,

The

129

In the

case, the ICJ drew two horizontal lines in the northern and southern

p. 86, para. 317.

K. Highet, ‘The Use of Geophysical Factors in the Delimitation of Maritime Boundaries’, in

Maritime Boundaries, 129

res inter alios acta.

vol. I, p. 195.

Anglo-French Continental Shelf

Arbitration Award, 18

RIAA,

p. 27, para. 28.

International

262 International Law Governing Jurisdictional Zones 130

parts of the delimitation area,

even though these two lines would inevitably affect the

existing maritime boundaries between Colombia and Panama, between Colombia and Costa Rica and between Colombia and Jamaica. In this regard, the Court took the position that the judgment in the present case addressed only Nicaragua ’s rights as against Colombia and vice versa and was, therefore, without prejudice to any claim of a third State or any claim which either Party may have against a third State.

131

A second approach is to cut off the area where claims of third States may be involved from the scope of the jurisdiction of the judgment. According to this approach, international courts simply stop the delimitation line at the point where a third State might become involved. The cut-off approach was applied in the

Tunisia/Libya, Libya/Malta,

Eritrea/Yemen , Qatar/ Bahrain, Barbados/Trinidad and Tobago, Cameroon/Nigeria, Nicaragua/Honduras seen in the

and

Black Sea

cases. The most dramatic example of this approach can be

Libya/Malta case. In that case, the ICJ limited the scope of its judgment so as not

to infringe upon the rights of Italy in the region. Speci

fically, the Court confined itself to

areas where no claims by Italy existed, namely, to the area between the meridians 13 E and 15

±

10’ E.

132

±

50’

Nonetheless, with respect, the Court’ s approach seems to be highly

controversial in the sense that the extent of the Court ’ s jurisdiction is determined by the claim of the third State, namely Italy.

133

The question associated with the legal rights of third States is concerned with the legal effect of Article 59 of the Statute of the ICJ. In this regard, the ICJ in the

Cameroon/Nigeria

case (Merits), made an important pronouncement:

[I]n particular in the case of maritime delimitations where the maritime areas of several States are involved, the protection afforded by Article 59 of the Statute may not always be suf In the present case, Article 59 may not suf Príncipe from the effects follows that, in

fi

–

fi

fi

cient.

ciently protect Equatorial Guinea or São Tomé and

even if only indirect

–

of a judgment affecting their legal rights.

..

It

xing the maritime boundary between Cameroon and Nigeria, the Court must

ensure that it does not adopt any position which might affect the rights of Equatorial Guinea and São Tomé and Príncipe.

134

In reality, it is undeniable that the delimitation line drawn by the Court might affect the legal rights and interests of third States, creating a presumption of the boundary regardless of the formalistic protection of Article 59.

130 131

The

Nicaragua/Colombia

135

finality

of the

In this sense, it seems

case, ICJ Reports 2012, para. 236 and para. 251(4).

Ibid., para. 228. However, the majority opinion was questioned by Judge the Nicaragua/Colombia case. Ibid., p. 750, para. 15. See also Declaration

Xue. Declaration of Judge Xue in of Judge ad hoc Cot.

Ibid.,

p. 769,

para. 10. 132 133 134 135

The

Libya/Malta

case, ICJ Reports 1985, pp. 25–26, paras. 21– 22.

Dissenting Opinion of Judge Mosler,

ibid., pp. 116–117; Dissenting Opinion of Judge Schwebel, ibid., p. 177.

ICJ Reports 2002, p. 421, para. 238. Argument by Professor George Abi-Saab, Counsel of Nigeria, Verbatim Record, CR 2002/23, p. 18, paras. 3 –4.

263

Maritime Delimitation that, as the Court stated, Article 59 is insuf

ficient

to protect the rights of third States in

maritime delimitations. In applying the cut-off approach, how is it possible to determine such an area where legal titles of third States may be involved? In response to this question, the prima facie legal credibility test, which was contended by Nigeria in the Cameroon/Nigeria case, is of particular interest. According to this test, the Court veri

fies the credibility of potential

rights of third States on the basis of the equidistance method.

136

If one applies the legal

credibility test on the basis of an objective method, i.e. the equidistance method, it may be possible to a certain extent to avoid the danger of an excessive claim by a third State. Considering that international courts and tribunals tend to draw an equidistance line at the

first

stage of maritime delimitation, the credibility test sounds persuasive. On the

other hand, the application of the credibility test becomes complex in a situation where islands of third States exist. Furthermore, according to the credibility test, the spatial extent of the Court ’ s jurisdiction may be highly limited in a situation where several third 137

States coexist in close proximity in the same region.

6 CONSIDERATION OF RELEVANT CIRCUMSTANCES (2): NON-GEOGRAPHICAL FACTORS

6.1 Economic Factors Economic factors may include the existence of natural resources, such as oil, gas and

fish,

and socio-economic factors, such as States’ economic dependency on natural resources and national economic wealth. In international adjudication, States often invoke these two types of economic factors jointly, for they are interrelated. In a general way the in

fluence of

economic factors remains modest in jurisprudence relating to maritime delimitation. The ICJ, in the Cameroon/Nigeria case, stated:

[I]t follows from the jurisprudence that, although the existence of an express or tacit agreement between the parties on the siting of their respective oil concessions may indicate a consensus on the maritime areas to which they are entitled, oil concessions and oil wells are not in themselves to be considered as relevant circumstances justifying the adjustment or shifting of the provisional delimitation line. Only if they are based on express or tacit agreement between 138

the parties may they be taken into account.

136 137

Ibid. , pp. 22–23, para. 21.

fl

Y. Tanaka, ‘Re ections on Maritime Delimitation in the Cameroon/Nigeria case’ (2004) 53 ICLQ, pp. 401 –402.

138

ICJ Reports 2002, p. 447, para. 304.

264 International Law Governing Jurisdictional Zones 139

In fact, apart from the Greenland/Jan Mayen case,

no judgment concerning the delimi-

tation of the continental shelf or single maritime boundaries has taken the presence of natural resources into account, at least at the operational stage. In some cases, economic factors re-entered at the veri

fication

stage as a test of the

equitableness of the boundaries drawn. In the Gulf of Maine case, for instance, the Chamber of the ICJ in effect veri

fied

whether the result would be ‘radically inequitable’ or entail

‘ catastrophic repercussions for the livelihood and economic well-being of the population of 140

the countries concerned’ , and came up with negative answers.

The Court of Arbitration

in the St. Pierre and Miquelon case applied the ‘radically inequitable’ test which was formulated by the Gulf of Maine judgment, and concluded that the proposed delimitation

fishing

line would not have a radical impact on existing

patterns in the area.

141

In any

event, these elements played merely a secondary role in testing whether the established boundaries produced ‘radically inequitable ’ results. In common with the jurisprudence in this

field, the actual State practice appears to show

that normally economic factors have not directly affected the location of boundaries of either continental shelves or single maritime boundaries. Instead, in some agreements, States have resolved economic questions

flexibly by inserting common deposit clauses or

by establishing regimes of joint development. The ‘common deposit clause’ or ‘mineral deposit clause ’ relates to transboundary mineral resources, including petroleum. When a party exploits a single petroleum reservoir, such exploitation will interfere with the neighbouring State ’ s right to the petroleum in the reservoir by causing it to

flow from one side of the boundary to the other. The

‘common

deposit clause’ or ‘ mineral deposit clause’ seeks to avoid such situations. The validity of

firmed

common mineral deposit clauses was con (Second Phase).

in the 1999 Eritrea/Yemen Arbitration

142

While the concept of ‘ joint development’

has not been uniformly understood, this

concept may be considered as an intergovernmental agreement that aims to establish joint exploration and/or exploitation of living or non-living resources in a designated zone.

143

Joint development schemes may be provisional or permanent, and can be divided into two categories. The

first

category involves areas where maritime delimitation lines are being

established. In such areas, a joint development zone is to be established, straddling a delimitation line. Concerning mineral resources, a typical example of a joint development 144

zone may be the 1981 Agreement between Norway and Iceland.

139

The joint development

In the Greenland/Jan Mayen case, the ICJ divided southernmost zone 1 into two parts of equal extent, so as to allow both parties to enjoy equitable access to the capelin stock. ICJ Reports 1993, pp. 79– 81, para. 92.

140 141 142 143

ICJ Reports 1984, pp. 342 –344, paras. 237–241. The St. Pierre and Miquelon Arbitration Award, (1992) 31 ILM, p. 1173, paras. 84–85. The Eritrea/Yemen Arbitration Award (Second Phase), 22 RIAA, p. 356, para. 86. Generally on this issue, see V. Becker-Weinberg, Joint Development of Hydrocarbon Deposits in the Law of the Sea (Heidelberg, Springer, 2014); M. Miyoshi, ‘The Joint Development of Offshore Oil and Gas in

fing, vol. 2 (Durham, International Boundaries

Relation to Maritime Boundary Delimitation ’ Maritime Brie Research Unit, 1999). 144

International Maritime Boundaries, vol. II, pp. 1762 et seq. Entered into force 2 June 1982.

265

Maritime Delimitation zone straddling the single maritime boundary between the parties was established on the basis of the recommendation of the Conciliation Commission in 1981.

fisheries

145

Concerning

resources, the 1978 Agreement on the Delimitation of Marine and Submarine

Areas and Maritime Cooperation between the Dominican Republic and Colombia estab-

fic

lished a common scienti boundary.

research and

fishing

zone, bisected by a single maritime

146

The second category of joint development schemes concerns areas where delimitation was not or could not be effected. An illustrative example is the joint development zone created in the 1974 Agreement between Japan and South Korea. In the East China Sea, the claims of the parties over the continental shelf overlapped considerably. In search of a breakthrough, both parties agreed to establish a joint development zone in the overlapping area.

147

Other examples of treaties which established the second category of a joint

development zone include the 1974 Agreement between Saudi Arabia and Sudan,

148

the

1979 Memorandum of Understanding (MOU) between Malaysia and Thailand in the Gulf of Thailand, the 1992 MOU between Malaysia and Vietnam, between Colombia and Jamaica.

149

and the 1993 Agreement

150

6.2 Conduct of the Parties

Normally the in

fluence of the conduct of the parties is very limited in jurisprudence and

State practice relating to maritime delimitation. So far the only exception is the Tunisia/

Libya judgment, which clearly took such conduct into account. In that case, the ICJ attached ± great importance to a de facto line drawn from Ras Ajdir at an angle of some 26

east of

north, which resulted from concessions for the offshore exploration and exploitation of oil and gas granted by both parties. delimitation in the

first

151

It was the de facto line which effectively governed the

segment to be delimited. The Tunisia/Libya judgment seems to

suggest that only when the conduct of the parties can prove the existence of a modus vivendi or a de facto line, or an agreement to apply a particular method, may such facts be taken into account by the courts. Nonetheless, the Court ’ s approach entails the risk of introducing the idea of effectiveness or occupation into the law of maritime delimitation. The rights over the continental shelf are attributed to the coastal State ipso facto and ab

initio . Accordingly, the idea of effectiveness would be incompatible with the fundamental character of legal rights over the continental shelf. Furthermore, by giving excessive weight to the conduct of the parties, unilateral acts of occupation of the continental shelf may be encouraged. In view of these questions, it appears that the Tunisia/Libya judgment cannot have general application in the law of maritime delimitation.

145 146 147 148 149 150

(1981) 20 ILM, pp. 797 et seq .

International Maritime Boundaries , vol. I, pp. 488 et seq . Entered into force 2 February 1979. Ibid., pp. 1073 et seq . Entered into force 22 June 1978. 952 UNTS, pp. 198 et seq. Entered into force in 1974.

International Maritime Boundaries , vol. III, pp. 2341 et seq . Entered into force 5 June 1992. Ibid., pp. 2200 et seq . Entered into force 14 March 1994.

151

ICJ Reports 1982, p. 71, para. 96.

266

International Law Governing Jurisdictional Zones

6.3 Historic Title and Historic Rights

According to the Annex VII Arbitration Tribunal in the 2016 South China Sea Arbitration (Merits), ‘ historic title’ refers to historic sovereignty over land or maritime areas. While ‘ historic rights’ may include sovereignty but may equally include more limited rights, such

as

fishing

rights or rights of access, that falls well short of a claim of sovereignty.

152

Concerning the delimitation of the territorial sea, both Article 12 of the TSC and Article 15 of the LOSC explicitly include historic titles in a category of special circumstances. As regards the delimitation of the continental shelf and the EEZ, however, no mention was made of such titles in Articles 74(1) and 83(1) of the LOSC. An issue which thus arises is whether historic titles may be regarded as a relevant circumstance in the context of the continental shelf or EEZ delimitation. The ICJ, in the Tunisia/Libya case, regarded historic rights as relevant, stating that ‘ Historic titles must enjoy respect and be preserved as they have always been by long 153

usage ’ .

At the operational stage of the delimitation, however, the Court did not consider

it necessary to decide on the validity of Tunisian historic rights with regard to Libya because the line indicated by the Court left Tunisia in full possession of the area covered by such rights.

154

itional

The Arbitral Tribunal, in the Eritrea/Yemen Arbitration, did not take the trad-

fishing regime into account on the grounds that free access to fishing, which is the

essence of that regime, was not dependent on maritime delimitation. shows another possible solution, separating traditional

fishing

155

Thus the Tribunal

regimes from maritime

delimitations. If, as the Tribunal indicated, free access to natural resources is to be the real interest which underlies historic rights, such interest could be protected by an agreement ensuring such access independently of maritime delimitation. In State practice, it is notable that the 1976 Agreement between India and Sri Lanka resolved the question of historic rights, without adjusting the delimitation line by instituting a transitory period for

fisheries and attributing

a certain amount of

fish to the other

State involved. This solution seems to provide practical guidance in solving the question.

6.4 Security Interests

In the Libya/Malta case, the ICJ regarded security factors as a relevant circumstance. At the operational stage, however, security interests did not affect the location of the continental shelf boundary in this judgment because the delimitation line drawn by the Court was ‘not so near to the coast of either Party as to make questions of security a particular consideration in the present case ’. cases.

152 153 155 156 157

157

156

The same applied to the Greenland/Jan Mayen and Black Sea

It is interesting to note that the Court considered security interests to be a matter of

The South China Sea Arbitration Award (Merits), para. 225. See also Chapter 2, section 2.4 of this book. ICJ Reports 1982, p. 73, para. 100. See also p. 75, para. 102.

154

Ibid., p. 86, para. 121.

The Eritrea/Yemen Arbitration Award (Second Phase), 22 RIAA, pp. 359– 361, paras. 103–110. ICJ Reports 1985, p. 42, para. 51. ICJ Reports 1993, pp. 74– 75, para. 81; ICJ Reports 2009, p. 128, para. 204.

267

Maritime Delimitation distance. Yet so far there is no predictable standard on this matter. Like case law, it can be observed that the direct in

fluence

of security factors remains somewhat unclear in State

practice.

6.5 Navigational Factors

In the Eritrea/Yemen Arbitration (Second Phase), the Arbitral Tribunal took navigational interests into account in several parts of the delimitation line dividing the territorial seas.

158

In addition to this, the Arbitral Tribunal, in the Guyana/Suriname case, explicitly regarded navigation as a special circumstance in the delimitation of the territorial seas under Article 15 of the LOSC.

159

The Croatia/Slovenia case provides a unique precedent in that the

Arbitral Tribunal created a junction area to secure Slovenia ’s interest of navigation. Apart from these cases, the in

160

fluence of navigational factors usually remains modest. State

practice seems to demonstrate more concern about protection of navigation in agreements delimiting territorial seas than in agreements concerning the continental shelf or single maritime boundaries.

6.6 Environmental Factors

While protection of the marine environment is a matter of important concern, the existing case law seems to pay little attention to environmental concern in the context of maritime delimitations. In the Gulf of Maine case, the United States relied on environmental factors to justify an equitable maritime boundary. However, the Chamber of the ICJ discarded the ecological criterion primarily because such a criterion was inconsistent with the ‘neutral criteria’ for drawing a single maritime boundary.

161

Usually environmental considerations

have played little, if any, role in agreements concerning maritime delimitations.

7 AN EVALUATION

7.1 General Trend of Case Law

In general, it can be observed that international courts and tribunals normally attach more importance to geographical than to non-geographical factors.

162

In particular, the con

fig-

uration of the coast plays an essential role in the process of maritime delimitation. Proportionality comes into play in almost all judgments in this

158 159 160 161 162

field. Where islands exist in the

The Eritrea/Yemen Arbitration Award (Second Phase), 22 RIAA, p. 364, paras. 125 –128. The Guyana/Suriname Arbitration Award, 30 RIAA, pp. 96–97, paras. 304–306. The Croatia/Slovenia Arbitration Award, p. 345, para. 1083, available at: https://pca-cpa.org/en/cases/3/. ICJ Reports 1984, p. 327, para. 193. T. Scovazzi, ‘The Evolution of International Law of the Sea: New Issues, New Challenges’ (2000) 286 RCADI , p. 200.

268

International Law Governing Jurisdictional Zones delimitation area, legal effect given to those islands will always be an important issue in the delimitation process. By contrast, non-geographical factors play but a modest role in the process of maritime delimitation. In fact, the in

fluence of economic factors remains modest in maritime delimi-

tation. The conduct of the parties and historic rights have rarely been taken into account by international courts and tribunals. Navigational factors were exceptionally taken into account only in the

Eritrea/Yemen

and

Guyana/Suriname

cases. Other non-geographical

factors, such as security interests and environmental factors, have never been taken into account by international courts or tribunals, although their relevance has not necessarily been denied. Overall, it can be observed that maritime delimitation is effected by international courts and

tribunals

on

the

basis,

in

essence,

of

geographical

considerations.

In

particular,

the modest role played by economic factors appears to demonstrate that maritime delimitation relates to the con

flicts over how much maritime space coastal States can obtain on

account of geographical factors, regardless of their economic importance. In that sense, it may be said that in essence, maritime delimitation is of a

spatial

rather than of an

economic

nature.

7.2 Judicial Creativity in the Law of Maritime Delimitation

The above consideration appears to show that rules of law have been developed through the case law of international courts and tribunals, independently of State practice and

juris.

opinio

A typical example is the concept of proportionality. The large role of proportionality

as an operational rule or as a test of equitableness cannot be explained from the viewpoints of State practice and

opinio juris.

To a certain extent, the same is true of the effect to be

given to islands. While international courts and tribunals have developed the ‘half-effect’ solution concerning offshore islands, agreements giving half effect to offshore islands are rare in State practice. It seems, therefore, that the courts ’ solution of giving half effect to offshore islands in the

Anglo-French Continental Shelf, Tunisia/Libya

cases is a novelty in this

and

Gulf of Maine

field. Such a solution can be regarded as an example of

‘ judicial

creativity ’ . Under Article 38(1) of the Statute of the ICJ, judicial decisions are merely subsidiary means for the determination of rules of law. In the context of maritime delimitation, however, it can be said that the ICJ and arbitral courts have been creating and developing the law of maritime delimitation. The signi

ficant role of judicial creativity in the nature of

maritime delimitation may be explained by at least two reasons. First, to achieve equitable results, there is a need to take various geographical and nongeographical factors into account. Since one cannot expect there to be speci

fic

rules

regarding each and every factor to be considered, international courts and tribunals often face potential lacunae in the law. Accordingly, within their compass, they need to develop rules with regard to the effect to be attributed to those factors in the framework of equitable principles.

269

Maritime Delimitation Second, the Parties to a treaty seldom explain in the latter why and to what extent a certain relevant circumstance has been taken into account when drawing a maritime boundary. For this very reason, it is dif practice. Here there is an inherent dif

ficult

to

find

evidence of opinio juris in State

ficulty in identifying customary rules in the field of

maritime delimitation. Accordingly, it is hardly surprising that international courts and tribunals have to rely mainly on judge-made law in this particular

field.

7.3 Delimitation of the Continental Shelf Beyond 200 Nautical Miles

The delimitation of the continental shelf beyond 200 nautical miles is a comparatively new subject in the law of maritime delimitation.

163

In this regard, three issues need further

consideration: (i) entitlements to the continental shelf beyond 200 nautical miles, (ii) the relationship

between

the

CLCS

and

an

international

court

or

tribunal,

and

(iii)

the

methodology.

(a) Entitlements Above all other aspects, an international court or tribunal must examine whether the Parties have overlapping entitlements to the continental shelf beyond 200 nautical miles. In

the

Bangladesh/Myanmar , Bangladesh/India and Ghana/Côte d’Ivoire

cases,

164

inter-

national tribunals accepted that the Parties had entitlements to the continental shelf beyond 200 nautical miles on the basis of the existence of agreement between the Parties and/or submissions of information to the CLCS. However, the particular circumstances as shown by the unique nature of the Bay of Bengal will not exist in other regions.

165

Furthermore,

there is no guarantee that the Parties in dispute will always agree on the existence of entitlements to the continental shelf beyond 200 nautical miles. Where no agreement exists in

this

matter,

an

international

court

or

tribunal

may

encounter

ficulties.

dif

In

the

Nicaragua/Colombia case, for instance, Colombia claimed that there are no areas of extended continental shelf within this part of the Caribbean Sea.

166

The ICJ, in its judgment

of 2012, refrained from delimitation of the continental shelf boundary beyond 200 nautical miles on the grounds that Nicaragua had not established that it has a continental margin that extends far enough to overlap with Colombia’ s 200-nautical-mile entitlement to the continental shelf, measured from Colombia ’s mainland coast.

167

In 2013, however, Nicaragua

instituted new proceedings against Colombia with regard to the delimitation of the continental shelf beyond 200 nautical miles from the Nicaraguan coast.

163

168

The Court, in its

Generally on this issue, see B. M. Magnússon, ‘Outer Continental Shelf Boundary Agreement’ (2013) 62

ICLQ , pp. 345–372. 164 165

The Bangladesh/Myanmar case, ITLOS Reports 2012, p. 105, para. 399. Xuexia Liao, ‘Evaluation of Scienti

fic Evidence by International Courts and Tribunals in the Continental

Shelf Delimitation Cases ’ (2017) 48 ODIL, p. 148. 166 168

ICJ Reports 2012, p. 667, para. 122.

167

Ibid., p. 669, para. 129.

Application instituting proceedings, 16 September 2013.

270 International Law Governing Jurisdictional Zones judgment of 2016 (Preliminary Objections), noted that Nicaragua provided the CLCS with the ‘

final

’ information required in Article 76(8) of the LOSC.

169

The vote was tied, eight votes to

eight, but by the President ’ s casting vote Nicaragua’ s request was admitted, concerning the precise course of the maritime boundary between Nicaragua and Colombia in the areas of the continental shelf which appertain to each of them beyond the boundaries determined by the Court in its judgment of 19 November 2012.

170

(b) The Relationship Between the CLCS and an International Court or Tribunal The next issue concerns the relationship between the CLCS and an international court or tribunal. In this regard, international tribunals emphasise the difference between delineation under Article 76 and delimitation under Article 83 of the LOSC. For instance, ITLOS in the Bangladesh/Myanmar case ruled:

There is a clear distinction between the delimitation of the continental shelf under article 83 and the delineation of its outer limits under article 76. Under the latter article, the Commission is assigned the function of making recommendations to coastal States on matters relating to the establishment of the outer limits of the continental shelf, but it does so without prejudice to delimitation of maritime boundaries. The function of settling disputes with respect to delimitation of maritime boundaries is entrusted to dispute settlement procedures under article 83 and Part XV of the Convention, which include international courts 171

and tribunals.

For the Tribunal, ‘the exercise of its jurisdiction in the present case cannot be seen as an encroachment on the functions of the Commission’ . to ful

172

ITLOS thus concluded that in order

fil its responsibilities under Part XV, section 2 of the Convention, it had an obligation

to delimit the continental shelf between the Parties beyond 200 nautical miles.

173

The

dictum of ITLOS was echoed by the Annex VII Arbitral Tribunal in the Bangladesh/India case

174

175

and the ITLOS Special Chamber in the Ghana/Côte d ’Ivoire case.

The difference between the delineation of the outer limits of the continental shelf and maritime delimitation was also stressed by the ICJ in the Question of the Delimitation of the

Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast . The Court held:

169

Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v Colombia) , Preliminary Objections, Judgment, ICJ Reports 2016, p. 132, para. 86.

170 172 174 175

Ibid. , pp. 139–140, para. 126. The case is still pending. Ibid. , p. 102, para. 393.

173

171

ITLOS Reports 2012, p. 99, para. 376.

Ibid., p. 103, para. 394.

The Bangladesh/India Arbitration Award, para. 76.

Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’ Ivoire in the Atlantic Ocean (Ghana/Côte d ’Ivoire), Judgment, ITLOS Reports 2017 (not yet reported), para. 495.

271 Maritime Delimitation

[S]ince the delimitation of the continental shelf beyond 200 nautical miles can be undertaken independently of a recommendation from the CLCS, the latter is not a prerequisite that needs to

fi

be satis ed by a State party to UNCLOS before it can ask the Court to settle a dispute with 176

another State over such a delimitation.

In Maritime Delimitation in the Indian Ocean (Preliminary Objections), however, the ICJ appeared to take a more nuanced view:

A lack of certainty regarding the outer limits of the continental shelf, and thus the precise location of the endpoint of a given boundary in the area beyond 200 nautical miles, does not, however, necessarily prevent either the States concerned or the Court from undertaking the delimitation of the boundary recommendations.

in appropriate circumstances

before the CLCS has made its

177

The term ‘in appropriate circumstances ’ can be interpreted to mean that the Court would decide whether the delimitation of the continental shelf beyond 200 nautical miles should be effected before recommendations of the CLCS on a case-by-case basis.

178

In this

connection, ITLOS, in the Bangladesh/Myanmar case, admitted that it ‘ would have been hesitant to proceed with the delimitation of the area beyond 200 nm had it concluded that there was signi question’ .

ficant uncertainty as to the existence of a continental margin in the area in

179

(c) Methodology The third issue relates to the methodology applicable to the delimitation of the continental shelf beyond 200 nautical miles. In this regard, ITLOS held that Article 83 of the LOSC applies

equally

to

200 nautical miles;

the 180

delimitation

of

the

continental

shelf

both within

and

beyond

and that the delimitation method to be employed in the present case

for the continental shelf beyond 200 nautical miles should not differ from that within 200 nautical miles.

181

ITLOS’ approach was echoed by the Annex VII Arbitral Tribunal in

the 2014 Bangladesh/India Arbitration.

182

The concept of ‘one single continental shelf’ provides a legal basis for the application of the same method to the delimitation of the continental shelf beyond 200 nautical miles.

176 177

ICJ Reports 2016, p. 137, para. 114. Emphasis added. Maritime Delimitation in the Indian Ocean (Somalia v Kenya), Preliminary Objections, Judgment, 2 February 2017, para. 94.

178

G. Vega-Barbosa, ‘The Admissibility of Outer Continental Shelf Delimitation Claims Before the ICJ Absent a Recommendation by the CLCS ’ (2018) 49 ODIL, p. 111.

179 182

ITLOS Reports 2012, p. 115, para. 443.

180

Ibid., p. 117, para. 454.

The Bangladesh/India Arbitration Award, para. 465.

181

Ibid., para. 455.

272

International Law Governing Jurisdictional Zones This concept was presented by the Arbitral Tribunal in the Barbados/Trinidad and Tobago case, stating: ‘ There is in law only a single “continental shelf” rather than an inner 183

continental shelf and a separate extended or outer continental shelf. ’ concept of ‘ one single continental shelf’ was con

Bangladesh/India

185

firmed 186

and Ghana/Côte d ’Ivoire cases.

Subsequently the

in the Bangladesh/Myanmar ,

184

In the words of the ITLOS Special

Chamber in the Ghana/Côte d ’Ivoire case:

As far as the methodology for delimiting the continental shelf beyond 200 nm is concerned, the Special Chamber recalls its position that there is only one single continental shelf. Therefore it is considered inappropriate to make a distinction between the continental shelf within and 187

beyond 200 nm as far as the delimitation methodology is concerned.

According to the dictum, the same delimitation method, i.e. the three-stage approach, can equally apply to the delimitation of the continental shelf beyond 200 nautical miles. In relation to the lateral delimitation, international courts and tribunals would encounter no serious dif

ficulty in extending the delimitation line in the same direction until it reached the

outer limits of the continental shelf.

188

In fact, the Bangladesh/Myanmar, Bangladesh/India

and Ghana/Côte d’Ivoire cases related to delimitation between States with adjacent coasts. However, whether the same methodology can apply to the delimitation between States with opposite coasts needs further consideration.

8 PROVISIONAL ARRANGEMENTS

8.1 Articles 74(3) and 83(3) of the LOSC In many parts of the world ’s oceans, maritime delimitation is not yet accomplished. However, it is not suggested that unresolved delimited areas remain a legal vacuum. Indeed, Articles 74(3) and 83(3) of the LOSC provide obligations during the transitional period before reaching the

final agreement on maritime delimitation:

189

Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements

183 184 186 187 189

The Barbados/Trinidad and Tobago Arbitration Award, 27 RIAA, pp. 208–209, para. 213. ITLOS Reports 2012, pp. 96 –97, para. 362.

185

The Bangladesh/India Arbitration Award, para. 77.

The Ghana/Côte d ’Ivoire case, Judgment, ITLOS Reports 2017 (not yet reported), para. 490.

Ibid., para. 526.

188

Ibid., p. 77.

Articles 74(3) and 83(3) of the LOSC are virtually the same provision. For a legislative history of Article 74(3), see in particular, R. Lagoni, ‘Interim Measures Pending Maritime Delimitation Agreements’ (1984) 78

AJIL , pp. 349 et seq. Further, see N. Klein, ‘Provisional Measures and Provisional Arrangements’ in Oude Elferink et al. (eds.), Maritime Boundary Delimitation, pp. 117 et seq.

273 Maritime Delimitation of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the

fi

nal agreement. Such arrangements shall be without prejudice to the

fi

nal

delimitation.

This provision contains positive and negative obligations. Articles 74(3) and 83(3) of the Convention place a positive obligation upon the States concerned to make every effort to conclude provisional arrangements of a practical nature pending agreement on delimitation ‘ in a spirit of understanding and cooperation’ . As the Arbitral Tribunal observed in the

Guyana/Suriname case, the inclusion of the phrase

‘in

a spirit of understanding and

cooperation ’ is thought to indicate the drafters’ intent to require of the parties a conciliatory approach to negotiations, pursuant to which they would be prepared to make concessions in order to reach a provisional arrangement. understanding and cooperation ’ re

flects

190

It may be said that the phrase ‘ in a spirit of 191

the principle of good faith.

Following the

obligation, States must enter into negotiations in good faith, even though this does not imply an obligation to reach an agreement.

192

Articles 74(3) and 83(3) of the Convention also provide a negative obligation not to jeopardise or hamper the reaching of the

final

agreement during the transitional period.

According to the ITLOS Special Chamber, the transitional period means ‘the period after the maritime delimitation dispute has been established until a 193

or adjudication has been achieved ’ .

final delimitation by agreement

The obligation under Articles 74(3) and 83(3) would

also arise if one of the parties in dispute refused to enter into negotiation on the maritime delimitation, or if the negotiations between the parties reached a deadlock or were discontinued.

194

Articles 74(3) and 83(3) contain no indication of what is meant by the phrase

‘ jeopardize or hamper’ . As the Arbitral Tribunal ruled in the

Guyana/Suriname case, the

phrase is not intended to preclude some activities by the States concerned within the disputed area, provided that those activities would not have the effect of prejudicing the

final

agreement.

195

Considering that the provisional arrangements can be entered into

before the relevant States commence their negotiation of the

final delimitation agreement,

this provision can even be said to facilitate the provisional utilisation of the area to be delimited.

190 191 192

196

The Guyana/Suriname Arbitration Award, 30 RIAA, p. 153, para. 461. See also Article 300 of the LOSC. The North Sea Continental Shelf cases, ICJ Reports 1969, p. 48, para. 87. See also the Ghana/Côte d’ Ivoire case, Judgment, para. 604.

193 194

Ibid., para. 630. R. Lagoni, ‘Interim Measures Pending Maritime Delimitation Agreements’, (1984) 78 AJIL, p. 364. See also British Institute of International and Comparative Law, Report on the Obligations of States under Articles 73

(3) and 83(3) of UNCLOS in respect of Undelimited Maritime Areas (London, British Institute of International and Comparative Law, 2016), p. 12, para. 41. 195

The Guyana/Suriname Arbitration Award, 30 RIAA, p. 132, para. 460 and para. 465; Virginia Commentary, vol. 2, p. 815.

196

Lagoni, ‘Interim Measures ’, p. 354.

274

International Law Governing Jurisdictional Zones

8.2 Unilateral Exploration and Exploitation of Natural Resources in Disputed Areas

A contentious issue that arises in this context relates to the lawfulness of unilateral exploration and exploitation of natural resources in disputed areas. In approaching this issue, three cases deserve serious consideration. The

first is the Aegean Sea Continental Shelf case between Greece and Turkey.

197

An issue

at point in this case concerned unilateral seismic exploration conducted by Turkey in disputed areas of the continental shelf. Greece requested that the ICJ indicate the provisional measure that requires Turkey to refrain from all exploration activity or any scienti research in disputed areas of the continental shelf.

198

fic

However, the ICJ declined this request

partly because no complaint had been made that this form of seismic exploration involved any risk of physical damage to the seabed or subsoil or to their natural resources.

199

Even

though the Court did not examine the legality of unilateral seismic exploration in disputed areas at the stage of the proceedings of provisional measures, the Order did seem to imply that the seismic exploration of a transitory nature could not be considered as affecting Greece’ s potential rights to the continental shelf.

200

The second case is the 2007 Guyana/Suriname Arbitration. By referring to the Aegean Sea

Continental Shelf Order, the Arbitral Tribunal ruled that a distinction must 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.

201

According to the Arbitral

Tribunal, ‘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 jeopardize the reaching of a

final agreement on delimitation , while unilateral acts which do not cause a ’

physical change to the marine environment would not have the effect of jeopardising or hampering the reaching of a ary.

202

final agreement on the delimitation of the maritime bound-

For the Arbitral Tribunal, ‘unilateral acts that cause a physical change to the marine

environment will generally be comprised in a class of activities that can be undertaken only jointly or by agreement between the parties ’.

203

Following the Tribunal ’s view, it can be

argued that activities which physically affect the marine environment may hamper or jeopardise the reaching of a

final

agreement and, thus, these acts are contrary to Article

74(3), while seismic testing which does not cause a physical change to the marine environment should be permissible in disputed areas,

197 198

204

205

if there is no objection from the other party.

Aegean Sea Continental Shelf (Greece v Turkey) , Interim Measures, ICJ Reports 1976, p. 3. Ibid., pp. 4 –5, para. 2. Request for the indication of Interim Measures of Protection submitted by the Government of Greece, 10 August 1976, p. 66.

199 200

ICJ Reports 1976, p. 10, para. 30; p. 14, para. 46. N. Klein, ‘Provisional Measures and Provisional Arrangements in Maritime Boundary Disputes’ (2006) 21

IJMCL , p. 432. 201 202

The Guyana/Suriname Arbitration Award, 30 RIAA, pp. 132– 133, paras. 467–469.

Ibid., p. 132, paras. 466 –467.

203

Ibid., p. 137, para. 480.

204

The Guyana/Suriname Arbitration Award, 30 RIAA, p. 137, para. 481.

205

In the Guyana/Suriname case, seismic activities did not give rise to objections from either side. Ibid. In this connection, some argue that in certain circumstances, even seismic testing can breach the obligation to ‘make every effort not to jeopardise or hamper the reaching of a

final agreement . Y. van Logchem, The field, Moon-Sang Kwon and Seokwoo Lee ’

‘

Scope for Unilateralism in Disputed Maritime Areas ’, in C. H. Scho

(eds.), Limits of Maritime Jurisdiction (Brill, Leiden, 2013), p. 185; British Institute of International and

275 Maritime Delimitation The third case is the 2015 Ghana/Côte d’Ivoire case (provisional measures). In this case, the Ivory Coast asked the ITLOS Special Chamber to prescribe provisional measures that required Ghana to take steps to suspend all ongoing oil exploration and exploitation operations conducted by Ghana in the disputed area and to refrain from granting any new permit for oil exploration and exploitation there.

206

Yet the Special Chamber con-

sidered that ‘the suspension of on-going activities conducted by Ghana in respect of which drilling has already taken place would entail the risk of considerable

financial loss to Ghana

and its concessionaires and could also pose a serious danger to the marine environment 207

resulting, in particular, from the deterioration of equipment ’ .

Thus the Special Chamber

declined to prescribe the provisional measure requested by the Ivory Coast for Ghana to suspend all ongoing oil exploration and exploitation operations in the disputed area, while it prescribed the provisional measure requiring Ghana to take all necessary steps to ensure that no new drilling either by Ghana or under its control takes place in the disputed area.

208

Subsequently the Special Chamber ruled, in its judgment on the merits, that the hydrocarbon activities of Ghana in the dispute maritime area did not constitute conduct that jeopardised or hampered the reaching of the

final

agreement.

209

The Special Chamber’ s

dicta in the Ghana/Côte d ’Ivoire case may be taken to imply that in certain circumstances, unilateral drillings in disputed areas may be permissible before reaching a

final agreement

on maritime delimitations. Yet there is the risk that the Special Chamber’ s view in the Order might be used by some States to justify unilateral exploitation of natural resources in certain disputed areas. Accordingly, whether or not the Special Chamber’ s view can be generalised needs careful consideration.

210

All in all, the case law seems to remain inad-

equate to draw any general conclusions with regard to the criterion for determining the legality of the unilateral activities in the disputed marine area. To effectuate Articles 74(3) and 83(3), however, as Judge Paik stated, it must be stressed that ‘ the obligation not to 211

jeopardise or hamper should not be taken lightly’ .

9 CONCLUSIONS The above considerations can be summarised in six points. (i) The concept of equity or equitable principles is at the heart of the law of maritime delimitation. However, there are two contrasting approaches to these principles. One is the result-orientated equity approach that seeks to maintain maximum

flexibility by denying

Comparative Law, Report on the Obligations of States under Articles 73(3) and 83(3) of UNCLOS in respect

of Undelimited Maritime Areas (2016), p. 26. 206 207 208

The Ghana/Côte d ’Ivoire case, Provisional Measures, ITLOS Reports 2015, pp. 152–153, para. 25.

Ibid., para. 99. Ibid., p. 166, para. 108(1)(a). In this regard, it is to be noted that exploration and exploitation operations of Ghana are carried out on Ghana’s side of the equidistance line.

209 210

The Ghana/Côte d ’Ivoire case, Judgment, paras. 631–634. Y. Tanaka, ‘Unilateral Exploration and Exploitation of Natural Resources in Disputed Areas: A Note on the

Ghana/Côte d ’Ivoire Order of 25 April 2015 before the Special Chamber of ITLOS’ (2015) 46 ODIL , p. 327. See also Separate Opinion of Judge Paik in the Ghana/Côte d ’Ivoire case, para. 17. 211

Ibid., para. 18.

276 International Law Governing Jurisdictional Zones any obligatory method of maritime delimitation, and the other is the corrective-equity approach that stresses predictability by applying the objective method, i.e. the equidistance

first stage of maritime delimitation. In this sense, the history of the law of maritime delimitation vacillates between predictability and flexibility. method, at the

(ii) Currently there is a general trend, ‘ unless there are compelling reasons’ not to do so, for international courts and tribunals to apply the three-stage approach to all types of maritime delimitations at the conventional and customary law levels. In broad terms, it can be said that the law of maritime delimitation is uni

fied

under the third-stage approach

which is regarded as a variation of the corrective-equity approach. (iii) While the result-orientated equity approach is

flexible, it runs the risk of producing

legal impressionism by blurring the distinction between decisions based on equitable principles and those taken

ex aequo et bono .

By contrast, the corrective-equity or the

third-stage approach enhances predictability as a requirement of law by incorporating an objective method, namely the equidistance method, into the realm of law. Under this approach, a consideration of equity may come into play at the second stage with a view to ensuring an equitable result. It may be said that the corrective-equity or third-stage approach would provide a better framework for reconciling the two requirements of law, namely predictability and

flexibility.

(iv) The three-stage approach is not free from problems with regard to

the manner

in

which this approach is applied. First, more often than not, a provisional equidistance line has been constructed on the basis of base points selected by judges. This means that consideration of equity already comes into play at the Second, the law of maritime delimitation is still

fluid

first stage of maritime delimitation. when it comes to consideration of

relevant circumstances at the second stage of maritime delimitation. An excessively creative adjustment of a provisional equidistance line would run the risk of undermining the predictability of the law of maritime delimitation. Third, uncertainty in the process of maritime delimitations is further ampli

fied by obscurity associated with the disproportion-

ality test at the third stage of maritime delimitation. This test is open to criticism in at least four respects: • lack of any objective criterion for calculating the lengths of relevant coasts and relevant

areas, • lack of any objective criterion for evaluating (dis)proportionality between the coastal

lengths and maritime areas appertaining to each Party, • inability to determine any concrete delimitation line since the number of lines capable of

producing the same proportion is limitless, and • the risk of making unclear the distinction between delimitation and apportionment.

In light of the limitations with the disproportionality test, it is highly debatable whether that test can contribute to enhancing the predictability and objectiveness of the process of maritime delimitations. All in all, regardless of predictability at the methodological level,

ficient degree

it is debatable whether the law of maritime delimitation could acquire a suf of predictability.

277 Maritime Delimitation (v) ITLOS and the Annex VII Arbitral Tribunal took the view that the same delimitation method, i.e. the three-stage approach, can equally apply to the delimitation of the continental shelf beyond 200 nautical miles. The same approach may arguably apply to the lateral delimitation of the continental shelf, without serious dif

ficulty. Where relevant coasts are

opposite, however, a question may arise whether of the same methodology is applicable to the delimitation of the continental shelf beyond 200 nautical miles. (vi) The legality of unilateral exploration and exploitation in disputed areas constitutes a contentious issue under Articles 74(3) and 83(3) of the LOSC. It is argued that unilateral acts that may not cause permanent damage to the marine environment, such as seismic testing, are not a priori inconsistent with a party ’s obligation to make every effort not to jeopardise or hamper the reaching of a

final agreement, unless there is an objection made by the other

party. However, whether unilateral exploitation of natural resources that may cause permanent damage to the marine environment is permissible under Articles 74(3) and 83(3) needs careful consideration.

FURTHER READING 1 Monographs There are a considerable number of books and articles with regard to maritime delimitations. Thus, only principal monographs on this subject will be suggested here. F. A. Ahnish, The International Law of Maritime Boundaries and the Practice of States in the

Mediterranean Sea (Oxford, Clarendon Press, 1993). M. N. Antunes, Towards the Conceptualization of Maritime Delimitation (Leiden, Brill/Nijhoff, 2003). British Institute of International and Comparative Law, Report on the Obligations of States under

Articles 73(3) and 83(3) of UNCLOS in respect of Undelimited Maritime Areas (London, British Institute of International and Comparative Law, 2016). T. Cottier, Equitable Principles of Maritime Delimitation: The Quest for Distributive Justice in

International Law (Cambridge University Press, 2015). D. Evans, Relevant Circumstances and Maritime Delimitation (Oxford, Clarendon Press, 1987). S. Fietta and R. Cleverly, A Practitioner’ s Guide to Maritime Boundary Delimitation (Oxford University Press, 2016). V. L. Forbes, Indonesia’ s Delimited Maritime Boundaries (Berlin, Springer, 2014). D. M. Johnston, The Theory and History of Ocean Boundary-Making (Kingston, McGill-Queen ’s University Press, 1988). M. Kamga, Délimitation maritime sur la côte atlantique africaine (Brussels, Bruylant, 2006). R. Kolb, Case Law on Equitable Maritime Delimitation: Digest and Commentaries (The Hague, Brill/ Nijhoff, 2003). R. Lagoni and D. Vignes (eds.), Maritime Delimitation (Leiden, Brill/Nijhoff, 2006). M. Lando, Maritime Delimitation as a Judicial Process (Cambridge University Press, 2019). L. Lucchini and M. Voelkel, Droit de la mer, tome 2: Délimitation, Navigation et Pêche, vol. I,

Délimitation (Paris, Pedone, 1996).

278 International Law Governing Jurisdictional Zones P. von Mühlendahl, L’équidistance dans la délimitation des frontière maritimes: étude de la jurisprudence internationale (Paris, Pedone, 2016). A. G. Oude Elferink, The Law of Maritime Boundary Delimitation: A Case Study of the Russian Federation (Dordrecht, Nijhoff, 1994). A. G. Oude Elferink, T. Henriksen and S.V. Busch, Maritime Boundary Delimitation: The Case Law (Cambridge University Press, 2018). V. Prescott and C. Scho

field, The Maritime Political Boundaries of the World, 2nd edn (Leiden, Brill/

Nijhoff, 2005). A. Razavi, Continental Shelf Delimitation and Related Maritime Issues in the Persian Gulf (The Hague, Nijhoff, 1997). Seoung-Yong Hong and J. M. Van Dyke (eds.), Maritime Boundary Disputes, Settlement Process, and the Law of the Sea (Leiden, Brill/Nijhoff, 2009). Sun Pyo Kim, Maritime Delimitation and Interim Arrangements in North East Asia (The Hague, Brill/Nijhoff, 2004). Y. Tanaka, Predictability and Flexibility in the Law of Maritime Delimitation, 2nd edn (Oxford, Hart Publishing, 2019). P. Weil, Perspectives du droit de la délimitation maritime [The Law of Maritime Delimitation: Re

flections] (Paris, Pedone, 1988 [Cambridge, Grotius, 1989]).

2 Collection of Documents An important source of treaties with regard to maritime delimitation is the series of International Maritime Boundaries by the American Society of International Law. To date, six volumes of International Maritime Boundaries have been published by Nijhoff in 1993 (vols. I and II), 1998 (vol. III), 2002 (vol. IV), 2005 (vol. V), 2011 (vol. VI) and 2016 (vol. VII).

7 Conservation of Marine Living Resources Main Issues Marine living resources are of vital importance for mankind because these resources are an essential source of protein and many human communities depend on

fishing.

As marine

living resources are renewable, there is certainly a need to pursue conservation policies in order to secure sustainable use of these resources. Nonetheless, the depletion of these resources is a matter of more pressing concern in the international community. Thus the conservation of marine living resources is a signi

ficant

issue in the law of the sea. This

chapter will examine rules of international law governing the conservation of these resources, focusing particularly on the following issues:

(i) What are the problems associated with the traditional approaches, namely the zonal management approach and the species-speci

fic approach, to conservation of marine

living resources? (ii) What is the role of the concept of sustainable development in the conservation of marine living resources? (iii) What is the difference between the species-speci approach?

fic approach and the ecosystem

ficance and limitations of the precautionary approach to the

(iv) What are the signi

conservation of these resources? (v) How is it possible to ensure compliance with rules respecting the conservation of marine living resources?

1 INTRODUCTION Considering that marine living resources are of vital importance for mankind because these resources constitute an increasingly important source of protein,

1

it could well be said that

conservation of marine living resources can be considered as a common interest of the

1

According to the FAO, in 2007

fish accounted for 15.7 per cent of the global population s intake of animal

protein and 9.1 per cent of all protein consumed. FAO, FAO, 2010), p. 3.

281

’

The Status of World Fisheries and Aquaculture

(Rome,

282 Protection of Community Interests at Sea international community. In this regard, it is relevant to note that the LOSC, in its Preamble, explicitly recognises its aim of promoting the conservation of marine living resources. At the same time, marine living resources are important for the international trade and industry of many countries. It may be said that conservation of marine living resources deeply involves not only community interests but also national interests at the same time. Thus the rules of international law on this subject rest on the tension between the protection of community interests and the promotion of national interests. While there is no universal de

finition of conservation, one can take as an example Article

2 of the 1958 Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas (hereinafter the High Seas Fishing Convention), which provides as follows:

As employed in this Convention, the expression ‘conservation of the living resources of the high seas’ means the aggregate of the measures rendering possible the optimum sustainable yield from those resources so as to secure a maximum supply of food and other marine products. Conservation programmes should be formulated with a view to securing in the

fi

rst place a

supply of food for human consumption.

As shown in this provision, conservation does not directly mean a moratorium or prohibition of exploitation of marine living resources.

2

In practice, the ‘supply of food for

human consumption ’ will be determined on the basis of economic and social needs. Hence conservation is not a purely scienti

fic or biological concept, but is qualified by economic,

political and social elements. Presently there are growing concerns that marine living resources are at serious risk due

fishing, illegal, unregulated and unreported fishing (IUU fishing), and marine pollution. According to the FAO, in 2013, 31.4 per cent of fish stocks were estimated as fished at a biologically unsustainable level and accordingly overfished. Of all the stocks assessed in 2013, 58.1 per cent were fully fished. The failure of conservation to overcapacity, over 3

4

of marine living resources is due to a lack of will on the part of States to take appropriate conservation measures. From a legal viewpoint, however, there is a need to examine the limitations of the traditional approaches to conservation of marine living resources in international law and explore new approaches which may enhance the ef

ficiency

of

conservation of these resources. Thus this chapter will examine essential legal issues with regard to the conservation of marine living resources.

2

5

Article II(2) of the 1980 Convention on the Conservation of Antarctic Marine Living Resources explicitly states that ‘the term “conservation” includes rational use’.

3 4

UN General Assembly, A/RES/58/240, adopted on 23 December 2003, para. 12 of Preamble. FAO, The State of World Fisheries and Aquaculture: Contributing to Food Security and Nutrition for All (Rome, FAO, 2016), p. 38.

5

The basic idea of the present writer on this subject is expressed in: Y. Tanaka, A Dual Approach to Ocean

Governance: The Cases of the Zonal and Integrated Management in International Law of the Sea (Aldershot, Ashgate, 2008), Chapters 2 and 3; by the same author, ‘The Changing Approaches to Conservation of Marine Living Resources in International Law’ (2011) 71 ZaöRV , pp. 291–330. This chapter relies partly on the analysis made in these studies with modi

fications.

283 Conservation of Marine Living Resources

2 CONSERVATION OF MARINE LIVING RESOURCES PRIOR TO 1982 The degradation of commercial species in the oceans was a matter of concern by the second half of the nineteenth century. At that time,

fishery treaties were already being concluded at fisheries

the bilateral level. These treaties aimed to resolve local problems associated with within the territorial seas and its adjacent waters.

6

It was only after World War II that

conservation of marine living resources became a subject of multilateral treaties concluded between States. At the global level, an obligation to conserve marine living resources was, for the time,

enshrined

in

the

1958

Resources of the High Seas.

7

Convention

on

Fishing

and

Conservation

of

the

first

Living

This Convention obliges States to apply conservation measures

to their own nationals pursuant to Articles 3 and 4. The Convention was innovative in two respects.

first innovation involved the concept of a special interest of the coastal State. Given that the high seas fisheries may have adverse effects upon marine species in the territorial The

seas of the coastal State, the protection of interest of the coastal State is of particular importance in this

field. The High Seas Fishing Convention thus introduced a new concept

of the ‘special interest ’ of the coastal State. Article 6(1) of the Convention explicitly provided: ‘ A coastal State has a special interest in the maintenance of the productivity of the living resources in any area of the high seas adjacent to its territorial sea. ’ However, this does not mean that the coastal State acquires exclusive or preferential rights over in the area concerned.

8

fisheries

It is true that, in certain circumstances, the coastal State is

empowered to take unilateral measures of conservation appropriate to any stock of

fish

or other marine resources in any area of the high seas adjacent to its territorial sea by virtue of Article 7. However, this provision should not be construed in such a way as to entitle the coastal State to directly apply its measures to nationals of other States. Rather, it should be interpreted to mean that

fishing

States are obliged to apply the measures unilaterally

adopted by the coastal State to its own nationals. In this sense, Article 7(1) does not disturb the exclusivity of the

flag State jurisdiction over vessels flying its flag.

9

The second innovation involved the obligations of newcomer States. The presence of free-riders may seriously undermine the effectiveness of regulatory measures necessary for the

conservation

of

marine

species.

In

response,

Article

5

of

the

High

Seas

Fishing

Convention ensures that if, subsequent to the adoption of the conservation measures

6

A list of the treaties was attached to the report prepared by José León Suárez in 1925. League of Nations, Committee of Experts for the Progressive Codi

fication of International Law, Questionnaire No. 7 adopted by

the Committee at its Second Session January 1926, (1926) 20 AJIL Supplement, pp. 240– 241. For a detailed analysis of treaties regulating

fishing, see A. P. Daggett,

‘The Regulation of Maritime Fisheries’ (1934) 28

AJIL, pp. 693–717; G. Gidel, Le droit international public de la mer, Le temps de paix, Tome III: La mer territorial et la zone contiguë (Paris, Duchemin, 1981), pp. 310 et seq. See also L. Juda, International Law and Ocean Use Management: The Evolution of Ocean Governance (London, Routledge, 1996), p. 20. 7 8

Text in: 559 UNTS, p. 285. Entered into force 20 March 1966. J. H. W. Verzijl, ‘The United Nations Conference on the Law of the Sea, Geneva, 1958, II’ (1959) 6 NILR, p. 125; S. Oda, International Control of Sea Resources (Dordrecht, Nijhoff, 1989), p. 116.

9

S. Oda, ‘Fisheries Under the United Nations Convention on the Law of the Sea ’ (1983) 77 AJIL, p. 740.

284

Protection of Community Interests at Sea referred to in Articles 3 and 4, nationals of other States, i.e. the newcomer States, engage in

fishing the same stock or stocks of fish or other living marine resources in any area or areas

their own nationals ’ not

of the high seas, the newcomer States shall apply the measures to ‘

later than seven months after the date on which the measures shall have been noti

fied to the

Director-General of the FAO. As the newcomer States are to apply the measures ‘to their own nationals’ , this provision should not be construed as allowing the

fishing

State or

States to exercise jurisdiction over the nationals of the newcomer States. In any case, the High Seas Fishing Convention was rati

fied

by only thirty-nine States and achieved only

limited success.

3 CONSERVATION OF MARINE LIVING RESOURCES UNDER THE LOSC (1): THE ZONAL MANAGEMENT APPROACH The LOSC created a basic legal framework for conservation of marine living resources. The framework relies on two basic approaches, namely, the zonal management approach and the

species-speci

fic

approach.

Sections

3

and

4

of

this

chapter

examine

these

two

approaches and their limitations.

3.1 General Considerations Under the zonal management approach, different rules apply to conservation of marine living resources according to each jurisdictional zone. The basic framework of the LOSC on this matter can be succinctly summarised as follows. As explained earlier, internal waters, the territorial seas and the archipelagic waters are 10

under territorial sovereignty.

As territorial sovereignty is comprehensive and exclusive in

its nature, the coastal State can exercise its exclusive jurisdiction over marine resources in these marine spaces. There is little doubt that the coastal State has jurisdiction with regard to conservation of marine living resources in those spaces in accordance with international law. Yet the LOSC contains no explicit obligation to conserve marine living resources in these marine spaces. In the EEZ and the continental shelf, the coastal State has sovereign rights for the purpose of exploring and exploiting the natural resources pursuant to Articles 56(1) and 77(1) of the LOSC as well as customary international law. As discussed earlier, sovereign rights are essentially exclusive in the sense that no one may undertake activities involving the exploration and exploitation of natural resources or make a claim to the EEZ, without the express consent of the coastal State. to

conserve

marine living

resources

11

The LOSC places explicit obligations upon States

in the

EEZ.

While

the natural

resources on the

continental shelf include sedentary species by virtue of Article 77(4), the LOSC provides no speci

10

fic obligation to conserve these species.

See Chapter 3 of this book.

11

See Chapter 4, section 3.3 of this book.

285

Conservation of Marine Living Resources On the high seas, all States enjoy the freedom of

fishing. The freedom is not absolute,

however. As will be seen, States are obliged to cooperate to conserve living resources on the high seas. Under Article 133(a), resources of the Area, which are the common heritage of mankind, involve only mineral resources, and they do not include marine living resources.

3.2 Conservation of Marine Living Resources in the EEZ

Conservation of living resources in the EEZ is particularly important since approximately 90 per cent of all commercially exploitable coast.

12

fish stocks are caught within 200 miles of the

In this regard, Article 61(2) of the LOSC provides an explicit obligation to ensure

that the maintenance of the living resources in the EEZ is not endangered by overexploitation.

13

The conservation of these resources in the EEZ is based on two key concepts, namely,

allowable catch and maximum sustainable yield (MSY). First, Article 61(1) places a clear obligation upon the coastal State to determine the allowable catch of the living resources in its EEZ. Article 62(2) further obliges the coastal State to determine its capacity to harvest the living resources of the EEZ. Where the coastal State does not have the capacity to harvest the entire allowable catch, the coastal State shall, through agreements or other arrangements, give other States access to the surplus of the allowable catch. to the

14

Accordingly, other consequential decisions with regard to access

fish in the EEZ depend essentially on the amount of the allowable catch determined

by the coastal States.

15

Second, the concept of MSY, which is enshrined in Article 61(3), aims at taking the greatest quantity of signi

fish

from a self-generating stock year after year without affecting

ficantly its renewability. In other words, MSY seeks to maintain the productivity of the fish from a stock that is replaced by

oceans by permitting the taking of only that number of the annual rate of new recruits entering the stock.

16

However, the concepts of allowable

ficulty in their practical implementation.

catch and MSY encounter considerable dif

12

P. Malanczuk,

Akehurst’s Modern Introduction to International Law, 7th rev. edn (London, Routledge, 1997),

p. 183; P. G. G. Davies and C. Redgwell, ‘The International Legal Regulation of Straddling Fish Stocks’ (1996) 67

BYIL, p. 200; R. R. Churchill and A. V. Lowe, The Law of the Sea, 3rd edn (Manchester University Press,

1999), p. 162. 13

The term ‘endangered’ is not de

fined by the LOSC. Burk argued that the concept

‘endangered’ refers to

‘reductions in abundance that amount to commercial extinction, or, more strictly, to reductions of such

magnitude that a species is likely to become endangered unless protective action is taken’. W. T. Burk, ‘US Fishery Management and the New Law of the Sea’ (1982) 76 14

AJIL, p. 30.

In this connection, the 2014 FAO Voluntary Guidelines for Flag State Performance states: ‘Where a coastal State decides to engage in a

fisheries access agreement with a fl ag State, the flag State should cooperate with

the coastal State to agree on how to implement their respective roles and responsibilities under that agreement in advance of any

fi shing and fi shing related activities by flag State vessels while in the national

The Voluntary Guidelines for Flag State Performance, COFI/2014/4.2/Rev. 1, March 2014, para. 39, available at: www.fao.org/3/a-mk052e.pdf. W. T. Burke, The New International Law of Fisheries: UNCLOS 1982 and Beyond (Oxford University Press, jurisdiction of the coastal State pursuant to paragraph 3.’ FAO,

15

1994), p. 44. 16

P. Birnie, A. Boyle and C. Redgwell,

International Law and the Environment, 3rd edn (Oxford University

Press, 2009), p. 591. For an analysis in some detail of the concept of MSY, see G. L. Kesteven, ‘MSY Revisited: A Realistic Approach to Fisheries Management and Administration’ (1997) 21

Marine Policy, pp. 73– 82.

286 Protection of Community Interests at Sea A

first

ficulty involves the determination of the total allowable catch (TAC). fish may occur both in the waters of the coastal State and in other areas

dif

A population of

and, consequently, harvesting can also take place in those other areas. In this case, the coastal State ’ s determination of the allowable catch within its zone must take due account of the harvesting that takes place beyond the limits of its jurisdiction, be it within the zones of another State or on the high seas.

17

However, there is no mechanism to do so in the

LOSC. Furthermore, the collection and analysis of reliable scienti

fic data are a prerequisite

to determine the TAC. However, such data is frequently inadequate and costly particularly for developing States.

18

Moreover, it must be noted that the coastal State has a broad

discretion to determine the allowable catch. Apart from the single quali endanger living resources allowable catch as it wishes.

by overexploitation, 19

the coastal State

fication

not to

may in fact set the

The coastal State’s capacity to harvest living resources would

seem not to depend only on the capital and technology of its own national economy. If this is the case, the coastal State may always have the capacity to harvest the entire allowable catch, by introducing foreign capital and technology.

20

Thus, theoretically at least, it is

possible that the coastal State emerges with a zero surplus and thereby evades its duty to allocate surpluses in its EEZ by manipulating the allowable catch. surplus

of

the

allowable

catch

may

also

be

affected

by

21

The access of the

political

and

economic

considerations. A second dif

ficulty

concerns the validity of the concept of MSY as a conservation

objective. This concept is open to question because it fails to take into account not only economic objectives but also the ecological relationships of species, the qualitative status of that habitat, the limits of the given area’ s biomass and factors disturbing the environment.

22

fied by

It must also be noted that under Article 61(3) of the LOSC the MSY is quali

‘ relevant environmental and economic factors, including the economic needs of coastal

fishing

communities and the special requirements of developing States ’.

23

Furthermore,

there is a concern that determination of MSY is rarely, if ever, correct and that the administrative measures taken with a view to its adoption have been and generally still are inadequate and inappropriate.

24

A third obstacle pertains to the lack of review process by a third party capable of examining the validity of the conservation measures of the coastal State in its EEZ. As will be seen, any disputes relating to a State ’ s sovereign rights with respect to the living

17

C. A. Fleischer, ‘Fisheries and Biological Resources’, in R.-J. Dupuy and D. Vignes (eds.),

New Law of the Sea The New International Law of Fisheries

A Handbook on the

, vol. 2 (Dordrecht, Nijhoff, 1991), p. 1073.

18

Burke,

, p. 45; R. Churchill, ‘10 Years of the UN Convention on the

Law of the Sea: Towards a Global Ocean Regime?: A General Appraisal’ (2005) 48 19 21

Burke,

The New International Law of Fisheries

, pp. 47–48.

20

GYIL

, p. 107.

Oda, ‘Fisheries ’, p. 744.

However, such manipulations would be contrary to the obligation of optimum utilisation as well as the

flisch,

obligation not to abuse rights by virtue of Article 300 of the LOSC. L. Ca Economic Zone: An Overview’, in U. Leanza (ed.),

‘Fisheries in the Exclusive

The International Legal Regime of the Mediterranean Sea

(Milan, Giuffrè, 1987), p. 161. 22 23

Birnie et al.,

International Law and the Environment The New International Law of Fisheries

See also Burke,

, p. 591. , pp. 52 –55.

24

Kesteven, ‘MSY Revisited’, p. 73.

287

Conservation of Marine Living Resources resources in the EEZ or their exercise, including its discretionary powers for determining the allowable catch, are exempted from the compulsory settlement procedure embodied in Part XV of the LOSC.

25

While a dispute involving a coastal State ’s obligation to ensure conser-

vation of living resources in the EEZ is to be submitted to conciliation under Annex V, the conciliation commission cannot substitute its discretion for that of the coastal State under Article 297(3)(c). In any case, the report of the conciliation commission is not binding. It follows that there is no effective mechanism for securing implementation of relevant rules and obligations on this subject. Overall, one is forced to conclude that the obligations to conserve living resources in the EEZ remain weak.

3.3 Conservation of Marine Living Resources in the High Seas

Traditionally, conservation of living resources in the high seas has attracted little attention in the international community. As a result of the establishment of the 200-mile EEZ, however,

fishing vessels of distant fishing States increasingly go to fish in the remaining

high seas, leading to exhaustion of living resources. A typical example is the ‘ Doughnut Hole’ in the Bering Sea. This is a small pocket of approximately 50,000 square miles of high seas remaining in the central part of the Bering Sea. Foreign trawlers, which can no longer engage in

fishing within the EEZs of the United States and Russia, intensively exploited the 26

Doughnut Hole. As a consequence, by 1992, the pollock stock had completely collapsed.

As shown in this example, currently the conservation of living resources in the high seas is becoming a matter of serious concern.

27

The LOSC places obligations upon States to conserve marine living resources in the high seas. Under Article 87(1)(e), the freedom of

fishing

is subject to conditions laid down in

section 2, Part VII. Article 116 provides that all States have the right for their nationals to engage in

fishing on the high seas subject to: (a) their treaty obligations; (b) the rights and

duties as well as the interests of coastal States provided for, inter alia, in Article 63, paragraph 2, and Articles 64 to 67; and (c) the provisions of section 2, Part VII. More speci

fically, Article 119(1) obliges States to take measures which are designed to maintain

or restore populations of harvested species at levels which can produce the ‘maximum sustainable yield ’ in determining the allowable catch and establishing other conservation measures for the living resources in the high seas. Under Article 119(2), States are also obliged to exchange available scienti

fic

information relevant to the conservation of

fish

stocks in the high seas through competent international organisations.

25 26

LOSC, Article 297(3)(a). See also Chapter 13, section 3.2 of this book. D. A. Balton, ‘The Bering Sea Doughnut Hole Convention: Regional Solution, Global Implications ’, in O. S. Stokke (ed.), Governing High Seas Fisheries: The Interplay of Global and Regional Regimes (Oxford University Press, 2001), pp. 144–149.

27

Generally on this issue, see R. Barnes and C. Massarella, ‘High Seas Fisheries’, in E. Morgera and K. Kulovesi (eds.), Research Handbook on International Law and Natural Resources (Cheltenham, Edward Elgar, 2016), pp. 369– 389.

288

Protection of Community Interests at Sea The obligation to cooperate is a prerequisite in the conservation of living resources on the high seas. Article 117 thus imposes upon ‘all States’ a duty to take or to cooperate with other States in taking such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas. Article 118 places a clear obligation upon States to cooperate with each other in the ‘ conservation and management’ of living resources in the areas of the high seas. Article 118 further obliges States whose nationals exploit identical living resources, or different living resources in the same area, to negotiate with a view to taking the measures necessary for the conservation of the living resources concerned. Article 118 requires States to cooperate as appropriate to establish subregional or regional

fisheries management organisations to this end. Regional fisheries

management organisations perform multiple functions, such as: • allocation of TAC, • adoption of conservation measures,

fication of data, promotion of scientific research, and

• collection and veri •

• monitoring of compliance with agreed rules, standards and conservation measures.

Arguably, participation in regional

28

fisheries bodies is one method of ful filling the obliga-

tion to cooperate in the conservation of the living resources of the high seas. Articles 117 and 118 contain no speci

29

fic guidance describing how the cooperation shall

be performed, and how it is possible to judge whether or not such an obligation has been breached. Even if some States reach agreement with respect to the conservation of living resources in the high seas, the accord may be at the mercy of new entrants. Overall, the normative implementation of these provisions seems to remain modest. However, it is not suggested that the obligation has no normative force. As the ICJ ruled in the 2010 Pulp Mills on the River Uruguay case, ‘ the mechanism for co-operation between States

is

governed

by

the

principle

of

good

30

faith’ .

Furthermore,

Article

26

of

the

1969 Vienna Convention on the Law of Treaties, which represents customary international law, provides: ‘ Every treaty in force is binding upon the parties to it and must be performed by them in good faith.’

31

Hence one can say that an arbitrary rejection to cooperate on the

high seas is contrary to Articles 117 and 118, and the principle of good faith.

3.4 Limits of the Zonal Management Approach

An essential limitation associated with the zonal management approach involves the divergence of the law and nature. In the law of the sea, as noted, the spatial ambit of

28

J. Harrison, Saving the Oceans through Law: The International Legal Framework for the Protection of the

Marine Environment (Oxford University Press, 2017), p. 182. 29

UNDOALOS, The Law of the Sea: The Regime for High-Seas Fisheries, Status and Prospects (New York, United Nations, 1992), p. 26, para. 78.

30 31

Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay), ICJ Reports 2010, p. 47, para. 145. The ICJ regarded this provision as a rule of customary international law. Ibid.

289

Conservation of Marine Living Resources

fined on the basis of distance from the

coastal State jurisdiction over marine spaces is de

coast, irrespective of the nature of the ocean and the natural resources within it. By using the distance criterion, the ecological interactions between marine species as well as the ecological conditions of the physical surroundings are to be ignored. As a consequence, the spatial scope of man-made jurisdictional zones does not always correspond to the ‘ ecologically de

fined space

32

’ which comprises the area where marine ecosystems extend.

Several species, such as straddling and highly migratory species, do not respect arti

ficial

boundaries. Hence a clear-cut distinction between marine spaces under the coastal State’ s jurisdiction and marine spaces beyond such a jurisdiction is not always suitable for the conservation of those species. This question had already been raised in the 1893

Bering Sea Fur-Seals

Arbitration

between Great Britain and the United States. In this case, the United States extended its national jurisdiction beyond the ordinary 3-mile limit in order to protect fur-seals frequenting the islands of the United States in the Bering Sea, while Great Britain advocated the strict application of the freedom of the high seas. The Arbitral Tribunal rejected the claim of the United States on this matter. At the same time, however, the Tribunal determined regulations applicable to both parties, including the prohibition of the hunting of fur-seals within a zone of 60 miles around the Pribilov Islands.

33

In so doing, the Arbitral Tribunal attempted to

fishing States and the need for conservation of marine species. The Bering Sea Fur-Seals dispute demonstrates the difficulty of the conserreconcile the interest of the distant-water

vation of marine species migrating between marine spaces under and beyond national jurisdiction. Yet it appears that the situation is not very much improved in the LOSC.

4 CONSERVATION OF MARINE LIVING RESOURCES UNDER THE LOSC (2): THE SPECIES-SPECIFIC APPROACH The LOSC speci 35

stocks,

fies rules applicable to conservation of shared fish stocks,

34

36

highly migratory species,

ous species

39

and sedentary species.

37

marine mammals,

40

straddling 38

anadromous stocks,

According to the species-speci

fish

catadrom-

fic approach, conser-

vation measures are to be determined according to each category of marine species.

4.1 Shared and Straddling Fish Stocks Article 63 contains the following rules respecting conservation of shared and straddling

fish

stocks:

32

L. Juda, ‘Considerations in Developing a Functional Approach to the Governance of Large Marine Ecosystems’ (1999) 30

33

J. B. Moore,

ODIL ,

p. 93.

History and Digest of the International Arbitrations to which the United States Has Been a Party,

fi ce, 1898), p. 949.

vol. I (Washington DC, Government Printing Of 34 38 40

35

LOSC, Article 63(1). LOSC, Article 66.

39

LOSC, Article 63(2).

36

LOSC, Article 64.

37

LOSC, Article 65.

LOSC, Article 67.

LOSC, Article 68. Sedentary species are discussed in Chapter 4, section 4.7 of this book.

290 Protection of Community Interests at Sea

1.

Where the same stock or stocks of associated species occur within the exclusive economic zones of two or more coastal States, these States shall seek, either directly or through appropriate subregional or regional organizations, to agree upon the measures necessary to co-ordinate and ensure the conservation and development of such stocks without prejudice to the other provisions of this Part.

2.

Where the same stock or stocks of associated species occur both within the exclusive economic zone and in an area beyond and adjacent to the zone, the coastal State and the States

fi

shing for such stocks in the adjacent area shall seek, either directly or through

appropriate subregional or regional organisations, to agree upon the measures necessary for 41

the conservation of these stocks in the adjacent area.

This provision calls for three observations. First, the word ‘ seek’ seems to suggest that there is no obligation that States shall reach agreement. According to ITLOS, the obligation to ‘seek to agree’ under Article 63(1) is a ‘ due diligence ’ obligation that must be implemented in good faith pursuant to Article

300 of the LOSC. reach agreement.

42

43

fic

Article 63 contains no speci

recourse in the case of inability to

fish stocks, a difficulty in reaching a conserfishing States remains and high seas fishing States reach agreement

In the case of straddling

vation agreement will be increased where the number of potential indeterminate.

44

Even if the coastal States

pursuant to Article 63(2), there is a risk that the accord may be undermined by new entrants.

45

Second, a crucial issue in relation to the conservation of shared and straddling

fish stocks

involves the question as to how it is possible to allocate those stocks between the States concerned. Yet Article 63(2) contains no substantive guideline on this matter. Third, a further issue is how it is possible to coordinate national measures with respect to conservation of the shared and straddling

fish

stocks. However, Article 63 provides no

substantive guidance on this matter. Article 63 also remains silent with regard to compatibility of measures between the EEZs of the neighbouring States or between the EEZ and the high seas. Overall, Article 63 seems to contain only a minimum rule relating to the conservation of shared and straddling

41

fish stocks.

fi sh stocks under para. 1 of Article 63 may be called shared fish stocks . FAO fines straddling fish stock as stock which occurs both within the EEZ and in an area beyond and

For the purpose of this chapter, Glossary de

‘

’

‘

adjacent to the EEZ’; available at: www.fao.org/faoterm. 42

Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC) (hereinafter 2015 ITLOS Advisory Opinion), Advisory Opinion of 2 April 2015, ITLOS Reports 2015, pp. 59–60, para. 210.

43 44

Davies and Redgwell, ‘The International Legal Regulation’, p. 236. O. Thébaud, ‘Transboundary Marine Fisheries Management: Recent Developments and Elements of Analysis’ (1997) 21 Marine Policy , p. 241.

45

W. T. Burke, ‘Unregulated High Seas Fishing and Ocean Governance’, in J. M. Van Dyke, D. Zaelke and G. Hewison (eds.), Freedom for the Seas in the 21st Century: Ocean Governance and Environmental Harmony (Washington DC, Island Press, 1993), p. 240.

291

Conservation of Marine Living Resources

4.2 Highly Migratory Species

While there is no de listed in Annex I. speci

fically

46

finition of highly migratory fish stocks in the LOSC, these species are Yet Annex I is confusing since it contains some cetaceans which are

addressed by Article 65 of the LOSC. In this regard, it has been argued that 47

Article 64 operates as lex generalis, while Article 65 is lex specialis .

fisheries conser-

In relation to conservation of highly migratory species, ITLOS held that ‘

vation and management measures, to be effective, should concern the whole stock unit over 48

its entire area of distribution or migration routes ’ .

This necessitates international cooper-

ation. Article 64(1) thus provides:

The coastal State and other States whose nationals

fish in the region for the highly migratory

species listed in Annex I shall cooperate directly or through appropriate international organizations with a view to ensuring conservation and promoting the objective of optimum utilization of such species throughout the region, both within and beyond the exclusive economic zone. In regions for which no appropriate international organization exists, the coastal State and other States whose nationals harvest these species in the region shall cooperate to establish such an organization and participate in its work.

Unlike Article 63, this provision places a clear obligation upon States to cooperate in conservation and promoting the objective of optimum utilisation of these species in the EEZ as well as on the high seas.

49

fic fic

However, like Article 63, Article 64(1) contains no speci

mechanism ensuring cooperation in this matter. Nor does this provision hold speci

guidance with respect to the question how catches of highly migratory species can be allocated between the coastal State and States

fishing on the high seas. Overall, it may have

to be accepted that the normativity of Article 64(1) remains modest.

4.3 Marine Mammals

(a) General Considerations Marine mammals are warm-blooded animals which are characterised by the production of milk in the female mammary glands and spend the majority of their lives in or close

46 47

The list includes various species of tuna, marlin, sail

fish, swordfish, dolphin, shark and cetacean.

Virginia Commentary, vol. 2, p. 658; P. W. Birnie, ‘Marine Mammals: Exploiting the Ambiguities of Article 65 of the Convention on the Law of the Sea and Related Provisions: Practice under the International Convention for the Regulation of Whaling’, in D. Freestone, R. Barnes and D. Ong (eds.), The Law of the Sea:

Progress and Prospects (Oxford University Press, 2006), p. 274; J. Harrison and E. Morgera, ‘Article 64’, in A. Prölss (ed.), United Nations Convention on the Law of the Sea: A Commentary (Munich, Beck/Oxford, Hart Publishing/Baden-Baden, Nomos, 2017), p. 516. 48 49

2015 ITLOS Advisory Opinion, ITLOS Reports 2015, p. 60, para. 214. L. Lucchini and M. V

œ

lckel, Droit de la mer , vol. 2, Navigation et Pêche (Paris, Pedone, 1996), p. 503; R. C.

Raigón, ‘La pêche en haute mer’, in D. Vignes, G. Cataldi and R. C. Raigón, Le droit international de la pêche

maritime (Brussels, Bruylant, 2000), p. 216. See also 2015 ITLOS Advisory Opinion, ITLOS Reports 2015, pp. 59–60, para. 210 and pp. 65 –69, para. 219(6).

292 Protection of Community Interests at Sea to the sea.

50

fically

Speci

marine mammals include whales, small cetaceans, dolphins,

porpoises, seals, dugongs and marine otters. While, in the LOSC, some of these species are listed as highly migratory species and thus covered by Article 64, the key provision respecting the conservation of marine mammals is Article 65:

Nothing in this Part restricts the right of a coastal State or the competence of an international organization, as appropriate, to prohibit, limit or regulate the exploitation of marine mammals more strictly than provided for in this Part. States shall cooperate with a view to the conservation of marine mammals and in the case of cetaceans shall in particular work through the appropriate international organizations for their conservation, management and study.

This provision also applies to the conservation and management of marine mammals in the high seas pursuant to Article 120. Article 65 calls for three brief comments. First, this provision allows coastal States to regulate the exploitation of marine mammals more strictly than other living resources in the EEZ. However, it is not suggested that the coastal States are obliged to apply such a strict regulation. The coastal States have a discretion mammals.

to 51

determine

the

proper

regulation

respecting

the

exploitation

of

marine

52

Nor does Article 65 prohibit the exploitation of marine mammals.

Second, Article 65 does not specify the appropriate international organisations. In this regard, it is notable that the second sentence of Article 65 refers to ‘ organisations’ , in the plural. While undoubtedly the International Whaling Commission (IWC) is one of the organisations in the

field of the conservation and management of marine mammals, it is not suggested

that the IWC is the only appropriate organisation. In fact, the UN Division for Ocean Affairs and the Law of the Sea (UNDOALOS) lists the FAO, IWC and UNEP as being international organisations under Article 65.

53

The North Atlantic Marine Mammal Commission (NAMMCO) may

also be considered as an appropriate international organisation in this

field.

fi-

Third, the obligation to ‘ work through’ an appropriate organisation needs further clari

cation. On the one hand, it appears extreme to consider that coastal States must become a member of the relevant international organisation, or that they must accept the regulatory measures of a certain international organisation with regard to conservation of marine mammals.

54

On the other hand, it is equally unreasonable to argue that the ‘ work through’ 55

obligation in Article 65 provides a merely hortatory duty without substantive meaning.

Arguably it is necessary to interpret this provision so as to give it its fullest weight and effect consistent with the normal sense of the words and with other parts of the text pursuant to the principle of effectiveness.

50 51

A. Prölss, ‘Marine Mammals’, in Max Planck Encyclopedia, para. 1. T. L. McDorman, ‘Canada and Whaling: An Analysis of Article 65 of the Law of the Sea Convention’ (1998) 29 ODIL, p. 182.

52 53 54

Birnie et al., International Law and the Environment, p. 724. UNDOALOS (1996) 31 Law of the Sea Bulletin p. 82; McDorman, ‘Canada and Whaling’, p. 185. Prölss, ‘Marine Mammals’, p. 4, para. 14.

55

McDorman, ‘Canada and Whaling’, p. 184.

293

Conservation of Marine Living Resources

T A B L E 7 . 1 R E G I O N A L T R E A T I E S C O N C E R N I N G C O N SE R V A T I O N O F MARINE MAMMALS

Year

Title 56

1971

Agreement on Sealing and the Conservation of the Seal Stocks in the Northwest Atlantic

1972

Convention for the Conservation of Antarctic Seals

1973

Agreement on the Preservation of Polar Bears

1990

Agreement on the Conservation of Seals in the Wadden Sea

1991

Agreement on the Conservation of Small Cetaceans of the Baltic, North-East Atlantic, Irish and North Seas (ASCOBANS)

1992

57

58

59

60

Agreement on Cooperation in Research, Conservation and Management of Marine Mammals in the North Atlantic

1996

61

Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area (ACCOBAMS)

1999

62

Agreement Concerning the Creation of a Marine Mammal Sanctuary in the Mediterranean

63

The LOSC is not the only convention dealing with the conservation of marine mammals. At the global level, the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) indirectly involves this subject by controlling and preventing international commercial trade in endangered species, including many marine mammals, or their products. At the regional level, there are several treaties respecting conservation of marine mammals (see Table 7.1).

(b) Whaling The most debatable issue in relation to the conservation of marine mammals may be whaling.

64

ficant

The use of modern methods of catching whales in the 1860s led to a signi

increase in the number of whales killed annually. the

56 57 58 59

Rapporteur

870

65

In his report of 1925, José León Suárez,

of the Committee of Experts of the League of Nations, indicated that the

UNTS UNTS ILM

, p. 85. Entered into force 22 December 1971.

1080

, p. 175. Entered into force 11 March 1978.

(1974) 12

, p. 13. Entered into force 26 May 1976.

Entered into force 1 October 1991. The text is available at: www.jus.uio.no/english/services/library/treaties/ 06/6-05/seals-Wadden.xml.

60

1772

UNTS

, p. 217. Entered into force 29 March 1994. Originally ASCOBANS was concluded in 1991 as the

Agreement on the Conservation of Small Cetaceans of the Baltic and North Sea under the auspices of the Convention on Migratory Species. In February 2008, an extension of the agreement area came into force and the name was changed into ‘Agreement on the Conservation of Small Cetaceans of the Baltic, North East Atlantic, Irish and North Seas’. See the website of ASCOBANS, www.ascobans.org/en/legalinstrument/ ascobans. 61 62 63 64

1945 2183 2176

UNTS UNTS UNTS

, p. 3. Entered into force 1 January 1999. , p. 303. Entered into force 1 June 2001. , p. 247. Entered into force 21 February 2002.

Generally on this subject, see M. Fitzmaurice,

Whaling and International Law

(Cambridge University Press,

2015). 65

L. L. Leonard, ‘Recent Negotiations Toward the International Regulation of Whaling ’ (1941) 35

AJIL

, p. 93.

294 Protection of Community Interests at Sea modern whaling industry was rapidly exterminating the whale.

66

To address this problem,

in 1930 the Economic Committee of the League of Nations convened a meeting of a Committee of Experts in Berlin. The meeting drafted an international convention relating to the regulation of whaling. On the basis of the draft, in 1931 the Convention for the Regulation of Whaling was concluded in Geneva.

67

This was the

first multilateral conven-

tion regulating whaling. However, the scope of the obligations set out in the 1931 Whaling Convention was limited in the sense that under Article 2, the Convention applied only to whalebone whales. Furthermore, the contents of the obligations remained rather vague. For the majority of States, the Convention merely purported to protect the interests of whaling States by preventing the unsustainable taking of whales.

68

Since the 1931 Convention was

ineffective in the protection of whales, the International Agreement for the Regulation of Whaling, along with the Final Act, was subsequently adopted in 1937. the 1937 Agreement were further ampli

fied

69

The provisions of

by the Protocol Amending the International

Agreement signed at London on 24 June 1938.

70

As clearly stated in the Preamble of the 1937 Agreement, the aim of the regulation of whaling was to secure the ‘prosperity of the whaling industry and, for that purpose, to 71

maintain the stock of whales ’ .

It may be said that the whale treaties re

flected

two

requirements that are not easily reconciled: the prosperity of the whaling industry and the need for the conservation of whales. The two elements were succeeded by the International Convention for the Regulation of Whaling of 2 December 1946 (hereinafter the 1946 Whaling Convention).

72

In fact, the

1946 Whaling Convention, in its Preamble, refers to ‘ the proper conservation of whale stocks ’ and ‘the orderly development of the whaling industry ’ at the same time. The tension between the two elements constitutes a major challenge in the regulation of whaling. The 1946 Whaling Convention applies to all waters in which whaling is prosecuted by factory ships, land stations and whale catchers pursuant to Article I(2). Under Article I(1), the Convention includes the Schedule attached thereto which forms an integral part thereof. The Schedule provides speci

fic measures relating to the conservation of whales.

The principal organ of the Convention is the IWC. The IWC is open to any States that are parties to the Convention. The Commission is entitled to make recommendations to any or all contracting governments on any matters which relate to whales or whaling and to the

66 67

José León Suárez, ‘Report on the Exploitation of the Products of the Sea’ (1926) 20 AJIL Supplement, p. 235. 155 League of Nations Treaty Series (LNTS), p. 349; (1936) 30 AJIL Supplement, p. 167. Entered into force 16 January 1935.

68 69

Fitzmaurice, Whaling and International Law, p. 18; Leonard, ‘Recent Negotiations ’, p. 100. 190 LNTS , p. 79; (1940) 34 AJIL Supplement, p. 106. Entered into force 7 May 1938. Further, see Fitzmaurice,

Whaling and International Law, pp. 17–23. 70

Text in: 196 LNTS, p. 131; (1940) 30 AJIL Supplement, pp. 115 –125. See also Fitzmaurice, Whaling and

International Law, pp. 25–26. 71

The Final Act also stressed that the regulations set out in the 1937 Agreements were to contribute to ‘the maintenance of the stocks of whales and to the prosperity of the whaling industry’. AJIL Supplement, p. 114. See also Fitzmaurice, Whaling and International Law , p. 9; Leonard, ‘Recent Negotiations ’, p. 96.

72

161 UNTS, p. 72. Entered into force 10 November 1948.

295 Conservation of Marine Living Resources objectives and purposes of the Convention by virtue of Article VI. The recommendations are not binding. Under Article V(1), the IWC may amend the provisions of the Schedule by adopting regulations

fixing

(a) protected and unprotected species, (b) open and closed

seasons, (c) open and closed waters, (d) size limits for each species, (e) time, (f ) types and speci

fications

of gear and apparatus and appliances which may be used, (g) methods of

measurement, (h) catch returns and other statistical and biological records, and (i) methods of inspection. A three-quarters majority of those members voting shall be required to amend the provisions of the Schedule pursuant to Article III(2). Amendments of the Schedule are to be effective with respect to the contracting governments ninety days following noti

fication of the amendment by the Commission to each of

the contracting governments. According to the objection procedure set out in Article V(3), however, if any government presents to the IWC an objection to any amendment within ninety days of noti

fication, the amendment shall not become effective with respect to any

of the governments for an additional ninety days. Thereupon, any other contracting governments may present an objection to the amendment at any time prior to the expiration of the additional ninety days, or before the expiration of thirty days from the date of receipt of the last objection received during such additional ninety-day period. The amendment in question is not binding upon the objecting States. In 1982, the IWC adopted a moratorium on commercial whaling on all whale stocks from the 1985/86 whaling season, and the USSR.

74

73

while the moratorium was opposed by Japan, Norway, Peru

The moratorium is still in force today. Furthermore, the IWC established

the Indian Ocean Sanctuary in 1979

75

and the Southern Ocean Sanctuary in 1994.

76

These

whale sanctuaries cover an area of approximately 100 million square kilometres, which 77

corresponds to approximately 30 per cent of the world ’s oceans.

The duration of the

Indian Ocean Sanctuary was initially established for a ten-year period, and, later, was declared inde inde

finite.

78

finite,

while the duration of the Southern Ocean Sanctuary was

ab initio

In 1994, the Commission accepted a Revised Management Procedure (RMP)

but has yet to implement it.

73

Paragraph 10(e) of the Schedule. However, para. 13 of the Schedule exempts aboriginal subsistence whaling from the moratorium. As a consequence, Denmark (Greenland), Russia, the United States and Saint Vincent and the Grenadines are allowed to conduct aboriginal subsistence whaling. J. Braig, ‘Whaling’, in

74

Planck Encyclopedia, para. 36.

Max

Peru withdrew its objection in 1983. In 1987 and 1988, Japan withdrew its objection to the moratorium because of pressure from the United States. The objections of Norway and the Russian federation have not been withdrawn. Thus para. 10(e) is not binding upon these States. See a footnote attached to para. 10(e) of the Schedule. Norway resumed commercial whaling in 1993. Churchill and Lowe,

the Sea, pp. 317

Law of

–318. In addition, Iceland continues commercial whaling. See the website of the IWC,

https://iwc.int/commercial. 75 77

Rule 7(a) of the Schedule.

76

Rule 7(b) of the Schedule.

E. Morgera, ‘Whale Sanctuaries: An Evolving Concept within the International Whaling Commission’ (2004)

ODIL, p. 333. Ibid., p. 322. The Russian Federation lodged an objection to the Southern Ocean Sanctuary, but withdrew it 35

78

on 26 October 1994. International Convention for the Regulation of Whaling, 1947, Schedule 2018, p. 3.

296 Protection of Community Interests at Sea (c) The Legality of Scienti

fic Whaling

An issue that needs particular consideration is the legality of scienti

fic whaling. A leading 79

case in this matter is the 2014 Whaling in the Antarctic case between Australia and Japan.

Article VIII of the 1946 Whaling Convention allows the contracting governments to carry out scienti

fic

fic

whaling. Japan has carried out, or claims to have carried out, scienti

fic

whaling in accordance with Article VIII. However, Japan’ s scienti

whaling has invited

criticisms with regard to, inter alia, (i) the lethal nature of the research programme, (ii) the size of its research catch, and (iii) the ultimate commercial sale of whale products derived from scienti

fic

hunts.

80

Thus, on 31 May 2010, Australia instituted proceedings against

Japan before the ICJ that put in issue the legality of Japanese scienti

fic whaling.

81

The central issue before the Court was whether or not the special permits granted in relation to JARPA II, a Japanese scienti

fic whaling programme, would fall within the scope

of Article VIII(1) of the 1946 Whaling Convention.

82

Under this provision, any contracting

government may grant to any of its nationals a special permit authorising that national to

fic research subject to such restrictions as fit. In this regard, Australia alleged that JARPA II was not a programme for purposes of scientific kill, take and treat whales for purposes of scienti

to number and subject to such other conditions as the contracting government thinks

research within the meaning of Article VIII of the Whaling Convention and that Japan had breached and continued to breach certain of its obligations under the Schedule to the Convention. In contrast, Japan contested all the alleged breaches of its obligations under the Convention.

83

In approaching this issue, the ICJ particularly considered whether the killing, taking and

fic research, by examining whether, in the

treating of whales was ‘for purposes of ’ scienti

use of lethal methods, the programme ’s design and implementation were reasonable in relation to achieving the stated objectives of JARPA II.

84

In its judgment of 31 March 2014,

the Court found that the special permits granted by Japan in connection with JARPA II did not fall within the provisions of Article VIII(1) of the Whaling Convention and that Japan violated its obligations with regard to: (i) the moratorium setting zero catch limits for the killing of whales from all stocks for commercial purposes (paragraph 10(e) of the Schedule to the Whaling Convention), (ii) the factory ship moratorium (paragraph 10(d) of the Schedule), and (iii) the prohibition on whaling in the Southern Ocean Sanctuary (paragraph 7(b) of the Schedule). It therefore decided that Japan should revoke any extant authorisation granted in relation to JARPA II and refrain from granting any further permits in pursuance of that programme. On the other hand, the Court found that Japan had complied with its obligation under paragraph 30 of the Schedule to the Whaling Convention, which

79 80

Whaling in the Antarctic (Australia v Japan, New Zealand Intervening), ICJ Reports 2014, p. 226.

fic Research Whaling in International Law: Objectives and Objections

H. S. Schiffman, ‘Scienti

’ (2001– 2002)

8 ILSA Journal of International and Comparative Law, p. 476. 81 82

Application Instituting Proceedings, 31 May 2010.

Whaling in the Antarctic, ICJ Reports 2014, p. 254, para. 69. See also Separate Opinion of Judge Greenwood, para. 1.

83

Judgment, ibid., p. 249, paras. 48– 49.

84

Ibid., p. 254, para. 67.

297 Conservation of Marine Living Resources requires contracting governments to make proposed permits available to the IWC Secretary before they are issued in suf Committee.

ficient time to permit preview and comment by the Scientific

85

The Whaling in the Antarctic case highlights two points. The

first

point concerns the

increasing importance of the interplay between law and science in the settlement of international

disputes

concerning

marine

living

resources.

86

As

demonstrated

in

the

Whaling in the Antarctic judgment, science can constitute a key element in international adjudication relating to the conservation of marine living resources. Thus particular attention must be paid to the issues of science in the judicial settlement of this type of dispute. The second point relates to the role of international adjudication in the protection of

flected in treaties. In this regard, it is of particular interest to note that Australia suffered no damage from Japan s scientific whaling programme. According to a common interests re

’

Counsel for Australia, ‘Australia is seeking to uphold its collective interest, an interest it 87

shares with all other parties’ .

Therefore, it can be considered that Australia referred the 88

dispute to the ICJ in response to the breach of obligations erga omnes partes by Japan.

The

ICJ, in the Whaling in the Antarctic case, accepted the standing of Australia. In so doing, the Court would assume the role of an organ in the protection of a common interest re

flected in obligations erga omnes partes. Although further development of case law is needed to draw more general conclusions,

the Whaling in the Antarctic case appears to hint that the ICJ would accept standing in response to the alleged breach of obligations erga omnes partes, if it can establish its jurisdiction.

89

This would open the way to protect a common interest re

flected in treaties

through international adjudication.

85

Ibid., pp. 298–300, para. 247. After the Whaling in the Antarctic judgment, Japan decided to develop the New

fic Whale Research Program in the Antarctic Ocean (NEWREP-A). NEWREP-A was submitted to the fi c Committee and the IWC Secretariat in November 2014. See www.mofa.go.jp/ecm/fsh/page4e_

Scienti

IWC Scienti

000357.html; www.icrwhale.org/NEWREP-AProtocol.html. NEWREP-A has been implemented since 2015. See also D. R. Rothwell and T. Stephens, The International Law of the Sea, 2nd edn (Oxford, Hart Publishing, 2016), pp. 335–336. On 26 December 2018, Japan decided, with commercial whaling to be resumed in July 2019, to withdraw from the 1946 Whaling Convention pursuant to Article 11 of the Convention. Statement by Chief Cabinet Secretary, 26 December 2018, available at: www.mofa.go.jp/ecm/fsh/page4e_000969.html. 86

Further, see Y. Tanaka, ‘Toward Sustainable Management of Marine Natural Resources ’, in M. Kotzur et al. (eds.), Sustainable Ocean Resource Governance: Deep Sea Mining, Marine Energy and Submarine Cables (Leiden, Nijhoff, 2018), pp. 122 et seq.

87

Presentation by Burmester, Verbatim Record, CR 2013/18, 9 July 2013, p. 28, para. 19. See also presentation by Boisson de Chazournes, ibid., pp. 33–34, paras. 18– 20.

88

Fitzmaurice, Whaling and International Law, pp. 109 –110; J. Crawford, ‘Responsibility for Breaches of Communitarian Norms: An Appraisal of Article 48 of the ILC Articles on Responsibility of States for Internationally Wrongful Acts’, in U. Fastenrath et al. (eds.), From Bilateralism to Community Interest: Essays in Honour of Judge Bruno Simma (Oxford University Press, 2011), p. 236. In accordance with Article 1(b) of the 2005 Resolution of the Institut de droit international, an obligation erga omnes partes means ‘an obligation under a multilateral treaty that a State party to the treaty owes in any given case to all the other States parties to the same treaty, in view of their common values and concern for compliance, so that a breach of that obligation enables all these States to take action’. Institut de droit international, Resolution: Obligation Erga Omnes in International Law, Krakow Session 2005, available at: www.idi-iil.org/app/uploads/2017/06/2005_kra_01_en.pdf.

89

Article 3 of the 2005 Resolution of the Institut de droit international accepted standing of not directly injured States in response to the breach of obligations erga omnes. See also Article 48(1) of the International Law

298

Protection of Community Interests at Sea

4.4 Anadromous Stocks

Anadromous species are species, such as salmon, shad and sturgeon, which spawn in fresh water but spend most of their life in the sea.

90

Owing to the high commercial value of

anadromous stocks, Article 66 of the LOSC contains rules with regard to the conservation of these stocks in some detail. These rules can be divided into three rubrics. (i) Conservation and management of anadromous stocks: Article 66(1) of the LOSC stipulates that the State in whose rivers such

fish spawn (the State of origin) is primarily

responsible for their management and shall take appropriate regulatory measures to ensure their conservation. Article 66(2) then places an obligation upon the State of origin of anadromous

stocks

to

ensure

regulatory measures for for

their

conservation

by

the

establishment

of

appropriate

fishing in all waters landward of the outer limits of its EEZ and

fishing provided for in paragraph 3(b). The State of origin may establish TACs for stocks

originating in its rivers pursuant to Article 66(2). The word ‘ may’ implies that this is permissive, not mandatory. In cases where anadromous stocks migrate into or through the waters landward of the outer limits of the EEZ of a State other than the State of origin, such State is obliged to cooperate with the State of origin with regard to the conservation and management of such stocks in accordance with Article 66(4). (ii) Fishing of anadromous stocks: Under Article 66(3),

fishing

for anadromous stocks

must be conducted only in waters landward of the outer limits of EEZs, except where this would result in economic dislocation for a State other than the State of origin. It follows

fishing of anadromous species beyond 200-nautical-mile limits is forbidden. With respect to such fishing beyond the outer limits of the EEZ, States concerned are that in principle,

obliged to maintain consultations with a view to achieving agreement on terms and conditions of such

fishing

giving due regard to the conservation requirements and the

needs of the State of origin in respect of these stocks in conformity with Article 66(3)(a). The State of origin is also required to cooperate in minimising economic dislocation in such other States

fishing these stocks by virtue of Article 66(3)(b). Enforcement of regulations

regarding anadromous stocks beyond the EEZ must be by agreement between the State of origin and the other State concerned under Article 66(3)(d). (iii) Regional organisations: Article 66(5) requires the State of origin of anadromous stocks and other States

fishing these stocks to make arrangements for the implementation

of the provisions of Article 66, where appropriate, through regional organisations. An example of such organisations is the North Atlantic Salmon Conservation Organization (NASCO), which was established in 1984 by the 1982 Convention for the Conservation of

Commission (ILC)’s Articles on Responsibility of States for Internationally Wrongful Acts, Yearbook of the International Law Commission, 2001, vol. II (Part Two). Reproduced in J. Crawford, The International Law Commission’ s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge University Press, 2002), pp. 61 et seq. 90

LOSC, Article 66.

299

Conservation of Marine Living Resources Salmon in the North Atlantic Ocean.

91

fishing of salmon is prohibited not fisheries jurisdiction of coastal States beyond

With exceptions,

only on the high seas but also within areas of

12 nautical miles pursuant to Article 2 of the Convention. Conservation of anadromous stocks is also regulated by regional treaties. The 1992 Convention for the Conservation of Anadromous Stocks in the North Paci example.

92

fic

Ocean is an

The Parties to the Convention are Canada, Japan, Russia and the United States,

which are major States of origin of North Paci

fic salmon. The 1992 Convention confirmed,

in its Preamble, the primary interest and responsibility of the State of origin in the conservation of anadromous stocks. Article III(1)(a) prohibits directed high seas. The Convention established the North Paci

fic

fishing for salmon on the

Anadromous Fish Commission

under Article VIII(1). The Commission is entitled to, inter alia, recommend to the Parties measures for the conservation of anadromous stocks and ecologically related species in the Convention Area, promote the exchange of information, review and evaluate enforcement actions taken by the Parties, and cooperate with relevant international organisations to obtain the best available information pursuant to Article IX. At the bilateral level, a treaty between the government of Canada and the government of the United States of America concerning Paci

fic

93

Salmon was concluded in 1985.

The

Treaty recognises, in its Preamble, the primary interest and responsibility of States of origin. Under Article III(1), each Party is under the obligation to conduct its

fisheries and its salmon

fishing and provide for optimum fits equivalent to the production of salmon originating in its waters. The Treaty established a Paci fic Salmon Commission. enhancement programmes so as to (a) prevent over

production, and (b) provide for each Party to receive bene

The Commission may make recommendations to the Parties on any matter relating to the Treaty by virtue of Article II(8). Overall the treaty practice appears to support the primary interest and responsibility of the State of origin and the prohibition of

fishing of

anadromous stocks on the high seas.

4.5 Catadromous Species

Catadromous species are species, such as the eel, which spawn in the ocean and migrate to fresh water for most of their lives before returning to the ocean to reproduce. The life cycle 94

of catadromous species is the opposite of the life cycle of anadromous species.

Under Article 67(1) of the LOSC, a State in whose waters catadromous species spend the greater part of their life cycle (the host State) has overall management responsibility for the management of these species and is required to ensure the ingress and egress of migrating

fish. Harvesting of catadromous species shall be conducted only in waters landward of the outer limits of the EEZs pursuant to Article 67(2). It follows that the fishing of catadromous 91

Entered into force 1 October 1983. The text of the Convention is available at: www.nasco.int/pdf/ agreements/nasco_convention.pdf. The Member Parties of NASCO are: Canada, Denmark (in respect of the Faroe Islands and Greenland), the EU, Iceland, Norway, Russian Federation and the United States.

92 93

(1993) 22

Law of the Sea Bulletin, p. 21. Entered into force 16 February 1993. UNTS, p. 358. Entered into force 18 March 1985. Virginia Commentary, vol. 2, p. 681.

Text in: 1469

94

300 Protection of Community Interests at Sea species on the high seas is prohibited. Fishing of catadromous species on the high seas means the capture of juveniles, which is contrary to conservation policy. Hence, there is a good reason to prohibit

fishing of these species on the high seas.

When conducted in EEZs, harvesting is to be subject to Article 67 and the other provisions of the LOSC concerning catadromous

fish

fishing in the EEZs under Article 67(2). In cases where

migrate through the EEZ of another State, the management, including

harvesting, of such

fish

is to be regulated by agreement between the host State and the

other State concerned in accordance with Article 67(3). Such agreement must ensure the rational management of the species and take into account the responsibility of the host State for the maintenance of these species. It would follow that the harvesting of catadromous species by States other than the host State is not prohibited.

95

While Article 67(3)

provides no guidance with respect to the situation where the host State and the other State 4 concerned fail to reach an agreement on this matter, it seems at least arguable that Article 67(3) does not allow the host State to unilaterally exercise its jurisdiction in the EEZ of another State where catadromous

fish migrate.

96

Presently there are serious concerns over the overexploitation of glass eels in estuaries and yellow or silver eels in inland and coastal waters. glass eel

97

Thus there is a need to regulate

fishing and capture of yellow or silver eels in their growth habitat. Nonetheless,

Article 67 contains no rule on this matter. In order to conserve catadromous species, it is important to protect the aquatic environment (rivers and lakes) and the marine environment at the same time since these species spend their life in both freshwaters and the oceans.

98

Thus more integrated management of the marine and aquatic environment seems

to be increasingly needed.

4.6 Limits of the Species-Specific Approach At least two limitations must be highlighted with regard to the species-speci

fic approach.

First, rules of the LOSC governing conservation of marine species do not cover all species that need particular conservation measures. For instance, the LOSC comprises no provision in relation to deep-sea species. Due to their exceptional longevity, slow growth, delayed maturity and low productivity, deep-sea species are highly vulnerable to

fishing activities.

Hence arguably these species will need particular conservation measures.

95 97

Ibid.

96

99

100

Raigón, ‘La pêche en haute mer’, p. 231.

The European Eel (Anguilla anguilla) has been listed as Critically Endangered and the Japanese Eel (Anguilla japonica) has been listed as Endangered in the IUCN Red List. For more information, see www .iucnredlist.org/. The European Eel is also listed in Appendix II of CITES.

98 99

100

The same applies to the conservation of anadromous species. J. A. Koslow et al., ‘Continental Slope and Deep-Sea Fisheries: Implications for a Fragile Ecosystem’ (2000)

ICES Journal of Marine Science, p. 550; L. A. Kimball, ‘Deep-Sea Fisheries on the High Seas: The Management Impasse’ (2004) 19 IJMCL, pp. 261 –263.

See the 2008 International Guidelines for the Management of Deep-Sea Fisheries in the High Seas, available at: www.fao.org/

fishery/topic/166308/en.

301

Conservation of Marine Living Resources Second, a more fundamental limitation involves the lack of ecological consideration. The species-speci

fic approach does not adequately take account of the ecological interactions

between marine species as well as the ecological conditions that support them. While the LOSC contains a few provisions which take the interaction between marine species into account,

101

the interrelationship between marine species and marine ecosystems attracts

little attention in the LOSC. Overall it may be concluded that the traditional approaches are inadequate to properly conserve marine living resources.

