United Nations Convention on the Law of the Sea: A Commentary 9781472561688, 9781849461924, 9781782252399

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Foreword The edition of this new Commentary on the United Nations Convention on the Law of the Sea is as timely as it will be welcome to both academics and practitioners working in the fields of the law of the sea and oceans governance. After more than 35 years since the adoption of the Convention, there is an urgent need for an updated evaluation of its provisions and of the practice that has emerged regarding its implementation. The conclusion of the 1982 United Nations Convention on the Law of the Sea was a milestone achievement on the part of the international community of States. Their negotiations at the Third United Nations Conference on the Law of the Sea resulted in a regime for the governance of the oceans which was unprecedented in its scope and comprehensiveness. Quite rightly, the Convention is therefore being called a ‘Constitution for the oceans’. Nevertheless, the Convention cannot and has never been intended to provide an answer to every issue arising in connection with the use of the oceans and their governance. In effect, it is a framework treaty which has proved to be a flexible instrument serving as a solid foundation for the further progressive development of a legal regime for the oceans. The Convention is a ‘living’ instrument and is subject to an ongoing process of change and adaptation to new challenges. Such development is being achieved through negotiation of new instruments supplementing the regime established by the Convention as well as through interpretive implementation of the Convention. This has been demonstrated by the conclusion of two highly important implementing agreements, namely the 1994 Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1992 and the 1995 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. This process may well continue in the future, as evidenced by resolution 69/292 adopted by the General Assembly of the United Nations on 19 June 2015 and concerning the development of ‘an internationally legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction’. Progressive development of the legal regime established by the Convention is, however, not limited to the adoption of new legal instruments. It is also accomplished through interpretive implementation of the Convention. Such development may take the form of State practice developing a uniform approach to the implementation of specific provisions of the Convention acquiring general recognition. It may also be fostered by the practice of international institutions competent to administer parts of the Convention’s regime and by the jurisprudence of international courts and tribunals entrusted under the Convention to settle disputes concerning its interpretation or implementation. Over the years, the three institutions established by the Convention, namely the International Seabed Authority, the International Tribunal for the Law of the Sea and the Commission on the Limits of the Continental Shelf, through their activities and, in the case of the International Tribunal for the Law of the Sea, through its jurisprudence, have made a substantial contribution, within the areas of their competence, to the progressive development of the international regime established by the Convention. The role of international judicial bodies is of particular relevance with regard to the many provisions of the Convention which are the result of compromises found during negotiation and which, as a consequence, leave room for ambiguities and differences of understanding. Those provisions in particular require evolutionary interpretation and this role is performed, on many occasions, by international courts and tribunals when adjudicating individual contentious cases or when rendering advisory opinions. V

Foreword The wealth of developments which have occurred since the entry into force of the Convention and which have shaped the practice relating to its implementation require careful and in-depth analysis and evaluation. This is the task and challenge on which the new Commentary is focusing. It will thereby complement the already existing Commentary edited by the Center for Oceans Law and Policy of the University of Virginia. Both works will be relevant for academics and practitioners alike. The Virginia Commentary, with its focus on the legislative history of the Convention, will continue to provide insights into the development of the Convention’s provisions while the new Commentary puts an emphasis on analysing each provision of the Convention and its Annexes, element by element. It will give particular consideration to the practice regarding the implementation of the Convention as developed by States and international organizations as well as to the jurisprudence of international courts and tribunals. Thus, the new Commentary will serve all those who are called upon to contribute to the implementation and interpretation of the Convention and to ensure proper compliance with its provisions. It will also offer valuable information to those involved in ongoing or future negotiations on new instruments supplementing the Convention. The preparation of the new Commentary is also welcomed because we need to ensure proper compliance with the provisions of the Convention in the light of new developments which, on the one hand, enhance our ability to use ocean resources but, on the other, require particular attention to be paid to the preservation and protection of the marine environment. Let me therefore express my appreciation to the editors and contributors as well as to the publisher for their efforts in preparing and publishing this Commentary, which will establish itself as one of the standard works on the international law of the sea. November 2016

VI

Judge Vladimir Golitsyn President of the International Tribunal for the Law of the Sea

Preface When I first discussed the idea of launching a new commentary on the 1982 United Nations Convention on the Law of the Sea (UNCLOS) with participants of the Fourth J.H.W. Verzijl Memorial Symposium that took place at Utrecht University in November 2008, I had a general idea of the challenges that would come along with the process of editing such a volume, but certainly did not expect the project to take almost ten years. The reasons why it took such a long time for the book to finally become a reality are manifold. It is per se not a simple task to coordinate a scientific book project involving more than 60 authors from many different regions in the world. More importantly, the establishment of national research councils and the like, which require scientists and researchers to give account of their past activities on an annual basis, delays, or even endangers, every research project that, as is the case with Commentaries such as the present one, does not fall within the categories identified by these institutions as representing ‘proper’ research. It seems to me that the stereotyped approach on which these schemes are based ultimately results in compromising freedom of science rather than creating incentives for innovative research. Notwithstanding these challenges, it is my sincere wish to use this opportunity to stress that it has been a privilege and pleasure to work together with such a distinguished group of legal practitioners, scholars and researchers in the context of the present book project. I am also indebted to the publishing houses C.H. Beck, Hart and Nomos, and in particular to Dr. Wilhelm Warth. As responsible person for the commentary series, Dr. Warth has been my main point of contact at C.H. Beck over all these years. He encouraged me to keep going with the project at times when I doubted that it would ever become a reality, and granted me all flexibility and support that an editor needs when conducting a research project of this magnitude. Together with Thomas Klich, he also kindly offered to compile the table of cases, the list of abbreviations and the index. Furthermore, I would like to cordially thank the German Research Foundation (Deutsche Forschungsgemeinschaft – DFG) for generously supporting the book project by way of a research grant. Last but not least, I owe a great debt of gratitude to my assistant editors. Amber Maggio, Eike Blitza and Oliver Daum (in order of degree of involvement) were, amongst many other issues, in charge of developing, adapting and applying the editorial guidelines, of communicating with the authors, but also of assisting me in safeguarding the scientific quality of the individual contributions to this Commentary. Without their input, perseverance and commitment, which went far beyond what can generally be expected from research associates that are additionally engaged in writing their PhD theses, this book would have not come into existence. They were supported at different stages of the project by a number of student researchers, namely Felix Bode, Sara Cordes, Hannah Jentgens, Lara-Christin Meinert, Anika Natus and Martin Weiler. Killian O’Brien, former research associate at the Walther-Schu¨cking Institute for International Law at Kiel University, also deserves special mention for his assistance and input in the initial phase of the project prior to my move to Trier University. The chapters written by the following authors solely reflect their private opinions and not the positions of the institutions for which they work: Dorota Englender, Gwenaelle Le Gurun, Doris Ko¨nig, Killian O’Brien, Daniel Owen, Kai Tru¨mpler, Kishor Uprety and Ingo Winkelmann. The UNCLOS, which has convincingly been labelled the ‘constitution for the oceans’ (Tommy T.B. Koh), is the most comprehensive and certainly one of the most important and influential international treaties ever concluded. One of the central aims of this Commentary is to show that its terms offer much more than one would initially expect, and that it thus constitutes a living instrument (without denying the need to further develop the requirements codified therein) capable of addressing challenges that were not anticipated at the time VII

Preface of its negotiation and adoption. I sincerely hope that this book will prove to be a useful tool for both researchers and practitioners in accessing the Convention, understanding the meaning of its provisions, and applying it in a lawful manner in practice. Trier, November 2016

VIII

Alexander Proelss

Authors Richard A Barnes, Professor, School of Law and Politics, University of Hull

2, 17–32; 51–54 together with Massarella

Kristin Bartenstein, Professeure titulaire, Faculte´ de droit, Universite´ Laval

211, 215–217, 219, 221–222, 266–269

Felix Beck, Research Associate, Faculty of Law, University of Freiburg

143–148 together with Vo¨neky

Vasco Becker-Weinberg, Professor, Faculty of Law, Universidade NOVA de Lisboa

223–233

Marco Benatar, Research Fellow, Max Planck Institute Luxembourg for Procedural Law

305 together with Franckx; Annex IX together with Cambou, Franckx, Janssens, Mampaey, Scotcher and Tran

Eike Blitza, Trainee Solicitor, Higher Regional Court, Berlin

204–206

Laura Boone, Former Research Associate, Department of International and European Law, Vrije Universiteit Brussel; Business Consultant with Duval Union Consulting

234 together with Franckx

Ciara´n Burke, Professor, Friedrich-Schiller-University Jena

186–191; Annex VII

Richard Caddell, Dr., Netherlands Institute for the Law of the Sea and Utrecht University School of Law

Annex VIII

Dorothe´e Cambou, Dr., Research Associate, Centre for International and European Law, Vrije Universiteit Brussel and Arctic Center, University of Lapland

Annex IX together with Benatar, Franckx, Janssens, Mampaey, Scotcher and Tran

Hong Chang, Dr., Associate Professor, South China Sea Institute, Xiamen University

264–265

Aldo Chircop, Professor of Law and Canada Research Chair in Maritime Law and Policy, Schulich School of Law, Dalhousie University, Canada

82

Detlef Czybulka, Professor, Faculty of Law, University of Rostock

192–196, 237

James G. Devaney, Lecturer, School of Law, University of Glasgow

263, 304

Erik van Doorn, Research Associate, Walther Schu¨cking Institute for International Law, Kiel University

161–165

Dorota Jadwiga Englender, DLR GTP, European Space Agency, Paris

79

Pablo Ferrara, Dr., Estudio O’Farrell Abogados, Buenos Aires

170–185, 293–296

XIX

Authors Erik Franckx, Professor, Department of International and European Law, Vrije Universiteit Brussel

247; 234 together with Boone; 305 together with Benatar; Annex IX together with Benatar, Cambou, Janssens, Mampaey, Scotcher and Tran

Douglas Guilfoyle, Professor, Faculty of Laws, Monash University

86–112; 113–115 together with Miles

Shotaro Hamamoto, Professor, Graduate School of Law, Kyoto University

220, 270–277; Annex V

James Harrison, Dr., School of Law, University of Edinburgh

61–65 together with Morgera; 66–73; 202– 203;

Anja Ho¨felmeier, Research Associate, Faculty of Law, University of Freiburg

136–142 together with Vo¨neky

Sookyeon Huh, Associate Professor, Graduate School of Public Policy, University of Tokyo

245–246; 248–257 together with Nishimoto

Aline Jaeckel, Dr., Macquarie Law School, Macquarie University, Sydney

166–169

Karen Janssens, Research Associate, Department of International and European Law, Vrije Universiteit Brussel

Annex IX together with Benatar, Cambou, Franckx, Mampaey, Scotcher and Tran

Bing Bing Jia, Professor, Law School, Tsinghua University, Beijing

34–45

Daniel-Erasmus Khan, Professor, University of the Bundeswehr, Munich

33

Doris Ko¨nig, Professor, Bucerius Law School, Hamburg, Judge of the Federal Constitutional Court, Karlsruhe

213–214, 218

Rainer Lagoni, Professor, Faculty of Law, University of Hamburg

Preamble

Gwe´nae¨lle Le Gurun, Dr., Legal Officer, International Seabed Authority

Annex III

Sotirios-Ioannis Lekkas, DPhil Law, Faculty of Law, University of Oxford

Annex VI 21, 23–30, 32–34 together with Staker

Amber Rose Maggio, Dr., Research Associate, Department of Law, Trier University

77–78, 80–81, 85, 124–132 together with Uprety

Helena Mampaey, Former Research Associate, Department of International and European Law, Vrije Universiteit Brussel; University of Hasselt, Education Department

Annex IX together with Benatar, Cambou, Franckx, Janssens, Scotcher and Tran

Till Markus, Dr., Lecturer, Department of Law, Bremen University

46

Carmino Massarella, Dr., School of Law and Politics, University of Hull

51–54 together with Barnes

Nele Matz-Lu¨ck, Professor, Walther Schu¨cking Institute for International Law, Kiel University

238–241, 311

XX

Authors Cameron Miles, Barrister, 3 Verulam Buildings, London

113–115 together with Guilfoyle

Elisa Morgera, Professor, Strathclyde Centre for Environmental Law and Governance, University of Strathclyde, Glasgow

61–65 together with Harrison

Kentaro Nishimoto, Associate Professor, School of Law, Tohoku University, Sendai

245–246; 248–257 together with Huh

Killian O’Brien, Training Officer, European Asylum Support Office, Malta

300–302

Daniel Owen, Barrister, Fenners Chambers, Cambridge

Annex I

Irini Papanicolopulu, Associate Professor, School of Law, Universita` degli Studi di Milano-Bicocca

242–244, 258–262, 278

Lindsay Parson, Dr., Maritime Zone Solutions Limited, Romsey

76, Annex II to the Final Act

Alexander Proelss, Professor, Department of Law, Trier University

55–60, 306–307

Rosemary Rayfuse, Professor, Faculty of Law, University of New South Wales, Sydney

116–120

Valentin J. Schatz, Research Associate, Department of Law, Trier University

156–160

Nkeiru Scotcher, Dr., Former Research Associate, Department of International and European Law, Vrije Universiteit Brussel; Parker Bullen LLP

Annex IX together with Benatar, Cambou, Franckx, Janssens, Mampaey and Tran

Tullio Scovazzi, Professor, Dipartimento di Giurisprudenza, Universita` degli Studi di Milano-Bicocca

133–135, 149, 303

Andrew Serdy, Professor, School of Law, University of Southampton

279–285, 297–299, Annex II

Jule Siegfried, Research Associate, Department of Law, Trier University

150–155

Christopher Staker, Dr., Barrister, 39 Essex Chambers, London

Annex VI, 20, 22, 31; Annex VI 21, 23–30, 32–34 together with Lekkas

Tim Stephens, Professor, Sydney Law School, University of Sydney

197–201, 235–236

Clive R. Symmons, Professor, School of Law, Trinity College Dublin

9–16, 47–50

Stefan Talmon, Professor, Faculty of Law and Political Economy, University of Bonn

121

Christian J. Tams, Professor of International Law, School of Law, University of Glasgow

263 and 304 together with Devaney, 308– 310, 317–320

Yoshifumi Tanaka, Professor, Faculty of Law, University of Copenhagen

1, 74–75, 83–84

XXI

Authors Thuy Van Tran, Research Associate, Department of International and European Law, Vrije Universiteit Brussel

Annex IX together with Benatar, Cambou, Franckx, Janssens, Mampaey and Scotcher

Tullio Treves, Emeritus Professor, State University of Milano, Faculty of Law; Senior International Law Consultant, Curtis, Mallet-Prevost, Colt & Mosle LLP

286–292

Kai Tru¨mpler, Dr., Federal Maritime and Hydrographic Agency, Hamburg

3–8

Kishor Uprety, Dr., Senior Lawyer, World Bank, Washington

124–132 together with Maggio

Silja Vo¨neky, Professor, Faculty of Law, University of Freiburg

136–142 together with Ho¨felmeier; 143–148 together with Beck

Patrick H.P. Vrancken, South African Research Chair in the Law of the Sea, Nelson Mandela University Port Elisabeth

312–316; Annex IV, Annex VI 1–19, 35–41

Frank Wacht, Institute of Environmental and Technology Law, Trier University

207–210, 212

Ingo Winkelmann, Dr., Ambassador of the Federal Republic of Germany in Costa Rica

122–123

XXII

Abbreviations A&E .................................................. ABE-LOS ......................................... ABNJ ................................................ AC ..................................................... ACCOBAMS .................................. ACP .................................................. AFDI ................................................. AIDCP ............................................. AJEL ................................................. AJIL .................................................. AnDrMer ......................................... AnnIDI ............................................ AoA .................................................. Art. .................................................... Asian JIL .......................................... ASIL .................................................. ASR ................................................... ATBA ............................................... AVR .................................................. AWPPA ........................................... AWZ ................................................. BARCON ......................................... BAT .................................................. BBNJ Working Group .................. BDGVR ............................................ BEP ................................................... BfN .................................................... BOEMRE ......................................... BSFP ................................................. BWM ................................................ BYBIL ............................................... CBD .................................................. CCAMLR ......................................... CCAS ................................................ CCBSP .............................................. CCS ................................................... CCSBT ............................................. CDEM .............................................. cf. ....................................................... CFC ................................................... Ch. ..................................................... CHS .................................................. CITES ............................................... CJEU .................................................

A Ammunition and Explosives Advisory Body of Experts on the Law of the Sea Areas Beyond National Jurisdiction Program Appeal Cases Agreement on the Conservation of Cetaneas of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area African, Caribbean and Pacific Annuaire Français der Droit International Agreement on the International Dolphin Conservation Program American Journal of Environmental Law American Journal of International Law Annuaire du Droit de la Mer Annuaire de l’Institut de Droit International Agreement on Agriculture Article Asian Journal of International Law American Society of International Law Articles on the Responsibility of States for Internationally Wrongful Acts Area To Be Avoided Archiv des Vo¨lkerrechts Arctic Waters Pollution Prevention Act Ausschließliche Wirtschaftszone B Barcelona Convention for the Protection of the Mediterranean Seas against Pollution Best Available Technology 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 Berichte der Deutschen Gesellschaft fu¨r Vo¨lkerrecht Best Environmental Practices Bundesamt fu¨r Naturschutz Bureau of Ocean Energy Management, Regulation and Enforcement Boating Safety and Facilities Program International Convention for the Control and Management of Ships’ Ballast Water and Sediments British Year Book of International Law C Convention on Biological Diversity Convention on the Conservation of Antarctic Marine Living Resources Convention for the Conservation of Arctic Seals Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea Carbon Capture and Storage Commission for the Conservation of Southern Bluefin Tuna Construction, Design, Equipment and Manning confer Chlorofluorocarbon Chapter Convention on the High Seas Convention on International Trade in Endangered Species of Wild Flora and Fauna Court of Justice of the European Union

XXIII

Abbreviations CJICL ................................................ CLCS ................................................ CMATS Treaty ............................... CMS ..................................................

Colum J. Transnat’l L. .................. COP .................................................. CPD .................................................. CPUCH ............................................ CSC ................................................... CTS ................................................... CTSCZ ............................................. CWILJ .............................................. CWRJIL ........................................... CYIL .................................................

Cambridge Journal of International and Comparative Law Commission on the Limits of the Continental Shelf Treaty on Certain Maritime Arrangements in the Timor Sea Convention on the Conservation of Migratory Species of Wild Animals Convention on the International Regulations for Preventing Collisions at Sea Columbia Journal of Transnational Law Conference of the Parties Common Depth Point Convention on the Protection of the Underwater Cultural Heritage Convention on the Continental Shelf Canada Treaty Series Convention on the Territorial Sea and the Contiguous Zone California Western International Law Journal Case Western Reserve Journal of International Law Canadian Yearbook of International Law

DOALOS ......................................... Doc. .................................................. Dods. ................................................

D Division for Ocean Affairs and the Law of the Sea Document Dodson’s Admiralty Report

COLREGs ........................................

EC ..................................................... ECAFE ............................................. ECDIS .............................................. ECJ .................................................... ECOSOC ......................................... ECR ................................................... ECS ................................................... ECtHR .............................................. ed./eds. ............................................. edn. ................................................... EEZ ................................................... EFZ ................................................... EIAs .................................................. EMSA ............................................... ENC .................................................. EnvtlPolyL ....................................... et seq. ............................................... EU ..................................................... EUNAVFOR ................................... EurUP ..............................................

E exempli gratia (for example) All England Law Reports Scientific Criteria for Identifying Ecologically and Biologically Significant Marine Areas in Need of Protection in Open-Ocean Waters and Deep Sea Habitats Electronic Chart/European Community Economic Commission for Asia and the Far East Electronic Chart Display and Information System European Court of Justice UN Economic and Social Council European Court Reports Extended Continental Shelf European Court of Human Rights editor/editors edition Exclusive Economic Zone Exclusive Fishing Zone Environmental Impact Assessments European Maritime Safety Agency Electronic Navigational Chart Environmental Policy and Law et sequentia (and that which follows) European Union European Union-led Naval Force Zeitschrift fu¨r Europa¨isches Umwelt- und Planungsrecht

F.Supp. ............................................. FAO .................................................. Florida JIL ....................................... FOCP ................................................

F Federal Supplement, 2nd Series – U.S. Federal Case Food and Agricultural Organization of the United Nations Florida Journal of International Law Foreign Office Confidential Print

GA ..................................................... GA. J. Int’ l& Comp. L. ................ GAIRS .............................................. GAOR .............................................. GATT ............................................... GDS ..................................................

G General Assembly Georgia Journal of International and Comparative Law Generally Accepted International Rules and Standards UN General Assembly Official Records General Agreement on Tariffs and Trade Geographically Disadvantaged States

e. g. .................................................... E.R. .................................................... EBSAs ...............................................

XXIV

Abbreviations GEF ................................................... GESAMP ......................................... GFCM .............................................. GIELR .............................................. GPA .................................................. GYIL .................................................

The Global Environment Facility Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection General Fisheries Commission for the Mediterranean Georgetown International Environmental Law Review Global Programme of Action German Yearbook of International Law

HELCOM ........................................ HMS ................................................. HNS .................................................. HSSC ................................................ HVDC ..............................................

H Baltic Marine Environment Protection Commission Highly Migratory Species Hazardous and Noxious Substances Harmonized System of Survey and Certification High Voltage Direct Current

IUU ................................................... IWC .................................................. IWGMP ...........................................

I International Atomic Energy Agency International Association of Geodesy Institute for Advanced Sustainable Studies Inter-American Tropical Tuna Commission ibidem (in that very place) International Boundaries Research Unit International Civil Aviation Organization Inter-American Tropical Tuna Commission International Commission for the Conservation of Atlantic Tunas International Council for the Exploration of the Seas International Court of Justice International Comparative Law Quarterly International and Comparative Law Review Informal Composite Negotiating Text International Coastal and Ocean Organization International Convention for the Regulation of Whaling Institute for Sustainable Development and International Relations International Hydrographic Bureau International Hydrographic Organization International Journal of Estuarine and Coastal Law International Journal of Marine and Coastal Law International Law Association International Law Commission International Legal Materials International Law Reports Intergovernmental Maritime Consultative Organization International Maritime Law Institute International Maritime Organization International Criminal Law Review Intergovernmental Oceanographic Commission International Organizations Law Review Indian Ocean Tuna Commission Intergovernmental Panel on Climate Change International Seabed Authority International Seabed Authority Informal Single Negotiating Text International Tribunal for the Law of the Sea International Telecommunication Union International Union for Conservation of Nature and Natural Resources illegal, unreported and unregulated International Whaling Commission Intergovernmental Working Group on Marine Pollution

JARPA .............................................. J. Transnat’l L. & Pol’y ................

J Japan’s Southern Ocean Whaling Program Journal of Transnational Law and Policy

IAEA ................................................. IAG ................................................... IASS .................................................. IATTC .............................................. ibid. ................................................... IBRU ................................................. ICAO ................................................ ICCAT ............................................. ICCAT ............................................. ICES .................................................. ICJ ..................................................... ICLQ ................................................. ICLR ................................................. ICNT ................................................ ICOA ................................................ ICRW ............................................... IDDRI .............................................. IHB ................................................... IHO ................................................... IJECL ................................................ IJMCL .............................................. ILA .................................................... ILC .................................................... ILM ................................................... ILR .................................................... IMCO ............................................... IMLI ................................................. IMO .................................................. Int Crim L Rev ............................... IOC ................................................... IOLR ................................................. IOTC ................................................ IPCC ................................................. ISA .................................................... ISBA ................................................. ISNT ................................................. ITLOS ............................................... ITU ................................................... IUCN ................................................

XXV

Abbreviations JDI ..................................................... JIL ...................................................... JMOA ............................................... JSpace L ...........................................

Journal du Droit International Journal of International Law Journal of Maritime and Ocean Affairs Journal of Space Law

LAT ................................................... LDC .................................................. LJIL ................................................... LL ...................................................... LLGDS; LL/GDS ............................ Lloyd’s Rep. .................................... LLS .................................................... LN ..................................................... LN Docs. .......................................... LNTS ................................................ LOS [Convention] ......................... LOSB ................................................ LOSIC .............................................. LR ...................................................... LTE ...................................................

L Lowest Astronomical Tide Least Developed Countries Leiden Journal of International Law Land-locked Land-locked and Geographically Disadvantaged States Lloyds Law Reports Land-locked State League of Nations League of Nations Documents League of Nations Treaties Series United Nations Convention on the Law of the Sea Law of the Sea Bulletins Law of the Sea Information Circular Law Review Low-tide Elevation

m ....................................................... MARPOL ......................................... MCA Convention ..........................

McGill Int’l J. Sust. Dev. & Pol’y Melb.J.Int’l L. .................................. MFN ................................................. MN .................................................... MoU ................................................. MPA ................................................. MPEPIL ........................................... MPYUNL ........................................ MSR .................................................. MSY .................................................. NAFO ............................................... NAMMCO ...................................... NASCO ............................................ NEAFC ............................................ NG .................................................... NGO ................................................. NIEO ................................................ NILR ................................................. NM .................................................... ¨ R ........................................... NordO NORDREG ..................................... Notre Dame L.Rev. ....................... NPAFC ............................................ NPFC ................................................ NSCR ................................................ NSHC ............................................... NuR .................................................. NYIL .................................................

XXVI

M metre(s) International Convention for the Prevention of Marine Pollution from Ships Convention in the Determination of the Minimal Conditions for Access and Exploitation of Marine Resources within the Maritime Areas under Jurisdiction of the Member States of the Sub-Regional Fisheries Convention (MCA Convention) Mc Gill Journal on Sustainable Development and Policy Melbourne Journal of International Law Most Favoured Nation Margin Number Memorandum of Understanding Marine Protected Area Max Planck Encyclopedia of Public International Law Max Planck Yearbook on United Nations Law Marine Scientific Research Maximum Sustainable Yield N Northwest Atlantic Fisheries Organization North Atlantic Marine Mammal Commission North Atlantic Salmon Conservation Organization North-East Atlantic Fisheries Commission Negotiating Group Non-governmental Organization New International Economic Order Netherlands International Law Review Nautical Mile Zeitschrift fu¨r o¨ffentliches Recht in Norddeutschland Northern Canada Vessel Traffic Services Zone Regulations Notre Dame Law Review Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean North Pacific Fisheries Commission Netherlands Institute for the Study of Crime and Law Enforcement North Sea Hydrographic Commission Natur und Recht Netherlands Yearbook of International Law

Abbreviations NYUJILP ......................................... NZJEL ..............................................

NYU Journal of International Law and Politics New Zealand Journal of Environmental Law

OSY ...................................................

O Ocean and Costal Law Journal Organization of Communication and Transit Ocean Data Acquisition Systems Ocean Development and International Law Operational Experts Group International Convention for the Prevention of Pollution of the Sea by Oil Official Journal Convention on Oil Pollution Preparedness, Response and Cooperation Convention for the Protection of the Marine Environment of the North-East Atlantic Optimum Sustainable Yield

PCA .................................................. PCASP .............................................. PCIJ .................................................. PD ..................................................... PICES ............................................... PLOS ................................................ POPs ................................................. Prepcom ........................................... PROFISH ......................................... PSC ................................................... PSI ..................................................... PSSA .................................................

P Permanent Court of Arbitration Privately Contracted Armed Security Personnel Permanent Court of International Justice Practice Directions concerning Civil Appeals in the Court of Appeal North Pacific Marine Science Organisation Public Library of Science Persistent Organic Pollutants Preparatory Commission World Bank Global Program on Fisheries Port State Control Proliferation Security Initiative Particularly Sensitive Sea Areas

OCLJ ................................................. OCT .................................................. ODAS ............................................... ODIL ................................................ OEG .................................................. OILPOL ........................................... OJ ...................................................... OPPRC ............................................. OSPAR Convention ......................

Res. .................................................... RFMO .............................................. RGDIP ............................................. RIAA ................................................ RINA ................................................ RMP .................................................. RMS .................................................. RSNT ................................................ RSP ...................................................

R Rabels Zeitschrift fu¨r ausla¨ndisches und internationales Privatrecht Recueil des Cours de l’Acade´mie de Droit International de La Haye Recueil des Cours de l’Acade´mie de Droit International de La Haye Review of European, Comparative & International Environmental Law Resolution Regional Fisheries Management Organization Revue Ge´ne´rale de Droit International Public Reports of International Arbitral Awards Registro Italiano Navale Revised Management Procedure Revised Management Scheme Revised Single Negotiating Text Regional Seas Programme

s. ........................................................ S.Ct. .................................................. San Diego LRev .............................. SBSTTA ........................................... SDC .................................................. SEAFO ............................................. SENC ................................................ Sess. ................................................... SFS .................................................... SIMPLY ........................................... SIOFA .............................................. SIPRI ................................................ SOLAS .............................................. SPRFMO ..........................................

S section Decisions of the US Supreme Court San Diego Law Review Subsidiary Body on Scientific, Technical and Technological Advice Seabed Dispute Chambers South-East Atlantic Fisheries Organisation System Electronic Navigational Chart Session Straddling Fish Stocks Scandinavian Institute’s Maritime and Petroleum Law Yearbook South Indian Ocean Fisheries Agreement Stockholm International Peace Research Institute International Convention for the Safety of Life at Sea 1974 South Pacific Regional Fisheries Management Organisation

RabelsZ ............................................ RCADI ............................................. RdC ................................................... RECIEL ............................................

XXVII

Abbreviations SRFC ................................................. StanfordELJ ..................................... STWC ...............................................

Suppl. ................................................ SYBIL ...............................................

West African Sub-Regional Fisheries Commission Stanford Environmental Law Journal International Convention on Standards of Training, Certification and Watchkeeping for Seafarers Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation Supplement Singapore Yearbook of International Law

TAC .................................................. Tex. Int’l L.J. ................................... TS ...................................................... TSS ....................................................

T Total Allowable Catch Texas International Law Journal Treaties Series Traffic Separation Schemes

SUA ..................................................

U. Miami L. Rev. ........................... UKTS ................................................ UN .................................................... UN DOALOS ................................. UNC ................................................. UNCED ........................................... UNCHE ........................................... UNCLOS ......................................... UNCLOS I ...................................... UNCLOS II ..................................... UNCLOS III ................................... UNCTAD ........................................ UNDP .............................................. UNEP ............................................... UNESCO ......................................... UNESCO (IOC) ............................. UNFSA .............................................

UNGA .............................................. UNICPOLOS .................................. UNIDO ............................................ UNTS ...............................................

U University of Miami Law Review United Kingdom Treaty Series United Nations United Nations Division of Ocean Affairs and Law of the Sea Charter of the United Nations United Nations Conference on Environment and Development United Nations Conference on the Human Environment United Nations Convention on the Law of the Sea First United Nations Conference on the Law of the Sea Second United Nations Conference on the Law of the Sea Third United Nations Conference on the Law of the Sea United Nations Conference on Trade and Development United Nations Development Programme United Nations Environment Programme United Nations Educational, Scientific and Cultural Organization Intergovernmental Oceanographic Commission of the United Nations Educational, Scientific and Cultural Organization Agreement for the Implementation of the Provisions of the United Nations Convention of the Law of the Sea Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (United Nation Fish Stocks Agreement) United Nations General Assembly United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea United Nations Industrial Development Organization United Nations Treaties Series

VJIL .................................................. vol. .................................................... VPD ..................................................

V Vienna Convention on Consular Relations Vienna Convention on the Law of Treaties Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations Virginia Journal of International Law volume Vessel Protection Detachments

WCPFC ............................................ WGBOSV ........................................ WILJ ................................................. WIPO ............................................... WMD ............................................... WMO ............................................... WTO ................................................

W Western and Central Pacific Fisheries Commission Working Group on Ballast and Other Ship Vectors Wisconsin International Law Journal World Intellectual Property Organization Weapons of Mass Destruction World Meteorological Organization World Trade Organization

VCCR ............................................... VCLT ................................................ VCLTIO ...........................................

XXVIII

Abbreviations YaleJIL .............................................. YIEL .................................................. YIL ....................................................

Y Yale Journal of International Law Yearbook of International Environmental Law Yearbook of International Law

Zao¨RV .............................................. ZUR ..................................................

Z Zeitschrift fu¨r ausla¨ndisches o¨ffentliches Recht und Vo¨lkerrecht Zeitschrift fu¨r Umweltrecht

XXIX

Cases International Court of Justice Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Request for Advisory Opinion), Advisory Opinion of 22 July 2010, ICJ Reports (2010), 403

191 8; Annex III 17 19; Annex VI 21 19

Admissibility of Hearings of Petitioners by the Committee on South West Africa, Advisory Opinion of 1 June 1956, ICJ Reports (1956), 23

305 19

Aegean Sea Continental Shelf Case (Greece v. Turkey), Request for the Indication of Interim Measures of Protection, Order of 11 September 1976, ICJ Reports (1976), 3

74 35, 36; 83 21; 246 7; Annex VI 28 12, 29

Aegean Sea Continental Shelf Case (Greece v. Turkey) Judgment of 19 December 1978, ICJ Reports (1978), 3

7 16; 81 8; 241 7; Annex VI 28 3

Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Compensation Owed by the Democratic Republic of the Congo to the Republic of Guinea, Judgment of 19 June 2012, ICJ Reports (2012), 324

Annex VI 34 1

Ambatielos (Greece v. United Kingdom), Preliminary Objections, Judgment of 1 July 1952, ICJ Reports (1952), 28

306 5

Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment of 18 August 1972, ICJ Reports (1972), 46

156 10

Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal, Advisory Opinion of 12 July 1973, ICJ Reports (1973), 166

Annex VI 34 2

Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), Judgment of 10 December 1985, ICJ Reports (1985), 192

Annex VI 33 27; Annex VII 12 6

Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia and Herzegovina), Judgment of 3 February 2003, ICJ Reports (2003), 7

Annex VI 33 27

Application for Revision of the Judgment of 11 September 1992 in the Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras Nicaragua intervening), Judgment of 18 December 2003, ICJ Reports (2003), 392

Annex VI 33 27

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26 February 2007, ICJ Reports (2007), 43

Annex VI 33 11

Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, ICJ Reports (2011), 70

283 2, 8, 10

Arbitral Award of 31 July 1986 (Guinea-Bissau v. Senegal), Judgment of 12 November 1991, ICJ Reports (1991), 53, 75

9 18; 15 11; 57 6; 74 40

Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment of 14 February 2002, ICJ Reports (2002), 3

105 9; 295 5

XXXI

Cases Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment of 31 March 2004, ICJ Reports (2004), 12

295 5

Barcelona Traction, Light and Power Company, Limited (New Application: 1962) (Belgium v. Spain), Preliminary Objections, Judgment of 24 July 1964, ICJ Reports (1964), 6

Annex VI 33 1

Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Merits, Judgment of 5 February 1970, ICJ Reports (1970), 3

91 5, 8; 116 14; 117, 35

Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v. Costa Rica), (2015), available at: http://www.icj-cij.org/ docket/files/150/18848.pdf

198 3

Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, ICJ Reports (1962), 151

156 9; 158 13

Certain Questions on Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment of 4 June 2008, ICJ Reports (2008), 177

Annex VI 21 13; 24 7

Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion of 3 March 1950, ICJ Reports (1950), 4

170 8

Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter), Advisory Opinion of 28 May 1948, ICJ Reports (1948), 57

157 14

Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization, Advisory Opinion of 8 June 1960, ICJ Reports (1960), 150

156 10

Continental Shelf (Libyan Arab Jamahiriya v. Malta), Application to Intervene, Judgment of 21 March 1984, ICJ Reports (1984), 3

Annex VI 27 8

Continental Shelf (Libyan Arab Jamahiriya v. Malta), Judgment of 3 June 1985, ICJ Reports (1985), 13

55 3; 56 2; 57 6; 74 11; 77 3; 83 1, 7; 85 9; 122 16; Annex VIII 1 1

Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), Application by Malta for Permission to Intervene, Judgment of 14 April 1981, ICJ Reports (1981), 3

Annex VI 27 8

Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), Judgment of 24 February 1982, ICJ Reports (1982), 18

10 6, 22, 32; 55 3; 56 9; 57 1; 74 4; 77 3; 83 1, 7; 5 9; Annex VI 31 11

Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States of America), Appointment of Expert, Order of 30 March 1984, ICJ Reports (1984), 165

Annex VI 27 8

Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States of America), Judgment of 12 October 1982, ICJ Reports (1984), 246

57 5; 74 11; 83, 8; 310

Delimitation of Maritime Boundary between Guinea-Bissau and Senegal, 31 July 1989, ICJ Reports (1991), 53

74 40; 83 14, 25

Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion of 29 April 1999, ICJ Reports (1999), 62

170 9

XXXII

Cases Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment of 13 July 2009, ICJ Reports (2009), 213

225 10

Elettronica Sicula S.P.A. (ELSI) (United States of America v. Italy), Judgment of 20 July 1989, ICJ Reports 1989, 15

295 4

Fisheries Case (United Kingdom v. Norway), Judgment of 18 December 1951, ICJ Reports (1951), 116

2 15; 3 3; 4 2; 7 3, 4, 5, 6, 16, 19, 35, 38, 40, 41, 43, 55; 10 3, 6; 15 35; 16 21; 35 4; 37 8; 46 9, 11; 47 4; 52 4; 71 2; Annex II 1 1; Annex II 7 6

Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Provisional Measures, Order of 17 August 1972, ICJ Reports (1972), 12, 16, 30

290 10; Annex VI 28 28

Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Jurisdiction of the Court, Judgment of 2 February 1973, ICJ Report (1973), 49

Annex VI 28 3

Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits, Judgment of 25 July 1974, ICJ Report (1974), 175

55 8; 71 2; Annex VI 28 3

Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment of 4 December 1998, ICJ Reports (1998), 432

117 14; 118 23; 119 19; Annex IX 7

Fisheries Jurisdiction (United Kingdom of Great Britain and Northern Ireland v. Iceland), Order of 18 August 1972, ICJ Reports (1972), 181

Annex VI 28 21

Fisheries Jurisdiction (United Kingdom of Great Britain and Northern Ireland v. Iceland), Judgment of 25 July 1974, ICJ Reports (1974), 3

55 5, 8; 56 24, 25; 57 2; 61 7, 8; 62 12; 116 2; 117 9; 118 1; 290 10; Annex III 9 27; Annex III 16 9; Annex VI 28 3

Frontier Dispute (Burkina Faso v. Mali), Judgment of 22 December 1986, ICJ Reports (1986), 554

59 6

Gabcˇ´ıkovo-Nagymaros Project (Hungary v. Slovakia), Order of 5 February 1997, ICJ Reports (1997), 3

Annex VI 27 8

Gabcˇ´ıkovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997, ICJ Reports (1997), 7

118 16; 198 11; 204 4, 22; 206 4; 221 3; 225 15; 226 8; 228 26; 229 11; 232 10

Haya de la Torre (Colombia v. Peru), Judgment of 13 June 1951, ICJ Reports (1951), 71

Annex VI 32 2

Interhandel (Switzerland v. United States), Preliminary Objections, Judgment of 31 March 1959, ICJ Reports (1959), 6

295 4

International Status of South West Africa, Advisory Opinion of 11 July 1950, ICJ Reports (1950), 128

121 51; 305 19

Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (First Phase), Advisory Opinion of 30 March 1950, ICJ Reports (1950), 65

279 6

Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion of 20 December 1980, ICJ Reports (1980), 73

147 14; 157 13; Annex IX 6 3

XXXIII

Cases Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Application to Intervene, Order of 4 July 2011, ICJ Reports (2011), 494

Annex VI 27 8; 31 2

Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment of 3 February 2012, ICJ Reports (2012), 99

236 16

Kasikili Sedudu Island (Botswana v. Namibia), Judgment of 13 December 1999, ICJ, Reports (1999), 1045

320 5

Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Judgment of 11 June 1998, ICJ Reports (1998), 275

157 12; 300 5; 306 8; 310 18

Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria; Equatorial Guinea intervening), Application by Equatorial Guinea for Permission to Intervene, Order of 21 October 1999, ICJ Reports (1999), 1029

Annex VI 27 8; 31 14

Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria;), Judgment of 10 October 2002, ICJ Reports (2002), 303

15 11, 12, 18; 74 12; 83 15

Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras), Application by Nicaragua for Permission to Intervene, Judgment of 13 September 1990, ICJ Reports (1990), 92

Annex VI 27 8; 31 11; 33 18

Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras; Nicaragua intervening), Judgment of 11 September 1992, ICJ Reports (1992), 351

10 24, 26, 30, 31, 32; Annex VI 31 2; 33 27

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Orders 1–3 of 26 January 1971, ICJ Reports (1971), 3

Annex VI 27 8

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Order of 29 January 1971, ICJ Reports (1971), 12

Annex VI 26 13

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, ICJ Reports (1971), 16

137 11; 305 19, 25

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Order of 30 January 2004, ICJ Reports (2004), 3

Annex VI 27 8

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports (1996), 226

231 3, 4; 139 11; Annex VI 29 8; Annex VII 8 5

Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion of 8 July 1996, ICJ Reports (1996), 66

156 5; 157 6

Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment of 16 March 2001, ICJ Reports (2001), 40

5 25; 7 9, 16, 24; 9 1; 15 4, 11, 12, 14, 23, 27, 29, 37, 41; 46 7; 74 12; 83 7; 121 6

Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), Judgment of 14 June 1993, ICJ Reports (1993), 38

74 10; 83 15; 121 6, 33, 51

XXXIV

Cases Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment of 3 February 2009, ICJ Reports (2009), 61

9 13; 10 30; 11 4, 5, 7, 8, 9, 10, 12, 14, 16, 20, 22; 15 17, 21, 23, 29, 39, 40; 16 21; 47 53; 57 8; 74 22; 83 16; 121 29; Annex IX 7 9

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Declaration of Intervention of the Republic of El Salvador, Order of 4 October 1984, ICJ Reports (1984), 215

Annex VI 32 2

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, Judgement of 26 November 1984, ICJ Reports (1984), 392

302 5

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, ICJ Reports (1986), 14

8 14, 17; 17 10; 18 6; 25 9; 58 1; 131 11; 211 22; 290 10; 302 5; 306 5; Annex VI 27 10; 28 3

Monetary Gold Taken from Rome in 1943 (Italy v. France, United Kingdom of Great Britain and Northern Ireland and United States of America), Preliminary Objection, Judgment of 15 June 1954, ICJ Reports (1954), 19

Annex VI 21 13; 24 5

North Sea Continental Shelf Cases (Federal Republic of Germany v. Netherlands; Federal Republic of Germany v. Denmark), Judgment of 20 February 1969, ICJ Reports (1969), 3

7 16; 15 2, 9, 39; 55 3; 57 6; 74 16; 76 8, 25; 77 23; 79 20; 83 7; 97 5; 98 5; 118 21; 283 11; 298 3; 303 10; 306 5

Nottebohm (Liechtenstein v. Guatemala), Preliminary Objection, Judgment of 18 November 1953, ICJ Reports (1953), 111

Annex VI 28 2, 10, 24

Nottebohm (Liechtenstein v. Guatemala), Merits, Judgment of 6 April 1955, ICJ Reports (1955), 4

91 8, 10; 116 14; 117 5; Annex VI 28 10

Nuclear Tests (Australia v. France), Provisional Measures, Order of 22 June 1973, ICJ Reports (1973), 135

222; Annex VI 28 4

Nuclear Tests (Australia v. France), Judgment of 20 December 1974, ICJ Reports (1974), 253, 457

88 7; 194 19; 196 2; 222 5; 300 10; Annex VI 28 3

Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Application Instituting Proceedings or 24 April 2013, available at: http:// www.icj-cij.org/docket/index.php?p1=3&p2=3&k=f3&case=153&code=bch&p3=0

125 36

Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment of 6 November 2003, ICJ Reports (2003), 161

Annex VI 24 13; Annex IX 6 6

Passage through the Great Belt (Finland v. Denmark), Provisional Measures, Order of 29 July 1991, ICJ Reports (1991), 12

24 7

Passage through the Great Belt (Finland v. Denmark), Order of 10 September 1992, ICJ Reports (1992), 348

35 14, 16; 45 16

XXXV

Cases Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010, ICJ Reports (2010), 14, 18

67 9; 118 120; 139 11; 194 20; 198 4, 13; 204 20; 206 1, 9, 14; 213 13; 225 12; 242 14; 263 15; 289 1; Annex VII 6 6

Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia) (pending)

83 18

Questions Related to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment of 20 July 2012, ICJ Reports (2012), 422

113 10

Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, ICJ Reports (1949), 174

157 6; 170 8; 176 4; 304 13

Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case, Order of 22 September 1995, ICJ Reports (1995), 288

Annex VI 32 2

Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections (Nigeria v. Cameroon), Judgment of 25 March 1999, ICJ Reports (1999), 31

Annex VI 33; 34

Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colombia v. Peru), Judgment of 27 November 1950, ICJ Reports (1950), 395

Annex VI 33 21; Annex VII 12 8

Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion of 28 May 1951, ICJ Reports (1951), 15

305 2; 319 9

Right of Passage over Indian Territory (Portugal v. India), Preliminary Objections, Judgment of 26 November 1957, ICJ Reports (1957), 125

125 33; 298 32; 319 9

Right of Passage over Indian Territory (Portugal v. India), Merits, Judgment of 12 April 1960, ICJ Reports (1960), 6

125 45; 192 21

Rights of Nationals of the United States of America in Morocco (France v. United States of America), Judgment of 27th August 1952, ICJ Reports (1952), 176, 192

126 11

South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment of 21 December 1962, ICJ Reports (1962), 319

279 6; Annex VI 21 8

South West Africa Cases (Ethiopia/South Africa; Liberia v. South Africa), Order of 18 March 1965, ICJ Reports (1965), 3

Annex VI 27 8

South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Judgment of 18 July 1966, ICJ Reports (1966), 6

300 13; 305 19; Annex VI 29 8; Annex VII 8 5

Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia), Application by the Philippines for Permission to Intervene, Judgment of 23 October 2001, ICJ Reports (2001), 575

Annex VI 27 8; 31 11

Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia), Judgment of 17 December 2002, ICJ Reports (2002), 625

46 19; 241 8

XXXVI

Cases Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia v. Singapore), Judgment of 23 May 2008, ICJ Report (2008), 12

15 16; 43 3

Temple of Preah Vihear (Cambodia v. Thailand), Judgment of 15 June 1962, ICJ Reports (1962), 6

Annex VI 26 13

Territorial and Maritime Dispute (Nicaragua v. Colombia), Application by Honduras for Permission to Intervene, Judgment of 4 May 2011, ICJ Reports (2011), 348

Annex VI 31 11

Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment of 8 October 2007, ICJ Reports (2007), 659

9 10; 15 2, 9, 11, 27, 29, 35, 3; 74 21; 83 7; 298 15; Annex IX 7 9

Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment of 19 November 2012, ICJ Reports (2012), 624

15 1; 83 18; 121 6

Territorial Dispute (Libyan Arab Jamahiriya v. Chad), Judgment of 3 February 1994, ICJ Reports (1994), 6

279 7

The ‘Corfu Channel’ Case (United Kingdom of Great Britain and Northern Ireland v. Albania), Preliminary Objection, Judgment of 25 March 1948, ICJ Reports (1947–1948), 15

Annex VI 21 13; Annex VI 24 5

The ‘Corfu Channel’ Case (United Kingdom of Great Britain and Northern Ireland v. Albania), Order of 17 December 1948, ICJ Reports (1948), 124

Annex VI 27 8

The ‘Corfu Channel’ Case (United Kingdom of Great Britain and Northern Ireland v. Albania), Merits, Judgment of 9 April 1949, ICJ Reports (1949), 4

8 28; 17 5; 19 3, 11; 24 3, 10; 35 4; 37 1; 38 11, 20; 194 19; 198 2; 225 15; 233 5

The ‘Corfu Channel’ Case (Assessment of Amount of Compensation), (United Kingdom of Great Britain and Northern Ireland v. Albania), Judgment of 15 December 1949, ICJ Reports (1949), 244

263 19; Annex VI 28 3

The ‘La Grand’ Case (Germany v. United States of America), Judgment of 27 June 2001, ICJ Reports (2001), 466

290 19; 320 5; Annex VI 25 6

United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Provisional Measures, Order of 15 December 1979, ICJ Reports (1979), 7

Annex VI 28 28

Voting Procedure on Questions relating to Reports and Petitions concerning the Territory of South West Africa, Advisory Opinion of 7 June 1955, ICJ Reports (1955), 67

305 19

Western Sahara, Advisory Opinion of 16 October 1975, ICJ Reports (1975), 12

191 8; 305 25, 28; Annex VI 21 19

Whaling in the Antarctic (Australia v. Japan; New Zealand Intervening), Merits, Judgment of 31 March 2014, ICJ Reports (2014), 226

65 15; 120 14; 204 19; 238 13; Annex VIII 1 2; 3 8

XXXVII

Cases Permanent Court of International Justice Appeal from a Judgment of the Hungaro v. Czechoslovak Mixed Arbitral Tribunal (the Peter Pa´zma´ny University) (Czechoslovakia v. Hungary), Judgment of 15th December 1933, PCIJ Series A/B, No. 61

191 3

Electricity Company of Sofia and Bulgaria Case (Belgium v. Bulgaria), Request for the Indication of Interim Measures of Protection, Order of 5 December 1939, PCIJ Series A/B, No. 79, 194

265 1

Factory at Chorzo´w Case (Germany v. Poland), Claim for Indemnity, Merits, Judgment of 13 September 1928, PCIJ Series A, No. 17

139 16; 225 14; 226 8; 228 26; 229 11; 279 16

Free Zones of the Upper Savoy and the District of Gex, Series A, No. 22 (1929)

Annex VI 27 6; 33 9

Interpretation of Judgments Nos. 7 and 8 concerning the Case of the Factory at Chorzo´w, Judgment of 16 December 1927, PCIJ Series A, No. 13, 3

Annex VI 33 13

Legal Status of Eastern Greenland (Denmark v. Norway), Judgment of 5 September 1933, Series A/B, No. 53, 22

2 8; 241 6

Mavrommatis Palestine Concessions (Greece v. United Kingdom), Judgment of 30 August 1924, PCIJ Series A, No. 2

264 4; 279 6; 283 18; 320 5; Annex VI 21 8

Nationality Decrees in Tunis and Morocco, Advisory Opinion of 7 February 1923, PCIJ Reports, Series B, No. 4, 7

116 15

Postal Service in Danzig, Advisory Opinion of 16 May 1925, PCIJ Series B, No. 11, 6

Annex VI 32 11; 33 13

Prince von Pless Administration (Germany v. Poland), Order of 4 February 1933, PCIJ Series A/B, No. 52, 11

Annex VI 24 13

Railway Traffic between Lithuania and Poland, Advisory Opinion of 15 October 1931, PCIJ Series A/B, No. 42

128 1; 283 11; 298 13

Rights of Minorities in Upper Silesia (Minority Schools), Judgment of 26 April 1928, PCIJ Series A, No. 15

Annex VI 21 13; 24 7

The ‘Wimbledon’ Case (United Kingdom, France, Italy and Japan v. Germany), Question of Intervention by Poland, Judgment of 28 June 1923, PCIJ Series A, No. 1

125 9; Annex VI 32 2

Socie´te´ commerciale de Belgique (Belgium v. Greece), Judgment of 15 June 1939, Series A/B, No. 78, 160

Annex VI 24 13

The ‘Lotus’ Case (France v. Turkey), Judgment of 7 September 1927, PCIJ Series A, No. 10

2 2; 92 1, 9; 97 2, 3, 5; 224 2; 227 7; Annex VI 29 8

XXXVIII

Cases International Tribunal for the Law of the Sea Conservation and Sustainable Exploitation of Swordfish Stocks in the SouthEastern Pacific Ocean (Chile v. European Union), Order of 20 December 2000, ITLOS Reports (2000), 148

291 5; 297 16; 300 7; Annex VI 15 8; 24 8; 27 8; Annex IX 7 5

Conservation and Sustainable Exploitation of Swordfish Stocks in the SouthEastern Pacific Ocean (Chile v. European Community), Order 2001/1 of 15 March 2001, available at: https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_7/Ord.2001.1.E.pdf.

117 21; 118 35

Conservation and Sustainable Exploitation of Swordfish Stocks in the SouthEastern Pacific Ocean (Chile v. European Union), Order of 29 December 2005, ITLOS Reports (2005–2007), 4

Annex VI 17 4

Conservation and Sustainable Exploitation of Swordfish Stocks (Chile v. European Union), Order of 16 December 2009, ITLOS Reports (2008– 2010), 13

117 21; 118 35; 287 21; 299 8; Annex VI 20 2; 27 4, 8; 33; Annex III 1 18; Annex IX 7 5

Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh v. Myanmar), Judgment of 14 March 2012, ITLOS Reports (2012), 4

15 2, 11, 12, 13, 14, 17, 18, 19, 20, 21, 23, 26, 28, 29, 30, 34, 35, 37, 40; 16 22; 76 23, 26, 32; 83 16, 17, 18; 287 14, 22, 26; 297 16; Annex II 9 10; Annex VI 21 9; 23 1; Annex VI 17 3; 24 8; 33 20

Delimitation of the Maritime Boundary between Ghana and Coˆte d’Ivoire in the Atlantic Ocean (Ghana v. Coˆte d’Ivoire), Merits, Order 2015/1 of 12 January 2015, available at: https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.23/C23_Ord_202015-1_12.01.15.pdf)

Annex VI 15 8; 17 4;24 8

Delimitation of the Maritime Boundary between Ghana and Coˆte d’Ivoire in the Atlantic Ocean (Ghana v. Coˆte d’Ivoire), Provisional Measures, Order of 25 April 2015, available at: https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.23_prov_meas/C23_Order_prov.measures_25.04.2015_orig_Eng.pdf

74 37; 280 7; 290 7; Annex VI 25 1

Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), Provisional Measure, Order of 8 October 2003, ITLOS Reports (2003), 10

Preamble 22; 11 3, 10, 19; 15 21, 23; 45 13; 197 10; 206 9; 279 12; 281 6; 283 2; 290 7; Annex VI 17 3; 25 1; 27 8; 30 6; 34 2

Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), Order of 24 May 2013, ITLOS Reports (2013), 202

Annex VI 27 4

Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission, Advisory Opinion of 2 April 2015, available at: https:// www.itlos.org/fileadmin/itlos/documents/cases/

58 13; 60 29; 61 16; 62 28; 63 2; 64 2; 94 7; 194 20; 203 6; 285 1; 288 7; 305 34; Annex VI 20 7;21 1; 23 4; 33 7; 40 5 Annex IX 5 3, 6 11

XXXIX

Cases Responsibilities and Obligations of States Sponsoring Persons and Entities With Respect To Activities in the Area, Advisory Opinion of 1 February 2011, ITLOS Report (2011), 10; available at: http://www. itlos.org/fileadmin/itlos/documents/cases/case_no_17/adv_op_010211.pdf

1 11; 33 24; 61; 135 11; 91,11; 140 10; 141 9; 144 2; 145 6; 146 10; 147 10; 148 9; 153 7, 14; 159 17; 186 7 187 13; 189 10; 190 5; 191 1; 194 20; 198 13; 199 8; 201 4; 206 3; 215 9; 225 12; 235 7; 242 14; 260 8; 263 12; 293 7; 304 7; Annex III 1 11; 2 12; 3 8; 4 1; 9 20; 15 6; 17 12; 18 24; 21 7; 22 1; Annex VI 14 1; 21 12; 23 3; 27 4; 30 3; 31 9; 37 3; 40 4; Annex IX 6 2; 20 8

Southern Bluefin Tuna Cases (Australia v. Japan; New Zealand v. Japan), Order of 16 August 1999, ITLOS Reports (1999), 274

145 41; 206 9; Annex VI 27 7

Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional Measures, Order of 27 August 1999, ITLOS Reports (1999), 277

1 14; 64 2; 116 19; 117, 28; 118, 24, 119 5; 192 3, 25; 194 31; 198 13; 203 6; 204 5, 11; 278 8; 279 6; 281 9; 282 12; 283 12; 286 5; 288 11; 289 12; 290 12, 13, 17, 20, 24, 29, 34; 300 7, 14; 311 6; Annex V 7 3; Annex VI 17 3; 21 8; 25 1; 30 6

The ‘ARA Libertad’ Case (Argentina v. Ghana), Provisional Measures, Order of 15 December 2012, ITLOS Reports (2012), 326

8 30; 29 5; 31 5; 32 2, 9; 95 1; 236 2, 11; 283 12; 290 7; 298 31; Annex VI 17 3; 25 1; 27 6; 30 5

The ‘Arctic Sunrise’ Case (Kingdom of the Netherlands v. Russian Federation), Provisional Measures, Order of 22 November 2013, ITLOS Reports (2013), 230

56 11; 60 16; 283 9; 286 6; 290 7; 298 26, 27; Annex VI 25 1; 27 6; 28 3,13; 33 9; Annex VIII 1 17; 4 3

The ‘Camouco’ Case (Panama v. France), Prompt Release, Judgment of 7 February 2000, ITLOS Reports (2000), 1

147 16; 226 20, 21; 292 10, 19, 29, 40; 294 6; 298 29; Annex VI 27 12

The ‘Chaisiri Reefer 2’ Case (Panama v. Yemen), Order of 13 July 2001, ITLOS Reports (2001), 82

Annex VI 27 5; 30 6; 33 9

The ‘Enrica Lexie’ Incident (Italy v. India), Provisional Measures, Order of 24 August 2015, available at: https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.24_prov_meas/C24_ Order_24.08.2015_orig_Eng.pdf

107 8, 9; 290 7, 16, 17; Annex VI 17 3; 25 1; 26 15; 27 12

XL

Cases The ‘Grand Prince’ Case (Belize v. France), Prompt Release, Judgment of 20 April 2001, ITLOS Reports (2001), 10, 17

91 12, 14, 15, 18; 217 11; 292 3, 11, 20; 298 29; Annex VI 17 3; 24 2; 27 11

The ‘Hoshinmaru’ Case (Japan v. Russian Federation), Judgment of 6 August 2007, ITLOS Reports (2005–2007), 18

226 21; 292 10, 24, 29, 38

The ‘Juno Trader’ Case (Japan v. Russian Federation), Prompt Release, Judgment of 18 December 2004, ITLOS Reports (2004), 17

91 16; 226 21; 292 10, 20, 28; Annex VI 34 2

The ‘Louisa’ Case (Saint Vincent and the Grenadines v. Kingdom of Spain), Provisional Measures, Order of 23 December 2010, ITLOS Reports (2008– 2010), 52

263 19; 283 16; 290 7, 10, 15, 17, 21, 28; 297 19; 298 11; Annex VI 25 1; 27 6; 28 19; 33 9

The ‘Louisa’ Case (Saint Vincent and the Grenadines v. Kingdom of Spain), Judgment of 28 May 2013, ITLOS Reports (2013), 1, 4

279 9; 283 1, 2, 9, 12, 16, 19, 21; 286 5; 287 14; 288 13; 297 19; Annex VI 15 3; 21 9; 24 2; 26 13; 27 8; 34 2

The ‘Monte Confurco’ Case (Seychelles v. France), Judgment of 18 December 2000, ITLOS Reports (2000), 86

58 13; 73 12; 121 13; 147 16; 226 3, 21; 292 2, 10, 29, 31, 32, 38; 298 29

The ‘MOX Plant’ Case (Ireland v. United Kingdom), Provisional Measures, Order of 3 December 2001, ITLOS Reports (2001), 95

118 14; 197 10; 206 14; 213 13; 237 4; 278 8; 281 10; 282 8, 9, 13, 16; 283 12; 290 7, 10, 12, 15, 20, 32; 311 4; Annex VI1 7 3; 24 9; 25 1; 27 8; 30 6; 34 2

The ‘Saiga’ (No. 1) Case (Saint Vincent and the Grenadines v. Guinea), Judgment of 4 December 1997, ITLOS Reports (1997), 16

8 28; 25 7; 27 12; 73 13; 219 18; 226 20, 21; 292 8; 293 9; 294 6; 295 4; 297 14, 19; Annex VI 15 3

The ‘Saiga’ (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Provisional Measures, Order of 11 March 1998, ITLOS Reports (1998), 24

297 14, 16, 19; Annex VI 25 1; 30 6

The ‘Saiga’ (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Order of 6 October 1998, ITLOS Reports (1998), 78

Annex VI 27 6; 33 89

The ‘Saiga’ (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment of 1 July 1999, ITLOS Reports (1999), 10

Preamble 23; 8 28; 25 8; 27 12; 56 11; 58 24; 59 1; 60 25; 62 7; 73 9; 91 2, 5, 12, 13, 15, 18; 94 6; 105 6; 106 7; 110 12; 111 6, 10, 13; 116 15; 118 24; 119 21; 139 2; 217 11; 221 3; 225 14; 226 8; 232 7, 10; 287 21; 288 13; 290 7, 10, 17, 20, 21; 292 25, 27, 28, 37, 38; 293 7; 304 15; Annex VI 21 9; 24 2; 27 11; 28 18; 34 28

XLI

Cases The ‘Tomimaru’ Case (Japan v. Russian Federation), Prompt Release, Judgment of 6 August 2007, ITLOS Reports (2005–2007), 68

73 18; 91 16; 117 35; 118 35; 226 3; 292 21, 24; Annex VI 21 15

The ‘Virginia G’ Case (Panama v. Guinea-Bissau), Notification submitted by Panama on 4 July 2011, available at: https://www.itlos.org/fileadmin/ itlos/documents/cases/case_no.19/Notification_submitted_by_Panama.pdf

Annex VII 1 3

The ‘Virginia G’ Case (Panama v. Guinea-Bissau), Order of 2 November 2012, ITLOS Reports (2012), 309

Annex VI 24 13; 27 5, 8; 30 6

The ‘Virginia G’ Case (Panama v. Guinea Bissau), Judgment 14 April 2014, available at: https://www.itlos.org/fileadmin/itlos/documents/cases/ case_no.19/judgment/C19-Judgment_14.04.14_corr.pdf

27 20; 56 11, 12; 58 10; 62 24; 73 4; 86 7; 91 2; 94 6; 116 15; 117 34; 119 21; 287 22; Annex VI 21 9; 24 8

The ‘Volga’ Case (Russian Federation v. Australia), Order of 2 December 2002, ITLOS Reports (2002), 4

Annex VI 27 5; 30 6

The ‘Volga’ Case (Russian Federation v. Australia), Judgment of 23 December 2002, ITLOS Reports (2002), 10

73 14; 111 6, 10; 121 13; 147 16; 226 20; 292 26, 29, 31, 32; Annex VI 17 3; 27 11

Permanent Court of Arbitration Affaire relative a` la concession des phares de l’Empire ottoman (Gre`ce, France), Sentence de 24/27 juillet 1956, RIAA XII, 155

Annex VI 33 19

Arbitration between Barbados and the Republic of Trinidad and Tobago (Barbados v. Trinidad and Tobago), Award of 11 April 2006, RIAA XXVII, 147

15 11; 47 53; 48 7; 56 34; 74 21; 83 15; 281 10; 283 13; 293 8; 297 20; 298 10; Annex V 7 3; Annex VII 1, 3; 10 3

Arbitration between Guyana and Suriname (Guyana v. Suriname), Award of 17 September 2007, ILM 47 (2008)

5 25; 74; 83; 279; 283; 286; 288; 297; Annex V 7 3; Annex VII 1 3; 10 3

Award of the Arbitral Tribunal in the Second Stage – Maritime Delimitation (Eritrea v. Yemen), 17 December 1999, RIAA XXII, 335

13 8, 15 11, 19, 30, 34, 35, 37, 39; 51 10; 74 21

Award on Territorial Sovereignty and Scope of the Dispute (Eritrea v. Yemen), Award of 9 October 1998, ILM (2001), 900

7 41

Barbados v. Trinidad and Tobago Arbitration, Award of 11 April 2006, ILM 45, 839

Annex VII 1 3; 10 3

Bay of Bengal Maritime Boundary Arbitration between the People’s Republic of Bangladesh and the Republic of India (2014) (Bangladesh v. India), Award of 7 July 2014, available at: http://www.pca-cpa.org

7 50; 83 16; 283 20; 287 14; Annex II 9 10; Annex V 7 3; Annex VI 33 20; Annex VII 1 3; 3 9; 10 3

Dispute between Argentina and Chile Concerning the Beagle Channel (Argentina v. Chile), Award of 18 February 1977, RIAA XXI, 53

15 26, 27, 41

XLII

Cases Duzgit Integrity Arbitration (Malta v. Sa˜o Tome´ and Prı´ncipe), Procedural Order No. 1, 17 March 2014

Annex VII 3 5

Guyana v. Suriname, Award of 17 September 2007, ILM 47 (2008), 166

83 15; 105 7; Annex VII 1 3; 10 3

Indus Waters Kinshenganga Arbitration (Pakistan v. India), Partial Award, 18 February 2013, available at: http://www.pca-cpa.org/showpage.asp? pag_id=1392

1 13

Island of Palmas Case (Netherlands v. United States), Award of 4 April 1928, RIAA II, 829

2 14

Land Reclamation by Singapore in and Around the Straits of Johor (Malaysia v. Singapore), Award on Agreed Terms of 1 September 2005, RIAA XXVII, 133

11; 24 7; 290 7; Annex VII 1 3

South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, available at: https://pcacases.com/web/view/7

2 23; 5 28, 32; 10 22, 24; 15 35; 47 4; 51 10; 56 8; 58 10; 60 8; 62 12; 68 6; 87 12; 89 8; 121 7; 192 3, 5, 7, 19, 23, 25; 193 1; 194 1, 2, 13, 20, 30, 33; 197 13; 237 4, 20; 280 6; 286 6, 11; 287 18; 290 20; Annex VIII 1 17

Southern Bluefin Tuna Case (Australia and New Zealand v. Japan), Statement of Claim by Australia and New Zealand, 15 July 1999, available at https://icsid.worldbank.org/apps/ICSIDWEB/Documents/Statement%20of%20Claim% 20of%20Australia%20and%20New%20Zealand.pdf

Annex VII 3 11

Southern Bluefin Tuna Case (Australia and New Zealand v. Japan), Jurisdiction and Admissibility, Award of 4 August 2000, RIAA XXIII, 1

51 7; 118 24; 280 5,6; 281 8, 9, 10, 11, 13; 283 12, 21; 286 4, 5; 290 7, 10, 13, 17, 20, 24, 29, 32, 34; 293 8; 299 8; 300 5, 7, 14; 311 4, 6; Annex V 7 3; Annex VII 1 2; 7 3; 10 3

The ‘ARA Libertad’ Arbitration (Argentina v. Ghana), Termination Order of 11 November 2013, available at: http://www.pca-cpa.org/showpagefc8a. html? pag_id=1526

287 18; Annex VII 1 3

The ‘Arctic Sunrise’ Arbitration (Netherlands v. Russian Federation), Note Verbale from the Russian Federation to the PCA, 27 February 2014, available at: http://www.pcacases.com/web/sendAttach/1315

Annex VII 3 5

The ‘Arctic Sunrise’ Arbitration (Netherlands v. Russian Federation), Award on Jurisdiction of 26 November 2014, available at: http://www.pcacpa.org/2014-02%20Award%20on%20Jurisdiction1f28.pdf?fil_id=2845

297 15; 298 26, 28

The ‘Arctic Sunrise’ Arbitration (Netherlands v. Russia), Award on the Merits of 14 August 2015, available at: http://www.pcacases.com/web/view/ 21

87 10; 88 9; 91 2; 92 3; 111 5; 234 37, 39; 286 6; Annex VIII 1 17

The ‘Atlanto-Scandian Herring’ Arbitration (Denmark in respect of the Faroe Islands v. European Union), Procedural Order No. 1 of 15 March 2014

Annex IX 7 6

XLIII

Cases The ‘Atlanto-Scandian Herring’ Arbitration (Denmark in respect of the Faroe Islands v. European Union), Termination Order of 23 September 2014, available at: http://www.pcacases.com/web/view/25

63 5; Annex VII 7 3; Annex IX 7 6

The ‘Chagos Marine Protected Area’ Arbitration (Mauritius v. United Kingdom), Award of 18 March 2015, available at: http://www.pca-cpa.org/ showpagea579.html?pag_id=1429

2 23; 55 15; 56 25; 61 14, 15; 68 5; 192 3; 194 1, 31; 203 6; 204 12, 16; 207 12; 208 13; 279 10; 281 13; 282 14; 283 2, 8, 21; 286 11; 287 18; 297 1, 10, 12, 13, 18, 21, 23; 298 2, 16, 18, 22; 299 8; 305 5; Annex V 7 3; Annex VI 21 9; Annex VII 1 3; 7 3; 10 3

The ‘Enrica Lexie’ Incident Arbitration (Italy v. India), Provisional Measures Order of 29 April 2016, available at: www.pca-cpa.org

287 18; 290 7, 16, 17, 32

The ‘Grisbådarna’ Case (Norway v. Sweden), Award of 23 October 1909, RIAA XI, 147

2 8, 15; 15 26, 41; 74; 83 2

The ‘MOX Plant’ Case (Ireland v. United Kingdom), Order No 3: Suspension of Proceedings on Jurisdiction and Merits and Request for further Provisional Measures of 24 June 2003, ILM 42 (2003), 1187

282 9; 290 15

The ‘MOX Plant’ Case (Ireland v. United Kingdom), Order No 6, Termination of Proceedings of 6 June 2008, 42 ILM 1187

282 9; Annex VII 1 3; 73

The ‘Muscat Dhows’ Case (France v. Great Britain), Award of 8 August 1905, RIAA XI, 83

91 2, 7; 92 8; Annex III 9

The ‘North Atlantic Coast Fisheries’ Case (Great Britain v. United States of America), Award of 7 September 1910, RIAA XI, 167

2 8, 23; 10 6, 33; 61 5

The Republic of the Philippines v. The People’s Republic of China, Award on Jurisdiction and Admissibility, 29 October 2015, available at: https://pcacases.com/web/sendAttach/1506

Annex VIII 1 17

Other International Courts Arbitration between Petroleum Development (Trucial Coast) Ltd. and Sheikh of Abu Dhabi, AJIL 47 (1953), 156

77 8; 81 8

Award between the United States and the United Kingdom, Relating to the Rights of Jurisdiction of United States in the Bering’s Sea and the Preservation of Fur Seals (United States v. United Kingdom), Decision of 15 August 1893, RIAA XXVIII, 263

2 7; 65 4;; 66 5; 116 6; 117 6; 118 4; 119 6; 120 5

Behrami and Behrami v. France, Saramati v. France, Germany and Norway, Admissibility, Decision of 2 May 2007, available at: http://hudoc.echr.coe.int/webservices/content/pdf/001-80830?TID=knhmsepxft

31 4

Chile – Measures Affecting the Transit and Importation of Swordfish, Agreement between the European Communities and Chile of 6 April 2001, WT/DS193/3 (01-1770)

117 21

XLIV

Cases Chile – Measures Affecting the Transit and Importation of Swordfish, Communication from the European Communities of 9 April 2001,WT/ DS193.Add.1

117 21

Chile – Measures Affecting the Transit and Importation of Swordfish, Request for the Establishment of a Panel by the European Communities of 7 November 2000, WT/DS/193/2 (00-4761)

117 21

Claim of Finnish Shipowners against Great Britain in Respect of the Use of Certain Finnish Vessels During the War (Finland v. Great Britain), Award of May 9 1934 by Mr. Algot Bagge, RIAA III, 1479

186 3

Costa Rica v. Nicaragua, Judgment of 30 September 1916, AJIL 11 (1917), 181

10 32

Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic (1977), RIAA XVIII, 3

83 15

Delimitation of the Maritime Areas between Canada and France (France v. Canada), Decision of 10 June 1992, RIAA XXI, 265

57 6; 74 11; 83 15

Delimitation of the Maritime Boundary (Guinea v. Guinea-Bissau), Award of 14 February 1985, ILM 25 (1986), 251

15 1, 31

Delimitation of the Maritime Boundary between Guinea and Guinea-Bissau (1985), RIAA XIX, 149

74 11, 19, 40; 83 15

Dispute between Argentina and Chile Concerning the Beagle Channel (Argentina v. Chile), Judgment of 18 February 1977, RIAA XXI, 53

41 1

Dubai v. Sharjah Border Arbitration, Arbitral Award of 19 October 1981, ILR 91 (1993), 543

11 1, 4, 5, 12, 21; 15 1

El Salvador v. Nicaragua, Opinion and Decision of 9 March 1917, AJIL 11 (1917), 674

10 6, 32, 33; 33 6

European Union – Measures on Atlanto-Scandian Herring, Joint Communication from Denmark in respect of the Faroe Islands and the European Union of 21 August 2014, WT/DS469/3

63 5

Filleting in the Gulf of St. Lawrence (Canada v. France), Award of 17 July 1986, RIAA XIX, 225

55 3; 56 12; 62 7; 311 11

Japan – Measures Affecting the Import of Applies, 10 December 2003, WT/ DS245/AB/R

206 14

Kate A. Hoff, Administratrix of the Estate of Samuel B. Allison, Deceased (U.S.A.) v. United Mexican States (The Rebecca), 2 April 1929, RIAA IV, 444

98 11

Lac Lanoux Arbitration (France v. Spain) Award of 16 November 1957, ILR 24, 101

67 11; 118 20

Libyan Arab Foreign Investment Company (LAFICO) v. Republic of Burundi, Arbitral Award 4 March 1991, ILR 96 (1994), 279

18 10

Matthews v. the United Kingdom, Judgment of 18 February 1999, http:// hudoc.echr.coe.int/hudoc

139 21

Medvedyev v. France, Judgment of 29 March 2010, available at: http:// hudoc.echr.coe.int/hudoc/

108 9; 110 3

XLV

Cases Owners, Officers and Men of the Wanderer (Great Britain v. United States), Award of 9 December 1921, RIAA VI, 68

33 5

Request for Interpretation, Iran-U.S. Claims Tribunal Reports 14 (1987), 324

296 1

Saudi Arabian v. Arabian American Oil Company (ARAMCO), Award of 23 August 1958, ILR 27 (1963) 117, 212

8 17; 131

The ‘I’m Alone’ Case (Canada v. United States), Award of 5 January 1935, RIAA III, 1609

111 13

The Prosecutor v. Dragoljub Kunarac, ICT-96-23-T, Judgment of 22 February 2001

99 6; 110 14

The ‘Red Crusader’ Case, Commission of Enquiry Established by the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of Denmark, (Denmark v. United Kingdom), Award of 23 March 1962, ILR 35 (1967), 485

111 13; Annex VIII 5 2

The ‘Trail Smelter’ Case (US v. Canada), Award of 16 April 1938 and Award of 11 March 1941, RIAA III, 1905

194 1, 19; 204 20; 206 10; 230 11

United States – Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Appellate Body of 12 October 1998, WT/DS58/AB/R, available at: http://www.wto.org/english/tratop_e/dispu_e/distabase_wto_members4_e.htm

300 12

United States – Restrictions on Imports of Tuna, DS21/R, 3 September 1991, unadopted, BISD 39S/155

65 19

United States – Measures concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/AB/R, 16 May 2012

65 19

Waite and Kennedy v. Germany, Judgment of 18 February 1999, http:// hudoc.echr.coe.int/hudoc

139 21

Women on the Waves and Others v. Portugal, Judgment of 2 March 2009, App. No. 31276/05

19 12

Court of Justice of the European Union Case C-146/89, Commission of the European Communities v. United Kingdom [1991] ECR I-03533, I-03533

3 10

Case C-2/90, Commission of the European Communities v. Kingdom of Belgium [1992] ECR I-4431

195

Case C-286/90, Anklagemyndigheden v. Peter Michael Poulsen and Diva Navigation Corp. [1992] ECR I-6019

17 10

Case C-29/99, Commission of the European Communities v. Council of the European Union [2002] ECR I-11221

Annex IX 5 15

Case C-459/03, Commission of the European Communities v. Ireland [2006] ECR I-4635

282; Annex IX 5 15; 77

Case C-440/05, Commission of the European Communities v. Council of the European Union [2007] ECR I-09097

Annex IX 4 14

XLVI

Cases Case C-308/06, The Queen on the Application of: International Association of Independent Tanker Owners (Intertanko) and Others v. Secretary of State for Transport [2008] ECR I-4057

17 1; 56 9; 58 9; 60 29; Annex IX 4 14

Case C-73/14, Council of the European Union v. European Commission, available at: http://curia.europa.eu/juris/liste.jsf?language=en&jur= C,T,F&num=C-73/14&td=ALL

Annex IX 7 5

Domestic Courts ACT Shipping (OTE) Ltd v. Minister for the Marine, Ireland and the Attorney-General (The MV Toledo) [1995] 2 ILM 30 (Ireland)

18 12

Alaska v. United States, 546 U.S. 413 (2006) (USA)

10 33

Alfred Dunhill Inc v. Republic of Cuba, 425 U.S. 682 (1976) (USA)

96 10

American Telephone & Telegraph Co v. M/V Cape Fear, 967 F.2 d 864 (3rd Circ. 1992) (USA)

113 3; 114 10

Antoni Case, 6 El Foro 194 (Mexico)

27 15

Attican Unity, Supreme Court of the Netherlands, 7 February 1986, Schip en Schade No. 61 (1986) (Netherlands)

19 25; 25 7

Attorney-General for British Columbia v. Attorney-General for Canada [1914] AC 153 (UK)

28

Attorney-General v. Ngati Apa [2003] 3 NZLR 643 (New Zealand)

17 10

Carr v. Francis Times & Co. [1902] AC 176 (UK)

28

Castle John and Nederlandse Stichting Sirius v. NV Mabeco and NV Parfin, 19 December 1986, ILR 77 (1988), 537 (Netherlands)

101 10

Chung Chi Cheung v. The King [1938] 4 All ER 786 (UK)

32 13

Church v. Hubbart (1804), U.S. Supreme Court, 6 U.S. 2 Cranch 187, (1804) (USA)

33 4

Compania Naviera Panlieve SA v. Public Prosecutor, ILR 101 (1996), 409

109 7

Congreso del Partido [1983] 1 AC 244 (UK)

96 10

Cope v. Vallette Dry-Dock Co, 119 U.S. 625 (1887) (USA)

17 9

Cornish Submarine Mines (First) Arbitration of 1856

77 4; 85 6

Croft v. Dunphy [1933] AC 156 (UK)

33 6

Cunard Steamship Co. v. Mellon, 262 U.S. 100 (1923) (USA)

2 8; 27 4

Cygnus Case (Somali Pirates), 17 June 2010, ILR 145 (2012), 491 (Netherlands)

105 9

Ellis v. United States, 206 U.S. 246 (1907) (USA)

17 9; 121 53

Ex parte Marincovich, Judgment of 10 July 1920, 192 P. 156 (Cal. App. 2 Dist. 1920) (USA)

9 10

Georgia v. South Carolina, 497 U.S. 376 (1990) (USA)

96 10

XLVII

Cases ICC Handel Maatschappij v. Union of Soviet Socialist Republics, 4 February 1976, Schip en Schade (1976), No. 43 (Netherlands)

16 25

Image and Sun Cruises Ltd, Sun Vista v. Sembawang Ship Management Pte Ltd, Suit No. 76 of 2002/w (Singapore)

100 2; 101 5;

In re Piracy Jure Gentium [1934] AC 586 (UK)

102 5; 105 2

Institute of Cetacean Research v. Sea Shepherd Conservation Society, 725 F 3 d 940 (2013), US Court of Appeals (9th Circuit), 944 (USA)

101 10

Lauritzen v. Larsen, 345 U.S. 571 (1953) (USA)

91 7

Le Louis [1817] 165 ER 1464 (UK)

33 5; 92 4; 99 3

Long Lin, Raad van State, 10 April 1995, Netherlands Juristen Blaad (1995), 199–200 (Netherlands)

25 7

Manchester v. Massachusetts, 139 U.S. 240 (1891) (USA)

33 6

MC Ruby, No. 95-80725, 3 May 1995 (France)

27 21

Middleton v. United States, Judgment of 23 April 1929, 32 F.2 d 239, 240 (C.C.A. 5th, 1929) (USA)

121 13

Mustafic et al. v. the Netherlands, Gerechtshof, Judgment of 5 July 2011, LJN: BR5386, available at http://zoeken.rechtspraak.nl/detailpage.aspx?ljn=BR5386 (Netherlands)

31 4

Nuhanovic v. Netherlands, Gerechtshof, Judgment of 5 July 2011, ILR 153, 467 (Netherlands)

31 4

Ownership of the Bed of the Strait of Georgia and Related Areas [1984] 8 DLR (4th) 161 (Canada)

35 3

Petit Jules [1850] 39 FOCP 2633 (UK)

33 5

Pianka v. R [1979] AC 107 (UK)

17 10; 27 8

Post Office v. Estuary Radio Ltd. [1968] 2 QB 740 (UK)

9 15; 10 12, 17; 17 10

Prof. Merlin M. Magallona et.al. v. Hon. Eduardo Ermita, in his Capacity as Executive Secretary et al., G.R. No. 187167, 16 July 2011 (Philippines)

53 7

Public Prosecutor v. Haraldsson and Others, Judgment of 7 May 1996, 140 ILR 559 (Norway)

121 33, 48

Public Prosecutor v. KVD and LMT, ILR 74 (1987), 200 (Netherlands)

109 6, 7

R v. Dean and Bolden [1998] 2 Cr. App. R. 171 (UK)

108 11

R v. Sunila and Soleyman (1986) 28 DLR (4th) 450 (Canada)

111 9

R. v Goodwin [2006] 1 Lloyd’s Rep. 432 (UK)

17 9; 20 6

R. v. Keyn [1876] 2 Ex. D. 63 (UK)

2 7; 17 3; 19 2; 27 4

R.M.S. Titanic v. Haver, et al., 171 F.3 d 943 (4th Cir. 1999) (USA)

303 22

Re Martinez (1959), Court of Cassation, ILR 28 (1963), 170 (Italy)

33 24

Re Pulos, ILR 77 (1988), 587 (Italy)

111 9

Republic of Italy v. Union of India, Supreme Court of India (SLP (C) No 20370 of 2012), 18 January 2013 (India)

107 9

XLVIII

Cases Scaramanga v. Stamp [1880] 5 CPD 295, 304 (UK)

98 4

Seabed and Subsoil of the Continental Shelf Offshore Newfoundland [1984] 1 S.C.R. 86 (Canada)

85 9

Seizure and Search of the ‘Lucky Star’ (Jurisdiction – Offshore Broadcasting), ILM 2 (1963), 343 (Denmark)

109 7

Sellers v. Maritime Safety Inspector [1999] 2 NZLR 44 (CA) (New Zealand)

113 7

Socie´te´ Telus Communications and Ors. v. Peracomo Inc, [2012] FC 199 (Canada)

21 7

Steedman v. Scofield [1992] 2 Lloyd’s Rep 163 (UK)

17 9

Stewart v. Dutra Construction, 543 U.S. 481 (2005) (USA)

17 9

~a, S.A. v. Ministro de Medio Ambiente, 1341/2004, Telefo´nica de Espan available at: www.poderjudicial.es/search/doAction?action=contentpdf&databasematch=TS&reference=97398&links=Telef%F3nica%20S.A.&optimize=20080710&publicinterface=true (Spain)

79 26

Texas v. Louisiana, 406 U.S. 465 (1976) (USA)

9 10

The ‘Ambrose Light’, 25 Fed 408 (S.D.N.Y., 1885) (USA)

102 5

The ‘Anna’, [1805] 165 E.R. 809, 817, 814 (UK)

3 4; 121 10

The ‘Antelope’ (1825) 23 U.S. (10 Wheat.) 66 (USA)

99 3

The ‘Asya’ (Naim Molvan v. Attorney General for Palestine) [1948] AC 351 (UK)

92 14; 110 15

The ‘Charkeih’ [1873] LR 4 A&E 59 (UK)

32 4

The ‘Charkow’, Landgericht Bremen, 21 December 1959, ILR 65 (1984), 100 (Germany)

96 10

The ‘Eleanor’ (1809) 165 ER 1067 (UK)

8 28

The ‘Marianna Flora’, 24 U.S. (11 Wheaton) 1 (1826) (USA)

106 6; 110 12

The ‘Parlement Belge’ [1880] 5 PD 197 (UK)

32 4

The ‘Philippine Admiral’ (Owners) v. Wallem Shipping (Hong Kong) Limited and Another, ILR 64 (1983), 90 (UK)

96 10

The ‘Prins Frederik’ [1820] 4 Dods. 451 (UK)

32 4

The Queen v. Tang [2008] HCA 39 (Australia)

99 6

The Schooner Exchange v. McFaddon, 11 U.S. 116 (1812) (USA)

27 4; 32 4; 95 2; 236 2

The ‘Trade Resolve’ [1999] 4 SLR 424 (Singapore)

28 11

Twee Gebroeders (The Espiegle and four Dutch Vessels) [1800] 165 E.R. 422, 423 (UK)

34

United States v. Alaska, Judgment of 19 June 1997, 521 U.S. 1 (1997) (USA)

11 7; 121 6

United States v. Ali, Case No. 12-3056, US Court of Appeals, District of Columbia Circuit, 11 June 2013 (USA)

101 17

United States v. Ali, Criminal Case No. 11-0106, Memorandum Opinion of 13 July 2012, 885 F.Supp.2 d 17 (2012) (USA)

101 17

XLIX

Cases

L

United States v. California, 382 U.S. 448 (1966) (USA)

10 9

United States v. California, 432 U.S. 40 (1977) (USA)

11 13

United States v. California, 447 U.S. 1 (1980) (USA)

11 1, 7, 8, 11, 13

United States v. F/V Taiyo Maru, 395 F.Supp. 413 (D. Me. 1975) (USA)

33 24

United States v. Gonzalez, 776 F.2 d 931 (11th Cir. 1985) (USA)

33 24

United States v. Klintock, 18 U.S. (5 Wheaton) 144 (1820) (USA)

100 1; 105 2

United States v. Louisiana, 394 U.S. 11 (1969) (USA)

10 9, 10, 12, 31; 17 10

United States v. Marino-Garcia, 679 F.2 d 1373 (11th Cir. 1982) (USA)

110 15

United States v. Marshalls, Decision of 8 May 2008, 2008 U.S. Dist. LEXIS 38627 (USA)

121 34, 44

United States v. Palmer, 16 U.S. 610 (1818) (USA)

101 7

United States v. Postal et al, 589 F.2d. 862 (5th Cir, 1979) (US) (USA)

27 21

United States v. Smith, 18 U.S. 153 (1820) (USA)

101 7

Wijsmuller Salvage BV v. ADM Naval Services, Rechtsbank Amsterdam, Judgment of 19 November 1987, NYIL 20 (1989), 294(Netherlands)

32 13

Wildenhus Case, 120 U.S. 1 (1897) (USA)

27 15

Essential Treaties The following international agreements are widely relied upon within the scope of this book and are thus not provided with official sources in the context of the specific commentaries: Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 (adopted 28 July 1994, entered into force 28 July 1996)

1836 UNTS 3

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 (concluded 4 December 1995, entered into force 11 December 2001)

2167 UNTS 88

Charter of the United Nations (adopted 26 July 1945, entered into force 24 October 1945)

15 UNCIO 335

Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993)

1760 UNTS 79

Geneva Convention on the Territorial Sea and the Contiguous Zone (adopted 29 April 1958, entered into force 10 September 1964)

516 UNTS 206

Geneva Convention on the High Seas (adopted 29 April 1958, entered into force 30 September 1962)

450 UNTS 12

Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas (adopted 29 April 1958, entered into force 20 March 1966)

559 UNTS 286

Geneva Convention on the Continental Shelf (adopted 29 April 1958, entered into force 10 June 1964)

499 UNTS 312

Statute of the International Court of Justice (adopted 26 July 1945, entered into force 24 October 1945)

15 UNCIO 355

United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994)

1833 UNTS 3

Vienna Convention on the Law of Treaties (adopted 23 January 1969, entered into force 27 January 1980)

1155 UNTS 332

LI

Preamble The States Parties to this Convention, Prompted by the desire to settle, in a spirit of mutual understanding and co-operation, all issues relating to the law of the sea and aware of the historic significance of this Convention as an important contribution to the maintenance of peace, justice and progress for all peoples of the world, Noting that developments since the United Nations Conferences on the Law of the Sea held at Geneva in 1958 and 1960 have accentuated the need for a new and generally acceptable Convention on the law of the sea, Conscious that the problems of ocean space are closely interrelated and need to be considered as a whole, Recognizing the desirability of establishing through this Convention, with due regard for the sovereignty of all States, a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment, Bearing in mind that the achievement of these goals will contribute to the realization of a just and equitable international economic order which takes into account 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, Desiring by this Convention to develop the principles embodied in resolution 2749 (XXV) of 17 December 1970 in which the General Assembly of the United Nations solemnly declared inter alia that the area of the seabed and ocean floor and the subsoil thereof, beyond the limits of national jurisdiction, as well as its resources, are the common heritage of mankind, the exploration and exploitation of which shall be carried out for the benefit of mankind as a whole, irrespective of the geographical location of States, Believing that the codification and progressive development of the law of the sea achieved in this Convention will contribute to the strengthening of peace, security, cooperation and friendly relations among all nations in conformity with the principles of justice and equal rights and will promote the economic and social advancement of all peoples of the world, in accordance with the Purposes and Principles of the United Nations as set forth in the Charter, Affirming that matters not regulated by this Convention continue to be governed by the rules and principles of general international law, Have agreed as follows: Bibliography: Vasco Becker-Weinberg, The Internationalization of Marine Natural Resources in UNCLOS, in: Rainer Lagoni/Peter Ehlers/Marian Paschke/Duygu Damar (eds.), Recent Developments in the Law of the Sea (2010), 9–54; David Freestone (ed.), The 1982 Law of the Sea Convention at 30: Success, Challenges and New Agendas (2013); Tommy T.B. Koh, A Constitution for the Oceans, Remarks made by President of the Third United Nations Conference on the Law of the Sea, in: UN, The Law of the Sea: Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index (1983), xxxiii-xxxvii; Rainer Lagoni, Commentary (The LOS Convention as an International Regime: A Political Science Perspective), in: Alex G. Oude Elferink (ed.), Stability and Change in the Law of the Sea: The Role of the LOS Convention (2005), 49–51; Makane Motse Mbengue, Preamble, MPEPIL, available at: http://www.mpepil.com; Myron H. Nordquist (ed.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. I (1985); Myron H. Nordquist/ Shabtai Rosenne/Louis B. Sohn (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. V (1989); Karl J. Partsch, Nations, Peoples, in: Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, vol. III (1997), 511–515; Rosemary Rayfuse, Precaution and the Protection of the Marine Biodiversity in Areas beyond National Jurisdiction, in: David Freestone (ed.), The 1982 Law of the Sea Convention at 30 (2013), 99–107; Shirley V. Scott, The LOS Convention as Constitutional Regime for the Oceans, in: Alex G. Oude Elferink (ed.), Stability and Change in the Law of the Sea: The Role of the LOS Convention (2005), 9–38; Eric Suy, Le

Lagoni

1

Preamble

1–2

Pre´ambule, in: Emile Yakpo/Tahar Boumedra (eds.), Liber Amicorum Judge Mohammed Bedjaoui (1999), 253– 269; Hans-Dietrich Treviranus, Preamble, in: Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, vol. III (1997), 1097–1098; Csaba Varga, The Preamble: A Question of Jurisprudence, Acta Juridica Academiae Scientiarum Hungaricae 13 (1971), 100–128; Paul You, Le pre´ambule des traite´s internationaux (1941). Documents: Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction, GA Res. A 2749 (XXV) of 17 December 1970; GA Res. 54/33 of 24 November 1999; GA Res. 44/26 of 20 November 1989; GA Res. 43/18 of 1 November 1988; GA Res. 42/20 of 18 November 1987; GA Res. 41/34 of 5 November 1986; GA Res. 40/63 of 10 December 1985; GA Res. 39/73 of 13 December 1984; GA Res. 38/59 of 14 December 1983; GA Res. 37/66 of 3 December 1982; GA Res. 3067 (XXVIII) of 16 November 1973; GA Res. 2750 C (XXV) of 17 December 1970; GA Res. 2625 (XXV) of 24 October 1970; GA Res. 2574 D (XXIV) of 15 December 1969; GA Res. 899 (IX) of 14 December 1954; ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4–12; UNCED, The Rio Declaration on the Environment and Development, UN Doc. A/CONF.151/5/REV.1 (1992), ILM 31, 874. Cases: ITLOS, Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), Provisional Measures, Order of 8 October 2003, ITLOS Reports (2003), 10; ITLOS, The M/V ‘Saiga’ (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment of 1 July 1999, ITLOS Reports (1999), 10. Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Title of the Convention and Preambular Paragraphs. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Preamble 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Preamble 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Preamble 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Preamble 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. Preamble 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. Preamble 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8. Preamble 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9. Preamble 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 9 15 15 16 18 21 23 29 31 36 39

I. Purpose and Function The United Nations Convention on the Law of the Sea of 12 December 1982 (UNCLOS) consists of the Preamble, with eight preambular paragraphs, and the operative part, including XVII parts with 320 articles and IX annexes. Part XI of the Convention was revised by the Agreement Relating to the Implementation of Part XI which was adopted on 28 July 1994 (1994 Implementation Agreement). The implementation of the Convention relating to the conservation and management of living resources has been improved by the UN Fish Stocks Agreement, adopted on 4 August 1995 (UNFSA). The agreements have their own preambles, each of which is relevant in the context of the respective agreement and each is complementary to the Preamble of the Convention. 2 The Preamble1 was adopted at UNCLOS III as an integral part of the Convention. States Parties cannot ratify or accede to the Convention without the Preamble, nor can they exclude a preambular paragraph. The Preamble has a special status within the Convention; in contradistinction to the operative provisions, the preambular paragraphs are not legally binding. They do not create legal rights or obligations for the States Parties. Neither could they sustain a claim of responsibility or liability if a States Party were to act contrary to them. This is because they do not provide ‘obligations assumed under this Convention’ 1

1 As to preambles, see generally: Paul You, Le pre ´ambule des traite´s internationaux (1941); Csaba Varga, The Preamble: A Question of Jurisprudence, Acta Juridica Academiae Scientiarum Hungaricae 13 (1971), 101–128; Eric Suy, Le Pre´ambule, in: Emile Yakpo/Tahar Boumedra (eds.), Liber Amicorum Judge Mohammed Bedjaoui (1999), 253–269.

2

Lagoni

3–6

Preamble

(�Art. 300). The principle of pacta sunt servanda2 only applies to the binding provisions which are set forth in the operative part of the Convention. No reservations or exceptions may be made to the Preamble (�Art. 309). As expressed in the recitals, the States Parties were prompted, they noted, were conscious, they recognized, were bearing in mind, desired, believed and affirmed through the preambular paragraphs, but they did not stipulate in the Preamble, nor did they agree to be bound by them. The Preamble is not a source of international law3 in the sense of Art. 38 (1)(a)–(c) of the Statute of the International Court of Justice (ICJ Statute). In short: the Preamble does not regulate, it explains. Because of their introductory and explanatory character and nonbinding nature, preambles are occasionally described as narratio, whilst the operative part of a convention forms the dispositio.4 However, some preambular paragraphs refer to a right or duty which is set forth in the operative part of the Convention. For example, the obligation of the States Parties to protect and preserve the marine environment provided in Art. 192 is mentioned in Preamble 4, and Preamble 6 refers to the General Assembly declaration on the common heritage principle which is codified in Art. 136.5 But these references do not change the legal status of the preambular paragraphs in question. Nor do they make the respective phrases in the preambular paragraphs a binding rule,6 even if they state, for example, that the resources of the Area ‘shall’ be carried out for the benefit of mankind as a whole. To consider a preambular paragraph as a binding legal rule would be contrary to the interest of States Parties who agreed on the preambular paragraph with no intention that it was to become binding. Its non-binding nature, however, does not mean that the Preamble is of no legal relevance whatsoever. For the purpose of the interpretation of UNCLOS, the Preamble is, according to Art. 31 (2) VCLT, like the annexes included in the text of the Convention. It indicates, inter alia, the principal object and purpose of the Convention, which is often of considerable relevance for the interpretation of its provisions. Accordingly, the preambular paragraphs may be taken into consideration in a legal dispute concerning the interpretation of the Convention. Furthermore, despite the fact that they may not form the basis for a legal claim, preambular paragraphs may also be the subject of a dispute concerning the interpretation or application of the Convention. Parties are under an obligation to settle such disputes by peaceful means (�Art. 279). In the course of such settlement the Preamble as a whole, as well as individual preambular paragraphs, may be subject to interpretation. Like the treaty as a whole, the preamble shall be interpreted in good faith in accordance with the ordinary meaning to be given to its terms and in the light of its object and purpose.7 Preambular paragraphs referring to binding provisions of the Convention must be interpreted in the sense of these provisions. For example the common heritage principle mentioned in Preamble 6 has the same meaning as 2

See Art. 26 Vienna Convention on the Law of Treaties (VCLT). Accordingly, it does not grant more rights to the States Parties than the relevant operative provisions. An example is the preamble of the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties of 29 November 1969, which refers to ‘the grave consequences of a maritime casualty resulting in danger of oil pollution’, whereas Art. I (1) requires ‘grave and imminent danger from oil pollution or threat of pollution’, see Suy (note 1), 262. 4 See Hans-Dietrich Treviranus, Preamble, in: Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, vol. III (1997), 1097. 5 Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction, GA Res. A 2749 (XXV) of 17 December 1970. 6 An opposite view is taken by Makane Motse Mbengue, Preamble, MPEPIL, available at: http://www.mpepil.com, paras. 13–14, stating that preamble statements ‘may receive a relatively binding force if incorporated expressis verbis by treaty obligations’ or from ‘the inclusion of principles of international law in their body’; further, the preamble of an international treaty ‘rarely in itself imposes direct obligations on the States concerned’, see Myron H. Nordquist (ed.), United Nations Convention on the Law of the Sea: A Commentary, vol. I (1985), 466 (MN 16). 7 See Art. 31 (1) VCLT. 3

Lagoni

3

3

4

5

6

Preamble

7–9

the principle set forth in Art. 136 – except that its restatement in the Preamble has no binding force because it is a preambular paragraph, not a legal norm. 7 Neither does the non-binding nature of the preambular paragraphs mean that they are devoid of any political, moral, ethical or ideological meaning. To a certain extent the Preamble mirrors the political and economic interests and expectations of the States Parties. Hence the Yugoslavian delegation observed at the Conference that ‘[t]he preamble was very important, since it should reflect new trends in international relations.’ 8 If the preambular paragraphs contain such political principles, as e. g. the aim of ‘progress for all peoples’ (Preamble 1) or ‘friendly relations among all nations’ (Preamble 7), the States Parties may choose to react, upon their violation, with adequate and proportionate political or economic means. 8 As stated, in legal publications the function of a preamble is often described as interpretative, supplementary or incorporating. But such a general description is hardly adequate to identify the principal object and purpose of the comparatively long and complex preamble of the Convention.9 This is the recognition, by the States Parties, of the desirability to establish a ‘legal order for the seas and oceans’, as mentioned in Preamble 4. This is certainly ‘the most important and the most ‘substantive’ of the preambular paragraphs’ 10 to which the others add in several ways.11

II. Historical Background 9

There is no uniform diplomatic practice concerning the adoption of preambles in conventions on the law of the sea. The Conference for the Codification of International Law, which was convened under the auspices of the League of Nations from 13 March to 12 April 1930 at The Hague, Netherlands, presented in its report 13 articles on territorial waters without a preamble.12 Neither did the International Law Commission (ILC), in its final report of 1956 requested by the General Assembly, 13 suggest a preamble for its Draft Articles concerning the Law of the Sea.14 Of the four conventions on the law of the sea adopted on 29 April 1958 at Geneva, Switzerland, only the Convention on the High Seas (High Seas Convention) and the Convention on Fishing and Conservation of the Living Resources of the High Seas are introduced by preambles. Both are short, each consists only of two preambular paragraphs. It is noteworthy that the preamble of the High Seas Convention enunciates that the United Nations Conference on the Law of the Sea, held at Geneva, ‘adopted the following provisions as generally declaratory of established principles of international law.’ The General Assembly, on the other hand, introduced its declarations and resolutions on the law of the sea with lengthy and often repetitive preambles. 15 The 8 UNCLOS III, 70th Plenary Meeting, UN Doc. A/CONF.62/SR.70 (1976), OR V, 71, 74 (para. 35). The great importance of the preamble was also stressed by the delegate from El Salvador, UNCLOS III, 69th Plenary Meeting, UN Doc. A/CONF.62/SR.69 (1976), OR V, 68, 69 (para. 21). 9 Long multilateral agreements adopted in long negotiations often require long preambles, see Suy (note 1), 256. 10 See Nordquist (note 6), 461 (MN 15(a)). 11 According to Suy, the ‘philosophy’ of the new Convention is reflected in Preambles 5 and 6: Suy (note 1), 258. 12 League of Nations, Acts of the Conference for the Codification of International Law, LN Doc. C.351.M.145.1930.V. (1930); League of Nations, Report of the Second Commission, League of Nations Publication V. Legal, LN Doc. C.230.M. I 17.1930.V. (1930.V.9.). 13 GA Res. 899 (IX) of 14 December 1954. The ILC is a committee of legal experts established by the General Assembly pursuant to Art. 13 (1)(a) Charter of the United Nations (UN Charter), from 1949 until 1956 it prepared a draft for the codification and progressive development of the law of the sea. 14 ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4. 15 See e. g. Declaration of Principles Governing the Sea-Bed and the Ocean Floor (note 5); GA Res. 37/66 of 3 December 1982; GA Res. 38/59 of 14 December 1983; GA Res. 39/73 of 13 December 1984; GA Res. 40/63 of

4

Lagoni

10–11

Preamble

participants of UNCLOS III followed a different approach with respect to the scope of the Preamble for the Convention. Delegations from developed countries initially preferred a nonpolitical, non-controversial and brief preamble,16 whereas the Group of 77, representing the majority of developing countries at the Conference, finally succeeded with their preference for a long preamble with eight substantial paragraphs. The discussion relating to the preambular paragraphs started late at the Conference. 17 10 UNCLOS III did not dwell on the preambles adopted by the Sea-Bed Committee, nor did the list of items to be considered by the Conference in 197418 mention a preamble at all. Further, there was still no mention of a preamble in the Informal Single Negotiating Text 19 or the Revised Single Negotiating Text,20 presented by President Amerasinghe in 1975 and 1976. During the fourth session in May 1976 the President proposed, however, to entrust the Chairman of the Drafting Committee with the preparation of a draft text of a preamble and the final clauses for negotiation and discussion.21 This would have been the usual practice of UN conferences, but in the ensuing discussion several delegations felt that there should be a preliminary debate before the drafting task was entrusted to anybody. Finally it was decided that the Secretary-General should prepare an alternative text ‘without giving the draft any political substance,’ on the basis of which the Chairman of the Drafting Committee would prepare a draft for consideration by the Conference, in consultation with the chairmen of the three main committees and the Rapporteur-General, with the assistance of the Secretariat. 22 In July 1976 the Secretary-General submitted a draft Preamble 23 with four paragraphs relating to the origin of the Conference, the interrelationship of the problems of ocean space, the purpose of the Convention and the continued application of customary international law. In the sixth session of the Conference, in 1977, a similar draft preamble that did not, however, mention the closely interrelated problems of ocean space was included in the Informal Composite Negotiating Text (ICNT)24 and thereafter in the revised ICNT of 1979.25 The development of the Preamble did not, however, come to an end there. At the beginning 11 of the fifth session in 1976 the President drew attention to General Assembly Resolutions 2750 C (XXV) and 3067 (XXVIII).26 Resolution 2750 C (XXV) decided, in 1973, to convene a conference on the law of the sea and enlarged the Sea-Bed Committee. In its preamble it enunciated, inter alia, the need for early and progressive development of the law of the sea, the fact that many of the present UN Member States did not take part in previous UN conferences on the law of the sea, the conviction that an equitable international regime for the sea-bed and the ocean floor would facilitate agreement at such conference and the affirmation that the needs and interests of all States should be accommodated, taking into account the special 10 December 1985; GA Res. 41/34 of 5 November 1986; GA Res. 42/20 of 18 November 1987; GA Res. 43/18 of 1 November 1988; GA Res. 44/26 of 20 November 1989. On the function of preambles to resolutions, which is different from those to treaties, see Suy (note 1), 263 et seq. 16 Second Committee UNCLOS III, United Kingdom: Draft Articles on the Territorial Sea and Straits, UN Doc. A/CONF.62/C.2/L.3 (1974), OR III, 183.These draft articles, for example, contain a preamble with one single paragraph. 17 As to the historic development of the Preamble at UNCLOS III, see also Nordquist (note 6), 455–461 (MN 6–14). 18 UNCLOS III, Organization of the Second Session of the Conference and Allocation of Items: Decisions Taken by the Conference at its 15th Meeting on 21 June 1974, UN Doc. A/CONF.62/29 (1974), OR III, 59. 19 UNCLOS III, Informal Single Negotiating Text (Part IV), UN Doc. A/CONF.62/WP.9 (1975), OR V, 111; UNCLOS III, Informal Single Negotiating Text (Part IV), UN Doc. A/CONF.62/WP.9/REV.1 (1976), OR V, 185. 20 UNCLOS III, Revised Single Negotiating Text, UN Doc. A/CONF.62/WP.8/REV.1/PART I (1976), OR V, 125. 21 UNCLOS III, 20th Meeting of the General Committee, UN Doc. A/CONF.62/BUR/SR.20 (1976), OR V, 92. 22 UNCLOS III, 70th Plenary Meeting, UN Doc.A/CONF.62/SR.70 (1976), OR V, 71, 75–76 (paras. 44, 53, 59). 23 UNCLOS III, Draft Alternative Texts of the Preamble and Final Clauses Prepared by the Secretary-General, UN Doc. A/CONF.62/L.13 (1976), OR VI, 125. 24 UNCLOS III, Informal Composite Negotiating Text, UN Doc. A/CONF.62/WP.10 (1977), OR VIII, 6. 25 UNCLOS III, Informal Composite Negotiating Text (Revision 1), UN Doc. A/CONF.62/WP.10/REV.1 (1979), 21. 26 UNCLOS III, Note by the President of the Conference, UN Doc. A/CONF.62/L.12/REV.1 (1976), OR VI, 122, 124 (paras. 22, 23 lit. (d)).

Lagoni

5

Preamble

12–13

interests and needs of developing countries, whether land-locked or coastal. Convening UNCLOS III, Resolution 3067 (XXVIII) of 16 November 1973 decided that the Conference should adopt a convention dealing with all matters relating to the law of the sea, bearing in mind that the problems of ocean space are closely related and need to be considered as a whole.27 After the resumed seventh session in 1978, Fiji proposed, on behalf of the Group of 77, a draft preamble which consisted of eight paragraphs. 28 The text pointed to the interest of mankind as a whole and the benefit for future generations in the peaceful and orderly uses of the seas and oceans (para. 1), the desirability of a universal convention (para. 2) and the need to establish a new international economic order safeguarding the special interests of the developing countries (para. 3). It further referred to the Declaration of Principles adopted by General Assembly Resolution 2749 (XXV) (para. 4), reaffirmed the common heritage principle (para. 5), believed in the maintenance and promotion of the international peace and security (para. 6), took the General Assembly Declaration on Friendly Relations into account (para. 7) and affirmed, for matters not expressly regulated in the present Convention, the continuing application of ‘other generally acceptable rules of international law not incompatible with the present Convention’ (para. 8). There is no reference to the protection and preservation of the marine environment. In addition, Mexico submitted three draft preambular paragraphs on the principle of the ‘common good of mankind,’ the benefit for future generations and the development of the new international economic order.29 12 Finally, commencing on 10 March 1980, the decisive discussions on the preamble took place at six meetings of the informal plenary, chaired by the President. 30 The majority of delegations favoured the Group of 77 draft submitted by Fiji in 1978 over the brief draft included in the revised ICNT of 1979. During the ensuing informal consultations the President prepared a non-controversial text on the basis of the Group of 77 draft, which was considered again by the informal plenary. In his report he noted with respect to the aim of the discussions: ‘It seemed clear that the preamble should be brief, non-controversial and non-polemical. It should not be excessively brief or devoid of political contents but should be sufficiently substantive as to cover the essential objectives and at the same time avoid controversial issues. The preamble would have to refer to the genesis of the Conference and its principle [sic] objectives, without dealing with the operative part of it.’31

13

In the course of two reviews the first two preambular paragraphs were transposed 32 and a new first paragraph was added33 in order to provide a ‘more grandiloquent beginning.’34 After minor textual modifications, not affecting its contents, the draft preamble was incorporated by consensus in the Draft Convention on the Law of the Sea (Informal Text)’35 of 27 August 1980, thereafter in the Draft Convention 36 of 28 August 1981, and finally in the Convention of 10 December 1982. 27

GA Res. 3067 (XXVIII) of 16 November 1973, para. 3. UNCLOS III, Draft Text of Preamble Proposed by Fiji on Behalf of the Group of 77, UN Doc. A/CONF.62/ L.33 (1978), OR IX, 188. 29 UNCLOS III, Mexico: Draft Article 1, UN Doc. A/CONF.62/L.24 (1978), OR IX, 181. 30 UNCLOS III, Report of the President on the Work of the Informal Plenary Meeting of the Conference on the Preamble, UN Doc. A/CONF.62/L.49/Add.2 (1980), OR XIII, 79. 31 Ibid. (para. 3). 32 UNCLOS III, Draft Preamble. Proposed by the President to Serve as a Basis for Negotiation, UN Doc. Preamble/1 (1980, mimeo.), reproduced in: Renate Platzo¨der (ed.), Third United Nations Conference on the Law of the Sea: Documents, vol. III (1982), 199; UNCLOS III, Draft Preamble Proposed by the President to Serve as a Basis for Negotiation (Revision 1), UN Doc. Preamble/1/Rev.1 (1980, mimeo.), reproduced ibid., 200. 33 UNCLOS III, Informal Proposal by the President of the Conference Draft Preamble, UN Doc. Preamble/1/ Rev.2 (1980, mimeo.), reproduced in: Platzo¨der (note 32), 201. 34 See Report of the President (note 30), 80 (para. 7). 35 UNCLOS III, Draft Convention on the Law of the Sea (Informal Text), UN Doc. A/CONF.62/WP.10/REV.3 (1980)xix. 36 UNCLOS III, Draft Convention on the Law of the Sea, UN Doc. A/CONF.62/L.78 (1981), OR XV, 172, 176 et seq. 28

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The development concerning the Preamble did not end, however, in 1982 with the signing 14 of the Final Act of the Conference. Before the Convention entered into force on 16 November 1994, on the 28 July 1994 States Parties adopted the Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 (1994 Implementation Agreement). This agreement was a reaction to a report of the UN Secretary-General on the results of the informal consultations among States, held from 1990 to 1994 on outstanding issues relating to Part XI and related provisions of the Convention (1994 Implementation Agreement/Preamble 4). Noting the ‘political and economic changes, including market-oriented approaches, affecting the implementation of Part XI’ (1994 Implementation Agreement/Preamble 5), States Parties considered the Agreement as the best means to facilitate universal participation in the Convention. Hence the Convention and the Implementation Agreement of 1994 are forming a treaty system and for purposes of interpretation the Preamble of the 1994 Implementation Agreement is forming the context of the Preamble of the Convention.

III. Elements 1. Title of the Convention and Preambular Paragraphs In diplomatic practice the title of a convention is considered as a part of its preamble, 37 15 and the title of a number of international conventions mentions the city in which the final act of the conference was signed.38 After the first substantial session of UNCLOS III in Caracas 1974, the Government of Venezuela invited the Conference to conduct the signing of the final act in the Venezuelan capital, and it was generally expected that the title of the new convention would include a reference to Caracas. In 1982, however, the Government withdrew its invitation to host the signing of the final act and the Conference decided, after a brief discussion upon a report of the Chairman of the Drafting Committee in September 1982, to maintain the title ‘United Nations Convention on the Law of the Sea.’ 39

2. Preamble 1 The stage setting first preambular paragraph alludes to the ‘desire’ of States Parties to settle 16 ‘all issues relating to the law of the sea’ in the Convention. This desire explains their common motivation and it determines their aim, but it does not imply an obligation to settle these issues. Any settlement shall take place ‘in a spirit of mutual understanding and co-operation,’ which corresponds with the character of modern international law as a law of co-operation. The inclusion of ‘all issues’ at the very beginning indicates that the Convention chose, ratione materiae, a comprehensive approach. These issues are undoubtedly of a legal nature but neither the Preamble nor the Convention itself provides a definition of them. Without a conclusive list of issues relating to the law of the sea, the Convention is not limited and accordingly open to future developments. Neither is it conclusive with respect to all present matters concerning the seas and oceans: Preamble 8 recognizes that there may be matters which are not regulated by this Convention.40 Preamble 1 also enunciates the ‘historic significance’ of the Convention as an important 17 contribution to the maintenance of peace, justice and progress ‘for all peoples of the world.’ The difficult term ‘peoples’, which is also used in Preamble 7, relates to the population of a 37

See Treviranus (note 4), 1097. For example the second preambular paragraph of the 1958 Convention on the High Seas states that the (first) United Nations Conference on the Law of the Sea was held ‘at Geneva from 24 February to 27 April 1958’. 39 UNCLOS III, 184th Plenary Meeting, UN Doc. A/CONF.62/SR.184 (1982), OR XVII, 4, 7 (paras. 38–39). The title was agreed upon a proposal of Mr. Caflisch of Switzerland. 40 See infra, MN 39–40. 38

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certain territory. It has to be distinguished from the term ‘nations’ mentioned in Preamble 7 which stands for States.41 ‘Peoples’ is normally used in international law in connection with the principles of equal rights and self-determination set forth in Art. 1 (2) of the UN Charter. But, in contradistinction to the Charter, both preambular paragraphs refer to ‘all peoples of the world’. This indicates that peoples not organized in States are also included.

3. Preamble 2 While Preamble 1 is forward looking, the second preambular paragraph recalls the past. It does not explain, however, which ‘developments’ since the Geneva Conferences of 1958 and 1960 have accentuated the need for a new Convention. But reasons of a legal nature for such need may easily be identified by comparing the law of the sea conventions of 1958 with the present convention. On a global scale one can point to: the extended jurisdiction of the coastal States over certain maritime areas adjacent to their coast (see, e. g. � Part V on the exclusive economic zone (EEZ)); the issues of the breadth of the territorial sea (� Part II) and the limits of fishing zones (� Art. 61 et seq.; Art. 116 et seq.); the determination of the outer limit of the continental shelf (� Art. 76); the status of the sea-bed and ocean floor and its natural resources beyond the limits of national jurisdiction (� Part. XI); the protection and preservation of the marine environment (� Part XII); and the settlement of disputes (� Part XV), which was only marginally and insufficiently regulated in the Optional Protocol of Signature of 1958. Issues of a more sectional or regional nature, such as the passage through straits used for international navigation (� Part III), the jurisdictional claims of archipelagic States (� Part IV), efficient conservation of the living resources of the high seas (� Part VII, Section II), the access of land-locked States to the sea (� Part X) or marine scientific research (� Part XIII) were also important and required regulation. 19 But also developments of a political nature since 1960 gave rise to the need for a new and ‘generally acceptable’ law of the sea convention.42 The majority of States achieved independence through the decolonization movement of the 1960s. They had not participated in the previous United Nations conferences on the law of the sea. 43 Considering the ‘old’ law of the sea as a kind of colonial inheritance, many developing countries shared a critical attitude towards the law of the sea conventions of 1958. Their extensive participation as the ‘Group of 77’ at UNCLOS III, with its various informal negotiating groups and their co-ordinated political influence upon the Conference, made the new Convention in their view ‘generally acceptable.’ 20 The adoption of the 1994 Implementation Agreement, which was justified by political and economic changes, proves that the Convention should also in future be open for further review, which may be necessary in order to cope with major factual developments. Reasons for future review or amendment of the Convention might be: substantial effects of a climate change in the ocean space, for example in ice-covered regions, or issues concerning genetic resources or piracy. Besides that, the Convention does not provide for certain principles of modern international law as set forth in the Rio Declaration on Environment and Development of 1992,44 such as the principle of sustainable development, the precautionary approach45 or the polluter pays principle. Recalling that the Convention ‘sets out the legal framework within which all activities in the oceans and seas must be carried out, and with 18

41 See Karl J. Partsch, Nations, Peoples, in: Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, vol. III (1997), 511, 512. 42 Neither does Preamble 2 mention these reasons. Slightly more explicit, however, is the fifth preambular paragraph of the 1994 Implementation Agreement which points to ‘political and economic changes, including market-oriented approaches,’ as reasons for a review of Part XI of the Convention. 43 See GA Res. 2750 C (XXV) of 17 December 1970, sixth preambular paragraph. 44 UNCED, The Rio Declaration on the Environment and Development, UN Doc. A/CONF.151/5/REV.1 (1992), ILM 31, 874 (Principles 1, 15, 16). 45 For further analysis on the precautionary approach in UNCLOS, see Rosemary Rayfuse, Precaution and the Protection of Marine Biodiversity in Areas beyond National Jurisdiction, in: Freestone (ed.), The 1982 Law of the

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which these activities should be consistent’ (UN GA Res. 54/33), in 2000 the UN General Assembly established the Open-Ended Informal Consultative Process on Oceans and the Law of the Sea. In order to maintain the integrity of the Convention, on an annual basis the Consultative Process reviews the report of the Secretary-General on developments in ocean affairs and the law of the sea, and identifies areas where co-ordination and co-operation are to be enhanced.

4. Preamble 3 From a hydrological, geological, biological or meteorological perspective, the seas and 21 oceans form natural units which are linked to each other through currents, winds and climatic conditions. Measures undertaken in one part of the sea may affect other parts. Accordingly the legal problems of ocean space are also closely interrelated, as is stated in the third preambular paragraph. One kind of use of ocean space often affects others of the same or a different kind. As examples one may mention the effects of overfishing of one species on associated or dependent species, the construction of wind farms on navigation and fishing, or the gradual pollution of the sea from local or regional land-based sources. The brief Preamble 3 appears to be clear and simple. But it is silent on the nature and possible 22 solutions to the problems it refers to. Resolutions of the UN General Assembly 46 on the same issues similarly fail to provide solutions. Nevertheless, it was rightly observed in this context, in the Land Reclamation case before the International Tribunal for the Law of the Sea (ITLOS), that ‘the Law of the Sea Convention takes an integrated approach to the issues it covers.’ 47 However, although this again fails to answer the question what an ‘integrated approach’ to these interrelated problems could be, it seems to indicate that problems of ocean space should not be considered under the Convention as isolated from any other problems of this space.

5. Preamble 4 As already mentioned, Preamble 4 is rightly regarded in many respects as ‘the most 23 important and the most ‘substantive’ of the preambular paragraphs’48 because it recognizes the desirability of establishing through the Convention ‘a legal order for the seas and oceans.’ Other preambular paragraphs are to be read in conjunction with Preamble 4: making ‘all issues relating to the law of the sea’ subject to a legal order is certainly a contribution to peace, justice and progress, to which Preamble 1 refers. This legal order fulfils the need for a ‘new and generally acceptable Convention on the law of the sea’ mentioned in Preamble 2, and it shall take into account the closely interrelated problems of ocean space (Preamble 3). Judge LAING, in his Separate Opinion to the Judgment of ITLOS in the M/V ‘Saiga’ (No. 2) Case, recalled: ‘the objects and purposes of the Convention mentioned in paragraph 5 of the Preamble, that “the achievement of [the] goals [set forth in preambular paragraph 4] will contribute to the realization of a just and equitable international order which takes into account the interests and needs of mankind as a whole”[…]’.49 Sea Convention at 30 (2013), 99–107; Czybulka on Art. 192 MN 3, Art. 194 MN 12, 32 and Art. 196 MN 9, 19; Stephens on Art. 198 MN 13, Art. 199 MN 8 and Art. 201 MN 5. 46 See GA Res. 2750 C (XXV) of 17 December 1970, 4th preambular paragraph, in which the GA decided to convene a conference on all matters concerning the law of the sea, and GA Res. 3067 (XXVIII) of 16 November 1973, para. 3, convening UNCLOS III. 47 ITLOS, Case Concerning Land Reclamation by Singapore in and around the Straits of Jahor (Malaysia v. Singapore), Request for Provisional Measures, Public Sitting of 25 September 2003, Doc. ITLOS/PV.03/02/Corr.1 (2003), 15. 48 See Nordquist (note 6), 461. 49 ITLOS, The M/V ‘Saiga’ (No.2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment of 1 July 1999, Separate Opinion Judge Laing, para. 60, available at: http://www.itlos.org/fileadmin/itlos/documents/cases/ case_no_2/merits/Separate.Laing.01.07.99.E.pdf.

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The common heritage of the Area envisaged in Preamble 6 is an important structural element of the legal order for the seas and oceans which will contribute to strengthening the goals set forth in Preamble 7. Finally, Preamble 8 ensures the completeness of this legal order in international law. Hence, despite its organization into different preambular paragraphs, the whole Preamble presents itself in the light of the Preamble 4 as a uniform instrument. 24 A legal order is essentially a coherent system of rules and regulations in which every part is in a particular place. But what does the concept of a ‘legal order’ mean with regard to the Convention through which, according to Preamble 4, it is established? As it consists of the rules and regulations provided in the Convention and the Agreement Relating to the Implementation of Part XI, this legal order is international in its nature and conventional in origin. The concept of the legal order may serve as a possible topos in the interpretation of the Convention and of the law of the sea in general. As it shall encompass ‘all issues relating to the law of the sea’ (Preamble 1) it aims at universal participation in, and uniform application of, the whole Convention on a global scale.50 In short, the legal order for the seas and oceans stands for a comprehensive system of ocean governance. Its establishment distinguishes the Convention from the Geneva conventions on the law of the sea of 1958, which regulate separate and independent issues of the law of the sea in four conventions and an optional protocol. 25 A legal order for the seas and oceans is necessarily a complex legal phenomenon. It defines the different maritime zones, determines the jurisdiction of States with regard to the seas and oceans, provides particular legal regimes51 and determines the legal status of areas and things in ocean space.52 These achievements are not limited to situations in which the Convention applies; being of a universal nature they apply generally in the whole law of the sea and, where appropriate, also in maritime law. Thereby the legal order has two distinctive features: an almost comprehensive regime of dispute settlement between the States Parties to the Convention set forth in Part XV and the ultimate goal of a general primacy of the Convention over other treaties and agreements of the States Parties envisaged in Art. 311 and Art. 237. Both features are, however, not without exceptions. 26 According to rules of conflict of international obligations agreed by the States Parties, the Convention shall prevail, as between States Parties, over the 1958 Geneva conventions (� Art. 311 (1)). This rule resembles, mutatis mutandis, Art. 103 UN Charter, but the similarity ends when it comes to other agreements. Rights and obligations of States Parties arising from other agreements shall not be affected by the Convention if they are ‘compatible with this Convention’ and if they ‘do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention’ (� Art. 311 (2)). But the Convention does not regulate the effect of a violation of these conditions on the conflicting norms. With respect to obligations arising under other conventions on the protection and preservation of the marine environment, particular rules of conflict of obligations are contained in Art. 237. Existing specific obligations assumed by States under special conventions and agreements ‘should be carried out in a manner consistent with the general principles and objectives of this Convention’ (� Art. 237 (2)), whilst future agreements ‘may be concluded in furtherance of the general principles set forth in this Convention’ (� Art. 327 (1)). In the same vein a court or tribunal having jurisdiction over compulsory procedures which entail binding decisions under the Convention shall apply other rules of international law only if they are not incompatible with the Convention (�Art. 293 (1)). In addition, there shall be no derogation from ‘the basic principle relating to the common heritage of mankind set forth in article 136’ through agreement between the States Parties or with a third party (� Art. 311 (6)).53 50

Accordingly Preamble 4 sets forth a programme rather than stating a given legal situation. See e. g. the ‘specific legal regime of the exclusive economic zone’, Art. 55; the ‘regime of islands’, Art. 121. 52 See Arts. 2, 34, 35, 49, 60 (8), 92, 135, 137. 53 See infra, MN 34–35. 51

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As it shall provide a comprehensive legal order for the seas and oceans, the Convention is 27 called a ‘constitution for the oceans’ – most prominently by the last President of UNCLOS III, Ambassador TOMMY KOH.54 More recently a thorough analysis of its constitutional nature was provided from the point of view of international relations.55 It arrives at the conclusion that mainly ‘because of its standing in a superior relationship to other treaties in this subject area and its universality’ the Convention stands for a constitutional regime. 56 But even if it is metaphorically used, this designation could be misleading with regard to its effect on conflicting treaty rules or agreements. 57 A ‘constitution’ in the proper sense of the law of modern States is a legal instrument which normally is adopted by a constitutional assembly with a particular legitimation for this act. It forms a comprehensive system of governance within a State. In the hierarchy of domestic norms a constitutional principle or rule is of a higher rank. A law is generally null and void if it violates the constitution. In contradistinction to these criteria, UNCLOS III was a diplomatic conference, not a constitutional assembly with a supreme law making power. The Convention was adopted as an international treaty, not as a constitution, which internationally would require the consent of all sovereign States to be constitutionally bound. States Parties are legally bound by the Convention, they are not subject to a constitution. A provision of a convention or an agreement, which cannot be squared with the Convention, could not be applied in the given situation. But it is neither null nor void. It still remains in existence and may well be applied in other situations. Hence, the effect of a violation of the Convention is not a lacuna in the system of norms, even if the common heritage principle is violated. 58 Preamble 4 recognizes that the legal order established by the Convention is taking ‘due 28 regard for the sovereignty of all States,’ including the sovereign rights of coastal States in maritime areas under their jurisdiction. Further it describes the achievements which the envisaged legal order seeks to facilitate: First of all it mentions ‘international communication’ i. e. freedom of navigation and overflight, and the laying of submarine cables and pipelines (� Art. 87 (1); Art. 58 (1)). It goes on to mention the promotion of the ‘peaceful uses of the seas and oceans’ which is defined in Art. 301, whilst the phrase ‘peaceful purposes’ is used in Arts. 88, 141 and 240 (a). In 1976 the latter formula was the subject of a debate during the fourth session of UNCLOS III59 with the result that it would not preclude military activities at sea in general,60 such as the innocent passage of warships or, beyond the territorial sea, naval manoeuvres in times of peace. The preambular paragraph then mentions the ‘equitable and efficient utilization of their resources’ which refers to living and non-living resources, 61 whereas the following phrase ‘the conservation of their living resources’ implies the sustainable use of straddling fish stocks and highly migratory fish stocks on the basis of the precautionary approach as provided in the UN Fish Stocks Agreement (UNFSA) of 1995 54 Tommy T.B. Koh, A Constitution for the Oceans, in: UN, The Law of the Sea: Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index (1983), xxxiii; see also Nordquist (note 6), 461 (MN 15 (a)), stating the fourth preambular paragraph ‘sets the Convention up as a constitution, so to speak […]’. 55 See Shirley V. Scott, The LOS Convention as Constitutional Regime for the Oceans, in: Alex G. Oude Elferink (ed.), Stability and Change in the Law of the Sea: The Role of the LOS Convention (2005), 9–38. The author analyses the ‘LOS Convention as a Constitutional Regime’, inter alia, in the light of the regime theory, 12, 20. 56 Ibid., 20. 57 See Rainer Lagoni, Commentary (The LOS Convention as an International Regime: A Political Science Perspective), in: Elferink (note 56), 49 et seq. 58 See infra, MN 32–35. 59 UNCLOS III, 66th Plenary Meeting, UN Doc. A/CONF.62/SR.66 (1976), OR V, 54; UNCLOS III, 67th Plenary Meeting, UN Doc. A/CONF.62/SR.67 (1976), OR V, 56; UNCLOS III, 68th Plenary Meeting, UN Doc. A/CONF.62/SR.68 (1976), OR V, 63. 60 See Nordquist (note 6), 461 (MN 15 (b)). 61 As to such utilization of non-living resources, see Vasco Becker-Weinberg, The Internationalization of Marine Natural Resources in UNCLOS, in: Rainer Lagoni et al. (eds.), Recent Developments in the Law of the Sea (2010), 9.

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which implements, between its States Parties, the Convention. Preamble 4 finally refers to the ‘protection and preservation of the marine environment,’ which is regulated in detail in Part XII of the Convention. The ‘study’ of the marine environment refers both to the monitoring of the risks and the effects of pollution (� Art. 204) and to marine scientific research in general (� Part XIII).

6. Preamble 5 According to Preamble 5, States Parties are to bear in mind that the achievement of the goals mentioned in Preamble 4 ‘will contribute to the realization of a just and equitable international economic order.’ This is again a statement of the political goals which the developing countries had been striving for since the 1970s.62 Preamble 5 is the most political preambular paragraph, aiming at the realization of a just and equitable international economic order and thereby taking into account, inter alia, the special interests and needs of developing countries. Despite the review of Part XI by the 1994 Implementation Agreement concerning some of these interests relating to the Area, others remain unaffected under the Convention whilst new ones are provided in the UNFSA of 1995. Preamble 5 differentiates between the needs and interests of mankind as a whole and, ‘in particular, the special interests and needs of developing countries.’ There shall be no difference with respect to the preferences between coastal or land-locked developing countries. But the distinction between developed and developing countries was considered to be essential for a new international economic order. Taking the different needs and interests in Preamble 5 ‘into account,’ the States Parties realized these differences, but they did not restate any obligation with regard to them in the Preamble. Instead the principle of preferential treatment of developing countries was embodied in the operative part of the Convention, in particular with regard to mining in the Area in Part XI and in the Annexes III and IV. However, taking marketoriented approaches into account63 in order to make mining activities in the Area economically feasible, the 1994 Implementation Agreement reviewed and modified several provisions which endorsed this principle. Notwithstanding this, the principle mentioned in Preamble 5 is still, to a certain extent, maintained in Part XI and its Annexes. 30 The principle of preferential treatment of developing countries is also taken into account in other Parts of the Convention, as e. g. in the distribution of payments and contributions from the exploitation of the outer continental shelf (� Art. 82 (4)), the transfer of marine technology beyond the field of sea-bed mining in the Area (� Arts. 271–274; Art. 276 (1)), 64 the assistance in cases of marine pollution (� Art. 202; Art. 203; Art. 207 (4)) and in marine scientific research (� Art. 244 (2); Art. 276 (1)). With regard to fisheries, it is provided for both in the Convention and in the UNFSA.65 In particular Preamble 8 of this agreement recognizes ‘the need for specific assistance, including financial, scientific and technological assistance’ for developing States. Hence, the idea of realizing a just and equitable international economic order is still present in the Convention and in the UNFSA. Other developments, however, concerning a just and equitable international economic order, in particular the related principle of common but differentiated responsibility in international law recognized in Principle 7 of the 1992 Rio Declaration on Environment and Development, have not yet been embodied in the Convention. 29

62 A reference to ‘the relevant United Nations resolutions’ contained in the Fiji Draft (note 28) was deleted from the final text of the Preamble because the word ‘relevant’ was unspecific and several resolutions were contested; for further analysis, see Nordquist (note 6), 462 (MN 15 (c)). 63 Preamble 5 of the 1994 Implementation Agreement reads: ‘Noting the political and economic changes, including market-oriented approaches, affecting the implementation of Part XI’. 64 Further, see UNCLOS III, Final Act of the United Nations Conference on the Law of the Sea, UN Doc. A/ CONF.62/121 (1982), OR XVII, 139, 149 (Annex VI, Resolution on Development of National Marine Science Technology and Ocean Service Infrastructures). 65 Arts. 61 (3), 62 (2) and (3), 69 (3), 70 (4), 119 (1) (a) UNCLOS and Arts. 24–26 UNFSA.

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7. Preamble 6 Unlike the other preambular paragraphs, Preamble 6 does not relate to the Convention as a whole, but only to the sea-bed and ocean floor and subsoil thereof beyond the limits of national jurisdiction (the ‘Area’).66 Preamble 6 is the only preambular paragraph which mentions a resolution of the UN General Assembly, Resolution 2749 (XXV) of 17 December 1970, serving to underline its importance. The resolution, according to its title, embodies ‘Principles Governing the Sea-Bed and Ocean Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction.’ At the time of its adoption the status of the sea-bed and ocean floor, including its subsoil, where vast amounts of natural resources are expected was still contested.67 The first and foremost legal principle solemnly declared in Preamble 6 is the common heritage principle. The concept of the ‘common heritage of mankind’ had been put forward by Ambassador Arvid Pardo of Malta in 1967, when he brought the sea-bed issue to the attention of the General Assembly.68 The principle was included in the 1969 ‘moratorium’ resolution69 and later in the 1970 Declaration of Principles. In 1994 it has been reaffirmed in the second preambular paragraph of the 1994 Implementation Agreement. According to the common heritage principle, exploration and exploitation of the resources of the Area shall be carried out for the benefit of mankind as a whole ‘irrespective of the geographical location of States’ (� Art. 140), which means: also for land-locked or geographically disadvantaged States (see � Art. 148). In addition, Resolution 2749 (XXV) mentions other principles relating to activities in the Area; such as the promotion of scientific research, the prevention of pollution and the conservation of natural resources, the interests and rights of coastal States, State responsibility and dispute settlement. Therefore the States Parties desired ‘to develop’ the principles embodied in Resolution 2749 (XXV), a formulation which replaced the words ‘to give effect to’ the respective principles which originally appeared in the draft preamble prepared by the President. The President explained in a note that the word ‘develop’ would not affect the contested juridical status of said declaration.70 The principle of the common heritage of mankind is set forth in Art. 136 and the legal status of the Area and its resources are defined in Art. 137. The relevance of this principle in the Convention is underlined by the fact that the States Parties agreed in Art. 311 (6) ‘that there shall be no amendment 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.’ Hence any derogation from, or violation of, the principle would be a violation of Art. 311 (6), incurring the normal consequences of the breach of a treaty obligation. 71 In contrast to this, Chile submitted, at UNCLOS III, an informal proposal to insert an article entitled ‘jus cogens’ in order to declare the common heritage principle as being a peremptory norm of general international law in the sense of Art. 53 VCLT. 72 Any provision violating a jus cogens norm is rendered null and void.73 The Chilean proposal was not 66

Art. 1 (1)(1) UNCLOS. It was adopted by vote: 108 in favour, none against, with 14 abstentions. 68 ‘[…] the time has come to declare the sea-bed and ocean floor a common heritage of mankind’: Statement of Mr. Pardo (Malta): GA, 1515th Meeting of the First Committee, UN Doc. A/C.1/PV.1515 (1967), GAOR 22nd Sess., 1 (paras. 3 et seq.); GA, 1516th Meeting of the First Committee, UN Doc. A/C.1/PV.1516 (1967), GAOR, 22nd Sess., 1–3. 69 GA Res. 2574 D (XXIV) of 15 December 1969. The resolution was contested: 62 in favour, 28 against, with 28 abstentions. 70 UNCLOS III, Report of the President on the work of the informal plenary meeting of the Conference on the preamble, UN Doc. A/CONF.62/L.49/Add. 1 (1980), OR XIII, 79. 71 See Art. 60 VCLT. 72 See Myron H. Nordquist/Shabtai Rosenne/Louis B. Sohn (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. V (1989), 241 (MN 311.9). 73 See Arts. 53 and 71 VCLT. 67

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adopted, however. Furthermore, it seems doubtful that the principle has reached peremptory status in the meaning of Art. 53 VCLT. At any rate, the 1994 Implementation Agreement has not affected the common heritage principle in its review of the international machinery for implementation, embodied in Part XI of the Convention. The Preamble of the Agreement reaffirmed, without mentioning Resolution 2749 (XXV), that the Area and its resources are the common heritage of mankind.74

8. Preamble 7 According to Preamble 7 the States Parties believe that the ‘codification and progressive development’75 of the law of the sea achieved by the Convention will contribute to the strengthening of peace, security, cooperation and friendly relations among all nations. Similar clauses are contained in the preambles of other typical codification treaties, for example in the seventh preambular paragraph of the VCLT.76 ‘Codifying’ generally means systematically arranging existing legal norms (i. e. principles and rules) into a code, viz. the Convention. The legal principles and rules existing at the time of UNCLOS III were embodied at the global level mainly in the 1958 Geneva conventions on the law of the sea and in some maritime conventions.77 But even when transposed from an existing convention for incorporation into the Convention, many rules had to be amended or modified in order to fit into the Convention. An example is the principle of the freedom of the high seas, previously codified in Art. 2 Convention on the High Seas78 which has been extended79 and partly made subject to other Parts of the Convention in Art. 87 (1) (c)–(f) UNCLOS. Similarly rules of customary law, as evidenced by general practice accepted as law, 80 and general principles of law recognized by civilized nations,81 of which even a generally accepted text may not exist, are subject to modification if they are systematically incorporated into a convention. 37 As a consequence it can occasionally be difficult to distinguish elements of codification from progressive development within a provision; and it may also be difficult to identify which parts of the Convention could be considered as codification and which are progressive development. Nevertheless, this distinction is of hardly any practical relevance between the States Parties because the binding provisions of the Convention and its Annexes are of a conventional nature. They apply only inter partes because they are agreed between the States Parties. A customary principle or rule of international law with the same content which may exist beside the Convention, will not generally have any bearing upon the relations between the States Parties, if the respective provision of the Convention constitutes a lex specialis. A distinction between codification and progressive development may be of some relevance, however, vis-a`-vis third States which are not bound by the Convention.82 A general practice 36

74 Preamble 2 of the 1994 Implementation Agreement reads: ‘Reaffirming that the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction (hereinafter referred to as “the Area”), as well as the resources of the Area, are the common heritage of mankind’. 75 The respective mandate of the General Assembly set forth in Art. 13 (1)(a) UN Charter has a slightly different wording: ‘progressive development of international law and its codification’. 76 The text reads: ‘Believing that the codification and progressive development of the law of treaties achieved in the present Convention will promote the purposes of the United Nations […].’ 77 E. g. the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties of 29 November 1969; the Convention on the Prevention of Marine Pollution by Dumping of Waste and Other Matter of 29 December 1972; the International Convention for the Safety of Life at Sea of 1974; or the International Convention for the Prevention of Pollution from Ships of 2 November 1973 with Protocol of 17 February 1978. 78 The States Parties to this Convention desiring ‘to codify the rules of international law relating to the high seas’, first preambular paragraph of the Convention on the High Seas. 79 The freedom to construct artificial islands and installations and the freedom of scientific research were added in Art. 87 (1) UNCLOS. 80 Art. 38 (1)(b) ICJ Statute. 81 Art. 38 (1)(c) ICJ Statute. 82 Art. 34 VCLT.

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Preamble

conducted under the Convention may indeed give rise to new or changed customary principles or rules of international law. For example, the right of every State to establish the breadth of its territorial sea up to 12 NM (� Art. 3) or the right to establish an EEZ of 200 NM (� Art. 57), no doubt, are already recognized as being proper candidates for being customary rules of international law. According to Preamble 7, States Parties believe that the codification and progressive 38 development of the law of the sea will contribute to the strengthening of certain purposes and principles.83 These are no special principles of the law of the sea but general purposes and principles of the UN. Preamble 7 partially deviates, however, from the formulations of the Charter. It states these principles, for example, with respect to “all nations” without differentiating between nations and States Parties to the Convention, whereas the UN Charter speaks of nations and Member States.84 The Preamble mentions the following principles: The maintenance of international peace and security which pursuant to Art. 1 (1) is a purpose of the UN Charter. Co-operation set forth in Art. 1 (3) UN Charter is repeated like a leitmotiv in almost all Parts of the Convention. The development of friendly relations among nations is envisaged in Art. 1 (2) UN Charter. The draft preamble proposed by Fiji on behalf of the Group of 77 in 197885 referred to the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations;86 but the reference to this contested resolution was deleted in the President’s draft of 1980.87 The principle of justice applies in Art. 1 (1) UN Charter to the adjustment or settlement of international disputes or contested situations, whilst Preamble 7 generally refers to international justice among nations. The principle of equal rights is linked in Art. 1 (2) UN Charter to the self-determination of peoples, but there is no such link in Preamble 7. Both terms88 are used in this preambular paragraph, but it is not clear from the wording of its text whether this principle applies to nations or to peoples. Apart from that, Preamble 7 does not mention the settlement of international disputes (Art. 1 (1) UN Charter) or human rights (Art. 1 (3) UN Charter). Instead it refers generally to ‘the Purposes and Principles’ set forth in Arts. 1 and 2 of the Charter. This sweeping reference shows again (as already mentioned in Preamble 1) that the Convention shall be open for ‘all issues’ which relate to the law of the sea. At the same time it establishes a kind of systematic link between the Convention and the Charter.89

9. Preamble 8 The statement that ‘matters not regulated by this Convention continue to be governed by the 39 rules and principles of general international law’ is a habitual formula of many multilateral treaties.90 The formulation ‘general international law’ is more comprehensive than ‘international custom’ in the sense of Art. 38 (1)(b) ICJ Statute or ‘customary international law’ 91 which is expressly mentioned, for example, in the eighth preambular paragraph of the VCLT. 92 83 With regard to the envisaged purposes, Preamble 7 is again formulated along the lines of the seventh preambular paragraph of the VCLT. 84 See the principle of sovereign equality of all Members of the UN Organization in Art. 2 (2) UN Charter. 85 See Draft Text of Preamble Proposed by Fiji (note 28). 86 GA Res. 2625 (XXV) of 24 October 1970, adopted by consensus; see also Nordquist (note 6), 465 et seq. (MN 15 (f)). 87 See Draft Preamble/1 (note 32); Draft Preamble/1/Rev.1 (note 33). 88 See supra, MN 17; Partsch (note 41). 89 Scott perceives the role of the Convention as ‘supplementing the UN Charter’ and regards it as ‘in one sense providing by-laws to the Charter’ whilst ‘it could in another sense be considered a constitution of its own right, albeit one subsidiary to the UN Charter’ (Scott (note 56),19, 20). 90 See e. g. Preamble 10 UNSFA, adding after Convention: ‘or by this Agreement’. 91 See Suy (note 1), 258. 92 ‘Affirming that the rules of customary international law will continue to govern questions not regulated by the provisions of the present Convention.’

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40

Whether or not a matter is regulated by the Convention has to be identified by interpretation of the relevant provisions of the Convention, in accordance with Arts. 31–33 VCLT. A nonregulated matter may also be a particular aspect of an issue which cannot be resolved by interpretation. A matter which is not regulated by the Convention, as e. g. the preservation of marine biodiversity or measures against maritime terrorism beyond the territorial sea, but regulated in other conventions or agreements is, of course, not subject to customary law if the respective convention or agreement applies between the relevant States Parties. 40 The purpose of Preamble 8 is to avoid lacunae in the law93 and to complement the legal order for the seas and oceans envisaged in Preamble 4.94 One should be aware, however, that the rules and principles of customary international law occasionally may not be sufficient to govern all matters which are not regulated by the Convention. In this situation only an agreement between the States concerned could produce the necessary regulation. Finally one may ask whether the legal situation concerning the Convention would be different without Preamble 8. Despite the general assumption that redundancy of a rule cannot be presumed, the answer would be in the negative because the applicability of customary international law to a matter not regulated by the Convention would in itself rest upon a principle of general international law.

93

See Suy (note 1), 258; as to the development of Preamble 8 at UNCLOS III, see Nordquist (note 6), 464 et

seq.

94

16

See supra, MN 23–28.

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PART I INTRODUCTION Article 1 Use of terms and scope 1. For the purposes of this Convention: (1) “Area” means the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction; (2) “Authority” means the International Seabed Authority; (3) “activities in the Area” means all activities of exploration for, and exploitation of, the resources of the Area; (4) “pollution of the marine environment” means 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 fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities; (5) (a) “dumping” means: (i) any deliberate disposal of wastes or other matter from vessels, aircraft, platforms or other man-made structures at sea; (ii) any deliberate disposal of vessels, aircraft, platforms or other man-made structures at sea; (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 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. 2. (1) “States Parties” means States which have consented to be bound by this Convention and for which this Convention is in force. (2) This Convention applies mutatis mutandis to the entities referred to in article 305, paragraph l(b), (c), (d), (e) and (f), which become Parties to this Convention in accordance with the conditions relevant to each, and to that extent “States Parties” refers to those entities. Bibliography: Patricia Birnie/Alan Boyle/Catherine Redgwell, International Law and the Environment (3rd edn. 2009); Robin R Churchill, The 1982 United Nations Convention on the Law of the Sea, in: Donald R. Rothwell/Alex G. Oude Elferink/Karen N. Scott/Tim Stephens, The Oxford Handbook of the Law of the Sea (2015), 24–45; Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); Masahiro Igarashi, Associated Statehood in International Law (2002); Kim Jung-Eun, Implications of Current Developments in International Liability for the Practice of Marine Geo-Engineering Activities, Asian JIL 4 (2014), 235–260; Michael W Lodge, The Deep Seabed, in: Donald R. Rothwell/Alex G. Oude Elferink/Karen N. Scott/Tim Stephens, The Oxford Handbook of the Law of the Sea (2015), 226–253.; Rona´n Long, The European Union and Law of the Sea Convention at the Age of 30, in: David Freestone (ed.), The 1982 Law of the Sea Convention at 30: Successes, Challenges and New Agendas (2013),

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37–47; Nele Matz-Lu¨ck, Underwater Pollution by Vessel Noise: A European Perspective, in Erik Franckx/Philippe Gautier (eds.), The Exercise of Jurisdiction over Vessels: New Developments in the Fields of Pollution, Fisheries, Crimes at Sea and Trafficking of Weapons of Mass Destruction (2010), 97–110; Bjarni Ma´ r Magnu´sson, The Continental Shelf Beyond 200 Nautical Miles (2015); Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Shigeru Oda, A Commentary on the UN Convention on the Law of the Sea (in Japanese), vol. I (1985); Irini Papanicolopulu, The European Union and the Regulation of Underwater Noise Pollution, in: Davor Vidas/Peter Johan Schei (eds.), The World Ocean, in Globalisation: Climate Change, Sustainable Fisheries, Biodiversity, Shipping, Regional Issues (2011), 457–471; M. Christopher W. Pinto, The Common Heritage of Mankind, RCADI 361 (2012) 9–130; Philippe Sands/Jacqueline Peel (with Adriana Fabra/Ruth MacKenzie), Principles of International Environmental Law (3rd edn. 2012); Donald R. Rothwell/Tim Stephens, The International Law of the Sea (2nd edn. 2016); Karen N. Scott, Exploiting the Oceans for Climate Change Mitigation: Case Study on Ocean Fertilisation, in: Clive H. Schofield/ Seokwoo Lee/Moon-Sang Kwon (eds.), The Limits of Maritime Jurisdiction (2014), 653–677; Karen N. Scott, International Regulation of Undersea Noise, ICLQ 53 (2004), 287–323; Suzette V. Suarez, The Outer Limits of the Continental Shelf: Legal Aspects of Their Establishment (2008); Signe Veierud Busch, Establishing Continental Shelf Limits Beyond 200 Nautical Miles by the Coastal State: A Right of Involvement for Other States? (2016); Yoshifumi Tanaka, The International Law of the Sea (2nd edn. 2015); George K. Walker (ed.), Definitions for the Law of the Sea: Terms Not Defined by the 1982 Convention (2012) Documents: Bert Metz/Ogunlade Davidson/Heleen de Coninck/Manuela Loos/Leo Meyer (eds.), IPCC Special Report on Carbon Dioxide Capture and Storage (2005); Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Res. 1514 (XV) of 14 December 1960; GESAMP, Environmental Capacity: An Approach to Marine Pollution, Reports and Studies No. 30 (1986); 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); IMO Res. LP.3(4) of 30 October 2009 on the Amendment to Article 6 of the London Protocol; IMO Res. LP.4(8) of 18 October 2013 on the Amendment to the London Protocol to Regulate the Placement of Matter for Ocean Fertilisation and Other Marine Geoengineering Activities; ISA, Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area, ISA Doc. ISBA/6/A/18 (2000), Annex; ISA, Regulations on Prospecting and Exploration for Polymetallic Sulphides in the Area, ISA Doc. ISBA/16/A/12/REV.1 (2010), Annex; ISA, Regulations on Prospecting and Exploration for Cobalt-rich Ferromanganese Crusts in the Area, ISA Doc. ISBA/18/A/11 (2012), Annex; UN DOALOS, The Law of the Sea: Baselines: An Examination of the Relevant Provisions of the United Nations Convention on the Law of the Sea (1989) Cases: Indus Waters Kinshenganga Arbitration (Pakistan v. India), Partial Award, 18 February 2013, available at: http://www.pca-cpa.org/showpage.asp?pag_id=1392; ITLOS Seabed Disputes Chamber, Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Advisory Opinion of 1 February 2011, ITLOS Reports (2011), 10; ITLOS, Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional Measures, Order of 27 August 1999, ITLOS Reports (1999), 280 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Use of Terms and Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘Area’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘Authority’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. ‘activities in the Area’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. ‘pollution of the marine environment’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. ‘dumping’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. ‘States Parties’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 4 4 6 8 11 12 16 18

I. Purpose and Function 1

Art. 1 is the only article contained in Part I, titled ‘Introduction’. The purpose of Art. 1 is twofold: To clarify the meaning of some of the terms used in the Convention and to specify the scope of participants to the Convention. The first three items, namely, ‘Area’, ‘Authority’, and ‘activities in the Area’ concern rules provided in Part XI of the Convention governing the Area. The remaining two terms, namely, ‘pollution of the marine environment’ and ‘dumping’ relate to Part XII of the Convention which deals with protection and preservation of the marine environment. The last term ‘State Parties’ concerns the scope of the Contracting Parties to the Convention. For the purposes of this Convention, the scope of ‘State 18

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Parties’ needs specification since, as provided in Art. 305 (1), they cover non-State entities. Art. 1 does not exhaust the definition of all terms in the Convention and meanings to be attributed to other terms are given throughout the Convention. The criterion for selecting the terms in Art. 1 is less clear. Thus, some doubts might be raised whether the terms referred to in Art. 1 should have been defined in the relevant parts of the Convention. 1

II. Historical Background Art. 1 of the Informal Single Negotiating Text of 1975 contained definition of only four 2 items, i. e. ‘States Parties’, ‘activities in the Area’, ‘resources’ and ‘mineral resources’. 2 However, Art. 1 of the Informal Composite Negotiating Text (ICNT) of 1977 expanded its scope, covering, under the title of ‘use of terms’, definition of ‘Area’, ‘Authority’, ‘activities in the Area’, ‘pollution of the marine environment’, and ‘dumping’ as follows:3 ‘1. For the purposes of the present Convention: (1) “Area” means the sea-bed and ocean floor and subsoil thereof beyond the limits of national jurisdiction. (2) “Authority” means the International Sea-Bed Authority. (3) “Activities in the Area” means all activities of exploration for, and exploitation of, the resources of the Area. (4) “Pollution of the marine environment” means 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 fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities. (5) (a) “Dumping” means: (i) Any deliberate disposal including incineration of wastes or other matter from vessels, aircraft, platforms or other man-made structures at sea; (ii) Any deliberate disposal of vessels, aircraft, platforms or other man-made structures at sea. (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 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 the present Convention. (c) The disposal of wastes or other matter directly arising from or related to the exploration, exploitation and associated off-shore processing of sea-bed mineral resources will not be covered by the provisions of the present Convention.’

Art. 1 (1)(1) and (2) were taken from of Art. 2 (1) and (2) of the Revised Single Negotiating Text (RSNT) of 1976.4 Art 1 (1)(3) was taken from Art. 1 (ii) of the RSNT.5 These subparagraphs were identical to the current text of subparagraphs (1), (2) and (3) of Art. 1 (1). The definition of ‘States Parties’ included in Art. 1 (i) of the RSNT was deleted in the ICNT, even though it was to be reintroduced in 1982. Art. 1 (1)(4) was taken from Art. 1 of the RSNT (Part III),6 but added ‘harm to marine life’. This subparagraph was nearly 1 In addition, UNCLOS does not define each and every term used in the Convention. Generally on this subject, see George K. Walker (ed.), Definitions for the Law of the Sea: Terms Not Defined by the 1982 Convention (2012). 2 UNCLOS III, Informal Single Negotiating Text (Part I), UN Doc. A/CONF.62/WP.8/PART I (1975), OR IV, 137–138. 3 UNCLOS III, Informal Composite Negotiating Text, UN Doc. A/CONF.62/WP.10 (1977), OR VIII, 6. 4 UNCLOS III, Revised Single Negotiating Text (Part I), UN Doc. A/CONF.62/WP.8/REV.1/PART I (1976), OR V, 125, 128. 5 Ibid., 128. 6 UNCLOS III, Revised Single Negotiating Text (Part III), UN Doc. A/CONF.62/WP.8/REV.1/PART III (1976), OR V, 173, 174.

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identical to the current text of Art. 1 (1)(4). Art. 1 (1)(5) was adopted from Art. 1 (1) of the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Dumping Convention).7 Later, the phrase ‘including incineration of wastes’ in Art. 1 (1)(5)(a)(i) and Art. 1 (1)(5)(c) were deleted in the same provision of the ICNT, Revision 1 of 1979.8 Art. 1 (1)(5)(a) and (b) of the ICNT, Revision 1, was identical to the current text of the Convention. 3 After having been deleted in the ICNT, the text concerning the definition of ‘States Parties’ which would become Art. 1 (2) of the Convention did not even reappear in the Draft Convention on the Law of the Sea of 1981. The current text of the paragraph 2 of Art. 1 of the Convention derived from an informal proposal for a new Article 1bis at the Eleventh Session in 1982. The new provision, which was proposed in the context of the discussion on Art. 305 concerning signature of the Convention, stated that: ‘This Convention shall apply mutatis mutandis to entities referred to in article 305, paragraphs I (b), (c), (d) and (e), which become Parties to this Convention in accordance with the conditions relevant to each, and to that extent “States Parties” means and includes such entities.’ 9

This provision was accepted by the Collegium,10 and Art. 1bis was combined with Art. 1 according to the recommendation of the Drafting Committee. As a consequence, the title was changed to ‘Use of terms and scope’ and a new paragraph 2 was added. 11 This became the current text of Art. 1 (2). At the same time, the title of Part I of the Convention, ‘Use of Terms’, was replaced by the word ‘Introduction’.

III. Elements 1. Use of Terms and Scope A precedent of the expression ‘use of terms’ can be found in the practice of the International Law Commission in drafting articles on the law of treaties. 12 In 1962, the title of draft Art. 1 adopted on first reading was named ‘Definitions’. However, a concern was voiced that the title ‘Definitions’ would be inappropriate because the Commission had not proposed to lay down theoretical and general definitions.13 Accordingly, in 1965, the title of the new first article was changed to ‘Use of terms’ instead of ‘Definitions’. 14 5 Art. 1 (1) of the Convention covers only some of the terminology used in the Convention and definition and meaning of other terms are specified throughout the Convention. 15 The term ‘scope’ used in Art. 1 refers to scope ratione personae, i. e. scope of the participation to the Convention, not the extent of the Convention ratione materiae.16 4

7 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1046 UNTS 138. Entered into force 30 August 1975. 8 UNCLOS III, Informal Composite Negotiating Text (Revision 1), UN Doc. A/CONF.62/WP.10/REV.1 (1979), OR VIII, 22. 9 UNCLOS III, Report of the President on the Question of Participation in the Convention, UN Doc. A/ CONF.62/L.86 (1982), OR XVI, 197, 199 (Annex I: Art. 1bis); Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 37. See also Franckx on Art. 305. 10 UNCLOS III, Memorandum Issued by the Collegium on Changes Incorporated in the Draft Conventions, UN Doc. A/CONF.62/L.93 (1982), OR XVI, 210–211. 11 Nordquist/Nandan/Rosenne (note 9), 37. 12 Ibid., 30. 13 ILC, Summary Records of the Fourteenth Session, vol. I (1962), 172 (para. 69); ILC, Summary Records of the First Part of the Seventeenth Session, vol. I (1965), 10 (para. 8). 14 ILC, Summary Records of the First Part of the Seventeenth Session, vol. I (1965), 244 (para. 11). 15 Nordquist/Nandan/Rosenne (note 9), 38. 16 Ibid., 30.

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2. ‘Area’ Under Art. 136, the Area and its resources are the common heritage of mankind. 17 The 6 limits of the Area are the seaward limit of the continental shelf in the legal sense. It follows that the limits of the Area are at a maximum 200 NM from the baseline or the limit of the continental margin where it extends beyond 200 NM (� Art. 76).18 As provided in Art. 121 (3), rocks ‘which cannot sustain human habitation or economic life of their own’ have no EEZ nor continental shelf.19 Accordingly, in the case of a rock provided in Art. 121 (3), the limit of the Area is exceptionally the seaward limit of the territorial sea around the rock. The superjacent waters of the Area are the high seas (� Part V). The limits of the Area are determined by each State in conformity with international law. 7 Under Art. 134 (4) of the Convention, 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 in accordance with Art. 84 (2) of the Convention. Art. 1 does not offer any definition of the terms ‘sea-bed’, ‘ocean floor’ and ‘subsoil’. The Consolidated Glossary by the Technical Aspects of the Law of the Sea Working Group of the International Hydrographic Organisation defines the term ‘sea-bed’ as: ‘The top of the surface layer of sand, rock, mud or other material lying at the bottom of the sea and immediately above the subsoil’. 20 The term ‘subsoil’ means: ‘All naturally occurring matter lying beneath the sea-bed or deep ocean floor’.21 Related to this, it may be relevant to note that in Art. 76, the term ‘deep ocean floor’, rather than ‘sea-bed’, is used in reference to the surface layer seaward of the continental rise. It may not be unreasonable to consider that the ‘ocean floor’ in Art. 1 is in essence equivalent to ‘deep ocean floor’. The Consolidated Glossary defines ‘deep ocean floor’ as: ‘The surface lying at the bottom of the deep ocean with its oceanic ridges, beyond the continental shelf margin’.22

3. ‘Authority’ When the text of the Convention uses the term ‘Authority’, it refers to the International 8 Seabed Authority. The Authority is an international organization governing the activities in the Area on behalf of mankind as a whole.23 All States Parties to the Convention are ipso facto members of the Authority.24 The Authority sits in Kingston, Jamaica.25 The Authority comprises three principal organs, that is to say, an Assembly, a Council and a Secretariat. 26 In addition, it has its operational organ: the Enterprise. 27 The Authority formally came into 17 For analysis, see Vo ¨ neky/Ho¨felmeier on Art. 136. Generally on the common heritage of mankind, see M. Christopher W. Pinto, The Common Heritage of Mankind, RCADI 361 (2012) 9–130. 18 Generally on the continental shelf beyond 200 NM, see, for instance, Suzette V. Suarez, The Outer Limits of the Continental Shelf: Legal Aspects of Their Establishment (2008); Bjarni Ma´ r Magnu´sson, The Continental Shelf Beyond 200 Nautical Miles (2015); Signe Veierud Busch, Establishing Continental Shelf Limits Beyond 200 Nautical Miles by the Coastal State: A Right of Involvement for Other States? (2016). 19 See generally Talmon on Art. 121. 20 UN DOALOS, The Law of the Sea: Baselines: An Examination of the Relevant Provisions of the United Nations Convention on the Law of the Sea (1989), 47, 61 (Appendix I: Consolidated Glossary of Technical Terms Used in the United Nations Convention on the Law of the Sea). 21 Ibid., 64. 22 Ibid., 53. 23 See Arts. 137 (2), 149 (1) and 153 (1). 24 Art. 156 (2). 25 Art. 156 (4). 26 Art. 158. For an outline of each organ of the Authority, see Michael W. Lodge, ‘The Deep Seabed’, in Donald R. Rothwell et al., The Oxford Handbook of the Law of the Sea (2015), 231–239. 27 Under Annex, Section 2(1), the 1994 Implementation Agreement, the Secretariat of the Authority is to perform the functions of the Enterprise until it begins to operate independently of the Secretariat.

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existence on 16 November 1994 when the Convention came into force and began to function in 1996 when the first Secretary-General, Ambassador Satya N. Nandan, assumed office. 28 9 The jurisdiction of the Authority is provided in some detail in Part XI of the Convention and the 1994 Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982.29 Although no detailed examination on this matter can be made here, it is to be noted that, in essence, the jurisdiction of the Authority is limited to matters provided by the Convention. Concerning those matters, however, the Authority can exercise both legislative30 and enforcement jurisdiction31 over all people and objects in the Area in an exclusive manner. In fact, the Authority adopted a series of regulations governing the seabed activities. On 13 July 2000, the Assembly of the Authority approved Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area. 32 On 7 May 2010, the Assembly approved the Regulations on Prospecting and Exploration for Polymetallic Sulphides in the Area.33 On 27 July 2012, it decided to approve the Regulations on Prospecting and Exploration for Cobalt-Rich Ferromanganese Crusts in the Area. 34 10 Under Art. 153 (1) of the Convention, activities in the Area shall be organised, carried out and controlled by the Authority on behalf of mankind as a whole. Thus, the activities in the Area are governed by the Authority in a centralised manner. Considering that the Authority performs its functions on behalf of mankind as a whole, it can be argued that mankind governs the Area via its operational organ, i. e. the Authority. In this sense, the establishment of the Authority appears to signal that mankind is emerging as a new actor of international law.

4. ‘activities in the Area’ 11

As provided in Art. 1 (1)(3) of the Convention, ‘activities in the Area’ means ‘all activities of exploration for, and exploitation of, the resources of the Area’. Yet, the text does not make any further precision of the scope of the ‘activities in the Area’. The scope was clarified by the Seabed Disputes Chamber of International Tribunal for the Law of the Sea (ITLOS) in its Advisory Opinion of 2011.35 According to the Chamber, the expression ‘activities in the Area’, in the context of both exploration and exploitation, includes, first of all, the recovery of minerals from the seabed and their lifting to the water surface. Specifically, the following activities fall within the scope of ‘activities in the Area’: drilling, dredging, coring, and excavation; disposal, dumping and discharge into the marine environment of sediment, wastes or other effluents; 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’, i. e. 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 which the contractor operates are excluded from ‘activities in the Area’.36 28

Lodge (note 26), 231. The text of the 1994 Implementation Agreement is in: 1836 UNTS 42. Entered into force 28 July 1996. For an analysis of the Authority’s jurisdiction, see Yoshifumi Tanaka, The International Law of the Sea (2nd edn. 2015) 182–184. 30 See Arts. 145, 146, 147 (2)(a), 160 (2)(f) and Art. 17 (1) Annex III. 31 See Arts. 153 (5), 162 (2)(a), 162 (2)(w), 185 and Art. 18 Annex III. 32 ISA, Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area, ISA Doc. ISBA/6/A/ 18 (2000), Annex. The Regulations were revised and updated in 2013. ISA Doc. No ISBA/19/C/17 (2013). 33 ISA, Regulations on Prospecting and Exploration for Polymetallic Sulphides in the Area, ISA Doc. ISBA/16/ A/12/REV.1 (2010), Annex. 34 ISA, Regulations on Prospecting and Exploration for Cobalt-rich Ferromanganese Crusts in the Area, UN Doc. ISBA/18/A/11 (2012), Annex. 35 ITLOS Seabed Disputes Chamber, Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Advisory Opinion of 1 February 2011, ITLOS Reports (2011), 10. 36 Ibid., 35–37 (paras. 87–96). 29

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5. ‘pollution of the marine environment’ Art. 1 (1)(4) provides an open definition on marine pollution which may include all 12 sources of marine pollution in the present and future. The definition is very close to the definition of marine pollution by the Group of Experts on the Scientific Aspects of Marine Pollution (GESAMP).37 This provision is linked to Art. 194 (1) and (3) of the Convention. Art. 194 (1) obliges States to take all measures that are necessary to prevent pollution of the marine environment from ‘any source’. Under Art. 194 (3), the measures taken pursuant to Part XII shall deal with ‘all sources’ of pollution of the marine environment. Specifically, the Convention identifies six sources of marine pollution: (i) pollution from land-based sources,38 (ii) pollution from seabed activities subject to national jurisdiction,39 (iii) pollution from activities in the Area,40 (iv) pollution by dumping,41 (v) pollution from vessels,42 and (vi) pollution from or through the atmosphere.43 The definition covers substances or energy which ‘is likely to result’ in deleterious effects. 13 It would follow that potentially harmful effects on the marine environment can also become the object of regulation. In light of its open texture nature, Art. 1 (1)(4) also covers new sources of marine pollution, such as ocean noise.44 Even though it may be go too far to argue that the precautionary approach was already reflected in this provision, the Convention must be interpreted and applied in light of the recent development of international law, including rules of international environmental law.45 Therefore, there appears to be some scope to argue that presently the definition of marine pollution in Art. 1 should be interpreted and applied taking account of the precautionary approach. As shown in the reference to ‘living resources and marine life’, this definition makes 14 clear that ‘the marine environment’ encompasses marine living organisms. This interpretation was supported by ITLOS in the Southern Bluefin Tuna cases, stating that: ‘[T]he conservation of the living resources of the sea is an element in the protection and preservation of the marine environment’.46 Hence the protection of the marine environ-

37 Nordquist/Nandan/Rosenne (note 9), 41; Philippe Sands/Jacqueline Peel(with Adriana Fabra/Ruth MacKenzie, Principles of International Environmental Law (3rd edn. 2012), 351; The Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection (GESAMP) defines marine pollution as: ‘Pollution means the introduction by man, directly or indirectly, of substances or energy into the marine environment (including estuaries) resulting in such deleterious effects as harm to living resources, hazards to human health, hindrance to marine activities including fishing, impairment of quality for use of sea water and reduction of amenities’. The definition is quoted in various documents of GESAMP, see for instance, GESAMP, Environmental Capacity: An Approach to Marine Pollution, Reports and Studies No. 30 (1986), iii. 38 Arts. 194 (3)(a), 207 and 213. 39 Arts. 194 (d)(c), 208 and 214. 40 Arts. 209 and 215. 41 Arts. 210 and 216. 42 Arts. 194 (3)(b), 211, 217, 218 and 220. 43 Arts. 212 and 222. 44 Some argue that acoustic waves can be interpreted to be included in the concept of ‘energy’ in the definition of marine pollution under Art. 1 (1)(4), see: Karen N. Scott, International Regulation of Undersea Noise, ICLQ 53 (2004), 287, 293; Nele Matz-Lu¨ck, Underwater Pollution by Vessel Noise: A European Perspective, in: Erik Franckx/Philippe Gautier (eds.), The Exercise of Jurisdiction over Vessels: New Developments in the Fields of Pollution, Fisheries, Crimes at Sea and Trafficking of Weapons of Mass Destruction (2010), 97, 99–100; Irini Papanicolopulu, The European Union and the Regulation of Underwater Noise Pollution, in: Davor Vidas/Peter Johan Schei (eds.), The World Ocean, in Globalisation: Climate Change, Sustainable Fisheries, Biodiversity, Shipping, Regional Issues (2011), 457, 459. 45 Patricia Birnie/Alan Boyle/Catherine Redgwell, International Law and the Environment (3rd edn. 2009), 388. The Arbitral Tribunal in the Indus Waters Kinshenganga Arbitration stated that: ‘It is established that principles of international environmental law must be taken into account even when […] interpreting treaties concluded before the development of that body of law’: PCA, Indus Waters Kinshenganga Arbitration (Pakistan v. India), Partial Award, 18 February 2013, para. 452, available at: http://www.pca-cpa.org/showpage.asp?pag_id=1392. 46 ITLOS, Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional Measures, Order of 27 August 1999, ITLOS Reports (1999), 280, para. 70.

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Part I. Introduction

ment also involves the protection of marine species. It can be considered that the concept of the marine environment covers marine biological diversity.47 15 Pollution is an elusive concept and the scope of marine pollutants may change over time. Their adverse impacts on the marine environment, including marine species and ecosystems, may also vary according to regions. Accordingly, harmful substances that contribute to marine pollution and detailed standards for the regulation of these substances are provided by specific environmental treaties in practice. Even so, it must be stressed that the primary focus of the Convention is on general and comprehensive regulation to prevent marine pollution. In this sense, it may be said that the Convention reflects a paradigm shift in international law from the traditional freedom to pollute to an obligation to prevent marine pollution.

6. ’ dumping’ 16

The definition under Art. 1 (1)(5) is a replica of the definition provided in Art. III (1) of the London Dumping Convention. The definition calls for two comments. First, ‘dumping’ 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. 48 In addition, as stated in Art. 1 (5)(b)(i), the disposal of wastes or other matters derived from the normal operations of vessels, etc. does not constitute dumping. The definition of dumping in Art. 1 is at present inadequate to address new types of disposal at sea, such as ocean sequestration and fertilisation.49 In this regard, it is to be noted that the 1996 Protocol, which superseded the London Dumping Convention and was amended in 2006, contains a more detailed definition of dumping.50 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.’

The item 3 relates to the storage of carbon dioxide under the seabed as an interim solution to control the emission of carbon dioxide. In this regard, on 30 October 2009, Art. 6 of the London Protocol was amended with a view to permitting the export of carbon dioxide streams for disposal in accordance with Annex 1.51 On the other hand, a new Art. 6bis of the London Protocol, added in 2013, prohibits contracting Parties to ‘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’.52 47

See Art. 194 (5). Robin Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 330. 49 Generally on this issue, see Bert Mets et al. (eds.), IPCC Special Report on Carbon Dioxide Capture and Storage (2005); Karen N. Scott, Exploiting the Oceans for Climate Change Mitigation: Case Study on Ocean Fertilisation, in: Clive H. Schofield/Seokwoo Lee/Moon-Sang Kwon (eds.), The Limits of Maritime Jurisdiction (2014), 653–677; Kim Jung-Eun, Implications of Current Developments in International Liability for the Practice of Marine Geo-Engineering Activities, Asian JIL 4 (2014), 235–260. 50 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. The text of the Protocol was amended in 2006. 51 IMO Res. LP.3(4) of 30 October 2009 on the Amendment to Article 6 of the London Protocol. 52 IMO Res. LP.4(8) of 18 October 2013 on the Amendment to the London Protocol to Regulate the Placement of Matter for Ocean Fertilisation and Other Marine Geoengineering Activities. 48

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Use of terms and scope

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Art. 1

The further issue to be considered concerns the marine disposal of mine tailings. While 17 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 Convention/Protocol.53 A contentious issue is whether pipeline discharges from land are covered by the scope of the London Convention and its Protocol. In this regard, the IMO takes the view that the Parties to the London Convention/Protocol could decide that outfall pipes are ‘other man-made structures at area’ within the meaning of the definition of ‘dumping’ in the London Convention and Protocol and take action accordingly.54 However, Art. 207 (1) UNCLOS 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 Convention and its Protocol.55

7. ‘States Parties’ ‘State Parties’ of the Convention is not limited to States, but extended to State-like entities 18 and to international organisations under certain conditions set out in Annex IX. Art. 1 (2)(a) was adapted from Art. 2 (1)(g) of the 1969 Vienna Convention on the Law of Treaties. 56 The extent ‘States Parties’ refers to those entities provided in Art. 305 (1), namely: Namibia, represented by the United Nations Council for Namibia,57 all self-governing associated States,58 all territories which enjoy full internal self-government, recognized as such by the United Nations, but have not attained full independence in accordance with General Assembly Resolution 1514(XV)59 and which have competence over the matters governed by this Convention, and international organizations in accordance with Annex IX. Although Art. 305 (1)(c)(d) and (e) refer to two kinds of self-governing associated States and nonindependent self-governing territory, the Convention does not specify which territories fall within that definition.60 The term, ‘international organizations’, refers to an inter-governmental organization61 and it does not cover non-governmental organisations (NGOs). Under Annex IX Art. 1, ‘international organization’ referred to under Art. 305 and this annex must fulfil two conditions: (i) its member States have transferred competence over matters governed by this Convention and (ii) the organization has the competence to enter into treaties in respect of those matters. These conditions are parallel to those set out in Art. 305 (1)(c), (d) and (e). At the time of writing, the European Union is the only international organization that has ratified the Convention.62 53 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. 54 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). 55 Ibid. 56 Nordquist/Nandan/Rosenne (note 9), 37. 57 Namibia ratified the Convention in 1983. It gained independence in 1990. 58 The Cook Islands and Niue are self-governing territories in association with New Zealand. The Cook Islands ratified the UNCLOS in 1995 and Niue ratified the Convention in 2006. For a detailed analysis of associated States, see Masahiro Igarashi, Associated Statehood in International Law (2002). 59 Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Res. 1514 (XV) of 14 December 1960. 60 Robin R Churchill, The 1982 United Nations Convention on the Law of the Sea, in: Rothwell et al. (note 26), 32. 61 Annex IX Art. 1. 62 The EU ratified the UNCLOS on 1 April 1998. For the status of the UNCLOS in the EU law, see for instance Rona´n Long, The European Union and Law of the Sea Convention at the Age of 30, in: David Freestone (ed.), The 1982 Law of the Sea Convention at 30: Successes, Challenges and New Agendas (2013), 37–47; see also Franckx on Annex IX Art. 1.

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Part I. Introduction

In considering the scope of ‘States Parties’ to the Convention, attention must be devoted to the inter-linkage between the Convention and the 1994 Implementation Agreement. After the adoption of the 1994 Implementation Agreement, any instrument of ratification or formal confirmation of or accession to the Convention shall also represent consent to be bound by the 1994 Agreement.63 At the same time, 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. 64 As of 2016, 168 States have ratified the Convention.

63 64

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Art. 4 (1) 1994 Implementation Agreement. Art. 4 (2) 1994 Implementation Agreement.

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PART II TERRITORIAL SEA AND CONTIGUOUS ZONE Section 1 General provisions Article 2 Legal status of the territorial sea, of the air space over the territorial sea and of its bed and subsoil 1. 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. 2. This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil. 3. The sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law. Bibliography: Richard Barnes, Property Rights and Natural Resources (2009); Ian Brownlie, Principles of Public International Law (6th edn. 2003); Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); Percy T. Fenn Jr., Origins of the Theory of Territorial Waters, AJIL 20 (1926), 465–482; H. S. K. Kent, Historical Origins of the Three Mile Limit, AJIL 48 (1954), 537–553; Geoffrey Marston, The Evolution of the Concept of Sovereignty over the Bed and Subsoil of the Territorial Sea, BYIL 48 (1976–1977), 321–332; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Daniel P. O’Connell, The International Law of the Sea, vol. I (1982); Daniel P. O’Connell, The Juridical Nature of the Territorial Sea, BYIL 45 (1971), 303–384; Lassa Oppenheim, International Law, vol. I (8th edn. 1955); Wyndham L. Walker, Territorial Waters: The Cannon-Shot Rule, BYIL 22 (1945), 210–231 Documents: ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45; ILC, Report of the International Law Commission Covering the Work of Its Eighth Session, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9; ILC, Report of the International Law Commission, UN Doc. A/2693 (1954), GAOR 9th Sess. Suppl. 9, reproduced in: ILC Yearbook (1954), vol. II, 140–173; League of Nations, Acts of the Conference for the Codification of International Law, LN Doc. C.74.M.39.1929.V (1929.V.); League of Nations, Acts of the Conference for the Codification of International Law, LN Doc. C.351.M.145.1930.V (1930.V.); League of Nations, Report of Second Commission, League of Nations Publication V. Legal, LN Doc. C.230.M.117.1930.V. (1930.V.9) Cases: Attorney-General for British Columbia v. Attorney-General for Canada [1914] AC 153 (UK); Award between the United States and the United Kingdom, Relating to the Rights of Jurisdiction of United States in the Bering’s Sea and the Preservation of Fur Seals, Decision of 15 August 1893, RIAA XXVIII, 263–276; Carr v. Francis Times & Co. [1902] AC 176 (UK); Cunard Steamship Co. v. Mellon, 262 U.S. 100 (1923); ICJ, Fisheries Case (United Kingdom v. Norway), Judgment of 18 December 1951, ICJ Reports (1951), 116; PCA, Grisbådarna Case (Norway v. Sweden), Award of 23 October 1909, RIAA XI, 147; PCA, In the Matter of the Chagos Marine Protected Area Arbitration (Republic of Mauritius v. United Kingdom), Award of 18 March 2015, ILR 162, 1; PCA, In the Matter of the South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China), Award of 12 July 2016, available at: http://www.pcacases.com/web/view/7; PCA, Island of Palmas Case (Netherlands v. United States), Award of 4 April 1928, RIAA II, 829; PCA, The North Atlantic Coast Fisheries Case (Great Britain v. United States of America), Award of 7 September 1910, RIAA XI, 167; PCIJ, Legal Status of Eastern Greenland (Denmark v. Norway), Judgment of 5 September 1933, Series A/B, No. 53, 22; PCIJ, The Case of the S.S. Lotus (France v. Turkey), Judgment of 7 September 1927, Series A, No 10, 3; R. v. Keyn [1876] 2 Ex. D. 63 (UK)

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Part II. Territorial sea and contiguous zone Contents

I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘The sovereignty of a coastal State extends […] to an adjacent belt of sea’. . . . . 2. ‘sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘The sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 4 14 14 17 21

I. Purpose and Function Art. 2 defines the status of the territorial sea, including the airspace above and the seabed and sub-soil. Sovereignty is exercised subject to the provisions of the Convention and other rules of international law. Sovereignty over the territorial sea was first recognised at the 1930 Hague Codification Conference1 and since then it has been generally accepted by States. Art. 2 has the status of customary international law.2 There is some disagreement about the precise operation of the restrictions on sovereignty, but these pertain to the extent of navigational rights rather than the status of the territorial sea per se. 2 The principal limitation on the exercise of sovereignty is the right of innocent passage, which establishes certain navigational rights for other States within the territorial sea. Art. 2 does not detail the precise extent of sovereignty or of any of the limitations thereupon. Indeed, sovereignty is a highly mutable concept and alone it does not identify the precise nature of rights that can be exercised in the territorial sea. 3 As such, it needs to be read alongside other provisions of the Convention, especially Arts. 17–32. However, in the event there is uncertainty as to the extent of coastal State authority to control activities in the territorial sea, Art. 2 will be relevant since general international law presumes against restrictions on the sovereignty of States.4 This places a burden on a State to show that international law does in fact restrict the residual authority of the coastal State to control a particular activity. 3 The sovereignty of the coastal State over the territorial sea, superjacent airspace, seabed and subsoil is presented as a unitary rule of international law. However, this masks important differences in the precise scope of coastal State sovereignty in this zone, or rather the limitations imposed upon it by international law. Sovereignty over each component part of the territorial sea has developed in a different manner, reflecting the physical qualities of each space, as well as the different economic, security and practical uses to which the territorial sea can be subject.5 Accordingly, only the water column is subject to the right of innocent passage (� Art. 17). 1

II. Historical Background 4

The development of coastal State sovereignty over the territorial sea has a long and complex history. It is closely linked to the development of the nation State, and the emergence of international law as discrete field of study and practice. Numerous theories about the legal status and nature of coastal waters have been offered by jurists since early 1

Cf. infra, MN 9. ILC, Report of the International Law Commission Covering the Work of Its Eighth Session, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9; Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 77. 3 Daniel P. O’Connell, The Juridical Nature of the Territorial Sea, BYIL 45 (1971), 303, 304. 4 PCIJ, The Case of the S.S. Lotus (France v. Turkey), Judgment of 7 September 1927, Series A, No. 10, 3, 18. 5 Geoffrey Marston, The Evolution of the Concept of Sovereignty over the Bed and Subsoil of the Territorial Sea, BYIL 48 (1976–1977), 321, 332. 2

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times and these only consolidated in a coherent doctrine of the territorial sea in the late nineteenth century.6 The exercise of some degree of authority over a belt waters adjacent to the coastline 5 predates the modern concept of the State.7 Limited claims to jurisdiction over adjacent seas can be traced to Roman law. These were based upon the need to supress piracy and protect shipping. However, any consideration of sovereignty over the sea was absent. Of course, until the emergence of the nation State the exercise of sovereignty over the sea was not a juristic possibility. These claims to jurisdiction over certain activities at sea were received, through the work of the Glossators and post-Glossators, into medieval Roman law and civil law systems. Such assertions of rights did not amount to sovereignty, but they provided a means of justifying subsequent claims. The question of authority over the sea came to prominence in the early seventeenth 6 century with the explosion of colonial, maritime and trading pretensions by European States. During the legal debates between Grotius and his contemporaries, there was a general recognition that some degree of authority could be exercised over a small band of marginal sea.8 In the absence of any overarching theory of international legal authority, domestic law conceptions of property provided the best conceptual framework for explaining claims to control activities in coastal waters. Accordingly, the extent of authority over coastal waters was contingent upon the extent to which ownership of the sea could be asserted through, for example, effective control.9 During the 17th century the distinction between the high seas, which were free to all, and a band of coastal waters, which were susceptible to appropriation, coalesced. During the seventeenth and eighteenth centuries, State practice confirmed the existence of 7 coastal State authority over the territorial sea, principally through the assertion of exclusive fishing rights and the assertion of the canon-shot rule.10 However, this practice was not entirely uniform, and the precise juridical nature of the territorial sea remained unresolved until the twentieth century. Some States claimed ownership or sovereignty of a belt of waters, whilst others asserted more limited jurisdictional competence over specific activities such as fishing or customs regulation. The ‘property theory’ of the territorial sea tended to prevail until the nineteenth century. As upheld in the Bering Fur Seals Arbitration (1893), property rights in natural resources and the territorial sea were coterminous. 11 However, the property theory struggled to reconcile ownership with recognition of the rights of ships to navigate unimpeded through coastal waters. During the nineteenth century, a number of other theories were advanced to account for the nature and extent of coastal State authority over coastal waters, including the police theory, the competence theory and the servitude theory. 12 However, these lacked the capacity to explain the authority of the State to exclusive authority to appropriate the resources of the sea, control aspects of navigation essential to security, and yet facilitate rights of navigation essential to maritime trade. The uncertain legal status of the territorial sea revealed itself in the English case, R. v. Keyn, when the Court held that the Crown lacked jurisdiction to try a foreign national on a foreign flagged ship for manslaughter arising out of a collision occurring within British territorial waters.13 Although the territorial sea was recognised to be part of the British realm, it was observed that even if a territorial sea could be claimed, until this was done through legislation, the courts were not entitled to extend jurisdiction over foreign6

O’Connell (note 3), 303 et seq. Percy T. Fenn Jr., Origins of the Theory of Territorial Waters, AJIL 20 (1926), 465–482. 8 Richard Barnes, Property Rights and Natural Resources (2009), 166 et seq. 9 O’Connell (note 3), 303, 315; Churchill/Lowe (note 2), 71 et seq. 10 H. S. K. Kent, Historical Origins of the Three Mile Limit, AJIL 48 (1954), 537–553; Wyndham L. Walker, Territorial Waters: The Cannon-Shot Rule, BYIL 22 (1945), 210–231. 11 Award Between the United States and the United Kingdom, Relating to the Rights of Jurisdiction of United States in the Bering’s Sea and the Preservation of Fur Seals (United States v. United Kingdom), Decision of 15 August 1893, RIAA XXVIII, 263. 12 O’Connell (note 3), 315. 13 R. v. Keyn [1876] 2 Ex. D. 63 (UK). 7

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ers.14 The questionable status of the territorial sea was further complicated by the absence of any agreement over the precise geographic extent of coastal State authority. 8 Until there was some international agreement upon the status of territorial waters this uncertainty would continue. During the 1910 North Atlantic Coast Fisheries Case, Great Britain asserted sovereignty over a belt of seas adjoining its coast. 15 However, the tribunal did not pronounce on this matter in its final award. Domestic judicial authorities depended upon the respective Government’s public positions on the status of coastal waters. Thus British and American courts tended to recognise the existence of sovereignty over a band of territorial waters,16 whereas French and Italian decisions excluded such waters from the national domain.17 Despite this, there was growing acceptance by international law commentators that the territorial sea was subject to sovereignty. 18 This reflected a growing body of practice favouring the extension of sovereignty over the territorial sea. Sovereignty over the territorial waters was recognised in the Grisbådarna Case, 19 where the Permanent Court of Arbitration (PCA) held it to be an inseparable appurtenance of the land territory, and the Eastern Greenland Case, where Danish fisheries legislation over territorial waters was accepted as evidence of Danish sovereignty over disputed parts of Greenland. 20 It was also acknowledged in the 1919 Paris Convention relating to the Regulation of Aerial Navigation (1919 Paris Convention).21 9 In 1924, the Assembly of the League of Nations appointed a Committee of Experts to prepare for the codification of international law, including the regime of the territorial sea. A schedule of points was circulated to participating States prior to the conference, the responses to which revealed general support for a regime of sovereignty over the territorial sea. 22 The text on the territorial sea put forward to the Hague Codification Conference of 1930 provided that ‘[t]he territory of a State includes a belt of sea described in this Convention as the territorial sea. Sovereignty over this belt is exercised subject to the conditions prescribed by the present Convention and other rules of international law.’23

This may be regarded as the point at which the legal status of the territorial sea was resolved, although it should be observed that the term ‘sovereignty’ could allow for a range of differing interpretations to be maintained by States. Since then, the idea that coastal States have sovereignty over the territorial sea has been generally accepted. The most important development of the Hague text was the emphasis given to the right of innocent passage, which was by then unquestionable part of international law.24 10 When the International Law Commission (ILC) commenced work on codifying the law of the sea in 1950, the notion of coastal State sovereignty was introduced without controversy by 14 The Territorial Waters Jurisdiction Act 1878 was quickly introduced and a unified claim to sovereignty over territorial waters was subsequently maintained throughout the British Empire, available at: http://www.legislation.gov.uk/ukpga/Vict/41–42/73. 15 PCA, The North Atlantic Coast Fisheries Case (Great Britain v. United States of America), Award of 7 September 1910, RIAA XI, 167 et seq. 16 Carr v. Francis Times & Co. [1902] AC 176, 182–183 (UK); Cunard Steamship Co. v. Mellon, 262 U.S. 100, 122 (1923); however, a more cautious view was expressed by the Privy Council in Attorney-General for British Columbia v. Attorney-General for Canada [1914] AC 153, 174 (UK). 17 O‘Connell (note 3), 347. 18 Ibid., 343. 19 PCA, Grisbådarna Case (Norway v. Sweden), Award of 23 October 1909, RIAA XI, 147. 20 PCIJ, Legal Status of Eastern Greenland (Denmark v. Norway), Judgment of 5 April 1933, Series A/B, No. 53, 22, 23. 21 Cf. infra, MN 18; Paris Convention relating to the Regulation of Aerial Navigation, 13 October 1919, LNTS 11, 174. 22 League of Nations, Acts of the Conference for the Codification of International Law, LN Doc. C.74.M.39.1929.V (1929.V.XX). 23 League of Nations, Acts of the Conference for the Codification of International Law, LN Doc. C.351.M.145.1930.V (1930.V.XX). 24 This was detailed in S. III and accommodated by the rule of reference ‘provision of these Articles in paragraph 2’.

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Art. 2

FRANCOIS, the Commission’s Special Rapporteur. Art. 1 of the Convention on the Territorial Sea and the Contiguous Zone (CTSCZ), which was negotiated on the basis of the ILC text, reads: ‘(1) 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. (2) This sovereignty is exercised subject to the provisions of these articles and to other rules of international law.’

The position on agreed in the CTSCZ in 1958 influenced later negotiations at 11 UNCLOS III. The negotiation and drafting of the relevant provisions on the status of the territorial at the UNCLOS III was done in accordance with the consensus-based approach. The Sea-Bed Committee, which was responsible for the preparatory work for UNCLOS III, and the Conference were divided into three main negotiating committees. The territorial sea provisions were negotiated in Committee Two, which was also responsible for dealing with other maritime zones and certain related topics. Art. 2 evolved from the Arts. 1 and 2 of the CTSCZ. The CTSCZ influenced the provisions on 12 the territorial sea contained in the Declaration of Santo Domingo which was presented to the Sea-Bed Committee in 1972.25 At the 1973 session of the Sea-Bed Committee, a number of draft proposals on the territorial sea were submitted.26 These followed the same basic approach taken in the CTSCZ. The only significant development was reference to the concept of archipelagic waters, which was provisionally referenced in some formal proposals. At the Second Session of the Conference in 1974, a number of proposals were submitted to, and discussed in the Second Committee.27 These contained no significant drafting changes. By this time, general acceptance of the concept of archipelagic waters resulted in its inclusion in proposals and negotiating texts. At the Second Session, the concept of a plurality of regimes emerged, whereby multiple regimes would operate in the same coastal waters at the same time but for different activities, such as navigation or security. This approach was advanced by a group of States that desired more extensive coastal State authority over a national maritime zone extending up to 200 NM from the baseline. However, this was a relatively short-lived development and it lapsed as the regime of the exclusive economic zone evolved. At the Third Session (1975), some time was devoted to a proposal by Ecuador that advanced the plurality of regimes approach.28 A draft provision provided a detailed list of activities that were to be regulated by the coastal State, including natural resources, energy generation, marine pollution, marine scientific research, artificial islands and installations, customs, fiscal, immigration, and sanitary matters. After further discussion and proposals, the following text was included in the Informal Single Negotiating Text (ISNT): 25 Sea-Bed Committee, Santo Domingo Declaration of the Specialized Conference of the Caribbean Countries on Problems of the Sea, UN Doc. A/AC.138/80 (1972), 3. 26 Main points noted by Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 66. 27 UNCLOS III, Canada et al.: Working Paper, UN Doc. A/CONF.62/L.4 (1974), OR III, 81; Second Committee UNCLOS III, United Kingdom: Draft Articles on the Territorial Sea and Straits, UN Doc. A/ CONF.62/C.2/L.3 (1974), OR III, 183; Second Committee UNCLOS III, India: Draft Article on the Nature and Characteristics of the Territorial Sea, UN Doc. A/CONF.62/C.2/L.4 (1974), OR III, 187; Second Committee UNCLOS III, Guyana: Introductory Draft Articles on Coastal State Competence in Contiguous Ocean Space, UN Doc. A/CONF.62/C.2/L.5 (1974), OR III, 187; Second Committee UNCLOS III, Spain: Draft Article on the Nature and Characteristics of the Territorial Sea, UN Doc. A/CONF.62/C.2/L.6 (1974), OR III, 187; Second Committee UNCLOS III, Bangladesh: Draft Article on the Nature and Characteristics of the Territorial Sea, UN Doc. A/CONF.62/C.2/L.7 (1974), OR III, 188; Second Committee UNCLOS III, Ecuador: Draft Articles on the Territorial Sea, UN Doc. A/CONF.62/C.2/L.10 (1974), OR III, 189; Second Committee UNCLOS III, Fiji et al.: Draft Articles on the Nature and Characteristics of the Territorial Sea, UN Doc. A/CONF.62/C.2/L.13 (1974), OR III, 190; Second Committee UNCLOS III, Nicaragua: Working Paper on Characteristics of the National Zone, UN Doc. A/CONF.62/C.2/L.17 (1974), OR III, 195; Second Committee UNCLOS III, Greece: Draft Articles, UN Doc. A/CONF.62/C.2/L.22, OR III, 200; Second Committee UNCLOS III, Bulgaria et al.: Draft Articles on the Territorial Sea, UN Doc. A/CONF.62/C.2/L.26 (1974), OR III, 203; Second Committee UNCLOS III, Austria et al.: Draft Articles on the Territorial Sea, UN Doc. A/CONF.62/C.2/L.33 (1974), OR III, 212. 28 Second Committee UNCLOS III, Ecuador: Draft Article on the Nature and Characteristics of the Territorial Sea, UN Doc. A/CONF.62/C.2/L.88 (1975), OR IV, 194.

Barnes

31

Art. 2

13–15

Part II. Territorial sea and contiguous zone

‘(1) 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, over an adjacent belt of sea described as the territorial sea. (2) This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil. (3) The sovereignty over the territorial sea is exercised subject to the provisions of these articles and to other rules of international law.’29

13

At the Fourth Session in 1976, the Revised Single Negotiating Text repeated the ISNT, with the addition of a heading referring to the ‘[j]uridical status of the territorial sea’. 30 The only significant change at the Sixth Session (1977) was the renumbering of the provision to Art. 2, following the insertion of a new Art. 1 into the Informal Composite Negotiating Text on ‘use of terms’.31 During the final drafting process, the heading was changed to ‘Legal Status’ of the territorial sea.32

III. Elements 1. ‘The sovereignty of a coastal State extends […] to an adjacent belt of sea’ Art. 2 (1) designates coastal State sovereignty over the territorial sea. The rights of the coastal State over the territorial sea do not differ in nature from rights exercised over land territory. There was no substantial discussion of this at the Conference, but this was the position taken by the ILC during the drafting of the equivalent provisions of the CTSCZ. 33 This sovereignty is subject to the limitations noted in Art. 2 (3). Hence, the coastal State may exercise both prescriptive and enforcement jurisdiction within the territorial sea. Although it is clear that coastal State sovereignty extends to the territorial sea as a matter of international law, this does not necessarily entail the automatic application of municipal law to the territorial sea. This will depend upon the precise operation of municipal law in individual States. Territorial sovereignty involves the ‘exclusive right to display the attributes of the State.’34 This includes both a negative and positive aspect. The former excludes other States from engaging in unauthorised activities in the territorial sea. The latter requires the coastal State to protect those rights which other States may enjoy in the territorial sea. This approach is manifest in the specific rules on innocent passage (� Art. 17). 35 15 Apart from the right of innocent passage, one further significant difference between sovereignty over land and territorial sea should be noted. Sovereignty over the territorial sea is an extension of sovereignty over land territory, rather than sovereignty inherent in the zone per se. The International Court of Justice (ICJ) has described the character of territorial waters ‘as appurtenant to the land territory’.36 This may limit the exercise of sovereignty. Whereas land territory may be ceded, sovereignty over the territorial sea cannot be ceded unless this forms part 14

29 UNCLOS III, Informal Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/PART II (1975), OR IV, 152 (Text presented by the Chairman of the Second Committee). 30 UNCLOS III, Revised Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/REV.1/PART II (1976), OR V, 151 (Text presented by the Chairman of the Second Committee). 31 UNCLOS III, Informal Composite Negotiating Text, UN Doc. A/CONF.62/WP.10 (1977), OR VIII, 1. 32 UNCLOS III, Report of the Chairman of the Drafting Committee, UN Doc. A/CONF.62/L.40 (1979), OR XII, 95. 33 ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12 (Commentary to Art. 1). 34 Judge Huber in the PCA, Island of Palmas Case (Netherlands v. United States), Award of 4 April 1928, RIAA II, 829, 839. 35 See Barnes on Art. 17 MN 7–10. 36 ICJ, Fisheries Case (United Kingdom v. Norway), Judgment of 18 December 1951, ICJ Reports (1951), 116, 128; In the same case, Sir Arnold McNair, dissenting, stated that: ‘To every State whose land territory is at any place washed by the sea, international law attaches a corresponding portion of maritime territory consisting of what the law calls territorial waters (and in some cases national waters in addition). International law does not say to a State: “You are entitled to claim territorial waters if you want them.” No maritime State can refuse them. International law imposes upon a maritime State certain obligations and confers upon it certain rights arising out

32

Barnes

Legal status of the territorial sea

16–21

Art. 2

of the cession of littoral land territory.37 In the Grisbådarna Case, the PCA described maritime territory as an essential appurtenance of land territory, which would automatically form part of a cession.38 Art. 2 (1) distinguishes between the territorial sea, and internal waters and archipelagic 16 waters. Internal waters are subject to the full sovereignty of the coastal State. They lie landward of the baseline for the measurement of the territorial sea, the drawing of which is governed by Arts. 5–14 and 16. There is no right of innocent passage through internal waters, unless the use of straight baselines is used to enclose areas of water that were not previously internal waters (Art. 8 (2)).39 Archipelagic States exercise sovereignty over archipelagic waters. For States that possess archipelagic waters, the delimitation of the territorial sea is done in accordance with Art. 47.40

2. ‘sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil’ Art. 2 (2) extends sovereignty to both the airspace above and seabed and subsoil below the territorial sea. This reflects the maxim of private law: Cuius est solum eius est usque ad coelum et ad inferos (‘the owner of the land owns everything up to the sky down to the centre of the earth’). Sovereignty over the superjacent airspace has been recognised under international law since the 1919 Paris Convention. Art. 1 of the 1919 Paris Convention provides that ‘every Power has complete and exclusive sovereignty over the air space above its territory’ and that ‘the territory of a State shall be understood as including the national territory, both that of the mother country and of the colonies, and the territorial waters adjacent thereto.’ Arts. 1 and 2 of the 1944 Chicago Convention on Civil Aviation take the same approach. There is no right of aircraft to innocent passage through the airspace above the territorial sea. The question of sovereignty over the seabed and subsoil has received little attention. For the most part it has been subsumed within the regime of territorial seas and been regarded as subject to coastal State sovereignty. It was not until the development of the notion of the continental shelf that interest in legal precedents for claims to extended authority over the seabed became of wider interest.41 State practice remains largely consistent with the provisions of Art. 2, at least in respect of the claim to exercise sovereignty over the territorial sea. Not all municipal legislation giving effect to the Convention refers to sovereignty, but since no greater rights can be claimed or rejected, this is not significant. More significant are those variations pertaining to the operation of the right of innocent passage.

17

18

19

20

3. ‘The sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law’ Art. 2 (3) subjects the exercise of sovereignty to a special (‘this Convention’) and general 21 limitation (‘other rules of international law’). The special limitation pertains to the right of innocent passage through the territorial sea. Innocent passage is limited to passage through the waters of the territorial sea. It does not extend to internal waters or to the airspace above the territorial sea, most likely because such a right could result in the risk of hostile incursions by fast moving aircraft into the territory of the State. Neither does it extend to the seabed, since this would amount to a right to mine the seabed. of the sovereignty which it exercises over its maritime territory. The possession of this territory is not optional, not dependent upon the will of the State, but compulsory’, ibid., 158, 160. 37 Lassa Oppenheim, International Law, vol. I (8th edn. 1955), 463, 488; cf. Ian Brownlie, Principles of Public International Law (6th edn. 2003), 118. 38 Grisbådarna Case (note 19), 159. 39 See Tru ¨ mpler on Art. 8 MN 14 et seq. 40 See Symmons on Art. 47 MN 12–54. 41 See further Maggio on Art 77 MN 4–8.

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Art. 3

Part II. Territorial sea and contiguous zone

Art. 2 (3) clearly states that the exercise of sovereignty is limited by international law. This may seem superfluous since sovereignty is fundamentally limited by international law. However, the inclusion of this qualification was considered necessary in the equivalent provision advanced at the Hague Codification Conference to confirm that the powers of the State over the territorial sea are no greater than those possessed over land domain. 42 This was reiterated by the ILC during the drafting of its articles on the territorial sea. 43 It further accommodates the fact that a convention could not list all such limitations that exist or may come to exist under general international law. This indicates that the Convention is not exhaustive as regards the limitations on the exercise of sovereignty in the territorial sea. 23 This provision is not merely descriptive; it embodies the obligation of the coastal State to comply with the Convention and other rules of international law. This view was adopted in the Chagos Arbitration, where the Tribunal’s interpreted the authoritative languages of the Convention, the context of Art 2 (3), and object and purpose of the Convention, as well as its negotiating history, to find the existence of a duty.44 The meaning of ‘other rules of international law’ refers to rules of general international law, as opposed to mere bilateral obligations that the coastal State may enter into from time to time. The important distinction being that bilateral limitations entered into on a voluntary basis are at the discretion of the coastal State, whereas general rules of international law, such as abuse of right or good faith, cannot impose mandatory restrictions on the exercise of sovereignty in territorial sea. In the Chagos Arbitration, the sovereignty of the United Kingdoms was limited by a duty to act in good faith and to have due regard to Mauritius’ rights and interests (in respect of fishing) in the territorial sea. 45 This general position was reaffirmed in the South China Sea Arbitration, where the Tribunal held that traditional fishing rights constitute a vested right, and that vested rights ‘fall squarely within the “other rules of international law” applicable to the territorial sea’. 46 Such vested rights are not absolute and may be subject to ‘reasonable regulation’, for example to ensure conservation and prevent environmental harm.47 This concept allows for a balancing of interests to take place between coastal States and third States. Reasonable regulation appears to include regulation to protect or preserve fisheries, regulation to uphold public order or morality, and regulation to secure equitable treatment between fishermen. 48 22

Section 2 Limits of the territorial sea Article 3 Breadth of the territorial sea Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.

42 League of Nations, Report of Second Commission, League of Nations Publication V. Legal, LN Doc. C.230.M.117.1930.V. (1930.V.9). 43 ILC, Report of the International Law Commission Covering the Work of Its Sixth Session, UN Doc. A/2693 (1954), GAOR 9th Sess. Suppl. 9, reproduced in: ILC Yearbook (1954), vol. II, 140, 154. 44 PCA, In the Matter of the Chagos Marine Protected Area Arbitration (Republic of Mauritius v. United Kingdom), Award of 18 March 2015, ILR 162, 1, paras. 499–517. 45 Ibid., para. 534. 46 PCA, In the Matter of the South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China), Award of 12 July 2016, para. 808. 47 Ibid., para. 809. 48 The North Atlantic Coast Fisheries Case (note 15), 174.

34

Tru¨mpler

Breadth of the territorial sea

1–2

Art. 3

Bibliography: Thomas Baty, The Three-Mile Limit, AJIL 22 (1928), 503–537; Cornelius van Bijnkershoek, Quaestionem juris publici, The Classics of International Law 14 (English translation 1964); Cornelius van Bijnkershoek, Opera Minora, De Dominio maris dissertation, in: The Classics of International Law (English translation 1964); Sigurd R. Bjo¨rksten, Das Wassergebiet Finnlands in vo¨lkerrechtlicher Hinsicht (1925); Vanssay de Blavous, Units of Length, Hydrographic Review 5 (1928), 227–232; Robin R. Churchill/Alan. V. Lowe, The Law of the Sea (3rd edn. 1999); Vladimir-Duro Degan, Sources of International Law (1997); Rene-Jean Dupuy/Daniel Vignes (eds.), A Handbook on the New Law of the Sea (1990); Thorsten Kalijarvi, Scandinavian Claims to Jurisdiction over Territorial Waters, AJIL 26 (1932); H. S. K. Kent, The Historical Origins of the Three-Mile Limit, AJIL 48 (1954), 537–558; John Norton Moore, The Regime of Straits and the Third United Nations Conference on the Law of the Sea, AJIL 74 (1980), 77–121; Fritz Mu¨nch, Ku¨stengewa¨sser, in: Karl Strupp/HansJu¨rgen Schlochauer (eds.), Wo¨rterbuch des Vo¨lkerrechts, vol. 2 (2nd edn 1961); Myron H. Nordquist (ed.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. I (1985); Myron H. Nordquist/ Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995); Daniel P. O’Connell, The International Law of the Sea, vol. I (1982); Jesse S. Reeves, The Codification of the Law of Territorial Waters, AJIL 24 (1930), 486–499; Alphonse Rivier, Lehrbuch des Vo¨lkerrechts, vol. I (2nd edn. 1899); Yoshifumi Tanaka, The International Law of the Sea (2nd ed. 2015); Kai Tru¨mpler, Grenzen und Abgrenzungen des Ku¨stenmeeres (2007); Wolfgang Graf Vitzthum, Begriff, Geschichte und Rechtsquellen des Seerechts, in: Wolfgang Graf Vitzthum (ed.), Handbuch des Seerechts (2006), 1–61; George K. Walker, Definitions for the Law of the Sea – Terms not Defined by the 1982 Convention (2012) Documents: GA Res. 1307 (XIII) of 10 December 1958; IHO, A Manual on Technical Aspects of the United Nations Convention on the Law of the Sea, Special Publication No. 51 (edition 5.0.0, 2014); ILC, Re´gime of the Territorial Sea: Rapport par J.P.A. François, rapporteur spe´cial, UN Doc. A/CN.4/53 (1952), ILC Yearbook (1952), vol. II, 25–43; ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4–12; ILC, First Report on Unilateral Acts of States by Victor Rodriguez-Cedeno, Special Rapporteur, UN Doc. A/CN.4/486 (1998); ILC, Third Report on Unilateral Acts of States by Victor Rodriguez-Cedeno, Special Rapporteur, UN Doc. A/CN.4/505 (2000); The International Bureau of Weights and Measures, The International System of Units (SI) (8th edn. 2006); UN DOALOS, Baselines: An Examination of the Relevant Provisions of the United Nations Convention on the Law of the Sea (1989); UN DOALOS, National Claims to Maritime Jurisdiction – Excerpts of Legislation and Table of Claims (1992) Cases: ECJ, Case C-146/89, Commission v. United Kingdom, 1991 ECR I-03533, I-03533; ICJ, Fisheries Case (United Kingdom v. Norway), Judgment of 18 December 1951, ICJ Reports (1951), 116; The Anna Case [1805] 165 E.R. 809, 817, 814 (UK); Twee Gebroeders (The Espiegle and four Dutch Vessels) [1800] 165 E.R. 422, 423 (UK) Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘Every State has the right to establish the breadth of its territorial sea’. . . . . . . . . . 2. ‘up to a limit not exceeding twelve nautical miles’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘measured from baselines determined in accordance with this Convention’. . . . .

1 3 9 9 11 14

I. Purpose and Function First and foremost, Art. 3 is at the core of the answer to one of the crucial questions of the 1 law of the sea: How far does the State’s jurisdiction extend out to sea? The answer to this question eluded the Hague codification conference in 1930 as well as UNCLOS I and UNCLOS II. At UNCLOS III it was agreed to limit full State sovereignty at 12 NM. As a demonstration of the importance UNCLOS III attached to this number, Part II opens with the 12 NM numerical limit and only then proceeds to establish the starting point and the method of measurement of this distance. Next to its obvious function to provide a spatial limit to the extent of the territorial sea, 2 Art. 3 introduces two other principles: First, it is the right of the State ‘to establish the breadth of its territorial sea’. The State must act to establish the breadth of the territorial sea. Perhaps surprisingly it is not fixed as in the case of the continental shelf (� Art. 77). This is an implication of the second principle, that the territorial sea may extend ‘up to a limit not exceeding’ 12 NM. The State is free to choose any breadth of the territorial sea as long as it

Tru¨mpler

35

Art. 3

3–4

Part II. Territorial sea and contiguous zone

does not exceed 12 NM. Again, this is in contrast to the continental shelf, which exists ipso facto and ab initio without any declaration on the side of the coastal State. Its task is merely to technically determine the outer limit. For the territorial sea, the State must decide on its breadth and proceed to establish the baseline as well as the outer limit, pursuant to Part II.

II. Historical Background The debate about the extent of the territorial sea dominated the law of the sea for centuries. In the middle of the 17th century, at a time when the question of open or closed seas started to be resolved in favour of open seas,1 when the domination of large expanses of sea proved practically impossible,2 State’s began to focus their interest on coastal waters. 3 While there was widespread acceptance as to the sovereignty of the coastal State over the waters adjacent to its coast, the extent of its sovereignty was unclear. Next to other criteria, such as line of sight, the cannon-shot rule began to gain acceptance, probably originating in the law of armed conflict at sea, in particular in prize law.4 CORNELIUS VAN BJINKERSHOEK contributed decisively to condense emerging State practice into a rule of international law with his two works, ‘De dominio maris dissertatio’ and ‘Quaestionem juris publici’.5 He postulated that ‘the power of the land properly ends where the force of arms ends. Therefore the sea can be considered subject as far as the range of cannon extends’. 6 It is unclear how this cannon-shot rule evolved into the 3 NM limit: It may have been because acceptance emerged that 3 NM was the effective range of weaponry7; or the three-mile limit was a parallel and independent development to the cannon-shot rule8, or the three-mile limit was an illustration of the cannon-shot rule.9 4 It appears that at the turn of the 18th to the 19th century, both concepts had merged at least partially and the three-mile limit was widely understood as determining the spatial limit of the cannon shot rule.10 This understanding was independent of the presence of coastal artillery on site.11 In the 19th century, the three-mile limit began to be applied by important 3

1 Wolfgang Graf Vitzthum, Begriff, Geschichte und Rechtsquellen des Seerechts, in: Wolfgang Graf Vitzthum (ed.), Handbuch des Seerechts (2006), 1, 31–33 (MN 65–68). 2 Daniel P. O’Connell, The International Law of the Sea, vol. I (1982), 125. 3 There are indications of prior State practice of claiming territorial waters, such as the establishment of a territorial sea in the middle of the 14th century at the Flemish coast, see Fritz Mu¨nch, Ku¨stengewa¨sser, in Karl Strupp/Hans-Ju¨rgen Schlochauer (eds.), Wo¨rterbuch des Vo¨lkerrechts, vol. 2 (2nd edn. 1961), 388. However, these do not seem to have been widespread. 4 O’Connell (note 2), 126. 5 Cornelius van Bijnkershoek, Quaestionem juris publici, The Classics of International Law 14 (English translation 1964), 54[59]. Square brackets refer to original page number, other to the page number of the translation. 6 Cornelius van Bijnkershoek, Opera Minora, De Dominio maris dissertation, The Classics of International Law (engl. Translation 1964), 44 [364]. Square brackets refer to original page number, other to the page number of the translation. 7 Oppenheim (note 4). 8 H. S. K. Kent, The Historical Origins of the Three-Mile Limit, AJIL 48 (1954), 538–539, with reference to the practice of Scandinavian States; cf. Norwegian Pleadings to the International Court of Justice in the Fisheries Case for several detailed descriptions of state practice in that respect, ICJ, Fisheries Case (United Kingdom v. Norway), Oral Proceedings (1951), 165 et seq. 9 Thomas Baty, The Three-Mile Limit, AJIL 22 (1928), 503, 516. 10 Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 78. 11 Ibid.

36

Tru¨mpler

Breadth of the territorial sea

5–6

Art. 3

maritime States beyond the rules on naval warfare12 to fishery zones.13 However, it seems that outside its origins in the Anglo-American sphere of legal influence, the three-mile limit never was universally accepted.14 The Hague Conference on Codification of International Law in 1930 showed the lack of a 5 consistent practice or opinio juris among States on the breadth of the territorial sea. Collating State practice as rapporteur in preparation of the conference, S CHU¨CKING concluded that, while the cannon-shot rule was universally accepted, using the range of modern artillery would clearly lead to disproportionate results. As the three-mile limit was in his view not universally accepted, he proposed six miles as an acceptable compromise. 15 While the preparatory committee eventually settled on the three-mile limit,16 the 1930 conference itself remained deeply divided on the breadth of the territorial sea.17 Without agreement on the breadth of the territorial sea, it became clear that no draft convention would be forthcoming. 18 State practice in the 1950s was non-uniform.19 UNCLOS I clearly showed economic 6 reasons at the heart of the dispute, in particular the right of third States to fish in coastal waters.20 Just as the 1930 Hague conference showed a minimum agreement that the State is 12 An act in addition to the Act for the Punishment of Certain Crimes Against the United States, U.S. Statutes at Large I (1789–1799), 381, 384, available at: http://www.constitution.org/uslaw/sal/sal.htm; O’Connell (note 2), 131, notes the correspondence between Jefferson and the British and French governments preceding the legislation which referenced the cannon shot rule; Twee Gebroeders (The Espiegle and four Dutch Vessels) [1800] 165 E.R. 422, 423 (UK); ‘We all know that the rule of law on this subject is “terrae dominium finitur, ubi finitur armorum vis” and since the introduction of fire-arms, that distance has usually been recognised to be about three miles from the shore.’ The Anna Case [1805] 165 E.R. 809, 817, 814 (UK). 13 A Convention to Regulate the Commerce between the Territories of the United States and of His Britannic Majesty, 3 July 1815, TS 112, 59. 14 Alphonse Rivier, Lehrbuch des Vo ¨ lkerrechts, Bd. 1 (2nd edn. 1899), 134: ‘Diese Entfernung [3 sm, Anm. d. Verf.] ist offenbar zu gering und hat durchaus keinen Anspruch auf allgemeine Geltung’. League of Nations, Committee of Experts for the Progressive Codification of International Law: Questionnaire No. 2: Territorial Waters, LN Doc. C.44.M.21.1926.V (1926), Annex I: Memorandum by M. Schu¨cking, reproduced in: Shabtai Rosenne (ed.), League of Nations Committee of Experts for the Progressive Codification of International Law, vol. II: Documents (1972), 55, with detailed references to contradictory State practice (see also table, ibid., 83). However, it must be noted that other States did at times accept a 3 NM limit, e. g. in the First World War the Berlin High Prize Court (Oberprisengericht) ruled that the 3 NM limit was the only accepted limit of the territorial sea, see Sigurd R. Bjo¨rksten, Das Wassergebiet Finnlands in vo¨lkerrechtlicher Hinsicht (1925), 44; for details on Scandinavian claims for a 4 NM territorial sea, see Thorsten Kalijarvi, Scandinavian Claims to Jurisdiction over Territorial Waters, AJIL 26 (1932), 57–69. Baty asserted in 1928 that the rule was ‘supreme in practice’, but 56 out of 89 cited ‘affirmations’ are based on Anglo-American practice, while others involve litigation involving citizens from these countries in other States, Baty (note 10), 517–532. 15 Memorandum Schu ¨ cking (note 15), 62. 16 League of Nations, Conference for the Codification of International Law: Bases of Discussion for the Conference Drawn Up by the Preparatory Committee, vol. II: Territorial Waters, LN Doc. C.74.M.39.1929.V.2 (1929), 33: ‘The breadth of the territorial waters under the sovereignty of the coastal State is three nautical miles’. 17 For a 3 NM limit: the delegations of South Africa, Federal Republic of Germany (plus contiguous zone), USA, Belgium, UK (also on behalf of the government of Australia), Canada, Chile (plus contiguous zone, otherwise 6 NM), China, Denmark, Egypt (plus contiguous zone), Estonia (plus contiguous zone), Greece, India, Ireland, Japan, the Netherlands, Poland (plus contiguous zone); for a 6 NM limit: the delegations of Columbia, Cuba, Spain (plus contiguous zone), Italy, Latvia (plus contiguous zone), Persia (plus contiguous zone), Portugal (plus 6 NM contiguous zone, otherwise 12 NM), Romania, Turkey, Uruguay, Brasil and Yugoslavia; for a four NM limit: the delegations of Finland (with the option for a 3 NM zone), Iceland, Norway and Sweden; the delegation of Czechoslovakia abstained, the USSR proposed not to settle on a fixed limit. Of 36 countries, 18 voted for a 3 NM limit or were prepared to accept it, 12 preferred 6 NM, see Shabtai Rosenne (ed.), Conference for the Codification of International Law, vol. IV (1975), 1325–1327; cf. Jesse S. Reeves, The Codification of the Law of Territorial Waters, AJIL 24 (1930), 493. 18 See among others the official records of the 7 April 1930 session, reproduced in: Rosenne (note 18), 1348– 1362. 19 ILC, Re ´gime of the Territorial Sea: Rapport par J.P.A. François, rappoteur spe´cial, UN Doc. A/CN.4/53 (1952), ILC Yearbook (1952), vol. II, 25, 26. 20 First Committee UNCLOS I, Territorial Sea and Contiguous Zone, UN Doc. A/CONF.13/39 (1958) OR III, 174–175. For a short summary of proposals, see UNCLOS I, Report of the First Committee, UN Doc. A/ CONF.13/L.28/REV.1 (1958) OR II, paras. 6–25; UNCLOS I, 38th Meeting, UN Doc. A/CONF.13/39 (1958) OR III, 114–115. Most of the proposals at the conference included some form of compromise between a territorial sea and a contiguous fishery zone.

Tru¨mpler

37

Art. 3

7–8

Part II. Territorial sea and contiguous zone

entitled to a territorial sea that extends to three nautical miles, 21 the text of UNCLOS I can be read to reflect an agreement that a territorial sea beyond 12 NM is inconsistent with international law: Art. 24 UNCLOS I sets the outer limit of the contiguous zone at 12 NM; as the contiguous zone extends seaward of the territorial sea, the drafters – while not agreeing on the details – envisaged some control of the coastal State to be exercised up to 12 NM from the coast, but not further.22 UNCLOS II, convened in 1960 with the explicit mandate to consider ‘further the questions of breadth of the territorial sea and fishery limits’, 23 but for one vote reached agreement with a proposal for a 6 NM territorial sea and a 6 NM fisheries zone.24 The rapid expansion of territorial sea claims over the next two decades casts doubt on the assumption that a 6 NM limit could have lasted even if opinio juris had crystallized for that brief moment at UNCLOS II. The (perceived) need to ensure economic control over the adjacent coastal seas was considered to be too pressing. 25 7 At UNCLOS III the practice of States had changed dramatically. A number of States, particularly in Latin America, had claimed a 200 NM territorial sea on patrimonial grounds.26 One of the reasons for convening UNCLOS III was the desire of the USA and the USSR as naval powers to limit the rapid expansion of claims to coastal waters. 27 After some hesitation,28 in 1975 the conference settled on the 12 NM limit.29 The emergence of the exclusive economic zone (EEZ) as a legal concept in the negotiating texts suggests that an agreement on the limit of the territorial sea was possible only because the concurrent introduction of functional sovereign rights in the EEZ dissociated full sovereignty from the right of economic exploitation for the coastal States. Hence, the most pressing economic topics, in particular fishery rights, were uncoupled from the negotiations of the breadth of the territorial sea. Further, UNCLOS III balanced competing security interests of naval powers and some coastal States with detailed provisions for the regime of innocent passage through the territorial sea and the introduction of the regime of transit passage. 30 8 Since the adoption of the Convention, the 12 NM limit has gained near universal acceptance.31 While the maximum limit set out in Art. 3 is straightforward in itself, it must 21

The records do not appear to show any proposal being made for a smaller territorial sea. The International Law Commission, in its preparations for UNCLOS I, reached an agreement that a territorial sea of more than 12 NM was not consistent with international law, but could not reach agreement on how a territorial sea of more than 3 NM could be validly claimed even in relation to persistent objectors, ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 265–266 (Commentary to Art. 3). 23 GA Res. 1307 (XIII) of 10 December 1958; cf. Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995), 77. 24 The vote was 54 to 28 with five abstentions, UNCLOS II, Fourteenth Plenary Meeting, UN Doc. A/ CONF.19/SR.14 (1960), OR, 30; cf. Myron H. Nordquist (ed.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. I (1985), Introduction xxv. 25 See also Proelss on Art. 55 MN 4–9. 26 Proelss on Art. 55 MN 9. 27 O’Connell (note 2), 164. 28 The Sea-Bed Committee originally could not agree on the 12 NM limit as a number of States were arguing for a broader territorial sea, see Nordquist/Nandan/Rosenne (note 24), 77–82. 29 UNCLOS III, Informal Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/PART II (1982), OR IV, 152. 30 Cf. John Norton Moore, The Regime of Straits and the Third United Nations Conference on the Law of the Sea, AJIL 74 (1980), 90 et seq. 31 Of the few remaining States not parties to the UNCLOS, only Benin, Ecuador (in connection with the Galapagos islands), El Salvador, Peru, the Philippines, Somalia, and Togo are claiming more than 12 NM. There appears to be only a very small number of States that claim a territorial sea of less than 12 NM (Jordan, Greece, and Turkey), all of which seem to have a special geographic situation; of those, only Turkey is not party to the UNCLOS (6 NM in the Aegean Sea, but 12 NM in the Black Sea), see UN DOALOS, National Claims to Maritime Jurisdiction – Excerpts of Legislation and Table of Claims (1992) and updated Table of claims to maritime jurisdiction (as at 15 July 2011) http://www.un.org/depts/los/LEGISLATIONANDTREATIES/claims.htm. No State seems to be in a position to object to a 12 NM limit, see Churchill/Lowe (note 11), 80. In particular the USA accepted territorial seas of other States based on customary law as reflected in the Convention, see Statement by the President of 10 March 1983, LOSB 1 (1983), 80, 81, and has claimed a 12 NM limit, see: Territorial Sea of the United States of America, A Proclamation of 27 December 1988, LOSB 12 (1988), 18. 22

38

Tru¨mpler

Breadth of the territorial sea

9–11

Art. 3

be viewed together with Art. 56. Only if both provisions are accepted as an integral and interrelated package will it become clear how UNCLOS III was able to succeed where three prior attempts failed.

III. Elements 1. ‘Every State has the right to establish the breadth of its territorial sea’ The following principle lies at the core of Art. 3: the State creates its own territorial sea in a 9 unilateral act, restricted by international law, specifically by the regulations of Part II. It is the right of the State to establish the breadth of its territorial sea. While the term ‘coastal’ is not used in Art. 3 (in contrast to Arts. 56 and 76), Arts. 2 and 5 make it clear that only the coastal State can establish the breadth of its territorial sea. There can be no territorial sea without a corresponding coast. The coastal State has no duty to establish the breadth of its territorial sea up to 12 NM, this would clearly run counter to the wording of the Convention. Less clear are the consequences of not establishing the exact breadth of the territorial sea, in particular if a State can choose not to have a territorial sea at all. Art. 3 does presume the existence of a territorial sea; merely the breadth needs to be established. 32 The State establishes the territorial sea in a unilateral act. 33 The particular characteristic of 10 this act is that it must be undertaken within the limits circumscribed by international – i. e. other States’ – consent according to the UNCLOS. Establishing the breadth of the territorial sea is one of five such unilateral acts in the UNCLOS.34 While it can be argued that, due to the prior consent of contracting parties, the establishment of the breadth of the territorial sea is not a unilateral act in the strict sense, this argument somewhat overlooks the situation before the UNCLOS. At a time when there was no consensus among States as to a territorial sea beyond 3 NM, the acquisition of sovereign rights in adjacent coastal waters beyond 3 NM was necessarily based on unilateral acts, which in turn coalesced into State practice. 35 With the near universal acceptance of Part II UNCLOS, the result of this difference remains largely semantic, as there is agreement in substance: As long as the State acts within the framework of the Convention, it can establish the breadth of its territorial sea as it sees fit; other States, in particular flag States, are under an obligation of acceptance. If the State leaves the conventional framework, it is acting ultra vires and, in relation to other States, it cannot validly claim the coastal waters as territorial sea.36

2. ‘up to a limit not exceeding twelve nautical miles’ The State is free to establish the breadth of its territorial sea up to 12 NM. There is no 11 obligation to use the full distance, though the full use of this limit is almost universal. As indicated above, there is an implication that the breadth cannot be established at zero. The 32 However, the question may be of little practical relevance. There is no evidence known to the author of land territories adjacent to the sea that do not also generate a territorial sea. There may be circumstances in which the states claim a territorial sea very close to an opposite state; but that is a matter of delimitation and does not call into question the generation of territorial sea by the appurtenant coast in principle. 33 Rene-Jean Dupuy/Daniel Vignes (eds.), A Handbook on the New Law of the Sea (1990), 357; ECJ, Case C146/89, Commission v. United Kingdom, 1991 ECR I-03533, I-03533; ILC, Third Report on Unilateral Acts of States by Victor Rodriguez-Cedeno, Special Rapporteur, UN Doc. A/CN.4/505 (2000), 9. 34 Vladimir-Duro Degan, Sources of International Law (1997), 335. 35 ILC, First Report on Unilateral Acts of States by Victor Rodriguez-Cedeno, Special Rapporteur, UN Doc. A/ CN.4/486 (1998), 19; Degan (note 35), 334. By nature of the claim, it was made towards all flag States, as bilateral agreements would have been impracticable. The issue of establishing the territorial sea between neighboring and opposing States is dealt with in Art. 15: see particularly Symmons on Art 15 MN 1–2 and 9 et seq. Settlements are almost invariably formalized in explicit agreements. See also O’Connell (note 2), 31 and 33 et seq., on the influence of unilateral acts on the law of the sea in general. 36 See Churchill/Lowe (note 11), 80, on the question of an obligation of acceptance of excessive claims by States that themselves claim a territorial sea of more than 12 NM.

Tru¨mpler

39

Art. 3

12–13

Part II. Territorial sea and contiguous zone

UNCLOS establishes not only rights but also responsibilities for the coastal State. The de facto dereliction of its territorial sea would be the strongest possible indicator of an attempt to avoid these responsibilities; e. g. the State may try avoid its obligations under Part XIII. In practice, no State has claimed a territorial sea of less than 3 NM. 37 The claim to a territorial sea broader than 12 NM38 is ultra vires and does not create duties and obligations for third States.39 If a State claims an excessive territorial sea, it can be assumed that the intention was to claim the maximum possible extent under international law. Rather than considering the whole act establishing the territorial see as ultra vires and invalid, only the exceeding part should be so qualified. To consider the whole act invalid would lead to uncertainties that are clearly not desired by the UNCLOS; e. g. it would be difficult to ascertain the latest previous valid act of establishing a territorial sea.40 12 A nautical mile equals a distance of 1,852 m. ‘The nautical mile is a special unit employed for marine and aerial navigation to express distance. The conventional value given here [1,852 m] was adopted by the First International Extraordinary Hydrographic Conference, Monaco 1929, under the name ‘International nautical mile’. As yet there is no internationally agreed symbol, but the symbols M, NM, Nm, and nmi are all used […]. The unit was originally chosen, and continues to be used, because one nautical mile on the surface of the Earth subtends approximately one minute of angle at the centre of the Earth, which is convenient when latitude and longitude are measured in degrees and minutes of angle.’41

13

Before 1929,42 different lengths for the ‘sea-mile’ were in use, ranging from 1,851.8 m in Portugal and Spain to 1,854 m in Belgium.43 The International Hydrographic Bureau proposed to adopt a length of 1,852 m for the sea-mile at the First Extraordinary Hydrographic Conference in 1929 in Monaco.44 The proposal was adopted with slight modifications.45 The UNCLOS does not define the nautical mile as being equivalent to the internationally agreed nautical mile of 1,852 m. Nevertheless, the history of the text as well as prior and subsequent State practice suggests agreement that the nautical mile referred to in the UNCLOS is equal to 1,852 m.46 It seems that most States claiming maritime zones have 37

Yoshifumi Tanaka, The International Law of the Sea (2nd edn. 2015), 85. See UN DOALOS National Claims to Maritime Jurisdiction (note 32). 39 See supra, MN 10. 40 Kai Tru ¨ mpler, Grenzen und Abgrenzungen des Ku¨stenmeeres (2007), 190; cf. Churchill/Lowe (note 11), 80. 41 The International Bureau of Weights and Measures, The International System of Units (SI) (8th edn. 2006), 127 (table 8), available at: http://www.bipm.org/utils/common/pdf/si_brochure_8_en.pdf; see also: League of Nations, Committee of Experts for the Progressive Codification of International Law: Questionnaire No. 2: Territorial Waters, LN Doc. C.44.M.21.1926.V (1926), Annex IV: Draft Convention Amended By M. Schu¨cking in Consequence of the Discussion in the Committee of Experts, reproduced in: Shabtai Rosenne (ed.), League of Nations Committee of Experts for the Progressive Codification of International Law, vol. II: Documents (1972), 98 (Art. 2: ‘the zone of the coastal sea shall extend for three marine miles (60 to the degree of latitude)’). 42 George K. Walker, Definitions for the Law of the Sea – Terms not Defined by the 1982 Convention (2012), 247–249, 248 gives 1959 as the date since which ‘the current international nautical mile has been 6076.115 feet or 1852 meters’. 43 Vanssay de Blavous, Units of Length, Hydrographic Review 5 (1928), 231, giving two main reasons for the unification of the sea-mile: the measurement of the speed of ships, where he gave speed-trials as a particular example, and to make working with charts easier under certain conditions. 44 Report of the Proceedings of the First Supplementary International Hy drographic Conference, Monaco 9– 20 April 1929, 105. 45 Ibid., 251: ‘the length represented by 1852 times that of the international standard prototype of the metre shall be the International Nautical Mile.’ Interestingly, the reference is tied to the actual prototype and not to the metre itself. 46 IHO, A Manual on Technical Aspects of the United Nations Convention on the Law of the Sea, Special Publication No. 51 (5th edn. 2014), para. 3.6.1, Ch. 3–11 states clearly: ‘The standard unit of distance and length measurement stipulated in the LOS Convention is the International nautical mile (M). This nautical mile, approved by IHO at the International Hydrographic Conference of 1929, has a value of 1852 metres and is equivalent to the length of a minute of arc of geographical latitude at about 44 degrees of latitude.’ At UNCLOS I, the UK proposal for the territorial sea limits contained the definition: ‘For the purposes of this convention, the term “mile” means nautical mile (1,852 metres) reckoned at sixty to one degree of latitude.’, UNCLOS I, United Kingdom of Great Britain and Northern Ireland (Articles 1 and 3): Proposal, UN Doc. A/CONF.13/C.1/L.134 (1958), OR III, 247; A Columbian proposal took up this definition, UNCLOS I, Colombia: Proposal (Articles 1, 2, 38

40

Tru¨mpler

Art. 4

Outer limit of the territorial sea

used the international nautical mile; at least the most current compilation of maritime claims does not suggest otherwise,47 although, in fact a definition of ‘nautical mile’ is often omitted in territorial sea legislation submitted to the UN.48 The result of the 1929 conference is not legally binding upon the parties of the UNCLOS.49 However, it must be noted that the UNCLOS specifies in Art. 16 that baselines ‘be shown on charts of a scale or scales adequate for ascertaining their position’. This refers to nautical charts. 50 Nautical charts are the subject of International Hydrographic Organisation (IHO) recommendations, indicating a strong link between the technical recommendations of IHO and legal aspects of delimitation. 51

3. ‘measured from baselines determined in accordance with this Convention’ The UN Baseline Study defines baselines as ‘[t]he line from which the seaward limit of a 14 State’s territorial sea and certain other maritime zones of jurisdiction are measured’. 52 ‘In accordance with this Convention’ clarifies that the coastal State may not use arbitrary 15 baselines to establish its territorial sea (and other maritime zones) but only those determined in the framework of UNCLOS. These are the normal baseline (Art. 5), the baseline on certain fringing reefs (Art. 6), straight baselines (Art. 7), straight baselines or historically ‘closing lines’53 across rivers (Art. 9) and certain bays (Art. 10), as well as archipelagic baselines (Art. 47).54 It is to be noted that Art. 11 and 13 do not establish a special category of baselines but clarify technical aspects regarding ports, and low tide elevations; in particular, whether these may be used in fixing any of the other possible baselines.

Article 4 Outer limit of the territorial sea 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. Bibliography: S. Whittemore Boggs, Delimitation of the Territorial Sea: The Method of Delimitation Proposed by the Delegation of the United States at the Hague Conference for the Codification of International Law, AJIL 33 (1930), 541–555; H. M. Cleminson, Laws of Maritime Jurisdiction in Time of Peace with Special Reference to Territorial Waters, BYBIL 6 (1925), 144–158; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Myron H. Nordquist/ Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995); Daniel P. O’Connell, The International Law of the Sea, vol. I (1982); W. Michael 3 and 66), UN Doc. A/CONF.13/C.1/L.82 (1958), OR III, 172–173 (paras 22, 23); at UNCLOS II the US and Canada 6 + 6 mile proposal contained a similar definition, see UNCLOS II, Canada and the United States of America: Proposal, UN Doc. A/CONF.19/L.11 (1960), OR I, 173; UNCLOS III materials contain little reference to a specific definition of nautical mile, see also on other aspects Nordquist/Nandan/Rosenne (note 24), 44; Canada, Legal Bureau, Memorandum: Nautical Mile – Definition, CYIL 18 (1980), 310. 47 However, referencing O’Connell, Walker (note 43), 248 (footnote 745) indicates that Spain, UK and Scandinavia may use different lengths, though no current practice is given. 48 See for example United States of America, A Proclamation (note 32) and LOSB 27 (1995), 6 et seq., following the deposit of information by Germany. See the Territorial Sea and Exclusive Economic Zone Act 1977, Act No. 28 of 26 September 1977 as amended by Act No. 146 of 1980 (New Zealand) as an example including a definition of nautical mile, available at: http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/ NZL_1980_Act.pdf. 49 See Walker (note 43), 247–248, for a more detailed analysis, pointing out that another definition [other than 1,852 m] may apply inter alia in law of armed conflict governed situations. 50 Tru ¨ mpler on Art. 5 MN 28–32. 51 IHO Manual on Technical Aspects (note 47), Preface-1 et seq., for historic context. 52 UN DOALOS, Baselines: An Examination of the Relevant Provisions of the United Nations Convention on the Law of the Sea (1989), 50 (para. 11). 53 O’Connell (note 2), 352–353. 54 Cf. Tanaka (note 38), 50, who categorizes into four types: normal baselines, straight baselines, closing lines across river mouths and bays, and archipelagic baselines.

Tru¨mpler

41

Art. 4

1–2

Part II. Territorial sea and contiguous zone

Reisman/Gayl S. Westerman, Straights Baselines in International Maritime Boundary Delimitation (1992); Aaron L. Shalowitz/Michael W. Reed, Shore and Sea Boundaries, vol. I (1962); Kai Tru¨mpler, Grenzen und Abgrenzungen des Ku¨stenmeeres (2007) Documents: ILC, Additif au deuxie`me rapport de M. J. P. A. François, rapporteur spe´cial, UN Doc. A/CN.4/61/ ADD.1 (1953), ILC Yearbook (1953), vol. II, 75–78; ILC, Regime of the Territorial Sea: Troisie`me rapport de J.P.A Francois, rapporteur spe´cial, UN Doc. A/CN.4/77 (1954), ILC Yearbook (1954), vol. II, 1–6 Cases: ICJ, Fisheries Case (United Kingdom v. Norway), Judgment of 18 December 1951, ICJ Reports (1951), 116 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘the territorial sea’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘the line’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 5 5 6

I. Purpose and Function 1

While Art. 4 might seem self-evident at first glance, it serves a crucial purpose in clearly defining a unique line as the outer limit of the territorial sea. There is only one line that has the geometrical properties described.1 Art. 4 does not mandate a specific method to arrive at this line. The breadth of the territorial sea and the baselines alone are insufficient to define a clear, unambiguous outer limit of the territorial sea. A rule for deriving the outer limit from the baselines is needed. Simply tracing a line parallel to the coast will not produce an unambiguous result and can potentially lead to uncertainty and disputes as ever the applicable outer limit of the territorial sea.

II. Historical Background 2

Art. 4 can be traced to the arcs-of-circles method which was first proposed as a general rule to determine the outer limit of the territorial sea at the Hague codification conference. Before the Conference in 1930, there was little discussion on the method best suited to determine the outer limit of the territorial sea.2 It certainly seems that participants at the conference were unaware of any prior practice, so two proposals were debated on equal merits: the trace´ paralle`le and the arcs-of-circles method proposed by the US delegation. The trace´ paralle`le was proposed as a line parallel to the coastline, drawn at the distance of the limit of the territorial sea. It originated with the requirement that the outer limit of the territorial sea must follow ‘all the sinousities of the coast’. 3 However, the actual drawing of the trace´ paralle`le is somewhat arbitrary (see Figure 4.1 below) and would not result in a line in accordance with Art. 4. It would not be easy for a ship to determine its position in relation to the territorial sea if its outer limit was marked by the trace´ paralle`le, as there are no unambiguous rules on how the parallel to the coastline should be drawn. 1 S. Whittemore Boggs, Delimitation of the Territorial Sea: The Method of Delimitation Proposed by the Delegation of the United States at the Hague Conference for the Codification of International Law, AJIL 33 (1930), 544. 2 In the Fisheries Case, the International Court of Justice explicitly stated ‘The arcs of circles method, […] is a new technique in so far as it is a method for delimiting the territorial sea’ and ‘not obligatory by law’, see ICJ, Fisheries Case (United Kingdom v. Norway), Judgment of 18 December 1951, ICJ Reports (1951), 116, 129. However, Aaron L. Shalowitz/Michael W. Reed, Shore and Sea Boundaries, vol. I (1962), 73 (footnote 14), state the method was well known ‘long before 1930’ and refer to a UK proposal from 1928 in connection with a proposed agreement with Norway and to the delimitation of a 3-mile belt in the Firth of Clyde in 1911. 3 W. Michael Reisman/Gayl S. Westerman, Straights Baselines in International Maritime Boundary Delimitation (1992), 12; also ILA, Draft Convention: Laws of Maritime Jurisdiction in Time of Peace, Report of the 34th Conference (1926), 42–45 (Art. 7); for the history of this draft see H. M. Cleminson, Laws of Maritime Jurisdiction in Time of Peace with Special Reference to Territorial Waters, BYBIL 6 (1925), 144–158; Daniel P. O’Connell, The International Law of the Sea, vol. I (1982), 379.

42

Tru¨mpler

Outer limit of the territorial sea

3

Art. 4

Fig. 4.1 The different approaches to delimiting the territorial sea, in particular the difference between the trace´ paralle`le (a) and the envelopes of arcs-of-circles method (c).4 Note that (a) does not result in a line every point of which is at a distance from the nearest point of the baseline equal to the breadth of the territorial sea. The comparison to (c) shows quite clearly that for example point B is less than 3 NM from the outer limit. Source: Boggs (note 1), 541, 546 (Fig. 1). Reproduced with permission from � The American Society of International Law. In the end, the Hague conference could not agree on a proposal, and the International 3 Court of Justice’s (ICJ) judgment in the Fisheries Case did little to clarify the law on the outer limit of the territorial sea on this point.5 In the years following the ICJ decision, the International Law Commission (ILC) drew heavily on the work of the Hague Conference in preparation for UNCLOS I.6 It proposed what was to become the definition of the outer limit of the territorial sea in UNCLOS I (Art. 6), as well as in the UNCLOS. 7 4 Boggs (note 1), 541, 546 (Fig. 1), original caption: ‘Suggested methods of delimiting the territorial sea: (a) Lines following the sinuosities of the coast, drawn parallel to the general trend of the coast. A vague and impracticable idea. (b) Straight lines parallel to straight lines, drawn between selected points on a concave coast (with the arcs of circles elsewhere). This illustration is copied from an unpublished foreign chart. (c) The American proposal: a line every point of which is exactly three nautical miles from the nearest point on the coast, described as the envelope of the arcs of circles of three-mile radius drawn from all points on the coast.’ 5 Kai Tru ¨ mpler, Grenzen und Abgrenzungen des Ku¨stenmeeres (2007), 35; see also Tru¨mpler on Art. 7 MN 4–8. 6 O’Connell (note 3), 232–233; ILC, Regime of the Territorial Sea: Troisie `me rapport de J.P.A François, rapporteur spe´cial, UN Doc. A/CN.4/77 (1954), ILC Yearbook (1954), vol. II, 1, 4 (see in particular Art. 7). 7 ILC Third Report on the Territorial Sea (note 6), 4; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995), 83, 85.

Tru¨mpler

43

Art. 4 4

4–7

Part II. Territorial sea and contiguous zone

The ILC’s Special Rapporteur FRANÇOIS proposed the following wording for Art. 7 (now Art. 4): ‘[1]The outer limit of the territorial sea is the line, every point of which is at a distance of T miles from the nearest point of the base line (T being the breadth of the territorial sea). [2]It constitutes a continuous series of intersecting arcs of circles drawn with a radius of T miles from all points on the base line. [3]The limit of the territorial sea is formed by the most seaward arcs.’ 8

The wording of the proposed Art. 7 was based on the work of an expert committee on technical questions of the delimitation of the territorial sea. 9 In the end, the ILC decided that the ‘rule as such was really given in full in the first sentence’, and added the remaining sentences to the commentary.10

III. Elements 1. ‘the territorial sea’ 5

Art. 4 does not fix a certain breadth of the territorial sea; its rule is independent of the actual distance agreed for the outer limit.11 Its function is to describe a clear and unambiguous line for the outer limit of the territorial sea for a given breadth thus avoiding any doubt on the exact position of the outer limit of the territorial sea.

2. ‘the line’ 6

Art. 4 describes a line that is unique, i. e. there is only one such line. 12 A succinct description under the name ‘envelope line’ has been given by SHALOWITZ: ‘Geometrically, the envelope line is the locus of the center of a circle the circumference of which is always in contact with the coastline, that is, with the low-water line or the seaward limits of inland waters. Although often referred to as the ‘arcs-of-circles’ method, because of the manner in which the line can be drawn (by swinging arcs from points along the coastline), it will occasion less confusion if thought of in its geometric sense, that is, as a derivative of the coastline.’ 13

7

It is important to note that the wider the territorial sea, the fewer the number of points along the coastline that will determine the ‘locus’ of the center. A wider territorial sea is determined by relatively fewer coastal points, with the effect that even a fairly irregular coastline will result in a relatively even outer limit of the territorial sea. 14

8 ILC Third Report on the Territorial Sea (note 6), 4 (Art. 7). English translation according to 258th Meeting of the ILC, ILC, Summary Records of the Meetings of the 6th Session, ILC Yearbook (1954), vol. I, 81, 85 (footnote 13, Art. 7) [sentence numbering added by author]. 9 ILC, Additif au deuxie `me rapport de M. J.P.A. François, rapporteur spe´cial, UN Doc. A/CN.4/61/ADD.1 (1953), ILC Yearbook (1953), vol. II, 75, 79 (Annexe: ‘Rapport du Comite´ d’experts sur certaines questions d’ordre technique concernant la mer territorial’, V). The mimeographed English translation can be found in Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 59–63. It is interesting that W. Boggs, the author of the American proposal at the Hague Codification conference, was a member of the expert committee. 10 ILC, Summary Records of the Meetings of the 6th Session, ILC Yearbook (1954), vol. I, 86, 87 (259th Meeting – Discussion of Art. 7). 11 However, when measuring distances considerably greater than 12 NM, Eucledian geometry will be replaced by spherical geometry, and the swinging of arcs on charts will lead to erroneous results. 12 Shalowitz/Reed (note 2), 171. 13 Ibid.; also quoted in John P. Grant/J. Craig Barker, Parry and Grant Encyclopedic Dictionary of International Law (3rd edn. 2009), 186:‘Envelope Line’. 14 This point is illustrated by Figure 7.1: Tru ¨ mpler on Art. 7 MN 21.

44

Tru¨mpler

Art. 5

Normal baseline

Fig. 4.2 ‘The envelope line is the locus of the center of a circle rolled along the coastline with circumference always in contact with it.’15 Source: Shalowitz/Reed (note 2), 171 (Fig. 27) In contrast to the trace´ paralle`le, the outer limit of Art. 4 allows for easy determination of 8 whether a ship is within the territorial sea (see Fig.).

Fig 4.3 ‘The navigator’s method of ascertaining whether he is in territorial waters or on the high sea, if the limit is defined as the “envelope of the arcs of circles of three-mile radius.” It is evident that the limit of the territorial sea need not be indicated on the chart.’ 16 Source: Boggs (note 1), 546 (Fig. 2). Reproduced with permission from � The American Society of International Law. Art. 4 is a strict geometric rule that derives the outer limit of the territorial sea from certain 9 given baselines. The outer limit of the territorial sea is thus determined solely by the land (in fact by certain salient points of the land). This is a clear indication that the State has no original claim on the territorial sea, but that its claim is derived from the possession of the coastline, that the territorial sea is thus derivative in nature. 17 In situations of adjacent or opposite coastlines, Art. 15 applies. 18 States may, for example, 10 agree to not extend their territorial seas to the maximum extent possible, so as to leave an important shipping lane part of the high seas (or EEZ).19

Article 5 Normal baseline 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 largescale charts officially recognized by the coastal State. 15

Shalowitz/Reed (note 2), 171 (Fig. 27). Boggs (note 1), 541, 546 (Fig. 2). 17 Art. 4 can thus be seen as a continuation of the cannon-shot rule. The range of cannons placed on the outermost promontories of the coast could be described by circles drawn from these promontories, resulting in an arcs-of-circles line. 18 See generally Symmons on Art. 15. 19 See also Tru ¨ mpler on Art. 5 MN 31 for the possibility to fix the outer limit of the territorial sea by straight lines. 16

Tru¨mpler

45

Art. 5

Part II. Territorial sea and contiguous zone

Bibliography: Nuno Se´rgio Marques Antunes, The German-Danish Border, Boundary and Territory Briefing 2 (2000), 1–4; Nuno Se´rgio Marques Antunes, The Importance of the Tidal Datum in the Definition of Maritime Limits and Boundaries, Maritime Briefing (2000); Peter B. Beazley, Maritime Limits and Baselines, A Guide to their Delineation (3rd edn. 1987); Peter Beazley, Technical Considerations in Maritime Boundary Delimitations, in: Jonathan I. Charney/Lewis M. Alexander (eds.) International Maritime Boundaries (1993), 243–262; Chris Carleton, Problems Relating to Non-Natural and Man-Made Basepoints under UNCLOS, in: Clive R. Symmons (ed.), Selected Contemporary Issues in the Law of the Sea (2011), 31–68; Chris Carleton/Clive Schofield, Developments in the Technical Determination of Maritime Space: Charts, Datums, Baselines, Maritime Zones and Limits, IBRU Maritime Briefing 3(3) (2001); Georg Dahm/Jost Delbru¨ck/Ru¨diger Wolfrum, Vo¨lkerrecht, vol. I (2nd edn. 1989); Leendert Dorst/Alex Oude Elferink/Thijs Ligteringen, Recent Changes In the Dutch Baseline: The Inseparable Connection Of Human Activities And Natural Processes, ABLOS 7 Conference Papers, Session 8 (2012), available at: http://www.iho.int/mtg_docs/com_wg/ABLOS/ABLOS_Conf7/ABLOS_Conf7.htm; Robert D. Hodgson/E. John Cooper, The Technical Delimitation of a Modern Equidistant Boundary, ODIL 3 (1976), 361–388; S. P. Jagota, Maritime Boundary (1985); Christoph C. Joyner, Ice Covered Regions in International Law, Natural Resources Journal 31 (1991), 213–242; Jørgen Molde, The Status of Ice in International Law, Nordic Journal of International Law 51 (1982), 164–178; Fritz Mu¨nch, Die technischen Fragen des Ku¨stenmeers (1934); Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Daniel P. O’Connell, The International Law of the Sea, vol. I (1982); Daniel P. O’Connell, The International Law of the Sea, vol. II (1982); G. Etzel Pearcy, Geographical Aspects of the Law of the Sea, Annals of the Association of American Geographers 49 (1959); Rosemary Rayfuse, Sea Level Rise and Maritime Zones, in: Michael B. Gerrard/ Gregory E. Wannier (eds.) Threatened Island Nations, Legal Implications of Rising Seas and a Changing Climate (2013), 167–191; Shabtai Rosenne (ed.), Conference for the Codification of International Law, vol. IV (1975); Aaron L. Shalowitz/Michael W. Reed, Shore and Sea Boundaries, vol. I (1962); Aaron L. Shalowitz/Michael W. Reed, Shore and Sea Boundaries, vol. II (1964); Aaron L. Shalowitz/Michael W. Reed, Shore and Sea Boundaries, vol. III (2000); Clive Schofield/David Freestone, Options to Protect Coastlines and Secure Maritime Jurisdiction in the Face of Global Sea Level Rise, in: Michael B. Gerrard/Gregory E. Wannier (eds.) Threatened Island Nations, Legal Implications of Rising Seas and a Changing Climate (2013), 141–165; Robert W. Smith, A Geographical Primer to Maritime Boundary Making, ODIL 9 (1982), 1–22; George K. Walker (ed.), Definitions for the Law of the Sea: Terms not Defined by the 1982 Convention (2012) Documents: GA, Oceans and Law of the Sea: Report of the Secretary General, UN Doc. A/69/71/ADD.1 (2014); IHO, Hydrographic Dictionary, vol. I (5th edn. 1994); IHO, A Manual on the Technical Aspects of the United Nations Convention on the Law of the Sea – 1982, Special Publication No. 51 (4th edn. 2006); IHO, A Manual on the Technical Aspects of the United Nations Convention on the Law of the Sea – 1982, Special Publication No. 51 (Edition 5.0.0. 2014); IHO, A Manual on the Technical Aspects of the United Nations Convention on the Law of the Sea – 1982, Special Publication No. 51 (3rd edn. 1993); IHO, Regulations of the IHO for International (INT) Charts and Chart Specifications of the IHO (edn. 4.5.0, 2014); IHO Res. 3/1919 (Technical Resolution A 2.5) of 2008; ILC, Additif au deuxie`me rapport de M. J. P. A. François, rapporteur spe´cial, UN Doc. A/CN.4/61/ADD.1 (1953), ILC Yearbook (1953), vol. II, 75–78; ILC, Reference Guide to the Articles Concerning the Law of the Sea (Prepared by the Secretariat), UN Doc. A/C.6/L.378 (1956); ILC, Re´gime of the Territorial Sea: Rapport par J.P.A. François, rapporteur spe´cial, UN Doc. A/CN.4/53 (1952), ILC Yearbook (1952), vol. II, 25–43; ILC, Re´gime of the Territorial Sea: Troisie`me rapport de J.P.A Francois, rapporteur spe´cial, UN Doc. A/CN.4/77 (1954), ILC Yearbook (1954), vol. II, 1–6; ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4–12; ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45; ILC, Report of the International Law Commission, UN Doc. A/2934 (1955), GAOR 7th Sess. Suppl. 10; IMO Res. MSC.112(73) of 1 December 2000; League of Nations, Committee of Experts for the Progressive Codification of International Law: Questionnaire No. 2: Territorial Waters, LN Doc. C.44.M.21.1926.V (1926); League of Nations, Acts of the Conference for the Codification of International Law: Meetings of the Committees, vol. III: Minutes of the Second Committee, LN Doc. C.351(b).M.145(b).1930.V (1930); UN DOALOS, Baselines: An Examination of the Relevant Provisions of the United Nations Convention on the Law of the Seas (1989); UN DOALOS, Baselines: National Legislation with Illustrative Maps (1989) Cases: ICJ, Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment of 16 March 2001, ICJ Reports (2001), 40; PCA, Arbitration between Guyana and Suriname (Guyana v. Suriname), Award of 17 September, 2007, ILM 47 (2008), 166; PCA, The South China Sea Arbitration (Philippines v. People’s Republic of China), Award of 12 July 2016, http://www.pcacases.com/ pcadocs/PH-CN%20-%2020160712%20-%20Award.pdf Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. The Normal Baseline, its Exceptions and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. The Low-Water Line. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

46

Tru¨mpler

1 4 5 5 6

Normal baseline

1–4

a) ‘Line’ in UNCLOS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aa) Low-water datum. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bb) Intersection with the shore – ‘actual’ vs. charted line. . . . . . . . . . . . . . . . . . . . cc) Error in the chart or no chart . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Large-Scale Charts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Electronic Nautical Charts (ENC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Officially Recognized Charts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Coastal Defense and Land Reclamation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Sea-level Rise . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Art. 5

7 8 15 23 30 34 35 36 38

I. Purpose and Function The baseline defined by Art 5. determines where the land ends and the sea begins under 1 international law. Art. 5 thus establishes the fundamental datum for the measurement of maritime zones. The low-water line under Art. 5 is not only important for the direct measurement of the outer limit of the territorial sea, it also provides the relevant land/sea boundary line on which the further application of Arts. 6, 7, 9, 10, 13 and 47 is based. Part II Section 2 UNCLOS as a whole is based on the idea of the two-dimensional representation of land and sea on a chart. The extent of the land’s dominance of the sea is subject to the rules of Section 2. The line of interest for this purpose is the low-water line. This two-dimensional view is the basis for the allocation of space throughout UNCLOS, with the notable exception of Part VI. While Art. 5 defines the norm, other articles provide additions for specific geographical 2 situations. Arts. 6, 9 and 13 directly reference the low-water line. Arts. 7 and 10 do so indirectly: The shape of the coastline (Art. 7) or the coast (Art. 10) is determined by the lowwater line, as is the shape of a bay and the indentations of the coast. Importantly, under Arts. 7 and 10 the basepoints of straight baselines need to be situated on the normal baseline. Arts. 5–7 and 9–14 provide rules for establishing baselines for the measurement of the 3 territorial sea (� Art. 3), and by reference for the contiguous zone (� Art. 33 (2)), the exclusive economic zone (EEZ) (� Art. 57), the default continental shelf (� Art. 76 (1), and for one of the outer limits of the extended continental shelf (� Art. 76 (6)). The outer limit of the territorial sea (� Art. 4) is the derivative of the baseline established by Arts. 5–7, 9–11, and 13. But it is Art. 5 that is at the beginning of the delineation process.

II. Historical Background The first international convention to make reference to the low-water line dates from 1839. 1 4 Previously, several other possible data had been used: the high-water mark, the point at which the sea first becomes navigable, and points where it is possible to erect coastal artillery, among others.2 The North Sea Fisheries Convention of 18823 marked the acceptance in Europe of the low-water line as the normal baseline.4 At the Hague Codification Conference, the Second SubCommittee, which dealt with technical issues of the territorial sea, settled on the ‘line of lowwater mark’.5 It did so following the proposals by the rapporteur, the expert committee6 and 1 Convention for Defining and Regulating the Limits of the Exclusive Right of the Oyster and Other Fishery on the Coast of Great Britain and of France, 2 August 1839, BFSP 27, 983; see also Daniel P. O’Connell, The International Law of the Sea, vol. I (1982), 172. 2 O’Connell (note 1), 172. 3 International Convention for Regulating the Police of North Sea Fisheries Outside Territorial Waters, 6 May 1882, CTS 160, 219. 4 Georg Dahm/Jost Delbru ¨ ck/Ru¨diger Wolfrum, Vo¨lkerrecht, vol. I/1 (2nd edn. 1989), 422; O’Connell (note 1), 172. 5 Conference for the Codification of International Law, Final Act, AJIL 24, No. 3 Suppl. (1930), 169, 247 (Annex II). 6 League of Nations, Committee of Experts for the Progressive Codification of International Law: Questionnaire No. 2: Territorial Waters, LN Doc. C.44.M.21.1926.V (1926), Annex IV: Draft Convention Amended By M. Schu¨cking in Consequence of the Discussion in the Committee of Experts, reproduced in: Shabtai Rosenne (ed.),

Tru¨mpler

47

Art. 5

5–6

Part II. Territorial sea and contiguous zone

the recommendation of the preparatory committee.7 In 1953, the expert commission invited by the special rapporteur FRANÇOIS of the International Law Commission (ILC) in preparation for UNCLOS I also recommended using the low-water line if detailed, recognized charts were available, and the high-water line if such charts had not been drawn. 8 The ILC initially adopted draft Art. 4 along the lines of the expert commission’s proposal but later removed the reference to the high-water mark9, stating: ‘it might lead to confusion since it could be interpreted as meaning that not only a ship on the high seas but also the coastal State must take the high-water line as baseline in the absence of detailed charts, which was not the Commission’s intention.’10

III. Elements 1. The Normal Baseline, its Exceptions and Function 5

The low-water line is the default option for determining the normal baseline for the territorial sea. The other options provided by the Convention (namely Arts. 7 and 9–12) are rather exceptions to the normal baseline, as they may only be applied in certain circumstances (whereas the normal baseline is applicable in all circumstances). For example, while the State may choose to apply Art. 5 in all circumstances described in Art. 7, conversely Art. 7 cannot be applied everywhere where Art. 5 is applied. While the coastal State is free to use the other regulations (� Art. 14), it must choose them actively and ensure that the requirements of the provisions concerned are met. It must then show them specifically for the purpose of delineation on suitable charts (Art. 16). In the absence of choice, Art. 5 will provide the baseline for the measurement of the territorial sea. Most of Part II, including Art. 5, is very close to the wording of the corresponding articles in the Convention on the Territorial Sea and the Contiguous Zone (CTSCZ). The normal baseline is a framework not only for the measurement of the territorial sea, but for all other measurements that reference a distance to the coast (notably the contiguous zone, the EEZ, certain aspects of the continental shelf, but also by implication delimitation when it involves the distance, e. g. when drawing an equidistance line).

2. The Low-Water Line 6

The low-water line is the intersection of the plane of low-water with the shore. 11 The lowwater line thus depends on the plane of low-water and the form of the shore (see Fig. 1). League of Nations Committee of Experts for the Progressive Codification of International Law, vol. II: Documents (1972), 98 (Art. 2). The rapporteur (Schu¨cking) found that State practice on this point was consistent and that all codification projects agreed on that point: Ibid., Annex I Memorandum by M. Schu¨cking, reproduced in: Shabtai Rosenne (ed.), League of Nations Committee of Experts for the Progressive Codification of International Law, vol. II: Documents (1972), 55, 63. 7 League of Nations, Acts of the Conference for the Codification of International Law: Meetings of the Committees, vol. III: Minutes of the Second Committee, LN Doc. C.351(b).M.145(b).1930.V (1930), Annex I: Bases of Discussion Drawn up by the Preparatory Committee (Basis of Discussion No. 6), reproduced in: Shabtai Rosenne (ed.), League of Nations Conference for the Codification of International Law (1930), vol. IV (1975), 1381. 8 ILC, Additif au deuxie `me rapport de M. J. P. A. François, rapporteur spe´cial, UN Doc. A/CN.4/61/ADD.1 (1953), ILC Yearbook (1953), vol. II, 75, 77 (Annex ‘Rapport du Comite´ d’experts sur certaines questions d’ordre technique concernant la mer terre´toriale’, I): English translation in: Myron H. Nordquist/Satya N. Nandan/ Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 59); Aaron L. Shalowitz/Michael W. Reed, Shore and Sea Boundaries, vol. I (1962), 213, citing G. Etzel Pearcy, Geographical Aspects of the Law of the Sea, Annals of the Association of American Geographers 49 (1959), 6, who mentions the group of experts recommended the low-water line ‘as giving the state the right to measure the breadth of its territorial sea from the outermost land which is above water at low tide.’ 9 See infra, MN 6–12. 10 ILC, Report of the International Law Commission, UN Doc. A/2934 (1955), GAOR 7th Sess. Suppl. 10, 35. 11 IHO, Hydrographic Dictionary, vol. I (5th edn. 1994), No. 2951.

48

Tru¨mpler

Normal baseline

7–8

Art. 5

Fig. 5.1 Vertical Datums12 While the plane of low-water, or the reference plane, is derived from tidal observations and can usually be considered static,13 the coast may change by natural processes. a) ‘Line’ in UNCLOS. The UNCLOS uses ‘line’ without any further definition. In its 7 Manual on Technical Aspects, the IHO gives a succinct definition of the possible meanings of ‘straight lines’.14 Generally, when coordinates for the end or turning points of lines are specified, the type of line connecting them should be made clear as should the reference ellipsoid for the coordinates themselves (Art. 16). If the type of the line is not specified, it may be reasonable to assume that the line follows the curve giving the shortest distance between two points on a given surface (probably the reference ellipsoid), a geodesic. 15 This would seem to require the fewest additional assumptions, for example on projections used. If the line is drawn for a specific purpose, the use of other lines may be more plausible: The lines connecting the turning points of traffic separation schemes, for example, may be seen as a ‘true straight line on a Mercator chart’ (or a loxodrome)16, as their purpose is for the navigation of ships and this type of line would allow for navigation on a constant bearing. While in practice this makes little difference for the ship, the distinction may matter when permanent structures are constructed in the vicinity and safety distances have to be observed. aa) Low-water datum. At many coasts, the gravitational pull of the moon and the sun lets 8 the sea level rise and fall periodically, usually twice in a lunar day (tide). The level of the rise is dependent on the exact astronomical conditions, e. g. if sun and moon are aligned, the rise and fall will be more pronounced (springtide) than average. The tide is also influenced by 12 Source: IHO, A Manual on the Technical Aspects of the United Nations Convention on the Law of the Sea – 1982, Special Publication No. 51 (4th edn. 2006), Chapter 2–19 (Fig. 2.9); note that the 2014 edition has replaced this figure with a more comprehensive one (IHO, A Manual on the Technical Aspects of the United Nations Convention on the Law of the Sea – 1982, Special Publication No. 51 (5th edn. 2014), Ch. 2-17, Fig 210), however, the figure from the previous version is reproduced here for its relative simplicity. Material from relevant IHO publications and standards is reproduced with the permission of the Secretariat of the International Hydrographic Organization (IHO), acting for the International Hydrographic Organization (IHO), which does not accept responsibility for the correctness of the material as reproduced: in case of doubt, the IHO’s authentic text shall prevail. 13 See Shalowitz/Reed (note 8), 89 and IHO, A Manual on the Technical Aspects of the United Nations Convention on the Law of the Sea – 1982, Special Publication No. 51 (3rd edn. 1993), Ch. 2.5 for a more detailed explanation. See also infra MN 36–40 for sea-level rise. 14 IHO, A Manual on the Technical Aspects of the United Nations Convention on the Law of the Sea – 1982, Special Publication No. 51 (5th edn. 2014), Ch. 3-12. 15 For definition see IHO, A Manual on the Technical Aspects of the United Nations Convention on the Law of the Sea – 1982, Special Publication No. 51 (5th edn. 2014), Ch. 3-12. 16 Definition according to IHO, A Manual on the Technical Aspects of the United Nations Convention on the Law of the Sea – 1982, Special Publication No. 51 (5th edn. 2014), Ch. 3-12.

Tru¨mpler

49

Art. 5

9–12

Part II. Territorial sea and contiguous zone

local geography (sometimes resulting in a diurnal tide, i. e. a tide in which one of the two daily tides is stronger than the other), oscillations of the body of water at the coast, and centrifugal forces of the earth.17 9 The Convention does not specify the low-water datum.18 The second sub-committee of the Hague Conference was more specific in its draft and included ‘[f]or the purposes of this Convention, the line of low-water mark is that indicated on the charts officially used by the Coastal State, provided the latter line does not appreciably depart from the line of mean low-water spring tides.’19

10

The ILC in 1954, following the advice of the committee of experts convened in 1953 in the Hague, did not make reference to a particular datum. The question to the committee was: ‘Assuming the territorial sea to be measured from the low-water line what line might then preferably be taken as such?’ The committee answered: ‘Except as otherwise provided for, the base-line for measuring the territorial sea should be the lowwater line along the coast as marked on the largest-scale chart available, officially recognized by the coastal State. If no detailed charts of the area have been drawn, which show the low-water line, the shore line (high-water line) should be used.’20

The committee of experts further stated that it did not consider ‘that there was any danger that omission of the provisions made by the 1930 Conference as regards special indications in this matter, might tempt governments unreasonably to extend their low-water lines in their charts.’21

11

On the basis of the suggestions of the committee of experts, the special rapporteur proposed the following revised article in his third report: ‘As a general rule and subject to the provisions regarding bays and islands, the breadth of the territorial sea is measured from the low-water line along the coast, as marked on the largest-scale chart available, officially recognized by the coastal state. If no detailed charts of the area have been drawn which show the low-water line, the shore line (high-water line) shall be used.’22

12

A draft article (Art. 4) was adopted in 1954 along these lines.23 In 1955 the last sentence referencing the high-water line was removed. It was pointed out by the Commission that the sentence ‘might lead to confusion since it could be interpreted as meaning that not only a ship on the high seas but also the coastal State must take the high-water line as base line in the absence of detailed charts, which was not the Commission’s intention.’ With minor alterations the 1956 draft Art. 4 was prepared for the conference.24 This was then adopted as Art. 3 of the CTSCZ: ‘Except where otherwise provided in these articles, the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State.’ 17 For detailed information on tides see Nuno Se ´rgio Marques Antunes, The Importance of the Tidal Datum in the Definition of Maritime Limits and Boundaries, Maritime Briefing (2000), 2 (No. 7); Nuno Se´rgio Marques Antunes, The German-Danish Border, Boundary and Territory Briefing 2 (2000), 1–4; Shalowitz/Reed (note 8), 84–85. 18 The IHO Hydrographic Dictionary (note 11) lists definitions for at least 11 low-water data: higher low water, Indian spring low water, lower low water, lowest low water, low water, mean lower low-water, mean lower low water springs, mean low water, mean low-water neaps, mean low-water springs, and lowest astronomical tide. 19 League of Nations, Acts of the Conference for the Codification of International Law: Meetings of the Committees, vol. III: Minutes of the Second Committee, LN Doc. C.351(b).M.145(b).1930.V (1930), Report adopted by the Committee, reproduced in: AJIL 24, No. 3 Suppl. (1930), 234, 247. 20 ILC, Reference Guide to the Articles Concerning the Law of the Sea (Prepared by the Secretariat), UN Doc. A/C.6/L.378 (1956), 25. 21 ILC Addition to the Second Report on the Territorial Sea (note 8), 77: English translation as given in Nordquist/Nandan/Rosenne (note 8), 59. 22 ILC, Re ´gime of the Territorial Sea: Troisie`me rapport de J.P.A Francois, rapporteur spe´cial, UN Doc. A/CN.4/77 (1954), ILC Yearbook (1954), vol. II, 1, 2–3 (draft Art. 5); English translation in ILC Reference Guide (note 20), 26. 23 ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12, 13 (Commentary on Art. 4). 24 Ibid.; see also ILC Reference Guide (note 16), 24 et seq.

50

Tru¨mpler

Normal baseline

13–15

Art. 5

In 1919 the International Hydrographic Organisation (IHO) adopted Technical Resolution 13 A2.525, which recommended that the chart datum should be on a plane that the tide does not frequently fall below it.26 In 1998 the resolution was amended to explicitly recommend the lowest astronomical tide (LAT).27 As a result, a number of States have moved to set their chart datum to the LAT, in some cases trying to harmonize within their region. 28 As LAT is defined as the ‘lowest tide level which can be predicted to occur under average 14 meteorological conditions and under any combination of astronomical conditions’29, any reference plane lower than LAT would rely on special meteorological conditions, e. g. a storm blowing the water off the land. A lower reference plane would therefore not be a result of coastal geography and the tidal forces, but of coincidental additional factors such as the wind. While there would still be an observed low-water line, such a reference plane is unlikely to be acceptable under Art. 5. Part II as a whole seems to regard the low-water line as the fairly stable (with the notable exception of Art. 7 (2)), defining element of the coast. It is relied upon to determine the status of indentations as bays (Art. 10 (3)) and – perhaps even more importantly – of low-tide elevations (LTE) (Art. 13 (1)): The question as to whether an elevation on the sea-bed is merely shallow water or constitutes a LTE depends on the reference plane alone. It would be inconsistent with the Convention’s aim to provide a dependable legal framework if such crucial determinations would depend on one-time, nonrepeatable observations. The low-water line should be determined by a reference plane depending on regular occurrences. This seems to indicate that the LAT is the lowest acceptable reference plane for the low-water line. bb) Intersection with the shore – ‘actual’ vs. charted line. Two main interpretations of 15 the phrase ‘as marked on large-scale charts’ have been put forward: (1) the normal baseline is the low-water line depicted on the charts officially recognized by the coastal State (in the following referred to as charted line); or (2) the normal baseline is the low-water line along the coast at the vertical or tidal datum indicated on the charts officially recognized by the coastal State (in the following referred to as ‘actual line’).30 Scholarly opinion on the issue seems divided.31 25 O’Connell (note 1), 178; IHO Res. 3/1919 (Technical Resolution A 2.5) of 2008 References Datum and Benchmarks. 26 Nordquist/Nandan/Rosenne (note 8), 89; UNCLOS III, Study on the Future Functions of the Secretary-General Under the Draft Convention and on the Needs of Countries, Especially Developing Countries, for Information, Advice and Assistance under the New Legal Regime, UN Doc. A/CONF.62/L.76 (1981), OR XV, 153, 169. 27 IHO Res. 3/1919 (Technical Resolution A 2.5) of 2008; ‘It is further resolved that the Lowest Astronomical Tide (LAT), or as closely equivalent to this level as is practically acceptable to Hydrographic Offices, be adopted as chart datum where tides have an appreciable effect on the water level. Alternatively the differences between LAT and national chart datums may be specified on nautical documents. If low water levels in a specific area frequently deviate from LAT, chart datum may be adapted accordingly.’ 28 This takes considerable technical knowledge and cooperation. Even in the generally well surveyed and charted North Sea, neighbouring States encounter difficulties in harmonising their reference planes, see: Report of the 17th meeting of the NSHC-TWG to the 29th NSHC Conference, Merging and Comparison of Reference Surfaces for the North Sea Area, Annex D, available at: http://www.iho.int/mtg_docs/rhc/NSHC/NSHC29/ NSHC29-E1.1-Denmark.pdf. For a summary of State practice current as of 2000, see Antunes, The Importance of the Tidal Datum (note 12), 6–7. However, more States seem to shift to LAT or datums that are very close to LAT, including the Australian Hydrographic Office (Tidal Glossary, http://www.hydro.gov.au/prodserv/data/ tides/tidal-glossary.htm#l Lowest Astronomical Tide, visited 07.04.09), and North Sea Hydrographic Services, including Belgium, Germany, France, Netherlands, Norway and the UK, with the exception of Denmark. 29 IHO Hydrographic Dictionary (note 11), 135 (No. 2936). 30 ILA Baseline Committee, Baselines under the International Law of the Sea, Sofia Conference (2012), 3. 31 Daniel P. O’Connell, The International Law of the Sea, vol. II (1982), 682, states in the context of lateral delimitation ‘However, a practical problem arises when the frontier lines have been officially described on charts, since there would be discordance between official documents and geographical reality, resulting in difficulties in applying and enforcing the law. Gidel proposes that the simple solution is to follow the line of the chart, because this is intended to eliminate uncertainty. However, it may be that this would involve an exercise of sovereignty in neighbouring territory, so that rectification of the charts would seem to be incumbent upon the Stare whose shoreline has altered’; Chris Carleton/Clive Schofield, Developments in the Technical Determination of Maritime Space: Charts, Datums, Baselines, Maritime Zones and Limits, IBRU Maritime Briefing 3(3) (2001), 24, state ‘if

Tru¨mpler

51

Art. 5

16–19

Part II. Territorial sea and contiguous zone

It is important to note that the low-water line is a constructed line. In particular along coasts with tidal influence it is a constructed line defined as the intersection of a certain defined reference plane (usually LAT) and the coast (see paragraph 2 above). The low-water line can rarely be observed; it is not a fixture on the ground that can easily be ascertained. 32 Finding the low-water line requires tidal observations that are time consuming and costly and a survey of the land (using different survey methods, e. g. traditional terrestrial geodetic measurements or satellite positioning).33 The best representation of an actual low-water line is therefore a nautical chart based on up-to-date survey data. 17 The question of interpretation would be purely academic if such up-to-date charts existed in all cases. That is not the case, as the IHO points out in its Manual on Technical Aspects: 16

‘Most charts are compiled from the results of hydrographic surveys that are very time consuming operations, even with modern equipment. Ocean surveys have only been undertaken by a limited number of maritime States. Consequently, large areas of the world’s continental shelves have never been properly surveyed, and perhaps surprisingly significant areas of coastal waters have not been surveyed in the detail required for today’s shipping or for LOS boundary delimitation. The significance of this variable quality of charts in maritime boundary delimitation is that: a. Geographical positions may be based upon inaccurate, imperfect or inadequate observations. b. In areas where the low-water line is composed of soft materials like mud or sand, the details are likely to have changed since the surveys were undertaken, particularly in areas of strong currents or tidal streams, or along coasts that are subject to major storms. c. If the chart has been based on the original printing plates it may not be clear from the symbols used at that time which contour line or lines represent the low-water line.’