5 DEVELOPMENT AFTER THE LOSC

In response to the limits of the traditional approaches, more conservation-orientated approaches are being developed in post-LOSC treaties with regard to conservation of those resources. This part will focus on three principal elements, namely, the concept of sustainable development, the ecosystem approach and the precautionary approach. These elements are closely intertwined. Particular focus should be on the normativity of these elements as a rule of conduct and a rule for adjudication.

102

5.1 The Concept of Sustainable Development

Sustainable development is a key concept in the use of natural resources, including marine living resources.

103

The basic idea for this concept can be seen in the 1972 Stockholm

Declaration of the UN Conference on the Human Environment, although the term ‘sustainable development’ was not used.

104

Later, the concept of sustainable development was

given currency by the Report of the World Commission on Environment and Development, ‘ Our Common Future ’. In its Report, the World Commission on Environment and Develop-

ment (hereinafter WCED) de

fined this concept as

‘ development that meets the needs of the

present without compromising the ability of future generations to meet their own needs ’.

101 102

105

Articles 61(4) and 119(1)(b). The distinction between a rule of conduct and a rule for adjudication was originally made by Eugen Ehrlich. E. Ehrlich, Fundamental Principles of the Sociology of Law (transl. W. L. Moll, Cambridge, MA, Harvard University Press, 1936), pp. 41 and 122 –123. This distinction is useful in examining the normativity of rules of international law, including the law of the sea.

103

For an analysis of the concept of sustainable development, see in particular, P. Sands, ‘International Law in the Field of Sustainable Development ’ (1994) 65 BYIL, pp. 303–381; N. Schrijver, The Evolution of Sustainable Development in International Law: Inception, Meaning and Status (Leiden, Brill/Nijhoff, 2008); Birnie et al., International Law and the Environment, pp. 123– 127; D. French, ‘Sustainable Development ’, in M. Fitzmaurice, D. M. Ong and P. Merkouris (eds.), Research Handbook on International Environmental Law (Cheltenham, Edward Elgar, 2010), pp. 51 –68.

104 105

See Principle 13. The World Commission on Environment and Development (WCED), Our Common Future (Oxford University Press, 1987), p. 43. See also International Law Association, New Delhi Declaration of Principles of International Law Relating to Sustainable Development. This document is available at: www.ila-hq.org/en/committees/index.cfm/cid/25.

302 Protection of Community Interests at Sea The reference to ‘ future generations’ suggests that the concept of sustainable development is inter-temporal by nature.

106

The concept of sustainable development seeks in essence to reconcile the need for development with environmental protection. The basic idea is echoed by the ICJ in the

Gabcíkovo-Nagymaros Project case

107

as well as the Arbitral Tribunal in the Arbitration 108

regarding the Iron Rhine Railway case of 2005.

Currently the concept of sustainable development or ‘ sustainable use’ is being increasingly incorporated into treaties and non-binding documents relating to the conservation of marine living resources. At the treaty level, for instance, Article 2 of the 1995 UN Fish Stocks Agreement stipulates that ‘[t]he objective of this Agreement is to ensure the longterm conservation and sustainable use of straddling

fish stocks and highly migratory fish

stocks through effective implementation of the relevant provisions of the Convention ’.

fishing on the high seas to adopt measures straddling fish stocks and highly migratory fish

Article 5(a) requires coastal States and States to ensure long-term sustainability of

‘

stocks and promote the objective of their optimum utilisation ’ . Article 5(h) further imposes upon coastal States and States prevent or eliminate over-

fishing

fishing

on the high seas the duty to ‘ take measures to

fishing and excess fishing capacity and to ensure that levels of fishery

effort do not exceed those commensurate with the sustainable use of

resources ’ . Concerning non-binding documents, the concept of sustainable development or sustainable use can be seen in Chapter 17 of Agenda 21 of 1992,

109

Responsible Fisheries (hereinafter the FAO Code of Conduct), on the Implementation of the Code

of Conduct

the 1995 Code of Conduct for

110

the 1999 Rome Declaration

for Responsible Fisheries

111

and the

2001 Reykjavik Declaration on Responsible Fisheries in the Marine Ecosystem.

112

One

can argue that sustainable development is the key concept orientating the behaviour of States in conservation of marine living resources. On the other hand, the concept of 113

sustainable development raises uncertainties as to its normativity.

First, while some writers attempt to enumerate relevant components of the concept, it appears that there is no uniform understanding on this matter. There remains considerable uncertainty as to the normative contents of the concept of sustainable development. The concept of sustainable development seems to be no more than a label for a set of various components of international environmental law at a high level of abstraction. However, the

106

Schrijver, The Evolution of Sustainable Development, pp. 208 –209; Separate Opinion of Judge Cançado Trindade in the Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay), ICJ Reports 2010, p. 185, para. 133.

107 108

ICJ Reports 1997, p. 78, para. 140. The Arbitration regarding the Iron Rhine Railway case (Belgium and the Netherlands), 27 RIAA, pp. 28–29, para. 59.

109 112

Agenda 21, para. 17.46; para. 17.75. Preamble and para. 2.

113

110

Article 7.2.1.

111

Paragraph 12(n).

Tanaka, A Dual Approach, pp. 71–75.

303

Conservation of Marine Living Resources label is itself not law.

114

Hence it seems debatable whether and to what extent this concept

can legally constrain the behaviour of States. Second, as the WCED Report stated, the concept of sustainable development ultimately requires a change in the quality and patterns of life. a State and, consequently, it appears dif

ficult

115

This is a matter of national policy of

fic

to a priori determine speci

measures to

achieve sustainable development in international law. If this is the case, it will be dif

ficult

for international courts and tribunals to review the validity of national action by applying the concept of sustainable development. Thus it is debatable whether the concept of sustainable development itself can be an independent rule for adjudication. However, the role of norms is not limited to their function as rules of conduct and/or rules for adjudication. Norms also perform an interstitial function to adjust overlapping or con

flicting

norms. It is in this area of norms that the normative force of the concept of

sustainable development should be sought. If sustainable development cannot be regarded as an independent rule for adjudication, nonetheless the concept of sustainable development can be taken into account as a judicial factor when interpreting rules governing the management of marine living resources, including relevant provisions of the LOSC, in the process of judicial reasoning.

116

5.2 The Ecosystem Approach

The ecosystem approach (or ecosystem-based approach) represents an important development of international law governing the conservation of marine living resources. While the

finition

de

of the ecosystem approach varies according to instruments, the Biodiversity

Committee of the 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR) de

fined this approach as:

the comprehensive integrated management of human activities based on the best available

fi fl

scienti on in

c knowledge about the ecosystem and its dynamics, in order to identify and take action

uences which are critical to the health of marine ecosystems, thereby achieving

sustainable use of ecosystem goods and services and maintenance of ecosystem integrity.

114

117

A. V. Lowe, ‘Sustainable Development and Unsustainable Arguments’, in A. Boyle and D. Freestone (eds.),

International Law and Sustainable Development: Past Achievements and Future Challenges (Oxford University Press, 1999), p. 26. 115 116

WCED, Our Common Future, p. 46. In this regard, So

fi a Guiding Statements explicitly state:

‘Treaties and rules of customary international law

should be interpreted in the light of principles of sustainable development. ’ ILA, Conference Resolution So

fia 2012,

fi a Guiding Statements on the Judicial Elaboration of the 2002 New Delhi

‘2012 So

Declaration of Principles of International Law Relating to Sustainable Development ’, para. 2, available at: www.ila-hq.org/en/committees/index.cfm/cid/1017. See also Lowe, ‘Sustainable Development’, p. 31 and pp. 34 –35; Tanaka, A Dual Approach, p. 75. 117

Meeting of the Biodiversity Committee (BDC), Dublin, 20 –24 January 2003, Summary Record BDC 2003, BDC 03/10/1-E, Annex 13, p. 1, para. 6.

304 Protection of Community Interests at Sea

fic

Unlike the traditional species-speci

approach, the ecosystem approach aims to con-

serve ecosystem structure and functioning within ecologically meaningful boundaries in an integrated manner. As the Report of the UN Secretary-General stated in 2006, distinguishing feature of the ecosystem approach is that it is

integrated and holistic,

‘[t]he

taking

account of all the components of an ecosystem, both physical and biological, of their 118

interaction and of all activities that could affect them ’ .

In this sense, this approach

constitutes a key element of the integrated management approach. The ecosystem approach has gained currency in various instruments relating to conservation of marine living resources. For example, the 1995 Fish Stocks Agreement clearly notes ‘the need to avoid adverse impacts on the marine environment, preserve biodiversity, maintain the integrity of marine ecosystems and minimize the risk of long-term or irreversible effects of and States

fishing operations . Article 5(g) thus places an obligation upon coastal States ’

fishing on the high seas to protect biodiversity in the marine environment.

Article 4(a) of the 2006 Southern Indian Ocean Fisheries Agreement clearly provides that ‘ measures shall be adopted on the basis of the best scienti

the long-term conservation of

fic evidence available to ensure

fishery resources, taking into account the sustainable use of 119

such resources and implementing an ecosystem approach to their management ’ .

As for

non-binding documents, the 1999 Rome Declaration on the Implementation of the Code of Conduct for Responsible Fisheries noted that ‘ greater consideration should be given to the development of more appropriate eco-system approaches to management ’.

120

fisheries

development and

The need to incorporate ecosystem considerations was also stressed by

the 2001 Reykjavik Declaration.

121

In relation to this, large marine ecosystems (LMEs) merit particular notice.

122

The LMEs

are regions of ocean space encompassing coastal areas from river basins and estuaries extending out to the seaward boundary of continental shelves and the seaward margins of coastal current systems. They are relatively large regions, approximately 200,000 square kilometres or larger, characterised by distinct bathymetry, hydrography, productivity and trophically dependent populations. Within the sixty-four LMEs, 95 per cent of the global marine capture

fisheries

are found.

123

LMEs can be considered as management units for

effective implementation of the ecosystem approach. In this connection, it is relevant to note that marine spatial planning is regarded as one of the tools to implement the ecosystem approach. Expansion of activities in the oceans will

118

Emphasis added. United Nations,

Report of the Secretary-General , Oceans and the Law of the Sea,

9 March 2006, p. 38, para. 136. 119 120 122

For the text of the Agreement, see

Of ficial Journal of European Union,

Paragraph 6 of the Rome Declaration.

121

A/61/63,

L 196/17, 18 July 2006.

Preamble.

See also L. Juda, ‘Considerations in Developing a Functional Approach to the Governance of Large Marine

ODIL , pp. 89– 125; L. Fanning et al., ‘A Large Marine Ecosystem Governance Marine Policy, pp. 434– 443; Rothwell and Stephens, The International Law of the Sea,

Ecosystems’ (1999) 30 Framework ’ (2007) 31

pp. 463 –465. LME is a concept developed by the United States National Oceanic and Atmospheric Administration (NOAA). See www.st.nmfs.noaa.gov/ecosystems/lme/. 123

K. Sherman, ‘Sustainability, Biomass Yields, and Health of Coastal Ecosystems: An Ecological Perspective’ (1994) 112

Marine Ecology Progress Series,

p. 280; A. M. Duda and K. Sherman, ‘A New Imperative for

Improving Management of Large Marine Ecosystems’ (2002) 45

Ocean and Coastal Management,

p. 802.

305 Conservation of Marine Living Resources inevitably lead to potential con

flicts

between the interest of existing marine uses and

protection of the marine environment, including conservation of marine living resources. To alleviate the con

flicts, marine spatial planning can be used. This is a process to balance

demands for development with the need to protect the marine environment, while taking account of social and economic objectives. It is aimed to establish a more rational use of marine space and the interaction between its uses.

124

While marine spatial planning is

normally implemented at the national level, it can also be done at the regional and/or international levels.

125

By way of illustration, the EU adopted the EU Framework Directive

for Maritime Spatial Planning in 2014.

126

Overall, it can be observed that international law concerning conservation of marine living resources has acquired a stronger ecological dimension with the emergence of the ecosystem approach. On the other hand, the ecosystem approach raises at least two issues which need further consideration.

127

fic measures under the ecosystem approach are to be determined taking various scienti fic, political, economic and social factors into account. This is in essence a matter of national policy. Accordingly, it will be dif ficult, if not impossible, for interFirst, speci

national courts and tribunals to judge the violation of the obligation to apply the ecosystem approach when the application of this approach has been disputed between States. It appears questionable whether the ecosystem approach can be an independent rule for adjudication. Second, a question arises with regard to compatibility of conservation measures on the basis of the ecosystem approach between marine spaces under and beyond national jurisdiction. This question is particularly at issue in relation to conservation of straddling and highly migratory species. In this respect, Article 7(2) of the 1995 Fish Stocks Agreement stipulates:

Conservation and management measures established for the high seas and those adopted for areas under national jurisdiction shall be compatible in order to ensure conservation and management of the straddling

fi

sh stocks and highly migratory

this end, coastal States and States

fi

fi

sh stocks in their entirety. To

shing on the high seas have a duty to cooperate for the

purpose of achieving compatible measures in respect of such stocks.

States are thus obliged to make every effort to agree on compatible conservation and management measures within a reasonable period of time pursuant to Article 7(3). In

124

F. Maes, ‘The International Legal Framework for Marine Spatial Planning’ (2008) 32

Marine Policy

,

pp. 797 –798; N. Soininen and D. Hassan, ‘Marine Spatial Planning as an Instrument of Sustainable Ocean Governance’, in D. Hassan, T. Kuokkanen and N. Soininen (eds.),

125 126

and International Law Ibid

Transboundary Marine Spatial Planning

(London, Routledge, 2015), p. 4.

., pp. 9 –10.

Directive 2014/89/EU of the European Parliament and of the Council of 23 July 2014 establishing a Framework for Maritime Spatial Planning, OJ L 257/135 28.8.2014.

127

Tanaka,

A Dual Approach

, pp. 78–82.

306

Protection of Community Interests at Sea conjunction with this, Article 7(2) enumerates various factors which need to be taken into account in determining compatible conservation and management measures in some detail. Yet it remains unclear how it is possible to balance these elements.

128

In this regard, some argue that Article 7(2)(a) will lead to a result in favour of coastal States.

129

However, such an interpretation will considerably limit the scope of the negoti-

ation on this subject because the validity of conservation measures in marine spaces under national jurisdiction is already presumed and the issue remaining is whether or not

fishing

States on the high seas accept these measures. If this is the case, the negotiation would seem to become pointless. Accordingly, there may be room for the view that Article 7(2) should be construed in such a way that conservation and management measures established for the high seas and those adopted for areas under national jurisdiction must be mutually compatible, not that measures adopted for the high seas have to be compatible with measures adopted for areas under national jurisdiction.

130

5.3 The Precautionary Approach

The origin of the precautionary approach can be traced back to the concept of the

Vorsorgeprinzip

of German Law in the 1970s and 1980s. At the international level, the

term, ‘ the precautionary approach’ , was explicitly contained in the Declaration of the Second International North Sea Conference on the Protection of the North Sea (London Declaration) in 1987.

131

The precautionary approach is one of the key elements which

characterises a new dimension of international law with regard to marine environmental protection and the conservation of marine species. While the de

132

finition of the precautionary approach varies depending on the instruments,

Principle 15 of the 1992 Rio Declaration on Environment and Development formulated this approach as follows:

128

A. G. Oude Elferink, ‘The Impact of Article 7(2) of the Fish Stocks Agreement on the Formulation of Conservation and Management Measures for Straddling Highly Migratory Fish Stocks ’,

Online

, No.4, pp. 13–18 (August 1999) available at: www.fao.org/

129

FAO Legal Papers

fileadmin/user_upload/legal/docs/lpo4.pdf.

See for instance H. Gherari, ‘L’accord du 4 août 1995 sur les stocks chevauchants et les stocks de poissons grands migrateurs’ (1996) 100

œ

RGDIP

, p. 377; Lucchini and V

lckel,

Droit de la mer

, p. 681; Davies and

Redgwell, ‘The International Legal Regulation’, pp. 263–264; Francisco Orrego Vicuña,

130 131

International Law of High Seas Fisheries

The Changing

(Cambridge University Press, 1999), p. 190.

Oude Elferink, ‘The Impact of Article 7(2) ’, pp. 4 and 7. Paragraphs VII and XV of the Preamble. The term ‘precautionary measures’ had already been used in the Declaration of the First International North Sea Conference on the Protection of the North Sea (Bremen Ministerial Declaration) in 1984 (para. D3).

132

It appears that the terminology of the ‘precautionary approach’ or the ‘precautionary principle’ is not uni

fied. In this study, I use the term the

‘precautionary approach’. On this issue, see Birnie et al.,

International Law and the Environment Evolution and Status of the Precautionary Principle in International Law

, p. 155. For a detailed examination of the precautionary principle,

see Arie Trouwborst, Kluwer, 2002).

(The Hague,

307 Conservation of Marine Living Resources

In order to protect the environment, the precautionary approach shall be widely applied by states according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scienti

fi

c certainty shall not be used as a reason for postponing cost-effective

measures to prevent environmental degradation.

Unlike the traditional obligation to prevent transboundary harm which is triggered once ‘ convincing evidence’ exists that such harm will occur, the precautionary approach calls for

action even when there is scienti environmental harm.

fic uncertainty about the precise degree of risk concerning

133

While, on the international plane, the precautionary approach was originally adopted in order to protect the marine environment, this approach is being increasingly incorporated into instruments respecting conservation of marine living resources. For example, Article 6 (1) of the 1995 Fish Stocks Agreement places a clear obligation upon States to apply ‘ the precautionary approach widely to conservation, management, and exploitation of straddling

fish

stocks and highly migratory

fish

stocks in order to protect the living marine

resources and preserve the marine environment ’. Annex II of the Agreement provides Guidelines for the Application of Precautionary Reference Points in Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks. Likewise, Article 4(c) of the 2006 Southern Indian Ocean Fisheries Agreement explicitly provides that ‘ the precautionary approach shall be applied in accordance with the Code of Conduct and the 1995 Agreement, whereby the absence of adequate scienti

fic information

shall not be used as a reason for postponing or failing to take conservation and management measures ’.

134

Article 3(1)(b) of the 2009 Convention on the Conservation and Man-

agement of High Seas Fishery Resources in the South Paci

fic

Ocean places an explicit

obligation upon the Contracting Parties to ‘ apply the precautionary approach and an ecosystem approach ’.

135

In light of growing concerns over the depletion of marine living resources, it is hardly surprising that the precautionary approach is increasingly enshrined in international instruments respecting conservation of marine species. Furthermore, owing to the scienti

fic

uncertainty relating to the mechanisms of marine ecosystems, the application of the ecosystem approach necessitates some precautionary considerations. Thus the precautionary approach is logically linked to the ecosystem approach. In fact, international instruments adopting the ecosystem approach tend to refer to the precautionary approach at the same time.

136

However, the concept of the precautionary approach seems to leave some room for

discussion with regard to its normativity. Two issues in particular merit highlighting.

133

IUCN, Draft International Convention on Environment and Development, 4th edition, Updated Text, Environmental Policy and Law Paper No. 31, Rev. 3 (Grant, IUCN, 2010), pp. 49–50.

134 135

For the text of the Agreement, see Of

ficial Journal of the European Union, L 196/45, 18 July 2006.

Entered into force 24 August 2012. The text of the Convention is available at: www2.ecolex.org/server2neu .php/libcat/docs/TRE/Full/En/TRE-160003.pdf.

136

Tanaka, A Dual Approach, pp. 86–87.

308 Protection of Community Interests at Sea First, a need for the application of the precautionary approach is to be determined on the basis of

potential

risks. However, the assessment of potential risk is often dif

ficult to make

since such risk may not be well known or discoverable through present-day science. The results of the assessment of possible serious harm may also change in accordance with the development of scienti

fic technology.

137

The level of environmental risks which is socially

acceptable also varies over time. The inter-temporality involves an inherent dif

ficulty with

the application of the precautionary approach. Second, the precautionary approach contains no legal guidance about how to control the environmental risks. The application of the precautionary approach itself does not automatically

specify

measures

that

should

be

taken.

In

other

words,

the

precautionary

approach can be applied in different ways in different contexts. In light of the differentiated economic and technological capacities between States, not all States can adopt the same measures with regard to the implementation of the precautionary approach.

138

Further-

more, the decision-making process of the precautionary approach is complicated because there is a need to consider not only scienti

fic

factors but also the cost-effectiveness of

proposed measures, their technical capabilities, their economic and social priorities, etc.

139

The evaluation of those factors is essentially a matter of policy which can be best answered by politicians, rather than jurists or scientists.

140

Considering that the decision-making process of the precautionary approach essentially involves national policy, international courts and tribunals seem to encounter considerable dif

ficulties with its application to a particular case where application of this approach is at

issue. It is not surprising that international courts have been wary about applying the precautionary approach in international disputes. In the 1995

Gabcíkovo-Nagymaros Project

Nuclear Tests II

and 1997

cases, the ICJ made, in fact, no explicit reference to the

‘ precautionary principle’ , although the applicability of this principle was at issue in the

judicial process. The judicial hesitation can also be seen in judgments of ITLOS. No explicit mention was made of the precautionary approach in the 2001

Reclamation

MOX Plant

and 2003

Land

cases, while the application of the ‘ precautionary principle’ was discussed by

the disputing parties. Furthermore, the World Trade Organization (WTO) Appellate Body, in the

Beef Hormones

case, took the view that: ‘ Whether it [the precautionary principle] has

been widely accepted by Members as a principle of appears less than clear. ’

141

general

to the legal status of this principle in international law.

EC

137

or

customary international law

Thus the Panel did not make any de 142

finitive finding with regard

Likewise, in the 2006 decision in

– Approval and Marketing of Biotech Products, the Panel pronounced:

P. Martin-Bidou, ‘Le principe de précaution en droit international de l’environnement’ (1999) 103

RGDIP,

pp. 647 and 651. 138 139 141

F. Gonsález-Laxe, ‘The Precautionary Principle in Fisheries Management’ (2005) 29 Birnie et al.,

International Law and the Environment,

pp. 163– 164.

Ibid.,

Marine Policy,

p. 496.

p. 161.

Report of the Appellate Body, EC Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/ R, WT/DS48/Ab/r, 45 –46, para. 123 (16 January 1998).

142

140

Ibid.

309 Conservation of Marine Living Resources

[T]he legal debate over whether the precautionary principle constitutes a recognized principle of general or customary international law is still ongoing. Notably, there has, to date, been no authoritative decision by an international court or tribunal which recognizes the precautionary principle as a principle of general or customary international law.

143

In addition, the Chamber of ITLOS, in its Advisory Opinion of 2011, stated that the Rio Declaration ‘has initiated a trend towards making this approach part of customary international law’ .

144

Yet it seemed that the Chamber was still wary of recognising the precau-

tionary approach as a well-established rule of customary international law. In summary, the normativity of the precautionary approach is modest as a rule of conduct and a rule for adjudication. It is not suggested, however, that the precautionary approach has no normative force in international adjudication. The precautionary approach can be used as an element of interpretation of existing rules of international law.

145

In the

context of the conservation of marine living resources, an illustrative example on this

fin

matter may be provided by the 1999 Southern Blue

Tuna case. While ITLOS did not

explicitly refer to ‘ the precautionary principle’ , the Tribunal pronounced: ‘ In the view of the Tribunal, the parties should in the circumstances act with prudence and caution to ensure that effective conservation measures are taken to prevent serious harm to the stocks of southern blue

fin tuna.

’

146

sively assess the scienti

ITLOS further stated that ‘ although the Tribunal cannot conclu-

fic evidence presented by the parties, it finds that measures should

be taken as a matter of urgency to preserve the rights of the parties and to avert further deterioration of the southern blue

fin tuna stock . ’

147

In so ruling, ITLOS appeared to take

account of the precautionary approach as an element of the interpretation of the requirement of urgency under Article 290 of the LOSC.

148

More recently, the ICJ, in the 2010 Pulp

Mills on the River Uruguay case, explicitly stated that ‘a precautionary approach may be relevant in the interpretation and application of the provisions of the Statute [of the River Uruguay]’ .

143

149

WTO Panel Report, European Communities

Products (EC

–

–

Measures Affecting the Approval and Marketing of Biotech

Approval and Marketing of Biotech Products), WT/DS291/R, WT/DS292/R, WT/DS293/R,

29 September 2006, para. 7.88. 144

Advisory Opinion, Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect

to Activities in the Area, 1 February 2011 (hereinafter 2011 ITLOS Advisory Opinion), ITLOS Reports 2011, p. 47, para. 135. 145

Y. Tanaka, ‘Rethinking Lex Ferenda in International Adjudication’ (2008) 51 GYIL , pp. 489–493; A. Boyle, ‘Further Development of the Law of the Sea Convention: Mechanisms for Change ’ (2005) 54

pp. 573 –574. 146

The Southern Blue

ICLQ,

fin Tuna cases (New Zealand v Japan; Australia v Japan), Requests for Provisional

Measures, ITLOS Reports 1999, p. 296, para. 77. 147 148

Ibid., para. 80. Separate Opinion by Judge Tullio Treves, ibid ., pp. 317–318, paras. 8– 9. See also Separate Opinion of Judge Laing, ibid ., p. 313, para. 19; Separate Opinion of Judge ad hoc Shearer, ibid ., p. 327.

149

Case Concerning Pulp Mills on the River Uruguay, (Argentina v Uruguay) , ICJ Reports 2010, p. 71, para. 164.

310

Protection of Community Interests at Sea

6 ENSURING COMPLIANCE

The implementation of substantive rules cannot be ensured without effective compliance mechanisms. Thus it becomes necessary to explore mechanisms for ensuring effective compliance with rules concerning the conservation of marine species on the high seas. While the de

finition of the concept of compliance in international law may vary according fined broadly as the behaviour of a State which conforms

to writers, compliance may be de to its international obligations.

6.1 Flag State Responsibility and Its Limits

(a) Problems with IUU Fishing The effectiveness of conservation measures taken by coastal States or regional organisations is seriously undermined by IUU can be de

fined as follows:

3.1 Illegal

fishing.

150

fisheries fishing

According to the FAO, IUU

151

fishing refers to activities:

3.1.1 conducted by national or foreign vessels in waters under the jurisdiction of a State, without the permission of that State, or in contravention of its laws and regulations;

flying the flag of States that are Parties to a relevant regional fisheries management organization but operate in contravention of the conservation

3.1.2 conducted by vessels

and management measures adopted by that organization and by which the States are bound, or relevant provisions of the applicable international law; or 3.1.3 in violation of national laws or international obligations, including those undertaken by cooperating States to a relevant regional 3.2 Unreported

fisheries management organization.

fishing refers to fishing activities:

3.2.1 which have not been reported, or have been misreported, to the relevant national authority, in contravention of national laws and regulations; or 3.2.2 undertaken in the area of competence of a relevant regional

fisheries management

organization which have not been reported or have been misreported, in contravention of the reporting procedures of that organization. 3.3 Unregulated

fishing refers to fishing activities:

fisheries management organization that are conducted by vessels without nationality, or by those fl ying the fl ag of a State not party to that organization, or by a fishing entity, in a manner that is not

3.3.1 in the area of application of a relevant regional

150

For a recent study concerning IUU

fi shing, see T. M. Ndiaye,

‘Illegal, Unreported and Unregulated Fishing:

Responses in General and in West Africa ’ (2011) 10 CJIL, pp. 373 et seq. 151

Paragraph 3 of FAO, International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (Rome, FAO, 2001). See also W. Edeson, ‘The International Plan of Action on Illegal, Unreported and Unregulated Fishing: The Legal Context of a Non-Legally Binding Instrument ’ (2001) 16 IJMCL , pp. 603–623. In 2008, the EU adopted its own legally binding regulation to prevent IUU

fishing.

Council Regulation (EC) No 1005/2008 of 29 September 2008 establishing a Community System to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, OJ L 286/1.

311 Conservation of Marine Living Resources consistent with or contravenes the conservation and management measures of that organization; or

fish stocks in relation to which there are no applicable conservation or management measures and where such fishing activities are conducted in a manner

3.3.2 in areas or for

inconsistent with State responsibilities for the conservation of living marine resources under international law.

A crucial issue that needs particular consideration in this context is how it is possible to prevent IUU

fishing. In approaching this issue, the obligations of the flag State must first be examined.

(b) Obligations of the Flag State While primary responsibility for the conservation and management of living resources in the

flag States from their flag State is under the due diligence obligation to take all necessary measures to ensure compliance and to prevent IUU fishing by fishing vessels flying its flag . This is an obligation of conduct, not of result. According to ITLOS, the obligations of flag States are specifically provided in Articles 91, 92, 94, 192 and 193 of the LOSC. Under Article 94, in particular, the flag State is required to adopt the necessary administrative measures to ensure that fishing vessels flying its flag are not involved in activities which will undermine the flag State s responsibilities under the ConvenEEZ rests with the coastal States under the LOSC,

152

this does not release

obligations on this matter. According to ITLOS, ‘ [t]he

“

”

’

153

154

155

’

tion in respect of the conservation and management of marine living resources. If such violations nevertheless occur and are reported by other States, the

flag State must investigate

and, if appropriate, take the necessary action to remedy the situation.

156

In light of Articles

flag States are obliged to take the necessary measures to flying their flag are not engaged in IUU fishing activities. While the necessary measures are determined by the flag State in accordance with its legal system, the flag State has the obligation to include in them enforcement 58(3), 62(4) and 192 of the LOSC,

ensure that their nationals and vessels 157

mechanisms to monitor and secure compliance with these laws and regulations. Sanctions applicable to involvement in IUU

fishing activities must also be sufficient to deter violations fits accruing from their IUU fishing activities. 158

and to deprive offenders of the bene

Where the obligation is breached, an international responsibility arises. In the view of ITLOS, the responsibility of the

flag State does not arise from a failure of vessels flying its flag to

comply with the relevant laws and regulations, but from its failure to comply with its ‘due diligence’ obligations concerning IUU However, the

152

fishing activities conducted by vessels flying its flag.

159

flag State is not liable if it has taken all necessary and appropriate measures to

2015 ITLOS Advisory Opinion, ITLOS Reports 2015, p. 33, paras. 104 and 106. Even though the term ‘

flag

State ’ in the Advisory Opinion refers to a State which is not a member of the SRFC, the view of ITLOS seems to provide a useful insight into the obligations of the 153 157 159

Ibid., p. 40, para. 129. Ibid., p. 38, para. 124.

154 158

Ibid.

155

flag State in general.

Ibid., p. 34, para. 111.

156

Ibid., pp. 36–37, para. 119.

Ibid., p. 42, para. 138.

Ibid., p. 44, para. 146. The term ‘liability’ is used in the Advisory Opinion of 2015. According to ITLOS, the English term ‘liability’ refers to the consequences of a breach of the primary obligation. Ibid., para. 145.

312 Protection of Community Interests at Sea meet its ‘ due diligence’ obligations to ensure that vessels

fishing activities in the EEZ of a third State.

flying its flag do not conduct IUU

160

(c) Limits of the Flag State Responsibility In reality, the effective implementation of the

flag State s jurisdiction over fishing vessels is ’

flag of convenience States which often lack the will and fishing activities by vessels flying its flag. Fishing vessels can also easily evade the regulation of the flag State by the simple expedient of re-flagging undermined by the practice of capability to properly regulate

to another State.

161

In response, various treaties and non-binding instruments attempt to strengthen the

flag

State ’ s responsibility. An example is provided by the 1993 Agreement to Promote Compliance with International Conservation and Management Measures (hereinafter the FAO Compliance Agreement).

162

Article III of the FAO Compliance Agreement provides

flag

State responsibility in some detail. For instance, Article III(3) prohibits each Party from

fishing vessel entitled to fly its flag to be used for fishing on the high seas fied that it is able to exercise effectively its responsibilities under this Agreement. Article III(5) further prohibits any Party from authorising any fishing vessel, authorising any

unless the Party is satis

‘

previously registered in the territory of another Party that has undermined the effectiveness of international conservation measures, to be used for certain conditions are satis

fied.

on the high seas ’ unless

The 1995 UN Fish Stocks Agreement also attempts to

strengthen ‘ the effective control’ by the this matter.

fishing

flag State as well as international cooperation in

163

However, it appears doubtful whether States often involved with IUU

flags

fisheries as well as

of convenience will ratify the FAO Compliance Agreement or the UN Fish Stocks

Agreement in the near future.

164

It must also be noted that many developing States are facing

financial and human resources constraints in preventing illegal fishing by foreign fleets. Overall it may have to be accepted that the flag State jurisdiction alone is inadequate to 165

ensure effective compliance with rules relating to conservation of marine living resources. Hence there will be a need to explore more concerted mechanisms for ensuring effective compliance. In this respect, it is of particular interest to note that nonincreasingly taken by regional

fisheries

flag measures are

bodies. Such measures may be divided into two

categories: inspection at sea and inspection in port. Each category is further divided into two sub-categories: inspection of the Contracting Party vessels and inspection of nonContracting Party vessels.

160 162

Ibid., p. 45, para. 148.

164 165

161

Birnie et al.,

ILM, pp. 968.

See Articles 18, 19 and 20. As at 2 July 2018, the number of Parties to the FAO Compliance Agreement is forty-two, including the EU. M. Hayashi, ‘Illegal, Unreported and Unregulated (IUU) Fishing: Global and Regional Responses’, in D. D. Caron and H. N. Scheiber (eds.),

166

International Law and the Environment, p. 743.

Paragraph 10 of Preamble. The FAO Compliance Agreement entered into force 24 April 2003. Text in: (1994) 33

163

166

Bringing New Law to Ocean Waters (Leiden, Brill/Nijhoff, 2004), p. 96. fl ag State measures, see Tanaka, The Changing Approaches ,

For a recent analysis in some detail of nonpp. 318

et seq.

‘

’

313 Conservation of Marine Living Resources

6.2 At-sea Inspection of Contracting Party Vessels An example of at-sea inspection of Contracting Party vessels is to be found in the 1995 Fish Stocks Agreement. Article 21(1) of the Agreement provides:

fi

In any high seas area covered by a subregional or regional

sheries management organization

or arrangement, a state Party which is a member of, or a participant in, such organization or arrangement may, through its duly authorized inspectors, board and inspect, in accordance with paragraph 2,

fi

shing vessels

fl

ying the

fl

ag of another State Party to this Agreement, whether or

not such State Party is also a member of, or a participant in, the organization or arrangement, for the purpose of ensuring compliance with conservation and management measures for straddling

fi

sh stocks and highly migratory

fi

sh stocks established by that organization or

167

arrangement.

Thus States are required to establish procedures for boarding and inspection through subregional or regional

fisheries management organisations or arrangements pursuant to

Article 21(2). If, within two years of the adoption of this Agreement, any organisation or arrangement has not established such procedures, boarding and inspection shall, pending the establishment of such procedures, be conducted in accordance with Article 21 and the basic procedures set out in Article 22.

168

Where there are clear grounds for believing that a vessel has breached the conservation

flag State to fulfil its

measures referred to in Article 21(1), the inspecting State is to promptly notify the of the alleged violation under Article 21(5). The

flag

State is obliged either

obligation to investigate and take enforcement action with respect to the vessel, or to authorise the inspecting State to investigate pursuant to Article 21(6). Where the

flag State

has failed to respond or failed to take action, the inspectors may require the master to assist in further investigation including, where appropriate, bringing the vessel to the nearest appropriate port by virtue of Article 21(8). However, the

flag State may, at any time, take action to fulfil its obligations under Article

19 with respect to an alleged violation. Where the vessel is under the direction of the

flag State, release the vessel flag State in accordance with Article 21(12). At-sea inspection of Contracting Party vessels is echoed by some regional fisheries organisations, such as the North Pacific inspecting State, the inspecting State shall, at the request of the to the

Anadromous Fish Commission (NPAFC), Marine

167 169

Living

Resources

(CCAMLR

Commission for the Conservation of Antarctic 170

Commission),

However, Article 21(15) contains an exception to Article 21(1).

Northwest

168

Atlantic

Fisheries

Article 21(3).

Article V of the 1992 Convention for the Conservation of Anadromous Stocks in the North Paci Entered into force 16 February 2013.

170

169

The CCAMLR System of Inspection.

fic Ocean.

314 Protection of Community Interests at Sea Organization (NAFO), Central

Bering

Sea

171

172

Northeast Atlantic Fisheries Commission (NEAFC)

Observer

173

Programme.

At-sea

inspection

calls

for

and the

three

brief

observations. First, at-sea inspection of Contracting Party vessels rests on the consent of the Party. Furthermore, the ultimate discretion respecting prosecution and sanction is always left to the

flag State.

174

Hence at-sea inspection of Contracting Party vessels cannot be considered

as an exception to the principle of the exclusive jurisdiction of the

flag State.

Second, the inspection schemes do not seek to establish a regime applicable to high seas

fisheries in general. Indeed, the Fish Stocks Agreement regulates only straddling and highly migratory fish stocks and, consequently, the Agreement does not apply to fish stocks found on the high seas alone. The scope of jurisdiction of regional fisheries organisations is also limited to certain regions and speci fic species. Third, the at-sea inspection schemes are costly. Furthermore, such inspections should be undertaken with caution, since they may run the risk of creating disputes relating to participation, cost recovery, objectivity of inspections, interference with

fishing

activity,

economic loss, and the evidentiary value of surveillance information as well as inspection reports.

175

6.3 At-sea Inspection of Non-Contracting Party Vessels At-sea inspection of vessels of non-Contracting Parties is undertaken by some regional

fisheries organisations. For instance, Chapter VII of the 2017 NEAFC Scheme of Control and Enforcement provides Measures to Promote Compliance by non-Contracting Party Fishing Vessels.

176

Under Article 38(1) of the NEAFC Scheme, NEAFC inspectors shall request

permission to board and inspect non-Contracting Party vessels sighted or by other means identi

fied by a Contracting Party as engaging in fishing activities in the Convention Area. If

the master does not consent for the vessel to be boarded and inspected, the vessel shall be presumed to have engaged in IUU activities pursuant to Article 38(3). Similar procedures for

171

Chapter VI of the Northwest Atlantic Fisheries Organization,

Conservation and Enforcement Measures

(2018), NAFO/COM Doc. 18–01, available at: www.nafo.int/Fisheries/Conservation. 172

Chapter IV of the NEAFC, Scheme of Control and Enforcement (2017), available at: http://www.neafc.org/scheme.

173

Article XI(7) of the 1994 Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea. Entered into force 8 December 1995. The text of the Convention is available at: www .afsc.noaa.gov/refm/cbs/convention_description.htm.

174

See Article XI(7)(c) of the 1994 Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea; Article V(2)(d) of the 1992 Convention for the Conservation of Anadromous Stocks in the North Paci

fic Ocean; Article XI of the CCAMLR System of Inspection; Article 39 of the NAFO,

Conservation and Enforcement Measures, NAFO/FC and Enforcement. See also, R. Rayfuse,

Doc. 17 –01; Article 30 of the NEAFC Scheme of Control

Non-Flag State Enforcement in High Seas Fisheries (Leiden,

Nijhoff,

2004), p. 329. 175

R. Rayfuse, ‘To our Children’s Children ’s Children: From Promoting to Achieving Compliance in High Seas Fisheries ’ (2005) 20

176

IJMCL ,

p. 520.

The electronic text is available at: www.neafc.org/scheme.

315 Conservation of Marine Living Resources inspecting non-Contracting Party vessels can be seen in the 2017 NAFO Conservation and Enforcement Measures.

177

At-sea inspection of non-Contracting Party vessels needs careful consideration with regard to its legitimacy. In this respect, an issue that needs particular attention involves the presumption of undermining conservation and enforcement measures by regional

fisheries organisations. For instance, Article 49(1) of the NAFO Conservation and Enforcement Measures states that a Non-Contracting Party vessel is presumed to have undermined the effectiveness of the conservation and enforcement measures, and to have engaged in IUU

fishing,

activities

in

if it has been sighted or identi the

Regulatory

Area

and

fied

by other means as engaged in

involved

Contracting Party vessel sighted or identi

fied

in

transshipment

as engaged in

with

fishing

Commission Commission.

for

the

178

the Indian Ocean Tuna Commission (IOTC),

fisheries organisa-

Conservation

of

Atlantic

Tunas

179

180

(ICCAT)

non-

activities inside or

outside the Regulatory Area. The presumption is also provided in other tions, such as NEAFC,

fishing

another

the International

and

the

CCAMLR

181

In essence, the presumption of undermining the effectiveness in the regulatory areas shifts the burden of proving innocence to vessels of non-Contracting Parties. Nonetheless, there may be scope to consider the question of whether the reversal of the burden of proof

fishing. With some exceptions, such as high catadromous species, high seas fishing is, prima facie,

is not contrary to the principle of freedom of seas

fishing

for anadromous and

lawful in international law. In accordance with the principle

pacta tertiis nec nocent nec

prosunt, the regional treaty is not binding upon non-Contracting Parties unless rules of the

treaty

become

part

of

customary

law.

In

obligation upon the non-Contracting Parties to of regional

fisheries organisations on

positive

international

law,

there

is

no

automatically accept regulatory measures

the high seas. While all States are under a duty to

cooperate with other States in taking the conservation measures concerning the living resources of the high seas in accordance with Articles 117 and 118 of the LOSC, it may go too far to argue that non-Contracting Parties are under the obligation to accept the regulatory measures adopted by the regional

fisheries organisation.

182

Furthermore, many

fisheries organisations affirm that a State Party which is opposed to a regulatory measure

177 179

Article 50(1).

178

Article 37(2) of the 2017 NEAFC Scheme of Control and Enforcement.

Paragraph 2 of Resolution 01/03 Establishing a Scheme to Promote Compliance by Non-Contracting Party Vessels with Resolutions Established by IOTC in Compendium of Active Conservation and Management Measures for the Indian Ocean Tuna Commission, 14 November 2013, available at: www.iotc.org/cmm/ resolution-0103-establishing-scheme-promote-compliance-non-contracting-party-vessels-resolutions.

180

Paragraph 1 of the Recommendation by ICCAT Concerning the Ban on Landings and Transshipments of Vessels from Non-Contracting Parties Identi

fied as Having Committed a Serious Infringement, available at:

www.iccat.int/Documents/Recs/compendiopdf-e/1998-11-e.pdf. Entered into force 21 June 1999. 181

Paragraph 4 of the CCAMLR Conservation Measure 10–07 (2016): Scheme to Promote Compliance by Non-Contracting Party Vessels with CCAMLR Conservation Measures, available at: www.ccamlr.org/en/measure-10-07-2016.

182

T. Henriksen, ‘Revisiting the Freedom of Fishing and Legal Obligations on States Not Party to Regional Fisheries Management Organisations’ (2009) 40

ODIL, p. 91.

316

Protection of Community Interests at Sea adopted by a

fisheries organisation is exempted from the application of the measure.

183

It

appears unreasonable to argue that vessels of third States are automatically bound to the regulatory measures of the regional

fisheries organs, while Member States may be released

from such regulations by opposition. Overall there is a concern that the presumption of undermining the effectiveness of conservation measures may entail the risk of de facto applying these measures to non-Contracting Party vessels on the high seas without their explicit consent.

6.4 Port Inspection of Contracting Party Vessels

At the regional level, port inspection of vessels of the Contracting Parties was, for the

first

time, embodied in the 1994 Federal States of Micronesia Arrangement for Regional

Fisheries Access. ance Agreement

184 185

At the global level, this mechanism was enshrined in the FAO Compliand the 1995 Fish Stocks Agreement. Article 23 of the Fish Stocks

Agreement provides:

1.

A port State has the right and the duty to take measures, in accordance with international law, to promote the effectiveness of subregional, regional and global conservation and management measures. When taking such measures a port State shall not discriminate in form or in fact against the vessels of any State.

2.

A port State may,

inter alia,

inspect documents,

fi

fi

shing gear and catch on board

shing

vessels, when such vessels are voluntarily in its ports or at its offshore terminals.

With respect to action after inspection, Article 23(3) speci

fies

that the port State may

prohibit landings and transshipment where it has been established that the catch has been taken in a manner which undermines the effectiveness of subregional, regional or global conservation and management measures on the high seas. Port State inspection of Contracting Party vessels is also undertaken by regional ICCAT,

183

186

IOTC,

187

NAFO

188

and NEAFC.

fisheries

organisations, such as the

189

For instance, Article 12(2)(b)(c) of the NEAFC Convention; Article XII(1) and (3) of the 1978 Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries; Article VIII(3)(c) and (e) of the 1966 International Convention for the Conservation of Atlantic Tunas. See also Harrison,

184

Oceans , p. 183.

Saving the

Entered into force 23 September 1995. The text of this Arrangement was reproduced in T. Aqorau and A. Bergin, ‘The Federal States of Micronesia Arrangement for Regional Fisheries Access’ (1997) 12

IJMCL,

pp. 57 –80. 185 186

Article V(2). Recommendation by ICCAT for an ICCAT Scheme for Minimum Standards for Inspection in Port, entered into force 10 June 2013.

187

Resolution 05/03 Relating to the Establishment of an IOTC Programme of Inspection in Port. This document is available at: www.iotc.org/cmm/resolution-0503-relating-establishment-iotc-programme-inspection-port.

188 189

Chapter VII of the 2017 NAFO Conservation and Enforcement Measures. Chapter V of the 2017 NEAFC Scheme.

317 Conservation of Marine Living Resources In 2009, the Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (hereinafter the 2009 Agreement) was adopted under the auspices of the FAO.

190

The 2009 Agreement recognises, in its Preamble, that ‘ port

State measures provide a powerful and cost-effective means of preventing, deterring and eliminating illegal, unreported and unregulated

fishing . This Agreement is global in scope ’

and applies to all ports under Article 3(5). Under Article 3(3), this Agreement applies to

fishing conducted in marine areas that is illegal, unreported or unregulated and to fishingrelated activities in support of such fishing. When a Party has sufficient proof that a vessel seeking entry into its port has engaged in IUU fishing or fishing-related activities in support of such fishing, the Party shall deny that vessel entry into its ports pursuant to Article 9(4). In relation to this, it is notable that some regional certi

fication

fisheries organs adopted a mandatory

requirement. The case in point may be the CCAMLR Catch Documentation

Scheme for Dissostichus spp. (tooth

fish).

191

Under this Scheme, each Contracting Party and

non-Contracting Party cooperating with CCAMLR by participating in the Catch Documentation Scheme for Dissostichus spp. shall require that each landing of Dissostichus spp. at its ports and each transshipment of Dissostichus spp. from, or to, its vessels be accompanied by a completed Dissostichus catch document (DCD). The landing or transshipment of Dissostichus spp. without a DCD is prohibited. This is a sort of market-related measure and the consistency with WTO law, in particular, Article XX of the 1994 General Agreement on Tariffs and Trade (GATT), may be at issue. Thus such measures should be adopted and implemented in accordance with principles, rights and obligations established in WTO

Agreements,

manner.

and

implemented

in

a

fair,

transparent

and

non-discriminatory

192

6.5 Port Inspection of Non-Contracting Party Vessels Some regional

fisheries

organisations apply port inspection of non-Contracting Party

vessels. One might take the 2017 NAFO Scheme as an example. Article 51(1) of the Scheme obliges masters of non-Contracting Party vessels to ‘request permission to enter port from the competent authority of the port State Contracting Party in accordance with the provisions of Article 45 ’ . The port State Contracting Party is required to forward without delay this information to the

flag State of the vessel and to the Executive Secretary. Under Article

51(2)(b), the port State Contracting Party shall prohibit the entry into its ports of nonContracting Party vessels where: ‘ (i) the Master has not ful

190

The text of the Agreement is available at: www.fao.org/

filled the requirements set out in

fileadmin/user_upload/legal/docs/2_037t-e.pdf.

Entered into force 5 June 2016. For a detailed analysis of the Agreement, see D. J. Doulman and J. Swan, A Guide to the Background and Implementation of the 2009 FAO Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (Rome, FAO, 2012). 191 192

CCAMLR, Conservation Measure 10 –05 (2017), Catch Documentation Scheme for Dissostichus spp. The 2001 International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, para. 66.

318 Protection of Community Interests at Sea Article 45 paragraph 1; or (ii) the

flag State has not confirmed the vessel s fishing activities ’

in accordance with Article 44 paragraph 2 ’ . When a non-Contracting Party vessel enters a port of any Contracting Party, the vessel is to be inspected by authorised Contracting Party of

ficials pursuant to Article 51(2)(f ). Article 51(3) ensures that no non-Contracting Party

vessel engages in landing, transshipment operations or other use of its ports unless the

ficials and the master establishes that the fish species on board subject to the NAFO Convention were harvested outside the Regulavessel has been inspected by its duly authorised of

tory Area or in compliance with the conservation and enforcement measures. Inspections of non-Contracting Party vessels in port are also provided for in the IOTC, CCAMLR Commission

195

193

ICCAT,

194

196

and NEAFC.

Given that the port is part of the internal waters which are under the territorial sovereignty of the coastal State, it is arguable that the State is entitled to regulate access to its ports and landings and transshipments, without discrimination among vessels.

197

However,

at least two issues need further consideration. First, port inspection seems to shift the burden of proving innocence to non-Contracting Party vessels. However, it seems dif

ficult to establish evidence that fish on board were caught

outside the Convention Area in practice. A question thus arises as to whether unilateral prohibition in port is equivalent to de facto application of regulatory measures of the coastal State towards the high seas. In this regard, as demonstrated by the dispute,

198

EU– Chile Swordfish

the unilateral prohibition of access, landing and transshipments in the port may

run the risk of producing a dispute between the port State and the

fishing State.

Second, a concern is voiced that the current system of port inspections is not very effective States.

199

due

to

insuf

ficient

vessel

information

and

lack

of

compliance

among

port

Furthermore, vessels of non-Contracting Parties can avoid the port State inspec-

tion simply by using ports in non-Contracting Party States which will accept their land200

ings.

Thus there is a risk that the effectiveness of port inspection may be undermined by

the practice of using a ‘port of convenience ’.

193

Paragraphs 4 and 5 of IOTC Resolution 05/03 Relating to the Establishment of an IOTC Programme of Inspection in Port.

194 195

Paragraph 2 of the Recommendation by ICCAT Concerning the Ban on Landings and Transshipments. Paragraph 1 of the CCAMLR Conservation Measure 10–03 (2015), Port Inspections of Fishing Vessels Carrying Antarctic Marine Living Resources, available at: https://www.ccamlr.org/en/measure-10-03-2015.

196 197

Articles 40 and 41 of the 2017 NEAFC Scheme. M. A. Palma-Robles, ‘Fisheries Enforcement and the Concepts of Compliance and Monitoring, Control and Surveillance ’, in R. Warner and S. Kaye (eds.),

Routledge Handbook of Maritime Regulation and Enforcement

ibid., p. 80. Chile – Measures Affecting the Transit and Importation of Swordfish , Request for the Establishment of

(London, Routledge, 2016), p. 152; R. Rayfuse, ‘The Role of Port States’, in 198

WTO,

a Panel by the European Communities, WT/DS193/2, 7 November 2000; International Tribunal for the Law

Case Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Paci fic Ocean, 20 December 2000. of the Sea,

199

S. Flothmann et al., ‘Closing Loopholes: Getting Illegal Fishing Under Control ’ (2010) 328

Science,

pp. 1235–1236. 200

Rayfuse,

Non-Flag State Enforcement,

p. 223; Flothmann et al., ‘Closing Loopholes ’, p. 1236.

319 Conservation of Marine Living Resources

7 CONCLUSIONS The matters considered in this chapter can be summarised under six points. (i) Traditionally, international law with regard to the conservation of marine living resources was dominated by the zonal management approach and the species-speci

fic

approach. However, it has become apparent that the traditional approaches to conservation of marine living resources comprise limitations in three respects, particularly:

• • •

the lack of ecological consideration, dif

ficulties with regard to the conservation of migratory species,

weakness of obligations to conserve living resources in the EEZ and high seas.

In response, new concepts and approaches are increasingly enshrined in binding and non-binding development,

international the

instruments.

ecosystem

In

approach

this

and

respect,

the

the

concept

precautionary

of

sustainable

approach

are

of

particular importance. (ii) The concept of sustainable development seeks in essence to reconcile the need for development with environmental protection. This concept is increasingly enshrined in various instruments respecting the conservation of marine living resources. However, the normative contents of the concept of sustainable development remain uncertain. Considering that eventually the concept of sustainable development requires a change in the quality and patterns of human life, it appears dif

ficult for international courts and tribunals to review

the validity of national action by applying the concept of sustainable development. Thus it is argued that the concept of sustainable development should be regarded as a factor guiding the behaviour of States and the proper interpretation of relevant rules in the judicial process. (iii) Unlike the traditional species-speci

fic

approach, the ecosystem approach seeks to

protect marine ecosystems and the ecological conditions surrounding them within ecologically meaningful boundaries as a whole. In so doing, this approach can be considered as a useful means to enhance the effectiveness of conservation of marine species. However, this approach contains considerable uncertainties with regard to its speci

fic contents. Thus the

extent to which the ecosystem approach can legally direct the conduct of States is debatable. For the same reason, it may be dif

ficult to determine a breach of a treaty obligation to

apply this approach in international adjudication. Overall it is argued that the normativity of the ecosystem approach remains modest as a rule of conduct and a rule of adjudication. (iv) The essence of the precautionary approach is that once a potential risk has been identi

fied, the lack of scientific proof of cause and effect shall not be used as a reason for

not taking action to protect the environment. The application of this approach strengthens the environmental dimension of international law governing conservation of marine living resources. However, the decision-making process of the precautionary approach is closely linked to national policy. Accordingly, it appears dif

ficult

for international courts and

tribunals to judge the conformity of the conduct of a State to treaty obligations respecting the implementation of the precautionary approach. Like the ecosystem approach, it may have to be accepted that the normativity of the precautionary approach remains modest as a rule of conduct and a rule of adjudication.

320 Protection of Community Interests at Sea (v) The

flag

State has the primary responsibility to ensure compliance with rules with

regard to the conservation of marine living resources on the high seas by vessels

flag.

In reality, however, the effectiveness of the

undermined by the practice of response, nonmeasures

flag

comprise

flags

flag

inspection

flagging and IUU fishing. In regional fisheries organs. Such

of convenience, re-

State measures are adopted by some at-sea

flying its

State responsibility is seriously

and

port

inspection

of

Contracting

and

non-

Contracting Party vessels. However, inspection of non-Contracting Party vessels is not free from controversy because regulatory measures adopted by regional

fisheries bodies are not

a priori binding on third States. In this regard, there will be a need to enhance the legitimacy of conservation measures. A possible solution may be that regional

fisheries organs invite

all non-Contracting Parties which have interests in the regulatory areas to participate at meetings to adopt conservation measures as a cooperating Party. (vi) Overall, it may have to be admitted that the existing rules of international law concerning

the

conservation

of

marine

living

resources

comprise

many

limitations.

In broad terms, however, it can be observed that the development of international law in this

field represents a paradigm shift from the laissez-faire system of the freedom of fishing

to conservation of marine living resources. In this regard, it must be recalled that, as early as 1974, the ICJ in the

faire

Fisheries Jurisdiction case had already stated that

‘the former

laissez-

treatment of the living resources of the sea in the high seas has been replaced by a

recognition of a duty to have due regard to the rights of other States and

conservation for the bene fit of all’. 201

the need of

FURTHER READING There are many books and articles with regard to the conservation of marine living resources. Only recent monographs on this subject will be listed here. S. Borg,

Conservation on the High Seas: Harmonizing International Regimes for the Sustainable Use

of Living Resources S. Calley,

(Cheltenham, Edward Elgar, 2012).

Market Denial and International Fisheries Regulation: The Targeted and Effective Use of

Trade Measures against the Flag of Convenience Fishing Industry R. Caddell and E. J. Molenaar,

Oceans

(Oxford, Hart Publishing, 2019).

R. R. Churchill and D. Owen, M. Fitzmaurice,

The EC Common Fisheries Policy

Whaling and International Law

M. Fitzmaurice and D. Tamada (eds.),

ICJ Judgment R. Hilborn,

(Leiden, Brill/Nijhoff, 2012).

Strengthening International Fisheries Law in an Era of Changing

Whaling in the Antarctic: Significance and Implications of the

(Leiden, Brill/Nijhoff, 2016).

Over fishing: What Everyone Needs to Know

C. S. G. Jefferies,

(Oxford University Press, 2010).

(Cambridge University Press, 2015).

(Oxford University Press, 2012).

Marine Mammal Conservation and the Law of the Sea

(Oxford University Press,

2016).

201

Emphasis added. ICJ Reports 1974, p. 31, para. 72 of the judgment between the United Kingdom and Iceland.

321 Conservation of Marine Living Resources M. Markowski, The International Law of EEZ Fisheries: Principles and Implementation (Groningen, Europa Law Publishing, 2010). M. A. Palma, M. Tsamenyi and W. Edeson, Promoting Sustainable Fisheries: The International Legal and Policy Framework to Combat Illegal, Unreported and Unregulated Fishing (Leiden, Brill/Nijhoff, 2010). D. A. Russell and D. L. Vander Zwang (eds.), Recasting Transboundary Fisheries Management Arrangements in Light of Sustainability Principles Canadian and International Perspectives (Leiden, Brill/Nijhoff, 2010). A. Serdy, The New Entrants Problem in International Fisheries Law (Cambridge University Press, 2016). Y. Takei, Filling Regulatory Gaps in High Seas Fisheries: Discrete High Seas Fish Stocks, Deep-sea Fisheries and Vulnerable Marine Ecosystems (Leiden, Brill/Nijhoff, 2013). Y. Tanaka, A Dual Approach to Ocean Governance: The Cases of Zonal and Integrated Management in International Law of the Sea (Farnham, Ashgate, 2008). Ying-Ting Chen, Fishing Entity Enforcement in High Seas Fisheries (Cambridge Scholars Publishing, 2014). M. Young, Trading Fish, Saving Fish: The Interaction between Regimes in International Law (Cambridge University Press, 2011).

8 Protection of the Marine Environment Main Issues Given that a healthy marine environment provides a foundation for all life, marine environmental protection is an issue of considerable importance in the law of the sea. In principle, the law regulates marine pollution according to its sources, such as land-based pollution, vessel-source pollution, dumping, pollution from seabed activities under national jurisdiction, pollution from activities in the Area and pollution through the atmosphere. Accordingly, this chapter will seek to examine the rules of international law regulating marine pollution arising from these sources. Particular focus will be on the following issues:

(i) What is the signi

ficance of the LOSC in marine environmental protection?

(ii) Why do rules regulating land-based marine pollution remain weak at the global level? (iii) What are the new elements to regional treaties in the regulation of land-based pollution? (iv) What are the mechanisms for regulating vessel-source marine pollution? (v) How is it possible to ensure compliance with relevant rules governing marine environmental protection?

1 INTRODUCTION Currently marine pollution is an increasing threat to a healthy marine environment. Indeed, marine pollution may severely damage the environment, including ecosystems, and human health. It would be no exaggeration to say that the welfare of coastal populations relies essentially on a sound marine environment. Thus there appears to be a general sense that the protection of the marine environment is considered as a common interest of the international community as a whole. Despite its vital importance, the regulation of marine pollution has attracted little attention until recently because of low awareness of environmental protection. It is only since the end of World War II that international regulation of marine pollution began to develop. In the 1950s, the development of treaties regulating marine pollution was still slow moving. While the

322

first

multilateral treaty regulating oil pollution, i.e. the International

323 Protection of the Marine Environment Convention for the Prevention of Pollution of the Sea by Oil, was adopted in 1954,

1

the

effect of this Convention was only limited. The 1958 Convention on the Territorial Seas and the Contiguous Zone (the TSC) and the 1958 Convention on the Continental Shelf contained no provision dealing directly with the protection of the marine environment. The Convention on the High Seas covered only a few sources of marine pollution, namely the discharge of oil from ships or pipelines or resulting from the exploitation and exploration of the seabed and its subsoil,

2

3

and the dumping of radioactive waste.

The result was that, subject

only to the few limitations imposed by customary international law, States had wide discretion to pollute the oceans. By the late 1960s, however, awareness of the serious threat of oil spilling into the marine environment posed by large oil tankers had become widespread. In particular, the 1967

fi

Torrey Canyon disaster exempli ed the scale of oil pollution from a modern tanker.

4

This

incident raised public awareness of the risk of accidental vessel-source pollution and, as a consequence, the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties was adopted in 1969.

5

In the same year, the International

Convention on Civil Liability for Oil Pollution Damage was also adopted.

6

In the 1970s and the 1980s, treaties regulating marine pollution were increasingly concluded. In particular, it is notable that the MARPOL was concluded under the auspices of the IMO in 1973.

7

fied

This Convention was subsequently modi

1978 relating thereto. This Convention, as modi short form as ‘ MARPOL 73/78’.

8

fied

by the Protocol of

by the 1978 Protocol, is known in

As will be seen, MARPOL provides the key instrument

regulating pollution from ships. In this period, the scope of treaties was further extended to cover the regulation of dumping and land-based marine pollution. Furthermore, many treaties were concluded to protect certain marine areas at the regional level. There is little doubt that the protection of the marine environment is currently one of the most important issues in the law of the sea. Considering this subject, particular attention must be devoted to four points. First, marine pollution may be transported beyond man-made limits and boundaries through currents and winds. As shipping moves freely between the different jurisdictional zones, pollution from vessels may easily spread beyond maritime delimitation lines. Thus international

collaboration

between

States

becomes

a prerequisite

to

regulate

marine

pollution.

1 3 4

327 UNTS , p. 3. Entered into force 26 July 1958.

2

Article 24 of the Convention on the High Seas.

Ibid., Article 25. The Torrey Canyon was an American-owned super-tanker under the Liberian

flag. Because of the wreck,

80,000 tons of oil escaped into the sea and polluted large areas of the coasts of England and France. 5

970 UNTS , p. 212; (1970) 9 ILM, p. 25. Entered into force 6 May 1975.

6

(1970) 9 ILM, p. 45. Entered into force 19 June 1975. This Convention was replaced by the 1992 Protocol.

7 8

This Convention replaced the 1954 Oil Pollution Convention. The 1978 Protocol entered into force in 1983. For the text of the Convention, see IMO, MARPOL 73/78:

Consolidated Edition 2006 (London, IMO, 2006); A. V. Lowe and S. A. G. Talmon (eds.), The Legal Order of the Oceans: Basic Documents on the Law of the Sea (Oxford, Hart Publishing, 2009), p. 105. The MARPOL Convention will be discussed in section 6.1 of this chapter.

324

Protection of Community Interests at Sea Second, the ecological and physical conditions of the oceans may change with the passage of time. The degradation of the healthy marine environment may also be accelerated by human activities in the oceans. Hence there is a need to

flexibly adapt the rules and

standards regulating marine pollution to new environmental situations. Third, traditionally, compliance with rules of international law has been ensured by selfregulation on the basis of reciprocity, and the same applies to the law of the sea. In essence, the principle of reciprocity seeks to secure the national interests of each State on the basis of the symmetry of rights and obligations.

9

Nonetheless, like human rights treaties, treaties

concerning marine environmental protection do not seek to ensure reciprocal engagements and advantages for the mutual bene

fit

of the Contracting Parties. The effectiveness of

marine environmental protection cannot be supported by relying exclusively on selfregulation based on the principle of reciprocity. Hence there is a need to explore more institutionalised compliance mechanisms. Fourth, the interaction between global and regional legal frameworks is of critical importance in marine environmental protection. Since the relationship of the two frameworks varies according to sources of marine pollution, it is necessary to understand the 10

comparative advantages and limitations of global and regional legal frameworks.

Noting

these

marine

issues,

this

chapter

examines

rules

governing

the

protection

of

the

environment.

2 TYPOLOGY OF MARINE POLLUTION

2.1 General Considerations

Article 1(1)(4) of the LOSC de

fines

‘marine pollution ’ as:

the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including

fi

shing and other legitimate uses of the sea, impairment of quality for use

of sea water and reduction of amenities.

This provision calls for three brief comments. First, this is an open de

finition which may

include all sources – the existing and new sources – of marine pollution. Second, the

9

The concept of reciprocity may be de

fined as the relationship between two or more states according each

other identical or equivalent treatment. B. Simma, ‘Reciprocity’, in R. Bernhardt (ed.), Encyclopedia of Public

International Law , vol. 4 (Amsterdam, Elsevier, 2000), pp. 29–30; H. Bull, The Anarchical Society: A Study of Order in World Politics, 3rd edn (New York, Palgrave, 2002), p. 134; M. Virally, ‘Le principe de réciprocité dans le droit international contemporain ’ (1967-III) 122 RCADI, p. 19. 10

Further, see Y. Tanaka, ‘Four Models on Interaction between Global and Regional Legal Frameworks on Environmental Protection against Marine Pollution: The Case of the Marine Arctic’ (2016) 30 Ocean

Yearbook, pp. 345–376.

325 Protection of the Marine Environment

finition

de

covers substances or energy which ‘is likely to result ’ in deleterious effects. It

would follow that potentially harmful effects on the marine environment can also become the object of regulation. Third, as shown in the reference to ‘ living resources and marine life ’, this de

finition makes clear that

‘ the marine environment’ encompasses marine living

organisms. Hence the protection of the marine environment also involves the protection of marine species. Speci

fically, the LOSC identifies six sources of marine pollution:

(i) pollution from land-based sources, (ii) pollution from seabed activities subject to national jurisdiction, (iii) pollution from activities in the Area, (iv) pollution by dumping, (v) pollution from vessels, and (vi) pollution from or through the atmosphere.

In broad terms, these sources of marine pollution can be divided into four principal categories: (i) land-based marine pollution, (ii) vessel-source marine pollution, (iii) dumping at sea, and (iv) pollution from seabed activities. The nature of the problem associated with each type of pollution can be outlined as follows.

2.2 Land-based Marine Pollution Land-based marine pollution includes pollution from land-based activities and pollution from or through the atmosphere. It is estimated that land-based pollution and air pollution contribute approximately 80 per cent of marine pollution.

11

The threat of land-based

pollution to the marine environment is a serious one since it mainly affects coastal waters, which are sites of high biological productivity. Minamata disease, which was caused by the

fish and shell fish contaminated by methylmercury compound discharged from a chemical plant, exemplified the seriousness of adverse impacts of land-based marine consumption of

pollution upon human health.

12

While land-based sources vary, such sources include municipal, industrial or agricultural sources, both

fixed and mobile, discharges from which reach the marine environment, in

particular: (i) from the coast, including from outfalls discharging directly into the marine environment

11

and

through

run-off,

(ii)

through

rivers,

canals

or

other

watercourses,

UN General Assembly, Oceans and the Law of the Sea: Report of the Secretary-General, 18 August 2004, A/59/62/Add.1, p. 29, para. 97.

12

The disease was

first discovered in 1956 around Minamata Bay in Kumamoto prefecture, and in 1965 in the

Agano River basin in Niigata Prefecture, Japan. In 2013, the Minamata Treaty on Mercury was adopted in order to ‘protect the human health and the environment from anthropogenic emissions and releases of mercury and mercury compounds ’ (Article 1). Entered into force 16 August 2017. The electronic text is available at: www.mercuryconvention.org/Convention/tabid/3426/Default.aspx.

326 Protection of Community Interests at Sea including underground watercourses, and (iii) via the atmosphere.

13

Pollutants resulting

from land-based activities include sewage, industrial discharges and agricultural run-off. Some of the contaminants produce eutrophication and oxygen depletion, resulting in loss of marine life and biological diversity. Other substances are directly toxic to humans. In this connection, the threat of marine litter, including plastics and microplastics, is becoming a matter of more pressing concern. adopted to combat marine litter.

14

At the regional level, various action plans have been

15

Air pollution from land-based activities is another source of land-based pollution which contaminates the oceans with dissolved copper, nickel, cadmium, mercury, lead, zinc and synthetic organic compounds. Once emitted, these compounds stay in the air for weeks or more, and they

finally reach the oceans.

16

In a broad context, land-based marine pollution is a result of the imbalance between human populations and industrial activities, and the limited capacity of the marine environment to absorb the wastes they produce. Considering that approximately 40 per cent of the world ’ s population live within 100 km of the coast, it is foreseeable that with rapid population growth, marine pollution from land-based activities will become more problematic. In response, the 2030 Agenda for Sustainable Development set out this goal: ‘By 2025, prevent and signi

ficantly

reduce marine pollution of all kinds, in particular from land-

based activities, including marine debris and nutrient pollution. ’

17

2.3 Vessel-source Marine Pollution Vessel-source pollution is of two kinds: operational and accidental.

18

Operational vessel-

source pollution is produced by the normal operation of ships. Vessels with oil-burning diesel

engines

discharge

some

oil

with

their

bilge

water,

and

the

fumes

discharged

through their funnels into the atmosphere will eventually return to the sea. In the early days of tanker operation, it was common practice that oil tankers washed their oil tanks by means of jets spraying seawater and disposed of the oily residue at sea. As a consequence, a considerable amount of oil was discharged into the sea, causing oil pollution.

13

See also para. 1(b) of the 1985 Montreal Guidelines for the Protection of the Marine Environment against

Basic Documents of International Environmental Law, vol. 1 (London, Graham and Trotman, 1992), pp. 130–147. Pollution from Land-Based Sources. Reproduced in H. Hohmann (ed.),

14

Resolution 1/6. Marine Plastic Debris and Microplastics, adopted by the United Nations Environment Assembly of the United Nations Environment Programme at its

15

first Session on 27 June 2014.

See, for instance, Regional Plan on Marine Litter Management in the Mediterranean in the framework of Article 15 of the Land Based Sources Protocol, Decision IG. 21/7, 2013; Regional Action Plan for Prevention and Management of Marine Litter in the North-East Atlantic, OSPAR Agreement 2014–1; HELCOM Recommendation 36/1, 2015; HELCOM Recommendation 36/1, Regional Action Plan on Marine Litter, 2015.

16 17

18

A Sea of Troubles, Reports and Studies, No. 70, 2001, p. 21. Transforming Our World: The 2030 Agenda for Sustainable Development, A/RES/70/1, 21 October 2015, p. 23, para. 14.1. P. Birnie, A. Boyle and C. Redgwell, International Law and the Environment, 3rd edn (Oxford University GESAMP,

UN General Assembly Resolution, 70/1.

Press, 2009), p. 399.

327

Protection of the Marine Environment Currently this problem has been virtually eliminated by

‘ load

on top’ and ‘ crude oil

19

washing ’ methods.

However, more rules and higher standards are needed for the prevention of vessel-source pollution. As will be seen, the LOSC and MARPOL provide the principal legal framework for the regulation of vessel-source pollution. Marine pollution can also be caused through

Torrey Canyon Prestige

accidents involving vessels. Disasters caused by oil tankers, such as the (1967),

Amoco Cadiz

(1978),

Exxon Valdez

(1989),

Erika

(1999) and

(2002), exem-

plify the scale and severity of the damage that has been caused to marine ecosystems as well as to coastal communities.

20

Furthermore, growing attention is paid to the introduction of alien species through discharge of ballast water.

21

In addition, there are growing concerns that high levels of

man-made noise may have harmful effects upon marine living organisms, including marine mammals.

22

2.4 Dumping at Sea

The third type of ocean-based pollution involves dumping at sea. Article 1(1)(5)(a) of the LOSC de

(i)

fines

‘dumping ’ as:

any deliberate disposal of wastes or other matter from vessels, aircraft, platforms or other man-made structures at sea;

(ii)

23

any deliberate disposal of vessels, aircraft, platforms or other man-made structures at sea.

However, under Article 1(1)(5)(b), ‘dumping ’ does not include:

(i)

the disposal of wastes or other matter incidental to, or derived from the normal operations of vessels, aircraft, platforms or other man-made structures at sea and their equipment, other than wastes or other matter transported by or to vessels, aircraft, platforms or other

19

According to the ‘load on top’ method, tanks are to be cleaned by high-pressure hot-water cleaning machines, and the resulting oily mixtures pumped into a special slop tank. As oil is lighter than water, oil gradually

fl oats to the surface. Later, only the water at the bottom is pumped into the sea, leaving only crude

oil in the tank. Under the crude oil washing method, the tank is cleaned by using crude oil, i.e. the cargo itself. By spraying the oil onto the sediments clinging to the tank walls, the oil can turn them back into usable oil that can be pumped off with the rest of the cargo. This method became mandatory for new crude oil tankers of 20,000 tons and above by Annex I of MARPOL 73/78 (Regulation 13(6)). See also www.imo.org/OurWork/Environment/PollutionPrevention/OilPollution/Pages/Crude-Oil-Washing.aspx. 20 21 22

Data concerning major oil spill incidents at sea is available at: www.cedre.fr/en/cedre/index.php. This issue will be discussed in section 6.10 of this chapter. See section 6.10 of this chapter. Generally on this issue, see K. N. Scott, ‘International Regulation of Undersea Noise’ (2004) 53

ICLQ

, pp. 287– 324; J. M. Van Dyke, E. A. Gardner and J. R. Morgan, ‘Whales, Submarines,

and Active Sonar’ (2004) 18 23

Ocean Yearbook

, pp. 330– 363.

See also Article 1(4)(a) of the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter. The 1996 Protocol will be discussed in section 7.2 of this chapter.

328 Protection of Community Interests at Sea man-made structures at sea, operating for the purpose of disposal of such matter or derived from the treatment of such wastes or other matter on such vessels, aircraft, platforms or structures; (ii)

placement of matter for a purpose other than the mere disposal thereof, provided that such placement is not contrary to the aims of this Convention.

The de

finition under Article 1(1)(5) is a replica of the definition provided in Article III(1) of The de finition calls for two comments. First,

the 1972 London Dumping Convention. ‘ dumping ’

24

means any deliberate disposal at sea. Thus, disposal from land cannot be

considered as dumping. Second, dumping from vessels is distinguished from vessel-source marine pollution. This is partly because unlike accidental pollution from ships, dumping is always deliberate and usually the purpose of a particular voyage.

25

In addition, as stated in

Article 1(5)(b)(i), the disposal of wastes or other matters derived from the normal operations of vessels, etc. does not constitute dumping. The

1996

Protocol,

which

superseded

the

amended in 2006, contains a more detailed de

London

Dumping

finition of dumping.

Convention 26

and

was

Under the Protocol,

‘ dumping ’ means:

1. any deliberate disposal into the sea of wastes or other matter from vessels, aircraft, platforms or other man-made structures at sea; 2. any deliberate disposal into the sea of vessels, aircraft, platforms or other man-made structures at sea; 3. any storage of wastes or other matter in the seabed and the subsoil thereof from vessels, aircraft, platforms or other man-made structures at sea; and 4. any abandonment or toppling at site of platforms or other man-made structures at sea, for the sole purpose of deliberate disposal.

Item 3 relates to the storage of carbon dioxide under the seabed as an interim solution to control the emission of carbon dioxide. The de

finition

27

of dumping raises two issues.

28

The

first

issue concerns the marine

disposal of mine tailings. While mining operations do not fall directly under the regulatory scope of the London Dumping Convention and its Protocol, it has been recognised that if wastes from mining operations were to be disposed from ships, such disposal activities would fall within the scope of the London Dumping Convention/Protocol.

24

29

The 1972 International Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter. Text in: 1046 UNTS, p. 138; (1972) 11 ILM, p. 1294. Entered into force 30 August 1975.

25 26

R. R. Churchill and A. V. Lowe, The Law of the Sea, 3rd edn (Manchester University Press, 1999), p. 330. Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, IMO Doc. LC/SM 1/6 (1996), entered into force 24 March 2006.

27 28

See section 7.4 of this chapter. See also J. Harrison, Saving the Oceans through Law: The International Legal Framework for the Protection of

the Marine Environment (Oxford University Press, 2017), pp. 93–94. 29

IMO, Interpretation of the London Convention and Protocol, Scope of International Instruments to Address Marine Disposal of Mine Tailings, Note by the Secretariat, IMO Doc. LC 37/9/2 (2015), para. 1.

329

Protection of the Marine Environment The second issue is whether pipeline discharges from land are covered by the scope of the London Dumping Convention and its Protocol. In this regard, the IMO takes the view that the Parties to the London Dumping Convention/Protocol could decide that outfall pipes are

finition of

‘ other man-made structures at area’ within the meaning of the de

‘ dumping’ in

the London Dumping Convention and Protocol and take action accordingly.

30

However,

Article 207(1) of the LOSC makes clear that sources of land-based marine pollution include ‘ rivers, estuaries, pipelines and outfall structures’ . Hence there may be scope to consider that

disposal of mine tailings from land via pipelines is regulated by rules concerning landbased marine pollution. In any case, as the IMO states, this issue is to be decided by the States Parties to the London Dumping Convention and its Protocol.

31

2.5 Pollution from Seabed Activities

Marine pollution can be caused by seabed activities. In reality, the accidental oil pollution from the BP oil rig blast in April 2010 exempli

fied

the risk of environmental disaster

arising from oil exploitation in the seabed. Marine pollution may also be caused by drilling operations which produce drilling mud, drill cuttings and produced waters. The drilling mud includes some known toxic pollutants such as hydrocarbons as well as concentrations of heavy metals, including chromium, cadmium, copper, zinc, lead, mercury and nickel.

32

Furthermore, there is an increasing need to regulate seabed activities in the Area in order to protect the environment there. In this respect, the role of the International Seabed Authority (hereinafter the Authority) is increasingly important.

3 LEGAL FRAMEWORK FOR MARINE ENVIRONMENTAL PROTECTION PRIOR TO 1982

3.1 Customary Law

Traditionally, the principal focus of the law of the sea has been on the use of the oceans, not on the protection of the oceans. Owing to the paucity of State practice in the

field of marine

environmental protection, customary law contains only general rules relevant to the question of marine pollution. Probably the most important rule on this issue would be that no State has the right to use or permit the use of its territory in such a manner as to cause injury in or to the territory of another State. The customary principle of sic utere tuo ut

alienum non laedas (use your own property so as not to injure that of another) was upheld in the Trail Smelter Arbitration (1938– 41) and, later, it was re

30

flected in Principle 21 of the

Ibid., para. 4 (Annex, Scope of International Instruments to Address Marine Disposal of Mine Tailings. This view was expressed by the IMO Legal Affairs and External Relations Division).

31

Ibid. See also Y. Tanaka, ‘Article 1’, in A. Prölss (ed.), United Nations Convention on the Law of the Sea: A Commentary (Munich, Beck/Oxford, Hart Publishing/Baden-Baden, Nomos, 2017) (hereinafter Prölss, A Commentary), p. 25.

32

H. Esmaeili, The Legal Regime of Offshore Oil Rigs in International Law (Aldershot, Ashgate, 2001), pp. 148– 149.

330 Protection of Community Interests at Sea Stockholm Declaration of 1972

33

and Principle 2 of the 1992 Rio Declaration adopted in the

UN Conference on Environment and Development,

34

which stated:

States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.

While the older formulation stated in the Trail Smelter Arbitration had dealt only with transboundary harm to other States, the formulation set out in Principle 2 requires States to protect the environment beyond the limits of national jurisdiction. It follows that the obligation not to cause environmental damage is no longer solely bilateral in nature but relates to the protection of the high seas which concerns common interests of the inter35

national community as a whole. In this sense, it can be said to operate erga omnes.

It is

flects

generally recognised that the principle of sic utere tuo ut alienum non laedas re 36

customary international law.

This principle is also embodied in Article 194(2) of the LOSC.

It is generally understood that this principle of sic utere tuout alienum non laedas provides an obligation to use ‘ due diligence’ not to cause transfrontier damage.

37

This

means that a State is not responsible if that State paid such ‘ due diligence’ . However, ‘ due diligence’ is a vague concept and a reasonable standard of ‘due diligence ’ may change over time.

38

In light of its variable nature, it is less easy to determine the breach of the general

obligation of ‘ due diligence’ . It must also be noted that this principle essentially functions only after damage has been caused in the other State’ s territory, with a view to establishing State responsibility. Given that damage to the environment may be irreversible, however, it appears that the State-responsibility-orientated approach is of limited value where environmental protection is concerned. As the ICJ in the Gabcíkovo-Nagymaros Project case pointed

out,

protection.

33 34

vigilance

and

prevention

are

required

in

the

field

of

environmental

39

Reproduced in H. Hohmann (ed.), Basic Documents of International Environmental Law, vol. 1, p. 26. UN General Assembly, A/CONF.151/26 (vol. I), 12 August 1992. The text is available at: www.un.org/documents/ga/conf151/aconf15126-1annex1.htm.

35 36

Birnie et al., International Law and the Environment, p. 145. Ibid., p. 137. See also the Advisory Opinion concerning Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996, pp. 241–242, para. 29; the Gabcíkovo-Nagymaros Project case, ICJ Reports 1997, p. 41, para. 53; the Corfu Channel case, ICJ Reports 1949, p. 22.

37

P. H. Okowa, ‘Procedural Obligations in International Environmental Agreements’ (1996) 67 BYIL 332; R. Pisillo-Mazzeschi, ‘The Due Diligence Rule and the Nature of the International Responsibility of States’ (1992) 35 GYIL, p. 38.

38

See Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (hereinafter 2011 ITLOS Advisory Opinion), Advisory Opinion, ITLOS Reports 2011, p. 43, para. 117.

39

ICJ Reports 1997, p. 78, para. 140. See also ILC, Draft Articles on Prevention of Transboundary Harm from Hazardous Activities with Commentaries, General Commentary (2001) 2 YILC, Part 2, p. 148, para. 2.

331

Protection of the Marine Environment Another relevant rule may involve the obligation regarding abuse of rights. This rule is explicitly embodied in Article 300 of the LOSC:

fi

States Parties shall ful

l in good faith the obligations assumed under this Convention and shall

exercise the rights, jurisdiction and freedoms recognised in this Convention in a manner which would not constitute an abuse of right.

In accordance with this obligation, marine pollution is illegal if it is so excessive that the interests of other States are disproportionately affected. However, it appears dif

ficult

to

establish an objective criterion to identify the presence of an abuse of rights. Hence more speci

fic rules regulating marine pollution are required at the treaty level.

3.2 Treaty Law

To date, many treaties regulating marine pollution have been concluded. Concerning treaty practice, three basic approaches can be identi The

first

fied.

fic approach. This approach seeks to regulate fied source or substance of marine pollution, such as vessel-source speci fic substance, such as oil. State practice has shown that from the

approach is the source-speci

and control a speci pollution, or a

1960s to the 1970s, the majority of global conventions adopted a source- or substancespeci

fic

approach. A typical example may be provided by MARPOL. This instrument

seeks to achieve the complete elimination of international pollution of the marine environment from a speci

fic

40

source, that is to say, a vessel.

Another important

example in this category is the 1972 London Dumping Convention. The 1972 London Dumping Convention, as amended in 1978, 1980, 1989, 1993 and 1996, seeks to prevent marine pollution caused by a speci level.

fic

source, that is to say, dumping at the global

41

The second approach is the regional approach which aims to regulate marine pollution in a certain region (Table 8.1).

42

These treaties seek to regulate various sources of marine

pollution in a (quasi-) comprehensive manner.

fic approach, which combines the sourcefic approach with the regional approach. A case in point is the 1974 Convention for the

The third approach is the regional source-speci speci

Prevention of Marine Pollution from Land-Based Sources. This Convention sought to prevent marine pollution from a speci

40 41 42

fic,

land-based source in the North-East Atlantic

Preamble of MARPOL 73/78. The 1972 London Dumping Convention was entirely replaced by a new protocol adopted in 1996. For an analysis of the regional approach, see T. Treves, ‘L’approche régionale en matière de protection de l’environnement marin ’, in La mer et son droit: Mélanges offerts à Laurent Lucchini et Jean Pierre Quéneudec (Paris, Pedone, 2003), pp. 591 –610; D. M. Dzidzornu, ‘Marine Environment Protection under Regional Conventions: Limits to the Contribution of Procedural Norms’ (2002) 22 ODIL, pp. 263 –316.

332

Protection of Community Interests at Sea

T A B L E 8 . 1 E X A M P L E S O F TR E A T IE S W H IC H A D O P T T H E R E G IO N A L A P P R O A C H

Year

Title of Treaty

1974

Convention on the Protection of the Environment of the Baltic Sea Area

1976

Convention for the Protection of the Mediterranean Sea against Pollution

1978

Kuwait Regional Convention for Cooperation on the Protection of the Marine Environment from Pollution

1981

Convention for the Protection of the Marine Environment and Coastal Area of the South-East Paci

1981

Convention for Cooperation in the Protection and Development of the Marine and Coastal

fic

Environment of the West and Central African Region 1982

Regional Convention for the Conservation of the Red Sea and Gulf of Aden Environment

1983

Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region

1985

Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Eastern African Region

fi

1986

Convention for the Protection of the Natural Resources and Environment of the South Paci c Region

1992

Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR)

1992

Convention on the Protection of the Marine Environment of the Baltic Sea Area

1995

Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean

area.

43

In addition to this, there are several Protocols for the regulation of land-based

marine pollution in certain regions.

44

4 PROTECTION OF THE MARINE ENVIRONMENT IN THE LOSC

At the global level, a comprehensive legal framework for the protection of the marine environment was, for the

first time, established in the LOSC. Part XII of the Convention is

devoted to the protection and preservation of the marine environment. The legal framework for marine environmental protection under the LOSC may be characterised by three elements.

4.1 Generality and Comprehensiveness

The LOSC established a general and comprehensive framework for marine environmental protection. It is general in its nature because the Convention provides an obligation on all States to prevent marine pollution. Article 192 explicitly states: ‘ States have the obligation

fication.

to protect and preserve the marine environment.’ This obligation contains no quali

According to the ordinary meaning, the term ‘ marine environment’ includes the ocean as a whole, without distinguishing marine spaces under and beyond national jurisdiction. It

43 44

(1974) 13 ILM, p. 352. This Convention was replaced by the 1992 OSPAR Convention. These Protocols will be examined in section 5 of this chapter.

333

Protection of the Marine Environment follows that the general obligation embodied in Article 192 covers the ocean as a whole, including the high seas.

45

The ‘ general obligation’ under Article 192 extends both to

‘ protection’ of the marine environment from future damage and ‘preservation ’ in the sense

of maintaining or improving its present condition. Article 192 thus entails both the positive obligation to take active measures to protect and preserve the marine environment as a whole, and the negative obligation not to degrade the marine environment at the same time.

46

The framework set out in the LOSC is comprehensive in the sense that it covers all sources of marine pollution. Indeed, Article 194(1) obliges States to take all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source, using for this purpose the best practicable means at their disposal and in accordance with their capabilities. Article 194(3) further provides that the measures taken pursuant to Part XII shall deal with all sources of pollution of the marine environment. Thus the LOSC marks an important advance over the earlier Geneva Conventions, which cover only limited sources of marine pollution.

flect a paradigm shift in the international law of the marine

Overall the LOSC seems to re

environment from the freedom to pollute to an obligation to prevent pollution. Under the LOSC, the primary focus is not on obligations of responsibility for damage, but on general and comprehensive regulation to prevent marine pollution. In this sense, it may be said that the cardinal principle of the legal regime for the protection of the marine environment changed from the discretion of States to the duty of protection by States. Owing to the wide rati

fication of the Convention as well as the degree of acceptance of various treaties on the

protection of the marine environment, there may be room for the view that obligations for the protection of the marine environment embodied in the LOSC have become part of customary law.

47

4.2 Uniformity of Rules

The second innovative element in the LOSC concerns the uniformity of rules relating to the regulation of marine pollution. It is desirable that the rules and standards protecting the marine environment should maintain an international minimum harmonisation. In this regard, particular attention must be devoted to the ‘ rules of reference’ . The LOSC often incorporates a ‘no less effective ’ standard or ‘ at least have the same effect 48

obligation ’ into its relevant provisions.

45

With respect to the prevention of pollution arising

P. Chandrasekhara Rao and P. Gautier, The International Tribunal for the Law of the Sea: Law, Practice and Procedure (Cheltenham, Edward Elgar, 2018), p. 327.

46 47

PCA Case No. 2013– 19. The South China Sea Arbitration (Merits), Award of 12 July 2016, para. 941. Virginia Commentary, vol. 4, pp. 36 et seq.; Birnie et al., International Law and the Environment, p. 387; P. Sands and J. Peel with A. Fabra and R. MacKenzie, Principles of International Environmental Law (Cambridge University Press, 2012), p. 350.

48

The list of legal instruments corresponding to ‘generally accepted international rules and standards’ is available in: IMO, Circular letter No. 2456, Implication of UNCLOS for the Organization, 17 February 2003, Annex II.

334 Protection of Community Interests at Sea from seabed activities subject to national jurisdiction, for instance, Article 208(3) requires coastal States to adopt seabed operations laws which ‘ shall be no less effective than international rules, standards and recommended practices and procedures’ . Such international rules include the 1990 International Convention on Oil Pollution Preparedness, Response and Cooperation (hereinafter the OPRC)

49

and the 2000 Protocol to the Conven-

tion. Article 210(6) obliges States to adopt dumping regulations which ‘shall be no less effective in preventing, reducing and controlling such pollution than the global rules and standards ’ . It is generally considered that such global rules and standards are set out by the 1972 London Dumping Convention and its 1996 Protocol. Similarly, Article 211(2) stipulates that

50

flag State regulation of vessel pollution must

‘ at

least have the same effect as that of generally accepted international rules and standards established through the competent international organization or general diplomatic conference ’. Such international rules are embodied in MARPOL. The reference to internationally agreed rules and standards was also made in relation to atmospheric and land-based pollution under Articles 207(1) and 212(1), though only in a weaker manner. The legal technique of ‘ rules of reference’ contributes to maintain uniformity of national and international regulation with regard to marine environmental protection. Furthermore, by updating ‘generally accepted international rules and standards ’, it becomes possible to adapt relevant rules of the LOSC to a new situation. Thus ‘ rules of reference’ can be considered as a useful tool to take the new demands of the international community into account in the interpretation and application of existing rules and standards. In some cases, however, a question may arise of whether or not an instrument can be regarded as generally accepted. An interpretation is that an instrument is quali

fied

as generally accepted if it

entered into force. This interpretation is uncontroversial in the case of some of the major treaties, such as the SOLAS and most Annexes of the MARPOL representing over 90 per cent of the world’ s

fleet in terms of tonnage. Yet the same cannot be true of some of the

more recent treaties that have just entered into force but have much lower participation rate. This issue needs to be considered on a case-by-case basis.

51

In relation to this, it is to be noted that international organisations have a valuable role in the formulation of internationally agreed rules and standards. In fact, the LOSC contains many provisions referring to the ‘ competent international organization’ . Corresponding to these provisions, a number of agreements, regulations and standards have been adopted under the auspices of the IMO. The international instruments adopted under the auspices of the IMO have become more important since the entering into force of the LOSC because Parties to the Convention shall follow the international standards created through the IMO by virtue of ‘rules of reference ’. In this regard, some argue that to the extent that these rules are ‘ applicable’ or ‘generally accepted ’ they may be invoked by port States or by coastal

49 50 51

(1991) 30 ILM, p. 735. Entered into force 13 May 1995. L. A. De La Fayette, ‘The London Convention 1972: Preparing for the Future’ (1998) 13 IJMCL, p. 516. Harrison, Saving the Oceans, pp. 140–141. See also J. Harrison, Making the Law of the Sea: A Study in the Development of International Law (Cambridge University Press, 2011), pp. 171–179.

335

Protection of the Marine Environment States to legitimise action against ships of third States. According to this view, the power to invoke rules and standards does not depend upon whether the

flag State of that particular

ship is a party to the relevant conventions due to their widespread adoption.

52

4.3 Obligation to Cooperate in the Protection of the Marine Environment

As marine pollution may easily spread beyond man-made delimitation lines, the protection of the marine environment from pollution can hardly be achieved by a single State. Thus ITLOS, in the 2001

MOX Plant

case, highlighted the importance of international cooper-

ation, stating:

[T]he duty to cooperate is a fundamental principle in the prevention of pollution of the marine 53

environment under Part XII of the Convention and general international law.

It is notable that the LOSC provides explicit obligations of cooperation in order to prevent marine pollution. For instance, Article 197 stipulates that States shall cooperate ‘on a global basis and, as appropriate, on a regional basis, directly or through competent international organizations, in formulating and elaborating international rules, standards and recommended practices and procedures consistent with this Convention, for the protection and preservation of the marine environment, taking into account characteristic regional fea54

tures’ .

The terms ‘on a global basis ’ and ‘on a regional basis ’ appear to suggest that the

scope of this provision is not limited to marine spaces under national jurisdiction. Article 198 obliges a State to immediately notify other States it deems likely to be affected by such damage, as well as the competent international organisations, when a State becomes aware of cases in which the marine environment is in imminent danger of being damaged or has been damaged by pollution. It can be argued that this obligation already represents customary international law.

55

Where imminent danger exists, the State

in the area affected as well as the competent international organisations shall ‘cooperate, to the extent possible, in eliminating the effects of pollution and preventing or minimizing the damage ’ and ‘ jointly develop and promote contingency plans for responding to pollution incidents in the marine environment ’.

56

Obligations of cooperation are also provided in

provisions relating to the physical investigation of foreign vessels, liability.

58

57

and responsibility and

Further to this, the obligation to cooperate in the establishment of relevant rules

is indirectly enshrined in provisions concerning land-based pollution,

52

59

pollution from

R. Wolfrum, ‘IMO Interface with the Law of the Sea Convention’, in M. H. Nordquist and J. N. Moore,

Maritime Issues and the International Maritime Organization International Law and the Environment Sea MOX Plant

Current

(The Hague, Nijhoff, 1999), p. 231; Birnie et al.,

, p. 389; D. Rothwell and T. Stephens,

The International Law of the

(Oxford and Portland, Oregon, Hart Publishing, 2010), p. 344.

53 54 55 56

The

case (Request for provisional measures), ITLOS Reports 2002, p. 110, para. 82.

fl ects customary international law.

The OSPAR Convention states in its preamble that Article 197 re

A. Boyle, ‘Marine Pollution under the Law of the Sea Convention’ (1985) 79 LOSC, Article 199.

57

LOSC, Article 226(2).

58

LOSC, Article 235(3).

AJIL

, p. 369.

59

LOSC, Article 207(4).

336 Protection of Community Interests at Sea seabed activities subject to national jurisdiction, from vessels

62

60

61

pollution from dumping,

and pollution from or through the atmosphere.

63

pollution

In addition, the obligation

to cooperate is particularly important in the environmental protection of enclosed or semienclosed seas. Thus Article 123 requires States to endeavour to coordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment.

64

Overall it may be concluded that the LOSC anticipates a comprehensive

regulation of marine pollution in the oceans as a whole.

5 R E G U L A T I O N O F L A N D - B A S E D M AR I N E P O L L U T I O N

5.1 Limits of the Global Legal Framework The LOSC is the only treaty which provides general obligations to prevent land-based pollution at the global level. It is clear that land-based pollution is covered by Article 194(1). Article 194 (2) imposes a duty upon States to take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment; and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with the LOSC. Article 194(3)(a) stipulates that measures taken pursuant to Part XII shall include, inter alia, those designed to minimise to the fullest possible extent ‘the release of toxic, harmful or noxious substances, especially those which are persistent, from land-based sources, from or through the atmosphere or by dumping’ . More speci

fically, the LOSC provides prescriptive and enforcement jurisdiction with regard

to the regulation of land-based pollution. With respect to prescriptive jurisdiction, Article 207 (1) calls upon States to adopt laws and regulations to prevent, reduce and control pollution of the marine environment from land-based sources, ‘taking into account internationally agreed rules, standards and recommended practices and procedures ’. Concerning the enforcement jurisdiction, Article 213 requires States to enforce their laws and regulations adopted under Article 207 and to take other measures necessary to implement applicable international rules and regulations. States are also under a duty to take other measures as may be necessary to prevent, reduce and control such pollution under Article 207(2).

fica-

Nonetheless, these provisions are too general to be very useful. Hence further speci tion would be needed with regard to, inter alia, the identi

fication of harmful substances. It

must also be noted that unlike pollution from seabed activities subject to national jurisdiction, pollution from dumping as well as pollution from vessels, ‘ take

65

States are required only to

into account’ internationally agreed rules etc. when adopting relevant laws and

regulations concerning pollution from land-based sources.

66

It would seem to follow that

States may adopt measures which are either more or less stringent than those embodied in

60 64 65

LOSC, Article 208(5). See also the

61

LOSC, Article 210(4).

South China Sea

62

LOSC, Article 211(1).

Arbitration Award (Merits), paras. 984

LOSC, Articles 208(3), 210(6) and 211(2).

66

et seq.

LOSC, Article 207(1).

63

LOSC, Article 212(3).

337 Protection of the Marine Environment international law. To this extent, control by internationally agreed criteria over national standards remains modest. Thus, under the LOSC, the balance between national and international laws on this matter is in favour of national laws. In response to the weakness of the global legal framework, attempts have been made to develop

a

global

instrument

respecting

land-based

pollution,

in

particular

under

the

auspices of the UN Environment Programme (UNEP). An important outcome was the adoption of the Montreal Guidelines for the Protection of the Marine Environment against Pollution from Land-Based Sources in 1985. While the Montreal Guidelines are of a voluntary nature, they specify various measures which should be taken by each State. Later, a need for the prevention of degradation of the marine environment by land-based activities was stressed by Agenda 21 of 1992. Agenda 21 required that the UNEP Governing Council should be invited to convene, as soon as practicable, an intergovernmental meeting on 67

the protection of the marine environment from land-based activities.

The global conference

envisaged in Agenda 21 was held in Washington DC, from 23 October to 3 November 1995. In this conference, two instruments were adopted: the Washington Declaration on the Protection of the Marine Environment from Land-Based Activities (hereinafter the 1995 Washington Declaration) and the Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities (hereinafter the 1995 GPA). The 1995 GPA explicitly ensures 68

the application of the precautionary approach to this issue.

The need to improve and

firmed in the 2001 Montreal Declar-

accelerate the implementation of the 1995 GPA was con

69

ation on the Protection of the Marine Environment from Land-Based Activities

and the

2012 Manila Declaration on Furthering the Implementation of the Global Programme of Action for the Protection of the Marine Environment from Land-based Activities.

70

Overall it can be observed that attempts to address land-based marine pollution at the global level have been made only in the form of less formal instruments (Table 8.2). In this sense, regulation at the global level remains weak. In this regard, four comments can be made. First, in essence, the activities which may cause land-based pollution are within the territorial sovereignty of each State, and such activities are closely bound up with crucial national programmes for the economic, industrial and social development of those countries. The economic costs of measures to regulate land-based pollution are seen as high and inevitably affect economic development. Hence States are often reluctant to approve any attempts at restricting their economic developments by legally binding instruments. Second, the regulation of land-based pollution is more complex than that of pollution from other sources. In the case of vessel-source pollution, for instance, sources and substances to be regulated

–

mainly oil and oily mixtures

–

can be clearly identi

fied.

However, the regulation of land-based pollution involves more substances than oil and oily mixtures. Land-based sources are variable in their nature over time, and each source

67 70

Paragraph 17.26.

68

Paragraphs 23(h)(i) and 24.

69

(2002) 48

Law of the Sea Bulletin, pp. 58–61.

UNEP/GPA/IGR.3/CRP.1/Rev.1, 26 January 2012, available at: http://wedocs.unep.org/handle/ 20.500.11822/13212.

338 Protection of Community Interests at Sea

TABLE 8.2 NON-BINDING INSTRUMENTS CONCERNING LAND-BASED MARINE POLLUTION Year

Title of Instrument 71

1985

Montreal Guidelines for the Protection of the Marine Environment against Pollution from Land-based Sources

1992

Agenda 21

1995

Washington Declaration on the Protection of the Marine Environment from Land-based Activities

1995

Global Programme of Action for the Protection of the Marine Environment from Land-based Activities

72

(1995 Global Programme of Action)

73

74

75

2001

Montreal Declaration on the Protection of the Marine Environment from Land-Based Activities

2012

Manila Declaration on Furthering the Implementation of the Global Programme of Action for the Protection of the Marine Environment from Land-based Activities

requires different measures to prevent environmental damage.76 This requirement makes regulatory measures complex. In the case of vessel-source pollution, ships are the only actor, and the shipping industry is the major economic sector to be regulated. By contrast, many actors and activities, such as pollution-generating industrial, agricultural and municipal activities, are involved in pollution from land-based activities. The regulation of landbased marine pollution at the global level is therefore more problematic than in the case of vessel-source pollution because, in the former case, it is more difficult to balance the regulation of such pollution with various national economic policies. 77 Third, attention should be drawn to geographical and ecological divergences in the oceans. The ocean environment is not homogeneous. The movements of ocean currents and winds are complex and different and, consequently, the degree of marine pollution varies in each coastal region. Considering that the effects of land-based pollution are more serious in shallow enclosed or semi-enclosed coastal sea areas than open oceanic areas, more stringent regulation of land-based pollution in the former than in other marine areas will be needed. In fact, almost all regional agreements governing this issue are essentially concerned with enclosed or semi-enclosed seas. 78 Finally, it is important to note that the protection of the marine environment from landbased pollution is closely linked to widespread poverty in developing countries. In fact, the 1995 Washington Declaration clearly recognises that the alleviation of poverty is an essential factor in addressing the impacts of land-based activities on coastal and marine areas.79 71 72 73 74

For a comprehensive analysis of these Guidelines, see M. Quing-Nan, Land-Based Marine Pollution: International Law Development (Graham & Trotman/Nijhoff, 1987), pp. 163 215. This document is available at: https://sustainabledevelopment.un.org/outcomedocuments/agenda21. This document is available at: http://wedocs.unep.org/handle/20.500.11822/13421. UNEP(OCA)/LBA/IG.2/7 5, December 1995, available at: https://papersmart.unon.org/resolution/uploads/ 1995-gpa.pdf. Concerning the implementation of the Global Programme of Action, see D. L. VanderZwaag and A. Powers, The Protection of the Marine Environment from Land-Based Pollution and Activities: Gauging the Tides of Global and Regional Governance (2008) 23 IJMCL, pp. 423 52. (2002) 48 Law of the Sea Bulletin, pp. 58 61. A. L. Dahl, Land-Based Pollution and Integrated Coastal Management (1993) 17 Marine Policy, p. 567. Meng Quing-Nan, Land-Based Marine Pollution: International Law Development (London, Nijhoff, 1987), p. 16. Birnie et al., International Law and the Environment, p. 455. It is to be noted that States bordering an enclosed or semi-enclosed sea are required to endeavour to coordinate the implementation of their rights and duties with respect to the protection of the marine environment (Article 123(b)). Paragraph 5 of its Preamble. –

‘

75 76 77 78

79

’

–

–

‘

’

339

Protection of the Marine Environment Likewise, the 2001 Montreal Declaration on the Protection of the Marine Environment from Land-Based Activities makes clear that poverty, particularly in coastal communities of developing countries, contributes to marine pollution through lack of basic sanitation. Marine degradation generates poverty by depleting the very basis for social and economic development.

80

This is a vicious circle. Hence the regulation of land-based pollution should

be considered in the context of combating poverty in developing countries.

5.2 Development of Regional Treaties

Owing to economic, technological and geographical divergences in the world, it appears dif

ficult,

if not impossible, to establish at the global level uniform and detailed rules

regulating land-based pollution. It would seem to follow that a regional agreement which contains more speci

fic

rules will assume considerable importance to combat land-based

pollution. In fact, treaties regulating marine pollution, including pollution from land-based sources, are increasingly concluded at the regional level (see Table 8.3). Concerning those treaties, it is relevant to note that internal waters are covered in the conventions ’ application.

81

Owing to the importance of a sound environment of coastal

areas for human health and biological diversity, regulation of land-based marine pollution in internal waters is particularly important. It is also to be noted that all documents listed above regard pollution through the atmosphere as land-based marine pollution.

82

While the

detailed examination of each and every regional treaty is beyond the scope of this chapter, some innovative elements must be highlighted.

fi

5.3 Identi

Identi

cation of Harmful Substances

fication

of harmful substances is the starting point in the regulation of land-based

marine pollution. In this regard, treaties regulating land-based pollution traditionally adopted the black/grey lists approach. Under this approach, harmful substances are divided into two categories. With respect to the substances listed in a black list, in principle, States Parties are obliged to eliminate pollution by such substances.

83

Concerning materials

enumerated in the grey list, the obligation of States is relaxed, and States are merely required to limit pollution by these materials. The black/grey list approach was adopted by the 1974 Convention for the Prevention of Marine Pollution from Land-Based Sources 84

(hereinafter the 1974 Paris Convention),

the 1974 Convention on the Protection of the 85

Marine Environment of the Baltic Sea Area (hereinafter the 1974 Helsinki Convention), 86

the 1980 Athens Protocol,

87

the 1983 Quito Protocol

88

and the 1992 Bucharest Protocol.

However, the black/grey approach is not free from controversy.

80 81

(2002) 48

Law of the Sea Bulletin, p. 58.

Article 3 of the 1980 Athens Protocol; Article I of the 1983 Quito Protocol; Article II of the 1990 Kuwait Protocol; Article 1(a) of the OSPAR Convention; Article 1 of the Helsinki Convention; Article 3 of the 1992 Bucharest Protocol; Article 3(c) of the 1996 Syracuse Protocol.

82

Article 4(1)(b) of the 1980 Athens Protocol; Article II(c) of the 1983 Quito Protocol; Article III(d) of the 1990 Kuwait Protocol; Article 1 of the 1992 Bucharest Protocol; Article 2 of the 1992 Helsinki Convention; Article 1(e) of the 1992 OSPAR Convention; Article 4(1)(b) of the 1996 Syracuse Protocol; Article I(4) of the 1999 Aruba Protocol; Article 4(1)(b) of the 2005 Jeddah Protocol.

83

In some cases, however, the discharge of harmful substances which are enumerated in the black list is not completely prohibited.

84

Article 4.

85

Articles 5 and 6.

86

Articles 5 and 6.

87

Articles IV and V.

88

Article 4.

340 Protection of Community Interests at Sea

TABLE 8.3 PRINCIPAL REGIONAL TREATIES REGULATING LAND-BASED MARINE POLLUTION Year

Title of Treaty

1980

Protocol for the Protection of the Mediterranean Sea against Pollution from Land-Based Sources (the Athens Protocol)

1983

89

Protocol for the Protection of the South-East Paci 1983 Quito Protocol)

1990

fic against Pollution from Land-Based Sources (the

90

Protocol to the Kuwait Regional Convention for the Protection of the Marine Environment against Pollution from Land-Based Sources (the 1990 Kuwait Protocol)

1992

91

Protocol on Protection of the Black Sea Marine Environment against Pollution from Land-Based Sources (the 1992 Bucharest Protocol)

92

93

1992

Convention on the Protection of the Marine Environment of the Baltic Sea (the 1992 Helsinki Convention)

1992

Convention for the Protection of the Marine Environment of the North-East Atlantic (the 1992 OSPAR Convention)

1996

94

Protocol for the Protection of the Mediterranean Sea against Pollution from Land-Based Sources and Activities (the 1996 Syracuse Protocol)

1999

95

Protocol Concerning Pollution from Land-Based Sources and Activities to the Convention for the Protection 96

and Development of the Marine Environment of the Wider Caribbean Region (the 1999 Aruba Protocol) 2005

Protocol Concerning the Protection of the Marine Environment from Land-Based Activities in the Red Sea and Gulf of Aden (the 2005 Jeddah Protocol)

2010

97

Protocol for the Protection of the Marine and Coastal Environment of the Western Indian Ocean from Land-Based Sources and Activities (the Nairobi Protocol)

2012

98

Additional Protocol to the Abidjan Convention Concerning Cooperation in the Protection and Development of Marine and Coastal Environment from Land-Based Sources and Activities in the 99

Western, Central and Southern African Region (the Abidjan Protocol)

First, it seems problematic that regulatory measures applicable to the same substances vary depending on agreements. For instance, mercury and cadmium were in Annex II (the grey list) in the 1974 Helsinki Convention, while these materials were categorised in the 89

90 91 92 93 94 95 96 97 98 99

1328 UNTS , p. 105; (1980) 19 ILM, p. 869. Entered into force 17 June 1983. In 1996, this Protocol was amended and recorded as the Protocol for the Protection of the Mediterranean Sea against Pollution from Land-Based Sources and Activities. Amendments to the Protocol entered into force 11 May 2008. Entered into force in 1986. For the text of the Protocol: www2.ecolex.org/server2neu.php/libcat/docs/TRE/ Full/En/TRE-000768.txt. Entered into force 2 January 1993. For the text of the Protocol: http://sedac.ciesin.columbia.edu/entri/texts/ acrc/kuwaitprot.txt.html. (1993) 32 ILM, p. 1122. Entered into force 15 January 1994. Entered into force 17 January 2000. The text of the agreement is available at: www.helcom.fi/. Entered into force 25 March 1998. The text of the Convention is available at the home page of OSPAR: https://www.ospar.org/. Entered into force 11 May 2008. For the text of the Protocol, see http://ec.europa.eu/world/agreements/ downloadFile.do?fullText=yes&treatyTransId=1334. Entered into force 13 August 2010. The text of the Protocol is available at: http://cep.unep.org/repcar/lbsprotocol-en.pdf. The original text is written in Arabic. Not yet in force. Text of the Protocol is available at: http://web.unep.org/nairobiconvention/protocolprotection-marine-and-coastal-environment-wio-land-based-sources-and-activities. Not yet in force. Text of the Protocol is available at: https://iea.uoregon.edu/treaty-text/2012-protocol1981-protocolpollutionemergency-1981.

341 Protection of the Marine Environment black list in the 1974 Paris Convention, the 1980 Athens Protocol, the 1983 Quito Protocol and the 1992 Bucharest Protocol. While radioactive substances were in Annex I (the black list) in the 1980 Athens Protocol as well as the 1983 Quito Protocol, such substances were listed in Annex II (the grey list) in the 1974 Helsinki Convention. Second and more importantly, the black/grey list approach is contrary to the fundamental goal of preventing all marine pollution since, according to this approach, States are merely under a relaxed obligation with respect to ‘grey list ’ substances. In response to these problems, an attempt was made to replace the black/grey list approach by a uniform approach, which seeks to regulate harmful substances of landbased pollution without any differentiation of obligations according to the category of harmful substances. The best example on this matter may be the 1992 OSPAR Convention. Article 3 of this Convention places an explicit obligation upon the Contracting Parties to take, individually and jointly, all possible steps to prevent and eliminate pollution from land-based sources in accordance with the provisions of the Convention, in particular as provided for in Annex I. To this end, the OSPAR Convention provides a single list of priority pollutants in Appendix 2.

100

This list is in essence a combination of the ‘black and grey lists’

laid down in the Annexes of the 1974 Paris Convention. It follows that the ‘ grey list’ substances under the 1974 Paris Convention are also covered by the same obligation of preventing and eliminating these pollutants embodied in the OSPAR Convention.

101

However, Article 2(1) of Annex I stipulates: ‘ Point source discharges to the maritime area, and releases into water or air which reach and may affect the maritime area, shall be strictly subject to authorisation or regulation by the competent authorities of the Contracting Parties ’. It would seem to follow that point source discharges would be possible with the authorisation of or regulation by relevant authorities. At the same time, Article 2(1) of Annex I makes it clear that ‘ [s]uch authorisation or regulation shall, in particular, implement relevant decisions of the Commission which bind the relevant Contracting Party ’. As will be seen, the OSPAR Commission, made up of representatives of each of the Contracting Parties, is under an obligation to draw up plans for the reduction and phasing out of hazardous substances in accordance with Article 3(a) of Annex I. Thus, the authorisation or regulation by the Contracting Parties with respect to emissions of such substances is subject to the control of the OSPAR Commission. Like the OSPAR Convention, the 1992 Helsinki Convention, the 1996 Syracuse Protocol (which replaced the 1980 Athens Protocol), the 1999 Aruba Protocol and the 2005 Jeddah Protocol also make no differentiation between obligations on this matter. The uniform approach seems to re

flect this paradigm shift in marine environmental protection from the

principle of freedom to pollute to an obligation to prevent pollution. In this sense, it may be said that the replacement of the black/grey approach by the uniform approach is an important development in this

100 101

field.

See also Article 1(2) of Annex I of the OSPAR Convention. M. Pallemaerts, ‘The North Sea and Baltic Sea Land-Based Sources Regimes: Reducing Toxics or Rehashing Rhetoric? ’ (1998) 13

IJMCL, pp. 438–439; E. Hey, T. Ijlstra and A. Nollkaemper, ‘The 1992 Paris Convention

for the Protection of the Marine Environment of the North-East Atlantic: A Critical Analysis ’ (1993) 8

IJMCL , pp. 19–20.

342

Protection of Community Interests at Sea

5.4 Precautionary Approach

As

with

the

conservation

of

marine

living

resources,

the

precautionary

approach

is

enshrined in some regional agreements respecting marine environmental protection. For instance, Article 2(2)(a) of the OSPAR Convention places an explicit obligation upon the Contracting Parties to apply the ‘precautionary principle ’. As the precautionary principle is considered a general obligation, it is also applicable to land-based pollution. Likewise, Article 3(2) of the 1992 Helsinki Convention explicitly obliges the Contracting Parties to apply the precautionary principle as one of the fundamental principles and obligations of the 1992 Helsinki Convention. Thus the Contracting Parties are under a duty to apply this principle to the regulation of land-based pollution. Likewise Article 4(2)(a) of the 2010 Nairobi Protocol and Article 5(2) of the 2012 Abidijan Protocol also provide an obligation to apply the precautionary principle. In addition, the 1996 Syracuse Protocol refers to the ‘ precautionary principle’ in its Preamble. The application of the precautionary approach

strengthens the environmental dimension of international law in this

field.

On the other hand, the application of this approach may entail the risk of restricting economic and industrial activities by States, and this is particularly true of the regulation of land-based activities. A dif

ficult question thus arises as to how it is possible to reconcile

environmental protection with economic interests. In response, there will be a need to take into account not only scienti

fic

factors but also economic, social and political factors,

including cost-effectiveness. Considering that the evaluation of those factors amounts in essence to policy-making by States, the application of the precautionary approach will depend on the political determination of each State. Hence, as discussed earlier, it may have to be accepted that the normativity of this approach will remain modest both as a rule of conduct and as a rule for adjudication.

102

In order to minimise inconsistency between

national policies concerning the precautionary approach, it is desirable that the application of the precautionary approach should be decided by an international forum, such as the Conference of the Parties (COP) in relevant treaties.

5.5 Environmental Impact Assessment and Monitoring

In the implementation of relevant rules regulating harmful substances discharged from land-based sources, there is a need to examine the impact of planned activities upon the marine environment as well as the effectiveness of regulatory measures. Here environmental impact assessment comes into play.

103

According to the ‘Goals and Principles of Environmental Impact Assessment ’, which was adopted by the UNEP in 1987, environmental impact assessment means ‘ an examination, analysis and assessment of planned activities with a view to ensuring environmentally

102 103

See Chapter 7, section 5.3 of this book. Generally on this issue, see N. Craik, The International Law of Environmental Impact Assessment: Process, Substance and Integration (Cambridge University Press, 2008).

343 Protection of the Marine Environment sound and sustainable development ’.

104

The ICJ, in the Pulp Mills case, held that an

environmental impact assessment is a requirement under general international law.

105

The ITLOS Seabed Disputes Chamber also stressed that the obligation to conduct an environmental impact assessment is a general obligation under customary international law.

106

As environmental conditions may change with time, there is a need to continue monitoring the ongoing environmental risks and impacts after a project has begun. Accordingly, environmental impact assessment must be complemented by a monitoring system.

107

The

obligations to conduct an environmental impact assessment and monitoring are provided in LOSC Articles 204, 205 and 206.

108

Article 204(1) requires States to endeavour, as far as

practicable, to observe, measure, evaluate and analyse the risks or effects of pollution of the marine environment. Article 205 places an obligation upon States to publish reports of the results obtained pursuant to Article 204 to the competent international organisations, which should make them available to all States. Furthermore, Article 206 holds:

109

When States have reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or signi

fi

cant and harmful changes to

the marine environment, they shall, as far as practicable, assess the potential effects of such activities on the marine environment and shall communicate reports of the results of such assessments in the manner provided in article 205.

Given that environmental impact assessment is ‘ a requirement under general international law, ’ a State whose activities cause serious land-based marine pollution can no longer deny responsibility on grounds of non-foreseeability if it has not conducted such an assessment.

110

In this sense, environmental impact assessments may limit the margin of discre-

tion of States in their environmental policy-making. Furthermore, environmental impact assessments, coupled with monitoring activities, can be a tool to assess the existence of risks which may trigger the application of this principle. To this extent, environmental impact assessment may stimulate the application of the precautionary approach.

104

Preamble. For the text, see P. Birnie and A. Boyle, Basic Documents on International Law and the

Environment (Oxford University Press, 1995), pp. 27–30. The 1991 Convention on Environmental Impact Assessment in a Transboundary Context de

fines environmental impact assessment as

‘a national procedure

for evaluating the likely impact of a proposed activity on the environment ’ (Article 1(vi)). Entered into force 10 September 1997. Text in: (1991) 30 ILM p. 802. 105 106 107 108

Pulp Mills on the River Uruguay (Argentina v Uruguay) , ICJ Reports 2010, p. 83, para. 204. 2011 ITLOS Advisory Opinion, ITLOS Reports 2011, p. 50, para. 145. The Pulp Mills case, ICJ Reports 2010, pp. 83– 84, para. 205. Generally on this issue, see L. Kong, ‘Environmental Impact Assessment under the United Nations Convention on the Law of the Sea ’ (2011) 10 Chinese Journal of International Law, pp. 651– 669.

109

This formulation is basically re

flected in Article VII(2) of the 1999 Aruba Protocol. A similar obligation is

also provided in Article VIII(1) of the 1990 Kuwait Protocol. According to the Annex VII Arbitral Tribunal, ‘the obligation to communicate reports of the results of the assessment is absolute ’.

Arbitration Award (Merits), para. 948. 110

A. Boyle, ‘Land-Based Sources of Marine Pollution’ (1992) 16 Marine Policy , p. 23.

The South China Sea

344

Protection of Community Interests at Sea

5.6 International Control

Like other branches of international law, the establishment of effective compliance procedures is of paramount importance in the law of the sea. In this regard, international control through international institutions is increasingly important in order to secure compliance with treaties. International control is a concept with more than one meaning, but this concept may be de

fined

as procedures through multilateral international institutions for

supervising compliance with objective obligations in a treaty. International control seeks to supervise compliance with treaties by a variety of procedures, such as reporting from States Parties, veri

fication

and decisions, as well as recom-

mendations. Such an international control mechanism has been developed particularly in international human rights law, and currently many agreements with regard to environmental protection are adopting a similar mechanism. International control may provide a useful means to ensure compliance with rules of international law, where such rules do not rely exclusively on the traditional principle of reciprocity. In particular, two methods of international control merit highlighting.

(a) The Reporting System One means involves the reporting system.

111

The reporting system has been introduced into

several regional conventions with regard to the regulation of land-based marine pollution. For instance, Article 13(1) of the 1996 Syracuse Protocol requires the Parties to submit reports every two years to the meetings of the Contracting Parties of measures taken, results achieved and, if the case arises, of dif

ficulties

encountered in the application of the

Protocol. The reports submitted by the Parties are to be considered by the meetings of the Parties in accordance with Article 14(2)(f ). A similar reporting system or an obligation to exchange

information

through

the

organisation 112

Protocol, Protocol,

114 117

the 1990 Kuwait Protocol, the 2010 Nairobi Protocol

by

the

the 1983 Quito Protocol,

115

118

established

113

provided in the 1980 Athens Protocol,

regional

116

the 1999 Aruba Protocol,

treaty

is

the 1992 Bucharest the 2005 Jeddah 119

and the 2012 Abidjan Protocol.

Furthermore, the Helsinki Convention provides detailed reporting obligations. Article 16(1) of the Convention places an obligation upon the Contracting Parties to report to the Baltic Marine Environment Protection Commission (hereinafter the Helsinki Commission) at regular intervals on:

(a) the legal, regulatory, or other measures taken for the implementation of the provisions of this Convention, of its Annexes and of recommendations adopted thereunder;

111

fl ections on Reporting Systems in

For an analysis in some detail of the reporting system, see Y. Tanaka, ‘Re

Treaties Concerning the Protection of the Marine Environment ’ (2009) 40 112 118

Article 13. Article 16.

113 119

Article IX. Article 17.

114

Article 7.

115

Article XII.

ODIL, pp. 146

116

–170.

Article XII.

117

Article 18.

345 Protection of the Marine Environment (b) the effectiveness of the measures taken to implement the provisions referred to in subparagraph (a) of this paragraph; and (c) problems encountered in the implementation of the provisions referred to in subparagraph (a) of this paragraph.

Article 16(2) further requires that on the request of a Contracting Party or of the Helsinki Commission, Contracting Parties shall provide information on discharges permits, emission data or data on environmental quality as far as possible. Moreover, Annex III of the Convention calls upon the operator of an industrial plant to submit data and information to the appropriate national authority using a form of application. In this regard, at least the following data and information shall be included in the application form: general information, actual situation and/or planned activities, alternatives and their various impacts concerning ecological, economic and safety aspects.

120

On the basis of the reports submit-

ted by the Contracting Parties, the Helsinki Commission is to keep the implementation of the Convention under continuous observation. exists in the OSPAR Convention.

122

121

A comparable reporting system also

These detailed reporting systems are useful in preclud-

fil the reporting obligation or from reporting ficially to the relevant international institutions. The reporting systems have a valuable role in enhancing compliance with treaties in this field for at least three reasons. ing Contracting Parties from failing to ful super

First, the reports submitted by the Contracting Parties provide the primary source of information with regard to compliance with the relevant treaties. Reporting systems thus provide a useful means to check their implementation. Second, information provided by the Contracting Parties may be useful in order to assess the effectiveness of the measures taken by them and/or by a treaty commission. On the basis of scienti

fic data submitted by the Contracting Parties, it may be possible to flexibly

adjust the measures necessary for the protection of the marine environment. Third, the reporting systems provide Contracting Parties with an opportunity for selfexamination of their performance. In general, the effectiveness of reporting systems relies primarily on three elements: (i) due diligence by national authorities to submit reports, (ii) accuracy of data, and (iii) transparency of information. However, there are growing concerns that many States, including both developed and developing countries, fail to ful or report merely super

ficially

fil the reporting obligation,

to the relevant international institutions. With a view to

enhancing diligence by States to submit reports, treaties provide various measures, including: publicising those States that are not reporting, providing

financial

and technical

assistance, imposing penalties for non-reporting, where appropriate, and harmonising reporting systems. In order to improve accuracy of information, several treaties establish mechanisms relating to:

120

Regulation 3(1) of Annex III.

121

Article 20(1)(a).

122

Articles 22 and 23 of the OSPAR Convention.

346 Protection of Community Interests at Sea

fication of contents of reports, fication of data by independent bodies, and

• speci

• collection and veri

• the participation of NGOs in compliance and information review procedures.

In addition to this, some treaties place a clear obligation upon the Contracting Parties to ensure the public availability of information.

123

It seems arguable that increased public

availability of information creates an incentive or a community pressure to comply with a reporting obligation. Publication of information may also contribute to enhance the quality of information by allowing a third party to verify the accuracy of information. It may be said that transparency of information is an important element with a view to strengthening compliance procedures, including reporting systems.

(b) Supervision Through Treaty Commissions Another means of international control involves the supervision through a commission established by a treaty. In the context of the regulation of land-based marine pollution, such a compliance procedure is re

flected in the 1992 OSPAR Convention. Article 10 of this

Convention stipulates that the OSPAR Commission has duties (a) to supervise the implementation of the Convention and (b) generally to review the condition of the maritime area, the effectiveness of the measures being adopted, the priorities and the need for any additional or different measures. To this end, Article 23 provides for the compliance procedure by which:

The Commission shall: (a) on the basis of the periodical reports referred to in Article 22 and any other report submitted by the Contracting Parties, assess their compliance with the Convention and the decisions and recommendations adopted thereunder; (b) when appropriate, decide upon and call for steps to bring about full compliance with the Convention, and decisions adopted thereunder, and promote the implementation of recommendations, including measures to assist a Contracting Party to carry out its obligations.

On the basis of those mechanisms, compliance with the OSPAR Convention, including rules governing land-based marine pollution, is to be supervised and controlled by the OSPAR Commission. Yet it is not suggested that the OSPAR Commission possesses enforcement jurisdiction against Contracting Parties which do not comply with their obligations under the Convention. Article 13 suggests that a Contracting Party which has voted against a decision is not bound by it.

123 124

124

ficant that an international

Despite this limitation, it is signi

The Helsinki Convention (Article 17); the OSPAR Convention (Article 9). R. Lagoni, ‘Monitoring Compliance and Enforcement of Compliance through the OSPAR Commission’, in P. Ehlers, E. Mann-Borgese and R. Wolfrum (eds.), Marine Issues (The Hague, Kluwer, 2002), pp. 161–162.

347

Protection of the Marine Environment body possessing supervisory and control power has appeared in the

field of marine environ-

mental protection.

5.7 Access to Information and Public Participation

Access to information and public participation is crucial to enhance transparency in decision-making concerning the regulation of land-based marine pollution. Some regional treaties in this

field contain an obligation to provide information to the public.

125

By way of

illustration, Article 9 of the OSPAR Convention places an obligation upon the Contracting Parties to ensure that:

[T]heir competent authorities are required to make available the information described in paragraph 2 of this Article to any natural or legal person, in response to any reasonable request, without that person’s having to prove an interest, without unreasonable charges, as soon as possible and at the latest within two months.

Under Article 9(2), ‘ [t]he information referred to in paragraph 1 of this Article is any available information in written, visual, aural or data-base form on the state of the maritime area, on activities or measures adversely affecting or likely to affect it and on activities or measures introduced in accordance with the Convention ’. In this connection, the Arbitral Tribunal, in the 2003 OSPAR Arbitration between Ireland and the United Kingdom, took the view that Article 9 of the OSPAR Convention provides an obligation of result rather than ‘merely to provide access to a domestic regime which is directed at obtaining the required result ’.

126

Nonetheless, access to information is not unrestricted. The OSPAR Convention contains exceptions that allow information to be withheld on the grounds, inter alia, of public security, commercial and industrial con data.

127

fidentiality,

fidentiality

and the con

of personal

In this regard, the Tribunal, in the OSPAR Arbitration, held that Ireland had failed

to demonstrate that the required information concerned information on the state of the marine environment or on an activity that was likely to give an adverse effect on the maritime area.

128

It thus found that Ireland ’ s claim for information did not fall within

Article 9(2) of the OSPAR Convention.

129

More detailed obligations to secure access to

information and public participation are provided in the 1998 Aarhus Convention, which is the main treaty in this

125

field.

130

See, for instance, Article 17(1) of the Helsinki Convention; Article 15(2) of the 1995 Barcelona Convention; Article 6(3) of the Abidjan Protocol. See also Harrison, Saving the Oceans , p. 85.

126

Dispute Concerning Access to Information under Article 9 of the OSPAR Convention (Ireland v United Kingdom) (hereinafter the OSPAR Arbitration), Final Award, 2 July 2003, para. 137.

127 128 130

Article 9(3) of the OSPAR Convention. See also the OSPAR Arbitration Award, para. 170.

Ibid., para. 179.

129

Ibid., para. 185(iv).

Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. Text in: (1999) 38 ILM, p. 517. Entered into force 30 October 2001.

348 Protection of Community Interests at Sea

6 REGULATION OF VESSEL-SOURCE MARINE POLLUTION

6.1 MARPOL Unlike the regulation of land-based marine pollution, vessel-source marine pollution is regulated primarily by global legal instruments. As noted earlier, the key instruments on this subject are MARPOL and the LOSC. Chronologically, MARPOL should be examined

first.

MARPOL seeks to achieve the complete elimination of international pollution of the marine environment by oil and other harmful substances and the minimisation of accidental discharge of such substances.

131

In addition to the text of the 1973 Convention and the

1978 Protocol, MARPOL contains two Protocols and six Annexes. Annexes I and II are mandatory for all Contracting Parties, while the remaining Annexes are optional.

Under

fly the flag of a

Article 3(1) of the 1973 Convention, MARPOL applies to ships entitled to Party to the Convention and to ships not entitled to

132

fly the flag of a Party but which operate

under the authority of a Party. However, MARPOL does not apply to any warship, naval auxiliary or other ship owned or operated by a State and used only on government noncommercial service pursuant to Article 3(3). Under Article 4(1) of the 1973 Convention, any violation of the requirements of the Convention shall be prohibited and sanctions are to be established under the law of the Administration of the ship concerned wherever the violation occurs.

133

While in the ports or

ficate in ficers duly authorised by that Party

offshore terminals under the jurisdiction of a Party, a ship required to hold a certi accordance with MARPOL is subject to inspection by of pursuant to Article 5.

fic

Each Annex to MARPOL contains detailed provisions regulating speci

categories of

vessel-source pollution. These provisions are highly technical and only a brief outline can be given here.

134 135

Annex I, which was revised in 2004, regulates oil pollution from ships.

The revised

Annex sets limits on discharge into the sea of oil or oily mixtures from ships to which the Annex applies.

136

Annex I also obliges oil tankers to comply with the double-hull and

double-bottom requirements.

137

These requirements are important to phase out single-hull

oil tankers. Annex I was amended in 2009, adding a new Chapter 8 with a view to

131 132

Preamble of the 1973 Convention. As at July 2018, 156 States representing 99.42 per cent of the world ’s shipping tonnage were parties to Annexes I and II of MARPOL 73/78. IMO,

133

Status of Conventions, 6 July 2018, p. 111.

Under Article 2(5) of the 1973 Convention, ‘Administration’ means the government of the State under

fly a fl ag of any State, the fixed or floating platforms engaged in

whose authority the ship is operating. With respect to a ship entitled to Administration is the government of that State. Concerning

exploration and exploitation of the sea-bed and subsoil thereof adjacent to the coast, the Administration is the government of the coastal State. 134

Annexes of MARPOL have been frequently amended. Further amendments may be made in the near future. In this case, the regulation numbers might be subject to change. For an outline of each Annex, see Harrison,

135 136

Saving the Oceans, pp. 121–124.

Resolution MEPC.117(52) adopted 15 October 2004. Entered into force 1 January 2007. Regulation 15.

137

Regulations 19 and 20.

349 Protection of the Marine Environment preventing pollution during transfer of oil cargo between oil tankers at sea.

138

In 2010,

Annex I acquired a new Chapter 9 respecting special requirements for the use or carriage of oils in the Antarctic area.

139

Annex II deals with sea pollution by noxious liquid substances in bulk. Annex II was 140

revised in 2004.

fies requirements with regard to the control of

The revised Annex II speci

discharges of residues of noxious liquid substances or ballast water, tank washings or other 141

mixtures containing such substances in some detail.

Noxious liquid substances are

divided into four categories, namely, categories X, Y, Z and other substances. The discharge of the most hazardous noxious substances of category X into the marine environment is prohibited, while the discharge of substances listed in categories Y and Z into the sea is limited. At present, other substances may be discharged in the case of tank cleaning or deballasting operations.

142

±

In the Antarctic area, i.e. the sea area south of latitude 60

south,

any discharge into the sea of noxious liquid substances or mixtures containing such substances is prohibited.

143

Annex III, which was revised in 2006,

144

aims to prevent pollution by harmful substances

carried by sea in packaged form. The revised Annex III contains detailed provisions with regard to packing of a harmful substance, marking and labelling, documentation and stowage. 145

Annex IV, which was revised in 2004, regulates pollution by sewage from ships.

The

revised Annex IV contains detailed regulations with regard to equipment and control of discharge of sewage into the sea. In 2006, a new Regulation 13 was added with a view to introducing port State control over operational requirements. Annex V regulates disposal of garbage from ships.

147

146

Garbage under Annex V means all

kinds of victual, domestic and operational waste excluding fresh The disposal into the sea of all plastics is prohibited. areas is tightened by Regulation 5.

150

149

fish and parts thereof.

148

The disposal of garbage in special

However, Regulation 6(a) allows a ship to dispose of

garbage for the purpose of securing the safety of a ship or saving life at sea. The escape of garbage resulting from damage to a ship or its equipment is also permitted as long as all reasonable precaution has been taken by virtue of Regulation 6(b). The accidental loss of synthetic

fishing nets is not prohibited, provided that all reasonable precautions have been

taken to prevent such loss.

138 139 140 141 144 145 146 147 148 150

151

Resolution MEPC.186(59) adopted 17 July 2009. Entered into force 1 January 2011. Resolution MEPC.189(60) adopted 26 March 2010. Entered into force 1 August 2011. Resolution MEPC.118(52) adopted 15 October 2004. Entered into force 1 January 2007. Regulation 13.

142

Regulation 6.

143

Regulation 13(8).

Resolution MEPC.156(55) adopted 13 October 2006. Entered into force 1 January 2010. Resolution MEPC.115 (51) adopted 1 April 2004. Entered into force 1 August 2005. Regulation 13 entered into force 1 August 2007. Entered into force 31 December 1988. Annex V has been subject to subsequent amendments. Regulation 1(1).

149

Regulation 3(1)(a).

Under Regulation 5(1), such areas are: the Mediterranean Sea area, the Baltic Sea area, the Black Sea area, the Red Sea area, the ‘Gulfs area’, the North Sea area, the Antarctic area and the Wider Caribbean Region, including the Gulf of Mexico and the Caribbean Sea.

151

Regulation 6(c).

350 Protection of Community Interests at Sea

Revised Annex VI, which was adopted in 2008, involves regulations for the prevention of air pollution from ships.152 The revised Annex VI limits ozone-depleting substances, sulphur oxide (SO x) and nitrogen oxide (NOx) emissions from ships. In particular, Regulation 14 sets a limit for sulphur in fuel oil used on board ships of 0.50 per cent m/m (mass by mass) from 1 January 2020. The limitation of sulphur is supposed to have major health and environmental benefits, particularly for populations living close to ports and coasts.153 The revised Annex VI also introduces an Emission Control Area where the emission of NOx as well as SOx and particulate matter is further restricted.154 Furthermore, Regulation 16 prohibits shipboard incineration of certain products. Overall MARPOL continues to develop in response to new needs concerning the regulation of vessel-borne pollution. In this regard, three comments can be made. First, the development of the regulation of vessel-source pollution under MARPOL is essentially characterised by the opposition between environmental interests and shipping and industry interests. On the one hand, stringent regulation of vessel-source pollution will contribute to protect the marine environment. On the other hand, it is not infrequent that the oil and shipping industry oppose new requirements for existing tankers, such as the double-hull requirement. Broadly, it can be said that the relevant provisions of MARPOL are the result of bargaining between environmental interests and shipping and industry interests. Second, the revisions or amendments of the Annexes to MARPOL were often made in response to intense pressure arising from marine environmental disasters. For example, the Exxon Valdez incident in March 1989 prompted States to introduce the double-hull requirement, incorporated in Annex I in 1992. The Erica incident of 1999 further intensifi ed demands for more stringent action for the phasing out of single-hull tankers. Under intense EU pressure, Annex I was amended with a view to accelerating the phase out of single-hull tankers. The Prestige incident of 2002 led to calls for further revision of Annex I. It may be said that serious marine disasters were a catalyst for tighter regulation under MARPOL.155 Third, all Annexes require the Contracting Parties to undertake to ensure relevant reception facilities. However, concerns have been voiced that oil-exporting States have little incentive to bear the costs of providing reception facilities in their ports.156 It has also been pointed out that many developing States do not consider the obligation concerning 152 153 154

155

Resolution MEPC.176(58) adopted 10 October 2008. Revised Annex VI entered into force 1 July 2010. IMO, Frequently Asked Question: the 2020 Global Sulphur Limit, p. 1, available at: www.imo.org/en/ MediaCentre/HotTopics/GHG/Documents/2020%20sulphur%20limit%20FAQ%202019.pdf. Regulations 13 and 14. Regulations 13(6) and 14(3) were amended by Resolution MEPC.190(60) on 26 March 2010. Entry into force 1 August 2011. As a consequence, the Emission Control Area includes the Baltic Sea area, the North Sea, the North American area and any other sea area, including port areas, designated by the IMO. New Appendix VII was also added to Revised Annex VI. Annex VI was further amended in 2011. See section 10.1 of this chapter. A. K.-J. Tan, Vessel-Source Marine Pollution: The Law and Politics of International Regulation (Cambridge University Press, 2006), pp. 139 155; G. Mattson, MARPOL 73/78 and Annex I: An Assessment of its Effectiveness (2006) 9 Journal of International Wildlife Law and Policy, pp. 185 188. Tan, Vessel-Source Marine Pollution, pp. 264 265. –

156

‘

’

–

–

351

Protection of the Marine Environment 157

reception facilities as legally binding.

In the case where a port facility authority fails to

handle discharged hazardous substances properly, serious problems will arise. One can take the

Probo Koala

affair as an example. In 2006, the cargo ship,

Dutch-based oil-trading company, Tra

Probo Koala ,

owned by a

figura, tried to unload toxic waste in Amsterdam for

treatment, but it decided not to do so because of the high price. Thus the

Probo Koala

was

sent to Africa and discharged 500 tons of hazardous waste at a port reception facility in Abidjan, Ivory Coast, at a much lower price. An Ivorian operator, who did not have toxic waste treatment facilities, disposed of the waste in local land

fills.

The toxic fumes were

alleged to have caused 15 deaths and hospitalisation of 69 people, and over 100,000 others sought medical treatment after the incident.

158

This incident seemed to demonstrate that in

the absence of any comparable regulation of discharge of hazardous wastes on land, MARPOL merely shifts discharge of such wastes from sea to land.

6.2 The LOSC Regime (1): Regulation by Flag States Part XII of the LOSC contains the most detailed provisions with regard to the regulation of vessel-source pollution. Article 211(1) places a general obligation upon States to establish international rules and standards to prevent, reduce and control pollution of the marine environment from vessels and promote the adoption of routeing systems designed to minimise the threat of accidents which might cause pollution of the marine environment through the competent international organisation or general diplomatic conference. While the competent international organisation involves the IMO, it may include other international organs. Under the LOSC, vessel-source pollution is regulated by

flag States, coastal

States and port States.

flag State has the primary responsibility to regulate vessel-source marine pollution. This is a corollary of the principle of the exclusive jurisdiction of the flag State. Concerning legislative jurisdiction, Article 211(2) obliges the flag State to adopt laws to regulate pollution The

from their vessels which ‘at least have the same effect as that of generally accepted international rules and standards established through the competent international organization or general diplomatic conference ’ . ‘The competent international organization ’ means the IMO. While there is no clear de

finition

of ‘generally accepted international rules ’ , it can

reasonably be presumed that those rules include the these instruments are widely rati

fied.

159

first two Annexes to MARPOL because

Penalties provided for by the laws and regulations of

flag States shall be adequate in severity to discourage violations wherever they occur.

157

M. S. Karim, ‘Implementation of the MARPOL Convention in Developing Countries’ (2010) 79 pp. 319 –320. See also Tan,

158

UNEP,

Vessel-Source Marine Pollution,

UNEP Yearbook 2010,

p. 28; UN News Service, ‘Toxic Wastes Caused Deaths, Illness in

fined Trafi gura €1 million

for illegally exporting waste to Ivory Coast and concealing the nature of the cargo: www.theguardian.com/world/2010/jul/23/tra 159

Churchill and Lowe,

Law of the Sea,

p. 346.

figura-dutch-fine-waste-export, 23 July 2010. 160

NJIL,

p. 267.

Côte d ’Ivoire-UN Expert’, 16 September 2009. In 2010, a Dutch court

LOSC, Article 217(8).

160

352

Protection of Community Interests at Sea Article 217 provides enforcement jurisdiction of

fl ag

fl ag

States. Under Article 217(1),

States are required to ensure compliance by their vessels with applicable inter-

national rules and standards and with their laws concerning regulation of vesselsource pollution. Flag States are also obliged to provide for the effective enforcement of such laws and regulations, irrespective of where a violation occurs. Article 217(2) places an obligation upon that

their

vessels

are

flag States to take appropriate measures in order to ensure

prohibited

from

sailing,

until

they

can

proceed

to

sea

in

compliance with the requirements of the international rules and standards. In rela-

flag States a duty to ensure that their vessels fi cates required by and issued pursuant to international rules and

tion to this, Article 217(3) imposes on carry on board certi

standards; and that their vessels are periodically inspected in order to verify such certi

fi cates.

If a vessel commits a violation of rules and standards, the

flag State is under obligation to

provide for immediate investigation and where appropriate institute proceedings in respect of the alleged violation, irrespective of where the violation occurred or where the pollution caused by such violation has occurred or has been spotted.

161

At the written request of any

flag States are obliged to investigate any violation alleged to have been committed by fied that sufficient evidence is available to enable proceedings to be brought in respect of the alleged violation, flag States shall without delay institute such State,

their vessels. If satis

proceedings in accordance with their laws. inform

the

requesting

State

and

the

162

Flag States are also required to promptly

competent

international

organisation

of

the

action taken and its outcome. Such information shall be available to all States by virtue of Article 217(7).

6.3 The LOSC Regime (2): Regulation by Coastal States With a view to complementing the

flag State s responsibility over ships, the LOSC allows ’

coastal States to exercise legislative and enforcement jurisdiction to regulate vessel-source pollution. Concerning legislative jurisdiction, Article 211(4) empowers coastal States, in the exercise of their sovereignty within their territorial sea, to adopt laws to regulate vessel-source pollution. Such laws and regulations must not hamper innocent passage of foreign vessels. Article 21(1)(f ) also allows the coastal State to adopt laws and regulations to protect the marine environment from vessels exercising the right of innocent passage through the territorial sea. However, such laws and regulations shall not apply to the design, construction, manning or equipment of foreign ships unless they are giving effect to generally accepted international rules and standards pursuant to Article 21(2). The coastal State is obliged to give due publicity to all such laws and regulations under Article 21(3). Such laws and regulations must be non-discriminatory.

161

LOSC, Article 217(4).

162

LOSC, Article 217(6).

163

163

LOSC, Article 24(1)(b).

353 Protection of the Marine Environment The establishment of the 200-nautical-mile EEZ enlarged the spatial scope of coastal State jurisdiction relating to the regulation of vessel-source pollution. In this connection, Article 211(5) provides that coastal States may in respect of their EEZs adopt laws and regulations for the prevention, reduction and control of pollution from vessels conforming to and giving effect to generally accepted international rules and standards. Further to this, in a ‘particular, clearly de

fined area

’ of their EEZs, Article 211(6) allows coastal States to

adopt additional laws and regulations for the prevention, reduction and control of pollution from vessels implementing such international rules and standards or navigational practices for

special

areas

after

appropriate

consultations

through

the

competent

organisation. These laws and regulations apply to foreign vessels

international

fifteen months after the

submission of the communication to the organisation, provided that the organisation agrees within twelve months after the submission. Yet the power given by Article 211(6) has not been utilised in practice.

164

With regard to the enforcement jurisdiction of coastal States, Article 220(1) holds that when a vessel is voluntarily within a port or at an offshore terminal of a State, that State may institute proceedings in respect of any violation of the laws and regulations of that State concerning vessel-source pollution territorial sea or

the

exclusive

‘ when the violation has occurred within the

economic

zone

of

that

State ’. Article

220(2)

further

stipulates that where there are clear grounds for believing that a vessel navigating in the territorial sea of a State has, during its passage therein, violated laws and regulations of that State relating to vessel-source pollution, that State may undertake physical inspection of the vessel relating to the violation and may institute proceedings, including detention of the vessel. Article

220(3) – (6)

contains

provisions

concerning

a

violation

of

relevant

rules

committed by a foreign vessel in the EEZ of a coastal State. Where there are clear grounds for believing that a vessel navigating in the EEZ or the territorial sea of a State has, in the EEZ, committed a violation of applicable international rules and standards for the regulation of vessel-source pollution, that State may require the vessel to give relevant information pursuant to Article 220(3). Under Article 220(5), the coastal State is allowed to undertake physical inspection of vessels where there are clear grounds for believing that a vessel navigating in the EEZ or the territorial sea of a State has, in the EEZ, committed a violation referred to in Article 220(3) resulting in discharge causing or threatening signi

‘a

substantial

ficant pollution of the marine environment

’ and

the vessel has refused to give information or if the information supplied by the vessel is manifestly at variance with the evident factual situation and if the circumstances of the case justify such inspection. Article 220(6) further provides that where there is clear objective evidence that a vessel navigating in the EEZ or the territorial sea of a State has,

164

in

the

EEZ,

committed

a

violation

referred

to

in

paragraph

3

resulting

R. Churchill, ‘Under-Utilised Coastal State Jurisdiction: Causes and Consequences’, in H. Ringbom (ed.),

Jurisdiction over Ships: Post-UNCLOS Developments in the Law of the Sea p. 295.

(Leiden, Brill/Nijhoff, 2015),

in

354 Protection of Community Interests at Sea ‘ a discharge causing major damage or threat of major damage ’ to the coastline or related

interests of the coastal State, or to any resources of its territorial sea or EEZ, that State may

institute

proceedings,

including

detention

of

the

vessel,

in

accordance

with

its laws. It would follow that the detention of the foreign vessel is allowed only where its violation in the EEZ results in ‘discharge causing major damage or threat of major damage ’. Where the violation by the foreign vessel in the EEZ results in ‘a substantial discharge causing or threatening signi

ficant

pollution of the marine environment ’, the coastal State power is

limited to undertaking physical inspection of the vessel. However, the distinction between ‘ a substantial discharge causing or threatening signi

ficant pollution of the marine environ-

ment’ referred to in Article 220(3) and ‘ a discharge causing major damage or threat of major damage ’ provided in Article 220(6) seems to be obscure. The effect may be that the coastal States are likely to categorise any signi

ficant

discharge under the rubric of ‘ a discharge

causing major damage or threat of major damage ’ with a view to exercising greater enforcement jurisdiction.

165

However, it must be noted that the coastal State enforcement is subject to several safeguards set out in section 7 of Part XII. For instance, the powers of enforcement against foreign vessels may only be exercised by governmental ships and aircraft under Article 224. In addition, States shall not endanger the safety of navigation in accordance with Article 225. Under Article 227, States are under the obligation not to discriminate in form or in fact against vessels of any other State. Furthermore, Article 226 ensures that States shall not delay a foreign vessel longer than is essential for the purposes of the investigation. Whenever

appropriate

procedures

have

been

requirements for bonding or other appropriate

established

financial

whereby

compliance

with

security has been assured, the

coastal State, if bound by such procedures, is required to allow the vessel to proceed pursuant to Article 220(7). Under Article 228, proceedings to impose penalties in respect of any violations of applicable laws or international rules committed by a foreign State are to be suspended where the

flag State imposes penalties in respect of corresponding charges

within six months. But this restriction does not apply where those proceedings relate to a case of major damage to the coastal State or the

flag

State in question has repeatedly

disregarded its obligation to enforce effectively the applicable international rules and standards. Normally the penalties imposed for a violation must be limited to monetary ones by virtue of Article 230.

166

Where measures against vessels are unlawful or exceed

those reasonably required, States are to be liable for damage or loss attributable to them arising from such measures.

165 166

167

Ibid., p. 349. However, the restriction does not apply where the violation was a wilful and serious act of pollution committed in the territorial sea. LOSC, Article 230(2).

167

LOSC, Article 232.

355

Protection of the Marine Environment

6.4 The LOSC Regime (3): Regulation by Port States Under customary international law, a port State has no jurisdiction over activities of a foreign vessel on the high seas. However, the LOSC has introduced a new mode of regulation of vessel-source pollution by port States. Article 218(1) provides:

When a vessel is voluntarily within a port or at an off-shore terminal of a State, that State may undertake investigations and, where the evidence so warrants, institute proceedings in respect of any discharge from that vessel outside the internal waters, territorial sea or exclusive economic zone of that State in violation of applicable international rules and standards established through the competent international organization or general diplomatic conference.

The port State jurisdiction is innovative in the sense that the port State is entitled to take enforcement action against the vessel even where a violation was committed on the high seas or marine spaces under other States ’ jurisdiction, regardless of direct damage. The legal basis of port State jurisdiction rests on the treaty provision, not customary international law. The port State jurisdiction must be distinct from the universal jurisdiction under customary international law. Under Article 218, the port State would assume the role of an organ of the international community in the protection of the marine environment and safety at sea.

168

In this sense, the port State jurisdiction may provide an interesting example with regard to the individual application of the law of ‘ dédoublement fonctionnel ’ presented by Georges Scelle. rest

on

three

169

According to Scelle, the realisation of law in every society must

functions,

namely,

legislative,

judicial

and

enforcement

functions.

As there is no centralised organ to perform the three social functions in international society, however, these functions are to be performed by State organs in the interState order,

order. they

Where are

State

organs

considered

as

perform national

their

functions

organs.

Where

in

the

State

municipal organs

legal

perform

their functions in the international legal order, they are regarded as international organs. Thus, in the view of Scelle, State organs perform a dual role. The dual role is called the law of dédoublement fonctionnel ,

168

170

which has a valuable part to play in the

C. J. Tams, ‘Individual States as Guardians of Community Interests ’, in U. Fastenrath et al. (eds.), From Bilateralism to Community Interest, Essays in Honour of Judge Bruno Simma (Oxford University Press, 2011), p. 398.

169

fi ques de la mer: la jurisdiction de l Etat du port et le navire en

D. Vignes, ‘Le navire et les utilisations paci

’

droit international’, in Société française pour le droit international, Colloque de Toulon: Le Navire en Droit International (Paris, Pedone, 1992), pp. 149–150. 170

With respect to the law of dédoublement fonctionnel, see G. Scelle, ‘Le phénomène juridique du dédoublement fonctionnel ’, in Rechtsfragen der Internationalen Organisation: Festschrift für Hans Wehberg zu seinem Geburtstag (Frankfurt, Vittorio Klostermann, 1956), pp. 324–342; A. Cassese, ‘Remarks on Scelle’s Theory of “Role Splitting ” (dédoublement fonctionnel) in International Law’ (1990) 1 EJIL, pp. 210–231.

356 Protection of Community Interests at Sea protection of community interests in international law, including the law of the sea. However, the enforcement of port State jurisdiction is not free from dif

ficulty

in

practice. First, the power to exercise port State jurisdiction is permissive, not an obligation. The LOSC contains no mechanism to supervise the implementation of port State jurisdiction. Accordingly, it appears questionable whether the port State has good incentives to exercise its jurisdiction effectively. Second, speci

it

would

be

171

very

dif

ficult

if

not

impossible

to

detect

evidence

of

a

fic discharge violation in marine spaces beyond the limits of national jurisdiction.

There

may

annually.

also

be

logistical

problems

for

ports

which

receive

many

ship

visits

172

Third, port State jurisdiction is subject to substantive and procedural restrictions provided in the LOSC. Concerning substantive restrictions, port State jurisdiction deals only with the violation of international rules with regard to vessel-source pollution. Thus, any breach of international rules relating to construction, design, equipment, crewing and other vessel standards falls outside the scope of Article 218. Further to this, the port State can enforce only ‘international rules and standards established through the competent international organization or general diplomatic conference’ . In practice, these rules and standards are considered to be established by MARPOL.

173

Accordingly,

it can be said that the port State is not free to create and enforce its own discharge rules and standards. With regard to procedural restrictions, Article 218(2) prohibits the port State from instituting proceedings where a discharge violation occurred in the internal waters, territorial sea or EEZ of another State unless that State, or the

flag State, or a State damaged or

threatened by the discharge violation so requests, or where the violation has caused or is likely to cause pollution in the internal waters, territorial sea or EEZ of the port State. Port State jurisdiction is further quali

fied by Article 226. Article 226(1)(a)

requires that States

shall not delay a foreign vessel longer than is essential for the purposes of the investigations. Under the same provision, any physical inspection of a foreign vessel shall be limited to documentary examination. Further physical inspection of the vessel may be undertaken only when: • there are clear grounds for believing that the documents do not correspond substantially

with the condition of the vessel,

171

In fact, Ho-Sam Bang indicated that there have been no court cases where port States have prosecuted foreign vessels for unlawful discharges in accordance with Article 218 of the LOSC. Ho-Sam Bang, ‘Port State Jurisdiction and Article 218 of the UN Convention on the Law of the Sea’ (2009) 40

Maritime Law and Commerce , 172

T. Keselj, ‘Port State Jurisdiction in Respect of Pollution from Ships: The 1982 United Nations Convention on the Law of the Sea and the Memoranda of Understanding’ (1999) 30

Marine Pollution, 173

Journal of

p. 312.

ODIL ,

p. 138; Tan,

Vessel-Source

p. 220.

T. L. McDorman, ‘Port State Enforcement: A Comment on Article 218 of the 1982 Law of the Sea Convention’ (1997) 28

Journal of Maritime Law and Commerce,

p. 316.

357

Protection of the Marine Environment

ficient to confirm or verify a suspected violation, or ficates and records.

• the documents are insuf

• the vessel is not carrying valid certi

If the investigation indicates a violation of applicable laws or international rules and standards for the protection of the marine environment, release is to be made promptly, subject to reasonable procedures such as bonding or other appropriate

financial

security

pursuant to Article 226(1)(b). Under

Article

218(4),

the

records

of

the

investigation

carried

out

State pursuant to this Article are to be transmitted upon request to the

by

flag

a

port

State or

to the coastal State. Any proceedings instituted by the port State on the basis of such the

an

investigation

coastal

State

may,

when

subject

the

to

section

violation

has

7,

be

occurred

suspended within

at

its

the

request

internal

of

waters,

territorial sea or EEZ. The suspension of the proceedings leads to two consequences. First, the port State must transmit the evidence and records of the case, together with any bond or other

financial security to the coastal State. Second, such transmittal is to flag

preclude the continuation of proceedings in the port State. Further to this, the

State may force a suspension of the proceedings being undertaken by the port State for an

alleged

discharge

violation

where

the

flag

State

takes

proceedings

to

impose

penalties in respect of corresponding charges within six months pursuant to Article 228(1).

Thus

preserved.

it

may

be

said

that

the

predominance

of

flag

State

jurisdiction

is

174

6.5 Port State Control

One of the essential limitations of the regulation of vessel-borne pollution by individual States involves the lack of coordination. In response, there is a need to institutionalise compliance mechanisms for such regulation. In this respect, it is important to note that many

IMO

treaties

respecting

the

regulation

of

marine

pollution,

marine

safety

and

seafarers working conditions have introduced port State control. This is a mechanism for verifying whether a foreign vessel itself and its documentation comply with international rules and standards relating to the safety of ships, living and working conditions on board ships and protection of the marine environment set out by relevant treaties. Unlike port State jurisdiction under Article 218 of the LOSC, port State control does not prosecute the vessel for an alleged breach of relevant international rules and standards. It is limited to taking an administrative measure of veri

fication,

including detention of a vessel. In this

respect, port State control must be distinct from port State jurisdiction under Article 218 of 175

the LOSC.

174 175

D. König, ‘Article 218 ’, in Prölss,

Ibid

A Commentary

, p. 1496.

., p. 320; Ho-Sam Bang, ‘Is Port State Control an Effective Means to Combat Vessel-Source Pollution?

An Empirical Survey of the Practical Exercise by Port States of Their Powers of Control’ (2008) 23 p. 717.

IJMCL

,

358

Protection of Community Interests at Sea TABLE 8.4 PORT STATE CONTROL MOUS

Year

Title of MOU

1982

Paris MOU on Port State Control (hereinafter the Paris MOU)

1992

Viña del Mar (or Latin-American Agreement)

1993

Tokyo MOU on Port State Control (the Asia-Paci

1996

Caribbean MOU

1997

Mediterranean MOU

1998

Indian Ocean MOU

1999

Abuja (the West and Central African Region) MOU

2000

Black Sea MOU

2004

Riyadh (the Arab States of the Gulf ) MOU

Many global treaties in the

176

fic region)

field of pollution regulation and marine safety provide port

State control. Examples include: the 1974 International Convention for the SOLAS, MARPOL,

178

chant Ships,

177

the 1976 ILO Convention No. 147 concerning Minimum Standards in Mer-

179

180

the 1966 International Convention on Load Lines,

the 1978 International

fication and Watchkeeping for Seafarers and In order to enhance the efficiency of port State 181

Convention on Standards of Training, Certi the 2006 Maritime Labour Convention.

182

control set out by these treaties, it is desirable to coordinate the action between port States. The concerted action will also be useful to eliminate so-called ‘ port shopping’ and to reduce the burden of repetitive inspections of foreign ships. Thus port States have formulated regional institutions effectuating port State control through MOUs.

183

To date, nine MOUs

on regional port State control have been established (see Table 8.4). In addition, on 19 June 1995, EC Council Directive 95/21/EC on Port State Control was adopted.

184

Port State control enables States Parties to MOUs to carry out inspections in order to verify compliance with relevant treaties concerning safety at sea and the regulation of vessel-source pollution which are legally binding on them in a uniform manner. In so

176

The Paris MOU has been amended several times since 1982. On 11 May 2010, the 32nd amendment was adopted and entered into force 1 January 2011.

177 178

Annex Chapter 1, Regulation 19. 1184

UNTS, p. 278. Entered into force 25 May 1980.

Regulation 11 of Annex I, Regulation 16(9) of Annex II, Regulation 8 of Annex III, Regulation 8 of Annex V and Regulation 10 of Annex VI.

179 180 181 182 183

Article 4. Entered into force 28 November 1981. The text of the Convention is available at: www.ilo.org/. Article 21. 640

UNTS, p. 133. Entered into force 21 July 1968. UNTS, p. 2. Entered into force 28 April 1984.

Article X and Regulation I/4. 1361

Regulation 5.2. Not entered into force. The text of the Convention is available at: www.ilo.org/. Whatever the need for caution, normally an MOU is considered as an instrument which is not legally binding. A. Aust,

Modern Treaty Law and Practice (Cambridge University Press, 2007), p. 32. In this regard,

it is to be noted that the Paris MOU used a less mandatory term, namely ‘will ’. 184

For an analysis of this Directive, along with the text, see E. J. Molenaar, ‘The EC Directive on Port State Control in Context: The European Union ’ (1996) 11 Directive 2001/106/EC on 19 December 2001.

IJMCL, pp. 241–288. This Directive was amended by

359

Protection of the Marine Environment doing, port State control contributes to protect community interests. It may be argued that port State control MOUs can be considered as an institutional application of the law of

dédoublement fonctionnel . On the other hand, port State control MOUs encounter several challenges, including: (i) uneven performance of inspection rate between States party to the MOUs, (ii) uneven performance of regional regimes of MOUs, (iii) weakness of mechanisms for reviewing port State inspection by a third organ, (iv) the difference of the status of rati

fications of relevant

instruments between Member States to MOUs, and (v) the variation of ship targeting systems.

185

ficiency

In order to enhance the ef

of port State control, there is a need to

increase coordination and cooperation between regional MOUs.

6.6 Intervention by Coastal States in the Case of Pollution Casualties

The next issue that needs to be addressed involves relevant measures

after pollution or the

threat of pollution is caused by vessels. There is little doubt that coastal States are entitled to exercise jurisdiction to prevent and control marine pollution in marine spaces under their territorial sovereignty. However, a question arises as to whether these States can exercise jurisdiction on this matter in marine spaces beyond their territorial sovereignty, in particular on the high seas. As noted earlier, this question was vividly raised in the context of the 1967

Torrey Canyon

incident. After exhausting all other possibilities, the British govern-

ment decided to bomb the wreck, although on the high seas. While neither the owner nor Liberia protested against this action,

186

doubts were raised with regard to the legality of the

British government’ s action. In response to this question, the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (hereinafter the High Seas Intervention Convention) was concluded under the auspices of the IMO in 1969.

187

Article I(1) of this

Convention explicitly allows the Parties to:

take such measures on the high seas as may be necessary to prevent, mitigate or eliminate grave and imminent danger to their coastline or related interests from pollution or threat of pollution of the sea by oil, following upon a maritime casualty or acts related to such a casualty, which may reasonably be expected to result in major harmful consequences.

185

Further, see Y. Tanaka, ‘Regulation of Greenhouse Gas Emissions from International Shipping and Jurisdiction of States’ (2016) 25

186

RECIEL, pp. 342–343.

The owners and time charterers agreed to pay the sum of £3 million in full and

final settlement of the claims

of the governments of the United Kingdom and France, between whom this sum was to be shared equally. The owners also agreed to make available sums up to £25,000 for the purpose of compensating individual claimants in both States. If the cost of settling claims exceeded this sum, the two governments agreed to indemnify the owners against any excess in their respective countries. ‘Remarks by U.K. Attorney General

ILM, pp. 633–635. UNTS, p. 212. Entered into force 6 May 1975.

on “Torrey Canyon” Settlement’ (1970) 9 187

970

360 Protection of Community Interests at Sea However, no measures shall be taken against any warship or other ship owned or operated by a State under Article I(2). ‘Maritime casualty’ as referred to in this provision means ‘ a collision of ships, stranding or other incident of navigation, or other occurrence on board a ship or external to it resulting in material damage or imminent threat of material damage to a ship or cargo ’.

188

It would follow that the coastal State cannot exercise the right of

intervention in the case of operational pollution or dumping at sea. Articles III and V specify the conditions to take measures necessary to prevent pollution or threat of pollution of the sea by oil. It is notable that ‘before taking any measures’ , a coastal State is required to proceed to consultations with other States affected by the maritime casualty, particularly with the

flag

State or States pursuant to Article III(a). In

the cases of extreme urgency requiring measures to be taken immediately, however, the

fication

coastal State may take measures without prior noti

or consultation by virtue of

Article III(d). Measures taken by the coastal State in accordance with Article I shall be proportionate to the damage actual or threatened to it.

189

Such measures must not go

beyond what is reasonably necessary to achieve the end mentioned in Article I and shall cease as soon as the end has been achieved. These measures shall not unnecessarily interfere with the rights and interests of the physical or corporate, concerned.

flag

State, third States and of any persons,

190

The scope of the 1969 High Seas Intervention Convention was further extended by the 1973 Protocol.

191

While the 1969 Convention applies only to intervention in the case of

pollution by oil, the Protocol extended the scope of a coastal State’ s intervention to casualties caused by substances other than oil.

192

‘ Substances other than oil’ means those

substances enumerated in a list which was established by an appropriate body designated by the IMO and annexed to the Protocol and those other substances which are liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea.

193

Under the LOSC, the coastal State rights of intervention are indirectly provided by Article 221. Paragraph 1 of this provision stipulates:

Nothing in this Part shall prejudice the right of States, pursuant to international law, both customary and conventional, to take and enforce measures beyond the territorial sea proportionate to the actual or threatened damage to protect their coastline or related interests, including

fi

shing, from pollution or threat of pollution following upon a maritime casualty or

acts relating to such a casualty, which may reasonably be expected to result in major harmful consequences.

188 191

194

Ibid., Article II(1).

189

Ibid., Article V(1).

190

Ibid., Article V(2).

Protocol Relating to Intervention on the High Seas in Cases of Pollution by Substances Other than Oil. 1313

UNTS , p. 4. Entered into force 30 March 1983. 192 194

Article I(1).

193

Article I(2).

This provision does not apply to any warship, naval auxiliary or other governmental vessels used for noncommercial service pursuant to Article 236 of the LOSC.

361

Protection of the Marine Environment It is to be noted that intervention under this provision is assumed to take place where there is ‘ actual or threatened damage’ which may ‘reasonably be expected to result in major harmful consequences ’, while the 1969 Intervention Convention and its Protocol set out a high threshold referring to ‘ grave and imminent danger’ of damage to the coastline as a condition for intervention.

195

To this extent, a condition to exercise the right of interven196

tion seems to be mitigated under the LOSC.

Article 221(2) makes clear that ‘marine

casualty ’ means 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 ’. Accordingly, ‘ marine casualty’ under Article 221 does not include a pollution incident resulting from dumping or operational pollution.

6.7 Pollution Emergencies at Sea

In the event of maritime disasters, a question arises as to how it is possible to respond to pollution emergencies. The LOSC speci

fies three obligations on this matter.

First, when a State becomes aware of cases in which the marine environment is in imminent danger of being damaged or has been damaged by pollution, Article 198 obliges the State to immediately notify other States it deems likely to be affected by such damage, as well as the competent international organisations.

197

The obligation to notify imminent

damage is supplemented by Article 8 of MARPOL 73/78 and its Protocol I. A similar obligation to report any marine pollution incident is also enshrined in regional treaties respecting pollution emergencies at sea.

198

Considering that coastal States can only take

effective measures if information of impending disasters has been submitted to them in a timely manner, prompt noti

fication

is particularly important in response to pollution

emergencies. Second, Article 199 requires States in the area affected by pollution to cooperate, to the extent possible, in eliminating the effects of pollution and preventing or minimising the damage. To this end, States are obliged to jointly develop and promote contingency plans for responding to pollution incidents in the marine environment. Third, where a pollution emergency occurred within the jurisdiction or control of a State, that State is obliged to take all measures necessary to ensure that that pollution does not

195 196

Article I(1) of the 1969 High Seas Intervention Convention; Article I(1) of the 1973 Protocol. Following the

Amoco Cadiz

disaster, some States, notably France, suggested that the threshold of the

1969 Convention was too restrictive and intervention should be permitted at an early stage. Thus the wording of Article 211 was modi danger ’. Birnie et al., 197 198

fied during negotiations to omit any reference to

International Law and Environment

‘grave and imminent

, p. 427.

See also Article 211(7). Examples include: the 1982 Protocol concerning Regional Cooperation in Combating Pollution by Oil and Other Harmful Substances in Cases of Emergency (Article 7); the 1985 Protocol Concerning Cooperation in Combating Marine Pollution in Cases of Emergency in the Eastern African Region (Article 5); the 2002 Protocol Concerning Cooperation in Preventing Pollution from Ships and, in Cases of Emergency, Combating Pollution of the Mediterranean Sea (Articles 9 and 10); the 1992 Convention on the Protection of the Marine Environment of the Baltic Sea Area (Annex VII); the 2006 Protocol on Hazardous and Noxious Substances Pollution, Preparedness, Response and Cooperation in the Paci

fi c Region (Article 5).

362 Protection of Community Interests at Sea spread beyond the areas where they exercise sovereign rights in accordance with Article 194(2).

fied by the 1990 OPRC. This Convention aims

These obligations under the LOSC are ampli

to provide a global framework for international cooperation in response to oil pollution incidents. Article 3 obliges each Party to require that ships entitled to

fly its flag have on

board a shipboard oil pollution emergency plan in accordance with provisions adopted by the IMO for this purpose. Article 4(1) places a clear obligation upon each Party to require masters or other persons having charge of ships

flying its flag to report without delay any

event on their ship involving a discharge or probable discharge of oil to the nearest coastal State. Whenever a Party receives a report referred to in Article 4 or pollution information provided by other sources, it shall assess the event, the nature, extent and possible consequences of the oil pollution incident. Next, the Party is required, without delay, to inform all States whose interests are affected or likely to be affected by such oil pollution incident together with details of its assessments and any action it has taken under Article 5(1). Article 6(1) further imposes on each Party the obligation to establish a national system for responding promptly and effectively to oil pollution incidents. When the severity of the incident so justi

fies, Parties agree to cooperate

and provide advisory services, technical support and equipment for the purpose of responding to an oil pollution incident upon the request of any Party affected or likely to be affected in accordance with Article 7(1). In 2000, the Protocol on Preparedness, Response and Co-operation to Pollution Incidents by Hazardous and Noxious Substances was adopted by States who were party to the OPRC (hereinafter the OPRC-HNS Protocol).

199

Like the OPRC, the OPRC-HNS Protocol aims to

establish a global framework for international cooperation in response to pollution incidents by hazardous and noxious substances other than oil. Under Article 2(2), ‘hazardous and noxious substances’ means ‘ any substance other than oil which, if introduced into the marine environment is likely to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea ’. Under the OPRC-HNS Protocol, each Party is obliged to apply rules similar to those in the OPRC to these substances. In relation to pollution emergencies at sea, some mention should be made of salvage because it also involves control of such emergencies.

200

Under Article 1 of the 1989 Inter-

national Convention on Salvage (hereinafter the Salvage Convention),

201

salvage operation

means ‘ any act or activity undertaken to assist a vessel or any other property in danger in navigable waters or in any other waters whatsoever ’. Traditionally salvage is based on the

199

Entered into force 14 June 2007. For the text of the Protocol, see IMO, OPRC-HNS Protocol: Protocol on Preparedness, Response and Co-operation to Pollution Incidents by Hazardous and Noxious Substances, 2000 (London, IMO, 2002).

200

While legal literature is not in agreement on the legal nature of salvage law, the better view may be that the law is more a part of maritime law applicable to individuals than to States. R. Garabello, ‘Salvage’, in Max Planck Encyclopedia, para. 10. A detailed analysis of salvage law is beyond the scope of this chapter.

201

(1990) 14 Law of the Sea Bulletin, p. 77. Entered into force 14 July 1996.

363

Protection of the Marine Environment ‘ no cure no pay ’ principle. According to this principle, a salvor who failed to save the ship or

the cargo received no reward. The ‘no cure no pay’ principle was enshrined in the 1910 Convention for the Uni at Sea,

202

fication of Certain Rules of Law respecting Assistance and Salvage

and was regarded as customary maritime law. In light of growing environmental

awareness, however, it became apparent that salvage law on the basis of the ‘no cure no pay ’ principle cannot adequately respond to large-scale pollution emergencies at sea for at least two reasons. First, this traditional principle does not take environmental protection into account. It provides salvors with no reward for work carried out preventing marine pollution by oil or other hazardous substances.

203

As a consequence, salvors would have little incentive to

provide salvage services where there is no or little prospect of saving the endangered property, even though major salvage operations are needed with a view to preventing environmental disaster.

204

Second, the traditional principle presupposes that there are only two parties to the salvage service involved, namely, the salvor and the salved (ship, cargo and freight) and their insurers. Due to the increasing transportation of hazardous cargoes by sea and growth in the size of vessels, however, the protection of the environmental interests of the coastal State is currently stressed in pollution emergencies at sea. The

Amoco Cadiz

205

disaster of 1978 triggered a call for re-evaluation of existing salvage

law, which resulted in the adoption of the 1989 Salvage Convention. The 1989 Salvage Convention seeks to remedy the limits of traditional salvage law. Article 13 of the Convention thus introduced ‘ the skill and efforts of the salvors in preventing or minimising damage to the environment’ as one of the criteria for

fixing the reward. Furthermore, Article 14 of

the Convention introduced special compensation in order to enhance the incentive for the salvor. In accordance with this provision, salvors are entitled to receive special compensation for salvage operations which have prevented or minimised damage to the marine environment. In addition to this, Article 8 obliges the salvor and the owner and master of the vessel or the owner of other property in danger to exercise due care to prevent or minimise damage to the environment.

6.8 Liability for Oil Pollution Damage

Marine pollution incidents raise issues with regard to liability for pollution damage. In this regard, Article 235(1) of the LOSC provides that States are responsible for the ful

filment of

their international obligations concerning the protection and preservation of the marine environment. States are obliged to ensure that recourse is available in accordance with their

202

Article 2 of the 1910 Convention. The Convention entered into force 1 March 1913. The text of the Convention is available at: www.admiraltylawguide.com/conven/salvage1910.html.

203 204 205

Birnie et al.,

International Law and Environment

, p. 429.

C. Redgwell, ‘The Greening of Salvage Law’ (1990)

Ibid Commerce

Marine Policy

, pp. 142 –143.

., p. 144; E. Gold, ‘Marine Salvage: Towards a New Regime’ (1989) 20 , p. 489.

Journal of Maritime Law and

364 Protection of Community Interests at Sea 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 pursuant to Article 235(2). With the objective of assuring prompt and adequate compensation in respect of all damage caused by pollution of the marine environment, Article 235(3) obliges States to cooperate in the implementation of existing international law and the further development of international law relating to liability in this

field.

Liability treaties can be divided into two categories: treaties concerning liability for oil pollution damage and those relating to liability for other pollution damage. Legal frameworks of civil liability for pollution are complex and only an outline can be provided here. This section will address civil liability for oil pollution damage. Broadly, the development of 206

liability and compensation regimes for oil pollution damage can be divided into two stages.

(a) The First Stage (‘Old’ Regime) The

first form of compensation regime was established by the 1969 International Conven-

tion on Civil Liability for Oil Pollution Damage (the 1969 Civil Liability Convention)

207

and

the 1971 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (the 1971 Fund Convention).

208

The civil liability regime established by the 1969 Civil Liability Convention and the 1971 Fund Convention was based on the two-tiered system, namely, strict liability of the shipowner and the Fund

financed by oil-importing persons. Under this system, compensation

costs were shared by the shipowner and oil importers. Here one can detect a prototype of civil liability regime for marine pollution. Later, it became apparent that the limits of liability under the 1969 Civil Liability Convention were too low to provide adequate compensation. In fact, due to the gravity of the damage, the

Amoco Cadiz

accident of 1978 highlighted the need

to reconsider compensation ceilings for oil spills. Thus, in 1984, two Protocols were adopted in order to amend the Civil Liability and Fund Conventions. While the two Protocols set increased limits of liability, neither Protocol came into force because of the reluctance of the United States, a major oil importer, to accept the Protocol. In any case both the 1969 Civil Liability Convention and the 1971 Fund Convention ceased to be in force.

(b) The Second Stage (‘ New’ Regime) The second and newer form of regime for civil liability and compensation was created by two Protocols adopted in 1992.

206

209

They created new conventions known as the 1992 Civil

For an overview of the compensation regime for oil pollution damage, see International Oil Pollution Compensation Funds, ‘The International Regime for Compensation for Oil Pollution Damage: Explanatory Note ’ (hereinafter ‘Explanatory Note ’), July 2018, available at: www.iopcfunds.org/

207

973

UNTS

fileadmin/IOPC_Upload/Downloads/English/explanatory_note.pdf.

, p. 3. Entered into force 19 June 1975. The 1969 Civil Liability Convention was replaced by the

1992 Protocol. 208

1953

UNTS

, p. 373. Entered into force 16 October 1978. The 1971 Fund Convention was terminated on

24 May 2002. 209

Protocol of 1992 to Amend the International Convention on Civil Liability for Oil Pollution Damage 1969, with Annex and Final Act. 1956

UNTS

, p. 285. Protocol of 1992 to Amend the International Convention on

365 Protection of the Marine Environment Liability Convention and the 1992 Fund Convention.

210

Basic elements of the 1992 Civil

Liability Convention can be summarised as follows. First, concerning the conventional scope, the 1992 Civil Liability Convention applies exclusively to pollution damage caused in the territory, including the territorial sea, and in the EEZ or equivalent area of a Contracting State.

211

It would follow that pollution damage

on the high seas is excluded from the scope of the Convention. Where an incident has caused pollution damage in these marine spaces of one or more Contracting States, actions for compensation may only be brought in the courts of any such Contracting State or States in accordance with Article IX(1). Second, ‘pollution damage’ comprises loss or damage caused by contamination resulting from the escape or discharge of oil from the ship and the costs of preventive measures and further loss or damage caused by preventive measures. Notably, compensation for impairment of the environment other than loss of pro

fit from such impairment shall be recover-

able. However, it is limited to ‘costs of reasonable measures of reinstatement actually 212

undertaken or to be undertaken’ .

Third, the 1992 Civil Liability Convention provides strict liability for shipowners.

213

In

this regard, Article III(1) makes clear that except as provided in paragraphs 2 and 3 of this Article, the owner of a ship at the time of an incident shall be liable for any pollution 214

damage caused by the ship as a result of the incident.

Fourth, under Article VII, the owner of a ship registered in a Contracting State and carrying more than 2,000 tons of oil in bulk as cargo shall be required to maintain insurance or other

financial security, in the sums fixed by applying the limits of liability

prescribed in Article V(1) to cover their liability for pollution damage under the Convention. This is a system of compulsory liability insurance.

the Establishment of an International Fund for Compensation for Oil Pollution Damage. 1953 UNTS, p. 330. The two Protocols entered into force 30 May 1996. 210

The texts of the 1992 Civil Liability Convention and the 1992 Fund Convention are reproduced in International Oil Pollution Compensation Funds, Liability and Compensation for Oil Pollution Damage: Texts of the 1992 Civil Liability Convention, the Fund Convention and the Supplementary Fund Protocol, 2011 Edition. As at July 2018, 137 States had become Parties to the 1992 Civil Liability Convention and 115 States had become Parties to the 1992 Fund Convention. IMO, Status of Treaties, 6 July 2018, pp. 267 and 297.

211 212

Article II. Article I(6). Concerning the concept of environmental damage, see Birnie et al., International Law and the Environment, pp. 437– 438.

213

‘Owner ’ means the person or persons registered as the owner of the ship or, in the absence of registration,

the person or persons owning the ship. However, in the case of a ship owned by a State and operated by a company which in that State is registered as the ship’s operator, ‘owner’ shall mean such company (Article I(3)). 214

These exceptions provided in Article III(2) are where damage: (a) resulted from an act of war or an inevitable natural phenomenon, (b) was wholly caused by an act or omission done with intent to cause damage by a third party, or (c) was wholly caused by the negligence or other wrongful act of any government or other authority responsible for the maintenance of lights or other navigational aids in the exercise of that function.

366 Protection of Community Interests at Sea Fifth,

the

compensation

limits

were

those

originally

agreed

in

2000 amendments raised the limits by some 50.37 per cent as follows:

1984.

Later,

the

215

• For a ship not exceeding 5,000 gross tonnage, liability is limited to 4.51 million Special

Drawing Rights (SDR) as de

fined by the International Monetary Fund.

• For a ship 5,000 to 140,000 gross tonnage, liability is limited to 4.51 million SDR plus

631 SDR for each additional gross ton over 5,000. • For a ship over 140,000 gross tonnage, liability is limited to 89.77 million SDR.

216

The 1992 Fund Convention established the International Oil Pollution Compensation Fund 1992 (IOPC or 1992 Fund). To become Parties to the 1992 Fund Convention, States must also become Contracting Parties to the 1992 Civil Liability Convention.

217

Under Article 4 of the

Convention, the 1992 Fund is to pay compensation to any person suffering pollution damage if such person has been unable to obtain full and adequate compensation for the damage under the terms of the 1992 Civil Liability Convention because of three reasons:

• no liability for damage arises under the 1992 Civil Liability Convention, • the shipowner liable for the damage under the 1992 Civil Liability Convention is

financially incapable of meeting their obligation in full, and

• the damage exceeds the shipowner’ s liability under the 1992 Civil Liability Convention as

limited pursuant to Article V(1).

However, the 1992 Fund shall pay no compensation if the pollution damage resulted from an act of war or was caused by oil which has escaped from a warship or other governmental ship used for non-commercial service, or the claimant cannot prove that the damage resulted from an incident involving one or more ships by virtue of Article 4(2). Like the 1992 Civil Liability 218

Convention, the 1992 Fund Convention does not apply to pollution damage on the high seas.

Annual contributions to the 1992 Fund are to be made in respect of each Contracting State by any person who has received in total quantities exceeding 150,000 tons of oil by 219

sea in a calendar year.

The aggregate amount of compensation payable by the 1992 Fund

for any one incident was limited to 135 million SDR, including the sum actually paid by the shipowner or their insurer under the 1992 Civil Liability Convention. However, the amendments in 2000 raised the maximum amount of compensation payable from the 1992 Fund for a single incident, including the limit established under the 2000 Civil Liability Convention amendments, to 203 million SDR.

215

220

Amendments of the Limitation Amounts in the Protocol of 1992 to Amend the International Convention on Civil Liability for Oil Pollution Damage, 1969. Adopted on 18 October 2000. Entered into force 1 November 2003 (under tacit acceptance).

216

See www.imo.org/en/About/Conventions/ListOfConventions/Pages/International-Convention-on-CivilLiability-for-Oil-Pollution-Damage-(CLC).aspx. The SDR is an international reserve asset, created by the International Monetary Fund in 1969. The daily conversion rates for SDRs can be found at: www.imf.org/external/np/

217 220

fin/data/rms_sdrv.aspx.

Article 28(4) of the 1992 Fund Convention.

218

Ibid., Article 3.

219

Ibid., Article 10.

Amendments of the Limits of Compensation in the Protocol of 1992 to Amend the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971. Entered into force 1 November 2003.

367 Protection of the Marine Environment

On 3 March 2005, a third tier of compensation was established by the 2003 Protocol establishing an International Oil Pollution Compensation Supplementary Fund.221 The 2003 Protocol seeks to supplement the compensation available under the 1992 Civil Liability and Fund Conventions. The Protocol is optional and open only to Contracting States to the 1992 Fund Convention by virtue of Article 19(3). The 2003 Protocol established the International Oil Pollution Compensation Supplementary Fund 2003 (hereinafter the Supplementary Fund) pursuant to Article 2. Under Article 4(2)(a), the aggregate amount of compensation payable by the Supplementary Fund for an incident is to be limited to 750 million SDR including the amount of compensation paid under the existing 1992 Civil Liability and Fund Conventions. In summary, first, compensation for oil pollution damage is to be paid by a shipowner under the 1992 Civil Liability Convention. Second, the 1992 Fund provides compensation for pollution damage to the extent that the protection afforded by the 1992 Civil Liability Convention is inadequate. Third, the Supplementary Fund provides compensation where the maximum compensation afforded by the 1992 Fund Convention is insufficient to meet compensation needs in certain circumstances. 222 In addition to this, the International Convention on Civil Liability for Bunker Oil Pollution Damage was concluded in 2001 (hereinafter Bunker Oil Convention).223 This Convention seeks to ensure the payment of adequate, prompt and effective compensation for damage caused by pollution resulting from the escape or discharge of bunker oil from ships.224 Like the 1992 Civil Liability Convention, the 2001 Bunker Oil Convention limits environmental damage to costs of reasonable measures of reinstatement actually undertaken or to be undertaken. 225 Article 3 of the Convention provides strict liability of the shipowner. Furthermore, Article 7(1) obliges the shipowner having a gross tonnage greater than 1000 registered in a State Party to maintain compulsory insurance or other financial security to cover the liability of the registered owner for pollution damage in an amount equal to the limit provided in Article 6. ‘

’

‘

221

’

Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992. Entered into force 3 March 2005. The text of the Protocol is reproduced in As at July 2018, thirty-two States had become Parties to the 2003 Protocol. IMO, , 6 July 2018, p. 306. In addition, the International Group of P&I Clubs, which is a group of thirteen mutual insurers that between them provide liability insurance for about 98 per cent of the world tanker tonnage, introduced, on a voluntary basis, a compensation package constituting of two agreements: the 2006 Small Tanker Oil Pollution Indemnifi cation Agreement (STOPIA) and the 2006 Tanker Oil Pollution Indemnifi cation Agreement (TOPIA). These agreements were amended in 2016 and the new versions became effective on 20 February 2017. See Explanatory Note , p. 7. Cm 6693. Entered into force 21 November 2008. As at July 2018, eighty-eight States had become Parties to the Bunker Oil Convention. IMO, , 6 July 2018, p. 497. Preamble. Under Article 1(5), bunker oil means any hydrocarbon mineral oil, including lubricating oil, used or intended to be used for the operation or propulsion of the ship, and any residues of such oil . Article 1(9)(a). Liability and Compensation for Oil Pollution Damage.

222

223 224 225

Status of Treaties

‘

’

Status of Treaties

‘

’

‘

’

368

Protection of Community Interests at Sea

6.9 Liability for Other Pollution Damage

(a) The 1996 HNS Convention Vessel-source marine pollution may be caused by substances other than oil. In this regard, in 1996, the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (the HNS Convention) was adopted by the IMO.

226

This Convention seeks to ensure adequate, prompt

and effective compensation for damage caused by incidents in connection with the carriage by sea of HNS, such as chemicals.

227

Article 1(6) of the HNS Convention de

fines

‘damage ’ as

including:

• loss of life or personal injury, • loss of or damage to property outside the ship, • loss or damage by contamination of the environment caused by the hazardous and

noxious substances, and • the costs of preventive measures and further loss or damage caused by preventive

measures.

fined in the 1969 Civil

The HNS Convention does not apply to oil pollution damage as de

Liability Convention, as amended, or loss or damage caused by radioactive materials. Nonetheless, oil carried in bulk listed in Appendix I of Annex I to MARPOL are included. In accordance with Article 3, the HNS Convention applies exclusively • to any damage caused in the territory, including the territorial sea of a State Party, • to damage by contamination of the environment caused in the EEZ of a State Party, • to damage, other than damage by contamination of the environment, caused outside the

territory, including the territorial sea, of any State, • to preventive measures, wherever taken.

Article 3 applies to damage anywhere at sea, including the high seas, if it is not ‘damage by contamination

of

the

environment ’.

However,

reinstatement of the high seas is ruled out.

it

would

appear

that

environmental

228

As with the regime of civil liability for oil pollution, the HNS Convention is based on a two-tier system, namely, shipowner liability and the HNS Fund, The

first

financed by cargo interests.

tier of compensation will be paid by the shipowner. In this regard, the HNS

Convention provides strict liability for the shipowner and a system of compulsory insurance.

229

Under Article 9, the shipowner is entitled to limit its liability to an amount between

10 million and 100 million SDR, depending on the gross tonnage of the ship. In those cases where the insurance does not cover an incident, or is insuf

ficient to satisfy the claim, the

second tier of the compensation system, the International Hazardous and Noxious Substances Fund (HNS Fund), comes into play. The Fund is to be

226 227 228

(1996) 35

ILM, p. 1415.

Hazardous and noxious substances are de Birnie et al.,

financed

by contributions

fined in some detail in Article 1(5) of this Convention.

International Law and the Environment, p. 440.

229

Articles 7 and 12.

369 Protection of the Marine Environment from receivers of HNS or titleholders for lique

fied natural gases (LNG) cargo pursuant to Articles

18 and 19. The aggregate amount of compensation payable by the HNS Fund shall not exceed 250 million SDR in respect of any one incident in accordance with Article 14(5)(a).

ficient number of fications. Thus, in April 2010, the Protocol to the HNS Convention was adopted in order

The HNS Convention has not entered into force because of an insuf rati

to bring the 1996 HNS Convention into effect.

230

Once the 2010 HNS Protocol enters into

force, the 1996 Convention, as amended by the 2010 Protocol, will be called the 2010 HNS Convention. Yet the 2010 Protocol has not yet entered into force.

231

Under the 2010 HNS

Protocol, hazardous or noxious substance cargoes are divided into two categories, namely, bulk hazardous or noxious substances and packaged hazardous or noxious substances. If damage is caused by bulk HNS, the shipowner is entitled to limit liability to an aggregate amount between 10 million SDR and 100 million SDR depending on the tonnage of the ship. Where damage is caused by packaged HNS or by both bulk HNS and packaged HNS, the maximum liability for the shipowner is 115 million SDR. Once this limit is reached, the HNS Fund will provide an additional tier of compensation up to a maximum of 250 million SDR, including compensation paid under the

first tier.

(b) Civil Liability for Nuclear Damage Currently there are growing concerns that the use of nuclear energy may cause the risk of nuclear damage to the marine environment. A civil liability regime for nuclear damage is based mainly on the following instruments:

•

the 1960 Paris Convention on Third Party Liability in the Field of Nuclear Damage,

232

as

amended by the Protocols of 1964, 1982 and 2004 (the Paris Convention),

•

the 1962 Convention on the Liability of Operators of Nuclear Ships (Brussels Convention 233

on Nuclear Ships),

•

the 1963 Vienna Convention on Civil Liability for Nuclear Damage as Amended by the 234

Protocol of 12 September 1997 (the 1997 Vienna Convention),

•

the 1971 Convention relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material,

•

235

the 1988 Joint Protocol Relating to the Application of the Vienna Convention and the Paris Convention,

•

236

and

the 1997 Convention on Supplementary Compensation for Nuclear Damage (the CSC).

230

IMO, International Conference on the Revision of the HNS Convention, LEG/CONF.17/DC/1, 29 April 2010. For a brief overview of the 2010 HNS Protocol, see

IMO News

Compensation Funds, the HNS Convention as modi

, Issue 2, 2010, p. 6; International Oil Pollution

fied by the 2010 HNS Protocol, September 2010,

available at: www.hnsconvention.org/the-convention/. 231 232 234 235

Denmark became the (1961) 55 (1997) 36

AJIL ILM

first country to sign the 2010 HNS Protocol in 2011. It ratifi ed the Protocol in 2018.

, p. 1082. Entered into force 1 April 1968.

237

233

(1963) 57

AJIL

, p. 268. Not in force.

, p. 1462. Entered into force 4 October 2003.

Entered into force 15 July 1975. The text is available at: www.admiraltylawguide.com/conven/ protooilpolfund1992.html.

236

237

1672

UNTS ILM

(1997) 36

, p. 301. Entered into force 27 April 1992. , p. 1473. Not yet entered into force.

370

Protection of Community Interests at Sea While a full examination of the above treaties is not possible here, at least four commonalities between these instruments can be identi

fied:

238

(i) The operator of a nuclear installation or a ship shall be liable wherever the nuclear incident occurred.

239

(ii) The liability is strict and no proof of fault or negligence is needed as a condition of liability.

240

(iii) The operator is obliged to maintain insurance or security for compensation.

241

(iv) In principle, the courts of the Contracting Party within whose territory the nuclear incident occurred has jurisdiction over nuclear damage from a nuclear incident.

242

In light of the recent development of the law of the sea with regard to the EEZ, the 1997 Protocol and 1997 CSC both provide that where a nuclear incident occurs within the area of the EEZ of a Contracting Party, jurisdiction over actions respecting nuclear damage from that nuclear incident shall lie only with the courts of that Party.

243

6.10 Issues of Special Concern: Invasive Alien Species and Ocean Noise

(a) Prevention of Invasive Alien Species A vessel needs to take on ballast water to stabilise it, especially when the vessel is unladen. However, discharge of ballast water into the sea may introduce invasive alien species which may produce negative impacts on marine ecosystems and damage economic activities in the oceans, such as

fisheries, aquaculture, tourism and marine infrastructure. Most of the

ballast water is taken from sea areas near the coast or ports and such areas are likely to be contaminated by human presence. Where ballast water is taken from a contaminated area, discharge of the water into another place may lead to the introduction of bacteria or viruses into the coastal waters of other States. In response to this problem, the International Convention for the Control and Management of Ship ’s Ballast Water and Sediments (hereinafter the Ballast Water Convention) was adopted under the auspices of the IMO in 2004.

244

The Ballast Water Convention aims to ‘prevent, minimise and ultimately eliminate the transfer

238

of

Harmful

Aquatic

Organisms

and

Pathogens

through

the

control

and

For an analysis in some detail of this issue, see Birnie et al., International Law and the Environment, pp. 520

et seq . 239

1997 Vienna Convention (Article II); the Paris Convention (Articles 3 and 6), as amended in 2004; Brussels Convention on Nuclear Ships (Article II); 1971 Convention relating to Maritime Carriage (Article I).

240

1997 Vienna Convention (Article IV); Paris Convention (Article 3), as amended 2004; Brussels Convention on Nuclear Ships (Article II).

241

1997 Vienna Convention (Article VII); Paris Convention (Article 10), as amended 2004; Brussels Convention on Nuclear Ships (Article III).

242 243 244

1997 Vienna Convention (Article XI); 1997 CSC (Article XIII); Paris Convention (Article 13). Article XI(1) bis of the 1997 Vienna Convention; Article XIII(2) of the 1997 CSC. Entered into force 8 September 2017. The text of the Convention was reproduced in M. Tsimplis, ‘Alien Species Stay Home: The International Convention for the Control and Management of Ships’ Ballast Water and Sediments 2004 ’ (2004) 19 IJMCL, pp. 446 et seq. See also F. de Souza Rolim, The International Law on

Ballast Water: Preventing Biopollution (Leiden, Nijhoff, 2008), pp. 100 et seq .

371 Protection of the Marine Environment management of ships ’ Ballast Water and Sediments’.

fined

de

245

Under Article 1(2), ‘ ballast water’ is

as ‘water with its suspended matter taken on board a ship to control trim, list,

draught, stability or stresses of the ship ’ . Article 2(1) of the Ballast Water Convention contains, inter alia, sediments,

246

five

obligations: (i) ensuring adequate facilities for the reception of

(ii) promotion of scienti

survey and certi

fication,

248

fic

247

and technical research and monitoring, 249

(iv) technical assistance,

(iii)

and (v) cooperation to address

threats and risks to sensitive, vulnerable or threatened marine ecosystems and biodiversity in areas beyond the limits of national jurisdiction in relation to ballast water management.

250

In addition, the detailed regulations for the control and management of ships’

ballast water and sediments are set out in the Annex which forms an integral part of the Convention. Notably, a ship to which this Convention applies may be subject to port State control in accordance with Article 9. Invasive alien species are also introduced via vessels ’ external structures, such as the hulls, and internal piping. In response, the application of anti-fouling compounds to ships ’ hulls is widely used. Yet anti-fouling substances can be harmful to the marine environment.

251

For instance, tributyltin (TBT), which is the most common and effective anti-

fouling substance used to date, has proved to have adverse effects on marine life. In this regard, in October 2001, the International Convention on the Control of Harmful AntiFouling Systems on Ships was adopted.

252

This Convention places an obligation upon each

Party to prohibit the application, re-application, installation or use of harmful anti-fouling systems on ships in accordance with Article 4.

253

Like the Ballast Water Convention, ships

to which this Convention applies may be subject to port State control in any port, shipyard or offshore terminal of a Party in conformity with Article 11.

(b) Regulation of Ocean Noise Another emerging issue in international law governing marine environmental protection relates to the regulation of ocean noise.

254

Signi

ficant levels of noise may arise from three

primary sources: commercial shipping, seismic surveys and military sonar. For marine species, sound plays a key role in communication, navigation, orientation, feeding and the detection of predators. However, the introduction of anthropogenic sound into the marine environment may interfere with these functions.

255

In this regard, UN General

Assembly Resolution of 2017 noted that ocean noise has potentially signi

245 250 251

Article 2(1).

246

Article 5(1).

247

Article 6(1).

248

Article 7(1).

249

ficant

adverse

Article 13.

Article 2(9). Generally on this issue, see J. Roberts and M. Tsamenyi, ‘International Legal Options for the Control of Biofouling on International Vessels’ (2008) 32 Marine Policy, pp. 559–569.

252

For the text of the Convention, see IMO, AFS/CONF/26, 18 October 2001. Entered into force 17 September 2008. For an outline of the Convention, see Harrison, Saving the Oceans, pp. 130–132.

253

Under Article 2(2), ‘anti-fouling system’ means ‘a coating, paint, surface treatment, surface, or device that is used on a ship to control or prevent attachment of unwanted organisms’.

254

Generally on this issue, see UN General Assembly, Report of the Secretary-General, Oceans and the Law of the Sea, 20 March 2018, A/73/68.

255

Ibid., p. 7, para. 25.

372 Protection of Community Interests at Sea impacts on living marine resources.

256

fic

To this day, however, there is no speci

treaty

governing the regulation of ocean noise.

finition

One can argue that underwater noise falls within the de

of ‘ marine pollution’

under Article 1(1)(4) of the LOSC, as acoustic waves can be interpreted to be included in the concept of ‘energy ’ under the de

finition.

257

It is also to be noted that Article 194(1) of

the LOSC requires States to take all measures that are necessary to prevent pollution of the marine environment from

‘any

source’ . Yet the LOSC contains no speci

fic

provision

regulating underwater noise. Given that the provisions of the Convention regarding the protection and preservation of the marine environment do not apply to any warship and naval auxiliary under Article 236, it is less easy to regulate military sonar under the Convention.

258

Acoustic noise has been discussed in various forums, such as the IMO, FAO, the IWC, the Convention on the Conservation of Migratory Species of Wild Animals, the Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas and the Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area, the Convention on Biological Diversity, and the London Dumping Convention and its Protocol.

259

It is particularly noticeable that the Marine Environment Protection Committee

of the IMO approved the Guidelines for the Reduction of Underwater Noise from Commer260

cial Shipping to Address Adverse Impacts on Marine Life in 2014.

While the Guidelines

are not a binding instrument, they seek to provide general advice about reduction of underwater noise to designers, shipbuilders and ship operators.

261

On 31 August 2004, the European Parliament adopted a Resolution on the Environmental Effects of High-Intensity Active Naval Sonar. This resolution called upon the EU and its Member States to adopt a moratorium on the deployment of high-intensity active naval sonars until a global assessment of their cumulative environmental impact on marine mammals,

256

fish

262

and other marine life has been completed.

Further to this, the Marine

UN General Assembly Resolution 72/73, Oceans and the Law of the Sea, A/RES/72/73, 5 December 2017, p. 44, para. 271.

257

See for instance, K. N. Scott, ‘International Regulation of Undersea Noise’ (2004) 53 ICLQ, p. 293; N. MatzLück, ‘Underwater Pollution by Vessel Noise: A European Perspective’, in E. Franckx and P. Gautier, The Exercise of Jurisdiction over Vessels: New Developments in the Fields of Pollution, Fisheries, Crimes at Sea and Traf

ficking of Weapons of Mass Destruction

(Brussels, Bruylant, 2010), pp. 99–100; I. Papanicolopulu,

‘The European Union and the Regulation of Underwater Noise Pollution’, in D. Vidas and P. J. Schei, The

World Ocean in Globalisation: Climate Change, Sustainable Fisheries, Biodiversity, Shipping, Regional Issues (Leiden, Brill/Nihoff, 2011), p. 459. 258

In the case of Winter v NDRC, the Supreme Court of the United States ruled that the public interest in conducting training exercises with active sonar by the Navy plainly outweighed the environmental interests advanced by Natural Resources Defense Council, that is, protection of marine mammals, even though military interests did not always trump other considerations. Winter, Secretary of the Navy et al. v Natural Resource Defence Council et al. , 555 U.S. 7 (2008), p. 16.

259

Papanicolopulu, ‘The European Union and the Regulation of Underwater Noise Pollution’, pp. 460–463; Report of the Secretary-General, A/73/68, p. 11, para. 42.

260 262

IMO, MEPC.1/Circ.833, 7 April 2014.

261

Paragraph 3.1.

Resolution of 28 October 2004 (P6_TA(2004)0047), Of 14 July 2005.

ficial Journal of the European Union, C 174 E/186,

373

Protection of the Marine Environment Strategy Framework Directive was adopted in 2008. Under Article 1(1), this Directive establishes a framework within which Member States are to take the necessary measures to achieve or maintain ‘good environmental status ’ in the marine environment by the year 2020 at the latest. In order to achieve ‘good environmental status ’, Article 3(5)(b) requires that: ‘ Anthropogenic inputs of substances and energy, including noise, into the marine environment do not cause pollution effects. ’ Notably, ‘ human-induced marine underwater noise’ is explicitly included in the de

finition of pollution under Article 2(8) of the Directive.

In addition, Table 2 of Annex III of the Directive includes underwater noise from shipping and underwater acoustic equipment within the indicative lists of pressure and impacts on the environmental status.

263

fic measures to reduce noise

Yet the Directive provides no speci

emissions. Overall, the regulation of ocean noise remains largely sectoral, focused on certain noiseemitting activities or on certain affected species. In particular, challenges in the regulation of ocean noise at the global level are: (i) the absence of intergovernmental forums for certain sound-producing activities, (ii) a lack of common internationally agreed standards of acceptable noise levels and mitigation techniques, and (iii) a lack of common measurements standards.

264

7 DUMPING AT SEA

7.1 Regulation of Dumping at Sea Under the LOSC

Even though ocean dumping has been decreasing over the decades, it is still a matter of concern in marine environmental protection.

265

Indeed, dumping of wastes at sea is

problematic since it imposes pollution risks on many other States for the bene

fit of a small

number of industrialised States. In this regard, the LOSC provides prescriptive and enforcement jurisdiction regulating dumping at sea. Concerning prescriptive jurisdiction, Article 210(1) requires States to adopt laws and regulations

to

prevent,

reduce

and

control

pollution

of

the

marine

environment

by

dumping. Such laws and regulations shall ensure that dumping is not carried out without the permission of the competent authorities of States in accordance with Article 210(3). Article 210(5) further provides that dumping within the territorial sea and the EEZ or onto the continental shelf shall not be carried out without the express prior approval of the

263

fi ned as:

Under Article 3(4) of the Directive, ‘environmental status’ is de

‘the overall state of the environment

in marine waters, taking into account the structure, function and processes of the constituent marine ecosystems together with natural physiographic, geographic, biological, geological and climatic factors, as well as physical, acoustic and chemical conditions, including those resulting from human activities inside or outside the area concerned’. 264 265

Report of the Secretary-General, A/73/68, p. 11, para. 43. D. L. VanderZwaag, ‘The International Control of Ocean Dumping: Navigating From Permissive to Precautionary Shores ’, in R. Rayfuse (ed.), (Cheltenham, Edward Elgar, 2015), p. 133.

Research Handbook on International Marine Environmental Law

374

Protection of Community Interests at Sea coastal State. There is no reference to internal waters in this provision. However, it is clear that no dumping may be carried out in these waters without the consent of the coastal State. In addition, Article 210(6) ensures that national laws and regulations shall be no less effective in preventing, reducing and controlling such pollution than the global rules and standards. In relation to enforcement jurisdiction, Article 216(1)(a) requires the coastal State to enforce laws and regulations and applicable international rules and standards for the prevention of marine pollution by dumping within its territorial sea or its EEZ or onto its continental shelf. With regard to vessels registry, the

fl ag

flying

its

flag

or vessels or aircraft of its

State is required to enforce laws and international rules to prevent

pollution by dumping.

266

Concerning acts of loading of wastes or other matter occur-

ring within its territory or at its offshore terminals, any State shall enforce laws and international rules to prevent pollution by dumping.

267

In summary, the LOSC does not

prohibit dumping, while requiring States to regulate and control marine pollution by dumping at sea.

7.2 The 1972 London Dumping Convention and the 1996 Protocol

Post-LOSC development of regulation of dumping at sea can be essentially characterised by a paradigm shift in the regulatory approach ‘ from permission to prohibition’. At the global level, the shift is clearly re Protocol.

flected in the 1972 London Dumping Convention and the 1996

268

The 1972 London Dumping Convention adopted the black/grey list approach. According to this approach, waste materials are divided into three categories. On the one hand, the dumping of wastes or other matter listed in Annex I (the black list) is prohibited pursuant to Article IV(1). These wastes include organohalogen compounds, mercury, cadmium, persistent plastics, crude oil and its wastes, radioactive wastes and materials produced for biological and chemical warfare.

269

However, the dumping of wastes or other matter listed

in Annex II (the grey list) and all other wastes is permitted with a prior special permit under Article IV(1)(b) and (c). In summary, one can argue that the approach adopted by the London Dumping Convention is largely permissive. By contrast, the 1996 Protocol to the London Dumping Convention replaced the black/ grey list approach by the so-called ‘reverse listing ’ approach. In this regard, Article 4(1) of the Protocol stipulates:

266 268

LOSC, Article 216(1)(b).

267

LOSC, Article 216(1)(c).

The London Protocol will supersede the London Dumping Convention as between Contracting Parties to the Protocol which are also Parties to the Convention (Article 23 of the London Protocol). Further, see VanderZwaag, ‘The International Control of Ocean Dumping’, pp. 134–137; Harrison, pp. 96

269

et seq.

Saving the Oceans,

Concerning radioactive wastes, the 1972 London Dumping Convention prohibited the dumping only of high-level radioactive matter de

fi ned by IAEA as unsuitable for this form of disposal. As a consequence, the

dumping of low-level radioactive wastes was permitted under the Convention (Annex I, para. 6; Annex II, para. (d)).

375 Protection of the Marine Environment

1(a) Contracting Parties shall prohibit the dumping of any wastes or other matter with the 270

exception of those listed in Annex 1.

(b) The dumping of wastes or other matter listed in Annex 1 shall require a permit. Contracting Parties shall adopt administrative or legislative measures to ensure that issuance of permits and permit conditions comply with the provisions of Annex 2. Particular attention shall be paid to opportunities to avoid dumping in favour of environmentally preferable alternatives.

According to the reverse listing approach, the dumping of wastes is in principle prohibited, and exceptions must be clearly listed in paragraph 1 of Annex 1. The dumping of wastes or other matter listed in Annex 1 must require a permit. In this regard, Contracting Parties are required to adopt administrative or legislative measures to ensure that the issue of permits and permit conditions comply with the provisions of Annex 2.

271

Notably,

Annex 2 to the Protocol contains assessment of wastes that may be considered for dumping. Incineration at sea of wastes or other matter is also banned by Article 5. Furthermore, Article 6 prohibits Contracting Parties from exporting wastes or other matter to other countries for dumping or incineration at sea. The reverse listing approach of the 1996 Protocol seems to contrast with the black/grey list approach in the 1972 London Dumping Convention. Under the 1972 London Dumping Convention, anything may be dumped at sea unless it is prohibited. By contrast, nothing may be dumped unless it is permitted in the 1996 Protocol. The reverse listing approach in the Protocol seems to signify

ficant reversal of the burden of proof.

a signi

Under Article 8(1), however, the prohibition of the dumping and incineration at sea shall not apply in the case of

force majeure. Furthermore, by virtue of Article 8(2), a Contracting

Party may issue a permit as an exception to the above prohibition in emergencies posing an unacceptable threat to human health, safety or the marine environment and admitting of no other feasible solution. Before doing so, however, the Contracting Party shall consult any other countries that are likely to be affected. In relation to this, it is notable that even where dumping is permitted, the 1996 Protocol provides strict procedures for controlling the dumping. In this regard, Article 9(1) obliges each Contracting Party to designate an appropriate authority to: issue permits, keep records of the nature and quantities of all wastes or other matter for which dumping permits have been issued, and monitor the

270

Under Annex 1, paragraph 1, the following wastes or other matter are those that may be considered for dumping, being mindful of the objectives and general obligations set out in Articles 2 and 3 of the London Protocol:dredged material, sewage sludge,

fi sh waste, or material resulting from industrial fi sh processing

operations, vessels and platforms or other man-made structures at sea, inert, organic geological material, organic material of natural origin and bulky items primarily comprising iron, steel, concrete and similarly unharmful materials, and carbon dioxide streams from carbon dioxide capture processes for sequestration. Nonetheless, these materials containing levels of radioactivity greater than concentrations as de

for dumping under Annex 1, para. 3. 271

de minimis (exempt)

fined by the IAEA and adopted by Contracting Parties shall not be considered eligible

Article 4(1)(b) of the 1996 Protocol.

376

Protection of Community Interests at Sea conditions of the sea. Each Contracting Party is required to report to the IMO and where appropriate

to

other

Contracting

Parties

the

information

concerning

the

records

and

monitoring in accordance with Article 9(4). In addition, the 1996 Protocol relates to internal 272

waters only to the extent provided for in Article 7(2) and (3).

7.3 Regional Treaties

Dumping is likely to cause special problems particularly in enclosed or semi-enclosed seas owing to their natural integrity. In fact, regional conventions and protocols regulating dumping at sea apply in mostly enclosed or semi-enclosed seas areas such as the North-East Atlantic including the North Sea, 277

the Red Sea

273

and the South Paci

274

the Baltic,

275

the Mediterranean,

the Black Sea,

276

fic.

278

Notably, the paradigm shift from permission to prohibition of dumping at sea can also be detected in regional treaties, such as in treaties protecting the North-East Atlantic. Dumping in the North-East Atlantic has been regulated by the 1972 Oslo Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft (hereinafter the Oslo Convention).

279

The Oslo Convention adopted the black/grey list approach. Substances

listed in Annex I (black list) are prohibited under Article 5. However, Article 6 stipulates that no waste containing such quantities of the substances and materials listed in Annex II (grey list) shall be dumped without a speci

fic

permit in each case from the appropriate

national authority or authorities. In 1992, however, the Oslo Convention was replaced by the OSPAR Convention. The OSPAR Convention prohibited the dumping of all wastes or 280

other matter, except those wastes or other matter listed in Article 3(2)(3) of Annex II.

It

can be said that the OSPAR Convention adopts the reverse listing approach. A similar shift of approach can be seen in instruments with regard to the protection of the Mediterranean Sea. The 1976 Protocol for the Prevention of Pollution of the Mediterranean

272

The London Dumping Convention explicitly excludes coverage of dumping in internal waters under Article III(3).

273 275

274

1992 OSPAR Convention.

1992 Helsinki Convention.

1995 Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean (Barcelona Convention). Entered into force 9 July 2004. The text is available at: https:// planbleu.org/sites/default/

files/upload/ files/Barcelona_convention_and_protocols_2005_eng.pdf.