The interpretation of Art. 5 must therefore answer two questions. Does Art. 5 refer to the charted or the ‘actual’ line (accepting that this line may not be observable)? And what are the consequences, if no chart exists or the chart is erroneous? 18 The ordinary meaning of the English words ‘as marked on’ seems to emphasize the charted line.34 However, taking into account the other authoritative versions of the text of the Convention, no preferable interpretation emerges.35 19 The historical analysies of the text is inconclusive. Art. 5 has its root in the 1930 codification effort.36 The International Law Association’s (ILA) report – pointing out the multiple low-water data used by states prior to the 1930 conference – came to the conclusion that the phrase ‘line of low-water mark […] indicated on charts’ ‘did not refer to the line, per se, but to the chart datum that, when applied to that coast during the chart-making process, would result in that particular charted line.’37 As the understanding of the 1930 discussion and text is important for the question at hand, it may be helpful to reproduce the 1930 second sub-committee’s observations on its own text in some detail: ‘[…]For purposes of this Convention, the line of low-water mark is that indicated on the charts officially used by the Coastal State, provided the latter line does not appreciably depart from the line of mean low-water spring tides. […]’ the coastline has altered, but it has not been published, the legal baseline is that on the published chart’. Aaron L. Shalowitz/Michael W. Reed, Shore and Sea Boundaries, vol. III (2000), 182, argue ‘It is the actual low-water line and not the charted line that is to be used as the baseline under the Convention.’ See also ILA Baseline Report (note 30), 23–24 for a detailed analysis of the literature. 32 Aaron L. Shalowitz/Michael W. Reed, Shore and Sea Boundaries, vol. I (1962), 89–90: ‘A water Boundary determined by tidal definition is thus not a fixed, visible mark on the ground, such as a roadway or fence, but represents a condition at the water’s edge during a particular instant of the tidal cycle.’ 33 See IHO Manual on Technical Aspects 2014 (note 13), Ch. 3-7-3-8.; Carleton/Schofield (note 31), point out: ‘Where chart coverage and land-mapping is insufficient […] processed satellite imagery can be used to determine a digital model of the territorial sea basepoints.’ They further state that accurate imagery (+/- 30 m) may be available that is ‘not expensive’. 34 ILA Baseline Report (note 30), 8. 35 See ibid., 8 for a detailed analysis. 36 See supra, MN 6 and 7; ILA Baseline Report (note 30), 11, ‘Understanding the discussions in 1929 and 1930 and the proposed language that resulted is crucial to the interpretation of 1958 Article 3 and 1982 Article 5 […].’ 37 ILA Baseline Report (note 30), 11.

52

Tru¨mpler

Normal baseline

20–21

Art. 5

‘[…] The traditional expression “low-water mark” may be interpreted in different ways and requires definition. In practice, different States employ different criteria to determine this line. The two following criteria have been taken more particularly into consideration: first the low-water mark indicated by the charts officially used by the coastal state, and, secondly, the line of mean low-water spring tides. Preference was given to the first, as it appeared more practical. Not every State, it is true, possesses official charts published by its own hydrographic services, but every coastal State has some chart adopted as official by the State authorities, and a phrase has therefore been used which also includes these charts. The divergencies due to the adoption of different criteria on the different charts are very slight and can be disregarded. In order to guard against abuse, however, the proviso has been added that the line indicated on the chart must not depart appreciably from the more scientific criterion: the line of mean low-water spring tides. The term “appreciably” is admittedly vague. Inasmuch, however, as this proviso would only be of importance in a case which was clearly fraudulent, and as, moreover, absolute precision was extremely difficult to attain, it is thought, that it might be accepted. […]’ 38

The sub-committee apparently considered an objective ‘scientific’ criterion for the definition but settled on the low-water mark indicated on charts as the more practical criterion. It is to be noted that the sub-committee did not enumerate the different vertical data used at the time. It considered as defining criteria, on the one hand, a line resulting from an objective vertical datum, and, on the other, a charted line. In particular, the second paragraph does not necessarily support the conclusion that the sub-committee’s intention was not to refer to the line, per se. On the contrary, it seems to suggest that the charted line is the defining criterion for the low-water line, unless the charted line was drawn in a ‘clearly fraudulent’ way. However, the committee does not seem to have considered the case that a nautical chart may be outdated so that natural processes and not fraud are the reason for the line to depart ‘appreciably’ from the scientific line.39 The ILC was heavily influenced by the results of the 1930 conference. The first proposal 20 for a draft regulation by Special Rapporteur FRANÇOIS was similar to the 1930 proposal in the sub-committee report40: ‘3. The line of low-water mark is that indicated on the charts officially used by the coastal State, provided the latter line does not appreciably depart from the line of mean low-water spring tides.’ The rather strong phrase ‘is that’ also indicates, that indeed the low-water line was to be defined as the charted line. The text was revised following the advice of the ILC Committee of Experts and thus 21 appeared as Art. 4 of the 1956 draft articles: ‘Subject to the provisions of article 5 and to the provisions regarding bays and islands, the breadth of the territorial sea is measured from the low-water line along the coast, as marked on large-scale charts officially recognized by the coastal State.’41

In its commentary the ILC states: ‘The traditional expression “low-water mark” may have different meanings; there is no uniform standard by which States in practice determine this line. The Commission considers that it is permissible to adopt as the base line the low-water mark as indicated on large scale charts officially recognized by the coastal state.’42 38 League of Nations, Acts of the Conference for the Codification of International Law: Meetings of the Committees, vol. III: Minutes of the Second Committee, LN Doc. No. C.351(b).M145(b).1930.V (1930), Annex V (Appendix 2: Report of the Second Sub-Committee), reproduced in: Shabtai Rosenne (note 7), 1419. 39 This was criticized early on, Fritz Mu ¨ nch, Die technischen Fragen des Ku¨stenmeers (1934), 78, explicitly stated that the reference to the line mean low-water spring tides should not only be ‘a clause de bonne foi’ as stated in the sub-committee report, but was also necessary with regard to changes in nature. 40 ILC, Re ´gime of the Territorial Sea: Rapport par J.P.A. François, rapporteur spe´cial, UN Doc. A/CN.4/53 (1952), ILC Yearbook (1952), vol. II, 25, 32: English translation in ILC, Summary Records of the 4th Session, ILC Yearbook (1952), vol. 1, 169, 171 (169th Meeting, footnote 6). 41 Changes made in the Third report of the Special Rapporteur: ILC, Regime of the Territorial Sea: Troisie`me rapport de J.P.A Francois, rapporteur spe´cial, UN Doc. A/CN.4/77 (1954), ILC Yearbook (1954), vol. II, 1, 2–3 (see draft Art. 5); ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4–12, 4. 42 ILC Law of the Sea Articles with Commentaries (note 23), 13 (Art. 4).

Tru¨mpler

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Art. 5

22–27

Part II. Territorial sea and contiguous zone

22

In the light of this history, the interpretation that ‘as marked on large-scale charts’ refers not to ‘the line, per se, but to the chart datum […]’ does not fully explain the prominent role of the charted line and, in particular, why the reference to ‘large-scale charts’ was added by the Committee of Experts. A ‘large-scale chart’ would not be necessary to fix the chart datum: it is however necessary to ascertain the exact position of the line. It seems at least possible to interpret the history as also indicating that the charted low-water line is to be considered as the baseline.

23

cc) Error in the chart or no chart. A separate question is whether the officially recognized charts remain open to challenge in a court or tribunal. Here, historical analysis suggests strongly that this option was always assumed by the drafting bodies. The 1930 conference contained an explicit reference to a standard line, but only envisioned that to be necessary in fraudulent circumstances. Several ILC members raised the point of adjudication, also concerning outdated or otherwise unacceptable charts.43 This analysis would indicate that at the heart of the matter is not the interpretation of ‘low-water line’, but of ‘chart’. The 1930 conference assumed that the ‘divergencies’ between charted line and objective line would be appreciable only in the context of fraud. Accordingly, an up-to-date chart was presupposed. However, the basis to accept the primacy of the chart is an existent chart, i. e. nautical chart, produced and adhering to certain standards, suitable for navigation. If evidence, e. g. observable facts, indicate that the chart does not meet this level of quality, the basis for the acceptance of the charted line no longer exists. In the Arbitration between Guyana and Suriname44, the tribunal heard evidence on the accurate depiction of a basepoint located on a shoal. The chart depicting the low-water line along the shoal was produced after the beginning of the arbitration and showed the lowwater line several kilometres seaward of the previous line.45 After hearing the evidence the tribunal declared itself ‘not convinced’ that the point in question was inaccurate. 46 In the Qatar/Bahrain Case, the International Court of Justice analyzed evidence pertaining to the question of whether a feature was an island or a low-tide elevation and concluded, contrary to submitted charts, that the feature was an island. 47 However, this is a question of the highwater mark, which determines the quality of terra firma and separates low-tide elevations from the islands. The low-water mark of the feature was not at issue. Considering the wording and the history of Art. 5, it would seem that the possibility of challenge if the charted line departs appreciably from a certain objective standard has been accepted throughout the drafting history. ‘Appreciably’ was understood at first to refer to fraudulent cases only. Drafting history and judicial practice indicates that this has been extended to factual errors. The drafting history suggests, and Arbitration between Guyana and Suriname supports, the view that these errors need to be clear and convincingly shown, and have considerable influence on the coastline; in other words they need to be significant. The following interpretation emerges from this: The low-water line is the line charted on large-scale charts officially recognized by the coastal State, unless there is evidence of significant errors in the chart. These may include errors that arise from the use of inappropriate procedures or other unintentional mistakes, but also errors that result from a shift in the coastline since the survey that the chart is based on. The view expressed here emphasizes the stability and relative certainty gained by using the charted line as the low-water line: the limit of the territorial sea would not fluctuate on

24

25

26

27

43 ILC, Summary Records of the Meetings of the 4th Session, ILC Yearbook (1952), vol. I, 172, 177–178 (170th Meeting – statements of members Amado, Yepes, and Scelle). 44 PCA, Arbitration between Guyana and Suriname (Guyana v. Suriname), Award of 17 September 2007, ILM 47 (2008), 166. 45 Ibid., para. 395; also ILA Baseline Report (note 30), 13, for a concise summary. 46 Arbitration between Guyana and Suriname (note 44), para. 395. 47 ICJ, Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment of 16 March 2001, ICJ Reports (2001), 40, 98–99.

54

Tru¨mpler

Normal baseline

28–29

Art. 5

perhaps even a daily basis with the morphological changes in the coastline, 48 but would remain tethered to the charted line until the error between the observations and charted line is significant.49 Whether such an error is significant or not should be determined by recourse to the purpose of the chart: if the error is such that by accepted hydrographic standards a correction of the chart is necessary, then the error is significant. The view expressed here and the view expressing that the low-water line is the ‘actual’ low- 28 water line, for example in the ILA report, have a considerable overlap in practice. In particular, while the ILA report does not accept the charted line as the normal baseline, but states that ‘[a]s a matter of evidence for proving the location of the normal baseline the charted line appears to enjoy a strong presumption of accuracy’50. However, there may be discrepancies in cases where evidence in the form of observations does not indicate a significant error in the charts, but a small error with significant consequences, for example in the question of whether a feature is a low-tide elevation or merely an elevation of the seafloor. If no charts or no adequate charts exist, the low-water line may be determined by recourse to other means.51 For example, in the South China Sea Arbitration, the Tribunal considered the respective merits of satellite imagery and nautical charts at length. 52 The Convention provides no guidance on the measurement of the low-water line along 29 coasts permanently covered in ice.53 In such areas, a low-water line is not readily observable. However, given the fact that in most areas the low-water line is now calculated electronically, it should be possible to calculate the low-water line as an intersection of the reference plane with the (ice-covered) shore relatively easily using geographical information systems. A lowwater line thus calculated would have the advantage of stability and be independent of 48 Though this seems to be the view expressed by Reed in: Aaron L. Shalowitz/Michael W. Reed, Shore and Sea Boundaries, vol. III (2000), 185. 49 Cf. Leendert Dorst/Alex Oude Elferink/Thijs Ligteringen, Recent Changes In the Dutch Baseline: The Inseparable Connection Of Human Activities And Natural Processes, ABLOS 7 Conference Papers, Session 8 (2012), available at: http://www.iho.int/mtg_docs/com_wg/ABLOS/ABLOS_Conf7/ABLOS_Conf7.htm, ‘by using nautical charts, the baseline is frozen until the next edition of the chart is published, usually after a few years. The intermediate stability of the baselines and outer limits has an advantage for mariners, like fishermen and their inspectors. They do not have to ascertain continuously whether the limits have changed, but have to handle changes in the extent of zones due to a specific coastal project only once every few years. A permanent, gradual change of the extent of zones would have been a lot harder to implement into procedures for up-to-date geographic information at sea.’ 50 ‘The Committee concludes that the legal normal baseline is the actual low-water line along the coast at the vertical datum, also known as the chart datum, indicated on charts officially recognized by the coastal State. The phrase “as marked on large-scale charts officially recognized by the coastal State” provides for coastal State discretion to choose the vertical datum at which that State measures and depicts its low-water line. The charted low-water line illustrates the legal normal baseline, and in most instances and for most purposes the charted lowwater line provides a sufficiently accurate representation of the normal baseline. As a matter of evidence for proving the location of the normal baseline the charted line appears to enjoy a strong presumption of accuracy. However, where significant physical changes have occurred so that the chart does not provide an accurate representation of the actual low-water line at the chosen vertical datum, extrinsic evidence has been considered by international courts and tribunals in order to determine the location of the legal normal baseline.’ ILA Baseline Report (note 30), 31. 51 E. g. Peter Beazley, Technical Considerations in Maritime Boundary Delimitations, in: Jonathan I. Charney/ Lewis M. Alexander (eds.) International Maritime Boundaries (1993), 243, 245, contends that in some situations existing charts have been thought inadequate. The examples that follow make clear, that they had been judged inadequate by the coastal state itself in its negotiations with other states. In this context official recognition may be lacking. See further: Carleton/Schofield (note 31), 18–19; UN DOALOS, Baselines: An Examination of the Relevant Provisions of the United Nations Convention on the Law of the Seas (1989), 2; Aaron L. Shalowitz/ Michael W. Reed, Shore and Sea Boundaries, vol. II (1964), 185. 52 PCA, The South China Sea Arbitration (Philippines v. People’s Republic of China), Award of 12 July 2016, paras. 322–326, available at: http://www.pcacases.com/pcadocs/PH-CN%20-%2020160712%20-%20Award.pdf, include technical details on satellite imagery and its limitations. Paras. 327–332 contrast this with the use of nautical charts based on surveys undertaken in parts in the 1930s and 1860s. 53 UN DOALOS, Baselines: National Legislation with Illustrative Maps (1989), 3, 5 para 13. For the use of the low-water line along ice-covered coasts, see Christoph C. Joyner, Ice Covered Regions in International Law, Natural Resources Journal 31 (1991), 224. For the edge of the ice as baseline at stable ice formations, see Jørgen Molde, The Status of Ice in International Law, Nordic Journal of International Law 51 (1982), 164, 165.

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30–32

Part II. Territorial sea and contiguous zone

seasonal variations in glacier extension and ice coverage. It would avoid any questions related to diminishing ice coverage due to global warming. The definition of the low-water line as the intersection of the reference plane with the actual land mass can thus provide a consistent definition of the low-water line even for ice-covered areas.

3. Large-Scale Charts The UNCLOS contains no definition of ‘chart’. Chart is however usually understood as a nautical chart,54 i. e. a map specifically designed to meet the needs of marine navigation. The history of the text55 supports this understanding. For commercial shipping, The International Convention for the Safety of Life at Sea (SOLAS 1974) requires the carriage of adequate and up-to-date charts;56 outdated charts clearly do not meet the needs of marine navigation. 31 On the other hand, charts submitted under Art. 16 (2) UNCLOS may be marked explicitly as not to be used for navigation, or are by their nature unsuitable for navigation. Moreover, charts are not always regularly resubmitted and at least some are bound to be outdated (see also sea-level rise below). While there is no requirement to submit charts depicting normal baselines under Art. 16, there is a significant link between the articles in the use of the word charts and in the fact that the base points of the baselines notified under Art. 16 usually lie on the low-water line. 32 The phrase ‘as marked on large-scale charts’ contains the key concept that the information on the low-water line must be publicly available with reasonable accuracy. It is unclear what scale a large-scale chart should have. Two situations need to be distinguished here: (a) the physical chart contains the defining information on the low-water line, and by implication on the limit of the territorial sea and (b) the defining information is contained elsewhere, e. g. the outer limit of the territorial sea or the low-water line is fixed by co-ordinates and the chart serves illustrative purposes. In situation (a), i. e. when the chart is the actual carrier of the information on which the definition of the territorial sea depends, the charts used should be of a scale that allows for a reasonably accurate determination of the outer limit. This would be consistent with Art. 16, which requires that baselines other than the normal baseline ‘be shown on charts of a scale or scales adequate for ascertaining their position.’ As the normal baseline and straight baseline both serve the same purpose in the delimitation of all maritime zones it seems that ‘large scale’ and ‘a scale or scales adequate for ascertaining their position’ may be used synonymously. The UN-Baseline Study proposes a scale of 1:50,000 to 1:200,000.57 The IHO Manual on Technical Aspects suggests a scale of 1:50,000 to 1:100,000 and points out that the plotting errors in the determination related to the various scales are approximately 10 m at a scale of 1:50,000 and 40 m at a scale of 1:200,000. 58 This seems reasonably precise if compared with the breadth of the territorial sea (40 m are less than 0.2% of twelve NM). However, in absolute terms, this level of accuracy may already be unacceptable, in particular when the determination not only of the outer limit, but of the boundary to opposite or adjacent states is at stake. Also, when taking into consideration that one of the purposes of charts in this context is to enable ships to determine if they are within the territorial sea of a State, the limiting factor in the determination should not be the 30

54 IHO Manual on Technical Aspects (note 13), defines chart as: ‘A NAUTICAL CHART specially designed to meet the needs of marine navigation. It depicts such information as depths of water, nature of the seabed, configuration and nature of the coast, dangers and aids to navigation, in a standardised format; also called simply, Chart. (Appendix 1–2). This is the same definition as given in the Glossary of Terms included in UN DOALOS Baselines (note 53), 47, 51; and 1 (para. 2); Nordquist/Nandan/Rosenne (note 8), 90 (MN 5.4(c)): ‘The term “chart” refers to nautical charts, which are especially designed to meet the needs of marine navigation [going on to quote the UN Baseline Study Glossary].’ 55 See also George K. Walker (ed.), Definitions for the Law of the Sea: Terms not Defined by the 1982 Convention (2012), Walker, 126 (para. 23 ‘Chart; nautical chart’ and in particular text to footnotes 365 and 366). 56 Reg. 27 Ch. V Annex International Convention for the Safety of Life at Sea 1974 (SOLAS 1974), as amended. 57 UN DOALOS Baselines (note 53), 2 (para. 8). 58 IHO Manual on Technical Aspects 2014 (note 13), Ch. 3-11.

56

Tru¨mpler

Normal baseline

33

Art. 5

accuracy of the charts provided by the State. Hence, the charts should allow for an accuracy that matches the navigational needs of the ship in determining its position. GPS navigation routinely allows for determinations of the position within tens of meters. 59 However, the IHO provides the following definitions for charts60: ‘In the case of paper charts, very generally, the terms ‘medium-scale’ and ‘large-scale’, as in the title of S-4 Part B, cover the following types of chart:

Medium-scale:

Large-scale:

General: passage/landfall

1:2 000 000–1:350 000

Coastal: coastal navigation

1:350 000–1:75 000

Approach: port approach/intricate or congested coastal waters

1:75 000–1:30 000

Harbour: harbour/anchorage/narrow straits

larger than 1:30 000

Berthing

very large scales’

While the primary focus of the IHO guidelines is safety of navigation, and not baselines, this can still be seen to indicate that charts in the range of 1:75,000 and larger would be deemed sufficient. However, in certain coastal areas only smaller scale charts used for coastal navigation may be available, while there is still a need to ascertain the extent of the territorial sea. In the South China Sea Arbitration award the Tribunal addresses the question of largescale charts and seems to indicate that it generally considers charts of a scale of 1:150,000 large scale, and points out that it ‘has identified some relevant evidence in nautical charts up to 1:250,000 scale’.61 In summary, 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. Certainly in situations where a boundary has to be delimited between adjacent or opposite States, a scale of 1:40,000 or so would seem desirable, as at smaller scales the breadth of the lines on the chart alone would introduce significant uncertainties. 62 In situation (b), charts serve only illustrative purposes; the information necessary for the determination of the outer limit of the territorial sea is given with the co-ordinates. It is neither practicable nor necessary to give an approximation of the entire low-water line in the form of co-ordinates, because as outlined above with a 12 NM territorial sea the outer limit is determined by relatively few points.63 It is also possible for a State to fix the outer limit of its territorial sea directly by straight 33 lines between fixed co-ordinates,64 as long as the entire boundary thus delimited is inside the envelope of arcs of circles that the State could draw using Part II of the Convention, including the provisions on straight baselines and bays. When using this method, the territorial sea has a variable breadth, as straight lines cannot have a constant distance to an 59 IMO Res. MSC.112(73) of 1 December 2000 requires an accuracy of at least 100 m for 95 % of operations (Annex 3.4 and 3.5), the US Department of Defense, Global Positioning System Standard Positioning Service Performance Standard (4th edn. 2008), 22, specifies an accuracy of 7.8 m for 95 % of operations (Table 3.4-1.), available at: http://www.gps.gov/technical/ps/2008-SPS-performance-standard.pdf. 60 IHO, Regulations of the IHO for International (INT) Charts and Chart Specifications of the IHO (edn. 4.5.0, 2014), S. B-126. 61 The South China Sea Arbitration (note 52), para. 330. 62 Robert D. Hodgson/E. John Cooper, The Technical Delimitation of a Modern Equidistant Boundary, ODIL 3 (1976), 377; O’Connell (note 1), 646 seems to argue for smaller scale charts; Robert W. Smith, A Geographical Primer to Maritime Boundary Making, ODIL 9 (1982), 16; cf. S. P. Jagota, Maritime Boundary (1985), 62. 63 Tru ¨ mpler on Art. 4 MN 7, see also infra, MN 38. 64 See for example: Proclamation of 11 November 1994 by the Government of the Federal Republic of Germany concerning the extension of the breadth of the German territorial sea for the Baltic Sea, available at: http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/deu_1994_territorial_proclamation.pdf; Denmark, Executive Order No 242 of 21 April 1999, available at: http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/DNK_1999_Order.pdf.

Tru¨mpler

57

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34–35

Part II. Territorial sea and contiguous zone

irregularly shaped coastline. That the State might use this method follows from Art. 3, which allows a breadth of up to 12 NM. Consequently, the State is free to give the territorial sea the shape it sees fit within this limit. 34

a) Electronic Navigational Charts (ENC). As the use of electronic charts for navigation and geographical information systems is spreading, 65 the question arises whether the State may refer to electronic charts for the determination of the low-water line. Electronic charts can be categorized in raster (a digital facsimile of a paper chart that is referenced to known locations) and vector (object-based) charts.66 Electronic navigational charts (ENCs) are official charts issued by or on the authority of government authorized hydrographic offices. 67 ENCs are vector charts and may contain more accurate information in some respects, in particular as they allow for a variable scale.68 The wording of Art. 5 does not specifically require paper charts. As official ENCs are comparable in status to official paper charts, while in quality they may be superior, they may be used in the context of Art. 5 to determine the low-water line, if officially recognized by the coastal State. If such charts will be submitted to a tribunal, procedures for examining them and transferring their content to a usually paperbased judgment will have to be developed.

4. Officially Recognized Charts 35

The chart used to establish the low-water line does not need to be produced by the coastal State; it merely needs to be officially recognized by the State. Recognition can have two possible meanings: It can refer to official recognition for the purposes of delimitation, or to recognition as a chart suitable for navigation in the coastal waters of the State. Reg. 2 Ch.V SOLAS states: ‘“Nautical chart” or “nautical publication” is a special-purpose map or book, or a specially compiled database from which such a map or book is derived, that is issued officially by or on the authority of a Government, authorized Hydrographic Office or other relevant government institution and is designed to meet the requirements of marine navigation.’69 65 Ch. V SOLAS 1974 and the Protocol thereto implies the possibility to navigate only with electronic charts, if sufficient backup (which may also be electronic) is provided (Reg. 9, sect. 2.1.4 and accompanying footnote). 66 See IHO Manual on Technical Aspects 2006 (note 12), Ch. 3-4 for a more detailed explanation. See also carriage requirements under Regulation 19 Ch. V SOLAS, requiring the use of ECDIS for certain ships. 67 For a definition of ECDIS and ENC see IMO Resolution A.817 (19), Performance Standards for Electronic Chart Display and Information Systems (ECDIS) and Resolution MSC.232(82) (adopted on 5 December 2006) Adoption of the Revised Performance Standards for Electronic Chart Display And Information Systems (ECDIS): ‘ […] 3 DEFINITIONS For the purpose of these performance standards: 3.1 Electronic Chart Display and Information System (ECDIS) means a navigation information system which with adequate back-up arrangements can be accepted as complying with the up-to-date chart required by regulations V/19 and V/27 of the 1974 SOLAS Convention, as amended, by displaying selected information from a system electronic navigational chart (SENC) with positional information from navigation sensors to assist the mariner in route planning and route monitoring, and if required display additional navigation-related information. 3.2 Electronic Navigational Chart (ENC) means the database, standardized as to content, structure and format, issued for use with ECDIS by or on the authority of a Government, authorized Hydrographic Office or other relevant government institution, and conform to IHO standards. The ENC contains all the chart information necessary for safe navigation and may contain supplementary information in addition to that contained in the paper chart (e. g. sailing directions) which may be considered necessary for safe navigation. […]’. ‘An ENC is an official chart and should not be confused with Electronic Charts (EC) sold by commercial companies’, IHO Manual on Technical Aspects 2006 (note 12), Ch. 3-5. See Hecht, Horst/Jonas, Mathias/ Berking, Bernard, The Electronic Chart, 3rd ed., Lemmer 2011, pp. 39 ff. 68 On certain types of charts, the operator can ‘zoom in’ on an area of interest. See also IHO Manual on Technical Aspects 2006 (note 12), Ch. 3–6. 69 A footnote at the end of the definition states ‘Refer to appropriate resolutions and recommendations of the International Hydrographic Organization concerning the authority and responsibilities of coastal States in the provision of charting in accordance with regulation 9.’

58

Tru¨mpler

Normal baseline

36–40

Art. 5

Merchant ships70 are required to carry ‘adequate and up-to-date charts’ under Reg. 27 Ch. V SOLAS ‘to plan and display the ship’s route for the intended voyage and to plot and monitor positions throughout the voyage’ (Reg. 19 sect. 2.1.4); however, Regulation 9 section 1 requires that ‘Contracting Governments undertake to arrange for the collection and compilation of hydrographic data and the publication, dissemination and keeping up to date of all nautical information necessary for safe navigation. 71 On the other hand, it seems uncommon for States to routinely issue statements that a chart is suitable for delimitation under Art. 5. In the absence of an explicit declaration as to recognition of the chart for boundary delimitation, issuing or authorizing a chart for use in navigation under SOLAS may constitute recognition under Art. 5. This would be in line with the history of Art. 5.72 a) Coastal Defense and Land reclamation. While there may be overlap with Art. 1173 36 there seems to be consensus that coastal defense structures including dykes, levees and seawalls form part of the coastline and may serve as basepoints. 74 Similarly, it seems accepted State practice to shift the territorial sea baseline with land 37 reclamation works. Especially in the Netherlands, vast stretches of the coastline are formed by land reclamation with the man-made low-water line apparently as the accepted normal baseline.75

5. Sea-level Rise The legal situation is unclear regarding substantial changes in the coastline, including the 38 disappearance of islands as the result of climate change. The Convention requires the existence of land with its associated low-water line so that territorial sea may be established. Along with the land vanishes the State’s domination of the sea and the raison d’eˆtre for the territorial sea. The ILA states that ‘[s]ubstantial territorial loss is a much broader issue, encompassing concerns of statehood, national identity, refugee status, state responsibility, access to resources, and international peace and security.’76 The Convention is a constitution of the oceans, but it cannot provide the answer to the fate of States disappearing into the ocean. As long as no legal instrument specifically addresses the issue, it is necessary to evaluate 39 the existing law in UNCLOS. In the framework of the UNCLOS, several technical options are being discussed to mitigate the legal consequences for States from rising sea levels: These are coastal protection of the whole or of salient points of the coastline, and ‘fixing’ the baseline through legal means.77 Coastal protection seems the least contentious option, though substantial construction 40 work may have negative impacts on other States and raise separate issues of liability. 78 In principle, however, coastal protection works are fully in-line with the UNCLOS. Coastal protection may focus on salient points in the coastline instead of the entire coast. The outer limit of the territorial sea depends only on a relatively small number of points along the coast (the outer limit of the EEZ on even less).79 These points could be chosen for selective coastal 70

Ch. V SOLAS 1974 applies to all ships on all voyages, with very few exceptions (see Reg. 1 Ch. V). See also Peter B. Beazley, Maritime Limits and Baselines, A Guide to their Delineation (3rd edn. 1987), 8. 72 The observations on the phrase ‘officially used’ in the 1930 report of the second sub-committee above. 73 See ILA Baseline Report (note 31), 27. See generally Symmons on Art. 11. 74 Chris Carleton, Problems Relating to Non-Natural and Man-Made Basepoints under UNCLOS, in: Clive R. Symmons (ed.), Selected Contemporary Issues in the Law of the Sea (2011), 31–68. 75 ibid., 19–22; Dorst/Elferink/Ligteringen (note 49), 2 and 6; ILA Baseline Report (note 31), 28. 76 ILA Baseline Report (note 31), 31. 77 Clive Schofield/David Freestone, Options to Protect Coastlines and Secure Maritime Jurisdiction in the Face of Global Sea Level Rise, in: Michael B. Gerrard/Gregory E. Wannier (eds.) Threatened Island Nations, Legal Implications of Rising Seas and a Changing Climate (2013), 141–165. 78 Ibid., 153. 79 Tru ¨ mpler on Art. 4 MN 7. 71

Tru¨mpler

59

Art. 6

Part II. Territorial sea and contiguous zone

defense work. The number of points needed may be further reduced by the use of straight (archipelagic) baselines and a focus on the basepoints of the baselines. 80 41 ‘Fixing’ baselines legally and not physically is more controversial. In the context of Art. 5, this would only be possible if the charted line is accepted as the legal baseline and – in contrast to the conclusions above – significant errors in the chart would be disregarded as they appeared over time.81 Outside the context of Art. 5, the use of straight baselines in accordance with Art. 7 (2) has been proposed,82 as well as the use of publication requirements in Arts. 16, 47 and 75. RAYFUSE argues that ‘the ability to stipulate geographic coordinates [under these articles] indicates that baselines and charts may be disaggregated. As such, the charts may subsequently amended for navigation purposes to reflect the physical reality of a receding coast while the baselines and outer EEZ limits remain fixed. Thus, once declared and publicized, these claims attract a presumption of permanence.’ 83

This conclusion though seems inconsistent with the requirement that basepoints be ‘anchored’ on the low-water line.84 42 However, publicized basepoints seem to be updated fairly infrequently 85, with little criticism from other States.86 This may be an indication that States are willing to accept a less frequent updating of charts and associated basepoints as a ‘price’ for the legal certainty gained by publication; though a conclusive study of State practice in this particular regard is yet to be undertaken. It also seems questionable that this legal inertia of publicized baselines (even if accepted) would be unaffected not by mere changes in, but by the disappearance of whole sections of the coastline, or even the inundation of the land itself.

Article 6 Reefs 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 officially recognized by the coastal State. 80

Ibid. See Schofield/Freestone (note 77), 162–163, proposing a dual system of charts for navigational and jurisdictional purposes to ‘avoid potential dangers to seafarers’. See also Rosemary Rayfuse, Sea Level Rise and Maritime Zones, in: Gerrard/Wannier (note 77), 167, 181. 82 Rayfuse (note 81), 182; Schofield/Freestone (note 77), 159. 83 Rayfuse (note 81), 183. 84 ILA Baseline Report (note 31), 2 (footnote 9): ‘It should be noted that the low-water line serves as the anchor for these “straight line” baselines. To be valid in international law each of these baselines – which deviate from the location of the normal baseline – still must attach to or link up with the low-water line at their endpoints, and intermediate turning points.’; ibid., 30: ‘Coastal states may protect and and preserve territory through physical reinforcement, but not through the legal fiction of a charted line that is unrepresentative of the actual low-water line.’ 85 Cf. for example submissions by Argentina, available at: www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/mzn_s/mzn10.pdf: Deposit of charts (straight baselines and outer limits of the EEZ) and lists of geographical coordinates (straight baselines) as contained in Act 23,968 on the Maritime Spaces of 10 September 1991; and Germany, available at: www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/mzn_s/ mzn1.pdf: Deposit of charts and geographical coordinates on the territorial sea and the exclusive economic zone in the Baltic Sea and in the North Sea as contained in: Announcement of the Proclamation by the Government of the Federal Republic of Germany concerning the extension of the breadth of the German territorial sea of 11 November 1994; and Proclamation by the Federal Republic of Germany concerning the establishment of an exclusive economic zone of the Federal Republic of Germany in the North Sea and in the Baltic Sea of 25 November 1994; Rayfuse (note 81), 185 argues ‘by accretion of state practice, baselines may become “fixed” at the geographical coordinates expressed in domestic legislation’. 86 In fact, while pointing out that many coastal states ‘have yet to deposit charts of lists of geographical coordinates with the Secretary-General’, the Oceans and the law of the sea report of the Secretary-General of the United Nations makes no reference to the submitted ones being out-dated: GA, Oceans and Law of the Sea: Report of the Secretary General, UN Doc. A/69/71/ADD.1 (2014), 6 (para. 14). 81

60

Tru¨mpler

Reefs

1–2

Art. 6

Bibliography: Lewis M. Alexander, Baseline Delimitation and Maritime Boundaries, VJIL 23 (1983), 503–536; Peter B. Beazley, Reefs and the 1982 Convention on the Law of the Sea, IJECL 6 (1991), 281–312; Chris Carleton/ Clive Schofield, Developments in the Technical Determination of Maritime Space: Charts, Datums, Baselines, Maritime Zones and Limits, IBRU Maritime Briefing 3(3) (2001); Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); Robert D. Hodgson, Islands: Normal and Special Circumstances, in: John King Gable/ Giulio Pontecorvo (eds.), Law of the Sea Proceedings of the 8th Annual Conference of the Law of the Sea Institute (1974), 137–199; Robert D. Hodgson/Lewis M. Alexander, Towards an Objective Analysis of Special Circumstances: Bays, Rivers, Coastal and Oceanic Archipelagos and Atolls, Law of the Sea Institute Occasional Paper No. 13 (1972); Robert D. Hodgson/Robert W. Smith, The Informal Single Negotiating Text (Committee II): A Geographical Perspective, ODIL 3 (1976), 225–259; Ian Kawaley, Delimitation of Islands Fringed with Reefs: Article 6 of the 1982 Law of the Sea Convention, ICLQ 41 (1992), 152–160; Myron Nordquist (ed.), New Directions in the Law of the Sea, vol. 7 (1980); Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Daniel P. O’Connell, The International Law of the Sea, vol. I (1982); John R. V Prescott, The Maritime Political Boundaries of the World (1985); Michael W. Reisman/Gayl S. Westerman, Straight Baselines in International Maritime Boundary Delimitation (1992); Clive R. Symmons, The Maritime Zones of Islands in International Law (1979); Kai Tru¨mpler, Grenzen und Abgrenzungen des Ku¨stenmeeres (2007); Wolfgang Graf Vitzthum/Stefan Talmon, Alles fließt: Kulturgu¨terschutz und innere Gewa¨sser im neuen Seerecht (1998) Documents: IHO, A Manual on the Technical Aspects of the United Nations Convention on the Law of the Sea – 1982, Special Publication No. 51 (edn. 5.0.0 June 2014); IHO, Regulations of the IHO for International (INT) Charts and Chart Specifications of the IHO (edn. 4.5.0 October 2014); ILC, Additif au deuxie`me rapport de M. J. P. A. François, rapporteur spe´cial, UN Doc. A/CN.4/61/ADD.1 (1953), ILC Yearbook (1953), vol. II, 75–78; ILC, Re´gime of the Territorial Sea: Troisie`me rapport de J.P.A. François, rapporteur spe´cial, UN Doc. A/CN.4/77 (1954); UN DOALOS, Baselines: An Examination of the Relevant Provisions of the United Nations Convention on the Law of the Seas (1989); US Department of State, US Commentary: The 1982 United Nations Convention on the Law of the Sea, in: US Department of State Dispatch Supplement: Law of the Sea Convention, vol. 6 Supplement No. 1 (1995), 8, reprinted in: ILM 34 (1999), 1403 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘islands situated on atolls or islands having fringing reefs’. . . . . . . . . . . . . . . . . . . . . . . 2. Status of Enclosed Waters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘is the seaward low-water line of reef’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. ‘as shown by the appropriate symbol on charts officially recognized by the coastal State’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 5 5 6 7 10

I. Purpose and Function With a twelve-mile territorial sea, Art. 6 may seem redundant, given most reefs are likely 1 to be situated within a distance less than the breadth of the territorial sea from the shore and thus constitute a low-water line under Art. 13.1 Though Art. 13 allows for the use of the lowwater line of certain low-tide elevations (LTE) for measuring the breadth of the territorial sea – thus extending the territorial sea – Art. 6 shifts the low-water line further seaward to the reef, making the waters landward of the reef internal waters. Its main purpose is thus to reflect the special importance of reef-enclosed waters by changing their legal status: Waters landward of the reef are subject to the regime of internal waters (� Art. 8), limitations to State sovereignty applicable in the territorial sea (such as innocent passage) do not apply.

II. Historical Background Unlike most rules on the delimitation of the territorial sea, Art. 6 is an addition made by 2 the UNCLOS. Although the International Law Commission (ILC) rapporteur FRANÇOIS had 1

Peter B. Beazley, Reefs and the 1982 Convention on the Law of the Sea, IJECL 6 (1991), 281, 298.

Tru¨mpler

61

Art. 6

3–4

Part II. Territorial sea and contiguous zone

proposed the use of coral reefs as baselines in his 1953 report 2, the idea was dropped without any further explanation in the subsequent report3, perhaps in connection with a general revision of the regulations concerning low-tide elevations. The 1953 proposal was part of the article on the normal baseline and followed the advice provided by a committee of experts invited by FRANÇOIS to make recommendations on technical questions relating to the territorial sea.4 Its wording suggested that FRANÇOIS intended a lex specialis for coral reefs: ‘As regards coral reefs, the edge of the reef as marked on the abovementioned charts, should be accepted as the low-water line for measuring the territorial sea’.5

The expression ‘accepted as’ indicates a legal fiction that even constantly submerged coral reefs – as long as they were marked as reefs on nautical charts – were to be considered as providing a low-water line. 3 The notion of a special rule for coral reefs resurfaced in the preparations for the UNCLOS, possibly because of the larger number of island States involved in the discussion. 6 Following a Maltese proposal in the Sea-Bed Committee in 1973,7 in 1974, four island States presented a common proposal8 that closely resembles Art. 6 in all but one decisive point. The wording suggested that the baseline be the ‘seaward edge of the reef, as shown on official charts.’ It was thus closer to the original FRANÇOIS proposal, as it did not refer to the low-water line of the reef but its seaward edge. The reason behind this proposal was probably a desire to reflect the special situations of atolls, where coral reefs have grown over time to enclose a lagoon and often form an island.9 The inhabitants of the island, which is often quite small in land area, depend on their survival on the whole system formed by their island with the surrounding lagoon and reef.10 4 It seemed justified to drop the distinction between drying and continuously submerged reefs which may seem arbitrary in these circumstances. 11 However, the Revised Single Negotiating Text replaced ‘seaward edge’ with ‘seaward low-water line’ thus limiting Art. 6 to reefs that are above the low-water datum chosen by the State. 12 2 ILC, Additif au deuxie `me rapport de M. J. P. A. François, rapporteur spe´cial, UN Doc. A/CN.4/61/ADD.1 (1953), ILC Yearbook (1953), vol. II, 75, 76 (Annex ‘Rapport du Comite´ d’experts sur certaines questions d’ordre technique concernant la mer terre´toriale’, IV): ‘En ce qui concerne les banes de coreaux, on conside´rera le rebord de ces banes, indique´ sur ces cartes, comme la laisse de basse mer pour tracer la limite de la mer territoriale.’ For details on State practice prior to UNCLOS I, see Daniel P. O’Connell, The International Law of the Sea, vol. I (1982), 185–193. 3 ILC, Re ´gime of the Territorial Sea: Troisie`me rapport de J.P.A. François, rapporteur spe´cial, UN Doc. A/ CN.4/77 (1954), 1, 3. 4 ILC Addition to the Second Report on the Territorial Sea (note 2), 77, 78. 5 Ibid.; English translation as given in and Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 59. 6 Lewis M. Alexander, Baseline Delimitation and Maritime Boundaries, VJIL 23 (1983), 503, 510, refers to ‘warmer climate island states’: Madagascar, West Samoa, Jamaica, Maldives, Nauru, Mauritius, Fiji and the Seychelles. 7 Nordquist/Nandan/Rosenne (note 5), 92 (MN 6.3.); Sea-Bed Committee, Malta: Preliminary Draft Articles on the Delimitation of Coastal State Jurisdiction in Ocean Space and on the Rights and Obligations of Coastal States in the Area under their Jurisdiction, UN Doc. A/AC.138/SC.II/L.28 (1973), GAOR 28th Sess. Suppl. 21 (A/ 9021) vol. III, 35, 38; the draft was not necessarily reflecting the views of the Maltese government. 8 Second Committee UNCLOS III, Fiji et al.: Draft Articles on Islands and on Territories under Foreign Domination or Control, UN Doc. A/CONF.62/C.2/L.30 (1982), OR III, 210, 211. 9 Robert D. Hodgson, Islands: Normal and Special Circumstances, in: John King Gable/Giulio Pontecorvo (eds.), Law of the Sea Proceedings of the 8th Annual Conference of the Law of the Sea Institute (1974), 137, 164– 166, includes detailed information on the origin of atolls. 10 Robert D. Hodgson/Lewis M. Alexander, Towards an Objective Analysis of Special Circumstances: Bays, Rivers, Coastal and Oceanic Archipelagos and Atolls, Law of the Sea Institute Occasional Paper 13 (1972), 53–54. 11 Alexander (note 6), 511. 12 UNCLOS III, Revised Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/REV.1/PART II (1976), OR V, 151, 154 (Art. 5); according to Robert D. Hodgson/Robert W. Smith, The Informal Single Negotiating Text (Committee II): A Geographical Perspective, ODIL 3 (1976), 225, 229–230, this was supposed to be the case in previous versions of the text and was indicated by the phrase ‘by appropriate symbol’.

62

Tru¨mpler

Reefs

5–7

Art. 6

III. Elements 1. ‘islands situated on atolls or islands having fringing reefs’ The inclusion of Art. 6 stems from the desire to give special recognition and protection to 5 atolls/lagoons/reefs. As a technical term of geomorphology, atoll refers to ‘reefs which surround a lagoon and are surmounted by one or more islands,’ while fringing reef refers to reefs ‘derived from some biological process involving coral, oysters or lime-secreting worms’. 13 However, it would be at odds with the systematical approach of Part II to restrict Art. 6 to atolls in the geomorphological sense. The rules of Part II determine the limit of the territorial sea based on information found on charts; formations that have the same appearance on a chart are treated in the same way. Atolls and fringing reefs should be no exception. If a formation appears to be an atoll on the chart, i. e. an island surrounded by reefs, Art. 6 should be applicable, regardless of the geomorphological origin of the formation.14 Also, ‘fringing reef’ may refer to any reef, including a barrier reef, which forms a fringe along the shore of an island. 15 While the origin of the text argues for a wide interpretation regarding the origin of the atoll and reef, it indicates a narrow interpretation in terms of appearance of the insular formation. Otherwise the text would allow larger islands (e. g. Iceland, Great Britain) to include reefs in their baseline system using Art. 6. Such an interpretation would, however, contradict the history and purpose of Art. 6. Both indicate a limitation to islands where the need for special protection and the interdependence of atoll/lagoon/reef are inherent in the insular formation. 16

2. Status of Enclosed Waters The clear wording indicates the advantage and rationale for Art. 6: Waters so delimited 6 landwards are true internal waters under Art. 8 (1), in contrast to both the effect of LTE, which merely extend the territorial sea, and to a system of straight baselines (Art. 7), where resulting internal waters are subject to the right of innocent passage under Art. 8 (2).

3. ‘is seaward low-water line of the reef’ The historical background indicates that Art. 6 requires the reef to be above the chart 7 datum. In contrast to Art. 47 (1) and (7), Art. 6 does not explicitly refer to ‘drying reefs’, which may give rise to some doubts about this historical interpretation. 17 However, the reference to ‘drying reefs’ in Art. 47 (1) and (7) cannot imply that reefs under Art. 6 may be constantly submerged. This would require ‘low-water line’ in Art. 6 to have a completely different meaning than in all other articles of the Convention. Also, further analysis of Art. 47 (7) reveals that its first part is likely a reference to areas delimited using Art. 6, 18 while 13 UN DOALOS, Baselines: An Examination of the Relevant Provisions of the United Nations Convention on the Law of the Seas (1989), 5 (para. 16): ‘Geomorphologists reserve the term atoll for reefs which surround a lagoon and are surmounted by one or more islands’; and ibid., 8 (para. 21): ‘The term “fringing reefs” also has a strict meaning in geomorphology. Such reefs are derived from some biological process involving coral, oysters or lime-secreting worms’. 14 Ibid., 7 (para. 17); Chris Carleton/Clive Schofield, Developments in the Technical Determination of Maritime Space: Charts, Datums, Baselines, Maritime Zones and Limits, IBRU Maritime Briefing 3(3) (2001), 25–26; John R. V Prescott, The Maritime Political Boundaries of the World (1985), 48; compare: IHO, A Manual on the Technical Aspects of the United Nations Convention on the Law of the Sea – 1982, Special Publication No. 51 (edn. 5.0.0 2014), Appendix 1-23 (para. 74): ‘Reef/A mass of rock or coral […]’. Arguing that Art. 6 refers to coral reefs only: Beazley (note 1), 298. 15 UN DOALOS Baselines (note 13), 10 (para. 23). 16 Kai Tru ¨ mpler, Grenzen und Abgrenzungen des Ku¨stenmeeres (2007), 52. 17 Ian Kawaley, Delimitation of Islands Fringed with Reefs: Article 6 of the 1982 Law of the Sea Convention, ICLQ 41 (1992), 152, 157. 18 Clive R. Symmons, The Maritime Zones of Islands in International Law (1979), 46.

Tru¨mpler

63

Art. 6

8–10

Part II. Territorial sea and contiguous zone

its second part refers to a special interest case outside Art. 6. 19 In the latter case the fact that the second part refers explicitly to ‘drying reefs’ would ensure that it does not contradict the first part by allowing submerged reefs to be used. It would thus serve as a confirmation of the historical interpretation of Art. 6. 8 While atolls are mostly closed,20 there are often gaps and channels in the surrounding reef.21 There are no special rules for drawing closing lines in this situation. The direct application of Art. 10 would stretch the meaning of ‘well-marked indentation’ exceedingly, as the reef might be submerged for most of the time. Art. 9 seems also inapplicable, while Art. 11 might apply if the edges of the reef form part of the ‘harbour works’. However, Art. 6 presumes the option of a closing line:22 Otherwise, only waters in naturally fully enclosed lagoons may in their totality be internal waters; this would run counter to the intention of Art. 6 to provide special protection to the waters inside the fringing reef. As these waters are landlocked (though this might not be immediately visible at high tide) their situation is comparable to that of waters in a bay under Art. 10. Thus it would be sensible to apply the same principles to closing lines of fringing reefs as to bays, notably the limitation on absolute length.23 9 Art. 6 is a rule for the special case of islands with fringing reefs. It does not make otherwise ineligible LTE suitable for selection as base points for a system of straight baselines under Art. 7.24 Despite its fairly recent history, Art. 6 is part of customary international law.25

4. ‘as shown by the appropriate symbol on charts officially recognized by the coastal State’ 10

While Art. 5 makes an explicit reference to large-scale charts, Art. 6 references merely ‘charts’; this does not seem to form much of a practical problem. International Hydrographic Organization (IHO) standards provide clear guidelines for the marking of reefs on large and medium-scale charts.26 If charts use appropriate symbols, such as those recommended by the IHO, can be used for safe navigation, and are officially recognized by the coastal State 27, the low-water line of the reef can be used for delimitation purposes. 28

19

For further information, see Symmons on Art. 47. According to Hodgson/Alexander (note 10), 165, coral reefs generally cover more than 75% of the perimeter of the lagoon, and usually about 90%. 21 UN DOALOS Baselines (note 13), 10 (para. 26). 22 Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 52; UN DOALOS Baselines (note 13), 9–10 (para. 25); Kawaley (note 17), 157; US Department of State, US Commentary: The 1982 United Nations Convention on the Law of the Sea, in: US Department of State Dispatch Supplement, Law of the Sea Convention, vol. 6 Supplement No. 1 (1995), 8 (reprinted in: ILM 34 (1999), 1403 et seq.); Nordquist/Nandan/Rosenne (note 5), 94 (para. 6.7 (d)). See S. 5 Tokelau (Territorial Sea and Exclusive Economic Zone) Act 1977, Myron Nordquist (ed.), New Directions in the Law of the Sea, vol. 7 (1980), 468 and http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/NZL_1977_Act.pdf as an example for such a closing line. 23 Carleton/Schofield (note 14), 26. 24 Michael W. Reisman/Gayl S.Westerman, Straight Baselines in International Maritime Boundary Delimitation (1992), 94. 25 O’Connell (note 2), 195; Kawaley (note 17), 152, 158–159 with references to state practice of Fiji, Kiribati, Maldives, Solomon Islands, Tonga, Tuvalu, Vanuatu, Cook Islands, Niue, and Tokelau. 26 Cf. IHO, Regulations of the IHO for International (INT) Charts and Chart Specifications of the IHO (edn. 4.5.0 October 2014), S. B-426.3 (Nature of the Seabed: Intertidal Areas, Coral Reefs and Foreshores). 27 On this elements, see Tru ¨ mpler on Art. 5 MN 33. 28 Nordquist/Nandan/Rosenne (note 5), 94 (para. 6.7(e)). 20

64

Tru¨mpler

Art. 7

Straight baselines

Article 7 Straight baselines 1. 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. 2. 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 low-water 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. 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 sufficiently closely linked to the land domain to be subject to the regime of internal waters. 4. Straight 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 except in instances where the drawing of baselines to and from such elevations has received general international recognition. 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. 6. 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 exclusive economic zone. Bibliography: Lewis M. Alexander, Baseline Delimitations and Maritime Boundaries, VJIL 23 (1983), 503–536; Eduardo Jime´nez de Are´chaga, Argentina-Chile Report 3-1, in: Jonathan I. Charney (ed.), International Maritime Boundaries, vol. I (1993), 719–750; Peter B. Beazley, Maritime Limits and Baselines: A Guide to their Delineation (3rd edn. 1987); Peter B. Beazley, Territorial Sea Baselines, International Hydrographic Review 48 (1971), 143– 154; S. Whittemore Boggs, Delimitation of Seaward Areas under National Jurisdiction, AJIL 45 (1951), 240–266; S. Whittemore Boggs, The Method of Delimitation Proposed by the Delegation of the United States at the Hague Conference for the Codification of International Law, AJIL 24 (1930), 541–555; Chris Carleton/Clive H. Schofield/ Shelagh Furness, Developments in the Technical Determination of Maritime Space: Charts, Datums, Baselines and Maritime Zones (2001); Vladimir D. Degan, Internal Waters, NYIL 17 (1986), 3–44; Jens Evensen, The Anglo-Norwegian Fisheries Case and its Legal Consequences, AJIL 46 (1952), 609–630; 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, ICLQ 8 (1959), 73–121; Lothar Gu¨ndling, Fisheries Case (U.K. v. Norway), in: Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, vol. II (1995), 381–383; Robert D. Hodgson/Lewis M. Alexander, Towards an Objective Analysis of Special Circumstances: Bays, Rivers, Coastal and Oceanic Archipelagos and Atolls (1972); Robert D. Hodgson/Robert W. Smith, The Informal Single Negotiating Text (Committee II): A Geographical Perspective, ODIL 3 (1976), 225–259; Alan V. Lowe/Robin R. Churchill, The International Tribunal for the Law of the Sea: Survey for 2001, IJMCL 17 (2002), 463–484; Sally MacDonald/J. Victor Prescott, Baselines Along Unstable Coasts: An Interpretation of Article 7 (2), Ocean Yearbook 8 (1989), 70–89; Fritz Mu¨nch, Urteil des Internationalen Gerichtshofes vom 18. Dezember 1951 im englisch-norwegischen Fischereistreit, AVR 5 (1955/56), 214–219; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Daniel P. O’Connell, The International Law of the Sea, vol. I (1982); G. Orlova/V. Zenkovich, Erosion of the Shores of the Nile Delta, Geoforum 5 (1974), 68–72; J. Victor Prescott, Straight Baselines, Theory and Practice, in: Robin R. Churchill/Edward D. Brown (eds.), The UN Convention on the Law of the Sea: Impact and Implementation: Proceedings, Law of the Sea Institute Nineteenth Annual Conference (1987), 288–318; J. Victor Prescott/Eric C. Bird, The Influence of Rising Sea Levels on Baselines from which National Maritime Claims are Measured and an Assessment of the Possibility of Applying Article 7 (2) of the 1982 Convention on the Law of the Sea to Offset any Retreat of the Baseline, in: Carl GrundyWarr (ed.), International Boundaries and Boundary Conflict Resolution: Proceedings of the 1989 IBRU Conference (1990), 279–300; Benjamin H. Read, Normal and Straight Baselines, in: Marjorie M. Whiteman (ed.), Digest of International Law, vol. IV (1965), 148–149; excerpt (pp. 31–33) from Benjamin H. Read, Attorney Adviser, Office of the Legal Adviser, Normal and Straight Baselines, US/CLS/LEG/4-5, August 1957; W. Michael Reisman, Straight Baselines in International Law: A Call For Reconsideration, ASIL Proceedings of the Annual

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Meeting 82 (1988), 260–277, available at http://digitalcommons.law.yale.edu/fss_papers/749; W. Michael Reisman/Gayl S. Westerman, Straight Baselines in International Maritime Boundary Delimitation (1992); J. Ashley Roach/Robert W. Smith, United States Responses to Excessive Maritime Claims (2nd edn. 1996); Tullio Scovazzi, Atlas of the Straight Baselines (2nd edn. 1989); Tullio Scovazzi, The Establishment of Straight Baseline Systems: The Rules and the Practice, in Davor Vidas/Willy Østreng (eds.), Order for the Oceans at the Turn of the Century (1999), 445–457; Yoshifumi Tanaka, The International Law of the Sea (2nd edn. 2015); Kai Tru¨mpler, Grenzen und Abgrenzungen des Ku¨stenmeeres (2007); Wolfgang Graf Vitzthum/Stefan Talmon, Alles fließt: Kulturgu¨terschutz und innere Gewa¨sser im neuen Seerecht (1998); Humphrey M. Waldock, The AngloNorwegian Fisheries Case, BYIL 28 (1951), 114–171; Marjorie M. Whiteman (ed.), Digest of International Law, vol. IV (1965) Documents: ILA Baseline Committee, Baselines under the International Law of the Sea, Sofia Conference (2012); ILA Baseline Committee, Baselines under the International Law of the Sea, Washington Conference (2014); ILC, Additif au deuxie`me rapport de M. J. P. A. François, rapporteur spe´cial, UN Doc. A/CN.4/61/ADD.1 (1953), ILC Yearbook (1953), vol. II, 75–78; ILC, Report of the International Law Commission, UN Doc. A/2934 (1955), reproduced in: ILC Yearbook (1955), vol. II, 19; ILC, Re´gime of the Territorial Sea: Rapport par J.P.A. François, rappoteur spe´cial, UN Doc. A/CN.4/53 (1952), ILC Yearbook (1952), vol. II, 25–43; ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4; ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12; ILC, Report of the International Law Commission Covering the Work of its 7th Session, UN Doc. A/2934 (1955); UN DOALOS, Baselines: National Legislation with Illustrative Maps (1989); UN DOALOS, Baselines: An Examination of the Relevant Provisions of the United Nations Convention on the Law of the Seas (1989); United States Department of State: Bureau of Oceans and International Environmental and Scientific Affairs, Limits in the Seas No. 106: Developing Standard Guidelines for Evaluating Straight Baselines (1987) http://www.state.gov/documents/organization/59584.pdf Cases: ICJ, Aegean Sea Continental Shelf Case (Greece v. Turkey) Judgment of 19 December 1978, ICJ Reports (1978), 3; ICJ, Fisheries Case (United Kingdom v. Norway), Judgment of 18 December 1951, ICJ Reports (1951), 116; ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Netherlands/Denmark), Judgment of 20 February 1969, ICJ Reports (1969), 3; ICJ, Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment of 16 March 2001, ICJ Reports (2001), 40; PCA, Award on Territorial Sovereignty and Scope of the Dispute (Eritrea v. Yemen), Award of 9 October 1998, ILM (2001), 900; PCA, Bay of Bengal Maritime Boundary Arbitration between Bangladesh and India (Bangladesh v. India), Award of 7 July 2014, available at: http://www.pca-cpa.org/showpage.asp?pag_id=1376 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Employment of Straight Baselines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) ‘In localities where the coastline’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) ‘is deeply indented and cut into’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aa) ‘deeply indented’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bb) Number of Indentations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . cc) ‘and cut into’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) ‘fringe of islands along the coast in its immediate vicinity’. . . . . . . . . . . . . . . . . . aa) ‘along the coast’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bb) ‘immediate vicinity’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . cc) ‘appropriate points’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Selection of Basepoints on the Low-Water Line in the Case of a Highly Unstable Coastline . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) ‘Where’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) ‘presence of a delta and other natural conditions’ . . . . . . . . . . . . . . . . . . . . . . . . . . . c) ‘the coastline is highly unstable’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. No Departure from the General Direction of the Coast and the Linkage Requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) ‘must not depart to any appreciable extent from the general direction of the coast’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) ‘the sea areas lying within the lines must be sufficiently closely linked’ . . . . . 4. Drawing Straight Baselines to Low-Tide Elevations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Impact of Economic Interests on the Drawing of Straight Baselines . . . . . . . . . . . . a) ‘economic interests peculiar to the region concerned’ . . . . . . . . . . . . . . . . . . . . . . . b) ‘evidenced by long usage’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. Proscription of Cutting-Off the Territorial Sea of Another State. . . . . . . . . . . . . . . . 7. Critique of Straight Baselines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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1 3 9 9 11 12 14 16 17 23 24 25 26 27 30 33 34 37 38 40 41 43 44 45 46 47

Straight baselines

1–3

Art. 7

I. Purpose and Function The plain purpose of Art. 7 – together with Art. 16 – is the simplification of otherwise 1 complicated coastlines and the enhancement of legal certainty on territorial sea baselines. The territorial sea off complicated coastlines may otherwise be hard to determine, leaving mariners unsure as to its limit. Historically, those aims were plausible when the sovereignty of the State ended 3 NM off its coast. With the acceptance of a 12 NM territorial sea and a 200 NM exclusive economic zone (EEZ), a rationale for Art. 7 that is coherent with the system of drawing baselines of Part II of the UNCLOS is no longer easy to discern. Art. 7 (1) addresses those situations where the coastline is complicated, due to special 2 geographic features, and straight baselines may serve to simplify it. Art. 7 (2) addresses a special situation, that of a volatile coastline, and the purpose of this paragraph is not so much spatial but temporal simplification. Art. 7 (3) provides some criteria for the drawing process, while paragraph 4 addresses technical issues of admissible basepoints (in this context the end of each baseline). Art. 7 (5) introduces non-geographical considerations to the process, that can best be understood by the historical background. Art. 7 (6) contains a safeguard against one coastal State being cut-off from the high seas by the drawing of straight baselines.

II. Historical Background Straight baselines are a relatively new phenomenon in international law. While Norway in 3 18691 and France in 18882 established straight baselines on parts of their coasts, it does not seem that many other States followed the practice.3 The matter received some discussion at the 1930 Hague Codification Conference, but straight baselines are not mentioned in the report of the Second Sub-committee,4 even though the Norwegian government explicitly reported its practice to use straight baselines.5 However, at the time, delegations may not have clearly distinguished between the question of bay closing lines and straight baselines. 6 1 Royal Decree 16th October 1869, cf. ICJ, Pleadings, Oral Arguments, Documents: Fisheries Case (United Kingdom v. Norway), vol. I, 259 (para. 59); ICJ, Pleadings, Oral Arguments, Documents: Fisheries Case (United Kingdom v. Norway), vol. II, 56. 2 Daniel P. O’Connell, The International Law of the Sea, vol. I (1982), 199 (footnote 125). 3 Other States that used straight baselines prior to 1951 include: Ecuador, Egypt, Iran, Saudi Arabia and Yugoslavia: Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 34 (footnote 8); Benjamin H. Read, Normal and Straight Baselines, in: Marjorie M. Whiteman (ed.), Digest of International Law, vol. IV (1965), 148, excerpt (pp. 31–33) from Benjamin H. Read, Attorney Adviser, Office of the Legal Adviser, Normal and Straight Baselines, US/CLS/LEG/4-5, August 1957. 4 League of Nations, Acts of the Conference for the Codification of International Law: Meetings of the Committees, vol. III: Minutes of the Second Committee, LN Doc. C.351(b).M.145(b).1930.V (1930), 217 (Appendix II: Report of Sub-Committee No. II). 5 League of Nations, Conference for the Codification of International Law: Bases of Discussion for the Conference Drawn Up by the Preparatory Committee, vol. II: Territorial Waters, LN Doc. C.74.M.39.1929.V.2 (1929), 37; League of Nations, Committee of Experts for the Progressive Codification of International Law: Report to the Council of the League of Nations on the Questions Which Appear Ripe for International Regulation, LN Doc. C.196.M70.1927.V. (1927), Annex II: Replies by Governments to the Questionnaires Nos. 1 to 7, reproduced in: Shabtai Rosenne (ed.), League of Nations Committee of Experts for the Progressive Codification of International Law, vol. II: Documents (1972), 153, 198 (Norway); see joint proposal of Norway and Sweden, League of Nations, Acts of the Conference for the Codification of International Law: Meetings of the Committees, vol. III: Minutes of the Second Committee, LN Doc. C.351(b).M.145(b).1930.V (1930), 190–191 (Annex II: Observations and Proposals Regarding the Bases of Discussion Presented to the Plenary Committee by Various Delegations), reproduced in: Shabtai Rosenne (ed.), League of Nations Conference for the Codification of International Law (1930), vol. IV (1975), 1392–1393. 6 See S. Whittemore Boggs, The Method of Delimitation Proposed by the Delegation of the United States at the Hague Conference for the Codification of International Law, AJIL 24 (1930), 541, 544 and the statement of the Norwegian delegate (League of Nations, Acts of the Conference for the Codification of International Law:

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Art. 7 4

4–6

Part II. Territorial sea and contiguous zone

The acceptance of straight baselines in UNCLOS I and hence in UNCLOS III was a direct result of Norwegian practice. In its 1951 Fisheries Case decision, the International Court of Justice (ICJ) ruled on the conformity of Norwegian baselines with international law, resolving a disagreement that dated back to 1906.7 At the core of the dispute was the validity of a Norwegian fisheries zone established 4 NM (the then traditional Norwegian breadth) from a system of straight baselines. Norway had started enforcing these limits more stringently in 1948, preventing British trawlers from using these waters, eventually leading the UK to bring the matter before the ICJ.8 The Court ruled on the principles guiding the Norwegian delimitation9 and on the validity of individual Norwegian baselines.10 The ICJ found the Norwegian practice to be in conformity with international law. It stated: ‘Where a coast is deeply indented and cut into, as is that of Eastern Finnmark, or where it is bordered by an archipelago such as the ‘skjærgaard’ along the western sector of the coast here in question, the base-line becomes independent of the low-water mark, and can only be determined by means of a geometrical construction.’11

The Court did not accept the UK’s view that Norway had to use the envelopes of arcs of circles method for this construction as the Court found such a system to be non-obligatory under international law.12 5 The Court agreed upon the Norwegian baseline system, finding that other States had also drawn straight baselines ‘where it was solely a question of giving a simpler form to the belt of territorial waters’.13 Introducing criteria to limit the use of straight baselines, the Court went on to state that ‘the drawing of base-lines must not depart to any appreciable extent from the general direction of the coast [the areas in question should be] sufficiently closely linked to the land domain to be subject to the regime of internal waters, [finally] certain economic interests peculiar to a region, the reality and importance of which are clearly evidenced by a long usage’14

have to be taken into consideration. Perhaps more importantly, the Court specifically rejected the notion that the baselines should have a maximum length. The UK had argued for such a limitation based on emerging international law that indicated a limitation for closing lines of bays; however, the Court found that ‘the ten-mile rule has not acquired the authority of a general rule of international law’.15 6 The impression remains that the Court was influenced by the situation of local fishermen facing the competition of an industrialized fleet. It stated: ‘In these barren regions the inhabitants of the coastal zone derive their livelihood essentially from fishing.’16 At the time, the concept of a fishery zone independent from the territorial sea was not generally accepted. 17 Meetings of the Committees, vol. III: Minutes of the Second Committee, LN Doc. C.351(b).M.145(b).1930.V (1930), 15, reproduced in: Rosenne, 1975 (note 5), 1217), directly comparing bays and the Skjaergaard. 7 ICJ, Fisheries Case (United Kingdom v. Norway), Judgment of 18 December 1951, ICJ Reports (1951), 116. For detailed discussion of the case see also: Humphrey M. Waldock, The Anglo-Norwegian Fisheries Case, BYIL 28 (1951), 114–171; Jens Evensen, The Anglo-Norwegian Fisheries Case and its Legal Consequences, AJIL 46 (1952), 609–630; Fritz Mu¨nch, Urteil des Internationalen Gerichtshofes vom 18. Dezember 1951 im englisch-norwegischen Fischereistreit, AVR 5 (1955/56), 214–219; Lothar Gu¨ ndling, Fisheries Case (U.K. v. Norway), in: Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, vol. II (1995), 381–383 including further references. 8 Fisheries Case (note 7), 125 and 118. 9 Ibid., 126 and 127–132. 10 Ibid., 126 and 132–143. 11 Ibid., 128–129. 12 Ibid., 129 though the reasoning leaves the impression the Court might not have fully taken into consideration the geometric properties of that line. 13 Ibid., 130. 14 Ibid., 133, concerning the linkage of the enclosed waters to the land domain the Court stated that this idea ‘should be liberally applied in the case of a coast, the geographical configuration of which is as unusual as that of Norway’. 15 Ibid., 131. 16 Ibid., 128. 17 For further information on the development of the EEZ, see Proelss on Art. 56.

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7–8

Art. 7

The only means for a State to assert exclusive fishery rights was through the territorial sea. 18 The issue was thus inseparable from the economic implications on coastal fisheries. There is a direct line from the findings of the ICJ to the International Law Commission’s 7 (ILC) preparatory work for UNCLOS I. In his first draft, special rapporteur FRANÇOIS copied the essence of the Court’s language and included straight baselines as an alternative to the normal baseline in the same article.19 The next draft was drastically changed by the results of the expert committee convened by FRANÇOIS in 1953 to address technical questions in the ILC’s work. The experts (most of which were part of the Hague deliberations in 1930) tried to set a quantifiable framework for the use of straight baselines with notably a 10 mile-limit on length20 and a 5 mile distance limit from the coast.21 FRANÇOIS based his next draft on the experts’ advice. It drew heavy criticism from some members of the Commission. The ILC’s divide into ‘expansionists’ arguing for the widest potential extension of coastal sovereignty and ‘contractionists’22 trying to restrict this extension showed itself very clearly in this argument, perhaps more clearly than in any other question, save the extent of the territorial sea. The final draft of the ILC in 1956 dropped all numerical limitations on straight baselines, but included the right of innocent passage in the newly created internal waters.23 Debate continued at the Geneva Conference itself in 1958. 24 The First Committee agreed 8 on a maximum limit of 15 NM for straight baselines, albeit with some exceptions. 25 The plenary removed the limit following a proposal from Canada26 and adopted Art. 4 Conven18 Ibid., 125: ‘Although the Decree of July 12th, 1935, refers to the Norwegian fisheries zone and does not specifically mention the territorial sea, there can be no doubt that the zone delimited by this Decree is none other than the sea area which Norway considers to be her territorial sea.’ 19 ILC, Re ´gime of the Territorial Sea: Rapport par J.P.A. François, rappoteur spe´cial, UN Doc. A/CN.4/53 (1952), ILC Yearbook (1952), vol. II, 25, 32–34. 20 ILC, Additif au deuxie `me rapport de M. J. P. A. François, rapporteur spe´cial, UN Doc. A/CN.4/61/ADD.1 (1953), ILC Yearbook (1953), vol. II, 75, 77, 78 (Annex: ‘Rapport du Comite´ d’experts sur certaines questions d’ordre technique concernant la mer territorial’, III, paras. 1 and 2). 21 Ibid., 78–79 (IV). 22 For the terminology: W. Michael Reisman/Gayl S. Westerman, Straight Baselines in International Maritime Boundary Delimitation (1992), 44; W. Michael Reisman, Straight Baselines in International Law: A Call For Reconsideration, ASIL Proceedings of the Annual Meeting 82 (1988), 260, 261. 23 ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4–5. With regard to right of innocent passage in this newly created waters, see the proposal of Fitzmaurice: ILC, Summary Records of the Eight Session, ILC Yearbook (1956), vol. I, 186 (para. 40) and 190 (para. 34). The idea to extent the right of innocent passage originated with Lauterpacht in 1954: ILC, Summary Records of the Sixth Session, ILC Yearbook (1954), vol. I, 74 (para. 27). 24 In favour of a limit to baseline length: Federal Republic of Germany (First Committee UNCLOS I, Summary Records of Meetings and Annexes, UN Doc. A/CONF.13/39 (1958), OR III, 45 (para. 28)), Sweden (ibid., 156 (para. 6)), the United Kingdom (ibid., 9 (para. 30) and First Committee UNCLOS I, United Kingdom of Great Britain and Northern Ireland: Revised Proposal (Article 5), UN Doc. A/CONF.13/C.1/L.62/CORR.1 (1958), OR III, 228), Italy (First Committee UNCLOS I, Summary Records of Meetings and Annexes, UN Doc. A/CONF.13/ 39 (1958), OR III, 148 (para. 26) and First Committee UNCLOS I, Federal Republic of Germany, Greece, Italy and Japan: Proposal, UN Doc A/CONF.13/C.1/L.157 (1958), OR III, 252) and Japan (First Committee UNCLOS I, Japan: Proposal, UN Doc. A/CONF.13/C.1/L.95 (1958), OR III, 238), Greece (First Committee UNCLOS I, Greece: Proposal (Articles 1, 4, 5, 7 and 12) UN Doc. A/CONF.13/C.1/L.63 (1958), OR III, 229), Spain (First Committee UNCLOS I, Spain: Proposal (Article 5), UN Doc. A/CONF.13/C.1/L.91 (1958), OR III, 237), Philippines (First Committee UNCLOS I, Philippines: Proposal (article 5), UN Doc. A/CONF.13/C.1/L.98 (1958), OR III, 239) and United States of America (First Committee UNCLOS I, United States of America: Proposal (Article 5), UN Doc. A/CONF.13/C.1/L.91 (1958), OR III, 235); against USSR (First Committee UNCLOS I, Summary Records of Meetings and Annexes, UN Doc. A/CONF.13/39 (1958), OR III, 156 (para. 16). 25 First Committee UNCLOS I, Text of the Articles and the Resolution Adopted by the First Committee, UN Doc. A/CONF.13/C.1/L.168 (1958). OR III, 258 (Art. 5 (2)): ‘Except where justified on historical grounds or imposed by the peculiar geography of the coast concerned, the length of the straight baseline provided for in paragraph 1 shall not exceed fifteen miles […].’ The text was based on a UK proposal (UK: Revised Proposal (Article 5) (note 24)), the 15 NM limit was proposed by Sweden (First Committee UNCLOS I Summary Records of Meetings and Annexes (note 24), 157 (paras. 6 and 11)). 26 UNCLOS I, Plenary Meetings: Summary Records of Meetings and Annexes, UN Doc. A/CONF.13/39 (1958), OR II, 62.

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9–12

Part II. Territorial sea and contiguous zone

tion on the Territorial Sea and the Contiguous Zone (CTSCZ) as a codification of the straight baseline system. UNCLOS III added paragraph 2 and kept the other results of UNCLOS I with some drafting changes.

III. Elements 1. Employment of Straight Baselines 9

In the light of Art. 14, it is sometimes discussed whether Art. 7 is an ‘exception’ to the normal baseline (it certainly is in a formal sense as evidenced by Art. 5). The ICJ stated in the Qatar/Bahrain Case: ‘The Court observes that the 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 must be applied restrictively.’27

10

Art. 7 is in its structure similar to Art. 10. There is first a general description of the situation that allows the use of straight baselines. These similarities and the wording of the following paragraphs lead to the conclusion that Art. 7 (3)-(6) are further restrictions on the drawing of straight baselines. These can and need only be considered if the coast is of the general configuration described in Art. 7 (1). Unlike Art. 10 (2), Art. 7 lacks quantitative requirements.

11

a) ‘In localities where the coastline’. When seen in connection with the French text ‘[d]ans le re´gions’ the wording indicates that straight baselines may only be applied in certain places along the coast that meet the requirements of Art. 7 (1). The existence of such localities at one place along the coast does not justify the application of straight baselines elsewhere. The State may not opt to enclose its entire coast in a system of straight baselines when only isolated parts – localities – of the coast meet these requirements. The term ‘coastline’ refers to the low-water line along the mainland coast, not including islands. 28 ‘Fringe of islands’ is an alternative to a deeply indented coastline (in order to employ the straight baseline system), so any determination if the coastline is deeply indented and cut into should not be based on the presence of islands near the main coastline.

12

b) ‘is deeply indented and cut into’. Several attempts have been made to quantify the meaning of ‘deeply indented’.29 One of the most detailed has been undertaken by BERNHARDT, who proposed the following criteria: ‘(1) Within the particular locality being considered, baseline segments accounting for at least 70 % of the total length of the relevant baselines should each have at least a 6:10 ratio of coastal penetration to segment length; (2) A coastline must have at least three significant indentations in any given locality; (3) No individual straight baseline segment should exceed 48 nautical miles in length.’30 27 ICJ, Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment of 16 March 2001, ICJ Reports (2001), 40, 103 (para. 212); see also: Yoshifumi Tanaka, The International Law of the Sea (2nd edn. 2015), 51. 28 Reisman/Westerman (note 22), 78. 29 Robert D. Hodgson/Lewis M. Alexander, Towards an Objective Analysis of Special Circumstances: Bays, Rivers, Coastal and Oceanic Archipelagos and Atolls (1972), 23–44; Peter B. Beazley, Maritime Limits and Baselines: A Guide to Their Delineation (3rd edn. 1987), 12–16; Reisman/Westerman (note 22), 71–104; J. Ashley Roach/Robert W. Smith, United States Responses to Excessive Maritime Claims (2nd edn. 1996), 60–69; UN DOALOS, Baselines: An Examination of the Relevant Provisions of the United Nations Convention on the Law of the Seas (1989), 18–21; US Department of State: Bureau of Oceans and International Environmental and Scientific Affairs, Limits in the Seas No. 106: Developing Standard Guidelines for Evaluating Straight Baselines (1987), 5–32, available at: http://www.state.gov/documents/organization/59584.pdf. 30 US Department of State (note 29), 6. Apparently the text was reset for publication on the US State Departments website without regard for consistent pagination http://www.state.gov/documents/organization/

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The importance of the proposal lies in the identification of certain parameters to discern 13 coasts deeply indented and cut into and to give a suggestion for what the numerical limits on those should be. It seems reasonable to proceed in any analysis of straight baselines using the parameters proposed, as they serve to characterize the configuration of the coast. It seems doubtful that any textual analysis can support the numerical limits with certainty. Nevertheless, these limits can provide support in the evaluation of straight baseline systems: If a system meets the guidelines, it is very likely in compliance with international law. 31 aa) ‘deeply indented’. It can be deduced from Art. 10 (2) that indentation is a general term 14 describing all concave coastlines, even mere curvatures (as opposed to bays proper) of the coast. It would seem hard to argue that such mere curvatures could lead to a deeply indented coast. Consequently, a deep indentation should at least qualify as a juridical bay according to Art. 10 (2). According to BERNHARDT’S proposal, the minimum ratio of width to penetration for a bay is 2:1, therefore a deep indentation should exceed this ratio, resulting in his suggestion of a 10:6 ratio.32 However, Art. 10 does not describe a ratio of width to penetration but of width to area; juridical bays may have a ratio even shallower than 2:1. 33 Given these considerations, it is unclear whether ‘deeply indented’ is a relative term or if 15 there is an absolute minimum depth to the indentation. The 1989 UN Baseline Study defines ‘deeply indented’ using relative terms34 and has received some criticism for it.35 Art. 10 does not require a minimum area for a juridical bay, the indentation is qualified on the ratio of width and area alone. A consistent approach between the two closely related articles would therefore argue for a relative definition of ‘deeply indented’. However, at some point the influence of an indentation of a very small width on the outer limit of the territorial sea becomes negligible, as other salient points on the coastline define the outer limit (see Fig. 7.3); an essential part of the rationale for straight baselines is the simplification of a complicated coastline, so indentations that only have a small influence on the coastline should not be used to justify the drawing of straight baselines. bb) Number of Indentations. Arts. 10 and 7 may sometimes be applicable to the same 16 coastal formations. However, for each provision to have a unique meaning and function in the UNCLOS, there must be a specific set of cases left for each provision where the other does not apply. Consequently, it would not be in line with the Convention to enclose a single indentation of the coast on the basis of Art. 7, as this would leave Art. 10 devoid of any meaning. It seems also unreasonable to allow the drawing of straight baselines in localities where there are only three indentations that do not qualify as bays under Art. 10. This hypothetical example may demonstrate this point: State A and State B have a similar coast. In one locality, State A has three curvatures that do not amount to bays under Art. 10, while State B has only one. If State A were allowed to draw straight baselines, B would be disadvantaged for having a less indented coastline, a result contrary to the basic principle ‘the land dominates the sea’.36 As the ICJ ruled in the Fisheries Case, ‘it is the land which 59584.pdf as the text shows difference to the original version of on or two pages. This text uses the version as published on the State Department website in 2012. 31 Kai Tru ¨ mpler, Grenzen und Abgrenzungen des Ku¨stenmeeres (2007), 119. 32 US Department of State (note 29), 7. For further information on the term ‘indentation’ within the context of Art. 10, see Symmons on Art. 10 MN 7 et seq. 33 Monterey bay has an opening of 19.24 NM and a depth of 9.2 NM (Gayl S. Westerman, The Juridical Bay (1987), 88). 34 UN DOALOS (note 29), 21 (para. 40):‘The term “deeply indented” may be used in either an absolute or a relative sense. For example, in absolute terms a narrow indentation measuring four nautical miles in a relatively large land territory may not merit the description deep, but on an island eight miles wide an indentation of that length cuts across half the island.’ 35 Reisman/Westerman (note 22), 81: ‘There is neither textual nor legislative nor historical support for this view’. 36 ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Netherlands/Denmark), Judgment of 20 February 1969, ICJ Reports (1969), 3, 51 (para. 96); ICJ, Aegean Sea Continental Shelf (Greece v. Turkey),

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confers upon the coastal State a right to the waters off its coasts’ 37; one might add, ‘not the absence of it’. In general, it seems reasonable to apply Art. 7 as far as possible in a manner that does not leave the State with a smaller territorial sea if – hypothetically – portions of land were to be added to his coast. Thus, in a specific locality a straight baseline system should only be applied if it encloses several indentations of which at least some meet the requirements of Art. 10 (2). cc) ‘and cut into’. It is doubtful whether the wording ‘cut into’ has a separate meaning in Art. 7. The French text is missing a similar expression – referring to ‘profondes e´chancrures et indentations’ – so at most it can be argued that the use of the plural in the French text and the word ‘and’ in the English text emphasize the necessity for more than one indentation. 38 The difficulty in interpretation highlights that ‘deeply indented and cut into’ is first and foremost a textual description of the Norwegian coastline 39 and not an easily generalized concept. 18 Some studies have addressed the question of how much of the stretch of a coastline needs to be deeply indented to justify the use of the straight baseline system along this stretch. HODGSON/ALEXANDER conclude from analysis of the Norwegian Arctic coast that the ‘general nature of the coast may be determined by the character of approximately 60 % of the coast […]’ being indented and cut into.40 Building on this result, BERNHARDT suggests 70 % of the coast should consist of indentations.41 These conclusions are questionable. As BERNHARDT himself admits: 17

‘[g]iven the extraordinary nature of the Norwegian coastline – both the frequency of the fjords that penetrate deep into the land and the proliferation of offshore islands – one can assume that Article 4 of the Territorial Sea Convention was formulated with the expectation that less extreme coastlines could fulfill its criteria.’42

Therefore, it is not advisable to try to determine a coast’s indented nature by a mathematical comparison with the Norwegian Arctic coast. 19 This difficulty is exacerbated by a general problem in using the Norwegian example as a blueprint for the evaluation of straight baseline systems: fundamental aspects of the law of the sea have changed and it is likely that these changes would have led to a different ruling at least on some aspects of the case had they been accepted law in 1951. UNCLOS I and the UNCLOS III codified the result of the employment of the envelopes of arcs-of-circles method as the outer limit of the territorial sea, while the ICJ had dismissed the method as not mandatory under international law.43 In addition, UNCLOS III agreed on a 12 NM territorial sea. 20 It seems likely that the irregularity of the Norwegian coast was a necessary, if not in itself sufficient reason for the ICJ to resort to a ‘geometrical construction’. The straight baselines were used to give a ‘simpler form to the belt of territorial waters’. In other words, had the belt of territorial waters been of a simple form despite the irregular character of the coast, it would not have been necessary to resort to a system of straight baselines. 21 If a 12 NM territorial sea is delimited by using the arcs-of-circles method, at least parts of the coast of Norway will exhibit a fairly smooth outer limit of the territorial sea (see infra, Judgment of 19 December 1978, ICJ Reports (1978), 3, 36 (para. 86); Qatar/Bahrain Case (note 27), 97 (para 185). 37 Fisheries Case (note 7), 133. 38 Reisman/Westerman (note 22), 82. 39 Tullio Scovazzi, The Establishment of Straight Baseline Systems: The Rules and the Practice, in Davor Vidas/ Willy Østreng (eds.), Order for the Oceans at the Turn of the Century (1999), 445, 451–452. 40 Hodgson/Alexander (note 29), 29. 41 He argues that accepting that indentations may be significantly less deep that the Norwegian fjords, as proposed by his criterion for coastal penetration, justifies a higher percentage of indentations (US Department of State (note 29), 9–11). 42 Ibid., 7. 43 Fisheries Case (note 7), 129.

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Art. 7

Fig. 7.1). The outer limit of the territorial sea alone would probably not indicate that a deeply indented and cut into coast lies behind it. Simplification would no longer be necessary in the case of the Norwegian coast.

Fig. 7.1: Illustration of the outer limit of different maritime zones off the Norwegian coast. The 12 NM Contiguous Zone has a fairly regular outline, despite the coast being irregular. Note that while the 4 NM limit is based on points A-H, the 12 NM limit is based only on points A, B, E and H.44 Source: S. Whittemore Boggs, Delimitation of Seaward Areas under National Jurisdiction, AJIL 45 (1951), 240, 249 (Fig. 1). Reproduced with permission from � The American Society of International Law. Given these remarks, it seems problematic to rely too heavily on the specific Norwegian 22 geography for guidance in establishing whether a coast is indented in terms of Art. 7 (1), especially when the analysis results in seemingly very precise limits. The Norwegian example 44 S. Whittemore Boggs, Delimitation of Seaward Areas under National Jurisdiction, AJIL 45 (1951), 240, 246, original caption: ‘Seaward limit of the territorial sea and of any contiguous zones – On a portion of the northwest coast of Norway the technique of laying down the outer limit of the territorial sea is here illustrated. The Norwegian claim of a 4-mile limit is here used. Arcs of radius T = 4 nautical miles are described from all salient points on the coast (A, B, C, D, E, etc.), including outlying islands. The “envelope of the arcs of circles of 4-mile radius drawn from all points on the coast” constitutes the outer limit of the territorial sea, and is thus the line every point of which is exactly T miles from the nearest point on the shore. The minor “gain” in areas of exclusive jurisdiction frequently achieved by drawing a series of artificial straight lines as part of the “base line” is illustrated by the small area between the broken-line “4-mile fishing limit” (by Norwegian decree of July 12, 1935) and the envelope of 4-mile arcs. The technique of laying down the limit of any contiguous zone is seen to be the same as for the territorial sea. For purposes of illustration a contiguous zone 12 miles wide is here assumed, constituting the arcs A”, B”, E”, H”, etc. The wider the contiguous zone the fewer will be the number of salient points that actually determine its “envelope”; but all of these salient points will also be among those that determine the outer limit of the territorial sea.’

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23–25

Part II. Territorial sea and contiguous zone

can serve as useful guidance. If the changes in the law of the sea are taken into due consideration, it should not be used as a strict template. 23

c) ‘fringe of islands along the coast in its immediate vicinity’. This wording was proposed by the 1953 expert committee45 and made its way into CTSCZ via a UK proposal.46 The wording ‘fringe’ of islands (as opposed to the original ‘string’ of islands in the English translation of the expert’s report)47 indicates that the provision is not limited to chain-like formations, but also applicable to skjaergaard-like situations, where numerous small islands form a screen off the coast. The UN Baseline Study explicitly distinguishes between these two situations.48 BERNHARDT rejects the distinction in his careful analysis and proceeds to develop detailed criteria based on the analysis of the Norwegian example. He proposes that islands should mask at least 50 % of the coast in question.49 In the context of a ‘fringe of islands’, such an approach is even more questionable than in the analysis of other parts of Art. 7 (1), as the codification process has developed its own wording relatively independent of the ICJ Fisheries judgment. The UN Baseline Study and other authors do not recommend any specific percentages on the ‘masking’ of the coast by islands.

24

aa) ‘along the coast’. The fringe of islands has to be situated along the coast. It is not sufficient for islands to form a single cluster in front of the coast, 50 nor should they be ‘arranged like stepping-stones perpendicular to the coast’. 51 BERNHARDT proposes a maximum deviation of an island chain from the coast of 20 degrees, finding 45 degrees too large a deviation.52 He also points out that deviation in Norway’s case was always below fifteen degrees, except for one baseline.53 Besides the general difficulties in arriving at a result based on the Norwegian example outlined above, a strict requirement expressed in degrees may sometimes not be practicable, as the general direction of the coast is unclear and may be altered significantly by small changes made in the selection of salient points to determine its direction.54 Also, the ICJ and other authors did accept a deviation of 45 degrees in one baseline in Norway;55 this indicates that at least some exceptions should be possible, even if a strict rule was to be followed.

25

bb) ‘immediate vicinity’. The fringe of islands may not be situated at any distance from the coast. The UN Baseline Study is somewhat vague in expressing an absolute limit, but does refer to 24 NM as the generally accepted distance. 56 BERNHARDT proposes 48 NM,57 ROACH/ 45 ILC Addition to Second Report on the Territorial Sea (note 20), 78 (Annex, III): ‘chapelet d’ıˆles’ in the French original. 46 UK: Revised Proposal (Article 5) (note 24). 47 ILC Addition to Second Report on the Territorial Sea (note 20), 78. An English translation can be found in: Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 59–63. 48 UN DOALOS (note 29), 20 (paras. 44–45); similar: J. Victor Prescott, Straight Baselines, Theory and Practice, in: Robin R. Churchill/Edward D. Brown (eds.), The UN Convention on the Law of the Sea: Impact and Implementation: Proceedings, Law of the Sea Institute Nineteenth Annual Conference (1987), 288, 295–296. 49 US Department of State (note 29), 16–17. 50 Qatar/Bahrain Case (note 27), 103 (para 214): ‘Moreover, in the present case it is only possible to speak of a “cluster of islands” or an “island system” if Bahrain’s main islands are included in that concept. In such a situation, the 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 of the Sea, which is not true of Bahrain in this case.’ 51 UN DOALOS (note 29), 21 (para. 43); Reisman/Westerman (note 22), 88, US Department of State (note 28), 19. 52 US Department of State (note 29), 17–19 and Fig. 6 and 7. 53 Ibid., 20, citing Hodgson/Alexander (note 29), 37–38. 54 For the comparable difficulties in using the trace ´ paralle`le method, see supra. 55 Fisheries Case (note 7), 142–143; on the baseline at Vestfjord between point 45 and 46: Hodgson/Alexander (note 29), 37. They argue that the baseline is contrary to the ‘general direction criterion but continue: ‘However, the large-scale chart of the examination of the area shows that, except for a small range of choices, the line has to be drawn approximately as Norway did.’ 56 UN DOALOS (note 29), 20–21 (para. 46); see also: Prescott (note 48), 298–299. 57 US Department of State (note 29), 20–21, even arguing that a limit of 48 NM may be exceeded in special cases.

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SMITH describe a limit of 24 NM as the US position, as otherwise the interceding High Seas or EEZ would sever the close link to the land domain demanded by Art. 7 (3).58 REISMAN/ WESTERMAN argue for a 12 NM limit, referring to the special emphasis that the firm establishment grounded in the term ‘immediate’ puts on vicinity, and the general ‘depreciation’ in the value of islands in maritime boundary cases as seen since 1958. 59 However, if simplification of ‘the belt of territorial waters’ is one of the conditions for applying a regime of straight baselines, the distance from a chain of islands to the mainland and also between islands60 cannot be limited to 12 NM and indeed should probably be larger than 24 NM in at least some cases. As (Fig. 7.2) illustrates, it is unlikely that a territorial sea needing simplification by straight baselines, e. g. because of pockets of EEZ or High Seas, will be generated by islands 24 NM or less apart. Irregularities requiring such simplification, such as narrow stretches or pocket of high seas or EEZ can only be expected if the distance between the islands is more than twice the breadth of the territorial sea. A limit between 24 and 48 NM is likely to allow for the inclusion of formations that need straight baseline systems for simplification. cc) ‘appropriate points’. The straight baselines join appropriate basepoints. Basepoints 26 must be situated on the charted low-water line.61 It seems to be up to the discretion of the coastal State to determine which of the points on the baseline are ‘appropriate’ provided that all other conditions are met.

2. Selection of Basepoints on the Low-Water Line in the Case of a Highly Unstable Coastline While simplification is a major aspect of Art. 7 (1), Art. 7 (2) serves to generate a fictitious 27 stability for a coastline that is otherwise highly unstable. It gives legal stability to a rapidly changing low-water line. Once established, the straight baselines may be overtaken by the advancing coastline and eventually be situated landward of the actual coastline, thus the coastal State may in effect choose to not exercise sovereignty. 62 Some of the main ideas of Art. 7 (2) can be found in Provision 9 (2) of the Main Trends 28 Working Paper of 1974, which summarized negotiating results of the UNCLOS III: ‘In localities where no stable low-water line exists along the coast due to a continual process of alluvion and sedimentation […], baselines shall be drawn linking appropriate points on the sea adjacent to the coast not exceeding the 10 fathom line.’ 63

Art. 6 (1) of the Informal Single Negotiating Text (ISNT) changed the proposed sub- 29 merged line (twenty meters of depth in the French text)64 to straight baselines linked to the low-water line.65 Except for some drafting changes, the final wording of Art. 7 (2) appeared in the Revised Single Negotiating Text (RSNT) of 1976.66 58 Roach/Smith (note 29), 63 and 63 (footnote 20). It should be noted that Bernhardt’s study is part of an official US publication, Limits in the Sea, where also the 1st edition of US Responses was published (Limits in the Sea No. 112). The difference might be indicative of a change in the official US position in this question. 59 Reisman/Westerman (note 22), 89–90. 60 Similar limits are proposed here: Beazley (note 29), 14 (para. 9.7 (iv)); Roach/Smith (note 29), 64; US Department of State (note 29), 24. 61 UN DOALOS (note 29), 24 (para. 51); ILA Baseline Committee, Baselines under the International Law of the Sea, Sofia Conference (2012), 2 (footnote 9). For low-tide elevations, see infra, MN 37–38. 62 Most deltas extend ever further into the sea: Nordquist/Nandan/Rosenne (note 46), 101 (MN 7.9 (d)). 63 UNCLOS III, Statement of Activities of the Conference During its First and Second Sessions, UN Doc. A/ CONF.62/L.8/REV.1 (1974), OR III, 93, 110 (Provision 9). 64 Ibid., 127. 65 UNCLOS III, Informal Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/PART II (1975), OR IV, 152, 158 (Art. 6 (1)). 66 UNCLOS III, Revised Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/REV.1/PART II (1976), OR V, 151, 154 (Art. 6 (2)).

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30–33

Part II. Territorial sea and contiguous zone

a) ‘Where’. According to the UN Baseline Study, Art. 7 (2) is only applicable if the coast also meets the conditions of Art. 7 (1).67 The argument for this interpretation derives from the ISNT: Art. 7 (1) and Art. 7 (2) were originally contained in one paragraph, and the split in two with the ISNT did not sever this connection.68 This interpretation is not entirely convincing, since the original ISNT seems to indicate that the two situations are alternative to each other: ‘La` ou` la coˆte est profonde´ment e´chancre´e et de´coupe´e, […] la méthode des lignes de base droites reliant des points appropriés peut être employée […]. Là ou` la côte est extrêmement instable en raison de la présence d’un delta ou d’autres conditions naturelles, les points appropriés peuvent être choisis le long de la limite extrême de la laisse de basse mer […].’ 69

31

The wording implies a clear alternative. The Main Trends Working Paper also indicates the delta-situation as sufficient for the drawing of straight baselines with the English text stating: ‘1. In localities where the coastline […]. Where […].’70

Against this conclusion, it has been argued that the French phrase ‘les points approprie´s’ and the English equivalent ‘the appropriate points’ in the second sentence of the ISNT directly refer to the same phrase in the first sentence, indicating that only the points referred to in the first sentence may be used,71 and that consequently Art. 7 (2) is subject to Art. 7 (1).72 This is not a necessary conclusion. The reference ‘appropriate points’ might also indicate that such appropriate points exist where the coastline is highly unstable. The wording in UNCLOS III is at least ambiguous in this regard.73 32 The interpretation that Art. 7 (2) is in itself sufficient to justify the drawing of straight baselines also avoids some manifestly absurd results: If Art. 7 (1) were a precondition for the application of Art. 7 (2), only a deeply indented and highly unstable coast would benefit from the fictitious ‘steadification’ of the low-water line. As the low-water line is highly unstable, it might, at some point, change to a non-indented shape. In that case, the condition for the application of Art. 7 (2) would cease to be met, but the privilege of Art. 7 (2) covers only a regression of the coastline, not the disappearance of its conditions of application. 74 The result would be that an unfavourable change in a highly unstable coastline calls the applicability of the regulation in question that was designed to privilege just such a coastline: a case of Art. 32 (b) VCLT. The operating part of Art. 7 (2) is clearly ‘notwithstanding regression of the low-water line’, the purpose of paragraph 2 is to provide some legal security as to the low-water line in a highly unstable environment. This is as necessary for an indented coast as it is for a smooth coastline. 33

b) ‘presence of a delta and other natural conditions’. Art. 7 (2) is only applicable to deltas. A delta can be defined as a ‘tract of alluvial land enclosed and traversed by the diverging mouths of a river’.75 In addition (‘and’), Art. 7 (2) requires the cumulative presence of other circumstances that render the coastline highly unstable, e. g. monsoon or frequent storms (see below).76 However, the interpretation that ‘other natural conditions’ refers to a 67

UN DOALOS (note 29), 23 (para. 48); see also Reisman/Westerman (note 21), 101–102. UN DOALOS (note 29), 23 (footnote. 9). ISNT (note 65), 158 (Art. 6 (1)). 70 Ibid., 153. 71 J. Victor Prescott/Eric C. Bird, The Influence of Rising Sea Levels on Baselines from which National Maritime Claims are Measured and an Assessment of the Possibility of Applying Article 7 (2) of the 1982 Convention on the Law of the Sea to Offset any Retreat of the Baseline, in: Carl Grundy-Warr (ed.), International Boundaries and Boundary Conflict Resolution: Proceedings of the 1989 IBRU Conference (1990), 279, 291. 72 Tanaka (note 27), 53. 73 Churchill/Lowe (note 3), 37–38; for an independent reading of Art. 7 (2) see also: ILA Baseline Committee, Baselines under the International Law of the Sea, Washington Conference (2014), para. 62. 74 Also, it seems questionable if a regulation could alter the condition it is dependent upon. 75 UN DOALOS (note 29), 53–54. 76 Prescott (note 48), 303. 68 69

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Art. 7

cumulative requirement may be challenged. Most importantly, the Russian final text uses the word ‘or’.77 Hence it could be argued that the shift from ISNT, which used the words ‘or other natural condition’, to RSNT, which uses ‘and other natural conditions’, was an oversight or not intended to change the meaning.78 c) ‘the coastline is highly unstable’. The definition of ‘highly unstable’ is unclear. As 34 Art. 7 (2) is mainly the result of the initiative of one State – Bangladesh 79 – its local situation provides a good starting point for further analysis. It seems that Art. 7 (2) was intended for use at the Ganges/Brahmaputra delta. Tidal forces, monsoons and storms can rapidly create and destroy islands and coastal features.80 This indicates that Art. 7 (2) was probably not intended for any changing environment, especially since most coastlines constantly change. The application of Art. 7 (2) requires a coastline that undergoes drastic changes in a short period of time.81 Art. 7 (2) refers to the present coastline, the retroactive use of an historic coastline bases on the phrase ‘notwithstanding subsequent regression’ would be beyond reasonable interpretation.82 The application of Art. 7 (2) is subject to the implicit assumption that States will adjust their straight baselines if the coastline has shifted significantly and permanently landward or seaward.83 One of the few States that may have based the drawing of straight baselines on Art. 7 (2) is 35 Egypt in the Nile delta. In response, the US submitted a note of protest, arguing the coastline is not deeply indented and cut into.84 While this argument is not entirely convincing (see supra, MN 30–32), the drawing of straight baselines may be questioned because it is uncertain whether the Nile delta qualifies as highly unstable. 85 It must be noted that the interpretation of ‘highly unstable’ and of ‘delta and other natural 36 conditions’ proposed here would render Art. 7 (2) almost useless as a tool for situations of sea-level rise.86 If Art. 7 (2) is seriously considered for such uses, it would seem that either a special interpretation for the specific situation of sea-level rise needs to be found, or efforts would result in an extremely permissive general interpretation.

77 For further analysis and some State practice, see Sally MacDonald/J. Victor Prescott, Baselines Along Unstable Coasts: An Interpretation of Article 7 (2), Ocean Yearbook 8 (1989), 70, 79–80. 78 Ibid.; leaning towards an alternative interpretation of ‘and’, see also Churchill/Lowe (note 3), 38; strictly for a cumulative interpretation, see UN DOALOS (note 29), 24 (para. 48). 79 Art. 7 (2) originated with a proposal from Bangladesh, that was taken up in the Main Trends Working Paper (Prescott/Bird (note 71), 288–291 in particular 288: ‘This [Art. 7 (2)] is one of at least four provisions in the 1982 Convention to meet the needs of one country which made strong representations on the point. In this case the country was Bangladesh, […].’; Nordquist/Nandan/Rosenne (note 47), 99–101 (MN 7.6.–7.7. and 7.9. (c).). In 1974, Bangladesh drew straight baselines with 8 basepoints in the sea, roughly following the 10-fathom line, with a total length of 221 NM (Notification No. LT – I/3/74 of the Ministry of Foreign Affairs, Dacca, 13 April 1974, reproduced in: UN DOALOS, Baselines: National Legislation with Illustrative Maps (1989), 62; Prescott/Bird (note 71), 288). This is clearly not in conformity with Art. 7. On acceding to UNCLOS, Bangladesh announced a comprehensive review of its domestic laws (Declaration of Bangladesh, 27 June 2001, LOSB 46 (2001), 14, 15). 80 UN DOALOS (note 29), 23 (para 50). 81 For example, the German Wadden Sea shows a constantly changing low water line, while the changes can be drastic, e. g. through severe storm surges, these drastic changes do not occur on a regular basis. 82 Chris Carleton/Clive Schofield, Developments in the Technical Determination of Maritime Space: Charts, Datums, Baselines, Maritime Zones and Limits, IBRU Maritime Briefing 3(3) (2001), 38–39. 83 UN DOALOS (note 29), 23 (para 50). Different opinion: Prescott (note 48), 303 who seems to argue that the baseline cannot be adjusted should the low-water line shift seaward. 84 American Embassy Cairo Note, 13 June 1991, State Department Telegram 188615, 8 August 1991; Roach/ Smith (note 28), 85–86; US Department of State (note 29), 9. 85 Churchill/Lowe (note 3), 38, point out that the Nile Delta recedes up to 40 m a year, which seems significantly lower than regular changes in the Ganges delta; see also Prescott (note 48), 305–306; different opinion by Nordquist/Nandan/Rosenne (note 46), 101 (MN 7.9 (c)), who argue that Art. 7 (2) is applicable in Egypt and also in Myanmar, Nigeria and Vietnam; cf. also G. Orlova/V. Zenkovich, Erosion of the Shores of the Nile Delta, Geoforum 5 (1974), 68–72 and Sally/Prescott (note 78), who – based on rates of change observed around the world – seem to argue that 10 m a year can be accepted as ‘highly unstable’. 86 For further information, see Tru ¨ mpler on Art. 5 MN 36–40.

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37–40

Part II. Territorial sea and contiguous zone

3. No Departure from the General Direction of the Coast and the Linkage Requirement 37

The ‘general direction’ criterion should work as an important corrective against excessive baseline claims; however, as with the whole of Art. 7, it lacks geometric precision. Straight baselines can only be drawn in the situation of Art. 7 (1) or 7 (2); only then can they be tested for compliance with the general direction criterion. It is not sufficient for straight baselines to follow the general direction of the coast only; in this case, they will still be invalid under international law if Art. 7 (1) or (2) is not met.87

38

a) ‘must not depart to any appreciable extent from the general direction of the coast’. It is problematic to ascertain the general direction of any coast. By choosing the scale of the chart, it is possible to make almost all baselines look like they are either following the coastline or significantly departing from it.88 There have been several proposals to give the Convention’s language more precision, in particular by trying to determine the general direction of the coast using reference lines connecting points along the coast. 89 Once the general direction of the coast is ascertained, the ‘appreciable extent’ needs to be determined. Mostly based on analysis of the Norwegian coastline, fifteen degrees 90 or twenty degrees91 have been proposed as acceptable. While it would be desirable to give geometrical precision to Art. 7 (3), it seems questionable whether that can be achieved relying on the Norwegian precedent. The ICJ specifically stated, in responding to a challenge of a particular baseline in Norway: ‘The base-line has been challenged on the ground that it does not respect the general direction of the coast. It should be observed that, however justified the rule in question may be, it is devoid of any mathematical precision.’92

39

REISMAN/WESTERMAN propose to compare the straight baselines directly with the coastline, with the option to construct a simplified baseline using the arcs-of-circles method with the breadth of the territorial sea as radius.93 This is in effect comparing the limit of the territorial sea before the drawing of straight baselines with the direction of the straight baselines chosen. As the comparison is based on the territorial sea limit and not on reference lines whose position and length are to some extent arbitrary, this approach is the most convincing.

40

b) ‘the sea areas lying within the lines must be sufficiently closely linked’. The wording originates in the ICJ Fisheries Case.94 While the actual meaning is vague, it is clear that it is an additional, necessary requirement. The ICJ does not see a conceptual difference between the connection required for straight baselines and the connection required for bays, but stated that this idea should ‘be liberally applied in the case of a coast, the geographical configuration of which is as unusual as that of Norway.’95 Apparently, Art. 7 (3) does not require the same strong connection as ‘land-locked waters’ in Art. 10 (2). But, in contrast to Art. 10 (2), Art. 7 (3) does not provide any precise criteria to determine whether a link is sufficient. That leaves in doubt even the nature of the link: REISMAN/WESTERMAN argue that 87 Reisman/Westerman (note 22), 121–122, give the Australian baseline system around Cape York as an example. 88 Fisheries Case (note 7), 141–142, where the ICJ notes this difficulty for the Norwegian coast. 89 US Department of State (note 29), 28–29 proposes a maximum length of 60 NM for such a line; Beazley (note 28), 14 (para. 9.7 (vi)) seems to argue for a length of around 45 NM. 90 Hodgson/Alexander (note 29), 37. 91 US Department of State (note 29), 30; Roach/Smith (note 29), 64 (footnote 23) seem to agree with the use of reference lines but do not propose a fixed deviation in degrees. 92 Fisheries Case (note 7), 141–142, in reference to the baseline drawn between point 20 and 21 in the Lopphavet basin. 93 Reisman/Westerman (note 22), 97. 94 Fisheries Case (note 7), 133. 95 Ibid., 133.

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the ‘claimant should establish that there is a strong historic interrelationship between the waters and the land […]’.96 Other authors view the link in geographical terms.97 This is the more convincing approach: The nature of the link is the same as in Art. 10 and, at least from the CTSCZ onwards, the determination of a juridical bay is independent of historic rights, 98 and is a purely geographical determination.99 Unfortunately, even if one decides on a geographical test to establish the link, general criteria for the test are still elusive. 100 In the case of a deeply indented and cut into coast, a sufficient link can probably be assumed if most of the indentations qualify as juridical bays in their own right. In the case of fringing islands, BEAZLEY views the presence of the islands that determine the straight baselines in the original belt of territorial waters as indication of a sufficient link. 101

4. Drawing Straight Baselines to Low-Tide Elevations The Norwegian system of straight baselines included low-tide elevations without any 41 structures.102 While Art. 4 (3) CTSCZ, prohibited the drawing of straight baselines using low-tide elevations unless lighthouses are built on them,103 the UNCLOS added the last halfsentence. In the preparatory work for the CTSCZ the ILC proposed to completely ban the use of low-tide elevations, but in an unsuccessful effort to gain Norwegian support for the CTSCZ, the lighthouse clause was added.104 Following a proposal from Norway, the reference to ‘general international recognition’ was inserted into the UNCLOS.105 With a view to the Norwegian example that received explicit recognition by the ICJ, claims to general international recognition should meet a high standard.106 Except for Norway, it would be hard to identify a country that could meet this standard without any controversy. Otherwise, lighthouses or similar installations need to be built on low-tide elevations. ‘Similar installations’ refers to all structures used for navigation which are above water at high tide, such as beacons, foghorns, radar reflectors, and the like 107; similar structures that are clearly marked – even if not built for the purpose of navigation – may qualify, such as wind turbines. There is an apparent contradiction between Art. 7 (3), which excludes the use of low-tide elevations for the drawing of straight baselines, and Art. 13 (1), which permits the use of some low-tide elevations for the purpose of drawing the normal baseline. This is likely the result of the 96

Reisman/Westerman (note 22), 99–100; agreeing Roach/Smith (note 29), 65–66 (footnote 25). ICJ Pleadings I (note 1), 232–279 and ICJ, Pleadings, Oral Arguments, Documents: Fisheries Case (United Kingdom v. Norway), vol. III, 35–58; cf. also comment by Sweden to the ILC on the similar UNCLOS I provision, ILC, Report of the International Law Commission, UN Doc. A/2934 (1955), reproduced in: ILC Yearbook (1955), vol. II, 19, 54. 98 Art. 7 (6) CTSC; Art. 10 (6) UNCLOS. 99 See also Symmons on Art. 10 MN 7–13. 100 According to UN DOALOS (note 29), 25 (para. 57) it has not proved possible to develop a mathematical test to justify the application of this rule. 101 Beazley (note 29), 14 (para 9.7 (iii)); critical United States Department of State (note 29), 22–23. However, especially in situations that result in a complex limit of the territorial sea, some islands will be situated beyond that belt. A case by case evaluation might be the only way forward in such a situation. 102 Fisheries Case (note 7), 140; ICJ, Pleadings, Oral Arguments, Documents: Fisheries Case (United Kingdom v. Norway), vol. IV, 613–614; Beazley (note 29), 14 (para. 9.8). 103 Cf. PCA, Award on Territorial Sovereignty and Scope of the Dispute (Eritrea v. Yemen), Award of 9 October 1998, ILM (2001), 900, 1007 (para. 145). 104 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, ICLQ 8 (1959), 73, 86 (footnote 34). 105 Robert D. Hodgson/Robert W. Smith, The Informal Single Negotiating Text (Committee II): A Geographical Perspective, ODIL 3 (1976), 225, 239; also, the lack of a similar exception in Art. 47 (4) indicates that the reference to international recognition is motivated by a desire to accommodate the Norwegian situation. 106 Reisman/Westerman (note 22), 93–94, argue for a test similar to the rules for occupation. 107 John R. V Prescott, The Maritime Political Boundaries of the World (1985), 71–72; UN DOALOS (note 29), 25 (para. 52). The UN study seems to assume that structures similar in appearance to lighthouses can also serve as basepoints. However, the reasonable justification for privileging lighthouses is that they are above high water at all times, and that they are clearly marked on navigational charts. Structures which are similar in function will meet both of these criteria, while structures similar in appearance are unlikely to be marked on charts. 97

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apprehension that low-tide elevations used for straight baselines might exert a more than local influence on the territorial sea.108 42 Whether basepoints in the sea may be allowed under certain circumstances is subject of debate. However, if low-tide elevations that are visible at least some of the time may not be basepoints, a fortiori it seems clear that mere points in the sea are not allowable. Nevertheless, their use is discussed for a certain case: A baseline is drawn between two eligible basepoints, but situated in two different States, crossing the territorial sea boundary, the intersection of the baseline and the boundary; would be located in the sea and serve as a basepoint.109 Following the ICJ’s logic that the straight baselines are a simpler representation of the coastline, this use of basepoints in the sea by coastal States 110 seems a natural consequence. On the other hand, the basepoint in question is by definition either the first or last point used by the State for the system of straight baselines that intersect the territorial sea boundary. Also, according to the wording of Art. 7, the delimitation is done by the coastal State, i. e. by one State. Moreover, the functional aspect of basepoints has to be considered: Just as with low-tide elevations during high tide, it is impossible for mariners to determine the exact position of the territorial sea if it begins at an unmarked point in the sea. While the lines eventually end at an eligible basepoint, this still leaves uncertainty for the mariner regarding the extent of the territorial sea of the states involved. 111 It is not convincing to allow more flexibility for the starting or ending basepoint of the system than for any other point.112 At the same time, the text does not justify any special requirements for the start or the end point.113

108

Fitzmaurice (note 104), 73, 87. Arguing in favour: Wolfgang Graf Vitzthum/Stefan Talmon, Alles fließt: Kulturgu¨terschutz und innere Gewa¨sser im neuen Seerecht (1998), 83; Beazley (note 29), 15–16 (paras. 9.12–9.13), who would also accept the unilateral use of basepoints outside the State’s territorial sea to draw a straight baseline, stating: ‘Adjacent States may or may not use the same set of features to control the line at the boundary’; Peter B. Beazley, Territorial Sea Baselines, International Hydrographic Review 48 (1971), 143, 147 seems to argue against the use of such a line by only one State. Against: ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12, 15 (Commentary to Art. 5); UN DOALOS (note 29), 24 (para. 51), requiring that ‘the system must start and finish on or above the low-water line’. 110 Denmark: Ordinance No. 437 Governing the Delimitation of the Territorial Sea, 19 April 1978; Germany: Communique´ No. 1184, 28 April 1970, both reproduced in: UN DOALOS Baselines Legislation (note 79), 122 et seq. and 176 et seq. See also: Graf Vitzthum/Talmon (note 109), 83; Finland: Decree on the of the Application on the Act of Delimitation of the Territorial Waters of Finland No. 993, 31 July 1995, LOSB 29 (1995), 56; Sweden: Royal Notice No. 375 containing Regulations on the Measurement of the Territorial Waters of Sweden, reproduced in: UN DOALOS, National Legislation (note 79), 300; Cf. also: Tullio Scovazzi, Atlas of Straight Baselines (2nd ed. 1989), 157 and 57, Reisman/Westerman (note 22), 18; United States Department of State (note 29), 48, Straight Baselines: Finland: 4.; Art. 2 (Point 1) Agreement between Sweden and Finland concerning the Delimitation of the Continental Shelf in the Gulf of Bothnia, the Bothnian Sea, the Åland Sea, and the Northernmost Part of the Baltic Sea, 29 September 1972, UNTS 987, 396. Some States have drawn such a line to an eligible neighboring basepoint without consultation: Chile following an award from Court of Arbitration (Argentina v. Chile, ILM 1978 [Vol. 17], p. 632), though the drawing of the baseline was not part of the award (cf. Reisman/Westerman (note 22), 181). Argentina and Chile mutually accepted their straight baselines in 1984 (Eduardo Jime´nez de Are´chaga, Argentina-Chile Report 3-1, in: Jonathan I. Charney (ed.), International Maritime Boundaries, vol. I (1993), 719, 723); Art. 11 Argentine-Chile Treaty of Peace and Friendship, 29 November 1984, UNTS 1399, 103. For the case of Iran, see UN DOALOS Baselines Legislation (note 79), 194–19; cf. Reisman/ Westerman (note 22), 181–183. 111 Though with today’s navigational aids and electronic nautical charts, this may be less of a practical issue than in the 1980s, at the time of drafting. 112 It might be argued that two States together should be able to exercise their sovereignty to no lesser extent than if the coast belonged to one State alone. This argument is unconvincing since it does not take into consideration the reality of a territorial sea boundary that bisects the area in question. 113 Reisman/Westerman (note 22), 91, argue that ‘commencing and concluding basepoints are distinguished from the points which depart from the coastline’, and that they should be located on the low-water line, though it is unclear if they are referring to the low-water line on the mainland. 109

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5. Impact of Economic Interests on the Drawing of Straight Baselines Art. 7 (5) is an almost verbatim quote from the ICJ Fisheries Case.114 It should be noted 43 that, even though the wording is clear in this respect, Art. 7 (5) does not provide justification for the drawing of straight baselines in itself; it may only lead to adjustment of baselines in a particular locality if Art. 7 (1) can be applied.115 To make it clear: Economic interests alone cannot justify the drawing of straight baselines.116 Art. 7 (5), like Art. 7 (3), addresses the question of how straight baselines are to be drawn. The relationship of Arts. 7 (3) and 7 (5) can be derived directly from the wording: baselines have to conform to Art. 7 (3), but particular baselines, i. e. very few individual baselines, may be adjusted when economic interests in accordance with Art. 7 (5) can be found in the region concerned. In the Norwegian case, just one baseline clearly did not follow the general direction of the coast. 117 a) ‘economic interests peculiar to the region concerned’. It is unclear what nature the 44 economic interests of the State under Art. 7 (5) may have: The introduction of the 200 NM EEZ gives the State exclusive access to practically all economically interesting goods the sea may offer in that zone. The use of straight baselines may result in an increase in the EEZ, but it seems doubtful that the reality and importance of this potential increase can be clearly evidenced by long usage. The use of Art. 7 (5) for the adjustment of baselines would be most plausible in cases where the State did not declare an EEZ. b) ‘evidenced by long usage’. In the ICJ Fisheries judgment, ‘evidenced by long usage’ 45 refers to Norwegian economic interests dating back centuries. 118 It is unconvincing to require a similarly long timeframe for every use of Art. 7 (5). That would not only exclude certain natural resources discovered in recent times, but also severely disadvantage States that cannot provide records dating back that far. Considering that Art. 7 (5) can probably only be applied in very singular circumstances, generalizations are difficult.

6. Proscription of Cutting-Off the Territorial Sea of Another State Art. 7 (6) requires unimpeded access to the high seas or any EEZ, highlighting its character 46 as a regulation that ultimately protects the freedom of navigation. 119 It is unclear if it is sufficient that any access remains or if a partial cut-off is already an infringement of Art. 7 (6).120 It would seem that any cut-off of a self-contained part of the territorial sea constitutes an impediment to the freedom of navigation, and hence a violation of Art. 7 (6). The same is true for the drawing of baselines that amounts to a functional cut-off, e. g. if a deep waterway necessary to reach a self-contained part of the territorial sea would be included in the new 114 Fisheries Case (note 7), 133 ‘Finally, there is one consideration not to be overlooked, the scope of which extends beyond purely geographical factors: that of certain economic interests peculiar to a region, the reality and importance or which are clearly evidenced by a long usage’. 115 Beazley (note 29), 15 (para. 9.9). 116 UN DOALOS (note 29), 25 (para. 58). This is also supported by the legislative history. While an intermediate report of the ILC had proposed using economic interests for the justification of straight baselines: ILC Report (note 97), 36; cf. also ILC, Summary Records of the Seventh Session: 2 May – 8 July 1955, ILC Yearbook (1955), vol. I, 201 (para. 2) and 205 (para. 42); the final report: ILC Law of the Sea Articles with Commentaries (note 109), 14 (Art. 5) read: ‘The application of the straight baseline system should be justified in principle on other grounds before purely local economic considerations could justify a particular way of drawing the lines.’ See also Fisheries Case (note 7), 133. 117 See also supra, MN 38–39. 118 UN DOALOS (note 29), 25 (para. 59); Reisman/Westerman (note 22), 101. 119 Cf. Nordquist/Nandan/Rosenne (note 47), 103 (para. 7.9 (h)). 120 Reisman/Westerman (note 22), 187, give as an example the drawing of a baseline of Venezuela across the Orinoko, cutting of parts of the territorial sea of Guyana. But as the authors themselves point out, the drawing of the baseline is based on disputed territory, so that it remains unclear if territorial sea of Guyana even exists landward of the straight baseline. It seems questionable to argue this case on the basis of Art. 7 (6).

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Part II. Territorial sea and contiguous zone

territorial sea of the delimiting state.121 The UN Baseline Study cites the case of the straight baselines of France around Monaco as a positive example,122 while PRESCOTT identifies a number of situations where baselines might be in violation of Art. 7 (6).123

7. Critique Of Straight Baselines Art. 7 is an anomaly in Part II. Most of the regulations in this Part date from the 1930 The Hague Codification Conference, and their guiding theme is to derive the outer limits of the territorial sea in an almost mathematical sense from the low-water line. Based on a map, two geographers should be able arrive at the same limit independently. The outcome is determined by the coastline. This can be seen in in Art. 10 in particular. 124 One cannot help but think that from a device that the ICJ deemed necessary to ensure the very livelihood of rural Norwegian fishermen, straight baselines have devolved into a convenient tool to bypass the structures of Part II and to maximize the appropriation of sea areas by coastal states. 125 48 Since the acceptance of straight baselines by the ICJ, the following conditions, which were of defining importance to the judgment, have changed: A twelve NM territorial sea is generally accepted, giving the coastal State sovereignty for a distance three times farther seaward than the ICJ accepted in the Fisheries judgment and through the effects of the envelopes of the arcs-of-circles method resulting in a more even outer limit at all coasts. The concept of an EEZ was accepted in the UNCLOS, giving the coastal State sovereign rights over vast areas of ocean, rendering the economic effect of straight baselines in coastal areas marginal (though in some cases considerable in absolute terms at the outer limit of the EEZ). Therefore, the only tenable rationale that remains for straight baselines is simplification, ‘giving a simpler form to the belt of territorial waters’. Even if this conclusion is not accepted in full, a coastline in need of simplification is quite clearly a necessary precondition before any other circumstances can be considered (notwithstanding application of Art. 7 (2)). 49 If a coast’s demand for simplification is a necessary condition for applying straight baselines, the drawing of straight baselines should be limited to cases where the outer limit of the territorial sea is complex without the use of straight baselines, i. e. contains pockets of highs seas or EEZ or has an otherwise irregular form. (see Fig. 7.2) If the ‘belt of territorial waters’ without the use of straight baselines has a form that cannot be distinguished from one found on a regular coast (cf. Fig. 7.3), straight baselines do not lead to simplification, hence their application is not ‘giving a simpler form’ to the territorial sea and the coastline is not deeply indented enough to require simplification. 47

121 Lewis M. Alexander, Baseline Delimitations and Maritime Boundaries, VJIL 23 (1983), 503, 516, seems to argue for a less strict interpretation of paragraph 6. 122 UN DOALOS (note 29), 25 (para. 60). 123 Prescott (note 48), 312. 124 Boggs (note 6), 541 ‘The American proposal was based on the assumption that, since we cannot choose our coasts but must take them as we find them, so the limit of the territorial sea, once the breadth of the belt is agreed upon, must be a line which is derived directly from the coast-line, in an automatic manner […].’ 125 See Tanaka (note 27), 51.

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Fig. 7.2: ‘The role of straight baselines in simplifying territorial sea boundaries.’ 126 Source: UN DOALOS (note 29), 20 (Fig. 12). Reprinted with the permission of United Nations.

Fig 7.3127 Source: Boggs (note 6), 546 (Fig. 3). Reproduced with permission from � The American Society of International Law. The coast is different, but the territorial sea boundary is the same, even though the coast in (b) is more indented, the territorial sea boundary is not more complicated. 126

UN DOALOS (note 29), 20 (Fig. 12). Original caption (Boggs (note 6), 546): Two dissimilar coasts the limits of whose territorial waters are identical in form. The points from which the envelopes of the arcs of circles are developed (A, B, C, etc.) have exactly the same relative positions on the two coasts. 127

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Part II. Territorial sea and contiguous zone

Whenever straight baselines are subject to legal scrutiny, their evaluation should start with an examination of the territorial sea boundary in the locality in question that would be the result of the use of the normal baseline, without the straight baselines proposed. If this boundary shows no irregularity, if it is indistinguishable from an outer limit generated by a regular coast, there should be a prima facie assumption for the use of the normal baseline in this locality. While State practice shows numerous examples of questionable straight baselines,128 the corresponding opinio iuris, detailing an explicitly permissive view, is lacking. There seems to be a trend to ignore baselines established by parties when delimiting maritime boundaries.129

Article 8 Internal waters 1. Except as provided in Part IV, waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State. 2. 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, a right of innocent passage as provided in this Convention shall exist in those waters. Bibliography: Kaare Bangert, Internal Waters, MPEPIL, available at: http://www.mpepil.com; Anne Bardin, Coastal State’s Jurisdiction over Foreign Vessels, Pace International Law Review 14 (2002), 27–76; Erwin Beckert/ ¨ ffentliches Seerecht (1991); Tao Cheng, Communist China and the Law of the Sea, AJIL 63 Gerhard Breuer, O (1969), 47–73; Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); C. John Colombos, The International Law of the Sea (6th edn. 1967); James Crawford, Brownlie’s Principles of International Law (8th edn. 2012); Vladimir D. Degan, Internal Waters, NYIL 17 (1986), 3–44; Louise de La Fayette, Access to Ports in International Law, IJMCL 11 (1996), 1–22; G. Gidel, Le Droit public de la mer: Tome II Les eaux inte´rieures (1932, reprinted 1981); John Hare, Port State Control: Strong Medicine to Cure a Sick Industry, Ga. J. Int’l & Comp. L. 26 (1996), 571–594; Rainer Lagoni, Der Hamburger Hafen und die international Handelsschifffahrt im Vo¨lkerrecht, AVR 26 (1988), 261–365; Alan V. Lowe, The Right of Entry into Maritime Ports in International Law, San DiegoLRev 14 (1976–1977), 597–622; Ted. L McDorman, Regional Port State Control Agreements: Some Issues of International Law, Ocean and Coastal L.J. 5 (2000), 207–225; Daniel P. O’Connell, The International Law of the Sea, vol. II (1984); Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Ingo von Mu¨ nch, Freedom of Navigation and the Trade Unions, Jahrbuch fu¨r Internationales Recht 19 (1976), 128–142; Jesse S. Reeves, The Codification of the Law of Territorial Waters, AJIL 24 (1930), 486–499; W. Michael Reisman/Gayl S. Westerman, Straight Baselines in International Maritime Boundary Delimitation (1992); Yoshifumi Tanaka, The International Law of the Sea (2nd edn. 2015); Wolfgang Graf Vitzthum, Maritimes Aquitorium und Anschlusszone, in: Wolfgang Graf Vitzthum (ed.), Handbuch des Seerechts (2006), 63–159 Documents: ILC, Comments by Governments on the Provisional Articles Concerning the Regime of the High Seas and the Draft Articles on the Regime of the Territorial Sea Adopted by the International Law Commission at Its Seventh Session in 1955, UN Doc. A/CN.4/99/ and ADD. 1–9 (1956), ILC Yearbook (1956), vol. II, 37–101; ILC, Reference Guide to the Articles Concerning the Law of the Sea (Prepared by the Secretariat), UN Doc. A/ C.6/L.378 (1956); ILC, Report of the International Law Commission, UN Doc. A/2934 (1955), reproduced in: ILC Yearbook (1955), vol. II, 19–32; ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4–12; ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45; Institut de Droit International Resolution, The Distinction Between the Re´gime of the Territorial Sea and the Re´gime of Internal Waters, 24 September 1957, Session of Amsterdam (1957); Memorandum of Understanding on Port State Control in the Asia-Pacific Region (2013); Memorandum of Understanding on Port State Control in the Caribbean Region (1996); Memorandum of Understanding on Port State Control in the Mediterranean Region (2006); Memorandum of Understanding on Port State Control for the Indian Ocean Region (2013); Memorandum of Understanding on Port State Control for West and Central 128

See generally Roach/Smith (note 29), passim. E. g. PCA, Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. India), Award of 7 July 2014, para. 250, available at: http://www.pca-cpa.org/showpage.asp?pag_id=1376; see also: Vladimir D. Degan, Internal Waters, NYIL 17 (1986), 3, 41. 129

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Art. 8

African Region (1999); Paris Memorandum of Understanding on Port State Control (2013); Riyadh Memorandum of Understanding on Port State Control (2004); UN, Laws and Regulations on the Regime of the Territorial Sea, UN Doc. ST/LEG/SER.B/6 (1957); UN DOALOS, Baselines: An Examination of the Relevant Provisions of the United Nations Convention on the Law of the Seas (1989) Cases: ICJ, Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v. Albania), Merits, Judgment of 9 April 1949, ICJ Reports (1949), 4; ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, Judgment of 27 June 1986, ICJ Reports (1986), 14; ITLOS, The ‘ARA Libertad’ Case (Argentina v. Ghana), Order of 15 December 2012, available at: https://www.itlos.org/ fileadmin/itlos/documents/cases/case_no.20/C20_Order_15.12.2012.corr.pdf; ITLOS, The M/V ‘Saiga’ (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment of 1 July 1999, ITLOS Reports (1999), 10; Saudi Arabian v. Arabian American Oil Company (ARAMCO), Award of 23 August 1958, ILR 27 (1963) 117, 212; The MV ‘Toledo’ ACT Shipping (PTE) Ltd v. Minister for the Marine, Ireland and the Attorney General [1995] 2 ILRM 30; The Eleanor (1809) 165 ER 1067 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘waters on the landward side’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘form part of the internal waters’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘Except as provided in Part IV’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Status of Internal Waters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Access to Internal Waters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Jurisdiction in Ports. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) Port State Control. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d) Criminal and Civil Jurisdiction of the Port State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . e) Ships in Distress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . f) Other Vessels in Internal Waters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Status of Internal Waters Subject to Article 8 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 9 9 12 13 14 17 21 22 26 28 30 31

I. Purpose and Function Art. 8 clarifies the status of waters on the landward side of the territorial sea boundary as 1 internal waters. It does not define this status in any detail, with the exception of Art. 8 (2). Art. 8 (2) subjects the waters landward of straight baselines to the regime of innocent passage (� Art. 17). Thus Art. 8 serves to preserve the freedom of navigation that existed in parts of the sea that were once territorial seas, high seas or exclusive economic zone (EEZ) but will become, through the drawing of straight baselines, internal waters.

II. Historical Background When the difficulties in the deliberations became apparent, the scope of discussion at the 2 Conference for the Codification of International Law in The Hague in 1930 was narrowed and the Conference did not address the question of internal waters, even though considerable effort was spent in the preparation of questions relating to the jurisdiction in ports. 1 One can find that the preparatory documents2 and the outcome clearly distinguished between the 1 Jesse S. Reeves, The Codification of the Law of Territorial Waters, AJIL 24 (1930), 486, 489: ‘The Commission changed the subject of general deliberations from territorial waters to that of territorial sea. There was consequently an elimination of all of those bases concerned with inland waters as distinguished from the waters of the marginal or territorial sea in a strict sense. All of these were matters to which much attention had been given by the Preparatory Committee.’ 2 See League of Nations, Committee of Experts for the Progressive Codification of International Law: Questionnaire No. 2: Territorial Waters, LN Doc. C.44.M.21.1926.V (1926), Annex I: Memorandum by M. Schu¨cking, reproduced in: Shabtai Rosenne (ed.), League of Nations Committee of Experts for the Progressive Codification of International Law, vol. II: Documents (1972), 55, 73: ‘Questions of special difficulty arise when we come to consider how far a vessel passing through territorial waters is subject to the civil and criminal

Tru¨mpler

85

Art. 8

3–4

Part II. Territorial sea and contiguous zone

territorial sea and the internal (‘inland waters’) of a coastal State. Indeed, this distinction led to the adoption of the term territorial sea: ‘There was some hesitation whether it would be better to use the term “territorial waters” or the term “territorial sea”. The use of the first term, which was employed by the Preparatory Committee, may be said to be more general and it is employed in several international conventions. There can, however, be no doubt that this term is likely to lead – and indeed has led – to confusion, owing to the fact that it is also used to indicate inland waters, or the sum total of inland waters and “territorial waters” in the restricted sense of this latter term. For these reasons, the expression “territorial sea” has been adopted.’ 3

3

In preparation for UNCLOS I, the International Law Commission (ILC) developed the definition that ‘waters within the baseline of the territorial sea are considered “internal waters”.’4 Draft Art. 26 was the first article in Part II, ‘High Seas’; it was located in Section I ‘General Regime’ under the heading ‘Definition of the high seas’.5 The drafting history,6 as well as the commentary to the final draft, indicate that this definition was adopted more out of the necessity to find a negative definition for the high seas, than out of desire to define ‘internal waters’ as a term in its own right: ‘The waters of the sea belong either to the high seas or to the territorial sea or to internal waters. In that part of these articles which deals with the territorial sea, the Commission has attempted to define the external limits of the territorial sea and has indicated the baselines from which it should be measured. Waters within these baselines are internal waters, over which, subject to the provisions of international law limiting the rights of the State – particularly as regards ports and international waterways – the State exercises its sovereignty in the same way as over the land.’ 7

The ILC did not concern itself with the status of internal waters, as was made clear in the commentary to draft Art. 8, concerning the delimitation of the territorial sea around ports: ‘No rules for ports have been included in this draft, which is exclusively concerned with the territorial sea and the high seas.’8 4 Discussion on draft Art. 26 (2) was referred from the Second Committee to the First Committee (Territorial Sea and Contiguous Zone).9 In addition, a number of proposals similar in wording were made to the First Committee to insert a clause similar to Art. 26. 10 jurisdiction of the riparian state. We feel that in considering this question is well to distinguish two cases – that of a vessel passing through foreign territorial waters and that of a vessel at a port in a foreign riparian State; for the legal position is essentially different. The port forms a portion of the inland waters, as is also perhaps implied by the definition given in the Ports Statute. […] The territorial sea, on the other hand, has an entirely different character’; see also ibid., 81; and League of Nations, Acts of the Conference for the Codification of International Law: Bases of Discussion for the Conference Drawn up by the Preparatory Committee, vol. II: Territorial Waters, LN Doc. C.74.M.39.1929.V (1929), 10, 101 (Basis of Discussion No. 27) and 102 (Basis of Discussion No. 28), reproduced in: AJIL 24, No. 1 Supp. (1930), 25, 45. 3 League of Nations, Acts of the Conference for the Codification of International Law: Meetings of the Committees, vol. III: Minutes of the Second Committee, LN Doc. C.351(b).M.145(b).1930.V (1930), Report adopted by the Committee, reproduced in: AJIL 24, No. 3 Suppl. (1930), 234, 240 (observations to draft Art. 1). 4 ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4, 7 (Art. 26 (2)). 5 Ibid., 7. 6 See ILC, Reference Guide to the Articles Concerning the Law of the Sea (Prepared by the Secretariat), UN Doc. A/C.6/L.378 (1956), 93, for a summary. 7 ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12, 23; see also the comment to the previous draft Art. 1 in 1955 that did not yet contain a rule comparable to draft Art. 26 (2): ILC, Report of the International Law Commission, UN Doc. A/2934 (1955), reproduced in: ILC Yearbook (1955), vol. II, 19, 21. However, the content of that paragraph was already present in the commentary: ‘In the part of the present report dealing with the territorial sea, the commission has attempted to define the external limits of the territorial sea and indicated the base lines from which it should be measured. Waters within these base lines constitute internal waters. Art. 1 and the articles contained in the chapter on the territorial sea thus furnish a definition of the high seas.’ 8 ILC Law of the Sea Articles with Commentaries (note 7), 16 (Art. 8). 9 See First Committee UNCLOS I, Letter from the Chairman of the Second Committee to the Chairman of the First Committee, UN Doc. A/CONF.13/C.1/L.143 (1958), OR III, 250. 10 First Committee UNCLOS I, Yugoslavia: Proposal (Art. 66), UN Doc. A/CONF.13/C.1/L.58 (1958), OR III, 226; First Committee UNCLOS I, Greece: Proposal (Arts. 1, 4, 5, 7 and 12), UN Doc. A/CONF.13/C.1/L.63/

86

Tru¨mpler

Internal waters

5–6

Art. 8

‘As regards a proposal by the representative of Turkey that the text of the new paragraph should contain a reference to internal seas, the Committee took note that this inclusion was unnecessary, there being unanimous agreement that internal seas were considered to be internal waters.’11 Art. 8 (2) can be traced back to the 1956 draft12 of the ILC, in which draft Art. 5 (3) on 5 straight baselines states: ‘Where the establishment of a straight baseline has the effect of enclosing as internal waters areas which previously had been considered as part of the territorial sea or of the high seas, a right of innocent passage, as defined in article 15, through those waters shall be recognized by the coastal State in all those cases where the waters have normally been used for international traffic.’ 13

The observations to that article were as follows: ‘The question arose whether in waters which become internal waters when the straight baseline system is applied the right of passage should not be granted in the same way as in the territorial sea. Stated in such general terms, this argument was not approved by the majority of the Commission. The Commission was, however, prepared to recognize that if a State wished to make a fresh delimitation of its territorial sea according to the straight baseline principle, thus including in its internal waters parts of the high seas or of the territorial sea that had previously been waters through which international traffic passed, other nations could not be deprived of the right of passage in those waters. Paragraph 3 of the article is designed to safeguard that right.’ 14

The reference to waters normally used for international traffic was deleted following a proposal by the United States.15 The Drafting Committee of the First Committee merged the new draft Art. 5A, containing 6 the definition, with the ILC draft Art. 5 (3) on innocent passage into a new article giving the following reason and summarizing the proceedings: ‘NEW ARTICLE 5 A The Committee had adopted the proposal of a number of delegations to add a provision: “Waters within the baseline of the territorial sea are considered as internal waters.” The Drafting Committee was favourably disposed toward the Yugoslav proposal (A/CONF.13/C.1/ L.58) to place this provision after article 5 [on straight baselines] and not in article 4 [on the normal baseline]. This created an element of overlap with paragraph 6 of article 5 [on innocent passage in newly created internal waters] as adopted by the First Committee, also relating to internal waters. The Drafting Committee therefore recommends the insertion after article 5 of the following new article, paragraph 1 of which incorporates the above-mentioned proposal, while paragraph 2 contains paragraph 6 of article 5 adopted by the First Committee: “INTERNAL WATERS” 1. Waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State. CORR.l, OR III, 229; First Committee UNCLOS I, China: Proposal (Art. 4), UN Doc. A/CONF.13/C.1/L.85, OR III, 234; First Committee UNCLOS I, Turkey: Proposal (Art. 4), UN Doc. A/CONF.13/C.1/L.94, OR III, 238. These proposals mainly differ with regard to where in the convention the referred part should be inserted. 11 UNCLOS I, Report of the First Committee, UN Doc. A/CONF.13/L.28/REV.l (1958), OR II, 115, 118 (para. 45). 12 The initiative came from the UK Government, which in its reply to the previous draft of the ILC ‘again dr[e]w the Commission’s attention to the problems relating to the status of the waters enclosed by base lines in particular the matter of the right of innocent passage through newly enclosed waters in front of the coastline which were previously territorial (or even high seas), and have now become “internal” or national. This enclosure may nevertheless not have altered their intrinsic character as waters affording access to the coast and its ports and estuaries.’: ILC, Comments by Governments on the Provisional Articles Concerning the Regime of the High Seas and the Draft Articles on the Regime of the Territorial Sea Adopted by the International Law Commission at Its Seventh Session in 1955, UN Doc. A/CN.4/99/ and ADD. 1–9 (1956), ILC Yearbook (1956), vol. II, 37, 80, 84. The UK representative in the ILC, Sir Gerald Fitzmaurice, then introduced a draft article that was adopted with some minor changes as 1956 draft Art. 5 (3): ILC, Summary Records of the Meetings of the 8th Session, ILC Yearbook (1956), vol. I, 185–190. 13 ILC Law of the Sea Articles (note 4), 4–5 (Art. 5). 14 ILC Law of the Sea Articles with Commentaries (note 7), 14–15 (Art. 5). 15 First Committee UNCLOS I, United States of America: Proposal (Article 5), UN Doc. A/CONF.13/C.1/L.86 (1958),OR III, 235, 236; for discussion, see First Committee UNCLOS I, Summary Records of Meetings and Annexes, UN Doc. A/CONF.13/39 (1958), OR III, 156–160.

Tru¨mpler

87

Art. 8

7–10

Part II. Territorial sea and contiguous zone

2. Where the establishment of a straight baseline in accordance with article 5 has the effect of enclosing as internal waters areas which previously had been considered as part of the territorial sea or of the high seas, a right of innocent passage, as provided in articles 15 to 25, shall exist in those waters.’16

This text later became Art. 5 of the Convention on the Territorial Sea and the Contiguous Zone. It seems clear from this history that at no point was it the intention of the conference to regulate internal waters. Rather, two paragraphs from two originally separate parts of the convention were combined in a new article, because they both related to internal waters. 7 At UNCLOS III, a proposal to delete paragraph 2 did not receive sufficient support. 17 The Informal Single Negotiating Text contained two significant changes to the text, reflecting the introduction of the EEZ and archipelagic States as new concepts in the UNCLOS: ‘Article 7 1. Except as provided in part VII, waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State. 2. Where the establishment of a straight baseline in accordance with article 6 has the effect of enclosing as internal waters areas which previously had been considered as part of the territorial sea, of the exclusive economic zone or of the high seas, a right of innocent passage as provided in these articles shall exist in those waters.’ [emphasis added by author] 18

8

In the Revised Single Negotiating Text, the reference to specific zones enclosed by baselines was replaced by a more generic reference to ‘areas which had not previously been considered as such’.19 The amended text became Art. 8 of the Informal Composite Negotiating Text, and with some minor drafting changes, eventually Art. 8 UNCLOS.

III. Elements 1. ‘waters on the landward side’ This includes waters on the landward side of all closing lines (Arts. 6, 9, 10) and straight baselines (Art. 7). Art. 12 does not allow the State to draw ‘baselines’, but merely includes the roadstead in the territorial sea. Roadsteads are not part of the internal waters. 20 In particular, internal waters include waters between the high-water and the low-water marks, ports and harbours, as well as estuaries.21 10 The UNCLOS does not specify how far the internal waters reach on the landward side in the case of estuaries or ports for seagoing vessels situated on rivers. Several conventions on the protection of the marine environment establish the landward limit of the internal waters at the freshwater limit.22 The freshwater limit seems a practicable solution; in the case of 9

16 First Committee UNCLOS I, Report by the Secretariat on the work of the Drafting Committee of the First Committee, UN Doc. A/CONF.13/C.1/L.167 (1958), OR III, 254, 255 (incorporating A/CONF.13/C.1/L.167/ CORR.l (1958)), text in brackets by author. 17 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 106 (MN 8.4). 18 UNCLOS III, Informal Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/PART II (1975), OR IV, 152, 157; see also Nordquist/Nandan/Rosenne (note 17), 106 (MN 8.4). 19 Nordquist/Nandan/Rosenne (note 17), 106–107 (MN 8.5), gives as the reason for this change that it was pointed out that the reference to EEZ would be inappropriate, as the zone was ‘a new concept to be established by the convention’. 20 Wolfgang Graf Vitzthum, Maritimes Aquitorium und Anschlusszone, in: Wolfgang Graf Vitzthum (ed.), Handbuch des Seerechts (2006), 63, 73 (MN 11); ILC Law of the Sea Articles with Commentaries (note 7), 16 (Art. 9) and ILC, Summary Records of the Sixth Session, ILC Yearbook (1954), vol. I, 89 (para. (34)). 21 Yoshifumi Tanaka, The International Law of the Sea (2nd edn. 2015), 78; Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 60. 22 See e. g. Art. 1 (b) of the Convention for the Protection of the Marine Environment of the North-East Atlantic: ‘“Internal waters” means the waters on the landward side of the baselines from which the breadth of the territorial sea is measured, extending in the case of watercourses up to the freshwater limit’; Arts. 2 (c) and 3 (b)

88

Tru¨mpler

Internal waters

11–14

Art. 8

ports situated far inland it may have to be supplemented by a functional approach, including fairways for seagoing vessels.23 Art. 8 (2) seems to assume that newly formed internal waters are clearly enclosed by the 11 coastline and straight baselines. That might not always be the case if the straight baselines are drawn from the territorial sea of one State to that of another, 24 leading to a situation where the internal waters of two States are directly adjacent. R EISMAN/WESTERMAN argue that the first and last basepoint of a system need to be located on the low-water line.25 The UN Baseline Study more explicitly states that internal waters need to be enclosed by a system of straight baselines.26 The Convention does not contain any specific rules on the delimitation of internal waters. The necessity might arise in particular when States share a system of straight baselines. The application of Art. 15 to these areas would seem in line with the interests of the States concerned, particularly when taking into consideration that the areas in question were likely territorial sea at some point in time.27

2. ‘form part of the internal waters’ Art. 8 does not regulate the status of internal waters. It does, however, provide that if the 12 application of the provisions of Art. 7 result in the generation of ‘new’ internal waters, these will be subject to the right of innocent passage. Conceptually, the status of internal waters is outside the scope of Part II; the status of internal waters must thus be inferred from other provisions of the UNCLOS or customary international law.

3. ‘Except as provided in Part IV’ In its archipelagic waters, the archipelagic State may only draw closing lines in accordance 13 with Arts. 9, 10 and 11 (Art. 50). It may not apply Art. 7 in its archipelagic waters. 28 Accordingly, there should be no situation in archipelagic waters where Art. 8 (2) applies; internal waters subject to the right on innocent passage should not exist in archipelagic waters.

4. Status of Internal Waters The coastal State has full sovereignty over its internal waters, 29 as stated by Art. 2:

14

‘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.’30 of the Protocol for the Protection of the Mediterranean Sea Against Pollution from Land-Based Sources, 17 May 1980, ILM 19 (1980), 869. 23 Graf Vitzthum (note 20), 84 (MN 35). 24 See Tru ¨ mpler on Art. 7 MN 42. 25 W. Michael Reisman/Gayl S. Westerman, Straight Baselines in International Maritime Boundary Delimitation (1992), 91. 26 UN DOALOS, Baselines: An Examination of the Relevant Provisions of the United Nations Convention on the Law of the Seas (1989), 24 (para. 51), while it seems to recognize in a footnote (note 11) the practice of baselines drawn from the basepoint of one State to the basepoint of another, citing Netherlands, Germany, Finland, Norway and Sweden as examples. 27 Kai Tru ¨ mpler, Grenzen und Abgrenzungen des Ku¨stenmeeres (2007), 138. 28 Nordquist/Nandan/Rosenne (note 17), 445 (MN 50.6(a)). On the possibility to apply Arts. 6 and 13, see Graf Vitzhum (note 20), 83 (MN 32); Tru¨mpler (note 27), 172 et seq.; see also Symmons on Art. 50 MN 5. 29 Graf Vitzhum (note 20), 87 (MN 42); Churchill/Lowe (note 21), 61; see also ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, Judgment of 27 June 1986, ICJ Reports (1986), 14, 111 (para. 212): ‘The basic legal concept of State sovereignty in customary international law, expressed in, inter alia, Article 2, paragraph 1, of the United Nations Charter, extends to the internal waters and territorial sea of every State and to the air space above its territory’. 30 Emphasis added.

Tru¨mpler

89

Art. 8

15–18

Part II. Territorial sea and contiguous zone

The language indicates that there is no difference in the sovereignty over land and internal waters; only in the realm beyond is the sovereignty subjected to the UNCLOS (see Art. 2 (3)). This underlines that the sovereignty over the territorial sea is in its nature and spatial extent derived from the coast – it is derivative in nature – while the sovereignty over the internal water is original. The sovereignty that the coastal State exercises over its territorial sea is justified by the possession of land that is situated next to the sea, i. e. the coastline; the sovereignty exercised over the internal waters is justified by the possession of the internal waters themselves. 31 15 States thus have the right to regulate and enforce within their internal waters as on their land territory. In particular, they are free to regulate the exploration and exploitation of all living and non-living resources, archaeological research32 and marine scientific research. 16 However, internal waters are situated between the State’s territorial sea and its terra firma; notably all sea ports form part of the State’s internal waters, so they are frequently entered by ships. These ships are then subject to the coastal State’s territorial sovereignty, as well as to the flag State’s jurisdiction, possibly leading to conflict. a) Access to Internal Waters. As stated above, the coastal State enjoys full sovereignty over its internal waters. Regarding internal waters other than open commercial ports, such as internal waters along the coast, closed ports and bays, it seems clear that the State may regulate at its discretion.33 With regard to ports in general, the International Court of Justice (ICJ) stated: ‘It is also by virtue of its sovereignty that the coastal State may regulate access to its ports.’34 The majority of writers seem to be in agreement with this conclusion. 35 A notable exception in earlier jurisprudence is the 1958 ARAMCO Award, which presumes a right of entry to ports under international law.36 A considerable number of writers disagree with this finding, and it does not seem to have had a decisive influence on later decisions, 37 such as that of the ICJ quoted above. 18 LAGONI distinguishes three distinct situations in the question of port access: The closure of all or some ports of the State to international traffic, measures against vessels from certain flag States, and measures against individual vessels. Regarding the first situation, there seems to be strong support for the concept that States may decide which, if any, of their ports are open for foreign vessels, though such regulations are the exception in modern times. 38 17

31

Graf Vitzhum (note 20), 87 (footnote 97). Ibid., 95 (MN 63–64); see also Arts. 149, 303 UNCLOS. 33 Vladimir D. Degan, Internal Waters, NYIL 17 (1986), 3, 12: ‘Subject only to the exception of ships in distress, the coastal State is free to refuse access to these parts of its internal waters to any foreign ships, or it can accept at will the ships of friendly nations and refuse others. Because this is a matter of exercising its sovereignty, the coastal State is allowed to discriminate against flags or types of foreign ships.’ 34 Nicaragua Case (note 29), 111 (para. 213). 35 Graf Vitzhum (note 20), 88 (MN 45); Tanaka (note 21), 80; see Alan V. Lowe, The Right of Entry into Maritime Ports in International Law, San DiegoLRev 14 (1976–1977), 597–622, for analysis of the ARAMCO Award, with extensive references to other authors in favor of and against a right of entry as well as elaboration on State practice; Louise de La Fayette, Access to Ports in International Law, IJMCL 11 (1996), 1, 22, with reference to writers arguing for a right to access ibid., 13; Rainer Lagoni, Der Hamburger Hafen und die international Handelsschifffahrt im Vo¨lkerrecht, AVR 26 (1988), 261, 267–275, distinguishing between the closure of ports to all shipping, closure of ports to vessels of a certain flag State and closure of ports to certain vessels; Kaare Bangert, Internal Waters, MPEPIL, paras. 19–24, available at: http://www.mpepil.com; Churchill/Lowe (note 21), 62; Institut de Droit International Resolution, The Distinction Between the Re´gime of the Territorial Sea and the Re´gime of Internal Waters, 24 September 1957, Session of Amsterdam (1957), para. II: ‘Subject to the rights of passage sanctioned either by usage or by treaty, a coastal State may deny access to its internal waters to foreign vessels except where they are in distress.’ (English translation: http://www.idi-iil.org/idiE/navig_chon1953.html/French original: AnnIDI 47-II (1957), 473 et seq.) Arguing for a right to entry into ports: C. John Colombos, The International Law of the Sea ¨ ffentliches Seerecht (1991), MN 364. (6th edn. 1967), 167; Erwin Beckert/Gerhard Breuer, O 36 Saudi Arabia v. Arabian American Oil Company (ARAMCO), Award of 23 August 1958, ILR 27 (1963) 117, 212: ‘According to a great principle of public international law, the ports of every State must be open to foreign merchant vessels and can only be closed when the vital interests of the State so require’. 37 See supra, note 35, in particular: Lowe (note 35); Tanaka (note 21), 81. 38 Churchill/Lowe (note 21), 62, with reference to State practice; Lagoni (note 35), 268; Lowe (note 35), 612, citing: Bulgarian Decree of 10 October 1951 (UN, Laws and Regulations on the Regime of the Territorial Sea, 32

90

Tru¨mpler

Internal waters

19–20

Art. 8

On the question as to whether States may close their ports selectively to foreign flagged 19 merchant vessels, there are a number of bilateral treaties, 39 as well as one multilateral convention: The Convention and Statute on the International Re´gime of Maritime Ports of 1923.40 It allows for the non-discriminatory access of the parties to the port of other parties. It must be noted that warships and fishing vessels are excluded and that even a nondiscriminatory right of entry for such vessels does not exist;41 by 1933 the Convention had 33 parties. States continued to accede to the convention, albeit at a slow rate. There have been 10 accessions and 10 successions – the latest by St. Vincent and the Grenadines in 2001 – and one denunciation (Thailand) since 1966.42 A number of the ratifications have been by so called ‘flags of convenience’. O’CONNELL argues that the ARAMCO Award should be understood as ‘corollary of a different rule of international law which forbids discrimination among foreign ships using ports.’43 O’CONNELL further argues that the Geneva Convention on the International Re´gime of Maritime Ports is a ‘standard source of practice’ and concludes: ‘If a country chooses to close its ports altogether that would seem to be an act of sovereignty; but if it opens them, it must open them at least to the parties to this convention, and arguably also to allcomers, on a non-discriminatory basis.’44 The view that this convention reflects customary law is contested by other writers.45 State practice seems to support the view that there is no right of non-discriminatory access in customary international law. 46 However, it must be noted that the closure of ports for ships under a certain flag usually occurs in a broader context and whether it is a case of retorsion, implying a lawful but unfriendly act, or a reprisal, implying an unlawful but justified act, depends on the individual circumstances. 47 There is agreement that access to ports is presumed for all merchant ships, but this is not a legal obligation.48 Regarding measures against individual or certain types of vessels, or vessels with certain 20 cargo, the law seems clearer. States have a wide discretion for setting conditions of entry into port (Art. 25 (2); Art. 38 (2); for environmental port entry-requirements Art. 211 (3) 49; for United Nations Legislative Series, vol. 6, UN Doc. ST/LEG/SER.B/6 (1957), 81); Art. IV Regulations Governing Foreign Ships on Bordering Rivers, 19 April 1966 (Chinese regulation from 1966, on that: Tao Cheng, Communist China and the Law of the Sea, AJIL 63 (1969), 47, 69); and Art. 5 of the Romanian Decree No. 39 of 28 January 1956 on the Port of Mangalia and a Designated Zone of Romanian Waters (UN, Laws and Regulations on the Regime of the Territorial Sea, United Nations Legislative Series, vol. 6, UN Doc. ST/LEG/ SER.B/6 (1957), 239. 39 See Graf Vitzhum (note 20), 88 (footnote 103); Tanaka (note 21), 81, with some examples of State practice; De La Fayette (note 35), 17, gives the number of treaties of ‘friendship, navigation and commerce’ as more than 100; Lagoni (note 35), 291 and 362–365, lists 50 bilateral treaties for the Federal Republic of Germany alone. 40 Convention and Statute on the International Re ´gime of Maritime Ports, Geneva, 9 December 1923, LNTS 58, 285, reproduced in: Alan V. Lowe/Stefan Talmon (eds.), Basic Documents on the Law of the Sea: The Legal Order of the Oceans(2009), 1. 41 De La Fayette (note 35), 4. 42 UN, Status of Multilateral Treaties Deposited with the Secretary-General, available at: https://treaties.un.org/ Pages/LONViewDetails.aspx?src=IND&id=558&chapter=30&lang=en#4. 43 Daniel P. O’Connell, The International Law of the Sea, vol. II (1984), 848, citing: Ingo von Mu ¨nch, Freedom of Navigation and the Trade Unions, Jahrbuch fu¨r Internationales Recht 19 (1976), 128, 135. 44 O’Connell (note 43), 848; undecided: Lagoni (note 35), 308–309. 45 Churchill/Lowe (note 21), 61–62; de La Fayette (note 35), 14; Lowe (note 35), 605–606. 46 Lagoni (note 35), 271, refers to a prohibition of entry by Turkey on ships under the flag of Cyprus in 1987 and as an example for banning ships from unrecognized flags, to the ban for ships under the USSR flag into France, in force until 1923. 47 Ibid., 270. The distinction between reprisal and retorsion of course also depends on the decision to accept or not accept a right of entry, see Lowe (note 35), 613. As States usually do not carefully explain whether they consider their action a reprisal or a retorsion, evaluation of State practice in this regard is difficult. 48 See G. Gidel, Le Droit public de la mer: Tome II Les eaux inte ´rieures (1932, reprinted 1981), 50: ‘La regle demeurant en vigueur dans le droit international general [est] celle de la simple presomption de l’ouverture des ports aux navires prives, mais non celle de l’obligation de l’ouverture des ports a ces navires.’; Degan (note 33), 19, referring to the 1898 Hague resolution of the Institute of International Law. 49 See EC Regulation No 417/2002 of 18 February 2002 on the Accelerated Phasing-in of Double Hull or Equivalent Design Requirements for Single Hull Oil Tankers and Repealing Council Regulation (EC) No 2978/94 (Part of the so called ERIKA I-Package), OJ 2002 L 64, 1.

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Part II. Territorial sea and contiguous zone

non-discrimination under Part XII see Art. 227).50 States have denied access to individual vessels in a number of cases, mostly if the cargo (such as toxic waste 51), or the vessel itself (e. g. nuclear propulsion52) was unwanted.53 21

b) Jurisdiction in Ports. Once the ship has entered the port, the question remains as to how far the coastal State may exercise its territorial jurisdiction on the ship vis-a`-vis the flag State’s jurisdiction. While there is no question that a ship is subject to the coastal State’s jurisdiction in ‘navigation and its sanitary, fiscal, technical and customs controls’ 54, to what extent the coastal State may exercise jurisdiction over internal matters of the ship is debated. It must be noted that, in practice, most states seem to limit the exercise of their jurisdiction 55 and act mostly to an extent harmonized with other harbor states in international agreements (see c) infra). The legal nature of this practice is not quite clear. Traditionally, the Anglo-American view on this question – that the ship is subject to full jurisdiction, which may not be exercised in internal matters of the ship out of comity56 – is contrasted with the French view – that the coastal State has no jurisdiction in internal matters.57 Recent practice in port State control58 indicates that coastal States are more willing than before to exercise their jurisdiction even with regard to the details of internal arrangements of the ship, if they act in accordance with other harbour states. While sanctions in these matters typically do not include criminal proceedings, this practice indicates that coastal States may on any issue assume their full territorial jurisdiction over a commercial vessel in its internal waters.

c) Port State Control. ‘[P]ort State jurisdiction is increasingly recognized as a remedy for the failure of flag States to exercise effective jurisdiction and control of their ships.’ 59 The most practically relevant exercise of port State jurisdiction with regard to ships in port is the port State control regime. Port State control usually refers to the preventive inspection of ships to ensure compliance with international standards and any actions resulting from this inspection, but may also be used to refer to investigations and criminal sanctions taken by the port State against ships in a more general way.60 The UNCLOS contains specific regulations in Arts. 216, 218 and 219 regarding port State control if an illegal discharge is suspected in the high seas, or if the lack of seaworthiness of a vessel threatens to damage its marine environment. No comparable articles exist in the UNCLOS regarding the protection of lives at sea or the employment conditions of seafarers.61 State practice regarding preventive port State control extends beyond UNCLOS regulations62 and is largely codified in regional ‘memoranda of understanding’. 23 Following the loss of the AMOCO CADIZ in 1977 and the December 1980 Regional European Conference on Maritime Safety,63 the Paris Memorandum of Understanding (Paris MoU) 22

50

Churchill/Lowe (note 21), 62; Graf Vitzthum (note 20), 90 (MN 50). Such as the KARIN B carrying toxic waste from Nigeria and denied access to France in 1988 and the PETERSBERG, carrying ‘slightly radioactive debris’ and denied access in Turkey in 1988, see Lagoni (note 35), 274; see also de la Fayette (note 35), 6, for more examples. 52 De la Fayette (note 35), 6, referring to New Zealand denying entry to a US nuclear ship; see also the special agreements concluded by Germany and the USA regarding access of their nuclear merchant vessels O TTO HAHN and SAVANNAH to various ports, ibid., 4. 53 For individual bans as part of the port State control regime see infra, MN 22 et seq. 54 Anne Bardin, Coastal State’s Jurisdiction over Foreign Vessels, Pace International Law Review 14 (2002), 27, 30. 55 Graf Vitzthum (note 20), 101 (MN 75). 56 Graf Vitzthum (note 20), 102 (MN 77). 57 Tanaka (note 21), 79; for details of the history of this distinction see Churchill/Lowe (note 21), 66–67. 58 See infra, MN 22 et seq. 59 James Crawford, Brownlie’s Principles of International Law (8th edn. 2012), 465. 60 Lagoni (note 35), 340 et seq.; for further information, see generally Ko ¨ nig on Art. 218. 61 Note that the right according Art. 94 (6) is conferred to any State, but limits the State exercising it to a flag State report. 62 Lagoni (note 35), 341. 63 For a detailed look at the history of port State control: John Hare, Port State Control: Strong Medicine to Cure a Sick Industry, Ga. J. Int’l & Comp. L. 26 (1996), 571, 574, 578. 51

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was signed as the first of these memoranda in 1982.64 The rationale of the agreement is clearly stated in its preamble: ‘Mindful that the principal responsibility for the effective application of standards laid down in international instruments rests upon the authorities of the State whose flag a ship is entitled to fly; Recognizing nevertheless that effective action by port States is required to prevent the operation of substandard ships; Recognizing also the need to avoid distorting competition between ports; Convinced of the necessity, for these purposes, of an improved and harmonized system of port State control and of strengthening co-operation and the exchange of information;’

Participating authorities agree to an annual inspection commitment of ships calling at their ports.65 The ships are inspected to ensure compliance with a list of international agreements (‘relevant instruments’66). The inspection under the Paris MoU starts with an ‘initial inspection’ (including inspection of documents and overall condition); if the inspector finds ‘clear grounds’ for a deficiency, a ‘more detailed inspection’ (an in depth examination) and under certain circumstances an ‘expanded inspection’ (covering core aspects of most relevant instruments) may be carried out.67 The Paris MoU issues non-public guidelines for the inspections. If a deficiency is found, authorities will ‘endeavor to secure’ its rectification; 68 ships may be detained if the deficiency is grave, causing significant financial loss to the operator. Under certain circumstances (e. g. repeated deficiencies), a ship may be temporarily refused access (‘banned’) from port entry in the entire MoU area. 69 The Paris MoU contains the following no-more-favourable-treatment-clause: 24 ‘Ships entitled to fly the flag of a State which is not a Party to a relevant instrument and thus not provided with certificates representing prima facie evidence of satisfactory conditions on board, or manned with crew members who do not hold valid STCW certificates, calling at a Paris MoU port of a member State which is Party to that relevant instrument, will receive a more detailed or, as appropriate, expanded inspection. In making such an inspection the Port State Control Officer will follow the same procedures as provided for ships to which the relevant instruments are applicable.’

In the light of the discussion about the extent of port State jurisdiction, this clause is particularly illuminating. The legal basis for the exercise of port State control on third-party ships can be neither the Paris MoU nor the relevant instrument, as this would be a violation of Art. 34 of the Vienna Convention on the Law of Treaties. 70 It must thus be the port State’s own territorial jurisdiction that provides the legal basis for the port State control of third

64 Paris Memorandum of Understanding on Port State Control (2013) (as amended). As of may 2015, the MOU had 25 member States, see https://www.parismou.org/about-us/memorandum. 65 S. 1.3 Paris MoU. This used to be a target of 25 % of ships calling at the ports of contracting authorities (Hare (note 63), 579), but this has been replaced in 2011 by a risk based formula (see Annexes 7, 8 and 11 to the Paris MoU), based on EC Directive 2009/16/EC of 23 April 2009, OJ 2009 L 131, 57). 66 Relevant instruments include, as of May 2015, the 1966 International Convention on Load Lines and its 1988 Protocol; the International Convention for the Safety of Life at Sea, 1974 (SOLAS 1974) (as amended) and its relevant protocols (1978, 1988); International Convention for the Prevention of Pollution from Ships, 1973, as modified by the 1978 Protocol relating thereto (MARPOL 73/78), and as further amended by the Protocol of 1997; the 1978 International Convention on Standards of Training, Certification and Watchkeeping for Seafarers; the Convention on the International Regulations for Preventing Collisions at Sea, 1972, available at: http:// www.imo.org/about/conventions/listofconventions/pages/colreg.aspx (COLREGs 72); the 1969 International Convention on Tonnage Measurement of Ships; the Merchant Shipping (Minimum Standards) Convention, 1976 (ILO Convention No. 147) and its 1996 Protocol; the Maritime Labour Convention, 2006; the 1969 International Convention on Civil Liability for Oil Pollution Damage as amended by its 1992 Protocol; the 2001 International Convention on the Control of Harmful Anti-Fouling Systems on Ships; the 2001 International Convention on Civil Liability for Bunker Oil Pollution Damage; the 2004 International Convention for the Control and Management of Ships’ Ballast Water and Sediments. 67 See Annex 9 of the Paris MOU for details. 68 S. 3.4 Paris MoU. 69 S. 4 Paris MoU. 70 Art. 34 VCLT(General Rule Regarding Third States) ‘A treaty does not create either obligations or rights for a third State without its consent.’

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Part II. Territorial sea and contiguous zone

parties.71 The Paris MoU lists the Maritime Labour Convention (MLC) and the International Labor Organization Convention No. 14772 as relevant instruments. According to the MLC, detailed inspection with regard to the MLC covers, among others, such areas as hours of work and rest, accommodation, on-board recreational facilities, food and catering, on-board medical care and payment of wages. All of these can be considered to be part of the internal economy of the ship. That port State control inspections are carried out on non-parties clearly indicates that port States can assume jurisdiction over any issue on board ships in their ports that they see fit. 25 Following the example of the Paris MoU, other regional agreements on port State control were adopted.73 In general they are substantively similar and follow the model of the Paris MoU74, though they may differ in details, e. g. the relevant instruments. 75 26

d) Criminal and Civil Jurisdiction of the Port State. According to Art. 27 (1), the coastal State may exercise criminal jurisdiction in the territorial sea even with regard to a ship in innocent passage 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 diplomatic agent or consular officer of the flag State; or (d) if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances.’

A fortiori, these rights must exist for the port State in internal waters. 76 Indeed, as Art. 27 (2) shows, criminal jurisdiction in internal waters is not limited to these offences, but can be wider. In principle, the State may exercise its jurisdiction with regard to all crimes committed aboard the vessel.77 However, in practice, States confine the exercise of their jurisdiction. State practice in this area is fairly uniform and cases seem to align with the situations under Art. 27 (1): States will assume criminal jurisdiction if the matter affects the peace and good order of the port State; this also includes cases of ‘intrinsic gravity’ (such as homicide) that warrant local intervention.78 States will also assume jurisdiction upon request of the ship or the flag State, or when a non-crew member is involved.79 27 The situation in the territorial sea is also a useful starting point for the evaluation of civil jurisdiction. According to Art. 28 (3), the coastal State has the right ‘in accordance with its laws, to levy execution against or to arrest, for the purpose of any civil proceedings, a foreign ship lying in the territorial sea, or passing through the territorial sea after leaving internal waters.’ It follows a fortiori that the port State has full civil jurisdiction in relation to 71 Lagoni (note 35), 342 (para. 67); see also Ted. L McDorman, Regional Port State Control Agreements: Some Issues of International Law, Ocean and Coastal L.J. 5 (2000), 207, 211–212. 72 Merchant Shipping (Minimum Standards) Convention, 1976 (ILO Convention No. 147), available at: http:// www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_INSTRUMENT_ID:312292. 73 McDorman (note 71), 208. Latin American Agreement on Port State Control (1992); Memorandum of Understanding on Port State Control in the Asia-Pacific Region (2013) (Tokyo MoU), the Memorandum of Understanding on Port State Control in the Caribbean Region (1996); Memorandum of Understanding on Port State Control in the Mediterranean Region (2006) (as amended); Memorandum of Understanding on Port State Control for the Indian Ocean Region (2013); ABUJA MoU: Memorandum of Understanding on Port State Control for West and Central African Region (1999). In 2004 the Riyadh Memorandum of Understanding on Port State Control (2004) was signed. 74 McDorman (note 71), 208. 75 See for example the list of the Persian Gulf, S. 2.1 Riyad MoU, that contains at the time of writing 8 relevant instruments, in comparison to the Paris MoU’s 17, notably not the MLC, but the 1976 Merchant Shipping (Minimum Standards) Convention (ILO Convention No. 147). 76 Degan (note 33), 24–25; somewhat less convincingly, Degan also argues that the duties of notification according to Art. 27 (3) also apply in the internal waters; that would seem to be an unintended extension of the applicability of the UNCLOS to internal waters. 77 Churchill/Lowe (note 21), 65. 78 Churchill/Lowe (note 21), 66–67; Tanaka (note 21), 80. 79 Churchill/Lowe (note 21), 67, with further examples of State practice; Tanaka (note 21), 80. See also Arts. 92 (1) and 97 (1).

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Art. 8

merchant vessels in its port.80 In principle, civil jurisdiction also extends to disputes involving the crew of the merchant vessel. However, port States may be reluctant to exercise their jurisdiction if matters are involved that relate to the relationship between the master and crew, crew and owner, or matters originating outside the port State’s jurisdiction. 81 However, in practice, these matters are often subject to specific treaties. 82 e) Ships in distress. Ships in distress have a customary right to entry into foreign ports. 83 28 Distress is to be interpreted narrowly and in this context refers only to situations in which human life is in danger.84 Recent State practice indicates the reluctance of States to allow a ship in distress to enter their ports if the ship itself or its cargo may pose a danger to the port State, in particular its environment.85 However, it is unclear whether that includes situations where the lives of persons on board are in immediate danger. If the underlying humanitarian argument86 for the right of entry of ships in distress is taken seriously, it would seem that the danger for the port State must be severe to deny entry.87 Once a ship is in port due to distress or force majeure the port State’s jurisdiction is 29 limited, as the vessel is not voluntarily under the sovereignty of the port State. 88 The ship will be immune from those laws it has breached due to force majeure, but it will be required to follow the laws it reasonably can, given its circumstances, such as health and safety regulations.89 f) Other vessels in internal waters. Except for cases of distress, States have the right to 30 regulate the access of warships (Art. 29) or other government ships operated for non-commercial purposes to their internal waters at their discretion. 90 Once a government ship is in port

80 Bardin (note 54), 30; Degan (note 33), 25–26; O’Connell (note 43), 859 et seq., see in particular the summary of American practice with reference to the case of the ESTER, ibid., 864; also instructive as a summary for both criminal and civil jurisdiction is the 1957 Amsterdam Resolution of the Institute of International Law: ‘IV. Judicial Competence. The coastal State may exercise its judicial competence over delictual acts committed on board a vessel during its sojourn in the internal waters of that State. In civil matters, if the seizure of the vessel has taken place in accordance with the laws of the coastal State and of international conventions, civil proceedings may be instituted against the owner of the vessel even if the vessel and its conduct have given no occasion for the proceedings. However, according to widely accepted practice, judicial competence is not exercised in penal matters with respect to acts committed on the vessel which are not of a kind to disturb public order. Nor, in general, is judicial competence exercised in matters of civil jurisdiction which relate to the internal order of the vessel.’ 81 O’Connell (note 43), 874 et seq., for the question of collision suits. 82 Churchill/Lowe (note 21), 68. 83 Ibid., 63; Tanaka (note 21), 83; Graf Vitzthum (note 20), 89; The Eleanor (1809) 165 ER 1067: ‘Real and irresistible distress must be at all times a sufficient passport for human beings under any such application of human laws.’ 84 Tanaka (note 21), 83 (para. 2.5 (a)), with reference to the The MV ‘Toledo’ ACT Shipping (PTE) Ltd v. Minister for the Marine, Ireland and the Attorney General [1995] 2 ILRM 30; Churchill/Lowe (note 21), 63; arguing for a right of entry in the case of danger for the ship: Lagoni (note 35), 311. 85 Tanaka (note 21), 83, with reference to the E RIKA and the PRESTIGE, among others, note also the case of the MSC FLAMINIA in 2012, that was denied entry in Portugal, Great Britain and France (Giftige Irrfahrt der brennenden “MSC Flaminia”, http://www.zeit.de/wissen/umwelt/2012-08/flaminia-havarie); see also Graf Vitzthum (note 20), 90, with details on ships with nuclear propulsion. 86 See also, ICJ, Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v. Albania), Merits, Judgment of 9 April 1949, ICJ Reports (1949), 4, 22; ITLOS, The M/V ‘Saiga’ (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment of 1 July 1999, ITLOS Reports (1999), 10, para. 155: ‘Considerations of humanity must apply in the law of the sea, as they do in other areas of international law.’ 87 Cf. Graf Vitzthum (note 29), 90; Lagoni (note 35), 312. 88 Churchill/Lowe (note 21), 68; see also Bardin (note 54), 31. 89 O’Connell (note 43), 857; Churchill/Lowe (note 21), 68; Lagoni (note 35), 312. See also Art. 218 (1) which begins ‘When a vessel is voluntarily within a port […]’, emphasis added. 90 Lowe (note 35) 11; Bardin (note 54), 33; Graf Vitzthum (note 20), 102 (MN 76); Degan (note 33), 9; for a detailed analysis regarding the different types of government vessels, incl. presidential yachts, troopships and so on, see ibid., 33–37.

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with the consent of the port State, it enjoys sovereign immunity (see Art. 32). 91 The port State may impose special regulations regarding privately owned pleasure or racing yachts and boats. 92

5. Status of Internal Waters Subject to Article 8 (2) 31

Internal waters subject to Art. 8 (2) are by definition internal waters in which a right of innocent passage applies. CRAWFORD describes the legal regime of the territorial sea such that ‘[t]he coastal state has all practical rights and duties inherent in sovereignty, whereas foreign vessels have privileges, in particular with the right of innocent passage’. 93 It must be noted that this description also applies to a large degree to internal waters under Art. 8 (2). The coastal State may not regulate access to those waters; consequently, a large number of the conclusions above are not applicable. As innocent passage is one of the defining aspects of the territorial sea regime it may be argued that these waters are more akin in status to the territorial sea than to the internal waters proper.94

Article 9 Mouths of rivers If a river flows 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. Bibliography: Lewis M. Alexander, Baseline Delimitations and Maritime Boundaries, VJIL 23 (1983), 503–536; Leo J. Bouchez, The Regime of Bays in International Law (1964); Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); Robert D. Hodgson/Lewis M. Alexander, Towards an Objective Analysis of Special Circumstances, Law of the Sea Institute Occasional Paper 13 (1972); Charles C. Hyde, International Law as Chiefly Interpreted and Applied by the US, vol. I (2nd edn. 1945); Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Daniel P. O’Connell, The International Law of the Sea, vol. I (1982); John V. R. Prescott, The Maritime Boundaries of the World (1985); Benjamin H. Read, Delimitation of the Territorial Sea at the Mouth of a River (1957); Michael W. Reed, The Development of International Maritime Boundary Principles through United States Practice, in: US Department of Commerce, Shore and Sea Boundaries, vol. III (2000); J. Ashley Roach/Robert Smith, United States Responses to Excessive Maritime Claims (2nd edn. 1996); Tullio Scovazzi/Giampiero Francalanci/Daniela Romano/Sergio Mongardini, Atlas of Straight Baselines (2nd edn. 1989); Tullio Scovazzi, Problems Relating to the Drawing of Baselines to Close Shared Maritime Waters, in: Clive R. Symmons (ed.), Selected Contemporary Issues in the Law of the Sea (2011), 15–30; Clive R. Symmons, L’echange de lettres de 1990 entre l’Iran et l’Iraq: un reglement definitif du differend et du conflit?, AFDI 36 (1990), 229–247; Clive 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’, IJMCL 24 (2009), 457–500; Gayl Westerman, The Juridical Bay (1987); Marjorie Whiteman (ed.), US Department of State: Digest of International Law, vol. IV (1965) Documents: American Law Institute, Restatement of the Law: Foreign Relations Law of the United States, No. 1 (1957); IHB, Manual on Technical Aspects of the United Nations Convention on the Law of the Sea – 1982 (4th edn. 2006); ILA, Report of the Committee on Baselines under the International Law of the Sea, Washington Conference (2014); ILC, Report on the Regime of the Territorial Sea by J. P. A. François, Special Rapporteur, UN Doc. A/CN.4/53 (1952), reproduced in: ILC Yearbook (1952), vol. II, 25–43; ILC, Additif au deuxieme rapport de M. J. P. A. Francois, rapporteur special, UN Doc. A/CN.4/61/ADD.1 (1953), reproduced in: ILC Yearbook 91 ITLOS, The ‘ARA Libertad’ Case (Argentina v. Ghana), Order of 15 December 2012, para. 95: ‘[…] in accordance with general international law, a warship enjoys immunity, including in internal waters[…]’, available at: https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.20/C20_Order_15.12.2012.corr.pdf; see also Tanaka (note 21), 80 (para. 2.3). Cf. also Art. 3 International Convention for the Unification of Certain Rules relating to the Immunity of State-owned Vessels, 1926, Degan (note 33), 31, sees Art. 3 (1) of that convention as declaratory of customary international law. 92 Degan (note 33), 9. For regulations regarding research vessels, see Art. 255. 93 Crawford (note 58), 264. 94 Cf. Graf Vitzthum (note 25), 92 (MN 52); Degan (note 33), 38: ‘Therefore, by means of Article 4 (2), [sic, the author clearly intends to refer to Article 5] the 1958 Convention on the Territorial Sea assimilated in all respects, save in name, these newly enclosed parts of internal waters to the territorial sea.’

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(1956), vol. II, 75–79; ILC, Report of the International Law Commission, UN Doc. A/2934 (1955), GAOR 10th Sess. Suppl. 9, reproduced in: ILC Yearbook (1955), vol. II, 19–62; ILC, Amendements propose´s par M. J. P. A. François, Rapporteur spe´cial, sur la base des observations des gouvernements au projet d’articles provisoires, adopte´ par la Commission du droit international a` sa sixie`me session, sur le re´gime de la mer, UN Doc. A/CN.4/ 93 (1955), reproduced in: ILC Yearbook (1955), vol II, 5–9; ILC, Summary Records of the Meetings of the 7th Session, ILC Yearbook (1955), vol I; ILC, Comments by Governments on the Provisional Articles Concerning the Re´gime of the High Seas and the Draft Articles on the Re´gime of the Territorial Sea Adopted by the International Law Commission at its Seventh Session in 1955, UN Doc. A/CN.4/99 (1956), reproduced in: ILC Yearbook (1956), vol. II, 37–67; ILC, Summary Records of the Meetings of the 8th Session, ILC Yearbook (1956), vol. I; League of Nations, Report of the Second Commission (Territorial Sea), LN Doc. C.230.M.117.1930.V. (1930.V.15.); US Department of State, Measurement of the U.S. Territorial Sea, Department of State Bulletin 1044 (1959); UN DOALOS, Baselines: An Examination of the Relevant Provisions of the Law of the Sea (1989) Cases: Georgia v. South Carolina, 497 U.S. 376 (1990); ICJ, Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Judgment of 12 November 1991, ICJ Reports (1991), 53; ICJ, Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment of 16 March 2001, ICJ Reports (2001), 40; ICJ, Case Concerning Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment of 8 October 2007, ICJ Reports (2007), 659; ICJ, Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment of 3 February 2009, ICJ Reports (2009), 61; Post Office v. Estuary Radio Ltd. [1968] 2 QB 740 (UK); Texas v. Louisiana, 406 U.S. 465 (1976) Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Does the Article Include Estuaries?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. No Prescribed Length. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Meaning of ‘Mouth of the River’ and ‘Banks’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Inclusion of Border Rivers?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. State Practice and International Jurisprudence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 6 6 8 9 11 14

I. Purpose and Function This provision, which is almost identical to Art. 13 Convention on the Territorial Sea and 1 the Contiguous Zone (CTSCZ),1 proceeds to refer to the second of the several enunciated geographical situations where a State may resort to the use of what may be broadly described as a straight baseline (as compared with the normal baseline in accordance with Art. 5 based on the ‘low-water line’)2 which applies particularly where waters penetrate into the land mass, as do rivers, bays, ports etc;3 so closing off internal waters under Art. 8 (1).4 As such, river-based lines constitute one example of what the International Court of Justice (ICJ) has dubbed generically as an ‘exception to the normal rules for the determination of baselines’. 5 In the instance of rivers, unlike in the terminology in the case of the ‘straight baselines’ sanctioned under Art. 7 or the ‘closing line’ in the case of bays under Art. 10, there is reference here simply to a ‘straight line’ being useable to close off rivers: though this difference in expression is without substantive importance, seemingly meaning a single straight line.6 In comparison to these two other geographical situations pursuant to Art. 7 1

Apart from the fact that now ‘low-water line’ is used instead of ‘low-tide line’. See further Tru¨mpler on Art. 5 MN 5–10. 3 See Gayl Westerman, The Juridical Bay (1987), 23; and Leo J. Bouchez, The Regime of Bays in International Law (1964), 20–21; see also Arts. 7, 10 (bays), and (by implication) 11 (ports). 4 See Tru ¨ mpler on Art. 8 MN 9–13. 5 ICJ, Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment of 16 March 2001, ICJ Reports (2001), 40, para. 212. 6 Though Michael W. Reed, The Development of International Maritime Boundary Principles through United States Practice, in: US Department of Commerce, Shore and Sea Boundaries, vol. III (2000), 314, when discussing the ‘straight line’ requirement, mentions that, e. g., in rare circumstances an island (or presumably also islands) may lie at the mouth of a river, in which case two-line segments or even more – as in the case of bays in Art. 10 (3) – might be applied in a similar way to the situation in a true delta region. 2

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and Art. 10, the internal waters enclosed landward of such river-enclosing baselines will not normally be significantly large, though they may, of course, enclose large amounts of fresh water down-river. Furthermore and correspondingly, in most instances the straight lines will not be lengthy (though see the precedent of the mouth of the Rio de la Plata between Argentina and Uruguay as noted below). 2 The provision seems not intended to cover all issues relating to river-based lines. Some such issues concern the rules relating to bays and relate to at least one other issue in the UNCLOS, namely Art. 7 (2) where there is ‘the presence of a delta and other natural conditions’ causing the coastline to be ‘highly unstable’: in this case, as seen, appropriate points may be chosen along the furthest seaward extent of the low-water line which will remain effective, despite regression of the low-water line until changed by the competent coastal State.7 Although this provision is contained in a river-related aspect of the expansive baseline scenario authorised under Art. 7, it implicitly excludes an Art. 9 type of a single straight baseline as such, envisaging, for example, an alternating mix of low-water mark baselines and straight baselines.8 Thus the abovementioned delta-based closing lines of Art. 7 envisage not only multiple straight baselines and basepoints being used at a deltaic river mouth, but also points which do not necessarily correspond to points on a river’s banks (as is here required in Art. 9).9 However, the general ambulatory intent of Art. 7 (2), as to recognising baseline changes on river bank low-water lines at least, would seem to apply also to baselines drawn under Art. 9 in a similar fashion to those in deltaic river regions of the world.10

II. Historical Background 3

At the 1930 Hague Codification Conference, the Second Commission’s Sub-Committee II recorded the view that ‘when a river flows directly into the sea, the waters of the river constitute inland water up to a line following the general direction of the coast drawn across the mouth of the river whatever its width’; and that if the river flows ‘into an estuary, the rules applicable to bays apply […]’.11 The 1956 draft provision on (then) Art. 13 CTSCZ (concerning rivers) indicated, in similar fashion, that if a river flowed directly into the sea ‘the territorial sea shall be measured from a line drawn inter fauces terrarum across the mouth of the river’ (para. 1); and that ‘[i]f the river flows into an estuary the coasts of which belong to a single State, article 7 [on bays] shall apply’ (para. 2).12 However, the International Law Commission (ILC) pointed out in its commentary13 that so far as Art. 7 (2) CTSCZ was concerned, the ILC did not have ‘the necessary geographical data at its disposal 7

See also Tru¨mpler on Art. 7 MN 24–32. Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 111; see also Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 47. 9 Thus, e. g., in the case of the Mississippi Delta, it has been necessary to construct ‘numerous closures’, US Department of State, Measurement of the U.S. Territorial Sea, Department of State Bulletin 1044 (1959), 963, 966–967; see the map in: Marjorie Whiteman (ed.), US Department of State: Digest of International Law, vol. IV (1965), 338. 10 This was a point made by Mr Fitzmaurice: ILC, Summary Records of the Meeting of the 7th Session, ILC Yearbook (1955), vol. I, 220, 221, who stated that when the land domain was being constantly pushed out to sea ‘by the constant formation of [new coastal features], it was necessary to determine the point from which the low watermark was to be measured, and States might find it necessary to revise the line from time to time’. 11 League of Nations, Report of the Second Commission (Territorial Sea), LN Doc. C.230.M.117.1930.V. (1930.V.15.), 14 (Appendix B); the phrase ‘general direction of the coast’ was to be criticised in the ILC’s 1953 Report of its Committee of Experts, who observed that it was ‘impossible’ to establish such a position ‘in many instances’, ILC, Additif au deuxieme rapport de M. J. P. A. Francois, rapporteur special, UN Doc. A/CN.4/61/ Add.1 (1953), reproduced in: ILC Yearbook (1956), vol. II, 75, 78; see more generally Reed (note 6), 314–315. 12 ILC, Summary Records of the Meetings of the 8th Session, ILC Yearbook (1956), vol. I, 199. 13 Ibid. 8

98

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4–6

Art. 9

to decide whether this provision [was] applicable to all existing estuaries’; and it was also thought that the meaning of ‘estuary’ was too hard to define.14 The absence of a wording referring to estuaries in Art. 9 can, then, be traced back to the 4 final draft article provisions on river baselines of the ILC at UNCLOS I which, whilst being approved in the First Committee of UNCLOS I, were partially rejected in the Plenary Conference vote by failing to get the necessary two-thirds majority. 15 Accordingly, as will be seen below, only a paragraph concerning the first of two river situations finally remained: so that in the case of the second – where a river flows into an estuary – arguably the provision on bays was to apply.16 Some commentators such as BOUCHEZ view the distinction between an estuary and a river mouth as important, especially as there are no ‘limits for the length of a river mouth stricto sensu’; so that in the former case only the bay rules apply. 17 As seen, the wording of Art. 9 is almost identical to that in Art. 13 CTSCZ, 18 and at the 5 1973 session of the Seabed Committee – and subsequently at UNCLOS III – there were proposals submitted to retain the exact wording of the CTSCZ, which then appeared as Provision 13 of the ‘Main Trends’ working paper.19 At the Third Session in 1975, the thenArt. 8 of the Informal Single Negotiating Text detailed an expanded version which, whilst not changing the main previous substantive wording, added a procedural obligation on a coastal State to ‘clearly indicate these baselines on large-scale charts deposited with the SecretaryGeneral of the UN, who shall give due publicity thereto’.20 However, when this latter requirement was duly (and logically) hived off into a separate new article in the Revised Single Negotiating Text, the text reverted essentially to its originally-proposed form. 21

III. Elements 1. Does the Article Include Estuaries? A major problem of interpretation is involved with the opening phrase ‘[i]f a river flows 6 directly into the sea’ (emphasis added). As has been pointed out by previous commentators, the French text is clearer than the English in stating ‘[s]i un fleuve se jette dans la mer sans former estuaire […]’; and that ‘[i]f the expression ‘flows directly’ is taken to mean ‘without forming an estuary’ as in the French text, the application of this article in practice may be limited’22, insofar as there may be few examples of rivers which do not have tidal mouths (i. e., where sea water meets fresh water as is typical in an estuary). So that in most estuarial situations the bay rules will here seemingly apply based on Art. 10.23 As CHURCHILL/LOWE comment, it ‘may not always be easy to distinguish between a river entering the sea directly and one entering the sea via an estuary’.24 In the light of the French text, it has, then, been suggested that the word ‘directly’ may be interpreted to mean ‘without forming an estuary’, 25 14 ILC, Regime of the Territorial Sea: Report by J. P. A. François, Special Rapporteur, UN Doc. A.CN.4/53 (1952), reproduced in: ILC Yearbook (1952), vol. II, 25, 37, to the effect that the Second Commission’s report (note 11) was open to objection in that an estuary ‘does not admit of a general and sufficiently firm definition’. 15 Nordquist/Nandan/Rosenne (note 8), 111; see UNCLOS I, 19th Plenary Meeting (1958), OR II, 61, 64 (para. 35). 16 See infra, notes 22 and 27. 17 Bouchez (note 3), 21–22., stating one has ‘always to decide on the basis of the particular circumstances whether there is an estuary or a rivermouth’. 18 Nordquist/Nandan/Rosenne (note 8), 110. 19 Ibid. 20 Ibid. 21 Ibid. 22 Ibid., 111; see also the Spanish text: ‘directamente’. 23 See, e. g., Westerman (note 3), 110, stating that: ‘It is clear from this language that [Art. 13 CTSCZ did] not apply to rivers which flow into a bay or estuary’. 24 Churchill/Lowe (note 8), 47. 25 UN DOALOS, Baselines: An Examination of the Relevant Provisions of the Law of the Sea (1989), 27 (para. 62).

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Part II. Territorial sea and contiguous zone

though it may be contended that estuaries are parts of rivers anyway; and that particularly in modern times, with rising sea levels, there are ‘very few rivers which do not have estuaries’. 26 In fact early drafts of Art. 13 CTSCZ by the ILC indicated that an estuary was not to be considered part of a river;27 so that in this instance the bay rules should inevitably apply. Indeed, two of the past theories relating to mouths of rivers have respectively assimilated the regime either to that of bays or, as adopted by the 1930 Hague Codification Conference, to one based on a rule which depends on the geographical formation of the river mouth. 7 The fact that the reference to estuaries was dropped in the CTSCZ, largely for reasons of difficulty of definition, has been seen as indicating to some commentators that the bay rules still apply to estuaries28 as, indeed, has been US practice.29 Thus whether a bay or a riverbased line is finally adopted may depend on ‘a case-by-case determination’. 30 It has been further suggested that the English text may be interpreted as covering the geographical situation where a river runs into the sea ‘without forming a delta’.31 This may be on the basis that Art. 7 applies to deltas as such – with a different baseline rule – and not to estuaries as such.32

2. No Prescribed Length 8

Another problem is that, unlike in the case of bays in Art. 10 (5)33, there is no maximum length specified as to the closing line. Accordingly, some commentators suggest there is no maximum here; so that provided the line drawn meets the other conditions of Art. 9, it can be of any length.34 However, at times maximum limits have been suggested, usually on an analogy with the bay rules;35 and if a river flows into a bay or estuary, the bay rule of a 24 26

Ibid. Reed (note 6), 311–312; cf. the British viewpoint in 1955 that the draft article on rivers should ‘make clear that the “mouth of a river” means the river proper and not an estuary or bay into which it may flow’, ILC, Report of the International Law Commission, UN Doc. A/2934 (1955), GAOR 10th Sess. Suppl. 9, reproduced in: ILC Yearbook (1955), vol. II, 19, 58. 28 Reed (note 6), 312; though Daniel P. O’Connell, The International Law of the Sea, vol. I (1982), 225, concludes more vaguely that the bay rules may not necessarily apply to ‘estuaries’, so that such cases are left ‘unresolved’. The definition of an ‘estuary’ as such (compared with a ‘river mouth’) – apart from it having wide entrance points (as the banks diverge), high salinity and tidal flow in contained waters (so no longer being ‘riverine’ – is not an easy one to make as the Rapporteur to the ILC admitted in ILC, Summary Records of the Meetings of the 7th Session, ILC Yearbook (1955), vol. I, 220. Despite the Rapporteur’s doubts on definition, he there stated that he had been ‘reassured that it [an estuary] was a well-defined geographical concept which required no elucidation’. The term is (vaguely) defined by the International Hydrographic Bureau, as the ‘tidal mouth of a river where the seawater is measurably diluted by the fresh water’ from a river, see: IHB, Manual on Technical Aspects of the UN Convention on the Law of the Sea – 1982 (4th edn. 2006), Appendix 1–12, para. 32. 29 See Reed (note 6), 312; and Bouchez (note 3), 22, where a river flows into an estuary (‘indentation of the sea’), the rules governing bays apply unless the claimant can prove otherwise. 30 Reed (note 6), 313. 31 Nordquist/Nandan/Rosenne (note 8), 111, citing Lewis M. Alexander, Baseline Delimitations and Maritime Boundaries, VJIL 23 (1983), 503, 512. 32 Nordquist/Nandan/Rosenne (note 8), 111. 33 Further, see Symmons on Art. 10 MN 17–18. 34 Reed (note 6), 318; Robert D. Hodgson/Lewis M. Alexander, Towards an Objective Analysis of Special Circumstances, Law of the Sea Institute Occasional Paper 13 (1972), 3; John V. R. Prescott, The Maritime Boundaries of the World (1985), 51; cf. American Law Institute, Restatement of the Law: Foreign Relations Law of the United States, No. 1 (1957), para. 6 (3), referring to a line being drawable ‘irrespective’ of its width where a river does not flow into an estuary. 35 Reed (note 6), 318; Whiteman (note 9), 336; see also, e. g., the 10-mile width rule suggestion in the case of a bay ‘or river-mouth’, Benjamin H. Read, Delimitation of the Territorial Sea at the Mouth of a River (1957), 17– 18; cf. the interesting past suggestion of Yugoslavia that if the breadth of a river mouth exceeded a set distance (12 NM), the principle of a bay should apply, ILC Report (note 27), 48; cf. also the comments of Belgium in 1956 relating to closing line length, ILC, Comments by Governments on the Provisional Articles Concerning the Re´gime of the High Seas and the Draft Articles on the Re´gime of the Territorial Sea adopted by the International Law Commission at its Seventh Session in 1955, UN Doc. A/CN.4/99 (1956), reproduced in: ILC Yearbook (1956), vol. II, 37 et seq.; and the comments of the UK, ibid., 80, 85; Reed (note 6), 313–314. 27

100

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Mouths of rivers

9–10

Art. 9

NM maximum line may be solely applicable.36 Added to this, there is not any river-based semi-circle hydrographic test to determine the legality as to the choice of an entity for the closing line as in the case of bays proper in Art. 10 (2).37 So in the case of major estuaries – such as that of the Rio de la Plata in South America – it could be of more than mere academic interest whether the river rules or the bay rules apply. 38

3. Meaning of ‘Mouth of the River’ and ‘Banks’ Another problem concerns the meaning of the ‘mouth of the river’: namely, what 9 constitutes the points on the low-water line, and, indeed, what is meant by ‘banks’ 39 across which a straight line may be drawn40 (i. e., what points are to be chosen as the termini of any closing line of the river). In this connection, given that the connecting river basepoints must be on the low-water line of the banks of a river’s mouth, even the mouth of a river may be difficult to determine ‘especially if it has a low coast’ and a ‘large tidal range’. 41 Accordingly, if the seaward banks of a river are gently curving outwards, there may be a locational problem as to selection of the appropriate ‘mouth’ analogous to that of the choice of the natural entrance points of a bay under Art. 10. A simple case is where there are parallel banks of a river which ‘form right angles with the shore of the open sea’, and where a direct line across may define the ‘mouth’.42 However, this may not always be the case: many rivers do not retain their river-like ‘parallel bank’ characteristics all the way to the sea, often having diverging banks as they approach the sea and begin to form an estuary; 43 in this case, the same processes employed for determining the basepoints of a juridical bay (� Art. 10 (2)) will have to be resorted to by analogy.44 In US case-law a ‘45 degree test’ has been used as a supposed method of locating not only the headlands of bays, but also the mouths of rivers: in a similar way to that on the analogous problem relating to determining the natural entrance points of bays.45 Thus controversies over the provisions on river–closing lines have also arisen over ‘identifying the points on the banks that serve as termini of the closing line’ at the ‘mouth’.46 A related problem here is where non-natural extensions, such as parallel jetties, may have 10 been added to the original banks of a river. There is some US authority to suggest in the case of such artificial extensions, the actual seaward termini of them may be treated as the relevant connecting basepoints.47 The meaning of ‘banks’ may also cause basepoint-connection problems where submerged features such as a shoal area lie at a river mouth, though the 36

Reed (note 6), 318. A point mentioned by Reed (note 6), 313, ‘even [an estuary] would have to constitute a well-marked indentation into the coast and enclose enough water area to meet the semicircle test’. For further information on the semi-circle test, see Symmons on Art. 10 MN 7–8. 38 Churchill/Lowe (note 8), 47, comment that few cartographers would be ‘likely to choose the location of the [chosen] line or indeed say that the river [Plate] entered the sea directly’. 39 Cf. the somewhat differing and vaguer tentative draft restatement by the American Law Institute Restatement of the Law (note 34), which referred simply to ‘the shore’ of a river or a line across its ‘mouth’ where it does not flow into an ‘estuary’, Whiteman (note 9), 336. 40 Nordquist/Nandan/Rosenne (note 8), 111. Note that the ILA Committee on Baselines under the Law of the Sea at their Washington Conference (2014), in proposing a new committee on baselines, suggested in their ADD Report that it should consider the interpretation and State practice relating to Art. 9 and the mouths of rivers, see: ILA, Report of the Committee on Baselines under the International Law of the Sea, Washington Conference (2014), para. 89. 41 UN DOALOS Baselines Study (note 25), 26. 42 Reed (note 6), 311. 43 Ibid. 44 Ibid., 317. 45 Ibid., 260 (footnote 228), 311, 317. He notes also that this test was used by Mexico and the US to locate the mouth of the Rio Grande during negotiations leading to the treaty establishing their joint maritime boundary 12 NM into the Gulf of Mexico. 46 Ibid., 310–311. 47 Ibid., 315, 316, citing the US domestic precedent of Texas v. Louisiana, 406 U.S. 465 (1976). 37

Symmons

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Part II. Territorial sea and contiguous zone

word ‘bank’ itself implies land above high tide.48 Added to this, as seen, natural components of river mouth such as sandbars and mudflats may be constantly moving their positions, so that choosing an appropriate fixed low-tide basepoint on them may be difficult, as, for example, in the case of the mouth of the Rio de la Plata.49

4. Inclusion of Border Rivers? Curiously there is no provision in Art. 9 – equivalent to Art. 10 (1) on bays – as to whether Art. 9 is confined to rivers ‘which belong to a single State’. Thus in the case where a river belongs to more than one State, the Art. 9-rules may seemingly be more liberally applied as compared with the rule concerning bays.50 Some commentators seem to assume a literal interpretation from the abovementioned omission: so that, even where a ‘border river’ exists, Art. 9 applies to allow a straight baseline;51 and certainly there are examples throughout the world where straight closing lines have been extended either unilaterally – to at least the midway line of a river mouth,52 as in the case of Iran and the Shatt-al-Arab river53 – or bilaterally, as in the case of the estuarial area of the River Oyapock between French Guyana and Brazil.54 However some State practice has reacted against such an interpretation: as, for example, in the case of the US (and others’ protests) in 1963 to the jointly-agreed ArgentinaUruguay straight closing line across the Rio de la Plata.55 12 At UNCLOS I, a draft ILC article did refer to a river which flows into ‘an estuary the coasts of which belong to a single State’;56 and the UK commented to the ILC in 1956 that it approved the ILC’s draft article on the ‘assumption that baselines cannot be drawn across the frontier between States’.57 However several agreements relating to border rivers seem to apply no closing line, but instead opt for an open-ended seaward delimitation up to the river 11

48 Reed (note 6), 317. He cites the US precedent of Georgia v. South Carolina, 497 U.S. 376 (1990), where the Supreme Court allowed a ‘geographical feature’ in the form of a submerged shoal at the mouth of the Savannah River to be the equivalent of an opposing headland as it had been ‘long recognized as confining the river’, and he criticizes this decision for law of the sea purposes on the basis that the Art. 9 reference to ‘points on the low-tide [now low-water] line of its banks’ makes it clear that ‘features without a low-water line will not qualify as riverbanks’. 49 Note, e. g., the query of Mr Salamanca at the Seventh Session of the ILC as to the application of a straight line where a river, such as the Rio de la Plata, is ‘continuously forming new strips of land’ with a ‘constantly changing contour’, ILC, Amendements propose´s par M. J. P. A. François, Rapporteur spe´cial, sur la base des observations des gouvernements au projet d’articles provisoires, adopte´ par la Commission du droit international a` sa sixie`me session, sur le re´gime de la mer, UN Doc. A/CN.4/93 (1955), reproduced in: ILC Yearbook (1955), vol II, 5, 6. It may be noted that in the case of Nicaragua v. Honduras baseline problems (albeit lateral ones) arose in a boundary delimitation situation in the River Coco where the ICJ found it impossible to identify clear basepoints because of progressive and on-going sedimental accretion in the river: ICJ, Case Concerning Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment of 8 October 2007, ICJ Reports (2007), 659, paras. 277–281. 50 Nordquist/Nandan/Rosenne (note 8), 112. 51 UN DOALOS Baselines Study (note 25), 27 (para. 62); Reed (note 6), 313. 52 Cf. though the Venezuelan claim to a closing line across the Orinoco River Delta area connecting with adjacent Guyanan territory, see Tullio Scovazzi et al., Atlas of the Straight Baselines (2nd edn. 1989), 64–65. 53 Clive 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’, IJMCL 24 (2009), 473; Scovazzi et al. (note 52), 152–153. 54 Scovazzi et al. (note 52), 14–15. 55 See, for the US protest, Whiteman (note 9), 343: ‘the provisions of [Art. 9] relate only to rivers which flow […] from the territory of a single State and not to rivers whose coasts belong to two or more different States’; for the UK protest, see Symmons (note 53), 468 (footnote 46). 56 Cf. UN DOALOS Baselines Study (note 25), 27 (para. 62). 57 ILC Comments by Governments (note 35), 85 (emphasis omitted). An associated problem is that if a river mouth is estuarial, and the bay rules in Art. 10 are applicable, it may be the case that Art. 10 (1) disallows a straight baseline across a border bay in this instance. A case in point is the Ems-Dollard estuary between Germany and the Netherlands, in the case of which the Netherlands has unilaterally imposed a closing line between Rottumeroog and Borkum specifically as a ‘river closing line’, see: Steffen Dewina, The Factors of Relevance in the Delimitation between the Territorial Seas of the Netherlands and Germany (2012), Masters Thesis, University of Tromso.

102

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13–15

Art. 9

mouth or beyond, based very often simply on a mere lateral median line, with no consequent ‘connecting line’ going across between a border river’s banks so as to effect any clear containment of internal (river) waters. There appears, however, to be no reason in principle why two or more bordering States should not agree on closing off a shared river mouth. 58 Indeed, REED wisely comments that boundary rivers most certainly contain internal waters; and that if such rivers are not delimited in accordance with the UNCLOS-based provision for rivers, this may be unfortunate for the international community.59 Furthermore, the authoritative UN publication on baselines specifically asserts that Art. 9 applies even if ‘the rivers in question […] are shared by two or more countries’.60 A border river was discussed in the Case Concerning Maritime Delimitation in the Black 13 Sea, where it appears that both parties (Romania and Ukraine) had accepted previous agreements (‘process verbaux’) dating back to 1949 as constituting the agreed ‘land-river boundary’ between them on the mouth of the St George arm of the Danube (debouching into the border bay of Musura), which line delimited the territorial sea and/or the internal waters of Romania and (originally) the Soviet Union, laterally following the mid-channel line; though the river had no final agreed closing line across its mouth.61

5. State Practice and International Jurisprudence Most State practice concerns closing lines of bays, which have a more important role both 14 in terms of defining the extent of enclosed internal waters and the seaward extent of baselines for measurement of maritime zones therefrom. Thus, in terms of State practice as to claiming and drawing straight baselines across the mouths of rivers, the matter has been of no great practical significance, because States may not have bothered to close off their rivers as internal waters; and have concentrated rather on closing off bays, under the provisions of Art. 10, or more expansively, closing off marine waters under Art. 7 thereof: whereby not only may more expansive internal waters be created, but also the straight baselines used may cause the maritime zones extending therefrom to be similarly more expansive. Indeed as CHURCHILL/LOWE point out, few States have legislation referring to river-closing lines. 62 Furthermore, as many river mouths or estuaries are themselves contained within bays or an 15 expansive straight baseline system under Art. 7, the need to close off such already-enclosed rivers becomes redundant.63 However in the rare instance where States have utilised an explicitly riverbased closing line to enclose expansive marine waters, as in a large estuary, other States have seen fit to protest. A prime example of this is the above mentioned joint declaration by Uruguay and Argentina in 1961 to close off the mouth of the Rio de la Plata with an imaginary line some 120 NM long. This was protested by the US in 1963 on the basis that ‘the provisions of [now Art. 9]

58 Cf. Symmons (note 53), 457, 463–464.; also Tullio Scovazzi, Problems Relating to the Drawing of Baselines to Close Shared Maritime Waters, in: Clive R. Symmons (ed.), Selected Contemporary Issues in the Law of the Sea, 15, 29. 59 Reed (note 6), 318. 60 UN DOALOS Baselines Study (note 25), 27 (para. 62); see also Charles C. Hyde, International Law as Chiefly Interpreted and Applied by the US, vol. I (2nd. edn. 1945), 475, who criticised the observations of the League of Nations Preparatory Committee as to the low-water mark rule in shared rivers by saying ‘the bordering States may agree on a division of such waters as inland waters’. 61 ICJ, Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment of 3 February 2009, ICJ Reports (2009), 61, paras. 51–58. 62 Churchill/Lowe (note 8), 55; cf. as an example the Papua New Guinea National Seas Act, Act No. 7 (1977), Schedule 1: Principles for Ascertaining Baselines, especially Schedule 1.5 (referring to river mouths). 63 Cf. the reluctance at one time on the part of the UK to claim a line from headland to headland across the Thames Estuary; cf. Written Answers, Hansard 550 (House of Commons) col. 68, 15 March 1956; however in a later court case, Post Office v. Estuary Radio Ltd. [1968] 2 Q.B. 740 (UK), the Thames ‘estuary’ was determined to be a ‘bay’ within judicially-set closing lines.

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16–18

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relate only to rivers which flow directly into the sea from the territory of a single State and not to rivers whose coasts belong to two or more different States’.64 16 It seems from such limited State practice that there is controversy over what the phrase ‘flows directly into the sea’ means; and also whether an analogous application of the provision contained in Art. 10 (1) bars the straight-baselining of shared river mouths, as at an international boundary, even if there is agreement on this by the riparian States concerned. There are several examples worldwide, as seen, where border river baselines have caused problems, either because a unilaterally-imposed straight closing line has been imposed by one riparian State across it; or where, by mutual agreement an excessively broad river estuary has been closed off by neighbouring States. For an example of the first instance, a line may be unilaterally extended to the ‘thalweg line’ at the mouth of a border river – as in the case of Iran in 1973 where the northerly endpoint of its straight baseline system terminated on what were (then) Iraqi-claimed waters across the mouth of the Shatt-al-Arab River mouth/estuary at that line.65 This line was, however, later sanctioned by an agreed protocol in 1975.66 In many cases, merely the lateral river mouth limits have been agreed. 67 There is no significant jurisprudence applying to closing off of river mouths, though, as seen, there was some indirect reference made to this issue by the ICJ in the context of continental shelf delimitation in the Maritime Delimitation in the Black Sea case.68 17 Art. 16 applies to any such baselines which are drawn, so that such closing lines must either be depicted on charts (or the coordinates of the ends of the lines published) or the limits of the territorial sea extending therefrom must be published in lieu.69 The abovementioned lack of clarity as to the extent of the application of Art. 9, and the fact that the bay-closing Art. 10 is ‘much more restrictive’ than Art. 9, 70 may not have any great practical consequences in most geographical situations, as there are, in any event, distinct analogies between the ‘straight baseline’ provisions relating to both rivers (under Art. 9) and bays (under Art. 10).71 18 There are no boundary delimitation provisions relating generally to any type of internal waters in the UNCLOS, including rivers; but, as stated in the Case of the Maritime Boundary between Guinea-Bissau and Senegal,72 the delimitation of an area of spatial validity can apply not only to a land or sea area, but also to the waters of rivers and lakes. As seen, some States have laterally divided their shared internal river waters up to at least the mouth of a boundary river.73

64 The UK made a similar protest in 1961, see Whiteman (note 9), 343; it seems that also the Netherlands (in 1962) made a protest, J. Ashley Roach/Robert Smith, United States Responses to Excessive Maritime Claims (2nd edn. 1996), 129. The controversial agreed boundary river closing line is to be found in Art. 1 of the Treaty between Uruguay and Argentina concerning the Rio de la Plata and the Corresponding Maritime Boundary, 19 November 1973, LIS 64, 2 (reproducing a joint declaration of 1961) where under the estuary is specifically claimed as a mouth of a river (rather than e. g., a bay) along an imaginary line some 120 NM wide joining Punta del Este (in Uruguay) with Punta Rasa del Cabo Antonio (in Argentina), see Scovazzi et al. (note 52), 8 et seq. 65 Cf. Symmons (note 53), 473. 66 As discussed by the present writer, see Clive R. Symmons, L’echange de lettres de 1990 entre l’Iran et l’Iraq: un reglement definitif du differend et du conflit?, AFDI 36 (1990), 228, 231–233. 67 Cf. Maritime Delimitation in the Black Sea Case (note 61). 68 Ibid. 69 See Symmons on Art. 16 MN 7–9. 70 UN DOALOS Baselines Study (note 25), 27 (para. 62). 71 Reed (note 6), 311, who points out that, unlike bays, river mouths are ‘rarely so wide that they have any significant effect on the seaward limits of the territorial sea’, but may still be important for determining the extent of internal waters of rivers; and so for the status of the enclosed waters, with no rights of innocent passage etc. in this instance. 72 ICJ, Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Judgment of 12 November 1991, ICJ Reports (1991), 53. 73 See, e. g., supra, note 64.

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Bays

Article 10 Bays 1. This article relates only to bays the coasts of which belong to a single State. 2. 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. An indentation shall not, however, be regarded as a bay unless its area is as large as, or larger than, that of the semicircle whose diameter is a line drawn across the mouth of that indentation. 3. For the purpose of measurement, the area of an indentation is that lying between the low-water mark around the shore of the indentation and a line joining the low-water mark of its natural entrance points. Where, because of the presence of islands, an indentation has more than one mouth, the semi-circle 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. 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 lowwater 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. 6. The foregoing provisions do not apply to so-called ‘historic’ bays, or in any case where the system of straight baselines provided for in article 7 is applied. Bibliography: Damir Arnaut, Stormy Waters on the Way to the High Seas: The Case of the Territorial Sea Delimitation between Croatia and Slovenia, in: David D. Caron/Harry N. Scheiber (eds.), Bringing New Law to Ocean Waters (2004), 427–466; Peter B. Beazley, Maritime Limits and Baselines: A Guide to Their Delineation (2nd edn. 1978); Leo J. Bouchez, The Regime of Bays in International Law (1964); Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); Robert D. Hodgson/Lewis M. Alexander, Towards an Objective Analysis of Special Circumstances, Law of the Sea Institute Occasional Paper 13 (1972); Ted L. McDorman, Notes on the Historic Waters Regime and the Bay of Fundy, in: Aldo Chircop/Ted L. McDorman/Susan J. Ralston (eds.), Essays in Tribute to Douglas M. Johnston (2009), 701–722; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Daniel P. O’Connell, The International Law of the Sea, vol. I (1982); John R. V. Prescott, The Maritime Political Boundaries of the World (1985); John R. V. Prescott, Straight Baselines: Theory and Practice, in: Eddie D. Brown/Robin R. Churchill (eds.), The United Nations Convention on the Law of the Sea: Impact and Implementation (1987), 288–313; John R. V. Prescott, Publication of a Chart Showing the Limits of South Africa’s Maritime Claims, ICMCL 14 (1999), 557–566; Michael W. Reed, The Development of International Maritime Boundary Principles through United States Practice, in: US Department of Commerce, Shore and Sea Boundaries, vol. III (2000); Anne E. Reynolds, Is Riga an Historic Bay?, IJECL 2 (1987), 20–35; J. Ashley Roach/Robert W. Smith, United States Responses to Excessive Maritime Claims (2nd edn. 1996); James Brown Scott, The Hague Court Reports (1916); Tullio Scovazzi/Giampiero Francalanci/Daniela Romano/Sergio Mongardini, Atlas of Straight Baselines (2nd edn.1989); Tullio Scovazzi, Problems Relating to the Drawing of Baselines to Close Shared Maritime Waters, in: Clive R. Symmons (ed.), Selected Contemporary Issues in the Law of the Sea (2011), 15–30; Aaron L. Shalowitz, Boundary Problems Associated with the Submerged Lands Cases and the Submerged Lands Acts, in: US Department of Commerce, Shore and Sea Boundaries, vol. I (1962); Mitchell P. Strohl, The International Law of Bays (1963); Clive R. Symmons, Ireland and the Law of the Sea (2nd edn. 2000); Clive R. Symmons, Historic Waters in the Law of the Sea: A Modern Re-Appraisal (2008); Clive 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’, IJMCL 24 (2009), 457–500; Clive R. Symmons/Michael W. Reed, Baseline Publicity and Charting Requirements: An Overlooked Issue in the UN Convention on the Law of the Sea, ODIL 41 (2010), 77–111; Farhad Talaie, The Issue of Delimitation of Multi-State bays in the International Law of the Sea, University of Tasmania Law Review 18 (1999), 22; Yoshifuma Tanaka, The International Law of the Sea (2012),53–59; Gayl Westerman, The Juridical Bay (1987); Marjorie Whiteman (ed.), US Department of State: Digest of International Law, vol. IV (1965)

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1

Part II. Territorial sea and contiguous zone

Documents: ILA, Report of the Committee on Baselines under the International Law of the Sea, Washington Conference (2014); ILC, Report of the International Law Commission, UN Doc. A/2934 (1955), GAOR 10th Sess. Suppl. 9, reproduced in: ILC Yearbook (1955), vol. II, 19–62; ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45; ILC, Juridical Regime of Historic Waters, Including Historic Bays, Study Prepared by the Secretariat, UN Doc. A/CN.4/143 (1962), reproduced in: ILC Yearbook (1962), vol. II, 1–26; ILC, Additif au deuxieme rapport de M. J. P. A. Francois, rapporteur special, UN Doc. A/CN.4/61/ADD.1 (1953), reproduced in: ILC Yearbook (1956), vol. II, 75–79; UN DOALOS, Baselines: An Examination of the Relevant Provisions of the Law of the Sea (1989); US Department of State, Straight Baselines: Dominican Republic, Limits in the Seas No. 5 (1970) Cases: Alaska v. United States, 546 U.S. 413 (2006); Central American Court of Justice, Costa Rica v. Nicaragua, Judgment of 30 September 1916, AJIL 11 (1917), 181–229; Central American Court of Justice, El Salvador v. Nicaragua, Opinion and Decision of 9 March 1917, AJIL 11 (1917), 674–730; ICJ, Fisheries Case (United Kingdom v. Norway), Judgment of 18 December 1951, ICJ Reports (1951), 116; ICJ, Case Concerning the Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), Judgment of 24 February 1982, ICJ Reports (1982), 18; ICJ, Case Concerning the Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras: Nicaragua intervening), Judgment of 11 September 1992, ICJ Reports (1992), 351; ICJ, Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment of 3 February 2009, ICJ Reports (2009), 61; PCA, South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China), Award of 12 July 2016, available at: https://www.pcacases.com/web/view/7; PCA, The North Atlantic Coast Fisheries Case (Great Britain v. United States of America), Award of 7 September 1910, RIAA XI, 167; Post Office v. Estuary Radio Ltd. [1968] 2 QB 740 (UK); United States v. California, 382 U.S. 448 (1966); United States v. Louisiana, 394 U.S. 11 (1969) Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Geographical and Other Requirements for Juridical Bay Status. . . . . . . . . . . . . . . . . 2. Method to Enclose Internal Waters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Bays Covered by the Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) ‘This article relates only to bays the coasts of which belong to a single State’ b) ‘provisions do not apply to so-called “historic” bays’. . . . . . . . . . . . . . . . . . . . . . . . c) ‘provisions do not apply […] where the system of straight baselines provided for in article 7 is applied’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. State Practice on Bays. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. International Jurisprudence on Bays. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 7 7 14 19 19 22 27 28 30

I. Purpose and Function 1

This article – which largely follows the provisions set out in Art. 7 Convention on the Territorial Sea and the Contiguous Zone (CTSCZ) – is aimed at defining what is understood to be a bay in juridical terms (hence the common phrase ‘juridical bay’)1 – both in somewhat vague subjective terms but also with a built-in hydrographic test to help objectivize the concept and impose a ‘mathematical standard’2 so as to include only indentations properly considered to be surrounded on all sides but one.3 These tests hopefully eliminate past dubious claims by States and help to safeguard the freedom of the seas. 4 The article then indicates – if such a bay is juridically in existence – where, and to what distance, a so-called closing line may be drawn across the mouth of such an indentation (a matter complicated where the natural entrance points are more than 24 NM wide or where islands exist in the 1 Cf. in geography, the terms ‘bay’ and ‘gulf’ are used interchangeably: Leo J. Bouchez, The Regime of Bays in International Law (1964), 17. 2 Ibid., 112. 3 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 113–117; UN DOALOS, Baselines: An Examination of the Relevant Provisions of the Law of the Sea (1989), 28–29; Michael W. Reed, The Development of International Maritime Boundary Principles through United States Practice, in: US Department of Commerce, Shore and Sea Boundaries, vol. III (2000), 23–236. 4 Bouchez (note 1), 115.

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Art. 10

mouth of the alleged bay). Such a straight baseline then proportionately extends the coastal State’s various maritime limits of jurisdiction generated therefrom seawards. 5 The article goes on to make clear that certain bays and situations are excepted from its 2 provisions – namely bays shared by at least two States (hereinafter ‘border bays’), historic bays, and where Art. 7 (on straight baselines) applies.6 At UNCLOS III suggested new rules (such as mandatory central deposit of historic bay claims) failed to be added, so that existing principles such as a 24 NM closing line were re-affirmed7 and further elaboration of matters relating to historic bays rejected.8 River mouths have their own regulations in Art. 99 as seen, though inter-relating here arguably in the case of estuaries with the bay provisions; and inland seas are usually considered as being distinct from bays.10 The status of the waters enclosed within such a bay is that of internal waters in which other States have no right of innocent passage.11 Nonetheless, the above-summarized bay rules are aimed at striking a balance between a coastal State’s perceived strong economic (e. g. fishing) and defense interests within its coastal indentation and that of the principle of freedom of the seas. 12

II. Historical Background Historically, one of the most controversial issues relating to bays has been the permissible 3 maximum width allowed for their mouths under customary international law. Such supposed maximum widths ranged in the past from 3 to 6 NM initially and then increased to 10 NM 13 – a distance, though, which was found in the International Court of Justice (ICJ) Fisheries Case not to have the consistency and authority of a general rule of law.14 The basis for some such distances was probably that these were twice the distance of the territorial sea at the particular points in history.15 Academic views similarly varied considerably on the requisite width, ranging from 6, 10 and 12, to even 15 and 25 NM16 and eventually settled at 24 NM.17 Furthermore, earlier in 1910 in the North Atlantic Coast Fisheries Case, the Permanent Court of Arbitration had found no clear customary law rules relating to the definition of bays. 18 In 1958, the controversy relating to definition of bays, and maximum permissible width of 4 their mouths, was put to rest at UNCLOS I in the CTSCZ, with a more precise legal definition; and where the closing line limits were confirmed at 24 NM. 19 The latter limit was chosen on the basis that it represented twice the distance of the then-developing rule for the width of the territorial sea and was liberal enough to limit excessive claims. 20 There was further consideration of the bay provisions at UNCLOS III, but none of the rules was changed; and so Art. 10 is now based on, and largely repeats, Art. 7 CTSCZ. 5

Gayl Westerman, The Juridical Bay (1987), 77. Cf. Nordquist/Nandan/Rosenne (note 3), 115. 7 Ibid., 116. 8 Ibid., 115. 9 See also Symmons on Art. 9 MN 9–10. 10 Cf. Bouchez (note 1), 21. 11 Cf. Art. 8 (2) where in the case of straight-baselined waters (Art. 7) such a right continues in former territorial/high seas areas now enclosed. See Tru¨mpler on Art. 8 MN 31. 12 Bouchez (note 1), 108. 13 Westerman (note 5), 16, 164. 14 ICJ, Fisheries Case (United Kingdom v. Norway), Judgment of 18 December 1951, ICJ Reports (1951), 116, 131. 15 Bouchez (note 1), 105, 112. 16 Ibid., 105–107, 112–114. 17 Ibid., 114. 18 James Brown Scott, The Hague Court Reports (1916), 141, 183–184; see Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 41. 19 UNCLOS I, Summary Records of Meetings and Annexes, UN Doc. A/CONF.13/39 (1958), OR III, 146. 20 See ILC, Summary Records of the 5th Session, ILC Yearbook (1953), vol. I, 106; and Westerman (note 5), 169, who strangely views the distance choice as being ‘arbitrary’; the history of the UNCLOS I proceedings is well set out in Marjorie Whiteman (ed.), US Department of State: Digest of International Law, vol. IV (1965), 207–241. 6

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5–7

Part II. Territorial sea and contiguous zone

A definitive maximum closing line distance has long been seen as one limitation on excessive ‘bay’ claims. The other limiting criterion – the semi-circle test – had its origins in the 1930 Hague Codification Conference21 and was inserted in the UNCLOS I to act as a final test of an indentation’s bay-like qualification. The travaux pre´paratoires of UNCLOS I indicate that such an objective test of a bay was an additional necessary legal test. 22 6 The origin of historic bays (mentioned in Art. 10 (6)) is sometimes claimed to go back to the dissent of DRAGO in the North Atlantic Coast Fisheries Case;23 and seemingly emerged as a doctrine in the 19th century,24 gaining international judicial approval by the ICJ in its judgment in the Fisheries Case (1951),25 the ICJ Case Concerning the Continental Shelf (1982)26 and, most recently, in the ICJ Case Concerning the Land, Island and Maritime Frontier Dispute (1992)27 wherein Judge ODA, in his Dissenting Opinion, discussed the history of such bays in extenso.28 The concept was also discussed at the 1930 Hague Codification Conference and at UNCLOS I,29 though in the latter instance it was finally agreed only to refer the matter to the United Nations with a view to consideration by way of study of the topic; as a result of which it was then referred to the ILC. 30 5

III. Elements 1. Geographical and Other Requirements for Juridical Bay Status 7

Art. 10 (2) – for the purposes of the UNCLOS – incorporates, as mentioned above, the essential characteristics an indentation needs to qualify as a juridical bay. The three (arguably four)31 geographical elements in the first sentence referred to are essentially subjective 32 and full of ambiguity:33 namely requiring a ‘well-marked indentation’, more than a mere ‘curvature of the coast’ and with a proportionate ‘penetration’ compared with its mouthwidth so as to contain ‘land-locked waters’). These provisions have led to extensive commentary on whether they meaningfully add much, if anything, to the finally-mentioned hydrographic test (e. g., through a width of mouth-depth of indentation ratio). 34 The definitional test then goes on to apply a mathematical formula,35 without any limitation as to mouth size at this stage in the definition.36 If an indentation fails these tests, the baseline reverts to the normal baseline, i. e., the low-tide mark within the indentation, under Art. 5; so that in this instance no internal waters are created within the whole of the indentation. 21

Westerman (note 5), 93, 172. Ibid., 95; ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12, 15 (the geographical criteria ‘lacked legal precision’). 23 PCA, The North Atlantic Coast Fisheries Case (Great Britain v. United States of America), Award of 7 September 1910, Dissenting Opinion of Luis M. Drago, RIAA XI 167, 203 et seq. 24 Clive R. Symmons, Historic Waters in the Law of the Sea: A Modern Re-Appraisal (2008), 8, 56; Mitchell P. Strohl, The International Law of Bays (1963), 26, 251. 25 Fisheries Case (note 14), 130. 26 ICJ, Case Concerning the Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), Judgment of 24 February 1982, ICJ Reports (1982), 18, 74. 27 ICJ, Case Concerning the Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras: Nicaragua intervening), Judgment of 11 September 1992, ICJ Reports (1992), 351, 588. 28 Ibid., Dissenting Opinion of Judge Oda, 732 et seq.; cf. Symmons (note 24), 22. 29 Bouchez (note 1), 203–207. 30 Ibid., 206–207. 31 UN DOALOS Baselines Study (note 3), 29 (para. 67); for example Daniel P. O’Connell, The International Law of the Sea, vol. I (1982), 390, adds also the ‘24-mile’ mouth rule. 32 UN DOALOS Baselines Study (note 3), 29 (para. 67). 33 Reed (note 3), 226. 34 Cf. Westerman (note 5), 85–93, who reads a lot into these geographical aspects. 35 Ibid., 79. 36 Ibid., 81. 22

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Bays

10

The abovementioned ‘hydrographic test’ (often called the ‘semi-circle test’) in Art. 10 (2) 8 cl. 2 arguably makes the preceding geographical requirements essentially otiose; 37 so that an indentation which satisfies this test is seen to be ipso jure compliant with the preceding geographical requirements.38 Where there is presence of islands, the semi-circle test may be particularly important;39 and here it is the combined widths of mouths which can be taken into account40 in accordance with Art. 10 (3). Further, Art. 10 (3) indicates how the essential (and prima facie provisional) line for 9 applying the hydrographic test is to be actually drawn. Unfortunately, it is at this point that subjective elements can creep in,41 most particularly as to what are the ‘natural entrance points’ (the so-called apex of ‘maximum extension’ of land into water) on the low-water marks of which the ‘test line’ is to be drawn.42 This aspect is described by REED as ‘the most difficult problem’43; and it involves a concept more liberal than headlands because it may include near-land islands.44 Where indentations have one or more significant protrusions or consist of only extensively rounded headlands, difficulties of choice of possible bay termini abound,45 and such locations may lead to subjective choices unless some geometric test is applicable, several of which have, in the past, been suggested. 46 Islands, or even low-tide elevations (� Art. 13 (1))47, lying off and near to a headland – 10 may, irrespective of the baseline length provision of Art. 10 (3) – be considered to form lateral natural entrance points or headlands; and so fictively form part of the mainland themselves (as opposed to creating multiple mouths of a bay) in certain cases. 48 This is particularly the case if an insular feature is separated from the mainland by only a narrow channel; and thus is closely related or ‘assimilated’ to the mainland proper as viewed on a nautical chart, even though not part of a continuous low-water line. However, the matter is not covered specifically by the UNCLOS.49 Such an insular protrusion, if useable, may 37 Cf., e. g., Peter B. Beazley, Maritime Limits and Baselines: A Guide to Their Delineation (2nd. edn. 1978), para. 6.5; but cf. Strohl (note 24), 57; and Westerman (note 5), 93, 95 97, who sees some legal import in the geographical tests and reasons for retention of the wording, citing the case of US Supreme Court, United States v. Louisiana, 394 U.S. 11 (1969), 54. However, Westerman, ibid., 97, concedes that the final (hydrographic) test must be passed before ‘the indentation can unequivocally be designated as a bay’; see also Reed (note 3), 226. 38 But see Westerman (note 5), 94–95.; also Reed (note 3), 226, who, however, cites John R. V. Prescott, The Maritime Political Boundaries of the World (1985), 53, as arguing he did not believe any third State would ever object to a claimed bay satisfying the semi-circle test alone. 39 Westerman (note 5), 98. 40 UN DOALOS Baselines Study (note 3), 29 (para. 68). 41 Ibid. (‘two uncertainties’). 42 Aaron L. Shalowitz, Boundary Problems Associated with the Submerged Lands Cases and the Submerged Lands Acts, in: US Department of Commerce, Shore and Sea Boundaries, vol. I (1962), 63–64. 43 Reed (note 3), 256; cf. Prescott (note 38), 53. 44 Natural entrance points were introduced at UNCLOS I to replace the older ‘inter fauces terrarum’-concept: cf. Westerman (note 5), 112, who also cites: United States v. Louisiana (note 37), 61, which approved of same; natural entrance points are also mentioned in Art. 10 (4) and (5), cf. Nordquist/Nandan/Rosenne (note 3), 117. 45 Westerman (note 5), 114. There may also, for example, be more than two obvious ‘candidates’ for choice existing in the form of marked protrusions into the sea on one or either side of a claimed bay (the ‘multi-headed bay’ or ‘double-headed bay’); Reed (note 3), 258–266, describes the latter as typically consisting of a ‘single promontory that separates adjacent indentations’, as in the case of Harrison Bay off Alaska. 46 UN DOALOS Baselines Study (note 3), 29 (para. 69); for the US-proposed ‘tangent’ tests as used in US Supreme Court, United States v. California, 382 U.S. 448 (1966), 451; or the so-called ‘45 degree test’, Westerman (note 5), 116–117, favoured by her for a ‘featureless curve’ of coast. See also Reed (note 3), 258–266, on this latter test supposedly most favoured in US practice. He concludes that both the 45 degree and bisector of shortest distance tests will provide a solution ‘in a majority of cases’, the ‘bisector of the angle test’ being useful where there are no pronounced headlands: for the ‘shortest distance’ test, cf. also O’Connell (note 31), 406; and Beazley (note 37), 17. 47 See also Symmons on Art. 13 MN 28. 48 Reed (note 3), 271. 49 Ibid., 238–240,. He discusses US case law (such as United States v. Louisiana (note 37, 67) to the effect that Art. 7 CTSCZ did not ‘encompass bays formed in part by islands which cannot realistically be considered part of the mainland’. In the above-cited case, the US Supreme Court purported to lay down possible criteria for selecting such insular headlands (such as size of island, propinquity to mainland etc.), United States v. Louisiana

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considerably enhance the waters enclosed in the semi-circle test, quite apart from extending the straight baseline seawards (if the gap is less than 24 NM wide). 50 In such a case, a notional additional line (or lines) would have to be drawn laterally connecting the insular formation with the mainland to completely ‘box in’ the putative bay’s internal waters and to make up one or both sides of a bay,51 even though this is not strictly a ‘mouth’ between the mainland and the island.52 Similarly, even a low-tide elevation off a mainland headland may be considered in similar circumstances as a fictive ‘headland’. 53 Analogous issues may also arise as to whether ‘non-natural’ entrance points such as terminal-point jetties and breakwaters may be used.54 11 The other (and second) main subjective problem arising is what, more generally, are the waters within the low-water marks extending from within the bay shore for determining the extent of enclosed waters (for the purposes of the hydrographic test) to be taken in the calculation,55 particularly where there may be subsidiary bays and tributaries within the line or rivers. As an example may be cited the case of New Zealand which has enclosed Palliser Bay, relying on the waters contained in Onoke Lake lying inside the indentation. On this problem, REED points out there is disagreement on which subsidiary bay waters may be included in the test; but in general he opines that such ‘mini-bays’ waters may be added to the calculation:56 at least if the waters are collectively to be considered as one, as where subsidiary bays and lagoons are enclosed within the primary indentation. This is particularly so where the subsidiary indentations may in their own right form bays, and so may be more landlocked even than the primary bay, where such subsidiary bays and lagoons are enclosed within the primary indentation.57 12 A particular analogous problem may arise here in the case of the rivers and tributaries which are contained within the drawn semi-circle; i. e., the landward area contained within the diameter drawn between an indentations’s natural entrance points; this being done so as to calculate whether the enclosed area is as large as, or larger, than the area of the semi-circle. Such waters may, in marginal cases – i. e., where the enclosed ‘main-bay’ waters themselves fall just short of equaling or surpassing in area the waters contained in a notional semi-circle – may be critical in the hydrographic calculation; as, for example, was essentially the situation in a UK case concerning the Thames Estuary.58 SHALOWITZ would include all such subsidiary (note 37), 66. In general, though bays may not be created by islands, this insular use is suggested by Robert D. Hodgson/Lewis M. Alexander, Towards an Objective Analysis of Special Circumstances, Law of the Sea Institute Occasional Paper 13 (1972), who originally proposed four (later five) criteria for such qualification; discussed by Westerman (note 5), 143–145, pointing out that Art. 7 (now Art. 10) never uses the term ‘mainland’, or indeed even ‘headland’. 50 Cf., e. g., in Ireland’s Dublin Bay the possible use of Dalkey Island to its south as a linking point; or, in the US, the Elizabeth Islands which extend in a line from the mainland promontory of Buzzards Bay, see Reed (note 3), 271, 301–302. 51 Strohl (note 24), 77. Where this is permissible, then, some line must be continued from the mainland to the island as argued by the US Government in United States v. Louisiana (note 37), 62 et seq., which purported to lay down various criteria to determine this; such an extra line (or lines) is not added to the 24 NM length of closing line as it does not connect the bay ‘mouth’, a point not fully discussed by Westerman (note 5), 30–31. 52 Reed (note 3), 285, 302 (footnote 311); in fact the water area separating mainland and island can here be considered not as a mouth but as land. Any such notional lateral connecting lines from mainland to island would not be computable in any hydrographic or 24 NM bay-closing exercise. 53 Ibid., 286. 54 Ibid., 267–270; in United States v. Louisiana (note 37), 11, 53–54., the ends of artificial jetties were considered as seaward headlands of a bay. 55 Westerman (note 5), 101; UN DOALOS Baselines Study (note 3), 28 (para. 65). 56 Reed (note 3), 307. 57 Westerman (note 5), 104–105; Beazley (note 37), 15 (footnote 3), notes, for example, that New Zealand has enclosed Palliser Bay relying on the waters contained in an adjoining lake, as mentioned above. 58 Post Office v. Estuary Radio Ltd. [1968] 2 QB 740 (UK), here it was held that the area of Thames and subsidiary rivers should be calculated to the distance affected by rise and fall of tides; a viewpoint, however, rejected by the Special Master and Supreme Court concerning the Mississippi basin in United States v. Louisiana (note 37), 50; see further Reed (note 3), 245–246.

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waters in the calculation;59 but it has been countered that rivers at any rate already contain internal waters in their own right;60 and additionally, how far up the river estuary may one go in the calculation?61 Whilst, then, some commentators seem to have opined that all the river waters may be included in the calculation,62 others have opined such waters are not to be accounted for at all, on the basis that these are not part of the bay areas. 63 Yet others take a more midway approach by making the cut-off point where the tide ceases to run and where there is no strict low-water line64 – a test decried by WESTERMAN.65 A practical and logical reading of this provision seems to be this: that as rivers strictly have no low-tide marks except in estuarial situations, river water proper should be left out of the mathematical calculation which could otherwise take in waters extensively upstream (which are not part of the bay indentation at all). As REED points out, at some point a river channel has to be crossed to apply such a test sensibly.66 Thus the UN Baselines Study suggests that straight lines can be drawn across any internally-placed rivers so as to ‘link up the low-water lines, except possibly where the mouth is wide and penetrated by tide’.67 In calculating the enclosed ‘semi-circled’ waters, Art. 10 (3) states that ‘islands’ thereby 13 enclosed in the indentation ‘shall be included as if they were part of the water area of the indentation’. In other words, in this geographical context, the insular land in enclosed areas is fictively treated as ‘waters’ for this purpose. 68 This is justifiable, as any such enclosed islands tend to enhance the ‘internal character of the waters’. 69 Such calculation may, a fortiori, include enclosed low-tide elevations and artificial islands within, particularly as Art. 10 (2) speaks only of measuring the ‘indentation area’ and not the ‘water area’ as such. 70

2. Method to Enclose Internal Waters Once an indentation satisfies Art. 10 (1) – so that the sea area of the indentation equals or 14 exceeds the area within the drawn semi-circle in accordance with Art. 10 (2) – the only remaining question is how much of the then-enclosed waters can be claimed to be internal waters; and Art. 10 provides rules for determining the actual and finalised position of the ‘closing line’.71 Here the starting point is Art. 10 (4), which indicates clearly that if the initially-used bay-test line is not in excess of 24 NM, it shall constitute the finalised line connecting the low-water marks of the natural entrance points. As seen, the 24 NM maximum width, first settled in the CTSCZ, was preserved in the UNCLOS after a long period of divergent State practice on the matter.72 It may be noted that the phrase ‘shall be’ in this context implies no mandatory obligation to necessarily close off even a juridical bay, 73 no more so than in the case of the use of the phrase ‘may be drawn’ concerning an ‘overlarge 59 Shalowitz (note 42), 219–220; cf. also Westerman (note 5), 104; UN DOALOS Baselines Study (note 3), 28– 30; Reed (note 3), 241–243. 60 Westerman (note 5), 103.; cf. ibid., 106, the interconnected ‘multi-headed bay’ problem below, where a 24 NM closing line drawn within a primary bay leaves such a subsidiary bay seaward of the line. 61 Ibid. 62 Shalowitz (note 42), 219. 63 Hodgson/Alexander (note 49), 4–6. 64 Beazley (note 37), para. 6.15. 65 Westerman (note 5), 107–112, plumps for the Hodgson/Alexander (note 49) viewpoint, ruling out ‘unbaylike’ features running from the land. 66 Reed (note 3), 244–245. 67 UN DOALOS Baselines Study (note 3), 21. 68 Cf. the converse situation in the case of computing land/water ratio in archipelagic waters in Art. 47 (7) where certain waters are treated as land, see further Symmons on Art. 47 MN 48–49. 69 Beazley (note 37), 21. 70 Reed (note 3), 250–252. 71 Westerman (note 5), 98–99. 72 Ibid., 163. 73 Clive R. Symmons/Michael W. Reed, Baseline Publicity and Charting Requirements: An Overlooked Issue in the UN Convention on the Law of the Sea, ODIL 41 (2010), 77, 80.

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bay’ and its baseline (see below). Within such internal waters coastal States have total sovereignty (� Art. 2 (1)), including the right, as seen, to exclude innocent passage. 74 15 Under Art. 10 (3), if there is a ‘presence of islands’ so that an indentation ‘has more than one mouth’ (as e. g., in the Mississippi delta), a ‘special measurement’-rule kicks in. 75 This is to the effect that in calculating the ‘bay-test line’, the semi-circle is to ‘be drawn on a line as long as the sum total of the lengths of the lines across the different mouths’ between the islands, so helping an indentation to qualify as a bay, as this typically reduces the total mouth distance. 76 This implicitly means, in consequential manner, that if this test is satisfied and the insularbased line segments collectively do not exceed 24 NM, this line may be the finalised closing line: with the line running from island to island rather than (just one) drawn directly between the mainland lateral points.77 Thus in this one instance the closing line is not ‘a’ line (in the singular, as mentioned in Art. 10 (4)) between the low-water marks of the natural entrance points. Again, this clearly means that as only the intervening water areas between the fringing bay islands are relevant for the distance calculation (the actual length of the individual ‘screening’ islands being irrelevant), this aspect is very favorable to the claimant State. 78 16 What, however, is unclear is the meaning of the combined phrases ‘more than one mouth’ and ‘across the different mouths’, as the ILC in its 1955 commentary talked of islands ‘at the entrance to an indentation’.79 Strangely, WESTERMAN sees ‘no locational requirements’ or need for geographic relationship with the indentation applying to qualifying islands.80 Other commentators have taken a different view.81 In any case the matter may be academic in terms of creation of internal waters, as the situation relating to ‘masking’ off-shore islands intrinsically interrelates with the laxer baseline position under Art. 7 (1) where a ‘fringe of islands’ lies in close vicinity to the coastline; which may lead independently to a straight baseline system enclosing them.82 17 Where the provisional ‘bay-test line’ is more than 24 NM wide (i. e., in a case of what has been aptly called the ‘overlarge bay’)83, internal waters by dint of Art. 10 (5) may still be claimed if the ‘straight baseline’ is drawn ‘in such a manner as to enclose the maximum area of water that is possible with a line of that length’. This seems to give great choice of a fallback baseline route for the coastal State.84 Thus this line need not, for example, be linked 74

Bouchez (note 1), 5. Westerman (note 5) 119; Reed (note 3), 253–256. 76 Reed (note 3), 254. 77 Ibid.; Westerman (note 5), 132; this (unusually) has been specifically enacted in S. 3 (2)(b) Vanuatu Maritime Zones Act, Act No. 23 (1981), which states that a closing line of a bay with more than one mouth because of the presence of islands may comprise ‘a series of closing lines across each of the mouths so as to join [the] low-water lines’, if the ‘added together’ distance in the mouth does not exceed 24 NM in total. 78 The ILC viewed such bays as more closely linked to the mainland, see ILC Commentaries to the Articles Concerning the Law of the Sea (note 22), 12, 15; cf. Westerman (note 5), 121. 79 ILC, Report of the International Law Commission, UN Doc. A/2934 (1955), GAOR 10th Sess. Suppl. 9, reproduced in: ILC Yearbook (1955), vol. II, 19, 37; cf. Westerman (note 5), 123. 80 Westerman (note 5), 128–133, includes in this process ‘islands lying geographically seaward of the mainland entrance points’; cf. UN DOALOS Baselines Study (note 3), 32 (para. 72), according to which it is ‘a matter of judgment to decide when such islands lie too far seawards to be considered as forming mouths of bays’; thus it seems to be undecided how far seaward (or, indeed, landward) of a notional ‘mainland-to-mainland’ closing line the islands must be for this purpose, cf. Reed (note 3), 298. 81 Cf. Hodgson/Alexander (note 49), discussed by Westerman (note 5), 131–138, i.e., stressing the reference to only two lateral locations stricto sensu. Per contra, Westerman (note 5), 132, states: ‘the natural entrance points [here] no longer lie solely on the mainland but at the land terminus of each entrance, however numerous these entrances may be […]’, and that the line need not be ‘continuous’; this interpretation is borne out by the travaux préparatoires to Art. 7 CTSCZ, ILC, Additif au deuxieme rapport de M. J. P. A. Francois, rapporteur special, UN Doc. A/CN.4/61/ADD.1 (1953), reproduced in: ILC Yearbook (1953), vol. II, 75, 78 (Rapport du Comité d’Experts); and by the fact that the 24 NM-rule, as applied, may in itself eliminate any islands lying too far off the general direction of a bay entrance, Westerman (note 5), 135. 82 Westerman (note 5), 140 (footnote). Her apparent conclusion seems unwarranted on this issue. 83 Reed (note 3), 306, citing as such bays (in the US) Ascension Bay in Louisiana and Cook Inlet in Alaska. 84 UN DOALOS Baselines Study (note 3), 34 (‘anywhere within the bay’); although the single straight line must clearly, by necessary implication, connect up with two opposite low-water marks within the bay; Reed 75

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to geographical features akin to natural entrance points, as is required in Art. 10 (4), even if, for example, headlands exist within the indentation. 85 It may be noted here that the reference in Art. 10 (5) is to a ‘straight baseline’ (similar to the 18 term used in Art. 7) rather than a ‘closing line’ (as used in Art. 10 (4)). 86 There seems, though, to be no substantive difference between either term, as both straight lines form the baseline from which a territorial sea is measured and both enclose internal waters (though there is no reference to the latter phrase in the paragraph). Where such a line is drawn, there is, of course, no need for the enclosed waters to pass a second semi-circle test. 87 Furthermore, if any subsidiary bays in an otherwise ‘overlarge bay’ still qualify individually as bays on the hydrographic test, and if such indentations fall outside the finalised drawn line, they may as a fallback be closed off in their own right by lines less than 24 NM wide.88 In the latter instance, any areas seaward of such lines, albeit notionally within the large ‘bay-test’ indentation, are part of the territorial sea; and the baseline in this instance will normally there be the low-tide mark. 89

3. Bays Not Covered by the Article a) ‘This article relates only to bays the coasts of which belong to a single State’. Art. 10 (1) 19 seems to state that the provisions of the article only apply to a single State. 90 The two other exceptions are dealt with separately in Art. 10 (6) and relate to historic bays and Art. 7situations discussed below. In general, any shared bays have been viewed by several writers to not even be capable of becoming juridical bays and to be enclosed with a shared artificial straight line.91 So that at most such ‘border bays’ were seen to just contain a (shared) territorial sea (unless large enough to contain a high seas pocket (or now lesser related jurisdictional enclave (e. g. an EEZ)), measured from the low-tide mark therein. 92 BOUCHEZ typically sees the exclusion of border bays as being based on possible infringement of navigation and freedom of communication with the high seas and other maritime rights; though such problems might, he thought, be avoided by virtue of joint sovereignty, division of waters etc. 93 Suggestions for changes to Art. 10 (1) were not accepted at UNCLOS III. 94 Despite this, 20 the paragraph does not explicitly rule out such border bays as having shared internal waters, at least by mutual agreement;95 but, in disputed border bay situations, States may in practice be more inclined to treat them as, at most, a shared territorial sea. 96 (note 3), 265 (footnote 242) and 308, states clearly that it is ‘not required that such lines be anchored on interior headlands’ (emphasis added) as the entire indentation has ‘already been identified as landlocked to its most seaward headlands’. It may be noted that the International Law Association Committee on Baselines under the Law of the Sea at their Washington Conference in 2014 proposed an expanded mandate to consider the interpretation and relevant State practice under the UNCLOS relating to methods adopted by States to draw a baseline within a bay. See: ILA, Report of the Committee on Baselines under the International Law of the Sea, Washington Conference (2014), para. 5. 85 In this regard Westerman (note 5), 112 seems to be misleading in her initial comment, though, clearer where she states later (ibid., 175) that the provision ‘is independent of any need to locate well-marked “entrance points”’ to serve as such terminus points within the bay; of course, the interior line may in fact be linked to other headlands within the bay proper, as was done in the British case concerning the Thames Estuary in PO v Estuary Radio (note 56) between The Naze and Foreness; cf. O’Connell (note 31), 397–398. 86 Westerman (note 5), 161. 87 Contra, e. g., Shalowitz (note 42), 223; Westerman (note 5), 170–176. 88 Reed (note 3), 308–310, the fallback-line device was, e. g., used in the case of the overlarge US bay, Cook Inlet, to close off a maximum 24 NM area. 89 Churchill/Lowe (note 18), 42. 90 Bouchez (note 1), 117 and 178–198, gives the history of this principle from 1930 onwards and examines the matter in extenso. 91 Westerman (note 5), 79; Bouchez (note 1), 117. 92 Reed (note 3), 223. 93 Bouchez (note 1), 137, 174. The Bay of Figuier, e. g., has the enclosed waters divided up into three categories under an 1879 Treaty between France and Spain, one part being under their joint sovereignty (ibid., 137). 94 Nordquist/Nandan/Rosenne (note 3), 116–117. 95 Reed (note 3), 223. 96 See, e. g. the dispute regarding the Bay of Piran situation on the border of Slovenia and Croatia.

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Part II. Territorial sea and contiguous zone

There are, however, several examples in State practice where one neighboring State has unilaterally extended a straight baseline across a border bay or indentation from its shoreline either to notionally connect up with a set (e. g. median) point in the sea or actually extending to the coastline of the adjacent State. Such practice appears to be illegal, 97 but it is arguable that any consensual closing off of shared bay waters by riparian States is acceptable; as, e. g., in the case of the 1988 Agreement between Mozambique and Tanzania which closed off the border bay of Rivuma.98 However in at least one instance (the Rio de la Plata estuary on the border between Argentina and Uruguay) even such consensual closing off of internal waters has led to international protest (see below).

b) ‘provisions do not apply to so-called “historic” bays’. Art. 10 (6) excludes so-called ‘historic’ bays from all the preceding juridical bay rules; and so not just from the 24 NM rule, but even from the bay ‘configuration’ requirements, as was decided at an early stage at UNCLOS I.99 However, no definitional criteria were then laid down concerning such bays; 100 nor were any to be inserted later in the UNCLOS. Thus the supposed rules depend on customary international law, as confirmed in the Tunisia/Libya Case. Here the ICJ affirmed that the ‘matter continue[d] to be governed by general international law which [did] not provide for a single “regime” for […] “historic bays”, but only for a particular regime for each of the concrete, recognized cases’ of such bays. Bays in fact constitute the most important form of the broader doctrine of ‘historic waters’ 101: so the doctrine of historic waters does not apply only to bays as such. Being based on customary law, the doctrine has never been codified in the law of the sea – either in the CTSCZ or in the UNCLOS – though the latter makes three express references to historic title issues. 102 Accordingly much reliance has been put on an influential UN study, the Juridical Regime of Historic Waters, Including Historic Bays (1962).103 23 The gist of the doctrine of historic bays seems to be that an indentation claimed as historic has been originally claimed in derogation of international law – an exceptional (even ‘prescriptive’) claim – at least at the time of the claim.104 It is because of this – and its effect on other States’ rights – that the quantum of proof needed relating to historic bay claims has been viewed as having to be ‘exceptionally strong’.105 24 The alleged basic international rules for existence of historic bays are formal claim, continuous (or consistent) and effective exercise of jurisdiction (of which control over navigation, and to a lesser degree, fishing106 are the most important elements),107 over a 22

97 One blatant example of this was the action of Ecuador in 1971 in the case of its claimed baseline in the southern border bay shared with Peru, which the US protested against in 1986; other examples are cited infra, note 136; on this and other ‘unilateral baseline’ situations, see Clive 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’, IJMCL 24 (2009), 457, 474. 98 Ibid., 468–470. 99 Westerman (note 5), 176; cf. ILC Report (note 79), 37. 100 See Westerman (note 5), 177; Symmons (note 24), 21–22; Bouchez (note 1), 26. 101 Tunisia/Libya Case (note 26), 18. See now the PCA, South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China), Award of 12 July 2016, para. 265, available at: http://www.pcacases.com/web/view/7, where the Tribunal recalled the 1962 UN Secretariat Memorandum on Historic Waters and affirmed that ‘historic waters’ are merely one form of historic right; and that the same rules there laid down applied “for claims to [historic] rights short of sovereignty”. 102 Symmons (note 24), 9, 17–23. 103 ILC, Juridical Regime of Historic Waters, Including Historic Bays, Study Prepared by the Secretariat, UN Doc. A/CN.4/143 (1962), reproduced in: ILC Yearbook (1962), vol. II, 1; see Symmons (note 24), 10. 104 This brings intertemporal problems today in the light of later more liberal treaty-based bay-closing rules, see Symmons (note 24), 49–64. 105 Ibid., 67–70. 106 Ibid., 194–206. 107 Ibid., 181–211; but see Case Concerning the Land, Island and Maritime Frontier Dispute (note 27), where the Gulf of Fonseca was confirmed by the ICJ to be an historic bay with internal waters despite rights therein of innocent passage; Symmons (note 24), 190–192.

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sufficient period of time,108 and with international acquiescence. The above factors were to be implicitly endorsed by the ICJ in the Case Concerning the Land, Island and Maritime Frontier Dispute,109 including the need for international acquiescence, or, as it was there expressed, ‘absence of protest from other States’.110 Among the various sub-rules, the need for publicity of historic bay claim is important – 25 possibly also requiring notification (as part of the publicity requirement) to other States. 111 Academic commentators have largely agreed with the supposed rules; 112 but unfortunately several of the sub-rules arising out of the three commonly-referred to basic rules further ‘muddy’ the requirements,113 including the time factor.114 Several of the latter issues, for example – such as the ‘time’ and ‘acquiescence’ requirements – tend to merge unsatisfactorily into each other; resulting in a close interrelationship existing between several aspects of rules and sub-rules: such as between acquiescence and the supposed need for display of commensurate jurisdiction appropriate to the type of historic claim or the principle of effective enforcement of claim etc.115 Judge ODA in his Dissenting Opinion in the Case Concerning the Land, Island and 26 Maritime Frontier Dispute doubted there ever was a doctrine of historic waters. 116 With this viewpoint the present commentator has much sympathy because of the problem as to whether a historic claim has originally to be claimed eo nomine117 – an issue which can cause logical problems over the alleged rules.118 In fact, so many aspects of the supposed international rules have problems underlying them119 that the doctrine is difficult to apply objectively in an erga omnes sense rather than on a subjective quoad hunc or opposability basis.120 The so-called concept of ‘vital bays’ has also arisen in the context of historic bays, a doctrine particularly supported by third world States to circumvent the difficulty of proving historicity of title to bays (in pre-independence periods),121 and where, consequently, the claim is made to an excessively large bay on the basis of vital interest factors. Sometimes this has been cited as a fourth factor in proving historic title,122 but at most such factors can only have a subsidiary role in proof of historic title.123 c) ‘provisions do not apply […] where the system of straight baselines provided for in 27 article 7 is applied’. Art. 10 (6) also excepts application of the bay rules to indentations relating to the straight baseline system as laid down in Art. 7. WESTERMAN states that ‘[w]hile both regimes result in the delimitation of the baseline separating internal waters and territorial waters [sic]’, Art. 7 (as now is) ‘is much broader in concept and more inclusive in scope’.124 As such, this proviso seems to be aimed at preserving the impact of Art. 7 (where, for example, headlands of a deep indentation are closed off) from the more restrictive ‘bay 108

Symmons (note 24), 117 et seq. Case Concerning the Land, Island and Maritime Frontier Dispute (note 27), 610. See now approval of these rules by the Arbitral Tribunal South China Sea Arbitration (note 101). 110 Ibid. 111 Symmons (note 24), 113–116 and 139–149. 112 Ibid., 111; State practice is analysed by several writers on historic bays, e. g. by Bouchez (note 1), 215–238, who list supposed examples of such bays; see also on this Symmons (note 24), 301 et seq. 113 Symmons (note 24), 285–287. 114 Ibid., 151–162. 115 Ibid., see respectively 285–287, 115, 174–211, 235–236. 116 Ibid., 50; Case Concerning the Land, Island and Maritime Frontier Dispute (note 27), Dissenting Opinion of Judge Oda, ICJ Reports (1992), 732, 738. 117 Symmons (note 24), 101–109. 118 Ibid., 109. 119 Ibid., 213–245 and 287, these aspects include the required international acquiescence to claim the type of required knowledge and, particularly, the type and extent of the requisite ‘acquiescence’. 120 Ibid., 242–245. 121 Cf. Bouchez (note 1), 298; Symmons (note 24), 247–257. 122 Symmons (note 24), 250–251; see the Report of the Special Master in Alaska v. United States, 541 U.S. 1008. 123 Symmons (note 24), 255–256. 124 Westerman (note 5), 178. 109

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Part II. Territorial sea and contiguous zone

rules’ in terms of a maximum mouth distance requirement and the hydrographic test. 125 However this may be, the proviso leaves significant discretion for States to, for example, ignore the Art. 7-requirement for deep indentations, and the 24 NM mouth rules which apply to bays stricto sensu, and to apply straight baselines in the case of what are in essence shallow or overlarge bays.126 Indeed, WESTERMAN admits that Art. 10 has been ‘eclipsed’ as the ‘bay provision of choice’, because of the tendency of many States to adopt the Art. 7-straight baseline system, whether or not their coastlines warrant it.127 Many former bays have also later been enclosed in more expansive baseline systems under Art. 7. Thus, for example, seven bays are now included in the later straight baselines of Canada; 128 and the latest straight baselines of South Africa (updated in 2004) enclose half of all possible South African bays (Saldanha, Hout, and Knysna Bays), prior to which six were claimed as such which all met the semi-circle test and the entrance points of which never exceeded 17 NM. 129

4. State Practice on Bays 28

Several States have claimed bays which do not satisfy the ‘semi-circle’ test. 130 Also several formerly dubious bay claims with closing lines of more than 24 NM wide exist or have later been overtaken by more expansive straight baseline claims. 131 In fact many excessive bay claims appear to be contained anyway in a more expansive straight baseline claim under Art. 7. So that, for example, the US has protested such lines (as in the case of the Burmese claim to the Gulf of Matapan); and occasionally has made protests over oversize bays stricto sensu, such as in the case of the claims of Costa Rica (in 1988), Mauritania (1967) and Sudan (1989). 132 In only a few cases does State legislation expressly refer to the Art. 10 bay provisions. 133 Several existing historic bay claims appear to be contrary to the stated international requirements (e. g.,

125 Cf. ibid. She seems to put the aim of the proviso less clearly by stating that its ‘legislative history’ [sic] ‘was intended to address the possibility that certain coasts to which the straight baseline system might be applied […] would also contain bays’, in which case the straight baseline would be drawn ‘in such a way as to ‘subsume the entire bay in the larger area of internal waters’ created by Art. 7, so that for this reason the bay rules would be inapplicable here. 126 As has Ireland, for example, in the case of Donegal Bay where the line is more than 24 NM wide but where the baseline rationale seems to be based on continuous use of the more expansive Art. 7-system; see also the practice of Republic of Korea, where some of its straight baselines under its 1965/77 maritime legislation raise questions of legality (as perceived by both China and Japan) under both Arts. 7 and 10 of the UNCLOS (e. g., the 60 NM line between Cholmyang and Shuksun-do); see also UNCLOS I, Summary Records of Meetings and Annexes, UN Doc. A/CONF.13/39 (1958), OR III, 147. 127 Westerman (note 5), 184–185. 128 Symmons (note 24), 293. 129 John R. V. Prescott, Publication of a Chart Showing the Limits of South Africa’s Maritime Claims, ICMCL 14 (1999), 557, 559; now only one South African bay (False Bay) is claimed as containing bay waters. 130 E. g., US Department of State, Straight Baselines: Dominican Republic, Limits in the Seas No. 5 (1970), 5; Churchill/Lowe (note 18), 43; cf. e. g., Ocoa Bays, Escoscesa, Yuma, Santo Domingo Bays which are claimed as historic bays; and for El Arab Bay (Egypt), see Tullio Scovazzi et al., Atlas of Straight Baselines (1989), 24 et seq.; for Dungarvan Bay in Ireland see Clive R. Symmons, Ireland and the Law of the Sea (2nd edn. 2000), 49 (footnote 63). 131 See, e. g., Formosa Bay, Scovazzi et al. (note 130), 34. These may, as seen, be disguised as being part of more expansive straight baseline claims under (now Art. 7); e. g., those of Albania, ibid., 70; Algeria, ibid., 72; Burma: Gulf of Mattapan, ibid., 88; Colombia, ibid., 108; Ecuador, ibid., 124; France, ibid., 130; Italy, ibid., 156; Madagascar, ibid., 164; Morocco, ibid., 170; Portugal, ibid., 194; Senegal, ibid., 196; Spain, ibid., 214; Vietnam, ibid., 230; Australia: Lacepede and Rivoli Bays (seemingly on an historic basis), ibid., 12; Cameroon: Bibundi, ibid., 18; Mauritania: Darguin Bank (89 NM wide), ibid., 42; Venezuela: Boca Grande Baya (98.9 NM wide), ibid., 64; Argentina: S. Jorge, 123 NM and Gulf of San Matias, 65 NM long respectively, ibid., 4 et seq., where closing lines are hypothetical; Rio de la Plata (albeit claimed as a river rather than a bay by both Argentina and Uruguay, 120 NM wide, ibid., 8; China: Gulf of Pohai, 45 NM long, ibid., 22; Ireland: Dungarvan Bay mouth 25.1 NM wide, and in the case of Donegal Bay, 24.6 NM long, Symmons (note 130), 48, 60. 132 J. Ashley Roach/Robert W. Smith, United States Responses to Excessive Maritime Claims (2nd edn. 1996), 138–143. 133 Churchill/Lowe (note 18), 55.

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by Libya to the Gulf of Sirte in 1973)134 and thus have given rise to diplomatic protest;135 or they have been retrospectively endorsed as being historic, so giving rise to problems of when such claims actually originated for the purpose of the length of claim requirement. 136 As seen, in the case of border bays there are several examples where neighboring States 29 have either unilaterally attempted to close off a border bay in part or wholly (as in the case of the Bay of Amatique claim by Guatemala in 1940 and Boca Grande border bay lying between Guyana and Venezuela),137 or by agreement with a neighbour. Even in the latter instance, such consensual closing off has led to international protests by major maritime nations, 138 as in the case of the claimed straight baseline across the Rio de la Plata estuary. 139 Often, though, border bays seem to have been considered as areas of territorial sea to be delimited laterally by agreement between the neighboring States, as, for example, in the case of the disputed Slovenian/Croatian border Bay of Piran.140

5. International Jurisprudence on Bays In the Case Concerning the Land, Island and Maritime Frontier Dispute, the ICJ opined 30 that the treaty-based provisions on bays might be found to express ‘customary law’. 141 In the 2009 Maritime Delimitation in the Black Sea Case, the ICJ pointed out (citing the 1951 Fisheries Case): ‘[T]he coastal State, in conformity with the provisions of UNCLOS, (Arts. 7, 9, 10, 12 and 15), may determine the relevant base points. It is nevertheless an exercise which always has an international aspect […].’142 Accordingly, the limited international case-law concerning bays indicates that any ‘artifi- 31 cial’ lines, i. e., straight baselines – including bay-closing lines – must accord with all the relevant UNCLOS requirements to be valid internationally. In the case cited, the ICJ did not see fit to question the validity internationally of either the Romanian- or Ukrainian-claimed baselines in a continental shelf delimitation context: even though, for example, some of the 134 Symmons (note 24), 104, 166; see also, e. g., Vietnam’s supposed historic claim to part of the Gulf of Tonking, the USSR (as then was) to Peter the Great Bay (1957), Thailand to part of the Gulf of Thailand (1959), Kenya to Ungwana Bay (1969); the dubious former Soviet Russian claim to the Gulf of Riga as a historic Bay is discussed by Anne E. Reynolds, Is Riga an Historic Bay?, IJECL 2 (1987), 20. 135 In its protest to the USSR in 1958, the US asserted concerning the historic claim there to Peter the Great Bay, that there had to be ‘a degree of acceptance on the part of the rest of the world to justify the claim’, cf. Symmons (note 24), 221. More recently, when Canada, in 1973, announced that it claimed the Bay of Fundy ‘as internal waters of Canada, on an historical basis’, the US protested, saying that it had ‘always reserved its position on this ‘inchoate claim’, see Ted L. McDorman, Notes on the Historic Waters Regime and the Bay of Fundy, in: Aldo Chircop/Ted L. McDorman/Susan J. Ralston (eds.), Essays in Tribute to Douglas M. Johnston (2009), 704 et seq. The author particularly complains that the mouth of this bay was not properly identified for the purposes of the historic claim and he notes that Canada has not relied on Art. 10, where an additional problem is that it is a ‘border bay’. 136 Cf. the Japanese protest to the USSR over its Peter the Great Bay claim, Strohl (note 24), 351; and the US against Australia over its supposed historic bay claims, Symmons (note 24), 102–106. 137 Straight baselines were here decreed by Venezuela in 1956, cf. Symmons (note 24), 472–473. Regarding the Bay of Gwatar between Iran and Pakistan, an 1871 an agreed river boundary has not led to delimitation of the bay itself, Bouchez (note 1), 143; but Iran has unilaterally extended a closing line across it to end at a supposed equidistant point in the Bay, see John R. V. Prescott, Straight Baselines: Theory and Practice, in: Eddie D. Brown/ Robin R. Churchill (eds.), The United Nations Convention on the Law of the Sea: Impact and Implementation (1987), 288, 300. The US-Canadian border bays of Passamaquoddy Bay and Fundy Bay are discussed by Bouchez (note 1), 153–156. 138 Ibid. 139 In the case of which there were protests from France, the Netherlands, the UK and the USA, see Tullio Scovazzi, Problems Relating to the Drawing of Baselines to Close Shared Maritime Waters, in: Clive R. Symmons (ed.), Selected Contemporary Issues in the Law of the Sea (2011), 15, 25. 140 Damir Arnaut, Stormy Waters on the Way to the High Seas: The Case of the Territorial Sea Delimitation between Croatia and Slovenia, in: David D. Caron/Harry N. Scheiber (eds.), Bringing New Law to Ocean Waters (2004), 427. 141 Case Concerning the Land, Island and Maritime Frontier Dispute (note 27), 588 (para. 383). 142 ICJ, Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, ICJ Reports (2009), 61, 108 (para. 137).

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Romanian straight baselines enclosed shallow indentations which would not satisfy the Art. 10 requirements.143 US case-law has discussed in several instances problems of determining natural entrance points144 and whether islands can in themselves form natural entrance points to a bay or form part of the closing line145 (several claims worldwide can be interpreted as using islands for this purpose).146 The problem of calculation of enclosed waters in the semi-circle test has been aired in US case-law, such as United States v. Louisiana147 regarding treatment of rivers flowing into a bay as well as treatment of subsidiary bays.148 In the Case Concerning the Land, Island and Maritime Frontier Dispute, the ICJ confirmed that the closing line of a bay is the baseline for whatever regime that lies seaward of it; and that to hold that the closing line of a (historic) bay is other than the ‘baseline for the territorial sea’ would be ‘incompatible with the legal status of a bay’. 149 32 Also in the Case Concerning the Land, Island and Maritime Frontier Dispute, the ICJ referred somewhat anomalously to an ‘inconsistent element’ from the 1917 judgment of the Central American Court of Justice150; inasmuch as this allowed the waters of the Gulf (as an historic bay) to be subject to ‘innocent passage’ by all ships for historical and access reasons, such rights being admittedly ‘at odds with the present general understanding of the legal status of the waters of bays as constituting “internal waters”’ 151 – a viewpoint criticized by this commentator elsewhere.152 In re-affirming the doctrine of historic waters, the ICJ stated that the waters of the Gulf of Fonseca ‘continue[d] to be subject of that acquiescence of other nations’ to which the 1917 Judgment refer[red], for the court was unaware of a differing view by a third State’;153 and it recited with approval an earlier statement in the 1982 Tunisia/ Libya Case;154 that historic titles must ‘enjoy respect’.155 33 In the North Atlantic Fisheries Case, DR. DRAGO had opined that historic bays were a class distinct and apart from other bays, with ‘particular circumstances such as geographical configuration, immemorial usage and, above all, the requirements of self-defense’ justifying such a ‘pretension’; and in the same case he recommended a ten mile-rule for bays. 156 Similar in tone, in the Case Concerning the Land, Island and Maritime Frontier Dispute of 1917 the Central American Court of Justice referred to ‘vital interests’ necessary to determine the

143

As, e. g., near the Bay of Musura, cf. Symmons/Reed (note 73), 96. The need for two identifiable headlands has led to judicial discussion in US case law, as in United States v. Louisiana (note 37) in the case of more complex geographical situations, particularly in the case of a multiheaded or double-headed indentation as was the case in: United States v. Alaska (note 122), relating to Harrison Bay; discussed by Reed (note 3), 231–233, 266–267. The author describes this bay as the only one of its kind to have been ‘considered by the courts’; and here the Special Master accepted the longer and exterior Alaskanclaimed line where the position of headlands could have affected the hydrographic test in regard to depth of penetration of the waters in question and the finalized 24 NM line; see also judicial consideration in United States v. Louisiana (note 37) in the case of relative straight coasts where the question arose whether the most seaward minor protrusions were the appropriate points. 145 Cf. Reed (note 3), 286–297. 146 E. g., the claim by France for Djibouti to enclose the Gulf of Tadjoura, see Scovazzi et al. (note 130), 122. 147 United States v. Louisiana, Report of the Special Master of 31 July 1974. 148 See supra, note 58; and the lengthy discussion by Reed (note 3), 241–248 and 312 (footnote 329), regarding river areas not being judicially considered in calculation of enclosed semi-circle waters (in respect of river channels of the Mississippi emptying into East Bay not being included as part of the relevant waters calculation in United States v. Louisiana (note 37)). 149 Case Concerning the Land, Island and Maritime Frontier Dispute (note 27), 199, 605 (para. 417, see also paras. 411, 416, 419, 420). 150 Central American Court of Justice, Costa Rica v. Nicaragua, Judgment of 30 September 1916, AJIL 11 (1917), 181, 229; Central American Court of Justice, El Salvador v. Nicaragua, Opinion and Decision of 9 March 1917, AJIL 11 (1917), 181, 229 and 674–730. 151 Case Concerning the Land, Island and Maritime Frontier Dispute (note 27), 593 (para. 393). 152 Symmons (note 24), 190 et seq. 153 Case Concerning the Land, Island and Maritime Frontier Dispute (note 27), 593 (para. 394). 154 Tunisia/Libya Case (note 26), 589. 155 Ibid., 73. 156 The North Atlantic Coast Fisheries Case (note 23), 167 et seq.; see also Bouchez (note 1), 101–102. 144

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Ports

Gulf’s international status.157 The recent US case of Alaska v. US (2005) involves the fullest discussion yet – albeit in a more domestic law federal context – of the supposed rules which underlie the doctrine of historic waters.158

Article 11 Ports 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. Off-shore installations and artificial islands shall not be considered as permanent harbour works. Bibliography: Peter B. Beazley, Maritime Limits and Baselines: A Guide to their Delineation (2nd edn. 1978); Chris Carleton, Problems Relating to Non-Natural and Man-Made Basepoints under UNCLOS, in: Clive R. Symmons (ed.), Selected Contemporary Issues in the Law of the Sea (2011), 31–68; Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); Myres S. McDougal/William T. Burke, Public Order of the Oceans (1962); Erik Franckx, Belgium and the Law of the Sea, in: Tullio Treves (ed.), The Law of the Sea: The EU and Its Member States (1997), 37–96; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Michael W. Reed, The Development of International Maritime Boundary Principles through United States Practice, in: US Department of Commerce, Shore and Sea Boundaries, vol. III (2000); Tullio Scovazzi, Baselines, MPEPIL, available at: www.mpepil.com; Robert Jennings/Arthur Watts (eds.), Oppenheim’s International Law (9th edn. 1992); Marjorie Whiteman (ed.), US Department of State: Digest of International Law, vol. IV (1965) Documents: ILA, Report of the Committee on Baselines under the Law of the Sea, Sofia Conference (2012); ILC, Report of the International Law Commission, UN Doc. A/2934 (1955), GAOR 10th Sess. Suppl. 9, reproduced in: ILC Yearbook (1955), vol. II, 19–62; ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45; UN DOALOS, Baselines: An Examination of the Relevant Provisions of the Law of the Sea (1989); US Department of State, Measurement of the U.S. Territorial Sea, Department of State Bulletin 1044 (1959) Cases: Dubai/Sharjah Border Arbitration, Arbitral Award of 19 October 1981, ILR 91, 543; ICJ, Fisheries Case (United Kingdom v. Norway), Judgment of 18 December 1951, ICJ Reports (1951), 116; ICJ, Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment of 3 February 2009, ICJ Reports (2009), 61; ITLOS, Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), Request for Provisional Measures, Doc. ITLOS/PV.03/02/CORR.1 (2003); PCA, Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), Decision of 1 September 2005, RIAA XXVII, 133; United States v. California, 432 U.S. 40 (1977); United States v. California, 447 U.S. 1 (1980); United States v. Alaska, 521 U.S. 1 (1997) Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘For the purpose of delimiting the territorial sea’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘outermost permanent harbor works’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) ‘outermost permanent’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) ‘harbor’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) ‘works’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘integral part of the harbor system’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Do Artificial Structures Possess Low-Tide Baselines Anyway? . . . . . . . . . . . . . . . . . . . 5. Meaning of ‘Harbor’ or ‘Port’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. ‘Off-Shore Installations and Artificial Islands’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. State Practice and International Jurisprudence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

157 158

1 5 6 6 7 7 8 9 10 15 16 17 18

El Salvador v. Nicaragua (note 150), 700. See Symmons (note 24), x-xii.