1976 Protocol for the Prevention and Elimination of Pollution of the Mediterranean Sea by Dumping from Ships and Aircraft. Entered into force 12 February 1978 and revised in 1995 as the Protocol for the Prevention and Elimination of Pollution of the Mediterranean Sea by Dumping from Ships and Aircraft or Incineration at Sea. Not in force. The text of the 1995 Protocol is reproduced in the UNEP Mediterranean

Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean and its Protocols (Athens, 2005). 1992 Convention on the Protection of the Black Sea against Pollution. (1993) 32 ILM, p. 1110; (1993) 22 Law of the Sea Bulletin , p. 31. 1992 Protocol on Protection of the Black Sea Marine Environment against Pollution by Dumping. All in force in 1994. (1993) 32 ILM, p. 1129; (1993) 22 Law of the Sea Bulletin , p. 47. Action Plan,

276

Entered into force in 1994. 277

1982 Regional Convention for the Conservation of the Red Sea and Gulf of Aden Environment. The text is available at: www.persga.org/Documents/Doc_62_20090211112825.pdf. Entered into force 20 August 1985.

278

1986 Protocol for the Prevention of Pollution of the South Paci

fic Region by Dumping. (1987) 26 ILM, p. 65.

Entered into force 22 August 1990. 279

Terminated on 25 March 1998.

280

Article 3(1) of Annex II.

377

Protection of the Marine Environment Sea by Dumping from Ships and Aircraft took the black/grey list approach.

281

Later, the

black/grey list approach was replaced by the reverse listing approach in the 1995 Protocol for the Prevention and Elimination of Pollution of the Mediterranean Sea by Dumping from Ships and Aircraft or Incineration at Sea, which modi

fied the 1976 Protocol.

282

7.4 Ocean Sequestration and Fertilisation

In addition to traditional dumping, currently the legality of ocean sequestration and fertilisation is at issue. These are two distinct techniques to reduce anthropogenic emissions and atmospheric concentrations of CO 2 .

(a) Ocean Sequestration Ocean sequestration involves the injection of CO 2 directly into the water column (typically below 1,000 metres) via a

fixed pipeline or a moving ship or onto the sea floor at depths

below 3,000 metres, where CO 2 is denser than water and is expected to form a ‘lake’ , via a

fixed pipeline or an offshore platform.

283

On 2 November 2006, the Resolution adopted by

the First Meeting of Contracting Parties to the London Protocol recognised that carbon dioxide capture and sequestration represents an important interim solution. Thus the 1996 London Protocol was amended so as to permit the storage of carbon dioxide under the seabed.

284

On 30 October 2009, Article 6 of the London Protocol was amended with a

view to permitting the export of carbon dioxide streams for disposal in accordance with Annex 1.

285

fic

Furthermore, in 2012, the Parties adopted revised Speci

Guidelines for

Assessment of Carbon Dioxide Streams for Disposal into Sub-seabed Geological Formations 286

to implement the amendment to Article 6 of the London Protocol.

(b) Ocean Fertilisation Ocean fertilisation is an environmental modi

fication technique which fertilises the ocean

with nutrients such as iron, nitrogen or phosphorus in an attempt to produce massive phytoplankton blooms which may increase absorption of CO 2 from the atmosphere.

281 282 283

284

Articles 4, 5 and 6. (1976) 15

ILM

, p. 300. Entered into force 12 February 1998.

Article 4. Not yet in force. B. Mets, O. Davidson, H. de Coninck, M. Loos and L. Meyer (eds.),

Capture and Storage

287

IPCC Special Report on Carbon Dioxide

(Cambridge University Press, 2005), p. 7.

Resolution LP.1(1) on the Amendment to Include CO 2 Sequestration in Sub-Seabed Geological Formations in Annex 1 to the London Protocol. The amendment entered into force in 2007.

285 286 287

Resolution LP.3(4) on the Amendment to Article 6 of the London Protocol. Not entered into force. Adopted 2 November 2012, LC 34/15, annex 8. Generally on this issue, see R. Rayfuse, M. G. Lawrence and K. M. Gjerde, ‘Ocean Fertilization and Climate Change: The Need to Regulate Emerging High Seas Uses’ (2008) 23

IJMCL

, pp. 297– 326; A. Strong, S.

Chisholm, C. Miller and J. Cullen, ‘Ocean Fertilization: Time to Move On’ (2009) 461

Nature

, pp. 347– 348; K.

N. Scott, ‘Exploiting the Oceans for Climate Change Mitigation: Case Study on Ocean Fertilization’, in C. Scho

field, S. Lee and Moon-Sang Kwon (eds.), The Limits of Maritime Jurisdiction (Leiden, Brill/Nijhoff,

2014), pp. 653– 677; Kim Jung-Eun, ‘Implications of Current Developments in International Liability for the Practice of Marine Geo-Engineering Activities’ (2014) 4

Asian Journal of International Law

, pp. 235–260; S.

P. Broder, ‘International Governance of Ocean Fertilization and other Marine Geoengineering Activities’ in

378 Protection of Community Interests at Sea Ocean fertilisation can remove carbon dioxide only and cannot reduce any other greenhouse gases (GHG), such as methane, nitrous oxide, and

fluorinated gases.

288

The effective-

ness, safety and effect of ocean fertilisation on marine and human environments has not been well established. In particular, ocean fertilisation may entail the risk of affecting the highly complex structure of ocean food chains. In light of the potential risks of harmful effects on the environment, the regulation of ocean fertilisation has been the subject of discussions in international forums, such as the COP to the Convention on Biological Diversity and the Consultative Meetings of the Parties to the London Dumping Convention and its Protocol.

289

In this regard, development of a legal framework for ocean fertilisation under the London Dumping Convention and Protocol merits a mention. The Resolution adopted by the Contracting Parties to the London Dumping Convention and the London Protocol on 31 October 2008 agreed that ‘the scope of the London Convention and Protocol includes 290

ocean fertilization activities ’ .

The Resolution of 2008 further agreed that ‘ given the

present state of knowledge, ocean fertilization activities other than legitimate scienti 291

research should not be allowed ’ .

fic

Yet the 2008 Resolution is not binding.

To develop a binding legal regime to regulate ocean iron fertilisation and marine geoengineering more generally, in October 2013, at the eighth Meeting of the Parties, the

five States Parties to the 1996 Protocol adopted amendments to the Protocol. is the first treaty to directly regulate marine geoengineering for climate mitigation pose. A new Annex 4 defined ocean fertilization as:

292

forty-

293

‘

This pur-

’

[A]ny activity undertaken by humans with the principal intention of stimulating primary productivity in the oceans. Ocean fertilization does not include conventional aquaculture, or

fi

mariculture, or the creation of arti

294

cial reefs.

C. Espósito et al. (eds.), Ocean Law and Policy: 20 Years under UNCLOS (Leiden, Brill/Nijhoff, 2016), pp. 307 –343. Since 1993, thirteen experiments of ocean iron fertilisation have been initiated. Most of them have been on the high seas. Ibid., p. 308. 288 289

Ibid., p. 317. B. Boschen, ‘The Regulation of Ocean Fertilisation and Marine Geoengineering under the London Protocol’, in R. S. Abate (ed.), Climate Change Impacts on Ocean and Coastal Law: U.S. and International Perspectives (Oxford University Press, 2015), p. 368.

290 291

Paragraph 1, Resolution LC-LP.1 on the Regulation of Ocean Fertilization. Ibid. , para. 8. In 2008, the COP to the Convention on Biological Diversity also requested Parties and urged other governments to ensure that ocean fertilisation activities do not take place until there is an adequate scienti

fic basis in accordance with the precautionary approach. Paragraph C(4) of the Decision IX/16, UNEP/

CBD/COP/DEC/IX/16, 30 May 2008. See also para. 8(w) of the Decision X/33, UNEP/CBD/DEC/X/33, 29 October 2010. 292

Resolution LP.4(8) on the Amendment to the London Protocol to Regulate the Placement of Matter for Ocean Fertilisation and Other Marine Geoengineering Activities, 18 October 2013. Not entered into force. Further, see P. Verlaan, ‘New Regulation of Marine Geo-engineering and Ocean Fertilization ’ (2013) 28 IJMCL , pp. 729–736; Broder, ‘International Governance of Ocean Fertilization’, pp. 334 et seq.; Boschen, ‘The Regulation of Ocean Fertilisation ’, pp. 380 et seq.

293

K. N. Scott, ‘Geoengineering and the Marine Environment’, in Rayfuse (ed.), Research Handbook on International Marine Environmental Law, p. 458.

294

Annex 4, 1(1).

379

Protection of the Marine Environment The Annex prohibits all ocean fertilisation activities other than continuing legitimate scienti

fic

research.

295

Furthermore, a new Annex 5, entitled Assessment Framework for

Matter That May be Considered for Placement under Annex 4, was added. This Framework aims to assess placement activities listed in Annex 4 and forms the basis for developing Speci

fic Assessment Frameworks for placement activities listed in Annex 4.

296

The amended Protocol also regulates marine geoengineering. Under Article 5

bis,

‘marine

geoengineering’ means ‘ a deliberate intervention in the marine environment to manipulate natural processes, including to counteract anthropogenic climate change and/or its impacts, and that has the potential to result in deleterious effects, especially where those effects may

bis (1),

be widespread, long lasting or severe’ . A new article in the Protocol, i.e. Article 6 stipulates:

Contracting Parties shall not allow the placement of matter into the sea from vessels, aircraft, platforms or other man-made structures at sea for marine geoengineering activities listed in annex 4, unless the listing provides that the activity or the subcategory of an activity may be authorised under a permit.

Under Article 6

bis(2),

‘ [a] permit shall only be issued after the activity has undergone

assessment which has determined that pollution of the marine environment from the proposed activity is, as far as practicable, prevented or reduced to a minimum’ . Overall Article 6

bis

seems to institute a presumption that marine geoengineering is generally not

permitted, with the limited exceptions listed in Annex 4.

297

8 REGULATION OF POLLUTION FROM SEABED ACTIVITIES

8.1 Marine Pollution Arising From Seabed Activities Under National Jurisdiction

The Geneva Conventions paid little attention to the regulation of marine pollution arising from seabed activities. Article 24 of the 1958 Geneva Convention on the High Seas merely places a general obligation upon every State to ‘draw up regulations to prevent pollution of the seas by the discharge of oil from ships or pipelines or resulting from the exploitation and exploration of the seabed and its subsoil, taking account of existing treaty provisions on the subject ’ . Likewise, Article 5 of the 1958 Geneva Convention on the Continental Shelf provides a general obligation which requires the coastal State to undertake, in the safety zones around continental shelf installations, all appropriate measures for the protection of the living resources of the sea from harmful agents. These obligations under the Geneva Conventions were slightly ampli

fied by

the LOSC.

Article 208(1) obliges coastal States to adopt laws and regulations to prevent, reduce and control pollution of the marine environment arising from or in connection with seabed

295

Annex 4, 1(3).

296

Annex 5, 1.

297

Scott, ‘Geoengineering and the Marine Environment’, p. 460.

380 Protection of Community Interests at Sea activities subject to their jurisdiction and from arti

ficial islands, installations and structures

under their jurisdiction pursuant to Articles 60 and 80. Such laws and regulations shall be no

less

effective

than

international

rules,

standards

and

recommended

practices

and

procedures under Article 208(3). Such international rules are embodied in the 1990 OPRC and its Protocol.

298

Furthermore, Regulation 39 of Annex I of MARPOL 73/78 provides

special requirements for

fixed or floating platforms engaged in seabed activities, while the

MARPOL Convention does not apply to the release of harmful substances directly arising from the exploration, exploitation and associated offshore processing of seabed mineral resources under Article 2(3)(b)(ii). Article 214 of the LOSC requires States to enforce their laws and regulations adopted in accordance with Article 208 and shall adopt laws and regulations and take other measures necessary to implement applicable international rules and standards to prevent, reduce and control pollution of the marine environment arising from seabed activities subject to their jurisdiction. Furthermore, under Article 208(4), States shall endeavour to harmonise their policies

on

the

regulation

of

pollution

from

seabed

activities

at

the

appropriate

regional level. Regional conventions hold obligations to prevent and eliminate pollution from seabed activities in more detail. One can take the Helsinki Convention as an example. Article 12 of the Convention places an explicit obligation upon each Contracting Party to take all measures to prevent pollution of the Baltic Sea area resulting from exploration or exploitation of its part of the seabed and the subsoil thereof. The obligation is further ampli

fied by

Annex VI. Regulation 2 requires the Contracting Parties to use the best available technology and best environmental practice in order to prevent and eliminate pollution from offshore activities. Regulation 3 further requires that an environmental impact assessment shall be made before an offshore activity is permitted to start. In addition to this, Regulations 4 and 5 provide requirements with regard to discharges during the exploration and exploitation phases in some detail. On the other hand, to date, there are only a few treaties with regard to liability for pollution by seabed activities under national jurisdiction.

299

An example is the 1977 Con-

vention on Civil Liability for Oil Pollution Damage Resulting from Exploration for and Exploitation of Seabed Mineral Resources.

300

This is a regional treaty and only States with

coastlines on the North Sea, the Baltic Sea or that part of the Atlantic Ocean to the north of 36

±

301

north latitude may become Contracting Parties.

This Convention seeks to adopt

uniform rules and procedures for determining questions of liability and providing adequate compensation to persons who suffer damage caused by oil pollution posed by the exploration for and exploitation of seabed mineral resources. Another treaty which involves

298 299

IMO, Circular Letter No. 2456, Implication of UNCLOS for the Organization, 17 February 2003, Annex II. For an overview of regional treaties on this subject, see R. Pereira, ‘Pollution from Seabed Activities ’, in

IMLI Manual , vol. III, pp. 119 et seq. 300

Not yet in force. Text in: 1102 UNTS, p. 27.

301

Article 18.

381

Protection of the Marine Environment liability is the 1994 Mediterranean Protocol.

302

Article 27(1) of this Protocol requires the

Parties to cooperate as soon as possible in formulating and adopting appropriate rules and procedures for determining liability and compensation for damage resulting from the seabed activities.

8.2 Marine Pollution Arising From Seabed Activities in the Area

The environmental protection of the Area is essentially governed by Part XI of the LOSC. Article 209(1) of the LOSC provides: ‘International rules, regulations and procedures shall be established in accordance with Part XI to prevent, reduce and control pollution of the marine environment from activities in the Area. ’ Article 209(2) then obliges States to adopt laws and regulations to prevent, reduce and control pollution of the marine environment from activities in the Area undertaken by vessels, installations, structures and other devices

flying their flag or of their registry or operating under their authority. The requirements of such laws and regulations shall be no less effective than the international rules, regulations and procedures referred to in Article 209(1). Under Article 215 of the LOSC, enforcement of such international rules and regulations is to be governed by Part XI. In addition to States, the Authority has a valuable role in the environmental protection of the Area.

303

In this regard, Article 145 requires the Authority to adopt appropriate rules,

regulations and procedures for, inter alia:

(a) the prevention, reduction and control of pollution and other hazards to the marine environment, including the coastline, and of interference with the ecological balance of the marine environment, particular attention being paid to the need for protection from harmful effects of such activities as drilling, dredging, excavation, disposal of waste, construction and operation or maintenance of installations, pipelines and other devices related to such activities; (b) the protection and conservation of the natural resources of the Area and the prevention of damage to the

flora and fauna of the marine environment.

304

It is notable that Article 145 explicitly refers to ‘ the ecological balance of the marine environment ’ as well as ‘ the

flora and fauna of the marine environment . The prescriptive ’

jurisdiction of the Authority is also provided by the 1994 Implementation Agreement.

305

Furthermore, Regulation 31(1) of the 2000 Regulations on Prospecting and Exploration for

302

1994 Protocol for the Protection of the Mediterranean Sea against Pollution Resulting from Exploration and Exploitation of the Continental Shelf and the Seabed and its Subsoil. Entered into force 24 March 2011. The electronic text is available at: www.ifrc.org/docs/idrl/I449EN.pdf.

303

fi c Research and Bioprospecting: Some

T. Scovazzi, ‘Mining, Protection of the Environment, Scienti

Considerations on the Role of the International Sea-Bed Authority ’ (2004) 19

fl

IJMCL, pp. 392– 396;

Y. Tanaka, ‘Re ections on the Conservation and Sustainable Use of Genetic Resources in the Deep Seabed Beyond the Limits of National Jurisdiction’ (2008) 304 305

ODIL, pp. 133 –136.

See also Article 17(1)(b)(ix) and (xii) of Annex III of the LOSC. Section 1(5)(g) and (7) of Annex. See also section 1(5)(k) of Annex.

382 Protection of Community Interests at Sea Polymetallic Nodules in the Area and Related Matters (hereinafter the Polymetallic Nodules Regulations), amended in 2013, calls upon the Authority, in accordance with the Convention and the Agreement, to establish and keep under periodic review environmental rules, regulations and procedures to ensure effective protection for the marine environment from harmful effects which may arise from activities in the Area.

306

The Authority also has enforcement jurisdiction over the environmental protection of the Area. Indeed, the Council of the Authority has a jurisdiction to ‘ supervise and coordinate the implementation of the provisions of this Part [XI] on

the competence of the Authority 307

compliance ’ .

all questions and matters within

and invite the attention of the Assembly to cases of non-

It follows that the environmental protection of the Area is supervised by the

Council of the Authority. Furthermore, under Article 185(1) of the LOSC, the Authority is empowered to suspend the exercise of the rights and privileges of membership of a State Party which has grossly and persistently violated the provisions of Part XI of the LOSC. Article 162(2)(w) of the 1982 LOSC further obliges the Council of the Authority to ‘ issue emergency orders, which may include orders for the suspension or adjustment of operations, to prevent serious harm to the marine environment arising out of activities in the

firmed by Regulation 32(5) of the Polymetallic Nodules Regu-

Area ’ . This obligation is con

lations. It should also be noted that the Council of the Authority is to disapprove areas for exploitation by contractors or the Enterprise in cases where substantial evidence indicates the risk of serious harm to the marine environment pursuant to Article 162(2)(x) of the LOSC. In this connection, it must be noted that the Regulations adopted by the Authority are legally enforceable against contractors through specialised dispute settlement procedures under the LOSC.

308

Moreover, the Polymetallic Nodules Regulations place an explicit obligation upon the Authority as well as sponsoring States to apply the precautionary approach.

309

The appli-

cation of the precautionary approach is also provided in the 2010 Regulations on Prospecting and Exploration for Polymetallic Sulphides in the Area and the 2012 Regulations on Prospecting and Exploration for Cobalt-rich Ferromanganese Crusts in the Area. the dearth of scienti

310

Given

fic knowledge about the environment of the Area as well as its marine

ecosystems, it appears that the application of the precautionary approach is needed with a view to protecting the environment of the Area. In this respect, the Seabed Disputes Chamber of ITLOS has stated that ‘ the precautionary approach is also an integral part of the general obligation of due diligence of sponsoring States ’.

306

311

The electronic text is available at: https://ran-s3.s3.amazonaws.com/isa.org.jm/s3fs-public/

files/

documents/isba-19c-17_0.pdf. 307 308 309 310 311

Emphasis added. Article 162(2)(a). See LOSC, Articles 187 and 188. See also Harrison,

Saving the Oceans

, p. 240.

Regulation 31(2). See also Regulations 2(2), 5(1) and 31(5). See Regulations 2(2), 5(1), 33(2) and (5) of each instrument.

Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area , Case No. 17, 1 February 2011, para. 131, available at: www.itlos.org.

383 Protection of the Marine Environment In addition, in 2012, the Council of the Authority approved the Environmental Management Plan that identi

fied

nine ‘ Areas of Particular Environmental Interest’ across the

Clarion-Clipperton Zone, to be implemented over an initial three-year period and giving effect to the precautionary approach.

312

The Council’ s decision appears to demonstrate the 313

power of the Authority to designate protected areas under Article 145 of the LOSC.

9 E N V I R O N M E N T A L P R O T E C T I O N O F I C E - C O V E R E D A R E AS

9.1 Article 234 of the LOSC As ice-covered areas are known to be particularly vulnerable to marine pollution, these areas may need particular protective measures. A key provision in this matter is Article 314

234 of the LOSC:

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

fi

based on the best available scienti

c evidence.

This provision allows coastal States to unilaterally exercise both prescriptive and enforcement jurisdiction to prevent vessel-source marine pollution in ice-covered areas within the limits of the EEZ, without pre-approval or review of the IMO.

finition with regard to

While Article 234 contains no de

‘ice-covered areas ’, it is generally

agreed that the marine Arctic can be regarded as an ‘ ice-covered area ’. This provision leaves some room for discussion with regard to its interpretation and application.

315

Four points

can be made here. First, the spatial scope of Article 234 is not entirely clear. In this regard, two interpretations exist. According to broad interpretation, Article 234 is intended to embrace all waters

312

International Seabed Authority, Decision of the Council relating to an Environmental Management Plan for the Clarion-Clipperton Zone, ISBA/18/C/22, 26 July 2012, para. 1 and Annex. The concept of ‘Areas of Particular Environmental Interest ’ refers to a form of marine protected areas where no mining will be authorised to take place. Harrison,

Saving the Oceans

, p. 238. See also D. Johnson and M. A. Ferreira, ‘ISA

Areas of Particular Environmental Interest in the Clarion-Clipperton Fracture Zone ’ (2015) 30

IJMCL

,

pp. 559 –574. 313 314

315

Harrison,

Saving the Oceans

, p. 239.

Negotiation of this provision was conducted mainly by Canada, the United States and the Soviet Union.

Virginia Commentary

, vol. 4, p. 393.

For a detailed analysis of Article 234, see in particular, E. Franckx and L. Boone, ‘Article 234 ’, in Prölss,

A Commentary

, pp. 1566

et seq

.

384 Protection of Community Interests at Sea landward of 200 nautical miles, including the territorial sea, internal waters and straits.

316

According to the literal interpretation, Article 234 applies only within the EEZ. Article 55 of the LOSC clearly states that the EEZ is ‘ an area beyond and adjacent to the territorial sea’. In light of the ordinary meaning of the terms of a treaty, be the more convincing one.

317

the literal interpretation seems to

318

Second, interpretation of conditions for ice-covered areas is ambiguous. For instance, the meaning of ‘ most of the year’ is less clear. Furthermore,

‘climate

conditions and the

presence of ice ’ may vary from year to year, impeding predictability. Moreover, a change of natural conditions does not necessarily occur in all parts of the different seaways at the same time.

319

Thus the practical application of the conditions listed in Article 234 may

encounter some challenges. Third, Articles 211(5) and (6) and 220(3), (5) and (6) already provide the prescriptive and enforcement

jurisdiction

of

coastal

States

concerning

the

regulation

of

vessel-source

pollution in the EEZ. Accordingly, the effect of Article 234 seems to be that in ice-covered areas, coastal States may prescribe and enforce national rules, including rules with regard to design, construction, manning or equipment, that extend beyond generally accepted international rules.

320

These rules need not be adopted in consultation with the IMO. The

absence of a review procedure under the auspices of the IMO is an important feature of Article 234.

321

Fourth, the coastal State jurisdiction on the basis of Article 234 is limited by three elements: necessity of scienti

fic

evidence, non-discrimination and an obligation to pay

due regard to navigation and the protection and preservation of the marine environment. In addition, warships and other governmental vessels are exempted from the municipal law of

fic

coastal States. Since science is constantly evolving, scienti

evidence needs adjustment

over time. It seems to follow that ‘ laws and regulations’ under Article 234 must be reviewed and updated according to new scienti

fic evidence.

322

Furthermore, the degree of ‘due regard

to navigation ’ referred to in Article 234 needs further clari

316

fication.

323

This interpretation is supported by some commentators, including: Statement by B. Oxman in M. T. Lutz, ‘Legal Regimes of the Arctic ’ (1988) 40

American Society of International Law Proceedings, p. 334; ODIL , p. 47. Churchill

D. Pharand, ‘The Arctic Waters and the Northwest Passage: A Final Revisit’ (2007) 38 and Lowe appear to take a similar interpretation. Churchill and Lowe, 317 318

Law of the Sea ,

p. 348.

Article 31(1) of the 1969 Vienna Convention on the Law of Treaties. This interpretation is supported by the following commentators, such as: Franckx and Boone, ‘Article 234’, p. 1575; D. M. McRae and D. J. Goundrey, ‘Environmental Jurisdiction in Arctic Waters: The Extent of

University of British Colombia Law Review, p. 221; J. A. Roach and R. W. Smith, Excessive Maritime Claims , 3rd edn (Leiden, Brill/Nijhoff, 2012), p. 493; K. Bartenstein, ‘The “Arctic Article 234 ’ (1982) 16

Exception” in the Law of the Sea Convention: A Contribution to Safer Navigation in the Northwest Passage?’ (2011) 42 319 320

321

Ibid.,

ODIL,

p. 29.

p. 31.

Vessel-Source Marine Pollution, p. 215; E. J. Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution (Kluwer, 1998), pp. 420–421; R. D. Brubaker, ‘Straits in the Russian Arctic’ (2001) 32 ODIL, p. 269. Tan,

T. L. McDorman, ‘National Measures for the Safety of Navigation in Arctic Waters: NORDREG, Article 234 and Canada ’, in M. H. Nordquist, J. N. Moore, A. H. A. Soons and Hak-So Kim (eds.),

Convention: US Accession and Globalization Exception”’, p. 37. 322

Ibid.,

The Law of the Sea

(Leiden, Brill/Nijhoff, 2012), p. 418. Bartenstein, ‘The “Arctic

p. 40; McDorman, ‘National Measures ’, p. 421.

323

Ibid.,

pp. 421–423.

385

Protection of the Marine Environment Measures taken by the coastal State under Article 234 may be the subject of controversy. An example is the Northern Canada Vessel Traf effective on 1 July 2010.

324

fic Services Zone Regulations (NORDREG),

Under NORDREG, vessels of 300 gross tonnage or more and

vessels involved in towing or pushing another vessel with a combined gross tonnage of 500 gross tonnage or more are subject to mandatory ship reporting requirements. Mandatory ship reporting requirements also apply to vessels of any size that are carrying as cargo a pollutant or dangerous good or that are engaged in towing or pushing a vessel that is carrying a pollutant or dangerous goods.

325

fied NORDREG by reference

While Canada justi

to Article 234, several States objected to the mandatory ship reporting requirements.

326

As

shown in this example, the application of Article 234 may cause tension between the requirement for protecting ice-covered areas off coastal States and the navigational rights and freedom of user States.

327

9.2 Environmental Protection of the Marine Arctic

At present, there are growing concerns that the marine Arctic is threatened by multiple sources of marine pollution.

328

Unlike the Antarctic, which is governed by the 1959 Antarc-

tic Treaty, there is no framework treaty governing the marine Arctic. Hence environmental protection of the marine Arctic is governed by the LOSC and other environmental treaties. As relevant provisions of the LOSC have already been discussed in this chapter, this section brie

fly outlines other instruments applicable to the prevention of pollution in the marine

Arctic. In particular, this section focuses on four major sources of pollution in the region.

329

(a) Land-based Marine Pollution The 2009 Regional Programme of Action for the Protection of the Arctic Marine Environment

from

Land-based

Activities

adopted

in

the

Arctic

Council

(hereinafter

the

2009 Regional Programme of Action) recognises that land-based sources of pollution

324 325 326

The instrument is available at: https://laws-lois.justice.gc.ca/eng/regulations/SOR-2010-127/.

Ibid., sections 3 and 4. Roach and Smith, Excessive Maritime Claims, pp. 492–495. Further, see J. Kraska, ‘The Northern Canada

fic Services Zone Regulations (NORDREG) and the Law of the Sea

Vessel Traf

’ (2015) 30

IJMCL, pp. 225–254;

T. L. McDorman, ‘Canada, the United States and International Law of the Sea in the Arctic Ocean’, in T. Stephens and D. L. VanderZwaag (eds.), Polar Oceans Governance in an Era of Environmental Change (Cheltenham, Edward Elgar Publishing, 2014), pp. 253–268. See also IMO, Report of the Maritime Safety Committee on Its Eighty-Eighth Session, MSC 88/26, 15 December 2010, para. 11.34. 327

Further, see Franckx and Boone, ‘Article 234 ’, pp. 1580– 1585; J. Hartmann, ‘Regulating Shipping in the Arctic Ocean: An Analysis of State Practice ’ (2018) 49 ODIL , pp. 276–299. The application of Article 234 was at issue in the Arctic Sunrise Arbitration Award (Merits). In this case, the Annex VII Arbitral Tribunal ruled that the boarding, seizure and detention of the Arctic Sunrise did not constitute enforcement measures taken by Russia pursuant to its laws and regulations adopted in accordance with Article 234 of the LOSC. The Arctic Sunrise Arbitration (The Netherlands v the Russian Federation) , Award on Merits, 14 August 2015, p. 74, paras. 296 –297, available at: https://pca-cpa.org/en/cases/21/.

328

De

finitions of the marine Arctic vary according to the purposes of different instruments. By way of finition of the Arctic

example, IMO Guidelines for Ships Operating in Polar Waters provides a detailed de waters ’ (G.3.3). 329

Further, see Tanaka, ‘Four Models on Interaction between Global and Regional Legal Frameworks’.

‘

386 Protection of Community Interests at Sea located both within and outside the Arctic represent the major sources of pollutants to the Arctic marine environment.

330

It is suggested that large circumpolar rivers may be an

important source of mercury to the marine Arctic.

331

In particular, persistent organic

pollutants and heavy metals are considered sources with high priorities of action.

332

A concern is also voiced with regard to potential large-scale releases associated with accidents at existing nuclear sites in the Arctic, and accidental releases in connection with the handling of both the nuclear waste produced during normal operations of a nuclear reactor and the spent nuclear fuel from nuclear reactors. As discussed earlier,

334

333

land-based marine pollution is primarily regulated by regional

treaties since relevant provisions of the LOSC remain general and abstract in this matter. Nonetheless, there is no regional treaty to prevent land-based marine pollution in the Arctic region. Only a part of the marine Arctic is covered by the OSPAR Convention.

335

Article 3 of

the OSPAR Convention places an explicit obligation upon the Contracting Parties to take ‘ individually or jointly, all possible steps to prevent and eliminate pollution from land-

based sources in accordance with the provisions of the Convention, in particular as provided for in Annex I’ . However, three Arctic States, i.e. Canada, the Russian Federation and the United States, are not Contracting Parties of the OSPAR Convention. Accordingly, the OSPAR Convention alone is inadequate to protect the marine Arctic from land-based marine pollution. The prevention of land-based marine pollution has been discussed in the Arctic Council.

336

This organisation, which was established by the 1996 Ottawa Declaration, is the

leading intergovernmental forum for promoting cooperation and coordination between the Arctic States with regard to common Arctic issues, in particular sustainable development and environmental protection in the Arctic.

337

In 2013, the Arctic Council Secretariat

formally became operational at Tromsø, Norway. The Arctic Council has six working groups:

• Arctic Contaminants Action Program (ACAP), • Arctic Monitoring and Assessment Programme (AMAP),

330

2009 Regional Programme of Action, para. 1.3, available at: https://pame.is/index.php/projects/arcticmarine-shipping/older-projects/rpa-reports.

331

J. A. Fisher, D. Jacob, A. L. Soerensen, H. M. Amos, A. Steffan et al., ‘Riverine Source of Arctic Ocean Mercury Inferred from Atmospheric Observations ’ (2012) 5 Nature Geoscience, pp. 499– 504.

332 334 336

2009 Regional Programme of Action, p. 13, Table 2. See section 5 of this chapter.

335

333

Ibid., p. 10.

Article 1(a) of the OSPAR Convention.

For an analysis of the development of the Arctic Council, see Y. Takei, ‘The Role of the Arctic Council from an International Law Perspective: Past, Present and Future’ (2014) 6 Yearbook of Polar Law, pp. 349 –374; B. Baker, ‘The Developing Regional Regime for the Marine Arctic’, in E. J. Molenaar, A. G. Oude Elferink and D. R. Rothwell (eds.), The Law of the Sea and the Polar Regions: Interactions between Global and Regional

Regimes (Leiden, Brill/Nijhoff, 2013), p. 36 et seq . 337

For the text of the Declaration, see (1996) 35 ILM, p. 1382. Member States of the Council are: Canada, Denmark (including Greenland and the Faroe Islands), Finland, Iceland, Norway, the Russian Federation, Sweden and the United States. Observer status of the Arctic Council is open to non-Arctic States, InterGovernmental Organisations and NGOs. Further, see T. Pedersen, ‘Debates over the Role of the Arctic Council ’ (2012) 43 ODIL , pp. 146–156.

387 Protection of the Marine Environment • Conservation of Arctic Flora and Fauna (CAFF), • Emergency Prevention, Preparedness and Response (EPPR), • Protection of the Arctic Marine Environment (PAME), and • Sustainable Development Working Group (SDWG).

The Arctic Council adopted the Regional Programme of Action in 2009. Yet this is not a legally binding instrument that constrains the behaviour of States, but is a programme that aims to set up management objectives, strategies and measures.

338

Overall, the regional

legal framework for preventing land-based marine pollution in the marine Arctic remains modest.

(b) Vessel-source Marine Pollution In light of severe weather conditions for navigation, special rules and regulations concerning navigation through the marine Arctic were formulated through the IMO.

339

In 2009, the

IMO adopted the non-binding Guidelines for Ships Operating in Polar Waters (the Polar Guidelines).

340

The Polar Guidelines, which aim to promote the safety of navigation and

prevent pollution from ship operations in polar waters, include recommendations on construction, equipment, operational and environmental protection, and damage control. In 2012, the Maritime Safety Committee of the IMO adopted a new mandatory ship reporting system (SRS) in the Barents Area (Barents SRS).

341

Under this system, the

following categories of ship passing through or proceeding to and from ports and anchorages in the Barents SRS area are required to participate in the ship reporting system: all ships with a gross tonnage of 5,000 and above, all tankers, all ships carrying hazardous cargoes, a vessel towing when the length of the tow exceeds 200 metres, and any ship not under command, restricted in their ability to manoeuvre or having defective navigational aids.

342

In 2014, the IMO further adopted an International Code of Safety for Ships Operating in Polar Waters (Polar Code).

343

The Polar Code has been developed to supplement existing

IMO instruments in order to increase the safety of ships ’ operations and mitigate the impact on the people and environment in the remote, vulnerable and potentially harsh polar waters.

338 339

344

On the basis of the idea that any safety measure taken to reduce the probability

2009 Regional Programme of Action, p. 14 –15. See T. Henriksen, ‘The Future of Navigation in Ice-covered Areas: A View from the Arctic ’, in R. Caddell and R. Thomas (eds.), Shipping, Law and the Marine Environment in the 21st Century: Emerging Challenges for the Law of the Sea-Legal Implications and Liabilities (Oxford, Lawtext Publishing Limited, 2013), pp. 8–34; A. Chircop, ‘Regulatory Challenges for International Arctic Navigation and Shipping in an Evolving Governance Environment ’ (2014) 28 Ocean Yearbook, pp. 281–285.

340

IMO Resolution A.1024(26) adopted on 2 December 2009, A 26/Res.1024, 18 January 2010. Polar waters include both Arctic and Antarctic waters.

341 342 343

Resolution MSC 348(91) adopted on 28 November 2012. MSC 91/22/Add.2, Annex 27. Ibid., para. 1.1. Resolution MSC.385(94), Adopted on 21 November 2014, Report of the Marine Safety Commission on Its Ninety-Fourth Session, MSC 94/21/Add. 1, Annex 6. The Polar Code entered into force 1 January 2017 upon the entry into force of the new chapter XIV of SOLAS. Ibid., para. 3.

344

Ibid., Preamble, para. 1.

388 Protection of Community Interests at Sea of an accident will largely bene

fit the environment,

345

the Polar Code is designed to provide

for safe ship operation and the protection of the polar environment by addressing risks 346

present in polar waters.

Notably, the Polar Code acknowledges that polar water operation

may impose additional demands on ships, their systems and operation beyond the existing 347

requirements of the global treaties, i.e., SOLAS and MARPOL.

As for binding instruments on this subject, two treaties were adopted under the auspices of the Arctic Council: the 2011 Agreement on Cooperation in Aeronautical and Maritime Search and Rescue,

348

and the 2013 Agreement on Cooperation on Marine Oil Pollution

Preparedness and Response in the Arctic.

349

The 2011 Agreement is the

first legally binding

agreement negotiated under the auspices of the Arctic Council. The Agreement seeks to strengthen aeronautical and maritime search and rescue cooperation and coordination in the Arctic. Article 3(3) of the Agreement places an obligation upon each Party to promote the establishment, operation and maintenance of an adequate and effective search and rescue capability within its area as set forth in paragraph 2 of the Annex to this Agreement. The 2013 Agreement aims to strengthen cooperation, coordination and mutual assistance among the Parties on oil pollution preparedness and response in the Arctic in order to protect the marine environment from pollution by oil.

350

Overall these regional instruments

supplement existing global treaties with regard to vessel-source marine pollution prevention and safety of navigation.

(c) Marine Pollution from Seabed Activities Under National Jurisdiction As the Arctic is increasingly accessible owing to climate change, oil and gas exploitation in the marine Arctic is attracting the attention of States and energy industries.

351

However, the

marine Arctic is known to be particularly vulnerable to oil spills because of the potentially slow recovery from a spill in cold and seasonal ecosystems. Once oil is spilled, clean-up operations in the marine Arctic will encounter considerable dif remoteness and harsh weather conditions.

ficulties

owing to the

352

To this day, however, there is no regional treaty that pertains to seabed activities subject to national jurisdiction in the marine Arctic, and these activities are only partly regulated by the OSPAR Convention. Article 5 of the Convention places an obligation upon the

345 348

Ibid., Preamble, para. 5.

346

Ibid., Introduction, para. 1.

347

Ibid., Preamble, para. 2.

Entered into force January 2013. The electronic text is available at: https://oaarchive.arctic-council.org/ handle/11374/531.

349

Entered into force 25 March 2016. The text of the Agreement is available at: https://oaarchive.arcticcouncil.org/handle/11374/529.

350 351

Article 1. K. Hossain, T. Koivurova and G. Zojer, ‘Understanding Risks Associated with Offshore Hydrocarbon

Arctic Marine Governance: Opportunities for Transatlantic Cooperation (Berlin, Springer, 2014), pp. 160–161; J.-U. Schröder-Hingrichs, H. Development’, in E. Tedsen, S. Cavalieri and R. A. Kraemer (eds.),

Nilsson and J. Pålsson, ‘Sustainable Ocean Development in the Arctic: Making a Case for Marine Spatial Planning in Offshore Oil and Gas Exploration ’ (2013) 27 352

Ocean Yearbook, pp. 508 –510.

Although no large oil spills from seabed activities have been reported in the Arctic, smaller shipping accidents and incidents have been recorded there. Arctic Council,

Report

Arctic Marine Shipping Assessment 2009

(Arctic Council, 2009), pp. 86– 89; Schröder-Hinrichs, Nilsson and Pålsson, ‘Sustainable Ocean

Development in the Arctic ’, p. 511.

389 Protection of the Marine Environment Contracting Parties to ‘ take, individually and jointly, all possible steps to prevent and eliminate pollution from offshore sources in accordance with the provisions of the Convention, in particular as provided for in Annex III’ . In light of Article 1(j), (k) and (l), pollution from offshore sources includes pollution from offshore installations for the purposes of the exploration, appraisal or exploitation of liquid and gaseous hydrocarbons. It follows that the Contracting Parties must take, individually and jointly, all possible steps to prevent and eliminate pollution from offshore installations that seek to explore and exploit liquid and gaseous hydrocarbons in the maritime area and pipelines from which substances or energy reach the maritime area under Article 5 of the OSPAR

fi

Convention. The obligation under Article 5 of the OSPAR Convention is further ampli ed by Annex III. In 2010, the OSPAR Commission adopted the North-East Atlantic Environment Strategy.

353

In this Strategy, the OSPAR Commission stated, inter alia, that it would ‘ assess the

suitability of existing measures to manage oil and gas activities in Region I and, where necessary, offer to contribute to the work on offshore oil and gas activities taking place

fically under the Protection of the Arctic Marine Environ-

under the Arctic Council, speci

354

ment Working Group (PAME) ’ .

As mentioned earlier, however, the OSPAR Convention

covers only part of the marine Arctic. The regulation of offshore oil and gas activities has also been addressed by the Arctic Council. In 2009, the Council adopted the Arctic Offshore Oil and Gas Guidelines. While the Guidelines are not legally binding, they are intended to specify a set of recommended practices and strategic actions for consideration by those responsible for regulation of offshore oil and gas activities, with a view to securing common policy and practices.

355

According to the Guidelines, Arctic offshore oil and gas activities should be based on the following principles: (i) precautionary approach principles, (ii) polluter pays principles, (iii) continuous improvement, and (iv) sustainable development.

356

Notably, the Guidelines

outline the process of an environmental impact assessment in some detail the need to establish emergency preparedness.

358

357

and stress

In 2014, other oil and gas guidelines,

Arctic Offshore Oil and Gas Guidelines: Systems Safety Management and Safety Culture, 359

were issued by the Arctic Council ’ s Working Group on the PAME.

These Guidelines seek

to enhance and supplement the 2009 Arctic Offshore Oil and Gas Guidelines. In light of their non-binding nature, however, the implementation of the Guidelines relies on the will of States.

353

Strategy of the OSPAR Commission for the Protection of the Marine Environment of the North-East Atlantic 2010–2020.

354 355

Paragraph 4(2)(h). Region I covers Arctic waters.

Arctic Offshore Oil and Gas Guidelines handle/11374/62.

356 359

Ibid

., p. 7.

357

Ibid

., pp. 13 –20.

(2009), p. 4, available at: https://oaarchive.arctic-council.org/

358

Ibid

., pp. 43– 47.

The Guidelines are available at: https://oaarchive.arctic-council.org/handle/11374/62.

390 Protection of Community Interests at Sea (d) Transboundary Air Pollution

Science shows that long-range transport of pollution to the Arctic carries toxic substances, such as mercury or persistent organic pollutants, which may have adverse effects on ecosystems and human health.360 Arctic haze, which is largely composed of sulfate aerosol and particulate organic matter, is a visible manifestation of long-range transported air pollution.361 Transboundary air pollution affects the marine Arctic since harmful substances which remain in the air eventually reach the oceans. In this regard, it is important to note that most pollutants in Arctic air come from sources outside the Arctic at more southerly latitudes.362 These pollutants are carried to the Arctic by winds passing over the three main source regions, i.e. Europe, North America and Asia.363 Accordingly, air pollution in the Arctic is transboundary by nature. As causes of transboundary air pollution in the Arctic are attributed to more than one State, transboundary air pollution in the Arctic creates the shared responsibility of multiple States.364 This situation clearly differs from traditional bilateral atmospheric pollution as typically shown in the Trail Smelter Arbitration. Transboundary air pollution in the marine Arctic can be partly regulated by some treaties, such as: the LOSC,365 the 1979 Convention on Long-Range Transboundary Air Pollution (the 1979 ECE Convention),366 the 2001 Stockholm Convention on Persistent Organic Pollutants (the Stockholm POPs Convention),367 the 2013 Minamata Convention on Mercury368 and the OSPAR Convention.369 However, the global and regional legal frameworks for protecting the marine environment from long-range transboundary air pollution exist only in piecemeal fashion. In the case of transboundary air pollution, establishing causation would be much more complicated when compared to bilateral air pollution. Therefore, it is difficult to prove the precise time or place of damage attributable to a particular State or States.370 An injured State will encounter considerable difficulty in invoking State responsibility for environmental harm to the oceans arising from long-range air pollution.

360 361 362 363

K. S. Law and A. Stohl, Arctic Air Pollution: Origins and Impacts (2007) 315 Science, p. 1537. AMAP, Arctic Pollution 2006: Acidification and Arctic Haze (Oslo, 2006), p. v. Law and Stohl, Arctic Air Pollution , p. 1537. AMAP, Arctic Pollution 2006, p. 5; D. VanderZwaag, Land-based Marine Pollution and the Arctic: Polarities between Principles and Practice , in D. Vidas, Protecting the Polar Marine Environment: Law and Policy for Pollution Prevention (Cambridge University Press, 2000), p. 179. Further, see Y. Tanaka, Reflections on Transboundary Air Pollution in the Arctic: Limits of Shared Responsibility (2014) 83 NJIL, pp. 213 250. Article 212. See, in particular, Articles 2 and 3. Entered into force in 1983. The electronic text is available at: www.unece.org/fileadmin/DAM/env/lrtap/full%20text/1979.CLRTAP.e.pdf. See, in particular, Articles 3 and369 5. Entered into force 17 May 2004. Text in: 2256 UNTS, p. 119. See, in particular, Article 8. Article 3. P. N. Okowa, State Responsibility for Transboundary Air Pollution in International Law (Oxford University Press, 2000), p. 184; Tanaka, Reflections on Transboundary Air Pollution , p. 239. ‘

’

‘

’

‘

’

364 365 366 367 368 370

‘

’

–

‘

’

391

Protection of the Marine Environment

(e) Commentary The legal instruments preventing pollution in the marine Arctic have been developed only in a piecemeal fashion. Given that multiple sources of pollution in the marine Arctic need different ways of regulation, it appears dif

ficult if not impossible to set out one comprehen-

sive legal framework for protecting the marine Arctic. In promoting environmental protection of the marine Arctic, to obtain credible scienti

fic data concerning pollution is of critical

importance. In light of the highly complex nature of the ocean, however, no State would be able to clarify the nature of the marine Arctic alone. Since the sound scienti

fic understand-

ing of the marine environment is a prerequisite to protecting the environment of the marine Arctic, it is crucial to promote marine scienti

fic

371

research in the Arctic region.

In this

connection, it is noteworthy that the Agreement on Enhancing International Arctic Scienti

fic

Cooperation was adopted under the auspices of the Arctic Council in May 2017.

Speci

fically,

the Agreement places obligations upon the Parties to facilitate access to

research infrastructure and facilities, scienti

373

research areas including marine areas

fic information in connection with Scientific Activities.

facilitate

372

375

374

and

While the ‘obligation to

access’ is at the heart of the Agreement, it does not oblige the Parties to allow

access in international law.

10 THE IMPACTS OF CLIMATE CHANGE ON THE OCEANS

As the 2030 Agenda for Sustainable Development stated, ‘[c]limate change is one of the 376

greatest challenges of our time ’ .

At present, the impacts of climate change on the oceans

are becoming a matter of more pressing concern. Such impacts include: sea-level rise, coastal erosion, ocean acidi

fication, altered food web dynamics, shifting species distribu-

tions and reduced abundance of habitat-forming species, including corals.

377

In the context

of marine environmental protection, two issues in particular should be highlighted: the reduction of GHG emissions from international shipping, and ocean acidi

fication.

10.1 The Reduction of GHG Emissions from Shipping

Emissions of GHG from shipping are known to contribute to global warming. According to the IMO, for the period 2007– 2012, international shipping accounted for approximately 2.6 378

per cent of annual global carbon dioxide (CO2 ) emissions.

Even though shipping at

present appears to be comparatively less polluting than other modes of transport, an IMO

371 372

See Chapter 10, section 5 of this book. This is the third binding agreement negotiated under the auspices of the Council. The text of the Agreement is available at: https://oaarchive.arctic-council.org/handle/11374/1916. The Parties to the Agreement are: Canada, Denmark, Finland, Iceland, Norway, the Russian Federation, Sweden and the United States.

373 376 377

Article 5.

Article 6.

375

Article 7.

The 2030 Agenda for Sustainable Development, p. 5, para. 14. O. Hoegh-Guldberg and J. F. Bruno, ‘The Impact of Climate Change on the World’s Marine Ecosystems’

Science, p. 1523. Third IMO GHG Study 2014 (2015), p. 1.

(2010) 328 378

374

IMO,

392 Protection of Community Interests at Sea study in 2014 estimated that, depending on future economic and energy developments, CO2 emissions from international shipping could grow by 50 to 250 per cent in the period to 2050.

379

As declared in the Preamble to the UN Framework Convention on Climate Change (UNFCCC)

380

and the Paris Agreement,

381

climate change is a ‘ common concern of man-

kind ’. Arguably, prevention of GHG emissions may be regarded as common interests of the international community as a whole or community interests. Given that climate change is a global issue, there appears to be a general sense that rules regulating GHG emissions from international shipping are to be developed through the global forum, i.e. the IMO. The IMO started working on the reduction of GHG emissions from shipping in 1997, and amendments to the Annex VI of the MARPOL were adopted in 2011. Annex VI constituted the Protocol was adopted.

383

The amended

first legally binding climate change instrument since the Kyoto Through the amendments, two new mandatory measures were

included in Annex VI: the Energy Ef Ef

382

ficiency

ficiency Management Plan (SEEMP).

Design Index (EEDI) and the Ship Energy

384

The EEDI is the technical measure that aims to promote the use of more energy-ef and less polluting equipment and energies. It requires a minimum energy ef

ficient

ficiency level

per capacity mile (e.g. ton mile) for different ship type and size segments. It is mandatory for seven types of new ship of 400 gross tonnage and above, namely, bulk carriers, gas carriers, tankers, container ships, general cargo ships, refrigerated cargo ships and combin385

ation carriers.

The scope of the EEDI has since been extended to: LNG carriers, vehicle

carriers, ro-ro cargo ships, ro-ro passenger ships and cruise passenger ships having nonconventional propulsion.

386

As a consequence, ship types responsible for approximately

85 per cent of the CO2 emissions from international shipping are incorporated under the international regulatory regime.

379 381

Ibid., pp. 4 and 20.

380

387

In principle, however, the EEDI only applies to newly

Entered into force 21 March 1994. Text in: (1992) 31 ILM , p. 849.

Entered into force 4 November 2016. The electronic text of the Paris Agreement is available at: http:// unfccc.int/paris_agreement/items/9485.php.

382

IMO, Resolution MEPC.203(62), Amendments to the Annex of the Protocol of the 1997 to Amend the International Convention for the Prevention of Pollution from Ships, 1973, as Modi

fied by the Protocol of

1978 Relating Thereto (15 July 2011). The amendments entered into force 1 January 2013. For a detailed

field, see Y. Shi,

analysis of the role of the IMO in this

‘The Challenge of Reducing Greenhouse Gas

Emissions from International Shipping: Assessing the International Maritime Organization’s Regulatory Response ’ (2012) 13 Yearbook of International Environmental Law , p. 131. 383

fi ciency Measures, found at: www.imo.org/en/OurWork/Environment/PollutionPrevention/

IMO, Energy Ef

AirPollution/Pages/Technical-and-Operational-Measures.aspx. 384

ficiency Design Index and the Ship Energy ficiency Management Plan, see Shi, The Challenge of Reducing Greenhouse Gas Emissions , pp. 145 150; IMO, Energy Effi ciency Measures; M. S. Karim, Prevention of Pollution of the Marine Environment from See Resolution MEPC.203(62). For an outline of the Energy Ef Ef

‘

’

–

Vessels: The Potential and Limits of the International Maritime Organisation (Heidelberg, Springer, 2015), pp. 109 –113. 385 386

Regulations 19(1) and 21, Tables 1 and 2 of Annex VI. See also Regulation 2.3. Resolution MEPC.251(66), Amendments to the Annex of the Protocol of 1997 to Amend the International Convention for the Prevention of Pollution from Ships, 1973, as Modi

fied by the Protocol of 1978 Relating

Thereto (4 April 2014). See also J. Harrison, ‘Pollution of the Marine Environment From or Through the Atmosphere’, in IMLI Manual , vol. III, pp. 183–184. 387

See IMO, Energy Ef

ficiency Measures.

393 Protection of the Marine Environment constructed ships and not to existing ships. The restricted scope of application would arguably undermine the effectiveness of the EEDI. ef

388

The EEDI requires a minimum energy

ficiency level per capacity mile (e.g. ton mile) for different ship type and size segments.

Notably, the EEDI is progressively strengthened over time. Following a two-year grace period, the CO2 reduction level (grams of CO2 ) for the

first

phase (1 January 2015 – 31

December 2019) is set at 10 per cent; for the second phase (1 January 2020– 31 December 2024), the reduction level is set at 20 per cent. In the third phase, from 1 January 2025 onwards, the reduction level is set at 30 per cent from a reference line representing the average ef

ficiency for ships built between 2000 and 2010.

389

The choice of technologies to

use to achieve the reduction is left to the shipping industry. The SEEMP is an operation measure that establishes a mechanism to improve the energy

ficiency of a ship in a cost-effective manner and applies to all ships of 400 gross tonnage It seeks to provide a possible approach for monitoring ship and fleet ef ficiency performance over time and some options to be considered when seeking to ef

and above.

390

‘

optimize the performance of the ship ’.

391

Under Regulation 22(1) of Annex VI of the

MARPOL, each ship is required to keep on board a ship-speci

fic

SEEMP. However, the

normative effect of the SEEMP is limited because it lacks regulatory requirements for target 392

setting as well as standards for the content of the plan.

In 2017, the IMO’ s Marine Environment Protection Committee (MEPC) adopted a mandatory system for data collection of fuel consumption as an amendment to Chapter 4 of MARPOL Annex VI. Under the system, ships of 5,000 gross tonnage and above will be required to collect, inter alia, consumption data for each type of fuel oil they use. The

flag State after the end of each calendar year and the flag State is to issue a Statement of Compliance to the ship. Subsequently flag States are aggregated data is to be reported to the

to transfer this data to the IMO Ship Fuel Consumption Database. The mandatory data collection system is linked to the IMO ’ s three-step approach that consists of three phases, i.e., data collection (phase 1), data analysis (phase 2) and policy decisions (phase 3).

393

Furthermore, the MEPC adopted the ‘Initial IMO Strategy on Reduction of GHG Emissions 394

from Ships ’ in April 2018.

The Strategy aims to reduce total annual GHG emissions by at

least 50 per cent by 2050 compared to 2008, and to reduce CO 2 emissions per transport

388 389 390 391

Shi, ‘The Challenge of Reducing Greenhouse Gas Emissions’, p. 152. See Resolution MEPC.203(62), pp. 11– 12, Table 1. Shi, ‘The Challenge of Reducing Greenhouse Gas Emissions’, p. 149; Regulations 19 and 22 of Annex VI.

fi ciency Management

Resolution MEPC.213(63), 2012 Guidelines for the Development of a Ship Energy Ef Plan (SEEMP), adopted 2 March 2012, Document MEPC 63/23, Annex 9, para. 1.2.

392

Z. Bazari and T. Longva,

Shipping

Assessment of IMO Mandated Energy Efficiency Measures for International

(IMO Doc. MEPC 63/INF.2, 31 October 2011), p. 7; H. Ringbom, ‘Vessel-Source Pollution’, in

Rayfuse (ed.),

Research Handbook on International Marine Environmental Law

, p. 117. See also Harrison,

‘Pollution of the Marine Environment’, p. 183. 393

Marine Environment Protection Committee (MEPC), 70th session, 24 –28 October 2016, available at: www.imo.org/en/MediaCentre/MeetingSummaries/MEPC/Pages/MEPC-70th-session.aspx; IMO Brie 28/2016, available at: http://www.imo.org/en/MediaCentre/PressBrie

fings/Pages/28-MEPC-data-

collection –.aspx. 394

Resolution MEPC.304(72), 13 April 2018, available at: www.imo.org/en/OurWork/Environment/ PollutionPrevention/AirPollution/Pages/GHG-Emissions.aspx.

fing:

394

Protection of Community Interests at Sea work, as an average across international shipping, by at least 40 per cent by 2030, pursuing efforts towards 70 per cent by 2050 compared to 2008 levels.

395

To this end, the Strategy 396

enumerates a wide range of short-, mid- and long-term measures.

This is an initial

strategy and a Revised IMO Strategy on the reduction of GHG emissions from ships is to be adopted in 2023.

10.2 Ocean Acidi

397

fi

cation

(a) General Considerations The ocean is known to function as a signi

ficant

carbon reservoir, drawing down carbon

dioxide from the atmosphere. According to one study, the oceans have taken up about 398

40 per cent of the anthropogenic carbon dioxide emissions over the past 200 years.

This

huge absorption of carbon dioxide changes the chemistry of the ocean, decreasing its pH and making it more acidic.

399

While precise effects of acidi

are growing concerns that ocean acidi isms, including corals, since the in

fication affects many marine ecosystems and organ-

flux

of carbon dioxide decreases the availability of

carbonate ions which are necessary for marine calci etons.

400

fication are hard to predict, there

fiers

to build their shells and skel-

In this connection, the UN General Assembly Resolution of 2017 expressed

concern that: ‘ [C]limate change continues to increase the severity and incidence of coral bleaching throughout tropical seas and weakens the ability of reefs to withstand ocean acidi

fication, which could have serious and irreversible negative effects on marine organ-

isms, particularly corals.’

401

Thus the 2030 Agenda for Sustainable Development high-

lighted the need to minimise and address the impacts of ocean acidi there is no global treaty on the subject of ocean acidi

fication.

402

To date,

fication. Accordingly, this issue is to be

addressed by multiple environmental treaties. Treaties relating to the prevention of ocean acidi

fication

can be broadly divided into

three categories: (i) treaties combating climate change, i.e. the UNFCCC and Paris Agreement, (ii) treaties governing marine environmental protection, such as the LOSC, the 1972 London Dumping Convention and its 1996 Protocol, and MARPOL, and (iii) treaties concerning conservation of biological diversity, including the 1992 Convention on Biological Diversity (the Rio Convention). If each treaty group is called a ‘ regime’, it can be said that ocean acidi

fication

is addressed by three distinct regimes, namely, climate change

regime, marine environmental protection regime and biological diversity regime.

395 398

Ibid., para. 3.1.

396

Ibid., para. 4.

397

Ibid., para. 7.

R. E. Zeeb, J. C. Zachos, K. Calderia and T. Tyrrell, ‘Carbon Emissions and Acidi

fi cation

’ (2008) 321 Science,

p. 51. 399

fication Unprecedented, Unsettling ’ (2010) 328 Science, pp. 1500 –1501; Ocean fication: Summary for Policy Makers, Third Symposium on the Ocean in a High-CO2 World, available

R. A. Kerr, ‘Ocean Acidi Acidi

at: www.igbp.net/download/18.30566fc6142425d6c91140a/1385975160621/OA_spm2-FULL-lorez.pdf. 400

fi cation

O. Hoegh-Guldberg et al., ‘Coral Reefs under Rapid Climate Change and Ocean Acidi

’ (2007) 318

Science, p. 1737. 401

UN General Assembly Resolution, Oceans and the Law of the Sea, 5 December 2017, A/RES/72/73, Preamble.

402

Paragraph 14.3.

395 Protection of the Marine Environment (b) Climate Change Regime Given that reduction of carbon dioxide emissions can be considered as the most obvious

fication, the climate change regime appears combating ocean acidi fication. However, the

and effective measure for mitigating ocean acidi to

be

the

most

finition of

de

relevant

framework

for

‘ climate change’ under Article 1(2) of the UNFCCC does not embrace chemical

fication fit into the definition of adverse effects under the Convention since it is not included in the de finition of climate

changes of the oceans. Nor does ocean acidi of climate change ’ 403

change ’ .

‘

‘

It would seem to follow that principles set out in Article 3 of the UNFCCC to

address climate change and its adverse effects do not apply to ocean acidi

fication.

Under Article 4(1)(d) of the UNFCCC, all parties are obliged to ‘ promote and cooperate in the conservation and enhancement, as appropriate, of sinks and reservoirs of all greenhouse gases not controlled by the Montreal Protocol ’ , including oceans. This provision can be read as encouraging the active sequestration of carbon dioxide into the oceans.

404

However, it would not seem appropriate to encourage actions that lead to

increased ocean acidi

fication.

On 12 December 2015, the Paris Agreement was adopted in the twenty405

UNFCCC.

first COP of the

This is a new agreement to address climate change after the Kyoto Protocol.

The Paris Agreement aims to strengthen the global response to the threat of climate change by holding the increase in the global average temperature to well below 2

±

Celsius above

pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5 sius.

406

±

Cel-

To this end, Article 3 of the Paris Agreement requires that as nationally determined

contributions to the global response to climate change, all Parties are to undertake and communicate ambitious efforts as provided in relevant provisions of the Agreement. It is beyond serious argument that the Paris Agreement provides the key instrument to combat climate change. As the de

finition

contained in Article 1 of the UNFCCC applies for the

purpose of the Paris Agreement, however, chemical changes of the oceans, including ocean acidi

403

fication, would fall outside the scope of the Paris Agreement.

Under Article 1(2), climate change means ‘a change of climate which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and which is in addition to natural climate variability observed over comparable time periods’. ‘Adverse effects of climate change’ means ‘changes in the physical environment or biota resulting from climate change’ under Article 1(1) of the Kyoto

Protocol. 404

405

International Law in the Era of Climate Change (Cheltenham, Edward Elgar, 2012), pp. 164–165; R. Baird, M. Simons and T. Stephens, ‘Ocean Acidi fication: A Litmus Test for International Law’ (2009) 4 Carbon and Climate Law Review, p. 464. See also The SCOR/IOC Symposium Planning Committee, ‘The Ocean in a High-CO2 World ’ (2004) 17 Oceanography, pp. 72 et seq. R. Rayfuse, ‘Climate Change and the Law of the Sea’, in R. Rayfuse and S. V. Scott (eds.),

For an overview of the Paris Agreement, see, for instance, L. Rajamani, ‘Ambition and Differentiation in the 2015 Paris Agreement: Interpretative Possibilities and Underlying Politics ’ (2016) 65

ICLQ, pp. 493 –514; S.

Maljean-Dubois, ‘The Paris Agreement: A New Step in the Gradual Evolution of Differential Treatment in

RECIEL, pp. 151– 160; D. Bodansky, ‘The Legal Character of the Paris RECIEL, pp. 142–150.

the Climate Regime? ’ (2016) 25 Agreement ’ (2016) 25 406

Article 2(1)(a) of the Paris Agreement.

396 Protection of Community Interests at Sea (c) Marine Environmental Protection Regime It appears that anthropogenic carbon dioxide can be considered as substances that are introduced into the marine environment under Article 1(1) – (4) of the LOSC. On that basis, anthropogenic carbon dioxide emissions would fall within the scope of marine pollution in the LOSC.

407

Further, Article 194(1) of the LOSC requires States to take all measures to

prevent pollution of the marine environment from ‘ any sources’. Under Article 194(3), these measures include those designed to minimise ‘ (a) the release of toxic, harmful or noxious substances, especially those which are persistent, from land-based sources, from or through the atmosphere or by dumping’ (emphasis added). It appears reasonable to argue that this provision covers carbon dioxide emissions resulting in ocean acidi

fication.

408

Under Article 212(1) of the LOSC, States are obliged to adopt laws and regulations to prevent, reduce and control pollution of the marine environment from or through the atmosphere, applicable to the air space under their sovereignty and to vessels

flying their

flag or vessels or aircraft of their registry. States are also under obligation to enforce their laws and regulations on this matter pursuant to Article 222 of the LOSC. Article 194(5) concerning protection of rare or fragile ecosystems may also be relevant to the issue of ocean acidi

fication. However, these provisions contain no specific standard to control the

introduction of anthropogenic carbon dioxide into the oceans. Nor does the LOSC provide any measures to be taken in combating ocean acidi

fication.

409

The 1972 London Dumping Convention and its Protocol of 1996 are relevant in so far as they prevent the dumping of carbon dioxide into the marine environment.

410

Although, as

noted, the amendments to Annex VI of MARPOL regulating GHG emissions from shipping can be regarded as a signi

ficant

development, their role seems to remain limited since

carbon dioxide emissions from shipping are comparatively small. All in all, the marine environmental protection regime addresses ocean acidi

fication only in a limited manner.

(d) Biological Diversity Regime In recent years, ocean acidi

fication has been discussed within the Rio Convention. In 2010, the

COP of the Rio Convention adopted the ‘ Strategic Plan for Biodiversity 2011 –2020’ , including twenty headline targets for 2015 or 2020, called the ‘Aichi Biodiversity Targets ’. Target 10 states:

By 2015, the multiple anthropogenic pressures on coral reefs, and other vulnerable ecosystems

fication are minimised, so as to maintain their

impacted by climate change or ocean acidi integrity and functioning ’.

407

411

fi cation Necessary?

R. E. Kim, ‘Is a New Multilateral Environmental Agreement on Ocean Acidi

’ (2012) 21

RECIEL, pp. 243– 258, p. 247. 408

A. Boyle, ‘Law of the Sea Perspectives on Climate Change’, in D. Freestone (ed.), The 1982 Law of the Sea Convention at 30: Successes, Challenges and New Agendas (Leiden, Brill/Nijhoff, 2013), p. 158; Harrison, Saving the Oceans, p. 255.

409 411

Ibid., pp. 247– 248.

410

Baird, Simons and Stephens, ‘Ocean Acidi

fication , p. 465. ’

UNEP/CBD/DEC/X/2, 29 October 2010, p. 9. See also, Kim, ‘New Multilateral Environmental Agreement ’, p. 248.

397 Protection of the Marine Environment Yet the meaning of the term ‘ minimise’ remains less clear. In 2012, the COP adopted a list of Ecologically or Biologically Signi

ficant Marine Areas. Notably, the

fic

‘ Western South Paci

high aragonite saturation state zone ’ was included in the list because this area has special biological and ecological value as one where the impact from ocean acidi slowest and where recovery may potentially be the quickest.

fication will be

412

fication is also being discussed at the regional level. For example, the AMAP

Ocean acidi

recommended that the Arctic Council: (i) urge its Member States, Observer countries and the global society to reduce the emission of carbon dioxide as a matter of urgency, (ii) call for enhanced research and monitoring efforts that expand understanding of the acidi

fication

process, and (iii) urge its Member States to implement adoption strategies that address all aspects of Arctic change including ocean acidi acidi

fication.

413

In addition, the impacts of ocean

fication on krill biology have been discussed by the Scientific Committee of CCAMLR.

414

(e) Evaluation Based on the above cursory survey, three observations can be made. First, the focus of these three regimes relating to ocean acidi

fication differs considerably. While the climate change

regime has essentially an atmospheric focus, the marine environmental protection regime has understandably an oceanic focus. The biological diversity regime focuses on conservation of marine species and ecosystems. Presently there is no clear linkage between these regimes and positive coordination between these regimes will be needed. Second, since scienti

fic

knowledge on the precise impacts of ocean acidi

fication

on

marine ecosystems and organisms remains limited, further research is needed. In this regard, IAEA’ s launch of the Ocean Acidi

fication International Coordination Centre (OA-

ICC) in 2012 was welcomed. This project seeks to communicate, promote and facilitate a series of over-arching activities in science, capacity-building and communication intended to serve the scienti

fic community and scientific users, including policy makers, the general

public and the media.

415

Third, the effects of ocean acidi

fication

differ according to regions. For instance, the

fication. While particularly vulnerable regions need special measures for combating ocean acidi fication, the root cause marine Arctic is said to be particularly vulnerable to acidi

416

of the problem, i.e. carbon dioxide emissions, must be addressed at the global level. Ocean acidi

fication gives rise to the difficult question of how it is possible to respond to this global

problem at a regional level.

412

XI/17, Marine and Coastal Biodiversity: Ecologically or Biologically Signi

ficant Marine Areas, UNEP/CBD/

COP/DEC/XI/17, 5 December 2012, p. 16, Table 1. 413

AMAP, Arctic Ocean Acidi

fication Assessment: Summary for Policymakers, Oslo, 2013, available at: fication-assessment-summary-for-policy-makers/

www.amap.no/documents/doc/amap-arctic-ocean-acidi 808. 414

See for instance, Report of the Thirty-First Meeting of the Scienti

fi c Committee for the Conservation of

Antarctic Marine Living Resources, 22–26 October 2012, SC-CAMLR-XXXI pp. 182 –183, paras. 2.50–2.57. 415 416

See www.iaea.org/services/oa-icc. See AMAP, Arctic Ocean Acidi

fication Assessment; Kerr, ‘Ocean Acidifi cation’, p. 1501.

398 Protection of Community Interests at Sea

11 CONCLUSIONS While the protection of the marine environment is a comparatively new subject in the history of the law of the sea, it increasingly occupies a crucial place in the law. The matters considered in this chapter allow the following conclusions. (i) The LOSC represents a paradigm shift from the principle of freedom to pollute to an obligation to prevent pollution. In fact, the LOSC established a general and comprehensive legal framework for the regulation of marine pollution. It is argued that the controlling principle was changed from the discretion of States to their duty to protect the marine environment. In broad terms, it can be observed that the international law of the sea is increasingly strengthening its environmental dimension by limiting the margin of discretion of States in the regulation of marine pollution. (ii) Land-based pollution is the most serious source of marine pollution. Nevertheless, the global legal framework for the regulation of land-based marine pollution remains a weak one. The reasons for this include: • reluctance to restrict economic and industrial activities, • complexity of sources, substances and actors involved in land-based marine pollution, • geographical and ecological divergences in the oceans, • limited capability of developing countries.

(iii) As a consequence, land-based marine pollution is regulated primarily by regional treaties. It is notable that new approaches and techniques are increasingly enshrined in these treaties with a view to tightening the regulation of land-based pollution. Such approaches and techniques include: • the replacement of the black/grey list approach by the uniform approach, • the precautionary approach, • environmental impact assessment, and • international control for ensuring compliance with relevant rules.

However, it must be noted that the development of regional treaties is not uniform, and the normative strength of the regulation also varies according to these treaties. (iv) The

flag

State has primary responsibility for regulating vessel-source pollution.

Nonetheless, compliance with relevant rules of international law on this matter cannot be effectively ensured by the

flag State alone. Thus, under the LOSC, the coastal State and port

State may also exercise jurisdiction to regulate vessel-source pollution. In particular, the port State jurisdiction set out in Article 218 of the LOSC is innovative in the sense that the port State is entitled to take enforcement action against the vessel even where a violation was committed on the high seas or marine spaces under other States ’ jurisdiction, regardless of direct damage to the port State. To some extent, port State control also provides a useful means to ensure compliance with relevant rules regulating vessel-source pollution. It can be said that the port State assumes the role of an advocate for the international community in marine environmental protection. (v)

Ensuring

necessitates

compliance

more

with

treaties

institutionalised

concerning

procedures,

marine

without

environmental

relying

on

the

protection

principle

of

399 Protection of the Marine Environment

first is international field tend to set out mechanisms for

reciprocity. In this regard, three mechanisms merit highlighting. The supervision. It is noteworthy here that treaties in this

international supervision, such as a reporting system and supervision by a treaty commission. The second is port State jurisdiction and port State control. They provide an interesting example of marine environmental protection on the basis of the law of dédoublement fonctionnel. The third mechanism involves marine environmental protection through an international organisation. In this regard, it is of particular interest to note that the Authority is empowered to exercise prescriptive and enforcement jurisdiction over the environmental

protection

of

the

Area.

Examination

of

the

practice

of

the

Authority

provides a useful insight into the protection of community interests with regard to marine environmental protection through an international organisation.

FURTHER READING 1 General D. J. Attard, M. Fitzmaurice, N. A. Martínez Gutiérrez and R. Hamza (eds.), IMLI Manual, vol. III. P. Birnie, A. Boyle and C. Redgwell, International Law and the Environment, 3rd edn (Oxford University Press, 2009), Chapters 7 and 8. J. Harrison, Saving the Oceans through Law: The International Legal Framework for the Protection of the Marine Environment (Oxford University Press, 2017). A. Kirchner (ed.), International Marine Environmental Law: Institutions, Implementation and Innovations (The Hague, Kluwer, 2003). N. Oral, Regional Co-operation and Protection of the Marine Environment under International Law: The Black Sea (Leiden, Brill/Nijhoff, 2013). R. Rayfuse (ed.), Research Handbook on International Marine Environmental Law (Cheltenham, Edward Elgar, 2015). C. Redgwell, ‘ From Permission to Prohibition: The 1982 Convention on the Law of the Sea and Protection of the Marine Environment’, in D. Freestone, R. Barnes and D. Ong (eds.), The Law of the Sea: Progress and Prospects (Oxford University Press, 2006), pp. 180–191. P. Sands and J. Peel with A. Fabra and R. MacKenzie, Principles of International Environmental Law, 3rd edn(Cambridge University Press, 2012), Chapters 9 and 13. R. Warner, Protecting the Oceans beyond National Jurisdiction: Strengthening the International Law Framework (Leiden, Brill/Nijhoff, 2009).

2 Land-Based Marine Pollution D. Hassan, Protecting the Marine Environment from Land-Based Sources of Pollution: Towards Effective International Cooperation (Farnham, Ashgate, 2006). Y. Tanaka, ‘Regulation of Land-Based Marine Pollution’ , in IMLI Manual, vol. III, pp. 139–168. D. L. VanderZwaag and A. Powers, ‘ The Protection of the Marine Environment from Land-Based Pollution and Activities: Gauging the Tides of Global and Regional Governance ’ (2008) 23 IJMCL, pp. 423 –452. S. Vinogradov, ‘Marine Pollution via Transboundary Watercourses: An Interface of the “ Shoreline” and “ River-Basin” Regimes in the Wider Black Sea Region’ (2007) 22 IJMCL, pp. 585 –620.

400 Protection of Community Interests at Sea

3 Vessel-Source Marine Pollution M. Fitzmaurice, ‘The International Convention for the Prevention of Pollution from Ships (MARPOL)’, in IMLI Manual, vol. III, pp. 33–77. E. Franckx and A. Pauwels (eds.), Vessel-Source Pollution and Coastal State Jurisdiction in the South-Eastern Baltic Sea (Antwerp, Maklu, 2006). V. Frank, ‘Consequences of the Prestige Sinking for European and International Law ’ (2005) 20 IJMCL, pp. 1 –64. Ho-Sam Bang, ‘ Is Port State Control an Effective Means to Combat Vessel-Source Pollution? An Empirical Survey of the Practical Exercise by Port States of their Powers of Control’ (2008) 23 IJMCL, pp. 715 –759. ‘Port State Jurisdiction and Article 218 of the UN Convention on the Law of the Sea ’ (2009) 40

Journal of Maritime Law and Commerce, pp. 291–313. M. S. Karim, Prevention of Pollution of the Marine Environment from Vessels: The Potential and Limits of the International Maritime Organisation (Heidelberg, Springer, 2015). B. Marten, Port State Jurisdiction and the Regulation of International Merchant Shipping (Berlin, Springer, 2014). ‘Port State Jurisdiction, International Conventions and Extraterritoriality: An Expansive

Interpretation ’, in H. Ringbom (ed.), Jurisdiction Over Ships: Post-UNCLOS Developments in the Law of the Sea (Leiden, Brill/Nijhoff, 2015), pp. 105 –139. E. J. Molennar, Coastal State Jurisdiction over Vessel-Source Pollution (The Hague, Kluwer, 1998). ‘Port State Jurisdiction: Toward Comprehensive, Mandatory and Global Coverage ’ (2007) 28

ODIL, pp. 225 –257. A. K.-J. Tan, Vessel-Source Marine Pollution (Cambridge University Press, 2006).

4 Dumping H. Esmaeili and B. Grigg, ‘Pollution from Dumping’ , in IMLI Manual, vol. III, pp. 78–94. International Maritime Organisation, Guidelines on the Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter, 1972 (London, IMO, 2006). M. Mackintosh, ‘ The Development of International Law in Relation to the Dumping and Disposal of Radioactive Waste at Sea ’ (2003) 9 Journal of International Maritime Law , pp. 354–368. E. J. Molennar, ‘The 1996 Protocol to the 1972 London Convention ’ (1997) 12 IJMCL, pp. 396–403. A. Sielen, ‘The New International Rules on Ocean Dumping: Promise and Performance’ (2009) 21 Georgetown International Law Review, pp. 295 –336; pp. 495 –540. S. Trevisanut, ‘The Compliance Procedures and Mechanisms of the 1996 Protocol to the 1972 London Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter ’, in T. Treves (ed.), Non-compliance Procedures and Mechanisms and the Effectiveness of International Environmental Agreements (The Hague, T.M.C. Asser Press, 2009), pp. 49–61. D. L. VanderZwaag and A. Daniel, ‘ International Law and Ocean Dumping: Steering a

fi nished

Precautionary Course Aboard the 1996 London Protocol, but still an Un

Voyage ’, in A. Chircop, T. L. McDorman and S. J. Rolston (eds.), The Future of Ocean Regime-Building: Essays in Tribute to Douglas M. Johnston (Leiden, Brill/Nijhoff, 2009), pp. 515–550.

401 Protection of the Marine Environment

5 Pollution from Seabed Activities A. L. Jaeckel, The International Seabed Authority and the Precautionary Principle: Balancing Deep Seabed Mineral Mining and Marine Environmental Protection (Leiden, Brill/Nijhoff, 2017). ‘An Environmental Management Strategy for the International Seabed Authority? The Legal

Basis’ (2015) 30 IJMCL, pp. 93 –119. R. Pereira, ‘ Pollution from Seabed Activities’, in IMLI Manual, vol. III, pp. 95–138. T. Scovazzi, ‘The Exploitation of Resources of the Deep Seabed and the Protection of the Environment ’ (2014) 57 GYIL, pp. 181 –207.

6 Liability and Compensation L. A. De La Fayette, ‘ Compensation for Environmental Damage in Maritime Liability Regimes’, in A. Kirchner (ed.), International Marine Environmental Law: Institutions, Implementation and Innovations (The Hague, Kluwer, 2003), pp. 231–265. D. M. Gunasekera, Civil Liability for Bunker Oil Pollution Damage (Frankfurt, Peter Lang, 2010). M. Jacobsson, ‘Liability and Compensation for Ship-Source Pollution’, in IMLI Manual, vol. III, pp. 285–342. José Juste-Ruíz, ‘Compensation for Pollution Damage Caused by Oil Tanker Accidents: From “ Erica” to “ Prestige”’(2010) 1 Aegean Review of the Law of the Sea and Maritime Law,

pp. 37–60. N. A. Martínez Gutiérrez, Limitation of Liability in International Maritime Conventions: The Relationship between Global Limitation Conventions and Particular Liability Regimes (New York, Routledge, 2011). T. A. Mensah, ‘Civil Liability and Compensation for Vessel-Source Pollution of the Marine Environment and the United Nations Convention on the Law of the Sea (1982)’, in N. Ando, E. W. MacWhinney and R. Wolfrum (eds.), Liber Amicorum Judge Shigeru Oda, vol. 2 (The Hague, Kluwer, 2002), pp. 1391–1434. I. Zovko, ‘The International Liability and Compensation Regimes Relating to Vessel-Sourced Pollution of the Marine Environment: Case Study of the Southern Ocean’ (2005) 2 New Zealand Yearbook of International Law, pp. 281 –326.

7 Arctic There is extensive literature on the Arctic. Thus, only principal monographs on this subject are suggested here. M. Byers (with J. Baker), International Law and the Arctic (Cambridge University Press, 2013). L. P. Hildebrand, L. W. Brigham and T. M. Johasson (eds.), Sustainable Shipping in a Changing Arctic (Berlin, Springer, 2018). L. C. Jensen and G. Hønneland (eds.), Handbook of the Politics of the Arctic (Cheltenham, Edward Elgar, 2015). R. L. Johnstone, Offshore Oil and Gas Development in the Arctic under International Law: Risk and Responsibility (Leiden and Boston, Brill/Nijhoff, 2015). S. Lalonde and T. L. McDorman (eds.), International Law and Politics of the Arctic Ocean: Essays in Honor of Donat Pharand (Leiden, Brill/Nijhoff, 2015). E. J. Molenaar, Alex G. Oude Elferink and D. R. Rothwell (eds.), The Law of the Sea and the Polar Regions: Interactions between Global and Regional Regimes (Leiden, Brill/Nijhoff, 2013).

402 Protection of Community Interests at Sea M. H. Nordquist, T. H. Heider and J. N. Moore (eds.), Changes in the Arctic Environment and the Law of the Sea (Leiden, Brill/Nijhoff, 2010). M. H. Nordquist, J. N. Moore, and R. Long (eds.), Challenges of the Changing Arctic: Continental Shelf, Navigation and Fisheries (Leiden, Brill/Nijhoff, 2016). R. Pincus and S. H. Ali, Diplomacy on Ice: Energy and the Environment in the Arctic and Antarctic (New Haven, Yale University Press, 2015). R. C. Powell and K. Dodds (eds.), Polar Geopolitics? Knowledges, Resources and Legal Regimes (Cheltenham, Edward Elgar, 2014). D. R. Rothwell, ‘Arctic Ocean Shipping: Navigation, Security and Sovereignty in the North American Arctic ’ (2017) 1 Brill Research Perspective in the Law of the Sea, pp. 1 –88. K. Schönfeldt, The Arctic in International Law and Policy (Oxford, Hart Publishing, 2017). T. Stephens and D. L. VanderZwaag (eds.), Polar Oceans Governance in an Era of Environmental Change (Cheltenham, Edward Elgar Publishing, 2014).

ę

ń

A. St pie , T. Koivurova and P. Kankaanpää (eds.), The Changing Arctic and the European Union (Leiden, Brill/Nijhoff, 2015). E. Tedsen, S. Cavalieri and R. A. Kraemer (eds.), Arctic Marine Governance: Opportunities for Transatlantic Cooperation (Berlin, Springer, 2014). G. Witschel, I. Winkelmann, K. Tiroch and R. Wolfrum (eds.), New Chances and New Responsibilities in the Arctic Region (Berlin, Berliner Wissenschafts-Verlag, 2010). See also The Yearbook of Polar Law and Arctic Yearbook.

8 The Impacts of Climate Change on the Oceans R. S. Abate (ed.), Climate Change Impacts on Ocean and Coastal Law: U.S. and International Perspectives (Oxford University Press, 2015). A. Boyle, ‘Law of the Sea Perspectives on Climate Change ’, in D. Freestone (ed.), The 1982 Law of the Sea Convention at 30: Successes, Challenges and New Agendas (Leiden, Brill/Nijhoff, 2013), pp. 157– 164. D. D. Caron, ‘ Climate Change and the Ocean’, in H. N. Scheiber and Jin-Hyun Paik (eds.), Regions, Institutions, and Law of the Sea: Studies in Ocean Governance (Leiden, Brill/Nijhoff, 2013), pp. 515–537.

fication and Protection under International Law from Negative Effects:

Y. Downing, ‘ Ocean Acidi

A Burning Issue amongst a Sea of Regimes? ’ (2013) 2 Cambridge Journal of International and Comparative Law, pp. 242–273. K. Fennel and D. L. VanderZwaag, ‘ Ocean Acidi

fication: Scientific Surges, Lagging Law and Policy

Responses’ , in R. Warner and S. Kaye (eds.), Routledge Handbook of Maritime Regulation and Enforcement (London, Routledge, 2016), pp. 342–362. R. E. Kim, ‘Is a New Multilateral Environmental Agreement on Ocean Acidi

fication Necessary?

’

(2012) 21 RECIEL, pp. 243 –258. H.-J. Koch, D. König, J. Sanden and R. Verheyen (eds.), Legal Regimes for Environmental Protection: Governance for Climate Change and Ocean Resources (Leiden, Brill/Nijhoff, 2015). R. Rayfuse, ‘Climate Change and the Law of the Sea’, in R. Rayfuse and S. V. Scott (eds.), International Law in the Era of Climate Change (Cheltenham, Edward Elgar, 2012), pp. 147–174.

fi cation , in

T. Stephens, ‘Warning Waters and Souring Seas: Climate Change and Ocean Acidi Oxford Handbook, pp. 777 –798.

’

403 Protection of the Marine Environment Y. Tanaka, ‘Regulation of Greenhouse Gas Emissions from International Shipping and Jurisdiction of States’ (2016) 25 RECIEL , pp. 333 –346. H. van Asset, The Fragmentation of Global Climate Governance: Consequences and Management of

Regime Interactions (Cheltenham, Edward Elgar, 2014). Yubing Shi, Climate Change and International Shipping: The Regulatory Framework for the

Reduction of Greenhouse Gas Emissions (Leiden, Brill/Nijhoff, 2016). Yubing Shi and W. Gullet, ‘ International Regulation on Low-Carbon Shipping for Climate Change Mitigation: Development, Challenges, and Prospects ’ (2018) 49 ODIL, pp. 134–156.

9 Conservation of Marine Biological Diversity Main Issues Biological diversity, including marine biological diversity, is essential for human life. However, there are serious concerns that biological diversity on land and in the oceans is rapidly declining. Thus there is a strong need to establish legal frameworks for the conservation of marine biological diversity. In this regard, growing attention is being paid to the establishment of marine protected areas (MPAs). This chapter will explore emergent principles on this subject. In particular, the following issues will be examined:

(i) What are the principal approaches to conservation of marine biological diversity? (ii) What are the limits of the LOSC with regard to the conservation of marine biological diversity? (iii) What is the signi

ficance of, and the limitations associated with, the Convention on

Biological Diversity in the context of the conservation of marine biological diversity?

ficance of MPAs and what are their limitations?

(iv) What is the signi

(v) Is it possible to create MPAs on the high seas in positive international law?

1 INTRODUCTION Biological diversity means the variability of life in all its forms, levels and combinations.

1

Biological diversity is fundamental for human life because it provides essential services for the maintenance of the biosphere in a condition which supports human and other life. Furthermore, biological diversity has a considerable scienti

1

P. Birnie, A. Boyle and C. Redgwell,

fic

value because all living

International Law and the Environment (Oxford University Press, 2009),

p. 588. Article 2 of the Convention on Biological Diversity de among living organisms from all sources including,

fines

‘biological diversity’ as: ‘the variability

inter alia, terrestrial, marine and other aquatic

ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems’. Under Article 2 of the Convention, ‘ecosystem’ is de

fi ned as

‘a dynamic

complex of plant, animal and micro-organism communities and their non-living environment interacting as a functional unit’.

404

405 Conservation of Marine Biological Diversity species are genetic libraries which record evolutionary events on the earth. It may also be noted that biological diversity has its own ethical and aesthetic values.

2

Given its vital

importance for the survival of mankind, it could be said that conservation of (marine) biological diversity is considered as a community interest of the international community as a whole. Despite its vital importance, biological diversity is now rapidly declining in the world,

3

and marine biological diversity is no exception. According to a report of the millennium ecosystem assessment, roughly 20 per cent of the world’ s coral reefs were lost and an additional 20 per cent degraded in the last several decades of the twentieth century.

4

Marine

biological diversity is seriously damaged by human activities, including: overexploitation; impacts of extraction methods, such as bottom trawling; sedimentation arising from activities on adjacent land; physical changes to the marine environment, such as in

filling

of estuaries; water pollution; the impact of tourists and divers; climate change; alienspecies

invasions;

habitats.

subdivision

and

development

on

the

coast;

and

fragmentation

of

5

Among various threats, particular concern is currently raised with regard to the adverse impact of climate change on diversity. The oceans have a vital role in generating oxygen, absorbing carbon dioxide from the atmosphere, and regulating climate and temperature. In this regard, there are growing concerns that climate change can affect marine ecosystems in many ways, modifying ecosystem structure and functioning.

6

For instance, it is suggested

that coral reefs would be seriously damaged if sea surface temperatures were to increase by

±

7

more than 1 C above the seasonal maximum temperature.

fica-

The impacts of ocean acidi

tion on marine biological diversity are also a matter of concern. be

2

lost,

this

diversity

becomes

irreplaceable.

Modern

8

Should biological diversity

technology

cannot

reproduce

P. Sands, ‘International Law in the Field of Sustainable Development’ (1994) 65 BYIL, p. 333; M. Bowman, ‘The Nature, Development and Philosophical Foundations of the Biodiversity Concept in International Law’,

in C. Redgwell and M. Bowman (eds.), International Law and the Conservation of Biological Diversity (The Hague, Kluwer, 1996), pp. 15– 21. 3

According to IUCN, current extinction rates of threatened species are 50 to 500 times higher than extinction rates in the fossil record. J. E. M. Baillie, C. Hilton-Taylor and S. N. Stuart (eds.), 2004 IUCN Red List of Threatened Species. A Global Species Assessment (Gland, IUCN, 2004), p. xxi.

4

Ecosystems and Human Well-Being: Synthesis, A Report of the Millennium Ecosystem Assessment (Washington DC, Island Press, 2005), p. 26.

5

The Convention on Biological Diversity, Ad Hoc Technical Expert Group on Protected Areas, Report of the Ad Hoc Technical Expert Group on Marine and Coastal Protected Areas, UNEP/CBD/AHTEGPA/1/INF/5, 6 June 2003, pp. 7 –8, paras. 11– 12; United Nations, Report of the Secretary-General, Oceans and the Law of the Sea, A/59/62/Add.1, 18 August 2004, pp. 54–61, paras. 205–236.

6

Convention on Biological Diversity, SBSTTA, Biological Diversity and Climate Change, Report of the Ad Hoc Technical Expert Group on Biodiversity and Climate Change, UNEP/CBD/SBSTTA/9/INF12, 30 September 2003, pp. 27–43, paras. 37 –72.

7 8

Ibid., p. 37, para. 63. United Nations, Report of the Secretary-General, Oceans and the Law of the Sea Addendum, A/66/70/ Add. 1, 11 April 2011, p. 46, para. 194. See also Chapter 8, section 10.2 of this book.

406

Protection of Community Interests at Sea biological diversity arti

ficially.

9

Hence conservation of marine biological diversity deserves

serious consideration in the law of the sea.

10

2 PRINCIPAL APPROACHES TO CONSERVATION OF MARINE BIOLOGICAL DIVERSITY

2.1 General Considerations

Conservation of biological diversity has until recently attracted little attention in international law. In light of the paucity of State practice, customary international law contains few rules on this subject. Accordingly, rules respecting conservation of marine biological diversity should be sought primarily in treaties. It

was

only

after

World

War

II

that

conservation

of

biological

diversity

attracted

attention in the international community. The 1972 Stockholm Declaration marked a milestone towards the development of treaties focusing on conservation of biological diversity.

11

Principle 2 of the Declaration made the following important statement:

The natural resources of the earth including the air, water, land,

fl

ora and fauna and especially

fi

representative samples of natural ecosystems must be safeguarded for the bene

t of present

and future generations through careful planning or management, as appropriate.

Principle 4 further stated: ‘Man has a special responsibility to safeguard and wisely manage the heritage of wildlife and its habitat which are now gravely imperilled by a combination of adverse factors.’ These statements seem to make clear the raison d’être of international law in governing the conservation of biological diversity. Twenty years later, the UN Conference on Environment and Development adopted the Rio Declaration and Agenda 21. Agenda 21 highlighted: ‘Coastal States, with the support of international organizations, upon request, should undertake measures to maintain biological diversity and productivity of marine species and habitats under national jurisdiction ’ (paragraph 17.7). Agenda 21 thus required States ‘to identify marine ecosystems exhibiting high levels of biodiversity and productivity and other critical habitat areas and provide necessary limitations on use in these areas, through, inter alia, designation of protected areas ’ (paragraph 17.86). While the Rio Declaration and Agenda 21 are not binding, they can potentially guide the behaviour of States. At the same time, the UN Conference

9 10

adopted

the

Convention

on

Biological

Diversity

(hereinafter

the

Rio

Birnie et al., International Law and the Environment, p. 584. Generally on this subject, see Y. Tanaka, A Dual Approach to Ocean Governance: The Cases of Zonal and

Integrated Management in International Law of the Sea (Farnham, Ashgate, 2008), Chapters 4 and 5. This

fi cations.

chapter is based partly on the analysis made there, with modi 11

For the text of the Declaration, see P. W. Birnie and A. Boyle, Basic Documents on International Law and

Environment (Oxford University Press, 1995), p. 1.

407

Conservation of Marine Biological Diversity Convention).

12

first

This Convention is the

global treaty regarding conservation of bio-

logical diversity. The Rio Convention will be examined in section 3.2 of this chapter.

2.2 Three Approaches

While the LOSC is the key instrument for examining marine issues, it seems appropriate to give a brief overview of relevant instruments concerning the conservation of (marine) biological

diversity

before

the

adoption

of

the

LOSC.

In

this

regard,

three

principal

fied: (i) the regional approach, (ii) the species-specific approach, and (iii) the activity-speci fic approach. The regional approach seeks to conserve marine ecosystems in a speci fic marine space approaches can be identi

13

or a habitat. An illustrative example is the 1980 CCAMLR.

±

Antarctic marine living resources of the area south of 60

The CCAMLR applies to the south latitude and to these

resources of the area between that latitude and the Antarctic Convergence which form part of the Antarctic marine ecosystem.

14

Article II(3)(a) requires the Parties to prevent a

decrease in the size of any harvested population to levels below those which ensure its stable recruitment. Article II(3)(c) places a clear obligation on the Parties to prevent changes or minimise the risk of changes in the marine ecosystem which are not potentially reversible over two or three decades. The regional approach is important in the tailoring of rules that take speci

fic environmental and ecological elements in the particu-

lar region into account. The species-speci

fic

approach seeks to conserve a certain category of species. Several

treaties adopt this approach. One notable example is the 1979 Convention on the Conservation of Migratory Species of Wild Animals (CMS/Bonn Convention).

15

The Bonn Con-

vention aims to protect migratory species of wild animals that live within or pass through one or more national jurisdictional boundaries. Appendix I speci

fies

migratory species

which are endangered, while Appendix II lists migratory species which have an unfavourable conservation status and which require international agreements for their conservation and management.

16

With several exceptions, Parties that are Range States of a migratory

species listed in Appendix I shall prohibit the taking of animals belonging to such species by virtue of Article III(5). Concerning species listed in Appendix II, the Bonn Convention provides for two kinds of agreement, i.e. AGREEMENTS under Article IV(3) and agreements under Article IV(4).

12

(1992) 31

17

Under Article IV(3), Parties that are Range States of migratory species

ILM

, p. 818. Entered into force 29 December 1993. Generally on the Rio Convention, see M.-A.

Hermitte, ‘La convention sur la diversité biologique’ (1992) 38

AFDI

, pp. 844–870 ; R. Wolfrum and N. Mats,

‘The Interplay of the United Nations Convention on the Law of the Sea and the Convention on Biological

Diversity’ (2000) 4 13

p. 628. 14 15 17

Max Planck Yearbook of United Nations Law

, pp. 445–480.

Entered into force 7 April 1982. For the text of the Convention, see Birnie and Boyle,

Basic Documents

,

fined in Article II(4) of CCAMLR.

The scope of the Antarctic Convergence is de (1980) 19

ILM

, p. 15. Entered into force 1 November 1983.

16

Articles III and IV of the Bonn Convention.

Under Article 1(1)(j) of the Bonn Convention, ‘AGREEMENT’ refers to ‘an international agreement relating to the conservation of one or more migratory species as provided for in Articles IV and V of this Convention’. Under Article 1(1)(h), ‘Range State’ means any State ‘that exercises jurisdiction over any part of the range of

408 Protection of Community Interests at Sea listed in Appendix II shall endeavour to conclude AGREEMENTS where these would bene

fit

the species. These Parties are also encouraged to conclude agreements for any population or any geographically separate part of the population of any species or lower taxon of wild animals, members of which periodically cross one or more national jurisdictional boundaries in conformity with Article IV(4). The activity-speci the

survival

of

fic

approach focuses on the regulation of activities threatening

endangered

species.

A typical

example

may

be

the

1973

CITES.

18

CITES aims to control international commercial trade in endangered species or their products,

but

it

is

not

designed

directly

to

conserve

biological

means ‘export, re-export, import and introduction from the sea ’ . tion

of

trade

in

endangered

species

differs

according

to

the

19

diversity.

‘ Trade’

The level of regula-

Appendix.

Appendix

I comprises all species threatened with extinction which are or may be affected by trade. Trade in specimens of species listed in Appendix I is subject to particularly strict regulation in order not to endanger further their survival and must only be authorised in exceptional circumstances in accordance with Article II(1). Appendix I includes marine species, such as minke and Bryde’ s whales, in its list. Appendix II includes all species which may be threatened with extinction unless trade in specimens of such species is subject to strict regulation in order to avoid utilisation incompatible with their survival.

20

Appendix

III

includes

all

species

which

any

Party

identi

fies

as

being

subject to regulation within its jurisdiction for the purposes of preventing or restricting exploitation, and as needing the cooperation of other Parties in the control of trade.

21

As CITES focuses on endangered or at-risk species, however, CITES-based controls cannot be used for conservation of marine biological diversity in general. It must also be noted that CITES allows Contracting Parties to opt out of protection measures for particular species.

22

These three approaches contribute to conserve diversity only in a piecemeal fashion. In order to deal with possible lacunae, there is a need to establish a global legal framework for conservation of (marine) biological diversity. Such a global framework is also important to provide a basis for the development of rules of customary international law in this ampli

fi ed

field.

At the same time, the global legal framework must be

fic

by regional treaties taking particular needs and circumstances of speci

regions into account. Therefore, the interaction between the global and regional legal frameworks seems to be increasingly important. Against that background, the next section will examine global legal frameworks with regard to conservation of marine biological diversity.

that migratory species, or a State,

flag vessels of which are engaged outside national jurisdictional limits in

taking that migratory species’. 18 21 22

993

UNTS

, p. 243; Entered into force 1 July 1975.

19

CITES, Article I(c).

20

CITES, Article II(2)(a).

CITES, Article II(3). CITES, Article XXIII. See also R. Barnes and C. Massarella, ‘High Seas Fisheries’, in E. Morgera and K. Kulovesi (eds.), 2016), p. 381.

Research Handbook on International Law and Natural Resources

(Cheltenham, Edward Elgar,

409

Conservation of Marine Biological Diversity

3 GLOBAL LEGAL FRAMEWORKS FOR THE CONSERVATION OF MARINE BIOLOGICAL DIVERSITY

3.1 The 1982 UN Convention on the Law of the Sea

(a) General Obligations The LOSC contains only two general provisions relating directly to this issue. First, Article 194(5) provides a general obligation to protect rare or fragile ecosystems:

The measures taken in accordance with this Part [XII] shall include those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life.

Second, Article 196(1) places an obligation upon States to take all measures necessary to prevent, reduce and control pollution of the marine environment resulting from the use of technologies under their jurisdiction or control, or the intentional or accidental introduction of species, alien or new, to a particular part of the marine environment, which may cause signi

ficant and harmful changes thereto. Later, Article 196 was amplified in the 2004 Inter-

national Convention for the Control and Management of Ships’ Ballast Water and Sediments.

23

Apart from these provisions, the LOSC made little reference to the conservation of

marine biological diversity. As a consequence, basically the traditional zonal management approach applies to conservation of marine biological diversity.

(b) Conservation of Marine Biological Diversity in Marines Spaces Under National Jurisdiction The LOSC provides no distinct obligation to conserve marine biological diversity in marine spaces under territorial sovereignty, namely internal waters, the territorial sea and archipelagic waters. It follows that the coastal State is subject only to the general obligations in Articles 192, 194(5) and 196 of the LOSC. Similarly, there is no explicit provision concerning conservation of marine biological diversity in the EEZ. However, it may not be farfetched to argue that marine biological diversity can be included in the scope of the ‘ natural resources ’ in Article 56(1)(a) and the ‘ living resources’ in Article 61 because such diversity concerns variability among marine living organisms. Furthermore, the coastal State is obliged to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life in its EEZ under Articles 194 and 196. The coastal State is also under a general obligation to protect and preserve the marine environment under Article 192. The duty to protect the marine environment is further supplemented by Article 193. Article 56(1)(b)(iii) confers on the coastal State jurisdiction with regard to the protection and preservation of the marine environment. Article 234 provides coastal States with the right to adopt and enforce non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution from

23

(2004) 19

IJMCL, p. 446. See also Chapter 8, section 6.10.

410 Protection of Community Interests at Sea vessels in ice-covered areas within the limits of the EEZ, where pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance. The cumulative effect of these provisions seems to be that the coastal State can arguably exercise jurisdiction over conservation of marine biological diversity in its EEZ. However, a question arises with regard to the reconciliation between the conservation of marine biological diversity and other legitimate uses of the ocean, such as navigation and laying submarine cables and pipelines, in the EEZ. In the EEZ, all States enjoy the freedom of navigation and over

flight

by virtue of Article 58(1) of the LOSC. In relation to this,

Article 211(1) of the LOSC requires States to promote the adoption of routeing systems designed to minimise the threat of accidents which might cause pollution of the marine environment. Articles 211(5) and 220 confer on the coastal States powers to prevent vesselsource pollution. It would seem to follow that a coastal State may regulate navigation in the form of routeing measures in order to protect the environment of its EEZ, including its biological diversity. Concerning submarine cables, all States enjoy the freedom to lay such cables and pipelines in the EEZ under Article 58(1). Under Article 79(3) of the LOSC, however, the delineation of the course for the laying of such pipelines on the continental shelf is subject to the consent of the coastal State. Thus, one cay say that the coastal State can regulate the course for laying pipelines for the purpose of the conservation of marine biological diversity in the EEZ. Concerning the continental shelf, a particular issue arises with regard to the conservation of cold-water coral.

24

Cold-water corals are long-lived, slow-growing and vulnerable to

physical damage. Evidence suggests that cold-water corals are already being damaged by human activities, in particular, the increasing intensity of deep-water trawling. There is also concern about the potential effects of hydrocarbon and mineral exploration and exploitation, cable and pipeline placement, repair and dumping.

25

Under Article 77(4), the only

living components of natural resources falling within the continental shelf regime are sedentary species. The physical structure of a reef is composed of a base of dead coral skeletons to which living corals are attached. Deep-water coral seems to straddle the distinction between living and non-living resources made in the LOSC.

26

But, it may not

be unreasonable to consider that cold-water coral falls within the scope of sedentary 27

species.

24

Generally on this issue, see R. Long and A. Grehan, ‘Marine Habitat Protection in Sea Areas under the Jurisdiction of a Coastal Member State of the European Union: The Case of Deep-Water Coral Conservation in Ireland ’ (2002) 17 IJMCL, pp. 235– 261.

25

A. Freiwald, J. H. Fosså, A. Grehan, T. Koslow and J. M. Roberts, Cold-Water Coral Reefs (Cambridge, UNEP World Conservation Monitoring Centre, 2004), pp. 6 and 10. See also Long and Grehan, ‘Marine Habitat Protection’, pp. 237–240.

26 27

Ibid., p. 243. Chagos Marine Protected Area Arbitration Award (Mauritius v United Kingdom), Award of 18 March 2015, para. 304, available at: https://pca-cpa.org/en/cases/11/. See also presentation by Boyle in the South China

Sea Arbitration, Hearing on Jurisdiction and Admissibility, Day 2, 8 July 2015, p. 104.

411 Conservation of Marine Biological Diversity In this connection, it must be remembered that the coastal State is under the general obligation to protect and preserve ‘ rare or fragile ecosystems’ pursuant to Article 194(5). As there is no geographical limit in this provision, Article 194(5) arguably covers the continental shelf. In order to implement this obligation, it appears inevitable that the coastal State exercises jurisdiction over marine biological diversity on its continental shelf. Furthermore, Article 81 of the LOSC stipulates that the coastal State shall have the exclusive right to authorise and regulate drilling on the continental shelf ‘for all purposes ’ . Thus the coastal State may regulate drilling on the continental shelf in order to prevent adverse impact on ecosystems there. To prevent adverse impacts arising from trawl need to regulate

fishing on cold-water coral, there will be a

fishing activities in the adjacent water to the continental shelf. In fact, the

UN General Assembly Resolution of 2017 called upon States and international organisations to take urgent further action to address destructive practices that have adverse impacts on marine biodiversity and ecosystems, including cold-water corals.

28

(c) Conservation of Marine Biological Diversity in Marine Spaces Beyond National Jurisdiction The LOSC contains no explicit provision relating to conservation of marine biological diversity in the high seas and the Area.

29

The UN General Assembly established the Ad

Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction in 2004.

30

Since then, a series of meetings of the Working Group have been convened.

Subsequently, the UN General Assembly, in its resolution of 19 June 2015, decided to develop an international legally binding instrument under the LOSC on the conservation 31

and sustainable use of marine biological diversity of areas beyond national jurisdiction.

Prior to holding an intergovernmental conference, it also decided to establish a preparatory committee open to all UN States Members, members of the specialised agencies and parties to the Convention, with others invited as observers in accordance with past UN practice, to make substantive recommendations to the General Assembly on the elements of a draft treaty under the LOSC. The preparatory committee started its work in 2016 and the committee was to report to the General Assembly on its progress by the end of 2017. The Report was adopted in July 2017.

33

32

It summarised elements that generated convergence

among most delegations and some of the main issues on which there is divergence of views.