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1–3

Part II. Territorial sea and contiguous zone

I. Purpose and Function This article – in similar fashion to Art. 8 Convention on the Territorial Sea and the Contiguous Zone (CTSCZ) – is the sole article dealing with baselines concerning man-made constructions, essentially in a harbor system (though, as will be seen, non-harbor constructions may also be implicitly included). These may constitute basepoints for baselines as part of the normal baseline referred to in Art. 5 (i. e., the low-water line) with which feature such constructions are intrinsically inter-connected. 1 2 What is strange – in the light of its title ‘Ports’ – is that the article omits to state whether a port or harbor may have a straight baseline drawn across its mouth (connecting the outermost harbor works on both sides) so as to contain internal waters in a similar way to bays, as is expressly allowed under the archipelagic provisions, Art. 50. Art. 50 refers back to Art. 11 as though provision for closing lines is there permitted, 2 and it is generally agreed that this was a mere treaty oversight, and that implicitly ports and harbors may be straightbaselined as provided for by Art. 50, which expressly allows archipelagic States to do so in their archipelagic waters.3 Indeed, the joining of the outermost harbor works by a straight line was seen by the International Law Commission (ILC) as permissible at an early stage in 1954,4 though just which structures (harbor works) may be used for this purpose may be problematic.5 It is thus unfortunate that there was not an additional provision dedicated to this important basepoint function of artificial harbor structures. In referring to the outer harbor works and their having to be an ‘integral part’ of the ‘harbor system’, it is made clear that artificial constructions detached from such a system are not generally to be considered as basepoints, a matter now reinforced by the second provision in the article stating that ‘offshore islands and artificial islands’ are not part of the harbor system. 3 The article is silent on the issue of artificial baselines not connected with harbors: such as use of reclaimed land for basepoint purposes, such as on the Hook of Holland, 6 or where 1

1 Cf., Michael W. Reed, The Development of International Maritime Boundary Principles through United States Practice, in: US Department of Commerce, Shore and Sea Boundaries, vol. III (2000), 55–56.; as to this relationship, see US Supreme Court, United States v. California, 447 U.S. 1, 6 (1980), where the Supreme Court held that open-piled piers do not conform to the ‘general rule for establishing a baseline’ as ‘piers’ in the absence of a low-water line did not fall within the ambit of the normal baseline in a way similar to the other baseline articles which deal with natural basepoints. The Report of the International Law Association Committee on Baselines under the Law of the Sea from the 2012 Sofia Conference has commented that the case that ‘harbor works constitute part of the normal baseline is fairly clear cut’, and that the structures referred to in the first sentence of Art. 11 are to be considered ‘part of the low-water line on the baseline from which the territorial sea is measured’, see: ILA, Report of the Committee on Baselines under the Law of the Sea, Sofia Conference (2012), 26. In the Dubai/Sharjah Border Arbitration, Arbitral Award of 19 October 1981, ILR 91, 543, 661, the arbitral tribunal stressed that ‘outermost permanent harbour structures should be considered as part of the land for the purposes of drawing baselines’ (emphasis added) in the light of the history of Art. 11. 2 Cf., e. g., UN DOALOS, Baselines: An Examination of the Relevant Provisions of the Law of the Sea (1989), 34, features ‘regarded as forming part of the coast’. In a similar way, there is no explicit mention here that such artificial structures may be part of a normal baseline (under Art. 5) as being part of the coast, or an appropriate linking point under an Art. 7-straight baseline system. 3 See, e. g., Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 47; UN DOALOS Baselines Study (note 2), 34 (para. 77). 4 Cf. Marjorie Whiteman (ed.), US Department of State: Digest of International Law, vol. IV (1965), 262. 5 As in the case of San Pedro port and the status of Long Beach breakwater in California, see Reed (note 1), 319–321, who points out that the law of the sea treaties do not give ‘specific objective guidance’ in these cases as in the analogous instance of choice of natural entrance points in the case of bays (Art. 10). 6 Chris Carleton, Problems Relating to Non-Natural and Man-Made Basepoints under UNCLOS, in: Clive R. Symmons (ed.), Selected Contemporary Issues in the Law of the Sea (2011), 31, 52. In the oral pleadings of the Land Reclamation Case, Malaysia’s agent noted that the question of ‘land reclamation’ was not dealt with specifically in UNCLOS at all: ITLOS, Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), Request for Provisional Measures, Doc. ITLOS/PV.03/02/CORR.1 (2003), 13. For a recent discussion of coastal protective works, land reclamation and artificial extensions of a baseline, see ILA Report (note 1), 27–28. This Report noted that there was a need for further clarification concerning the

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coastlines have been artificially protected to stop erosion; 7 or where artificially-created spoil banks or jetties/piers (detached from a harbor) radiate from the coast; 8 but it seems that, by analogous application, outer limits of such land areas could lawfully be used to generate maritime zones even if not part of a harbor complex. Past examples – where a territorial sea has been extended thereby – seem in general to have been acquiesced in by the international community.9 However those off Singapore have not been used for delimitation purposes in the case of Singapore’s agreed boundaries with Malaysia and Indonesia. 10 Perhaps, indeed, more generally, any dubiously-qualifying artificial structures may have 4 their status solved either bilaterally or multilaterally through principles of acquiescence and even recognition by other interested States. This principle comes out of the recent judgment of the International Court of Justice (ICJ) in the Black Sea Case, where the Court pointed out that not only had Romania notified the United Nations under Art. 16 of use of the end of Sulina Dyke as a baseline for its territorial sea, but that this choice of baseline ‘was not contested by Ukraine’.11 The provisions in Art. 8 CTSCZ and Art. 11 UNCLOS were impliedly found to be part of international customary law in the Dubai/Sharjah Arbitration (1981).12

II. Historical Background Art. 11 had a relatively uncomplicated drafting history.13 The origin of the present wording 5 (in its first clause) was Art. 8 CTSCZ, which largely reflected the wording proposed by the Second Committee of the Hague Codification Conference,14 based on ILC recommendations which viewed the provision as reflecting the existing ‘positive law’.15 The second sentence was added at UNCLOS III to make it clear that ‘off-shore loading and unloading points are not considered as harbour works’.16 The latter addition was noted by the ICJ in the Black Sea Case, and there described as a ‘minor change’ from the 1958 CTSCZ regime. 17 The title ‘Ports’ (an undefined term) was added in the Revised Single Negotiating Text at UNLOS III. 18 ‘normal baseline’ in response to possible sea level rise and ‘artificial extension of existing coasts’, eg., through land reclamation (ibid., 1). 7 Carleton (note 6), 32. 8 See Reed (note 1), 198–200. 9 Cf. Carleton (note 6), 52, 65, who concludes that although there is no international jurisprudence on the matter, it is to be ‘assumed’ that States do consider such man-made extensions to ‘form an integral part of the baseline’; and, in any event, such reclaimed areas are often contained within an already-enclosed stretch of water landward of territorial sea baselines, as in the case of Japan, so having no effect on limits of seaward zones; see also infra, note 67. 10 Carleton (note 6), 53. In the Malaysia/Singapore Settlement Agreement of 26 April 2005, Land Reclamation Case (note 6), Annex to the Decision of 1 September 2005, RIAA XXVII, 133, 141, it is stated, for instance, in the preamble, that a group of independent experts would conduct a study on the effects of Singapore’s reclamation works and to propose appropriate measures to deal with any ‘adverse effects’ from such; and, in Art. 8, that Singapore ‘reassures Malaysia that even after the Pulau Tekong reclamation, the safe and smooth passage of ships through Kuala Johor and Clader Harbour will not be adversely affected by the said reclamation’ (emphasis added). 11 ICJ, Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment of 3 February 2009, ICJ Reports (2009), 61, 107 (para. 135). 12 Dubai/Sharjah Border Arbitration (note 1), the arbitration tribunal had to apply customary law in that case; see Churchill/Lowe (note 3), 48. 13 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 120–121; see also Myres S. McDougal/William T. Burke, Public Order of the Oceans (1962), 419–424. 14 See Whiteman (note 4), 261–262; and the Dubai/Sharjah Border Arbitration (note 1), 661, where the tribunal stressed the ‘complete agreement’ between the 1930 proposals on this matter and the provisions of the CTSCZ and UNCLOS. 15 Whiteman (note 4), 262. 16 Nordquist/Nandan/Rosenne (note 13), 122. 17 Black Sea Case (note 11), 106–107 (para. 134). 18 Nordquist/Nandan/Rosenne (note 13), 122.

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Part II. Territorial sea and contiguous zone

III. Elements 1. ‘For the purpose of delimiting the territorial sea’ 6

This wording indicates that in essence the article is aimed at clarifying what man-made structures in a harbor complex may be used as basepoints from which maritime zones such as the territorial sea may be drawn; but it also incidentally could indicate what parts of such a complex could be used as the equivalent of natural entrance points of bays where closing lines are drawn across the mouths of ports and harbors to delineate internal waters – as seen, an implicit right under the UNCLOS.19

2. ‘outermost permanent harbor works’ 7

a) ‘outermost permanent’. The word ‘permanent’ here does not connote total permanence;20 though it would appear that even any originally-intended long-lasting structures (such as piers)21 may lose basepoint value if they become derelict. Normally a solid structure, at any rate, will be presumed to have sufficient permanence. In the recent Black Sea Case, for example, the ICJ stated that the ‘permanent nature’ of the dyke in question there (Sulina Dyke) had ‘not been questioned’.22 More crucial, then, is the proper interpretation of harbor works ‘which form an integral part of the harbour system’ (emphasis added).

8

b) ‘harbor’. Firstly, the double reference to ‘harbor’ (‘habor works’ and ‘harbor system’) in the first clause of Art. 11 might seem to indicate that only harbor installations stricto sensu are being referred to. However, in State practice a liberal interpretation has been made of this wording so as to include structures not strictly connected to harbors (such as isolated piers, breakwaters and groynes attached to the land). 23 By contrast, in the recent ICJ judgment in the Black Sea Case, the Court, whilst pointing out that the expression ‘harbour works’ is not defined either in the CTSCZ or UNCLOS, added that they ‘are generally installations which allow ships to be harboured, maintained or repaired and which facilitate the embarkation and disembarkation of passengers and the loading or unloading of goods’.24 The use, however, of the word ‘generally’ by the Court indicates a vagueness remaining as to what is included, even when a structure is not connected with shipping activities.25 It may be noted that US case law has interpreted the previous equivalent of Art. 11 (namely, Art. 8 CTSCZ) as never being intended to cover all artificial coastal 19 See UN DOALOS Baselines Study (note 2), 34 (paras. 76 et seq.). Peter B. Beazley, Maritime Limits and Baselines: A Guide to their Delineation (2nd edn. 1978), 24, points out that harbor entrances will normally be narrow anyway, so not affecting outer limits of territorial waters, but important for fixing the limits of internal waters; and that the bay rules could have analogous application here. 20 See US case law on this aspect, US Supreme Court, United States v. Alaska, 521 U.S. 1 (1997), 290, where the US had argued only permanent harbor works (in the case of Arco Pier, Alaska) were recognized as basepoints; cf. Reed (note 1), 141; further in United States v. Alaska, ibid., 321 the Special Master opined that ‘permanent’ meant simply something ‘other than temporary’, and did not necessarily mean ‘forever’ or ‘perpetual’; and that Arco Pier, which featured as a potential basepoint in that case, was intended for long-range or indefinite use; the point also came up in the US Supreme Court case United States v. California (note 1), 6, as to whether the piers there met the ‘permanency’ requirement, the Special Master concluded they were permanent for the purposes of the litigation; see Reed (note 2), 195. 21 Carleton (note 6), 34, 47, indicating that where a man-made structure has disappeared, it loses any erstwhile basepoint value. 22 Black Sea Case (note 11), 106 (para. 133). 23 See, e. g., Carleton (note 6), 43–44, citing the Oosterschelde in the Zeeland Estuary.For a recent extensive discussion of the meaning of ‘harbor works’, see ILA Report (note 1), 28 et seq. 24 Black Sea Case (note 11), 106 (para. 133). 25 As indicated in US case law see, e. g., United States v. California (note 1), where it was found that most Californian piers were built and used as recreational structures and not intended to provide shelter for vessels; see also Reed (note 1), 196.

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structures, such as certain Californian piers which did not protect, enclose or shelter areas adjacent to the coast; and therefore were not harbor works. 26 c) ‘works’. In the Black Sea Case, the ICJ stated that ‘the term “works” denotes a 9 combination of apparatus, structures and facilities installed for a specific purpose’. 27

3. ‘integral part of the harbor system’ More problematic is the meaning of what constitutes an ‘integral part’ of the harbor system. 10 The UN-Baselines Study, in defining ‘harbour works’ themselves, referred rather repetitiously to ‘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.’28 However, as seen, some of the here-listed structures, such as sea walls and breakwaters, may not even be part of a harbor system at all, and so not be associated with port facilities as such: for example, merely being used as coastal defences, as in the Netherlands; 29 or they may be built purely for recreational use (see below). However, all the latter structures may, as seen, still qualify as basepoints in the light of present State practice.30 Training walls, for example, which help maintain river flow and channel depth are one example of works which may not be directly related to harbor structures.31 Here the case of the Sulina Dyke which featured in the Black Sea Case is relevant, despite the fact that in this case the ICJ found it not to be part of a harbor installation,32 though in such an instance it could be argued that such a structure may still be considered an integral part of, for example, any riverside port insofar as it helps maintain navigational access thereto.33 The ICJ noted in the abovementioned case that the functions of a dyke are different from those of a port, but also noted that ‘the […] dyke may of use in protecting shipping destined for the mouth of the Danube and for ports situate there’.

Here the Court cited the travaux pre´paratoires of the ILC Rapporteur in 1954 to the effect that ‘dykes used for the protection of the coast [constituted] a separate problem and did not come under either Art. 9 [CTSCZ] (ports) or Art. 10 [CTSCZ] (roadsteads).’34

However, despite the above dictum indicating some port–protection function by the dyke in question, in the final analysis the ICJ stated (somewhat paradoxically) that there was ‘no convincing evidence […] presented that this dyke serve[d] any direct purpose in port activities’.35 26

United States v. California (note 1), 7; see Reed (note 1), 196. Black Sea Case (note 11), 106 (para. 133). UN DOALOS Baselines Study (note 2), 56 (para. 38); the ILC in its commentary had pointed out that even permanent structures jutting out to sea from land (such as jetties and dykes) are ‘assimilated to harbour works’, restated by Whiteman (note 4), 262; this problem is interconnected with the distance to which installations extend from the coast, see infra, notes 40, 41; Churchill/Lowe (note 3), 47, state rather vaguely that the harbor works must be ‘attached’ to the coast or ‘at least very close’ to it. 29 Carleton (note 6), 43. 30 See supra, notes 9, 23, and 25; but not all commentators agree; see, e. g., Tullio Scovazzi, Baselines, MPEPIL, para. 7, available at: http://www.mpepil.com, alleging that Art. 11 ‘applies only to harbour works’ and ‘not to other artificial structures which are built along the coast but serve different purposes’; see also the Malaysian argument in Land Reclamation Case (note 6), 11, 13, discussed infra, note 63; Beazley (note 19), seems to view jutting-out jetties etc. along a coast as ‘protection works’ and so assimilated to harbor works, if only because they tend to ‘obscure’ the natural low-water line. 31 Carleton (note 6), 45; and McDougal/Burke (note 13), 425: ‘protective works’ may be included ‘even when they are isolated structures’ as these are not usually ‘extensive’. 32 Black Sea Case (note 11), 108 (para. 140); Carleton (note 6), 65. 33 Carleton (note 6), 47. 34 Black Sea Case (note 11), 106 et seq. (para. 134); likewise Reed (note 1), 190, suggests that whilst in US practice breakwaters that form artificial harbors (such as Los Angeles harbor) are valid baselines, this is less clear in the case of similar constructions built to ‘discourage erosion of beaches’. 35 Black Sea Case (note 11), 108 (para. 138). 27 28

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Further interpretational difficulty resides in the fact that some structures, such as piers, may be used essentially for pleasure and recreational purposes, but also have berthing and landing-stage facilities (i. e., ship-based activities) at their terminals; and so more closely resemble harbors.36 There also now exist certain near-shore artificial islands constructed purely for tourist purposes and connected to the mainland by a causeway or a bridge which may also be considered to be potential territorial sea basepoints, as, e. g., the ‘World Project’ in the United Arab Emirates or (before being detached), Jumeirah Palm Island. 37 12 A further problem may also arise if such seaward-radiating structures are of excessive length; and so are thus less directly linked to the main harbor complex. 38 It may be noted that the ICJ in the Black Sea Case cited an expert stating at the 1958 Geneva Conference that ‘jetties [could be regarded] as […] land territory’ (together with the ILC comment in its report to the General Assembly); but the Court said it did not wish to ‘state an opinion’ for qualification under this provision where ‘such structures are of excessive length’, such as a ‘jetty extending several kilometers into the sea’, as did the Sulina Dyke in that case (7.5 km long).39 Indeed, the Court emphasized, in this context, the vagueness inherent in the vital phrase ‘integral part of the harbour system’. As it commented: ‘In the light of the above [travaux préparatoires], the ILC did not, at the time, intend to define precisely the limit beyond which a dyke, jetty or works would no longer form a ‘integral part of the harbour system’.40 13 The key issue here, then, is again the true meaning of ‘integral’. In combination with the rider in the second sentence of Art. 11, this epithet obviously excludes off-shore installations and artificial islands, as they are considered to be separate from the coast 41 (including those covered by Arts. 60 and 80). However, the word would seem to include mooring facilities at the end of structures running out from the main harbor works – and so attached directly to the landmass42 – if used as terminals. This is in contrast to oil rigs etc. which, as seen, are clearly included as exploration/exploitation platforms under Arts. 60 and 80, thus only having security zones round them. Even jetties and piers which are on piles (rather than being a solid causeway) and which support a roadway radiating out to sea may be an essential part of the harbor works, particularly as they often have a berthing terminal at the end for 11

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See e. g., Carleton (note 6), 48. Ibid., 58; but cf. the status of Rincon Island (California) which featured in United States v. California (note 1), 7, in the case of which the piers and complex on the island were held by the Supreme Court in the case as being ‘neither harborworks nor harbors’ and thus not an integral part of a ‘harbor system’; this was also held not to be part of the coast although attached to mainland by a bridge. Cf. Carleton (note 6), 59; Reed (note 1), 196, also on the status of bridges linking structures to the coast generally. 38 This problem interrelates with the more general meaning of ‘integral’, see Carleton (note 6), 43; on the ‘excessive length’ issue, see e. g., Robert Jennings/Arthur Watts (eds.), Oppenheim’s International Law (9th edn. 1992), para. 193; see also the UK worries on excessive jetty length in ILC, Report of the International Law Commission, UN Doc. A/2934 (1955), GAOR 10th Sess. Suppl. 9, reproduced in: ILC Yearbook (1955), vol. II, 19, 58. In the Dubai/Sharjah Border Arbitration (note 1), 662, the tribunal noted that the harbor works of Dubai (about one and a half miles long) extended about half a mile seaward; cf. also McDougal/Burke (note 13), 419, stating a main problem is where outer harbor installations ‘project into the sea for a considerable distance, i. e., several miles’. 39 Black Sea Case (note 11), 106 et seq. (para. 134); ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12, 16. 40 Black Sea Case (note 11), 106 et seq. (para. 134). 41 See, e. g., Nordquist/Nandan/Rosenne (note 13), 122; and McDougal/Burke (note 13), 422, who comment that the ‘works’ must be ‘physically connected’ with the coast in order to qualify as basepoints. 42 See the comment of George E. Pearcy in: US Department of State, Measurement of the U.S. Territorial Sea, Department of State Bulletin 1044 (1959), 963, 966–968, concerning piers and breakwaters ‘connected with the shore itself or an installation on the shore’ which are connected to structures such as above-water off-shore terminals; cf. Reed (note 1), 52–53, who refers to United States v. California (note 1) where exceptionally the Special Master accepted that the above-water end of the Zuniga jetty – which was partly submerged – could be considered an entrance point to San Diego Bay, as this structure helped the servicing of visiting vessels for the purpose of loading/unloading cargo; see Nordquist/Nandan/Rosenne (note 13), 122, such seaward terminals may also even convey substances via pipelines to the coast. 37

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unloading or loading of cargo43 (even when such constructions go miles out to sea);44 though US practice is not in accord on such open-piled structures. 45 The modern trend towards construction of extensive – and more multi-purpose – seaward 14 man-made structures is obviously creating an additional interpretative problem for the future,46 particularly in terms of ‘creeping jurisdiction’ where existing long structures are later made even longer. Thus in the Black Sea Case, the Court concluded cautiously that in the light of earlier statements: ‘[T]here are grounds for proceeding on a case-by-case basis, and […] the text of Article 11 of UNCLOS and the travaux préparatoires do not preclude the possibility of interpreting restrictively the concept of harbour works so as to avoid or mitigate the problem of excessive length identified by the ILC.’47

4. Do Artificial Structures Possess Low-Tide Baselines Anyway? Another (albeit technical) problem thrown up by man-made basepoints is whether – if 15 their outer limits are constantly surrounded by sea – they truly have a ‘low-water line’ for the purposes of Art. 5 (i. e., as being part of the normal baseline): not only because of there being merely a vertical rise and fall of the tide at the same location, but additionally because the waterline itself may not be continuous, particularly in the case of open pile-type piers. As seen, US case-law seems to doubt whether a piling structure has such a line as part of the ‘coast line’,48 even when such piers are marked as actual territorial sea basepoints on official US charts;49 but there are many instances, of course, where even natural coastal projections – such as cliffs – fall vertically into deep water (like the end of a pier often does), but remain as territorial sea basepoints.

5. Meaning of ‘Harbor’ or ‘Port’ A ‘harbor’ (as indeed ‘port’)50 is here left undefined in the article; but the key element in 16 both expressions is a sheltered area protecting vessels and giving anchorage and docking facilities51 – a function which also flavours the meaning of ‘harbour works’ as described by the ICJ in the Black Sea Case.52

6. ‘Off-shore installations and artificial islands’ This wording was added at UNCLOS III to reinforce the meaning of what does not 17 constitute an integral part of a harbor system. It has been stated, somewhat broadly, that this wording was to ‘make clear that offshore loading and unloading points are not considered as 43 Though, of course, as seen, not all jetties are ‘closely associated with a natural harbor, or haven for vessels’ so as to be part of the coastline, Reed (note 1), 55, 194; see also Carleton (note 6), 41. 44 E. g., Saudi Arabia’s Ra’s Al Ju’aymah LPG terminal; cf. Carleton (note 6), 41. 45 See Carleton (note 6), 51. In the US Supreme Court case United States v. California, 432 U.S. 40 (1977), the US argued successfully that ‘open-pile’ piers were invalid baselines, the Special Master finding that although the CTSCZ was silent on the issue, such formations did not create any interest in the surrounding waters, having no ‘harbor-like function’ nor ‘continuous waterline’ and so should not be basepoints; see also Reed (note 1), 55; but he also points out that the intentional gaps left in solid-built jetties to allow passage through of small craft has not prevented their acceptance as harbor works, ibid., 191. 46 As Reed (note 1), 190, points out more generally, ‘just what “artificial” features are to be regarded as forming “part of the baseline” is “not always clear” in the convention reference’. 47 Black Sea Case (note 11), 106 et seq. (para. 134). 48 See supra, note 45. 49 Reed (note 1), 56; Carleton (note 6), 33. This seems to negate the plain meaning of Art. 11, as they still constitute ‘coast’. 50 This is defined in the UN DOALOS Baselines Study (note 2), 60 (para. 65), as a ‘place provided with various installations, terminals and facilities for loading and discharging cargo or passengers’. 51 See Carleton (note 6), 35. 52 See Black Sea Case (note 11), 106 (para. 133).

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harbor works’.53 However, as seen above, certain near off-shore terminals – of which an increasing number are being built – if connected to harbor installations by roadways or jetties/ piers at least, may be part of the harbor complex as compared with single point moorings, lines of dolphins or submerged turrets for use in loading/unloading large-ship cargo off-shore, even if merely connected by pipeline to the mainland: as in the case, e. g., of the Sea Islands terminal which is at least one and a half miles off Saudi Arabia.54 As it has been commented, this wording would not strictly apply to far-out oil and gas rigs as such as they are already covered by Arts. 60 and 80.55 Thus, most commentators agree that a structure must normally be ‘physically attached to the mainland coast’ to have any basepoint value. 56

7. State Practice and International Jurisprudence As seen, State practice has given a broad meaning to harbor works, so including even structures connected to the mainland but away from harbors (such as breakwaters and piers), as valid territorial sea basepoints57 (though, as noted, US case-law has treated certain coastallyconnected constructions as not constituting harbor works). In some instances even recent additions to ports have been included in the baseline, such as in the case of the second extension of the mole off the Belgian harbor of Zeebrugge in 1970; in the case of which the outermost permanent harbor works are now 3.3 km seaward from a line connecting the normal baseline on both sides of the port, considerably expanding territorial waters in the area as official charts show.58 19 There have been no clear examples of challenges to the use of artificial structures for this purpose (even from the US) except in a maritime delimitation context such as the Malaysia/ Singapore dispute,59 concerning the delimitation of the western boundary in the Straits of Johor and the effect of Singapore’s land reclamation works when Malaysia filed a case for provisional measures with International Tribunal for the Law of the Sea. Although the Court decreed certain such measures, the case was settled before it could come to an Annex VIITribunal.60 However, in the oral pleadings, it was argued for Malaysia that an artificial coastline could not constitute a delimitation basepoint in the absence of being connected with ‘harbor works’ because of the wording of Art. 1161 and, more generally, that the question of ‘land reclamation’ was not dealt with specifically in the UNCLOS at all. 62 20 Some States have claimed rights in their legislation under this article. For example, Tuvalu in S. 2 (2) of its Marine Zones (Declaration) Ordinance (1983) states that ‘permanent harbour works that form an integral part of a harbour system shall be regarded as part of the coast, installations or artificial islands’.63 It seems, then, that most man-made structures used as territorial sea basepoints have either been acquiesced in or accepted by other States, especially where these have been notified to the UN under Art. 16. However, as was noted in this very context in the Black Sea Case by the ICJ, although in the first instance a coastal State may determine its own relevant basepoints (quoting the Fisheries Case64), this is ‘nonetheless 18

53

Nordquist/Nandan/Rosenne (note 13), 122. See Carleton (note 6), 38–39. 55 Nordquist/Nandan/Rosenne (note 13), 122. 56 E. g., McDougal/Burke (note 13), 422. 57 See supra, MN 3. 58 See Erik Franckx, Belgium and the Law of the Sea, in: Tullio Treves (ed.), The Law of the Sea: The EU and its Member States (1997), 38–39. 59 Land Reclamation Case (note 6), 52. 60 Carleton (note 6), 55. 61 See the argument of Professor James Crawford in Land Reclamation Case (note 6), 7, 11, where he emphasised that at the start of the dispute in 1980 there was no such artificial coastline in existence. 62 See the argument by Professor Nicolaas J. Schrijver in the Land Reclamation Case (note 6), 13. 63 See also S. 2 (2) Solomon Islands Delimitation of Marine Waters Act, Act No. 32 (1978). 64 ICJ, Fisheries Case (United Kingdom v. Norway), Judgment of 18 December 1951, ICJ Reports (1951), 116, 132. 54

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an exercise which has always an international aspect’ (as in the case of all claimed baselines).65 Despite this, the implied tenor of the judgment in that case is that in essence, possibly at least because of the absence of protest there, the seaward end of the dyke was seemingly viewed as a valid Romanian territorial sea basepoint by the Court; its use having not been ‘contested’ by Ukraine.66 In delimitation agreements, artificial structures have often not been discounted – as in the 21 UK-French agreement on Dover Strait and the similar one with Belgium. 67 This is not surprising as such basepoints, as seen, can be considered as technically part of the normal low-tide baseline and so may prima facie influence any median/equidistance line. Thus in the Dubai/Sharjah Border Arbitration, the tribunal – after referring to the illustrations of State practice on this issue in the pleadings on the effect of harbor works on a delimitation of boundaries – stated that this showed that ‘there is a body of practice, and of conventional law, in which full effect has been given to harbour works in the construction of maritime boundaries’ between States,68 and that giving full effect to them would not (in the case of the harbor works of both disputing States) produce an inequitable result. 69 In the Black Sea Case, though, the ICJ indicated that artificial basepoints – such as the 22 Sulina Dyke – used by one party to a maritime dispute as a territorial sea basepoint may be discounted in a maritime boundary delimitation dispute because of the otherwise inequitable result.70 Romania had argued that the equidistance line in the Black Sea should take account of the ‘seaward end of Sulina Dyke’,71 relying particularly on the fact of this baseline having been previously communicated to the UN under Art. 16 for the purpose of measuring the territorial sea.72 Surprisingly, even Ukraine itself had accepted use of it by Romania for the purposes of determining a provisional equidistance line;73 and, what is more, had not contested the use of Sulina as a Romanian territorial sea basepoint. 74 The Court accepted that the dyke was a permanent work, but seemingly not as part of integral ‘harbor works’. 75 In so doing, as seen above, the Court made several useful interpretations of the wording of Art. 11. However, on the delimitation issue, the Court finally decided to take account of its basepoint at the landward end where it adjoined the mainland, opining that the ‘specific characteristics of the seaward end’ of this dyke ‘irrespective of its length’, ruled it out as a relevant basepoint for a provisional equidistance line.76 It is noteworthy, however, that in so doing, the ICJ stressed that the issue of determining baselines ‘for the purpose of measuring the breadth’ of maritime zones and delimitation of the exclusive economic zone and continental shelf between adjacent/opposite States ‘are two different issues’. 77

65

Black Sea Case (note 11), 108 (para. 137). Ibid., 107 (para. 135). 67 See, e. g., Carleton (note 6), 60–61, citing, inter alia, the detached mole in Dover harbor having been given full weight as part of the UK baseline for delimitation purposes with France; in the UK/Belgian continental shelf delimitation the extended harbor works from Zeebrugge, and also Ostende, were taken into account, cf. Franckx (note 58), 39. 68 Dubai/Sharjah Border Arbitration (note 12), 662. 69 Ibid. 70 See Carleton (note 6), 62. 71 Black Sea Case (note 11), 103 (para. 123) and 106 (para. 130), as seen above, the construction extended extensively (7.5 km) to sea. 72 See supra, note 58. 73 Black Sea Case (note 11), 104 (para. 125). 74 Ibid., 107 (para. 135). 75 Ibid., 106 (para. 133). 76 Ibid., 108 (para. 137). 77 Ibid. 66

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Article 12 Roadsteads 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. Bibliography: Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); Gilbert Gidel, Le droit international public de la mer, vol. II (1932–1934); Myers S. McDougal/William T. Burke, The Public Law of the Oceans (1962); Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); J. Ashley Roach/Robert W. Smith, United States Responses to Excessive Maritime Claims (2nd edn. 1996); Marjorie Whiteman (ed.), US Department of State: Digest of International Law, vol. IV (1965); Ru¨diger Wolfrum, Germany and the Law of the Sea, in: Tullio Treves (ed.), The Law of the Sea: the European Union and its Member States (1997), 199–224 Documents: ILC, Report of the International Law Commission, UN Doc. A/2693 (1954), GAOR 9th Sess. Suppl. 9, reproduced in: ILC Yearbook (1954), vol. II, 140–173; ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45; League of Nations, Territorial Waters, Basis of Discussion Drawn up for the Conference by the Preparatory Committee, LN Doc. C.74.M.39.1929.V (1929); UN DOALOS, Baselines: An Examination of the Relevant Provisions of the Law of the Sea (1989) Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Meaning of ‘Roadstead’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘normally used for loading, unloading and anchoring’ . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘situated wholly or partly outside […] the territorial sea’ . . . . . . . . . . . . . . . . . . . . . . . 4. ‘are included in the territorial sea’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. State Practice and International Jurisprudence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 3 3 4 5 7 9

I. Purpose and Function 1

The purpose of this article, which corresponds with Art. 9 Convention on the Territorial Sea and the Contiguous Zone (CTSCZ), is not concerned with baselines from which the territorial sea is measured,1 but with creating a possible extension to the outer limits of the general territorial sea where a roadstead – normally a safe anchorage adjacent to (but separate from) a port a short distance from the coast2 – is claimed by a coastal State.3 In such an instance the roadstead itself becomes part of that State’s territorial sea because of the 1 UN DOALOS, Baselines: An Examination of the Relevant Provisions of the Law of the Sea (1989), 34 (para. 78); cf. the Hague Codification Conference 1930, which described ‘roadsteads’ as sea areas from which loading and unloading of ships took place, but originally proposed that ‘territorial waters’ were to be measured from ‘the exterior boundary of [such a] roadstead’; however, following a UK-based amendment, the Second Committee stated that such waters were contained in the ‘territorial sea’, League of Nations, Territorial Waters, Basis of Discussion Drawn up for the Conference by the Preparatory Committee, LN Doc. C.74.M.39.1929.V. (1929), 47; see further Marjorie Whiteman (ed.), US Department of State: Digest of International Law, vol. IV (1965), 266–267. 2 See Gilbert Gidel, Le droit international public de la mer, vol. II (1932–1934), 22–25; though he viewed them as part of internal waters if not delimited arbitrarily. The ILC, in a commentary to their 1954 Report, stated it did not wish to include roadsteads in internal waters as it ‘wished to preserve the right of innocent passage’. The ILC further considered that coastal State rights were sufficiently safeguarded by the recognition of such waters as territorial sea as opposed to internal waters, ILC, Report of the International Law Commission, UN Doc. A/2693 (1954), GAOR 9th Sess. Suppl. 9, reproduced in: ILC Yearbook (1954), vol. II, 140, 156; cf. Whiteman (note 1), 270. 3 UN DOALOS Baselines Study (note 1), 34. (para. 78).

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relative proximity to the coast, whether wholly or partly detached from it. Such zones have rightly been said to have ‘very limited practical application’4 and few exist in practice particularly since the advent of a 12 NM territorial sea. 5

II. Historical Background The history of this provision is well-documented.6 In substance, the article is based on the 2 1930 Hague Codification Conference Text.7 At UNCLOS I the main controversies relating thereto concerned roadsteads situate wholly outside the territorial sea 8 and whether they created merely a territorial sea enclave surrounded by the High Seas. 9 One change made (apart from the addition of the head ‘Roadsteads’ to the article) from the 1958 CTSCZ at the UNCLOS was a drafting and re-positioning issue: namely, the removal of the second sentence in Art. 9 CTSCZ which had stated that: ‘The coastal State must clearly demarcate such roadsteads and indicate them on charts together with their boundaries, to which due publicity must be given.’10 This was done as part of a more a general ‘tidying-up’ exercise to collect together all such zonal publicity obligations into one dedicated article.

III. Elements 1. Meaning of ‘Roadstead’ This had been defined in the UN-Baselines Study as ‘an area near the shore where vessels 3 are intended to anchor in a position of safety; often situated in a shallow indentation of the coast’.11 Because of possible lack of natural geographically-defining limits in such areas – i. e., being generally situated in the open sea – there is now (as seen above) an obligation under the UNCLOS to show them on charts or by way of geographical coordinates (� Art. 16). 12

2. ‘normally used for loading, unloading and anchoring’ The adverb ‘normally’ was added by the ILC at its 7th session in 1955. 13 The addition of 4 the word to the text of Art. 12 applies extra objectivity to assessment of the legality of any such claimed areas of sea; and approximates the purposes of such zones directly to those regarding ports and harbors. It has been argued that the three words loading, unloading and 4 Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 48; see also Myres S. McDougal/ William T. Burke, Public Order of the Oceans (1962), 424. 5 One of the few recent examples is the roadstead claimed by Australia near the port of Karumba in Queensland in 2000, see infra, note 27. 6 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 124–125; Whiteman (note 1), 263–267. 7 Ibid., 270; ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12, 16. 8 ILC Law of the Sea Articles with Commentaries (note 7). 9 McDougal/Burke (note 4), 425–426; Whiteman (note 1), 272–273. 10 This sentence was dropped in UNCLOS III, Revised Single Negotiating Text (Part II), UN Doc. A/CONF.62/ WP.8/REV.1/PART II (1976), OR V, 151; see also Nordquist/Nandan/Rosenne (note 6), 125. The gist of this publicity obligation is now contained in Art. 16: (‘lines of delimitation in accordance with articl[e] 12’); for an isolated example in more recent times, see the notification by Australia in 2000 relating to a claimed roadstead near the port of Karumba, UN DOALOS, Law of the Sea Information Circular No. 16 (2002), 25. 11 UN DOALOS Baselines Study (note 1), 47. 12 Nordquist/Nandan/Rosenne (note 6), 125; see Symmons on Art. 16 MN 6, which differs in the wording from that in Art. 9 CTSCZ essentially in allowing roadstead ‘lines of delimitation’ to be indicated by geographical coordinates instead of on charts. 13 This qualification did not appear in the inherited Hague Codification Conference text (1930), restated by Whiteman (note 1), 126; the UK had in 1955 suggested the word ‘substantially’ should be added, cf. Whiteman (note 1), 269.

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anchoring need not be fulfilled simultaneously, but only alternatively and disjunctively; 14 as in a case where no loading or unloading occurred in a claimed deep-water roadstead off the German coast, merely anchorage of ships.

3. ‘situated wholly or partly outside […] the territorial sea’ The 1930 Hague Codification Conference proposals dealt only with roadsteads partly outside the general belt of territorial sea;15 but in 1954 this areal limit was expanded by the ILC to include such areas even outside the ‘outer limit of the territorial sea’. 16 As roadsteads generally exist in the proximity of the coast, they were likely to have more relevance when and where more modest territorial sea distances were claimed (i. e., the 3 NM breadth). Now that most States claim 12 NM, the existence and need for such zones, as stated above, seems to be largely gone, as in the case of the past German claim to a roadstead where the extension of the German territorial sea to 12 NM from 3 NM meant a significant part of the controversial roadstead was then absorbed into the main German territorial sea. 17 6 Where a ship is at anchor in a claimed roadstead, it has been argued that the coastal State has extensive jurisdiction over it in view of the fact that it may be viewed as technically no longer in (innocent) passage.18 As Art. 18 (1)(a) indicates, a ship may only be in such ‘passage’ if it is traversing a territorial sea without ‘calling at a roadstead’, but may be in such passage if it is proceeding ‘to or from’ a ‘call at a roadstead’.19 5

4. ‘are included in the territorial sea’ Despite some UNCLOS I attempts to provide that waters intervening between a roadstead wholly beyond the general territorial sea (i. e., that generated from conventional baselines) and the roadstead’s territorial sea should have the same legal status as that of the roadstead regime itself, this was rejected; so that any such intervening waters are unaffected in terms of freedom of navigation.20 To date, only one claim seems to have been made which included closure lines out to a roadstead situated outside a general territorial sea line; and that was by the (then) Federal Republic of Germany in 1984. This led to a strong protest from the US, but only on the basis that it was illegal to enclose an outlying roadstead situated wholly outside the ‘general territorial sea’ as part of the latter. 21 Suggestions that roadsteads should have the same regime as ports and constitute ‘internal waters’ were rejected at an early stage in the provision’s history.22 8 Whether a roadstead is includable wholly in the territorial sea, or is a separate detached and enclaved part of it, depends on whether the roadstead as claimed overlaps with the general (coastally-based) territorial sea claim of a State. 23 If the two areas overlap, the effect 7

14 Ru ¨ diger Wolfrum, Germany and the Law of the Sea, in: Tullio Treves (ed.), The Law of the Sea: The European Union and its Member States (1997), 199, 203; he further argues that the German claim (infra, note 25) was justified in the interests of traffic safety, but this is a controversial assertion. 15 Whiteman (note 1), 268. 16 Ibid. 17 See Wolfrum (note 14), 204. 18 See McDougal/Burke (note 4), 419, emphasise that in a roadstead a coastal State’s jurisdiction is not as extensive as in a port; see also ILC Law of the Sea Articles with Commentaries (note 7), 16 (Art. 9), which stated that a coastal State should be able to exercise special supervisory and police rights in such roadsteads. 19 See further, Barnes on Art. 18 MN 6. 20 An attempt by the Netherlands to propose the main territorial sea zone should be extended to include and swallow up a notionally detached roadstead, rather than to leave an enclave surrounded by high seas, was rejected at the UNCLOS I: Netherlands: Proposal, UN Doc A/CONF.13/C.1/L.67 (1958), OR III, 230; Whiteman (note 1), 272–273. 21 J. Ashley Roach/Robert W. Smith, United States Responses to Excessive Maritime Claims (2nd edn. 1996), 126. 22 ILC Law of the Sea Articles with Commentaries (note 7), 16 (Art. 9). 23 UN DOALOS Baselines Study (note 1), 125.

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of using the roadstead’s outer limits as part of the territorial sea will be to create a bulge of such limits in that location, like the effect of a low-tide elevation. If the roadstead is wholly detached – a situation now increasingly unlikely, as seen – an intervening space of international waters (formerly high seas) will interpose between the two territorial sea regimes. 24

5. State Practice and International Jurisprudence There is very little State practice, and no international jurisprudence, on Art. 12. An 9 exception to this was the attempt by Germany in 1984 to justify an extension of its territorial sea to 16 NM in one area by claiming inclusion therein of an off-shore roadstead there; but this was tacitly withdrawn in 1994 when the area became largely absorbed by the new 12 NM limit of territorial sea and the intervening waters between the 12 NM territorial sea and roadstead were converted to an EEZ.25 In a protest note in 1985, the US had stated that it refused to recognize any aspect of the German move to extend its territorial sea beyond 12 NM; and that: ‘[T]he waters lying between an outlying roadstead and the general territorial sea are not territorial in nature, and the high seas freedoms applicable to those intervening waters cannot be prejudiced by the coastal State.’26 One of the few announced instances since 1985 of a detached roadstead was that of 10 Australia; which in 2000 deposited under Art. 16 a list of co-ordinates of points for drawing the extended outer limits of the territorial sea in the southern area of the Gulf of Carpentaria to include the part of the roadstead near the port of Karumba in Queensland and giving the outer limits of the claimed roadstead, as established under its proclamation of 28 August 2000 under the Seas and Submerged Lands Act, 1973.27

Article 13 Low-tide elevations 1. 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. 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. 2. Where a low-tide elevation is wholly situated at a distance exceeding the breadth of the territorial sea from the mainland or an island, it has no territorial sea of its own. Bibliography: Nuno Antunes, The Importance of the Tidal Datum in the Definition of Maritime Limits and Boundaries, IBRU Maritime Briefing 2(7) (2000); Peter B. Beazley, Maritime Limits and Baselines: A Guide to their Delineation (2nd edn. 1978); Peter B. Beazley, Reefs and the 1982 Convention on the Law of the Sea, IJECL 6 (1991), 281–312; Peter B. Beazley, Technical Aspects of Maritime Boundary Delimitations, IBRU Maritime Briefing 1(2) (1994); Derek W. Bowett, The Legal Regime of Islands in International Law (1979); Derek W. Bowett, Islands, Rocks, Reefs and Low-Tide Elevations in Maritime Boundary Delimitations, in: Jon I. Charney/ Lew M. Alexander (eds.), International Maritime Boundaries, vol. I (1993), 131–151; Eddie D. Brown, Seabed Energy and Mineral Resources and the Law of the Sea: The Areas within National Jurisdiction, vol. I (1984); Eddie D. Brown, The International Law of the Sea, vol. I (1994); Robin R. Churchill, Law of the Sea, ICLQ 37 (1988), 412–420; Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); Diane Disierto, The Jurisdictional Rubicon: Scrutinizing China’s Position Paper on the South China Sea Arbitration – Part I, 24 See McDougal/Burke (note 4), 420; there was a move by some States at UNCLOS I to designate even the interposing area as part of the territorial sea, see Whiteman (note 1), 271. 25 Proclamation of 11 November 1994 by the Government of the Federal Republic of Germany concerning the extension of the breadth of the German territorial sea, UN DOALOS, LOSB No. 27 (1995), 55 et seq.; Wolfrum (note 15), 204; cf. Churchill/Lowe (note 4), 48; and Roach/Smith (note 21), 126–128. 26 Note dated 15 March 1985, cf. Roach/Smith (note 21), 126, 128. 27 Australian Maritime Zone Notification 36 (2000), reproduced in: UN DOALOS, LOSB No. 45 (2001), 45 et seq.

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EJIL:Talk! Blog 29 January 2015, available at: http://www.ejiltalk.org/the-jurisdictional-rubicon-scrutinizing-chinas-position-paper-on-the-south-china-sea-arbitration/; Hartini Dipla, Le regime juridique des iles dans le droit international de la mer (1984); Harm M. Dotinga/Alfred H. A. Soons, The Netherlands and the Law of the Sea, in: Tullio Treves (ed.) The Law of the Sea: The European Union and its Member States (1997), 365–426; Erik Franckx, Belgium and the Law of the Sea, in: Tullio Treves (ed.), The Law of the Sea: The European Union and Its Member States (1997), 37–96; Michael Gagain, Climate Change, Sea Level Rise and Artificial Islands: ‘Saving the Maldives’ Statehood and Maritime Claims through the ‘Constitution of the Oceans’, Colo. J. Int’l Envtl. L. & Pol’y (2012), 77–120; David H. Gray, The Use Or Abuse of ‘Normal’ Territorial Sea Baselines (2008), available at: http://www.iho.int/mtg_docs/com_wg/ABLOS/ABLOS_Conf5/Papers/Session7-Paper2-Gray.pdf; David Hancox/ J. R. Victor Prescott, A Geographical Description of the Spratly Islands and an Account of Hydrographic Surveys amongst those Islands, IBRU Maritime Briefing 1(6) (1995); Elisio B. Jamine, Maritime Boundaries Delimitation, Management and Dispute Resolution: Delimitation of the Mozambique Maritime Boundaries with Neighbouring States (Including the Extended Continental Shelf) and the Management of Ocean Issues (2006–2007); Hiran W. Jayewardene, The Regime of Islands in International Law (1989); Robert Jennings/Arthur Watts (eds.), Oppenheim’s International Law (9th edn. 1992); Sophia Kopela, 2007 Archipelagic Legislation of the Dominican Republic, IJMCL 24 (2009), 501–533; Barbara Kwiatkowska, The Eritrea-Yemen Arbitration: Landmark Progress in the Acquisition of Territorial Sovereignty and Equitable Maritime Delimitation, ODIL 32 (2001), 1–25; Roberto Lavalle, Not Quite a Sure Thing: the Maritime Areas of Rocks and Low-Tide Elevations under the UN Law of the Sea Convention, IJMCL 19 (2004), 43–69; Hugo I. Llanos, Low-Tide Elevations: Reassessing their Impact on Maritime Delimitation, Pace International Law Review 14 (2002), 256–272; Alan V. Lowe, The United Kingdom and the Law of the Sea, in: Tullio Treves (ed.), The Law of the Sea: The European Union and its Member States (1997), 521–554; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Daniel P. O’Connell, The International Law of the Sea, vol. I (1982); Gregory Poling, The Legal Challenge of China’s Island Building, Asian Maritime Transparency Initiative (2015); Michael W. Reed, The Development of International Maritime Boundary Principles through United States Practice, in: US Department of Commerce (ed.), Shore and Sea Boundaries, vol. III (2000); Clive Schofield, The Trouble with Islands: the Definition and Role of Islands and Rocks in Maritime Delimitation, in: Seoung-Yong Hong/Jon M. Van Dyke (eds.), Maritime Boundary Disputes, Settlement Processes and the Law of the Sea (2009), 19–38; Sandra H. Shaw/Daniel J. Dzurek, Charts in the Law of the Sea, in: Dorinda G. Dallmayer/Louis DeVorsey (eds.), Deciding and Drawing Maritime Boundaries (1989), 15–24; Clive R. Symmons, The Maritime Zones of Islands in International Law (1979); Clive R. Symmons, Some Problems Relating to the Definition of ‘Insular Formations’ in International Law: Islands and Low-Tide Elevations, IBRU Maritime Briefing 1(5) (1995), 1–32; Clive R. Symmons, When is an ‘Island’ not an ‘Island’ in International Law: The Riddle of Dinkum Sands in the Case of US v. Alaska, IBRU Maritime Briefing 2(6) (1999); Clive R. Symmons, Ireland and the Law of the Sea (2nd edn. 2000); Yoshifumi Tanaka, The International Law of the Sea (2nd edn. 2015); Prosper Weil, Les haut fonds decourant dans la delimitation maritime, a propos des paragraphes 200–209 de l’arret de la Cour Internationale de Justice du 16 Mars 2001 en L’Affaire de la Delimitation Maritime et Questions Territoriales Entre Qatar et Bahrein, in: Nisuke Ando/Edward McWhinney/Ru¨diger Wolfrum (eds.), Liber Amicorum for Judge Shigeru Oda, vol. I (2002), 307–321; Marjorie Whiteman (ed.), US Department of State Digest of International Law, vol. IV (1965); Ru¨diger Wolfrum, Germany and the Law of the Sea in: Tullio Treves (ed.), The Law of the Sea: The European Union and Its Member States (1997), 199–224 Documents: IHB, Manual on Technical Aspects of the United Nations Convention on the Law of the Sea – 1982 (4th edn. 2006); IHO, Regulations of the IHO for International Charts and Chart Specification of the IHO (2013), available at: http://www.iho.int/iho_pubs/standard/S-4/S-4_e4.4.0_EN_Sep13.pdf; ILA, Report of the Committee on Baselines under the International Law of the Sea, Washington Conference (2014); ILA, Report of the Committee on Baselines under the International Law of the Sea, Sofia Conference (2012); ILC, Deuxie`me rapport de M. J.P.A. François, rapporteur spe´cial, UN Doc. A/CN.4/61 (1953), reproduced in: ILC Yearbook (1953), vol. II, 57; ILC, Troisie`me rapport de M. J.P.A. François, rapporteur special, UN Doc. A/CN.4/77 (1954), reproduced in: ILC Yearbook (1954), vol. II, 1; ILC, Report of the International Law Commission, UN Doc. A/2693 (1954), GAOR 9th Sess. Suppl. No. 9, reproduced in: ILC Yearbook (1954), vol. II, 140–173; UN DOALOS, Baselines: An Examination of the Relevant Provisions of the Law of the Sea (1989); US Department of State, Measurement of the U.S. Territorial Sea, Department of State Bulletin No. 1044 (1959) Cases: ICJ, Minquiers and Ecrehos Case (France v. United Kingdom), Judgment of 17 November 1953, ICJ Reports (1953), 47; ICJ, Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment of 16 March 2001, ICJ Reports (2001), 40; ICJ, Case Concerning Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment of 8 October 2007, ICJ Reports (2007), 659; ICJ, Case of Sovereignty over Pedra Branca/ Pulau Batu Puteh, Middle Rocks, and South Ledge (Malaysia/Singapore), Merits, Judgment of 23 May 2008, ICJ Reports (2008), 12; ICJ, Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment of 19 November 2012, ICJ Reports (2012), 624; PCA, Award of the Arbitral Tribunal in the First Stage – Territorial Sovereignty and Scope of the Dispute (Eritrea v. Yemen), 9 October 1998, available at: http://www.pca-cpa.org/showpage 6e71.html?pag_id=1160; PCA, Award of the Arbitral Tribunal in the Second Stage – Maritime Delimitation (Eritrea v. Yemen), 17 December 1999, RIAA XXII, 335; PCA, South China Sea Arbitration (Republic of the

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Philippines v. People’s Republic of China), Award of 12 July 2016, available at: https://www.pcacases.com/web/ view/7; Post Office v. Estuary Radio Ltd, [1968] 2 QB 740, 761 (UK); United States v. Louisiana, 363 U.S. 1 (1960); United States v. Alaska, 521 U.S. 1 (1997) Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Definition of the Term ‘Low-Tide Elevation’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) ‘naturally formed area’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) ‘area of land’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) ‘surrounded by […] water’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d) ‘above water at low tide but submerged at high tide’. . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘situated wholly or partly at a distance not exceeding the breadth of the territorial Sea’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Function of the Low-Water Line of the Elevation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. LTEs and Publicity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Waters Behind and Seaward of LTEs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. Low-Tide Elevations and Maritime Delimitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. State Practice and International Jurisprudence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 4 5 5 6 7 10 11 19 28 28 30 31 32

I. Purpose and Function It has been stated that this article is ‘another example’ of where a coastal State may use 1 other than the normal baseline.1 However, it may be argued that the baseline here has an affinity with the normal baseline insofar as it does not come into the residual category of ‘artificial’ basepoints or straight baselines permissible in Arts. 7 and 9–11. This is because where a low-tide elevation (as here defined and hereafter referred to as a ‘LTE’) is situated wholly or partly within the territorial sea of the mainland or an island stricto sensu, it is allowed to generate a territorial sea from its low-water line in a similar way to an island; and in this sense may be dubbed a ‘fictive island’ as earlier definitions (as at the 1930 Hague Codification Conference) indicated.2 Indeed, some States have treated any intraterritorial 3 LTEs as if they were islands; such as Belize in its legislation, 4 although in definitional terms (despite having to be ‘naturally formed’ and ‘surrounded by’ water), LTEs differ greatly from true islands in that they only normally surface at low tide, not at high tide.Similarly, early codification attempts, such as in 1930, tended to approximate LTEs (as now known) to islands proper.5 ANTUNES aptly remarks that the phrase – ‘may be used as the baseline for measuring the breadth of the territorial sea’ – can be seen as ‘an implicit allusion to Article 5’ which, using the same phrase, defines the normal (low tide) baseline by reference to official charts.6 1 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 127. 2 See Marjorie Whiteman (ed.), US Department of State: Digest of International Law, vol. IV (1965), 297, 306 making reference to: ILC, Second Report on the Regime of the Territorial Sea by J. P. A. François, Special Rapporteur, UN Doc. A/CN.4/61 (1953), where intraterritorial ‘elevations of the seabed’ (i. e., those within territorial sea distance of a mainland or island) were said to be ‘treated as islands’ and the fact several States then favored treating drying rocks as ‘islands’ for all purposes. 3 See ibid., for the meaning of this term here and elsewhere in this commentary. 4 See UN DOALOS, Legal Information Relevant to UNCLOS, LOSB No. 21 (1992), 3; and, e. g., the legislation of the Bahamas infra, note 69; also Clive R. Symmons, Some Problems Relating to the Definition of ‘Insular Formations’ in International Law: Islands and Low-Tide Elevations, IBRU Maritime Briefing 1(5) (1995), 1, 7; and Hartini Dipla, Le regime juridique des iles dans le droit de la mer (1984), 69, stating that LTEs are ‘en principe assimile´s aux ˆıles’ if situated within the territorial sea of other land. 5 See Symmons (note 4), 14. 6 Nuno Antunes, The Importance of the Tidal Datum in the Definition of Maritime Limits and Boundaries, IBRU Maritime Briefing 2(7) (2000), 1, 14.See now the Award on the Merits in the Philippines v. China: PCA, South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China), Award of 12 July 2016,

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Hence in such an intraterritorial instance there is a similar notional coalescence of mainland and LTE-generated territorial sea as happens in the case of islands; though here, as its effect is ‘geographically limited to [its] coastal location’, such coalescence is essentially ‘parasitic’.7 For the latter reason – and because a LTE does not autonomously generate any maritime zones, but only in conjunction with the general territorial sea regime 8 – it is only in the latter way that it may generate the major maritime zones. So that, as will be seen, for this reason there is no analogy with Art. 121 (3) on uninhabitable rocks9 (which are to be considered as ‘islands’). This feature of ‘parasitic’ attachment to waters within a territorial sea avoids any anomaly with the rule under Art. 121 (1) concerning certain rocks (outside the territorial sea) being disqualified from generating the major maritime zones. 3 Under Art. 13 (2), where such a formation is situated wholly outside the territorial sea, unlike an island it generates no maritime zones for its owner; and thus is treated, in effect, as part of the seabed.10 Nonetheless, similar to a near off-shore island, the permissible use of this more seaward basepoint, if it is intraterritorially situated (even marginally), will create a bulge in the mainland/island generated territorial sea (and possibly other) limits and so enhance maritime jurisdiction in that area.11 2

para. 331, available at: https://www.pcacases.com/web/view/7, where the arbitral tribunal commented that although UNCLOS ‘gives important weight to published nautical charts’, and Art. 5 ‘provides for States to use the low-water line on large-scale charts as the baseline for the territorial sea’, the provision ‘envisages a situation in which a Stater is presenting information concerning its own coastlines in areas which can be expected to be well surveyed’;but that considerations ‘of an altogether different nature arise where [as in the case], a determination involves the status of remote features,subject to the demands of competing States, that have been carefully surveyed only infrequently’. 7 Symmons (note 4), 4–7; cf. Hugo I. Llanos, Low-Tide Elevations: Reassessing Their Impact on Maritime Delimitation, Pace International Law Review 14 (2002), 256, 258, stating that as a sort of ‘adjunct’ to the normal low-tide baseline a qualifying LTE may generate territorial sea from its baselines. 8 Some commentators seem to wrongly ignore this important factor and maintain – because of the provision in Art. 121 (3) depriving ‘rocks’ of EEZ/continental shelf-regimes – that a fortiori LTEs, even seemingly if intraterritorially placed, must be discounted for such purposes: cf. Dipla (note 4), 23, 43; and Roberto Lavalle, Not Quite a Sure Thing: the Maritime Areas of Rocks and Low-Tide Elevations under the UN Law of the Sea Convention, IJMCL 19 (2004), 43–46, who confusingly seems to view such formations as ‘proximate’, but without the capacity to generate EEZ/continental shelf in an ‘autonomous’ manner: see further Eddie D. Brown, Seabed Energy and Mineral Resources and the Law of the Sea: the Areas within National Jurisdiction, vol. I (1984), para. 1.4.23. As LTEs can only ever generate jurisdiction in a parasitic fashion – and never autonomously – the whole of this sort of argument seems somewhat spurious: cf. Derek W. Bowett, Islands, Rocks, Reefs and Low-Tide Elevations in Maritime Boundary Delimitation, in: Jon I. Charney/Lew M. Alexander (eds.), International Maritime Boundaries, vol. I (1993), 130, 147–148, stating that such elevations ‘represent the land-mass’ and so create no autonomous title to maritime areas; see also Llanos (note 7), 262.See now the Award on the Merits the South China Sea Arbitration (note 6), para. 308, where the arbitral Tribunal commented that although Art. 13 (2) does not expressly state that a LTE is ‘not entitled to an [EEZ] or continental shelf’, this ‘restriction is necessarily implied in [UNCLOS]’. 9 For example, it has been argued that the transference of the identical LTE article wording from the more restrictive 1958 zonal regime into that of UNCLOS needs to take account of the new phenomena of 200 NM EEZs and a more extensive continental shelf: Lavalle (note 8) views this factor as not being explicitly addressed in UNCLOS in the case of LTEs; but in fact such jurisdictional capacity is at least necessarily implicit because Art. 13 shares the standardised reference to ‘territorial sea’ generation as in other UNCLOS articles, such as Art. 5, which in turn is picked up seriatim in the case of the more extensive zones definitions, such as the EEZ under Art. 57. 10 Symmons (note 4), 6. It may be noted that in the ICJ, Case Concerning Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment of 8 October 2007, ICJ Reports (2007), 659, 720 et seq. (paras. 202, 219, 245, 248), the Court repeated what it had said in the ICJ, Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment of 16 March 2001, ICJ Reports (2001), 40, concerning ‘features which are not permanently above water’ (emphasis added) and lying outside territorial waters, which were distinguishable from ‘islands’. The Court confirmed that four disputed cays were above high tide and thus ‘islands’ (ibid., 702 (para. 136)), but that there was an insufficiency of evidence as to the identity of a ‘number of other maritime features in the disputed area’ (ibid., 702 (para. 138), and that it was not in a position to ‘make a determinative finding on the maritime features in dispute’ apart from four named islands (ibid., 704 (para. 144)). See also Sophia Kopela, 2007 Archipelagic Legislation of the Dominican Republic, IJECL 24 (2009), 501, 506. 11 The effect may be significant depending, of course, on the distance of the LTE out to sea, cf. David H. Gray, The Use Or Abuse of ‘Normal’ Territorial Sea Baselines (2008), 5, available at: http://www.iho.int/mtg_docs/

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II. Historical Background The article exactly reproduces the low-tide elevation provision in Art. 11 Convention on 4 the Territorial Sea and the Contiguous Zone (CTSCZ); and at UNCLOS III there was little in the way of proposals put forward to change the wording. The history of this article is well documented.12 Originally, the phrase of the International Law Commission (ILC) to describe the relevant elevations was ‘drying rocks and shoals’.13 The wording ‘wholly or partially’ within the territorial sea came about as a later ‘compromise solution’14 in view of the abovenoted support at an earlier stage to analogise LTEs with islands; and happened without complete ILC ‘unanimity’.15

III. Elements 1. Definition of the Term ‘Low-Tide Elevation’ The elements of the definition are contained in the opening sentence of Art. 11 (1) 5 CTSCZ, namely ‘a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide’. Their now-verbatim repeated definition in the UNLOS may indicate that the definition of LTEs is, indeed, now part also of customary law. 16 a) ‘naturally formed area’. This phrase must be interpreted in the same way as in the case 6 of the definition of islands in Art. 121 (1). In other words, to generate any maritime zones at all, the formation must not have been artificially created, such as a spoil heap, to create its above low-tide appearance.17 The only exception to this requirement of natural protrusion above low-water level is under Art. 7 (4) where, in a straight-baseline context, lighthouses or similar installations permanently above sea level should normally have been built on LTEs to enable them to have basepoint value.18 This issue has now been discussed in the Award in Philippines v. China South China Sea Arbitration (Merits, 2016). There, the arbitral Tribunal stated that a point necessarily following from the LTE’s definition in Art. 13 was that this indicated that the status of such a feature was to be ‘evaluated on the basis of its natural condition’; and that as a ‘matter of law, human modification cannot change the seabed into a [LTE]’; and that a LTE ‘will remain a [LTE] under [UNCLOS], regardless of the scale of the com_wg/ABLOS/ABLOS_Conf5/Papers/Session7-Paper2-Gray.pdf, who comments that belated use by Canada, in 1986, of two small (previously-overlooked) LTEs on the Labrador Reef, 2.5 NM off the coast, could give Canada an extra 55 square miles of territorial sea in consequence. 12 Nordquist/Nandan/Rosenne (note 1), 127; Whiteman (note 2), 297 et seq. 13 ILC, Report of the International Law Commission, UN Doc. A/2693 (1954), GAOR 9th Sess. Suppl. No. 9, reproduced in: ILC Yearbook (1954), vol. II, 140, 156; Whiteman (note 2), 307. 14 ILC, Troisie `me rapport de M. J.P.A. François, rapporteur special, UN Doc. A/CN.4/77 (1954), reproduced in: ILC Yearbook (1954), vol. II, 13 et seq.; Whiteman (note 2), 300, 306. 15 Michael W. Reed, The Development of International Maritime Boundary Principles through United States Practice, in: US Department of Commerce, Shore and Sea Boundaries, vol. III (2000), 215. 16 Dipla (note 4), 232; UN DOALOS, Baselines: An Examination of the Relevant Provisions of the Law of the Sea (1989), 58 (para. 49). 17 Compare the analogous problem relating to build-up of LTEs so as to purportedly become ‘islands’ because of the artificial heightening, as e. g., in the case of Subi Reef in the Spratly Islands, amongst the Thitus Reef group, which is clearly a LTE although China has constructed above-high water constructions there, cf. Symmons (note 4), 2–3. See also Talmon on Art. 121 MN 19–26. In the arbitration brought by the Philippines against China concerning the South China Sea, the Philippines statement of claim alleged that certain submerged features, under present Chinese occupation, are at best mere LTEs, even if they have ‘artificial islands’ constructed on top of them: PCA, The Republic of the Philippines v. The People’s Republic of China, Notification and Statement of Claim of 22 January 2013, para. 14, available at: https://seasresearch.wordpress.com/2014/12/17/2nd-press-release-from-pca-the-arbitral-tribunal-sets-further-proceedings/. See also Award on Merits (note 6). 18 Symmons (note 4), 3; and further Clive R. Symmons, The Maritime Zones of Islands in International Law (1979), 29, 35.

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island or installation built atop it’.19 The Tribunal noted that many of the features in the South China Sea had been ‘subjected to substantial human modifications as large islands constructed on top of coral reefs’; so that in some cases, ‘it would likely no longer be possible to directly observe the original status of the features, as the contours of the reef platform have been entirely buried by millions of tons of landfill and concrete’. In such circumstances the Tribunal decided that ‘[UNCLOS] requires that the status of a feature be ascertained on the basis of its earlier, natural condition, prior to the onset of significant human modification’. 20 b) ‘area of land’. The term ‘low-tide elevations’ (proposed by the US at UNCLOS I) 21 was substituted at UNCLOS I for the original phrase favored by the ILC in their draft Art. 11 CTSCZ, namely ‘drying rocks and drying shoals’,22 so that qualifying elevations need no specific geological make-up or size.23 Thus, apart from rocks, such formations may include sand, mud, coral etc. – in fact any terrestrially-formed shoals appearing at low water. 24 The phrase ‘of land’ also is contained in the definition of an island in Art. 121 (1). As, in essence, ‘land’ in such instances means that the formation must have a terrestrial composition, problems here may exceptionally arise (as also in the case of islands) where part of the natural components are formed, for example, from ice, as in the case of Dinkum Sands off Alaska where the tiny formation in question was composed of alternating layers of frozen sea-water and gravel deposits (in US v. Alaska)25. The impermanency of this was illustrated by ‘thermo-erosion’ and so ‘ice collapse’ in a summer period.26 In such a case arguably the ‘excess ice’ has to be discounted in assessing the low-tide status as it does not have a truly terrestrial and permanent nature. 8 An allied question relating to LTE ‘land’ status is whether they are equivalent to ‘territory’ in international law, and so capable of appropriation.27 This question arose in the 2001 Case Concerning Maritime Delimitation and Territorial Questions Between Qatar and Bahrain, where an acknowledged LTE, Fash ad Dibal, was situated in the overlapping territorial sea of both contesting States; and in the case of which Bahrain argued that LTEs, whatever their location, were subject to the law which governs the acquisition of territory and thus were ‘capable of appropriation’.28 The International Court of Justice (ICJ) there rejected the idea that a LTE outside a State’s territorial sea, could, like an island, be subject to rules relating to acquisition of territory.29 This decision has been recently reinforced by the Award on the Merits in the Philippines v. China South China Sea Arbitration (2016), where the Tribunal commented that ‘notwithstanding the use of the term ‘land’ in the physical description of a [LTE in UNCLOS]’, such LTEs ‘do not form part of the land territory in a legal sense’; but rather ‘form part of the submerged landmass of the State’. Accordingly, they ‘cannot be appropriated; though a coastal State has sovereignty’ over LTEs situate within its territorial 7

19

South China Sea Arbitration (note 6), para. 305. Ibid., para. 306. Thus the Tribunal indicated that it would reach its decision on certain features ‘on the best available evidence of the previous status of what are now heavily modified coral reefs’. 21 First Committee UNCLOS I, United States of America: Proposal, UN Doc. A/CONF.13/C.1/L.115 (1958), OR III, 243. 22 See Llanos (note 7), 260, following a proposal from the US which objected to the aforementioned phrase as being ‘irrelevant and vague’. 23 Nordquist/Nandan/Rosenne (note 1), 128. 24 Whiteman (note 2), 304, notes that coral-formed elevations would be equivalent to terrestrial components despite their living-organism origin. 25 United States v. Alaska, 521 U.S. 1 (1997); Symmons (note 4), 3–4. 26 Symmons (note 4), 4. 27 In fact this question incidentally arose as early as 1953 in the ICJ, Minquiers and Ecrehos Case (France v. United Kingdom), Judgment of 17 November 1953, ICJ Reports (1953), 47, 53, where the ICJ remarked that in order to be capable of appropriation, territory needed to be ‘permanently above high tide, thus not a drying rock ‘only uncovered at low tide’, unless already within the territorial waters of the ‘appropriative territory’. 28 Qatar/Bahrain Case (note 10), 100 (para. 200); see also Qatar/Bahrain Case (note 10), Counter-Memorial of Bahrain, 11 June 1992, 39 (para. 5.24), available at: http://www.icj-cij.org/docket/files/87/7025.pdf. 29 Qatar/Bahrain Case (note 10), 101 et seq. (paras. 202, 245, 248). 20

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sea, ‘since it has sovereignty over the territorial sea itself’. 30 The Philippines argued in the case that in the light of previous international caselaw, ‘sovereignty and other rights’ in relations to LTEs are determined ‘by the maritime zone in which they are located’; 31 hence, that Mischief Reef was in its EEZ and on its continental shelf; and so subject to its ‘sovereign rights’, without the need for occupation or express proclamation. 32 The Tribunal endorsed this viewpoint and decided that LTEs ‘as distinct from land territory’ ‘cannot be appropriated’;33 and stated that Mischief Reef could ‘only constitute part of the [EEZ] and continental shelf of the Philippines’34. However, in the Eritrea/Yemen Arbitration First Stage (1998), the tribunal seems to have decided implicitly that LTEs outside a territorial sea could be subject to territorial jurisdiction.35 The abovementioned principle in the Qatar/Bahrain Case has, however, since been repeated in three later cases by the ICJ36 and, most recently, as seen,by an arbitral tribunal37.Such case-law indirectly analogises, in the law of the sea, with the rule regarding the ‘parasitic’ value of LTEs in creating maritime jurisdiction only where they are located in intraterritorial limits.It seems now from the abovementioned ruling in the Philippines v. China South China Sea Arbitration that similarly LTEs lying in a State’s EEZ or on its continental shelf ipso jure belongs to that State. So that there Mischief Reef was a feature which fell ‘within the regime for the continental shelf’ as a part of the ‘submerged landmass’.38 Reefs (� Art. 6) may constitute low-tide elevations, even though formed of coral (includ- 9 ing isolated ones), particularly as the travaux pre´paratoires seem to indicate that the intention underlying use of the phrase ‘fringing reefs’ was to restrict any baseline to the seaward side only of drying reefs.39 c) ‘surrounded by […] water’. This requirement is also necessary for an ‘island’ under 10 Art. 121 (1). It means that in the case of an inter-tidal area, a formation drying at low tide and attached to the shore by, for example, a sandbar at low tide, will deprive the projecting formation of a low-tide elevation status as such; for it is then merely part of a mainland, or 30 South China Sea Arbitration (note 6), para. 309. See also the Tribunal’s comments in section E of its Award (‘Occupation and Construction Activities on Mischief Reef’ (Submission No.12). 31 Ibid., para. 1018. 32 Ibid. 33 Ibid., paras. 1040, 1043. 34 Ibid., para. 1030. 35 PCA, Award of the Arbitral Tribunal in the First Stage – Territorial Sovereignty and Scope of the Dispute (Eritrea v. Yemen), 9 October 1998, 147 (para. 527), available at: http://www.pca-cpa.org/showpage 6e71.html?pag_id=1160 (‘LTEs’ forming the Mohabbahah Islands ‘are subject to the territorial sovereignty of Eritrea’); see Kopela (note 10), 501, 506; and see Prosper Weil, Les haut fonds decourant dans la delimitation maritime, a propos des paragraphes 200–209 de l’arret de la Cour Internationale de Justice du 16 Mars 2001 en L’Affaire de la Delimitation Maritime et Questions Territoriales Entre Qatar et Bahrein, in: Nisuke Ando/Edward McWhinney/Ru¨diger Wolfrum (eds.), Liber Amicorum for Judge Shigeru Oda, vol. I (2002), 307, 318–319. 36 Nicaragua/Honduras Case (note 10), 720 (para. 204); and ICJ, Case of Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks, and South Ledge (Malaysia/Singapore), Merits, Judgment of 23 May 2008, ICJ Reports (2008), 12 (paras. 295 et seq.), where the ICJ did not specifically determine ownership of ‘South Ledge’ rock, as a LTE, as the respective territorial seas of both States around the formation had not then been delimited. In the most recent instance, the ICJ, Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment of 19 November, 2012, ICJ Reports (2012), 624, 641 (para. 26), in citing the Qatar/Bahrain case, stated that ‘low tide elevations cannot be appropriated’; however, ‘a coastal State has sovereignty over low-tide elevations which are situated in its territorial sea, since it has sovereignty over the territorial sea itself’(emphasis added): by contrast, the only formation on Quitasueno bank found by the Court to be an ‘island’ there (QS32) was held to be capable of ‘appropriation’: ibid., para. 37. 37 See South China Sea Arbitration (note 6). 38 Ibid., para. 1040. 39 Cf. Hiran W. Jayewardene, The Regime of Islands in International Law (1989), 96–97. That reefs may be also LTEs is implied in the Eritrea/Yemen Arbitration First Stage (1998) (note 35), 43 (para. 143), and by the fact that the wording of Art. 6 UNCLOS refers to ‘the seaward low-water line’ of a reef (emphasis added) (so implying also an allowance of mere low-tide appearance of the feature itself). ‘Drying reefs’ are indeed defined in the Glossary of the IHB, Manual on Technical Aspects of the United Nations Convention on the Law of the Sea – 1982 (4th edn. 2006), Appendix 1–12, para. 74, as ones which are ‘above water at low tide but submerged at high tide’.

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island generated, normal low-tide mark.40 In general, therefore, this factor should not be problematic in the case of LTEs; but in the Qatar/Bahrain Case concerning a request to the ICJ to fix a single-line boundary between the two States, an analogous problem arose over the status of a contested formation, Fasht al Azm.41 Bahrain there argued this formation was part of the island of Sitrah; whereas Qatar maintained it was simply a LTE that had always been ‘separated from that island by a natural channel (a ‘fisherman’s channel’) which was navigable even at low tide’.42 The problem here was complicated by the fact that it was impossible to determine whether the natural channel existed before 1982 when an artificial channel had been made there. d) ‘above water at low tide but submerged at high tide’. Unlike the critical balancing phrase ‘above water at low tide’, the latter accompanying phrase (‘submerged at high tide’) is arguably only an essentially descriptive one indicating, on the other side of the coin as it were, the usual geographical circumstances attaching to a LTE. 43 This means, for example, that a ‘failed island’ (i.e., a formation which fails to have sufficient permanence of appearance above high tidal datum) may fall into the residual category of a LTE despite any occasional above-high tide appearances.44 12 One of the main problems, therefore, in the case of LTEs concerns the qualifying requirement of appearance of a formation above water at low tide. Here there is the same problem that attends the definition of an ‘island’ under Art. 121 (1): namely, no tidal datum is here prescribed in UNCLOS regarding the above-water surface requirements. 45 State practice varies considerably in use of various datums for this purpose; 46 and so many commentators have not been very incisive over the issue.47 Furthermore in the case of potentially qualifying LTEs, their exact height above the required low-water datum may be 11

40

Symmons (note 4), 4. See Llanos (note 7), 268. 42 Qatar/Bahrain Case (note 10), 104 (para. 218): the ICJ decided in this case that, even if not a LTE. it constituted a special circumstance in the delimitation. 43 See Antunes (note 6), 13, who aptly describes the concept of a LTE being ‘defined by reference not only to a LW datum, but also in negative terms to the HW datum’ (emphasis added). 44 Symmons (note 4), 10–11. Note that in the case of Nicaragua/Honduras Case the ICJ stated that ‘features which are not permanently above water, and which lie outside the territorial sea, should be distinguished from islands’: Nicaragua/Honduras Case (note 10), 703 (para. 141); and the parties were said to have accepted that that a formation known as Media Luna Cay was now a submerged formation, and so no longer an island (ibid., 704 (para. 143)). Such vague dicta seem to put ‘failed islands’ in a residual category as LTEs or even underwater seabed formations. 45 Symmons (note 4), 12–27. See also Yoshifumi Tanaka, The International Law of the Sea (2nd edn. 2015), 71. In the Nicaragua/Colombia Territorial and Maritime Dispute (note 36), 627, the Court pointed out that the Caribbean Sea has numerous reefs, ‘some of which were above the water surface as cays’, with LTEs which might be ‘located on a bank or shoal’. The two parties disagreed on which features on such a shoal called Quitasueno qualified as ‘islands’(ibid., 642 (para. 27)). Nicaragua claimed that Quitasueno was a shoal on which all formations were submerged at high tide (ibid., para. 28). Colombia, in turn, alleged that there were ‘at least 20 [LTEs] situated well within 12[NMs]’ of one or more of the alleged islands there (ibid., para. 29). Applying the Court’s there-approved tidal model, the Court found that all features on this reef but one (QS32) were below highest astronomic tide (‘HAT’), so being mere LTEs, as photographic evidence showed them ‘to be above water at some point in the tidal circle’(ibid., 645 (para. 38). It is evident from this vague statement that the ICJ was much less concerned with any requisite legally-required low tide datum relating to LTEs compared with that relating to the high tide test for ‘islands’. It seems, therefore, misleading to allege that this case set a ‘high bar’ for proof of LTEs (though it may have done so regarding proof of ‘islands’). See Diane Disierto, The Jurisdictional Rubicon: Scrutinizing China’s Position Paper on the South China Sea Arbitration – Part I, EJIL:Talk! Blog 29 January 2015, available at: http://www.ejiltalk.org/the-jurisdictional-rubicon-scrutinizing-chinas-position-paper-on-the-south-china-sea-arbitration/. In the Nicaragua/Honduras Case the ICJ referred to there being in the area to be delimited numerous banks, reefs and cays, some of which were above water at high tide, others above water only at low tide (i. e. LTEs): Nicaragua/Honduras Case (note 10), paras. 105, 127. 46 Cf. Dipla (note 4), 32; and Robert Jennings/Arthur Watts (eds.), Oppenheim’s International Law (9th edn. 1992), 104–105. 47 Cf. e. g. Dipla (note 4), 45, who, whilst commenting on the diversity of State practice relating to this and the fact that several States use the term without precision, concludes rather vaguely that it simply suffices if LTEs uncover ‘at the lowest tide’, even if only ‘very little’. 41

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difficult to assess because of their low-lying nature.48 In fact, lowest astronomic tide (‘LAT’) is increasingly used in the world today as the most appropriate datum for LTEs (see below); but several other datums – such as mean low-water spring tide, mean low-water, low neap tide, mean lower low water – have also been evident in State practice, 49 with converse equivalents as to high tide datums (the latter of importance in gauging true insular status).The matter of relevant tidal datum has been most recently discussed by the arbitral Tribunal in the Philippines v. China South China Sea Arbitration (2016), which noted the use of the term ‘high tide’ in the definition of both LTEs and islands. The Tribunal stated that the term ‘high tide’ is ‘not a technical term and is potentially subject to a number of different technical interpretations’, noting that the International Hydrographic Organisation (IHO) made no recommendation about heights depicted on nautical charts except that highest astronomic tide should be used as the datum for vertical clearances. 50 The Tribunal concluded in the case that nothing in UNCLOS or customary international law would mandate that the ‘status of low-tide elevations […] be determined against any particular water datum’; so that, accordingly, the Tribunal considered that States are free under UNCLOS to claim a high-tide feature or island on the basis of any high-water datum (and presumably also any low-tide datum) that ‘reasonably corresponds to the ordinary meaning of the term “high tide”’(or, it would seem, also of low-tide) in Arts. 13 and 121; and that ‘[o]rdinarily, this would also be the height datum for nautical charts published by that State, above which rocks would be depicted as not covering at high tide’.51 It is curious that in the case of LTEs – in the light of this tidal datum ambiguity – the 13 UNCLOS does not here make specific reference to officially recognized charts for depictive reference to such features, as does Art. 5 (in respect of evidencing the coastal ‘low water line’). 52 In the light of such State diversity – and the silence, as seen, as to the relevant tidal 14 datum53 for this purpose in the UNCLOS – adoption by one State of any of the more ‘surface-stringent’ datums than LAT (e. g. ‘mean low-water’), could entail it viewing another State’s claimed LTE formation (based on a more liberal test such as LAT) as not constituting such a formation at all because of its very periodic and spasmodic above-water appearances; whereas another State – using the most lax and beneficial low-water test, that of LAT – could argue that the same feature is a LTE because of (even) occasional appearances at such an extreme low-tide level.54 Indeed use of LAT (recommended for low water datum use by the IHO)55 may mean that often an elevation will not be visible at many, or most, states of the 48

Cf. IHB Manual (note 39), Ch. 2-24. Symmons (note 4), 17; Antunes (note 6), 7. 50 See South China Sea Arbitration (note 6), para. 310. 51 Ibid., para. 311. 52 Antunes (note 6), 13–14, aptly remarks, though, that the phrase – ‘may be used as the baseline for measuring the territorial sea’ (in Art. 13) – can be seen as ‘an implicit allusion to Article 5’ which defines the normal baseline by reference to official charts, so that the ‘low water datum [in the case of LTEs] should be the same as that indicated in Article 5’. Thus it has been argued that impliedly the term ‘low-tide’ here must refer to those levels ‘shown on the officially-recognized charts’ of the State concerned, Peter B. Beazley, Maritime Limits and Baselines: A Guide to their Delineation (2nd edn. 1978), 24; but cf. IHB Manual (note 39), Ch. 4-9, which includes LTEs as ‘exceptions’ to application of the ‘normal’ baseline. Compare, though, the analogous situation of Art. 6 on ‘fringing reef’ baselines, which refers expressly to their seaward low-tide limits having to be ‘shown by the appropriate symbol on charts officially recognized by the coastal State’ (emphasis added). More recently, the Report of the International Law Association Committee on Baselines under the Law of the Sea took the view that the ‘normal baseline’ (ie., low tide mark) may also be used under Arts. 6 and 13 of UNCLOS: ILA, Report of the Committee on Baselines under the International Law of the Sea, Sofia Conference (2012), 24. 53 Antunes (note 6), 5. 54 Symmons (note 4), 17–18; Peter B. Beazley, Technical Aspects of Maritime Boundary Delimitations, IBRU Maritime Briefing 1(2) (1994), 1, 6. This happened, for example, in French/Belgian delimitation agreements, as in the case of the formation called ‘Banc Breedt’, off the French coast: according to Belgian charts, using mean low water spring tides as chart datum, it was not a LTE, but according to French charts, using LAT datum, it was a LTE, cf. Antunes (note 6), 20. 55 IHO, Regulations of the IHO for International Charts and Chart Specification of the IHO (September 2013), available at: http://www.iho.int/iho_pubs/standard/S-4/S-4_e4.4.0_EN_Sep13.pdf, B-405.3. 49

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tide. The lack of clarity in the law of the sea is well reflected in a dictum from a 1968 British domestic case, concerning a controversial sandbank in the Thames Estuary – Post Office v. Estuary Radio – where it was stated prophetically: ‘Upon these [international and municipal] definitions [of LTEs] interesting and difficult questions arise as to whether [a LTE] must be above water at all low tides, at mean low-water spring tides, at admiralty datum, at the lowest tides experienced from time to time (if so, how often?) in the course of a year, or at lowest astronomical tides. Someday some court, municipal or international, may have to decide this.’56

There is also the analogous problem of ‘peripatetic appearance’ of an alleged LTE more generally, caused by constant movement of position (and often surface appearance), as also can happen in the case of so-called ‘occasional islands’.57 The fact is that typically low-lying formations which may typically constitute LTEs – such as particularly sand and mud banks – may not only be prone to continual erosion through tide and weather (so that their appearance above low tide at one location may not occur on a regular basis), but may also be subject to constant change of position as ‘ambulatory’ seabed formations. It may be implicit from the above-mentioned Dinkum Sands case58 where such problems arose, that like an island proper, a true LTE should also have a similar degree of ‘permanence’ and predictability of regular appearance in one location (eg., at least once every 24 hours, consequentially being covered half of every 24 hours);59 and that if the formation does not so comply, it is merely part of the seabed. 16 Furthermore, the weasel phrase ‘rocks awash’ (at chart datum) is also one that has entered maritime terminology and charting practice; and it should be distinguished from a ‘drying rock’ which implies that the formation does emerge at low-tide datum.60 Such low-lying types of formations may be especially subject to inadequate survey work;61 and even qualifying offshore LTEs may escape initial charting detection.62 Only drying rocks (or other similarly surfacing formations) will now constitute a LTE; though even here there may be a problem with changes in sea level due to global warming, with certain LTEs in danger of disappearing 15

56

Post Office v. Estuary Radio Ltd, [1968] 2 QB 740, 761 (UK) (per Diplock LJ). Clive R. Symmons, When is an ‘Island’ not an ‘Island’ in International Law: The Riddle of Dinkum Sands in the Case of US v. Alaska, IBRU Maritime Briefing 2(6) (1999), 1, 12–13, 26–28. 58 US v. Alaska (note 23); see Symmons (note 56), 12–13, referring to the US argument therein that there had been ‘dramatic movements of the exposed areas of Dinkum Sands’, often by hundreds of feet. 59 A rare example of a ‘time’ factor being used in a multi-faceted way for defining low-water surfacing requirements can be seen in the legislation of Finland (in connection with basepoints for its straight baseline system) where there is reference to a formation having to be ‘above sea level more than one half day per year on the average, at low water levels during the ten-year period preceding when this law takes effect’, Arts. 3 and 4 of the Act on the Delimitation of the Territorial Waters of Finland, Act No. 463 (1956). 60 Jayewardene (note 39), 6. It has been pointed out that if one changes the chart symbolization of ‘rock awash’ to that of a ‘low tide elevation’, the extent of maritime claim may ‘drastically change’, Sandra H. Shaw/Daniel J. Dzurek, Charts in the Law of the Sea, in: Dorinda G. Dallmayer/Louis DeVorsey (eds.), Deciding and Drawing Maritime Boundaries (1989), 15, 18; see further the marginal LTE status of Middleton Reef located 125 NM from the Australian coast, which may be a LTE although allegedly periodically submerged; discussed by Clive Schofield, The Trouble with Islands: the Definition and Role of Islands and Rocks in Maritime Delimitation, in: SeoungYong Hong/Jon M. Van Dyke (eds.), Maritime Boundary Disputes, Settlement Processes and the Law of the Sea (2009), 19, 34–35. Gray (note 11), 9, mentions that during 1982–1992, when Canada and Denmark were investigating an equidistance line between Canada and Greenland, Denmark submitted its list of basepoints, including many rocks just marked with crosses on charts, which Canada objected to because they were charted as being below low-water. On re-survey of these rocks, some were indeed found to be below low-water datum, but one was even found to have a drying height at high tide. 61 Gray (note 11), 6–7, who points out the four types of chart symbols which may apply in such situations and comments that ‘rocks awash’, if they were just a little higher, could be LTEs and need further survey observation. See the comment of the arbitral Tribunal on this in the Philippines v. China case: South China Sea Arbitration (note 6), para. 331. 62 Gray (note 11), 5–6, who cites the case of LTEs north of Cape Chidley (off Canada) on the Labrador Reef, consisting of two pinnacles of rock drying respectively to 2.4 and 2.7 metres which were initially overlooked by Canada in setting its baseline system, and were only later included in it as a territorial sea basepoint in 1986, although they lie only 2.5 NM from the nearest island. 57

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entirely.63 It may be noted here, though, that just as low-lying islands such as cays 64 may be overrun by waves in certain weather conditions (such as monsoon periods); so a fortiori may even lower lying LTEs be overswept by seas when weather is not calm.65 In the light of all this, it has been rightly stated that the ‘most difficult issue’ with LTEs has 17 been ‘determining whether a given feature extends above the low-water datum’, especially as even the very chart symbols used for these vary and are based on warning of navigational hazard on standard nautical charts.66 Not surprisingly, several disputes have arisen for such reasons over the status of certain ‘marginal’ LTEs resulting from divergent (and evolving) 67 low-water datum practice; i.e., as to whether they are even LTEs and so part of the seabed. Equally problematic may be deciding the analogous question of the status of a formation falling between a LTE and an island properly so called. For example, in the Qatar/Bahrain Case, Qatar claimed that a small feature known as Qit’at Jaradah was merely a LTE, 68 but Bahrain argued that it was an ‘island’. In the case, on the basis of expert evidence from both States, the Court decided it was (marginally) an island under Art. 121 (1).69 More recently, a similar question has arisen incidentally in the context of maritime 18 delimitation. For in the Eritrea/Yemen Arbitration Second Stage in 1999, Eritrea argued that 63 Cf. Second Report on the Regime of the Territorial Sea (note 2). An example of a former LTE later (due to man-created change in currents) losing this status, and thus not even being exposed at the lowest of spring tides off Nova Scotia, Canada, is the case of Bass Rock, see further Gray (note 11), 11–12; this new situation may cause loss to Canada of 0.4 square km of territorial sea in the area. Loss (through disappearance) of former LTE status may also, and more often, be due to entirely natural conditions and so cause jurisdictional problems: see ILA Report 2012 (note 52), 24, commenting that LTEs may be ‘highly susceptible to coastal change’. This Report (ibid., 21) refers, as an example, to the two cases in the Netherlands of 29 June 2007 (cases 13/501817(A) and 13/ 500730-06(B)), where the defendants argued, when prosecuted for illegal fishing, that they were not in fact fishing within the Netherlands 12 NM zone because a LTE (named ‘Shovwen’), although included on a thencurrent Dutch official large-scale chart, was actually no longer in existence. The District Court rejected this plea, and the official Netherlands position at the time was that a change in its actual coastline had no effect until such time as it was taken note of in an official State chart. Rising tides due to global warming constitute another particular problem for the status of LTEs: see, for example, Clive Schofield & David Freestone, Options to Protect Coastlines and Maritime Jurisdictional Claims in the Face of Global Sea Rise, 1, 6–7 (loss of ‘significant rights’): Research Online, University of Wollongong (2013), available at: http://ro.uon.edu.au/lhapapers/1236. 64 See David Hancox/John R. V. Prescott, A Geographical Description of the Spratly Islands and an Account of Hydrographic Surveys amongst those Islands, IBRU Maritime Briefing 1(6) (1995), 1, 3, 5, 7, 26, where descriptions of the various formations in the area evidence that many are below the sea surface (or rarely appear above it) or are often awash with water. 65 Ibid., 13. See, e. g., the Nicaragua/Honduras Case (note 10), 672 (para. 28), regarding cays in that case which were ‘small, low-lying islands composed largely of sand derived from the break-down of coral reefs by wave action and subsequent reworking by the wind’, the smaller ones of which are ‘extremely vulnerable to tropical storms’. 66 Reed (note 15), 220, cites the case of Carpentaria Rock off the coast of California, in the case of which, despite having been subject of an extensive survey by both US federal and state authorities, no consensus was obtained as to its status, the rock surface lying as little as two inches either above or below mean low water (the usual US tidal datum for such determination). 67 For one example, see supra, note 43. An example of a sudden change of datum use is the more recent reliance of Australia on LAT for LTE datum, changing from the more stringent ‘low-water spring tide’ test. This change may expose a number of new low-tide elevations within Australia’s territorial sea distance off its coasts which were earlier covered at former low water datum. Antunes (note 6), 14, refers to adoption of a ‘lower’ chart datum leading to ‘new’ LTEs on charts, just as charting updates generally may unearth new basepoints in the analogous case of status of ‘islands’ such as Dinkum Sands off Alaska in US v Alaska; see further Symmons (note 57), 1 et seq. Gray (note 11), 12–15, gives the example of a possible new external bank (‘Vissers Bank’) on a mudflat off the Suriname coast. On a possible solution to conflicting datums in an inter-State dispute, see also supra, note 43. 68 Qatar/Bahrain Case (note 10), 104 (para. 219). 69 Though Judge Vereshchetin commented on the opposing views of the expert evidence and the fact that there was no ‘evidence whatsoever to the effect that Qit’at Jaradah ha[d] ever been shown on nautical charts as an island’, added to which allegedly ‘attempts had been made by both States to artificially change the upper part of its surface’, Qatar/Bahrain Case (note 10), Declaration of Judge Vereshchetin, 217, 220 et seq. (para. 13). Cf. Kopela (note 10), 512 (concerning the archipelagic baseline legislation of the Dominican Republic, where various banks have been used north of its archipelago; these may be wholly submerged features in an area which has not been fully surveyed, such as Mouchoir and Navidad Banks, and against the baseline use of which both the US and UK have protested).

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a rocky formation contained in its straight baseline system (called Negileh Rock) should be taken into account for the purposes of fixing a median line; whereas Yemen argued that on the chart used in the proceedings, the rock was depicted as a ‘reef’ which appeared not to be above water at any state of the tide.70 In its judgment the Court agreed with the Yemeni position; as the reef was ‘not proud of the water at low-tide’.71 Thus despite these evidential problems, the Court had to make a definitive decision on the issue.

2. ‘situated wholly or partly at a distance not exceeding the breadth of the territorial Sea’ The phrase ‘wholly or partly’ refers to the necessary intraterritorial location of a qualifying LTE as a basepoint,72 and causes no interpretational problems. However, it means in practice that in some marginal cases precise measurement will have to be made from the general shoreline to determine if any partial inclusion of a LTE, however slight, pertains within an existing general territorial sea distance from that shoreline. This proved to be a problem recently in the Philippines v. China South China Sea Arbitration: in terms of whether one of the many small reefs in issue, namely Subi Reef, was within 12NMs of a ‘high-tide feature, such that it could serve as a baseline for the territorial sea of that high-tide feature pursuant to Article 13(1)’ of UNCLOS73.Presumably if an erstwhile LTE once near the outer perimeter of a territorial sea changes position (as is quite common in the case of such small formations) and becomes situate outside this perimeter, it then loses any continuing baseline value. 74 20 The locational requirement for baseline use of a LTE was well-described in the Qatari pleadings in the Qatar/Bahrain Case as being ‘strictly dependent’ on the distance of the LTE 19

70 See Llanos (note 7), 267; PCA, Award of the Arbitral Tribunal in the Second Stage – Maritime Delimitation (Eritrea v. Yemen), 17 December 1999, RIAA XXII, 335, paras. 143 et seq.; Barbara Kwiatkowska, The EritreaYemen Arbitration: Landmark Progress in the Acquisition of Territorial Sovereignty and Equitable Maritime Delimitation, ODIL 32 (2001), 1, 9. 71 Eritrea/Yemen Arbitration Second Stage (note 70), para. 129 (note here the vagueness as to the meaning of ‘low tide’). Similarly, in the Nicaragua/Colombia Territorial and Maritime Dispute (note 36), 645 (para. 38), the ICJ there found that the sufficiency of evidence was not enough to prove that many ‘tiny maritime features [were] above water at [HAT]; nonetheless, as seen, they were all found on photographic evidence to be LTEs, seemingly without any tidal datum being specified in this instance’, even if it was not proveable in this instance that the formations were just a few centimetres above water at high tide, ibid., 645 (para. 38). As the Court also stated in the Nicaragua/Honduras Case (note 10), 702 (para. 136), in addition to the four main insular cays, ‘there were a number of smaller islets, cays and reef in the same area, of which the physical status (such as whether they were completely submerged below sea level, either permanently or at high tide),[…] and consequently their legal status under Articles 6, 13 or 121 of [UNCLOS] [were] not clear’. 72 Cf. Whiteman (note 2), 306; unlike at the Hague Codification Conference in 1930, where there was some support for LTEs situate anywhere being able to generate maritime zones like islands; see Elisio B. Jamine, Delimitation of the Mozambique Maritime Boundaries with Neighbouring States (Including the Extended Continental Shelf) and the Management of Ocean Issues, in: UN DOALOS, Maritime Boundaries Delimitation, Management and Dispute Settlement (2006–2007), 39. LTEs may be situate far out to sea: an example of such an isolated reef, which seems to mostly dry, but to be ‘barely emergent’ at low tide, is the coral atoll of Bassas da India in the Indian Ocean. As it is situate more than the territorial sea distances of both neighboring territories (France and Madagascar), it constitutes, if a LTE, an inadmissible basepoint for delimitation. 73 South China Sea Arbitration (note 6), para. 369. In its conclusion (ibid., para. 373), the Tribunal found Subi Reef to be within 12 NMs of nearby Sandy Cay (an above high-tide reef feature),so it could serve as a basepoint for that reef. 74 Cf. supra, note 63, on an analogy with an intraterritorial LTE which later falls below low-tide: see Michael Gagain, Climate Change, Sea Level Rise and Artificial Islands; Saving the Maldives’ Statehood and Maritime Claims through the ‘Constitution of the Oceans’, Colo. J. Int’l Envtl. L. & Pol’y 23 (2012), 77, 98, stating that the same principle would apply if the island generating a territorial sea within which a LTE is situate disappears permanently or becomes a LTE itself, e. g., due to rising sea levels. A similar, more general, point is made in the ILA Report 2012 (note 52), 24, which comments that changes in coastal configuration of the nearest mainland or island to a LTE may also have an impact on the ‘location of the normal baseline’; and so place a previouslyqualified LTE ‘outside the territorial sea’.

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from the mainland or an island ‘by reference to the breadth of the territorial sea as adopted by the State concerned in conformity with international law’ (emphasis added). 75 Thus, as States change to a more extreme low-tide datum such as LAT, as well as adopting 12 21 NM territorial sea breadths,76 these factors may individually, but particularly in combination, be a reason for erstwhile ‘marginal’ LTEs being brought into account by a ‘chain reaction’. 77 However, it is to be noted that the qualifying locational phrase – ‘from the mainland or an island’ – means exactly what it says; and it excludes LTEs within territorial sea distance of each other as successive seaward basepoints: the accompanying phrase relating to the low-water line ‘on that [first] elevation’ (emphasis added) supports this interpretation. Thus there can be no ‘leap-frogging’ process from the first (properly-qualifying) LTE out to the next in progressive fashion, as the reference here to an ‘island’ cannot include another LTE. 78 Indeed, this very process was disapproved of by the ICJ in the Qatar/Bahrain Case relating to the northern-sector feature called Dibal, where Bahrain had argued that it was within the territorial sea breadth of another (more landward) LTE it owned, namely Fasht al-Azm79, saying: ‘Whereas a [LTE] which is situated within the limits of the territorial sea may be used for the determination of its breadth, this does not hold for a [LTE] which is situate less that 12 [NM] from that [LTE] but is beyond the limits of the territorial sea.’80

If a LTE lies wholly beyond the general territorial sea belt, it merely forms part of the 22 seabed, constituting a bank or reef in shallow water (despite any occasional above low-tide appearances); and so at most forms part of a continental shelf regime. 81 However, LTEs 75 Qatar/Bahrain Case (note 10), Reply of Qatar, para. 7.40, available at: http://www.icj-cij.org/docket/files/87/ 11053.pdf. The emphasised aspect of this dictum could apply where a State claims a territorial sea in excess of 12 NM or, more likely today, where a State has used other illegal baselines to make a LTE supposedly ‘intraterritorial’, or even where a LTE is measured from a valid straight-type baseline, see infra, note 75. In the case of the analogous rule for LTEs under Art. 47 (4) and qualifying archipelagic basepoints, see Symmons on Art. 47 MN 36–41. There are some cases where States have used LTEs lying outside territorial waters as such basepoints: cf. Kopela (note 10), 513, citing he Solomon Islands’ use of indispensable reef lying 40 NM from the nearest island for such purposes. By way of comparison, in the Nicaragua/Colombia Territorial and Maritime Dispute (note 36), 643 (para. 29), Colombia alleged that at least 20 LTEs were situated within 12 NMs of one or more of the near-lying islands. Thus the ICJ there found that that the one insular feature on Quitasueno reef (QS32) took in, within its 12 NMs envelope of arcs around it these intraterritorial LTEs to expand territorial sea jurisdiction of Colombia in the area: ibid., 713 (para. 238).The Tribunal in the Philippines v.China: South China Sea Arbitration (note 6), para. 373, noted that in contrast to a rock or coral boulder, ‘it is possible that a sand cay may be dispersed by storm action and reform in the same location after a while’. 76 As territorial seas limits have expanded in many cases from 3 NM to 12 NM, so consequentially has the jurisdictional effect of LTEs now contained in these broader zones, Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 48–49. Whereas some States have taken explicit advantage of this (see infra, note 65), others, such as Ireland, have seemingly not: cf. Clive R. Symmons, Ireland and the Law of the Sea (2nd edn. 2000), 42–43: e. g., off the South East Irish coast there lies, 4 NM from the coastline, a possible tiny LTE on the Arklow Bank, marked on a very dated Admiralty chart as ‘drying’, which is now within the expanded Irish 12 NM territorial sea. There is no indication that this feature is claimed as a basepoint there by Ireland. 77 Antunes (note 6), 14–15. A good example of this is when the UK extended its territorial sea from 3 NM to 12 NM in 1987 which brought in new LTEs as relevant basepoints for the first time: see Alan V. Lowe, The United Kingdom and the Law of the Sea, in: Tullio Treves (ed.), The Law of the Sea: The European Union and its Member States (1997), 521, 523. Robin R. Churchill, Law of the Sea, ICLQ 37 (1988), 412, 413, has noted that when the UK tried to utilize new LTEs off its east coast, this led to protests from Belgian and French fishermen who claimed that the consequential attempted expansion of territorial waters violated their fishery rights under EU law. 78 Derek W. Bowett, The Legal Regime of Islands in International Law (1979), 12. Some States, though, have implemented the above-discussed particular qualificatory principle in their maritime legislation: cf. the Bahamian Act respecting the territorial sea, archipelagic waters, internal waters and the exclusive economic zone, Act No. 37 (1993), S. 4 (4): ‘Where a [LTE] lies wholly or partly within the breadth of the territorial sea of The Bahamas if all [LTEs] were disregarded for the purpose of measurement of the breadth thereof, the low-tide elevation shall be treated as an island’ (emphasis added). 79 Qatar/Bahrain Case (note 10), Counter-Memorial of Qatar, 31 December 1997, 272 et seq. (paras. 8.52 et seq.). 80 Qatar/Bahrain Case (note 10), 102 (para. 107); Llanos (note 7), 271. 81 Kopela (note 10), 505.In the Philippines v. China: South China Sea Arbitration (note 6), the Philippines in its pleadings stressed the distinction, pursuant to Art. 13 (1) between LTEs falling wholly or partially ‘within the

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within the territorial sea distance of ‘rocks’ under Art. 121 (3) may be used, insofar as such rocks constitute technical ‘islands’ under Art. 121 (1) and implicitly generate their own autonomous territorial seas.82 Controversially also, by a reading together of Art. 13 with Art. 7 (4), LTEs situated within territorial sea limits might be considered to be permissible as basepoints for a straight baseline system under Art. 7, despite the fact that they have no installations on them or have not otherwise received any international recognition as such. 83 23 By contrast, under Art. 7 a low-tide elevation which lies outside the 12 NM limit, may still be used as a basepoint for a straight baseline system84 (or as an archipelagic basepoint under Art. 47 (4)) where it has a lighthouse or similar above-high tide installation built on it, or alternatively, has received ‘international recognition’ as a basepoint. 85 24 Another possible exception to the territorial sea distance requirement is where a ‘fringing reef’ is involved under Art. 686 which makes the low-water line of such a relevant baseline implicitly useable, even if not within the territorial sea distance of its generating atoll-type ‘island’; and despite the fact that such reefs may in most cases also fall under the definition of LTEs under Art. 13 insofar as they may only appear at low tide. 87 The fact that there is a reference to a ‘seaward’ low-water line makes no substantive difference here, as in effect it is also only the seaward limit of any LTE which is critical in generating further external maritime zone therefrom. 25 The reference to ‘breadth’ of the territorial sea in Art. 13 (1) could include (on a literal interpretation) a breadth measured not only from the low-tide mark, but also from any permissible straight baselines (particularly under Arts. 7 and 10); though this is controversial.88 Thus in such areas where LTEs lie outside such straight lines, any such formations less than 12 NM seaward of these lines may arguably be the actual territorial sea basepoints in that area; and so may add a ‘bulge’ to an otherwise straightish limit line. 89 In US practice90 LTEs within the territorial sea distance of bay closing lines have been taken into account.91 territorial sea of a high-tide feature’ and ones beyond the territorial sea which have ‘no capacity to generate claims to maritime jurisdiction’; and incapacity to have any ‘independent entitlement to maritime zones’: ibid., paras. 281, 291. 82 Llanos (note 7), 56, endorses this viewpoint. 83 See Daniel P. O’Connell, The International Law of the Sea, vol. I (1982), 211. Note that the 2014 Report of ILA Committee on Baselines under the Law of the Sea announced an expanded mandate to consider interpretation and State practice of Art. 13 of the UNCLOS relating to methods adopted by States in relying on LTEs in drawing straight baselines; and consistency with Art. 7 (4): ILA, Report of the Committee on Baselines under the International Law of the Sea, Washington Conference (2014), para. 5. 84 Kopela (note 10), 6. Cf. UN DOALOS Baselines Study (note 17), 72. 85 Symmons (note 4), 6. Although generally such a formation must, as stated, have an artificial construction on it which is ‘above sea level’ to be an ‘Art. 7 basepoint’, this need not be the case where the LTE has otherwise received ‘international recognition’ as a basepoint under Art. 7 (4), which is clearly, from use of the disjunctive phrase, taking in an alternative situation where there may be no artificial construction (which is permanently above high tide) on such LTE. 86 The term ‘fringing reefs’ is not defined in Art. 6, but the very word ‘fringing’ implies propinquity of such coral-type structures to the relevant island; see the definition of such ‘reefs’ in the Glossary of the IHB Manual (note 30), Appendix 1-22, para. 74 (formations attached ‘directly to the shore’ or located in its ‘immediate vicinity’). 87 Peter B. Beazley, Reefs and the 1982 Convention on the Law of the Sea, IJECL 6 (1991), 298, 311, states that ‘there is no limit on the distance that the reef may lie from the island’, but Art. 6 ‘probably achieves nothing that could not be effected under Article 13’. 88 See Beazley (note 43), 25, who argues to the contrary, based on a ‘strict interpretation’ of the provision where the LTE is not overlapping the straight baseline; but he also admits that US practice seems to indicate otherwise. Note that the wording of Art. 13 (1) does not here refer to the qualifying distance as emanating from the mainland/island ‘low-tide’ mark as such, but this is arguably implicit. 89 As in case of the Netherlands territorial sea limits, where some LTEs even eclipse the effect of Dutch straight baselines: see Harm M. Dotinga/Alfred H. A. Soons, The Netherlands and the Law of the Sea, in: Tullio Treves (ed.) The Law of the Sea: The European Union and Its Member States (1997), 365, 368. 90 United States v. Louisiana, 363 U.S. 1 (1960). 91 Reed (note 16), 61, 218, citing Hanus Reef, Alaska, within 3 NM of a closing line there.

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3. Function of the Low-Water Line of the Elevation The identical phrase to that in Art. 5 – ‘low-water line’ – is again used here in Art. 13 (1) 26 (and without any specified tidal datum as is also the case concerning Art. 5). Anomalously, in the case of a LTE, the very entity (LTE) that creates this baseline – the low-tide mark – is by definition destined at regular intervals to disappear completely from view at high tide; so that the LTE itself may be pro tempore without then any visible tide-line at all, unlike a mainland or insular coast.92 An added complication is that some States (such as has the UK) may even use different 27 tidal datums for this low-tide purpose compared to that which they use to gauge the ‘vertical height qualification’ of an actual LTE above low tide93 As seen above, insofar as a LTE forms a basepoint from which the territorial sea may be drawn (if it is wholly or partly within mainland or insular-generated limits), this may potentially push out the outer limits of that zone in the area a further 12 NM or so in proportion to its seaward position from the shore; and also potentially do the same in respect of any limits in the area of the 24 NM contiguous zone, EEZ94 or (to the extent relevant), the outer continental shelf.95 This is so whatever the size of the LTE.96

4. LTEs and Publicity Considering the abovementioned zone-creating capacity of LTEs, it is perhaps strange that 28 though not being, as seen,97 strictly part of a mainland or insular normal low-tide line, there is no explicit ‘publicity’ requirement for use of LTEs as baselines under Art. 16 or elsewhere in this Convention. Art. 16, for example, refers back, in terms of baselines, only to Art. 7 (straight baselines), Art. 9 (rivers) and Art. 10 (bays). There is seemingly also no specific obligation on a State to indicate such basepoints on its charts anywhere else in the UNCLOS, for example, even under Art. 5 (the normal baseline, i. e., the low-water line), unless, as seen, by implication.98 Technically, the low-water line as described in Art. 13 (1) is arguably not the same thing as the ‘normal baseline – the ‘low-water line along the coast’ (emphasis 92

See Llanos (note 7), 67, who comments on this aspect. Such as respectively LAT/mean low spring tide; cf. Eddie D. Brown, The International Law of the Sea, vol. I (1994), 33–34, pointing out that the British Territorial Order-in-Council of 1964 defined a LTE by reference to ‘mean high-water spring tides’, but did not define ‘low-water line’, the latter presumably depending on British Admiralty chart datum which anomalously nowadays (at least) is based on LAT and so ‘more favourable’ to the UK. 94 See Llanos (note 7), 67. Some commentators seem to have doubted this generative power on an analogy with ‘rocks’ under Art. 121 (3), LTEs being less visible areas of land, even where they are ‘proximate’ to the coast; for example, Lavalle (note 8), 60, seems (at times at least) to doubt that LTEs ‘lying on the edge of the territorial sea’ can generate major maritime zones, the reason apparently being that LTEs are not truly ‘autonomous’ entities; but see also his clearer (albeit inconsistent) statement on not confusing capacity to generate maritime areas autonomously with ‘capacity to do so by serving as a basepoint of a straight baseline system’. He gives a list of reasons why LTEs should be used to generate more extensive maritime zones, whilst also mentioning the ‘downgrading’ of such formations in the Qatar/Bahrain Case. Other commentators, however, such as Llanos (note 7), 53 and 58 (footnote 41), rightly note that while Art. 13 (1) does not expressly grant capacity to LTEs to generate EEZ/continental shelf regimes like the mainland baseline of a State, the wording seems to imply this capacity: so that, for example, ‘[if] full generating capacity were attributed to [LTEs] a bulge would be added to the outer edges of the EEZ’. 95 Antunes (note 6), 13. 96 However, the size of a formation may be of relevance in delimitation of boundaries between States; cf. the Qatar/Bahrain Case (note 10) and the formation called Facht al Jarim, a feature relatively far out to sea, which Qatar argued was a LTE, though Bahrain had incorporated as a basepoint in its supposed archipelagic baseline system. The ICJ finally decided not to take it into account, inter alia, because ‘at most a minute part of it was above water at high tide’ (emphasis added), ibid., 115 (para. 248); see also Llanos (note 7), 270. 97 Supra, note 42. 98 Antunes (note 6), 13; cf. Llanos (note 7), 57 (footnote 41), who remarks, somewhat strangely in the light of the actual wording of Art. 16 (1), that nonetheless a State can ‘take [its LTEs] into account in implementing Art. 16 (1)’ (emphasis added).The ILA Report 2012 (note 41) takes the position that the charting requirements under Art. 5 of the UNCLOS apply equally to Art. 13, as is also the opinion of this commentator (see note 88). 93

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added) – used for ‘measuring the breadth of the territorial sea’ as described in Art. 5. So there may even, and anomalously, be no express obligation on a State utilizing such a LTE basepoint to mark (or publicise) such basepoints on charts;99 i. e., on ‘large-scale charts’ officially recognised by it under Art. 5; but it would obviously be to its own advantage to do so for the sake of clarity. 29 An analogy can certainly be made with the publicity requirements relating to ‘reefs’ as baselines under Art. 6, where, specifically, the similarly-worded phrase ‘seaward low-water line of the reef’ has expressly to be shown ‘by the appropriate symbol on charts officially recognised by the coastal state’ under that article. 100

5. Waters Behind and Seaward of LTEs 30

Unlike waters in a ‘straight line’ type of baseline system, waters landward of a LTE do not constitute internal waters, merely part of the general territorial sea. 101 To this extent they are like off-shore islands (to which some State maritime legislation has likened them) 102 whose insular-generated territorial sea limits simply coalesce with those independently-generated by a mainland or other islands. As seen, as part of the general baseline system linking in with (by the above-mentioned sort of coalescence) territorial sea following the normal low-tide mark rule, such a basepoint generates for its owner not only a territorial sea, but also implicitly other zones outside it in a seaward direction (a contiguous zone, including an EEZ103, but nothing shorewards behind it).104 By way of contrast, insofar as ‘reefs’ under Art. 6 may also be LTEs, they not only in this capacity constitute baselines to generate a territorial sea if fringing an atoll-type island, but also here seemingly may enclose internal waters.105

6. Low-Tide Elevations and Maritime Delimitation 31

In a few decided cases, LTEs have been taken into account as basepoints in maritime delimitation between States. For example, in the 1982 Case Concerning the Continental Shelf, the question of the effect of LTEs in the Gulf of Gabes and the island of Djerba and the Kerkennahs had to be considered by the ICJ; which held that although relevant in terms of size and location, they should respectively be only given less than full effect or ‘half-effect’. 106 In other cases, LTEs have been both, on occasion, taken into account or discounted, as in the Qatar/Bahrain Case.107 99

Churchill/Lowe (note 76), 53, on LTEs and charting obligations. One may speculate why there seems to be a discrepancy in this regard between Art. 6 and Art. 13, but it seems to this commentator that the omission to insert a similar express publicity obligation to that found in Art. 16 into Art. 13 resulted from a simple oversight at UNCLOS II, inherited from the situation ante quo in Art. 11 CTSCZ; and it may be argued in a general sense, as seen, that the phrase in Art. 5 (‘low-water line along the coast’ (emphasis added) implicitly includes, or approximates to, the similar phrase in Art. 13 (‘low-water line’ on a LTE), the latter also being (albeit in a looser sense) ‘along the coast’. So that in the latter case there is logically an obligation under Art. 5 (but not Art. 16) to give such baselines publicity. 101 In any event, there would be no clear lateral limits of any internal waters if this were not the case. 102 Supra, note 2; and, for example, see S. 5 (2) Trinidad and Tobago Territorial Sea Act, Act No. 38 (1969), according to which an intraterritorially located LTE shall be ‘treated as an island’. 103 But see now the Philippines v. China Award: South China Sea Arbitration (note 6), para. 308, where the Tribunal states that although Art. 13 (2) does not ‘expressly’ say that a LTE is not entitled to an EEZ or continental shelf, this ‘restriction is necessarily implied’ in UNCLOS; so that if a LTE is not entitled to a territorial sea, it is also not entitled to an EEZ/continental shelf. 104 Like a normal baseline, a LTE does not generate internal waters immediately behind it like straight-type baselines, despite the fact that Art. 8 (1) defines ‘internal waters’ as all ‘waters on the landward side of the baseline of the territorial sea’ (emphasis added). 105 Jayewardene (note 39), 95 (‘according to established principles’); Churchill/Lowe (note 76), 52, state that any ‘gaps’ of open water between the various reefs may be notionally closed with extra straight lines, as has been done by several States to box in landward waters. 106 Llanos (note 7), 266–267. 107 Ibid., 270. 100

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Art. 14

7. State Practice and International Jurisprudence Several States have explicitly used LTEs as part of their baseline if within the territorial sea 32 distance.108 Several States also109 (such as Ireland and the UK) have incorporated the treaty definitions into their own maritime legislation;110 and have, in some cases, updated them to take account of an expanded territorial sea claim.111 Some States also have indicated a specific tidal datum, such as ‘mean low-water spring tide’ in their legislative definition of LTEs. 112 Despite the fact that expanded territorial sea limits of 12 NM have brought into use additional LTEs as basepoints, the practical effect in many cases may have been small. For example, it has been commented in the case of the US that few areas of the US coast have LTEs which enlarge the US territorial sea to ‘any appreciable extent’. 113 In terms of international case-law, recent decisions of the ICJ and arbitral tribunals have discussed whether LTEs may be appropriated;114 or used as territorial sea basepoints, e. g., in the context of maritime delimitation. In terms of international case law, there has, in the past, been very little detailed or incisive 33 discussion on the definition of LTEs. However, this situation has changed as a result of the Award on the Merits on July 12, 2016, in the Philippines v.China Arbitration concerning several maritime features in the South China Sea, the respective statuses of which were ruled on by the arbitral Tribunal115. In 2014 the Philippines published photographs of several reefs in the South China Sea where China has been ‘reef-building’; and in this case the Philippines asked the arbitral Tribunal to declare that such formations as Mischief Reef were at best mere LTEs, even if they now have artificial islands built upon them; so that consistently with what the ICJ has held in the Qatar/Bahrain case, they do not generate any maritime zones in their own right.116

Article 14 Combination of methods for determining baselines The coastal State may determine baselines in turn by any of the methods provided for in the foregoing articles to suit different conditions. Bibliography: Lucius Caflisch, Les zones maritimes sous jurisdiction nationale, leurs limites et leur delimitation, in: Daniel Bardonnet/Michel Virally (eds.), Le nouveau droit de la mer (1983), 35–116; Robin R. Churchill/Alan V. Lowe, Law of the Sea (3rd edn. 1999); Hartini Dipla, Le regime juridique des iles dans le droit international de 108 E.g., Belgium, uses a lower low-water spring standard, in respect of LTEs near the French border such as Trapegeer, cf. Erik Franckx, Belgium and the Law of the Sea, in: Treves (note 77), 37, 38; and,see, e. g., S. 1 (1) Netherlands Territorial Sea Demarcation Act (1985); cf. Ru¨diger Wolfrum, Germany and the Law of the Sea, in: Treves (note 65), 199, 206; see also Dotinga/Soons (note 89), 365, 367–368. The US has used many LTEs on its coast following extensive surveys, cf. Reed (note 15), 220; as also has the UK, see supra, note 77. On use or nonuse of LTEs in straight baseline practice under Art. 7, see Dipla (note 4), 122–123. 109 Churchill/Lowe (note 76), 55, cite 15 such States, all but one (Saudi Arabia) following the UNCLOS wording. 110 As for Ireland, see Symmons (note 76), 40–41. 111 Lowe (note 66), 521, 522–523. 112 E. g., s. 2 (1)(b) Kiribati Marine Zones (Declaration) Act No. 7 (1983); s. 1 (1) Papua New Guinea National Seas Act No. 7 (1977); s. 2 Trinidad and Tobago Territorial Sea Act No. 38 (1969). 113 US Department of State, Measurement of the U.S. Territorial Sea, Department of State Bulletin No. 1044 (1959), 963, 966–967; but see supra, note 10 and note 76 where LTEs did play an important role in generating maritime zones. 114 Supra, note 27. 115 South China Sea Arbitration (note 6), paras. 382, 383. 116 See Gregory Poling, The Legal Challenge of China’s Island Building, Asian Maritime Transparency Initiative (2015), available at: http://amti.csis.org/the-legal-challenge-of-chinas-island-building/. This issue, as seen, has been dealt with in the Philippines v. China arbitral Award: South China Sea Arbitration (note 6), in section E of its award.

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la mer (1984); Elisio B. Jamine, Maritime Boundaries Delimitation, Management and Dispute Resolution: Delimitation of the Mozambique Maritime Boundaries with Neighbouring States (Including the Extended Continental Shelf) and the Management of Ocean Issues (2006–2007); Myron H. Nordquist/Satya N. Nandan/ Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Tullio Scovazzi/Giampiero Francalanci/Daniela Romano/Sergio Mongardini, Atlas of the Straight Baselines (2nd edn. 1989); Clive R. Symmons, Ireland and the Law of the Sea (2nd edn. 2000) Documents: ILA, Report of the Committee on Baselines under the International Law of the Sea, Washington Conference (2014); ILA, Report of the Committee on Baselines under the International Law of the Sea, Sofia Conference (2012) Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘The coastal State may determine baselines in turn by any of the methods […]’

1 2 3 3

I. Purpose and Function 1

This provision – which had no equivalent in the Convention on the Territorial Sea and Contiguous Zone (CTSCZ)1 – gives implied recognition to the fact that not all, or every part of, coastlines have geographical features which qualify for the more extensive and expansive straight baseline systems allowed for under the UNCLOS where a succession of (often many) consecutive linking points is typical, including even basepoints in an archipelagic baseline system claimed by an archipelagic State (� Art. 47). The principle entails that where, for example, a coastline is not deeply indented, nor has a cluster of islands off it as to meet the requirements of Art. 7 (1),2 the baseline must revert to the normal rule, i. e., the low-tide mark; and so be ‘waisted in’ where such areas occur.3 This principle would in any case be implicit in the UNCLOS,4 but this article spells it out ex abundanti cautela as it were. Thus, many States which have adopted extensive straight baseline systems around their coasts have had to ‘tie in’ those baselines at intervals where geography changes to (often implicitly) bring in coastal areas where the low-tide mark pertains. 5 1 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 129. It may be noted that the ILA Committee on Baselines in the Law of the Sea proposed in its Report at the Washington Conference (2014) proposed a study on the interpretation and relevant State practice on Art. 14, as had been considered in its Sofia conference Report of 2012: ILA, Report of the Committee on Baselines under the International Law of the Sea, Washington Conference (2014), para. 5. See also ILA, Report of the Committee on Baselines under the International Law of the Sea, Sofia Conference (2012). 2 Thus if, for instance, some off-shore islands do not qualify for being tied into a straight baseline system, they can only generate maritime zones from their own individual baselines under Art. 14, cf. Hartini Dipla, Le regime juridique des iles dans le droit international de la mer (1984), 124. 3 Robin R. Churchill/Alan V. Lowe, Law of the Sea (3rd edn. 1999), 33, for such reasons query whether the ‘low-water line’ is really the ‘normal baseline’ for most States. 4 Lucius Caflisch, Les zones maritimes sous jurisdiction nationale, leurs limites et leur delimitation, in: Daniel Bardonnet/Michel Virally (eds.), Le nouveau droit de la mer (1983), 39. 5 E. g. for Australia, see Tullio Scovazzi et al., Atlas of the Straight Baselines (2nd edn. 1989), 76–85; Ireland, ibid., 155; Canada, ibid., 93–98; China, ibid., 105; Colombia, ibid., 109; Denmark, ibid., 115; France, ibid., 129– 131; Italy, ibid., 157; Mexico, ibid., 169; Morocco, ibid., 171; Mozambique, ibid., 173; Portugal, ibid., 195; Senegal, ibid., 197; Russia, ibid., 199–213; Spain, ibid., 215–216; Sweden, ibid., 221. Sometimes this ‘waisting in’ has been done because of prior diplomatic representations from another State, as e. g., in the case of the Irish straight baselines decrees in 1959, in the case of which the original Irish plan to link consecutive points by straight baselines around its whole Southern western and north-western coasts was later scaled down due to British prior objections to a ‘continuous series of lines’, so as to allow reversion in ‘hiatus areas’ to the low-tide mark, where the coastline no longer justified the (then) application of Art. 4 CTSCZ, cf. Clive R. Symmons, Ireland and the Law of the Sea (2nd edn. 2000), 55–57. Relating to the Mozambiquan coastline, it has been remarked that considering the configuration of the coast there, a combination of methods is called for under Art. 14, including normal and straight baselines and closing lines, see Elisio B. Jamine, Maritime Boundaries Delimitation,

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Art. 15

II. Historical Background The history of this new provision (compared with the CTSCZ-regime) is well-documen- 2 ted.6 It resulted from a more detailed Chinese proposal in the 1973 session of the Sea-Bed Committee.7 This was progressively revised to a shorter text in 1976, in particular the phrase ‘with coasts of great lengths and complicated topography’ being omitted. It was then given its own independent article.8

III. Elements 1. ‘The coastal State may determine baselines in turn by any of the methods […]’ The article’s purpose is self-evident and straightforward, though the phrase ‘in turn’ is one 3 aspect of the article which has been seen to give rise to possible interpretation difficulties in that it might imply perhaps a mandatory rotation of baseline systems along any one coastline. It is best interpreted as meaning simply that a State’s baseline system may have to change only wherever the coastal topography merits a different sort of baseline, as the title of the article, ‘combination of methods’ implies.9 In essence this will mean, as seen above, that States, for example, with extensive areas of coastline meriting Art.-7 or Art.-47-type baselines, or even river mouths (Art. 9), bays (Art. 10) or perhaps fringing reefs (Art. 6), are not necessarily entitled to ignore even small ‘hiatus’ areas of straight and ordinary coastline alternating within an otherwise expansive (e.g., straight) baseline system; and must generally interpose in such ‘hiatus areas’ the normal low-tide baseline. There is little evidence of explicit reference to Art. 14 in State practice; though in many 4 instances States have not claimed straight baselines in all areas of their coasts where circumstances do not warrant it, so implicitly following the spirit of Art. 14, a principle which is sometimes alluded to in general terms in maritime legislation.10

Article 15 Delimitation of the territorial sea between States with opposite or adjacent coasts Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the territorial sea of each of the two States is measured. The above provision does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith. Management and Dispute Resolution: Delimitation of the Mozambique Maritime Boundaries with Neighbouring States (Including the Extended Continental Shelf) and the Management of Ocean Issues (2006–2007), 17. 6 Nordquist/Nandan/Rosenne (note 1), 129–130. 7 Ibid., 129. 8 Ibid., 130, having been removed from what became Art. 7 on straight baselines. 9 Ibid. 10 See supra, note 5; for a legislative example, see S. 4 (2)(e) Mauritius Maritime Zone Act, Act No. 2 (2005), reprinted in: UN DOALOS, LOSB No. 62 (2006), 52, 54, which states that baselines may be ‘a combination of the methods for determining baselines specified [above]’, i.e., including archipelagic baselines, normal baselines (‘low-water line’), reefs (under Art. 6), and straight baselines (under Art. 7). See Symmons on Art. 47 where it is stated that it may be particularly apt to vary between straight and low-tide baselines in archipelagic situations.

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Bibliography: David Anderson, Maritime Boundaries and Limits: Some Basic Legal Principles (2001), available at: http://www.gmat.unsw.edu.au/ablos/ABLOS01Folder/ANDERSON.PDF; David Anderson, The Modern Law of the Sea (2008); Nuno Antunes, Towards the Conceptualisation of Maritime Delimitation (2003); I. Made Andi Ardsana, Maritime Delimitation in the Singapore Strait, Hydro International 14 (2010), available at: http:// www.hydro-international.com/issues/articles/id1193-Maritime_Delimitation_in_the_Singapore_Strait.html; Damir Arnaut, Stormy Waters on the Way to the High Seas: The Case of the Territorial Sea Delimitation between Croatia and Slovenia, in: David D. Caron/Harry N. Scheiber (eds.), Bringing New Law to Ocean Waters (2004), 427–466; Matej Avbelj/Jernej L. Cernic, The Conundrum of the Piran Bay: Slovenia v. Croatia – The Case of Maritime Delimitation, Journal of International Law & Policy 5 (2007), 1–19; Jonathan I. Charney/David A. Colson/Lewis M. Alexander/Robert W. Smith, International Maritime Boundaries, vol. II (1996); Aldo Chircop/ David Dzidzornu/Jose Guerreiro/Catarina Grilo, The Maritime Zones of East African States in the Law of the Sea: Benefits Gained, Opportunities Missed, African Journal of International and Comparative Law 16 (2008), 121– 151; Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); Robin R. Churchill, The Bangladesh/ Myanmar Case: Continuity and Novelty in the Law of Maritime Delimitation, CJICL 1 (2012), 137–152; Nugzar Dundua, Delimitation of Maritime Boundaries between Adjacent States (2007); S. P. Jagota, Maritime Boundaries (1985); Shi Jiuyong, Maritime Delimitation in the Jurisprudence of the International Court of Justice, Chinese JIL 9 (2010), 271–291; Zou Keyuan, Implementing the United Nations Convention on the Law of the Sea in East Asia: Issues and Trends, Singapore YBIL 9 (2005), 37–53; Zou Keyuan, Maritime Boundary Delimitation in the Gulf of Tonking, ODIL 30 (1999), 235–254; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Hernando Otero, Law of the Sea Reports, vol. II (2011); Irini Papanicolopulu, A Note on Maritime Delimitation in a Multizonal Context: The Case of the Mediterranean, ODIL 38 (2007), 381–398; Irini Papanicolopulu, From the North Sea to the Bay of Bengal: Maritime Delimitation at the International Tribunal for the Law of the Sea, EJIL: Talk!, Blog of the EJIL, 23 March 2012, available at: http://www.ejiltalk.org/from-the-north-sea-to-the-bay-of-bengal-maritimedelimitation-at-the-international-tribunal-for-the-law-of-the-sea/; Clive Schofield, Parting the Waves: Claims to Maritime Jurisdiction and Division of Ocean Space, Penn State Journal of Law & International Affairs 1 (2012), 40–58; Tullio Scovazzi, Maritime Delimitation Cases before International Courts and Tribunals, MPEPIL, available at: http://www.mpepil.com; Clive R. Symmons, Historic Waters in the Law of the Sea: A Modern ReAppraisal (2008); Yoshifumi Tanaka, Reflections on Maritime Delimitation in the Qatar/Bahrain Case, ICLQ 52 (2003), 53–80; Yoshifumi Tanaka, Predictability and Flexibility in the Law of Maritime Delimitation (2006); Yoshifumi Tanaka, Reflections on Maritime Delimitation in the Nicaragua/Honduras Case (2008), Zao¨ RV 68 (2008), 903–937; Prosper Weil, The Law of Maritime Delimitation: Reflections (1989) Documents: ILC, Report of the International Law Commission, UN Doc. A/2456 (1953) GAOR 8th Sess. Suppl. No. 9, reproduced in: ILC Yearbook (1953), vol. II, 200–269; ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4–12; IHB, Manual on Technical Aspects of the United Nations Convention on the Law of the Sea – 1982 (4th edn. 2006) Cases: Dispute Concerning Delimitation of the Maritime Boundary (Guinea v. Guinea-Bissau), Award of 14 February 1985, ILM 25 (1986), 251; Dubai/Sharjah Border Arbitration, Arbitral Award of 19 October 1981, ILR 91 (1993), 543; ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Netherlands/ Denmark), Judgment of 20 February 1969, ICJ Reports (1969), 3; ICJ, Arbitral Award of 31 July 1989 (GuineaBissau v. Senegal), Judgment of 12 November 1991, ICJ Reports (1991), 53; ICJ, Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment of 16 March 2001, ICJ Reports (2001), 40; ICJ, Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Judgment of 10 October 2002, ICJ Reports (2002), 303; ICJ, Case Concerning Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment of 8 October 2007, ICJ Reports (2007), 659; ICJ, Case Concerning Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia v. Singapore), Judgment of 23 May 2008, ICJ Report (2008), 12; ICJ, Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment of 3 February 2009, ICJ Reports (2009), 61; ICJ, Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment of 19 November ICJ Reports (2012), 624; ITLOS, Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), Provisional Measures, Order of 8 October 2003, ITLOS Reports (2003), 10; ITLOS, Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh v. Myanmar), Judgment of 14 March 2012, available at: http://www.itlos.org/fileadmin/itlos/ documents/cases/case_no_16/C16_Judgment_14_03_2012_rev.pdf; PCA, Grisbådarna Case (Norway v. Sweden), Award of 23 October 1909, RIAA XI, 147; PCA, Case Concerning a Dispute between Argentina and Chile Concerning the Beagle Channel (Argentina v. Chile), Award of 18 February 1977, RIAA XXI, 53; PCA, Award of the Arbitral Tribunal in the Second Stage – Maritime Delimitation (Eritrea v. Yemen), Award of 17 December 1999, RIAA XXII, 335; PCA, Arbitration between Barbados and the Republic of Trinidad and Tobago, Relating to the Delimitation of the Exclusive Economic Zone and the Continental Shelf between Them (Barbados v. Trinidad and Tobago), Award of 11 April 2006, RIAA XXVII, 147; PCA, South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China), Award of 12 July 2016, available at: https://www.pcacases.com/web/ view/7

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1–2

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Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. General Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘agreement’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘opposite or adjacent’ coasts and the ‘median line’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. ‘failing agreement’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. ‘baselines from which the breadth of the territorial seas […] is measured’ . . . . . 6. ‘special circumstances’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. ‘historic title’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8. State Practice and International Jurisprudence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 5 9 9 17 19 21 23 25 35 38

I. Purpose and Function The purposes and functions of this provision are self-evident, being aimed at specifying 1 rules as to fixing maritime boundaries (‘delimitation’ as in the headnote)1 concerning notionally overlapping areas of territorial sea between neighbouring States, whether opposite or adjacent to each other. In the case of opposite States, the rules here expressed only cover areas of overlapping seas less than 24 (12x2) NM wide.2 Problems may arise here generally if two States have differing widths of territorial sea claims; and where the potentially maximum distance seemingly must be applied uniformly in both cases.3 The rules express three basic factors for such maritime boundary-fixing: ‘agreement’ in the first instance, failing which (secondly) the boundary is to be a ‘median’ (i. e., a mid-way line) between the coasts of such States unless (thirdly) ‘special circumstances’ or ‘historic title’ arise (where, accordingly, a different delimitation principle may be used). As such, the rules have more substantive content than those relating to other more extensive zones – the exclusive economic zone (EEZ) and continental shelf (� Arts.74 and 83). A basic aim of this provision, then, is to give some element of objectivity to such 2 delimitation. As the International Law Commission (ILC) stated (with reference to former Art. 12 of the Convention on the Territorial Sea and the Contiguous Zone (CTSCZ)), although ‘special circumstance would probably necessitate frequent departure from the 1 IHB, Manual on Technical Aspects of the United Nations Convention on the Law of the Sea – 1982 (4th edn. 2006), Appendix 1, para. 58, for meaning of ‘maritime delimitation’, namely ‘the determination of a maritime boundary between States effected by agreement’. 2 Nuno Antunes, Towards the Conceptualisation of Maritime Delimitation (2003), 136, stressing the initial need for overlapping potential entitlements; this may mean, as stated in the Dubai/Sharjah Border Arbitration, Arbitral Award of 19 October 1981, ILR 91 (1993), 543, that an island, although entitled to a territorial sea, may have that entitlement affected where a territorial sea boundary with another opposite or adjacent State is involved. This factor was alluded to more recently in ICJ, Territorial and Maritime Dispute (Nicaragua v. Colombia), ICJ Reports (2012), 624, 642 (para. 29), where the ICJ referred to the treatment of the islet of Alcatraz in the Guinea/Guinea Bissau arbitration (1985 RIAA,77, p. 635) and stated (at para. 179, 691 that territorial seas less than 12NMs wide have ‘invariably involved either an overlap between the territorial sea entitlement of States[…. or the presence of a historic or agreed boundary’ (emphasis added). 3 Irini Papanicolopulu, A Note on Maritime Delimitation in a Multizonal Context: The Case of the Mediterranean, ODIL 38 (2007), 381, 387. An example of this problem is the Agreement between the Government of the French Republic and the Government of the United Kingdom of Great Britain and Northern Ireland relating to the Delimitation of the Continental Shelf in the Area East of 30 Minutes West of the Greenwich Meridian, 24 June 1982, available at: http://www.un.org/depts/los/LEGISLATIONANDTREATIES/ PDFFILES/TREATIES/FRA-GBR1982CS.PDF, in the Strait of Dover which was then based on a simplified equidistance line of two areas of territorial seas of 12 NM, although at this time the UK had not extended its territorial sea to this limit (only France had): following extension of the UK territorial sea to 12 NM in 1987, a new delimitation agreement was made to eliminate any interposing ‘high seas’ hiatus (Agreement between the Government of the French Republic and the Government of the United Kingdom of Great Britain and Northern Ireland relating to the delimitation of the territorial sea in the Straits of Dover, 2 November 1988, available at: http://www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/FRA-GBR1988TS.PDF); see further David Anderson, The Modern Law of the Sea (2008), 175, 181–182.

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median line, it was thought advisable to adopt, as a general rule, the system of the median line as a basis for delimitation […].’4 Judging from the fact that few major international disputes have arisen over territorial sea boundaries in the last decades, the delimitation formula here seems to have been efficacious; possibly because the distorting effects of equidistance/median lines are ‘comparatively small’ within such narrower waters; 5 and because the law of territorial sea delimitation is more ‘predictable’ than in the case of more extensive zones – the EEZ and continental shelf – where the element of ‘equity’ more ostensibly applies.6 Indeed, until comparatively recently there had been no important judicial or arbitral decisions on territorial sea delimitation, indicating, it seems, that negotiation of this type of maritime boundary has been generally successful, 7 entailing, as it does, a simpler – and arguably clearer – delimitation provision as compared with that pertaining to more extensive maritime zones.8 It is, however, recently evident that the delimitation principles for the division of territorial sea may differ greatly in their practical results from those relating to more extensive maritime zones; as in the recent ITLOS Bay of Bengal Case where it was the geographical circumstances in the immediate vicinity of the terminus of the Bangladesh-Myanmar border that were relevant in this regard. 9 3 It has been noted by CHURCHILL/LOWE that although each maritime zone demands ‘a separate delimitation’, in practice there has been an ‘increasing tendency’ in third party settlement (i. e., of a judicial or arbitral nature) and bilateral agreements to lay down a ‘single delimitation line’ without distinguishing between the various zones.10 This is further discussed below. 4 In the Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, the International Court of Justice (ICJ) stated that Art. 15 was part of customary law, which was applied there where neither State was party to the UNCLOS. 11

II. Historical Background 5

The historical background is well set out in existing commentaries. 12 Early attempts to fix a rule relating to delimitation of the territorial sea between neighbouring States centred either on ‘straits’ (less than 24 NM wide)13 between two opposite States or centred on those States with lateral boundaries to be fixed, i. e., adjacent States. 14 From an early stage this set the 4 ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4, 5. 5 ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Netherlands/Denmark), Judgment of 20 February 1969, ICJ Reports (1969), 3, para. 59; see also Antunes (note 2), 98, who views the distorting effect of certain features in the vicinity of a coast as being ‘negligible’ in a territorial sea delimitation, and he notes the small number of States at UNCLOS III concerned about Art. 15’s ‘practical impact’. 6 Prosper Weil, The Law of Maritime Delimitation: Reflections (1989), 136; cf. infra, note 28.See also the ICJ, Case Concerning Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment of 8 October 2007, ICJ Reports (2007), 659, 740 (para. 269), where the ICJ stated that the ‘methods governing territorial sea delimitations needed to be, and are, more clearly articulated than for other, more functional, areas’. 7 Damir Arnaut, Stormy Waters on the Way to the High Seas: The Case of the Territorial Sea Delimitation between Croatia and Slovenia, in: David D. Caron/Harry N. Scheiber (eds.), Bringing New Law to Ocean Waters (2004), 427, 428; but see Antunes (note 2), 98 (footnote 442). 8 Arnaut, ibid., 428. 9 See infra, note 33; and Robin R. Churchill, The Bangladesh/Myanmar Case: Continuity and Novelty in the Law of Maritime Delimitation, CJICL 1 (2012), 137, 138. 10 Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 181, 182; indeed, at UNCLOS III there was some support for one regime for the delimitation of all maritime zones, cf. Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 138–141, and the same rules in line with what are now Arts. 74 and 83. 11 ICJ, Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment of 16 March 2001, ICJ Reports (2001), 40, para. 175. 12 See Nordquist/Nandan/Rosenne (note 10), 134–141; also Antunes (note 2), 22, 25, 29–30. 13 Nordquist/Nandan/Rosenne (note 10), 134. 14 Yoshifumi Tanaka, Predictability and Flexibility in the Law of Maritime Delimitation (2006), 32–33.

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pattern of viewpoints which varied from fixing a general rule, on the one hand, or merely accepting a case-by-case solution, i. e., a flexible solution aimed at achieving an equitable result, on the other.15 This dichotomy of viewpoint was typified at the 1930 Hague Codification Conference relating to opposite neighbouring States,16 and where the Conference failed to agree on any general delimitation provision, such as a median line rule. 17 Prior to UNCLOS I, the ILC addressed the topic of delimitation of the territorial sea in two 6 separate articles – draft Arts. 12 and 14 – reflecting the abovementioned format concerning delimiting a territorial sea in straits between opposite States and between adjacent States, in both cases reflecting the ‘median line’ failing agreement, in the absence of any ‘special circumstances’ (following on the recommendation of the Committee of Experts). 18 This 1955 draft was later simplified by combining of the two sets of articles because the delimitation questions in both types of waters were then seen as being essentially the same. 19 At UNCLOS I, the two general approaches reflected earlier involving the median line/ 7 equidistance viewpoint and mutual agreement between such abovementioned neighbouring States continued,20 and Arts. 12 and 14 of the ILC draft were combined into one as Art. 12. 21 It has been aptly commented that the ‘main difficulty’ envisaged at UNCLOS I was the ‘recourse to equidistance’ and the accompanying ‘need to provide for cases where departures [therefrom] would have to be considered’; the former being concerned with ‘geography’, the latter with ‘concerns of equity’.22 Art. 12 CTSCZ enunciated a rule similar to the later-adopted wording of Art. 15 and to 8 that as mentioned, in Art. 6 of the Convention on the Continental Shelf (CSC) on delimitation of the continental shelf.23 The drafting history of Art. 15 has been accordingly viewed as being not complex and as having raised ‘very little controversy’, the wording in Art. 12 CTSCZ remaining ‘substantially unchanged’.24 It is to be noted, though, that the Art. 12 (2) CTSCZ – concerning publicity of delimitation lines – was removed and added to Art. 16.25

III. Elements 1. General Considerations The wording of Art. 15, being virtually identical to that formerly in Art. 12 CTSCZ, 26 has 9 been viewed as crystallising the 1958 CTSCZ equivalent; and so, in effect, it consolidates the previous rule.27 As seen, compared with the delimitation process concerning the more 15

Ibid. Ibid.; see also Nordquist/Nandan/Rosenne (note 10), 135; and S. P. Jagota, Maritime Boundaries (1985), 49–50. 17 Tanaka (note 14), 34. 18 Nordquist/Nandan/Rosenne (note 10), 134. 19 Ibid., 135; ILC Law of the Sea Articles (note 4), 5 (Art. 12); the ILC saw the three elements of agreement, equidistance and special circumstances here as being the same in the case of continental shelf delimitation, cf. David Anderson, Maritime Boundaries and Limits: Some Basic Legal Principles (2001), 5, available at: http:// www.gmat.unsw.edu.au/ablos/ABLOS01Folder/ANDERSON.PDF. 20 Nordquist/Nandan/Rosenne (note 10), 135, 140. 21 Ibid., 135. 22 Antunes (note 2), 26 and 100, where he adds that the equidistance/special circumstances rule offers ‘a balance between an objective element that promotes certainty (equidistance) and an element of flexibility that promotes justice in casu (special circumstances)’. 23 See Antunes (note 2), 152; further below it will be discussed that the only differences seem to be that in Art. 12 CTSCZ reference is made to what has been well named as ‘equidistance by negative prescription’; Tanaka (note 14), 38–39, stating that in the case of Art. 6 CSC, there is additional use of the term ‘equidistance line’ and no reference to ‘historic title’. 24 Antunes (note 2), 98. 25 Nordquist/Nandan/Rosenne (note 10), 139–140. 26 Antunes (note 2), 16; see supra, note 3. 27 Antunes (note 2), 100; Churchill/Lowe (note 10), 183. This was commented on by the ICJ in the Nicaragua/ Honduras Case (note 6), where it noted that Art. 15 of the UNCLOS was ‘virtually identical to the text’ of Art. 12 (1) of the CTSCZ: ibid., 744 (para. 280). 16

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extensive zones – EEZ and continental shelf – territorial sea delimitation has arguably been a simpler process and less controversial; as, for example, distorting effects of equidistant lines are ‘comparatively small within territorial waters’.28 This is so despite the fact that the breakups in more recent years of big federal entities such as the USSR and Yugoslavia – with long coastal facades – have added considerably to the sea areas where territorial sea delimitation is now required, and accordingly also to the list of potential disputes.29 For example, in the recent and on-going Slovenia/Croatia maritime delimitation dispute following the break-up of Yugoslavia, Croatia claims an equidistant line boundary under Art. 15 in the (bordering) Bay of Piran, whereas adjacent Slovenia claims ‘special circumstances’ under the same provision. 10 Furthermore in areas where several islands lie on one or both sides of notional median lines (such as in the Aegean Sea) or where narrow coastal facades exist limiting access to sea, as in case, e. g., of both Bosnia and Slovenia, territorial sea delimitation can become addedly problematic.30 11 It has been pointed out that with an increasing trend towards States adopting a single maritime boundary line by mutual agreement or by requesting same in third party adjudication (as in the ICJ Qatar/Bahrain Case)31, this boundary line may include a territorial sea boundary as well as one combined with an EEZ and/or continental shelf, though States may always decide to delimit the territorial sea separately. 32 The ICJ has defined such a procedure as ‘one uninterrupted boundary line delimiting the various – partially coincident – zones of maritime jurisdiction appertaining to them’;33 and such a line has been requested in several adjudications in recent years,34 most recently in the International Tribunal for the Law of the Sea (ITLOS) Bangladesh/Myanmar dispute, which is discussed below. Indeed, in the Barbados/Trinidad and Tobago Arbitration, the Tribunal stated that State practice had now ‘overwhelmingly resorted to the establishment of single maritime boundary lines’.35 12 In the light of such developments, it may be that some equitable provisions applicable in the past to EEZ/continental shelf delimitation may also be relevant on occasion in a territorial sea area to be delimited either in isolation or as part of a single continuous maritime boundary stretching beyond the territorial sea itself. As pointed out in the 28 North Sea Continental Shelf Cases (note 5), 3, para. 59; arguably also the territorial sea delimitation provisions are less vague than those relating to EEZ/continental shelf delimitation, cf. Tullio Scovazzi, Maritime Delimitation Cases before International Courts and Tribunals, MPEPIL, para. 40, available at: http://www.mpepil.com. 29 Arnaut (note 7), 428. 30 See infra, notes 73 and 140. 31 See Yoshifumi Tanaka, Reflections on Maritime Delimitation in the Qatar/Bahrain Case, ICLQ 52 (2003), 53, 57. 32 Papanicolopulu (note 3), 381, 390. 33 Qatar/Bahrain Case (note 11), para. 173; ITLOS, Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh v. Myanmar), Judgment of 14 March 2012, ITLOS Reports, 28 (para. 62), in this dispute Myanmar was alleged by Bangladesh to have not signed the original Agreed Minutes of negotiations (in 1974 and 2008) because it preferred a ‘comprehensive maritime delimitation’, see also ibid., 29 (para. 66), where there is reference to Myanmar not wishing to sign or ratify a treaty which ‘did not resolve the delimitation dispute in all the different contested areas’ (emphasis added); see also Mynamar’s reference to para. 2 of the ‘Agreed Minutes’ referring to the ‘first sector of maritime boundary’, ibid., 32 (para. 76). 34 E. g., in the cases involving ICJ, Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Judgment of 12 November 1991, ICJ Reports (1991), 53; PCA, Award of the Arbitral Tribunal in the Second Stage – Maritime Delimitation (Eritrea v. Yemen), Award of 17 December 1999, RIAA XXII, 335; ICJ, Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Judgment of 10 October 2002, ICJ Reports (2002), 303; and PCA, Arbitration between Barbados and the Republic of Trinidad and Tobago, Relating to the Delimitation of the Exclusive Economic Zone and the Continental Shelf between Them (Barbados v. Trinidad and Tobago), Award of 11 April 2006, RIAA XXVII, 147: see especially Nicaragua/Honduras Case (note 6), 659 (para. 12), where the Nicaraguan request to the ICJ was to delimit the course of a ‘single maritime boundary’ between the ‘areas of territorial sea’, as well as continental shelf and EEZ, between Nicaragua and Honduras in the Caribbean Sea, which the Court acceded to doing. Note, however, that Judge Oda indicated in his Separate Opinion in the Nicaragua/Honduras Case, ibid. (para. 12), that the aforementioned term usually meant simply a single line for continental shelf/EEZ delimitation purposes. 35 Barbados/Trinidad and Tobago Arbitration (note 34), 71 (para. 235).

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Cameroon/Nigeria Case, the ‘equitable principles/relevant circumstances method’ used in a line covering several zones of jurisdiction ‘is very similar to the equidistance/special circumstances method applicable in the delimitation of the territorial sea’. 36 So that this method may potentially relate to any maritime zone delimitation.37 Certainly there are signs in the case-law that similar principles can apply to all delimitation 13 situations: for example, that of proportionality of coastlines, such as advocated by Myanmar in the ITLOS Bangladesh/Myanmar maritime dispute, relates to Art. 15 just as it may be applied in Arts. 74 and 83.38 Thus, in this recent Bay of Bengal Case, Myanmar argued that the location of the Bangladeshi-owned St Martin’s Island (off-shore of Myanmar) constituted ‘special circumstances’ regarding both the territorial sea delimitation and the EEZ delimitation39 as it could lead to manifest disproportionality;40 arguing that its approach was ‘in accordance with case-law relating both to delimitation of the territorial sea and other maritime zones’,41 and also with State practice where small or middle-sized islands were ‘usually totally ignored’.42 Interestingly, whilst the ITLOS commented in the case that ‘neither case law nor state 14 practice indicates that there is a general rule concerning the effect to be given to islands in maritime delimitation’,43 it then noted that ‘the effect to be given to islands may differ, depending on whether the delimitation concerns the territorial sea or other maritime areas beyond it’.44 So in this case, the ITLOS was to discount the relevant island only in the context of the EEZ/continental shelf delimitation aspect because giving it effect in this instance would ‘cause an unwarranted distortion of the delimitation line’45; as distortion of an equidistance line ‘may increase substantially as the line moves beyond 12 NM from the coast’. 46 It has nonetheless been argued that a territorial sea delimitation is also a ‘two-step’ process 15 (in the absence of an agreement), involving a provisionally drawn equidistance line first and secondly, if necessary, an adjustment of this line to take in ‘special circumstances’, an approach also adopted for the determination of a maritime boundary beyond the territorial sea.47 36 Cameroon/Nigeria Case (note 34), 441 (para. 288); see also Antunes (note 2), 99, who opines, citing the Qatar/Bahrain Case, that dicta there suggest the ‘equitable principles’ doctrine was applicable to zones other than the territorial sea, and that in practice this merely boils down to a general application of the ‘equidistance-special circumstances rule’. In the Qatar/Bahrain Case (note 11), 91 (para. 167), the ICJ stated generally that: ‘The most logical and widely practised approach is first to draw provisionally an equidistance line and then to consider whether that line must be adjusted in the light of special circumstances’: in the southern sector the delimitation involved was effectively of territorial sea of the parties only, whereas in the northern sector, the delimitation involved EEZ/continental shelf: cf. infra, note 114. 37 See the Cameroon/Nigeria Case (note 34), 442 (para. 290); and Papanicolopulu (note 3), 389; note, however, that Bangladesh in its reply in the ITLOS Bay of Bengal Case argued that the case-law showed a distinction on delimitation between treatment of islands (at least) in a territorial sea and those in a continental shelf/EEZ situation, Bay of Bengal Case (note 33), Reply of Bangladesh of 15 March 2011, vol. I, 41 et seq. (paras. 2.81 et seq.). 38 Bay of Bengal Case (note 33), Rejoinder of the Republic of the Union of Myanmar of 1 July 2011, 58 (para. 3.19). 39 Ibid., 55 (para. 3.11). 40 Ibid., 57 (paras. 3.14, 3.15). 41 Bay of Bengal Case (note 33), 47 (para. 136) (emphasis added). 42 Ibid., 47 (para. 137); on Bangladesh’s response to this, see ibid., 47 et seq. (paras. 138 et seq.). 43 Ibid., 50 (para. 147), saying it depended on the ‘particular circumstances of each case’. In so saying, and using the broad phrase ‘maritime delimitation’, the Tribunal might be seen to have implied similar prima facie considerations applying beyond a mere territorial sea delimitation context. 44 Ibid., 50 (para. 148) (emphasis added). 45 Ibid., 96 (para. 318). 46 Ibid.; see also infra, MN 31. The ITLOS indeed commented that most cases referred to by Myanmar in the case were concerning the effect of islands on lines relating to EEZ/continental shelf delimitation and ‘thus were not directly relevant to the delimitation of the territorial sea’: Bay of Bengal Case (note 33), 50 (para. 150). Thus the ITLOS distinguished the treatment of ‘insignificant maritime features’ (such as Qit’at Jaradah in the ICJ Qatar/Bahrain Case (note 11), 104 (para. 219)); see further infra, note 107. 47 Tanaka (note 31), 57–58; see the Qatar/Bahrain Case (note 11), 94 (para. 176) (‘provisionally an equidistance line’).

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Territorial sea delimitation can only, of course, take place where land territory (and so any potential baseline) is not in dispute in the region to be delimited. Thus, for example, in 2008 the ICJ was asked to determine ownership of three land features at the eastern end of the Singapore Strait.48 The Court’s decision on this has now cleared the way for Indonesia, Malaysia and Singapore to delimit their territorial waters in the Strait by subsequent agreement between themselves.

2. ‘agreement’ This word, as in other delimitation situations, reflects the primary rule in all maritime delimitations as being based on the ‘mutual consent’ of the parties involved concerning a boundary line.49 The meaning of the word featured prominently in the recent Bay of Bengal Case in 2012, where the ITLOS had to decide whether, in the context of the request for a delimitation by the Tribunal of the two States’ territorial seas under Art. 15, there was already an ‘agreement’ on this between the two States in the light of their signing of ‘Agreed Minutes’ of 1974 and 2008 (or by ‘tacit agreement’),50 which had provisionally fixed a territorial sea boundary at a mid-point between St Martin’s Island and the Myanmar mainland. 51 Bangladesh had there argued that the 1974 ‘Agreed Minutes’ created rights and obligations for each State and therefore constituted an ‘agreement’ under Art. 15. 52 18 On this issue the ITLOS determined that ‘in the light of the object and purpose of Article 15 [of UNCLOS], the term “agreement” refers to a legally binding agreement’, 53 and admitted that in some circumstances ‘Agreed Minutes’ might constitute such an ‘agreement’.54 The Tribunal concluded that ‘the circumstances in which the 1974 Agreed Minutes were adopted do not suggest they were intended to create legal obligations or embodied commitments of a binding nature’.55 Nor did the Tribunal find the conduct of the parties evidenced any tacit or de facto agreement relating to the territorial sea boundary. 56 It is implicit in this statement that an express and formal treaty-type understanding may not be required stricto sensu under Art. 15, as the Tribunal’s decision57 seems to infer that a tacit or de facto maritime ‘agreement’, as well as the doctrine of estoppel, constitute potentially separate or additional grounds for displacing the remaining wording of Art. 15.58 17

48 ICJ, Case Concerning Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia v. Singapore), Judgment of 23 May 2008, ICJ Reports (2008), 12; and see infra, note 137. 49 Antunes (note 2), 39. 50 Bay of Bengal Case (note 33), 25 (para. 56). 51 Ibid., 25 (para. 57). 52 Ibid., 29 (para. 64); Bangladesh also argued that an ‘agreement’ under Art. 15 need not necessarily be ‘in every sense a formally negotiated and binding treaty’, ibid., 31 (para. 70) (emphasis added), and added that the instant case was similar to the process-verbal ‘agreement’ in the 2009 ICJ Maritime Delimitation in the Black Sea Case, ibid. (para. 74); Bangladesh further argued that agreed minutes could reflect an ‘agreement’ which was legally binding, Reply of Bangladesh (note 37), 26 (para. 2.38). Myanmar argued the opposite on several grounds, Bay of Bengal Case (note 33), 29 (paras. 65, 66). Bangladesh even argued that the word ‘agreement’ in Art. 15 ‘includes, but is not limited to, a “treaty” or a “convention”’, Reply of Bangladesh (note 37), 24 (para. 2.33) (emphasis added). 53 Bay of Bengal Case (note 33), 36 (para. 89). 54 Ibid., 36 (para. 90). 55 Ibid., 37 (para. 93) (emphasis added); the same was found to be true of the 2008 agreed minutes, ibid., 38 (para. 98), these being merely ‘a record of a conditional understanding reached during the course of negotiations […]’, ibid., 37 (para. 92). 56 Ibid., 39 (para. 100). 57 Ibid., 45 (para. 126). 58 Previously the term had also featured more generally in the Cameroon/Nigeria Case (note 34), 429 (para. 263), where the ICJ held that the Maroua Declaration (with chart), 1 June 1975, UNTS 1273, 319, constituted an international agreement in written form in respect of delimitation of the territorial sea area involved there; cited by Bangladesh, Reply of Bangladesh (note 37), 21 (para. 2.25).

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3. ‘opposite or adjacent’ coasts and the ‘median line’ ‘Opposite coasts’ are defined in the IHO Manual as being ‘the geographical relationship of 19 the coasts of two States facing each other’,59 which interposing area of seas may therefore need a boundary delimitation to avoid overlap. ‘Adjacent coasts’ are there defined as ‘the coasts lying between either side of the land boundary between two adjoining States’.60 The same wording as here was used in Art. 12 (1) CTSCZ. Although the line is referred to as a ‘median line’, this is substantially the same as an ‘equidistance’ line. 61 Technically a difference has been made between the two, the first being used in connection with neighbouring opposite States and the second relating to neighbouring laterally-positioned States.62 In practice, however, as has been evident in past delimitation case-law, any supposed difference in construction of either type of line is unclear. 63 So, despite the differing wording, the terms have arguably interchangeable meanings.64 There is, though, some evidence in recent case-law that, where coasts are opposite, the presumption of a median line is stronger than when the coasts are merely adjacent (the Eritrea/Yemen Arbitration Second Stage). 65 A ‘median line’ has been defined as ‘a line every point of which is equidistant from the 20 nearest points on the baselines of two States’,66 the very phrase used in Art. 15 in the first sentence where further use of the word ‘equidistant’ in itself implies the interchangeability between the two terms. Indeed, most recently in the Bay of Bengal Case, the ITLOS observed (in the context of essentially, or at least partially, opposite States) that under Art. 15 ‘the territorial sea of the Parties is to be delimited by an equidistance line’.67 Even in fixing a territorial sea median line eo nomine, certain normally-existing (minor) qualifying coastal features may, for reasons of mutual convenience, be discounted as basepoints for such a line; as, for example, a dubious ‘island’ and certain LTEs in the Bangaladesh/Myanmar dispute, where neither side used such minor basepoints,68 accepting here the ‘low-water line’.69 As such, even an ostensible ‘median line’ may be a ‘modified’ or ‘simplified’ one.

4. ‘failing agreement’ It has been commented that the fundamental rule in territorial sea delimitation is that it 21 should be effected (as now expressed in Art. 15) ‘by the mutual agreement of the parties involved, and not unilaterally’.70 This rule is here negatively expressed, as was also the case in Art. 12 (1) CTSCZ, supposedly to pro tempore regulate a delimitation situation involving

59

IHB Manual (note 1), Appendix 1, para. 69. Ibid., para. 1. Ibid., para. 62; cf., ibid., para. 31, defined as being the same as a ‘median line’. 62 Ibid., para. 62; according to Tanaka (note 31), 76–77, 80, the distinction between adjacent and opposite coasts has not been important in existing judicial and arbitral decisions relating to territorial sea delimitation. 63 See Antunes (note 2), 153. 64 Ibid., 154, he claims, e. g., that the lines involve the same ‘geometric method’ and the seeming differentiation of terminology in Art. 6 CSC has accordingly ‘no juridical relevance’. 65 See Eritrea/Yemen Arbitration Second Stage (note 34); cf. Bay of Bengal Case (note 33), 46 (para. 133), where Myanmar had pleaded that where the dominant coastal relationship is an adjacent one, rather than ‘opposite’, islands in general ‘generate more exaggerated distortions’. 66 IHB Manual (note 1), Appendix 1, para. 59 (emphasis added). 67 Bay of Bengal Case (note 33), 51 (para. 153) (emphasis added): in the case, Myanmar had argued that where the coasts of Myanmar and St Martin’s island were ‘opposite’, a median line was appropriate; but where coasts were no longer opposite, an equidistant line (discounting the island) was called for: cf. Reply of Bangladesh (note 37), 34 (para. 2.61). 68 Reply of Bangladesh (note 37), 28 et seq. (paras. 247 et seq.); cf. further infra, note 76. 69 Bay of Bengal Case (note 33), 51 (para. 156). This line was used by the Tribunal to draw the equidistance line: where comparatively narrow territorial sea zones are in issue, the greater the number of salient basepoints may be needed to obtain an accurate mid-point line, see infra, note 85. 70 Nordquist/Nandan/Rosenne (note 10), 141. 60 61

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notionally-overlapping territorial seas pending agreement on a boundary line. 71 As TANAKA points out, for example, in contrast to Art. 6 CSC, the use of the phrase ‘failing agreement’ (as in Art. 12 CTSCZ), emphasised ‘equidistance by negative prescription’.72 In other words it implies a status quo holding rule73 (as well as a residual rule for finalised delimitation, including third party settlement procedures)74 which applies prima facie in the absence of, and pending, agreement, based on an objective geometric test. 75 This expedient is expressly provided for in some States’ maritime legislation.76 22 To some extent this makes up for the fact that unlike Arts. 74 (2) and (3) and 83 (2) and (3) on (respectively) EEZ and continental shelf delimitation, there is here no express provision here regarding the making of ‘provisional arrangements’ pending the settlement of disputes.

5. ‘baselines from which the breadth of the territorial seas […] is measured’ 23

In the process of drawing an equidistance/median line as a territorial sea boundary – at the first (provisional) stage of the delimitation process or at the final one – it will be necessary to ‘identify baselines’ and ‘relevant coasts’ in the process,77 both of which can give rise to 71 Anderson (note 19), 5; Nordquist/Nandan/Rosenne (note 10), 135: the phrase ‘failing agreement’ was substituted for previous wording at UNCLOS I. 72 Tanaka (note 14), 38 (emphasis added). 73 E. g., The Declaration on the Inter-State Relations between the Republic of Croatia and the Republic of Slovenia, 26 March 1999, Official Journal of Croatia, No. 32/99 (1999), 1089 et seq., concerning the (disputed) Bay of Piran in 1999, relying explicitly on Art. 15, stated that the two disputing coastal States (Croatia and Slovenia) were (while the dispute lasted) ‘obligated to refrain from any type of jurisdiction beyond the line of equidistance’ in the Bay: cf. Arnaut (note 7), 434; and Matej Avbelj/Jernej L. Cernic, The Conundrum of the Piran Bay: Slovenia v. Croatia – the Case of Maritime Delimitation, Journal of International Law & Policy 5 (2007), 6, 10. This is in contrast to the stated EEZ/continental shelf delimitation principles in Arts. 74 and 83; in ITLOS, Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), Request for Provisional Measures, Public Sitting of 25 September 2003, ITLOS Doc. ITLOS/PV.03/02/CORR.1 (2003), 9, Professor James Crawford argued on behalf of Malaysia that Singapore’s use of reclaimed land to push out its equidistant line for territorial sea boundary purposes was an automatic infringement of the first part of Art. 15 because, under this part, Malaysia’s rights had to be preserved pending agreement beyond what had been agreed by treaty in 1979. In the absence of territorial sea delimitation treaties with Turkey in the Aegean, Greece has argued for an equidistance/median line under customary law in overlapping zones, seeing Art. 15 as codifying international law: Statement of Hellenic Republic Ministry of Foreign Affairs of 15 February 2011. 74 E. g., the ICJ, as in the ICJ, Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment of 3 February 2009, ICJ Reports (2009), 61, has borrowed this ‘provisional line’ technique even for determining finalised EEZ/continental shelf delimitation; see further Irini Papanicolopulu, From the North Sea to the Bay of Bengal: Maritime Delimitation at the International Tribunal for the Law of the Sea, EJIL: Talk!, Blog of the EJIL, 23 March 2012, available at: http://www.ejiltalk.org/from-the-north-sea-to-the-bay-of-bengal-maritime-delimitation-at-the-international-tribunal-for-the-law-of-the-sea/. She comments on the ICJ Bay of Bengal Case that the expedient of the provisional equidistance line in the case of the territorial sea area there (giving St Martin’s island full effect) was in line with previous decisions and state practice giving a privileged status to this principle. 75 Anderson (note 19), 4; Antunes (note 2), 98. It seems, therefore, that where agreement on a territorial sea boundary is not, or cannot be, effected, the equidistance line pro tempore acts automatically as ‘a line beyond which […] states cannot exercise their sovereignty’, as well as, more generally, being the presumptive rule in any territorial sea boundary negotiations or international adjudication on same, where it is ‘the starting line for delimitation’. Many territorial delimitation negotiations have started on the basis of a median line being required, e. g., in 1970, regarding the Norway/USSR boundary on the northern border when Norway advocated a midway line under Art. 15 as the normal practice internationally, though the USSR argued the ‘sector principle’ should apply. 76 States which have provided for such a provisional unilateral territorial sea delimitation method in their legislation in cases where there has been, as yet, no mutual agreement on a line include Mozambique (Art. 5 Mozambique Maritime Zones Sea Law), cited by: Aldo Chircop et al., The Maritime Zones of East African States in the Law of the Sea: Benefits Gained, Opportunities Missed, African Journal of International and Comparative Law 16 (2008), 121, 147; Kenya has similar provision except that its claimed median line with an adjacent State is ‘not premised on the absence of agreement with that State’, ibid.; see also Art. 6 of the Law on the Territorial Sea and Contiguous Zone of the Republic of China, which states: ‘In the event that [its] territorial sea […] overlaps […] the delimitation shall be the median line […]’. 77 Tanaka (note 14), 110;eg., in the setting of a third party settlement procedure, whether the parties have specified them or not; the parties may, indeed, often dispute what the relevant basepoints are: Bangladesh argued

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problems of a ‘technical nature’78 at a negotiation stage.79 Thus, for example, where disputing parties do not agree on relevant baselines, on any referral of a delimitation dispute to an international tribunal, the latter will have to determine such baselines (for any median line purposes) independently; i. e., sua sponte80, whether these are based on possible low-water lines, straight baselines,81 LTEs etc. Importantly also, as the ICJ case-law shows, a baseline adopted by any particular disputing State is not binding on another in a territorial sea (or indeed EEZ/continental shelf)82 delimitation adjudication situation. For example, in the Qatar/Bahrain Case, the ICJ disallowed in such delimitation circumstances Bahrain’s claimed straight (or archipelagic) baselines.83 However, disputing States may themselves come to a mutual agreement, for reasons of convenience, to ignore certain basepoints in fixing a median line.84 In fixing such a line, there may be a dispute not only as to individual basepoints being 24 used, but also their numbers, as in the Bay of Bengal Case, where Myanmar complained that Bangladesh’s claimed choice of insular basepoints in its construction of a provisional equidistance line would determine the course of the territorial sea boundary over its whole

in its Reply (note 37), 35 (para. 2.65), that Myanmar had ignored the first sentence of Art. 15 by employing a ‘hybrid line’, ‘based on artificial coastal control points’ rather than points derived ‘from an actual geographical situation’. 78 Antunes (note 2), 98 (footnote 442). 79 The claim to different baselines, e. g., in the case of the Singapore Strait between Malaysia, Indonesia and Singapore, may hamper the necessary tripartite agreement on a boundary there; most particularly in the Public Sitting of the ITLOS Land Reclamation Case (note 73), 7, Malaysia denied that Singapore could unilaterally use its artificial extension of its land by reclamation as basepoints there (as the latter claimed, cf., ibid., 11, per Professor James Crawford, and 13, per Professor Nicolaas J. Schrijver) for an as yet not agreed part of the territorial sea boundary between Singapore and Johor. The earliest Treaty between the Republic of Indonesia and the Republic of Singapore relating to the Delimitation of the Territorial Seas of the Two Countries in the Strait of Singapore, 25 May 1973, UNTS 2528, 3 was, incidentally, deficient in that it had not specified a geodetic datum (as now required under Art. 16 (1)); this was remedied in the Treaty between the Republic of Indonesia and the Republic of Singapore relating to the Delimitation of the Territorial Seas of the Two Countries in the Western Part of the Strait of Singapore, 10 March 2009, UNTS 2713, 1, where WGS84 is the datum specified, cf. I. Made Andi Ardsana, Maritime Delimitation in the Singapore Strait (2010), available at: http://www.hydro-international.com/issues/articles/id1193-Maritime_Delimitation_in_the_Singapore_Strait.html. 80 In the Qatar/Bahrain Case (note 11), 94 (paras. 177 et seq.), e. g., the ICJ had first to identify baselines for equidistance purposes which was a matter on which neither party had even seemingly submitted details or maps, so leaving the task to the Court; cf. further Tanaka (note 31), 59 et seq. In its pleadings, Qatar argued for a mainland-to-mainland method, including Hawar Island and Bahrain Island, ignoring any other formations and based on a high-water line, Qatar/Bahrain Case (note 11), Counter Memorial of Qatar, 31 December 1997, 228 et seq. (paras. 7.24 et seq.). According to Tanaka (note 31), 62, this approach was seemingly rejected by the ICJ. Bahrain, by contrast, argued for a baseline connecting its outermost islands and LTEs, Qatar/Bahrain Case (note 11), Reply of the State of Bahrain, 30 May 1999, paras. 287 et seq. The ICJ rejected any use of a high-water line baseline in the Qatar/Bahrain Case (note 11), 97 et seq. (paras. 184 et seq.), and made rulings over certain formations of dubious insular status – Fasht al Azm, Qit’at Jaradah, and Fasht ad Dibal – concluding that Qit al Jaradh was an island to be taken into account as a baseline; the latter being disregarded as a LTE lying within the territorial sea of both States. 81 It had been intended by the ILC to include in the process both normal, i. e., low-tide, and ‘straight’, baseline systems, ILC, Report of the International Law Commission, UN Doc. A/2456 (1953) GAOR 8th Sess. Suppl. No. 9, reproduced in: ILC Yearbook (1953), vol. II, 271. 82 See Black Sea Case (note 74), 108 (para. 137): determination of basepoints is ‘an exercise which always has an international aspect’, and in ‘delimitation of maritime areas’ the ICJ ‘should not base itself solely on the choice of basepoints made by one of [the] parties’. 83 Qatar/Bahrain Case (note 11), 103 (paras. 212 et seq.). 84 In the Bay of Bengal Case (note 33), 78 (paras. 247 et seq.), e. g., Myanmar in its pleadings pointed out that several potential basepoints had been excluded by both sides in the territorial sea delimitation discussions in previous documents aimed at fixing a provisional equidistance line, including, e. g., exclusion of certain LTEs off Myanmar’s coast, even though these could, of course, be used as normal baselines for measuring the breath of the territorial sea, and would otherwise have been the nearest relevant basepoints for construction of such a line; ibid., 51 (para. 156). In the context of the territorial sea delimitation and median line, the Tribunal accordingly accepted the use of basepoints selected by the parties on the low-water lines of their coasts for fixing an equidistance line on an Admiralty chart.

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course.85 Thus a reasonably representative selection of basepoints may be required to give a ‘balanced’ median line in such narrower waters.86

6. ‘special circumstances’ This exception – based on the idea of ‘equity’ and to ‘correct inequitable results’ of the application of equidistance87 – was originally contained in Art. 12 CTSCZ.88 The ILC had noted, prior to that convention’s adoption, that ‘special circumstances’ would ‘probably necessitate frequent departures from the mathematical median line’; but it still thought it was ‘able to adopt, as a general rule, the system of the median line as a basis for delimitation’.89 As will be seen below, this prediction has been largely borne out by judicial decisions and State practice. 26 There has, at times, been criticism of the abovementioned proviso to a median line for being cast in ‘exceedingly general terms’,90 and until recently there was little in the way of case-law to elucidate the phrase.91 The idea behind it found early expression in the Grisbådarna Case where the tribunal ignored a median line and used instead a line perpendicular to the general direction of the coast to come to a just solution. 92 The phrase, however, received much judicial attention in the recent Bay of Bengal Case, where the ITLOS emphasised its importance as part of a residual and routine rule: by stating that it followed ‘from article 15 that before the equidistance principle is applied, consideration should be given to the possible existence of historic title or other special circumstances relevant to the area to be delimited’.93 However, the final effect of applying any special circumstance considerations in modifying a median line may be minimal.94 And, in any event, as Bangladesh opined in the Bay of Bengal Case, the burden of proof here may be on the State which has raised the existence of special circumstances. 95 27 Just what ‘special circumstances’ may include is unclear without any ‘authoritive definition’, as at UNCLOS I, where any examples mentioned in the records are ‘merely illustrative’.96 However, in the past matters such as exceptional configuration of coastlines (e. g., concavity and convexity, as was largely the situation in the ICJ Nicaragua/Honduras Case) 97, 25

85 Cf. ibid., 79 (paras. 251 and 254), concerning Bangladesh’s assertion on this, as well as alleged inconsistency with ‘geographic realities’. 86 Reply of Bangladesh (note 37), 83 (para. 3.97). 87 Tanaka (note 14), 40. 88 Nordquist/Nandan/Rosenne (note 10), 135. 89 ILC Report (note 81), 271 (emphasis added). 90 Anderson (note 70), 4. 91 Arnaut (note 7), 448. 92 PCA, Grisbådarna Case (Norway v. Sweden), Award of 23 October 1909, RIAA XI, 147 et seq.; commented on by Antunes (note 2), 42 et seq. 93 Bay of Bengal Case (note 33), 45 (para. 129). 94 For example, in PCA, Case Concerning a Dispute between Argentina and Chile Concerning the Beagle Channel (Argentina v. Chile), Award of 18 February 1977, RIAA XXI, 53, the Tribunal stressed matters other than equidistance, but found none of these had ‘resulted in much deviation from the strict median line’. 95 Bay of Bengal Case (note 33), 49 (para. 142); see further infra, note 116. 96 Tanaka (note 14), 42. 97 For instance, in the Nicaragua/Honduras Case (note 6), 742 et seq. (paras. 277 et seq.), the ICJ determined it was impossible to identify basepoints and construct a provisional equidistance line for single maritime delimitation purposes, and that this in itself amounted to ‘special circumstances’ where the equidistance rule could not apply. Added to this was the fact here that the baselines were unstable at the mouth of the River Coco, so making construction even of a provisional equidistance difficult. The ICJ referred to the volatile coastal topography where continued accretion ‘might render any equidistance line so constructed today arbitrary and unreasonable in the near future’, ibid., 746 (para. 286); so that an alternative method of delimitation was necessary, see infra, note 140. As the Court noted (ibid., 744 (para. 280), nothing ‘in the wording of Article 15 suggests that geomorphological problems are per se excluded from being “special circumstances” within the meaning of the exception, nor that such “special circumstances may only be used as a corrective element to a line already drawn’(emphasis added). See also Shi Jiuyong, Maritime Delimitation in the Jurisprudence of the International Court of Justice,

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islands, navigational channels or security matters98 and fishery interests have been mentioned as examples.99 Of these, small islands may be the most common and problematic,100 as discussed below. Small insular features, particularly where situate far from their owner’s coast, may indeed 28 be considered as constituting typical ‘special circumstances’, as recent case-law shows. In the Bay of Bengal Case, Myanmar claimed that Bangladeshi St Martin’s Island (8 km 2 in area and populated),101 and lying immediately off Myanmar’s coast, was a special circumstance as it was on the ‘wrong side’ of an equidistance line drawn between the mainland coasts and was (allegedly) a ‘relatively small feature’.102 In its pleadings Bangladesh had argued, inter alia, that, relating to the interposing of St 29 Martin’s Island, the case-law cited by Myanmar supported less than full effect on a median line relating to delimitation instances concerning the EEZ or continental shelf, and not the territorial sea.103 The ITLOS agreed with this, stating that such case-law (and, indeed, State practice) was ‘not directly relevant to the delimitation of the territorial sea’. 104 Bangladesh had attempted to distinguish the treatment by the ICJ of insular features in the previous Qatar/ Bahrain Case.105 In that case, the ICJ, having drawn a provisional equidistance line, decided certain insular features should be disregarded as baselines as being ‘special circumstances’ – Fasht al Azm because of its proximity to Qatar’s coast (and its consequent disproportionate effect)106 – and a Bahraini-claimed small formation called Qit’at Jaradah 107, a small portion of which was above high tide and so technically an island, located about midway in the parties’ overlapping territorial seas to the north east of Bahrain. In that case the ICJ gave the latter formation effectively no influence on the delimitation in passing the boundary line just to its east to avoid a disproportionate result because of a special circumstance. 108 Chinese JIL 9 (2010), 271, 280; Yoshifumi Tanaka, Reflections on Maritime Delimitation in the Nicaragua/ Honduras Case (2008), Zao¨RV 68 (2008), 903, 910 et seq. 98 E. g. at UNCLOS I the UK mentioned in this context the presence of a navigational channel (UNCLOS I, 60th Meeting, UN Doc. A/CONF.13/C.1/L.62 (1958), OR III, 186, 189; UNCLOS I, 32th Meeting, UN Doc. A/ CONF.13/C.4/L.28 (1958), OR VI, 93); Tanaka (note 31), 62, referring to the Qatar/Bahrain Case, where channel navigation matters and security were raised. In the Beagle Channel Arbitration (note 94), 146 (para. 110), the Court mentioned ‘convenience, navigability, and the desirability of enabling each Party so far as possible to navigate in its own waters’, and specifically referred to the situation of median-line divergence near Gable Island where ‘the habitually used navigable track [had] been used’. 99 Antunes (note 2), 33. 100 See, e. g. Sea-Bed Committee, Turkey: Draft Article Related to the Following Items: 2.3.1, 5.3, 6.7.2, UN Doc. A/AC.138/SC.II/L.22 (1973), regarding the ‘existence of islands or islets’. 101 Bay of Bengal Case (note 33), 49 (para. 143). 102 See Churchill (note 9), 140; and Bay of Bengal Case (note 33), 46 et seq. (paras. 132, 134); and see Reply of Bangladesh (note 37), 36 (paras. 2.66 et seq.), arguing Myanmar’s alleged wrongful interpretation of the ‘wrong side’ phrase and its ‘cartographic manipulation’ which necessitated departure from a median line; cf. further ICJ, Bay of Bengal Case (note 33), 46 (paras. 131 et seq.), being situate ‘immediately off the coast of Myanmar’ (about 6.5 NM from the endpoint of the land boundary and 4.5 NM and 4.9 NM from Myanmar, the bestowal of full effect to which would lead to a ‘considerable distortion with respect to the general configuration of the coastline, created by a relatively small feature’, and thus (allegedly) calling for ‘shifting or adjusting the median line’. Bangladesh, on the other hand, stressed the fact that the island was within its own twelve NM limit: this point was accepted by the Court. 103 Bay of Bengal Case (note 33), 48 (paras. 140 et seq.); Bangladesh had cited three ICJ cases – the Qatar/ Bahrain Case, Nicaragua/Honduras Case and the Black Sea Case – to support its plea that the island should have full effect in a territorial sea delimitation. 104 Bay of Bengal Case (note 33), 50 (para. 150). 105 Ibid.; Reply of Bangladesh (note 37), 38 et seq. (para. 2.74): here, as seen above, the ICJ was asked to draw a single delimitation line which included territorial sea. 106 Qatar/Bahrain Case (note 11), 80 (para. 128). 107 A very small, uninhabited, islet situate more than 10 miles from the respective coastlines. 108 Qatar/Bahrain Case (note 11), 104 et seq. (para. 219); see generally Tanaka (note 31), 62, 78, who points out that in so doing the ICJ deprived it of any insular territorial sea: Qatar/Bahrain Case (note 11), 97 (para. 185). The ICJ stressed the equal right of islands regardless of size and status, to generate baselines and maritime rights; ibid., 104 (para. 218); however, in the light of disproportionate proximity of such formations to Qatar’s mainland, the Court considered that the special circumstances here ruled out an equidistance line; cf.

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In its judgment in the Bay of Bengal Case, the ITLOS determined there were no reasons why the abovementioned island (St Martin’s) should be treated as a ‘special circumstance’; so that it had full effect in the territorial sea boundary.109 On this the Tribunal noted that the island was ‘located almost as close to Bangladesh’s mainland coast as to the coast of Myanmar’ and was within Bangladesh’s mainland-generated territorial sea; 110 but it also opined that it was ‘not unprecedented’ in case-law for ‘insignificant maritime features’ to be given less than full effect in delimitation.111 However, the Tribunal applied ‘pursuant to Art. 15’ an equidistance line here as there were ‘no compelling reasons’ for treating it ‘as a special circumstance for the purposes of article 15’:112 as it concluded that ‘St Martin’s Island is a significant maritime feature by virtue of its size and population and the extent of economic and other activities’.113 31 In contrast, however, the island was given no equidistance effect in the continuing single maritime boundary in that case,114 which, as seen, indicates the differing effect which ‘equitable’/special circumstances may have in territorial sea delimitations, on the one hand, and delimitation of more extensive zones, on the other. 32 The initial reference to a ‘median line’ in Art. 15 has prompted more than one commentator to view the wording in Art. 15 as having a ‘clear preference’ for use of an equidistance line (rather than resort to ‘special circumstances’), in contrast to the rules in Arts. 74 and 83 (where there is no mention of a median/equidistance line). This is despite the fact that the ‘special circumstances’ proviso in Art. 15 arguably has the same meaning as the ‘equidistance/‘equitable solution’ rule more generally used in EEZ/continental shelf delimitations decided by international tribunals.115 And in similar fashion, TANAKA concludes that whilst the hierarchical relationship between equidistance and special circumstances is problematic, the travaux pre´paratoires to Art. 12 CTSCZ favour viewing ‘equidistance’ circumstances as the principle and ‘special’ circumstances as the exception. 116 33 Others see it more as a single rule which arises proprio motu. ANTUNES, for example, whilst agreeing that the onus probandi of special circumstances rests with the ‘claiming party’ – with equidistance here acting as a ‘juris tantum presumption’117 – nonetheless opines that ‘adjudicating bodies are entitled to investigate the matter’ on their ‘own initiative’. 118 30

further Tanaka (note 31), 112. Thus the disproportionate effect of small insignificant features both close to land and further out to sea may potentially amount to ‘special circumstances’ in territorial sea delimitation. 109 See Churchill (note 9), 141. 110 Bay of Bengal Case (note 33), 50 (para. 149). 111 Ibid., 51 (para. 151); by contrast, here the island in question was to be ‘given full effect in drawing the delimitation line’, ibid., 51 (para. 152). 112 Ibid., 51 (para. 152); see also the treatment of small insular formations in Eritrea/Yemen Arbitration Second Stage (note 34), 37 et seq. (paras. 115 et seq.). 113 Bay of Bengal Case (note 33), 51 (para. 151). 114 On the EEZ/continental shelf delimitation, see ibid., 82 (para. 265); this more extensive zone was found to commence where the outer limit of the 12 NM territorial sea around the island intersected with the equidistance line drawn by the ITLOS, so giving the island, in this instance, merely ‘a full 12-mile territorial sea at the expense of a small part of Myanmar’s EEZ and continental shelf’ (cf. Churchill (note 9), 145), but no effect otherwise on the single maritime boundary. This was similar to the solution decreed in the Dispute Concerning Delimitation of the Maritime Boundary (Guinea v. Guinea-Bissau), Award of 14 February 1985, ILM 25 (1986), 251, 298, where, in part at least, a territorial sea boundary had to be fixed by the tribunal, and in which case, the maritime boundary was drawn to allow an island lying just south of the main delimitation line to have a territorial sea to its west. 115 Clive Schofield, Parting the Waves: Claims to Maritime Jurisdiction and Division of Ocean Space, Penn State Journal of Law & International Affairs 1 (2012), 40, 49; see also Antunes (note 2), 90. 116 Tanaka (note 14), 40; in the Bay of Piran dispute, for example, Slovenia has argued that the principle of equidistance is the general principle which must always be applied unless the ‘exception’ (or agreement) applies (or there is otherwise agreement), so that as an exception, the phrase ‘special circumstances’ must be narrowly construed with burden of proof on the invoker – hence Croatia says Slovenia must prove them, cf. Avbelj/Cernic (note 73), 13. 117 Atunes (note 2), 34. 118 Ibid., 35: he views the related France-United Kingdom Arbitration, reprinted in: ILM 18 (1979), 397, as being effectively concerned with continental shelf delimitation.

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Such a difference of views indicates that it may be a vain exercise to read any hierarchical 34 order into the median line/‘special circumstances’ interpretation in Art. 15; and the recent dicta of the ITLOS in the Bay of Bengal Case119 and other tribunals tend to support this viewpoint; as, for example, in the 1999 Eritrea/Yemen Arbitration Second State, 120 where a single maritime boundary was in issue, and the arbitral tribunal was concerned with delimiting some areas of overlapping territorial sea. Concerning the latter, the tribunal decided that such areas were to be divided by a median/equidistance line, unless a variation was required because of special circumstances. Thus the tribunal effectively stated that it would approach the delimitation issues using, as a rebuttable presumption, the proposition that the median line fitted the requirements not only of Arts. 74 and 83, but also Art. 15. 121 However, the tribunal still only gave the three sets of mid-sea islands involved there a partial effect in this exercise when taking into account the overlapping territorial seas.

7. Historic Title The reference to historic title was added to the original ILC draft to follow the phrase 35 ‘special circumstances’ at UNCLOS I.122 Such a proviso is not mentioned in other ‘delimitation provisions’ of the Convention, such as Arts. 74 and 83.123 There is here no definition of the term ‘historic title’, which theoretically might include both historic ‘rights’ as well as historic ‘title’ stricto sensu, such as including claims to historic waters. 124 However, the arbitral Tribunal in the Philippines v. China South China Sea Arbitration has recently clarified the meaning of the phrase, albeit in the wider context of the meaning of ‘historic titles’ in Art. 298(1)(i)(a) of UNCLOS: to mean a ‘reference to claims to sovereignty over maritime areas derived from historical circumstances’125. In other words, both references in UNCLOS to ‘title’ – in Art. 15 and Art. 298 – have the same meaning which excludes any reference to non-sovereign historic claims as in the separable doctrine of ‘historic rights’. 126 As the phrase following it is formulated – ‘or other special circumstances’ (emphasis added) – the natural and ordinary meaning here implies that historic title is merely a special, and ‘spelt–out’, special circumstance; and so is not to be viewed as a ‘stand-alone’ exception to a median line, at least where all that is claimed in the area to be delimited is merely ‘historic rights’.127 The ITLOS in the Bay of Bengal Case,128 commented that neither party had

119 See the ITLOS’s dictum in the case Bay of Bengal Case (note 33), 45 (para. 127), which implies a preliminary testing of any ‘median line’ sua sponte by the Tribunal. 120 See Eritrea/Yemen Arbitration Second Stage (note 34), 41 (paras. 131 and 132). 121 Ibid., 27 (para. 83): ‘[…] the Tribunal has taken as its starting point, as a fundamental point of departure, that, as between opposite coasts, a median line obtains’. 122 Nordquist/Nandan/Rosenne (note 10), 135; cf. Antunes (note 2), 31: Germany had suggested the addition of historic rights to that of special circumstances at UNCLOS I, Federal Republic of Germany: Proposal (Article 12), UN Doc. A/CONF.13/C.1/L.121 (1958), OR III; see further Tanaka (note 14), 42. 123 See Clive R. Symmons, Historic Waters in the Law of the Sea: A Modern Re-Appraisal (2008), 45; and Tanaka (note 31), 39. 124 Antunes (note 2), 98. 125 Award in the arbitration between the Philippines v. China: PCA, South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China), Award of 12 July 2016, para. 226, available at: https://www.pcacases.com/web/view/7. As the Tribunal stated (ibid., para. 225),’[h]istoric rights may include sovereignty, but may equally include more limited rights,such as fishing rights[…];whereas by contrast, the term “historic title” is used specifically to refer to historic sovereignty to land or maritime areas’. 126 In so finding the Tribunal noted the history of the phrase; as introduced by Norway to reflect the ICJ’s judgment in the Anglo-Norwegian Fisheries Case (1951); and to imply ‘an area of sea claimed exceptionally as internal waters’; so that the phrase in Art. 12 of the TSC (1958) was intended to have the same meaning (para. 221), this being then verbatim adopted in Art. 15 of UNCLOS ‘without significant discussion’ (ibid., para. 223). 127 Symmons (note 123), 4–6. 128 Bay of Bengal Case (note 33), 45 et seq. (para. 129): ‘consideration should be given to the possible existence of historic title or other special circumstance relevant to the area […]’ (emphasis added).

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invoked any historic grounds; and the tribunal accordingly found no evidence of such title. 129 However, the abovementioned implication is denied by some commentators. 130 36 Claims to historic title are rare in territorial sea delimitation disputes. However, it has been raised as an issue in the on-going Piran Bay dispute, where Slovenia has claimed the existence of both special circumstances and historic title (a historic bay).131 The 1974 Agreement between Sri Lanka and India on the Boundary in Historic Waters between the two Countries (1974) may be an actual example where such considerations were taken into account, though the agreement makes no reference to the territorial sea as such, merely stating in its Art. 4 that each State shall have sovereignty and exclusive jurisdiction over the ‘waters’ etc. falling its own side of the there-agreed boundary in the ‘historic waters’ area. 132 37 The matter of historic rights has also surfaced in international case-law. For example, this aspect was raised by Bahrain in the Qatar/Bahrain Case, but seemingly only in the context of the delimitation line outside the territorial sea.133 In a similar way, claimed ‘traditional Red Sea fishery rights’ were raised in the Eritrea/Yemen Arbitration Second Stage, but here the invocation of an ‘immemorial regime’ relating to fishery practices had no effect on the adjudicated maritime boundary.134 129 Eritrea/Yemen Arbitration Second Stage (note 34), 40 et seq. (para. 130). See also the Nicaragua/Honduras Case (note 6), 745 (para. 281), where the ICJ noted that it found the situation to be within the exception provided for in Art. 15 UNCLOS, namely ‘special circumstances’, in which it could not apply the ‘equidistance principle’; but in the case of the islands there involved (all with overlapping territorial seas), the Court noted, that it had already determined that in their case that there was ‘no existing “historic” or traditional line along the [alleged] fifteenth parallel’ (ibid., 740 (para. 267), emphasis added). 130 Cf. e. g., Nugzar Dundua, Delimitation of Maritime Boundaries between Adjacent States (2007), 81, available at: http://www.un.org/depts/los/nippon/unnff_programme_home/fellows_pages/fellows_papers/dundua_0607_georgia.pdf; and Antunes (note 2), 36–38, who, whilst accepting that the UNCLOS I travaux pre´paratoires seemed to comprise both ‘historic titles and historic rights’ within the whole phrase (as the word ‘other’ implies), nonetheless opines that, as to territorial sea delimitation, there has to be an ‘overlapping of potential entitlements’ as a sine qua non for such; and existence of such a title ex hypothesi precludes this exercise: whereas where mere ‘historic rights’ are in issue, they are no more than ‘special circumstances’. Both authors, thus, argue that in its most extreme application, historic title may rule out any need for delimitation of the area affected for lack of any overlap; see further Dundua, ibid., 81; alleged historic ‘title’ is, however, often controversial where claimed, and may be illusory in any particular instance, so that there may in fact still exist a situation where territorial sea claims overlap despite such a claim. For example, in the case of the agreed China/ Vietnam boundary in the Gulf of Tonkin (Agreement between the People’s Republic of China and the Socialist Republic of Viet Nam on the Delimitation of the Territorial Seas, the Exclusive Economic Zones and Continental Shelves in Beibu Bay/Bac Bo Gulf, 25 December 2000, LOSB 56, 137), points 1 et seq. of the Treaty divide respective territorial seas in the Gulf to connect with the EEZ/continental shelf delimitation line, and the claim of Vietnam that since 1887 the Vietnamese part of the Gulf constituted ‘historic waters’ was not taken into account as it was not recognised by China. However, prior to this, Vietnam claimed internal waters in the Gulf, so allegedly eliminating the need for territorial sea baselines there: cf. Zou Keyuan, Implementing the United Nations Convention on the Law of the Sea in East Asia: Issues and Trends, Singapore YBIL 9 (2005), 1, 12, 13; and Zou Keyuan, Maritime Boundary Delimitation in the Gulf of Tonkin, ODIL 30 (1999), 235, 242–250. 131 This claim was made on the basis that the bay belonged to the Piran municipality: in this dispute, however, Croatia has argued that at least one of the cumulative requirements for an historic bay is not fulfilled, cf. Avbelj/ Cernic (note 73), 6–13. Slovenia has claimed that the bay is a ‘sui generis’ case which demands ‘strict respect for historic title’, and so rejection of the ‘equidistance method’. The claim seems to be based on uti possidetis and extensive use of and claimed jurisdiction over waters in the Bay by Slovenia. In a tentative agreement of 2001, Croatia and Slovenia apparently agreed a line in the bay giving Slovenia 80 % of its waters, but this was soon afterwards rejected in Croatia, cf. Arnaut (note 7), 436 et seq. 132 The case has been viewed as involving a territorial sea delimitation and a ‘modified median line’, see Churchill/Lowe (note 10), 183. 133 See Tanaka (note 31), 63; the claim by Bahrain to the effect that its alleged historic rights over pearling grounds to the north of Qatar constituted special circumstances requiring the shifting of a provisional median line further east, was rejected by the ITLOS in Bay of Bengal Case (note 33), 73 (para. 231) and 75 (paras. 235 and 236), as the activity had long since finished and local practice had never recognised that control over such fisheries gave territorial rights to the pearling grounds or their superjacent waters. 134 Here the Arbitration Tribunal, in deciding to fix an equidistance boundary between two sets of small islands, indicated that it saw no reason to vary the ‘normal methods for drawing an equidistance line’ on the basis of either ‘historic title or other special circumstances’, Eritrea/Yemen Arbitration Second Stage (note 34), 47 (para. 158). See also supra, note 127.

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8. State Practice and International Jurisprudence Several existing delimitation agreements are concerned specifically with delimitation of the 38 territorial sea or territorial waters,135 often as a prelude to later, and separate, delimitation by treaty of the EEZ/continental shelf beyond such waters.136 Other agreements take a more ‘holistic’ policy, by delimiting the territorial sea and EEZ/continental shelf areas at one and the same time.137 Some delimitations of the territorial sea have also included the protective ambit of the contiguous zone,138 or concerned the division of territorial straits.139 In the absence of any delimitation treaty, some States have acted to unilaterally delimit the boundary of their territorial seas.140 Several existing delimitation treaties, possibly for reasons of ‘special circumstances’ 141 have 39 used, in whole or in part, a line other than an equidistant one, such as a mid-channel line, 142 135 See, e. g., the Exchange of Notes between the United Republic of Tanzania and Kenya concerning the Delimitation of the Territorial Waters Boundary between the two States 17 December 1975–9 July 1976, available at: www.un.org./depts./los/…/PDFFILES/TREATIES/TZA-KEN1976TW.PDF; and the Agreement between the Government of Malaysia and the Government of the Republic of Singapore to Delimit Precisely the Territorial Waters Boundary in Accordance with the Straits Settlements and Johore Territorial Waters Agreement 1927, 26 April 1995, available at: http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/STATEFILES/SGP.htm. 136 E. g., the Turkey/USSR Treaty of 1973 entitled Agreement between the Government of the Republic of Turkey and the Government of the USSR Concerning the Establishment of the Maritime Boundary between Turkish and Soviet Territorial Waters in the Black Sea, 23 June 1978, UNTS 990, 201. 137 As in the Agreement between the Republic of Turkey and the Republic of Bulgaria on Determination of the Boundary in the Mouth Area of the Mutludere/Rezovska River and Delimitation of the Maritime Areas between the Two States in the Black Sea, 4 December 1997, UNTS 2087, 5, which delimits the territorial sea (Art. 3) separately from the continental shelf and EEZ (Art. 4); see also US Department of State, Exchange of Notes between France and Portugal Regarding the Maritime Boundary between Senegal and Portuguese Guinea, 26 April 1960, Limits in the Seas No. 68 (1976). 138 E. g., the Convention between France and Spain on the Delimitation of the Territorial Sea and the Contiguous Zone in the Bay of Biscay, 29 January 1974, available at: http://www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/FRAESP1974VZ.PDF; and the Agreement between Portugal and Spain on the Delimitation of the Territorial Sea and Contiguous Zone, 12 February 1976, available at: http:// www.un.org/depts/los/LEGISLATIONANDTREATIES/STATEFILES/ESP.htm. 139 E. g., the Indonesia/Singapore Treaty 1973 (note 79); Treaty between the Republic of Indonesia and Malaysia Relating to the delimitation of the Territorial Seas of the Two Countries in the Strait of Malacca, 17 March 1970, available at: http://www.un.org/depts/los/LEGISLATIONANDTREATIES/STATEFILES/IDN.htm; Indonesia and Singapore signed a further maritime delimitation agreement in 2009, Indonesia/Singapore Treaty 2009 (note 79), relating to the Singapore Strait, which could be extended eastward to finalise this delimitation (including Malaysia), helped by the determination of ownership of rocks in the area previously disputed by the Case Concerning Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (note 48), cf. Ardsana (note 79); see also the Agreement between the Government of the French Republic and the Government of the Italian Republic on the Delimitation of the Maritime Boundaries in the Area of the Strait of Bonifacio, 28 November 1986, available at: http://www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/FRAITA1986MB.PDF; and that of France/UK Agreement in the Straits of Dover (note 3). 140 For examples, see supra, note 76; recently (on 12 July 2011) Israel transmitted geographical coordinates of its claimed boundary of territorial sea to the north of its coast to the UN Secretary-General, see Scovazzi (note 28), para. 9. 141 It must be remembered that in practice the law of the sea rules can be derogated from by agreement, allowing the parties to adopt any boundary solution they wish, North Sea Continental Shelf Cases (note 5), 41 et seq. (para. 72). 142 For example, although five of the territorial sea boundary turning points between the coasts of Canada and St Pierre and Miquelon are equidistant from Canada and the French territory in St Pierre and Miquelon, other points are not, using e. g., a mid-channel line, see US Department of State, Territorial Sea Boundary between Canada-St Pierre and Miquelon, Limits in the Seas No. 57 (1974); in river estuaries the ‘thalweg’ line, i. e. the line of the deepest channel, has sometimes been used, as in the case of the Nicaragua/Honduras eastern sector of land boundary which follows the deepest channel of the River Coco; the ICJ, in the Nicaragua/Honduras Case (note 6), 742 et seq. (paras. 277 et seq.), determined that it was impossible to identify basepoints and construct a provisional equidistance line for single maritime delimitation purposes, and that this in itself amounted to ‘special circumstances’ where the equidistance rule could not apply, added to the fact here that the baselines were unstable at the mouth of the River Coco. As an alternative method of delimitation was necessary, here the ICJ opted for ‘the bisector method’ as an ‘approximation of the equidistance method’, using the macrogeography of the coastline (represented by a line drawn between two points on the relevant coasts); i. e., treating the bisector

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a thin extended corridor of waters from the land boundary,143 or a line perpendicular to the shore, often following a geographical coordinate; as, for example, in the 1997 Bulgarian/ Turkish delimitation treaty which used a geographical parallel extending from the land boundary terminal (so not complying with equidistance) for the territorial sea boundary because of historical circumstances, despite the fact that the coastline here has no islands or protrusions on either coastline, so that an equidistant line could here have produced an equitable result.144 In the case of small interposing insular features, giving them reduced effect on a median line may be an equitable solution.145 40 Some past delimitation treaties have expressly used a different principle for the territorial sea boundary from that of the EEZ/continental shelf because of special circumstances applying to one area and not the other.146 Thus, for example, some Black Sea States have used equidistance as a solution to their EEZ/continental shelf boundaries irrespective of its non-use in the case of their agreed territorial sea delimitations. 147 An additional consideration related to this approach is that insofar as more extensive maritime zone boundaries should link up with the terminal line of any existing territorial sea boundary, it may cause inequity to one State to have the starting point of any EEZ/continental shelf boundary consequentially extended from such a point, a matter referred to in the pleadings in the Bay of Bengal Case.148 This aspect may be less problematical, though, where States have opted for a comprehensive and contemporaneous ‘single boundary’ solution which seems to be a growing trend in current State practice.149 method, like equidistance, as a geometric approach, see Jiuyong (note 96), 280; thus here, because of geographical peculiarities, namely, the existence of Cape Gracias a Dios – a convex projection abutting an otherwise concave coastline and sedimental accretion on the River Coco – a more equal division ruled out an equidistance line because of its disproportional effect, Nicaragua/Honduras Case (note 6), 742 (para. 277); see further Tanaka (note 96), 910 et seq. 143 Cf. Avbelj/Cernic (note 73), 6 et seq. Added to this, a median line would box in Slovenian territorial waters between the Italian and Croatian territorial seas thus negotiations aimed at a solution based on the second paragraph of Art. 15, i. e., the existence of ‘special circumstances’; in consideration of the latter geographical circumstances, for example, the Convention on Maritime Delimitation between the Government of His Most Serene Highness the Prince of Monaco and the Government of the French Republic, 16 February 1984, reprinted in: UN DOALOS, LOSB No. 9 (1987), 58 et seq.; a full twelve NM territorial sea corridor to prevent any cutting off of Monegasque waters from the high seas, noted in Arnaut (note 7), 444. 144 Cited in the Memorial of Romania of 19 August 2005 in the Black Sea Case (note 74), 66 (para. 6.19); similarly, Gambia and Senegal agreed in 1975 to use parallels of latitude instead of equidistance to avoid a cutting off of Gambian waters, see Arnaut (note 7), 445 et seq.; this method is also evident in the recent Peru/Equador agreed maritime boundary registered with the UN in 2011, which has been drawn along the geographical parallel running from the land boundary in accordance with the Santiago Declaration of 1952 and their previous ‘agreement’ of 1954, see Hernando Otero, Law of the Sea Reports, vol. II (2011), 1, 3; cf. also the 1975 Ecuador/ Colombia delimitation, the 1958 Poland/USSR and 1972 Brazil/Uruguay agreements, all using perpendicular lines from the respective coasts, Churchill/Lowe (note 10), 182. 145 As was done by the PCA in the Eritrea/Yemen Arbitration Second Stage (note 34), 41 (paras. 131 and 132). 146 See above the Monaco/France Territorial Sea Delimitation Agreement (note 143), where this difference is evident and their continental shelf/EEZ boundary is based on a simplified equidistance as an equitable solution; as the ILC commented at UNCLOS I, other options, apart from a median line, include an extension of the land frontier out to sea, a line at right angles to the coast, a geographical parallel, or a line at right angles to the general direction of the coast, though the ‘best solution’ was a median line, which will take coastal irregularities into account, ILC Yearbook, vol. II, 272. 147 A point stressed in the Memorial of Romania (note 144), 69 et seq. (para. 6.24); similarly, in contrast to the agreed continental shelf boundary between Turkey and the USSR, based on simplified equidistance, their agreed territorial sea boundary was based on a non-equidistance line set on the prolongation of the terminal of the land boundary, see Jonathan I. Charney et. al., International Maritime Boundaries, vol. II (1996), 1683; the small territorial loss to Turkey so caused in the territorial sea delimitation was compensated for in the first segment of their continuing continental shelf/EEZ agreed boundary, cf. Memorial of Romania (note 142), 68 (para. 6.20) (as illustrated there in Fig. 10). 148 See the Reply of Bangladesh (note 37), 37 (para. 2.69). 149 See Papanicolopulu (note 3), 390 et seq.; two delimitation treaties in the Mediterranean Sea area reflect allpurpose boundaries, provisionally or otherwise, Monaco/France Territorial Sea Delimitation Agreement (note 141), and the Agreement on Provisional Arrangements for the Delimitation of the Maritime Boundaries between the Republic of Tunisia and the People’s Democratic Republic of Algeria, 11 February 2002, reprinted in: UN

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Charts and lists of geographical coordinates

It has been commented in the past that the matter of delimitation of the territorial sea has 41 only featured in a few modern cases;150 and some of these involved a ‘single line’ delimitation.151 However, the most recent case to come before the ITLOS, the Bay of Bengal Case, has now added further clarity to the delimitation principles under Art. 15, and shows clearly that despite the supposed similarity between ‘special circumstances’ and ‘equitable principles’, in practice the delimitation principles may lead to different solutions depending on whether the area to be delimited is territorial sea, on the one hand, or the more extensive zones of EEZ/ continental shelf, on the other, as under Arts. 74 and 83.152 This case has also clarified the meaning of ‘agreement’ at the start of Art. 15; and evidences the fact that despite the apparent (or supposed) prioritisation of a median line in territorial sea delimitation under that article, a tribunal must always take into account, if only sua sponte, any special circumstances or historic title in coming to a final determination. 153

Article 16 Charts and lists of geographical coordinates 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, 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 United Nations. Bibliography: Peter B. Beazley, Technical Aspects of Maritime Boundary Delimitations, IBRU Maritime Briefing 1(2) (1994); Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); Bill Hurst/David Robertson, GIS, Charts and UNCLOS – Can They Live Together?, Maritime Studies 136 (2004), 1–6; Myron H. Nordquist/ Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); John R. V. Prescott, Straight Baselines: Theory and Practice, in: Eddie D. Brown/ Robin R. Churchill (eds.), The United Nations Convention on the Law of the Sea: Impact and Implementation (1987), 288–313; Michael W. Reed, An Attempt to Unravel Charting and Publicity Requirements Imposed by UNCLOS Article 16, in: Clive R. Symmons (ed.), Selected Contemporary Issues in the Law of the Sea (2011), 3– 14; J. Ashley Roach/Robert W. Smith, United States Responses to Excessive Maritime Claims (2nd edn. 1996); Tullio Scovazzi, Baselines, MPEPIL, available at: http://www.mpepil.com; Tullio Scovazzi/Giampiero Francalanci/ Daniela Romano/Sergio Mongardini, La linea di base del mare territoriale (1986); Sandra H. Shaw/Daniel J. Dzurek, Charts in the Law of the Sea, in: Dorinda G. Dallmayer/Louis DeVorsey (eds.), Deciding and Drawing Maritime Boundaries (1989); Clive R. Symmons, Ireland and the Law of the Sea (2nd edn. 2000); Clive R. Symmons/Michael W. Reed, Baseline Publicity and Charting Requirements: An Overlooked Issue in the Law of the Sea, 41 ODIL (2010), 77–111; Mark Valencia, Validity of Malaysia’s Baselines and Territorial Sea Claim in the Northern Malacca Strait, Marine Policy 27 (2002), 367–373

DOALOS, LOSB No. 52 (2003), 41 et seq.; delimitation treaties in the same region dealing with the territorial sea include Turkey/USSR Treaty of 1973 (note 134); France/Italy Agreement of 1986 (note 137); Treaty on the delimitation of the frontier for the part not indicated as such in the Peace Treaty of 10 February 1947, 10 November 1975, UNTS 1466, 72; Turkey/Bulgaria Agreement of 1997 (note 135); and Treaty on the State Border between the Republic of Croatia and Bosnia and Herzegovina, available at: http://www.un.org/depts/los/ LEGISLATIONANDTREATIES/PDFFILES/TREATIES/HRVBIH1999SB.PDF. 150 Such as the Grisbådarna Case (note 92); the Beagle Channel Arbitration (note 94) and others mentioned at supra, notes 34, 35, 37; Nordquist/Nandan/Rosenne (note 10), 142; and, as seen in the Qatar/Bahrain Case (note 11), 111 (para. 230) and 114 et seq. (para. 247), where in drawing a ‘single maritime boundary’, as the southern area to be delimited was nowhere more than 24 NM wide, this involved there solely a territorial sea delimitation; see further Tanaka (note 31), 55. 151 See supra, MN 11. 152 See supra, note 146. 153 See supra, note 116.

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Documents: IHB, Manual on Technical Aspects of the United Nations Convention on the Law of the Sea 1982 (4th edn. 2006); IHO, Hydrographic Dictionary, vol. I (5th edn. 1994); UN DOALOS, Baselines: An Examination of the Relevant Provisions of the Law of the Sea (1989); UN DOALOS, Presentation on the Deposit and Charts and Lists of Coordinates of Points: Briefing, 13th Meeting of States Parties to the UN Convention on the Law of the Sea (2003) Cases: High Court of Singapore, Suit No. 76 of 2002/w between Image and Sun Cruises Ltd, Sun Vista and Sembawang Ship Management Pte Ltd; ICJ, Fisheries Case (United Kingdom v. Norway), Judgment of 18 December 1951, ICJ Reports (1951), 116; ICJ, Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment of 3 February 2009, ICJ Reports (2009), 61; ITLOS, Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh v. Myanmar), Judgment of 14 March 2012, ITLOS Reports (2012) Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Types of Baselines under Art. 16 (1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘or the limits derived therefrom’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘shall be shown on charts of a scale or scales adequate for ascertaining their position’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. ‘a list of geographical coordinates of points’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. ‘The coastal State shall give due publicity’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. Consequences of Non-Compliance with Art. 16. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. State Practice and International Jurisprudence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 6 7 7 10 14 15 16 20 23

I. Purpose and Function The purposes of Art. 16 can be said to be two-fold. Firstly, to give adequate publicity, by means of charts of adequate scale or by issue of coordinates pursuant to Art. 16 (2), to the main examples of straight (or artificial) baselines mentioned in connection with deeply indented coasts or fringing coastal islands (Art. 7), rivers (Art. 9) or bays (Art. 10); or, in this context, to give the same publicity to the limits of the territorial sea from such baselines. 1 It may be noted that here is no UNCLOS obligation to publicise the latter limits generally in the same manner,2 though the limits of other more extensive zones, such as exclusive economic zone (EEZ), do have standardised publicity requirements attached in their respective articles. 3 Secondly, Art. 16 (1) adds a similar publicity and charting obligation in respect of certain issues relating to the territorial sea – namely, concerning the lines of delimitation of roadsteads (Art. 12) and delimitation lines of territorial sea jurisdiction between opposite or adjacent States (Art. 15). 2 Previously there existed in Art. 4 (6) of the Convention on the Territorial Sea and the Contiguous Zone of 1958 (CTSCZ) only one ‘baseline publicity’ duty similar to that now in Art. 16; and this concerned a straight baseline system stricto sensu. 4 Even this duty was more 1

1 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 145; however, the reference there seems to overstate the publicity effect, as will be seen below, in the case of straight baselines as well as outer limits of the territorial sea, see infra, note 28; furthermore, the reference to the ‘objective’ of such publicity mentions only protection of the territorial sea and ensuring ‘international navigation’ does not ‘unwittingly’ enter a territorial sea. However, an equally likely objective may be seen to be ensuring mariners do not enter internal waters unwittingly, cf. Michael W. Reed, An Attempt to Unravel Charting and Publicity Requirements Imposed by UNCLOS Article 16, in: Clive R. Symmons (ed.), Selected Contemporary Issues in the Law of the Sea (2011), 1, 4, 5–8. 2 See Clive R. Symmons/Michael W. Reed, Baseline Publicity and Charting Requirements: An Overlooked Issue in the Law of the Sea, ODIL 41 (2010), 77, 79; the reference to ‘low-water’ mark in Art. 5 does, however, in referring to marking of such on ‘large-scale chart’, amount to a kind of publicity obligation in general terms, see Nordquist/Nandan/Rosenne (note 1), 148. 3 See Art. 75 (1) and (2) on the EEZ, and Art. 76 (9) and Art. 84 on the outer limits of the continental shelf. 4 Symmons/Reed (note 2), 78.

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procedurally limited than that under the UNCLOS,5 and there were no similar publicity duties relating to baselines of rivers and bays.6 In fact, most commentators, and even the UN itself, seem to have ignored the full wording 3 of Art. 16 (1); and assumed that it puts a duty on States to publicise in the relevant manner and in all instances, all baselines claimed under Arts. 7, 9 and 10. In so assuming they have omitted to consider the legal significance of the added phrase ‘or the limits derived therefrom’.7 In fact, on a literal interpretation, it is arguable that in many instances, by resorting to the option of merely publishing outer territorial sea limits from ‘straight’ baselines, 8 a coastal State may be allowed to conceal any such ‘artificial’ baselines. This situation might, in some instances at least, lead to a ‘hidden baselines’ problem and a consequential failure to alert a mariner of where internal waters commence (and so loss of innocent passage ceases). To reinforce these publicity obligations, an additional procedural rule is added (not to be 4 found in the CTSCZ-regime); namely to deposit the relevant charts or lists of co-ordinates in all the above instances with the UN Secretary-General under Art. 16 (2). 9 This latter process has been described by the United Nations Division for Ocean Affairs and the Law of the Sea (UN DOALOS) as having the purpose of ensuring ‘that the international community is adequately informed of the boundaries of the territorial sea and other maritime zones of a coast’. 10 As the word ‘permanently’ does not appear in the Art. 16-wording (as, e. g., in Art. 76 (9) 5 relative to the continental shelf limits), it is implied that a State may update its baseline and re-deposit up-dated Art. 16 information from time to time as new chart data becomes available, though in the meantime the deposited information should take precedence. 11

II. Historical Background As seen, the only equivalent duty to publicise baselines in the CTSCZ was in respect of 6 Art. 4 (6), where the wording stated that a State claiming a straight baseline system stricto sensu was to ‘clearly indicate straight baselines on charts, to which due publicity must be given’. This was a more restrictive duty (uncontroversially added by the International Law Commission Committee of Experts in 1952)12 than that under Art. 16 (1) of the UNCLOS; in that these baselines themselves had in all instances to be published. 13 Another major change at UNCLOS III was that the new UNCLOS publicity duty was extended from the straight baseline situation stricto sensu (in what is now Art. 7) to include also the closing lines of rivers and bays under Arts. 9 and 10 respectively; and the option was also added for States to indicate all such lines by way of co-ordinates (with specified datum) as well as on charts. 14 This publicity duty was extended also to cover roadsteads (to which some publicity duty had attached under Art. 9 CTSCZ)15, as also to delimitation lines of territorial sea limits between opposite or adjacent States (Art. 12 (2) CTSCZ).16 These strands were all eventually put together in the context of a separate dedicated publicity article in the Revised Single 5

Ibid., 79. Ibid., 81–82. 7 Ibid., 77, 78 and 92–93. 8 By this phrase is meant any artificial lines of a straight variety, not specifically those drawn under Art. 7. 9 Nordquist/Nandan/Rosenne (note 1), 145. 10 UN DOALOS, Presentation on the Deposit and Charts and Lists of Coordinates of Points: Briefing, 13th Meeting of States Parties to the UN Convention on the Law of the Sea (2003). 11 See Bill Hurst/David Robertson, GIS, Charts and UNCLOS – Can They Live Together?, Maritime Studies 136 (2004), 1, 3–5. 12 Symmons/Reed (note 2), 81. 13 Ibid. 14 Nordquist/Nandan/Rosenne (note 1), 146; for a full history, see ibid., 144–147. 15 Ibid., 146; Art. 9 CTSCZ states: ‘The coastal State must clearly demarcate such roadsteads and indicate them on charts together with their boundaries, to which due publicity must be given’. 16 Nordquist/Nandan/Rosenne (note 1), 145–147. 6

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Negotiating Text (RSNT), later designated as Art. 16.17 Although in the earlier travaux pre´paratoires at UNCLOS III the duty to publicise all such baselines arose, 18 the alternative duty to similarly publicise the ‘limits derived from’ such baselines only came in with the RSNT in 1976, a change which has no explanation in the published UNCLOS records. 19 So there is no supplementary material to help flesh out any interpretative ambiguity in this area.

III. Elements 1. Types of Baselines under Art. 16 (1) As seen above, the explicit reference here to Arts. 7, 9 and 10 indicates (in a literal interpretation) that these are the only baseline provisions where the publicity obligations under this provision arise; and the further references to Arts. 12 and 15 indicate that in two other situations under this provision, certain matters relating also to territorial sea delimitation must be similarly publicised; namely roadsteads under Art. 12 and territorial sea delimitation boundaries between neighbouring States under Art. 15. This means that in terms of baselines generally, the normal one (i.e., the low-tide mark under Art. 5) is subject to its own less onerous charting publicity rules,20 though, this may also not include (explicitly, at any rate) other quasi-exceptions to the coastal low-tide mark stricto sensu, such as low-tide elevations (� Art. 13) or outer harbor works (� Art. 11). 21 8 It has been said that the option to publish/deposit a list of coordinates, rather than just charts, is particularly aimed at ‘accurately locating the ends of straight lines’, 22 though this method could also locate outer line limits of the territorial sea as indeed has been done by Nauru in defining its maritime limits (mixing use of coordinates of basepoints and arc intersection points on its outer limit line).23 Similar charting obligations to that laid down here also apply elsewhere in the UNCLOS, under their respective individual articles in the case of EEZ limits (� Art. 75 (1) and (2)) and outer continental shelf limits (� Arts 84). 24 9 The only real interpretative difficulty in the initial wording of Art. 16 is whether it implicitly brings into the publicity duty any straight baselines across the mouths of ports. As seen, Art. 11 does not expressly refer to the question of whether ports qualify for a straight closing line across their mouths;25 so this explains why, in turn, there is no express reference to publicity obligations in this case in Art. 16. Nonetheless, most commentators 26 accept that the failure to deal with this issue in the UNCLOS was an unfortunate omission; and the inclusion of ports for straight baseline enclosure is in any case implied as Art. 50 allows an archipelagic State to close off a port ‘within its archipelagic waters’ and to ‘draw closing lines for the delimitation of its internal waters, in accordance with Arts. 9, 10 and 11’. 27 7

17

Ibid., 147. Symmons/Reed (note 2), 83–84. 19 Ibid. 20 See, e. g. Hurst/Robertson (note 11), 6, noting that Art. 5 is not referred to in Art. 16 ‘presumably because it is assumed that the coastline as depicted on a chart is a fair representation (if not the actual source) of the baseline’; Tullio Scovazzi, Baselines, MPEPIL, para. 5, available at: http://www.mpepil.com, queries why there is this omission in UNCLOS. 21 However, some commentaries treat Art. 6 on reefs, as well as Art. 11 on harbour works and Art. 13 on low-tide elevations, as being comprised in the ‘general definition of the normal baseline’, i. e., the low-water line along a continental or insular shore: IHB, Manual on Technical Aspects of the United Nations Convention on the Law of the Sea 1982 (4th edn. 2006), para. 4.1; in any event, some States have notified the UN of such baselines even though there is no obligation to do so, as for example, Romania regarding its Sulina dyke basepoint, cf. infra, note 73. 22 Hurst/Robertson (note 11), 6. 23 Ibid., 7. 24 See Symmons/Reed (note 2), 85. 25 See Symmons on Art. 11 MN 2. 26 E. g., Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 47–48; and UN DOALOS, Baselines: An Examination of the Relevant Provisions of the Law of the Sea (1989), 33 (para. 73). 27 Emphasis added; see Symmons/Reed (note 2), 93–94; and Reed (note 1), 10–11. 18

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2. ‘or the limits derived therefrom’ It is this phrase (‘or the limits derived therefrom’), added, as seen above, at a later stage of the UNCLOS negotiations to the original baseline publicity wording, which causes problems and interpretative questions: namely whether the apparent literal meaning of this added phrase gives a complete choice to a State claiming a system of straight baselines as to whether it publicises (in the relevant manner) the baselines themselves, or instead merely publicises the ‘limits derived’ from them (which would appear to refer here to the external limits of the territorial sea extending from same in the light of the preceding reference to this zone). 28 The conjunctive word ‘or’ here seems to indicate, at first glance, a complete freedom of choice of either method on the most literal interpretation, though most commentators seem to have ignored this additional (territorial sea limits) possibility; and concluded that the relevant baselines must in all cases be appropriately publicized.29 Thus even the UN website on such UNCLOS obligations (headed ‘Deposit and Due Publicity’) says categorically that States ‘are required to deposit [with the UN Secretary-General] charts [or co-ordinates] showing straight baselines as well as the outer limits of the territorial sea’.30 This statement is, unfortunately, doubly incorrect in that first it implies that in all instances straight baselines must be publicized in the relevant ways; and secondly because, as seen, there is no general obligation under the UNCLOS to publicise the outer limits of the territorial sea. The problem with the apparent second alternative – i. e., merely publicising in the relevant manner outer limits of territorial sea lying off straight baselines – is that although in most instances straight baselines may be re-constructed by a charting process back from known territorial sea limits (an ‘arcs of circle exercise in reverse’), 31 this will not be possible where any straight baselines are ‘masked’ by other basepoints in the area, such as low-tide marks or baselines influenced by off-shore islands.32 In such a case a State might deliberately disguise its straight baselines by opting for the second alternative – leading to the ‘hidden baseline’ problem – a type of policy which has been decried by some commentators.33 It has been argued by SYMMONS and REED that the apparent freedom of choice here is unfortunate in terms of the policy object mentioned above: this is that mariners and other concerned authorities should in all instances know where straight baselines exist because of the legal regime change there.34 To avoid the latter situation, a narrower, but still literal interpretation, may be made here. This is on the basis that the wording ‘derived therefrom’ implies a contrario that if the actual territorial sea limits in any area are not in fact influenced by straight baselines (i.e., are not ‘derived’ from them for the geographical reasons mentioned above), there is at least then a duty under Art. 16 to publicise the straight baselines themselves. As here no reverse ‘arcs of circles’ charting is possible to reveal the baselines. This interpretation is aided by the contextual references in the preceding treaty law (i.e., Art. 4 (6) CTSCZ where, as seen, there was an absolute duty to publicise such straight 28 Symmons/Reed (note 2), 89; but cf. Reed (note 1), 10, who argues that ‘limits’ derived could be referable to the extent of internal waters on the landward side of the baseline. Symmons disagrees with this ingenious explanation, largely because it makes redundant the initially-mentioned situation of straight ‘baselines’, where the stock composite phrase ‘baselines for measuring the breadth of the territorial sea’ in and of itself already defines the exterior limits of internal waters, as reinforced by the wording of Art. 5 defining compositely ‘internal waters’, cf. Symmons/Reed (note 2), 89: thus the phrase ‘derived therefrom’ must, it is believed, refer to limits which are external to, and seaward of, the internal waters themselves. 29 See Symmons/Reed (note 2), 78 and 92–93; commentators who are in this category are listed, ibid., 107 (footnotes 93–96); and in Reed (note 1), 8–9; even the UN DOALOS Baselines Study (note 26), 40, is equivocal on this matter, though the study does, in its commentary on Art. 16 itself, later indicate apparent freedom of choice between the two possibilities. 30 See Reed (note 1), 8 (emphasis added). 31 Ibid., 5; Symmons/Reed (note 2), 89. 32 Symmons/Reed (note 2), 86. 33 See ibid., 92. 34 Ibid., 80; Reed (note 1), 4–8.

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baselines); and even other parts of the text of the UNCLOS itself support this. For example, Art. 47 (8) states that in the analogous case of publicity concerning archipelagic baselines, these ‘shall be shown on’ charts or by way of geographic coordinates; so that in this instance there is no ‘derived limits’ alternative given.35 Another situation where the actual baselines will have to be published arises again in the archipelagic context by implication from Art. 50 (headed ‘Delimitation of Internal Waters’), where in a ‘regime-within-a-regime’ situation such internal waters baselines (contained within archipelagic waters) cannot, ipso jure, have any ‘derived’ territorial sea limits.36

3. ‘shall be shown on charts of a scale or scales adequate for ascertaining their position’ 14

It is at least clear from this wording (unlike that preceding, as seen) that a coastal State claiming straight baselines or limits as referred to in Art. 16 has a complete discretion as to whether to use a charting display simpliciter of such lines and limits, or to list co-ordinates alone (or indeed use both), thanks to the clearly disjunctive wording ‘[a]lternatively’ and ‘substituted’ in Art. 16 (1).37 The charting obligation here is more specific and detailed than the more general and simpler obligation laid down under Art. 4 (6) CTSCZ relating to a straight baseline system stricto sensu. In Art. 16 (1) such ‘charts’ 38 – which may not necessarily be published by the baseline claimant State39 – must be of an adequate scale for showing such lines or limits (usually comprising scales between 1:100,000 and 1:250,000), 40 though they do not necessarily have to be ‘large-scale’ as under Art. 5. As the phrase –‘of an adequate scale or scales adequate for ascertaining position’ – is a vague one, the scale used may depend on underlying circumstances41 (including varying in scale along long coastlines).42 It has been commented that charts provide an ‘immediate visual presentation of information’,43 and, as such, may supplement the alternative method (see below) of a listing of co-ordinates as basepoints, as charts cannot provide the same precision as co-ordinates, even if on the ‘largest practicable scale’.44

4. ‘a list of geographical coordinates of points’ 15

As seen, this mode of baseline and limits publicity was not mentioned in the CTSCZregime context, and was only added in Art. 16. It is similarly contained in the UNCLOS relative to the other limits articles where publicity is required, e. g., Arts. 75 (1) and (2), 76 (9) 35 Cf. some commentators who have thought the obligations in Art. 16 (1) and Art. 47 (8) are the same, Symmons/Reed (note 2), 91 and 107 (footnote 86); or ‘similar’, Nordquist/Nandan/Rosenne (note 1), 147–148; see also UN DOALOS Baselines Study (note 26), 39–40. 36 See Symmons/Reed (note 2), 107 (footnote 91); for further details, see Symmons on Art. 50 MN 5–8. 37 Symmons/Reed (note 2), 81. 38 These must not be mere land maps, but ‘nautical’ charts, see John R. V. Prescott, Straight Baselines: Theory and Practice, in: Eddie D. Brown/Robin Churchill (eds.), The UN Convention on the Law of the Sea: Impact and Implementation (1987), 288, 312; according to the IHO, Hydrographic Dictionary, vol. I (5th edn. 1994), 37, a ‘chart’ is defined ‘a special purpose map generally designed for navigation or other particular purposes’. 39 The UN DOALOS Baselines Study (note 26), 40–41, says that a State may decide to use a chart ‘published by the primary charting authority’ rather than prepare special charts of its own; see Sandra H. Shaw/Daniel J. Dzurek, Charts in the Law of the Sea, in: Dorinda G. Dallmayer/Louis DeVorsey, Deciding and Drawing Maritime Boundaries (1989), 15–16, who point out that some countries have no charting capability and thus will be forced to rely on charts made by others. 40 IHB Manual on Technical Aspects (note 21), para. 4.6. 41 Ibid., para. 3.3.1, it is stated that in connection with this requirement the ‘accuracy of depiction of various lines and features on a chart is a function of the scale’; and that a ‘criterion of the choice of scale is that it must provide the resolution necessary for the user to determine baselines […] to the same level of accuracy as originally achieved by the coastal State’ (emphasis added). 42 UN DOALOS Baselines Study (note 26), 41. 43 Ibid., 40. 44 Ibid.

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and 84. Such a method provides a better ‘degree of precision’ than charts to fix definitive basepoint positions (even if only given to the nearest second of arc); and many States use both charts and coordinates in conjunction.45 Any coordinates so given must be accompanied by ‘appropriate information regarding original geodetic datum’.46 This, as advised by the UN,47 should be converted into WGS (World Geodetic System) 84, as used by UN DOALOS to produce maps and store internal data.

5. ‘The coastal State shall give due publicity’ The phrase ‘due publicity’ was borrowed from the same wording in Art. 4 (6) CTSCZ, and 16 it appears again in other similar publicity-orientated provisions of the UNCLOS, including Arts. 75 (1), 76 (9), 47 (9), with the same interpretative implications arising, though, Art. 76 (9) puts an additional publicity obligation there on the Secretary-General of the UN and Art. 84 mentions the Seabed Authority as an additional depositary in relevant circumstances. This above wording in Art. 16 (2) has been somewhat cumbrously defined in the UN- 17 Baseline Study as meaning ‘notification of a given action for general information through appropriate authorities within a reasonable amount of time in a suitable manner’. 48 Whether this implies that a coastal State, beyond mere publication of information through legislative or decree processes (giving internal information on this), must do more, and, for example, individually notify other States of such information in terms of adverting them to such legislation, decrees etc., is unclear.49 It seems arguable that the very act of deposit of such information with the UN might qualify in itself as coming from an ‘appropriate authority’ and in a suitable manner to satisfy the requirement, bearing in mind that UN DOALOS, as will be seen, speedily propagates such information to other States through maritime zone notifications (MZNs) etc.50 This obligation to deposit charts or lists of co-ordinates relative to matters in Art. 16 (1) with the UN Secretary-General reflects the identical procedural duty imposed in Art. 75 (2) (EEZ limits) and Art. 47 (9) (archipelagic basepoints); 51 and has been aptly described as an ‘additional’ publicity duty under Art. 16.52 The UN has emphasized that the ‘mere existence or adoption of legislation’ (even if it 18 contains charts or lists of co-ordinates) cannot be considered as ‘an act of deposit’ with the UN Secretary-General under the Convention.53 Acting upon the request of the General Assembly in its Resolution 49/28 of 6 December 1994, UN DOALOS, as the responsible unit of the UN Secretariat, ‘established facilities for the custody of charts and [list of co-ordinates] deposited and for the dissemination of such information in order to assist States in complying with their publicity obligations’.54 UN DOALOS has since established a GIS (Geographical Information System) and data base to store and process all such geographic information and to produce charts etc. in digital form.55 45

Ibid. See UN DOALOS, Law of the Sea Information Circular No. 27 (2008), 5 (para. 26); for discussion of such datums, see, e. g., Peter B. Beazley, Technical Aspects of Maritime Boundary Delimitations, IBRU Maritime Briefing 1(2) (1994), 1, 5–7. 47 UN DOALOS, Law of the Sea Information Circular No. 16 (2002), 22 (LOSIC). 48 UN DOALOS Baselines Study (note 26), 54 (para. 27). 49 See Symmons/Reed (note 2), 85. 50 Ibid.; see however, on the UN DOALOS website the statement that apart from deposit of information under Art. 16, coastal State are ‘also required to give due publicity to all these [deposited] charts and lists of geographical co-ordinates’ (emphasis added). This implies that mere deposit of charts/coordinates with the UN may not in itself be enough to satisfy Art. 16 (2), available at: https://www.un.org/depts/los/doalos_activities/ about_doalos.htm. 51 See Symmons/Reed (note 2), 91. 52 Nordquist/Nandan/Rosenne (note 1), 145. 53 LOSIC (note 47), 22. 54 Ibid.; UN DOALOS itself views the receipt of charts and co-ordinates as a depositary as (now) a ‘core function’. 55 LOSIC (note 47), 22. 46

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In practical terms such deposit is effected by a Note Verbale to the UN Secretary–General or a letter by the State’s permanent representative to the UN or ‘other person considered as representing the State party’.56 Parties to the UNCLOS are then informed by UN DOALOS of such deposits by an MZN, subsequently circulated to all States by means of a Law of the Sea Information Circular (LOSIC) containing the relevant legislation and maps. These are then published in the Law of the Sea Bulletins.57 It has been suggested that the deposit of maritime zonal information under Art. 16, such as lists of co-ordinates, could be done in GIS format. 58

6. Consequences of Non-Compliance with Art. 16 The legal effect for a State disregarding all or, indeed, some of the publicity obligations arising under Art. 16 (1) and (2) relative to its baseline claims etc. are unclear (even if the claims otherwise comply substantively with the UNCLOS provisions); as no sanctions for breach of these duties are spelt out in the UNCLOS. Such disregard could come about through lack of charting depiction/supply of coordinates, or, more generally, under Art. 16 (2), in failing to give such matters ‘due publicity’59 and/or (in addition) failing to deposit such information with the UN (under Art. 16 (2)). However, it is arguable that there is an implied sanction similar to that which can be applied where straight baselines are viewed as impermissible and contrary to the UNCLOS; and that is that other States may ignore such unpublicised baselines, at least until the publicity obligations under Art. 16 are rectified. 60 21 The matter has only been incidentally raised in international case-law. In the Maritime Delimitation in the Black Sea Case, for example, the ICJ did not have to deal with the matter directly. The Court referred there to Romania’s notification to the UN of its use of the seaward end of the Sulina Dyke as a territorial sea basepoint, and the fact that use of this baseline had not been ‘contested by Ukraine’; and this was accompanied by the Court’s caveat that such a claim ‘always has an international aspect’, citing in this regard the dictum from the ICJ in the Fisheries Case (1951).61 There was, however, a converse argument raised in the case by Romania: namely, that a basepoint claimed by the Ukraine (a small islet called Serpent’s Island) had not been notified to the UN; and therefore was inadmissible as a delimitation basepoint. However, on this issue the ICJ endorsed the view that ‘normal baselines, defined as the low-water line along the coast, do not have to be notified to the [UN], as straight baselines have to be’.62 It is possible from this meager evidence to view the Court’s dicta as implying, more generally, that unpublished baselines actually within the remit of Art. 16 may not affect another State which has not expressly or impliedly accepted them through a process of estoppel and/or recognition.63 22 The matter was more directly raised, but, in the end, inconsequentially, in the recent Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal, where Myanmar had argued that neither party in that case had publicized or submitted charts or lists of coordinates of the ‘Agreed Minutes’, which were there in issue on delimitation of territorial sea boundaries, under Art. 16 (2); and that this factor was an added reason for making the ‘Agreed Minutes’ non-binding. 64 As the ICJ found 20

56

Ibid. Ibid., 22–23. 58 Hirst/Robertson (note 11), 7. 59 See Symmons/Reed (note 2), 97. 60 Ibid., 95–98. 61 ICJ, Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment of 3 February 2009, ICJ Reports (2009), 61, 108 (para. 137); ICJ, Fisheries Case (United Kingdom v. Norway), Judgment of 18 December 1951, ICJ Reports (1951), 116, 132. 62 Ibid., 104 (para. 126). 63 Symmons/Reed (note 2), 97–98. 64 ITLOS, Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh v. Myanmar), Judgment of 14 March 2012, 35–36 (para. 86), available at http:// www.itlos.org/fileadmin/itlos/documents/cases/case_no_16/1-C16_Judgment_14_02_2012.pdf. 57

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Art. 16

these ‘minutes’ not to bring about any binding obligations, it stated that it found it unnecessary ‘to address the relevance, if any […] of the failure to deposit’ such information with the UN as provided in Art. 16 (2).65

7. State Practice and International Jurisprudence Despite the admonitions of the UN to comply with Art. 16,66 it is evident that many States 23 have not complied with the stipulations thereof, in particular by not depositing charts or coordinates with the UN Secretary-General. 67 Several have taken advantage of the alternative ‘derived limits’ option;68 with others listing both types;69 and some States have expressly ‘signed off’ on the fact of completion of their Art. 16 obligations.70 The recapitulative lists in UN publications, such as LOSIC, show up this deficiency. For example in a 1992 UN listing, only about 21 States had complied with Art. 16 as such.71 Some States have made specific reference to the obligation to publicise baselines etc. in their domestic laws. Thus, for example, in the Solomon Islands’ and Mauritian legislation such duties are spelt out.72 It seems some State may have deposited basepoint information to the UN which is not 24 strictly covered by the list in Art. 16, if only ex abundanti cautela. For example, on the question of whether Art. 16 (1) applies to basepoints on ‘outermost permanent harbor works’, it may be noted that in the Maritime Delimitation in the Black Sea Case, Romania saw fit to notify the UN of its baseline use of an artificial construction, Sulina Dyke, even though this construction does not enclose internal waters of a port as such. 73 It is interesting to note as regards the abovementioned interpretative difficulty relating to 25 the apparent option of merely publicising the territorial sea limits lying off ‘straight’ baselines, that not only have some authors decried the use by some States of hidden straight baselines, but also some States, such as the US, have protested against such a practice. This is evident, for example, in past US protests against such practices in the case of Haiti, 74 North Korea, Sudan and Malta in this regard.75 Curiously, the US did not protest against the Malaysian ‘hidden’ baselines, though Indonesia did.76 The hidden Malaysian baselines have already caused legal problems in the Sun Vista incident off Malaysia (2002). 77 65

Ibid., 38 (para. 99). See e. g., LOSIC (note 47), 22: ‘coastal States [parties to UNCLOS] are required to deposit with the Secretary-General [of the UN] charts [or geographical co-ordinates, [citing GA Res. 56/12] showing straight baselines […]’ as ‘an international act’ and to ‘give due publicity’) (emphasis added). 67 Such States include Ireland, see Clive R. Symmons, Ireland and the Law of the Sea (2nd edn. 2000), 62. 68 E. g., it seems these include Belgium, Maritime Zone Notification (MZN) No. 24 of 1 June 1999; Equatorial Guinea, MZN No. 25 of 2 June 1999; Germany, MZN No. 1 of 8 March 1995. 69 E. g., Finland: MZN No. 8 of 21 July 1996. Japan: MZN No. 14 of 6 June 1997; MZN No. 18 of 23 June 1998; MZN No. 19 of 23 June 1998; MZN No. 21 of 30 November 1998; MZN No. 26 of 3 June 1999; MZN No. 29 of 29 July 1999; and MZN No. 33 of 28 March 2000. Mauritius: MZN No. 63 of 27 June 2008. Nauru: MZN No. 23 of 19 February 1999. Romania: MZN No. 15 of 7 August 1997. Uruguay: MZN No. 30 of 30 July 1999. 70 As, e. g., Japan: MZN No. 33 of 28 March 2000. 71 LOSIC (note 47), 25–30. 72 S. 8 (1) Solomon Islands Delimitation of Marine Waters Act, Act No. 32 (1978); see also S. 16 Belize Maritime Areas Act (1992), which makes a similar provision on publicity, stating that the Minister shall cause all relevant baselines, charts etc ‘to be clearly indicated on charts of a scale or scales adequate for them to be readily determined and shall give due publicity to such charts by notice in the Gazette and shall cause a copy of each such chart to be deposited with the Secretary-General of the [UN]’ (emphasis added). 73 See Symmons/Reed (note 2), 96; Art. 11 was cited in the case by the ICJ for limited purposes only. 74 Symmons/Reed (note 2), 93. 75 See J. Ashley Roach/Robert Smith, United States Responses to Excessive Maritime Claims (2nd edn. 1996), 144–145; also Tullio Scovazzi et al., La linea di base del mare territoriale (1986), 168–169, which mentions the legislation of Haiti and the Maldives in this regard; and further Prescott (note 38), 288, 312–313. 76 Symmons/Reed (note 2), 108 (footnote 101). 77 Mark Valencia, Validity of Malaysia’s Baselines and Territorial Sea Claim in the Northern Malacca Strait, Marine Policy 27 (2002), 367–373; Symmons/Reed (note 2), 101 (footnote 13); this case involved civil litigation in the High Court of Singapore, Suit No. 76 of 2002/w between Image and Sun Cruises Ltd, Sun Vista and Sembawang Ship Management Pte Ltd, where the matter in issue was whether an on-board fire and sinking of a 66

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Part II. Territorial sea and contiguous zone

Section 3 Innocent passage in the territorial sea Subsection A Rules applicable to all ships Article 17 Right of innocent passage Subject to this Convention, ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea. Bibliography: William E. Butler, Innocent Passage and the 1982 Convention: The Influence of Soviet Law and Policy, AJIL 81 (1987), 331–347; Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); Rene´-Jean Dupuy/Daniel Vignes, A Handbook on the New Law of the Sea (1991); 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, ICLQ 8 (1959), 73–121; Hugo Grotius, The Freedom of the Seas (1609, translated 1916); William E. Hall, International Law (7th edn. 1917); Sir Cecil Hurst, The Territoriality of Bays, BYIL 3 (1922–1923), 42–54; Philip C. Jessup, The Law of Territorial Waters and Maritime Jurisdiction (1927); Myres S. McDougall/William T. Burke, The Public Order of the Oceans (1987); Erik J. Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution (1998); Francis Ngantcha, The Right of Innocent Passage and the Evolution of the International Law of the Sea (1990); Daniel P. O’Connell, The Juridical Nature of the Territorial Sea, BYIL 45 (1971), 303–384; Daniel P. O’Connell, The International Law of the Sea, vol. I (1982); John Selden, Mare Clausum (1635, translated 1663); Emmerich de Vattel, The Law of Nations or the Principles of Natural Law Applied to the Conduct and to the Affairs of Nations and Sovereigns (1758, translated 1916) Documents: American Institute of International Law, Project No. 12: Jurisdiction, AJIL 20, No. 4 Suppl. (1926), 323–325; Harvard Law School, Draft on ‘International Responsibility of States for Damage Done in Their Territory to the Person or Property for Foreigners’ (1929), reproduced in: ILC Yearbook (1956), vol. II, 229–230; Harvard Law School, The Law of Territorial Waters: Appendix No. 1: Amended Draft Convention Communicated to Various Governments by the League of Nations Committee of Experts for the Progressive Codification of International Law, With Questionnaire No. 2, January 29, 1926, AJIL 23, No. 2 Suppl. (1929), 366–368; Harvard Law School, The Law of Territorial Waters: Appendix No. 7: Drafts Prepared by the KohusaihoGakkwai (L’Association de Droit International du Japon) in Conjunction with the Japanese Branch of the International Law Association, AJIL 23, No. 2 Suppl. (1929), 376–378; ILA, Report of the Thirty-Third Conference (1924), 101; ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4–12; UN OLA, Laws and Regulations on the Regime of the Territorial Sea (1957) Cases: Attorney-General v. Ngati Apa [2003] 3 NZLR 643 (New Zealand); Cope v. Vallette Dry-Dock Co, 119 US 625 (1887); ECJ, C-286/90, Anklagemyndigheden v. Peter Michael Poulsen and Diva Navigation Corp., 1992 ECR I-6019; ECJ, C-308/06, The Queen on the Application of: International Association of Independent Tanker Owners (Intertanko) and Others v. Secretary of State for Transport, 2008 ECR I-4057; Ellis v. United States, 206 US 246 ~ia de Navegacio´n Nacional (Panama) v. U.S., 29 June 1933, RIAA (1907); General Claims Commission, Compan XI, 382; ICJ, Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Judgment of 27 June 1985, ICJ Reports (1985), 14; ICJ, Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v. Albania), Merits, Judgment of 9 April 1949, ICJ Reports (1949), 4; Pianka v. The Queen [1979] AC 107 (UK); Post Office v. Estuary Radio Ltd. [1968] 2 QB 740 (UK); Steedman v. Scofield [1992] 2 Lloyd’s Rep 163 (UK); Stewart v. Dutra Construction, 543 US 481 (2005); R. v. Keyn [1876] 2 Ex. D. 63 (UK); R. v. Goodwin [2006] 1 Lloyd’s Rep 432 (UK); United States v. Louisiana, 394 US 11 (1969)

vessel occurred in international waters or within Malaysia’s legitimate internal waters or territorial sea – a matter critically dependent on the validity of Malaysia’s unpublished straight baselines, and important there because if the incident did not happen in such Malaysian waters, the law of the flag State would apply.

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Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘Subject of this Convention’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘ships’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘of all States, whether coastal or land-locked’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Violations of Art. 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 7 7 8 10 11

I. Purpose and Function Art. 17, in clear terms, states that ‘[s]ubject to this Convention, ships of all States, whether 1 coastal or land-locked, enjoy the right of innocent passage through the territorial sea.’ The provision introduces the regime of innocent passage. This is the right of vessels to navigate through the territorial sea without stopping or anchoring, unless rendered necessary by force majeure or to provide assistance to persons or vessels in distress. Art. 17 must be read in particular with Arts. 18 and 19, which define the meaning of passage and innocent passage respectively.1 The aim of the regime of innocent passage is to accommodate the littoral States’ exclusive interests in securing and protecting coastal waters with the inclusive interests of the international community in guaranteeing certain rights of communication and passage through the seas.2 This requires a balancing of interests between coastal States and vessels enjoying the right of innocent passage. Section 3 of Part II continues to define the meaning and extent of passage, the rights and duties of coastal States and flag States, and other parameters shaping the operation of the regime of innocent passage in general. Art. 17 applies to the ships of all States, although later provisions of the Convention 2 contain specific rules pertaining to warships and State operated non-commercial vessels (� Arts. 29–32), nuclear powered ships and ships carrying nuclear and other inherently dangerous cargo or noxious subjects (� Art. 23). Specific provisions also deal with the exercise of criminal (� Art. 27) and civil jurisdiction (� Art. 28) over merchant ships and commercially operated State vessels. The right of innocent passage through the territorial sea only applies to ships. The right of overflight above the territorial sea by aircraft remains subject to specific provisions of aviation law.

II. Historical Background It is difficult to identify consistent and uniform practice supporting a right of innocent 3 passage prior to the nineteenth century. Neither is it possible to identify any consistent recognition of the right in the doctrinal writing of this period. In accordance with his theory of freedom of the seas, GROTIUS asserted a general right of passage.3 SELDEN also accepted a right of ‘inoffensive passage’ in coastal waters.4 The following century, VATTEL asserted that the marginal sea may be navigated without the coastal State’s permission. 5 On the other hand, BYNKERSHOEK acknowledged some form of transit, but that this could be forbidden. The precise nature and extent of passage was not certain, reflecting the broader juridical uncertainty as to the nature of territorial seas, as evident in the celebrated case of R. v. Keyn (1876). 6 Thereafter, 1

See further: Barnes on Art. 18 MN 6–11; Barnes on Art. 19 MN 6–23. See ECJ, Case C-308/06, The Queen on the Application of: International Association of Independent Tanker Owners (Intertanko) and Others v. Secretary of State for Transport, 2008 ECR I-4057, para. 58. 3 Hugo Grotius, The Freedom of the Seas (1609, translated 1916), 7–10. 4 John Selden, Mare Clausum (1635, translated 1663), 123. 5 Emmerich de Vattel, The Law of Nations or the Principles of Natural Law Applied to the Conduct and to the Affairs of Nations and Sovereigns (1758, translated 1916), 106–110. 6 R. v. Keyn [1876] 2 Ex. D. 63 (UK). 2

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4–5

Part II. Territorial sea and contiguous zone

the question of the nature and extent of coastal State rights over territorial waters gained greater attention.7 Whilst the right of a coastal State to exercise some prescriptive jurisdiction over activities in the territorial sea was not in question, 8 the claim that persons on board foreign vessels could be liable for offenses committed under the criminal law of England was hotly disputed.9 The scope of innocent passage became inextricably linked with questions about the nature and scope of coastal State authority over coastal waters. 4 Between 1894 and the 1930 Hague Codification Conference, a number of learned societies and groups of experts proposed draft rules on the right of innocent passage. This included the Institute de Droit International,10 the League of Nations Committee of Experts in 1929,11 the International Law Association in 1924,12 the American Institute of International Law in 1925,13 the Japanese Branch of International Law,14 and the Harvard Law School Draft in 1929.15 These drafts asserted, without significant deviation, a general right of peaceful passage through coastal waters. It is unclear whether such a right unequivocally existed in practice, but these efforts were nonetheless indicative of a desire that such a right be recognised and codified under international law. This was reflected in academic opinions, with a number of scholars accepting the right of innocent passage.16 During this period, international agreements were adopted which accorded such a right between contracting parties. In 1921, the Barcelona Convention and Statute on Freedom of Transit required States parties to allow ‘transit in accordance with the customary conditions and reserves across their territorial waters’.17 The same year, the convention between Germany, Poland and the Free City of Danzig concerning freedom of transit between East Prussia and other parts of Germany provided for transit of persons, goods and vessels across territorial waters. 18 Although the Hague Codification Conference failed to produce a text for adoption, the Second Committee was able to report that 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 generally recognized’.19 5 Given the general acceptance of a right of innocent passage, there has been little ~ia de Navegacio´n Nacional (Panama) international jurisprudence on the matter. In Compan v. US (1933), the tribunal stated that there is a ‘clear preponderance of authority to the effect that this sovereignty is qualified by what is known as the right of innocent passage, and that this qualification forbids the sovereign actually to prohibit the innocent passage of alien merchant vessels through its territorial waters’.20 More detailed consideration was given to 7

Daniel P. O’Connell, The Juridical Nature of the Territorial Sea, BYIL 45 (1971), 303, 332 et seq. See Barnes on Art. 2 MN 4–13. 9 O’Connell (note 7), 332 et seq. 10 Institute de Droit International, Re `gles sur la de´finition et le re´gime de la mer territoriale, AnnIDI 13 (1894– 1895), 329–330. 11 Amended Draft Convention Communicated to Various Governments by the League of Nations Committee of Experts for the Progressive Codification of International Law, With Questionnaire No. 2, January 29, 1926. LN Doc. C.196.M.70 1927. V, p. 72. Reproduced in Harvard Law School, The Law of Territorial Waters: Appendix No. 1, AJIL 23, No. 2 Suppl. (1929), 366, 367. 12 ILA, Report of the Thirty-Third Conference (1924), 101. 13 American Institute of International Law, Project No. 12: Jurisdiction, AJIL 20, No. 4 Suppl. (1926), 323, 324. 14 Harvard Law School, The Law of Territorial Waters: Appendix No. 7: Drafts Prepared by the KohusaihoGakkwai (L’Association de Droit International du Japon) in Conjunction with the Japanese Branch of the International Law Association, AJIL 23, No. 2 Suppl. (1929), 376 et seq. 15 Harvard Law School, The Law of Territorial Waters (note 11), 241. 16 William E. Hall, International Law (7th edn. 1917), 166; Sir Cecil Hurst, The Territoriality of Bays, BYIL 3 (1922–1923), 42, 53; Philip C. Jessup, The Law of Territorial Waters and Maritime Jurisdiction (1927), 119, 120. 17 Art. 2 Barcelona Convention and Statute on Freedom of Transit, 20 April 1921, LNTS 7, 11. 18 Art. 1 Agreement Relating to Freedom of Transit between East Prussia and the Rest of Germany, 21 April 1921, LNTS 12, 62. 19 League of Nations, Report of Second Commission, League of Nations Publication V. Legal, LN Doc. C.230.M.117.1930.V. (1930.V.9). ~ia de Navegacio´n Nacional (Panama) v. U.S., 29 June 1933, RIAA vol. 20 General Claims Commission, Compan XI, 382, 384. 8

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Art. 17

the question of passage in the Corfu Chanel Case 1949, where the International Court of Justice (ICJ) recognised the right of innocent passage through straits used for international navigation.21 However, the court explicitly decided against considering the more general question of a right of passage for warships through coastal waters. 22 The text of Art. 17 originated in Art. 15 of the draft articles on the law of the sea prepared 6 in advance of the Geneva Conference by the International Law Commission. 23 This reiterated ‘a principle recognized by international law and confirmed by the 1930 Codification Conference’.24 Art. 15 was subsequently adopted as Art. 14 of the Convention on the Territorial Sea and Contiguous Zone (CTSCZ), which reads, ‘[s]ubject 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.’ During the negotiation of the UNCLOS, proposals by States largely conformed to the approach taken in the CTSCZ. 25 This formulation was followed with only minor technical and drafting changes to produce the final version of Art. 17.26

III. Elements 1. ‘Subject to this Convention’ The right of innocent passage is not absolute since it is qualified by reference to other rules 7 of the Convention. This specifically relates to Section 3 of Part II. Consideration should also be made to other provisions affecting or dealing with the right of innocent passage. Thus, Art. 8 confirms that a right of innocent passage exists in waters that have been rendered internal waters through the use of straight baselines. 27 Art. 45 deals specifically with the right of innocent passage through straits used for international navigation. 28 Art. 52 regulates the right of innocent passage through archipelagic waters. Finally, Arts. 211 (3) and (4) deal with the right of costal States to regulate pollution in respect of vessels in the territorial sea. 29

2. ‘ships’ Although the right is enjoyed by ships, as a matter of international law the right extends to 8 ships by virtue of their connection to a State through the process of registration. 30 Enjoyment of the right of innocent passage by non-military vessels is uncontentious. Most controversies have focused on the rights of warships and submarines. An informal proposal by Argentina, 21 ICJ, Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v. Albania), Merits, Judgment of 9 April 1949, ICJ Reports (1949), 4, 28. 22 Ibid., 30. 23 ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4, 5–6 (Art. 15). Reproduced in ILC Yearbook (1956) vol II, p. 254, 258. 24 ILC Yearbook, ibid., 272. 25 Second Committee UNCLOS III, United Kingdom: Draft Articles on the Territorial Sea and Straits, UN Doc. A/CONF.62/C.2/L.3 (1974), OR III, 183, 184 (Art. 14); Second Committee UNCLOS III, Malaysia et al.: Draft Articles on Navigation through the Territorial Sea, Including Straits Used for International Navigation, UN Doc. A/CONF.62/C.2/L.16 (1974), OR III, 192 (Art. 1); Second Committee UNCLOS III, Nicaragua: Working Paper on Characteristics of the National Zone, UN Doc. A/CONF.62/C.2/L.17 (1974), OR III, 195 (para. 1); Second Committee UNLCOS III, Fiji: Draft Articles Relating to Passage through the Territorial Sea, UN Doc. A/ CONF.62/C.2/L.19 (1974), OR III, 196 (Art. 1). 26 See: UNCLOS III, Statement of Activities of the Conference During its First and Second Sessions, UN Doc. A/CONF.62/L.8/REV.1 (1974), OR III, 93, 111 (Provision 24); UNCLOS III, Revised Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/REV.I/PART II (1976), OR V, 151, 156 (Art. 16); UNCLOS III, Informal Composite Negotiating Text, UN Doc. A/CONF.62/WP.10 (1977), OR VIII, 7 (Art. 17). 27 See Tru ¨ mpler on Art. 8 MN 31. 28 See further Jia on Art. 45 MN 14–16. 29 See Bartenstein on Art. 211 MN 20–30. 30 Intertanko Case (note 2), para. 58.

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9–10

Part II. Territorial sea and contiguous zone

Bangladesh, China, Democratic Republic of Yemen, Ecuador, Madagascar, Pakistan, Peru and the Philippines to limit the right to non-military vessels was submitted at the Seventh Session of the Conference, but did not receive sufficient support. 31 Today a number of States continue to claim that warships and military vessels may not pass through the territorial sea without at least the prior notification to the coastal State. This position nevertheless continues to be resisted by naval powers, and it seems likely that the position will remain uncertain so long as neither side wishes to ‘force the issue’.32 9 The Convention does not define ship.33 It uses ship and vessel interchangeably, although the former tends to apply to matters of navigation and the latter to pollution control. Other international agreements provide broad definitions of ships.34 This includes hydrofoils, aircushion vehicles, submersibles, floating craft and floating platforms. The International Convention for Prevention of Pollution from Ships (MARPOL 73/78)35 includes within its definition fixed platforms which may be too wide for the purposes of Art. 17.36 There is some consideration of the definition of a ship under domestic law.37 Such judicial authorities tend to focus on whether or not the vessel is capable of being used in navigation. This usually excludes small leisure craft, such as jet-skis. 38 However, such definitions are concerned with the definition of ‘ship’ in municipal law and do not generally impact upon the question of the right of innocent passage.39 Given the general nature of the right of innocent passage, it may be assumed to include all ocean going vessels. This is consistent with the fact that specific provisions later deal with the passage of certain types of vessel, such as submarine, nuclear powered ships, ships carrying dangerous substances and warships. Accordingly, it becomes crucial to determine how the passage and activities of any specific vessel may be regulated in accordance with other provisions of Part II, Section III.

3. ‘of all States, whether coastal or land-locked’ 10

The use of the word ‘of’ does not infer ownership. Rather, it refers to the nationality of a ship, as addressed in Art. 91.40 Art. 17 states a rule of general international law, hence the reference to the ships of ‘all States’, and not merely States parties. The right of innocent passage is well established as a matter of customary international law, a point rightly noted by the ICJ in the Nicaragua Case.41 The right of innocent passage has been universally secured in domestic law, although some aspects of its operation vary in practice. 42 It is also 31 UNCLOS III, Informal Suggestion by Argentina et al., UN Doc. C.2/Informal Meeting/30 (1978, mimeo.), reproduced in: Renate Platzo¨der, Third United Nations Conference on the Law of the Sea: Documents, vol. V (1984), 39. 32 Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 90; see also Barnes on Art. 23 MN 5–8. 33 The International Law Commission avoided defining ship, given the drafting difficulties this posed. See: ILC, Summary Records of the Meetings of the 7th Session, ILC Yearbook (1955), vol. I, 10. 34 See Rule 1 (c) International Regulations for Preventing Collisions at Sea; Annex 1 Art. 1 Convention for Prevention of Pollution of the Sea by Oil. 35 International Convention for Prevention of Pollution from Ships, as amended by 1978 Protocol (MARPOL 73/78). 36 Annex I Art. 1 MARPOL 73/78. 37 Cope v. Vallette Dry-Dock Co, 119 US 625 (1887); Ellis v. United States, 206 US 246 (1907); Stewart v. Dutra Construction, 543 US 481 (2005). 38 See, for example, Steedman v. Scofield [1992] 2 Lloyd’s Rep. 163 (UK); R. v. Goodwin [2006] 1 Lloyd’s Rep. 432 (UK). 39 The question posed in those cases was whether the vehicle in question met the definition of ‘ship’ contained in S. 313 (1) of the UK Merchant Shipping Act, which states that ‘ship includes every description of vessel used in navigation.’ Personal watercraft, like jet-skis, are excluded from this definition since they are not used for purposive navigation which is regarded as meaning planned or ordered movement, and not simply general movement. 40 See Guilfoyle on Art. 91 MN 12–17. 41 ICJ, Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Judgment of 27 June 1986, ICJ Reports (1986), 14 (para. 214). 42 See generally UN OLA, Laws and Regulations on the Regime of the Territorial Sea (1957).

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widely recognised in domestic case law.43 The right is universally accepted in academic writings, although commentators report some variations in the views of States and vary in their interpretation of the precise extent of the right, especially as regards its exercise by warships and vessels carrying hazardous materials. 44 The inclusion of the terms coastal or land-locked seems superfluous given the previous reference to all States.

4. Violations of Art. 17 Art. 17 does not deal expressly with violations of the right of innocent passage. In 11 principle, coastal States which violate the rights of foreign vessels may incur international responsibility to the flag State. Non-military vessels engaged in non-innocent passage are subject to the enforcement jurisdiction of the coastal State, although it appears uncommon in practice for this to be asserted whilst vessels are at sea. 45 This is implicit in the right of coastal State under Art. 25 (1).46 The position of warships which violate the right of innocent passage is dealt with under Art. 30.

Article 18 Meaning of passage 1. Passage means navigation through the territorial sea for the purpose of: (a) traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters; or (b) proceeding to or from internal waters or a call at such roadstead or port facility. 2. Passage shall be continuous and expeditious. However, passage includes stopping and anchoring, but 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 rendering assistance to persons, ships or aircraft in danger or distress. Bibliography: Richard Barnes, Refugee Law at Sea, ICLQ 53 (2004), 44–77; Aldo Chircop/Olof Linden/Detlef Nielsen, Characterising the Problem of Places of Refuge, in: Aldo Chircop/Olof Linden (eds.), Places of Refuge for Ships: Emerging Environmental Concerns of a Maritime Custom (2006), 1–32; Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); Constantine. J. Colombos, The International Law of the Sea (3rd edn. 1954); Philip C. Jessup, The Law of Territorial Waters and Maritime Jurisdiction (1927); Anthony Morrison, Places of Refuge for Ships in Distress: Problems and Methods of Resolution (2012); Francis Ngantcha, The Right of Innocent Passage and the Evolution of the International Law of the Sea (1990); Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Daniel P. O’Connell, The International Law of the Sea, vol. I (1984); Haijang Yang, Jurisdiction of the Coastal State of Foreign Merchant Ships in Internal Waters and the Territorial Sea (2006) Documents: Harvard Law School, The Law of Territorial Waters, Draft Convention with Commentary, AJIL 23, Suppl. No. 2 (1929), 242–365; ILC, Report of the International Law Commission Covering the Work of Its Eighth Session, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, reproduced in: ILC Yearbook (1956), vol. II, 253–

43 United States v. Louisiana, 394 US 11 (1969), 22–23; Post Office v. Estuary Radio Ltd. [1968] 2 QB 740, 759 (UK); Pianka v. The Queen [1979] AC 107 (UK); ECJ, C-286/90, Anklagemyndigheden v. Peter Michael Poulsen and Diva Navigation Corp., 1992 ECR I-6019, paras. 25 and 27; Attorney-General v. Ngati Apa [2003] 3 NZLR 643 (New Zealand). 44 Gerald Fitzmaurice, Some Results of the Geneva Conference on the Law of the Sea: Part I – The Territorial Sea and Contiguous Zone and Related Topic, ICLQ 8 (1959), 73, 90; Daniel P. O’Connell, The International Law of the Sea, vol. I (1982), 259–298; William E. Butler, Innocent Passage and the 1982 Convention: The Influence of Soviet Law and Policy, AJIL 81 (1987), 331–347; Myres S. McDougall/William T. Burke, The Public Order of the Oceans (1987), 176 et seq.; Francis Ngantcha, The Right of Innocent Passage and the Evolution of the International Law of the Sea (1990), 38 et seq.; Rene´-Jean Dupuy/Daniel Vignes, A Handbook on the New Law of the Sea (1991), 906 et seq.; Churchill/Lowe (note 33), 81 et seq. 45 See Erik J. Molenaar, Coastal State Jurisdiction Over Vessel-Source Pollution (1998), 271–272. 46 See Barnes on Art. 25 MN 5–8.

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1–3

Part II. Territorial sea and contiguous zone

302; ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45; ILC, Decisions of National Courts Relating to the Most-Favoured-Nation Clause, UN Doc. A/CN.4/269 (1973), reproduced in: ILC Yearbook (1973), vol. II, 117– 153; League of Nations, Acts of the Conference for the Codification of International Law, LN Doc. C.74.M.39 (1929); League of Nations, Report of Second Commission (Territorial Sea), LN Doc. C.230.M.117.1930.V. (1930.V.9); League of Nations, Report to the Council on the Questions which Appear Ripe For International Regulation, LN Doc. C.196.M.70.1927.V (1927) Cases: ACT Shipping (OTE) Ltd v. Minister for the Marine, Ireland and the Attorney-General (The MV Toledo) [1995] 2 ILRM 30 (Ireland); ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Judgment of 27 June 1986, ICJ Reports (1986), 14; International Arbitral Tribunal, Libyan Arab Foreign Investment Company (LAFICO) v. Republic of Burundi, Arbitral Award 4 March 1991, ILR 96 (1994), 279 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘Passage means navigation through the territorial sea’ . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘Passage shall be continuous and expeditious’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘stopping and anchoring incidental to navigation’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. ‘force majeure or distress’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. ‘rendering assistance’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. Relationship with other Articles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 6 6 7 8 10 12 13

I. Purpose and Function The purpose of Art. 18 is to provide a definition of passage in relation to the right of innocent passage. This pertains to the navigational aspect of passage, and is distinct from the motive or reasons for passage, or its innocent conduct, which is addressed in Art. 19. 1 O’CONNELL asserts that the purpose of defining passage separately from its innocence is to confirm the authority of coastal States to expel vessels that are not engaged in passage, innocent or otherwise.2 2 The meaning of passage is limited to navigation through the territorial sea, without necessarily entering the internal waters of the coastal State. It also includes passage to or from internal waters, and calls at roadsteads or ports. However, this does not extend to a right of entry into ports or internal waters. Such entry depends upon the permission of the coastal State. Passage should be continuous and expeditious, although allowance is made for stopping and anchoring when this is incidental to ordinary navigation, or rendered necessary by force majeure or situations of distress, or to provide assistance to others. Art. 18 should be read in conjunction with Art. 19 on the meaning of innocent passage. Passage may also be subject to qualifications or conditions as per Arts. 21, 22, 25 (2), 27 (2) and 28 (3). 1

II. Historical Background 3

The idea that foreign ships have a general right of passage through a third State’s coastal waters can be traced to early writers on the law of the sea, with potential older antecedents in Roman Law.3 Such passage supported communication and trade between peoples and nations, and it was generally required to be peaceful. It is not clear when the right of passage emerged as a matter of customary international law, although prevailing opinion points to 1

See Barnes on Art. 19 MN 6–23. Daniel P. O’Connell, The International Law of the Sea, vol. I (1982), 269 et seq. 3 Ibid., 260; Francis Ngantcha, The Right of Innocent Passage and the Evolution of the International Law of the Sea (1990), 39; Haijang Yang, Jurisdiction of the Coastal State of Foreign Merchant Ships in Internal Waters and the Territorial Sea (2006), 139–142. 2

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4–5

Art. 18

the decades preceding the 1930 Hague Codification Conference. 4 Thus, the Institut De Droit International rules on the status of sovereign waters referred to ‘le droit de passage inoffensive’ and outlined the extent of this in four articles.5 Art. 6 of the International Law Association draft articles of 1924 refers to the ‘right to pass freely through [coastal] waters’. 6 In 1929, the Harvard Law School Draft Convention stated that ‘[a] State must permit innocent passage through its marginal seas’.7 Much of the current legal regime was consolidated during the preparations for the Hague 4 Codification Conference of 1930. Art. 7 of the League of Nations Committee of Experts Draft, drawn up by SCHU¨CKING, referred to the right of ‘pacific passage’. This included ‘the right of sojourn in so far as the latter may be necessary for navigation’. 8 The Preparatory Committee for the 1930 Conference issued a statement based on the views of States which noted that the right of innocent passage for merchant ships was uncontested. 9 This was followed by Provision 19 of the Basis of Discussion which included as part of the right, persons and goods aboard ships, and anchoring so far as is necessary for navigational purposes. Art. 3 of the Draft Text of the Codification stated: ‘Passage means navigation through the territorial sea for the purpose either of traversing that sea without entering inland waters, or of proceeding to inland waters, or of making for the high sea from inland waters […]. [Passage] includes stopping and anchoring, but in so far only as the same are incidental to ordinary navigation or are rendered necessary by force majeure or by distress.’ 10

It may be observed that consensus on the existence of a general right at this time should not be taken to mean absolute agreement on the precise parameters of the right of passage. For example, NGANTCHA cites the view of the United States and United Kingdom as rejecting the position that innocent passage includes passage to or from ports. 11 The Hague definition introduced a new element to passage not previously encompassed by State practice: the idea of ships travelling through the territorial sea to or from internal waters. C HURCHILL & LOWE point out that this was done not because there was a right to enter or leave such waters, but to bring such ships within the general regime of innocent passage and to subject them to coastal State control and jurisdiction.12 The approach taken at the Hague Conference was followed by the International Law 5 Commission (ILC) during the drafting of the Convention on the Territorial Sea and Contiguous Zone (CTSCZ).13 Art. 14 of which provides that: ‘2. Passage means navigation through the territorial sea for the purpose of either traversing that sea without entering internal waters, or of proceeding to internal waters, or of making for the high seas. 3. Passage includes stopping and anchoring, but only in so far as the same are incidental to ordinary navigation or are rendered necessary by force majeure or by distress.’ 14

4 Philip C. Jessup, The Law of Territorial Waters and Maritime Jurisdiction (1927), 120; Constantine J. Colombos, The International Law of the Sea (3rd edn. 1954), 239–240; for a contrasting view, see Ngantcha (note 3), 38. 5 Institute de Droit International, Re `gles sur la de´finition et le re´gime de la mer territoriale, AnnIDI 13 (1894– 1895), 329–330. 6 ILA, Report of the Thirty-Third Conference 1924 (1925), 101. 7 Harvard Law School, The Law of Territorial Waters: Draft Convention with Commentary, AJIL 23, Suppl. No. 2 (1929), 242, 295 (commentary on Art. 14). 8 League of Nations, Report to the Council on the Questions which Appear Ripe For International Regulation, LN Doc. C.196.M.70.1927.V (1927), 72. 9 League of Nations, Acts of the Conference for the Codification of International Law, LN Doc. C.74.M.39 (1929). 10 League of Nations, Report of Second Commission (Territorial Sea), LN Doc. C.230.M.117.1930.V. (1930.V.9), 13. 11 Ngantcha (note 3), 53. 12 Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 82. 13 ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4–12. 14 Ibid., 5.

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6–7

Part II. Territorial sea and contiguous zone

This provided the basis for Art. 18 of the 1982 Convention, although subject to a number of drafting changes that were intended to clarify the meaning of passage. Firstly, Art. 18 refers to roadsteads and ports outside internal waters. This recognised recent developments in practice and can be traced to a proposal advanced by Fiji at the Sea-Bed Committee in 1973,15 and subsequently repeated at the First Session of UNCLOS by the UK.16 Secondly, Art. 18 (2) adds a reference to the objective of rendering assistance. This originated in a proposal by Malaysia, Morocco, Oman and Yemen.17 Thirdly, an introductory sentence referring to continuous and expeditious passage was included in Art. 18 (2). These changes were included in a consolidated text in the Informal Single Negotiation Text. 18 No significant amendments were made pending the adoption of the final text.

III. Elements 1. ‘Passage means navigation through the territorial sea’ 6

Passage encompasses both lateral passage, as well as passage to or from internal waters or ports (� Art. 11) and roadsteads (� Art. 12). Lateral passage involves progress through the territorial sea without calling at a port or other shore facility. Passage to or from coastal facilities and internal waters will only be available when internal waters or said facilities are open to international navigation. It is important to note that coastal States are quite free to control access to ports and internal waters.19 Historically, this has been done through bilateral treaties of friendship, commerce and navigation. In the absence of such treaty rights, access by ships remains a privilege. There is no distinction between the two types of passage under Art. 18 (1); the provision merely serves to reinforce that passage is not limited to mere lateral passage.

2. ‘Passage shall be continuous and expeditious’ 7

The general rule, subject to the specified exceptions, is that passage must be continuous and expeditious. The use of ‘only’ in the wording of Art. 18 (2) cl. 2 indicates that the exceptions are the only permissible grounds for stopping or anchorage. The general rule is indicative of a requirement to proceed in a reasonably direct route through the territorial sea. As the ILC noted during the preparatory work on the CTSCZ, this was specifically intended to preclude hovering.20 Expeditious passage does not mean that vessels must navigate at full speed.21 They should proceed at a normal operational speed, having due regard to the local, weather, hydrographical and navigational conditions.

15 Sea-Bed Committee, Fiji: Draft Articles Relating to Passage through the Territorial Sea, UN Doc. A/AC.138/ SC.II/L.42 (1973), 1 (paras. 1 and 2). 16 Second Committee UNCLOS III, United Kingdom: Draft Articles on the Territorial Sea and Straits, UN Doc. A/CONF.62/C.2/L.3 (1974), OR III, 183 (Art. 2). 17 Second Committee UNCLOS III, Malaysia et al.: Draft Articles on Navigation through the Territorial Sea, Including Straits Used for International Navigation, UN Doc. A/CONF.62/C.2/L.16 (1974), 192 (Art. 3 (5)). 18 UNCLOS III, Informal Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/PART II (1975), OR IV, 152, 155 (Art. 15). 19 ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Judgment of 27 June 1986, ICJ Reports (1986), 14, 111 (paras. 212–213). 20 ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12, 19. 21 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 163.

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Meaning of passage

18

3. ‘stopping and anchoring incidental to navigation’ The first exception to continuous passage relates to stopping or anchorage when it is 8 incidental to ordinary navigation. The view that a vessel anchoring in the territorial sea of another State has broken passage and may be regarded as within these waters for purposes other than innocent passage is no longer tenable.22 However, it may be argued that if stopping and anchoring was the sole purpose of entering territorial waters, then this may not be considered incidental to passage and the coastal State may seek to deny passage into the territorial sea. In practice, it is difficult to ascertain whether or not stoppage or anchoring is incidental to 9 ordinary navigation. Typically this would include anchoring in bad weather, stoppage due to mechanical failure, temporary anchorage outside a port whilst awaiting a berth, anchorage pending pilotage and other navigational assistance, and anchorage under direction from the coastal State. Coastal States may be more ready to interfere with foreign vessels when there is some manifestation of non-innocence rather than on the basis of the quality of passage alone.

4. ‘force majeure or distress’ The second exception relates to emergency situations involving the vessel itself – force 10 majeure and distress. Art. 18 does not define either of these terms. However, both may be taken to mean situations of real danger that are beyond the control of those aboard the vessel. During its discussion of distress in the context of State responsibility, the ILC referred to ‘a situation of serious danger, but not necessarily one that jeopardizes the very existence of the person concerned’.23 Typically force majeure or distress admit situations where individuals lack control over their circumstances and so exculpates them from acting in breach of their obligations. This defence tends to preclude self-induced force majeure.24 A strict reading of Art. 18 suggests this exception only relates to emergency situations 11 arising during passage through the territorial sea, rather than permitting entry into the territorial sea to seek shelter or assistance. Historically, such a right of refuge has usually been granted by coastal States.25 However, this has recently become a source of controversy, as vessels either in physical distress or having rendered assistance to persons in distress have sought to gain access to ports or sheltered waters in the territorial sea. In some circumstances refuge in coastal waters has been refused.26 This refusal has typically been on the basis that the coastal State wishes to protect itself from the risks of pollution or from immigration problems resulting from mass influxes of irregular maritime migrants, including people seeking asylum.27

5. ‘rendering assistance’ The third exception relates to vessels rendering assistance to other persons, vessels or 12 aircraft. This aspect of Art. 18 marks a development beyond the scope of earlier regimes on passage in the Hague Codification draft and the CTSCZ but is consistent with normal maritime practice. It also reflects Art. 98, which establishes a general duty to render 22

Draft Convention with Commentary (note 7). ILC, Decisions of National Courts Relating to the Most-Favoured-Nation Clause, UN Doc. A/CN.4/269 (1973), reproduced in: ILC Yearbook (1973), vol. II, 117, 134. 24 International Arbitral Tribunal, Libyan Arab Foreign Investment Company (LAFICO) v. Republic of Burundi, Arbitral Award 4 March 1991, ILR 96 (1994), 279. 25 Aldo Chircop/Olof Linden/Detlef Nielsen, Characterising the Problem of Places of Refuge, in: Aldo Chircop/ Olof Linden (eds.) Places of Refuge for Ships: Emerging Environmental Concerns of a Maritime Custom (2006), 1, 4. 26 Anthony Morrison, Places of Refuge for Ships in Distress: Problems and Methods of Resolution (2012), 28–37. 27 Richard Barnes, Refugee Law at Sea, ICLQ 53 (2004), 44–77. 23

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assistance.28 The provision embodies a strong humanitarian rationale and expands the scope of passage to allow for rescue assistance. It is an approach that is also recognized in domestic case-law.29

6. Relationship with other Articles 13

Art. 18 considers navigation to or from internal waters as constituting ‘passage’ within the framework of innocent passage. A number of related provisions also refer to passage, but in more restrictive terms.30 Thus, Art. 25 (2) permits the coastal State to take steps to prevent the breach of any conditions attaching to ships visiting internal waters or port facilities outside internal waters. Art. 27 (2) reaffirms the coastal State’s right to assert criminal jurisdiction over vessels passing through the territorial sea after leaving internal waters. Art. 28 (3) reserves the right to execute civil proceedings against foreign vessels lying in or passing through the territorial sea after leaving internal waters.