28

34

The

first

session

of

the

Intergovernmental

Conference

on

this

subject

was

UN General Assembly Resolution 72/73, Oceans and the Law of the Sea, A/RES/72/73, 5 December 2017, p. 42, para. 254.

29

Conservation of marine biological diversity on the high seas will be considered in conjunction with marine protected areas. See section 4.3 of this chapter.

30

UN General Assembly Resolution 59/24, Oceans and the Law of the Sea, A/RES/59/24, 17 November 2004, pp. 13–14, para. 73.

31 33

UN General Assembly Resolution 69/292, A/RES/69/292, 19 June 2015.

PC.4/2. 34

32

Ibid., para. 1(a).

Report of the Preparatory Committee established by General Assembly Resolution 69/292, A/AC.287/2017/ Ibid., p. 7, paras. 38 et seq .

412 Protection of Community Interests at Sea convened in September 2018. The second and third sessions are to take place in 2019, and the fourth session is to take place in the

first half of 2020.

35

In this context, one of the contentious issues concerns the use of marine genetic resources in 36

areas beyond national jurisdiction.

According to the Subsidiary Body on Scienti

fic, Technical fi

and Technological Advice of the Rio Convention, marine genetic resources are de ned as

‘ marine plants, animals and microorganisms, and parts thereof containing functional units of 37

heredity that are of actual or potential value’ .

commercial interest because of their potential for cosmetic applications.

38

fic and

These resources are of growing scienti

biotechnological, pharmaceutical and

fi

Yet the LOSC contains no speci c provision with respect to these

resources. As ‘ resources’ in the Area are limited to mineral resources under Article 133(a) of the LOSC, the management of genetic resources which concern living resources are beyond the scope of Part XI of the Convention. Given the apparent gap, there is a need to elaborate rules of international law with respect to the conservation and sustainable use of genetic resources in

fied.

the Area. In this regard, two contrasting views can be identi

One view is that marine

genetic resources should be considered as common heritage of mankind and that that regime should therefore apply. According to another view, the freedom of the high seas applies to those resources.

39

Although rules governing marine genetic resources remain a matter for 40

future negotiations, at least three comments can be made.

First, under Article 143(3) of the LOSC, States Parties are obliged to promote international cooperation with the International Seabed Authority (hereinafter the Authority) in marine scienti

fic

research in the Area. Article 143 is not limited to marine scienti

fic

research

concerning mineral resources in the Area. It follows that States investigating the Area’ s genetic resources are required to cooperate with the Authority. Thus Article 143 discards the

fic

easy assumption that an absolute freedom of the high seas applies to marine scienti research regarding genetic resources in the Area.

Second, the Area is open to use exclusively for peaceful purposes by all States under Article 141 of the LOSC. It would seem to follow that genetic resources in the Area should also be used exclusively for peaceful purposes. Marine scienti

35 36

fic research in the Area shall

See www.un.org/bbnj/content/sessions. Generally on this issue, see in particular, D. Leary, International Law and the Genetic Resources of the Deep Sea (Leiden, Njihoff, 2007); I. Kirchner-Freis and A. Kirchner, ‘Genetic Resources of the Sea’, in D. J. Attard et al. (eds.), The IMLI Manual on International Maritime Law (hereinafter the IMLI Manual), vol. I (Oxford University Press, 2014), pp. 377–395; C. Salpin, ‘Marine Genetic Resources of Areas beyond National Jurisdiction: Soul Searching and the Art of Balance’, in E. Morgera and K. Kulovesi (eds.), Research Handbook on International Law and Natural Resources (Cheltenham, Edward Elgar, 2016), pp. 411 –431.

37

Convention on Biological Diversity, Status and Trends of, and Threats to, Deep Seabed Genetic Resources

fi

Beyond National Jurisdiction, and Identi cation of Technical Options for their Conservation and Sustainable Use, UNEP/CBD/SBSTTA/11/11, 22 July 2005, p. 6, para. 10. 38

Convention on Biological Diversity, Decision VIII/21. Marine and Coastal Biological Diversity: Conservation and Sustainable Use of Deep Seabed Genetic Resources Beyond the Limits of National Jurisdiction, UNEP/ CBD/COP/DEC/VIII/21, 15 June 2006, p. 1, para. 1; Kirchner-Freis and A. Kirchner, ‘Genetic Resources of the Sea’, p. 377.

39 40

UN General Assembly, A/69/82, 5 May 2014, p. 10, para. 50.

fl ections on the Conservation and Sustainable Use of Genetic Resources in the

Further, see Y. Tanaka, ‘Re

Deep Seabed beyond the Limits of National Jurisdiction’ (2008) 39 ODIL, pp. 129– 149.

413

Conservation of Marine Biological Diversity also be carried out exclusively for peaceful purposes and for the bene

fit of mankind as a

whole under Article 143(1) of the Convention. Third, as discussed earlier, the Authority has responsibility to protect the environment of the Area.

41

biological

Obviously environmental protection of the Area is a prerequisite to conserving resources

important in this

there.

Hence

the

role

of

the

Authority

will

also

be

increasingly

field.

3.2 The 1992 Convention on Biological Diversity

(a) Outline of the Rio Convention The 1992 Rio Convention provides a global legal framework for conservation of biological

fies that it seeks three objectives:

diversity. Article 1 of the Convention speci

• the conservation of biological diversity, • the sustainable use of its components, and

fits arising out of the utilisation of genetic resources.

• the fair and equitable sharing of the bene

In this regard, it is relevant to note that provisions of the Rio Convention apply both to terrestrial and marine biological diversity. ment adopted in November 1995 reaf

42

firmed

In this regard, the Jakarta Ministerial Statethe critical need for the COP to address the

conservation and sustainable use of marine and coastal biological diversity. rules of the Rio Convention can be divided into six categories. (i) General rules of international environmental law: Article 3 con

43

The principal

firms that States have

the sovereign right to exploit their own resources pursuant to their own environmental policies. The authority to determine access to genetic resources rests with national governments and is subject to national legislation.

44

However, sovereign rights are balanced by the

general duty to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or areas beyond the limits of national jurisdiction. In relation to this, it is to be noted that in its Preamble, the Rio Convention regards the conservation of biological diversity as ‘a common concern of humankind’ . This suggests that the management of biological diversity under a State ’s jurisdiction is no longer an internal matter for a State but is a matter of concern of the international community as a whole.

45

Further to this, the Rio Convention obliges each Contracting Party to promote the

sustainable use of components of biological diversity.

41 42

46

See Chapter 8, section 8.2 of this book. Birnie et al., International Law and the Environment, p. 745; M.-A. Hermitte, ‘La convention sur la diversité biologique’ (1992) 38 AFDI, p. 861.

43 44 45

Jakarta Ministerial Statement on the Implementation of the Convention on Biological Diversity, para. 14. Article 15(1) of the Rio Convention. R. Wolfrum, ‘The Protection and Management of Biological Diversity’, in F. L. Morrison and R. Wolfrum (eds.), International, Regional and National Environmental Law (The Hague, Kluwer, 2000), p. 362; A. Boyle, ‘The Rio Convention on Biological Diversity’, in C. Redgwell and M. Bowman (eds.), International Law and

the Conservation of Biological Diversity (The Hague, Kluwer, 1996), p. 40. 46

Articles 6 and 10.

414 Protection of Community Interests at Sea (ii) Conservation of biological diversity: the Rio Convention provides in situ conservation and ex situ conservation. ‘ In situ conservation ’ means ‘ the conservation of ecosystems and natural habitats and the maintenance and recovery of viable populations of species in their natural surroundings and, in the case of domesticated or cultivated species, in the sur47

roundings where they have developed their distinctive properties ’ . Contracting

Party

is, inter alia,

obliged

to

adopt measures

Speci

fically

concerning the

each

following

matters: regulation of important biological resources; promotion of environmentally sound and

sustainable

development

in

areas

adjacent

to

protected

areas;

rehabilitation

of

degraded ecosystems and promotion of the recovery of threatened species; establishment of means to regulate the risks associated with the use and release of living modi

fied

organisms; prevention of the introduction of those alien species which threaten ecosystems, habitats or species; providing the conditions needed for compatibility between present uses and the conservation of biological diversity; preservation of knowledge, innovations and practices of indigenous and local communities; development of necessary legislation; regulation of the relevant processes and categories of activities; and cooperation in providing

financial

and other support particularly to developing countries.

48

Although the Rio

Convention does not explicitly refer to the term ‘ the ecosystem approach’ , these measures seem to re

flect this approach.

49

‘ Ex situ conservation ’ means the conservation of components of biological diversity

outside their natural habitats.

50

Article 9 obliges each Contracting Party to take the

following measures: adoption of measures for the ex situ conservation of components of biological diversity; establishment and maintenance of facilities for such conservation; adoption of measures for the recovery and rehabilitation of threatened species; regulation and management of

collection of biological

resources;

and cooperation

in

providing

financial and other support for ex situ conservation. Historically, most ex situ conservation has been undertaken in developed countries, and most collections of genetic materials have been carried out without the approval of the country of origin, which is often a developing country. It is not surprising that developing countries were against the argument emphasising ex situ conservation as a principal measure. Thus Article 9 makes clear that ex situ conservation should serve as a complement to in situ measures. In the Rio Convention, the reference to the precautionary approach is made only in its Preamble. However, the application of this approach is set out as guidance for all activities affecting marine biological diversity in Decision IV/5 of the COP.

51

(iii) Procedural rules intended to minimise adverse impacts upon biological diversity: Article 14(1)(a) obliges each Contracting Party to introduce, ‘ as far as possible and as

47 49

Article 2.

48

Article 8.

Birnie et al., International Law and the Environment, p. 639. The application of the ecosystem approach has been discussed in the COP of the Rio Convention. See for instance, COP, Decision V/6, Ecosystem Approach, 2000.

50 51

Article 2. The Convention on Biological Diversity, COP Decision IV/5, Conservation and Sustainable Use of Marine and Coastal Biological Diversity, Including a Programme of Work, Annex, section B-2, para. 4.

415 Conservation of Marine Biological Diversity appropriate’ , procedures requiring an environmental impact assessment of its proposed projects that are likely to have signi

ficant

adverse effects on biological diversity, with a

view to avoiding or minimising such effects. Article 14(1)(c) requires each Contracting Party, ‘ as far as possible and as appropriate’ , to ‘ promote, on the basis of reciprocity,

fication, exchange of information and consultation on activities under their jurisdiction or control which are likely to signi ficantly affect adversely the biological diversity of other noti

States or areas beyond the limits of national jurisdiction, by encouraging the conclusion of bilateral, regional or multilateral arrangements, as appropriate ’. In the case of imminent or great danger or damage, originating under its jurisdiction or control, to biological diversity within the area under the jurisdiction of other States or in areas beyond the limits of national jurisdiction, each Contracting Party is required to notify immediately the potentially affected States of such danger or damage, as well as initiate action to prevent or minimise such danger or damage (Article 14(1)(d)). To this end, Article 14(1)(e) provides an obligation to promote national arrangements for emergency responses to activities or events. (iv)

Fair and equitable sharing of benefits

: in this regard, a key provision is Article 15.

Article 15(2) requires each Contracting Party to endeavour to create conditions to facilitate access to genetic resources for environmentally sound uses by other Contracting Parties. Under Article 15(3), the genetic resources being provided by a Contracting Party are only those that are provided by Contracting Parties that are countries of origin of such resources or by Parties that have acquired the genetic resources in accordance with the Rio Convention. Access to genetic resources must be on mutually agreed terms and be subject to the prior informed consent of the Contracting Party providing such resources.

52

Article 15(7)

further obliges each Contracting Party to take legislative, administrative or policy measures with a view to sharing in a fair and equitable way the results of research and development

fits arising from the commercial and other utilisation of genetic resources with Contracting Party providing such resources. These obligations are ampli fied by the

and the bene the

Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Bene

fits Arising from their Utilization to the Convention on Biological Diversity adopted on

29 October 2010. (v)

53

Assistance to developing countries

: in general, States situated in the lower latitudes

have more abundant biological diversity than those of higher latitude. The deterioration of biological diversity is closely linked to the widespread poverty in developing countries. In this regard, Article 20(4) of the Rio Convention clearly recognises the fact that ‘economic and social development and eradication of poverty are the

first and overriding priorities of

the developing country Parties ’. In this sense, conservation of biological diversity can be

52 53

Article 15(4) and (5). The text of the Protocol is available at: www.cbd.int/abs/. Entered into force 12 October 2014. Generally on the Nagoya Protocol, see M. Buck and C. Hamilton, ‘The Nagoya Protocol on Access to Genetic Resources and

fits Arising from their Utilisation to the Convention on Biological

the Fair and Equitable Sharing of Bene Diversity’ (2011) 20(1)

RECIEL

, pp. 47–61.

416 Protection of Community Interests at Sea 54

characterised by a North-South axis.

Given that many habitats to be protected are located

in the territories of developing States, the allocation of economic bene

fits and transfer of

technology to developing countries are particularly important. Thus Article 20(2) places an explicit obligation upon the developed country to provide ‘ new and additional

financial

resources to enable developing country Parties to meet the agreed full incremental costs to them of implementing measures ’. Furthermore, Article 16(1) calls for each Contracting Party to provide and/or facilitate access for and transfer to other Contracting Parties of technologies that are relevant to the conservation and sustainable use of biological diversity. Such access to and transfer of technology is to be provided under fair and most favourable terms in accordance with Article 16(2). This provision makes clear that in the case of technology subject to patents and other intellectual property rights, such access and transfer must be provided on terms which recognise and are consistent with the adequate and effective protection of intellectual property rights. Yet the transfer of technology set out in Article 16 is not mandatory.

55

The scope of intellectual property rights also remains

unresolved. (vi)

Compliance and dispute settlement

: the Rio Convention does not contain a non-

compliance procedure comparable to the one created by Article 8 of the 1987 Montreal Protocol to the Ozone Convention,

56

but provides for a reporting system. In this regard,

Article 26 places an obligation upon each Contracting Party to present to the COP reports on measures which it has taken for the implementation of the provisions of the Rio Convention and their effectiveness in meeting the objectives of the Convention. Such information submitted in accordance with Article 26 is to be considered by the COP.

57

The reports provided by the Contracting Parties are the principal source of ecological and statistical data. The reporting system has a valuable role to play in assessing the effectiveness of the measures taken by the Contracting Parties.

58

Article 27 provides procedures for dispute settlement with regard to the interpretation and application of the Rio Convention. Article 27(1) and (2) provides diplomatic methods of dispute settlement, namely negotiation, good of

fices and mediation. Under Article 27(3), a

State or regional economic integration organisation may declare that it accepts the arbitration set out in Part 1 of Annex II and/or the ICJ as the compulsory means of dispute settlement. If the Parties to the dispute have not accepted the same or any procedure, the dispute is to be submitted to conciliation in accordance with Part 2 of Annex II unless the Parties otherwise agree pursuant to Article 27(4). Finally, the relationship between the Rio Convention and other conventions, in particular the LOSC, should be mentioned. Article 22 of the Rio Convention provides:

54

A. A. Yusuf, ‘International Law and Sustainable Development: The Convention on Biological Diversity’ (1994) 2

55 57 58

African Yearbook of International Law

, p. 112.

Wolfrum, ‘The Protection and Management of Biological Diversity ’, p. 367.

56

(1987) 26

ILM

, p. 1550.

Article 23(4)(a). Yet the COP expressed its concern over the delay in the submission of national reports by some Parties. Resolution VII/25. National Reporting, UNEP/CBD/COP/DEC/VII/25, 13 April 2004, para. 2.

417 Conservation of Marine Biological Diversity

1. The provisions of this Convention shall not affect the rights and obligations of any

except where the exercise of those rights and obligations would cause a serious damage or threat to biological diversity. Contracting Party deriving from any existing international agreement,

2. Contracting Parties shall implement this Convention with respect to the marine environment consistently with the rights and obligations of States under the law of the sea.

59

It appears that normally the effect of Article 22 is to ensure the predominance of the LOSC. This interpretation is also supported by Article 311(3) of the LOSC. However, it seems that this is not the case if there is ‘ a serious damage or threat to biological diversity’. For instance, there appears to be scope to argue that States Parties to the Rio Convention cannot justify

fishing which may cause

basis of the LOSC.

‘ a serious damage or threat to biological diversity’ on the

60

(b) Commentary The Rio Convention calls for four comments. First, in essence, the Rio Convention is based on the zonal management approach which distinguishes between the spaces under and beyond national jurisdiction. Concerning transboundary damage on biological diversity, the Rio Convention merely places on Contracting Parties the obligation to exchange information and the obligation to consult one another. It would seem that the Rio Convention did not advance existing international law on this matter. Second, the provisions of the Rio Convention relating to conservation apply solely to components of biological diversity in areas within the limits of a State ’ s national jurisdiction. In areas beyond national jurisdiction, each Contracting Party is only obliged to cooperate with other Parties for the conservation and sustainable use of biological diversity in accordance with Article 5. It would seem to follow that Contracting Parties have no direct obligation relating to the conservation of speci

fic

components of biological diversity in 61

marine spaces beyond the limits of national jurisdiction.

Third, the wording of the principal Articles is heavily quali possible ’ and ‘ as appropriate’ . This quali

fied by the words

‘ as far as

fication will leave much discretion to the Contract-

ing Parties. Fourth, there is a wide variety of different ecosystems in the oceans. As a consequence, the need for conservation of marine biological diversity may vary depending on the marine area. It is dif

ficult if not impossible to establish uniform and detailed rules relating to the

conservation of marine biological diversity at the global level. In light of economic and technological dif

59 61

Emphasis added.

ficulties in developing countries, it will also be difficult to place the same 60

Birnie et al.,

International Law and the Environment, p. 750.

SBSTTA of the Rio Convention also takes the same interpretation. UNEP/CBD/SBSTTA/8/INF/3/Rev. 1, 22 February 2003, p. 19, para. 70. See also L. Glowka, ‘The Deepest of Ironies: Genetic Resources, Marine

fic Research, and the Area

Scienti

’ (1996) 12

Ocean Yearbook, p. 168.

418

Protection of Community Interests at Sea obligations upon them to conserve marine biological diversity. Hence the global framework set out by the Rio Convention needs to be further ampli

fied by regional treaties relating to

conservation of marine biological diversity. In this regard, a good example may be furnished by the OSPAR Convention.

62

The

original text of the OSPAR Convention did not contain detailed provisions with regard to the conservation of marine biological diversity. Later, the scope of the Convention was expanded to cover this subject. Currently the obligation to conserve marine biological diversity is provided in Annex V as well as Appendix 3 of the Convention in some detail. In particular, Article 2(a) of Annex V obliges Contracting Parties to ‘take the necessary measures to protect and conserve the ecosystems and the biological diversity of the maritime area, and to restore, where practicable, marine areas which have been adversely affected ’ . The OSPAR Commission is required to draw up programmes and measures for the control of human activities which have adverse effects on speci and ecological processes.

63

fic marine species, habitats

To this end, the OSPAR Commission is to develop means for

instituting protective or precautionary measures related to speci species or habitats.

64

fic

areas or particular

Furthermore, as will be seen next, the role of regional treaties is

increasingly important in the creations of MPAs.

4 MARINE PROTECTED AREAS

4.1 General Considerations

MPAs seek to protect marine ecosystems of a certain area as a whole. While there is no universally established de OSPAR Convention de

finition in international law,

65

the Biodiversity Committee of the

fines an MPA as:

An area within the maritime area for which protective, conservation, restorative or precautionary measures, consistent with international law have been instituted for the purpose of protecting and conserving species, habitats, ecosystems or ecological processes of the marine 66

environment.

67

While treaties creating MPAs may date back to the 1940s,

it was not until the 1970s that

legal attention was devoted to MPA-related concepts. The 1971 Convention on Wetlands of

62 63 65

For an analysis of the OSPAR Convention, see Tanaka, Article 3(1)(a) of Annex V. A frequently quoted de

64

A Dual Approach

, pp. 148–159.

Article 3(1)(b)(ii) of Annex V.

finition is provided by IUCN: Any area of intertidal or subtidal terrain, together with flora, fauna, historical and cultural features, which has been reserved by ‘

its overlying water and associated

law or other effective means to protect part or all of the enclosed environment.’ G. Kelleher (ed.),

66

for Marine Protected Areas

Guidelines

(Gland, IUCN – The World Conservation Union, 1999), pp. xviii and 98.

OSPAR Recommendation 2003/3 adopted by OSPAR 2003 (OSPAR 03/17/1, Annex 9), amended by OSPAR Recommendation 2010/2 (OSPAR 10/23/1, Annex 7), para. 1.1.

67

Cf. the 1940 Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere (Article 2). 161

UNTS

, p. 193. Entered into force in 1942.

419

Conservation of Marine Biological Diversity International Importance (Ramsar Convention) is an example. Article 2(1) of the Ramsar Convention imposes on each Contracting Party an obligation to designate suitable wetland 68

within its territory for inclusion in a List of Wetlands of International Importance. The

Contracting

Parties

are

under

the

obligation

to

formulate

and

implement

their

planning so as to promote the conservation of the wetlands included in the List, and as far as possible the wise use of wetlands in their territory in accordance with Article 3(1). Such wetlands may cover offshore areas pursuant to Articles 1(1) and 2(1). Some 48 per cent of the designated Ramsar sites include coastline and these sites may contain marine components.

69

An MPA-related concept can also be detected in the 1972 Convention for the Protection 70

of the World Cultural and Natural Heritage (hereinafter the World Heritage Convention).

This Convention aims to protect cultural and natural heritage, including habitats of ‘ threatened species of animals and plants of outstanding universal value from the point

of view of science or conservation ’ .

71

Under Article 11(1), every State Party is obliged to

submit to the World Heritage Committee an inventory of property forming part of the cultural and natural heritage, which is situated in its territory and is of outstanding universal value. The Committee shall then establish a list of properties forming part of the cultural heritage and natural heritage under the title of the

‘ World Heritage List’ .

Several World Heritage sites include a marine site. Examples include the Great Barrier Reef (Australia), the Belize Barrier Reef (Belize), the Wadden Sea (Germany and the Netherlands), the Whale Sanctuary of El Vizcaino (Mexico) and the Tubbataha Reef (the Philippines).

72

In the 1980s, MPAs were increasingly being incorporated into various treaties. While most MPAs were set in place in territorial seas near to coastal areas in the 1970s, the geographical scope of MPAs tended to be extended to the EEZ in the 1980s and later. Furthermore, as we shall discuss later, the need to establish MPAs in marine spaces beyond the limits of national jurisdiction is also being discussed in various forums, such as the International Union for the Conservation of Nature (IUCN).

4.2 Typology of MPAs in International Law

MPA-related concepts can be divided into two principal categories. The

first

category

involves MPAs intended to protect the marine environment (category 1). At least

five

MPA-related concepts must be noted:

fined area

• ‘ clearly de

’ in Article 211(6) of the LOSC,

• ‘ ice-covered areas’ in Article 234 of the LOSC, • ‘ special areas’ under MARPOL 73/78,

68 69 70 72

996

UNTS ILM Guidelines for Marine Protected Areas ILM

Kelleher,

(1972) 11

, p. 245; (1972) 11

, p. 963. Entered into force 21 December 1975. , p. 4.

, p. 1358. Entered into force 17 December 1975.

71

See Article 2.

The World Heritage list which includes marine components is available at: http://whc.unesco.org/en/list/.

420 Protection of Community Interests at Sea • ‘ particularly sensitive sea areas’ (PSSA) in the IMO Guidelines,

73

and

• ‘ specially protected areas’ in the 1985 Montreal Guidelines.

The last item relates to the protection of marine spaces from land-based marine pollution. Other MPA-related concepts in this category are meant to protect the marine environment from vessel-source pollution. Although these MPA-related concepts do not directly involve conservation of marine biological diversity, they will indirectly contribute to preserve diversity by protecting the marine environment. The second category pertains to MPAs relating directly to conservation of marine biological diversity (category 2). These MPAs can be divided into two sub-categories.

first sub-category concerns a species-specific MPA (category 2 1). This type of MPA seeks to protect speci fic marine life, such as marine mammals, in a particular region. MPAs in this sub-category are basically in line with the traditional species-speci fic approach. The

–

Examples are furnished by: • the 1990 Agreement on the Conservation of Seals in the Wadden Sea,

74

• the 1993 Déclaration conjointe relative à l’ institution d’ un sanctuaire méditerranéen pour

les mammifères marins,

75

• the Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and

Contiguous Atlantic Area (ACCOBAMS),

76 77

• the 1999 Agreement Establishing a Sanctuary for Marine Mammals,

and 78

• the Inter-American Convention for the Protection and Conservation of Sea Turtles.

A second sub-category involves MPAs which seek to protect rare or fragile ecosystems and the habitat of depleted or endangered species and other marine life in a particular

ficant number of treaties in

region (category 2 –2). As shown in Table 9.1, there are a signi

this category of MPAs. One might take the Rio Convention as an example. The Rio Convention provides the establishment of the ‘protected area’. Under Article 2, the ‘ protected area’ means ‘a geographically de

managed to achieve speci

fic

fined

area which is designated or regulated and

conservation objectives’. As the geographical scope of the Rio

Convention includes marine spaces, ‘protected areas ’ can be created in marine spaces. In fact, the COP to the Rio Convention agreed that MPAs were one of the essential tools and approaches in the conservation and sustainable use of marine and coastal biological diversity.

73

ficance fic reasons and because it may be vulnerable to damage by international shipping activities . IMO Resolution A.927(22) Annex 2, Guidelines for the Identification and A PSSA is de

fined as:

79

‘an area that needs special protection through action by IMO because of its signi

for recognized ecological, socio-economic, or scienti ’

Designation of Particularly Sensitive Sea Areas, 15 January 2002, para. 1.2. 74 75

The text of the Agreement is available at: www.cms.int/species/wadden_seals/sea_text.htm. The text of the Protocol is reproduced in T. Scovazzi (ed.), Marine Specially Protected Areas: The General

Aspects and the Mediterranean Regional System (The Hague, Kluwer, 1999), pp. 243 –245. 76 77

(1997) 36 ILM, p. 777. With respect to the 1999 Sanctuary Agreement, see T. Scovazzi, ‘The Mediterranean Marine Mammals Sanctuary ’ (2001) 16 IJMCL, pp. 132– 141. The text of the Agreement is reproduced ibid., pp. 142 –145.

78 79

For the text of the Convention, see www.iacseaturtle.org/eng-docs/Texto-CIT-ENG.pdf. The Convention on Biological Diversity, COP Decision VII/5, Marine and Coastal Biological Diversity, UNEP/ CBD/COP/DEC/VII/5, 13 April 2004, para. 16.

421

Conservation of Marine Biological Diversity

T A B L E 9 . 1 E X A M P L E S O F TR E A T IE S W H IC H E S T A B L I S H M P A S I N C A T E G O R Y 2

–2

Relevant Provision

Year

Title

1976

Convention on Conservation of Nature in the South Paci

1980

Convention on the Conservation of Antarctic Marine Living Resources

Article 9(2)(g)

1981

Convention for Co-operation in the Protection and Development of the Marine

Article 11

fic

Article II

and Coastal Environment of the West and Central African Region 1982

Protocol Concerning Mediterranean Specially Protected Areas

Article 3(1)

1985

Convention for the Protection, Management and Development of the Marine and

Article 10

Coastal Environment of the Eastern African Region 1985

Protocol Concerning Protected Areas and Wild Fauna and Flora in the Eastern

Article 8

African Region 1985

ASEAN Agreement on the Conservation of Nature and Natural Resources

Article 3(3)(a)

1986

Convention for the Protection of the Natural Resources and Environment of the

Article 14

fi

South Paci c Region 1989

Protocol for the Conservation and Management of Protected Marine and Coastal Areas of the South-East Paci

1990

Articles 2 and 3

fic

Protocol Concerning Specially Protected Areas and Wildlife in the Wider

Article 4

Caribbean Region 1991

Protocol to the Antarctic Treaty on Environmental Protection

Annex V

1992

Convention on Biological Diversity

Article 8(a)

1992

Convention for the Protection of the Marine Environment of the North-East

See note

Atlantic (OSPAR Convention) 1992

Convention on the Protection of the Marine Environment of the Baltic Sea Area

See note

1995

Protocol Concerning Specially Protected Areas and Biological Diversity in the

Articles 8, 9,

Mediterranean

Annex I

Note: The list is not exhaustive. Although there is no explicit provision relating to MPAs in the OSPAR Convention, the institution of MPAs is developing through the OSPAR Commission. Likewise, Baltic Sea Protected Areas (BSPAs) are developing through the Helsinki Commission, although the Helsinki Convention did not refer to BSPAs.

Article 8(a) of the Rio Convention provides that each Contracting Party shall, ‘ as far as possible and as appropriate’ , establish a system of protected areas or areas where special measures need to be taken to conserve biological diversity. The cumulative effect of Articles 4, 8(a) and 22(2) suggests that the protected area in the Rio Convention can be established only within the marine spaces under coastal State jurisdiction.

80

Article 8(b) of the Rio Convention requires each Contracting Party to develop ‘where necessary, guidelines for the selection, establishment and management of protected areas or

80

D. K. Anton, ‘Law of the Sea ’s Biological Diversity’, in J. I. Charney, D. K. Anton and M. E. O’Connell (eds.), Politics, Values and Functions: International Law in the 21st Century, Essays in Honour of Professor Louis Henkin (The Hague, Nijhoff, 1997), p. 341.

422 Protection of Community Interests at Sea areas where special measures need to be taken to conserve biological diversity ’ ; Article 8(c) imposes

on

each

Contracting

Party

an

obligation

to

‘regulate

or

manage

biological

resources important for the conservation of biological diversity whether within or outside protected areas, with a view to ensuring their conservation and sustainable use’ . Similarly, each Contracting Party is obliged to ‘promote environmentally sound and sustainable development in areas adjacent to protected areas with a view to furthering protection of these areas ’ in conformity with Article 8(e). As noted, these provisions apply to the creation of the protected area in the oceans. In this case, a question that may arise is the compatibility between MPAs and other legitimate use of the oceans, in particular, the freedom of navigation. As discussed earlier, the LOSC carefully safeguards the right of navigation in each jurisdictional zone.

81

Thus, MPAs in the Rio Convention should be balanced against

the freedom of navigation under the LOSC as well as customary law. The legality of MPAs may be challenged by another State. The

Area

Chagos Marine Protected

Arbitration is a case in point. On 1 April 2010, the United Kingdom established a 200-

nautical-mile MPA around the Chagos Archipelago which is administered by the United Kingdom as the British Indian Ocean Territory. As a consequence,

fishing

and other

activities in the MPA were prohibited. In this regard, Mauritius disputed the legality of the MPA, arguing that the establishment of the MPA violates the LOSC. Thus, on 20 December 2010,

Mauritius

commenced

arbitration

proceedings

against

the United

Kingdom

pursuant to Article 287 of the LOSC and in accordance with Article 1 of Annex VII of the Convention.

82

In the award of 2015, the Annex VII Arbitral Tribunal found, inter alia:

(1) that the United Kingdom’s undertaking to ensure that

fishing rights in the Chagos

Archipelago would remain available to Mauritius as far as practicable is legally binding insofar as it relates to the territorial sea; (2) that the United Kingdom’s undertaking to return the Chagos Archipelago to Mauritius when no longer needed for defence purposes is legally binding; and

fi

(3) that the United Kingdom’s undertaking to preserve the bene t of any minerals or oil 83

discovered in or near the Chagos Archipelago for Mauritius is legally binding.

It thus unanimously concluded that in establishing the MPA surrounding the Chagos Archipelago, the United Kingdom breached its obligations under Articles 2(3), 56(2) and 194(4) of the Convention.

84

Of note in this arbitration award is the interpretation and

application of Article 194(4), which provides:

In taking measures to prevent, reduce or control pollution of the marine environment, States

fi

shall refrain from unjusti able interference with activities carried out by other States in the exercise of their rights and in pursuance of their duties in conformity with this Convention.

81 82

See for instance, LOSC, Articles 17, 24(1), 25(3), 38, 44, 52(2), 53(2) and 58(1). See I. Papanicolopulu, ‘Submission to Arbitration of the Dispute on the Marine Protected Area Around the Chagos Archipelago’ (2011) 26

83

Chagos Marine Protected Area

IJMCL

, pp. 667–678.

Arbitration Award, para. 547(B).

84

Ibid

.

423

Conservation of Marine Biological Diversity Even though the Tribunal does not exclude the possibility that environmental consider-

fishing rights in the territorial such justification would require

ations could potentially justify the infringement of Mauritian sea for the purposes of Article 194(4), it considers that signi

ficant engagement with Mauritius to explain the need for the measure and to explore

less restrictive alternatives. Yet, this engagement is nowhere evident in the record. The Tribunal thus concluded that the declaration of the MPA was not compatible with Article 194(4) and Mauritian

fishing activities in the territorial sea.

85

4.3 MPAs in the High Seas

In recent times the need to establish MPAs in the high seas has been increasingly voiced in various forums. For example, the COP of the Rio Convention stated that ‘marine protected areas are one of the essential tools to help achieve conservation and sustainable use of biodiversity in marine areas beyond the limits of national jurisdiction ’.

86

Is there a legal

ground for creating MPAs in the high seas in positive international law? In considering this issue, a distinction must be made between MPAs located within the potential EEZ of the coastal State (the high seas in a broad sense) and MPAs located in the high seas beyond 200 nautical miles (the high seas in a strict sense).

(a) MPAs on the High Seas in a Broad Sense MPAs on the high seas in a broad sense mean MPAs located in the high seas which are the potential EEZ of the coastal State. MPAs in the Mediterranean Sea are the best example. Currently large expanses of waters located beyond the 12-nautical-mile limit remain the high seas, as the Mediterranean States have not yet established EEZs. Should coastal States establish their EEZs in the Mediterranean Sea, however, the whole area will fall into the EEZs of these States. In this sense, high seas areas in the Mediterranean Sea can be regarded as a potential EEZ of the coastal State. In the Mediterranean Sea, two treaties provide for the establishment of MPAs on the high seas.

87

The

first

treaty is the 1995 Protocol Concerning Specially Protected Areas and

Biological Diversity in the Mediterranean (hereinafter the 1995 Protocol).

88

This Protocol

aims to protect areas of particular natural or cultural value, notably by the establishment of specially protected areas, and to protect threatened or endangered species of

flora

and

fauna under Article 3(1). The 1995 Protocol is applicable to all the marine waters of the Mediterranean Sea, the seabed and its subsoil, as well as the terrestrial coastal areas designated by each of the Parties, including wetlands.

89

The Protocol establishes two types of MPAs in the Mediterranean Sea: ‘ specially protected areas’ (SPAs) and ‘ specially protected areas of Mediterranean importance’ (SPAMIs).

85 86

Ibid., para. 541. Convention on Biological Diversity, COP Decision VIII/24, Protected Area, UNEP/CBD/COP/DEC/VIII/24, 15 June 2006, para. 38.

87

For an analysis of MPAs in the Mediterranean Sea, see T. Scovazzi, ‘New International Instruments for Marine Protected Areas in the Mediterranean Sea’, in A. Strati, Unresolved Issues and New Challenges to the

Law of the Sea: Time Before and Time After (Leiden and Boston, Brill/Nijhoff, 2006), pp. 109–120. 88 89

The text of the 1995 Protocol is reproduced in Scovazzi, Marine Specially Protected Areas, p. 163. Article 2(1) of the 1995 Protocol.

424 Protection of Community Interests at Sea SPAs may be established in the marine and coastal zones subject to its sovereignty or jurisdiction pursuant to Article 5(1) of the 1995 Protocol. Under Article 9(1) of the Protocol, SPAMIs may be established in: ‘ (a) the marine and coastal zones subject to the sovereignty

zones partly or wholly on the high seas

or jurisdiction of the Parties; (b)

’.

90

Under Article

8 (1), the Parties are required to draw up a ‘List of specially protected areas of Mediterranean importance’ (SPAMI List) in order to promote cooperation in the management and conservation of natural areas, as well as in the protection of threatened species and their habitats. In 2001, the

first twelve SPAMIs have been inscribed in the List, and the Pelagos Sanctuary,

which was jointly proposed by the three States concerned, covered areas of the high seas. The

Pelagos

Sanctuary

relies

on

the

1999

Agreement

on

the

Creation

in

91

the

Mediterranean Sea of a Sanctuary for Marine Mammals (hereinafter the 1999 Sanctuary Agreement).

92

Article 2 of the Agreement calls for the Parties to establish a marine

sanctuary within the area of the Mediterranean Sea as de

fined in Article 3, whose biological

diversity and richness represent an indispensable attribute for the protection of marine mammals and their habitats. Under Article 3, ‘ the sanctuary is composed of maritime areas situated within the internal waters and territorial seas of the French Republic, the Italian Republic and the Principality of Monaco, as well as portions of adjacent high seas ’.

93

The

Sanctuary extends over 96,000 square kilometres and is inhabited by the eight cetacean 94

species regularly found in the Mediterranean.

Within the Sanctuary, the Parties shall

prohibit any deliberate taking or intentional disturbance of marine mammals. Furthermore, Article 14(2) provides:

In the other parts of the sanctuary [on the high seas], each of the State Parties is responsible for the application of the provisions of the present Agreement with respect to ships

fl

ying its

fl

ag as

well as, within the limits provided for by the rules of international law, with respect to ships

fl

90 92

ying the

fl

ag of third States.

Emphasis added.

91

Scovazzi, ‘New International Instruments’, pp. 114– 115.

Entered into force 21 February 2002. For an analysis of this Agreement, along with the text, see Scovazzi, ‘The Mediterranean Marine Mammals Sanctuary’, pp. 132–145.

93

In 2004, France established an ecological protection zone in the Mediterranean Sea in accordance with La loi

±

2003–346 of 15 April 2003 and Décret n

±

was transformed to the EEZ. Décret n

2004– 33 of 8 January 2004. In 2012, the ecological protected zone

2012–1148 of 12 October 2012. See L. Lucchini and M. Voelckel, ‘Une

nouvelle zone dans une mer semi-fermée: le décret français du 12 octobre 2012 instaurant une zone économique en Méditerranée’ (2012) 17

Annuaire du droit de la mer

, pp. 267 –284. In 2006, Italy established

an ecological protection zone beyond the outer limit of the territorial sea. Law 61 on the Establishment of an Ecological Protection Zone beyond the Outer Limit of the Territorial Sea 8 February 2006. As a consequence, the French-Italian-Monégasque Sanctuary at present overlaps the French EEZ and Italian ecological protection zone. 94

These species are: the

fin whale, the sperm whale, Cuvier s beaked whale, the long-fi nned pilot whale, the ’

striped dolphin, the common dolphin, the bottlenose dolphin and Risso’s dolphin. Scovazzi, ‘New International Instruments’, p. 115.

425 Conservation of Marine Biological Diversity This provision appears to empower the States Parties to enforce the provisions of the 1999 Sanctuary Agreement on vessels of third States ‘ within the limits established by the rules of international law’ . A question thus arises of whether this provision might not be contrary to the fundamental rule of treaty law,

res inter alios acta. In this regard, it must be

recalled that even though the areas covered by these agreements remain high seas, they will fall under the

potential EEZ of either of the Parties to the Convention. Consequently, the potential jurisdiction over living resources, although technically those

coastal States have

areas remain the high seas. By ratifying the Convention, it may be considered that the States Parties are declaring an exercise of their jurisdiction over conservation of living resources in the areas concerned. In this case, the coastal States are only exercising jurisdiction to a lesser degree than in an EEZ. 95

Those who can do more can also do less.

A case in point is the EFZ. The concept of an

EFZ is more limited than that of an EEZ in the sense that an EFZ relates only to

fisheries,

whereas the concept of the EEZ also includes activities in the seabed. While several States have created 200-nautical-mile EFZs, the validity of such a zone has not been disputed. By analogy, there appears to be scope to argue that a coastal State may exercise the same jurisdiction which is exercisable in an EEZ, i.e. jurisdiction with regard to the conservation of marine biological diversity, in the marine spaces within 200 nautical miles even if technically the spaces remain the high seas. Following this interpretation, arguably at least, the coastal State may be entitled to establish MPAs on the high seas in the broad sense.

(b) MPAs on the High Seas in a Strict Sense In 2009, the CCAMLR established the MPA on the high seas around the South Orkney

first MPA entirely located on the high of fishing activities shall be prohibited

Islands in the Southern Ocean. This is said to be the seas in the area regulated by CCAMLR. All types

within the MPA of 94,000 square kilometres. No discharges and no dumping of any type of waste by any

fishing

96

vessel shall take place within the MPA.

Further to this, between

2010 and 2012, seven high seas MPAs were established in the North-East Atlantic under the OSPAR Convention.

97

These MPAs seek to, inter alia, protect the range of habitats and

ecosystems and prevent loss of biodiversity.

95

T. Scovazzi, ‘Marine Protected Areas on the High Seas: Some Legal and Policy Considerations’ (2004) 19

IJMCL, p. 15. 96

CCAMLR, Conservation Measures 91–03 (2009), Protection of the South Orkney Islands Southern Shelf. See also CCMLR, ‘CCAMLR Strengthens Marine Conservation in Antarctica’, 2 November 2012, available at: www.ccamlr.org/en/organisation/ccamlr-strengthens-marine-conservation-antarctica-1. Furthermore, in 2017, CCAMLR established the world’s largest MPA in the Ross Sea. The Ross Sea MPA is 1.55 million km

2

fi c area and conservation measures are detailed in CCAMLR,

and came into force 1 December 2017. The speci

Conservation Measure 91-05 (2016), Ross Sea Region Marine Protected Area. 97

These MPAs are: (i) Milne Seamount Complex Marine Protected Area, (ii) Charlie-Gibbs South Marine Protected Area, (iii) Altair Seamount High Seas Marine Protected Area, (iv) Antialtair Seamount High Seas Marine Protected Area, (v) Josephine Seamount High Seas Marine Protected Area, (vi) MAR North of the Azores High Seas Marine Protected Area, and (vii) Charlie-Gibbs North High Seas MPA. For the location of these MPAs, see OSPAR Commission,

2016 Status Report on the OSPAR Network of Marine Protected Areas

(London, OSPAR Commission, 2017), pp. 5 and 14.

426 Protection of Community Interests at Sea By creating MPAs on the high seas, Contracting Parties to the OSPAR Convention, along with the supervision through the OSPAR Commission, attempt to collectively protect marine biological diversity as an advocate of the international community as a whole. Hence there may be some scope for arguing that the management of the OSPAR MPAs in areas beyond national jurisdiction through the OSPAR Convention can be considered as an example of the institutional application of the law of dédoublement fonctionnel.

98

While the

establishment of MPAs on the high seas in a strict sense is a welcome development for the conservation of marine biological diversity, there are several issues which need careful consideration. Six points in particular merit highlighting. (i)

Given

that

no

State

can

claim

territorial

parts of the high seas in a strict sense, legal justi to be more dif

ficult.

99

sovereignty

fication

or

sovereign

rights

over

for creating MPAs there seems

It is true that States are obliged to protect and preserve the

marine environment, including rare or fragile ecosystems, under Articles 192 and 194(5) of the LOSC. States are also under the obligation to cooperate with each other in the conservation and management of living resources in the areas of the high seas under Articles 117 and 118. However, it is debatable whether these general obligations directly provide for any right of States with regard to the establishment of MPAs on the high seas in a strict sense.

100

(ii) Even if some States agreed to conserve marine biological diversity on the high seas by establishing MPAs, such an agreement could not be applicable to ships

flying

the

flag

of non-parties. Furthermore, the establishment of MPAs on the high seas in a strict sense may entail the risk of limiting freedoms of the high seas, such as the freedom of

fishing and of fic research. Should MPAs on the high seas affect the navigation of vessels including

navigation, freedom to lay submarine cables and pipelines, freedom of scienti

submarines, for instance, the creation of such MPAs will encounter strong opposition from 101

naval powers.

(iii) Presently there are no objective criteria for the selection of MPAs. scienti

98

102

Given that

fic knowledge on biological diversity in areas beyond national jurisdiction remains

Further, see Y. Tanaka, ‘The Institutional Application of the Law of Dédoublement Fonctionnel in Marine Environmental Protection: A Critical Assessment of Regional Regimes’ (2014) 57 GYIL, pp. 143 –179.

99

See also Scovazzi, ‘Marine Protected Areas on the High Seas’, p. 5. United Nations Open-Ended Informal Consultative Process on Oceans and the Law of the Sea, Protection and Conservation of Vulnerable Marine Ecosystems in Areas Beyond National Jurisdiction, Submitted by the Delegation of Norway, A/AC.259/10, 4 June 2003, p. 2, paras. 3–4 (Norway).

100

The Ad Hoc Technical Expert Group on Protected Areas (AHTEG) has considered that high-seas areas presented a special situation in which existing legal instruments, including the Rio Convention, did not necessarily provide an adequate basis for the establishment of protected areas. Convention on Biological Diversity, AHTEG, The Role of Protected Areas within the Convention on Biological Diversity, UNEP/CBD/ AHTEG-PA/1/INF/1, 6 June 2003, para. 57.

101

S. Kaye, ‘Implementing High Seas Biodiversity Conservation: Global Geopolitical Considerations’ (2004) 28 Marine Policy, pp. 223–224.

102

In relation to this, it may be relevant to note that at the ninth COP in 2008, the Parties to the Rio Convention

fic criteria to identify ecologically or biologically significant areas and fi ve fic guidance for designating networks of MPAs. UNEP/CBD/COP/DEC/IX/20, 9 October 2008.

adopted a set of seven scienti scienti

427 Conservation of Marine Biological Diversity

limited, the validity of the site selection of MPAs on the high seas may be open to challenge. In fact, some argue that the OSPAR MPA network lacks ecological coherence.103 It must also be noted that non-Contracting Parties did not participate in any decision-making process with regard to the site selection of MPAs. This situation may constitute a legitimacy deficit of the procedure for determining the location of MPAs. (iv) A further issue to be considered concerns the relationship between the OSPAR high seas MPAs and the coastal State s rights over the continental shelf beyond 200 nautical miles. In the North-East Atlantic, five OSPAR MPAs MPAs in the Altair Seamount, the Antialtair Seamount, the Josephine Seamount, the MAR North of the Azores and the Charlie-Gibbs North High Seas MPA overlap the coastal States (Portugal and Iceland) claim over the continental shelf beyond 200 nautical miles. An issue thus arises with regard to the relationship between the OSPAR MPAs and the claims over the continental shelf beyond 200 nautical miles. (v) Where OSPAR MPAs are located in the area beyond the limits of the outer continental shelf, the seabed and its subsoil of the MPAs are the Area, which is the common heritage of mankind. Here there is a need to secure positive coordination between the International Seabed Authority and OSPAR with a view to protecting biological diversity of OSPAR MPAs in an integrated manner. In this regard, the MOU between the OSPAR Commission and the International Seabed Authority of 2010 (hereinafter the 2010 Memorandum) merits particular attention. 104 Under the 2010 Memorandum, specifically the OSPAR Commission and the Authority decided, inter alia, to encourage the conduct of marine scientific research in the sea areas of the North-East Atlantic that are located beyond national jurisdiction and to cooperate in the collection of environmental data and information.105 (vi) The regulation of fishing falls outside the scope of the OSPAR Convention and the jurisdiction of the Authority, although fishing is a major threat to marine ecosystems. In this regard, it is to be noted that the NEAFC created five closure areas for the protection of vulnerable marine ecosystems in April 2009.106 Some parts of the OSPAR MPAs overlap the closure areas of NEAFC. 107 Accordingly, there is a need to secure coordination and cooperation between the OSPAR Convention and NEAFC. In fact, a member of NEAFC participated in the OSPAR MPA group in the selection process of closures in the North-East Atlantic. The collaboration can be said to contribute to enhance a geographical linkage between the OSPAR MPAs and the closures established by NEAFC.108 In 2008, NEAFC and the OSPAR Commission adopted an MOU. The MOU recognised that NEAFC and the OSPAR ’

–

–

103 104 106

’

B. C. O Leary et al., The First Network of Marine Protected Areas (MPAs) in the High Seas: The Process, the Challenges and Where Next (2012) 36 Marine105Policy, p. 603. ISBA/16/AINF/2, 12 March 2010, Annex. Ibid., paras. 2 and 3 of the operative part. Recommendation by the North East Atlantic Fisheries Commission in Accordance with Article 5 of the Convention on Future Multilateral Cooperation in Northeast Atlantic Fisheries on the Protection of Vulnerable Marine Ecosystems from Signi ficant Adverse Impacts in the NEAFC Regulatory Area, decided on 26 April 2009, available at: www.neafc.org/system/files/Rec%20VME%20fi nal.pdf. This measure will be in force between 16 July 2009 and 31 December 2015. See also P. Drankier, Marine Protected Areas in Areas beyond National Jurisdiction (2012) 27 IJMCL, pp. 326 327. See 2012 Status Report on the OSPAR Network of Marine Protected Areas, p. 30, Figure 11. B. C. O Leary et al., The First Network of Marine Protected Areas , p. 600. ’

‘

’

‘

107 108

’

’

‘

–

’

428

Protection of Community Interests at Sea Commission have complementary competences and responsibilities for

fisheries manage-

ment and environmental protection, respectively, within the North-East Atlantic including in areas beyond national jurisdiction.

109

In 2014, the OSPAR Commission and NEAFC

further established Collective Arrangement,

110

which aims to provide a collective and

multilateral forum composed of all competent entities addressing the management of human activities in the North-East Atlantic.

4.4 Limits of MPAs

While MPAs are increasingly incorporated into treaties respecting conservation of marine biological diversity, the effectiveness of MPAs is not free from controversy. From a legal viewpoint, at least three obstacles must be identi The

fied.

111

first obstacle involves the lack of interlinkage between the MPAs for the conservation of

marine biological diversity and the regulation of marine pollution. The protection of the environment from pollution is a prerequisite for the conservation of marine biological diversity. The regulation of land-based pollution is particularly important because it mainly affects coastal waters, which are sites of high biological diversity.

112

However, the establishment of

MPAs intended to conserve marine biological diversity cannot of itself protect marine biological diversity from marine pollution.

113

Accordingly, MPAs for the conservation of marine bio-

logical diversity must be combined with the regulation of marine pollution in an integrated manner. Usually, however, the regulation of marine pollution is beyond the scope of the MPAs.

ficulty concerns the adverse impact of climate change on marine biological

The second dif

diversity. The marine environment is sensitive to climate and atmospheric changes. Nonetheless, MPAs cannot, in themselves, prevent adverse impacts upon marine biological diversity by climate change. Accordingly, prevention of climate change is also needed in order to halt the degradation of marine biological diversity. Third, there is little doubt that

fishing activities are one of the major threats to marine however, the regulation of fisheries falls

biological diversity. With few exceptions,

114

outside the scope of treaties relating to the conservation of marine biological diversity;

109

MOU between the North East Atlantic Fisheries Commission (NEAFC) and the OSPAR Commission, available at: www.ospar.org/site/assets/

110

files/1357/mou_neafc_ospar.pdf.

Collective Arrangement Between Competent International Organisations on Cooperation and Coordination Regarding Selected Areas in Areas Beyond National Jurisdiction in the North-East Atlantic (OSPAR Agreement 2014-09), available at: www.ospar.org/documents?v=33030. See also S. Ásmundsson and E. Corcoran,

OSPAR 111 112

Tanaka,

A Dual Approach,

S. Kuwabara,

Sources 113

Information Paper on the Process of Forming a Cooperative Mechanism Between NEAFC and

(NEAFC and OSPAR, 2015). pp. 191– 197.

The Legal Regime of Protection of the Mediterranean against Pollution from Land-Based

(Dublin, Tycooly, 1984), p. xvii.

D. Freestone, ‘The Conservation of Marine Ecosystems under International Law’, in C. Redgwell and M. J. Bowman (eds.),

International Law and the Conservation of Biological Diversity

(The Hague,

Kluwer, 1996), p. 94. 114

Article 5(2)(d) of the 1990 Protocol Concerning Specially Protected Areas and Wildlife to the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region; Article 10(d) of the 1985 Protocol Concerning Protected Areas and Wild Fauna and Flora in the Eastern African Region.

429 Conservation of Marine Biological Diversity

fisheries treaties do not focus on the conservation of marine biological diverfields. Positive coordination between MPAs and the regulation of fisheries will be increasingly important in order conversely,

sity. As a consequence, there is a disjunction between the two legal

to effectively conserve marine biological diversity.

115

5 CONCLUSIONS The matters considered in this chapter can be summarised under

five points.

(i) In examining treaties respecting conservation of (marine) biological diversity, at least three approaches can be identi and the activity-speci

fied:

fic

the regional approach, the species-speci

approach

fic approach. Further to this, the establishment of a global framework fill possible legal lacunae in the field of conservation of (marine)

is needed in order to biological diversity.

(ii) Although the LOSC provides for a global legal framework for conservation of marine species, it contains only a few provisions involving marine biological diversity. Arguably the traditional approaches of the LOSC, namely, the zonal management approach and the species-speci

fic approach, are inadequate to conserve marine biological diversity because

they pay little attention to ecological interactions between marine species. (iii) The Rio Convention represents the key instrument for establishing a global legal framework for conservation of biological diversity. Signi

ficantly, the rules of the Conven-

tion apply not only to conservation of terrestrial biological diversity but also to that of marine biological diversity. On the other hand, the effectiveness of the Rio Convention seems to be quali

• •

fied by three points:

weak obligations with regard to transboundary damage to biological diversity, weak obligations concerning conservation of biological diversity in areas beyond the limits of national jurisdiction, and

•

wide discretion of Contracting Parties.

Furthermore, due to economic, technological and ecological divergence in the world, regional treaties which tailor more speci region have a valuable role in this

field.

fic rules to

meet the needs of States in a certain

(iv) The establishment of MPAs is increasingly being incorporated into treaties relating to conservation of biological diversity. There appears to be general agreement that MPAs have a valuable role to play in conservation of marine biological diversity. However, in view of

115

UN General Assembly Resolution 59/25, adopted on 17 November 2004, calls upon regional

fi sheries

management organisations to adopt appropriate conservation measures to address the impact of destructive

fishing practices, including bottom trawling that has adverse impacts on vulnerable marine

ecosystems. A/RES/59/25, p. 13, para. 67. In addition, coordination between the Antarctic Treaty system and CCAMLR Convention merits attention. See J. Harrison, Saving the Oceans through Law: The

International Legal Framework for the Protection of the Marine Environment (Oxford University Press, 2017), pp. 281

–282; Information on CCAMLR and its links to the Antarctic Treaty, available at:

www.ccamlr.org/en/system/

files/e-linkages_1.pdf.

430 Protection of Community Interests at Sea enhancing the ef

ficacy of MPAs, there will be a need to enhance the interlinkage between

MPAs on the one hand and the protection of the marine environment, prevention of climate change and the regulation of

fisheries on the other hand.

(v) The legality of MPAs on the high seas should be examined by dividing such MPAs into two categories. On the one hand, it may be possible to establish MPAs on the high seas in a broad sense because they are located in the potential EEZ of the coastal State. On the other hand, the legality of the creation of MPAs on the high seas in a strict sense needs careful consideration with regard to the legitimacy of procedures for selecting the location and compatibility with the freedom of the seas.

FURTHER READING 1 General F. Francioni and T. Scovazzi (eds.), Biotechnology and International Law (Oxford and Portland, OR, Hart Publishing, 2006). D. Freestone, D. Johnson, J. Ardron, M. Killerlain, K. Morrison and S. Unger, ‘Can Existing Institutions Protect Biodiversity in Areas beyond National Jurisdiction? Experiences from Two On-going Processes’ (2014) 49 Marine Policy, pp. 167–175. K. M. Gjerde, ‘Challenges to Protecting the Marine Environment beyond National Jurisdiction’, in D. Freestone (ed.), The 1982 Law of the Sea Convention at 30: Success, Challenges and New Agendas (Leiden, Brill/Nijhoff, 2013), pp. 165 –173. E. Goodwin, ‘Threatened Species and Vulnerable Marine Ecosystems’, in Oxford Handbook, pp. 799–824. R. Rayfuse, ‘Precaution and the Protection of Marine Biodiversity in Areas beyond National Jurisdiction’, in D. Freestone (ed.), The 1982 Law of the Sea Convention at 30: Success, Challenges and New Agendas (Leiden, Brill/Nijhoff, 2013), pp. 99–107. Y. Tanaka, A Dual Approach to Ocean Governance: The Cases of Zonal and Integrated Management in International Law of the Sea (Farnham, Ashgate, 2008) (Chapters 4 and 5). R. M. Warner, ‘Conserving Marine Biodiversity in Areas Beyond National Jurisdiction: CoEvolution and Interaction with the Law of the Sea’ , in Oxford Handbook, pp. 752 –776. ‘Symposium on Governing High Seas Biodiversity ’ (2018) 112 AJIL Unbound, pp. 118 –154.

2 Marine Protected Areas R. Churchill, ‘The Growing Establishment of High Seas Marine Protected Areas: Implications for Shipping ’, in R. Caddell and R. Thomas (eds.), Shipping, Law and the Marine Environment in the 21st Century: Emerging Challenges for the Law of the Sea

– Legal Implications and

Liabilities (Oxford, Lawtext Publishing, 2013), pp. 53 –88. V. H. Dang, Marine Protected Areas Network in the South China Sea: Changing a Course for Future Cooperation (Leiden, Brill/Nijhoff, 2014). P. Drankier, ‘Marine Protected Areas in Areas beyond National Jurisdiction’ (2012) 27 IJMCL , pp. 291–350. K. M. Gjerde and A. Rulska-Domino, ‘Marine Protected Areas beyond National Jurisdiction: Some Practical Perspectives for Moving Ahead’ (2012) 27 IJMCL , pp. 351–373.

431 Conservation of Marine Biological Diversity C. Hislop and J. Jabour, ‘Quality Counts: High Seas Marine Protected Areas in the Southern Ocean’ (2015) 29 Ocean Yearbook, pp. 166–191. I. U. Jakobsen, Marine Protected Areas in International Law: An Arctic Perspective (Leiden, Brill/ Nijhoff, 2016). B. C. O ’Leary et al., ‘ The First Network of Marine Protected Areas (MPAs) in the High Seas: The Process, the Challenges and Where Next ’ (2012) 36 Marine Policy, pp. 598 –605. N. Matz-Lück and J. Fuchs, ‘The Impact of OSPAR on Protected Area Management beyond National Jurisdiction: Effective Regional Cooperation or a Network of Paper Parks?’ (2014) 49 Marine Policy, pp. 155 –166. J. Roberts, Marine Environment Protection and Biodiversity Conservation: The Application and Future Development of the IMO’s Particularly Sensitive Sea Area Concept (Berlin, Springer, 2007). K. N. Scott, ‘Conservation on the High Seas: Developing the Concept of the High Seas Marine Protected Areas ’, in D. Freestone (ed.), The 1982 Law of the Sea Convention at 30: Success, Challenges and New Agendas (Leiden, Brill/Nijhoff, 2013), pp. 175–183. ‘Marine Protected Areas in the Southern Ocean’ , in E. J. Molenaar, A. G. Oude Elferink and

D. R. Rothwell (eds.), The Law of the Sea and the Polar Regions: Interactions between Global and Regional Regimes (Leiden, Brill/Nijhoff, 2013), pp. 113–137. T. Scovazzi, ‘Marine Protected Areas on the High Seas: Some Legal and Policy Considerations ’ (2004) 19 IJMCL, pp. 1 –17. H. Thiel, ‘Approaches to the Establishment of Protected Areas on the High Seas ’, in A. Kirchner (ed.), International Marine Environmental Law (The Hague, Kluwer, 2003), pp. 169–192. G. Wright, J. Rochette and E. Druel, ‘Marine Protected Areas in Areas Beyond National Jurisdiction’, in R. Rayfuse (ed.), Research Handbook on International Marine Environmental Law (Cheltenham, Edward Elgar, 2015), pp. 272–290.

10 Marine Scienti

fic Research

Main Issues

Ocean governance must be based on a sound scienti

fic

understanding of the marine

fic

environment. Thus it may be argued that the freedom of marine scienti prerequisite of ocean governance. However, marine scienti

fic

research is a

research or other survey

activities in the offshore areas may affect economic and security interests of coastal States. In particular, military survey activities in the EEZ of another State have raised highly sensitive issues between surveying and coastal States. Hence there is a need to achieve a balance between the freedom of marine scienti

fic research and the protection of interests of

coastal States. Against that background, this chapter will address particularly the following issues. (i) What is marine scienti

fic research?

(ii) How is it possible to reconcile the freedom of marine scienti

fic research with the

protection of interests of coastal States? (iii) Is it possible to carry out hydrographic and military survey activities in the EEZ of another State?

fic research?

(iv) How is it possible to ensure international cooperation in marine scienti

(v) Why should the transfer of technology be promoted in ocean governance?

1 INTRODUCTION Marine scienti

fic

research is a foundation of ocean governance in the sense that rules

governing the use of the ocean must be based on the sound scienti

fic understanding of the

marine environment. Furthermore, marine science can make an important contribution to eliminating poverty, ensuring food security, supporting human economic activity, conserv1

ing marine living resources and environment, and helping predict natural disasters.

1

Thus

United Nations, Report of the Secretary-General, Oceans and the Law of the Sea Addendum, A/66/70/ Add. 1, 11 April 2011, para. 208; UN General Assembly Resolution, Oceans and the Law of the Sea, 4 January 2018, A/RES/72/73, Preamble.

432

433

Marine Scientific Research marine scienti

fic research is a significant issue in the law of the sea. Indeed, the develop-

ment of marine science and the law of the sea are intimately intertwined. In this regard, three patterns can be identi

fied.

fi c research is one of the catalysts for the development of the law of

First, marine scienti

the sea. This is highlighted by the discovery of manganese nodules in the deep seabed and the establishment of the legal regime governing the Area.

2

fic research provides essential data for the implementation of rules of the law of the sea. For instance, the best available scienti fic data relating to marine species is a prerequisite in order to determine MSY and TAC. Marine scientific research is Second, marine scienti

3

also crucial in the application of the ecosystem and precautionary approaches since the application of those approaches must be based on reliable scienti

fic data.

Third, the law of the sea may give an impetus to develop marine scienti

fic research. An

example can be found in the recent progress of seabed research with a view to collecting geological and geomorphological data necessary for the identi the continental shelf beyond 200 nautical miles.

4

fication of the outer limits of

The claim over the continental shelf

beyond 200 nautical miles encourages coastal States to investigate the seabed and subsoil of the continental margin. International law regulating marine scienti

fic research rests on the tension between the

freedom of such research and the protection of interests of coastal States. On the one hand,

fic research. On the other hand, fic research may raise particular sensitivities associated with the economic,

freedom is a prerequisite to developing marine scienti marine scienti

social and security interests of coastal States. A key question thus arises as to how it is possible to reconcile the freedom of marine scienti

fic research with the safeguarding of the

interests of coastal States. With this question as a backdrop, this chapter will examine the principal legal issues with regard to marine scienti

fic research.

2 THE CONCEPT OF MARINE SCIENTIFIC RESEARCH As a preliminary consideration, the concept of marine scienti ined.

5

scienti

The LOSC contains no de

fic

having oceans.

finition

fined

research ’ may be de

fic

of marine scienti

as any scienti

fic

fic research must

research. In general, ‘marine

study or related experimental work

the marine environment as its object which is designed to increase knowledge of the

6

fic

As the marine environment contains marine life, the concept of marine scienti

research covers any scienti

fic

investigation, however and wherever performed, which

concerns the marine environment as well as its organisms. However, scienti

2 4 5

See Chapter 5, section 3.1 of this book.

3

A. H. A. Soons,

research

fi c Research , in Oxford Handbook,

Generally on this issue, see T. Stephens and D. R. Rothwell, ‘Marine Scienti

et seq.

fic

See Chapter 7, section 3.2 of this book.

See Chapter 4, section 4.3 of this book.

pp. 561 6

be exam-

’

Marine Scientific Research and the Law of the Sea (Antwerp, Kluwer, 1982), pp. 6–7 and Encyclopedia of Public International Law

p. 124; T. Treves, ‘Marine Research’, in R. Bernhardt (ed.), (Amsterdam, Elsevier, 1997), p. 295.

434 Protection of Community Interests at Sea not concerning the marine environment as its object, such as astronomical observations carried out at sea, is not considered marine scienti Scienti

fic

research by the law of the sea.

7

fic research undertaken outside the surface, water column, seabed or subsoil of the

oceans, such as remote sensing from satellites, is not addressed by the LOSC. of marine meteorological data is not marine scienti Convention.

9

8

The collection

fic research regulated by Part XIII of the

In addition, cable route surveying that precedes the actual laying of submar-

ine cables is not subject to the legal regime governing marine scienti The concept of marine scienti

fic research.

10

fic research usually covers two types of research, namely,

‘ fundamental’ or ‘pure’ research, and ‘applied ’ or ‘resource-oriented’ research.

11

This dis-

tinction dates back to the 1958 Geneva Convention on the Continental Shelf. Article 5(1) of the Convention forbids the coastal State ‘ any interference with fundamental oceanographic or other scienti

fic research carried out with the intention of open publication , while Article ’

5(8) stipulates that the consent of the coastal State is required in respect of ‘ any research concerning the continental shelf and undertaken there ’. Article 5(8) further provides that the coastal State shall not normally withhold its consent ‘if the request is submitted by a quali

fied institution with a view to purely scientific research into the physical or biological

characteristics of the continental shelf’ . The distinction is maintained in the LOSC. While

the

Convention

on the

Continental

finition of the two types of research,

Shelf

and

the

LOSC

contain

no

precise

fined as research which is carried out exclusively for peaceful purposes and in order to increase scientific knowledge of the marine environment for the benefit of all mankind . Applied research can be considered that which is of direct significance for the exploration and exploitation de

‘fundamental research ’ may be de

‘

’

12

‘

’

‘

of natural resources ’.

13

Examples of applied research include: chemical oceanographic

investigations conducted for the purpose of the regulation of marine pollution; physical oceanographic investigations carried out for the purpose of enhancing long-range weather forecasting; and marine biological investigations for the purpose of the management of marine living resources.

14

The difference between pure research and applied research can be

ascertained by examining whether or not the results of the research project are intended to

7

fi c Research Provisions in the Convention on the Law of the Sea: Issues of

A. H. A. Soons, ‘Marine Scienti

Interpretation’, in E. D. Brown and R. R. Churchill (eds.), The UN Convention on the Law of the Sea: Impact and Implementation, Proceedings of The Law of the Sea Institute, Nineteenth Annual Conference (Honolulu, University of Hawaii, 1987), pp. 366–367. 8

D. R. Rothwell and T. Stephens, The International Law of the Sea, 2nd edn (Oxford and Portland, OR, Hart Publishing, 2016), p. 348.

9

J. A. Roach and R. W. Smith, Excessive Maritime Claims, 3rd edn (Leiden, Brill/Nijhoff, 2012), pp. 437– 438;

fi c Research Cables , in D. R. Burnett, R. C. Beckman and

L. Carter and A. H. A. Soons, ‘Marine Scienti

’

T. M. Davenport (eds.), Submarine Cables: The Handbook of Law and Policy (Leiden, Brill/Nijhoff, 2013), p. 334. 10 11

fic Research, p. 157. fic Research and the Third United Nations 853; Soons, Marine Scienti fic Research,

Roach and Smith, Excessive Maritime Claims, p. 458; Soons, Marine Scienti

fl isch and J. Piccard,

L. Ca

‘The Legal Régime of Marine Scienti

Conference on the Law of the Sea’ (1978) 38 ZaöRV, pp. 848 – pp. 6–7. 12 13

LOSC, Article 246(3). R. R. Churchill and A. V. Lowe, The Law of the Sea, 3rd edn (Manchester University Press, 1999), pp. 405– 406.

14

fi

Soons, Marine Scienti c Research, p. 7.

435

Marine Scientific Research be openly published. Applied research will not meet the test of open publication, for the results of such research will necessarily remain secret. concept of marine scienti scienti

15

In the law of the sea, normally the

fic research covers both kinds of research. The reference to

‘marine

fic research in this chapter also refers to the two types of research. fic research must be distinguished from the exploration of marine natural ’

Marine scienti

resources, because the latter is governed by a legal framework different from that regulating marine scienti

fic

research. While exploration in the EEZ is regulated only by the coastal

State pursuant to Article 56(1)(a), marine scienti

fic research in the EEZ is regulated by the

coastal State in accordance with the provisions of Part XIII. ‘Exploration’ means ‘data-

fic research) concerning natural resources, whether living or non-living, conducted specifically in view of the exploitation (i.e. economic utilisation) of those natural resources . The main difference between marine scientific research and exploration lies in the purpose of the data-collecting activities. While marine scienti fic research seeks to obtain data for scienti fic purposes, exploration aims to collect data for the collecting activities (scienti

’

16

purpose of locating areas where natural resources of possible importance occur. In practice, however, it appears dif sometimes be identical.

ficult

to make this distinction because the techniques used may

17

fic research from other surveys. In

It appears that the LOSC differentiates marine scienti

fact, Articles 19(2)(j) and 40 refer to ‘ any research or survey activities’ .

fines it as:

Article 21(1)(g)

fic research and hydrographic surveys . While the LOSC finition of a hydrographic survey, the International Hydrographic Dictionary

uses the term ‘ marine scienti contains no de

18

’

de

A survey having for its principal purpose the determination of data relating to bodies of water. A hydrographic survey may consist of the determination of one or several of the following

fi

classes of data: depth of water; con

guration and nature of the bottom; directions and force of

currents; heights and times of tides and water stages; and location of topographic features and

fi

19

xed objects for survey and navigation purposes.

The data collected by hydrographic surveys is primarily used to compile nautical charts and other documents in order to ensure the safety of navigation and facilitate other maritime activities. While hydrographic surveys are normally carried out for peaceful purposes, data collected by such surveys can also be used for military purposes. Thus the distinction between marine scienti

fic research, hydrographic survey and military survey is not always

clear-cut.

15 16 18

Ca

flisch and Piccard,

fi c Research , pp. 850

‘The Legal Régime of Marine Scienti

fic Research Provisions , p. 367.

Soons, ‘Marine Scienti

’

’

17

–851.

Soons, Marine Scienti

fic Research, pp. 6– 7.

Article 40 applies mutatis mutandis to archipelagic sea lanes passage by virtue of Article 54. According to the Virginia Commentary, ‘research and survey activities ’ include all kinds of research and survey activities. Virginia Commentary, vol. 2, p. 176.

19

IHO, Hydrographic Dictionary, Part I, vol. I, 5th edn (Monaco, 1994), p. 237.

436

Protection of Community Interests at Sea

3 REGULATION OF MARINE SCIENTIFIC RESEARCH IN THE LOSC

3.1 General Considerations

The LOSC devoted Part XIII of the Convention to marine scienti

fic research. The opening

provision, i.e. Article 238, provides:

All States, irrespective of their geographical location, and competent international

fi

organizations have the right to conduct marine scienti

c research subject to the rights and

duties of other States as provided for in this Convention.

This provision makes clear that ‘ all States’, including land-locked and geographically disadvantaged States as well as non-Party States to the LOSC, have the right to conduct marine scienti

fic research.

Furthermore, Article 238 makes it explicit that international organisations have the right to carry out marine scienti engaged

upon

marine

fic

scienti

research. In fact, various international organisations are

fic

research.

Examples

of

marine

science

include: the International Council for the Exploration of the Sea (ICES), mental Oceanographic Commission of UNESCO (IOC) 22

Organization (IHO). ti

fic

The FAO also undertakes

21

20

organisations

the Intergovern-

and the International Hydrographic

fishery research. The IMO promotes scien-

research with regard to marine pollution. Moreover, several bodies under the UN

fic research. Examples include the Group of fic Aspects of Marine Environmental Protection (GESAMP) and the Intersecretariat Committee on Scientific Programmes relating to Oceanography. In addition, many regional fisheries organisations undertake their own scientific research or promote cooperation and coordination of marine scienti fic research of their Member States. Article 238 is further ampli fied by Article 240, dealing with general principles for the conduct of marine scienti fic research. Those principles comprise: the principle of peaceful purposes, use of appropriate scientific methods, non-interference with other legitimate uses system involve coordination of marine scienti Experts on the Scienti

of the sea and compliance with all relevant regulations in the LOSC. Article 241 further makes it explicit that marine scienti

fic research activities shall not constitute the legal basis

for any claim to any part of the marine environment or its resources. In addition, rules

20

ICES, established in 1902, seeks to coordinate and promote marine research on oceanography, the marine environment, the marine ecosystem, and on living marine resources in the North Atlantic. There are twenty Member States. See www.ices.dk/Pages/default.aspx.

21

The IOC was established in 1960. The principal focus of the IOC is on coordination of oceanographic research programme, global ocean observing system and data management, mitigation of marine natural hazards and support to capacity development. See www.ioc-unesco.org/.

22

The IHO was established in 1921. The objectives of the IHO involve the coordination of the activities of

fices, the greatest possible uniformity in nautical charts and documents, the ficient methods of carrying out and exploiting hydrographic surveys, and the development of the sciences in the field of hydrography and techniques employed in descriptive national hydrographic of

adoption of reliable and ef

oceanography.

437

Marine Scientific Research concerning responsibility and liability arising from marine scienti

fic research are provided

in Article 263.

fi

3.2 Marine Scienti

c Research in Marine Spaces Under National Jurisdiction

The LOSC regulates marine scienti

fic

research according to the legal category of ocean

spaces. As discussed earlier, internal waters and the territorial sea are under the territorial sovereignty of the coastal State. Hence the coastal State has the exclusive right to regulate marine scienti

fic research there. In this regard, Article 245 further provides:

Coastal States, in the exercise of their sovereignty, have the exclusive right to regulate,

fi

authorize and conduct marine scienti

fi

c research in their territorial sea. Marine scienti

c

research therein shall be conducted only with the express consent of and under the conditions set forth by the coastal State.

Thus any research to be conducted in internal waters or the territorial sea by foreign States or by international organisations requires the express consent of the coastal State. Furthermore, Article 21(1)(g) of the LOSC makes clear that the coastal State is entitled to adopt laws and regulations relating to innocent passage through the territorial sea in respect of marine scienti

fic research and hydrographic survey. Article 19(2)(j) of the LOSC stipulates that the

carrying out of research or survey activities in the territorial sea of foreign States is regarded as non-innocent. On the other hand, the collection of data by a ship in passage which is required for the safety of navigation, such as observation of water depth, wind speed and direction, cannot be regarded as either marine scienti activity.

23

fic

research or a survey

fic research in archipelagic waters calls

Likewise, the conduct of marine scienti

for the authorisation of the archipelagic States because archipelagic waters are under the territorial sovereignty of the archipelagic States. In summary, in marine spaces under territorial sovereignty, coastal States enjoy decisive

fic research. In enclosed or semi-enclosed seas, however, bordering States shall endeavour to co-ordinate their scientific research policies and undertake where appropriate joint programmes of scienti fic research in the area under Article 123(c). In the EEZ and on the continental shelf, marine scientific research shall also be conducted powers over marine scienti ‘

’

with the consent of the coastal State. However, coastal States shall, ‘in normal circumstances ’, grant their consent for marine scienti

fic

research projects by other States or

competent international organisations, which are ‘ exclusively for peaceful purposes and

fic knowledge of the marine environment for the bene fit of all marine scienti fic research project is carried out by an international

in order to increase scienti mankind ’.

23 24

Soons,

24

Where a

Marine Scientific Research

, p. 149.

Article 246(3). Under Article 297(2)(a)(i), however, the coastal State is not obliged to accept the submission to the compulsory procedures embodied in Part XV of any disputes arising out of the exercise by the coastal State of a right or discretion in accordance with Article 246.

438 Protection of Community Interests at Sea organisation of which a coastal State is a member, consent is implied, unless that State has expressed any objections within four months of noti

fication

of the project by virtue of

Article 247. Likewise, consent is implied, where the coastal State has not responded to a marine scienti

fic

research project within four months of receipt of the information con-

cerning the project under Article 252. Article 249(1) speci

fies certain conditions that shall be complied with by foreign States or fic research with the approval of

international organisations in undertaking marine scienti the coastal State. Such conditions include:

• • •

ensuring the right of the coastal State to participate in the marine scienti providing the coastal State with the

fic project,

providing access for the coastal State to all data and samples derived from the marine scienti

•

final results and conclusions,

fic research project,

providing the coastal State with an assessment of such data, samples and research results, and

•

ensuring that the research results are made internationally available.

These conditions are an essential element of balancing the interests of both the coastal State and the international marine scienti

fic

community.

25

At the same time, to some extent,

these conditions may contribute to enhancing international cooperation by ensuring the participation of coastal States as well as the publication of results.

26

Under Article 246(5), coastal States may in their discretion withhold their consent to the conduct of a marine scienti

fic research project of another State or competent international

organisation in the EEZ or on the continental shelf of the coastal State if that project:

(a) is of direct signi

ficance for the exploration and exploitation of natural resources, whether

living or non-living; (b) involves drilling into the continental shelf, the use of explosives or the introduction of harmful substances into the marine environment;

fi

(c) involves the construction, operation or use of arti cial islands, installations and structures referred to in articles 60 and 80; (d) contains information communicated pursuant to article 248 regarding the nature and objectives of the project which is inaccurate or if the researching State or competent international organization has outstanding obligations to the coastal State from a prior research project.

However, Article 246(6) provides that coastal States may not exercise their discretion to

fic research projects to be undertaken on the continental shelf beyond 200 nautical miles, outside those speci fic withhold consent under Article 246(5)(a) in respect of marine scienti

25 26

Virginia Commentary, vol. 4, p. 540. It should be noted that the coastal State enjoys full discretion to grant or withhold consent to publication of the research results (LOSC, Articles 246(5) and 249(2)).

439

Marine Scientific Research areas which coastal States may at any time publicly designate as areas in which exploitation or detailed exploratory operations focused on those areas are occurring or will occur

fic areas, coastal States may exercise their discretion to withhold consent concerning marine scienti fic research. within a reasonable period of time. In other words, within the speci

fi

3.3 Marine Scienti

c Research in Marine Spaces Beyond National Jurisdiction

fic research. At the same time, States are fic data on the high seas. In this regard, available scienti fic information relevant to the

On the high seas, all States enjoy freedom of scienti

required to promote the exchange of marine scienti Article 119(2) of the LOSC stipulates that

fish stocks shall be contributed and exchanged on a regular basis through competent international organisations. Scienti fic information should include biological data, the migratory habitats of the species in question, the fishing gear and methods utilised conservation of

in harvesting those species, and the landing of each species, including incidental catches. Considering that statistics on high seas

27

fisheries are still sporadic at best, the exchange of

data is an important condition for the conservation of marine living resources. In the Area, all States, irrespective of their geographical location, and competent international organisations have the right to conduct marine scienti with Part XIII.

28

Marine scienti

fic research in conformity

fic research in the Area must be carried out exclusively for fit of mankind as a whole in conformity with Article 143

peaceful purposes and for the bene

(1) of the LOSC. Article 143(3) requires States Parties to promote international cooperation in marine scienti

fic research in the Area by:

(a) participating in international programmes and encouraging cooperation in marine scienti

fic

research by personnel of different countries and of the Authority; (b) ensuring that programmes are developed through the Authority or other international

fi

organisations as appropriate for the bene t of developing States and technologically less developed States . . . (c) effectively disseminating the results of research and analysis when available, through the Authority or other international channels when appropriate.

Under Article 143(2), the Authority is also required to promote and encourage the conduct of marine scienti

fic research in the Area and to coordinate and disseminate the results of

such research and analysis when available. In relation to this, growing attention is drawn to marine scienti

fic research with regard to

genetic resources in the Area. Evidence suggests that communities surrounding the deepsea benthic ecosystems, in particular hydrothermal vent ecosystems, are threatened primarily by marine scienti

27 29

Virginia Commentary, UN General Assembly,

fic

research as well as bioprospecting.

vol. 3, p. 312.

28

29

Thus, further consideration

LOSC, Article 256.

Oceans and the Law of the Sea: Report of the Secretary-General,

A/59/62, 4 March

2004, p. 62, para. 245. The COP of the Convention on Biological Diversity regarded bioprospecting as ‘the

440

Protection of Community Interests at Sea must be given to the regulation of marine scienti

fic

research in the Area in order to

minimise any impact on the deep seabed ecosystems from scienti

3.4 Regulation of Scienti

While marine scienti

fic investigation.

fi

c Research Installations

fic

research is often carried out

on ships, such

research is also

fic research installations. Thus section 4 of Part XIII is devoted to the regulation of scienti fic research installations. The scientific research instalundertaken by means of scienti

lations or equipment do not possess the status of islands. As a consequence, they have no territorial sea of their own and their presence does not affect maritime delimitations. The basic principle is that the deployment and use of any type of scienti

fic

30

research

installation or equipment in any area of the marine environment are to be subject to the

fic research fic research

same conditions as are prescribed in the LOSC for the conduct of marine scienti in any such area.

31

As a consequence, the deployment and use of scienti

installations or equipment in the territorial sea and the archipelagic waters require the consent of the coastal or archipelagic State. Those installations are subject to the jurisdiction of the coastal or archipelagic State in the territorial sea or the archipelagic waters. The deployment of scienti

fic installations in the EEZ or the continental shelf will also require

the consent of the coastal State. In this regard, a distinction should be made between scienti

fic equipment which is not

fixed to the seabed, such as floating buoys and arti ficial islands, and installations that are fixed to the ocean floor. Where the scientific research being proposed involves the construction or use of arti ficial islands and installations, the coastal State may withhold its consent regardless of the purpose or nature of the research by virtue of Article 246(5)(c). On the other hand, coastal States shall normally grant their consent for the deployment and use

fic installations which are not fixed to the ocean floor for the purposes of pure research. Coastal States may withhold their consent for the deployment of floating scientific of scienti

installations for the purposes of applied research.

32

A related issue involves the legal regulation of unmanned instruments, particularly self-

floating floats

fic research. float is:

and gliders, for marine scienti

Body of Experts on the Law of the Sea, a

According to the IOC Advisory

exploration of biodiversity for commercially valuable genetic and biochemical resources’ or ‘the process of gathering information from the biosphere on the molecular composition of genetic resources for the development of new commercial product’. Fifth COP of the Convention on Biological Diversity, 2000, Progress Report on the Implementation of the Programmes of Work on Biological Diversity of Inland Water Ecosystems, Marine and Coastal Biological Diversity and Forest Biological Diversity, UNEP/CBD/COP/5/INF/

fi fi c research. Report of the Secretary-General, Oceans and the Law of the Sea, U.N. Doc. A/59/62, 4 March 2004, p. 66, para. 261 262. Yet, the distinction between marine scientific research and bioprospecting remains thin in practice. In this regard, see Y. Tanaka, Re flections on the Conservation and 7, 20 April 2000, p. 2, para. 6. According to this de nition, bioprospecting does not constitute marine scienti

–

‘

Sustainable Use of Genetic Resources in the Deep Seabed beyond the Limits of National Jurisdiction’ (2008) 39 ODIL, pp. 132– 133. 30

LOSC, Article 259.

31

LOSC, Article 258.

32

LOSC, Article 246(5)(a).

441

Marine Scientific Research an autonomous instrument used for collection of oceanographic data, which, when deployed descends to a programmable depth where it remains until, at programmed intervals it rises to the ocean surface where its position is determined using satellite technologies and, as may be the case, any oceanographic data collected are transmitted via satellite to a data processing centre for dissemination to users.

33

Autonomous underwater vehicles with a buoyancy engine are often called a glider. Today the use of these devices attracts growing attention. One can take the Argo project as an example. This project seeks to obtain a systematic and complete set of data of the oceans and climate change by means of some 3,800 free-drifting pro

filing floats.

34

It appears that the strict application of the provisions of Part XIII of the LOSC to raises practical dif

ficulties.

Provided that the deployment of

floats

floats

and gliders can be

considered as pure research, the coastal State is obliged to consent to research projects in normal circumstances. Conversely, the coastal State may withhold its consent if the deployment of those devices falls within one of the Article 246(5) exceptions. In any case, once these

ficult to control. It is unpredictable when and where those

devices are deployed, they are dif

devices might enter into the EEZs or territorial seas of foreign States by currents. Hence it appears impractical to obtain prior consent of all potential coastal States before such a

fic research under the LOSC seems to presuppose that marine scienti fic research will be carried out in a specific place, within a situation occurs. The legal regime governing marine scienti

limited time frame and according to advance planning. However, research by means of self-

floating floats is inconsistent with the presumption. Accordingly, the provisions of the LOSC seem not to fit marine scientific research by means of floats and gliders. 35

A particular issue to be examined concerns the regulation of submarine cables for marine scienti

fic

research. Submarine cables can potentially be used for dual purposes: regular

telecommunications data transfer and oceanographic data collection. The use of submarine cables for marine scienti scienti

fic research is simultaneously subject to rules concerning marine

fic research and those concerning submarine cables. It can be argued that submarine

cables actually collecting oceanographic data on the continental shelf of the coastal State should be subject to rules regarding marine scienti

fic

research. Thus the consent of the

coastal State will need to be obtained prior to their laying and operation.

33

36

The use of

Intergovernmental Oceanographic Commission, Reports of Meetings of Experts and Equivalent Bodies,

Advisory Body of Experts on the Law of the Sea (IOC/ABE-LOS) 7th Session, Libreville, Gabon, 19–23 March 2007, p. 5. 34 35

See www.argo.ucsd.edu/. K. Bork, J. Karstensen, M. Visbeck and A. Zimmermann, ‘The Legal Regulation of Floats and Gliders – In Quest of a New Regime?’ (2008) 39 ODIL , pp. 311–312. In June 2008, the IOC adopted Guidelines for the

fi ling Floats in

Implementation of Resolution XX-6 of the IOC Assembly Regarding the Deployment of Pro

the High Seas within the Framework of the Argo Programme. UNESCO Intergovernmental Oceanographic Commission, Executive Council Resolution EC-XLI. 4, available at: http://unesdoc.unesco.org/images/0017/ 001798/179861e.pdf. 36

fic Research Cables , pp. 334

Carter and Soons, ‘Marine Scienti

’

–336.

442 Protection of Community Interests at Sea submarine cables for scienti

fic research in areas beyond national jurisdiction is subject to fic research. 37

the freedom to lay submarine cables and the freedom of marine scienti

4 LEGALITY OF MILITARY AND HYDROGRAPHIC SURVEYS IN THE EEZ The legality of military and hydrographic surveys in another State ’s EEZ without its authorisation remains a highly debatable issue in theory and practice. Military surveys comprise activities undertaken in the ocean and coastal waters involving marine data collection for military purposes. Such surveys may include oceanographic, marine geological, geophysical, chemical, biological and acoustic data.

38

Military surveys raise par-

ticular sensitivities associated with the national security of coastal States. Likewise, a hydrographic survey in another State’ s EEZ raises sensitive issues because such a survey may have economic and commercial value. Indeed, the production of up-todate charts may contribute to stimulate

fishing,

tourism, exploration and exploitation of

marine natural resources. Such charts may be used for the regulation of marine pollution, coastal management, the modernisation of port facilities and coastal engineering. the 1990s, it was dif

39

Before

ficult to conduct a hydrographic survey without the support of adjacent

coastal State(s). After the introduction of the Navstar Global Positioning System (GPS) in 1994 and the later Differential GPS (DGPS), however, it became possible to carry out hydrographic surveys without relying on shore stations in the vicinity of the survey area. Accordingly, it is not a coincidence that hydrographic surveys in the EEZ have raised controversial issues over the last decade.

40

The position of the United States and the United Kingdom is that hydrographic and military surveys may be freely carried out in the EEZ without the authorisation of coastal States.

Indeed,

the

LOSC

distinguishes

marine

scienti

fic

research

from

‘hydrographic

surveys’ and ‘survey activities’ , and it does not provide the coastal State jurisdiction to regulate survey activities outside the territorial sea or archipelagic waters. According to this view, hydrographic and military survey activities are freedoms captured by the expressions

flight

‘ other internationally lawful uses of the sea ’ related to navigation and over

under

41

Article 58(1) and reference to ‘ inter alia’ in Article 87(1) of the LOSC.

By contrast, some coastal States take the position that hydrographic and military survey activities in the EEZ are subject to the regulation of coastal States. China is the leading country advocating this position. According to this position, ‘freedom of navigation and over

flight

’ in the EEZ and the term ‘other internationally lawful uses of the sea’ do not

include the freedom to conduct military and reconnaissance activities in the EEZ of another State. Furthermore, the line of distinction between marine scienti

37 38 39

40

LOSC, Articles 87 and 256.

fic research and a military

Excessive Maritime Claims , 3rd edn (Leiden, Brill/Nijhoff, 2012), p. 417. Ibid., pp. 416– 417; S. Bateman, ‘Hydrographic Surveying in the EEZ: Differences and Overlaps with Marine Scientific Research’ (2005) 29 Marine Policy , pp. 163–174, 169. Ibid., p. 168. Ibid., pp. 163–165; Roach and Smith, Excessive Maritime Claims, pp. 436– 437. J. A. Roach and R. W. Smith,

41

443

Marine Scientific Research survey may be dif scienti

fic

ficult to determine because the means of data collection used in marine

research and military surveys may sometimes be the same and the difference

consists only in the motivation for the survey.

42

As noted, hydrographic surveying in the

EEZ has relevance to the economic development of the coastal State.

43

In reality, the difference of positions between China and the United States has created a series of incidents on this particular issue. For instance, on 23 March 2001, the hydrographic survey ship USNS Bowditch (T-AGS 62) carried out military survey operations in China ’ s claimed EEZ in the Yellow Sea. However, the Bowditch was ordered to leave the EEZ by a Chinese frigate. On 8 March 2009, the ocean surveillance ship USNS Impeccable (T-AGOS 23), which was undertaking military survey activities in China’ s EEZ approximately 75 nautical miles south of Hainan Island in the South China Sea, was surrounded and harassed by

five Chinese vessels. In those incidents, the US government filed a strong 44

protest with the Chinese government.

In 2002, China enacted legislation which explicitly requires that all survey and mapping activities in the territorial air, land or waters, as well as other sea areas under the jurisdiction of the People ’s Republic of China, shall be subject to approval by the Chinese authorities.

45

Some national laws also seem to require prior consent of the coastal State

to carry out ‘ any research ’. For example, the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976 of India provides that without an agreement or a licence, no person, including a foreign government, shall conduct ‘ any research ’ within the EEZ.

46

Likewise, the Territorial Sea and Exclusive Economic Zone Act,

1989, of the United Republic of Tanzania provides that without an agreement, no person shall conduct ‘any research ’ within its EEZ.

47

The Exclusive Economic Zone Act 1984 of

Malaysia stipulates that without authorisation no person shall in the EEZ or on the

fic

continental shelf carry out ‘ any search’ or conduct ‘ any marine scienti addition to this, Guidelines for Navigation and Over

48

research ’ .

In

flight in the Exclusive Economic Zone

state: ‘Hydrographic surveying should only be conducted in the EEZ of another State with the consent of the coastal State.’

42

The United Kingdom’s de

49

finition of military data gathering states that

‘the means of data collection used in

MDG [military data gathering] may sometimes be the same as that used in Marine Scienti

fic Research . This ’

document was reproduced in Bateman, ‘Hydrographic Surveying in the EEZ ’, p. 173. 43

Thus Bateman has argued that hydrographic surveying in an EEZ should come within the jurisdiction of the coastal State. Ibid., p. 169.

44

R. Pedrozo, ‘Close Encounters at Sea: The USNS Impeccable Incident’ (2009) 62 Naval War College Review, pp. 101– 102; Bateman, ‘Hydrographic Surveying in the EEZ’, p. 167.

45

Articles 2 and 7 of Surveying and Mapping Law of the People’s Republic of China (Order of the President No. 75), available at: http://english1.english.gov.cn/laws/2005-10/09/content_75314.htm. See also, Ren Xiaofeng, ‘A Chinese Perspective’ (2005) 29 Marine Policy , pp. 139–146; Zhang Haiwen, ‘Is It Safeguarding the Freedom of Navigation or Maritime Hegemony of the United States? Comments on Paul (Pete) Pedrozo’s Article on Military Activities in the EEZ’ (2010) 9 CJIL, pp. 31–47.

46

Article 7(5). This Act is reproduced in UNDOALOS, The Law of the Sea: National Legislation on the Exclusive

Economic Zone (New York, United Nations, 1993), p. 135. 47 49

Article 10(1)(c). Ibid., p. 385.

48

Article 5(b) and (c). Ibid., p. 186.

flight in the Exclusive Economic Zone, Ocean Policy

EEZ Group 21, Guidelines for Navigation and Over Research Foundation, 16 September 2005, IX(a).

444 Protection of Community Interests at Sea Hydrographic and military survey activities in the EEZ of another State strongly affect interests of naval and coastal States. Due to their highly political nature, it seems unlikely that disputes on this subject will be settled by international courts and tribunals. seems that this question will not be solved in the near future.

50

It also

51

5 INTERNATIONAL COOPERATION IN MARINE SCIENTIFIC RESEARCH Due to the highly complex nature of the ocean, no State would be able to clarify the mechanisms of the oceans alone. Accordingly, it is natural that international cooperation is

fic

required in marine scienti

research. The LOSC devotes section 2 of Part XIII to inter-

fic research. Article 242(1) places a general obligation organisations to cooperate in marine scienti fic research.

national cooperation in marine scienti upon States and international More speci

fically,

Article 243 requires States and competent international organisations

to cooperate ‘ to create favourable conditions for the conduct of marine scienti

fic research in

the marine environment and to integrate the efforts of scientists in studying the essence of phenomena and processes occurring in the marine environment and the interrelations between them ’ . Such cooperation is to be undertaken through the conclusion of international agreements. A recent example is provided by the 2017 Agreement on Enhancing International Arctic Scienti research is further ampli

fic Cooperation.

52

fic

The need for cooperation in marine scienti

fied in Article 255, which requires States to adopt reasonable rules fic research. Article 244 further provides an 53

and procedures to promote marine scienti obligation

to

marine scienti

publish

fic

of UNCLOS III.

and

disseminate

information

research. This obligation is also re

and

flected

knowledge

resulting

from

in Annex VI of the Final Act

54

In this regard, particular attention must be paid to technical and

financial assistance to

fic facilities in developing countries ficient, technical and financial assistance to these countries is imperative for promoting marine scienti fic research. In this regard, Annex VI of the Final Act of UNCLOS III explicitly states that unless urgent measures are taken, the marine scienti fic and developing countries. Considering that marine scienti remain insuf

‘

technological gap between the developed and the developing countries will widen further and thus endanger the very foundations of the new régime ’.

55

Accordingly, Annex VI urges

industrialised countries to assist developing countries in the preparation and implementation of their marine science, technology and ocean service development programmes.

50

56

In its Declaration under Article 298 of the LOSC, China excluded all categories of disputes referred to in Article 298(1)(a)(b) and (c) from compulsory procedures of dispute settlement. A. V. Lowe and S. A. G. Talmon (eds.), The Legal Order of the Oceans: Basic Documents on the Law of the Sea (Oxford, Hart Publishing, 2009), p. 921.

51

E. Franckx, ‘American and Chinese Views on Navigational Rights of Warships’ (2011) 11 CJIL, pp. 187 –206 (in particular p. 199).

52 54

See Chapter 8, section 9.2 of this book.

53

Virginia Commentary, vol. 4, p. 477.

Annex VI is entitled ‘Resolution on Development of National Marine Science, Technology and Ocean Service Infrastructures’.

55

Preamble of Annex VI of the Final Act.

56

Ibid., para. 3.

445

Marine Scientific Research Article 202 of the LOSC explicitly enunciates an obligation respecting scienti

fic

and

technical assistance to developing States in the context of the protection of the marine environment. Such assistance shall include, inter alia: (i) training of their scienti technical

personnel,

(ii)

facilitating

their

participation

in

relevant

fic

international

and pro-

grammes, (iii) supplying them with necessary equipment and facilities, (iv) enhancing their capacity to manufacture such equipment, and (v) giving advice on and developing facilities for research, monitoring, educational and other programmes.

fic research is being promoted by various international institutions. For example, the UN Educational, Scienti fic and Cultural In practice, international cooperation in marine scienti

Organization (UNESCO), through the IOC, is the competent international organisation in the

field of marine scientific research and transfer of marine technology under the LOSC. The IOC has developed many programmes in marine science and technology with a view to empowering developing countries to sustainably use their marine resources.

57

The FAO has

also provided technical assistance and training to strengthen both national capacity in

fisheries science and the knowledge base for implementation of the ecosystem approach to fisheries in developing countries. The Authority established the International Seabed Authority Endowment Fund for Marine Scienti fic Research in the Area. This Fund has 58

facilitated

the

development

developing countries.

of

capacity

through

training

and

technical

assistance

to

59

6 TRANSFER OF TECHNOLOGY

6.1 Transfer of Technology Under the LOSC

The transfer of marine scienti

fic technology occupies an important place in scienti fic and

technical assistance to developing States. In fact, limitations in capacity hinder States, in particular developing States, not only from bene

fiting from oceans and their resources but

also from effectively implementing the LOSC and other relevant treaties. Accordingly, the 2030 Agenda for Sustainable Development sets out to:

increase scienti

fi

c knowledge, develop research capacity and transfer marine technology, taking

into account the Intergovernmental Oceanographic Commission Criteria and Guidelines on the Transfer of Marine Technology, in order to improve ocean health and to enhance the contribution of marine biodiversity to the development of developing countries, in particular 60

small island developing States and least developed countries.

57

UN General Assembly,

Oceans and the Law of the Sea: Report of the Secretary-General,

A/65/69, 29 March

2010, p. 26, para. 100. 58 60

Ibid.,

p. 30, para. 112.

59

Ibid.,

p. 27, para. 104.

UN General Assembly Resolution, 70/1.

Development,

Transforming Our World: The 2030 Agenda for Sustainable

A/RES/70/1, 21 October 2015, p. 24, para. 14.a.

446 Protection of Community Interests at Sea Part XIV of the Convention provides rules with regard to the transfer of technology in a general manner. Part XIV opens with Article 266 which provides a general obligation to promote the development and transfer of marine technology. Article 266(1) places an obligation upon States

to cooperate in

accordance with

their capabilities actively

to

promote the development and transfer of marine science and marine technology on fair and reasonable terms and conditions. Article 266(2) obliges States to promote the development of the marine scienti

fic

and technological capacity of States which may need and

request technical assistance in this

field,

particularly developing States. Article 266(3)

requires States to endeavour to foster favourable economic and legal conditions for the transfer of marine technology for the bene

fit of all parties concerned on an equitable basis.

At the same time, Article 267 requires States to have due regard for all legitimate interests including, inter alia, the rights and duties of holders, suppliers and recipients of maritime technology. This provision seeks to achieve a balance between the interests of the suppliers and those of the recipients of technology.

61

Furthermore, as provided in Article 268(d), the

development of human resources through the training and education of nationals of developing States is also important. To this end, the IMO has established two educational organs, namely, the World Maritime University (1983) and the IMO International Maritime Law Institute (1989). Section 2 of Part XIV provides various duties concerning international cooperation in the transfer of marine technology, such as international cooperation through existing bilateral or multilateral programmes,

62

63

the establishment of generally accepted guidelines

coord-

ination of international programmes through competent international organisations, cooperation between international organisations and the Authority, the Authority in respect of technical assistance in the

65

64

and obligations of

field of marine technology.

66

Section 3 of Part XIV contains several provisions with regard to national and regional marine scienti

fic

fically,

and technological centres. Speci

Article 275 requires States to

promote the establishment, particularly in developing coastal States, of national marine scienti

fic

and technological research centres and the strengthening of existing national

centres in order to advance the conduct of marine scienti

fic research by developing coastal

States. Further to this, Article 276 places an obligation upon States to promote establishment of regional marine scienti

the

fic and technological research centres, particularly fic research by

in developing States, in order to stimulate the conduct of marine scienti

developing States and foster the transfer of marine technology. Finally, section 4, which contains Article 278, provides for cooperation among international organisations referred to in Part XIV and in Part XIII. In addition to Part XIV, the transfer of technology is required in relation to deep seabed activities. Thus Article 144(1) requires the Authority to promote and encourage the transfer to developing States of such technology and scienti the Area so that all States Parties bene

61 64

Virginia Commentary, vol. 4, p. 681. LOSC, Article 272.

65

62

fic knowledge relating to activities in

fit therefrom. To this end, Article 144(2) obliges the LOSC, Article 270.

LOSC, Article 273.

66

63

LOSC, Article 271.

LOSC, Article 274.

447

Marine Scientific Research Authority and States Parties to cooperate in promoting the transfer of such technology and scienti

fic knowledge. Further to this, Article 274 requires the Authority to train nationals of

developing States, to ensure that technical documentation on seabed mining is made available to all States, and to assist such States in the acquisition of technology. As noted earlier, the mandatory transfer of technology under Article 5 of Annex III of the LOSC was disapplied by section 5(2) of the 1994 Implementation Agreement. Instead, section 5(1)(b) of the Agreement allows the Authority to request all or any of the contractors and their respective sponsoring State(s) to cooperate with it in facilitating the acquisition of deep seabed mining technology by the Enterprise or by a developing State(s). Such technology must be acquired ‘ on fair and reasonable commercial terms and conditions, consistent with the effective protection of intellectual property rights ’. As a general rule, section 5(1)(c) of the Agreement requires States Parties to promote international technical and scienti

fic

cooperation with regard to activities in the Area. Furthermore, the transfer of technology is needed for the conservation of marine living resources. In this regard, Article 62(4)(j) obliges nationals of other States

fishing in the EEZ

to comply with the laws and regulations of the coastal State with regard to ‘requirements for the training of personnel and the transfer of

fisheries technology, including enhancefisheries research . Moreover, Article

ment of the coastal State ’ s capability of undertaking

’

202(1) places an obligation upon States, directly or through competent international organisations,

to

promote

programmes

of

scienti

fic,

educational,

technical

and

other

assistance to developing States for the protection and preservation of the marine environment. Such assistance includes, inter alia, training of their scienti

fic and technical person-

nel and supplying them with necessary equipment and facilities.

6.2 IOC Criteria and Guidelines on the Transfer of Marine Technology

In 2003, the Assembly of the IOC adopted criteria and guidelines on the transfer of marine technology. According to the guidelines, marine technology includes: information on marine sciences, manuals, sampling and methodology equipment, observation facilities and equipment, equipment for in situ and laboratory observations, computer and computer software, and expertise and analytical methods related to marine scienti observation.

fic

research and

67

The key criterion is that the transfer of marine technology should enable all parties concerned to bene

fit

on an equitable basis from developments in marine science-related

activities, in particular those aimed at stimulating the social and economic contexts in developing States. In conducting a transfer of marine technology, due regard should be given to, inter alia, the needs and interests of developing countries, particularly land-locked and geographically disadvantaged States as well as other developing States which have not been able to establish or develop their own capabilities in marine sciences.

67

IOC Guidelines, A.2.

68

Ibid., B.(c)(i).

68

448 Protection of Community Interests at Sea As for implementation of the guidelines, the IOC should establish and coordinate a clearing-house mechanism for the transfer of marine technology in order to provide interested users in Member States with direct and rapid access to relevant sources of information and scienti

fic

and technical expertise in the transfer of marine technol-

fi c,

ogy, as well as to facilitate effective scienti to that end.

69

fi nancial

cooperation

Any Member State may submit to the IOC Secretariat a transfer of

marine technology application. and forward it to the identi

70

fied

The IOC Secretariat will examine the application donor or donors. Furthermore, the IOC Secretariat

facilitates contracts between the identi State.

technical and

fied

donor or donors and the recipient Member

71

7 CONCLUSIONS From the matters considered in this chapter, the following conclusions can be drawn.

fic research may contribute to promote scientific knowledge of the oceans and to the bene fit of mankind. On the other hand, such research (i) On the one hand, marine scienti

may affect the economic and security interests of States at the same time. Thus tension arises between coastal States which seek to regulate research activities and researching States which attempt to ensure the maximum freedom of marine scienti

fic

research and

other surveys. (ii) The legal framework established in the LOSC relies on a sensitive balance between the

fic research and the protection of interests of the coastal State. Yet the scope of marine scienti fic research under the Convention is not free from controversy. For instance, it is often dif ficult to distinguish marine scienti fic research from exploration of natural resources in practice. The distinction between marine scienti fic research and other surveys also remains obscure. The ambiguity of the concept of marine scienti fic freedom of marine scienti

research may be a source of dispute with regard to coastal State jurisdiction over survey activities in the EEZ. (iii) The legality of hydrographic and military survey activity in the EEZ of another State is a particularly debatable issue. While naval powers advocate the freedom of such surveys in the EEZ of a third State, some coastal States take the position that they are entitled to regulate these activities. So far, the question remains open. (iv) Even the strongest countries with the most developed marine scienti

fic technologies

are not able to clarify the mechanisms of the ocean alone. Thus international cooperation is

fic research may fic cooperation is

needed in order to promote such research. Given that marine scienti contribute to the bene

fit

of mankind as a whole, international scienti

increasingly important. As noted, the LOSC contains many provisions involving international cooperation in the

69

Ibid., C.1(a).