Article 19 Meaning of innocent passage 1. 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. 2. Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities: (a) any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations; (b) any exercise or practice with weapons of any kind; (c) any act aimed at collecting information to the prejudice of the defence or security of the coastal State; (d) any act of propaganda aimed at affecting the defence or security of the coastal State; (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 and regulations of the coastal State; (h) any act of wilful and serious pollution contrary to this Convention; (i) any fishing activities; (j) the carrying out of research or survey activities; (k) any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State; (l) any other activity not having a direct bearing on passage. Bibliography: Richard Barnes, Refugee Law at Sea, ICLQ 53 (2004), 47–77; William T. Burke, Who Goes Where, When and How: International Law for Sea Transportation, International Organization 31 (1977), 267–289; Karin M. Burke/Deborah A. DeLeo, Innocent Passage and Transit Passage in the United Nations Convention on the Law of the Sea, Yale Journal of World Public Order 9 (1983), 389–408; William E. Butler, Innocent Passage and the 1982 Convention: The Influence of Soviet Law and Policy, AJIL 81 (1987), 331–347; Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); Douglas Guilfoyle, Maritime Interdiction of Weapons of Mass 28

Nordquist/Nandan/Rosenne (note 1), 162. See further Guilfoyle on Art. 98 MN 7–11. ACT Shipping (OTE) Ltd v. Minister for the Marine, Ireland and the Attorney-General (The MV Toledo) [1995] 2 ILRM 30, 48–49 (Ireland). 30 Ngantcha (note 3), 55. 29

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Destruction, Journal of Conflict and Security Law 12 (2007), 1–36; 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, ICLQ 8 (1959), 73–121; David Froman, Uncharted Waters: Non-innocent Passage of Warships in the Territorial Sea, San DiegoLRev 21 (1983), 625–689; Kari Hakapa¨ a¨, Marine Pollution in International Law: Material Obligations and Jurisdiction (1981); Kari Hakapa¨a¨/Erik J. Molenaar, Innocent Passage-Past and Present, Marine Policy 23 (1999), 131–145; Lindy S. Johnson, Coastal State Regulation of International Shipping (2004); Daniel H. Joyner, The Proliferation Security Initiative: Nonproliferation, Counterproliferation and International Law, YaleJIntL 30 (2005), 507–548; Michael J. Kearney, The Prohibition of Propaganda for War in International Law (2007); Natalie Klein, Maritime Security and the Law of the Sea (2011); Rob McLaughlin, United Nations Mandated Naval Interdiction Operations in the Territorial Sea, ICLQ 51 (2002), 249–278; Erik J. Molenaar/Harm M. Dotinga, The Netherlands, in: Erik Franckx (ed.) Vessel-source Pollution and Coastal State Jurisdiction (2001), 303–322; Francis Ngantcha, The Right of Innocent Passage and the Evolution of the International Law of the Sea (1990); Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Daniel P. O’Connell, The International Law of the Sea, vol. I (1982); Glen Plant, International Law and Direct Action Protests at Sea: Twenty Years On, NYIL 33 (2002), 75–117; J. Ashley Roach and Robert W. Smith, Excessive Maritime Claims (2012); John W. Rolph, Freedom of Navigation and the Black Sea Bumping Incident: How ‘Innocent’ Must Innocent Passage Be?, Military Law Review 135 (1992), 137–165; Marco Roscini, The Navigational Rights of Nuclear Ships, LJIL 15 (2002), 251–265; Donald R. Rothwell, Coastal State Sovereignty and Innocent Passage: The Voyage of the Lusitania Expresso, Marine Policy 16 (1992), 427–437; Brian Wilson/James Kraska, American Security and Law of the Sea, ODIL 40 (2009), 268–290; Ru¨diger Wolfrum, Freedom of Navigation: New Challenges, in: Myron H. Nordquist/Tommy T. B. Koh/John Norton Moore (eds), Freedom of Seas, Passage Rights and the 1982 Law of the Sea Convention (2009), 79–94; Haijang Yang, Jurisdiction of the Coastal State of Foreign Merchant Ships in Internal Waters and the Territorial Sea (2006) Documents: Conference for the Codification of International Law: Final Act, AJIL 24, No. 3 Suppl. (1930), 169– 191; EU, Commission Decision of 21 April 2016 on Notifying a Third Country of the Possibility of Being Identified as a Non-Cooperating Third Country in Fighting Illegal, Unreported and Unregulated Fishing. C/ 2016/2255, OJ C 23.4.2016; ILC, Report on the Regime of the Territorial Sea by Mr. J.P.A. François, Special Rapporteur, UN Doc. A/CN.4/53 (1952); ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4–12; IMO, Guidelines on Places of Refuge for Ships in Need of Assistance, IMO Res. A. 949 (23) of 5 December 2003; SC Res. 820 of 17 April 1993; Union of Soviet Socialists Republics – United States: Joint Statement with Attached Uniform Interpretation of Rules of International Law Governing Innocent Passage, 23 September 1989, ILM 28 (1989), 1444–1447; US Department of State, Proliferation Security Initiative: Statement of Interdiction Principles, available online at http://www.state.gov/t/isn/c27726.htm Cases: ECtHR, Women on the Waves and Others v. Portugal, Judgment of 2 March 2009, App. No. 31276/05; ICJ, Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v. Albania), Merits, Judgment of 9 April 1949, ICJ Reports (1949), 4; Supreme Court of the Netherlands, Attican Unity, 7 February 1986, Schip en Schade No. 61 (1986); R. v. Keyn [1876] 2 Ex. D. 63 (UK) Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘prejudicial to peace, good order or security’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘in conformity with this Convention and other rules of international law’ . . . . . . 3. Is Article 19 (2) Exhaustive? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. ‘threat or use of force’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. ‘exercise or practice with weapons of any kind’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. ‘collecting information’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. ‘act of propaganda’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8. ‘launching, landing or taking on board of any aircraft’ . . . . . . . . . . . . . . . . . . . . . . . . . . 9. ‘launching, landing or taking on board of any military device’ . . . . . . . . . . . . . . . . . . 10. Activities ‘contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11. ‘wilful and serious pollution’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12. ‘fishing activities’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13. ‘research or survey activities’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14. ‘interfering with any systems of communication’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15. ‘other activities not having a direct bearing on passage’ . . . . . . . . . . . . . . . . . . . . . . . . .

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I. Purpose and Function 1

Art. 19 defines the term ‘innocent’ for the purposes of passage within the territorial sea of a foreign State. The innocence of passage is directly linked to the concept of sovereignty in the territorial sea (� Art. 2 (1)). Without sovereignty there would be no need to determine whether passage was innocent or not since there would be no State authority to which noninnocent passage would relate. Passage through the territorial sea will be considered innocent provided that it is not prejudicial to the peace, good order or security of the coastal State. In order to help determine what constitutes a prejudicial act, a list of twelve non-innocent activities is provided in Art. 19 (2). This is intended to minimise subjectivity in determining innocence. Non-innocent activities must occur within the territorial sea before the coastal State can invoke its rights in relation to non-innocent passage under the Convention.

II. Historical Background The idea or principle of peaceful passage is long rooted in practice. 1 However, the modern concept of innocent passage only emerged in the 19th century, being advanced for the first time in the English case of R. v. Keyn.2 The majority of judges, by a narrow margin of seven to six, held that the court had no jurisdiction to try a foreign person for manslaughter who was in command of a foreign ship and responsible for a death resulting from a collision within 3 miles of the English shore. This verdict was unexpected, and it is clear from the judges’ reasoning that there were conflicting authorities as to the nature of the territorial sea, the right of the State to exercise jurisdiction, as well as the rights and responsibilities therein. The uncertainty and debate sparked by this decision, and the need for a clear and uniform system of navigation, generated serious attempts to codify the regime of the territorial sea and passage therein. Art. 19 has its origins in Art. 3 (2) of the 1930 Hague Draft Articles, which provided that ‘[p]assage is not innocent when a vessel makes use of the territorial sea of a coastal State for the purpose of doing any act prejudicial to the security, to the public policy or to the fiscal interests of that State’.3 The reference to fiscal interests was intended to cover all matters relating to customs, and export, import and transit prohibitions. 3 An opportunity to consider the legal nature of innocent passage arose in the Corfu Channel Case of 1949, in which the International Court of Justice placed emphasis on the manner of passage.4 Thus, passage that did not threaten the coastal States was innocent. The approach of the Court was to make it clear that innocence should be determined objectively. 5 4 In 1952, International Law Commission (ILC) Special Rapporteur FRANÇOIS submitted his first report on the law of the territorial sea, marking the beginning of the ILC’s work on this topic.6 The ILC tended to favour the approach taken in the Hague Conference, which focused on specific acts. The threefold approach to non-innocence in the Hague Draft was streamlined in the ILC draft text for the Convention on the Territorial Sea and Contiguous Zone (CTSCZ). Thus, draft Art. 15 (3) provided that: ‘[p]assage is innocent so long as a ship does not use the territorial sea for committing any acts prejudicial to the security of the coastal 2

1 Haijang Yang, Jurisdiction of the Coastal State of Foreign Merchant Ships in Internal Waters and the Territorial Sea (2006), 139–145. 2 R. v. Keyn [1876] 2 Ex. D. 63 (UK); see also Daniel P. O’Connell, The International Law of the Sea, vol. I (1982), 264. 3 Conference for the Codification of International Law: Final Act, AJIL 24, No. 3 Suppl. (1930), 169, 185. 4 ICJ, Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v. Albania), Merits, Judgment of 9 April 1949, ICJ Reports (1949), 4, 30. 5 Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 83. 6 ILC, Report on the Regime of the Territorial Sea by Mr. J.P.A. François, Special Rapporteur, UN Doc. A/ CN.4/53 (1952), 3–44.

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State or contrary to the present rules, or to other rules of international law.’ 7 This was regarded as sufficient to protect coastal State interests in the territorial sea. The reference to ‘present rules’ established a link between passage and compliance with coastal States laws under draft Art. 18, although this raised concerns about whether trivial breaches of local laws could render passage non-innocent. At UNCLOS I, agreement on the precise text for innocent passage remained difficult to 5 achieve.8 This was mainly the result of trying to balance a clear and unfettered right for passage with the authority of the coastal State to take protective measures, especially in situations where the precise conduct of a vessel was difficult to discern. Eventually, Art. 14 (4) CTSCZ was adopted, providing that: ‘[p]assage 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 these Articles and with other rules of international law’.

Art. 14 (5) CTSCZ continued to provide that the passage of fishing vessels is non-innocent if they fail to observe coastal States restrictions on foreign fishing in the territorial sea. This acknowledged the importance of exclusive fishing rights in the territorial sea. The text was broadly framed and so generally compatible with State practice, although F ITZMAURICE did note that it adopted a more restrictive view of innocent passage by enlarging the potential range of non-innocence.9 Art. 14 CTSCZ did not require the commission of a particular act, or the breach of a coastal State law, before innocence was lost, nor did such an act or breach necessarily result in a loss of innocence. It left coastal States with considerable latitude in determining whether particular passage was innocent or not. By the time UNCLOS III was convened, it was clear that the wide discretion afforded to 6 coastal States in Art. 14 (4) CTSCZ was unacceptable to many States. This resulted in concerted efforts to redress the balance of interests between coastal States and maritime States in favour of the latter. Although Art. 19 (1) is virtually the same as Art. 14 (4) CTSCZ, with the substitution of ‘this Convention’ for ‘these Articles’, a significant development was the enumeration of a range of acts in Art. 19 (2), acts considered to be prejudicial to peace, good order and security. Art. 19 (2) emerged from a Fijian proposal intended to provide a more objective means of determining what acts are prejudicial to the peace, good order and security of the coastal State.10 This approach gained broad support during the subsequent negotiations, with States adding to or refining the lists of acts. 11 At the Third Session of the Conference in 1975, an informal consultative group drafted a consolidated text which was then presented as Art. 16 of the Informal Single Negotiating Text. 12 This established the current structure of Art. 19 (2), with the main difference being a separate provision on the passage of fishing vessels, requiring such passage to be in conformity with coastal State laws and regulations, and a paragraph making allowance for activities either permitted by the coastal State or rendered necessary by force majeure or when rendering assistance to vessels and persons in distress. At the Fourth Session in 1976, the Revised Single Negotiating Text further consolidated the draft text, bringing fishing in line with the list of other prejudicial 7 ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4, 6. 8 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 167. 9 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, ICLQ 8 (1959), 73–121. 10 Sea-Bed Committee, Fiji: Draft Articles Relating to Passage Through the Territorial Sea, UN Doc. A7AC.138/SC.II/L.42 and Corr. 1 (1973), reproduced in: GAOR 28th Sess., Suppl. 21 (A/9021-III), 91, 98 (Art. 14), was replaced by UNCLOS III, Fiji: Draft Articles Relating to Passage through the Territorial Sea, UN Doc. A/CONF.62/C.2/L.19 (1974), OR III, 196 (Art. 2). 11 See Nordquist/Nandan/Rosenne (note 8), 167 et seq. 12 UNCLOS III, Informal Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/PART II (1975), OR IV, 152, 155 (Art. 16).

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activities and removing the separate provision on prior authorization and force majeure/ distress.13 During this period there were unsuccessful proposals by some States and the International Chamber of Shipping to modify the provisions on pollution and to remove the ‘catch-all’ provision contained in Art. 19 (2)(l).14 There were no changes of significance before the text’s final adoption in 1982.

III. Elements 1. ‘prejudicial to peace, good order or security’ The Convention does not define ‘peace, good order and security’. The phrase admits a wide range of factors that could be prejudicial to the coastal State, and suggests that a residual discretion is available to the coastal State to determine such matters. ‘Innocent’ has always been used in a negative formulation in the context of innocent passage in the territorial sea. Thus, Art. 3 (2) of the 1930 Hague Draft states that ‘passage is not innocent when a vessel’ makes use of the sea for prejudicial acts. Art. 14 (4) CTSCZ provides that ‘passage is innocent so long as it is not prejudicial […].’ Similarly, Art. 19 (1) refers to passage which is ‘not prejudicial to peace, good order and security.’ This approach indicates that some positive act is required to manifest non-innocence. Accordingly, it precludes a coastal State from considering a wider range of passive factors that do not amount to acts, such as nature of a vessel’s cargo, its previous and destination ports of call, its previous navigational history, the nationality of its crew, and the identity of any controlling interests in the vessel. 15 8 Since peace, good order and security are very wide terms, several commentators have sought to limit their construction. Commenting on the same phrase within the 1958 CTSCZ, FITZMAURICE insisted upon a narrow construction and evidence of a clear and direct prejudice to the coastal State.16 Another restrictive approach to determining prejudicial acts is to presume innocence until actual prejudicial conduct is established. 17 This places the burden on the coastal State to justify any interference, rather than the ship to justify its exercise of the right. In the present writer’s opinion, the best approach is that coastal States should exercise, at the very least, some degree of caution when deciding to interfere with passage, since this can undermine collective interests in trade and communication between nations. To some extent, this collective interest in communication and trade is served by Art. 19 (2), which provides for the first time, a list of activities deemed prejudicial to peace, good order and security. 9 In recent years, the question of which State’s security is prejudiced by the passage has become germane to the legality of measures taken to prevent the proliferation of weapons of mass destruction (WMD), and, more specifically, the interdiction of vessels in the territorial sea suspected of carrying WMD or related materiel. A literal reading of Art. 19 (1) appears to exclude coastal State interference with passage in order to prevent acts prejudicial to the peace, good order and security of third States or community interests. 18 Drawing on the idea that carriage of WMD is characteristic of non-innocence, some commentators argue that coastal States can take action against vessels carrying WMD through their territorial sea. 19 7

13 UNCLOS III, Revised Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/Rev.1/PART II (1976), OR V, 151, 156 (Art. 18). 14 See Nordquist/Nandan/Rosenne (note 8), 171 and 173. 15 William T. Burke, Who Goes Where, When And How: International Law for Sea Transportation, International Organization 31 (1977), 267, 272. 16 Fitzmaurice (note 9), 96–97. 17 William E. Butler, Innocent Passage and the 1982 Convention: The Influence of Soviet Law and Policy, AJIL 81 (1987), 331–347. 18 Ru ¨ diger Wolfrum, Freedom of Navigation: New Challenges, in: Myron H. Nordquist/Tommy T. B. Koh/ John Norton Moore (eds.), Freedom of Seas, Passage Rights and the 1982 Law of the Sea Convention (2009), 79, 90. 19 Daniel H. Joyner, The Proliferation Security Initiative: Nonproliferation, Counter-Proliferation and International Law, YaleJIntL 30 (2005), 507, 536; Natalie Klein, Maritime Security and the Law of the Sea (2011), 201.

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However, this view is difficult to reconcile with the idea that innocent passage focuses on the external conduct of the vessels, not internal matters or latent threats against unspecified and future targets.20 The Statement of Interdiction Principles adopted under the Proliferation Security Initiative attempts to strengthen and coordinate action against vessels suspected of carrying WMD, by exhorting both flag States and coastal States to take enforcement measures against vessels suspected of carrying WMD. 21 However, such action must be consistent with existing legal authorities, i. e. the UNCLOS.

2. ‘in conformity with this Convention and other rules of international law’ In addition to the requirement that passage be non-prejudicial to the peace, good order 10 and security of the coastal State, the second sentence of Art. 19 (1), requires that passage to be done ‘in conformity with this Convention and with other rules of international law’. The meaning of this sentence is not clear. A literal reading suggests that innocence is not the only criterion for passage, and that other rules of international law might also control the right of passage. On the other hand, a more contextual interpretation suggests that other rules of law can be used to define the meaning of innocence with the scope of the first sentence. In either case, it indicates that neither Art 19 nor the Convention is exhaustive of factors determining the meaning of innocent passage. At the very least, it leaves the door open for further regulation of the right. The reference to ‘conformity with this Convention’ creates a link to other articles, namely 11 Art. 21 concerning the coastal State’s right to regulate vessels in passage. It could be argued that compliance with such local laws is a requirement of passage under Art. 19 (1) since regulations must relate to innocent passage. However, this risks collapsing the distinction between international provisions governing the right of passage, and municipal laws adopted in accordance with this right. Furthermore, a mere breach of local regulations adopted in accordance with Art. 21 does not necessarily result in the loss of the right of innocent passage.22 For example, a vessel engaged in passage might accidentally damage a navigational aid and so become subject to local penal jurisdiction. This does not mean the loss of innocence. A mere breach of local navigation or conservancy laws should not render passage non-innocent because this would undermine the practical enjoyment of the right and defeat its purpose in facilitating navigation. However, the failure to comply with the coastal State’s subsequent and legitimate right to exercise enforcement powers to ensure compliance with such laws should be construed as non-innocent because this act would be prejudicial to peace, good order and security of the coastal State. It is the failure to comply with enforcement measures in respect of local laws that is non-innocent conduct and may lead to further measures under Art. 25. Navigational and conservancy matters aside, and except for the special case of customs, fiscal immigration or sanitary laws, the other provisions of Art. 21 (1) are already covered by the list of non-innocent activities in Art 19 (2) so there is no need to explain the relationship between these provisions in this way.

3. Is Article 19 (2) Exhaustive? Undoubtedly, Art. 19 (2) provides a more objective means of determining the innocence of 12 passage. However, the question remains as to whether or not it is exhaustive of non-innocent acts. If it is not exhaustive, then the coastal State retains broader powers to limit navigation in the territorial sea. Scholarly opinion is divided on the (non-) exhaustive nature of Art. 19 (2), 20 Douglas Guilfoyle, Maritime Interdiction of Weapons of Mass Destruction, Journal of Conflict and Security Law 12 (2007), 1, 17. 21 US Department of State, Proliferation Security Initiative: Statement of Interdiction Principles of 4th September 2014 (Principles 4(b) and 4(d)), available at: http://www.state.gov/t/isn/c27726.htm. 22 This reflects the emphasis on the ‘manner’ of passage in the Corfu Channel Case (note 4), 30; cf. also Francis Ngantcha, The Right of Innocent Passage and the Evolution of the International Law of the Sea (1990), 46.

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although the majority view appears to be that Art. 19 (2) is non-exhaustive. 23 It is difficult to identify a clear body of practice favouring either view. Weight is frequently attached to USSR and US Uniform Interpretation of Rules, developed after the Black Sea Bumping Incident. 24 This posits that Art. 19 contains an exhaustive list of activities. Accordingly, ‘a ship passing through the territorial sea that does not engage in any of those activities is in innocent passage.’25 On the other hand, there are instances when States have interdicted or prevented vessels from entering or passing through the territorial sea in respect of activities that are not clearly defined under the Art. 19 (2). For example, in 1992, Indonesia prevented the LUSITANIA EXPRESSO from completing a voyage through its territorial sea to the port of Dili in East Timor when the stated the purpose of the voyage was to raise awareness of human rights issues in East Timor.26 In 2001, Australia prevented the MV TAMPA from entering coastal waters off Christmas Island when the aim of the passage was to disembark persons rescued at sea and seeking asylum Australia.27 In 2004, Portugal denied access to its territorial sea to the BORNDIEP, a vessel operated by the Women on Waves Foundation to offer abortion advice and support.28 In this case, the European Court of Human Rights held, with reference to Arts. 10 and 11 of the European Convention on Human Rights, that the interference with the navigational rights of the vessel could not be justified as ‘necessary in a democratic society’. 29 Although rejecting this attempted limitation of passage, it indicates that questions of peace, good order and security could be construed in light of wider requirements of human rights, at least by human rights tribunals. 13 The open textured language used in Art. 19 (1) allows for a broad range of matters to be categorised as non-innocent. This is reinforced by the use of the word ‘any’ in the ‘catch-all clause’ in Art. 19 (2)(l). Together these provisions support the view that Art. 19 is nonexhaustive. Indeed, if Art. 19 (2)(l) were missing then there would be a closed list of noninnocent activities. In practice, instances of exorbitant assertions of jurisdiction over transiting vessels are few and far between. This combined with the fact that few maritime States are able to actively assert a right of passage against a coastal State means that a conclusive body of practice is unlikely to emerge on the precise limits of Art. 19 (2).

4. ‘threat or use of force’ 14

Vessels may not engage in ‘any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations’. This restates a fundamental rule of international law contained in Art. 2 (4) of the United Nations Charter. Arguably, it is actually wider that Art. 2 (4) UN-Charter since it also refers to ‘sovereignty’, thereby including acts prejudicial to the coastal State’s rights in its territorial

23 See O’Connell (note 2), 270; Ngantcha (note 22), 52; Kari Hakapa ¨ a¨/Erik J. Molenaar, Innocent Passage: Past and Present, Marine Policy 23 (1999), 131, 132; Churchill/Lowe (note 5), 85; Lindy S. Johnson, Coastal State Regulation of International Shipping (2004), 64, 66. The contrary view tends to be the domain of American publicists, see: Karin M. Burke/Deborah A. DeLeo, Innocent Passage and Transit Passage in the United Nations Convention on the Law of the Sea, Yale Journal of World Public Order 9 (1983), 389, 395; David Froman, Uncharted Waters: Non-innocent Passage of Warships in the Territorial Sea, San DiegoLRev 21 (1983), 625, 659; Brian Wilson/James Kraska, American Security and Law of the Sea, ODIL 40 (2009), 268, 278. 24 John W. Rolph, Freedom of Navigation and the Black Sea Bumping Incident: How ‘Innocent’ Must Innocent Passage Be?, Military Law Review 135 (1992), 137–165. 25 Union of Soviet Socialists Republics – United States: Joint Statement with Attached Uniform Interpretation of Rules of International Law Governing Innocent Passage, 23 September 1989, ILM 28 (1989), 1444. 26 Donald R. Rothwell, Coastal State Sovereignty and Innocent Passage: The Voyage of the Lusitania Expresso, Marine Policy 16 (1992), 427–437. 27 Richard Barnes, Refugee Law at Sea, ICLQ 53 (2004), 47–77. 28 See ECtHR, Women on the Waves and Others v. Portugal, Judgment of 2 March 2009, available at: http:// hudoc.echr.coe.int/hudoc/. 29 Ibid., para. 43.

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sea. It has the status of customary law and is thus binding on States regardless of its inclusion within the Convention. It is echoed in Art. 301. Apart from restrictions on the conduct of foreign vessels, it is important to note that 15 questions concerning the use of force and international peace and security take priority over normal rules on navigation. Thus, the UN Security Council may authorise the closure of a territorial sea to foreign shipping and authorise force to enforce such measures. 30 In principle, such measures are not limited to belligerent States. Arguably, Security Council measures under Chapter VII of the UN-Charter could be used to require other States to make coastal waters open to naval peacekeeping forces, and to permit supporting activities not within the scope of innocent passage, such as hovering, anchoring, and launching of aircraft.31

5. ‘exercise or practice with weapons of any kind’ Vessels in innocent passage may not engage in ‘any exercise or practice with weapons of 16 any kind.’ This follows from the foregoing rule on the threat or use of force, and reflects the priority afforded to the security interests of the coastal State. The fact that innocent passage is carried out as part of a military programmes, such as the United States’ Freedom of Navigation Programme,32 does not mean that it falls within Art. 19 (2)(b). The key distinction is between mere navigation and activities involving the use of weapons. That said, a coastal State is free to permit foreign States to conduct naval exercises and weapons practice within its territorial sea.

6. ‘collecting information’ Vessels must not engage in ‘any act aimed at collecting information to the prejudice of the 17 defence or security of the coastal State.’ This emphasises the security interests of the coastal State, and extends to conduct that is not immediately but also potentially hostile. Such activities might include observing and assessing the capacity and location of military/security facilities, charting the capacity and movements of military vessels, collecting data on submarine hydrography, and listening into or accessing secure communications. However, a challenge here is that such actions are invariably done clandestinely and so are difficult to ascertain and challenge.

7. ‘act of propaganda’ Vessels must not engage in ‘any act of propaganda aimed at affecting the defence or 18 security of the coastal State.’ Propaganda is not defined in the Convention. It is a problematic term since it may entail a wide range of communications designed either to serve the interests of the communicator or to influence the views, values and morale of the target audience.33 This may range from communications more directly associated with military action to general communications promoting human rights and other values, and which may challenge those held by the coastal State. Such activities might include the display of information on vessels, the distribution of leaflets, broadcasting radio/television signals and sending messages by other media. This restriction emphasises the importance of the security interests of the coastal State over acts that cannot be associated with navigation. 30

SC Res. 820 of 17 April 1993, paras. 28–29. See Rob McLaughlin, United Nations Mandated Naval Interdiction Operations in the Territorial Sea, ICLQ 51 (2002), 249–278. 32 See US Department of State, GIST: US Freedom of Navigation Program, December 1988, discussed in: J. Ashley Roach/Robert W. Smith, Excessive Maritime Claims (2012), 1–15. 33 See further Michael J. Kearney, The Prohibition of Propaganda for War in International Law (2007). 31

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8. ‘launching, landing or taking on board of any aircraft’ 19

Vessels may not launch, land or take on board any aircraft. This is consistent with the fact that aircraft do not enjoy the right of innocent passage. Such matters are governed by air law. No distinction is made between State and civil aircraft, both of which are covered by the prohibition. One possible exception here might be the launch of aircraft to assist in search and rescue operations, although this should generally be at the request or with the permission of the coastal State.

9. ‘launching, landing or taking on board of any military device’ 20

Vessels may not launch, land or take on board of any military device. ‘Military device’ is not defined in the Convention, but it should be construed purposively, having regard to the device’s intended function. It includes any weapons systems munitions, mines, traps, detection, surveillance and communication devices, drones, unmanned submersibles and troop carrying equipment, such as jet-skis or launches. It might be questioned whether the prohibition on taking aboard of military devices includes dual use goods and technologies, for example as listed in the Wassenaar Arrangement List of Dual Use Goods and Technologies and Munitions List.34 However, the delivery or loading of such items would probably fall under sub-paragraphs 19 (2)(g) or (l). Furthermore, the resupplying of vessels goes beyond mere passage, and would be subject to the restrictions in Art. 18. In cases of doubt, vessels should seek coastal State consent for such activities.

10. Activities ‘contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State’ 21

Under Art 19 (2)(g), vessels may not engage in ‘the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State’. Unlike the other provisions of Art 19 (2), this provision refers directly to the adoption of local laws. As such, Art. 19 (2)(g) is contingent upon the coastal State adopting appropriate law, as per Art. 21 (1)(h). The rationale for this appears to be that the variable nature of such types of regulation within individual States means that a general designation of non-innocence would be unworkable.

11. ‘wilful and serious pollution’ 22

Vessels may not commit ‘any act of wilful and serious pollution contrary to this Convention’. It should be read in conjunction with Art. 211 (4) which provides, in the context of the protection of the marine environment from vessel source pollution, that: ‘Coastal States may, in the exercise of their sovereignty within their territorial sea, adopt laws and regulations for the prevention, reduction and control of marine pollution from foreign vessels, including vessels exercising the right of innocent passage. Such laws and regulations shall, in accordance with Part II, section 3, not hamper innocent passage of foreign vessels.’ 35

23

The focus of Art. 19 (2) is on activities that are prejudicial to the coastal State. Accordingly, a vessel which violates passive requirements of international law, such as those pertaining to construction, equipment, design and manning standards, or a vessel which is carrying potentially dangerous cargo, does not automatically engage in non-innocent passage. 36 Pollu34

See further http://www.wassenaar.org/. See further Bartenstein on Art. 211 MN 27–30. 36 Kari Hakapa ¨ a¨, Marine Pollution in International Law: Material Obligations and Jurisdiction (1981), 184; Churchill/Lowe (note 5), 85; ILA, Report of the Committee on Coastal State Jurisdiction Relating to Marine Pollution (2000), 51–52. 35

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tion must be both wilful and serious in order to render passage non-innocent. Wilful indicates a requirement of intention. However, the Convention does not specify the requisite nature or degree of intention. This requirement appears to preclude accidental pollution. However, it is arguable that wilful can be construed to mean navigation without due regard to the risks of pollution.37 This approach is consonant with a growing body of practice allowing for preventative measures without actual pollution taking place. Neither does the Convention define the meaning of ‘serious’. However, pollution is 24 defined widely under Art. 1 (1)(4).38 Given that some degree of operational discharge is permitted under international law, then it may be inferred that pollution must be at least beyond this de minimis-threshold. It is likely that States will form different opinions on the degree of pollution required to render passage non-innocent. It will also be contextual since some waters may be more sensitive to pollution than others, or subject to prevailing high levels of pollution such that there is no tolerance for further pollution. A particular difficulty in this context is the extent to which coastal States can take action to 25 prevent future pollution. There are examples of States having refused vessels posing a pollution threat entry into coastal waters.39 However, there is insufficient practice to provide a conclusive interpretation of the Convention on this point or to give rise to a rule of custom generally permitting proactive measures against vessels. Despite this, there is some consensus that vessels in a condition so poor as to be likely to cause serious pollution cannot exercise a right of innocent passage.40 This still requires some balancing of the interests of the ship and port/coastal State. In order to reconcile the conflicting interests of coastal States and vessels in distress, the International Maritime Organisation has adopted guidelines on places of refuge which seek to facilitate and structure decision-making about granting stricken vessels access to sheltered waters.41

12. ‘fishing activities’ Vessels may not engage in ‘any fishing activities’. The use of ‘any’ indicates a wide 26 approach to fishing. The approach of the EU is indicative of the potentially wide scope used in practice: ‘The definition of fishing activities includes searching for, catching, taking and harvesting fish as well as any activity in support of or preparation of these activities, including through the use of aircraft’42

It should be noted that coastal States may regulate fishing activities under Arts. 21 (1)(e) and 42 (2)(c), and so determine the meaning of fishing in relation to Art. 19 (2)(i).

13. ‘research or survey activities’ Vessels may not carry out ‘research or survey activities’. This is to be understood broadly 27 and includes hydrographical surveying, exploration for mineral resources and fisheries, investigation of underwater cultural heritage sites. This provision should be read in conjunction with Art. 245, which notes that coastal States have the exclusive right to regulate, 37

Marco Roscini, The Navigational Rights of Nuclear Ships, LJIL 15 (2002), 251, 258–259. See further Tanaka on Art. 1 MN 12–15. 39 Supreme Court of the Netherlands, Attican Unity, 7 February 1986, Schip en Schade No. 61 (1986); noted by Erik J. Molenaar/Harm M. Dotinga, The Netherlands, in: Erik Franckx (ed.) Vessel-source Pollution and Coastal State Jurisdiction (2001), 303, 311. 40 ILA Report (note 40), 53. 41 IMO, Guidelines on Places of Refuge For Ships in Need of Assistance, IMO Res.A.949(23) of 5 December 2003. 42 Commission Decision of 21 April 2016 on Notifying a Third Country of the Possibility of Being Identified as a Non-cooperating Third Country in Fighting Illegal, Unreported and Unregulated Fishing. C/2016/2255. OJ C 23.4.2016, 9–13. 38

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authorize and conduct marine scientific research in their territorial sea. 43 Art. 245 is broader than Art. 19 (2)(j), which is limited to research activities by vessels.

14. ‘interfering with any systems of communication’ 28

Vessels may not engage in any ‘any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State’. This provision should be read in conjunction with Art. 21 (1)(b) and (c), which provide for the regulation of navigational aids and facilities, and facilities and installation, and cables and pipelines, respectively.

15. ‘other activities not having a direct bearing on passage’ 29

Vessels may not engage in ‘any other activity not having a direct bearing on passage’. This provision is open-ended and it is difficult to determine the meaning of Art. 19 (2)(l) with any precision. YANG suggests that it could include ‘dumping, bunkering, broadcasting, hanging out posters or placards against local religions or social systems, picking coral reefs, rebellions on board, and unwarranted stopping and anchoring other than as provided for in Art. 18 (2)’.44 To this list one might add vessels engaged in environmental protest at sea45 and acts of maritime violence, such as armed robbery against other vessels or vessels hijacking. However, many such activities appear to fall under the foregoing provisions or Art. 27 concerning criminal jurisdiction. All that can be said with certainty is that this provision reinforces the requirement that there be some positive act that renders passage non-innocent. It may also afford coastal States some measure of discretion in determining whether an act is noninnocent. However, this must be read in light of Art. 19 (1) and is further subject to the duty to act in good faith and not amount to an abuse of right as required by under Art. 300.

Article 20 Submarines and other underwater vehicles In the territorial sea, submarines and other underwater vehicles are required to navigate on the surface and to show their flag. Bibliography: Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); Jane G. Dalton, Future Navies: Present Issues, Naval War College Review 59 (2006), 17–39; Ingrid Delupis, Foreign Warships and Immunity for Espionage, AJIL 78 (1984), 53–75; 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, ICLQ 8 (1959), 73–121; David Froman, Uncharted Waters: Non-Innocent Passage of Warships in the Territorial Sea, San DiegoLRev 21 (1983), 625–689; Natalie Klein, Maritime Security and the Law of the Sea (2011); Francis Ngantcha, The Right of Innocent Passage and the Evolution of the International Law of the Sea (1990); Myron Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Daniel P. O’Connell, The International Law of the Sea, vol. I (1982); Roma Sadurska, Foreign Submarines in Swedish Waters: The Erosion of an International Norm, YaleJIntL 10 (1984–1985), 34–58; Tullio Treves, Navigation, in: Rene´ J. Dupuy/Daniel Vignes (eds.), A Handbook on the New Law of the Sea, vol. II (1991), 833– 976 Documents: Conference for the Codification of International Law: Final Act, AJIL 24 (1930), Suppl. No. 3, 169– 191; ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4–12 Cases: R. v Goodwin [2006] 1 Lloyd’s Rep. 432 (UK) 43

See Huh/Nishimoto on Art. 245. Yang (note 1), 167. 45 Glen Plant, International Law and Direct Action Protests at Sea: Twenty Years on, NYIL 33 (2002) 75, 91– 93. 44

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Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘Submarines and other underwater vehicles’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Submerged Passage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Breach of Art. 20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 6 6 7 8

I. Purpose and Function Art. 20 establishes specific requirements for the navigation of submarines and underwater 1 vehicles through the territorial sea of third States in peacetime. It requires such vehicles to navigate on the surface and show their flags while exercising their right of innocent passage. The rule balances navigational interests with the safety and security concerns of coastal States. As submarines are intended to navigate by stealth and underwater conduct is difficult to assess, the provision aims to ensure surface passage and thereby avoid suspicion or inference of non-innocence.

II. Historical Background The development of submarines as an important component of naval forces in the early twentieth century presented a challenge to rules on passage in territorial waters, since such rules were naturally developed in respect of sailing vessels. The expectation was that submarines should navigate on the surface when entering the territorial waters of third States.1 Thus Art. 12 of the Final Act of the Hague Conference for the Codification of International Law stated that ‘submarine shall navigate on the surface’. 2 This provision was incorporated into the International Law Commission (ILC) draft articles on the law of the sea in 1956.3 The provision was included in Art. 15 on the definition of innocent passage rather than in articles dealing with warships, and was intended to ensure applicability to commercial submarines, if they were introduced. Art. 14 (6) of the Convention on the Territorial Sea and Contiguous Zone (CTSCZ) incorporated the ILC provision, adding the requirement that submarines must also ‘show their flag’. Art. 20 is drawn directly from Art. 14 (6) CTSCZ. During the negotiation of the 1982 Convention, there was opportunity to reconsider the scope and content of the conventional rule for the submerged passage of submarines. In the Second Committee, the US stated that since submarines are designed to travel submerged, for reasons of safety this was the manner in which they should exercise their right of innocent passage. The majority of States refuted this suggestion. 4 At the 1973 Sea-Bed Committee, a proposal by eight States added a reference to ‘other underwater vehicles’.5 This was retained in subsequent revisions and into the final text. A number of States suggested the inclusion of explicit provisions emphasizing the coastal State

1 Francis Ngantcha, The Right of Innocent Passage and the Evolution of the International Law of the Sea (1990), 153. 2 Conference for the Codification of International Law: Final Act, AJIL 24 (1930), Suppl. No. 3, 169, 187; for non-military vessels, Art. 4 introduced a similar requirement. 3 ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4, 5–6 (Art. 15). 4 Ngantcha (note 1), 153–154. 5 Sea-Bed Committee, Cyprus et al.: Draft Articles on Navigation through the Territorial Sea Including Straits Used For International Navigation, UN Doc. A/AC.138/SC.II/L.18 (1973), GAOR 26th Sess. Suppl. 21 (A/9021III), 3, 5 (Art. 3 (5)).

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2

3

4

5

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discretion concerning the mode of passage of submarine.6 Ultimately, these were not included since the coastal State can always waive this requirement. Two further proposals, neither of which was ultimately included, suggested an explicit link between surface navigation and innocent passage.7 This indicates a high degree of consensus about the core content of the Art. 20.

III. Elements 1. ‘Submarines and other underwater vehicles’ 6

In practical terms, Art. 20 is mainly relevant to military vessels because, for the present time, it is only such vehicles that are used in general navigation. In principle, Art. 20 also applies to commercially operated submersible craft. However, this has not been an issue in practice for two reasons. First, at the present time, such commercial submersibles are not generally capable of, or intended for use in ‘passage’ or navigation; they are normally limited to use in operations such as exploration, research, sub-sea repair activities and tourism. 8 This means their actual use falls out with the scope of innocent passage. Accordingly, they would be subject to coastal State regulation in the territorial sea since they are engaged in activities coming within the scope of Art. 21. Secondly, many such submersibles are tethered by cable to, and operated from, a mother ship. Thus they do not constitute a separate entity from the mother ship subject to discreet regulation. They would be regulated as part of the mother ship. This situation may change. There is increasing use of a range of untethered autonomous unmanned underwater vehicles by both military and private operators. To the extent that such vehicles are truly independent and capable of navigating, these craft should be treated as any other ship for the purposes of innocent passage.9 Given the aim of Art. 20 to ensure surface passage and avoid inferences of non-innocent activity, such craft will be covered by Art. 20.

2. Submerged Passage 7

The rule requiring surface passage is clear and long-established, although not always observed in practice.10 This means a key issue in practice is how to respond to vessels engaged in submerged passage. The English language text uses the phrase ‘are required’ to describe the emerged conduct of submarines, rather than the usual term ‘shall’. N ORDQUIST et al. suggest that this leaves open the possibility that the coastal State may decide to waive this requirement.11 This seems consistent with the coastal State prerogative to determine that specific vessels are not engaged in unsafe or prejudicial conduct in the territorial sea.

3. Breach of Art. 20 8

Neither Art. 20 nor any other provision specifically deals with the consequences of a breach of the requirement of surface passage. Assuming that a submerged vessel can be 6 See Second Committee UNCLOS III, Fiji: Draft Articles Relating to Passage Through the Territorial Sea, UN Doc. A/CONF.62/C.2/L.19 (1974), OR III, 196, 197 (Art. 6 (1)); Second Committee UNCLOS III, United Kingdom: Draft Articles on the Territorial Sea and Straits, UN Doc. A/CONF.62/C.2/L.3 (1974), OR III, 183, 184 (Art. 20). 7 Second Committee UNCLOS III, United Arab Emirates: Article 16 (ISNT II) (1976, mimeo.), reproduced in: Renate Platzo¨der (ed.), Third United Nations Conference, vol. IV (1983), 268, 270 (Art. 18); Second Committee UNCLOS III, Group of Arab States: Article 17 (ISNT II) (1976, mimeo.) reproduced in: ibid., 270. 8 The Convention does not define navigation. Domestic cases have defined navigation as ‘ordered progression over the water from one place to another’. See English Court of Appeal: R. v. Goodwin [2006] 1 Lloyd’s Rep. 432 (UK). 9 Jane G. Dalton, Future Navies: Present Issues, Naval War College Review 59 (2006) 17, 24–25. 10 Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 90–91. 11 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 183.

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Art. 21

identified, there are two views on the matter. The first is that submerged passage renders the passage non-innocent, and, hence, a breach of Art. 17.12 The other view is that it does not necessarily render passage non-innocent, although it may do so depending upon the circumstances.13 FROMAN argues that a failure to include submerged passage in the list of non-innocent activities in Art. 19 indicates an intention not to make surface navigation a requirement of innocent passage.14 This cannot be conclusively determined from the travaux pre´paratoires, and a better approach would be to permit coastal States to have regard to this factor as a means of determining the character of passage. There is no conclusive State practice on this matter. 15 Of note were the repeated incursion 9 of submerged submarines into Swedish coastal waters between 1962 and 1982. 16 These incidents were subject to protest by Sweden, and, ultimately, the adoption of a domestic ordinance permitting the use of force against submerged submarines in the territorial sea. During the Harsfjarden Incident of 1982, Sweden used depth charges to force the submarines to leave.17 The absence of any protest against such measures suggests that States may be willing to accept a wider degree of latitude in responding to such threats to security. 18 It is to be noted that a distinction must be drawn between military and civilian vessels. In 10 the case of the former, coastal States may not interdict and detain submarines; they are generally limited to requiring it to leave the territorial sea. In the last resort, force may be permitted where such a request is refused.19

Article 21 Laws and regulations of the coastal State relating to innocent passage 1. The coastal State may adopt laws and regulations, in conformity with the provisions of this Convention and other rules of international law, relating to innocent passage through the territorial sea, in respect of all or any of the following: (a) the safety of navigation and the regulation of maritime traffic; (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; (g) marine scientific research and hydrographic surveys; (h) the prevention of infringement of the customs, fiscal, immigration or sanitary laws and regulations of the coastal State.

12 See the view of Spain, Second Committee UNCLOS III, 14th Meeting, UN Doc. A/CONF.62/C.2/SR.14 (1974), OR II, 135, 137 (para. 24); Ngantcha (note 1), 154. 13 See 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, ICLQ 8 (1959), 73, 98; Roma Sadurska, Foreign Submarines in Swedish Waters: The Erosion of an International Norm, YaleJIntL 10 (1984–1985), 34, 57; Tullio Treves, Navigation, in: Rene´ J. Dupuy/Daniel Vignes (eds.), A Handbook on the New Law of the Sea, vol. II (1991), 833, 928. 14 David Froman, Uncharted Waters: Non-Innocent Passage of Warships in the Territorial Sea, San DiegoLRev 21 (1983), 625, 663. 15 See Daniel P. O’Connell, The International Law of the Sea, vol. I (1982), 296–297. 16 Sadurska (note 13), 57. 17 Ibid., 37. 18 Natalie Klein, Maritime Security and the Law of the Sea (2011). 19 Ingrid Delupis, Foreign Warships and Immunity for Espionage, AJIL 78 (1984), 53, 73; O’Connell (note 15), 296–297; Treves (note 13), 928; see further Barnes on Art. 30 MN 7–8.

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2. 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. 3. The coastal State shall give due publicity to all such laws and regulations. 4. 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. Bibliography: Richard A. Barnes, Flag State, in: Donald R. Rothwell/Alex G. Oude Elferink/Karen N. Scott/Tim Stephens (eds.), The Oxford Handbook of the Law of the Sea (2015), 304–324; Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); Robert B. Clarke, Marine Pollution (2001); Kari Hakapa¨ a¨, Innocent Passage, MPEPIL, available at: http://www.mpepil.com; James Harrison, Making the Law of the Sea (2011); Lindy S. Johnson, Coastal State Regulation of International Shipping (2004); Douglas M. Johnston, The Environmental Law of the Sea (1981); George Kasoulides, Port State Control and Jurisdiction: Evolution of the Port State Control Regime (1993); Alan Khee-Jin Tan, Vessel Source Marine Pollution (2012); Erik J. Molenaar, Coastal State Jurisdiction over Vessel Source Pollution (1998); Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Peter Ottesen/Stephen Sparkes/Colin Trinder, Shipping Threats and Protection of the Great Barrier Reef Marine Park: The Role of the Particularly Sensitive Sea Area Concept, IJMCL 9 (1994), 507–522; Henrik Ringbom (ed.), Competing Norms in the Law of Marine Environmental Protection (1997); J. Ashley Roach/Robert W. Smith, Excessive Maritime Claims (3rd edn. 2012); Fabio Spadi, Navigation in Marine Protected Areas: National and International Law, ODIL 31 (2000), 285–302; Mario Valenzuela, IMO: Public International Law and Regulation, in: Douglas M. Johnson/Norman G. Letalik (eds.) The Law of the Sea and Ocean Industry: New Opportunities and Restraints (1984), 141–151; W. Van Reenan, Rules of Reference in the New Convention on the Law of the Sea in Particular Connection with the Pollution of the Sea, NYIL 12 (1981), 3–44; Budislav Vukas, Generally Accepted International Rules and Standards, in: Alfred H. A. Soons (ed.), Implementation of the Law of the Sea Convention through International Institutions, Proceedings of the Law of the Sea Institute 23 (1990), 405–421; Michael White, Navigational Rights in Sensitive Marine Environments: The Great Barrier Reef, in: Donald R. Rothwell/ Sam Bateman (eds.), Navigational Rights and Freedoms and the New Law of the Sea (2000), 230–262 Documents: ILA, Final Report of the Committee on Coastal State Jurisdiction Relating to Marine Pollution (2000), available at: http://www.ila-hq.org/download.cfm/docid/C52ADCAF-E925-4BD4-8159B588EFD02597; ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45; IMO, Implications of the United Nations Convention on the Law of the Sea for the International Maritime Organisation, IMO Doc. LEG/MISC/7 (2012); IMO, Implications of the United Nations Convention on the Law of the Sea for the International Maritime Organisation, IMO Doc LEG/MISC/1 (1986); IMO Res. MEPC/.45(30) of 16 November 1990; Report of the Second Committee, LN Doc. C.230.M.117.1930.V. (Annex I), reproduced in: Shabtai Rosenne (ed.), League of Nations Conference for the Codification of International Law 1930 (1975), 869 Cases: Sellers v. Maritime Safety Inspector [1999] 2 NZLR 44 (CA) (New Zealand) Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘laws and regulations, in conformity with the provisions of this Convention and other rules of international law, relating to innocent passage’ . . . . . . . . . . . . . . . . . . 2. ‘safety of navigation and the regulation of maritime traffic’ . . . . . . . . . . . . . . . . . . . . 3. ‘protection of navigational aids and facilities and other facilities or installations’ 4. ‘protection of cables and pipelines’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. ‘conservation of the living resources’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. ‘fisheries laws and regulations’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. ‘preservation of the environment’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8. ‘marine scientific research and hydrographic surveys’ . . . . . . . . . . . . . . . . . . . . . . . . . . 9. ‘customs, fiscal, immigration or sanitary laws and regulations’ . . . . . . . . . . . . . . . . . 10. ‘design, construction, manning and equipment of foreign ships’ and the use of ‘generally accepted international rules or standards’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11. ‘coastal State shall give due publicity to all such laws and regulations’ . . . . . . . . . 12. ‘Foreign ships […] shall comply with all such laws and regulations’ . . . . . . . . . . .

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1 3 7 7 9 12 13 14 16 17 18 19 20 23 24

Laws and regulations of the coastal State relating to innocent passage

1–4

Art. 21

I. Purpose and Function Art. 21 establishes the basis for the coastal State to adopt laws and regulations relating to 1 innocent passage in respect of a defined range of activities. Thus, the coastal State may only extend its laws to vessels engaged in innocent passage in respect of the following matters: safety of navigation; regulation of marine traffic; protection of navigational aids and facilities, cables and pipelines; conservation of living resources of the sea; prevention of infringement of fisheries regulations; preservation of the coastal State’s environment; prevention, reduction and control of pollution; marine scientific research and hydrographic surveys; and prevention of infringement of the State’s customs, fiscal, immigration or sanitary regulations. The list in Art. 21 parallels, but does not replicate, the activities listed in Art. 19 which render passage noninnocent.1 The main difference is the absence from Art. 21 of any provisions on hostile activities (i. e. those activities listed Art. 19 (2)(a)-(f)). Such activities are fundamentally inimical to the idea of innocent passage. Given the overlap in respect of other activities, there is link between compliance with coastal State laws and enjoyment of the right of innocent passage. Art. 21 seeks to balance coastal State interests with collective interests in maritime 2 navigation. In this respect, a key limitation on the coastal State’s competency to regulate is found in Art. 21 (2), which prohibits a coastal State from adopting laws which affect the ‘design, construction, manning or equipment of foreign vessels’ unless such laws conform to generally accepted international standards. Under Art. 21 (4) foreign ships must comply with all coastal State laws under the scope of this provision as well as ‘all generally accepted international regulations relating to the prevention of collisions at sea.’

II. Historical Background Historically, some degree of coastal State prescriptive jurisdiction was accepted over 3 territorial waters, although it was not subject to codification efforts until the 20th century. This appears to have resulted from the divergent views of States as to the nature of the territorial sea and whether it was a merely bundle of servitudes or an area within which coastal States enjoyed plenary jurisdiction.2 The 1930 Hague Codification Conference Draft contained a provision requiring foreign ships to comply with coastal State laws and regulations enacted in conformity with international usage.3 Art. 6 (1) of the 1930 Draft provided a list of activities to be regulated, although this was not definitive. It referred to laws relating to safety and navigation, pollution protection, fishing and other products of the sea. Whilst no specific limits were imposed on coastal States, Art. 4 (1) provided that no obstacles to passage were permitted, and Art. 6 (2) provided that any such rules must be nondiscriminatory between vessels of different nationalities. This basic approach was adopted by the International Law Commission during their work 4 on the law of the sea. In their commentary to draft Art. 18, a similar and illustrative list was provided, but with the addition of hydrographical surveys.4 However, this list of activities did not feature in what became Art. 17 of the 1958 Convention on the Territorial Sea and Contiguous Zone (CTSCZ), which simply read:

1

See generally Barnes on Art. 19. Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 91–94. 3 Report of the Second Committee, LN Doc. C.230.M.117.1930.V. (Annex I), reproduced in: Shabtai Rosenne (ed.), League of Nations Conference for the Codification of International Law 1930 (1975), 869. 4 ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12, 20 (Art. 18). 2

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Art. 21

5–6

Part II. Territorial sea and contiguous zone

‘Foreign ships exercising the right of innocent passage shall comply with the laws and regulations enacted by the coastal State in conformity with these articles and other rules of international law and in particular with such laws and regulations relating to transport and navigation.’

Art. 14 (5) of the CTSCZ further referred to coastal State laws preventing foreign fishing in the territorial sea. This resulted in some ambiguity as to the extent of any material restrictions on the legislative jurisdiction of coastal States. 5 This ambiguity was to be resolved at UNCLOS III. 5 The idea of listing topics for coastal State regulation was introduced by Cyprus, Greece, Indonesia Malaysia, Morocco, Philippines, Spain and Yemen at the 1973 session of the SeaBed Committee.6 A further proposal was submitted by Fiji, which included reference to the prevention of damage to pipelines and cables, and to customs, fiscal, immigration, quarantine and sanitary matters.7 Significantly, this list was intended to be exhaustive. At the Second Session of UNCLOS III in 1974, further attempts to clarify the powers of the coastal State were made, with a detailed draft Art. 18 being submitted by the United Kingdom. 8 Subsequent proposals make it clear that a definitive list was desirable. These listed coastal State powers but subjected them to a duty to give due publicity to all laws and regulations and limitations in respect of laws impinging upon matters relating to vessel design, construction, manning and equipment.9 These proposals were consolidated in Art. 18 of the Informal Single Negotiating Text, with more detailed reference to the designation of sea lanes and their operation being put into a separate provision.10 The draft was refined and accepted as the Revised Single Negotiating Text without any significant changes.11 Reference to non-discrimination between ships was submitted in some of the early proposals but was not accepted into the final provision.12 Non-discrimination now features in Arts. 24 (1)(b) and 25 (3). 6 NORDQUIST et al. note that although the text was not changed in substance after the Informal Composite Negotiating Text, there continued to be discussion of the article in respect of the passage of foreign warships, and, in particular, the right of coastal States to require prior notification or authorization as a condition of passage. 13 Despite considerable debate, this issue was not included within the draft or final texts. Notably, a number of States have since included declarations upon signing the Convention stating that they reserve the right to adopt measures regulating the innocent passage of warships in their territorial sea.14

5

Churchill/Lowe (note 2), 94. Sea-Bed Committee, Cyprus et al.: Draft Articles on Navigation Through the Territorial Sea Including Straits Used for International Navigation, UN Doc. A/AC.138/SC.II/L.18 (1973), GAOR 28th Sess., Suppl. 21 (A/9021III), 3, 5 (Art. 5). 7 Sea-Bed Committee, Fiji: Draft Articles Relating to Passage Through the Territorial Sea, UN Doc. AC.138/ SC.II/L.42 and Corr. 1 (1973), GAOR 28th Sess., Suppl. 21 (A/9021), 91, 94 (Art. 5). 8 Second Committee UNCLOS III, United Kingdom: Draft Articles on the Territorial Sea and Straits, UN Doc. A/CONF.62/C.2/L.3 (1974), OR III, 183, 184 (Art. 18). 9 Second Committee UNCLOS III, Fiji: Draft Articles Relating to Passage Through the Territorial Sea, UN Doc. A/CONF.62/C.2/L.19 (1974), OR III, 196, 197 (Art. 5); Second Committee UNCLOS III, Bulgaria et al: Draft Articles on the Territorial Sea, UN Doc. A/CONF.62/C.2/L.26 (1974), OR III, 203, 204 (Art. 20). 10 UNCLOS III, Informal Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/PART II (1975), OR IV, 152152, 155. 11 UNCLOS III, Revised Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/REV.1/PART II (1976), OR V, 151, 156. 12 UK Draft Articles (note 8), 184 (Art. 17). 13 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 195–199. 14 For example, see the declarations of Bangladesh (27 July 2001), China (7 June 1996), Ecuador (24 September 2012), Egypt (26 August 1983), Iran (10 December 1982), Malta (20 May 1993), Oman (17 August 1989), Yemen (21 July 1987), available at: http://www.un.org/depts/los/convention_agreements/convention_declarations.htm. Other States have expressly confirmed the right of innocent passage without prior notification: Italy (7 December 1984), Netherlands (28 June 1996), ibid. 6

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7–9

Art. 21

III. Elements 1. ‘laws and regulations, in conformity with the provisions of this Convention and other rules of international law, relating to innocent passage’ Art. 21 is specifically concerned with prescriptive jurisdiction and the right of coastal 7 States to legislate in respect of innocent passage. This is both a significant and delicate matter since it may intrude upon matters otherwise the exclusive concern of the flag State and thereby threaten the integrity of global navigation.15 Although the negotiations appear to indicate that the list of matters is exhaustive, thereby creating certainty as to the extent of Art. 21, some doubt remains as to the precise scope of the provision. Despite the categorical list of prescriptive matters, CHURCHILL & LOWE note that the existence of general enforcement jurisdiction presupposes the existence of a general legislative jurisdiction. 16 There are also inevitable textual ambiguities. Thus, JOHNSON observes that the use of the phrase ‘relating to innocent passage’ in the chapeau may be interpreted widely so as to go beyond actual passage and so raise the question whether a ship actually has to be in the territorial sea or not before a law or regulation applies to it.17 More specifically, she alludes to possibility of this permitting coastal States to require prior notification for the passage of warships. The point is supported when one contrasts the different language used in Art. 19 (2) and Art. 21 (1), with Art. 19 (2) referring to the phrase ‘in the territorial sea’ and Art. 21 (1) using the phrase ‘relating to innocent passage’. It could be argued that the ships’ location is incidental to the application of the law or regulation since it must simply relate to the conduct of innocent passage. However, this potentially extends the spatial scope of coastal States’ prescriptive jurisdiction and this reads too much into any textual ambiguity.18 Innocent passage is limited to the territorial sea, and so too must any regulation pertaining to it be limited. The use of the words ‘relating to’ is better understood as making it clear that the defined prescriptive authority in Art. 21 (1) is limited but only in respect of the regulation of foreign vessels engaged in innocent passage. Otherwise the coastal State’s prescriptive jurisdiction, for example as relating to mineral resources, remains unaffected, at least when it does not touch upon the right of passage. This approach seems to be implicit in the text of Art. 27, which assumes the existence of a general criminal jurisdiction. The relationship between Art. 21 and Art. 19, and in particular the question of whether or 8 not a breach of coastal State laws renders passage non-innocent is discussed in Art. 19 MN 11.

2. ‘safety of navigation and the regulation of maritime traffic’ Subject to Art. 21 (2), a coastal State may adopt laws and regulations in respect of safety of 9 navigation and the regulation of maritime traffic under Art. 21 (1)(a). The aim of this provision is to ensure that coastal States can take steps to ensure the safety of navigation in the territorial sea. Thus the right to exercise innocent passage cannot be used to the detriment of navigation. Although coastal States enjoy quite broad powers to regulate the operational conduct of vessels in the territorial sea, this tends to be done in accordance with international conventions, even when not concerned with design, construction, manning and equipment standards (CEDM). Safety of navigation is best achieved through coordinated measures. These can ensure a degree of uniformity, as well as the availability of accurate and comprehensible information to those engaged in navigation. Safety of navigation is addressed in a range of detailed international agreements including the International Convention for 15 Richard A. Barnes, Flag State, in: Donald R. Rothwell et al. (eds.), The Oxford Handbook of the Law of the Sea (2015), 304–324. 16 Churchill/Lowe (note 2), 95. 17 Lindy S Johnson, Coastal State Regulation of International Shipping (2004), 68–69. 18 Sellers v. Maritime Safety Inspector [1999] 2 NZLR 44 (CA), 54 (New Zealand).

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Art. 21

10–12

Part II. Territorial sea and contiguous zone

the Safety of Life at Sea (SOLAS 1948), the International Convention on Load Lines 1966 (Convention on Load Lines 1966), the Convention on the International Regulations for Preventing Collisions at Sea 1972 (COLREGs), International Convention on Standards of Training, Certification and Watchkeeping for Seafarers 1978, and Protocol of 1978, relating to the International Convention for the Prevention of Pollution from Ships (MARPOL 73/ 78). One should also consider the International Convention on Maritime Search and Rescue 1979. Safety matters also extend to the adoption of sea lanes and traffic schemes, with such being explicitly addressed in Art. 22. Thus, Art. 21 (1)(a) should be read in conjunction with Art. 22. 10 The precise extent to which coastal States can adopt safety measures is not detailed in the Convention. Any such measure must respect the balance between legitimate coastal concerns about safety and foreign vessels’ right of innocent passage. An interesting test of this arises in respect of pilotage, i.e. the requirement that ships take aboard a specially qualified navigator before proceeding through certain waters. Since 1991, Australia has operated a compulsory pilotage area in parts of its territorial sea within the Great Barrier Reef. 19 Notably, Australia sought and obtained International Maritime Organisation (IMO) approval for this measure, indicating that international recognition of such safety measures is necessary, or at least desirable.20 Under Finland’s Pilotage Act 2003, all vessels must, as a general rule, use a pilot when navigating fairways within Finnish territorial waters.21 Under this law, vessels carrying hazardous substances or materials harmful to the sea always require a pilot. The United States has sought to protest such measures, at least as regards their application to sovereign immune vessels or where they extend to international straits. 22 11 Art. 42 (1)(a) is the corresponding provision in respect of coastal State prescriptive jurisdiction over international straits. Although discreet provisions, they should be interpreted consistently given that they use exactly the same language. 23

3. ‘protection of navigational aids and facilities and other facilities or installations’ 12

Art. 21 (1)(b) extends coastal State jurisdiction to measures to protect navigational aids, facilities and other installations. It complements Art. 19 (2)(k), which renders acts that interfere with communications systems and facilities or installations as non-innocent. Like Art. 21 (1)(a), it is intended to ensure that passage is not exercised to the detriment of navigation. The term ‘navigational aids’ refers to equipment which is external to the ship, such as lighthouses, buoys, channel markers, and beacons. ‘Facilities’ and ‘installations’ are not defined, but presumably this includes any artificial islands or man-made structures erected within the territorial sea. Typically, these structures are engaged in offshore energy development and extraction. Offshore oil and gas installations tend to be relatively few. In contrast, offshore wind turbines are grouped in large numbers and so when subject to protective measures may adversely impact upon navigational within territorial waters. Coastal States are entitled to establish safety zones around installations consistent with Art. 60 and Art. 80. 19 See s. 59A-59M Great Barrier Reef Marine Park Act 1975 (Australia); s. 162–174 Navigation Act 2012 (Australia). 20 IMO Res. MEPC/.45(30) of 16 November 1990; see further, Michael White, Navigational Rights in Sensitive Marine Environments: The Great Barrier Reef, in: Donald R. Rothwell/Sam Bateman (eds.), Navigational Rights and Freedoms and the New Law of the Sea (2000) 230, 250; Peter Ottesen/Stephen Sparkes/Colin Trinder, Shipping Threats and Protection of the Great Barrier Reef Marine Park: The Role of the Particularly Sensitive Sea Area Concept, IJMCL 9 (1994), 507–522. 21 S. 5 Pilotage Act 2003 (940/2003) (Finland), available at: http://www.finlex.fi/en/laki/kaannokset/2003/ en20030940.pdf. 22 See J. Ashley Roach/Robert W. Smith, Excessive Maritime Claims (3rd edn. 2012), 231, 339. 23 See further Jia on Art. 42.

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Laws and regulations of the coastal State relating to innocent passage

13–17

Art. 21

4. ‘protection of cables and pipelines’ International law has long recognised the need to protect submarine cables and pipelines. 24 13 Art. 21 (1)(c) entitles coastal States to adopt measures to protect submarine pipelines and cables. This serves to both protect communication systems and prevent marine pollution from damaged pipelines. Measures envisaged under this provision include restrictions on anchoring when incidental to passage, as well as rules on liability and penalties for damage done to pipelines and cables.25

5. ‘conservation of the living resources’ Coastal States can adopt laws and regulations in order to conserve the living resources of 14 the sea. This is not simply limited to fisheries conservation, but extends to the conservation of any living resource. It thus provides the basis for potentially broader conservation measures, such as the adoption of protected sea areas, measures to conserve biological diversity, and the protection of individual species, such as marine mammals and seabirds. 26 Practice on this is presently mixed, but is indicative of a willingness to limit or regulate navigation. Thus, SPADI provides examples of States which limit or control navigation in certain areas on conservation grounds (Australia, Germany, Israel, Italy, Trinidad and Tobago, the United States, and Venezuela) and States which reserve the power to limit navigation (Norway, New Zealand).27 Potential measures include prohibitions on navigation, prior authorisation of navigation, restrictions on anchoring, and routing requirements around or through marine protected areas. The potential for such measures to be taken under Art. 21 is important, since Art. 22 is limited to sea lanes and traffic schemes where necessary for maritime safety. Presently, such measures tend mostly to limit fishing, rather than navigation per se. NORDQUIST et al. treat Art. 21 (1)(d) and Art. 21 (1)(e) together, noting that they link to 15 Part VII and provisions on the conservation and management of living resources. 28 They further note that these provisions form the starting point of a wider range of coastal State enforcement powers, including Art. 73 on EEZ enforcement measures, Art. 111 on hot pursuit, Art. 220 on the protection and preservation of the marine environment, and Art. 253 on marine scientific research.

6. ‘fisheries laws and regulations’ Art. 21 (1)(e) provides that the coastal State can adopt measures relating to passage in 16 respect of the prevention of infringements of fisheries laws and regulations. This includes not only restrictions on fishing activity, but measures to prevent vessels supporting illegal fishing activities, protecting fixed gear and marine fish farms. This provision reinforces Art. 19 (2)(i).

7. ‘preservation of the environment’ Art. 21 (1)(f) provides that the coastal State can adopt measures relating to passage for the 17 preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof. This complements Art. 19 (2)(f), although is drawn in broader terms, since it is not limited to wilful and serious pollution. It also links to Art. 192, which 24

See the International Convention for the Protection of Submarine Telegraph Cables 1884, CTS 163, 391. See for example, S. 3 of the United Kingdom Submarine Telegraph Cable Act 1885, available at: http:// www.legislation.gov.uk/ukpga/1885/49/pdfs/ukpga_18850049_en.pdf. 26 See Fabio Spadi, Navigation in Marine Protected Areas: National and International Law, ODIL 31 (2000), 285–302. 27 Ibid., 291–293. 28 Nordquist/Nandan/Rosenne (note 13), 200. 25

Barnes

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Art. 21

18–20

Part II. Territorial sea and contiguous zone

sets out the general obligation of States to protect and preserve the marine environment, and is developed in more detail in Part XII of the Convention. It may be observed that Art. 21 (1)(f) refers to the environment of the coastal State, so it is not limited to mere pollution of the marine environment. This provides the basis for controls on atmospheric pollution and measures to prevent, control or deal with land and coastal pollution resulting from activities in marine spaces. The detail of pollution control regimes is extensive and is covered in a number of expert commentaries.29

8. ‘marine scientific research and hydrographic surveys’ 18

Art. 21 (1)(g), which provides for laws and regulations on marine scientific research and hydrographic surveys, complements Art. 19 (2)(j). Art. 21 is potentially broader since it permits the regulation of vessels engaged in passage which may indirectly impact on marine scientific research. Art. 21 (1)(g) must also be read in conjunction with Part XIII, and in particular, Art. 246, which provides that the coastal State has the exclusive right to regulate, authorise and conduct marine scientific research in its territorial sea. Furthermore, such research shall be conducted only with the express consent of and under conditions set forth by the coastal State.30

9. ‘customs, fiscal, immigration or sanitary laws and regulations’ 19

Art. 21 (1)(h), which provides for measures to prevent the infringement of customs, fiscal, immigration or sanitary laws and regulations, complements Art. 19 (2)(g). Indeed, Art. 19 (2)(g) is contingent upon coastal States adopting and publicising such laws and regulations. 31

10. ‘design, construction, manning and equipment of foreign ships’ and the use of ‘generally accepted international rules or standards’ 20

A significant limitation imposed under Art. 21 (2) is that coastal States cannot adopt laws and regulations in respect of CEDM standards for foreign ships unless this is to give effect to generally accepted international rules and standards (‘GAIRS’).32 CHURCHILL & LOWE highlight that this limitation is intended to balance coastal and flag State interests. The limitation removes the risk of coastal States seeking to apply design, construction and other standards to which vessels cannot adjust during voyage.33 NORDQUIST et al. describe Art. 21 (2) as ‘categoric, and [it] serves to protect the integrity of global maritime navigation’. 34 The terms design, construction, manning and equipment assume their ordinary meaning and are not problematic. However, precisely which measures constitute ‘GAIRS’ is less straightforward. As HAKAPA¨A¨ highlights, this phrase is subject to interpretation.35 Neither UNCLOS itself nor the conference discussions shed any light as to its definition. Accordingly, a number of questions are left open including: Who may develop such standards? How are such standards 29 See Douglas M. Johnston, The Environmental Law of the Sea (1981); Henrik Ringbom (ed.), Competing Norms in the Law of Marine Environmental Protection (1997); Erik J. Molenaar, Coastal State Jurisdiction over Vessel Source Pollution (1998); Robert B. Clarke, Marine Pollution (2001); Alan Khee-Jin Tan, Vessel Source Marine Pollution (2012). 30 See further Huh/Nishimoto on Art. 246 MN 9 et seq. 31 See Barnes on Art. 19 MN 21. 32 A number of provisions of UNCLOS refer to ‘GAIRS’ or similar: Arts. 39 (2), 41 (3), 53 (8), 60 (3), (5) and (6), 94 (2)(a), 94 (5), 211 (2), (5) and (6)(c), 226 (1)(a), 271. The terminology varies but some degree of common analysis is possible, see: Budislav Vukas, Generally Accepted International Rules and Standards, in: Alfred H. A. Soons (ed.), Implementation of the Law of the Sea Convention through International Institutions, Proceedings of the Law of the Sea Institute 23 (1990), 405, 407; James Harrison, Making the Law of the Sea (2011), 166. 33 Churchill/Lowe (note 2), 94. 34 Nordquist/Nandan/Rosenne (note 13), 201. 35 Kari Hakapa ¨ a¨, Innocent Passage, MPEPIL, para. 17, available at: http://www.mpepil.com.

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21–22

Art. 21

to be identified? And, if such standards are to be found in treaties, then on what basis can they be applied against non-States parties to the relevant treaty? In general, it is States that are responsible for developing international rules and standards. 21 In the context of shipping standards this has been done through the IMO. Indeed, the original IMO study on the implications of UNCLOS for the IMO stated that for the purposes of Art. 21 (2), the IMO is ‘the only global institution with the mandate in this area and all existing rules and standards on the design, construction, equipment and manning of vessels have in fact been established in or by the IMO.’36

However, this unduly disregards the potential role the International Labour Organisation has to play in developing maritime labour standards, most recently through the Maritime Labour Convention 2006.37 Such standards play an important role in ensuring safety at sea by establishing appropriate working conditions on ships. The issue of identifying the normative content of the category of ‘GAIRS’ is more 22 problematic. A number of alternatives have been advanced in this respect. 38 One approach is to accept the mere adoption of a rule within a treaty as forming part of GAIRS. 39 However, this is problematic since it might be considered to bestow a broad legislative power upon international organisations. A second approach is to focus upon the entry into force of a particular instrument.40 Whilst more reflective of State practice, this does mean the threshold for general acceptance will vary according to each individual treaty’s conditions for entry into force. It also precludes rules and standards in instruments other than treaties, such as the original International Safety Management Code, from forming part of GAIRS. 41 A third approach is to look to the level of acceptance of a treaty. This is unproblematic for an instrument such as SOLAS which is widely ratified, but it is problematic when levels of participation drop. It also precludes non-treaty instruments from the category of GAIRS. A fourth approach is to use the same test that is used to determine if State practice is sufficiently widespread to constitute a rule of custom.42 However, arguably this sets too high a threshold for general acceptance and would render the purpose of ‘GAIRS’ moot because any qualifying rule would be binding by virtue of custom. The International Law Association examined this matter extensively in its Committee on Coastal State Jurisdiction Relating to Marine Pollution between 1992 and 2000. The Committee’s Final Report suggests that: ‘Generally accepted international rules and standards cannot be equated with customary law nor with legal instruments in force for the states concerned. Generally accepted international rules and standards, instead, are primarily based on state practice, attaching only secondary importance to the nature and status of the instrument containing the respective rule or standard.’ 43

36 IMO, Implications of the United Nations Convention on the Law of the Sea for the International Maritime Organisation, IMO Doc LEG/MISC/1 (1986), para 20; the IMO publication has been periodically updated, for the most recent version see: IMO, Implications of the United Nations Convention on the Law of the Sea for the International Maritime Organisation, IMO Doc. LEG/MISC/7 (2012). 37 Maritime Labour Convention, 23 February 2006, available at: http://www.ilo.org/wcmsp5/groups/public/ @ed_norm/@normes/documents/normativeinstrument/wcms_090250.pdf. 38 Harrison (note 32), 171–179. 39 Ibid., 174. 40 Mario Valenzuela, IMO: Public International Law and Regulation, in: Douglas M. Johnson/Norman G. Letalik (eds.) The Law of the Sea and Ocean Industry: New Opportunities and Restraints (1984), 145; see also Churchill/Lowe (note 2), 346. 41 ILA, Final Report of the Committee on Coastal State Jurisdiction Relating to Marine Pollution (2000), 37, available at: http://www.ila-hq.org/en/committees/index.cfm/cid/12; Molenaar (note 29), 142, who limits his study to those rules in instruments intended to be binding. 42 See George Kasoulides, Port State Control and Jurisdiction: Evolution of the Port State Control Regime (1993), 38 et seq.; also W. van Reenan, Rules of Reference in the new Convention on the Law of the Sea in Particular Connection with the Pollution of the Sea, NYIL 12 (1981), 3, 11. 43 ILA Report (note 41), 33.

Barnes

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Art. 22

Part II. Territorial sea and contiguous zone

The emphasis on State practice is correct, but this still leaves the precise threshold for determining which rules comprise ‘GAIRS’ uncertain. In light of this, it is suggested that the inclusion of instruments within the various regional memoranda of understanding on port State control could provide a useful proxy for determining the ‘general acceptance’ of States. In practice, the relevant CEDM standards are to be found in International Convention for the SOLAS 1948, the Load Lines Convention 1966 and protocol thereto, the STCW Convention, and MARPOL 73/78. It may also include the International Convention on the Control of Harmful Anti-fouling Systems on Ships 2001, to the extent it concerns equipment. Of course, such standards will continue to evolve with technology and in light of changing perceptions of how best to regulate ships.

11. ‘coastal State shall give due publicity to all such laws and regulations’ 23

According to Art. 21 (3), the coastal State must give due publicity to all applicable laws, and while no detail is given on what constitutes due publicity, the intention seems clear enough. At a minimum, relevant legislation and regulations must be publicly available. The IMO has noted that this requirement is effectively achieved if the relevant information reaches the States, authorities, entities and persons that are intended to be guided by the information. This can be facilitated by the IMO, which has held itself out to assist States in this respect. 44

12. ‘Foreign ships […] shall comply with all such laws and regulations’ All foreign ships shall comply with the laws and regulations of the coastal State, and generally accepted international regulations for the prevention of collisions at sea. The latter issue is covered by COLREGs. Thus all vessels, regardless of flag, engaged in innocent passage will be subject to a range of controls pertaining to safe speed, look outs, manoeuvring (overtaking and crossing), and navigational priorities between different types of vessel, as well as technical rules on displays, signals, sounds and communications between vessels. This provision should be read in conjunction with Art. 22 on sea lanes and traffic separation schemes. 25 Art. 21 (4) does not deal with the consequences of a failure to comply with coastal States laws and regulations. Accordingly, HAKAPA¨A¨ notes that this is left to the practice of individual States.45 Given that the decision to exercise of enforcement jurisdiction is within the discretion of States, and that most enforcement activities will occur within port, it is difficult to ascertain any general patterns to enforcement jurisdiction within the territorial sea. Account should be taken of Art. 25, which requires that coastal States do not hamper innocent passage and Art. 27 on the enforcement of criminal jurisdiction. In the special case of pollution, Art. 220 is relevant. Enforcement of coastal States laws against warships is limited under Art. 30. 24

Article 22 Sea lanes and traffic separation schemes in the territorial sea 1. The coastal State may, where necessary having regard to the safety of navigation, require foreign ships exercising the right of innocent passage through its territorial sea to use such sea lanes and traffic separation schemes as it may designate or prescribe for the regulation of the passage of ships. 2. In particular, tankers, nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances or materials may be required to confine their passage to such sea lanes. 44 45

208

Implications of UNCLOS for the IMO 2012 (note 36), 91–92. Hakapa¨a¨ (note 35), para 20.

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Art. 22

3. In the designation of sea lanes and the prescription of traffic separation schemes under this article, the coastal State shall take into account: (a) the recommendations of the competent international organization; (b) any channels customarily used for international navigation; (c) the special characteristics of particular ships and channels; and (d) the density of traffic. 4. The coastal State shall clearly indicate such sea lanes and traffic separation schemes on charts to which due publicity shall be given. Bibliography: David H. Anderson, Strait of Dover, MPEPIL, available at: http://www.mpepil.com.; Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); David B. Dixon, Transnational Shipment of Nuclear Material by Sea: Do Current Safeguards Provide Coastal States A Right to Deny Innocent Passage, J. Transnat’l L. & Pol’y 16 (2006), 73–99; Lindy S. Johnson, Coastal State Regulation of International Shipping (2004); Lawrence Marin, Oceanic Transportation of Radioactive Materials: The Conflict Between the Law of the Seas’ Right of Innocent Passage and Duty to the Marine Environment, Florida JIL 13 (2001), 361–378; Erik J. Molenaar, Coastal State Jurisdiction over Vessel Source Pollution (1998); Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Donald R. Rothwell, Sea Lanes, MPEPIL, available at: http://www.mpepil.com; Haijiang Yang, Jurisdiction of the Coastal State over Foreign Merchant Ships in Internal Waters and the Territorial Sea (2005) Documents: IMO, Ships’ Routeing (2015); IMO MSC, Report of the Maritime Safety Committee on its EightyFirst Session, IMO Doc. MSC 81/25 (2006); IMO MSC, Report of the Sub-Committee on Navigation, Communications and Search and Rescue IMO Doc. NCSR 1/28 (2014); IMO Res. A.572(14) of 20 November 1985; Union of Soviet Socialists Republics/United States: Joint Statement with Attached Uniform Interpretation of Rules of International Law Governing Innocent Passage, 23 September 1989, ILM 28 (1989), 1444–1447 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 1. ‘require foreign ships […] to use such sea lanes and traffic separation schemes’ 7 2. ‘ships carrying nuclear or other inherently dangerous or noxious substances or materials’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 3. ‘designation of sea lanes and prescription of traffic separation schemes’ . . . . . . . . 11 4. ‘coastal State shall clearly indicate such sea lanes and traffic separation schemes on charts to which due publicity shall be given’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

I. Purpose and Function Art. 22 is one of three key articles which provide coastal States with the authority to 1 regulate the manner in which foreign ships exercise their right of innocent passage. It empowers a coastal State, where necessary and having regard to navigational safety, to designate sea lanes and traffic separation schemes (TSS) for the purpose of regulating the innocent passage of vessels. This article should be read in conjunction with Art. 21 which provides that the coastal State may adopt laws and regulations relating to innocent passage and Art. 25 which allows the coastal State to take measures to prevent non-innocent passage. Art. 22 (2) is also linked to Art. 23, which confirms a right of innocent passage for nuclear powered ships and ships carrying nuclear and dangerous substances and materials, but subjects this to special conditions. Sea lanes and TSS are particularly important in straits where passage may be confined. TSS in international straits are addressed by more detailed rules in Art. 41.1 Although framed in terms of safety of navigation, TSS also play an important role in 2 preventing harm to the environment through measures which can help reduce the risk of hazardous materials entering the environment. Thus, tankers or nuclear-powered ships and 1

See further Jia on Art. 41 MN 6–14.

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ships carrying nuclear or dangerous substances are particularly highlighted as those which may be required to use sea lanes. However, all ships may be subject to this requirement. The use of TSS is likely to increase as competition for ocean space increases from new uses, such as energy development and conservation, limits the space available for shipping. 3 In designating sea lanes or prescribing TSS, the coastal State must take into consideration the recommendations of the competent international organization, namely the International Maritime Organisation (IMO), as well as usage and the navigational characteristics of ships and waterways. The existence of sea lanes and TSS must be publically available and their position clearly indicated on charts. The coastal State has responsibility to ensure this publicity. Compliance with navigational rules within a sea lane will depend on the relevant laws of the coastal State.

II. Historical Background Use of sea lanes dates back to as early as 1855 when lanes were charted in the North Atlantic and adopted by the US hydrographic office in order to limit the risk of collisions on the high seas.2 As these sea lanes operated only on the high seas, they were subject to the freedom of navigation and so there was no legal basis to compel vessels to navigate within the charted limits. The first International Convention for the Safety of Life at Sea (SOLAS) 1914 considered this matter. However, pursuant to Art. 13, it left the selection of routes across the North Atlantic to private shipping companies.3 Shipping companies were to give public notice of such routes and States would encourage other vessels to use such routes. The development of sea lanes and TSS was given impetus by significant increases in maritime traffic during the 20th century, and the increased risk of accidents particularly within coastal waters. The scope for coastal States to introduce mandatory traffic schemes was limited at the time because when the territorial sea only extended to between two and four nautical miles the significance of sea lanes and traffic schemes for global navigation was relatively small. However, this changed as coastal States acquired greater legal rights over coastal waters and demands for a wider territorial sea emerged. 5 The 1958 Convention of the Territorial Sea and the Contiguous Zone did not expressly address the issue of sea lanes, although it may be deemed to be implicit in its Art. 17 which permited coastal States to enact laws and regulations relating to transport and navigation. TSS first emerged on a localised basis. Between 1956 and 1960, there were 60 collisions in the Dover Straits.4 In response to concerns about safety of navigation, French, German and British navigation authorities convened in 1961 to explore the options for controlling traffic in the Dover Straits. The proposed traffic separation scheme was implemented in 1967. This was the first such formal scheme. Initially this was voluntary, but it was made mandatory in 1972 following a number of serious collisions in the channel. The following year, the Convention on the International Regulations for Preventing Collisions at Sea (COLREGs) were revised, with Rule 10 making compliance with all TSS mandatory.5 6 These developments were taken into account during the negotiations of the UNCLOS. A proposal by eight States at the 1973 Sea-Bed Committee session first introduced the idea of seas lanes and TSS.6 This proposal discussed maritime safety and traffic and, in particular, the establishment of sea lanes and TSS. Further proposals from Malta suggested a coastal 4

2

Donald R. Rothwell, Sea Lanes, MPEPIL, para. 2, available at: http://www.mpepil.com. Available at: http://www.imo.org/KnowledgeCentre/ReferencesAndArchives/HistoryofSOLAS/Documents/ SOLAS%201914.pdf. 4 David H. Anderson, Strait of Dover, MPEPIL, para. 8, available at: http://www.mpepil.com. 5 Convention on the International Regulations for Preventing Collisions at Sea 1972, 1050 UNTS 17. 6 Sea-Bed Committee, Cyprus et al.: Draft Articles on Navigation Through the Territorial Sea Including Straits Used for International Navigation, UN Doc. A/AC.138/SC.II/L.18 (1973), GAOR 28th Sess., Suppl. 21 (A/9021III), 3, 5–6 (Art. 6). 3

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7 Art.

22

State should have competence in establishing draft compulsory TSS, sea lanes and draft limits for navigation in certain areas.7 Fiji proposed a more detailed draft article which applied only to ships having special characteristics.8 Notably this also contained more controversial requirements for prior notification. Subsequent proposals advanced either general provisions for traffic schemes9 or discreet rules for traffic schemes and for potentially hazardous vessels and cargoes.10 The basic elements of what is now Art. 22 were formed at this stage and incorporated into the Informal Single Negotiating Text.11 A range of drafting changes were introduced during later sessions without significantly altering the text.

III. Elements 1. ‘require foreign ships […] to use such sea lanes and traffic separation schemes’ A coastal State is under no duty to establish sea lanes or TSS. It is a discretionary right. 7 The right of innocent passage continues whether or not a coastal States has designated a sea lanes or traffic separation scheme.12 There is some debate as to whether coastal States can introduce traffic schemes for reasons other than safety. 13 NORDQUIST et al. note that States may not invoke interests other than safety of navigation to instigate TSS. 14 This is supported by the reference to safety in Art. 22 (1) and the list of navigational factors in Art. 22 (3). However, this position has been overtaken by developments in marine environmental protection. JOHNSON suggests that the text of Art. 22 supports the designation of sea lanes for reasons of environmental protection.15 First it must be read in the context of Art. 21, which permits a broader range of regulatory controls over vessels in innocent passage. 16 Secondly, Art. 22 (2) clearly recognizes the importance of these routing measures for the protection of the environment because it specifically addresses vessels that pose a threat to the marine environment.17 Furthermore, Art. 211 (1) should be noted, which specifically refers to the adoption of routing systems for environmental reasons. Thus, a contextual reading of Art. 22 suggests that coastal States are empowered to adopt routing measures for environmental protection, and, as MOLENAAR surveys, the practice of States and the IMO confirm this.18 As long as innocent passage is not hampered, and that safeguards are in place through the use of the IMO procedures, there can be little reason to object to this approach. 7 Sea-Bed Committee, Malta: Preliminary Draft Articles on the Delimitation of Coastal State Jurisdiction in Ocean Space and on the Rights and Obligations of Costal States in the Area under their Jurisdiction, UN Doc. A/ AC.138/SC.II/L.28 (1973), GAOR 28th Sess., Suppl. 21 (A/9021-III), 35, 48 (Art. 32 (a)). 8 Sea-Bed Committee, Fiji: Draft Articles Relating to Passage Through the Territorial Sea, UN Doc. A/AC.138/ SC.II/L.42 and Corr. 1 (1973), GAOR 28th Sess., Suppl. 21 (A/9021-III), 91, 94–95 (Art. 5). 9 Second Committee UNCLOS III, United Kingdom: Draft Articles on the Territorial Sea and Straits, UN Doc. A/CONF.62/C.2/L.3 (1974), OR III, 183, 184 (Art. 18); Second Committee UNCLOS III, Bulgaria et al.: Draft Articles on the Territorial Sea, UN Doc. A/CONF.62/C.2/L.26 (1974), OR III, 203, 204 (Art. 21). 10 Second Committee UNCLOS III, Malaysia et al.: Draft Articles on Navigation Through the Territorial Sea, Including Straits Used for International Navigation, UN Doc. A/CONF.62/C.2/L.16 (1974), OR III, 192, 193 (Arts. 7 and 8 (3) and (4)); Second Committee UNCLOS III, Fiji: Draft Articles Relating to Passage Through the Territorial Sea, UN Doc. A/CONF.62/C.2/L.19 (1974), OR III, 196, 197 (Arts. 5 and 6). 11 UNCLOS III, Informal Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/PART II (1975), OR IV, 152, 155 (Art. 19). 12 See Union of Soviet Socialists Republics/United States: Joint Statement with Attached Uniform Interpretation of Rules of International Law Governing Innocent Passage, 23 September 1989, ILM 28 (1989), 1444, para. 5. 13 Erik J. Molenaar, Coastal State Jurisdiction over Vessel Source Pollution (1998), 203. 14 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 211–212. 15 Lindy S. Johnson, Coastal State Regulation of International Shipping (2004), 70. 16 Ibid. 17 Ibid., 71. 18 Molenaar (note 13), 226 et seq.

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Although Art. 22 only refers to sea lanes and TSS, it has since developed to include other measures, such as routing requirements, traffic flow schemes, two-way tracks, deep water routes, precautionary areas and areas to be avoided, since these are generally accepted as legitimate routing measures by the IMO.19 In the future, it seems likely that physically demarcated traffic schemes will increasingly be supplemented by E-navigation systems. 20 9 One final issue highlighted by ROTHWELL is that Art. 22 confers specific rights upon the coastal State with respect to foreign ships exercising the right of innocent passage, but it does not address navigational issues which may arise from the actions of vessels flying the flag of the coastal State.21 Clearly, traffic schemes would be ineffective if they excluded such ships. However, coastal States remain competent to regulate flag ships, and, in practice, they ensure that all shipping is required to comply with any navigational rules in the territorial sea. This is in line with Art. 24 (1)(b) which requires that the laws and regulations of the coastal State should not discriminate against foreign ships. 8

2. ‘ships carrying nuclear or other inherently dangerous or noxious substances or materials’ 10

Art. 22 (2) strengthens the authority of coastal States to require certain types of vessel to confine their passage to sea lanes. This recognizes the risks to the coastal State inherent in the passage of specific types of ship or ships with hazardous cargoes. The use of the term ‘in particular’ means that a mandatory requirement to use sea lanes or TSS is not confined to those ships with special characteristics. Although Art. 22 seeks to balance navigation with security, it may be questioned whether confining vessels to sea lanes provides adequate security to coastal States, especially if hazardous cargoes are shipped in secrecy. In this vein, VAN DYKE points out the violations of international environmental law arising from the voyage of the AKATSUKI MARU, a vessel carrying large quantities of reprocessed nuclear waste, in 1992.22 MARIN suggests that the protective measures in Art. 22 may fail if inadequate safety precautions are taken on the part of those shipping the radioactive materials. 23 Further problems may arise from errors or forgery of a shipment’s documentation, meaning that proper consideration cannot be given to safety considerations. 24 However, such vessels may be subject to more stringent requirements for passage under Art. 23, and general international law.25 The passage of such ships raises the question of prior notification, since it is arguable that a coastal State will be unable to exercise its rights unless it is aware that such vessels are to navigate the territorial sea.26

3. ‘designation of sea lanes and prescription of traffic separation schemes’ 11

The coastal State does not enjoy an unqualified right to introduce sea lanes or TSS. Art. 22 (3) requires it to take into account a range of factors: the recommendations of the competent international organization; any channels customarily used for navigation; special character19

IMO Res. A.572(14) of 20 November 1985. See IMO MSC, Report of the Maritime Safety Committee on its Eighty-First Session, IMO Doc. MSC 81/25 (2006), paras. 23.34–34.37. The Maritime Safety Committee Sub-committee on Navigation, Communications and Search and Rescue is currently working on the development of an e-navigation strategy implementation plan. See IMO MSC, Report of the Sub-Committee on Navigation, Communications and Search and Rescue IMO Doc. NCSR 1/28 (2014), s. 9. 21 Rothwell (note 2), para 17. 22 Jon M. Van Dyke, Sea Shipment of Japanese Plutonium under International Law, ODIL 24 (1993), 399, 400– 407. 23 Lawrence Marin, Oceanic Transportation of Radioactive Materials: The Conflict Between the Law of the Seas’ Right of Innocent Passage and Duty to the Marine Environment, Florida JIL 13 (2001), 361–378. 24 David B. Dixon, Transnational Shipment of Nuclear Material by Sea: Do Current Safeguards Provide Coastal States A Right to Deny Innocent Passage, J. Transnat’l L. & Pol’y 16 (2006), 73, 80. 25 See generally Barnes on Art. 23. 26 Ibid., MN 5–8. 20

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Art. 23

istics of particular ships; and density of traffic. These are only factors that are to be taken into account and so are not determinative of whether any specific traffic scheme is permitted. The relevant international organisation is the IMO. In accordance with Ch. V, Regulation 12 10 (2) of SOLAS 1974 the IMO is recognized as the only international body for developing guidelines, criteria and regulations on an international level for ships’ routing systems. 27 It is widely recognized as enjoying an exclusive role in establishing and adopting measures at an international level concerning routing.28 Although the IMO measures should be considered, this does not mean the same as approval. The final decision to implement a traffic scheme remains with individual coastal States. Apart from UNCLOS, the most significant conventions relevant to traffic schemes are 13 SOLAS and the COLREGs. Ch. V of SOLAS contains extensive rules on safety of navigation, including the use of routing systems (Regulation 10), ship reporting systems (Regulation 11) and vessel traffic services (Regulation 12). Rule 10 of the COLREGs deals with vessels navigating in or near a TSS. Inter alia, ships are required to proceed in the direction of traffic flow, keep clear of separation lines or zones, join traffic lanes at appropriate points or directions, and refrain from crossing traffic lanes.

4. ‘coastal State shall clearly indicate such sea lanes and traffic separation schemes on charts to which due publicity shall be given’ The effectiveness of traffic schemes is contingent on vessels and maritime authorities being 14 aware of the location and requirements of the scheme. Accordingly, coastal States are to clearly mark sea lanes and TSS on charts and to give due publicity to these. In practice, the IMO takes a leading role in coordinating and disseminating knowledge of traffic schemes. It publishes periodically a compilation of routing measures adopted by the IMO worldwide. 29 This contains descriptions, reference maps and coordinates for different traffic schemes. Such schemes include TSS, deep water routes, areas to be avoided, prohibited anchoring areas, other routing measures (such as traffic flows schemes), archipelagic sea lanes and mandatory ship reporting schemes.

Article 23 Foreign nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances 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. Bibliography: Kari Hakapa¨a¨/Erik Jaap Molenaar, Innocent Passage: Past and Present, Marine Policy 23 (1999), 131–145; Robert Nadelson, After MOX: The Contemporary Shipment of Radioactive Substances in the Law of the Sea, IJMCL 15 (2000), 193–244; Marco Roscini, The Navigation Rights of Nuclear Ships, LJIL 15 (2002), 251–265; Jon M. Van Dyke, The Legal Regime Governing Sea Transport of Ultrahazardous Radioactive Materials, ODIL 33 (2002), 77–108 Documents: IAEA, General Conference Resolution on Code of Practice on the International Transboundary Movement of Radioactive Waste, 21 September 1990, ILM 30 (1991), 556–564; ILC, Report of the International Law Commission: Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities, UN Doc. A/56/10 (2001), GAOR 53th Sess. Suppl. 10, 370–377; IMO, Implications of the United Nations Convention on 27 International Convention for the Safety of Life at Sea 1974, as amended. The original version available in 1184 UTS 277. Originally Chapter V, Regulation 8(b), this was amended in 2002 and now is Regulation 10 (2). 28 Nordquist/Nandan/Rosenne (note 14), 212. 29 IMO, Ships’ Routeing (2015).

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the Law of the Sea for the IMO, IMO Doc. LEG/MISC.7 (2012); Union of Soviet Socialist Republics/United States of America: Joint Statement with Attached Uniform Interpretation of Rules of International Law Governing Innocent Passage, 23 September 1989, ILM 28 (1989), 1444–1447 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Prior Consent or Notification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. ‘precautionary measures established […] by international agreements’ . . . . . . . . 5. Breach of Art. 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 3 3 4 5 9 11

I. Purpose and Function 1

The carriage of nuclear and other hazardous substances present particular risks to marine and coastal environments. A range of international agreements have been concluded to address such risks. The purpose of Art. 23 is not to limit passage per se, but to ensure that hazardous activities are properly controlled in line with such standards as may be adopted by the international community. Art. 23 confirms the right of innocent passage of nuclear powered ships and ships carrying nuclear material or other dangerous substances. It subjects passage to the requirement that such vessels are properly documented and observe special precautionary measures as are established under international agreements. Art. 23 should be read in conjunction with Art. 22 (2) which permits coastal States to limit the passage of such vessels to designated sea lanes. The reference to international agreements indicates that coastal States cannot unilaterally regulate such vessels beyond any such general controls permitted under Arts. 21, 25 and 211 (4).

II. Historical Background 2

The regulation of nuclear vessels within the territorial sea was not addressed in the 1958 Convention on the Territorial Sea and Contiguous Zone. As such, Art. 23 was the product of negotiations at UNCLOS III. A proposal by Fiji at the 1973 session of the Sea-Bed Committee and two subsequent proposals at the Second Session of UNCLOS III in 1974 advocated that ships with specific characteristics, including nuclear-powered ships or ships carrying nuclear materials should be required to give prior notification of their passage to the coastal State.1 This was not accepted for inclusion within the Convention but reflected a concern of many States about the risk of transit of hazardous materials. The requirement for vessels to observe precautionary measures originated in a proposal by Bulgaria, the German Democratic Republic, Poland and the USSR.2 Despite not being based in any existing conventional provision, this proposal was carried into the final text, subject only to drafting modifications. 1 Sea-Bed Committee, Fiji: Draft Articles Relating to Passage through the Territorial Sea, UN Doc. A/AC.138/ SC.II/L.42 and Corr. 1 (1973) reproduced in: GAOR 28th Sess., Suppl. 21 (A/9021-III), 91, 95 (Art. 6 (2)), was replaced by Second Committee UNCLOS III, Fiji: Draft Articles Relating to Passage through the Territorial Sea, UN Doc. A/CONF.62/C.2/L.19 (1974), OR III, 196, 197 (Art. 6 (2)); Second Committee UNCLOS III, Malaysia et al.: Draft Articles on Navigation through the Territorial Sea, Including Straits Used For International Navigation, UN Doc. A/CONF.62/C.2/L.16 (1974), OR III, 192, 193 (Art. 8 (1) and (2)). 2 Second Committee UNCLOS III, Bulgaria et al.: Draft Articles on the Territorial Sea, UN Doc. A/CONF.62/ C.2/L.26 (1974), OR III, 203 (Art. 17 (1)).

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III. Elements 1. ‘nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances’ Art. 23 does not define every type of vessel subject to special measures, or the range of 3 hazardous goods that engage special measures for carrying vessels. Hence its application may be wide. Nuclear powered vessels are normally military vessels or used by States as icebreakers. Private commercial vessels are normally engaged in the carriage of nuclear and other hazardous material. The range of such dangerous or noxious material is defined and regulated in other agreements, as noted further below.

2. Compliance It is the flag State’s duty to ensure that any such vessel flying its flag complies with the 4 requirements of Art. 23. This is in conformity with Art. 94 concerning the duties of flag States.3

3. Prior Consent or Notification Art. 23 explicitly acknowledges the right of innocent passage of nuclear vessels through the 5 territorial sea. It does not include a positive provision permitting countries to require prior notification or consent. However, this issue is a serious point of contention within the international community, with a number of States having adopted domestic laws requiring this and a number of other States protesting such measures. 4 The joint declaration by the US and the Soviet Union on 23 September 1989 supports the 6 view that there is no requirement of prior notification or authorization for passage through the territorial sea.5 However, a number of States require vessels carrying dangerous or polluting substances to provide prior notification.6 Surveys of State practice indicate divergent views on the requirements for the passage of such vessels. 7 As such, it is not possible to conclude that any consistent interpretation of Art. 23 exists or that a general rule of customary international law has emerged. Whilst a prohibition of authorization for passage is contrary to plain meaning of Art. 23 and Art. 24 (1),8 since this could impede or hamper innocent passage, it is arguable that a requirement for notification may be compatible with Art. 23, for the reasons indicated below. Admittedly, proposals to include prior notification were rejected during the negotiation of UNCLOS.9 However, the case for such a requirement generally proceeds on the basis of developments since its adoption. 10 There are a number of related international instruments which include an obligation of 7 prior notification. This could constitute an inter se limitation of the right in Art. 23. Thus Art. 6 (1) of both the 1991 Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa11 and the 1989 Basel Convention on the Control of Transboundary Movements of 3

See Guilfoyle on Art. 94 MN 5–6. Marco Roscini, The Navigation Rights of Nuclear Ships, LJIL 15 (2002), 251. 5 Union of Soviet Socialists Republics/United States: Joint Statement with Attached Uniform Interpretation of Rules of International Law Governing Innocent Passage, 23 September 1989, ILM 28 (1989), 1444 et seq. 6 Kari Hakapa ¨ a¨/Erik Jaap Molenaar, Innocent Passage: Past and Present, Marine Policy 23 (1999), 131, 142. 7 Ibid.; Also, Roscini (note 4), 251. 8 See Barnes on Art. 24 MN 6–9. 9 See Hakapa ¨ a¨/Molenaar (note 11), 144; Roscini (note 4), 253. 10 Jon M. Van Dyke, The Legal Regime Governing Sea Transport of Ultrahazardous Radioactive Materials, ODIL 33 (2002), 77, 85–87; Roscini (note 4), 251. 11 2101 UNTS, 177. 4

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Hazardous Waste and its Disposal require the exporting State to give transit States notice of any proposed movement of hazardous wastes.12 The transit State may refuse permission, subject transit to conditions or request information.13 A similar approach is taken in Art. 6 (4) of the Protocol on the Prevention of Pollution of the Mediterranean Sea by Transboundary Movements of Hazardous Wastes and their Disposal (the Izmir Protocol) 1996, 14 which requires prior notification for movements through the territorial sea. Following such notification, the transit State must inform the exporting state of any obligations relating to passage through its territorial sea. 8 A duty of prior notification is promoted in other instruments, including the International Atomic Energy Agency Code of Practice on the International Transboundary Movement of Radioactive Waste 1990,15 Principle 19 of the Rio Declaration, and the International Law Commission Draft Articles on the Prevention of Harm from Hazardous Activities. 16 It may be argued that Art. 23 has been surpassed by a general duty to notify States of activities posing a risk of transboundary harm. However, it remains debatable the extent to which these developments may constitute further conditions on the general right of passage. 17 First, the convention measures are limited to specific types of carriage, rather than having general application. Second, the fact that such agreement has to provide for notification implies not such general right to require this exists. Notably, both the United States and Germany sought to arrange bilateral agreements in respect of visits by nuclear powered vessels, the NS SAVANNAH and the OTTO HAHN, during the 1960s and 1970s. Although States demand and accede to requests for notification on an ad hoc basis, it is not clear that this is attended to other than on the basis of comity.

4. ‘precautionary measures established […] by international agreements’ Art. 23 states that relevant vessels must ‘observe special precautionary measures established for such ships by international agreements’. These international agreements are not specified within the Convention. Rather, the provision was intended to facilitate the development of suitable technical controls as appropriate. A study by the International Maritime Organization (IMO) has listed a number of instruments falling within the reference of Art. 23.18 This includes International Convention for the Safety of Life at Sea 1974 (SOLAS 1974),19 and, in particular, Ch. VIII in respect of nuclear ships and Ch. VII in respect of dangerous goods. Regulation VIII/10 of SOLAS 1974 states that a certificate shall be issued to a nuclear ship which complies with the requirements of the Convention. 10 Ships carrying dangerous cargo are subject to Ch. VII of SOLAS 1974, which regulates safety measures, including safe packaging and stowage, applicable to the carriage of dangerous goods by sea. This chapter is supplemented by several IMO codes, which have since been made mandatory: the International Code for the Construction and Equipment of Ships Carrying Dangerous Chemicals in Bulk (IBC Code); the International Code for the Construction and Equipment of Ships Carrying Liquefied Gases in Bulk (IGC Code); the 9

12

1673 UNTS, 57. See Art. 6 (4) of each convention. 14 Protocol on the Prevention of Pollution of the Mediterranean Sea by Transboundary Movements of Hazardous Wastes and their Disposal, 1 October 1996, available at: http://www.unep.ch/regionalseas/main/med/ medhaz.html. 15 IAEA, General Conference Resolution on Code of Practice on the International Transboundary Movement of Radioactive Waste, 21 September 1990, ILM 30 (1991), 556, 560. 16 ILC, Report of the International Law Commission: Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities, UN Doc. A/56/10 (2001), GAOR 53th Sess. Suppl. 10, 370–377. 17 Robert Nadelson, After MOX: The Contemporary Shipment of Radioactive Substances in the Law of the Sea, IJMCL 15 (2000), 193, 230. 18 IMO, Implications of the United Nations Convention on the Law of the Sea for the IMO, IMO Doc. LEG/ MISC.7 (2012), 33. 19 As amended. 13

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International Maritime Dangerous Goods Code (IMDG Code); the Code for the Safe Carriage of Irradiated Nuclear Fuel, Plutonium and High-Level Radioactive Wastes in Flasks on Board Ships (INF Code); and the International Maritime Solid Bulk Cargoes Code (IMSBC Code).20

5. Breach of Art. 23 A vessel which fails to comply with Art. 23 cannot be considered to enjoy the right of 11 innocent passage. This occurs when it fails to carry necessary documents or to meet the requirements set forth in relevant international agreements. Steps may be taken in accordance with Art. 25 in respect of civilian vessels. This is reinforced by reference to Art. 220 (2),21 which permits coastal States to inspect vessels and subject them to domestic legal proceedings in the event of a violation of domestic laws and regulations or applicable international rules and standards. Enforcement action against warships and other government vessels is subject to the limitations noted in Arts. 30 and 32.22

Article 24 Duties of the coastal State 1. The coastal State shall not hamper the innocent passage of foreign ships through the territorial sea except in accordance with this Convention. In particular, in the application of this Convention or of any laws or regulations adopted in conformity with this Convention, the coastal State shall not: (a) impose requirements on foreign ships which have the practical effect of denying or impairing the right of innocent passage; or (b) 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. 2. The coastal State shall give appropriate publicity to any danger to navigation, of which it has knowledge, within its territorial sea. Bibliography: Derek W. Bowett, The Law of the Sea (1967); Kari Hakapa¨ a¨/Erik J. Molenaar, Innocent Passage: Past and Present, Marine Policy 23 (1999), 131–145; Natalie Klein, Maritime Security and the Law of the Sea (2011); Myres S. McDougal/William T. Burke, The Public Order of the Oceans (1962); Erik J. Molenaar, Coastal State Jurisdiction Over Vessel Source Pollution (1998); Francis Ngantcha, The Right of Innocent Passage and the Evolution of the International Law of the Sea (1990); Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Donald R. Rothwell, Coastal State Sovereignty and Innocent Passage: The Voyage of the Lusitania Expresso, Marine Policy 16 (1992), 427–437; Brian Smith, Innocent Passage as a Rule of Decision: Navigation v Environmental Protection, Colum. J. Transnat’l L. 21 (1982), 49–102; Seline Trevisanut, The Principle of Non-Refoulement at Sea and the Effectiveness of Asylum Protection, MPYUNL 12 (2008), 205–246; Haijiang Yang, Jurisdiction of the Coastal State over Foreign Merchant Ships in Internal Waters and the Territorial Sea (2005) Documents: Denmark Ministry of Foreign Affairs, Press Release No 88/1992 (1992), reprinted in: ILR 105 (1997), 249–250; ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45; IMO, Study by the Secretariat of the IMO, Doc. LEG/MISC.7 (2012) Cases: ICJ, Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v. Albania), Merits, Judgment of 9 April 1949, ICJ Reports (1949), 4; ICJ, Passage through the Great Belt (Finland v. Denmark), Provisional Measures, Order of 29 July 1991, ICJ Reports (1991), 12; PCA, Case concerning Land Reclamation by Singapore in and Around the Straits of Johor (Malaysia v. Singapore), Decision of 1 September 2005, Settlement Agreement, RIAA vol. XXVII, 141 20 21 22

All available at: http://www.imo.org/. See Hamamoto on Art. 220 MN 5–8. See: Barnes on Art. 30 MN 7–8; Barnes on Art. 32 MN 8–10.

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Part II. Territorial sea and contiguous zone Contents

I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘shall not hamper the innocent passage’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘the coastal State shall not […] impose requirements […] which have the practical effect of denying or impairing the right of innocent passage’. . . . . . . . . 3. ‘the coastal State shall not […] discriminate in form or in fact’. . . . . . . . . . . . . . . . 4. ‘[t]he coastal State shall give appropriate publicity to any danger to navigation’

1 3 6 6 7 9 10

I. Purpose and Function Art. 24 is expressed in negative terms and establishes the duty of a coastal State not to hamper the innocent passage of foreign ships. This requirement applies to both prescriptive and enforcement measures taken by the coastal State and it needs to be read in conjunction with other provisions of the Convention, in particular Art. 21, which permits the coastal State to regulate the conduct of vessels engaged in innocent passage. Thus a balance is struck between the coastal State’s legislative competency and the maintenance of the right of innocent passage by preventing excessive regulatory claims by coastal States. 2 More specifically, the coastal State cannot impose requirements on foreign ships, which have the effect of denying or impairing passage. Neither can coastal States discriminate against foreign ships in their regulation of innocent passage. Lastly, the coastal State must provide appropriate publicity to any danger to navigation, of which it has knowledge within its territorial sea. Cumulatively, this provision indicates that coastal States are under a duty to ensure that factors within their knowledge and control do not negate the right of innocent passage. 1

II. Historical Background 3

Art. 24 is an expanded version of Art. 15 of the Convention on the Territorial Sea and the Contiguous Zone (CTSCZ) which, the International Law Commission noted, was based upon the ICJ’s decision in the Corfu Channel Case.1 Here the ICJ held that a minefield could not have been laid without the knowledge of the Albanian government. Accordingly, Albania as the coastal State was under a duty to notify shipping in general of the minefield’s existence. 2 The Court did not base its decision on practice or doctrinal opinion. Indeed, it was open to the Court to refer to the Final Act of the Hague Codification Conference 1930, which provided that a ‘coastal State may put no obstacles in the way of the innocent passage of foreign vessels in the territorial sea’.3 Instead, this duty to notify was attributed to three things: ‘[E]lementary considerations of humanity, even more exacting in peace than in war; the principle of the freedom of maritime communication; and every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States.’ 4

This approach is indicative of fundamental nature of the duty, as rooted in general principles of international law.

1 ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12, 19 (Art. 16). 2 ICJ, Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v. Albania), Merits, Judgment of 9 April 1949, ICJ Reports (1949), 4. 3 League of Nations, Draft Convention on the Territorial Sea, LN Doc. C.351.M.145.1930.V.14, 165. 4 Corfu Channel Case (note 2), 22.

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Art. 24

Art. 15 CTSCZ provides that:

4

‘1. The coastal State must not hamper innocent passage through the territorial sea. 2. The coastal State is required to give appropriate publicity to any dangers to navigation, of which it has knowledge, within the territorial sea.’

Earlier drafts provided that coastal States shall ensure respect for innocent passage and are under a duty not allow the sea to be used for acts contrary to the rights of other States. 5 However, this was omitted because it would go beyond existing international law and place too great a burden on coastal States. It might also be construed as incurring an absolute liability for failing to ensure passage.6 The core requirements of Art. 15 CTSCZ not to hamper navigation and to give publicity to 5 dangers to navigation remained largely unchanged during the negotiations at UNCLOS III. However, more detailed constraints on the way in which the former was to be exercised were developed in two respects: the introduction of a requirement of non-discrimination and the prohibition of ‘practical limits’ on passage. Records of the conference proceedings show that from the outset, States were keen to ensure that coastal States were under an explicit duty not to discriminate between ships flying the flags of particular States. 7 Then, at the second session of UNCLOS, the United Kingdom introduced a proposal that would prohibit the coastal State from imposing requirements on passage that would have the practical effect of denying or prejudicing passage.8 This established a clear link between the duties of the coastal State and its regulatory powers under what would become Art. 21. These two conditions were generally accepted and included within Part II of the Informal Single Negotiation Text. 9 At the fourth session, a proposal by Australia to insert the phrase ‘except in accordance with the provisions of the present Convention’ was designed to help reconcile the draft article with draft Art. 18 which expressly allowed for the coastal State to adopt laws that would place limits on navigation.10 Art. 23 of Part II of the Revised Single Negotiation Text incorporated these changes and was not subject to any significant changes prior to the adoption of the final text.

III. Elements 1. ‘shall not hamper the innocent passage’ Whilst the meaning of the term ‘deny’ is straightforward, the terms ‘impair’ and ‘hamper’ 6 are less so. MCDOUGAL/BURKE indicate that they refer to situations where impositions on passage are so stringent that passage becomes impossible or too burdensome to be practical. 11 SMITH offers a more nuanced approach that requires ‘hamper’ to be construed proportionately or reasonably, or, in other words, in a way which best accommodates the competing 5 UNCLOS I, Annexes Text of Articles 1 to 25 and 66 Adopted by the International Law Commission at Its Eight Session, UN Doc. A/CONF.13/39 (1958), OR III, 209, 210 (Art. 15 (2)). 6 UNCLOS I, United States of America: Proposal, UN Doc. A/CONF.13/C.1/L.38 (1958), OR III, 220 (Art. 16). 7 Sea-Bed Committee, Cyprus et al.: Draft Articles Relating to Passage through the Territorial Sea, UN Doc. A/ AC.138/SC.II/L.18 (1973), GAOR 26th Sess. Suppl. 21 (A/9021-III), 3; Sea-Bed Committee, Malta: Preliminary Draft Articles on the Delimitation of Coastal State Jurisdiction in Ocean Space and on the Rights and Obligations of Coastal States in the Area under Their Jurisdiction, UN Doc. A/AC.138/SC.II/L.28 (1973), GAOR 26th Sess. Suppl. 21 (A/9021-III), 35, 44 (Art. 21), 45–6 (Art. 26); Sea-Bed Committee, Fiji: Draft Articles Relating to Passage through the Territorial Sea, UN Doc. A/AC.138/SC.II/L.42 (1973), reproduced in: GAOR 28th Sess., Suppl. 21 (A/9021-III), 91, 92–93 (Art. 3). 8 Second Committee UNCLOS III, United Kingdom: Draft Articles on the Territorial Sea and Straits, UN Doc. A/CONF.62/C.2/L.3 (1974), OR III, 183, 184 (Art. 18(2)(b)). 9 UNCLOS III, Informal Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/PART II (1975), OR IV, 152, 156 (Art. 21). 10 Cf. Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 225. 11 Myres S. McDougal/William T. Burke, The Public Order of the Oceans (1962), 255.

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7–8

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interests of the coastal State and community.12 This is surely correct since Art. 24 seeks to balance coastal State legislative competence with the right of innocent passage. Without Art. 24, there is a risk that passage could be impaired or denied through the issue of apparently legitimate local laws. As such Art. 24 represents a concrete application of the doctrine of abuse of rights. As BOWETT observes, ‘where the coastal State manifests its sovereignty in a manner which goes beyond the necessities of protecting its real interests, and interferes with the legitimate interests of other States, this is an abuse of rights.’ 13 The application of this balance is considered by ROTHWELL in his analysis of the Lusitania Expresso Incident where the Indonesian government declared its territorial waters closed to a vessel that was on a voyage from Portugal to highlight human rights abuses in East Timor. 14 Indonesia sought to base its position on the vessel’s infringement of immigration laws, which provided that entry to East Timor for aliens was restricted to persons carrying permits. ROTHWELL highlights that while Indonesia was justified in implementing laws and regulations in relation to immigration under Art. 21, Art. 24 suggests that irrespective of the significant interest of coastal State in immigration matters, the implementation of such immigration laws must not have the effect of denying innocent passage. 15 Therefore vessels engaged in continuous and expeditious passage through the territorial sea of the coastal State without any intention of stopping at a port would not pose a threat to coastal State immigration laws and should therefore be permitted to proceed unhampered. 16 Conversely, vessels intending to proceed to port may be subject to controlling measures prior to arriving at port. These same issues are at stake in recent efforts to interdict vessels suspected of smuggling people of carrying irregular migrants.17 This is indicative of a need to weigh up the various interests in each case in light of all the relevant circumstances, a task which can be facilitated, according to MOLENAAR, using the concept of reasonableness.18

2. ‘the coastal State shall not […] impose requirements […] which have the practical effect of denying or impairing the right of innocent passage’ Art. 24 (1)(a) prohibits States from imposing requirements on foreign ships which have the practical effect of denying or impairing passage. Apart from prescriptive measures, this can result through the construction of devices, installations or bridges within the territorial sea. This tends to arise in straits or areas of limited navigation. Thus Finland objected to Denmark’s proposed bridge over the Great Belt,19 and the development only proceeded after Denmark made a payment of 94 million Kroner and the bridge was designed with a clearance of 65 meters.20 Similarly, Singapore and Malaysia reached an agreement to ensure Malaysian navigation rights were not adversely affected by Singapore’s land reclamation activities. 21 8 A particular concern in this context is the issue of whether or not coastal States can impose the requirement of prior consent or prior notification on foreign vessels intending to navigate 7

12 Brian Smith, Innocent Passage as a Rule of Decision: Navigation v Environmental Protection, Colum. J. Transnat’l L. 21 (1982), 49, 91–97. 13 Derek W. Bowett, The Law of the Sea (1967), 44. 14 Donald R. Rothwell, Coastal State Sovereignty and Innocent Passage: The Voyage of the Lusitania Expresso, Marine Policy 16 (1992), 427 et seq. 15 Ibid., 434. 16 Ibid. 17 Seline Trevisanut, The Principle of Non-Refoulement at Sea and the Effectiveness of Asylum Protection, MPYUNL 12 (2008) 205, 224. 18 Erik J. Molenaar, Coastal State Jurisdiction Over Vessel Source Pollution (1998), 202. 19 ICJ, Passage Through the Great Belt (Finland v. Denmark), Provisional Measures, Order of 29 July 1991, ICJ Reports (1991), 12: Memorial of the Government of Finland, para. 412, available at: http://www.icj-cij.org/docket/ files/86/6885.pdf. 20 Denmark Ministry of Foreign Affairs, Press Release No 88/1992 (1992), reprinted in: ILR 105 (1997), 249– 250. 21 PCA, Case Concerning Land Reclamation by Singapore in and Around the Straits of Johor (Malaysia v. Singapore), Decision of 1 September 2005, Settlement Agreement, RIAA vol. XXVII, 141–145.

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24

through the territorial sea.22 As HAKAPA¨A¨/MOLENAAR highlight, notwithstanding the lack of an express provision having this effect, a requirement of coastal State consent would imply the possibility of denial of passage.23 This would, however, be in conflict with the provision in Art. 24 (1) forbidding coastal States from imposing requirements on foreign ships that have the practical effect of denying or impairing the right of innocent passage.

3. ‘the coastal State shall not […] discriminate in form or in fact’ The duty not to discriminate covers both overt (legal) discrimination, and covert (factual) 9 discrimination.24 Thus, for example, it covers discrimination on the basis of the flag flown by the ship and discrimination on the basis of where a vessel has traded or intends to trade. The purpose of Art. 24 (1)(b) is to secure the right of innocent passage. As long as all vessels enjoy this right, there is nothing to stop coastal States granting some ships special navigational privileges within territorial waters.25 Although the language used in Art. 24 (1) suggests that the duty of non-discrimination only applies to foreign flagged vessels (‘foreign ships’), there seems to be no reason why coastal States own flag ships should not benefit from the protection of Art. 24, especially if such vessels appear to be discriminated against on the basis that they are trading with particular third States. This is reinforced by the later reference in Art. 24 (1)(b) to ‘any State’ when describing the targets of discrimination. Art. 24 does not preclude coastal States taking action against individual vessels under Art. 25. Finally, nothing in Art. 24 prevents a coastal State from taking action that is required to implement sanctions or embargoes against individual ships or flag States under Security Council Resolutions.26 This flows from the legal priority afforded to obligations arising under the Art. 103 of the United Nations Charter.

4. ‘[t]he coastal State shall give appropriate publicity to any danger to navigation’ The coastal State’s duty to give appropriate publicity to any danger to navigation, of which 10 it has knowledge, follows from the Corfu Channel Case.27 Accordingly, knowledge will be imputed to the coastal State where the facts support this. The duty does not require that positive steps be taken to gather knowledge and report on dangers, or to dredge channels or implement other safety measures, unless this is necessary to deal with navigational hazards caused by the coastal State.28 As noted above, such a positive duty to take steps to ensure passage was rejected.29 The Virginia Commentaries highlight that what is ‘appropriate’ will depend on all 11 circumstances.30 They also note that there is a difference between ‘appropriate’ publicity under Art. 19 and ‘due publicity’ under Arts. 16, 75, 84 and 134, although they do not indicate the nature of the distinction.31 YANG also notes this difference, and suggests that ‘appropriate’ may entail a lower degree of responsibility.32 This seems correct since the other articles on publicity relate to regulatory factors within the control of the States, 33 whereas 22

See Barnes on Art. 23 MN 5–8 and on Art. 30 MN 9. Kari Hakapa¨a¨/Erik J. Molenaar, Innocent Passage: Past and Present, Marine Policy 23 (1999), 131, 138. Haijiang Yang, Jurisdiction of the Coastal State over Foreign Merchant Ships in Internal Waters and the Territorial Sea (2005), 182. 25 Cf. for example EC Regulation No 3577/92/EEC of 7 December 1992, OJ 1992 L 364, 7. 26 Natalie Klein, Maritime Security and the Law of the Sea (2011), 276–285. 27 Corfu Channel Case (note 2), 22. 28 Francis Ngantcha, The Right of Innocent Passage and the Evolution of the International Law of the Sea (1990), 171–172. 29 See supra, MN 4. 30 Nordquist/Nandan/Rosenne (note 10), 227. 31 Ibid. 32 Yang (note 24), 183. 33 For reference to ‘due publicity’, see Barnes on Art. 21 MN 23. 23 24

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Art. 24 dangers can include exogenous factors. The means of publicising danger are not detailed in Art. 24. In practice this is done through ‘Notices to Mariners’ or similar publications. International publicity can also be facilitated through the International Maritime Organisation (IMO). As its Secretariat has pointed out: ‘it appears clear that the required publicity objective will be effectively achieved only if the information in question reaches the States, authorities, entities and persons that are intended to be guided by the information. IMO maintains the most direct and continuing contact with the authorities of States concerned with safety of navigation and the prevention, reduction and control of pollution of the marine environment from vessels. Accordingly, the purpose of the publicity is likely to be served by some IMO involvement.’34

Article 25 Rights of protection of the coastal State 1. The coastal State may take the necessary steps in its territorial sea to prevent passage which is not innocent. 2. In the case of ships proceeding to internal waters or a call at a port facility outside internal waters, the coastal State also 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. 3. The coastal State may, without discrimination in form or in fact among foreign ships, suspend temporarily in specified areas of its territorial sea the innocent passage of foreign ships if such suspension is essential for the protection of its security, including weapons exercises. Such suspension shall take effect only after having been duly published. Bibliography: Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (2009); Alan V. Lowe, The Right of Entry into Maritime Ports in International Law, San DiegoLRev 17 (1977), 597–622; Erik J. Molenaar, Coastal State Jurisdiction over Vessel Source Pollution (1998); Erik J. Molenaar/Harm M. Dotinga, Case Study of the Netherlands, in: Erik Franckx (ed.), Vessel Source Pollution and Coastal State Jurisdiction (2001), 303–321; Francis Ngantcha, The Right of Innocent Passage and the Evolution of the International Law of the Sea (1990); Myron H. Nordquist, International Law Governing Places of Refuge for Tankers Threatening Pollution of Coastal Environment, in: Tafsir Malik Ndiaye/Ru¨diger Wolfrum (eds.), Law of the Sea: Environmental Law and Settlement of Disputes (2007), 497–517; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Daniel P. O’Connell, The International Law of the Sea, vol. II (1982); Donald R. Rothwell, Innocent Passage in the Territorial Sea: The UNCLOS Regime and Asia Pacific State Practice, in: Donald R. Rothwell/Sam Bateman (eds.), Navigational Rights and Freedoms in the New Law of the Sea (2000), 74–93; Ivan A. Shearer, Problems of Law Enforcement and Jurisdiction Against Delinquent Vessels, ICLQ 35 (1986) 320–343; Haijiang Yang, Jurisdiction of the Coastal State over Foreign Merchant Ships in Internal Waters and the Territorial Sea (2005) Documents: ILA, Final Report of the Committee on Coastal State Jurisdiction Relating to Marine Pollution (2000); ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/ 3159 (1956), GAOR 11th Sess. Suppl. 9, 4–12; IMO, Guidelines on Places of Refuge for Ships in Need of Assistance, IMO Res. A.949(23) of 5 December 2003; League of Nations, Draft Articles on the Legal Status of the Territorial Sea, Report of the Second Committee, LN Doc. C.230.M117.1930.V.7 (1930) Cases: ICJ, Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, Judgment of 27 June 1986, ICJ Reports (1986), 14; ITLOS, The M/V ‘Saiga’ (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment of 1 July 1999, ITLOS Reports (1999), 10; Raad van State (Judicial Division of the Council of State of the Netherlands), Long Lin, 10 April 1995, Netherlands Juristen Blaad (1995), 199–200; Hoge Raad der Nederlanden (Supreme Court of the Netherlands), Attican Unity, 7 February 1986, Schip en Schade No. 61 (1986)

34

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1–3

Art. 25

Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 1. ‘take necessary steps […] to prevent passage which is not innocent’ . . . . . . . . . . . 5 2. ‘conditions to which admission […] to internal waters or such a call is subject’ 9 3. ‘suspend temporarily […] the innocent passage of foreign ships’ . . . . . . . . . . . . . . . 11

I. Purpose and Function The territorial sea forms part of the territory of the State, wherein it enjoys general 1 enforcement jurisdiction. This is limited in so far as foreign vessels are engaged in innocent passage. Accordingly, Art. 25 establishes the circumstances in which the coastal States can take action to limit the right of innocent passage in order to protect its interests. First, there is a general right to take necessary steps to prevent non-innocent passage. Secondly, the coastal State may take action to prevent any breach of the conditions set by the coastal State for ships proceeding to internal waters or to a call at a port facility outside internal waters. Thirdly, it may suspend passage in specified areas for its security. This must be done without discrimination in form or in fact among foreign ships, and any such suspension will only take effect after being published.

II Historical Background States have long exercised some degree of enforcement jurisdiction in coastal waters. 2 However, the specific application of this in the context of innocent passage is linked to the emergence of that concept and its development during the 20th century. Although the possibility for a coastal State limiting or suspending innocent passage was not proposed at the Hague Codification Conference, Art. 5 of the Hague Codification Draft 1930 provided that: ‘The right of passage does not prevent the coastal State from taking all necessary steps to protect itself in the territorial sea against any act prejudicial to the security, public policy or fiscal interests of the State.’1

This influenced the work of the International Law Commission in codifying the law of the 3 sea between 1949 and 1956. Draft Art. 17 (1) (later Art. 16 (1) of the Convention on the Territorial Sea and Contiguous Zone (CTSCZ)) provided that: ‘The coastal State may take the necessary steps in its territorial sea to protect itself against any act prejudicial to its security or to such other of its interests as it is authorized to protect under the present rules and other rules of international law.’2

Notably, the reference to public policy in the 1930 Draft was dropped because this was considered to be imprecise, and potentially open to abuse.3 Subsequent sections addressed conditions for entry into internal waters, temporary suspension of passage in specified areas on non-discriminatory basis and non-suspension of passage in straits used for international navigation.4 1 League of Nations, Draft Articles on the Legal Status of the Territorial Sea, Report of the Second Committee, LN Doc. C.230.M117.1930.V.7 (1930). 2 ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4, 6. 3 Francis Ngantcha, The Right of Innocent Passage and the Evolution of the International Law of the Sea (1990), 164. 4 ILC Law of the Sea Articles (note 2), 6–7.

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Art. 25 was based directly upon Art. 16 CTSCZ with some important changes to the wording of the text. First, the requirement of non-discrimination was strengthened with the addition of the words ‘in form or in fact among foreign ships’.5 Second, the provision on straits was removed and became subject to more detailed provisions in Part III of the Convention.6

III Elements 1. ‘take necessary steps […] to prevent passage which is not innocent’ It is generally accepted that merchant vessels engaged in non-innocent passage fall under the plenary jurisdiction of the coastal State.7 This means that the coastal State may have recourse to the full range of enforcement jurisdiction in order to deal with vessels engaged in non-innocent passage. Thus Art. 25 must be understood in light of Arts. 18 and 19 which define the legitimate scope of innocent passage. 8 Protective measures extend to both vessels engaged in non-innocent activities and vessels which are not in passage, e. g. hovering. In this regard, CHURCHILL & LOWE point out that there is no express provision setting out the right to exclude vessels not engaged in passage but that this right does exist under customary international law.9 Art. 25 only appears to deal with non-innocent passage. However, it may be relevant to enforcement measures against vessels in innocent passage, which for example threaten the marine environment.10 SHEARER notes the existence of general enforcement jurisdiction and suggests that coastal States may choose to prosecute vessels for offences or to expel them from the territorial sea.11 6 The way in which protective enforcement jurisdiction is exercised is at the discretion of coastal State, although it is subject to the requirement that only ‘necessary steps’ are taken. The Convention gives no indication of the meaning of ‘necessary steps’. MOLENAAR’S review of State practice shows this to be diverse and mostly silent on the extent or basis of enforcement jurisdiction, indicating that most States consider a definition of ‘necessary steps’ under domestic law to be superfluous.12 Thus, it is reasonable to assume that States enjoy a wide discretion on how they respond to non-innocent passage. This is reinforced, if somewhat controversially, by the practice of States preventing passage of vessels carrying potentially illegal migrants13 or vessels posing a risk to the maritime environment.14 7 Art. 25 does not establish a process to be followed by States when undertaking preventative action. A logical first step is for the State to verify the exact nature or character of the passage so that it is fully appraised of the situation. It can then decide what further necessary measures are appropriate. This may include requesting information from the ship about, inter alia, its flag status, route, and purpose. This is not expressly provided for in Art. 25, but is implicit within the general enforcement jurisdiction.15 Subsequent measures may include 5

5 Second Committee UNCLOS III, Malaysia et al.: Draft Articles on Navigation Through the Territorial Sea, Including Straits Used for International Navigation, UN Doc. A/CONF.62/C.2/L.16 (1974), OR III, 192 (Art. 4). 6 See further Jia on Art. 45 MN 14–16. 7 Erik J. Molenaar, Coastal State Jurisdiction over Vessel Source Pollution (1998), 249; Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 87; Haijiang Yang, Jurisdiction of the Coastal State over Foreign Merchant Ships in Internal Waters and the Territorial Sea (2005), 216. 8 See generally Barnes on Arts. 18 and 19. 9 Churchill/Lowe (note 7), 87. 10 ILA, Final Report of the Committee on Coastal State Jurisdiction Relating to Marine Pollution (2000), 497. 11 Ivan A. Shearer, Problems of Law Enforcement and Jurisdiction Against Delinquent Vessels, ICLQ 35 (1986) 320, 326–327. 12 Molenaar (note 7), 268 et seq. 13 See Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (2009), 199–204. 14 See Myron H. Nordquist, International Law Governing Places of Refuge for Tankers Threatening Pollution of Coastal Environment, in: Tafsir Malik Ndiaye/Ru¨diger Wolfrum (eds.), Law of the Sea. Environmental Law and Settlement of Disputes (2007), 497–517. 15 ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12, 19–20. (Art. 17).

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25

warning communications, warning shots, interdiction, boarding and inspection. Vessels may then be denied passage, diverted, expelled from the territorial sea or ordered to put into port. It also is open to coastal State authorities to detain and institute proceedings against vessels, although this will be contingent upon whether or not such vessels have committed an offence under coastal State laws.16 Ultimately, force may be used to secure the coastal State against threats posed by delinquent ships. Any protective steps must also conform to principles of general international law. In particular, efforts should be made to ensure human life is not endangered, and that forcible measures do not go beyond what is reasonable and necessary. 17 Art. 25 applies to all ships including warships, although its application is limited in respect 8 of the immunity enjoyed by warships.18

2. ‘conditions to which admission […] to internal waters or such a call is subject’ Coastal States enjoy an enhanced right to take necessary steps to prevent any breach of the 9 admission conditions for ships proceeding to internal waters or port facilities outside internal waters. This reflects the greater degree of interest States have in controlling entry into ports and internal waters. Ships may otherwise be engaged in innocent passage but still fail to meet conditions set for entry into internal waters or port facilities. Ships do not enjoy an automatic right to enter ports or internal waters.19 Accordingly, States may regulate such access as they see fit, except as noted below at MN 10. At a minimum, a refusal by a foreign flagged vessel to comply with such conditions is tantamount to a breach of Article 21. However, it is to be viewed more seriously because any attempt to enter a port or internal waters without permission may be regarded as a direct threat to the peace, good order and security of the coastal State. Thus, the enforcement measures under Art 25 (2) are described in the same terms as enforcement measures against non-innocent passage generally. On this basis, the conduct of foreign vessels attempting to breach port entry conditions is akin to vessels engaged in non-innocent passage. Conditions of entry to port may be regulated by international law, and in such cases 10 coastal States are required to comply with any such obligations incumbent upon them. Notably, international law has established common standards concerning port security measures under the International Ship and Port Facility Security Code. 20

3. ‘suspend temporarily […] the innocent passage of foreign ships’ According to Art. 25 (3), coastal States can suspend passage in areas where this is 11 necessary to protect its security, including for weapons practice. C HURCHILL & LOWE note temporary suspensions are commonly implemented in zones around naval dockyards. 21 Suspension of the right of innocent passage cannot be a blanket coverage of the entire territorial sea; it must be limited to the part of the sea which prompted the security closure in the first instance. 16 Hoge Raad der Nederlanden (Supreme Court of the Netherlands), Attican Unity, 7 February 1986, Schip en Schade No. 61 (1986); Raad van State (Judicial Division of the Council of State of the Netherlands), Long Lin, 10 April 1995, Netherlands Juristen Blaad (1995), 199–200; noted in Erik Jaap Molenaar/Harm M. Dotinga, Case Study of the Netherlands, in: Erik Franckx (ed.), Vessel Source Pollution and Coastal State Jurisdiction (2001), 303, 311. 17 ITLOS, The M/V ‘Saiga’ (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment of 1 July 1999, ITLOS Reports (1999), 10 (paras. 155–156); ILA Report (note 10), 454–457, 497. 18 See Barnes on Art. 32 MN 10–13. 19 ICJ, Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, Judgment of 27 June 1986, ICJ Reports (1986), 14, 111 (paras. 212–213). See also: Daniel P. O’Connell, The International Law of the Sea, vol. II (1982), 848; Alan V. Lowe, The Right of Entry into Maritime Ports in International Law, San DiegoLRev 17 (1977), 597, 619. 20 The International Ship and Port Facility Code (as adopted 12 December 2002) is implemented under Ch. XI/2 Ch. 2 Annex International Convention for the Safety of Life at Sea 1974 (SOLAS 1974 as amended). 21 Churchill/Lowe (note 7), 87.

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The right to suspend innocent passage is subject to four conditions. First, it must be necessary to protect coastal State security. It may be noted that this provision only refers to ‘security’ unlike Art 19(1), which refers to ‘peace, good order and security’. This indicates a more limited range of reasons may be available to justify instances where passage is temporarily suspended. However, it is difficult to conceive of how such a difference would operate in practice. In this respect CHURCHILL & LOWE note that this aspect of the right is liberally framed, with the additional of the example of ‘weapons exercises’.22 This indicates that suspension is possible for a range of wider security matters, of which military security is just one example. This seems to be born out in practice, with States taking protective measures against vessels carrying migrants and vessels posing environmental risks. In the latter instance, the International Maritime Organisation has sought to coordinate State responses through the use of places of refugee for vessels in distress. 23 13 Second, suspension must be non-discriminatory between foreign ships ‘in form or in fact’. This phrase also appears in Arts. 24, 42 (2), 52 (2) and 227, and bears a similar connotation. It means, in principle, all foreign vessels must be banned from any areas of sea in which the right to innocent passage has been suspended. State practice on this point is difficult to assess, although there are reported instances of States suspending innocent passage as a means of targeting specific vessels, as in the case of the L USITANIA EXPRESSO.24 14 Third, suspension must be temporary. However, there is no definition of ‘temporary’ suspension and no limit on its duration is provided in the text. In practice this period of time should be coterminous with the related security threat. 15 Finally, before any suspension can be effective the coastal State must publish notice of the area of suspension. Some States have gone as far as notifying the UN Secretary-General, although the list of notifications appears to be limited. 25 It would seem sensible to approach the issue of publicity in a manner consistent with publicity of navigational hazards under Article 24 (2).26 12

Article 26 Charges which may be levied on foreign ships 1. No charge may be levied upon foreign ships by reason only of their passage through the territorial sea. 2. Charges may be levied upon a foreign ship passing through the territorial sea as payment only for specific services rendered to the ship. These charges shall be levied without discrimination. Bibliography: David H. Anderson, The Imposition of Tolls on Ships: A Review of International Practice, Singapore JICL 2 (1998), 400–407; Isaac Smith Homans/Issac Smith Homans Jr, A Cyclopedia of Commerce and Commercial Navigation (1858); David C. Jackson, Enforcement of Maritime Claims (4th edn. 2005); Francis Ngantcha, The Right of Innocent Passage and the Evolution of the International Law of the Sea (1990); Myron Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Daniel P. O’Connell, The International Law of the Sea, vol. II (1984); Haijiang Yang, Jurisdiction of the Coastal State over Foreign Merchant Ships in Internal Waters and the Territorial Sea (2005) Documents: ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45; League of Nations, Committee of 22

Ibid., 87–88. IMO, Guidelines on Places of Refuge for Ships in Need of Assistance, IMO Res. A.949(23) of 5 December 2003. 24 Donald R. Rothwell, Innocent Passage in the Territorial Sea: The UNCLOS Regime and Asia Pacific State Practice, in: Donald R. Rothwell/Sam Bateman (eds.), Navigational Rights and Freedoms in the New Law of the Sea (2000), 92. 25 Available at: http://www.un.org/depts/los/convention_agreements/innocent_passages_suspension.htm. 26 See further Barnes on Art. 24 MN 11. 23

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1–4

Art. 26

Experts for the Progressive Codification of International Law, LN Doc. C.196.M.70.1927.V.193 (1927); League of Nations, Conference on the Codification of International Law, LN Doc. C.230.M.117.1930.V.8 (1930) Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘Charges may be levied upon a foreign ship […] as payment only for specific services rendered’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Failure to Pay for Services Rendered During Passage . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 6 6 8

I. Purpose and Function Art. 26 provides that a coastal State may not levy any charges on a foreign ship engaged in 1 innocent passage by reason of mere passage alone. The coastal State may, however, levy charges on a foreign ship for specific services rendered during passage. In doing so, the coastal State must not act in a manner which is discriminatory. The prohibition on levying charges upon foreign ships provided in Art. 26 (1) represents a clear limitation on the enforcement powers of the coastal State in order to protect global navigational interests.

II. Historical Background Attempts to levy passage tolls in coastal waters dates back to at least the 15th century, but 2 this was usually disputed.1 At the end of the 19th century the members of the Third Committee of the Institut de Droit International 1882 unanimously agreed that the coastal State might not subject shipping in the territorial sea to payment of tolls. While the Rapporteur agreed that a right to levy tolls in certain exceptional circumstances would be justified, neither this nor any mention of tolls was included in the final draft report adopted by the Institut due to a negative response on the point of tolls in exceptional circumstances. 2 SCHU¨CKING’S draft Art. 10 to the Sub-Committee of the Committee of Experts to the Hague 3 Codification Conference stated that ‘within the territorial waters no dues of any kind may be levied, except dues intended solely to defray expenses of supervision and administration’. 3 It appeared that general consensus supported the payment of fees only for specific services rendered and as a result the final draft of the Hague Codification read as follows: ‘No charge may be levied upon foreign vessels by reason only of their passage through the territorial sea. Charges may be levied upon a foreign vessel passing through the territorial sea as payment for specific services rendered to the vessel. These charges shall be levied without discrimination.’ 4

The International Law Commission (ILC) accepted the general principle that no charges 4 were to be levied upon general navigation. Notably, the ILC rejected a proposal to include a further provision stating the right of the coastal State to demand information on the nationality, tonnage, provenance and destination of passing vessels in order to facilitate the levying of charges.5 This was considered to open up the possibility of interference 1 Isaac Smith Homans/Issac Smith Homans Jr, A Cyclopedia of Commerce and Commercial Navigation (1858), 534. 2 Daniel P. O’Connell, The International Law of the Sea, vol. II (1984), 839; Haijiang Yang, Jurisdiction of the Coastal State over Foreign Merchant Ships in Internal Waters and the Territorial Sea (2005), 178. 3 League of Nations, Committee of Experts for the Progressive Codification of International Law, LN Doc. C.196.M.70.1927.V.193 (1927). 4 League of Nations, Conference on the Codification of International Law, LN Doc. C.230.M.117.1930.V.8 (1930), Art. 7. 5 ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12, 20–21 (Art. 19).

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5–8

Part II. Territorial sea and contiguous zone

with passage if used injudiciously. The ILC also noted that special rights may be provided for by international agreement.6 5 Art. 18 of the 1958 Convention on the Territorial Sea and Contiguous Zone (CTSCZ) was reproduced verbatim in Art. 26. The only change between Art. 18 CTSCZ and Art. 26 is the position of the article in the overall convention, with it being moved from ‘Rules Applicable to Merchant Ships’ in sub-section B of the 1958 CTSCZ to ‘Rules applicable to all ships’ under UNCLOS.7

III. Elements 1. ‘Charges may be levied upon a foreign ship […] as payment only for specific services rendered’ Art. 26 precludes charges for mere passage, whilst allowing charges for specific services. This precludes general tolls on passing ships. Following the ILC’s comments on Art. 18 CTSCZ, YANG suggests that the smooth operation of Art. 26 requires general services to be distinguished from specific services.8 Arguably, general services include those which are provided to any ship, such as placing and maintaining navigation aids (e. g. buoys, lights and signals, and satellite positioning systems) and the provision of vessel traffic services. The United Kingdom and Ireland levy ‘light dues’ that help to defray the costs of navigational aids around the coast.9 As these are only levied on ships entering port and not on passing ships, they are a form of port State jurisdiction and do not breach Art. 26. In any event, they have not been protested by other States.10 Whilst these services might be used by specific vessels, by levying for the defray, they effectively result in a general toll on services. Art. 26 is not entirely clear how far charges on general services used by specific ships can be recovered. This possibility seems open especially given that the equivalent provision for straits (Art. 43) seems to countenance this. Specific services are those directed at a particular ship, such as pilotage, salvage, wreck removal, towage, dedicated dredging services and urgent repairs, and these will be subject to charges by service providers, either under contract or private maritime law. 7 NORDQUIST et al. indicate that it is implicit from the provision as a whole that charges for services should be reasonably commensurate with the cost of those services. 11 However, States have little control over such matters since such services are usually provided by private companies. 6

2. Failure to Pay for Services Rendered During Passage 8

NGANTCHA questions whether a failure by a foreign ship to pay for a service rendered by the coastal State will affect the right of innocent passage. 12 He presents two schools of thought. The first is that failure to pay does not render passage non-innocent; it requires the coastal State to recover costs through other channels. The other approach is that Art. 26 forms part of the conditions for passage and so must be complied with in order to maintain the innocence of passage. NGANTCHA suggests that the second interpretation is tenable when 6

Ibid. Myron Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 236. 8 Yang (note 2), 179. 9 For example, see s. 205 (2) of the Merchant Shipping Act 1995 (UK). 10 David H. Anderson, The Imposition of Tolls on Ships: A Review of International Practice, Singapore JICL 2 (1998), 400, 402. 11 Nordquist/Nandan/Rosenne (note 7), 236. 12 Francis Ngantcha, The Right of Innocent Passage and the Evolution of the International Law of the Sea (1990), 176–178. 7

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considering the legislative history of the provision. A combined reading of Art. 7 of the Hague Codification Draft and the attached observations highlight that in appropriate circumstances no foreign ship could escape charges, and as such a ship which fails to pay the dues could forfeit the right of innocent passage.13 He further relies on the ILC’s deliberations during the preparation of the 1956 draft articles and the proposed elimination of the phrase ‘these charges shall be levied without discrimination’. The purpose of this elimination was to allow for cases: ‘[…] in which special rights granted by one State to another given State may be fully justified by the special relationship between the two States, and that in the absence of treaty provisions to the contrary, the grant of such rights cannot be invoked by other States as a ground for claiming similar treatment.’14

At UNCLOS I, the non-discrimination clause was re-inserted into the 1958 CTSCZ. It was 9 considered that there could be no special rights within the framework of the general obligation of foreign vessels to pay charges to the coastal State for the provision of specific services. The existence of a general rule on service charges without exception, when read with the requirement for vessels to adhere to coastal State laws and regulations under Art. 21, leads NGANTCHA to conclude that payment of charges (for services rendered) and the exercise of the right of innocent passage are ‘phenomena which could not be divorced one from the other.’15 In other words non-payment of charges may equate to non-compliance with the requirements of innocent passage. As Art. 26 has incorporated the CTSCZ and 1930 Hague codification texts, the UNCLOS framework has adopted this interpretation and as such, ‘in appropriate circumstances, the non-payment of charges levied by the coastal State could be prejudicial to the exercise of the right of innocent passage.’16 This view is difficult to reconcile with the view that not every breach of coastal State laws 10 or regulations renders passage non-innocent.17 Moreover, private maritime law provides appropriate mechanisms for the recovery of the costs of shipping services through an internationally recognised system of maritime liens and claims.18 Private service providers are certainly limited to such mechanisms, and there seems to be little reason to treat State controlled services differently. As such, the preferred view is that mere non-payment does not immediately render passage non-innocent, although subsequent non-compliance with coastal State measures to secure payment may ultimately have this effect.

Subsection B Rules applicable to merchant ships and government ships operated for commercial purposes Article 27 Criminal jurisdiction on board a foreign ship 1. The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage, save only in the following cases: 13

Ibid., 177. ILC Law of the Sea Articles with Commentaries (note 5), 20 (Art. 18). 15 Ngantcha (note 12), 178. 16 Ibid. 17 See Barnes on Art. 19 MN 11. 18 See Art. 4 International Convention on Maritime Liens and Mortgages; and generally David C. Jackson, Enforcement of Maritime Claims (4th edn. 2005). 14

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(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 diplomatic agent or consular officer of the flag State; or (d) if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances. 2. The above provisions do not affect the right of the coastal State to take any steps authorized by its laws for the purpose of an arrest or investigation on board a foreign ship passing through the territorial sea after leaving internal waters. 3. In the cases provided for in paragraphs 1 and 2, the coastal State shall, if the master so requests, notify a diplomatic agent or consular officer of the flag State before taking any steps, and shall facilitate contact between such agent or officer and the ship’s crew. In cases of emergency this notification may be communicated while the measures are being taken. 4. In considering whether or in what manner an arrest should be made, the local authorities shall have due regard to the interests of navigation. 5. Except as provided in Part XII or with respect to violations of laws and regulations adopted in accordance with Part V, the coastal State may not take any steps on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed before the ship entered the territorial sea, if the ship, proceeding from a foreign port, is only passing through the territorial sea without entering internal waters. Bibliography: Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals (1987); Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); Gerald Fitzmaurice, Some Results of the Geneva Conference on the Law of the Sea, ICLQ 8 (1959), 73–121; Anne T. Gallagher/Fiona David, The International Law of Migrant Smuggling (2014); Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (2009); Haijiang Yang, Jurisdiction of the Coastal State over Foreign Merchant Ships in Internal Waters and the Territorial Sea (2005); Robert Y. Jennings, Extradition and Asylum, BYIL 26 (1949), 468; Phillip C. Jessup, The Law of Territorial Waters and Maritime Jurisdiction (1927); Luke T. Lee, Jurisdiction Over Foreign Merchant Ships in the Territorial Sea: An Analysis of the Geneva Convention on the Law of the Sea, AJIL 55 (1961), 77–96; Myres S. McDougal/William T. Burke, The Public Order of the Oceans: A Contemporary International Law of the Sea (1962); Herman Meyers, The Nationality of Ships (1967); Francis Ngantcha, The Right of Innocent Passage and the Evolution of the International Law of the Sea (1990); Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Daniel P. O’Connell, The International Law of the Sea, vol. II (1984); Tom 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: Bernard Ryan/Valsamis Mitsilegas (eds.), Extraterritorial Immigration Control (2010), 151–166; Alla Pozdnakova, Criminal Jurisdiction Over Perpetrators of Ship-Source Pollution (2013); Ivan A. Shearer, Problems of Jurisdiction and Law Enforcement Against Delinquent Vessels, ICLQ 35 (1986), 320–343; Yoshifumi Tanaka, The International Law of the Sea (2012) Documents: Harvard Law School, The Law of Territorial Waters: Appendix No. 2: Projet de re`glement relatif a` la Mer Territoriale en Temps de Paix, L’Institut de Droit International, AJIL 23, No. 2 Suppl. (1929), 368–370; Harvard Law School, The Law of Territorial Waters: Appendix No. 4: Project No. 12 on ‘Jurisdiction’ submitted to the International Commission of Jurists at Rio de Janeiro, April 1929, by the American Institute of International Law, AJIL 23, No. 2 Suppl. (1929), 372–373; Harvard Law School, The Law of Territorial Waters: Appendix No. 6: Draft Convention on Law of Maritime Jurisdiction in Time of Peace by the International Law Association, AJIL 23, No. 2 Suppl. (1929), 373–375; IMO, The Collation and Preservation of Evidence Following an Allegation of a Serious Crime Having Taken Place on Board a Ship or Following a Report of a Missing Person From a Ship, and Pastoral and Medical Care of Victims, IMO Res. A.1058(27) of 20 December 2011; SC Res. 1540 (2004) Cases: Antoni Case, 6 El Foro 194 (Mexico); Cour de Cassation, M/C ‘Ruby’ Case, No. 95-80725, 3 May 1995 (France); US v. Postal et al 589 F.2d. 862 (5th Cir, 1979) (US); Cunard Steamship Co. v. Mellon, 43 S.Ct. 504 (1923) (US); ITLOS, M/V ‘Virgina G’ Case (Panama/Guinea Bissau), Judgment 14 April 2014, available at: https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.19/judgment/C19-Judgment_14.04.14_corr.pdf; ITLOS, The M/V ‘Saiga’ (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment of 1 July 1999, ITLOS Reports (1999), 10; R. v. Keyn [1876] 2 Ex. D. 63 (UK); Pianka v R [1979] AC 107 (UK); The Schooner Exchange v. McFaddon, 11 U.S. 116; Wildenhus Case, 120 U.S. 1 (1897)

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Art. 27

Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘save only in the following cases’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘to take any steps […] for the purpose of an arrest or investigation on board a foreign ship’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. ‘the coastal State shall […] notify a diplomatic agent or consular officer of the flag State’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. ‘due regard to the interests of navigation’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. ‘any crime committed before the ship entered the territorial sea’ . . . . . . . . . . . . . . .

1 4 8 8 12 18 19 20 21

I. Purpose and Function Art. 27 concerns the exercise of criminal jurisdiction by a coastal State in relation to 1 offences on board a foreign ship that is passing through its territorial sea. It is concerned mainly with matters on-board the vessel, rather than its external conduct, which is addressed by Art. 25. Since Art. 27 falls under Part II, Section 3, Subsection B, the provision on coastal State criminal jurisdiction extends to all merchant ships and government ships operated for commercial purposes. The aim of Art. 27 is to balance flag State interests in shipping and navigation on the one hand, with the interests of the coastal State in securing the enforcement of criminal law in its territory.1 However, Art. 27 does not generally resolve conflicts of jurisdiction that may arise, leaving these to be determined on a case-by-case basis. For the purposes of Art. 27, a distinction can be drawn between three types of passage: lateral 2 passage, inward passage and outward passage. In the first case, coastal States should not exercise jurisdiction in relation to acts occurring on board a ship during innocent passage, except in the circumstances listed in Art. 27 (1). This includes: crimes which incur consequences that extend to the coastal State; crimes which disturb the peace of the coastal State or good order of the territorial sea; requests for assistance; and measures to suppress illicit drug trafficking. It is debateable whether this list of exceptions is exhaustive, as will be discussed below. 2 When a vessel is engaged in inward passage, such jurisdiction may not be exercised if the offence occurred before the ship entered the territorial sea. In contrast, the coastal State has broader jurisdictional rights against foreign vessels engaged in outward-bound passage. Thus, coastal States are not restricted in enforcing criminal laws against vessels leaving internal waters. Two conditions apply to the exercise of jurisdiction on-board a foreign flagged vessel. 3 Firstly, under Art. 27 (3), the coastal State is required to notify the diplomatic or consular authorities of the flag State. Secondly, the coastal State is required to have due regard to the interests of navigation when deciding whether and how to conduct the arrest of a vessel.

II. Historical Background The authority of coastal States to enforce their criminal law against acts occurring on- 4 board foreign flagged vessels in territorial waters was not settled as a matter of customary international law prior to the codification efforts of the twentieth century. Two positions prevailed in practice and doctrine.3 The first view, held by common law States like the United 1 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 239. 2 See infra, MN 12. 3 Phillip C. Jessup, The Law of Territorial Waters and Maritime Jurisdiction (1927), Ch. 3; Robin R. Churchill/ Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 95–96.

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Kingdom and the United States, was that a coastal State could enforce any of its laws against foreign vessels, subject only to restraint exercised as a matter of comity. 4 The other view, typically held by continental European States like Belgium, France and Norway, was that coastal States could only enforce specific laws against foreign ships. Despite these positions of principle, JESSUP noted that there was little significant difference in actual practice. 5 5 In the 1920s, prior to the Hague Codification Conference, a number of proposals on coastal State jurisdiction over criminal acts within the territorial sea were developed. These tended to reflect the above divergence of views. Thus, the American Institute of International Law advanced the plenary criminal jurisdiction of the coastal State, 6 whereas the International Law Association and the Institute de Droit International took the view that unless acts troubled the public order or peace of the coastal State they remained subject to the law of the flag State.7 As such, it can be concluded that there was no general consensus on the matter. 6 Although the Hague Conference did not result in an agreement, its work in producing Draft Articles on the Territorial Sea in 1930 had a lasting influence on subsequent codification efforts, as shown by the similarities in subsequent codification texts. Art. 8 of the draft provides that: ‘A coastal State may not take any steps on board a foreign vessels passing through the territorial sea to arrest any person or to conduct any investigation by reason of any crime committed on board the vessels during its passage, save only in the following cases: 1. If the consequences of the crime extend beyond the vessel; or 2. If the crime is of a kind to disturb the peace of the country or the good order of the territorial sea; or 3. If the assistance of the local authorities has been requested by the captain of the vessel or by the consul of the country whose flag the vessel flies; The above provisions do not affect the right of the coastal State to take any steps authorized by its laws for the purpose of an arrest or investigation on board a foreign vessel in the inland waters of that State or lying in its territorial sea, or passing through the territorial sea after leaving inland waters. The local authorities shall, in all cases, pay due regard to the interests of navigation when making an arrest on board a vessel.’8

Whilst NGATCHA notes that contemporary commentators questioned the precise content of Art. 8 of the draft, it was later adopted without significant change as the basis for Art. 19 of the Convention on the Territorial Sea and the Contiguous Zone (CTSCZ).9 Art. 19 (1) CTSCZ provides that: ‘1. The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connexion with any crime committed on board the ship during its passage, save only in the following cases: (a) If the consequences of the crime extend to the coastal State; or (b) If the crime is of a kind to disturb the peace of the country or the good order of the territorial sea; or

4 In the UK, see the Territorial Waters Jurisdiction Act 1878, adopted in response to the decision of the House of Lords in R. v. Keyn [1876] 2 Ex. D. 63 (UK). In the US, see for example The Schooner Exchange v. McFaddon, 11 U.S. 116 and Cunard Steamship Co. v. Mellon, 43 S.Ct. 504 (1923), 507 (US). 5 Jessup (note 3), 286. 6 Harvard Law School, The Law of Territorial Waters: Appendix No. 4: Project No. 12 on ‘Jurisdiction’ submitted to the International Commission of Jurists at Rio de Janeiro, April 1929, by the American Institute of International Law, AJIL 23, No. 2 Suppl. (1929), 372 (Art. 8). 7 Harvard Law School, The Law of Territorial Waters: Appendix No. 6: Draft Convention on Law of Maritime Jurisdiction in Time of Peace by the International Law Association, AJIL 23, No. 2 Suppl. (1929), 373, 374 (Art. 11); Harvard Law School, The Law of Territorial Waters: Appendix No. 2: Projet de re`glement relatif a` la Mer Territoriale en Temps de Paix, L’Institut de Droit International, AJIL 23, No. 2 Suppl. (1929), 368, 369 (Art. 7). 8 League of Nations, Acts of the Conference for the Codification of International Law, LN Doc. C.228.M.115.1930.V. 9 Francis Ngantcha, The Right of Innocent Passage and the Evolution of the International Law of the Sea (1990), 99.

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(c) If the assistance of the local authorities has been requested by the captain of the ship or by the consul of the country whose flag the ship flies; or (d) If it is necessary for the suppression of illicit traffic in narcotic drugs. 2. The above provisions do not affect the right of the coastal State to take any steps authorized by its laws for the purpose of an arrest or investigation on board a foreign ship passing through the territorial sea after leaving internal waters. 3. In the cases provided for in paragraphs 1 and 2 of this article, the coastal State shall, if the captain so requests, advise the consular authority of the flag State before taking any steps, and shall facilitate contact between such authority and the ship’s crew. In cases of emergency this notification may be communicated while the measures are being taken. 4. In considering whether or how an arrest should be made, the local authorities shall pay due regard to the interests of navigation. 5. The coastal State may not take any steps on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connexion with any crime committed before the ship entered the territorial sea, if the ship, proceeding from a foreign port, is only passing through the territorial sea without entering internal waters.’

Apart from developing in more detail the circumstances when coastal States could exercise enforcement authority, Art. 19 (1) CTSCZ contained an important change to draft Art. 8 (1), with the phrase ‘should not’ replacing the phrase ‘may not’. This was largely at the insistence of the United States, who took the view that in principle sovereignty over the territorial sea included the exercise of criminal jurisdiction. ‘May not’ would derogate from such sovereignty by creating a strict legal prohibition on the coastal State not to exercise jurisdiction, whereas ‘should not’ indicated that the exercise of jurisdiction was permissible and at the discretion of the coastal State. This was considered to be consistent with the underlying sovereignty of the coastal State, whilst accommodating due regard to navigational interests. 10 As LEE notes, however, this position was questionable as a matter of principle, and not without objection from other States.11 Art. 27 UNCLOS is copied almost verbatim from Art. 19 CTSCZ, with the following 7 differences: Firstly, the scope of application of Art. 27 is wider than Art. 19 CTSCZ, which applies only to merchant ships. Secondly, there are also minor drafting changes, such replacing the term ‘captain’ with ‘master’, the inclusion of a reference to ‘psychotropic substances’ in Art. 27 (1)(d), and the inclusion of a reference to ‘diplomatic agents’ in addition to consular officers in Art. 27 (1)(c).12 More significant are the new cross-references in Art. 27 (5) to Part V on the exclusive economic zone (EEZ) and Part XII on Protection and Preservation of the Marine Environment, where the coastal State is permitted to take investigatory and enforcement measures outside the territorial sea. This was introduced at the Sixth Session in 1977 to take account of developments occurring in the negotiation of other conventional provisions. 13

III. Elements 1. ‘The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship’ Art. 27 states that the coastal State ‘should not’ exercise criminal jurisdiction or stop or 8 divert a foreign ship passing through the territorial sea. The phrase ‘should not’ is considered by most commentators to be ‘hortatory only’.14 O’CONNELL explains that the theory behind 10 First Committee UNCLOS I, United States of America: Proposal, UN Doc. A/CONF.13/C.1/L.41 (1958), OR III, 221 (Art. 20). 11 Luke T. Lee, Jurisdiction Over Foreign Merchant Ships in the Territorial Sea: An Analysis of the Geneva Convention on the Law of the Sea, AJIL 55 (1961), 77, 83–84. 12 According to Nordquist et al., this latter point brought the text into line with the Vienna Convention on Diplomatic Relations: Nordquist/Nandan/Rosenne (note 1), 242–243. 13 UNCLOS III, Informal Composite Negotiating Text, UN Doc. A/CONF.62/WP.10 (1977), OR VIII, 9. 14 See Gerald Fitzmaurice, Some Results of the Geneva Conference on the Law of the Sea, ICLQ 8 (1959) 73, 104; Daniel P. O’Connell, The International Law of the Sea, vol. II (1984), 960; Ivan A. Shearer, Problems of

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the proposal was that since it was conceded in Art. 1 of the 1930 Draft Convention that the coastal State had sovereignty over the territorial sea, it was also legally competent to enforce its criminal law aboard foreign vessels in the territorial sea, including stopping and boarding them. He notes, however, that it ‘should not’ do so.15 FITZMAURICE argues that the phrase was ‘intended to reflect the fact that the rule enunciated represents standard international practice rather than strict international law.’16 LEE highlights that the debate at the Geneva Conference reflected the ‘long standing jurisprudential cleavage between the Anglo-American doctrine and that of France and its fellow continental countries.’17 The Anglo-American view claims that a State’s jurisdiction over foreign ships in territorial waters is absolute, although on practical grounds (such as comity, convenience and usage) the State may disclaim jurisdiction in cases where only the internal order of the ship is involved and the tranquillity of the port is unaffected. Thus, s. 2 of the UK Territorial Waters Jurisdiction Act 1878 extends criminal jurisdiction to any offence committed by any person whether or not they are a UK subject.18 In contrast, the continental view is that in the absence of specific rules permitting the exercise of jurisdiction, matters of criminal law are left to the jurisdiction of the flag State. Recognizing the divergence in State practice, O’C ONNELL further notes that there is no objective standard in legal doctrine to determine when jurisdiction to enforce is exercisable under Art. 27 (1). On this basis it must be assumed that determining whether or not to exercise criminal jurisdiction will be decided on a case-by-case basis according to the discretion of the coastal State. This, O’CONNELL suggests, is the significance of the replacing of ‘may not’ with ‘should not’. It allows for a workable system of criminal jurisdiction within which divergent domestic approaches can be reconciled.19 This appears to be borne out in State practice. Thus, YANG’S survey of practice indicates that States extend criminal jurisdiction in varying degrees to foreign ships in the territorial sea.20 9 Art. 27 permits coastal States to take action against ships engaged in a range of illegal activities. Notably, this may include enforcement measures against ships suspected of carrying weapons of mass destruction (WMD), and ships engaged in people trafficking or the smuggling of illegal migrants.21 Interestingly, in the context of international efforts to control movements of WMD and related material, Security Council Resolution 1540 (2004) appears to place States under an obligation to act in such circumstances. 22 10 The permitted enforcement measures include arresting individuals and conducting a criminal investigation in respect of the crime committed on-board the ship. 23 Whilst Art. 27 (1) uses the phrase ‘arrest of any person’, in practice States may seize the relevant vessel as part of the investigative process and subsequent legal proceedings, subject to the requirements of Art. 27 (4). Whilst the detention of the vessel in such circumstances is not explicitly addressed in Art. 27 (1), this can be implied from later references to investigation on board a foreign ship in Art 27 (2). It may also be inferred from Art. 73 concerning arrest of ships for Jurisdiction and Law Enforcement Against Delinquent Vessels, ICLQ 35 (1986), 320, 327. Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (2009), 11–12; Yoshifumi Tanaka, The International Law of the Sea (2012), 95. Cf. Myres S. McDougal/William T Burke, The Public Order of the Oceans: A Contemporary International Law of the Sea (1962), 279–80; Herman Meyers, The Nationality of Ships (1967), 77–80. 15 O’Connell (note 14), 961. 16 Fitzmaurice (note 14), 104. 17 Lee (note 11), 84. 18 Territorial Waters Jurisdiction Act 1878 (41 & 42 Vict. c. 73), available at http://www.legislation.gov.uk/ ukpga/Vict/41-42/73?view=plain. See also Pianka v R [1979] AC 107 (UK). 19 O’Connell (note 14), 961. 20 Haijiang Yang, Jurisdiction of the Coastal State over Foreign Merchant Ships in Internal Waters and the Territorial Sea (2005), 253–256. 21 Tom 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: Bernard Ryan/Valsamis Mitsilegas (eds.), Extraterritorial Immigration Control (2010), 151, 162; Anne T. Gallagher/Fiona David, The International Law of Migrant Smuggling (2014), 237–239. 22 Guilfoyle (note 14), 240–243. 23 Nordquist/Nandan/Rosenne (note 1), 242.

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breach of laws and regulation in the EEZ. Under domestic law, enforcement authorities are generally empowered to conduct investigations on ships.24 The precise conduct of such measures will be determined in accordance with domestic criminal procedures. However, there is some recognition of the benefits of harmonised or cooperative approaches to criminal investigations aboard ships.25 Art. 27 does not deal specifically with the exercise of penal jurisdiction arising out of 11 collisions. This is left to the 1952 International Convention for the Unification of Certain Rules Relating to Penal Jurisdiction in Matters of Collisions or Other Incidents. This convention reserves arrest, investigation and penal or disciplinary matters exclusively to the flag State.

2. ‘save only in the following cases’ Art. 27 (1) lists four circumstances where coastal States may take enforcement action against foreign vessels engaged in lateral passage. The use of the word ‘only’ suggests that the list of circumstances is exhaustive or to be construed restrictively. 26 However, this runs counter to the construction of ‘should not’ as noted above, which indicates a potentially wide residual enforcement jurisdiction. The preferable view is that the use of the word ‘only’makes it clear that jurisdiction may only be exercised in these four types of circumstance. Of course these exceptions may then be interpreted narrowly or broadly according to how serious the coastal State considers the nature or consequences of the crime. Whilst coastal States may take action to prevent passage that is non-innocent under Art. 25, there is nothing to prevent them taking alternative action under Art. 27. Thus, coastal States may exercise criminal jurisdiction over persons engaged in smuggling, illegal fishing, or any other matters regulated under Art. 21. The first qualification concerns situations where the consequences of the crime extend to the coastal State under Art. 27 (1)(a). This may overlap with matters covered by Art. 27 (1)(b). Arguably, the distinction is between acts physically extending to the coastal State and acts which have social, moral or other disturbing consequences for the coastal State. An example of the former would be pollution harm resulting from a discharge from a ship. 27 An example of the latter might be the commission of a racially or politically aggravated offence that sparks protest or copycat offences in the coastal State. The second qualification refers to crimes that disturb the ‘peace of the country or good order of the territorial sea’. A potential problem is the absence of a definition of ‘peace’ or ‘good order’. In the absence of an authoritative definition, this will be left to individual States and it may result in different approaches.28 Art. 27 does not explain how the consequences or disturbance might extend to the coastal State, leaving such matters to be determined by the coastal State. In practice it may include the commission of serious crimes, crimes where the victim or perpetrator is a national of the coastal State, or crimes the physical effects of which extend to the coastal State. The third qualification under Art. 27 (1)(c) refers to requests for assistance. Normally, the master is empowered to make an arrest or detain a person under the law of the flag State. 29 24 See for example, the United Kingdom Merchant Shipping (Accident Reporting and Investigation) Regulations 2012, SI 2012/1743, available at http://www.legislation.gov.uk/uksi/2012/1743/contents/made. 25 See IMO, The Collation and Preservation of Evidence Following an Allegation of a Serious Crime Having Taken Place on Board a Ship or Following a Report of a Missing Person from a Ship, and Pastoral and Medical Care of Victims, IMO Res. A.1058(27) of 20 December 2011. 26 See: ITLOS, The M/V ‘Saiga’ (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment of 1 July 1999, Separate Opinion of Judge Laing, ITLOS Reports (1999), 10, para. 15. 27 See generally Alla Pozdnakova, Criminal Jurisdiction Over Perpetrators of Ship-Source Pollution (2013). 28 See for example the contrasting decisions on the significance of murder committed aboard vessels in port in the Wildenhus Case, 120 U.S. 1 (1897), and the Antoni Case, 6 El Foro 194 (Mexico), reproduced in: Manley O. Hudson (ed.), Cases and Other Materials on International Law (1929), 630. 29 See for example, s. 105 of the Merchant Shipping Act 1995 (UK).

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However, this may not be sufficient to deal with a serious incident and so external assistance may be requested. The master of a ship or diplomatic agent or consular officer of the flag State may request the assistance of coastal State authorities to arrest a person or conduct an investigation on-board the ship. The extent to which assistance encompasses the investigation and prosecution of offences is not set out, and presumably depends upon the agreement of the parties involved. Strictly speaking, in such circumstances this amounts to a delegation of the flag State jurisdiction, rather than an independent exercise of coastal State jurisdiction. 17 The final exception under Art. 27 (1)(d) relates to measures necessary to supress drug trafficking. This has been one of the main reasons for coastal States exercising criminal jurisdiction over ships in territorial waters.

3. ‘to take any steps […] for the purpose of an arrest or investigation on board a foreign ship’ 18

Art. 27 (2) allows coastal States to arrest or investigate matters aboard outward-bound ships. This includes action in respect of crimes committed on-board vessels in port, or where an offender has embarked upon an outward-bound vessel, or where an offence is committed on board a vessel leaving port or territorial waters. The broad range of enforcement jurisdiction of the coastal State over outward-bound ships finds its justification in an analogy with the doctrine of hot pursuit (� Art. 111).30

4. ‘the coastal State shall […] notify a diplomatic agent or consular officer of the flag State’ 19

Art. 27 (3) requires the coastal State to notify the diplomatic or consular officers of the flag State before taking any steps, and to facilitate contact between such officers and the ship’s crew. In cases of emergency, this may be done at the same time as enforcement measures are being taken. This notification is contingent on the master’s request. This mechanism ensures that both flag State and coastal State can seek to ensure their respective interests are protected, as in the Eisler Incident.31 Here Poland protested the arrest, pursuant to an extradition request from the United States, of a German-born resident of the United States from a Polish flagged vessel located in British territorial waters. The UNCLOS does not indicate the consequences of a failure to notify the flag State. Presumably, the question of whether or not this failure to follow due process has prejudiced any legal proceedings will be an issue for the domestic courts to consider in the first instance. This would be consistent with the general requirement under international law to exhaust local remedies. 32

20

When deciding whether and how to effect an arrest, the coastal State, according to Art. 27 (4), shall have ‘due regard to the interests of navigation’. The meaning of this phrase is not explained, although it is similar to the language used in other parts of the Convention, notably Arts. 56 (2)33 and 87 (2).34 Presumably, this requires the coastal State to be aware of and to consider the interests of ships engaged in innocent passage through the territorial sea. It is further reinforced by the general requirement of good faith in Art. 300. 35 This would

5. ‘due regard to the interests of navigation’

30

Yang (note 20), 250. Noted by Robert Y. Jennings, Extradition and Asylum, BYIL 26 (1949), 468. See further Treves on Art. 295. 33 Due regard in Art. 56 (2) was interpreted as requiring ‘all possible consideration’ in the ITLOS, M/V ‘Virginia G’ Case (Panama/Guinea Bissau), Judgment 14 April 2014, para. 347, available at: https://www.itlos.org/ fileadmin/itlos/documents/cases/case_no.19/judgment/C19-Judgment_14.04.14_corr.pdf. 34 See further Guilfoyle on Art. 87 MN 9. 35 See generally O’Brien on Art. 300. 31 32

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suggest that coastal States should not exercise their right to arrest ships in an arbitrary fashion, for reasons that do not relate to Art. 27, or in such a way that frustrates the Convention’s aim to facilitate communication and navigation.36

6. ‘any crime committed before the ship entered the territorial sea’ Art. 27 (5) places a mandatory prohibition (‘may not’) on the coastal State exercising 21 jurisdiction in respect of crimes committed beyond the territorial sea when a foreign vessel enters the territorial sea for lateral passage only. However, in practice, some coastal States have taken a flexible approach to dealing with crimes committed ‘before’ a vessel enters into territorial waters. For example, the French Cour de Cassation upheld jurisdiction over the prosecution of the Ukrainian crew for the execution of eight Cameroon stowaways aboard a Bahamas registered ship outside French waters.37 Although the executions were carried out outside the territorial sea, the offence was deemed to have continued into French territorial waters when a ninth stowaways escaped and was hunted down as the ship came into territorial waters. Art. 27 (5), by way of cross reference to Part XII and Part V of UNCLOS permits action in 22 respect of the enforcement of environmental pollution laws and laws related to the EEZ respectively. This results in two further exceptions to the old Geneva formulation. First, States now have wide ranging enforcement jurisdiction in respect of marine environmental protection, as noted in Arts. 218 and 220 (3), (5) and (6). Second, under Art. 73, coastal States may take enforcement measures in respect of its conservation and management laws over the resources of the EEZ. The effect of this provision is to expand the circumstances in which the coastal State can take enforcement measures in the territorial sea. 38

Article 28 Civil jurisdiction in relation to foreign ships 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. 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. 3. Paragraph 2 is without prejudice to the right of the coastal State, in accordance with its laws, to levy execution against or to arrest, for the purpose of any civil proceedings, a foreign ship lying in the territorial sea, or passing through the territorial sea after leaving internal waters. Bibliography: Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); Gerald Fitzmaurice, Some Results of the Geneva Conference on the Law of the Sea, ICLQ 8 (1959), 73–121; David C. Jackson, Enforcement of Maritime Claims (4th edn. 2005); Nigel Meeson/John Kimbell, Admiralty Jurisdiction and Practice (4th edn. 2011); Francis Ngantcha, The Right of Innocent Passage and the Evolution of the International Law of the Sea (1990); Daniel P. O’Connell, The International Law of the Sea, vol. II (1982); Donald R. Rothwell/Tim Stephens, The International Law of the Sea (2010); Ivan A. Shearer, Problems of Jurisdiction and Law Enforcement Against Delinquent Vessels, ICLQ 35 (1986), 320–343; Haijiang Yang, Jurisdiction of the Coastal State over Foreign Merchant Ships in Internal Waters and the Territorial Sea (2005) 36 See generally, Arts. 26 and 31 of the Vienna Convention on the Law of Treaties. On good faith, see generally Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals (1987), 105–160. 37 Cour de Cassation, M/C ‘Ruby’ Case, No. 95-80725, 3 May 1995 (France). See also US v. Postal et al. 589 F.2d. 862 (1979). 38 See generally, Harrison on Art. 73.

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Documents: ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45; League of Nations, Acts of the Conference for the Codification of International Law, LN Doc. C.230.M.117.1930.V.9 (1930) ~ia de Navegacio´n Nacional (Panama) v. United States, Decision of 29 June 1933, RIAA VI, 382; Cases: Compan The ‘Trade Resolve’ [1999] 4 SLR 424 (Singapore) Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘The coastal State should not stop or divert a foreign ship […] for the purpose of exercising civil jurisdiction in relation to a person on board the ship’ . . . . . . 2. Jurisdiction Against Vessels. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 9 9 10

I. Purpose and Function Art. 28 outlines coastal State civil jurisdiction in relation to foreign ships passing through the territorial sea. Civil jurisdiction, as opposed to criminal jurisdiction, generally concerns matters of contractual and non-contractual obligations, family law, employment law and land/property law. Art. 28 seeks to limit the grounds upon which a coastal State may interfere with ships in the territorial sea. It is the civil counterpart to Art. 27 on criminal jurisdiction. Art. 28 distinguishes between jurisdiction over persons on board vessels in the territorial sea, and jurisdiction over vessels. The former is covered by Art. 28 (1) which provides that the coastal State should not hinder the passage of a foreign ship passing through the territorial sea for the purpose of exercising civil jurisdiction in relation to any person on board. Pursuant to Art. 28 (2), the coastal State has no authority to arrest or seize the ship itself for the purpose of civil proceedings unless in relation to obligations or liabilities incurred during its current passage, for example, collision, salvage, pilotage and towage. Any execution against or arrest of a ship must be in relation to obligations or liabilities during the current passage and not in respect of those which may have arisen previously. 2 More precise questions of jurisdiction over civil matters, for example cargo claims occurring on board ships, tort arising from collisions, towage, and salvage actions, are governed under rules of private international law.1 These will determine the appropriate forum and law for the resolution of a private law dispute. However, international law remains concerned with such matters since this involves the coordination of domestic private law systems2. Thus private maritime agreements remain contingent upon jurisdictional frameworks under public international law. 1

II. Historical Background 3

Until the development of clear rules of international law, the extent of civil jurisdiction over vessels in the territorial sea remained uncertain, but potentially extensive. For example, jurisdiction on board foreign vessels in innocent passage in the territorial sea existed in English law from the enactment of the Merchant Shipping Act 1854 until 1956. 3 The legislation authorized the arrest of a ship which caused injury in any part of the world to any property of the Crown or the Crown’s subjects, at any point after the damage is suffered, 1 See generally Nigel Meeson/John Kimbell, Admiralty Jurisdiction and Practice (4th edn. 2011); David C. Jackson, Enforcement of Maritime Claims (4th edn. 2005). 2 Daniel P. O’Connell, The International Law of the Sea, vol. II (1982), 859. 3 s. 527 Merchant Shipping Act 1854 (17 & 18 Vict c. 104). Also s. 688 Merchant Shipping Act 1894 (57 & 58 Vict c. 60), repealed by s. 7 (1) Administration of Justice Act 1956 (4 & 5 Eliz 2 c. 46).

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if the ship entered United Kingdom waters out to 3 NM off the coast. This practice ended in 1956 as a result of developments occurring at UNCLOS I, as noted below. 4 The issue of coastal State jurisdiction over civil matters was first addressed at the 1930 4 Hague Codification Conference. The Preparatory Committee to the Conference concluded that the exercise of civil jurisdiction, unlike that of criminal jurisdiction, did not seem to seriously threaten the innocent passage of foreign ships. The committee formulated the discussion on the basis of two proposals, first that coastal States would be permitted to arrest a person on board a ship within the territorial sea, and second, that coastal States would be restricted in their ability to arrest a person in such manner. 5 The second basis was ultimately adopted and incorporated into Art. 9: ‘A Coastal State may not arrest nor divert a foreign vessel passing through the territorial sea, for the purpose of exercising civil jurisdiction in relation to a person on board the vessel. A Coastal State may not levy execution against or arrest the vessel for the purpose of any civil proceedings save only in respect of obligations or liabilities incurred by the vessel itself in course of or for the purpose of its voyage through the waters of the coastal State. The above provisions are without prejudice to the right of the coastal State in accordance with its laws to levy execution against, or arrest, a foreign vessel in the inland waters of the State or lying in the territorial sea, or passing though the territorial sea after leaving inland waters of the state, for the purpose of any civil proceedings.’6

With some textual amendments, this formed the basis for the provisions on civil jurisdic- 5 tion considered by the International Law Commission (ILC) in preparation for UNCLOS I. The deliberations of the ILC were also influenced by the adoption of the Brussels Convention 1952.7 Art. 2 of this provided that ‘a ship flying the flag of one of the Contracting States may be arrested in the jurisdiction of any of the Contracting States in respect of any maritime claim[…]’ (emphasis added). Members of the ILC were generally of the view that the regimes needed to be compatible. However, incorporating the approach of the Brussels Convention, which included more extensive grounds for arrest, posed considerable difficulties, and so the ILC reverted to its previous position.8 Ultimately, States’ rights under different agreements would be safeguarded by Art. 25 of the Convention on the Territorial Sea and Contiguous Zone (CTSCZ), which provided that the provisions of the CTSCZ do not affect agreements already in force between States parties. The main provision of the CTSCZ dealing with civil jurisdiction is Art. 20. As noted below, 6 this influenced the drafting of Art. 28 of UNCLOS. Art. 20 provides that: ‘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. 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. 3. The provisions of the previous paragraph are without prejudice to the right of the coastal State, in accordance with its laws, to levy execution against or to arrest, for the purpose of any civil proceedings, a foreign ship lying in the territorial sea, or passing through the territorial sea after leaving internal waters.’9

The most important change from the Hague Draft was the substitution of ‘should not’ in 7 place of ‘may not’ in Art. 20 (1). This was the result of a US proposal which noted that no such limitation existed under international law; civil jurisdiction extended to the limits of the territorial sea. The proposal allowed a balance between this and the practice of refraining 4

See further O’Connell (note 2), 868 et seq. Haijiang Yang, Jurisdiction of the Coastal State over Foreign Merchant Ships in Internal Waters and the Territorial Sea (2005), 257. 6 League of Nations, Acts of the Conference for the Codification of International Law, LN Doc. C.230.M.117.1930.V.9 (1930). 7 International Convention for the Unification of Certain Rules Relating to the Arrest of Seagoing Ships. 8 ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12, 20 (Art. 20). 9 Emphasis added. 5

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from the exercise of jurisdiction against vessels traversing the territorial sea. 10 Art. 28 (2) might be regarded as changing international law to the extent that it overruled the decision of the US-Panama General Claims Arbitral Tribunal in The David (1933).11 Here the tribunal held that the arrest of a foreign ship in innocent passage was permitted in respect of a claim arising from a collision which occurred on a previous journey through territorial waters. 8 Art. 28 repeats almost verbatim Art. 20 Convention on the Territorial Sea and Contiguous Zone. At the Second Session of UNCLOS III in 1974, proposals by Fiji12 and Bulgaria, the German Democratic Republic, Poland and USSR,13 suggested strengthening the wording of Art. 28 (1) further by substituting ‘should not’ with the more imperative ‘shall not’. This was not adopted and the text remained without significant changes until its final adoption.

III. Elements 1. ‘The coastal State should not stop or divert a foreign ship […] for the purpose of exercising civil jurisdiction in relation to a person on board the ship’ 9

Art. 28 (1) provides that a coastal State should not intervene for the purposes of exercising civil jurisdiction in relation to any person on board the ship. This is consistent with the approach taken to criminal jurisdiction in Art. 27. The obligation is hortatory, rather than strict, and contrasts with the language used in Art. 28 (2).14 In practice, coastal States have little reason for exercising civil jurisdiction over internal matters on board foreign ships. 15

2. Jurisdiction Against Vessels Art. 28 (2) provides that a coastal State may not levy execution against or arrest a ship for the purpose of civil proceedings. This is framed as an absolute obligation.16 There is an exception to this in respect of obligations or liabilities assumed or incurred by the vessel arising during the course of its voyage through the waters of the coastal State. This might include liability for negligence arising from a collision, or the receipt of towage or salvage services in the territorial sea. For States Parties to the International Convention for the Unification of Certain Rules relating to Civil Jurisdiction in Matters of Collision 1952, an action for collision can only be brought in the courts of: (a) the place where the defendant has his habitual residence or place of business; (b), the place of arrest; or (c) the place of the collision when this occurred within port or internal waters. 17 To the extent that pollution is classed as a civil matter, coastal States may rely on Art. 28 to take action against ships in the territorial sea if they are engaged in vessel source pollution.18 11 Art. 28 (2) refers only to acts that ‘levy execution against or to arrest’ a ship. This means coastal State authorities can still serve writs against vessels in the territorial sea. 19 Other 10

10 First Committee UNCLOS I, United States of America: Proposal, UN Doc. A/CONF.13/C.1/L.42 (1958), OR III, 221. ~ia de Navegacio´n Nacional (Panama) v. United States, Decision of 29 June 1933, RIAA VI, 382. 11 Compan 12 Second Committee UNCLOS III, Fiji: Draft Articles Relating to Passage Through the Territorial Sea, UN Doc. A/CONF.62/C.2/L.19 (1974), OR III, 196, 198 (Art. 9). 13 Second Committee UNCLOS III, Bulgaria et al.: Draft Articles on the Territorial Sea, UN Doc. A/CONF.62/ C.2/L.26 (1974), OR III, 203, 204 (Art. 24). 14 O’Connell (note 2), 874; Gerald Fitzmaurice, Some Results of the Geneva Conference on the Law of the Sea, ICLQ 8 (1959), 73, 107; Ivan A. Shearer, Problems of Jurisdiction and Law Enforcement against Delinquent Vessels, ICLQ 35 (1986), 320, 328; Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 98. 15 Francis Ngantcha, The Right of Innocent Passage and the Evolution of the International Law of the Sea (1990), 113. 16 Shearer (note 14), 329. 17 Art. 1 International Convention for the Unification of Certain Rules relating to Civil Jurisdiction in Matters of Collision. 18 See further Becker-Weinberg on Art. 229 MN 5–12. 19 The ‘Trade Resolve’ [1999] 4 SLR 424, para. 40 (Singapore). Also, s. 22 (1)(a) of the Admiralty Act 1988 (Australia).

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interpretative issues arise from the use of the phrase ‘the waters of the coastal State’ rather than territorial sea. O’CONNELL notes that ‘waters’ could refer to waters alongside the ship in port, internal waters, the territorial sea or high seas.20 However, he takes the view that this refers to territorial waters given that the provision is located in the section on the territorial sea and relates to actions against vessels in innocent passage. 21 However, it would seem logical that civil jurisdiction extend to waters where the coastal States has a genuine concern, such as damage occasioned to offshore installations in the exclusive economic zone (EEZ). Whilst this might fall within the scope of Arts. 56 and 60, the exercise of civil jurisdiction over vessels in the territorial sea for such matters would not offend against the balance of rights and duties in the territorial sea. ROTHWELL & STEPHENS are of the view that ‘waters’ includes the EEZ.22 Art. 28 (3) preserves the coastal State’s right to exercise jurisdiction over ships when lying 12 in the territorial sea or navigating though the territorial sea after leaving internal waters.

Subsection C Rules applicable to warships and other government ships operated for non-commercial purposes Article 29 Definition of warships For the purposes of this Convention, ‘warship’ means a ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline. Bibliography: David J. Bederman, Congress Enacts Increased Protections for Sunken Military Craft, AJIL 100 (2006), 649–663; David J. Bederman, Rethinking the Legal Status of Sunken Warships, ODIL 31 (2000), 97–125; Myron Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Bernard H. Oxman, The Regime of Warships Under the United Nations Convention on the Law of the Sea, VJIL 24 (1983), 809–863; J. Ashley Roach, Sunken Warships, MPEPIL, available at: http://www.mpepil.com; Dietrich Schindler/Jirˇ´ı Toman, The Laws of Armed Conflicts (1988) Documents: ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4–12; ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45; San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994); US Navy, The Commander’s Handbook on the Law of Naval Operations (2007) Cases: ITLOS, The ‘ARA Libertad’ Case (Argentina v. Ghana), Provisional Measures, Order of 15 December 2012, ITLOS Reports (2012), 332 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘For the purposes of this convention’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘warship’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

20 21 22

1 2 5 5 6

O’Connell (note 2), 873–874. Ibid. Donald R. Rothwell/Tim Stephens, The International Law of the Sea (2010), 425.

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I. Purpose and Function 1

Art. 29 defines the term ‘warship’ for the purposes of the Convention. This definition is important since warships are distinguished from other vessels, and subject to specific rules set forth in Art. 30 (compliance with laws and regulations of the coastal State), Art. 31 (responsibility of the flag State for damaged caused by warships, Art. 32 (general immunities), Art. 95 (immunity on the high seas), Art. 107 (seizure of pirate vessels), Art. 110 (rights of visit on the high seas), Art. 111 (hot pursuit), and Art. 236 (exemption from provisions regarding the protection and preservation of the marine environment).

II. Historical Background The definition of warship in Art. 29 was taken from Art. 8 of the Convention on the High Seas (High Seas Convention), which in turn was developed from Arts. 2–4 of the Convention relating to the Conversion of Merchant Ships into War-Ships 1907 (Convention VII). 1 The 1907 Hague Conference drafted a number of instruments, but did not specifically define warships. However, this was done indirectly in Convention VII, which enumerated the conditions to be met for the conversion of merchant ships into warships.2 This set forth three main conditions for warships relating to marking, control and military crewing. The approaches of these agreements have since been followed in other instruments, including the Institute of International Law’s Manual on the Laws of Naval War.3 3 Art. 32 (2) of the International Law Commission’s 1956 Draft Articles on the Law of the Sea defined a warship as 2

‘a ship belonging to the naval forces of a State and bearing the external marks distinguishing warships of its nationality, under the command of an officer duly commissioned by the government and whose name appears in the Navy List, and manned by a crew who are under regular naval discipline.’4

This was incorporated directly into Art. 8 of the High Seas Convention. This definition was given for the purpose of ‘these articles’ indicating that it only pertains to the High Seas Convention, and not the Convention on the Territorial Sea and Contiguous Zone, which contains relevant provisions on the passage of warships. However, this appears to be a drafting omission resulting from the decision to produce four independent instruments, rather than a single consolidated instrument.5 4 Early proposals in the Sea-Bed Committee dealing with innocent passage did not include a definition of the term ‘warship’. A proposal by Fiji at the 1973 session was the first to include a definition, and this was copied verbatim from the definition in the High Seas Convention. 6 During the Second Session of UNCLOS III, a proposal was advanced by the UK in similar terms, although it substituted the term ‘armed forces’ in place of references to ‘naval forces’ 1 ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GOAR 11th Sess. Suppl. 9, 12, 26 (Art. 32). 2 Convention Relating to the Conversion of Merchant Ships into War Ships, 18 October 1907, AJIL 2, No. 1/2 Suppl. (1908), 133–138. 3 Reproduced in: Dietrich Schindler/Jir ˇ´ı Toman, The Laws of Armed Conflicts (1988), 858–875. 4 ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4, 7 (Art. 32). 5 See Bernhard H. Oxman, The Regime of Warships under the United Nations Convention on the Law of the Sea, VJIL 24 (1983), 809, 812 (footnote 7). 6 Sea-Bed Committee, Fiji: Draft Articles Relating to Passage through the Territorial Sea, UN Doc. A/AC.138/ SC.II/L.42 and CORR. 1 (1973), GAOR 28th Sess., Suppl. 21 (A/9021-III), 91, 97 (Art. 12 (1)), was replaced by: Second Committee UNCLOS III, Fiji: Draft Articles Relating to Passage Through the Territorial Sea, UN Doc. A/ CONF.62/C.2/L.19 (1974), OR III, 196, 198 (Art. 12 (1)).

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or ‘Navy List’.7 NORDQUIST et al. note this reflects a trend towards the integration of armed forces since the 1958 High Seas Convention.8 The final wording of Art. 29 was agreed following further amendment to broaden the scope of the definition for the purposes of the ‘Convention’ rather than ‘articles’.9 A proposal by Argentina, Bangladesh, China, Democratic Yemen, Ecuador, Madagascar, Pakistan, Peru and Philippines to include submarines and other underwater vehicles in the Art. 29 was rejected. 10

III. Elements 1. ‘For the purposes of this convention’ The Art. 29-definition does not merely apply to the provisions on the territorial sea and 5 contiguous zone but rather to the entire Convention. This was confirmed in the ‘ARA Libertad’ Case: ‘[S]ome of the provisions in this Part [Part II] may be applicable to all maritime areas, as in the case of the definition of warships provided for in Art. 29 of the Convention.’11 This is significant since warships enjoy certain privileges and powers in other parts of the Convention and are distinct from other government ships and vessels operated for commercial purposes. Thus, warships enjoy complete immunity on the high seas (� Art. 96).12 Warships, military aircraft and other duly authorized ships or aircraft may carry out seizures on account of piracy (� Art. 107), exercise the right of visit on the high seas (� Art. 110), and exercise the right of hot pursuit (� Art. 111). Finally, warships, auxiliary craft or aircraft operated by the State on government non-commercial purposes are not subject to the provisions of the Convention relating to the protection and preservation of the marine environment (� Art. 236).

2. ‘warship’ Art. 29 does not require a ship to be armed to be considered as a warship. 13 Unlike the 6 High Seas Convention, neither does it require the ship to belong to the naval forces of a State and be under the command of an officer who appears in the Navy List and be manned by a crew who are under regular naval discipline. Instead it refers more generally to ‘armed forces’. This allows for inclusion of ships belonging to different branches of armed forces, including the army, air force and coastguard.14 It excludes vessels operated by insurgent, rebel or secessionists groups since these entities are not States. This definition of warship has been adopted in other operational instruments. For 7 example, Art. 13 (g) of the San Remo Manual on International Law Applicable to Armed Conflicts at Sea 1994 defines a warship as ‘a ship belonging to the armed forces of a State bearing the external marks distinguishing the character and nationality of such a ship, under the command of an officer duly commissioned by the 7 Second Committee UNCLOS III, United Kingdom: Draft Articles on the Territorial Sea and Straits, UN Doc. A/CONF.62/C.2/L.3 (1974), OR III, 183, 185 (Art. 26 (1)). 8 Myron Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 250. 9 Second Committee UNCLOS III, Malaysia et al.: Draft Articles on Navigation through the Territorial Sea, Including Straits Used for International Navigation, UN Doc. A/CONF.62/C.2/L.16 (1974), OR III, 192, 194. 10 Second Committee UNCLOS III, Informal Suggestion by Argentina et al., UN Doc. C.2/Informal Meeting/ 30 (1978, mimeo.), reproduced in: Renate Platzo¨der (ed.), Third United Nations Conference on the Law of the Sea: Documents, vol. V (1982), 39. 11 ITLOS, The ‘ARA Libertad’ Case (Argentina v. Ghana), Provisional Measures, Order of 15 December 2012, ITLOS Reports (2012), 332, para. 64. 12 See Guilfoyle on Art. 96 MN 12–16. 13 Oxman (note 5), 813. 14 Ibid.; the United States expressly includes coastguard vessels in the definition of warships, see US Navy, The Commander’s Handbook on the Law of Naval Operations (2007), para. 2.1.1.

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government of that State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline’.15

This same definition is used in the United States Commander’s Handbook on the Law of Naval Operations.16 8 The Convention is silent on the question of whether or not the definition applies to auxiliary craft, i. e. craft that are designed to support military vessels. Art. 13 (h) of the San Remo Manual defines these as vessels ‘other than a warship, that are owned by or under the exclusive control of the armed forces of a State and used for the time being on government non-commercial service’. This might indicate a separate status for such vessels. However, given the broad definition of warships and the scope for States to treat such vessels as warships, it is reasonable to include such vessels within the provisions on warships. In any event, such vessels are expressly included within Arts. 110, 111 and 236. 9 There is some doubt as to whether or not the definition of warship under Art. 29 includes sunken warships, since such vessels are, strictly speaking, no longer controlled or crewed. Whilst this does not matter from an operational perspective, it is of particular concern to the question of immunity from claims in respect of salvage or finds.17 The treatment of warships as underwater cultural heritage is not addressed directly by the Convention, although it is considered by the UNESCO Convention on the Protection of Underwater Cultural Heritage. There are divergent views on the immunity of sunken warships, with some arguing in favour of continuing immunity until abandonment,18 and others arguing that it is lost when the warship sinks and loses its function as a military vessel.19

Article 30 Non-compliance by warships with the laws and regulations of the coastal State If any warship does not comply with the laws and regulations of the coastal State concerning passage through the territorial sea and disregards any request for compliance therewith which is made to it, the coastal State may require it to leave the territorial sea immediately. Bibliography: William E. Butler, Innocent Passage and the 1982 Convention: The Influence of Soviet Law and Policy, AJIL 81 (1987), 331–347; Robin R. Churchill, The Impact of State Practice on the Jurisdictional Framework Contained in the LOS Convention, in: Alex G. Oude Elferink (ed.), Stability and Change in the Law of the Sea: The Role of the Law of the Sea Convention (2005), 91–143; Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); Ingrid Delupis, Foreign Warships and Immunity for Espionage, AJIL 78 (1984), 53–75; Erik Franckx, The USSR Position on the Innocent Passage of Warships through Foreign Territorial Waters, JMLC 18 (1987), 33–65; David Froman, Uncharted Waters: Non-Innocent Passage of Warships in the Territorial Sea, San DiegoLRev 21 (1983), 625–689; Shao Jin, The Question of Innocent Passage of Warships: After UNCLOS III, Marine Policy 13 (1989), 56–67; Francis Ngantcha, The Right of Innocent Passage and the Evolution of International Law of the Sea (1990); Myron Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Daniel P. O’Connell, The International Law of the Sea, vol. I (1982); Bernard H. Oxman, The Regime of Warships under the United Nations Convention on the Law of the Sea, VJIL 24 (1983), 809–863; Ivan A. Shearer, Problems of Jurisdiction and Enforcement Against Delinquent Vessels, ICLQ 35 (1986), 320–343 Documents: ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45

15

San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994). US Navy Handbook (note 14), para. 2.1.3. 17 David. J. Bederman, Congress Enacts Increased Protections for Sunken Military Craft, AJIL 100 (2006), 649– 663. 18 J. Ashley Roach, Sunken Warships, MPEPIL, paras. 3, 46, available at: http://www.mpepil.com. 19 David J. Bederman, Rethinking the Legal Status of Sunken Warships, ODIL 31 (2000), 97–125. 16

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1–3

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Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘comply with the laws and regulations of the coastal State’ . . . . . . . . . . . . . . . . . . . . . . 2. ‘the coastal State may require it to leave the territorial sea immediately’ . . . . . . . . 3. Prior Notification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 5 5 7 9

I. Purpose and Function Art. 30 outlines the steps that may be taken to ensure that warships comply with the 1 requirements of any laws and regulations that the coastal State may adopt concerning passage through the territorial sea under Art. 21. If a warship violates these requirements, the coastal State may request compliance and, if this is disregarded, require the warship to leave the territorial sea immediately. This article only refers to laws in relation to passage through the territorial sea. Compliance with criminal laws concerning activities on-board the warship or matters related to civil jurisdiction cannot be pursued through this article. Art. 30 is silent on what, if any, further steps can be taken to secure compliance, although Art. 25 may be assumed to apply. Flag State responsibility for any loss or damage to the coastal State that results from non-compliant behaviour by the warship is dealt with separately in Art. 31. 1

II. Historical Background In the early part of the 20th century, the question of the right of warships to innocent 2 passage remained contentious. Only once warships were recognised as enjoying the right of innocent passage did the question of compliance with rules concerning passage arise. Art. 30 has its origins in Art. 23 of the Convention on the Territorial Sea and Contiguous Zone (CTSCZ), which provides that ‘[i]f any warship does not comply with the regulations of the coastal State concerning passage through the territorial sea and disregards any request for compliance which is made to it, the coastal State may require the warship to leave the territorial sea’.

Initial proposals at the 1973 Session of the Sea-Bed Committee followed this basic approach. 2 3 Art. 23 CTSCZ was reiterated with minor drafting changes in a UK proposal and a joint proposal by Bulgaria, German Democratic Republic, Poland and USSR. 3 Other proposals advanced the right of the coastal State to suspend the passage of warships, and require warships to leave the territorial sea by a route determined by the coastal State. 4 At the Third Session of UNCLOS III, these proposals were combined to form a draft article, which read:

1

See Barnes on Art. 31 MN 4–5. Sea-Bed Committee, Cyprus et al.: Draft Articles on Navigation Through the Territorial Sea Including Straits Used for International Navigation, UN Doc. A/AC.138/SC.II/L.18 (1973), GAOR 28th Sess., Suppl. 21 (A/9021III), 3, 10 (Art. 23); Sea-Bed Committee, Malta: Preliminary Draft Articles on the Delimitation of Coastal State Jurisdiction in Ocean Space and on the Rights and Obligations of Coastal States in the Area under their Jurisdiction, UN Doc. A/AC.138/SC.II/L.28 (1973), GAOR 28th Sess., Suppl. 21 (A/9021-III), 35, 49 (Art. 35). 3 Second Committee UNCLOS III, United Kingdom: Draft Articles on the Territorial Sea and Straits, UN Doc. A/CONF.62/C.2/L.3 (1974), OR III, 183, 185 (Art. 26 (1)); Second Committee UNCLOS III, Bulgaria et al.: Draft Articles on the Territorial Sea, UN Doc. A/CONF.62/C.2/L.26 (1974), OR III, 203, 205 (Art. 27). 4 Second Committee UNLCOS III, Malaysia et al.: Draft Articles on Navigation through the Territorial Sea, Including Straits Used for International Navigation, UN Doc. A/CONF.62/C.2/L.16 (1974), OR III, 192, 194 (Art. 17); Sea-Bed Committee, Fiji: Draft Articles Relating to Passage through the Territorial Sea, UN Doc. A/ AC.138/SC.II/L.42 and CORR. 1 (1973), GAOR 28th Sess., Suppl. 21 (A/9021-III), 91; was replaced by Second Committee UNCLOS III, Fiji: Draft Articles Relating to Passage through the Territorial Sea, UN Doc. A/ CONF.62/C.2/L.19 (1974), OR III, 196, 198 (Art. 12 (4)). 2

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‘If any warship does not comply with the laws and regulations of the coastal State relating to passage through the territorial sea and disregards any request for compliance which is made to it, the coastal State may suspend the right of passage of such warship and may require it to leave the territorial sea by such safe and expeditious route as may be directed by the coastal State.’ 5

4

This was subsequently adopted as Art. 30 in the Informal Single Negotiating Text, but without any reference to the suspension of warship passage. 6 Further modifications were made at the Fourth Session in 1976 as a result of several States expressing dissatisfaction with the requirement for a non-compliant warship to leave the territorial sea ‘by such safe and expeditious route as may be directed by the coastal State’.7 It was considered that the officer in command of a ship was in the best place to decide the appropriate route for departure of the territorial sea, and that warships could not be directed by States other than the flag State. As a result, the phrase was replaced by the word ‘immediately’ in the Revised Single Negotiating Text.8 There were no further substantive changes to the text which was adopted in the draft Convention.

III. Elements 1. ‘comply with the laws and regulations of the coastal State’ The immunity of warships, as provided for under Art. 32, means that coastal States may not exercise enforcement jurisdiction against such vessels in the territorial sea. However, this does not exempt warships from prescriptive jurisdiction: Warships are under a duty to comply with the requirements of innocent passage and such laws and regulations adopted by the coastal State in accordance with Art. 21. 6 It is important to distinguish between violation of coastal State laws and regulations (� Art. 21) and non-innocent passage (� Art. 19) because there are different sanctions, or at least stages in the process of responding to each breach.9 A violation of coastal State law does not necessarily render the warship passage non-innocent. Only violations of coastal States laws that are also conditions of innocent passage would render passage non-innocent. This includes infringement of customs, fiscal, immigration and sanitary laws and regulations (Art. 19 (2) (g), Art. 21 (1)(h)), pollution (Art. 19 (2)(h); Art. 21 (1)(f)), fishing activities (Art. 19 (2)(i); Art. 21 (1)(d)-(e)), and research activities (Art. 19 (2)(j); Art. 21 (1)(g)). 10 Warships are only entitled to be present in third States territorial seas when exercising the right of innocent passage, so in such cases the coastal State is entitled to take steps in accordance with Art. 25, although this is essentially limited by Art. 30 to steps to remove the warship from the territorial sea. Of course, there is nothing in principle to prevent the coastal State from requesting the warship to ensure its passage remains innocent since its protective rights under Art. 25 are discretionary. In contrast, breaches of coastal State navigation and conservancy laws (i. e. Art. 21 (1)(a-c)) do not immediately result in non-innocent passage. In such cases, according to Art. 30, the coastal State is limited, in the first instance to informing the warship of the breach and giving it the opportunity to correct its conduct. Only if the warship fails to comply with this request can the 5

5 UNCLOS III, Consolidated Text on Innocent Passage, UN Doc. C.2/Blue Paper No.14 (1975, mimeo.), reproduced in: Renate Platzo¨der (ed.), Third United Nations Conference on the Law of the Sea: Documents, vol. IV (1982), 153, 159 (Provision 44). 6 UNCLOS III, Informal Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/PART II, OR IV, 152, 157 (Art. 30). 7 Myron Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 255. 8 UNCLOS III, Revised Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/REV.1/PART II (1976), OR V, 151, 158 (Art. 29). 9 David Froman, Uncharted Waters: Non-Innocent Passage of Warships in the Territorial Sea, San DiegoLRev 21 (1983), 625, 664. 10 See Barnes on Art. 19 MN 18–24.

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7–9

Art. 30

coastal State require it to leave the territorial sea. This order may be issued regardless of whether or not the warship passage is innocent.

2. ‘the coastal State may require it to leave the territorial sea immediately’ Art. 30 does not specify what further steps the coastal State may take to secure compliance 7 with its request. Neither does the International Law Commission’s Commentary on Art. 25 CTSCZ provide any assistance.11 NORDQUIST et al. observe that requiring a warship to leave the territorial sea immediately is the ‘sole recourse available to a coastal State’. 12 OXMAN notes this is the classic remedy available to the State lacking enforcement jurisdiction, and regards it equivalent to the remedy of expulsion from territory for misbehaving diplomats. 13 However, this limitation may simply be a conventional one and other forcible measures may be taken under general international law, including countermeasures. Art. 25 permits steps to be taken to prevent passage which is non-innocent. The key issue 8 is then whether a warship’s failure to comply with a request to leave the territorial sea renders its passage non-innocent. This interpretation is one that is open to the coastal State, although it seems reasonable to require some investigation of the situation by the coastal State, and to allow the warship an opportunity to correct its conduct. CHURCHILL & LOWE take the position that the coastal State ‘may use any force necessary’ to compel a warship to leave the territorial sea.14 Likewise, DELUPIS regards Art. 30 as appropriate for milder cases of violations of local laws, and that force may be used in more serious cases. 15 If force is permissible, then it must necessarily comply with general requirements of necessity and proportionality. It is suggested that coastal States should first consider other appropriate measures, such as diplomatic protest before resorting to force.

3. Prior Notification Neither Art. 30, nor any other provision in Part II, Section 3, requires the prior notification 9 or authorization of entry into the territorial sea by warships for the purpose of exercising the right of innocent passage. The issue was vigorously debated during the conference proceedings.16 Although no consensus was reached on the matter, progress was secured by sidestepping the issue, leaving the matter to be addressed implicitly in Art. 19 on the meaning of innocent passage and Art. 25 on the rights of protection of the coastal States, as well as general international law. Prior authorisation indicates that coastal States may control the enjoyment of the right of innocent passage, and this is contrary to the other provisions of Section 3. Notification is not incompatible with the regulatory authority of the coastal State, under Art. 21, but remains indeterminate as a matter of conventional law. Hence, questions of prior notification should be considered according to the practice of States in light of the general provisions on innocent passage.17 11 ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GOAR 11th Sess. Suppl. 9, 12, 23 (Art. 25). 12 Nordquist/Nandan/Rosenne (note 7), 255; see also Ivan A. Shearer, Problems of Jurisdiction and Enforcement Against Delinquent Vessels, ICLQ 35 (1986), 320, 325. 13 Bernard H. Oxman, The Regime of Warships under the United Nations Convention on the Law of the Sea, VJIL 24 (1983), 809, 817. 14 Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 99; also Daniel P. O’Connell, The International Law of the Sea, vol. I (1982), 297. 15 Ingrid Delupis, Foreign Warships and Immunity for Espionage, AJIL 78 (1984), 53, 73. 16 See William E. Butler, Innocent Passage and the 1982 Convention: The Influence of Soviet Law and Policy, AJIL 81 (1987), 331–347; Froman (note 9), 639 et seq.; Francis Ngantcha, The Right of Innocent Passage and the Evolution of International Law of the Sea (1990), 142 et seq.; Erik Franckx, The USSR Position on the Innocent Passage of Warships through Foreign Territorial Waters, JMLC 18 (1987), 33–65; Shao Jin, The Question of Innocent Passage of Warships: After UNCLOS III, Marine Policy 13 (1989), 56–67. 17 Robin R. Churchill, The Impact of State Practice on the Jurisdictional Framework Contained in the LOS Convention, in: Alex G. Oude Elferink (ed.), Stability and Change in the Law of the Sea: The Role of the Law of the Sea Convention (2005), 91, 111–114.

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Part II. Territorial sea and contiguous zone

Article 31 Responsibility of the flag State for damage caused by a warship or other government ship operated for non-commercial purposes The flag State shall bear international responsibility for any loss or damage to the coastal State resulting from the non-compliance by a warship or other government ship operated for non-commercial purposes with the laws and regulations of the coastal State concerning passage through the territorial sea or with the provisions of this Convention or other rules of international law. Bibliography: James Crawford/Alain Pellet/Simon Olleson (eds.), The Law of International Responsibility (2010) Documents: ILC, Report of the International Law Commission: Draft Articles on the Responsibility of International Organizations, UN Doc. A/66/10 (2011), GAOR 66th Sess. Suppl. 10, 54–68 (DARIO); ILC, Responsibility of States for Internationally Wrongful Acts, GA Res. 56/83 of 12 December 2001, Annex Cases: ECtHR, Behrami and Behrami v. France, Saramati v France, Germany and Norway, Admissibility, Decision of 2 May 2007, available at: http://hudoc.echr.coe.int/webservices/content/pdf/001-80830?TID=knhmsepxft; Gerechtshof, Mustafic et al. v. the Netherlands, Judgment of 5 July 2011, LJN: BR5386, available at http:// zoeken.rechtspraak.nl/detailpage.aspx?ljn=BR5386; Gerechtshof, Nuhanovic v. Netherlands, Judgment of 5 July 2011, ILR 153, 467; ITLOS, The ‘ARA Libertad’ Case (Argentina v. Ghana), Order of 12 December 2012, ITLOS Reports (2012), 332; Mexico/USA General Claims Commission, Teodoro Garcı´a and M. A. Garza (United Mexican States) v. United States of America, 23 November 1926, RIAA IV, 119 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘flag State shall bear international responsibility’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Extent of Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 4 4 5

I. Purpose and Function 1

Art. 31 provides that the flag State shall be responsible for any loss or damage caused by warships or State vessels operated for non-commercial purposes resulting from non-compliance with the laws of the coastal State relating to passage through the territorial sea. It further extends this responsibility to non-compliance with other provisions of the Convention or rules of international law. This is noted as an exception to the general immunity of warships as described in Art. 32.1

II. Historical Background Until UNCLOS III, there was no conventional rule recognising the international responsibility of the flag State for any loss or damage to the coastal State resulting from non-compliance by a warship or public vessel. The 1958 Geneva Conventions were silent on this matter. 3 Art. 31 originated in a proposal by Fiji at the 1973 Sea-Bed Committee. This noted the responsibility of the flag State for non-compliance with coastal State laws, or provisions of the Convention or rules of international law, and which caused any damage to the coastal State, including its environment, facilities and property.2 This was uncontroversial and was 2

1

See generally Barnes on Art. 32. Sea-Bed Committee, Fiji: Draft Articles Relating to Passage through the Territorial Sea, UN Doc. A/AC.138/ SC.II/L.42 and Corr. 1 (1973), GAOR 28th Sess. Suppl. 21 (A/9021-III), 91, 98 (Art. 14), was replaced by Second 2

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4–5

Art. 31

followed in 1974, at the Second Session of UNCLOS III, by three similar proposals that contained only minor textual differences, including references to ‘international responsibility’, rather than ‘liability’.3 The Revised Single Negotiating Text, as agreed in 1976, contained further minor drafting changes.4 It also omitted any reference to the objects of damage. This was unnecessary given the existing reference to ‘any loss or damage’.

III. Elements 1. ‘flag State shall bear international responsibility’ Art. 31 confirms flag State responsibility for the conduct of its warships and public vessels 4 not engaged in commercial operations. It does not detail the mode of responsibility, leaving this to be determined by general rules on State responsibility.5 Of note is Art. 304, which provides that: ‘provisions of the Convention regarding responsibility and liability for damage are without prejudice to the application of existing rules and the development of further rules regarding responsibility and liability under international law.’

Under general international law the acts of armed forces are attributable to the State. 6 It is possible for warships to act under the control of another State or agency such as the North Atlantic Treaty Organization (NATO), especially during peacekeeping or maritime security operations.7 In principle, such entities may incur responsibility for the acts of warships where they have effective control over the conduct of the vessel. 8 However, courts have been cautious about finding a lack of control by the State of nationality of armed forces in situations where there are multiple entities with control over an operation. 9

2. Extent of Responsibility Responsibility may arise for breaches of laws and regulations on innocent passage, namely 5 Art. 21.10 Art. 31 is paralleled by Art. 42 (5)11 concerning responsibility in respect of transit passage through straits. Although Art. 31 is located in the section on the territorial sea, it is relevant to the rest of the Convention, hence the general reference to other provisions of the Committee UNCLOS III, Fiji: Draft Articles Relating to Passage through the Territorial Sea, UN Doc. A/ CONF.62/C.2/L.19 (1974), OR III, 196, 198 (Art. 14). 3 Second Committee UNCLOS III, United Kingdom: Draft Articles on the Territorial Sea and Straits, UN Doc. A/CONF.62/C.2/L.3 (1974), OR III, 183, 185 (Art. 28); Second Committee UNCLOS III, Malaysia et al.: Draft Articles on Navigation through the Territorial Sea, Including Straits Used for International Navigation, UN Doc. A/CONF.62/C.2/L.16 (1974), OR III, 192, 194 (Art. 19); UNCLOS III Fiji: Draft Articles (note 2), 198 (Art. 14). 4 UNCLOS III, Informal Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/REV.1/PART II (1975), OR IV, 152, 158 (Art. 30). 5 See ILC, Responsibility of States for Internationally Wrongful Acts, GA Res. 56/83 of 12 December 2001, Annex (ASR); see generally, James Crawford/Alain Pellet/Simon Olleson (eds.), The Law of International Responsibility (2010). 6 See Mexico/USA General Claims Commission, Theodor Garcia and M. A. Garza (United Mexican States) v. United States, 23 November 1926, RIAA IV, 119, 132. 7 On the attribution of conduct to international organizations, see Chapter II of the Articles on the Responsibility of International Organizations: ILC, Report of the International Law Commission: Draft Articles on the Responsibility of International Organizations, UN Doc. A/66/10 (2011), GAOR 66th Sess. Suppl. 10, 54– 68 (DARIO). 8 ECtHR, Behrami and Behrami v. France, Saramati v France, Germany and Norway, Admissibility, Decision of 2 May 2007, paras. 132–141; Art. 6 ASR. 9 See Gerechtshof, Mustafic et al. v. the Netherlands, Judgment of 5 July 2011, LJN: BR5386, available at http:// zoeken.rechtspraak.nl/detailpage.aspx?ljn=BR5386; Gerechtshof, Nuhanovic v. Netherlands, Judgment of 5 July 2011, ILR 153, 467. 10 For further information, see Barnes on Art. 21. 11 See Jia on Art. 42 MN 19–20.

Barnes

249

Art. 32

1–2

Part II. Territorial sea and contiguous zone

Convention.12 Of relevance are the seizure of suspected pirate vessels without adequate basis in law (� Art. 106), the unfounded exercise of right of visit (� Art. 110 (3)), and the unjustified interdiction of vessels in hot pursuit (� Art. 111 (8)). The reference to international law reaffirms that potential responsibility is not merely limited to conventional rules.

Article 32 Immunities of warships and other government ships operated for non-commercial purposes 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 non-commercial purposes. Bibliography: James Crawford, Execution of Judgments and Foreign Sovereign Immunity, AJIL 75 (1981), 820–869; Ingrid Delupis, Foreign Warships and Immunity for Espionage, AJIL 78 (1984), 53–75; Hazel Fox, The Law of State Immunity (2008); Don W. Greig, Specific Exceptions to Immunity under the International Law Commission’s Draft Articles, ICLQ 38 (1989), 560–588; Douglas Guilfoyle, Article 16, in: Roger O’Keefe/Christian Tams (eds.), The United Nations Convention on the Immunities of States and their Property: A Commentary (2013), 259–276; Bernard H. Oxman, The Regime of Warships under the United Nations Convention on the Law of the Sea, VJIL 24 (1983), 809–863; Thamarappallil Kochu Thommen, Legal Status of Government Merchant Ships in International Law (1962); Xiaodong Yang, State Immunity in International Law (2012) Documents: US Navy, The Commander’s Handbook on the Law of Naval Operations (2007) Cases: The Charkeih [1873] LR 4 A&E 59 (UK); The Prins Frederik [1820] 4 Dods. 451 (UK); The Parlement Belge [1880] 5 PD 197 (UK); ITLOS, The ‘ARA Libertad’ (Argentina v. Ghana), Provisional Measures, Order of 15 December 2012, ITLOS Reports (2012), 332; Chung Chi Cheung v. The King, [1938] 4 All ER 786 (UK); Rechtsbank Amsterdam (District Court of Amsterdam), Wijsmuller Salvage BV v. ADM Naval Services, Judgment of 19 November 1987, NYIL 20 (1989), 294; The Schooner Exchange v. McFaddon, 11 U.S. 116 (1812) Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘nothing in this Convention affects the immunities of’’ . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘government ships operated for non-commercial purposes’. . . . . . . . . . . . . . . . . . . . . 3. Immunity of Vessels under General International Law . . . . . . . . . . . . . . . . . . . . . . . . .

1 4 9 9 11 13

I. Purpose and Function This article restates the immunity under general international law for warships and vessels operated for government non-commercial purposes. This position continues except as provided for in Arts. 30 and 31. 2 It is not clear if Art. 32 regulates immunity or merely references an existing rule of general international law. It can be contrasted with Art. 95,1 which clearly stipulates that warships on the high seas enjoy complete immunity from States other than the flag State. Art. 32 is more complex since it does not explicitly state a right of immunity, but rather relies upon the existence of a general right and subjects this to certain conventional exceptions. This aspect of Art. 32 was at issue in the ‘ARA Libertad’ Case.2 The Tribunal decided that it had prima 1

12 See for example the Tribunal’s remarks in respect of Art. 31 in the ITLOS, The ‘ARA Libertad’ Case (Argentina v. Ghana), Provisional Measures, Order of 15 December 2012, ITLOS Reports (2012), 332, para. 64. 1 See Guilfoyle on Art. 95 MN 5–7. 2 ITLOS, The ‘ARA Libertad’ Case (Argentina v. Ghana), Provisional Measures, Order of 15 December 2012, ITLOS Reports (2012), 332.

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Immunities of warships

3–6

Art. 32

facie jurisdiction to deal with provisional measures, since Ghana and Argentina were in dispute about the meaning of Art. 32, but it did not explicitly determine the meaning of Art. 32.3 However, Judges WOLFRUM and COT issued a strongly worded disagreement with the Tribunal’s reasoning in their Joint Separate Opinion, which explicitly categorized Art. 32 as a rule of reference and not a rule of incorporation.4 As indicated in the commentary on Arts. 30 and 31, the Convention does not except 3 certain public vessels from the prescriptive jurisdiction of the coastal State. 5 As such, warships and other non-commercial government vessels remain subject to the requirements of innocent passage under Arts. 19–21, and coastal State laws and regulations adopted in conformity with Arts. 21 and 22.6 They also remain subject to the coastal State’s right of protection against non-innocent passage under Art. 25.

II. Historical Background Domestic courts have recognised the immunity of State-owned or operated vessels since 4 the early nineteenth century, although the precise scope and operation of this immunity was subject to variations arising from the peculiarities of domestic law. 7 The first clear recognition of this immunity was made by the US Supreme Court in The Schooner Exchange v. McFaddon.8 This was followed in a number of important English cases including The Prins Frederik,9 The Charkeih,10 and The Parlement Belge.11 In the early part of the twentieth century, a number of treaties dealing with the liabilities of 5 ships under private maritime law generally excluded warships and vessels on public service from their application.12 A general regime relating to the immunity of State vessels was set forth in the 1926 International Convention for the Unification of Certain Rules Concerning the Immunity of State-Owned Ships.13 Although it received limited ratifications, it helped influence domestic practice on immunity of State vessels. The general principle of immunity was recognised by the Institut de Droit International Resolutions of 1928. 14 When the 1930 Hague Codification Conference failed to produce an agreement on the law of the sea, the matter received no further attention until the International Law Commission began its preparatory work for UNCLOS I. The Convention on the Territorial Sea and the Contiguous Zone (CTSCZ) was developed 6 against a background of increasing restrictions on the immunity of public vessels. In the light 3

Ibid., paras. 62–66. The ‘ARA Libertad’ Case (note 2), Separate Opinion of Judge Wolfrum and Judge Cot, paras. 38–46, available at: http://www.itlos.org/fileadmin/itlos/documents/cases/case_no.20/C20_Ord_15.12.2012_SepOp_Wolfrum-Cot_E_corr.pdf. 5 See: Barnes on Art. 30 MN 5; Barnes on Art. 31 MN 4. 6 See Bernard H. Oxman, The Regime of Warships under the United Nations Convention on the Law of the Sea, VJIL 24 (1983), 809, 818; see also Barnes on Art. 21 MN 25. 7 See the commentary on draft Art. 19 in: ILC, Sixth Report on Jurisdictional Immunities of States and Their Property by Mr. Sompong Sucharitkul, Special Rapporteur, UN Doc. A/CN.4/376 and ADD. 1 and 2 (1984), 6, 53. 8 The Schooner Exchange v. McFaddon, 11 US 116 (1812). 9 The Prins Frederik [1820] 4 Dods. 451 (UK). 10 The Charkeih [1873] LR 4 A&E 59 (UK). 11 Court of Appeal, The Parlement Belge [1880] 5 PD 197 (UK). 12 See Art. 11 of the International Convention for the Unification of Certain Rules of Law with Respect to Collisions between Vessels, 23 September 1910, CTS 212, 178; Art. 14 of the International Convention for the Unification of Certain Rules of Law relating to Assistance and Salvage at Sea, 23 September 1910, UKTS 4 (1914) Cd. 6667; Art. 13 of the Geneva Statute on the International Regime of Maritime Ports, 9 December 1923, LNTS 58, 287. 13 International Convention for the Unification of Certain Rules concerning the Immunity of State-Owned Ships of 10 April 1926, LNTS 176, 199. 14 Art. 26 of Re `glement sur le re´gime des navires de mer et de leurs e´quipages dans les ports e´trangers en temps de paix, available at: http://www.idi-iil.org/idiF/resolutionsF/1928_stock_02_fr.pdf. 4

Barnes

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Art. 32

7–10

Part II. Territorial sea and contiguous zone

of this, Art. 22 of the CTSCZ, from which Art. 32 originated, was designed to ensure nothing in the Convention would affect the immunity of government vessels not used for commercial purposes.15 7 The next significant developments were at UNCLOS. At the 1973 session of the Sea-Bed Committee, proposals by a group of eight States and a separate proposal from Malta largely repeated the wording from the CTSCZ.16 In 1974, a Fijian proposal introduced a new element on warships, providing that ‘nothing in these articles affects the immunities which warships enjoy under the provisions of these articles or other rules of international law’. 17 As a result two parallel provisions on the immunity of warships and government vessels operated for noncommercial purposes formed the basis of discussion. The approach remained largely the same after the Second Session of UNCLOS III in 1974, and the two parallel provisions were used in the Main Trends Working Paper.18 Separate provisions were retained in the Informal Single Negotiating Text.19 At the Fourth Session in 1976, the two articles were amalgamated to form what is now Art. 32.20 The text remained unchanged until its final adoption. 8 The immunity of certain public vessels has since been addressed in Art. 16 of the 2004 United Nations Convention on the Jurisdictional Immunities of States and their Property. This provides a more detailed framework for immunity than Art. 32.21

III. Elements 1. ‘nothing in this Convention affects the immunities of’ Although Art. 32 is located in Part II, dealing with the territorial sea, it is also applicable to other maritime zones. The phrase ‘nothing in this Convention’ indicates that it is not limited to Part II. This interpretation is reinforced by the ITLOS decision in the ‘ARA Libertad’ Case, which found the provision to be at issue in a dispute concerning the arrest of a warship in internal waters, at least as regards providing a basis for jurisdiction. 22 It further seems logical to hold it applicable to the contiguous zone, straits used for international navigation and archipelagic waters. However, given that Art. 95 specifically relates to immunity of vessels on the high seas (and by virtue of Art. 58,23 the exclusive economic zone), it seems redundant to hold it applicable to the high seas.24 10 Immunity only extends to relevant vessels, which for the time being are used on governmental non-commercial service. Although Art. 32 does not refer to any timeframe, 9

15

UNCLOS I, Preliminary Meetings, UN Doc. A/CONF.13/38 (1958), OR II, 66 (Art. 22). Sea-Bed Committee, Cyprus et al.: Draft Articles on Navigation through the Territorial Sea Including Straits Used for International Navigation, UN Doc. A/AC.138/SC.II/L.18 (1973), GAOR 28th Sess. Suppl. 21 (A/9021III), 3, 9 (Art. 20); Sea-Bed Committee, Malta: Preliminary Draft Articles on the Delimitation of Coastal State Jurisdiction in Ocean Space and on the Rights and Obligations of Coastal States in the Area under their Jurisdiction, UN Doc. A/AC.138/SC.II/L.28 (1973), GAOR 28th Sess. Suppl. 21 (A/9021-III), 35, 48 (Art. 31). 17 Sea-Bed Committee, Fiji: Draft Articles Relating to Passage through the Territorial Sea, UN Doc. A/AC.138/ SC.II/L.42 and CORR. 1 (1973), GAOR 28th Sess. Suppl. 21 (A/9021-III), 91, 98 (Art. 14); was replaced by Second Committee UNCLOS III, Fiji: Draft Articles Relating to Passage through the Territorial Sea, UN Doc. A/ CONF.62/C.2/L.19 (1974), OR III, 196, 198 (Arts. 11 and 13). 18 UNCLOS III, Statement of Activities of the Conference During Its First and Second Sessions, UN Doc. A/ CONF.62/L.8/REV.1 (1974), OR III, 93, 114. 19 UNCLOS III, Informal Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/PART II (1975), OR IV, 152, 157 (Arts. 28 and 31). 20 UNCLOS III, Revised Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/REV.1/PART II (1976), OR V, 151, 158 (Art. 31). 21 Douglas Guilfoyle, Article 16, in: Roger O’Keefe/Christian Tams (eds.), The United Nations Convention on Jurisdictional Immunities of States and Their Property: A Commentary (2013), 259–276. 22 The ‘ARA Libertad’ Case (note 2), paras. 62–63. 23 See Proelss on Art. 58 MN 11–15. 24 Oxman (note 6), 816. 16

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Barnes

Immunities of warships

11–13

Art. 32

this is implicit in the operational aspect of immunity. Such vessels cannot be boarded without the permission of the commanding officer. Vessels are immune from local taxes. Immunity applies to both the vessel and to personnel, weapons, stores or other property onboard the vessel.25 As indicated in the United Nations Convention on the Jurisdictional Immunities of States and their Property, immunity may be invoked in respect of proceedings arising out of collisions and navigational accidents, salvage operations, repairs to the ship and other contracts relating to the vessel, and pollution incidents.26

2. ‘government ships operated for non-commercial purposes’ Art. 32 refers to ‘government ships operated for non-commercial purposes’. This would 11 appear to include vessels ancillary to warships, such as troop carriers, supply ships, and hospital ships. Other vessels serving a public function include: coastguard vessels, icebreakers, customs and immigration vessels, public operated hydrographic survey and research vessels, royal and presidential ships. Art. 32 adopts a functional approach, rather than one based upon the ownership of the vessel. This is in line with Art. I of the 1934 Protocol to the Brussels Convention, which refers also to ‘ships on charter to a State, whether for time or for voyage, while exclusively engaged on governmental and non-commercial service’. A proposal referring to ships ‘owned or operated by a State’ was rejected during the drafting of Art. 32. 27 A functional test for ‘non-commercial purposes’ may be difficult to apply in practice. For 12 example, it may be questioned whether immunity extends to vessels carrying commercial cargo when engaged in technical assistance or emergency aid, or more general developmental activities.28 In practice, this will depend upon how courts seized of a matter will construe the extent of immunity under domestic law. The doctrine of restrictive immunity may serve to restrict the extension of immunity to a wider range of vessels, at least in the absence of clear legislation or direction from the State.

3. Immunity of Vessels under General International Law The immunity of warships and other non-commercial public ships is well established in 13 international law.29 Although the precise contours of immunity have varied over time, the general principle has been widely accepted in domestic legal proceedings. 30 It is a specific incidence of the general immunity of States from foreign courts’ adjudicative and enforcement jurisdiction. This flows from the equality and independence of States. As with State immunity in general, this serves to facilitate a State’s capacity to perform its public functions. International law supports a doctrine of restrictive immunity, meaning that immunity does not extend to private or commercial transactions.31 Given that Art. 32 is to be understood in light of general international law on immunity, care should be taken to appreciate trends in this dynamic area of law. 25 US Navy, The Commander’s Handbook on the Law of Naval Operations (2007), para. 2.1.1; also Art. 1 of the Additional Protocol of the 1926 International Convention for the Unification of Certain Rules Concerning the Immunity of State-Owned Vessels, 24 May 1934, LNTS 179, 199, which refers to cargoes aboard vessels. 26 UNCLOS III, Revised Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/REV.1/PART II (1976), OR V, 151 (Art. 16 (3)). 27 UNCLOS III, Report of the Chairman of the Drafting Committee, UN Doc. A/CONF.62/L.57/REV.1 (1980), OR XIV, 114, 118 (Section VI). 28 Don W. Greig, Specific Exceptions to Immunity under the International Law Commission’s Draft Articles, ICLQ 38 (1989), 560, 579–582. 29 Thamarappallil Kochu Thommen, Legal Status of Government Merchant Ships in International Law (1962), 3–8; James Crawford, Execution of Judgments and Foreign Sovereign Immunity, AJIL 75 (1981), 820, 862; Ingrid Delupis, Foreign Warships and Immunity for Espionage, AJIL 78 (1984), 53, 55. 30 Chung Chi Cheung v. The King [1938] 4 All ER 786 (UK); Rechtsbank Amsterdam, Wijsmuller Salvage BV v. ADM Naval Services, Judgment of 19 November 1987, NYIL 20 (1989), 294. 31 Hazel Fox, The Law of State Immunity (2008), 230–232; Xiaodong Yang, State Immunity in International Law (2012), 11–19.

Barnes

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Section 4 Contiguous zone Article 33 Contiguous zone 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. 2. The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured. Bibliography: Hildebrando Accioly, La zone contigu€ T et le droit de poursuite en haute mer, in: Melanges en I’honneur de Gilbert Gidel (Paris 1961), 1–13; Aristotelis B. Alexopoulos, Some Thoughts on the Concept of the Contiguous Zone and its Potential Application to the Greek Seas: Comment, in: Anastasia Strati, Maria Gavouneli and Nikolaos Skourtos (eds.), Unresolved Issues and New Challenges to the Law of the Sea: Time before and Time after (The Hague 2006), 259–270; Christer Ahlstro¨ m, The Proliferation Security Initiative: International Law Aspects of the Statement of Interdiction Principles, SIPRI Yearbook (2005), 741–767; Lewis M. Alexander, International Perspective on Maritime Boundary Disputes Involving Korea, Japan and China, Korea Observer 30 (1999), 1–7; David H. Anderson, Coastal State Jurisdiction and High Sea Freedoms in the EEZ in the Light of the Saiga Case, in: Clive R. Symmons (ed.), Selected Contemporary Issues in the Law of the Sea (2011), 105–118; Nuno Marques Antunes, Towards the Conceptualisation of Maritime Delimitation: Legal and Technical Aspects of a Political Process (2003); Richard Barnes, The International Law of the Sea and Migration Control, in: Bernard Ryan/Valsamis Mitsilegas (eds.), Extraterritorial Immigration Control: Legal Challenges (2010), 103– 150; Petri B. Borgo, De dominio serenissimae genuinsis reipublica in mari ligustico (1641); James L. Brierly, The Doctrine of the Contiguous Zone and the Dicta in Croft v. Dunphy, BYIL 14 (1933), 155–157; Philip Marshall Brown, Protective Jurisdiction, AJIL 34 (1940), 112–116; Michael Byers, Policing the High Seas: The Proliferation Security Initiative, AJIL 98 (2004), 526–545; Hugo Caminos, Contiguous Zone, in: Ru¨diger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (MPEPIL), vol. II (3nd edn. 2012), 714–719; James Carlson, Presidential Proclamation 7219: Extending the United States’ Contiguous Zone – Didn’t Someone Say This Had Something to Do with Pollution?, U. Miami L. Rev. 55 (2001), 487–526; Jonathan I. Charney, Rocks That Cannot Sustain Human Habitation, AJIL 93 (1999), 863–878; Aldo Chircop/David Dzidzornu/Jose Guerreiro/Catarina Grilo, The Maritime Zones of East African States in the Law of the Sea: Benefits Gained, Opportunities Missed, African JICL 16 (2008), 121–150; Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); Harm M. Dotinga/Alex G. Oude Elferink, The Netherlands: Establishment of a Contiguous Zone, IJMCL 22 (2007), 317– 330; Gerald Fitzmaurice, Some Results of the Geneva Conference on the Law of the Sea, ICLQ 8 (1959), 73–121; Christopher J. French, Eighteenth-Century Shipping Tonnage Measurements, Journal of Economic History 33 (1973), 434–443; Thomas W. Fulton, The Sovereignty of the Sea (1911); Maria Gavouneli, Functional Jurisdiction in the Law of the Sea (2007); Gilbert Gidel, Le droit international public de la mer: Tome 3: La mer territoriale et la zone contigu€ T (1934, reprinted 1981); Bill Gilmore, Hovering Acts, in: Ru¨diger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (MPEPIL), vol. IV (3nd edn. 2012), 1010–1013; Moritaka Hayashi, Japan: New Law of the Sea Legislation, IJMCL 12 (1997), 570–580; Philip C. Jessup, The Law of Territorial Waters and Maritime Jurisdiction (1927); Anja Klug/Tim Howe, The Concept of State Jurisdiction and the Applicability of the Non-Refoulement Principle to Extraterritorial Interception Measures, in: Bernard Ryan/Valsamis Mitsilegas (eds.), Extraterritorial Immigration Control: Legal Challenges (2010), 69–102; Tommy T. B. Koh, The Territorial Sea, Contiguous Zone, Straits and Archipelagos under the 1982 Convention on the Law of the Sea, Malaya Law Review 29 (1987), 163–199; Barbara Kwiatkowska, Decisions of the World Court Relevant to the UN Convention on the Law of the Sea: A Reference Guide (2nd edn. 2010); Park Hee Kwon, The Law of the Sea and Northeast Asia: A Challenge for Cooperation (2000); Rainer Lagoni, Marine Archa¨ologie und sonstige auf dem Meeresboden gefundene Gegensta¨nde, AVR 44 (2006), 328–362; Umberto Leanza, Le re´gime juridique international de la me´diterrane´e, RdC 236 (1994), 127–459; Alan V. Lowe, The Development of the Concept of the Contiguous Zone, BYIL 52 (1981), 109–169; Hunter Miller, The Hague Codification Conference, AJIL 24 (1930), 674–693; Erik J. Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution (1998); Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); John E. Noyes/William J. Clinton, Current Legal Developments: United States – Establishment of a 24-Mile US Contiguous Zone, IJMCL 15 (2000), 269–274; Ernest Nys, Les origines du droit

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international (1894); Daniel P. O’Connell, The International Law of the Sea, vol. I (1982); Shigeru Oda, The Concept of the Contiguous Zone, ICLQ 11 (1962), 131–153; Giulio Pace, De dominio maris adriatico (1619); Choon-Ho Park, The 50-Mile Military Boundary Zone of North Korea, AJIL 72 (1978), 866–875; Nicholas M. Poulantzas, The Right of Hot Pursuit in International Law (2nd edn. 2002); Alexander Proelss, Rescue at Sea Revisited: What Obligations Exist Towards Refugees?, SIMPLY 376 (2008), 1–39; Jean-Pierre Que´neudec, La France et le droit de la mer, in: Tullio Treves/Laura Pineschi (eds.), The Law of the Sea: The European Union and its Member States (1997), 151–198; Jesse S. Reeves, The Codification of the Law of Territorial Waters, AJIL 24 (1930), 486–499; Nasila S. Rembe, Africa and the International Law of the Sea (1980); J. Ashley Roach/Robert W. Smith, Excessive Maritime Claims (3rd edn. 2012); Bernard Ryan/Valsamis Mitsilegas (eds.), Extraterritorial Immigration Control: Legal Challenges (2010); John Selden, De mare clausum (1635, translated 1663); Louis B. Sohn/John E. Noyes, Cases and Materials on the Law of the Sea (2004); Wesley A. Sturges, National Prohibition and International Law, Yale Law Journal 32 (1923), 259–266; Janusz Symonides, Origin and Legal Essence of the Contiguous Zone, ODIL 20 (1989), 203–211; Jan Hendrik W. Verzijl, International Law in Historical Perspective, vol. IV (1971); Henry Wheaton, Enquiry into the Validity of the British Claim to a Right of Visitation and Search of American Vessels Suspected to be Engaged in the African Slave-Trade (1842); Marina Vokic´ Zˇ uzˇul/Valerija Filipovic´, Vanjski pojas Republike Hrvatske (The Contiguous Zone of the Republic of Croatia), Poredbeno pomorsko pravo (Comparative Maritime Law) 49 (2010), 73–99 Documents: Commonwealth Secretariat, Ocean Management: A Regional Perspective: The Prospects for Commonwealth Maritime Cooperation in Asia and Pacific (1984); Declaration of Panama´ of 3 Oct. 1939, Consultative Meeting of Foreign Ministers of the American Republics, AJIL 34, No. 1 Suppl. (1940), 1–20; Harvard Law School, Draft Convention and Comments on Territorial Waters, AJIL 23, Suppl. No. 2 (Codification of International Law) (1929), 243–380; ILA, Report of the 27th Conference of the International Law Association (1912); ILC, Comments by Governments on the Provisional Articles Concerning the Re´gime of the High Seas and the Draft Articles on the Re´gime of the Territorial Sea adopted by the International Law Commission at its Seventh Session in 1955, UN Doc. A/CN.4/99/ADD. 1 (1956), reproduced in: ILC Yearbook (1956), vol. II, 80–88; ILC, Comments by Governments on the Provisional Articles Concerning the Re´gime of the High Seas and the Draft Articles on the Re´gime of the Territorial Sea adopted by the International Law Commission at its Seventh Session in 1955, UN Doc. A/CN.4/99/ADD. 8 (1956), reproduced in: ILC Yearbook (1956), vol. II, 60–61; ILC, Report of the International Law Commission, UN Doc. A/1316 (1950), GAOR 5th Sess. Suppl. 12, reproduced in: ILC Yearbook (1950), vol. II, 364–385; ILC, Report of the International Law Commission, UN Doc. A/2456 (1953), GAOR 5th Sess., reproduced in: ILC Yearbook (1953), vol. II, 200–269; ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45; Institut de Droit International, Annuaire de l’Institut de Droit International 11 (1891); New Zealand Department of Labour, Immigration Operational Manual, available at: http://www.immigration.govt.nz/opsmanual/; US Department of State, Proliferation Security Initiative: Statement of Interdiction Principles of 4 September 2003, available at: http://www.state.gov/t/isn/c27726.htm Cases: Church v. Hubbart (1804), U.S. Supreme Court, 6 U.S. 2 Cranch 187 (1804); Croft v. Dunphy [1933] AC 156 (UK); El Salvador v. Nicaragua, Central American Court of Justice, Judgment of 9 March 1917, AJIL 11 (1917), 674; Le Louis [1817] 165 ER 1464 (UK); Manchester v. Massachusetts, 139 U.S. 240 (1891); Owners, Officers and Men of the Wanderer (Great Britain v. United States), Award of 9 December 1921, RIAA VI, 68; Petit Jules [1850] 39 FOCP 2633 (UK); Re Martinez (1959), Court of Cassation (Italy), ILR 28 (1963), 170; The M/V ‘SAIGA’ (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), ITLOS; Judgement of 1 July 1999, ITLOS Reports (1999), 10; United States v. F/V Taiyo Maru, 395 F.Supp. 413 (D. Me. 1975); United States v. Gonzalez, 776 F.2 d 931 (11th Cir. 1985) Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. The Origin of the Concept . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Legislative History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) The Hague Codification Conference (1930) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) The International Law Commission and UNCLOS I (1958) . . . . . . . . . . . . . . . . . c) UNCLOS III (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Territorial Scope of the Contiguous Zone . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Legal Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Catalogue of Purposes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Hot Pursuit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Article 33 and Article 303 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. State Practice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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I. Purpose and Function Debates on law of the sea issues have always very much revolved around just one, albeit complex question: Do States dispose of jurisdictional prerogatives in waters adjacent to their coast, and if so, what is the nature of these prerogatives and for which purpose(s) and to what outer limits may they be exercised? Art. 33 is part of the de lege lata answer by which UNCLOS III undertakes to balance the various conflicting interests which oscillate in the tension between ‘control by the littoral State’ and ‘liberty of the sea’. 2 In this epic controversy, issues and problems regarding the area and subject-matter today covered by the single article contained in Part II Section 4 of the Convention, soon emerged into the very core of the intellectual battlefield. What caused such conflict was not so much the big issues of principle, which ‘waxed and waned through the centuries’1 ever since the early 17th century when HUGO GROTIUS and JOHN SELDEN became the main protagonists in probably the first great doctrinal dispute in the history of international law. 2 Rather, what remained in limbo and caused increasing doubts was whether such a clear-cut but rather simple bipartite ‘all or nothing’ legal regime really provided an adequate response to the legitimate interests of all relevant stakeholders, in particular those of coastal States. And in fact, from its very beginning, the law of the sea landscape was very much dominated by questions concerning the grey area in between the Territorial Sea (“State Domain”) and the (remote parts of the) High Sea (“res omnium commune”). After a long (political and lawmaking) process, it was only in the second half of the twentieth century that in these ‘intermediate waters’ three zones, in which coastal States may possibly exercise jurisdiction for limited purposes only, gained general recognition: The contiguous zone, the exclusive economic zone (EEZ) (� Part V) and the continental shelf (� Part VI). Whereas the latter two maritime zones have found a rather elaborate treatment in the Convention, the codification of the legal regime of the contiguous zone remains amazingly concise, and perhaps imprecise, thus leaving several issues open to debate. 1

II. Historical Background 1. The Origin of the Concept The shaping of what today constitutes the legal essence of Art. 33 is not the result of a ‘battle of books’.3 This provision rather owes its existence to almost 300 years of claims and counter-claims by States, seconded and driven by hard, primarily economic facts: At times, smuggling seriously impaired revenues from customs, offshore fishing by ships under foreign flags endangered local income and tax revenues, the uncontrolled influx of merchandise constituted a considerable threat to national health and economic stability, unregulated immigration, for various reasons, ran counter to national politics, and finally, the approach of unrecognized vessels constituted a potential threat to national security. 4 Although history knows of a number of early attempts to bring parts of the sea beyond a generally accepted narrow off-shore belt under the control or jurisdiction of the littoral State,4 with good reasons one may fix the origins of the development of the modern concept 3

1

Daniel P. O’Connell, The International Law of the Sea, vol. I (1982), 1. Triggered by Hugo Grotius’ seminal work ‘The Freedom of the Seas’ (1608) and countered by John Selden’s ‘De mare clausum’ (1635, translated 1663). 3 The expression (‘bataille des livres’) for the Grotius/Selden controversy was coined by Ernest Nys, Les origines du droit international (1894), 262. 4 E. g. Venice in the Adriatic, symbolized by an annual picturesque ceremony of ‘espousing’, see Giulio Pace, De dominio maris adriatico (1619); Genoa on part of the Ligurian Sea, see Petri B. Borgo, De dominio serenissimae genuinsis reipublica in mari ligustico (1641); for details Jan Hendrik W. Verzijl, International Law 2

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of the contiguous zone to the early eighteenth century, when Great Britain unilaterally claimed functional legislation for very precise purposes in clearly defined waters adjacent to its territorial sea. The 1719 Act for Preventing Frauds and Abuses in the Public Revenues of Excise, Customs, Stamp Duties, Post Office, and House Money, effective as of 1 August 1720, was the first5 in a whole series of legislation on the subject and authorized the search and seizure of small-size6 smuggling ships ‘found at anchor or hovering within two Leagues from the Shore’.7 It is interesting to note that in 1802 a statutory provision extended the respective distance to eight leagues,8 thus bringing it exactly to the 24 NM line which today constitutes the outermost limit of the contiguous zone, in accordance with. Art. 33 (2). From an international law perspective, these so-called Hovering Acts 9 always stood on 5 shaky ground, as did all other forerunners of the legal regime enshrined in Art. 33. 10 As early as 1817, the most carefully argued landmark decision in the Le Louis 11 case vigorously rejected the escalating State practice of visitation and search of foreign ships on the open sea as running contrary to positive international law. Furthermore, the court stated that it could not find any proper legal basis for ‘our hovering laws, which […] within certain limited distances more or less moderately assigned, subject foreign vessels to such examination’, and was thus constrained to resort to the rather sweeping concept of ‘the common courtesy of nations’.12 By the mid-nineteenth century, ancient claims under the Hovering Acts encountered not only sharp criticism by scholars,13 but also growing resistance by other States. In the case of the seizure in 1850 of the French smuggling lugger Petit Jules 23 miles off the Isle of Wight, the British Government also saw itself deprived of the hitherto steadfast support on the part of its own legal authorities.14 Finally, and probably most importantly, ‘that very embarrassing international question’15 proved more and more obstructive to the hegemonic aspirations of the rising British Empire itself. Therefore, it is not surprising that at this stage the leading seafaring nation of the time, in a startling volte-face, not only gave up its former claims to extra-territorial jurisdiction,16 but went on to become one of the most fervent in Historical Perspective, vol. IV (1971), 11 et seq.; on the so-called King’s Chambers and other claims to the Dominion of the British Seas, see still unmatched Thomas W. Fulton, The Sovereignty of the Sea (1911), offering amazingly rich insights into relevant 17th to 19th century State practice. 5 The very earliest acts on the subject from the first decade of the 18th century, such as 8 Anne cap. 7 (1709), still lacked any specification with regard to distance. 6 Up to a tonnage of 50 tons, see also Christopher J. French, Eighteenth-Century Shipping Tonnage Measurements, Journal of Economic History 33 (1973), 434 et seq. 7 6 Geo. I cap. 21, XXXI. LXII; in the English usage, a league was equivalent to three nautical miles (5,556 km). For subsequent legislation see in particular Act of 1736 (now also applying to bigger ships), the preamble of which recalls ‘several laws already made to prevent the unlawful importing and clandestine landing and running of prohibited and uncostomed goods’ (9 Geo. II cap. 35); Acts of 1763, 1784, 1802, 1825 and 1833; for exact references, see Philip C. Jessup, The Law of Territorial Waters and Maritime Jurisdiction (1927), 77 et seq. 8 42 Geo. III cap. 82; see also Chief Justice Marshall in Church v. Hubbart (1804), U.S. Supreme Court, 6 U.S. 2 Cranch 187, 234 (1804): “state’s power to secure itself from injury may certainly be exercised beyond the limits of its territory” as an “universally acknowledged” principle. 9 Bill Gilmore, Hovering Acts, MPEPIL, available at http://www.mpepil.com (with further references). 10 For references from State practice, including in particular US liquor laws, cf. Jessup (note 7), 80 et seq and for a concise analysis of the (U.S.) jurisprudence on the extent and limits of visit and search rights beyond the 3 mile limit under the National Prohibition Act: Wesley A. Sturges, National Prohibition and International Law, Yale Law Journal 32 (1923), 259–266. 11 Le Louis [1817] 165 ER 1464 (UK). 12 Ibid. 13 Henry Wheaton, Enquiry into the Validity of the British Claim to a Right of Visitation and Search of American Vessels Suspected to be Engaged in the African Slave-Trade (1842), 145 et seq.: ‘The assertion of Lord Stowell, that no […] authority can be found [which gives any right of visitation or interruption over the vessels of foreign States] must be considered as conclusive against its existence’. 14 Petit Jules [1850] 39 FOCP 2633 (UK), the Queen’s Advocate held that ‘the seizure of the French vessel the “Petit Jules” upon the high seas […] was not warranted by the Law of Nations’; see further Alan V. Lowe, The Development of the Concept of the Contiguous Zone, BYIL 52 (1981), 109, 111. 15 Then British Foreign Secretary Lord Palmerston, cited after Lowe (note 14), 112. 16 It was, however, only in the 1952 Customs and Excise Act (15 & 16 Geo. 6 & 1 Eliz. 2 c. 44), a complete rewrite of the pertinent law, that the ‘Hovering Acts’ were formally repealed; in this regard incorrect Hugo

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advocates of the three-mile rule as the only legitimate limit of maritime jurisdiction – and clung to this position for almost a century. The 1921 arbitral award in the Wanderer case is a perfect reflection of the Anglo-American position on the issue, and it was at the time highly influential for the law-making process in the international arena: ‘The fundamental principle of the international maritime law is that no nation can exercise a right of visitation and search over foreign vessels pursuing a lawful vocation on the high seas, except in time of war or by special agreement.’17

6

However, in the real world, this ‘fundamental principle’ had already become increasingly strained. British practice itself, shared by a number of other States, always allowed for at least two more exceptions to the strict three-mile interception limit: a) ships were held liable for unlawful acts committed by boats sent within that limit (doctrine of constructive presence), 18 and b) ships suspected for good reasons of having violated local law may be pursued and arrested (doctrine of hot pursuit)19. Lively controversies among scholars and learned societies,20 ambiguities in both national as well as international21 jurisprudence22, and finally – probably again most importantly – State practice far from uniformity, had always kept the entire issue on the international legal and political agenda.23 By the 1930s, the still somewhat contourless concept of a ‘contiguous zone’, e. g. a zone of jurisdiction for limited purposes adjacent to the territorial sea, had become widely accepted in academia and jurisprudence. 24 However, a number of important maritime States, including inter alia Great Britain and Japan, were not (yet) prepared to make the first step on the path into a legal future, which would see a scramble for State control over great parts of the open sea, hitherto free for the use of all. Thus, the state of law on the matter remained unsettled, and no ‘international custom, as evidence of a general practice accepted as law’ could be established yet. 25 On the contrary, late nineteenth and early twentieth century State practice witnessed a confusing variety of claims of different width to maritime areas adjacent to the territorial zone for security reasons, customs control and other purposes. 26 Caminos, Contiguous Zone, MPEPIL, para 4 (available at: http://www.mpepil.com), who holds that these Acts were already ‘repealed in 1876 by the Customs Consolidation Act’, available at: http://www.mpepil.com. 17 Owners, Officers and Men of the Wanderer (Great Britain v. United States), Award of 9 December 1921, RIAA VI, 68, 71; probably the most prominent of such treaty exceptions was the Convention between the United States of America and Great Britain for the Prevention of Smuggling of Intoxicating Liquors, 23 January 1924, LNTS 27, 182; similar treaties followed e. g. with Chile on 27 May 1930 and with Poland on 19 June 1930, where the Contracting Parties ‘declare their firm intention to uphold the 3 marine miles principle’. 18 See with complete references Nicholas M. Poulantzas, The Right of Hot Pursuit in International Law (2nd edn. 2002), 243 et seq. 19 Ibid.; and see further Guilfoyle on Art. 111 MN 4–14. 20 The ‘Institut de Droit International’ dealt with the subject since 1891, see Hamburg Session, Annuaire 11 (1891), 133 et seq.; and the International Law Association since its 27th Session (Paris, 1912, ILA Report (1912), 81 et seq.). 21 In favor of the existence of a ‘contiguous zone’, see Central American Court of Justice, El Salvador v. Nicaragua, Judgment of 9 March 1917, AJIL 11 (1917), 674, 706; and already in 1891 Manchester v. Massachusetts, 139 U.S. 240, 258. 22 The contiguous zone does not hold a prominent place in the more recent jurisdiction of national and international Courts. The quite extensive listing of ICJ rulings on the subject by Barbara Kwiatkowska, Decisions of the World Court Relevant to the UN Convention on the Law of the Sea: A Reference Guide (2010), 33–34, is somewhat misleading, since references provided here are primarily to opinions of Judges (Individual/Separate/ Dissenting) or statements of Counsel before the Court rather than to actual findings of the Court itself. 23 For a meticulous account, see Lowe (note 14), 133 et seq. 24 See e. g. the obiter dictum of the Privy Council in Croft v. Dunphy [1933] AC 156 (UK): ‘[…] it has long been recognized that for certain purposes, notably those of policy, revenue, public health, and fisheries, a state may enact laws affecting the seas surrounding its coasts to a distance seaward which exceeds the ordinary limits of its territory.’; see also James L. Brierly, The Doctrine of the Contiguous Zone and the Dicta in Croft v. Dunphy, BYIL 14 (1933), 155 et seq.; it is reported that the British Foreign Office tried (in vain) to have this passage omitted before the Award was officially published in the Law Reports, cf. Lowe (note 14), 149. 25 Cf. Art. 38 Statute of the Permanent Court of International Justice and Art. 38 Statute of the International Court of Justice respectively. 26 Caminos (note 16), MN 6 et seq.

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2. Legislative History a) The Hague Codification Conference (1930). In a questionnaire for the Conference’s 7 agenda item ‘Territorial Sea’27, States were asked to answer inter alia the following questions: ‘Does the state claim to exercise rights outside the territorial waters subject to its sovereignty? If so, what precisely are those rights? On what are they founded? Are they claimed within a belt of fixed width or within an indeterminate area of the waters adjacent to the coast but outside the territorial sea? Does the state admit any claim by any foreign state to exercise such rights outside the territorial waters subject to the sovereignty of the latter state?’28

Whereas some States, among them notably Great Britain and the United States, took an 8 unambiguously negative stance on the matter (‘there is no jurisdiction outside the 3-mile limit’), several others were more sympathetic to the proposal made by the Rapporteur, WALTHER SCHU¨CKING, according to which ‘[b]eyond the zone of sovereignty, states may exercise administrative rights on the ground either of custom or of vital necessity. There are included the rights of jurisdiction necessary for their protection.’29 This draft, though rudimentary, anticipated essential elements of the future ‘contiguous zone.’ 30 Despite long and learned discussions,31 it proved impossible to reconcile (often diametrically opposed) positions on crucial issues. Reaching far beyond the fundamental ‘to be or not to be’question, disaccord included namely the list of matters of possible rights of States in the envisaged zone as well as the nature of rights, which might eventually be conceded to littoral States (only enforcement or also legislative jurisdiction), and finally, the width of the zone under discussion. Although the 1930 Conference produced no immediate results on the issue, but rather 9 explicitly postponed the elaboration of a draft convention to a later date, 32 intellectual work done both in the preparatory phase and during the Conference itself, was not at all wasted: The discussions not only identified the general direction in which the law would very likely develop33 and had a strong influence on subsequent State practice,34 but also provided most valuable material for future deliberations on the subject. 35 27 For a summary of the Conference and its results, see Hunter Miller, The Hague Codification Conference, AJIL 24 (1930), 674 et seq.; for important preliminary studies with an extensive account of State practice, see Harvard Law School, Draft Convention and Comments on Territorial Waters, AJIL 23, Suppl. No. 2 (Codification of International Law) (1929), 243, 333 et seq. 28 League of Nations, LN Doc. C.74.M.39.1929.V (1929), 22; replies printed in: AJIL 22, No. 1 Suppl. (Codification of International Law) (1928), 8 et seq. 29 League of Nations, LN Doc. C.196.M.70.1927.V (1927), Annex to Questionnaire No. 2. 30 Although occasionally used already before, this terminology gained general recognition at the 1930 Conference only; Gilbert Gidel, Le droit international public de la mer: Tome 3: La mer territoriale et la zone contigu€ T (1934, reprinted 1981), 361 et seq. 31 League of Nations, LN Doc. C.351(b).M.145(b).1930.V (1930), 11 et seq.; the British Delegate Sir Maurice Gwyer complained about the strong academic presence of no less than thirty professors of law: ‘The presence of these learned Gentlemen’ being ‘curiously ineffective in debate and lacking readiness and tactical sense […] is not always conducive to the expeditious conduct of business.’, cited after Lowe (note 14), 146. Gilbert Gidel (France), however, was expressly exempted from this critique. The lesson was learnt for future conferences on the topic. 32 League of Nations, LN Doc. C.351(b).M.145(b).1930.V (1930), 221 (Appendix 4). 33 ‘The states which did not express a desire for a contiguous zone for one purpose or another formed a small minority.’, Jesse S. Reeves, The Codification of the Law of Territorial Waters, AJIL 24 (1930), 486, 494. 34 Cf. e. g. Declaration of Panama ´ of 3 Oct. 1939, Consultative Meeting of Foreign Ministers of the American Republics, AJIL 34, Suppl. No. 1 (1940), 1, 17–19, which proclaimed a non-combatant zone of vast extent in waters adjacent to the American continent. Highly controversial, the measure was justified with the ‘principle of protective jurisdiction’, which was deemed to be firmly anchored in the opinio juris, see Philip Marshall Brown, Protective Jurisdiction, AJIL 34 (1940), 112, 114 et seq., with express reference to the 1930 conference and earlier statements of scholars and learned societies. 35 The 1956 ILC commentary on Art. 66 (Contiguous Zone) makes twice explicit reference to the ‘Preparatory Committee of The Hague Codification Conference (1930)’, see ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12, 39–40.

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b) The International Law Commission and UNCLOS I (1958). Immediately after World War II, the international legal community resumed work on a new and comprehensive law of the sea regime. At its very First Session (1949), the International Law Commission (ILC) took up the topic of the high seas, including the issue of possible rights of States in a zone adjacent to the territorial sea.36 Clearly basing its work on the presumption that the concept of the contiguous zone as such had already grown into the corpus of customary international law, 37 at its 1950 (Second) Session already the Commission agreed as follows: ‘CONTIGUOUS ZONES. 195. The Commission took the view that a littoral State might exercise such control, as was required for the application of its fiscal, customs and health laws, over a zone of the high seas extending for such a limited distance beyond its territorial waters as was necessary for such application.’38

11

Other proposals, at least in part heralding the upcoming scramble for extended State control over the oceans, were in particular directed at a broadening of the prerogatives of coastal States to further areas (fishing, conservation of living resources, immigration and emigration, security).39 However, none of these proposals found a majority in the Commission40 and it was thus the (rather narrow) substance of the early 1950 accord which eventually entered the 1956 draft text for presentation to the Geneva Conference (UNCLOS I): ‘1. In a zone of the high seas contiguous to its territorial sea, the coastal State may exercise the control necessary to (a) Prevent infringement of its customs, fiscal or sanitary regulations within its territory or territorial sea; (b) Punish infringement of the above regulations committed within its territory or territorial sea. 2. The contiguous zone may not extend beyond twelve miles from the baseline from which the breadth of the territorial sea is measured.’41

An attempt by the British Government to further narrow the State’s enforcement jurisdiction in the zone by omitting the right to ‘punish’ (para. 1 (b)) remained unsuccessful. 42 Indeed, in conceding to British pressure, the Commission would have inevitably marginalized the entire concept, not only from a legal, but probably even more so from a policy perspective. 13 At the time, the granting of a twelve mile ‘control’ zone (also) served as some sort of outlet for the increasing pressure of States to extend their offshore jurisdiction, in particular through the enlargement of their territorial seas. However, the Commission made it unambiguously clear that it was not prepared to allow the concept of a zone of limited jurisdiction to encroach upon the traditional legal dichotomy of maritime spaces: 12

36 Designation of J. P. A. François as Special Rapporteur, who eventually delivered six reports, which served as the basis for deliberations on the entire topic at seven consecutive ILC-Sessions (1950–1956). 37 ‘International law accords States the right to exercise preventive or protective control for certain purposes over a belt of the high seas contiguous to their territorial sea.’, ILC Law of the Sea Articles with Commentaries (note 35), 39 (para. 1). 38 ILC, Report of the International Law Commission, UN Doc. A/1316 (1950), GAOR 5th Sess. Suppl. 12, reproduced in: ILC Yearbook (1950), vol. II, 364, 384. 39 ILC Law of the Sea Articles with Commentaries (note 35), 39–40 (paras. 4–7); for an insightful account of pre-1930 State practice regarding jurisdiction and control on the high seas adjoining territorial waters, see Jessup (note 7), 75 et seq. 40 In the case of ‘security’, objections were raised in particular with regard to the ‘extreme vagueness’ of the term, which would ‘open the way for abuses’. And it was argued that ‘the granting of such rights was not necessary. The enforcement of customs and sanitary regulations will be sufficient in most cases to secure the security of the State’, ILC Law of the Sea Articles with Commentaries (note 35), 39–40 (para. 4). 41 ILC Law of the Sea Articles with Commentaries (note 35), 39. 42 ‘[…] cannot accept that the coastal State is entitled to exercise anything more than purely preventive control in its contiguous zone.’, ILC, Comments by Governments on the Provisional Articles Concerning the Régime of the High Seas and the Draft Articles on the Régime of the Territorial Sea adopted by the International Law Commission at its Seventh Session in 1955, UN Doc. A/CN.4/99/ADD.1 (1956), reproduced in: ILC Yearbook (1956), vol. II, 80, 88.

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‘It is, of course, understood that this power of control does not change the legal status of the waters over which it is exercised. These waters are and remain a part of the high seas and are not subject to the sovereignty of the coastal State […].’43

Although initially intended as an interim solution only (until a consensus was reached on 14 the extent of the territorial sea),44 reference to the baseline (para. 2) was to turn into a pioneering concept for the measurement of all maritime zones alike. The very idea underlying the manner in which the maximum breadth of the zone was to be defined is of enduring relevance, too: ‘States which have claimed extensive territorial waters have in fact less need for a contiguous zone than those which have been more modest in their delimitation.’45 However, the formula eventually adopted did nothing to clarify the exact nature and juridical character of the rights granted to the coastal State. 46 On this crucial point, the Commission was simply unable to produce a united view. The manner in which the contiguous zone regime was shaped at the 1958 Geneva 15 Conference (UNCLOS I) to some extent foreshadowed the rather non-transparent UNCLOS III negotiation process.47 When being addressed by the Conference’s First Committee, ILCDraft Art. 66 suffered considerable changes, in particular resulting from a Polish amendment, adopted by a narrow majority of 33 to 27 with 15 abstentions.48 However, following a lastminute American proposal,49 the plenary, with the overwhelming majority of 60 votes to 0 with 13 abstentions, reversed the First Committee text and again came back to something very close to the original draft. In its final version, Art. 24 of the 1958 Convention on the Territorial Sea and Contiguous 16 Zone (CTSCZ) contained indeed but two new elements: The inclusion of ‘immigration’ into the catalogue of para. 1 (a) and – following a Yugoslav proposal – a new third paragraph: ‘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 seas of the two States is measured.’

Art. 24 (2) CTSCZ confirmed the ILC Draft’s twelve mile limit, which – in view of the futile efforts to reach consensus on the maximum breadth of the territorial sea – may have been considered at the time as some sort of provisional or substitute arrangement for the determination of a generally acceptable outer limit of State control over coastal waters. c) UNCLOS III (1982). Not surprisingly, the general recognition of a twelve mile territorial 17 sea under Art. 350 and the emergence of the EEZ (� Part V) raised the question whether these legal developments would not render the continued existence of a contiguous zone superfluous at all.51 It was also argued that an extension of the contiguous zone beyond the twelve mile limit would seriously encroach upon international communication and the freedom of naviga43

ILC Law of the Sea Articles with Commentaries (note 35), 39 (para. 1). Ibid., 40 (para. 9). 45 Ibid. 46 For a comprehensive account of views expressed and positions taken on this issue, see Shigeru Oda, The Concept of the Contiguous Zone, ICLQ 11 (1962), 131, 138 et seq. 47 It is believed that the contiguous zone regime was earmarked to become part of a package deal on the territorial sea, a deal which in the end did not materialize, cf. Lowe (note 14), 165. 48 For references, see First Committee UNCLOS I, Annexes, UN Doc. A/CONF.13/L.28/REV. 1 (1958), OR II, 116 et seq. (para. 26); the revised Article in its entirety, however, was adopted by the rather vast majority of 50 votes to 18 with 8 abstentions. 49 First Committee UNCLOS I, Annexes, UN Doc. A/CONF.13/L.31 (1958), OR II, 126. 50 See Tru ¨ mpler on Art. 3 MN 11–13. 51 Very explicit in this sense e. g. the Cameroon position: ‘[T]he extension of the zone of national jurisdiction […] rendered the concept of a contiguous zone void and superfluous’, Second Committee UNCLOS III, 9th Meeting, UN Doc. A/CONF.62/C.2/SR.9 (1974), OR II, 122; similar Kenya, ibid., 121; however, among African States, too, opinions were split on this issue, for full references, see Nasila S. Rembe, Africa and the International Law of the Sea (1980), 112 et seq. 44

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tion.52 The prevailing view at the Conference, however, was that, first, an enlarged territorial sea would in no way compromise the rationale of creating an adjacent ‘prevent and punishment zone’, and second, the envisaged legal regime of the EEZ was intended to cover entirely different subjects, and that there were thus no overlap in substance between these two maritime zones.53 Whereas the latter reasoning is rather convincing, this is not the case with the argument in favour of the coexistence of an enlarged territorial sea and a contiguous zone: As the essential raison d’eˆtre of the contiguous zone being the protection of the shore and its hinterland from certain threats, one may with very good reasons argue that the full sovereign powers accorded to coastal States in the new twelve mile zone do in effect provide adequate and sufficient space and means to accomplish these protective tasks. 54 With no more than 90 States – including a number of non-States Parties to UNCLOS55 – having made a respective claim in the last more than 30 years, one may indeed wonder whether States really consider the contiguous zone as an essential element in the modern law of the sea. 18 In order to make the legal blueprint for the contiguous zone of Art. 24 CZSCZ fit into the new and complex law of the sea regime established by UNCLOS III, three modifications were deemed necessary:56 (a) adaption of the maximum extent of the zone to 24 NM; (b) deletion of the words ‘of the high seas’; and (c) deletion of para. 3. Unfortunately, the Conference did not seize the opportunity to remove another major ambiguity, which lies in the phrase ‘within its territory or territorial sea’ used in both para. (a) and (b) of the provision. 57 19 The duplication of the maximum outer limit of the contiguous zone from 12 to 24 NM under Art. 33 (2) and the deletion of the reference to the ‘high seas’ in the provision’s headline were direct and imperative consequences of the evolution of the law of the sea: Given the extension of the territorial sea to 12 NM, the contiguous zone (delimited pursuant to Art. 24 (2) CTSCZ) would have otherwise lost virtually its entire territorial scope, and the recognition of the EEZ had – subject only to very special circumstances – resulted in a cutting of the contiguous zone’s former connection with the high sea (cf. Art. 86). 58 20 The motives for the omission of a provision regarding the delimitation of the contiguous zone between States with opposite of adjacent coasts (Art. 24 (3) CTSCZ) are far less clear: It has been suggested that – ‘since the nature of control to be exercised in the contiguous zone does not create any sovereignty over the zone or its resources’59 – a possible overlap of control 52 Second Committee UNCLOS III, 30th meeting, UN Doc. A/CONF.62/C.2/SR.31 (1974), OR II, 234 (paras. 34–36 [German Democratic Republic]); for a brief account of the UNCLOS III discussion of the contiguous zone, cf. Louis B. Sohn/John E. Noyes, Cases and Materials on the Law of the Sea (2004), 447 et seq. 53 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 270 (MN 33.4), with further references. 54 Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 114 et seq.; this was obviously also the gist of the argument put forward by the representative of the (former) GDR during the negotiation process, UNCLOS III, Second Committee/30th meeting (note 51), 234 (para. 34); a position which was also shared by many African States, see Rembe (note 51), 113. 55 For Cambodia, see: http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/KHM_1982_ Decree.pdf; for Islamic Republic of Iran, see: http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/ PDFFILES/IRN_1993_Act.pdf; for Syrian Arab Republic, see: http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/syr_2003e.pdf; for United Arab Emirates, see: http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/ARE_1993_Law.pdf; for the USA, see: http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/USA_1999_Proclamation.pdf, for Venezuela, see: http://www.un.org/Depts/los/ LEGISLATIONANDTREATIES/PDFFILES/VEN_1968_Decree.pdf. 56 See also Janusz Symonides, Origin and Legal Essence of the Contiguous Zone, ODIL 20 (1989), 203, 207 et seq. 57 See infra, MN 22; and Tommy T. B. Koh, The Territorial Sea, Contiguous Zone, Straits and Archipelagos under the 1982 Convention on the Law of the Sea, Malaya Law Review 29 (1987), 163, 174 et seq., with further references. 58 Although under no obligation whatsoever either to extent their coastal waters to the maximum breadth of twelve miles (Art. 3) or to claim an EEZ at all (Arts. 55 et seq.), with very few exceptions States have made use of their enlarged range of action to its fullest extent. 59 Commonwealth Secretariat, Ocean Management: A Regional Perspective – The Prospects for Commonwealth Maritime Cooperation in Asia and Pacific (1984), 39; in the same vein, Moritaka Hayashi, Japan: New Law of the Sea Legislation, IJMCL 12 (1997), 570, 572.

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activities by two (or more) States was not only acceptable, but was de facto perfectly legally sound.60 It is further argued that the lack of a provision corresponding to Art. 16 (publication and notification of claims to territorial waters), also aptly demonstrates the functional rather than territorial character of the legal regime enshrined in Art. 33. One may wonder whether this very academic approach really stands the test of practice, and States are actually poised to accept neighbouring States exercising control rights emanating from the legal regime of the contiguous zone on the ‘wrong’ side of a (virtual) median line. Hence, it is probably more correct (and realistic) to assume that the drafters of UNCLOS III, guided by the desire to streamline the voluminous text of the Convention, simply considered Arts. 74 and 75 a sufficient substitute for the deleted paragraph. And, in fact, the delimitation of the EEZ routinely includes delimitation of the contiguous zone, if only implicitly.61 However, although it is highly recommendable to establish one single delimitation line in disputed waters, the resource oriented quest for an ‘equitable solution’ (Art. 74 (1))62 is obviously not the most appropriate approach for the delimitation of the contiguous zone. One should thus seriously consider and, if occasion arises, possibly even give preference to the Yugoslav position on the issue: ‘Due to the fact that the provisions of the Convention relating to the contiguous zone (article 33) do not provide rules on the delimitation of the contiguous zone between States with opposite or adjacent coasts, […] Yugoslavia considers that the principles of the customary international law, codified in article 24, paragraph 3 of the [1958 Convention], will apply […].’63

The non-existence of a specific and explicit delimitation technique – or probably even 21 better so, a de jure equidistance rule – is regrettable: Due to the resource-oriented character of both the legal regimes governing the EEZ and the continental shelf, the delimitation of these maritime zones is all too often subject of disagreement and conflict between adjacent or opposite States. Lengthy and arduous negotiations are the best case scenario, belligerent confrontation the worst. Unfortunately, the question of the lateral or seaward delimitation of the contiguous zone – although virtually irrelevant from an economical or strategic perspective – becomes inextricably bound to the solution of conflicts which have in fact nothing to do with the (limited) purposes for which a contiguous zone may be established. Thus, unfortunately enough, in order not to prejudice or otherwise weaken their legal position in an actual or potential conflict over EEZ or continental shelf claim lines, the drawing of ‘mere’ contiguous zone lines, also remains undone.

III. Elements 1. Territorial Scope of the Contiguous Zone According to Art. 33 (2), the maximum breadth of the contiguous zone is 24 NM 22 measured from the baselines (� Art. 5; Art. 7; Art. 9; Art. 10; Art. 11; Art. 13). However, Art. 33 (1) further explains this maritime zone to comprise only a belt of water ‘contiguous to its territorial sea’ in a seaward direction. Since the vast majority of States has exercised their right under Art. 3 to claim a territorial sea of 12 NM, the de facto breadth of the contiguous zone thus amounts – as a rule – to no more than 12 NM.64 A contiguous zone may not only 60

See also Umberto Leanza, Le re´gime juridique international de la me´diterrane´e, RdC 236 (1994), 127, 249. As Nuno Marques Antunes, Towards the Conceptualisation of Maritime Delimitation: Legal and Technical Aspects of a Political Process (2003), 101 et seq., rightly remarks: ‘State practice on contiguous zone delimitation is virtually negligible’, with an insightful critical discussion on the entire issue. 62 See Tanaka on Art. 74 MN 16–24. 63 UN, UNCLOS Declaration made by Yugoslavia upon ratification of the UNCLOS, which has been explicitly confirmed upon succession by Serbia and Montenegro and again by Montenegro, available at: http://treaties.un.org/pages/ViewDetailsIII.aspx?&src=UNTSONLINE&mtdsg_no=XXI~6&chapter=21&Temp=mtdsg3&lang=en#Participants. 64 From the outer limit of the territorial sea to the 24 NM line. The respective table published by the UN Division for Ocean Affairs and the Law of the Sea (‘Breadth of the zone in nautical miles: 24 nm’) is therefore 61

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be proclaimed with respect to mainland territory and islands, but, in pursuance of Art. 121 (2),65 but also around rocks (argumentum e contrario Art. 121 (3)). 66

2. Legal Status The contiguous zone does not form part of State territory (argumentum e contrario Art. 2 (1)).67 Therefore, unanimity prevails that in the maritime belt adjacent to its territorial sea, States may only exercise limited jurisdictional powers. Given the manner in which the provision is constructed, one must even come to the conclusion that in case of doubt a presumption exists in favor of the freedom of the seas and the non-existence of coastal State jurisdiction in that very zone. The nature of the jurisdictional prerogatives enumerated exhaustively in Art. 33 (1) (a) and (b), however, is less clear. 68 According to the unambiguous wording of the provision (and its forerunner Art. 24 CTSCZ), States are merely entitled to ‘prevent and punish’ infringements committed within the territory of the coastal State (including its territorial sea).69 Accordingly, the legal regime established by Art. 33 accords no right whatsoever to extend to or enact specific regulations for the contiguous zone itself, let alone to enforce such regulations against those (ships) suspected of having violated them beyond the seaward limit of the territorial sea. A literal reading in accordance with generally recognized rules of interpretation (cf. Art. 31 (1) VCLT: ‘ordinary meaning rule’) leaves no doubt: UNCLOS allows for no legislative powers at all,70 but only for a limited enforcement jurisdiction in the contiguous zone. The object and purpose underlying the normative concept of Art. 33 provides further support for this restrictive interpretation: Preventive and punitive measures were deemed to protect the (onshore) public order against very specific dangers emanating from inward or outward movement of ships. Maritime traffic in mere transit beyond the twelve mile limit was (and is) indeed very unlikely to have such a negative impact. Hence, although the presence of foreign naval vessels in the contiguous zone, for example of (disputed) islands and rocks, may well be perceived as a serious threat to national security, it certainly does not in itself constitute an infringement of the rights of the littoral State under Art. 33.71 24 However, State practice has not always been in compliance with this strict reading of the legal regime contained in Art. 33:72 Practice in national court is far from uniform in this 23

somewhat misleading (http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/table_summary_of_claims.pdf. See also Tru¨mpler on Art. 3. 65 Cf. Talmon on Art. 121 MN 53–55. 66 Cf. e. g. Jonathan I. Charney, Rocks That Cannot Sustain Human Habitation, AJIL 93 (1999), 863, 866, with further references. 67 See Barnes on Art. 2 MN 16–19. 68 For a full discussion see Churchill/Lowe (note 54), 116–118. 69 Lowe (note 14), 167, commenting on the 1958 formula, which suffered no changes at UNCLOS III, was undoubtedly right when concluding: ‘The final treaty text on the contiguous zone has a plain meaning when its words are read in their ordinary sense. This is that the “crimes” in relation to which the powers of prevention and punishment are given to the coastal State must be committed within the territory or territorial sea of the coastal State’. 70 In this sense also John E. Noyes/William J. Clinton, Current Legal Developments: United States – Establishment of a 24-Mile US Contiguous Zone, IJMCL 15 (2000), 269, 271. 71 Although the passage on June 9, 2016 of a Chinese naval frigate through the contiguous zone in the area of the disputed Senkaku/Diaoyu Islands (cf. LOSIC No. 28, October 2008, 17: Chinese protest against depictions on charts deposited by Japan pursuant to Art. 16 (2) [http://www.un.org/Depts/los/LEGISLATIONAND TREATIES/PDFFILES/mzn_s/mzn61.pdf], Japanese reply: LOSIC No. 28, October 2008, 18) provoked an immediate and harsh diplomatic reaction from Japan (‘[…] vehemently protest[s] the Chinese side’s stance of unilaterally heightening tension’), under UNCLOS in general (and Art. 33 in particular) there was absolutely no basis to protest the presence of the Chinese vessel – and reference to hard law was thus carefully avoided by the Japanese authorities. 72 In fact, in the early years, e. g. before the entry into force of UNCLOS III, many unilateral claims to a contiguous zone did not (explicitly) differentiate between enforcement and legislative jurisdiction and claims to the latter were not unusual at all.