70

Ibid., C.2.

field

71

of marine scienti

fic

research. Such cooperation is also

Ibid., C.3 and C.4(a) and (b).

449

Marine Scientific Research being promoted through international organisations, such as UNESCO, the IOC, the FAO and the Authority. (v) Limitations countries

being

in

technological

able

to

implement

capacity the

create

LOSC

and

a

serious

bene

fit

challenge

from

ocean

to

developing

development.

Accordingly, as explained earlier, the LOSC provides various obligations for the transfer of technology to developing countries. The development of marine science is particularly important with a view to ensuring food and environmental security and eradicating poverty. Thus, further efforts are needed to develop capacity-building of developing States in this

field.

FURTHER READING 1 General H. H. Davies, ‘The Regulation of Marine Scienti

fi c Research: Addressing Challenges, Advancing

Knowledge’ , in R. Warner and S. Kaye (eds.), Routledge Handbook of Maritime Regulation and Enforcement (London, Routledge, 2016), pp. 212–230. M. Gorina-Ysern, An International Regime for Marine Scienti

fic Research (New York, Transnational

Publishers, 2003).

fic Research , in IMLI Manual, vol. I, pp. 396 430. Defining Scienti fic Research: Marine Data Collection , in M. H. Nordquist, J. N. Moore

P. Gragl, ‘Marine Scienti J. A. Roach, ‘

’

–

’

and R. Long (eds.), Law, Science and Ocean Management (Leiden, Brill/Nijhoff, 2007), pp. 541–573. ‘Marine Data Collection: Methods and the Law ’, in M. H. Nordquist, T. T. B. Koh and J. N. Moore

(eds.), Freedom of Seas, Passage Rights and the 1982 Law of the Sea Convention (Leiden, Brill/Nijhoff, 2009), pp. 171–208. A. H. A. Soons, Marine Scienti

fic Research and the Law of the Sea (Antwerp, Kluwer Law and

Taxation Publishers, 1982).

fic

T. Stephens and D. R. Rothwell, ‘ Marine Scienti

Research ’, in Oxford Handbook,

pp. 559–581.

fic Research: A Revised Guide to the Implementation of the Relevant

United Nations, Marine Scienti

Provisions of the United Nations Convention on the Law of the Sea (New York, United Nations, 2010). F. H. T. Wegelein, Marine Scienti

fic Research: The Operation and Status of Research Vessels and

Other Platforms in International Law (Leiden, Brill/Nijhoff, 2005).

2 Special Issues D. Ball, ‘Intelligence Collection Operations and EEZs: The Implications of New Technology’ (2004) 28 Marine Policy, pp. 67 –82.

fic

S. Bateman, ‘Hydrographic Surveying in the EEZ: Differences and Overlaps with Marine Scienti Research ’ (2005) 29 Marine Policy, pp. 163 –174. K. Bork, J. Karstensen, M. Visbeck and A. Zimmermann, ‘The Legal Regulation of Floats and Gliders – In Quest of a New Regime?’ (2008) 39 ODIL, pp. 298 –328.

450 Protection of Community Interests at Sea

fi c Research Cables , in D. R. Burnett, R. C. Beckman

L. Carter and A. H. A. Soons, ‘ Marine Scienti

’

and T. M. Davenport (eds.), Submarine Cables: The Handbook of Law and Policy (Leiden, Brill/ Nijhoff, 2013), pp. 323 –337.

fic Research and the Underwater

S. Dromgoole, ‘ Revisiting the Relationship between Marine Scienti Cultural Heritage ’ (2010) 25 IJMCL, pp. 33 –61. K. N. Scott, ‘Marine Scienti

fi c Research and the Southern Ocean: Balancing Rights and Obligations

in a Security-Related Context’ (2008) 6 New Zealand Yearbook of International Law , pp. 111–134.

fic Research and the Conservation of Marine

Y. Tanaka, ‘ Obligation to Co-operate in Marine Scienti

Living Resources ’ (2005) 65 ZaöRV , pp. 937–965.

11 Maintenance of International Peace and Security at Sea Main Issues

International peace and security on the oceans are currently faced with a variety of threats. For

instance, piracy and armed robbery against

ships are

serious

problems

endangering the welfare of seafarers and the security of sea communication. The proliferation of weapons of mass destruction (WMD) through marine transport is a matter of pressing concern. Furthermore, military uses of the oceans raise international tension between interests of the coastal State and interests of the naval State. Thus this chapter will address the maintenance of international peace and security at sea. Principal focus will be on the following issues:

(i) What are the rules applicable to the suppression of piracy and its limitations? (ii) What are the rules applicable to the prevention and suppression of maritime terrorism and other unlawful offences at sea? (iii) Are military exercises in the EEZ of a foreign State permissible in the law of the sea?

ficance of nuclear-weapon-free zones in the maintenance of

(iv) What is the signi

international peace and security at sea?

1 INTRODUCTION The maintenance of international peace and security is a fundamental issue underlying international law, and the international law of the sea is no exception. In this regard, Article 301 of the LOSC provides a clear obligation with regard to peaceful uses of the sea:

In exercising their rights and performing their duties under this Convention, States Parties shall refrain from any 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.

451

452

Protection of Community Interests at Sea Further to this, several provisions of the LOSC reserve the use of the oceans for peaceful purposes.

1

The law of the sea does not completely prohibit military uses of the oceans. However, military activities in the oceans, such as military exercises in the EEZ of a third State, raise particular sensitivities associated with the security of coastal States. Furthermore, the prevention and suppression of maritime terrorism and other unlawful offences at sea are a matter of pressing current concern. In relation to this, non-proliferation of WMD at sea attracts growing attention in the international community. In general, it appears that disarmament and arms control at sea can be considered as an important element in the protection of community interests with regard to the maintenance of international peace and security. Piracy and armed robbery are also a serious threat to human life and sea communication. Modern piracy is changing from sporadic ‘smash-and-grab ’ crime to highly developed organised crime. As a consequence, piracy is increasingly dangerous, both quantitatively and qualitatively. In reality, piracy and armed robbery pose serious threats to international navigation and security particularly in the South China Sea, West Africa and the Indian 2

Ocean.

‘ enemies

Traditionally pirates have been considered outlaws, hostes humani generis or of all mankind’ . The suppression of piracy can therefore be considered as a

common interest of the international community. Against that background, this chapter will address the principal legal issues concerning military uses of the oceans and various threats to human life as well as sea communication in the broad context of the maintenance of international peace and security. It will be appropriate to commence our discussion with piracy because this issue has long been addressed by the international law of the sea.

2 THE SUPPRESSION OF PIRACY

2.1 Concept of Piracy

The concept of piracy has left room for confusion partly because the municipal laws punish 3

as ‘piracy’ acts which do not constitute ‘piracy’ in international law.

Currently a modern

finition of piracy can be seen in Article 101 of the LOSC:

de

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;

1

See for instance, LOSC, Articles 88, 141, 240(a). See also B. A. Boczek, ‘Peaceful Purposes Provisions of the United Nations Convention on the Law of the Sea ’ (1989) 20 ODIL, pp. 359–389.

2 3

IMO, Reports on Acts of Piracy and Armed Robbery Against Ships, Annual Report 2013, MSC.4/Circ.208, Annex 2. Dissenting Opinion of Mr Moore, the Case of the S.S. Lotus, PCIJ, 1928 Series A/10, p. 70.

453

Maintenance of International Peace and Security at Sea

(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).

It may be said that this de comprises

finition represents the existing customary law.

finition

4

five elements to identify piracy.

This de

5

(i) There must be ‘ any illegal acts of violence or detention, or any act of depredation’ . The language of this provision seems to suggest that these two acts, i.e. an illegal act of violence or depredation are in the form of alternatives. Article 101 does not provide further precision with regard to the types of violence which constitute piracy and a de

finition of an act of

depredation. Violence may be committed against persons or property on board. attempts to commit illegal acts are not included in the de

6

However,

finition of piracy.

7

(ii) Unlawful offences must be committed for ‘private ends ’ (the private ends requirement). It follows that piracy cannot be committed by vessels or aircrafts on military or government service or by insurgents. Yet the meaning of private ends is not wholly unambiguous. Two different views can be identi

fied on this matter. According to the first

view, illegal acts of violence for political reasons are automatically excluded from the

finition of piracy.

de

8

According to this view, acts are tested on the basis of the motives of

an offender. However, the interpretation of private ends will rely primarily on the subjective appreciation of the offender. In the second view, all acts of violence that lack State sanction or authority are acts undertaken for private ends.

9

According to this view, in essence, the

private ends requirement seems to overlap with the private ship requirement. In practice, however, lack of State status may not automatically make the actors pirates.

10

The Santa

Maria affair sheds some light on this matter. In 1961, the Portuguese liner, the Santa Maria, was taken over by offenders on board under the leadership of a Portuguese political dissident, Captain Galvão. He declared that

4

I. Brownlie, Principles of Public International Law (Oxford University Press, 2008), p. 229. Article 101 is virtually the same as Article 15 of the Geneva Convention on the High Seas.

5

For a detailed analysis of the elements to identify piracy, see in particular R. Churchill, ‘The Piracy Provisions of the UN Convention on the Law of the Sea: Fit for Purpose?’ in P. Koutrakos and A. Skordas (eds.), The Law

and Practice of Piracy at Sea: European and International Perspectives (Oxford, Hart Publishing, 2014), pp. 12 –23. 6

Some argue that one murder alone would suf

fice to be regarded as a piratical act. D. P. O Connell (I. A. ’

Shearer ed.), The International Law of the Sea, vol. 2 (Oxford, Clarendon Press, 1984), pp. 969–970; G. Gidel,

Le droit international public de la mer: le temps de paix, vol. 1, Introduction, La haute mer (reprint, Paris, Duchemin, 1981), p. 309. 7

At UNCLOS I, a British proposal to include attempts in the de

finition of piracy was defeated by twenty-two ficial

votes to thirteen, with seventeen abstentions. United Nations Conference on the Law of the Sea, Of

Records , vol. I, A/CONF.13/40, (1958), p. 84. See also Churchill, ‘The Piracy Provisions’, p. 21. 8 9 10

M. Shaw, International Law, 8th edn (Cambridge University Press, 2017), p. 458. D. Guilfoyle, Shipping Interdiction and the Law of the Sea (Cambridge University Press, 2009), p. 37. O’Connell, The International Law of the Sea, pp. 975–976. Indeed, the Harvard Research Draft did not regard insurgents against a foreign government as pirates. Harvard Law School, ‘Codi Part IV: Piracy’ (1932) 26 AJIL Supplement, p. 798.

fication of International Law,

454 Protection of Community Interests at Sea the seizure was the

first

step to overthrowing the Dictator Salazar of Portugal. The

flag

State, namely Portugal, designated the seizure of the vessel as piracy. Later, the ship was taken by the offenders to Brazil, and Captain Galvão and his followers were given asylum in Brazil.

11

In the light of the attitude of the Portuguese government, it seemed clear that

Captain Galvão and his party lacked any State authority. Considering that they were granted asylum, however, there is room for the view that this seizure was not made for private purposes.

12

It seems that illicit acts by organised groups for the sole purpose of achieving 13

some political end cannot be automatically characterised as piracy.

The private ends

requirement should be examined by taking various factors into account, such as motives, ends, speci

fic acts of offenders, the relationship between offenders and victims, the relation-

ship between the offenders and the legitimate government, and reactions of third States. A further issue involves the question as to whether or not certain conduct of environmental activists on the high seas should be regarded as a piratical act. A case in point is the

Castle John v NV Mabeco case of 1986. In this case and with a view to alerting public opinion, members of the environmental group Greenpeace took action on the high seas against two Dutch vessels engaged in the discharge of noxious waste. The action included boarding, occupying and causing damage to the two ships. In this case, the Belgian Court of Cassation ruled that the acts were committed for personal ends and consequently, Greenpeace had committed piracy.

14

A more recent case on this matter is the Institute of Cetacean

Research (Japan) v Sea Shepherd Conservation Society. This case related to allegations of and unlawful attacks by Sea Shepherd against Japanese vessels and crews carrying out scienti

fic

whaling programmes in the Southern Ocean. On 25 February 2013, the United

States Court of Appeals for the Ninth Circuit ruled:

‘private ends’ include those pursued on personal, moral or philosophical grounds, such as Sea Shepherd’s professed environmental goals. That the perpetrators believe themselves to be serving the public good does not render their ends public.

11 12

15

P. W. Birnie, ‘Piracy: Past, Present and Future’ (1987) 11 Marine Policy , p. 175. L. C. Green, ‘The Santa Maria: Rebels or Pirates’ (1961) 37 BYIL, p. 503; The American Law Institute,

Restatement of the Law Third: The Foreign Relations Law of the United States , vol. 2 (American Law Institute Publishers, 1990), § 522, Reporter’s Note 2, p. 85; Gidel, Le droit international public de la mer , p. 320. 13

This view is supported by many commentators, including: Brownlie, Principles, pp. 231 –232; A. R. Thomas and J. C. Duncan (eds.), Annotated Supplement to the Commander’s Handbook on the Law of Naval Operations (1999) 73 International Legal Studies (US Naval War College), p. 224; R. Wolfrum, ‘Fighting Terrorism at Sea: Options and Limitations under International Law’, in M. H. Nordquist, R. Wolfrum, J. N. Moore and R. Long (eds.), Legal Challenges in Maritime Security (Leiden and Boston, Brill/Nijhoff, 2008), p. 8; Nguyen Quoc Dinh, P. Daillier, M. Forteau and A. Pellet, Droit international public, 8th edn (Paris, L.G.D.J., 2009), p. 1345; J.-P. Pancracio, Droit de la mer (Paris, Dalloz, 2010), p. 459; J. Crawford, Brownlie’s Principles of Public International

Law, 8th edn (Oxford University Press, 2012), p. 305; IMO Secretary, ‘Piracy: Uniform and Consistent Application of the Provisions of International Conventions Relating to Piracy’, IMO Legal Committee Document LEG 98/8, 18 February 2011, attached to IMO Circular Letter No 3180, 17 March 2011, para. 14. 14

(1988) 77 ILR, pp. 537– 541. See also, S. P. Menefee, ‘The Case of the Castle John, or Greenbeard the Pirate?: Environmentalism, Piracy, and the Development of International Law ’ (1993) 24 California Western

International Law Journal, pp. 1 –16. 15

Institute of Cetacean Research, a Japanese Research Foundation; Kyodo Senpaku Kaisha, LTD., a Japanese Corporation; Tomoyuki Ogawa, an Individual; Toshiyuki Miura, an Individual (Plaintiffs/Appellants) v Sea

fi

Shepherd Conservation Society, an Oregon Nonpro t Corporation; Paul Watson, an Individual (Defendants/

455

Maintenance of International Peace and Security at Sea

The Court of Appeals thus held: ‘The activities that Cetacean [the Plaintiffs/Appellants] alleges Sea Shepherd has engaged in are clear instances of violent acts for private ends, the 16

very embodiment of piracy. ’

However, whether these two national decisions can be

generalised needs careful consideration.

17

(iii) Piracy is committed by the crew or the passengers of a private ship or a private aircraft against another ship or aircraft, or against persons or property on board such ships or aircraft (the private ship requirement).

18

Under Article 102 of the LOSC, the acts of piracy

committed by a warship, government ship or government aircraft whose crew has mutinied and taken control of the ship or aircraft are also assimilated to acts committed by a private ship or aircraft. Under Article 103, a ship or aircraft is considered a pirate ship or aircraft if it is intended by the persons in dominant control to be used for the purpose of committing one of the acts referred to in Article 101. (iv) Piracy involves two ships or aircraft, that is to say, pirate and victim (the two vessels requirement). In accordance with this requirement, hijacking a ship on the high seas by its own crew or passengers (internal hijacking) is not regarded as a piratical act. The case in point is the Achille Lauro affair. On 7 October 1985, four members of a Palestinian group, the Palestine Liberation Front (PLF), aboard the Italian passenger ship, the Achille Lauro, 19

hijacked the ship. They demanded the release of Palestinian prisoners.

As the offenders

had already boarded the ship, this affair involved hijacking of the ship, not piracy. For the same reason, the Santa Maria affair cannot be considered as an act of piracy. (v) Piracy must be directed on the high seas or in a place outside the jurisdiction of any State, such as Antarctica. While Article 101 contains no reference to the EEZ, it seems that illegal acts of violence committed in the EEZ may also qualify as piracy owing to a corresponding cross-reference under Article 58(2) of the LOSC.

20

On the other hand, illegal acts of violence committed in the territorial sea or internal waters of a coastal State cannot be regarded as acts of piracy. Those acts are often called ‘ armed robbery’ . According to the IMO Code of Practice for the Investigation of the Crimes

Appellees), Appeal from the United States District Court for the Western District of Washington, No. 12–35266, D.C. No. 2:11-cv-02043-RAJ, Opinion, p. 5. The judgment is available at: http:// cdn.ca9.uscourts.gov/datastore/general/2013/02/25/1235266.pdf. 16 18

17

Ibid., p. 6.

Churchill, ‘The Piracy Provisions’, pp. 14–18.

There are some treaties which brand the sinking of merchant ships by submarines as piratical acts. For instance, the Nyon Arrangement (Agreement) of 14 September 1937, drafted during the Spanish Civil War,

fi ed submarines as

treated the sinking of merchant ship by unidenti

‘acts of piracy’. 181

LNTS , p. 135.

However, the ILC clearly took the position that such treaties do not invalidate the principle that piracy can only be committed by private ships. ILC, Report of the International Commission on the Work of its Eighth

–

fi

Session, 23 4 July 1956, Of cial Records of the General Assembly, Eleventh Session, Supplement No. 9 , A/CN.4/104, (1956) II YILC , p. 282. See also, Guilfoyle, Shipping Interdiction, pp. 37-38; I. Shearer, ‘Piracy ’, in Max Planck Encyclopedia , para. 11. 19

On 11 October 1985, the hijackers and an alleged mastermind of the operation, Mr Abbas, were on board an Egyptian airliner bound for Tunis, but the Tunisian government did not allow it to land. While the airliner was returning to Egypt, United States military aircraft intercepted the airliner and forced it to land in Sicily. While Italy took the four hijackers into custody and eventually prosecuted and convicted them, Italy allowed Mr Abbas to escape to Yugoslavia. It is reported that the Achille Lauro sank off the coast of Somalia in December 1994. New York Times , 3 December 1994, p. 5 of the New York edition. For a commentary on the

Achille Lauro affair, see J.-P. Pancracio, ‘L’affaire de l’Achille Lauro et le droit international ’ (1985) 31 AFDI, pp. 221– 236. 20

Churchill, ‘The Piracy Provisions’, p. 20; Virginia Commentary, vol. 3, p. 202.

456

Protection of Community Interests at Sea of Piracy and Armed Robbery against Ships adopted on 2 December 2009, ‘armed robbery against ships ’ means any of the following acts:

1.

21

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;

2.

any act of inciting or of intentionally facilitating an act described above.

In reality, many illicit acts of violence occur in the territorial sea. This is particularly problematic if the coastal State concerned is unable to effectively prevent and suppress such acts in its territorial sea.

2.2 Seizure of Pirates

As pirates are treated as outlaws, they are denied the protection of the State may capture and punish them.

22

flag State. Thus any

In this regard, Article 105 of the LOSC makes clear

that on the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith. Where the seizure of a ship or aircraft on suspicion of piracy has been effected without adequate grounds, however, the State making the seizure is to be liable to the State the nationality of which is possessed by the ship or aircraft, for any loss or damage caused by the seizure pursuant to Article 106. The seizure of piracy is the oldest and the most well-attested example of universal jurisdiction.

23

In this respect, Judge Guillaume, in his Separate Opinion in the Arrest of

Warrant of 11 April 2000 case, stated: ‘Traditionally, customary international law did . . . 24

recognize one case of universal jurisdiction, that of piracy. ’

Furthermore, the UN Security

Council, in its Resolution of 11 April 2011, explicitly recognised that ‘ piracy is a crime 25

subject to universal jurisdiction’ .

By exercising universal jurisdiction, each State would

contribute to safeguard community interests as an organ of the international community.

21 22 23

Paragraph 2.2. This document is annexed to IMO Resolution A.1025(26), A 26/Res.1025, 18 January 2010. Dissenting Opinion of Mr Moore, the Case of the S.S. Lotus, PCIJ, 1928 Series A/10, p. 70. M. D. Evans, ‘The Law of the Sea’, in M. D. Evans (ed.), International Law, 4th edn (Oxford University Press, 2014), p. 666; P.-M. Dupuy, Droit international public, 8th edn (Paris, Dalloz, 2006), pp. 782–783; American Law Institute, Restatement of the Law Third, The Foreign Relations Law of the United States, vol. 1 (Student Edition, Washington DC, American Law Institute Publishers, 1990), § 404, pp. 254– 255.

24

ICJ Reports 2002, p. 37, para. 5. See also Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, ibid., p. 81, paras. 60– 61.

25

UN Security Council Resolution 1976 (2011), S/RES/1976 (2011), 11 April 2011, para. 14.

457

Maintenance of International Peace and Security at Sea

In this sense, universal jurisdiction over piracy seems to provide an example of the law of 26

dédoublement fonctionnel . Nonetheless,

the

suppression

of

piracy

is

not

free

from

ficulty

dif

in

practice.

The

language of Article 105 suggests that the power to seize and prosecute a pirate ship or aircraft is facultative, not an obligation. Accordingly, there is no guarantee that action against pirates will be effectively taken.

27

In fact, it is not uncommon that seizing States are

reluctant to prosecute pirates owing to the lack of domestic legislation, legal complexities in criminal proceedings and the expense involved.

28

In this regard, the UN Security Council, in

its Resolution 2383 (2017), reiterated its concern over persons suspected of piracy having been released without facing justice. 30

under their domestic law’ . organisations

fighting

29

It accordingly urged all States ‘ to criminalize piracy

Furthermore, the Security Council invited all States and regional

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 of

ficials

(‘shipriders’) from the latter countries to facilitate the investigation

and prosecution of suspected pirates.

31

For instance, the use of ‘ shipriders’ is provided in the

Code of Conduct Concerning the Repression of Piracy and Armed Robbery against Ships in 32

the Western Indian Ocean and the Gulf of Aden (the Djibouti Code of Conduct).

State practice shows that piracy suspects are being transferred for trial to relevant States. While Somali piracy suspects are standing trial in various countries, including Somalia (Puntland), France, Yemen, the Netherlands, Japan, the Republic of Korea and the United States, Kenya seems to remain the preferable venue of choice.

33

In relation to this, the Kenyan

government concluded agreements on prosecuting suspected pirates with the United Kingdom, the United States, the EU, Canada, China and Denmark in 2009. Although the Government of Kenya withdrew from those agreements in March 2010, it continues to accept piracy suspects 34

for prosecution on a case-by-case basis.

26

Furthermore, in 2010, the Kenyan government, with

Concerning Georges Scelle’s theory of the law of dédoublement fonctionnel, see Chapter 8, section 6.4 of this book.

27

T. Treves, ‘Piracy, Law of the Sea, and Use of Force: Developments off the Coast of Somalia’ (2009) 20 EJIL, p. 402. In the period from 1998 to 2009, the incidence of universal jurisdiction over piracies was just under 1.5 per cent of reported cases: E. Kontorovich and S. Art, ‘An Empirical Examination of Universal Jurisdiction of Piracy’ (2010) 44 AJIL, p. 444.

28

UN Doc. S/PV. 6046 (16 December 2008), p. 28 (Denmark). See also Treves, ‘Piracy’, pp. 408–410; M. D. Fink and R. J. Galvin, ‘Combating Pirates off the Coast of Somalia: Current Legal Challenges’ (2009) 56 NILR, pp. 389– 391. In Singapore, the Comité Maritime International adopted the ‘Model National Law on Acts of Piracy or Maritime Violence’ in 2001.

29 30 31 32

The UN Security Council Resolution 2382 (2017), S/RES/2383 (2017), 7 November 2017, Preamble.

Ibid., para. 19. UN Security Council Resolution 1897 (2009), 30 November 2009, S/RES/1897 (2009), para. 6. Article 7. Effective as from 29 January 2009. The document was reproduced in A. V. Lowe and S. A. G. Talmon (eds.), The Legal Order of the Oceans: Basic Documents on the Law of the Sea (Oxford, Hart Publishing, 2009), p. 896. For shipriders, see D. Guilfoyle, ‘Counter-Piracy Law Enforcement and Human Rights’ (2010) 59 ICLQ, pp. 149– 150.

33 34

Ibid., p. 142. UN Security Council, Report of the Secretary-General on Specialised Anti-piracy Courts in Somalia and Other States in the Region, S/2012/50, 20 January 2012, p. 22, para. 78. See also J. T. Gathii, ‘Kenya ’s Piracy Prosecutions’ (2010) 104 AJIL , pp. 416–436; P. M. Wambua, ‘The Jurisdictional Challenges to the Prosecution of Piracy Cases in Kenya: Mixed Fortunes for a Perfect Model in the Global War against Piracy’ (2012) 11 WMU Journal of Maritime Affairs, pp. 95–113.

458 Protection of Community Interests at Sea the aid of international funds, opened a special court to try piracy suspects operating from Somalia in the Gulf of Aden.

35

UN Security Council Resolution 2015 (2011) decided to

continue its consideration of the establishment of specialised anti-piracy courts in Somalia 36

and other States in the region with substantial international participation and/or support, 37

and subsequently reiterated this decision.

In this connection, the UN Security Council

welcomed the initiative of the Seychelles authorities to establish a court for piracy and 38

maritime crime, and the successful prosecution of piracy cases by this body.

In dealing with piracy suspects, States cannot be released from obligations arising under applicable human rights treaties, such as the Convention against Torture, the ECHR and the International Covenant on Civil and Political Rights. The human rights obligations that may be at issue include: (i) the right to be brought promptly before a judge, (ii) non refoulement, (iii) fair trial guarantees, and (iv) the right to an effective remedy.

39

As discussed in

Chapter 5, the application of human rights obligations at sea was recognised in the 40

jurisprudence of the European Court of Human Rights.

It can be considered that whenever

a warship of a State Party to the ECHR arrests suspected pirates, the Convention will apply.

41

In addition, respect for international human rights law has been stressed by UN

Security Council Resolutions on piracy in the past few years.

42

It is beyond serious argument that international cooperation is a prerequisite to effectively suppress piratical activity. Thus Article 100 of the LOSC places an explicit obligation upon all States ‘to cooperate to the fullest possible extent in the repression of piracy on the high seas in any other place outside the jurisdiction of any State ’. In this respect, two approaches can be identi The

first

fied.

approach seeks to develop international cooperation in counter-piracy oper-

ations at the regional level. For instance, in 2004, the Regional Co-operation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP) was concluded.

43

This Agreement aims to prevent and suppress piracy and armed robbery against ships at the same time. It is notable that Article 4 of the 2004 Agreement established an Information Sharing Centre in Singapore with a view to managing and maintaining the expeditious

35

flow

D. Akande, ‘Anti-Piracy Court Opens in Kenya’, EJIL: Talk, 28 June 2010. www.ejiltalk.org/anti-piracycourt-opens-in-kenya/.

36

UN Security Council Resolution 2015, S/RES/2015 (2011), 24 October 2011, para. 16. See also UN Security Council Resolution 2020, S/RES/2020 (2011), 22 November 2011, para. 14.

37

See for instance UN Security Council Resolution 2125, S/RES/2125, 18 November 2013, para. 18; UN Security Council Resolution 2316, S/RES/2316, 9 November 2016, para. 19; UN Security Council Resolution 2382, S/RES/2383, 7 November 2017, para. 19.

38 39

UN Security Council Resolution 2316, S/RES/2316, 9 November 2016, para. 10. Guilfoyle, ‘Counter-Piracy Law Enforcement’, pp. 141– 169 (in particular pp. 152–167); S. P. Bodini, ‘Fighting Maritime Piracy under the European Convention on Human Rights’ (2011) 22 EJIL, pp. 829-848; A. Petrig, ‘Piracy’, in

40 42

Oxford Handbook , pp. 857–858.

See Chapter 5, section 2.9 of this book.

41

Churchill, ‘The Piracy Provisions’, p. 27.

See for instance, UN Security Council Resolution 2125, S/RES/2125, 18 November 2013, para. 17; UN Security Council Resolution 1976, S/RES/1976, 11 April 2011, para. 16; UN Security Council Resolution 2382, S/RES/2383 (2017), para. 7 and paras. 18– 19.

43

(2006) 2398 UNTS , p. 199. Entered into force 4 September 2006. Yet, Malaysia and Indonesia have not

fied the ReCAAP, even though the major sea lanes in the region lie either partially of wholly within the

rati

territorial and archipelagic waters of Indonesia and Malaysia.

459

Maintenance of International Peace and Security at Sea

of information relating to piracy and armed robbery against ships among the Contracting Parties.

44

In 2009, the Djibouti Code of Conduct was adopted by twenty-one governments.

Under Article 8, the Participants to the Djibouti Code of Conduct agree to use piracy information exchange centres in Kenya, Tanzania and Yemen in order to ensure coordinated information

flow. In 2009, following the initiative of Japan, the IMO Djibouti Code of 45

Conduct Trust Fund – a multi-donor voluntary fund – was established.

Furthermore, the

UN Security Council expressed its deep concern about the threat of piracy and armed robbery in the Gulf of Guinea and encouraged the States of the Gulf of Guinea, the Economic Community of West African States (ECOWAS), the Economic Community of Central African States (ECCAS) and the Gulf of Guinea Commission (GGC) to develop transnational and transregional maritime security coordination centres covering the whole region of the Gulf of Guinea.

46

In relation to this, the Code of Conduct concerning the

Repression of Piracy, Armed Robbery against Ships, and Illegal Maritime Activity in West 47

and Central Africa was adopted in Yaoundé on 25 June 2013.

In 2013, the IMO also

adopted a Resolution on Prevention and Suppression of Piracy, Armed Robbery against Ships and Illicit Maritime Activity in the Gulf of Guinea.

48

The resolution, inter alia, appeals

to States in the region, in close cooperation with international and regional organisations, to take all measures possible to ensure that all acts or attempted acts of piracy, armed robbery against ships and other illicit maritime activities are terminated forthwith.

49

The second approach concerns counter-piracy operations through international institutions. Various international institutions are currently engaged in the prevention and suppression of piracy. For example, the EU launched the European Union Naval Force Somalia-Operation Atalanta (EU NAVFOR) in December 2008. of instruments on this subject, including,

50

The IMO adopted a series

‘ Guidance to Shipowners and Ship Operators,

Shipmasters and Crews on Preventing and Suppressing Acts of Piracy and Armed Robbery against Ships ’

51

in 2009 and ‘Implementation of Best Management Practice Guidance ’ in

2011, which urges merchant shipping to take relevant measures to signi 52

the risk of successful pirate attacks.

44

ficantly decrease

Furthermore, the IMO revised ‘ Recommendations to

For limitations with the ReCAAP, see Y. Tanaka, ‘The Asian Perspective on Global Ocean Governance’, in D. Attard, D. Ong and D. Kritsiotis (eds.), The IMLI Treaties on Global Ocean Governance , vol. I: UN and Global Ocean Governance (Oxford University Press, 2018), p. 255.

45

In addition, in 2010, the Trust Fund Supporting the Initiatives of States Countering Piracy off the Coast of Somalia was established by UN Secretary-General, Ban Ki-Moon.

46 47

UN Security Council Resolution 2039, S/RES/2039, 29 February 2012, para. 7. This instrument is available at: http://oceansbeyondpiracy.org/publications/code-conduct-concerningrepression-piracy-armed-robbery-against-ships-and-illicit.

48 50

IMO, Resolution A.1069(28) adopted on 29 November 2013, A 28/Res.1069.

49

Ibid., para. 4.

The European Council extended the Mandate of Operation ATALANTA until December 2020. See the homepage of EU NAVFOR Somalia, www.eunavfor.eu/. For a detailed analysis of the EU’s counter-piracy operations, see R. Gosalbo-Bono and S. Boelaert, ‘The European Union ’s Comprehensive Approach to Combating Piracy at Sea: Legal Aspects’, in Koutrakos and Skordas (eds.), The Law and Practice of Piracy at Sea, pp. 81–166. E. Papastavridis, ‘EUNAVFOR Operation Atalanta off Somalia: The EU in Unchartered Legal Waters?’ (2015) 64 ICLQ 533– 568.

51 52

MSC.1/Circ. 1334, 23 June 2009. IMO, Resolution MSC.324(89) on the Implementation of Best Management Practice Guidance, 20 May 2011.

460 Protection of Community Interests at Sea Governments for Preventing and Suppressing Piracy and Armed Robbery against Ships ’ in 2015.

53

The UNDOALOS also provides assistance to States in the uniform application of the

provisions of the LOSC concerning the repression of piracy.

54

Concerning counter-piracy

operations through international institutions, as will be seen next, particular attention must be devoted to the role of the UN Security Council.

2.3 The Role of the UN Security Council in Counter-piracy Operations Under Chapter VII of the UN Charter, the UN Security Council adopted a series of resolutions dealing with piracy and related issues. In June 2008, for instance, the UN Security Council adopted Resolution 1816 on combating acts of piracy and armed robbery off Somalia ’s coast.

55

In this resolution, the UN Security 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 ’.

56

Thus the resolution

decided, under Chapter VII of the UN Charter, that for a period of six months from the date of the resolution, States cooperating with the Transitional Federal Government (TFG) in the

fight against piracy and armed robbery at sea off the coast of Somalia may: (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 57

means to repress acts of piracy and armed robbery.

At the same time, Resolution 1816 cautiously went on to add that ‘the authorization provided in this resolution applies only with respect to the situation in Somalia ’ and ‘it 58

shall not be considered as establishing customary international law’ .

The resolution

further requested that the activities undertaken pursuant to the authorisation in paragraph 7 do not have the practical effect of denying or impairing the right of innocent passage to the ships of any third States.

59

Subsequently, the Security Council adopted a series of resolutions on this particular matter, and called upon States to take part actively in the

fight against piracy and armed

robbery off the coast of Somalia under Chapter VII of the UN Charter.

53

60

In particular, it is

MSC.1-Circ.1333-Rev.1, 12 June 2015. Originally the Recommendation was adopted in 2009. MSC.1/ Circ. 1333, 26 June 2009.

54 55 57 60

Report of the Secretary-General, Oceans and the Law of the Sea, A/65/69, 29 March 2010, p. 66, para. 245. S/RES/1816 (2008), 2 June 2008. Ibid., para. 7 of the operative part.

56

S/RES/1816 (2008), Preamble.

58

Ibid. , para. 9.

59

Ibid. , para. 8.

S/RES/1838 (2008), 7 October 2008, S/RES/1846 (2008), 2 December 2008, S/RES/1851 (2008), 16 December 2008.

461

Maintenance of International Peace and Security at Sea

notable that Resolution 1851 (2008) decided, in paragraph 6 of the operative part, that

fight against piracy and armed robbery at sea off the coast of Somalia for which advance noti fication had been provided by the TFG States and regional organisations cooperating in the

in Somalia. Thus the geographical scope of the necessary measures was extended to the land to the Secretary-General might undertake all necessary measures that were appropriate

of Somalia. This is an important development because counter-piracy operations at sea are inadequate and there is a need to pursue pirates into their place of operation on land.

61

The

UN Security Council decided, under Chapter VII of the UN Charter, to renew the measure authorised by paragraph 6 of Resolution 1851 (2008) through a series of resolutions, including (2017).

64

relevant.

Resolution

2246

(2015),

62

Resolution

2316

63

(2016)

and

Resolution

2383

Since a long-term solution to piracy lies on land, operations on land would be 65

2.4 The Use of Privately Contracted Armed Security Personnel

At present, the focus of the strategy in the shipping industry is increasingly on protection of vulnerable vessels at sea. In this regard, two possible options exist.

66

The

first

is vessel

protection detachments, which are small teams comprised of uniformed State of

ficials

acting within their capacity as military or law enforcement agents. They embark on board merchant ships with a view to protecting them from pirate attacks. The second option concerns the use of privately contracted armed security personnel. At present, the shipping industry increasingly relies on the services of private maritime security companies. In any case, vessel protection detachments and privately contracted armed security personnel are not engaged in anti-piracy repression measures as such. Instead their role is limited to defending from on board a particularly assigned merchant ship against piratical attacks.

67

The use of private maritime security guards gives rise to a range of legal issues, such as compliance with domestic criminal law, coastal and port States laws and regulations on arms, compatibility with the right of innocent passage, the degree of allowable force and the State responsibility for the actions of privately contracted armed security personnel. National laws and policies concerning the use of the services of a private maritime security

61 62 63

UN Doc. S/PV. 6046 (16 December 2008), p. 9 (USA). UN Security Council Resolution 2246, S/RES/2246, 10 November 2015, para. 14. UN Security Council Resolution 2316, S/RES/2316, 9 November 2016, para. 14. It must be stressed that the renewed authorisations apply only with respect to the situation in Somalia.

64 65

Ibid., para. 15.

S/RES/2383, 7 November 2017, para. 14. In March 2012, the Council of the European Union also extended the area of operations of ATALANTA to include Somali internal waters and Somali land territory. Council Decision 2012/174/CFSP of 23 March 2012, amending Joint Action 2008/851/CFSP on a European Union Military Operation to Contribute to the

Official Journal of the European Union, L.89/69, 27 March 2012, para. (11) of the Preamble and Article 1(2). Deterrence, Prevention and Repression of Acts of Piracy and Armed Robbery off the Somali Coast,

66

A. Petrig, ‘The Use of Force and Firearms by Private Maritime Security Companies Against Suspected Pirates’ (2013) 62

67

ICLQ, p. 669.

C. R. Symmons, ‘Embarking Vessel Protection Detachments and Private Armed Guards on Board Commercial Vessels: International Legal Consequences and Problems under the Law of the Sea’ (2012) 51

and the Law of War Review, p. 33.

Military Law

462 Protection of Community Interests at Sea company signi

ficantly vary.

68

The IMO thus issued interim guidance and recommendations

on this subject, even though it is not endorsing the use of privately contracted armed security personnel. lines.

70

69

Shipping organisations and insurance associations also issued guide-

The legal framework for governing private maritime security guards is currently in a

state of

flux and further coordination of relevant rules will be needed.

71

Of particular concern in this context is the fear of both deliberate and accidental violence as a result of allowing armed guards on ships.

72

The ‘Enrica Lexie ’ Incident case

between India and Italy is a leading case on this subject. In line with the global effort to counter piracy, six marines from the Italian Navy were deployed on board the Enrica Lexie,

an

oil

tanker

flying

the

flag.

Italian

When

the

Enrica

Lexie

was

transiting

approximately 20.5 nautical miles off the coast of Kerala, India, en route from Sri Lanka to Djibouti on 15 February 2012, an unidenti

fied craft was detected on radar approxi-

mately 2.8 nautical miles away and was observed to be heading rapidly towards the Enrica Lexie . As the craft drew closer, two Italian marines assessed that it was on a collision course with the Enrica Lexie and that this modus operandi was consistent with a pirate attack. weapons on

73

the

The two marines thus

fired

twenty rounds through their automatic

However, the targeted craft was an Indian fishing boat St. fishing activity. The act of firing killed two fishermen and endan-

craft.

Anthony, engaged in

gered the safety of nine others on board.

74

While India exercised its adjudicative jurisdiction to deal with the incident, Italy opposed it. Italy thus instituted arbitral proceedings against India under Annex VII to the LOSC on 26 June 2015 (pending). Italy also

filed

with ITLOS a request for the prescription of

provisional measures under Article 290(5) of the LOSC on 21 July 2015. Although ITLOS did not prescribe provisional measures requested by Italy, it prescribed its own measures that order Italy and India to refrain from initiating new court proceedings which might

68 69

See special issue of (2015) 46 ODIL, pp. 81 et seq. They are: 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; Revised Interim Recommendations for Flag States Regarding the Use of Privately Contracted Armed Security Personnel on Board Ships in the High Risk Area, MSC.1/Cir.1406/Rev.2, 25 May 2012; 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; 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; Revised 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.3, 12 June 2015.

70

In this regard, the UN Security Council Resolution 2382 (2017) noted the efforts of the International

fi cation for Private

Organization for Standardization in developing industry standards of training and certi Maritime Security Companies. S/RES/2383 (2017), Preamble. 71 72

For a thorough study on this subject, see Petrig, ‘The Use of Force’, pp. 667–701. United Kingdom House of Commons, Foreign Affairs Committee, Piracy off the Coast of Somalia, Tenth Report of Session 2010–2012, p. 21.

73

In the Dispute Concerning the Enrica Lexie Incident, The Italian Republic v The Republic of India, Noti

fication

under Article 287 and Annex VII, Article 1 of UNCLOS and Statement of Claim and Grounds on Which It Is Based, 26 June 2015, pp. 1 –2, paras. 4–7. 74

Written Observations of the Republic of India, vol. 1, 6 August 2015, p. 11, para. 22. See also Chronology of Events, ibid., pp. 21 –27.

463

Maintenance of International Peace and Security at Sea

aggravate or extend

the dispute.

75

Subsequently, Italy submitted another request

for

prescribing provisional measures to the Annex VII Arbitral Tribunal. In its award of 2016, the Tribunal prescribed a provisional measure that requires Italy and India to cooperate to achieve a relaxation of the bail conditions of an Italian marine, so as to give effect to the concept of considerations of humanity.

76

3 REGULATION OF UNLAWFUL OFFENCES AND WEAPONS OF MASS DESTRUCTION AT SEA

3.1 The 2005 SUA Convention

fined and it does not cover all threats to human life and the security of navigation and commerce at sea. Thus there is a need to fill the legal vacuum in this field. In this regard, of particular importance is the 1988 ConvenAs noted, piracy in international law is narrowly de

tion for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (the SUA Convention). response

to

77

This Convention was concluded under the auspices of the IMO in direct

Achille Lauro

the

incident.

The

SUA

Convention

provides

a

multilateral

framework for the suppression of unlawful offences at sea which are not regulated by the international law of piracy. After the terrorist attacks in New York on 11 September 2001, the 1988 SUA Convention was revised by the Protocol of 2005 to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (hereinafter the 2005 SUA Convention).

78

Four main features of the Convention merit highlighting, namely,

the geographical scope, a broad range of offences, ship-boarding procedures and jurisdictional criteria.

(a) The Geographical Scope Concerning the geographical scope, the SUA Convention applies if the ship is navigating or is scheduled to navigate into, through or from waters beyond the outer limit of the territorial sea of a single State, or the lateral limits of its territorial sea with adjacent States.

75

The ‘

79

It would follow that the Convention covers acts of unlawful offences committed

Enrica Lexie Incident ’

para. 141(1). 76

PCA Case No. 2015-28,

case (Italy v India), Provisional Measures, Order of 24 August 2015, para. 127;

The Enrica Lexie Incident ‘

’

, Order Request for the Prescription of Provisional

Measures, 29 April 2016, p. 33, para. 132(a). Further, see Y. Tanaka, ‘Dual Provisional Measures Prescribed by

flections on the

ITLOS and Annex VII Arbitral Tribunal: Re

‘Enrica Lexie’ Incident Case’ (2017)

Community Yearbook of International Law and Jurisprudence UNTS

The Global

, pp. 265–284.

77

1678

, p. 201. Entered into force 1 March 1992. At the same time, the Protocol for the Suppression of

Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf was adopted. 78

Article 15(2) of the 2005 Protocol provides: ‘Articles 1 to 16 of the Convention, as revised by this Protocol, together with articles 17 to 24 of this Protocol and the Annex thereto, shall constitute and be called the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 2005 (2005 SUA Convention).’ The text of a consolidated version of the SUA Convention as amended by the 2005 Protocol was reproduced in Lowe and Talmon, Convention entered into force 28 July 2010.

79

Article 4(1).

Basic Documents

, p. 837. The Revised 2005 SUA

464 Protection of Community Interests at Sea in the territorial seas, the archipelagic waters, international straits, the EEZ, the high seas and even internal waters. However, the Convention is not applicable to the situation where a ship would navigate from one point of the coast of a State to another point of the coast of the same State without leaving the territorial sea or internal waters.

80

Even in this case, the

Convention ‘nevertheless applies when the offender or the alleged offender is found in the 81

territory of a State Party other than the State referred to in paragraph 1 ’ .

(b) Offences The SUA Convention applies to persons who seek to: seize a ship, perform acts of violence against a person on board, destroy a ship, place on a ship a device or substance which is likely to destroy that ship, destroy or seriously damage maritime navigational facilities, or communicate false information endangering the safe navigation of a ship. scope of offences was further widened. Article 3

82

In 2005, the

bis criminalised, inter alia,

• using against or on a ship or discharging from a ship any explosive, radioactive material

or biological, chemical, and nuclear (BCN) weapons in a manner that causes or is likely to cause death or serious injury or damage, • discharging, from a ship, oil, LNG, or other hazardous or noxious substance in such quantity

or concentration that causes or is likely to cause death or serious injury or damage, • using a ship in a manner that causes death or serious injury or damage, • transporting any explosive or radioactive material, knowing that it is intended to be used

to cause death or serious injury or damage for the purpose of intimidating a population, or compelling a government or an international organisation to do or to abstain from doing any act, and • transporting biological, chemical and nuclear weapons.

It is to be noted that offences under the 2005 SUA Convention are not limited to an act against another ship. Furthermore, under Article 11

bis, ‘[n]one of the offences set forth in

these articles shall be regarded for the purposes of extradition or mutual legal assistance as a political offence ’. On the other hand, the 2005 SUA Convention does not apply to a warship or a ship owned or operated by a State by virtue of Article 2. It follows that unlawful offences and transports of BCN weapons at sea that may be carried out by States fall outside the Convention.

(c) Ship-boarding Procedure Notably, the 2005 SUA Convention adopts ship-boarding procedures by non-

flag States.

83

Clearly, ship-boarding procedures seek to effectively apprehend offenders. Under certain

80

F. Francioni, ‘Maritime Terrorism and International Law: The Rome Convention of 1988’ (1988) 31

GYIL,

pp. 273 –274; T. Treves, ‘The Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation’ (1998) 2 81 83

Article 4(2).

82

Singapore Journal of International and Comparative Law, pp. 546–548.

Article 3(1).

For a detailed examination on this matter, see N. Klein, University Press, 2011), pp. 173

et seq.

Maritime Security and the Law of the Sea (Oxford

465

Maintenance of International Peace and Security at Sea

conditions, Article 8

bis

(5) of the Convention allows a State Party to take appropriate

measures, including boarding a foreign ship located seaward of any State ’s territorial sea if authorised by the

flag State to do so. Article 8bis (6) further provides that when evidence of bis, 3 ter, or 3quater is found as the result of any boarding bis, the flag State may authorise the requesting Party to detain the

conduct described in Article 3, 3 conducted under Article 8

ship, cargo and persons on board pending receipt of disposition instructions from the State. Under Article 8

flag

bis (8), for all boarding pursuant to this Article, the flag State has the

right to exercise jurisdiction over a detained ship, cargo or other items and persons on board, including seizure, forfeiture, arrest and prosecution. Under the same provision, the

flag State may, subject to its constitution and laws, consent to the exercise of jurisdiction by another State having jurisdiction under Article 6. The ship-boarding procedures are particularly important in order to reconcile the exclusive jurisdiction of the

flag State and

the need for the effective apprehension of offenders.

(d) Jurisdiction Where offences have been committed, there is a need to establish jurisdiction to prosecute offenders in an effective manner. In this regard, Article 6 sets out a two-tier system. The

first involves compulsory jurisdiction. Article 6(1) obliges each State Party to establish

its jurisdiction over the offences set forth in Article 3 when the offence is committed:

(a) against or on board a ship

flying the flag of the State at the time the offence is

committed; or (b) in the territory of that State, including its territorial sea; or (c) by a national of that State.

The second is an optional jurisdiction. In this regard, Article 6(2) stipulates that a State Party may establish its jurisdiction over any such offence when:

(a) it is committed by a stateless person whose habitual residence is in that State; or (b) during its commission a national of that State is seized, threatened, injured or killed; or (c) it is committed in an attempt to compel that State to do or abstain from doing any act.

Any State Party which has established jurisdiction mentioned in Article 6(2) is required to notify the Secretary-General of the IMO in accordance with Article 6(3). The adoption of such a broad range of jurisdictional criteria aims to close possible jurisdictional gaps concerning unlawful marine offences. On the other hand, a question that remains involves the competing claims of jurisdiction. In this regard, two possible solutions may be envisaged. First, where the competing claims arise between a State entitled to jurisdiction under Article 6(1), namely compulsory jurisdiction, and a State invoking jurisdiction on the basis of Article 6(2) providing optional jurisdiction, it is reasonable to consider that the former should be given priority.

466 Protection of Community Interests at Sea Second, where the competing claims arise within the same group of jurisdictional criteria, the Convention does not provide a criterion of precedence. Accordingly, the solution seems to be a matter of discretion for the State actually detaining the alleged offender. At the same time, it is to be noted that Article 11(5) provides:

A State Party which receives more than one request for extradition from States which have established jurisdiction in accordance with article 6 and which decides not to prosecute shall, in selecting the State to which the offender or alleged offender is to be extradited, pay due regard to the interests and responsibilities of the State Party whose

fl

ag the ship was

fl

ying at the time

of the commission of the offence.

This provision seems to imply that the claims involve that State.

flag State enjoys special favour when the competing

84

The SUA Convention does not provide for universal jurisdiction. However, the Convention attempts to close any possible jurisdictional gap by providing that the duty to extradite or prosecute (

aut dedere aut iudicare) is on the State in whose territory the alleged offender

is present. In this regard, Article 6(4) holds:

Each State Party shall take such measures as may be necessary to establish its jurisdiction over

bis, 3ter and 3 quater in cases where the alleged offender is

the offences set forth in articles 3, 3

present in its territory and it does not extradite the alleged offender to any of the States Parties which have established their jurisdiction in accordance with paragraphs 1 and 2 of this article.

This obligation is further ampli

fied by Article 10(1):

The State Party in the territory of which the offender or the alleged offender is found shall, in cases to which article 6 applies, if it does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case without delay to its competent authorities for the purpose of prosecution, through proceedings in accordance with the laws of that State. Those authorities shall take their decision in the same manner as in the case of any other offence of a grave nature under the law of that State.

Yet this provision falls short of laying down an obligation of result, i.e. prosecution, trial and punishment. Where the State Party on whose territory the offender is found is to proceed to extradition, ‘[t]he offences set forth in articles 3, 3

bis, 3ter

and 3

quater shall be

deemed to be included as extraditable offences in any extradition treaty existing between 85

any of the State Parties’ .

If an extradition treaty does not exist between States Parties, the

requested State Party ‘ may, at its option’ , consider the SUA Convention as a legal basis for extradition in respect of the offences set forth in Articles 3, 3

84

Francioni, ‘Maritime Terrorism’, pp. 277–278.

85

Article 11(1).

bis, 3ter and 3quater. 86

Article 11(2).

86

Yet the

467

Maintenance of International Peace and Security at Sea

phrase, ‘may, at its option’ , seems to suggest that the SUA Convention does not impose a strict obligation to extradite on the State Party in whose territory the alleged offender is present. Considering that acts of unlawful maritime offences may involve States which do not have extradition treaties, this seems to be a defect of the Convention.

87

3.2 Proliferation Security Initiative

The proliferation of WMD, including nuclear weapons, constitutes a serious threat to the maintenance of international peace and security. Several attempts have been made to deter the spread of such weapons. The proliferation security initiative (PSI) is an example. The PSI is a political initiative launched by US President George W. Bush in Krakow, Poland on 31 May 2003 as a response to the proliferation of WMD, their delivery systems and related materials worldwide.

fluence

China, although its in

88

Notably, members of the PSI include Russia, but not

on the Democratic People ’ s Republic of Korea (hereinafter

North Korea), which is an obvious target of the PSI, is crucial. It is generally considered that 89

the commitments of the participants to the initiative are not legally binding.

On 4 September 2003, the ‘Interdiction Principles for the Proliferation Security Initiative’ (hereinafter the Interdiction Principles) were agreed at Paris.

90

Paragraph 1 calls on the PSI

participants to undertake effective measures for interdicting the transfer or transport of WMD, their delivery systems, and related materials to and from States and non-State actors of proliferation concern. Paragraph 2 commits the PSI participants to adopt streamlined procedures for rapid exchange of relevant information concerning suspected proliferation

fidential character of classi fied information provided

activity and the protection of the con

by other States as part of the initiative. Furthermore, paragraph 4(d) of the Interdiction Principles calls on the 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 of carrying such cargoes [of WMD] to or from states or non-state actors of proliferation concern and to seize

fi

such cargoes that are identi ed; 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.

87

Francioni, ‘Maritime Terrorism’, pp. 283–285; Treves, ‘The Convention for the Suppression of Unlawful Acts’, pp. 552– 553.

88

Remarks to the People of Poland in Krakow, Poland, 31 May 2003. See www.presidency.ucsb.edu/ws/ index.php?pid=64354. As of April 2019, 107 States have endorsed the Initiative. Endorsing State List, available at www.psi-online.info/psi-info-en/botschaft/-/2205942. See also US Department of States, www.state.gov/t/isn/c10390.htm.

89

US Department of State states that the PSI relies on ‘voluntary actions by states’. See www.state.gov/t/isn/c10390.htm.

90

This instrument is available at: www.state.gov/t/isn/c27726.htm.

468

Protection of Community Interests at Sea However, the requirement in paragraph 4(d)(1) would seem to leave some room for discussion. Under international law, every State has the right of innocent passage through the territorial sea. While activities which are not innocent are listed in Article 19(2) of the LOSC, the transport of WMD is not mentioned in this provision.

91

It is also debatable

whether the transport of WMD can be regarded as an action which is ‘prejudicial to the 92

peace, good order or security of the coastal State’ under Article 19(1) of the LOSC.

Moreover, it appears to be questionable whether the coastal State may stop and search suspected vessels passing its contiguous zone without entering into its territorial sea.

93

In

any case, the PSI does not empower States to conduct interdiction operations on the high seas.

94

It should also be noted that the PSI applies only to commercial, not governmental,

transactions.

95

With a view to promoting its initiatives for the non-proliferation of WMD, the United States began to conclude bilateral treaties with the following States: Antigua and Barbuda, Bahamas, Belize, Croatia, Cyprus, Liberia, Malta, the Marshall Islands, Mongolia, Panama and Saint Vincent and the Grenadines. These agreements commonly seek to promote cooperation between the two Parties in the prevention of the transportation by ships of WMD, their delivery systems and related materials. The bilateral treaties concluded by the United States seem to provide a legal basis for the boarding and search of the suspect vessel, cargo and the persons on board by the requested State, i.e. non-

flag State.

96

However, the

main limitation with this approach is that these treaties are binding only upon the two States Parties. Accordingly, there will be a need to create a multilateral framework for ensuring international cooperation on this subject.

3.3 UN Interceptions at Sea

The UN Security Council may have a signi

ficant role in the non-proliferation of WMD at

sea. One can take the case of North Korea as an example. On 9 October 2006, North Korea carried out a test of a nuclear weapon. Following the test, UN Security Council Resolution 1718 determined that there was a clear threat to international peace and security. Acting under Chapter VII of the UN Charter and taking measures under its Article 41, the Security Council thus decided that all Member States should prevent the direct or indirect supply, sale or transfer to North Korea, through their territories or by their nationals, or using their

91

In the 1989 Uniform Interpretation of Norms of International Law Governing Innocent Passage between the United States and the USSR, the United States itself stated that Article 19(2) is an exhaustive list of activities that would render passage not innocent (para. 2).

92 93

Wolfrum, ‘Fighting Terrorism at Sea’, pp. 23–26. S. Kaye, ‘The Proliferation Security Initiative in the Maritime Domain’ (2005) 35

Rights

Israel Yearbook of Human

, p. 217.

94

M. Malirsch and F. Prill, ‘The Proliferation Security Initiative and the 2005 Protocol to the SUA Convention ’ (2007) 67

95

ZaöRV

, p. 234.

M. B. Nikitin, ‘Proliferation Security Initiative (PSI)’ Congressional Research Service, 18 January 2011, p. 4. Available at: https://fas.org/sgp/crs/nuke/RL34327.pdf.

96

For an analysis of ship-boarding procedure in those agreements, see N. Klein,

of the Sea

(Oxford University Press, 2010), pp. 184–190.

Maritime Security and the Law

469

Maintenance of International Peace and Security at Sea

flag vessels or aircraft, weapons, materials and technology, which could contribute to North Korea ’s nuclear-related or WMD-related programmes.

97

Further to this, under Chapter VII of the UN Charter and its Article 41, Security Council Resolution 1874 called upon all States to inspect, in accordance with their national authorities and legislation, and consistent with international law, all cargo to and from North Korea, in their territory, including seaports and airports, if there were reasonable grounds to believe that the cargo contained prohibited items.

98

The resolution further called

upon all Member States to inspect vessels, ‘ with the consent of the

flag State, on the high

seas’ , if there were reasonable grounds to believe that the cargo of such vessels contained prohibited items. If the

flag

State did not consent to inspection on the high seas, it was

obliged to direct the vessel to proceed to an appropriate and convenient port for the required inspection by the local authorities.

99

In summary, the UN Security Council allowed

UN Member States to inspect vessels on the high seas on the basis of consent of the

flag

State. Moreover, in 2013, acting under Chapter VII of the UN Charter, and taking measures under its Article 41, the Security Council decided that:

if any vessel has refused to allow an inspection after such an inspection has been authorised by the vessel’s

flag State, or if any DPRK-flagged vessel has refused to be inspected pursuant to

paragraph 12 of resolution 1874 (2009), all States shall deny such a vessel entry to their ports, unless entry is required for the purpose of an inspection, in the case of emergency or in the case of return to its port of origination.

100

While maritime terrorism is becoming a matter of serious concern in the international community, there is a concern that such a unilateral interdiction at sea may be used to promote the strategic interests of a particular State on the pretext of the prevention of maritime terrorism and the transfer of WMD-related materials at sea. Collective problems, such as terrorism and the proliferation of WMD, should be settled by using collective means within an international framework. Hence the UN Security Council seems to provide a more legitimate means for the prevention of both terrorism and the transfer of WMD at sea than reliance on unilateral interdiction.

4 MILITARY EXERCISES IN THE EEZ The legality of military exercises in the EEZ of a third State is one of the most contentious issues in the law of the sea. The EP-3 incident provides an illustration.

97 100 101

S/RES/1718 (2006), para. 8.

98

S/RES/1874 (2009), para. 11.

99

101

In April 2001,

Ibid., paras. 12–13.

Resolution 2094, S/RES/2094, 7 March 2013, para. 17. Yann-Huey Song, ‘The EP-3 Collision Incident, International Law and its Implications on the U.S.-China Relations ’ (2001) 19 Chinese (Taiwan) Yearbook of International Law and Affairs, pp. 1 –15; E. Donnelly, ‘The United States-China EP-3 Incident: Legality and Realpolitik’ (2004) 9

Law , pp. 25–42.

fl

Journal of Con ict and Security

470 Protection of Community Interests at Sea Chinese F-8

fighters flew

up to greet US EP-3 planes intercepting communications and

monitoring coastal and offshore activities along the Chinese coast, and one of them collided with an EP-3 at a location about 70 nautical miles south-east of Hainan Island. As a result, the Chinese plane was destroyed, while the EP-3 was also damaged and landed at Lingshui Airport on Hainan Island in China. China subsequently claimed that the US planes had violated the LOSC which ‘ stipulates that any

flight

in airspace above another nation’ s

exclusive economic zone should respect the rights of the country concerned ’, and that 102

‘ the US plane ’s actions posed a serious threat to the national security of China’ .

incidents occurred in 2002.

Similar

103

With regard to the legality of military exercises in the EEZ of a third State, State practice is sharply divided into two opposing groups. On the one hand, not a few developing States have taken the position that the LOSC does not allow States to carry out military exercises or manoeuvres in the EEZ without the permission of the coastal State. When ratifying the LOSC in 2001, for instance, Bangladesh made the following declaration:

The Government of the People’s Republic of Bangladesh understands that the provisions of the Convention do not authorize other States to carry out in the exclusive economic zone and on the continental shelf military exercises or manoeuvres, in particular, those involving the use of weapons or explosives, without the consent of the coastal State.

104

Brazil, Cape Verde, India, Malaysia, Pakistan and Uruguay also made a similar declaration when ratifying the Convention,

105

and Iran adopted the same position in its legislation.

106

On the other hand, developed States, such as Germany, Italy, the Netherlands, the United 107

Kingdom and the United States, have objected to the claim of the developing States.

In a

declaration of 8 March 1983, the United States pronounced:

Military operations, exercises and activities have always been regarded as internationally lawful uses of the sea. The right to conduct such activities will continue to be enjoyed by all States in the exclusive economic zone. This is the import of article 58 of the Convention. Moreover, Parts XII and XIII of the Convention have no bearing on such activities.

102

108

Ministry of Foreign Affairs of the People’s Republic of China, ‘Spokesman Zhu Bangzao Gives Full Account of the Collision between US and Chinese Military Planes ’, 4 April 2001.

103

J. M. Van Dyke, ‘Military Ships and Planes Operating in the Exclusive Economic Zone of Another Country ’ (2004) 28

104 105 106

Marine Policy, p. 33.

Reproduced in Lowe and Talmon,

Ibid., pp. 915, 917, 939

Basic Documents, p. 911.

–940, 944, 952, 967.

Article 16 of the 1993 Act of the Marine Areas of the Islamic Republic of Iran in the Persian Gulf and Oman. The text of the Act is available at: www.un.org/Depts/los/LEGISLATIONANDTREATIES/index.htm.

107 108

Lowe and Talmon,

Basic Documents, pp. 935, 941, 948, 965. Of ficial Records of the Third United Nations Conference on the Law of the

A/CONF.62/WS/37 and Add. 1 –2,

Sea, vol. XVII, p. 244.

471

Maintenance of International Peace and Security at Sea

The LOSC provides no speci

fic

right for the coastal State to prohibit or regulate military

activities within their EEZs. Nor is there any explicit provision which confers on States a right to carry out such activities within foreign EEZs. Thus one has to accept that the legality of military activities in the EEZ of a third State is not clear-cut under the LOSC. In this regard, three different views can be identi In the State.

110

109

fied.

first view, States have the right to carry out military activities in the EEZ of another This interpretation relies mainly on the text and legislative history of Article 58.

According to this view, military exercises are included in ‘ other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines’ provided in Article 58(1). By contrast, in the second view, the term ‘other internationally lawful uses of the sea’ does not include the freedom to conduct military activities in the EEZ. According to this view, coastal States have the right to restrict or prohibit foreign military activities in their EEZs.

111

According to the third view, this question should be considered as a matter of residual rights, and any dispute over military activities in the EEZ is to be settled by reference to Article 59 of the LOSC.

112

While this view is arguable, it must be noted that international

disputes concerning military activities may be exempted from compulsory procedures for dispute settlement by virtue of Article 298(1)(b). Furthermore, warships enjoy sovereign immunity. Hence it may be dif

ficult

to settle an international dispute on this subject by

international adjudication. In light of the high degree of political sensitivity involved in this subject, it appears dif

ficult, if not impossible, to give a definitive answer to this question. Thus only tentative

comments can be made here.

109

fi cials and scholars primarily from the Asia-Pacifi c countries, flight in the Exclusive Economic Zone in 2005. This document

EEZ Group 21, which was a group of senior of adopted ‘Guidelines for Navigation and Over

’

is available at: www.spf.org/opri/publication/pdf/200509_20051205_e.pdf. 110

This view is supported by writers, including: H. B. Robertson, ‘Navigation in the Exclusive Economic Zone ’ (1984) 24 Virginia Journal of International Law, pp. 885– 888; B. Kwiatkowska, ‘Military Uses in the EEZ: A Reply’ (1987) Marine Policy , p. 249; G. V. Galdorisi and A. G. Kaufman, ‘Military Activities in the Exclusive Economic Zone: Preventing Uncertainty and Defusing Con

flict

’ (2001–2002) 32

California

Western International Law Journal, p. 272; R. P. Pedrozo, ‘Preserving Navigational Rights and Freedoms: The Right to Conduct Military Activities in China ’s Exclusive Economic Zone’ (2010) 9 Chinese Journal of

International Law , pp. 9–29; B. H. Oxman, ‘The Regime of Warships Under the United Nations Convention on the Law of the Sea ’ (1984) 24 Virginia Journal of International Law, p. 838, but his view is nuanced. 111

R. Xiaofeng and C. Xizhong, ‘A Chinese Perspective’ (2005) 29 Marine Policy, p. 142; Zhang Haiwen, ‘Is It Safeguarding the Freedom of Navigation or Maritime Hegemony of the United States? Comments on Paul (Pete) Pedrozo ’s Article on Military Activities in the EEZ’ (2010) 9 Chinese Journal of International Law, pp. 31 –47.

112

This view is supported by writers, including: R. R. Churchill, ‘The Impact of State Practice on the Jurisdictional Framework Contained in the LOS Convention ’, in A. G. Oude Elferink (ed.), Stability and

Change in the Law of the Sea: The Role of the LOS Convention (Leiden and Boston, Brill/Nijhoff, 2005), p. 135; A. V. Lowe, ‘Some Legal Problems Arising from the Use of the Seas for Military Purposes’ (1986) 10

Marine Policy, p. 180; T. Scovazzi, ‘The Evolution of International Law of the Sea: New Issues, New Challenges’ (2000) 286 RCADI , pp. 166–167.

472 Protection of Community Interests at Sea First, the military exercises must have ‘due regard to the rights and duties of the coastal States ’ in the EEZ pursuant to Article 58(3). It can be argued, therefore, that military activities in the EEZ are not permissible where they prevent the lawful enjoyment of the rights and jurisdiction of the coastal State, such as exploration and exploitation of marine resources, navigation and marine environmental protection.113 Second, if fishing vessels and installations exist within an EEZ, there will be a need to take safety measures to protect human life and installations against risks arising from military exercises and manoeuvres. Moreover, particular caution must be taken where a ‘ clearly defined area of special mandatory measures ’ provided in Article 211(6)(a) or other MPAs are established in the EEZ. 114 It can reasonably be presumed that the coastal State is normally in the best position to specify areas of the EEZ which require particular caution. Hence it will be desirable that a State intending to carry out military exercises should consult with the coastal State, in light of humanitarian and environmental considerations.

5 REGULATION OF NUCLEAR WEAPONS AT SEA As the UN Security Council has af firmed, it is beyond doubt that the proliferation of nuclear weapons constitutes a threat to international peace and security.115 After World War II, nuclear weapon tests on the high seas raised particularly sensitive issues with regard to their legality. One can take the Daigo Fukuryumaru incident as an example. On 1 March 1954, the United States undertook hydrogen bomb tests. At the time of the explosion, a Japanese fishing vessel, Daigo Fukuryumaru , was contaminated by the fallout from the test. After six months, a crew member died because of the radioactivity. Fish caught by the Daigo Fukuryumaru and other fishing vessels engaged in fisheries around Bikini Atoll were also affected by the radioactivity. On 4 January 1955, the United States and Japan agreed that the United States should pay ex gratia compensation of US$2 million, regardless of the responsibility in international law. Currently the testing and deployment of nuclear weapons at sea is regulated by several treaties. Apart from disarmament treaties limiting the number and armament of nuclear weapons, treaties concerning the regulation of nuclear weapons at sea can be divided into two main categories. The first set of treaties prohibits the test and emplacement of nuclear weapons in the oceans at the global level. The 1963 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water prohibits any nuclear weapon test explosion at any place under its jurisdiction or control: in the atmosphere; beyond its limits, including outer space; or under water, including territorial waters or high seas. 116 The emplacement of 113 114 115 116

Oxman, ‘The Regime of Warships ’, p. 838. Cf. EEZ Group 21, ‘Guidelines’, V(g); D. Attard, The Exclusive Economic Zone in International Law (Oxford, Clarendon Press, 1987), p. 68. S/RES/1718 (2006), Preamble; S/RES/1874 (2009), Preamble. Article I(1)(a). 480 UNTS, p. 43. Entered into force 10 October 1963.

473

Maintenance of International Peace and Security at Sea

nuclear weapons in the seabed beyond the outer limit of a seabed zone is prohibited by the 1971 Treaty

on the Prohibition

of the Emplacement of

Nuclear Weapons and Other

Weapons of Mass Destruction on the Seabed and the Ocean Floor and in the Subsoil Thereof.

117

A second set of treaties seeks to prohibit the testing and use of nuclear weapons at the regional

level,

by

establishing

a

Resolution 3472 (XXX) of 1975 de

nuclear-weapon-free

fines a

118

zone.

UN

General

Assembly

‘ nuclear-weapon-free zone’ as:

any zone recognized as such by the General Assembly of the United Nations, which any group of States, in the free exercises of their sovereignty, has established by virtue of a treaty or convention whereby: (a) The statute of total absence of nuclear weapons to which the zone shall be subject,

fi

including the procedure for the delimitation of the zone, is de ned;

fi

(b) An international system of veri cation and control is established to guarantee compliance 119

with the obligations deriving from that statute.

The Resolution recognised that ‘ the establishment of nuclear-weapon-free zones can contribute to the security of members of such zones, to the prevention of the proliferation of nuclear weapons and to the goals of general and completed disarmament ’.

120

In this regard,

six principal instances can be highlighted. (i) The 1967 Treaty of Tlatelolco for the Prohibition of Nuclear Weapons in Latin America imposes upon the Contracting Parties an obligation to prohibit and prevent in their respective territories the testing, use and deployment of nuclear weapons.

121

Under Article 3, the term

‘ territory’ includes the territorial sea, airspace and any other space over which the State

exercises sovereignty. Article 3 of Additional Protocol II of the 1967 Treaty provides that ‘the Governments represented by the undersigned Plenipotentiaries undertake not to use or threaten to use nuclear weapons against the Contracting Parties of the Treaty’ . The Additional

fied by all five permanent members of the UN Security Council. Treaty of Rarotonga Establishing a South Pacific Nuclear-Free Zone

Protocol II was rati (ii) The 1985

(the

Rarotonga Treaty) obliges each Party to prevent the stationing and the testing of any nuclear explosive device in internal waters, the territorial sea and archipelagic waters, the seabed and subsoil beneath, the land territory and the airspace above them.

117

122

Article 1 of

Article I (1971) 10 ILM, p. 145. Entered into force 18 May 1972. For the purpose of this Treaty, the outer limit of the seabed zone shall be coterminous with the 12-mile outer limit of the zone referred to in Part II of the 1958 Convention on the Territorial Sea and the Contiguous Zone.

118 119 120 121 122

For information on nuclear-weapon-free zones, see www.un.org/disarmament/wmd/nuclear/nwfz/. UN General Assembly Resolution 3472 (XXX), B. 11 December 1975, para. 1

Ibid., 3472 (XXX) A, Preamble. Article 1. 634 UNTS , p. 325. Entered into force: for each government individually. Articles 1, 5 and 6 (1985) 24 ILM, p. 1440. Entered into force 11 December 1986. Protocol I is open for

fi ed all fied Protocols II and III. US ratifi cation

signature by France, the United Kingdom and the United States. France and the United Kingdom rati three Protocols in 1996. China and the Russian Federation have rati of all three Protocols is pending.

474 Protection of Community Interests at Sea Protocol II to the Rarotonga Treaty calls on

five nuclear-weapon States

– France, China,

the USSR, the United Kingdom and the United States – not to use or threaten to use any nuclear explosive device against Parties to the Treaty or any territory within the

fic Nuclear-Free Zone. Under Article 1 of Protocol III to the Rarotonga five nuclear-weapon States are bound to undertake not to test any nuclear explosive device anywhere within the South Paci fic Nuclear-Free Zone, including the South

Paci

Treaty,

high seas. (iii) Similarly, the 1996 African Nuclear-Weapon-Free Zone Treaty (the Pelindaba Treaty) prohibits the stationing and testing of nuclear explosive devices in the territory of each Party, namely, the land territory, internal waters, territorial seas and archipelagic waters and the airspace above them as well as the seabed and subsoil beneath.

123

Article 1 of

Protocol I calls on the Parties to the Protocol, namely, nuclear-weapon States, not to use or threaten to use a nuclear explosive device against any Party to the Treaty or any territory within the African nuclear-weapon-free zone. Article 1 of Protocol II calls on the nuclearweapon States not to test or assist or encourage the testing of any nuclear explosive device anywhere within the African nuclear-weapon-free zone. (iv) Furthermore, the 1995 Treaty on the Southeast Asia Nuclear-Weapon-Free Zone (the Treaty of Bangkok) requires that each State Party undertake not to develop, station, transport, test or use nuclear weapons anywhere inside or outside the Southeast Asia 124

Nuclear-Weapon-Free Zone.

The Zone comprises the territories of all States in Southeast

Asia, namely, Brunei Darussalam, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand and Vietnam, and their respective continental shelves and EEZs.

125

Article 3(2) of the Treaty further provides that each State Party undertakes

not to allow any other States to develop, station or test nuclear weapons in its land territory, internal waters, territorial sea, archipelagic waters, the seabed and the subsoil thereof and the airspace above them. While Article 2 of the Protocol to the Treaty of Bangkok calls on the

five

permanent members of the UN Security Council not to use or threaten to use

nuclear weapons against any State Party to the Treaty, these nuclear-weapon States have not rati

fied the Protocol partly because they object to the inclusion of continental shelves

and EEZs within the scope of the nuclear-free zone.

126

(v) It may also be noted that the 1959 Antarctic Treaty, which applies to the area south of the 60

±

south latitude, prohibits any measures of a military nature as well as the testing of any

type of weapons under Article I.

127

Under Article V, any nuclear explosions in Antarctica and

the disposal there of radioactive waste material are prohibited. In contrast, no nuclearweapon-free

123

zone

is

established

Articles 4 and 5. (1996) 35

in

the

ILM

Arctic.

Even

so,

the

1920

Spitsbergen

Treaty

, p. 705. Entered into force 15 July 2009. China, France, the Russian

Federation and the United Kingdom have rati

fi ed Protocols I and II. The United States has not ratifi ed these fied

Protocols. In addition, Protocol III is open for signature by France and Spain, and only France has rati this Protocol. 124 126

Article 3(1). (1996) 35

27 127

ILM

125

, p. 639. Entered into force 27 March 1997.

Ibid

., Article1(a).

fi

M. C. Abard, Jr, ‘A Nuclear Weapon-Free Southeast Asia and its Continuing Strategic Signi cance ’ (2005)

Contemporary Southeast Asia

, p. 180.

Entered into force 23 June 1961. For the text of the Treaty, see 402

UNTS

, p. 71.

475

Maintenance of International Peace and Security at Sea

demilitarised the Norwegian Archipelago, Svalbard, ‘ any naval base’ or ‘any forti

warlike purposes ’.

129

128

by prohibiting the establishment of

fication

’ and stating that the archipelago ‘may never be used for

The Spitsbergen Treaty may provide a relevant precedent for advocates

of a nuclear-weapon-free zone in the Arctic.

130

(vi) In addition, Treaty on a Nuclear-Weapon-Free Zone in Central Asia (CANWFZ) was concluded in 2006.

131

Yet this treaty does not cover marine spaces.

As for obligations of nuclear-weapon States towards nuclear-weapon-free zones, UN General Assembly Resolution 3472 (XXX) highlighted that all nuclear-weapon States shall undertake the following obligations:

(a) To respect in all its parts the statute of total absence of nuclear weapons de

fined in the

treaty or convention which serves as the constitutive instrument of the zone; (b) To refrain from contributing in any way to the performance in the territories forming part of the zone of acts which involve a violation of the aforesaid treaty or convention; (c) To refrain from using or threatening to use nuclear weapons against the States included in 132

the zone.

Subsequently the UN General Assembly Resolution of 2 December 2009 af

firmed

its

conviction of the important role of nuclear-weapon-free zones in strengthening the nuclear non-proliferation regime.

133

Agenda for Disarmament

The need to strengthen these zones was also stressed by

of 2018.

134

An

As the ICJ stated in the Advisory Opinion on the

Legality of the Threat or Use of Nuclear Weapons, ‘ [t]here exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control ’.

135

The establishment of nuclear-

weapon-free zones can be regarded as a relevant precedent of nuclear disarmament.

128

For Svalbard, see M. Byers (with J. Baker),

International Law and the Arctic

136

(Cambridge University Press,

2013), pp. 16– 22. 129

Article 9 of the Treaty between Norway, The United States of America, Denmark, France, Italy, Japan, the Netherlands, Great Britain and Ireland and the British overseas dominions and Sweden concerning Spitsbergen, available at: http://library.arcticportal.org/1909/1/The_Svalbard_Treaty_9ssFy.pdf. Entered into force 1925.

130 131

Byers,

International Law and the Arctic ,

p. 22. See also pp. 256–261.

The electronic text of the treaty is available at: http://disarmament.un.org/treaties/t/canwfz/text. Entered

fi ed by China, France, Russia and the United fied the Protocol.

into force: 21 March 2009. Protocol to CANWFZ was rati Kingdom. But the United States has not rati 132 133

UN General Assembly Resolution 3472 (XXX), B, para. 2. UN General Assembly Resolution 64/44,

Nuclear-Weapon-Free-Southern Hemisphere and Adjacent Areas ,

A/RES/64/44, 2 December 2009, para. 8. 134

UN Secretary-General,

Securing Our Common Future: An Agenda for Disarmament

(New York, United

Nations, 2018), p. 23. 135

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, p. 267, para.105 (2)(F).

136

Furthermore, the Treaty on the Prohibition of Nuclear Weapons, a legally binding instrument to prohibit nuclear weapons, was adopted on 7 July 2017. See www.un.org/disarmament/tpnw/index.html.

476 Protection of Community Interests at Sea

6 CONCLUSIONS The discussion in this chapter can be summarised under four points. (i) Customary international law and the LOSC allow any State to seize and prosecute a pirate within its territory as an exercise of universal jurisdiction. However, it is becoming apparent that an individual exercise of universal jurisdiction is inadequate to suppress piracy. In response, there is a need to create more institutionalised mechanisms for ensuring international cooperation in this matter. One approach is to create a framework for such cooperation at the regional level. Another approach is to promote concerted counter-piracy operations to be carried out through international institutions, including the UN and the EU. In this regard, it is important to note that the international response to piracy should also be multifaceted since the rise in piracy correlates with various political, economic and social factors. (ii) The de

finition of piracy in international law does not cover other illicit acts against

the welfare of seafarers and the security of sea communication. In response, the 2005 SUA Convention seeks to establish a multilateral framework for the suppression of a wide range

finition of piracy. It is noteworthy that under certain conditions, this Convention adopted ship-boarding procedures by non- flag of unlawful acts at sea that are not covered by the de

States in order to effectively apprehend offenders. Furthermore, in order to prosecute offenders in an effective manner, the Convention sets out a two-tier system which consists of compulsory and optional jurisdiction. Moreover, it holds that the duty to extradite or

aut dedere aut iudicare) is on the State in whose territory the alleged offender is

prosecute (

present, with a view to closing any possible jurisdictional gap. (iii) Military exercises in the EEZ of a foreign State create a strong tension between the security interests of the coastal State and the strategic interests of the naval State. Owing to the divergence between State practice and the opinions of legal commentators, the legality of such exercises in the EEZ of a third State remains a matter of extensive debate. The highly political nature of this issue may make it very dif

ficult to resolve at the normative

level. It needs careful consideration, taking the interests of humanity and protection of the marine environment into account. (iv) The protocols of treaties establishing nuclear-weapon-free zones require nuclearweapon States not to use or threaten to use nuclear weapons against any State Party to the treaties. Where these protocols have entered into force, negative security assurances will contribute to remove a threat of nuclear weapons in certain regions. Furthermore, the

fidence-building and the

establishment of nuclear-weapon-free zones can contribute to con

maintenance of peace and security in certain regions. Moreover, it is notable that several treaties establishing nuclear-weapon-free zones prohibit the dumping of any radioactive wastes.

137

137

Thus these treaties will also contribute to marine environmental protection.

Article 7 of the Rarotonga Treaty, Article 3(3) of the Treaty of Bangkok and Article 7 of the Pelindaba Treaty.

477

Maintenance of International Peace and Security at Sea

FURTHER READING 1 General D. D. Caron and H. N. Scheiber (eds.), The Oceans in the Nuclear Age: Legacies and Risks (Leiden, Brill/Nijhoff, 2010). D. Guilfoyle, Shipping Interdiction and the Law of the Sea (Cambridge University Press, 2009). N. Klein, Maritime Security and the Law of the Sea (Oxford University Press, 2010). N. Klein, J. Mossop and D. R. Rothwell (eds.), Maritime Security: International Law and Policy Perspectives from Australia and New Zealand (London and New York, Routledge, 2010). D. König, ‘Maritime Security: Cooperative Means to Address New Challenges ’ (2014) 57 GYIL, pp. 209–223. J. Kraska and R. Pedrozo, International Maritime Security Law (Leiden, Brill/Nijhoff, 2013). R. McLaughlin, United Nations Naval Peace Operations in the Territorial Sea (Leiden, Brill/Nijhoff, 2009). M. H. Nordquist, R. Wolfrum, J. N. Moore and R. Long (eds.), Legal Challenges in Maritime Security (Leiden, Brill/Nijhoff, 2008). E. D. Papastavridis and K. N. Trapp (eds.), Crimes at Sea (Leiden, Brill/Nijhoff, 2014). J. M. Van Dyke, ‘Military Ships and Planes Operating in the Exclusive Economic Zone of Another Country ’ (2004) 28 Marine Policy, pp. 29–39. P. Wendel, State Responsibility for Interferences with the Freedom of Navigation in Public International Law (Heidelberg, Springer, 2007).

2 Piracy As there are a considerable number of books and articles relating to piracy, only principal monographs on this subject are suggested here. R. Beckman and J. A. Roach (eds.), Piracy and International Maritime Crimes in ASEAN: Prospects for Co-operation (Cheltenham, Edward Elgar, 2012). P. Chapleau and J.-P. Pancracio, La piraterie maritime: droit, pratiques et enjeux (Paris, Vuibert, 2014). R. Geiss and A. Terig, Piracy and Armed Robbery at Sea: The Legal Framework for Counter-Piracy Operations in Somalia and the Gulf of Aden (Oxford University Press, 2011). D. Guilfoyle (ed.), Modern Piracy: Legal Challenges and Responses (Cheltenham, Edward Elgar, 2013). D. Heller-Roazen, The Enemy of All: Piracy and the Law of Nations (New York, Zone Books, 2009). P. Koutrakos and A. Skordas (eds.), The Law and Practice of Piracy at Sea: European and International Perspectives (Oxford, Hart Publishing, 2014). J. Kraska, Contemporary Maritime Piracy: International Law, Strategy, and Diplomacy at Sea (Santa Barbara, CA, Praeger, 2011). P. Leher (ed.), Violence at Sea: Piracy in an Age of Global Terrorism (New York, Routledge, 2007). C. H. Norchi and G. Proutière-Maulion (eds.), Piracy in Comparative Perspective: Problems, Strategies, Law (Oxford, Hart Publishing, 2012). M. P. Scharf, N. Newton and M. Sterio (eds.), Prosecuting Maritime Piracy: Domestic Solutions to International Crimes (Cambridge University Press, 2015).

478 Protection of Community Interests at Sea M. J. Valencia, ‘Military Activities in Foreign EEZs: An Update ’, in Shicun Wu, M. Valencia and Nong Hong (eds.),

UN Convention on the Law of the Sea and the South China Sea (London,

Routledge, 2015), pp. 33–63. National legislation on piracy is available at: www.un.org/Depts/los/piracy/piracy.htm.

3 The 2005 SUA Convention N. Klein, ‘The Right of Visit and the 2005 Protocol on the Suppression of Unlawful Acts against the Safety of Maritime Navigation’ (2007) 35

Denver Journal of International Law and Policy ,

pp. 287–332.

flection

S. D. MacDonald, ‘ The SUA 2005 Protocol: A Critical Re

’ (2013) 28

IJMCL, pp. 485–516.

M. Malirsch and F. Prill, ‘ The Proliferation Security Initiative and the 2005 Protocol to the SUA Convention ’ (2007) 67

ZaöRV, pp. 229–240.

M. Meija and P. K. Mukherjee, ‘ The SUA Convention 2005: A Critical Evaluation of its Effectiveness in Suppressing Maritime Criminal Acts ’ (2006) 12

The Journal of International Maritime Law,

pp. 170–191. J. A. Roach, ‘ PSI and SUA: An Update’, in M. H. Nordquist, R. Wolfrum, J. N. Moore and R. Long (eds.),

Legal Challenges in Maritime Security (Leiden, Brill/Nijhoff, 2008), pp. 281 –325.

4 Naval Interdiction R. Buchan, ‘The International Law of Naval Blockade and Israel ’s Interception of the Mavi Marmara’ (2011) 58

NILR , pp. 209–241.

D. Guilfoyle, ‘ Maritime Interdiction of Weapons of Mass Destruction’ (2007) 12

and Security Law, pp. 1–36.

Journal of Con flict

‘Interdicting Vessels to Enforce the Common Interest: Maritime Countermeasures and the Use of

Force ’ (2007) 56

ICLQ, pp. 69–82.

Keyuan Zou, ‘ Maritime Enforcement of United Nations Security Council Resolutions: Use of Force and Coercive Measures’ (2011) 26

IJMCL, pp. 235–261.

R. McLaughlin, ‘United Nations Mandated Naval Interdiction Operations in the Territorial Sea?’ (2002) 51

ICLQ, pp. 249–278.

12 Land-Locked and Geographically Disadvantaged States Main Issues By reason of their geography, land-locked and geographically disadvantaged States cannot fully use the oceans and it is thus not surprising that these States have sought to safeguard their special interests. As a consequence, the LOSC provides speci

fic rules with regard to the

rights of land-locked and geographically disadvantaged States. As these States are also members of the international community, it is important to secure their right to engage in marine activities. Thus this chapter will address particularly the following issues:

(i) What are land-locked and geographically disadvantaged States? (ii) Do land-locked States have the right of access to and from the sea? (iii) Do land-locked States have navigational rights? (iv) To what extent can land-locked and geographically disadvantaged States participate in the exploitation of natural resources and marine scienti

fic research in the EEZ of

another State?

1 INTRODUCTION ‘ Land-locked State’ means a State which has no sea coast.

1

Land-locked States are distinct

from other States in one decisive fact: they lack access to and from the sea. There are at present forty-

five such States which, in an international community of approximately 200 ficant group (see Table 12.1). As for other States, the oceans are

States, makes a signi

important for land-locked States as a means of communication and a reservoir of marine natural resources. In reality, landlockedness can be regarded as a major contributor to the relatively high incidence of extreme poverty in land-locked developing countries.

2

From

economic and strategic viewpoints, it would be no exaggeration to say that the survival and

1 2

LOSC, Article 124(1). UN General Assembly Resolution 69/137. Programme of Action for Landlocked Developing Countries for the Decade 2014–2024, A/RES/69/137, 23 January 2015, Annex II Vienna Programme of Action for Landlocked Developing Countries for the Decade 2014–2024, p. 2, para. 1.

479

480 Protection of Community Interests at Sea

TABLE 12.1 LIST OF LAND-LOCKED STATES *Afghanistan

Republic of North Macedonia

*Andorra

Malawi

Armenia

Mali

Austria

Moldova

Azerbaijan

Mongolia

Belarus

Nepal

*Bhutan

Niger

Bolivia

Paraguay

Botswana

*Rwanda

Burkina Faso

*San Marino

*Burundi

Serbia

*Central African Republic

Slovakia

Chad

*South Sudan

Czech Republic

Swaziland

*Ethiopia

Switzerland

Hungary

*Tajikistan

*Kazakhstan

*Turkmenistan

*Kosovo

Uganda

*Kyrgyzstan

*Uzbekistan

Laos

*Vatican City

Lesotho

Zambia

*Liechtenstein

Zimbabwe

Luxembourg *

Land-locked States not Parties to the LOSC

prosperity of land-locked States rely on their freedom to communicate and to trade. the safeguarding of the interests of land-locked States becomes a signi

3

Thus

ficant issue in the

law of the sea. Indeed, the Preamble of the LOSC explicitly refers to ‘the interests and needs of mankind as a whole and, in particular, the special interests and needs of developing countries,

whether coastal or land-locked’. 4

In addition to land-locked States, there is another category of States which requires special consideration: geographically disadvantaged States. The concept of geographically

3 4

L. Ca

flisch,

‘Land-Locked States and their Access to and from the Sea ’ (1978) 49

Emphasis added.

BYIL,

p. 74.

481 Land-Locked and Geographically Disadvantaged States disadvantaged States has evolved from that of self-locked States, namely States, as was the case with the Federal Republic of Germany, whose continental shelves are enclosed by those of other States.

5

With the development of the 200-nautical-mile EEZ, the concept of self-

locked States was transformed into that of geographically disadvantaged States. While there is no generally accepted de the law of the sea,

6

finition of geographically disadvantaged States in

it can be argued that these States are essentially characterised by

geographical and economic factors. As shown in the term ‘ geographically disadvantaged States ’, it seems obvious that geographical elements are a key criterion in de

fining those

States. In fact, as is the case for Iraq and the Democratic Republic of the Congo, some States can generate only limited maritime zones due to a short coastline. As is the case for Germany, Singapore and Togo, the presence of neighbouring States also prevents the generation of maritime zones, in particular, the continental shelf and the EEZ. Furthermore, in the case of Jamaica, some States can have an EEZ which is poor in natural resources.

7

Hence economic factors should also be considered. In order to correct inequalities resulting from nature, geographically disadvantaged States, along with land-locked States, have attempted to safeguard their special interests in the oceans.

8

In the law of the sea, land-

locked and geographically disadvantaged States raise three principal issues. First, the uses of the oceans by land-locked States can only be effective if such States enjoy a right of access to and from the sea. This right depends on freedom of transit through the States by whose territories they are separated from the sea. The right of transit of landlocked States is crucial. Second, owing to the importance of freedom to communicate and trade, the navigational rights of land-locked States merit particular consideration. Third, land-locked and geographically disadvantaged States have legitimate interests in various uses of the oceans, such as sea communication, the exploration and exploitation of

fic research. However, the claims of coastal States signi ficantly reduce the size of the high seas where the

marine resources, and marine scienti over a 200-nautical-mile EEZ

principle of freedom applies. The extension of the coastal State jurisdiction over the high

ficult position.

seas has placed land-locked and geographically disadvantaged States in a dif

Thus a third issue to be examined involves the safeguarding of their interests in using the oceans.

5 6

L. Ca

flisch,

‘What Is a Geographically Disadvantaged State? ’ (1987) 18

ODIL ,

p. 643.

fi nition of geographically disadvantaged States, see S. C. Vasciannie, Land-Locked

For an analysis of the de

and Geographically Disadvantaged States in the International Law of the Sea (Oxford, Clarendon Press, 1990), pp. 7– 16. 7 8

Ca

flisch,

‘What Is a Geographically Disadvantaged State?’, pp. 648–650.

At UNCLOS III, twenty-six States considered themselves as geographically disadvantaged States. These States were: Algeria, Bahrain, Belgium, Bulgaria, Cameroon, Ethiopia, Finland, Gambia, German Democratic Republic, Federal Republic of Germany, Greece, Iraq, Jamaica, Jordan, Kuwait, the Netherlands, Poland, Qatar, Romania, Singapore, Sudan, Sweden, Syria, Turkey, United Arab Emirates and Zaire. Ca a Geographically Disadvantaged State?’, p. 658.

flisch,

‘What Is

482 Protection of Community Interests at Sea

2 LAND-LOCKED STATES AND ACCESS TO THE SEA

2.1 Legal Regime Prior to the LOSC While it is uncertain whether a general right of transit exists in customary international law,

9

several treaties after World War I provided for transit rights in general. For example,

the Convention and Statute on Freedom of Transit of 1921 provided free and nondiscriminatory transit across the territory of Contracting States by rail or waterway on routes in use convenient for international transit.

10

However, this Convention aimed at

specifying the right of freedom of transit in general and did not address special issues respecting transit for land-locked States. Article V(2) of the 1947 GATT also provided the freedom of transit through the territory of each Contracting Party, via the routes most convenient for international transit, without explicit reference to land-locked States. The

11

first specific rule with regard to the right of transit for land-locked States to and from the

sea was embodied in the 1958 Convention on the High Seas. Article 3 of the Convention reads:

1. In order to enjoy the freedom of the seas on equal terms with coastal States, States having no sea coast should have free access to the sea. To this end States situated between the sea and a State having no sea coast shall by common agreement with the latter, and in conformity with existing international conventions, accord: (a) to the State having no sea coast, on a basis of reciprocity, free transit through their territory; and (b) to ships

flying the flag of that State treatment equal to that accorded to their own ships,

or to the ships of any other States, as regards access to seaports and the use of such ports. 2. States situated between the sea and a State having no sea coast shall settle, by mutual agreement with the latter, and taking into account the rights of the coastal State or State of transit and the special conditions of the State having no sea coast, all matters relating to freedom of transit and equal treatment in ports, in case such States are not already parties to existing international conventions.

As shown by the term ‘should’, this provision does not provide the

right

of the land-locked

States to access to and from the sea. Further to this, the transit relies on agreement between the 12

States concerned on the basis of the principle of reciprocity.

It follows that the transit of land-

locked States to and from the sea depends on the goodwill of the coastal States concerned.

9

It appears that writers are cautious about the existence of the right of transit at the customary law level. See for instance, Ca

flisch,

‘Land-Locked States ’, pp. 77–79; R. R. Churchill and A. V. Lowe,

The Law of the Sea ,

3rd edn (Manchester University Press, 1999), pp. 440–441. 10 11 12

Article 2 of the Statute. 7 55

UNTS, p.

LNTS, p. 13. Entered into force 31 October 1922.

187. Entered into force 1 January 1948.

The requirement of reciprocity in this context seems to be questionable. As a land-locked State lacks a sea

finition, that State is incapable of giving anyone the right of access to the sea. Caflisch,

coast by de

Locked States’, p. 89.

‘Land-

483

Land-Locked and Geographically Disadvantaged States The number of land-locked States has increased particularly in Africa owing to decolonisation in the early 1960s. The growing demands of newly independent land-locked States led to the adoption of the 1965 New York Convention on Transit Trade of Land-Locked States (hereinafter 1965 New York Convention).

13

This was the

first

multilateral treaty devoted

exclusively to the right of transit of land-locked States. The Preamble of the Convention reaf

firmed, inter alia, that the recognition of the right of each land-locked State of free access

to the sea is an essential principle for the expansion of international trade and economic development. Article 2(1) makes clear that freedom of transit is to be granted under the terms of this Convention for traf

fic in transit and means of transport. However, the rules governing

the use of means of transport shall be established by common agreement among the Contracting States concerned pursuant to Article 2(2). Under Article 15, the provision of this Convention shall be applied on the basis of reciprocity. Article 11 also reserves the right of the transit State to prohibit transit ‘ on the grounds of public morals, public health or security or as a precaution against diseases of animals or plants or against pests’ and to take ‘ any action necessary for the protection of its essential security interests ’. The 1965 New York Convention was rati

14

fied only by a relatively small number of States,

and major transit States, such as France and Pakistan, remained outside the Convention. Although the New York Convention achieved only limited success, this Convention was later to provide a good basis for negotiations at UNCLOS III.

15

2.2 Legal Regime of the LOSC

The LOSC devotes Part X to the right of access of land-locked States to and from the sea and of freedom of transit. The key provision concerning the right of transit is Article 125:

1.

Land-locked States shall have the right of access to and from the sea for the purpose of exercising the rights provided for in this Convention including those relating to the freedom of the high seas and the common heritage of mankind. To this end, land-locked States shall enjoy freedom of transit through the territory of transit States by all means of transport.

2.

The terms and modalities for exercising freedom of transit shall be agreed between the landlocked States and transit States concerned through bilateral, subregional or regional agreements.

3.

Transit States, in the exercise of their full sovereignty over their territory, shall have the right to take all measures necessary to ensure that the rights and facilities provided for in this Part for land-locked States shall in no way infringe their legitimate interests.

Overall these provisions are intended to achieve a balance between the rights of both a land-locked State and a transit State or States.

13 14

597

16

UNTS, p. 3. Entered into force in 1967.

The term ‘transit State’ means any Contracting State with or without a sea coast, situated between a landlocked State and the sea, through whose territory ‘traf

15 16

fic in transit

H. Tuerk, ‘The Land-Locked States and the Law of the Sea (2007)

Virginia Commentary, vol. 3, p. 418.

’ passes (Article 1(c)).

Revue belge de droit international, p. 98.

484 Protection of Community Interests at Sea It is signi

ficant that Article 125(1) unequivocally recognises the land-locked State s right ’

of access to and from the sea and freedom of transit. It may be said that unlike Article 3 of 17

the Geneva Convention, the LOSC provides a pactum de contrahendo on this matter. true that the right of access to and from the sea is quali

It is

fied by the second paragraph which

provides that ‘ terms and modalities for exercising freedom of transit’ shall be a matter of special agreement with the transit State or States.

18

Even so, it must be emphasised that

freedom of transit does not depend for its exercise on the conclusion of special agreements, 19

nor is it granted ‘on the basis of reciprocity ’ . seems to be fully justi

fied.

The deletion of the requirement of reciprocity

20

Article 125(3) allows transit States to take ‘ all measures necessary’ to safeguard their legitimate interests. However, it would be unacceptable for the transit States to take measures which totally denied the freedom of transit of the land-locked States in light of the principle of good faith and the prohibition of an abuse of right provided in Article 300 of the LOSC. Further, Article 130(1) obliges transit States to take all appropriate measures to avoid delays or other dif

ficulties of a technical nature in traffic in transit. Yet one cannot preclude the

possibility that a dispute could arise between a land-locked State and a transit State with regard to the conclusion of a special agreement.

21

Article 126 provides for exclusion of the application of the most-favoured-nation clause to the provisions of the LOSC and special agreements relating to the exercise of the right of access to and from the sea. Article 126 serves to preserve the preferential status granted to land-locked States under the LOSC.

22

Under Article 127, traf

fic

in transit shall not be

fic fic. Furthermore, means of transport in transit

subject to any customs duties, taxes or other charges except charges levied for speci service rendered in connection with such traf

and other facilities provided for and used by land-locked States shall not be subject to taxes or charges higher than those levied for the use of means of transport of the transit State. The right of transit of land-locked States is provided in several treaties.

24

23

By way of

illustration, under Article 4 of the 1992 Framework Agreement between Peru and Bolivia,

17

L. Ca

flisch,

‘La convention des Nations Unies sur le droit de la mer adoptée le 30 avril 1982’ (1983) 39

ASDI,

p. 97. 18

‘Transit State means a State, with or without a sea coast, situated between a land-locked State and the sea,

fic in transit passes

through whose territory traf 19 20

’ (LOSC, Article 124(1)(b)).

Virginia Commentary, vol. 3, p. 418. J. Monnier, ‘Right of Access to the Sea and Freedom of Transit’, in R.-J. Dupuy and D. Vignes, A Handbook

on the New Law of the Sea, vol. 1 (Dordrecht, Nijhoff, 1991), p. 519. 21

It might be relevant to note that in April 2013, Bolivia instituted proceedings against Chile before the ICJ, asserting that Chile had breached the obligation to negotiate with Bolivia in order to reach an agreement

fi c Ocean. However, the ICJ dismissed Bolivia s claim.

granting Bolivia fully sovereign access to the Paci

fi

’

Obligation to Negotiate Access to the Paci c Ocean (Bolivia v Chile) , ICJ Reports 2018, para. 177. 22

K. Uprety and A. R. Maggio, ‘Article 126’, in A. Prölss (ed.), United Nations Convention on the Law of the Sea:

A Commentary (Munich, Beck/Oxford, Hart Publishing/Baden-Baden, Nomos, 2017), p. 912. 23

‘Means of transport’ means: (i) railway rolling stock, sea, lake and river craft and road vehicles; (ii) where

local conditions so require, porters and pack animals (Article 124(1)(d)). 24

For treaties in this matter, see H. Tuerk, ‘Land-locked and Geographically Disadvantaged States’, in Oxford

Handbook, pp. 341–342. See also L. Savadogo, ‘Status juridiques des Etats sans littoral et des Etats géographiquement désavantagés’, in M. Forteau and J.-M. Thouvenin (eds.), Traité de droit international de

la mer (Paris, Pedone, 2017), pp. 873 –875.

485 Land-Locked and Geographically Disadvantaged States 25

the two countries mutually recognise the right of free transit of persons.

Under Article 2 of

the Agreement, Peru agrees to grant the free use of its port facilities and shall develop an industrial and beach resort of free zone at the port of Ilo. Under the 1994 Djibouti Port Utilisation Agreement, Djibouti guarantees to Ethiopia the permanent right of access to the sea and to transit goods from and to Ethiopia through its territory. It also guarantees to 26

Ethiopia the right to use the installations and equipment of the Port of Djibouti.

An example

of a multilateral treaty in relation to the right of transit of land-locked States is provided by the 1985 Northern Corridor Transit Agreement, which was replaced by the 2007 Northern Corridor Transit and Transport Agreement.

27

Another example is the 1996 SADC Protocol on

Transport, Communications and Meteorology in the Southern African Development Community (SADC) Region.

28

The Protocol obliges the Member States to apply ‘ the right of land-

locked Member States to unimpeded access to and from the sea ’.

29

At the same time, the

Protocol makes clear that ‘Member States shall, in the exercise of their full sovereignty over their territory, have the right to take all measures necessary to ensure that the application of the principles contemplated in paragraph 2 shall in no way infringe their legitimate interests ’.

30

In addition, the 2010 Revised African Maritime Transport Chapter contains provisions

concerning cooperation between land-locked States and transit parties. In reality, land-locked developing States encounter considerable dif

31

ficulties when exer-

cising their right of transit. To address the special needs of land-locked developing States, the Almaty Programme of Action was adopted in 2003.

32

This Programme aimed, inter alia,

to ‘ secure access to and from the sea by all means of transport according to applicable rules of international law ’.

25

33

The Almaty Programme highlighted

five priorities: improvements of

Framework Agreement between the Government of Peru and the Government of Bolivia on the ‘Grand Marshal Andrés de Santa Cruz’ Binational Project for Friendship, Cooperation and Integration. Text in: (1993) 32

ILM, p. 282; (1992) 21 Law of the Sea Bulletin, p. 87. See also Agreement between the Government

of the Republic of Peru and the Government of the Republic of Bolivia concerning Facilities for the Transit of Persons between the Territories of Peru and Bolivia. Text in: 26

ibid., p. 286.

Article 1. The 1994 Djibouti Port Utilisation Agreement between the Transitional Government of Ethiopia and the Government of the Republic of Djibouti. Text in: (1998) 38

Law of the Sea Bulletin, p. 56. See also

Transit and Port Service Agreement between the Transitional Government of Ethiopia and the Government of the State of Eritrea, in 27

ibid., p. 58.

Entered into force in 2012. The electronic text is available at: www.ttcanc.org/documents.php. The Contracting Parties to the Agreement are: Burundi, Kenya, Rwanda, Uganda and the Democratic Republic of the Congo (the DRC). The DRC is considered as a geographically disadvantaged State. ‘The Northern Corridor’ means ‘[t]he transport infrastructure and facilities in East Africa served by the port of Mombasa in the Republic of Kenya’ (Article 2 of the 1985 Northern Corridor Transit Agreement).

28

Entered into force July 1998. The text of the Protocol is available at: www.sadc.int/documents-publications/ show/815. The Parties to the Protocol include six land-locked States, namely, Botswana, Lesotho, Malawi, Swaziland, Zambia and Zimbabwe.