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respect73 and it also seems that the occasional claim to and exercise of some sort of (limited) legislative jurisdiction by coastal States in their contiguous zone has met with little resistance in the international community – in particular when generally outlawed activities are at stake (traffic in illegal narcotics, smuggling of arms, terrorist activities, (eco-) “piracy” etc.). 74 In recent years, the emergence of an ever denser network of international legal rules entitling States to intervene in offshore waters on behalf and in the common interest of all States (in relation to piracy, terrorism, pollution), may have contributed to a blurring of the rather clear conventional limits of jurisdictional prerogatives in the contiguous zone. A further obstacle to the rigorous observance of the limits of jurisdictional powers enshrined in Art. 33 results from the fact that, as the law stands today, States do in fact dispose of and exercise quite extensive legislative powers in the area at stake, deriving, however, from other legal regimes (EEZ and continental shelf, Arts. 56 and 70 respectively). 75 Hence, it has become increasingly difficult if not, at least in certain constellations, virtually impossible, to always apply a brightline test for distinguishing permissible and impermissible legislative activities of States in the contiguous zone.76 Potential disputes on this and other competence-related issues under Art. 33 fall within the scope of Part XV (Arts. 279–299). One of these latter issues is the lingering ambiguity of the formula ‘within its territory or 25 territorial sea’, used in both paras. (a) and (b). A more restrictive reading of these provisions confines the scope of application of para. (b) (‘jurisdiction to punish’) to outgoing ships. Since ‘no offence against the laws of the coastal State is actually being committed at the time’ of an intervention by costal State authorities, to subject incoming maritime traffic heading towards the territorial sea to punitive measures (arrest, fines, imprisonment etc.) would, according to this view, be in blatant disregard of the clear wording of Art. 33 (1)(b). 77 Mere preventive measures under para. (a) – visit, search and eventually a refusal to let a suspicious ship enter the territorial sea – were thus the only lawful remedies the Convention has placed at the disposal of coastal States vis-a`-vis ships not yet having entered the territorial sea. Protagonists of a more liberal interpretation advocate for the application of Art. 33 (1)(b) to outgoing and incoming ships alike, arguing both with the legislative history and a longstanding State practice, demonstrating a clear tendency towards the equal treatment of inbound and outbound traffic.78 Whereas practical needs and State practice may possibly speak in favor of this liberal interpretation, 79 the problem with the legislative history is not 73 A number of (controversial) rulings of national Courts even suggest that Art. 24 CTSCZ and Art. 33 may not have eliminated preexisting rights under customary law wider than those granted by the conventional regime, see e. g. United States v. F/V Taiyo Maru, 395 F.Supp. 413 (D. Me. 1975) (US); United States v. Gonzalez, 776 F.2 d 931 (11th Cir. 1985) (US); Court of Cassation, Re Martinez (1959), ILR 28 (1963), 170 (Italy). 74 See, however, infra, MN 34 on excessive claims relating to security. 75 See also Maria Gavouneli, Functional Jurisdiction in the Law of the Sea (2007), 61 et seq. 76 A more recent example of the uncertainties which still prevail in this respect is found in the ITLOS, The M/ V ‘SAIGA’ (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgement of 1 July 1999, Separate Opinion of Judge Vukas, ITLOS Reports (1999), para. 3: ‘Guinea proclaimed also its contiguous zone; in the proceedings, it even claimed that the Saiga supplied gas oil to the fishing boats in its contiguous zone off the coast of the island of Alcatraz. However, in the course of the proceedings, its reference to its contiguous zone became sporadic and inconsistent. It finally based its claims only on its alleged rights to enforce its customs legislation in its exclusive economic zone’; and thus Judge Laing in his Separate Opinion, ibid., para. 2 concludes: ‘[i]n view of the uncertainty attending Guinea’s apparent invocation of the Convention’s provisions on the contiguous zone in support of its actions, the Tribunal has not made a decision about that question.’ He further on his part addresses in a singularly careful manner some key issues regarding the scope and limits of the powers granted under Art. 33, ibid., paras. 9–16; see also David Anderson, Coastal State Jurisdiction and High Sea Freedoms in the EEZ in the Light of the Saiga Case, in: Clive R. Symmons (ed.), Selected Contemporary Issues in the Law of the Sea (2011), 105. 77 Gerald Fitzmaurice, Some Results of the Geneva Conference on the Law of the Sea, ICLQ 8 (1959), 73, 114. Fitzmaurice served as vice-president of the UK delegation to the 1958 Geneva Conference and his position concurs with the official British position on the subject. 78 See in particular, most carefully argued, Oda (note 46), 131 et seq. 79 See e. g. The Netherlands Understanding of Art. 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances: ‘[…] to the extent that vessels navigating in the contiguous zone act in infringement of the Coastal State’s customs and other regulations, the Coastal State is entitled to exercise,

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resolved: The issue was in fact discussed extensively at the 1958 Conference, but an initiative to delete the words ‘within its territory or territorial sea’80 did not find the necessary majority and thus the original wording of the ILC draft prevailed. If one takes the basic rules of interpretation seriously (Art. 31 (1) VCLT), it seems indeed difficult to extend para. (b) to ships not yet having committed any infringements within the meaning of that provision.

3. Catalogue of Purposes 26

The jurisdictional prerogatives which a coastal State may exercise in the contiguous zone are limited to a narrow band of laws, namely those in respect of customs, fiscal matters, immigration and sanitary matters. This catalogue is exhaustive. 81 It finds an equivalent in Art. 19 (2)(g) and Art. 21 (1)(h). The Proliferation Security Initiative (PSI), a multinational response to the challenge posed by the threat of the proliferation of weapons of mass destruction launched in 200382 and today (2016) actively run by 21 States83 (“the Operational Experts Group (OEG)”) and politically supported by 105 States (October 2015), gives rise to a number of legal questions, including the respect for the limits imposed by Art. 33 on the authority of coastal States in their contiguous zone.84 Para. 4 (d) of the 2003 Interdiction Principles85 calls upon participating States inter alia ‘[t]o 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 to or from states or non-state actors of proliferation concern and to seize such cargoes that are identified […].’

The bundling together in this provision of three distinct geographical areas (internal waters, territorial sea, contiguous zone), each governed by a decisively different legal regime, is certainly unfortunate. Of course, from a policy perspective, the strengthening of the combined efforts of the world community to combat trafficking of weapons of mass destruction (and related materials) is legitimate. However, it was always a key understanding of participating States, and should continue to be so in the future, that interception activities must scrupulously respect the limits imposed by relevant international legislation. Indeed, in order to secure consistency with UNCLOS rules in general, and Art. 33 in particular, the wording of para. 4 (d) of the 2003 PSI Statement allows for a (narrow) interpretation of the ‘right’ to impede and stop shipments. The correct understanding of the above paragraph is thus that reference made to maritime zones is not only to geographical areas but also to the legal regime intimately and inseparably connected with it. Undoubtedly, the PSI itself has no in conformity with the relevant rules of the international law of the sea, jurisdiction to prevent and/or punish such infringement’, the full text of the Understanding is available at: http://treaties.un.org/Pages/ViewDetails.aspx?mtdsg_no=VI-19&chapter=6&lang=en#EndDec. 80 Advanced, inter alia, by the Italian Government, ILC, Comments by Governments on the Provisional Articles Concerning the Re´gime of the High Seas and the Draft Articles on the Re´gime of the Territorial Sea adopted by the International Law Commission at its Seventh Session in 1955, UN Doc. A/CN.4/99/Add. 8 (1956), reproduced in: ILC Yearbook (1956), vol. II, 60. 81 Misleading or at least unclear therefore the Preamble of the Act of the Kingdom of the Netherlands Relative to the Establishment of a Contiguous Zone, Staatsblad No. 387 (2005), 1: ‘[…] Whereas We have considered that, mainly [sic] in order to prevent the infringement of regulations governing customs, taxation, immigration, public health or historic objects’. 82 US Department of State, Proliferation Security Initiative (PSI): Statement of Interdiction Principles of 4 September 2003, available at: http://www.state.gov/t/isn/c27726.htm; for a brief account of the background of the initiative, cf. Michael Byers, Policing the High Seas: The Proliferation Security Initiative, AJIL 98 (2004), 526 et seq.; and for up to date information, see http://www.psi-online.info. 83 At present OEG comprises: Argentina, Australia, Canada, Denmark, France, Germany, Greece, Italy, Japan, Republic of Korea, The Netherlands, New Zealand, Norway, Poland, Portugal, Russia, Singapore, Spain, Turkey, United Kingdom, United States. 84 Christer Ahlstro ¨ m, The Proliferation Security Initiative: international law aspects of the Statement of Interdiction Principles, SIPRI Yearbook (2005), 741–767. 85 PSI: Statement of Interdiction Principles (note 82).

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law-making power and due to the persistent resistance of major sea faring nations (including in particular China and India), a customary law-making process aiming at a modification (and thus expansion) of State prerogatives in the contiguous zone has not been set into motion.86 It has rightly been pointed out that ultimately such a change in the law would also run counter to the well-understood interests of States participating in the initiative. 87 Some 300 years ago, smuggling activities were the very point of departure for the 27 establishment of contiguous zones and the development of their legal regime. 88 Therefore, it is not surprising that there has never been any serious discussion, neither in the ILC nor later at UNCLOS I or III, that customs and fiscal regulations constitute core elements on the list of subjects for which a contiguous zone could be established. The same unanimity prevailed when it came to add to the list ‘health’ or, as this item was later 28 named for purely linguistic reasons, ‘sanitary’ purposes.89 Although there can be no doubt as to the traditional and rather narrow meaning and purpose of this term (protection of a coastal State’s public health against disease), in recent years attempts were made to extend the meaning of the term to include in particular pollution, as at least an indirect threat to public health. This discussion was fueled by statements and national legislation accompanying the 1999 US Contiguous Zone proclamation, which suggests an interpretation of US government authorities equating sanitary with ‘pollution’. The ordinary meaning of the term ‘sanitary’ and the legislative history cast serious doubts on the de lege lata admissibility of such a broad understanding.90 However, the discussion shows that with respect to certain areas and new challenges there might indeed exist a lack of fine-tuning between the legal regimes of the contiguous zone on the one hand and the EEZ and others, such as the International Convention for the Prevention of Pollution from Ships (MARPOL) on the other. An all too narrow interpretation of the purposes enumerated in Art. 33 should therefore not stand in the way of effectively combatting new and serious threats, for example those originating in vessel-source pollution. The question as to whether or not to explicitly include ‘immigration’ as a separate item on 29 the list lead to lengthy and controversial discussions during the mid-1950s deliberations on the subject by the ILC. At that time, many members were not at all at ease with the traditional proposition that immigration was sufficiently covered by the term ‘customs regulation’ and the view prevailed that a future legal regime should no longer equate the movement of people and the trading of goods. However, the majority of the Commission, driven by human rights considerations, was not willing to accept the idea, launched inter alia by HERSCH LAUTERPACHT,91 that the concept of immigration should (implicitly) cover the notion of emigration, too.92 Clearly, for many members tragic experiences from an all too recent past were still very much alive. In the words of SIR GERALD FITZMAURICE: 86

For an in-depth discussion and obviously a slightly different approach, see Byers (note 82), 532 et seq. Ibid., 527: ‘That [UNCLOS high seas] regime forms the legal foundation for the global mobility of U.S. forces.’, with further references. 88 See supra, MN 3–5 with further references. 89 On the initiative of Manley Hudson, see ILC, Summary Records of the Meetings of the 2nd Session, ILC Yearbook (1950), vol. I, 204–205 (paras. 111–112): ‘Mr. Hudson said that within that zone a sovereign State had also the right to protect its sanitary interests. A number of American States set great store by that principle. He asked Mr. Amado to agree to the word “sanitary” being inserted in his text [‘principles’ which constituted the basis for discussion in the Commission on the topic]. Mr. Amado agreed to the insertion’. 90 See in particular James Carlson, Presidential Proclamation 7219: Extending the United States’ Contiguous Zone – Didn’t Someone Say This Had Something to Do with Pollution?, University of Miami Law Review 55 (2001), 487, 496 et seq. and 520 et seq., with further references; further Noyes/Clinton (note 70), 272; see also Erik J. Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution (1998), 281, who, however, comes to the conclusion: ‘The regime for the contiguous zone in the LOSC seems irrelevant for coastal State jurisdiction over vessel-source pollution.’ 91 ILC, Summary Records of the Meetings of the 5th Session, ILC Yearbook (1953), vol. I, 167. 92 The comment on the article did indeed comprise an explicit reference to emigration. See also ILC, Report of the International Law Commission, UN Doc. A/2456 (1953), GAOR 5th Sess., reproduced in: ILC Yearbook (1953), vol. II, 200, 220 (para. 111): ‘[…] in addition, the Commission thought it necessary to amplify the formulation previously adopted by referring expressly to immigration – a term which is also intended to include emigration’. 87

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‘While it will be reasonable to control immigration, regulation of emigration may lead to abuse – for example, to the arrest, outside the territorial sea, of political refugees leaving a country on a foreign ship.’93

30

The proposal to include ‘immigration’ was eventually rejected by the narrow majority of 10 votes to 8 with 1 abstention: The time was not yet ripe to take a decision with unpredictable implications94 on such a human rights sensitive issue. It was thus only at the 1958 Conference that, adopting a proposal made by the Philippines and Ceylon, ‘immigration’ was added to the catalogue of Art. 24 (1)(a) CTSCZ, which was eventually – in 1982 – to become Art. 33 (1)(a). Migration having evolved into one of the most pressing problems on today’s international agenda, the prevention of illegal immigration has become a matter of top priority for the legislative and law enforcement activities of many coastal States, particularly in the developed world.95 Unfortunately, for a number of States interception operations in the contiguous zone have become a suitable means to prevent migrants from claiming refugee status under national or international legislation. As JOHN HOWARD, then Prime Minister of Australia, frankly admitted in the context of the 2001 MV Tampa/HMS Manoora incident off the Australian coast: ‘At no stage did this latest vessel reach Australian territorial waters. It did enter the contiguous zone, but it did not enter the territorial waters and as a result questions of application for asylum status do not arise.’96

That being said, it follows from the wording and the context of Art. 33 that the coastal State is not authorized to exercise sovereign rights in the field of immigration but is restricted to exercising control over the contiguous zone.97 From a refugee law standpoint this might result in an unsatisfactory situation, but the relevant prerequisites of international refugee law do not address this situation in positive terms.98

4. Hot Pursuit 31

In codifying a well-established rule of customary international law, Art. 111 provides that 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 93 ILC, Summary Records of the Meetings of the 8th Session, ILC Yearbook (1956), vol. I, 75; support by A. E. F. Sandstro¨m: ‘In the case of emigration […] what was involved was the liberty of the individual, whose right to leave his country as he wished should not be infringed, as was clearly stated in Article 13 of the Universal Declaration of Human Rights’, ibid., 76. 94 Cf. Shushi Hsu: ‘To assimilate emigration to immigration would certainly involve a violation of human rights. In view of the disturbed state of the world, the question could not yet be finally settled, however.’, ibid., 76. 95 See for just one example, New Zealand Department of Labour, Immigration Operational Manual (updated 24 March 2014), available at: http://www.immigration.govt.nz/opsmanual/, Y3.60 Powers of entry and search by immigration officers, members of the Police, and Customs officers: ‘[…] d. A member of the Police or a Customs officer undertaking immigration duties may enter and search any ship or other sea-borne vessel within the contiguous zone or territorial sea of New Zealand, if they believe on reasonable grounds that there is on board a person who, if they land in New Zealand, will commit an offence against the Immigration Act 2009, or be liable for deportation, or be or likely to be liable for turnaround.’ 96 Cited after: http://articles.cnn.com/2001-09-09/world/aust.immigrants_1_manoora-asylum-seekers-indonesians?_s=PM:WORLD; for a detailed discussion on the various legal issues involved, in particular the highly controversial practice of towing back vessels out of the contiguous zone or even back to the waters of the origin of the vessels, which may indeed hardly be justified with the rights emanating from the Art. 33 legal regime, see the contributions in: Bernard Ryan/Valsamis Mitsilegas (eds.), Extraterritorial Immigration Control: Legal Challenges (2010), with a rich account both of the applicable legal regime and State practice; on interception operations in the contiguous zone, see in particular Anja Klug/Tim Howe, The Concept of State Jurisdiction and the Applicability of the Non-refoulement Principle to Extraterritorial Interception Measures, in: Ryan/Mitsilegas (eds.), Extraterritorial Immigration Control: Legal Challenges (2010), 69, 93; and Richard Barnes, The International Law of the Sea and Migration Control, in: Ryan/Mitsilegas (eds.), Extraterritorial Immigration Control: Legal Challenges (2010), 103, 126 et seq. 97 Alexander Proelss, Rescue at Sea Revisited: What Obligations Exist Towards Refugees?, SIMPLY 376 (2008), 1, 29. 98 Ibid., 33.

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that State.99 This provision makes a twofold reference to the contiguous zone: It provides, first, that such (uninterrupted) pursuit may not only be commenced when the foreign ship is (still) in the territorial (or archipelagic) waters, but also when it is within the contiguous zone of the pursuing State according to Art. 111 (1) cl. 2. And, second, Art. 111 (1) cl. 4 makes it unambiguously clear that in the latter scenario the pursuit may only be undertaken if a violation of the rights for the protection of which the contiguous zone was established has actually already been committed.100 Thus, in accordance with a long series of case-law, 101 a prior violation of local law (including legislation under the legal regime of the EEZ and the continental shelf under Art. 111 (2)) constitutes an indispensable premise for the taking of enforcement measures via hot pursuit beyond the seawards limits of the territorial sea. Ships in transit within the contiguous zone or inbound ships merely suspected of a possible future violation of local laws (e. g. migrant vessels) may thus under no circumstances be made subject to measures under Art. 111.102

5. Article 33 and Article 303 As technological progress in marine archaeology opens access to ever deeper, previously 32 virtually inaccessible sites, for a number of States, the protection of the underwater cultural heritage has evolved into one of the major incentives to establish a contiguous zone. 103 Due to the rather cryptic reference in Art. 303 (2) to Art. 33, it is difficult to determine the precise relationship between the former provision, aiming at granting coastal States certain prerogatives regarding archaeological and historical objects found at sea, on the one hand and the legal regime of the contiguous zone on the other. This question is not only subject of a lively doctrinal debate,104 but uncertainty also prevails regarding State practice on the issue.

6. State Practice Unlike the legal regime governing the territorial sea (� Art. 16) and other maritime zones 33 (� Arts. 75 and 84), the Convention knows of no publicity requirements regarding the existence, the territorial extent and the exact purposes for which a contiguous zone is established. It is hardly surprising, therefore, that difficulties arise in a number of cases when it comes to verifying the actual state of the law.105 At present, around 90 States have 99 For details, see Guilfoyle on Art. 111 MN 4–5 and Hildebrando Accioly, La zone contigu€ T et le droit de poursuite en haute mer, in: Melanges en I’honneur de Gilbert Gidel (Paris 1961), 1 et seq. 100 Arguably, the term ‘violation’ may comprise – in accordance with the national law at stake and within the limits flowing from generally recognized rule of law principles – criminal liability for preparatory acts as well. 101 See Poulantzas (note 18), 62 et seq. 102 For recent developments, which cast some doubts on the enduring unanimous acceptance of this rigid position in State practice, see ibid., ix et seq.: ‘Recent Developments Relating to Hot Pursuit at Sea’. 103 See e. g. Marina Vokic ´ Zˇ uzˇul/Valerija Filipovic´, Vanjski pojas Republike Hrvatske (The Contiguous Zone of the Republic of Croatia), Poredbeno pomorsko pravo (Comparative Maritime Law) 49 (2010), 73 et seq.; it is, however, highly doubtful whether the legal regime of the contiguous zone authorizes States to use their competences arising from Arts. 33 and 303 to extend the geographical scope of the relevant national legislation, as was done e. g. by the Netherlands, see Harm M. Dotinga/Alex G. Oude Elferink, The Netherlands: Establishment of a Contiguous Zone, IJMCL 22 (2007), 317, 323 et seq.; and for further details Scovazzi on Art. 303 MN 9–11. 104 See also Scovazzi on Art. 303 MN 11–15; and for an in-depth discussion, cf. Rainer Lagoni, Marine Archa¨ologie und sonstige auf dem Meeresboden gefundene Gegensta¨nde, AVR 44 (2006), 328, 331 et seq., with further references. 105 E. g. Belgium’s claim to a contiguous zone ‘hidden’ in Art. 47 of the Act Concerning the Exclusive Economic Zone of Belgium in the North Sea of 22 April 1999, Belgian Official Journal of 10 July 1999 and France’s insertion by virtue of Art. 9 of the Act Concerning the Campaign Against Drug Trafficking and Amending Certain Provisions of the Penal Code of an Art. 44bis in the Customs Code of 31 December 1987, Official Gazette 5 January 1988, 159; see also Jean-Pierre Que´neudec, La France et le droit de la mer, in: Tullio Treves/Laura Pineschi (eds.), The Law of the Sea: The European Union and its Member States (1997), 151, 167 et seq.; although comprised in the DOALOS list, no pertinent legislation at all could be proved to exist in the case of the Republic of Congo, Somalia and Tunisia.

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claimed a contiguous zone,106 which, in view of a total of about 150 coastal States, is still a rather modest number.107 However, since the adoption in 1982 of UNCLOS, the number of claimant States having tripled,108 a clear trend towards a growing awareness and acceptance of the contiguous zone can be discerned. It is noteworthy that in recent times even a considerable number of States not party to the Convention have decided to make a claim to a contiguous zone extending beyond the twelve mile limit from coastal state baselines, including, in particular, the United States.109 This must be seen as a clear indicator that the concept of an enlarged contiguous zone has grown into the corpus of customary international law. 34 The overwhelming majority of States making claims to a contiguous zone do so to the maximum breadth permissible under Art. 33 (83 out of 90 States). None of the claims of the remaining (seven) States exceeds the 24 NM limit.110 With the exception of North Korea,111 the few other earlier pretensions of jurisdictional prerogatives beyond this line have been given up, not at least due to strong and explicit protest by other States. 112 However, what is still a matter of concern on the international agenda are the excessive claims made by certain States with respect to security matters. For fear of possible abuse, this matter was explicitly excluded from the catalogue of purposes for which the contiguous zone may be established.113 Nonetheless, a number of States have included (certain aspects of) national security interests in their national legislation regarding the contiguous zone. 114 These claims are 106 The overwhelming majority of these claims is available under: http://www.un.org/Depts/los/index.htm; see further States with a full 12 NM Contiguous Zone, Georgia: http://faolex.fao.org/faolex/index.htm (key words: ‘contiguous zone Georgia’), Ireland: http://faolex.fao.org/docs/pdf/ire66426.pdf, Japan: http://faolex.fao.org/docs/ pdf/jap1703.pdf, Mozambique: http://faolex.fao.org/docs/pdf/moz22054.pdf, New Zealand: http://www.legislation.govt.nz/act/public/1977/0028/latest/DLM442579.html?search=ts_act%40bill%40regulation%40deemedreg_Territorial+Sea_resel_25_h&p=1, Nicaragua: http://legislacion.asamblea.gob.ni/Normaweb.nsf/ (Ley de Espacios Marı´timos de Nicaragua – Ley No. 420), Oman: http://www.wipo.int/wipolex/en/other_treaties/remarks.jsp?cnty_id=6724C, Portugal: http://faolex.fao.org/docs/pdf/por65641.pdf, Tuvalu: http://faolex.fao.org/docs/pdf/ tuv2191.pdf; for states with a Contiguous Zone of less than 12 NM, see Bangladesh: http://faolex.fao.org/docs/ pdf/bgd4587.pdf. 107 It has been suggested that many States have not claimed contiguous zones ‘possibly relating to a lack of understanding or appreciation of the utility of the powers enjoyed therein […]’, Aldo Chircop et al., The Maritime Zones of East African States in the Law of the Sea: Benefits Gained, Opportunities Missed, African JICL 16 (2008), 121, 132; the long list of absentees includes, inter alia, States such as Germany, Greece, Poland, Sweden, and the United Kingdom, as well as Indonesia and the Philippines (with a coastline of 54.716 KM and 36.289 KM, respectively, information available at: https://www.cia.gov/library/publications/the-world-factbook/. 108 J. Ashley Roach/Robert W. Smith, Excessive Maritime Claims (3rd edn. 2012), 151. 109 See also Noyes/Clinton (note 70), 272. 110 For Finland (2 NM), see: http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/ FIN_1995_Decree.pdf; for Gambia (6 NM), see: http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/ PDFFILES/GMB_1969_Act.pdf; for Saudi Arabia (6 NM), see: http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/SAU_1958_Decree.pdf; for Sudan (6 NM), see: http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/SDN_1970_Act.pdf; for Venezuela (3 NM), see: http://www.un.org/ Depts/los/LEGISLATIONANDTREATIES/PDFFILES/VEN_1968_Decree.pdf; for Lithuania (defined by coordinates), see: http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/doalos_publications/LOSBulletins/bulletinpdf/bulletin61e.pdf; for Bangladesh (6 NM), see: http://faolex.fao.org/docs/pdf/bgd4587.pdf. 111 By virtue of a proclamation of 1 August 1977 by the Supreme Command of the Korean People’s Army North Korea claimed a 50-mile military maritime boundary, see for the English text Choon-Ho Park, The 50-Mile Military Boundary Zone of North Korea, AJIL 72 (1978), 866 (footnote 1); this excessive claim was unanimously rejected by all interested States, for references see Roach/Smith (note 108), 157 (footnote 20); and Park Hee Kwon, The Law of the Sea and Northeast Asia: A Challenge for Cooperation (2000), 33 et seq.; however, North Korea has still not formally given up this claim, which is ‘without precedent in international law, and has no counterparts in other areas of the world’, Lewis M. Alexander, International Perspective on Maritime Boundary Disputes Involving Korea, Japan and China, Korea Observer 30 (1999), 1, 6. 112 For details Roach/Smith (note 108), 156 et seq. 113 See supra, note 40. 114 In particular Bangladesh, Burma, China (see as just one concrete example from Chinese State practice: Art. 13 of the 1992 Law on the Territorial Sea and the Contiguous Zone of 25 Feb. 1992, Collection of the Sea Laws and Regulations of the People’s Republic of China, Office of Policy, Law and Regulation, State Oceanic Administration (1998), 189), India, Haiti, Iran, Pakistan, Sri Lanka, Sudan, Syria, Venezuela, Vietnam, Yemen.

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obviously not only inconsistent with Art. 33, but are also widely and consistently protested against,115 so that these States cannot invoke an authorization under customary international law. Although having an immediate effect on the territorial scope and thus the legality of the exercise of rights under Art. 33, too, the fact that coastal States quite frequently draw baselines that are inconsistent with the relevant provisions of the Convention is not a problem that is specific to the legal regime of the contiguous zone.

115 For a meticulous account of U.S. State practice, Roach/Smith (note 108), 154 et seq. (footnote 16), with occasional references to protests by other States, too.

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PART III STRAITS USED FOR INTERNATIONAL NAVIGATION Section 1 General provisions Article 34 Legal status of waters forming straits used for international navigation 1. The regime of passage through straits used for international navigation established in this Part shall not in other respects affect the legal status of the waters forming such straits or the exercise by the States bordering the straits of their sovereignty or jurisdiction over such waters and their air space, bed and subsoil. 2. The sovereignty or jurisdiction of the States bordering the straits is exercised subject to this Part and to other rules of international law. Bibliography: Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); Bing Bing Jia, The Regime of Straits in International Law (1998); Satya N. Nandan/David H. Anderson, Straits Used for International Navigation: A Commentary on Part III of the United Nations Convention on the Law of the Sea, BYIL 60 (1989), 159–204; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Donat Pharand, The Arctic Waters and the Northwest Passage: A Final Revisit, ODIL 38 (2007), 3–69; Michael C. Stelakatos-Loverdos, The Contribution of Channels to the Definition of Straits Used for International Navigation, IJMCL 13 (1998), 71–89; Sir Ian Sinclair, The Vienna Convention on the Law of Treaties (2nd edn. 1984) Documents: Canada Ministry of Foreign Affairs, Statement by Secretary of State for External Affairs Joe Clark, 1985, reproduced in: CYIL 24 (1986), 418; UN DOALOS, Straits Used for International Navigation: Legislative History of Part III of the United Nations Convention on the Law of the Sea, vol. II (1992) Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Legal Status of Waters Forming Straits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Extent of the Coastal State’s Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Limitation of the Coastal State’s Powers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 4 5 5 7 9

I. Purpose and Function This article is intended to safeguard the coastal sovereignty over territorial waters, above all. In a broader sense, it secures the legal status of any water area that may form part of such a strait as regulated by Part III of the UNCLOS. The effect of this article is that autonomy has been recognised for the regime of straits in relation to other regimes stipulated by the Convention. 2 On its face, the article does not, however, define what a strait used for international navigation is, and no criteria are mentioned. But this is a question that cries out for an answer. While straits are not all identical in terms of geography and usefulness for naviga1

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tion,1 the notion suitable for use in our inquiry may be defined on the basis of a categorization of such straits by reference to the specific regimes of passage that occur within them. The regimes are recognised as being based in treaty or customary law. Only those straits in which a regime of international law applies are relevant to a juridical study of the regime of international straits. For the present purposes, the phrase ‘international straits’ refers to a regime based in customary law, generally considered equivalent to other appellations such as ‘straits used for international navigation’.2 The UNCLOS is silent in places such as this, which are to be examined in the light of customary law not codified in the convention. 3 The presumption is therefore that, when a multilateral treaty like the UNCLOS has apparently left certain notions undefined, it implies a continuing role for customary law.4 There is authority for the view that this is a common feature of today’s multilateral treaties. 5 There may be another reading of the silence of this article over the definition of a strait 3 used for international navigation. Given the principal aim of this article that the legal status of waters forming international straits is not to be affected by the regimes of passage that are applicable in them, there is no need to set out a general definition of such waterways unless their waters are concerned, in the following provisions of the part, with the right of passage for international shipping. In international straits, in the sense as understood here, there are areas of sea that are not subject to the regimes of passage the UNCLOS seeks to establish. A categorical tag of ‘international strait’ in certain straits may overstate the reality as far as the rights and duties of the coastal State and flag State are concerned. This reading seems to be the better one.6

II. Historical Background Art. 34, in more or less its present form, was adopted in 1975, 7 following the proposal 4 submitted by the Private Group on Straits, or the Fiji/UK Group,8 to the third session of UNCLOS III.9 The root of the provision, however, had a lot to do with Spain’s proposal made to the conference in 1974, which sought to emphasize its view that straits involved in the negotiations were part of territorial waters. 10 Spain’s proposal11 predated a similar one from several East European countries led by Bulgaria.12 One interesting development during the negotiation process was the deletion of an earlier expression of ‘strait State’ that appeared only in the Informal Single Negotiation Text of 1975.13 The expression soon afterwards gave way to that of ‘States bordering the straits’, although its brevity may still be welcome. 14 1 It may be called, geographically, a channel, a passage or a minch. Cf. Michael C. Stelakatos-Loverdos, The Contribution of Channels to the Definition of Straits Used for International Navigation, IJMCL 13 (1998), 71, 74–75. 2 Bing Bing Jia, The Regime of Straits in International Law (1998), 32, 56–58. 3 Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 24–25. 4 See Lagoni on Preamble para. 8. 5 Sir Ian Sinclair, The Vienna Convention on the Law of Treaties (2nd edn. 1984), 10. 6 See Jia on Art. 37 MN 10–13. 7 UNCLOS III, Working Papers of the Plenary, UN Doc. A/CONF.62/WP.8/Part II (1975), OR IV, 145. 8 Satya N. Nandan/David H. Anderson, Straits Used for International Navigation: A Commentary on Part III of the United Nations Convention on the Law of the Sea, BYIL 60 (1989), 159, 163. 9 UN DOALOS, Straits Used for International Navigation: Legislative History of Part III of the United Nations Convention on the Law of the Sea, vol. II (1992), para. 146. 10 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 296 (MN 34.3). 11 Second Committee UNCLOS III, Spain: Draft Articles on the Nature and Characteristics of the Territorial Sea, UN Doc. A/CONF.62/C.2/L.6 (1974), OR III, 187. 12 Second Committee UNCLOS III, Bulgaria et al.: Draft Articles on Straits Used for International Navigation, UN Doc. A/CONF.62/C.2/L.11 (1974), OR III, 189. 13 Nordquist/Nandan/Rosenne (note 10), 297 (MN 34.4). 14 A language consideration was behind this development: ibid., 300 (MN 34.8(g)).

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III. Elements 1. Legal Status of Waters Forming Straits The issue of the legal status of the waters that form straits is central to the understanding and classification of straits that are relevant to international law. However, the wording of Art. 34 gives an inescapable impression that it does not unambiguously state the legal status which it purports to clarify. Interpretation is certainly open in respect of such wording. The powers of the coastal State, or a State bordering a strait, are probably of two kinds: those of sovereignty and those of jurisdiction. It follows that the waters concerned may be of at least two types: territorial waters, including those newly enclosed internal waters as a result of the application of Art. 7, and other waters, such as waters forming the contiguous zone or exclusive economic zone (EEZ), which are subject to coastal jurisdiction in accordance with the relevant parts of the UNCLOS. 6 While a strait with a high sea or EEZ corridor does not require the application of the regime of passage provided in Part III, the fact that a strait is recently enclosed by straight baselines may result in a change in the regime of navigation that had applied prior to the enclosure, with the waters forming it becoming internal waters. Art. 34, in itself, does not address the issue of the impact of the changed status of the waters forming an international strait upon the regime of passage that had existed beforehand or exists thereafter. 15 There has been the argument that the changed status of such waters can lead to the conclusion that, in respect of particular cases, there will be no longer the right of innocent passage through straits after the change of the status of the waters forming them. 16 One such case is the Canadian Arctic Archipelago,17 which was encircled by Canadian straight baselines prescribed in a statute in 1985, with the purported effect that the waters enclosed, comprising the Northwest Passage, and became Canada’s ‘historic internal waters’. 18 Having said that, the terms of Art. 34 hint strongly at a parallelism between the legal status of the waters forming an international strait and the regime of passage applicable to it. For whatever may be the regime of passage, the status of these waters is not affected by that regime. However, the status of these waters is a narrower-than-normal concept in this context, in that the legal regime, the content of which is normally determined in other parts of the sea by the legal status of the waters, is no longer determined by a change in the status of the waters forming international straits. This is supported by the terms of Art. 34 (2), which subjects coastal sovereignty and jurisdiction to the provisions of Part III and other rules of international law, and of course, Art. 35 (a). It may be inferred that the consequences of a change in the legal status of the waters comprising international straits are limited by the rules of Part III, and that a previously existing regime of passage remains after the change of the status under discussion. The existing rules of Part III are adequate to deal with the change in question such that there seems to be no need to discuss the possible role, if any, of Art. 8 (2) that preserves the right of innocent passage in territorial waters now enclosed as internal waters. 19 It may be concluded that the regime of international straits under Part III, with its components of rules for transit and innocent passage, is of a both sui generis and sui juris nature. Between the legal nature of the body of waters forming such straits and the applicable regime of passage as laid down in Part III, the latter takes precedence over rules associated with the former. 5

15 Arts. 34 and 35 (a) both look at this matter from the angle of the regime of navigation impacting upon the legal status of the waters forming international straits. 16 Donat Pharand, The Arctic Waters and the Northwest Passage: A Final Revisit, ODIL 38 (2007), 3, 43. 17 Ibid., 15. 18 Canada Ministry of Foreign Affairs, Statement by Secretary of State for External Affairs Joe Clark, 1985, reproduced in: CYIL 24 (1986), 418; for earlier developments, see Pharand (note 16), 10–11. 19 Cf. Jia on Art. 35 MN 7–9; see further Nordquist/Nandan/Rosenne (note 10), 307 (MN 35.8(a)).

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2. Extent of the Coastal State’s Powers It is submitted that the coastal State’s powers under Art. 34 (1) are those recognised 7 under the regimes of internal waters, the territorial sea, the EEZ, and the continental shelf. They also affect the superjacent airspace. The distinction between sovereignty and jurisdiction derives from the difference between the powers exercisable in the territorial sea and internal waters, and those in the EEZ and the continental shelf. 20 Those powers are, however, hemmed in by the applicable regime of passage provided under Part III. Only where those powers are not so limited by the UNCLOS can they be extended to matters on the basis of general international law.21 An example in support of this interpretation may be found in Egypt’s declaration upon ratification of the UNCLOS in 1983, which stated that: ‘The provisions of the 1979 Peace Treaty between Egypt and Israel concerning passage through the Strait of Tiran and the Gulf of Aqaba come within the framework of the general re´gime of waters forming straits referred to in part III of the Convention, wherein it is stipulated that the general re´gime shall not affect the legal status of waters forming straits and shall include certain obligations with regard to security and the maintenance of order in the State bordering the strait.’ 22

The point is rather that the legal status of the waters forming international straits 8 referred to in that statement will be qualified by Part III, above all. The regulatory powers of the coastal State in international straits are defined, in particular, by Art. 42, regardless of their subject-matters being perceived to be of greater importance by the coastal State. This is argued on the premise that the coastal State concerned must of course be a party to the UNCLOS, since it is not absolutely settled that Art. 42 reflects customary law. But outside the scope of Part III, the coastal State naturally retains other powers over the waters forming the straits, whatever the scope of those remaining powers may be. For instance, where an international strait contains an EEZ corridor and international shipping can only pass through the part of the strait comprising territorial sea, by reason of necessity, the coastal State has all the powers in the corridor as recognised by the UNCLOS in respect of the EEZ.

3. Limitation of the Coastal State’s Powers As the coastal State’s powers are over the waters forming a coastal strait that meets the 9 requirements of Part III, the superjacent airspace, and the subjacent seabed and subsoil, interference with the right of transit passage and the right of non-suspendable innocent passage, as enshrined in the UNCLOS, are inevitably deemed a concern for the user States. A particular view was expressed by the International Civil Aviation Authority in 1984 that the exercise by the coastal State of its powers ‘in no circumstances’ entailed the suspension or limitation of the right of transit passage; nor could it result in the imposition by the coastal State of its own rules of the air.23 As will be shown in the remaining commentaries to this part, Part III contains overlapping provisions to ensure non-interference with, and non-hampering of, the rights of passage and overflight set forth in it.

20

Nordquist/Nandan/Rosenne (note 10), 295 (MN 34.1). Jia (note 2), 149. 22 Egypt’s Declaration made upon Ratification of the UNCLOS in 1983, available at: http://treaties.un.org/ Pages/ViewDetailsIII.aspx?&src=TREATY&mtdsg_no=XXI~6&chapter=21&Temp=mtdsg3&lang=en. 23 Nordquist/Nandan/Rosenne (note 10), 299 (MN 34.8(f)). 21

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Article 35 Scope of this Part Nothing in this Part affects: (a) 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; (b) the legal status of the waters beyond the territorial seas of States bordering straits as exclusive economic zones or high seas; or (c) the legal regime in straits in which passage is regulated in whole or in part by longstanding international conventions in force specifically relating to such straits. Bibliography: Hugo Caminos, The Legal Regime of Straits in the 1982 United Nations Convention on the Law of the Sea, RdC 205 (1987-V), 9–246; Milen Dyoulgerov, Navigating the Bosporus and the Dardanelles: A Test for the International Community, IJMCL 14 (1999), 57–100; Lauri Hannikainen, The Continued Validity of the Demilitarised and Neutralised Status of the Åland Islands, Zao¨ RV 54 (1994), 614–651; Marı´a Teresa Infante, Straits in Latin America: The Case of the Strait of Magellan, ODIL 26 (1996), 175–187; Marie Jacobsson, Sweden and the Law of the Sea, in: Tullio Treves/Laura Pineschi (eds.), The Law of the Sea: The European Union and its Member States (1997), 495–520; Bing Bing Jia, The Regime of Straits in International Law (1998); Anatolii L. Kolodkin/Vasilii N. Gutsuliak/Iulia V. Bobrova, The World Ocean: International Legal Regime (translated by William Butler, 2010); Martti Koskenniemi/Marja Lehto, Finland and the Law of the Sea, in: Tullio Treves/Laura Pineschi (eds.), The Law of the Sea: The European Union and its Member States (1997), 127–150; Stephen Houston Lay/Robin Churchill/ Myron Nordquist (eds.), New Directions in the Law of the Sea: Documents, vol. II (1973); Djamchid Momtaz, La Re´gime de Passage dans le De´troit d’Hormuz, in: Rafael Casado Raigo´n (ed.), L’Europe et la mer (peˆche, navigation et environnement marin) (2005), 167–174; John N. Moore, The Regime of Straits and the Third United Nations Conference on the Law of the Sea, AJIL 74 (1980), 77–121; Satya N. Nandan/David H. Anderson, Straits Used for International Navigation: A Commentary on Part III of the United Nations Convention on the Law of the Sea, BYIL 60 (1989), 159–204; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); William M. Reisman/Gayl S. Westerman, Straight Baselines in Maritime Boundary Delimitation (1992); Hugo Tiberg, Mysteries of Water Boundaries: Baselines and Boundaries around Sweden’s Coasts, in: Ove Bring/Said Mahmoudi (eds.), Current International Law Issues: Nordic Perspectives (1994), 195–217; Hugo Tiberg, The Practice and Value of Compromise in Ocean Boundary Law: The Experience of Sweden, in: David D. Caron/Harry N. Scheiber (eds.), Bringing New Law to Ocean Waters ¨ nlu¨, The Legal Regime of the Turkish Straits (2002) (2004), 419–425; Nihan U Documents: IMO, Ships’ Routeing (2010); IMO Res. A.827(19) of 23 November 1995; UN DOALOS, The Law of the Sea: National Legislation on the Territorial Sea, the Right of Innocent Passage and the Contiguous Zone (1995); US Department of State, Continental Shelf Boundary: Finland – Sweden, Limits in the Seas No. 71 (1976); US Department of State, United States Responses to Excessive National Maritime Claims, Limits in the Seas No. 112 (1992); US Department of State, Digest of United States Practice in International Law (2008); US Naval War College, Annotated Supplement to the Commander’s Handbook on the Law of Naval Operations, International Law Studies 73 (1999) Cases: Reference re: Ownership of the Bed of the Strait of Georgia and Related Areas [1984] 8 DLR (4th) 161 (Canada); ICJ, Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v. Albania), Merits, Judgment of 9 April 1949, ICJ Reports (1949), 4; ICJ, Case Concerning Passage through the Great Belt (Finland v. Denmark),Order of 10 September 1992, ICJ Reports (1992), 348; ICJ, Fisheries Case (United Kingdom v. Norway), Judgment of 18 December 1951, ICJ Reports (1951), 116 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Previously Territorial Waters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Maritime Zones Excluded From Part III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Existing Treaties Relating Specifically to Passage Through Straits . . . . . . . . . . . . . .

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I. Purpose and Function This article expands on what has already been set out as a principle in Art. 34. 1 The title of 1 this article, ‘Scope of this Part’, may not clearly indicate the gist of the provision, because the title may have two connotations. On the one hand, it may be concerned with the question as to whether the rules of this Part have such a scope of applicability as to affect the legal status of other maritime zones within straits as established under the UNCLOS. This interpretation is supported by the content of this article. On the other, it may be on the question of which regimes are applied to which categories of strait. This interpretation is only partly supported by Art. 35 (c). Actually, the article in substance seems to be inclusive of both connotations. Another point about this article is that it implicitly reinforces the view, which impacts upon 2 the understanding of Art. 34, that international straits, to which Part III applies, are those in which there is an overlap of the territorial sea of the coastal State or States. 2 This is confirmed by the existence of provisions excluding straits with high-sea or exclusive economic zone (EEZ) routes through them, or those formed by internal waters. However, a third point regarding the purpose of this article should also be made. Interna- 3 tional straits in terms of Part III are those in which a specific regime of passage applies in pursuance of that part. This presumption does not exclude at all the fact that international straits are of more types than are recognized by Part III. International straits, as a category, include not only Part III-type straits,3 but also straits excluded from Part III. This latter subcategory covers, of course, the types of straits envisaged in Art. 35 (c) and Art. 36. But it is argued here that the sub-category may also include straits that meet the description of Art. 35 (a), as long as they have been used for international navigation. In other words, a strait used for international navigation may be one composed of internal waters, even without anything to do with the establishment of straight baselines. The Kerchensk Strait, linking the Sea of Azov and the Black Sea, is an example. It seems that this narrow strait has been part of the internal waters of formerly the USSR, and now Ukraine and Russia, in the same way that the Sea of Azov has been so.4 This evolvement has seldom attracted much interest from outside the two countries,5 but it seems to be an interesting case of an international strait composed of internal waters.6 It may also be speculated that international straits may link a part of the high seas or EEZ not only with the territorial sea of a foreign State, but with the internal waters of a foreign State.7 An example is the Strait of Juan de Fuca between Canada and the US. It has been recognized by both States that the strait is an international strait, even though the Canadian half of the strait has been deemed part of Canadian internal waters by judicial decision. 8 This scenario is to be expected, since Part III is not supposed to exhaust the rules of passage through, nor the list of, international straits. 1

See Jia on Art. 34 MN 5–6. Cf. UNCLOS III, Canada, Chile and Norway: Aide Memoire, 30 April 1975 (1975, mimeo.), reproduced in: Renate Platzo¨der (ed.), Third United Nations Conference on the Law of the Sea: Documents of the Geneva Session 1975 (1975), 208–209. 3 It should be noted that the type of straits envisaged in Art. 38 (1) are not excluded from Part III. For further details see Jia on Art. 38 MN 10–15. 4 Anatolii L. Kolodkin/Vasilii N. Gutsuliak/Iulia V. Bobrova, The World Ocean: International Legal Regime (2010), 191. 5 It was subject to a study on historic bays in 1957, see UNCLOS I, Historic Bays: Memorandum by the Secretariat of the United Nations, UN Doc. A/CONF.13/1 (1957), OR I, 1, 3 (para. 12). No objection was recorded from other States. 6 See the bilateral agreement between Russia and Ukraine of 2003 on, inter alia, the passage regime applicable to the strait: Kolodkin et al. (note 4), 191. 7 For those putting in at Mariupol (Ukraine) or Taganrog (Russia), the Kerchensk Strait has its main navigable route through the Ukrainian part of the strait, known as the Kerch-Enikul Canal: Kolodkin et al. (note 4), 187–188. 8 Reference re: Ownership of the Bed of the Strait of Georgia and Related Areas DLR 8 (1984) (4th)161, 163 (Canada) (per Justice Dickson); for further analysis, see Bing Bing Jia, The Regime of Straits in International Law (1998), 17. 2

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II. Historical Background When the ‘Consensus Text’ of the Private Group on Straits, dated 18 April 1975, came out, its definition of straits used for international navigation followed the criteria laid down in the Corfu Channel Case9.10 Yet, it gave rise to disquiet on the part of Canada, Chile and Norway, which jointly submitted an aide-memoire on 30 April 1975.11 The main contention of the three countries was that the definition in the Consensus Text ‘clearly envisages the characterization of stretches of internal waters as international straits’, thus negating the regime of internal waters ‘already established by 41 States on the basis of the straight baseline system along their coasts especially where there is a fringe of islands in accordance with the decision’ of the ICJ in the Fisheries Case12 and the Convention on the Territorial Sea and the Contiguous Zone of 195813 (CTSCZ).14 This concern was addressed by the Informal Single Negotiation Text, and eventually by Art. 35 (a). 5 It has been noted before that, prior to 1949, treaties related to specific straits were often the basis on which general rules for regulating international straits were formulated, but that the 1930 Hague Conference and especially the 1949 Corfu Channel Case had revealed a growing trend in State practice in separating general rules from existing treaties. 15 Turkey, for one, had succeeded in prompting the International Law Commission to insert an exclusionary clause in the commentary on its 1956 Draft Articles concerning the Law of the Sea. 16 Art. 25 CTSCZ states: 4

‘The provisions of this Convention shall not affect conventions or other international agreements already in force, as between States Parties to them.’

6

Art. 35 (c) has, therefore, reproduced what had been known to States during the negotiation of the CTSCZ.17 Indeed, many of the early proposals tabled at UNCLOS III contained provisions to this effect, showing that a consensus had emerged even at the early stages of the negotiations.18 One change in wording may be noteworthy, namely, the addition of the phrase ‘in part’, in the ‘Consensus Text’ of 1975 mentioned above. The phrase did not appear until this paper came out, after, among others, Denmark expressed its concern with the Baltic Straits in the scheme of things.19 This phrase would allow the Baltic Straits to be exempted from Part III, even though the relevant treaties were only partly concerned with passage.20 9 ICJ, Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v. Albania), Merits, Judgment of 9 April 1949, ICJ Reports (1949), 4. 10 UNCLOS III, Consensus Text of Private Group on Straits, 18 April 1975 (1975, mimeo.), reproduced in: Platzo¨der (note 2), 204. 11 Canada, Chile and Norway: Aide Memoire (note 2), 208–209. 12 ICJ, Anglo-Norwegian Fisheries Case (United Kingdom v. Norway), Judgment of 18 December 1951, ICJ Reports (1951), 116. 13 516 UNTS 205 14 Ibid., Canada, Chile and Norway: Aide Memoire (note 2) 208. 15 Jia (note 8), 109. 16 ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12, 22–23 (Art. 24, para. 5). 17 Jia (note 8), 101. 18 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 302–303 (MN 35.2–35.3). 19 Satya N. Nandan/David H. Anderson, Straits Used for International Navigation: A Commentary on Part III of the United Nations Convention on the Law of the Sea, BYIL 60 (1989), 159, 175. 20 Jia (note 8), 116–117. Art. 1 of the 1857 Copenhagen Convention envisaged the possibility that further treaties might be entered into force between Denmark and third States to the treaty to regulate fiscal and customs matters, further information on the 1857 Copenhagen Convention are available at: http://unterm.un.org/dgaacs/unterm.nsf/8fa942046ff7601c85256983007ca4d8/e2ceeeb0f547b4138525708b006e50ec?OpenDocument.

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III. Elements 1. Previously Territorial Waters Art. 35 (a) provides one particular detail to what has been generally stated in Art. 34 (1): that 7 any of the regimes of passage provided in Part III cannot change the legal status of the waters forming an international strait. Over such waters, the States bordering the straits are entitled to exercise whatever powers allowed under the UNCLOS. However, there is one exception to this general injunction, namely, where the existence of internal waters in the strait comes about as a result of the establishment of local straight baselines. The language of Art. 35 (a) takes a sharp turn in those circumstances. While it does not say in what manner that provision will affect newly established internal waters, the implication seems to be that reference is to be made to Art. 8 (2),21 which regulates the immediate consequence of drawing straight baselines for passage in former territorial waters. That consequence is modified by Art. 8 (2) in preserving the existing right of innocent passage in the waters. In Part III, the negotiating States also found it necessary to incorporate a similar provision to Art. 8 (2), namely, Art. 35 (a). 22 Two questions arise: first, there is the question of whether the geographical criterion can dominate the choice of a regime of passage; secondly, whether the continued right of passage has retroactive effect in respect of a system of straight baselines already established by a State prior to its becoming a party to the UNCLOS. The first question arises because there may be straits linking areas of the high sea or EEZ 8 regardless of their being enclosed by straight baselines or not. The case of the Northwest Passage could be an example. As a route rendered usable by local navigational aids, it could constitute a strait in geographical sense, lying between two parts of the high seas or EEZ. 23 Following the establishment of Canadian straight baselines in 1986 around the archipelago that includes the Passage, the status of the waters forming the straits of the Passage has changed from that of territorial sea to one of internal waters. It may be said that, whether before or after 1986, the routes of the Passage have always linked two areas of the EEZ or the high seas between the Chukchi Sea and the North Atlantic. In the light of that geographical situation, the Passage could constitute an Art. 38-type strait. This question was not dealt with thoroughly in the UNCLOS negotiations and has not been comprehensively addressed in in literature. 24 As to the second question, it has been suggested that the regime applicable under Art. 35 9 (a) may be that of transit passage.25 But the regime of transit passage came into existence as a treaty-based regime only with the adoption of the UNCLOS in 1982, and further, only with the entry into force of the Convention for a particular State party. It is known that the US has deemed the transit passage regime as reflective of customary law, which it has asserted in its use of the Northwest Passage, and that it has never recognized Canadian’s straight baselines of 1986.26 While it may be possible to see Art. 35 (a) as bolstering a trend initiated in Art. 5 (2) CTSCZ, two possible scenarios exist. First, if the trend signifies a rule of customary law, the US could be justified in asserting the right of transit passage, as understood by itself, through the Northwest Passage covered by Canadian internal waters. The condition is of course that the right has been in existence. Secondly, if the trend is not yet a customary rule, the US vessels could still carry on passing through the waters on the basis of a claim of a customary right of transit passage, because the right is merely reflected in the UNCLOS, and 21 Nordquist/Nandan/Rosenne (note 18), 306 (MN 35.7(a)). It should be noted that Art. 35 (a) explicitly refers to Art. 7. 22 Jia (note 8), 8–9. 23 Cf. Jia on Art. 37 MN 8–9. 24 Canada, Chile and Norway: Aide Memoire (note 2), 208; Nandan/Anderson (note 19), 173–174. 25 Nordquist/Nandan/Rosenne (note 18), 307 (MN 35.7(a)). 26 US Department of State, Digest of United States Practice in International Law (2008), 631 (citing a speech by Mr. Roach, Office of the Legal Adviser, of March 2008).

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it has a separate existence outside of the scope of the treaty. Both claims could well be opposed by Canada in insisting on the conventional nature of that right of transit passage. In this latter case, Art. 35 (a) is likely to be irrelevant to the dispute. If the US became a party to the UNCLOS in the near future, however, it could rely on Art. 35 (a) to maintain its right of transit passage. But then Canada may argue that the provision did not even exist as a treaty rule when its Arctic straight baselines were established, and that it could not be retroactively applied.27 The question will boil down to whether the term ‘establishment’ means an action in accordance with the method set forth in Art. 7 unilaterally employed by a coastal State, or unilaterally used by it but with international acquiescence. However, between two States parties to the UNCLOS, Art. 35 (a) will be in force only in those newly enclosed internal waters following the entry into force of the UNCLOS for the States concerned.

2. Maritime Zones Excluded from Part III This is an issue that partly goes to the classification of straits covered by the regimes of Part III.28 In straits which are affected by the extension of internal waters or territorial sea, there may still be pockets of high seas or EEZ left, which may even form a thoroughfare through the whole length of a strait, as envisaged in Art. 36. Art. 35 (b) moves a step further than Art. 34, in that it implies the existence of straits wider than 24 NM at the narrowest. But it also expresses the rule that the regimes of passage in Part III do not affect any waters beyond the territorial sea, so that the regimes for those wider waters, be them high seas or parts of the EEZ, apply instead. 11 In this regard, it may be useful to take another look at the issue of internal waters, as opposed to the EEZ or high seas, within a strait subject to Part III. As was said above, internal waters within such a strait are generally excluded from Part III’s rules of passage. The way Art. 35 (a) operates will therefore create a legal restriction upon foreign shipping and aircraft such that they have to confine their movement within or over the strait to the territorial stretches, since their rights of transit or overflight cannot affect the legal status of areas of sea that lie beyond territorial waters within the strait. In those areas, different rules of the UNCLOS and international law apply. Thus, no passage may be conducted by foreign shipping or aircraft within or over internal waters, for example. It may be wondered how much of this was understood at the time when the issue was brought up in the ‘Consensus Text’ in 1975. 29 While the saving clause in Art. 35 (a) could deal with cases after the UNCLOS came into force for the States concerned, it must be plain that even then, there may be straits whose internal waters come with the application of the normal baseline system. It follows that internal waters, the EEZ, and the high seas within the straits retain their respective status and the associated legal regimes, to the exclusion of Part III. 10

3. Existing Treaties Relating Specifically to Passage Through Straits 12

Art. 35 (c) leaves individual regimes based on existing treaties related to certain international straits intact. To qualify for such exemption from Part III, four conditions are laid down in Art. 35 (c) for any putative treaty-based regime. First, the treaty concerned must be related to passage. Second, that treaty may regulate passage in a strait in whole or in part. Third, the treaty must be long-standing and still in force. Fourth, the treaty must be ‘specifically relating to such straits’. The first condition implies that, as long as the treaty relates to passage, the whole regime in force for the strait would be exempted from Part III. The details of the regime and its further development are for the States involved to determine. The fourth condition may 27

Art. 28 Vienna Convention on the Law of Treaties (VCLT). Jia (note 8), 15. 29 But this is not uniformly accepted by States, and the US for one regards that the regime of straits applies to the whole area throughout them, see: US Naval War College, Annotated Supplements to the Commander’s Handbook on the Law of Naval Operations, International Law Studies 73 (1999), 175. 28

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state the obvious, but it guards against any mistaken belief, which may arise from a loose reading of evidence of State practice, that the CTSCZ, for instance, could be such a treaty, being long-standing and regulating passage. That treaty is obviously not specifically related to a particular strait, but to all straits that may come under the scope of its Art. 16 (4) CTSCZ. As between parties to both the CTSCZ and the UNCLOS, Art. 45 takes the place of Art. 16 (4) CTSCZ (�Art. 311 (1)), and does not give rise to the application of Art. 35 (c). Two further points regarding Art. 35 (c) are to be discussed below. First, the phraseology of Art. 35 (c) may still require clarification. On the one hand, the 13 phrase ‘in whole or in part’ seems to have by now become free of further complications since its inclusion in the final text of the UNCLOS, in that it is understood to require relevant treaties to be concerned, to all or some degrees, with the regime of passage that is applicable to a certain strait.30 As this type of treaty does not contemplate overflight, they regulate the use of the straits ‘in part’.31 Further, a partial influence of existing international treaties may assume some significance in application. For it is reasonable to say that in a strait, it is entirely possible that the treaties relating to the strait are confined in scope of application to only a part of the water area concerned. For instance, the part of the area concerned is where the main navigable channel lies or where the deepest channel runs. In fact, there is no reason why even an area where international traffic does not ply cannot be regulated by international treaties for a variety of historical reasons. Either of those two areas would meet the requirement of ‘in part’ without difficulty. On the other hand, the question remains as to the interpretation of the phrase ‘long-standing’. This task has been helped by the qualification that the treaties must be ‘in force’, at the time when the UNCLOS was concluded. Retroactivity in time is implied by the wording. The phrase ‘long-standing’ is perhaps not any clearer than such a term as ‘existing’, unless it was intended, at the time it appeared for the first time in the ‘Consensus Text’, to be specific as to particular straits. But that is not obvious from either the wording of that text or the subsequent documents circulated at the conference. It also follows from the preceding that the 1979 Peace Treaty between Israel and Egypt may not come under Art. 35 (c). 32 But there is no denying its consistence with Art. 311 (2).33 Indeed, for parties to the UNCLOS, any future treaty regime for an international strait will have to be assessed by reference to Art. 311 (2), rather than Art. 35 (c). Secondly, it has been noted that there has emerged a tendency in practice, with the adoption 14 of the UNCLOS, for the coastal State to apply such general law as set forth in Part III and the special treaties without distinction.34 This tendency seems to grow ever stronger.35 An example would be of Turkey’s regulations regarding the Turkish Straits. The 1994 Regulations, with a view to regulating especially the passage of tankers of oil or other toxic substances, or nuclear-powered ships, included not only rules on compulsory use of designated sea lanes in the straits, but also temporary suspension of passage on account of local drilling activities, enforcement actions, and combat of marine pollution.36 The traffic separation scheme currently applicable in the Turkish Straits, while not envisaged in the Montreux Convention 37 (regarded as the special treaty for the straits)38, has been implemented by Turkey since 1994 following recommendations of the International Maritime Organization’s (IMO) Maritime 30

Nandan/Anderson (note 19), 175; Nordquist/Nandan/Rosenne (note 18), 307 (MN 35.7(c)). Marı´a Teresa Infante, Straits in Latin America: The Case of the Strait of Magellan, ODIL 26 (1996), 175, 183. 32 Peace Treaty Between the State of Israel and the Arab Republic of Egypt, 26 March 1979, available at: http:// unispal.un.org/UNISPAL.NSF/0/3A159C13D5084C1085256CED00746FAA; further, see Jia (note 8), 127. 33 Cf. Egypt’s Declaration made upon Ratification of the UNCLOS in 1983, available at: http://treaties.un.org/ Pages/ViewDetailsIII.aspx?&src=TREATY&mtdsg_no=XXI~6&chapter=21&Temp=mtdsg3&lang=en. 34 Jia (note 8), 110. 35 ICJ, Case Concerning Passage through the Great Belt (Finland v. Denmark), Counter-Memorial submitted by the Government of the Kingdom of Denmark of 18 May 1992, paras. 659, 670. 36 Nihan U ¨ nlu¨, The Legal Regime of the Turkish Straits (2002), 66–70. 37 Montreux Convention Regarding the Regime of the Straits, 20July 1936, LNTS 173, 213. 38 Hugo Caminos, The Legal Regime of Straits in the 1982 United Nations Convention on the Law of the Sea, RdC 205 (1987-V), 9, 130. 31

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Safety Committee.39 By Resolution of 23 November 1995, the IMO Assembly also adopted certain rules and recommendations regarding issues other than traffic separation in the straits, which were not intended by the Assembly to affect or prejudice the right of any ship using the straits under international law, including the UNCLOS and the Montreux Convention. 40 It may be said that a legal regime contemplated by Art. 35 (c) would grow independently of the UNCLOS, taking on board practices and rules that may seem appropriate for a better management and implementation of existing rules with respect to passage. This growth of the legal regime is inevitably a multilateral process in reality, considering the layered interests of the coastal and user States. Thus, when the 1994 Turkish Regulations met with strong opposition from user States, Turkey amended them in 1998.41 At times when, as in the case of the Turkish Straits, IMO rules and recommendations differ from local regulations in various respects, it should perhaps be borne in mind that those straits are special even under the UNCLOS, so that Part III does not bear on them. It would follow that the local regulations may well be more stringent than Part III allows. The question is rather whether local regulations conflict with certain long-standing treaties still in force for the waterways, together with relevant treaties concluded under the auspices of the IMO, rather than Part III. In any case, it must be added that Turkey is not to become a party to the UNCLOS in the short term, having voted against the treaty in 1982. In this light, Turkey is a third State that benefits from an exclusionary right conferred by a multilateral treaty.42 Alternatively, it is probably also safe to say that the right has a parallel in customary law, not only because of Art. 25 CTSCZ, and the common understanding during the negotiation of the UNCLOS,43 but also because of recognition in other venues that the Turkish Straits are regulated by special treaties. 44 15 Art. 35 (c) is not without controversy in its implementation. It is recalled, for example, that the US has not recognized Sweden’s claim that the Aaland Strait falls within the scope of that provision.45 The 1921 Convention Respecting the Non-Fortification and Neutralization of the Aaland Islands46 (Aaland Convention) prohibits the entry and stay of, among others, foreign warships in the zone defined under Art. 2, but allows their innocent passage through the territorial waters of the Islands, i. e. Finnish territorial waters. 47 This treaty, still in force,48 does impact on overall passage through the strait, in that it specifies innocent passage as the regime applicable to the territorial waters concerned. Since the territorial sea of Finland is limited to 3 NM in the strait by Art. 2 (II) Aaland Convention, and before 1979 Sweden adhered to a 4 NM, and thereafter, 12 NM territorial sea, there could have never been a corridor of the high seas through the strait, because of the presence of the Ma¨rket Skerry, through which the borders between Sweden and Finland run,49 later adjusted from the provision under the Aaland Convention. The skerry has been a base point for the drawing of ¨ nlu¨ (note 36), 64; cf. IMO, Ships’ Routeing (2010), III-19 – III-23. U IMO Res. A.827(19) of 23 November 1995. 41 U ¨ nlu¨ (note 36), 65–66; further, see Milen Dyoulgerov, Navigating the Bosporus and the Dardanelles: A Test for the International Community, IJMCL 14 (1999), 57, 89–96. 42 Art. 36 (1) VCLT provides that ‘[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. Its assent shall be presumed so long as the contrary is not indicated, unless the treaty otherwise provides’. 43 John Norton Moore, The Regime of Straits and the Third United Nations Conference on the Law of the Sea, AJIL 74 (1980), 77, 111. 44 E. g., IMO Res. A.827(19) of 23 November 1995. 45 US Department of State, United States Responses to Excessive National Maritime Claims, Limits in the Seas No. 112 (1992), 67; but note that Finland’s view agrees with the Swedish position, see the Finnish Declaration made upon Signature, and Confirmed upon Ratification of the UNCLOS, available at: http://treaties.un.org/ pages/ViewDetailsIII.aspx?&src=TREATY&mtdsg_no=XXI~6&chapter=21&Temp=mtdsg3&lang=en. 46 Convention Respecting the Non-Fortification and Neutralization of the Aaland Islands, 6 April 1921, AJIL 17 (1923), 1. 47 Art. 5 Aaland Convention. 48 Art. 8 Aaland Convention in fact provides for its perpetual validity. 49 Art. 2 (i) Aaland Convention. 39 40

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the demilitarized and neutralized zone pursuant to the Aaland Convention, 50 from one side of which the sea extends for about 7 NM to the rocks marking Sweden’s baselines. 51 The Swedish territorial sea was extended to 12 NM in 1979, subject to any frontier agreed with Finland between their overlapping continental shelves or fishing zones, and the median line between the two countries.52 Finland extended its territorial sea from 4 NM to 12 NM in 1995, and also left the outer limit of the territorial sea in accordance with the boundary of Finland’s fishing zone and the continental shelf as agreed with Sweden in 1972.53 The result of this extension did not affect the fact that the Aaland Strait, or, in real terms, its western and navigable channel, falls mainly within the territorial sea of Sweden, 54 and that the waters to the east of the Ma¨rket Skerry are considered Finnish internal waters.55 That fact probably accounts for the Swedish interest in maintaining the innocent passage regime in the strait, not to mention its will to avoid the regime of transit passage completely in at least some of its straits.56 While it may be true that since 1995 Sweden has given up on asking for prior notice for 16 foreign ships to conduct innocent passage through its territorial sea, 57 it is still the case that the Aaland Strait is subject to a more restrictive regime of navigation than that of transit passage. However, it is important that a case can be made for Sweden’s reliance on Art. 35 (c), as the passage through the strait in question is affected in part by the Aaland Convention. Without the Aaland Convention, it would be possible to argue that the regime of transit passage as laid down in the UNCLOS may be applicable to the waterway due to the geographical situation of the strait and the fact of its use for international navigation. 58 But as it stands, passage through that waterway, as a geographical whole, is partly affected by a long-standing international treaty, whether the navigable route lies in Swedish or Finnish territorial sea. The preceding analysis does not cover the separate question as to whether Art. 35 (c) should be regarded as a customary law rule, supposing there is a parallel argument that the right of transit passage as provided by the UNCLOS reflects customary law. The preliminary suggestion is that the answer to that question is in the affirmative.59

50 Cf. Lauri Hannikainen, The Continued Validity of the Demilitarised and Neutralised Status of the Åland Islands, Zao¨RV 54 (1994), 614, 617. 51 Hugo Tiberg, Mysteries of Water Boundaries: Baselines and Boundaries Around Sweden’s Coasts, in: Ove Bring/Said Mahmoudi (eds.), Current International Law Issues: Nordic Perspectives (1994), 195, 216; cf. Stephen H. Lay/Robin R. Churchill/Myron H. Nordquist (eds.), New Directions in the Law of the Sea: Documents, vol. II (1973), 888; US Naval War College (note 29), 121–122 (footnote 36), the US also regarded the strait at the narrowest as of 16 NM across. 52 S. 3 Act Concerning the Territorial Waters of Sweden, 3 June 1966, Royal Notice No. 375. 53 S. 5 and 5 (a) Act on the Delimitation of the Territorial Waters of Finland, 18 August 1956; Decree No. 463; cf. William Reisman/Gayl S. Westerman, Straight Baselines in Maritime Boundary Delimitation (1992), 109–111. 54 Cf. US Department of State, Continental Shelf Boundary: Finland – Sweden, Limits in the Seas No. 71 (1976), 5; Agreement Between Finland and Sweden Concerning the Delimitation of the Continental Shelf in the Gulf of Bothnia, The Aland Sea and the Northernmost Part of the Baltic Sea, 29 September 1972, available at http://www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/SWE-FIN1972CS.PDF; also see Martti Koskenniemi/Marja Lehto, Finland and the Law of the Sea, in: Tullio Treves/Laura Pineschi (eds.), The Law of the Sea: The European Union and its Member States (1997), 127, 131. 55 Art. 2 (i) Aaland Convention. 56 Marie Jacobsson, Sweden and the Law of the Sea, in: Treves/Pineschi (note 54), 495, 500–501. 57 Ibid., 500. 58 For a more drastic view, see Hugo Tiberg, The Practice and Value of Compromise in Ocean Boundary Law: The Experience of Sweden, in: David D. Caron/Harry N. Scheiber (eds.), Bringing New Law to Ocean Waters (2004), 419, 422. 59 Passage through the Great Belt (note 35), para. 739.

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Article 36 High seas routes or routes through exclusive economic zones through straits used for international navigation This Part does not apply to a strait used for international navigation if there exists through the strait a route through the high seas or through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics; in such routes, the other relevant Parts of this Convention, including the provisions regarding the freedoms of navigation and overflight, apply. Bibliography: Bing Bing Jia, The Regime of Straits in International Law (1998); Martti Koskenniemi/Marja Lehto, Finland and the Law of the Sea, in: Tullio Treves/Laura Pineschi (eds.), The Law of the Sea: The European Union and its Member States (1997), 127–150; Satya N. Nandan/David H. Anderson, Straits Used for International Navigation: A Commentary on Part III of the United Nations Convention on the Law of the Sea, BYIL 60 (1989), 159–204; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Choon-Ho Park, The Korea Strait, in: Jon M. Van Dyke/Lewis M. Alexander/Joseph R. Morgan (eds.), International Navigation: Rocks and Shoals Ahead? (1988), 173; Jon M. Van Dyck, The Aegean Disputes in International Law, ODIL 36 (2005), 63–117 Documents: IMO, Ships’ Routeing (2010); US Department of the Navy, The Commander’s Handbook on the Law of Naval Operations (2007); US Department of State, Straight Baseline and Territorial Sea Claims: Japan, Limits in the Seas No. 120 (1998) Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. One Type of Strait as Excluded from Part III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. The Regime of Passage Applicable in this Type of Strait. . . . . . . . . . . . . . . . . . . . . . . .

1 3 4 4 7

I. Purpose and Function Art. 36 came into existence during the negotiations at the UNCLOS III Conference. Its inclusion in the UNCLOS reflects the understanding among the negotiating States with regard to the scope of Part III, that international straits are not equivalent to the exclusive economic zone (EEZ) or high seas in terms of navigation, and that for even a State bordering a strait, such as the former Yugoslavia, freedoms of navigation and overflight over the high seas must not be affected by a potential EEZ.1 The right of transit passage, for all its potency in favour of foreign ships and aircraft within a strait overlapped by territorial waters, was not, and is still not, regarded as synonymous to the freedom of navigation and overflight that is generally recognized within the EEZ or on the high seas.2 2 It goes without saying that, for Art. 36 to be applicable, the prior condition must be fulfilled that through a strait a route or corridor exists in the high seas or the EEZ that provides similar navigational and hydrographical convenience to ships in passage. Where the route referred to in Art. 36 is formed even partly by territorial sea or internal waters, Art. 36 gives way to the regime of transit passage or innocent passage. 1

1 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 312 (MN 36.5). 2 Bing Bing Jia, The Regime of Straits in International Law (1998), 134–145; US Department of the Navy, The Commander’s Handbook on the Law of Naval Operations (2007), S. 2.5.3.

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II. Historical Background Art. 36 was developed at UNCLOS III following the UK proposal of 1974, which excluded the 3 application of the right of transit passage in waters within a strait that constituted part of the high seas.3 One basic feature of straits falling under this article has been unchanged ever since, namely, the straits being those through which there exists a high seas route in comparable conditions to other parts of the strait. This feature underwent only drafting changes during the Conference to clarify the nature of the high seas route. In 1975, the Private Group, in its Consensus Text, used the phrase ‘of similar convenience’ for this purpose.4 When the Informal Single Negotiating Text came out on 7 May 1975,5 two new elements could be identified in the draft of Art. 36. The first was the exclusion of Part III, as distinct from the right of transit passage alone, from such high seas routes, and the second was that the routes could lie within the EEZ.6 The former drafting change made good sense, in that there would be no reason otherwise, simply due to inelegant drafting in the course of intensive negotiations over a wide range of topics, to impose the regime of non-suspendable innocent passage on Art. 36-type straits, which contain high sea or EEZ routes whose legal status requires the application of the freedoms appropriate to those waters. It would run counter to the customary law relating to the high seas freedoms, which have been of fundamental importance to the modern law of the sea. In the Revised Single Negotiating Text ‘similar convenience’ was further qualified by the added phrase ‘with respect to navigational and hydrographical characteristics’. 7 The article took its final shape in 1982, when the Yugoslav proposal to explicitly refer, in the context of Art. 36, to the applicability of Part V and Part VII was adopted, which were later revised to ‘other relevant Parts’.8

III. Elements 1. One Type of Strait as Excluded from Part III One type of strait is excluded from Part III, as opposed to being excluded from the regime 4 of transit passage under Section 2 of this Part. It is noted that this article lies outside both Section 2 of Part III, which applies to the category of straits between parts of the high seas or EEZ, and Section 3 of Part III that concerns two particular types of strait. Yet, it still applies to ‘straits used for international navigation’, which supports the view expressed elsewhere in this commentary that the use of straits for international navigation may turn all geographical straits into international straits.9 But straits excluded by Art. 36 do not as such require a special regime to be agreed for them, unlike those straits that are covered by Part III. The excluded straits remain juridical straits, because either EEZ or high seas are still legal notions giving rise to different legal regimes. There is obviously a question lingering. If Art. 36-type straits are not relevant to the regimes of straits prescribed by Part III, they are effectively part 3 Second Committee UNCLOS III, United Kingdom: Draft Articles on the Territorial Sea and Straits, UN Doc. A/CONF.62/C.2/L.3 (1974), OR III, 183, 186. 4 UNCLOS III, Consensus Text of Private Group on Straits, 18 April 1975 (1975, mimeo.), reproduced in: Renate Platzo¨der (ed.), Third United Nations Conference on the Law of the Sea: Documents of the Geneva Session 1975 (1975), 204. 5 UNCLOS III, Informal Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/PART II (1975), OR IV, 152. 6 Satya N. Nandan/David H. Anderson, Straits Used for International Navigation: A Commentary on Part III of the United Nations Convention on the Law of the Sea, BYIL 60 (1989), 159, 176–177. 7 UNCLOS III, Revised Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/REV.1/PART II (1976), OR V, 151, 159. 8 Nordquist/Nandan/Rosenne (note 1), 312–313, 315 (MN 36.5–36.7(d)). 9 See Jia on Art. 37 MN 10–13.

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of the EEZ or high seas. Should they not then be disqualified as ‘straits used for international navigation’? They merely provide routes used for international navigation, as other routes of shipping that span the oceans, including the EEZ. 5 In practice, the utility of Art. 36 is clear. For ease of use, several States bordering straits restrain their claims for the territorial sea to a narrower width than 12 NM. Thus, Japan and the Republic of Korea have each claimed a 3 NM territorial sea within the Korea Strait. 10 In fact, Japan has since 1977 adhered to this limit in five international straits adjacent to its coasts: Korea or Tsushima Strait,11 Tsugaru Strait, Soya or La Perouse Strait, and Osumi Strait.12 The reason for this continuing practice is said to lie in Japan’s dislike for the regime of transit passage as far as those five straits are concerned, since by preserving areas of territorial sea in them, Japan as the coastal State may resort to the rules regulating the territorial sea to control the waters abutting its coasts.13 The attitude of Japan with regard to the treatment of those straits in the course of ratification of the UNCLOS in 1996 seems to support the preceding view.14 While, at first sight, to substitute the regime of the high seas for that of transit passage on this basis may not be that convincing, it makes sense if a closer look is taken at the way in which straight baselines are drawn in those waters.15 They are the result of a calculated exercise in marking out areas which are considered to fall under the sovereignty and jurisdiction of Japan. Thus, the width of the high sea corridors left in those straits vary from 7 to 10 NM, with the one in the Soya Strait still uncertain due to the fact that it is bordered by both Japan and Russia.16 6 It may be noted that at some point during the Conference there was the suggestion that transit passage should apply to straits wider than 6 NM, i. e. the combined width of certain coastal States’ territorial waters.17 The exclusion of straits narrower than 6 NM was not, however, accepted by the negotiating States. The rules adopted for the UNCLOS may well have to do with the action by certain coastal States in restraining their claims to a wider territorial sea.18

2. The Regime of Passage Applicable in this Type of Strait 7

Art. 36 is specific as to two parts of the UNCLOS that are applicable to straits excluded from Part III: the regimes of the EEZ and of the high seas. It may be wondered whether this regime of passage prevails over a reporting system established in such waters, as in the case of the International Convention for the Safety of Life at Sea (SOLAS 1974)19-based reporting regimes. It is not uncommon to see international straits being sectored by traffic separation schemes crosswise, and such measures for the sake of maritime safety also exist at the approaches to such straits.20 While straits under Art. 36 are generally wider than 24 NM throughout, they are not as wide as the open sea. The local concern with pollution and other hazards may remain in such straits. Considering the term of Reg. 11 (9), Ch. V SOLAS 10

Jon M. Van Dyke, The Aegean Disputes in International Law, ODIL 36 (2005), 63, 93. Choon-Ho Park, The Korea Strait, in: Jon M. Van Dyke/Lewis M. Alexander/Joseph R. Morgan (eds.), International Navigation: Rocks and Shoals Ahead? (1988), 173–176. 12 Jia (note 2), 182; also see US Department of State, Straight Baseline and Territorial Sea Claims: Japan, Limits in the Sea No. 120 (1998), 13–15. 13 Ibid., 11. 14 Jia (note 2), 182–183. 15 US Department of State (note 12), 33 et seq. (Navigational Maps 1–4). 16 Ibid., 14–15. 17 Second Committee UNCLOS III, Denmark and Finland: Amendment to Document A/CONF.62/C.2/L.3, UN Doc. A/CONF.62/C.2/L.15 (1974), OR III, 191 (Article 1 (3)). 18 It is recalled that Finland and Estonia have pursued a similar approach to that of Japan and the Republic of Korea in regard to the Gulf of Finland, preserving a high-sea corridor 6 NM wide along the median line through the Gulf, see Martti Koskenniemi/Marja Lehto, Finland and the Law of the Sea, in: Tullio Treves/Laura Pineschi (eds.), The Law of the Sea: The European Union and its Member States (1997), 127, 131. 19 International Convention for the Safety of Life at Sea 1974, as amended (SOLAS 1974). 20 Cf. IMO, Ships’ Routeing (2010), VII/3-1 and VII/3-7 (Puget Sound and its Approaches). 11

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197421, it may be right to say that the high seas regime prevails over the SOLAS-based reporting system established by the coastal State.

Section 2 Transit passage Article 37 Scope of this section 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. Bibliography: R. Douglas Brubaker, The Russian Arctic Straits (2005); Bing Bing Jia, The Regime of Straits in International Law (1998); Anatolii L. Kolodkin/Vasilii N. Gutsuliak/Iulia V. Bobrova, The World Ocean: International Legal Regime (translated by William Butler, 2010); James Kraska, The Law of the Sea Convention and the Northwest Passage, IJMCL 22 (2007), 257–282; Marian Nash (Leich) (ed.), Cumulative Digest of United States Practice in International Law 1981–1988, Book II (1994); Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Donat Pharand, The Arctic Waters and the Northwest Passage: A Final Revisit, ODIL 38 (2007), 3–69; Donat Pharand/Leonard H. Legault, The Northwest Passage: Arctic Straits (1984); George P. Politakis, The Aegean Dispute in the 1990s: Naval Aspects of the New Law of the Sea Convention, in: Theodore C. Kariotis (ed.), Greece and the Law of the Sea (1997), 292–323 Documents: Canada Ministry of Foreign Affairs, Our Sovereignty in the Arctic: A Priority for the Government of Canada, No. 2009/14 (2009); Turkey Ministry of Foreign Affairs, The Outstanding Aegean Issues, available at: http://www.mfa.gov.tr/maritime-issues- - -aegean-sea- - -the-outstanding-aegean-issues.en.mfa; UN DOALOS, Straits Used for International Navigation: Legislative History of Part III of the United Nations Convention on the Law of the Sea, vol. I (1992); US Department of the Navy, The Commander’s Handbook on the Law of Naval Operations (2007); US Department of State, Territorial Regimes and Related Issues, Digest of United States Practice in International Law (2006), 805–851; US Senate, Report Together With Minority Views on the Convention on the Law of the Sea, 19 December 2007 Cases: ICJ, The Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v. Albania), Merits, Judgment of 9 April 1949, ICJ Reports (1949), 4; ICJ, Fisheries Case (United Kingdom v. Norway), Judgment of 18 December 1951, ICJ Reports (1951), 116 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Straits between Parts of the High Seas or EEZ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Use for International Navigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 6 6 10

I. Purpose and Function This is the first article in Section 2 of Part III, providing for the regime of transit passage. 1 The regime applies to a specific type of strait only. While the UNCLOS does not contain a definition of international straits, there were some efforts in that direction, 1 and Art. 37 is what 21 Reg. 11 (9), Ch. V SOLAS 1974 states: ‘Nothing in this regulation or its associated guidelines and criteria shall prejudice the rights and duties of Governments under international law or the legal regimes of straits used for international navigation and archipelagic sea lanes.’ 1 For instance, Second Committee UNCLOS III, United Kingdom: Draft Articles on the Territorial Sea and Straits, UN Doc. A/CONF.62/C.2/L.3 (1974), OR III, 183; Second Committee UNCLOS III, Canada: Draft Article on a Definition of an International Strait, UN Doc. A/CONF.62/C.2/L.83 (1974), OR III, 241.

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came from those efforts. It stands as a criterion for straits that are open to the right of transit passage laid down in Section 2, Part III. In a way, it loyally follows what the International Court of Justice (ICJ) stated in 1949 to be the decisive criterion for international straits in which innocent passage may not be suspended.2 As will be shown below, the legal status of the water areas connected by a strait seems to have been the determining factor in prompting the US and the former USSR in advocating the notion of a right of free transit within straits to be enclosed by a 12 NM territorial sea. 2 While straits’ geographical relations may be decisive in giving them the status of international straits, there is no denying that they also have to be used for international navigation. The use of the straits is a necessary corollary to their geographical situation. A better view is therefore that the geographical side of this consideration is decisive to open straits to a particular regime of navigation, whereas the functional aspect does not of itself necessarily justify the establishment of a particular regime for them. A legal regime is always wrought by synthesizing multiple factors of fact, interests, and law. That is perhaps the sense best suited to a sound understanding of the ICJ’s criterion for international straits.

II. Historical Background In the contemporary law of the sea, the criterion that an international strait must be one that links parts of the high seas was established in the Corfu Channel Case of 1949. 3 But it had theretofore been well known in State practice and literature, 4 and the ICJ’s judgment merely reflected that general understanding. The significance of that judgment, however, was felt immediately afterwards with the adoption of Art. 16 (4) of the Convention on the Territorial Sea and the Contiguous Zone of 1958 (CTSCZ), and subsequently, with the emergence of the notion of transit passage in the late 1960s. 4 In 1971, the US submitted an important proposal to the UN Sea-Bed Committee. 5 In its proposal, the US envisaged the right of transit passage to be synonymous with the freedom of the high seas for navigation and overflight. In addition, that freedom was to be exercised in straits between two parts of the high seas or between one part of the high seas and the territorial sea of a foreign State. It was a drastic change to the existing regime of innocent passage recognised at the time by the CTSCZ. The US view was supported by the former USSR which, however, dropped the category of straits between a part of the high seas and the territorial sea of a foreign State from the discourse. 6 The restriction of straits open to transit passage to those between parts of the high seas was also supported by the UK at that time. 7 5 It therefore came as no surprise that the UK reflected its understanding of the geographical scope of the right of transit passage accordingly in its proposal to the second session of UNCLOS III.8 In it, relevant straits were those linking two parts of the high seas. This feature remained when the Private Group on Straits circulated its Consensus Text in April 1975. 9 3

2 ICJ, The Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v. Albania), Judgment of 9 April 1949, ICJ Reports (1949), 4, 28. 3 Ibid. 4 Bing Bing Jia, The Regime of Straits in International Law (1998), 23 (footnote 190), 24. 5 Sea-Bed Committee, Draft Articles on the Breadth of the Territorial Sea, Straits and Fisheries Submitted by the United States, UN Doc. A/AC.138/SC.II/L.4 (1971), 2 (Article II (1)). 6 Sea-Bed Committee, USSR: Draft Articles on Straits Used for International Navigation, UN Doc. A/AC.138/ SC.II/L.7 (1972), 1. 7 UN DOALOS, Straits Used for International Navigation: Legislative History of Part III of the United Nations Convention on the Law of the Sea, vol. I (1992), 50 (referring to Sea-Bed Committee, Summary Record of the Twenty-Seventh Meeting, UN Doc. A/AC.138/SC.II/SR.24-32 (1972), 25, 30). 8 UK Draft Articles (note 1), 185 (Ch. 3). 9 UNCLOS III, Consensus Text of Private Group on Straits, 18 April 1975 (1975, mimeo.), reproduced in: Renate Platzo¨der (ed.), Third United Nations Conference on the Law of the Sea: Documents of the Geneva Session 1975 (1975), 204.

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Art. 37

However, the Informal Single Negotiation Text polished it up with the addition of a reference to the new concept of the exclusive economic zone (EEZ).10 The formulation was to remain largely unchanged, bar minor drafting amendments, through to its finalization in the UNCLOS.11

III. Elements 1. Straits between Parts of the High Seas or EEZ The geographical fact of straits linking two otherwise separated bodies of larger sea areas is 6 decisive in giving them legal significance in terms of navigational rights for foreign ships and of security concerns of the coastal States. Where straits link waters beyond coastal sovereignty, there is little problem for the States concerned to agree on a passage regime that applies to foreign shipping and air traffic. In those straits, rights of navigation and overflight may be easy to accept by all parties. However, with the extension of the width of the territorial sea to 12 NM as a right of customary law and under Art. 3, what formerly appeared to be a non-existent problem has become a real one, in that straits may nowadays connect largely reduced high seas or even pockets of the high seas, ringed by territorial waters of States in the area. The choice of legal regimes in that situation becomes a tough task, considering that geographical proximity could well pit neighbouring countries against each other. No further evidence is needed for proving this alarming prospect than a glance at the Aegean Sea, where any potential claim to a 12 NM territorial sea by Greece could set off a confrontation with Turkey. 12 That situation alone may counsel further examination of the terms of Art. 37. The basic conception of a strait linking parts of the high seas may beg another question as to 7 whether the strait has to link the parts immediately or whether it may suffice for the purposes of Part III, to simply link the parts in a general direction, leapfrogging foreign territorial sea belts in between. Again this question may be illustrated by the case of the Aegean Sea mentioned above. Even now, passage or overflight in the Aegean to reach the Black Sea may have to negotiate Greek territorial waters and the superjacent Greek airspace. If Greece extended its territorial sea to 12 NM, the high seas area of the whole region could be reduced significantly. 13 In those circumstances, should Art. 37 remain in force for the straits concerned, could Art. 45 have a role to play, if passage were only for the purposes to enter local ports on the Cyclades Islands, the East Aegean islands, or the Turkish Anatolian coast? It is submitted that the condition of a strait linking two larger areas of sea means, normally, that the waterway connects those two areas directly and immediately. The regime of straits deals with each international strait, but not with a route formed by several such straits, except where the existence of the route is determined by usage which is, in turn, determined by geography. A case in point is the route formed by the Straits of Malacca and Singapore, and for shipping plying between Japan and the Middle East, the route may extend beyond those two straits to include other expanses of the oceans. In that sense, a route is often one that is followed by shipping that traverses several geographical areas, such as straits, archipelagic sea lanes, routes lying within EEZs or the high seas, etc. But otherwise, straits are known as separate geographical entities in most situations. 10 UNCLOS III, Informal Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/PART II (1975), OR IV, 152 (Article 37), referring to UNCLOS III, Revised Single Negotiating Text (Part II), UN Doc. A/CONF.62/ WP.8/REV.1/PART II (1976), OR V, 151. But the Private Group on Straits had anticipated this polishing in its Consensus Text: ibid., 204 (footnote to Article 1 (1)(b)). 11 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 319–320 (MN 37.6). 12 George P. Politakis, The Aegean Dispute in the 1990s: Naval Aspects of the New Law of the Sea Convention, in: Theodore C. Kariotis (ed.), Greece and the Law of the Sea (1997), 292, 313 (a map is attached, showing hypothetically the consequence of applying a 12 NM territorial sea by Greece to the Aegean Sea). 13 Turkey Ministry of Foreign Affairs, The Outstanding Aegean Issues, available at: http://www.mfa.gov.tr/ maritime-issues - aegean-sea - the-outstanding-aegean-issues.en.mfa.

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The scenario of ‘composite’ straits has, to a large extent, become suitably covered under the aegis of the archipelagic regime, since the adoption of Part IV. But there are situations in which Part IV does not apply, including the Aegean Sea, even though the Greek islands in question are approximate in many respects to a geographical archipelago. In case the notion of composite straits is invoked, it should be proved by its advocate that it is a composite strait in question, not a sea lane in the sense of Part IV. 8 The preceding view may assume a wider significance when applied to such a feature as the Northwest Passage in the Arctic or the Indreleia in northwest Norway. Where geography is altered through human use, there may occur a ‘composite strait’ formed by separate geographical straits. In such waters, human use may turn the group of channels into one geographical strait, and such use manifests itself in the provision of navigational aids in the waters.14 It is recognized that the ICJ has taken a different view in this respect, that the Indreleia route was not a strait at all, but a navigational route formed by means of artificial aids to navigation provided by Norway.15 However, the Court’s view was specifically tied to the situation of the Indreleia route. It did not foreclose the possibility that other routes of similar outlook, with more navigability and with little help from the coastal State for navigational aids, may exist in reality.16 The Northwest Passage, consisting of seven routes, each of which is composed of several geographical channels or bays,17 is open to passage by foreign ships only with the help of icebreakers and pilotage, among other forms of assistance.18 Leaving aside the fact that up to this point foreign transit has been made through the Passage with Canada’s consent,19 it may be wondered whether nondependence on local icebreaking and pilotage, as in the case of the Polar Sea, will affect the assessment conducted here. Foreign ships may, in future, rely more on their own icebreaking capacity or the ever warmer climate in the Arctic to navigate the Passage.20 The necessity of relying on Canadian assistance by commercial ships may soon become unnecessary. While the fact remains that each of the separate channels forming Route 1 and Route 2 in the Northwest Passage opens to larger areas of sea than 24 NM in width,21 foreign shipping may encounter a legal difficulty in the form of the existing Canadian straight baselines that envelope the Canadian Arctic Archipelago, together with the Northwest Passage. The US has not recognized the baselines.22 However, if any of the routes of the Northwest Passage can be navigated in the changed navigational and hydrographical conditions of the not too distant future,23 the routes linking two parts of the high seas or Canadian EEZ could be a decisive factor in turning it into an Art. 37-type international strait.24 The US position has thus been put forward: ‘The Northwest Passage is a strait used for international navigation. Therein, all ships and aircraft enjoy the right of transit passage, in accordance with international law as reflected in the 1982 Law of the Sea Convention.’25 14

Jia (note 4), 28–32. ICJ, Fisheries Case (United Kingdom v. Norway), Judgment of 18 December 1951, ICJ Reports (1951), 116, 132. 16 See Jia on Art. 43 MN 4–8. 17 Donat Pharand, The Arctic Waters and the Northwest Passage: A Final Revisit, ODIL 38 (2007), 3, 29–30. 18 Donat Pharand/Leonard H. Legault, The Northwest Passage: Arctic Straits (1984), 113. 19 Pharand (note 17), 30–33, 37–42. 20 Canada for one has thought this over, as its foreign minister stated in 2009 that ‘some experts, for example, predicted recently that the entire Arctic could be ice free in summer by 2013; others say this will not happen until 2050. Our own Canadian Ice Service, however, believes that the Northwest Passage will likely not be a reliable commercial shipping route for decades owing to extreme ice variability’: Canada Minister of Foreign Affairs, Our Sovereignty in the Arctic: A Priority for the Government of Canada, 27 March 2009, No. 2009/14 (per Minister of Foreign Affairs Lawrence Cannon). 21 Pharand (note 17), 6. 22 Marian Nash (Leich), Cumulative Digest of United States Practice in International Law 1981–1988, Book II (1994), 1783–1785, showing that the US expressly regarded the baselines as inconsistent with the law of the sea. 23 James Kraska, The Law of the Sea Convention and the Northwest Passage, IJMCL 22 (2007), 257, 258. 24 The US has asserted this to be the case since the adoption of the UNCLOS, see Nash (Leich) (note 22), 2043. 25 US Department of State, Territorial Regimes and Related Issues, Digest of United States Practice in International Law 2006, 815: reporting on a letter from the US Ambassador to Canada’s Department of Foreign Affairs and International Trade in October 2006. 15

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37

This situation will remain notwithstanding the fact that at least some stages of passage 9 through the Northwest Passage by any of the known routes must take place in Canadian territorial sea.26 Be that as it may, the routes have been used by foreign shipping with prior consent of Canada, and they may allow designation on the basis of an agreement between Canada and user States in the future. In any case, the question surrounding passage through the Northwest Passage is different from the question of designation of routes in the Aegean Sea, in that the existing routes in the Northwest Passage rely on Canadian assistance for their use by foreign commercial shipping, but that passage in the Aegean Sea has so far not been known to rely on Greek aids. To claim the right to establish sea routes in this latter case may therefore encounter more resistance from other States concerned.

2. Use for International Navigation The criterion of use is integral to the concept of international strait. But two questions 10 remain. First, the degree of use varies from strait to strait, giving rise to queries as to what is the state of customary law on the point, if the UNCLOS is silent. Secondly, there is no requirement that the use of a strait cannot include that of passage for the purpose of reaching a local port beyond or within the strait, as the history surrounding the adoption of such a provision as Art. 45 (1)(b) can prove. But what is the role of a port in this context, access to which is secured by bilateral agreements between the coastal State and the user State? The first question is concerned with the scale of use that may lead to the recognition that 11 an international regime rather than a national statute is to be applied to a certain strait. Not to rehash what has been said about this aspect,27 it is emphasized here that the use of a strait for international navigation is important as a criterion for a legal notion, but that when determining the legal status of a particular strait, this criterion of use is not sufficient for that purpose. Otherwise, the criterion of use would become equally decisive to the geographical criterion. Considering the existence of straits used for international navigation but by reason of their containing a high sea or EEZ corridor in the middle and throughout their length, or by virtue of their being regarded by the coastal States as such, i. e. used for international navigation, this caution in relation to importance to be attached to the criterion of use is entirely justified. Although the use of a strait remains a question for determining its legal status in practice.28 The second question arises where passage through a strait is based on treaties of 12 commerce and friendship or the like, where prior consent to reach a port beyond the strait has been granted once-for-all by the port State to the other parties to such treaties. Whether this port State sits on the strait that links the waters on the coast of which its ports are situated is not decisive for the determination of its state of being used for international navigation. Even if the strait is used for access to ports outside of it, it is still one used for international navigation. This interpretation of the phrase ‘use for international navigation’ may show that use by international traffic is not perhaps as decisive as the fact that the strait, serving this traffic, links two parts of larger water bodies in the navigation of which 26 Pharand/Legault (note 18), 100. It should also be borne in mind that the dispute has been long-standing involving the Canadian legislation that seeks to control all shipping in the Canadian arctic waters: the Arctic Waters Pollution Prevention Act (Canada), S.C. 1970, c. 47, and the Act to Amend the Territorial Sea and Fishing Zones Act (Canada), S.C. 1970, c. 68; US Department of State, US Statement on Canada’s Proposed Legislation, ILM 9 (1970), 605–606: the US challenging the Canadian legislation acts; and the Oceans Act (Canada), S.C. 1996, c. 31, last amended 5 October 2005, available at: http://laws-lois.justice.gc.ca/eng/acts/O-2.4/. 27 Jia (note 4), Ch. 3. 28 R. Douglas Brubaker, The Russian Arctic Straits (2005), 148–151. This has not prevented the US from claiming, inter alia, the waters of the straits beyond the lawfully claimed territorial seas of the littoral countries as international, open to navigation and overflight pursuant to, presumably, the transit regime reflected in Part III UNCLOS: US Department of the Navy, The Commander’s Handbook on the Law of Naval Operations (2007), S. 2.6.5.1.

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the ships in traffic through the strait find their ultimate aims to come to this part of the sea. The legal status of the water bodies connected by the strait seems to be far more important in deciding the regime of passage that is applicable. Supposing the preceding argument is accepted, it is worth remembering, however, that international use of the strait necessitated by virtue of even bilateral treaties with the port State in this scenario is very much grounded in a legal right of passage. That right may well be granted by the port State to other States in similar treaties, rendering the port an international one in terms of commerce. That in turn brings more international traffic to the strait concerned. Reference is made to the case of the Kerchensk Strait between Ukraine and Russia, through which the annual traffic figure stands at about 8,000 to 8,500 ships, including foreign-flagged ships, most of which are headed for ports on the coast of the Sea of Azov. 29 However, it must be stressed that the legal right of passage referred to above is chiefly one granted by customary law or multilateral treaties, thus of a general nature and scope, and that its being granted by bilateral agreements is not decisive for determining whether it is subject to the legal regime of international straits that is being discussed in relation to Part III. In other words, the fact that certain straits provide access to important ports, in itself, does not mean that these straits necessarily attract the legal regime of international straits. Since there are necessarily treaties of commerce and friendship involved in respect of these straits, they may be international straits in a broad, functional sense, but not those that are regulated by the legal regime of international straits in the sense of the UNCLOS. In this light, ports in straits or beyond may enhance the importance of the straits, but access to them on the basis of bilateral treaties can only be counted, at most, as supplementary evidence of the intensity of their use for international navigation. This may explain why acknowledgement of the existence of straits supplying access to the territorial sea of a foreign State is the farthest extent to which the law of the sea is prepared to go in regulating this particular type of strait.30 Again, the general right of navigation which applies in the bodies of water beyond the straits determines that the straits must be subjected to an international regime that complements that general right. It may even be arguable that this complementary right of passage through straits sustains the effectiveness of the general right. 13 As the preponderant trend of State practice shows, potential use, per se, is not sufficient to turn a geographical strait into a juridical one.31 Conversely, actual use of straits for international navigation, on a certain legal basis, may factually turn all geographical straits into international waterways, but this is probably a description of a reality, without necessarily involving legal implications. A strait that meets to requirements of Art. 36 can be a strait used for international navigation, but one that is irrelevant to the rest of Part III. The use aspect itself does not necessarily mean the internationalization of a strait to make it a focus of international interest. Whether internationalization arises as an issue depends on actual circumstances concerning the legal right vel non of passage through a particular strait.

29 Cf. Anatolii L. Kolodkin/Vasilii N. Gutsuliak/Iulia V. Bobrova, The World Ocean: International Legal Regime (2010), 188. The Russian port of Taganrog, on the Sea of Azov, serves regular visits by merchant ships from Greece, Turkey, Italy, Cyprus, Israel, Spain, Egypt, and other Mediterranean countries, further information about the City of Taganrog are available at: http://www.taganrogcity.com/seaport.html. 30 See further Jia on Art. 45 MN 10–12. 31 Jia (note 4), 50. That practice is not uniform, however, as, for instance, both the US and Canada recognise the potential of the Northwest Passage for commercial passage: see further Jia on Art. 35 MN 8–9 and Jia on Art. 43 MN 4–8. But the US Senate’s Foreign Relations Committee, in recommending the UNCLOS for the Senate’s advice and consent in December 2007, added a declaration that the term ‘used for international navigation’ includes all straits capable of being used for international navigation: US Senate, Report Together With Minority Views on the Convention on the Law of the Sea, 19 December 2007, available at: http:// www.gc.noaa.gov/documents/UNCLOS-Sen-Exec-Rpt-110-9.pdf.

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Right of transit passage

Article 38 Right of transit passage 1. In straits referred to in article 37, all ships and aircraft enjoy the right of transit passage, which shall not be impeded; except that, if the strait is formed by an island of a State bordering the strait and its mainland, transit passage shall not apply if there exists seaward of the island a route through the high seas or through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics. 2. Transit passage means the exercise in accordance with this Part of the freedom of navigation and overflight 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. However, 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. 3. Any activity which is not an exercise of the right of transit passage through a strait remains subject to the other applicable provisions of this Convention. Bibliography: Ram P. Anand, Navigation through Territorial Sea and Straits-Revisited, Indian JIL 36 (1996), 13–38; Hugo Caminos, Categories of International Straits Excluded From the Transit Passage Regime Under Part III of the United Nations Convention on the Law of the Sea, in: Tafsir Malick Ndiaye/Ru¨diger Wolfrum (eds.), Law of the Sea, Environmental Law and Settlement of Disputes (2007), 583–592; Robin R. Churchill/ Alan V. Lowe, The Law of the Sea (3rd edn. 1999); Richard J. Grunawalt, United States Policy on International Straits, ODIL 18 (1987), 445–458; Ann Hollick, U.S. Foreign Policy and the Law of the Sea (1981); Bing Bing Jia, The Regime of Straits in International Law (1998); Syme´on Karagiannis, Les de´troits internationaux reliant la mer territoriale d’un E´tat a` la haute mer ou a` la zone e´conomique exclusive d’un autre E´tat, AnDrMer XII (2007), 141–226; Stuart B. Kaye, The Torres Strait (1997); Katharina Kummer, The International Regulation of Transboundary Traffic in Hazardous Wastes: The 1989 Basel Convention, ICLQ 41 (1992), 530–562; Ana G. Lo´pez Martı´n, International Straits (2010); Argiro L. Morgan, The New Law of the Sea: Rethinking the Implications for Sovereign Jurisdiction and Freedom of Action, ODIL 27 (1996), 5–29; Satya N. Nandan/ David H. Anderson, Straits Used for International Navigation: A Commentary on Part III of the United Nations Convention on the Law of the Sea, BYIL 60 (1989), 159–204; Myron H. Nordquist/Shabtai Rosenne/ Louis B. Sohn (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. V (1989); Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Michael Reisman, The Regime of Straits and National Security: An Appraisal of International Law Making, AJIL 74 (1980), 48–76; Emmanuel Roucounas, Greece and the Law of the Sea, in: Tullio Treves/Laura Pineschi (eds.), The Law of the Sea: The European Union and its Member States (1997), 225–259; Tullio Scovazzi/Irini Papanicolopulu/Giampiero Francalanci, Boundary Report 8–21 (Greece-Albania), in: David Colson/Robert Smith (eds.), International Maritime Boundaries, vol. VI (2011), 4462–4478; Anastasia Strati, The Ratification by Greece of the UN Convention on the Law of the Sea, LJIL 9 (1996), 99–121; Anastasia Strati, Greece and the Law of the Sea: A Greek Perspective, in: Aldo Chircop/Andre´ Gerolymatos/John O. Iatrides (eds.), The Aegean Sea after the Cold War (2000), 89–102; Jon M. Van Dyck, The Aegean Disputes in International Law, ODIL 36 (2005), 63–117; Jose´ A. de Yturriaga, Straits Used for International Navigation: A Spanish Perspective (1991) Documents: US Senate, Report Together With Minority Views on the Convention on the Law of the Sea (2007); UN DOALOS, Straits Used for International Navigation: Legislative History of Part III of the United Nations Convention on the Law of the Sea, vol. I (1992); UN DOALOS, Straits Used for International Navigation: Legislative History of Part III of the United Nations Convention on the Law of the Sea, vol. II (1992); US Department of State, The Department of State Bulletin 62 (April 1970); US Department of State, Use of Force, Arms Control and Disarmament, and Nonproliferation, Digest of United States Practice in International Law (2008) Cases: ICJ, The Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v. Albania), Merits, Judgment of 9 April 1949, ICJ Reports (1949), 4

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1–3

Part III. Straits used for international navigation Contents

I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. One Type of Strait Excluded from the Regime of Transit Passage . . . . . . . . . . . . . . 2. The Nature of the Right of Transit Passage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Transit Passage Includes Entry to or Exit from Local Ports. . . . . . . . . . . . . . . . . . . . . 4. The Saving Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 4 10 10 16 20 21

I. Purpose and Function This article sets forth the innovative right of transit passage, which includes not only passage by ships, but also overflight by aircraft. It establishes a regime of passage that had not been known to international law prior to the conclusion of the UNCLOS. It is a halfway house between the freedom of navigation and overflight on the high seas and the innocent passage through the territorial sea. Compared with Art. 16 (4) of the Convention on the Territorial Sea and the Contiguous Zone 1958 (CTSCZ), Art. 38 has advanced as a foundational article to a new legal regime by defining the notion of transit passage. Further, it leaves any activity of non-transit passage to the regulatory powers based in other parts of the UNCLOS, which include, for instance, Art. 233. 1 2 The regime of transit passage has been strongly supported by the United States, even though it has yet to ratify the UNCLOS.2 On many occasions, the right of transit passage has been asserted by US warships, and the US Government has not shied from stating that it regards the right as part of international law.3 But, as will be shown below, the US, when developing this policy in the early 1970s, did not see the right as one of customary law. On the contrary, it saw it as a new right in the law of the sea. It may be important to note that at that time, the US, on insisting on the preservation of existing practices of navigation and overflight in international straits susceptible to the claim for a 12 NM territorial sea, did no more than maintain those practices as based in the freedoms of the high sea which, however, as practice has since proved with the advent of the regime of exclusive economic zone (EEZ), can be curtailed by way of treaty or new customary law.4 3 On the other hand, the question remains as to whether the right of transit passage has come to represent customary law since 1982. Any subsequent practice is important where a treaty is not intended to reflect customary law during its negotiation. The situation in this regard until 1998 has been dealt with elsewhere.5 State practice since 1998 has not progressed more quickly than that of the preceding period in confirming the customary status of the right.6 Some States parties still do not indicate whether their laws reflect customary law or simply the UNCLOS as a treaty, with the latter most likely to be the case. Spain, for instance, promulgated a Royal Decree in 2007 regarding the discharge of pollutants in its waters by foreign ships passing through, and the scope of the decree 1

1

See Becker-Weinberg on Art. 233. But the Senate’s Committee on Foreign Relations recommended that the Senate to give its consent and advised accession by the US to the UNCLOS and ratification of the 1994 Agreement Relating to the Implementation of Part XI on the United Nations Convention on the Law of the Sea: US Senate, Report Together With Minority Views on the Convention on the Law of the Sea (2007), available at: http:// www.gc.noaa.gov/documents/UNCLOS-Sen-Exec-Rpt-110-9.pdf. The report containing the recommendations, however, did not refer to the transit right as customary law, and no question was raised on this point in the report. 3 US Department of State, Use of Force, Arms Control and Disarmament, and Nonproliferation, Digest of United States Practice in International Law (2008), 862–863: reporting on the statement by the Department of Defense and by the US Navy on an incident that took place in the Straits of Hormuz in January 2008. 4 Richard J. Grunawalt, United States Policy on International Straits, ODIL 18 (1987), 445, 458. 5 Bing Bing Jia, The Regime of Straits in International Law (1998), Ch. 8. 6 Ana G. Lo ´ pez Martı´n, International Straits (2010), 192–198. 2

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includes straits subject to the regime of transit passage and under Spanish jurisdiction, without any reference to the UNCLOS in this regard.7

II. Historical Background The idea of transit passage originated in the talks between the US and the former USSR 4 before 1970.8 Although the position as agreed between those two countries did not receive instant recognition in the world, the practice of the US in particular had been geared towards its creation even before the commencement of UNCLOS III.9 The rationale for a right of transit passage was expounded by both the US and the former USSR. It is recalled that, in the oceanpolicy statement of 23 May 1970, reflecting the agreed position with the former USSR as mentioned above, the US President NIXON declared: ‘The United States is currently engaged with other states in an effort to obtain a new law of the sea treaty. This treaty would establish a 12-mile limit for territorial seas and provide for free transit through international straits’.10

Before the UN Sea-Bed Committee, the US expressly stated, in 1971, that: ‘The right to transit should be regarded in law for what it is in fact: an inherent and inseparable adjunct of the freedoms of navigation and overflight on the high seas themselves. […] The new right of free transit would only apply in international straits, using the definition that was adopted at the 1958 Law of the Sea Conference.’11

At the time, therefore, the US regarded the proposed right of transit as something new, in 5 comparison to the existing regime as enshrined in the CTSCZ.12 This was taken note of by other delegations, for instance, Spain.13 In 1972, the former USSR representative explained to the Sea-Bed Committee that the 6 existing regime of innocent passage was established by the CTSCZ for straits that were already in the territorial sea, but that, for other straits whose median line was in the high seas, the extension of the territorial sea to 12 NM by the coastal States must not result in a change in their status as free routes for passage by merchantmen and warships alike, as they had been. 14 He considered that the US proposal, which introduced the idea of a freedom of transit through and over international straits,15 could serve as a basis for an article on straits, but that passage through the straits was not completely comparable to navigation on the high seas. 16 This explanation echoed what had been stated by the UK delegation at the same time. 17 The balance between this freedom of navigation and overflight and the concern of the State bordering the strait with pollution and maritime safety had been noted by the US, the former USSR, and the UK on all those occasions.

7 Spanish Royal Decree 394/2007, Measures Applicable to Ships in Transit which Commit Pollution Offences in Spanish Maritime Waters, BOE No. 81 of 4 April March 2007; Lo´ pez Martı´n (note 6), 168–169. Spain ratified the UNCLOS in 1997. 8 Ann Hollick, U.S. Foreign Policy and the Law of the Sea (1981), 234. 9 Jia (note 5), 130–131. 10 US Department of State, The Department of State Bulletin 62 (April 1970), 737–738. 11 Sea-Bed Committee, Summary Record of the Eighth Meeting, UN Doc. A/AC.138/SC.II/SR.8 (1971), 45, 51. 12 Michael Reisman, The Regime of Straits and National Security: An Appraisal of International Law Making, AJIL 74 (1980), 48, 68. 13 Sea-Bed Committee, Summary Record of the Twenty-Eighth Meeting, UN Doc. A/AC.138/SC.II/SR.28 (1972), 43, 52–53, referring to ‘a new standard of international law’. 14 UN DOALOS, Straits Used for International Navigation: Legislative History of Part III of the United Nations Convention on the Law of the Sea, vol. I (1992), 51. 15 Sea-Bed Committee, United States of America: Draft Articles on the Breadth of the Territorial Sea, Straits and Fisheries, UN Doc. A/AC.138/SC.II/L.4 (1971), 2. 16 UN DOALOS (note 14), 51. 17 Ibid., 50.

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The phrase ‘transit passage’ emerged in Art. 1 of the UK proposal to the second session of UNCLOS III in July 1974.18 Together with the terminology came an article that provided a basis for the development of Art. 38. The UK proposal included the basic features of the right of transit passage in three aspects. First, the right of transit passage meant the freedom of navigation and overflight, which should not be impeded. Second, it would apply in a special type of international strait. Third, it could not be exercised in two types of strait, including that of straits formed by an island and the coast of a State, paralleled by an ‘equally suitable’ high sea route seaward of the island. What may be noted of the UK proposal is that it argued for a right of transit passage on the ground that it corresponded to the ‘best international practice at that time’.19 However, this new right of transit passage came up against strong resistance by a large number of delegations, which preferred to retain the regime of innocent passage. 20 8 When the Private Group on Straits circulated its Consensus Text in April 1975, the article presented incorporated the UK proposal, by reordering the paragraphs, 21 with the addition of a new paragraph 5 concerning any activity that was not an exercise of the right. 22 By the time the Informal Single Negotiating Text (ISNT) was presented to the conference, Art. 38, after some drafting changes, had settled, more or less, into its final form. 23 The island-mainland exception was moved to paragraph 1. 9 Before the Revised Single Negotiating Text was circulated at the Conference in 1976, Spain and Greece, respectively, tried to move for the deletion of all references to overflight from the draft article, but failed to obtain support for the suggestions. 24 Subsequent efforts by Spain, Malaysia, and Morocco, well into 1978, to modify the article were not successful. 25 7

III. Elements 1. One Type of Strait Excluded from the Regime of Transit Passage Curiously, an exclusionary proviso has been included in Art. 38 (1). It has been suggested that by including this proviso, the UNCLOS has omitted a type of strait as exemplified by the Corfu Channel, thus giving rise to serious doubts and discrepancies. 26 Be that as it may, the wording of the provision is clear, in that it is directed at a strait formed by the mainland and an island of the same State. Thus, Kalmar Sound has been mentioned as an example that fits the terms of Art. 38 (1), whereas the Corfu Channel is not relevant to it. 27 The question would, of course, remain of which is the regime for today’s Corfu Channel. 11 It is recalled that, at the time of the important Corfu Channel Case, the fatal explosion involving the British flotilla took place in Albanian territorial waters within the North Corfu Channel.28 The British warships were heading for the northern exit of the strait, having 10

18 Second Committee UNCLOS III, United Kingdom: Draft Articles on the Territorial Sea and Straits, UN Doc. A/CONF.62/C.2/L.3 (1974), OR III, 183, 185. 19 Legislative History, vol. I (note 14), 34. 20 Jia (note 5), 135 (footnote 54); UN DOALOS, Straits Used for International Navigation: Legislative History of Part III of the United Nations Convention on the Law of the Sea, vol. II (1992), 36 (Denmark). 21 The order of the paragraphs in the United Kingdom proposal was altered to that of 3, 1, 2, 4: UK Draft Articles (note 18), 1–4. 22 UNCLOS III, Consensus Text of Private Group on Straits, 18 April 1975 (1975, mimeo.), reproduced in: Renate Platzo¨der (ed.), Third United Nations Conference on the Law of the Sea: Documents of the Geneva Session 1975 (1975), 204. 23 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 326. 24 Ibid., 327 (MN 38.5). 25 Ibid., 327–328 (MN 38.6–38.7). 26 Lo ´ pez Martı´n (note 5), 66–67. 27 Jia (note 5), 142. 28 ICJ, The Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v. Albania), Judgment of 9 April 1949, ICJ Reports (1949), 4, 14.

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earlier left the port of Corfu.29 The northern channel is narrow, between 1 and 6 1/2 NM across.30 In this case, Albania argued that there was an alternative route west of the island of Corfu, which was more direct and part of more open areas of sea.31 However, the International Court of Justice (ICJ) thought otherwise, stating that: ‘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 its being used for international navigation. Nor can it be decisive that this Strait is not a necessary route between two parts of the high seas, but only an alternative passage between the Aegean and the Adriatic Seas.’ 32

What satisfied the ICJ, as far as the usefulness of the strait was concerned, was that it had 12 been used by international traffic. The conclusion of the ICJ was sufficiently clear, admitting of no extended interpretation that might equate a strait like the Corfu Channel with a strait like that of Messina. If straits existed in a geographical situation like that of the Corfu Channel, they would qualify, just like that Channel, as international straits, regardless of whether there are parallel sea routes on the high seas side of islands flanking them. The ‘Messina exception’, 33 as enshrined in Art. 38 (1), has no applicability in the case of the Corfu Channel and the like. 34 It should be added that on 27 April 2009 Greece and Albania concluded the Agreement on 13 the Delineation of the Continental Shelf and the Maritime Zone Between the Republic of Albania and the Hellenic Republic, an agreement delimiting their boundary within, among other areas, the Corfu Channel.35 The agreement declared that the maritime boundary between the two countries ‘shall be determined on the principle of equidistance that is expressed by the median line’.36 Art. 5 of that agreement provided that none of the articles of the agreement ‘shall affect the navigational rights and freedoms, provided for in the’ UNCLOS. It is therefore assumed that transit passage may be exercised in the Corfu Channel. 37 However, for various reasons, the agreement has not entered into force.38 One remaining question that may not be susceptible to an easy answer is what should the 14 solution be to a strait bordered by two States respectively on each of its sides, with one State’s territory represented by an island, and the other by a continental coast. The Greek island of Samos, for instance, lies west to the coast of the Turkish Asia Minor, separated by the Mycale Strait with a width of 1.6 km at the narrowest. It is submitted that the Art. 38 (1) exclusion does not apply to this feature. One thought, in case it presents a question as to the legal regime applicable in it, would be to assess whether it is a strait used for international navigation. If it stays off the normal route of passage in this area, it may not even qualify as an international strait. In that case, innocent passage applies as the strait forms part of territorial waters. On the contrary, if it is used for international navigation, there is a case for the regime of transit 29

Ibid., 12. ICJ, The Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v. Albania), Memorial Submitted by the Government of the United Kingdom of Great Britain and Northern Ireland – Part I of 30 September 1947, para. 5, available at: http://www.icj-cij.org/docket/files/1/1489.pdf. 31 ICJ, The Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v. Albania), CounterMemorial Submitted by the Government of the People’s Republic of Albania of 15 June 1948, para. 6, available at: http://www.icj-cij.org/docket/files/1/1492.pdf. 32 Corfu Channel Case (note 28), 28. 33 Sea-Bed Committee, Italy: Draft Articles on Straits, UN Doc. A/AC.138/SC.II/L.30 and Corr.1 (1973). 34 Emmanuel Roucounas, Greece and the Law of the Sea, in: Tullio Treves/Laura Pineschi (eds.), The Law of the Sea: The European Union and its Member States (1997), 225, 236. 35 As to the agreement see further Tullio Scovazzi/Irini Papanicolopulu/Giampiero Francalanci, Boundary Report 8-21 (Greece-Albania), in: David Colson/Robert Smith (eds.), International Maritime Boundaries, vol. VI (2011), 4462, 4470. 36 Ibid., Preamble of the agreement. 37 Similarly, see Hugo Caminos, Categories of International Straits Excluded from the Transit Passage Regime under Part III of the United Nations Convention on the Law of the Sea, in: Tafsir Malick Ndiaye/Ru¨diger Wolfrum (eds.), Law of the Sea, Environmental Law and Settlement of Disputes (2007), 583, 592. 38 The Albanian Constitutional Court annulled the agreement on 26 January 2010, further information is available at: http://www.dur.ac.uk/ibru/news/boundary_news/?itemno=9534&rehref=%2Fibru%2Fnews%2F&resubj=Boundary+news%20Headlines. 30

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passage to apply therein. This latter possibility may meet the concerns of both Turkey and Greece.39 Turkey has thus stated that ‘with the limited exceptions provided in articles 35, 36, 38, paragraph 1, and 45, all straits used for international navigation are subject to the regime of transit passage.’40 In response, Greece, in defending its interpretative declaration subject to the Turkish objection, has professed no intention ‘to circumvent the provisions of the Convention, in any manner’.41 One Greek writer has noted the negative impact of the regime of transit passage upon Greek interests,42 but it may be wondered whether it is acceptable to implement, for instance, the regime of innocent passage in this case.43 This situation will be discussed further below Art. 41.44 15 The strictly drafted language of Art. 38 (1) also excludes from its scope straits such as the Canal of Minorca, between Spain’s Island of Majorca and Island of Minorca. The exclusionary effect of the clause in this regard has been criticized. 45

2. The Nature of the Right of Transit Passage The nature of this right is understood to be a freedom, an expression which is normally linked with the regime of the high seas that recognises the freedom to carry out certain activities (�Art. 87).46 But the right has been part of an elaborate regime of associated rules, which distinguish it from the freedoms of navigation and overflight prescribed in Part V and Part VII. It has been included in the UNCLOS as a new right.47 17 It is equally clear that the right described in Art. 38 (2) differs from Art. 18 (2) in respect of activities deemed to be incidental to passage. 48 The latter provision allows stopping and anchoring in the territorial sea, including them as part of the notion of innocent passage, whereas the former does not. Stopping and anchoring under Art. 38 (2) constitute activities that are not in exercise of the right of transit passage, and are subject to Art. 38 (3). It is not correct to suggest that they should therefore be subject to the innocent passage regime, since they are ancillary to the right of transit passage whose existence is not affected by them, as made clear by the independence of Art. 39 (1).49 18 The injunction not to impede transit passage somewhat overlaps with the duty of the coastal State not to hamper such passage as provided by Art. 44.50 Impediment of transit passage may include the requirement to seek prior authorization by the coastal State for ships intending to pass through their straits. In parallel to the UNCLOS, other treaties may include rules that seem to permit such a request for prior consent for passage. An example is Art. 6 (4) of the Basel Convention on the Control of Transboundary Movements of Hazardous Waste and its 16

39

Jia (note 5), 143; Jon M. Van Dyck, The Aegean Disputes in International Law, ODIL 36 (2005), 63, 92. The full text of the Greek Declaration and Turkey’s objection to the declaration are available at: http:// treaties.un.org/pages/ViewDetailsIII.aspx?&src=UNTSONLINE&mtdsg_no=XXI~6&chapter=21&Temp=mtdsg3&lang=en#18. 41 The full text of Greece’s note dated 30 June 1997 regarding the Turkish notification dated 22 February 1996 on the interpretative statement made by Greece at the time of both signature and ratification of the United Nations Convention on the Law of the Sea is available at: http://treaties.un.org/pages/ViewDetailsIII.aspx?&src=UNTSONLINE&mtdsg_no=XXI~6&chapter=21&Temp=mtdsg3&lang=en#18. 42 Anastasia Strati, Greece and the Law of the Sea: A Greek Perspective, in: Aldo Chircop/Andre´ Gerolymatos/ John O. Iatrides (eds.), The Aegean Sea after the Cold War (2000), 89, 94. 43 Anastasia Strati, The Ratification by Greece of the UN Convention on the Law of the Sea, LJIL 9 (1996), 99, 106. 44 See further Jia on Art. 41 MN 6–8. 45 Jose ´ A. de Yturriaga, Straits Used for International Navigation: A Spanish Perspective (1991), 303. 46 Satya N. Nandan/David H. Anderson, Straits Used for International Navigation: A Commentary on Part III of the United Nations Convention on the Law of the Sea, BYIL 60 (1989) 159, 181. 47 Ram P. Anand, Navigation through Territorial Sea and Straits-Revisited, Indian JIL 36 (1996), 13, 35; Argiro L. Morgan, The New Law of the Sea: Rethinking the Implications for Sovereign Jurisdiction and Freedom of Action, ODIL 27 (1996), 5, 17. 48 See Barnes on Art. 18. 49 See further Jia on Art. 39 MN 7–8. 50 See further Jia on Art. 44 MN 4–8. 40

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Disposal (Basel Convention). That provision stipulates, in part, that ‘[T]he State of export shall not allow the transboundary movement to commence until it has received the written consent of the State of transit.’51 The application of the provision is subject to Art. 4 (12) of the Basel Convention, which provides: ‘Nothing in this Convention shall affect in any way the sovereignty of States over their territorial sea established in accordance with international law, and the sovereign rights and the jurisdiction which States have in their exclusive economic zones and their continental shelves in accordance with international law, and the exercise by ships and aircraft of all States of navigational rights and freedoms as provided for in international law and as reflected in relevant international instruments.’

This latter provision gives precedence over the Basel Convention to, inter alia, ‘the exercise 19 by ships and aircraft of all States of navigational rights and freedoms as provided for in international law and as reflected in relevant international instruments’. It follows that such rights and freedoms, conventional or customary, shall prevail over measures established on the basis of the Basel Convention.

3. Transit Passage Includes Entry to or Exit from Local Ports The scope of transit passage is stipulated in Art. 38 (2) to include visit of local ports of a 20 coastal State bordering an international strait. It is possible that the ports are situated within the strait or beyond, though at the negotiations at UNCLOS III, ports within a strait were particularly thought of in this respect.52 It follows that transit passage, once initiated, covers every stage of it within the limits of an Art. 37-type strait. It is the overall nature of passage that counts under Art. 38 (2). This meaning of transit passage does not contradict the provision of Art. 45, in that the strait concerned here still links two parts of the high seas or EEZ. That geographical situation of the strait determines the status of the strait as an Art. 37-strait, rather than an Art. 45-strait. The geographical situation is ‘the decisive criterion’, after all.53 There is another point. The entry into local ports on an Art. 37-strait by ships or aircraft is not understood as breaking the continuity and expeditiousness of the passage, in that the ships or aircraft are not required under Art. 38 (2) to resume passage after visiting local ports in order to complete the transit passage. This seems to suggest that return transit is quite conceivable as a form of the exercise of the right of transit passage. The ports lying along the route within a strait often enhance the international use of the strait as a whole.54

4. The Saving Clause Art. 38 (3) subjects activities not of the exercise of transit passage to other ‘applicable 21 provisions’ of the Convention. Depending on the area in which such an activity takes place, the regime of territorial sea, first of all, is one of the default legal frameworks for that contingency.55 In addition, Art. 38 (3) also gives rise to the application of such general provisions as Art. 304, or other specific provisions of the UNCLOS regarding responsibility and liability. It may be recalled that Art. 304 was adopted in 1980 by the delegations at the Conference in order to facilitate acceptance by the Spanish and Moroccan delegations of the

51 As for the vagueness of the wording in this regard, see Katharina Kummer, The International Regulation of Transboundary Traffic in Hazardous Wastes: The 1989 Basel Convention, ICLQ 41 (1992), 530, 545–546. 52 Nordquist/Nandan/Rosenne (note 23), 324. 53 Corfu Channel (note 28), 28. 54 Stuart B. Kaye, The Torres Strait (1997), 72. This effect can also be observed in Art. 45-type straits: Syme´on Karagiannis, Les de´troits internationaux reliant la mer territoriale d’un E´tat a` la haute mer ou a` la zone e´conomique exclusive d’un autre E´tat, AnDrMer 12 (2007), 141, 183–184. 55 Cf. Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 107.

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whole draft convention, including Part III on straits.56 That article may fill in the blank left by the ISNT’s removal of a specific provision from the Consensus Text of the Private Group on Straits.57 The remaining question of Art. 38 (3) is its relationship with Art. 39 (1) will be dealt with below.

Article 39 Duties of ships and aircraft during transit passage 1. Ships and aircraft, while exercising the right of transit passage, shall: (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; (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. 2. Ships in transit passage shall: (a) comply with generally accepted international regulations, procedures and practices for safety at sea, including the International Regulations for Preventing Collisions at Sea; (b) comply with generally accepted international regulations, procedures and practices for the prevention, reduction and control of pollution from ships. 3. 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 designated air traffic control authority or the appropriate international distress radio frequency. Bibliography: Ian Brownlie, International Law and the Use of Force by States (1963); Yoram Dinstein, War, Aggression and Self-Defence (3rd edn. 2001); Bing Bing Jia, The Regime of Straits in International Law (1998); Nicolas M. Matte, Treatise on Air-Aeronautical Law (1981); Michael Milde, United Nations Convention on the Law of the Sea: Possible Implications for International Air Law, Annals of Air and Space Law 8 (1983), 167–201; Satya N. Nandan/David H. Anderson, Straits Used for International Navigation: A Commentary on Part III of the United Nations Convention on the Law of the Sea, BYIL 60 (1989), 159–204; Nilu¨fer Oral, Straits Used in International Navigation, User Fees and Article 43 of the 1982 Law of the Sea Convention, Ocean Yearbook 20 (2006), 561–594; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Myron H. Nordquist/Shabtai Rosenne/Louis B. Sohn (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. V (1989); Jennifer Trahan, The Rome Statute’s Amendment on the Crime of Aggression: Negotiations at the Kampala Review Conference, Int Crim Law Rev 11 (2011), 49–104; Jose´ A. de Yturriaga, Straits Used for International Navigation: A Spanish Perspective (1991) Documents: ICAO, ICOA Working Paper, Report by Rapporteur Arnold Kean, ICAO Council C-WP/8077 (1985); Review Conference of the Rome Statute, Resolution RC/Res.6 of 11 June 2010; UN DOALOS, Straits Used for International Navigation: Legislative History of Part III of the United Nations Convention on the Law of the Sea, vol. II (1992); US Naval War College, Annotated Supplement to the Commander’s Handbook on the Law of Naval Operations, International Law Studies 73 (1999) 56 Myron H. Nordquist/Shabtai Rosenne/Louis B. Sohn (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. V (1989), 164 (MN 304.4); Art. 304 provides that ‘The provisions of this Convention regarding responsibility and liability for damage are without prejudice to the application of existing rules and the development of further rules regarding responsibility and liability under international law’. 57 Consensus Text (note 22), 207 (Article 4 (6)).

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Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Art. 39 (1): Two Notable Features . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Art. 39 (1) In Relation to the Notion of Transit Passage. . . . . . . . . . . . . . . . . . . . . . . . . 3. Two Duties for Ships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Two Duties for Aircraft. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 4 4 7 9 12

I. Purpose and Function This article includes various conditions that are to be complied with by ships and aircraft 1 in transit passage. The coastal interest in controlling foreign ships or aircraft passing through or over coastal waters forming international straits has been long-standing, with the concern for the security of the coastal State top of all others. Without proper safeguards in this respect, it would hardly be possible to persuade a majority of negotiating States at the UNCLOS III Conference to embrace the new regime of transit passage. A balance of those conflicting interests had to be struck, and fortunately this was achieved at the Conference. Art. 39 sets forth certain duties to be observed by passing ships or aircraft in these 2 circumstances. It is, as it stands, independent of the provision of Art. 38 that provides for the right of transit passage.

II. Historical Background This article seems to have had its origin in the former USSR’s proposal of 1972. 1 It took 3 up a more advanced look with the UK proposal of 1974.2 The Consensus Text of the Private Group on Straits further refined the provisions by adding the clause that ships and aircraft in transit ‘shall…comply with other relevant provisions of this Chapter’, and splitting the two duties to proceed without delay and to refrain from activities other than those incidents to the exercise of transit passage. 3 The Informal Single Negotiating Text made slight changes to the order and some wording of the provisions. 4 Neither Greece’s proposal to require submarines to transit on surface with flags shown, nor Spain’s proposal to omit any reference to aircraft, was adopted in subsequent negotiations. 5 In 1976, Malaysia and Morocco’s proposals to assimilate Art. 39 to Art. 19 (2) by adding a list of activities forbidden in the exercise of transit passage were not adopted. 6 There was, however, no attempt with those proposals to make such forbidden activities equivalent to non-exercise of transit passage. It seems that the distinction between Art. 38 (2) and Art. 39 was well understood even at that time. But, as will be discussed below, the question as to the relationship between those two articles is not easily solved.

1 Sea-Bed Committee, USSR: Draft Articles on Straits Used for International Navigation, UN Doc. A/AC.138/ SC.II/L.7 (1972). 2 Second Committee UNCLOS III, United Kingdom: Draft Articles on the Territorial Sea and Straits, UN Doc. A/CONF.62/C.2/L.3 (1974), OR III, 183 (Ch. III, Article 2). 3 UNCLOS III, Consensus Text of Private Group on Straits, 18 April 1975 (1975, mimeo.), reproduced in: Renate Platzo¨der (ed.), Third United Nations Conference on the Law of the Sea: Documents of the Geneva Session 1975 (1975), 205. 4 UNCLOS III, Informal Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/PART II (1975), OR IV, 152 (Article 39). 5 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 338 (MN 39.5). 6 Ibid., 339 (MN 39.6).

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III. Elements 1. Art. 39 (1): Two Notable Features The first feature is that Art. 39 (1)(b) reflects Art. 2 (4) UN Charter. It may be wondered whether the carrying of explosives by a ship passing through an international strait could constitute a threat of force.7 It is felt that for an action to be regarded as for threat or use of force proof of intention is probably required, above all, in pursuing those two courses of action.8 In this regard, it may be noted that the Rome Statute of the International Criminal Court has just been amended to include the crime of aggression under the jurisdiction of the International Criminal Court. The crime has been so defined as to reflect Art. 2 (4) UN Charter.9 An individual concerned in that crime is one that ‘planned, prepared, initiated or executed an act of aggression.’10 The captain of a ship or aircraft in transit may not meet this requirement, as defined by the Rome Statute’s amendment, as he is probably not the one in a position ‘effectively to exercise control over or to direct the political or military action of the State which committed the act of aggression’.11 But the action by the ship or aircraft will constitute the actus reus of the alleged act of aggression. In addition, it has been suggested that ‘the principles of international law embodied in the UN Charter’ include not only the principles referred to in Art. 2 of the Charter, but in other parts of the Charter, including the rule and principle of self-defence under Art. 51 of the Charter. 12 Violations of these principles may be manifested in other forms. 5 The second notable feature of Art. 39 (1)(c) is that it refers to the ‘normal modes of continuous and expeditious transit’ of ships and aircraft. This has been taken to mean the following: 4

‘This means that submarines are free to transit international straits submerged, since that is their normal mode of operation, and that surface warships may transit in a manner consistent with sound navigational practices and the security of the force, including formation steaming and the launching and recovery of aircraft.’13

6

During the negotiation of the provision, the preceding understanding was already borne in mind by many participants.14 But actual passage may require a different course of action from passing ships, thus making it the normal mode for a particular type of ship in a particular strait.15 There is one noteworthy difference between Art. 39 (1)(c) and Art. 18 (2), in that 7 Nilu ¨ fer Oral, Straits Used in International Navigation, User Fees and Article 43 of the 1982 Law of the Sea Convention, Ocean Yearbook 20 (2006), 561, 568, referring to an incident of a foreign ship carrying 16 tons of explosives, which grounded while in passage through the Turkish Straits. 8 Cf. Ian Brownlie, International Law and the Use of Force by States (1963), 377–378; Yoram Dinstein, War, Aggression and Self-Defence (3rd edn. 2001), 125. 9 Art. 8bis (2) Rome Statute of the International Criminal Court now provides, in respect of the meaning of ‘act of aggression’, that it ‘means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations’. See further, Review Conference of the Rome Statute, Resolution RC/Res.6 of 11 June 2010, Annex I (Amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression); cf. Jennifer Trahan, The Rome Statute’s Amendment on the Crime of Aggression: Negotiations at the Kampala Review Conference, Int Crim Law Rev 11 (2011), 49, 61. 10 Review Conference of the Rome Statute, Resolution RC/Res.6 of 11 June 2010, Annex II (Amendments to the Elements of Crimes). 11 Ibid., Annex I (Art. 8bis (1)). 12 Myron H. Nordquist/Shabtai Rosenne/Louis B. Sohn (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. V (1989), 154 (MN 301.5). 13 US Naval War College, Annotated Supplement to the Commander’s Handbook on the Law of Naval Operations, International Law Studies 73 (1999), 125. 14 Satya N. Nandan/David H. Anderson, Straits Used for International Navigation: A Commentary on Part III of the United Nations Convention on the Law of the Sea, BYIL 60 (1989), 159, 184. 15 Bing Bing Jia, The Regime of Straits in International Law (1998), 150–152.

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activities incident to transit passage, when undertaken legally, must be such that they are rendered necessary by force majeure or by distress; whereas activities incidental to innocent passage in the form of stopping and anchoring in the territorial sea are not so qualified.16 Stopping and anchoring in Art. 37 straits are not part of the conduct of transit passage.

2. Art. 39 (1) in Relation to the Notion of Transit Passage The wording of Art. 39 (1) echoes Arts. 18 (2), 19 (2)(a) and 19 (2)(l). As has been pointed 7 out elsewhere, it relates intimately to the concept of transit passage. 17 However, the concept is given under Art. 38 (2). It is plain that Art. 39 (1)(a) is not different from Art. 38 (2) in any significant way.18 Indeed, it merely expresses in different words the requirement of continuity and expeditiousness of transit passage under Art. 38 (2). Whether this was necessary or not has not previously received much attention. But a more important query is as to whether the obligation to refrain from activities referred to under Art. 39 (1)(b) and (c) plays a similar role as Art. 39 (1)(a), i. e. to further clarify Art. 38 (2). The answer is in the affirmative. A threat or use of force against the coastal State’s sovereignty, or in violation of the principles of international law embodied in the UN Charter, by a passing ship or overflying aircraft could hardly justify the flag State or the State of registry to support the continued enjoyment by the ship or aircraft of the right of transit passage under the UNCLOS. However, stop of transit passage before turning into a traffic separation scheme or inshore traffic zone is often seen in reality due to the nature and design of such schemes, even though that may not be consistent with the literal wording of Art. 39 (1)(c). In this situation, the provision should perhaps be read expansively to allow the ships in that situation to retain their right of transit passage, as their stops happen as a result of complying with traffic separation schemes which are always aimed at, among other things, protecting the coastal environment. Art. 39 (1) is concerned with the manner of transit passage, in that it concerns acts that are 8 performed or enjoined to perform during the exercise of the right of transit passage. In comparison, Art. 38 (2) describes the concept of transit passage, namely, what constitutes transit passage. If, during such passage, activities not essential to transit take place on board the ship or aircraft, it is Art. 38 (3), rather than Art. 39 (1), that shall provide the coastal State with a solution. It is arguable that Art. 39 (1)(b) could have been part of Art. 38, with the other three paragraphs of Art. 39 (1) staying where they are, as they deal with activities which may not necessarily end the exercise of the right of transit passage.

3. Two Duties for Ships The wording of Art. 39, in general, reminds one of the language used by treaties like 9 International Convention for the Safety of Life at Sea (SOLAS 1974)19, in that the provisions are directed at ships and aircraft in transit, rather than flag States or States of registry. Ship masters or captains of the aircraft are the immediate addressees of the duties imposed by this article (except for an alleged breach of Art. 39 (1)(b)). There is therefore a need to disseminate this article and other relevant articles of the UNCLOS among those persons, in addition to national legislation and regulations relating to international straits. In addition it may be noted that, with regard to Art. 39 (2) in particular, the UNCLOS is not designed to limit the regulations, procedures and practices that may be relevant to the provision. Ships in transit shall comply with generally accepted international regulations, procedures 10 and practices for safety at sea, including the International Regulations for Preventing Collisions at Sea (COLREGs). It is recalled that ‘generally accepted’ was a condition suggested by the US at 16

See Barnes on Art. 18. Jia (note 15), 147. 18 See further Jia on Art. 38 MN 16–19. 19 International Convention for the Safety of Life at Sea 1974, as amended. 17

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the UN Sea-Bed Committee in 1972 to avoid unilateral standards by coastal States. 20 It was not controversial even at the time, as the role of the International Maritime Organisation and the treaties it sponsored in shoring up maritime safety in this regard had been widely recognized. The COLREGs have to date been ratified or acceded to by 153 countries, representing 98.36 % of the world’s merchant fleet’s tonnage.21 The SOLAS is also of much relevance in this regard. 11 The same can be said of Art. 39 (2)(b), which stipulates the obligation for ships in transit to comply with generally accepted international regulations, procedures and practices for the prevention, reduction and control of pollution from ships. It is believed that this clause refers chiefly to the Annex I, II Protocol of the Convention for the Prevention of Pollution from Ships. Similarly, this treaty has enjoyed general support among States, with 150 contracting parties as of 31 May 2011, representing 99.14 % of the world’s merchant fleet’s tonnage. 22

4. Two Duties for Aircraft The issue of overflight of international straits by State aircraft caused some controversy during the negotiation of Art. 39.23 Spain for one had insisted until 1978 that ‘aircraft’ should be deleted from Art. 38’s regime of transit passage without success. 24 Later, it proposed that overflight by State aircraft should be regulated on the same footing as other aircraft, but failed to get the suggestion accepted by the necessary majority.25 What this highlights is the differing treatments accorded to State aircraft and other aircraft under Art. 39 (3)(a), as far as the Rules of the Air (the Rules of the Air) established by the International Civil Aviation Organization (ICAO) are concerned.26 The Rules of the Air are applicable to flight over the high seas, and over national territories to the extent that they do not conflict with the rules of the State being overflown. However, the terms of Art. 39 (3)(a) are such that, over Art. 37-type straits, the application of the Rules of the Air are no longer affected by the rules of the State being overflown, which would otherwise be the case, considering the right of ‘any State’ to do so under Art. 38 of the 1944 Convention on the International Civil Aviation (Chicago Convention).27 While the contracting parties to the Chicago Convention must comply without exception with the Rules over the high seas, pursuant to Art. 12 of, and Annex II to, that Convention,28 they could have filed differences allowed under Art. 38 in respect of national territory including territorial waters, but for Art. 39 (3)(a). It makes sense that Art. 39 (3)(a) then stops short of requiring State aircraft to comply with the Rules of the Air. 13 While Art. 39 (3)(a) permits different rules for State aircraft and other aircraft, Art. 39 (3)(b) does not. Aircraft without distinction must ‘at all times’ monitor the radio frequency assigned by the ‘competent internationally designated air traffic control authority’, namely, the authorities ‘listed in the appropriate Regional Air Navigation Plan approved by the ICAO Council’,29 or ‘the appropriate international distress radio frequency’, i. e. the VHF (or Very High Frequency) emergency frequency 121.5 MHz.30 It is recalled that this alternative requirement under Art. 39 (3)(b) does not reflect ‘firmly established practice and international standards 12

20 Sea-Bed Committee, Summary Record of the Thirty-Ninth Meeting, UN Doc. A/AC.138/SC.II/SR. 39 (1972), 33, 40. 21 Information on the status of the COLREGs is available at: http://www.imo.org/About/Conventions/StatusOfConventions/Pages/Default.aspx. 22 Ibid. 23 Jose ´ A. de Yturriaga, Straits Used for International Navigation: A Spanish Perspective (1991), 216–221. 24 UN DOALOS, Straits Used for International Navigation: Legislative History of Part III of the United Nations Convention on the Law of the Sea, vol. II (1992), 107 (para. 175 referring to an informal proposal by the Spanish delegation). 25 Nordquist/Nandan/Rosenne (note 5), 340 (MN 39.9). 26 Rules of the Air, Annex II to the 1944 Convention on International Civil Aviation. 27 ICAO, ICOA Working Paper, Report by Rapporteur Arnold Kean, ICAO Council C-WP/8077 (1985), para. 15. 28 Nicolas Mateesco Matte, Treatise on Air-Aeronautical Law (1981), 212. 29 Michael Milde, United Nations Convention on the Law of the Sea: Possible Implications for International Air Law, Annals of Air and Space Law 8 (1983), 167, 187. 30 Chicago Convention, Annex 10 (Aeronautical Telecommunications, vol. II).

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adopted by the ICAO Council’ that the two frequencies are to be cumulatively observed as a matter of obligation.31 It has been held that the ICAO rules apply as lex specialis.32 That view may just be consistent with the rule stipulated in Art. 311 (2).33 In any case, uncontrolled flight by State aircraft is probably permissible under Art. 39 (3).34

Article 40 Research and survey activities During transit passage, foreign ships, including marine scientific research and hydrographic survey ships, may not carry out any research or survey activities without the prior authorization of the States bordering straits. Bibliography: Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); Erik Franckx, American and Chinese Views on Navigational Rights of Warships, Chinese JIL 10 (2011), 187–206; Zhang Haiwen, Is it Safeguarding the Freedom of Navigation or Maritime Hegemony of the United States?—Comments on Raul (Pete) Pedrozo’s Article on Military Activities in the EEZ, Chinese JIL 9 (2010), 31–47; Satya N. Nandan/David H. Anderson, Straits Used for International Navigation: A Commentary on Part III of the United Nations Convention on the Law of the Sea, BYIL 60 (1989), 159–204; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Myron H. Nordquist/Shabtai Rosenne/Alexander Yankov (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. IV (1991); Raul (Pete) Pedrozo, Preserving Navigational Rights and Freedoms: The Right to Conduct Military Activities in China’s Exclusive Economic Zone, Chinese JIL 9 (2010), 9–29; Wolf Plesmann/Volker Ro¨ben, Marine Scientific Research: State Practice versus Law of the Sea?, in: Ru¨diger Wolfrum (ed.), Law of the Sea at the Crossroads: The Continuing Search for a Universally Accepted Re´gime (1991), 373– 392; J. Ashley Roach, Marine Data Collection: Methods and the Law, in: Myron H. Nordquist/Tommy T.B. Koh/John N. Moore (eds.), Freedom of Seas, Passage Rights and the 1982 Law of the Sea Convention (2009) Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Ships Included . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Consequences of Violating Art. 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 3 3 4

I. Purpose and Function This article stands alone but does not differ in effect from those prohibitive rules set forth in 1 Art. 39 (1). It may have been included in Part III for purposes of emphasis of the general injunction applicable within the territorial sea in respect of research and survey activities as provided under Art. 245.1 If its role is to supplement other articles, such as Art. 38 (3), Art. 39 (1) and Art. 245,2 it may be wondered whether it was necessary to include the article in the UNCLOS separately. The content of the research and survey activities prohibited is not defined under Art. 40, and may well include hydrographical survey, military survey, and even operational oceanography.3 On the other hand, this also shows, from one angle, that the regime of 31

Milde (note 29), 187. Ibid. 33 See further Matz-Lu ¨ ck on Art. 311 MN 10–12. 34 Jia (note 15), 157. 1 Satya N. Nandan/David H. Anderson, Straits Used for International Navigation: A Commentary on Part III of the United Nations Convention on the Law of the Sea, BYIL 60 (1989) 159, 187. 2 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 352 (MN 40.9(b)). 3 Cf. J. Ashley Roach, Marine Data Collection: Methods and the Law, in: Myron H. Nordquist/Tommy T.B. Koh/ John N. Moore (eds.), Freedom of Seas, Passage Rights and the 1982 Law of the Sea Convention (2009), 171, 175. 32

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Part III. Straits used for international navigation

Part III is separate from the regime of Part II. This particular provision avoids the difficulty encountered in interpreting Part XIII in respect of other areas of the sea, in particular the exclusive economic zone.4 On the whole, Art. 40 is identical to Art. 245 in its direction and purpose,5 and may well have the same effect as the latter in directing general State practice to comply with the UNCLOS.6

II. Historical Background 2

It seems that the origin of Art. 40 lay in the concern of certain countries with regards to the conduct of marine survey or research by foreign warships through straits as part of the territorial sea.7 However, some of those States touched upon this aspect of the regulatory power of the coastal State on the premise that international straits would be treated as part of the territorial sea, in which the regime of innocent passage should apply without exception.8 The provision did not feature in either the Consensus Text9 or the Informal Single Negotiating Text (ISNT) Part II, both circulated in 1975 at UNCLOS III. Spain tried to include this provision in Art. 39 of the ISNT/Part II in 1976, but did not succeed. 10 But this effort finally paid off in 1977, when Spain joined Malaysia and Morocco to push for the inclusion of the provision in the then Art. 38 Revised Single Negotiating Text Part II, which was to be re-numbered as Art. 39.11 But the provision appeared as Art. 40 in the Informal Composite Negotiating Text.12 Without trouble, it went on to become Art. 40 of the Convention.

III. Elements 1. Ships Included 3

With its original aim to cover warships in transit, Art. 40, by employing the phrase of ‘foreign ships’ suitably covers both non-military vessels and warships. Furthermore, it specifies one type of ship as subject to its regulation, namely, marine scientific research and hydrographic survey ships. Moreover, Art. 40 is only concerned with foreign ships, and not aircraft, that are exercising the right of transit passage.

4 Raul Pedrozo, Preserving Navigational Rights and Freedoms: The Right to Conduct Military Activities in China’s Exclusive Economic Zone, Chinese JIL 9 (2010), 9, 21–22; Zhang Haiwen, Is it Safeguarding the Freedom of Navigation or Maritime Hegemony of the United States?—Comments on Raul Pedrozo’s Article on Military Activities in the EEZ, Chinese JIL 9 (2010), 31, 35; Erik Franckx, American and Chinese Views on Navigational Rights of Warships, Chinese JIL 10 (2011), 187, 199–200. 5 See further Huh/Nishimoto on Art. 245 MN 1. 6 Wolf Plesmann/Volker Ro ¨ ben, Marine Scientific Research: State Practice versus Law of the Sea?, in: Ru¨diger Wolfrum (ed.), Law of the Sea at the Crossroads: The Continuing Search for a Universally Accepted Re´gime (1991), 373, 387–388. 7 Sea-Bed Committee, USSR: Draft Articles on Straits Used for International Navigation, UN Doc. A/AC.138/ SC.II/L.7 (1972), 1 (para. 2 (a)); Sea-Bed Committee, Cyprus et al.: Draft Articles on Navigation Through the Territorial Sea Including Straits Used for International Navigation, UN Doc. A/AC.138/SC.II/L.18 (1973), 8 (Article 22 (2)(e)). 8 Cyprus et al.: Draft Articles (note 7), which was in the sub-section regarding ‘Warships’. 9 UNCLOS III, Consensus Text of Private Group on Straits, 18 April 1975 (1975, mimeo.), reproduced in: Renate Platzo¨der (ed.), Third United Nations Conference on the Law of the Sea: Documents of the Geneva Session 1975 (1975), 204. 10 Nordquist/Nandan/Rosenne (note 2), 351 (MN 40.5). 11 UNCLOS III, Revised Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/REV.1/PART II (1976), OR V, 151, 159. 12 UNCLOS III, Informal Composite Negotiating Text, UN Doc. A/CONF.62/WP.10 (1977), OR VIII, 11.

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Art. 41

2. Consequences of Violating Art. 40 It is useful to speculate on the consequences of a foreign ship in transit through an Art. 37- 4 type strait violating Art. 40. The article itself is silent in this regard, but has been suggested as complementing Art. 19 (2)(j).13 However, it is not certain that conducting the forbidden activities of research and survey will necessarily lead to the cessation of the right of transit passage. Such violations are therefore similar in effect to violations of Art. 39 (1)(a) or (c). 14 The independence of Art. 39 from Art. 38 (2) is again copied by that of Art. 40 from Art. 38 (2). The applicable provision in that situation is Art. 38 (3). Under this latter provision, four points arise. First, the research or survey activities are not covered by national laws of the coastal State as specified in Art. 42, but the quite useful Art. 42 (5) can be resorted to by the coastal State in respect of research or survey activities by ships entitled to sovereign immunity. Second, it is not thought that Art. 19 (2)(j) may have any role to play, but that Art. 245 does bear on this situation. The two articles underlie two different approaches in this respect, and Art. 245 is to be preferred. Third, it follows from the preceding point that Art. 263 may prove equally useful in that situation.15 Fourth, as a last resort, Art. 304 can be a catch-all clause. 16

Article 41 Sea lanes and traffic separation schemes in straits used for international navigation 1. In conformity with this Part, States bordering straits may designate sea lanes and prescribe traffic separation schemes for navigation in straits where necessary to promote the safe passage of ships. 2. Such States may, when circumstances require, and after giving due publicity thereto, substitute other sea lanes or traffic separation schemes for any sea lanes or traffic separation schemes previously designated or prescribed by them. 3. Such sea lanes and traffic separation schemes shall conform to generally accepted international regulations. 4. Before designating or substituting sea lanes or prescribing or substituting traffic separation schemes, States bordering straits shall refer proposals to the competent international organization with a view to their adoption. The organization may adopt only such sea lanes and traffic separation schemes as may be agreed with the States bordering the straits, after which the States may designate, prescribe or substitute them. 5. In respect of a strait where sea lanes or traffic separation schemes through the waters of two or more States bordering the strait are being proposed, the States concerned shall cooperate in formulating proposals in consultation with the competent international organization. 6. States bordering straits shall clearly indicate all sea lanes and traffic separation schemes designated or prescribed by them on charts to which due publicity shall be given. 7. Ships in transit passage shall respect applicable sea lanes and traffic separation schemes established in accordance with this article. 13

Nordquist/Nandan/Rosenne (note 2), 351 (MN 40.1); see further Barnes on Art. 19 MN 27. Cf. Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 107 (referring to Art. 39 (1)(b) as ‘an obligation ancillary’ to the right of transit passage). 15 Myron H. Nordquist/Shabtai Rosenne/Alexander Yankov (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. IV (1991), 642 (MN 263.8). The wording of Art. 263 is somewhat less clear as to the responsibility and liability arising from marine research conducted in contravention of the UNCLOS by States or competent international organizations or on their behalf, as opposed to that conducted by others to which they respond in violation of the UNCLOS. The latter situation involving their response is addressed by Art. 263 (2). 16 See further, Tams/Devaney on Art. 304 MN 6–16. 14

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Bibliography: Hugo Caminos, The Legal Regime of Straits in the 1982 United Nations Convention on the Law of the Sea, RdC 205 (1987, V), 9–246; Wolff Heintschel von Heinegg, The Law of Military Operations at Sea, in: Terry D. Gill/Dieter Fleck (eds.), The Handbook of the International Law of Military Operations (2010), 325– 374; Bing Bing Jia, The Regime of Straits in International Law (1998); Constance Johnson, A Rite of Passage: The IMO Consideration of the Indonesian Archipelagic Sea-Lanes Submission, IJMCL 15 (2000), 317–332; Stuart B. Kaye, The Torres Strait (1997); Dalchoong Kim/Jin-Hyun Paik, Relation Between User States and Coastal States with Respect to International Navigation, in: Tadao Kuribayashi/Edward L. Miles (eds.), The Law of the Sea in the 1990s: A Framework for Further International Cooperation (1992), 51–67; Harilaos Kontoyiannis/Efstathios Balopoulos/Olympia Gotsis-Skretas/Alexandra Pavlidou/Georgia Assimakopoulou/Emmanuel Papageorgiou, The Hydrology and Biochemistry of the Cretan Straits (Antikithira and Kassos Straits) Revisited in the Period of June 1997-May 1998, Journal of Marine Systems 53 (2005), 37–57; Djamchid Momtaz, La re´gime de passage dans le de´troit d’Hormuz, in: Rafael Casado Raigo´n (ed.), L’Europe et la mer: peˆche, navigation et environnement marin (2005), 167–174; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Daniel O’Connell/Ivan Shearer (eds.), The International Law of the Sea, vol. I (1982); John Papadimas, The Dodecanese and the Aegean Issue: Historical Background, in: Aldo Chircop/Andre´ Gerolymatos/John O. Iatrides (eds.), The Aegean Sea after the Cold War (2000), 7–16; George P. Politakis, The Aegean Dispute in the 1990s: Naval Aspects of the New Law of the Sea Convention, in: Theodore C. Kariotis (ed.), Greece and the Law of the Sea (1997), 292–323; Nicholas M. Poulantzas, The New International Law of the Sea and the Legal Status of the Aegean Sea, Revue Hellenique de Droit International 44 (1991), 251–272; Anastasia Strati, Greece and the Law of the Sea: A Greek Perspective, in: Aldo Chircop/Andre´ Gerolymatos/John O. Iatrides (eds.), The Aegean Sea after the Cold War (2000), 89–102; Hugo Tiberg, Mysteries of Water Boundaries: Baselines and Boundaries Around Sweden’s Coasts, in: Ove Bring/Said Mahmoudi (eds.), Current International Law Issues: Nordic Perspectives (1994), 195–217; Nihan U¨ nlu¨, The Legal Regime of the Turkish Straits (2002) Documents: IMO, Ships’ Routeing (2010); IMO Res. A.572(14) of 20 November 1985; US Naval War College, Annotated Supplement to the Commander’s Handbook on the Law of Naval Operations, International Law Studies 73 (1999); US Department of State, National Claims to Maritime Jurisdictions, Limits in the Seas No. 36 (2000) Cases: Court of Arbitration, Case Concerning a Dispute between Argentina and Chile Concerning the Beagle Channel (Argentina v. Chile), Judgment of 18 February 1977, RIAA XXI, 53 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Establishment of Traffic Separation Schemes and Sea Lanes . . . . . . . . . . . . . . . . . . . . 2. Control by the Competent International Organization. . . . . . . . . . . . . . . . . . . . . . . . . . 3. No Designated Routes for Aircraft . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Consequences for Violation of Art. 41 (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 4 6 6 10 13 14

I. Purpose and Function 1

The right of States bordering straits to establish traffic separation schemes (TSS) within the straits they border has its origin in a customary practice among shipping companies1 and is concerned with the choice of a particular form of ships’ routeing.2 As other similarly designed systems, a TSS is established to contribute to safety of life at sea, safety and efficiency of navigation, and/or protection of the marine environment.3 During the UNCLOS III Conference, the initial position of some States in insisting on a regime of innocent passage in international straits gave way to what has since been referred to as the regime of transit passage enshrined in the UNCLOS. That the interests of the coastal States bordering straits in safety and environ1

IMO, Ships’ Routeing (2010), xi. Ibid., 1, setting forth the General Provisions on Ships’ Routeing as adopted by IMO Res. A.572(14) of 20 November 1985, amended in 2000. The customary practice has never attracted particular problems of general relevance to the regime of international straits: Court of Arbitration, Case Concerning a Dispute between Argentina and Chile Concerning the Beagle Channel (Argentina v. Chile), Judgment of 18 February 1977, RIAA XXI, 53 (paras. 84, 87, 88, 96). 3 Reg. 10, Ch. V International Convention for the Safety of Life at Sea 1974, as amended (SOLAS 1974). 2

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Art. 41

mental protection were recognised through the adoption of Art. 41, facilitated Part III in becoming accepted by the majority of States participating in the negotiations at the conference. 4 It may be wondered whether a strait with a TSS in it, or in its approaches, 5 as adopted and 2 recommended by the International Maritime Organization (IMO), is prima facie a strait used for international navigation.6 It is known that a ships’ routeing system is established to enhance ‘the safety of life at sea, safety and efficiency of navigation, and/or protection of the marine environment’.7 In addition, the IMO is recognized as ‘the only international body for developing guidelines, criteria and regulations on an international level for ships’ routeing systems’.8 At the international level, ships’ routeing systems proposed by States parties to the SOLAS 1974 shall be referred to the IMO for adoption. While the SOLAS 1974 recognizes that there are coastal States that may still establish such systems which are not proposed first to, or adopted by the IMO, the dominant trend is that represented by the States parties to the SOLAS 1974 which, with 159 parties as of 31 May 2011 representing 99.04 % of the world tonnage, have adopted systems pursuant to the SOLAS 1974.9 The IMO holds the view that, in straits used for international navigation, among other areas, governments are requested to establish routeing systems in accordance with the IMO guidelines and criteria and to submit them to the IMO for adoption.10 There is a good case for the view that ships’ routeing is the predominant trend of State practice in relation to congested areas of sea, of which straits are the most typical. Hence, the supposition that a strait with a ships’ routeing system is prima facie one used for international navigation. Whether it falls under Part III depends on its geographical situation. Currently, straits with TSS in them or in their approaches number about 16, including the Aaland Strait, Dover Strait, the Straits of Malacca and Singapore, of Bab-el-Mandeb, Gibraltar, Juan de Fuca, Georgia, and Hormuz, the North Channel, the Great Belt, the Sound, the Turkish Straits, entrance to the Gulf of Finland, the Santa Barbara Channel, the Windward Channel, the Strait of Magellan.11 If account is taken of other routeing measures, such as mandatory reporting systems, many others can be added to this list, like the Torres Strait, the Little Minch, and the Strait of Bonifacio. 12 But it is immediately cautioned that this is a helpful rule of thumb, rather than a legal criterion. To assess whether there is an international strait involved requires more than just a look at the presence of TSS. It is necessary to emphasize that the TSS or sea lanes referred to in Art. 41 are to be 3 followed by not only foreign ships, but ships of the coastal State. The terms of Art. 41 (7) are quite clear on this.

II. Historical Background In terms of the contemporary law of the sea, the schemes envisaged in Art. 41 have been a 4 fixture for international shipping since the 1960s.13 By the time the UNCLOS negotiations first began in the UN Sea-Bed Committee, and then at UNCLOS III itself, the necessity and 4 Djamchid Momtaz, La re ´gime de passage dans le de´troit d’Hormuz, in: Rafael Casado Raigo´n (ed.), L’Europe et la mer: peˆche, navigation et environnement marin (2005), 167, 168–171, on the differing positions of Iran and Oman towards the Hormuz Strait. See further Daniel O’Connell/Ivan Shearer (eds.), The International Law of the Sea, vol. I (1982), 330–331. 5 The approaches to a strait are considered as subject to the regime of international straits: US Naval War College, Annotated Supplement to the Commander’s Handbook on the Law of Naval Operations, International Law Studies 73 (1999), 175–178. 6 As to straits used for international navigation, see further Jia on Art. 37 MN 10–13. 7 Reg. 10 (1), Ch. V SOLAS 1974, as amended. 8 Reg. 10 (2), Ch. V SOLAS 1974. 9 Further information available at: http://www.imo.org/About/Conventions/StatusOfConventions/Pages/Default.aspx. 10 IMO Ships’ Routeing (note 1), para. 3.14 (Part A, General Provisions on Ships Routeing). 11 Ibid., Parts B-G. 12 Ibid. 13 Ibid., xi; cf. Bing Bing Jia, The Regime of Straits in International Law (1998), 157.

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desirability of traffic separation schemes was already beyond dispute. 14 The main structure of Art. 41 took shape with the UK proposal to the second session of the Conference in 1974, which, however, was without current paragraphs 3 (conformity with international regulations) and 5 (cooperation by two or more States in formulating proposals for TSS) of Art. 41.15 In the proposal, all TSS proposed by coastal States must be approved by the IMO. 5 But when the Consensus Text of the Private Group on Straits was circulated in April 1975, Art. 41 was more or less complete with its present clauses. 16 Even the requirement that TSS must be approved by the IMO before their designation was revised to a rule that the IMO might adopt only such a TSS as agreed with the strait State concerned. That version of Art. 41 was duly adopted by the Informal Single Negotiating Text Part II. In 1976, Greece made an interesting suggestion that sea lanes could be established for straits among a group of islands. 17 This was to become part of Greece’s interpretative declaration made upon its signature of, and confirmed upon ratification (on 21 July 1995) of the UNCLOS.18 Subsequently, the text of the draft Art. 41 remained unchanged in substance.19

III. Elements 1. Establishment of Traffic Separation Schemes and Sea Lanes 6

With a primary emphasis on securing maritime safety for vessels navigating congested areas of sea, the existence of TSS and sea lanes may have taken on more significance than was first thought at the time of its inclusion in the UNCLOS. The thorny problem of the multiple routes into the Aegean Sea from the Mediterranean or the Black Sea is relevant to this point. Greece has made an interpretative declaration upon signature and confirmed on ratification of the UNCLOS. The declaration states: ‘The present declaration concerns the provisions of Part III on straits used for international navigation and more especially the application in practice of articles 36, 38, 41 and 42 of the Convention on the Law of the Sea. In areas where there are numerous spread out islands that form a great number of alternative straits which serve in fact one and the same route of international navigation, it is the understanding of Greece, that the coastal state concerned has the responsibility to designate the route or routes, in the said alternative straits, through which ships and aircraft of third countries could pass under transit passage regime, in such a way as on the one hand the requirements of international navigation and overflight are satisfied, and on the other hand the minimum security requirements of both the ships and aircraft in transit as well as those of the coastal state are fulfilled.’20

7

The reference to Art. 41 shows the Greek intention to put the device of traffic separation scheme to effect in areas of direct concern to it. There is a balance, as indicated in the declaration, between the security of navigation and overflight, as well as that of the coastal State and the ‘requirements of international navigation and overflight’. This, depending on 14 Sea-Bed Committee, United States: Draft Articles on the Breadth of the Territorial Sea, Straits and Fisheries, UN Doc. A/AC.138/SC.II/L.4 (1971), 2 (Article II (1)); Sea-Bed Committee, USSR: Draft Articles on Straits Used for International Navigation, UN Doc. A/AC.138/SC.II/L.7 (1972), 1; Sea-Bed Committee, Cyprus et al.: Draft Articles on Navigation Through the Territorial Sea Including Straits Used for International Navigation, UN Doc. A/AC.138/SC.II/L.18 (1973), 8 (Art. 6 (a)). 15 Second Committee UNCLOS III, United Kingdom: Draft Articles on the Territorial Sea and Straits, UN Doc. A/CONF.62/C.2/L.3 (1974), OR III, 183, 186 (Ch. III, Art. 3). 16 UNCLOS III, Consensus Text of Private Group on Straits, 18 April 1975 (1975, mimeo.), reproduced in: Renate Platzo¨der (ed.), Third United Nations Conference on the Law of the Sea: Documents of the Geneva Session 1975 (1975), 204. 17 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 360. 18 See infra MN 6. 19 Nordquist/Nandan/Rosenne (note 17), 361–362 (MN 41.6–41.7). 20 The full text of Greece declaration is available at: http://treaties.un.org/pages/ViewDetailsIII.aspx?&src= UNTSONLINE&mtdsg_no=XXI~6&chapter=21&Temp=mtdsg3&lang=en#EndDec.

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perspective,21 seemingly expands on the scope of Art. 41, which was intended to be applied to ships in transit. On the one hand, it touches on the possibility of establishing air routes of transit. On the other, it is also likely to broaden the scope of Art. 41 by reflecting a concern with the security of the coastal State, i. e. Greece in this case, rather than with ‘the safe passage of ships’ as stipulated in the article. The geographical and legal situation in the Aegean Sea is indisputably complex. 22 While the 8 Greek declaration signals its intention to simplify the routes of passage and overflight through the sea area in which its islands and islets are widely scattered, thus showing a willingness to facilitate the use of local passages, it should be noted that the potential routes envisaged by Greek writers might all fall within a territorial sea of 12 NM, if it ever claimed that width in this area.23 The two routes singled out for this purpose are the one comprising Antikithira Strait, between Antikithira and Crete Islands, and the other, Kassos Strait between Crete and Kassos Islands.24 Both routes link the Aegean Sea and the wider Mediterranean to the south of the Island of Crete. At the moment, Greece has maintained its 6 NM territorial sea in the Aegean Sea, even though it is suggested that it retains the right to extend to 12 NM under the UNCLOS.25 As such, the two routes leave in their midst a corridor of high seas or exclusive economic zone (EEZ).26 However, even now a designation of routes of transit in the Aegean Sea will have to face the difficulty that the existence of the Greek Cyclades Islands and the Greek territorial sea of 6 NM surrounding them effectively cut in two the high seas of the Aegean Sea along a north-south axis. Any ship or aircraft heading for the Black Sea may have to negotiate, at some points, Greek territorial waters and the superjacent airspace. 27 This case-study raises the question as to whether ships’ routeing measures, such as the TSS 9 and designated sea lanes, may broaden the category of Art. 37-type straits. It is submitted that the existence of a TSS in a strait may prove the appeal of the strait to international shipping, but that it is not intended to join two or more straits by such a system, as a TSS is tailored to the shipping pattern in a particular geographical strait. But, occasionally, designated sea lanes, by linked TSS, may link geographical straits along one and the same route.28 If the TSS linked number more than three, the route or sea lane so formed could be very similar in effect to an archipelagic sea lane, which is itself a routeing system.29 Between convenience for shipping and efficiency of management, on the one hand, and the legal questions associated with transit passage in or over off-shore archipelagos separated by narrow straits on the other, a balanced solution is still to be struck on the basis of Part III. Another point is that a TSS also has to take 21 Cf. Turkey’s Objection to the Declaration made by Greece upon Signature and Ratification of the Convention: Turkey considers the Greek declaration as creating a new category of straits and contrary to the ICAO rules regulating the establishment of air routes; and Greece’s Note dated 30 June 1997 Regarding the Turkish Notification dated 22 February 1996 on the Interpretative Statement made by Greece at the Time of both Signature and Ratification of the United Nations Convention on the Law of the Sea: Greece considers its interpretation as in line with the spirit and true meaning of the UNCLOS, both texts are available at: http://treaties.un.org/pages/ViewDetailsIII.aspx?&src=UNTSONLINE&mtdsg_no=XXI~6&chapter=21&Temp=mtdsg3&lang=en#18. 22 Not to mention the historical evolvement of the regional relationship, as described by John Papadimas, The Dodecanese and the Aegean Issue: Historical Background, in: Aldo Chircop/Andre´ Gerolymatos/John O. Iatrides (eds.), The Aegean Sea after the Cold War (2000), 7–13. 23 George P. Politakis, The Aegean Dispute in the 1990s: Naval Aspects of the New Law of the Sea Convention, in: Theodore C. Kariotis (ed.), Greece and the Law of the Sea (1997), 292, 301. 24 The former has a minimum width of 16.2 NM, and the latter 32.4 NM: Harilaos Kontoyiannis et al., The Hydrology and Biochemistry of the Cretan Straits (Antikithira and Kassos Straits) Revisited in the Period of June 1997-May 1998, Journal of Marine Systems 53 (2005), 37, 38. 25 Nicholas M. Poulantzas, The New International Law of the Sea and the Legal Status of the Aegean Sea, Revue Hellenique de Droit International 44 (1991), 251, 263. 26 Cf. the attitude of Greece on the claim to an EEZ: Anastasia Strati, Greece and the Law of the Sea: A Greek Perspective, in: Chircop/Gerolymatos/Iatrides (note 22), 89 (footnote 32). 27 Politakis (note 23), 313 (the map). 28 IMO Ships’ Routeing (note 1), V/6-V/9: such as the case with the TSS in the Straits of Malacca and Singapore. 29 Cf. IMO Ships’ Routeing (note 1), Part H: Indonesian archipelagic sea lanes adopted in 1998; also see Constance Johnson, A Rite of Passage: The IMO Consideration of the Indonesian Archipelagic Sea-Lanes Submission, IJMCL 15 (2000), 317, 326–327, containing a list of Indonesia’s considerations in proposing the sea lanes.

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into account the navigability of a strait for which it is established, thus confining international shipping to designated channels for navigation by reason of the varying depth of the water body of a strait. For ships, international straits may simply mean the navigable routes delineated by TSS.30 While the interests of the coastal State lie with all the waters forming an international strait it borders, those of foreign ships in transit are necessarily confined to the routes open to navigation.

2. Control by the Competent International Organization Art. 41 (4) refers to ‘the competent international organization’ in relation to the designation of traffic separation schemes within straits. The organization is understood to be the IMO. According to Reg. 10 (2), Ch. V SOLAS, the IMO is recognized ‘the only international body for developing guidelines, criteria and regulations on an international level for ships’ routeing systems’. That recognition is also acknowledged by States and the IMO itself. 31 11 The role of the IMO is largely recommendatory in relation to its member States, as far as it concerns 10

‘regulations and guidelines concerning maritime safety, the prevention and control of marine pollution from ships and other matters concerning the effect of shipping on the marine environment assigned to the Organization by or under international instruments, or amendments to such regulations and guidelines which have been referred to it.’32 It has been observed that IMO recommendations, while not legal binding, are ‘widely accepted and implemented’.33

12

Two points are noteworthy in this respect. First, the establishment or substitution of a TSS or the like is subject to agreement between the proposing State and the IMO. Neither may proceed unilaterally.34 In comparison, the coastal State’s power is limited under Art. 22 (3)(a).35 Secondly, the sea lanes or TSS referred to in Art. 41 must conform to ‘generally accepted international regulations’. This originated in the Consensus Text of the Private Group on Straits36, in which the regulations were referred to those mentioned in the preceding article. This preceding article has since become Art. 39. Art. 39 (2) specifically mentions the International Regulations for Preventing Collisions at Sea.

3. No Designated Routes for Aircraft 13

Art. 41 applies solely to shipping in Art. 37-type straits. It is recalled that, during the negotiations of the UNCLOS, there were proposals to establish ‘air straits’ over this type of strait.37 This was echoed by Spain in its criticism of the Informal Composite Negotiating Text.38 In comparison, air routes may be established along the same axis lines followed by the designated archipelagic sea lanes, pursuant to Art. 53 (5). 39 In view of this situation, it may be wondered whether extension of the territorial sea to 12 NM could be tempered, in suitable conditions, with a restraint from attempting such extension in international straits, which will 30

Stuart B. Kaye, The Torres Strait (1997), 14–15. Hugo Caminos, The Legal Regime of Straits in the 1982 United Nations Convention on the Law of the Sea, RdC 205 (1987-V), 9, 166; further, see IMO, Implications of the United Nations Convention on the Law of the Sea for the International Maritime Organization, Study by the Secretariat, IMO Doc. LEG/MISC/1 (1986, mimeo.). 32 Arts. 2 (a) and 15 (j) Convention on the International Maritime Organization, as amended 1995. 33 Nihan U ¨ nlu¨, The Legal Regime of the Turkish Straits (2002), 64. 34 Art. 41 (2) and (4); Nordquist/Nandan/Rosenne (note 17), 363 (MN 41.9(a)). 35 See further Barnes on Art. 22 MN 11–13. 36 Consensus Text (note 16). 37 UNCLOS III, Greece: Amendments, UN Doc. A/CONF.62/L.123 (1982), OR XVI, 232. 38 UNCLOS III, Statement by the Delegation of Spain Dated 26 August 1980, UN Doc. A/CONF.62/WS/12 (1980), OR XIV, 149, para. 5. 39 See further Barnes/Massarella on Art. 53 MN 14. 31

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leave a high sea or EEZ corridor through the straits.40 It is not certain whether the practice of Japan and the Republic of Korea in the Tsushima or Korea Strait will have a wider following in practice,41 with a preserved high sea corridor for navigation and overflight.42 The practice of Sweden and Denmark with regard to the extent of their respective territorial seas in the Kattegat and Bornholm areas is similarly minded.43

4. Consequences for Violation of Art. 41 (7) There is the possibility that ships in transit passage ignore the sea lanes or TSS established 14 by the coastal State, which Art. 41 (7) obligates the ships to respect. There is no consequence spelt out under Art. 41 for any such violations by the ships, but reference is made to Arts. 42 (5) and 233, on the basis of which the coastal State may find remedy against the violations. 44

Article 42 Laws and regulations of States bordering straits relating to transit passage 1. Subject to the provisions of this section, States bordering straits may adopt laws and regulations relating to transit passage through straits, in respect of all or any of the following: (a) the safety of navigation and the regulation of maritime traffic, 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; (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. 2. Such laws and regulations shall not discriminate in form or in fact among foreign ships or in their application have the practical effect of denying, hampering or impairing the right of transit passage as defined in this section. 3. States bordering straits shall give due publicity to all such laws and regulations. 4. Foreign ships exercising the right of transit passage shall comply with such laws and regulations. 5. The flag State of a ship or the State of registry of an aircraft entitled to sovereign immunity which acts in a manner contrary to such laws and regulations or other provisions of this Part shall bear international responsibility for any loss or damage which results to States bordering straits. 40 Cf. the case of the Strait of Gibraltar over which, in 1973 and 1986, respectively, US military aircraft flew: Jia (note 13), 183, 188–189. Also see Wolff Heintschel von Heinegg, The Law of Military Operations at Sea, in: Terry D. Gill/Dieter Fleck (eds.), The Handbook of the International Law of Military Operations (2010), 325, 335. 41 US Department of State, National Claims to Maritime Jurisdictions, Limits in the Seas No. 36 (2000), 83: Japan has, since 1977, with further clarification in 1996, maintained a 3 NM territorial sea in the Soya, Tsugaru, and Osumi straits, and the Eastern and Western Channels of Tsushima; ibid., 88: Republic of Korea has since 1977, with further clarification in 1995, maintained a 3 NM territorial sea in the Korea Strait. 42 Dalchoong Kim/Jin-Hyun Paik, Relation Between User States and Coastal States with Respect to International Navigation, in: Tadao Kuribayashi/Edward L. Miles (eds.), The Law of the Sea in the 1990s: A Framework for Further International Cooperation (1992), 51, 62–63. 43 Hugo Tiberg, Mysteries of Water Boundaries: Baselines and Boundaries Around Sweden’s Coasts, in: Ove Bring/Said Mahmoudi (eds.), Current International Law Issues: Nordic Perspectives (1994), 195, 208–212. 44 See Jia on Art. 45 MN 19–20; Becker-Weinberg on Art. 233.

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Bibliography: Robert C. Beckman, PSSAs and Transit Passage: Australia’s Pilotage System in the Torres Strait Challenges the IMO and UNCLOS, ODIL 38 (2007), 325–357; R. Douglas Brubaker, The Russian Arctic Straits (2005); Milen Dyoulgerov, Navigating the Bosporus and the Dardanelles: A Test for the International Community, IJMCL 14 (1999), 57–100; David W. Abecassis/Richard L. Jarashow (eds.), Oil Pollution from Ships: International, United Kingdom and United States Law and Practice (2nd edn. 1985); Bing Bing Jia, The Regime of Straits in International Law (1998); Stuart B. Kaye, The Torres Strait (1997); Katherina Kummer, International Management of Hazardous Wastes (1995); Cynthia Lamson/David Van der Zwaag, Arctic Waters: Needs and Options for Canadian-American Cooperation, ODIL 18 (1987), 49–99; Satya N. Nandan/David H. Anderson, Straits Used for International Navigation: A Commentary on Part III of the United Nations Convention on the Law of the Sea, BYIL 60 (1989), 159–204; Patrick J. Neher, Compulsory Pilotage in the Torres Strait, in: Myron H. Nordquist/Tommy T. B. Koh/John Norton Moore (eds.), Freedom of Seas, Passage Rights and the 1982 Law of the Sea Convention (2009), 339–355; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Myron H. Nordquist/Shabtai Rosenne/Alexander Yankov (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. IV (1991); Brian Smith, State Responsibility and the Marine Environment: The Rules of Decision (1988); Jon M. Van Dyck, Legal and Practical Problems Governing International Straits, Ocean Yearbook 12 (1996), 109–125; Elaine B. Weinstein, The Impact of Regulation of Transport of Hazardous Waste on Freedom of Passage, IJMCL 9 (1994), 135–172 Documents: Australian Maritime Safety Authority, Revised Pilotage Requirements for Torres Strait, Marine Notice 8/2006 (2006); Italian Ministry of Infrastructure and Transport, VTS Messina Straits: User Manual (2009); UN DOALOS, Baselines: An Examination of the Relevant Provisions of the United Nations Convention on the Law of the Sea (1989); UN DOALOS, Straits Used for International Navigation: Legislative History of Part III of the United Nations Convention on the Law of the Sea, vol. II (1992); US Department of State, Territorial Regimes and Related Issues, Digest of United States Practice in International Law (2006), 805–851 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Legislative Competences of the Coastal State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Non-Discrimination and No Hampering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Due Publicity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. The Obligation and Responsibility of Foreign States . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 5 5 12 18 19

I. Purpose and Function This article provides for a list of competences for the coastal State to regulate transit passage through straits on which it borders. It relates mainly to ships in transit. Aircrafts are included within its ambit, but in a secondary way. Considering that Art. 41 has already dealt with the power of the coastal State to put in place traffic separation schemes (TSS), this article supplements this power further by adding other competences. The competences listed in Art. 42 (1) are believed to be exhaustive, as proposals for additional powers of the coastal State have either been rejected during the negotiations at UNCLOS III, or incorporated elsewhere in the UNCLOS.1 2 Art. 42 (5) also allows the coastal State to invoke the international responsibility of the flag State of a ship or the State of registry of an aircraft entitled to sovereign immunity for any loss or damage caused due to violations of the laws and regulations or other provisions of Part III. Leaving aside breaches of local laws, the reference to responsibility for violating ‘other provisions of Part III’ is quite important for compliance purposes, even though the reference is confined to a particular category of ship and aircraft. 1

1 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 375 (MN 42.10(a)).

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II. Historical Background Art. 42 appeared first as a simple provision regarding the liability of the flag State for the 3 damage done to the coastal State by its ship in transit passage. 2 The UK proposal of 1974 further added the competence of the coastal State to legislate in respect of two matters in particular: the implementation of the TSS and oil pollution.3 It is also noteworthy that the UK proposal did not include any reference to aircraft at the time. However, reference to aircraft-incurred damage to the coastal State during the transit of the aircraft was included in the proposal from six East European countries.4 The Private Group on Straits expanded on the legislative competencies of the coastal State,5 and its Consensus Text6 was incorporated in the Informal Single Negotiating Text Part II, which included a reference to aircraft. In 1976, Spain and Greece both sought to delete the reference to aircraft from Art. 42, without success.7 Among the failed proposals to build on the existing text of Art. 42, Greece proposed in 1978 to include ‘the safety of air traffic and the rules, regulations and procedures of the ICAO’, showing a willingness to compromise on the transit by aircraft, but the proposal was not adopted at the conference. 8 In 1982, Spain proposed to replace the word ‘applicable’ in Art. 42 (1)(b) by the phrase 4 ‘generally accepted’, on the ground that the applicability of a regulation could depend on the flag of the ship concerned, thus making it impossible to maintain the objectivity of this regime.9 The proposal was not adopted.

III. Elements 1. Legislative Competences of the Coastal State The coastal State finds its competences to regulate ships and aircraft in transit in this 5 article. These competencies are legislative in nature. 10 Art. 42 (1)(a) and (b) are complementary as far as prevention of pollution is concerned, but the former also deals with the safety issue generally. Art. 42 (1)(b) tackles one particular type of pollution: ship-based pollution from discharging oil, oily wastes, or other noxious substances. Contemporary practice has shown that ship-based pollution (esp. of oil) has always been top of the concerns of the State bordering the strait. However, there may be a concern that the competences granted by Art. 42 in this regard are very limited.11 Art. 233 in fact exacerbates this limiting effect by further conditioning the exercise of coastal enforcement power upon the showing that a violation of the laws and regulations referred to in Art. 42 (1)(a) and (b) is ‘causing or 2 Sea-Bed Committee, USSR: Draft Articles on Straits Used for International Navigation, UN Doc. A/AC.138/ SC.II/L.7 (1972), 2. 3 Second Committee UNCLOS III, United Kingdom: Draft Articles on the Territorial Sea and Straits, UN Doc. A/CONF.62/C.2/L.3 (1974), OR III, 183, 186 (Ch. III, Article 4). 4 Second Committee UNCLOS III, Bulgaria et al.: Draft Articles on Straits Used for International Navigation, UN Doc. A/CONF.62/C.2/L.11 (1974), OR III, 189 (Article 3 (2)(c)). 5 Satya N. Nandan/David H. Anderson, Straits Used for International Navigation: A Commentary on Part III of the United Nations Convention on the Law of the Sea, BYIL 60 (1989) 159, 190–191. 6 UNCLOS III, Consensus Text of Private Group on Straits, 18 April 1975 (1975, mimeo.), reproduced in: Renate Platzo¨der (ed.), Third United Nations Conference on the Law of the Sea: Documents of the Geneva Session 1975 (1975), 204. 7 Nordquist/Nandan/Rosenne (note 1), 372–373 (MN 42.5). 8 Ibid., 374 (MN 42.8). 9 UN DOALOS, Straits Used for International Navigation: Legislative History of Part III of the United Nations Convention on the Law of the Sea, vol. II (1992), 136. 10 Bing Bing Jia, The Regime of Straits in International Law (1998), 160. 11 Brian Smith, State Responsibility and the Marine Environment: The Rules of Decision (1988), 209.

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threatening major damage to the marine environment of the straits’. 12 Bar an eventuality of a major damage, therefore, coastal enforcement powers will not be exercisable. 6 Among the competencies is one that requires foreign ships to report of prospective passage, which does not necessarily link with TSS as regulated by Art. 41. On 1 January 1996, an amendment of Reg. 11 (1), Ch. V International Convention for the Safety of Life at Sea 1974 (SOLAS)13 came into force by making ship reporting systems compulsory for ‘all ships’, when ‘adopted and implemented in accordance with the guidelines and criteria developed by the Organization pursuant to this regulation’. This amendment marks the shift from voluntary reporting to mandatory reporting for the sake of ‘safety of life at sea, safety and efficiency of navigation and/or protection of the marine environment’,14 which is the aim for legislation adopted under Art. 42 (1)(a). Such reporting systems are to be proposed by coastal States to the IMO for adoption pursuant to Reg. 11 (2), Ch. V SOLAS before establishment by the States (Reg. 11 (3), Ch. V SOLAS), but may also be established without submitting them first to the IMO under Reg. 11 (4), Ch. V SOLAS. 7 Art. 42 (1)(b) refers to local regulations in respect of prevention of pollution that may be caused by, in particular, ‘oil, oily wastes and other noxious substances in the strait’. To single out the first two material sources of pollution reflects a particular concern on the part of coastal States. It may be said that relevant international instruments will be the standard against which national legislation is to be designed. Such instruments include, for instance, the Basel Convention on the Control of Transboundary Movements of Hazardous Waste and its Disposal of 1989 (Basel Convention), which applies to transport of oily waste and other noxious substances. 15 They also include the International Convention for the Prevention of Pollution from Ships together with its annexes, and possibly the International Maritime Dangerous Goods Code,16 and the International Code for Construction and Equipment of Ships Carrying Dangerous Chemicals in Bulk.17 8 Regarding the phrase ‘applicable international regulations’ in Art. 42 (1)(b), the US Department of State, in its consideration of a protest against Spain’s declaration made upon signature of the UNCLOS in 1984,18 reasoned that ‘Spain’s declaration number 4 declares that article 42 does not preclude it from also applying to such vessels legislation that gives effect to “generally accepted international regulations.” The difference, of course, is that regulations that are “generally accepted” because a number of states are parties to the relevant conventions may not be “applicable” to a particular vessel because its flag state is not a party. The distinction is a real one that appears elsewhere in the Convention, and the fact that article 42 speaks only of the coastal [s]tate giving effect to the more limited category of “applicable” international regulations implies rather clearly that coastal [s]tate does not have the right to require transiting vessels to comply with the broader category of “generally accepted” international regulations.’

9

The fishing activities in terms of Art. 42 (1)(c) that may incur the ire of the coastal State are not infrequently observed within straits,19 even though their scale may not be the same as 12

Further Becker-Weinberg on Art. 233 MN 11–13. International Convention for the Safety of Life at Sea (SOLAS 1974), as amended. At 30 April 2012 SOLAS 1974 had 161 contracting States, further information available at: http://www.imo.org/About/Conventions/StatusOfConventions/Pages/Default.aspx. 15 Cf. Elaine B. Weinstein, The Impact of Regulation of Transport of Hazardous Waste on Freedom of Passage, IJMCL 9 (1994), 135, 154. 16 IMO International Maritime Dangerous Goods Code, available at: http://www.imo.org/blast/mainframe.asp?topic_id=158. 17 IMO International Code for Construction and Equipment of Ships Carrying Dangerous Chemicals in Bulk, further information available at: http://www.imo.org/OurWork/Environment/PollutionPrevention/ChemicalPollution/Pages/IBCCode.aspx. 18 The full text of the Spanish declaration is available at: http://treaties.un.org/Pages/ViewDetailsIII.aspx?&src=TREATY&mtdsg_no=XXI~6&chapter=21&Temp=mtdsg3&lang=en#10. 19 Italian Ministry of Infrastructure and Transport, VTS Messina Straits: User Manual (2009), 6, where it was noted that intensive fishing has been part of the local scene along and within the strait, available at: www.guardiacostiera.it/servizi/documents/manualivts/manualeutentemessina_inglese.pdf. 13 14

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that in EEZs. Such activities are not incidental to the transit passage carried out by fishing vessels. Fishing in the territorial sea, ultimately, is a matter regulated by the regime of the territorial sea pursuant to Art. 19 (2)(i).20 Art. 42 (1)(d) parallels what has been provided by Arts. 21 (1)(h) and 33 (1)(a), 21 and 10 again any activities regulated by Art. 42 (1)(d) is not incidental to the exercise of the right of transit passage. The clause’s reference to ‘States bordering straits’ may not be open to a broad interpretation that can allow one of such States to legislate against ships in transit through a strait bordered by it and other States, if the ships do not violate the terms of Art. 42 (1)(d) against the interest of that State.22 From the preceding, it may be inferred that Art. 42 provides further particulars to Arts. 11 38 (3) and 39 (1)(c).23 In respect of the activities specified under Art. 42 (1), the coastal State has been granted legislative powers. But as far as enforcement power is concerned, recourse may be had by States parties to the UNCLOS to Part XII. In that part, Art. 233 is directly concerned with international straits covered by Part III in respect of violations of Art. 42 (1)(a) and (b) that are causing or threatening major damage to the marine environment of the straits.24 Only then may enforcement measures be taken by the coastal State against the ship in question, which results in the end of the transit passage. 25 While pollution of straits may result from pollution from or through the atmosphere, Art. 233 is not applicable in that instance. In addition, the ship in question cannot be one covered by Section 10 of Part XII. Additionally, Art. 234 may provide another venue for enforcement actions by the coastal State in designated areas of the oceans, which will be dealt with below.

2. Non-Discrimination and No Hampering Having granted the coastal State four types of power under Art. 42 (1)(a), excluding for 12 instance the power to impose compulsory pilotage,26 Art. 42 quickly redresses any potential imbalance of powers by prohibiting discriminatory application of the laws or regulations by the coastal State among foreign ships or an application of such laws or regulations with the effect of denying, hampering or impairing the right of transit passage as defined in the relevant section. The non-discriminatory treatment required under Art. 42 (2) is not controversial, but there are pending questions associated with the second obligation under that clause against denying, hampering or impairing the right of transit passage. The prohibited effects may take the form of increasing waiting time before entry into a 13 strait due to procedures laid down by the coastal State in legislation, which in turn increases the risk of grounding or collision in the waiting area.27 It may also take the form of measures promulgated by the coastal State in controversial circumstances, such as the compulsory pilotage instituted by Australia in the Torres Strait in 2006. 28 Strict liability, accompanied by a heavy fine, awaits the master or owner of a ship transiting the strait without a pilot under 20

Further Barnes on Art. 19 MN 26. See Barnes on Art. 21 MN 19 and Khan on Art. 33 MN 25. Jon M. Van Dyck, Legal and Practical Problems Governing International Straits, Ocean Yearbook 12 (1996) 109, 124: on the issue of gambling ships passing through the Malacca Strait. 23 See Jia on Art. 38 MN 21 and on Art. 39 MN 5–6. 24 See infra, MN 15–16. 25 For criticism of the ambiguity of the provision, see David W. Abecassis/Richard L. Jarashow (eds.), Oil Pollution from Ships: International, United Kingdom and United States Law and Practice (2nd edn. 1985), 107. 26 Stuart B. Kaye, The Torres Strait (1997), 85. 27 Milen Dyoulgerov, Navigating the Bosporus and the Dardanelles: A Test for the International Community, IJMCL 14 (1999), 57, 90: local regulations were said to hamper passage by causing significant delays on entry into straits. 28 Australian Maritime Safety Authority, Revised Pilotage Requirements for Torres Strait (2006), Marine Notice 8/2006, available at: http://www.intertanko.com/upload/25553/Marine.pdf. 21 22

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the relevant Australian regulations.29 The legal basis for the regulations, as claimed by Australia, is in Resolution MEPC.133(53), adopted on 22 July 2005, by the Marine Environment Protection Committee of the IMO.30 However, the resolution was adopted by consensus as recommendatory in nature.31 On 7 June 2006, the US lodged its protest at Canberra, in which it was stated: ‘[…] it is the firm position of the United States that there is no basis in the international law of the sea as reflected in the Law of the Sea Convention for the institution of a system of compulsory pilotage in a strait used for international navigation, such as the Torres Strait, applicable to ships exercising the right of transit passage.’32

The main question in relation to the Australian measure is whether it is consistent with Art. 42 (1) and (2), with Art. 44 as a residual rule.33 There is a case, prima facie, that the measure in question may hamper transit passage through the strait, as the ships in transit have to stop to take on board a licensed pilot before proceeding with passage, thus interrupting the continuous and expeditious transit as defined under Art. 38 (2). 15 Art. 42 (2) is further augmented in two ways. First, the hampering effect of coastal States’ regulation is also prohibited under Art. 44. Second, the prohibition under Art. 42 (2) is strengthened by other relevant treaties on pollution prevention. Thus, Art. 4 (12) of the Basel Convention expressly stipulates that ‘the exercise by ships and aircraft of all States of navigational rights and freedoms as provided for in international law and as reflected in relevant international instruments’ is not to be affected by the provisions of that convention. Priority is therefore clearly assigned to the law of the sea. 34 Another point of interest is that Art. 42 (2) obviously has a narrower scope than Art. 4 Basel Convention, in that the latter clearly envisages the application of the Convention to not only land territory and marine area of a State, but also the airspace above them, over which the State exercises ‘administrative and regulatory responsibility in accordance with international law in regard to the protection of human health or the environment’, in terms of Art. 2 (9) Basel Convention. 16 With Art. 233 in force, it is noted, impairing or even impeding passage may happen when ships in transit passage are causing or threatening major damage to the marine environment of the straits they are passing through. In practice, the under-keel clearance enforced by Malaysia, Indonesia, and Singapore provides a practical interpretation of Art. 233.35 Among the appropriate measures to be taken against violations of Art. 233 is the prevention of passage of a ship which fails to meet the under-keel-clearance required by IMO Res. A.375(X). 36 This interpretation has been accepted generally by the coastal and user States of the Malacca and Singapore Straits.37 Inspection or even detention of such ships under Arts. 220 and 226 may be undertaken by coastal States in those circumstances. 38 In these circumstances, it may still be arguable that transit passage is not hampered except in the exceptional situation envisaged by Art. 233.39 14

29 Patrick J. Neher, Compulsory Pilotage in the Torres Strait, in: Myron H. Nordquist/Tommy T.B. Koh/John N. Moore (eds.), Freedom of Seas, Passage Rights and the 1982 Law of the Sea Convention (2009), 339, 341 (footnote 2), citing S. 186 I of Navigation Act 1912. 30 IMO Res. MEPC.133(53) of 22 July 2005. 31 Ibid., Preamble; Robert C. Beckman, PSSAs and Transit Passage: Australia’s Pilotage System in the Torres Strait Challenges the IMO and UNCLOS, ODIL 38 (2007), 325, 330–336; Neher (note 29), 352–353. 32 US Department of State, Territorial Regimes and Related Issues, Digest of United States Practice in International Law (2006), 805, 811; further, see Beckman (note 31), 337. 33 Beckman (note 31), 345. 34 Katherina Kummer, International Management of Hazardous Wastes (1995), 53. 35 See further International Hydrographic Office, Underkeel Clearance, IHO Doc. SNPWG13 14.3 (2011), available at: http://www.iho.int/mtg_docs/com_wg/SNPWG/SNPWG13/SNPWG13-14.3_UnderKeelClearance.pdf. 36 IMO Res. A.375(X) of 14 November 1977. 37 UNCLOS III, Letter Dated 28 April from the Representative of Malaysia to the President of the Conference, UN Doc. A/CONF.62/L.145 (1982), OR XVI, 251 (Annex, para. 2); see also, Jia (note 10), 161–162. 38 Myron H. Nordquist/Shabtai Rosenne/Alexander Yankov (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. IV (1991), 391 (MN 233(f)). 39 But see Nandan/Anderson (note 5), 192.

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Art. 42

While it has been suggested that Art. 233 is separate from Art. 234, because the two articles 17 were aimed by the delegations at the Conference at achieving different balances of interest, 40 there is lingering doubt as to whether the interests so balanced are indeed different. Further, to argue that Art. 233 does not apply to Section 8 Part XII requires more than just an examination of the terms of Art. 233.41 For the terms of that article only exclude Sections 5 to 7 of Part XII with regard to straits, but not Section 8. Moreover, it is not settled that Art. 234 cannot be applied to straits subject to Part III.42 What has been said about the Northwest Passage is the proof of this.43 Indeed, Canada has already stated its position that this article represents customary law.44 Under Art. 234, the coastal State can surely enforce anti-pollution regulations within an ice-covered route of straits that exists between two parts of the high seas or EEZ and within the limits of the coastal State’s EEZ.45 There will be therefore the possibility that transit passage may be stopped, even if due regard to the passage is paid by the coastal State. 46 On the other hand, it may be that any action to enforce the laws of the coastal State under Art. 42 and Art. 234 has to follow the rules in Section 6 of Part XII, which are however excluded by Art. 233 from affecting the regime of straits under Part III. Art. 233 does not directly apply to Art. 234, but indirectly it could. Otherwise, Art. 234 may have the effect of denying the existence of Art. 37-type straits in ice-covered areas, which may not be what was intended by the countries involved in the negotiation of Art. 234: the US, for instance. 47

3. Due Publicity The obligation to give due publicity is common to many parts of the UNCLOS, including 18 the one provided under Art. 42 (3) in which coastal States in particular are envisaged to exercise regulatory or enforcement powers. It is suggested that due publicity means ‘notification of a given action for general information through appropriate authorities within a reasonable amount of time in a suitable manner’.48 The same duty has been included under Art. 41 (2) and (6). Due publicity may be given in the form of publication of the relevant laws and regulations in the official gazette of the coastal State or in the Law of the Sea Bulletin and the like.

4. The Obligation and Responsibility of Foreign States Art. 42 (5) was important for the joining in the consensus on Part III by several States 19 bordering international straits.49 Its effect is similar to that of Arts. 235, 263 and 304. 50 But it is still an interesting fact that, while this clause can stand on its own, it remains part of an article that is focused on something not entirely coextensive with it in terms of scope. On the other hand, while Art. 42 (5) is concerned with ships and aircraft entitled to sovereign immunity, other ships and aircraft in violation of the laws and regulations of the coastal State promulgated according to Art. 42 (1) or in breach of Part III will be subject to Art. 34. At this 40

Nordquist/Rosenne/Yankov (note 38), 393 (MN 234.1). Cf. R. Douglas Brubaker, The Russian Arctic Straits (2005), 134–135. 42 Cynthia Lamson/David Van der Zwaag, Arctic Waters: Needs and Options for Canadian-American Cooperation, ODIL 18 (1987), 49, 81. 43 See further Jia on Art. 35 MN 8–9. 44 Jia (note 9), 174. 45 See Franckx/Boone on Art. 234 MN 14–15. 46 Jia (note 9), 163. 47 Nordquist/Rosenne/Yankov (note 38), 393 (MN 234 (1)); see also Jia (note 10), 174, 200–201: Canada has indeed maintained that the Northwest Passage is not an international strait. 48 Nordquist/Nandan/Rosenne (note 1), 149 (MN 16.8(c)); UN DOALOS, Baselines: An Examination of the Relevant Provisions of the United Nations Convention on the Law of the Sea (1989), 54. 49 See further, Jia on Art. 38 MN 18–19. 50 See Stephens on Art. 235 MN 7–23, further Tams/Devaney on Art. 263 MN 9–20 and Tams/Devaney on Art. 304 MN 6–16. 41

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juncture, the separation of the obligation of compliance with local laws and regulations from the notion of transit passage assumes significance for the following reason: if they are separated, as is the case from a consideration of the full context of Part III, the enforcement powers of the coastal State are very limited. If they are not separated, the ships at fault could lose the right of transit passage, which in turn triggers the regime of the territorial sea. For their passage takes place in the confines of the territorial sea of the coastal State, and Arts. 19 (2), 27 and 28 may come into play. 20 If compliance (or lack thereof) with local laws and regulations does not affect the right of transit passage because they are separated, the ships in transit passage cannot be stopped in spite of non-compliance with local laws.51 While delegations at UNCLOS III were concerned with the behaviour of State vessels and aircraft, it seems that Part III is silent as to the consequences of the illegal activities of non-State vessels and aircraft in transit. 52 The inference is that the legislative power of the coastal State under Art. 42 is not only restricted by the non-suspension and non-impediment obligations, but also given a more limited scope in comparison with the powers conferred under Art. 21.53 The limitation imposed by Art. 42 itself is probably determined by reason of the distinct aim and nature of the regime of straits established in Part III.54

Article 43 Navigational and safety aids and other improvements and the prevention, reduction and control of pollution User States and States bordering a strait should by agreement 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. Bibliography: Bing Bing Jia, The Regime of Straits in International Law (1998); Douglas M. Johnston, The Northwest Passage Revisited, ODIL 33 (2002), 145–164; Steven B. Kempton, Ship Routing Measures in International Straits, Ocean Yearbook 14 (2000), 232–250; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Nilu¨fer Oral, Straits Used in International Navigation, User Fees and Article 43 of the 1982 Law of the Sea Convention, Ocean Yearbook 20 (2006), 561–594; Bernard Oxman, Observations on the Interpretation and Application of Article 43 of the United Nations Convention of the Law of the Sea with Particular Reference to the Straits of Malacca and Singapore, SYBIL 3 (1999), 408–426; Horace B. Robertson, Passage through International Straits: A Right Preserved in the Third United Nations Conference on the Law of the Sea, VJIL 20 (1980), 801–857; Hiroshi Terashima, Transit Passage and Users’ Contributions to the Safety of the Straits of Malacca and Singapore, in: Myron H. Nordquist/Tommy T.B. Koh/John N. Moore (eds.), Freedom of Seas, Passage Rights and the 1982 Law of the Sea Convention (2009), 357–368 Documents: Canadian Ministry of Foreign Affairs, Canada’s Arctic Foreign Policy, No. 2009/11 (2009); GA, Letter Dated 22 October 2007 from the Permanent Representatives of Indonesia, Malaysia and Singapore to the United Nations Addressed to the Secretary-General, UN Doc. A/62/518 (2007); US Department of State, Territorial Regimes and Related Issues, Digest of United States Practice in International Law (2006), 805–851 Cases: ICJ, Case Concerning Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia v. Singapore), Judgment of 23 May 2008, ICJ Reports (2008), 12

51

See further, Jia on Art. 44 MN 11. Cf. Nordquist/Nandan/Rosenne (note 1), 378 (MN 42.10(j)-(k)), the reference on that page to Art. 229, is helpful, but that article does not cover violations of Art. 42 (1)(a), (c) and (d) that do not necessarily result in marine pollutions to which Art. 229 is applicable. 53 See further Barnes on Art. 21. 54 Nordquist/Nandan/Rosenne (note 1), 377 (MN 42.10(g)). 52

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Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Necessary Aids and Aids Improving Navigational Conditions. . . . . . . . . . . . . . . . . . . 2. The Concern with Pollution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Charges and Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 4 4 9 10

I. Purpose and Function Navigational aids, long indispensable to seafaring, do not present problems in straits used 1 for international navigation if they are used for the purpose of enhancing the usefulness of the waterways, by virtue of their inherent convenience to navigators. Where there exists a degree of dependence on such aids on the part of foreign shipping, however, a problem will arise as to whether the strait concerned can still be regarded as a geographical waterway. That dependence may also make the State bordering the strait wary of existing aids or any future additions with respect to the legal status of the strait concerned. If a user State’s vessels do not abide by local regulations within the strait, may the coastal State cease to provide navigational aids? Art. 43 is hortatory in wording. It points out the way in which the issue of navigational 2 aids is to be handled between user and coastal States, i. e. by agreement. It is specific as to the function of aids that may be installed in a strait. The actual method of establishing the aids has been left for the coastal State to determine and initiate, hopefully with a consensus reached with the user States. As such, it contains no duty upon the coastal State to provide navigational aids. In addition, cooperation is also encouraged between the coastal and user States in the combat against pollution from ships within the straits.

II. Historical Background The legal issue that has been associated with navigational aids is in relation to charges and 3 levies that the coastal State may impose on ships plying its straits. 1 It was the case with the Maltese proposal to the UN Sea-Bed Committee in 1973.2 The charges for navigational aids provided by the coastal State were expected to be collected by the coastal State through a fund administered by ‘international ocean space institutions’. The level of charges was to be determined by treaties between the States concerned and the institutions. However, the UK proposal of 1974 to UNCLOS III set the tone for the future Art. 43, with a generally worded provision encouraging user and strait States to cooperate in this matter. 3 The aids provided were those of navigation or for the prevention and control of pollution from ships. The proposal left the matter to single agreements between the two groups of States concerned. The proposal was incorporated in the Consensus Text of the Private Group on Straits, the ISNT/Part II, and RSNT/Part II, with little change, and the attempts at expanding the scope of the article all failed.4 1 Bing Bing Jia, The Regime of Straits in International Law (1998), 115–116 (the Sound Dues); also see, ICJ, Case Concerning Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia v. Singapore), Judgment of 23 May 2008, ICJ Reports (2008), 12, paras. 170–178. 2 Sea-Bed Committee, Malta: Preliminary Draft Articles on the Delimitation of Coastal State Jurisdiction in Ocean Space and on the Rights and Obligations of Coastal States in the Area Under Their Jurisdition, UN Doc. A/AC.138/SC.II/L.28 (1973), 19–20 (Article 40). 3 Second Committee UNCLOS III, United Kingdom: Draft Articles on the Territorial Sea and Straits, UN Doc. A/CONF.62/C.2/L.3 (1974), OR III, 183, 186 (Ch. III, Article 5). 4 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 382–383 (MN 43.4–43.6).

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III. Elements 1. Necessary Aids and Aids Improving Navigational Conditions The approach of the UNCLOS in this regard is somewhat innovative, in that navigational aids often come into existence for the benefit of local users that frequent narrow parts of the sea. It has been doubtful that navigational aids could be demanded, as a matter of a general right, by foreign ships. Conversely, there is the likelihood that reliance upon existing aids may be developed over the long run by foreign ships, to the extent that their change or removal by the coastal State could disrupt existing patterns of traffic. The distinction between necessary and facilitating aids assumes significance in these cases. The assumption here is that navigational aids may generate international traffic, but not necessarily so. For international use of a strait exists as a result of the geographical situation of a strait, even without aids in place. But where aids are provided by the coastal State as a matter of necessity, as opposed to a legal duty, for passage to happen in the strait, and consequently the geographical situation alone cannot attract foreign shipping, it is doubtful that the strait can be one subject to the law of international straits. The strait becomes effectively an artificial waterway like the Suez Canal. This argument is of course tentative, and the case of the Northwest Passage may show why it is so.5 In the Passage, pilotage and icebreaking capability are always necessary for surface transit, but they are not necessarily rendered in practice by the coastal State, Canada. As for foreign warships, and submarines in particular, there has been no need for such assistance to be sought. 5 The Agreement between the Government of the United States and the Government of Canada on Arctic Cooperation, concluded on 11 January 1988, has left intact the positions of the two parties regarding the law of the sea in this or other maritime areas. 6 It is known that the US regards the Passage as an international strait, possibly falling under Art. 37. 7 The uncertainty of the status of this waterway, composed of a series of straits forming several routes, remains even with the 1988 Agreement existent. 8 On the other hand, the Agreement, signed between two strait States, partly lends support to the importance of Art. 43 without, however, any reference to the article. The problem that surrounds this waterway has been partly dealt with elsewhere.9 Based on Canada’s own assessment, the Northwest Passage 4

‘[is] not predicted to become a viable, large-scale transit route in the near term, in part because mobile and unpredictable ice in the Passage poses significant navigational challenges and other routes are likely to be more commercially viable.’10

6

Navigational aids, in particular local information on ice conditions from, for instance, the Arctic Canada Traffic System or NORDREG, may remain the norm to be followed by any transiting commercial vessel for the foreseeable future. The complexity of the issue as to the legal status of the Passage is plain to see.

5

Douglas M. Johnston, The Northwest Passage Revisited, ODIL 33 (2002), 145, 148–149. Art. 4 Agreement between the Government of the United States and the Government of Canada on Arctic Cooperation, 11 January 1988, ILM 28 (1989), 141, 142–143. 7 Johnston (note 5), 148. 8 Cf. the Polar Star incident of October 1988, in which the US Government sought consent from the Canadian counterpart to allow the eponymous US icebreaker to pass through the Northwest Passage to exit the Arctic at Newfoundland, and in which consent was granted by the Canadian Government, US Note No. 425, ILM 28 (1989), 144–145. 9 See Jia on Art. 37 MN 8–9. 10 Canadian Ministry of Foreign Affairs, Canada’s Arctic Foreign Policy, No. 2009/11 (2009) (per Minister of Foreign Affairs Lawrence Cannon). 6

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43

It is recognised that gradually, the provision of navigational aids by the coastal State may 7 become a legal obligation under various international treaties. 11 For instance, Reg. 13, Ch. 5 International Convention for the Safety of Life at Sea 1974 (SOLAS)12, provides as follows: ‘Each Contracting Government undertakes to provide, as it deems practical and necessary, either individually or in co-operation with other Contracting Governments, such aids to navigation as the volume of traffic justifies and the degree of risk requires.’

While the obligation under SOLAS is qualified by certain conditions, it is a treaty under- 8 taking nevertheless.13 Such provisions are not inconsistent with any article of the UNCLOS. On the contrary, they complement by strengthening the latter in creating a legal obligation. However, it may be pointed out that the duty to provide navigational aids in the Northwest Passage does not affect the applicability of the law of international straits to the Passage, as the aids are often facilitative in nature.

2. The Concern with Pollution Art. 43 only looks at the matter of pollution from the angle of cooperation between user 9 Straits and States bordering Art. 37-type international straits. While this exhortatory provision speaks specifically to the question of pollution, it contains no obligation to either enter into negotiation of an agreement between those States or indicate any possible design for such an agreement. In addition, it is linked with the provision and maintenance of navigational aids in the straits. This aim to enhance safety of navigation does not overlap completely with the aim to prevent pollution, as ships may pass through the same strait with a great variety of goods on board and with markedly different lengths. It is felt that this is the reason behind the reference in Art. 43 to pollution. Practice shows that the International Maritime Organization will continue to have a role to play in this respect, as this is closely linked to its expertise and competence.14

3. Charges and Taxes Art. 43 is silent on levies which may be charged by the coastal State. It certainly permits levies 10 to be charged on the basis of an agreement between the user and coastal States. In practice, charges are not completely banned in international straits. For straits under individual treaty regimes, for instance, the coastal State may well be allowed by the relevant treaty to charge a levy on passages through their waterways.15 A similar concession could be found in Art. 26 (2), pursuant to which charges may be levied for specific services rendered to the ship in passage. 16 Art. 43 leaves some space for the States concerned to sort this out among themselves, without expressly permitting the coastal State to deal with this matter in the same way that it may within its territorial sea beyond Art. 37-type straits.17 In a contemporary case, the coastal and user States of the Malacca and Singapore Strait has set a useful precedent for the application of 11 In this regard, the concerns for safety of navigation are being mixed with those for security: US Department of State, Territorial Regimes and Related Issues, Digest of United States Practice in International Law (2006), 805, 807: citing the US’ legal position at the IMO’s meeting in Kuala Lumpur in 2006. 12 International Convention for the Safety of Life at Sea (SOLAS 1974), as amended. 13 The treaty entered into force for both Canada and the US on 25 May 1980. 14 Cf. Steven B. Kempton, Ship Routing Measures in International Straits, Ocean Yearbook 14 (2000), 232, 243, 248. 15 Nilu ¨ fer Oral, Straits Used in International Navigation, User Fees and Article 43 of the 1982 Law of the Sea Convention, Ocean Yearbook 20 (2006), 561, 574–575, where it is noted that the 1936 Montreux Convention Regarding the Regime of the Straits, by Art. 2 and Annex I to the Convention, permitted Turkey to collect a set tax, based on tonnage, from passing foreign ships to defray the costs in maintaining standard aids, such as lighthouses, buoys and life-saving services. 16 See further Barnes on Art. 26 MN 6–7. 17 Horace B. Robertson, Passage Through International Straits: A Right Preserved in the Third United Nations Conference on the Law of the Sea, VJIL 20 (1980), 801, 834–835.

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Art. 44

1

Part III. Straits used for international navigation

Art. 43.18 While Japan has been cooperating with the coastal States of the straits financially and technically for years, a new Cooperative Mechanism has been shaping up since 2006,19 with more user States, the shipping industry, and other stakeholders to be drawn in to the cause of enhancing safety, security, and environmental protection in the straits. 20 The financial burden in maintaining safe, efficient, and environmentally low-risk maritime transport through these busy waterways has gradually been shared by non-coastal States, which, after all, had been one of the concerns at the Conference to coastal States bordering international straits.

Article 44 Duties of States bordering straits States bordering straits shall not hamper transit passage and shall give appropriate publicity to any danger to navigation or overflight within or over the strait of which they have knowledge. There shall be no suspension of transit passage. Bibliography: Hugo Caminos, The Legal Regime of Straits in the 1982 United Nations Convention on the Law of the Sea, RdC 205 (1987, V), 9–246; Erik Franckx, Coastal State Jurisdiction with respect to Marine Pollution: Some Recent Developments and Future Challenges, IJMCL 10 (1995), 253–280; Bing Bing Jia, The Regime of Straits in International Law (1998); Syme´on Karagiannis, Les de´troits internationaux reliant la mer territoriale d’un E´tat a` la haute mer ou a` la zone e´conomique exclusive d’un autre E´tat, AnDrMer XII (2007), 141–226; Stuart B. Kaye, The Torres Strait (1997); Satya N. Nandan/David H. Anderson, Straits Used for International Navigation: A Commentary on Part III of the United Nations Convention on the Law of the Sea, BYIL 60 (1989) 159–204; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Sandrine Piaskowski-Rafowicz, Les ponts sur les de´troits, ¨ nlu¨, The Legal Regime of the Turkish Straits (2002) AnDrMer IX (2004), 319–345.; Nihan U Documents: Decree of the Minister of Merchant Marine of 26 February 1993 relating to the Straits of Boniface (in Official Gazette of the Italian Republic No. 50 of 2 March 1993); IMO, Mandatory Ship Reporting System ‘The Torres Strait Region and the Inner route of the Great Barrier Reef’, IMO Res. MSC.52(66) of 30 May 1996; Prefectural Order No. 1/93 (France), 15 February 1993, Prohibiting the Movement in the Bouches de Bonifacio of Tankers Carrying Oil and Ships Carrying Dangerous or Toxic Substances Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. No Hampering of Transit Passage; Dangers to Transit Passage. . . . . . . . . . . . . . . . . 2. Non-Suspension of Transit Passage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 4 4 9

I. Purpose and Function 1

The obligation not to impede transit passage is set forth in Art. 38 (1). Art. 44 seems to complement this, and other earlier provisions in Part III, such as Art. 42 (2). It adds another element to the duty of publicity given to any dangers to navigation and overflight within straits which the coastal State borders. To further clarify the supremacy of the right of transit passage, it adds the non-suspension obligation.1 18

GA Res. 64/71 of 4 December 2009, para. 87. GA, Letter Dated 22 October 2007 from the Permanent Representatives of Indonesia, Malaysia and Singapore to the United Nations Addressed to the Secretary-General, UN Doc. A/62/518 (2007), formally establishing the Mechanism. 20 Hiroshi Terashima, Transit Passage and Users’ Contributions to the Safety of the Straits of Malacca and Singapore, in: Myron H. Nordquist/Tommy T.B. Koh/John N. Moore (eds.), Freedom of Seas, Passage Rights and the 1982 Law of the Sea Convention (2009), 357, 360, 363–367. 1 Bing Bing Jia, The Regime of Straits in International Law (1998), 166. 19

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2–4

Art. 44

The injunction against hampering transit passage may give rise to queries as to what is 2 precisely involved: physical impediment or constructive restrictions resulting from the requirements of the national legislation of the coastal State. There is the question as to the proliferation of terms in this and other related provisions of Part III that may confuse rather than clarify.2 Conversely, it may be inferred from the repeated emphasis carried by those similar terms used in Part III that the supremacy of the right of transit passage in the context of the part is beyond any doubt.

II. Historical Background The origin of this article probably lay with the proposal of the former USSR, submitted 3 to the UN Sea-Bed Committee in 1972.3 At UNCLOS III, the UK proposal of 1974 provided the basic ingredients for Art. 44.4 Other straits States were at least not averse to the idea of non-suspension of innocent passage through international straits. 5 The UK proposal was incorporated in the Consensus Text by the Private Group on Straits and the Informal Single Negotiating Text Part II.6 The provision has since remained unchanged in substance.

III. Elements 1. No Hampering of Transit Passage; Dangers to Transit Passage Part III includes words with similar connotations to the word ‘hampering’, and this 4 parallelism makes it less easy to distinguish between them for different purposes. 7 If hampering means to delay or complicate the exercise of transit passage, the reporting system, just as coastal States’ regulations on various matters, 8 imposed on passing ships may be relevant to this consideration.9 In practice, States, while being aware of the usefulness of this system, have been reluctant to make it compulsory in general, and in international straits in particular.10 However, the situation may be different now that the contracting States of the International Convention for the Safety of Life at Sea (SOLAS 1974)11 have already recognized the mandatory nature of such systems as long as the latter fulfil the requirements of Reg. 11, Ch. V SOLAS 1974. Reg. 11 (9), Ch. V however, cautions: 2 Cf. Satya N. Nandan/David H. Anderson, Straits Used for International Navigation: A Commentary on Part III of the United Nations Convention on the Law of the Sea, BYIL 60 (1989), 159, 195. 3 Sea-Bed Committee, USSR: Draft Articles on Straits Used for International Navigation, UN Doc. A/AC.138/ SC.II/L.7 (1972), 2 (para. 2 (e)); ibid., 3 (para. 2 (d)). 4 Second Committee UNCLOS III, United Kingdom: Draft Articles on the Territorial Sea and Straits, UN Doc. A/CONF.62/C.2/L.3 (1974), OR III, 183, 186 (Ch. III, Article 6). 5 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 386–387 (MN 44.3–44.4); cf. Art. 15 Convention on the Territorial Sea and the Contiguous Zone. 6 UNCLOS III, Consensus Text of Private Group on Straits, 18 April 1975 (1975, mimeo.), reproduced in: Renate Platzo¨der (ed.), Third United Nations Conference on the Law of the Sea: Documents of the Geneva Session 1975 (1975), 204; UNCLOS III, Informal Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/ PART II (1975), OR IV, 152 (Article 43). 7 Cf. the wording of Art. 38 (1): ‘impeded’, see Jia on Art. 38 MN 18, and the wording of Art. 42 (2): ‘denying, hampering or imparing’, see also Jia on Art. 42 MN 12–17. 8 Nordquist/Nandan/Rosenne (note 5), 365 (MN 41.9(g)). 9 Cf. IMO, Mandatory Ship Reporting System ‘The Torres Strait Region and the Inner route of the Great Barrier Reef’, IMO Res. MSC.52(66) of 30 May 1996; further, see Stuart B. Kaye, The Torres Strait (1997), 85–86. 10 Erik Franckx, Coastal State Jurisdiction With Respect to Marine Pollution: Some Recent Developments and Future Challenges, IJMCL 10 (1995), 253, 266–272. 11 International Convention for the Safety of Life at Sea (SOLAS 1974), as amended.

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Art. 44

5–10

Part III. Straits used for international navigation

‘Nothing in this regulation or its associated guidelines and criteria shall prejudice the right and duties of Governments under international law or the legal regimes of straits used for international navigation and archipelagic sea lanes.’

It may be inferred, therefore, that the rights of passage through international straits prevail over a reporting system established by the coastal State in accordance with the SOLAS 1974, and that in case of a dispute involving the rights and the reporting duty by ships, the flag State, supposing also a party to the SOLAS 1974, will probably be in a better position, consequently. It may also be inferred from the wording of the aforementioned provision that the legal regimes for straits probably include those based in long-standing treaties as referred to in Art. 35 (c).12 6 The hampering effect may also arise where a strait is crossed by a bridge of a certain height in clearance.13 This problem has so far occurred in two straits which are excluded from the ambit of the regime of transit passage,14 but may affect more straits in future.15 The precedent of the Great Belt Project in Denmark could be helpful in engendering similar cases of settlement. 7 It goes without saying that local laws that are consistent with ‘applicable international regulations’ under Art. 42 (1)(b) are not hampering transit passage. 8 Art. 44 also requires ‘appropriate publicity’ given to any dangers to navigation and overflight within the straits that may be in the knowledge of the coastal State. Where publicity fails to come forth due to dolus or culpa on the part of the coastal State, Art. 304 comes into play.16 It may not be of practical importance to distinguish appropriate and due publicity employed by Art. 44 and Art. 42 (4), respectively. 5

2. Non-Suspension of Transit Passage The obligation of non-suspension of transit passage is a general and absolute prohibition imposed on the coastal States bordering international straits. It probably strengthens the delinking of Arts. 38 and 39 in the interpretation and application of those articles, 17 since the 1974 British proposal set the tone for that separation of the right of transit passage from the duties of the flag States in exercise of the right.18 10 The Strait of Bonifacio is an interesting case in this regard. 19 From the late 1970s, the two coastal States, France and Italy, have been gradually moving towards a prohibition of oil, gas, and chemicals tankers from passing through this waterway. Under the UNCLOS, this strait belongs to the category of Art. 37-type international straits. The two coastal States, in view of the environmental vulnerability of the waterway, have persuaded the International Maritime Organization (IMO) to work with them in adopting relevant resolutions which eventually recommend to the member States of the IMO not to send their oil tankers or chemical carriers to pass through the strait.20 It is for the user States bar Italy and France to 9

¨ nlu¨, The Legal Regime of the Turkish Straits (2002), 76–78; see further Jia on Art. 35 MN 12–16. Cf. Nihan U Jia (note 1), 165–166. 14 Further Jia on Art. 45 MN 16. 15 Syme ´on Karagiannis, Les de´troits internationaux reliant la mer territoriale d’un E´ tat a` la haute mer ou a` la zone e´conomique exclusive d’un autre E´tat, AnDrMer XII (2007), 141, 200: on a project for a bridge over, among other places, the Tiran Strait. Other projects exist, see Sandrine Piaskowski-Rafowicz, Les ponts sur les de´troits, AnDrMer IX (2004), 319, 329–334, 341–345. 16 See further Tams/Devaney on Art. 304 MN 6–16. 17 Jia (note 1), 166. 18 Hugo Caminos, The Legal Regime of Straits in the 1982 United Nations Convention on the Law of the Sea, RdC 205 (1987, V), 9, 149–150. 19 Franckx (note 10), 272–274. 20 Prefectural Order No. 1/93 (France), 15 February 1993, Prohibiting the Movement in the Bouches de Bonifacio of Tankers Carrying Oil and Ships Carrying Dangerous or Toxic Substances, available at: http:// www.premar-mediterranee.gouv.fr/arretes.html?frame=download-arretes.php&fichier=436; Decree of the Minister of Merchant Marine of 26 February 1993 relating to the Straits of Boniface (in Official Gazette of the Italian Republic No. 50 of 2 March 1993). 12 13

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Art. 45

Innocent passage

voluntarily follow the recommendations of the IMO in this regard. The coastal States have not suspended transit passage as such. Another point in this respect is that the obligation of the coastal State not to suspend 11 transit passage pursuant to Art. 44 cl. 2 bolsters the obligations for the State bordering the strait not to impede (�Art. 38 (1)), and not to hamper, deny, or impair (�Art. 42 (2) and �Art. 44 cl. 1) transit passage. But, as has been discussed above, in respect of Arts. 42 21 and 23322, transit passage may in fact be suspended in a specified situation. While, with regard to innocent passage through international straits, an identical prohibition is included under Art. 45 (2), it is clear that the applicability of the identical prohibition is conditioned by the requirement that the ships concerned are in fact conducting either innocent passage or transit passage. Suspension can be affected by the coastal State where the ships’ passage is losing or has lost its character as being either innocent or transit passage.

Section 3 Innocent passage Article 45 Innocent passage 1. The regime of innocent passage, in accordance with Part II, section 3, shall apply in straits used for international navigation: (a) excluded from the application of the regime of transit passage under article 38, paragraph 1; or (b) between a part of the high seas or an exclusive economic zone and the territorial sea of a foreign State. 2. There shall be no suspension of innocent passage through such straits. Bibliography: Ian Brownlie, Principles of Public International Law (7th edn. 2008); Władyław Czaplin´ ski, International Legal Aspects of the Relations of Poland with Neighbouring States, AVR 36 (1998), 425–443; Ali A. El-Hakim, The Middle Eastern States and the Law of the Sea (1979); Eric Franckx, Report Number 10-6 (1) and (2), in: Jonathan I. Charney/Lewis M. Alexander (eds.), International Maritime Boundaries, vol. II (1993); Philip Jessup, The Law of Territorial Waters and Maritime Jurisdiction (1927); Bing Bing Jia, The Regime of Straits in International Law (1998); Syme´on Karagiannis, Les de´troits internationaux reliant la mer territoriale d’un E´tat a` la haute mer ou a` la zone e´conomique exclusive d’un autre E´tat, AnDrMer XII (2007), 141–226; Louise de La Fayette, Access to Ports in International Law, IJMCL 11 (1996), 1–22; Stephen C. McCaffrey, The Law of International Watercourses (2nd edn. 2007); Satya N. Nandan/David H. Anderson, Straits Used for International Navigation: A Commentary on Part III of the United Nations Convention on the Law of the Sea, BYIL 60 (1989), 159–204; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Horace B. Robertson, Passage through International Straits: A Right Preserved in the Third United Nations Conference on the Law of the Sea, VJIL 20 (1980), 801–857; Fabio Spadi, The Bridge on the Strait of Messina: ‘Lowering’ the Right of Innocent Passage, ICLQ 50 (2001), 411–419; Tullio Treves, Navigation, in: Rene´-Jean Dupuy/Daniel Vignes (eds.), A Handbook on the New Law of the Sea, vol. II (1991), 835–976; Ru¨diger Wolfrum, Germany and the Law of the Sea, in: Tullio Treves/Laura Pineschi (eds.), The Law of the Sea: The European Union and its Member States (1997), 199–224; Romain Yakemtchouk, Le re´gime de la navigation a` travers le de´troit de Baltiysk, Revue du Marche´ commun et de l’Union europe´enne 467 (2003), 225–230 Documents: Italian Ministry of Infrastructure and Transport, VTS Messina Straits: User Manual, December 2009; UN DOALOS, Second Ordinance for the Implementation of the Law on the State Frontier of the German Democratic Republic (Frontier Ordinance), 20 December 1984, LOSB 4 (1985), 41–42; UN DOALOS, National Legislation on the Territorial Sea, the Right of Innocent Passage and the Contiguous Zone (1995); US Naval War College, Excessive Maritime Claims, International Law Studies 66 (1994)

21 22

See further, Jia on Art. 42 MN 15. See further, Becker-Weinberg on Art. 233.

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Art. 45

1–3

Part III. Straits used for international navigation

Cases: ICJ, Case Concerning Passage through the Great Belt (Finland v. Denmark), Order of 10 September 1992, ICJ Reports (1992), 348; ITLOS, Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), Provisional Measures, Order of 8 October 2003, ITLOS Reports (2003), 10 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Straits Subject to Article 45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. The Regime of Innocent Passage in this Context. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. The Injunction against Suspension of Innocent Passage . . . . . . . . . . . . . . . . . . . . . . . .

1 6 9 9 14 15

I. Purpose and Function While Art. 45 expands on what has been established by Art. 16 (4) of the 1958 Convention on the Territorial Sea and the Contiguous Zone (CTSCZ), it merely reflects the existing law that prevents coastal States from closing international straits by claiming adverse impact from what they perceive to be non-innocent passage by foreign ships. As has been pointed out before,1 Art. 45 is probably one of the provisions of Part III that is generally declaratory in nature, as far as is concerned at least the particular type of strait between a part of the high seas or of the exclusive economic zone (EEZ) and the territorial sea of a foreign State. 2 As has been indicated elsewhere,2 Art. 16 (4) CTSCZ, gave way at UNCLOS III to a gradual emergence of the consensus on the regime of transit passage. However, due to the compromises underlying the consensus, the text of Art. 45 had undergone certain changes before it settled into the final form that we know of today. There is, not surprisingly, a crossreference to Part II that provides for the regime of innocent passage in the territorial sea (�Arts. 17 et seq.). 3 Another question in this regard is whether Art. 45 represents customary law or is in the course of becoming such. The acceptance at the conference of the regime of transit passage was so closely linked with the extension of the territorial sea to 12 NM that the final compromise achieved at the time embodied both of those factors. The regime established under Art. 45, however, was secondary to the achievement of the compromise mentioned above, in the light of the foremost aim of Part III in establishing the new regime of transit passage. The regime now under Art. 45 has in fact seen no drastic changes to it since its embodiment in the UK proposal of 1974.3 For those straits covered by Art. 45 (1)(a), there is little difficulty in applying the nonsuspendable innocent passage as a matter of customary law. But, as regards the straits covered by Art. 45 (1)(b), doubts linger about the existence of a customary right of non-suspendable innocent passage in such straits. In this respect the opposition from the Arab States has been constant since 1958,4 and in any case, advocates for the regime of transit passage, in the run-up to UNCLOS III in the early 1970s, no longer recognised the regime embodied in Art. 16 (4) CTSCZ as reflecting what they perceived to be the general law for international straits linking parts of the high seas.5 The most that may be said at this moment is that those Arab States which have ratified or acceded to the UNCLOS probably regard Art. 45 (1)(b) as treaty-based. Yet, Egypt has made it clear, upon ratification of the UNCLOS in 1983, that: 1

1

Bing Bing Jia, The Regime of Straits in International Law (1998), 129. See further, Jia on Art. 38 MN 1. Second Committee UNCLOS III, United Kingdom: Draft Articles on the Territorial Sea and Straits, UN Doc. A/CONF.62/C.2/L.3 (1974), OR III, 183, 186 (Article 8). 4 Ali A. El-Hakim, The Middle Eastern States and the Law of the Sea (1979), 156–157; Myron H. Nordquist/ Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 396 (MN 45.7); Jia (note 1), 21–22. 5 Cf. Tullio Treves, Navigation, in: Rene ´-Jean Dupuy/Daniel Vignes (eds.), A Handbook on the New Law of the Sea, vol. II (1991), 835, 971. 2 3

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4–7

Art. 45

‘The provisions of the 1979 Peace Treaty between Egypt and Israel concerning passage through the Strait of Tiran and the Gulf of Aqaba come within the framework of the general re´gime of waters forming straits referred to in Part III of the Convention, wherein it is stipulated that the general re´gime shall not affect the legal status of waters forming straits and shall include certain obligations with regard to security and the maintenance of order in the State bordering the strait.’ 6

There is the presumption that the statement sought to align the navigation provisions of 4 the 1979 treaty with Part III, thus recognising the conventional nature of the regime established under Part III. On the other hand, reference is also made to the 1994 Peace Treaty between Jordan and Israel, which apparently provides, in respect of bilateral relations, for navigational rights close to those of transit passage: ‘International waterways will be open to all nations for unimpeded and non-suspendable freedom of navigation and overflight. The parties will respect each other’s right to navigation and overflight for access to either Party through the Straits of Tiran and the Gulf of Aqaba.’ 7

However, the weight of this recognition of navigational and overflight rights is balanced by 5 the fact that neither party is a coastal State on the Straits of Tiran, and that the treaty merely refers to mutual respect for the rights of the parties to the straits and the gulf beyond.

II. Historical Background At the UNCLOS I in 1958, the International Court of Justice (ICJ) judgment in the Corfu 6 Channel Case proved to be of great persuasiveness in moulding the rule for non-suspendable innocent passage through international straits.8 However, the discussion of Art. 16 (4) CTSCZ at UNCLOS I was unfortunately entangled with that of the right of foreign ships to innocent passage through the territorial sea, and that resulted in the removal of any reference to warships from the text of two articles that were relevant in this regard: Art. 24 and Art. 17 of the International Law Commission Draft Articles concerning the Law of the Sea.9 Further, the issue of the Israeli port city Elat in the general context of the situation in the region did not endear this rule to the Arab States.10 But the situation did not forestall the emergence of a customary right for all ships to enjoy the right of nonsuspendable innocent passage through international straits.11 After the first conference in 1958, State practice had been inconclusive with regards to the customary status of Art. 16 (4) CTSCZ.12 This inconclusiveness was further evidenced by developments during the run-up to the 7 conference. In 1973, Cyprus, Greece, Indonesia, Malaysia, Morocco, Philippines, Spain and Yemen, jointly submitted to the UN Sea-Bed Committee that: 6 Egypt’s Declaration made upon Ratification of the UNCLOS in 1983, available at: http://treaties.un.org/ Pages/ViewDetailsIII.aspx?&src=TREATY&mtdsg_no=XXI~6&chapter=21&Temp=mtdsg3&lang=en. 7 Art. 14 (3) Treaty of Peace between the Hashemite Kingdom of Jordan and the State of Israel, 26 October 1994, ILM 34 (1995), 43, also available at: http://www.kinghussein.gov.jo/peacetreaty.html. 8 Cf. Statement of Dean (United States), UNCLOS I, Summary Records of Meetings and Annexes, UN Doc. A/ CONF.13/39 (1958), OR III, 78, 79 (27th Meeting); Statement of Kusumaatmadja (Indonesia), UNCLOS I, Summary Records of Meetings and Annexes, UN Doc. A/CONF.13/39 (1958), OR III, 92, 94 (32nd Meeting); Statement of Cardoso (Portugal), UNCLOS I, Summary Records of Meetings and Annexes, UN Doc. A/ CONF.13/39 (1958), OR III, 92, 94 (32nd Meeting); Statement of Shukairi (Saudi Arabia), UNCLOS I, Summary Records of Meetings and Annexes, UN Doc. A/CONF.13/39 (1958), OR III, 95, 96 (33rd Meeting). 9 ILC, Report of the International Law Commission, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12: Art. 17 later became Art. 16 (4) of the CTSCZ, and Art. 24, regarding passage of warships through the territorial sea, was simply deleted from the draft CTSCZ. 10 Syme ´on Karagiannis, Les de´troits internationaux reliant la mer territoriale d’un E´ tat a` la haute mer ou a` la zone e´conomique exclusive d’un autre E´tat, AnDrMer XII (2007), 141, 182–183. The port is situated in the Gulf of Aqaba, which is connected to the Red Sea by the Strait of Tiran that falls within the territorial waters of Egypt, see further Jia (note 1), 20. 11 Jia (note 1), 102–108. 12 Ibid., 22. The writers’ opinions are divided: Karagiannis (note 10), 183 (footnote 163).

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8–10

Part III. Straits used for international navigation

‘(1) Navigation through the territorial sea and through straits used for international navigation should be dealt with as an entity, since the straits in question are or form part of territorial seas. (2) Regulation of navigation should establish a satisfactory balance between the particular interests of coastal States and the general interests of international maritime navigation. This is best achieved through the principle of innocent passage, which is the basis of the traditional regime for navigation through the territorial sea.’13

8

That proposal made no particular distinction between the regimes for territorial straits and for the territorial sea. It also drew back from the position established by way of Art. 16 (4) CTSCZ. All this adjustment did not, of course, meet fully the requirements of the US and the former USSR in this connection.14 Once the idea of transit passage began to take root in the negotiations, the regime of innocent passage through international straits was reduced in its applicability to two types of strait.15 The UK proposal that effected this change was incorporated in the Consensus Text of the Private Group on Straits. 16 In both those documents, there was the provision referring to the power of the coastal State to establish traffic separation schemes and sea lanes. But this latter provision was dropped from the Informal Single Negotiating Text Part II.17 Another interesting development in this process was the removal from the UK proposal of straits between a part of the high seas and the territorial sea of a foreign State from under the regime of transit passage, which was part of the original US proposal for the freedom of navigation and overflight for the purpose of transit through and over international straits.18

III. Elements 1. Straits Subject to Article 45 Two types of strait are specified under Art. 45 as falling under the regime of innocent passage as contained in the UNCLOS. The first is the type of strait that has a parallel route seaward of an island that, together with its mainland, forms the strait. The route lies in the high seas or EEZ, having similar convenience with respect to hydrographical and navigational characteristics. The second type involves straits linking a part of the high seas or EEZ and the territorial sea of a foreign State. The first type Art. 45 (1)(a) refers to Art. 38 (1), is relatively free of controversy, as far as the interpretation of the provision is concerned. But it is not so in its implementation, as shown in the case of Messina Strait, to be discussed below. 10 But the second type, in spite of its origin in Art. 16 (4) CTSCZ, may not be free of questions in application. Among them is the one that envisages a ship in passage that ends in the territorial sea of a foreign State after passing through an international strait, before it recommences, for example, the return voyage after the visit of the local port. It is recalled that the crux of a solution for this question lies in the legal status of the immediate water bodies connected by a strait.19 If this type of strait always ends in local ports of a coastal State beyond the strait that links them with the high seas in the other direction, the type may even include, it has been suggested, the narrow channels that link the Baltic Sea and the Oder 9

13 Sea-Bed Committee, Cyprus et al.: Draft Articles on Navigation Through the Territorial Sea Including Straits Used for International Navigation, UN Doc. A/AC.138/SC.II/L.18 (1973), 1. 14 Horace B. Robertson, Passage through International Straits: A Right Preserved in the Third United Nations Conference on the Law of the Sea, VJIL 20 (1980), 801, 816–817. 15 UK Draft Articles (note 3), 186 (Article 8). 16 UNCLOS III, Consensus Text of Private Group on Straits, 18 April 1975 (1975, mimeo.), reproduced in: Renate Platzo¨der (ed.), Third United Nations Conference on the Law of the Sea: Documents of the Geneva Session 1975 (1975), 204, 206 (Article 7). 17 UNCLOS III, Informal Single Negotiation Text (Part II), UN Doc. A/CONF.62/WP.8/PART II (1975), OR IV, 152 (Article 44). 18 Sea-Bed Committee, United States: Draft Articles on the Breadth of the Territorial Sea, Straits and Fisheries, UN Doc. A/AC.138/SC.II/L.4 (1971), 2 (Article II (1)). 19 See further, Jia on Art. 37 MN 6–7.

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lagoon (or Bay of Szczecin or Stettiner Haff).20 The fact that this type of strait always leads international shipping to a local port beyond the straits may enhance the importance of ports in the determination of the status of those straits.21 In this regard, there may be room for the view that Art. 45 has a role to play in respect of the Peenestrom between the Baltic and the Oder lagoon.22 In the German Democratic Republic-Poland treaty of 22 May 1989, 23 Art. 6 expressed that: ‘Navigation on the navigational routes and approaches which lead to the ports of Szczecin and Swinoujscie and which are situated within the territorial sea of the German Democratic Republic east of Ruegen island shall be governed by the generally accepted principles of the international law of the sea. No permission of the German Democratic Republic shall be required for the passage of warships and government ships flying the Polish flag.’

The wording of the article suggests that general international law would regulate the use of 11 the navigational routes in this area.24 The omission of authorization for the passage of Polish warships also suggested that the passage envisaged was that of innocent passage, since prior consent would have been required otherwise in accordance with the law of German Democratic Republic.25 In the 1990 Federal Republic of Germany-Poland treaty confirming their frontier,26 Art. 1 referred to the 1989 treaty mentioned above, but did not reaffirm the part of Art. 6 regarding navigation.27 However, it may be noted that the routes referred to above do not provide similar convenience geographically, as the S´wina channel, east to the Peenestrom and flanked solely by Polish territory, shoulders most of the shipping to the Polish ports inland. If that situation persists, the application of Art. 45 would not be required to regulate access by foreign shipping to the Polish ports. The provision, therefore, has only a potential role in respect of this particular case. A word of caution is in order. It is felt that, beyond geographical straits, waterways of mixed 12 fresh and sea waters, such as the waterway of Western Scheldt (leading to the port of Antwerp, among others) or the like, that end in a river inland do not attract the regime of international straits, let alone Art. 45 (1)(b). Instead, they are regulated by the law of rivers as a distinct category.28 It may also be recalled that the UNCLOS is not concerned with the regime of internal waters, including rivers that empty into the sea, except for the rules in relation to the delimitation of internal waters (�Art. 8).29 The landward applicability of the UNCLOS ends at the baselines defined by it. In any case, to unilaterally introduce the regime of innocent passage in this context of international fluvial waterways, including waterways that provide sole access to the open sea for the riparian State concerned, may well run counter to the basic principle of the law of rivers. This principle states that such a river belongs to all riparian States for free 20

Karagiannis (note 10), 172–174. Ibid., 182. Ibid., 213. 23 Treaty between the German Democratic Republic and the Polish People’s Republic on the Delimitation of the Sea Areas in the Oder Bay, 22 May 1989, the full text of the treaty is available at: http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/DEU-POL1989DS.PDF. Also see, Eric Franckx, Report Number 10-6 (1) and (2), in: Jonathan I. Charney/Lewis M. Alexander (eds.), International Maritime Boundaries, vol. II (1993), 2005–2028. 24 Cf. Ru ¨ diger Wolfrum, Germany and the Law of the Sea, in: Tullio Treves/Laura Pineschi (eds.), The Law of the Sea: The European Union and its Member States (1997), 199, 212. 25 UN DOALOS, Second Ordinance for the Implementation of the Law on the State Frontier of the German Democratic Republic (Frontier Ordinance), 20 December 1984, LOSB 4 (1985), 41, 42. 26 Treaty between the Federal Republic of Germany and the Republic of Poland on the confirmation of the frontier between them, 14 November 1990, the full text of the treaty is available at: http://www.un.org/Depts/los/ LEGISLATIONANDTREATIES/PDFFILES/TREATIES/DEU-POL1990CF.PDF. The territorial sea limit established in this treaty was confirmed on 11 November 1994 by the Proclamation by the Federal Republic of Germany concerning the extension of the German territorial sea: UN DOALOS, National Legislation on the Territorial Sea, the Right of Innocent Passage and the Contiguous Zone (1995), 137. 27 Cf. Władysław Czaplin ´ ski, International Legal Aspects of the Relations of Poland with Neighbouring States, AVR 36 (1998), 425, 431. 28 Philip Jessup, The Law of Territorial Waters and Maritime Jurisdiction (1927), xxxvi. 29 See also Stephen C. McCaffrey, The Law of International Watercourses (2nd edn. 2007), 27. 21 22

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navigation and other uses.30 The same, regarding the regime of internal waters, may also be said of the Baltiysk Strait, flanked by Russian territory and linking the Vistula Lagoon or Bay and the Gdan´sk Bay in the Baltic. It seems to be the common ground between Poland and Russia that the Vistula Bay comprises internal waters.31 That signifies the inapplicability of Art. 45. Due to occasional interruptions of shipping through the strait, Poland has been contemplating the excavation of a canal across the Vistula Spit, jointly owned by itself and Russia, in its part of the peninsula.32 Finally, it may be added that access to ports by foreign shipping is still not a customary right, with the coastal State in sole control in determining which of its ports are opened to international access.33 The law of the sea wisely confines juridical straits to those between larger areas of sea in which a general right or freedom of navigation and even overflight exists. 13 It may be emphasized that Art. 45 (1) seems to be exhaustive of types of strait that are open to non-suspendable innocent passage. It follows that it is not possible to relate the right of innocent passage, as provided by Art. 45, to other types of strait. The number of straits falling under this provision, however, is not fixed. In cases where the geographical situation of a strait is physically altered, like the causeway that cuts across the Strait of Johor between Malaysia and Singapore, there may be room for considering the applicability of Art. 45 to other parts of the strait, which, still open to larger areas of sea, are subject to possible land reclamation and bridge-building plans by one of the coastal States.34

2. The Regime of Innocent Passage in this Context 14

Art. 45 explicitly imposes the regime of innocent passage as contained in Part II on the two types of strait listed in its paragraph 1. The reason for the inclusion of those two types is well known.35 However, it may be stressed that the regime of innocent passage as defined in Part II is to be applied in ‘all its respects’ to the two types of strait.36 The only condition is that innocent passage through those straits may not be suspended, and it distinguishes the regime of innocent passage through international straits from that which applies in the territorial sea. The power to determine innocence or not is to be exercised chiefly by the coastal State subject to a detailed set of criteria laid down in Art. 19.37

3. The Injunction against Suspension of Innocent Passage 15

This part of Art. 45 follows verbatim the terms of Art. 16 (4) CTSCZ. The injunction contained in the article against any attempt by coastal States to suspend, temporarily or permanently, the innocent passage through an Art. 45-type international strait by foreign ships, of whatever type, has been tested in practice. Italy has legislated in the Strait of Messina since 1985 that the waterway is closed to vessels of or over 50,000 tons carrying pollutants (such as oil), chemical products or any toxic substances on board.38 For ships which intend to pass through the strait that are below that tonnage but over 6,000 in tonnage carrying crude oil, 30 Ibid., 197. Also see, Art. 5 United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses, GA Res. 51/229 of 21 May 1997, Annex. 31 Romain Yakemtchouk, Le re ´gime de la navigation a` travers le de´troit de Baltiysk, Revue du marche´ commun et de l’Union Europe´enne 467 (2003), 225, 229. 32 Karagiannis (note 10), 184, 198. 33 Cf. Louise de La Fayette, Access to Ports in International Law, IJMCL 11 (1996), 1, 4, 19, 22. 34 ITLOS, Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), Provisional Measures, Order of 8 October 2003, ITLOS Reports 2003, paras. 23 (3) (e), 106 (1) (c). 35 Satya N. Nandan/David H. Anderson, Straits Used for International Navigation: A Commentary on Part III of the United Nations Convention on the Law of the Sea, BYIL 60 (1989) 159, 196–197. 36 Ibid., 197–198. 37 Cf. Treves (note 5), 912; Ian Brownlie, Principles of Public International Law (7th edn. 2008), 187; see also Barnes on Art. 19 MN 7–9; and further Barnes on Art. 25 MN 5–8. 38 Jia (note 1), 181 (footnote 91).

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or ships over the 15,000 in tonnage, pilotage is compulsory.39 Despite the protests from the US against the 1985 legislation,40 Italy has maintained the laws in the strait, establishing a voluntary Vessel Traffic Service (VTS) for the strait in 2008. 41 It may be noted that the navigational condition of the strait allows the biggest ships to pass through without difficulty, as the watercourse is very deep, from 70 to about 1,000 metres. 42 This case shows that suitable navigational conditions do not necessarily determine the navigability of an international strait, and that local concerns with marine pollution may outweigh the navigational interests of foreign shipping. Then the issue seems to become one of the legality of prevention of the passage by specified ships with specified cargoes, which apparently implies that passage by such ships per se would not be innocent (�Art. 19). Another circumstance that may give rise to concerns in this regard is the building of bridges 16 linking the two coasts of a strait of the Art. 37-type. Italy, for instance, started to consider the construction of fixed links over Messina Strait between its mainland and the Island of Sicily in the late 1960s.43 The height of the bridge, following Italy’s notification to the IMO of the project, is estimated at no less than 64 metres above sea level. 44 That would cause problems for the passage of certain oil rigs and platforms.45 However, after the precedent of the Great Belt Bridge,46 there seems to be little difficulty for Italy to rely on international toleration of its construction work over the Messina Strait. Legally speaking, however, the paucity of passage of oil rigs and the like through a strait does not obviate the question regarding a general right of passage by all ships, including, arguably, rigs or at least the carriers of them. Given the way in which the notion of international straits was brought into life by the ICJ in the Corfu Channel Case, the limited use of a waterway may not be decisive in settling arguments with foreign governments. What the Passage through the Great Belt case shows is that Finland, as the main user State affected by Denmark’s project, has consented to a lex specialis between itself and Denmark in respect of one particular type of vessel its shipyards manufacture, 47 without touching on the general right of passage through the strait in question. The bilateral settlement of that dispute may be copied where impairment of passage is alleged under Art. 44.

39 Italian Ministry of Infrastructure and Transport, VTS Messina Straits: User Manual, December 2009, available at: www.guardiacostiera.it/servizi/documents/manualivts/manualeutentemessina_inglese.pdf. 40 US Naval War College, Excessive Maritime Claims, International Law Studies 66 (1994), 199. 41 Italian Ministry of Infrastructure and Transport (note 39), 001. 42 Ibid., 005. 43 Fabio Spadi, The Bridge on the Strait of Messina: ‘Lowering’ the Right of Innocent Passage, ICLQ 50 (2001), 411, 412. 44 Ibid., 417 (referring to IMO, Report of the Sub-Committee on Safety of Navigation, IMO Doc. NAV/35/14 of 2 February 1989). 45 A similar height for the proposed Great Belt Bridge to be built by Denmark led to a Finnish Application to the ICJ in 1991, see supra, note 47; see also Jia (note 1), 118–120. 46 The Finnish Application was withdrawn in 1992 from the ICJ after Denmark provided a 90 million kroners in payment: ICJ, Case Concerning Passage through the Great Belt (Finland v. Denmark), Order of 10 September 1992, ICJ Reports 1992, 348. The bridge or fixed link opened for rail traffic in 1997 and road traffic in 1998, with the clearance at the East Bridge at 65 metres, available at: http://www.storebaelt.dk/english (A/S Storebælt is the bridge operator). 47 The debate over the scope of vessel or ship under the law of the sea assumed prominence in the proceedings involving Finland and Denmark, with, however, no definite conclusion following the discontinuance of the case by the parties: ICJ, Case Concerning Passage through the Great Belt (Finland v. Denmark), Finland’s Memorial of 20 December 1991, paras. 444–478; Denmark’s Counter-Memorial of 18 May 1992, para. 604, both available at: http://www.icj-cij.org/docket/index.php?p1=3&p2=3&k=a5&case=86&code=fd&p3=90.

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PART IV ARCHIPELAGIC STATES Article 46 Use of terms For the purposes of this Convention: (a) ‘archipelagic State’ means a State constituted wholly by one or more archipelagos and may include other islands; (b) ‘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. Bibliography: Chittharanjan F. Amerasinghe, The Problem of Archipelagos in the International Law of the Sea, ICLQ 23 (1974), 539–575; Dale Andrew, Archipelagos and the Law of the Sea: Island Straits States or IslandStudded Sea Space?, Marine Policy 2 (1978), 46–64; Nancy Barron, Archipelagos and Archipelagic States under UNCLOS III: No Special Treatment for Hawaii, HICLR 4 (1981), 509–541; Sam Bateman, Security and the Law of the Sea in East Asia: Navigational Regimes and Exclusive Economic Zones, in: David Freestone/Richard Barnes/ David Ong (eds.), The Law of the Sea: Progress and Prospects (2006), 365–387; Kevin Baumgart/Brian Melchior, The Practice of Archipelagic States: A Study of Studies, ODIL 46 (2015), 60–80; John G. Butcher, Becoming an Archipelagic State: The Juanda Declaration of 1957 and the ‘Struggle’ to Gain International Recognition of the Archipelagic Principle, in: Robert B. Cribb/Michele Ford (eds.), Indonesia Beyond the Water’s Edge: Managing an Archipelagic State (2009), 5–48; Robin R. Churchill, The Impact of State Practice on the Jurisdictional Framework Contained in the LOS Convention, in: Alex G. Oude Elferink (ed.), Stability and Change in the Law of the Sea: The Role of the LOS Convention (2005), 91–143; Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); Barry H. Dubner, The Law of Territorial Waters of Mid-Ocean Archipelagos and Archipelagic States (1976); B. A. Hamzah, Indonesia’s Archipelagic Regime: Implications for Malaysia, Marine Policy 8 (1984), 30–43; Lawrence L. Herman, The Modern Concept of the Off-Lying Archipelago in International Law, CYIL 23 (1985), 172–200; Hiran W. Jayewardene, The Regime of Islands in International Law (1990); Philip C. Jessup, The Law of Territorial Waters and Maritime Jurisdiction (1927); Charlotte Ku, The Archipelagic States Concept and Regional Stability in Southeast Asia, CWRJIL 23 (1991), 463–478; Sophia Kopela, Dependant Archipelagos in the Law of the Sea (2013); Barbara Kwiatkowska/Etty R. Agoes, Archipelagic Waters: An Assessment of National Legislation, in: Ru¨diger Wolfrum (ed.), Law of the Sea at the Crossroads: The Continuing Search for a Universally Accepted Re´gime (1990), 107–164; J. B. McKinnon, Arctic Baselines: A Litore Usque Ad Litus, Canadian Bar Review 66 (1987), 790–817; Myres S. McDougal/William T. Burke, Public Order of the Oceans (1962); Mohamed Munavvar, Ocean States: Archipelagic Regimes in the Law of the Sea (1995); Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Daniel P. O’Connell, The International Law of the Sea, vol. I (1982); Daniel P. O’Connell, Mid-Ocean Archipelagos in International Law, BYIL 45 (1971), 1–77; Donat Pharand, Canada’s Arctic Waters in International Law (1988); John R. V. Prescott, Straight and Archipelagic Baselines, in: Gerald Blake (ed.), Maritime Boundaries and Ocean Resources (1987), 38–51; H. P. Rajan, The Legal Regime of Archipelagos, GYIL 29 (1986), 137–153; J. Ashley Roach/Robert W. Smith, Excessive Maritime Claims (3rd edn. 2012); Donald R. Rothwell/Tim Stephens, The International Law of the Sea (2nd edn. 2016); Donald R. Rothwell, The Canadian-U.S. Northwest Passage Dispute: A Reassessment, CILJ 26 (1993), 331–354; Malcolm N. Shaw, International Law (7th edn. 2014); Max Sørensen, The Territorial Sea of Archipelagos, in: Ricardo J. Alfaro (ed.), Varia Juris Gentium (1959), 315–331; Wolfgang Graf Vitzthum, Maritimes Aquitorium und Anschlusszone, in: Wolfgang Graf Vitzthum (ed.), Handbuch des Seerechts (2006), 63–159 Documents: American Institute of International Law, Project No. 10: National Domain, AJIL 20, No. 4 Suppl. (1926), 318–320; GA Res. 2340 (XXII) of 18 December 1967; ILA, Report of the 33rd Conference (1924); ILA, Report of the 34th Conference (1926); ILC, First Report on the Regime on the Territorial Sea by J. P. A. François, Special Rapporteur, UN Doc. A/CN.4/53 (1952); ILC, Second Report on the Regime of the Territorial Sea by J. P. A. François, Special Rapporteur, UN Doc. A/CN.4/61 (1953); ILC, Third Report on the Regime of the Territorial Sea by J. P. A. François, Special Rapporteur, UN Doc. A/CN.4/77 (1954); ILC, Report of the International Law Commission, UN Doc. A/2934 (1955), GAOR 7th Sess. Suppl. 9; ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9,

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12–45; UN DOALOS, Archipelagic States: Legislative History of Part IV of the United Nations Convention on the Law of the Sea (1990); UN DOALOS, Baselines: An Examination of the Relevant Provisions of the United Nations Convention on the Law of the Sea (1989); UN DOALOS, Practice of Archipelagic States (1992) Cases: ICJ, Fisheries Case (United Kingdom v. Norway), Judgment of 18 December 1951, ICJ Reports (1951), 116; ICJ, Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment of 16 March 2001, ICJ Reports (2001), 40; ICJ, Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia), Judgment of 17 December 2002, ICJ Reports (2002), 625 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘archipelagic State’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) ‘a State’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) ‘constituted wholly by one or more archipelagos’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) ‘may include other islands’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d) De facto archipelagic States? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘Archipelago’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Natural or physical elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aa) ‘group of islands’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bb) ‘parts of islands’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . cc) ‘interconnecting waters’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . dd) ‘other natural features’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Intrinsic Geographical, Economic, and Political Cohesion . . . . . . . . . . . . . . . . . . . aa) ‘closely interrelated’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bb) ‘intrinsic’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . cc) ‘geographical […] entity’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . dd) ‘economic […] entity’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ee) ‘political entity’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ff) ‘or which historically have been regarded as such’ . . . . . . . . . . . . . . . . . . . . . .

1 3 27 27 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43

I. Purpose and Function Art. 46 serves as an opening provision of Part IV of UNCLOS on archipelagic States. Its 1 paragraphs (a) and (b) provide definitions of the terms ‘archipelagic States’ and ‘archipelago’ for the purpose of all UNCLOS provisions, particularly those in Part IV.1 By providing these definitions, Art. 46 determines which States may claim the special legal 2 status assigned to archipelagic States under Part IV of UNCLOS and thus enjoy the substantial entitlements and privileges granted therein2, i. e. whether they can measure their maritime boundaries from straight ‘archipelagic baselines’3, qualify waters enclosed by such baselines ‘archipelagic waters’ (and thus benefit from the exceptional legal status 4), and finally extend outward other maritime zones, such as the territorial sea or the exclusive economic zone (EEZ) from these baselines.5 Art. 46 is the product of a long and intensive debate within international law as to whether 3 there should be a special regime for archipelagos and if so, how such a special regime should be designed and which States should be entitled to the privileges granted therein. During UNCLOS 1

Arts. 2 (1), 86, and 111 (1) also refer to ‘archipelagic States’ or ‘archipelagic waters’. To date (as at July 2016), 22 States have claimed archipelagic status, including a broad variety of countries such as Antigua and Barbuda, the Bahamas, Cape Verde, Comoros, the Dominican Republic, Fiji, Grenada, Indonesia, Jamaica, Kiribati, the Maldives, the Marshall Islands, Mauritius, Papua New Guinea, the Philippines, Saint Vincent and the Grenadines, Sao Tome and Principe, Seychelles, the Solomon Islands, Trinidad and Tobago, Tuvalu, and Vanuatu. See J. Ashley Roach/Robert W. Smith, Excessive Maritime Claims (3rd edn. 2012), 206–208; see also Donald R. Rothwell/Tim Stephens, The International Law of the Sea (2nd edn. 2016), 197–201; see also Kevin Baumgart/Brian Melchior, The Practice of Archipelagic States: A Study of Studies, ODIL 46 (2015), 60–80. 3 Art. 47 (1); see Symmons on Art. 47 MN 19–28. 4 Art. 49 (1); see Symmons on Art. 49 MN 5–9. 5 Art. 48; see Symmons on Art. 48 MN 3–4. 2

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4–5

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III negotiations, States claiming special treatment basically argued that their specific geographical, political and historical situation would justify extensive maritime claims over the waters connecting their islands. Despite some variations, in effect, most archipelagic claims aimed at turning large sea areas that qualified as high seas under the then existing international law to areas under national sovereignty. The Indonesian archipelagic claim may be seen as representative of the different archipelagic claims. On 13 December 1957 the Indonesian Government proclaimed the so called ‘Juanda [or Djuanda] Declaration’.6 The Declaration reads: ‘[…] all waters surrounding, between and connecting the islands constituting the Indonesian State, regardless of their extension and breadth, are integral parts of the territory of the Indonesian State and therefore parts of the internal or national waters which are under the exclusive sovereignty of the Indonesian State’.7

4

Since the idea of a special archipelagic regime first emerged in international law, exclusive archipelagic claims were opposed by maritime powers and seafaring nations, as they had particular military and commercial interests in the waters within and surrounding archipelagos.8 Former president of UNCLOS III, AMERISINGHE, precisely summarized such countervailing interests: ‘Other States have inclusive interests claims based on the security need in seeing that large areas of ocean and airspace are not closed to shipping and aircraft. Such maritime powers as the U.S.A. have a special interest in this kind of claim. Equally, other States have commercial interests for their merchant vessels and aircraft on the high seas. Both these interests involve the freedom of navigation, unhampered transportation and communication, whether surface, subsurface, or aerial […].’ 9

5

Accordingly, Art. 46’s main function is to make a compromise between these countervailing interests and to prevent a proliferation of archipelagic claims. To this end, it restricts the application of the archipelagic regime of Part IV to a relatively small number of States, i. e. a special type of non-coastal archipelagos (also referred to as mid-ocean, non-adjacent, off-lying, or outlying archipelagos). It particularly excludes two types of non-coastal archipelagic entities 10 which also had been discussed during UNCLOS III to be included under the new archipelagic regime. First, the reference to ‘States’ in Art. 46 (a) excludes all entities which do not fulfil this criterion, particularly those which do not have their own fully sovereign government and which are not able to independently and autonomously enter into international negotiations. Such ‘non-qualifying’ archipelagos would, for example include Canada’s Arctic Islands, the Netherlands Antilles, New Caledonia (France), the American Hawaiian Islands and Micronesia, Cook Islands and Tokelau Islands (New Zealand), the Spanish Canaries, the Danish Faroes, the Ecuadorian Galapagos, the Norwegian Svalbard, and the Portuguese Azores.11 Second, the reference to the words ‘constituted wholly by one or more archipelagos’, further restricts the scope of the archipelagic regime by excluding the so called mainland, coastal or continental 6 For a particularly informative account of the history, see John G. Butcher, Becoming an Archipelagic State: The Juanda Declaration of 1957 and the ‘Struggle’ to Gain International Recognition of the Archipelagic Principle, in: Robert B. Cribb/Michele Ford (eds.), Indonesia Beyond the Water’s Edge: Managing an Archipelagic State (2009), 5–48. 7 Reproduced in: Mohamed Munavvar, Ocean States: Archipelagic Regimes in the Law of the Sea (1995), 64. 8 Chittharanjan F. Amerasinghe, The Problem of Archipelagos in the International Law of the Sea, ICLQ 23 (1974), 539, 558–559. 9 Ibid. 10 Quite generally and in a non-juridical sense, an archipelago constitutes a group of islands, see Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 118. 11 See Barbara Kwiatkowska/Etty R. Agoes, Archipelagic Waters: An Assessment of National Legislation, in: Ru¨diger Wolfrum (ed.), Law of the Sea at the Crossroads: The Continuing Search for a Universally Accepted Re´gime (1990), 110–113; Churchill/Lowe (note 10), 120; Nancy Barron, Archipelagos and Archipelagic States under UNCLOS III: No Special Treatment for Hawaii, HICLR 4 (1981), 509–541; Rothwell/Stephens (note 2), 192–193. On the special case of Canada, see Donat Pharand, Canada’s Arctic Waters in International Law (1988), 159–180. Regarding the State practice to draw straight baselines around insular formations not constituting archipelagic States, see Sophia Kopela, Dependant Archipelagos in the Law of the Sea (2013), 112–147.

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States having off or outlying archipelagos from the archipelagic claim. Again, this excludes Denmark, Ecuador, Portugal, Spain, and Norway in regard to their respective outlying archipelagos. Besides, the latter reference also excludes the so called coastal archipelagos which lie close to the shore of mainland or continental States. Coastal archipelagos, such as Skjærgaard in Norway, the Hebrides in the UK, or the Frisian Islands in Germany, are governed by the straight baselines regime laid down in Art. 7. It has been estimated that about 35 States would qualify as archipelagic States under 6 Art. 46.12 This does not imply, however, that that many States could actually enjoy the right to draw archipelagic baselines in accordance with Art. 47. Systematically, Arts. 46 and 47 are inextricably linked: Art. 47 (1) makes clear that only an ‘archipelagic State may draw straight archipelagic baselines […]’, accordingly, States that want to proclaim straight archipelagic baselines must first meet the objective criteria contained in Art. 46. 13 As has been precisely pointed out by ROTHWELL and STEPHENS, the capacity of those States that objectively fall within the definition of Art. 46 to enjoy archipelagic rights and privileges ‘ultimately rests with the ability of a state to proclaim archipelagic baselines consistent with the provisions of Art. 47.’ 14 The right to draw straight archipelagic baselines that ‘[join] the outermost points of the outermost islands and drying reefs of the archipelago’15, is only granted where the objective conditions laid down in Art. 47 are met.16 For example, while the water to land minimum ratio of 1 to 1 excludes States that consist of one or a few large islands such as, for example, Cuba, Haiti, Japan, the UK, Singapore, Sri Lanka, Taiwan, Trinidad and Tobago, New Zealand, Cuba, Iceland, or Madagascar from drawing archipelagic baselines, the maximum ratio of 1 to 9 prevents archipelagic baselines being drawn around even the most distant islands of an archipelago.17 In order to abide by the maximum water to land ratio, States such as Fiji, Tonga, Papua New Guinea, Vanuatu, and the Seychelles only drew straight archipelagic baselines around some of their islands.18 Mauritius and the Solomon Islands in turn relied on a separate baseline system for each of their scattered island groups. 19 The wording of Art. 47, which says that ‘archipelagic States may draw […]’, indicates that 7 States are not obliged but authorized to draw archipelagic baselines. States which fall within the remit of Art. 46 thus have to actively proclaim archipelagic baselines in order to enjoy archipelagic rights. Only where archipelagic baselines have been proclaimed will provisions of Part IV of UNCLOS apply.20 In addition, in the Qatar/Bahrain Case the International Court of Justice (ICJ) implied that States who want to enjoy the right to draw archipelagic baselines have to first specifically claim the status of an archipelagic State. 21 As stated above, to date (mid 2016), 22 States have formally claimed archipelagic status. Their practice of drawing 12 John R. V. Prescott, Straight and Archipelagic Baselines, in: Gerald Blake (ed.), Maritime Boundaries and Ocean Resources (1987), 38, 46. Following this estimation: Robin R. Churchill, The Impact of State Practice on the Jurisdictional Framework Contained in the LOS Convention, in: Alex G. Oude Elferink (ed.), Stability and Change in the Law of the Sea: The Role of the LOS Convention (2005), 91, 119. 13 See Lawrence L. Herman, The Modern Concept of the Off-Lying Archipelago in International Law, CYIL 23 (1985), 172, 186. 14 Rothwell/Stephens (note 2), 193; see also Horace B. Robertson, Archipelagic States: Introduction, in Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 401, 413 (MN 46.6(b)); Munavvar correctly points out that ‘baseline provisions in Art. 47 constitute an essential element of the legal definition of archipelagos’, see Munavvar (note 7), 108. 15 Art. 47 (1). 16 Compare also Art. 47 (4) with Art. 7 (4). However, where baselines would exceed the lengths provided in Art. 47, it would not necessarily prevent a State entirely from claiming to be an archipelagic State. The respective archipelagic claim would merely be restricted to those areas which can be enclosed by baselines in accordance with Art. 47, see Robertson (note 14), 413. See further Symmons on Art. 47 MN 12–31, 48–49. 17 Prescott (note 12), 38–51; Churchill/Lowe (note 10), 121, 123. 18 Kwiatkowska/Agoes (note 11), 109. 19 Ibid., 115. 20 Robertson (note 14), 404. 21 ICJ, Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment of 16 March 2001, ICJ Reports (2001), 40, paras. 180–183 and 213–214. See interpretations by Churchill (note 12), 119; Rothwell/Stephens (note 2), 193.

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baselines, however, differs to some extent. Some State practice may not be in conformity with UNCLOS such as, for example, that of the Philippines, Papua New Guinea, and the Maldives, whose baselines do not entirely conform to Art. 47.22 It should finally be noted that today, only few States which presumably qualify as archipelagic States under Art 46 and would also be entitled to draw archipelagic baselines under Art. 47 (at least to some extent) have thus far not decided to do so. One example could be Tonga which has not claimed archipelagic status as of July 2016, though it drew several straight baselines. 23 8 Finally, the definitions laid down in Art. 46 (a) and (b) also provide legal grounds for archipelagic States’ exercise of sovereignty over archipelagic waters. 24 In contrast, such grounds differ for internal and territorial waters. This can be illustrated by taking a close look at Art. 2 (1). It states that ‘[t]he 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.’ This wording makes clear that while internal and archipelagic waters are deemed to form an integral part of a State’s territory, i. e. the land and internal and archipelagic water masses that form a single spaceunit under a State’s territorial sovereignty, the territorial sea is referred to merely as an ‘adjacent’ belt of sea in which the sovereignty of a coastal state extends. Art. 2 thus indicates that sovereignty over territorial waters is derived from and thus depends on a State’s territorial sovereignty over land, internal waters, or archipelagic waters. 25 On the other hand, while sovereignty is exercised over inland waters because they are traditionally assimilated into State territories26, Art. 46 makes clear that sovereignty over archipelagic waters is based on geographical, economic, political, or historic factors which link sea waters to the land domain.