29 31

Article 3.2(2)(b).

30

Article 3.2(3).

Chapter VI. The text of this instrument is available at: www.peaceau.org/uploads/revised-african-maritimetransport-charter-en.pdf.

32

Almaty Programme of Action: Addressing the Special Needs of Landlocked Developing Countries within a New Global Framework for Transit Transport Cooperation for Landlocked and Transit Developing Countries, A/CONF.202/3, available at: http://unohrlls.org/almaty-declaration-and-programme-of-action/.

33

Ibid., para. 10.

486 Protection of Community Interests at Sea fundamental transit policy issues, infrastructure development and maintenance, international trade and trade facilitation, technical and monitoring and follow-up on agreements. obstacle to establishing an ef

ficient

34

financial international assistance, and

Given that inadequate infrastructure is a major

transit transport system in land-locked and transit

developing States, improvement of transport infrastructure, such as rail, road, ports, inland waterways, pipelines and communication, is of particular importance.

35

3 THE NAVIGATIONAL RIGHTS OF LAND-LOCKED STATES In the nineteenth century, Switzerland raised an issue in relation to the navigational rights of land-locked States. In 1864, the Swiss government obtained from the Swiss Parliament permission to form a merchant marine under the Swiss

flag. Subsequently, however, the Swiss

government abandoned its plan, and ships belonging to Swiss nationals were obliged to sail under the

flag of foreign States. It was not until new land-locked States

– Austria, Hungary,

Czechoslovakia – appeared on the map of Europe at the end of World War I that the right of ships of land-locked States to

fly a national flag was recognised. This right was recognised by and was confirmed by the Declaration of Barcelona of 1921. 36

37

the Treaty of Versailles of 1919,

Today it is beyond doubt that land-locked States have rights of navigation. In this regard, Article 2 of the 1958 Convention on the High Seas makes clear that the high seas is open to all nations, and both coastal and non-coastal States enjoy freedom of navigation. Article 4 of the Convention clearly provides: ‘ Every State, whether coastal or not, has the right to sail ships under its

flag on the high seas.

’ Furthermore, Article 14(1) of the Convention on

the Territorial Sea and the Contiguous Zone stipulates that ships of all States, whether coastal or not, shall enjoy the right of innocent passage through the territorial sea.

firms that both coastal and land-locked States enjoy freedom of navigation on the high seas. Article 90 explicitly con firms the rights of navigation of every State, whether coastal or land-locked. As a corollary, Article 131 holds that ships flying the flag of Article 87 of the LOSC reaf

land-locked States shall enjoy treatment equal to that accorded to other foreign ships in maritime ports. Furthermore, Article 17 af

firms the right of innocent passage of all States, whether coastal

or land-locked. The same applies to the right of transit passage, through archipelagic waters

39

38

the right of innocent passage

and the right of archipelagic sea lanes passage.

40

4 L A N D - L O C K E D A N D G E O G R A P H I C A L L Y D I S A D V A N T A GE D S T A T E S AND USES OF THE OCEANS

4.1 Fishing Rights Like other States, land-locked and geographically disadvantaged States have the freedom to

fish 34 37 38

on the high seas. In this regard, an issue to be examined involves the right of such

35

Ibid., paras. 11 et seq.

Ibid., paras. 15–31.

36

Article 273.

Declaration Recognising the Right to a Flag of States Having no Sea Coast, 7 LNTS, p. 73. LOSC, Article 38(1).

39

LOSC, Article 52(1).

40

LOSC, Article 53(2).

487 Land-Locked and Geographically Disadvantaged States States to participate in the

fisheries of the EEZ of foreign States. The LOSC contains detailed

provisions on this subject in Articles 69 to 72. Article 69 provides for the

fishing rights of land-locked States. Article

69(1) stipulates

that land-locked States shall have the right to participate, on an equitable basis, in the exploitation of an appropriate part of the surplus of the living resources of the EEZ of coastal States of the same subregion or region. Under Article 69(2), however, the terms and modalities of such participation must be established by the States concerned through special agreements taking into account, inter alia, the following factors:

• the need to avoid effects detrimental to

fishing communities or industries of the coastal

State, • the extent to which the land-locked State is participating in existing agreements in the

exploitation of living resources of the EEZ of other coastal States, • the need to avoid a particular burden for any single coastal State, and • the nutritional needs of the populations of the respective States.

While the participatory right of developed land-locked States is limited to the surplus of the living resources, this limitation does not apply to developing land-locked States by virtue of Article 69(3). Under Article 69(4), developed land-locked States can participate in the exploitation of living resources only in the EEZ of developed coastal States of the same subregion or region. It follows that the participatory right of developed land-locked States is more restricted than that of developing land-locked States.

41

Under Article 70, similar rules apply to geographically disadvantaged States. For the purpose of Part V dealing with the EEZ, geographically disadvantaged States are de

fined as:

coastal States, including States bordering enclosed or semi-enclosed seas, whose geographical situation makes them dependent upon the exploitation of the living resources of the exclusive economic zones of other States in the subregion or region for adequate supplies of

fi

sh for the

nutritional purposes of their populations or parts thereof, and coastal States which can claim no exclusive economic zones of their own.

However, it should be noted that the above de the EEZ.

finition is valid only within the framework of

42

Article 70(1) provides that geographically disadvantaged States shall have the right to participate, on an equitable basis, in the exploitation of an appropriate part of the surplus of the living resources of the EEZ of the same subregion or region. The terms and modalities of such participation must be established by the States concerned through special agreement taking into account similar factors already enumerated in connection with land-locked States pursuant to Article 70(3). While the participatory rights of developed geographically

41

For example, see Declaration of Malta of 20 May 1993 and the Declaration of Spain of 15 January 1997, available at: www.un.org/Depts/los/convention_agreements/convention_declarations.htm.

42

Ca

flisch,

‘What Is a Geographically Disadvantaged State? ’, pp. 655–656.

488 Protection of Community Interests at Sea disadvantaged States are limited to the surpluses, this limitation does not seem to apply to developing States falling into the same category by virtue of Article 70(4). Under Article 70(5), developed geographically disadvantaged States can participate in the exploitation of living resources in the EEZ of the developed coastal States of the same subregion or region. The above rules are supplemented by two provisions applicable to both land-locked and geographically disadvantaged States. Under Article 71, Articles 69 and 70 do not apply in the case of a coastal State whose economy is overwhelmingly dependent on the exploitation of the living resources of its EEZ. A typical example is Iceland. Article 72 further provides that the rights derived from Articles 69 and 70 may not be transferred to third States without consent of the coastal States concerned. The rules concerning the right of participation call for a number of comments.

43

First, the exercise of the right of participation relies on the ‘terms and modalities ’ of special agreements to be concluded with the coastal State. It would seem to follow that the right of participation depends on the goodwill of the coastal State concerned. The term ‘ equitable basis’ referred to in Articles 69(1) and 70(1) also remains obscure. It is true that in

the case of refusals on the part of the coastal State to allocate to any States the whole or part of a surplus in conformity with Articles 62, 69 and 70, Article 297(3)(b)(iii) of the LOSC provides a remedy by way of the compulsory conciliation procedure. However, in no case shall the conciliation commission substitute its discretion for that of the coastal State as provided in Article 297(3)(c). Furthermore, the report of the conciliation commission is not binding. Second, as discussed earlier, the coastal State has a wide discretion for determining the existence of a surplus of marine living resources.

44

Accordingly, the coastal State may

nullify the right of participation by manipulating the determination of the allowable catch and harvesting capacity so as to avoid any surplus. It is true that the situation seems to be different for developing land-locked and geographically disadvantaged States because the surplus rules set out in Articles 69(1) and 70(1) do not seem to apply to those States by virtue of Articles 69(3) and 70(4). Yet the fact remains that the exercise of the right of participation depends on the ‘terms and modalities’ of special agreements to be concluded with the coastal State.

fined in Articles 69 and 70, and the finition given to these

Third, the words ‘region’ and ‘subregion ’ are not de

meaning of these words therefore remains obscure. The wider the de

terms, the wider the circle of the land-locked and geographically disadvantaged States entitled to share surpluses of marine living resources and, as a result, the smaller the share allocated to each of them. Fourth, the validity of the discriminatory application of the participatory right between developed land-locked and geographically disadvantaged States and developing States

43

fl isch,

For critical comments on this subject, see L. Ca

‘The Fishing Rights of Land-Locked and Geographically

Disadvantaged States in the Exclusive Economic Zone’, in B. Conforti (ed.), (Milan, Giuffrè, 1983), pp. 40 44

et seq.

See Chapter 7, section 3.2 of this book.

La zone economica esclusiva

489 Land-Locked and Geographically Disadvantaged States belonging to these categories needs further consideration. As noted, the developing landlocked and geographically disadvantaged States are entitled to participate in the exploitation of living resources of the EEZ of their region or subregion, regardless of the existence of a surplus. Developing countries belonging to these categories are generally situated in the neighbourhood of developing coastal States. As a consequence, developing coastal States will have to share their living resources with their neighbouring land-locked and geographically disadvantaged States. By contrast, developed land-locked and geographically disadvantaged States are entitled to surpluses only within the EEZ of developed neighbouring coastal States of the same subregion or region. In general, developed States falling within these categories are located in the vicinity of developed coastal States. Yet developed coastal States have no obligation to share their living resources of the EEZ where there is no surplus. It would seem to follow that the developed coastal States can be considered as the main bene

ficiaries of the rules.

Fifth, the term ‘overwhelming dependence ’ in Article 71 remains obscure. Thus there is a concern that the abstract formulation might induce countries other than Iceland to plead ‘ overwhelming dependence’ and contribute to undermining the participatory rights of land-

locked and geographically disadvantaged States. Finally, in light of the paucity of State practice on this subject, whether

and

to

what

extent

Articles

69 –72

of

the

LOSC

45

have

it remains uncertain become

customary

international law.

4.2 Exploitation of Non-living Resources in the Oceans Land-locked States have no right to participate in the exploration and exploitation of natural resources on the continental shelf. The only counterbalance is Article 82 of the LOSC, which sets out obligations in payments and contributions with regard to the exploitation of the continental shelf beyond 200 nautical miles.

46

In this regard, it must be recalled

that payments or contributions shall be made through the International Seabed Authority ‘ on the basis of equitable sharing criteria, taking into account the interests and needs of

developing States, particularly the least developed and the land-locked among them ’ . While the legal regime governing the Area does not directly address special issues in relation to land-locked and geographically disadvantaged States, several provisions in Part XI of the LOSC refer to those States. For instance, Article 140 provides that activities in the Area shall be carried out for the bene

fit

of mankind as a whole, ‘ irrespective of the

geographical location of States, whether coastal or land-locked ’ . Article 141 stipulates that the Area shall be open to use exclusively for peaceful purposes by all States, whether coastal

45

In 1994, UNDOALOS stated: ‘Morocco and Togo are the only coastal States which indicate their readiness to allow neighbouring land-locked States access to the living resources of their exclusive economic zones.’ UNDOALOS, The Law of the Sea: Practice of States at the Time of Entry into Force of the United Nations

Convention on the Law of the Sea (New York, United Nations, 1994), p. 41. See also, S. Vasciannie, ‘LandLocked and Geographically Disadvantaged States’ (2005) 31 Commonwealth Law Bulletin, p. 66. 46

See Chapter 4, section 4.6 of this book.

490

Protection of Community Interests at Sea or land-locked, without discrimination. Article 148 ensures the effective participation of developing States in activities in the Area, having due regard ‘ in particular to the special need of the land-locked and geographically disadvantaged among them to overcome obstacles arising from their disadvantaged location, including remoteness from the Area and dif

ficulty of access to and from it . ’

Article 152(1) obliges the Authority to avoid discrimination in the exercise of its powers and function. However, Article 152(2) goes on to state that the special consideration for developing States, including particular consideration for the land-locked and geographically disadvantaged among them, speci

fically provided for in Part XI shall be permitted. As

mentioned earlier, the Council of the Authority consists of thirty-six members of the Authority elected by the Assembly. Six members must be elected from among developing States Parties, representing special interests. The special interests to be represented include those of land-locked or geographically disadvantaged States.

47

Article 160(2)(k) empowers

the Assembly of the Authority to consider problems of a general nature in connection with activities in the Area arising in particular for developing States, ‘ particularly for landlocked and geographically disadvantaged States ’. Notably, these provisions apply only to developing land-locked and geographically disadvantaged States. While overall the above provisions seek to avoid excluding land-locked and geographically disadvantaged States from the bene

fits to be derived from the activities in the Area, the effect of those provisions 48

does not give those States any preferential treatment over other States.

fi

4.3 Marine Scienti

c Research

Like other States, land-locked and geographically disadvantaged States have interests in marine scienti scienti

fic research. In fact, Austria and Switzerland have been engaged in marine

fic research for many years and have also been members of the IOC.

49

Land-locked and geographically disadvantaged States enjoy the freedom of marine scienti

fic research on the high seas. In this regard, the LOSC contains a special provision,

namely Article 254, dealing with the rights of neighbouring land-locked and geographically disadvantaged States. Under Article 254(1), (2) and (4), land-locked and geographically disadvantaged States are entitled to be informed of any proposed marine scienti

fic research

project. The neighbouring land-locked and geographically disadvantaged States shall, at their request, be given the opportunity to participate in the proposed marine scienti research project through quali

fic

fied experts appointed by them and not objected to by the

coastal State. The participation of those States in the project relies on the conditions agreed between the coastal State concerned and the State or competent international organisations conducting the marine scienti

47

fic research pursuant to Article 254(3).

Section 3(15)(d) of the 1994 Implementation Agreement on Part XI of the UN Convention on the Law of the Sea. See also LOSC, Article 161(1)(d) and (2)(a). As of 2010, the Czech Republic has been elected a member of the Council.

48

Tuerk, ‘The Land-locked States’, p. 104.

49

Ibid., p. 92.

491 Land-Locked and Geographically Disadvantaged States The development of technology is of particular importance with a view to promoting

fic research. scienti fic and

marine scienti the marine

50

technical assistance in this

Article 266 thus requires States to promote the development of

technological capacity of States which may need and request

field, particularly developing States, including land-locked and

geographically disadvantaged States, with regard to the exploration and exploitation of marine resources, marine environmental protection and marine scienti

fic research. Article

269(a) requires States to establish programmes of technical cooperation for the effective transfer of all kinds of marine technology to States which may need technical assistance in this

field, particularly the developing land-locked and geographically disadvantaged States.

Furthermore, Article 272 places an obligation upon States to endeavour to ensure that competent international organisations coordinate their activities, ‘ taking into account the interests and needs of developing States, particularly land-locked and geographically disadvantaged States ’.

5 CONCLUSIONS The matters considered in this chapter can be summarised as follows. (i) In comparison with the 1958 Geneva Convention on the High Seas, the LOSC makes clear that land-locked States have a right of access to and from the sea under Article 125(1). It is true that the terms and modalities for exercising freedom of transit rely on special agreements to be concluded with the transit States concerned. However, it is not suggested that the transit State is in a position to paralyse freedom of transit by refusing to enter into a special agreement.

firmed by various treaties,

(ii) The navigational rights of land-locked States have been af

including the LOSC. The navigational rights of those States can reasonably be considered as part of customary international law. (iii) Under the LOSC, land-locked and geographically disadvantaged States are entitled to participate in the exploitation of living resources in the EEZ. However, the participatory rights remain uncertain for the following reasons: • Their exercise depends on special agreements to be concluded with the coastal State. • The coastal State has a wide discretion in setting the surplus of marine living resources. • The coastal State may attempt to plead overwhelming dependence on

fisheries in its EEZ.

• The scope of ‘region’ and ‘ subregion’ remains obscure.

(iv) Land-locked States have no right to participate in the exploration and exploitation of natural resources on the continental shelf. While Part XI of the LOSC governing the Area pays special attention to land-locked States, it is not suggested that they should receive preferential treatment in relation to seabed activities.

50

See Chapter 10, section 6 of this book.

492 Protection of Community Interests at Sea (v) Concerning marine scienti

fic research in the EEZ, the neighbouring land-locked and

geographically disadvantaged States are entitled to be given relevant information and the opportunity to participate, whenever feasible, in proposed marine scienti

fic

research by

virtue of Article 254 of the LOSC. On the high seas, like other States, land-locked and geographically disadvantaged States enjoy the freedom of marine scienti

fic research.

FURTHER READING L. Ca

flisch,

‘Land-Locked States and their Access to and from the Sea’ (1978) 49 BYIL, pp. 71– 100.

‘The Fishing Rights of Land-Locked and Geographically Disadvantaged States in the Exclusive

Economic Zone’, in B. Conforti (ed.), La zone economica esclusiva (Milan, Giufffrè, 1983), pp. 29–48. ‘What Is a Geographically Disadvantaged State? ’ (1987) 18 ODIL, pp. 641 –663.

Z. Haquani, ‘Les pays sans littral et le droit de la mer ’, in J. Crawford et al. (eds.), The International Legal Order: Current Needs and Possible Responses, Essays in Honour of Djamchid Momtaz (Leiden, Brill/Nijhoff, 2017), pp. 373–382. J. L. Kateka, ‘Landlocked and Geographically Disadvantaged States’ , in IMLI Manual, vol. I, pp. 431–442. S. P. Menefee, ‘The “Oar of Odysseus” : Land-Locked and Geographically Disadvantaged States in Historical Perspective ’ (1992) 23 California Western International Law Journal, pp. 1 –65. J. Monnier, ‘Right of Access to the Sea and Freedom of Transit ’, in R.-J. Dupuy and D. Vignes, A Handbook on the New Law of the Sea, vol. 1 (Dordrecht, Nijhoff, 1991), pp. 501–523. A. M. Puñal, ‘The Right of Land-Locked and Geographically Disadvantaged States in Exclusive Economic Zones’ (1992) 23 Journal of Maritime Law and Commerce, pp. 429–459. L. Savadogo, Essai sur une théorie générale des Etats sans littoral: l ’expérience africaine (Paris, L.G.D.J., 1997). J. Symonides, ‘ Geographically Disadvantaged States under the 1982 Convention on the Law of the Sea’ (1988-I) 208 RCADI, pp. 287 –406. P. Tavernier, ‘Les nouveaux Etats sans littoral d’ Europe et d’ Asie et l’accès à la mer ’ (1993) 97 RGDIP, pp. 727–744. H. Tuerk, ‘Landlocked and Geographically Disadvantaged States ’, in Oxford Handbook, pp. 325–345.

š ć and Š ošić (eds.), Contemporary Developments in International Law: Essays in Honour of

‘Forgotten Rights?: Landlocked States and the Law of the Sea ’, in R. Wolfrum, M. Ser i

T.

Budislav Vukas (Leiden, Brill/Nijhoff, 2015), pp. 337–359. UNDOALOS, The Law of the Sea: Rights of Access of Land-Locked States to and from the Sea and Freedom of Transit: Legislative History of Part X, Articles 124 to 132 of the United Nations Convention on the Law of the Sea (New York, United Nations, 1987). K. Uprety, The Transit Regime for Land-Locked States: International Law and Development Perspectives (Washington DC, World Bank, 2005). S. C. Vasciannie, Land-Locked and Geographically Disadvantaged States in the International Law of the Sea (Oxford, Clarendon Press, 1990).

13

Peaceful Settlement of International Disputes Main Issues

Peaceful settlement of international disputes occupies an important place in international law in general and the law of the sea is no exception. In this respect, the LOSC establishes a unique mechanism combining the voluntary and compulsory procedures for dispute settlement. It is particularly signi

ficant that the LOSC sets out the compulsory dispute settlement

procedures as an integrated part of the Convention. Furthermore, it is of particular interest to note that a new permanent international tribunal, namely, ITLOS, was established. The dispute settlement procedures of the LOSC provide an interesting insight into the development of dispute settlement in international law. Thus this chapter will address the dispute settlement procedures under the Convention with particular reference to the following issues: (i) What are the principal features of the dispute settlement procedures of the LOSC? (ii) What is the signi

ficance of and limitations associated with the compulsory procedures

for dispute settlement under the LOSC? (iii) What is ITLOS, and what is the role of the variety of chambers? (iv) What is the role of ITLOS in the development of the law of the sea? (v) Does the establishment of ITLOS create a risk of fragmentation of international law?

1 INTRODUCTION Since rules of international law, customary or conventional, are interpreted and applied by States individually (auto-interpretation/auto-application), it is not uncommon that the same rule may be interpreted and applied differently by different States. Experience demonstrates that different interpretations of a rule may become a source of international disputes. Hence it can be argued that the ef

ficacy

of rules of international law relies

essentially on the existence of an effective mechanism of international dispute settlement,

1

493

L. Ca

flisch,

‘Cent ans de règlement paci

fique des différends interétatiques

’ (2001) 288

RCADI

1

, pp. 257–261.

494

Protection of Community Interests at Sea and this is particularly true of the LOSC. Indeed, as many provisions of the LOSC represent a complex balance of the interests of various actors, they are not free from uncertainty in their interpretation and application. Accordingly, the establishment of mechanisms for international dispute settlement is crucial with a view to ensuring the stability and integrity of the Convention. In response, the LOSC establishes unique procedures for international dispute

settlement.

Such

procedures

have

at

least

four

principal

features

which

merit

particular attention. First, at UNCLOS I, only an Optional Protocol Concerning Compulsory Settlement of Dispute

was

settlement

adopted

procedures,

as

a

distinct

including

treaty.

2

By

compulsory

contrast,

procedures,

the as

LOSC an

establishes

integrated

part

dispute of

the

Convention. The built-in procedures for dispute settlement can be considered as an important tool for securing the integrity of the interpretation of the Convention. Second, the LOSC sets out compulsory procedures for dispute settlement entailing decisions that bind the Parties to the Convention. Compulsory dispute settlement contributes to secure the uniform interpretation of the LOSC. The third feature concerns the establishment of a new permanent judicial body, namely ITLOS. While ITLOS is largely modelled on the ICJ, it has, as will be seen, some innovations, such as a wide range of

locus standi

before the Tribunal. It is conceivable that the ITLOS

jurisprudence will come to have a valuable role in the clari

fi

cation of relevant rules of the

LOSC as well as the law of the sea in general. Finally, the LOSC creates a

fl

exible system allowing the States Parties to choose one or

more of the different procedures for compulsory settlement set out in Part XV of the Convention. This is a unique mechanism for reconciling the principle of free choice of means with compulsory procedures for dispute settlement. The dispute settlement procedures are complex, and a full treatment of this subject is beyond the scope of this chapter, which has the more modest purpose of providing an outline of the procedures for international dispute settlement in the LOSC.

2 BASIC STRUCTURE OF DISPUTE SETTLEMENT PROCEDURES IN THE LOSC

2.1 General Considerations

The LOSC devotes Part XV to the settlement of disputes. This part is composed of three sections. Section 1 contains general provisions which basically involve voluntary dispute settlement procedures. Section 2 provides compulsory procedures for dispute settlement. Section 3 sets out limitations and optional exceptions to the compulsory procedures. In addition to this, the LOSC contains provisions respecting dispute settlement in various other parts. Section 5 of Part XI is devoted to dispute settlement and advisory opinions by the Seabed Chamber of ITLOS. Dispute settlement procedures are also embodied in Annex V

2

See Chapter 1, section 5.2 of this book.

495 Peaceful Settlement of International Disputes (Conciliation),

Annex

VI

(ITLOS),

Annex

VII

(Arbitration)

and

Annex

VIII

(Special

Arbitration). Notably, in some cases, the dispute settlement procedures of the LOSC may be extended beyond Parties to the Convention itself. In this regard, Article 30(1) of the 1995 Fish Stocks Agreement makes clear that the procedures for dispute settlement in Part XV of the LOSC apply

mutatis mutandis

to any dispute between States Parties to

the Agreement. In

accordance with this provision, States Parties to the Agreement, which are not Parties to the LOSC, may also have recourse to the dispute settlement procedures of the Convention. This mechanism is unique in the sense that a State Party to one treaty can use the dispute settlement procedures of another treaty to which it is not a Party. Article 30(2) of the Fish Stocks Agreement further provides:

The provisions relating to the settlement of disputes set out in Part XV of the Convention apply

mutatis mutandis

to any dispute between States Parties to this Agreement concerning the

interpretation or application of a subregional, regional or global straddling

fi

sh stocks or highly migratory

fi

fi

sheries agreement relating to

sh stocks to which they are parties, including any

dispute concerning the conservation and management of such stocks, whether or not they are also Parties to the Convention.

The effect of this provision seems to be that as between Parties to the Fish Stocks Agreement, the dispute settlement machinery of the LOSC is incorporated into existing treaties

with

regard

to

straddling

or

highly

migratory

fish

3

stocks.

Moreover,

the

2006 Southern Indian Ocean Fisheries Agreement provides for the application of the compulsory

procedures under section 2, Part XV of the LOSC to

Contracting Parties.

4

a dispute between

In addition, considering that the LOSC and the 1994 Implementation

Agreement are to be read as a single instrument, it appears logical to argue that the dispute settlement procedures of Part XI of the LOSC would apply to disputes concerning the interpretation and the application of that Agreement.

5

Articles 279 and 280 of the LOSC provide two cardinal principles on this subject. The

first

is the principle of peaceful settlement of international disputes. As stressed in various instruments,

6

the obligation of peaceful settlement of international disputes is the corollary

of the prohibition of the use of force. This principle is reinforced by Article 279 of the LOSC, which provides:

3

A. Boyle, ‘Problems of Compulsory Jurisdiction and the Settlement of Disputes Relating to Straddling Fish Stocks ’ (1999) 14

4 5 6

IJMCL, p. 16.

Article 20(1). For the text of the Agreement, see www.apsoi.org/node/3. Boyle, ‘Problems of Compulsory Jurisdiction’, p. 23. Article 2(3) and (4) of the Charter of the United Nations, 892

UNTS , p. 119; the Manila Declaration on the

Peaceful Settlement of International Disputes, UN General Assembly Resolution 37/10, 15 November 1982. See Preamble and section I, para. 13.

496

Protection of Community Interests at Sea

States Parties shall settle any dispute between them concerning the interpretation or application of this Convention by peaceful means in accordance with Article 2, paragraph 3, of the Charter of the United Nations and, to this end, shall seek a solution by the means indicated in Article 33, paragraph 1, of the Charter.

The second principle concerns free choice of means in dispute settlement. Under the principle, States can freely choose the appropriate means of international dispute settlement and no State is obliged to submit its disputes to any procedure of dispute settlement without its consent. This principle has been con

firmed by various instruments. For example, Article

33(1) of the UN Charter is clear on this point:

The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall,

fi

rst of all, seek a solution by negotiation, enquiry,

mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.

7

Likewise, the second Principle of the 1970 Friendly Relations Declaration explicitly states:

International disputes shall be settled on the basis of the sovereign equality of States and in 8

accordance with the principle of free choice of means.

The principle of free choice of means is echoed by Article 280 of the LOSC, by providing that:

Nothing in this Part [XV] impairs the right of any States Parties to agree at any time to settle a dispute between them concerning the interpretation or application of this Convention by any peaceful means of their own choice.

2.2 The Interlinkage Between Voluntary and Compulsory Procedures for Dispute Settlement

In general, international dispute settlement in international law rests on the balance between the principle of free choice of means and the need to establish compulsory procedures for dispute settlement. With a view to reconciling these two elements, the LOSC sets out a two-tier system. According to this system, as the

7

Emphasis added.

8

first step, States Parties must

Emphasis added. UN General Assembly Resolution 2625 (XXV) of 24 October 1970.

497 Peaceful Settlement of International Disputes settle any dispute between them concerning the interpretation or application of the LOSC by peaceful means of their own choice.

9

Where the disputing Parties cannot settle a dispute

through non-compulsory procedures, that dispute must be settled in accordance with the compulsory procedures set out in section 2 of Part XV. In this sense, the compulsory procedures are essentially residual under the Convention. The key provision which links non-compulsory procedures to compulsory procedures for dispute settlement is Article 286:

Subject to section 3, any dispute concerning the interpretation or application of this Convention shall, where no settlement has been reached by recourse to section 1, be submitted at the request of any party to the dispute to the court or tribunal having jurisdiction under this section.

By combining the voluntary procedures with the compulsory procedures, the LOSC seeks to ensure an effective solution of international disputes. Section 1 of Part XV sets out three conditions to set in motion the compulsory procedures for dispute settlement: obligation to exchange views; non-existence of a special agreement precluding the compulsory procedure of the LOSC; and non-existence of agreed procedure that entails a binding decision.

(a) Obligation to Exchange Views (Article 283) As noted, parties to a dispute can freely agree on the most suitable method to settle the dispute on their own. Nothing compels them to have recourse to international courts and tribunals. Accordingly, Article 283 obliges disputing parties to proceed expeditiously to an exchange of views as a preliminary to any further steps. In this regard, the Annex VII Arbitral Tribunal, in the 2015 Chagos Marine Protected Area Arbitration, held that:

Article 283 thus requires the Parties to exchange views regarding the means for resolving their dispute; it does not require the Parties to in fact engage in negotiations or other forms of peaceful dispute resolution. As a matter of textual construction, the Tribunal considers that 10

Article 283 cannot be understood as an obligation to negotiate the substance of the dispute.

This view was subsequently echoed by the Annex VII Arbitral Tribunal in the 2015 Arctic

Sunrise,

9 10 11

11

South China Sea,

12

13

and Duzgit Integrity cases.

LOSC, Article 279.

Chagos Marine Protected Area (Mauritius v United Kingdom), Award of 18 March 2015, para. 378. The Arctic Sunrise Arbitration (The Netherlands v the Russian Federation) , Award on Merits, 14 August 2015, para. 151. In this case, the exchange of views was brief and one-sided in the sense that Russia made no counter-proposal and did not accept the proposal to arbitrate. Nonetheless, the Arbitral Tribunal considered

fi ed. Ibid., paras. 154–156.

that the requirement for an exchange of views set out in the LOSC was satis 12

–

PCA Case No 2013 19, the South China Sea Arbitration (Jurisdiction and Admissibility), 29 October 2015, para. 333.

13

The Duzgit Integrity Arbitration (Malta v São Tomé and Príncipe), Award of 5 September 2016, paras.

–

197 198.

498 Protection of Community Interests at Sea This obligation was at issue in the 2001 MOX Plant case (provisional measures) between the Republic of Ireland and the United Kingdom. In this case, the United Kingdom contended that the correspondence between Ireland and the United Kingdom did not amount to an exchange of views on the dispute said to arise under the LOSC. The United Kingdom also argued that its request for an exchange of views under Article 283 of the Convention was not accepted by Ireland.

14

However, ITLOS held that ‘ a State Party is not obliged to continue

with an exchange of views when it concludes that the possibilities of reaching agreement 15

have been exhausted ’ .

fi

The dictum was con rmed by

ITLOS in subsequent cases.

16

Furthermore, ITLOS, in the 2016 M/V Norstar case, ruled that the absence of a response from one State Party to an attempt by another State Party to exchange views on the means of dispute settlement does not prevent the Tribunal from Article 283 have been ful

filled.

finding that the requirements of

17

(b) Non-existence of a Special Agreement Precluding the Compulsory Procedure of the LOSC (Article 281) The second provision that needs to be examined is Article 281. Article 281(1) holds that if the States Parties to a dispute concerning the interpretation or application of the LOSC have agreed to seek settlement of the dispute by a peaceful means of their own choice, the procedures under Part XV of the Convention apply only where no settlement has been reached by recourse to such means and the agreement between the Parties does not exclude any further procedure. Article 281(2) further provides that if the Parties have agreed on a time limit, paragraph 1 of Article 281 applies only upon the expiration of that time limit. As the Conciliation Committee observed in the Timor-Leste/Australia case, Article 281 forms part of a compromise on dispute settlement that was carefully negotiated at the UNCLOS III, where some States favoured recourse to the compulsory settlement of disputes while others sought to exclude it entirely from the LOSC.

18

Article 281(1) contains two requirements:

(i) the disputing Parties must have exhausted dispute settlement procedures on the basis of mutual agreement, and (ii) that agreement does not exclude resort to the procedures provided in the LOSC.

14

The MOX Plant case (Ireland v United Kingdom), Provisional Measures, ITLOS Reports 2001, p. 106, paras. 56–57.

15 16

Ibid., p. 107, para. 60. See Land Reclamation in and around the Straits of Johor (Malaysia v Singapore), Provisional Measures, ITLOS Reports 2003, p. 10, para. 48; Ara Libertad (Argentina v Ghana), Provisional Measures, Order, ITLOS Reports 2012, p. 332, para. 71.

17 18

The M/V Norstar case (Panama v Italy), Preliminary Objections, Judgment of 4 November 2016, para. 215. A Conciliation Commission Constituted under Annex V to the 1982 United Nations Convention on the Law of the Sea between the Democratic Republic of Timor-Leste and the Commonwealth of Australia, Decision on Australia’s Objections to Competence, 19 September 2016, para. 49, available at: https://pca-cpa.org/en/cases/132/.

499 Peaceful Settlement of International Disputes In

addition,

as

stated

by

the

Timor-Leste/Australia

281 requires a legally binding agreement.

19

Conciliation

Commission,

Article

If one of the requirements has not been met,

the procedures under Part XV of the LOSC do not apply. The legal effect of Article 281 was tested in the 1999 between New Zealand, Australia and Japan. Concerning the

Southern Bluefin Tuna

dispute

first requirement of Article 281

(1), Japan asserted that Australia and New Zealand had not exhausted the procedures for amicable dispute settlement under Part XV, section 1 of the LOSC, in particular Article 281.

20

Nonetheless, ITLOS held that ‘ 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’ .

21

In the Award on Jurisdiction and Admissibility of 2000, the Annex

VII Arbitral Tribunal also took the same view on this particular matter.

22

However, the second requirement of Article 281(1) was more controversial. The key question was whether or not Article 16 of the 1993 Convention for the Conservation of Southern Blue

fin

Tuna (hereinafter the 1993 Convention) excludes the application of

compulsory procedures in the LOSC. Japan contended that recourse to the Arbitral Tribunal was excluded because the 1993 Convention provides for a dispute settlement procedure. However, Australia and New Zealand maintained that they were not precluded from having recourse to the Arbitral Tribunal

since the 1993 Convention does not provide for a

compulsory dispute settlement procedure entailing a binding decision as required under Article 282 of the LOSC.

23

In this regard, ITLOS ruled that the fact that the 1993 Convention applies between the Parties ‘does not preclude recourse to the procedures in Part XV, section 2, of the Conven24

tion on the Law of the Sea ’ . procedures had been ful

Therefore, it held that the requirements for invoking those

filled,

jurisdiction over the disputes.

and that the Arbitral Tribunal would prima facie have

25

However, the Annex VII Arbitral Tribunal took a different view on this issue. It is true that Article 16 of the 1993 Convention does not expressly exclude the applicability of any procedure, including the compulsory procedures of section 2 of Part XV of the LOSC. In the view of the Arbitral Tribunal, however, Article 16 makes clear that the dispute is not referable to adjudication by the ICJ or ITLOS or to arbitration ‘at the request of any party to the dispute’ . The Arbitral Tribunal also pointed out that the wording of Article 16(1) and (2) of the 1993 Convention has its essential origins in the terms of Article XI of the Antarctic Treaty. According to the Arbitral Tribunal, ‘ it is obvious that these provisions 26

are meant to exclude compulsory jurisdiction ’ .

19 20 21 22

Ibid., The

It thus concluded that Article 16 of the

para. 56.

Southern Bluefin Tuna

Ibid., p. 295, para. 60. The Southern Bluefin Tuna

cases, Provisional Measures, ITLOS Reports 1999, p. 294, para. 56.

arbitration, Award on Jurisdiction and Admissibility, 23

Southern Bluefin Tuna Arbitration Award). Southern Bluefin Tuna cases, Requests for provisional measures,

RIAA,

pp. 42–43,

para. 55 (hereinafter 23

The

53–54. 24 26

Ibid.,

para. 55.

25

Ibid.,

Southern Bluefin Tuna

p. 295, paras. 61–62.

Arbitration Award, 23

RIAA,

p. 44, para. 58.

ITLOS Reports 1999, p. 294, paras.

500 Protection of Community Interests at Sea 1993 Convention excludes any further procedure within the contemplation of Article 281(1) of the LOSC; the dispute.

27

and that the Annex VII Tribunal lacked jurisdiction to entertain the merits of

28

According to this interpretation, a regional agreement which simply contains no provision for compulsory procedures for dispute settlement could exclude resort to the compulsory procedures of Part XV of the LOSC. Thus there is the risk that the effectiveness of the compulsory procedures may be seriously undermined by the liberal application of Article 281.

29

The interpretation of Article 281(1) was at issue again in the South China Sea Arbitration of 2015. In this regard, the Annex VII Arbitral Tribunal ruled that ‘ the better view is that Article 281 requires some clear statement of exclusion of further procedures ’.

30

According

to the Tribunal, this interpretation is supported by the text and context of Article 281 and by the structure and overall purpose of the Convention.

31

Furthermore, requiring express

exclusion for Article 281 is consistent with the overall object and purpose of the Convention as a comprehensive agreement. 1999 Southern Blue Southern Blue

32

The Tribunal thus supported the views of ITLOS in the

fin Tuna cases as well as the separate opinion of Judge Keith in the 2000

fin Tuna Arbitration Award.

(c) Non-existence of an Agreed Procedure that Entails a Binding Decision (Article 282) Third, Article 282 of the LOSC may also restrict the compulsory procedures of the Convention. This provision holds that if the disputing Parties have agreed, through a general, regional or bilateral agreement or otherwise, that such dispute shall, at the request of any party to the dispute, be submitted to a procedure that entails a binding decision, that procedure shall apply in lieu of the procedures provided for in Part XV, unless the parties to the dispute otherwise agree. The legal effect of Article 282 was discussed in the 2001 MOX Plant case between the Republic of Ireland and the United Kingdom. In this case, the United Kingdom asserted that the main elements of the dispute submitted to the Annex VII Arbitral Tribunal were governed by the compulsory procedures for dispute settlement in the OSPAR Convention or the EC Treaty or the Euratom Treaty. It thus argued that the Arbitral Tribunal would not have jurisdiction.

33

However, ITLOS took the view that the dispute settlement procedures under the OSPAR Convention, the EC Treaty and the Euratom Treaty deal with disputes with regard to the interpretation and application of those agreements, and do not deal with disputes arising under the LOSC. In the view of ITLOS, since the dispute before the Annex VII Arbitral

27 29

Ibid., para. 59.

28

Ibid., p. 46, para. 65.

Judge Keith took the view that clear wording is needed in order to exclude the compulsory procedures provided for in the LOSC. Separate Opinion of Justice Sir Kenneth Keith, ibid., pp. 1398–1399, paras. 18–22.

fin

See also Separate Opinion of Judge Wolfrum in the MOX Plant case, p. 132; A. Boyle, ‘The Southern Blue Tuna Arbitration’ (2001) 50 ICLQ, p. 449. 30 32

The South China Sea Arbitration Award (Jurisdiction and Admissibility), para. 223. Ibid., para. 225.

33

The MOX Plant case, ITLOS Reports 2001, p. 105, paras. 43 –44.

31

Ibid.

501

Peaceful Settlement of International Disputes Tribunal concerned the interpretation or application of the LOSC, only the dispute settlement procedure under that Convention was relevant to the dispute. Hence it concluded that for the purpose of determining prima facie jurisdiction of the Annex VII Arbitral Tribunal, Article 282 was not applicable to the dispute submitted to the Tribunal.

34

Later, the legal effect of Article 282 was tested again by the Annex VII Arbitral Tribunal in the MOX Plant case of 2003.

35

The key question involved the exclusive jurisdiction of the

European Court of Justice under European Community law. According to the Tribunal, if the interpretation of the LOSC fell within the exclusive competence of the European Court of Justice, it would preclude the jurisdiction of the Tribunal entirely by virtue of Article 282 of the Convention. Thus the determination of the Tribunal’ s jurisdiction relied essentially on the resolution of this question. In the view of the Arbitral Tribunal, the question is to be decided within the institutions of the European Community, particularly by the European Court of Justice. Further to this, the European Commission has indicated that it is examining the question of whether to institute proceedings under Article 226 of the European Community Treaty. Hence, ‘ bearing in mind considerations of mutual respect and comity’ , the Arbitral Tribunal decided that further proceedings on both jurisdiction and the merits in this arbitration would be suspended.

36

Thus the Arbitral Award demonstrated that

Article 282 may take effect to prevent recourse to compulsory procedures for dispute settlement. A related issue concerns the interrelationship between the optional clause of the ICJ and Article 282. Article 282 provides that an agreement to submit a dispute to a speci

fied

procedure that applies in lieu of the compulsory procedures in section 2 of the Part XV may not only be contained in a ‘general, regional or bilateral agreement ’ but may also be reached ‘otherwise ’ . In this regard, the ICJ, in the 2016 Somalia/Kenya case (preliminary objections), considered that the phrase ‘or otherwise’ in Article 282 encompasses agreement to the jurisdiction of the Court resulting from optional clause declarations.

37

According to 38

the Court, this interpretation can also be supported by travaux préparatoires of the LOSC.

Therefore, the Court concluded that under Article 282, the optional clause declarations of the Parties constitute an agreement, reached ‘otherwise ’, to settle in the Court disputes concerning interpretation or application of the LOSC.

39

2.3 Voluntary Conciliation

Conciliation is a diplomatic means of dispute settlement carried out by a commission composed of conciliators who are independent and impartial. The LOSC contains two types,

34 36

Ibid., p. 106, paras. 49–53.

35

The MOX Plant case, Order No. 3, 24 June 2003.

Ibid., pp. 7–9, paras. 22 –29. On 30 May 2006, the European Court of Justice (Grand Chamber) held that under Article 282 of the LOSC, ‘the system for the resolution of disputes set out in the EC Treaty must in principle take precedence over that contained in Part XV of the Convention’. Case C-459/03, Commission v Ireland, [2006] ECR 1 –4635, 4708, para. 125.

37

Maritime Delimitation in the Indian Ocean (Somalia v Kenya), Preliminary Objections, Judgment of 2 February 2017, ICJ Reports 2017, p. 49, para. 128.

38

Ibid., pp. 48–49, paras. 127 and 129.

39

Ibid., p. 50, para. 130.

502 Protection of Community Interests at Sea namely voluntary conciliation and mandatory conciliation.

40

This subsection reviews the

voluntary conciliation set out in section 1 of Part XV. In this regard, Article 284(1) provides:

A State Party which is a party to a dispute concerning the interpretation or application of this Convention may invite the other party or parties to submit the dispute to conciliation in accordance with the procedure under Annex V, section 1, or another conciliation procedure.

As this is a

voluntary conciliation, the consent of the disputing parties is a prerequisite to

the submission of the dispute to conciliation. Indeed, Article 284(2) and (3) is clear:

2.

If the invitation is accepted and if the parties agree upon the conciliation procedure to be applied, any party may submit the dispute to that procedure.

3.

If the invitation is not accepted or the parties do not agree upon the procedure, the conciliation proceedings shall be deemed to be terminated.

When a dispute has been submitted to conciliation, the proceedings may be terminated only in accordance with the agreed conciliation procedure, unless the parties otherwise agree pursuant to Article 284(4). The procedure for voluntary conciliation is embodied in section 1 of Annex V of the LOSC in some detail. In accordance with Article 3 of Annex V, the conciliation commission shall consist of

fi ve

members. Two conciliators are appointed by each party and a

fifth

conciliator, who shall be chairperson, is appointed by the parties to the dispute. In cases of disagreement between the parties, the UN Secretary-General shall make the necessary appointment. After examining claims and objections by the parties, the Commission makes proposals to the parties with a view to reaching an amicable settlement pursuant to Article 6 of Annex V. The Commission is required to report within twelve months of its constitution. Its report shall record any agreements reached and, failing agreement, its conclusions on all questions of fact or law relevant to the matter in dispute and recommendations appropriate for an amicable settlement. The report is to be deposited with the UN Secretary-General and shall immediately be transmitted by him to the disputing parties. The report of the Commission shall not be binding upon the parties. borne by the parties to the dispute.

41

The fees and expenses of the Commission are to be

42

Under Article 8 of Annex V, the conciliation proceedings are terminated when a settlement has been reached, when the parties have accepted or one party has rejected the recommendations of the report by written noti

fication

addressed to the UN Secretary-

General, or when a period of three months has expired from the date of transmission of

40

Generally on this issue, see Sienho Yee, ‘Conciliation and the 1982 UN Convention on the Law of the Sea’ (2013) 44

41

ODIL, pp. 315

– 334.

LOSC, Annex V, Article 7.

42

LOSC, Annex V, Article 9.

503

Peaceful Settlement of International Disputes the report to the parties. Accordingly, a dispute remains unsettled if one of the disputing parties has rejected the recommendations of the conciliation report. In this case, the dispute is to be transferred to the compulsory procedures for the settlement of the dispute.

3 COMPULSORY PROCEDURES FOR DISPUTE SETTLEMENT

3.1 Multiplicity of Forums

Where no settlement has been reached by recourse to section 1 of Part XV, subject to section 3, any dispute concerning the interpretation or application of the LOSC shall be submitted at the request of any party to the dispute to the court or tribunal having jurisdiction under section 2.

43

A question then arises as to which court or tribunal has

jurisdiction over the dispute. The negotiations at UNCLOS III

revealed disagreements with regard to forums for

compulsory procedures. In a broad context, while a good number of developing States supported the creation of a new Tribunal for the Law of the Sea, many European States – apart from France – and some Latin American States were supportive of recourse to the ICJ. For the formerly Socialist States of Eastern Europe and France, ‘ Special Arbitration’ was the only third-party procedure that they found acceptable. In order to achieve a compromise, Article 287 of the LOSC holds the formula for

flexibly choosing one or more of the four

different forums for compulsory procedures. This is called the ‘Montreux formula’ because it was suggested by the Working Group’ s weekend meeting in Montreux at the 1975 Geneva session.

44

The four procedures are:

• ITLOS, • ICJ, • an arbitral tribunal constituted in accordance with Annex VII, and • a special arbitral tribunal constituted in accordance with Annex VIII.

An arbitral tribunal constituted under Annex VII to the LOSC consists of

five members.

45

Arbitrators must be ‘ persons experienced in maritime affairs’, but they need not be lawyers. A special arbitral tribunal constituted under Annex VIII consists of

five members, and they

fields of (i) fisheries, (ii) protection and preservation of the marine environment, (iii) marine scientific research, and (iv) navigation, including pollution from are experts in the particular

vessels and by dumping. Accordingly, special arbitrators do not need to be lawyers. The jurisdiction of special arbitral tribunals is restricted to disputes in the four particular

fields.

46

Notably, a special arbitral tribunal under Annex VIII is empowered to carry out an inquiry in accordance with the agreement between the parties to a dispute. The

43 44

findings of fact of such a

LOSC, Article 286. A. O. Adede, The System of Settlement of Disputes under the United Nations Convention on the Law of the

Sea: A Drafting History and a Commentary (Dordrecht, Nijhoff, 1987), p. 243; by the same writer, ‘The Basic Structure of the Dispute Settlement Part of the Law of the Sea Convention’ (1982) 11 ODIL , pp. 130–131. 45

LOSC, Annex VII, Articles 1 and 3.

46

LOSC, Annex VIII, Articles 1 and 2.

504 Protection of Community Interests at Sea tribunal are considered to be conclusive as between the parties.

47

The fact-

finding of the

special arbitral tribunal seems to provide an interesting example of ‘ binding inquiry ’. Furthermore, if all the disputing parties so request, the special arbitral tribunal may formulate non-binding recommendations for a review by the parties of the questions giving rise to the dispute.

48

In this case, the function of such a tribunal is equivalent to conciliation.

Under Article 287(1), when signing, ratifying or acceding to the LOSC or at any time thereafter, a State is to be free to choose, by means of a written declaration, one or more of these four means for the settlement of disputes concerning the interpretation or application of the Convention.

49

If the parties to a dispute have accepted the same procedure for dispute

settlement, it may be submitted only to that procedure, unless the parties otherwise agree under Article 287(4). If no declaration is made, a State Party shall be deemed to have accepted arbitration in accordance with Annex VII.

50

If the disputing parties have not

accepted the same procedure for dispute settlement, it may be submitted only to arbitration in accordance with Annex VII, unless the parties otherwise agree pursuant to Article 287(5). In this sense, the Annex VII arbitration has residual jurisdiction. Given that many States have made no declarations on the choice of a means of dispute settlement, the role of the Annex VII Arbitral Tribunal is signi

ficant. In fact, disputes are increasingly referred to the

Annex VII Arbitral Tribunal (see Table 13.1). Four further points about multiple forums should be noted. First, where a State has chosen more than one forum, collaboration between the disputing States will be needed in order to identify a relevant forum even in the compulsory procedures. For instance, Mexico has chosen ITLOS, the ICJ and a special arbitral tribunal without any order. Portugal has chosen all four forums without any order. If a dispute were raised between the two States, it would be necessary to exchange views to identify a relevant forum in accordance with Article 283(2) of the LOSC. Second, in the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal pursuant to Article 288(4). In connection with this, Article 294(1) holds that a court or tribunal provided for in Article 287 to which an application is made in respect of a dispute referred to in Article 297 shall determine at the request of a party, or may determine

proprio motu,

whether the claim

constitutes an abuse of legal process or whether prima facie it is well founded. If the court or tribunal determines that the claim constitutes an abuse of legal process or is prima facie unfounded, it shall take no further action in the case. This provision seeks to address the concerns expressed by some developing coastal States that they might be exposed to frequent legal actions by shipping States and would have to be involved in costly procedures in international courts and tribunals.

51

Preliminary proceedings must be distinguished

from preliminary objections. In fact, Article 294(3) makes clear that nothing in this Article affects the right of any party to a dispute to make preliminary objections in accordance with the applicable rules of procedure.

47 49

LOSC, Annex VIII, Article 5(1) and (2).

48

LOSC, Annex VIII, Article 5(3).

An updated list of choice of procedure under Article 287 is available at the website of UNDOALOS: www.un.org/Depts/los/settlement_of_disputes/choice_procedure.htm.

50 51

LOSC, Article 287(3). G. Jaenicke, ‘Dispute Settlement under the Convention on the Law of the Sea’ (1983) 43

ZaöRV, p. 817.

505

Peaceful Settlement of International Disputes

T A B L E 1 3 . 1 A R B I T R A T I O N U N D E R A N N EX VI I O F T H E LO S C 1998

The

M/V ‘Saiga’

Arbitration (discontinued in 1998)

2000

The

Southern Blue

fi

n Tuna

Arbitration (Australia

and New Zealand

v

Japan )

(jurisdiction and

admissibility) 2003

The

MOX Plant

Arbitration (Ireland v

United Kingdom )

(suspension of proceedings on jurisdiction and

merits and request for further provisional measures) (case withdrawn 2008) 2005

The

Land Reclamation by Singapore in and around the Straits of Johor

Singapore)

Arbitration (Malaysia v

(case settled in 2005)

2006

The

Barbados/Trinidad and Tobago

Arbitration (Barbados v

2007

The

Guyana/Suriname

2009

The

Bangladesh/Myanmar

2011

The

M/V Virginia G

2013

The

ARA Libertad

2014

The

Bay of Bengal Maritime Boundary

2014

The

Atlanto– Scandian Herring

Arbitration (Guyana v

Trinidad and Tobago )

Suriname )

Arbitration (discontinued in 2009, transferred to ITLOS in 2009)

Arbitration (Panama v

Arbitration (Argentina v

Guinea-Bissau,

Ghana,

transferred to ITLOS in 2011)

terminated in 2013)

Arbitration ( Bangladesh v

case (Denmark

India)

in respect of the Faroe Islands

v

The European Union ,

terminated in 2014) 2014

Delimitation of Maritime Boundary in the Atlantic Ocean

( Ghana v

Côte d’Ivoire ,

discontinued in

2014, transferred to ITLOS Special Chamber in 2014) 2014

The

Arctic Sunrise

Arbitration (Netherlands v

2015

The

Chagos Marine Protected Area

2016

The

South China Sea

2016

The

Duzgit Integrity

Pending

The

Enrica Lexie Incident

Russia )

Arbitration (Mauritius v

Arbitration (Merits,

Arbitration (Malta v

Philippines

v

United Kingdom )

People’s Republic of China)

São Tomé and Príncipe)

Arbitration (Italy v

India)

Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait

v

(Ukraine

the Russian Federation)

Third, even if no declaration is made under Article 287, ITLOS has compulsory jurisdiction over a request for the prompt release of vessels and crews provisional measures,

53

52

and a request for

unless the parties otherwise agree.

Fourth, as ITLOS observed in the M/V ‘Louisa’ case, ‘in cases where States Parties have made declarations of differing scope under article 287 of the Convention, its jurisdiction exists only to the extent to which the substance of the declarations of the two parties to a dispute coincides ’.

54

Related to this, ITLOS, in the M/V Norstar case, took the view that the

LOSC does not preclude a declaration limited to a particular dispute.

52 54

LOSC, Article 292.

53

55

LOSC, Article 290(5).

The M/V ‘ Louisa’ case (Saint Vincent and the Grenadines v Kingdom of Spain), Judgment, ITLOS Reports 2013, p. 30, para. 81.

55

The M/V Norstar case, Preliminary Objections, ITLOS Reports 2016, p. 59, para. 58.

506

Protection of Community Interests at Sea

3.2 Limitations to the Compulsory Procedures

It is signi

ficant

that the LOSC creates compulsory procedures for dispute settlement.

However, such procedures are subject to two important limitations. First, under Article 297(2)(a), the coastal State shall not be obliged to accept the submission to such settlement of any dispute arising out of (i) the exercise by the coastal State of a right or discretion in accordance with Article 246 relating to marine scienti

fic research in

the EEZ and on the continental shelf, or (ii) a decision by the coastal State to order suspension or cessation of a research project in accordance with Article 253. Second, under Article 297(3)(a), the coastal State shall not be obliged to accept the submission to such settlement of any dispute relating to its sovereign rights with respect to the

resources

living

in the EEZ or their exercise, including its discretionary powers for determining the

allowable catch, its harvesting capacity, the allocation of surpluses to other States, and the terms and conditions established in its conservation and management laws and regulations. In summary, there is no compulsory dispute settlement for EEZ disputes with regard to the

fishing and marine scientific research. This limitation re flects the reality that fishing and marine scientific research in the EEZ raise exercise of discretionary powers by the coastal State over

particular sensitivities for the coastal State and the State has wide discretion on these subjects. A dispute concerning the exercise of the coastal State ’s discretionary powers over marine scienti

fic research in the EEZ is to be submitted, at the request of either party, to compulsory

conciliation under Annex V, section 2. However, the conciliation commission shall not call in

fic areas as referred

question the exercise by the coastal State of its discretion to designate speci

to in Article 246(6), or of its discretion to withhold consent in accordance with Article 246(5).

56

Where no settlement has been reached by recourse to section 1 of Part XV, namely, noncompulsory procedures, a dispute relating to

fisheries

excluded from the compulsory

settlement procedures shall be submitted to conciliation under Annex V, section 2, at the request of any party to the dispute, when it is alleged that:

(i)

a coastal State has manifestly failed to comply with its obligations to ensure through proper conservation and management measures that the maintenance of the living resources in the exclusive economic zone is not seriously endangered;

(ii)

a coastal State has arbitrarily refused to determine, at the request of another State, the allowable catch and its capacity to harvest living resources with respect to stocks which that other State is interested in

(iii)

fishing; or

a coastal State has arbitrarily refused to allocate to any State, under Articles 62, 69 and 70 and under the terms and conditions established by the coastal State consistent with this Convention, the whole or part of the surplus it has declared to exist.

It would follow that

57

fishing disputes which are exempted from the compulsory procedure by

Article 297(3)(a) are not automatically submitted to the compulsory conciliation by Article

56

LOSC, Article 297(2)(b).

57

LOSC, Article 297(3)(b).

507

Peaceful Settlement of International Disputes 297(3)(b). Furthermore, the discretionary powers of the coastal State over

fishing in the EEZ

are safeguarded by Article 297(3)(c), which provides: ‘ In no case shall the conciliation commission substitute its discretion for that of the coastal State’ . It may also be noted that the report of the conciliation commission is not binding upon the disputing parties.

58

The limitations to the compulsory procedures for dispute settlement raise at least two issues. The

first issue pertains to the categorisation of a dispute. Suppose that a dispute was

raised with regard to a claim over an EEZ around a disputed island or rock and the exercise of a coastal State ’s jurisdiction over living resources within this EEZ. If this dispute involves the exercise of sovereign rights with respect to living resources in the EEZ, the dispute will be exempted from the compulsory procedures by virtue of Article 297. If this is a dispute concerning entitlement to an EEZ under Part V and Articles 121(3), it is not excluded from compulsory procedures in the Convention. Thus the scope of compulsory procedures may change according to the formulation of a dispute.

59

In this regard, it should be noted that

whether a particular dispute falls within the scope of Article 297 is not a matter to be unilaterally decided by the disputing State, but is an issue for the court or tribunal whose jurisdiction is in question.

60

The second issue relates to the distinction between disputes susceptible to the compulsory procedures and disputes which are exempted from these procedures. For instance, disputes over high seas

fisheries

fall within the scope of the compulsory procedures for dispute

settlement in the LOSC. As demonstrated in the Spain and Canada, however, a

fisheries

Fisheries Jurisdiction

dispute between

dispute may be raised with regard to

straddling the EEZ and the high seas. While the question of high seas

fish

stocks

fisheries is subject to fish

compulsory procedures for dispute settlement, the question of the management of

stocks in the EEZ does not seem to be susceptible to the compulsory procedures. However, it makes little sense to separate the question concerning high seas ment of

fish stocks in the adjacent EEZ.

fisheries from the manage-

61

3.3 Optional Exceptions to the Compulsory Procedures

Compulsory procedures for dispute settlement under the LOSC may also be quali

fied

by

optional exceptions set out in Article 298. Article 298 embodies a compromise between those States which favoured compulsory and binding dispute settlement procedures and other States which sought to exclude even non-binding dispute settlement procedures.

62

Article 298(1) holds that when signing, ratifying or acceding to this Convention or at any time thereafter, a State may declare in writing that it does not accept any one or more of the compulsory procedures with respect to one or more of the following categories of disputes:

58 59

LOSC, Annex V, Articles 7(2) and 14. A. Boyle, ‘Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and Jurisdiction’ (1997) 46

60 62

ICLQ,

pp. 44–45.

LOSC, Articles 288(4) and 294. The

Timor-Leste/Australia

61

Boyle, ‘Dispute Settlement ’, p. 43.

conciliation, para. 66.

508 Protection of Community Interests at Sea •

disputes concerning the interpretation or application of Articles 15, 74 and 83 relating to maritime delimitations or those involving historic bays or title,

•

disputes concerning military activities and disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction excluded from the jurisdiction of a court or tribunal under Article 297(2) or (3),

•

disputes in respect of which the UN Security Council is exercising the functions assigned to it by the UN Charter, unless the Security Council decides to remove the matter from its agenda or calls upon the parties to settle it by the means provided for in the LOSC.

Under Article 298(4), a State Party which has made a declaration under paragraph 1 shall not be entitled to submit any dispute falling within the excepted category of disputes to any procedure in this Convention as against another State Party, without the consent of that Party. Declarations and notices of withdrawal of declarations under Article 298 shall be deposited with the Secretary-General of the UN in accordance with Article 298(6). A new declaration, or the withdrawal of a declaration, does not in any way affect proceedings pending before a court or tribunal in accordance with Article 298, unless the parties otherwise agree, by virtue of paragraph 5. A particular issue in this regard is whether disputes concerning historic rights are precluded by Article 298(1)(a)(i). This issue was discussed in the 2016 Arbitration (Merits). As explained earlier,

63

South China Sea

historic rights are distinct from historic title in

that historic rights include limited rights, such as

fishing rights or rights of access, that fall

well short of a claim of sovereignty, while historic title refers to sovereignty. Thus the Annex VII Arbitral Tribunal took the view that Article 298(1)(a)(i) does not exclude

fied

jurisdiction over a broad and unspeci

category of possible claims to historic rights

64

falling short of sovereignty.

Even though maritime delimitation disputes or those involving historic bays or title may be exempted from the compulsory procedures entailing binding decisions, they are subject

conciliation under section 2, Annex V to the LOSC, when such a dispute

to the compulsory

arises subsequent to the entry into force of the LOSC and where no agreement within a reasonable period of time is reached in negotiations between the Parties. But any dispute that necessarily involves the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over continental or insular land territory shall be excluded from 65

such submission.

The parties shall negotiate an agreement on the basis of the report of the

conciliation commission. If these negotiations do not result in an agreement, the parties shall, by mutual consent, submit the question to one of the compulsory procedures provided for in section 2 of Part XV, unless the parties otherwise agree. does not apply to any sea boundary dispute

66

However, this subparagraph

finally settled by an arrangement between the

parties, or to any such dispute which is to be settled in accordance with a bilateral or multilateral agreement binding upon those parties.

63 64 65

67

See Chapter 2, section 2.4 (a) of this book.

–

PCA Case No. 2013 19, the LOSC, Article 298(1)(a)(i).

South China Sea Arbitration (Merits), Award of 12 July 2016, para. 226. 66

LOSC, Article 298(1)(a)(ii).

67

LOSC, Article 298(1)(a)(iii).

509 Peaceful Settlement of International Disputes The compulsory conciliation was triggered for the

first time by Timor-Leste pursuant to

Article 298 and Annex V of the Convention. This case concerns the dispute between TimorLeste and Australia regarding the delimitation of a maritime boundary in the Timor Sea. Although Australia raised objections to the competence of the Compulsory Conciliation Commission, the Commission decided that it had competence to deal with the case on 19 September 2016.

68

On 9 May 2018, the Compulsory Conciliation Commission issued its

Report and Recommendations. 69

Owing to the conciliation, Timor-Leste and Australia

reached agreement in Copenhagen on 30 August 2017. Subsequently the parties ’ agreement was formalised in the conclusion of the Maritime Boundary Treaty signed on 6 March 2018.

70

Concerning exceptions to compulsory procedures, three further points should be noted. First, as Article 299 provides, the disputing parties may submit a dispute in an excluded category to the compulsory procedures by agreement. It would follow that the effect of Articles 297 and 298 is to prevent the unilateral submission of a dispute in an excluded category to the compulsory procedures. Second, a competent court decides whether a dispute falls within any categories of disputes exempted from the compulsory procedures under Article 298(1). In the

Sunrise

Arctic

Arbitration, for instance, an issue was raised of whether the dispute submitted to

the Annex VII Arbitral Tribunal would fall within the category of disputes exempted from the compulsory procedures under Article 298(1)(b). In this regard, the Annex VII Arbitral Tribunal found ‘nothing in the documents in the case to suggest that the present dispute has any connection with the exercise by Russia of any sovereign rights or jurisdiction that falls 71

within any of these categories ’ under Article 298(1)(b).

It thus upheld its jurisdiction to

deal with the case. Third, where a dispute is submitted to the ICJ, the scope of the Court ’s jurisdiction may change according to the mode of referral of the dispute. For example, where a dispute is submitted in accordance with the compulsory procedures in the LOSC, the Court ’s jurisdiction is subject to the limitations and exceptions set out in Articles 297 and 298. However, if a party to a dispute submits the dispute to the ICJ on the basis of the optional clause, the scope of the Court ’ s jurisdiction is subject to reservations to the clause. Provided that the

fisheries fishing in the

disputing parties accept the optional clause of the ICJ and no reservation involving disputes is made to that clause, for example, it seems that a dispute relating to

68

Conciliation between the Democratic Republic of Timor-Leste and the Commonwealth of Australia. Decision on Australia’s Objections to Competence, 19 September 2016, para. 111, available at: https://pca-cpa.org/en/cases/132/.

69

70

Report and Recommendations on the Compulsory Conciliation Commission between Timor-Leste and Australia on the Timor Sea, 9 May 2018, available at: https://pca-cpa.org/en/cases/132/. Treaty between Australia and the Democratic Republic of Timor-Leste Establishing Their Maritime Boundaries in the Timor Sea. The text was reproduced as Annex 28 to the Conciliation Report, available at: https://pca-cpa.org/en/cases/132/.

71

The

Arctic Sunrise Arbitration, Award on Jurisdiction, 26 November 2014, para. 76, available at: https://pca-

cpa.org/en/cases/21/.

510

Protection of Community Interests at Sea EEZ is subject to the ICJ ’s jurisdiction. In this case, the procedure of the ICJ is to apply in lieu of the procedures provided for in Part XV of the LOSC by virtue of Article 282.

72

4 THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA (1): ORGANISATION

4.1 Members of ITLOS ITLOS is a permanent judicial body established in accordance with Annex VI to the LOSC (hereinafter the ITLOS Statute).

73

74

While the ICJ is the principal judicial organ of the UN, 75

ITLOS is not an organ of the UN.

Indeed, the expenses of ITLOS are to be borne by the

States Parties and by the Authority rather than the UN.

76

The seat of ITLOS is in the Free

and Hanseatic City of Hamburg in the Federal Republic of Germany. of

ficial languages of ITLOS

78

are English and French.

The of

ficial

77

Like the ICJ, the

inauguration of ITLOS

took place on 18 October 1996. ITLOS is a body composed of twenty-one independent members, elected from among persons enjoying the highest reputation for fairness and integrity and of recognised competence in the

field

of the law of the sea. The representation of the principal legal

systems of the world and equitable geographical distribution shall be assured. members of ITLOS may be nationals of the same State.

80

79

No two

There shall be no fewer than three

members from each geographical group as established by the UN General Assembly. The geographical distribution was decided by the

fifth Meeting of States Parties in 1996 and was

rearranged by the nineteenth Meeting in 2009 (SPLOS/201 of 26 June 2009). In accordance with the rearrangement, ITLOS shall have the following composition:

(i) (ii)

five members shall be from the Group of African States; five members shall be from the Group of Asian States;

(iii) three members shall be from the Group of Eastern European States; (iv) four members shall be from the Group of Latin American and Caribbean States; (v) three members shall be from the Group of Western European and other States; (vi) the remaining member shall be elected from among the Group of African States, the Group of Asian States and the Group of Western European and other States.

81

While the numbers of judges from African, Asian and Western European and other States Groups may vary, the current composition of ITLOS is summarised in Table 13.2. The procedure for electing the members of ITLOS is provided in Article 4 of the ITLOS Statute. Each State Party may nominate no more than two persons having the quali

fica-

tions prescribed in Article 2 of this Statute. The members of ITLOS are to be elected from the

72 74 75

Boyle, ‘Problems of Compulsory Jurisdiction’, p. 7.

73

LOSC, Article 287(1)(a).

Article 92 of the UN Charter; ICJ Statute, Article 1. The general relations between ITLOS and the UN are regulated by the 1997 Agreement on Co-operation and Relationship between the United Nations and the International Tribunal for the Law of the Sea. Provisionally

fi nitive entered into force March 1998. Text in: 2000 UNTS , p. 467.

entered into force 18 December 1997; de 76 79

ITLOS Statute, Article 19. ITLOS Statute, Article 2(2).

77

ITLOS Statute, Article 1(2).

80

ITLOS Statute, Article 3(1).

78

Article 43 of the Rules of the Tribunal.

81

SPLOS/201, 26 June 2009, para. 1.

511

Peaceful Settlement of International Disputes

T A B L E 1 3 . 2 C U R R E N T C O M P O S IT I O N O F T H E M E M B E R S O F I T L O S A N D THE ICJ

ITLOS

ICJ

Africa

5

3

Asia

5

4

Latin America and Caribbean States

4

2

Western European and other States

4

4

Eastern Europe

3

2

21

15

Total

list of persons thus nominated. Elections are to be held at a meeting of the States Parties to the LOSC, and the members of ITLOS are to be elected by secret ballot. The persons elected to ITLOS shall be those nominees who obtain the largest number of votes and a two-thirds majority of the States Parties present and voting, provided that such majority includes a majority of the States Parties.

82

83

The members of ITLOS are elected for nine years and may be re-elected.

and the Vice-President are elected for three years and they may be re-elected.

The President 84

Article 7(1)

of the ITLOS Statute sets out the status of judges of ITLOS:

No member of the Tribunal may exercise any political or administrative function, or associate actively with or be

fi

nancially interested in any of the operations of any enterprise concerned

with the exploration for or exploitation of the resources of the sea or the seabed or other commercial use of the sea or the seabed.

This paragraph appears to signify that the members of ITLOS may engage in any other function which is not prohibited by provision. This point represents a sharp contrast to Article 16(1) of the ICJ Statute, which forbids members of the Court to ‘ exercise any political or administrative function, or engage in any other occupation of a professional nature’ . The difference in status between the members of ITLOS and those of the ICJ is also re

flected in their remuneration. While each member of the ICJ receives

‘an annual salary’

under Article 32(1) of the Statute of the Court, the members of ITLOS receive ‘ an annual allowance ’ and, for each day on which they exercises their functions, ‘ a special allowance’ in accordance with Article 18(1) of the ITLOS Statute. This system seems to suggest that members of ITLOS are not expected to be engaged on a full-time basis on the work of ITLOS, and judges are assumed to have some other sources of income.

82

The

85

first election took place on 1 August 1996. For an examination in more detail of elections to ITLOS, see

G. Eiriksson, The International Tribunal for the Law of the Sea (The Hague, Brill/Nijhoff, 2000), pp. 32 et seq. 83 85

ITLOS Statute, Article 5(1).

84

ITLOS Statute, Article 12(1).

Eiriksson, The International Tribunal, p. 103.

512

Protection of Community Interests at Sea

When engaged on the business of ITLOS, its members are to enjoy diplomatic privileges and immunities by virtue of Article 10 of the ITLOS Statute. These privileges and immunities are defined in the 1997 Agreement on the Privileges and Immunities of ITLOS.86 Members of ITLOS of the nationality of any of the parties to a dispute shall retain their right to participate as members of the Tribunal. As with the ICJ, a judge ad hoc may be appointed by a party or parties to a dispute currently unrepresented in accordance with Article 17(2) and (3) of the ITLOS Statute. The provisions concerning national judges and judges ad hoc apply to the Seabed Disputes Chamber and Special Chambers by virtue of Article 17(4) of the Statute. Judges ad hoc shall fulfil the conditions required by Articles 2 (composition), 8 (conditions to participate in a particular case) and 11 (solemn declaration) of the ITLOS Statute. 87 4.2 The Seabed Disputes Chamber

ITLOS has multiple chambers (see Figure 13.1). A Seabed Disputes Chamber was established on 20 February 1997 in accordance with section 5, Part XI of the LOSC and Article 14 of the ITLOS Statute. The Seabed Disputes Chamber is composed of eleven members, selected by a majority of the elected members of ITLOS from among them for a three-year term and may be selected for a second term.88 As stated in Article 35(2) of the Statute, the representation of the principal legal systems of the world and equitable geographical distribution must be assured in electing the Chamber.89 The Chamber is empowered to form an ad hoc chamber which is composed of three members in order to deal with particular disputes submitted to it under Article 188(b) of the LOSC. The establishment of this chamber of a chamber can be considered as a result of compromise between States which supported the Seabed Disputes Chamber as appropriate for dealing with disputes relating to Part XI of the LOSC and those which would have preferred arbitration. The composition of the ad hoc chamber is to be determined by the Seabed Disputes Chamber with the approval of the parties .90 If the parties do not agree on the composition of an ad hoc chamber, each party to the dispute is to appoint one member, and the third member is to be appointed by them in agreement. If they disagree, or if any party fails to make an appointment, the President of the Seabed Disputes Chamber shall promptly make the appointment or appointments from among its members, after consultation with the parties .91 By emphasising the consent of ‘

’

‘

‘

86 87 89

90

’

’

Entered into force 30 December 2001. The text of the 1997 Agreement is available at: www.itlos.org/index.php?id=12&L=0. ITLOS Statute, Article 17(6). 88 ITLOS Statute, Article 35(1) and (3). This requirement is confirmed by ITLOS. See for instance, (2012) 16 International Tribunal for the Law of the Sea Yearbook, p. 9. The composition of the Seabed Disputes Chamber is published in the ITLOS Yearbooks and the Tribunal s Annual Reports. ITLOS Statute, Article 36(1). 91 ITLOS Statute, Article 36(2). ’

513

Peaceful Settlement of International Disputes Chambers of ITLOS

Special Chambers

Seabed Disputes Chamber (11 members)

(i) Chamber dealing with particular category of disputes (ii) Chamber dealing with a particular dispute (iii) Chamber of Summary Procedure

Ad hoc Chamber (3 members)

Figure 13.1 Chambers of ITLOS Source: Y. Tanaka,

The Peaceful Settlement of International Disputes (Cambridge University Press, 2018), p. 245

the parties in the composition of the ad hoc chamber, some argue that this chamber is akin to a sort of ‘ arbitration within the Tribunal’.

92

As provided in Article 187 of the LOSC, the Seabed Disputes Chamber has jurisdiction over disputes with regard to activities in the Area. Speci

fically the Seabed Disputes Chamber

exercises jurisdiction over disputes (i) between States, (ii) between a State and the Authority, (iii) between the Parties to a contract, including States, a State enterprise, the Authority or the Enterprise, and natural or juridical persons, and (iv) between the Authority and a prospective contractor. It is of particular interest to note that the Seabed Disputes Chamber is open to

entities

other

than States,

such as the

enterprises and natural or juridical persons.

Authority or the

Enterprise,

State

93

However, the Seabed Disputes Chamber has no jurisdiction with regard to the exercise by the Authority of its discretionary powers. In no case shall it substitute its discretion for that of the Authority. Furthermore, the Chamber is not allowed to pronounce on the question of whether any rules and regulations of the Authority are in conformity with the LOSC, nor declare invalid any such rules and regulations.

94

A judgment given by the Seabed Disputes

Chamber is considered to be rendered by ITLOS.

95

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 by virtue of Article 39 of the ITLOS Statute. Furthermore, as will be seen, the Chamber also has jurisdiction to give advisory opinions.

96

4.3 Special Chambers

ITLOS may form three types of special chamber in accordance with Article 15 of the ITLOS Statute. Ad hoc judges may be appointed in special chambers pursuant to Article 17(4) of

92

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?’ (2008) 51

93 96

Yearbook of International Law, pp. 161 See ITLOS Statute, Article 37. See section 5.6 of this chapter.

94

–162.

LOSC, Article 189.

95

ITLOS Statute, Article 15(5).

Japanese

514

Protection of Community Interests at Sea the Statute. A judgment given by any of the chambers is considered to be rendered by ITLOS under Article 15(5) of the Statute. (i) Chamber dealing with particular categories of disputes: on the model of Article 26(1) of the ICJ Statute, Article 15(1) of the ITLOS Statute merely provides that ITLOS may form this type of chamber, composed of three or more of its selected members. In this case, it shall determine the particular category of disputes for which it is formed, the number of its members, the period for which they will serve, the date when they will enter upon their duties and the quorum for meetings. The members of the chamber are selected by ITLOS upon the proposal of its President from among the members, having regard to any special knowledge, experience or previous experience in relation to the category of disputes the chamber deals with.

97

Accordingly, the expertise of members is secured in this type of

chamber. In 1997, ITLOS formed two chambers of this type, namely, the Chamber for Fisheries Disputes and the Chamber for Marine Environment Disputes. In 2007, the Chamber for Maritime Delimitation Disputes was established. (ii) Chamber dealing with a particular dispute: this chamber is known as an ad hoc chamber. On the model of Article 26(2) of the ICJ Statute, Article 15(2) of the ITLOS Statute obliges ITLOS to form the chamber if the parties so request. The composition of an ad hoc chamber is determined by ITLOS with the approval of the parties. A request for the formation of an ad hoc chamber must be made within two months from the date of the institution of proceedings.

98

fish Stocks case

The ad hoc chamber was formed in the Sword

between Chile and the European Community in 2000 and in the Ghana/Côte d’Ivoire case concerning maritime delimitation.

99

(iii) Chamber of Summary Procedure: the establishment of this chamber is mandatory and it is formed annually with a view to the speedy dispatch of business. President and the Vice-President of ITLOS, acting ex of

100

It is composed of the

ficio, and three other members. In

addition, two members are to be selected to act as alternates. The members and alternates of the chamber are to be selected by ITLOS upon the proposal of its President.

101

The Chamber

of Summary Procedure can deal with applications for prompt release if the applicant has so requested in the application.

102

5 THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA (2): PROCEDURE

5.1 Jurisdiction of ITLOS The jurisdiction of ITLOS is provided in Article 288 of the LOSC and Articles 21 and 22 of the Statute. Concerning jurisdiction ratione materiae, Article 288 holds that ITLOS has jurisdiction over any dispute concerning the interpretation and application of the LOSC, which is submitted to it in accordance with Part XV. It also has jurisdiction over any dispute

97 99 101

Rules of the Tribunal, Article 29.

fi

98

Rules of the Tribunal, Article 30(1).

The proceedings of the Sword sh Stocks case were discontinued. Rules of the Tribunal, Article 28.

102

100

ITLOS Statute, Article 15(3).

Rules of the Tribunal, Article 112.

515

Peaceful Settlement of International Disputes concerning the interpretation and application of an international agreement related to the purposes of the LOSC, which is submitted to it in accordance with the agreement. Furthermore, ITLOS has jurisdiction over all disputes and all applications submitted to it in

fi cally provided for in any other agreement

accordance with the LOSC and all matters speci which confers jurisdiction on the Tribunal.

103

If all the parties to a treaty or convention

already in force and concerning the subject matter covered by the LOSC so agree, any disputes concerning the interpretation or application of such treaty or convention may, in accordance with such agreement, be submitted to ITLOS. With regard to jurisdiction

ratione personae

104

, ITLOS is open to States Parties to the LOSC.

It is also open to entities other than States Parties, but only as speci the Convention.

105

fically provided for in

In this regard, Article 20(2) of the ITLOS Statute holds that the Tribunal

shall be open to entities other than States Parties in any case expressly provided for in Part XI or in any case submitted pursuant to any other agreement conferring jurisdiction on the Tribunal which is accepted by all the parties to that case. In fact, Article 37 of the ITLOS Statute makes clear that the Seabed Disputes Chamber is to be open to the States Parties, the Authority and the other entities referred to in Part XI, section 5. Such entities would comprise the Enterprise, State enterprises and natural or juridical persons.

106

To this extent,

ITLOS seems to open up the possibility of potential parties other than States coming before the Tribunal.

107

5.2 Applicable Law

The applicable law of ITLOS consists of the LOSC and other rules of international law not incompatible with this Convention. ITLOS may also decide a case parties so agree.

108

ex aequo et bono

if the

Furthermore, the Seabed Disputes Chamber shall apply the rules,

regulations and procedures of the Authority and the terms of contracts concerning activities in the Area in accordance with Article 38 of the ITLOS Statute. A particular issue that arises in this context is whether or not ITLOS can determine disputes concerning rules of customary international law.

109

Article 21 of Annex VI

provides:

The jurisdiction of the Tribunal [ITLOS] comprises

all disputes and all applications submitted to

it in accordance with this Convention and all matters speci

fi

cally provided for in any other

110

agreement which confers jurisdiction on the Tribunal.

103 106 107 108 109

ITLOS Statute, Article 21.

105

ITLOS Statute, Article 22.

LOSC, Article 187. Wolfrum, ‘The Settlement of Disputes’, pp. 143– 145; Eiriksson, LOSC, Article 293. See Separate Opinion of Judge Wolfrum and Judge Cot in the pp. 364 –365, paras. 6 –7.

110

104

Emphasis added.

LOSC, Article 291.

The International Tribunal

ARA Libertad

, p. 115.

case, ITLOS Reports 2012,

516

Protection of Community Interests at Sea Under this provision, the jurisdiction of the Tribunal is much less restricted than laid down in Article 288.

111

Under Article 293(1), ‘[a] court or tribunal having jurisdiction under this

section shall apply this Convention and other rules of international law not incompatible with this Convention ’. It can be argued that ‘other rules of international law not incompatible with this Convention [LOSC]’ include rules of customary international law. It seems to follow that a court or a tribunal referred to in Article 287 may decide matters of customary international law.

112

In fact, ITLOS, in the

M/V ‘Saiga’ (No.2) case (Merits), applied 113

‘ international law ’ by virtue of Article 293 of the LOSC.

Annex VII Arbitral Tribunal in the 2015

The dictum was echoed by the

Arctic Sunrise Arbitration, stating that

‘ the

Tribunal may . . . pursuant to Article 293, have regard to the extent necessary to rules of customary international law, including international human rights standards, not incom114

patible with the Convention’ .

5.3 Proceedings Before ITLOS

As stated in Article 24 of the ITLOS Statute, disputes are submitted to ITLOS either by noti

fication of a special agreement or by written application, addressed to the Registrar. In

either case, the subject of the dispute and the parties shall be indicated. Article 54(2) of the ITLOS Rules requires that the application shall specify as far as possible the legal grounds upon which the jurisdiction of ITLOS is said to be based; it shall also specify the precise nature of the claim, together with a succinct statement of the facts and grounds on which the claim is based. As with proceedings before the ICJ, non-appearance of a party in dispute may be at issue 115

in the proceedings before ITLOS.

In this regard, Article 9 of Annex VII to the LOSC

provides:

If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings.

116

In the 2013 Arctic Sunrise case, the Russian Federation did not participate in the proceedings 117

for provisional measures before ITLOS.

111 113

Eiriksson, The International Tribunal, p. 113.

In this regard, ITLOS held that ‘ the absence of a

112

Ibid. See also Boyle, ‘Dispute Settlement ’, p. 49.

The M/V ‘Saiga’ (No. 2) Case (Saint Vincent and the Grenadines v Guinea), Judgment, ITLOS Reports 1999, pp. 61 –62, para. 155.

114

The Arctic Sunrise Arbitration Award (Merits), para. 191 and para. 198. The dictum was supported by the Annex VII Arbitral Tribunal in the Duzgit Integrity Arbitration (Malta v São Tomé and Príncipe), Award of 5 September 2016, para. 207.

115 116 117

See Article 28 of the Statute of ITLOS. See also the Arctic Sunrise Arbitration Award (Merits), para. 8.

Note verbale of the Embassy of the Russian Federation in Berlin, dated 22 October 2013. See www.itlos.org/cases/list-of-cases/case-no-22/. For a detailed analysis of the Arctic Sunrise case,

517

Peaceful Settlement of International Disputes party or failure of a party to defend its case does not constitute a bar to the proceedings and does not preclude the Tribunal from prescribing provisional measures, provided that the parties 118

have been given an opportunity of presenting their observations on the subject’ .

At the

same time, it stressed that ‘the non-appearing State is nevertheless a party to the proceedings’.

119

Accordingly, the non-appearing party is bound by the decision pursuant to Article 120

33 of the ITLOS Statute and the same applies to the order concerning provisional measures.

5.4 Incidental Proceedings

(a) Preliminary Objections As stated in Article 288(4) of the LOSC, in the event of a dispute as to whether a court or tribunal has jurisdiction, the matter is to be settled by the decision of that court or tribunal. The procedure for preliminary objections is ampli

fied by Article 97 of the ITLOS Rules. Under

Article 97(1), any objection to ITLOS ’ jurisdiction or to the admissibility of the application, or other objection the decision upon which is requested before any further proceedings on the merits, must be made in writing within ninety days from the institution of proceedings. The preliminary objection must set out the facts and the law on which the objection is based, as well as the submissions in accordance with Article 97(2). As provided in Article 97(3), the submission of the preliminary objection suspends the proceedings on the merits. Further, Article 97(6) makes clear that ITLOS gives its decision in the form of a judgment. In relation to objections to admissibility, two issues may arise. The

first issue relates to

the nationality of claims. Any vessel can have a crew or other persons who are not nationals of the

flag State. Here an issue arises with regard to the relationship between the right of the

State of nationality of the persons involving shipping operations to exercise diplomatic protection and the right of the

flag State to seek redress.

121

In the 1999 M/V ‘Saiga’ (No.2)

case, Guinea claimed that Saint Vincent and the Grenadines was not competent to institute claims for damages in respect of natural and juridical persons who are not nationals of Saint Vincent and the Grenadines. However, ITLOS did not accept Guinea ’s claim, stating:

The provisions referred to in the preceding paragraph [i.e. Articles 94, 106, 110(3), 111(8), 217, and 292] indicate that the Convention considers a ship as a unit, as regards the obligations of the

flag State with respect to the ship and the right of a flag State to seek reparation for loss or

see D. Guilfoyle and C. A. Miles, ‘Provisional Measures and the MV Arctic Sunrise’ (2014) 108 AJIL, pp. 271–287; A. G. Oude Elferink, ‘The Arctic Sunrise Incident: A Multi-faceted Law of the Sea Case with a Human Rights Dimension’ (2014) 29 IJMCL, pp. 244–289. 118

The Arctic Sunrise case (The Netherlands v Russian Federation), Provisional Measures, ITLOS Reports 2013, p. 242, para. 48.

119 120

Ibid., para. 51. Joint Separate Opinion of Judge Wolfrum and Judge Kelly, ibid ., pp. 256– 257, paras. 3–4; Separate Opinion of Judge Paik, pp. 275 –277, paras. 4 –6.

121

See also Article 18 of the ILC ’s Draft Articles on Diplomatic Protection.

518 Protection of Community Interests at Sea damage caused to the ship by acts of other States and to institute proceedings under article 292 of the Convention. Thus the ship, everything on it, and every person involved or interested in its operations are treated as an entity linked to the persons are not relevant.

fl

ag State. The nationalities of these

122

The dictum in the M/V ‘Saiga’ (No. 2) judgment was echoed by ITLOS in the 2014 M/V

Virginia G case between Panama and Guinea-Bissau. In this case, Guinea-Bissau contended that there was no single person or entity related to the M/V Virginia G that was of Panamanian nationality. It therefore argued that the framework of diplomatic protection did not give Panama locus standi, referring to claims of persons or entities that were not nationals of Panama. However, ITLOS found that ‘the M/V Virginia G is to be considered as a unit and therefore the M/V Virginia G, its crew and cargo on board as well as its owner and every person involved or interested in its operations are to be treated as an entity linked to the

flag

State’.

123

In the Tribunal’ s view, ‘in accordance with international law, the

exercise of diplomatic protection by a State in respect of its nationals is to be distinguished from claims made by a

flag

State for damage in respect of natural and juridical persons

involved in the operation of a ship who are not nationals of that State ’.

124

ITLOS thus

rejected the objection raised by Guinea-Bissau. The view of ITLOS was supported by the 125

Annex VII Arbitral Tribunal in the 2015 Arctic Sunrise Arbitration.

The second issue concerns the applicability of the exhaustion of local remedies rule. Under Article 295 of the LOSC, any dispute between States Parties concerning the interpretation or application of the LOSC may be submitted to the compulsory procedures provided for in section 2, Part XV of the Convention only after local remedies have been exhausted where this is required by international law. The exhaustion of local remedies is required when a State is exercising diplomatic protection.

126

The applicability of the

exhaustion of local remedies was at issue in the M/V ‘Saiga’ (No. 2) case, where Guinea objected to the admissibility of the case because Saint Vincent and the Grenadines had failed to exhaust local remedies available in Guinea. In this case, ITLOS held that the rule on the exhaustion of local remedies did not apply because the claims advanced by Saint Vincent and the Grenadines all involved direct violations of the rights of that State.

127

The approach of the M/V ‘Saiga’ (No.2) case was echoed by ITLOS in the M/V Virginia G case. According to ITLOS, ‘ the exhaustion of local remedies rule does not apply where the claimant State is directly injured by the wrongful act of another State ’.

128

Furthermore, the

Tribunal stated:

122

The M/V ‘ Saiga’ (No. 2) case (Saint Vincent and the Grenadines v Guinea), Judgment, ITLOS Reports 1999, p. 48, para. 106.

123 124 126 127 128

The M/V Virginia G case (Panama v Guinea-Bissau) , Judgment, ITLOS Reports 2014, p. 43, para. 127.

Ibid., para. 128.

125

The Arctic Sunrise Arbitration Award (Merits), paras. 170 –172.

The Duzgit Integrity Arbitration Award, para. 147. The M/V ‘Saiga’ (No. 2) case, ITLOS Reports 1999, pp. 43–47, paras. 89 –102. The M/V Virginia G case, ITLOS Reports 2014, p. 54, para. 153.

519 Peaceful Settlement of International Disputes

When the claim contains elements of both injury to a State and injury to an individual, for the purpose of deciding the applicability of the exhaustion of local remedies rule, the Tribunal has 129

to determine which element is preponderant.

In the M/V Virginia G case, ITLOS ruled that the rule of exhaustion of local remedies did not apply to this case since the principal rights that Panama alleged had been violated by Guinea-Bissau were rights that belonged to Panama under the LOSC.

130

Likewise, ITLOS in

the M/V Norstar case considered that a violation of the right of Panama to enjoy freedom of navigation on the high seas (a right that belongs to Panama under Article 87 of the LOSC) would amount to direct injury to Panama, and that the claims for damage to the persons and entities with an interest in the ship or its cargo arise from the alleged injury to Panama. It thus concluded that the claims in respect of such damage are not subject to the rule of exhaustion of local remedies.

131

(b) Provisional Measures Provisional measures seek to preserve the respective rights of the disputing parties pending the

final

decision of a court and to ensure the effectiveness of its judgment and judicial

functions. The power to prescribe provisional measures is provided by Article 290(1) of the LOSC:

If a dispute has been duly submitted to a court or tribunal which considers that

prima facie it

has jurisdiction under this Part or Part XI, section 5, the court or tribunal 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.

Article 25(1) of the ITLOS Statute makes clear that ITLOS and its Seabed Disputes Chamber are empowered to prescribe provisional measures in accordance with Article 290. As stated in Article 25(2) of the Statute, the Chamber of Summary Procedure shall prescribe provisional measures if ITLOS is not in session or a suf

ficient

number of members are not

available to constitute a quorum. Such provisional measures are subject to review or revision of ITLOS at the written request of a party within

fifteen days of the prescription

of the measures. ITLOS may also at any time decide proprio motu to review or revise the measures.

129

132

While there is no explicit provision in the ITLOS Statute, special chambers

Ibid., para. 157. This view was echoed by the Annex VII Arbitral Tribunal in the Duzgit Integrity Arbitration.

–

The Duzgit Integrity Arbitration Award, paras. 151 152. 130

Ibid., paras. 157 –160. Yet nine judges voted against this part of the judgment.

131

The M/V ‘Norstar ’ case, Preliminary Objections, ITLOS Reports 2016, p. 103, paras. 270 271.

132

Rules of the Tribunal, Article 91(2).

–

520 Protection of Community Interests at Sea dealing with a particular category of disputes or a particular dispute may also prescribe provisional measures since such chambers act as an organ of ITLOS.

133

Furthermore, under Article 290(5), ITLOS (or, with respect to activities in the Area, the Seabed Disputes Chamber)

has residual jurisdiction

to prescribe provisional

measures

concerning a dispute that has been submitted to an arbitral tribunal, provided that two conditions are satis

fied.

134

First, a request for provisional measures has been communicated

by one of the disputing parties to the other party or parties, and they could not agree, within a period of two weeks after the request was made, on a court or tribunal to which the request has been submitted. Second, ITLOS concludes that prima facie the arbitral tribunal to which the dispute is being submitted on the merits would have jurisdiction over the merits of the dispute. Article 290 requires

five observations. First, Article 290(1) states that the court or tribunal

may ‘ prescribe’ provisional measures, whereas Article 41(1) of the Statute of the ICJ uses the term ‘ indicate’ . Further to this, Article 290(6) is clear: ‘The parties to the dispute shall comply

promptly with

any provisional

measures prescribed under this

article. ’

These

provisions signify that provisional measures prescribed by ITLOS are binding upon the disputing parties.

135

In relation to this, Article 95(1) of the ITLOS Rules obliges each party to

inform ITLOS as soon as possible of its compliance with any provisional measures the tribunal has prescribed. Second, concerning the duration of the effect of provisional measures, Article 290(5) provides that, once constituted, the arbitral tribunal to which the dispute has been submitted may modify, revoke or af

firm

those provisional measures. It follows that where a

dispute has been submitted to an arbitral tribunal, the provisional measures are to be binding pending a decision of the arbitral tribunal.

136

Where ITLOS considers a request

for provisional measures under Article 290(1), these measures will be in force pending its own

final decision.

Third, unlike Article 41(1) of the ICJ Statute, Article 290(1) refers to the prevention of ‘ serious harm to the marine environment’ . Reference to marine environmental protection,

which is not directly linked to the interests of the disputing parties, as a justi

fication

for provisional measures appears to highlight the importance of marine environmental

133 134 135

Wolfrum, ‘The Settlement of Disputes’, p. 153. T. A. Mensah, ‘Provisional Measures in the International Law of the Sea (ITLOS)’ (2002) 62 ZaöRV , p. 46. T. Treves, ‘Article 290’, in A. Prölss (ed.), United Nations Convention on the Law of the Sea: A Commentary (Munich, Beck/Oxford, Hart Publishing/Baden-Baden, Nomos, 2017) (hereinafter Prölss, A Commentary), p. 1874. The legal effects of provisional measures indicated by the ICJ have been the subject of extensive controversy in the literature. The ICJ, in the LaGrand case of 2001, ended the long debate in this matter by accepting the binding force of provisional measures. ICJ Reports 2001, p. 503, para. 102.

136

fin Tuna cases, clearly stated that it prescribed the provisional measures Southern Bluefin Tuna cases (New Zealand v Japan;

In fact, ITLOS, in the Southern Blue

‘pending a decision of the arbitral tribunal ’. The

Australia v Japan), Provisional Measures, ITLOS Reports 1999, p. 297, para. 90. According to Judge Treves, this expression should be read as meaning up to the moment in which a judgment on the merits has been rendered. Separate Opinion of Judge Treves, ibid., p. 1644, para. 4. See also the MOX Plant case, ITLOS Reports 2001, pp. 110, para. 89; Treves, ‘Article 290 ’, p. 1877.

521 Peaceful Settlement of International Disputes 137

protection as a community interest.

In fact, ITLOS made strong commitments in the protec-

tion of the marine environment by ordering the disputing parties to carry out a transboundary environmental impact assessment or monitoring through its provisional measures.

138

fied

Fourth, Article 290(3) holds that provisional measures may be prescribed, modi

or

revoked under this Article only at the request of a party to the dispute and after the parties have been given an opportunity to be heard.

139

Thus there must be a request from a

disputing party to prescribe provisional measures. Unlike the ICJ,

140

ITLOS does not possess

141

the power to prescribe provisional measures proprio motu .

Fifth, ITLOS may prescribe provisional measures different in whole or in part from those requested. This is clear from Article 89(5) of the ITLOS Rules. In fact, it exercised this power in all cases prescribing provisional measures.

five cases submitted to ITLOS have involved a request for the

To date, ten out of twenty-

prescription of provisional measures, and the Tribunal has prescribed provisional measures in nine cases (see Table 13.3). Provisional measures occupy an important place in the ITLOS jurisprudence. In order to prescribe provisional measures under the LOSC, the following conditions must be satis

fied:

(i) Prima facie jurisdiction: Article 290(1) makes clear that it is necessary that the court or tribunal seized of a request for provisional measures has, prima facie, i.e. presumptively, jurisdiction under Part XV or Part XI, section 5 of the LOSC. This is a key requirement in the prescription of provisional measures. In this regard, two cases must be distinguished. First, where a dispute has been submitted to ITLOS and a party to the dispute requests the tribunal to prescribe provisional measures, ITLOS has to verify its own prima facie jurisdiction. Second, as explained earlier, pending the constitution of an arbitral tribunal, ITLOS (or, with respect to activities in the Area, the Seabed Disputes Chamber) may prescribe provisional measures in accordance with Article 290(5). In this case, ITLOS or the Seabed Disputes Chamber is required to determine whether the arbitral tribunal to which a dispute is being submitted would have prima facie jurisdiction. Normally, once an international court has established prima facie jurisdiction at the request for provisional measures stage, the same body may reasonably be expected to entertain the merits of the case. Yet this has not always been the case.

142

Recently, ITLOS in 143

the M/V ‘Louisa’ case found that it had no jurisdiction to deal with the case, had

con

firmed

measures.

137 138

prima

facie

jurisdiction

at

the

stage

of

the

request

for

although it provisional

144

Wolfrum, ‘The Settlement of Disputes’, p. 155. The MOX Plant case, ITLOS Reports 2001, pp. 110–111, para. 89; the Land Reclamation case, Provisional Measures, ITLOS Reports 2003, p. 27, para. 106(1)(a).

139 141 142 143

See also ITLOS Statute, Article 25(2).

140

Rules of the ICJ, Article 75(1).

Treves, ‘Article 290’, p. 1875. On this issue, see Y. Tanaka, ‘A Note on the M/V “Louisa” Case’ (2014) 45 ODIL , pp. 209–211. The M/V ‘Louisa’ case (Saint Vincent and the Grenadines v Kingdom of Spain), Judgment, ITLOS Reports 2013, p. 46, para. 151 and p. 47, para. 160.

144

The M/V ‘Louisa’ case, Provisional Measures, Order, 23 December 2010, ITLOS Reports 2008–2010, p. 69, para. 70.

522

Protection of Community Interests at Sea T A B L E 1 3 . 3 L I S T O F I T L O S C A S E S C O N C E R N I N G P R O V IS I O N A L M E A S U R E S

Year

Case

Outcome

1998

The M/V ‘ SAIGA’ (No. 2) case

Prescribed*

(Saint Vincent and the Grenadines v Guinea)

fi

1999

The Southern Blue n Tuna cases

Prescribed*

(New Zealand v Japan; Australia v Japan) 2001

The MOX Plant case

Prescribed*

(Ireland v United Kingdom ) 2003

The Land Reclamation case

Prescribed*

(Malaysia v Singapore) 2010

The M/V ‘ Louisa’ case

Not-prescribed

(Saint Vincent and the Grenadines v Spain) 2012

The ‘ARA Libertad’ case

Prescribed*

(Argentina v Ghana) 2013

The ‘Arctic Sunrise ’ case

Prescribed*

(The Netherlands v Russian Federation) 2015

Dispute concerning Delimitation of the Maritime Boundary

Prescribed*

(Ghana v Co ˆ te D’Ivoire ) 2015

The ‘Enrica Lexie ’ Incident

Prescribed*

(Italy v India ) Bold type: the State which requested provisional measures * ITLOS prescribed measures different in whole or in part from those requested.

(ii) The plausible character of the alleged rights in the principal request: This requirement was, for the

first time in the ITLOS jurisprudence, discussed in the Ghana/Côte D ’Ivoire case

of 2015. In this case, the ITLOS Special Chamber took the view that it needs to satisfy itself that the rights which the Ivory Coast claims on the merits and seeks to protect are at least plausible.

145

The plausibility test was also applied by ITLOS in the 2015 Enrica Lexie

Incident case.

146

It seems that this is in line with the development of ICJ jurisprudence in

this matter. While the ICJ had not explicitly examined the plausibility of the alleged rights in the principal request as a distinct condition for provisional measures, the Court explicitly considered this element in the 2011 Costa Rica/Nicaragua case as a distinct requirement for indicating provisional measures.

147

Yet, the Court, in its jurisprudence, did not clarify the

standard for the plausibility test. Likewise ITLOS and its Special Chamber provided no further

145

precision

with

regard

to

the

criterion

for

determining

the

plausibility

of

the

The Ghana/Côte d ’Ivoire case, ITLOS Reports 2015, p. 158, para. 58. The Special Chamber ruled that Côte d ’Ivoire had presented enough material to show that the rights it seeks to protect in the disputed area are plausible. Ibid., p. 159, para. 62.

146 147

The Enrica Lexie Incident (Italy v India), Provisional Measures, ITLOS Reports 2015, p. 197, para. 85.

Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua) (hereinafter the Costa Rica/Nicaragua case), Provisional Measures, Order of 8 March 2011, ICJ Reports 2011, p. 19, para. 57.

523 Peaceful Settlement of International Disputes disputing party ’ s claim. The examination of the plausibility of the alleged rights at the stage of provisional measures may run the risk of dealing with matters which should be examined at the stage of the merits. (iii) Interlinkage between provisional measures and the application made: As the prescription of provisional measures is intended to preserve rights that are in dispute, such measures must be ancillary to the main claim. Accordingly, provisional measures cannot be used to deal with issues which are not the subject of the main dispute and must not go beyond what is required to preserve the parties ’ respective rights in relation to the case. The interlinkage between the preservation of alleged rights of the parties and provisional measures seems to be con

firmed by ITLOS in the ARA Libertad case

148

and the Arctic Sunrise case.

149

(iv) Urgency: Urgency is an essential requirement of the prescription of provisional measures.

150

Article 290(5) clari

fies

this condition, by providing that ‘ the urgency of

situation so requires ’ . Article 89(4) of the ITLOS Rules requires that a request for the prescription of provisional measures must indicate ‘ the urgency of the situation’ . Unlike the ICJ,

151

however, ITLOS seems to be

flexible with regard to the requirement of

urgency. In the MOX Plant case, for instance, ITLOS ordered provisional measures, even though there was no urgency.

152

fin Tuna cases, ITLOS did not provide

In the Southern Blue

any precision as to the situation that required such measures urgently, although it found that measures should be taken as a matter of urgency to preserve the rights of the parties and to avert further deterioration of the southern blue

fin tuna stock.

153

ITLOS, in the 2010

M/V ‘Louisa’ case, focused on the question of whether or not there existed a real and imminent risk that irreparable prejudice would be caused to the rights of the parties, without directly referring to urgency.

154

While the existence of urgency was the most

contentious issue in the 2015 Enrica Lexie Incident case, ITLOS, in its Order of 2015, did not advance any satisfactory reason for urgency.

155

determine the situation of urgency needs further clari

In this connection, the standard to

fication. In this regard, two types of

standard must be examined: the qualitative and temporal standards. Concerning the qualitative standard, the case law of the ICJ appears to show that the situation of urgency is closely linked to a risk of irreparable damage to rights of one or other of the parties.

156

In some cases, ITLOS has also linked the urgency requirement to irrepar-

able prejudice. In the Ghana/Côte d’Ivoire Order of 25 April 2015, for instance, the ITLOS

148 149 150

The ARA Libertad case, ITLOS Reports 2012, p. 349, para. 100. The Arctic Sunrise case, ITLOS Reports 2013, p. 248, para. 86.

fi

Separate Opinion of Judge Treves in the Southern Blue n Tuna cases, ITLOS Reports 1999, p. 316, para. 2; Treves, ‘Article 290’, p. 1873.

151

In the ICJ jurisprudence, the Court is empowered to indicate provisional measures only if there is an urgent need to prevent irreparable harm to rights that are the subject of the dispute. See for instance the Costa Rica/

Nicaragua case, pp. 21 –22, para. 64. 152 153 154 155

The MOX Plant case, ITLOS Reports 2001, p. 110, para. 81. The Southern Blue

fin Tuna cases, ITLOS Reports 1999, p. 296, para. 80.

The M/V ‘Louisa’ case, ITLOS Reports 2008–2010, p. 69, para. 72. See Declaration of Judge Kateka in the Enrica Lexie Incident case, ITLOS Reports 2015, pp. 208–209, paras. 4 –5.

156

See for instance, the Belgium/Senegal case, Provisional Measures, ICJ Reports 2009, p. 152, para. 62.

524 Protection of Community Interests at Sea Special Chamber held that ‘ urgency is required in order to exercise the power to prescribe provisional measures, that is to say the need to avert a real and imminent risk that irreparable delivered ’.

prejudice

157

may

be

caused

to

rights

at

issue

before

the

final

decision

is

In other cases, however, the linkage between the urgency of the situation

and irreparable prejudice remains obscure.

158

It can be observed that the standard of 159

‘ irreparable damage ’ is not fully endorsed in the ITLOS jurisprudence.

Concerning the temporal standard, it appears that paragraphs 1 and 5 of Article 290(1) provide different time frames when considering the urgency of the situation. Where a dispute was submitted to ITLOS, the Tribunal examines the question as to whether urgency exists pending its own

final decision under Article 290(1) of the LOSC. Where a dispute has

been submitted to an arbitral tribunal, ITLOS is required to determine whether the urgency of the situation requires provisional measures ‘ pending the constitution of the arbitral tribunal ’ pursuant to LOSC Article 290(5). Two contrasting interpretations exist with regard to the above provisions. According to a restrictive interpretation, the functions of the Tribunal under paragraphs 1 and 5 of Article 290 are different. Under LOSC Article 290(5), ITLOS is to determine whether the urgency of the situation requires provisional measures ‘pending the constitution of the arbitral tribunal ’. It follows that the requirement of urgency under paragraph 5 of Article 290 is stricter than the same requirement in paragraph 1 thereof. This interpretation was supported by Judge Heider in the ‘Enrica Lexie’ Incident case.

160

In the same case, Judge Rao

also stated: ‘ The urgency of the situation has to be assessed not on a long term basis but with 161

reference to the short period involved before the Annex VII arbitral tribunal is constituted. ’

According to the broad interpretation, the assessment of the urgency of the situation is not

fined to the period that an arbitral tribunal is being constituted. In the Land Reclamation case,

con

ITLOS held that ‘there is nothing in article 290 of the Convention to suggest that the measures prescribed by the Tribunal must be con

fined to that period . ’

162

In the view of the Tribunal:

the said period is not necessarily determinative for the assessment of the urgency of the situation or the period during which the prescribed measures are applicable and that the urgency of the situation must be assessed taking into account the period during which the Annex VII arbitral tribunal is not yet in a position to ‘modify, revoke or af

fi

rm those provisional

163

measures’.

157 158

The Ghana/Côte d’Ivoire Order, ITLOS Reports 2015, p. 156, para. 42. See, for instance, the Arctic Sunrise case, ITLOS Reports 2013, p. 249, para. 89; the ARA Libertad case, ITLOS Reports 2012, p. 349, para. 100.

159

N. Klein, Dispute Settlement in the UN Convention on the Law of the Sea (Cambridge University Press, 2005), p. 78.

160

Dissenting Opinion of Judge Heider in the ‘Enrica Lexie’ Incident case, ITLOS Reports 2015, pp. 288 –289, paras. 6 –7 and p. 290, para. 12.

161

Dissenting Opinion of Judge P. Chandrasekhara Rao in the ‘ Enrica Lexie’ Incident case, ibid., p. 241, para. 6. Treves also took a similar view. Treves, ‘Article 290 ’, p. 1877.

162

The Land Reclamation case, ITLOS Reports 2003, p. 22, para. 67.

163

Ibid., para. 68.

525 Peaceful Settlement of International Disputes This view was con

firmed by the Tribunal in the

164

Arctic Sunrise Order.

According to the

broad interpretation, the difference between the time frame of paragraphs 1 and 5 of Article 290 will be thin. In considering the temporal standard for determining the urgency of situation, two types of urgency need to be distinguished. The

first

type concerns the concept of urgency as

imminence. ‘Urgency’ in international law is often connected to imminent danger or risk.

165

For example, execution within a very short period of time in the LaGrand case can be considered as an imminent risk.

166

In this case, urgency means imminence. Likewise, an

accident involving an oil platform, such as Deepwater Horizon oil spill of 2010, may also cause an imminent danger. In this case, too, urgency is equivalent to imminent. The second type relates to the concept of urgency as process. In fact, the requirement of urgency may need different consideration in the context of conservation of marine living

fi

resources. In this regard, Judge Treves, in the Southern Blue n Tuna cases, expressed the 167

insightful view that ‘ [t]he urgency concerns the stopping of a trend towards such collapse’ . Considering that the decline of

fish

stocks is a continuous process, as the learned Judge

suggested, it appears that a situation of urgency requiring provisional measures can arise in

fish stocks. It must also be noted that fic uncertainty normally exists in conservation of these resources, prudence and

order to prevent a trend of decline towards collapse of since scienti

‘

caution’ may be required when assessing the existence of urgency.

168

Hence the concept of

urgency in the context of conservation of marine living resources is to be closely linked to the precautionary approach.

169

The same is true of cumulative marine pollution, such as certain

land-based marine pollution. In this case, the concept of urgency does not mean an imminent danger, but concerns the prevention of a trend of deterioration of the marine environment which may create serious harm in the future. In summary, the concept of urgency in the context of conservation of marine living resources and marine environmental protection needs to be considered in a longer time frame than an imminent risk.

(c) Intervention The ITLOS Statute provides two types of third-party intervention. First, Article 31 of the Statute deals with requests to intervene. Article 31(1) provides that a State Party to the LOSC that has an interest of a legal nature which may be affected by the decision in any dispute may submit a request to ITLOS to be permitted to intervene. If a request to intervene is granted, the decision of ITLOS in respect of the dispute is binding upon the intervening

164

The Arctic Sunrise case, ITLOS Reports 2013, p. 248, para. 84. See also Declaration of Judge ad hoc Francioni in the ‘Enrica Lexie’ Incident case, ITLOS Reports 2015, pp. 223– 224, paras. 21– 22.

165

Emmanuel Roucounas, ‘L’urgence et le droit international’, in Le droit international et le temps: Colloque de

Paris (Paris, Pedone, 2001), pp. 201 –203. 166

LaGrand (Germany v United States of America), 3 March 1999, ICJ Reports 1999, p. 14, para. 14, and p. 15, para. 26.

167 168 169

fin Tuna cases, ITLOS Reports 1999, p. 317, para. 8. fin Tuna cases, ITLOS Reports 1999, p. 296, para. 77.

Separate Opinion of Judge Treves in the Southern Blue The Southern Blue

Separate Opinion of Judge Treves, ibid., p. 318, para. 8.

526

Protection of Community Interests at Sea State

Party

intervened.

in

so

far

as

it

relates

to

matters

in

respect

of

which

that

State

Party

170

Second, Article 32 provides a right to intervene in the case of interpretation or application of the LOSC as well as other international agreements. Under Article 32(1), wherever the interpretation and application of the LOSC are in question, the Registrar noti

fies

all

States Parties forthwith. Furthermore, whenever the interpretation or application of an international agreement is in question, the Registrar also noti

fies

all the parties to the

agreement pursuant to Article 32(2). In this case, every party has the right to intervene in the proceedings. If it uses this right, the interpretation given by the judgment will be equally binding upon it in accordance with Article 32(3).

171

5.5 Judgment

All questions must be decided by a majority of the members of ITLOS. In the event of an equality of votes, the President or the member of ITLOS who acts in their place shall have a casting vote.

172

The quorum, i.e. the minimum number of judges required to constitute the

Court, is eleven under Article 13(1) of the ITLOS Statute. Like the ICJ, any member shall be entitled to deliver a separate opinion. decision of ITLOS is

173

Article 33 of the ITLOS Statute holds that the

final and shall be complied with by all the parties to the dispute. The

decision shall have no binding force except between the parties in respect of that particular case.

174

Unless otherwise decided by ITLOS, each party shall bear its own costs.

Unlike the ICJ,

176

175

there is no procedure to ensure the implementation of a judgment of

ITLOS. On the other hand, the LOSC contains provisions with regard to measures to be taken to implement a decision by the Seabed Disputes Chamber. Where the Council of the Authority institutes proceedings on behalf of the Authority before the Seabed Disputes Chamber,

the

Legal

and Technical

Commission

of

the

Authority

is

entitled

to

make

recommendations to the Council with respect to measures to be taken upon a decision by the Seabed Disputes Chamber in accordance with Article 165(2)(j). Pursuant to Article 162 (2)(v), the Council is to notify the Assembly upon a decision by the Seabed Disputes Chamber and make any recommendations which it may

find

appropriate with respect to

measures to be taken. Furthermore, as noted, Article 39 of the ITLOS Statute requires that 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.

170 171 173 175

ITLOS Statute, Article 31(3). See also Rules of the Tribunal, Article 99. See also, Rules of the Tribunal, Article 100. ITLOS Statute, Article 30(3).

174

172

ITLOS Statute, Article 29.

See also LOSC, Article 296.

ITLOS Statute, Article 34. In order to assist developing States which are parties to a dispute before ITLOS, the ITLOS Trust Fund was established in 2000. The terms of reference of the Fund are annexed to UN General Assembly Resolution 55/7 of 30 October 2000 (Annex I).

176

Article 94 of the UN Charter.

527

Peaceful Settlement of International Disputes Article 33(3) of the ITLOS Statute stipulates that in the event of dispute as to the meaning or scope of the decision, ITLOS shall construe it upon the request of any party. While the term ‘ the decision’ appears to include both a judgment and an order, Article 126 of the ITLOS Rules makes clear that in the event of dispute as to the meaning or scope of a

judgment , any party may make a request for its interpretation. Given that the jurisdiction of the Tribunal regarding the interpretation of decisions is provided in Article 33 on

finality

and binding force of decisions, it may not be unreasonable to apply by analogy Article 126 of the ITLOS Rules to orders on provisional measures which are binding on the Parties.

177

Article 127 of the ITLOS Rules provides for revision of the judgment. Under this provision, a request for revision of a judgment may be made only when it is based upon the discovery of some fact of such a nature as to be a decisive factor, which fact was unknown to ITLOS and also to the party requesting revision when the judgment was given. However, such ignorance must not be due to negligence. Such request must be made at the latest within six months of the discovery of the new fact and before the lapse of ten years from the date of the judgment.

5.6 Advisory Proceedings

Like the ICJ, ITLOS is empowered to give advisory opinions. The advisory jurisdiction is exercised by the Seabed Disputes Chamber as well as the ITLOS full court.

(a) The Advisory Jurisdiction of the Seabed Disputes Chamber The Assembly and the Council of the Authority are empowered to request an advisory opinion from the Seabed Disputes Chamber. This means that the advisory jurisdiction is connected with the activities of the two principal organs of the Authority. The underlying reason for the advisory jurisdiction of the Chamber is that the Authority may require the assistance of an independent and impartial judicial body in order to exercise its function properly.

178

Article 159(10) holds that upon a written request addressed to the President and sponsored by at least a quarter of the members of the Authority for an advisory opinion on the conformity with ITLOS of a proposal before the Assembly on any matter, the Assembly is to request the Seabed Disputes Chamber to give an advisory opinion. The Council of the Authority Chamber.

177

is

also

allowed

to

request

an

advisory

opinion

from

the

Seabed

Disputes

179

S.-I. Lekkas and C. Staker, ‘Article 33 Annex VI’, in Prölss, A Commentary , p. 2448; P. Chandrasekhara Rao and P. Gautier (eds.), The Rules of the International Tribunal for the Law of the Sea: A Commentary (Leiden, Brill/Nijhoff, 2006), p. 357.

178

Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (hereinafter 2011 ITLOS Advisory Opinion), ITLOS Reports 2011, p. 23, para. 26.

179

LOSC, Article 191.

528 Protection of Community Interests at Sea The key provision in relation to the advisory jurisdiction of the Chamber is Article 191 of the LOSC:

The Seabed Disputes Chamber shall give advisory opinions at the request of the Assembly or the Council on legal questions arising within the scope of their activities. Such opinions shall be given as a matter of urgency.

This provision contains three conditions for the giving of an advisory opinion: (i) there is a request from the Assembly or Council, (ii) the request concerns legal questions, and (iii) these legal questions have arisen within the scope of the Assembly’ s or Council’s activities.

Where these conditions are met, the Seabed Disputes Chamber is obliged to give an advisory opinion. Unlike Article 65(1) of the ICJ Statute which states that the Court ‘ may give’ an advisory opinion, Article 191 provides that the Chamber ‘ shall give’ advisory opinions. In light of this difference, some argue that once the Chamber has established its jurisdiction, the Chamber has no discretion to decline a request for an advisory opinion. Yet the Chamber, in its that difference.

first advisory opinion of 2011, did not pronounce on the consequences of

180

In the exercise of its functions relating to advisory opinions, the Seabed Disputes Chamber shall consider whether the request for an advisory opinion relates to a legal question pending between two or more parties. When the Chamber so determines, Article 17 of the ITLOS Statute applies, as well as the provisions of the ITLOS Rules concerning the application of that Article.

181

Any judge may attach a separate or dissenting opinion to the advisory opinion of

the Chamber.

182

The advisory opinions of the Chamber have no binding effect.

(b) The Advisory Jurisdiction of the ITLOS Full Court The LOSC contains no explicit provision concerning the advisory jurisdiction of ITLOS as a full court. In the Advisory Opinion of 2015, however, ITLOS took the position that the legal basis of its advisory jurisdiction can be found in Article 21 of the ITLOS Statute:

The jurisdiction of the Tribunal comprises all disputes and all applications submitted to it in

fically provided for in any other

accordance with this Convention and all matters speci agreement which confers jurisdiction on the Tribunal.

180 181

2011 ITLOS Advisory Opinion, ITLOS Reports 2011, pp. 26–27, paras. 47 –48. Rules of the Tribunal, Article 130. Article 17 of the ITLOS Statute relates to nationality of members, including judges ad hoc.

182

Rules of the Tribunal, Article 135(3).

529 Peaceful Settlement of International Disputes According to the Tribunal, the words all ‘ matters’ should not be interpreted as covering only ‘ disputes ’ for, if that were to be the case, Article 21 would have used the word ‘ disputes ’.

Thus the words must mean something more than only ‘disputes ’ and that something ‘ must include advisory opinions, if speci

fically

confers jurisdiction on the Tribunal”’ . speci

183

provided for in “any other agreement which

In the Tribunal’ s view, ‘ the expression “all matters

fically provided for in any other agreement which confers jurisdiction on the Tribunal

”

does not by itself establish the advisory jurisdiction of the Tribunal’ , but ‘ it is the “other 184

agreement” which confers such jurisdiction on the Tribunal’ . Article 138 of the Rules of the Tribunal speci advisory opinion:

fies three prerequisites for ITLOS to give an

185

(i) an international agreement related to the purposes of the Convention speci

fically

provides for the submission to the Tribunal of a request for an advisory opinion, (ii) the request must be transmitted to the Tribunal by a body authorised by or in accordance with the agreement mentioned above, and (iii) such an opinion may be given on ‘ a legal question’.

These elements call for two comments. First, under Article 131(1) of the Rules of the Tribunal, the request precise statement of the question ’ 187

throw light upon the question.

186

‘ shall contain a

and it must be along with all documents likely to

To give an advisory opinion to highly abstract questions

may entail the risk of affecting the rights and obligations of third States, without their consent. Furthermore, as explained above, the Seabed Disputes Chamber is to deal with questions with regard to activities in the Area. Accordingly, it appears logical to consider that a legal question must be unrelated to such activities, though this condition is not expressly stated. Second, the scope of a ‘body’ authorised by an international agreement to request an advisory opinion of ITLOS as a full court needs further clari

fication.

In the case of the

advisory Seabed Disputes Chamber, only the Assembly and Council of the International Seabed Authority are allowed to request an advisory opinion from the Chamber under Article 191 of the LOSC. Yet, there is no corresponding provision in the Rules of the Tribunal. It appears that the opinions of commentators are divided on this matter. According

to

the

broad

interpretation,

any

organ,

entity,

institution,

organisation

or State would be a ‘body ’ within the meaning of Article 138(2) of the Rules of the

183

Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC) (hereinafter 2015 ITLOS Advisory Opinion), ITLOS Reports 2015, p. 21, para. 56. See also P. Gautier, ‘The Settlement of Disputes ’, in IMLI Manual, vol. I, p. 565.

184

2015 ITLOS Advisory Opinion, ITLOS Reports 2015, p. 22, para. 58. Yet the legal basis for the advisory

fl ections

jurisdiction of ITLOS as a full court is not free from controversy. In this regard, see Y. Tanaka, ‘Re

on the Advisory Jurisdiction of ITLOS as a Full Court: The ITLOS Advisory Opinion of 2015 ’ (2015) 14 The

Law and Practice of International Courts and Tribunals , pp. 321–333. 185

2015 ITLOS Advisory Opinion, ITLOS Reports 2015, p. 22, para. 60. See also T. M. Ndiaye, ‘The Advisory Function of the International Tribunal for the Law of the Sea ’ (2010) 9 CJIL, pp. 585 et seq.

186 187

Article 131(1) applies by virtue of Article 138(3) of the Rules of the Tribunal. Rules of the Tribunal, Article 131(1) and 138(3).

530

Protection of Community Interests at Sea Tribunal.

188

According to this interpretation, two States Parties to ‘ any other agreement

which confers jurisdiction on the Tribunal ’ may request an advisory opinion from ITLOS touching on the provisions of the LOSC, whereas the parties to the LOSC cannot request an advisory opinion on the basis of the Convention.

189

This odd situation creates the risk that a

small group of States can obtain some advantages to the detriment of the rights and interests of third States.

190

It might even encourage States to enter into new agreements,

the sole purpose of which is to request for an advisory jurisdiction to the full Tribunal over a matter under another agreement that does not confer such jurisdiction.

191

Thus, some

advocate the restrictive interpretation that ‘ a body ’ under Article 138 of the Rules of the Tribunal should be limited to international organisations.

192

Concerning the admissibility of a request for an advisory opinion, Article 138 of the Rules of the Tribunal states that ‘ the Tribunal

may

193

give an advisory opinion’ .

The

language of this provision seems to suggest that the Tribunal has a discretionary power to refuse to give an advisory opinion. concerning

194

By referring to the advisory opinion of the ICJ

Legality of the Threat or Use of Nuclear Weapons,

195

however, ITLOS held: ‘It is

well settled that a request for an advisory opinion should not in principle be refused except for “compelling reasons ”.’

196

5.7 Prompt Release Procedure

(a) General Considerations The prompt release procedure set out in Article 292 of the LOSC plays an important part in the ITLOS jurisprudence (see Table 13.4). According to the procedure, if a vessel is detained by a coastal State for a violation of its regulations with regard to, for instance,

fisheries or

marine pollution, the vessel shall be promptly released upon posting a bond or other

financial security in order to protect the economic and humanitarian interests of the flag State. At the same time, it is necessary for the detaining State to ensure that the master or other relevant persons on the vessel will appear in its domestic courts. Thus, in the words of

188

Rao and Gautier,

The Rules, p. 394. The broad interpretation is echoed by Judges Wolfrum, Jesus and

Registrar Gautier. Statement by Mr Rüdiger Wolfrum on Agenda Item 75(a), 28 November 2005, para. 16; Judge José Luis Jesus, President of the International Tribunal for the Law of the Sea, The Gilberto Amado Memorial Lecture held during the sixty-

first Session of the International Law Commission, Geneva, 15 July

2009, pp. 9 –10, available at: www.itlos.org/. See also Gautier, ‘The Settlement of Disputes’, pp. 565 –566. 189

Written statement of Australia, ITLOS Case No. 21, 28 November 2013, p. 11, para. 28; presentation by Mr Campbell, Verbatim Record, ITLOS/PV.14/C21/2, 3 September 2014, p. 18, available at: www.itlos.org/cases/list-of-cases/case-no-21/.

190 191 192

Declaration of Judge Cot in the 2015 ITLOS Advisory Opinion, ITLOS Reports 2015, p. 74, para. 9. Written statement of the United States of America, ITLOS Case No. 21, 27 November 2013, p. 12, para. 38. This interpretation is supported by Judges Ndiaye and Treves. Ndiaye, ‘The Advisory Function’, p. 583; T. Treves, ‘Advisory Opinion under the Law of the Sea Convention ’, in J. N. Moore and M. H. Nordquist (eds.),

Current Marine Environmental Issues and the International Tribunal for the Law of the Sea (Leiden, Brill/

Nijhoff, 2001), p. 92. See also Ki-Jun You, ‘Advisory Opinions of the International Tribunal for the Law of the Sea: Article 138 of the Rules of the Tribunal, Revisited’ (2008) 39 193 195 196

Emphasis added.

194

ODIL, pp. 364 –365.

2015 ITLOS Advisory Opinion, ITLOS Reports 2015, p. 25, para. 71.

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p. 235, para. 14. 2015 ITLOS Advisory Opinion, ITLOS Reports 2015, pp. 25–26, para. 71.

531

Peaceful Settlement of International Disputes TABLE 13.4 LIST OF PROMPT RELEASE CASES 1997

The

M/V ‘Saiga’

case (Saint

Vincent and the Grenadines

2000

The

‘

Camouco’

2000

The

‘

Monte Confurco’

2001

The

‘

Grand Prince’

2001

The

‘

Chaisiri Reefer 2’

2002

The

‘

Volga’

2004

The

‘

Juno Trader’

case (Saint

2007

The

‘

Hoshinmaru’

case (Japan v

2007

The

‘

Tomimaru’

case (Panama v

France)

Case (Seychelles v

case ( Belize v

France)

France )

case (Panama v

case (Russian

Federation

v

Yemen)

(removed from the list)

Australia )

Vincent and the Grenadines

case (Japan v

Guinea)

v

v

Guinea-Bissau)

Russian Federation )

Russian Federation )

ITLOS, the prompt release procedure seeks to ‘ reconcile the interest of the

flag State to have

its vessel and its crew released promptly with the interest of the detaining State to secure appearance in its court of the Master and the payment of penalties ’.

197

The jurisdiction of ITLOS under Article 292 is compulsory between all States Parties to the LOSC irrespective of whether they have accepted that jurisdiction under Article 287 of the Convention. The prompt release procedure is not incidental in nature but independent 198

from any other proceedings in ITLOS. decision of a national court.

199

This procedure is not a form of appeal against a

ITLOS can deal only with the question of release, without

prejudice to the merits of the case before the appropriate domestic forum. Article 292(2) makes clear that ‘ [t]he application for prompt release may be made only by or on behalf of the

flag State of the vessel . The phrase ’

‘ on behalf of the

flag State appears ficial, including a ’

to suggest that applications could be made not only by a government of

consular or diplomatic agent, but also by a private person not part of the government of the

flag State if that person is authorised to do so by the flag State. In either case, the detained vessel must be flying the flag of the applicant and, thus, the validity of the registration of a vessel is of particular importance.

(b) Substantive Requirements Article 292 speci

fies

filled

substantive and procedural requirements to be ful

in order to

bring before ITLOS a dispute regarding prompt release. Two substantive requirements exist. First, the prompt release procedure applies only to alleged violations of the provisions of the Convention on the prompt release of a vessel or its crew upon the posting of a reasonable bond or other

197 198

financial security.

200

Views of commentators do not coincide as

The Monte Confurco case (Seychelles v France), Prompt Release, ITLOS Reports 2000, p. 108, para. 71. The M/V ‘Saiga’ case (Saint Vincent and the Grenadines v Guinea), Prompt Release, ITLOS Reports 1997, p. 27, para. 50.

199

The Monte Confurco case, ITLOS Reports 2000, p. 108, para. 72; the Hoshinmaru case (Japan v Russian

Federation) , Prompt Release, ITLOS Reports 2007, p. 47, para. 89. 200

LOSC, Article 292(1).

532 Protection of Community Interests at Sea to which relevant provisions are subject to the prompt release procedure. ITLOS, in the M/V ‘Saiga ’ (No. 1) case of 1997, pointed to three provisions that correspond expressly to the above

description:

226(1)(c).

201

Articles

73(2),

220(6)

and

(7),

and,

at

least

to

a

certain

extent,

There may also be scope for considering that to some extent, the prompt

release procedure applies to Articles 216, 218, 219, 220(2) and 226(1)(b).

202

To date, all

prompt release disputes have concerned the violation of Article 73(2), which relates to enforcement of laws and regulations of the coastal State with respect to living resources. The fact seems to highlight the seriousness of illegal Second, a vessel

fishing.

flying the flag of a State Party to the Convention and/or its crew must

have been detained by the authorities of another State Party. As shown in the Camouco,

Monte Confurco and Hoshinmaru cases, disputes may arise with regard to the legal situation of the crew of a vessel staying in the State which detained the vessel. While the situation of a crew member must be judged on a case-by-case basis, a key factor may be the seizure of the crew member ’s passport by a coastal State authority. In the Camouco and Monte Confurco cases, ITLOS ordered the release of the master in accordance with Article 292(1) of the LOSC in light of the fact that the master ’s passport had been seized by the coastal State authorities.

203

(c) Procedural Requirements The

first procedural requirement for submitting a prompt release dispute to ITLOS is that the

parties have failed to agree on submitting the case to a court or tribunal within ten days from the detention. Once the ten-day period has expired, the question of release may be brought before any court or tribunal accepted by the detaining State under Article 287, or such a question may be directly brought before ITLOS, unless the Parties have agreed otherwise. The ten-day time limit ensures prompt action on this matter. At the same time, it allows the detaining State to release the detained vessel and/or its crew before the matter is brought before a court or tribunal. The second procedural requirement is that the

flag

State has not decided to submit the

application for prompt release to ‘a court or tribunal accepted by the detaining State under Article 287 ’. Owing to the urgency of the prompt release procedure, it is hardly conceivable, in reality, that a

flag State will bring a dispute relating to prompt release before an arbitral tribunal

since it would run the risk of delaying the proceedings by the need to select arbitrators. For the same reason, it appears unlikely, if not impossible, that such a dispute will be submitted to the ICJ unless the Court adopts rules regarding prompt release proceedings.

201 202

204

The M/V ‘Saiga’ (No. 1) case, ITLOS Reports 1997, p. 28, para. 52. Y. Tanaka, ‘Prompt Release in the United Nations Convention on the Law of the Sea: Some Re

flections on

the ITLOS Jurisprudence ’ (2004) 51 NILR, pp. 241 –246; R. Lagoni, ‘The International Tribunal for the Law of the Sea: Establishment and “Prompt Release ” Procedures ’ (1996) 11 IJMCL, pp. 153 –158; D. H. Anderson, ‘Investigation, Detention and Release of Foreign Vessels under the UN Convention on the Law of the Sea of

1982 and Other International Agreements’ (1996) IJMCL, pp. 170–176. 203

The Camouco case (Panama v France), Prompt Release, ITLOS Reports 2000, pp. 32–33, para. 71; the Monte

Confurco case (Seychelles v France), Prompt Release, ITLOS Reports 2000, p. 112, para. 90. 204

T. Treves, ‘The Proceedings Concerning Prompt Release of Vessels and Crews before the International Tribunal for the Law of the Sea’ (1996) 11 IJMCL, p. 188.

533 Peaceful Settlement of International Disputes Third, Article 292(1) inserts another condition by reserving the case where the parties otherwise agree. This represents a fundamental principle of freedom of choice. Thus, if there is such an agreement, it is possible to extend the time limit for negotiation by agreement and not to use the prompt release procedure.

205

financial

However, the deposit of a bond or other

security is not a requirement for

invoking Article 292. This is clear from Article 111(2)(c) of the ITLOS Rules, which provides that the application ‘ shall specify the amount, nature and terms of the bond or other

financial security that may have been imposed by the detaining State . ’

207

this view in the M/V ‘Saiga’ and the Camouco judgments.

206

ITLOS con

firmed

Furthermore, it is generally

recognised that the exhaustion of local remedies rule is not applicable to proceedings regarding prompt release.

208

Is it possible to bring the case before ITLOS if a municipal court of the detaining State has already rendered a judgment? A leading case on this particular matter is the Tomimaru case between Japan and the Russian Federation. The arrested vessel Tomimaru,

was

fiscated

con

in

accordance

with

a

flying the flag of Japan, the

judgment

of

the

Petropavlovsk-

Kamchatsky City Court before the dispute was submitted to ITLOS. After the closure of the hearing before ITLOS, the Supreme Court of the Russian Federation dismissed the complaint concerning the review of the decision on the con ITLOS ruled that a decision to con

fiscate

fiscation

of the Tomimaru.

eliminates the provisional character of the

detention of the vessel rendering the prompt release procedure without object. ITLOS concluded that the application of Japan no longer had any object.

209

210

Therefore,

At the same

fiscation of a fishing vessel must not be used in such a manner as to flag State from resorting to the prompt release procedure set out in the LOSC.

time, it stressed that con prevent the

211

(d) Reasonable Bond A crucial issue in relation to prompt release involves the reasonableness of the bonds to be posted. In the Camouco, Monte Confurco, Grand Prince and Hoshinmaru cases, the applicants alleged that the bonds required by the domestic courts of the detaining States were not ‘ reasonable’.

A number of relevant factors need to be considered when determining the

reasonableness of the bond. In this regard, ITLOS, in the Camouco case, indicated

five factors:

• the gravity of the alleged offences, • the penalties imposed or imposable under the laws of the detaining State, • the value of the detained vessel,

213

• the value of the cargo seized, and • the amount of the bond imposed by the detaining State and its form.

205 207

Ibid.

206

Emphasis added.

The M/V ‘Saiga’ case, ITLOS Reports 1997, p. 34, para. 76; the Camouco case, ITLOS Reports 2000, pp. 30 –31, para. 63.

208 209 211 213

Virginia Commentary, vol. 5, p. 81. The Tomimaru case, Prompt Release, ITLOS Reports 2007, p. 96, para. 76. Ibid., paras. 75 –76.

212

210

Ibid., para. 82.

The Camouco case, ITLOS Reports 2000, p. 31, para. 67.

See also ITLOS Rules, Article 111(2)(b) and (c).

212

534 Protection of Community Interests at Sea As the Monte Confurco judgment stressed, however, the list was by no means complete. Nor did ITLOS lay down rigid rules on the exact weight to be attached to each factor.

214

In this

regard, it stressed: ‘The assessment of the relevant factors must be an objective one, taking into account all information provided to ITLOS by the parties.’

215

However, the evaluation

of those elements is not an easy task in practice. For instance, the ITLOS jurisprudence shows that the value of a vessel cannot always be easily determined. In fact, in the Camouco case, the parties differed on the value of the ship.

216

the parties’ valuations of the vessel differed greatly. case.

218

Likewise, in the Monte Confurco case,

217

The same was true in the Juno Trader

In the Hoshinmaru case, ITLOS did not take the value of the vessel into account in

determining the amount of the bond. It would seem, with respect, that there is a certain degree of inconsistency on this particular matter in the ITLOS jurisprudence.

219

6 CONCLUSIONS This chapter reviewed the dispute settlement procedures in the LOSC. The matters considered in this chapter can be summarised as follows. (i) The dispute settlement mechanism under the LOSC rests on a balance between the voluntary and compulsory procedures. In this regard, the multiple forms of judicial settlement set out in Part XV of the Convention are noteworthy because they seek to strike a balance between the compulsory procedures and the

flexibility

of the selection of an

appropriate forum on the basis of the consent of the disputing parties. (ii) While the establishment of the compulsory procedures for dispute settlement is a key step forward, two important categories of disputes, namely,

fisheries and marine scientific

research in the EEZ, are exempted from the compulsory procedures for dispute settlement. Furthermore, certain categories of disputes – disputes concerning maritime delimitations or those involving historic bays or title, disputes concerning military activities, and disputes in respect of which the UN Security Council is exercising its functions – may also be exempt from such procedures. Moreover, the compulsory procedures may be quali

fied

by the

application of Articles 281 and 282 of the Convention. (iii) ITLOS is a permanent judicial organ and it comprises a variety of chambers. In so doing, ITLOS seems to deal with various types of disputes in the law of the sea. In relation to this, it is noteworthy that with regard to particular disputes, ITLOS is open to a broad range

flects

of entities other than States. It appears that the wide scope of locus standi of ITLOS re the diversity of actors involved in marine affairs.

214

The Monte Confurco case, ITLOS Reports 2000, p. 109, para. 76.

215

The Juno Trader case (Saint Vincent and the Grenadines v Guinea-Bissau), Prompt Release, ITLOS Reports 2004, p. 41, para. 85.

216 217 218 219

The Camouco case, ITLOS Reports 2000, p. 32, para. 69. The Monte Confurco case, ITLOS Reports 2000, p. 111, para. 84. The Juno Trader case, ITLOS Reports 2004, p. 42, para. 92. Declaration of Judge Kolodkin in the Hoshinmaru case, ITLOS Reports 2007, p. 54.

535 Peaceful Settlement of International Disputes

fication,

(iv) The ITLOS jurisprudence has a valuable role in the identi

clari

fication,

consolidation and formulation of rules of the law of the sea. Furthermore, the provisional measures prescribed by ITLOS afford a signi

ficant

judicial tool to protect the marine

environment, including marine living resources. Moreover, advisory opinions of the Seabed Disputes Chamber and ITLOS can be considered as important tools to clarify relevant rules of the law of the sea. (v) Concerning the establishment of ITLOS, a concern was voiced that the creation of a new tribunal specialised in law of the sea disputes would run the risk of separating the development of the law of the sea from the general rules of international law.

220

This

question relates to wider issues with regard to the proliferation of international courts and the fragmentation of international law.

221

So far, the number of disputes referred to ITLOS

remains modest, and it is too early to give a de

finitive answer to this question. All that can

be said here is that ITLOS has endeavoured to secure consistency with the jurisprudence of the ICJ as well as the development of the rules of international law in general. Thus it would be wrong to lay too great an emphasis on the risk of the fragmentation of international law in the ITLOS jurisprudence.

FURTHER READING 1 General A. Boyle, ‘Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and Jurisdiction’ (1997) 46 ICLQ, pp. 37 –54.

flexions sur l accès à la justice international dans le cadre du règlement des

P. Gautier, ‘ Quelques ré

’

différends relatifs au droit de la mer ’, The Global Community. Yearbook of International Law and Jurisprudence, Global Trends: Law, Policy and Justice, Essays in Honour of Professor Giuliana Ziccardi Capaldo (New York, Oceana, 2013), pp. 117 –129. ‘The Settlement of Disputes’ , in IMLI Manual, vol. I, pp. 533–576.

I. V. Karaman, Dispute Resolution in the Law of the Sea (Leiden, Brill/Nijhoff, 2012). N. Klein, Dispute Settlement in the UN Convention on the Law of the Sea (Cambridge University Press, 2005). ‘Expansions and Restrictions in the UNCLOS Dispute Settlement Regime: Lessons from Recent

Decisions’ (2016) 15 CJIL, pp. 403 –415. R. Mackenzie, C. Romano, Y. Shany and P. Sands, The Manual on International Court and Tribunals, 2nd edn (Oxford University Press, 2010) Chapter 2. B. H. Oxman, ‘Courts and Tribunals: The ICJ, ITLOS, and Arbitral Tribunals’, in Oxford Handbook, pp. 394–415.

220 221

S. Oda, ‘Dispute Settlement Prospects in the Law of the Sea’ (1995) 44 ICLQ, p. 864.

fi culties Arising from the Diversification

Generally on this issue, see Fragmentation of International Law: Dif

and Expansion of International Law, Report of the Study Group of the International Law Commission Finalised by Martti Koskenniemi, A/CN.4/L.682, 13 April 2006; R. Higgins, ‘The ICJ, the ECJ, and the Integrity of International Law’ (2003) 52 ICLQ, pp. 1 –20; by the same writer, ‘A Babel of Judicial Voices? Ruminations from the Bench ’ (2006) 55 ICLQ, pp. 791–804.

536 Protection of Community Interests at Sea A. Prölss, ‘Dispute Settlement in Multi-layered Constellations: International Law and the EU’ (2014) 57 GYIL, pp. 225 –254.

2 ITLOS D. Anton (ed.), The Elgar Companion to the International Tribunal for the Law of the Sea (Cheltenham, Edward Elgar, 2018). P. Chandrasekhara Rao and P. Gautier (eds.), The Rules of the International Tribunal for the Law of the Sea: A Commentary (Leiden, Brill/Nijhoff, 2006). P. Chandrasekhara Rao and P. Gautier, The International Tribunal for the Law of the Sea: Law, Practice and Procedure (Cheltenham, Edward Elgar, 2018). G. Eiriksson, The International Tribunal for the Law of the Sea (The Hague, Brill/Nijhoff, 2000). M. G. García-Revillo, The Contentious and Advisory Jurisdiction of the International Tribunal for the Law of the Sea (Leiden, Brill/Nijhoff, 2015). P. Gautier, ‘ The Contribution of the International Tribunal for the Law of the Sea to the Rule of Law’ , in G. De Baere and J. Wouters (eds.), The Contribution of International and Supranational Courts to the Rule of Law (Cheltenham, Edward Elgar, 2015), pp. 203–222. International Tribunal for the Law of the Sea, Digest of Jurisprudence:1996–2016 (Hamburg, ITLOS, 2016). The Contribution of the International Tribunal for the Law of the Sea to the Rule of Law: 1996–2016 (Leiden, Brill/Nijhoff, 2017). G. Le Floch (ed.), Les 20 ans du Tribunal international du droit de la mer (Paris, Pedone, 2018).

č

J. Linkevi tius, ‘International Tribunal for the Law of the Sea: The Limits of Compulsory Jurisdiction’ (2011) 11 Baltic Yearbook of International Law, pp. 153 –172. J.-G. Mahinga, Le Tribunal international du droit de la mer: organisation compétence et procédure (Brussels, Larcier, 2013). T. M. Ndiaye, ‘ Proceedings before the International Law of the Sea’ (2018) Journal of Law and Judicial System, pp. 46 –81. X. H. Oyarce, ‘The International Tribunal for the Law of the Sea ’, in IMLI Manual, vol. I, pp. 643–672.

flections on Its Contribution to Dispute Settlement and the Rule of

J.-H. Paik, ‘ITLOS at Twenty: Re

Law at Sea’ , in M. H. Nordquist, J. N. Moore and R. J. Long (eds.), Legal Order in the World’s Oceans: UN Convention on the Law of the Sea (Leiden, Brill/Nijhoff, 2018), pp. 189–209.

3 Provisional Measures P. Gautier, ‘ Mesures conservatoires, préjudice irréparable et protection de l’environnement ’, in Liber amicorum Jean-Pierre Cot: le procès international (Brussels, Bruyant, 2009), pp. 131–154. J.-G. Mahinga, ‘Les procedures en prescription de mesures conservatoires devant le Tribunal international du droit de la mer ’ (2004) 9 Annuaire du droit de la mer, pp. 65 –113. F. Orrego Vicuña, ‘ The International Tribunal for the Law of the Sea and Provisional Measures: Settled Issues and Pending Problems ’ (2007) 22 IJMCL, pp. 451–462. S. Rosenne, Provisional Measures in International Law: The International Court of Justice and the International Tribunal for the Law of the Sea (Oxford University Press, 2005). T. Treves, ‘Les mesures conservatoires au Tribunal de droit de la mer et à la Cour internationale de justice: Contribution au dialogue entre cours et tribunaux internationaux’ , in Liber Amicorum Jean-Pierre Cot: le procès international (Brussels, Bruyant, 2009), pp. 341–348.

537 Peaceful Settlement of International Disputes R. Virzo, ‘La

finalité des mesures conservatoires du Tribunal international du droit de la mer , in ’

G. Le Floch (ed.), Les 20 ans du Tribunal international du droit de la mer (Paris, Pedone, 2018), pp. 145– 161. P. Weckel, ‘Les premières applications de l ’article 290 de la Convention sur le droit de la mer relative à la prescription de mesures conservatoires’ (2005) 109 RGDIP, pp. 829 –858.

4 Prompt Release For an overview of the prompt release procedure, the following works are of particular interest. G. Le Floch, ‘ L’ exécution des décisions ordonnant la mainlevée des navires devant le Tribunal international du droit de la mer ’ (2017) 121 RGDIP, pp. 597 –611. T. A. Mensah, ‘The Tribunal and the Prompt Release of Vessels’ (2007) 22 IJMCL , pp. 425–450. Y. Tanaka, ‘Prompt Release in the United Nations Convention on the Law of the Sea: Some Re

flections on the ITLOS Jurisprudence

’ (2004) 51 NILR , pp. 237–271.

S. Trevisanut, ‘Twenty Years of Prompt Release of Vessels: Admissibility, Jurisdiction, and Recent Trends ’ (2017) 48 ODIL, pp. 300 –312. M. White, ‘Prompt Release Cases in ITLOS’ , in T. M. Ndiaye, R. Wolfrum and C. Kojima (eds.), Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas A. Mensah (Leiden, Brill/Nijhoff, 2007), pp. 1025–1052.

5 Advisory Opinion Ki-Jun You, ‘Advisory Opinions of the International Tribunal for the Law of the Sea: Article 138 of the Rules of the Tribunal, Revisited’ (2008) 39 ODIL, pp. 360 –371. M. Lando, ‘The Advisory Jurisdiction of the International Tribunal for the Law of the Sea: Comments on the Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission’ (2016) 29 LJIL, pp. 441 –461. T. M. Ndiaye, ‘ Les avis consultatifs du Tribunal international du droit de la mer’ in Lilian del Castillo (ed.), Law of the Sea, from Grotius to the International Tribunal for the Law of the Sea: Liber Amicorum Judge Hugo Caminos (Leiden, Brill/Nijhoff, 2015), pp. 622 –653. L. B. Sohn, ‘Advisory Opinions by the International Tribunal for the Law of the Sea or its Seabed Disputes Chamber’, in M. H. Nordquist and J. N. Moore (eds.), Ocean Policy: New Institutions, Challenges and Opportunities (The Hague, Brill/Nijhoff, 1999), pp. 61 –72. Y. Tanaka, ‘ Re

flections on the Advisory Jurisdiction of ITLOS as a Full Court: The ITLOS Advisory

Opinion of 2015’ (2015) 14 The Law and Practice of International Courts and Tribunals, pp. 318–339. T. Treves, ‘Advisory Opinions Under the Law of the Sea Convention ’, in M. H. Nordquist and J. N. Moore (eds.), Current Marine Environmental Issues and the International Tribunal for the Law of the Sea (The Hague, Brill/Nijhoff, 2001), pp. 81 –93.

14 Looking Ahead Main Issues The international law of the sea is one of the most dynamic branches of international law. Issues in the law are diverse and the scope of those issues is ever-expanding. In this regard, what is of particular importance is to identify the direction of the future development of the law of the sea. Thus this

final chapter will consider the following issues:

(i) What are the essential limitations to the traditional zonal management approach? (ii) What are the possible models for protecting community interests at sea? (iii) What are the elements that need to be considered in the future development of the international law of the sea?

1 LIMITATIONS OF THE TRADITIONAL FRAMEWORK IN THE LAW OF THE SEA The principal theme of this book is that the international law of the sea should be considered as a dual legal system comprising both the international law of the divided oceans (i.e. paradigm I) and that of our common ocean (i.e. paradigm II).

1

These two

paradigms are not mutually exclusive but complementary. The reconciliation between interests of States remains the principal role of the law of the sea. At the same time, as discussed in Part II of this book, the protection of community interests appears at present to be increasingly important in the law. In this connection, it is becoming apparent that the traditional framework in the law, i.e. paradigm I, cannot adequately afford protection of community interests at sea. Three points in particular merit highlighting. First, an essential limitation of the traditional zonal management approach concerns the divergence between law and nature. As examined in Part I, the contemporary international law of the sea divides the ocean into multiple jurisdictional zones. However, as the spatial extent of each jurisdictional zone is in principle de

fined on the basis of the distance from

the coast, the ecological interactions between marine species as well as the ecological

1

538

See Chapter 1, section 1.3 of this book.

539 Looking Ahead conditions of the physical surroundings are ignored. Accordingly, the traditional approach is

not

always

suitable

for

conservation

of

marine

living

resources

and

biological

diversity. As the ocean is a dynamic natural system, rules of the international law of the sea must take the dynamics of nature into account. Nonetheless, the traditional zonal management approach has not yet suf

ficiently

considered the

fluid

and dynamic nature

of the ocean. The second point relates to the limitation to the principle of reciprocity as a mechanism for securing compliance with rules of the international law of the sea. This principle is deeply rooted in the decentralised nature of the international legal system and it remains a principal leitmotiv for compliance with rules of international law. The principle of reciprocity essentially governs bilateral and contractual relations between States on the basis of symmetry of rights and obligations. However, this principle is seen as not being effective in securing compliance with relevant rules concerning the protection of community interests, inter alia, the regulation of marine pollution, conservation of marine living resources and biological diversity, since treaties in these

fields do not provide reciprocal obligations on the

basis of mutual advantages. It must also be noted that the principle of reciprocity presupposes the formal equality of States and, thus, ignores technological, economic and political differences between States. However, non-compliance by developing States with treaty obligations may result from inadequate technical,

financial

and human resources. It is

unlikely that compliance with treaties by developing States will be secured solely through the principle of reciprocity. In order that these States are able to implement relevant treaties, 2

assistance to developing States is needed.

All in all, one can argue that the traditional

compliance mechanism on the basis of this principle contains an inherent limitation in the protection of community interests.

3

Third, a fundamental limitation in international law, including the law of the sea, is that there is no alternative but to act by means of treaties which can bind only Contracting Parties in order to protect community interests. weakness of the law creates considerable dif

4

As discussed in previous chapters, this

ficulty with regard to, inter alia, protection of

the marine environment, conservation of living resources and biological diversity on the high seas. In light of the limitations in the traditional framework, there will be a need to explore possible mechanisms for protecting community interests in the future development of the law of the sea.

2 3

See Chapter 10, section 6 of this book. B. Simma, ‘Universality of International Law from the Perspective of a Practitioner’ (2009) 20 EJIL, pp. 232–233; A. Paulus, ‘Reciprocity Revisited’, in U. Fastenrach et al. (eds.), From Bilateralism to Community

Interest: Essays in Honour of Judge Bruno Simma (Oxford University Press, 2011), p. 123. See also S. Villalpando, ‘The Legal Dimension of the International Community: How Community Interests Are Protected in International Law’ (2010) 21 EJIL, p. 410. 4

T. Sato, ‘Legitimacy of International Organizations and Their Decisions: Challenges that International Organizations Face in the 21st Century ’ (2009) 37 Hitotsubashi Journal of Law and Politics, p. 15. See also Villalpando, ‘The Legal Dimension of the International Community’, p. 410.

540 Protection of Community Interests at Sea

2 TOWARDS PROTECTION OF COMMUNITY INTERESTS AT SEA: FOUR MODELS Based on the consideration of this book, in a broad perspective, four models for protecting community interests can be identi

fied:

Model I: Protection of community interests through global international organisations in a centralised manner. Model II: Protection of community interests through the individual application of the law of

dédoublement fonctionnel. Model III: Protection of community interests through the institutional application of the law of

dédoublement fonctionnel.

Model IV: Protection of community interests through international adjudication.

The

first model concerns the protection of community interests through an international

organisation in a centralised manner. The best example is the International Seabed Authority (the Authority) governing the Area. As discussed in Chapter 5, all rights in the resources of the Area are vested in mankind as a whole, on whose behalf the Authority shall act.

5

Accordingly, activities in the Area shall be organised, carried out and controlled by the Authority for the bene

fit of mankind as a whole.

6

The jurisdiction of the Authority is limited

to matters provided by the LOSC. Concerning those matters, however, the Authority exercises both legislative and enforcement jurisdiction over all people and objects in the Area in an exclusive manner. Notably, the jurisdiction of the Authority is directly exercisable over natural persons. In summary, common interests of mankind arising from seabed activities in the Area are to be promoted through the Authority in a centralised manner. This model is thought to be an innovation in international law. However, it is dif

ficult to expect

an institution similar to the Authority to develop in other branches of the law of the sea in the near future. The second model concerns the protection of community interests by the individual application of the law of

dédoublement fonctionnel

advocated by Georges Scelle. Under this

model, community interests are to be protected by each State which would assume the role of organ of the international community. The most innovative example may be the port State jurisdiction with regard to the regulation of vessel-source marine pollution under 7

Article 218(1) of the LOSC. As discussed in Chapter 8,

a port State is allowed to exercise

enforcement jurisdiction against foreign ships for vessel-source pollution that takes place

outside

marine spaces under the national jurisdiction of that State by virtue of Article

218 of the LOSC. As a consequence, the port State is entitled to take enforcement action against the vessel even where a violation was committed on the high seas or marine spaces under other States ’ jurisdiction, regardless of direct damage to the port State. It may be said that under Article 218, the port State would assume the role of an organ of the international community

5 7

in

marine

environmental

Articles 136 and 137(2) of the LOSC. See Chapter 8, section 6.4 of this book.

6

protection.

However,

this

model

Articles 149(1) and 153(1) of the LOSC.

contains

some

541 Looking Ahead weaknesses, such as the lack of incentive of States, the lack of coordination and arbitral use of the concept of community interests. Considering that the concept of community interests may be used as an ideology to justify a policy of a State or a particular group of States, ensuring the legitimacy of rules and measures is of central importance in the application of the law of

dédoublement fonctionnel

.

The third model relates to the protection of community interests through the institutional

dédoublement fonctionnel

application of the law of interests

through

international

application of the law of

institutions

and

. This model seeks to protect community arrangements.

While

dédoublement fonctionnel dédoublement fonctionnel

the

(i.e. model III) is more institutionalised

than the individual application of the law of

(i.e. model II), it is

less centralised than model I. The institutional application of the law of

fonctionnel

institutional

seeks to overcome the de

dédoublement

ficiencies of the second model. Under the third model,

community interests are to be protected by cooperation between States through international institutions. The establishment of the high seas MPAs under the OSPAR Convention is a case in point.

8

By creating and managing MPAs in areas beyond national

jurisdiction, Contracting Parties to the OSPAR Convention, along with the supervision through the OSPAR Commission, can be thought to assume the role of an advocate of the international community in the protection of biological diversity on the high seas. As shown in this example, regional institutions and arrangements have a valuable role to play in the institutional application of the law of

dédoublement fonctionnel

.

The fourth model concerns protection of community interests by international courts and tribunals. As international law rests essentially on a decentralised legal system, there is no centralised machinery for determining the breach of obligations concerning the protection of community interests. Accordingly, a dispute relating to community interests, such as conservation of marine species and ecosystems, emerges as a bilateral dispute between States. In this connection, the

locus standi

of not directly injured States in the settlement of

international disputes concerning breaches of obligations is at issue. As shown in the

Whaling in the Antarctic

erga omnes 9

case,

or

erga omnes partes

the jurisprudence of the ICJ

locus standi erga omnes partes

appears to hint in the direction that the Court would accept international disputes concerning breaches of obligations establish its jurisdiction.

10

in relation to , if it can

When an international dispute involving community interests

was submitted to an international court or tribunal, it would be expected to perform a dual function: peaceful settlement of the inter-State dispute and the safeguard of community interests.

In

fact,

ITLOS

has

made

strong

commitments

in

the

protection

of

the

marine environment and conservation of marine living resources by prescribing provisional measures. In addition to the traditional function of the settlement of international disputes,

8 10

See Chapter 9, section 4.3 of this book.

9

See Chapter 7, section 4.3 of this book.

In this connection, it is relevant to recall that the ITLOS Seabed Disputes Chamber, in its Advisory Opinion of 2011, made clear that: ‘Each State Party may also be entitled to claim compensation in light of the

omnes

erga

character of the obligations relating to preservation of the environment of the high seas and in the

Area.’ ITLOS Reports 2011, p. 59, para. 180.

542 Protection of Community Interests at Sea the safeguard of community interests appears to be increasingly important in international adjudication. These four models appear to present prototypes concerning mechanisms for protecting community interests in the law of the sea, even though they need further development. If we wish to protect our common interests for the survival and well-being of future generations, further efforts must be made to develop mechanisms for protecting these interests under the law. In this regard, two points in particular must be noted. The

first point pertains to the interaction between the law of the sea and other branches

of international law. As stressed in Chapter 1, the law of the sea forms part of international law in general. Thus it is important for the international law of the sea to interpret and apply its rules taking account of any relevant rules of international law. In this regard, particular attention must be paid to the cross-fertilisation of multiple branches of international law. As discussed in Chapter 8, for instance, interplay between the law of the sea and international law of the environment is of critical importance in the protection of the marine environment. Furthermore, the regulation of migrant smuggling by sea must be examined from the viewpoints of the law of the sea, international refugee law and international human rights law.

11

In order to deal with a wide range of marine issues,

complex webs of treaties are developing in the law of the sea and related branches of international law. The coexistence of treaties necessitates a systemic outlook.

12

As the ICJ

stated, ‘an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation ’.

13

This is equally true

in the law of the sea. Accordingly, there is a need to take a systemic approach to relevant rules of international law and the law of the sea. In this regard, Article 31(3)(c) of the Vienna Convention on the Law of Treaties can be regarded as a key element of the principle of systemic integration within the international legal system.

14

The second point relates to the importance of inter-temporal dimensions in the law of the sea. Given that no rule, customary or conventional, can remain unaffected by time, the impact of time on the interpretation and application of rules of international law should be an important consideration and the same applies to the law of the sea. In this regard, it is argued that some key concepts, such as sustainable development and the precautionary approach, contain inter-temporal elements.

11 12

15

Further, ecological, economic and political

See Chapter 5, section 2.9 of this book. See also Separate Opinion of Judge Cançado Trindade in Whaling in the Antarctic (Australia v Japan, New Zealand intervening), ICJ Reports 2014, paras. 25– 26.

13

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), ICJ Reports 1971, p. 31, para. 53.

14

Generally on this issue, see P. Merkouris, Article 31(3)(c) VCLT and the Principle of Systemic Integration:

Normative Shadows in Plato’s Cave (Leiden, Brill, 2015); C. McLachlan, ‘The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention’ (2005) 54 ICLQ , pp. 279–320; D. French, ‘Treaty Interpretation and the Incorporation of Extraneous Legal Rules’ (2006) 55 ICLQ , pp. 281–314; U. Linderfalk, ‘Who Are “the Parties”? Article 31, Paragraph 3(c) of the 1969 Vienna Convention and the “Principle of

Systemic Integration” Revisited’ (2008) 55 NILR, pp. 343– 364. See also (2006) Yearbook of the International

Law Commission, vol. II (Part Two), pp. 180 et seq. 15

See Chapter 7, sections 5.1 and 5.3 of this book.

543 Looking Ahead conditions surrounding the oceans may change over time. Marine technology is also constantly developing. Accordingly, there is a need to adapt the existing rules of the law of the sea to new circumstances. Rules of reference which are enshrined in several provisions of the LOSC can be considered as one of the techniques to take account of new developments in the interpretation of relevant rules of the Convention. In appropriate circumstances, with prudence and caution, evolutionary treaty interpretation may be relevant. Furthermore, it is noticeable that rules and measures embodied in multilateral treaties are progressively developing through COP or treaty commissions. The evolution of multilateral treaties through COPs or treaty commissions merits particular attention. Since measures taken by States today may affect the living conditions of future generations, it is of particular importance to incorporate inter-temporal elements in the interpretation and application of relevant rules of the law of the sea. Generally, the protection of community interests for present and future generations should be a signi

ficant

consideration in the

further development of the international law of the sea.

FURTHER READING Y. Tanaka, ‘Protection of Community Interests in International Law: The Case of the Law of the Sea’ (2011) 15

Max Planck Yearbook of United Nations Law

, pp. 329–375.

‘Juridical Insights into the Protection of Community Interests through Provisional Measures:

Re

flections on the ITLOS Jurisprudence

International Law and Jurisprudence

’ (2014) 14

The Global Community Yearbook of

, pp. 249 –273.

‘The Institutional Application of the Law of

Dédoublement Fonctionnel

‘Re

fl ections on

in Response to a Breach of Obligations

A Comparative Analysis of the (2018) 17

in Marine Environmental

GYIL Locus Standi Erga Omnes Partes Whaling in the Antarctic and South China Sea The Law and Practice of International Courts and Tribunals

Protection: A Critical Assessment of Regional Regimes’ (2014) 57

, pp. 143 –179. :

Cases’

, pp. 527 –554.

S. Villalpando, ‘The Legal Dimension of the International Community: How Community Interests Are Protected in International Law’ (2010) 21

EJIL

, pp. 387 –419.

Index

Achille Lauro

incident, 455, 463

marine pollution from seabed activities under national

access to information, regulation of land-based marine

jurisdiction, 388

pollution, 347 air pollution, transboundary air pollution in the Arctic, 389

– 390 –

transboundary air pollution, 389

vessel-source marine pollution, 387 388

–390

Area, the, 216.

aircraft

see also

high seas

common heritage of mankind, 38

assistance to aircraft in danger/distress, 105

aim of, 25

duties during transit passage, 124

Area as, 75, 187

hot pursuit by military aircraft, 202

elements of principle of, 219

non-innocent passage, 109

excluding marine living resources, 285

over

mankind, de

fl ight, 22, 117, 124, 129, 137, 140, 145, 152, 158

–220

finition of, 25 –

freedom of, 105, 188

principle of, 25 26

international straits, 117

rationale for principle of, 217 219

–

finition of, 187

piracy, 199

de

right of archipelagic sea lanes passage, 138

evaluation, 231 232

right of transit passage, 124, 140

exploration and exploitation of

right of visit, 198

–

general obligations, 224

Åland Strait, 123

–

–

alien species, prevention of introduction of, 327, 370 371

fi nition of, 434

–225

obligations of sponsoring States, 225 226

–

applied (resource-orientated) research, de

general considerations, 216 217

archaeological and historical objects, 148

Implementation Agreement.

archipelagic States

see

Agreement (1994)

–

baselines, 133 136

International Seabed Authority.

fi nition of, 131

de

Authority

Implementation

see

International Seabed

–

delimiting internal waters, 73

liability of sponsoring States, 225 226

internal waters, sovereignty over, 96

spatial scope of, 217

–

jurisdiction over archipelagic waters, 136 137

armed security personnel privately contracted for use

–

rights and obligations, 140

against pirates, 461 463

– archipelagic baselines, 133 –136

archipelagic waters, 38, 131 140

atolls de

concept of, 131

finition of, 85

territorial seas, and, 85

fi nition of, 132

de

ballast water

general considerations, 131

– right of archipelagic sea lanes passage, 138– 140 right of innocent passage through, 137– 138 jurisdiction of archipelagic States over, 136 137

rights and obligations of archipelagic States, 140

finition of, 132

baselines, 257

Danish Belts and the Sound, 122, 130

Arctic/marine Arctic environmental protection of the marine Arctic

dumping at sea, regulation of, 376 pollution liability, 380

–

commentary on, 390 391

pollution prevention, 380

–

land-based marine pollution, 385 387

544

introduction of alien species, 349, 370 Baltic Sea

bridge across entrance to, 130

archipelago, de

climate change, 385

control of discharges, 327, 370, 409

protection of marine environment, 339, 344

545

Index

protection of underwater cultural heritage, 181

biological diversity regime, 396 –397

baselines, 53–90

climate change regime, 395

archipelagic baselines, 133 –136

evaluation of regimes, 397

baseline types, 54– 74

general considerations, 394

bays bordered by more than one State, 71– 72 historic bays, 65, 67 –71

marine environmental protection regime, 395–396 reduction of greenhouse gas emissions from shipping,

juridical bays, 63 –67

391 –394

normal baselines, 54

coastal States

ports, 73–74

acquiring historic title to maritime areas, 67

river mouths, 72–73

allowable catch, 285

straight baselines, 56–63

baselines.

conclusions, 90–91 identifying baseline and coastal con

figurations, 53

internal waters, 95 islands.

see

baselines

continental shelf, sovereign rights over, 172–174

see

low-tide elevations

innocent passage, and.

main issues, 53

see under

right of innocent

passage

see internal waters see under EEZ. see territorial

maritime delimitation, 256–258

internal waters.

straight baselines, 56–63

jurisdiction,

Anglo-Norwegian Fisheries

case (1951), 57–59

marine scienti

Article 7 of LOSC, 59 –63

fic research

sea

legality of hydrographic and military surveys in EEZ,

conditions for drawing straight baselines, 61–63

442 –444

criteria for drawing straight baselines, 59 de

see conservation

of marine living resources contiguous zone, jurisdiction over, 147– 149

islands

low-tide elevations.

see

conservation of marine living resources.

marine spaces under national jurisdiction, 437–439

finition of, 56

scienti

fic research installations, 440

– 442

diversity in State practice, 61

maximum sustainable yield, 285

exceptional geographical situations, 62

national jurisdiction.

general considerations, 56

principles of sovereignty and freedom safeguarding

limitations on applicability, 62

see marine

interests, 24 –25

see under

low-tide elevations as basis, 61

security interests.

publicising baselines, 63

special interest of, 283

bays

territorial sea.

baselines, and.

see under

baselines

casualties, 359 –361

classes of bays outside the provisions of LOSC, 71

‘warships’ right of innocent passage, 110

claims evoking protests, 70 concept of, 68

coasts calculating and evaluating lengths and surfaces, 255

finition of, 68

fi guration in maritime delimitation, 251 fication of the law of the sea, 26

con

disputes exempted from compulsory settlement, 71 elements of title to historic bays, 68

finition of, 67

historic waters, concept of, 67 –68 juridical bays, 63 –67

–252

codi

First UN Conference on the Law of the Sea (UNCLOS I), 28, 131

fi cation of International

Hague Conference for the Codi Law, 26 –28

legal concept, 64

Second UN Conference on the Law of the Sea (UNCLOS II), 31

‘vital interest’ of coastal State, 69

biological weapons.

regulation of vessel-source marine pollution, 352– 354 ‘vital interests’ of, 69

historic bays, 65, 67 –71

historic title, de

territorial sea

intervention by coastal States in cases of pollution

classes of bays outside LOSC provisions, 65

de

see

security interests

vessel-source marine pollution.

bays bordered by more than one State, 71–72

criteria for identifying, 65

spaces

see weapons of mass destruction (WMDs)

blockade as self-defence, 209

Third UN Conference.

see

Third UN Conference on the

Law of the Sea (UNCLOS III) collisions, 192

broadcasting from high seas, unauthorised, 200–201

intervention by coastal States in cases of pollution

Castor incident,

right of innocent passage and prevention of, 105

casualties, 359 –361 101

chemical weapons.

see

weapons of mass destruction (WMDs)

civil liability for nuclear damage, 369–370 CLCS.

see Commission on the Limits of the Continental Shelf

climate change

functions, 167 jurisdiction, 167 members, 167

Arctic, 385

procedures to establish outer limits of continental shelf,

impact on oceans ocean acidi

fication, 394

168 –171 –397

reduction of greenhouse gas emissions from shipping, 391 –394 ocean acidi

Commission on the Limits of the Continental Shelf

fication

relationship with international courts and tribunals, 270 –271 submission of disputes, 168 common deposit clause, 264

546

Index

common heritage of mankind.

see –

Area, the

conservation measures undermined by IUU

common ocean, paradigm of, 5 6 compliance

limits of, 312

land-based marine pollution.

see

land-based marine

pollution, international control

see

marine conservation.

obligations of

conservation of marine species

–

conservation of marine biological diversity, 4, 404 430

–318

constructive presence, doctrine of, 205

–

contiguous zone, 146 149

–

coastal State jurisdiction over contiguous zone, 147 149

fic approach, 408

concept of contiguous zone, 146

–

general considerations, 406 407

EEZ, and, 9, 146, 148

need for global legal framework, 408

nature of, 30

regional approach, 407

continental margin, outer edge, 164

species-speci

continental shelf, 145, 161

fic approach, 407 finition of, 404

biological diversity, de

coastal States

global legal frameworks for conservation of marine

jurisdiction, 9, 30

biological diversity

– 174

sovereign rights over the continental shelf, 172

1992 Convention on Biological Diversity.

see

Rio

Commission.

Convention

see

Commission on the Limits of the

Continental Shelf

–

LOSC, 409

concept of, 161 162

finition of, 30

introduction to, 404

de

LOSC

delimitation, 238

conservation in marine spaces beyond national

–

jurisdiction, 411 413

delimitation beyond 200 nautical miles

–

jurisdiction, 409 411

–

methodology, 271 272 relationship between CLCS and international courts

general obligations, 409

and tribunals, 270

main issues, 404

– 271

distance of outer edge of, from baseline (Figures), 10

marine protected areas.

see

marine protected areas

conservation of marine living resources, 281 compliance, ensuring.

–

see

drilling, 174 freedoms of third States, 174

conservation of marine species

conclusions, 319 320

–

superjacent waters, 176 177 high seas, and, 30, 176

–

marine scienti

conservation prior to 1982, 283 284 newcomer States, 283

criteria for determining outer limits beyond

–

unilateral measures, application of, 283

200 nautical miles, 164 167

fi nition of conservation, 282

de

payments concerning exploitation of the continental shelf, 171

–

– 164

introduction to, 281 282

spatial scope of, 162

LOSC, conservation of marine living resources under

submarine cables, 174

fic approach. see species-speci fic

approach to conservation zonal management approach.

– 171

procedures to establish outer limits, 168

depletion of resources, 28, 282 importance of, 281

fic research, 174

outer limits, 43

special interest of coastal States, 283

see

Truman Proclamation.

see

Truman Proclamations

Corn Islands, 80 zonal management

approach to conservation

Cuban missile crisis, US blockade as self-defence, 209

–

customary law, 12 15, 26, 30

LOSC, development after

baselines, 61

ecosystem approach.

bays, 64

see ecosystem approach to

conservation

historic waters, 67

precautionary approach to conservation. precautionary approach

see under

–

binding nature of, 12

fication, 29

codi

LOSC, developments in conservation after, 301 309

EEZ, extent of, 103

main issues, 281

elements of customary law rules, 12 15

special interest of the coastal State, concept of, 283

–

sustainable development, concept of, 301 303 conservation of marine species at-sea inspection of non-Contracting Party vessels,

–

314 316 at-sea inspection of Contracting Parties vessels,

–

313 314

–

entitlements to continental shelf, 269 270

conservation in marine spaces under national

species-speci

–

port inspection of non-Contracting Party vessels, 317

consensus approach to decision making, 34

activity-speci

fl ag States, 311– 312

port inspection of Contracting Party vessels, 316 317

compulsory pilotage, 128

approaches to

fishing,

310

flag State responsibility

–

doctrine of the persistent objector, 15

opinio juris, subjective element of, 61 State practice, objective element of, 13 State practice, uniformity of, 13 subjective element of

opinio juris, 13

time element, 13

flag State jurisdiction, 189, 192, 199 foreign vessels right of entry to port for vessels in distress, 102

547

Index

vessels in distress having right of entry to foreign port, 101 –102

issues as to, 305 large marine ecosystems, 304

general customary law, 12

ficulties in, 19

identifying/interpreting, dif islands, 84 –85

exclusive economic zone (EEZ), 145, 149–161 archaeological and historical objects found within, protection of

local customary law, 12, 44

international cooperation, 181

making of, UN General Assembly’s role, 44

law of salvage, and, 179

maritime delimitation, 238, 242, 245, 247, 269

legal regime, 180

non-binding instruments, and

LOSC and UNESCO Convention in relation, 181

fi rming rules of customary international law, 20

con

LOSC provisions, 177

providing for new rules of customary international law,

prohibition of commercial exploitation, 179

20

underwater archaeology, development of, 177

piracy, 199

UNESCO Convention on the Protection of Underwater

right of innocent passage, 108, 116

Cultural Heritage (2001), 178 –181

right of transit passage, 129

coastal State jurisdiction, 9, 38, 284

special or local customary law, 12

regulation of vessel-source marine pollution, 33

treaties, and, 15– 17

concept of, 149–151 conservation of marine living resources, 285

Daigo Fukurymaru incident, 472

conservation of marine living resources in EEZ

dangerous substances, right of innocent passage of ships carrying, 111– 113

importance of

Danish Belts and the Sound, 122, 130

maximum sustainable yield, 285

individual application, 540

obligations to conserve marine living resources, 284

institutional application, 541

contiguous zone, and.

deep-sea species, 300

assistance under Rio Convention, 415

freedoms of third States, 158 –159

customary international law, and, 12, 15 data on catches, 286

high seas, and, 187 historic rights, 160 –161, 508

land-locked and geographically disadvantaged States

fishing rights of land-locked/geographically disadvantaged States, 486–489

jurisdiction of coastal States over, 155– 158 land-locked/geographically disadvantaged States,

fishing

rights, 486–489

outer limits of continental shelf, establishing, 43 review of law of the sea, and, 32, 35

legal status, 151–152 legality of bunkering in EEZ of third States, 157–158

transfer of marine technology, 490 –491 disputed areas, unilateral exploration and exploitation of natural resources in, 274–275

see peaceful settlement of international disputes see persons in distress

disputes.

divided oceans, paradigm of, 5

legality of hydrographic and military surveys in EEZ, 442 –444 marine environment, protection of, 156 marine scienti

fic research, 157

military activities.

see under military activities

military exercises in, 469 –472

drilling on continental shelf, 174

military surveys, legality of, 442 –444

fi cking, 207

– 209

regulation of vessel-source marine pollution, 156

dumping at sea

residual rights, 159 –160

continental shelf, on, 174

sovereign rights over, 153–155

fi nition of, 327

de

finition of, 179

‘underwater cultural heritage’, de

EEZ, in, 156

Enterprise, The

London Dumping Convention (1972) and Protocol (1996), 374 –376

ocean sequestration and fertilisation.

delimitation of, 238 extent of, 103, 149 –151

conclusions, 491–492

LOSC, 373–374

see under contiguous zone

continental shelf, spatial scope of, 163

developing and newly independent States

drug traf

fi shing in EEZ, 285

lack of review processes, 286

dédoublement fonctionnel, law of

distress.

allowable catch, 285

cost-effectiveness, 228–229 establishment postponed, 224, 232

see ocean

sequestration and fertilisation regional treaties, 376–377 Dupuy, R.-J., 22, 110 economic assistance to developing countries in the Area, 230 economic interests, assistance to ships in order to protect,

operational organ of International Seabed Authority, 224 technology transfer, 229 environmental factors in maritime delimitation, 267 environmental impact assessments, precautionary approach, 342 –343

Erika incident, 101

European Union, ships in distress at sea, 102

ex situ conservation, definition of, 414

100 ecosystem approach to conservation aims, 304

fi nition of, 303

de

First UN Conference on the Law of the Sea (UNCLOS I), 28, 131

fish and fi shing, 22

548

Index

fish and fi shing (cont.)

Code of Conduct for Responsible Fisheries (1995), 20, 44,

anadromous stocks, 298– 299 archipelagic States and traditional

fishing rights, 136

catadromous species, 299–300

302 Fish Stocks Agreement, and, 44 newcomer States and conservation, 283

coastal State laws, violation of, 107

role in

conservation of marine living resources.

see conservation

of marine living resources

fi sheries, 44

force majeure

continuous passage, 105

deep-sea species, 300

right of transit passage, 124

fi nition of illegal fi shing, 310 exclusive fi sheries jurisdiction, 32

force used in hot pursuit, 206

FAO role, 44

freedom, principle of, 22–25, 47, 186, 233

de

ships in distress, 101, 105

fishery zone and maritime delimitation, 238, 244 freedom of, 188 freedom of

de

finition of freedom of the high seas. see under high seas

historical aim of, 22

fi shing, 30, 285

principle of common heritage of mankind in relation, 25

land-locked/geographically disadvantaged States, 486 –489

freedom of navigation, 22, 28, 145, 158 archipelagic waters, in, 138

highly migratory species, 4, 291, 302

freedom of the high seas, and, 189

illegal, unregulated and unreported (IUU)

navigational rights of land-locked States, 486

fi shing, 282 conservation measures undermined by IUU fi shing, 310 –311 de

right of innocent passage, and, 104

finition of IUU fi shing, 310

shipping industry and environmental protection, 95

flags of convenience, by, 195 straddling and shared traditional

see

through straits.

right of innocent passage, violation of, 107 shared and straddling

piracy and, 199

international straits

warships, and, 94, 117

fish stocks, 289 290 fish stocks, 4, 302

fringing reefs, de

–

finition of, 86

fishing rights, 136, 266

general principles of law, 17–18

Fish Stocks Agreement (1995) , UN, 17, 41, 302 at-sea inspection of vessels of Contracting Parties, 313–314

delimitation, 261

FAO Code of Conduct on Responsible Fishing, and, 44

Gidel, Gilbert, 7, 19, 64, 97, 108, 190

inspections, use of force in, 206 port inspection of Contracting Party vessels, 316–317

Grotius, Hugo, 19, 23

Fitzmaurice, Sir Gerald, 148

fi cation of International Law,

flag States

Hague Conference for the Codi

26 –28, 69, 104, 108, 131

conservation of marine species conservation measures undermined by IUU

limits of

fits, 415

genetic resources, fair and equitable sharing of bene

geological and geomorphological factors in maritime

ecosystem approach to conservation, 304

310

finition of, 434

fundamental (pure) research, de

fi shing,

Harvard Law School, 26, 108

flag State responsibility, 312 fl ag States, 311 312

obligations of

finition of, 73

harbour works, de

hazardous and noxious substances nuclear-powered ships/ships carrying dangerous/noxious

–

substances, 111–113

exclusive jurisdiction, 189–193 exceptional measures, 207–210 exceptions to exclusive jurisdiction of

flag States: right

of visit, 198 –202 obligations of

fl ag States, 191

vessels carrying nuclear/noxious substances entering ports, 99 high seas, 186 category of, 38

right of hot pursuit as exception, 202

conclusions, 232–233

theory of territoriality of the ship, 189

conservation of marine living resources, 287 –288

hot pursuit.

see hot pursuit

obligations on States, 287

regulation of vessel-source marine pollution, 351–352

contiguous zone, and, 30

right of visit, 198–202

continental shelf, and, 30, 176

finition of, 29, 187

general considerations, 198–199

de

piracy, 199

exceptional measures carried out on, 207– 210

ships with suspicious nationality, 202

exclusive jurisdiction.

ships without nationality, 201 –202

freedom of the high seas, principle of, 30, 187 –189

see fl ag States

slave trade, 199

free from national jurisdiction, 188

unauthorised broadcasting, 200–201

freedom not absolute, 189

flags of convenience

no genuine link between

flag State and ship, 196

freedom of activities, 188 introduction to, 186–187

problems associated with, 195– 198

main issues, 186

ships with suspicious nationality, 202

marine protected areas.

ships without nationality, 201

spatial scope of, 187

validity of ship’s nationality, 194 Food and Agriculture Organization (FAO)

highly migratory species

see under

fish. see under fish and fi shing

marine protected areas

549

Index

fication, 54, 203, 210 fication of the law of the sea, 29, 33

marine mammals, 291

codi

historic bays. see bays

codi

historic rights in maritime delimitation, 266

Draft Articles on Prevention of Transboundary Harm

fi nition, 266 traditional fishing rights, 266 historic title, defi nition of, 67 de

from Hazardous Activities, 330 Draft Articles on Responsibility of States for Internationally Wrongful Acts, 100

historic waters, concept of, 67– 68 hot pursuit, 147, 172

International Maritime Organization (IMO) archipelagic sea lanes passage, 139 noise. see under noise

cessation of right, 204 constructive presence, doctrine of, 205

fi nition of, 202

de

SUA Convention 2005, 463–467 International Seabed Authority, 39, 220

exception to exclusive jurisdiction, as, 202

‘activities in the Area’, scope of, 220

‘multilateral hot pursuit ’, 204

common heritage of mankind, and, 26

requirements, 202

continental shelf delimitation, 217

right of, 176, 198, 202

jurisdiction, 221–224

use of force, 206

structure of, 220– 221

human life, saving, 100

international straits, 116–131

human rights, law of the sea in relation, 21

bridges across, legality of, 130– 131

human traf

coastal States bordering straits, rights and obligations of,

fi cking

Migrant Smuggling Protocol (2000), 210–212 push-back operations, lawfulness of, 212–216 as slave trade, 200

126 –129 compulsory pilotage, 128 violations of State’s laws/regulations, 126

humanity, considerations of, 21–22, 102

environmental protection of, 128

hydrographic surveys

international straits outside Part III of LOSC, 122 –123

fi nition of, 435

de

international straits under Part III of LOSC, 117

legality in EEZ, 442– 444 marine scienti

fic research, 442

straits to which regime of transit passage applies, –444

118 straits to which right of innocent passage applies,

ice-covered areas. see Arctic/marine Arctic immunity. see under sovereignty Implementation Agreement (1994) cost-effectiveness, 228–229 decision-making, 230–232 general considerations, 227–228 market-orientated approaches, 229–230 economic assistance, 230

financial terms of contracts, 229 obligation to transfer technology, 229 production policies, 229 review conference, 231 indigenous peoples, rights of, 21 information, access to. see access to information

Institut de droit international, 19, 26, 64, 108 internal waters, 38, 95–102 access to ports. see under ports coastal State having sovereignty over, 96 delimitation of, 238 jurisdiction of coastal States over foreign vessels in internal waters, 96– 98 consular conventions on scope of criminal jurisdiction, 97 warships having sovereign immunity, 97 legal status, 96 ships in distress at sea. see ships in distress at sea spatial scope of, 95 territorial sovereignty over, exclusive nature of, 103 International Court of Justice (ICJ), 12, 33, 268– 269 International Labour Organization (ILO), 191 International Law Association (ILA), 26, 64 International Law Commission (ILC), 19 aims, 29

121 legal framework for international straits prior to 1982, 116 –117 non-suspendable innocent passage, 117, 129 –130 right of transit passage. see right of transit passage typology of international straits in LOSC, 117 International Tribunal for the Law of the Sea (ITLOS), 39 advisory proceedings authority to give advisory opinions, 527 ITLOS full court, 528 –530 Seabed Disputes Chamber, 527 –528 cases concerning provisional measures (table), 522 chambers (

figure), 513

incidental proceedings conditions for, 521 intervention, 525 –526 preliminary objections, 517–519 provisional measures, 519–525 judgments, 526– 527 maritime delimitation, 268– 269 members, 510–512 members, current composition (table), 511 procedure applicable law, 515 –516 jurisdiction, 514–515 proceedings, 516 –517 prompt release procedure. see prompt release procedure Seabed Disputes Chamber advisory proceedings, 527– 528 role and jurisdiction, 512–513 special chambers appointments to, 513 chambers of summary procedure, 514 dealing with particular categories of disputes, 514

550

Index

International Tribunal for the Law of the Sea (ITLOS) (cont.)

concept of geographically disadvantaged States, 480

finition of land-locked State, 479

dealing with particular dispute, 514

de

judgments, 513

exploitation of non-living resources in the oceans,

International Whaling Commission (IWC), 292, 294 invasive alien species, prevention of introduction of, 370 –371

489 –490

fishing rights, 486

–489

introduction to, 479–481

inward-bound passage, 105

list of land-locked States (table), 480

islands, 74– 86

main issues, 479

fic research, 490

‘above water at high tide’, 77

marine scienti

application of Article 121(3) of LOSC, 79– 83

navigational rights of land-locked States, 486

–491

‘area of land ’, 76

lateral passage, 105

arti

law of common ocean, paradigm of, 5– 6

ficial islands, 22, 76, 155, 173

freedom to construct, 176, 188

law of divided oceans, paradigm of, 5

see salvage

customary law nature of Article 121, 84 –85

law of salvage.

de

law of the sea, 3–22

fi nition of, 75

–77

fication. see codification of the law of the sea

generation of EEZ, controversies as to, 74

codi

geological elements of, 75 –77

conclusions, 46–47

maritime delimitation, 258–261

development after UNCLOS III, 40–46

enclave situations, 259

de facto amendment of LOSC through meetings of

giving full effect to, 258

parties, 41 –43

giving no effect to, 258

development of law of the sea through international

giving partial effect to, 260

organisations, 43 –46

‘naturally formed ’ creation, 76

reefs.

general considerations, 40

see reefs

implementation agreements, 41

socio-economic elements of, 77–84

functions of, 4

status as

international law of the sea as dual system, 4

‘economic life of their own’ requirement, 81

finition of, 82

‘human habitation’, de

ocean management necessitating international cooperation, 4

‘human habitation’ requirement, 80

spatial distribution of jurisdiction of States, 4

‘natural formation ’ test, 81

human rights in relation, 21

qualitative requirements, 80–82

interaction with other branches of international law, 542

South China Sea arbitration, 80

international law in relation, 3

‘stable’ habitation requirement, 82

limitations of traditional framework, 538

survivability factors, 83

LOSC.

temporal requirements, 82–83

see United Nations Convention on the Law of the

Sea (1982) (LOSC)

‘surrounded by water’, 77

marine spaces.

see marine spaces

models of Jan Mayen, 79

coexistence of paradigms, 6

joint development schemes/zones

law of common ocean, 5 –6

delimitation not effected, 264

law of divided oceans, 5

maritime delimitation lines being established, 264

jus cogens

persistent objectors, and, 15

principle of common heritage of mankind, 25–26

slave trading, 101

principle of freedom, 22– 24 principle of sovereignty, 24 –25

lagoon waters, right of innocent passage, 85

protection of community interests at sea

land-based marine pollution international control and compliance, 344– 347 reporting system, 344–346 supervision by treaty commissions, 346–347 regulation

fication of harmful substances, 339

–341

international control and compliance, 344 –347 limits of global framework, 336 –339 precautionary approach, 342 public participation, 347 regional treaties, development of, 339 land-locked and geographically disadvantaged States, 479 –492 access to sea LOSC regime, 483 pre-LOSC regime, 482 –483

individual application of law of

fonctionnel , by, 540

dédoublement

institutional application of law of

fonctionnel , by, 541

dédoublement

interaction between the law of the sea and other

access to information, 347 identi

principal features (table), 6 principles, 22

branches of international law, 542 international courts and tribunals, by, 541 international organisation, by, 540 temporal factors, importance of, 542

see sources of the international law of the sea Le droit international public de la mer (Gidel), 19 sources of.

liability civil liability for nuclear damage, 369–370 pollution damage.

see pollution damage, liability for

life, assistance to ships in order to save, 100 low-tide elevations, 87–90

551

Index

case law, 88– 90

general considerations, 436–437

fi nition of, 87 identi fication of low-tide elevations, 87 de

research in marine spaces beyond national jurisdiction,

– 88

439 –440

straight baselines, and, 61

research in marine spaces under national jurisdiction, 437 –439

Mare Liberum (Grotius), 23

transfer of technology, 490–491

marine ecosystems

IOC criteria and guidelines, 447–448

climate change, and, 383

LOSC, 445– 447

ecosystem approach to conservation, 303 –306 large marine ecosystems, 304

marine spaces, 7 baselines.

regional approach to conserving, 407 marine mammals

baselines

see also Area, the;

high seas

coastal States, and, 291

maritime delimitation.

conservation, 291

see maritime delimitation

under national jurisdiction, 7, 11, 25, 30

general considerations, 291

marine spaces beyond territorial sovereignty, 9

whaling, 293 –295

marine spaces governed by territorial sovereignty, 9.

see also

conventions and treaties relating to conservation, 293

fi nition of, 291

de

archipelagic waters; contiguous zone;

continental shelf; EEZ; international straits;

highly migratory species, 291

territorial sovereignty

international organisations, 292

scienti

whaling

fic research in, 437

–439

sovereign rights, 145 –183

conventions relating to conservation, 293–295

conclusions, 182–183

International Whaling Commission, 294

contiguous zone, 146 –149

moratorium on whaling, 295

introduction to, 145–146

sanctuaries, 295 scienti

main issues, 145

fic whaling, legality of, 295

–297

oceans, scope of, 7

marine pollution from seabed activities under national

elements of the ocean, 7

jurisdiction, 388

ocean characterised by continuity of marine spaces, 7

fi c research in, 439

marine protected areas (MPAs) broad de

see

beyond national jurisdiction, 7, 11, 25.

scienti

finition of, 423

–425

conclusions, 429–430

UNCLOS I, after, 29.

fi nition of, 418

de

marine spatial planning, 304

high seas, 423 –428

maritime delimitation, 236

limits of, 428–429

case law

finition of, 425

– 428

general trends in, 267– 268

typology, 419– 423

judicial creativity, 268–269

MPAs for conservation of marine biological diversity

case law, contrasting approaches in, 242 –250

(category 2), 420

commentary, 247–250

MPAs protecting marine environment (category 1), 418

corrective-equity approach, 249

MPAs protecting rare or fragile ecosystems (category 2– 2), 420 species-speci

equidistance method, 249 international courts’ approaches (table), 248

fic MPAs (category 2

– 1), 420

phase 1 (1969–1992), 242 –244

treaties establishing category 2–2 MPAs (table), 421 marine scienti

fic research, 4, 22, 432

–449

applied (resource-orientated) research, de

phase 2 (1993–2007), 244 –246 phase 3 (2009–present), 247

finition of, 434

result-orientated equity approach, 248

concept of, 433–435

three-stage approach, 249

conclusions, 448–449

conclusions, 275–277

continental shelf, on, 174

continental shelf beyond 200 nautical miles

distinction from other surveys, 442–444

entitlements to continental shelf, 269 –270

EEZ, in, 157

methodology, 271–272

freedom of, 188

relationship between CLCS and international courts

fundamental (pure) research, 434 importance of, 432– 433 international cooperation in marine scienti

and tribunals, 270– 271

fic research,

444 –445 land-locked/geographically disadvantaged States, 490–491 legality of hydrographic and military surveys in the EEZ, 442 –444 main issues, 432 regulation of, 440–442 regulation under LOSC

see also contiguous zone;

continental shelf; EEZ; territorial sea

general considerations, 418

strict de

–440

typology, 7–11

de

finition of, 237

–238

flexible system for, need for, 236 Geneva Conventions (1958), 238–240 geographical factors baselines, 256 –258

fi guration of coasts, 251

con

–252

geological and geomorphological factors, 261 islands, 258–261 proportionality and, 252–256

552

Index

maritime delimitation (cont.)

regulation at sea, 472–475

third States, 261 –263

nuclear-powered ships, right of innocent passage,

introduction to, 236–237

111 –113

LOSC, 240–241 ocean fertilisation, 377–379

main issues, 236

ocean sequestration, 377

non-geographical factors

oceans, LOSC categorisation, 38

conduct of parties, 265

O ’Connell, D.P., 148, 202

economic factors, 263–265

Oda, S., 148

environmental factors, 267

offshore natural resources.

historic rights, 266

oil tankers

navigational factors, 267

see

natural resources

accidental pollution, and, 32

security interests, 266–267

intervention by coastal States in cases of pollution

predictable system for, need for, 236

casualties, 359 –361

provisional arrangements Articles 74(3) and 83(3) of LOSC, 272–273 unilateral exploration and exploitation of natural

Okinotorishima Island, 78 OSPAR Convention and Rio Convention compared, 418 outward-bound passage, 105

resources in disputed areas, 274 –275 treaty law as to, 238 –241

Pardo, Arvid, 32

typology of, 238 maritime migration, 21

patrimonial sea, 150

maximum sustainable yield, coastal States and, 285

peace and security at sea, 451–476

Mediterranean Sea, marine pollution, 102

conclusions, 476

Meeting of States Parties (SPLOS), 41–43

introduction to, 451–452

migrant smuggling.

main issues, 451

see

fi cking

human traf

migration, prevention of, human rights and, 21

military exercises in EEZ, 469–472

military exercises in EEZ, 469–472

nuclear weapons at sea, 472– 475

military surveys in EEZ, legality of, 442–444

piracy.

mineral deposit clause, 264

unlawful activities at sea.

mining, seabed.

weapons of mass destruction (WMDs).

see also

A rea, the

500 –501

‘multilateral hot pursuit’, 204

no special agreement precluding LOSC compulsory –209

national jurisdiction over marine spaces.

under

see

procedure, 498 –500 territorial

marine spaces

obligation to exchange views, 497– 498 voluntary and compulsory procedures in relation,

natural resources

496 –501

control of offshore natural resources, 32

Commission on the Limits of the Continental Shelf,

unilateral exploration and exploitation in disputed areas, 274 –275

168 –171 compulsory procedures, 39, 148, 160

navigation

historic bays/title disputes exempted, 71

compulsory pilotage, 128 freedom of.

weapons of

no agreed procedure entailing binding decision,

maximum sustainable yield

sovereignty;

see

general considerations, 494

formula, 503

ficking, 207

unlawful activities at sea

basic structure under LOSC

technology development, 32

narcotics traf

see

peaceful settlement of international disputes, 493–535

mineral deposit clause, 264

MSY.

piracy

mass destruction (WMDs)

common deposit clause, 264

Montreux see

see

see

freedom of navigation

navigational factors in maritime delimitation, 267

limitations to, 506 –507

Montreux

formula, 503

multiplicity of forums, 503

navigational rights of land-locked States, 486

optional exceptions to, 507 –510

safety of, 43, 113, 126, 195

sovereign rights to EEZ living resources disputes

noise, ocean noise, 371–373

exempted, 286

non-innocent passage, 105

conclusions, 534–535

North Atlantic Marine Mammal Commission (NAMMCO),

introduction to, 493–494

292

ITLOS.

North Atlantic Salmon Conservation Organization (NASCO), 298

see

International Tribunal for the Law of the Sea

(ITLOS) main issues, 493

Northeast passage, 120

Optional Protocol on compulsory settlement, 29, 31

Northwest passage, 119

Rio Convention, 416

noxious substances, right of innocent passage of ships carrying, 111– 113 nuclear damage, civil liability, 369–370 nuclear weapons. (WMDs)

see also

voluntary conciliation, 501–503 persons in distress, assistance from warships, 111

weapons of mass destruction

pilotage, compulsory, 128 piracy

fi nition of piracy, 452

concept and de

– 456

553

Index

privately contracted armed security personnel, use of,

marine Arctic.

461 –463

see Arctic/marine Arctic

Article 234 of LOSC, 383 –385

seizure of pirates, 456– 460

innocent passage, right to

prosecution of piratical suspects, 21

nuclear-powered ships/ships carrying dangerous/

UN Security Council counter-piracy role, 460 –461

noxious substances, 111 –113

pollution damage, liability for

violation of laws of coastal State, 113

oil pollution, 363

international straits, 126, 128

‘new ’ regime, 364– 367

land-based marine pollution.

‘old ’ regime, 364

see land-based marine

pollution

third tier of compensation, 367

legal framework prior to 1982

other pollution

customary law

civil liability for nuclear damage, 369–370

abuse of rights, 331

HNS Convention (1996), 368 –369

focus on use of oceans, 329

port States

treaty law

jurisdiction, 355–357

regional approach, 331

port State control, 357 –359

regional source-speci

regulation of vessel-source marine pollution, 355–357

source-speci

ports, 73–74

fic approach, 331 fic approach, 331

main issues, 322

access to, 98 –99

finition of, 324

marine pollution, de

bilateral treaties conferring rights of entry for foreign

pollution and prevention of pollution, 156, 174, 322–324

merchant ships, 99

archipelagic States, adoption of laws by, 140

foreign warships requiring diplomatic clearance, 99

development of regulation, 322–324

pollution prevention, 99

fl ags of convenience, and, 195

regulating foreign vessels’ entry, 98

international cooperation, 4

harbour works, 73 jurisdiction of coastal States over foreign vessels.

under territorial sovereignty

international regulations, 4, 126

see

precautionary approach.

see under precautionary

approach

port inspection of Contracting Party vessels, 316–317

pollution prevention, 99

port inspection of non-Contracting Party vessels,

protection of the marine environment in LOSC, 332 –336

317 –318

duty to cooperate, 335 –336

precautionary approach

general and comprehensive legal framework, 332– 333

environmental impact assessments, 342– 343

uniformity of rules, 333 –335

see seabed activities

marine environmental protection, 342

seabed activities.

precautionary approach to conservation, 306–309

shipping industry, and, 95

prejudicial or non-innocent passage, 105

Prestige incident, 101

typology of marine pollution dumping at sea.

principles of international law of the sea

see dumping at sea

general considerations, 324–325

common heritage of mankind, principle of, 25

land-based marine pollution.

freedom, principle of, 22–24

see land-based marine

pollution

sovereignty, principle of, 24–25

pollution from seabed activities.

fi cation/authorisation of passage, 110

prior noti

activities

privately contracted armed security personnel, use against

vessel-source marine pollution.

pirates, 461 –463

see under seabed

see vessel-source

marine pollution

Proliferation Security Initiative, 467–468

protests at sea, freedom of navigation and, 189

prompt release procedure

public participation in regulation of land-based marine

general considerations, 530–531 procedural requirements, 532–533

pollution, 347 push-back operations against migrants, lawfulness of,

reasonable bond, 533 –534

212 –216

substantive requirements, 531 –532 proportionality, maritime delimitation, 252–256 protection of the marine environment, 322 conclusions, 398–399 depletion of resources.

see under conservation of marine

living resources dumping at sea.

see dumping at sea

EEZ and coastal States, 156 environmental factors in maritime delimitation, 267 environmental hazards from ships in distress, 101 EU Directive, 102 safety of life, 102 freedom of navigation, and, 95 ice-covered areas

Quitasueño, status as island, 79 reciprocity, principle of, 5, 99 reefs, 85– 86 de

finition of, 85

fringing reefs, 86 refugees, boat, 21

fisheries organisations. see under fi sh and fishing. see also individual organisations

regional

reporting systems under Rio Convention, 344 Reuter, Paul, 16 right of innocent passage, 27, 104–107 archipelagic waters, 137 –138 coastal States’ obligations as to, 116

554

Index

right of innocent passage (cont.)

Article 121(3) of LOSC

coastal States’ rights as to, 113– 115

commentary, 83 –84

violation of, 107

interpretation, 79 –83

violation of laws of coastal State, 114

de

finition of, 77

collisions, prevention of, 105

general considerations, 77 –79

dangerous substances, ships carrying, 111 –113

sub-category of islands, as, 77

foreign nuclear-powered ships, 111–113 salvage, law of, protection of underwater cultural heritage,

freedom of navigation as basis, 104

179

internal waters, 96

fi c research installations, 440

scienti

international straits, 116–131

marine pollution from seabed activities in the Area,

lagoon waters, 85

381 –383

lateral passage, 105

marine pollution from seabed activities under national

nature of, 104

jurisdiction, 379–381

non-suspendable innocent passage, 117, 129 –130 not applicable to internal waters, 64, 96

mining.

31

noxious substances, ships carrying, 111–113

security at sea.

nuclear-powered ships, 111–113

prejudicial/non-innocent passage, 105

fication and prior authorisation, 110

rules on manner of innocent passage, 105

maritime delimitation, 266– 267 military activities.

conservation of, 284, 289

transit passage, compared to, 124

de

treaty law, 109 –110

see under warships

finition of, 172

Selden, John, 23 self-defence on the high seas, 209 –210

right of transit passage, 123–126 customary law character of right of transit passage, 129

sequestration, ocean.

ships in distress at sea, 99–102

ships’ duties, 124

concept of ships in distress, 99 –100

innocent passage, compared to, 124 rights and obligations of coastal States bordering straits,

restrictive interpretation, 100 determining a distress situation, 99

Rio Convention limitation of provisions to areas under State ’s national

‘distress phase’, 99

entry to foreign ports under customary international law,

outline of, 413 assistance to developing countries, 415 compliance and dispute settlement, 416 conservation of biological diversity, 414

fi ts, 415

fair and equitable sharing of bene

general rules of international environmental law, 413 procedural rules to minimise adverse impacts on biological diversity, 414 relationship with other conventions, 416

fied language in provisions, use of, 417

quali

reinforcement by regional treaties, 417

rocks

finition of

economic interests, 100

OSPAR Convention compared, 418

Rockall, 78

burden of proof to establish distress, 101 de

jurisdiction, 417

catadromous species, 300

criteria, 99 plea of distress, 100

126 –129 violating coastal State’s laws, 126

anadromous stocks, 298

ocean sequestration and

Seraphim de Freitas, Justo, 23

aircraft duties, 124

rivers

see

fertilisation

duties during transit passage

zonal management approach, 417

see military activities

vital interests of States, 69 sedentary species

straight baselines, and, 57

river mouths, 72–73

see under territorial

sovereignty

violation of coastal State laws, 107

conservation, 414

peace and security at sea

coastal States, territorial sovereignty.

prejudicial activities, 106, 109

ex situ

see

security interests

outward-bound passage, 105

warships.

see mining, seabed

Second UN Conference on the Law of the Sea (UNCLOS II),

exception to rule, 96

prior noti

–442

seabed activities

inward-bound passage, 105

102 environmental hazards from, 101 exemption from rules regulating marine pollution, 101

force majeure, 101

humanitarian considerations, 102 immunity, 101

jus cogens, activities

contrary to, 101

marine pollution, 101 right of innocent passage, and, 105 rights of, 101 –102 saving of human life, 100 sent back out to sea, 102 warships assisting, 111 ships/shipping.

see also collisions; high seas; ships in

distress at sea; submarines; vessel-source marine pollution; warships carrying nuclear/noxious substances into ports, 99 distress, in.

see

ships in distress at sea

flag States. see fl ag States; fl ags of convenience

555

Index

flags of convenience, problems as to, 195

–198

limits of, 300–301

see marine mammals

ships with suspicious nationality, 202

marine mammals.

ships without nationality, 201 –202

shared and straddling

validity of ship’s nationality, 194 foreign vessels and ports.

see under ports see under territorial

foreign vessels in internal waters. sovereignty

–290

Strait of Gibraltar, 123 Straits of Magellan, 123 Straits of Malacca and Singapore, 121, 127

gas emissions from shipping, reduction of, 391–394 nationality, 193–195

SUA Convention (2005), 463– 467 geographical scope, 463 –464

‘genuine link’ between State and ship, 194

jurisdiction, 465–467

limitations on grant of, 193

offences, 464

validity of, 194

see oil tankers

oil tankers.

fish stocks, 289

SPLOS (Meeting of States Parties), 41–43

prompt release procedure.

ship-boarding procedures, 464–465

see prompt release procedure

submarine cables, 22, 136, 145, 158 freedom to lay

safety, 191

continental shelf, on, 176

slavery, prohibition of, 98 sovereign immunity, 97

freedom of the high seas and, 188 submarines, 117

territoriality of the ship, theory of, 190

archipelagic sea lanes passage, 140

warships.

right of innocent passage, 105, 109, 129, 137

see warships

slavery/slave trade, 199

fi cking as, 200

human traf

prohibition of, 98 smuggling of migrants.

see human traf ficking

sources of the international law of the sea, 11–22 formal sources, 11 –18 customary law.

see customary law

sources of law enumerated in Article 38(1) ICJ Statute, 11

see treaties

treaties.

right of transit passage, 124 sustainable use/sustainable development de

finition of, 301

–303

ecosystem goods and services, 304 inclusion within non-binding documents, 302 inclusion within treaties, 302 Report of World Commission on Environment and Development, 301– 303

technology transfer to developing countries in the Area, 229

general principles of law, 17–18

Tenyu Maru, 205

material sources, 18– 22

territorial sea, 102–116

judicial decisions and the writings of publicists, 18–19

10-mile rule, 15, 64

non-binding instruments, 19

3-mile rule, 27, 30

unilateral acts and considerations of humanity, 20 –21

12-mile standard, 30, 103, 117, 151

South China Sea arbitration baselines, 135

see baselines

breadth of, 27, 30, 39, 53

exclusion of future arbitral procedures, 500

finition of, 67 historic title , definition of, 266

‘historic bay’, de ‘

baselines.

’

measurement of, 54 measuring, and, 64, 85, 102 cannon-shot rule, 27

historic rights within EEZ, 160, 508

category of, 38

marine features: legal status as islands, 76, 80, 83, 90–91,

coastal States’ rights to, 28

131

criminal/civil jurisdiction over foreign vessels in

sovereignty

territorial sea, 114

acquiring historic title to maritime areas, 67 limited spatial jurisdiction, 10, 154, 173

regulation of vessel-source marine pollution, 352 –354

see right of innocent passage

principle of sovereignty, 24–25

innocent passage.

sovereign rights, 9, 145.

legal status, 102–104

see also contiguous zone;

continental shelf; EEZ territorial sovereignty.

see territorial sovereignty

warships’ sovereign immunity, 111

fi c approach to conservation

species-speci

anadromous stocks, 298– 299 bilateral treaties, 299 conservation and management of, 298 examples/nature of, 298

fishing of, 298

regional organisations, 298 regional treaties, 299 catadromous species, 299–300

marine scienti

fic research, 437

right of passage.

transit passage territorial sovereignty, 28, 94–142 archipelagic waters, 137 coastal States ’ rights to territorial sea.

see under territorial

sea conclusions, 140–142 elements of, 9 exclusive nature of territorial sovereignty and internal waters, 71, 103 internal waters.

see internal waters

EEZ, harvesting and management in, 300

main issues, 94

examples/nature of, 299

marine spaces governed by, 9

highly migratory species, 291

–439

see right of innocent passage; right of

nature of, 9, 284

556

Index

territorial sovereignty (cont.)

United Nations Convention on the Law of the Sea (1982)

shipping industry and environmental protection, 95

(LOSC), 17

spatial jurisdiction, 9

amendment, 40–43

spatial jurisdiction, as, 9

Area, the, 19

territorial sea.

baselines and related issues.

warships.

see territorial sea

see warships

see baselines

comprehensiveness, 38

territoriality of the ship, theory of, 190

considerations of humanity, 21–22

third States and maritime delimitation, 261–263

customary law, 17

Third UN Conference on the Law of the Sea (UNCLOS III)

Fish Stocks Agreement.

adoption of LOSC, 36–37 features of UNCLOS III, 33– 34

Implementation Agreement.

long duration of Conference, 34

interpretation/interrelationship with other treaties,

universality of participants, 33

17, 38

general considerations leading to review of Geneva Conventions, 32 –33

marine biological diversity, conservation of.

fic research, international cooperation in,

444 –445

outline of, 37–40 general considerations, 37 –38 integrity of LOSC, 39

procedures of UNCLOS III, 34–36

principal features, 38 –40

consensus procedure, 34

principle of the common heritage of mankind.

group approach, 35

see

common heritage of mankind

informal meetings, 36

UNDOALOS (UN Division for Ocean Affairs and the Law of

‘package deal’ approach, 35

the Sea), 55

single text approach, 36

list of international organisations, 292

UNCLOS III established, 32

United Nations Environment Programme (UNEP), 292

three-mile rule, 27, 30

UNESCO Convention on the Protection of Underwater

title to historic waters, 67

Cultural Heritage (2001), 178 –181

Torrey Canyon incident, 32

unlawful activities at sea

total allowable catch

Proliferation Security Initiative, 467 –468

see SUA Convention (2005)

coastal States, and, 285

SUA Convention (2005).

EEZ, in, 285

UN interceptions at sea, 468– 469

traf

see under

conservation of marine biological diversity

see under islands

marine scienti

see Implementation

Agreement (1994)

size of task, 34

islands, and.

see Fish Stocks Agreement

(1995)

ficking

see drug traffi cking humans. see human traffi cking transboundary air pollution. see air pollution transit passage. see right of transit passage

use of force in hot pursuit, 206

drugs.

treaties, 15–17

fication of rules of law governing, 17

codi

customary law, and, 15–17

fi nition, 15

Vattel, Emer de, 19, 104 vessels.

see ships/shipping

vessel-source marine pollution, 387–388 accidental vessel-source pollution, 32 ballast water, discharge of.

see under ballast water see under alien species

introduction of alien species. LOSC

de

interrelationship/coordination between treaties, 17

regulation by coastal States, 352 –354 regulation by

Truman Proclamations

fl ag States, 351

–352

regulation by port States, 355–357

Proclamation on Fisheries, 29 Proclamation on the Continental Shelf, 21, 29, 161,

noise, harmful effects of.

see under noise

regulation

163

intervention by coastal States in cases of pollution

Turkish Straits, 122

casualties, 359 –361 invasive alien species, regulation of.

United Nations (UN)

MARPOL, 348–351

acts contrary to, 188 right of innocent passage, 105 conferences on the law of the sea.

pollution emergencies at sea, 361– 363

see under codifi cation

of the law of the sea Division for Ocean Affairs and the Law of the Sea (UNDOALOS), 55

flying of UN flag, 190 General Assembly ’s role in developing law of the sea, 44 interceptions at sea to prevent WMD proliferation, 468 –469

port State control, 357–359 ships in distress, 101 ‘vital interests ’ of coastal States, 69

warships foreign warships requiring diplomatic clearance, 99 freedom of navigation, and, 94, 117 hot pursuit, 202 right of archipelagic sea lanes passage, 138

non-binding instruments, 19 resolutions and

see under alien

species

Charter, 20, 209

opinio juris, 14

right of innocent passage, 107–109 assisting persons in distress, 111

557

Index

see

customary law, 108

SUA Convention (2005).

international straits, 117

UN interceptions at sea, 468– 469

SUA Convention (2005)

non-innocent passage, 109

Welwood, William, 23

non-suspendable innocent passage, 117

World Commission on Environment and Development,

prior noti

fication and prior authorisation, 110

301

State practice, 110– 111 zonal management approach to conservation, 4, 284–289

territorial sea, 109

coastal State ’s jurisdiction and obligations, 284

treaty law, 109 violation of laws of coastal States, 110

see under

conservation of marine living resources in the high seas,

right of visit, 198

287 –288

sovereign immunity, 97, 111 weapons of mass destruction (WMDs).

conservation of marine living resources in EEZ. EEZ

right of transit passage, 124, 138

see also nuclear

weapons Proliferation Security Initiative, 467– 468

general considerations, 284–285 limits of, 288–289 Rio Convention, 417