II. Historical Background The legal situation of archipelagos in international law started to gain the international legal community’s attention in the late nineteenth and early twentieth centuries. However, until the 1951 decision of the ICJ in the Fisheries Case,27 States’ interests and academic debates concentrated mainly on the extent of and delimitation of territorial waters in cases where continental States’ coasts were scattered or had complex geographical features such as coastal archipelagos. The legal status of outlying archipelagos was only fully addressed when the Sea-Bed Committee took up its preparatory work for UNCLOS III in 1971. 28 The complex legal questions relating to the definition of archipelagic States, the drawing of archipelagic baselines, and the legal status of archipelagic waters, however, are closely connected to the historical legal discourse and developments regarding the delimitation and status of territorial waters around islands and coastal archipelagos. 10 Questions concerning the extent and delimitation of territorial waters in cases of coastal archipelagos were addressed in several meetings of private research institutes as well as at international conferences such as the Institut de Droit International (the 1888, 1927, and 9

22

Churchill/Lowe (note 10), 122–129, Kwiatkowska/Agoes (note 11), 120–136. To the author’s knowledge, Bahrain has (by July 2016) neither officially claimed archipelagic status nor drawn any straight baselines. In the dispute with Qatar, Bahrain argued, however, that it is an archipelagic state de facto, see Qatar/Bahrain Case (note 21), para. 181. 24 Art. 49 (1), (2), and (3); Hiran W. Jayewardene, The Regime of Islands in International Law (1990), 156– 172. 25 Wolfgang Graf Vitzthum, Maritimes Aquitorium und Anschlusszone, in: Wolfgang Graf Vitzthum (ed.), Handbuch des Seerechts (2006), 63, 119. 26 Malcolm N. Shaw, International Law (7th edn. 2014), 404; Graf Vitzthum (note 25), 87; Churchill/Lowe (note 10), 60. 27 ICJ, Fisheries Case (United Kingdom v. Norway), Judgment of 18 December 1951, ICJ Reports (1951), 116. 28 UN DOALOS, Archipelagic States: Legislative History of Part IV of the United Nations Convention on the Law of the Sea (1990), 1–2. 23

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1928 sessions)29, the International Law Association (in 1924 and 1926)30, the American Institute of International Law31, the Harvard Research Institute of International Law32, the 1930 Hague Codification Conference33, as well as by individual academic writers.34 During that time, the idea emerged to treat coastal archipelagos as units in order to determine the extent of the territorial waters rather than delimiting them around individual islands. Accordingly, discussions focussed on the criteria and methods for construing these units and thus on delimiting the territorial sea. For example, participants discussed the question of how far apart islands could be from each other or from the mainland and still be viewed as a whole unit.35 However, an explicit formula for treating groups of islands as units was never agreed upon at any of these meetings or conferences – not even at the 1930 Hague Conference – and the entire matter was basically left unfinished until the discussions gained new momentum in 1951 through the ICJ’s decision in the Fisheries Case. The ICJ’s 1951 decision constitutes the first really important legal step in the emergence of a 11 special concept for archipelagic States in the law of the sea. Despite the fact that the judgment primarily concerned criteria relating to the delimitation of territorial waters of coastal archipelagos, it laid down several general principles which have later become of considerable importance in the development of the archipelagic regime under UNCLOS, particularly for the existing definitions provided in Art. 46 (a) and (b). The basic issue before the Court was the legality of Norway’s system of straight baselines which connected the outer points of Norway’s coastal front – i. e. the Skjærgaard – which enclosed many indentations and fringing islands. The longest baseline was 44 miles in length and 23 baselines were longer than 10 miles. 36 Within the enclosed waters, Norway claimed exclusive fishing rights for its nationals. 37 The United Kingdom contested this approach, claiming that the length of straight baselines must not exceed 10 miles (basing their argument on an analogy with a ‘general rule’ relating to bays), and argued that it should either follow the low water mark along the coast or the special coastline for bays.38 The ICJ decided that the Norwegian approach to delimiting its territorial waters ‘was not contrary to international law’.39 In addition, regarding the application of straight baselines, it argued that ‘[w]here 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 geometric constructions.’40 Such baselines ‘[may depart] within reasonable limits […] from the physical line of the coast’.41 The Court continued to more precisely define and restrict the conditions under which such a straight baseline regime could be applied. It stated that ‘the drawing of baselines must not depart to any appreciable extent from the general direction of the coast […].[T]he real question raised in the choice of baselines is in effect whether certain areas lying within these lines are sufficiently closely linked to the land domain to be subject to the regime 29 AnnIDI 11 (1889), 136, 139; AnnIDI 33 (1927), 81; AnnIDI 34 (1928), 647; see also Munavvar (note 7), 70– 71; Daniel P. O’Connell, Mid-Ocean Archipelagos in International Law, BYIL 45 (1971), 6. 30 ILA, Report of the 33rd Conference (1924); 259; ILA, Report of the 34th Conference (1926), 40; see also Barry H. Dubner, The Law of Territorial Waters of Mid-Ocean Archipelagos and Archipelagic States (1976), 30–31. 31 American Institute of International Law, Project No. 10: National Domain, AJIL 20, No. 4 Suppl. (1926), 318, 319. 32 AJIL 23, No. 2 Suppl. (1929), 242, 276. 33 As reproduced in Dubner (note 30), 32; Munavvar (note 7), 73–75; O’Connell (note 29), 8–10. 34 Until the late 1950s academic discussions of learned writers basically mirrored the discussion held in the mentioned scientific and scholarly organisations. See, for example, Myres S. McDougal/William T. Burke, Public Order of the Oceans (1962), 409–410; Max Sørensen, The Territorial Sea of Archipelagos, in: Ricardo J. Alfaro (ed.), Varia Juris Gentium (1959), 315–331; Philip C. Jessup, The Law of Territorial Waters and Maritime Jurisdiction (1927), 457 et seq. 35 For an overview, see O’Connell (note 29), 1–22; Dubner (note 30), 28–35; Sørensen (note 34), 331. 36 Fisheries Case (note 27); Munavvar (note 7), 66. 37 Fisheries Case (note 27), 118–119. 38 Ibid., 128–129. 39 Ibid., 143. 40 Ibid., 129. 41 Ibid.

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of internal waters […]. [T]here is one consideration not to be overlooked, the scope of which extends beyond purely geographical factors: that of certain economic interests peculiar to a region, the reality and importance of which are clearly evidenced by long usage.’42

Finally, with a view to maximum length of straight baselines, the Court held ‘[i]n this connection, the practice of States does not justify the formulation of any general rules of law.’ 43 12 The ICJ’s decision fuelled an extensive debate about if and to what extent the principles acknowledged in the decision could be applied to mid-ocean archipelagos, both to independent off-lying or dependent non-coastal archipelagos of continental States. 44 It will become clear in the following that the ICJ’s decision greatly influenced the development and framing of the archipelagic State concept in international law in the years to come. In fact, the decision ignited a proliferation of claims by several States over maritime waters on the basis of straight baselines (also with a view to mid-ocean archipelagos45), and it directly influenced the work carried out by the International Law Commission (ILC) in preparing draft articles for the regulation of archipelagos by the First Conference on the Law of the Sea in Geneva in 1958 (UNCLOS I).46 13 In 1949 the ILC began to prepare for UNCLOS I. The Commission developed draft articles which were also concerned with archipelagos. Based on two earlier reports47 and the exchange of ideas in an expert hearing in 1953 in The Hague, Special Rapporteur FRANÇOIS included an Art. 12 in his Third Report on the Regime of the Territorial Sea48 in 1954 which reads as follows: ‘1. The term ‘groups of islands’ in the juridical sense, shall be determined to mean three or more islands enclosing a portion of the sea when joined by straight lines not exceeding five miles in length, except that one such line may extend to a maximum of ten miles. 2. The straight lines specified in the preceding paragraph shall be the baselines for measuring the territorial sea. Waters lying within the area bounded by such lines and the islands themselves shall be considered as inland waters. 3. A group of islands may likewise be formed by a string of islands taken together with a portion of the mainland coastline. The rules set forth in paragraphs 1 and 2 of this Article shall apply pari passu.’ 49

In the later ILC meetings the ‘ten miles’ in paragraph 1 as well as the concept of ‘groups of islands’ in particular were heavily debated. Eventually, ILC members could not agree on a draft article. The final draft submitted in 1956 only included provisions for isolated islands (then Art. 10) as well as a straight baseline regime for coastal archipelagos (then Art. 5). 50 The ILC’s commentary on Art. 10 of the final draft regarding the territorial sea of isolated islands contained the following statements: ‘The Commission had intended to follow up this article with a provision concerning groups of islands. Like the Hague Conference for the Codification of International Law of 1930, the Commission was unable to overcome the difficulties involved. The problem is singularly complicated by the different forms it takes in different archipelagos. The Commission was prevented from stating an opinion, not only by disagreement on the breadth of the territorial sea, but also by lack of technical information on the subject.’51 42

Ibid., 133. Ibid., 131. 44 Amerasinghe (note 8), 556–575; UNCLOS I, Certain Legal Aspects Concerning the Delimitation of the Territorial Waters of the Archipelagos (by Jens Evensen), UN Doc. A/CONF.13/18 (1957), OR I, 289, 300–301 (Evensen Report). 45 Jayewardene (note 24), 119–120. 46 Ibid., 120–122. 47 ILC, First Report on the Regime on the Territorial Sea by J. P. A. François, Special Rapporteur, UN Doc. A/ CN.4/53 (1952), 25; ILC, Second Report on the Regime of the Territorial Sea by J. P. A. François, Special Rapporteur, UN Doc. A/CN.4/61 (1953), 57. 48 ILC, Third Report on the Regime of the Territorial Sea by J. P. A. François, Special Rapporteur, UN Doc. A/ CN.4/77 (1954), 1. 49 Ibid., 5. 50 Munavvar (note 7), 103, para. 202. 51 ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12, 17. 43

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UNCLOS I took place in Geneva from 24 February to 29 April 1958. The Conference 14 adopted the ILC’s draft proposals as a basis of discussion. It also had available a preparatory document concerning the legal status of archipelagos in international law which had been requested by the UN Secretariat from the legal expert J ENS EVENSEN.52 In his report, EVENSEN paid considerable attention to the issue of mid-ocean archipelagos. From his analysis he concluded that a special application of the principles concerning coastal archipelagos as provided by the ICJ’s Fisheries Case to mid-ocean archipelagos would be the ‘only natural and practical solution’ to the issue of mid-ocean archipelagos. 53 He argued that a mid-ocean archipelago should be regarded as a ‘whole for the delimitation of territorial waters by drawing straight baselines from the outermost points of the archipelago – that is from the outermost points of the constituent islands, islets and rocks – and by drawing the seaward limit of the belt of marginal seas at a distance of X nautical miles outside and parallel to such baselines. Thus the archipelago viewed as a unit has a continuous area of territorial water.’54

Although States present at UNCLOS I could not eventually agree on any rules concerning 15 mid-ocean archipelagos, two countries (the Philippines and Yugoslavia) submitted original draft articles. Both proposals aimed at applying a straight baseline regime to mid-ocean archipelagos, qualifying the waters enclosed as internal waters. The Philippines proposed a new paragraph to be added to the draft article on straight baselines: ‘When islands lying off the coast are sufficiently close to one another to form a compact whole and have been historically considered collectively as a single unit, they may be taken in their totality and the method of straight baselines […] may be applied to determine their territorial sea. The baselines shall be drawn along the coast of the outermost islands, following the general configuration of the group. The water inside such lines shall be considered internal waters.’ 55

The former Yugoslavia also proposed a new paragraph aiming to apply a straight baseline regime to off-lying groups of islands: ‘The method […] of straight baselines joining appropriate points on the coast of islands facing the high seas shall be applied in the same way to groups of islands distant from the coast. The areas of sea within such lines and islands shall be considered as internal waters of the islands.’ 56

However, both proposals were withdrawn prior to being subjected to any debate.57 Basically, legal and political questions connected to a special regime for mid-ocean archipelagos were regarded as being too complex to be solved within the framework of UNCLOS I.58 In addition, the USA had expressed concern that applying a straight baseline regime to archipelagic islands would unduly restrict the freedom of the high seas. 59 Nevertheless, UNCLOS I did establish a straight baseline regime for coastal archipelagos. Art. 4 of the Geneva Convention on the Territorial Sea and the Contiguous Zone (CTSCZ) restated many principles – almost word for word – provided by the ICJ’s Fisheries Case on the conditions and methods regarding straight baselines. Art. 4 (1) CTSCZ stated that where there is a ‘fringe of islands along the coasts in its immediate vicinity, the method of straight baselines joining appropriate points may be employed […].’ Art. 4 (2) CTSCZ stated that: ‘[t]he drawing of such baselines must not depart to any appreciable extent from the general direction of the coast, and the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters.’ 52

Evensen Report (note 44). Ibid., 289. Ibid., 302. 55 UNCLOS I, Philippines: Proposal, UN Doc. A/CONF.13/C.1/L.98 (1958), OR III, 239. 56 UNCLOS I, Yugoslavia: Proposal, UN Doc. A/CONF.13/C.1/L.58 (1958), OR III, 227. 57 O’Connell (note 29), 20–21. 58 Ibid. 59 UNCLOS I, 10th Plenary Meeting (1958), OR II, 25. 53 54

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Art. 4 (4) CTSCZ stated that where the method of straight baselines is applied ‘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 a long usage.’ 16 Despite these general considerations, the specific problem of mid-ocean archipelagos was only randomly taken up at the Second United Nations Conference on the Law of the Sea, which took place in Geneva from 17 March to 27 April 1960. Though the Philippine delegation – now supported by Indonesia – spoke in favour of establishing a special midocean archipelagic regime, the topic was not further considered during the Conference. 60 17 Regarding State practice prior to UNCLOS III, many different coastal States had adopted national legal instruments to delimit the territorial seas of their coastal or mid-ocean archipelagos. Continental States which had adopted binding measures for their coastal archipelagos included, inter alia, Norway, Iceland, Denmark, Sweden, Finland, Yugoslavia, Saudi Arabia, Egypt, Cuba, the UK, Australia, and the USA.61 Continental States which had established rules regarding their outlying mid-ocean archipelagos included, inter alia, Denmark regarding the Faroes (by agreement with the UK), Norway with regard to Svalbard, Iceland with regard to some of its islands, the UK with regard to the Bermudas, and Ecuador with regard to the Galapagos (also called the Colon Archipelago).62 However, the only archipelagic States (in light of the current definition in Art. 46 (a) and (b)) which had practiced some form of unitisation of their groups of islands prior to UNCLOS III were the Philippines and Indonesia.63 18 The Philippine claim that the waters around, between, and connecting their archipelagic islands formed part of their internal waters had been introduced to the international community in 1955 and 1956 through communications to the United Nations. The Philippines had issued a Note Verbale on 7 March 1955 stating that: ‘all waters around, between and connecting different islands belonging to the Philippine archipelago, irrespective of their width or dimension, are necessary appurtenances of its land territory, forming an integral part of the national or inland water, subject to the exclusive sovereignty of the Philippines.’ 64

On 17 June 1961, the Philippines adopted the Republic Act No. 3048 (to later be amended by Republic Act No. 5446 on 18 September 1968) which defined the baselines of the territorial seas of the Philippines.65 Act No. 3048 drew baselines from the outermost points of the Philippines’ archipelagos. 79 baselines averaged 35 miles each in length; the longest line was 140 miles.66 The Preamble to Act. No. 3048 qualified the enclosed waters as ‘inland or internal waters’ under exclusive sovereignty. The Philippines received international protest from the USA, the UK, and Australia, who expressed concern about possible restrictions on the passage of their warships through archipelagic waters.67 Nevertheless, the Philippines reinforced its claim by including the following principles in Art. I of its 1973 Constitution: ‘The waters around, between and connecting the islands of the archipelago, irrespective of their breadth and dimensions, form part of the internal waters of the Philippines.’ 68 60

UNCLOS II, 14th Meeting of the Committee of the Whole, UN Doc. A/CONF.19/C.1/SR.14 (1960), OR, 92,

94.

61 Evensen Report (note 44), 295–297; see also Daniel P. O’Connell, The International Law of the Sea, vol. I (1982), 236 et seq. 62 Evensen Report (note 44), 297–299; O’Connell (note 29), 22–75. 63 One should mention, however, that one of the earliest recorded indications of some form of unitisation of islands is the Neutrality Proclamation issued by the King of the Hawaiian Islands on 16 May 1854. He claimed that ‘our neutrality is to be respected […] to the full extent of our jurisdiction’, which included ‘all the channels passing between and dividing said islands from island to island’, see Evensen Report (note 44), 299. 64 ILC, Report of the International Law Commission, UN Doc. A/2934 (1955), GAOR 7th Sess. Suppl. 9, 52–53. 65 Reproduced in: UN DOALOS, Practice of Archipelagic States (1992), 75–76. 66 Munavvar (note 7), 64. 67 O’Connell (note 29), 33–38. 68 As reproduced in Munavvar (note 7), 64. For the current Philippine sea lanes practice, see Sam Bateman, Security and the Law of the Sea in East Asia: Navigational Regimes and Exclusive Economic Zones, in: David Freestone/Richard Barnes/David Ong (eds.), The Law of the Sea: Progress and Prospects (2006), 375–377; see also Rothwell/Stephens (note 2), 197–201.

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The Philippines based its archipelagic claim on historical State practices by its former colonial 19 powers going back as far as the late nineteenth and early twentieth centuries. According to the Philippines, two treaties between Spain and the USA from 189869 and 190070 concerned with the ceding of Philippine islands recognised archipelagic claims over the Philippines’ archipelagic waters. The Philippines also argued that a treaty between the UK and the USA from 1930 71 regarding boundary delimitation between the Philippines and North Borneo was relevant to their claim. However, these arguments appear fragile. The treaties refer only to the ceding of islands from Spain to the USA or to the delimitation of borders between the Philippines and the British Malay territory of Borneo. They neither explicitly acknowledge rights to any waters around or connecting the Philippine islands nor mention the transfer of any waters.72 The Indonesian archipelagic claim was first proclaimed internationally by the Indonesian 20 Government under Prime Minister JUANDA, in the so called ‘Juanda [or Djuanda] Declaration’ on 13 December 1957.73 The Declaration reads: ‘[…] all waters surrounding, between and connecting the islands constituting the Indonesian State, regardless of their extension and breadth, are integral parts of the territory of the Indonesian State and therefore parts of the internal or national waters which are under the exclusive sovereignty of the Indonesian State. Innocent passage for foreign ships in these internal waters is granted so long as it is not prejudicial to or violates the sovereignty and security of Indonesia. The delimitation of the territorial sea (the breadth of which is 12 miles) is measured from the baselines connecting the outermost points of the islands of Indonesia […].’74

Despite international protest from States like Australia, France, the UK, Japan, the Netherlands, New Zealand, and the USA75, Indonesia adopted Act. No. 4 Concerning Indonesian Waters and implemented the declaration into national legislation on 18 February 1960. 76 The claim provides that there should be innocent passage through internal waters. This innocent passage through internal waters, which is in principle unknown to the law of the sea, was later specifically regulated in 1962 by the Indonesian regulation concerning ‘Innocent Passage by Foreign Water Vehicles within Indonesian Water’. This law subjected the right of innocent passage to laws and regulations issued by the Indonesian Government. 77 During the preparation and negotiation of UNCLOS III, the discussion and debates 21 concerning archipelagos shifted towards the specific legal status of independent outlying archipelagos. Essentially three problems had to be solved: definitional issues, the design of the baseline regime, and the legal status of archipelagic waters. The main definitional issue arose over how broadly an archipelago should be construed, particularly regarding whether it should include only single State archipelagos or whether it should also include continental States with off-lying archipelagos, such as Ecuador, Portugal, India, or Spain. Both kinds of States had hoped that through UNCLOS III they would gain access to preferential rights over sea waters in between their respective groups of islands. On the other side there were severe reservations by a majority of States – particularly the major maritime and trade powers – that 69 Treaty of Peace Between the United States of America and the Kingdom of Spain, 10 December 1898, T.S. No. 343. 70 Treaty between Spain and the Unites States for the Cession of Outlying Islands of the Philippines, 7 November 1900, T.S. No. 345. 71 Convention Regarding the Boundary between the Philippines Archipelago and the State of North Borneo, 2 January 1930, T.S. No. 856. 72 Rothwell/Stephens (note 2), 187–188; O’Connell (note 29), 26–27. These Treaties are reviewed by the ICJ in: ICJ, Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia), Judgment of 17 December 2002, ICJ Reports (2002), 625. 73 For an informative account of the history, see Butcher (note 6), 5–48. 74 Reproduced in: Munavvar (note 7), 64. 75 See Dubner (note 30), 63. 76 Reproduced in: UN DOALOS Practice of Archipelagic States (note 65), 45–53. 77 Rothwell/Stephens (note 2), 185–187 and, 197–201; Munavvar (note 7), 65. For the current Indonesian sea lanes practice, see Bateman (note 68), 374–375.

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feared that a vague or too broad definition would eventually lead to an excessive proliferation of archipelagic claims which would in turn unduly restrict third State navigation and overflight rights.78 22 Preparatory work for UNCLOS III started in 1967 when the United Nations General Assembly established the Ad Hoc Sea-Bed Committee. This committee was requested to provide a broad survey of technical, legal, and political questions concerning the seabed and the ocean floor beyond national jurisdictions.79 On 21 December 1968 the Ad Hoc SeaBed Committee was renamed Sea-Bed Committee. On 17 December 1970, by its Resolution 2750 (XXV), the General Assembly instructed the Sea-Bed Committee to act as the preparatory committee for UNCLOS III80 and specifically requested that it compile a list of subjects and issues which should be addressed at the forthcoming conference, along with draft recommendations.81 After two years of deliberation, the Sea-Bed Committee recognised the special nature of archipelagos and included them in a list of ‘Subjects and Issues’.82 The most important step in the development of the special archipelagic regime was taken by four archipelagic States in the second session of the Sea-Bed Committee in Geneva in 1973; Fiji, Indonesia, Mauritius, and the Philippines proposed the following ‘archipelagic principles’ which were largely representative of the position of archipelagic States in general at that time and which constitute an important reference point for later draft articles and negotiations under UNCLOS III: ‘1. An archipelagic State, whose component islands and other natural features form an intrinsic geographical, economic and political entity, and historically have or may have been regarded as such, may draw straight baselines connecting the outermost points of the outermost islands and drying reefs of the archipelago from which the extent of the territorial sea of the archipelagic State is or may be determined. 2. The waters within the baselines, regardless of their depth or distance from the coast, the sea-bed and the subsoil thereof, and the superjacent air space, as well as all their resources, belong to, and are subject to the sovereignty of the archipelagic State. 3. Innocent passage of foreign vessels through the waters of the archipelagic State shall be allowed in accordance with its national legislation, having regard to the existing rules of international law. Such passage shall be through sea lanes as may be designated for that purpose by the archipelagic State.’83

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Based on these principles, archipelagic States later jointly submitted a set of draft articles. 84 At the same session in Geneva, as the ‘spokesman’ for the group of maritime powers’ interests, the UK submitted draft articles which opposed the position of the archipelagic group.85 Though too long to be reproduced here, both draft proposals made clearly visible the conflicting interests of aspiring archipelagic States and the existing maritime powers. While the archipelagic principles and draft articles proposed by archipelagic States aimed to broadly treat archipelagos as units for the purpose of defining baselines and establishing a special regime for the waters enclosed by them, the UK’s draft articles aimed at providing objective criteria by introducing a water-to-land ratio as well as a maximum length for baselines to limit as far as possible the exclusive claims of archipelagic States concerning archipelagic waters. The core issue was about passage rights – while maritime and neighbouring States wanted free and unrestricted rights of navigation, overflight, and communication, archipela78 See, inter alia, Dale Andrew, Archipelagos and the Law of the Sea: Island Straits States or Island-Studded Sea Space?, Marine Policy 2 (1978), 46–64; see also Rothwell/Stephens (note 2), 189–191. 79 GA Res. 2340 (XXII) of 18 December 1967. 80 UN DOALOS Archipelagic States Study (note 28), 3. 81 Ibid. 82 Munavvar (note 7), 86–87. 83 Sea-Bed Committee, Archipelagic Principles as Proposed by the Delegations of Fiji, Indonesia, Mauritius and Philippines, UN Doc. A/AC.138/SC.II/L.15 (1973), cited in: GAOR 28th Sess. Suppl. 21 (A/9021), vol. V, 3. 84 Sea-Bed Committee, Fiji et al.: Draft Articles on Archipelagos, UN Doc. A/AC.138/SC.II/L.48 (1973), cited in: GAOR 28th Sess. Suppl. 21 (A/9021-V), 8. 85 Sea-Bed Committee, United States of America: Draft Articles for a Chapter on Marine Scientific Research, UN Doc. A/AC.138/SC.III/L.44 (1973), cited in: GAOR 28th Sess. Suppl. 21 (A/9021), vol. I, 107.

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gic States instead wanted the right to have control over such passages in order to safeguard their national economic and security interests. The issue was not successfully resolved in the Sea-Bed Committee but instead was left for further debate until UNCLOS III. During UNCLOS III, arguments regarding the content and form of the archipelagic regime 24 resembled those already visible in the Sea-Bed Committee. However, some additional proposals were made during the eleven sessions and the archipelagic concept was finally adopted in its present form as a principle of international law. In the Second Session of UNCLOS III (the Caracas Meeting, taking place from 20 June to 29 August 1974), archipelagic claims were considered with sympathy from many States, particularly developing countries. 86 In that session archipelagic States submitted draft articles which resembled to a large extent those proposed earlier in the Sea-Bed Commission. Paragraphs 2 and 3 in particular came very close to the later definition included in Art. 46 (a) and (b) of UNCLOS. The draft proposal at that time stated: ‘1. These articles apply only to archipelagic States. 2. An archipelagic State is a State constituted wholly by one or more archipelagos and may include other islands. 3. For the purpose of these articles an archipelago is a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which have historically been regarded as such.’87

Additional articles stated that the straight baselines should join the ‘outermost points of the 25 outermost islands and drying reefs of the archipelago’.88 The definition and the baseline provisions were widely felt to either neglect continental or neighbouring States’ interests or be too broad and unclear in the sense that they did not include any limits to the overall length of baselines and possible land-water ratios. Accordingly, several counter proposals were made by other countries, all of them proposing a more limited scope to the definitions and the length of the baselines, thereby increasing the recognition of maritime, military, and neighbouring States’ interests and rights. For example, a proposal submitted by Canada, Chile, Iceland, India, Indonesia, Mauritius, Mexico, New Zealand, and Norway rephrased the definitions suggested by the archipelagic States to allow mainland States to apply the archipelagic baseline regime to their dependent off-lying archipelagos.89 This was supported in several statements by countries like Ecuador, Portugal, Peru, Spain, and Argentina, which basically argued that single State archipelagos and the outlying archipelagos of continental States should not be treated differently in international law.90 The Bahamas submitted its own proposal which provided a special baseline regime which took its special case into consideration, particularly its shallow banks.91 Countries like Thailand and Malaysia argued that an emerging archipelagic regime should not restrict the exploitation and communication interests of neighbouring States. 92 Other nations, like the UK, France, and Japan, argued that archipelagic claims should not unduly hinder the freedom of the sea and air navigation and that there was a need for a clear 86 See the different national statements as reproduced in: UN DOALOS Archipelagic States Study (note 28), 20–29. 87 Second Committee UNCLOS III, Fiji et al.: Draft Articles Relating to Archipelagic States, UN Doc. A/ CONF.62/C.2/L.49 (1974), OR III, 226. The phrases ‘including parts of islands’ and ‘interconnecting waters’ were taken over from the proposal made by Canada, Chile, Iceland, India, Indonesia, Mauritius, Mexico, New Zealand and Norway, UNCLOS III, Canada et al.: Working Paper, UN Doc. A/CONF.62/L.4 (1974), OR III, 81, 82. 88 See Fiji et al.: Draft Articles Relating to Archipelagic States (note 87), Art. 2 (1); UN DOALOS Archipelagic States Study (note 28), 20–29. 89 UN DOALOS Archipelagic States Study (note 28), 20–29. 90 See statements made by these countries during UNCLOS III, reproduced in: UN DOALOS Archipelagic States Study (note 28) 106, 39–64. 91 Second Committee UNCLOS III, Bahamas: Draft Articles on Archipelagic States, UN Doc. A.CONF.62/C.2/ L.70 (1974), OR III, 236. 92 Second Committee UNCLOS III, Thailand: Draft Articles on Archipelagos, UN Doc. A/CONF.62/C.2/L.63 (1974), OR III, 233.

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definition to proactively counteract a proliferation of claims. Japan supported the UK’s approach already adopted in the Sea-Bed Committee by underlining that a clarification of the definition should be achieved by introducing objective criteria such as limiting water to land ratios and the maximum permissible length of baselines.93 Three things became clear towards the end of the Second Session: (1) the archipelagic principle was acceptable to the majority of States present at UNCLOS III, (2) a clearer definition of an ‘archipelagic State’ would be necessary, and (3) a decision would have to be taken as to whether continental States would be able to claim archipelagic status. 26 Taking draft articles proposed by the Bahamas and Indonesia into account, the Chairmen of the Third Session (held in Geneva from 17 March to 9 May 1975) wrote up a first Informal Single Negotiation Text.94 The scope of the archipelagic definition became clearer because the draft provisions on baselines included an objective limit. Art. 118 of that informal draft read: ‘1. An archipelagic State may draw straight baselines […] provided that such baselines enclose the main islands and an area in which the ratio of the area of water to the area of the land, including atolls, is between one to one and nine to one. 2. The length of such baselines shall not exceed 80 nautical miles, except that up to … percent of the total number of baselines enclosing an archipelago may exceed that length, up to a maximum length of 125 nautical miles.’95

However, the Third Session’s proposal still included a provision on oceanic archipelagos belonging to continental States,96 leaving it somewhat open whether the emerging archipelagic regime would also be applicable to them. It was only after the Third Session that the course of the development of the archipelagic regime was decided. 97 During these (partly informal) negotiations it was also agreed that eventually the concept of archipelagic State would not apply to archipelagos belonging to continental States.98 During the Fourth Session in New York from 15 March to 7 May 1976, another Revised Single Negotiating Text (RSNT) was prepared,99 taking into account several informal submissions as well as one formal submission (the latter was put forward by Malaysia and concerned existing rights of neighbouring States in archipelagic waters).100 The RSNT specifically referenced the paragraph concerning the possible length of baselines. According to then Art. 119 (2), the length of such baselines shall ‘[…] not exceed 80 nautical miles, except up to one per cent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles.’101 The Fifth Session took place in New York from 2 August to 17 August 1976 and did not bring about any changes to the proposed article. In Sixth Session, also held in New York from 23 May to 15 July 1977, the paragraph on baseline limitations was once again amended; this time, however, it reached the form and content later found in UNCLOS.102 Later sessions did not take up in substance the definition of archipelagos and the baseline regime, i. e. only minor amendments were introduced in sessions seven to eleven which did not change the overall course developed in sessions four 93

Second Committee UNCLOS III, 36th Meeting, UN Doc. A/CONF.62/C.2/SR.36 (1974), OR II, 260, 261. UNCLOS III, Informal Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/PART II (1975), OR IV, 152. 95 Ibid., 155. 96 Ibid., 169. 97 Robertson (note 14), 403. 98 Ibid. 99 UNCLOS III, Revised Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/REV.1/PART II (1976), OR V, 151. 100 Fiji et al.: Draft Articles Relating to Archipelagic States (note 87), 226. States arguing against the application of the archipelagic principle to continental States’ outlying archipelagos included Indonesia, Japan, Bulgaria, Fiji, the Philippines, Thailand, Burma, the USSR, the German Democratic Republic, Poland, Mauritius, Algeria, and Turkey; see Robertson (note 14), 410–411. 101 RSNT Part II (note 99), 171. 102 UNCLOS III, Informal Composite Negotiating Text, UN Doc. A/CONF.62/WP.10 (1977), OR VIII, 6 et seq. 94

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to six.103 At the end of the Conference, several States claimed the status of archipelagic States. These States included the Bahamas, Cape Verde, Fiji, the Netherlands Antilles, Papua New Guinea, the Philippines, and the Solomon Islands.104

III. Elements 1. ‘archipelagic State’ a) ‘a State’. According to Art. 46 (a), only ‘States’ qualify as those entities under interna- 27 tional law which may claim archipelagic rights under UNCLOS. The most widely acknowledged general formulations of the criteria of statehood in international law are included in Art. 1 of the Montevideo Convention of Rights and Duties of States of 1933. Accordingly, a State should have (1) a permanent population, (2) a defined territory, (3) a government, and (4) the capacity to enter into international relations with other States. 105 The reference to ‘States’ in Art. 46 (a) thus serves the purpose of preventing an excessive proliferation of archipelagic claims by excluding all entities which do not fulfil this criterion, particularly those which do not have their own fully sovereign government and which are not able to independently and autonomously enter into international negotiations.106 Such ‘non-qualifying’ archipelagos would, for example include Canada’s Arctic Islands, the Netherlands Antilles, New Caledonia (France), the American Hawaiian Islands and Micronesia, Cook Islands and Tokelau Islands (New Zealand), the Spanish Canaries, the Danish Faroes, the Ecuadorian Galapagos, the Norwegian Svalbard, and the Portuguese Azores.107 It must be noted, however, that some continental States have nevertheless drawn some straight baselines (not necessarily archipelagic baselines in the sense of Art. 47) around their off-lying archipelagos such as, for example, the Faroes, the Galapagos, the Azores, the Canadian Arctic Islands, and some of the Canary Islands.108 Such claims have been accepted by many States and, arguably, may to that extent be regarded as valid under international customary law.109 b) ‘constituted wholly by one or more archipelagos’. The definition in Art. 46 (a) requires 28 that an archipelagic State is ‘constituted wholly by one or more archipelagos’, i. e. a group of islands as specified by the definition laid down in Art. 46 (b).110 This specific requirement complements and develops the above criterion that provides that only ‘States’ may claim archipelagic status. It excludes coastal or continental States having off- or outlying archipelagos from the archipelagic claim. Again, this excludes, for example, Denmark, Ecuador, Portugal, Spain, and Norway in regard to their respective outlying archipelagos. In addition, it makes clear that States consisting of two or more archipelagos, for example Papua New Guinea (one 103

UN DOALOS Archipelagic States Study (note 28), 96–115. As indicated in statements and proclamations made at the Eleventh Session of UNCLOS III, UN DOALOS Archipelagic States Study (note 28), 106–115; see also Robertson (note 14), 403; regarding State practice after UNCLOS, see generally UN DOALOS Practice of Archipelagic States (note 65). 105 For more, see Shaw (note 26), 143–162. 106 During UNCLOS III, Canada, Chile, Iceland, India, Indonesia, Mauritius, Mexico, New Zealand, and Norway rephrased the definitions suggested by the archipelagic States to allow mainland States to apply the archipelagic baseline regime to their dependent off-lying archipelagos, see Canada et al.: Working Paper (note 87). 107 See Kwiatkowska/Agoes (note 11), 110–113, Churchill/Lowe (note 10), 120; Barron (note 11), 509–541; Rothwell/Stephens (note 2), 192–193. On the special case of Canada see Donat Pharand, Canada’s Arctic Waters in International Law (1988), 159–180. 108 Churchill/Lowe (note 10), 120–121. Regarding Canadian aspirations to draw straight baselines around their arctic islands see J. B. McKinnon, Arctic Baselines: A Litore Usque Ad Litus, Canadian Bar Review 66 (1987), 790–817; see also Donald R. Rothwell, The Canadian-U.S. Northwest Passage Dispute: A Reassessment, CILJ 26 (1993), 331–354; Kopela (note 11), 112–147. 109 Protest has been filed by the USA in response to the Faroes’ and Galapagos’ practices of drawing straight baselines, see Churchill/Lowe (note 10), 121; see also Roach/Smith (note 2), 112–117 and 216–220; see also Kwiatkowska/Agoes (note 11), 120–135; see also Baumgart/Melchior (note 2), 60–80. 110 See infra, MN 29. 104

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main and two other archipelagos), qualify in their entirety as an archipelagic States 111 – not only those States which consist of one archipelago such as Indonesia or the Philippines. 29

c) ‘may include other islands’. The term ‘other islands’ was included to reflect the interests of archipelagic States which also consist of islands lying far away from their geographical centre such as Fiji, with its two remote islands of Ceva-i-Ra (also referred to as Theva-i-Ra) and Rotuma.112 Though these States may qualify as archipelagic States, their remote islands are not necessarily enclosed by the archipelagic baselines drawn up in accordance with Art. 47. Where this is the case, such islands simply have their own territorial sea and other maritime zones. 113

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d) De facto archipelagic States? With regard to the question of which States actually qualify as archipelagic States under Art. 46 (a), one thing should be noted. From the wording of the Art. 46 (a), it remains somewhat unclear whether States which do not consider themselves to be archipelagic States (e. g. Japan, New Zealand, or the UK), but which are in principle likely to fall within the definition of Art. 46 (a) actually automatically qualify as archipelagic States. 114 Two arguments speak against such a qualification. First, as stated above archipelagic States definitely have a choice as to whether they draw archipelagic baselines and thus if and to what extent they claim their archipelagic rights within the limits of Art. 47. In addition, there is an indication in the ICJ’s decision in the Qatar/Bahrain Case115 that States need to claim their archipelagic status internationally before they can draw such archipelagic baselines. The ICJ stated: ‘213. The fact that a State considers itself a multiple-island State or a de facto archipelagic State does not allow it to deviate from the normal rules for the determination of baselines unless the relevant conditions are met. […] 214. In such a situation, the 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 of the Sea, which is not true of Bahrain in this case.’116

As stated above, to this day, 22 States have claimed archipelagic status. 117

2. ‘Archipelago’ 31

Every archipelago which constitutes part or the whole of an archipelagic State must fall within the remit of the legal definition of an archipelago provided in Art. 46 (b). This paragraph qualifies ‘a group of islands, including parts of islands, interconnecting waters and other natural features’ as an archipelago where one of two requirements are met: either (1) they are so interrelated that they form an ‘intrinsic geographical, economic and political entity’, or (b) they ‘historically have been regarded as such’. It should be noted that the content of some of the criteria laid down in Art. 46 (b) remains somewhat vague. However, when viewed in combination with the criteria in Art. 46 (a) and the objective criteria concerning baselines in Art. 47, the overall definition of an archipelago gains shape.

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a) Natural or physical elements. The natural or physical elements of the definition of ‘archipelago’ include ‘a group of islands, including parts of islands’, ‘interconnecting waters’, and other ‘natural features’.

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aa) ‘group of islands’. Art. 121 defines an island as a ‘naturally formed area of land, surrounded by water, which is above water at high tide’. But how many islands are required 111

Munavvar (note 7), 126. Ibid. Jayewardene (note 24), 142. 114 Churchill/Lowe (note 10), 121; Munavvar (note 7), 127. These countries are likely prevented from drawing archipelagic baselines in accordance with Art. 47, i. e. none of them meets the required water-land ratio, Rothwell/ Stephens (note 2), 194. 115 Qatar/Bahrain Case (note 21). 116 Ibid., paras. 213–214. 117 See supra, note 2. 112 113

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before they can be understood as ‘a group of islands’ according to Art. 46 (b)? As stated above, ILC’s Special Rapporteur FRANÇOIS proposed in his draft articles on archipelagos in the Third Report on the Regime of the Territorial Sea in 1954 that a group of islands should be composed of ‘three or more islands’.118 This approach was supported by the UK during UNCLOS III.119 However, proposals submitted by the archipelagic States which finally gave shape to the current definition under UNCLOS avoided numerical criteria. Accordingly, the view that even two islands can be regarded as a group is supported here.120 It had been suggested that the phrase ‘group of islands’ functions to exclude remote islands which do not form an integral part of the archipelago.121 However, the term ‘group’ does not necessarily indicate how far apart islands can be and still be considered a group. Accordingly, the issue of islands remote from the centre of archipelagos should be settled by more objective criteria such as the baseline regime.122 bb) ‘parts of islands’. These words provide that a State can be considered an archipelagic 34 State even if it shares an island, i. e. not all parts of an island belonging to an archipelago have to be a part of the archipelagic state. This term had not been included in the early draft of archipelagic States submitted to the Sea-Bed Committee in 1973, but was later included at the second session of UNCLOS III in response to the draft proposal submitted by Canada, Chile, Iceland, India, Indonesia, Mauritius, Mexico, New Zealand and Norway. 123 These additional words aimed at ‘taking into account the political and geographical realities of archipelagic States’.124 Examples include the island of Borneo, which is part of Indonesia, Malaysia, and Brunei, as well as the island of New Guinea, which is shared between Indonesia and New Guinea.125 cc) ‘interconnecting waters’. This term relates to the waters surrounding the islands. These 35 words had been introduced to the definition to emphasise the ‘unifying function’ of the waters.126 In that sense, the inclusion of the words underscores the unification of archipelagic islands and waters which is based on geographical, economic, and political factors (or historic factors, as per Art. 46 (b)). dd) ‘other natural features’. The scope of the terms ‘other natural features’ remains 36 somewhat unclear. They are not explicitly defined in UNCLOS. HERMAN has argued correctly that it would be ‘safe to conclude that other natural features constitute something less, or at least, other than islands’ because UNCLOS does provide a definition of islands in Art. 121. 127 UNCLOS does refer to such lesser features in relation to the drawing of baselines where there are reefs (�Art. 6), low-tide elevations (� Art. 13), or archipelagos (� Art. 47 (1), (4) and (7)). UNCLOS refers to ‘[fringing or drying] reefs’, ‘atolls’, and ‘low-tide elevations’. Of these terms, only ‘low-tide elevations’ are defined under UNCLOS. According to Art. 13, 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’.128 The terms reefs, fringing reefs, and atolls have been explained in more detail in a study on baselines prepared by the UN Office for Ocean Affairs and the Law of the Sea.129 According to that study, a reef may be defined as ‘a mass of rock or 118

See supra, MN 12. Fiji et al.: Draft Articles Relating to Archipelagic States (note 87), 226. 120 See also Jayewardene (note 24), 136; Munavvar (note 7), 111. 121 Jayewardene (note 24), 136. 122 Munavvar (note 7), 111 presents a similar argument. 123 UN DOALOS Archipelagic States Study (note 28), 20–29. 124 Second Committee 36th Meeting (note 96). 125 Rothwell/Stephens (note 2), 192; B. A. Hamzah, Indonesia’s Archipelagic Regime: Implications for Malaysia, Marine Policy 8 (1984), 30–43; Charlotte Ku, The Archipelagic States Concept and Regional Stability in Southeast Asia, CWRJIL 23 (1991), 463–478. 126 Second Committee 36th Meeting (note 96). 127 Herman (note 13), 188; Munavvar follows him on this point, see Munavvar (note 7), 111. 128 See further Symmons on Art. 13 MN 11–18. 129 UN DOALOS, Baselines: An Examination of the Relevant Provisions of the United Nations Convention on the Law of the Sea (1989), 47. 119

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coral which either reaches close to the sea surface or is exposed at low tide’. 130 However, where UNCLOS refers to ‘drying reefs’, it indicates that it distinguishes between reefs which are submerged all the time and those which emerge at least sometimes, i. e. those reefs which may fall dry at low tide.131 A fringing reef is a reef ‘attached directly to the shore or continental land mass, or located in their immediate vicinity’. Finally, according to that study an atoll is ‘a ringshaped reef with or without an island situated on it surrounded by the open sea, that encloses or nearly encloses a lagoon’. Another special case of a ‘natural feature’ which appears to be included in the definition of archipelago is ‘waters lying within the fringing reefs of islands and atolls, including that part of a steep-sided oceanic plateau which is enclosed or nearly enclosed by chain of limestone islands and drying reefs lying on the perimeter of the plateau’.132 These submerged areas have been included into Art. 47 for the purpose of determining the land-water ratio under Art. 47 (1) and to pay heed to the special situation of the Bahamian Banks. 133 The Bahamas argued that the inclusion was justified since these areas have historically been associated with the Bahamas, and that they are immoveable and non-navigable. 134 37

b) Intrinsic Geographical, Economic, and Political Cohesion. According to Art. 47 (b), the above described natural and physical elements of the archipelago must be ‘closely interrelated’ enough so as to ‘form an intrinsic geographical, economic and political entity (or which historically have been regarded as such)’. It thus provides the legal criteria which must connect the natural features constituting an archipelago (‘entity test’). 135

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aa) ‘closely interrelated’. This criterion contributes to legally defining the relationship between islands, waters and natural features. It requires that the connecting factor for islands, waters and other natural features to qualify as intrinsic geographical, economic and political entities is a close interrelation. However, it is not entirely clear from the wording if the term ‘closely interrelated’ aims at providing a general specification of the three criteria ‘intrinsic geographical, economic and political entity’, or if the words are merely meant to give an indication of the degree of interrelatedness which is inherent to ‘geographic, economic and political entities’. The former interpretation seems more likely. It was argued by an Indonesian delegate in the Sea-Bed Committee, i. e. a representative of one of the archipelagic States which had substantially contributed to the development of the definition, that the terms ‘closely interrelated’ have a specific meaning at least with regard to the geographical criterion. Taking into account an early draft of the article, he stated that ‘[t]he words ‘closely interrelated’ were important; isolated islands in the middle of nowhere could not be regarded as forming an archipelago with other isolated islands.’136

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bb) ‘intrinsic’. According to Art. 47 (b), the elements of an archipelago must ‘form an intrinsic geographical, economic and political entity’. It is not entirely clear why the term ‘intrinsic’ was included by archipelagic States in their draft articles in the Sea-Bed Committee and at UNCLOS. From the perspective of the term’s general non-juridical meaning, i. e. ‘belonging to the thing, inherent, essential’137, it does not clearly add any content to the definition. However, HERMAN has correctly argued that this criterion may be regarded as unmet in cases where the political or economic connection has been established or been upheld artificially. For example, an entity might not be regarded as having an intrinsic unity if remote islands have been very recently brought under administrative control of the State claiming archipelagic status, or if the economic unity is mainly induced by State subsidies. 138 130

Ibid. Munavvar (note 7), 112. 132 Art. 47 (7). 133 See Symmons on Art. 47 MN 49. 134 Second Committee 36th Meeting (note 96). 135 Herman (note 13), 179. 136 H. P. Rajan, The Legal Regime of Archipelagos, GYIL 29 (1986), 137, 145. 137 Herman (note 13), 179. 138 Ibid., 180. 131

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cc) ‘geographical […] entity’. Based on the above review of historical development it is 40 clear that geographical arguments provide the starting point for any archipelagic claim. The ICJ in particular depended on geographical arguments, reasoning that the drawing of baselines around coastal archipelagos ‘must not depart to any appreciable extent from the general direction of the coast’.139 The current definition under Art. 47 (b) requires that islands, waters and other natural features are so closely interrelated that they form a geographic entity. This introduces, again, the question of how far the distance between the islands should be.140 The two terms ‘closely interrelated’ and ‘intrinsic geographical’ entity point to factors of propinquity and adjacency.141 However, the content of this criterion is still too vague, as evidenced by the fact that much of the debate in the development of the archipelagic concept had circled around this issue. In the end though, this is not imperative since Art. 47 basically defines the limits as to how far apart islands of an archipelagic state can be by defining the maximum lengths of baselines as well as the water-land ratio. 142 dd) ‘economic […] entity’. The inclusion of this phrase indicates that there needs to be an 41 economic relationship between the islands as well as between the islands and the interconnecting waters to justify the linking of archipelagic waters to the land domain. 143 However, it has been rightly pointed out by JAYEWARDENE that no specific objective content can be attributed to the economic criterion in Art. 46 (b) since almost ‘any archipelagic entity may point to economic reasons for unity’.144 Accordingly, the economic criterion would be relative in its application and assumes a subjective character. 145 Relativity of the economic relationship between land and water was already recognised in Fisheries Case when the ICJ acknowledged that economic considerations must be relevant to the drawing of straight archipelagic baselines, stating that ‘[…] there is one consideration not to be overlooked, the scope of which extends beyond purely geographical factors: that of certain economic interests peculiar to a region, the reality and importance of which are clearly evidenced by long usage.’146

Against this background, it is argued here that extent of use of the interconnecting waters for various purposes, the dependency of the islanders on the waters, and the use of its resources, as well as the exercise of those interests for some time, provide indications of the interrelation required for the economic entity test under Art. 46 (b). 147 ee) ‘political entity’. The group of islands, the interconnecting waters and other natural 42 features must be closely interrelated enough so as to form an intrinsic political entity. There is a wide spectrum of political entities imaginable, ranging from sovereign to federal States, and from autonomous territories to dependencies of States. Art. 46 (b) does not, however, contain any explicit restrictions as to whether this political entity must be a single sovereign State.148 This appears to also be valid from a systematic point of view. Defining more closely the term ‘archipelago’, i. e. an element of the definition of ‘archipelagic State’ as laid down in Art. 46 (a), by, again, requiring a group of islands to constitute a State would appear circular. Arguably, it could also be concluded e contrario that the reference to the term ‘State’ under paragraph (a) implies that the lack of a reference in paragraph (b) was intended to emphasise that a political entity is something different than a State.

139

Fisheries Case (note 27), 133. Munavvar (note 7), 113. 141 Jayewardene (note 24), 138. 142 Munavvar (note 7), 114. 143 Ibid. 144 Jayewardene (note 24), 139. 145 Ibid. 146 See Fisheries Case (note 27), 133 (emphasis added). 147 Rajan (note 136), 146; Munavvar (note 7), 114; Amerasinghe (note 8), 565. 148 Munavvar (note 7), 114; Jayewardene (note 24), 139; for a different opinion, see Rajan (note 136), 146. 140

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ff) ‘or which historically have been regarded as such’. The historical criterion is designed as an alternative criterion, not a complementary one. Accordingly, a group of islands, interconnecting waters and other natural features may be considered an archipelago merely on a historical basis. However, given that those States which have based their archipelagic claims on historical grounds (primarily Tonga and the Philippines), also qualify as intrinsic, geographic, economic and political entities, the purpose and function as well as the practical relevance of this alternative criterion remains somewhat unclear. 149 In addition, since particularly the economic and political interrelatedness of groups of islands and waters must – to a large extent – be supported by historical arguments (on the economic uses, dependencies, and application of political power over sea areas), the design of the historical criterion as an alternative one appears somewhat strange. This may, however, be attributed to the then still unclear legal situation at UNCLOS III.

Article 47 Archipelagic baselines 1. An archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which 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. 2. The length of such baselines shall not exceed 100 nautical miles, except that up to 3 per cent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles. 3. The drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago. 4. Such 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. 5. The system of such baselines shall not be applied by an archipelagic State in such a manner as to cut off from the high seas or the exclusive economic zone the territorial sea of another State. 6. 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. 7. For the purpose of computing the ratio of water to land under paragraph l, land areas may include waters lying within the fringing reefs of islands and atolls, including that part of a steep-sided oceanic plateau which is enclosed or nearly enclosed by a chain of limestone islands and drying reefs lying on the perimeter of the plateau. 8. The baselines drawn in accordance with this article 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. 9. The archipelagic 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 United Nations. Bibliography: Etty R. Agoes, Current Issues of Marine and Coastal Affairs in Indonesia, IJMCL 12 (1997), 201– 224; Dale Andrews, Archipelagos and the Law of the Sea: Island Straits States or Island-Studded Sea Space, Marine Policy 2 (1978), 46–64; I Made Andi Arsana, Indonesia’s Archipelagic Baselines (2009), available at: http:/ 149

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Munavvar (note 7), 115; Jayewardene (note 24), 139.

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geoboundaries.wordpress.com/2009/03/13/indonesias-archipelagic-baseline; Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); Robin R. Churchill, The Impact of State Practice on the Jurisdictional Framework Contained within the LOS Convention: A Commentary, in: Alex G. Oude Elferink (ed.), Stability and Change in the Law of the Sea: The Role of the LOS Convention (2005), 91–144; Gerald Fitzmaurice, Some Results of the Geneva Convention the Law of the of the Sea, ICLQ 8 (1959), 73–121; Marcel Hendrapati, Global Warming Impact Towards the Indonesian Archipelagic Baselines (2011), available at: http://repository.unhas.ac.id/handle/123456789/624; Robert Hodgson/Robert Smith, The Informal Single Negotiating Text: A Geographical Perspective, ODIL 3 (1976), 225–259; Hiran W. Jayewardene, The Regime of Islands in International Law (1989); Sophia Kopela, 2007 Archipelagic Legislation of the Dominican Republic: An Assessment, IJMCL 24 (2009), 502– 533; Sophia Kopela, Dependent Archipelagoes in the Law of the Sea (2013); Sora Lokita, The Role of the Archipelagic Baselines in Maritime Delimitation (2010), available at: http://www.un.org/depts/los/nippon/unnff_programme_home/fellows_pages/fellows_papers/lokita_0910_indonesia.pdf; Muhammad Munavvar, Ocean States: Archipelagic Regimes in the Law of the Sea (1995); Hong Nong/Li Jianwei/Chen Pingping, The Concept of Archipelagic State and the |South China Sea, State Practice and Implication, China Ocean Law Review (2013), 209; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Daniel P. O’Connell, The International Law of the Sea, vol. I (1982); Tri Patmasari/Sobar Sutsina/Chaerul Hafidin, The Indonesian Archipelagic Baselines: Technical and Legal Issues and the Changing of Environment (2008), available at: http://www.gmat.unsw.edu.au/ablos/ABLOS08Folder/ Session6-Paper2-Patmasari.pdf; John R. V. Prescott, Straight and Archipelagic Baselines, in: Gerald Blake (ed.), Maritime Boundaries (1994), 38–51; John. R. V. Prescott/Clive Schofield, The Maritime Political Boundaries of the World (2nd edn. 2005); J. Ashley Roach/Robert Smith, United States Responses to Excessive Maritime Claims (2nd edn. 1996); Clive Schofield/I Made Andi Arsana, Closing the Loop: Indonesia’s Revised Archipelagic Baseline System: Commentary, Australian JMOA 1 (2009), 57–62; Didik M. Sodik, The Indonesian Legal Framework on Baselines: Archipelagic Passage and Innocent Passage, ODIL 43 (2012), 330–341; Sobar Sutisna/ Sora Lokita, The Fact is: Some Contentious Issues Still Do Matter (2010), available at: http://www.gmat.unsw. edu.au/ablos/ABLOS10Folder/S1P3-P.pdf; Clive R. Symmons, The Maritime Zones of Islands in International Law (1979); Clive R. Symmons/Michael Reed, Baseline Publicity and Charting Requirements: An Overlooked Issue in the Law of the Sea, ODIL 41 (2010), 77–111; Yoshifumi Tanaka, Reflections on Maritime Delimitation in the Qatar/Bahrain Case, ICLQ 52 (2003) 53–80; Antonio F. Trillanes, The Philippines Baseline Issue: A Position Paper (2012), available at: http://www.slashdocs.com/mwstnq/baseline-issue.html; Marjorie Whiteman (ed.), US Department of State, Digest of International Law, vol. IV (1965) Documents: Fifth Congress of Micronesia, Law of the Sea: The Preliminary Micronesian Position (1973); GA Res. 53/456 of 5 October 1998; IHB, Manual on Technical Aspects of the United Nations Convention on the Law of the Sea: 1982 (4th edn. 2006); IHO, Hydrographic Dictionary, vol. I (5th edn. 1994); ILA, Report of the Committee on Baselines under the International Law of the Sea, Washington Conference (2014); ILA, Report of the 33rd Conference (1924); UN DOALOS, Archipelagic States: Legislative History of Part IV of the United Nations Convention on the Law of the Sea (1990); UN DOALOS, Baselines: An Examination of the Relevant Provisions of the Law of the Sea (1989); UN DOALOS, Practice of Archipelagic States (1992); US Department of State, The Bahamas: Archipelagic and other Maritime Claims and Boundaries, Limits in the Seas No. 128 (2014); US Department of State, Archipelagic Straight Baselines: Sao Tome & Principe, Limits in the Seas No. 98 (1983); US Department of State, Jamaica’s Maritime Claims and Boundaries, Limits in the Seas No. 125 (2004); US Department of State, Philippines: Archipelagic and other Maritime Claims, Limits in the Seas No. 142 (2014) Cases: ICJ, Fisheries Case (United Kingdom v. Norway), Judgment of 18 December 1951, ICJ Reports (1951), 116; ICJ, Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment of 3 February 2009, ICJ Reports (2009), 61; PCA, Arbitration between Barbados and the Republic of Trinidad and Tobago, Relating to the Delimitation of the Exclusive Economic Zone and the Continental Shelf between Them (Barbados v. Trinidad and Tobago), Award of 11 April 2006, RIAA XXVII; PCA, South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China), Award of 12 July 2016, available at: https://www.pcacases.com/web/view/7 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Terminology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Requirements for Drawing Straight Baselines Under Art. 47 (1) . . . . . . . . . . . . . . . . a) Compliance with the Water-to-Land Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) ‘straight archipelagic baselines joining the outermost points’ . . . . . . . . . . . . . . . . c) ‘provided that within such baselines are included the main islands’ . . . . . . . . . 3. ‘shall not depart to any appreciable extent from the general configuration of the archipelago’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Permissible Length of Archipelagic Baselines under Art. 47 (2) . . . . . . . . . . . . . . . . . 5. Permissible Use of Certain Non-Insular Features as Basepoints under Art. 47 (1) and (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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6. Baselines Not to Cut off Maritime Zones of Other States under Art. 47 (5) . . . . 7. No Interference with Existing Rights and Legitimate Interests under Art. 47 (6) 8. Permissible Use of Waters in Calculating the Water-To-Land Ratio under Art. 47 (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9. Charts and Publicity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10. State Practice and International Jurisprudence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

41 43 47 49 51

I. Purpose and Function The main function and purpose of this provision was to impose reasonable limitations on the drawing of ‘straight archipelagic baselines’ as referred to in Art. 47 (1) around the periphery of the archipelago of a claimant archipelagic State, taking into account the interests of other States (e. g. in terms of preserving rights of communication, fishing etc.), including (expressly) those of neighbouring States.1 It also caters for the interests of the archipelagic States’ supposed interests2 in claiming as extensive an area of archipelagic waters as possible within the baselined periphery in a compromise formula here set out (including all the main islands and water areas which comprise the archipelago). For such reasons supposedly objective criteria to the use of straight archipelagic baselines were inserted at UNCLOS III by means of some five initial geographical criteria (not all exclusively mathematically-based) – including maximum lengths of individual baselines and a water-to-land ratio in combination3 – as well as criteria for choice of certain types of connecting basepoints; 4 and two ‘neighbouring State interest’ limitations – Art. 47 (5) and (6). 2 Consequentially, of course, depending on the length of individual archipelagic lines, zones generated seawards by such baselines may be considerably enhanced as drawn therefrom under Art. 48,5 as compared with generation of such waters by each island. In such an expansive process, former areas of high seas or exclusive economic zone may be taken in as archipelagic waters for the first time.6 A final function of this provision is to lay down how claimed straight archipelagic baselines are to be publicised in the relevant manner under Art. 47 (8) and (9). 1

1

Distant States’ rights are separately dealt with in Arts. 51, 52 and 53. One of the predominating original aims of using straight baselines for enclosing oceanic archipelagos (as opposed to coastal archipelagos) was strategic: to protect the multiplicity of islands in the archipelagoes, though secondarily economic, with the latter aspect – fisheries and seabed resources – becoming increasingly important. Thus, for example, when the Philippines defined its straight archipelagic baselines by Republic Act 9522 of 10 March 2009, it was stated that this was necessary mainly for the purpose of ensuring ‘the national security and territorial integrity of more than 7,100 islands and waters comprising the Philippine archipelago’. Other relevant factors include political integrity and unity (‘geopolitical’), historical factors (including claims to historic waters), and geomorphological and geographical unity considerations – which particularly pertain to archipelagos – and preservation of the environment and waters (anti-pollution control). The very definition of ‘archipelago’ in Art. 46 includes the wording ‘interconnected waters’ and indicates the close interrelationship of them with the islands as an intrinsic entity, or even historical status as such, see Hiran W. Jayewardene, The Regime of Islands in International Law (1989), 137. 3 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 401; see also Muhammad Munavvar, Ocean States: Archipelagic Regimes in the Law of the Sea (1995), 129, who comments that whereas two rules are ‘mathematical and precise’, the others are ‘more general and less precise’. 4 Jayewardene (note 2), 127. 5 John R. V. Prescott, Straight and Archipelagic Baselines in: Gerald Blake (ed.), Maritime Boundaries (1994), 38, 48. However, it has been estimated that in the case of an EEZ at least, where baselines are less that 200 NM long, such baselines result in generating only slightly more ocean space (e. g., 1–2 % extra) compared with such a zone drawn round each exterior island, Robert Hodgson/Robert Smith, The Informal Single Negotiating Text: A Geographical Perspective, ODIL 3 (1976), 225, 243–244. 6 See, e. g., the Indonesian Government Regulation on the list of geographical coordinates of the base points of the archipelagic baselines of Indonesia in the Natuna Sea, Regulation No. 61 (1998), under which waters of the Natuna Sea came inside the new archipelagic baselines, so becoming archipelagic waters for the first time, and thus no longer constituting part of the territorial seas or high seas/EEZ (as originally described): cf. Explanatory Note to Indonesian Regulation No. 61, available at: http://www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/IDN_1998_Regulation61.pdf. 2

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II. Historical Background The history of archipelagic baselines is well summarised in several publications. 7 Tradi- 3 tionally, the unity of a group of islands was not taken account of in the law of the sea, so that the earlier rules relating to baselines applied to each individual island contained in an archipelagic group, including, most particularly, the normal rule, the low-tide mark. Thus, there was then no recognition that the unified concept of an archipelago could generate a baseline system of its own involving a ‘boxing in’ of the periphery of the archipelago. This was particularly evident in the earlier part of the last century 8 and at the Hague Codification Conference in 1930.9 The genesis of enclosing clusters of islands, therefore, had its more recent origins in the 1951 4 Fisheries Case.10 Although the International Court of Justice (ICJ) was there concerned with coastal archipelagos, its dicta could be interpreted by analogy as also applying to mid-oceanic archipelagos.11 Following this, the International Law Commission (ILC) Report of 1956, in a lead-up to UNCLOS I, was to examine whether non-coastal archipelagos should also be subject to a similar regime12 – the resulting Convention on the Territorial Sea and the Contiguous Zone (CTSCZ) of which sanctioned the practice of closing in off-shore archipelagos with the mainland in exceptional geographical circumstances in Art. 4 (1) CTSCZ. However, the principle enunciated by the ICJ in the Fisheries Case is of limited analogous reference to what are dubbed ‘mid-oceanic’ archipelagos, where there is no intrinsic centripetal element which can work in the same way as groups of islands lying off a mainland,13 though other elements relevant in the latter instance, such as ‘general direction of the coastline’, may be analogously applied to the periphery of an archipelago.14 This matter was recently alluded to by the arbitral Tribunal in the Philippines v. China South China Sea Arbitration, where the Tribunal stated that the Chinese claim in the Spratly Islands could be understood to be an assertion that the islands there should be enclosed by a system of ‘straight baselines’ as a ‘single unit’ 15. On this aspect, the Tribunal held that any application of the provision in Art. 7 of the UNCLOS ‘in employing straight baselines with respect to offshore archipelagos to approximate the effect of straight baselines to the Spratly Islands would the contrary [to UNCLOS]’; as the conditions provided for in Art. 7 of the UNCLOS ‘do not include the situation of an offshore archipelago’ not in the immediate vicinity of a coastline.16 7 Nordquist/Nandan/Rosenne (note 3), 418–429 and generally 399 et seq.; UN DOALOS, Archipelagic States: Legislative History of Part IV of the United Nations Convention on the Law of the Sea (1990); Daniel P. O’Connell, The International Law of the Sea, vol. I (1983), 236–258; see also Jayewardene (note 2), 113–126; and most recently, Sophia Kopela, Dependent Archipelagoes in the Law of the Sea (2013), 30–38 and 12–14. 8 E.g., in the Institut de Droit International (1927); ILA, Report of the 33rd Conference (1924); Jayewardene (note 2), 114–115. 9 Jayewardene (note 2), 115–116; see also Sora Lokita, The Role of the Archipelagic Baselines in Maritime Delimitation (2010), 6–9, available at: http://www.un.org/depts/los/nippon/unnff_programme_home/fellows_pages/fellows_papers/lokita_0910_indonesia.pdf. 10 ICJ, Fisheries Case (United Kingdom v. Norway), Judgment of 18 December 1951, ICJ Reports (1951), 116; O’Connell (note 7), 242–244. 11 Jayewardene (note 2), 117 and 129–130. 12 Nordquist/Nandan/Rosenne (note 3), 399; Jayewardene (note 2), 120–123. 13 Fisheries Case (note 10), 131; O’Connell (note 7), 243–255. 14 O’Connell (note 7), 255; see infra, MN 32. 15 PCA, South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China), Award of 12 July 2016, para. 573, available at: https://www.pcacases.com/web/view/7. As the Tribunal went on to say (ibid., para. 575): ‘Although [UNCLOS] does not expressly preclude the use of straight baselines in other circumstances [than those mentioned in Article.7], the Tribunal considers that the grant of permission in Art. 7 concerning straight baselines generally, together with the conditional permission in Articles 46 and 47 for certain State 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’. 16 Ibid., para. 575.

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In the last century – especially at the 1930 Hague Codification Conference – there were some proposals that favoured such enclosure of groups of mid-ocean islands by straight baselines;17 and some academic support for this.18 However, because of a diversity of viewpoints – including a view which denied that archipelagos could form one unit and argued instead that each island therein generated its own territorial waters19 – no agreement was reached on enclosure of insular groups within such lines, particularly over the status of any such enclosed waters and rights of passage therein;20 and so no draft article on the topic ensued. 6 Prior to UNCLOS I, a Committee of Experts in 1953 considered the technical question of drawing straight baselines around island groups,21 but the draft article which resulted from their proposals was eventually deleted,22 because of differing views on the ILC, as well as lack of technical information on the issue.23 The topic was resurrected by the Philippines and Yugoslavia in 1956 before the ILC; but problems arose relating to the status of any waters enclosed within an archipelago and freedom of navigation etc. therein. Thus, any proposals in relation to groups of islands (archipelagos) were eventually dropped, inter alia because they required more study due to lack of technical information;24 and only coastal archipelagos were addressed. At UNCLOS I both Indonesia and the Philippines introduced draft articles on archipelagos,25 as also did Yugoslavia and Denmark;26 but these were withdrawn in the end.27 Thus in the CTSCZ there was no provision relating specifically to mid-oceanic archipelagos,28 despite the fact that at that time (in 1957) Indonesia had declared a system of unitary baselines.29 A little later, the Philippines did the same in 196130 (claiming the enclosed waters as ‘inland’ and ‘national or internal’ in 1971); so that some element of State practice on the topic was even then developing. 7 At UNCLOS III, the final list of topics and issues drawn up by Sub-Committee II of the SeaBed Committee included archipelagos as item 16,31 which by this time was very much an emerging topic in the law of the sea, gaining increasing international support as needing its own special regime.32 A paper by the Bahamas33 incorporating the gist of negotiations between the archipelagic State representatives and those of the major maritime powers, together with earlier proposals, formed the basis of the present article, becoming part of the Informal Single 5

17

O’Connell (note 7), 238–239. Ibid., 239–242. 19 See Lokita (note 9), 9. 20 O’Connell (note 7), 239. 21 Ibid., 244. 22 Ibid., 245. 23 See Lokita (note 9), 11. 24 See UNCLOS I, Yugoslavia: Proposal, UN Doc. A/CONF.13/C.1/L.58 (1958), OR III, 227; UNCLOS I, Philippines: Proposal, UN Doc. A/CONF.13/C.1/L.98 (1958), OR III, 239; Nordquist/Nandan/Rosenne (note 3), 399. 25 Lokita (note 9), 12. 26 Jayewardine (note 2), 123. 27 Nordquist/Nandan/Rosenne (note 3), 400; then, at UNCLOS II in 1960, both the Philippines and Indonesia attempted to resurrect the issue, but these attempts also failed in the light of the complexities of the issue, cf. O’Connell (note 7), 245–246. 28 Jayewardene (note 2), 123. 29 This was implemented internally in 1960, but it was protested against by the US, UK, Japan, Australia, France, New Zealand and the Netherlands, see O’Connell (note 7), 249; Lokita (note 9), 12–13. 30 O’Connell (note 7), 248. In 1957 the UN Secretariat had commissioned Jens Evensen to conduct a study on legal aspects relating to waters of archipelagos; and he divided them into two types ‘coastal archipelagos’ and ‘outlying (mid-oceanic) archipelagoes’, the latter being there defined as ‘groups of islands situated out in the ocean at such a distance from firm land as to be considered an independent whole rather than forming part of or outer coastline of the mainland’, see UNCLOS I, Certain Legal Aspects Concerning the Delimitation of the Territorial Waters of the Archipelagos, UN Doc. A/CONF.13/18 (1958), OR I, 289, 290 (Evensen Report); Jayewardene (note 2), 123. 31 Nordquist/Nandan/Rosenne (note 3), 401; Jayewardene (note 2), 124–126. 32 Jayewardene (note 2), 125 and 133. 33 Sea-Bed Committee, Fiji et al.: Draft Articles on Archipelagos, UN Doc. A/AC.138/SC.II/L.48 (1973), cited in: GAOR 28th Sess. Suppl. 21 (A/9021-V), 8; see further, Nordquist/Nandan/Rosenne (note 3), 405–406. 18

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47

Negotiating Text and then the Revised Single Negotiating Text relating specifically to oceanic archipelagos.34 In the Informal Composite Negotiating Text the draft articles were repositioned as Part IV, as in the finalised convention. It may be said that the pre-conference straight-baseline claims of Indonesia and the 8 Philippines promoted the development of the archipelagic rules by UNCLOS III,35 as also did the later claims of Mauritius (1970) and Fiji (1971)36 especially as, unlike at UNCLOS I, several now-independent archipelagic States were involved in the negotiations. 37

III. Elements 1. Terminology The terms ‘archipelagic State’ and ‘archipelago’ have already been considered in the 9 commentary on Art. 46;38 the definitional aim being to exclude potential archipelagic State claimants which could not enclose an area of water equal to the area of land; 39 as well as to exclude mainland States possessing a group of archipelagic islands far off-shore, 40 like Ecuador and its Galapagos Islands.41 The fact that some such latter continental States have enclosed such islands in straight baselines could still be in conformity with Art. 7 if their geographical circumstances merit it.42 However, it is to be noted that in the recent Philippines v.China South China Sea Arbitration, the arbitral Tribunal had to consider whether China’s statements in its Position Paper of December 7, 2014, could be ‘understood as an assertion that the Spratly Islands should be enclosed within a system of archipelagic or straight baselines, surrounding the high-tide features of the group, and accorded an entitlement to maritime zones as a single unit’.43 On this the Tribunal stated that the ‘use of archipelagic baselines […] is strictly controlled [by the UNCLOS]’; and that archipelagic States are defined in Art. 46; whose definition did not apply to China in respect of the Spratly Islands inasmuch as China is ‘constituted principally by territory on the mainland of Asia and cannot meet the definition of an archipelagic State’.44 As to the second phrase here (‘straight archipelagic baselines’), there is a qualitative 10 difference (though in essence this is more apparent than real) between ‘straight baselines’ (the phrase originally used at UNCLOS III)45 as used as a term of art in Art. 7 (1) and ‘straight archipelagic baselines’ as used here. For the term ‘archipelagic’ indicates a mid-oceanic 34

Nordquist/Nandan/Rosenne (note 3), 402–403; Lokita (note 9), 15. Lokita (note 9), 17; on Indonesian policy, see Etty R. Agoes, Current Issues of Marine and Coastal Affairs in Indonesia, IJMCL 12 (1997), 201, 203. 36 Jayewardene (note 2), 125 and 133. 37 Ibid., 125; Lokita (note 9), 14. 38 See further, Markus on Art. 46 MN 23–39. 39 Prescott (note 5), 38 and 47. 40 Lokita (note 9), 16–17; Jayewardene (note 2), 140–142, 145. 41 When in 1951 Ecuador claimed a unitary belt of waters around these islands, the US protested, Marjorie Whiteman (ed.), US Department of State: Digest of International Law, vol. IV (1965), 282 and 287. 42 UN DOALOS, Baselines: An Examination of the Relevant Provisions of the Law of the Sea (1989), 35 and 38; Lokita (note 9), 17. This is also the recent conclusion of the ILA Committee on Baselines under the Law of the Sea (‘dependent archipelagoes’ are ‘contentious in State practice’): ILA, Report of the Committee on Baselines under the International Law of the Sea, Washington Conference (2014), para. 39.The Tribunal in the Philippines v. China South China Sea Arbitration (note 15), para. 576, referred to State practice of non-archipelagic States claiming straight-baselines around their distant archipelagoes, but opined that it nonetheless saw no evidence that such ‘deviations’ from the UNCLOS rule ‘amounted to the formation of a new rule of customary international law that would permit a departure from the express provisions [of the UNCLOS]’. This viewpoint seems to fly in the face of present State practice. 43 South China Sea Arbitration (note 15), para. 469: The Tribunal referred to China’s Position Paper of 2014, wherein it argued that ‘the Philippines selection of particular features as “an attempt at denying China’s sovereignty over the Nansha Islands as a whole”‘(emphasis added). 44 Ibid.,para. 573. 45 See Nordquist/Nandan/Rosenne (note 3), 427. 35

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archipelago where the outermost points of the outermost islands are connected as a unit (and there is no real centripetal territory) compared with the baseline method used in Art. 7 (1) which is generally applicable to coastal States of continental archipelagoes where there is a fringe of islands in the vicinity of a (usually) continental (and centripetal) entity;46 the former baselines enclosing archipelagic waters, the latter internal waters. For this reason, nonarchipelagic States (as mentioned above) which have applied straight baselines to far off-shore (non-coastal) islands may seek justification for these only under Arts. 7 or 9 and 10, if (respectively) the coast is deeply-indented/fringed by islands or possessing river mouths/ juridical bays.47 11 Early unitised claims did not use the new ‘archipelagic’ terminology. Indonesia, for example, in 1957 merely claimed ‘straight baselines’ connecting its outermost islands. 48 Thus, one of the reasons for the Philippines changing its baselines in 200949 was that previously the Philippines did not have ‘archipelagic’ baselines under the UNCLOS,50 but ‘straight’ baselines more akin to those under Art. 7, making them of doubtful validity in international law (with the waters enclosed consequentially being dubbed as ‘internal’51 rather than ‘archipelagic’). Similarly, in the case of the updated Indonesian regulation of 1996, the old provision mentioning ‘straight baselines’ was changed to refer to ‘straight archipelagic baselines’.52

2. Requirements for Drawing Straight Baselines Under Art. 47 (1) 12

a) Compliance with the Water-to-Land Test. As early as UNCLOS I, fears had been expressed about the complex nature of oceanic archipelagos, and application of continuous straight baselines to ‘widely scattered’ island groups so as to ‘enclose huge areas of water wholly out of proportion to the land area’, even with limits being imposed on length of individual baselines.53 It was for this purpose, as growing acceptance of such a special archipelagic system took shape at UNCLOS III, that the UK in 1973 submitted a proposal (in response to initial proposals of four archipelagic States) aimed at establishing objective criteria, 46 See Prescott (note 5), 39, who further states that archipelagic baselines are of more recent origin and may be more extensive. In the case of Fiji Marine Spaces Act No. 18 (1977), and the Fiji Marine Spaces (archipelagic baselines and exclusive economic zone) Order (1981), neither Rotuma or Ceva-i-Ra (about 250 NM from main Fijian archipelago) had been enclosed by archipelagic baselines, though ordinary straight baselines have been used round part of Rotuma. In the separate list of co-ordinates/map in the UN DOALOS Archipelagic States Study (note 8), 43–44, these waters are clearly designated as ‘internal waters’, possibly because they are so far from the main archipelago; likewise, four islands have been omitted from the five archipelago groups claimed under the Solomon Islands Delimitation of Marine Waters Act No. 32 (1978). 47 US protests in the past have pointed out, as in the case of the Faeroes baselines claimed by Denmark in 1976, that straight baselines there must be justified under such separate provisions, see US protest of 1991 set out in J. Ashley Roach/Robert Smith, United States Responses to Excessive Maritime Claims (2nd edn. 1996), 113– 114; a similar protest was issued from the US to Portugal in 1986 over its claimed straight baselines around Madeira and the Azores, ibid., and to Ecuador concerning the Galapagos (for a second time) in 1986, ibid., 115. For a recent analysis of this problem (albeit from a Chinese viewpoint), see Hong Nong/Li Jianwei/Chen Pingping, The Concept of Archipelagic State and the |South China Sea, State Practice and Implication, China Ocean Law Review (2013), 209, 221–237: They point out that in 1996 China proclaimed straight baselines around the Paracel Islands as being ‘oceanic islands’: ibid., 238. 48 Whiteman (note 41), 284. 49 Philippines Republic Act No. 9522 of 10 March 2009. 50 As under the Philippines Republic Act No. 3046 of 17 June 1961; and Philippines Republic Act No. 5446 of 18 September 1968. 51 Philippines Republic Act No. 3046 of 17 June 1961. 52 Tri Patmasari/Sobar Sutsina/Chaerul Hafidin, The Indonesian Archipelagic Baselines: Technical and Legal Issues and the Changing of Environment (2008), 1 and 4, available at: http://www.gmat.unsw.edu.au/ablos/ ABLOS08Folder/Session6-Paper2-Patmasari.pdf. 53 UNCLOS I, 52nd Meeting, UN Doc. A/CONF.13/C.1/SR.52 (1958), OR III, 160, 162 (Statement of Sir Gerald Fitzmaurice (UK)). The ILA Committee on Baselines under the Law of the Sea at its 2014 Washington Conference (ILA Report 2014 (note 42)) proposed a four year extension to its baselines study to include, inter alia, a study on the interpretation and relevant State practice under Art. 47 of the UNCLOS (ibid., para. 65). It there noted that most archipelagic States have complied with the water to land ratio test: ibid., para 73.

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both to elaborate the legal status of archipelagic States54 and to prevent such States from enclosing vast areas of seas as national waters. However arguably, at least, despite such laudable aims, three of such criteria (as laid down in this article) are allegedly ‘incapable of consistent objective interpretation’.55 The main purpose, then, of this wording in Art. 47 (1) is to apply a supposedly objective initial test to limit over-extensive straight baselines being applied; and commentators have viewed the water-to-land ratio formula here (between 1 to 1 and 9 to 1) as being intrinsically linked with Art. 46; insofar as it ensures ‘widely dispersed islands’ do not qualify as part of an archipelagic State,56 thus providing an initial limitation on excessive claims. This ratio formula replaced initial suggestions in the past that a limitation might come in the form of requisite distance between the various interior islands.57 The limitation on excessive archipelagic baseline claims in the form of a water-to-land ratio requirement is, then, a mathematical formula intended to gauge the reasonableness of the unitised enclosure58; and in an objective way, so as to indicate ‘closely connected units, where the extent of land is fairly high in proportion to that of the intervening spaces of sea’. 59 It originated in the ‘18 Principles paper’;60 and, whilst, as seen, the ratio numbers suggested varied during negotiations at UNCLOS III, the present ratio ultimately proved acceptable even to archipelagic States. The percentage formula – originally suggested by the UK as a maximum 5:1 water-to-land ratio – was later adapted to suit archipelagic State interests, such as Indonesia and the Philippines, both of which easily satisfy the test.61 It was designed to limit archipelagic baselines ‘to relatively compact oceanic groups’; so that, for example, island States comprised of relatively small very dispersed islands in its group, such as Kiribati, would not qualify; 62 nor would Micronesia and others, at least in one single unitary baseline system. 63 As seen, the ‘water-to-land-ratio’ principle is intrinsically connected to the definition of an archipelagic State in Art. 46,64 as it is only if this is satisfied that an entity can ‘formally constitute itself as an archipelagic State’:65 for the lower ratio of 1 to 1 (water-to-land) was designed to ensure enclosure only of waters larger than the surrounded land territory, so excluding archipelagoes with, for example, one very large mainland island with satellites (such as the UK, Madagascar, Japan etc.).66 Despite this, some large insular States have 54 Sea-Bed Committee, United Kingdom: Draft Article on the Rights and Duties of Archipelagic States, A/ AC.138/SC.II/L.44 (1973). 55 Prescott (note 5), 46. 56 Nordquist/Nandan/Rosenne (note 3), 430–431. 57 See Jayewardene (note 2), 138, who says that there is now ‘no limitation’ applied in the ‘form of internal distances between islands’. 58 Ibid., 145. 59 Gerald Fitzmaurice, Some Results of the Geneva Convention the Law of the Sea, ICLQ 8 (1959), 73, 88; Jayewardene (note 2), 145; it may be noted, however, that the advent of global warming may cause future uncertainty by later upsetting an initially favorable water/land ratio through elimination of former small islands within an archipelago. 60 Draft Articles on Archipelagos (note 32). 61 Jayewardene (note 2), 146. 62 Lokita (note 9), 16–18. 63 This entity would seemingly need 200 NM baselines, one segment of 600 NM long, and have a water/land ratio of about 40:1 in any joining of the outermost islands as one archipelago, see Fifth Congress of Micronesia, Law of the Sea: The Preliminary Micronesian Position (1973). The Maldives, the Seychelles and Tonga are similar, as is Mauritius, which includes one largish island, but has some islets too widely dispersed, Jayewardene (note 2), 146; Munavvar (note 3), 130. 64 See Lokita (note 9), 17, who says that whereas Art. 46 lays out the legal and political aspects of archipelagic State definition, Art. 47 lays out the ‘technical requirements’. 65 Nordquist/Nandan/Rosenne (note 3), 429. This point is strongly noted by the ILA in its 2014 Washington Conference Report (note 42), mentioning the significant link of Arts.46 and 47 respectively between an ‘archipelagic State’ and a State able to draw straight baselines consistent with Art. 47. 66 Ibid.; Lokita (note 9), 18; Jayewardene (note 2), 146; and Sofia Kopela, Dependant Archipelagoes in the Law of the Sea (2013),113, 114.

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indeed enclosed their entire coasts with straight baselines (Cuba, Haiti, Malta, and the Dominican Republic).67 In the case of Jamaica, for example, – which consists of one main island and about half a dozen small rocks, islets and cays about 60 NM to the south, its EEZ and Baseline-Regulations (1992)68 have connected the latter isolated small formations to the main island to allow it to qualify as an archipelagic State, with its longest baseline 89.56 NM long and a water-to-land ratio of 2:1.69 The same policy was evident in the case of Sao Tome and Principe.70 17 The reference here to the ‘area of land, including atolls’ indirectly refers to Art. 47 (7) where such (undefined) atolls71 and their waters and reefs are to be treated as part of the land for this test; and the computation of the land area of an atoll may include the area enclosed by its own baselines (where reef gaps occur) like the constituent islands proper (i. e., including some internal waters here; but not other such enclosed waters, such as in internal bays).72 This has been seen as bringing uncertainty into the ratio test, together with the concluding wording discussed below.73 More controversially, for this calculation, such areas considered as land also include certain waters lying within limestone reefs of islands and atolls (similar to the converse situation relating to islands lying in bays being considered waters under the hydrographic test of Art. 10 (3)). Thus Art. 47 (7) refers to inclusion of a ‘part of a steep-sided oceanic plateau which is enclosed or nearly enclosed by a chain of limestone islands […] lying on [its] perimeter […]’. This additional definition of ‘land areas’ may be said to further dilute an otherwise essentially objective test, quite apart from the ambiguity of reference to drying reefs on the perimeter of such a plateau. 74 18 Several States have fallen foul of the water-to-land ratio test. For example, the Dominican Republic’s alleged archipelagic straight baseline system of 1967 (as an archipelagic State), even as revised in 2007, allegedly remains contrary to Art. 47, because its water-to-land ratio (1:1.03) is insufficient.75 Most States, though, appear to have complied. For example, Fiji’s archipelagic baseline claims of 1977 and 1978 satisfy the ratio, as also seemingly do those of Indonesia, the Philippines, Vanuatu, Papua New Guinea and The Bahamas. 76 In the recent Philippines v. China South China Sea Arbitration, the arbitral Tribunal stated that in the light of Art. 47, the ‘ratio of water to land in the Spratly Islands would greatly exceed 9:1 under any conceivable system of baselines’.77 Other States have revised original baselines to comply. In the case of Cape Verde, for example, the originally-claimed archipelagic baseline

67 On the latter and the land/water ratio, see Sophia Kopela, 2007 Archipelagic Legislation of the Dominican Republic: An Assessment, IJMCL 24 (2009), 502, 510; Lokita (note 9), 16; and infra, note 148. 68 US Department of State, Jamaica’s Maritime Claims and Boundaries, Limits in the Seas No. 125 (2004), 2. 69 Ibid., 4, 6. 70 US Department of State, Archipelagic Straight Baselines: Sao Tome & Principe, Limits in the Seas No. 98 (1983), 3 (a ratio of 4.03:1). 71 For a definition of atoll, see IHO, Hydrographic Dictionary, vol. I (5th edn. 1994), 18: ‘a coral island consisting of a ring-shaped reef nearly or entirely surrounding a central lagoon’; but cf. also infra, note 181. 72 Jayewardene (note 2), 145–146. 73 UN DOALOS Baselines Study (note 42), 37 (para. 85). 74 See Prescott (note 5), 47. The UN DOALOS Baselines Study (note 42), 37, comments on the difficulties of judging whether particular formations ‘nearly enclose’ a specific chain of islands; in fact many reefs and atolls have large areas of lagoons which may here be considered ‘land’, Hodgson/Smith (note 5), 243. These provisions are of particular importance to the Bahamas which in its Archipelagic Waters and Maritime Jurisdiction Act 2010 (Chap. 282/LRO/2010), considered the ‘land’ portion of its archipelagic waters (in the waters-to-land ratio) as including all its islands and most of its ‘underwater banks’, though the Grand Bahama bank was not so included as ‘land’ for the purposes of the ratio calculation: see US Department of State, The Bahamas: Archipelagic and other Maritime Claims and Boundaries, Limits in the Seas No. 128 (2014), 2. 75 See Lokita (note 9), 23. 76 Roach/Smith (note 47), 215; Munavvar (note 3), 130; the current water-to-land ratio in the case of Indonesia is between 1:1 and 9:1, Patmasari/Sutsina/Hafidin (note 52), 4. For the Philippines, US Department of State, Philippines: Archipelagic and other Maritime Claims, Limits in the Seas No. 142 (2014), 3; see also Limits in the Seas: The Bahamas (note 74), 2 (a land to water ratio of 6.86:1). 77 South China Sea Arbitration (note 15), para. 574.

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enclosed an area resulting in a ratio of 12.54:1, so exceeding the maximum ratio allowed, though this was subsequently amended (after a US protest in 1980).78 b) ‘straight archipelagic baselines joining the outermost points’. As far as valid connecting basepoints are concerned, the initial wording of Art. 47 (1) indicates not only the most salient points (‘outermost points’) of the archipelagos’ islands, 79 but also ‘drying reefs’ are permissive connecting points.80 It has been commented that the phrase ‘outermost points’ gives a State much latitude in choosing the linking points, as they do not have to be drawn just between the nearest outer islands and reefs;81 but not to the extent of allowing far-out basepoints, unlinked to land, to be used, as, for example, is evident in the Maldives’ past possibly archipelagic baselines claim.82 It may be necessary for archipelagic States to revise initial outermost island/drying reefs claimed basepoints, because of later new geographic evidence, particularly so as to comply with the UNCLOS criteria. It may be noted, for example, that one reason for Indonesia updating its archipelagic baselines, in the years 2002 and 2008, was that its original set of straight baselines, established in 1960, was based on ‘small scale mapping data’; so that when the relevant areas were surveyed later in a field study, it was found that some of the original lines actually cut off some Indonesian islands from enclosure.83 Similarly there have been recent field surveys in the Pacific, under the auspices of the Secretariat of the Pacific Commission in 2009, aimed at verifying the archipelagic basepoints of the outermost islands and natural features of Fiji, Papua New Guinea, Vanuatu and the Solomon Islands; and to ensure that such points comply with the UNCLOS. New declarations of baselines then ensued from these States as a result of this exercise.84 Because of the combination of restrictions in terms of the water-to-land ratio with the length of lines limitations, and the need for compliance of lines with the general configuration of the archipelago in accordance with Art. 47 (3), some islets and features which are too peripheral may have to be omitted from the main set of unitary lines. However, these entities may still be separately ‘boxed in’ as a unit in their own right with their own set of (separate) archipelagic baselines.85 Where the latter expedient is not possible, any isolated and ‘archipelagic-baselineomitted’ individual islands generate maritime zones from their own baselines, such as the lowtide mark, as implied under Art. 121.86 As in the case of Art. 7 (1), similarly the wording here has imprecision, as compared, for example, with Art. 10 (4) on bays, where the closing line linking points are expressly said to be the respective low-water marks on the natural entrance points of the bay. It may be presumed 78 Cape Verde Decree-Law No. 126/77 of 31 December 1977; Cape Verde Act No. 60/IV/92 of 21 December 1992; see Roach/Smith (note 47), 215–216; under Art. 47 (1), the current water-to-land ratio is 9:1. 79 For example Indonesia has used at least 92 small outermost islands, nine of which face the open sea, Patmasari/Sutsina/Hafidin (note 52), 7. According to the US Department of State Limits in the Seas studies, the Philippines has used 101 ‘line segments’: Limits in the Seas: The Philippines (note 76), 3; and the Bahamas has used 95 baseline segments: Limits in the Seas: The Bahamas (note 74), 2. 80 For the definition of ‘drying’, see infra, note 138; cf. the phrase ‘appropriate points’ in Art. 7 (1) (emphasis added) concerning straight baselines stricto sensu. 81 Jayewardene (note 2), 143; see also Munavvar (note 3), 129; some archipelagic legislative provisions reflect this maximisation of claim: see, e. g., Art. 2 Sao Tome and Principe Decree-Law No. 14/78 of 16 June 1978, mentioning joining of the ‘most salient points of the two principal islands and the islets and emerged reefs’ (emphasis added). 82 See infra, MN 36. 83 Patmasari/Sutisina/Hafidin (note 52), 3. Such new geographical information may also allow an archipelagic State to expand its archipelagic system to its own advantage, as did Indonesia in its establishment of four new low-tide elevation points near Sabatik island and Unarang Rock in the NW Sulawesi Sea; see infra, note 154. 84 See the SOPAC website, available at: www.sopac.org. 85 See infra, note 114. 86 See, e. g., the Philippines’ claim to a distant formation known as Scarborough Reef. Although less than 125 NM from Luzon, this reef has not been included in the updated Philippines archipelagic baselines, but left as an isolated entity under the ‘Regime of Islands’ in UNCLOS, see Antonio F. Trillanes, The Philippines Baseline Issue: A Position Paper (2012), 4, available at: http://www.slashdocs.com/mwstnq/baseline-issue.html.

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that similarly here the most seaward low-tide mark on any qualifying archipelagic points is the appropriate linkage point for the baselines, as is now reflected in State practice. See, for example, the Indonesian archipelagic baselines decree for the Natuna Sea in 1998, 87 which in Art. 2, refers to the baselines being established ‘at the outermost points at the low-water line of the outermost islands’. 23 It goes without saying that a connecting basepoint for this purpose must be on territory within the claimant State’s own sovereignty;88 and, for example, it is for this reason that the Philippines has refrained from claiming archipelagic baselines around the Spratly Islands in its recent 2009 archipelagic legislation;89 i. e., in making a decision on whether just the main Philippines archipelago should be straight-baselined or whether the basepoints should also include the KIG islets (Kalayaan Island Group – internationally known as the ‘Spratly Islands’) which are claimed by the Philippines and other States and/or also the Scarborough Shoal (the latter also being claimed by China and Vietnam).90 24 Similarly, later changes in sovereignty over initially-used basepoints may cause subsequent baseline revision. Examples exist in the case of the Indonesian archipelagic baselines. When these were first decreed in 1960, East Timor was under Portuguese sovereignty; 91 and the ICJ’s decision on sovereignty over Pulau Sipidan and Litigan in 2002, awarding both islands to Malaysia, altered the legal status quo for baselines there,92 causing an Indonesian review of its previous baseline decrees made between 1960 and 2008. 93 This resulted in an adjustment of baselines around Sebatik Island and in the Sulawesi Sea. In the case of the area off East Timor (now Timor Leste), there were in 1960 originally nine Indonesian basepoints in the area. 94 Then, when in 1978 East Timor was integrated into Indonesia, these baselines underwent further revision (as five basepoints).95 Finally, after East Timor’s independence in 2002, further revision was needed, with difficult geographical features emerging during surveys around the Wetar Strait due to the change of sovereignty: now ten new basepoints are here specified, 96 and are subject to the more general stipulation in Art. 47 (4), that low-tide elevations (LTEs) used as basepoints must be either within the territorial sea breadth from the nearest island or have built on them a lighthouse or similar installation.97 To this extent, the geological import of the expression ‘reef’ seems not to be of importance here; and adds nothing to Art. 47 (1). 25 It seems clear that mere ‘rocks’ within the definition of Art. 121 (3) may qualify as basepoints in the capacity of being ‘islands’, as they are above water at high tide (just as they may also be appropriate linking points under Art. 7 (1)). Thus, for example, in the 87 Indonesian Government Regulation No. 61 (1998); see also, for example, the Vanuatu Maritime Zones Act No. 23 (1981), Schedule, which uses similar words. See recently ILA Report 2014 (note 42), 2, to the effect that any ‘straight baselines’ must link up with ‘the low-water line’ at their ‘immediate turning points’. 88 Jayewardene (note 2), 139. 89 In respect of the Spratlys, seven of the initially-projected basepoints were then occupied by other States; see Trillanes (note 86), 5, who points out that if the Spratly Islands inclusion option had been chosen, it would have meant designating seven basepoints ‘presently occupied by other countries’; cf. the Mauritian archipelagic baseline claim to the northerly Tromelin Islands claimed by France, see infra, note 116. 90 In the Spratly Island Group there exist multiple claimants of the various islets: Vietnam has occupied 25 of them, China thirteen, the Philippines eight, Malaysia five and Taiwan one. A Philippines House Bill No. 1202, filed by congressman Antonio Cuenco, had proposed adoption of a unitary baseline system linking the KIG and Scarborough Reef to the main archipelago, which, according to calculations done by the Philippine National Mapping and Resource Information Authority, would have expanded Philippine archipelagic waters to 210,443 NM 2 compared to enclosure of the main archipelago taking in 166,858 NM2, but also would have increased the number of baselines from 80 to 135, and the number of long baselines (over 100 NM) from one to four, see Trillanes (note 86), 3. 91 Patmasari/Sutsina/Hafidin (note 52), 3. 92 Ibid., 5–6, for a depiction of how this ‘waisted in’ the baseline situation in that area, ibid., 13. 93 Indonesian Government Regulation No. 61 (1998). 94 Indonesian Government Regulation No. 4 (1960). 95 Indonesian Government Regulation No. 38 (2002); Patmasari/Sutsina/Hafidin (note 52), 6. 96 Patmasari/Sutsina/Hafidin (note 52), 7; Didik M. Sodik, The Indonesian Legal Framework on Baselines: Archipelagic Passage and Innocent Passage, ODIL 43 (2012), 330, 332; Clive Schofield/I. Made Arsana, Closing the Loop: Indonesia’s Revised Archipelagic Baseline System: Commentary, Australian JMOA 1 (2009), 59. 97 Nordquist/Nandan/Rosenne (note 3), 430; see infra, notes 153 and 154.

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Jamaican archipelagic claim, several of its southern critically-placed archipelagic basepoints consist of small rocks, such as Blower Rock.98 It may be noted that the word ‘joining’ does not necessitate that the archipelagic baselines 26 should be absolutely continuous around the periphery of islands (as is also the case, analogously, under the Art. 7-straight baseline system). For example, where any outlying islands are long and straight, the baseline may, for a while, follow the low-tide mark of the land territory in a ‘hiatus area’.99 This principle does, however, mean that the contained archipelagic waters (within the archipelagic baselines) must be completely hived off from the outer sea areas (i. e., from those waters external to these baselines), without leaving any external ‘gaps’ between islands, as this would lead to zonal uncertainty. 100 Ideally archipelagic States should specify the type of straight lines connecting basepoints – e. g., geodesic, great circle of rhumb line:101 but not all such States have.102 Quite apart from political changes affecting existing basepoints (such as loss of former 27 territory, as in the case of Indonesia), obviously some archipelagic basepoints, particularly on fragile formations such as LTEs and reefs, may change over time through erosion etc.; and rising sea levels may also affect this issue.103 Interestingly, Art. 4 of the 1998 Indonesian 98 US Department of State (note 68), 3 et seq.; US Department of State (note 70), 3. Several archipelagic baseline decrees refer to specific types of linking points, such as ‘emerged reefs’ [sic], Art. 2 Sao Tome and Principe Decree-Law No. 14/78 of 16 June 1978; s. 7 Papua New Guinea National Seas Act No. 7 (1977), mentioning islets, rocks, drying reefs and ‘off-lying’ LTEs. In the case of the latest archipelagic baseline claim by the Philippines, concerning ‘Scarborough Shoal’ – basically the equivalent of a ‘rock’ in Art. 121 (3) (as was found to be in case recently in the Philippines v. China South China Sea Arbitration (note 15), para. 556 – this was in the end omitted from the relevant basepoints, despite the fact that this omission entails that, as an independent insular feature, it cannot generate an EEZ or continental shelf for the Philippines, as it might have done if it were part of the Philippines archipelagic baseline, supra, note 86. 99 Some archipelagic baselines decrees do refer to connection of points ‘successively’, Sao Tome and Principe Decree-Law No. 14/78 of 16 June 1978; Papua New Guinea National Seas Act No. 7 (1977), Schedule 2, Part 3 (‘continuous line’); others do not: see S. 3 (3) of Bahamian Act No. 37 (1993), where straight baselines ‘joining the consecutive geographical points as listed’ are ‘subject to any exceptions […] for the use of the low-water line along the coast’ as the baseline between given points; S. 5 (3) Solomon Islands Delimitation of Marine Waters Act No. 32 (1978) (‘[i]n all other cases [apart from the case of archipelagic baselines] the baselines [are] the low-water line’); S. 4 Mauritius Maritime Zone Act No. 2 (2005), which mentions ‘normal baselines’ as well as ‘straight archipelagic baselines’; similarly, in the Dominican Republic Act No. 66/07 (2007), the low-water line is used between archipelagic basepoints on the drying reefs of the northern banks; see also Kopela (note 67), 510–512. In the Indonesian Government Regulation No. 61 (1998), several points are ‘straight’ whereas one (point ‘K’) is a ‘normal baseline’ (low-water line): see further the Indonesian Explanatory Note (note 6), 4; and in the latest Indonesian Government Regulation on the Rights and Obligations of Foreign Ships and Aircraft Exercising the Right of Archipelagic Sea Lane Passage through Designated Archipelagic Sea Lanes, Indonesian Government Regulation No. 37 (2002), no less than 32 points are along the normal low-water line, see I Made Andi Arsana, Indonesia’s Archipelagic Baselines (2009), available at: http://geoboundaries.wordpress.com/2009/03/13/indonesias-archipelagic-baseline: thus in the case of the updated Indonesian archipelagic baselines, the second technical baseline method used was replacing a straight line where it crossed land with the ‘normal baseline’ along that part of the coast when laying down the new set of 179 baselines: Patmasari/Sutsina/Hafidin (note 52), 4. 100 This has happened in a few instances: for example, it appears that Indonesian Government Regulation No. 37 (2002), left a gap around Timor Island and so did not initially fully enclose the Indonesian archipelago. This was rectified in the Indonesia Government Regulation No. 37 (2008), which enclosed the entire archipelago and created ten new basepoints north of Timor Leste, see map in Patmasari/Sutsina/Hafidin (note 52), 18. It also appears that in the original Sao Tome and Principe Decree-Law No. 48/82 (1982), the leg between the first and last-mentioned points was not expressly enclosed, and so would have to be by implication, US Department of State (note 70), 2; the preamble to the Sao Tome and Principe Decree-Law No. 48/82, now refers to the ‘advisability’ of determining more co-ordinates so as to ‘provide perfect continuity of plotting the straight baselines’. 101 IHB, Manual on Technical Aspects of the United Nations Convention on the Law of the Sea: 1982 (4th edn. 2006), paras. 3.9.1–3.9.6. 102 As in the case, e. g., of Sao Tome & Principe, cf. US Department of State (note 70), 1; but see the Vanuatu Maritime Zones Act No. 23 (1981), which refers to ‘geodesic’ lines. 103 The consequence of loss of important archipelagic basepoints may be to then affect the land-water-ratio rule, Munavvar (note 3), 1; as well as the length of substitute baselines and the general configuration of the archipelago, Marcel Hendrapati, Global Warming Impact Towards the Indonesian Archipelagic Baselines (2011), 4 and 8. The Bahamas, Kiribati, the Maldives and Tuvalu, as low-lying groups of islands, are said to be particularly at risk to a rise in sea level.

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archipelagic baseline regulation in the Natuna Sea104 makes express reference to this eventuality where any basepoint ‘in the field’ does not tally with the basepoint data as published, saying that the former (actual observation in the field) ‘shall prevail’. The accompanying Explanatory Memorandum mentions the difficulty of accurate and permanent indication of all Indonesian basepoints on the ‘entire Indonesian coastline’, and the problem of ‘re-determining basepoints that have been changed by natural causes’ (including for example, tsunamis). 105 In the latter connection, it appears that some remote small islands situate west of Sumatra are prone to earthquake damage; and some basepoints were victims of the last tsunami disaster in 2004, resulting in their configurations in parts being eroded.106 Another problematic basepoint is the tiny outer islet of Nipah between Indonesia and Singapore. There sand removal in the area is threatening the continuing existence of the islet which is only 0.36 km 2 in extent at high tide and is now subject to a land reclamation process.107 c) ‘provided that within such baselines are included the main islands’. The proviso relating to the baselines adopted having to include the main islands (a geopolitical factor adopted in informal UNCLOS III negotiations)108 was seen as one more limitation on extensive archipelagic claims, supposedly eliminating outlying insular features which are insignificant in terms of political status and size.109 It originated in a Cuban proposal;110 but is has been criticized for its vagueness, as ‘main’ could apply to several insular factors – for example, the largest, the most populous, the most economically important etc. 111 29 It has been commented that in essence the wording refers to the main islands in the group forming the archipelago, not the archipelagic State as such. 112 JAYAWARDENE maintains that this aspect is ‘based on the familiar geo-political distinction between the “mainland” and outlying elements of an archipelagic State’, so ‘limiting unitisation to assimilation with the political ‘mainland’ or ‘metropolitan territory’, the aim being (together with the other criteria) to exclude from the ‘baselining’ process ‘outlying islands and island groups of an insignificant nature’ in terms of political status and/or size.113 This means that an archipelagic State may consist of more than one archipelago, the outlying groups of which may each separately qualify for being enclosed by archipelagic baselines (with their individual main islands being duly included). There are several examples of where this has happened 114 or been consid28

104

Indonesian Government Regulation No. 61 (1998); see GA Res. 53/456 of 5 October 1998, 15. Indonesian Explanatory Note (note 6), 5; see further Patmasari/Sutsina/Hafidin (note 52), 7. 106 Indonesian Explanatory Note (note 6), 8; in fact satellite photography before and after the tsunami showed no significant topographical changes to the basepoints.Patmasari/Sutsina/Hafidin (note 52), 23 et seq., point out the vulnerability of small islets (as in remote areas west of Sumatra) to earthquake and tsunami damage; and the need to regularly monitor such basepoints using accurate geospatial data from Landsat 7 ETM. 107 Patmasari/Sutsina/Hafidin (note 52), 8. 108 Jayewardene (note 2), 144. 109 Munavvar (note 3), 129–130. 110 Nordquist/Nandan/Rosenne (note 3), 425. 111 See, e. g., UN DOALOS Baselines Study (note 42), 36 (para. 82); Prescott (note 5), 46–47. 112 Nordquist/Nandan/Rosenne (note 3), 430. It may be noted that the ILA, in their Washington Conference Report (2014) (note 42), para. 88, mentioned that its deliberations during its 2012–2016 sessions should include consideration of the meaning of ‘main islands’ in Art. 47(1). 113 Jayewardene (note 2), 144–145. 114 Nordquist/Nandan/Rosenne (note 3), 430; Lokita (note 9), 18. Such ‘multiple’ baseline systems have been used by the following States: Fiji, Marine Spaces Act No. 18 (1977); and the Fiji, Marine Spaces (archipelagic baselines and exclusive economic zone) Order (1981). Four islands were omitted from the five archipelago groups claimed under the Solomon Islands Delimitation of Marine Waters Act, No. 32 (1978), which details enclosure not just of the ‘main group archipelago’, but also the Ontong Java group, the Duff Islands Archipelago, Santa Cruz Islands and Indispensable Reefs, see map in UN DOALOS Archipelagic States Study (note 8), 108; and Papua New Guinea National Seas Act No. 7 (1977), which encloses apart from the ‘principal archipelago’, the smaller separate formations called Tauu Islands and Nukumanu Islands: see further UN DOALOS Archipelagic States Study, ibid., 67, 74. Cf. generally Munavvar (note 3), 135. Indonesia’s archipelagic baselines are unitary, though purportedly it has four separable archipelagoes – Sunda Besar, Kepulauan Sunda Kecil, Kepulauan Maluku, and West New Guinea; see Sobar Sutisna/Sora Lokita, The Fact is: Some Contentious Issues Still Do Matter (2010), available at: http://www.gmat.unsw.edu.au/ablos/ABLOS10Folder/S1P3-P.pdf. 105

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ered).115 This ‘separate treatment’ interpretation is said to be reinforced by the wording in Art. 47 (2) referring to ‘any archipelago’. Thus some archipelagic States have indeed expressly referred to applying the principles of 30 Art. 47 to ‘any’ archipelago in their territory (e. g., the Solomon Islands).116 Accordingly, the limitation factors mentioned above and below apply separately, and not in combination, to independently-baselined parts of a unitary State archipelago.

3. ‘shall not depart to any appreciable extent from the general configuration of the archipelago’ This proviso, also aimed at cutting down on excessive archipelagic baseline claims, is the 31 vaguest of the five mentioned in the regulation; and was borrowed,117 in this adapted form, from the similar provision in Art. 7 (3), with the substitution of the above wording (‘general configuration of the archipelago’) instead of ‘general direction of the coast’ mentioned in the latter;118 for the obvious reason that there is no mainland coast (or centripetal emphasis) in the former case, merely an archipelagic periphery; 119 so that arguably archipelagos only have a meaningful configuration after lines are actually drawn around the outermost islands. 120 In the light of current State practice, however – and the fact that this factor is already implied in the mathematical criteria – it is doubtful that this provision adds much as a limitation on excessive claims.121 It would, though, rule out crude and arbitrary polygonal or rectangularshaped claims as evident in the case of the Malagasy Republic claim of 1963. 122

4. Permissible Length of Archipelagic Baselines under Art. 47 (2) One of the most contentious issues discussed in the UNCLOS negotiations concerned the 32 permissible length of individual archipelagic baselines,123 and whether, and if so used, to what maximum length the lines might extend on an analogy with the 24 NM bay closing rules under Art. 10 (4).124 By contrast, of course, no such limitations are specified for straight baselines around coastal archipelagoes in Art. 7, possibly because in the latter case less extensive areas of international waters are enclosable. 125 The ‘maximum length’ principle, as incorporated in the ICNT, was inserted not only to confine archipelagic waters to reasonable limits, but also to ensure that widely dispersed islands would not be included in a single unitary archipelagic claim; and to emphasise a proximity relationship in any insular grouping.126 This additional limitation also has a bearing on archipelagic State status per se (like the 115 See, e. g., the updated Philippines’ legislation, Philippines Republic Act No. 9522 of 10 March 2009, in the case of which no separate ‘archipelagic baseline’ treatment was enacted relating to certain contested groups of islets; supra, note 86. 116 See S. 4 (1) and S. 5 (2) Solomon Islands Delimitation of Marine Waters Act No. 32 (1978), where, five separate groups of islands are declared to be archipelagoes, including the main island. Similarly, Mauritius has made revised archipelagic baselines around not just its main island group, but also the four separate archipelagic entities of Rodriques, Agalega, St Brandon and Tromelin in 2007, see infra, note 191. 117 For its history, see Jayewardene (note 2), 149. 118 See Nordquist/Nandan/Rosenne (note 3), 431. 119 Jayewardene (note 2), 149. 120 Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 124; Munavvar (note 3), 132. 121 Jayewardene (note 2), 149–150. The US Department of State, for example, in the case of the Philippines’ archipelagic claim, comments that the configuration of these baselines does not appear to depart to any appreciable extent from the general configuration of the archipelago under Art. 47 (4): Limits in the Seas: The Philippines (note 72), 3. 122 Madagascan Decree No. 61–131 (1963); the Maldives’ rectangular baseline is also dubious for this reason, though Munavvar (note 3), 132, opines otherwise. 123 Nordquist/Nandan/Rosenne (note 3), 402; Clive R. Symmons, The Maritime Zones of Islands in International Law (1979), 79–80. 124 Jayewardene (note 2), 147; Nordquist/Nandan/Rosenne (note 3), 423. 125 Jayewardene (note 2), 147. 126 See Nordquist/Nandan/Rosenne (note 3), 428 and 431.

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ratio test), in that several island States – including Mauritius, the Maldives and Micronesia – are prima facie excluded by this limitation alone from any completely unitary archipelagic existence due to the large distances between islands in their group. 127 Some ambiguity, however, lies in the stipulated proviso to the 100 NM requirement; namely that three per cent of the totality of baselines are allowed to run to 125 NM. For it has been doubted whether the rule is as strict as it appears, because by manipulation of the number of segments chosen (on which there is no express limit), it may be possible to adjust the number of segments so as to keep very long baselines.128 33 At UNCLOS III, various baseline lengths were proposed, ranging initially from five, ten and 48 NM.129 Finally the formula chosen was a fixed distance of 100 NM, with a limited exception based on percentage of the total number of baselines up to a maximum distance. This formula is now reflected in State practice: for example, in the updated Indonesian archipelagic baselines, where the field study preceding the move indicated construction of some new basepoints utilising the three per cent rule.130 Thus, in the Indonesian case, the past configuration of basepoints that were more than 110 NM apart in the southern part of the central Java region had later to be changed by specifying instead two baselines;131 because under Art. 47 (2) Indonesia can have only five segments of baselines which are more than 100 NM long (i. e., three per cent of the 183 baselines).132 Although Indonesia’s past longest baseline was 124 NM,133 one of the former Philippines baselines (mentioned below) was far in excess of this. 134 Thus, one of the reasons for the Philippines altering its baseline system in 2009 round its main islands was because one of the previous baselines – along the Moro Gulf – was 140.05 NM in length and thus in contravention of Art. 47 (2) here.135 34 Several archipelagic baseline decrees in fact now mention the actual length of individual baselines claimed, as, for example, the Indonesian regulations relating to the Natuna Sea in 1998,136 eliminating no less than 22 previous basepoints in the enclosed area.137 According to the most recent list of coordinates,138 the longest lines appear to be at Point No. 20 (Karang 127

Jayewardene (note 2), 149. UN DOALOS Baselines Study (note 42), 37 (paras. 83 et seq.); Prescott (note 5), 47, has similarly expressed skepticism in this regard, saying that it only has a ‘superficial exactness’ as a State may use more ‘short legs’ than are strictly necessary to preserve the general configuration of the archipelago. 129 Jayewardene (note 2), 147. 130 See Patmasari/Sutsina/Hafidin (note 52), 4. 131 Indonesia: Maritime Zone Notification (MZN) No. 67 of 25 March 2009; Nos. 141–142. Thus Indonesia also has seen fit to update its older straight baseline provisions from point to point with new ‘straight archipelagic baselines’; Indonesia Government Regulation No. 61 (1998) and Indonesia, Explanatory Note (note 6) to accord with Art. 47 after Indonesia became a party to UNCLOS in 1985, with updated geographical co-ordinates, Patmasari/Sutsina/Hafidin (note 52), 1–3. This was partly because two of the 196 formerly-decreed archipelagic lines (with 201 basepoints) extended in two areas – between Nos. 59–60 and 71–72 – to the excessive distances of 122.4 and 121.6 NM respectively. 132 Patmasari/Sutsina/Hafidin (note 52), 7; Trillanes (note 86), 3–4. If the Philippines had opted for including the KIG Islands and Scarborough Reef in its updated new baseline system, it could have meant the addition of some three new baselines over 100 NM long, whereas under the actual finalized situation only one baseline exceeded 125 NM. 133 Jayewardene (note 2), 148. 134 Ibid. 135 Trillanes (note 86), 2; furthermore, previous law in the Philippines Act No. 3046 of 17 June 1961, considered the seaward baseline up to the limits of the Treaty of Paris of 1889 as territorial waters, the longest length there being 285 NM. See also the US Department of State report on the Philippines archipelagic claims: Limits in the Seas: The Philippines (note 76), 3 (‘consistent with Art. 47 (2) […] which comprise 2.97 per cent, three baseline segments of the total number of segments exceed 10nm in length’) and none exceed 125 NM. Similarly it is stated in the case of the Bahamas’ baselines that none of the segments exceeded 125 NM: Limits in the Seas: The Bahamas (note 74), 3. 136 Point 2 (87.73 NM), is the longest there in the Kantong Natuna area, see Indonesian Government Regulation No. 61 (1998), Annex I; see the maps set out in Patmasari/Sutsina/Hafidin (note 52), 11–12, connecting point TD 01A (Pulau Sentut) to TD 22 (Pulau Malangbiru). These maps show what a dramatic change in the size of archipelagic waters such a ‘short-cutting’ baseline expedient may, paradoxically, effect. 137 Indonesian Government Regulation No. 61 (1998); see Patmasari/Sutsina/Hafidin (note 52), 5–7. 138 Indonesian Government Regulation No. 37 (2008). 128

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Unarang, 110.27 NM long), No. 44 (Tampida, 122.75 NM long) and No.142 (Kooma, 102.15 NM long). Several States have not exceeded the 100 NM limit on their longest segments or have at least brought their limits into line following international protests. For example, Sao Tome and Principe, now has longest segments of 99.53 and 85.89 NM. Originally Cape Verde claimed two straight baselines exceeding the 125 NM maximum, but these were also later amended.139 The US protested, however, to the Maldives even over its revised 1996 archipelagic claim on the basis of three segments exceeding 100 NM in length when the three per cent-rule meant that only one (of the 37 segments) could be over this distance. 140

5. Permissible Use of Certain Non-Insular Features as Basepoints under Art. 47 (1) and (4) Prima facie, baselines cannot connect permanently submerged features, 141 or comprise 35 points fixed on the sea (as in the case of the Maldives); but, as will be seen, some archipelagic States may have overlooked this requirement.142 The question therefore arises whether the reference to ‘drying reef[s]’ in Art. 47 (1) is the same as a LTE mentioned in Art. 47 (4) in view of the different descriptions.143 For example, whether the reference to ‘reefs’ is solely a geomorphological description, so applying only to coral reefs rather than other formations such as rocks etc. The fact that Art. 47 (4) was added later than the reference to ‘drying reefs’ in Art. 47 (1)144 might tend to imply that the former feature is a basepoint independently of Art. 47 (4). Art. 7 (4), relating to straight baselines stricto sensu, is of no interpretative assistance as it has no equivalent provision on qualifying LTEs (without above-water structures on them) if situate within the territorial sea distance qualifying as basepoints. An added interpretative problem here is that if features constitute ‘fringing reefs’ under 36 Art. 6, they do not explicitly have to comply with this distance requirement as do baselines more generally.145 Some authors seems to be of the view that the description of ‘reefs’ corresponds with requirements under both Art. 7 (4) and Art. 13 (on LTEs);146 and some recent State practice does indeed indicate that any such features must be within the territorial sea distance of an island to qualify as an archipelagic basepoint,147 so endorsing this interpretation. Several claimants as archipelagic States have referred to basepoints joining reefs 37 or drying reefs in their legislation;148 and it has been pointed out that some States have 139 See Roach/Smith (note 47), 215. According to the US Department of State, the 101 Philippines archipelagic baseline segments range from 0.08 NM to 122.8 (segment 47–48) (Limits in the Seas: The Philippines (note 76)); and the 95 Bahamian baselines range from 0.0 1NM to 124.69 NM (Limits in the Seas: The Bahamas (note 74). 140 Lokita (note 9), 24–25. 141 Kopela (note 67), 510. 142 For example, the use of the Navidad Bank as a basepoint by the Dominican Republic, which has been described as not drying; and is far outside the Republic’s territorial sea limits, ibid., 512. 143 Ibid., 510, the epithet ‘drying’ implies the formation is at least above low-tide datum. 144 John. R. V. Prescott/Clive Schofield, The Maritime Political Boundaries of the World (2nd edn. 2005), 170. 145 See the Indonesian claim relating to the reef of Karang Unarang as an archipelagic basepoint under Art. 6, infra, note 154. 146 Nordquist/Nandan/Rosenne (note 3), 431. See, e. g., the Papua New Guinea National Seas Act No. 7 (1977), which in s. 7 (5) refers to islets, rocks, drying reefs and LTEs ‘within the area of offshore seas’ and ‘adjacent to, near or associated with a feature of the coastline’; and see Peter B. Beazley, ‘Maritime Limits and Baselines: A Guide to their Delineation’ (3rd edn. 1987), 30. 147 See, for example, the use by Indonesia of new LTEs found around Sebatik Island and Karang Unarang (Unarang Rock), infra, note 154; and, in the case of the Philippines, the eventual non-inclusion of Scarborough Reef in its latest archipelagic baseline system which was further complicated by the fact that some of the off-lying formations there were LTEs outside the insular territorial sea, and so would, it was argued, need to have artificial constructions on them to qualify as basepoints, Trillanes (note 86), 5. 148 E. g., S. 6 (1) Trinidad and Tobago Archipelagic Waters and Exclusive Economic Zone Act No. 24 (1986); but see the Papua New Guinea National Seas Act No. 7 (1977), Schedule 2, Parts 2 and 3, which (respectively) refer ambiguously to a line enclosing ‘all islands, shoals, rocks, and reefs (whether or not submerged)’ (emphasis added), thus leaving it unclear whether this refers to submergence at high or low tide. The US Department of State, by contrast, has recently noted that none of the Bahamian archipelagic basepoints seem to use LTEs under Art. 47 (4), and thus are compliant with the UNCLOS: Limits in the Seas: The Bahamas (note 74), 3.

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in fact used drying reefs as basepoints even where they are more than the territorial sea distance from the nearest island, such as the Solomon Islands and Fiji. 149 It has been argued that this may be legitimate as long as the formations actually dry out, 150 but this seems doubtful. For example, a joint US/UK protest in 2008 complained that Art. 47 (4) was breached in the case of the claimed Dominican Republic’s archipelagic basepoints in 2007,151 in that ‘[o]ne of the criteria [for archipelagic baselines] is that the turning points […] may only join the outermost islands and drying reefs of the archipelago, and may not be drawn from [LTEs] except in two enumerated circumstances’; 152 so arguably implying that the reference to ‘drying reefs’ in Art. 47 (1) has the same meaning as LTEs here.153 38 The fact that both protesting States asked the Dominican Republic to provide documentary evidence that the contested basepoints were ‘islands or drying reefs that are above water at high tide’ (emphasis added) indicates that such distant reefs needed true insular status to be basepoints (when situated outside the 12 NM limit and so not constituting intraterritorial LTEs within the meaning of Art. 47 (4)). 39 This intraterritorial aspect has been complied with in the case of LTEs involved in the updated Indonesian archipelagic baselines designated in the Natuna Sea in 1998. 154 The proviso in Art. 47 (4) relating to a LTE having to be within the territorial sea distance from the nearest island (unless lighthouses or similar installations have been built on it) mimics, of course, the wording of Art. 13 (1) as seen, using the same geographical description, here referring to breadth from the ‘nearest island’ rather than from the mainland. However, the comment that this combines the provisions of Art. 13 (1) and Art. 7 (4) ignores some differences derived from the rule in Art. 7 relating to straight baselines. 155 40 A similar situation has arisen in connection with the Philippines’ consideration of using its claimed Scarborough Reef (in the Spratly Islands area) in its latest set of archipelagic baselines as an enclosed entity: in that such an expedient potentially violates Art. 47 (4), insofar as Sabina Shoal and Iroquois Reef lying off the reef are extraterritorial LTEs; 156 and it was not seen as permissible to construct lighthouses on same to make them qualify

149

Kopela (note 67), 513. Ibid., 514. 151 Dominican Republic Act No. 66/07 (2007). 152 Text of a Joint Demarche Undertaken by the United Kingdom of Great Britain and Northern Ireland and the United States of America in Relation to the Law of the Dominican Republic Number 66-07 of 22 May 2007, 18 October 2007. 153 Kopela (note 67), 514. 154 Indonesian Government Regulation No. 61 (1998); see the accompanying Indonesian Explanatory Note (note 6), 5, which expressly refers to use of ‘drying reefs or low-tide elevations’ on ‘the outermost points of the low-water line on every [LTE] over which a lighthouse or similar installation has been built on them or [LTE] which is partly or fully located within twelve [NM] from the low-water line of the nearest island’. One of the reasons for updating the baselines in 1998, 2002, and 2008 seems to have been receipt of new information on the existence of natural features and LTEs in some areas. Thus when updating its baselines system under Part IV of UNCLOS, Indonesia conducted a series of field studies of potential basepoints, looking both at LTEs, rocks and islands proper, and in the Sulwesi Sea area in surveys during 2004–2006. From this, some new LTEs were found around Sebatik Island and Karang Unarang (Unarang Rock), allowing establishment of four new basepoints replacing the former three in the area. These new basepoints were all based on qualifying LTEs under Art. 13, being within the territorial sea distance from the nearest islands. Indonesia appears, though, to have relied on Art. 6 for the eligibility of the ‘reef’ of Karang Unarang, although this is somewhat academic as it is in any event within nine NM of Sabatik Island, cf. Patmasari/Sutsina/Hafidin (note 52), 1–6. 155 UN DOALOS Baselines Study (note 42), 37 (paras. 83 et seq.). Under Art. 7 (4) there is, of course, no provision for even a distance stipulation for a plain LTE to qualify. Also missing in Art. 47 (4) is the Art. 7 (4) proviso as to an alternative qualification as a basepoint; namely, for a LTE having received ‘general international recognition’ as a basepoint, where there is again no distance stipulation, if this is not built on as described above; cf. Lokita (note 9), 19, who wrongly seems to think otherwise: presumably because archipelagic baseline claims are of recent origin, the scope anyway of such latter LTEs becoming generally internationally recognised as archipelagic basepoints is limited. 156 See Trillanes (note 86), 4–5. 150

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insofar as it would violate the ‘Declaration of the Conduct of the Parties in the South China Sea’ signed by ASEAN States and China in 2002.157

6. Baselines Not to Cut off Maritime Zones of Other States under Art. 47 (5) This proviso also acts as some limitation on the location of archipelagic baselines, albeit here 41 for third party State158 reasons (see the phrase ‘another State’), rather than strict geographical reasons as in all the preconditions of Art. 47 (1) to (4) mentioned above, as the proviso could entail actual disqualification of any archipelagic baseline which would have this limiting effect due to ‘third party’ concerns.159 Thus it has been commented that Art. 47 (5) together with Art. 47 (6) ‘both attempt to reduce the impact of the claiming of [archipelagic baselines] and the establishment of archipelagic waters on the rights and interests of neighbouring States’; and that Art. 47 (5) echoes Art. 7 (6) in the case of a conventional straight baseline system. 160 Its inclusion here was influenced by States neighbouring archipelagic States, such as Malaysia, to ensure that archipelagic baselines should not act to their detriment concerning ‘maintenance of communications with components of the national territory’.161 An example of such a situation is where a small foreign enclave exists on the coast of an 42 otherwise politically-unified group of islands. One possible example of this is the enclave of Oecussi, now under the sovereignty of Timor Leste, but separate from the main eastern entity of this State. When in 2008 Indonesia amended its archipelagic baselines in this area, it effectively closed off by sea, this enclave (and the Timor-Leste-owned islet of Pulau Atauro) from the rest of (eastern) Timor Leste by extending one baseline from the main Indonesian/ Timor Leste border junction northwards to connect with the Indonesian Island of Alor Island; so surrounding the abovementioned enclave (but not the Timor Leste-owned islet of Pulau Atauro situated further east) completely with its archipelagic waters. 162

7. No Interference with Existing Rights and Legitimate Interests under Art. 47 (6) This one paragraph – which only protects the relevant third party State rights in 43 archipelagic waters as such and not beyond163 – was part of the compromise exacted by such negotiating States at UNCLOS III for their consensus on the archipelagic baselines provisions. This was so as to preserve their claims to certain existing treaty and non-treaty rights (‘legitimate rights [and interests] […] traditionally exercised’) exercisable in any such newly-enclosed waters. These claims could include fishing rights and rights to submarine 157 This was signed in 2002, and expresses agreement to ‘exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability including, among others, refraining from action of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other features and to handle their differences in a constructive manner’, ibid., 5 (emphasis added). 158 ‘Another State’ must necessarily mean in this context any State which is a neighbour of the archipelagic State imposing the baselines. 159 See Churchill/Lowe (note 120), 124. 160 Nordquist/Nandan/Rosenne (note 3), 431. 161 Jayewardene (note 2), 151–152, aptly described this as prevention of ‘screening off’ of an adjacent State, an issue that came up in the Singapore–Indonesia territorial sea boundary in the ASEAN region; Churchill/Lowe (note 120), 124, have noted that in the past the Indonesian baseline claim has had this effect on the territorial sea of Singapore, which on a strict reading should have affected the baseline direction. 162 Indonesian Government Regulation No. 37 (2008); see the maps in Patmasari/Sutsina/Hafidin (note 52), 18–19. The maps seem to indicate that Oecussi has just an off-shore territorial sea the length of its own coastline. Indonesia in fact appears to share a border with no less than ten neighboring States where basepoints are relevant. The authors only mention the ‘position of Pulau Atauro’ making the new baseline exercise ‘more complicated’; in the latter case, it appears that this strategically-positioned island to the north of Timor Leste (which owns it) has just been excluded from (and left south of) Indonesia’s baselines between its islands of Alor and Wetar in Indonesian Regulation No. 37 (2008). Timor Leste protested against the Indonesian baselines on March 5, 2012. 163 Jayewardene (note 2), 157.

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cables.164 However, it is something of an anomaly in the generic context of Art. 47, as Art. 47 (6) has no direct reference to the actual drawing (or indeed publication) of archipelagic baselines as such – as do all the other paragraphs of the article. 44 At first glance this provision does not appear (as possibly does Art. 47 (6)) to restrict the drawing of baselines as such in any way165 – merely referring to continuance and respect for existing rights and interests of immediately adjacent States of the archipelagic claimant (which could, of course, theoretically be effected regardless of baseline implications). For this reason, it has been aptly commented that Art. 47 (6) could easily have been hived off, and more logically contained, in Art. 51 (1) which in effect repeats the substantive effect of it in more detail specifically for such States,166 such as traditional fishing rights (of importance to Thailand and Singapore, for example, in Indonesian waters);167 whereas the rights mentioned in this paragraph are of a ‘more general nature’.168 However, it has been argued that the placement here can possibly be justified logically as such factors might affect or influence the actual legality of such baselines if they were ‘totally incompatible’ with such third party rights; and so a matter of concern to such States in terms of the actual delimitation. 169 45 This provision – the seeds of which were contained in the ISNT and ICNT – resulted from an Indonesian proposal170 following Malaysian concern about constriction of its essential maritime rights following enclosure of former international waters in new archipelagic waters.171 To be thus affected, and so have the rights enumerated here, the archipelagic waters must lie between such an adjacent State and the archipelagic claimant, the baselines so potentially separating ‘two parts’ of the areas involved; 172 and, for such a State to benefit, it must be ‘immediately adjacent’ to the archipelagic claimant rather than just close or ‘neighbouring’.173 An example of such ‘adjacency’ requirement being satisfied is the case of Malaysia situate next to Indonesia.174 46 It is to be noted that not just past treaty rights (agreements) – seemingly thus lex specialis under Art. 311175 (in terms of freedom of communication, access etc.) – are to be respected, but also other (non-treaty) traditional (i. e., essentially historical) 176 legitimate and established rights and interests exercised in the affected archipelagic waters. 177 This interrelates, as seen, 164 Treaty between Malaysia and the Republic of Indonesia Relating to the Legal Regime of Archipelagic State and the Rights of Malaysia in the Territorial Sea and Archipelagic Waters as well as in the Airspace above the Territorial Sea, Archipelagic Waters and the Territory of the Republic of Indonesia Lying between East and West, 25 February 1982, reproduced in: UN DOALOS, Practice of Archipelagic States (1992), 144 (1982 Malaysia/ Indonesia Treaty); see Indonesian Explanatory Note (note 6), 5; Lokita (note 9), 20 (footnote 71). 165 Jayewardene (note 2), 152; Munavvar (note 3), 159–160. 166 Jayewardene (note 2), 152, ‘rights [there] of essentially the same character’. 167 Ibid., 156 and 188 (footnote 391). 168 Ibid., 157. 169 Ibid., 151–152. 170 Thailand also made proposals at UNCLOS III to protect neighboring States from the effects of newlyestablished archipelagic baselines, Nordquist/Nandan/Rosenne (note 3), 432. 171 Ibid., 428–429. 172 Ibid., 431–432. 173 Ibid., 426, 432 (emphasis added). 174 Ibid., 420–421; a proposal was made in 1974 so as to enable Malaysia to access and communicate between both parts of its territory. Malaysia was originally concerned about the former high seas area affected by the Indonesian imposition of archipelagic baselines between east and west Malaysia; Jayewardene (note 2), 152; see the preamble to the 1982 Malaysia/Indonesia Treaty, which notes that the Indonesian archipelagic baselines ‘would seriously affect existing rights and other legitimate interests exercised by Malaysia’. These Indonesia said it ‘would recognise and respect’, including rights of access and communication for vessels and aircraft, Malaysian traditional fishing rights, existence/protection of submarine cables and pipelines and other rights, Art 2 (2) 1982 Malaysia/Indonesia Treaty. 175 Nordquist/Nandan/Rosenne (note 3), 432; Churchill/Lowe (note 120), 125, comment that this was ‘presumably’ inserted to avoid any conflict between an UNCLOS party’s obligations thereunder and obligations under prior agreements, thus being an exception to the principle laid down in Art. 311. See further, Matz-Lu¨ck on Art. 311 MN 8–23. 176 Nordquist/Nandan/Rosenne (note 3), 432. 177 As requested by Malaysia at UNCLOS III, ibid., 424–426; in fact the 1982 Malaysia/Indonesia Treaty of 1982, also protects Malaysian rights and interests in the Indonesia’s territorial sea.

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with Art. 51 (1) and (2) dealing with more specifically ‘traditional fishing rights’, submarine cables and right of passage. This protective principle has recently been transposed into some archipelagic State legislation as an additional safeguard. Thus, for example, there is explicit reference in the Indonesian decree of 1998 that the new baselines in the Natuna Sea had been ‘established with due respect to existing Treaty and Agreement with neighbouring State [sic!] concerning the maritime areas which constitute Indonesia’s archipelagic waters’. 178 This, in part, was intended to refer to the 1982 treaty between Indonesia and Malaysia.

8. Permissible Use of Waters in Calculating the Water-To-Land Ratio under Art. 47 (7) As seen, this geographical and geological proviso adds an element of uncertainty to the 47 supposedly objective water-to-land ratio rule mentioned above, and seems to have been introduced by the Bahamas at UNCLOS III,179 because under a conservative water-to-land ratio test, the Bahamas would not qualify for an archipelagic baseline claim, due to its ‘unique geology’.180 Its islands do, though, have large lagoons which are said to be ecologically different from the surrounding ocean. Thus, this special test was introduced to ‘allow waters inside fringing reefs and atolls to be counted as land’; with an expansive (partial) definition of an ‘atoll’ in the end.181 It was not intended to comprise LTEs per se in this context, so the reference to atolls would seem to be addressed to those types of formations above water at all times.182 On the other hand, the further reference to an enclosed or nearly enclosed ‘steep-sided 48 oceanic plateau’ area of waters would seem to apply essentially to the shallow Bahamas Banks, which are non-navigable and contain continuous reefs/shoals; and so might apply to what are arguably (in a geographical sense) ‘non-atoll’ features (albeit for the water-to-land ratio purposes alone).183 In this sense these areas may be assimilated to internal waters and fictive land, as also, by analogy, may be the waters enclosed by baselines around atolls to increase the land area for the ratio test.184 One apparent archipelagic State claimant has seemingly made at least indirect reference to this principle in its legislation. Thus, for example, the Maldives’ Maritime Zones Act makes express reference to the waters of every atoll, lagoon and reef being its internal waters.185

9. Charts and Publicity The requirement for publicity for the location of baselines here is arguably particularly 49 necessary because of their length; and the extensive size of enclosed waters, in which foreign mariners have more limited navigational rights.186 Originally it was proposed archipelagic baselines should simply be publicised on large-scale charts; but this was later harmonised with Art. 16.187 As it is, the two paragraphs here closely parallel Art. 16 on publicity of other straight baselines, and many commentators have suggested the duties under both provisions 178

See Art. 2 (1) Indonesian Government Regulation No. 61 (1998). Relating specifically to its insular formation, Nordquist/Nandan/Rosenne (note 3), 432. Ibid., 423. See supra, note 70. 181 Dale Andrew, Archipelagos and the Law of the Sea: Island Straits States or Island-Studded Sea Space, Marine Policy 2 (1978), 46–64, footnote 62. 182 Jayewardene (note 2), 137. 183 Thus not for use as archipelagic basepoints, but see ibid. For the case of the actual Bahamas’ archipelagic baselines claim, see Limits in the Seas: The Bahamas (note 74). 184 Ibid., 145–146; Munavvar (note 3), 130, and 143–144, where he mentions that the latter wording may be an attempt to define an ‘atoll’ and to reconfirm that ‘relatively large features’ such as atolls in the Maldives which measure some 50 NM in diameter may be included in ‘land areas’. For a general definition of ‘atoll’, see supra, note 71. 185 S. 2 Maldives Maritime Zones Act No. 6/96 (1996). 186 See Jayewardene (note 2), 153. 187 Nordquist/Nandan/Rosenne (note 3), 425, 427, 432. 179 180

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are identical,188 if not similar.189 However, in one significant way they are not the same; and that is because Art. 16 (1), as seen, gives an apparent option to claimant States of the baselines detailed there to merely indicate (by way of appropriate charts or lists of coordinates) ‘limits derived therefrom’. An archipelagic State, however, has no option to merely publish charts or lists of co-ordinates of the territorial seas derived from its baselines rather than those of the archipelagic baselines themselves. 50 Most archipelagic States appear to have complied with the publicity requirement of Art. 47 (9), including its UN deposit-requirement, 190 even if only on an interim basis.191 Several archipelagic State claimants have also made express provision for publicising archipelagic baselines in their maritime legislation.192 The ‘due publicity’ aspect is probably satisfied minimally by domestic publication, as in a national gazette or other government publication.193

10. State Practice and International Jurisprudence 51

In fact many existing archipelagic baseline claims do adhere to the restrictive criteria; 194 and some – like the claim of Cape Verde which were originally illegal – were later amended, in the light of protests, to conform to Art. 47. 195 Up to 2009, some 20 188 See, e. g., Jayewardene (note 2), 153 (footnote 374); and the citations in Clive R. Symmons/Michael Reed, Baseline Publicity and Charting Requirements: An Overlooked Issue in the Law of the Sea, ODIL 41 (2010), 77, 91. Even the UN DOALOS website and publications on ‘Obligations of Deposit and Due Publicity’, see, e. g., UN DOALOS, Law of the Sea Information Circular No. 28 (2008), 5 (para. 28) (LOSIC), describes the publicity obligations under Art. 16 and Art. 47 (9) as being in effect identical. 189 UN DOALOS Baselines Study (note 42), 40 (paras. 95 et seq.). 190 Such as Indonesia, see Indonesian Explanatory Note (note 6), regarding the Natuna Sea, referring to a ‘map adequately scaled’ to indicate the basepoints of the archipelagic baselines through a list of coordinates, using a geodetic datum as reference in conformity with the UNCLOS provisions. By way of contrast, the original 201 basepoints for the Indonesian straight lines laid down in 1960 decree, Indonesian Government Regulation No. 4 (1960), were listed without any specified geodetic datum. Now, the new archipelagic basepoints (each feature being identified) are plotted on 64 official charts at a scale of 1:200,000 based on WGS 1984 to satisfy the UNCLOS requirements, Patmasari/Sutsina/Hafidin (note 52), 3–5; see also Jamaica Exclusive Economic Zone Act (Baselines) Regulations of 12 October 1992, but without initial deposit of official charts with the UN; Fiji: MZN No. 60 of 17 December 2007; Sao Tome and Principe: MZN No. 17 of 7 May 1998; Papua New Guinea: MZN No. 41 of 8 October 2002 (coordinates only of the basepoints around the ‘principal archipelago’); Jamaica: MZN No. 11 of 16 October 1996; Mauritius: MZN No. 63 of 27 June 2008; and LOSIC (note 188), 14, which, as seen supra, note 116, treats the Rodriguez, Agalega, St Brandon and Tromelin basepoints as separate from those of the main island. 191 See e. g., the recent Indonesian Government Regulation No. 61 (1998), relating to the Natuna Sea on its archipelagic baselines which in para. (b) of the preamble states that publicising was done while ‘awaiting a full and complete designation of [its] […] baseline’; see also the accompanying Indonesian Explanatory Note (note 6), which said that there was ‘an urgent need for the dissemination of information on the geographical coordinates’ of the base points in the Natuna Sea; later, in March 2009, Indonesia deposited (pursuant to Art. 47 (9)) an up-dated version to take account of the Indonesian Government Regulation No. 37 (2008), in the form of a list of co-ordinates of points based on WGS84 datum, indicating that ‘illustrative maps’ would follow later; cf. Indonesia: MZN No. 67 of 25 March 2009. 192 E. g., S. 10 Bahamian Act No. 37 (1993), ‘charts to be issued indicating baselines’; S. 6 (2) Trinidad and Tobago Archipelagic Waters and Exclusive Economic Zone Act No. 24 (1986), referring to appropriate charts and coordinates, which the Minister shall (under S. 3) give ‘due publicity’ to by Notice in the Gazette; S. 8 Solomon Islands Delimitation of Marine Waters Act No. 32 (1978) (publicity in the Gazette and copy of baselines to be deposited with the UN); S. 18 C Antigua and Barbuda Maritime Areas Act No. 18 (1982). 193 See e. g. the Trinidad and Tobago Archipelagic Waters and Exclusive Economic Zone Act No. 24 (1986); and S. 11 Kiribati Marine Zones (Declaration) Act No. 7 (1983) (‘adequate publicity [of baselines] to Gazette and otherwise’). The Papua New Guinea claim of 2002 was published in its National Gazette of 2002. 194 See, e. g., US Department of State (note 70), 2–3, where the analysis says that this baseline system has legally qualifying distances of 0.38 and 99.53 NM as well as water-to-land ratios, and so seems to meet the objective criteria of Art. 47. More recent US Department of State reports in the Limits in the Seas series, such as for the Philippines and the Bahamas, have similarly noted such general legal compliance. (see supra, notes 74 and 76). 195 Cape Verde Act No. 60/IV/92 of 21 December 1992; see also Robin R. Churchill, The Impact of State Practice on the Jurisdictional Framework Contained within the LOS Convention: A Commentary, in: Alex G. Oude Elferink (ed.), Stability and Change in the Law of the Sea: The Role of the LOS Convention (2005), 119.

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States had claimed archipelagic status, and fifteen of them had actually drawn archipelagic baselines around their archipelagos.196 Of these fifteen, eleven are arguably in conformity with the UNCLOS rules, indicating that the baseline rules are generally acceptable in practice.197 One of the largest of such claims (now recently amended) is by Indonesia, an archipelago containing some 17,500 islands, with 80 per cent of the area being sea.198 As seen, State practice, in recent times at least, has shown that with few exceptions, the 52 22 or so archipelagic States which have made archipelagic claims to date, 199 have at least ostensibly tried to comply with the archipelagic baseline requirements of Art. 47 (and the accompanying publicity requirement), in some cases even revising their initial baseline system (such as particularly Indonesia and the Philippines) because of initial instances of non-compliance with the UNCLOS requirements or taking note of protests to amend archipelagic legislation (Sao Tome and Principe). Some use of non-qualifying basepoints has, though, been in evidence, such as use of 53 distant and apparently permanently underwater or distant reefs as basepoints (Dominican Republic), but these have been met, as seen, by international protest. There have been three international cases which have directly touched on archipelagic baselines issue (two of them in the context of boundary delimitation, namely the Case Concerning Maritime Delimitation and Territorial Questions Between Qatar and Bahrain of 2001,200 where Bahrain (as a multiple-island State) tried unsuccessfully to argue that it was an archipelagic State and could connect its outermost islands and LTEs in a straight baseline system;201 and the Barbados/Trinidad and Tobago Arbitration in 2006, where the arbitral tribunal referred to the ‘turning point or points of the archipelagic baseline of Trinidad and Tobago’. 202 However, in the recent Philippines v. China South China Seas Arbitration, as seen, the arbitral Tribunal considered, sua sponte, the question of whether the Spratly Islands could be enclosed within a system of straight or archipelagic baselines as a ‘single unit’ as seemingly China has claimed.203 It may be noted, incidentally, in terms of State practice and maritime boundaries involving archipelagic baselines, that it has been claimed that past delimitation treaties between neighbors may indicate international acceptance of such baselines; as, for example, those with Indonesia’s neighbors (indicating at least indirect international recognition of its archipelagic baselines).204

196

Kopela (note 67), 501. See, for a recent assessment, Lokita (note 9), 26. 198 Patmasari/Sutsina/Hafidin (note 52), 2. 199 See Kopela (note 67), 501 (footnote 2). 200 ICJ, Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment of 3 February 2009, ICJ Reports (2009), 61, 77 (para. 40). 201 Ibid., 129–130 (paras. 213 et seq.); see Yoshifumi Tanaka, Reflections on Maritime Delimitation in the Qatar/Bahrain Case, ICLQ 52 (2003) 53, 61 and 69. For other possible incidental references to archipelagic baseline issues in the ICJ and in other international case law, see the ILA Report 2014 (note 42), Annex II. 202 PCA, Arbitration between Barbados and the Republic of Trinidad and Tobago, Relating to the Delimitation of the Exclusive Economic Zone and the Continental Shelf between Them (Barbados v. Trinidad and Tobago), Award of 11 April 2006, RIAA XXVII; see Lokita (note 9), 64–65, who points out that the Tribunal in recognising the points along the baseline segment, only utilised Trinidad/Tobago’s points on ‘these lines’ and made no reference to Art. 48 in this regard. 203 See above note 43. 204 Agoes (note 35), 205–20. On the possible objection by non-archipelagic States to use of archipelagic baseline in maritime boundary delimitation, see Lokita (note 9), 63. In discussing the question of such use in international adjudication, he says this remains ‘unclear’. 197

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Article 48 Measurement of the breadth of the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf The breadth of the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf shall be measured from archipelagic baselines drawn in accordance with article 47. Bibliography: Hiran W. Jayewardene, The Regime of Islands in International Law (1989); Sora Lokita, The Role of the Archipelagic Baselines in Maritime Delimitation (2010), available at: http://www.un.org/depts/los/nippon/ unnff_programme_home/fellows_pages/fellows_papers/lokita_0910_indonesia.pdf; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993) Documents: US Department of State, Philippines: Archipelagic and other Maritime Claims, Limits in the Seas No. 142 (2014) Cases: PCA, Arbitration between Barbados and the Republic of Trinidad and Tobago, Relating to the Delimitation of the Exclusive Economic Zone and the Continental Shelf between Them (Barbados v. Trinidad and Tobago), Award of 11 April 2006, RIAA XXVII Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘The breadth […] shall be measured from archipelagic baselines’ . . . . . . . . . . . . . .

1 2 3 3

I. Purpose and Function 1

The essential purpose here is to confirm that the archipelagic baselines declared by an archipelagic State shall, as in the case of any other baseline (e. g., Arts. 5–11 and 13) generate the various types of maritime zones provided for under the UNCLOS; 1 including the territorial sea (as is implicit in Art. 3 in its reference to ‘baselines’ generally ‘determined in accordance with this Convention’), the contiguous zone, exclusive economic zone (EEZ), etc.

II. Historical Background 2

The history of this provision is straightforward and well documented, 2 being originally proposed by the Philippines in 1958 (albeit then in terms of territorial sea generation). Art. 48 had been articulated in a more expansive manner at UNCLOS III by a British proposal to include also reference to the continental shelf 3 being measured from the ‘perimeter’ of baselines; this then being extended to include the EEZ and other jurisdictions in 1974,4 thus resulting in the essential wording of the provision (as it now stands) in the Informal Single Negotiating Text in 1975.

1 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 434. 2 Ibid., 434–436. 3 Ibid. 4 Ibid., 435–436.

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III. Elements 1. ‘The breadth […] shall be measured from archipelagic baselines’ The substance of this provision is straightforward. As has been stated, Art. 48 ‘simply affirms that for an archipelagic State the archipelagic baselines serve similar purposes as the baselines determined in accordance with other rules of the [UNCLOS]’; 5 which, of course, includes the generative starting point not just of the territorial sea but also of the contiguous zone, EEZ and outer limits of the continental shelf (when appropriate under Art. 76). 6 Such straight baselines, therefore, are generically the same as any other straight baselines in the UNCLOS except insofar as they do not generate internal waters on their landward side, but instead archipelagic waters. This external zonal emphasis means, of course, that other potential baselines for generating such zones contained landward of these archipelagic baselines and enclosed by them – be they straight or normal (at the low-tide mark) – are here otiose in respect of generating zones therefrom because of their ‘regime within a regime’ enclosure situation. 7 Some archipelagic State legislative provisions make direct reference to this differentiating factor. 8 More extensive as the archipelagic baselines may be compared with other straight baselines, the added extent of EEZ jurisdiction in consequence of their use may not be significant. Where, for example, there are gaps in the peripheral archipelagic baselines which do not connect the straight lines consecutively because of other baselines interposing, such as particularly stretches of insular coastline where the baseline reverts to the lowtide mark because of the external land geography, it is of course these non-archipelagic baselines which then have an effect on external zones generated in such areas. 9 So that, in these instances, external maritime zones may not be completely, in all outer areas of an archipelagic State, generated by archipelagic baselines claimed by such a State. This is an instance where Art. 14 is reflected on combination of methods.10 Some States which have declared archipelagic baselines to date have explicitly mentioned the various zones to be generated from the new baselines.11 As far as the landward aspect of such baselines’ zone is concerned, Art. 8 (1) already excepts Part IV (‘Archipelagic States’) from the rule that waters landward of a baseline are internal; and the enclosed waters are named as ‘archipelagic waters’ under Art. 49. Thus the archipelagic baselines also serve as the inner limits of the territorial sea; and several pieces of archipelagic legislation reflect this obvious feature of such baselines. 12 5

Ibid., 434. See further Parson on Art. 76. 7 Hiran W. Jayewardene, The Regime of Islands in International Law (1989), 154, who makes this point somewhat infelicitously by referring to ‘normal baselines’. 8 See, e. g., s. 7 Tuvalu Marine Zones (Declaration) Act (1983): ‘Where archipelagic baselines are drawn, the breadth of the territorial sea shall be measured from those baselines to the extent to which they are outside the outer limits of the internal waters of Tuvalu’ (emphasis added); similarly in s. 6 (2) Kiribati Marine Zones (Declaration) Act No. 7 (1983); other legislation distinguishes for this purpose ‘archipelagic waters’ as being other than ‘internal waters’ contained within an ‘archipelagic baseline’, as in s. 3 (1) Vanuatu Maritime Zones Act, Act No. 23 (1981), cf. also s. 2 thereof referring to ‘internal waters’, i. e., those ‘contained within the innermost limits of the archipelagic waters’. 9 See s. 5 (2) and (3) Solomon Islands Delimitation of Marine Waters Act No. 32 (1978). 10 S. 1 (2)(e) Mauritius Maritime Zone Act No. 2 (2005), which expressly refers to a ‘combination of methods’ for determining baselines, including archipelagic baselines, normal baselines, seaward low-water line of reefs, straight baselines under Art. 7; see further Symmons on Art. 14 MN 3–4. 11 S. 5–8 St. Vincent and Grenadine Maritime Areas Act No. 15 (1983); s. 7 Trinidad and Tobago Archipelagic Waters and Exclusive Economic Zone Act No. 24 (1986). 12 See, e. g., the Solomon Islands Declaration of Archipelagic Baselines, Legal Notice No. 41 (1979): ‘straight [archipelagic] baselines […] for the purpose of determining the outermost limits of the archipelagic waters and the innermost limits of the territorial sea of the archipelagos […]’. 6

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4

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1

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As seen, the legislation and decrees of several archipelagic States reflect the provisions of this article, if only ex abundanti cautela. There has been no express reference to the article in any international case-law to date.13

Article 49 Legal status of archipelagic waters, of the air space over archipelagic waters and of their bed and subsoil 1. The sovereignty of an archipelagic State extends to the waters enclosed by the archipelagic baselines drawn in accordance with article 47, described as archipelagic waters, regardless of their depth or distance from the coast. 2. This sovereignty extends to the air space over the archipelagic waters, as well as to their bed and subsoil, and the resources contained therein. 3. This sovereignty is exercised subject to this Part. 4. The regime of archipelagic sea lanes passage established in this Part shall not in other respects affect the status of the archipelagic waters, including the sea lanes, or the exercise by the archipelagic State of its sovereignty over such waters and their air space, bed and subsoil, and the resources contained therein. Bibliography: Hiran W. Jayewardene,The Regime of Islands in International Law (1990); Mohammed Munavvar, Ocean States: Archipelagic Regimes in the Law of the Sea (1995); Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993) Documents: UN DOALOS, Practice of Archipelagic States (1992) Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘sovereignty of an archipelagic State extends to the waters enclosed’ . . . . . . . . . . . 2. ‘sovereignty extends to the air space over the archipelagic waters […] to their bed and subsoil’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘sovereignty is exercised subject to this Part’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. ‘The regime of archipelagic sea lanes passage […] shall not in other respects affect the status of archipelagic waters’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. State Practice and International Jurisprudence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 3 3 6 7 8 9

I. Purpose and Function 1

It has been commented that Art. 49 (1) – which describes archipelagic waters’ legal status – establishes ‘three important features’ relating to the status of archipelagic waters; namely the latter’s geographical limits, the archipelagic State’s enjoyment of sovereignty in its archipelagic waters; and that such status does not depend on any criterion of depth or distance from the 13 For example, an arbitral tribunal in discussing four of Trinidad and Tobago’s ‘turning points or points’ on that State’s archipelagic baseline made no reference to this article in the context of fixing a maritime boundary with Barbados; cf. PCA, Arbitration between Barbados and the Republic of Trinidad and Tobago, Relating to the Delimitation of the Exclusive Economic Zone and the Continental Shelf between Them (Barbados v. Trinidad and Tobago), Award of 11 April 2006, RIAA XXVII, 147; Sora Lokita, The Role of the Archipelagic Baselines in Maritime Delimitation (2010), available at: http://www.un.org/depts/los/nippon/unnff_programme_home/ fellows_pages/fellows_papers/lokita_0910_indonesia.pdf. However, the article has been referred to in domestic case law, as by the Supreme Court of the Philippines in a decision of July 2011 and applied to the Philippines’ territorial sea and its breadth: see US Department of State, Philippines: Archipelagic and other Maritime Claims, Limits in the Seas No. 142 (2014), 5.

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coast.1 Art. 49 (2) confirms that this sovereignty extends additionally to the air space over such waters and to the seabed and subsoil and resources contained therein. Art. 49 (3) confirms that this sovereignty is exercised subject to Part IV (thus hinting at third States rights in the waters as laid out in this Part). Art. 49 (4) indicates that the most serious potential ‘third State’s’ 2 rights factor in diminishing this sovereignty, namely the right of archipelagic sea lanes passage (� Art. 53), does not otherwise affect the sovereign status of these waters, including the air space over and the seabed or subsoil under the waters and their resources.

II. Historical Background The history of this article is well documented, having originated early in the UNCLOS III 2 negotiations (1973)3 and becoming refined in the Informal Composite Negotiating Text in 1975. The proviso in Art. 49 (3), that the sovereignty ‘is exercised subject to this Part [IV]’ also gelled in 1975, when the previously added proviso (i.e., the regime being also ‘subject to other rules of international law’) was dropped, seemingly to clarify that Part IV was selfcontained in respect of any provisos as to sovereignty.4 Art. 49 (4) was added later in 1977 at the instigation of Indonesia;5 and in the ICNT the word ‘archipelagic’ was added before ‘baselines’ and the phrase ‘drawn in accordance with Article 47’ was added after it as a drafting matter.

III. Elements 1. ‘sovereignty of an archipelagic State extends to the waters enclosed’ The use of the word ‘sovereignty’ to describe the archipelagic State’s title to archipelagic 3 waters reflects Art. 2 (1) and (2), with which it is intentionally harmonized. 6 It provides that, in the context of the territorial sea, 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, […]’. The latter phrase was added here as a result of archipelagic State pressure7 and to an extent reflects the fact that the initial baseline claims of Indonesia and the Philippines indicated that their enclosed waters were national or internal. 8 Art. 49 (1) also confirms for the second time in the UNCLOS (the first mention being 4 more vaguely alluded to, as seen, in Art. 2 (1)) the new UNCLOS III nomenclature in the context of archipelagic claims – ‘archipelagic waters’; and their outer limits if legally drawn, namely their enclosure by the archipelagic baselines as mentioned in Art. 47 (1). Curiously, for the sake of completeness, the paragraph does not here mention their inner limits which is an important issue, as not all waters landward of such line are archipelagic; because under Art. 50, ‘within’ such waters closing lines for ‘delimitation of internal waters’ may be drawn. Thus if interior internal waters are so claimed, they ipso jure and pro tanto reduce the 5 enclosed extent of archipelagic waters as such, though because of their baseline-locked position here they have no effect, ipso jure, in generating maritime zones because of their ‘internalized’ position in a more expansive regime. For this reason, for the sake of completeness and correctness, several archipelagic States have distinguished (to a greater or lesser 1 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 438, 441. 2 By this phrase is meant simply States other than the archipelagic State itself. 3 Nordquist/Nandan/Rosenne (note 1), 438–441. 4 Ibid., 440. 5 Ibid., 440–441. 6 Ibid. 7 Muhammad Munavvar, Ocean States: Archipelagic Regimes in the Law of the Sea (1995), 156. 8 Hiran W. Jayewardene, The Regime of Islands in International Law (1989), 155.

Symmons

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Art. 49

6–8

Part IV. Archipelagic states

degree) between these two inner regimes to the territorial sea belt. 9 The phrase contained in Art. 49 (1) stating ‘regardless of [such waters] depth or distance from the coast’ adds nothing substantive to the sovereignty mentioned, as this would in any event apply landward of the claimed archipelagic baselines.

2. ‘sovereignty extends to the air space over the archipelagic waters […] to their bed and subsoil’ 6

The affirmation that the sovereignty mentioned in Art. 49 (1) also applies to the airspace over the waters, and to the seabed and subsoil (and the natural resources therein) is again a statement of the obvious; and reflects again the case of territorial sea sovereignty under Art. 2 (2), albeit specifically in this context including ‘the resources contained therein’, a phrase absent from Art. 2(2). It reflects and emphasises, however, the strong economic interest of archipelagic States in the enclosed sea resources as a reason for claiming archipelagic waters. 10 Thus several States which have claimed archipelagic waters have included this aspect in their legislation.11

3. ‘sovereignty is exercised subject to this Part’ 7

This paragraph indicates that the sovereignty mentioned in Art. 49 (1) is not unrestrained. The restraints here – aimed at protecting the rights and interests of foreign States – are expressly confined to those mentioned in Part IV alone and not other articles of the UNCLOS. Hence they include, for such States, guaranteed rights of passage (� Art. 52), overflight, and other traditional rights and legitimate interests of immediately adjacent neighboring States (� Arts. 47 (6) and 51 (1))12 and certain existing rights – including existing agreements with other States, as well as rights relating to laid cables under Art. 51 (2).13 The nature of these limitations (the first set of which reflected concern from affected States such as Malaysia and Thailand at UNCLOS III) on archipelagic State sovereignty in its waters differentiates the sui generis status of the regime here from that of internal waters. In the latter instance, the only proviso to sovereign coastal State control (in internal waters) is mentioned in the context of straight baselines stricto sensu under Art. 8 (2) dealing with preserved rights of innocent passage in the enumerated instances. 14

4. ‘The regime of archipelagic sea lanes passage […] shall not in other respects affect the status of archipelagic waters’ 8

This provision – based on a 1977 proposal by Indonesia at UNCLOS III – shadows the similar provision relating to the analogous situation of straits and foreign ships passage in Art. 34 (1)15 (except that it again adds the extra phrase here in the archipelagic context of ‘and the resources contained therein’). Curiously the wording here only refers to the special right of ‘archipelagic sea lanes passage’ and not the more general right of innocent passage mentioned in Art. 52. Its aim – as the phrase ‘in other respects’ in Art. 49 (4) indicates – was to preserve the gist of the Art. 49 (1) ‘sovereignty’ provision (in the face of such a 9 See, e. g., s. 6 Solomon Islands Delimitation of Marine Waters Act No. 32 (1978), referring to ‘areas of sea landward of any straight archipelagic baselines […] up to the seaward limit of internal waters’ (emphasis added). 10 Nordquist/Nandan/Rosenne (note 1), 441. 11 See infra, note 18. 12 The reference back to Art. 49 (3) in Art. 51 (1), specifying certain foreign State rights in archipelagic waters, starts with the caveat ‘[w]ithout prejudice to Article 49 […]’. 13 Jayewardene (note 8), 156; Nordquist/Nandan/Rosenne (note 1), 439–440. 14 See Jayewardene (note 8), 155–156. 15 Nordquist/Nandan/Rosenne (note 1), 442.

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Delimitation of internal waters

significant foreign ships and aircraft right of passage through or over archipelagic waters): for example, through retention of the archipelagic State’s residual rights to control such passage (� Art. 53 (1)), and impliedly also to control the other ‘foreign-State-granted rights’ of a non-navigational nature in such waters.16 Some archipelagic State legislation makes direct reference to aspects of existing third State rights not affecting their sovereignty.17

5. State Practice and International Jurisprudence Most of the archipelagic claims to date emphasise that the proclaimed archipelagic waters 9 are under their sovereignty, often repeating the very wording of Art. 49 (1). 18 The wording of Art. 49 (4) is somewhat reflected in Art. 2 of the 1982 Malaysia/Indonesia Treaty wherein Malaysia, for its part, is to ‘recognize and respect’ this legal regime ‘under which [Indonesia] has sovereignty […]’.19 There has been no direct reference to this article in international case-law to date.

Article 50 Delimitation of internal waters 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. Bibliography: Peter B. Beazley, Maritime Limits and Baselines: A Guide to their Delineation (3rd edn. 1987); Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); Robert D. Hodgson/Robert Smith, The Informal Single Negotiating Text: A Geographical Perspective, ODIL 3 (1976), 225–259; Hiran W. Jayewardene, The Regime of Islands in International Law (1990); Sophia Kopela, 2007 Archipelagic Legislation of the Dominican Republic: An Assessment, IJMCL 24 (2009), 501–533; Mohammed Munavvar, Ocean States: Archipelagic Regimes in the Law of the Sea (1995); Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); J. Ashley Roach/ Robert Smith, United States Responses to Excessive Maritime Claims (2nd edn. 1996); Clive R. Symmons, The Maritime Zones of Islands in International Law (1979) Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Application with Regard to Internal Waters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Rights in Archipelagically-Enclosed Internal Waters. . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 5 5 9

16

See Munavvar (note 7), 156–157. S. 9 (1) Trinidad and Tobago Archipelagic Waters and Exclusive Economic Zone Act No. 24 (1986): ‘Without prejudice to section 5 [i. e., the ‘sovereignty’ claim], Trinidad […] shall respect existing agreements’. 18 E. g., preamble to the Cape Verde Decree-Law No. 126/77 of 31 December 1977: the ‘fundamental interest of the nation with regard to living and non-living resources’; and Art. 4 thereof, ‘sovereignty’ over all the archipelagic waters. Under S. 1 of the Islamic Federal Republic of the Comoros, Act No. 82-005 (1982), relating to the delimitation of the maritime zones, sovereignty includes airspace/seabed subsoil in such waters; see also s. 4 Sao Tome and Principe Decree-Law No. 14/78 (1978); the Seychelles Maritime Zones Act No. 2 (1999), which emphasises that its ‘sovereign jurisdiction’ over archipelagic waters ‘extends and has always extended to’ these waters (emphasis added); see similarly, s. 6 Mauritius Maritime Zone Act No. 2 (2005). 19 Treaty between Malaysia and the Republic of Indonesia Relating to the Legal Regime of Archipelagic State and the Rights of Malaysia in the Territorial Sea and Archipelagic Waters as well as in the Airspace above the Territorial Sea, Archipelagic Waters and the Territory of the Republic of Indonesia Lying between East and West, 25 February 1982, reproduced in: UN DOALOS, Practice of Archipelagic States (1992), 144. 17

Symmons

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Art. 50

1–4

Part IV. Archipelagic states

I. Purpose and Function Art. 50 permits an archipelagic State to draw further straight baselines, within its claimed peripheral straight archipelagic baselines already drawn in accordance with Art. 47, for the purpose of closing off, as internal, the waters as here referred to: namely mouths of rivers (Art. 9), of bays (Art. 10) and of ports and harbors (Art. 11). This concession to an archipelagic State to claim internal waters in addition to archipelagic waters within the outer baseline for the territorial sea results in a sort of ‘regime within a regime’ situation (which is noted in the definition of ‘internal waters’ in Art. 8 (1), where the definition excludes, by necessary implication, archipelagic waters on the landward side of the territorial sea baseline being considered internal as is the normal rule.1 2 Here the purpose is to delimit the boundaries (as it were) between the two types of ‘internalised’ waters which now exist in the law of the sea within territorial sea baselines, as is now reflected in some archipelagic State legislation.2 In the two types of such enclosed waters, the legal regime differs in each in respect of other States’ rights, such as navigation and overflight. Furthermore, the internal water areas have no effect here as baselines in the generation of the territorial sea and other zones, as would normally be the case. 3 1

II. Historical Background In 1974 at UNCLOS III the proposal for archipelagic States to close off internal waters within their archipelagic waters was first introduced, but then was referring only to the Art. 4 Convention on the Territorial Sea and Contiguous Zone (CTSCZ) situation of straight baselines stricto sensu.4 In 1975 (in the ‘18 Principles’ proposal of the Bahamas), this reference to internal water delimitation was changed to include the articles dealing with ‘river closings, bay closings and permanent outer harbour works’;5 and this formulation, as it now appears in Art. 50, was finalised in the Informal Single Negotiating Text, which also added the rider to (now) Art. 8 (1) to clarify that the status of the residual enclosed waters under (now Part IV) is not that of internal waters, but of archipelagic waters. 4 The important omission in the listed situations is the implicit exclusion of Art. 7-type waters as permissible internal waters within archipelagic waters. 6 It may be noted in this connection that there was much discussion at UNCLOS III as to whether the latter type of baselines (and internal waters) was apposite in the archipelagic waters situation; and a significant change came in the 1976 Revised Single Negotiating Text where the right to utilise such baselines in archipelagic waters was dropped because of its inherent inapplicability to such waters.7 3

1 See Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 445. 2 See, e. g., s. 6 Seychelles Maritime Zones Act No. 2 (1999), which says that the ‘archipelagic waters […] comprise the areas of sea on the landward side of any straight archipelagic baselines […] up to the seaward limit of the internal waters’ (emphasis added). One piece of legislation of the Dominican Republic, however, appears to treat de facto-claimed internal waters as if they are also ‘archipelagic’, see infra, note 17. 3 S. 7 (2) Tuvalu Marine Zones (Declaration) Act (1983), where archipelagic baselines are drawn, it is stated that the ‘territorial sea shall be measured from those base-lines to the extent to which they are outside the limits of the internal water‘(emphasis added); and s. 3 (2) Vanuatu Maritime Zones Act No. 23 (referring to the ‘innermost limits of archipelagic waters’ being a low-water line or bay closing line, or closing line of a river flowing into the sea (emphasis added). 4 Nordquist/Nandan/Rosenne (note 1), 444. 5 Ibid., 444–445. 6 Ibid., 445. 7 For a full discussion of this process, Clive R. Symmons, The Maritime Zones of Islands in International Law (1979), 65–67.

380

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Delimitation of internal waters

5–7

Art. 50

III. Elements 1. Application with Regard to Internal Waters Only three geographical situations are expressly mentioned where archipelagic States 5 may close off waters otherwise contained within their archipelagic waters, namely river mouths (Art. 9), bays (Art. 10) and ports and harbors under Art. 11. Each of these enclosed areas has the separable and distinct status of internal waters under Art. 8. Archipelagic States have no right to further claim internal waters under Art. 7 if they have deeply indented coastlines or off-shore clusters of islands within claimed archipelagic waters, 8 which regime is effectively overridden and merged with the archipelagic waters regime. 9 The lack of reference to other special baseline provisions indicates that they, too, may be prima facie inapplicable within an archipelagic waters regime.10 Problematic here, though, is whether Art. 6 applies internally respecting ‘fringing reefs’, the mouths of which may be implicitly closed off to create lagoons of internal waters behind reef closing lines, 11 as this article is not here listed.12 Some commentators have viewed waters enclosed in lagoons lying inside reefs as remaining archipelagic,13 even if logically they should be internal, as some archipelagic States seem to have claimed.14 Other commentators have viewed the waters of lagoons as being internal, and so implicitly included in this article. 15 The reference to a closing line being permissible in the case of Art. 11, 16 is, of 6 interpretative importance in the case of that article entitled ‘Ports’, which provision there gives no explicit authority for closing off harbors or ports with a straight baseline between ‘outermost permanent harbor works’. As such the wording of Art. 50 implies that in such cases generally port and harbor entities can be ‘straight-baselined’ and contain internal waters. Just as in the case of any other straight baselines, in the case of such claims within 7 archipelagic waters other States may protest against the legality of such enclosed internal 8 Such States may theoretically lose this right to certain external areas to the archipelagic baselines by virtue of choice of archipelagic State status unlike non-archipelagic insular States with such shorelines. 9 See Symmons (note 7), 65; Hiran W. Jayewardene, The Regime of Islands in International Law (1989), 154– 155, suggests the applicability of Art. 7 is in any case of ‘little practical significance’, because an archipelagic State would be obliged to provide for pre-existing navigation rights even within internal waters enclosed under Art. 7. 10 Such as Art. 13 relating to low-tide elevations (LTE), see Nordquist/Nandan/Rosenne (note 1), 445; though its omission is explicable on the more general grounds that LTEs do not technically create ‘closing lines’ to enclose ‘internal waters’ on their landward sides, see further Symmons on Art. 13 MN 30. Thus, theoretically, where the peripheral linkage of archipelagic baselines is not composed of continuous straight lines, but punctuated with other peripheral baselines (like the low-tide mark along lengthy outer islands) which there form the actual baselines, similarly, on the interior side of outer islands, the low-tide mark (or other baseline used) will effectively form also the exterior limit of archipelagic waters in those particular areas inside landfall; see, e. g., s. 3 St. Vincent and Grenadine Maritime Areas Act No. 15 (1983), defining its internal waters as waters landward of the archipelagic closing lines ‘up to the low water mark of all the island areas […]’. 11 Mohammed Munavvar, Ocean States: Archipelagic Regimes in the Law of the Sea (1995), 152, who opines such waters can only be classified as ‘internal’. 12 J. Ashley Roach/Robert Smith, United States Responses to Excessive Maritime Claims (2nd edn. 1996), 223; Robert Hodgson/Robert Smith, The Informal Single Negotiating Text: A Geographical Perspective, ODIL 3 (1976), 225. 13 Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 125. 14 See Fiji’s practice, s. 3 Fiji Marine Spaces Act No. 18 (1977), where internal waters are included within the seaward low-water line of a reef; also s. 4 (2) Kiribati Marine Zones (Declaration) Act No. 7 (1983), and its definition of internal waters within closing lines of ‘lagoons’; s. 5 Tuvalu Marine Zones (Declaration) Act (1983); and s. 2 Maldives Maritime Zones Act No. 6/96 (1996); such waters may possibly also qualify as ‘land’ for the water/land ratio test, see further Symmons on Art. 47 MN 48–49. 15 Peter B. Beazley, Maritime Limits and Baselines: A Guide to their Delineation (3rd edn. 1987), 11. 16 Though few pieces of archipelagic legislation expressly claim such baseline rights, but see s. 2 (2) Solomon Islands Delimitation of Marine Waters Act No. 32 (1978) and s. 8 Trinidad and Tobago Territorial Sea Act No. 38 (1969).

Symmons

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Art. 51

Part IV. Archipelagic states

waters, particularly, of course, because there may be no rights of passage in those waters. 17 Indeed Art. 52 (1) relating to the right of innocent passage in archipelagic waters states that this is ‘without prejudice to Article 50’. Thus, for example, the joint protest of the UK and USA relating to the Dominican Republic’s archipelagic baselines claim in 2007, included a reference to certain bodies of waters claimed as internal or as historic bays, within the archipelagic claim, which pending examination, could not be accepted by the two States as ‘valid under international law’.18 8 The provisions of Art. 16 on publicity relating to relevant baselines apply equally in the context of internalised straight baselines under this article, even though, ex hypothesi, such baselines here generate no maritime zones as they normally would. Furthermore, this is an obvious instance under Art. 16 where a State has to publicise the actual baselines of this nature, as there is here no alternative of merely publicising the ‘limits derived’ from such baselines in view of the aforementioned non-generative zonal capacity of these ‘regimewithin-a-regime’ lines.

2. Rights in Archipelagically-Enclosed Internal Waters Here the status is exactly the same as indicated implicitly in Art. 8, so that all such waters are (in contrast as seen to archipelagic waters) completely under the sovereignty of the archipelagic State, with no rights of navigation for other States such as innocent passage or archipelagic sea lanes passage (with the latter in essence only relating to archipelagic waters under Arts. 52 and 53); nor do neighboring States under Arts. 47 (6) and 51 (1) explicitly have any guaranteed rights in such internal waters. 10 Several existing pieces of archipelagic waters legislation by archipelagic States make claims, explicitly or implicitly, to internal waters (as referred to in Art. 50) within their claimed archipelagic waters.19 9

Article 51 Existing agreements, traditional fishing rights and existing submarine cables 1. Without prejudice to article 49, an archipelagic State shall respect existing agreements with other States and shall recognize traditional fishing rights and other legitimate activities of the immediately adjacent neighbouring States in certain areas falling within archipelagic waters. The terms and conditions for the exercise of such rights and activities, including the nature, the extent and the areas to which they apply, shall, at the request of any of the States concerned, be regulated by bilateral agreements between them. Such rights shall not be transferred to or shared with third States or their nationals. 2. An archipelagic State shall respect existing submarine cables laid by other States and passing through its waters without making landfall. An archipelagic State shall permit the 17 See Sophia Kopela, Archipelagic Legislation of the Dominican Republic: An Assessment, IJMCL 24 (2009), 501, 517, who points out that this status may be changed back to archipelagic waters by a provision under s. 6 (2) of Dominican Republic Act No. 66/07 (2007). Thus s. 6 of this legislation lists all the ‘bays’ which are under its ‘full sovereignty’ or (under Art. 7) are considered to be ‘historic’, but then, somewhat paradoxically, goes on to state that all such ‘internal waters’ shall be considered ‘archipelagic waters, subject to the Dominican State’ (emphasis added). 18 Text of a Joint Demarche Undertaken by the United Kingdom of Great Britain and Northern Ireland and the United States of America in Relation to the Law of the Dominican Republic, Number 66-07 of 22 May 2007, 18 October 2007. 19 See, e. g., s. 2 B Antigua and Barbuda Maritime Areas Act No. 18 (1982): ‘other than internal waters on the landward side of the baselines’; s. 8 Trinidad and Tobago Archipelagic Waters and Exclusive Economic Zone Act No. 24 (1986); and s. 4 of the Philippines Maritime Zones Act (‘closing lines for the delimitation of internal waters shall be drawn pursuant to Art. 50’).

382

Barnes/Massarella

Existing agreements, traditional fishing rights and existing submarine cables

1–2

Art. 51

maintenance and replacement of such cables upon receiving due notice of their location and the intention to repair or replace them. Bibliography: Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); Bin Ahmad Hamzah, Indonesia’s Archipelagic Regime: Implications for Malaysia, Marine Policy 8 (1984), 30–43; Hasjim Djalal, Indonesia and the New Extensions of Coastal State Sovereignty and Jurisdiction at Sea, in: Douglas M. Johnston (ed.), Regionalisation of the Law of the Sea: Proceedings of the 11th Conference of the Law of the Sea Institute (1977), 283–293; Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice, 1951–54: General Principles, BYIL 30 (1953), 1; Hiran W. Jayewardene, The Regime of Islands in International Law (1990); Mohamed Munavvar, Ocean States: Archipelagic Regimes in the Law of the Sea (1995); Myron H. Nordquist/Satya N. Nandan/ Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993) Documents: UN DOALOS, Practice of Archipelagic States (1992) Cases: PCA, Award of the Arbitral Tribunal in the second stage of the proceedings between Eritrea and Yemen (Maritime Delimitation), Award of 17 December 1999, RIAA Vol. XXII, 335; PCA, In the Matter of the South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China), Award of 12 July 2016, available at: http://www.pcacases.com/web/view/7; PCA, Southern Bluefin Tuna Case (Australia and New Zealand v. Japan), Jurisdiction and Admissibility, Award of 4 August 2000, RIAA XXIII, 1 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘Without prejudice to article 49’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘shall respect existing agreements’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘shall recognize traditional fishing rights and other legitimate activities of the immediately adjacent neighbouring States’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. ‘regulated by bilateral agreements’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. ‘Such rights shall not be transferred’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. ‘shall respect existing submarine cables’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 6 6 7 9 13 14 15

I. Purpose and Function Art. 51 was intended to preserve the existing rights of neighbouring States in archipelagic 1 waters following the acceptance of the concept of the archipelagic State and the extension of archipelagic State control over said waters. It is a framework provision that reserves the nature and operation of more detailed rights and duties to localised agreements. Thus, Art. 51 (1) cl. 1 requires archipelagic States to respect pre-existing agreements with other States, and to recognise ‘traditional fishing rights’ and ‘other legitimate activities’ of ‘the immediately adjacent neighbouring States’. Art. 51 (1) cl. 2 also expects archipelagic States and States holding such rights to be prepared to negotiate bilateral agreements setting out the terms and conditions of their exercise at the instance of either party. Art. 51 (1) cl. 3 limits such rights by providing that they shall not be transferred to, or to be shared with third parties. Art. 51 (2) provides guarantees for pre-existing submarine pipelines and cables and requires archipelagic States to respect existing submarine cables, and to allow their maintenance.

II. Historical Background NORDQUIST et al. note that Art. 51 has its origins in one of several proposed drafts compiled 2 by Sub-Committee II of the Sea-Bed Committee, and annexed to the Committee’s 1973 Report.1 That draft was anonymous and listed as ‘Variant F’. It was worded in such a way that an archipelagic State enclosing areas as archipelagic waters that were previously high 1 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 448.

Barnes/Massarella

383

Art. 51

3–5

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seas was required to ‘enter into consultation, at the request of any other State, with a view to safeguarding the rights and interests of such other States regarding any existing uses of the sea in such areas […] including inter alia, fisheries, submarine cables and pipelines.’ 2 3 NORDQUIST et al. record that at the outset of the UNCLOS III negotiations several archipelagic States ‘indicated a willingness’ to address the question of access to historical fishing rights and to submarine cables and pipelines.3 Indonesia, for example, noted in the 36th meeting of the Second Committee that it was ‘aware of the needs of its immediate neighbours and assured them that […] it would […] seek a mutually acceptable accommodation of their interests.’4 Noting that they were ‘aware of the possible problem of traditional fishing of immediately adjacent neighbouring countries in Indonesian waters’. 5 Nevertheless, the only proposal to implement that willingness was put forward by Thailand. 6 Art. 1 of the Thai draft proposed that where archipelagic waters ‘or territorial waters measured therefrom’ incorporated areas that had previously been high seas, the archipelagic State should give ‘special consideration to the interests and needs of its neighbouring States with regard to the exploitation of living resources in these areas’ and should accordingly enter into either regional or bilateral agreements ‘prescribing modalities’ for their exercise. 7 Indonesia expressed reservations concerning the Thai proposal, including the fact that it did not have regard to whether the ‘interests and needs’ of neighbouring States were necessarily ‘traditional, legitimate or reasonable’.8 Art. 1 of the Thai proposal and Variant F were both included in the Main Trends Working Paper of the Second Committee. 9 4 Following further discussion, a substantially modified text was included as Art. 122 in the Informal Single Negotiating Text Part II at the Third Session in 1975.10 Art. 122 read as follows: ‘Archipelagic States shall respect existing agreements with other States and shall recognize traditional fishing rights of the immediately adjacent neighbouring States in certain areas of the archipelagic waters. The terms and conditions of the exercise of such rights, including the extent of such rights and the areas to which they apply, shall, at the request of any of the States concerned, be regulated by bilateral agreements between them. Such rights shall not be transferred to or shared with third States or their nationals.’

NORDQUIST et al. note that this text was less specific than both Variant F and the Thai draft in respect of the rights protected.11 It did however introduce the concept of ‘traditional fishing rights’, thereby taking into account the Indonesian concerns with the Thai draft. 5 At the Fourth Session, Indonesia and Singapore proposed a slightly revised version of Art. 122.12 The main changes in the draft were the introduction of the caveat ‘without prejudice’ to the archipelagic State’s sovereign rights over its archipelagic waters, and the addition of the words ‘and other legitimate activities’ in addition to traditional fishing 2 Sea-Bed Committee, Report of Sub-Committee II, Appendix VI: Variants Submitted by Delegations, GAOR 28th Sess. Suppl. 21 (A/9021-IV), 156 (Item 16: Archipelagos, Variant F). 3 Nordquist/Nandan/Rosenne (note 1), 448–449. 4 Statement of Mr Djalal (Indonesia): Second Committee UNCLOS III, 36th Meeting, UN Doc. A/CONF.62/ C.2/SR.36 (1974), OR II, 260 (para. 5). 5 Ibid. 6 Second Committee UNCLOS III, Thailand: Draft Articles on Archipelagos, UN Doc. A/CONF.62/C.2/L.63 (1974), OR III, 233. 7 Ibid., first draft article. 8 Statement of Mr Wisnoemoerti (Indonesia): Second Committee UNCLOS III, 45th Meeting, UN Doc. A/ CONF.62/C.2/SR.45 (1974), OR II, 298 (para. 3). 9 UNCLOS III, Statement of Activities of the Conference During Its First and Second Sessions, UN Doc. A/ CONF.62/L.8/REV.1 (1974), OR III, 93, 137 (Provision 213). 10 UNCLOS III, Informal Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/PART II (1975), OR IV, 152, 169 (Art. 122). 11 Nordquist/Nandan/Rosenne (note 1), 450. 12 Second Committee UNCLOS III, Informal Proposal Indonesia and Singapore: Article 122 (ISNT II) (1976, mimeo.), reproduced in: Renate Platzo¨der (ed.), Third United Nations Conference on the Law of the Sea: Documents, vol. IV (1983), 339.

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rights. This was followed by a proposal by Japan to add a second paragraph to the draft article requiring archipelagic States to ‘respect existing submarine cables laid by other States and passing through the archipelago’, and not to hamper their maintenance or replacement.13 Both of these proposals were incorporated into a new draft Art. 123 in the Revised Single Negotiating Text (RSNT).14 When the article appeared in the RSNT it was substantively identical to present Art. 51. It was renumbered Art. 51 in the Informal Composite Negotiating Text and only underwent minor drafting changes pending its final adoption.15

III. Elements 1. ‘Without prejudice to article 49’ Art. 51 starts with the qualification that it is ‘without prejudice’ to Art. 49. Art. 49 states 6 that the archipelagic State enjoys sovereignty over its archipelagic waters. Although Art. 51 provides for certain exceptions to the absolute sovereignty of the archipelagic State, the fact that it is expressed as being without prejudice generally to Art. 49 underscores that the default position is that archipelagic States enjoy sovereignty over their archipelagic waters (including airspace, the water column and the seabed). This is reflected in the provisions of domestic law instruments and bilateral agreements on the status of archipelagic waters.16

2. ‘shall respect existing agreements’ Art. 51 (1) requires archipelagic States to respect existing agreements with other States. 7 CHURCHILL & LOWE observe that this provision was ‘presumably inserted to avoid any possible conflict between an archipelagic State’s rights under UNCLOS and its obligations under prior agreements’.17 There are few such agreements in place, and most are limited to delimitation or the process for dealing with transboundary hydrocarbon deposits.18 JAYEWARDENE notes this provision is superfluous given the general norm of pacta sunt servanda.19 Both NORDQUIST 13 Second Committee UNCLOS III, Informal Proposal Japan: Article 122 (ISNT II) (1976, mimeo), reproduced in: Platzo¨der (note 12), 339. 14 UNCLOS III, Revised Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/REV.1/PART II (1976), OR V, 151, 171 (Art. 123). 15 UNCLOS III, Informal Composite Negotiating Text, UN Doc. A/CONF.62/WP.10 (1977), OR VIII, 12 (Art. 51). 16 Antigua and Barbuda: S. 9 Maritime Areas Act 1982 (Act No. 18 of 17 August 1982); Bahamas: S. 9. Archipelagic Waters and Maritime Jurisdiction Act 1993 (Act No. 37 of 1993); Cape Verde: Art. 3 Law No. 60/ IV/92 of 21 December 1992; Comoros: Art. 1 Law No. 82-005 relating to the Delimitation of the Maritime Zones of the Islamic Federal Republic of the Comoros of 6 May 1982; Dominican Republic: Art. 3 Act 6607 of 22 May 2007; Fiji: S. 9 Marine Spaces Act No. 18 of 1977; Indonesia: Art. 2 Act No. 6 of 8 August regarding Indonesian Archipelagic Waters; Mauritius: S. 6 Maritime Zone Act 2005 (Act No. 2 of 2005); S. 7 Papua New Guinea: National Seas Act 1977; Philippines: Art. 1 Constitution of the Republic of the Philippines 11 February 1987; Sa˜o Tome´ et Prı´ncipe: Art. 4 Decree Law No. 14/78 16 June 1978; Seychelles: S. 7 Maritime Zones Act 1999 (Act No. 2 of 1999), as amended by the Maritime Zones (Amendment) Act 2009 (Act No. 5 of 2009); Solomon Islands: S. 9 Delimitation of Marine Waters Act 1978 Act No. 32 of 21 December 1978; Trinidad and Tobago: S. 5 Archipelagic Waters and Exclusive Economic Zone Act 1986 Act No. 24 of 11 November 1986; Tuvalu: S. 13 Maritime Zones Act of 4 May 2012; Vanuatu: S. 2 Maritime Zones Act No. 6 of 2010. See also Art. 2 (1) of the Treaty between Malaysia and the Republic of Indonesia relating to the Legal Regime of Archipelagic State and the Rights of Malaysia in the Territorial Sea and Archipelagic Waters as well as in the Airspace above the Territorial Sea, Archipelagic Waters and the Territory of the Republic of Indonesia Lying between East and West Malaysia, 25 February 1982, reproduced in: UN DOALOS, Practice of Archipelagic States (1992), 144 (hereafter Jakarta Treaty 1982). 17 Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 125. 18 For a record of such agreements, see UN DOALOS (note 16). 19 Hiran W. Jayewardene, The Regime of Islands in International Law (1990), 157.

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et al. and CHURCHILL & LOWE state that Art. 51 (1) is an exception to the general rule contained in Art. 311.20 More specifically, it is excluded by virtue of Art. 311 (5), which provides that Art. 311 ‘does not affect international agreements expressly permitted or preserved by other articles of the Convention’. This may generate interesting questions concerning the compatibility of other agreements and UNCLOS. If other such agreements are excluded from the compatibility requirement of Art. 311 (2), then this may undermine the framework function of UNCLOS. Whilst it is desirable that conflicts between norms be avoided, for example through the lex specialis rule restated in Art. 311 (5), it remains desirable that other agreements be interpreted or drafted in a manner compatible with UNCLOS as far as possible.21 Although Art 51 is exempt from the requirement of compatibility, it does not preclude recourse to Art. 51 when examining the meaning of the ‘lex specialis’ agreement. Given that Art. 51 seeks to protect the rights of other States, an agreement which establishes more generous rights for third States should be respected as a compatible inter se agreement. On the other hand, if an existing agreement provides for less generous rights, then its compatibility with UNCLOS may be questioned. The main instrument of concern here is the Jakarta Treaty 1982, which was adopted prior to UNCLOS entering into force.22 It provides for a narrower, 20 NM navigation corridor than the 50 NM corridor provided for under Art 53 (5).23 Since Art. 311 absolutely protects the rights of other States Parties, it is clear the Jakarta Treaty concerns only the legal position of Malaysia and Indonesia. Neither Malaysia nor Indonesia can challenge its compatibility with UNCLOS. 8 NORDQUIST et al. note that there is a potential overlap between Art. 51 (1) and Art. 47 (6) which preserves pre-existing rights in archipelagic waters which lie ‘between two parts of an immediately adjacent neighbouring State’.24 Consequently, certain pre-existing rights enjoyed by such States in archipelagic waters may be protected by both Art. 51 (1) and Art. 47 (6). In 1982, Indonesia and Malaysia adopted a bilateral agreement preserving Malaysia’s rights in such waters.25

3. ‘shall recognize traditional fishing rights and other legitimate activities of the immediately adjacent neighbouring States’ 9

Art. 51 (1) requires archipelagic States to recognise ‘traditional fishing rights’. N ORDQUIST et al. observe that there is ‘nothing to indicate’ whether the term ‘traditional’ merely refers to rights that have been customarily exercised, or whether it relates to the means or method of the fishing activities.26 More generally, FITZMAURICE has categorized such rights as acquired rights arising when the ‘fishing vessels of a given country have been accustomed from time immemorial, or over a long period, to fish in a certain area’.27 In practice it seems that the term is applied in a broad sense. For example, in the Jakarta Treaty 1982, ‘traditional fishing’ is defined as ‘fishing by Malaysian traditional fishermen using traditional methods in the traditional areas’ of the relevant part of the Indonesian archipelagic waters. 28 Although not 20 Nordquist/Nandan/Rosenne (note 1), 453; Churchill/Lowe (note 17), 125; see also Matz-Lu ¨ck on Art. 311 MN 18–19. 21 This appears to be implicit in the reasoning of the PCA, Southern Bluefin Tuna Case (Australia and New Zealand v. Japan), Jurisdiction and Admissibility, Award of 4 August 2000, RIAA XXIII, 1, 24, 33 and 41. 22 One might distinguish this situation from that one under discussion in the PCA Southern Bluefin Tuna Case (note 21), since that case concerned an agreement intended to implement UNCLOS, and not one predating UNCLOS. Hence the tribunal’s reluctance to regard an implementing agreement as incompatible. 23 Art. 7 Jakarta Treaty 1982. See further Bin Ahmed Hamzah, Indonesia’s Archipelagic Regime: Implications for Malaysia, Marine Policy 8 (1984), 30, 37–42. 24 Nordquist/Nandan/Rosenne (note 1), 452. 25 See Art. 2 (2) Jakarta Treaty 1982. 26 Nordquist/Nandan/Rosenne (note 1), 453. 27 Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice, 1951–54: General Principles, BYIL 30 (1953), 1, 51. 28 See Art. 1 (7) Malaysia/Indonesia Treaty 1982.

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dealing specifically with archipelagic waters, an equally liberal approach to the idea of traditional fishing is taken in a 1978 agreement between Australia and Papua New Guinea. 29 In a more detailed study, DJALAL indicates four criteria that traditional fishing rights may have to satisfy. These are: exercise of the rights for a sufficient duration of time, thereby excluding newcomers; the use of traditional fishing equipment; a relatively small catch size, as a probable consequence of using traditional gear; and an ability to observe the actual practice given its duration and frequency, thereby distinguishing traditional fishing rights from long-standing rights of general enjoyment, such as freedom of fishing on the high seas.30 These factors are not legally binding, and the enjoyment of such rights will depend on how the concerned States negotiate the terms of traditional fishing rights under a bilateral agreement. International tribunals have ruled on the meaning of traditional fishing rights, sometimes 10 also referred to as artisanal fishing. In Eritrea v. Yemen, the Tribunal referred to the FAO’s studies on artisanal fishing to identify it as fishing with vessels equipped with small engines and simple gear.31 More specifically it was fishing done in a way that contrasts with industrial fishing or large scale commercial fishing.32 This approach was reaffirmed in the South China Seas Arbitration, where the Tribunal stated: ‘Its distinguishing characteristic will always be that, in contrast with industrial fishing, artisanal fishing will be simple and carried out on a small scale, using fishing methods that largely approximate those that have historically been used in the region.’33

The Tribunal was unwilling to provide a more precise definition or ‘threshold’ as to what constitutes traditional fishing, indicating that this will be a relative concept, contingent upon local circumstances. The protection afforded to traditional fishing rights is derived from the notion of vested rights. These are rights akin to property and which attach to individuals or communities, not States.34 As such they are different from State claims to historic title. That said, the continuing enjoyment of such rights will ultimately depend upon the States, since Art. 51 envisages the future conduct of such rights to be regulated through bilateral agreement. Art. 51 (1) also requires the archipelagic State to recognise ‘other legitimate activities’ of 11 immediately adjacent neighbouring States. The meaning of this phrase is unclear. It must exclude rights to exploit other non-living resources, as this would be inconsistent with the archipelagic States sovereignty under Art. 49. NORDQUIST et al. state that legitimate activities include ‘military uses, such as training, as they had been legitimately exercised before the archipelagic regime […] was established’.35 In practice such activities will be limited because, as in the case of traditional fishing rights, the nature and scope of such activities will depend upon bilateral agreements. Thus, the Jakarta Treaty 1982 provides that Malaysia enjoys certain rights of access and communication for ships and aircraft within specified corridors and rights to access and maintain submarine pipelines and cables. 36 According to the treaty, Malaysia also has interests in promoting and maintaining law and order, undertaking search and rescue operations, and conducting marine scientific research. 37 However, these activities 29 See Art. 1 (1) of the Treaty between Australia and the Independent State of Papua New Guinea concerning Sovereignty and Maritime Boundaries in the Area between the Two Countries, including the Area known as Torres Strait, and Related Matters, 18 December 1978, reproduced in: UN DOALOS (note 16), 178. 30 Hasjim Djalal, Indonesia and the New Extensions of Coastal State Sovereignty and Jurisdiction at Sea, in: Douglas M. Johnston (ed.), Regionalisation of the Law of the Sea: Proceedings of the 11th Conference of the Law of the Sea Institute (1977), 283, 284. 31 PCA, Award of the Arbitral Tribunal in the second stage of the proceedings between Eritrea and Yemen (Maritime Delimitation), Award of 17 December 1999, RIAA Vol. XXII, 335, 359–360 (para. 105). 32 Ibid., para 106. 33 PCA, In the Matter of the South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China), Award of 12 July 2016, para. 797, available at: http://www.pcacases.com/web/view/7. 34 Ibid., para 798. 35 Nordquist/Nandan/Rosenne (note 1), 453. 36 Art. 2 (2)(a)-(e) Jakarta Treaty 1982. 37 Art. 2 (2)(f)-(h) Jakarta Treaty 1982.

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are defined as ‘interests’ rather than rights and can only be undertaken in cooperation with Indonesia. This indicates that legitimate interests fall short of being autonomous legal rights which can be exercised unilaterally by Malaysia. 12 Art. 51 (1) only applies to ‘immediately adjacent neighbouring States’. This term also appears in Art. 47 (6). The term is not defined. NORDQUIST et al. note that it nevertheless limits the rights and interests to those States ‘sharing a common maritime or land boundary with the archipelagic State’.38 Here it is important to note the relationship between Art. 51 and Art. 47 (6) which deals with the specific situation of archipelagic waters lying between two parts of an immediately adjacent State. Under this provision, any rights or legitimate interests the adjacent State has traditionally exercised in the archipelagic waters shall continue and be respected. This indicates that such rights are not contingent upon any subsequent agreement and may be considered as a special case within Art. 51. This provision was designed to deal with Malaysian concerns about waters between the Malaysian Peninsula and North Borneo, which would become Indonesian archipelagic waters under Art. 47, so is of limited concern to other States. MUNAVAAR notes that no State other than Indonesia has made provision under domestic law for neighbouring States.39 This may indicate that traditional rights and other legitimate interests simply have not been exercised by neighbouring States in waters subsequently comprising archipelagic waters.

4. ‘regulated by bilateral agreements’ 13

Art. 51 (1) provides that ‘the terms and conditions for the exercise of such rights and activities, including the nature, the extent and the areas to which they apply, shall, at the request of any of the States concerned, be regulated by bilateral agreements between them.’ As a result, either the archipelagic State or its neighbours are entitled to initiate negotiations towards the conclusion of such agreements. The most significant of these agreements is that between Indonesia and Malaysia cited above.40

5. ‘Such rights shall not be transferred’ 14

Art. 51 (1) contains a clause prohibiting the transfer of the Art. 51 rights to third States or their nationals. NORDQUIST et al. observe that this is similar in nature to the prohibition of the transfer of rights by land-locked and geographically disadvantaged States under Art. 72. 41

6. ‘shall respect existing submarine cables’ Art. 51 (2) requires the archipelagic State to ‘respect existing submarine cables laid by other States and passing through its waters without making landfall’, and to permit their maintenance and replacement. NORDQUIST et al. note that ‘existing’ refers to ‘cables in place when the claim to status as an archipelagic State is accepted under the terms set out in Part IV.’ 42 16 Art. 51 (2) only applies to existing cables that do not make landfall. It does not refer to new cables, cables making landfall (in the archipelagic State) or submarine pipelines. Other States seeking to construct such cables or pipelines will require the permission of the archipelagic State. Art. 51 (2) therefore differs from Art. 79 (relating to the continental shelf) and Arts. 112 to 115 (high seas) both of which refer to both cables and pipelines. 17 An archipelagic State is obliged to permit the replacement or repair of existing undersea cables within archipelagic waters after ‘due notice’ has been given of their location and the intention to repair or replace them. Most domestic legislation is silent on the operation of 15

38

Nordquist/Nandan/Rosenne (note 1), 452. Mohamed Munavaar, Ocean States: Archipelagic Regimes in the Law of the Sea (1995), 162. 40 See Jakarta Treaty 1982. 41 Nordquist/Nandan/Rosenne (note 1), 452. 42 Ibid., 453. 39

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such rights, although some archipelagic States have subjected such rights to requirements of prior authorization.43 Indonesia has indicated that such rights may be subject to control through bilateral agreements.44

Article 52 Right of innocent passage 1. Subject to article 53 and without prejudice to article 50, ships of all States enjoy the right of innocent passage through archipelagic waters, in accordance with Part II, section 3. 2. The archipelagic State may, without discrimination in form or in fact among foreign ships, suspend temporarily in specified areas of its archipelagic waters the innocent passage of foreign ships if such suspension is essential for the protection of its security. Such suspension shall take effect only after having been duly published. Bibliography: Chittharanjan F. Amerasinghe, The Problem of Archipelagoes in the International Law of the Sea, ICLQ 23 (1974), 539–575; Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); Bin Ahmad Hamzah, Indonesia’s Archipelagic Regime: Implications for Malaysia, Marine Policy 8 (1984), 30–43; Barbara Kwiatkowska, The Archipelagic Regime in Practice in the Philippines and Indonesia: Making of Breaking International Law, IJECL 6 (1991), 1–32; H. C. Lee, An Archipelagic Claim for Papua New Guinea, Melanesian Law Journal 2 (1974), 91–107; Michael A. Leverson, The Problems of Delimitations of Baselines for Outlying Archipelagos, San DiegoLRev 9 (1971–1972), 733–746; Mohamed Munavvar, Ocean States: Archipelagic Regimes in the Law of the Sea (1995); Satya N. Nandan, An Introduction to the Regime of Passage through Straits Used for International Navigation and through Archipelagic Waters, in: Myron H. Nordquist/ Tommy T. B. Koh/John Norton Moore (eds.) Freedom of the Sea, Passage Rights and the 1982 Convention on the Law of the Sea Convention (2009), 57–64; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Daniel P. O’Connell, Mid-Ocean Archipelagos in International Law, 45 BYIL (1971), 1–79; Donald R. Rothwell/Tim Stephens, The International Law of the Sea (2010); Dikdik M. Sodik, The Indonesian Legal Framework on Baselines, Archipelagic Passage and Innocent Passage, ODIL 43 (2012), 330–341; Clive R. Symmons, The Maritime Zones of Islands in International Law (1979); Marjorie Whiteman (ed.), US Department of State: Digest of International Law, vol. IV (1965) Cases: ICJ, Fisheries Case (United Kingdom v. Norway), Judgment of 18 December 1951, ICJ Reports (1951), 116 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘right of innocent passage’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Relationship between Innocent Passage and Archipelagic Sea Lanes Passage . . . 3. ‘without prejudice to article 50’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Suspension of Innocent Passage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 7 7 8 9 10

I. Purpose and Function Art. 52 prescribes the regimes of passage through archipelagic waters. It confirms that 1 there is a general right of passage through archipelagic waters. This is subject to qualification. First, it is subject to the specific regime of ‘archipelagic sea lanes passage’ under Art. 53. Second, it is without prejudice to the right of the archipelagic State to draw closing lines to delimit internal waters, wherein no general rights of passage exist. Innocent passage is 43

See Cape Verde: Art. 21 Law No. 60/IV/92 of 21 December 1992. See for example, Art. 22 (1) of Indonesia’s Act No. 6 of 8 August 1996 regarding Indonesian Waters, available at: http://www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/IDN_1996_Act.pdf. 44

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therefore the ‘default navigation regime’ for vessels that are not engaged in ‘archipelagic sea lanes passage’ as defined in Art. 53.1 The purpose of Arts. 52 and 53 is to balance the interests of the archipelagic State with the community interest in secure navigational routes. 2 2 Art. 52 (2) concerns the right of the archipelagic State to suspend innocent passage. This is subject to four conditions. First, it must be without discrimination in form or fact. Second, it may only be temporary. Third, it must be essential for the protection of the archipelagic State’s security. Finally, suspension may only take effect after due publication.

II. Historical Background The question of navigation within archipelagic waters is linked to the general legal status of archipelagic waters. If archipelagic States were entitled to enclose sea areas that were formerly high seas within archipelagic baselines then this would threaten existing navigational freedoms. This would be unacceptable to maritime powers. Accordingly, the development of Art. 52 and related provisions on navigational rights (Arts. 53 and 54) are framed in terms of how to balance navigational interests with the cultural, political, social and security concerns of archipelagic States.3 4 It may be observed that questions concerning legal rights to navigate through archipelagic waters did not become an issue until archipelagic States began to assert claims to exclusive authority over such waters in the mid-part of the 20th century. 4 The general question of archipelagos had been identified as early as the 1920s, and was discussed at the Hague Codification Conference in 1930.5 However, as O’CONNELL observed, there was surprisingly little appreciation of the implications for the freedom of navigation of drawing closing lines around mid-ocean archipelagos.6 He further notes that only Germany and Japan appear to have raised this issue at the 1930 Conference.7 There were few opportunities to consider this matter until UNCLOS I. Even then only cursory treatment was given to the topic.8 Strictly speaking, the 1951 Fisheries Case concerned a ‘coastal archipelago’ so its specific observations on navigational rights within enclosed waters9 cannot be taken to be authoritative for midocean archipelagos.10 Despite this, a number of writers regard the case as critical to the development of the regime of archipelagic waters, and it certainly helped frame the subsequent debate about archipelagic waters.11 As SYMMONS notes, the International Law Commission (ILC) was aware of the problem of navigation within potentially vast areas of archipelagic waters during its deliberations in the 1950s.12 Although the ILC discussed the 3

1

Donald R. Rothwell/Tim Stephens, The International Law of the Sea (2010), 249. Satya N. Nandan, An Introduction to the Regime of Passage Through Straits Used for International Navigation and Through Archipelagic Waters, in: Myron H. Nordquist/Tommy T. B. Koh/John Norton Moore (eds.) Freedom of the Sea, Passage Rights and the 1982 Convention on the Law of the Sea Convention (2009), 57, 64. 3 The history of archipelagic waters is considered more generally in relation to Arts. 46 and 47: See Markus on Art. 46 MN 9–26 and Symmons on Art. 47 MN 3–8. 4 Note Verbale from the Permanent Delegate of the Philippines to the Secretary General of the United Nations of 7 March 1955, reproduced in: ILC, Report of the International Law Commission, UN Doc. A/2934 (1955), ILC Yearbook (1955), vol II, 52–53; Indonesia: Djuanda Declaration of 13 December 1957, translation in: Marjorie Whiteman (ed.), US Department of State: Digest of International Law, vol. IV (1965), 284. 5 See UNCLOS I, Certain Legal Aspects Concerning the Delimitation of the Territorial Waters of Archipelagos (by Jens Evensen), UN Doc. A/CONF.13/18 (1957), OR I, 289, 292. 6 Daniel P. O’Connell, Mid-Ocean Archipelagos in International Law, BYIL 45 (1971), 1. 7 Ibid., 11. 8 Ibid., 16. 9 ICJ, Fisheries Case (United Kingdom v. Norway), Judgment of 18 December 1951, ICJ Reports (1951), 116, 132. 10 Michael A. Leverson, The Problems of Delimitations of Baselines for Outlying Archipelagos, San DiegoLRev 9 (1971–1972), 733, 740. 11 H. C. Lee, An Archipelagic Claim for Papua New Guinea, Melanesian Law Journal 2 (1974) 91, 99; Mohamed Munavvar, Ocean States: Archipelagic Regimes in the Law of the Sea (1995), 65 et seq.; Chittharanjan F. Amerasinghe, The Problem of Archipelagoes in the International Law of the Sea, ICLQ 23 (1974), 539, 545. 12 Clive R. Symmons, The Maritime Zones of Islands in International Law (1979), 71. 2

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position of archipelagos, mainly in the context of straight baselines, it did not present any draft provisions specifically concerning archipelagos.13 One of the more considered proposals of the time was the Evensen Paper submitted to UNCLOS I, which proposed that a navigational regime akin to straits be established for waters between and inside the constituent parts of an archipelago.14 State practice was limited during this formative period because of the small numbers of mid-ocean archipelagos and the lack of opportunities to engage in the development of customary international law. For example, in 1960 Indonesia asserted that all vessels passing through its ‘internal waters’ (i. e. waters within the island chain) were subject to a regime of innocent passage.15 However, this was strongly protested by other States.16 Prior to UNCLOS III, there seemed to be little clear agreement between commentators on how navigation in archipelagic waters should be framed.17 It was not until UNCLOS III that the issue was finally addressed. The question of navigation in archipelagic waters was first considered in the 1973 session of 5 the Sea-Bed Committee. Two main proposals were put forward, advancing respectively the perspectives of archipelagic States and those of States concerned with navigational guarantees. 18 On the one hand, the archipelagic States of Fiji, Indonesia, Mauritius and the Philippines put forward a draft which proposed a regime of innocent passage in archipelagic waters, but which the archipelagic State could limit to designated sea lanes.19 On the other hand, a draft prepared by the United Kingdom proposed that there be two separate regimes for passage through archipelagic waters. The first would apply the regime of international straits to routes of international navigation (between two areas of high seas, or the high seas and the territorial waters of another State). The second regime, applicable to the remaining areas of archipelagic waters, would be that of innocent passage.20 The four archipelagic States subsequently modified their proposal, 21 and whilst this did not 6 secure general acceptance, it provided the basis for the subsequent negotiation of a legal regime for navigation through archipelagic waters based on a general regime of innocent passage subject to some additional provisions on the use of sea lanes. During the Second Session of UNCLOS III in 1974, delegations remained divided on the precise aspects of this regime.22 However, a degree of consensus appears to have coalesced during the Third Session in 1975. This consensus seems to have been captured in the ‘18 Principles Paper’ circulated by Bahamas but not included in the official conference documents.23 This included key provisions on a general regime of innocent passage subject to provisions on sea lanes (para. 7) and the right of the archipelagic State to suspend temporarily passage for security reasons (para. 8). This approach was included within Art. 123 of the Informal Single Negotiating Text (ISNT) Part II.24 It captured a position upon which consensus appeared to 13

Munavaar (note 11), 75–78. Certain Legal Aspects Concerning Territorial Waters of Archipelagos (note 5), 302. 15 See Art. 3 of the Act Concerning Indonesian Waters, 18 February 1960, reproduced in: UNCLOS II, Supplement to the Publication Laws and Regulations on the Regime of the Territorial Sea, UN Doc. A/ CONF.19/5/ADD.1 (1960), 3–4. 16 Barbara Kwiatkowska, The Archipelagic Regime in Practice in the Philippines and Indonesia – Making of Breaking International Law, IJECL 6 (1991), 1, 17. 17 Amerasinghe (note 11), 543–544; Munavaar (note 11), 78–81. 18 Amerasinghe (note 11), 547; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 457. 19 Sea-Bed Committee, Fiji et al.: Archipelagic Principles, UN Doc. A/AC.138/SC.II/L.15 (1973), GAOR 28th Sess. Suppl. 21 (A/9021-III), 1, 2 (Principle 3). 20 Sea-Bed Committee, United Kingdom: Draft Article on the Rights and Duties of Archipelagic States, UN Doc. A/AC.138/SC.II/L.44 (1973), GAOR 28th Sess. Suppl. 21 (A/9021-III), 99, 100. 21 Seabed Committee, Fiji et al.: Draft Articles on Archipelagos, UN Doc. A/AC.138/SC.II/L.48 (1973), GAOR 28th Sess. Suppl. 21 (A/9021-III), 102, 103–105 (Arts. IV and V (1), (8), (9)). 22 Nordquist/Nandan/Rosenne (note 18), 458–459. 23 Ibid., 405–406. 24 UNCLOS III, Informal Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/Part II (1975), OR IV, 152, 169 (Art. 123). 14

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be developing and so provided the basis for the eventual provisions on navigation through archipelagic waters. The Revised Single Negotiating Text (RSNT) adopted in 1976 refined the ISNT as follows: ‘Subject to article 125, ships of all States enjoy the right of innocent passage through archipelagic waters, in accordance with section 3 of Chapter I’. 25 Between 1976 and 1978, attempts by Indonesia and the Philippines to secure a regime more strongly based upon innocent passage failed to secure wider acceptance. 26 The Informal Composite Negotiating Text adopted in 1977 followed the approach taken in the ISNT and RSNT, but with the addition of the phrase ‘and without prejudice to Article 50’.27 This reflected the consensus position that internal waters within closing lines drawn across bays, ports and rivers were excluded from the regime of innocent or archipelagic sea lanes passage. No further significant drafting changes were adopted pending the final adoption of Art 52.

III. Elements 1. ‘right of innocent passage’ 7

Art. 52 grants the ships of all States the right of innocent passage through archipelagic waters. Innocent passage bears the same meaning as set forth in Arts. 18 and 19, 28 and as regulated by Part II, Section 3 generally. Since innocent passage is expressed as having the same meaning as that contained in Part II, Section 3, it follows that those provisions apply equally to innocent passage in archipelagic waters. This means that ships enjoy a right of continuous and expeditious passage through archipelagic waters, conducted in a way that is not prejudicial to the peace, good order and security of the coastal State. Although the right of passage is, in principle, the same as that pertaining to territorial waters, in practice its enjoyment and regulation may differ due to the fact that the underlying juridical status of and legal regime for archipelagic waters differ from that of the territorial sea. It may be noted that archipelagic waters is a sui generis regime, wherein the waters are considered to be an ‘integral part of the territory of the ocean State’. 29 Thus archipelagic States may be more sensitive to the activities of foreign ships within archipelagic waters, and they may perceive them more readily to be a threat to their security. This seems to be manifest in the requirement by most archipelagic States for prior authorization or notification of passage for warships.30

2. Relationship between Innocent Passage and Archipelagic Sea Lanes Passage 8

The right of innocent passage under Art. 52 is expressed as being subject to Art. 53. Art. 53 provides for enhanced rights of navigation within sea lanes designated by the archipelagic State.31 Where archipelagic sea lanes have been established (or routes normally used for navigation exist), ships and aircraft enjoy navigational rights akin to transit passage, rather than the more limited rights granted to ships under the regime of innocent passage. This is important because, as discussed in Art. 53, passage in archipelagic sea lanes is akin to transit passage. Therefore it extends to aircraft and it may not be suspended.32 25 UNCLOS III, Revised Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/REV.1/PART II (1976), OR V, 151, 171. 26 Nordquist/Nandan/Rosenne (note 18), 460–461. 27 UNCLOS III, Informal Composite Negotiating Text, UN Doc. A/CONF.62/WP.10 (1977), OR VIII, 12. 28 See generally Barnes on Arts. 18 and 19. 29 Munavvar (note 11), 175. 30 Ibid., 165. 31 See Barnes/Massarella on Art. 53 MN 1. 32 Barnes/Massarella on Art. 53 MN 12.

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3. ‘without prejudice to article 50’ Art. 52 is stated to be without prejudice to the archipelagic State’s right under Art. 50 to 9 delimit its internal waters in accordance with Arts. 9, 10 and 11. Clearly the right of innocent passage will only subsist in the area of archipelagic waters which remains outside of such delimitation, since there is no right of innocent passage in internal waters. It is noted in NORDQUIST et al. that this wording was incorporated from the Indonesian proposals. 33

4. Suspension of Innocent Passage Art. 52 (2) reserves the right of the coastal State to suspend innocent passage ‘for the 10 protection of its security’. This virtually mirrors Art. 25 (3) on the rights of protection of the coastal State.34 Before innocent passage can be suspended, there are four requirements that must be satisfied. First, the suspension must be ‘without discrimination in form or in fact among foreign ships’. In NORDQUIST et al. it is observed that the phrase ‘in form or in fact’ also appears in Arts. 24 (1)(b), 25 (3), 42 (2) and 227.35 This suggests a similar meaning should be applied in the case of each article. However, Art. 52 (2) (in common with Arts. 25 and 42) uses the word ‘among’ rather than ‘against’. This suggests that other States’ vessels must be treated equally, but that this level of treatment does not have to be the same as that applied to its own vessels. Conduct is prohibited whether it is overtly discriminatory (in form) or where it is not obviously discriminatory, but nevertheless has the effect of being so (in fact). 36 Second, the suspension can only be temporary, although the duration of this is left unspecified. Third, the suspension must be ‘essential for the protection of the security of the archipelagic State’. As noted above, the phrase ‘including weapons exercises’ which appears in the corresponding article relating to innocent passage in the territorial sea (Art. 25 (3)) is not included. However, it seems likely that this does not mean this is excluded as a reason for suspension under Art. 52 (2), since weapons exercises are nevertheless thought to be included within the broader category of the protection of the security of the archipelagic State. 37 This is notwithstanding the fact that a motion to specifically include weapons exercises by Papua New Guinea in the Eleventh Session was rejected.38 Finally, the fourth requirement stipulates that the suspension can only take effect after having been duly published. HAMZAH observes that the archipelagic State does not have to clarify the reasons for the suspension following its notification. 39 However, there is no explicit provision either way on this point in the 1982 Convention.

Article 53 Right of archipelagic sea lanes passage 1. An archipelagic State may designate sea lanes and air routes thereabove, suitable for the continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters and the adjacent territorial sea. 33

Nordquist/Nandan/Rosenne (note 18), 461. See Barnes on Art. 25 MN 11–15. 35 Nordquist/Nandan/Rosenne (note 18), 462. 36 Ibid. 37 Ibid., 461. This is provided for under Art. 12 (1) of Law No 6 of 1996 on Indonesian National Waters (noted in: Didik M. Sodik, The Indonesian Legal Framework on Baselines, Archipelagic Passage and Innocent Passage, ODIL 43 (2012), 330, 331). 38 Second Committee UNCLOS III, Informal Suggestion by Papua New Guinea, UN Doc. C.2/Informal Meeting/73 (1982, mimeo.), reproduced in: Renate Platzo¨der (ed.), Third United Nations Conference on the Law of the Sea: Documents, vol. V (1984), 77. 39 Bin Ahmad Hamzah, Indonesia’s Archipelagic Regime: Implications for Malaysia, Marine Policy 8 (1984), 30, 33. 34

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2. All ships and aircraft enjoy the right of archipelagic sea lanes passage in such sea lanes and air routes. 3. Archipelagic sea lanes passage means the exercise in accordance with this Convention of the rights of navigation and overflight in the normal mode solely for the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone. 4. Such sea lanes and air routes shall traverse the archipelagic waters and the adjacent territorial sea and shall include all normal passage routes used as routes for international navigation or overflight through or over archipelagic waters and, within such routes, so far as ships are concerned, all normal navigational channels, provided that duplication of routes of similar convenience between the same entry and exit points shall not be necessary. 5. Such sea lanes and air routes shall be defined by a series of continuous axis lines from the entry points of passage routes to the exit points. Ships and aircraft in archipelagic sea lanes passage shall not deviate more than 25 nautical miles to either side of such axis lines during passage, provided 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. 6. An archipelagic State which designates sea lanes under this article may also prescribe traffic separation schemes for the safe passage of ships through narrow channels in such sea lanes. 7. An archipelagic State may, when circumstances require, after giving due publicity thereto, substitute other sea lanes or traffic separation schemes for any sea lanes or traffic separation schemes previously designated or prescribed by it. 8. Such sea lanes and traffic separation schemes shall conform to generally accepted international regulations. 9. In designating or substituting sea lanes or prescribing or substituting traffic separation schemes, an archipelagic State shall refer proposals to the competent international organization with a view to their adoption. The organization may adopt only such sea lanes and traffic separation schemes as may be agreed with the archipelagic State, after which the archipelagic State may designate, prescribe or substitute them. 10. The archipelagic State shall clearly indicate the axis of the sea lanes and the traffic separation schemes designated or prescribed by it on charts to which due publicity shall be given. 11. Ships in archipelagic sea lanes passage shall respect applicable sea lanes and traffic separation schemes established in accordance with this article. 12. 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. Bibliography: Sam Bateman, Security and the Law of the Sea in East Asia: Navigational Regimes and Exclusive Economic Zones, in: David Freestone/Richard Barnes/David Ong (eds.), Law of the Sea: Progress and Prospects (2006), 365–387; Jay L. Batongbacal, Barely Skimming the Surface: Archipelagic Sea Lanes Navigation and the IMO, in: Alex G Oude Elferink/Don R Rothwell (eds.), Oceans Management in the 21st Century: Institutional Frameworks and Responses (2004), 49–68; Kevin Baumert/Brian Melchior, The Practice of Archipelagic States, ODIL 46 (2014), 60–80; Hugo Caminos/Vincent P. Cogliati-Bantz, The Legal Regime of Straits: Contemporary Challenges and Solutions (2014); Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); Hasjim Djalal, Indonesia and the Law of the Sea (1995); Constance Johnson, A Rite of Passage: The IMO Consideration of the Indonesian Archipelagic Sea-Lanes Submission, IJMCL 15 (2000), 317–332; Mohamed Munavvar, Ocean States: Archipelagic Regimes in the Law of the Sea (1995); Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Daniel P O’Connell, Mid-Ocean Archipelagos in International Law, BYIL 45 (1971), 1–77; Donald R. Rothwell/Tim Stephens, The International Law of the Sea (2010); Robin Warner, Implementing the Archipelagic Regime in the International Maritime Organization, in: Donald R Rothwell/Sam Bateman (eds.), Navigational Rights and Freedoms and the New Law of the Sea (2000), 170–187

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Documents: ICAO, Consideration of the Report of the Rapporteur on ‘United Nations Convention on the Law of the Sea – Implication, if any, for the Application of the Chicago Convention, its Annexes and Other International Air Law Instruments’, ICAO Doc LC/26-WP-5-1 (1985); ICAO, Proposal, IMO Doc. MSC 69/5/6 (1998); IMO, Implications of the United Nations Convention on the Law of the Sea for the International Maritime Organization: Study Produced by the Secretariat of the International Maritime Organization, IMO Doc LEG/ MISC.7 (2012); IMO, Safety of Navigation: Designation of Certain Sea Lanes and Air Routes thereabove through Indonesian Archipelagic Waters – Note by Indonesia, IMO Doc. MSC 67/7/2 (1996); IMO, Ships’ Routeing (13th edn. 2013); IMO MSC, Report of the Maritime Safety Committee on Its Sixty-Ninth Session, IMO Doc. MSC 69/ 22/ADD.1 (1998); IMO MSC, Report of the Maritime Safety Committee on Its Sixty-Seventh Session, IMO Doc. MSC 67/22 (1996); IMO, General Provisions on Ships’ Routeing, IMO Res. A.572(14) of 20 November 1985; IMO, Adoption of Amendments to the General Provisions on Ships’ Routeing, IMO Res. MSC.71(69) of 19 May 1998; IMO Res. MSC.165(78) of 17 May 2004; United States Department of State, Bureau of Oceans and International Environmental and Scientific Affairs, Limits in the Seas No. 141 Indonesia: Archipelagic and other Maritime Claims and Boundaries, 15 September 2014; US Navy, The Commander’s Handbook on the Law of Naval Operations (2007) Cases: Prof. Merlin M. Magallona et.al. v. Hon. Eduardo Ermita, in his Capacity as Executive Secretary et al., G.R. No. 187167, 16 July 2011 (Philippines) Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘An archipelagic State may designate sea lanes’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘All ships and aircraft enjoy the right of archipelagic sea lanes passage’. . . . . . . . . 3. ‘sea lanes passage means […]’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. ‘sea lanes and air routes shall traverse the archipelagic waters and the adjacent territorial sea and shall include […]’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. ‘traffic separation schemes’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. ‘shall conform to generally accepted international regulations’ . . . . . . . . . . . . . . . . . . 7. ‘the competent international organization’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8. ‘Ships in archipelagic sea lanes passage shall respect applicable sea lanes and traffic separation schemes’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9. ‘If an archipelagic State does not designate sea lanes […]’ . . . . . . . . . . . . . . . . . . . . . .

1 2 7 7 11 12 14 15 16 17 19 20

I. Purpose and Function Art. 53 details the second part of the ‘dual approach’ to transit through archipelagic waters 1 (the other being the regime of innocent passage set out in Art. 52). Art. 53 sets out the right of ‘archipelagic sea lanes passage’, the purpose of which is to facilitate the ‘continuous, expeditious, and unobstructed passage’ of vessels from one part of the high seas or an exclusive economic zone (EEZ) through archipelagic waters to another part of the high seas or an EEZ. This provides vessels with an enhanced right of passage through archipelagic waters, subject to the designation of sea lanes and air routes by the archipelagic State. ROTHWELL & STEPHENS note that it borrows heavily from the transit passage regime in Part III of the Convention.1 This lengthy article is divided into 12 subsections. Art. 53 (1) allows the archipelagic State to designate sea lanes and air routes for the purpose of archipelagic sea lanes passage and Art. 53 (2) affirms the right of all ships and aircraft to enjoy archipelagic sea lanes passage. Art. 53 (3) defines the term ‘archipelagic sea lanes passage’, Art. 53 (4) sets out the rules for the designation of sea lanes and air routes, and Art. 53 (5) sets out the method for determining them. Art. 53 (6) allows the prescription of traffic separation schemes in narrow channels, and Art. 53 (7)-(11) correspond to similar provisions relating to international straits on the subject of the designation and substitution of sea lanes and traffic separation schemes. Finally, Art. 53 (12) addresses the situation where an archipelagic State does not designate sea lanes or air routes. 1

Donald R. Rothwell/Tim Stephens, The International Law of the Sea (2010), 250.

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II. Historical Background NORDQUIST et al. observe that the original proposals by archipelagic States in the 1973 session of the Sea-Bed Committee provided only for innocent passage through archipelagic waters in sea lanes designated by the coastal State.2 That proposal, put forward by Fiji, Indonesia, Mauritius, and the Philippines, had proposed a single basis for the navigation of foreign vessels in archipelagic waters, in the form of a modified version of innocent passage. 3 It was the proposal put forward by the United Kingdom that introduced the idea of a ‘dual regime’ for navigation in archipelagic waters (i. e. innocent passage and archipelagic sea lanes passage). 4 3 NORDQUIST et al. observe that the UK proposal did not set out a separate regime for archipelagic sea lanes passage, but instead proposed that the regime of international straits should be applied to established routes for international navigation through archipelagic waters, whilst archipelagic waters outside of such established routes would be subject to the regime of innocent passage.5 Following the UK proposal, the four archipelagic States put forward a modified draft which was nevertheless still based on innocent passage. 6 This draft included the right of archipelagic States to designate and substitute sea lanes through their archipelagic waters.7 It also allowed archipelagic States to prescribe traffic separation schemes, and required them to take into account the advice of ‘competent international organizations’ in doing so.8 In 1974, those States subsequently introduced a further draft to the Second Session of UNCLOS III with minor changes.9 4 A new proposal by Bulgaria, East Germany and Poland suggested as an alternative to innocent passage: ‘freedom of passage in archipelagic straits, the approaches thereto, and those areas in the archipelagic waters […] along which normally lie the shortest sea lanes used for international navigation between one part and another part of the high seas.’10 NORDQUIST et al. observe that ‘most of the elements’ of the earlier proposals were amalgamated in the Informal Single Negotiating Text Part II.11 This text permitted archipelagic States to ‘designate sea lanes and air routes suitable for the safe, continuous and expeditious passage of foreign ships and aircraft through its archipelagic waters’. 12 That draft also introduced the term ‘archipelagic sea lanes passage’ defined as navigation and overflight ‘in the normal mode for the purpose of continuous and expeditious transit through an archipelago’. 13 The draft also allowed for the designation of traffic separation schemes, required the referral of proposals for the designation of sea lanes to the competent international organization prior to their adoption, and addressed the situation where the archipelagic State does not designate sea lanes.14 2

2 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 466. 3 Seabed Committee, Fiji et al.: Archipelagic Principles, UN Doc. A/AC.138/SC.II/L.15 (1973), GAOR 28th Sess. Suppl. 21 (A/9021-III), 1, 2 (Principle 3). 4 Seabed Committee, United Kingdom: Draft Article on the Rights and Duties of Archipelagic States, UN Doc. A/AC.138/SC.II/L.44 (1973), GAOR 28th Sess. Suppl. 21 (A/9021-III), 99, 100 (Art. 1 (7) and (8)). 5 Nordquist/Nandan/Rosenne (note 2), 467. 6 Seabed Committee, Fiji et al.: Draft Articles on Archipelagos, UN Doc. A/AC.138/SC.II/L.48 (1973), GAOR 28th Sess. Suppl. 21 (A/9021-III), 102, 103 (Art. IV). 7 Ibid., Art. IV (1)-(3). 8 Ibid., 104 (Art. V (4)). 9 Second Committee UNCLOS III, Fiji et al.: Draft Articles Relating to Archipelagic States, UN Doc. A/ CONF.62/C.2/L.49 (1974), OR III, 226. 10 Second Committee UNCLOS III, Bulgaria, German Democratic Republic and Poland: Amendments to Document A/CONF.62/C.2/L.49, UN Doc. A/CONF/C.2/L.52 (1974), OR III, 228. 11 Nordquist/Nandan/Rosenne (note 2), 469. 12 UNCLOS III, Informal Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/PART II (1975), OR IV, 152, 169 (Art. 124 (1)). 13 Ibid., Art. 124 (3). 14 Ibid., Art. 124 (9).

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At the Fourth Session, the Philippines and Indonesia proposed amendments that would 5 have applied a more restrictive regime of passage for warships, nuclear vessels and noncommercial vessels.15 In contrast, the United States maintained the position that the right of passage applied to all ships, consistent with the parallel provisions on straits. 16 The United States also sought to amend para. 3 of the ISNT so as to describe sea lanes passage as a freedom rather than a right. These amendments were not accepted, and the Revised Single Negotiating Text (RSNT) retained its general application to all ships. 17 The topic was the subject of further discussion in subsequent meetings which nevertheless 6 mainly resulted in minor changes to the draft article. At the Sixth Session, the Informal Composite Negotiating Text (ICNT) incorporated proposals primarily from Indonesia on the measurement of archipelagic sea lanes. The most significant change from the RSNT was para. 5 of draft Art. 53, which was rewritten to circumscribe them as being: ‘defined by a series of continuous axis lines from the entry points of passage routes to the exit points. Ships and aircraft in archipelagic sea lanes passage shall not deviate more than 25 nautical miles to either side of such axis lines during passage, provided that 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.’18

Later, at the Seventh Session, the Philippines further sought to amend the ICNT so as to apply a more restrictive regime to warships.19 This was not accepted, and other than some minor drafting changes, Art. 53 was adopted into the final text.

III. Elements 1. ‘An archipelagic State may designate sea lanes’ Several paragraphs of Art. 53 deal with the process of designating sea lanes. The principal 7 authority to designate sea lanes is found in Art. 53 (1), which permits the archipelagic State to designate sea lanes and air routes ‘suitable for the continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters and the adjacent territorial sea.’ To assist States in this process, the International Maritime Organization (IMO) has provided general guidance on the designation and use of sea lanes.20 Although Art. 53 (1) allows States to designate sea lanes and air routes it does not oblige them to do so, and in the event that no designation occurs, Art. 53 (12) applies.21 Archipelagic States have adopted different approaches to the designation of archipelagic sea lanes in practice, and this has resulted in a somewhat inconsistent approach to navigation rights in archipelagic waters. Indonesia has made explicit 15 Second Committee UNCLOS III, Philippines Informal Proposal: Articles 118–125 (ISNT II) (1976, mimeo.), reproduced in: Renate Platzo¨der (ed.), Third United Nations Conference on the Law of the Sea: Documents, vol. IV (1983), 335, 336 (Art. 124); Second Committee UNCLOS III, Indonesia Informal Proposal: Art. 124 (ISNT II) (1976, mimeo.), reproduced in: ibid., 341. 16 Second Committee UNCLOS III, United States Informal Proposal: Article 124 (ISNT II) (1976, mimeo.), reproduced in: Platzo¨der (note 15), 342. 17 UNCLOS III, Revised Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/REV.1/PART II (1976), OR V, 151, 171 (Art. 125 (2)). 18 UNCLOS III, Informal Composite Negotiating Text, UN Doc. A/CONF.62/WP.10 (1977), OR VIII, 12. 19 Second Committee UNCLOS III, Informal Suggestion by the Philippines, UN Doc. C.2/Informal Meeting/20 (1978, mimeo.), reproduced in: Renate Platzo¨der (ed.), Third United Nations Conference on the Law of the Sea: Documents, vol. V (1984), 26, 27–28 (Art. 53); Second Committee UNCLOS III, Informal Suggestion by the Philippines, UN Doc. C.2/Informal Meeting/20/CORR.1 (1978, mimeo.), reproduced in: ibid., 29. 20 IMO, Adoption of Amendments to the General Provisions on Ships’ Routeing IMO Res. MSC.71(69) of 19 May 1998, Annex 2 (General Provision for the Adoption, Designation and Substitution of Archipelagic Sea Lanes) (later amended by IMO Res. MSC.165(78) 17 May 2004). The General Provisions were adopted in the 69th Session of the IMO’s Maritime Safety Committee: IMO MSC, Report of the Maritime Safety Committee on Its Sixty-Ninth Session, IMO Doc. MSC 69/22/ADD.1 (1998), Annex 8. They also appear as Part H of the IMO Ships’ Routeing Publications. 21 See infra, MN 20–21.

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provision for this under domestic law, with Art. 19 of Act No. 6 of 1996 allowing for the designation of sea lanes or air routes through or over Indonesian waters.22 This has been followed by partial designation of sea lanes.23 In contrast, the Philippines recognises a general right of archipelagic sea lanes passage,24 although it has not yet designated any sea lanes. Pending the designation of such sea lanes, the Philippines Supreme Court has recognised the existence of rights of innocent passage and sea lanes in Philippines archipelagic waters in accordance with the 1982 Convention.25 8 In practice, the precise designation of sea lanes will require an element of negotiation and compromise between interested States. Thus, WARNER observes that: ‘On cursory review, the UNCLOS articles on [archipelagic sea lanes passage] appear relatively comprehensive, however their inchoate nature became increasingly evident as bilateral negotiations and meetings in the IMO to consider Indonesia’s [archipelagic sea lanes] proposal proceeded’. 26

The negotiations concerning the designation of sea lanes in Indonesian archipelagic waters revealed some of the practical difficulties in designating archipelagic sea lanes. In particular, those negotiations addressed the problem of ‘partial designation’ (where the archipelagic State proposes the designation of archipelagic sea lanes which do not incorporate all of the normal passage routes), and the problem of charting archipelagic sea lanes. 27 Negotiations on the archipelagic sea lanes involved a series of meetings beginning in February 1996, and included three formal bilateral meetings between Australia and Indonesia, a formal bilateral meeting between Australia and the United States, two meetings of the IMO’s Maritime Safety Committee (MSC 67 and 69), two meetings of the IMO’s Safety of Navigation SubCommittee (NAV 43 and 44), as well as discussion in the IMO’s 20th assembly. The meetings resulted in the adoption of the IMO’s ‘General Provisions on the Adoption, Designation and Substitution of Archipelagic Sea Lanes’.28 These set out the procedure for and responsibilities relating to the submission of proposals for sea lanes to the IMO, and the criteria to be used for their determination.29 9 Art. 53 (5) sets out the method for determining the width and outer limit of archipelagic sea lanes. The lanes are ‘to be defined by a series of continuous axis lines from the entry points of passage routes to the exit points.’ Ships and aircraft in passage are not to ‘deviate more than 25 nautical miles to either side of such axis lines during passage, provided 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’. Although the rule on charting the parameters of the sea lanes is quite simple in principle, it became clear that the formula contained in Art. 53 (5) was difficult to apply in certain cases. As W ARNER notes, where there are 25 NM of waters either side of the axis lines then there is no difficulty. 30 However, 22 Act No. 6 of 8 August 1996 regarding Indonesian Waters, available online at: http://www.un.org/Depts/los/ LEGISLATIONANDTREATIES/PDFFILES/IDN_1996_Act.pdf. 23 Indonesian Government Regulation No. 37 on the Rights and Obligations of Foreign Ships and Aircraft Exercising the Right of Archipelagic Sea Lanes Passage through Designated Archipelagic Sea Lanes, June 28 2002, reproduced in: LOSB 52 (2003), 20–40. 24 Philippines: Republic Act No. 9522: An Act to Amend Certain Provisions of Republic Act No. 3046, as Amended by Republic Act No. 5446, to Define the Archipelagic Baseline of the Philippines and for Other Purposes 2009, reproduced in: LOSB 70 (2009), 32–35. 25 See Prof. Merlin M. Magallona et.al. v. Hon. Eduardo Ermita, in his Capacity as Executive Secretary et al., G.R. No. 187167, 16 July 2011 (Philippines), available at: http://sc.judiciary.gov.ph/jurisprudence/2011/august2011/187167.html. 26 Robin Warner, Implementing the Archipelagic Regime in the International Maritime Organization, in: Donald R. Rothwell/Sam Bateman (eds.), Navigational Rights and Freedoms and the New Law of the Sea (2000), 170, 173–174. 27 Ibid., 176–177. 28 IMO, Adoption of Amendments to the General Provisions on Ships’ Routeing IMO Res. MSC.71(69) of 19 May 1998, Annex 2. See already supra, note 20. 29 IMO, Adoption of Amendments to the General Provisions on Ships’ Routeing, IMO Res. MSC.71(69) of 19 May 1998, Annex 2 (Para. 1.1). 30 Warner (note 26), 179.

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complications arose in relation to two areas within Indonesian archipelagic waters where a number of small islands encroached on the sea lanes. WARNER notes that this caused two complications in particular. The first is where islands encroach on the 25 NM distance either side of the axis lines potentially permitting the invocation of the ten per cent rule and thus preventing passage in the sea lanes next to them. The second is how to calculate the distance between bordering islands where they are not immediately adjacent to one another. 31 WARNER records that a review of the possible interpretations of Art. 53 (5) by the Australian Government preliminary to their negotiations with Indonesia ‘disclosed five possible methods of interpreting the application of the ten per cent rule to geographical situations within [archipelagic sea lanes].’32 She observes that whilst Art. 53 provided a framework for the negotiation of the designation of archipelagic sea lanes in that case, ‘technical expertise and innovative interpretation were necessary to implement [the] designation in practice’. 33 Related to Art. 53 (5) is Art. 53 (10), which requires the archipelagic State to indicate 10 clearly the axis of the sea lanes and any traffic separation scheme on charts to which due publicity is given. There is no requirement for sea lanes to remain fixed to any particular location, and Art. 53 (7) permits the substitution of sea lanes (and traffic separation schemes). Any substitution still requires IMO review under Art. 53 (9), thus ensuring that navigational interests are protected. The substitution must also be given due publicity.

2. ‘All ships and aircraft enjoy the right of archipelagic sea lanes passage’ According to Art. 53 (2), ‘all ships and aircraft’ have the right of archipelagic sea lanes 11 passage. NORDQUIST et al. note that this right is not qualified by reference to nationality, ownership or other characteristics.34 It is notable that in spite of disagreement which arose during the negotiations as to the application of the right in respect of warships, nuclear vessels and foreign non-commercial vessels, it applies equally to both warships and merchant shipping.35 As indicated below,36 a number of archipelagic States have imposed conditions on this in respect of non-commercial vessels. The US State Department notes that ‘[t]he Indonesian government has, on occasion, attempted to restrict the exercise of the right of archipelagic sea lanes by U.S. military aircraft through east-west routes normally used for international navigation […]’.37 Although the US is not a party to the UNCLOS, its view implies that such rights are enjoyed by all States. It seems likely that attempting to restrict overflight of such routes would contravene Art. 53 (2), notwithstanding the fact that they might not have been designated by the archipelagic State. As noted below, Indonesia’s restrictive designation of sea lanes has resulted in objections from States who conduct shipping through Indonesian waters.38

3. ‘sea lanes passage means […]’ Art. 53 (3) defines sea lanes passage as the ‘exercise in accordance with this Convention of 12 the rights of navigation and overflight in the normal mode’ and ‘solely for the purpose of continuous, expeditious, and unobstructed transit between one part of the high seas or an [EEZ] and another part of the high seas or an [EEZ]’. Vessels that wish to call into port within archipelagic waters would therefore not be exercising archipelagic sea lanes passage. 31

Ibid. Ibid., 184. 33 Ibid., 186. 34 Nordquist/Nandan/Rosenne (note 2), 476. 35 Supra, MN 5–6. 36 Infra, MN 13. 37 United States Department of State, Bureau of Oceans and International Environmental and Scientific Affairs, Limits in the Seas No. 141 Indonesia: Archipelagic and other Maritime Claims and Boundaries, 15 September 2014, 4–5, available at: http://www.state.gov/e/oes/ocns/opa/c16065.htm. 38 See infra, MN 14. 32

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Art. 53 (3) substantially mirrors the provisions contained within Art. 38 concerning the right of transit passage through international straits. Art. 53 (3) differs from Art. 38 (2) by including the word ‘unobstructed’ in the definition of passage. NORDQUIST et al. observe that its inclusion is slightly unusual in that the formula ‘continuous and expeditious’ places an obligation on the vessels exercising passage, whilst ‘unobstructed’ suggests an obligation on the part of the archipelagic State.39 They note that the more detailed obligations against ‘denying, hampering or impairing’ transit are incorporated again by operation of Art. 54. NORDQUIST et al. also note that Art. 53 (3) uses the term ‘rights of navigation and overflight’ rather than using the word ‘freedom’ which is used elsewhere in the Convention, a choice that was deliberately taken in its drafting.40 The reasons for this wording are not clear from the travaux pre´paratoires, although it appears to be part of the general compromise between archipelagic States and maritime States concerning the extent of navigational rights in archipelagic waters.41 13 The term ‘normal mode’ is said to bear the same meaning as that found in Art. 39 (1)(c), by virtue of the cross-reference made by Art. 54.42 However, some authors have questioned what constitutes ‘normal’ in the context of archipelagic waters.43 This matter has not been settled, particularly as regards the passage of military vessels. Thus, the US takes the view this: ‘means that submarines may transit while submerged and that surface warships may carry out those activities normally undertaken during passage through such waters, including activities necessary to their security, such as formation steaming and the launching and recovery of aircraft as well as operating devices such as radar, sonar, and depth-sounding devices.’ 44

Historically, both the Philippines and Indonesia have sought prior notification for the passage of warships.45 A survey of practice by BAUMERT & MELCHIOR also notes that Antigua and Barbuda, Maldives, Seychelles, Saint Vincent and the Grenadines, and Vanuatu require warships to receive prior permission prior to navigating archipelagic waters. 46 The Dominican Republic, Mauritius, Maldives and Seychelles impose similar conditions on ships carrying nuclear or inherently dangerous or noxious substances.47 These variations in practice indicate that the precise operation of sea lanes practice remains unsettled. 48

4. ‘sea lanes and air routes shall traverse the archipelagic waters and the adjacent territorial sea and shall include […]’ 14

According to Art. 53 (4), sea lanes shall traverse archipelagic waters, indicating that they must provide both points of entry and exit from archipelagic waters connecting them to the territorial sea and other maritime zones. Moreover, such lanes shall include all normal passage routes that are used for international navigation. This requirement preserves preexisting national rights and means that States are not permitted to use the designation of sea lanes as a means of limiting navigation along routes normally used for international 39

Nordquist/Nandan/Rosenne (note 2), 477. Ibid. Supra, MN 5. 42 Nordquist/Nandan/Rosenne (note 2), 477. 43 Sam Bateman, Security and the Law of the Sea in East Asia: Navigational Regimes and Exclusive Economic Zones, in: David Freestone/Richard Barnes/David Ong (eds.), Law of the Sea: Progress and Prospects (2006), 377; Jay L. Batongbacal, Barely Skimming the Surface: Archipelagic Sea Lanes Navigation and the IMO, in: Alex G. Oude Elferink/Donald R. Rothwell (eds), Oceans Management in the 21st Century: Institutional Frameworks and Responses (2004), 61–62. 44 US Navy, The Commander’s Handbook on the Law of Naval Operations (2007), Ch. 2.5.4.1. 45 Daniel P. O’Connell, Mid-Ocean Archipelagos in International Law, BYIL 45 (1971), 1, 33–36, 40. 46 Kevin Baumert/Brian Melchior, The Practice of Archipelagic States, ODIL 46 (2014), 60, 73. 47 Ibid. 48 Hugo Caminos/Vincent P. Cogliati-Bantz, The Legal Regime of Straits: Contemporary Challenges and Solutions (2014), 472. 40 41

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navigation. State practice has largely been consistent with Art. 53 in this respect, although the possible exception is Indonesia. In 1996, Indonesia submitted a proposal to the IMO for the designation of three sea lanes running north-south through its archipelagic waters. 49 JOHNSON notes that this was subject to objections by other States, especially Australia and the US. 50 Subsequently, this was implemented under Regulation No. 37 of 2002. 51 This partial designation of sea lanes (i. e. Indonesia accepted other navigation routes existed) was approved by the IMO in accordance with Art. 53 (9).52 At the same time however, Indonesia has not designated the sea lanes travelling in the east-west direction, and Art. 3 of Regulation No. 37 makes no mention of archipelagic sea lanes passage in that direction. The Regulation states: ‘Pursuant to this regulation, to exercise the right of archipelagic sea lane passage in other parts of Indonesian waters can be conducted after such a sea lane has been designated in those waters for the purpose of this transit.’53 However, as the US Department of State notes, this ‘appears to limit impermissibly the exercise of archipelagic sea lanes passage to designated sea lanes’ because it is worded in such a way that it only explicitly recognises archipelagic sea lanes passage in designated sea lanes, and appears to suggest that archipelagic sea lanes passage can only be exercised therein. 54 This would be contrary to Art. 53 (12).55

5. ‘traffic separation schemes’ Art. 53 (6) permits an archipelagic State to prescribe traffic separation schemes with sea 15 lanes. A traffic separation scheme is ‘a routeing measure aimed at the separation of opposing streams of traffic by appropriate means and by the establishment of traffic lanes’. 56 Traffic lanes are further defined as areas within defined limits in which one-way traffic is established.57 There is no duty to introduce traffic separation schemes, and unless one has been adopted there is no separation of traffic in a sea lane.58 This provision corresponds to Art. 41 (1), and is likewise intended to help secure safety of navigation. 59

6. ‘shall conform to generally accepted international regulations’ Art. 53 (8) requires sea lanes and traffic separation schemes to conform to generally 16 accepted international regulations. This provision repeats verbatim Art. 41 (3) and should be construed similarly.60 The reference to international regulations principally concerns the International Regulations for Preventing Collisions at Sea 1972, International Convention for the Safety of Life at Sea 1974 (SOLAS 1974) routeing requirements and related IMO 49 IMO, Safety of Navigation: Designation of Certain Sea Lanes and Air Routes thereabove through Indonesian Archipelagic Waters – Note by Indonesia, IMO Doc. MSC 67/7/2 (1996). 50 Constance Johnson, A Rite of Passage: The IMO Consideration of the Indonesian Archipelagic Sea-Lanes Submission, IJMCL 15 (2000), 327. Comments by States are noted in: IMO MSC, Report of the Maritime Safety Committee on its Sixty-Seventh Session, IMO Doc. MSC 67/22 (1996), 28. 51 Indonesian Government Regulation No. 37 on the Rights and Obligations of Foreign Ships and Aircraft Exercising the Right of Archipelagic Sea Lanes Passage through Designated Archipelagic Sea Lanes, June 28 2002, reproduced in: LOSB 52 (2003), 20–40. 52 IMO, Adoption, Designation and Substitution of Sea Lanes, IMO Res. MSC 72(69) 19 May 1998. 53 Indonesian Government Regulation No. 37 on the Rights and Obligations of Foreign Ships and Aircraft Exercising the Right of Archipelagic Sea Lanes Passage through Designated Archipelagic Sea Lanes, June 28 2002, reproduced in: LOSB 52 (2003), 20, 21 (Art. 3 (2)). 54 Limits in the Seas No. 141 Indonesia (note 37), 4. 55 See infra, MN 20–21. 56 IMO, General Provisions on Ships’ Routeing IMO Res. A.572(14) of 20 November 1985, Annex (para. 2.1.2). 57 Ibid., para. 2.1.4. 58 IMO, Adoption of Amendments to the General Provisions on Ships’ Routeing, IMO Res. MSC.71(69) of 19 May 1998, Annex 2 (para. 6.4). 59 See also Jia on Art. 41 MN 6–9. 60 See Jia on Art. 41 MN 12.

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guidance.61 Some States seek to regulate the passage of certain vessels or cargoes in ways not envisaged by international regulations. One example is that of Mauritius whose Maritime Zones Act seeks to restrict the exercise of archipelagic sea lanes passage by requiring permission for its exercise by vessels carrying radioactive material. 62 Regulations of this type would not fall within the scope of Art. 53 (8) since they are not ‘generally accepted international regulations’, and would impermissibly restrict the right of archipelagic sea lanes passage.

7. ‘the competent international organization’ Art. 53 (9) requires an archipelagic State to refer proposals concerning the designation, or substitution of sea lanes and traffic separation schemes to the ‘competent international organization with a view to their adoption.’ Despite some initial reservations by Indonesia, 63 the IMO is generally recognised as the competent organisation in this context, as well as in other areas of the Convention.64 As noted above, the IMO has played an important role in helping to negotiate the establishment of archipelagic sea lanes.65 WARNER notes that although Art. 53 (9) suggests that the referral of proposals to the IMO is a prerequisite of the designation of archipelagic sea lanes, the precise scope of its involvement is not defined. 66 MUNAVVAR notes that the function of the international organisation does not appear to be to guarantee the right of passage, or compel archipelagic States to designate lanes. 67 Rather it is to ensure that sea lanes as designated are suitable for passage, that they include routes normally used for international navigation, and are consistent with generally accepted international regulations. Although true as a matter of legal competence, this perhaps understates the role of the IMO since it will provide a forum for the mediation of any interests, and this is crucial in maintaining a balance of interests between maritime interests and littoral States. Moreover, the IMO itself indicates that it will ‘retain continuing jurisdiction (competence) over the process of adopting archipelagic sea lanes until such time that sea lanes including all normal passage routes have been adopted as required by UNCLOS’.68 This emphasises the safeguarding function of the IMO during the process of designating sea lanes, and is reflected in the fact that sea lanes only come into force once adopted by the IMO.69 When considering proposals for adoption, the IMO will have regard to ‘aids to navigation, hydrographic surveys and nautical charts of the area, as well as the configuration of the archipelagic State’, as well as routeing measures.70 18 The role of the International Civil Aviation Organization (ICAO) in the process of adopting sea lanes is less clear. In the above-mentioned discussions between Australia and Indonesia, the ICAO also sought a role in approving air routes above archipelagic sea lanes. 71 In its response to the ICAO submission to the sixty-ninth session of the IMO’s Maritime Safety Committee (MSC 69), the Australian government nevertheless took the view that the designation of air routes would be ‘indivisible’ from the designation of the sea lanes. The ICAO’s role was 17

61 See Reg. 10, Ch. V SOLAS 1974; IMO Res. A.572(14) of 20 November 1985: General Provisions on Ships’ Routeing, Annex; see also IMO, Ships’ Routeing (13th edn. 2013). 62 See Art. 10 (3) of the Maritime Zones Act 2005, Act No. 2 of 2005, reproduced in: LOSB 62 (2007), 52, 55. 63 Hasjim Djalal, Indonesia and the Law of the Sea (1995), 412. 64 The IMO is specifically recognised as such in the table listing the competent organisations for each part of the Convention prepared by UN DOALOS see: LOSB 31 (1996) 81. See also, IMO, Implications of the United Nations Convention on the Law of the Sea for the International Maritime Organization: Study Produced by the Secretariat of the International Maritime Organization, IMO Doc. LEG/MISC.7 (2012). 65 See supra, MN 7–8. 66 Warner (note 26), 175. 67 Mohamed Munavvar, Ocean States: Archipelagic Regimes in the Law of the Sea (1995), 169. 68 IMO, Adoption of Amendments to the General Provisions on Ships’ Routeing IMO Res. MSC.71(69) of 19 May 1998, Annex 2 (para. 3.5). 69 Ibid., para. 3.13. 70 Ibid., paras. 4.2–4.3. 71 See supra, MN 8 and ICAO, Proposal, IMO Doc. MSC 69/5/6 of 13 March 1998.

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considered to be limited to the regulation of civil aviation exercising passage, and not the designation of the routes themselves.72 As such, the ICAO is only consulted on proposals. In practice, the IMO will disseminate proposals to all governments and the ICAO to ensure that they have sufficient opportunity to comment.73

8. ‘Ships in archipelagic sea lanes passage shall respect applicable sea lanes and traffic separation schemes’ Art. 53 (11) places an obligation on ships exercising archipelagic sea lanes passage to 19 ‘respect applicable sea lanes and traffic separation schemes’. This includes adherence to the provisions of Art. 39, which applies mutatis mutandis to the current provisions on sea lanes. Although the provision does not explicitly state its application to ships of the archipelagic State, NORDQUIST et al. argue that this must be so, otherwise the objective of safe navigation would be frustrated.74 However, they continue to make an exception for small local traffic working between the islands of the archipelago.75 A sensible position to take is that whilst local traffic might sail freely outwith sea lanes, such vessels should not be entitled to completely disregard the specific navigational rules set for sea lanes, particularly when large vessels are travelling through or within designated sea lanes and areas subject to traffic separation schemes.

9. ‘If an archipelagic State does not designate sea lanes […]’ Art. 53 (12) addresses the situation where the archipelagic State, for whatever reason, fails 20 to designate sea lanes or air routes in accordance with Art. 53. In such cases, the right of archipelagic sea lanes passage may still be exercised using the ‘routes normally used for international navigation’. Ships navigating such routes would still need to comply with the conditions of archipelagic sea lanes passage generally, and the archipelagic State would be unable to obstruct, hamper or suspend it. Since residual navigation rights remain in the absence of sea lanes, this means that absent any designated sea lanes, submarines may transit archipelagic waters submerged.76 The domestic law of archipelagic States is silent on this point of detail. Notably, the US maintains that submarines enjoy this mode of passage. 77 Indicative of the contrary view is BATONGBACAL, who notes that submerged passage poses considerable navigational hazards in most Philippines waters and indicates that the Philippines would construe ‘normal’ more restrictively.78 The clandestine nature of submerged passage means it is problematic to identify State practice and corresponding protest or acquiescence. As such it is difficult to conclude authoritatively on how this provision has been interpreted. Although air routes are mentioned in connection with designation, there is no subsequent 21 mention of a right of overflight of archipelagic waters when air routes are not designated. Since aircraft do not enjoy the right of innocent passage through archipelagic waters, this raises questions as to the rights enjoyed by aircraft in such situations. 79 This is likely a minor drafting oversight and aircraft will enjoy rights of overflight. As noted above, Indonesia has attempted to restrict foreign military overflight of archipelagic sea lanes. 80 However, it is the 72

Warner (note 26), 185–186. IMO, Adoption of Amendments to the General Provisions on Ships’ Routeing IMO Res. MSC.71(69) of 19 May 1998, Annex 2 (para. 3.3). 74 Nordquist/Nandan/Rosenne (note 2), 479. 75 Ibid., 479–480. 76 Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 128. 77 US Navy (note 44), Ch. 2.5.4.1. 78 Batongbacal (note 43), 61–62. 79 Churchill/Lowe (note 75), 128. 80 See supra, MN 11. 73

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view of the Secretariat of the ICAO that existing air routes will continue in use unless substituted by the archipelagic State.81 This position is supported by the practice of a number of archipelagic States.82

Article 54 Duties of ships and aircraft during their passage, research and survey activities, duties of the archipelagic State and laws and regulations of the archipelagic State relating to archipelagic sea lanes passage Articles 39, 40, 42 and 44 apply mutatis mutandis to archipelagic sea lanes passage. Bibliography: Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); Erik Frankx (ed.) Pollution and Coastal State Jurisdiction: The Work of the ILA Committee on Coastal State Jurisdiction Relating to Marine Pollution 1991–2000 (2001); James Harrison, Making the Law of the Sea (2011); Erik J. Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution (1998); Mohamed Munavvar, Ocean States: Archipelagic Regimes in the Law of the Sea (1995); Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Alan Khee-Jin Tan, Vessel-Source Marine Pollution: The Law and Politics of International Regulation (2006) Documents: IMO, SOLAS Consolidated Edition (2014); San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994) Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Duties of ships and aircraft during archipelagic sea lanes passage . . . . . . . . . . . . . . 2. Research and survey activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Laws and regulations of archipelagic States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Duties of archipelagic States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Enforcement jurisdiction in respect of marine pollution . . . . . . . . . . . . . . . . . . . . . . . .

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Art. 54 establishes the duties of ships and aircraft engaged in the use of, or passage through or over archipelagic sea lanes. It also establishes the duties of archipelagic States, as well as the scope of domestic laws relating to archipelagic sea lanes. This is done through a simple cross reference to the corresponding provisions on transit passage through straits used for international navigation as contained in Arts. 39, 40, 42 and 44. These provisions apply mutatis mutandis meaning that only those changes necessary to make sense of the application of these provisions to archipelagic sea lanes are to be made. The nature of the rights and duties set forth are not affected.1 Thus Art. 39, which concerns the duties of ships and aircraft during transit passage, applies equally to ships in archipelagic sea lanes. Art. 40 places limitation on ships transiting straits from conducting research and survey activities, limitations which apply to 81 ICAO, Consideration of the Report of the Rapporteur on ‘United Nations Convention on the Law of the Sea – Implication, if any, for the Application of the Chicago Convention, its Annexes and Other International Air Law Instruments’, ICAO Doc LC/26-WP-5-1 (1985), reproduced in: NILOS, International Organizations and the Law of the Sea Documentary Yearbook 3 (1987), 241, 254 (para 10.6). 82 Antigua and Barbuda: S. 15(B)(4) Maritime Areas Act 1982 (Act No. 18 of 17 August 1982); Bahamas: S. 11 Archipelagic Waters and Maritime Jurisdiction Act 1993 (Act No. 37 of 1993); Fiji: S. 9(A)(4) Marine Spaces Act No. 18 of 1977; Kiribati: S. 9(4) Maritime Zones (Declaration) Act 1983 (Act of 16 May 1983); Seychelles: S. 18 (5) Maritime Zones Act 1999 (Act No. 2 of 1999), as amended by the Maritime Zones (Amendment) Act 2009 (Act No. 5 of 2009); Solomon Islands: S. 10 (4) Delimitation of Marine Waters Act 1978 Act No. 32 of 21 December 1978. 1 For an example of another mutatis mutandis clause within UNCLOS, see Maggio on Art. 80.

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ships in archipelagic sea lanes. Art. 42, which sets forth the parameters of border States’ regulatory authority over transit passage, applies likewise to archipelagic States’ regulation of sea lanes. Lastly, Art. 44 defines the duties of States bordering straits, duties which apply to archipelagic States in respect of archipelagic sea lanes passage. The effect of this rule of reference is to assimilate the regime of archipelagic sea lanes passage to the regime of transit passage.2 It also limits the sui generis aspects of the regime of archipelagic waters, at least as regards navigation. Art. 54 should be read in conjunction with Art. 53 concerning the designation and operation of archipelagic sea lanes.

II. Historical Background Since Art. 54 is the product of negotiations at UNCLOS III, it has no background 2 predating this period. Negotiations at UNCLOS III were characterised by a division between archipelagic States, who favoured the incorporation of detailed and tailored provisions on rights of archipelagic sea lanes passage, and States who favoured the assimilation of such passage to the emerging regime for passage through straits used for international navigation. The former position was first advanced in a joint proposal by Fiji, Mauritius, Indonesia and the Philippines at the 1973 session of the Sea-Bed Committee3, and again at the Second Session of UNCLOS III.4 These proposals were closely based upon the right of coastal States to regulate innocent passage and the duties of ships to comply with the same. At the Third Session, the Bahamas ‘18 Principles proposal’ made the distinction between innocent passage and the specific regime of archipelagic sea lanes passage which was subject to the same regime as for straits.5 NORDQUIST et al. note that this marked a fundamental change from the former approach which was based upon innocent passage.6 The Informal Single Negotiating Text (ISNT) adopted in 1975 reflected the move towards a regime based upon transit passage, but still favoured setting out the rules in full detail in draft Arts. 125 to 129. 7 When the Revised Single Negotiating Text was drafted in 1976, these detailed provisions were condensed down into two articles. Art. 126 contained a cross reference to the emergent provisions on transit passage, whilst Art. 127 retained the ISNT text on research and survey activities.8 Subsequent attempts made by the Philippines9 and Indonesia10 at the Fifth Session (1976) to restore the full text of the relevant articles on transit passage but with scope for modifications particular to archipelagic sea lanes were rejected. The development of a specific rule on research and survey activities allowed for the Informal Composite Negotiating Text (1977) to further consolidate the provisions into a single article, Art. 54. 11 This remained 2 This assimilation is also found in Part II, Section II of the San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), available at https://www.icrc.org/ihl/INTRO/560?OpenDocument. 3 Seabed Committee, Fiji et al.: Proposal to the Sea-Bed Committee, UN Doc A/AC.138/SC.II/L.48 (1973), GAOR 28th Sess. Suppl. 21 (A/9021-III), 102, 104–105 (Art. V (5)-(8)). 4 Second Committee UNCLOS III, Fiji et al.: Draft Articles Relating to Archipelagic States, UN Doc A/ CONF.62/C.2/L.49 (1974), OR III, 226 (Art. 5 (5)-(8)). 5 Reproduced in: Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 405–406. 6 Ibid., 483. 7 UNCLOS III, Informal Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/PART II (1975), OR IV, 152, 170 (Arts. 125–129). 8 UNCLOS III, Revised Single Negotiating Text, A/CONF.62/WP.8/REV.1/Part II (1976), OR V, 151, 171 (Arts. 126–127). 9 Second Committee UNCLOS III, Philippines: Articles 119–127 (RSNT II) (1977, mimeo.), reproduced in: Renate Platzo¨der (ed.), Third United Nations Conference on the Law of the Sea: Documents, vol. IV (1982), 472, 474–476. 10 Second Committee UNCLOS III, Indonesia: Article 126 (RSNT II) (1977, mimeo.), reproduced in: Platzo ¨ der (note 9), 476, 478–479. 11 UNCLOS III, Informal Composite Negotiating Text, UN Doc. A/CONF.62/WP.10 (1976), OR VIII, 1, 13 (Art. 54).

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unchanged to the final text. A further attempt by the Philippines at the Seventh Session to restore the detailed rules on transit passage, but excluding reference to aircraft and overflight, was unsuccessful.12

III. Elements 1. The duties of ships and aircraft during archipelagic sea lanes passage Art. 39 concerns the duties of ships and aircraft during transit passage. 13 By extension it applies to ships and aircraft engaged in the use of archipelagic sea lanes. Both ships and aircraft are required to proceed without delay through the archipelagic sea lanes, as per Art. 39 (1)(a). They must refrain from any threat or use of force against the sovereignty, territorial integrity or political independence of the archipelagic State (� Art. 46 (a)), or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations, as per Art. 39 (1)(b). Ships and planes must refrain from activities that are not incidental to their normal modes of continuous and expeditious passage, as per Art. 39 (1)(c). Art. 39 (1)(d) further requires compliance with other provisions of Part III. By implication, this includes respecting sea lanes and traffic separation schemes adopted under Art. 41, compliance with duly adopted domestic laws and regulations concerning passage under Art. 42, and compliance with the terms of any navigation or pollution agreement adopted under Art. 43. 4 Ships are specifically required to comply with generally accepted international regulations procedures and practices for safety at sea, including the International Regulations for Preventing Collisions at Sea. They must also comply with generally accepted international regulations, procedures and practices for preventing, reducing and controlling pollution at sea. 14 5 Aircraft are specifically required to observe the International Civil Aviation Organisation’s ‘Rules of the Air’ as they apply to civil aircraft.15 State aircraft will normally comply with such safety measures, and will at all times operate with due regard to the safety of navigation. All aircraft will monitor radio frequencies assigned by the competent internationally designated air traffic control authority or appropriate international distress radio frequencies. 3

2. Research and survey activities 6

Art. 40 regulates the conduct of research and survey activities. 16 Transiting foreign ships, including research and survey vessels, must not engage in any research or survey activities without the prior authorisation of the archipelagic State.

3. Laws and regulations of archipelagic States 7

Art. 42 concerns laws and regulations of coastal States relating to transit passage. The reference in Art. 54 to Art. 42 confirms that the archipelagic State has to regulate the following matters within archipelagic sea lanes: the safety of navigation and regulation of maritime 12 Second Committee UNCLOS III, Informal Suggestion by the Philippines, UN Doc. C.2/Informal Meeting/20 (1978, mimeo.), reproduced in: Renate Platzo¨der (ed.), Third United Nations Conference on the Law of the Sea: Documents, vol. V (1982), 26, 28 (Art. 54). 13 See Jia on Art 39 MN 1–2. 14 Such generally accepted rules include: International Convention on Load Lines; International Convention on Tonnage Measurement for Ships; International Convention for the Prevention of Pollution from Ships 1973, as amended by the Protocol of 1978 relating thereto; International Convention for the Safety of Life at Sea (SOLAS) 1974 (the IMO publishes a consolidated version: See IMO, SOLAS Consolidated Edition (2014)); International Convention on Standards of Training, Certification and Watchkeeping for Seafarers 1978 (as amended in 1995 and 2010). On generally accepted rules, see further: James Harrison, Making the Law of the Sea (2011), 171–179. 15 Rules of the Air refers to Annex 2 to the Convention on International Civil Aviation 1944 (as amended). The consolidated amended text is available at http://www.icao.int/publications/Documents/7300_cons.pdf. 16 See generally Jia on Art. 40.

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traffic, as provided in Art. 41, as per Art. 42 (1)(a); the prevention, reduction and control of pollution, by giving effect to international regulations regarding the discharge of oil, oily wastes and other noxious substances, as per Art. 42 (1)(b); the prevention of fishing, including the stowage of fishing gear, as per Art. 42 (1)(c); and the loading or unloading of commodity, currency or person in contravention of laws or regulations of the archipelagic state, as per Art. 42 (1)(d). Any such laws and regulations must be non-discriminatory in form or in fact, nor have the practical effect of denying, hampering or impairing the right of sea lanes passage as per Art. 42 (2). Finally, the archipelagic State must give due publicity to such laws and regulations, as per Art. 42 (3). Foreign ships exercising the right of archipelagic sea lanes passage shall comply with such 8 laws, as per Art. 42 (4). In the case of vessels entitled to sovereign immunity, a breach of such laws and regulations entails the international responsibility of the flag State for any loss or damage resulting to the archipelagic State, as per Art. 42 (5).

4. Duties of archipelagic States Art. 44 sets out the duty of States bordering straits, and hence the duties of archipelagic 9 States in respect of archipelagic sea lanes. Thus an archipelagic State shall not hamper archipelagic sea lanes passage. Furthermore, it is required to give appropriate notice of any danger to navigation or overflight within or over the archipelagic sea lanes of which it has knowledge. The archipelagic State is not entitled to suspend archipelagic sea lanes passage.

5. Enforcement jurisdiction in respect of marine pollution CHURCHILL & LOWE observe that there is an anomaly between archipelagic sea lanes passage 10 and transit passage through straits in that Art. 54 does not include the rights granted to coastal States under Arts. 220 and 233 relating to enforcement jurisdiction over vessels causing pollution.17 Art. 220 provides for the exercise of enforcement jurisdiction within coastal State maritime zones. Art. 233 specifically safeguards the right of strait States to take enforcement action against merchant vessels violating laws and regulations under Art. 42 and causing or threatening major damage to the marine environment of the strait. C HURCHILL & LOWE suggest that this may simply have been an oversight in the drafting of Art. 54. 18 It is noted in NORDQUIST et al. that Art. 42 should be read as incorporating Art. 233 into the regime of archipelagic waters.19 It would be consistent with the regime of sovereignty established under Art. 49 to imply the existence of enforcement jurisdiction under Art. 220 akin to territorial waters for archipelagic waters in general, and under Art. 233 for archipelagic sea lanes in particular.20 MOLENAAR’S analysis of State practice on this matter does not provide clear guidance on the extent and operation of enforcement jurisdiction. 21

17

Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 127. Ibid., 127. 19 Nordquist/Nandan/Rosenne (note 5), 487. 20 See for example Erik Frankx (ed.) Pollution and Coastal State Jurisdiction: The Work of the ILA Committee on Coastal State Jurisdiction Relating to Marine Pollution 1991–2000 (2001), 92–93; Alan Khee-Jin Tan, VesselSource Marine Pollution: The Law and Politics of International Regulation (2006), 211. 21 Erik J. Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution (1998), 357–358. 18

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PART V EXCLUSIVE ECONOMIC ZONE Article 55 Specific legal regime of the exclusive economic zone The exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention. Bibliography: Gemma Andreone, The Exclusive Economic Zone, in: Donald R. Rothwell/Alex G. Oude Elferink/ Karen N. Scott/Tim Stephens (eds.), The Oxford Handbook of the Law of the Sea (2015), 159–180; David Attard, The Exclusive Economic Zone in International Law (1987); Edward D. Brown, The Exclusive Economic Zone: Criteria and Machinery for the Resolution of International Conflicts between Different Users of the EEZ, Maritime Policy and Management 4 (1977), 325–350; Edward D. Brown, The International Law of the Sea, vol. I (1994); Jorge ~eda, Negotiations on the Exclusive Economic Zone at the Third United Nations Conference on the Law of Castan the Sea, in: Jerzy Makarczyk (ed.), Essays in International Law in Honour of Judge Manfred Lachs (1984), 605–623; Robin R. Churchill/Alan V. Lowe, Law of the Sea (3rd edn. 1999); Rene´-Jean Dupuy, The Sea under National Competence, in: Rene´-Jean Dupuy/Daniel Vignes (eds.), A Handbook on the New Law of the Sea, vol. 1 (1991), 247–314; Sir Gerald Fitzmaurice, Some Results of the Geneva Conference on the Law of the Sea, ICLQ 8 (1959), 73– 121; Ann L. Hollick, The Origins of the 200-mile Offshore Zones, AJIL 71 (1977), 494–500; Natalie Klein, Dispute Settlement in the UN Convention on the Law of the Sea (2005); Shalva Kvinikhidze, Contemporary Exclusive Fishery Zone or Why Some States Still Claim an EFZ, IJMCL 23 (2008), 271–295; Barbara Kwiatkowska, The 200 Mile Exclusive Economic Zone in the New Law of the Sea (1989); L. Dolliver M. Nelson, Exclusive Economic Zone, MPEPIL, available at: http://www.mpepil.com; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Shigeru Oda, The Concept ~a, The Exclusive Economic Zone (1989); of the Contiguous Zone, ICLQ 11 (1962), 131–153; Francisco Orrego Vicun Bernhard H. Oxman, The Third United Nations Conference on the Law of the Sea: The 1976 New York Sessions, AJIL 71 (1977), 247–269; Alexander Proelss, Ausschließliche Wirtschaftszone (AWZ), in: Wolfgang Graf Vitzthum (ed.), Handbuch des Seerechts (2006), 222–264; Alexander Proelss, The Law on the Exclusive Economic Zone in Perspective: Legal Status and Resolution of User Conflicts Revisited, Ocean Yearbook 26 (2012), 87–112; Elliot L. Richardson, Power, Mobility and the Law of the Sea, Foreign Affairs 58 (1979/80), 902–919; Donald R. Rothwell, Fishery Zones and Limits, MPEPIL, available at: http://www.mpepil.com; Donald R. Rothwell/Tim Stephens, The International Law of the Sea (2nd edn. 2016); Peter-Tobias Stoll, The Continental Shelf, MPEPIL, available at: http://www.mpepil.com; Yoshifumi Tanaka, The International Law of the Sea (2nd edn. 2015) Documents: GA Res. 1307 (XIII) of 10 December 1958; UNCED, Report of the United Nations Conference on the Environment and Development, UN Doc. A.CONF/151/26/REV.1 (Vol. I) (1992), 9 (Agenda 21) Cases: Arbitral Tribunal, Dispute Concerning Filleting within the Gulf of St. Lawrence (Canada v. France), RIAA XIX (2006), 225; ICJ, Continental Shelf (Libyan Arab Jamahiriya v. Malta), Judgment of 3 June 1985, ICJ Reports (1985), 13; ICJ, Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), Judgment of 24 February 1982, ICJ Reports (1982), 18; ICJ, Fisheries (United Kingdom v. Norway), Judgment of 18 December 1951, ICJ Reports (1951), 116; ICJ, Fisheries Jurisdiction (Germany v. Iceland), Judgment of 25 July 1974, ICJ Reports (1974), 175; ICJ, Fisheries Jurisdiction (United Kingdom v. Iceland), Judgment of 25 July 1974, ICJ Reports (1974), 3; ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Netherlands/Denmark), Judgment of 20 February 1969, ICJ Reports (1969), 3; PCA, Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award of 18 March 2015, available at: www.pca-cpa.org/MU-UK%2020150318%20Awardd4b1.pdf?fil_id=2899 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘beyond and adjacent to the territorial sea’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘subject to the specific legal regime established in this Part’ . . . . . . . . . . . . . . . . . . . .

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1–3

3. ‘rights and jurisdiction of the coastal State’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. ‘rights and freedoms of other States’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. ‘governed by the relevant provisions of this Convention’. . . . . . . . . . . . . . . . . . . . . . . .

Art. 55

19 20 21

I. Purpose and Function Art. 55 is the first provision of Part V on the exclusive economic zone (EEZ). It attempts to 1 define the concept of the EEZ and clarifies that the pertinent provisions of Part V of the Convention establish a ‘specific legal regime’. While Art. 55, in contrast to Art. 2 concerning internal waters, territorial sea and archipelagic waters, does not expressly determine the legal status of the EEZ, reference being made therein to the ‘rights and jurisdiction of the coastal State’ on the one hand and to ‘rights and freedoms of other States’ on the other indicates that the EEZ is not subjected to the sovereignty of the coastal State. Rather, the ‘specific legal regime’ that came to be accepted in the course of UNCLOS III is characterized by a combination of selected exclusive rights and jurisdiction of the coastal State and rights and freedoms of other States. Part V contains two further provisions which substantiate the rights, jurisdiction and 2 freedoms of the two groups of States mentioned in Art. 55: While Art. 56 (1) contains a list of matters over which the coastal State is entitled to exercise sovereign rights or jurisdiction, Art. 58 (1) specifies the rights and freedoms of other States. Both provisions prescribe further requirements that ought to be fulfilled by the States concerned when exercising their rights, jurisdiction and freedoms. Situations where the Convention attributes rights or jurisdiction neither to the coastal State nor to other States within the EEZ are covered by Art. 59. Art. 57 defines the breadth of the EEZ. The remainder of the provisions of Part V (1) serve to substantiate the sovereign rights of the coastal State concerning the management of marine living resources and the establishment and use of artificial islands, installations and structures, (2) prescribe special rules concerning the situation of landlocked and geographically disadvantaged States (Arts. 69 to 72), and (3) prescribe rules on the delimitation of overlapping EEZ claims between States with opposite or adjacent coasts as well as the relevance of charts and lists of geographical coordinates for the delineation of the outer limits of the EEZ and the delimitation of overlapping claims respectively (Arts. 74 and 75). As can be demonstrated by reference to the wording of Art. 56 (1)(a), which allocates to 3 the coastal State ‘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’,1 the regime of the EEZ is structurally related to that of the continental shelf. The fact that Part V does not contain a provision following the model of Art. 77 (3) indicates, however, that in contrast to the continental shelf, 2 the coastal State must claim its EEZ in order to be able to lawfully exercise its sovereign rights and jurisdiction therein. This conclusion is supported by the negotiating history3 as well as the practice of States.4 In the Libya/Malta Continental Shelf Case, the International Court of Justice (ICJ) stated that ‘[a]lthough the institutions of the continental shelf and the exclusive economic zone are different and distinct, the rights which the exclusive economic zone entails over the sea-bed of the zone are defined by reference to the re´gime laid down for the continental shelf. Although there can be a 1

Italics added. For further information, see Maggio on Art. 77 MN 23 et seq. 3 See UNCLOS III, Contribution of the Group of Land-Locked and Geographically Disadvantaged States to the “United Negoitiating Text” on the Economic Zone (1975), reproduced in: Renate Platzo¨ der (ed.), Third United Nations Conference on the Law of the Sea: Documents, vol. IV (1983), 234 (Draft Art. 1), speaking of the ‘right’ of coastal States to establish an EEZ. 4 See the references collected by David Attard, The Exclusive Economic Zone in International Law (1987), 56 et seq. 2

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Part V. Exclusive economic zone

continental shelf where there is no exclusive economic zone, there cannot be an exclusive economic zone without a corresponding continental shelf.’5

In contrast to the situation concerning the continental shelf, the EEZ is thus not subject to an ‘inherent right’6 of the coastal State. Notwithstanding the fact that Art. 56 (1)(a) also covers the ‘natural resources, whether living or non-living, […] of the seabed and its subsoil’, the two regimes must therefore be regarded as having distinct legal bases. 7 That said, if and to the extent to which the coastal State has claimed and established an EEZ above its continental shelf, the two zones form part of an integral regime. As far as the exercise of the rights of the coastal State with respect to the seabed and subsoil is concerned, Art. 56 (3) refers to Part VI on the continental shelf. This complicated (and first and foremost historically founded 8) relationship between the two regimes has been commented upon by the ICJ in the following words: ‘As the 1982 Convention demonstrates, the two institutions – continental shelf and exclusive economic zone – are linked together in modern law. […] Although the institutions of the continental shelf and the exclusive economic zone are different and distinct, the rights which the exclusive economic zone entails over the sea-bed of the zone are defined by reference to the régime laid down for the continental shelf.’9

If a coastal State refrains from claiming an EEZ, the waters superjacent to its continental shelf are subject to the regime of the high seas. Taking into account that as of today more than 140 States have claimed an EEZ, there can be no doubt that the concept itself and most parts of the regime codified in Part V have meanwhile entered the body of customary international law. As early as 1985, the ICJ stated that ‘the institution of the exclusive economic zone, with its rule on entitlement by reason of distance, is shown by the practice of States to have become a part of customary law.’10 As far as States are concerned who originally claimed an exclusive fishing zone (EFZ) and have not replaced it by an EEZ, the argument has been made that the fisheries provisions of Part V are applicable to the EFZ, taking into account that all affected States have meanwhile become parties to the Convention. 11 4 The factual importance of the regime of the EEZ cannot be overstated. Since the entry into force of the Convention, most of the world’s fish stocks have become subject to the jurisdiction of coastal States. Although EEZs worldwide only account for 8 % of the Earth’s surface (and 36 % of the world marine areas), it has been estimated that about 95 % of the capture fisheries take place in waters within 200 NM of the coast.12 These figures are accompanied by the ever 5 ICJ, Continental Shelf (Libyan Arab Jamahiriya v. Malta), Judgment of 3 June 1985, ICJ Reports (1985), 13, 33 (para. 34, italics added). 6 ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Netherlands/Denmark), Judgment of 20 February 1969, ICJ Reports (1969), 3, 22 (para. 19). 7 Peter-Tobias Stoll, The Continental Shelf, MPEPIL, para. 6, available at: http://www.mpepil.com. 8 See Maggio on Art. 77 MN 4 et seq. 9 Libya/Malta Case (note 5), 33 (paras. 33 et seq.); see also ICJ, Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), Judgment of 24 February 1982, Dissenting Opinion of Judge Evensen, ICJ Reports (1982), 18, 278, 287 (para. 9). 10 Libya/Malta Case (note 5), 33 (para. 34). See also Tunisia/Libya Case (note 9), 74 (para. 100); Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 519; Yoshifumi Tanaka, The International Law of the Sea (2nd edn. 2015), 128; Robin R. Churchill/Alan V. Lowe, Law of the Sea (3rd edn. 1999), 161 et seq., arguing that at least the broad rights of coastal and other States enumerated in Arts. 56 and 58 are part of customary international law. 11 Tanaka (note 10), 129, who refers to the Award of 17 July 1986 in the Dispute Concerning Filleting within the Gulf of St. Lawrence (Canada v. France), RIAA XIX (2006), 225, 255 (para. 49). In that award, the Arbitral Tribunal stated that it considered itself ‘autorise´ a` conside´rer qu’entre les Parties les concepts de zone e´conomique et de zone de peˆche sont tenus pour e´quivalents sous le rapport des droits qu’y exerce un Etat coˆtier sur les ressources biologiques de la mer’. See also Shalva Kvinikhidze, Contemporary Exclusive Fishery Zone or Why Some States Still Claim an EFZ, IJMCL 23 (2008), 271, 289; Donald R. Rothwell, Fishery Zones and Limits, MPEPIL, para. 19, available at: http://www.mpepil.com; Gemma Andreone, The Exclusive Economic Zone, in: Donald R. Rothwell et al. (eds.), The Oxford Handbook of the Law of the Sea (2015), 159, 163 et seq. 12 UNCED, Report of the United Nations Conference on the Environment and Development, UN Doc. A.CONF/151/26/REV.1 (Vol. I) (1992), 9 (Agenda 21), Ch. 17.70.

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growing relevance of energy production from the water, currents and winds in the EEZ. Against this background, it is not surprising that the historic origins of the EEZ regime are closely related to the desire of many coastal States to extend their jurisdiction further to the sea in order to be able to control a greater share of living and non-living marine resources. While it was frequently argued in the course of UNCLOS III that the coastal State was also the best suited actor to decide upon and implement the conservation measures necessary for safeguarding that EEZ fish stocks are managed at levels which can produce the maximum sustainable yield, this estimation has, unfortunately, not fully been proven right. 13

II. Historical Background The origins of the regime of the EEZ can be traced back to attempts by some coastal and 5 island States to extend their jurisdiction concerning fisheries to areas beyond the outer limits of their territorial seas. These attempts are embodied in the concept of preferential fisheries zone, or contiguous fishing zone respectively, which was in 1974 considered by the ICJ as ‘tertium genus between the territorial sea and the high seas’. 14 In the course of the preparations of the Hague Conference for the Codification of International Law held in 1930, under the auspices of the League of Nations, the Committee of Experts for the Progressive Codification of International Law compiled and deliberated a draft convention on territorial waters, whose Art. 2 read: ‘The zone of the coastal sea shall extend for three marine miles […]. Beyond the zone of sovereignty, States may exercise administrative rights on the ground either of custom or of vital interest. […] Outside the zone of sovereignty no right of exclusive economic enjoyment may be exercised.’15

An extension of fishery rights beyond what is today the territorial sea had thus been expressly rejected. Similarly, in 1951 the ICJ refused to allocate specific legal weight to a fisheries zone established by Norway by stating that ‘[a]lthough the Decree of July 12th, 1935, refers to the Norwegian fisheries zone and does not specifically mention the territorial sea, there can be no doubt that the zone delimited by this Decree is none other than the sea area which Norway considers to be her territorial sea.’ 16

In the course of the 1958 Geneva Convention, several proposals were submitted 17 that 6 militated in favor of accepting a 6 NM zone beyond the outer limits of the territorial sea, within which the coastal State was to be entitled to exercise ‘the same rights in respect of fishing and the exploitation of the living resources of the sea as it has in the territorial sea.’ 18 However, these proposals did not obtain the necessary 2/3 majority in the plenum of the conference,19 as it remained controversial whether the zone concerned was identical with the already accepted contiguous zone (with the jurisdictional scope of the coastal State being limited to a mere control necessary to prevent and punish infringements of its laws within the territorial sea),20 or whether the envisaged contiguous fishing zone was to be considered as an aliud, i. e., a separate zone. 13

See Harrison/Morgera on Art. 61 MN 1. ICJ, Fisheries Jurisdiction (United Kingdom v. Iceland), Judgment of 25 July 1974, ICJ Reports (1974), 3, 24 (para. 54). 15 Draft Convention amended by M. Schu ¨ cking in consequence of the discussion in the committee of experts, reprinted in: AJIL 20, No. 3, Suppl (1926), 141. 16 ICJ, Fisheries (United Kingdom v. Norway), Judgment of 18 December 1951, ICJ Reports (1951), 116, 125. 17 UNCLOS I, United States of America: Proposal (Article 3), UN Doc. A/CONF.13/C.1/L.159 (1958), OR III, 253; UNCLOS I, Canada, India and Mexico: Proposal (Article 3), UN Doc. A/CONF.13/C.1/L.77/REV.2 (1958), OR III, 232; UNCLOS I, Canada: Revised Proposal (Article 3), UN Doc. A/CONF.13/C.1/L.77/REV.3 (1958), OR III, 232. 18 Canada: Revised Proposal (note 17). 19 See UNCLOS I, Summary Records of the 14th Plenary Meeting, UN Doc. (1958), OR II, 39. 20 See Khan on Art. 33 MN 23. 14

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Part V. Exclusive economic zone

Following UNCLOS I, leading authorities initially continued to oppose acceptance of exclusive fishing rights in areas beyond the limits of the territorial sea. For example, S IR FITZMAURICE argued that ‘[u]nder general international law, and despite certain recent claims and attempts, there is no warrant for the establishment by coastal States of exclusive fishery limits separately from the proper limits of territorial waters, or for the assertion of exclusive fishery rights in areas going beyond these.’21 In the early 1960s, however, the doctrine of unity of territorial sea and fisheries zone came under increasing pressure in light of cumulating efforts of coastal and island States to gain acceptance of extending fishing rights beyond the outer limits of the territorial sea, in particular in areas of the world where coastal populations depended on fisheries, and where coastal fisheries were threatened by high seas fishing fleets operating in close distance to the territorial sea. In this respect, it is interesting to note that UNCLOS II was inter alia convened for the purpose of ‘considering further the questions of the breadth of the territorial sea and fishery limits.’22 8 The debate on the relationship between the coastal State’s sovereignty over the territorial sea on the one hand and exclusive fishing rights in areas beyond the outer limits of the territorial sea on the other was then strongly influenced by developments that ultimately resulted in the ICJ’s judgment in the Fisheries Jurisdiction Case. Notwithstanding the fact that the concept of exclusive fishing zone had not been accepted in the course of UNCLOS I, Iceland adopted a law on 30 June 1958 by which it claimed a 12 NM fishing zone attached to its territorial sea.23 Germany and the United Kingdom, whose nationals had traditionally fished in the area outside of Iceland’s territorial sea, accepted this claim only following the failure of UNCLOS II in 1960, but strongly objected to a further extension of the fishing zone to a breadth of 50 NM that had meanwhile been promised by Iceland at different occasions in the 1960s. On the basis of, and as foreseen by, two bilateral agreements that had been concluded in 1961,24 Germany and the United Kingdom brought the issue before the ICJ, following Iceland’s announcement of 14 July 1971 to extend its fishery zone to 50 NM effective from 1 September 1972. The Court held that 7

‘the question of the extent of the fisheries jurisdiction of the coastal State, which had constituted a serious obstacle to the reaching of an agreement at the 1958 Conference, became gradually separated from the notion of the territorial sea. This was a development which reflected the increasing importance of fishery resources for all States. […] Two concepts have crystallized as customary law in recent years arising out of the general consensus revealed at that Conference [UNCLOS II]. The first is the concept of the fishery zone, the area in which a State may claim exclusive fishery jurisdiction independently of its territorial sea; the extension of that fishery zone up to a 12-mile limit from the baselines appears now to be generally accepted. The second is the concept of preferential rights of fishing in adjacent waters in favour of the coastal State in a situation of special dependence on its coastal fisheries, this preference operating in regard to other States concerned in the exploitation of the same fisheries […].’25

Based on this reasoning, the Court decided that while Iceland’s unilateral extension of exclusive fishing rights to 50 NM was not opposable to Germany and the United Kingdom, and that German and United Kingdom fishing vessels could thus not be excluded from the area between the 12-mile and 50-mile limits, it considered that the parties were under a mutual obligation to undertake negotiations in good faith for an equitable solution of their differences, and that preferential rights of Iceland as well as 21 Sir Gerald Fitzmaurice, Some Results of the Geneva Conference on the Law of the Sea, ICLQ 8 (1959), 78, 118 et seq.; consenting Shigeru Oda, The Concept of the Contiguous Zone, ICLQ 11 (1962), 131, 146 et seq. 22 GA Res. 1307 (XIII) of 10 December 1958, Convening of a Second United Nations Conference on the Law of the Sea. 23 Fisheries Jurisdiction (note 14), 12 (para. 23). 24 Agreement Settling the Fishery Dispute between the Government of Iceland and the Government of the United Kingdom of Great Britain and Northern Ireland of 11 March 1961, 397 UNTS 276; Agreement Concerning the Fishery Zone around Iceland of 19 July 1961, 409 UNTS 47. 25 Fisheries Jurisdiction (note 14), 23 (para. 51 et seq.), italics added.

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9–10 Art.

55

the conservation of fishery resources in the area concerned were among the factors to be taken into account in these negotiations.26 The Court’s findings on the state of customary international law concerning the concepts 9 of fishery zone and preferential fishing rights were overtaken by developments that took place in the course of UNCLOS III. These developments were initiated by a practice of Latin American States that culminated as early as 1952 in the Declaration of Santiago adopted by Chile, Ecuador and Peru, by which the States concerned declared their view that ‘they each possess exclusive sovereignty and jurisdiction over the sea along the coasts of their respective countries to a minimum distance of 200 nautical miles from these coasts.’ 27 While this course of action, being closely related to political pressure exercised by the national whaling industries,28 could not be regarded as being in conformity with the law as it stood at that time, the legal situation was not as clear in 1970, when the Declarations of Montevideo 29 and Lima30 were adopted. These documents emphasized the existence of the rights 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’.31 Indeed, it is the economic imprint embodied in this language that characterizes the regime of the EEZ until this day. With the Declaration of Santo Domingo,32 several Caribbean States then claimed the existence of a patrimonial sea characterized by, inter alia, (1) the existence of sovereign rights of the coastal State over the renewable and non-renewable natural resources, (2) a maximum breadth of 200 NM, and (3) the persisting right of freedom of navigation and overflight (note: not innocent passage!) of other States.33 The close affinity of these elements to what is now codified in Part V is striking. The approach taken by the Latin American States was echoed at the beginning of the 1970s 10 in the work of the Asian-African Legal Consultative Committee. Following its decision taken in 1970 to also address law of the sea issues, Kenya was the first State to submit a working paper entitled ‘The Exclusive Economic Zone Concept’.34 According to its Art. II, ‘[a]ll states have the right to establish an Economic Zone beyond the territorial sea for the primary benefit of their peoples and their respective economies in which they shall exercise sovereign rights over natural resources for the purpose of exploration and exploitation. Within the zone they shall have exclusive jurisdiction for the purpose of control, regulation and exploitation of both living and non-living resources of the Zone and their preservation, and for the purpose of prevention and control of pollution.’

The 1973 Declaration of the Organization of African Unity on the Issues of the Law of the Sea adopted core elements of the Kenyan proposal and argued in favour of accepting a maximum breadth of 200 NM of that zone.35 Both documents insisted on the exclusive jurisdiction of the coastal State being without prejudice to the exercise of freedom of navigation, freedom of overflight and freedom to lay submarine cables and pipelines of other States.36 26 Ibid., 34 et seq. (para. 79); ICJ, Fisheries Jurisdiction (Germany v. Iceland), Judgment of 25 July 1974, ICJ Reports (1974), 175, 205 et seq. (para. 77). 27 Declaration on the Maritime Zone of 18 August 1952, para. II, 1006 UNTS 325. 28 See Ann L. Hollick, The Origins of the 200-mile Offshore Zones, AJIL 71 (1977), 494, 495 et seq. 29 Montevideo Declaration on the Law of the Sea of 8 May 1970, AJIL 64 (1970), 1021. 30 Declaration of Latin American States on the Law of the Sea of 8 August 1970, ILM 10 (1971) 207. 31 Montevideo Declaration, para. 1. The Declaration referred to the 200 NM zone only in its preamble. 32 Declaration of Santo Domingo of 9 June 1972, AJIL 66 (1972), 918. 33 Ibid., paras. 1, 3 and 5. 34 Sea-Bed Committee, Kenya: Draft Articles on Exclusive Economic Zone Concept, UN Doc. A/AC.138/SC.II/ L.10 (1972), GAOR 27th Sess. Suppl. 21 (A/8721), 180. 35 ILM 12 (1973), 1246 (para. 6); a slightly amended version of that declaration was submitted in the course of UNCLOS III, see UNCLOS III, Declaration of the Organization of African Unity on the Issues of the Law of the Sea, UN Doc. A/CONF.62/33 (1974), OR III, 63. 36 Kenya: Draft Articles (note 34), Art. III; Declaration of the Organization of African Unity (note 35), para. 7.

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Kenya (in 1972) on the one hand, and Colombia, Mexico and Venezuela (in 1973) on the other, submitted their proposals to the Seabed Committee.37 Other States followed,38 but the language used in order to describe the legal position varied between ‘exclusive jurisdiction’, 39 ‘sovereign rights’,40 ‘sovereignty’41 and ‘exclusive jurisdiction and control’.42 Notwithstanding a considerable degree of debate on the exact nature and scope of the coastal State’s rights, however, the fact remained that most States agreed that the zone concerned was to be differentiated from the territorial sea, and that the resource-oriented rights of the coastal States were to be regarded as being exclusive.43 12 In the course of the 1974 Caracas Session of UNCLOS III, all proposals concerning the EEZ were collected in one single working paper.44 These conceptions reflected essentially three different notions concerning the legal status of the EEZ: (1) the EEZ as an extended territorial sea with some limitations on the coastal State’s sovereignty in areas beyond the territorial sea sensu stricto; (2) the EEZ as part of the high seas with exclusive usage rights in favour of the coastal State; and (3) the EEZ as sui generis regime, following the model of the patrimonial sea concept. As demonstrated by NORDQUIST ET AL., it was not before the Third Session (1975) that the conceptual confusion was resolved in favour of accepting a 12 NM territorial sea and an EEZ located beyond the outer limits of the territorial sea following the lines of what is today Art. 55.45 Although a first proposal on a comprehensive set of provisions establishing the regime of the EEZ submitted by the Informal Group of Juridical Experts (Evensen group),46 whose impact on the development of the regime of the EEZ cannot be overestimated, had initially met with criticism from both the Group of 77 and the land-locked and geographically disadvantaged States,47 it was ultimately agreed to include the articles on the EEZ in the Informal Single Negotiating Text (ISNT),48 apparently following informal consultations that were initiated by the Second Committee on 4 April 1975. 49 Art. 45 ISNT spoke of ‘an area beyond and adjacent to its territorial sea, described as the exclusive economic zone’, but then directly moved on to the list of sovereign rights and jurisdiction that is today codified in Art. 56. This reflects the fact that the compromise that had been agreed upon by the members of the informal consultation group did not extend to the issue of the legal status of the EEZ. 13 The question of the legal status of the EEZ more and more came to the fore since the beginning of the Fourth Session in 1976. The chairman of the Second Committee stated in his introductory remarks to Part II of the Revised Single Negotiating Text (RSNT) 11

37 Kenya: Draft Articles (note 34); Sea-Bed Committee, Colombia, Mexico and Venezuela: Draft Articles on Treaty, UN Doc. A/AC.138/SC.II/L.21 (1973), GAOR 28th Sess., Suppl. 21 (A/9021-III), 19, Arts. 4 et seq. 38 See, e. g., Sea-Bed Committee, Iceland: Jurisdiction of Coastal States over Natural Resources of the Area Adjacent to their Territorial Sea, UN Doc. A/AC.138/SC.II/L.23 (1973), GAOR 28th Sess., Suppl. 21 (A/9021-III), 23; Sea-Bed Committee, China: Sea Area within the Limits of National Jurisdiction, UN Doc. A/AC.138/SC.II/ L.34 (1973), GAOR 28th Sess., Suppl. 21 (A/9021-III), 71, para. 2; Sea-Bed Committee, Australia and Norway: Certain Basic Principles on an Economic Zone and on Delimitation, UN Doc. A/AC.138/SC.II/L.36 (1973), GAOR 28th Sess., Suppl. 21 (A/9021-III), 77. 39 China: Sea Area within the Limits of National Jurisdiction (note 38), para. 2.2. 40 Kenya: Draft Articles (note 34), Art. II; Colombia, Mexico and Venezuela: Draft Articles (note 37), Art. 4. 41 Colombia, Mexico and Venezuela: Draft Articles (note 37), Art. 5. 42 Iceland: Jurisdiction of Coastal States (note 38). 43 Nordquist/Nandan/Rosenne (note 10), 515. 44 UNCLOS III, Working Paper of the Second Committee: Main Trends, Part V, UN Doc. A/CONF.62/L.8/ REV.1 (1974), OR III, 107, 120 et seq. (Annex II, Appendix I). 45 Nordquist/Nandan/Rosenne (note 10), 516. 46 UNCLOS III, Tentative Draft Articles for a Convention on the Law of the Sea (1974, mimeo.) reproduced in: Renate Platzo¨der (ed.), Third United Nations Conference on the Law of the Sea: Documents, vol. XI (1987), 393, 398 et seq. (Arts. 11 et seq.). 47 Nordquist/Nandan/Rosenne (note 10), 500. 48 UNCLOS III, Informal Single Negotiating Text, Part II, UN Doc. A/CONF.62/WP.8/PART II (1975), OR IV, 152, 159 (Arts. 45 et seq.). 49 Cf. UNCLOS III, Statement of the Work of the Second Committee, UN Doc. A/CONF.62/C.2/L.89/REV.1 (1975), OR IV, 195, 196 (para. 5).

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that ‘[t]he matter on which the Committee was perhaps the most divided was whether or not the exclusive economic zone should be included in the definition of the high seas.’50 At the Fifth Session, Poland, commenting on the pertinent provisions of the RSNT, submitted a first proposal for a separate article addressing the legal status of the EEZ, 51 but for the time being this approach remained unsuccessful. Even the President of UNCLOS III considered the status question as one of the key issues of the entire conference. He demanded that ‘[a] compromise must be reached on the contentious issue whether or not the exclusive economic zone should be included in the definition of high seas or be treated as a zone sui generis, being neither high seas nor territorial sea. The unique nature of the exclusive economic zone concept makes it imperative that the provisions governing the exercise of rights and the fulfilment of duties within it be as explicit as possible.’52

Against this background, the Second Committee decided to address the status issue as one out of three priority matters of its work in the Sixth Session.53 The breakthrough was finally ~eda Group54 which submitted a set of articles on the achieved by the informal Castan outstanding aspects of the EEZ regime.55 For the first time, it adopted a provision drafted in similar terms to what later became Art. 55, which read: ‘The exclusive economic zone is an area beyond the and adjacent to the territorial sea, subject to the specific legal regime established in this Chapter, under which the rights and jurisdictions of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of the present Convention.’56

This text was later included as Art. 55 of the Informal Composite Negotiating Text 57 and, with the exception of a recommendation submitted by the drafting committee to adjust the term ‘jurisdictions’ to the singular,58 remained unchanged until the end of UNCLOS III.

III. Elements 1. ‘beyond and adjacent to the territorial sea’ The phrase that the EEZ ‘is an area beyond and adjacent to the territorial sea’ clarifies 14 that the EEZ, as regards its location as well as its legal status (see infra, MN 15–18), ought to be distinguished from the territorial sea, over which the coastal State exercises sovereignty (Art. 2 (1)). It has correctly been stated that the words ‘beyond and adjacent’ carry the same meaning as in the context of Art. 2,59 which is why Art. 55 covers the waters that are located directly seaward of the outer limits of the territorial sea as established in 50 UNCLOS III, Revised Single Negotiating Text, Part II, Introductory Note, UN Doc. A/CONF.62/WP.8/ REV.1/PART II (1976), OR V, 151, 153 (para. 14). 51 UNCLOS III, Poland, Articles 44–46 (RSNT II), reproduced in: Renate Platzo ¨ der (ed.), Third United Nations Conference on the Law of the Sea: Documents, vol. IV (1983), 407. The relevant part of the proposal read: ‘The economic zone is that part of the high seas in which the coastal state exercises the sovereign rights and jurisdiction as provided for in this Convention.’ 52 UNCLOS III, Note by the President of the Conference, UN Doc. A/CONF.62/L.12/REV.1 (1976), OR VI, 122, 123 (para. 12). 53 UNCLOS III, Summary Records of Meetings of the General Committee: 31st Meeting, UN Doc. A/ CONF.62/BUR/SR.31 (1977), OR VII, 21, 22 (para. 5). ~eda Group was a private group jointly chaired by the ambassadors of Mexico and Norway, Jorge 54 The Castan ~eda and Helge Vindenes. Castan 55 The texts are reproduced in: Platzo ¨ der (note 51), 419 et seq., 424 et seq. and 426 et seq. 56 See UNCLOS III, New Article Preceding Article 44 (RSNT II) (1977, mimeo.), reproduced in: Platzo ¨ der (note 51), 419; UNCLOS III, Article 43bis (RSNT II) (10 July 1977, mimeo.), reproduced in: ibid., 424; UNCLOS III, New Article 43bis (RSNT II) (12 July 1977, mimeo.), reproduced in: ibid., 426. 57 UNCLOS III, Informal Composite Negotiating Text, UN Doc. A/CONF.62/WP.10 (1977), OR VIII, 1, 13 (Art. 55). 58 Nordquist/Nandan/Rosenne (note 10), 519. 59 Ibid., 520; see also Barnes on Art. 2 MN 14 et seq.

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accordance with Art. 4. In contrast, the term ‘adjacent’ as used by Art. 74 refers to the possible lateral boundaries of the EEZ.60

2. ‘subject to the specific legal regime established in this Part’ By submitting the rights of coastal and other States to ‘the specific legal regime established in this Part’, the second element of Art. 55 is related to the question of the legal status of the EEZ. As demonstrated above, the issue belonged to the most controversial aspects of the work of the Second Committee of UNCLOS III. Usually, the EEZ is described as constituting a sui generis zone,61 a term which is intended to reveal the compromise that was achieved in the course of UNCLOS III, and which is embodied today in Part V. Following a statement made by the Chairman of the Second Committee in 1976,62 most commentators thus take the position that the EEZ is neither territorial sea nor part of the high seas. 63 Others argue, however, that the freedoms of other States codified in Art. 58 are allegedly the same as those applicable outside the EEZ64 and advance the view that the EEZ remains ‘an overlay on the high seas’.65 It has also been stated that the terms of the Convention allow arguments to be made in favour of both positions.66 16 If one examines the relevant provisions of the Convention in detail, one must conclude that Art. 55 does not clearly militate in favour of either of the views taken on the legal status of the EEZ. It is sufficiently illustrated by the wording of that provision, however, that the EEZ cannot be considered as part of the State territory, but that it constitutes a zone within which the coastal State is entitled to exercise functionally limited sovereign rights and jurisdiction. While the negotiating history of the regime of the EEZ in general and Art. 55 in particular seems to weigh in favour of the sui generis theory, it should not be ignored that the travaux pre´paratoires are only a supplementary means of interpretation in terms of Art. 32 of the 1969 Vienna Convention on the Law of Treaties.67 This author has presented the argument elsewhere that the main reason for the persisting ambiguity concerning the legal status of the EEZ is related to the fact that no sufficient differentiation is generally made between the categories of territory and function, and that virtually no source is taking into consideration that the EEZ is at the same time both high seas and a sui generis zone.68 Arguably, the dichotomy of the EEZ either remaining part of the high seas or constituting a sui generis regime69 does not sufficiently take 15

60

Nordquist/Nandan/Rosenne (note 10), 520. As far as can be seen, the term was used for the first time by the Chairman of the Second Committee, see RSNT Part II, Introductory Note (note 50), 153 (para. 17): ‘Nor is there any doubt that the exclusive economic zone is neither the high seas nor the territorial sea. It is a zone sui generis.’ The terminology has been accepted by the leading textbooks on the field: see Edward D. Brown, The International Law of the Sea, vol. I (1994), 218; Churchill/ Lowe (note 10), 166; Nordquist/Nandan/Rosenne (note 10), 520; Tanaka (note 10), 130; Andreone (note 11), 162. 62 RSNT Part II, Introductory Note (note 50), para. 17. ~a, The Exclusive Economic Zone (1989), 41, who states that the regime of the EEZ ‘is 63 Francisco Orrego Vicun sufficiently complete and integrated as to justify its own juridical individuality.’ See also L. Dolliver M. Nelson, ~eda, Negotiations on Exclusive Economic Zone, MPEPIL, para. 14, available at: http://www.mpepil.com; Jorge Castan the Exclusive Economic Zone at the Third United Nations Conference on the Law of the Sea, in: Jerzy Makarczyk (ed.), Essays in International Law in Honour of Judge Manfred Lachs (1984), 605, 614; Donald R. Rothwell/Tim Stephens, The International Law of the Sea (2nd edn. 2016), 87 et seq.; Tanaka (note 10), 130; Churchill/Lowe (note 10), 165 et seq.; Tunisia/Libya Case (note 9), Dissenting Opinion of Judge Oda, 157, 227 (para. 118). 64 Elliot L. Richardson, Power, Mobility and the Law of the Sea, Foreign Affairs 58 (1979/80), 902, 907. 65 Bernhard H. Oxman, The Third United Nations Conference on the Law of the Sea: The 1976 New York Sessions, AJIL 71 (1977), 247, 263. 66 Natalie Klein, Dispute Settlement in the UN Convention on the Law of the Sea (2005), 132; see also Barbara Kwiatkowska, The 200 Mile Exclusive Economic Zone in the New Law of the Sea (1989), 230, stating that the reconciliation achieved during UNCLOS III ‘resulted in ambiguity in the legal status of the EEZ.’ 67 Vienna Convention on the Law of Treaties of 23 May 1969, 1155 UNTS 331. 68 Alexander Proelss, The Law on the Exclusive Economic Zone in Perspective: Legal Status and Resolution of User Conflicts Revisited, Ocean Yearbook 26 (2012), 87, 88 et seq.; Alexander Proelss, Ausschließliche Wirtschaftszone (AWZ), in: Wolfgang Graf Vitzthum (ed.), Handbuch des Seerechts (2006), 222, 228 et seq. 69 A virtually exhaustive list of arguments has been collected by Kwiatkowska (note 66), 231 et seq. 61

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Art. 55

into account the complexity of the issue. In particular, it ignores that the sovereign rights and jurisdiction of the coastal State are not associated with the zone in a territorial sense, but mainly derive from its economic potential (cf. Art. 56 (1)(a): ‘for the purpose of’). Viewed from this perspective, the EEZ can be understood as high seas (solely) in terms of territory, whereas in terms of function, i. e., usage and protection rights, it is a sui generis zone subject to the ‘specific legal regime’ codified in Part V of the Convention. This differentiation best accommodates the risk that the economic dimension of the EEZ, taking into account the quality and quantity of the pertinent rights allocated to the coastal State, may otherwise ultimately turn into a ‘territorialisation’ of the EEZ.70 Viewed from this perspective, OXMAN’s position that the EEZ regime ought to be considered as ‘an overlay on the high seas’ perhaps constitutes the most adequate reflection of legal realities. Several arguments have been brought forward against the position advocated here, but 17 arguably none of them are fully convincing in the end.71 The most obvious objection results from Art. 86. This provision distinguishes between the EEZ and the high seas. A closer examination of Art. 86 reveals, however, that it does not contain a definition of the spatial expansion of the high seas, but solely prescribes, as indicated by its title, the scope of application of Part VII.72 The provision does therefore not exclude the possibility that the EEZ is, as far as its territorial status is concerned, part of the high seas. Furthermore, in light of the fact that the wording of Art. 78 (1) does not refer to ‘the legal status of the superjacent waters or of the air space above those waters’ as being ‘high seas’, the argument has been made that that omission carries the implication ‘that the waters above that part of the continental shelf which coincides with the EEZ (that is, out to 200 miles) are not High Seas but have the sui generis status of the EEZ’.73 In this respect, it should be taken into account, however, that the coastal State does not have an EEZ ipso facto and ab initio.74 The legal status of the superjacent waters thus depends on whether the coastal State has claimed an EEZ or not, which is why the provision is drafted in perfectly appropriate terms. Finally, it has been stated that if the EEZ were to be regarded as part of the high seas, Art. 59 would have had to refer to the freedom of high seas as a means to solve conflicts of interests in situations where the regime of the EEZ does not accord rights or jurisdiction over the matter concerned to any State. 75 Again, this does not seem to be a mandatory interpretation, as acceptance of the sui generis status of the EEZ in terms of function required that the freedoms of the high seas were not made applicable to the EEZ in an undifferentiated manner.76 Art. 59 covers economic uses not included in Art. 56 (1) as well as other uses of the EEZ and can therefore be regarded as perfectly in line with the conception of dual legal status of the EEZ advocated here. It should be noted that determining the legal status of the EEZ is not simply an academic 18 exercise. Quite to the contrary, the status question ‘impacts on the interpretation and application of States’ powers in this large body of water.’77 In this respect, the legal status of the EEZ is particularly relevant for determining whether the legal position of the coastal State or that of other States enjoys priority in case of conflict. 78 Arguably, it also has a bearing in 70 See also Rene ´-Jean Dupuy, The Sea under National Competence, in: Rene´-Jean Dupuy/Daniel Vignes (eds.), A Handbook on the New Law of the Sea, vol. 1 (1991), 247, 296. 71 See Proelss 2012 (note 68), 89 et seq. 72 Dupuy (note 70), 290; see also Guilfoyle on Art. 86 MN 1, 5. 73 Edward D. Brown, The Exclusive Economic Zone: Criteria and Machinery for the Resolution of International Conflicts between Different Users of the EEZ, Maritime Policy and Management 4 (1977), 325, 339. 74 See supra, MN 3. 75 Brown (note 73), 330. 76 See Proelss on Art. 58 MN 11–15. 77 Klein (note 66), 132. 78 The consequences of this submission are dealt with in the context of Art. 56, see Proelss on Art. 56 MN 26– 31. But see PCA, Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award of 18 March 2015, para. 303, available at: www.pca-cpa.org/MU-UK%2020150318%20Awardd4b1.pdf?fil_id=2899, holding that Art. 55 ‘is principally concerned with the definition of the exclusive economic zone and, in the Tribunal’s view, adds nothing to the scope of the rights […] under Article 56’.

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situations where Part V expressly assigns specific rights or freedoms neither to the coastal State nor to other States.79 In light of the territorial status of the EEZ as high seas advocated here, the formula codified in Art. 59 would, ‘where conflicts arise on issues not involving the exploration for and exploitation of resources, […] tend to favor the interests of other states or of the international community as a whole.’80

3. ‘rights and jurisdiction of the coastal State’ 19

The notion of ‘rights and jurisdiction of the coastal State’ is first and foremost substantiated by Art. 56.81

4. ‘rights and freedoms of other States’ 20

The basis, scope and consequences of the rights and freedoms of other States in the EEZ are the object of regulation of Art. 58.82

5. ‘governed by the relevant provisions of this Convention’ 21

The last element contained in Art. 55 makes it clear that the rights of coastal and other States are neither exclusively nor comprehensively prescribed by Part V of the Convention, but that other parts may also be relevant. This is particularly true in light of the fact that the term ‘jurisdiction’ as used in Art. 56 (1)(b) ought to be considered as a proxy for the further substantiation of the respective matter by other provisions of the Convention. 83 In this respect, additional rules expressly affecting the rights of States in the EEZ are contained in Arts. 7 (6), 35–38, 45, 48, 53 (3), 86, 111 (4), 121 (2) and (3), 122, 210 (5), 211 (5), 216 (1)(a), 218, 220, 246, 247, 248, 257, 297 (3) and 298.

Article 56 Rights, jurisdiction and duties of the coastal State in the exclusive economic zone 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; (b) jurisdiction as provided for in the relevant provisions of this Convention with regard to: (i) the establishment and use of artificial islands, installations and structures; (ii) marine scientific research; (iii) the protection and preservation of the marine environment; (c) other rights and duties provided for in this Convention.

79

Klein (note 66), 132. Nordquist/Nandan/Rosenne (note 10), 569; consenting Rothwell/Stephens (note 63), 91. 81 See therefore Proelss on Art. 56 MN 8–22. 82 See Proelss on Art. 58 MN 11–19. 83 See Proelss on Art. 56 MN 20 et seq. 80

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2. In exercising its rights and performing its duties under this Convention in the exclusive economic zone, the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention. 3. The rights set out in this article with respect to the seabed and subsoil shall be exercised in accordance with Part VI. Bibliography: David Anderson, Coastal State Jurisdiction and High Seas Freedoms in the EEZ, in: Clive R. Symmons (ed.), Selected Contemporary Issues in the Law of the Sea (2011), 105–119; Gemma Andreone, The Exclusive Economic Zone, in: Donald R. Rothwell/Alex G. Oude Elferink/Karen N. Scott/Tim Stephens (eds.), The Oxford Handbook of the Law of the Sea (2015), 159–180; David J. Attard, The Exclusive Economic Zone in International Law (1987); Robert Beckman/Tara Davenport, The EEZ Regime: Reflections after 30 Years, in: Harry N. Scheiber/ Moon Sang Kwong (eds.), Securing the Ocean for the Next Generation (2012), 1–41; Edward D. Brown, The Exclusive Economic Zone: Criteria and Machinery for the Resolution of International Conflicts between Different Users of the EEZ, Maritime Policy and Management 4 (1977), 325–350; Robin R. Churchill/Alan V. Lowe, Law of the Sea (3rd edn. 1999); James Crawford, Brownlie’s Principles of Public International Law (8th edn. 2012); Thomas Dux, Specially Protected Marine Areas in the Exclusive Economic Zone (2011); Erik Franckx/Philippe Gautier (eds.), The Exclusive Economic Zone and the United Nations Convention on the Law of the Sea, 1992–2000: A Preliminary Assessment of State Practice (2003); Maria Gavouneli, Functional Jurisdiction in the Law of the Sea (2007); Montserrat Gorina-Ysern/Joseph H. Jones, International Law of the Sea, Access and Benefit Sharing Agreements, and the Use of Biotechnology in the Development, Patenting and Commercialization of Marine Natural Products as Therapeutic Agents, Ocean Yearbook 20 (2006), 221–281; Lothar Gu¨ndling, Die 200 Seemeilen-Wirtschaftszone (1983); Sophia Kopela, The ‘Territorialisation’ of the Exclusive Economic Zone: Implications for Maritime Jurisdiction, available at: https://www.dur.ac.uk/resources/ibru/conferences/sos/s_kopela_paper.pdf; James Kraska, Maritime Power and the Law of the Sea: Expeditionary Operations and World Politics (2011); Barbara Kwiatkowska, The 200 Mile Exclusive Economic Zone in the New Law of the Sea (1989); David K. Leary, International Law and the Genetic Resources of the Deep Sea (2007); Frank Maes, The International Legal Framework for Marine Spatial Planning, Marine Policy 32 (2008), 797–810; L. Dolliver M. Nelson, Exclusive Economic Zone, MPEPIL, available at: http:// www.mpepil.com; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the ~a, The Exclusive Economic Zone (1989); Law of the Sea 1982: A Commentary, vol. II (1993); Francisco Orrego Vicun Frida Maria Armas Pfirter, The Management of Seabed Living Resources in “the Area” under UNCLOS, Revista Electro´nica de Estudios Internacionales 11 (2006), available at: https://dialnet.unirioja.es/servlet/articulo?codigo=1446321; Alexander Proelss, Ausschließliche Wirtschaftszone, in: Wolfgang Graf Vitzthum (ed.), Handbuch des Seerechts (2006), 222–264; Alexander Proelss, Marine Genetic Resources under UNCLOS and the CBD, GYIL 51 (2008), 417–446; Alexander Proelss, The Law on the Exclusive Economic Zone in Perspective: Legal Status and Resolution of User Conflicts Revisited, Ocean Yearbook 26 (2012), 87–112; Alexander Proelss, Pipelines and Protected Sea Areas, in: Richard Caddell/Rhidian Thomas (eds.), Shipping, Law and the Marine Environment in the 21st Century (2013), 276–292; Alexander Proelss/Kerstin Gu¨ssow, Carbon Capture and Storage from the Perspective of International Law, European Yearbook of International Economic Law 2 (2011), 151–168; Ray Purdy, Geological Carbon Dioxide Storage and the Law, in: Simon Shackley/Claire Gough (eds.), Carbon Capture and its Storage (2006), 87–138; Donald R. Rothwell/Tim Stephens, The International Law of the Sea (2nd edn. 2016); Mathias Schubert, Maritimes Infrastrukturrecht (2015); Karen N. Scott, Tilting at Offshore Windmills: Regulating Wind Farm Development in the Exclusive Economic Zone, Journal of Environmental Law 18 (2006), 89–118; Ivan A. Shearer, Ocean Management Challenges for the Law of the Sea in the First Decade of the 21st Century, in: Alex G. Oude Elferink/Donald R. Rothwell (eds.), Ocean Management in the 21st Century: Institutional Frameworks and Responses (2004), 1–18; Yoshifumi Tanaka, The International Law of the Sea (2nd edn. 2015); John M. Van Dyke, The Disappearing Right to Navigational Freedom in the EEZ, Marine Policy 29 (2005), 107–121; Gaetan Verhoosel, Prospecting for Marine and Coastal Biodiversity: International Law in Deep Water, IJMCL 13 (1998), 91–104; Robin Warner, Protecting the Diversity of the Depths: Environmental Regulation of Bioprospecting and Marine Scientific Research Beyond National Jurisdiction, Ocean Yearbook 22 (2008), 411–443 Documents: CoE, Sea Pollution, Report, Committee on the Environment, Agriculture and Local and Regional Affairs, Council of Europe Doc. 10485 (2005); Charles Ehler/Fanny Douvere (eds.), Marine Spatial Planning: A Step-by-step Approach Toward Ecosystem-based Management, IOC Manual and Guides No. 53 (2009); European Commission, Legal Aspects of Maritime Spatial Planning (2009); GA, Oceans and the Law of the Sea: Report of the Secretary-General, UN Doc. A/58/65 (2003); UN DOALOS, Baselines: An Examination of the Relevant Provisions of the United Nations Convention on the Law of the Sea, Appendix I: Consolidated Glossary of Technical Terms Used in the United Nations Convention on the Law of the Sea (1989) Cases: Arbitral Tribunal, Case Concerning Filleting within the Gulf of St. Lawrence (Canada v. France), Award of 17 July 1986, RIAA XIX, 225; CJEU, Case C-308/06, Intertanko [2008] ECR I-4057; ICJ, Continental Shelf (Libyan Arab Jamahiriya v. Malta), Judgment of 3 June 1985, ICJ Reports (1985), 13; ICJ, Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), Judgment of 24 February 1982, ICJ Reports (1982), 18; ICJ, Fisheries Jurisdiction (United Kingdom v. Iceland), Judgment of 25 July 1974, ICJ Reports (1974), 3; ITLOS, The ‘Arctic Sunrise’ (Netherlands v. Russia), Order of 22 November 2013, available at: http://www.itlos.org/fileadmin/itlos/documents/cases/case_no.22/

Proelss

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Art. 56

1–2

Part V. Exclusive economic zone

Order/C22_Ord_22_11_2013_orig_Eng.pdf; ITLOS, The M/V ‘Saiga’ (St. Vincent and the Grenadines v. Guinea), Merits, Judgment of 1 July 1999, ITLOS Reports (1999), 10; ITLOS, The M/V ‘Virginia G’ Case (Panama v. GuineaBissau), Judgment of 14 April 2014, available at: http://www.itlos.org/index.php?id=171; PCA, Arbitration between Barbados and the Republic of Trinidad and Tobago, Relating to the Delimitation of the Exclusive Economic Zone and the Continental Shelf between them (Barbados v. Trinidad and Tobago), Decision of 11 April 2006, RIAA XXVII, 147; PCA, Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award of 18 March 2015, available at: www.pca-cpa.org/MU-UK%2020150318%20Awardd4b1.pdf?fil_id=2899; PCA, South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, available at: http://www.pcacases.com/pcadocs/PH-CN%20%2020160712%20-%20Award.pdf Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘sovereign rights’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘for the purpose of’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘exploring and exploiting, conserving and managing the natural resources, whether living or non-living’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. ‘waters superjacent to the seabed and of the seabed and its subsoil’ . . . . . . . . . . . . 5. ‘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’ 6. ‘jurisdiction as provided for in the relevant provisions of this Convention’ . . . . 7. ‘with regard to: (i) the establishment and use of artificial islands, installations and structures; (ii) marine scientific research; (iii) the protection and preservation of the marine environment’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8. ‘other rights and duties provided for in this Convention’ . . . . . . . . . . . . . . . . . . . . . . . 9. ‘the coastal State shall have due regard to the rights and duties of other States’ 10. ‘shall act in a manner compatible with the provisions of this Convention’ . . . . . 11. ‘rights set out in this article with respect to the seabed and subsoil shall be exercised in accordance with Part VI’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 4 8 8 11 13 16 17 20 21 22 23 32 34

I. Purpose and Function The purpose of Art. 56 is ‘to indicate the general nature of the rights, jurisdiction and duties of the coastal State’ in the EEZ.1 Its practical relevance cannot be overestimated: By prescribing the subject matters with regard to which the coastal State is entitled to exercise exclusive sovereign rights and jurisdiction, and taking into account that no State is authorized to subject any part of the high seas to its sovereignty (� Art. 88), Art. 56 (1) ought to be considered as the main normative reflection of the sui generis status of the exclusive economic zone (EEZ). 2 The sovereign rights of the coastal State are limited to the economic exploration and exploitation of that zone, in particular concerning the conservation and management of fish stocks, and are then further substantiated by Arts. 61–73. The existing emphasis on marine living resources echoes the historical development of the EEZ as a preferential fisheries zone. 3 In contrast, the scope of the coastal State’s jurisdiction with regard to (1) the establishment and use of artificial islands, installations and structures, (2) marine scientific research, and (3) the protection and preservation of the marine environment is not governed by Art. 56 (1) itself, but rather depends on the scope of other provisions codified in the Convention where the respective subject matter is further developed. Finally, Art. 56 (1)(c) clarifies that the rights and duties of the coastal State are not exclusively prescribed in Part V of the Convention. 2 Art. 56 (2) serves to safeguard the position of other States in the EEZ by requiring the coastal State to ‘have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention’. Therefore, it is not dedicated 1

1 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. II (1993), 525. 2 Ibid. 3 See Proelss on Art. 55 MN 5–9.

420

Proelss

Rights, jurisdiction and duties of the coastal State in the exclusive economic zone

3–4

Art. 56

to the rights but to the duties of the coastal State. Art. 56 (3) takes into account the fact that the regime of the EEZ is, as evidenced by the wording of Art. 56 (1)(a), in principle also applicable to the seabed and subsoil of that zone. Notwithstanding their continuing individual relevance, the regimes of the EEZ and of the continental shelf thus overlap; as stated by the International Court of Justice (ICJ), ‘the two institutions – continental shelf and exclusive economic zone – are linked together in modern law.’4 At the same time, both zones have developed independently of each other, and they differ in their maximum outer limits as well as their legal foundations. In particular, in contrast to the continental shelf, the coastal State must claim its EEZ in order to be able to lawfully exercise its sovereign rights and jurisdiction therein. This is why Art. 56 (3) clarifies that the sovereign rights of the coastal State concerning the exploration and exploitation of the natural resources of the seabed and subsoil ought to be exercised in accordance with Part VI on the continental shelf. Whether or not the content of Art. 56 reflects customary international law cannot be 3 answered in general terms, taking into account that Art. 56 (1) (b) and (c) clarify that the scope of the coastal State’s rights and jurisdiction cannot be determined simply on the basis of this provision, but must also be assessed on the basis of other rules and principles codified in the Convention. However, general consensus seems to exists on the broad areas with regard to which the coastal State is authorized to exercise sovereign rights and jurisdiction, and on the general existence of the due regard rule prescribed by Art. 56 (2).

II. Historical Background The origins of Art. 56 are inseparably linked to the development of the regime of the 4 EEZ as such.5 A proposal containing ‘Draft articles on exclusive economic zone concept’ submitted to the Seabed Committee in 1972 by Kenya already referred in its Art. II to the exercise of ‘sovereign rights over natural resources for the purpose of exploration and exploitation.’6 It furthermore stated that within that zone coastal States ‘shall have exclusive jurisdiction for the purpose of control, regulation and exploitation of both living and non-living resources of the Zone and their preservation, and for the purpose of prevention and control of pollution. The coastal State shall exercise jurisdiction over its Economic Zone and third States or their nationals shall bear responsibility for damage resulting from their activities within the Zone.’

Other proposals referred to ‘exclusive jurisdiction […] over the living resources of the sea in an adequately wide zone of the high seas adjacent to its territorial sea’, 7 to ‘preferential rights of coastal States in fishing on the high seas’,8 and to ‘sovereign rights over the renewable and non-renewable natural resources which are found in the waters, in 4 ICJ, Continental Shelf (Libyan Arab Jamahiriya v. Malta), Judgment of 3 June 1985, ICJ Reports (1985), 13, 33 (para. 33). 5 See Proelss on Art. 55 MN 5–13. 6 Sea-Bed Committee, Kenya: Draft Articles on Exclusive Economic Zone Concept, UN Doc. A/AC.138/SC.II/ L.10 (1972), GAOR 27th Sess. Suppl. 21 (A/8721), 180 (Art. II). 7 Sea-Bed Committee, Australia and New Zealand: Principles for a Fisheries Regime, UN Doc. A/AC.138/ SC.II/L.11 (1972), GAOR 27th Sess. Suppl. 21 (A/8721), 183, 184 (para. I); see also Sea-Bed Committee, Iceland: Jurisdiction of Coastal States over Natural Resources of the Area Adjacent to their Territorial Sea, UN Doc. A/ AC.138/SC.II/L.23 (1973), GAOR 28th Sess., Suppl. 21 (A/9021-III), 23; Sea-Bed Committee, China: Sea Area within the Limits of National Jurisdiction, UN Doc. A/AC.138/SC.II/L.34 (1973), GAOR 28th Sess., Suppl. 21 (A/ 9021-III), 71, 73 (para. 2 (3)); Sea-Bed Committee, Algeria et al.: Draft Articles on Exclusive Economic Zone, UN Doc. A/AC.138/SC.II/L.40 (1973), GAOR 28th Sess., Suppl. 21 (A/9021-III), 87 (Art. II); but see ibid., 88 (Art. VI, distinguishing between ‘exercise of sovereignty over the resources’ on one hand and ‘jurisdiction over the zone’ on the other). 8 Sea-Bed Committee, Japan: Proposals for a Re ´gime of Fisheries on the High Seas, UN Doc. A/AC.138/SC.II/ L.12 (1972), GAOR 27th Sess., Suppl. 21 (A/8721), 188.

Proelss

421

Art. 56

5–6

Part V. Exclusive economic zone

the sea-bed and in the subsoil of an area adjacent to the territorial sea called the patrimonial sea’.9 Therefore, notwithstanding the diversity of terms used for the zone itself, ranging from area of the high seas adjacent to the territorial sea, exclusive fishery zone, patrimonial sea, epicontinental sea to exclusive economic zone, States seemed to have agreed on the existence of exclusive powers of the coastal State in respect of the management and conservation of the living marine resources from the outset. 10 5 The debate on the scope and nature of the coastal State’s powers concerning fisheries in what later became the EEZ continued in the course of UNCLOS III. Two sets of draft articles submitted by the US11 and a group of 18 African States12 referred for the first time to rights, or exclusive jurisdiction respectively, of the coastal State in respect of the protection and preservation of the marine environment and the conduct of scientific research. Interestingly, the African proposal repeated an earlier formula discussed in the Sea-Bed Committee by speaking of the coastal State’s ‘sovereignty over the living and non-living resources’. 13 In 1975, the Evensen Group took stock of the proposals that had been submitted until that point of time and proposed a group of articles on the EEZ that was intended to serve as the basis for the future deliberations. The wording of Art. 1 of this text came very close to that of today’s Art. 56.14 In particular, it distinguished between sovereign rights of the coastal State concerning the exploration and exploitation, or conservation and management respectively, of the natural resources on the one hand and jurisdiction in respect of other activities for the economic exploration and exploitation of the EEZ, the preservation of the marine environment, scientific research and the establishment and use of artificial island, installations and similar structures on the other. Furthermore, Art. 1 (2) was drafted in virtually identical terms with the due regard rule codified in Art. 56 (2). Art. 1 (3) prescribed that the ‘rights set out in this article shall be without prejudice to the provisions of articles […] of this Convention’, thereby addressing the future relationship between the regimes of the EEZ and the continental shelf. 6 This document strongly influenced the subsequent discussions, but opinions remained divided on the specific nature of the coastal State’s rights and jurisdiction. A proposal made by the Group of 77 was modelled on the text of the Evensen Group but referred to ‘sovereign rights’ (instead of jurisdiction) with regard to other activities for the economic exploration and exploitation of the EEZ, and to ‘exclusive jurisdiction’ (instead of jurisdiction) as to scientific research and the establishment and use of ‘artificial islands, installations, structures 9 Sea-Bed Committee, Colombia, Mexico and Venezuela: Draft Articles on Treaty, UN Doc. A/AC.138/SC.II/ L.21 (1973), GAOR 28th Sess., Suppl. 21 (A/9021-III), 19, 20 (Art. 4); see also Sea-Bed Committee, Australia and Norway: Certain Basic Principles on an Economic Zone and on Delimitation, UN Doc. A/AC.138/SC.II/L.36 (1973), GAOR 28th Sess., Suppl. 21 (A/9021-III), 77 (para. 1 (a)); Sea-Bed Committee, Argentina: Draft Articles, UN Doc. A/AC.138/SC.II/L.37 (1973), GAOR 28th Sess., Suppl. 21 (A/9021-III), 78, 79 (para. 7); Sea-Bed Committee, Canada et al.: Draft Articles on Fisheries, UN Doc. A/AC.138/SC.II/L.38 (1973), GAOR 28th Sess., Suppl. 21 (A/9021-III), 82 (Art. 1). 10 Only the proposal submitted by Malta foresaw the establishment of international ocean space institutions and prescribed obligations of coastal States concerning the exploitation of living resources in their national ocean spaces rather than allocating sovereign rights and jurisdiction to them. See Sea-Bed Committee, Malta: Preliminary Draft Articles on the Delimitation of Coastal State Jurisdiction in Ocean Space and on the Rights and Obligations of Coastal States in the Area under Their Jurisdiction, UN Doc. A/AC.138/SC.II/L.28 (1973), GAOR 28th Sess., Suppl. 21 (A/9021-III), 35, 61–65 (Arts. 81–91). 11 UNCLOS III, United States of America: Draft Articles for a Chapter on the Economic Zone and the Continental Shelf, UN Doc. A/CONF.62/C.2/L.47 (1974), OR III, 222 (Art. 1). The proposal subjected the exercise of the rights concerned to the provisions of this Convention. 12 UNCLOS III, Gambia et al.: Draft Articles on the Exclusive Economic Zone, UN Doc. A/CONF.62/C.2/L.82 (1974), OR III, 240, 241 (Art. 3). The proposal furthermore referred to ‘[c]ontrol and regulation of customs and fiscal matters related to economic activities in the zone’. 13 Ibid., 240 (art. 2). See also the statement made by the Chairman of the 2nd Committee in his introduction to the RSNT/Part II: ‘[T]he rights as to resources belong to the coastal State […]’; UNCLOS III, Revised Single Negotiating Text, Part II, UN Doc. A/CONF.62/WP.8/REV.1/PART II (1976), OR V, 151, 153 (para. 18)). 14 UNCLOS III, The Economic Zone (1975, mimeo.), reproduced in: Renate Platzo ¨ der (ed.), Third United Nations Conference on the Law of the Sea: Documents, vol. IV (1983), 209, 210 (Art. 1).

422

Proelss

Rights, jurisdiction and duties of the coastal State in the exclusive economic zone

7

Art. 56

and other devices’.15 The structure of Art. 45 included in the Part II of the Informal Single Negotiating Text (ISNT) was similar to that of Art. 1 proposed by the Evensen Group, but spoke of ‘exclusive rights and jurisdiction’ (instead of jurisdiction) in respect of the establishment and use of artificial islands, installations and structures, and of ‘exclusive jurisdiction’ (instead of jurisdiction) concerning other economic uses as well as scientific research. 16 It remains unclear why it was felt necessary to make a distinction, as far as the scope of jurisdiction is concerned, between scientific research and the preservation of the marine environment. Furthermore, Art. 45 (2) referred to the due regard rule, but not to the necessity that the coastal State acts ‘in a manner compatible with the provisions of this Convention.’ Despite numerous informal proposals addressing the specific scope of the coastal State’s jurisdiction with varying connotation,17 Art. 44 of Part II of the Revised Single Negotiating Text (RSNT) remained virtually identical with Art. 45 ISNT.18 It did not include a suggestion made by the US, according to which the coastal State’s jurisdiction with regard to scientific research and the preservation of the marine environment was to be exercised ‘as provided for in this Convention’.19 Art. 44 (3) RSNT now required that the rights with respect to the sea-bed (termed ‘bed’) and subsoil shall be exercised ‘in accordance with’ chapter 4 on the continental shelf (instead of ‘shall be without prejudice to’). The following set of informal proposals, predominantly again centring on the question of the 7 scope of the coastal State’s jurisdiction, need not be illustrated here in detail. It suffices to refer to a proposal submitted by Poland, under which the first part of the first paragraph of the provisions contained in the ISNT and RSNT (‘[i]n an area beyond and adjacent to its territorial sea’) was going to establish the basis of a new provision on the legal status of the EEZ. 20 A text ~eda Group came extremely close to the wording of today’s proposed in 1977 by the Castan Art. 56.21 It clarified that the jurisdiction in respect of ‘(i) the establishment and use of artificial islands, installations and structures; (ii) marine scientific research; (iii) the preservation of the marine environment, including pollution control and abatement’ was to be ‘provided for in the relevant provisions of the present Convention’ and could thus arguably not be considered as generally being exclusive anymore. It should be noted that this text referred to ‘marine scientific research’ instead of, as was the case in the ISNT and RSNT, ‘scientific research’ – a change in terminology that is convincingly held to reflect a narrower understanding of the pertinent coastal State’s jurisdiction.22 With the exception of the phrase ‘including pollution control and abatement’ (which was dropped in light of the fact that the respective rights and duties were going to be substantiated in Part XII of the Convention), the proposal of the ~eda Group was included verbatim as Art. 56 of the Informal Composite Negotiating Castan 23 Text. Subsequent proposals addressing, inter alia, the need of other States to comply with the laws and regulations of the coastal State in its EEZ insofar as they are not incompatible with this Part,24 and the establishment of a Common Heritage Fund concerning the exploitation of non-living resources of the EEZ25 remained unsuccessful, probably due to the regulation of the matter in the context of other provisions of Parts V and VI (Art. 82). 15 UNCLOS III, Working Paper on the Exclusive Economic Zone (1975, mimeo.), reproduced in: Platzo ¨ der (note 14), 227 et seq. (Art. 2). For a comparative assessment see Nordquist/Nandan/Rosenne (note 1), 533–534. 16 UNCLOS III, Informal Single Negotiating Text, Part II, UN Doc. A/CONF.62/WP.8/Part II (1975), OR IV, 152, 159 (Art. 45). 17 For references see Nordquist/Nandan/Rosenne (note 1), 535–536. 18 RSNT/Part II (note 13), 160 (Art. 44). 19 UNCLOS III, United States, Article 45 (ISNT II) (1976, mimeo), reproduced in: Platzo ¨ der (note 14), 289. 20 UNCLOS III, Poland, Articles 44–46 (RSNT II) (1976, mimeo.), reproduced in: Platzo ¨ der (note 14), 407 (Arts. 44 and 45). See also Proelss on Art. 55 MN 13. ~eda Group (1977, mimeo.), reproduced in: Platzo¨der (note 14), 426 (Art. 44). 21 UNCLOS III, Castan 22 Nordquist/Nandan/Rosenne (note 1), 539. 23 UNCLOS III, Informal Composite Negotiating Text, UN Doc. A/CONF.62/WP.10 (1977), OR VIII, 1, 13 (Art. 56). 24 UNCLOS III, Anonymous: Articles 55–110 (ICNT/Rev.1) (1979, mimeo.), reproduced in: Platzo ¨ der (note 14), 518 (Art. 56). 25 UNCLOS III, Lesotho: Amendments, UN Doc. A/CONF.62/L.115 (1982), OR XVI, 224 (Art. 56).

Proelss

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Art. 56

8–9

Part V. Exclusive economic zone

III. Elements 1. ‘sovereign rights’ Art. 56 (1)(a) allocates to the coastal State ‘sovereign rights’ relating to the economic exploration and exploitation of the resources of the EEZ. The term is not defined anywhere in the Convention but equally used by Art. 77 (1) concerning the exploration of the continental shelf and the exploitation of its natural resources. In this context, Art. 77 (2), echoing Art. 2 (2) of the 1958 Geneva Convention on the Continental Shelf, 26 clarifies that the ‘rights referred to in paragraph 1 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.’ Taking into account that Art. 56 does not specify whether the sovereign rights of the coastal State are exclusive or not, the question arises whether the legal situation ought to be assessed differently, depending on whether Part VI is applicable or not due to the reference contained in Art. 56 (3). Arguably, the correct answer is that the sovereign rights of the coastal State in terms of Art. 56 are generally exclusive, and that the sole reason for the omission of a provision that corresponds to Art. 77 (2) is that third States may, depending on the circumstances, have the right of access to the natural resource of the EEZ according to Arts. 62 (2), 69 and 70. 27 9 The historical background evidences that the concept of ‘sovereign rights’ is not tantamount to ‘sovereignty’, and that the EEZ is thus a zone that does not belong to the coastal State’s territory. That said, it has been stated that the notion of sovereign rights, if reasonably interpreted, must be seen as constituting an extract of the broader concept of sovereignty, and that one may thus consider this concept of having been extended to the EEZ, even though only for the limited purposes specified in Art. 56 (1)(a). 28 In the words of Judge ODA: 8

‘[T]he mode of exercise of jurisdiction is no different from that exercised by the coastal State within its territorial sea and, so far as the development of the natural resources of the sea is concerned, its competence in the Exclusive Economic Zone is equivalent to that it enjoys in the territorial sea.’ 29

From a systematic viewpoint, it should be noted that Art. 137 (1), which addresses the legal status of the Area and its resources, emphasizes the existence of a logical link between sovereignty on the one hand and sovereign rights on the other by stating that ‘[n]o 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.’ 26

Convention on the Continental Shelf of 29 April 1958, 499 UNTS 311. Yoshifumi Tanaka, The International Law of the Sea (2nd edn. 2015), 130 et seq. In its decision on the merits in the South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, para. 243, available at: http://www.pcacases.com/pcadocs/PH-CN%20-%2020160712%20-%20Award.pdf, the Arbitral Tribunal emphasized the exclusive nature of the coastal State’s sovereign rights by observing that ‘the notion of sovereign rights over living and non-living resources is generally incompatible with another State having historic rights to the same resources’. 28 Edward D. Brown, The Exclusive Economic Zone: Criteria and Machinery for the Resolution of International Conflicts between Different Users of the EEZ, Maritime Policy and Management 4 (1977), 325, 333; consenting Alexander Proelss, The Law on the Exclusive Economic Zone in Perspective: Legal Status and Resolution of User Conflicts Revisited, Ocean Yearbook 26 (2012), 87, 93 et seq.; see also Maria Gavouneli, Functional Jurisdiction in the Law of the Sea (2007), 65; Donald R. Rothwell/Tim Stephens, The International Law of the Sea (2nd edn. 2016), 92, arguing that coastal States ‘have very close to plenary rights and jurisdiction in EEZ fisheries’. In the Intertanko Case before the Court of Justice of the European Union, Advocate General Kokott stated that ‘[t]he sovereignty of the coastal State over this zone is functional and under Article 55 of the Convention on the Law of the Sea is limited to the competence conferred on it by that convention’ (CJEU, Case C-308/06, Intertanko [2008] ECR I-4057, Opinion of Advocate General Kokott of 20 November 2007, ECLI:EU:C:2007:689, para. 62). 29 ICJ, Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), Judgment of 24 February 1982, Dissenting Opinion of Judge Oda, ICJ Reports (1982), 18, 157, 230 (para. 124). 27

424

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Rights, jurisdiction and duties of the coastal State in the exclusive economic zone 10–12

Art. 56

Arguably, this conclusion is also backed by the African proposal referred to above (MN 5), which referred to ‘sovereignty’ in specific relation (and limited to) the resources themselves. Leaving aside for a moment the question whether a difference in terms of quality exists 10 between ‘sovereign rights’ on the one hand and ‘jurisdiction’ on the other (see infra, MN 20), it should be noted that the competence allocated to the coastal State by Art. 56 (1)(a) comprises both prescriptive and enforcement jurisdiction. As far as the living resources of the EEZ are concerned, this conclusion is expressly backed by Art. 73 (1), according to which 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.’

2. ‘for the purpose of’ The element ‘for the purpose of’ demonstrates that the sovereign rights of the coastal 11 State are not associated with the zone in a spatial sense, but are mainly related to its economic potential. Taking into account that the special legal status of the EEZ is essentially limited to the functional perspective,30 i. e., to the economic use of the EEZ, this element requires that a direct connection exists between the activity concerned and the fields mentioned in Art. 56 (1)(a) in order for the coastal State being legally entitled to rely on its sovereign rights. In this respect, the question arose whether offshore bunkering of fishing vessels can be considered as an activity assimilated to the sovereign rights of the coastal State concerning the management of marine living resources in the EEZ, or whether it constitutes an international lawful use of the sea ‘associated with the operation of ships’ in terms of Art. 58 (1). In its judgment in the M/V ‘Saiga’ Case, the International Tribunal for the Law of the Sea (ITLOS) did not find it necessary to come to a clear decision, 31 but several judges commented upon the issue.32 At that time, State practice did not seem to be sufficiently uniform to provide a clear answer. In its 2014 judgment in the M/V ‘Virginia G’ Case, however, the ITLOS concluded that ‘the regulation by a coastal State of bunkering of foreign vessels fishing in its exclusive economic zone is among those measures which the coastal State may take in its exclusive economic zone to conserve and manage its living resources under article 56 of the Convention read together with article 62, paragraph 4, of the convention. This view is also confirmed by State practice which has developed after the adoption of the Convention.’33

The Tribunal reasoned that ‘it is apparent from the list in article 62, paragraph 4, of the Convention that for all activities that may be regulated by a coastal State there must be a direct connection to fishing’, and that ‘such connection to fishing exists for the bunkering of foreign vessels fishing in the exclusive economic zone since this enables them to continue their activities without interruption at sea.’34 When assessing the scope of Art. 56 (1)(a) based on this jurisprudence, one must not 12 ignore the danger of creeping coastal State jurisdiction by way of broad reference to the 30 See Proelss on Art. 55 MN 16; Gavouneli (note 28), 68 et seq. With regard to the functionally limited scope of enforcement jurisdiction see ITLOS, The ‘Arctic Sunrise’ (Netherlands v. Russia), Order of 22 November 2013, available at: http://www.itlos.org/fileadmin/itlos/documents/cases/case_no.22/Order/C22_Ord_22_11_2013_orig_Eng.pdf, Joint Separate Opinion of Judges Wolfrum/Kelly, para. 12 et seq. A different position is taken by Tanaka (note 27), 132, who considers the EEZ as a zone within which the coastal State is entitled to exercise ‘limited spatial jurisdiction’. 31 ITLOS, The M/V ‘Saiga’ (St. Vincent and the Grenadines v. Guinea), Merits, Judgment of 1 July 1999, ITLOS Reports (1999), 10, para. 137 et seq. 32 In favour of Art. 58 (1): ibid., Separate Opinion of Judge Vukas, para. 17; but see ibid., Separate Opinion of Judge Zhao, para. 3 et seq. 33 ITLOS, The M/V ‘Virginia G’ (Panama v. Guinea-Bissau), Judgment of 14 April 2014, para. 217, available at: http://www.itlos.org/index.php?id=171. 34 Ibid., para. 215.

Proelss

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Art. 56

13–14

Part V. Exclusive economic zone

sovereign rights codified in this provision.35 In order to safeguard the functionally limited nature of the powers of the coastal State over its EEZ enshrined in the element ‘for the purpose of’, it is indeed necessary to insist on a direct connection between the fields mentioned in Art. 56 (1)(a) on the one hand and the regulated activity on the other. In this respect, the ITLOS deserves credit for having substantiated this requirement by pointing at other relevant provisions of the Convention such as Art. 62 (4), but there may still be room for debate as to what activities are covered by these provisions. In this respect, while an Arbitral Tribunal held in the Case Concerning Filleting within the Gulf of St. Lawrence that the coastal State’s sovereign right to manage the living resources of the EEZ does not extend to the processing of fish caught in the EEZ,36 the ITLOS seems to have taken a broader approach. In the M/V ‘Virginia G’ Case, it informed itself by definitions of ‘fisheries related activities’ contained in international documents such as the 2009 FAO Agreement on Port State Measures,37 a course of action suggesting that it considers all activities mentioned in Art. 1 (d) of that Agreement38 as being covered by Art. 56 (1)(a) in conjunction with Art. 62 (4).39 The case is even more difficult to decide if the Convention does not provide any specification of the field concerned – a situation that may particularly arise in connection with ‘other activities for the economic exploitation and exploration of the zone’ in terms of Art. 56 (1)(a). Whether or not the activity concerned is then covered by the sovereign rights of the coastal State ought to be decided on a case-by-case basis, taking into account the circumstances under which the activity is conducted and depending on the type of legislation applied by the coastal State.40

3. ‘exploring and exploiting, conserving and managing the natural resources, whether living or non-living’ The coastal State’s sovereign rights extend to the exploration and exploitation as well as the conservation and management of both living and non-living natural resources. Arguably, taking into account that the terms ‘conserving and managing’ are frequently used in Arts. 61–67, but not in the context of Part VI, they should be regarded as primarily referring to the living resources of the EEZ, whereas ‘exploring and exploiting’ mainly affects the non-living resources as defined by Art. 77 (4).41 Arts. 61 (2) and 65 evidence, however, that the terminology used in Part V is not coherent in this respect. 14 The sovereign rights of the coastal State under Art. 56 (1)(a) only relate to natural resources, be they living or non-living. As far as the resources of the seabed and its subsoil are concerned, Art. 56 (3) clarifies that the pertinent rights ought to be exercised in accordance with Part VI. Consequently, the definition contained in Art. 77 (4) can be consulted in order to substantiate the scope of the coastal State’s rights. According to this provision, the term ‘natural resources’ comprises ‘the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species’. It is thus not possible to allocate in a clear-cut 13

35 David Anderson, Coastal State Jurisdiction and High Seas Freedoms in the EEZ, in: Clive R. Symmons (ed.), Selected Contemporary Issues in the Law of the Sea (2011), 105, 113; see also Proelss on Art. 58 MN 12–13. The danger identified in the text also exists in respect of enforcement jurisdiction; see ITLOS, The M/V ‘Virginia G’ (Panama v. Guinea-Bissau), Judgment of 14 April 2014, para. 217, available at: http://www.itlos.org/index.php?id=171. 36 Arbitral Tribunal, Case concerning filleting within the Gulf of St. Lawrence (Canada v. France), Award of 17 July 1986, RIAA XIX, 225, 255 et seq. (para. 50). 37 Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing of 22 November 2009. The Agreement has not yet entered into force. Its text is available at: http:// www.fao.org/fileadmin/user_upload/legal/docs/2_037t-e.pdf. 38 Art. 1 (d) reads: ‘“fishing related activities” means any operation in support of, or in preparation for, fishing, including the landing, packaging, processing, transshipping or transporting of fish that have not been previously landed at a port, as well as the provisioning of personnel, fuel, gear and other supplies at sea’. 39 The M/V ‘Virginia G’ (note 33), para. 216. 40 Cf. Anderson (note 35), 113 et seq. 41 Robin R. Churchill/Alan V. Lowe, Law of the Sea (3rd edn. 1999), 166.

426

Proelss

Rights, jurisdiction and duties of the coastal State in the exclusive economic zone 15–16

Art. 56

manner the living resources to the regime of the EEZ and the non-living resources to that of the continental shelf. However, in light of Art. 77 (2) and taking into account that if and to the extent to which the coastal State has claimed and established an EEZ above its continental shelf, the two zones form part of an integral regime (see infra, MN 34), it can be said that the term ‘non-living natural resources’ encompasses all resources of the seabed and subsoil that are not of plant, animal, microbial or other origin containing functional units of heredity. 42 In contrast, the term ‘living natural resources’ not only (even though primarily) relates to fish, but also includes the marine flora and genetic organisms living near and on the seabed, and in the subsoil respectively. As stated, whether the sovereign rights ought to be exercised in accordance with Part V or Part VI then depends on the scope of Art. 77 (4).43 It is thus not the spatial provenance (water column v. seabed or subsoil) of the resources but their normative attribution under the Convention that decides upon which regime is applicable. ‘Permanent symbiosis’ arguments ought to be rejected.44 With the exception of sedentary species (whose management is governed by Part VI), the 15 sovereign rights for the purpose of conservation and management of the living resources of the EEZ are further substantiated by Arts. 61–67. While it has been argued that the provisions contained in the Convention that are applicable to ‘living resources’ must generally be considered as being also applicable to species and organisms other than fish, 45 it is true that most elements codified in Arts. 61–67 (e. g. allowable catch, maximum sustainable yield etc.) are clearly intended to govern EEZ fisheries only. In contrast, the sovereign rights relevant here do not seem to cover the exploration and exploitation, or conservation and management respectively, of non-natural (‘artificial’), i. e., man-made, resources. It is therefore submitted that offshore aquaculture in the EEZ, an activity that has so far not been realized on commercially relevant level, cannot be regarded as satisfying the element of conservation and management of natural living resources, but rather that it ought to be seen as one of several ‘other activities for the economic exploitation and exploration of the zone’.46 Consequently, Arts. 61–67 are arguably not applicable to offshore aquaculture activities.

4. ‘waters superjacent to the seabed and of the seabed and its subsoil’ The term ‘waters superjacent’ is not defined in the Convention but used in a similar way in 16 Arts. 78 and 135. According to a publication of the UN Division for Ocean Affairs and the Law of the Sea (DOALOS), it ought to be understood as covering ‘[t]he waters lying immediately above the sea-bed or deep ocean floor up to the surface’.47 The same document defines the terms ‘seabed’ and ‘subsoil’ as ‘[t]he top of the surface layer of sand, rock, mud or other material lying at the bottom of the sea and immediately above the subsoil’, and ‘[a]ll naturally occurring matter lying beneath the sea-bed or deep ocean floor’ respectively. 48 It should be 42 Argumentum e contrario in relation to the Convention on Biological Diversity of 5 June 1992, 1760 UNTS 79, Art. 2 (‘genetic material’). 43 See Maggio on Art. 77 MN 24–26. 44 But see, e. g., Frida Maria Armas Pfirter, The Management of Seabed Living Resources in “the Area” under UNCLOS, Revista Electro´nica de Estudios Internacionales 11 (2006), 19, available at: https://dialnet.unirioja.es/ servlet/articulo?codigo=1446321. 45 Relating to Arts. 116–119, see Gaetan Verhoosel, Prospecting for Marine and Coastal Biodiversity: International Law in Deep Water, IJMCL 13 (1998), 91, 97; Montserrat Gorina-Ysern/Joseph H. Jones, International Law of the Sea, Access and Benefit Sharing Agreements, and the Use of Biotechnology in the Development, Patenting and Commercialization of Marine Natural Products as Therapeutic Agents, Ocean Yearbook 20 (2006), 221, 258 et seq.; Alexander Proelss, Marine Genetic Resources under UNCLOS and the CBD, GYIL 51 (2008), 417, 431; but see Harrison/Morgera on Art. 61 MN 2. 46 See also Thomas Dux, Specially Protected Marine Areas in the Exclusive Economic Zone (2011), 54. 47 UN DOALOS, Baselines: An Examination of the Relevant Provisions of the United Nations Convention on the Law of the Sea, Appendix I: Consolidated Glossary of Technical Terms Used in the United Nations Convention on the Law of the Sea (1989), 47, 64, available at: http://www.un.org/depts/los/doalos_publications/ publicationstexts/The%20Law%20of%20the%20Sea_Baselines.pdf. 48 Ibid., 61 and 64.

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Art. 56

17–19

Part V. Exclusive economic zone

noted that these terms are related to concepts that have been imported into the Convention from the realm of geosciences – a fact which demonstrates the complicated relationship between legal, scientific and technical conceptions that is typical for the modern international law of the sea in light of the ‘spatial turn’ embodied in its provisions.

5. ‘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’ Art. 56 (1)(a) is drafted broadly so as to make it possible to extend the sovereign rights of the coastal State to other economically relevant uses of the EEZ. Inclusion of the words ‘such as’ demonstrates that the pertinent rights include, but are not limited to, the production of energy from the water, currents and winds. The coastal State is thus given the possibility to take advantage of new technological developments,49 the only requirement for the legality of the exercise of sovereign rights arguably being that the activity concerned ought to be of economic relevance.50 This would include, e. g., the extraction of freshwater from seawater.51 18 Concerning the risks involved in the decision by the negotiating parties to include such a broad extension clause in the text of the Convention, it suffices here to refer to potential creeping jurisdiction of the coastal State, which might ultimately result in a transformation of the EEZ from a zone of functionally limited jurisdiction into a zone of spatial jurisdiction, which might not be too easy to distinguish from territorial sovereignty. As will be demonstrated below (see infra, MN 23–31), doubts exist as to whether the clause contained in Art. 56 (2) is a sufficient safeguard in respect of such a development. 19 So far, the element discussed here has become particularly relevant in the context of renewable energy production. As offshore wind or wave energy production necessarily involves the operation of platforms and installations, Art. 56 (1)(a) cannot be read isolated from Art. 56 (1)(b)(i) in conjunction with Art. 60. The fact that these provisions use different terms in order to describe the coastal State’s powers – while Art. 56 (1)(a) speaks of ‘sovereign rights’, Art. 56 (1)(b)(i) and Art. 60 respectively refer to ‘jurisdiction’ and ‘exclusive rights’, or ‘exclusive jurisdiction’ – suggests that no general difference in terms of quality of the rights involved can be deduced from their wording (see infra, MN 20). Whether or not a coastal State is entitled to exercise sovereign rights related to offshore wind energy production by constructing and operating wind farms in case it has not claimed an EEZ, or on its extended continental shelf respectively, is subject to debate. Art. 80 prescribes that ‘Article 60 applies mutatis mutandis to artificial islands, installations and structures on the continental shelf’, but it should be taken into account that this provision is part of Part VI which is dedicated (and limited) to the purpose of exploring the continental shelf and exploiting its natural resources (arg. e Art. 77 (1)). Thus, as far as the production of energy irrespective of the natural resources of the continental shelf is concerned, the better argument seems to be that Art. 80 (which is, as stated, only applicable mutatis mutandis) cannot be relied upon as separate legal basis for the relevant activities.52 17

49

Churchill/Lowe (note 41), 167; Rothwell/Stephens (note 28), 93. But see The M/V ‘Saiga’ (note 31), Separate Opinion of Judge Laing, 10, para. 38: ‘The text clearly limits these activities to natural resources.’ 51 Lothar Gu ¨ ndling, Die 200 Seemeilen-Wirtschaftszone (1983), 213. 52 Alexander Proelss, Ausschließliche Wirtschaftszone, in: Wolfgang Graf Vitzthum (ed.), Handbuch des Seerechts (2006), 222, 249 et seq. (para. 255); the opposite opinion is taken by Karen N. Scott, Tilting at Offshore Windmills: Regulating Wind Farm Development in the Exclusive Economic Zone, Journal of Environmental Law 18 (2006), 89, 96. 50

428

Proelss

Rights, jurisdiction and duties of the coastal State in the exclusive economic zone 20–22

Art. 56

6. ‘jurisdiction as provided for in the relevant provisions of this Convention’ Art. 56 (1)(b) allocates ‘jurisdiction as provided for in the relevant provisions of this 20 Convention’ to the coastal State. There has been some debate on whether a difference in terms of quality exists between the sovereign rights under Art. 56 (1)(a) and jurisdiction under Art. 56 (1)(b). While some authorities take the view that ‘the change of terminology undoubtedly reflects a change in the balance of principles’,53 the negotiating history suggests that the wording ‘jurisdiction as provided for in the relevant provisions of this Convention’ was agreed upon in the course of UNCLOS III in order to serve as a compromise formula with the aim to end the controversies on the content and scope of the coastal state’s powers vis-a`-vis the fields mentioned in Art. 56 (1)(b). Furthermore, the terminology used in Part V is not at all consistent, ranging from ‘sovereign rights’ (Art. 56 (1)(a)) to ‘jurisdiction’ (Art. 56 (1)(b), ‘exclusive rights’ (Art. 60 (1)), and ‘exclusive jurisdiction’ (Art. 60 (2)). Art. 60 (1)(b) demonstrates that installations and structures are regularly constructed and authorized for the purposes mentioned in Art. 56 (1)(a), with regard to which the Convention assigns to the coastal State ‘sovereign rights’ and not merely jurisdiction. Finally, the due regard rule codified in Art. 56 (2) does not distinguish between sovereign rights and jurisdiction at all, but merges these two categories by speaking of ‘exercising its rights’. In light of the aforementioned, it is submitted that no prima facie difference in terms of scope exists between the categories of sovereign rights and jurisdiction, but that the reason for distinguishing between them can be derived from the phrase ‘as provided for in the relevant provisions of this Convention’. This part of Art. 56 (1)(b) evidences that the term ‘jurisdiction’ ought to be considered as a proxy for the further development and substantiation of the respective subject matter by other provisions of the Convention.54 Their scope automatically defines the scope of the coastal State’s jurisdiction in terms of Art. 56 (1)(b). Viewed from this perspective, jurisdiction could theoretically reach as far as (or even further than) the sovereign rights of the coastal State under Art. 56 (1)(a).

7. ‘with regard to: (i) the establishment and use of artificial islands, installations and structures; (ii) marine scientific research; (iii) the protection and preservation of the marine environment’ The jurisdiction of the coastal State under Art. 56 (1)(b) covers (1) the establishment and 21 use of artificial islands, installations and structures, (2) marine scientific research and (3) the protection and preservation of the marine environment. As stated above (see supra, MN 20), the scope of the coastal State’s jurisdiction depends on the development of the respective subject matter by other provisions of the Convention. In this respect, the jurisdiction with regard to the establishment and use of artificial islands, installations and structures is first and foremost substantiated by Art. 60, while that concerning marine scientific research is substantiated by the provisions of Part XIII, in particular Arts. 246–249, 253 and 259–262. As far as the protection and preservation of the marine environment are concerned, the coastal State’s jurisdiction is addressed in detail in Part XII, in particular Arts. 210 (5), 211 (5) and (6), 216, 218, 220 and 234.55

8. ‘other rights and duties provided for in this Convention’ Art. 56 (1) does not prescribe the areas with regard to which the coastal State is entitled to 22 exercise sovereign rights and jurisdiction in an exclusive manner. Rather, Art. 56 (1)(c) contains 53

Brown (note 28), 334; see also Churchill/Lowe (note 41), 167; Gavouneli (note 28), 65. L. Dolliver M. Nelson, Exclusive Economic Zone, MPEPIL, para. 12, available at http://www.mpepil.com; Proelss (note 28), 101 et seq.; Gu¨ndling (note 51), 216. 55 For a discussion of expansionist trends concerning the exercise of jurisdiction in the EEZ see infra, MN 32. 54

Proelss

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Art. 56

23

Part V. Exclusive economic zone

a catchall element by clarifying that in addition to the powers allocated to the coastal State by Art. 56 (1)(a) and (b), the coastal State has ‘other rights and duties provided for in this Convention’. Taking into account that the contiguous zone (if declared) overlaps with the inner 12 NM of the EEZ, this element is usually held to be relevant in respect of the rights of the coastal State in terms of Art. 33, as well as the right of hot pursuit under Art. 111, 56 which applies ‘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.’

9. ‘the coastal State shall have due regard to the rights and duties of other States’ 23

Art. 56 (2) requires the coastal State, when exercising its rights and performing its duties in the EEZ, to ‘have due regard to the rights and duties of other States’. Clearly, the first conclusion that can be drawn from this element is that the sovereign rights and jurisdiction of the coastal State cannot be held to be absolute.57 The fact that the coastal State is only entitled to exercise exclusive but at the same time functionally limited powers in the EEZ (see supra, MN 8) is reflected by Art. 58 (1), according to which ‘all States […] enjoy […] the freedoms referred to in article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms […]’ in the EEZ. The co-existence of the rights and jurisdiction of the coastal State on the one hand and the continuing freedoms of other States on the other results in a considerable potential for conflict between the two groups of rights. As correctly stated by one authority, ‘[a]part from high seas fisheries and the protection of the marine environment, the major “unfinished business” of the LOS Convention is likely to prove to be the sovereign rights and jurisdiction of coastal states in their EEZs and the rights and duties of other states in those zones.’ 58

For example, one may ask to what extent the coastal State is entitled to demand, by relying on its jurisdiction to preserve the marine environment, that other States shift a pipeline project to another part of the EEZ, or to exclude international shipping from parts of its EEZ because it intends to authorize the construction and operation of a large offshore wind energy farm in the area concerned. The territorial imprint of such activities becomes even more apparent when considering that the coastal State is entitled to establish reasonable safety zones around artificial islands, installations and structures in which it may take appropriate measures to ensure the safety of both navigation and of the structures concerned, and that these zones may, depending on the circumstances of the individual case, extend to a distance of up to 500 m around them (cf. Art. 60 (4) and (5)). Only in some instances does the Convention contain special rules dedicated to the avoidance of such conflicts. 59 If and to the extent to which no such special rule exists, conflicts between the rights and jurisdiction of the coastal State and the freedoms of other States ought to be avoided and resolved on the 56

Churchill/Lowe (note 41), 169; Rothwell/Stephens (note 28), 94. Gemma Andreone, The Exclusive Economic Zone, in: Donald R. Rothwell et al. (eds.), The Oxford Handbook of the Law of the Sea (2015), 159, 165. 58 Ivan A. Shearer, Ocean Management Challenges for the Law of the Sea in the First Decade of the 21st Century, in: Alex G. Oude Elferink/Donald R. Rothwell (eds.), Ocean Management in the 21st Century: Institutional Frameworks and Responses (2004), 1, 10. 59 Examples include Arts. 60 (6) and 79 (3). For a discussion of conflicts between the coastal State’s jurisdiction concerning the protection and preservation of the marine environment on the one hand and the freedom of other States to lay submarine pipelines on the other see: Alexander Proelss, Pipelines and Protected Sea Areas, in: Richard Caddell/Rhidian Thomas (eds.), Shipping, Law and the Marine Environment in the 21st Century (2013), 276, 287 et seq. 57

430

Proelss

Rights, jurisdiction and duties of the coastal State in the exclusive economic zone 24–25

Art. 56

basis of the lex generalis Art. 56 (2).60 Its main objective is thus to create a general but at the same time ‘permanent legal arrangement for balancing the diverse interests in the EEZ’. 61 When evaluating the conflict avoidance potential of Art. 56 (2), it is crucial to take into 24 account that Art. 58 (3) contains a similar provision addressed to States other than the coastal State, requiring them to take ‘due regard to the rights and duties of the coastal State’ when exercising their rights and performing their duties in the EEZ. The two provisions thus prescribe mutual due regard obligations, an approach that is closely related to the findings of the ICJ in the Fisheries Jurisdiction case. In its judgment, the Court held: ‘Due recognition must be given to the rights of both Parties, namely the rights of the United Kingdom to fish in the waters in dispute, and the preferential rights of Iceland. Neither right is an absolute one: the preferential rights of a coastal State are limited according to the extent of its special dependence on the fisheries and by its obligation to take account of the rights of other States and the needs of conservation; the established rights of other fishing States are in turn limited by reason of the coastal State’s special dependence on the fisheries and its own obligation to take account of the rights of other States, including the coastal State, and of the needs of conservation.’ 62

The ICJ furthermore stated that the ‘most appropriate method for the solution of the dispute is clearly that of negotiation’, whose ‘objective should be the delimitation of the rights and interests of the Parties, the preferential rights of the coastal State on the one hand and the rights of the Applicant on the other, to balance and regulate equitably questions […].’ 63 While the mutual obligation to have due regard must thus be considered as being of procedural nature,64 it has correctly been pointed to the fact that international case-law prior to 2015 did not offer much guidance on how to implement this duty. 65 In March 2015, however, the Arbitral Tribunal in the Chagos Marine Protected Area 25 Arbitration had the opportunity to substantiate the due regard rule codified in Art. 56 (2). Mauritius argued that the United Kingdom had violated its obligation arising from Art. 56 (2), as it had created certain expectations vis-a`-vis Mauritius that were subsequently not met. The Tribunal stated that the extent of regard required by the Convention would ‘depend upon the nature of the rights held by Mauritius, their importance, the extent of the anticipated impairment, the nature and importance of the activities contemplated by the United Kingdom, and the availability of alternative approaches.’66

It embraced the position taken by the ICJ in the Fisheries Jurisdiction case by holding that ‘[i]n the majority of cases, this assessment will necessarily involve at least some consultation with the rights-holding State.’67 These consultations would have to be undertaken in good faith,68 i. e., (1) in a timely manner, (2) in a spirit of understanding of the other State’s concerns in connection of the proposed activities, and, if possible, (3) by submitting suggestions of compromise.69 The Tribunal furthermore decided that Art. 56 (2) 60

See also Churchill/Lowe (note 41), 175. Andreone (note 57), 165; Nordquist/Nandan/Rosenne (note 1), 543. 62 ICJ, Fisheries Jurisdiction (United Kingdom v. Iceland), Judgment of 25 July 1974, ICJ Reports (1974), 3, 31 (para. 71), italics added. 63 Ibid., 31 (para. 73). 64 James Kraska, Maritime Power and the Law of the Sea: Expeditionary Operations and World Politics (2011), 267. 65 Robert Beckman/Tara Davenport, The EEZ Regime: Reflections after 30 Years, in: Harry N. Scheiber/Moon Sang Kwong (eds.), Securing the Ocean for the Next Generation (2012), 14, available at: https://www.law.berkeley.edu/files/Beckman-Davenport-final.pdf. 66 PCA, Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award of 18 March 2015, para. 519, available at: www.pca-cpa.org/MU-UK%2020150318%20Awardd4b1.pdf?fil_id=2899; consenting South China Sea Arbitration (note 27), para. 742. 67 Ibid. 68 In light of this, it was criticized in a separate opinion to the Tribunal’s award that the issue of due regard was not sufficiently linked to Art. 300 and the abuse of rights doctrine; see Chagos Marine Protected Area Arbitration (note 66), Joint Dissenting and Concurring Opinion of Judges Kateka/Wolfrum, para. 89, available at: https:// www.pcacases.com/web/sendAttach/1570. 69 Chagos Marine Protected Area Arbitration (note 66), paras. 528 et seq. 61

Proelss

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Art. 56

26–27

Part V. Exclusive economic zone

would usually require that a balancing exercise of the colliding rights and interests with the coastal State’s own rights and interests be consciously undertaken. 70 26 Assuming that the coastal State complies with its procedural duties resulting from Art. 56 (2), the question remains whether Part V in general and Arts. 56 (2) and 58 (3) in particular provide States with a general guideline for the lawful implementation of the balancing exercise that was convincingly held to be necessary by the Arbitral Tribunal in the Chagos Marine Protected Area Arbitration. It has been submitted elsewhere by this author that a mere case-by-case analysis does not seem to sufficiently take into account the special legal status of the EEZ as well as the need for legal certainty. 71 It is true that the Convention, if read literally, does not expressly and comprehensively answer the question of whether any of the States concerned enjoys priority in case of conflict. The position taken by the Tribunal in the Chagos Marine Protected Area Arbitration can perfectly be justified by reference to Art. 297 (1)(a) and (b), according to which the exceptions from the regime of compulsory dispute settlement recognized by the Convention are not applicable vis-a`-vis allegations that a coastal State has acted contrary to the freedoms of other states contained in Art 58 (1), or that other States have acted in contravention of the laws and regulations adopted by the coastal State in conformity with Art. 56 (1). This provision thus seems to allocate the central role for the resolution of user conflicts in the EEZ to international courts and tribunals. It should not be forgotten, however, that international courts and tribunals will only have the opportunity to address a matter after it has turned out to be impossible to avoid the conflict of rights and interests, and that their decisions will be limited to the specific circumstances of the cases brought to their attention. Taking this into account, a closer analysis of the history and ratio of the regime of the EEZ arguably militates in favour of accepting a ‘shift of emphasis in favour of the coastal State’.72 27 The reasons of this line of argument cannot be presented here in detail. 73 It suffices to refer to the following considerations: First, it should be recalled that the notion of sovereign rights constitutes an extract of the broader concept of sovereignty (see supra, MN 9). Taking into account the functional sui generis status of the EEZ,74 it seems difficult to adhere to the argument that the coastal State cannot be seen as being privileged in some way in respect of the rights and jurisdiction referred to in Art. 56 (1).75 The opposite view would essentially render marine spatial planning in the EEZ unlawful, a conclusion that would ignore recent developments in State practice.76 Marine spatial planning constitutes a tool whose objective it is to avoid conflicts between different rights and interests of States from the outset. This concept could not be relied upon, would the coastal State not be entitled to activate a priori its sovereign rights and jurisdiction by conducting planning processes in its EEZ. While the 70

Ibid., para. 534. Proelss (note 28), 92 et seq.; see also Gavouneli (note 28), 69; the opposite position is taken by Barbara Kwiatkowska, The 200 Mile Exclusive Economic Zone in the New Law of the Sea (1989), 215, arguing that ‘the principle of equivalence and reasonableness of the uses of the sea implies the necessity of balancing relevant priorities in each case where the competing rights and freedoms of states are exercised in accordance with the Convention’. 72 David J. Attard, The Exclusive Economic Zone in International Law (1987), 75. 73 For an in-depth analysis of the following points, see Proelss (note 28), 93–97; the opposite position has, inter alia, been taken by Mathias Schubert, Maritimes Infrastrukturrecht (2015), 50–52. 74 See Proelss on Art. 55 MN 15–18. 75 A review of relevant State practice undertaken by one authority indicates that the majority of coastal States subjects the exercise of the freedom of communications by other States to the condition of their compatibility with their sovereign rights; see Attard (note 68), 76–84. Other assessments do not arrive at unambiguous conclusions with regard to the resolution of user conflicts in the EEZ. See Erik Franckx/Philippe Gautier (eds.), The Exclusive Economic Zone and the United Nations Convention on the Law of the Sea, 1992–2000: A Preliminary Assessment of State Practice (2003); Ocean Yearbook 25 (2011), 221–480. 76 This legal implication seems to have been ignored by Schubert (note 73), 52, 60–61. Note that the UNESCO has published a best practice guide on marine spatial planning. See Charles Ehler/Fanny Douvere (eds.), Marine Spatial Planning: A Step-by-step Approach Toward Ecosystem-based Management, IOC Manual and Guides No. 53 (2009); see also European Commission, Legal Aspects of Maritime Spatial Planning (2009), 2 et seq., available at: http://ec.europa.eu/maritimeaffairs/documentation/studies/documents/legal_aspects_msp_summary_en.pdf. 71

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Rights, jurisdiction and duties of the coastal State in the exclusive economic zone 28–29

Art. 56

coastal State is certainly not automatically entitled to apply its domestic spatial planning rules developed with regard to its territory (including the internal waters and territorial sea) in a comprehensive manner to the EEZ, general consensus seems to exist that marine spatial planning in the EEZ, provided that it is directly connected to the sovereign rights and jurisdiction in terms of Art. 56 (1), ought to be considered as being in line with the Convention. The fact that ‘UNCLOS remains silent about MSP as a management process’ 77 does thus not imply that the process concerned is not covered by the Convention’s provisions.78 As far as the rights of other States are concerned, Art. 58 (1) does not likewise speak of 28 sovereign rights, but merely of freedoms. These freedoms refer to the regime of the high seas, but it is important to note that Art. 87 has not been made applicable to the EEZ in an unmodified manner. Rather, Art. 58 (1) subjects the exercise of ‘the freedoms referred to in article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms’ to ‘the relevant provisions of this Convention’. For example, Art. 60 (6) a priori limits the freedom of navigation by requiring all ships to respect the safety zones established by the coastal State around its artificial islands, installations and structures. 79 Furthermore, Art. 58 (2) declares Arts. 88–115 only applicable in the EEZ ‘in so far as they are not incompatible with this Part’.80 Compared to the high seas, the exercise of the freedoms mentioned in Art. 58 (1) is, therefore, subjected to stricter limits in the EEZ. 81 Two different approaches can be imagined how the shift of emphasis in favour of the 29 coastal State advocated here could be implemented in practice: Whereas the first one would indeed accept a substantive hierarchy between the sovereign rights of the coastal State and the rights of other States, the second approach would confine itself to becoming manifest in a rebuttable presumption in favour of the coastal State. Under the first alternative, the position of the coastal State would necessarily and automatically have to be considered as principal and that of the other States as subsidiary in case of conflict. However, such a schematic solution would not be compatible with the reciprocal due regard rule contained in Arts. 56 (2) and 58 (3). In contrast, recognition of a rebuttable presumption in favour of the coastal State that is only applicable in the event of a conflict, and unless the behaviour of the coastal State is not equal to an abuse of rights, offers a degree of flexibility that arguably sufficiently takes into account the requirements of the mutual due regard obligation. As ATTARD has argued, ‘[w]ith respect to activities related to the development of the zone’s resources, the assumption is that the coastal State has the competence ‘equivalent to that it enjoys in the territorial sea’, thereby shifting the onus of proof to the opponent. Thus, if another State’s activity clashes with this competence, and no priority is specified by the CLOS, the onus of proof lies with the State. […] Consequently, the coastal State will no longer be obliged to prove, for example, that at least in form and general content, its conservation measures are in accordance with international law; it will be up to the opponent to prove them contrary to the Convention.’82

Invoking a rebuttable presumption established by rules of substantive law before a court thus results in shifting the burden of proof from one party to the dispute to the opposing party. While the resolution of conflicts will ultimately be a task to be coped with by courts and tribunals (provided that negotiations undertaken in good faith have failed), the compe77

Frank Maes, The International Legal Framework for Marine Spatial Planning, Marine Policy 32 (2008), 797,

799.

78

Schubert (note 73), 59–62. See also Art. 60 (1)(c), which arguably limits, to the advantage of the coastal State, the scope of Art. 59; Proelss on Art. 60 MN 14. 80 Italics added. 81 See also Brown (note 28), 337; Gavouneli (note 28), 65 et seq.; for the opposite view Kwiatkowska (note 71), 214. 82 Attard (note 72), 75 (footnotes omitted); see also ibid., 64; James Crawford, Brownlie’s Principles of Public International Law (8th edn. 2012), 278 (note 144). 79

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Art. 56

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tent dispute settlement body is thus supplied with a general guideline for its decision, which furthermore provides for the necessary predictability that is important for the parties of a dispute. 30 Taking into account that the due regard rule codified in Art. 56 (2) does not distinguish between sovereign rights and jurisdiction, it is submitted that the shift of emphasis in favour of the coastal State advocated here should generally be held to apply also in respect of the coastal State’s jurisdiction in terms of Art. 56 (1)(b).83 No reason exists why the jurisdiction of the coastal State in regard to, say, the protection and preservation of the marine environment should be given less weight in the event of a conflict with the rights of other States in terms of Art. 58 (1) than the sovereign rights for the purpose of exploring and exploiting the living natural resources of the EEZ. Distinguishing between the two categories of powers in the present context would essentially ignore that the sui generis status of the EEZ is characterized by the existence of both sovereign rights and jurisdiction of the coastal State. In light of the fact that the term ‘jurisdiction’, codified in Art. 56 (1)(b), ought to be regarded as a proxy for the further development and substantiation of the respective subject matter by other provisions of the Convention (see supra, MN 20), this conclusion must only be rejected if and to the extent to which the Convention contains special rules to the contrary.84 31 It should be noted that the primacy of the coastal State’s legal position embodied in the concept of rebuttable presumption can only become effective if and to the extent to which the sovereign rights of the coastal State are actually affected. 85 Both the duty to have due regard to the rights of other States and the obligation to not exercise the rights, jurisdiction and freedoms recognized under the Convention in a manner that would constitute an abuse of rights require that the coastal State has already ‘activated’ its sovereign rights, e. g. by the granting of a permission for the use of a certain area of the EEZ for one of the purposes mentioned in Art. 56 (1)(a), or by initiating marine spatial planning, prior to the occurrence of the conflict.86 In this respect, it would constitute an abuse of rights if the coastal State repeatedly reacts to the expression of intent of another State to lay a transit pipeline or cable through the EEZ of the coastal State by asserting that it plans to use exactly the respective sea area for the purpose of, say, managing the living resources occurring there.

10. ‘shall act in a manner compatible with the provisions of this Convention’ 32

In addition to the due regard clause, Art. 56 (2) furthermore requires the coastal State to ‘act in a manner compatible with the provisions of this Convention’. Arguably, this element is merely of declaratory nature, taking into account that the provisions developing and substantiating the sovereign rights and jurisdiction of the coastal State in terms of Art. 56 (1) are legally binding by themselves, a fact that renders a coastal State ignoring, say, the provisions codified in Part XII in violation of the Convention. Viewed from this perspective, Art. 56 (2) primarily seems to be intended to remind coastal States of the referential character of Art. 56 (1)(b). In this respect, more recent developments in State practice seem to indicate a growing tendency amongst coastal States to challenge, at the expense of freedom of navigation, the limited nature of their jurisdiction concerning the protection of the marine environment. 87 For example, following the oil tanker accident of the ‘Prestige’ in 2002, France and Spain adopted the Malaga Agreement, through which they ‘agreed to a measure of immediate effect for 83

Proelss (note 28), 102 et seq.; for a different view see Brown (note 28), 334 et seq. For a discussion of examples see Proelss (note 28), 104 et seq. 85 Ibid., 100. 86 In a court proceedings, the coastal State is thus under a duty to conclusively demonstrate that it decided to exercise its sovereign rights prior to the expression of intent to make use of the freedom of communications by the other State. 87 A general assessment concerning expansionist trends in the EEZ, embodied in enhanced references to the sovereign rights and jurisdiction in terms of Art. 56 (1), is provided by Sophia Kopela, The ‘Territorialisation’ of the Exclusive Economic Zone: Implications for Maritime Jurisdiction, 3–14, available at: https://www.dur.ac.uk/ resources/ibru/conferences/sos/s_kopela_paper.pdf. See also Proelss on Art. 58 MN 11–18. 84

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33

Art. 56

inspecting dangerous ships of the same type as the PRESTIGE, ie single-hull oil tankers over fifteen years of age, carrying heavy fuel oil or tar and lacking gauges to measure the level and pressure of hydrocarbons in their holds.’88 Taking into account that the coordinated unilateral measures that were subsequently implemented by France, Spain and Portugal included the banning of ships from the EEZ of these States in several cases,89 it is difficult to justify such course of action on the basis of the Convention.90 In particular, it should be noted that Art. 56 (1)(b)(iii), in conjunction with Art. 220 (3)-(6), does not envisage the complete banning of foreign ships from the EEZ, and State practice is clearly not sufficiently constant and uniform in order to convincingly argue in favour of the evolution of a new rule of customary international law modifying the restrictive approach on which the Convention is based. 91 A different conclusion ought to be drawn, though, if and to the extent to which unilateral measures implemented by one or more coastal State(s) are later on generally endorsed by the International Maritime Organization (and thereby turned into ‘applicable international rules and standards for the prevention, reduction and control of pollution from vessels’ in terms of Art. 220 (3)), e. g., by amending one of the Annexes to MARPOL.92 Expansionist trends concerning coastal State jurisdiction in the EEZ have furthermore been 33 identified, based on the collection of relevant declarations, acts and laws compiled by UN DOALOS,93 in relation to security issues, hydrographic surveys, installations and structures, and custom-related activities.94 As far as the latter category is concerned, the ITLOS held in the M/V ‘Saiga’ Case (No. 2) that the coastal State is not entitled to apply its customs laws in respect of other parts of its EEZ than artificial islands, installations and structures, 95 a conclusion that is backed by the practice of the overwhelming majority of States. 96 In respect of hydrographic surveying, a number of States seems to act on the assumption that this activity generally falls within the scope of marine scientific research under Art. 56 (1)(b)(ii) and thus requires prior consent,97 but it is submitted that Art. 21 (1)(g) demonstrates that the two concepts ought to be distinguished from each other under the Convention. An even larger number of States has proclaimed jurisdiction in terms of Art. 56 (1)(b)(i) related to all types of installations, structures and devices for any purpose, i. e., not only for the purposes set out in Art. 56 (1).98 Again, the functionally limited nature of the sovereign rights and jurisdiction of the coastal State that is embodied, as far as the specific context relevant here is concerned, in Art. 60 (1)(b) (‘installations and structures for the purposes provided for in article 56 and other economic purposes’) clearly militates against accepting this view as being compatible with the law of the sea as it stands today. As far as security measures are concerned, e. g., requiring prior consent for the conduct of military exercises, or implementing maritime identifications systems that aim at enhancing the protection of national security,99 it does not seem to be possible under the Convention to argue that such activities can be regulated by the coastal State on the basis of its sovereign rights and jurisdiction in terms of Art. 56 (1). It should be noted in this respect that the matter is one of existence of competence and not one of proportionality, which 88 CoE, Sea Pollution, Report, Committee on the Environment, Agriculture and Local and Regional Affairs, Council of Europe Doc. 10485 (2005), para. 127. The text of the agreement does not seem to be officially available. 89 Between November 2002 and March 2003, 28 ships were turned back by France; see Council of Europe Doc. 10485 (note 88), para. 129. 90 GA, Oceans and the Law of the Sea: Report of the Secretary-General, UN Doc. A/58/65 (2003), para. 57. For further references see Hamamoto on Art. 220 MN 25. 91 But see John M. Van Dyke, The Disappearing Right to Navigational Freedom in the EEZ, Marine Policy 29 (2005), 107, 121. 92 International Convention for the Prevention of Pollution from Ships of 2 November 1973, 1340 UNTS 184. 93 Available at: http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/regionslist.htm. 94 Kopela (note 87), 4–7. 95 The M/V ‘Saiga’ (note 31), paras. 127, 136. 96 Kopela (note 87), 7, has identified seven States claiming jurisdiction concerning custom-related issues. 97 Ibid., 5. 98 Ibid., 6, listing 24 States. 99 See Rothwell/Stephens (note 28), 100, pointing to the system enacted by Australia.

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Art. 56

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Part V. Exclusive economic zone

is why it is difficult to justify security measures of the coastal State depending on the intensity of interference with the freedom of navigation of other States. Even though the aforementioned trends are not sufficiently uniform and widespread in order to accept their relevance as to the interpretation, or further development respectively, of the jurisdiction of the coastal State in accordance with a new rule of customary international law, the examples show that there is still considerable uncertainty concerning the exact scope of jurisdiction in terms of Art. 56 (1)(b) – uncertainty that could ultimately threaten the functionally limited nature of the coastal State’s powers in the EEZ.100

11. ‘rights set out in this article with respect to the seabed and subsoil shall be exercised in accordance with Part VI’ Art. 56 (3) refers to the sovereign rights allocated to the coastal State by Art. 56 (1). It has been demonstrated elsewhere that the regimes of the EEZ and continental shelf have developed independently of each other, and that the two zones do not share the same legal status.101 That said, the wording of Art. 56 (1), by referring also to the ‘seabed and its subsoil’, clarifies that if and to the extent to which the coastal State has claimed and established an EEZ above its continental shelf, the two zones form part of an integral regime. The ICJ thus correctly stated in the Libya/Malta case that ‘the two institutions – continental shelf and exclusive economic zone – are linked together in modern law.’102 The logical contradiction inherent in this statement is resolved by Art. 56 (3), according to which the sovereign rights set out in Art. 56 (1) are, as far as the seabed and subsoil is concerned, to be exercised in accordance with Part VI on the continental shelf. It has been submitted by one of the parties to the dispute in the Barbados/Trinidad and Tobago Arbitration that the fact that Art. 56 (3) uses the phrase ‘in accordance with’, rather that the phrase ‘subject to’, indirectly emphasizes the integral nature of the overarching regime applicable to the 200-NM-zone. 103 While the EEZ and the continental shelf are, therefore, conceptually linked, 104 the sovereign rights of the coastal State concerning the exploration and exploitation of the living resources of the seabed and subsoil are to be exercised in accordance with Art. 77. 35 An isolated reading of Art. 56 (3) suggests that the reference to Part VI contained therein extends to all rights mentioned in Art. 56 (1)(a), as long as these are related to the seabed and subsoil. Prima facie, this seems to include the conservation and management of all marine benthic organisms. It should be noted, however, that Art. 77 (4) defines the term ‘natural resources’ as used in Part VI as encompassing 34

‘mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species, that is to say, 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.’

As this definition is, again, included in Part VI of the Convention referred to by Art. 56 (3), the conservation and management of benthic organisms that do not qualify as ‘sedentary species’ in terms of Art. 77 (4) is governed by Art. 56 (1). 36 Whether or not this conclusion ought to be applied to genetic resources living on the seabed arguably depends on whether the organisms concerned are immobile or unable to move except 100

See also Andreone (note 57), 179 et seq.; Gavouneli (note 28), 82–90. Proelss on Art. 55 MN 3. 102 Libya/Malta (note 4), 33 (para. 33). 103 PCA, Arbitration between Barbados and the Republic of Trinidad and Tobago, Relating to the Delimitation of the Exclusive Economic Zone and the Continental Shelf between them (Barbados v. Trinidad and Tobago), Decision of 11 April 2006, RIAA XXVII, 147, 201 (para. 182); see also Tunisia/Libya (note 29), Dissenting Opinion of Judge Evensen 18, 278, 287 (para. 9): ‘This 200-mile economic zone concept refers not only to the resources of the seas (living or non-living), but also to the natural resources on or in the sea-bed. To this extent it is also in practice a continental shelf concept.’ ~a, The Exclusive Economic Zone (1989), 68 et seq. 104 See also Attard (note 72), 139 et seq.; Francisco Orrego Vicun 101

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in constant physical contact with the seabed. It has been stated that some of the species covered by the term ‘genetic resources’ are indeed to be ‘managed’ in accordance with Part V, whereas others are not.105 It is less clear how to legally assess activities relating to the storage of CO 2 on the continental shelf. Are these governed by Art. 56 (1) or by Art. 56 (3) in conjunction with Art. 77 (1)? A literal reading of Art. 77 (1) seems to imply that the sovereign rights of the coastal State under Part VI do not extend to every economic use of the continental shelf, but only to uses directly related to the resources in terms of Art. 77 (4). However, taking into account that the coastal State has the exclusive right under Art. 81 to authorize and regulate drilling on the continental shelf ‘for all purposes’, and keeping in mind that Art. 85 emphasizes the coastal State’s right to exploit the subsoil of the continental shelf by means of tunneling, the better view (supported by, e. g., Norwegian State practice) 106 is that the provisions of Part VI are applicable to all CO2 storage activities on the continental shelf.107

Article 57 Breadth of the exclusive economic zone The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. Bibliography: David D. Caron, Climate Change, Sea Level Rise and the Coming Uncertainty in Oceanic Boundaries: A Proposal to Avoid Conflict’, in: Seoung-Yong Hong/John M. Van Dyke (eds), Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea (2009), 1–18; Robin R. Churchill/Alan V. Lowe, Law of the Sea (3rd edn. 1999); Moritaka Hayashi, Sea Level Rise and the Law of the Sea – Future Options, in: Davor Vidas/ Peter J. Schei (eds.), The World Ocean in Globalisation: Challenges and Responses (2011), 187–208; Ann L. Hollick, The Origins of the 200-mile Offshore Zones, AJIL 71 (1977), 494–500; Jose´ L. Jesus, Rocks, New-born Islands, Sea Level Rise and Maritime Space, in: Jochen A. Frowein et al. (eds.), Negotiating For Peace – Liber Amicorum Tono Eitel (2003), 579–603; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Rosemary Rayfuse, Sea Level Rise and Maritime Zones: Preserving the Entitlements of “Disappearing” States, in: Michael B. Gerrard/Gregory E. Wannier (eds.), Threatened Island Nations: Legal Implications of Rising Seas and a Changing Climate (2013), 167–191; Donald R. Rothwell/Tim Stephens, The International Law of the Sea (2nd edn. 2016); Clive Schofield, Defining the ‘Boundary’ between Land and Sea: Territorial Sea Baselines in the South China Sea, in: S. Jayakumar/Tommy Koh/Robert Beckman (eds.), The South China Sea Disputes and the Law of the Sea (2014), 21–54; Alfred H. A. Soons, The Effects of a Rising Sea Level on Maritime Limits and Boundaries, NILR 37 (1990), 207–232 Documents: International Law Association, Report of the Seventy-Fifth Conference held in Sofia, Baselines under the International Law of the Sea: Committee Report, 2012, 385–428 Cases: Arbitral Tribunal, Delimitation of the Maritime Areas between Canada and France (France v. Canada), Decision of 10 June 1992, RIAA XXI, 265; ICJ, Case Concerning the Arbitral Award of 31 July 1989 (GuineaBissau v. Senegal), ICJ Reports (1991), 53; ICJ, Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), Judgment of 24 February 1982, ICJ Reports (1982), 18; ICJ, Continental Shelf (Libyan Arab Jamahiriya v. Malta), Judgment of 3 June 1985, ICJ Reports (1985), 13; ICJ, Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States of America), Judgment of 12 October 1984, ICJ Reports (1984), 246; ICJ, Fisheries Jurisdiction (United Kingdom v. Iceland), Judgment of 25 July 1974, ICJ Reports (1974), 3; ICJ, Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment of 3 February 2009, ICJ Reports (2009), 61; ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Netherlands/Denmark), Judgment of 20 February 1969, ICJ Reports (1969), 3 105 Maggio on Art. 77 MN 26; see also Robin Warner, Protecting the Diversity of the Depths: Environmental Regulation of Bioprospecting and Marine Scientific Research Beyond National Jurisdiction, Ocean Yearbook 22 (2008), 411, 419; David K. Leary, International Law and the Genetic Resources of the Deep Sea (2007), 94; Proelss (note 45), 427 et seq. 106 By its own account (http://www.statoil.com/en/TechnologyInnovation/NewEnergy/Co2CaptureStorage/Pages/ SleipnerVest.aspx), the Norwegian oil and gas company Statoil has captured and stored up to one million tons of CO2 annually since 1996 in the Sleipner area of the North Sea, which is located on the Norwegian continental shelf. 107 Alexander Proelss/Kerstin Gu ¨ ssow, Carbon Capture and Storage from the Perspective of International Law, European Yearbook of International Economic Law 2 (2011), 151, 155 et seq.; Ray Purdy, Geological Carbon Dioxide Storage and the Law, in: Simon Shackley/Claire Gough (eds.), Carbon Capture and its Storage (2006), 87, 100.

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1–2

Part V. Exclusive economic zone Contents

I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘exclusive economic zone shall not extend beyond 200 nautical miles’ . . . . . . . . . 2. ‘from the baselines from which the breadth of the territorial sea is measured’ .

1 2 5 5 8

I. Purpose and Function 1

Art. 57 serves the purpose to prescribe the maximum breadth of the exclusive economic zone (EEZ) by reference to the 200 NM distance criterion. It clarifies that the EEZ on the one hand and the continental shelf on the other are, as regards their spatial extent, not necessarily identical, taking into account that the maximum outward limit of the EEZ is determined in absolute terms, i. e., independent of geographical or biological criteria or those mentioned in Art. 76 (4).1 It can be derived from this that the justification for the EEZ regime differs from that of the continental shelf. As stated by E VENSEN, the EEZ ‘is not based on the concept of natural prolongation, but on the concept that a coastal State should have functional sovereign rights over the natural resources in a belt of water and sea-bed 200 miles seawards whether the coastal State concerned possesses a continental shelf in the traditional sense or not.’2

In normative terms, the outer limit of the EEZ establishes the boundary between the regime of the EEZ and that of the high seas.3 Taking into account that the great majority of coastal States have, where spatially possible, claimed an EEZ of 200 NM, 4 and in light of the fact that there is no indication whatsoever of claims exceeding 200 NM, it is fair to conclude that the distance criterion codified in Art. 57 is, similar to the regime of the EEZ as such, 5 valid under customary international law.6

II. Historical Background 2

Historically, the issue of the breadth of the EEZ was inseparably linked to the first attempts of coastal and island States to extend their jurisdiction concerning fisheries to areas beyond the outer limits of their territorial seas. 7 In the course of the 1958 Geneva Conference, several proposals were submitted8 that militated in favor of accepting a 6 NM zone beyond the outer limits of the territorial sea, within which the coastal State was to be entitled to exercise ‘the same rights in respect of fishing and the exploitation of the living resources of the sea as it has in the territorial sea’, 9 but these proposals did not obtain the 1 See ICJ, Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), Judgment of 24 February 1982, Dissenting Opinion of Judge Evensen, ICJ Reports (1982), 18, 278, 284 (para. 7); cf. also (in respect of the continental shelf) ibid., Separate Opinion of Judge Jime´nez de Are´chaga, 100, 114 (para. 51). 2 Ibid., Dissenting Opinion of Judge Evensen, 287 (para. 9). 3 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 552. 4 For an overview on relevant State practice, see the table provided at: http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/table_summary_of_claims.pdf. 5 See Proelss on Art. 55 MN 3. 6 Concerning the breadth of the continental shelf: Tunisia/Libya Case (note 1), Separate Opinion of Judge Jime´nez de Are´chaga, 114 (para. 52). 7 For details see Proelss on Art. 55 MN 5 et seq. 8 UNCLOS I, United States of America: Proposal (Article 3), UN Doc. A/CONF.13/C.1/L.159 (1958), OR III, 253; UNCLOS I, Canada, India and Mexico: Proposal (Article 3), UN Doc. A/CONF.13/C.1/L.77/REV.2 (1958), OR III, 232; UNCLOS I, Canada: Revised Proposal (Article 3), UN Doc. A/CONF.13/C.1/L.77/REV.3 (1958), OR III, 232. 9 Canada: Revised Proposal (note 8).

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57

necessary majority in the plenary of the Conference.10 In the early 1960s, however, the dominant doctrine of unity of territorial sea and fisheries zone came under increasing pressure, following Iceland’s decision to claim a 12 NM fishing zone attached to its territorial sea.11 The announcement of Iceland to further extend this zone to a breadth of 50 NM resulted in proceedings before the International Court of Justice (ICJ) initiated by Germany and the United Kingdom. However, the Court’s decision, according to which Iceland’s unilateral extension of exclusive fishing rights to 50 NM was not opposable to Germany and the United Kingdom,12 was overtaken by developments in State practice that took place prior to and in the course of UNCLOS III. Already in 1952, Chile, Ecuador and Peru had claimed that ‘they each possess exclusive sovereignty and jurisdiction over the sea along the coasts of their respective countries to a minimum distance of 200 nautical miles from these coasts.’13 With the 1972 Declaration of Santo Domingo,14 several Caribbean States then argued in favor of the existence of a patrimonial sea of a maximum breadth of 200 NM, within which the coastal State would exercise sovereign rights of over the renewable and non-renewable natural resources. This position was reflected in the deliberations of the UN Sea-Bed Committee. In its 3 proposal on ‘The Exclusive Economic Zone Concept’ submitted in 1972, Kenya suggested the following provision concerning the breadth of the EEZ: ‘The limits of the Economic Zone shall be fixed in nautical miles in accordance with criteria in each region which take into consideration the resources of the region and the rights and interests of developing land-locked, near land-locked, shelf-locked States and States with narrow shelves and without prejudice to limits adopted by any State within the region. The Economic Zone shall not in any case exceed 200 nautical miles, measured from the baselines for determining territorial sea.’15

Other States agreed with that proposal inasmuch as while the maximum breadth would have to be set at 200 NM, other requirements such as geographical, geological, biological, ecological, economic and national security factors should be taken into account when delineating the zone concerned (referred to either as ‘patrimonial sea’, ‘exclusive economic zone’, ‘economic zone’ or ‘intermediate zone’).16 A second group of States argued in favour of accepting only the distance criterion of a maximum breadth of 200 NM measured from the baselines,17 while a third group decided to leave the issue open for future determination.18 Some States emphasized that the maximum limit of 200 NM would not exclude the 10

See UNCLOS I, Summary Records of the 14th Plenary Meeting, UN Doc. (1958), OR II, 39. ICJ, Fisheries Jurisdiction (United Kingdom v. Iceland), Judgment of 25 July 1974, ICJ Reports (1974), 3, 12 (para. 23). 12 For further information and references, see Proelss on Art. 55 MN 8. 13 Declaration on the Maritime Zone of 18 August 1952, para. II, 1006 UNTS 325. The reason why the figure of 200 NM was chosen remains unclear; see Ann L. Hollick, The Origins of the 200-mile Offshore Zones, AJIL 71 (1977), 494, 495 et seq.; Robin R. Churchill/Alan V. Lowe, Law of the Sea (3rd edn. 1999), 163. 14 Declaration of Santo Domingo of 9 June 1972, AJIL 66 (1972), 918. 15 Sea-Bed Committee, Kenya: Draft Articles on Exclusive Economic Zone Concept, UN Doc. A/AC.138/SC.II/ L.10 (1972), GAOR 27th Sess. Suppl. 21 (A/8721), 180, 181 (Art. VII). 16 Sea-Bed Committee, Iceland: Jurisdiction of Coastal States over Natural Resources of the Area Adjacent to their Territorial Sea, UN Doc. A/AC.138/SC.II/L.23 (1973), GAOR 28th Sess., Suppl. 21 (A/9021-III), 23; Sea-Bed Committee, China: Sea Area within the Limits of National Jurisdiction, UN Doc. A/AC.138/SC.II/L.34 (1973), GAOR 28th Sess., Suppl. 21 (A/9021-III), 71, 72 (para. 2 (1)); Sea-Bed Committee, Algeria et al.: Draft Articles on Exclusive Economic Zone, UN Doc. A/AC.138/SC.II/L.34 (1973), GAOR 28th Sess., Suppl. 21 (A/9021-III), 87 (Art. I). 17 Sea-Bed Committee, Colombia, Mexico and Venezuela: Draft Articles on Treaty, UN Doc. A/AC.138/ SC.II/L.21 (1973), GAOR 28th Sess., Suppl. 21 (A/9021-III), 19, 20 (Art. 8); Sea-Bed Committee, Pakistan: Breadth of the Territorial Sea and Boundaries of the Exclusive Economic Zone, UN Doc. A/AC.138/SC.II/L.23 (1973), GAOR 28th Sess., Suppl. 21 (A/9021-III), 106. See also UNCLOS III, Declaration of the Organization of African Unity on the Issues of the Law of the Sea, UN Doc. A/CONF.62/33 (1974), OR III, 63, 64 (para. 6). 18 Sea-Bed Committee, USA: Draft Articles for a Chapter on the Rights and Duties of States in the Coastal SeaBed Economic Area, UN Doc. A/AC.138/SC.II/L.34 (1973), GAOR 28th Sess., Suppl. 21 (A/9021-III), 75 (Art. 1 (2)); Sea-Bed Committee, Canada et al.: Draft Articles on Fisheries, UN Doc. A/AC.138/SC.II/L.37 (1973), GAOR 28th 11

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possibility of an outer continental shelf (extending beyond the EEZ).19 As far as can be seen, only one State (Argentina) favoured accepting that the EEZ could extend beyond 200 NM measured from the baselines by pointing to the concept of ‘epicontinental sea’. 20 4 In the course of UNCLOS III, most proposals concerning the EEZ exclusively referred to a maximum breadth of that zone of 200 NM from the baselines from which the territorial sea is measured.21 An attempt made by some European States to expressly allocate to the coastal State discretion as to the extent of the EEZ, but also to require it in this context to take into account ‘all relevant factors, in particular the geographical characteristics of the area and the fishery resources and their distribution off its coast’,22 remained unsuccessful. In light of the fact that also this proposal referred to the maximum distance criterion of 200 NM, it was considered neither necessary nor appropriate to specify in any way the requirements to be observed by the coastal State when exercising its discretion in respect of the delineation of the EEZ. The Chairman of the Second Committee summarized the position advocated by the clear majority of States in the following terms: ‘The idea of a territorial sea of 12 miles and an exclusive economic zone beyond the territorial sea up to a total maximum distance of 200 miles is, at least at this time, the keystone of the compromise solution favoured by the majority of the States participating in the Conference, as is apparent from the general debate in the plenary meetings and the discussions held in our Committee.’ 23

He also made it clear that acceptance of the envisaged EEZ regime would depend on the satisfactory solution of other issues, such as the straits question, the concept of the outer continental shelf and the rights land-locked geographically disadvantaged States, thereby anticipating the ‘package deal approach’ on which the Convention was ultimately based. 24 Since that time, the 200 NM maximum distance criterion remained, as far as can be seen, undisputed.25 An informal proposal on the EEZ submitted by the Informal Group of Juridical Experts (Evensen group) in the course of the Third Session already contained a provision whose wording was virtually identical to that of Art. 57;26 it was later included without Sess., Suppl. 21 (A/9021-III), 82 (Art. 2); Sea-Bed Committee, Afghanistan et al.: Draft Articles on Resource Jurisdiction of Coastal States beyond the Territorial Sea, UN Doc. A/AC.138/SC.II/L.39 (1973), GAOR 28th Sess., Suppl. 21 (A/9021-III), 85 (Art. I (2)); Algeria et al.: Draft Articles (note 16), 87 (Art. I); Sea-Bed Committee, Uganda and Zambia: Draft Articles on the Proposed Economic Zone, UN Doc. A/AC.138/SC.II/L.36 (1973), GAOR 28th Sess., Suppl. 21 (A/9021-III), 89, 90 (Art. 4 (1)); Sea-Bed Committee, Netherlands: Proposal Concerning an Intermediate Zone, UN Doc. A/AC.138/SC.II/L.59 (1973), GAOR 28th Sess., Suppl. 21 (A/9021-III), 111, 112 (Art. 1 (a)). 19 Sea-Bed Committee, Australia and Norway: Certain Basic Principles on an Economic Zone and on Delimitation, UN Doc. A/AC.138/SC.II/L.36 (1973), GAOR 28th Sess., Suppl. 21 (A/9021-III), 77, 78 (para. 1 (c)). 20 Sea-Bed Committee, Argentina: Draft Articles, UN Doc. A/AC.138/SC.II/L.37 (1973), GAOR 28th Sess., Suppl. 21 (A/9021-III), 78, 79 (para. 4). According to this proposal, the concept of ‘epicontinental sea’ refers to ‘the column of water covering the sea-bed and subsoil which are situated at an average depth of 200 metres’ (ibid.). 21 UNCLOS III, Canada et al.: Working Paper, UN Doc. A/CONF.62/L.4 (1974), OR III, 81, 82 (Art. 13); UNCLOS III, Nigeria: Revised Draft Articles on the Exclusive Economic Zone, UN Doc. A/CONF.62/C.2/L.21/ REV.1 (1974), OR III, 199 (Art. 1 (1)); UNCLOS III, Bulgaria et al.: Draft Articles on the Economic Zone, UN Doc. A/CONF.62/C.2/L.38 (1974), OR III, 214, 215 (Art. 3); UNCLOS III, United States of America: Draft Articles for a Chapter on the Economic Zone and the Continental Shelf, UN Doc. A/CONF.62/C.2/L.47 (1974), OR III, 222 (Art. 2); UNCLOS III, Bolivia and Paraguay: Draft Articles on the “Regional Economic Zone”, UN Doc. A/CONF.62/C.2/L.65 (1974), OR 234 (Art. 1); UNCLOS III, Gambia et al.: Draft Articles on the Exclusive Economic Zone, UN Doc. A/CONF.62/C.2/L.82 (1974), OR III, 240 (Art. 1). 22 UNCLOS III, Belgium et al.: Draft Articles on Fisheries, UN Doc. A/CONF.62/C.2/L.40 and ADD.1 (1974), OR III, 217 (Art. 5). 23 UNCLOS III, Statement by the Chairman of the Second Committee at its 46th Meeting, UN Doc.A/ CONF.62/C.2/L.86 (1974), OR III, 242, 243. 24 Ibid. 25 Tunisia/Libya Case (note 1), Dissenting Opinion of Judge Oda, 227 (para. 117). – An informal comment submitted by Singapore remains unclear. See UNCLOS III, Singapore: Articles 45–60 (ISNT II) (1976, mimeo.), reproduced in: Renate Platzo¨der (ed.), Third United Nations Conference on the Law of the Sea: Documents, vol. IV (1983), 290, 291 (Art. 46): ‘General reservation on 200 miles […] provided rights of land-locked and geographically disadvantaged States are fairly accommodated.’ 26 UNCLOS III, The Economic Zone (1975, mimeo.), reproduced in: Platzo ¨ der (note 25), 209, 211 (Art. 2).

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further amendment in the Informal Single Negotiating Text27 and, with the sole exception of ‘baseline’ being changed to ‘baselines’, in the Revised Single Negotiating Text. 28 In the Informal Composite Negotiating Text, the provision became Art. 57, and no further amendments were adopted.29

III. Elements 1. ‘shall not extend beyond 200 nautical miles’ Art. 57 determines the maximum breadth of the EEZ by referring to the criterion of the 5 distance of maximum 200 NM from the baselines from which the breadth of the territorial sea is measured. The negative phrasing (‘shall not extend’) of this provision implies that the coastal State is free to decide to claim an EEZ of a lesser extent.30 The unilateral process of determining the outward limits of the EEZ is referred to as ‘delineation’. Where the sea area concerned is, due to the presence of adjacent or opposite coastal States, not large enough (i. e., the distance between the baselines of the States is less than 400 NM) to claim an EEZ of 200 NM, delineation of a 200 NM EEZ is not allowed;31 rather, the States involved are under the duty to conclude a delimitation agreement with the aim to achieve an equitable solution (see Art. 74 (1)). Notwithstanding the fact that the EEZ, in contrast to the continental shelf, is not subject to 6 an ‘inherent right’32 of the coastal State, and that the EEZ and the continental shelf thus have distinct legal bases, Art. 56 (1)(a) and (3) demonstrates that the two zones form part of an integral regime, if and to the extent to which the coastal State has claimed and established an EEZ above its continental shelf.33 In light of this, it has been asked by EVENSEN whether ‘different lines of delimitation are conceivable for the Exclusive Economic Zone and the continental shelf in such a case, bearing in mind that the exclusive economic zone concept laid down in Part V of the draft convention also comprises the natural mineral resources of the sea-bed and its subsoil, that is the natural resources of the continental shelf.’ 34

State practice shows that in the majority of cases a single maritime boundary as outer limits of the EEZ and the continental shelf, or a single line of delimitation between States with adjacent or opposite coasts respectively, has been established. While drawing such single lines can therefore not be considered as being in any way prohibited under international law, 35 it should be noted, however, that coastal States are not legally bound to decide, or agree, on such course of action, in particular in situations where an agreement concerning delimitation of the continental shelf of States with adjacent or opposite coasts has already been concluded prior to the delimitation of the EEZs.36 At the same time, the ICJ considered the distance criterion 27 UNCLOS III, Informal Single Negotiating Text, Part II, UN Doc. A/CONF.62/WP.8/PART II (1975), OR IV, 152, 159 (Art. 46). 28 UNCLOS III, Revised Single Negotiating Text, Part II, UN Doc. A/CONF.62/WP.8/REV.1/PART II (1976), OR V, 151, 160 (Art. 45). 29 UNCLOS III, Informal Composite Negotiating Text, UN Doc. A/CONF.62/WP.10 (1977), OR VIII, 1, 13 (Art. 57). 30 Donald R. Rothwell/Tim Stephens, The International Law of the Sea (2nd edn. 2016), 88. 31 See ICJ, Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States of America), Judgment of 12 October 1984, ICJ Reports (1984), 246, 299 (para. 112): ‘No maritime delimitation between States with opposite or adjacent coasts may be effected unilaterally by one of those States.’ 32 ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Netherlands/Denmark), Judgment of 20 February 1969, ICJ Reports (1969), 3, 22 (para. 19). 33 See Proelss on Art. 55 MN 3. 34 Tunisia/Libya Case (note 1), Dissenting Opinion of Judge Evensen, 287 (para. 9). 35 Arbitral Tribunal, Delimitation of the Maritime Areas between Canada and France (France v. Canada), Decision of 10 June 1992, RIAA XXI, 265, 282 (para. 37); Gulf of Maine Case (note 31), 246, 267 (para. 27); Tunisia/Libya Case (note 1), Dissenting Opinion of Judge Evensen, 296 (para. 15). 36 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 552, relying on ICJ, Case Concerning the Arbitral Award of 31 July

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codified in Art. 57 as a ‘relevant circumstance’ to be taken into account in the context of the continental shelf delimitation.37 One must thus conclude that the issue of single maritime boundary is characterized by a considerable degree of flexibility. 7 On closer examination, the fact that Art. 57 refers to the ‘baselines from which the breadth of the territorial sea is measured’ as point of origin for delineating the EEZ reveals that the EEZ overlaps with the territorial sea (as far as the maximum breadth of that zone of 12 NM is concerned) and, if claimed, with the contiguous zone (in respect of the first 12 NM beyond the outer limits of the territorial sea). Taking into account that the sovereignty of the coastal State extends to the territorial sea, and that the degree of the coastal State’s jurisdiction thus goes far beyond that allocated to it in the EEZ, the regime of this zone only applies in the area between the outer limits of the territorial sea and the 200 NM maximum extent. It would therefore be more accurate to refer to the EEZ as a 188 miles zone (in case the coastal State has delineated a 12 NM territorial sea). 38 The situation is different in respect of the contiguous zone, with regard to which the coastal State has not been allocated jurisdiction to prescribe, but is only authorized to exercise the control necessary to prevent and punish infringements of its laws within the territorial sea (see Art. 33).

2. ‘from the baselines from which the breadth of the territorial sea is measured’ The second element of Art. 57 refers to the ‘baselines from which the breadth of the territorial sea is measured’ as point of origin for delineating the EEZ. It has correctly been stated that this ‘encompasses claims from normal and straight baselines, and bay closing lines, drawn along coastlines consistent with Part II of the LOSC.’39 Even though the wording of Art. 57 does not use the formula codified in Art. 3 (‘measured from baselines determined in accordance with this Convention’) but seems to refer to the mere existence of baselines, baselines not drawn in accordance with the requirements codified in Part II cannot be relied upon as the basis for lawful delineation of the outward limits of the EEZ. Rather, the formula contained in Art. 57 (‘baselines from which the breadth of the territorial sea is measured’) must be interpreted in light of Art. 3, which is why the legality of the outward limit of the EEZ is directly linked to that of the drawing of baselines. 40 In case of archipelagic States, Art. 48 prescribes that the breadth of the EEZ shall be measured from archipelagic baselines drawn in accordance with Art. 47.41 9 In contrast to the rules applicable to the territorial sea (Art. 4), it is not specified by Art. 57 how the outer limit of the EEZ ought to be established.42 This gap suggests that the coastal State enjoys a considerable scope of discretion in deciding which of the generally accepted methods (loxodromes v. geodetic lines) it intends to use for connecting the relevant 8

1989 (Guinea-Bissau v. Senegal), ICJ Reports (1991), 53, 72 (para. 55 et seq.). Note, however, the argument presented by Evensen according to which the fact that the regime of the EEZ is, as far as the maximum breadth of the zone is concerned, based on a distance criterion ‘seems to strengthen the equidistance/median line principle as an equitable approach for delimiting overlapping areas’ (Tunisia/Libya Case (note 1), Dissenting Opinion of Judge Evensen, 296 (para. 15)). 37 ICJ, Continental Shelf (Libyan Arab Jamahiriya v. Malta), Judgment of 3 June 1985, ICJ Reports (1985), 13, 33 (para. 33); see also Tunisia/Libya Case (note 1), Dissenting Opinion of Judge Evensen, 296 (para. 15), arguing that the fact that the regime of the EEZ is, as far as the maximum breadth of the zone is concerned, based on a distance criterion ‘seems to strengthen the equidistance/median line principle as an equitable approach for delimiting overlapping areas’. 38 Churchill/Lowe (note 13), 162 (footnote 6); see also Rothwell/Stephens (note 30), 88. 39 Rothwell/Stephens (note 30), 89. 40 In contrast, there is no direct link between the issue of determining the baseline for the purpose of measuring the breadth of the EEZ and the issue of identifying base points for drawing an equidistance/median line for the purpose of delimiting the EEZ between adjacent or opposite States; see ICJ, Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment of 3 February 2009, ICJ Reports (2009), 61, 108 (para. 137). 41 See Symmons on Art. 48 MN 3 et seq. 42 Nordquist/Nandan/Rosenne (note 36), 551.

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geographical coordinates.43 According to Art. 75, the outer limit lines of the EEZ ‘shall be shown on charts of a scale or scales adequate for ascertaining their position’ (Art. 75 (1)), and the coastal State is 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 Secretary-General of the United Nations’ (Art. 75 (2)). The fact that Art. 57 establishes a direct nexus between the outer limit of the EEZ on the one 10 hand and the ‘baselines from which the breadth of the territorial sea is measured’ on the other implies that if the baseline of the coastal State moves inland due to, say, natural changes of the coastline,44 the outer limit of the EEZ will likewise move landward. Although it has been stated that the outer limits of the EEZ are often less susceptible to change as they rely on a limited number of critical basepoints which are not necessarily subject to change even in case of significant changes in the location of the coastline,45 the dependence of the outer limit of the EEZ on the course of the coastal State’s baselines may lead to problems with regard to island States that are particularly vulnerable, but have regularly only contributed marginally to, sealevel rise. Under the law as it stands today, the unavoidable consequence of accepting ambulatory baselines arguably is that sea-level rise will ultimately result in loss of maritime space, or, in case of sinking of island States that are particular vulnerable to climate change due to their low elevation and small size, total loss of territory and potentially also Statehood. Virtually all sources that have addressed this issue so far have come to the conclusion that this is an inacceptable result. Thus, different options have been proposed de lege ferenda how existing maritime entitlements could be preserved, the most common ones being to ‘freeze’ either the existing baselines in their current position46 or the outer limits of the EEZ.47 The second option would imply that the nexus between the outer limit of the EEZ and the baselines from which the breadth of the territorial sea is measured on which Art. 57 is based must be abandoned by way of a new rule of customary international law or a multilateral agreement. 48 The matter is currently assessed by the ILA Committee on International Law and Sea Level Rise. As of today, the sole exception to the rule according to which a sovereign territory that is 11 eligible to generate a territorial sea in accordance with the principle ‘the land dominates the sea’49 qualifies as the point of origin for delineating an EEZ is codified in Art. 121 (3): Whereas rocks that cannot sustain human habitation or economic life of their own generate a territorial sea, they shall have no EEZ or continental shelf. 50 According to Art. 60 (8), artificial islands, installations and structures do not possess the status of islands and do thus not even generate a territorial sea of their own.51 43

Ibid. A report submitted by a Committee of the International Law Association (ILA) in 2012 concluded that baselines are generally ambulatory. See Report of the Seventy-Fifth Conference held in Sofia, Baselines under the International Law of the Sea: Committee Report, 2012, 385–428. For further information see Tru¨mpler on Art. 5 MN 15–22 and MN 38–42. 45 Clive Schofield, Defining the ‘Boundary’ between Land and Sea: Territorial Sea Baselines in the South China Sea, in: S. Jayakumar/Tommy Koh/Robert Beckman (eds.), The South China Sea Disputes and the Law of the Sea (2014), 21–54. 46 David D. Caron, Climate Change, Sea Level Rise and the Coming Uncertainty in Oceanic Boundaries: A Proposal to Avoid Conflict, in: Seoung-Yong Hong/John M. Van Dyke (eds), Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea (2009), 1, 14; Jose´ L. Jesus, Rocks, New-born Islands, Sea Level Rise and Maritime Space, in: Jochen A. Frowein et al. (eds.), Negotiating For Peace – Liber Amicorum Tono Eitel (2003), 579, 602. 47 See, e. g., Alfred H. A. Soons, The Effects of a Rising Sea Level on Maritime Limits and Boundaries, Netherlands International Law Review 37 (1990), 207, 231; Rosemary Rayfuse, Sea Level Rise and Maritime Zones: Preserving the Entitlements of “Disappearing” States, in: Michael B. Gerrard/Gregory E. Wannier (eds.), Threatened Island Nations: Legal Implications of Rising Seas and a Changing Climate (2013), 167–191. 48 See also Moritaka Hayashi, Sea Level Rise and the Law of the Sea – Future Options, in: Davor Vidas/Peter J. Schei (eds.), The World Ocean in Globalisation: Challenges and Responses (2011), 187, 196. 49 ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Netherlands/Denmark), Judgment of 20 February 1969, ICJ Reports (1969), 3, 51 (para. 96). 50 For a detailed discussion see Talmon on Art. 121 MN 27–52; Rothwell/Stephens (note 30), 89 et seq. 51 See Proelss on Art. 60 MN 33. 44

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Article 58 Rights and duties of other States in the exclusive economic zone 1. 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 overflight 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. 2. Articles 88 to 115 and other pertinent rules of international law apply to the exclusive economic zone in so far as they are not incompatible with this Part. 3. In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall 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. Bibliography: Jill Barrett/Richard Barnes (eds.), Law of the Sea: UNCLOS as a Living Treaty (2016); Robin R. Churchill/Alan V. Lowe, Law of the Sea (3rd edn. 1999); Jianjun Gao, The ITLOS Advisory Opinion for the SRFC, Chinese JIL 14 (2015), 735–755; Douglas Guilfoyle, The High Seas, in: Donald R. Rothwell/Alex G. Oude Elferink/ Karen N. Scott/Tim Stephens (eds.), The Oxford Handbook of the Law of the Sea (2015), 203–225; Sophia Kopela, The ‘Territorialisation’ of the Exclusive Economic Zone: Implications for Maritime Jurisdiction, available at: https:// www.dur.ac.uk/resources/ibru/conferences/sos/s_kopela_paper.pdf; Barbara Kwiatkowska, The 200 Mile Exclusive Economic Zone in the New Law of the Sea (1989); Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Alexander Proelss, Peaceful Purposes, MPEPIL, available at http://www.mpepil.com; Alexander Proelss, Piracy and the Use of Force, in: Panos Koutrakos/Achilles Skordas (eds.), The Law and Practice at Sea (2014), 53–66; Alexander Proelss/Tobias Hofmann, Law of the Sea and Transnational Organized Crime, in: Pierre Hauck/Sven Peterke (eds.), International Law and Transnational Organised Crime (2016), 422–447; J. Ashley Roach, Marine Data Collection: Methods and the Law, in: Myron H. Nordquist/Tommy T. B. Koh/John N. Moore (eds.), Freedom of Seas, Passage Rights and the 1982 Law of the Sea Convention (2009), 171–208; Donald R. Rothwell/Tim Stephens, The International Law of the Sea (2nd edn. 2016); Valentin Schatz, Combating Illegal Fishing in the Exclusive Economic Zone – Flag State Obligations in the Context of the Primary Responsibility of the Coastal State, Goettingen Journal of International Law 7 (2016), available at: http://www.gojil.eu/issues/prepublished/schatz.pdf; Valentin Schatz, Fishing for Interpretation – The ITLOS Advisory Opinion of April 2015 on Flag State Responsibility for Illegal Fishing in the EEZ, ODIL 47 (2016), 327–345; Ivan Shearer, Military Activities in the Exclusive Economic Zone: The Case of Aerial Surveillance, Ocean Yearbook 17 (2003), 548–562; Yoshifumi Tanaka, The International Law of the Sea (2nd edn. 2015) Documents: GA, Responsibility of States for Internationally Wrongful Acts, GA Res. 56/83 of 28 January 2002; ICAO, Study on United Nations Convention on the Law of the Sea – Implications, if any, for the Application of the Chicago Convention, its Annexes, and other International Air Law Instruments, ICAO Doc. C.WP/7777 (1984); IHO, Manual on Hydrography, Publication C-13 (2005); SC Res.1838 of 7 October 2008; UN DOALOS, Baselines: An Examination of the Relevant Provisions of the United Nations Convention on the Law of the Sea, Appendix I: Consolidated Glossary of Technical Terms Used in the United Nations Convention on the Law of the Sea (1989) Cases: CJEU, Case C-308/06, Judgment of 3 June 2008, Intertanko [2008] ECR I-4057; ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA) (Merits), Judgment of 27 June 1986, ICJ Reports (1986), 14; ITLOS, Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion of 2 April 2015, available at: https://www.itlos.org/en/cases/list-ofcases/case-no-21/; ITLOS, The ‘Monte Confurco’ (Seychelles v. France), Judgment of 18 December 2000, ITLOS Reports (2000), 86; ITLOS, The M/V ‘Saiga’ (St. Vincent and the Grenadines v. Guinea), Merits, Judgment of 1 July 1999, ITLOS Reports (1999), 10; ITLOS, The M/V ‘Virginia G’ Case (Panama v. Guinea-Bissau), Judgment of 14 April 2014, available at: http://www.itlos.org/index.php?id=171; PCA, South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, available at: http://www.pcacases.com/pcadocs/PHCN%20-%2020160712%20-%20Award.pdf

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Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘All States, whether coastal or land-locked, enjoy, subject to the relevant provisions of this Convention’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘freedoms referred to in article 87 of navigation and overflight and of the laying of submarine cables and pipelines’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘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’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. ‘compatible with the other provisions of this Convention’ . . . . . . . . . . . . . . . . . . . . . . 5. ‘Articles 88 to 115 and other pertinent rules of international law apply to the exclusive economic zone in so far as they are not incompatible with this Part’ . 6. ‘In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. ‘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.’. . . . . . . . .

1 3 9 9 11 16 20 21 23 24

I. Purpose and Function Art. 58 is one of the few provisions included in Part V that does not address the powers of 1 the coastal State, but rather deals with the rights and obligations of other States in the exclusive economic zone (EEZ), thus serving as the counterpart of Art. 56. By legally reflecting the functional sui generis status of the EEZ,1 Art. 58, read together with Art. 56, must be considered as establishing the core of the concept of that zone.2 Art. 58 (1) complements Art. 56 (2) and is dedicated to the rights of other States. As stated by one authority, these rights are ‘are all essentially concerned with international communications and are those high-seas freedoms that have survived the demands of coastal States.’3 In this respect, of the four high seas freedoms codified in the 1958 Geneva Convention on the High Seas,4 only fishing in the EEZ has been subjected to the sovereign rights of the coastal State and is thus governed by Art. 56 (1). In light of this, it is fair to conclude that the main purpose of Art. 58 is to safeguard the interests of the major maritime States.5 Taking into account that the wording of Art. 58 (1) also refers to ‘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 is not surprising that the exact scope of the ‘freedom of communications’ (jus communicationis)6 has been a controversial issue ever since. Where the Convention attributes rights, jurisdiction or freedoms respectively neither to the coastal State nor to other States, the resolution of conflicts of interests in the EEZ ought to be governed in line with Art. 59. Art. 58 (2) renders applicable the general provisions of the regime of the high seas codified 2 in Arts. 88–115 whose main focus is on shipping and flag State jurisdiction, but only if and to the extent to which they are not incompatible with Part V of the Convention. Similar to Art. 58 (1), which subjects the freedom of communications to ‘the relevant provisions of this Convention’, Art. 58 (2) clarifies that the regime of the high seas has not been made 1

See Proelss on Art. 55 MN 5–9. Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 526. 3 Robin R. Churchill/Alan V. Lowe, Law of the Sea (3rd edn. 1999), 170. 4 Art. 2 Convention on the High Seas of 29 April 1958, 450 UNTS 11. 5 Donald R. Rothwell/Tim Stephens, The International Law of the Sea (2nd edn. 2016), 97. 6 The term ‘freedom of communications’ was used by the ICJ in the Nicaragua case; see ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA) (Merits), Judgment of 27 June 1986, ICJ Reports (1986), 14, 112. 2

Proelss

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applicable to the EEZ in an unmodified manner. Finally, together with Art. 56 (2), Art. 58 (3) prescribes a mutual due regard rule to be observed by the coastal State and other States when exercising their rights and duties in the EEZ. While Art. 58 (1) addresses the rights of other States, Art. 58 (3) is concerned with their duties. The latter provision implies that neither the coastal State’s sovereign rights and jurisdiction nor the freedoms of other States are valid in the EEZ in an absolute manner. Art. 58 (3) furthermore obliges other States to comply with the laws and regulations adopted by the coastal State on the basis of Art. 56 (1), provided that these measures are in conformity with Part V and other provisions of the Convention as well as with the rules and principles of public international law in general.

II. Historical Background In 1972, Kenya submitted a proposal to the Seabed Committee concerning ‘Draft articles on exclusive economic zone concept’, Art. III of which clarified that the new zone ‘shall be without prejudice to the exercise of freedom of navigation, freedom of overflight and freedom to lay submarine cables and pipelines as recognized in international law.’7 The rule codified today in Art. 58 (1) was thus linked to the establishment of the EEZ and the coastal State’s powers from the very outset. Other proposals submitted in the course of the Sea-Bed Committee equally referred to the freedoms of navigation and overflight as well as of the laying of cables and pipelines.8 These freedoms were considered to be valid ‘with no restrictions other than those resulting from the exercise by the coastal State of its rights within the area’ and to the freedom to lay submarine cables and pipelines. 9 Malta proposed to include a provision into the future Convention demanding that the ‘exploration and exploitation of the natural resources of national ocean space shall be conducted with reasonable regard to other uses of national ocean space, in particular navigation, scientific research and the laying and repair of submarine cables and pipelines’10 4 It is interesting to see that several States, or groups of States, that submitted proposals on what is today codified in Art. 5611 refrained from also commenting on the rights and freedoms of other States, a fact that demonstrates that the development of the regime of the EEZ was clearly triggered by coastal States with the aim to be authorized to exercise sovereign rights and jurisdiction in a broader area beyond the outer limits of their territorial sea. Furthermore, as far as the scope of the freedoms of other States is concerned, it should be noted that controversies that have become manifest in recent years were already reflected in the positions taken by China and the US in the Sea-Bed Committee. While China submitted a more restrictive proposal that referred to ‘normal navigation and overflight on the water surface of and in the air space above the economic zone by ships and aircraft of all states’ (a phrasing that may arguably be understood as excluding navigation of military vessels as well as submarines) and that made the delineation of the course for laying cables and pipelines ‘subject to the consent of 3

7 Sea-Bed Committee, Kenya: Draft Articles on Exclusive Economic Zone Concept, UN Doc. A/AC.138/SC.II/ L.10 (1972), GAOR 27th Sess., Suppl. 21 (A/8721), 180 (Art. III). 8 Sea-Bed Committee, Colombia, Mexico and Venezuela: Draft Articles on Treaty, UN Doc. A/AC.138/SC.II/ L.21 (1973), GAOR 28th Sess., Suppl. 21 (A/9021-III), 19, 20 (Arts. 9 and 10); see also Sea-Bed Committee, Argentina: Draft Articles, UN Doc. A/AC.138/SC.II/L.37 (1973), GAOR 28th Sess., Suppl. 21 (A/9021-III), 78, 80 (para. 13); Sea-Bed Committee, Australia and Norway: Certain Basic Principles on an Economic Zone and on Delimitation, UN Doc. A/AC.138/SC.II/L.36 (1973), GAOR 28th Sess., Suppl. 21 (A/9021-III), 77, 78 (para. 1 (d)); Sea-Bed Committee, Algeria et al.: Draft Articles on Exclusive Economic Zone, UN Doc. A/AC.138/SC.II/ L.40 (1973), GAOR 28th Sess., Suppl. 21 (A/9021-III), 87, 88 (Art. IV). 9 Colombia, Mexico and Venezuela: Draft Articles (note 8), 20 (Art. 9). 10 Sea-Bed Committee, Malta: Preliminary Draft Articles on the Delimitation of Coastal State Jurisdiction in Ocean Space and on the Rights and Obligations of Coastal States in the Area under Their Jurisdiction, UN Doc. A/AC.138/SC.II/L.28 (1973), GAOR 28th Sess., Suppl. 21 (A/9021-III), 35, 61 (Art. 80). 11 For references see Proelss on Art. 56 MN 4.

446

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Art. 58

the coastal State’,12 the US proposal insisted on the coastal State, when exercising its rights in the EEZ, being obliged to act ‘in strict conformity with the provisions of this chapter and other applicable provisions of this Convention’.13 In the course of UNCLOS III, several proposals adopted the idea expressed in some of the 5 documents referred to above that the two groups of States (coastal States and other States) were mutually obliged to not interfere with the lawful exercise of the rights, or freedoms respectively, of the other group of States.14 Based on these proposals, Provision 97 of the Main Trends Working Paper contained four alternative formulations regarding the rights and duties of other States in the EEZ.15 In the course of the Third Session, the Evensen Group prepared a draft provision to be included in the future articles on the EEZ, paragraph 1 of which came quite close to the wording of what is today Art. 58 (1): ‘All States, whether coastal or land-locked, shall, subject to the relevant provisions of this Convention, enjoy [in] the exclusive economic zone the freedoms of navigation and overflight and of the laying of submarine cables and pipelines and other internationally lawful uses of the sea related to navigation and communication and shall have other rights and duties provided for in this Convention.’16

This proposal is particularly noteworthy due to the fact that it was the first text that included a reference to ‘other internationally lawful uses of the sea related to navigation and communication’. Moreover, paragraph 3 of the proposed provision required States, when exercising their freedoms in the EEZ, ‘to have due regard to the rights and duties of the coastal State and shall act in a manner compatible with the provisions of this Convention.’ A proposal submitted by the Group of 77 and the Part II of the Informal Single Negotiating 6 Text (ISNT) closely followed the text submitted by the Evensen Group. That said, the first document referred to ‘other legitimate uses of the sea’ and dropped the reference to ‘other rights and duties provided for in this Convention’.17 Its second paragraph, relying on paragraph 3 of the text submitted by the Evensen Group, expressly referred to the duty to have due regard in particular to the ‘security interests’ of the coastal State. With the exception of the phrase ‘other rights and duties provided for in this Convention’, Art. 47 (1) of the ISNT/ Part II was identical with the first paragraph of the Evensen text.18 In its second paragraph, it referred to specific provisions relevant to the high seas and made them applicable to the EEZ ‘in so far as they are not incompatible with the provisions of this part’. Art. 47 (4) of the ISNT/ Part II amended the third paragraph of the Evensen text by requiring States to ‘comply with the laws and regulations enacted by the coastal State in conformity with the provisions of this part and other rules of international law’. This provision, which abstained from expressly referring to coastal States’ security interests, essentially anticipated Art. 58 (3). Irrespective of minor drafting changes, and with the exception of the rule applicable to 7 situations where the Convention does attribute rights or jurisdiction neither to the coastal 12 Sea-Bed Committee, China: Sea Area within the Limits of National Jurisdiction, UN Doc. A/AC.138/SC.II/ L.34 (1973), GAOR 28th Sess., Suppl. 21 (A/9021-III), 71, 73 (para. 2 (4)). 13 Sea-Bed Committee, US: Draft Articles for a Chapter on the Rights and Duties of States in the Coastal Seabed Economic Area, UN Doc. A/AC.138/SC.II/L.35 (1973), GAOR 28th Sess., Suppl. 21 (A/9021-III), 75, 76 (Art. 2). 14 See, e. g., UNCLOS III, Nigeria: Revised Draft Articles on the Exclusive Economic Zone, UN Doc. A/ CONF.62/C.2/L.21 (1974), OR III, 199 (Arts. 3 (3) and 4 (1)); UNCLOS III, Bulgaria et al.: Draft Articles on the Economic Zone, UN Doc. A/CONF.62/C.2/L.38 (1974), OR III, 214 (Arts. 4 and 6). 15 UNCLOS III, Working Paper of the Second Committee: Main Trends, UN Doc. A/CONF.62/L.8/REV.1 (1974), OR III, 107, 122 (Annex II, Appendix I, Provision 97 on freedom of navigation and overflight). 16 UNCLOS III, The Economic Zone (1975, mimeo.), reproduced in: Renate Platzo ¨ der (ed.), Third United Nations Conference on the Law of the Sea: Documents, vol. IV (1983), 209, 211 (Art. 3). Paragraph 2 of the provision addressed situations where the Convention does attribute rights or jurisdiction neither to the coastal State nor to other States, which are today governed by Art. 59. 17 UNCLOS III, Working Paper on the Exclusive Economic Zone (1975, mimeo.), reproduced in: Platzo ¨ der (note 16), 227, 230 (Art. 7). 18 UNCLOS III, Informal Single Negotiating Text, Part II, UN Doc. A/CONF.62/WP.8/PART II (1975), OR IV, 152, 159 (Art. 47).

Proelss

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8

Part V. Exclusive economic zone

State nor to other States which was moved to a separate provision, Art. 46 of Part II of the Revised Single Negotiating Text (RSNT) did not change the substance of Art. 47 of the ISNT/ Part II.19 In particular, it was not considered necessary to include a proposal made by Peru to clarify that flag States must ensure that their vessels ‘refrain from any threat or use of force against the sovereignty, territorial integrity or political independence’ of the coastal State, 20 taking into account that this duty was already valid under general international law. Several informal amendments that were subsequently introduced in respect of Art. 46 of the RSNT/ Part II referred to the structure of the provision and to specific issues such as the reference contained in paragraph 2 to the regime of the high seas.21 Particularly far-reaching proposals were submitted by the LL/GDS Group. These focused on the inclusion of a paragraph that was intended to clarify that land-locked and geographically disadvantaged States would also enjoy rights relating to the natural resources in the EEZ, and on the deletion of the words ‘related to navigation and communication’ with regard to ‘other internationally lawful uses of the sea’.22 However, both suggestions remained unacceptable for the majority of States as they implied a limitation of the coastal States’ sovereign rights, and a lack of qualification of the scope of freedoms enjoyed by other States. ~eda Group 8 The final wording of Art. 58 was strongly influenced by the work of the Castan that in the course of the Sixth Session prepared a series of proposals concerning the content of Art. 46 of the RSNT/Part II. The last text submitted by the Group was virtually identical with Art. 58 of the Convention. In particular, express reference was made in its paragraph 1 for the first time to the provision prescribing the freedoms of the high seas (Art. 76 of the RSNT/Part II), thereby clarifying that ‘the freedoms to be enjoyed in the exclusive economic zone were, for the most part, the same as those enjoyed on the high seas’, 23 and to ‘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.’24 Furthermore, while paragraph 3 of the provision repeated Art. 46 (2) of the RSNT/Part II verbatim, Art. 46 (3) was amended by reference to the condition that the laws and regulations established by the coastal State should only be complied with ‘insofar as they are not incompatible with this Chapter.’ The pertinent provision of the Informal Composite Negotiating Text was renumbered Art. 58, but essen~eda Group.25 Proposals submitted in the course tially adopted the text proposed by the Castan of the Seventh and Eighth Sessions by the Federal Republic of Germany and the US that respectively aimed at restricting the rights of coastal States, or at widening the scope of the freedoms of other States,26 ultimately remained unsuccessful. They could not be arranged with the primary motive for accepting the regime of the EEZ, namely to extend the rights and jurisdiction of the coastal State towards the sea.

19 UNCLOS III, Revised Single Negotiating Text, Part II, UN Doc. A/CONF.62/WP.8/REV.1/PART II (1976), OR V, 151, 160 (Art. 46). 20 UNCLOS III, Peru, Article 47 (ISNT II) (1976, mimeo.), reproduced in: Platzo ¨ der (note 16), 294. 21 For references see Nordquist/Nandan/Rosenne (note 2), 560–561. 22 UNCLOS III, LL/GDS Group, Articles 44–47 (RSNT II) (1976, mimeo), reproduced in: Platzo ¨ der (note 16), 411, 412 (Art. 46); 412, 413 (Art. 46); and 414, 415 (Art. 46). 23 Nordquist/Nandan/Rosenne (note 2), 563. ~eda Group (1977), reproduced in: Platzo¨der (note 16), 426 et seq. (Art. 46). 24 UNCLOS III, Castan 25 UNCLOS III, Informal Composite Negotiating Text, UN Doc. A/CONF.62/WP.10 (1977), OR VIII, 1, 13 (Art. 58). 26 UNCLOS III, Federal Republic of Germany: Articles 58, 86 and 123 bis (ICNT) (1977), reproduced in: Platzo¨der (note 16), 494 (Art. 58), referring at the end of Art. 58 (1) in broad language to ‘the other internationally lawful uses of the sea’; UNCLOS III, United States: Exclusive Economic Zone (1978), reproduced in: Renate Platzo¨der (ed.), Third United Nations Conference on the Law of the Sea: Documents, Vol. XI (1987), 574: Art. 58 ‘preserves, for the international community, in addition to certain specified high seas freedoms, all other high seas freedoms traditionally enjoyed by ships and aircraft which are recognized by the general principles of international law’.

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Art. 58

III. Elements 1. ‘All States, whether coastal or land-locked, enjoy, subject to the relevant provisions of this Convention’ The first element of Art. 58 (1) clarifies that the freedoms prescribed in this provision can 9 be relied upon by all States, no matter whether they are coastal or land-locked. It accommodates the fact that it is common that States not bordering the sea have a shipping register and are entitled to grant the right to fly their flags. The way in which Art. 58 (1) is drafted also expresses that the freedoms which are declared to be applicable in the EEZ constitute rights of States, not of ships or its masters, of companies intending to lay submarine pipelines or cables, or pilots of aircraft in overflight respectively. 27 The wording of Art. 58 (1) furthermore illustrates that the jus communicationis mentioned 10 in the provision is only applicable in the EEZ ‘subject to the relevant provisions of this Convention’. Compared to the high seas, the exercise of the rights of other States is, therefore, subjected to stricter limits in the EEZ.28 This conclusion has been referred to in the context of Art. 56 as one of the relevant factors implying that a rebuttable presumption in favour of the coastal State should be recognized that is applicable in the event of a conflict between the sovereign rights and jurisdiction of the coastal State and the freedoms of other States. 29

2. ‘freedoms referred to in article 87 of navigation and overflight and of the laying of submarine cables and pipelines’ Art. 58 (1) makes express reference to the freedoms referred to in Art. 87 of navigation and 11 overflight and of the laying of submarine cables and pipelines. That Art. 58 (1) does not mention the other freedoms codified in Art. 87, namely the freedoms of fishing, of scientific research and to construct artificial islands and other installations permitted under international law, results from the fact that the fields concerned have been subjected to the sovereign rights (fishing) and jurisdiction (installations, marine scientific research) of the coastal State by Art. 56 (1). Theoretically, the freedoms of navigation, overflight and laying of submarine cables and pipelines are the same as those incorporated on the high seas,30 but it has already been stated above (see supra, MN 10) that they can only be relied upon in the EEZ if and to the extent to which they are exercised in accordance with the relevant provisions of this Convention. This requirement is directly linked to the issue of the scope of the freedoms codified in Art. 58 (1). As far as the freedom to lay submarine cables and pipelines is concerned, Art. 79 12 constitutes the ‘relevant provision’ in terms of Art. 58 (1). Art. 79 (3) strengthens the position of the coastal State (and consequently limits the freedom of other States) by prescribing that 27 See also CJEU, Case C-308/06, Judgment of 3 June 2008, Intertanko [2008] ECR I-4057, paras. 59, 61: ‘[I]ndividuals are in principle not granted independent rights and freedoms by virtue of UNCLOS. In particular, they can enjoy the freedom of navigation only if they establish a close connection between their ship and a State which grants its nationality to the ship and becomes the ship’s flag State. […] It is true that the wording of certain provisions of UNCLOS, such as Articles 17, 110 (3) and 111 (8), appears to attach rights to ships. It does not, however, follow that those rights are thereby conferred on the individuals linked to those ships, such as their owners, because a ship’s international legal status is dependent on the flag State and not on the fact that it belongs to certain natural or legal persons.’ 28 See also Yoshifumi Tanaka, The International Law of the Sea (2nd edn. 2015), 135; but see the argument presented by Panama in ITLOS, The M/V ‘Virginia G’ (Panama v. Guinea-Bissau), Judgment of 14 April 2014, para. 168, available at: http://www.itlos.org/index.php?id=171. In its decision on the merits in the South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, para. 700, available at: http://www.pcacases.com/ pcadocs/PH-CN%20-%2020160712%20-%20Award.pdf, the Arbitral Tribunal stressed the limited scope of the rights of other States by stating that they ‘are limited to “navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms”’ (italics added). 29 See Proelss on Art. 56 MN 28. 30 Nordquist/Nandan/Rosenne (note 2), 564; Rothwell/Stephens (note 5), 98.

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Part V. Exclusive economic zone

‘[t]he delineation of the course for the laying of such pipelines on the continental shelf is subject to the consent of the coastal State.’31 Further limitations arise in the context of navigation, in particular of fishing vessels, taking into account that the management of the living resources of the EEZ is subject to the sovereign rights of the coastal State. 32 While foreign fishing vessels must be regarded as being generally entitled to freely navigate through the EEZ, it is clear that the coastal State is at the same time authorized to observe that these vessels do not undermine its fisheries management measures. This conclusion is backed by Art. 73 (1), stating that ‘[t]he 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.’

Having regard to navigation of ships other than fishing vessels, limitations to the pertinent freedom result from the jurisdiction of the coastal State concerning the construction and use of artificial islands, installations and structures in terms of Art. 56 (1)(b)(i). The pertinent jurisdiction of the coastal State is further developed by Art. 60 (6), according to which ‘[a]ll ships must respect these safety zones and shall comply with generally accepted international standards regarding navigation in the vicinity of artificial islands, installations, structures and safety zones.’ 13 The International Tribunal for the Law of the Sea (ITLOS) has accepted in its case-law that fisheries related activities such as offshore bunkering of fishing vessels as well as processing, transshipping and transporting of fish that has not been previously landed at a port are covered by the sovereign rights of the coastal State in terms of Art. 56 (1)(a). 33 In contrast, while transport and on-board processing of catch that has previously been landed at port (i. e., prior to the entry into the EEZ) is indeed covered by Art. 58 (1), the jurisprudence of the ITLOS indicates that the coastal State even then has the right to require notification of the entry of the fishing vessel concerned into the EEZ, or to inspect catches and secure stowing of fishing gear during transit, in order to safeguard adherence to its fisheries management measures.34 Indeed, in such situations there is a sufficiently direct connection to the sovereign rights of the coastal State, since its management measures may otherwise be too easy to circumvent. Moreover, in its advisory opinion submitted on the request of the Sub-Regional Fisheries Commission, the ITLOS took the view that Art. 62 (4) ‘imposes an obligation on States to ensure that their nationals engaged in fishing activities within the exclusive economic zone of a coastal State comply with the conservation measures and with the other terms and conditions established in its laws and regulations.’ 35

It further limited freedom of navigation specifically in relation to fishing vessels by concluding that it would follow ‘from article 58, paragraph 3, and article 62, paragraph 4, as well as from article 192, of the Convention that flag States are obliged to take the necessary measures to ensure that their nationals and vessels flying their flag are not engaged in IUU fishing activities.’36 This issue will be commented upon in the context of Art. 58 (3) (see infra, MN 24–27). It has been suggested that the coastal State would be entitled to enact 31

See also Churchill/Lowe (note 3), 174; for a detailed assessment see Englender on Art. 79 MN 23. Nordquist/Nandan/Rosenne (note 2), 565. 33 See Proelss on Art. 56 MN 11–12. 34 ITLOS, The ‘Monte Confurco’ (Seychelles v. France), Judgment of 18 December 2000, ITLOS Reports (2000), 86, para. 82. For further discussion see Valentin Schatz, Combating Illegal Fishing in the Exclusive Economic Zone – Flag State Obligations in the Context of the Primary Responsibility of the Coastal State, Goettingen Journal of International Law 7 (2015), pre-published version, 8–10, available at: http://www.gojil.eu/issues/ prepublished/schatz.pdf. 35 ITLOS, Request for an Advisory Opinion submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion of 2 April 2015, para. 123, available at: https://www.itlos.org/en/cases/list-of-cases/case-no21/. 36 Ibid., para. 124. 32

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14–15

Art. 58

legislation limiting freedom of navigation by merchant vessels in order to protect certain vulnerable marine areas such as coral reefs, seamounts etc. whose preservation is a necessary requirement for the healthy development of fish stocks,37 but arguably this conclusion does not sufficiently take into account the mandate allocated to the International Maritime Organization by Art. 211 (5) and (6)(a), which in light of Art. 194 (5) as well as the wording of Art. 211 (6)(a)38 also seems to cover the protection and preservation of vulnerable sea areas for the purpose of safeguarding stock development. As far as freedom of overflight is concerned, the Convention does not prescribe any 14 specific requirements to be observed by the flag States, taking into account that the rules of the air are part of a different sub-system of international law, namely the regime established on the basis of the 1944 Chicago Convention.39 This Convention distinguishes between the territories of the contracting parties, defined in Art. 2 as ‘the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection or mandate of such State’, and the high seas. Whereas aircraft over the high seas must, according to Art. 12, comply with the rules in force established under the Convention by the International Civil Aviation Organization (ICAO), States are entitled to depart from the international standards and recommended practices adopted by that organization if and to the extent to which aircraft are flying over their territories (cf. Art. 38). Against this background, one may ask whether the EEZ, which had not yet been accepted at the time of adoption of the Chicago Convention, ought to be considered as sovereign territory or high seas in the context of international air law. If one agrees with the reasoning of this author, according to which the legal status of the EEZ is characterized by the duality of the categories of territory and function, resulting in the conclusion that the EEZ is at the same time both high seas and a sui generis zone,40 the answer is not difficult to give: As the sui generis nature of the EEZ is inseparably linked to existence of exclusive sovereign rights and jurisdiction of the coastal State under Art. 56, this zone ought to be treated as high seas if and to the extent to which these rights and jurisdiction are not affected. Thus, all States are generally bound to observe the international standards and recommended practices adopted by the ICAO over the EEZ.41 This conclusion is further supported by Arts. 39 (3) and 54 of the Convention, requiring respectively aircraft exercising the right of transit passage, or archipelagic sealanes passage, to observe the ICAO rules.42 If and to the extent to which the sovereign rights and jurisdiction of the coastal State are 15 not directly affected, measures that aim at restricting the freedoms of navigation, overflight and laying of submarine pipelines and cables cannot generally be considered as being compatible with Art. 58 (1). This is particularly true with regard to the small number of coastal States that claim jurisdiction or rights over foreign pipelines and cables, or that make exercise of freedom of navigation generally dependent on prior authorization, or on observing domestic legal requirements that have been adopted unilaterally respectively. 43 For 37

Rothwell/Stephens (note 5), 98. This provision expressly refers to the ‘ecological conditions’ and the ‘protection of its resources’ of clearly defined areas in the EEZ. 39 Convention on International Civil Aviation of 7 December 1944, 15 UNTS 296. 40 See Proelss on Art. 55 MN 16–18. 41 See also ICAO, Study on United Nations Convention on the Law of the Sea – Implications, if any, for the Application of the Chicago Convention, its Annexes, and other International Air Law Instruments, ICAO Doc. C.WP/7777 (1984), reproduced in: Netherlands Institute for the Law of the Sea (ed.), International Organizations and the Law of the Sea Documentary Yearbook 3 (1987), 243, 257 (para. 11.12). 42 Churchill/Lowe (note 3), 173, who question whether the same result should apply in situations where the coastal State has built an airport on an artificial island in its EEZ (see ibid., 173 et seq.). It should be noted, though, that Art. 60 (8) is clearly based on the assumption that the status of artificial islands is not the same as that of sovereign territory. With the exception of safety zones that do not have a specific territorial status (see Proelss on Art. 60 MN 33), only sovereign territory is capable of ‘producing’ maritime zones under the international law of the sea. 43 See the compilation of relevant State practice collected by Sophia Kopela, The ‘Territorialisation’ of the Exclusive Economic Zone: Implications for Maritime Jurisdiction available at: https://www.dur.ac.uk/resources/ ibrn/conferences/sos/s_kopela_paper.pdf 38

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Art. 58

16–17

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example, the practice of Maldives that requires prior authorization for the entry of all foreign vessels in its EEZ44 clearly violates Art. 58 (1). Even if the jurisdiction of the coastal State concerning, say, the protection of the marine environment is affected, this jurisdiction must be implemented vis-a`-vis the freedoms mentioned in Art. 58 (1) in accordance with the relevant provisions of the Convention, taking into account that the term ‘jurisdiction’ ought to be considered as a proxy for the further development and substantiation of the respective subject matter by other provisions of the Convention.45 Thus, measures taken by the coastal State in its EEZ to prevent, reduce and control pollution from vessels (e. g. compulsory ship reporting systems etc.) are only in line with the Convention if they conform and give effect to the ‘generally accepted international rules and standards established through the competent international organization or general diplomatic conference’ (Art. 211 (5)). 46 State practice suggests that this conclusion is also valid with regard to vessels transporting ultra-hazardous materials such as elements of decommissioned nuclear reactors or nuclear waste. 47 In this respect, it does not seem to be without relevance with regard to the legal situation in the EEZ that Art. 23 accepts that foreign nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances are entitled to exercise the right of innocent passage through the territorial sea.48

3. ‘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’ Art. 58 (1) prescribes that all States enjoy other internationally lawful uses of the sea related to the freedoms of navigation, overflight and laying of submarine pipelines and cables, provided that they are compatible with the other provisions of the Convention. Since these uses of the sea must be related to the aforementioned freedoms, it is clear that States other than the coastal State are not entitled to use the EEZ of the coastal State for any other internationally lawful purpose. This is also demonstrated by the non-exhaustive (‘such as’) list of activities substantiating the other internationally lawful uses, which only takes into consideration uses that are ‘associated with the operation of ships, aircraft and submarine cables and pipelines’. That said, the fact remains that the wording of Art. 58 (1) does not clarify how closely related to the high seas freedoms the activity concerned has to be. In light of this, it is somewhat surprising that the element ‘other internationally lawful uses related to these freedoms’ has, with the exception of issues directly affecting the sovereign rights and jurisdiction of the coastal State in terms of Art. 56 (1), such as offshore bunkering of fishing vessels, so far not been the subject of decisions of international courts or tribunals. 17 Examples of internationally lawful uses of the sea related to the freedoms referred to by Art. 58 (1) most certainly include supporting and maintenance activities, but it is not possible here to present a comprehensive list of activities falling within the scope of this element. For example, following the decision of the ITLOS in the M/V ‘Virginia G’ Case,49 it is still not completely clear today whether offshore bunkering of merchant or other ships other than fishing vessels ought to be considered as an activity that is sufficiently closely related to freedom of navigation, or whether it falls within the scope of Art. 59. It is submitted that much will depend on whether the conduct concerned is considered by the actors involved, including the maritime and offshore industries, as an activity that is a regular, common or even necessary 16

44 See para. 14 of Maritime Zones of Maldives Act No. 6/96, available at: http://www.un.org/Depts/los/ LEGISLATIONANDTREATIES/PDFFILES/MDV_1996_Act.pdf. 45 See Proelss on Art. 56 MN 20. 46 See the table of contrary legislation provided by Kopela (note 43), 12. 47 Arguably, a different view can be taken in respect of ice-covered areas within the limits of the EEZ; see Franckx/Boone on Art. 234 MN 26–30. 48 Rothwell/Stephens (note 5), 99. 49 The M/V ‘Virginia G’ (note 28), para. 217.

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requirement for the exercise of the freedoms in terms of Art. 58 (1). A sufficiently close relationship between the activity concerned and the freedom of navigation, overflight and laying of submarine pipelines and cables thus presupposes that it depends on, or is inseparably linked to, one of these freedoms, e. g., because its autonomous execution would have to be qualified as pointless. This will not be the case if the conduct in question can just as well be undertaken independently of navigation, overflight and laying of pipelines and cables. In such a situation, the main focus would not be on the applicable freedoms of the high seas anymore. Rather, accepting that the activity is covered by Art. 58 (1) would ignore the separate existence of Art. 59, which presumes that situations exist where the Convention does not attribute rights or jurisdiction to the coastal State or to other States within the EEZ. Art. 58 (1) furthermore requires that the other uses of the sea are ‘internationally lawful’, i. e., 18 they must be in accordance with international law in general and the Convention in particular. In this respect, the most controversial issues under Art. 58 (1) are military activities and hydrographic surveying. While it seems difficult to exclude simple and continuous passage of military vessels through (or flight of military aircraft over) the EEZ from the scope of Art. 58 (1),50 the question remains whether naval exercises, manoeuvres and weapons testing can be considered as other internationally lawful uses of the sea related to freedoms of navigation and overflight. Opinions are split on the issue, taking into account that ‘there has been a growing body of practice indicating the willingness of coastal states to interfere with navigational rights and freedoms on grounds of maritime security, particularly since the September 2001 terrorist attacks in the United States.’51 Indeed, the peaceful purposes clauses codified in Arts. 88 and 301, whose wording echoes that of the general prohibition of the use of force codified in Art. 2 (4) UN Charter, would render any military activity in the EEZ illegal (and thus internationally unlawful) which would have to be regarded as a threat or use of force against the territorial integrity or political independence of the coastal State. However, the scope of these provisions arguably does not go beyond that of the prohibition of the use of force.52 It seems doubtful, however, that the limited approach taken by the Convention on the issue of military activities can be regarded as the final word, taking into account the growing body of State practice requiring prior consent for the performance of naval military exercises.53 In light of this, it may simply be impossible today to come to a conclusive answer on whether military activities reaching beyond mere passage or overflight are covered by Art. 58 (1). If this reasoning is agreed with, naval military manoeuvres and the like ought to be considered as falling within the scope of Art. 59, taking into account that the sovereign rights and jurisdiction of the coastal State in no case provide a sufficient legal basis for the regulation of the respective activities.54 While the operation of ocean data acquisition systems has been held by this author to be 19 a comparatively strong case for applying Art. 59,55 the situation is not so easy to assess with regard to hydrographic surveying. This term is not defined in the Convention, but used in Arts. 19 (2)(j) and 40. According to a publication of the UN Division of Ocean Affairs and the Law of the Sea, it ought to be understood as covering ‘[t]he science of measuring and depicting those parameters necessary to describe the precise nature and configuration of the sea-bed and coastal strip, its geographical relationship to the land-mass, and the characteristics and dynamics of the sea’.56 Other approaches emphasize the fact that the 50 See also Barbara Kwiatkowska, The 200 Mile Exclusive Economic Zone in the New Law of the Sea (1989), 203; Ivan Shearer, Military Activities in the Exclusive Economic Zone: The Case of Aerial Surveillance, Ocean Yearbook 17 (2003), 548, 557 et seq. 51 Rothwell/Stephens (note 5), 99 et seq. 52 Alexander Proelss, Peaceful Purposes, MPEPIL, paras. 12–17, available at http://www.mpepil.com; Rothwell/ Stephens (note 5), 100; Douglas Guilfoyle, The High Seas, in: Donald R. Rothwell et al. (eds.), The Oxford Handbook of the Law of the Sea (2015), 203, 211; see also Guilfoyle on Art. 88 MN 4–9; O’Brien on Art. 301 MN 6–8. 53 See the compilation of relevant State practice collected by Kopela (note 43), 4. 54 Proelss on Art. 56 MN 33. 55 Proelss on Art. 59 MN 4. 56 UN DOALOS, Baselines: An Examination of the Relevant Provisions of the United Nations Convention on the Law of the Sea, Appendix I: Consolidated Glossary of Technical Terms Used in the United Nations

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end product of a hydrographic survey is a nautical chart, 57 and that hydrographic surveying is thus undertaken to ‘obtain information for the making of navigational charts and for the safety of navigation’.58 If these attempts to give a definition are combined, it is difficult to deny that a direct connection exists between hydrographic surveying and navigation. Provided that the main objective of the surveying is really to enhance maritime safety and not to, say, prospect potential deposits of natural resources located on or underneath the seabed of the EEZ, the better view seems to be that hydrographic surveying should be considered as an internationally lawful use of the sea related to the freedom of navigation in terms of Art. 58 (1). That said, more than 15 States require prior consent for the performance of this kind of activity,59 a fact that casts a shadow of doubt over the strength of the conclusion drawn here.

4. ‘compatible with the other provisions of this Convention’ 20

According to Art. 58 (1), the other internationally lawful uses of the sea related to the freedoms of navigation, overflight and laying of submarine pipelines and cables must be exercised in a manner ‘compatible with the other provisions of this Convention’. That this element can systematically only be understood to refer to the other uses, and not to the aforementioned freedoms is demonstrated by the fact that the wording of Art. 58 (1) clarifies that the freedoms for their part can only be enjoyed ‘subject to the relevant provisions of this Convention’. However, as the other uses of the sea related to the freedoms must, again, be ‘internationally lawful’, the final element of Art. 58 (1) is arguably superfluous, taking into account that a conduct not compatible with the other provisions of the Convention cannot be held to be internationally lawful.

5. ‘Articles 88 to 115 and other pertinent rules of international law apply to the exclusive economic zone in so far as they are not incompatible with this Part’ 21

Art. 58 (2) renders applicable Arts. 88 to 115, whose main focus is on shipping and flag State jurisdiction, and other pertinent rules of international law in the EEZ, but only if and to the extent to which they are not incompatible with Part V of the Convention. It further develops the freedom of navigation referred to in Art. 58 (1) and results in the spatial scope of, e. g., the duties of the flag State codified in Art. 94,60 as well as the rules and principles concerning the repression of piracy and other maritime crimes, including certain interdiction rights and the right to hot pursuit, being extended to the EEZ. Thus, irrespective of the exact content and nature of the resolutions of the UN Security Council concerning the situation off the coast of Somalia,61 no reason existed in light of Art. 58 (2) to separately make applicable the scope of these resolutions to the EEZ.62 Convention on the Law of the Sea (1989), 47, 56, available at: http://www.un.org/depts/los/doalos_publications/ publicationstexts/The%20Law%20of%20the%20Sea_Baselines.pdf. 57 IHO, Manual on Hydrography, Publication C-13 (2005), 7, available at: http://www.iho.int/iho_pubs/CB/C13/english/C-13_Chapter_1_and_contents.pdf. 58 J. Ashley Roach, Marine Data Collection: Methods and the Law, in: Myron H. Nordquist/Tommy T.B. Koh/ John N. Moore (eds.), Freedom of Seas, Passage Rights and the 1982 Law of the Sea Convention (2009), 171, 175. 59 A table of relevant coastal State legislation is provided by Kopela (note 43), 5. 60 See also SRFC Advisory Opinion (note 35), para. 115. The consequences resulting from Art. 58 (2) in conjunction with Art. 94 as to the duties of the flag State to combat illegal, unregulated and unreported fisheries will be briefly addressed below, see infra, MN 24–27. 61 For an analysis and further references see Alexander Proelss, Piracy and the Use of Force, in: Panos Koutrakos/Achilles Skordas (eds.), The Law and Practice at Sea (2014), 57–63. 62 See, e. g., SC Res.1838 of 7 October 2008, para. 7, deciding that States cooperating with the Transitional Federal Government of Somalia in the fight against piracy and armed robbery at sea off the coast of Somalia may, for an initial period of six months, ‘[e]nter 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 […]’.

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The reference made by Art. 58 (2) to other pertinent rules of international law must in 22 particular be understood as encompassing treaties concerning the repression of transnational organized crimes that further develop the rules and principles codified in Arts. 99– 110.63 In this respect, the SUA Convention64 and its 2005 Protocol,65 the United Nations Convention against Transnational Organized Crime and its Protocols,66 the United Nations Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others67 and the United Nations Convention against Illicit Trafficking in Narcotic Drugs and Psychotropic Substances68 deserve to be mentioned. Application of these treaties in the EEZ requires that their scope is not limited to the territory of their States parties, and that they are compatible with Arts. 88 to 115 as well as Part V of the Convention. In contrast to, e. g., Art. 210 (6), Art. 58 (2) does not prescribe that the content of the aforementioned agreements69 serves as minimum standard; the rights and duties therein are thus not made indirectly, i. e., via accession to the Convention, applicable to States that have not become parties to the agreements concerned.

6. ‘In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State’ Art. 58 (3) obligates all States to have due regard to the rights and duties of the coastal State 23 when exercising their freedoms in terms of Art. 58 (1). Together with Art. 56 (2), this provision prescribes a mutual due regard rule to be observed by the coastal State and other States when exercising their rights and duties in the EEZ.70 In doing so, Art. 58 (3) demonstrates that the freedoms of navigation, overflight and laying of submarine pipelines and cables as well as the internationally lawful uses related to these freedoms cannot be relied upon in the EEZ in an absolute manner. As stated in the context of Art. 56 (2), the co-existence of the rights and jurisdiction of the coastal State on the one hand and the continuing freedoms of other States on the other results in a considerable potential for conflict between the two groups of rights. Indeed, the mutual obligation to have due regard must be considered as being primarily of procedural nature, which generally requires the State relying on one of the aforementioned freedoms to undertake a balancing exercise with the colliding rights and jurisdiction of the coastal State.71 With regard to the question whether a general guideline for the lawful implementation of the balancing exercise can be identified, this author takes the view that the specific legal regime codified in Part V of the Convention is based on a shift of emphasis in favour of the coastal State which in case of conflict becomes manifest in the shape of a rebuttable presumption in favour of the coastal State.72 63 For an overview, see Alexander Proelss/Tobias Hofmann, Law of the Sea and Transnational Organized Crime, in: Pierre Hauck/Sven Peterke (eds.), International Law and Transnational Organised Crime (2016), 422– 447. 64 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation of 10 March 1988, 1678 UNTS 221. 65 Protocol of 14 October 2005 to the Convention for the Suppression of Unlawful Acts of Violence against the Safety of Maritime Navigation (SUA Convention), IMO Doc. LEG/CONF.15/21. 66 United Nations Convention against Transnational Organized Crime of 15 November 2000, 2225 UNTS 209; Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention Against Transnational Organized Crime of 15 November 2000, 2241 UNTS 507. 67 United Nations Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others of 21 March 1950, 96 UNTS 271. 68 United Nations Convention against Illicit Trafficking in Narcotic Drugs and Psychotropic Substances of 20 December 1988, 1582 UNTS 95. 69 It is important to note that none of the agreements mentioned in the text authorize States to unilaterally take enforcement action without at least asking the flag State for prior authorisation. 70 See Proelss on Art. 56 MN 24. 71 See Proelss on Art. 56 MN 25. 72 See Proelss on Art. 56 MN 26–31.

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7. ‘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.’ Art. 58 (3) contains a further obligation of States exercising the freedoms in terms of Art. 58 (1) to comply with the laws and regulations adopted by the coastal State on the basis of its sovereign rights and jurisdiction under Art. 56 (1) and other rules of international law. The rights and duties to be observed by all States in the EEZ thus not only arise from the Convention, but also from national laws and regulations.73 That said, taking into account the element ‘in so far as they are not incompatible with this Part’, if and to the extent to which the coastal States enact measures not covered by the scope of its sovereign rights and jurisdiction, other States are not bound by them. In this respect, the ITLOS held in the M/V ‘Saiga’ Case that Guinea violated Arts. 56 and 58 by prohibiting all activities in its EEZ which it decided to characterize as activities affecting its economic ‘public interest’ or entail ‘fiscal losses’ for it.74 25 The recent advisory opinion submitted by the ITLOS on the request of the Sub-Regional Fisheries Commission provides further guidance on the implementation of Art. 58 (3). The Tribunal held that ‘[i]t follows from article 58, paragraph 3, and article 62, paragraph 4, as well as from article 192, of the Convention that flag States are obliged to take the necessary measures to ensure that their nationals and vessels flying their flag are not engaged in IUU fishing activities.’75 Pursuant to Arts. 58 (3) and 62 (4), the flag State was considered as carrying a ‘responsibility to ensure’ compliance by vessels flying its flag with the laws and regulations concerning conservation measures adopted by the coastal State. This responsibility was regarded as becoming manifest in a duty of conduct, i. e., a due diligence obligation to take all necessary measures to ensure compliance and to prevent illegal, unreported and unregulated (IUU) fishing by fishing vessels flying its flag.76 The issue was further elaborated on in the separate opinion submitted by Judge PAIK, stating that: 24

‘Although “States” are direct addresses of the obligation to comply with the laws and regulations of the coastal State, private actors, be they natural or juridical persons, are the ultimate regulatory targets under this provision, as they are the main actors engaging in various activities in the foreign EEZ. Thus in order to perform its duties under article 58, paragraph 3, of the Convention, the State must ensure that those subject to its jurisdiction comply with the laws and regulations adopted by the coastal State in accordance with the provisions of the Convention. Through article 94, paragraph 1, of the Convention, those subject to jurisdiction of the State should include a ship flying its flag.’ 77

Consequently, ‘[t]aking article 94 and article 58, paragraph 3, of the Convention together, it can be stated that the flag State has an obligation to ensure that fishing vessels flying its flag comply with the laws and regulations adopted by the coastal State when fishing in its EEZ.’78 26 The advisory opinion rendered by the ITLOS gives rise to some questions.79 First, it should be noted that the wording of Art. 58 (3) requires that the State is actually exercising its rights and performing its duties under the Convention in the EEZ. In situations where a flag State is actively involved in violating fisheries management measures enacted by the

73 ITLOS, The M/V ‘Saiga’ (St. Vincent and the Grenadines v. Guinea), Merits, Judgment of 1 July 1999, ITLOS Reports (1999), 10, para. 121. 74 Ibid., para. 131. 75 SRFC Advisory Opinion (note 35), paras. 124, 134; consenting South China Sea Arbitration (note 28), para. 744. 76 Ibid., paras. 125–129. 77 Ibid., Separate Opinion of Judge Paik, para. 14. 78 Ibid., para. 16. 79 For a critical assessment see Valentin Schatz, Fishing for Interpretation – The ITLOS Advisory Opinion of April 2015 on Flag State Responsibility for Illegal Fishing in the EEZ, ODIL 47 (2016), 327, 329–333.

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coastal State, e. g. by allocating licenses to vessels flying its flag to fish in the EEZ of another State, it does certainly not comply with the ‘laws and regulations adopted by the coastal State in accordance with the provisions of this Convention’. At the same time, however, it seems difficult to argue that the flag State is exercising one of its rights, namely freedom of navigation, at all, as it claims for itself a right that has expressly been assigned to the coastal State. Such course of action goes beyond a mere violation of the coastal State’s laws and regulations, which is why it seems more convincing to argue that the flag State has directly violated Art. 56 (1).80 In other words, it is unnecessary to invoke Art. 58 (3) where the freedoms in terms of Art. 58 (1) are relied upon by a State other than the coastal State just in order to exercise powers that are in reality covered by the sovereign rights and jurisdiction of the coastal State under Art. 56 (1). The second issue refers to the fact that Art. 58 (3) does not expressly require the flag 27 State to adopt laws and regulations ensuring that vessels flying its flag that are allowed to fish in the EEZ of other States comply with their fisheries management measures. The wording of Art. 58 (3) may thus seem to suggest a lower level of flag State supervision than that provided for in more detailed provisions such as Arts. 94 (2), 139 (1) and 211 (2). 81 However, as Judge PAIK has explained, the ‘responsibility to ensure’ of flag States has been construed by the ITLOS by merging, or harmonizing respectively, several pertinent provisions of the Convention, namely Arts. 58 (3), 62 (4), 94 (1) and 192. Even though none of these provisions prescribes an express duty of the flag State to combat IUU fishing by ships flying its flag, it should be noted that Art. 62 (4) indeed requires nationals of other States fishing in the EEZ to ‘comply with the conservation measures and with the other terms and conditions established in the laws and regulations of the coastal State.’ From a critical perspective, reference could also be made to the fact that the addressees of Art. 58 (3) are States and not private ships or their crews.82 But if a vessel violates or ignores fisheries management measures enacted by a coastal State vis-a`-vis its EEZ, is it then reasonable to argue that this non-compliance should be irrelevant for the flag State of that vessel due to the fact that this State has not breached any provision of the Convention itself? Would such a line of argument not ignore that the Convention has to be applied and interpreted as a ‘living instrument’83 in light of modern challenges? And is it not mandatory to take into account Art. 62 (4) when determining the content and scope of Art. 58 (3)?84 It should be noted in this respect that the approach chosen by the ITLOS does not at all imply that the accepted rules of attribution of private conduct to States accepted under the rules of State responsibility85 are circumvented. The Tribunal has not decided that the flag State is directly responsible for the IUU fishing, but rather that it has to accept a duty of conduct to take all necessary measures to ensure compliance and to prevent IUU fishing by vessels flying its flag – a situation with regard to which the rules of attribution are not even relevant. Viewed from this perspective, it is submitted that the position taken by Judge PAIK, according to whom private actors are the ultimate regulatory targets of Art. 58 (3), deserves approval, and no reason exists why the ‘responsibility to ensure’ embodied in this provision should not extend to all areas covered by Art. 56 (1). It thus does not seem to be justified to argue that the ITLOS has essentially ignored, although for a just cause, the limited approach on which the Convention is based. 80 Consenting South China Sea Arbitration (note 28), para. 712, holding that an ‘assertion of jurisdiction [over fisheries] amounts to a breach of Article 56 of the Convention’. But see ibid., paras. 753, 757, referring to a violation of Art. 58 (3). 81 Schatz (note 79), 329 et seq. 82 Jianjun Gao, The ITLOS Advisory Opinion for the SRFC, Chinese JIL 14 (2015), 735, 750–753. 83 See the contributions in Jill Barrett/Richard Barnes (eds.), Law of the Sea: UNCLOS as a Living Treaty (2016). 84 See also South China Sea Arbitration (note 28), paras. 739–744. 85 GA, Responsibility of States for Internationally Wrongful Acts, GA Res. 56/83 of 28 January 2002, Annex (Arts. 8 and 11).

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Article 59 Basis for the resolution of conflicts regarding the attribution of rights and jurisdiction in the exclusive economic zone In cases where this Convention does not attribute rights or jurisdiction to the coastal State or to other States within the exclusive economic zone, and a conflict arises between the interests of the coastal State and any other State or States, the conflict 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. Bibliography: Gemma Andreone, The Exclusive Economic Zone, in: Donald R. Rothwell/Alex G. Oude Elferink/ Karen N. Scott/Tim Stephens (eds.), The Oxford Handbook of the Law of the Sea (2015), 159–179; Katharina Bork, Der Rechtsstatus von unbemannten ozeanographischen Messplattformen im internationalen Seerecht (2011); Edward D. Brown, The International Law of the Sea, vol. I (1994); Robin R. Churchill/Alan V. Lowe, Law of the Sea (3rd edn. 1999); Francesco Francioni, Equity in International Law, MPEPIL, available at: http:// www.mpepil.com; Douglas Guilfoyle, The High Seas, in: Donald R. Rothwell/Alex G. Oude Elferink/Karen N. Scott/Tim Stephens (eds.), The Oxford Handbook of the Law of the Sea (2015), 203–225; Sienho He, Sketching the Debate on Military Activities in the EEZ: An Editorial Comment, Chinese JIL 9 (2010), 1–7; Tobias Hofmann/Alexander Proelss, The Operation of Gliders under the International Law of the Sea, ODIL 46 (2015), 167–187; Natalie Klein, Dispute Settlement in the UN Convention on the Law of the Sea (2005); Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Alexander Proelss, The Law on the Exclusive Economic Zone in Perspective: Legal Status and Resolution of User Conflicts Revisited, Ocean Yearbook 26 (2012), 87–112; J. Ashley Roach, Marine Data Collection: MSR, Surveys, Operational Oceanography, Exploration and Exploitation, Revue Egyptienne de Droit International 64 (2008), 79–107; Donald R. Rothwell/Tim Stephens, The International Law of the Sea (2nd edn. 2016); Yoshifumi Tanaka, The International Law of the Sea (2nd edn. 2015); Florian H.T. Wegelein, Marine Scientific Research: The Operation and Status of Research Vessels and other Platforms in International Law (2005); Guifang Xue, Marine Scientific Research and Hydrographic Survey in the EEZs: Closing up the Legal Loopholes?, in: Myron H. Nordquist/Tommy T. B. Koh/John Norton Moore (eds.), Freedom of Seas, Passage Rights and the 1982 Law of the Sea Convention (2009), 205–225; Haiwen Zhang, Is It Safeguarding the Freedom of Navigation or Maritime Hegemony of the United States? Comments on Raul (Pete) Pedrozo’s Article on Military Activities in the EEZ, Chinese JIL 9 (2010), 31–47 Documents: GA, Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, GA Res. 25/2625 of 24 October 1970; IOC, Technical Report on Scoping of Operational Oceanography, UN Doc. IOC/INF-1291 (2012); IOC, Draft Guidelines for the Implementation of Resolution XX-6 of the IOC Assembly regarding the Deployment of Floats in the High Seas within the Framework of the Argo Program, UN Doc. IOC/ABE-LOS VIII/3 (2008); IOC, Revised Draft Convention on the Legal Status of Ocean Data, Acquisition Systems, Aids and Devices (ODAS) of 1993, UN Doc. IOC-XVII/Inf.1 (1993) Cases: ITLOS, The M/V ‘Saiga’ (St. Vincent and the Grenadines v. Guinea), Merits, Judgment of 1 July 1999, ITLOS Reports (1999), 10; ICJ, Case concerning the Frontier Dispute (Burkina Faso v. Mali), Judgment of 22 December 1986, ICJ Reports (1986), 554 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘In cases where this Convention does not attribute rights or jurisdiction to the coastal State or to other States within the exclusive economic zone’. . . . . . . . . . . . 2. ‘conflict arises between the interests of the coastal State and any other State or States’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘the conflict 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’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Basis for the resolution of conflicts

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Art. 59

I. Purpose and Function Art. 59 is dedicated to the ultimate objective of the Convention to settle inter-State 1 disputes peacefully. It addresses how conflicts of interests in the exclusive economic zone (EEZ) between the coastal State and other States should be resolved in situations where the Convention attributes rights or jurisdiction neither to the coastal State nor to other States, and is thus concerned with the issue of ‘residual rights’.1 As accurately stated by VUKAS, ‘Article 59 of the Convention itself is a confirmation of the awareness of States participating in UNCLOS III that the specific legal re´gime they have established has not attributed all possible rights and jurisdiction to the coastal States or to other States.’ 2 Indeed, it must be borne in mind that the EEZ is not part of the State territory but constitutes, as far as its functional status is concerned, a zone sui generis within which the coastal State is entitled to exercise exclusive and functionally limited sovereign rights and jurisdiction. 3 At the same time, Art. 58 (1) renders only some of the freedoms of the high seas referred to in Art. 87 (1) applicable to the EEZ in favour of other States. This legal situation made it necessary to include a provision in Part V which prescribes how to address situations where none of the groups of rights and freedoms codified in Arts. 56 (1) and 58 (1) are affected. However, Art. 59 does not provide precise answers,4 but rather requires that conflicts ought to be resolved on a case-by-case basis, depending on the individual circumstances and based on a balancing of the interests involved, with the aim to achieve an equitable solution. This implies that once an attempt to resolve a conflict by consensual means has failed, the dispute settlement provisions codified in Part XV ought to be activated. 5 Viewed from this perspective, Art. 59 could theoretically stimulate the jurisdictional power of international courts and tribunals, but this potential has so far not materialised in legal practice.

II. Historical Background The rule codified today in Art. 59 was not addressed in the deliberations of the UN Sea- 2 Bed Committee. It appeared for the first time in the course of the Third Session of UNCLOS III in an informal proposal submitted by the Chairman of the Contact Group of the Group of 77,6 and it is interesting to note that the wording of the draft provision concerned already corresponded to that of Art. 59 to a significant degree. A proposal submitted by the Evensen group in the same year was identical (with the sole exception of one minor drafting issue) to Art. 59.7 This proposal was included later on in the Informal Single Negotiating Text.8 Sporadic proposals to delete the provision,9 or to replace it with a 1 ‘Residual rights’ is not a legal term. Its origins, when used in the context of the regime of the EEZ, remain in the dark. 2 ITLOS, The M/V ‘Saiga’ (Saint Vincent and the Grenadines v. Guinea), Merits, Judgment of 1 July 1999, Separate Opinion of Judge Vukas, ITLOS Reports (1999), 10, para. 21. 3 See Proelss on Art. 55 MN 15. 4 Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 176. 5 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 569. 6 UNCLOS III, Exclusive Economic Zone: Revised Draft Prepared by the Chairman of the Contact Group of the Group of 77 on Matters before the Second Committee – Rev. 1 (1975), reproduced in: Renate Platzo¨ der (ed.), Third United Nations Conference on the Law of the Sea: Documents, vol. IV (1983), 205, 207 (para. 8). 7 UNCLOS III, The Economic Zone (1975), reproduced in: Renate Platzo ¨ der (ed.), Third United Nations Conference on the Law of the Sea: Documents, vol. XI (1987), 481, 482 (Art. 3 (2)). 8 UNCLOS III, Informal Single Negotiating Text, Part II, UN Doc. A/CONF.62/WP.8/PART II (1975), OR IV, 152, 159 (Art. 47 (3)). 9 UNCLOS III, Singapore: Articles 45–60 (ISNT II) (1976), reproduced in Platzo ¨ der (note 6), 290, 291 (Art. 47); UNCLOS III, Informal Suggestion by Uruguay, UN Doc. C.2/Informal Meeting/16 (1978), reproduced in: Renate Platzo¨der (ed.), Third United Nations Conference on the Law of the Sea: Documents, vol. V (1984), 22 (Art. 59).

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provision referring to the duty to resolve disputes in accordance with the compulsory dispute settlement procedures provided in the future Convention,10 remained unsuccessful. It was apparently felt by the clear majority of States that a provision addressing the resolution of conflicts between the coastal State and other States in situations where today’s Arts. 56 and 58 are not applicable was necessary. The provision drafted by the Evensen Group was correspondingly included in the Revised Single Negotiating Text11 and the Informal Composite Negotiating Text.12

III. Elements 1. ‘In cases where this Convention does not attribute rights or jurisdiction to the coastal State or to other States within the exclusive economic zone’ Art. 59 is only applicable in situations where the Convention does not attribute rights or jurisdiction to the coastal state or to other States within the EEZ. This element is closely related (but not limited) to Arts. 56 (1) and 58 (1), whose purpose it is to prescribe the rights and jurisdiction of the coastal State and to other States. Even though Art. 58 (1) does not speak of ‘rights or jurisdiction’ but of ‘freedoms’, Art. 58 (3) (referring to ‘rights’ and ‘duties’) clarifies that the difference is arguably one of editing rather than of substance. Art. 59 is thus best be understood in terms of a backup clause. 4 Taking into account the breadth of the concepts codified in Arts. 56 (1) and 58 (1), generally speaking there does not seem to be much room left for applying Art. 59. That said, it should be noted that existing controversies surrounding the scope of activities mentioned in these provisions automatically affect the application of Art. 59. This is particularly true in respect of military manoeuvres conducted in the EEZ, which are considered as navigation and overflight, or uses of the sea related to these freedoms by some States, in particular the US,13 but held to fall within the scope of Art. 59 by others.14 One example that seems to have found general recognition as being covered by Art. 59 is the protection and conservation of archaeological and historical objects found within the EEZ beyond the contiguous zone; 15 a second one is the operation of ocean data acquisition systems (ODAS). It has correctly been held that the deployment of these devices is not ‘marine scientific research’ (MSR) in terms of Art. 56 (1)(b)(ii) and thus not subject to the jurisdiction of the coastal State. 16 The reason is that the activity concerned neither aims at verifying or falsifying yet unresolved phenomena, nor is it conducted in order to explain such phenomena, or even in order to explain the 3

10 UNCLOS III, Group of Land-Locked and Geographically Disadvantaged States: Articles 44–47 (RSNT II) (1976), reproduced in: Platzo¨der (note 6), 410, 411 (Art. 47). The Group resubmitted its proposal several times. 11 UNCLOS III, Revised Single Negotiating Text, Part II, UN Doc. A/CONF.62/WP.8/REV.1/PART II (1976), OR V, 151, 161 (Art. 47). 12 UNCLOS III, Informal Composite Negotiating Text, UN Doc. A/CONF.62/WP.10 (1977), OR VIII, 1, 13 (Art. 59). 13 Proelss on Art. 58 MN 18. 14 See Sienho He, Sketching the Debate on Military Activities in the EEZ: An Editorial Comment, Chinese JIL 9 (2010), 1, 3 et seq.; but see Douglas Guilfoyle, The High Seas, in: Donald R. Rothwell et al. (eds.), The Oxford Handbook of the Law of the Sea (2015), 203, 214. 15 Yoshifumi Tanaka, The International Law of the Sea (2nd edn. 2015), 136. 16 Edward D. Brown, The International Law of the Sea, vol. I (1994), 239 et seq.; Florian H.T. Wegelein, Marine Scientific Research: The Operation and Status of Research Vessels and other Platforms in International Law (2005), 181; Katharina Bork, Der Rechtsstatus von unbemannten ozeanographischen Messplattformen im internationalen Seerecht (2011), 105; see also Tobias Hofmann/Alexander Proelss, The Operation of Gliders under the International Law of the Sea, ODIL 46 (2015), 167, 172–173; contra (with regard to military marine data collection) Haiwen Zhang, Is It Safeguarding the Freedom of Navigation or Maritime Hegemony of the United States? Comments on Raul (Pete) Pedrozo’s Article on Military Activities in the EEZ, Chinese JIL 9 (2010), 31, 36; Guifang Xue, Marine Scientific Research and Hydrographic Survey in the EEZs: Closing up the Legal Loopholes?, in: Myron H. Nordquist/Tommy T. B. Koh/John Norton Moore (eds.), Freedom of Seas, Passage Rights and the 1982 Law of the Sea Convention (2009), 205–225.

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Art. 59

relationship between these and other phenomena. 17 Against this background, the operation of ODAS constitutes ‘operational oceanography’, a term not used in the Convention, which has been defined by one authority as ‘the routine collection of ocean observations, such as temperature, pressure, current, salinity and the wind, in all maritime zones’. 18 It is submitted that this activity is a prime example for the situation described by the first element of Art. 59.19

2. ‘conflict arises between the interests of the coastal State and any other State or States’ The second element of Art. 59 clarifies that this provision is only applicable to conflicts 5 arising between the interests of the coastal State and those of another State or group of States (‘inter-State conflicts’). In contrast, it is not concerned with conflicting uses of the EEZ that are exclusively covered by the sovereign rights and jurisdiction of the coastal State. Such ‘intraState conflicts’ (fisheries v. environmental protection; MSR v. environmental protection) are not directly regulated by the Convention,20 but must, in accordance with its objectives, be resolved by means of domestic law. Usage of the term ‘conflict’ in Art. 59 suggests that the provision covers situations which have not yet reached the stage of a dispute in terms of Part XV,21 but this should not lead oneself to ignore that the difference is arguably one of duration and involvement of a third actor rather than of quality.

3. ‘the conflict 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’ The criteria mentioned in Art. 59 that should govern the resolution of conflicts, or the 6 settlement of disputes respectively, have adequately been described by recognized authorities as being ‘elusive’22 and lacking ‘normative content’.23 Indeed, it seems difficult to derive clearly foreseeable parameters from the broad wording of the provision. It should be noted, though, that the concept of equity expressly referred to by Art. 59 as the ‘basis’ for the resolution of conflicts (‘equity infra legem’)24 is often used for the very sake of making it possible to infuse elements of reasonableness and ‘individualized justice’, and to adapt the applicable law to the specific circumstances of the case.25 The elements of ‘equity’ and ‘all relevant circumstances’ are thus inseparably linked,26 and the exercise required by Art. 59 is inevitably a matter for case-by-case assessment, which is why there can be no numerus clausus of relevant circumstances and interests involved. Art. 59 prescribes that the conflict ‘should’ be resolved by reference to the criteria 7 mentioned in the provision. Taking into account that this term, in contrast to ‘shall’, is 17

IOC, Technical Report on Scoping of Operational Oceanography, UN Doc. IOC/INF-1291 (2012), 3. J. Ashley Roach, Marine Data Collection: MSR, Surveys, Operational Oceanography, Exploration and Exploitation, Revue Egyptienne de Droit International 64 (2008), 79, 82. 19 The situation might have to be assessed differently with regard to hydrographic surveying, see Proelss on Art. 58 MN 19. 20 But see, e. g., Art. 240 (d) requiring that ‘marine scientific research shall be conducted in compliance with all relevant regulations adopted in conformity with this Convention including those for the protection and preservation of the marine environment.’ 21 Nordquist/Nandan/Rosenne (note 5), 569. 22 Churchill/Lowe (note 4), 461. 23 Natalie Klein, Dispute Settlement in the UN Convention on the Law of the Sea (2005), 140. 24 ICJ, Case Concerning the Frontier Dispute (Burkina Faso v. Mali), Judgment of 22 December 1986, ICJ Reports (1986), 554, 567 et seq. (para. 28). 25 Francesco Francioni, Equity in International Law, MPEPIL, para. 7, available at: http://www.mpepil.com. 26 See also Nordquist/Nandan/Rosenne (note 5), 569. 18

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Part V. Exclusive economic zone

often used in order to clarify that no binding legal obligations are established by a treaty provision, the question arises whether Art. 59 prescribes a hard law duty. Are the coastal State and other States thus bound at all to resolve their conflicts on the basis of equity and in the light of all the relevant circumstances? This question does not seem to have been addressed in the course of UNCLOS III, and it cannot be answered in the affirmative by simply pointing to the fact that the provision concerned is part of a legally binding agreement, as an international treaty may well establish both binding and soft law obligations. While it would go too far to deny Art. 59 any mandatory character, its normative claim is comparatively weak in light of the fact that the obligation to settle disputes peacefully is already recognized under general international law. 27 Moreover, it can be speculated that the drafting of Art. 59 in soft terms was chosen in light of the fact that the process of conflict resolution described in the provision is, as stated, characterized by its particularly flexible character, and that no alternative – and potentially less flexible – means of resolving conflicts that likewise put into effect the object and purpose of Art. 59 were intended to be precluded. For example, States are free to enter into multilateral agreements, or to adopt soft law guidelines, with the aim to govern the resolution of user conflicts in a more general way. In this respect, it has been held that the UNESCO Convention on the Protection of Underwater Cultural Heritage28 ought to be regarded as an agreement substantiating the rule codified in Art. 59,29 and the same could arguably be said in relation to the Draft Guidelines regarding the Deployment of Floats in the High Seas within the Framework of the Argo Program.30 Finally, assuming that in a given situation all attempts to resolve an existing conflict by consensual means have failed, and the States concerned then agree to settle their differences by way of recourse of the compulsory dispute settlement system codified in Part XV (i. e., conflict resolution is converted into dispute settlement), a strict understanding of the obligation prescribed here could theoretically imply that the States concerned ought to be regarded as having violated Art. 59 – an absurd result which is avoided by the more flexible wording of this provision. 8 The case-by-case approach on which Art. 59 is based also extends to the actors whose interests should be taken into account. Depending on the specific situation, these may range from individual (coastal or other) States to the international community as a whole. The latter may be affected, e. g., in the context of ODAS, whose use has been described by the International Oceanographic Commission (IOC) of the UNESCO as being of ‘great significance for studying and exploration of the oceans for the benefit of all mankind’. 31 As far as the interests of the coastal State are concerned, if one agrees with the position that naval military manoeuvres ought to be considered as falling within the scope of Art. 59, 32 it seems fair to conclude that the security situation in the area concerned as well as the intentions of the State conducting the operations cannot be left unconsidered. At the same time, in light of the balancing process required by Art. 59 it would be difficult to defend the argument that foreign naval activities in the EEZ should always and automatically be held to be of lower weight compared to the security interests of the coastal State. 9 In light of the case-by-case assessment that is generally required by Art. 59, it is somewhat surprising that the elements codified in this provision, in particular with regard to the 27 See Arts. 1 (1), 2 No. 3 UN Charter; GA, Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, GA Res. 25/2625 of 24 October 1970, Annex. 28 UNESCO Convention on the Protection of Underwater Cultural Heritage of 2 November 2001, 2562 UNTS 1. 29 Tanaka (note 15), 136. 30 IOC, Draft Guidelines for the Implementation of Resolution XX-6 of the IOC Assembly regarding the Deployment of Floats in the High Seas within the Framework of the Argo Program, UN Doc. IOC/ABE-LOS VIII/3 (2008), Eighth Meeting of the Advisory Body of Experts on the Law of the Sea (IOC/ABE-LOS VIII), at 16 et seq. 31 See IOC, Revised Draft Convention on the Legal Status of Ocean Data, Acquisition Systems, Aids and Devices (ODAS) of 1993, UN Doc. IOC-XVII/Inf.1 (1993), para. 1 of the preamble. 32 See the reference provided in supra, note 14.

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Art. 59

principle of equity, have so far not been dealt with, and much less substantiated, to any significant degree by international courts and tribunals. It has been argued that the uncertain scope of some of the provisions of Part V, including Art. 59, has contributed to the reluctance of States to activate the compulsory dispute settlement procedures contained in the Convention.33 In this respect, the argument can be made that the way the rules on maritime delimitation codified in Arts. 74 and 83 have been applied and substantiated in international case-law (which has allocated great relevance to considerations of equity) 34 has resulted in a shift of power from coastal States to international courts and tribunals, taking into account that the outcome of a maritime delimitation dispute is often quite difficult to predict. This observation may have kept coastal States from submitting disputes that have arisen in situations where Art. 59 applies to an international court or tribunal. Notwithstanding the flexible approach on which Art. 59 is based, it is frequently 10 discussed whether the provision ought to be interpreted, depending on the circumstances of the individual case, as containing a presumption in favour of either the coastal State or the other States. While most authorities seem to suggest that the answer to this question should be no,35 it is submitted that the issue cannot be convincingly addressed without taking into account the legal status of the EEZ. In light of this, NORDQUIST ET AL. have argued that ‘where conflicts arise on issues not involving the exploration for and exploitation of resources, the formula [codified in Art. 59] would tend to favor the interests of other states or of the international community as a whole.’36 Based on the opinion that the EEZ is characterized by a dual legal status,37 this author has subscribed to this view by referring to the fact that the functional (‘sui generis’) status of the EEZ should generally only become relevant and effective in situations where the rights and jurisdiction of the coastal State prescribed in Art. 56 are involved in the matter. In contrast, taking into account that in terms of territory the EEZ is arguably to be considered as high seas, a consistent interpretation would suggest accepting a presumption in favour of the interest of other States or the international community.38 This understanding also helps to minimize the risk of attempts by the coastal State to extend its jurisdiction to the EEZ on a broader scale than permitted by Art. 56. In any case, it should be noted that the presumption advocated here must clearly be understood as being rebuttable, or as constituting no more than a rule of thumb. It can thus not be applied if the circumstances of the individual case require a different outcome of the balancing of the interests involved (e. g. where clear indications exist that ODAS are deployed by another State in order to pursue unilateral strategic aims).

33

Gemma Andreone, The Exclusive Economic Zone, in: Rothwell et al. (note 14), 159, 179. See Tanaka on Art. 74 MN 16 et seq. 35 Churchill/Lowe (note 4), 176, 461; Tanaka (note 15), 136. See also The M/V ‘Saiga’ (note 2), Separate Opinion of Judge Laing, 10, para. 55: ‘It has been said that rights concerning economic interests, communication, scientific research and seabed drilling have been attributed to the coastal State by Part V. However, notwithstanding the over-complete and ambitious nature of the institutional title “exclusive economic zone,” economic rights, on the whole, have not been attributed solely to that State. In view of what this Opinion reveals, the same holds true about the attribution of such other rights as those concerning communication and navigation.’ 36 Nordquist/Nandan/Rosenne (note 5), 569; consenting Donald R. Rothwell/Tim Stephens, The International Law of the Sea (2nd edn. 2016), 91. Reference to this statement has also been made by ITLOS: The M/V ‘Saiga’ (note 2),, Separate Opinion of Judge Vukas, 10, para. 16. 37 See Proelss on Art. 55 MN 16. 38 Alexander Proelss, The Law on the Exclusive Economic Zone in Perspective: Legal Status and Resolution of User Conflicts Revisited, Ocean Yearbook 26 (2012), 87, 89 et seq., 95. Note that the scope of Art. 59 is arguably limited, to the advantage of the coastal State, by Art. 60 (1)(c); see Proelss on Art. 60 MN 14. 34

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Art. 60

Part V. Exclusive economic zone

Article 60 Artificial islands, installations and structures in the exclusive economic zone 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) artificial 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 coastal State in the zone. 2. The coastal State shall have exclusive jurisdiction over such artificial islands, installations and structures, including jurisdiction with regard to customs, fiscal, health, safety and immigration laws and regulations. 3. Due notice must be given of the construction of such artificial islands, installations or structures, and permanent means for giving warning of their presence must be maintained. 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 organization. Such removal shall also have due regard to fishing, the protection of the marine environment and the rights and duties of other States. Appropriate publicity shall be given to the depth, position and dimensions of any installations or structures not entirely removed. 4. The coastal State may, where necessary, establish reasonable safety zones around such artificial islands, installations and structures in which it may take appropriate measures to ensure the safety both of navigation and of the artificial islands, installations and structures. 5. The breadth of the safety zones shall be determined by the coastal State, taking into account applicable international standards. Such zones shall be designed to ensure that they are reasonably related to the nature and function of the artificial islands, installations or structures, and shall not exceed a distance of 500 metres around them, measured from each point of their outer edge, except as authorized by generally accepted international standards or as recommended by the competent international organization. Due notice shall be given of the extent of safety zones. 6. All ships must respect these safety zones and shall comply with generally accepted international standards regarding navigation in the vicinity of artificial islands, installations, structures and safety zones. 7. Artificial islands, installations and structures and the safety zones around them may not be established where interference may be caused to the use of recognized sea lanes essential to international navigation. 8. Artificial islands, installations and structures do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf. Bibliography: Derek W. Bowett, The Legal Regime of Islands in International Law (1979); Edward D. Brown, The Significance of a Possible EC EEZ for the Law Relating to Artificial Islands, Installations, and Structures, and to Cables and Pipelines, in the Exclusive Economic Zone, ODIL 23 (1992), 115–144; Robin R. Churchill/A. Vaughan Lowe, Law of the Sea (3rd edn. 1999); Alex G. Oude Elferink, Artificial Islands, Installations and Structures, MPEPIL, available at http://www.mpepil.com; Uwe Jenisch, Offshore-Windenergieanlagen im Seerecht, Natur und Recht 19 (1997), 373–381; Sophia Kopela, The ‘Territorialisation’ of the Exclusive Economic Zone: Implications for Maritime Jurisdiction, available at: https://www.dur.ac.uk/resources/ibru/conferences/sos/s_kopela_paper.pdf; Rainer Lagoni, Ku¨nstliche Inseln und Anlagen im Meer, Jahrbuch fu¨r Internationales Recht 18 (1975), 241–282; Rainer Lagoni, Die Errichtung von Schutzgebieten in der ausschließlichen Wirtschaftszone aus vo¨ lkerrechtlicher Sicht, Natur und Recht 24 (2002), 121–133; Erik Jaap Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution (1998); Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the

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~a, The Exclusive Economic Zone (1989); Law of the Sea 1982: A Commentary, vol. II (1993); Francisco Orrego Vicun Nikos Papadakis, The International Legal Regime of Artificial Islands (1977); Alexander Proelss, Ausschließliche Wirtschaftszone (AWZ), in: Wolfgang Graf Vitzthum (ed.), Handbuch des Seerechts (2006), 222–264; Alexander Proelss, The Law on the Exclusive Economic Zone in Perspective: Legal Status and Resolution of User Conflicts Revisited, Ocean Yearbook 26 (2012), 87–121; Alexander Proelss/Chang Hong, Ocean Upwelling and International Law, ODIL 43 (2012), 371–385; Alexander Proelss/Tobias Hofmann, The Operation of Gliders under the International Law of the Sea, ODIL 46 (2015), 167–187; Donald R. Rothwell/Tim Stephens, The International Law of the Sea (2nd edn. 2016); Tullio Treves, Military Installations, Structures and Devices on the Seabed, AJIL 74 (1980), 808–857; Florian H. Th. Wegelein, Marine Scientific Research: The Operation and Status of Research Vessels and Other Platforms in International Law (2005) Documents: IMO, Guidelines and Standards for the Removal of Offshore Installations and Standards on the Continental Shelf and in the Exclusive Economic Zone, IMO Res. A.672(16) of 19 October 1989, Annex; IMO, Implications of the United Nations Convention on the Law of the Sea for the International Maritime Organization, IMO Doc. LEG/MISC.8 (2014); IMO, Safety Zones and Safety of Navigation around Offshore Installations and Structures, IMO Res. A671(16) of 19 October 1989; OSPAR, Decision on the Disposal of Disused Offshore Installations, Decision 98/3 (1998); UN, Impact of the Entry Into Force of the 1982 United Nations Convention on the Law of the Sea on Related Existing and Proposed Instruments and Programmes, UN Doc. A/52/491 (1997); UN DOALOS, Baselines: An Examination of the Relevant Provisions of the United Nations Convention on the Law of the Sea, Appendix I: Consolidated Glossary of Technical Terms Used in the United Nations Convention on the Law of the Sea (1989) Cases: CJEU, Case C-308/06, Judgment of 3 June 2008, Intertanko [2008] ECR I-4057; ITLOS, The ‘Arctic Sunrise’ (Netherlands v. Russia), Order of 22 November 2013, available at: http://www.itlos.org/fileadmin/itlos/ documents/cases/case_no.22/Order/C22_Ord_22_11_2013_orig_Eng.pdf; ITLOS, The M/V ‘Saiga’ (St. Vincent and the Grenadines v. Guinea), Merits, Judgment of 1 July 1999, ITLOS Reports (1999), 10; PCA, South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, available at: http://www.pcacases.com/pcadocs/ PH-CN%20-%2020160712%20-%20Award.pdf Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘exclusive right to construct and to authorize and regulate the construction, operation and use of’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘(a) artificial 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 coastal State in the zone’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘exclusive jurisdiction over such artificial islands, installations and structures, including jurisdiction with regard to customs, fiscal, health, safety and immigration laws and regulations’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. ‘Due notice must be given of the construction of such artificial islands, installations or structures, and permanent means for giving warning of their presence must be maintained’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. ‘installations or structures which are abandoned or disused shall be removed to ensure safety of navigation […]’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. ‘coastal State may, where necessary, establish reasonable safety zones around such artificial islands, installations and structures in which it may take appropriate measures to ensure the safety both of navigation and of the artificial islands, installations and structures’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. ‘The breadth of the safety zones shall be determined by the coastal State[…]’. . 8. ‘All ships must respect these safety zones and shall comply with generally accepted international standards regarding navigation in the vicinity of artificial islands, installations, structures and safety zones.’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9. ‘Artificial islands, installations and structures and the safety zones around them may not be established where interference may be caused to the use of recognized sea lanes essential to international navigation.’ . . . . . . . . . . . . . . . . . . . . . . 10. ‘Artificial islands, installations and structures do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf.’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Proelss

1 3 8 8

9 16 18 20

24 26 29 31

33

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1–3

Part V. Exclusive economic zone

I. Purpose and Function Art. 60 deals with artificial islands, installations and structures in the EEZ. Its first two paragraphs constitute ‘relevant provisions’ in terms of Art. 56 (1)(b). They further develop the pertinent jurisdiction of the coastal State by establishing the exclusive right to construct and to authorize and regulate the construction, operation and use of the structures concerned, and by clarifying that the coastal State is also entitled to exercise exclusive jurisdiction over such artificial islands. Art. 60 (3) prescribes the duty of the coastal State to give due notice of the construction of artificial islands, installations and structures, and to maintain permanent means for giving warning of their presence. The further phrases of the third paragraph then address the general requirement to fully or partly remove abandoned or disused structures. Art. 60 (4)-(6) deals with the right of the coastal State to establish reasonable safety zones around the artificial islands, installations and structures as well as the consequences resulting from such conduct. Finally, Art. 60 (7) limits the right to establish the structures concerned by reference to recognized sea lanes essential to international navigation, and Art. 60 (8) is concerned with their legal status. 2 Art. 60 is not the only provision contained in the Convention that addresses the issue of jurisdiction over artificial islands, installations and structures in the EEZ. It is logically and, in light of Art. 56 (3), structurally linked to Art. 80, according to which ‘Article 60 applies mutatis mutandis to artificial islands, installations and structures on the continental shelf.’ Other relevant provisions include Arts. 194 (3)(c) and (d), 208 (1) and 258–262. In this respect, the jurisdiction of the coastal State in terms of Art. 56 (1)(b)(i) overlaps with that under Art. 56 (1)(b)(ii) and (iii), referring to marine scientific research and the protection and preservation of the marine environment. The subject matter regulated by Art. 60 demonstrates that while the sui generis nature of the EEZ results first and foremost from the allocation of functional sovereign rights and jurisdiction to the coastal State, 1 these powers are also characterized by their territorial imprint, taking into account that it is possible for the coastal State to reserve large areas of its EEZ for the construction of artificial islands, installations and structures, which may even grow larger in light of the right to establish safety zones around them. Viewed from this perspective, the conclusion drawn by one authority according to whom the EEZ ought to be considered ‘as a zone within which the coastal State is entitled to exercise limited spatial jurisdiction’, 2 cannot be completely rejected. 1

II. Historical Background 3

Art. 60 is based on Art. 5 (2)-(7) of the 1958 Geneva Convention on the Continental Shelf,3 which addresses the coastal State’s right to ‘construct and maintain or operate on the continental shelf installations and other devices necessary for its exploration and the exploitation of its natural resources, and to establish safety zones around such installations and devices and to take in those zones measures necessary for their protection.’ 4

Prior to the submission of the first proposals concerning acceptance of the regime of the exclusive economic zone (EEZ), at the Sea-Bed Committee in 1971 Belgium suggested that the future work of Sub-Committee II should, inter alia, focus on the issue of jurisdiction over artificial islands, or artificial installations on the high seas. It argued that under the relevant provisions of the 1958 Geneva Convention, 1

See Proelss on Art. 55 MN 16. Yoshifumi Tanaka, The International Law of the Sea (2nd edn. 2015), 132. 3 Convention on the Continental Shelf of 29 April 1958, 499 UNTS 311. 4 Art. 5 (2) Convention on the Continental Shelf. 2

466

Proelss

Artificial islands, installations and structures in the exclusive economic zone

4–5

Art. 60

‘an installation which is not used for the exploration or exploitation of the natural resources of the continental shelf does not come under the jurisdiction of the coastal State. […] Thus there appears to be something of a judicial and juridical vacuum, at variance with international public order.’ 5

Later on it submitted a working paper with the aim to give a brief review of the problems arising in respect of the matter of jurisdiction over artificial islands or installations on the high seas not used for the exploration or exploitation of the natural resources of the continental shelf. This document was based on the assumption that ‘[t]he question of artificial islands raises two separate problems: firstly, that of the jurisdiction to which they are to be subject and, secondly, that of the right of states to erect such structures and the conditions which they must observe in doing so.’6

In order to address these problems, Belgium presented a proposal for a provision prescribing the rights of the coastal State in respect of the construction of artificial islands and immovable installations on the continental shelf serving purposes other than the exploration or exploitation of the natural resources.7 This text foresaw the designation of safety zones surrounding the objects concerned extending not more than 500m. Interestingly, Art. (d) of the proposal required the coastal State to publish its plans to construct such an installation and to take into consideration any observations submitted to it by other States. A proposal submitted by a group of Latin American States to the Sea-Bed Committee in 4 1973 linked the issue of jurisdiction of the coastal State concerning the emplacement and use of artificial installations not covered by the 1958 Geneva Convention on the Continental Shelf to the concept of the patrimonial sea.8 According to a US proposal, the coastal State was considered to have the exclusive right to authorize and regulate in the area what later became accepted as EEZ with regard to ‘the construction, operation and use of off-shore installations affecting its economic interests’. 9 The proposal contained a definition of the term ‘installations’,10 provided for the right to establish reasonable safety zones around them in which the coastal State would be entitled to ‘take appropriate measures to protect persons, property, and the marine environment’,11 and clarified that installations would not possess the status of islands.12 In the course of UNCLOS III, negotiating parties further expanded on the proposals 5 discussed in the Sea-Bed Committee. A text submitted by Nigeria essentially followed the language of the US proposal but for the first time limited the purpose of the safety zones to ‘ensure the safety both of its installations and of navigation.’13 Moreover, it contained a separate provision addressing the relationship between installations on the one hand and international navigation on the other, which read: 5 Sea-Bed Committee, Letter dated 23 April 1971 from the Representative of Belgium Addressed to the Secretary-General, UN Doc. A/AC.138/35 (1971), GAOR 26th Sess. Suppl. 21 (A/8421), 65 et seq. 6 Sea-Bed Committee, Belgium; Working Paper Concerning Artificial Islands and Installations, UN Doc. A/ AC.138/91 (1973), GAOR 28th Sess., Suppl. 21 (A/9021-II), 9. 7 Ibid., 11 (Art. (c)). 8 Sea-Bed Committee, Colombia, Mexico and Venezuela: Draft Articles on Treaty, UN Doc. A/AC.138/SC.II/ L.21 (1973), GAOR 28th Sess., Suppl. 21 (A/9021-III), 19, 20 (Art. 7); see also Sea-Bed Committee, Ecuador, Panama and Peru: Draft Articles for Inclusion in a Convention on the Law of the Sea, UN Doc. A/AC.138/SC.II/ L.27 (1973), GAOR 28th Sess., Suppl. 21 (A/9021-III), 30, 32 (Art. 12); Sea-Bed Committee, Argentina: Draft Articles, UN Doc. A/AC.138/SC.II/L.36 (1973), GAOR 28th Sess., Suppl. 21 (A/9021-III), 78, 81 (paras. 24–26), referring in para. 26 to the duty of the coastal State to remove disused installations. 9 Sea-Bed Committee, US: Draft Articles for a Chapter on the Rrights and Duties of States in the Coastal Seabed Economic Area, UN Doc. A/AC.138/SC.II/L.35 (1973), GAOR 28th Sess., Suppl. 21 (A/9021-III), 75 (Art. 1 (3)(a)). 10 Ibid., Art. 1 (5)(a). The definition read: ‘all off-shore facilities, installations or devices other than those which are mobile in their normal mode of operation at sea’. 11 Ibid., Art. 1 (4). According to the proposal, the breadth of the safety zone would be determined by the coastal State and should conform to international standards in existence or to be established. 12 Ibid., Art. 1 (5)(b). 13 UNCLOS III, Nigeria: Revised Draft Articles on the Exclusive Economic Zone, UN Doc. A/CONF.62/C.2/ L.21 (1974), OR III, 199 (Art. 1 (4)).

Proelss

467

Art. 60

6–7

Part V. Exclusive economic zone

‘A coastal State shall not erect or establish artificial islands and other installations, including safety zones around them, in such a manner as to interfere with the use by all States of recognized sea lanes and traffic separation schemes essential to international navigation.’ 14

Bringing together the main elements contained earlier proposals, a text submitted by the US applicable to the continental shelf and the EEZ substantiated the idea that the breadth of the safety zones (which were considered to serve the purpose of ensuring the safety both of the installations and of navigation) should conform to applicable international standards in existence or to be established by what is today the IMO.15 Where such standards were absent, the maximum distance for the extension of safety zones would be 500 m around the installations. The proposal also adopted the definition of the term ‘installation’ from the earlier proposal referred to above, and codified a duty of all States to respect the safety zones as well as a duty of the coastal State to entirely remove disused or abandoned installations. Implicitly relying on the proposal submitted by Nigeria, it made the establishment of installations and safety zones around them dependent on the requirement that no interference ought to be caused to the use of recognized sea lanes essential to international navigation. The US thereby tried to take into account its major interest to refuse as far as possible interferences with freedom of navigation – a crucial factor also in respect of the utilizability of its navy. 6 Based upon this proposal, the Evensen Group submitted a proposal in the course of the Third Session (1975) containing a provision that came close to what is codified today in Art. 60.16 In particular, it prescribed the different categories of devices similar to Art. 60 (1) and listed in an exemplary manner the fields as to which the coastal State is entitled to exercise jurisdiction (‘customs, fiscal, health, safety and immigration’). Art. 48 of the Informal Single Negotiating Text/Part II slightly rephrased and renumbered individual parts of the text submitted the Evensen Group, but did not include any substantial changes. 17 This provision was adopted almost verbatim in Art. 48 of the Revised Single Negotiating Text/Part II18 which, again, was repeated with only minor change in Art. 60 of the Informal Composite Negotiating Text (ICNT).19 Informal proposals submitted in the course of the Fourth and Fifth Sessions were not accepted. They were considered as either being superfluous, 20 or far too far-reaching respectively in light of the danger of a ‘territorialisation’ of the EEZ. 21 7 The final stage of negotiations witnessed considerable debate on two issues, namely the idea of abandoning the categorization of structures codified today in Art. 60 (1) in order to ensure that the coastal State is entitled to exercise jurisdiction over all installations and structures in its EEZ on the one hand,22 and the removal of abandoned or disused installations and structures 14

Ibid., Art. 3 (4). UNCLOS III, USA: Draft Articles for a Chapter on the Economic Zone and the Continental Shelf, UN Doc. A/CONF.62/C.2/L.47 (1974), OR III, 222, 225 (Art. 28). 16 UNCLOS III, The Economic Zone (1975, mimeo.) reproduced in: Renate Platzo ¨ der (ed.), Third United Nations Conference on the Law of the Sea: Documents, vol. IV (1983), 209, 212 (Art. 4). 17 UNCLOS III, Informal Single Negotiating Text, Part II, UN Doc. A/CONF.62/WP.8/PART II (1975), OR IV, 152, 159 (Art. 48). 18 UNCLOS III, Revised Single Negotiating Text, Part II, UN Doc. A/CONF.62/WP.8/REV.1/PART II (1976), OR V, 151, 161 (Art. 48). 19 UNCLOS III, Informal Composite Negotiating Text, UN Doc. A/CONF.62/WP.10 (1977), OR VIII, 1, 13 (Art. 60). 20 Cf. UNCLOS III, Peru: Article 48 (RSNT II), reproduced in: Platzo ¨ der (note 16), 434 (Art. 48 (9)). 21 Cf. the proposal submitted by India: UNCLOS III, India: Article 48 (ISNT II), reproduced in: Platzo ¨ der (note 16), 294 et seq., proposing to delete the provisions on safety zones and instead include a rule according to which ‘[t]he coastal State may designate an area of the exclusive economic zone, to be referred to as the designated area, in which the coastal State may prohibit or regulate the entry and passage of foreign ships […]’. According to the proposal, this area was not limited to the safety of installations. Rather, the coastal State was considered to be entitled to also take measures concerning the protection of the mineral or living resources, the protection of the marine environment and the prevention of smuggling. 22 UNCLOS III, Informal Suggestion by Peru, UN Doc. C.2/Informal Meeting/9 (1978, mimeo.) reproduced in: Renate Platzo¨der (ed.), Third United Nations Conference on the Law of the Sea: Documents, vol. V (1984), 13, 15 (Art. 60 (1)); UNCLOS III, Informal Suggestion by Brazil and Uruguay, UN Doc. C.2/Informal Meeting/11 (1978), reproduced in: ibid., 19 (Art. 60 (1)). 15

468

Proelss

Artificial islands, installations and structures in the exclusive economic zone

8

Art. 60

on the other. While the first issue was not further pursued, probably in light of the generally accepted emphasis of the coastal State’s sovereign rights on economic uses, the other one was. A memorandum submitted by the Oil Industry International Exploration and Production Forum (E&P Forum) argued that the provision contained in the ICNT, which prescribed an unconditional duty to ‘entirely remove’ any abandoned or disused installation or structure, should be substituted by a more flexible solution.23 Taking into account that ‘[r]emoval is expected to cost hundreds of millions of dollars and will ultimately be at the expense of the fiscal authorities (through tax deductions in respect of the reserve created to pay for removal) and the consumers’,24 the proposal militated in favor of clarifying that ‘removal will only be required “when the installations and structures represent a danger to navigation or to other legitimate uses of the sea or to the environment”.’25 While the revised versions of the ICNT did at first not include the suggested amendment, the negotiating parties continued to discuss the matter. Eventually, the UK submitted a text in the course of the Eleventh Session (1982) 26 that, following minor drafting adjustments, was included in today’s Art. 60 (3) instead of the former second sentence. It generally followed the line advocated by the E&P Forum, but arguably limited the scope of discretion of the coastal State concerning the decision when to remove a disused or abandoned installation or structure in a stronger fashion. France suggested by way of formal amendment to further substantiate when installations or structures would have to be entirely removed, or dismantled respectively.27 This amendment was, however, not pressed to a vote by France.28

III. Elements 1. ‘exclusive right to construct and to authorize and regulate the construction, operation and use of’ The first element of Art. 60 allocates an ‘exclusive right’ to the coastal State to construct and 8 to authorize and regulate the construction, operation and use of artificial islands, installations and structures. In contrast to Art. 60 (2), which refers to ‘exclusive jurisdiction’, Art. 60 (1) speaks of an ‘exclusive right’, but it is submitted that no difference in quality and scope of the pertinent powers of the coastal State results from the different terminology, also taking into account that Art. 56 (1)(b)(i) merely makes reference to the ‘jurisdiction’. However, it is crucial that the powers of the coastal State are exclusive in the sense that no other State is entitled to construct and to authorize and regulate the construction, operation and use of artificial islands, installations and structures in the EEZ without the coastal State’s consent.29 As the exclusive right of the coastal State not only covers the construction of these objects, but extends to the authorization and regulation of their construction, operation and use, Art. 60 (1) ought to be seen as the legal basis for the coastal State to enact laws and regulations prescribing the procedures for the granting of licenses to other actors, such as State-owned or private companies, that may then construct, operate and use the objects concerned. Furthermore, the jurisdiction to prescribe allocated to the coastal State covers, e. g., the enactment and imple23

UNCLOS III, Memorandum of E&P Forum (1980, mimeo.), reproduced in: Platzo¨der (note 16), 533 et seq. Ibid., 533 (para. 2). 25 Ibid., 534 (para. 4). 26 UNCLOS III, Informal Proposal by the United Kingdom, UN Doc. C.2/Informal Meeting/66 (1982, mimeo.) reproduced in: Platzo¨der (note 22), 72 (Art. 60 (3)). 27 UNCLOS III, France: Amendments, UN Doc. A/CONF.62/L.106 (1982), OR XVI, 221. 28 UNCLOS III, Report of the 175th Plenary Meeting, UN Doc. A/CONF.62/SR.175 (1982), OR XVI, 131 (para. 10). 29 Florian H. Th. Wegelein, Marine Scientific Research: The Operation and Status of Research Vessels and Other Platforms in International Law (2005), 150, has concluded that ‘exclusive’ in terms of Art. 60 (1) means that ‘the emplacing State may not regulate even if the coastal State has not taken any regulatory measures.’ See also PCA, South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, para. 1035, available at: http://www.pcacases.com/pcadocs/PH-CN%20-%2020160712%20-%20Award.pdf. 24

Proelss

469

Art. 60

9–10

Part V. Exclusive economic zone

mentation of building and mining laws as well as safety, environmental and labour standards, provided that these measures are directly applicable to the construction, operation and use of artificial islands, installations and structures. Art. 58 (2) in conjunction with Art. 92 (1) makes it impossible for the coastal State to extend its jurisdiction to supply vessels and other ships flying the flag of a State other than the coastal State calling at one of the said objects.

2. ‘(a) artificial 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 coastal State in the zone’ Art. 60 (1) distinguishes between three categories of objects, namely artificial islands, installations and structures. While the coastal State’s exclusive right to construct and to authorize and regulate the construction, operation and use of artificial islands is not bound to any specific purpose, installations and structures either must serve the purposes provided for in Art. 56 and other economic purposes (lit. b), or may interfere with the exercise of the rights of the coastal State in the zone (lit. c). Due to these differing requirements, it is mandatory to identify criteria that make it possible to assess the specific nature of the objects mentioned in Art. 60 (1). At the same time, the fact that Art. 56 (1)(b)(i) allocates jurisdiction to the coastal State with regard to the establishment and use of artificial islands, installations and structures, without further distinguishing between the three categories of objects, suggests that artificial islands, installations and structures also share certain features. 30 10 As far as the common features are concerned, it should first be noted that the Convention does not define any of these terms. However, an argumentum e contrario can be deduced from Art. 121 (1) which defines ‘island’ as ‘a naturally formed area of land, surrounded by water, which is above water at high tide’.31 One can conclude therefrom that all objects referred to by Art. 60 (1) must be man-made.32 Furthermore, artificial islands, installations and structures differ from ships in the permanence of their location, i. e., their immobility. 33 But does this necessarily result in excluding drilling vessels as well as semi-submersible dynamically positioned offshore oil drilling rigs such as the Deepwater Horizon, which sank in April 2010 following a catastrophic blowout in the Gulf of Mexico, from the scope of Art. 60? And how to deal with units that cannot be used for maritime navigation sensu stricto because they are not self-propelled? It is true that most definitions of the terms ‘ship’ and ‘vessel’ provided for by international treaty law, national legislation and legal doctrine suggest that it is only possible to speak of a ship if the unit is self-propelled. 34 That said, it is submitted that the situation ought to be assessed differently in the context of Art. 60, depending on whether the device concerned is primarily used for economic purposes other than navigation, or for navigation. Thus, if a device first and foremost is used for drilling activities and is only dragged (or even sails) to another location in order to continue drilling there, it arguably ought to be regarded as an installation in terms of Art. 60 (1). 9

30 A definition contained in a relevant UN DOALOS publication (UN DOALOS, Baselines: An Examination of the Relevant Provisions of the United Nations Convention on the Law of the Sea, Appendix I: Consolidated Glossary of Technical Terms Used in the United Nations Convention on the Law of the Sea (1989), 47, 56, available at: http://www.un.org/depts/los/doalos_publications/publicationstexts/The%20Law%20of%20the%20Sea_Baselines.pdf) does not distinguish between the three categories of objects. 31 Italics added. 32 UN DOALOS Baselines (note 30), 56; see also Rainer Lagoni, Ku ¨ nstliche Inseln und Anlagen im Meer, Jahrbuch fu¨r Internationales Recht 18 (1975), 241, 243 et seq.; Donald R. Rothwell/Tim Stephens, The International Law of the Sea (2nd edn. 2016), 95; Alex G. Oude Elferink, Artificial Islands, Installations and Structures, MPEPIL, para. 3, available at: http://www.mpepil.com. 33 See also the definition of the term ‘installations’ proposed by the USA in 1973 to the Sea-Bed Committee (note 10) as well as the Belgian proposal (note 7), referring to ‘artificial islands or immovable installations’. 34 Alexander Proelss/Tobias Hofmann, The Operation of Gliders under the International Law of the Sea, ODIL 46 (2015), 167, 174–177.

470

Proelss

Artificial islands, installations and structures in the exclusive economic zone

11–13

Art. 60

Similar to islands in terms of Art. 121, the objects covered by Art. 60 (1) must also be 11 completely surrounded by water in order to provide for their distinguishability from land reclamation measures. That Art. 5 (2) of the Geneva Convention on the Continental Shelf speaks of ‘installations and other devices’ has convincingly been taken as an indication that installations have to be of a certain size,35 and the same is presumably true for artificial islands and structures. In any event, this provision as well as Art. 209 (2) of the Convention, which refers to ‘vessels, installations, structures and other devices’, suggests that ‘device’ is a generic term that encompasses all categories of objects used in the marine environment. 36 Whether or not the objects mentioned in Art. 60 (1) all have to be above water at high 12 tide is subject for debate. The definition of ‘island’ codified in Art. 121 (1) clearly militates in favour of a positive response in respect of artificial islands,37 but as far as installations and structures are concerned, the negotiating history suggests that the answer should be no. 38 It has furthermore been proposed that artificial islands are constructed by filling natural matter (e. g. rock, gravel, sand), whereas installations and structures consist of man-made materials such as steel and concrete and are tied to the seafloor. 39 While Art. 60 (1) does not require to distinguish between installations and structures, one authority has suggested that installations are usually characterized by the fact that they can be moved from one site to another without losing its identity.40 As stated, the wording of Art. 60 (1) suggests that the coastal State’s exclusive rights are not 13 limited to any specific purpose as far as artificial islands are concerned (Art. 60 (1)(a)), but installations and structures must usually serve the purposes provided for in Art. 56 and other economic purposes (Art. 60 (1)(b)). Indeed, the direct connection to economic purposes necessary under Art. 60 (1)(b) echoes the wording of Art. 56 (1)(a) and thus reflects the functional nature of the coastal State’s rights in the EEZ. 41 The more it is surprising that artificial islands can be constructed for any purpose, also taking into account that these objects would normally be larger and therefore have the potential to interfere in a more significant way with the freedoms of other States in terms of Art. 58 (1).42 Nevertheless, the wording of Art. 60 (1)(a) makes it impossible to interpret the pertinent rights of the coastal State in a restrictive manner as only covering economic objectives, and it has been speculated by one authority that the reason for taking an economic perspective vis-a`-vis installations and structures was to prevent the coastal State from exercising exclusive rights and jurisdiction over objects used for military purposes (the negotiating history does not seem to provide any formal evidence for the reasons of the distinction made in Art. 60 (1)).43 In light of the aforementioned, the practice of some 20 States that have proclaimed jurisdiction over all types of installations and structures, 35 Tullio Treves, Military Installations, Structures and Devices on the Seabed, AJIL 74 (1980), 808, 841, arguing that the concept of ‘structure’ would not include relatively small objects such as some of those used for the tracing of submarines and navigational aids. 36 Edward D. Brown, The Significance of a Possible EC EEZ for the Law Relating to Artificial Islands, Installations, and Structures, and to Cables and Pipelines, in the Exclusive Economic Zone, ODIL 23 (1992), 115, 123; Alexander Proelss/Chang Hong, Ocean Upwelling and International Law, ODIL 43 (2012), 371, 379. 37 See South China Sea Arbitration (note 29), para. 1037: ‘China has elevated what was originally a reef platform that submerged at high tide into an island that is permanently exposed. Such an island is undoubtedly “artificial” for the purposes of Article 60.’ 38 The proposal submitted to the Sea-Bed Committee by Colombia, Mexico and Venezuela (note 8) spoke of ‘artificial islands and any kind of facilities on the surface of the sea, in the water column and on the sea-bed and subsoil of the patrimonial sea’. Furthermore, in 1974, nine States submitted a proposal referring to the ‘emplacement and use of artificial islands and other installations on the surface of the sea, in the waters and on the sea-bed and subsoil of the economic zone’; see UNCLOS III, Canada et al.: Working Paper, UN Doc. A/ CONF.62/L.4 (1974), OR III, 81, 83 (Art. 16). See also Nikos Papadakis, The International Legal Regime of Artificial Islands (1977), 33–35; Oude Elferink (note 32), para. 5. 39 Derek W. Bowett, The Legal Regime of Islands in International Law (1979), 115; but see Robin R. Churchill/ Alan V. Lowe, Law of the Sea (3rd edn. 1999), 168; Rothwell/Stephens (note 32), 95. 40 Lagoni (note 32), 244. 41 See: Proelss on Art. 55 MN 16; Proelss on Art. 56 MN 11. 42 Churchill/Lowe (note 39), 168. ~a, The Exclusive Economic Zone (1989), 74 et seq. 43 See ibid., relying on Francisco Orrego Vicun

Proelss

471

Art. 60

14–16

Part V. Exclusive economic zone

not only those constructed for economic purposes,44 is arguably difficult to be reconciled with the provisions of the Convention. Rather, as Art. 58 (1) does explicitly not refer to the ‘freedom to construct artificial islands and other installations permitted under international law’ in terms of Art. 87 (1)(d), the construction, operation and use of installations and structures serving non-economic (e. g. military) purposes should arguably be regarded as generally being covered by Art. 59.45 14 As far as States are concerned that have refrained from claiming an EEZ, the question arises whether they are entitled to exercise the exclusive right to construct, operate and use any of the objects relevant here on the basis of Art. 80. This provisions prescribes that ‘Article 60 applies mutatis mutandis to artificial islands, installations and structures on the continental shelf’. However, it should not be ignored that Art. 80 is part of Part VI which is dedicated (and limited) to the purpose of exploring the continental shelf and exploiting its natural resources (arg. e Art. 77 (1)). The better reasons thus seem to militate in favour of accepting that Art. 80 (which is only applicable mutatis mutandis) cannot be relied upon as separate legal basis for the construction and authorization, or the regulation of the construction, operation and use, of artificial islands, installations and structures serving purposes other than exploring the continental shelf and exploiting its natural resources. 46 15 Art. 60 (1)(c) is particularly difficult to understand. A literal reading of this provision would imply that the coastal State may construct and authorize, and regulate the construction, operation and use of, installations and structures serving purposes other than economic ones only where the objects concerned ‘may interfere with the exercise of the rights of the coastal State in the zone’. It has been proposed that this reading ‘will lead to a strange consequence’. 47 However, on closer examination it seems that the 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). Based on this understanding, Art. 60 (1)(c) limits the scope of Art. 59 and clearly results in preference being given to the position of the coastal State with regard to the construction and operation of installations and structures in general, provided that the coastal State does not rely on potential interferences with its rights in an abusive manner (cf. Art. 300).

3. ‘exclusive jurisdiction over such artificial islands, installations and structures, including jurisdiction with regard to customs, fiscal, health, safety and immigration laws and regulations’ 16

Art. 60 (2) allocates to the coastal State exclusive jurisdiction over artificial islands, installations and structures in terms of Art. 60 (1). Thus, it does not address the issue of construction and authorization of the objects concerned, but the prescription and enforcement48 of rules and regulations applicable on and to them. Even though an overlap 44 See the table of relevant State practice provided by Sophia Kopela, The ‘Territorialisation’ of the Exclusive Economic Zone: Implications for Maritime Jurisdiction, 3–14, available at: https://www.dur.ac.uk/resources/ibru/ conferences/sos/s_kopela_paper.pdf. Three States, namely Brazil, Cape Verde and Uruguay, already submitted corresponding declarations upon ratification of the Convention; see http://www.un.org/depts/los/convention_agreements/convention_declarations.htm. 45 Tanaka (note 2), 133. This conclusion reinforces the argument presented in the context of Art. 58 that military activities other than mere passage through the EEZ should generally be considered as being covered by Art. 59; see Proelss on Art. 58 MN 18. Note, however, that Art. 60 (1)(c) arguably limits the scope of Art. 59 (see infra, MN 14). 46 Proelss on Art. 56 MN 19; Churchill/Lowe (note 39), 168; but see the broader position taken by Maggio on Art. 80 MN 17; cf. also Maggio on Art. 80 MN 15 arguing that the scope of Art. 80 is ‘necessarily limited to such constructions that are attached to the seabed.’ 47 See also Tanaka (note 2), 132 (footnote 30). 48 That Art. 60 (2) also includes enforcement jurisdiction was emphasized by ITLOS, The ‘Arctic Sunrise’ (Netherlands v. Russia), Order of 22 November 2013, Dissenting Opinion of Judge Golitsyn, para. 23, available at: http://www.itlos.org/fileadmin/itlos/documents/cases/case_no.22/Order/C22_Ord_22_11_2013_orig_Eng.pdf.

472

Proelss

Artificial islands, installations and structures in the exclusive economic zone

17–18

Art. 60

exists between the first two paragraphs of Art. 60 in respect of the regulation of the operation and use of artificial islands, installations and structures, the main focus of Art. 60 (2) perfectly justifies reference being made to the concept of ‘jurisdiction’ instead of ‘exclusive right’. The ‘jurisdiction’ of the coastal State is furthermore ‘exclusive’ in the sense that no other State is entitled to prescribe and enforce rules and regulations applicable on and to artificial islands, installations and structures in the EEZ. The wording of Art. 60 (2) demonstrates (‘including’) that the list of areas of jurisdiction mentioned in this provision, which is following the models of Arts. 21 (2)(h) and 33,49 is not exhaustive. The coastal State is thus equally entitled to prescribe and enforce environmental regulations (including nature conservation standards),50 or to exercise criminal jurisdiction with regard to offenses committed on or against artificial islands, installations and structures. 51 In contrast, in light of the principle of flag State jurisdiction, the rules and regulations 17 enacted by the coastal State based on its exclusive jurisdiction in terms of Art. 60 (2) cannot lawfully be extended to supply ships or other vessels flying the flag of a State other than the coastal State which call at one of the objects referred to by this provision. Different to ports, neither artificial islands, installations, structures nor the safety zones established around them are part of the territory of the coastal State. This conclusion is backed by Art. 60 (8), according to which artificial islands, installations and structures do not possess the status of islands, and they are not eligible to generate a territorial sea.52 While Art. 60 (6) requires all ships to respect the safety zones established by the coastal State, it only demands compliance with the generally accepted international standards regarding navigation in the vicinity of artificial islands, installations, structures and safety zones (see infra, MN 29–30). The coastal State can thus not be considered as being entitled to unilaterally extend its domestic law (such as, e. g., labour standards) enacted on the basis of Art. 60 (2) to foreign-flagged ships. As far as the protection of the marine environment is concerned, it is submitted that also Art. 208 cannot be invoked by the coastal State in this respect, as this provision arguably only covers the prevention, reduction and control of pollution of the marine environment arising directly from artificial island, installations and structures. 53

4. ‘Due notice must be given of the construction of such artificial islands, installations or structures, and permanent means for giving warning of their presence must be maintained’ Art. 60 (3) requires the coastal State to give due notice of the construction of such artificial 18 islands, installations or structures, and to maintain permanent means for giving warning of their presence. The ‘due notice’ criterion only applies to the construction of said objects (and is thus related to Art. 60 (1)). It substantiates the more general ‘due regard’ clause codified in Art. 56 (2) with particular regard to navigation.54 By notifying other States of its intention to construct an artificial island, installation or structure, the coastal State ‘activates’ its exclusive right in terms of Art. 60 (1), thereby mobilizing the primacy of the coastal State’s legal position embodied in the concept of rebuttable presumption that has been identified in the context of Art. 56 as a general guideline for the avoidance of conflicts of uses. 55 Viewed from this perspective, Art. 60 (3) contains evidence that marine spatial planning in the EEZ ought to be 49 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 585. 50 Alexander Proelss, The Law on the Exclusive Economic Zone in Perspective: Legal Status and Resolution of User Conflicts Revisited, Ocean Yearbook 26 (2012), 87, 106; Rainer Lagoni, Die Errichtung von Schutzgebieten in der ausschließlichen Wirtschaftszone aus vo¨lkerrechtlicher Sicht, Natur und Recht 24 (2002), 121, 124. 51 Nordquist/Nandan/Rosenne (note 49), 585. 52 Note that sovereignty over the territorial sea is an extension of sovereignty over land territory, which is why only sovereign land territory can generate a territorial sea. See Barnes on Art. 2 MN 15. 53 Proelss (note 50), 106 et seq. 54 Rothwell/Stephens (note 32), 95. 55 See Proelss on Art. 56 MN 27, 31.

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considered as an activity that is generally in line with the international law of the sea. The ‘due notice’ criterion would usually require the competent agency to announce authorization of the construction of an object in terms of Art. 60 (1) by registering it in the official nautical charts and other official shipping publications of the coastal State. In 1989, the International Maritime Organization (IMO) adopted a document addressing, inter alia, safety of navigation around offshore installations and structures,56 which substantiates in its Annex the ‘due notice’ criterion by referring to the publication of notices to mariners (para. 1.1), radio-warnings (para. 4.2) and the need to show all permanent installations and structures on all appropriate navigational charts (para. 5). 19 The second element of Art. 60 (3), the duty to maintain permanent means for giving warning of the presence of artificial islands, installations or structures, must be interpreted for reasons of safety of navigation to extend to all phases of operation of these objects, ranging from their construction and use to their decommissioning. It would usually be implemented by way of navigational marks and lights. The coastal State must generally be held to be under a duty to provide for the functional capability of these devices. Taking into account their comparatively small size (supra, MN 10), navigational marks and lights will usually not qualify themselves as installations in terms of Art. 60 (1), also taking into account that their deployment is not directly connected to the economic purposes referred to in Art. 56 (1)(a), but to safety of shipping.57

5. ‘installations or structures which are abandoned or disused shall be removed to ensure safety of navigation […]’ The third element of Art. 60 (3) addresses the controversial issue of removal of abandoned or disused installations and structures. It should be noted from the outset that notwithstanding the use of the word ‘shall’ which suggests existence of a legally binding obligation, there is no absolute duty to remove abandoned or disused installations and structures under the Convention.58 This may be demonstrated by referring to the fact that the obligation to remove has been subjected to three caveats, namely (1) that the removal ought to be done in order to ensure safety of navigation, (2) by taking into account any generally accepted international standards, and (3) by having due regard to fishing, the protection of the marine environment and the rights and duties of other States. Thus, in areas of the EEZ that are not regularly used for purposes of navigation, in particular of other States, removal of abandoned or disused installations and structures is not mandatory. Moreover, the requirement to have due regard to fishing and the protection of the marine environment may arguably also be understood as making it legally possible to dump or leave wholly or partly in place an installation or structure in order to create an artificial reef, provided that the potential effects of the object on the marine environment are strictly minimized and, based on the current state of scientific knowledge, deemed acceptable in the specific case. The situation under the Convention as it stands today echoes the negotiating history of Art. 60, which experienced a shift from an unconditional duty to entirely remove towards a more flexible approach (see supra, MN 7). 21 Art. 60 (3) refers to ‘any generally accepted international standards established in this regard by the competent international organization’. When used in the singular form by the Convention, the term ‘competent international organization’ is generally held to refer to the 20

56 IMO, Safety Zones and Safety of Navigation around Offshore Installations and Structures, IMO Res. A671(16) of 19 October 1989. 57 Note that the Ordinance on Offshore Installations Seaward of the Limit of the German Territorial Sea of 23 January 1997 (available at: http://faolex.fao.org/docs/pdf/ger98801E.pdf), by which Germany has implemented, inter alia, Art. 60 of the Convention, does not consider navigational marks as installations in terms of the Ordinance. 58 Nordquist/Nandan/Rosenne (note 49), 585; Alexander Proelss, Ausschließliche Wirtschaftszone (AWZ), in: Wolfgang Graf Vitzthum (ed.), Handbuch des Seerechts (2006), 222, 254.

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22

Art. 60

IMO.59 Indeed, the IMO adopted a set of relevant guidelines and standards in 1989 (again refraining from establishing an absolute duty to remove abandoned or disused installations and structures).60 Taking into account that this document expressly refers to Art. 60, no reason exists why it should not be applied to installations and structures serving other purposes than the exploration of the continental shelf and the exploitation of its natural resources such as, e. g., offshore wind energy platforms. It is subject to debate, however, whether the content of the document concerned, which is, taken by itself, not legally binding, can be considered as being ‘generally accepted’ without further investigation. 61 Indeed, the practice of coastal States worldwide seems to militate against any presumption in favour of removing abandoned or disused installations and structures.62 It should be noted that the duty prescribed by Art. 60 (3) has been further developed on 22 the global and regional levels. In this respect, the 1996 London Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 63 which entered into force in 2006, considers ‘any abandonment or toppling at site of platforms or other man-made structures at sea, for the sole purpose of deliberate disposal’ as ‘dumping’, but these objects are, according to para. 1.4 of Annex 1 to the Protocol, among the wastes and other matter that may be considered for dumping by way of exception. On the regional level, Art. 1 (b) of Annex II to the OSPAR Convention64 even prescribes that the general prohibition of the dumping of wastes or other matter is not applicable to offshore installations. Having said that, in 1998 the parties to the OSPAR Convention adopted Decision 98/3, according to which ‘[t]he dumping, and the leaving wholly or partly in place, of disused offshore installations within the maritime area is prohibited.’65 While exceptions to this legally binding66 rule exist, these require the competent authority to satisfy itself that an assessment undertaken in accordance with Annex 2 of the OSPAR Convention shows that there are significant reasons why an alternative disposal mentioned below is preferable to reuse or recycling or final disposal on land.67 Furthermore, installations other than footings of steel installations placed in the maritime area before 9 February 1999 and certain concrete installations may only be dumped or left wholly or partly in place, ‘when exceptional and unforeseen circumstances resulting from structural damage or deterioration, or from some other cause presenting equivalent difficulties, can be demonstrated.’ 68 The parties to the OSPAR Convention have thus, in conformity with the 1989 IMO guidelines,69 significantly tightened the general requirements of Art. 60 (3).

59 UN, Impact of the Entry Into Force of the 1982 United Nations Convention on the Law of the Sea on Related Existing and Proposed Instruments and Programmes, UN Doc. A/52/491 (1997), para. 9; IMO, Implications of the United Nations Convention on the Law of the Sea for the International Maritime Organization, IMO Doc. LEG/MISC.8 (2014), 7. 60 IMO, Guidelines and Standards for the Removal of Offshore Installations and Standards on the Continental Shelf and in the Exclusive Economic Zone, IMO Res. A.672(16) of 19 October 1989, Annex. 61 According to the majority view in legal scholarship, it is not mandatory for a standard to be valid under customary international law in order to become ‘generally accepted’; see Erik Jaap Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution (1998), 172–178. 62 For references see Nordquist/Nandan/Rosenne (note 49), 586. 63 London Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter of 17 November 1996, 1046 UNTS 12011. 64 Convention for the Protection of the Marine Environment of the North-East Atlantic of 22 September 1992, 2354 UNTS 67. 65 OSPAR, Decision on the Disposal of Disused Offshore Installations, Decision 98/3 (1998), Ref. § B-5.6, para. 2, available at: http://www.ospar.org/convention/agreements?q=offshore+installations&t=32282&a=&s=. 66 Cf. Art. 13 (2) OSPAR Convention, according to which decisions adopted by the contracting parties have binding force. 67 Decision on the Disposal of Disused Offshore Installations (note 65), para. 3. 68 Ibid., para. 3 (c). 69 See IMO Guidelines (note 60), para. 1.4: ‘Nothing in these guidelines and standards is intended to preclude a coastal State from imposing more stringent removal requirements for existing or future installations or structures on its continental shelf or in its exclusive economic zone.’

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Art. 60 (3) prescribes that appropriate publicity shall be given to the depth, position and dimensions of any installations or structures not entirely removed. This has been further developed by the IMO as implying that notification of non-removal or partial removal should be forwarded to the IMO.70

6. ‘coastal State may, where necessary, establish reasonable safety zones around such artificial islands, installations and structures in which it may take appropriate measures to ensure the safety both of navigation and of the artificial islands, installations and structures’ Art. 60 (4) entitles the coastal State to establish reasonable safety zones around artificial islands, installations and structures ‘in which it may take appropriate measures to ensure the safety both of navigation and of the artificial islands, installations and structures.’ The wording (‘where necessary’) and telos of this provision suggest that safety zones may only be designated if and to the extent to which they serve the purpose of ensuring the safety of navigation and the objects concerned, but in light of the exclusive rights and jurisdiction of the coastal States over the devices mentioned in Art. 60 (1) it seems difficult to deny the coastal state a broad scope of discretion as to the necessity of the zones. While the term ‘reasonable’ is further developed by Art. 60 (5), ‘appropriate measures’ would arguably range from the designation of traffic lanes and use restrictions to complete prohibitions to enter the safety zones. Art. 60 (5) limits the coastal State’s discretion by requiring that the safety zones must be somehow related to the nature and function of the artificial islands, installations or structures. 25 The text of the provision is not unambiguous. In particular, it may be asked whether the coastal State is entitled to extend the measures adopted on the basis of its exclusive jurisdiction under Art. 60 (2) to the safety zones, or whether it may only take appropriate measures that are directly related to the safety of navigation and of the artificial islands, installations and structures. Would it be possible for the coastal State to, e. g., apply domestic standards for the protection of the marine environment to the safety zones established around its offshore installations? In this respect, it is submitted that the establishment of a zone in terms of Art. 60 (4) must arguably be induced by safety reasons, i. e., creating a safety zone for environmental or nature conservation purposes would not be in line with the Convention.71 But what if the coastal state has lawfully established a safety zone around one of its installations and then decides to make its domestic environmental protection standards applicable to that zone? In this respect, one authority has argued that in light of the coastal State’s obligation under Art. 208 (1), and given the close spatial and functional correlation between the installations and the safety zones surrounding them, the jurisdiction of the coastal State would include the right to apply its domestic environmental protection standards to the safety zone.72 In contrast, this author has reasoned that such a broad understanding would essentially ignore the functionally limited nature of the concept of safety zones that is embodied in the language of Art. 60 (4) and (5), and that it would go too far to apply all areas of jurisdiction of the coastal State, including the fields of customs, fiscal, health, safety and immigration, within these zones. 73 In the ‘Arctic Sunrise’ Case, Judges WOLFRUM and KELLY seem to have argued for a broad understanding by holding that 24

70

IMO Guidelines (note 60), para. 1.3. Uwe Jenisch, Offshore-Windenergieanlagen im Seerecht, Natur und Recht 19 (1997), 373, 378. See, e. g., Ordinance on Offshore Installations Seaward of the Limit of the German Territorial Sea (note 57), Art. 7, stating that safety zones may be established ‘if this is necessary to ensure the safety of shipping or of the installations.’ 72 Lagoni (note 50), 124. 73 Proelss (note 50), 107; see also Nordquist/Nandan/Rosenne (note 49), 586; Rothwell/Stephens (note 32), 95: ‘if directed to securing the safety of the features’. – Note that the ITLOS held in the M/V ‘Saiga’ Case that ‘[i]n the exclusive economic zone, the coastal State has jurisdiction to apply customs laws and regulations in respect of artificial islands, installations and structures (article 60, paragraph 2). In the view of the Tribunal, the Convention 71

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26–28

Art. 60

‘[t]he situation is different in respect of artificial islands and installations where the coastal State according to article 60, paragraph 2, of the Convention enjoys exclusive jurisdiction and in the safety zones around such artificial islands or installations. This includes legislative jurisdiction as well as the corresponding enforcement jurisdiction.’74

Similarly, Judge GOLITSYN stated in his dissenting opinion in general terms that ‘[r]eference in article 60, paragraph 4, to the right of the coastal State to take appropriate measures means that under the Convention the coastal State has the authority to take appropriate measures to ensure compliance with its regulations governing activities within safety zones, in other words to take the necessary enforcement measures.’75

It is not completely clear, however, whether these statements necessary imply that the coastal State is entitled to extend its entire jurisdiction applicable to its artificial islands, installations and structures to the safety zones, irrespective of whether the safety of navigation or of the features themselves is affected.

7. ‘The breadth of the safety zones shall be determined by the coastal State […]’ Art. 60 (5) allocates to the coastal State considerable discretion as to determining the 26 breadth of the safety zones, also taking into account that so far no ‘applicable international standards’ have been adopted within the IMO. The second sentence of Art. 60 (5) limits the coastal State’s discretion in both a substantial and spatial way: It requires that the extent as well as the implementation (supra, MN 23) of the safety zones must be somehow (‘reasonably’) related to the nature and function of the artificial islands, installations or structures. It furthermore establishes a maximum seaward extension of 500 m around the objects concerned, measured from each point of their outer edge, with the exception that generally accepted international standards, or a recommendation by the IMO, would authorize the coastal State to establish safety zones that may exceed 500 m. 76 Such authorization has so far not been adopted. Taking into account that offshore wind energy devices, in contrast to offshore oil and gas 27 installations, are usually build in the shape of clusters of dozens of individual installations, the coastal State will usually decide to establish one single safety zone surrounding the entire farm. However, such course of action can only be considered as lawful under the Convention if the distance between the individual wind turbines is no more than 500 m. It is thus not possible to circumvent the requirements of Art. 60 (5) by way of denomination and notification of a group of installations as offshore wind energy farm. The last element of Art. 60 (5) extends the applicability of the ‘due notice’ criterion codified 28 in Art. 60 (3) to the safety zones. The IMO has called upon the coastal State to require operators of offshore installations or structures to take adequate measures to prevent infringements of safety zones around these devices, and to make use in this respect of ‘effective lights and sound signals, racons, permanent visual look-out and radar watch, listening for and warning vessels on VHF channel 16 or other appropriate radio frequencies’.77

does not empower a coastal State to apply its customs laws in respect of any other parts of the exclusive economic zone not mentioned above’ (ITLOS, The M/V ‘Saiga’ (St. Vincent and the Grenadines v. Guinea), Merits, Judgment of 1 July 1999, ITLOS Reports (1999), 10, para. 127). 74 The ‘Arctic Sunrise’ Case (note 48), Joint Separate Opinion of Judges Wolfrum/Kelly, para. 12; but see ibid., para. 14: existence of enforcement functions enjoyed by the coastal State ‘in respect of the protection of the platform within the safety zone’ (italics added). 75 The ‘Arctic Sunrise’ Case (note 48), Dissenting Opinion of Judge Golitsyn, para. 25 (italics added). 76 See also IMO Implications of UNCLOS (note 59), 39. 77 IMO Safety Zones (note 56), Annex, para. 1.3.

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Art. 60

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8. ‘All ships must respect these safety zones and shall comply with generally accepted international standards regarding navigation in the vicinity of artificial islands, installations, structures and safety zones.’ Art. 60 (6) prescribes a duty of all ships to respect the safety zones established by the coastal State and to comply with generally accepted international standards regarding navigation in the vicinity of artificial islands, installations, structures and safety zones. Notwithstanding its wording, the obligation established by this provision is not directly addressed to ships. Rather, Art. 60 (6) must be read in terms of a duty of the flag State to ensure78 that ships flying its flag fulfill, when travelling through of EEZ of the coastal State, the requirement codified therein.79 Such a reading corresponds to Art. 58 (1) which clarifies that freedom of navigation constitutes a right of States, not of ships or its masters. 80 Art. 60 (6) thus a priori limits the freedom of navigation of other States in the EEZ. 30 The ‘generally accepted international standards’ referred to by Art. 60 (6) have been developed by way of Recommendation on Safety Zones and Safety of Navigation around Offshore Installations and Structures adopted by the IMO in 1989.81 The pertinent requirements include calls for (1) navigating with caution, ‘giving due consideration to safe speed and safe passing distances taking into account the prevailing weather conditions and the presence of other vessels or dangers’, (2) taking early and substantial avoiding action, (3) using any routeing systems established in the area, and (4) maintain a continuous listening watch on the navigating bridge on appropriate radio frequencies.82 29

9. ‘Artificial islands, installations and structures and the safety zones around them may not be established where interference may be caused to the use of recognized sea lanes essential to international navigation.’ 31

While likewise being dedicated to the issue of navigation, Art. 60 (7) is, in contrast to paragraph 6, not addressed to the flag State. Rather, it prescribes a duty of the coastal State to refrain from establishing artificial islands, installations and structures, and the safety zones surrounding them, where ‘interference may be caused to the use of recognized sea lanes essential to international navigation’. The flexible wording of the provision made it inevitable for the IMO to further develop the obligation codified therein. In order to avoid conflicts between the exclusive right of the coastal State to construct and operate artificial islands, installations and structures under Art. 60 (1) on the one hand and freedom of navigation on the other, the IMO called upon coastal States to study from the outset, i. e., prior to the authorization of a specific installation, the ‘pattern of shipping traffic through offshore resource exploration areas at an early stage so as to be able to assess potential interference with marine traffic passing close to or through such areas at all stages of exploitation’. 83 It furthermore adopted Resolution A.572(14) establishing general provisions on ships’ routeing, 84 which applies to areas where routeing schemes have been put into place by the IMO in order to enhance safety of international navigation. Paragraph 3.10 of this document recommends coastal States to ‘ensure, as far as practicable, that oil rigs, platforms and other similar 78 For deducing a ‘responsibility to ensure’ see ITLOS, Request for an Advisory Opinion submitted by the SubRegional Fisheries Commission (SRFC), Advisory Opinion of 2 April 2015, paras. 125–129, available at: https:// www.itlos.org/en/cases/list-of-cases/case-no-21/. 79 Nordquist/Nandan/Rosenne (note 49), 587, who accidentally refer to the coastal State; IMO Safety Zones (note 56), para. 1 (d). See also CJEU, Case C-308/06, Judgment of 3 June 2008, Intertanko [2008] ECR I-4057, paras. 59, 61. 80 Proelss on Art. 58 MN 9. 81 IMO Safety Zones (note 56), Annex; see also IMO Implications of UNCLOS (note 59), 39. 82 IMO Safety Zones (note 56), Annex, para. 2. 83 Ibid., para. 1 (a). 84 IMO, General Provisions on Ships’ Routeing, IMO Res. A.572(14) of 20 November 1985, Annex.

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Artificial islands, installations and structures in the exclusive economic zone

32–33

Art. 60

structures are not established within routeing systems adopted by the IMO’. If temporary or permanent positioning of installations cannot be avoided (e. g. because of findings of important exploitation prospects), the coastal State is asked to submit temporary or permanent amendments to the scheme to the IMO.85 The latter recommended practice demonstrates that the IMO does not seem to act on the assumption that interferences caused by the objects addressed in Art. 60 to international navigation must mandatorily be avoided – an assumption that can arguably be based on the use of the words ‘may not’ instead of ‘must not’ in Art. 60 (7). Rather, the coastal State is obliged to refrain from constructing, operating and using artificial islands, installations and structures in areas relevant for international navigation only insofar as the exercise of its sovereign rights in terms of Art. 56 (1)(a) is otherwise not made impossible, or considerably impeded. It should be noted that the scope of the term ‘recognized sea lanes essential to international 32 navigation’ is not limited to areas with regard to which the IMO has adopted routeing schemes. Rather, recognition of a sea lane essential to international navigation presumes an element of international custom, namely that the sea area concerned is frequently and on a larger scale used by ships flying the flags of a certain number of States. Against this background, straits used for international navigation,86 approaches to internationally relevant ports and harbours, and traditional shipping lanes that are substantially used for international navigation may arguably be regarded as falling within the scope of Art. 60 (7).87

10. ‘Artificial islands, installations and structures do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf.’ Art. 60 (8) clarifies that the status of artificial islands, installations and structures is not the 33 same as that of islands. Islands are either (part of) the territory of a sovereign State or (e. g. in the case of islands that newly emerge due to volcanic activity) terra nullius that may be occupied by another State. Therefore, they have a status similar to land territory. 88 As sovereign territory, islands are generally capable of generating maritime zones under the international law of the sea (cf. Art. 121 (2)). Only in case the island concerned ought to be qualified as a rock which cannot sustain human habitation or economic life of its own, it does not have an EEZ or continental shelf.89 In contrast, artificial islands, installations and structures are not part of the territory of the coastal State, and the State does not exercise territorial sovereignty, but only exclusive jurisdiction over these features (see supra, MN 16– 17). Due to the fact that only land or (natural) island territory is capable of generating a territorial sea, the first part of the second sentence of Art. 60 (8) is self-explanatory. However, as the Convention identifies the baseline as the starting point for measuring the breadth of the territorial sea (cf. Art. 5), the message contained in Art. 60 (8) indirectly results in the inapplicability of the law on baselines to artificial islands, installations and structures, and thus complements Art. 60 (5) which states that safety zones establishes around these objects are measured from each point of their outer edge. The final element of Art. 60 (8) takes into account that the presence of (natural) islands has been accepted by the ICJ as constituting a geographical circumstance relevant for the delimitation of the territorial sea, EEZ and

85

Ibid., Annex, paras. 3.10 and 3.11. For an analysis of the element ‘use for international navigation’ see Jia on Art. 37 MN 10–13. 87 Consenting Papadakis (note 38), 111; but see Papanicolopulu on Art. 261 MN 4, arguing that the category of sea lanes referred to in Art. 60 (7) would probably be narrower than the category of ‘established international shipping routes’ mentioned in Art. 261. 88 See also Art. 121 (2) referring to the provisions of the Convention ‘applicable to other land territory’. A detailed analysis of the status of islands is provided by Talmon on Art. 121 MN 7–26. 89 For details see Talmon on Art. 121 MN 27 et seq. 86

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Part V. Exclusive economic zone

continental shelf between States with opposite or adjacent coasts. 90 It thus clarifies that artificial islands, installations and structures do not at all affect boundary delimitation.

Article 61 Conservation of the living resources 1. The coastal State shall determine the allowable catch of the living resources in its exclusive economic zone. 2. The coastal State, taking into account the best scientific evidence available to it, shall ensure through proper conservation and management measures that the maintenance of the living resources in the exclusive economic zone is not endangered by over-exploitation. As appropriate, the coastal State and competent international organizations, whether subregional, regional or global, shall cooperate to this end. 3. Such measures shall also be designed to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors, including the economic needs of coastal fishing communities and the special requirements of developing States, and taking into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether subregional, regional or global. 4. In taking such measures the coastal State shall take into consideration the effects on species associated with or dependent upon harvested species with a view to maintaining or restoring populations of such associated or dependent species above levels at which their reproduction may become seriously threatened. 5. Available scientific information, catch and fishing effort statistics, and other data relevant to the conservation of fish stocks shall be contributed and exchanged on a regular basis through competent international organizations, whether subregional, regional or global, where appropriate and with participation by all States concerned, including States whose nationals are allowed to fish in the exclusive economic zone. Bibliography: David J. Attard, The Exclusive Economic Zone in International Law (1987); Richard Barnes, The Convention on the Law of the Sea: An Effective Framework for Domestic Fisheries Conservation?, in: David Freestone/Richard Barnes/David M. Ong (eds.), The Law of the Sea: Progress and Prospects (2006), 233–260; Patricia Birnie/Alan Boyle/Catherine Redgwell, International Law and the Environment (3rd edn. 2009); William T. Burke, The New International Law of Fisheries: UNCLOS 1982 and Beyond (1994); William T. Burke, U.S. Fishery Management and the New Law of the Sea, AJIL 76 (1982), 24–55; John F. Caddy/Rubin Mahon, Reference Points for Fisheries Management: FAO Fisheries Technical Paper. No. 347 (1995); Donna R. Christie, The Conservation and Management of Stocks Located Solely Within the Exclusive Economic Zone, in: Ellen Hey (ed.), Developments in International Fisheries Law (1999), 395–419; Daniela Diz, Marine Biodiversity: Unravelling the Intricacies of Global Frameworks and Applicable Concepts, in: Elisa Morgera/Jona Razzaque (eds), Encyclopedia of Environmental Law: Biodiversity and Nature Protection Law (2016); Juliet Eilperin, US Tightens Fishing Policy, Setting 2012 Catch Limits for All Managed Species, Washington Post, 8 January 2012; David Freestone, Implementing Precaution Cautiously: The Precautionary Approach in the Straddling and Highly Migratory Fish Stocks Agreement, in: Ellen Hey (ed.), Developments in International Fisheries Law (1999), 287– 325; James Harrison, Making the Law of the Sea (2011); Moritaka Hayashi, The Straddling and Highly Migratory Fish Stocks Agreement, in: Ellen Hey (ed.), Developments in International Fisheries Law (1999), 55–83; Douglas M. Johnston, International Law of Fisheries (1965); Marion Markowski, The International Law of EEZ Fisheries (2010); Gerald Moore, The Code of Conduct for Responsible Fisheries, in: Ellen Hey (ed.), Developments in International Fisheries Law (1999), 85–105; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); David M. Ong, Towards an International Law for the Conservation of Offshore Hydrocarbon Resources within the Continental Shelf?, in: David Freestone/Richard Barnes/David M. Ong (eds.), The Law of the Sea: Progress and Prospects (2006), 93– 114; Donald R. Rothwell/Tim Stephens, The International Law of the Sea (2010); Charlotte Salpin, The Law of the Sea: A Before and An After Nagoya?, in: Elisa Morgera/Matthias Buck/Elsa Tsioumani (eds.), The 2010 Nagoya Protocol on Access and Benefit-sharing: Implications for International Law and Implementation Challenges

90

480

For references see Symmons on Art. 15 MN 13–14, 27–34 and Tanaka on Art. 74 MN 24.

Harrison/Morgera

Art. 61

Conservation of the living resources

~a, The (2012), 149–183; Yoshifumi Tanaka, A Dual Approach to Ocean Governance (2008); Francisco O. Vicun Exclusive Economic Zone: Regime and Legal Nature under International Law (1989) Documents: Conservation and Management Plan for Marine Turtles of the Atlantic Coast of Africa (2008); COP CBD, Decision Adopted by the Conference of the Parties to the Convention on Biological Diversity at Its Tenth Meeting: X/29. Marine and Coastal Biodiversity, UN Doc. UNEP/CBD/COP/DEC/X/29 (2010); COP CBD, Decision Adopted by the Conference of the Parties to the Convention on Biological Diversity at Its Tenth Meeting: Decision X/2. The Strategic Plan for Biodiversity 2011–2020 and the Aichi Biodiversity Targets, UN Doc. UNEP/CBD/COP/DEC/X/2 (2010); COP CBD, Decision Adopted by the Conference of the Parties to the Convention on Biological Diversity at Its Eleventh Meeting: Decision IX/20. Marine and Coastal Biodiversity, UN Doc. UNEP/CBD/COP/DEC/IX/20 (2008); COP CBD, Decision Adopted by the Conference of the Parties to the Convention on Biological Diversity at its Seventh Meeting: VII/5. Marine and Coastal Biological Diversity, UN Doc. UNEP/CBD/COP/DEC/VII/5 (2004); COP CBD, Report of the Fifth Meeting of the Conference of the Parties to the Convention on Biological Diversity, UN Doc. UNEP/CBD/COP/5/23 (2000); COP CBD, Report of the Fourth Meeting of the Conference of the Parties to the Convention on Biological Diversity, UN Doc. UNEP/ CBD/COP/4/27 (1998); COP CBD, Report of the Second Meeting of the Conference of the Parties to the Convention on Biological Diversity, UN Doc. UNEP/CBD/COP/2/19 (1995); COP CMS, Bycatch of CMS-Listed Species in Gillnet Fisheries, UN Doc. UNEP/CMS/Resolution 10.14 (2011); COP CMS, Memorandum of Understanding on the Conservation of Migratory Sharks, UNEP Doc. CMS/Sharks/Outcome 1.2 (2012), Annex 3 (Conservation Plan); FAO, International Guidelines on Bycatch Management and Reduction of Discards (2011); FAO, Report of the Twenty-Ninth Session of the Committee on Fisheries, Doc. FIPI/R973 (2011); FAO, International Plan of Action to Prevent, Deter, and Eliminate Illegal, Unreported and Unregulated Fishing (2001); FAO, International Plan of Action for the Conservation and Management of Sharks, International Plan of Action for Reducing Incidental Catch of Seabirds in Longline Fisheries, International Plan of Action for the Management of Fishing Capacity (1999); FAO, Code of Conduct on Responsible Fisheries (1995); Memorandum of Understanding on the Conservation and Management of Marine Turtles and their Habitats of the Indian Ocean and South-East Asia Conservation and Management Plan (2009); Secretary General, Report of the World Commission on Environment and Development, UN Doc. A/42/427 (1987); Single Species Action Plan for the Loggerhead Turtle (Caretta caretta) in the South Pacific Ocean (2014); UN Declaration on the Rights of Indigenous Peoples, GA Res. 61/295 of 13 September 2007; UN World Summit on Sustainable Development, Report of the World Summit on Sustainable Development, UN Doc. A/CONF.199/20 (2002); UNCED, The Rio Declaration on the Environment and Development, UN Doc. A/CONF.151/5/REV.1 (1992), ILM 31, 874; UNCED, Report of the United Nations Conference on the Environment and Development, UN Doc. A.CONF/ 151/26/REV.1 (vol. I) (1992), 9–479 (Agenda 21) Cases: ICJ, Fisheries Jurisdiction Case (United Kingdom of Great Britain and Northern Ireland v. Iceland), Merits, Judgment of 25 July 1974, ICJ Reports (1974), 3; PCA, The North Atlantic Coast Fisheries Case (Great Britain v. United States of America), Award of 7 September 1910, RIAA XI, 167; ITLOS Seabed Disputes Chamber, Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Advisory Opinion of 1 February 2011, available at: http://www.itlos.org/fileadmin/itlos/documents/ cases/case_no_17/adv_op_010211.pdf; PCA (Arbitral Tribunal Constituted under Annex VII UNCLOS), The Chagos Marine Protected Area Arbitration (Mauritius/United Kingdom of Great Britain and Northern Ireland), Award of 18 March 2015, available at: http://www.pca-cpa.org/showpage.asp?pag_id=1429; ITLOS, Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion of 2 April 2015, available at: https://www.itlos.org/en/cases/list-of-cases/case-no-21/ Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘conservation and management measures’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘maximum sustainable yield’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘allowable catch’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Other Conservation Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Generally Recommended International Minimum Standards. . . . . . . . . . . . . . . . . . . . 6. Best Available Scientific Evidence and the Precautionary Principle. . . . . . . . . . . . . . 7. Exchange of available Scientific Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8. Cooperation with Competent Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9. Associated Species . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10. Outlook . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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I. Purpose and Function The establishment of the exclusive economic zone (EEZ) means that most of the world’s fish stocks are now subject to the jurisdiction of coastal States. It is estimated that about 95 % of the capture fisheries take place in waters within 200 nautical miles of the coast. 1 Whilst Art. 56 of the Convention confers sovereign rights to explore and exploit the living resources in the EEZ,2 such rights also come with a responsibility to conserve and manage these resources. Indeed, one of the principal rationales for extending coastal State jurisdiction was to permit greater control of fisheries by coastal States. In the words of one proponent of the EEZ at UNCLOS III, ‘only the coastal State was in a position to apply the necessary conservation measures and plan the development of ocean species’. 3 This view was based on the assumption that the ability to fish would be effectively controlled and regulated by the coastal State so as to reduce over-capitalization of fishing fleets and therewith the potential for overfishing. Both of these objectives have been quite difficult to achieve in practice, however.4 2 The purpose of Art. 61 is to set out the basic obligations of a coastal State in relation to the conservation and management of living resources in the EEZ. It applies only to living resources and there is no equivalent provision for non-living resources, such as oil and gas. 5 The term ‘living resource’ – which was conceived and has hitherto been applied in relation to fisheries – may be interpreted as including the later concept of biodiversity in accordance with the Convention on Biological Diversity (CBD),6 to which all States Parties to the 1982 Convention are also party,7 thus allowing a broader interpretation of the provision in relation to conservation, sustainable use and impacts on ecosystems within the EEZ. 8 It remains subject to debate, however, whether such an evolutionary interpretation would also lead to the inclusion of marine genetic resources under Art. 61 and the applicability of the provisions on access to the surplus under Art. 62 to such resources. 9 3 It should be noted that several key elements of Art. 61 can be found verbatim in Art. 119 UNCLOS, under the heading Conservation of the Living Resources of the High Seas, namely: the determination of the total allowable catch (TAC) on the basis of scientific evidence available; the designation of measures to maintain or restore populations of harvested species at levels that can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors including the special requirements of developing States; the need to take into 1

1 See e. g. UNCED, Report of the United Nations Conference on the Environment and Development, UN Doc. A.CONF/151/26/REV.1 (Vol. I) (1992), 9 (Agenda 21), Ch. 17.70. 2 For further information, see Proelss on Art. 56 MN 8–15. 3 Statement of Zuleta Torres (Colombia), Second Committee UNCLOS III, 29th Meeting, UN Doc. A/ CONF.62/C.2/SR.29 (1974), OR II, 224, 225. 4 Donna Christie, The Conservation and Management of Stocks Located Solely within the Exclusive Economic Zone, in: Ellen Hey (ed.), Developments in International Fisheries Law (1999), 395, 396. 5 David M. Ong, Towards an International Law for the Conservation of Offshore Hydrocarbon Resources within the Continental Shelf?, in: David Freestone/Richard Barnes/David M. Ong (eds.), The Law of the Sea: Progress and Prospects (2006), 93, 96. 6 Art. 2 CBD defines biodiversity as ‘the variability among living organisms from all sources including, 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’. 7 Yoshifumi Tanaka, A Dual Approach to Ocean Governance (2008), 134. For further information, cf. Status of Multilateral Treaties Deposited with the Secretary General, available via: http://treaties.un.org. 8 Patricia Birnie/Alan Boyle/Catherine Redgwell, International Law and the Environment (3rd edn. 2009), 750: ‘[T]he CBD may have modified the fisheries provisions of UNCLOS’ to the extent necessary to ensure that fishing activities do not cause or threaten serious damage to biodiversity in light of CBD Art. 22, while also acknowledging that certain concepts in the 1982 Convention can be ‘readily interpreted to include measures aimed at the protection of marine biodiversity’. 9 Charlotte Salpin, The Law of the Sea: A Before and an After Nagoya?, in: Elisa Morgera/Matthias Buck/Elsa Tsioumani (eds.), The 2010 Nagoya Protocol on Access and Benefit-sharing: Implications for International Law and Implementation Challenges (2012), 149 et seq.

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account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards; and the obligation to contribute to and exchange available scientific information on a regular basis through international organizations.10 Art. 61 is not a self-standing provision; it must be read in light of the other provisions in 4 Part V of the Convention relating to the conservation and management of living resources, notably Arts. 62–73. In addition, it should be read in light of the general obligations concerning the protection of the marine environment, rare or fragile ecosystems and the habitat of depleted, threatened or endangered species (� Art. 192; Art. 194; Art. 196). 11 International legal developments related to the precautionary and ecosystem approach, furthermore, warrant an evolutionary interpretation of Art. 61.12

II. Historical Background A duty to conserve fish in coastal waters was arguably already in existence at the turn of 5 the 20th century. In the North Atlantic Coast Fisheries Case, the arbitral tribunal held that ‘Great Britain, as the local sovereign, has the duty of preserving and protecting the fisheries. In so far as it is necessary for that purpose, Great Britain is not only entitled, but obliged to provide for the protection and preservation of the fisheries.’13 The 1958 Convention on Fishing and Conservation of the Living Resources of the High 6 Seas (High Seas Fishing Convention) already contained certain provisions to which the origin of Art. 61 can be traced back. Although the High Seas Fishing Convention prohibited coastal States from taking enforcement action against foreign nationals fishing in the high seas adjacent to their territorial waters,14 it did recognize that coastal States have ‘a special interest’ in maintaining the productivity of high seas fisheries adjacent to their territorial sea.15 To balance these two approaches, the High Seas Fishing Convention established a ‘convoluted procedure’16 allowing unilateral conservation measures in these areas where agreement with third States could not be reached. Accordingly, such unilateral conservation measures would be valid for third States if: there was a need for urgent application of these measures in the light of the existing knowledge of the fishery; the measures adopted were based on appropriate scientific findings; and they did not discriminate in form or in fact against foreign fishermen.17 The unilateral measures would then be subject to endorsement or overruling by a special fisheries commission with binding decision-making powers. 18 The duty of conservation was also recognized in the Fisheries Jurisdiction Case (UK v. 7 Iceland) in 1974. Judge NAGENDRA SINGH, in his declaration in that case, noted that: ‘The law pertaining to fisheries must accept the primacy for the need of conservation based on scientific data. This aspect has been properly emphasized to the extent needed to establish that the exercise of preferential rights of the coastal State, as well as the historic rights of other States dependent on the same fishing grounds, have all to be subject to the over-riding consideration of proper conservation of the fishery resources for the benefit of all concerned. This conclusion would appear warranted if this vital source of man’s nutrition is to be preserved and developed for the community.’ 19 10

For further information, see Rayfuse on Art. 119 MN 14 et seq. Tanaka (note 7), 134. On the precautionary and the ecosystem approaches, see further Czybulka on Art. 192 MN 3, Art. 194 MN 12, 32–34 and Art. 196 MN 9, 19; Stephens on Art. 198 MN 13, Art. 199 MN 8 and Art. 201 MN 5; Rayfuse on Art. 119 MN 33–25. 13 PCA, The North Atlantic Coast Fisheries Case (Great Britain v. United States of America), Award of 7 September 1910, RIAA XI, 167. 14 Art. 6 (4) High Seas Fishing Convention. 15 Art. 6 (1) High Seas Fishing Convention. 16 Donald R. Rothwell/Tim Stephens, The International Law of the Sea (2010), 296. 17 Art. 7 High Seas Fishing Convention. 18 Art. 6 (5) and Arts. 9–11 High Seas Fishing Convention, as summarized by Rothwell/Stephens (note 16), 296. 19 ICJ, Fisheries Jurisdiction Case (United Kingdom of Great Britain and Northern Ireland v. Iceland), Merits, Judgment of 25 July 1974, Declaration by Nagrenda Singh, ICJ Reports (1974), 3, 40. 11 12

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It was on this basis that the ICJ ordered the parties to the dispute to negotiate an equitable solution to their differences, taking into account inter alia the ‘conservation and development of the fishery resources’ in question.20 The judgment in the Fisheries Jurisdiction Case (UK v. Iceland) was rendered whilst negotiations at UNCLOS III were already underway, and the Court noted that ‘[t]he very fact of convening the third Conference on the Law of the Sea evidences a manifest desire on the part of all States to proceed to the codification of that law on a universal basis, including the question of fisheries and conservation of the living resources of the sea.’21 Indeed, the need for conservation had grown even greater over time as there was increasing evidence that many fish stocks were threatened by overfishing. 22 9 From the outset, the discussions at UNCLOS III concerning coastal State jurisdiction over fisheries assumed that such States must take measures to conserve and manage the fish stocks under their control. The crucial question concerned how much discretion the coastal State should have in deciding on appropriate conservation and management measures. On the one hand, some States proposed granting complete authority to the coastal State to decide such matters.23 On the other hand, some States were of the opinion that international fishery organizations and other fishing States should also have a role in managing fish stocks in the EEZ.24 10 A compromise was achieved between these two positions during the negotiations. The provision included in the negotiating text gave broad discretion to the coastal State to regulate fish stocks in their EEZ, whilst requiring it to take into account the recommendations of global, regional and subregional organizations. Despite several unsuccessful attempts to reduce the discretion of coastal States25, the final text of the Convention incorporates this basic compromise position (� Art. 61 (2); Art. 61 (3)). 8

III. Elements 1. ‘conservation and management measures’ Unlike the sequence of paragraphs in Art. 61, the following sub-sections will start with a discussion of the overall conservation and sustainable management objectives enshrined in Art. 61 (2), and then continue focusing on the central link of conservation and sustainable management with the concept of maximum sustainable yield (MSY) reflected in Art. 61 (3). Both of these factors are related to the determination of the TAC which is dealt with in Art. 61 (1) and is a prominent example of a conservation and management measure that must be taken by coastal States. The analysis will then turn to other possible conservation measures. Criteria for the determination of conservation and management measures are discussed, followed by an analysis of the role of science, precaution, exchange of information and cooperation with international organizations. 12 Art. 61 (2) requires coastal States to take ‘proper conservation and management measures’ in relation to the living resources of the EEZ. The basic objective of such measures is to ensure that such living resources are ‘not endangered by over-exploitation’. The provision has been criticized for not specifying the unit to be maintained (stock, 11

20

Ibid., 34 (para. 79). Ibid., 23 (para. 53). 22 In 1987 it noted that ‘most major familiar fish stocks throughout the waters over continental shelves, which provide 95 per cent of the world’s fish catch, are now threatened’, Secretary General, Report of the World Commission on Environment and Development, UN Doc. A/42/427 (1987), Annex (Our Common Future). 23 See e. g. Second Committee UNCLOS III, Gambia et al.: Draft Articles on the Exclusive Economic Zone, UN Doc. A/CONF.62/C.2/L.82 (1974), OR III, 240. 24 See e. g. Second Committee UNCLOS III, Bulgaria et al.: Draft Articles on the Economic Zone, UN Doc. A/ CONF.62/C.2/L.38 (1974), OR III, 214, 215 (Article 12). 25 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 606–608. 21

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Art. 61

species, biomass) or the precise level at which it is to be maintained. 26 The term ‘endangered’ is neither defined by the Convention, and as noted by BURKE, the meaning of this term is not obvious. BURKE argues that ‘the concept of “endangered” might be interpreted as implying a threat to survival, i. e., in danger of extinction, but it seems doubtful if this is very meaningful or helpful.’27 He therefore proposes that the term should be understood to refer 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.’28 This appears to be the best understanding of the term in light of the obligation found in Arts. 61 (3) to ‘also’ aim to maintain or restore populations of fish at levels that will produce the MSY.

2. ‘maximum sustainable yield’ The concept of MSY is at the centre of the regime for the conservation and management 13 of living resources in the Convention (see also � Art. 119). It refers to the maximum catch that can be taken without negatively affecting the ability of a stock to maintain its population size. The term ‘population’ is not defined in the Convention, but can be understood as ‘a group of fish of one species sharing common ecological and genetic features and more likely to breed with one another than with individuals from another such group.’29 MSY is a biological concept that in principle can be calculated in an objective manner by 14 the coastal State, provided that it has the relevant scientific information. However, the concept of MSY has been widely criticized by fisheries scientists and other commentators, 30 significantly because of the ‘factual obstacles inherent in determining cause and effect in respect of the use of living resources.’31 Whatever the merits of this debate, it is clear that coastal States have discretion to deviate from the objective of MSY when setting their conservation and management targets because Art. 61 (3) refers to MSY ‘as qualified by relevant environmental and economic factors, including the economic needs of coastal fishing communities and the special requirements of developing States, and taking into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether subregional, regional or global.’32

What environmental or economic factors should be taken into account will be up to the coastal State to decide and they would appear to have broad discretion in this regard. Indeed, despite the fact that the Convention makes no explicit reference to social factors, BURKE argues that ‘the other treaty provisions in toto convey ample authority on the coastal [S]tate to take such factors into account.’33 Nonetheless, in the light of the object and purpose of this provision, as well as contemporary international environmental law, it is possible to conclude that MSY should be seen as acting as the upper limit beyond which harvesting levels are no longer sustainable: accordingly, coastal States are not allowed to set the qualified MSY above the biological MSY level.34 This is further confirmed by the 26

E. g. Marion Markowski, The International Law of EEZ Fisheries (2010), 26. William T. Burke, U.S. Fishery Management and the New Law of the Sea, AJIL 76 (1982), 24, 32. 28 Ibid., 32. 29 Markowski (note 26), 26. 30 See e. g. the discussion in Douglas M. Johnston, International Law of Fisheries (1965), 49–55; David J. Attard, ~a, The Exclusive Economic The Exclusive Economic Zone in International Law (1987), 153; Francisco O. Vicun Zone: Regime and Legal Nature under International Law (1989), 51. 31 Richard Barnes, The Convention on the Law of the Sea: An Effective Framework for Domestic Fisheries Conservation? in: David Freestone Richard Barnes/David M. Ong (eds.), The Law of the Sea: Progress and Prospects (2006), 235 and 242. 32 Emphasis added. 33 Burke (note 27), 36. 34 Markowski (note 26), 27–28; see the more pessimistic comments by Barnes (note 31), 243–244. 27

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international target established to encourage and monitor States’ efforts to achieve sustainable fisheries and restore depleted stocks to levels that can sustain the MSY. 35 15 A coastal State may also have to take into account the interests of other States in determining conservation and management measures, if Art. 61 is read in light of Art. 56(2), which requires a coastal State to ‘have due regard to the rights and duties of other States’ when ‘exercising its rights and performing its duties under the Convention.’ For example, in the Chagos Arbitration, the United Kingdom was held to have violated Art. 56(2) by declaring a no-take marine protected area in the waters around the Chagos archipelago, because it had failed to consult with Mauritius in breach of an agreement between the two countries dating back to Mauritian independence.36 The Arbitral Tribunal elaborated that having ‘due regard’ entails consideration of the ‘nature of rights held by [other countries], their importance, the extent of the anticipated impairment, the nature and importance of activities contemplated […] and the availability of alternative approaches’ leading to a ‘conscious balancing of rights and interests, suggestions of compromise and willingness to offer reassurances […], and an understanding of [other countries’] concerns in connection with the proposed activity.’ 37

3. ‘allowable catch’ 16

There are several types of conservation and management measures at the disposal of the coastal State to meet the objectives of Art. 61.38 One measure which would seem to be obligatory is the calculation of the ‘allowable catch’. Art. 61 (1) says in mandatory terms that ‘the coastal State shall determine the allowable catch of the living resources in its exclusive economic zone.’ It has been suggested that this concept applies to both the overall catch in the EEZ and the allowable catch of individual stocks.39 The provision does not differentiate between the commercially exploited and other fish stocks, thus in principle applying irrespective of the significance of fish stocks for the fishing industry. Indeed, the International Tribunal for the Law of the Sea has stressed that ‘in accordance with the Convention, the adoption by the coastal State of conservation and management measures for all living resources within its exclusive economic zone is mandatory’.40 In practice, however, it is the allowable catch of commercially significant stocks that has generated most State practice as it is more important in light of the overarching duty to ensure that populations of harvestable species are maintained at levels that can produce the MSY. A recent review of State practice suggests that priority TACs are determined for fish stocks explored at or close to the maximum sustainable limit, but there is no consistent implementation of the obligation to establish TACs for all commercially significant stocks.41 One significant exception is the practice of the United States, which through a 2006 amendment to the Magnuson-Stevens Fishery Conservation and Management Act requires annual catch limits to be set for all managed fisheries, whether or not they are currently overfished.42 35 UN World Summit on Sustainable Development, Report of the World Summit on Sustainable Development, UN Doc. A/CONF.199/20 (2002), 6 (Plan of Implementation of the World Summit on Sustainable Development), 23 (para. 31(a)); and follow-up by the General Assembly: e. g., GA Res. 65/38 of 7 December 2010, para. 2. 36 PCA (Arbitral Tribunal Constituted under Annex VII UNCLOS), The Chagos Marine Protected Area Arbitration (Mauritius/United Kingdom of Great Britain and Northern Ireland), Award of 18 March 2015, available at: http://www.pca-cpa.org/showpage.asp?pag_id=1429. 37 Ibid., paras. 519 and 535. 38 Cf. also the wording of Art. 119 (1): ‘In determining the allowable catch and establishing other conservation measures’. For further information, see Rayfuse on Art. 119 MN 14–21. 39 Nordquist/Nandan/Rosenne (note 25), 609. 40 ITLOS, Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion of 2 April 2015, para. 96, available at: https://www.itlos.org/en/cases/list-of-cases/case-no-21/. 41 Markowski (note 26), 109–112. 42 Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006, 16 USC 1801. See Juliet Eilperin, US Tightens Fishing Policy, Setting 2012 Catch Limits for All Managed Species, Washington Post, 8 January 2012. Note however, that the United States is currently not party to the Convention and therefore this practice is not carried out in order to fulfill specific obligations under Arts. 61 or 119.

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4. Other Conservation Measures The allowable catch is not the only conservation tool at the disposal of the coastal State. 17 The provision refers to ‘proper conservation measures’. Some content can be given to this phrase by referring to Art. 62 which lists some of the types of measures that may be included in coastal State legislation, including licensing of fishermen, fishing vessels and equipment; regulating seasons and areas of fishing; regulating the types, sizes and number of fishing vessels that may be used; regulating the types, sizes and amount of gear that might be used; and fixing the age and size of fish that may be caught. Once again, the coastal State would seem to have a broad degree of discretion in deciding what conservation and management measures to utilize. Relevant international standards, however, increasingly influence coastal States’ choice of appropriate conservation measures.

5. Generally Recommended International Minimum Standards In determining its conservation and management measures, a coastal State must, pursuant 18 to Art. 61 (3), take into account ‘any generally recommended international minimum standards, whether subregional, regional or global’. This reference is broad enough to cover a wide variety of fisheries standards adopted at the international level. In particular, it will cover several instruments adopted through the Food and Agriculture Organization (FAO) Fisheries Committee.43 Prominent examples of generally recommended international standards adopted by the FAO include the Code of Conduct for Responsible Fisheries, 44 and the associated International Plans of Action which deal with Sharks, Seabirds, Fishing Capacity 45, and Illegal, Unreported and Unregulated Fishing.46 Relevant international standards also include generally recommended international 19 minimum standards adopted by other regional or subregional bodies, including many regional fisheries management organizations. Moreover, it is not limited to instruments adopted by fisheries organizations and it may also apply to the recommendations adopted by environmental organizations.47 For example, decisions of the CBD Conference of the Parties relating to the conservation and sustainable use of marine biological diversity are relevant for coastal States when drawing up their conservation and management measures.48 CBD guidance has thus elaborated on the concept of integrated marine and coastal management, including the ongoing assessment and monitoring of marine and coastal living resources, their interactions and impacts on ecosystems; 49 maintenance of the productivity and biodiversity of important and vulnerable marine areas; elimination of 43

See James Harrison, Making the Law of the Sea (2011), 225. FAO, Code of Conduct on Responsible Fisheries (1995). See generally Gerald Moore, The Code of Conduct for Responsible Fisheries, in: Hey (note 4), 85. 45 FAO, International Plan of Action for the Conservation and Management of Sharks, International Plan of Action for Reducing Incidental Catch of Seabirds in Longline Fisheries, International Plan of Action for the Management of Fishing Capacity (1999). These plans were adopted at the 23rd session of the FAO Fisheries Committee in February 1999 and endorsed by the FAO Council in June 1999. 46 FAO, International Plan of Action to Prevent, Deter, and Eliminate Illegal, Unreported and Unregulated Fishing (2001). This plan was adopted at the 24th session of the FAO Fisheries Committee in March 2001 and endorsed by the FAO Council in June 2001. 47 Art. 31 (3) Vienna Convention on the Law of Treaties. 48 See the so-called Jakarta Mandate on Marine and Coastal Biodiversity, COP CBD, Report of the Second Meeting of the Conference of the Parties to the Convention on Biological Diversity, UN Doc. UNEP/CBD/COP/ 2/19 (1995), 59 (Decision II/10); the programme of work on marine and coastal biodiversity annexed to COP CBD, Report of the Fourth Meeting of the Conference of the Parties to the Convention on Biological Diversity, UN Doc. UNEP/CBD/COP/4/27 (1998), 84, 85 (Decision IV/5, Annex); COP CBD, Decision Adopted by the Conference of the Parties to the Convention on Biological Diversity at Its Seventh Meeting: VII/5 Marine and Coastal Biological Diversity, UN Doc. UNEP/CBD/COP/DEC/VII/5 (2004), 10 (Annex, Elaborated Programme of Work on Marine and Coastal Biological Diversity). 49 COP CBD Decision IV/5 (note 48), 85 (Annex, Basic Principles). 44

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destructive fishing practices;50 and more recently also the assessment of the impacts of climate change on the sustainability of fish stocks and the habitats that support them and the integration of climate change-related concerns into relevant national strategies. 51 Particular attention has been paid to the establishment of marine protected areas (MPAs) (see also � Art. 211 (6)), as an essential component of integrated coastal management, 52 and as a key ‘conservation measure’ under Art. 61 (2). International goals have been established to increase the coverage of MPAs, their effective and equitable management, their ecological representativeness and connectivity with a view to establishing representative networks.53 To these ends, CBD parties have adopted ‘Scientific Criteria for Identifying Ecologically or Biologically Significant Marine Areas in Need of Protection in Open-Ocean Waters and Deep-Sea Habitats’ and ‘Scientific Guidance for Selecting Areas to Establish a Representative Network of Marine Protected Areas, Including in Open-Ocean Waters and Deep-Sea Habitats’,54 supporting the involvement of indigenous and local communities in the establishment and management of MPAs and the integration of their traditional knowledge.55 The international community, however, is still elaborating clarifications on the objective and management of MPAs for fisheries purposes. 56 20 In addition, the ecosystem approach57 (� Art. 194 (5)) as elaborated under the CBD entails a management process aimed at integrating management of land, water and living resources, and promoting conservation and sustainable use in an equitable way. This is also a social process: different interested communities must be involved through the development of efficient and effective structures and processes for decision-making and management.58 Within this process, traditional knowledge of local and indigenous communities should also be integrated.59 Along similar lines, the FAO Code of Conduct calls upon States to seek to identify relevant domestic parties that have a legitimate interest in the use and management of fisheries resources and establish arrangements for consulting them to gain their collaboration in achieving responsible fisheries.60 The participatory aspect of the ecosystem approach thus allows for the implementation of relevant international human rights obligations of coastal States, namely their obligation to ensure early and meaningful participation of concerned indigenous and local communities in decision-making processes on the conservation of traditional marine fishing grounds or that may affect traditional fishing practices or their rights.61 50

COP CBD Decision VII/5 (note 48), 14 (Operational Objective 2.1.(i) and (h)). COP CBD, Decision Adopted by the Conference of the Parties to the Convention on Biological Diversity at Its Tenth Meeting: X/29. Marine and Coastal Biodiversity, UN Doc. UNEP/CBD/COP/DEC/X/29 (2010), 2 (para. 7); GA Res. 65/37 of 7 December 2010, para. 3. 52 See discussion in Tanaka (note 7), 182–184; and the author’s conclusion that ‘MPAs are not a tool for integrated coastal management, but the integrated management approach is needed for the proper management of MPAs’ to ensure compatibility and effectiveness of MPAs, freedom of navigation and fisheries regulation, ibid., 197. 53 Plan of Implementation of the World Summit on Sustainable Development (note 35), 25 (para. 32 (c)); see also Decision VII/5 (note 48), 3–4 (paras. 18–19); see also COP CBD, Decision Adopted by the Conference of the Parties to the Convention on Biological Diversity at Its Tenth Meeting: Decision X/2. The Strategic Plan for Biodiversity 2011–2020 and the Aichi Biodiversity Targets, UN Doc. UNEP/CBD/COP/DEC/X/2 (2010), 9 (Annex, Target 11). 54 COP CBD, Decision Adopted by the Conference of the Parties to the Convention on Biological Diversity at Its Eleventh Meeting: Decision IX/20. Marine and Coastal Biodiversity, UN Doc. UNEP/CBD/COP/DEC/IX/20 (2008), 11 (Annex II); acknowledged in GA Res. 65/37 of 7 December 2010, para. 180. For a discussion, Daniela Diz, Marine Biodiversity: Unravelling the Intricacies of Global Frameworks and Applicable Concepts, in: Elisa Morgera/Jona Razzaque (eds.), Encyclopedia of Environmental Law: Biodiversity and Nature Protection Law (2016). 55 COP CBD Decision IX/20 (note 54), 5 (paras. 26–27). 56 See e. g. GA Res. 65/37 of 7 December 2010, para. 123. 57 For further information, cf. infra, MN 26–27. 58 COP CBD Decision X/29 (note 51), 4 (para. 13(h)) and 15 (Annex, lit. d). 59 Art. 8 (j) CBD; see also Art. 12.12 FAO Code of Conduct. 60 Art. 7.1.2 FAO Code of Conduct. 61 Art. 27 International Covenant on Civil and Political Rights; UN Declaration on the Rights of Indigenous Peoples, GA Res. 61/295 of 13 September 2007 (universally endorsed); UNCED, The Rio Declaration on the 51

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6. Best Available Scientific Evidence and the Precautionary Principle Another important factor to be taken into account by the coastal State is scientific 21 information about the state of fish stocks in its waters. Scientific information is clearly critical to the making of decisions about the conservation and management of fish stocks. Art. 61 (2) (cf. also � Art. 119 (1)(a)) requires the coastal State to take into account the ‘best available scientific evidence available to it’62 in designing its conservation and management measures. While Art. 61 (2) does not positively require coastal States to undertake scientific research (� Part XIII), it has been argued that the primary obligation to conserve living resources in the EEZ ‘reasonably imposes the burden of acquiring data that make this obligation achievable.’63 The requirement to take into account scientific evidence does not prevent a coastal State 22 from adopting a precautionary approach to fisheries conservation and management. It is arguable that the precautionary approach is today a generally accepted principle of international law.64 This principle has been incorporated in many fisheries instruments adopted since the 1982 Convention, as well as by the CBD Conference of the Parties in relation to marine biological diversity.65 The General Assembly, which is the one of the principal international institutions that reviews implementation of the EEZ fisheries provisions, 66 also periodically recalls the importance of a precautionary approach to EEZ fisheries. 67 According to the best known formulation of the precautionary approach, ‘where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.’ 68 It follows that it is not necessary to have scientific proof that a fish stock is overexploited prior to taking conservation and management measures. According to the precautionary approach, it is better to act earlier in order to prevent any irreversible harm to the fish stock, including by halting fishing activities.69 Notably, international standards have provided detailed guidance on how to apply the 23 precautionary principle to fisheries management through the concept of ‘reference points’. Reference points ‘identify the safe biological limit for harvesting, and other relevant constraints’.70 The FAO differentiates between ‘conceptual’ reference points that capture in broad terms the management objective for the fishery and ‘technical’ reference points, which can be calculated or quantified on the basis of biological or economic characteristics of the fishery; as Environment and Development, UN Doc. A/CONF.151/5/REV.1 (1992), ILM 31, 874 (Rio Declaration), Principle 22; Agenda 21, Ch. 17.82 (b) and 17.83; Art. 6.18 FAO Code of Conduct. See discussion by Markowski (note 26), 83–90. 62 Cf. also Franckx/Boone on Art. 234 MN 31 for the same term used in another context. 63 William T. Burke, The New International Law of Fisheries: UNCLOS 1982 and Beyond (1994), 57. 64 ITLOS Seabed Disputes Chamber, Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Advisory Opinion of 1 February 2011, para. 135: ‘The Chamber observes that the precautionary approach has been incorporated into a growing number of international treaties and other instruments, many of which reflect the formulation of Principle 15 of the Rio Declaration. In the view of the Chamber, this has initiated a trend towards making this approach part of customary international law’, available at: http://www.itlos.org/fileadmin/itlos/documents/cases/case_no_17/adv_op_010211.pdf. For the precautionary approach/principle as codified in UNCLOS, see also Czybulka on Art. 192 MN 3, Art. 194 MN 12, 32–34 and Art. 196 MN 9, 19; Stephens on Art. 198 MN 13, Art. 199 MN 8 and Art. 201 MN 5. 65 COP CBD Decision IV/5 (note 48), 86 (Annex, para. 4): ‘The precautionary approach, as set out in decision II/10, annex II, paragraph 3 (a), should be used as a guidance for all activities affecting marine and coastal biological diversity’. 66 Barnes (note 31), 258–259. 67 GA Res. 66/68 of 6 December 2011, para. 7 calls upon ‘all States, directly or through regional fisheries management organizations and arrangements, to apply widely, in accordance with international law and the Code, the precautionary approach and the ecosystem approach’. 68 Principle 15 Rio Declaration. 69 Markowski (note 26), 43–50. 70 Birnie/Boyle/Redgwell (note 6), 675.

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well as between ‘target’ reference points, indicating a state of a fishing and/or resource which is considered to be desirable and at which management action, whether during development or stock rebuilding, should aim, from ‘limit’ reference points, indicating a state of a fishery and/or a resource which is considered to be undesirable and which management action should avoid. 71 The FAO Code of Conduct on Responsible Fisheries calls upon States to apply ‘widely’ the precautionary approach to fisheries conservation and management, by taking into account ‘uncertainties relating to the size and productivity of the stocks, reference points, stock condition in relation to such reference points, levels and distribution of fishing mortality and the impact of fishing activities, including discards, on non-target and associated or dependent species, as well as environmental and socio-economic conditions’.72

The Code also calls for including the need to determine target reference points and stockspecific limit reference points with a view to determining in advance conservation measures if reference points are exceeded and limit reference points approaches, and to applying these measures automatically.73 24 The UN Fish Stocks Agreement (UNFSA) contains an obligation on coastal States to apply the precautionary approach widely to the conservation, management and exploitation of straddling fish stocks and highly migratory fish stocks found within their EEZ.74 Annex II UNFSA contains guidelines for application of the precautionary approach through the identification of two types of precautionary reference points: on the one hand, States are to determine ‘conservation’ or ‘limit’ reference points, which set boundaries for safe biological limits within which the stock can produce MSY; and on the other hand, ‘management’ or ‘target’ reference points that are intended to represent management objectives.75 Against this background, the guidelines require States to ensure that the risk of exceeding conservation reference points is very low and that management reference points are not exceeded on average. 76 When reference points are approached, they should not be exceeded; and if they are exceeded, States are mandated to take measures without delay for restoring stocks. 77 In addition, if a natural event adversely affects the status of stocks, States are required to adopt temporary emergency measures in order to avoid worsening the situation by over-fishing an affected stock. 78 In relation to exploratory fisheries, ‘cautious conservation and management measures’ are to remain in force until sufficient information has been acquired to permit a proper assessment of the impact of fishing upon the long-term sustainability of the stocks. 79 The precautionary principle as applied in the UNFSA is thus not an ‘absolutist concept’, but rather calls for stock management to be handled ‘in a precautionary manner’ by taking into account uncertainties related to size and productivity of fish stocks, levels and distribution of fish mortality, and the impact of fishing activities on associated or dependent species, including existing and predicted environmental and socio-economic conditions,80 without automatically preventing fishing once reference points are reached. This determination thus remains to be made on an ad hoc basis. 81 25 Against this backdrop, the notion of ‘best’ scientific evidence found in Art. 61 suggests that States are under a duty to keep their conservation and management measures under review on the basis of the most up-to-date scientific evidence that is available to them. This 71 John F. Caddy/Rubin Mahon, Reference Points for Fisheries Management: FAO Fisheries Technical Paper. No. 347 (1995). 72 Arts. 7.5.1 and 7.5.2 FAO Code of Conduct. 73 Art. 7.5.3 FAO Code of Conduct; see also Moore (note 44), 97. 74 Art. 6 UNFSA. See also the discussion on the relevance of the UNFSA for the interpretation of the Convention in Harrison/Morgera on Art. 63 MN 8. 75 Moritaka Hayashi, The Straddling and Highly Migratory Fish Stocks Agreement, in: Hey (note 4), 55, 60. 76 Ibid. 77 Art. 6 (4) UNFSA. 78 Art. 6 (7) UNFSA. 79 Art. 6 (6) UNFSA. 80 Art. 6 (3)(c) UNFSA. 81 David Freestone, Implementing Precaution Cautiously: The Precautionary Approach in the Straddling and Highly Migratory Fish Stocks Agreement, in: Hey (note 4), 287, 320–321.

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means that precautionary measures are temporary and they must be kept under review by the coastal State. Thus, if additional scientific evidence concerning the conservation status of a stock comes to light, States must consider adapting or changing their conservation and management measures in light of these new findings. This is in line with the ecosystem approach and its support for ‘adaptive management’ based on environmental impact assessment, impact management, and the proactive identification and management of gaps in knowledge with a view to fuelling a process of continuous learning.82 Contracting parties to the CBD are specifically called upon to undertake environmental impact assessments and strategic environmental assessments to further strengthen sustainable use of living resources in areas within national jurisdiction.83

7. Exchange of Available Scientific Information In addition to the need for the coastal State to conduct its own research into fish stocks in 26 its EEZ in order to gather relevant scientific evidence for the purposes of Art. 61, Art. 62 (4)(f) of the Convention permits the coastal State to require foreign vessels fishing in its EEZ to conduct specified fisheries research programmes. However, scientific evidence may also come from other sources such as research conducted by another State, inter-governmental organizations or non-governmental organizations. To ensure that States have access to a wide range of scientific sources, Art. 61 (5) calls for the regular exchange of available scientific information, catch and fishing effort statistics and other data relevant to the conservation of fish stocks through competent international organizations. The importance of the enhanced collection and sharing of fisheries data was also stressed in Agenda 21. 84

8. Cooperation with Competent Organizations Art. 61 points to two instances of cooperation with competent international organiza- 27 tions: in the adoption of proper conservation and management measures to avoid overexploitation (Art. 61 (2)) and in relation to the exchange of available scientific information (Art. 61 (5)). In both cases, the Convention foresees the possibility for relevant organizations to operate at the global, regional or sub-regional level. The most notable global organization is the FAO, which performs both normative and technical activities that can support member countries in the conservation of living resources, and also provides statistical and other data on fish stocks and fishing efforts. In fact, the FAO Constitution specifically requires member States to communicate to the Organization all official reports and statistics concerning fisheries,85 thereby allowing the FAO to undertake the worldwide collection, compilation, analysis and diffusion of data and information in fisheries and aquaculture. In addition, the FAO has supported the strengthening of national capacity in the collecting, analysis and use of accurate, reliable and timely data, as well as cooperated in international efforts directed towards the development of standard concepts, definitions, classifications and methodologies for the collection and collation of fishery statistics. 86 Regional fisheries management organizations87 have also, within their area of competence, contributed to the collection and exchange of scientific information. 82 COP CBD, Report of the Fifth Meeting of the Conference of the Parties to the Convention on Biological Diversity, UN Doc. UNEP/CBD/COP/5/23 (2000), 103 (Decision V/6) and COP CBD, Decision Adopted by the Conference of the Parties to the Convention on Biological Diversity at Its Seventh Meeting: VII/11 Ecosystem Approach, UN Doc. UNEP/CBD/COP/DEC/VII/11 (2004). 83 COP CBD Decision X/29 (note 51), 4 (para. 13(h)). 84 Agenda 21, Ch. 17.87. 85 Arts. XI (5) and XVI Constitution of the Food and Agriculture Organization of the United Nations, 16 October 1945, available at: http://www.fao.org/docrep/meeting/022/k8024e.pdf. 86 For further information, cf. the website of the FAO Fisheries and Aquaculture Department which provides statistics and information on fisheries: http://www.fao.org/fishery/topic/2017/en. 87 See for an overview on fishery organizations specialized in migratory species, Owen on Annex I.

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9. Associated Species Art. 61 is not solely concerned with the conservation of target species. Coastal States are also obliged to take into account the effect of fishing on associated or dependent species (� Art. 61 (4)). These words have been criticized as ‘[having] no firm, generally accepted usage and [being] vague in nature’88 and for qualifying these aspects as mere considerations subject to use concerns.89 Nonetheless, it is suggested that they should be interpreted broadly, particularly in light of the obligation found in Part XII of the Convention whereby States must take measures 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’ (� Art. 194 (5)).90 In other words, it can generally be said that the coastal State must apply the ecosystem approach to its conservation and management measures. This position is supported by interpreting the Convention in light of other developments in international environmental law. In particular, the ecosystem approach to marine resource management is recommended in consensus decisions adopted by the CBD Conference of the Parties, 91 notably the CBD work programme on marine and coastal biodiversity which calls for the identification of key variables or interactions, for the purpose of assessing and monitoring: first, components of biological diversity; second, the sustainable use of such components; and, third, ecosystem effects92 The ecosystem approach is also stressed by the FAO Code of Conduct93 and was adopted as a global goal by the World Summit on Sustainable Development in 2002.94 The principle is elaborated in other more specific instruments such as the International Plan of Action on Seabirds and the International Plan of Action on Bycatch and Discards. These instruments would qualify as generally recommended international minimum standards and they need to be taken into account by coastal States in accordance with Art. 61 (3). 29 One practical outcome of the ecosystem approach is that the coastal State may set an allowable catch not only for species which are directly targeted by a fishery, but also for associated species or so-called by-catch. To this end, Art. 61 (4) mandates coastal States to ‘take into consideration’ effects on associated or dependent species ‘with a view to managing or restoring populations of [these] species above levels at which their reproduction may become seriously threatened.’ This position is supported by the International Guidelines on Bycatch Management and Reduction of Discards which lists ‘limits and/or quotas on bycatches’ amongst the measures that can be taken by States in this regard. 95 The UN General Assembly has urgently called upon States to ‘develop and implement effective management measures to reduce the incidence of catch of non-target species, including utilization of selective fishing gear, where appropriate.’96 Parties to the Convention on Migratory Species urged to assess the risk of bycatch arising from their gillnet fisheries, as it relates to migratory species, and increase efforts to collaborate with regional fisheries 28

88

Attard (note 30), 154. Barnes (note 31), 244. 90 Markowski (note 26), 30–31. 91 COP CBD Decision IV/5 (note 48), 84, 85 (Annex, para. 2). 92 Ibid. 93 FAO, International Guidelines on Bycatch Management and Reduction of Discards (2011), 13 (para. 7.3). The Guidelines were endorsed by the FAO Committee on Fisheries at its 29th session in February 2011, see FAO, Report of the Twenty-Ninth Session of the Committee on Fisheries, FAO Doc. FIPI/R973 (2011), 8–9 (para. 50). 94 Plan of Implementation of the World Summit on Sustainable Development (note 35), 23 (para. 30(d)) and follow-up by GA Res. 65/37 of 7 December 2010, para. 111. 95 COP CBD Decision V/6 (note 82); COP CBD Decision VII/11 (note 82). 96 GA Res. 66/68 of 6 December 2008, para. 84. 89

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management organizations (RFMOs) in this regard97 and they have also adopted action plans with the aim of reducing bycatch in relation to specific migratory species, including sharks98 and sea turtles.99

10. Outlook Although international monitoring of coastal States’ implementation of Art. 61 has not 30 been very systematic, in 2010 CBD parties established a global target that may contribute to closer international scrutiny of State practice in this respect: the target provides that by 2020 all fish is managed and harvested sustainably, legally and applying the ecosystem approach, so that overfishing is avoided, recovery plans and measures are in place for all depleted species, fisheries have no significant adverse impacts on threatened species and vulnerable ecosystems and the impacts of fisheries on stocks, species and ecosystems are within safe ecological limits.100 To this end, CBD parties are called upon to ensure the sustainability of fisheries, by managing the impacts of fisheries on species and the wider ecosystem through implementing the ecosystem approach; minimizing the detrimental impacts of fishing practices; mitigating and managing by-catches sustainably and reducing discards, in order to attain a sustainable exploitation level of marine fishery resources and thereby contributing to a good environmental status in marine and coastal waters; and integrating climate change considerations in that context. 101

Article 62 Utilization of the living resources 1. The coastal State shall promote the objective of optimum utilization of the living resources in the exclusive economic zone without prejudice to article 61. 2. The coastal State shall determine its capacity to harvest the living resources of the exclusive economic zone. Where the coastal State does not have the capacity to harvest the entire allowable catch, it shall, through agreements or other arrangements and pursuant to the terms, conditions, laws and regulations referred to in paragraph 4, give other States access to the surplus of the allowable catch, having particular regard to the provisions of articles 69 and 70, especially in relation to the developing States mentioned therein. 3. In giving access to other States to its exclusive economic zone under this article, the coastal State shall take into account all relevant factors, including, inter alia, the significance of the living resources of the area to the economy of the coastal State concerned and its other national interests, the provisions of articles 69 and 70, the requirements of developing States in the subregion or region in harvesting part of the surplus and the need to minimize economic dislocation in States whose nationals have habitually fished in the zone or which have made substantial efforts in research and identification of stocks. 4. Nationals of other States fishing in the exclusive economic zone shall comply with the conservation measures and with the other terms and conditions established in the laws and regulations of the coastal State. These laws and regulations shall be consistent with this Convention and may relate, inter alia, to the following: 97 COP CMS, Bycatch of CMS-Listed Species in Gillnet Fisheries, UN Doc. UNEP/CMS/Resolution 10.14 (2011). 98 See COP CMS, Memorandum of Understanding on the Conservation of Migratory Sharks, UNEP Doc. CMS/Sharks/Outcome 1.2 (2012), Annex 3 (Conservation Plan). 99 See Memorandum of Understanding on the Conservation and Management of Marine Turtles and their Habitats of the Indian Ocean and South-East Asia Conservation and Management Plan (2009); Conservation and Management Plan for Marine Turtles of the Atlantic Coast of Africa (2008); Single Species Action Plan for the Loggerhead Turtle (Caretta caretta) in the South Pacific Ocean (2014). 100 COP CBD Decision X/2 (note 53), 6 (Annex). 101 COP CBD Decision X/29 (note 51), 12–13 (paras. 64–65, 67).

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(a) licensing of fishermen, fishing vessels and equipment, including payment of fees and other forms of remuneration, which, in the case of developing coastal States, may consist of adequate compensation in the field of financing, equipment and technology relating to the fishing industry; (b) determining the species which may be caught, and fixing quotas of catch, whether in relation to particular stocks or groups of stocks or catch per vessel over a period of time or to the catch by nationals of any State during a specified period; (c) regulating seasons and areas of fishing, the types, sizes and amount of gear, and the types, sizes and number of fishing vessels that may be used; (d) fixing the age and size of fish and other species that may be caught; (e) specifying information required of fishing vessels, including catch and effort statistics and vessel position reports; (f) requiring, under the authorization and control of the coastal State, the conduct of specified fisheries research programmes and regulating the conduct of such research, including the sampling of catches, disposition of samples and reporting of associated scientific data; (g) the placing of observers or trainees on board such vessels by the coastal State; (h) the landing of all or any part of the catch by such vessels in the ports of the coastal State; (i) terms and conditions relating to joint ventures or other cooperative arrangements; (j) requirements for the training of personnel and the transfer of fisheries technology, including enhancement of the coastal State’s capability of undertaking fisheries research; (k) enforcement procedures. 5. Coastal States shall give due notice of conservation and management laws and regulations. Bibliography: David J. Attard, The Exclusive Economic Zone in International Law (1987); William T. Burke, U.S. Fishery Management and the New Law of the Sea, AJIL 76 (1982), 24–55; William T. Burke, Coastal State Fishery Regulation under International Law: A Comment on the La Bretagne Award of July 17, 1986, San DiegoLRev 25 (1988), 495–533; Jean Carrox/Michel Savini, The Practice of Coastal States Regarding Foreign Access to Fishery Resources, in: FAO, Report of the Expert Consultation on the Conditions of Access to the Fish Resources of the Exclusive Economic Zones (1983), Annex 2; Robin R. Churchill/Daniel Owen, The EC Common Fisheries Policy (2010); Carl A. Fleischer, The Exclusive Economic Zone under the Convention Regime and in State Practice, in: Albert W. Koers/Bernard H. Oxman (eds.), The 1982 Convention on the Law of the Sea (1984), 241–285; David Freestone, Implementing Precaution Cautiously: The Precautionary Approach in the Straddling and Highly Migratory Fish Stocks Agreement, in: Ellen Hey (ed.), Developments in International Fisheries Law (1999), 287–325; Amanda Hamilton/Elizabeth Havice/Liam Campling, Fisheries Management, FFA Fisheries Trade News 5(2) (2012); John W. Kindt, The Law of the Sea: Anadromous and Catadromous Fish Stocks, Sedentary Species, and the Highly Migratory Species, Syracuse Journal of International Law and Commerce 11 (1984), 9–46; Marion Markowski, The International Law of EEZ Fisheries (2010); Ted L. McDorman, French Fishing Rights in Canadian Waters: The 1986 La Bretagne Arbitration, International Journal of Estuarine and Coastal Law 4 (1989), 52–64; Stephen Mbithi Mwikya, Fisheries Access Agreements: Trade and Development Issues (2006); Gerald Moore, National Legislation for the Management of Fisheries under Extended Coastal State Jurisdiction, Journal of Maritime Law and Commerce 11 (1980), 153– 182; Sean D. Murphy, United States Practice in International Law, vol. 1 (2011); Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Shigeru Oda, Fisheries under the United Nations Convention on the Law of the Sea, AJIL 77 (1983), ~a, The Exclusive Economic Zone: Regime and Legal Nature under International 739–755; Francisco O. Vicun Law (1989); John Vogler/Charlotte Bretherton, The European Union as a Sustainable Development Actor: the Case of External Fisheries Policy, Journal of European Integration 30 (2008), 401–418; Emma Witbooi, Fishing Rights: A New Dawn for South Africa’s Marine Subsistence Fishers, Ocean Yearbook 19 (2005), 74–104 Documents: European Parliament Directorate-General for Internal Policies, The Role of China in World Fisheries (2012); FAO, State of the World Fisheries and Aquaculture (2010); FAO, Code of Conduct on Responsible Fisheries (1995); FAO, Report of the Expert Consultation on the Conditions of Access to the Fish Resources of the Exclusive Economic Zone, Doc. FIPP/R293 (1983); FAO, Voluntary Guidelines for Securing Small-scale Fisheries in the Context of Food Security and Poverty Eradication (2014); UN Declaration on the

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Rights of Indigenous Peoples, GA Res. 61/295 of 13 September 2007; UN Special Rapporteur on the Right to Food, Interim Report on the Right to Food, UN Doc A/67/268 (2012) Cases: Dispute Concerning Filleting in the Gulf of St Lawrence (France v. Canada), Award of 17 July 1986, ILR 82, 590; ICJ, Fisheries Jurisdiction Case (Federal Republic of Germany v. Iceland), Merits, Judgment of 25 July 1974, ICJ Reports (1974), 175; ITLOS, The M/V ‘Saiga’ (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment of 1 July 1999, ITLOS Reports (1999), 10; ITLOS, The M/V ‘Virginia G’ Case (Panama v. Guinea-Bissau), Judgment of 14 April 2014, available at: http://www.itlos.org/index.php?id=171; ITLOS, Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion of 2 April 2015, available at: https://www.itlos.org/en/cases/list-of-cases/case-no-21/; PCA, South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China), Award of 12 July 2016, available at: https://www.pcacases.com/web/view/7 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘The coastal State shall promote the optimum utilization’ . . . . . . . . . . . . . . . . . . . . . . . 2. ‘shall determine its capacity to harvest […] access to the surplus’ . . . . . . . . . . . . . . 3. ‘In giving access to other States […] the coastal State shall take into account […]’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. ‘Nationals of other States […] shall comply with […] laws and regulations’ . . .

1 3 5 5 6 11 23

I. Purpose and Function Art. 62 provides complementary obligations concerning the exercise of coastal States’ 1 sovereign rights for the purpose of sustainably managing the living natural resources in the exclusive economic Zone (EEZ) (� Art. 56 (1)(a)). Whilst Art. 61 sets out the obligation to conserve fish stocks, Art. 62 focuses on economic and equitable considerations arising from the recognition that fish are a valuable resource which should not be squandered. It was a common position at UNCLOS III that ‘[t]he waste of biological resources which would result from [excluding other non-coastal States from fishing in the EEZ] could not be justified at a time when there was a world shortage of protein.’1 Since the conclusion of UNCLOS, fish has become an even more important source of food for many people. According to the Food and Agriculture Organization (FAO), marine capture fisheries provided about 115 million tonnes of fish for human consumption in 2008 and ‘[g]lobally, fish provides more than 1.5 billion people with almost 20 percent of their average per capita intake of animal protein, and 3.0 billion people with at least 15 per cent of such protein.’2 It is therefore vital that the fisheries regime continues to allow people to have access to this source of nutrition. It is this purpose which is served by the concept of optimum utilization. The underlying function of Art. 62 is to allow other States to have access to fish stocks if 2 the coastal State cannot harvest those stocks itself. It therefore acts as a balance against the allocation of EEZs to coastal States3. The objective of optimum utilization is ‘without prejudice’ to Art. 61 which means that this objective does not remove the need for a State to set an allowable catch based upon, inter alia, the conservation status of a fish stock. Rather Art. 62 regulates access to the allowable catch. Art. 62 introduces an obligation for the coastal State to calculate its own harvesting capacity in order to determine whether there is a surplus in the allowable catch. Art. 62 then indicates both the way in which the coastal State should allocate the surplus of the allowable catch and the conditions which may be attached to access to living resources in its EEZ. Art. 62 must be read in connection with Arts. 69 and 70 1 Statement of Lapointe (Canada), Second Committee UNCLOS III, 29th Meeting, UN Doc. A/CONF.62/C.2/ SR.29 (1974), OR II, 224, 225. See also FAO, Report of the Expert Consultation on the Conditions of Access to the Fish Resources of the Exclusive Economic Zone, Doc. FIPP/R293 (1983), para. 10. 2 FAO, State of the World Fisheries and Aquaculture (2010), 3. 3 For further information, see Proelss on Art. 56.

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which deal with the particular rights of land-locked and geographically disadvantaged States in relation to the living resources of the EEZ.

II. Historical Background 3

The provisions on access to fish stocks and the allocation of fishing rights developed alongside the general framework for fisheries management in the EEZ.4 Once it had been agreed that coastal States would have certain rights to manage fish stocks in their adjacent waters, it became necessary to address the extent of those rights and whether other States would have any access to fish in the EEZ at all. As noted above, many States were concerned about the need to maximize catches in order to satisfy rising demands for food. An early proposal by the United States thus provided that ‘in order to assure the maximum utilization and equitable allocation of coastal and anadromous resources, the coastal State […] may reserve to its flag vessels that portion of the allowable annual catch they can harvest [and] the coastal State shall provide access by other States, under reasonable conditions, to that portion of the resources not fully utilized by its vessels […].’5

Whilst there was little disagreement amongst delegates over the principle of access for other States to the surplus of the allowable catch, there were divergent opinions on which States should have access to fish stocks and whether the Convention should establish a system of hierarchy. The US proposal cited above proposed that priority should be given to ‘States that have traditionally fished for a resource’ followed by ‘other States in the region, particularly landlocked States and other States with limited access to the resources, with whom joint or reciprocal arrangements had been made.’6 Thus, they sought to preserve the status quo prior to the establishment of the EEZ, including their own distant-water fishing fleet. Unsurprisingly, this position was shared by other States which had traditionally engaged in distant water fishing activities. For instance, the Eastern European Socialist States suggested that priority should be given to ‘[S]tates which have borne considerable material and other costs of research, discovery, identification and exploitation of living resource stocks or which have been fishing in the region involved’ followed by ‘developing countries, landlocked countries, countries with narrow access to the sea or with narrow continental shelves, and countries with very limited living resources’, with any other surplus going to ‘all other States without discrimination’.7 In contrast, other States proposed giving priority to developing land-locked States and geographically disadvantaged States.8 The compromise position that was adopted in the negotiating text required the coastal State to ‘take into account all relevant factors’, albeit with no particular priority.9 However, not all States were satisfied with this compromise and the issue remained a point of controversy on the agenda of the Conference. 4 The negotiation of Art. 62 was closely connected with the question of the rights of landlocked and geographically disadvantaged States more generally (� Art. 69; Art 70). As the issue remained unresolved by the seventh session of the Conference in 1978, it was sent to a special negotiating group under the chairmanship of SATYA NANDAN of Fiji. He proposed an amendment to the draft text of Art. 62, providing that the coastal State should have 4 For further information on the development of fisheries in the EEZ, cf. Harrison/Morgera on Art. 61 MN 5 et seq. 5 Sea-Bed Committee, United States: Revised Draft Fisheries Article, UN Doc. A/AC.138/SC.II/L.9 (1972), 2. 6 Ibid. See also Second Committee UNCLOS III, United States of America: Draft Articles for a Chapter on the Economic Zone and the Continental Shelf, UN Doc. A/CONF.62/C.2/L.47 (1974), OR III, 222. 7 Second Committee UNCLOS III, Bulgaria et al.: Draft Articles on the Economic Zone, UN Doc. A/CONF.62/ C.2/L.38 (1974), OR III, 214–216. 8 See Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 627. 9 UNCLOS III, Informal Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/PART II (1975), OR IV, 152, 160 (Article 51).

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‘particular regard’ to the interests of land-locked and geographically disadvantaged States, especially the developing States in those categories.10 The formula was inserted into the Informal Composite Negotiating Text (ICNT) at the eighth session of the Conference in 1978. Despite this change, the land-locked and geographically disadvantaged States continued to express concern that the negotiating text did not meet their needs. 11 These States made further proposals for amendment, but none of them gained sufficient support to justify altering the draft negotiating text. By this stage modifications to the ICNT could only be made if they benefited from ‘widespread and substantial support prevailing in the Plenary’.12 Whilst minor drafting changes were made to what would become Art. 62 in the final sessions of the Conference, the substance of this provision reflected the compromise that had been suggested by NANDAN in 1978.

III. Elements 1. ‘The coastal State shall promote the optimum utilization’ The laconic provision in Art. 62 (1) clarifies that coastal States have an obligation to 5 promote the objective of ‘optimum utilization’ of the living resources in the EEZ. The term ‘optimum utilization’ is not expressly defined by the Convention. Considering the provision in its context, however, it is clear that this phrase is not to be interpreted as the full utilization of the resource.13 Rather, the language of Art. 62 makes clear that it is subordinated to Art. 61 and it follows that ‘optimum utilization’ refers to the optimum utilization of the allowable catch which has been set in accordance with Art. 61. Thus, Art. 62 does not override the obligation on the coastal State to pursue the objective of promoting the maximum sustainable yield.

2. ‘shall determine its capacity to harvest […] access to the surplus’ According to Art. 62 (2), ‘the coastal State shall determine its capacity to harvest the 6 living resources of the exclusive economic zone’ and ‘where [it] does not have the capacity to harvest the entire allowable catch’, it shall ‘give other States access to the surplus of the allowable catch’. The calculation of the surplus is therefore critical for the application of the provisions relating to the idea of optimum utilization and the allocation of fishing rights in the EEZ to other States. Whilst there is a definite obligation on a coastal State to determine its capacity to harvest 7 the living resources of the EEZ, it would appear that the coastal State has a broad discretion in doing so. The concept of ‘harvesting capacity’ is left undefined by the Convention. Perhaps the most obvious way of calculating harvesting capacity is by reference to those nationals of the coastal State involved in harvesting fish stocks in the EEZ. Nationals clearly include natural persons but it may also be interpreted to include fishing vessels flagged in the coastal State (� Art. 91), regardless of the nationality of the crew. 14 The consequence of 10 UNCLOS III, Reports of the Committees and Negotiating Groups on Negotiations at the Resumed Seventh Session, UN Doc. A/CONF.62/RCNG/1 (1978), OR X, 88 (Explanatory Memorandum on the Proposals (NG4/9/ Rev.2) by the Chairman of Negotiating Group 4 – Ambassador Satya Nandan). 11 Nordquist/Nandan/Rosenne (note 8), 633–634. 12 UNCLOS III, Organization of Work: Decisions Taken by the Conference at its 90th Meeting on the Report of the General Committee, UN Doc. A/CONF.62/62 (1978), OR IX, 6, 8 (para. 10). 13 David Freestone, Implementing Precaution Cautiously: The Precautionary Approach in the Straddling and Highly Migratory Fish Stocks Agreement, in: Ellen Hey (ed.), Developments in International Fisheries Law (1999), 287, 301. 14 This is the interpretation of nationals adopted in the 1958 Convention on Fishing and the Conservation of the Living Resources of the High Seas, cf. its Art. 14: ‘the term “nationals” means fishing boats or craft of any size having the nationality of the State concerned, according to the law of that State, irrespective of the nationality of the members of their crews’.

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this wider interpretation is that it opens up the possibility for a coastal State to artificially increase its harvesting capacity by allowing nationals of another State to fish in vessels flying their flag. Yet, such a practice would be completely in accordance with international law. For example, in the Dispute Concerning Filleting within the Gulf of Lawrence, the arbitral tribunal held that ‘the right for a State to determine through its legislation the conditions for the registering of ships in general and fishing vessels in particular falls within the sole competence of the said State, to the extent that there is a substantial link between the State and the ship and that the State of the flag actually exercises its jurisdiction and control over the ships flying its flag.’15

In that case, the tribunal refused to look beyond the fact of registration to determine the origins of the vessel. More recently, the International Tribunal for the Law of the Sea has confirmed in The M/V ‘Saiga’ (No. 2) Case that ‘the purpose of the provisions of the Convention on the need for a genuine link between a ship and its flag State is to secure more effective implementation of the duties of the flag State, and not to establish criteria by reference to which the validity of the registration of ships in a flag State may be challenged by other States.’16

In other words, genuine link does not require the vessel to be owned or operated by a national of the flag State. It follows that ‘each coastal [S]tate is free to introduce foreign capital and to obtain technical assistance from foreign nations, and it is also free to allow any foreign nations or foreign enterprises it chooses to engage in fishing activities through concessionary agreements and to secure the maximum of the total allowable catch for itself.’17

ODA has criticized this aspect of Art. 62 because ‘the principle of access […] to the surplus will eventually become meaningless.’18 The only apparent restriction on the coastal State is that it acts in good faith (� Art. 300)19, although it must be asked whether or not this is a sufficient safeguard against abuse of the right by coastal States. 8 It is not only commercial fisheries which must be taken into account when calculating the harvesting capacity. Indeed, international law may require coastal States to take particular care to protect subsistence fisheries. According to the FAO Code of Conduct 20, States are called upon to ‘guarantee where appropriate, preferential access to subsistence, artisanal and small-scale fisherman to traditional fishing grounds.’21 Furthermore, taking into account human rights instruments and the Convention on Biological Diversity, States must arguably ensure that indigenous peoples and local communities benefit from the management system and are allocated a fair share of fishing rights in order to adequately protect subsistence

15 Dispute Concerning Filleting in the Gulf of St Lawrence (France v. Canada), Award of 17 July 1986, ILR 82, 590 (para. 27). 16 ITLOS, The M/V ‘Saiga’ (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgement of 1 July 1999, ITLOS Reports (1999), 10, para. 83. 17 Shigeru Oda, Fisheries under the United Nations Convention on the Law of the Sea, AJIL 77 (1983), 739, 734. See also David J. Attard, The Exclusive Economic Zone in International Law (1987), 159–160. 18 Ibid., 744. 19 See also Dispute Concerning Filleting within the Gulf of St Lawrence (note 15), para. 27: ‘It should therefore be concluded that the registration of trawlers referred to in Art. 4(b) [of the 1972 Treaty between Canada and France], effected in conformity with the provisions of French legislation, was considered by the Parties, together with the principle of good faith which is of necessity a principal factor in the performance of treaties, as affording a sufficient guarantee against any risk of the French Party exercising its rights abusively.’ See also Attard (note 17), 160. 20 FAO, Code of Conduct on Responsible Fisheries (1995). 21 Art. 6.18 FAO Code of Conduct.

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62

fishing activities and sustainable customary practices. 22 Some States have adopted legislation which explicitly accords fishing rights to subsistence fishing communities. 23 It appears that a coastal State can make a unilateral determination of its harvesting 9 capacity and there is no right for other States to participate in this process. 24 Nor is this likely to be an issue that can be challenged under the dispute settlement procedures in the Convention (� Part XV) as Art. 297 (3)(a) provides that ‘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 living resources in the exclusive economic zone 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.’25

Such disputes may only be submitted to conciliation in accordance with Annex V, Section 2 of the Convention if it is alleged that 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 fishing.’ 26 This provision confirms the broad discretion that coastal States have in determining their harvesting capacity, as decisions of a conciliation commission are not binding.27 It also emerges from practice that the concept of surplus may have ‘played a very limited 10 role’, at least in relation to the European Union’s access agreements 28: with regards to access to EU waters by third-country vessels, this was permitted on a reciprocal basis to maintain existing fishing patterns even if no surplus catch was available in EU waters; and with respect to EU vessels access to third-country waters, access agreements were concluded without being explicitly based on access to the surplus but rather other criteria. 29

3. ‘In giving access to other States […] the coastal State shall take into account […]’ If a coastal State determines that there is a surplus, it must decide how to allocate that 11 surplus to other States. In this regard, Art. 63 (3) provides that in allocating the surplus of its allowable catch, ‘the coastal State shall take into account all relevant factors’. The provision lists several such factors, including the significance of the living resources to the local economy of the coastal State and its other national interests, the rights of land-locked and geographically disadvantages States (� Art. 69; Art. 70), the requirements of developing States, and the need to minimize economic dislocation in States whose nationals have habitually fished in the zone or which have made substantial efforts in research and identification of stocks. It is clear that this list is illustrative and other relevant factors can be taken into account.30 Of perhaps greater significance is the lack of any explicit hierarchy. 22 Art. 1 (2) International Covenant on Economic, Social and Cultural Rights; Art. 26 UN Declaration on the Rights of Indigenous Peoples, GA Res. 61/295 of 13 September 2007; FAO, Voluntary Guidelines for Securing Small-scale Fisheries in the Context of Food Security and Poverty Eradication (2014); and Art. 10 (c) of the Convention on Biological Diversity, which provides that ‘each Contracting Party shall, as far as possible and appropriate, […] protect and encourage customary usage of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements’. See discussion in: UN, Report of the Special Rapporteur on the Right to Food, UN Doc. A/67/268 (2012) and Marion Markowski, The International Law of EEZ Fisheries (2010), 89–90 and 100–101. 23 See South Africa’s Marine Living Resources Act 1998, as discussed in Emma Witbooi, Fishing Rights: A New Dawn for South Africa’s Marine Subsistence Fishers, Ocean Yearbook 19 (2005), 74–104. 24 Attard (note 17), 159 and 165. 25 Emphasis added. 26 Art. 297 (3)(b)(ii). For further information, see Serdy on Art. 297 MN 20–23. 27 Art. 7 (2) Annex V UNCLOS. Moreover, Art. 8 of Annex V confirms that parties to a dispute have the right to reject the proposals of the Conciliation Commission. 28 Robin R. Churchill/Daniel Owen, The EC Common Fisheries Policy (2010), 330. 29 Ibid. 30 Nordquist/Nandan/Rosenne (note 8), 637.

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Part V. Exclusive economic zone

As noted above, several proposals were made at UNCLOS III to introduce a hierarchy but none were successful. The result is, in the words of one author, that the coastal State has ‘the broadest discretion to decide to whom and under what conditions access will be ~A notes that ‘it is precisely because this discregranted’.31 In this regard, ORREGO VICUN tionary power is linked to the sovereign and exclusive nature of the coastal State’s rights that the chief criterion that will guide the granting of access will be its own national interest.’32 12 One of the effects of Art. 62 (3) is to extinguish any historical rights to fish that other States may have previously had in coastal waters prior to the establishment of the EEZ. This differs from the position adopted by the International Court of Justice in the Fisheries Jurisdiction Case (Federal Republic of Germany v. Iceland) where a condition for Iceland extending its jurisdiction was to recognize the rights of those States which had historically fished in the vicinity of its coast.33 In contrast, there is no automatic right under UNCLOS to continue fishing in waters where fishing has traditionally taken place. Rather, such States are but one category of States which may be permitted access to the surplus under Art. 62 (3). This interpretation of Art. 62 was confirmed by the Tribunal in the South China Sea Arbitration, which noted that ‘the notion of sovereign rights over living and non-living resources is generally incompatible with another State having historic rights to the same resources.’34 13 The only possible indication of any hierarchy in Art. 62 (3) is the requirement that the coastal State should have ‘particular regard to the provisions of articles 69 and 70, especially in relation to the developing States mentioned therein’. Arts. 69 and 70 deal with the rights of land-locked and geographically disadvantaged States in relation to the living resources of the EEZ. Yet, the cross-reference to these provisions falls short of granting a preference to land-locked and geographically disadvantaged States in allocating the surplus of the allowable catch. Taking into account the language of the provision, as well as the breadth of the discretion of coastal States, it would seem reasonable to conclude that ‘the variety of considerations which the coastal State may entertain in giving other States the right of access to the surplus of the living resources of its exclusive economic zone confirms that this right of access is a relative right’.35

Moreover, in practice, ATTARD has observed that ‘there is no firm evidence to support this view that the consideration accorded to the rights of [land-locked and geographically disadvantaged States] referred to in Article 62 (3) is taken into account by [S]tates.’36 14 Indeed, there is a question whether the surplus must be allocated at all by the coastal State. The inclusion of ‘the importance of the living resources of the area to the economy of the coastal State’, as well as its ‘other national interests’, in the list of factors to be taken into account by the coastal State suggests that there may be situations where the coastal State might legitimately decide not to allocate the surplus to another State, at least temporarily. It is these factors which would explain the practice of some States in withholding part of the allowable catch as a reserve against the possible increase in their harvesting capacity at a later stage in the fishing season. Whilst some commentators have questioned the legality of such a ~a, The Exclusive Economic Zone: Regime and Legal Nature under International Law 31 Francisco O. Vicun (1989), 54. 32 Ibid., 54–55. 33 ICJ, Fisheries Jurisdiction Case (Federal Republic of Germany v. Iceland), Merits, Judgment of 25 July 1974, ICJ Reports (1974), 175, para. 61. 34 PCA, South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China), Award of 12 July 2016, para. 243, available at: https://www.pcacases.com/web/view/7. See also paras. 800–804, in which the Tribunal distinguishes the position of customary fishing rights in the territorial sea and archipelagic waters on the one hand and in the exclusive economic zone on the other hand. 35 Nordquist/Nandan/Rosenne (note 8), 636–637 (MN 62.16(g)). 36 Attard (note 17), 169.

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practice37, it can be explained on the basis of the importance of economic factors or other national interests which are legitimate factors for the coastal State to take into account in deciding how to allocate its surplus. Current practice indicates that coastal States’ laws do not specify any factors to be taken 15 into account in allocating the surplus,38 so that it is left entirely to negotiations with States seeking access to the EEZ. Negotiations may take place with the flag State or in some circumstances the coastal State may negotiate directly with fishing operators. In the case of State-to-State negotiations, it is common for the States concerned to conclude an access agreement. There are two principal types of such agreement. 39 Firstly, agreements may provide a medium term framework for fisheries cooperation which set general principles but require specific decisions concerning access to be made on an annual basis, either by agreement between the parties or unilaterally by the coastal State. Alternatively, an access agreement may be a self-contained agreement which specifies the details of the access offered by the coastal State in the agreement itself, including the number of vessels authorized and the payment to be made. In the majority of cases, developing States’ EEZ are accessed by distant-water fishing fleets 16 from developed countries, so questions have emerged as to the unequal bargaining power in the negotiations on access. In particular the General Assembly has called for access agreements with developing countries ‘on equitable and sustainable basis’ with a view to assisting the realization of the benefits from the development of fisheries resources in developing States. 40 As a major distant water fishing entity, the EU provides an important source of practice 17 concerning the conclusion of access agreements. In the past, the EU has simply entered into agreements to pay coastal States in return for access to their fish stocks. The more recent practice of the EU reflects a more serious regard for the needs of developing countries to benefit from the arrangement and general cooperation agreements between the EU and developing countries increasingly seek to promote the sustainable utilization of fish stocks within the coastal State. For instance, in the Cotonou Agreement between the EU and its Member States, and 77 African, Caribbean and Pacific (ACP) countries, parties – which include ‘nearly all developing States’ with which the EU concluded access agreements41 – ‘expressed their willingness’ to negotiate fisheries agreements aimed at guaranteeing ‘sustainable’ and mutually satisfactory conditions for fishing activities in ACP States.42 In its 2010 version, the Cotonou Agreement further provides that, with reference to marine resources within the EEZs of ACP States, cooperation aims at further developing these sectors in ACP countries to increase the associated social and economic benefits in a sustainable manner in light of the contribution of these sectors to employment creation, revenue generation, food security, livelihoods of rural and coastal communities and poverty reduction. The agreement identifies in detail the cooperation activities to be undertaken to this end, including: development and implementation of national and regional sustainable aquaculture and fisheries development strategies and management plans; mainstreaming of aquaculture and fisheries into national and regional development strategies; and the development of joint ventures for investment in the sector. Notably, the 37 John W. Kindt, The Law of the Sea: Anadromous and Catadromous Fish Stocks, Sedentary Species, and the Highly Migratory Species, Syracuse Journal of International Law and Commerce 11 (1984), 9, 30: ‘By precluding foreign fishermen from catching the available surplus of U.S fish, this provision appears to violate the letter and spirit of article 62 of the LOS Convention’ See the more nuanced comments of William T. Burke, U.S. Fishery Management and the New Law of the Sea, AJIL 76 (1982), 24, 39. 38 Markowski (note 22), 67. 39 See Jean Carrox/Michel Savini, The Practice of Coastal States Regarding Foreign Access to Fishery Resources, in: FAO Fish Resources Report (note 1), Annex 2. 40 GA Res. 61/105 of 6 March 2007, para. 100. 41 Churchill/Owen (note 28), 345. 42 Partnership Agreement between the Members of the African, Caribbean and Pacific Group of States of the One Part, and the European Community and Its Member States, of the Other Part, Signed in Cotonou on 23 June 2000, OJEU 2000, L 317/3 (Cotonou Agreement). See Art. 23 of its 2010 revision at: http://ec.europa.eu/ development/icenter/repository/second_revision_cotonou_agreement_20100311.pdf.

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Part V. Exclusive economic zone

new provision anticipates a high-level consultation, including at ministerial meetings, upon joint agreement with a view to developing, improving or strengthening ACP-EU development cooperation in this sector. It also requires that any fisheries agreements that may be negotiated between the EU and ACP States pay due consideration to consistency with development strategies in this area. 18 Turning to the EU’s practice concerning fisheries access agreements themselves, the EU has attempted to shift from a so-called practice of ‘pay, fish and leave’ bilateral access agreements to a new generation of ‘Fisheries Partnerships Agreements’, launched in 2002, that aims to provide a legal basis through policy dialogue about sensitive sustainability issues with developing coastal States.43 These agreements thus aim to strengthen cooperation between the EU and third States in the promotion of sustainable fisheries in the third-State waters through the joint monitoring of the State of fisheries resources by a joint scientific committee and consultations on sustainable fisheries measures. 44 According to these agreements, the EU financial contribution is to be divided between payment for access and support for fisheries management activities in the coastal State, with a defined percentage of payment to be devoted to the promotion of conservation of resources and sustainable development in the coastal State.45 These agreements, however, have been criticised for their limited attention to subsistence fisheries in coastal States. 46 19 Although it is not a party to the Convention, the practice of the United States concerning allocation of fisheries surplus also provides an interesting illustration of the manner in which this power can be used. The relevant domestic legislation explicitly provides that ‘allocations of [the total allowable level of foreign fishing] are discretionary’47 and ‘the Secretary of State […] determines the allocation among foreign nations of fish species and species groups.’ 48 National laws dictate a number of considerations to be taken into account when determining access to fish stocks in United States waters, which not only include issues mentioned in the Convention, such as ‘whether, and to what extent, the fishing vessels of such nation have traditionally engaged in fishing in such fishery’49 and ‘whether, and to what extent, such nation requires the fish harvested from the exclusive economic zone for its domestic consumption’50, but also issues related to trade51 and cooperation in the enforcement of fisheries regulations.52 Indeed, the so-called Packwood Amendment requires the Secretary of State to reduce access to US fish stocks by 50 % if a foreign fishing vessel is flagged in a country which is certified as ‘conducting fishing operations or engaging in trade or taking which diminishes the effectiveness of the International Convention for the Regulation of Whaling.’53 The threat of certification and withdrawal of access to fisheries resources was used by the United States in the 1980s as a means to persuade Japan to withdraw its reservations to the moratorium on commercial whaling. 54 This power was subsequently exercised when Japan commenced its scientific whaling programme in 1987, but as noted by one commentator, ‘the action was less significant as it appeared [as] the U.S. fisherymanagement councils already had concluded that the fish stocks in the U.S. fisheryconservation zone were too low [and] Japan had consequently not been allocated a quota 43 See generally, Churchill/Owen (note 28); reference to Fisheries Partnership Agreements can be found in the Art. 53 (1) Cotonou Agreement. 44 Churchill/Owen (note 28), 346–348. 45 Ibid., 348. 46 John Vogler/Charlotte Bretherton, The European Union as a Sustainable Development Actor: the Case of External Fisheries Policy, Journal of European Integration 30 (2008), 401. 47 § 600.516(a) Magnuson-Stevens Fishery Conservation and Management Act (US). 48 § 600.517 Magnuson-Stevens Fishery Conservation and Management Act (US). 49 16 US Code § 1824(e)(1)(E)(vi). 50 16 US Code § 1824(e)(1)(E)(iv). 51 16 US Code § 1824(e)(1)(E)(i) and (ii). 52 16 US Code § 1824(e)(1)(E)(iii). 53 16 US Code § 1824(e)(2). 54 See Sean D. Murphy, United States Practice in International Law, vol. 1 (2011), 171–172.

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for 1988.’55 Nevertheless, this example illustrates the exercise of fisheries quotas as a tool to promote a range of policy objectives, which would seem to be compatible with the provisions of the Convention. The United States has also used fisheries access agreements to the benefit of its distant- 20 water fishing fleet. The most important of these agreements is the Treaty on Fisheries between the Governments of Certain Pacific Island States and the Government of the United States of America.56 The treaty applies to the waters of several States in the Pacific, including Australia, the Cook Islands, the Federated States of Micronesia, Fiji, Kiribati, the Marshall Islands, Nauru, New Zealand, Niue, Palau, Papua New Guinea, the Solomon Islands, Tonga, Tuvalu, Vanuatu, and Western Samoa. Under the agreement, US fishing vessels are permitted to engage in fishing in the waters of the Pacific Island parties in accordance with the terms and conditions contained in annexes to the treaty57, whereas the United States agrees to ‘cooperate with the Pacific Island parties through the provision of technical and economic support to assist the Pacific Island parties to achieve the objective of maximizing benefits from the development of their fisheries resources.’58 The economic benefits include a lump-sum access fee59 and the treaty also specifies that US vessels should use, as appropriate, the canning, transshipment, slipping and repair facilities located in the Pacific Island parties, purchase as appropriate equipment and supplies form these parties, and employ as appropriate nationals from the parties on board US fishing vessels.60 The treaty first entered into force in 1988 and its application was provisionally extended on a number of occasions. A revised version of the treaty was agreed in principle in June 2016, although it is subject to further review before it can be opened for signature.61 China, Korea and Japan are also all significant distant-water fishing nations but informa- 21 tion concerning their practice is more difficult to come by as access agreements are not necessarily published. Generally speaking, one source suggests that ‘most of this access is based on the payment of license fees by individual vessels to coastal countries, rather than a broad country-to-country agreement.’62 Like other discretionary decisions of the coastal State relating to EEZ fisheries, decisions 22 concerning the allocation of the surplus are not subject to binding dispute settlement (� Art. 297 (3)(a)).

4. ‘Nationals of other States […] shall comply with […] laws and regulations’ When a coastal State does allocate fishing rights to other States in the EEZ, the Convention 23 leaves no doubt that the coastal State maintains the right to regulate the foreign vessels fishing in its waters. In particular, Art. 62 (4) makes clear that nationals of other States must comply with the conservation measures adopted by the coastal State under Art. 61 and with ‘the other terms and conditions established in the laws and regulations of the coastal State’. The paragraph goes on to list a series of subjects which may be regulated by the coastal State, including licensing, quotas, and other specific regulations relating to fishing vessels and fishing gear. 55

Ibid., 172. Treaty on Fisheries between the Governments of Certain Pacific Island States and the Government of the United States of America, 2 April 1987, UNTS 2176, 93. 57 Art. 3 (1) Treaty on Fisheries between the Governments of Certain Pacific Island States and the Government of the United States of America. 58 Art. 2 (1) Treaty on Fisheries between the Governments of Certain Pacific Island States and the Government of the United States of America. 59 Stephen Mbithi Mwikya, Fisheries Access Agreements: Trade and Development Issues (2006), 7. 60 Art. 2 (2) Treaty on Fisheries between the Governments of Certain Pacific Island States and the Government of the United States of America. 61 See Press Release from the US Department of State, 29 June 2016, available at http://www.state.gov/r/pa/prs/ ps/2016/06/259201.htm. 62 Mwikya (note 59), 8. For further information, see supra, MN 9. 56

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Part V. Exclusive economic zone

The inclusion of the term ‘inter alia’ makes clear that this list is illustrative and coastal States may adopt other forms of law and regulations, provided they are consistent with the Convention. At the same time, the coastal States powers are not unlimited. As noted by the arbitral tribunal in the Dispute Concerning Filleting in the Gulf of St Lawrence, ‘although the list is not exhaustive, it does not appear that the regulatory authority of the coastal State normally includes the authority to regulate subjects of a different nature than those described’.63 In that case, there was a dispute concerning whether Canada could regulate the filleting of fish by French freezer trawlers in the Gulf of St Lawrence. The tribunal indicated that, in its opinion, ‘the regulation of filleting at sea cannot a priori be justified by coastal State powers under the [UNCLOS].’64 This interpretation of the Convention has been criticized as being too restrictive by many commentators 65 and it arguably gives too little weight to the fact that the Convention permits a broad range of coastal State regulations including some regulations that do not relate directly to fishing activity itself, such as requiring that all or part of the catch is landed in the ports of the coastal State(� Art. 62 (4)(h)). Nevertheless, the point that coastal State powers in the EEZ are not unlimited is undoubtedly correct (� Art. 56). Indeed, more recent tribunals appear to have adopted a broader understanding of the right to regulate living resources in the EEZ. Drawing upon relevant State practice and international treaties, the International Tribunal for the Law of the Sea (ITLOS) confirmed in The M/V ‘Virginia G’ Case that the power to regulate fishing under Part V of the Convention extends to the regulation of bunkering of fishing vessels. 66 25 The precise terms and conditions attached to access will depend on the arrangements between the coastal State and the State requesting access. In some cases, such terms and conditions are negotiated between the two parties, whereas in other cases the terms and conditions are set unilaterally by the coastal State.67 In the latter case, it may be against the requirement of good faith (� Art. 300) if the coastal State’s regulations in effect preclude other States from taking the surplus allocation. In other words, these requirements are expected to be reasonable and relate to legitimate conservation and management goals, taking into account alternative measures.68 26 Art. 62 (4)(a) makes a particular reference to ‘the payment of fees and other forms of remuneration’ which makes it clear that a coastal State can demand compensation for the right to fish in its EEZ. Whilst the Convention mentions ‘compensation in the field of financing, equipment and technology relating to the fishing industry’ (� Art. 62 (4)(a), it is common practice for States to accept other forms of compensation that are not at all related to fishing. 69 24

63 Dispute Concerning Filleting within the Gulf of St Lawrence (note 15), para. 52. See also Carl A. Fleischer, The Exclusive Economic Zone under the Convention Regime and in State Practice, in: Albert W. Koers/Bernard H. Oxman (eds.), The 1982 Convention on the Law of the Sea (1984), 241, 275: ‘it seems reasonable to conclude that the regulatory powers of a coastal [S]tate cannot be unlimited. For example, it may not freely issue and enforce rules on the construction and equipment of foreign vessels that would make it impossible in practice to enjoy fishing rights existing under international law’. Nevertheless, Fleischer concludes that the regulatory authority of the coastal State is ‘intended to be rather broad’, ibid., 276. 64 Dispute Concerning Filleting within the Gulf of St Lawrence (note 15), para. 52. 65 Indeed, the dissenting arbitrator in the case found that ‘[t]here is no doubt that, in the absence of any agreement or arrangement to the contrary, the coastal State may regulate processing, including filleting’, Dispute Concerning Filleting within the Gulf of St Lawrence (note 15), Dissenting Opinion of Donat Pharand, para. 17. See also Ted L. McDorman, French Fishing Rights in Canadian Waters: The 1986 La Bretagne Arbitration, International Journal of Estuarine and Coastal Law 4 (1989) 52, 58–59; William T. Burke, Coastal State Fishery Regulation under International Law: A Comment on the La Bretagne Award of July 17, 1986, San DiegoLRev 25 (1988), 495, 502–503. 66 ITLOS, The M/V ‘Virginia G’ Case (Panama v. Guinea-Bissau), Judgment of 14 April 2014, para. 217, available at: http://www.itlos.org/index.php?id=171. 67 See FAO Fish Resources Report (note 1), para. 11. 68 Markowski (note 22), 142–146. 69 See e. g. Attard (note 17), 173–174. He gives the interesting example of the 1974 Mauritania/Greece Fisheries Agreement under which Greek vessels had to pay a fee based on tonnage and the Greek government also agreed to build a hotel. See also Gerald Moore, National Legislation for the Management of Fisheries under Extended Coastal State Jurisdiction, Journal of Maritime Law and Commerce 11 (1980), 153.

504

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Utilization of the living resources

27–28

Art. 62

A major problem has arisen with the enforcement of laws and regulations against foreign 27 fishing vessels. Generally, a foreign fishing vessel which has been allowed access to resources within the EEZ is subject to the full authority of the coastal State, subject to some limitations set out in Art. 73.70 Indeed, ‘in light of the special rights and responsibilities given to the coastal State in the [EEZ] under the Convention, the primary responsibility for taking the necessary measures to prevent, deter and eliminate [illegal, unreported and unregulated (IUU)] fishing rests with the coastal State.’71 In practice, however, many developing coastal States do not have the financial or technical resources to effectively enforce their law and regulations and IUU fishing by foreign vessels is a significant issue. 72 In this regard, the EU’s fisheries access agreements have been criticised for the failure of EU vessels to observe third States’ fisheries legislation and applicable EU law.73 While EU law on fisheries conservation applies to EU vessels fishing in third-State waters, including with regard to driftnets, shark finning and encircling of marine mammals with purse seine nets, it has been argued that in case of a conflict with the third State’s laws, the latter would prevail. 74 The vessels of other distant fishing nations have also been criticized for IUU fishing. 75 The Treaty on Fisheries between the Governments of Certain Pacific Island States and the Government of the United States expressly addresses this issue by specifically for continuing flag State responsibility. Art. 4 of that treaty provides that ‘the Government of the United States shall take the necessary steps to ensure that nationals and fishing vessels of the United States refrain from fishing in the Licensing Area and in waters closed to fishing pursuant to Annex I, except as authorized in accordance with Article 3’, including taking reasonable measures to assist the Pacific Island parties in investigations of any alleged breach of the treaty or bringing proceedings itself against the delinquent vessel. The ITLOS recently confirmed that flag States retain some responsibility under the 28 Convention for ensuring compliance by their vessels with the laws and regulations adopted by the coastal State. In its SRFC Advisory Opinion, delivered on 2 April 2015, the Tribunal held that ‘article 62, paragraph 4, of the Convention imposes an obligation on States to ensure that their nationals engaged in fishing activities within the exclusive economic zone of a coastal State comply with the conservation measures and with the other terms and conditions established in its laws and regulations.’76

They clarified that this is a due diligence obligation, which requires the flag State to ‘take all necessary measures to ensure compliance and to prevent IUU fishing by fishing vessels flying its flag.’77 The Tribunal identified a number of necessary measures, including ensuring that its vessels are properly marked, adopting legislation prohibiting its vessels from fishing in the EEZ of another state without authorization, and developing enforcement mechanisms to monitor and secure compliance with these laws, including sanctions that are ‘sufficient to deter violations and to deprive offenders of the benefits accruing from their IUU fishing activities.’78 The explicit identification of this duty may go some way to addressing deficiencies in enforcement by the 70

For further information, see Harrison on Art. 73. ITLOS, Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion of 2 April 2015, para. 106, available at: https://www.itlos.org/en/cases/list-of-cases/case-no-21/. 72 See European Parliament Directorate-General for Internal Policies, The Role of China in World Fisheries (2012), 72–73. 73 Churchill/Owen (note 28), 348–349. 74 Ibid., 332–333. 75 See e. g. The Role of China in World Fisheries (note 72), 72–73. 76 SRFC Advisory Opinion (note 71), para. 123. 77 Ibid., para. 129. 78 Ibid., para. 138. See also The South China Sea Arbitration (note 34), paras. 740–744, supporting the existence of a due diligence obligation on flag states to control the activities of vessels flying their flag when fishing in the exclusive economic zone of another state. A closer reading reveals the Tribunal adopts a slightly different interpretation of Art. 62(4), which it finds ‘imposes an obligation directly on private parties engaged in fishing […]’ (para. 741). 71

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coastal State, but it is also necessary to work out precisely how the responsibilities of flag State interface with the responsibilities of the coastal State in this context. 29 Art. 62 (5) requires the coastal State to give ‘due notice’ of conservation and management laws and regulations. It does not specify what form this due notice must take and it may presumably be satisfied by the publication of laws and regulations. 79

Article 63 Stocks occurring within the exclusive economic zones of two or more coastal States or both within the exclusive economic zone and in an area beyond and adjacent to it 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 coordinate 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 fishing for such stocks in the adjacent area shall seek, either directly or through appropriate subregional or regional organizations, to agree upon the measures necessary for the conservation of these stocks in the adjacent area. Bibliography: David H. Anderson, Straddling and Highly Migratory Fish Stocks, MPEPIL, available at: http:// www.mpepil.com; David J. Attard, The Exclusive Economic Zone in International Law (1987); Kaare Bangert, Fisheries Agreements, MPEPIL, available at: http://www.mpepil.com; Kaare Bangert, Fish Stocks, MPEPIL, available at: http://www.mpepil.com; Donna R. Christie, The Conservation and Management of Stocks Located Solely within the Exclusive Economic Zone, in: Ellen Hey (ed.), Developments in International Fisheries Law (1999), 395–419; Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); Robin R. Churchill, Managing Straddling Fish Stocks in the North-East Atlantic: A Multiplicity of Instruments and Regime Linkages – but How Effective a Management?, in: Olav Schram Stokke (ed.), Governing High Seas Fisheries: The Interplay of Global and Regional Regimes (2001); David Freestone, Implementing Precaution Cautiously: The Precautionary Approach in the Straddling and Highly Migratory Fish Stocks Agreement, in: Ellen Hey (ed.), Developments in International Fisheries Law (1999), 287–325; James Harrison, Making the Law of the Sea (2011); Tore Henriksen, Revisiting the Freedom of Fishing and Legal Obligations of States not Party to Regional Fisheries Management Organizations, ODIL 40 (2009), 80–96; Ellen Hey, The Regime for the Exploitation of Transboundary Marine Fisheries Resources (1989); Moritaka Hayashi, The Straddling and Highly Migratory Fish Stocks Agreement, in: Ellen Hey (ed.), Developments in International Fisheries Law (1999), 55–83; John W. Kindt, The Law of the Sea: Anadromous and Catadromous Fish Stocks, Sedentary Species, and the Highly Migratory Species, SJILC 11 (1984), 9–46; Barbara Kwiatkowska, The High Seas Fisheries Regime: At a Point of No Return?, IJMCL 8 (1993), 327–358; Jean-Jacques Maguire/Michael Sissenwine/Jorge Csirke/Richard Grainer/Serge Garcia, The State of World Highly Migratory, Straddling and Other High Seas Fishery Resources and Associated Species: FAO Fisheries Technical Paper 495 (2006); Marion Markowski, The International Law of EEZ Fisheries (2010); L. Dolliver M. Nelson, Exclusive Economic Zone, MPEPIL, available at: http://www.mpepil.com.; L. Dolliver M. Nelson, The Development of the Legal Regime of High Seas Fisheries, in: Alan Boyle/David Freestone (eds.), International Law and Sustainable Development (1999), 113–134; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993) Documents: European Commission, Impact Assessment Accompanying the Proposal for a Regulation of the European Parliament and of the Council on Certain Measures Directed to Non-Collaborating Countries for the Purpose of the Conservation of Fish Stocks, SEC(2011) 1576 final (2011); Secretary-General, The Status and Implementation of the Agreement for the Implementation of the Provisions of the United Nations Convention for the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (the Fish Stocks Agreement) and Its Impact on Related or Proposed Instruments Throughout the United Nations System, with Special Reference to Implementation of Part VII of the 79 The term ‘due notice’ is frequently used within the Convention, see e. g. � Arts. 51 (2), 60 (3), (5), 147 (2)(a).

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Stocks occurring within the EEZ of two or more coastal States

1–2

Art. 63

Fish Stocks Agreement, Dealing With the Requirements of Developing States, UN Doc. A/58/215 (2003); UNCED, Report of the United Nations Conference on the Environment and Development, UN Doc. A.CONF/ 151/26/REV.1 (Vol. I) (1992), 9–479 (Agenda 21) Cases: ITLOS, Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion of 2 April 2015, available at: https://www.itlos.org/en/cases/list-of-cases/case-no-21/; PCA (Arbitral Tribunal Constituted Under Annex VII UNCLOS), Atlanto-Scandian Herring Arbitration (The Kingdom of Denmark in Respect of the Faroe Islands/European Union), Termination Order of 23 September 2014, available at: http://www.pcacases.com/web/view/25; WTO, European Union – Measures on Atlanto-Scandian Herring, Joint Communication from Denmark in respect of the Faroe Islands and the European Union of 21 August 2014, WT/DS469/3 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 1. ‘stocks […] occur[ing] within the exclusive economic zone of two or more coastal States’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 2. ‘stocks […] occur[ing] both within the exclusive economic zone and in an area beyond and adjacent to the zone’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 3. ‘associated species’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 4. ‘States shall seek, either directly or through appropriate […] organizations, to agree upon the measures necessary for the conversation’ . . . . . . . . . . . . . . . . . . . . . . . 12

I. Purpose and Function Art. 63 singles out two groups of resources that do not occur exclusively within the 1 exclusive economic zone (EEZ) of a single coastal State, namely transboundary stocks – that is stocks that occur within the EEZ of two or more coastal States and straddling stocks, i. e. stocks that occur both within the EEZ of the coastal State and in the adjacent high seas.1 For these stocks, arrangements additional to the coastal State’s measures (� Art. 61) are required to ensure effective conservation and management. 2 Art. 63 sets out specific requirements concerning transboundary cooperation between coastal States, in relation to transboundary stocks, and between coastal and other States fishing straddling stocks in adjacent high seas. These obligations also apply to associated species. These obligations are considered ‘part at least of the general principles of international law, if not of international custom’.3 Both provisions contained in Art. 63 create an obligation to enter into negotiations 2 (pacta de negotiando) rather than an obligation to reach an agreement (pacta de contrahendo); thus they require coastal States to ‘enter into negotiations in good faith, respond to genuine attempts at negotiations, and to be prepared to modify their original positions.’ 4 The International Tribunal for the Law of the Sea (ITLOS), classifying these as due diligence obligations, has also held that: 1 Note that the Convention does not use these terms. However, see David H. Anderson, Straddling and Highly Migratory Fish Stocks, MPEPIL, para. 2, available at: http://www.mpepil.com. For a discussion of the difference between biological and legal concepts of stocks, as well as the inconsistent use of the term stock (as opposed to species) in the Convention and other relevant international agreements, see Kaare Bangert, Fish Stocks, MPEPIL, paras. 1–6, available at: http://www.mpepil.com. 2 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 641. 3 Marion Markowski, The International Law of EEZ Fisheries (2010), 55. 4 Ellen Hey, The Regime for the Exploitation of Transboundary Marine Fisheries Resources (1989), 116–118 and 158–159; Markowski (note 3), 51; Nordquist/Nandan/Rosenne (note 2), 646. See also ITLOS, Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion of 2 April 2015, para. 210 where the Tribunal says that this provision requires ‘the States concerned to consult with one another in good faith, pursuant to article 300 of the Convention’, available at: https://www.itlos.org/en/cases/listof-cases/case-no-21/ For further information on the concept of good faith, see O’Brien on Art. 300.

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3–4

Part V. Exclusive economic zone

‘the consultations should be meaningful in the sense that substantial effort should be made by all States concerned, with a view to adopting effective measures necessary to coordinate and ensure the conservation and development of shared stocks’.5

Failure to comply could lead to international responsibility and it has been noted that: ‘any dispute arising from the alleged failure to comply with the obligation under article 63, paragraph 1, of the Convention, unlike those disputes arising from the exercise of sovereign rights of the coastal State with respect to the living resources in its EEZ, can be submitted to the compulsory procedure under Part XV, section 2, of the Convention.’6

II. Historical Background 3

The problem of straddling fish stocks had already been recognized at UNCLOS I, and it received an innovative solution in the 1958 Convention on Fishing and the Conservation of the Living Resources of the High Seas (High Seas Fishing Convention). The High Seas Fishing Convention recognized that coastal States had a ‘special interest’ in the management of fish stocks in waters adjacent to their territorial sea 7, and it provided that ‘any coastal State may, with a view to the maintenance of the productivity of the living resources of the sea, adopt 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, provided that negotiations to that effect with the other States concerned have not led to an agreement within six months.’ 8

Such unilateral measures were under the conditions laid down in Art. 7 (2) High Seas Fishing Convention binding on other member States. At the same time, the High Seas Fishing Convention established a special procedure whereby other States could challenge any unilateral measures adopted by a coastal State through a special commission.9 These provisions aimed to ensure an effective regime for the conservation of fish stocks in coastal waters and compatibility between measures taken by the coastal State and other fishing States. They were, however, highly controversial and the High Seas Fishing Convention received the lowest rate of acceptance amongst the instruments adopted at UNCLOS I.10 4 Even though States had agreed to extend the fisheries jurisdiction of coastal States at UNCLOS III,11 the question of compatibility between conservation measures taken by coastal States and other fishing States still arose in the negotiations concerning the EEZ. At the 1972 session of the Sea-Bed Committee, a working paper was submitted by Canada suggesting that an appropriate management mechanism for ‘wide-ranging species’ could be an ‘international authority’.12 The drafters then considered alternative approaches such as favoring close consultation between international institutions and coastal States or simply cooperation.13 A proposal to allow invoking the dispute settlement mechanism of the Convention to determine measures to be applied in adjacent areas for the conservation of straddling stocks where no agreement on such measures could be reached by parties concerned was eventually withdrawn at the eleventh session of UNCLOS III14 and States settled on a provision which simply required cooperation between relevant States. The 5

SRFC Advisory Opinion (note 4), para. 210. SRFC Advisory Opinion (note 4), Separate Opinion of Judge Paik, para. 38. 7 Art. 6 (1) High Seas Fishing Convention. 8 Art. 7 (1) High Seas Fishing Convention. 9 Arts. 7 (4) and 9 High Seas Fishing Convention. 10 See Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 479–480 (Appendix 2, Table B). 11 For further information, see Proelss on Art. 55 MN 7–13. 12 Sea-Bed Committee, Management of the Living Resources of the Sea: Working Paper Submitted by the Delegation of Canada, UN Doc. A/AC.138/SC.II./L.8 (1972), 3 (para. d). 13 Nordquist/Nandan/Rosenne (note 2), 641–645. 14 L. Dolliver M. Nelson, Exclusive Economic Zone, MPEPIL, para. 55, available at: http://www.mpepil.com. 6

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Stocks occurring within the EEZ of two or more coastal States

5–6

Art. 63

result is, however, framed in vague and essentially hortatory language, and it has been characterized as part of the ‘unfinished agenda’ of the Convention. 15 Indeed, UNCLOS has been supplemented by other instruments on this topic, notably the UN Fish Stocks Agreement (UNFSA).

III. Elements 1. ‘stocks […] occur[ing] within the exclusive economic zone of two or more coastal States’ Art. 63 (1) creates an obligation for the coastal State to ‘seek to agree’ with other 5 concerned coastal States upon necessary measures for the management of transboundary stocks. This entails that States must seek to adopt jointly or coordinate their conservation measures, jointly determine a total allowable catch (� Art. 61) for these stocks and allocate the total allowable amongst themselves. In the absence of agreement, however, coastal States would seem to be able to set their own allowable catch in accordance with Art. 61. In light of Art. 300, States should do so in good faith and should exercise their rights in a manner which would not constitute an abuse of right. Yet, there is a danger that such unilateral action will nevertheless undermine the long-term sustainability of a stock if the disagreement between the coastal States continues. The dispute between Iceland and Faroe Islands and the EU on the joint management of the stock of North East Atlantic mackerel 16 provides a useful example: lack of agreement among coastal States is compounded by the setting of autonomous catch limits at very high levels that arguably posed a threat to the sustainability of the stock. As mackerel fisheries by Iceland and the Faroe islands are mostly carried out in their EEZs, they are not subject to the competence of the North East Atlantic Fisheries Commission, the regional fisheries management organization in charge of management of mackerel in international waters of the North-east Atlantic, and mackerel would not meet the criteria for listing under the Convention on International Trade in Endangered Species of Wild Fauna and Flora. The EU has been considering various options to persuade Iceland and Faroe Islands to cooperate. 17 Following the adoption of trade sanctions by the EU, legal proceedings were initiated by the Faroe Islands under both the WTO Agreement and the Convention, but the litigation was subsequently terminated following a settlement by the parties.18 Within its own portion of total allowable catch, each State may regulate access to the fisheries 6 for both nationals and third State vessels individually.19 Thus, coastal States retain their rights under Arts. 56, 61 and 62.20 The reference to ‘development’ of these stocks emphasizes the 15 Barbara Kwiatkowska, The High Seas Fisheries Regime: At a Point of No Return?, IJMCL 8 (1993), 327; see also David Freestone, Implementing Precaution Cautiously: The Precautionary Approach in the Straddling and Highly Migratory Fish Stocks Agreement, in: Ellen Hey (ed.), Developments in International Fisheries Law (1999), 287, 291. 16 For details of this dispute stretching back to 2010, see http://www.scottishpelagic.co.uk/news_views/mackerel_dispute.htm. 17 European Commission, Impact Assessment Accompanying the Proposal for a Regulation of the European Parliament and of the Council on Certain Measures Directed to Non-Collaborating Countries for the Purpose of the Conservation of Fish Stocks, SEC(2011) 1576 final (2011). See also Commission Implementing Regulation (EU) No. 793/2013 of 20 August 2013, OJ 2013 L 223, 1, establishing measures in respect of the Faroe Islands to ensure the conservation of the Atlanto-Scandian herring stock. 18 See WTO, European Union – Measures on Atlanto-Scandian Herring, Joint Communication from Denmark in respect of the Faroe Islands and the European Union of 21 August 2014, WT/DS469/3; PCA (Arbitral Tribunal Constituted under Annex VII UNCLOS), Atlanto-Scandian Herring Arbitration (The Kingdom of Denmark in Respect of the Faroe Islands/European Union), Termination Order of 23 September 2014, available at: http://www.pcacases.com/web/view/25. 19 Hey (note 4), 55–56, 68 and 91; Markowski (note 3), 50–51; L. Dolliver M. Nelson, The Development of the Legal Regime of High Seas Fisheries, in: Alan Boyle/David Freestone (eds.), International Law and Sustainable Development (1999), 121. 20 David J. Attard, The Exclusive Economic Zone in International Law (1987), 183.

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7–8

Part V. Exclusive economic zone

possibility of exploiting little-used stocks more effectively and, read in conjunction with the requirements in Art. 61, points to the need for a long-term strategy of maintaining transboundary stocks as a viable resource.21 Indeed, ITLOS has stressed that the term ‘development’ as used in Art. 63 must be understood to mean that ‘these stocks should be used as fishery resources within the framework of a sustainable fisheries management regime,’ noting that this may include ‘more effective fisheries management schemes to ensure the long-term sustainability of exploited stocks’ but also stock restoration.22

2. ‘stocks […] occur[ing] both within the exclusive economic zone and in an area beyond and adjacent to the zone’ Art. 63 (2) creates a similar obligation to that in Art. 63 (1) for concerned coastal States and States fishing for straddling stocks in the adjacent high seas. The term straddling stocks is not used in Art. 63 (2), but it is a term that was first employed in Agenda 21 in its call for the negotiation of an implementing agreement23 and it is used in the UNFSA, albeit without being concretely defined.24 The Food and Agriculture Organization (FAO) includes mackerel, squids and pollock among straddling stocks.25 8 Under Art. 63 (1), States must ‘seek to agree’ on conservation measures. The result is that ‘the coastal State has a say over conservation in the area of the high seas adjacent to its EEZ, even if it does not fish there; and that fishing States’ freedom of fishing in that area is subject to the rights and interests of the coastal State, as is expressly confirmed in Art. 116 (b).’26 This is justified by the fact that unrestrained fishing of straddling stocks in the high seas would render useless any measure adopted in the EEZ and vice versa. 27 Two elements, however, differentiate Art. 63 (2) from Art. 63 (1). First of all, the agreement on necessary measures only concerns the area beyond the EEZ, as no cooperative arrangement is expressly required for the whole range of the stocks. 28 Thus, the discretion of coastal States to adopt conservation and management measures within their own EEZ is not affected by this article. Second, the international obligation related to straddling stocks has been elaborated in the UNFSA.29 Thus, for State parties to UNCLOS that are also parties to the UNFSA,30 the obligation enshrined in Art. 63 (2) is complemented by the more specific requirements found in the UNFSA. Most of the provisions of the UNFSA are directed at fishing on the high seas for straddling (and highly migratory) stocks. However, several provisions are made specifically applicable to the EEZ, namely its general principles (Art. 5 UNFSA), the precautionary approach (Art. 6 UNFSA) and compatibility provisions (Art. 7 UNFSA).31 This results in ‘placing obligations on coastal States with regard to the conservation and management of such stocks within their EEZs’.32 It has thus been observed that ‘with regard to the management of straddling stocks within national 7

21

Nordquist/Nandan/Rosenne (note 2), 647. SRFC Advisory Opinion (note 4), para. 198. SRFC Advisory Opinion (note 4), para. 198. 23 UNCED, Report of the United Nations Conference on the Environment and Development, UN Doc. A.CONF/151/26/REV.1 (Vol. I) (1992), 9 (Agenda 21), Ch. 17.45, 17.49. 24 Bangert (note 1), para. 6. 25 Jean-Jacques Maguire et al., The State of World Highly Migratory, Straddling and Other High Seas Fishery Resources and Associated Species: FAO Fisheries Technical Paper 495 (2006). Cf. also Owen on Annex I. 26 Anderson (note 1), para. 6. 27 Nordquist/Nandan/Rosenne (note 2), 647. 28 Attard (note 20), 184. 29 Art. 7 (1)(a) UNFSA replicates Art. 63 (2) UNCLOS. 30 At the time of writing the UNFSA counts 78 parties, with 2 parties (Iran and the US) not being party to UNCLOS, cf. the table elaborated by the UN DOALOS, available at: http://www.un.org/Depts/los/reference_files/ status2010.pdf. 31 Art. 3 UNFSA. 32 Markowski (note 3), 17. 22

510

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Stocks occurring within the EEZ of two or more coastal States

9–10

Art. 63

jurisdiction, the [Fish Stocks] Agreement heightens the degree of obligation on the coastal state imposed by Article 61 of the Convention’.33 The UNFSA expands upon the concepts used in UNCLOS by including more contempor- 9 ary notions related to long-term sustainability of fish stocks, the protection of species within the same ecosystem; the prevention and elimination of overfishing and excess fishing capacity; minimizing pollution and discard; protection of marine biodiversity, and impact assessment.34 In addition, Art. 7 UNFSA requires compatible management of fisheries within and beyond national jurisdiction, taking into account the conservation and management measures ‘adopted and applied’ by the coastal State and it requires States to ensure that measures established for the high seas do not undermine the effectiveness of such measures. On the other hand, States are to take into account previously agreed measures for relevant high seas areas, biological characteristics of the stocks and the relationships between the distribution of stocks, the fisheries and the geographical particularities of the region concerned, but also respective dependence on the stocks of concerned coastal and fishing States.35 This provision has been interpreted as ‘requiring the coastal [S]tate to provide leadership in fisheries management by actually applying Article 61 principles within the EEZ before obligations for compatible exploitation can be imposed on high seas fisheries.’36 The obligations are coupled with the duty to inform other concerned States about the measures adopted for stocks concerned and to make every effort to reach a provisional arrangement pending the agreement on compatible measures.37 The FAO Code of Conduct for Responsible Fisheries,38 as a non legally-binding instrument that offers principles and standards applicable to the conservation, management and development of all fisheries including within the EEZ, thus providing a framework for national and international efforts 39 in the implementation of Art. 63 of the Convention, calls for compatibility of conservation and management measures for transboundary and straddling fish stocks to be achieved in a manner consistent with the rights, competences and interests of the States concerned. 40 Besides applying directly to its parties, it can also be argued that the UNFSA can be used as 10 a subsequent agreement to inform the interpretation of UNCLOS in accordance with Art. 31 (3) of the Vienna Convention on the Law of Treaties.41 However, the ability to use the UNFSA as an interpretative agreement depends on there being particular words in UNCLOS that require interpretation; it would not allow new obligations to be imposed on States Parties without some connection to the original wording of the Convention. 42 In addition, it would be necessary for UNCLOS parties to agree that the interpretation coloured by the UNFSA would not ‘prejudice’ their rights, jurisdiction and duties under the Convention, as required by Art. 4 UNFSA. It is also possible that certain obligations in the UNFSA have become customary international law and are therefore binding on States Parties to UNCLOS in that way, whether or not they are a party to the UNFSA itself. This argument may apply to the general obligations to pursue an ecosystem approach and a precautionary approach. 43 33 Donna R. Christie, The Conservation and Management of Stocks Located Solely within the Exclusive Economic Zone, in: Hey (note 14), 395, 413. 34 Ibid., 414. 35 Art. 7 (2) UNFSA; see also Moritaka Hayashi, The Straddling and Highly Migratory Fish Stocks Agreement, in: Hey (note 15), 51, 61–62. 36 Christie (note 33), 414. 37 Arts. 7 (5) and 7 (7)-(8) UNFSA; Hayashi (note 35), 61–62. 38 FAO, Code of Conduct on Responsible Fisheries (1995). 39 Preamble FAO Code of Conduct. 40 Art. 7.3.2 FAO Code of Conduct. 41 Freestone (note 15), 313. 42 Tore Henriksen, Revisiting the Freedom of Fishing and Legal Obligations of States not Party to Regional Fisheries Management Organizations, ODIL 40 (2009), 80, 81; James Harrison, Making the Law of the Sea (2011), 108. 43 For further information on the ecosystem and the precautionary approach within UNCLOS, cf. Czybulka on Art. 192 MN 3, Art. 194 MN 12, 32–34 and Art. 196 MN 9, 19; Stephens on Art. 198 MN 13, Art. 199 MN 8 and Art. 201 MN 5; Rayfuse on Art. 119 MN 33–25.

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Indeed, many of the general principles found in the UNFSA are today reflected in other international fisheries instruments which suggests that they have received a degree of acceptance amongst the international community.44 At the same time, some rules in the UNFSA are clearly intended to apply only to the parties. This is true of the provisions on enforcement and dispute settlement in Arts. 21 and 27–32 UNFSA respectively which are expressed as obligations for the ‘States Parties’ and they are therefore less likely to have influenced customary international law.

3. ‘associated species’ 11

Art. 63 also makes reference to stocks that are ‘associated’ 45 with transboundary or straddling stocks. The expression is broad and does not clarify the intensity of the link or causal relation between target species and associated species, or whether the relationship is to be determined exclusively on the basis of biological criteria, or also economic and legal ones.46 Given that the expression is also used in the UNFSA, it has been argued that it should be interpreted in light of the precautionary approach and the international obligation to conserve biodiversity, with a view to underlining the need for integrated management based on an ecosystem approach.47 This is certainly the correct interpretation in light of the obligations arising from the Convention on Biological Diversity and international standards on the ecosystem approach.

4. ‘States shall seek, either directly or through appropriate […] organizations, to agree upon the measures necessary for the conversation’ 12

Two options are envisaged to ensure cooperation in relation to transboundary and straddling stocks: States can cooperate directly among themselves, or they can do so through subregional or regional organizations.48 While the Convention does not express a preference for either form of cooperation, the FAO Code of Conduct encourages States concerned in the case of straddling stocks to cooperate ‘where appropriate, through the establishment of a bilateral, subregional or regional fisheries organization or arrangement’.49 Moreover, the UNFSA provides that ‘[w]here a subregional or regional fisheries management organization or arrangement has the competence to establish conservation and management measures for particular straddling fish stocks or highly migratory fish stocks, States fishing for the stocks on the high seas and relevant coastal States shall give effect to their duty to cooperate by becoming members of such organization or participants in such arrangement, or by agreeing to apply the conservation and management measures established by such organization or arrangement.’50

In addition, the UNFSA encourages States to establish regional fisheries management organizations or arrangements where they do not already exist.51 Overall, relevant international instruments fall short of creating an obligation to establish regional fisheries bodies for 44 See further Harrison (note 42), 108–113. See also Erik Franckx, Pacta Tertiis and the Agreement for the Implementation of the Straddling and Highly Migratory Fish Stocks Provisions of the United Nations Convention on the Law of the Sea, Tulane Journal of International and Comparative Law 8 (2000), 49–81. 45 In similar contexts this term can also be found in Arts. 61 (4) and Art. 119 (1)(b). 46 Bangert (note 1), para. 7. 47 Ibid. See Harrison/Morgera on Art. 61 MN 19. 48 For examples, see discussion in Robin R. Churchill, Managing Straddling Fish Stocks in the North-East Atlantic: A Multiplicity of Instruments and Regime Linkages – but How Effective a Management?, in: Olav Schram Stokke (ed.), Governing High Seas Fisheries: The Interplay of Global and Regional Regimes (2001) 235– 272. 49 Art. 7.1.3 FAO Code of Conduct. 50 Art. 8 (3) UNFSA (emphasis added). 51 Art. 8 (5) UNFSA.

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straddling stocks,52 although in practice they have led to the modification of pre-existing regional arrangements and the creation of new ones.53 UNCLOS provides no information on the specific goals of cooperation. However, this is 13 another area in which the UNFSA fills in gaps by identifying the issues which should be regulated by subregional and regional fisheries management organizations and arrangements.54 In practice, the principles in the UNFSA have been broadly taken into account by States when establishing new subregional or regional fisheries organizations, or in adapting existing organizations which have competence to manage straddling fish stocks. 55 It should be finally noted that ITLOS emphasized the need to seek the cooperation also of States that are not members of a regional organization but share the same stocks, directly or through appropriate internationhal organizations, in order to ensure the effectiveness of conservation and sustainable management of these stocks in the whole of their geographic distribution or migrating area.56

Article 64 Highly migratory species 1. 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. 2. The provisions of paragraph 1 apply in addition to the other provisions of this Part. Bibliography: Robin Allen, International Management of Tuna Fisheries: Arrangements, Challenges and Ways Forward, FAO Fisheries and Aquaculture Technical Paper 536 (2010); David H. Anderson, Straddling and Highly Migratory Fish Stocks, MPEPIL, available at: http://www.mpepil.com; David J. Attard, The Exclusive Economic Zone in International Law (1987); Patricia 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: David Freestone/Richard Barnes/David M. Ong (eds.), The Law of the Sea: Progress and Prospects (2006), 261–280; Holly Edwards, When Predators Become Prey: The Need for International Shark Conservation, OCLJ 12 (2007), 305–354; Sonja Fordham/Coby Dolan, A Case Study in International Shark Conservation: The Convention on International Trade in Endangered Species and the Spiny Dogfish, Golden Gate University Law Review 34 (2004), 531–571; John W. Kindt, The Law of the Sea: Anadromous and Catadromous Fish Stocks, Sedentary Species, and the Highly Migratory Species, SJILC 11 (1984), 9–46; Marion Markowski, The International Law of EEZ Fisheries (2010); Renee Martin-Nagle, Current Legal Developments: Convention on Trade in Endangered Species (CITES), IJMCL 25 (2010), 609–620; L. Dolliver M. Nelson, Exclusive Economic Zone, MPEPIL, available at: http://www.mpepil.com.; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Erika Techera/Natalie Klein, Fragmented Governance: Reconciling Legal Strategies for Shark Conservation and Management, Marine Policy 35 (2011), 73–78; Margaret Young, Protecting Endangered Marine Species: Collaboration between the Food and Agriculture Organization and the CITES Regime, Melb. J. Int’l L 11 (2010), 441–490

52

Hayashi (note 35), 67. See Kaare Bangert, Fisheries Agreements, MPEPIL, available at: http://www.mpepil.com. 54 Arts. 9–10 UNFSA. 55 See e. g., Secretary-General, The Status and Implementation of the Agreement for the Implementation of the Provisions of the United Nations Convention for the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (the Fish Stocks Agreement) and Its Impact on Related or Proposed Instruments Throughout the United Nations System, with Special Reference to Implementation of Part VII of the Fish Stocks Agreement, Dealing With the Requirements of Developing States, UN Doc. A/58/215 (2003). 56 SRFC Advisory Opinion (note 4), paras. 215 and 218. 53

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Documents: COP CITES, Conservation and Management of Sharks (Class Chondrichthyes), Resolution Conf. 12.6 (Rev. CoP15) (2010); COP CITES, Fifteenth Meeting of the Conference of the Parties: Interpretation and Implementation of the Convention: Species Trade and Conservation, COP15 Doc. 52 (Rev. 1) (2010); FAO, International Plan of Action for the Conservation and Management of Sharks, International Plan of Action for Reducing Incidental Catch of Seabirds in Longline Fisheries, International Plan of Action for the Management of Fishing Capacity (1999); Joint Meeting of Tuna Regional Fisheries Organizations, Report of the Second Joint Meeting of Tuna Regional Fisheries Management Organizations (RFMOs) (2009); Joint Meeting of Tuna Regional Fisheries Organizations, Report of the Joint Meeting of Tuna RFMOs (2007); Standing Committee CITES, Sixty-Second Meeting of the Standing Committee: Strategic Matters: Cooperation with Other Organization, SC62 Doc. 14.6 (2012), Annex (Guidelines for Cooperation Between The International Commission For the Conservation of Atlantic Tunas (ICCAT) and The Conference of The Parties to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES); UN Conference on Sustainable Development, The Future We Want, UN Doc. A/CONF.216/L.1 (2012); UNEP/CMS, Memorandum of Understanding on the Conservation of Migratory Sharks, 12 February 2010 Cases: ITLOS, Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional Measures, Order of 27 August 1999, ITLOS Reports (1999), 280; ITLOS, Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion of 2 April 2015, available at: https://www.itlos.org/ en/cases/list-of-cases/case-no-21/ Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 1. ‘highly migratory species listed in Annex I’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 2. ‘shall co-operate […] with a view to ensuring conservation and promoting the objective of optimum utilization’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 3. ‘directly or through appropriate international organizations’ . . . . . . . . . . . . . . . . . . . 10 4. Sharks as an Example of Highly Migratory Species Listed in Annex I . . . . . . . . . . 13

I. Purpose and Function Highly migratory species comprise tuna, marlin, swordfish, sharks and some other species of marine mammals. They raise specific concerns in the context of exclusive economic zone (EEZ) fisheries as their conservation and management is ‘difficult without international agreement’. 1 Thus, Art. 64 mandates cooperation between coastal States and other States fishing highly migratory species. The provision applies to the discrete list of species listed in Annex I which includes many highly commercially valuable species such as tuna, swordfish and marlin.2 2 Compared to Art. 63, Art. 64 creates a notably stronger obligation to cooperate, albeit it does not go as far as requiring States to reach agreement.3 It does not just require States to enter into negotiations, rather it requires that they engage in the coordinated or joint determination and allocation of the total allowable catch for highly migratory species, inclusive of the catch taken within the EEZ. As noted by the International Tribunal for the Law of the Sea, States must ‘consult with one another in good faith’ and ‘the consultations should be meaningful in the sense that substantial effort should be made by all States concerned, with a view to adopting effective measures necessary to coordinate and ensure the conservation and development of shared stocks.’4 However, if agreement cannot be reached, Art. 64 does not impede coastal 1

1 David J. Attard, The Exclusive Economic Zone in International Law (1987), 184; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 649. 2 For a comprehensive analysis, see Owen on Annex I. One study valued the tuna industry at US$ 42.21 billion; see Pew Charitable Trusts, Netting Billions: A Global Valuation of Tuna (2016). 3 The Permanent Court of International Justice stated that ‘an obligation to negotiate does not imply an obligation to reach agreement’, PCIJ, Railway Traffic between Lithuania and Poland, Advisory Opinion of 15 October 1931, PCIJ Series A/B 108, 116. 4 ITLOS, Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion of 2 April 2015, para. 210, available at: https://www.itlos.org/en/cases/list-of-cases/case-no-21.

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States from exercising their sole right to determine the conditions under which fishing may take place, enforcement responsibilities and the control over research and data collection. 5 Without derogating from the rights of the coastal States to regulate and manage highly migratory species within its EEZ, Art. 64 nevertheless implies that these unilateral decisions cannot be taken only in consideration of the coastal State’s interests.6 In the Southern Bluefin Tuna Cases, for instance, New Zealand and Australia alleged that Japan had failed to comply with its obligation to cooperate in the conservation of the southern bluefin tuna stock by, inter alia, failing in good faith to cooperate with New Zealand and Australia with a view to ensuring the conservation of the stocks in accordance with Art. 64.7 In prescribing provisional measures in the case, the International Tribunal for the Law of the Sea concluded that ‘Australia, Japan and New Zealand should resume negotiations without delay with a view to reaching agreement on measures for the conservation and management of southern bluefin tuna.’8 The interpretation of this provision needs to take into account several successive develop- 3 ments, such as the UN Fish Stocks Agreement (UNFSA), the creation of Regional Fisheries Management Organizations (RFMOs) and the relevance of multilateral environmental agreements.

II. Historical Background Given that coastal States only had limited jurisdiction over fishing prior to the development 4 of the EEZ, highly migratory species had not arisen in international negotiations as a distinct issue up until that time. However, given the economic importance of many highly migratory stocks for distant water fishing fleets, controversy surrounded the question as to whether highly migratory species should fall under the EEZ regime during discussions at UNCLOS III. At the 1971 session of the Sea-Bed Committee, the United States proposed empowering international fisheries organizations to regulate living resources including ‘highly migratory oceanic stocks’.9 Debates ensued as to the degree to which international fisheries organizations would be responsible for managing such species or whether States should rather regulate these stocks in agreement or consultation with relevant international organizations.10 Eventually, the proposals to require cooperation only through international organizations were not accepted and Art. 64 allows both bilateral cooperation and cooperation through international organizations to be pursued at the same time, as it also allows for cooperation through more than one mechanism for the same fishery.11 A proposal to include an obligation to adopt conservation measures within the EEZ that are no less effective than international standards was unsuccessful. 12 In its final form, Art. 64 (2) makes clear that other provisions on EEZ fisheries are 5 applicable to highly migratory species, and therefore ‘confirms the sovereign rights of coastal

5

Marion Markowski, The International Law of EEZ Fisheries (2010), 51. Attard (note 1), 186. ITLOS, Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional Measures, Order of 27 August 1999, ITLOS Reports (1999), 280, paras. 28 (i)(d), 29 (1)(d). 8 Ibid., para. 90 (1)(e) (emphasis added). 9 Nordquist/Nandan/Rosenne (note 1), 650. For a detailed analysis of the US proposal, see Owen on Annex I MN 3 et seq. 10 Nordquist/Nandan/Rosenne (note 1), 650–656. 11 Ibid., 657. 12 Second Committee UNCLOS III, United States of America: Draft Articles for a Chapter on the Economic Zone and the Continental Shelf, UN Doc. A/CONF.62/C.2/L.47 (1974), OR III, 222, 223–224 (Article 19): ‘Fishing for highly migratory species listed in the annex within the economic zone shall be regulated by the coastal States, and beyond the economic zone by the State of nationality of the vessel, in accordance with regulations established by appropriate international or regional fishing organizations pursuant to this article.’ See also John W. Kindt, The Law of the Sea: Anadromous and Catadromous Fish Stocks, Sedentary Species, and the Highly Migratory Species, SJILC 11 (1984), 9, 22–23. 6 7

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states to manage highly migratory species in their EEZ’.13 Nowadays ‘the large majority of States claim jurisdiction over all EEZ living resources including highly migratory species.’ 14

III. Elements 1. ‘highly migratory species listed in Annex I’ 6

Art. 64 applies to those species listed in Annex I of the Convention. The reference to Annex I, entitled ‘Highly Migratory Species’, is however problematic. First of all, the Convention does not contain any provision for its adjustment in light of increased knowledge, beyond the normal, somewhat cumbersome, amendment procedures. 15 Second, some of the species listed in Annex I would also fall within the scope of other provisions in Part V. This is particularly problematic for cetaceans, as Annex I contains ‘some but not all cetaceans’ which are specifically addressed by Art. 65.16 It has been argued, therefore, that when Art. 64 applies to the cetaceans listed in Annex I in the EEZ, it operates as lex generalis, while Art. 65 is a lex specialis which enables coastal States or international organizations to prohibit, limit or regulate marine mammals more strictly than Art. 64 would otherwise allow.17

2. ‘shall co-operate […] with a view to ensuring conservation and promoting the objective of optimum utilization’ Art. 64 obliges cooperation towards the conservation and optimum utilization of highly migratory species, to the extent possible throughout their range, both within and beyond the EEZ.18 The reference to the dual goal of ensuring conservation and promoting optimum utilization reflects Arts. 61 (2) and 62 (1) in framing the management of highly migratory species as an economic resource.19 It has thus been noted that Art. 64 does not override the provisions of Arts. 56, 61–62 of the Convention,20 leading to the criticism that it ‘does not go far enough in promoting its goals’ and is ultimately seen as treating highly migratory species no differently from others subject to Part V of the Convention. 21 8 It has been argued that in light of the widespread acceptance of the obligations contained in Art. 64 as reflected in State practice, these obligations are considered a shared responsibility among coastal States and States fishing highly migratory species and may be considered ‘part at least of the general principles of international law, if not of international custom’. 22 9 As has been observed in relation to Art. 63 (2), the international obligation related to highly migratory stocks has been elaborated in the UNFSA: for States Parties to UNCLOS that also are parties to the UNFSA, the obligation enshrined in Art. 64 is thus complemented by the more specific requirements found in the UNFSA that are made specifically applicable to the EEZ, namely its general principles (Art. 5 UNFSA), the precautionary approach (Art. 6 UNFSA) and 7

13 Patricia 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: David Freestone/Richard Barnes/David M. Ong (eds.), The Law of the Sea: Progress and Prospects (2006), 261, 273. 14 Attard (note 1), 186. 15 David H. Anderson, Straddling and Highly Migratory Fish Stocks, MPEPIL, para. 7, available at: http:// www.mpepil.com. For further information, cf. Owen on Annex I. 16 Birnie (note 13), 263. See also Owen on Annex I MN XX. 17 Birnie (note 13), 274; Nordquist/Nandan/Rosenne (note 1), 664. 18 David Freestone, Implementing Precaution Cautiously: The Precautionary Approach in the Straddling and Highly Migratory Fish Stocks Agreement, in: Ellen Hey (ed.), Developments in International Fisheries Law (1999), 287, 302; Nordquist/Nandan/Rosenne (note 1), 657. 19 Nordquist/Nandan/Rosenne (note 1), 657. 20 L. Dolliver M. Nelson, Exclusive Economic Zone, MPEPIL, para. 57, available at: http://www.mpepil.com. For further information, cf. Owen on Annex I. 21 Kindt (note 12), 21. 22 Markowski (note 5), 55.

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compatibility provisions (Art. 7 UNFSA).23 Moreover, the UNFSA provides specific details concerning the issues which should be regulated by subregional and regional fisheries management organizations and arrangements responsible for highly migratory stocks.24

3. ‘directly or through appropriate international organizations’ Although Art. 64 leaves it open to relevant States whether to cooperate directly or through 10 international organizations, it expresses preference for the latter option by encouraging States to cooperate to establish such organizations in regions where they do not exist. 25 Several RFMOs deal with highly migratory species, in particular tuna: Inter-American Tropical Tuna Commission, International Commission for the Conservation of Atlantic Tuna (ICCAT), Indian Ocean Tuna Commission, Western Indian Ocean Tuna Organization and the Commission for the Conservation of the Southern Bluefin Tuna.26 To provide an example, ICCAT is tasked with carrying out studies of the populations of tuna and tuna-like fishes and such other species of fishes exploited in tuna fishing in the Convention area as are not under investigation by another international fishery organization, and making recommendations designed to maintain the populations of tuna and tuna-like fishes that may be taken in the Convention area at levels which will permit the maximum sustainable catch.27 The most recent Western and Central Pacific Fisheries Commission, which was created in 2004, is tasked to ‘to ensure, through effective management, the long-term conservation and sustainable use of highly migratory fish stocks in the western and central Pacific Ocean in accordance with the 1982 Convention and the Agreement’.28 According to a Food and Agriculture (FAO) study: ‘The tuna RFMOs use similar processes to develop and agree on conservation and management measures. They collect or assemble data about the fisheries, carry out a scientific assessment of the state of the stocks, using either dedicated scientific experts or a committee of scientists drawn from members and cooperating participants, or some combination of those arrangements. The best scientific advice is presented to their governing commission, which then develops any management measures it believes necessary in the light of the scientific advice and other relevant factors […]. [Their] rather unwieldy decision-making processes tend to result in lowest common denominator decisions rather than producing forward-looking and precautionary conservation and management measures.’ 29

Following the adoption and entry into force of the UNFSA, several RFMOs have reviewed 11 their performance. A recent FAO study, however, concludes that the UNFSA, the precautionary approach and the setting of limit points, ‘seem to have had little effect on management by the tuna RFMOs’.30 Accordingly, the General Assembly continues to highlight the persistent need to carry out and publish the results of such reviews for all RFMOs, as well as the more general need for RFMOs to modernize their mandates to fully incorporate the precautionary and ecosystem approaches to fisheries management and biodiversity considerations, including the conservation and management of ecologically related and dependent species and protection of their habitat; and improve transparency through the development of transparent criteria for the allocation of fishing opportunities. 31 At the 2012 UN Conference on Sustainable Development, governments agreed on ‘the need for transparency and accountability in fisheries management by regional fisheries management organizations’, as well as the need for RFMOs not only to regularly undertake independent performance 23

Art. 3 UNFSA. Arts. 9–10 UNFSA. See also Harrison/Morgera on Art. 63 and Owen on Annex I. 25 Markowski (note 5), 52. 26 Nelson (note 20), para. 56. 27 Arts. IV, VII International Convention for the Conservation of Atlantic Tunas, 14 May 1966, UNTS 673, 63. 28 Art. II Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, 5 September 2000, UNTS 2275, 43. 29 Robin Allen, International Management of Tuna Fisheries: Arrangements, Challenges and Ways Forward, FAO Fisheries and Aquaculture Technical Paper 536 (2010), 8. 30 Ibid., 30. 31 GA Res. 65/38 of 7 December 2010, paras. 107–108, 99 and 105. 24

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reviews, but also to strengthen the comprehensiveness of those reviews, to make their results publicly available, and to implement their recommendations.32 12 RFMOs have also engaged in wider coordination among themselves: notably, the tunarelated organizations have convened joint meetings since 2007 33 and adopted Course of Actions with a view to addressing jointly the excessive global fishing capacity for tunas. 34 Nonetheless, the performance of RFMOs remains a cause of concern, and has motivated a proposal to list Atlantic Bluefin Tuna under Appendix I35 of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) which would have had the effect of prohibiting commercial trade in that fish. Whilst the proposal was unsuccessful, it brought to the attention of the international community the continued inadequacy of the management by the ICCAT and the possibility of resorting to other international instruments to address such inadequacy.36 As a follow-up to the failed proposal, the Secretariats of CITES and ICCAT are elaborating guidelines for cooperation.37

4. Sharks as an Example of Highly Migratory Species Listed in Annex I 13

Annex I includes certain ‘oceanic sharks’ amongst the highly migratory fish stocks regulated by Art. 64. Several recent international instruments have focused on sharks, because of their close stock-recruitment relationship, long recovery times in response to over-fishing and complex spatial structures (size/sex segregation and seasonal migration), providing evidence of State practice complying with the obligation enshrined in Art. 64 of cooperating through appropriate international organizations. In 1999 the FAO adopted an International Plan of Action (IPOA) for the Conservation and Management of Sharks, aimed at ensuring their longterm sustainable use.38 The IPOA, which is voluntary in nature, applies to States in the waters of which sharks are caught by their own or foreign vessels, thereby including the EEZ, and to States the vessels of which catch sharks on the high seas. It calls upon States to develop, implement and monitor a national plan of action for conservation and management of shark 32 UN Conference on Sustainable Development, The Future We Want, UN Doc. A/CONF.216/L.1 (2012), 32 (para 172). 33 First global summit of Tuna RFMOs was held in Kobe, Japan, January 2007. For further information, see http://www.tuna-org.org/. 34 The first global summit adopted a Course of Actions with recommendations to standardize the presentation of stock assessments and to base management decisions upon the scientific advice, including the application of the precautionary and ecosystem-based approach leading to the establishment of measures to minimize the adverse effect of fishing for highly migratory fish species on ecologically related species, particularly sea turtles, seabirds and sharks, taking into account the characteristics of each ecosystem and technologies used to minimize adverse effect., see Joint Meeting of Tuna Regional Fisheries Organizations, Report of the Joint Meeting of Tuna RFMOs (2007), Appendix 14 (TunaRFMOs2007/16).The second Joint Tuna RFMOs Meeting, San Sebastian, 2009, adopted a followup Course of Actions: Joint Meeting of Tuna Regional Fisheries Organizations, Report of the Second Joint Meeting of Tuna Regional Fisheries Management Organizations (RFMOs) (2009). This was acknowledged by the General Assembly, which encouraged continued implementation, see GA Res. 65/38 of 7 December 2010, paras. 102–103. See generally, Anderson (note 15), para. 21. 35 COP CITES, Fifteenth Meeting of the Conference of the Parties: Interpretation and Implementation of the Convention: Species Trade and Conservation, COP15 Doc. 52 (Rev. 1) (2010). 36 Renee Martin-Nagle, Current Legal Developments: Convention on Trade in Endangered Species, IJMCL 25 (2010), 609. 37 Standing Committee CITES, Sixty-Second Meeting of the Standing Committee: Strategic Matters: Cooperation with Other Organization, SC62 Doc. 14.6 (2012), Annex (Guidelines for Cooperation Between The International Commission For the Conservation of Atlantic Tunas (ICCAT) and The Conference of The Parties to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)). 38 FAO, International Plan of Action for the Conservation and Management of Sharks, International Plan of Action for Reducing Incidental Catch of Seabirds in Longline Fisheries, International Plan of Action for the Management of Fishing Capacity (1999). For further information, see Erika Techera/Natalie Klein, Fragmented Governance: Reconciling Legal Strategies for Shark Conservation and Management, Marine Policy 35 (2011), 73; Holly Edwards, When Predators Become Prey: The Need for International Shark Conservation, OCLJ 12 (2007), 305; Margaret Young, Protecting Endangered Marine Species: Collaboration between the Food and Agriculture Organization and the CITES Regime, Melb. J. Int’l L.11 (2010), 441.

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Marine mammals

stocks.39 Where transboundary, straddling, highly migratory and high seas stocks of sharks are exploited by two or more States, the States concerned should strive to ensure effective conservation and management of the stocks, including through the adoption of regional or sub-regional plans.40 The General Assembly has called upon States and RFMOs to urgently adopt measures to implement the IPOA.41 More recently it has called upon States to take immediate and concerted action to improve implementation of and compliance with regional arrangements and national measures regulating shark fisheries and incidental catch of sharks, in particular those prohibiting fisheries conducted for the sole purpose of harvesting shark fins, as well as upon RFMOs to take precautionary conservation and management measures for sharks taken in fisheries.42 Certain States have taken legislative action to ban shark-finning. 43 Environmental treaties also regulate some species of shark, thus confirming that the 14 relevant treaty bodies can operate as ‘appropriate international organizations’ for the purposes of Art. 64. The parties to CITES, which includes Cetorhinus maximus (Basking shark), Rhincodon typus (Whale shark) and Carcharodon carcharias (Great white shark) in Appendix II CITES, urged FAO to take steps to actively encourage relevant States to develop national plans and encouraged parties to report directly to the CITES Secretariat on the implementation of national and regional plans.44 In parallel, under the Convention on the Conservation of Migratory Species of Wild Animals (CMS), a Memorandum of Understanding (MoU) on the Conservation of Migratory Sharks was concluded in 2010,45 covering seven shark species listed on the CMS Appendices: Basking Shark, Great White Shark, Whale Shark, Shortfin and Longfin Mako Shark, Porbeagle and Northern hemisphere populations of the Spiny Dogfish. The CMS MoU aims to achieve and maintain a favourable conservation status for migratory sharks based on the best available scientific information, taking into account the socio-economic and other values of these species for the people of the signatories, through the application of the precautionary and ecosystem-based approach and with the ‘fullest possible cooperation’ among governments, intergovernmental organizations, nongovernmental organizations, stakeholders of the fishing industry and local communities.

Article 65 Marine mammals 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. 39

Allen (note 29), 11, 13–14 (paras. 17–24). Ibid., 14–15 (paras. 25–26). GA Res. 61/105 of 8 December 2006, para. 10. 42 GA Res. 65/38 of 7 December 2010, paras. 13–15. 43 E. g. Central America Fisheries and Aquaculture Organization, Regulation OSP-05-11 to Ban the Practice of Shark Finning in the States Parties of SICA of November 2011, which is legally binding upon domestic and foreign vessels that catch and land sharks in areas under the jurisdiction of Belize, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Nicaragua and Panama, as well as to vessels fishing in international waters that fly the flag of these countries. 44 COP CITES, Conservation and Mangement of Sharks (Class Chondrichthyes), Resolution Conf. 12.6 (Rev. CoP15) (2010), available at: http://www.cites.org/eng/res/12/12-06R15.php. Sonja Fordham/Coby Dolan, A Case Study in International Shark Conservation: The Convention on International Trade in Endangered Species and the Spiny Dogfish, Golden Gate University Law Review 34 (2004), 531–571. 45 UNEP/CMS, Memorandum of Understanding on the Conservation of Migratory Sharks, 12 February 2010, available at http://www.cms.int/species/sharks/MoU/Migratory_Shark_MoU_Eng.pdf. 40 41

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Bibliography: Patricia 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: David Freestone/Richard Barnes/David M. Ong (eds.), The Law of the Sea: Progress and Prospects (2006), 261–280; Patricia W. Birnie, International Regulation of Whaling, vol. 1 (1985); Patricia W. Birnie, The Conservation and Management of Marine Mammals and Anadromous and Catadromous Species, in: Ellen Hey (ed.), Developments in International Fisheries Law (1999), 357–393; Jochen Braig, Whaling, MPEPIL, available at: http://www.mpepil.com; Cinnamon P. Carlarne, Saving the Whales in the New Millennium: International Institutions, Recent Developments and the Future of International Whaling Policies, Virginia Environmental Law Journal 24 (2005), 1–48; David Freestone, Implementing Precaution Cautiously: The Precautionary Approach in the Straddling and Highly Migratory Fish Stocks Agreement, in: Ellen Hey (ed.), Developments in International Fisheries Law (1999), 287–325; Alexander Gillespie, Whaling Diplomacy (2005); Ted McDorman, Canada and Whaling: An Analysis of Article 65 of the Law of the Sea Convention ODIL 29 (1998), 179–184; Elisa Morgera, Whale Sanctuaries: An Evolving Concept within the International Whaling Commission, ODIL 35 (2004), 319–338; L. Dolliver M. Nelson, Exclusive Economic Zone, MPEPIL, available at: http://www.mpepil.com; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Alexander Proelss, Marine Mammals, MPEPIL, available at: http:// www.mpepil.com; Donald R. Rothwell/Tim Stephens, The International Law of the Sea (2010); Tullio Scovazzi, The Mediterranean Marine Mammals Sanctuary, IJMCL 16 (2001), 132–145 Documents: COP CITES, Illegal Trade in Whale Meat, Resolution Conf. 9.12 (CoP9) (1994); International Whaling Conference, Report of the Drafting Committee at the International Whaling Conference, Doc. IWC/49 (1946); UNCED, Report of the United Nations Conference on the Environment and Development, UN Doc. A.CONF/151/26/REV.1 (Vol. I) (1992), 9-479 (Agenda 21); UNCHE, Report of the United Nations Conference on the Human Environment, UN Doc. A/CONF.48/14/REV. 1 (1973), 6–28 (Action Plan for the Human Environment); UNEP/CMS, Memorandum of Understanding Concerning Conservation Measures for the Eastern Atlantic Populations of the Mediterranean Monk Seal (Monachus Monachus)), 18 October 2007; UNEP/ CMS, Memorandum of Understanding on the Conservation and Management of Dugongs and their Habitats Throughout Their Range, 31 October 2007; UNEP/CMS, Memorandum of Understanding for the Conservation of Cetaceans and Their Habitats in the Pacific Islands Region, 9 September 2006 Cases: Award between the United States and the United Kingdom, Relating to the Rights of Jurisdiction of United States in the Bering’s Sea and the Preservation of Fur Seals (United States v. United Kingdom), Decision of 15 August 1893, RIAA XXVIII, 263; GATT Panel Report, US – Restrictions on Imports of Tuna, DS21/R, 3 September 1991, unadopted, BISD 39S/155; Report of the WTO Appellate Body, United States – Measures concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/AB/R, 16 May 2012; ICJ, Case Concerning Whaling in the Antarctic (Australia v. Japan; New Zealand Intervening), Merits, Judgment of 31 March 2014, ICJ Reports (2014), 226 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘marine mammals’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘Nothing […] restricts the right of a coastal State […] to prohibit, limit or regulate the exploitation’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘States shall co-operate with a view to the conservation of marine mammals’. . 4. ‘in the case of cetaceans [States] shall in particular work through the appropriate international organziations for their conservation, management and study’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 4 7 7 8 9 12

I. Purpose and Function 1

There are around 120 species of marine mammals including cetaceans (whales, dolphins and porpoises), pinnipeds (seals and walrus) and sirenians (dugong).1 Art. 65 singles out marine mammals for special treatment because of their exceptional vulnerability to capture and adverse effects of other human interference, their highly migratory nature 2, and their interest

1 2

Donald R. Rothwell/Tim Stephens, The International Law of the Sea (2010), 308. See for information on the relationship between Arts. 64 and 65 also Harrison/Morgera on Art. 64 MN 6.

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both from economic, aboriginal use and conservation viewpoints.3 UNCLOS empowers States to give particular consideration to marine mammals in the context of the exclusive economic zone (EEZ) fisheries and subject them to a stricter management regime that is provided by Arts. 61–62.4 In avoiding reference to ‘utilization’, the Convention allows the prohibition or limitation of the exploitation of marine mammals,5 although it does not require States to adopt stricter regulation.6 Art. 65 represents an attempt to address the problems that had emerged in the negotiation 2 and implementation of previous agreements seeking to prevent the over-exploitation of marine mammals, and in particular cetaceans: thus, in allowing coastal States and competent international organizations to develop stricter measures to conserve marine mammals, it preserves the central role played in this endeavour by various international bodies. 7 Art. 65 includes a competency clause relating to marine mammals within the EEZ, and a 3 cooperation clause, which applies to all marine mammals but which specifically mentions cetaceans.8 The cooperation clause, which is repeated verbatim in Ch. 17 of Agenda 21, 9 is considered part of customary international law.10 The application of Art. 65 is extended to the high seas by virtue of Art. 120.

II. Historical Background The Bering Fur Seal Arbitration of 189311 is considered the ‘origins of the legal rules relevant 4 to the conservation and management of marine mammals’, as it concerned the legality of pelagic sealing beyond the territorial sea.12 The arbitral tribunal recognised the need for the protection of fur seals, even if it did not find that the United States had exclusive jurisdiction over the fur seals in the Bering Sea outside its territorial waters. The tribunal thus adopted a series of regulations aimed at the protection of fur seals, including a no-sealing zone, an annual closed season, a licensing system for vessels engaged in pelagic sealing, a prohibition on using certain fishing gear and an exception for aboriginal sealing.13 Following the decision, a regional convention was concluded for the protection of seals. The 1911 Convention between the United States, Great Britain, Russia and Japan for the Preservation for the Preservation and Protection of Fur Seals and Sea Otters in the North Pacific Ocean14 was eventually substituted by the 1957 Interim Convention on Conservation of North Pacific Fur Seals 15 and the Protocol amending and extending the Interim Convention on Conservation of North Pacific Fur Seals of 3 Patricia 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: David Freestone/Richard Barnes/David M. Ong (eds.), The Law of the Sea: Progress and Prospects (2006), 261, 264. 4 Ibid., 274. 5 David Freestone, Implementing Precaution Cautiously: The Precautionary Approach in the Straddling and Highly Migratory Fish Stocks Agreement, in: Ellen Hey (ed.), Developments in International Fisheries Law (1999), 287, 302 (footnote 62); David J. Attard, The Exclusive Economic Zone in International Law (1987), 189. 6 Alexander Proelss, Marine Mammals, MPEPIL, para. 13, available at: http://www.mpepil.com. 7 Birnie (note 3), 262. 8 Ted McDorman, Canada and Whaling: An Analysis of Article 65 of the Law of the Sea Convention, ODIL 29 29 (1998), 179, 181–182. 9 UNCED, Report of the United Nations Conference on the Environment and Development, UN Doc. A.CONF/151/26/REV.1 (Vol. I) (1992), 9 (Agenda 21). 10 McDorman (note 8), 187. 11 Award between the United States and the United Kingdom, Relating to the Rights of Jurisdiction of United States in the Bering’s Sea and the Preservation of Fur Seals (United States v. United Kingdom), Decision of 15 August 1893, RIAA XXVIII, 263. 12 Proelss (note 6), paras. 5–8. 13 Bering Fur Seal Arbitration (note 11), 263. 14 Convention between the United States, Great Britain, Russia and Japan for the Preservation for the Preservation and Protection of Fur Seals and Sea Otters in the North Pacific Ocean, 7 July 1911, US Treaty Series No. 564. 15 Interim Convention on Conservation of North Pacific Fur Seals, 9 February 1957, UNTS 314, 105.

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197616. Similar treaties were adopted to address the conservation and management of seal populations in other parts of the world, notably the 1972 Convention for the Conservation of Antarctic Seals.17 5 Another category of marine mammals subject to early regulation was cetaceans. Whales have been exploited by mankind for many centuries as a source of food and more importantly oil. The first industrial whaling is thought to have started in Europe in the eleventh or twelfth centuries but by the nineteenth century, the whaling industry had extended its operations around the world.18 The first global instrument for the management of cetaceans was the 1931 Convention on the Regulation of Whaling, 19 which was succeeded by the 1937 International Agreement for the Regulation of Whaling of 1937 20 and the 1946 International Convention for the Regulation of Whaling (ICRW). It should be further noted that the 1958 Convention on the High Seas and the Convention on Fishing and Conservation of the Living Resources of the High Seas did not deal specifically with marine mammals. 6 Against this background, the special conservation and regulatory needs of marine mammals were discussed at UNCLOS III under the ‘strong pressure applied by environmental groups backed by the United States’.21 What became Art. 65 originated in a Maltese proposal made in the Sea-Bed Committee on the development of conservation for ‘sea mammals’. 22 The United States proposed to devote a separate provision to marine mammals. 23 Successive versions of the relevant draft led to a ‘self-standing provision’24 which signalled that Art. 65 was going to be in addition to Art. 64, thus ‘free[ing] the coastal [S]tate of challenge if it should decide to forbid exploitation of any marine mammal within its EEZ’.25 Negotiations were nonetheless difficult because of polarized positions on whaling, so the resulting provision ended up being ‘one of the most opaque articles in the [Convention]’.26

III. Elements 1. ‘marine mammals’ 7

Art. 65 is marred with ambiguities to the extent that ‘both proponents and opponents of whaling argue that the Convention supports their position’.27 First of all, ‘marine mammals’ are not defined in the Convention, but the term can be understood as referring to aquatic warm-blooded and air-breathing species which are characterized by the production of milk 16 Protocol Amending and Extending the Interim Convention on Conservation of North Pacific Fur Seals, 7 May 1976, UNTS 1082, 298. 17 Convention for the Conservation of Antarctic Seals, 1 June 1972, UNTS 1080, 175. 18 See Patricia W. Birnie, International Regulation of Whaling, vol. 1 (1985), 49–70. 19 Convention for the Regulation of Whaling, 24 September 1931, LNTS 155, 349. 20 International Agreement for the Regulation of Whaling, 8 June 1937, LNTS 190, 79. See discussion in Proelss (note 4), paras. 9–11. 21 Attard (note 5), 189. 22 Sea-Bed Committee, Malta: Preliminary Draft Articles on the Delimitation of Coastal State Jurisdiction in Ocean Space and on the Rights and Obligations of Coastal States in the Areas under Their Jurisdiction, UN Doc. A/AC.138/SC.II/L.28 (1973), 33, cited in: GAOR 28th Sess. Suppl. 21 (A/9021) vol. I, 64. See comments by Patricia W. Birnie, The Conservation and Management of Marine Mammals and Anadromous and Catadromous Species, in: Hey (note 5), 357, 370; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 660. 23 Second Committee UNCLOS III, United States of America: Draft Articles for a Chapter on the Economic Zone and the Continental Shelf, UN Doc. A/CONF.62/C.2/L.47 (1974), 222, 224 (Article 20). 24 L. Dolliver M. Nelson, Exclusive Economic Zone, MPEPIL, para. 62, available at: http://www.mpepil.com. 25 Nordquist/Nandan/Rosenne (note 21), 663 (MN 65.11(a)). 26 Birnie (note 3), 261. 27 Cinnamon P. Carlarne, Saving the Whales in the New Millennium: International Institutions, Recent Developments and the Future of International Whaling Policies, Virginia Environmental Law Journal 24 (2005), 1, 30.

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in female mammary glands.28 Many marine mammals are further characterized by the cyclic nature of their migration between breeding and feeding grounds, relatively low reproduction rate and complex social structures.29 The term encompasses cetaceans, pinnipeds, sirenians, sea otters and polar bears which are all ‘to a greater or lesser degree endangered species’ 30, with cetaceans referring to whales, dolphins and porpoises more specifically. 31

2. ‘Nothing […] restricts the right of a coastal State […] to prohibit, limit or regulate the exploitation’ As can be deduced from the fact that the text of Art. 65 omits reference to the term 8 ‘optimum utilization’ (� Art. 62 (1); Art. 64 (1)), this provision establishes a limited exception to the objective of optimum utilization by permitting coastal States to prohibit or limit the exploitation of marine mammals. In other words, coastal States are not obliged to set an allowable catch for marine mammals under Art. 61 (1) of the Convention, nor are they obliged to permit access to the allowable catch by other States in accordance with Art. 62. BIRNIE also argues that Art. 65 prevails over Art. 61 (4), in that the obligation to cooperate for the prohibition, limitation or stricter regulation of marine mammals supersedes the consideration of the effects of management measures on stocks of other species associated with or dependent upon marine mammals with a view to maintaining or restoring associated or dependent species above levels at which their reproduction may become seriously threatened.32 In other words, marine mammals cannot be subject to less strict regulation on the grounds that it would be necessary to maintain or restore associated or dependent species.

3. ‘States shall co-operate with a view to the conservation of marine mammals’ The second function of Art. 65 is to establish a duty for States to ‘cooperate with a view to 9 the conservation of marine mammals’. A special reference is made to cetaceans, in relation to which States are under an obligation to ‘work through the appropriate international organizations for their conservation, management, and study’. This description suggests that such organizations play a different role than other regional fisheries management organizations set up to regulate fishing. Art. 65 does not, however, clearly establish when an international organization would be ‘appropriate’ for the purposes of the establishment of a distinct regime for marine mammals. It has been argued that ‘it is only where the coastal [S]tate opts to delegate such jurisdiction to an international organization, that the organization becomes “appropriate” in the sense of the first sentence of article 65.’ 33 With specific regard to the cooperation clause in the second sentence of Art. 65, the 10 expression ‘work through’ is considered insufficient to determine the ‘degree or means of collaboration required’.34 It would seem that Art. 65 does not require States to become members of relevant international organizations or even to adhere to the regulations adopted by these organizations.35 It has thus been argued that the obligation to ‘work through’ could be satisfied by mere cooperation with scientific bodies of relevant international organizations or active engagement in the organization as observers. 36 Canada in particular had made a declaration noting that Art. 65 does not entail an obligation to work 28 Birnie (note 3), 264. Note that the ICRW does not define whales either, but rather refers to species listed in an Annex; Jochen Braig, Whaling, MPEPIL, para. 6, available at: http://www.mpepil.com. 29 Proelss (note 6), paras. 1–2. 30 Ibid. 31 Ibid. 32 Birnie (note 3), 275. 33 McDorman (note 8), 182. 34 Birnie (note 22), 370. 35 Proelss (note 6), para. 14. 36 Braig (note 28), para. 41; McDorman (note 8), 182–187.

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through more than one appropriate international organization and in all events such obligation is triggered only when the status of the stock is such that the attention of the appropriate international organization is necessary to assist in the conservation, management and study of the stock.37 11 Notwithstanding its limitations, this provision has been considered particularly significant for its inclusion in a comprehensive treaty, the preamble of which reflects the international community’s awareness of the complex management problems concerning marine living resources and the relevance of legal developments before and after the Convention. 38 In addition, the lack of reference to exploitation and the emphasis on conservation could be considered apt to support the adoption of moratoria, although the specific choice of means of enforcement is left to relevant coastal States on the basis of Art. 62, and international organizations.39 Several States have indeed established through national legislation sanctuaries for marine mammals in their EEZ.40

4. ‘in the case of cetaceans [States] shall in particular work through the appropriate international organziations for their conservation, management and study’ As BIRNIE emphasizes, Art. 65 cannot be understood by reference only to the drafting history of the Convention, but also of the ‘more than a hundred years’ of international attempts to introduce protective measures for marine mammals. 41 Successive international developments in relation to the conservation and sustainable use of marine mammals are equally relevant to interpret Art. 65. 13 One such global agreement is certainly the ICRW which applies to all waters in which whaling is undertaken,42 thus also to the EEZ.43 While the ICRW was conceived as a treaty for the preservation of whale stocks to ensure the continuation of the whaling industry, 44 it led to the adoption of the so-called moratorium on commercial whaling in 1982, 45 following a recommendation adopted at the Stockholm Conference on the Human Environment. 46 The moratorium is still in place, although parties to the ICRW continue to debate whether the Convention has become a conservation rather than a sustainable use instrument: parties have established whale sanctuaries47 and adopted non-binding recommendations on conservation issues such as the impacts of climate change on whales and trade in whale products, but also adopted a Revised Management Procedure in 1994 with a view to resuming commercial 12

37

McDorman (note 8), 183. Birnie (note 3), 262. 39 Id. (note 21), 370–371. 40 See examples discussed in Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 318–319. 41 Birnie (note 3), 261. 42 Art. I ICRW. 43 The ICRW itself is conceived as setting minimum standards and therefore States may adopt and enforce laws or regulations within their jurisdiction which give additional protection to whales provided they are not inconsistent with the provisions of the ICRW; see International Whaling Conference, Report of the Drafting Committee at the International Whaling Conference, Doc. IWC/49 (1946). 44 Braig (note 28). 45 Paragraph 10 (e) of the Schedule to the ICRW provides that ‘catch limits for the killing for commercial purposes of whales from all stocks for the 1986 coastal and the 1985/86 pelagic seasons and thereafter shall be zero. This provision will be kept under review, based upon the best scientific advice, and by 1990 at the latest the Commission will undertake a comprehensive assessment of the effects of this decision on whales stocks and consider the modification of this provision and the establishment of other catch limits’. 46 UNCHE, Report of the United Nations Conference on the Human Environment, UN Doc. A/CONF.48/14/ REV. 1 (1973), 6 (Action Plan for the Human Environment). 47 Sanctuaries have been adopted in the Indian Ocean and the Southern Ocean; see ICRW, Schedule, para. 7. Several IWC members are also proposing the establishment of a third sanctuary in the South Atlantic Ocean and the proposal will be discussed at the 2016 meeting of the IWC. Note that the legality of the establishment of sanctuaries under the ICRW is contested: Elisa Morgera, Whale Sanctuaries: An Evolving Concept within the International Whaling Commission, ODIL 35 (2004), 319. 38

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whaling in the future once the accompanying revised management scheme on enforcement is completed.48 As a result of polarized views on the ultimate aim of this convention49, the International Whaling Commission’s activity has resulted in periodic meetings in which ‘rival groups [of States] agree to disagree on crucial issues’.50 Notably, UNCLOS does not refer explicitly to the International Whaling Commission (IWC), the only international organization related to marine mammals that was in existence at the time of its negotiation. This omission, and the reference to international organizations in plural, implicitly recognizes the dissatisfaction with the IWC’s activities to conserve marine mammals and leaves the door open for the application of other international instruments. 51 Other relevant institutions in fact include the UN Environment Programme, with its regional seas conventions, and the Food and Agriculture Organization of the United Nations, as well as other international organizations that address activities that negatively impact on marine mammals, such as land-based sources of marine pollution.52 One global international regulatory instrument is the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES),53 which currently lists all whale species in its Appendix I, reflecting the IWC moratorium on commercial whaling54 as well as in recognition of the fact that ‘international trade in whale meat and other products [otherwise lacks] adequate international monitoring or control’.55 In further acknowledgement that any illegal trade in whale products undermines the effectiveness of both CITES and the IWC, CITES parties also authorized the Secretariat to exchange information and consult with the IWC on all proposals to list or delist cetaceans from its Appendices. 56 Several regional arrangements should also be regarded as relevant for the purposes of Art. 65. First of all, certain whaling countries (Norway, Iceland, Greenland and the Faroe Islands) established the Agreement on Cooperation in Research, Conservation and Management of Marine Mammals in the North Atlantic, which established the North Atlantic Marine Mammal Commission with the objective to contribute through regional consultation and cooperation to the conservation, rational management and study of marine mammals in the North Atlantic.57 While this organization is largely seen as an alternative forum to the IWC, it has so far not functioned as a regulatory body but only as a forum for data collection.58 The Convention on the Conservation of Migratory Species of Wild Animals (CMS) is also a salient international framework that has focused on marine mammals, listing several cetaceans 48 Proelss (note 6), paras. 15–17, refers to the revised management scheme as ‘widely considered as one of the most rigorous and conservative management schemes for living marine resources ever developed’; while Carlarne (note 27), 14–21 notes criticism for its inadequate ecosystem approach. 49 See ICJ, Case Concerning Whaling in the Antarctic (Australia v Japan; New Zealand Intervening), Merits, Judgment of 31 March 2014, ICJ Reports (2014), 226, para. 56, where the Court highlighted that ‘amendments to the Schedule and recommendations by the IWC may put an emphasis on one or other objective pursued by the Convention, but cannot alter its object and purpose.’ 50 Birnie (note 3), 275. 51 Ibid. 52 Ibid., 265, 272. 53 Erik Franckx, The Protection of Biodiversity and Fisheries Management: Issues Raised by the Relationship between CITES and LOSC, in: David Freestone et al. (eds.), The Law of the Sea: Progress and Prospects (2006), 210. 54 Birnie (note 3), 276; Proelss (note 6), para. 18; Alexander Gillespie, Whaling Diplomacy (2005), 337–338. Although attempts have been made to down-list certain whale species, these have been so far unsuccessful, ibid., 338–345. 55 COP CITES, Illegal Trade in Whale Meat, Resolution Conf. 9.12 (CoP9) (1994); see comments by Gillespie (note 53), 328. 56 COP CITES, Conservation of Cetaceans, Trade in Cetacean Specimens and the Relationship with the International Whaling Commission, Resolution Conf. 11.4 (Rev. CoP 12) (2000); see also Gillespie (note 54), 328, who also reports on IWC resolutions on trade in whale products before and after the adoption of CITES; Carlarne (note 27), 22–28. 57 Art. 2 Agreement on Cooperation in Research, Conservation and Management of Marine Mammals in the North Atlantic. 58 Proelss (note 6), paras. 19–20; Carlarne (note 26), 29.

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in its appendices, and having become ‘the foremost international body’ for the conservation of small cetaceans in particular.59 In addition, a series of regional conservation agreements have been developed in the framework of CMS, such as the Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area (ACCOBAMS), the Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas, the Agreement on the Conservation of Seals in the Wadden Sea, the Memorandum of Understanding on the Conservation and Management of Dugongs and their Habitats throughout their Range,60 the Memorandum of Understanding concerning Conservation Measures for the Eastern Atlantic Populations of the Mediterranean Monk Seal,61 and the Memorandum of Understanding for the Conservation of Cetaceans and Their Habitats in the Pacific Islands Region.62 These agreements have been considered pure conservation treaties, being based on the precautionary approach and having led to the adoption of comprehensive conservation and management plans.63 Notably these agreements recognize in their preambles ‘the importance of other global and regional instruments […] such as the [ICRW]’.64 In 2011 CMS parties adopted a Global Programme of Work for Cetaceans,65 including global collaborative action to address entanglement and by-catch and climate change as a high priority; ship strikes, pollution, marine noise and habitat and feeding ground degradation as a lower priority; as well as the development of a formal process within CMS for providing comments to CITES on proposals to amend the latter’s Appendices and to seek comments from CITES on proposals to amend the CMS Appendices.66 18 Other relevant agreements include the 1998 Agreement on the International Dolphin Conservation Programme,67 which aims to progressively reduce the incidental dolphin mortalities in tuna purse-seine fishery to levels approaching zero through the setting of annual limits and the long-term sustainability of the tuna stocks in the Agreement area. Its implementation is being coordinated by the ICCAT. Another prominent instrument is the 1999 Agreement between France, Italy and Monaco establishing the Ligurian Sea Sanctuary in the Mediterranean Sea establishing an area within which killing, attempt to taking and harassment of cetaceans (including small cetaceans) is prohibited, as well as providing an innovative framework to regulate habitat preservation (in terms of prevention of pollution and restriction to navigation), fishing techniques, scientific research, whale-watching, and education activities.68 19 Some States have also unilaterally addressed this issue by banning imports of fish caught using techniques which may be harmful to marine mammals. However, such action has

59

Gillespie (note 54), 333. UNEP/CMS, Memorandum of Understanding on the Conservation and Management of Dugongs and their Habitats throughout Their Range, 31 October 2007, available at: http://www.cms.int/species/dugong/pdf/Annex_08_Dugong_MoU.pdf. 61 UNEP/CMS, Memorandum of Understanding Concerning Conservation Measures for the Eastern Atlantic Populations of the Mediterranean Monk Seal (Monachus Monachus), 18 October 2007, available at: http:// www.cms.int/species/monk_seal/Monk_Seal_MoU_with_signatures_En.pdf. 62 UNEP/CMS, Memorandum of Understanding for the Conservation of Cetaceans and Their Habitats in the Pacific Islands Region, 9 September 2006, available at: http://www.cms.int/species/pacific_cet/_CMS_Pacific_Cetaceans_MoU_E_amended.pdf. 63 Proelss (note 6), para. 23. For other relevant agreements, see ibid., paras. 25–26. 64 E. g., Recital 11 Preamble ACCOBAMS. This reflects the conflict clause in Art. XII (2) CMS, Gillespie (note 54), 332. 65 COP CMS, Global Programme of Work for Cetaceans, UN Doc. UNEP/CMS/Resolution 1.15 (2011). 66 Ibid. 67 Agreement on the International Dolphin Conservation Program, 15 May 1998, available at: http://iattc.org/ PDFFiles2/AIDCP-amended-Oct-2009.pdf. It was adopted by the 35th Intergovernmental Meeting on the Conservation of Tunas and Dolphins in the Eastern Pacific Ocean; the Secretariat is hosted in Inter-American Tropical Tuna Commission (ICCAT). 68 L’Accord relatif a ` la cre´ation en Me´diterrane´e d’un Sanctuaire pour le Mammife`res Marins, 25 November 1999 (original languages are French and Italian), available at: http://www.oceanlaw.net/texts/sanctuary_fr.htm For a legal analysis of the treaty, see Tullio Scovazzi, The Mediterranean Marine Mammals Sanctuary, IJMCL 16 (2001), 132. 60

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sometimes been challenged as a violation of international trade rules.69 The most recent of these cases concerned a United States measure designed to promote the conservation of dolphins by imposing strict conditions for the use of a ‘dolphin-safe’ label on tuna products imported into the United States. In response to a challenge by Mexico, the Appellate Body of the World Trade Organization found there was a violation of the non-discrimination provision in the Agreement on Technical Barriers to Trade because tuna caught in the Eastern Tropical Pacific had to meet more stringent conditions in order to be labeled ‘dolphin-friendly’ compared with tuna caught in other parts of the world.70 At the same time, the Appellate Body confirmed that the Agreement on Technical Barriers to Trade allowed the United States to adopt a unilateral standard which was stricter than the standards contained in the 1998 Agreement on the International Dolphin Conservation Programme to which it was a party.71 It can be concluded that Art. 65 is ‘a framework’ provision the implementation of which is 20 dependent on more specific regional and global agreements. 72 Its merit has been allowing, if not encouraging, continued debate on marine mammals regulation in a variety of international fora73 and to some extent also their cooperation.74

Article 66 Anadromous stocks 1. States in whose rivers anadromous stocks originate shall have the primary interest in and responsibility for such stocks. 2. The State of origin of anadromous stocks shall ensure their conservation by the establishment of appropriate regulatory measures for fishing in all waters landward of the outer limits of its exclusive economic zone and for fishing provided for in paragraph 3(b). The State of origin may, after consultations with the other States referred to in paragraphs 3 and 4 fishing these stocks, establish total allowable catches for stocks originating in its rivers. 3. (a) Fisheries for anadromous stocks shall be conducted only in waters landward of the outer limits of exclusive economic zones, except in cases where this provision would result in economic dislocation for a State other than the State of origin. With respect to such fishing beyond the outer limits of the exclusive economic zone, States concerned shall 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. (b) The State of origin shall cooperate in minimizing economic dislocation in such other States fishing these stocks, taking into account the normal catch and the mode of operations of such States, and all the areas in which such fishing has occurred. (c) States referred to in subparagraph (b), participating by agreement with the State of origin in measures to renew anadromous stocks, particularly by expenditures for 69 See e. g. GATT Panel Report, US – Restrictions on Imports of Tuna, DS21/R, 3 September 1991, unadopted, BISD 39S/155. 70 Report of the WTO Appellate Body, US – Measures concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/AB/R, 16 May 2012, para. 297: ‘the United States has not demonstrated that the difference in labeling conditions for tuna products containing tuna caught by setting on dolphins in the ETP, on the one hand, and for tuna products containing tuna caught by other fishing methods outside the ETP, on the other hand, is ‘calibrated’ to the risks to dolphins arising from difference fishing methods in different areas of the ocean’. 71 Ibid., para. 401. 72 Proelss (note 6), para. 14. 73 Birnie (note 3), 266. 74 E. g., the above-mentioned cooperation between CITES and the IWC and also the, IWC, Memorandum of Understanding between the Secretariat of the IWC and the Secretariat of the CMS, Appendix 2, IWC 52nd Meeting Report (2001), where the two bodies ‘to the extent possible, coordinate their programme of activities to ensure that their implementation is complementary and mutually supportive’, Gillespie (note 54), 332–337.

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1

Part V. Exclusive economic zone

that purpose, shall be given special consideration by the State of origin in the harvesting of stocks originating in its rivers. (d) Enforcement of regulations regarding anadromous stocks beyond the exclusive economic zone shall be by agreement between the State of origin and the other States concerned. 4. In cases where anadromous stocks migrate into or through the waters landward of the outer limits of the exclusive economic zone of a State other than the State of origin, such State shall cooperate with the State of origin with regard to the conservation and management of such stocks. 5. The State of origin of anadromous stocks and other States fishing these stocks shall make arrangements for the implementation of the provisions of this article, where appropriate, through regional organizations. Bibliography: David J. Attard, The Exclusive Economic Zone in International Law (1987); Patricia W. Birnie, The Conservation and Management of Marine Mammals and Anadromous and Catadromous Species, in: Ellen Hey (ed.), Developments in International Fisheries Law (1999), 357–393; Jill L. Bubier, International Management of Atlantic Salmon, ODIL 19 (1988), 35–57; Walter W. Crozier/Pieter-Jan Scho¨ n/Gerald Chaput/Ted ´ . Maoile´idigh/Julian C. MacLean, Managing Atlantic Salmon (Salmo salar L.) in the Mixed (E.C.E.) Potter/Niall O Stock Environment: Challenges and Considerations, ICES Journal of Marine Science 61 (2004); William T. Burke, Anadromous Species and the New Law of the Sea, ODIL 22 (1991), 95–131; William T. Burke, U.S. Fishery Management and the New Law of the Sea, AJIL 76 (1982), 24–55; Parzival Copes, The Law of the Sea and Management of Anadromous Fish Stocks, ODIL 4 (1977), 233–259; Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (2009); Moritaka Hayashi, Fisheries in the North Pacific: Japan at a Turning Point, ODIL 22 (1991), 343–364; Ellen Hey, The Regime for the Exploitation of Transboundary Marine Fisheries Resources (1989); John W. Kindt, The Law of the Sea: Anadromous and Catadromous Fish Stocks, Sedentary Species, and the Highly Migratory Species, SJILC 11 (1984), 9–46; George S. Myers, Usage of Anadromous, Catadromous and Allied Terms for Migratory Fishes, Copeia (1949), 89–97; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993) Documents: FAO, Code of Conduct for Responsible Fisheries (1995); Large-scale Pelagic Driftnet Fishing and its Impact on the Living Marine Resources of the World’s Oceans and Seas, GA Res. 44/225 of 22 December 1989; NASCO, Regulatory Measure for Fishing for Salmon at West Greenland for 2012, 2013, 2014, Doc. WGC(12)12 (2012); NASCO, Resolution on Fishing for Salmon on the High Seas, Res. CNL(92)54 (1992); NASCO, Protocol Open for Signature by States Not Parties to the Convention for the Conservation of Salmon in the North Atlantic Ocean, Res. CNL(92)53 (1992); NASCO/NEA, Decision Regarding the Salmon Fishery in Faroese waters in 2013, 2014, 2015, Doc. NEA(12)7 (2012); North Pacific Anadromous Fish Commission, Annual Report 2010 (2010) Cases: Award between the United States and the United Kingdom, Relating to the Rights of Jurisdiction of United States in the Bering’s Sea and the Preservation of Fur Seals (United States v. United Kingdom), Decision of 15 August 1893, RIAA XXVIII, 263 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 1. ‘anadromous stocks’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 2. ‘States [of origin] shall have the primary interest in and responsibility for such stocks’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 3. ‘Fisheries for anadromous stocks shall be conducted only in waters landward of the outer limits of exclusive economic zones’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 4. ‘anadomous stocks migrat[ing] into or through the waters […] of a State other than the State of origin’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 5. ‘The State of origin […] and other States fishing these stocks shall make arrangements for the implementation of the provisions of this article’ . . . . . . . . 24

I. Purpose and Function 1

Anadromous species present a particular problem for conservation and management because of their peculiar migratory habits; they originate in the rivers and lakes of a single 528

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2–7

Art. 66

State, before migrating out to sea where they spend the majority of their adult lives. Towards the end of their lives, these fish return to the same river in which they were born in order to breed. It follows that much of the cost associated with conserving and managing anadromous species falls upon the State of origin, as they must ensure that the fish can pass in and out of their rivers. The State of origin must often make a choice between using a river for fish rearing as opposed to other uses.1 Where it is possible to combine these uses, it can come at a high financial cost. Moreover, the State of origin must protect the spawning rivers from pollution, an aim which may require the abatement of otherwise economically valuable activities. The conservation and management regime established by Art. 66 is designed to take into 2 account the particular circumstances of anadromous fish and to compensate the State of origin for the measures that it must take in order to promote the conservation of its anadromous stocks. It achieves this by giving certain rights to the State of origin to manage anadromous fish stocks. Art. 66 operates as lex specialis. Whilst Art. 61 may remain relevant in relation to the 3 adoption of appropriate regulatory measures, including a total allowable catch, Art. 66 provides a special framework for determining which States may participate in fishing for anadromous species, replacing the general provisions of Art. 62. Art. 66 also restricts the rights of other States to fish for anadromous species on the high 4 seas. Thus, Art. 66 operates as an important exception to freedom of fishing on the high seas as established in Art. 87 (1)(e) and concretized in Art. 116. 2

II. Historical Background Prior to the conclusion of UNCLOS, anadromous species were largely subject to freedom 5 of fishing on the high seas, subject to any particular arrangement entered into by States. 3 Indeed, in the Bering Fur Seals Arbitration, the Tribunal explicitly rejected the argument that a State of origin should have preferential rights over a species originating in its territory; it found that ‘the United States has not any right of protection or property in the fur-seals frequenting the islands of the United States in Bering Sea, when such seals are found outside the ordinary three-mile limit.’4 Several States at UNCLOS III sought to restrict the exploitation of anadromous species as 6 part of a broader package regulating access to fish. For its part, Ireland proposed that the State of origin was to be ‘the sole harvester of [anadromous] stocks’. 5 Other proposals would have permitted the continuation of fishing by other States on the high seas subject to the control of the State of origin.6 A compromise was achieved through informal consultations undertaken through the 7 Evensen Group which presented a draft text to the third session of the Conference in 1975. 7 1 See Parzival Copes, The Law of the Sea and Management of Anadromous Fish Stocks, ODIL 4 (1977), 233, 243–244. 2 For further information, see Rayfuse on Art. 116. 3 There were some treaties which sought to restrict fishing for salmon on the high seas; see e. g. Moritaka Hayashi, Fisheries in the North Pacific: Japan at a Turning Point, ODIL 22 (1991), 343, 344–349. 4 Award between the United States and the United Kingdom, Relating to the Rights of Jurisdiction of United States in the Bering’s Sea and the Preservation of Fur Seals (United States v. United Kingdom), Decision of 15 August 1893, RIAA XXVIII, 263, 269. 5 Statement of O’Meallain (Ireland), Second Committee UNCLOS III, 22nd Meeting, UN Doc. A/CONF/C.2/ SR.22 (1974), 171, 181 (para. 142). See also the proposal of Ireland which would have had the effect of banning fishing for anadromous species beyond the exclusive economic zone (EEZ), Second Committee UNCLOS III, Ireland: Draft Article on Anadromous Species, UN Doc. A/CONF.62/C.2/L.41 (1974), OR III, 220. 6 E. g. Sea-Bed Committee, United States: Revised Draft Fisheries Article, UN Doc. A/AC.138/SC.II/L.9 (1972). See also Second Committee UNCLOS III, Canada: Working Paper on the Special Case of Salmon – the Most Important Anadromous Species, UN Doc. A/CONF.62/C.2/L.81 (1974), OR III, 240. 7 UNCLOS III, The Economic Zone (1975, mimeo.), reproduced in: Renate Platzo ¨ der, The Third United Nations Conference on the Law of the Sea: Documents, vol. IV (1982), 209, 209 (Article 13).

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8–12

Part V. Exclusive economic zone

According to this document, high seas fishing for anadromous species could continue, but only subject to the agreement of the State of origin. A version of this text was incorporated into the negotiating text at the end of the third session and further refinements were made over the following sessions. In particular, the text was amended to replace the reference to the ‘exclusive economic zone’ with a reference to ‘waters landward of the outer limits of the exclusive economic zone’ in order to emphasize that the provision applied to internal waters and territorial sea, as well as the EEZ.8

III. Elements 1. ‘anadromous stocks’ 8

Anadromous fish are those species which ‘spend most of their lives in the sea and migrate to fresh water to breed’.9 By far the most commercially important species of anadromous fish is the salmon but the category also includes some species of shad, trout, striped bass, smelt and sturgeon.

2. ‘States [of origin] shall have the primary interest in and responsibility for such stocks’ Art. 66 (1) recognizes that ‘States in whose rivers anadromous stocks originate shall have the primary interest in and responsibility for such stocks’. These States are thereafter referred to as the ‘State of origin’ and the identification of this category of States is central to the operation of the provision. The language is not completely free from ambiguity. The term ‘originate’ could conceivably refer to a State through whose rivers the stocks pass through prior to entering the open ocean. The better interpretation of this term, however, is where the stocks spawn.10 It follows that there is a single State of origin for any particular anadromous stock and it is this State which has the primary interest in and responsibility for the conservation and management of the stock. This interpretation is supported by the fact that Art. 66 (2) refers to ‘the State of origin’ in the singular. 10 Whilst the State of origin has the primary interest in anadromous stocks, it does not follow that it has an exclusive right to fish those stocks. Article 66 regulates the circumstances in which other states may fish for anadromous species. 9

3. ‘Fisheries for anadromous stocks shall be conducted only in waters landward of the outer limits of exclusive economic zones’ Art. 66 (3)(a) provides that ‘[f]isheries for anadromous stocks shall be conducted only in waters landward of the outer limits of the exclusive economic zones, except in cases where this provision would result in economic dislocation for a State other than the State of origin.’ Thus, the general rule is that fishing for anadromous stocks shall not take place on the high seas. This is an exception to the principle of freedom of fishing on the high seas (� Art. 87 (1)(e); Art. 116) and it is explicitly recognized in Art. 116 (b) which makes freedom of fishing on the high seas subject to the rights, duties, and interests of coastal States provided for, inter alia, in Art. 66. 12 The one exception to the ban on high seas fishing for anadromous species is where it would cause ‘economic dislocation’ for other States. The purpose of this exception is to 11

8 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 674. 9 George S. Myers, Usage of Anadromous, Catadromous and Allied Terms for Migratory Fishes, Copeia (1949), 89, 94. 10 John W. Kindt, The Law of the Sea: Anadromous and Catadromous Fish Stocks, Sedentary Species, and the Highly Migratory Species, SJILC 11 (1984), 9, 20–21; William T. Burke, U.S. Fishery Management and the New Law of the Sea, AJIL 76 (1982), 24, 45.

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13–16

Art. 66

permit nationals of those States which had traditionally fished for anadromous species to continue fishing those stocks. However, it would appear to exclude those States which have not previously fished for anadromous species from commencing high seas fishing. 11 Indeed, it has been suggested that this provision was inserted in order to accommodate the interests of Japan whose nationals had traditionally been active in fishing for salmon in the high seas of the North Pacific Ocean.12 The need for the State or origin to take into account the interests of other States is stressed by Art. 66 (3)(b) which obliges the State of origin to ‘cooperate in minimizing economic dislocation in such other States fishing those stocks, taking into account the normal catch and the mode of operations of such States, and all the areas in which such fishing has occurred’. This provision suggests that the State of origin cannot arbitrarily refuse to permit other States to fish for anadromous stocks on the high seas where there is evidence that a ban might lead to economic dislocation. It is not entirely clear what is meant by ‘economic dislocation’ in this provision. In 13 particular, it can be asked whether any economic dislocation will suffice or whether there is a de minimis standard. Another question is whether or not it grants a right for other States to continue fishing for anadromous stocks on the high seas on a permanent basis. B URKE interprets this provision to mean that ‘high seas fishing for anadromous species is an activity that is to be progressively eliminated’ and ‘this is to be accomplished by continuously restricting the level of effort until it is no longer economical to continue’. 13 This interpretation perhaps goes beyond the ordinary meaning of the text and it would seem to be open to the concerned States to decide how long high seas fishing should continue. Where high seas fishing does continue, it is clear from Art. 66 that it is subject to the 14 agreement of the State of origin. In this regard, the Convention provides that ‘with respect to fishing beyond the outer limits of the exclusive economic zone, States concerned shall 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 those stocks.’14 Ideally such consultations would result in an agreement on the appropriate regulatory measures. If a State cannot reach agreement with the State of origin, however, it would appear that it cannot fish for anadromous species on the high seas. According to Art. 66 (2), any fishing on the high seas must comply with the regulatory measures and total allowable catch (� Art. 61 (1)) set by the State of origin. An implicit condition for other States to fish for anadromous species on the high seas is 15 participation in any ‘measures to renew anadromous species’ taken by the State of origin, and Art. 66 contemplates ‘possible payments to the State of origin to support conservation measures’.15 This quid pro quo is further expressed in Art. 66 (3)(c) which provides that ‘States referred to in subparagraph (b), participating by agreement with the State of origin in measures to renew anadromous stocks, particularly by expenditures for that purpose, shall be given special consideration by the State of origin in the harvesting of stocks originating in its rivers.’

Although the State of origin has the ability to set ‘appropriate regulatory measures’ for 16 anadromous stocks on the high seas, its authority does not extend to the unilateral enforcement of those measures. Art. 66 (3)(d) makes clear that ‘enforcement of regulations regarding anadromous stocks beyond the exclusive economic zone shall be by agreement between the State of origin and the other States concerned’. Thus, the principle of exclusive flag State jurisdiction (� Art. 92 (1)) continues to apply to the enforcement of conservation measures, in the absence of an agreement to the contrary. This is clearly a problem for the State of origin because, even if it could detect unlawful fishing by other States, it cannot 11

In agreement, see William T. Burke, Anadromous Species and the New Law of the Sea, ODIL 22 (1991), 95,

104.

12

Ibid., 106–107. Ibid., 105. 14 Art. 66 (3)(a). 15 Burke (note 11), 106. 13

Harrison

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Art. 66

17–19

Part V. Exclusive economic zone

take unilateral action. Rather, under general international law, it is limited to informing the flag State of the unlawful activity. 17 The Anadromous Stocks Convention deals to some extent with the problem of enforcement on the high seas. According to its Art. V, ‘the duly authorized officials of any Party may board vessels of the other Parties which can be reasonably believed to be engaged in fishing for or incidental taking of anadromous fish.’ The powers of the authorized officials include the inspection of the vessel and its equipment, as well as the ability to arrest the vessel and bring it back to port. However, only the flag state is authorized to take enforcement proceedings against a delinquent vessel and the vessel must be handed over to the flag State as promptly as practicable.16 This provides a good example of the type of cooperation in enforcement that can be agreed by interested parties under Art. 66 (3)(d). This mechanism only allows action against another party to the Convention and the activities of non-parties remains a problem. 18 Both the Anadromous Stocks Convention and the Convention for the Conservation of Salmon in the North Atlantic Ocean (Salmon Convention) contain provisions which require the parties to invite the attention of any non-party to activities of its vessels which appear to adversely affect the conservation of anadromous stocks. 17 Indeed, a flag State is arguably under an obligation to take such measures as are necessary to ensure that its vessels do not violate relevant conservation and management measures. 18 In practice, flag States often cooperate upon request from States of origin to inspect vessels, either on an ad hoc basis 19 or through standing cooperative arrangements.20 Moreover, port State measures are increasingly used to follow up alleged IUU fishing activities on the high seas.21 19 In practice, there is little fishing for anadromous species on the high seas today. Both of the major treaties which have been concluded to regulate the conservation and management of anadromous species have prohibited the taking of such species on the high seas. 22 Indeed, the Anadromous Stocks Convention not only addresses direct fishing for anadromous stocks, but it also regulates the incidental taking of anadromous species, providing that ‘incidental taking of anadromous fish shall be minimized to the maximum extent possible’.23 The Annex to the Anadromous Stocks Convention provides guidance on how states should minimize the taking of incidental catch of anadromous species and the North Pacific Anadromous Fish Commission is empowered to recommend additional measures to avoid or reduce incidental taking of anadromous fish on the high seas.24

16 Art. V (2) Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean, 11 February 1992, TIAS 11465 (Anadromous Stocks Convention). 17 Art. IV (1) Anadromous Stocks Convention; Art. 2 (3) Convention for the Conservation of Salmon in the North Atlantic Ocean, 2 March 1982, UNTS 1338, 33. See also NASCO, Protocol Open for Signature by States Not Parties to the Convention for the Conservation of Salmon in the North Atlantic Ocean, Res. CNL(92)53 (1992); NASCO, Resolution on Fishing for Salmon on the High Seas, Res. CNL(92)54 (1992). 18 See e. g. Art. III (1)(a) Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, 24 November 1993, UNTS 2221, 120; FAO, Code of Conduct for Responsible Fisheries (1995), Art. 6.10. 19 An example is the agreement of the Cambodian government to allow the US coastguard to board a Cambodian flagged vessel suspected of high seas drift net fishing for salmon in the North Pacific in April/May 2010. For further examples, see Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (2009), 120–124. 20 E. g. the Memorandum of Understanding between the Government of the United States of America and the Government of the People’s Republic of China on Effective Cooperation and Implementation of United Nations General Assembly Resolution 46/215 of December 20, 1991, 3 December 1993. For an explanation of the Memorandum of Understanding and its implementation, see Guilfoyle (note 19), 119–120. 21 See e. g. the enforcement activities reported by the Republic of Korea at the 18th Annual Meeting of the North Pacific Anadromous Fish Commission, North Pacific Anadromous Fish Commission, Annual Report 2010 (2010), 61–62. 22 Art. III (1)(a) Anadromous Stocks Convention; Art. 2 (1) Salmon Convention. 23 Art. III (1)(b) Anadromous Stocks Convention. It continues in Art. III (1)(c): ‘the retention on board of fishing vessel of anadromous fish taken as an incidental taking in a fishing activity directed at non-anadromous fish shall be returned immediately to the sea’. 24 Art. IX (12) Anadromous Stocks Convention.

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4. ‘anadromous stocks migrat[ing] into or through the waters […] of a State other than the State of origin’ The majority of fishing for anadromous species takes place landward of the outer limits of the EEZ. The State of origin, if it has claimed an EEZ, clearly has a right to fish for such species (� Art 56 (1)(a)). In addition, anadromous species may migrate through the territorial sea (� Art. 2) or EEZ of other coastal States, and such States will also have sovereign rights over the living resources within their jurisdiction. As noted by COPES, the problem of interception by neighbouring States is ‘more serious to the [S]tate of origin than that of high seas fishing in at least one respect: the [S]tate of origin is faced with the absolute authority of the intercepting coastal [S]tate in that [S]tate’s own waters’.25 Unlike States wishing to fish on the high seas, other coastal States do not need the permission of the State of origin to fish for anadromous species within their EEZ.26 Yet, it does not follow that they have complete freedom to fish for these stocks. The Convention deals with this issue by imposing a duty of cooperation on the relevant States in Art. 66 (4). This is a more specific duty than the duty of cooperation in Art. 63 (1) which otherwise applies where the same stock occurs within the EEZ of one or more coastal States. One example of such cooperation is the 1985 Treaty between the Government of Canada and the Government of the United States of America Concerning Pacific Salmon. 27 These countries have been cooperating on the taking of salmon stocks originating in their rivers for many years.28 The 1985 Treaty establishes a framework for cooperation whereby the two States seek to ‘prevent overfishing’, provide for ‘optimum production’, and to ‘provide for each Part to receive the benefits equivalent to the production of salmon originating in its waters’.29 Notably, the treaty recognizes ‘the desirability in most cases of reducing interceptions’, although this objective has to be balanced against ‘the desirability in most cases of avoiding undue disruption of existing fisheries’.30 The Salmon Convention also establishes an institutional framework for the purposes of contributing to the conservation, restoration, enhancement and rational management of salmon stocks in the North Atlantic Ocean.31 It is less clear what happens when coastal States cannot agree on an appropriate conservation regime. BURKE suggests that the State of origin has the ability to set a total allowable catch in this situation.32 This argument is based upon the text of Art. 66 (1) which provides that ‘the State of origin may, after consultations with the other States referred to in paragraph 3 and paragraph 4 fishing these stocks, establish total allowable catches for stocks originating in its rivers’. Yet, it would appear that the State of origin cannot dictate other regulatory measures to coastal States. Art. 66 (2) only confers a right on the State of origin to set ‘appropriate regulatory measures’ for fishing in waters landward of the outer limits of its own EEZ and on the high seas; this provision does not extend to the waters landward of the outer limits of the EEZ of other States. Thus, other coastal States appear to have some discretion to adopt their own regulatory measures. Moreover, UNCLOS does not deal with the situation of mixed stocks 25

Copes (note 1), 251. David J. Attard, The Exclusive Economic Zone in International Law (1987), 188. 27 Treaty between the Government of Canada and the Government of the United States of America Concerning Pacific Salmon, 28 January 1985, UNTS 1469, 358. 28 See e. g. 1930 Convention for the Protection, Preservation and Extension of the Sockeye Salmon Fisheries of the Fraser River System, 26 May 1930, LNTS 184, 305, as well as its associated protocols. 29 Art. III (1) Treaty between the Government of Canada and the Government of the United States of America Concerning Pacific Salmon. 30 Art. III (3) Treaty between the Government of Canada and the Government of the United States of America Concerning Pacific Salmon. Interception is defined in Art. I (4) of the 1985 Treaty as ‘the harvesting of salmon originating in the waters of one Party by a fishery of the other Party’. 31 See infra MN 25. 32 Burke (note 11), 114. 26

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20

21

22

23

Art. 66

24–25

Part V. Exclusive economic zone

where salmon originating in the rivers of different States intermingle at sea. 33 In this situation, it would seem that cooperation between States is imperative in order to ensure the successful conservation of anadromous species.

5. ‘The State of origin […] and other States fishing these stocks shall make arrangements for the implementation of the provisions of this article’ It is clear that ‘the successful implementation of article 66 depends very much on cooperation among the concerned [S]tates’.34 Art. 66 (5) explicitly calls for the State of origin and other interested States to implement their duty of consultation and cooperation through regional organizations. This provision is worded in mandatory language (‘shall’) although the effect of the provision is softened by the words ‘as appropriate’. In practice, several international organizations exist which seek to manage stocks of anadromous species. 25 In the Atlantic Ocean, the only anadromous stock to be regulated on a cooperative basis is salmon. At the time of writing, there were six parties35 to the Salmon Convention which establishes the North Atlantic Salmon Conservation Organization (NASCO). 36 The objective of NASCO is to ‘contribute through consultation and co-operation to the conservation, restoration, enhancement and rational management of salmon stocks subject to this Convention, taking into account the best scientific evidence available to it’. 37 As well as banning fishing for salmon on the high seas, the Salmon Convention also prohibits fishing for salmon beyond 12 nautical miles (nm) with the exception of West Greenland and the Faroe Islands where fishing is generally permitted up to 40 nm and 200 nm respectively. 38 Whilst NASCO cannot adopt decisions concerning the management of salmon harvests within the area of fisheries jurisdiction of the parties39, it has the power to regulate fishing within the jurisdiction of one party where it affects salmon originating in the rivers of another party. 40 NASCO carries out most of its work through a series of regional commissions, namely the North American Commission, the West Greenland Commission and the North-East Atlantic Commission.41 Each Commission has the power to agree on regulatory measures, including quotas, for the fishing of mixed stocks.42 The commissions operate by unanimity so that all members of a Commission must agree to a proposed measure43; regulatory measures proposed by a Commission become binding on its members at a point in time specified by the Secretary or the Commission itself.44 In particular, NASCO has sought to regulate the distant water mixed stock fisheries in West Greenland and the Faroe Islands with the 24

33 For an assessment of the problems of managing mixed stocks, see Walter W. Crozier et al, Managing Atlantic Salmon (Salmo salar L.) in the Mixed Stock Environment: Challenges and Considerations, ICES Journal of Marine Science 61 (2004), 1344–1358. 34 Patricia W. Birnie, The Conservation and Management of Marine Mammals and Anadromous and Catadromous Species, in: Ellen Hey (ed.), Developments in International Fisheries Law (1999), 357, 373. 35 Canada, Denmark (in respect of the Faroe Islands & Greenland), the European Union, Norway, the Russian Federation and the United States of America. According to the NASCO website, Iceland withdrew from NASCO with effect from 31 December 2009 because of financial considerations, but has indicated that it intends to reaccede to the Convention when the economic situation improves: http://www.nasco.int/about.html. 36 Art. 3 (1) Salmon Convention. For an assessment of the early work of the Commission, see Jill L. Bubier, International Management of Atlantic Salmon, ODIL 19 (1988), 35. 37 Art. 3 (2) Salmon Convention. 38 Art. 2 (2) Salmon Convention. 39 Art. 4 (2) Salmon Convention. 40 Arts. 7 (1) and 8 Salmon Convention. 41 Arts. 7–11 Salmon Convention. 42 Arts. 7 (1)(b) and 8 (b) Salmon Convention. The powers of the North American Commission differ slightly from the powers of the other two Commissions. 43 Art. 11 (3) Salmon Convention. 44 Art. 13 (2) Salmon Convention. Members may also lodge an objection after the adoption of a regulatory measure which prevents the measure becoming binding on all members of the Commission, Art. 13 (3) Salmon Convention.

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Art. 66

adoption of decisions or regulatory measures limiting the amount of fish caught. 45 Another function of the commissions is to make recommendations concerning scientific research. 46 NASCO does not have its own scientific body but it cooperates closely with International Council for the Exploration of the Seas47 for the purposes of gathering scientific data on salmon stocks within the Convention area. The Anadromous Stocks Convention establishes the North Pacific Anadromous Fish 26 Commission whose objective is to promote the conservation of anadromous stocks in the waters of the North Pacific Ocean and its adjacent seas north of 33 degrees north latitude and beyond 200 nm from national baselines.48 The Commission regulates fishing for Chum Salmon, Coho Salmon, Pink Salmon, Sockeye Salmon, Chinook Salmon, Cherry Salmon, Steelhead Trout. At the time of writing, there were five members of the Commission. 49 The Commission replaced the more fragmented regime which had previously applied to salmon fisheries in the North Pacific.50 In contrast to the North Atlantic Salmon Fisheries Organization, the North Pacific Anadromous Fish Commission cannot make any recommendations for measures for the conservation of anadromous species within national jurisdiction. Rather its mandate is limited to promoting cooperation in areas beyond national jurisdiction. As noted above, the Anadromous Stocks Convention prohibits fishing for anadromous stocks on the high seas and the main role of the Commission is therefore related to the enforcement of this ban.51 In doing so, the Commission has significantly contributed to the promotion of the moratorium on large-scale pelagic drift net fishing adopted by the United Nations General Assembly in 1989.52 The Commission is also responsible for coordinating the conduct of scientific research and the exchange of information relating to anadromous stocks. 53 In addition, the Commission is competent to consider matters related to the incidental taking of anadromous species54 and the conservation of ecologically related species.55 As noted above, Canada and the United States also cooperate on the issue of interception 27 bilateral arrangements. The 1985 Treaty between the Government of Canada and the Government of the United States of America concerning Pacific Salmon establishes a Pacific Salmon Commission composed of representatives of both parties. The Commission has powers to recommend regulations to the parties on the management and conservation of salmon. On adoption by the parties, fisheries regimes proposed by the Commission become binding and the parties are under a duty to establish and enforce regulations to implement these fisheries regimes.56

45 In all but two years since 1998, an internal-use only fishery has been allowed in West Greenland, see NASCO, Regulatory Measure for Fishing for Salmon at West Greenland for 2012, 2013, 2014, Doc. WGC(12)12 (2012). There has also been no commercial salmon fishery in the Faroe Islands since the early 1990s, see NASCO/NEA, Decision Regarding the Salmon Fishery in Faroese waters in 2013, 2014, 2015, Doc. NEA(12)7 (2012). 46 Arts. 7(1) (d) and 8(c) Salmon Convention. 47 For further information on the International Council for the Exploration of the Seas, see www.ices.dk. 48 Art. VIII Anadromous Stocks Convention. 49 Canada, Japan, Republic of Korea, the Russian Federation, and the United States, see http://www.npafc.org/ new/about_convention.html. 50 See Moritaka Hayashi, Fisheries in the North Pacific: Japan at a Turning Point, ODIL 22 (1991), 343, 344–352. 51 Art. V Anadromous Stocks Convention. See supra MN 25. 52 Large-scale Pelagic Driftnet Fishing and its Impact on the Living Marine Resources of the World’s Oceans and Seas, GA Res. 44/225 of 22 December 1989. 53 Art. VII Anadromous Stocks Convention. 54 Art. III (1)(b) Anadromous Stocks Convention. 55 Art. VIII (3) Anadromous Stocks Convention. 56 Art. IV Treaty between the Government of Canada and the Government of the United States of America Concerning Pacific Salmon.

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Art. 67

1

Part V. Exclusive economic zone

Article 67 Catadromous species 1. A coastal State in whose waters catadromous species spend the greater part of their life cycle shall have responsibility for the management of these species and shall ensure the ingress and egress of migrating fish. 2. Harvesting of catadromous species shall be conducted only in waters landward of the outer limits of exclusive economic zones. When conducted in exclusive economic zones, harvesting shall be subject to this article and the other provisions of this Convention concerning fishing in these zones. 3. In cases where catadromous fish migrate through the exclusive economic zone of another State, whether as juvenile or maturing fish, the management, including harvesting, of such fish shall be regulated by agreement between the State mentioned in paragraph 1 and the other State concerned. Such agreement shall ensure the rational management of the species and take into account the responsibilities of the State mentioned in paragraph 1 for the maintenance of these species. Bibliography: Patricia Birnie, The Conservation and Management of Marine Mammals and Anadromous and Catadromous Species, in: Ellen Hey (ed.), Developments in International Fisheries Law (1999), 357–393; David Freestone/Kate K. Morrison, The Sargasso Sea Alliance: Seeking to Protect the Sargasso Sea IJMCL 27 (2012), 647–655; Ellen Hey, The Regime for the Exploitation of Transboundary Marine Fisheries Resources (1989); George S. Myers, Usage of Anadromous, Catadromous and Allied Terms for Migratory Fishes, Copeia (1949), 89–97; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Yoshifumi Tanaka, The International Law of the Sea (2nd edn. 2015) Documents: COP CBD, Decision Adopted by the Conference of the Parties to the Convention on Biological Diversity at its Eleventh Meeting: XI/17. Maine and Coastal Biodiversity: Ecologically or Biologically Significant Marine Areas (EBSAs), UN Doc. UNEP/CBD/COP/DEC/XI/17 (2012); CMS, Report of the 11th Meeting of the Conference of the Parties to the Convention on Migratory Species of Wild Animals (4– 9 November 2014), UN Doc. UNEP/CMS/COP11/REPORT (2014) Cases: ICJ, Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010, ICJ Reports (2010), 14; Lac Lanoux Arbitration (France v. Spain), Award of 16 November 1957, ILR 24, 101 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘catadromous species’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘[the host] State […] shall have responsibility for the management’ . . . . . . . . . . . 3. ‘Harvesting of catadromous species shall be conducted only in waters landwards of the outer limits of exclusive economic zones’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. ‘catadromous fish migrat[ing] through the exclusive economic zone of another State’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 3 3 4 7 8

I. Purpose and Function 1

In recognition of the fact that catadromous species have a close relationship with the State in whose waters they spend the majority of their time, Art. 67 establishes a lex specialis to address the exploitation (� Art. 56 (1)(a); Art. 62) of catadromous species.

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Catadromous species

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Art. 67

II. Historical Background UNCLOS is the first multilateral instrument to specifically regulate catadromous species as 2 a separate category from other fish stocks. Whilst catadromous species are economically less important than the other species for which a special regime is created (� Arts. 63–66), a single article was dedicated to the subject from the very beginning of UNCLOS III. The Main Trends Working Paper1 prepared at the second session of the Conference contained a single proposal in which ‘preferential rights’ were granted to the State in whose waters the fish spend the greater part of their life cycle.2 The proposal for catadromous species was further developed by the Evensen Group at the third session of the Conference. This group agreed that the State in whose waters catadromous species spend the greater part of their life cycle should have preferential rights.3 Where catadromous species migrated through the jurisdiction of other coastal States prior to entering the waters of the State where they spent the greater part of their life cycle, the proposal called for cooperation between the States concerned with a view to agreeing on a scheme for the rational management of the species. The text of the Evensen Group was incorporated with some minor changes into the negotiating text at the end of the third session.4 The final version of Art. 67 closely mirrors the text agreed at that time, subject only to some minor drafting changes.

III. Elements 1. ‘catadromous species’ Catadromous species are those species of fish which spend most of their lives in fresh 3 water but which migrate to sea to breed. Unlike highly migratory species, there is no list of species which are covered by Article 67 of the Convention.5 Nor is there a definition of ‘catadromous species’ in the Convention. The scope of the provision is therefore open to interpretation. As noted by MYERS, ‘there has never been much variation in the general usage of this term, although […] there may be some question in regard to how far into brackish or salt water a fish must go to be called catadromous.’ 6 The most prominent catadromous fish is the freshwater eel, species of which are found across the globe. 7 Several species of freshwater eel, including the European eel (Anguilla anguilla), Japanese eel (Anguilla japonica), and the American eel (Anguilla rostrata), are considered under threat by the International Union on the Conservation of Nature.8

1 UNCLOS III, Statement of Activities of the Conference During its First and Second Sessions, UN Doc. A/ CONF.62/L.8/Rev.1 (1974), OR III, 93, 107 (Main Trends Working Paper). 2 Ibid., 125. 3 UNCLOS III, The Economic Zone (1975, mimeo.), reproduced in: Renate Platzo ¨ der, The Third United Nations Conference on the Law of the Sea: Documents, vol. IV (1982), 209, 217 (Art. 14). 4 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 682. 5 Cf. Harrison/Morgera on Art. 64. 6 George S. Myers, Usage of Anadromous, Catadromous and Allied Terms for Migratory Fishes, Copeia (1949), 89, 94. 7 Nordquist/Nandan/Rosenne (note 4), 681. Freshwater eels fall within the Anguillidae family of fishes, which comprises 19 species and 6 sub-species. 8 For information on conservation status and specific threats, see e. g. the IUCN Red List, available at: http:// www.iucnredlist.org/.

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Art. 67

4–8

Part V. Exclusive economic zone

2. ‘[the host] State […] shall have responsibility for the management’ Responsibility for the management of catadromous species resides with the coastal State in whose waters the species spend the ‘greater part of their life cycle’. The provision assumes there is one State which bears this responsibility, therefore it is an exclusive responsibility.9 5 Art. 67 (2) does not exclude the other rules in Part V concerning the conservation of fish stocks. Thus, the coastal State is obliged to set an allowable catch as well as to promote the objective of optimum utilization in accordance with Arts. 61 and 62. As a consequence, other States may be permitted to exploit the surplus of the allowable catch which cannot be taken by the host State. 6 In addition to the general obligations relating to fisheries in the EEZ, Art. 67 (1) imposes further obligations on the host State, requiring it to ‘ensure the ingress and egress of migrating fish’. This may include keeping the river clear from obstacles or installing special facilities to assist migratory fish, such as fish ladders. 4

3. ‘Harvesting of catadromous species shall be conducted only in waters landwards of the outer limits of exclusive economic zones’ 7

Art. 67 deviates from the general rule of freedom of fishing on the high seas (� Art. 87 (1)(e); Art. 116) by providing that ‘harvesting of catadromous species shall be conducted only in waters landward of the outer limits of exclusive economic zone’.10 Thus, fishing for catadromous species on the high seas is totally prohibited under the Convention. The purpose of this prohibition is to prevent the capture of juveniles.11 In practice, states have also recognized the importance of protecting the spawning grounds of some catadromous species from other threats. In 2014, the representatives of Bermuda, the Azores, Monaco, the United Kingdom and the United States of America adopted the Hamilton Declaration, identifying the Sargasso Sea, which is the spawning ground for the European eel (Anguilla anguilla) and the American eel (Anguilla rostrata), as ‘an important open ocean ecosystem … which deserves recognition by the international community for ist high ecological and biological significance, its cultural importance and its outstanding universal value.’12 Under the Declaration, a Sargasso Sea Commission was established to encourage and facilitate voluntary collaboration toward the conservation of the Sargasso Sea.’13

4. ‘catadromous fish migrat[ing] through the exclusive economic zone of another State’ 8

In many situations, catadromous species will migrate between the waters of several coastal States. Other States are permitted to harvest catadromous species whilst they are present in their EEZ (� Art. 56 (1)(a)), or territorial sea (� Art. 2). Art. 67 (3) requires these States to cooperate with the host State concerning the management and harvesting of the fish. The purpose of such cooperation is to reach an agreement which ‘shall ensure the rational management of the species and take into account the responsibilities of the [host state] for the maintenance of these species’. 9

For a similar argumentation, see Harrison on Art. 66 MN 9. Art. 67 (2). 11 Yoshifumi Tanaka, The International Law of the Sea (2nd edn. 2015), 247. 12 Hamilton Declaration on Collaboration for the Conservation of the Sargasso Sea, para. 1; adopted at Hamilton Bermuda, 11 March 2014, available at: http://www.sargassoalliance.org/hamilton-declaration. Prior to this decision, the Sargasso Sea was described as an Ecologically and Biologically Significant Marine Area by the Conference of the Parties to the Convention on Biological Diversity, in part because of the fact that it is ‘the only breeding location for European and American eels[…]’; see CBD COP Decision XI/17 (2012), Annex, 23. 13 Ibid., para. 6. See also David Freestone/Kate K. Morrison, The Sargasso Sea Alliance: Seeking to Protect the Sargasso Sea IJMCL 27 (2012), 647–655. 10

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9–12 Art.

Catadromous species

67

This is one of the only references in the Convention to ‘rational management’. Yet, similar 9 provisions are found in other international agreements, and these instruments could be used to inform the interpretation of the Convention.14 One example is the 1975 Statute on the River Uruguay15 which requires the parties (Argentina and Uruguay) to contribute to the ‘optimum and rational management of the river’. In the Case concerning Pulp Mills on the River Uruguay, the International Court of Justice interpreted the relevant provision of the 1975 Statute as requiring ‘a balance between the Parties’ rights and needs to use the river for economic and commercial activities on the one hand, and the obligation to protect it from any damage to the environment that may be caused by such activities on the other’. 16 According to the Court, it was up to the parties to achieve such a balance through the institutional mechanisms established by the Statute. In this light, it would appear that the objective of ‘rational management’ in Art. 67 requires 10 interested States to negotiate a balance between their respective interests in fishing for catadromous species, whilst also taking into account the long-term conservation needs of those resources. At the same time, paragraph 3 suggests that the ‘responsibilities of the [host State] shall be taken into account in such negotiations’. HEY therefore concludes that the States involved in the negotiations are not equal but rather that ‘the interest of the state in whose waters [a catadromous species] spends the greater part of its life cycle are given special consideration. One can therefor [sic] assume that the interests of the state in whose waters the species spends the greater part of its life cycle will be dominant in determining the measures to be adopted.’17

Clearly States must use their best efforts to reach such an agreement: ‘paragraph 3 [of 11 Article 67] implies the obligation of the States concerned to negotiate such an agreement in good faith.’18 Yet, it is not clear what happens if agreement is not possible.19 Art. 67 (3) is not phrased as a duty to ‘seek to agree’ or a duty to ‘cooperate’, as are Arts. 63 and 64. Rather, it requires that ‘management, including harvesting, of such fish shall be regulated by agreement’. This statement, interpreted in the context of the whole of the article, could lead to the conclusion that no harvesting may take place without the agreement of the host State as it is the latter State which alone has ‘responsibility for management’. Yet, this conclusion is put into question by the fact that Art. 67 (2) subjects harvesting ‘to this article and other provisions of this Convention concerning fishing in these zones’, suggesting that Art. 67 does not derogate from the sovereign rights of coastal States over the living resources in their EEZ (� Art. 56 (1)(a)). From this perspective, other coastal States will have the right to harvest catadromous species, even in the absence of an agreement with the host State, albeit under the obligation to avoid undermining the host State’s management efforts. 20 This outcome is compatible with general principles of international law which do not require prior consent of another State for the use of a shared resource. 21 In November 2014, the European eel was added to Appendix II of the Convention on 12 Migratory Species.22 As a result, range states that are party to this treaty are under an

14

Cf. Art. 31 (3)(c) Vienna Convention on the Law of Treaties. Statute of the River Uruguay, 26 February 1975, UNTS, 1295, 339. 16 ICJ, Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010, ICJ Reports (2010), 14, para 175. 17 Ellen Hey, The Regime for the Exploitation of Transboundary Marine Fisheries Resources (1989), 67–68. 18 Nordquist/Nandan/Rosenne (note 4), 685. For further information on the concept of good faith within UNCLOS, see O’Brien on Art. 300 MN. 19 Nordquist/Nandan/Rosenne (note 4), 685. 20 See also Tanaka (note 8), 234: ‘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.’ 21 See e. g. Lac Lanoux Arbitration (France v. Spain), Award of 16 November 1957, ILR 24, 101, 130. 22 See CMS, Report of the 11th Meeting of the Conference of the Parties to the Convention on Migratory Species of Wild Animals (4–9 November 2014), UN Doc. UNEP/CMS/COP11/REPORT, paras 549–550. 15

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1–2

Part V. Exclusive economic zone

obligation to ‘endeavour to conclude’ agreements for the conservation of the species 23, with a view to restoring the species to a favourable conservation status. 24 Such negotiations may lead to the adoption of an international treaty or memorandum of understanding, which could facilitate cooperation between the range states of the European eel, allowing them to fulfill their obligations under Article 67(3) of the United Nations Convention on the Law of the Sea.

Article 68 Sedentary species This Part does not apply to sedentary species as defined in article 77, paragraph 4. Bibliography: Anthony Aust, Handbook of International Law (2005); Issam Azzam, The Dispute between France and Brazil over Lobster Fishing in the Atlantic, ICLQ 13 (1964), 1453–1459; Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd ed. 1997); Chie Kojima, Fisheries, Sedentary, MPEPIL, available at: http://www.mpepil.com; Shigeru Oda, The Geneva Conventions on the Law of the Sea: Some Suggestions for Their Revision, Natural Resources Lawyer 1 (1968), 103–113; Richard Young, Sedentary Fisheries and the Convention on the Continental Shelf, AJIL 55 (1961), 359–373; Shirley V. Scott, The Inclusion of Sedentary Fisheries within the Continental Shelf Doctrine (1992) ICLQ 41, 788–807 Documents: ILC, Report on the Regime of the High Seas the Territorial Sea by Mr. J. P. A Francois, Special Rapporteur, UN Doc. A/CN.4/97 (1956), reproduced in: ILC Yearbook (1956), vol. II, 1–12; ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4–12; ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45; ILC, Report of the International Law Commission, UN Doc. A/2456 (1953), GAOR 8th Sess. Suppl. 9 Cases: PCA, The Chagos Marine Protected Area Arbitration (Mauritius/United Kingdom of Great Britain and Northern Ireland), Award of 18 March 2015, available at: http://www.pca-cpa.org/showpage.asp?pag_id=1429; PCA, South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China), Award of 12 July 2016, available at: https://www.pcacases.com/web/view/7 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Sedentary Species . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Rights and Obligations of the Coastal State in Relation to Sedentary Species. . .

1 2 5 5 6

I. Purpose and Function 1

This short provision excludes sedentary species from the regime established by Part V of the Convention. It does not follow that coastal States do not have jurisdiction over sedentary species; rather it means that the legal basis for the exercise of sovereign rights over sedentary species is not the exclusive economic zone (EEZ) regime in Part V, rather the continental shelf regime in Part VII of the Convention. Art. 77 confirms that coastal States have exclusive rights to all natural resources on the continental shelf. The different legal basis has certain implications for the scope of rights and obligations possessed by the coastal State, as explained below.

II. Historical Background 2

The continental shelf regime developed prior to the regime for the EEZ. The first significant claim to a continental shelf was made by the United States in the now famous 23 24

540

Art. 4(3) Convention on Migratory Species. Art. 5(1) Convention on Migratory Species.

Harrison

Sedentary species

3–5

Art. 68

Truman Proclamation1. Although the Proclamation was focused on petroleum and other mineral resources, it covered all categories of natural resources, including living resources. The inclusion of living and non-living resources in the regime for the continental shelf was 3 also supported by the work of the International Law Commission (ILC) in preparing its Draft Articles concerning the Law of the Sea.2 Despite several proposals to limit the scope of the draft articles on the continental shelf to mineral resources, the final draft articles refer to ‘natural resources’ and the commentary makes clear that the provision covers living and non-living resources of the seabed.3 Early drafts of the relevant provisions prepared by the ILC referred to resources which were ‘permanently attached to the bed of the sea’. 4 This language was dropped at a later stage. The discussion about whether it was appropriate to include living resources in the regime 4 for the continental shelf continued at UNCLOS I.5 Ultimately the position of the ILC was confirmed and a clause was added to the 1958 Convention on the Continental Shelf which explicitly provided that ‘[t]he natural resources referred to in these articles consist of the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species, that is to say, 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.’ 6

It is this wording which is today reproduced in UNCLOS and which is incorporated by reference into Art. 68.

III. Elements 1. Sedentary Species An important question is what is meant by the term sedentary species. Whilst a definition 5 of this term is found in Art. 77 (4), it is still ambiguous. There is general agreement that sedentary species include chanks, clams, oysters, mussels scallops, sponges, and corals. 7 It is also clear that the concept does not include so-called bottom fish which, although living in the sea, occasionally have their habitat at the bottom of the sea or breed there. 8 At the same time, there are some species over which there is no agreement on whether they fall within the definition of sedentary species. As noted by one commentator, ‘the conclusion is inescapable that in nature there is no simple line of demarcation between sedentary and other fish, but only a long series of gradations from the unquestionably fixed at one extreme to the unquestionably free at the other’.9 In particular, it is not clear whether certain species of crustaceans fall within this category. Thus, as recounted by C HURCHILL and LOWE: 1 Presidential Proclamation No. 2667 concerning the Policy of the United States with respect to the natural Resources of the Subsoil and the Sea Bed of the Continental Shelf, 28 September 1945, Department of the State Bulletin 13 (1945), 485. 2 ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4. 3 Ibid., 11 (Art. 68); ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12, 45 (Art. 68). 4 ILC, Report of the International Law Commission, UN Doc. A/2456 (1953), GAOR 8th Sess. Suppl. 9, 12. 5 See Shigeru Oda, The Geneva Conventions on the Law of the Sea: Some Suggestions for their Reform, Natural Resources Lawyers 1 (1968) 103, 104. 6 Art. 2 (4) Convention on the Continental Shelf. For a history, see Richard Young, Sedentary Fisheries and the Convention on the Continental Shelf, AJIL 55 (1961), 359, 366–367. 7 See Chie Kojima, Fisheries, Sedentary, MPEPIL, para. 2, available at: http://www.mpepil.com. The inclusion of coral within the concept of sedentary species was expressly confirmed in PCA, The Chagos Marine Protected Area Arbitration (Mauritius/United Kingdom of Great Britain and Northern Ireland), Award of 18 March 2015, para. 304, available at: http://www.pca-cpa.org/showpage.asp?pag_id=1429. 8 ILC Law of the Sea Articles with Commentaries (note 3), 45 (Art. 68). 9 Young (note 6), 365, giving an interesting list of examples, including the be ˆche de mer and the gold-lip pearl oyster.

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‘it was […] controversial whether crabs and lobsters fell within the definition of sedentary species; and this controversy gave rise to several disputes, such as the USA-Japan dispute over the king crab fishery in the eastern Behring Sea and the Franco-Brazilian dispute over the lobster fishery off the Brazilian coast’.10

The fact that coastal States now have the right to exploit all fisheries within 200 nautical miles (� 56 (1)(a)) means that the controversy is less significant than in the past. Nevertheless, the scope of sedentary species is still an important issue as it defines the particular rights and obligations of the coastal State.

2. Rights and Obligations of the Coastal State in Relation to Sedentary Species 6

The effect of this provision is to exclude sedentary species from the EEZ regime. There are two principal consequences of this exclusion. Firstly, it is clear that the coastal State is not obliged to allow other States to fish for the surplus (� 62 (2)) of sedentary species. Yet, it can be asked whether or not other States may have acquired rights to such fisheries in other ways, for example through historic fishing activities. In the view of the ILC, ‘the coastal State must respect, in this (sic.) connexion, the existing right of other States.’ 11 Indeed, the ILC suggested that ‘it might be desirable to insert a provision to that effect in the articles themselves.’12 However, no such provision is found in either the Convention on the Continental Shelf or UNCLOS. This raises doubts about whether or not the rights of such States are protected.13 Indeed, Art. 77 (2) of the Convention says 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.’ This would seem to suggest that the rights of coastal States are indeed exclusive and any historic rights have been extinguished. There is also some support for this position in State practice 14 and it would also appear to have been confirmed in the South China Sea Arbitration, where the Tribunal held that ‘the text of the Convention […] comprehensively addresses the rights of other States within the areas of the exclusive economic zone and continental shelf and leaves no space for an assertion of historic rights.’15

7

Secondly, the exclusion seems to suggest that coastal States are not under an express duty to conserve and manage the natural resources of the continental shelf in the same way that they are in relation to other living resources in the EEZ. Art. 77 (1) simply provides that ‘the coastal State exercises over the continental shelf sovereign rights for the purposes of exploring it and exploiting its natural resources.’ It does not follow, however, that the coastal State has no duty to take measures to conserve the natural resources of the continental shelf.16 Although there is no such duty in Part VII of the Convention, there are a number of arguments which support the view that coastal States are under a duty to conserve sedentary fisheries. Thus, KOJIMA highlights that ‘[Art. 193] explicitly states that States have the sovereign right to exploit their natural resources pursuant to their environmental policies 10 Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd ed. 1997), 151–152; see also Issam Azzam, The Dispute between France and Brazil over Lobster Fishing in the Atlantic, ICLQ 13 (1964), 1453. 11 ILC, Report on the Regime of the High Seas the Territorial Sea by Mr J. P. A Francois, Special Rapporteur, UN Doc. A/CN.4/97 (1956), reproduced n: ILC Yearbook 1956, vol. II, 1, 7. 12 Ibid. 13 Young (note 6), 371. 14 See e. g. the discussion of Australian practice by Scott whereby Australia asserted exclusive jurisdiction over pearl fishing on its continental shelf despite long-standing fishing activities which had been carried out by Japanese fishermen in this area: Shirley V. Scott, The Inclusion of Sedentary Fisheries within the Continental Shelf Doctrine (1992) ICLQ 41, 788–807. 15 PCA, South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China), Award of 12 July 2016, available at: https://www.pcacases.com/web/view/7. 16 Cf. Anthony Aust, Handbook of International Law (2005), 299.

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Right of land-locked States

and in accordance with their duty to protect and preserve the marine environment.’ 17 Indeed, this provision would appear to reflect a general principle of international law which is also found in other international instruments. For instance, contracting parties to the Convention on Biological Diversity are under a legal obligation to promote the conservation and sustainable use of biological resources.18 This duty applies to all biological resources within the limits of its national jurisdiction19 which clearly includes the continental shelf.

Article 69 Right of land-locked States 1. 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 exclusive economic zones of coastal States of the same subregion or region, taking into account the relevant economic and geographical circumstances of all the States concerned and in conformity with the provisions of this article and of articles 61 and 62. 2. The terms and modalities of such participation shall be established by the States concerned through bilateral, subregional or regional agreements taking into account, inter alia: (a) the need to avoid effects detrimental to fishing communities or fishing industries of the coastal State; (b) the extent to which the land-locked State, in accordance with the provisions of this article, is participating or is entitled to participate under existing bilateral, subregional or regional agreements in the exploitation of living resources of the exclusive economic zones of other coastal States; (c) the extent to which other land-locked States and geographically disadvantaged States are participating in the exploitation of the living resources of the exclusive economic zone of the coastal State and the consequent need to avoid a particular burden for any single coastal State or a part of it; (d) the nutritional needs of the populations of the respective States. 3. When the harvesting capacity of a coastal State approaches a point which would enable it to harvest the entire allowable catch of the living resources in its exclusive economic zone, the coastal State and other States concerned shall cooperate in the establishment of equitable arrangements on a bilateral, subregional or regional basis to allow for participation of developing land-locked States of the same subregion or region in the exploitation of the living resources of the exclusive economic zones of coastal States of the subregion or region, as may be appropriate in the circumstances and on terms satisfactory to all parties. In the implementation of this provision the factors mentioned in paragraph 2 shall also be taken into account. 4. Developed land-locked States shall, under the provisions of this article, be entitled to participate in the exploitation of living resources only in the exclusive economic zones of developed coastal States of the same subregion or region having regard to the extent to which the coastal State, in giving access to other States to the living resources of its exclusive economic zone, has taken into account the need to minimize detrimental effects on fishing communities and economic dislocation in States whose nationals have habitually fished in the zone.

17 Kojima (note 7), para. 18. Article 192 might also be relevant in this context; see South China Sea Arbitration (note 15), para. 956. 18 Art. 10 Convention on Biological Diversity (CBD). 19 Art. 4 CBD.

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5. The above provisions are without prejudice to arrangements agreed upon in subregions or regions where the coastal States may grant to land-locked States of the same subregion or region equal or preferential rights for the exploitation of the living resources in the exclusive economic zones. Bibliography: David J. Attard, The Exclusive Economic Zone in International Law (1987); Susan Ferguson, UNCLOS III: Last Chance for Landlocked States?, San DiegoLRev 14 (1977) 637–655; Shunmugam Jayakumar, The Issue of the Rights of Landlocked and Geographically Disadvantaged States in the Living Resources of the ~a, The Exclusive Economic Zone: Regime and Legal Economic Zone, VJIL 18 (1977), 69–120; Francisco O. Vicun Nature under International Law (1989); Mpazi A. Sinjela, Land-Locked States and the UNCLOS Regime (1983); Surya P. Subedi, The Marine Fishery Rights of Land-locked States with Particular Reference to the EEZ, IJECL 2 (1987), 227–239; Stephen C. Vascianne, Land-Locked and Geographically Disadvantaged States in the International Law of the Sea (1990) Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘Land-locked States’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘right to participate, on an equitable basis, in the exploitation of an appropriate part of the surplus’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘of the exclusive economic zones of coastal States of the same subregion or region’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. ‘the coastal State and other States concerned shall co-operate in the establishment of equitable arrangements’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. ‘Developed land-locked States’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. ‘arrangements agreed upon in subregions or regions’ . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 7 7 8 10 11 13 15

I. Purpose and Function 1

Art. 69 serves to clarify the extent of the rights of land-locked States (LLS) (� Art. 124 (1)(a)) in relation to accessing the marine living resources of another State. It provides details as to the manner in which a coastal State should have ‘particular regard’ to the rights of LLS when allocating the surplus under Art. 62. It also confers additional rights on LLS even when there is no surplus. Art. 69 must be read alongside Arts. 71 and 72 which set out the limitations of the rights granted.

II. Historical Background Although they have no direct access to the sea, LLS have always had a right to use the high seas on an equal basis with all other States.1 Art. 2 of the 1958 Convention on the High Seas (High Seas Convention) provided that the high seas were ‘open to all nations’2 and Art. 3 of the same treaty went on to say that ‘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’. The High Seas Convention thus established a duty for coastal States and LLS to negotiate on terms of access to the oceans.3 3 This principle was not itself challenged at UNCLOS III and the Convention ultimately confirmed that ‘the high seas are open to all States, whether coastal or land-locked’. 4 At the 2

1 For a more detailed treatment of the history of LLS and their rights regarding access to and use of the oceans, see Uprety/Maggio on Art. 125 MN 3–30. 2 Art. 2 High Seas Convention. Art. 4 of that Convention similarly provided that ‘every state, whether coastal or not, has the right to sail ships under its flag on the high seas’. 3 Art. 3 (2) High Seas Convention. 4 Art. 87 (1).

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4–6

Art. 69

same time, the area of the oceans which falls under the high seas regime was dramatically reduced by virtue of the agreement upon the establishment of the exclusive economic zone (EEZ). As noted in an Explanatory Memorandum submitted by the Group of Land-Locked and Geographically Disadvantaged States (LLGDS) to the 1978 session of UNCLOS III, ‘the [EEZ] claims of the coastal states would exclude the LLGDS from the greatest part of easier accessible maritime resources the exploration of which, under the legal regime existing so far, has been open to all States’.5 Thus, the LLS argued that they should also have some rights to access the resources in the EEZ. Their arguments could be based on claims of ‘equity, fairness and justice’ and the need to avoid ‘economic inequalities among various States in the same region or subregion’.6 Whilst there was some sympathy with the view that the extension of coastal State 4 jurisdiction should not be detrimental to LLS, the precise rights to be accorded to LLS was hotly contested at UNCLOS III.7 LLS acted as a group at the Conference along with States who declared themselves to be geographically disadvantaged (� Art. 70). The group consisted of 55 States, 29 of which were land-locked. 8 The establishment of the group was significant as it gave these States much more power than they would have been able to wield individually. In particular, the group took an active role in the negotiations on resources in the EEZ, arguing that LLGDS should have ‘equal and non-discriminatory access’.9 Other early proposals also talked about ‘equitable and non-discriminatory access’. 10 Some proposals (e. g. that of Bolivia and Paraguay) even suggested regional economic zones in which all States in each region would enjoy equal rights of exploitation.11 However, this was opposed by many coastal States who argued that it was incompatible with the idea of sovereign rights in the EEZ (� Art. 56 (1)(a)). The issue of LLGDS rights in the EEZ proved to be one of the most intractable issues at 5 UNCLOS III. When little progress was made through the formal negotiations, attempts were made to forge a compromise through informal consultations. The Nandan Group or Group of 21 was formed at the fifth session of the Conference in 1976 to address this topic. The group was chaired by SATYA NANDAN of Fiji and its membership was composed of 10 of the more moderate members of the LLGDS and 10 of the more moderate coastal States. 12 However, the group was unable to produce a compromise text that was acceptable to all sides. By the beginning of the 1978 session, major progress had been made on many issues on 6 the agenda of the Conference, but substantial differences remained in relation to seven ‘hardcore unresolved issues’, including the treatment of LLGDS. These issues were allocated to smaller negotiating groups. Negotiating Group 4 dealt with, inter alia, the rights of LLGDS. This time, the negotiators were successful in producing a compromise text 13 which, subject to 5 UNCLOS III, Group of Land-locked and Geographically Disadvantaged States: Explanatory Memorandum on the Rights of the LLGDS in the Economic Zone (1978, mimeo.), reproduced in: Renate Platzo¨ der (ed.), The Third United Nations Conference on the Law of the Sea: Documents, vol. IV (1982), 497. 6 Mpazi A. Sinjela, Land-Locked States and the UNCLOS Regime (1983), 283. 7 See generally Susan Ferguson, UNCLOS III: Last Chance for Landlocked States?, San DiegoLRev 14 (1977), 37–655; Shunmugam Jayakumar, The Issue of the Rights of Landlocked and Geographically Disadvantaged States in the Living Resources of the Economic Zone, VJIL 18 (1977), 69–120. 8 See Myron H. Nordquist (ed.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. I (1985), 72. 9 See Second Committee UNCLOS III, Afghanistan et al.: Draft Articles on Participation of Land-locked and Other Geographically Disadvantaged States in the Exploration and Exploitation of the Living and Non-living Resources in the Area beyond the Territorial Sea, UN Doc. A/CONF.62/C.2/L.39 (1974), OR III, 216. 10 See also the draft articles submitted by 17 African States, Second Committee UNCLOS III, Gambia et al.: Draft Articles on the Exclusive Economic Zone, UN Doc. A/CONF.62/C.2/L.82 (1974), OR III, 240. 11 Second Committee UNCLOS III, Bolivia and Paraguay: Draft Articles on the ‘Regional Economic Zone’ of Transit States, UN Doc. A/CONF.62/C.2/L.65 (1974), OR III, 234. 12 Nordquist (note 8), 109. 13 UNCLOS III, Explanatory Memorandum of the Proposals by the Chairman of Negotiating Group 4, UN Doc. A/CONF.62/RCNG/1 (1978), OR X, 88.

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Part V. Exclusive economic zone

some minor modifications, was incorporated into the Informal Composite Negotiating Text.14 Despite the existence of continuing objections from States on both sides of the argument, it is this version of the text, imperfect as it was, which found its way into the final text of the Convention.15

III. Elements 1. ‘Land-locked States’ 7

A LLS is defined in the Convention as ‘a State which has no sea-coast’.16 Unlike the term ‘geographically disadvantaged State’ discussed in Art. 70, this is an objective definition which can only be met based upon geographical fact. Accordingly, there are 44 LLS in the world, including two double land-locked countries (Liechtenstein and Uzbekistan), which will benefit from the rights in Art. 69.17

2. ‘right to participate, on an equitable basis, in the exploitation of an appropriate part of the surplus’ Art. 69 relates to the allocation of a surplus of the allowable catch which cannot be harvested by the coastal State itself. It must therefore be read in light of Art. 62 which sets out the duty of the coastal State to calculate the surplus. 9 Pursuant to Art. 69 (1), LLS have the ‘right to participate, on an equitable basis, in the exploitation of an appropriate part of the surplus’. This is clearly not an absolute right, and the coastal State would appear to have a broad discretion not only to decide on when it is equitable for a LLS to participate in harvesting the surplus of the allowable catch, but also what is an appropriate part of the surplus to be allocated to a LLS. Whereas Art. 62 says that the coastal State shall have ‘particular regard’ to the provisions of Art. 69 in deciding on allocating any surplus, this would not appear to give any absolute preference to the rights of LLS over and above other categories of States. 18 UNCLOS therefore falls a long way short of the equal access to resources that had been demanded by the LLGDS Group at the beginning of the negotiations. Nevertheless, Art. 69 (5) makes clear that the coastal State may grant more favourable access to LLS than is required to under the Convention. This provision stresses the discretion of the coastal State in these matters. 8

3. ‘of the exclusive economic zones of coastal States of the same subregion or region’ 10

One question that arises in relation to Art. 69 is to which EEZs does a LLS have a right of access. The Convention refers access to the resources of ‘coastal States of the same subregion or region’. There is no fixed definition of subregion or region in the Convention, and therefore the provision allows some flexibility in determining to which resources a LLS may seek access. Certainly, the provision applies to neighbouring States but it would also seem to go beyond that to include States within a broader geographical area. An additional restriction applies to developed LLS which shall be entitled to participate in the exploitation of living resources only in the EEZ of other developed States in the same region or subregion. 19 14 UNCLOS III, Informal Composite Negotiating Text, UN Doc. A/CONF.62/WP.10 (1977), OR VIII, 16 (Article 69). 15 See Nordquist (note 8), 727–730. 16 Art. 124 (1)(a). 17 For details, see Uprety/Maggio on Art. 124 MN 2(footnote 2). ~a, The Exclusive Economic Zone: Regime and Legal Nature under International Law 18 Francisco O. Vicun (1989), 57; see Stephen C. Vascianne, Land-Locked and Geographically Disadvantaged States in the International Law of the Sea (1990) 53; cf. also Harrison/Morgera on Art. 62 MN 13. 19 See infra, MN 15.

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Art. 69

4. ‘the coastal State and other States concerned shall co-operate in the establishment of equitable arrangements’ Unlike other States mentioned in Art. 62, the rights of LLS do not only apply when there 11 is a surplus of the allowable catch. Rather, ‘this provision weighs heavily in favour of the disadvantaged States and puts them on a better footing then those States claiming access under Article 62 (2).’20 Thus, Art. 69 (3) grants additional rights of participation to LLS. The key part of this provision is the duty to ‘cooperate in the establishment of equitable arrangements’. What is equitable will clearly depend on the circumstances of a particular case. Ultimately, the establishment of such equitable arrangements would appear to require ~A, ‘this apparent restriction in reality the consent of the coastal State. As noted by VICUN results in an increased control that the coastal State can exercise by means of the negotiation of the terms and conditions applicable to access.’21 Moreover, it should also be noted that there is an exception in Art. 71 which excludes completely the application of Art. 69 ‘in the case of a coastal State whose economy is overwhelmingly dependent on the exploitation of the living resources of the exclusive economic zone’. This provision also falls far short of the hopes expressed by LLGDS at UNCLOS III and 12 Art. 69 has been criticized as being at best ‘too general’22, and worse as ‘vague, elastic and windy’.23 As noted by VASCIANNE, the LLGDS simply did not have the bargaining power to force through their proposals as coastal States were in the superior bargaining position, being able to implement unilateral measures in the absence of agreement at the Conference. 24 This perhaps explains why the LLGDS consented to a weaker formulation of their rights than they wanted. Even those rights that they do have in Art. 69 rely upon implementation in good faith (� Art. 300) by coastal States. In this respect there is little evidence of State practice implementing Art. 69.25

5. ‘Developed land-locked States’ The benefits of Art. 69 are primarily directed at developing LLS and Art. 69 (4) contains a 13 restriction which applies to developed LLS. Accordingly, developed LLS may only participate in the exploitation of living resources in the EEZ of another developed State. Moreover, such participation may only occur ‘taking into account the need to minimize detrimental effects on the fishing communities and economic dislocation in States whose nationals have habitually fished in the area’. In other words, there is an express direction to take into account the interests of local and traditional fishing communities before allocating new rights to fishing operations based in developed land-locked countries. In this regard, both Spain and Malta expressed their understanding that ‘access to fishing in the exclusive economic zone of third States by vessels of developed land-locked and geographically disadvantaged States is dependent upon the prior granting of access by the coastal States in question to the nationals of other States which have habitually fished in the said zone.’26 20

David J.Attard, The Exclusive Economic Zone in International Law (1987), 200–201. ~a (note 18), 56. Vicun 22 Attard (note 20), 201. 23 Surya P. Subedi, The Marine Fishery Rights of Land-locked States with Particular Reference to the EEZ, IJECL 2 (1987), 234. 24 Vascianne (note 18), 19. 25 Writing at the time of the entry into force of the Convention, the UN Division on Ocean Affairs and the Law of the Sea stated that ‘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’: UN DOALOS, The Law of the Sea: Practice of States at the Time of the Entry into Force of the United Nations Convention on the Law of the Sea (1994), 31. 26 Declaration of Malta of 20 May 1993 and the Declaration of Spain of 15 January 1997, available at: http:// treaties.un.org/Pages/ViewDetailsIII.aspx?&src=TREATY&mtdsg_no=XXI~6&chapter=21&Temp=mtdsg3&lang=en. 21

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Part V. Exclusive economic zone

14

Art. 69 (4) underlines the objective of Art. 69 as more of a means to address economic inequalities, rather than geographical inequalities per se. This restriction is largely intended to apply to the European LLS who ‘are in an analytically distinct class from developing landlocked countries which have yet to overcome basic problems of transit’. 27 Nevertheless, there is no specific definition of ‘developed’ LLS and the term is capable of being interpreted in an evolutionary manner so that LLS which were developing at the time that the Convention was concluded may become developed LLS in the future.

15

The majority of provisions in Art. 69 assume that a LLS will negotiate access to the living resources of another coastal State on a bilateral basis. Art. 69 (5), however, permits the formation of plurilateral arrangements within a subregion or region whereby ‘the coastal States may grant to land-locked States of the same subregion or region equal or preferential rights for the exploitation of the living resources in the exclusive economic zone’. This provision echoes earlier proposals by several States, including Bolivia and Paraguay, who supported the introduction of so-called ‘regional economic zones’ to be jointly established by groups of coastal States and their neighbouring States.28 Art. 69 (5) confirms that coastal States may fulfill their obligations through a regional arrangement and some authors have suggested that this may be one of the best ways to make the most of the rights of LLGDS under the Convention.29 At the same time, it is clear that this is only an option and no coastal State is under an obligation to enter into such an arrangement without its agreement.

6. ‘arrangements agreed upon in subregions or regions’

Article 70 Right of geographically disadvantaged States 1. 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 exclusive economic zones of coastal States of the same subregion or region, taking into account the relevant economic and geographical circumstances of all the States concerned and in conformity with the provisions of this article and of articles 61 and 62. 2. For the purposes of this Part, “geographically disadvantaged States” means 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 fish for the nutritional purposes of their populations or parts thereof, and coastal States which can claim no exclusive economic zones of their own. 3. The terms and modalities of such participation shall be established by the States concerned through bilateral, subregional or regional agreements taking into account, inter alia: (a) the need to avoid effects detrimental to fishing communities or fishing industries of the coastal State; (b) the extent to which the geographically disadvantaged State, in accordance with the provisions of this article, is participating or is entitled to participate under existing bilateral, subregional or regional agreements in the exploitation of living resources of the exclusive economic zones of other coastal States;

27

Vascianne (note 18), 6. Bolivia and Paraguay: Draft Articles (note 11). It should be noted that the proposal extended beyond fisheries to mineral resources and marine scientific research. 29 Subedi (note 23), 238–239. 28

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Right of geographically disadvantaged States

70

(c) the extent to which other geographically disadvantaged States and land-locked States are participating in the exploitation of the living resources of the exclusive economic zone of the coastal State and the consequent need to avoid a particular burden for any single coastal State or a part of it; (d) the nutritional needs of the populations of the respective States. 4. When the harvesting capacity of a coastal State approaches a point which would enable it to harvest the entire allowable catch of the living resources in its exclusive economic zone, the coastal State and other States concerned shall cooperate in the establishment of equitable arrangements on a bilateral, subregional or regional basis to allow for participation of developing geographically disadvantaged States of the same subregion or region in the exploitation of the living resources of the exclusive economic zones of coastal States of the subregion or region, as may be appropriate in the circumstances and on terms satisfactory to all parties. In the implementation of this provision the factors mentioned in paragraph 3 shall also be taken into account. 5. Developed geographically disadvantaged States shall, under the provisions of this article, be entitled to participate in the exploitation of living resources only in the exclusive economic zones of developed coastal States of the same subregion or region having regard to the extent to which the coastal State, in giving access to other States to the living resources of its exclusive economic zone, has taken into account the need to minimize detrimental effects on fishing communities and economic dislocation in States whose nationals have habitually fished in the zone. 6. The above provisions are without prejudice to arrangements agreed upon in subregions or regions where the coastal States may grant to geographically disadvantaged States of the same subregion or region equal or preferential rights for the exploitation of the living resources in the exclusive economic zones. Bibliography: Lewis M. Alexander, The ‘Disadvantaged States’ and the Law of the Sea, Marine Policy 5 (1981), 185–193; Lucius Caflisch, What is a Geographically Disadvantaged State?, ODIL 18 (1987), 641–663; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Jean-Francois Pulvenis, La Notion de l’e´tat geographiquement de´savantage´ et le nouveau droit de la mer, AFDI 22 (1976), 678–719; Stephen C. Vascianne, Land-Locked and Geographically Disadvantaged States in the International Law of the Sea (1990) Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘Geographically disadvantaged States’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘right to participate, on an equitable basis, in the exploitation of an appropriate part of the surplus’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘When the harvesting capacity of a coastal State approaches a point which would enable it to harvest the entire allowable catch’. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. ‘only in the exclusive economic zones of developed coastal States of the same subregion or region’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. ‘without prejudice to arrangements’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 3 3 5 6 7 8

I. Purpose and Function Although some coastal States will inherently have less access to marine resources than 1 others, Art. 70 serves to compensate for some of the disadvantages that arise from the geographical position of certain States. Thus, Art. 70 provides details as to the manner in which a coastal State should have ‘particular regard’ to the rights of geographically disadvantaged States when allocating the surplus of its allowable catch under Art. 62, as well as defining the extent of rights pertaining to geographically disadvantaged States if Harrison

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Art. 70

2–4

Part V. Exclusive economic zone

there is no surplus. Art. 70 must be read in conjunction with Arts. 71 and 72 which impose limitations on the exercise of the rights under Art. 70.

II. Historical Background 2

The demands of geographically disadvantaged States at UNCLOS III were very similar to the demands of land-locked States (LLS); due to the geographical disadvantages imposed on them by nature, resulting in restricted access to the sea, they argued that the legal regime should provide compensation by granting them equitable access to marine resources which would otherwise fall under the jurisdiction of other coastal States. As a result, the drafting history of Art. 70 largely mirrors that of Art. 69.1 At the seventh session of the Conference in 1978, the issue of access to resources for geographically disadvantaged States was submitted to a special negotiating group under the chairmanship of SATYA NANDAN of Fiji.2 Following these negotiations, the Chair of the negotiating group presented a compromise position which referred to the rights of ‘States with special geographical characteristics’. 3 This compromise was subsequently incorporated into the Informal Composite Negotiating Text. 4 At the very final session of the Conference in 1982, it was agreed, partly at the request of the Drafting Committee, to amend the text to refer to ‘geographically disadvantaged States’ instead of ‘States with special characteristics’, although proposals to broaden the definition of these States were resisted. No changes to the substantive rights of geographically disadvantaged States introduced at this stage.5

III. Elements 1. ‘Geographically disadvantaged States’ Geographically disadvantaged States6 are defined for the purposes of Part V 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 fish for the nutritional purposes of their populations or parts thereof, and coastal States which can claim no exclusive economic zones of their own.’7 It follows that there are two distinct categories of geographically disadvantaged States. 4 Firstly, there are those countries without an exclusive economic zone (EEZ) of their own. This is a discrete and clearly identifiable category. Secondly, there are those countries whose geographical situation makes them dependent upon the exploitation of the living resources of the EEZ of other States in the subregion or region for adequate supplies of fish for the nutritional purposes of their populations or parts thereof. This is a less clearly defined category of States. VASCIANNE argues that the reference to the inability of States to satisfy the nutritional requirements of their populations is too vague and therefore he suggests that 3

1

Cf. Harrison on Art. 69 MN 2 et seq. See Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 761. 3 UNCLOS III, Explanatory Memorandum of the Proposals by the Chairman of Negotiating Group 4, UN Doc. A/CONF.62/RCNG/1 (1978), OR X, 88. 4 UNCLOS III, Informal Composite Negotiating Text, UN Doc. A/CONF.62/WP.10 (1977), OR VIII, 16 (Article 70). 5 See generally, Nordquist/Nandan/Rosenne (note 2), 763–765. 6 See generally, Lucius Caflisch, What Is a Geographically Disadvantaged State?, ODIL 18 (1987), 641–663; Jean-Francois Pulvenis, La notion de l’e´tat geographiquement de´savantage´ et le nouveau droit de la mer, AFDI 22 (1976), 678–719. 7 Art. 70 (2). On geographically disadvantaged States, also see Winkelmann on Art. 122 MN 14 et seq. 2

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Right of geographically disadvantaged States

5–6

Art. 70

‘this category must be confined to States which, because of their limited resource potential of their coastal waters, established a pattern of fishing off the coasts of neighbouring States prior to the emergence of the EEZ as a legal concept.’8

Whilst this interpretation has the advantage of limiting the number of States which fall within the category, it has the effect of closing the category at the time at which the Convention was concluded. Thus, it would prevent any States which may become geographically disadvantaged in the future from claiming this status. Moreover, it conflates geographically disadvantaged States with States which have habitually fished in the zone, despite the fact that these are treated as two separate categories in Art. 62. It is not clear therefore that this interpretation is compatible with the ordinary meaning of the Convention, and it is likely that the issue must be decided on a case-by-case basis. In practice, many States have claimed the status of a geographically disadvantaged State in the declarations made under Art. 310 and the lack of opposition from other States Parties may be considered as evidence supporting these claims.9

2. ‘right to participate, on an equitable basis, in the exploitation of an appropriate part of the surplus’ The rights of geographically disadvantaged States under Art. 70 are almost identical to 5 those of LLS under Art. 69.10 Art. 70 (1) relates to the allocation of a surplus of the allowable catch which cannot be harvested by the coastal State itself. It must therefore be read in light of Art. 62 which sets out the duty of the coastal State to calculate the surplus. Art. 70 (1) refers to the ‘right to participate, on an equitable basis, in the exploitation of an appropriate part of the surplus’. In common with Art. 69, this provision clearly does not create an absolute right and it is up to the coastal State to decide upon access to its surplus. Indeed, the coastal State would appear to have a broad discretion not only to decide on when it is equitable for a geographically disadvantaged State to participate in harvesting the surplus of the allowable catch, but also what is an appropriate part of the surplus to be allocated to such a State. Several factors to be taken into account by the coastal State are listed in paragraph 3.

3. ‘When the harvesting capacity of a coastal State approaches a point which would enable it to harvest the entire allowable catch’ Art. 70 also addresses the situation where there is no surplus in the allowable catch. 6 According to paragraph 4, a coastal State must cooperate in the establishment of ‘equitable arrangements’ to allow for participation of developing geographically disadvantaged States of the same subregion or region in the exploitation of the living resources of its EEZ. This is the same language that is used in Art. 69 (3). What is equitable will clearly depend on the circumstances of a particular case, although some considerations are suggested in Art. 70 (3). Ultimately, the establishment of such equitable arrangements would appear to require the consent of the coastal State, and the provision therefore falls short of creating any absolute rights for geographically disadvantaged States.

8 Stephen C. Vascianne, Land-Locked and Geographically Disadvantaged States in the International Law of the Sea (1990), 11. 9 See e. g. the Declaration of Romania of 17 December 1996; the Declaration of the Republic of Moldova of 6 February 2007; the Declaration of the Federal Republic of Germany of 14 October 1994; the Declaration of Ukraine of 26 July 1999, available at: http://treaties.un.org/Pages/ViewDetailsIII.aspx?&src=TREATY&mtdsg_no=XXI~6&chapter=21&Temp=mtdsg3&lang=en. 10 For a perspective on the problems faced by geographically disadvantaged states, see Lewis M. Alexander, The ‘Disadvantaged States’ and the Law of the Sea, Marine Policy 5 (1981), 185–193.

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Art. 71

1

Part V. Exclusive economic zone

4. ‘only in the exclusive economic zones of developed coastal States of the same subregion or region’ 7

Art. 70 (5) limits the rights of developed geographically disadvantaged States so that they may only participate in the exploitation of the surplus of other developed coastal States in the same subregion or region. Moreover, developed geographically disadvantaged States only benefit from this provision if the coastal State has also had regard to ‘the need to minimize detrimental effects on fishing communities and economic dislocation in States whose nationals have habitually fished in the zone’. In other words, the interests of developed geographically disadvantaged States would not appear to take priority over the interests of distant water fishing nations or local fishing communities. The objective of this provision would seem to be the same as Art. 69 (4), which limits the rights of developed LLS in a similar manner.11 A problem with both provisions is that there is no objective definition of a developed State and therefore it is uncertain to which States this paragraph applies.

5. ‘without prejudice to arrangements’ 8

Art. 70 (6) mirrors Art. 69 (5) by allowing States to establish subregional and regional arrangements to implement the benefit-sharing provisions in the Convention. There would seem to be no reason why a subregional or regional arrangement entered into by coastal States could not encompass both LLS and geographically disadvantaged States, thereby serving to implement Arts. 69 and 70 of the Convention.

Article 71 Non-applicability of articles 69 and 70 The provisions of 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 exclusive economic zone. Bibliography: David J. Attard, The Exclusive Economic Zone in the Law of the Sea Convention (1987); Shunmugam Jayakumar, The Issue of the Rights of Landlocked and Geographically Disadvantaged States in the Living Resources of the Economic Zone, VJIL 18 (1977), 69–119; Stephen C. Vascianne, Land-Locked and Geographically Disadvantaged States in the International Law of the Sea (1990) Cases: ICJ, Fisheries Case (United Kingdom v. Norway), Judgment of 18 December 1951, ICJ Reports (1951), 116; ICJ, Fisheries Jurisdiction Case (Federal Republic of Germany v. Iceland), Merits, Judgment of 25 July 1974, ICJ Reports (1974), 175 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘articles 69 and 70 do not apply’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘in the case of a coastal State whose economy is overwhelmingly dependent on the exploitation’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 5 5 6

I. Purpose and Function 1

Art. 71 bars the application of Arts. 69 and 70 in the case of a coastal State whose economy is overwhelmingly dependent on the exploitation of living resources in the EEZ. 11

552

See also Harrison on Art. 69 MN 14.

Harrison

Non-applicability of articles 69 and 70

2–5

Art. 71

The exception permits such a State to exclude land-locked1 and geographically disadvantaged States (� 70 (2)) from accessing the living resources of its EEZ, whether or not there is a surplus of its allowable catch.

II. Historical Background Art. 71 draws upon a trend in international jurisprudence of taking into account the 2 dependence of a coastal State on its fisheries in determining fishing rights. For example, in the Fisheries Case, the International Court of Justice (ICJ) had noted that ‘the inhabitants of the [Norwegian] coastal zone derive their livelihood essentially from fishing’ and this was one of ‘the realities which must be borne in mind in appraising the validity of the United Kingdom contention that the limits of the Norwegian fisheries zone laid down in the 1935 Decree are contrary to international law’.2 Dependence on fishing was reflected even more clearly in the Fisheries Jurisdiction Case (Federal Republic of Germany vs. Iceland) where the ICJ held that ‘the established rights of other fishing States are in turn limited by reason of the coastal State’s special dependence on the fisheries and its own obligation to take account of the rights of other States, including the coastal State, and of the needs of conservation’.3 The idea of special dependence had been introduced by Iceland into the negotiations at 3 UNCLOS II where it had proposed that ‘where a people is overwhelmingly dependent upon its coastal fisheries for its livelihood or economic development and it becomes necessary to limit the total catch of a stock or stocks of fish in areas adjacent to the coastal fisheries zone, the coastal State shall have preferential rights under such limitations to the extent rendered necessary by its dependence on fisheries’. 4

Those negotiations failed to lead to any agreement and the fisheries issue continued to cause international friction until the opening of negotiations for a new convention on the law of the sea in 1973. The issue of special dependence of the coastal State was raised again at UNCLOS III in 4 discussions on access to the living resources of the EEZ.5 Art. 71 has its origins in the draft articles submitted by the Evensen Group to the 1975 session of the Conference which provided that the rights of access for land-locked and geographically disadvantaged States should ‘avoid effects which would be detrimental to the fishing communities of the coastal State or its fishing industry’.6 Further negotiations led to the inclusion of a separate provision completely excluding the application of Arts. 69 and 70 in the case of coastal States which are overwhelming dependent on the living resources of its EEZ.

III. Elements 1. ‘articles 69 and 70 do not apply’ The interest of the coastal State in its fisheries resources is already a factor that can be taken 5 into account in deciding on access to the surplus of its allowable catch under Art. 62. The effect 1

For further information, see Uprety/Maggio on Art. 124. ICJ, Fisheries Case (United Kingdom v. Norway), Judgment of 18 December 1951, ICJ Reports (1951), 116, 142. 3 ICJ, Fisheries Jurisdiction Case (Federal Republic of Germany v. Iceland), Merits, Judgment of 25 July 1974, ICJ Reports (1974), 175, para. 63. 4 UNCLOS II, Iceland: Proposal, UN Doc. A/CONF.19/C.1/L.7 (1960), OR I, 168. 5 See Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 769. 6 See UNCLOS III, The Economic Zone (1975, mimeo.), reproduced in: Renate Platzo ¨ der (ed.), The Third United Nations Conference on the Law of the Sea: Documents, vol. IV (1982), 215 (Art. 9). 2

Harrison

553

Art. 72

Part V. Exclusive economic zone

of Art. 71 is to go one step further and to completely exclude the rights of land-locked and geographically dependent States in the EEZ where coastal states are overwhelmingly dependent on fisheries. It excludes the rights of these States not only in relation to access to the surplus of the allowable catch, but also any rights that these States may have to equitable participation in exploiting the living resources of the EEZ (� Art. 69 (3); Art. 70 (4)).

2. ‘in the case of a coastal State whose economy is overwhelmingly dependent on the exploitation’ 6

The question that arises in relation to this provision is what is meant by ‘overwhelming dependence’. The ordinary meaning of the term is that the economy of the whole nation must be overwhelmingly dependent on fishing, not just the economy of a particular part of the State.7 It was suggested by JAYAKUMAR, writing during the negotiations, that this provision was intended to apply to Iceland.8 However, it is not drafted in a way which is restricted to any single State and it must remain an open category.9 At the same time, it is not entirely clear how to define ‘overwhelming dependence’, and some authors warn that some States could invoke Art. 71 as means of eroding the rights of land-locked and geographically disadvantaged States.10 Unfortunately, the interpretation of this provision would appear to fall within the exception to compulsory dispute settlement (� Art. 297 (3)) as it relates to the ‘sovereign rights with respect to the living resources in the exclusive economic zone’.

Article 72 Restrictions on transfer of rights 1. Rights provided under articles 69 and 70 to exploit living resources shall not be directly or indirectly transferred to third States or their nationals by lease or licence, by establishing joint ventures or in any other manner which has the effect of such transfer unless otherwise agreed by the States concerned. 2. The foregoing provision does not preclude the States concerned from obtaining technical or financial assistance from third States or international organizations in order to facilitate the exercise of the rights pursuant to articles 69 and 70, provided that it does not have the effect referred to in paragraph 1. Bibliography: David J. Attard, The Exclusive Economic Zone in the Law of the Sea Convention (1987); Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993) Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘Rights provided for under articles 69 and 70 […] shall not be […] transferred to third States’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘unless otherwise agreed by the States concerned’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘articles 69 and 70’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. ‘does not preclude the States concerned from obtaining technical assistance’ . . 7

1 2 3 3 4 5 6

Nordquist/Nandan/Rosenne (note 5), 772. Shunmugam Jayakumar, The Issue of the Rights of Landlocked and Geographically Disadvantaged States in the Living Resources of the Economic Zone, VJIL 18 (1977), 69, 91. 9 Stephen C. Vascianne, Land-Locked and Geographically Disadvantaged States in the International Law of the Sea (1990), 56. 10 See e. g. David J. Attard, The Exclusive Economic Zone in the Law of the Sea Convention (1987), 202; Vascianne (note 9), 57. 8

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Restrictions on transfer of rights

1–4

Art. 72

I. Purpose and Function The purpose of Art. 72 is to prevent the benefits of those rights conferred on land-locked 1 and geographically disadvantaged States under Arts. 69 and 70 of the Convention from being transferred to third States. It makes clear that these provisions are intended to directly benefit only the States which qualify for the rights under the terms of the Convention.

II. Historical Background Whilst there was broad agreement in the negotiations at UNCLOS III that there should be 2 restrictions on the transfer of rights of land-locked and geographically disadvantages States, the precise details of such restrictions were contested. 1 Opinions were split amongst the group of Land-Locked and Geographically Disadvantaged States (LLGDS) on the one hand and the coastal States on the other hand. In particular, the LLGDS strongly urged that joint ventures and other similar collaborations aimed at facilitating the exercise of rights by the fishing States should be permitted.2 However, the language that was ultimately adopted in the draft negotiating text and which survived with only minor changes in the final Convention was a compromise formula which appears to reject this view, without providing any particular certainty over the precise scope of the prohibition. 3

III. Elements 1. ‘Rights provided for under articles 69 and 70 […] shall not be […] transferred to third States’ The effect of Art. 72 is to prohibit the transfer of rights provided to LLGDS under Arts. 69 3 and 70 of the Convention to third States or their nationals. It prohibits both the direct transfer and the indirect transfer of such rights. It specifically mentions three types of transfer that would be prohibited, namely leases, licences and joint ventures. However, it also covers any other arrangement which ‘has the effect of such transfer’. Despite attempts by the LLGDS to introduce an amendment which would have permitted joint ventures provided they did not have the effect of transferring the rights concerned, it seems fairly clear from the text that all forms of joint ventures are prohibited, regardless of their effect.

2. ‘unless otherwise agreed by the States concerned’ Art. 72 (1) does not prohibit the transfer of relevant rights if there is the agreement of ‘the 4 States concerned’. Whilst earlier drafts of the negotiating text had referred to ‘the express consent of the coastal State’4, this wording was removed at the sixth session in 1976 and replaced by a reference to the agreement of ‘the States concerned’. 5 Although there is now no reference to the consent of the coastal State, it can be assumed that the coastal State is a ‘concerned State’ for the purposes of this provision, and it therefore must consent to any transfer of rights if they are to take place. 1 See generally Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 779. 2 See e. g. UNCLOS III, Singapore: Articles 45–60 (ISNT II) (1976, mimeo.), reproduced in: Renate Platzo ¨ der (ed.), The Third United Nations Conference on the Law of the Sea: Documents, vol. IV (1982), 290, 291. 3 See Nordquist/Nandan/Rosenne (note 1), 782. 4 Ibid., 779. 5 Ibid., 781.

Harrison

555

Art. 73

Part V. Exclusive economic zone

3. ‘articles 69 and 70’ 5

It is notable that this provision applies only to the rights of LLGDS provided for in Arts. 69 and 70 and ‘not to other States benefiting under the general-surplus rule found in Article 62’. 6 Yet, it does not follow that the rights of other States to fish for the surplus of the allowable catch in the EEZ are transferable. Given that access to the surplus is subject to terms and conditions specified by the coastal State, the coastal State may also expressly prohibit other States from transferring their rights if it so wishes.

4. ‘does not preclude the States concerned from obtaining technical assistance’ 6

Art. 72 (2) was introduced at the fourth session of the Conference on the basis of a proposal from Austria.7 It permits LLGDS to receive financial and technical assistance from third States or international organizations to assist them in exercising their rights, provided that such assistance does not involve a transfer of rights. Thus they might receive financial grants to support their fishing activities or they may employ experts to assist them in developing an efficient fishing fleet. For example, such support might be provided by the Food and Agriculture Organization of the United Nations (FAO) as part of its technical assistance programme.8

Article 73 Enforcement of laws and regulations of the coastal State 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. 2. Arrested vessels and their crews shall be promptly released upon the posting of reasonable bond or other security. 3. Coastal State penalties for violations of fisheries laws and regulations in the exclusive economic zone may not include imprisonment, in the absence of agreements to the contrary by the States concerned, or any other form of corporal punishment. 4. In cases of arrest or detention of foreign vessels the coastal State shall promptly notify the flag State, through appropriate channels, of the action taken and of any penalties subsequently imposed. Bibliography: David Anderson, Investigation, Detention and Release of Foreign Vessels under the UN Convention on the Law of the Sea of 1982 and Other International Agreements, 11 IJMCL (1996), 165–177; Erik Franckx, “Reasonable Bond” in the Practice of the International Tribunal for the Law of the Sea, 32 CWILJ (2001–2002), 303–342; James Harrison, Safeguards against Excessive Enforcement Measures in the Exclusive Economic Zone – Law and Practice, in: Henrik Ringbom (ed.), Jurisdiction over Ships: Post-UNCLOS Developments in the Law of the Sea (2015); Danie`le Mangatelle, Coastal State Requirements for Foreign Fishing, FAO Legislative Study No. 57 (1996); Bernard H. Oxman, The M/V ‘Saiga’ (Saint Vincent and the Grenadines v. Guinea). ITLOS Case No. 1, AJIL 92 (1998), 278–282 Documents: FAO, Code of Conduct for Responsible Fisheries (1995) Cases: ITLOS, The M/V ‘Saiga’ (No. 1) Case (Saint Vincent and the Grenadines v. Guinea), Judgment of 4 December 1997, ITLOS Reports (1997), 16; ITLOS, The M/V ‘Saiga’ (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment of 1 July 1999, ITLOS Reports (1999), 10; ITLOS, The ‘Monte Confurco’ Case 6 7 8

David J. Attard, The Exclusive Economic Zone in the Law of the Sea Convention (1987), 201. UNCLOS III, Austria: Article 59 (1976, mimeo.), reproduced in: Platzo¨ der (note 2), 315. See http://www.fao.org/fishery/topic/16065/en.

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Harrison

Enforcement of laws and regulations of the coastal State

1–3

Art. 73

(Seychelles v. France), Judgment of 18 December 2000, ITLOS Reports (2000), 86; ITLOS, The ‘Volga’ Case (Russian Federation v. Australia), Judgment of 23 December 2002, ITLOS Reports (2002), 10; ITLOS, The ‘Tomimaru’ Case (Japan v. Russian Federation), Judgment of 6 August 2007, ITLOS Reports (2005–2007), 74; ITLOS, The M/V ‘Virginia G’ Case (Panama v. Guinea-Bissau), Judgment of 14 April 2014 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘measures […] necessary to ensure compliance with the laws and regulation adopted’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘Arrested vessels and their crews shall be promptly released upon the posting of reasonable bond’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘Coastal State penalties […] may not include imprisonment […] [or] corporal punishment’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. ‘In cases of arrest or detention […] the coastal State shall promptly notify the flag State’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Compensation for Injurious Use of Enforcement Powers. . . . . . . . . . . . . . . . . . . . . . . .

1 3 4 4 12 16 19 22

I. Purpose and Function UNCLOS confers significant rights on coastal States to manage the living resources located 1 in its EEZ. This includes legislative jurisdiction to prescribe a total allowable catch (� Art. 61 (1)) and to set laws and regulations relating to the licensing and regulation of fishing activities (� Art. 62 (4)). Art. 73 confirms that the coastal State may also exercise enforcement jurisdiction in relation to such laws and regulations. This provision supplements Art. 62 (4)(k) which specifies that the coastal State has the right to establish enforcement procedures in relation to foreign fishing vessels to which it grants access to the surplus (� Art. 62 (2)) of its allowable catch. At the same time, the enforcement jurisdiction of coastal States in not unlimited. The 2 Convention imposes important limits on the exercise of the enforcement powers of coastal States. These safeguards are set out in Art. 73 (2)-(4). They seek to ensure that coastal States do not misuse their enforcement powers and encroach on the rights of other States to access the living resources of the exclusive economic zone (EEZ). In this way, Art. 73 confirms the view that coastal States do not exercise full sovereignty in the EEZ, 1 rather they possess limited rights conferred on them by the Convention.

II. Historical Background The negotiation of Art. 73 was very much tied to the development of the nature of the 3 substantive rights possessed by the coastal State in the EEZ. Thus, early proposals on the subject varied enormously, depending on the position of a particular State. One such proposal relating to the punishment of fishing vessels for violation of conservation and management measures prescribed by the coastal State suggested that ‘[a]rrested vessels and their crew shall be entitled to release upon the posting of a reasonable bond or other security. Imprisonment or other forms of corporal punishment in respect of conviction for fishing violations may be imposed only by the State of nationality of the vessel or individual concerned.’2

1

For further information, see Proelss on Art. 55 MN 15–18 and on Art. 56 MN 8–10. UNCLOS III, United States: Draft Articles for a Chapter on the Economic Zone and the Continental Shelf, UN Doc. A/CONF.62/C.2/L.47, OR III, 222, 224 (Article 21(3)). 2

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Similar provisions were incorporated into the set of articles prepared by the Evensen Group which was in turn highly influential on the text of the informal negotiating text. 3 Indeed, few substantive changes were made to this draft text before the adoption of the Convention in 1982.

III. Elements 1. ‘measures […] necessary to ensure compliance with the laws and regulation adopted’ Art. 73 confers quite broad rights on a coastal State to enforce its laws and regulations relating to living resources in the EEZ. Indeed, the rights of coastal States to enforce fisheries laws and regulations are considerably greater than the rights it possesses to enforce rules for the prevention of pollution from vessels, which are governed by Art. 220. 4 Coastal States can exercise enforcement powers both against vessels which are not authorized to fish in its EEZ, as well as to ensure compliance with laws and regulations by those vessels which are authorized to fish in the EEZ. The International Tribunal for the Law of the Sea (ITLOS) has been confirmed that the power to regulate fishing under Part V of the Convention extends to the regulation of bunkering of fishing vessels. 5 5 Nevertheless there are limits to the rights of coastal States. Art. 73 limits the enforcement jurisdiction of coastal States to measures which are ‘necessary to ensure compliance with the laws and regulations adopted by it in conformity with [the] Convention’. Several possible measures are explicitly identified, notably ‘boarding, inspection, arrest and judicial proceedings’. Thus, there is no doubt that the officials of the coastal State may stop and search a suspect vessel and if there is evidence of a violation, they may bring the vessel to port and start criminal proceedings in the national courts. It should be noted that this list is only illustrative and a coastal State may take other enforcement measures. 6 Whatever measures are taken by a coastal State must, however, be necessary. The inclusion of this condition raises a question about how strictly it will be interpreted by international courts and tribunals. As has been noted elsewhere, the term ‘necessary’ can have a number of different meanings, ranging from ‘indispensible’ to ‘making a contribution to.’6 In the context of boarding, inspection and arrest of foreign fishing vessels in the EEZ, it is likely that the coastal State would have a broad margin of appreciation in deciding what measures are ‘necessary.’7 If the threshold for the exercise of enforcement powers is set too high, it could create an impediment on the coastal State fulfilling its obligations relating to the conservation and management of living resources in the EEZ. 7 In The M/V ‘Virginia G’ Case, ITLOS held that the requirement for enforcement measures to be necessary also applied to the imposition of penalties on foreign fishing vessels.8 In that concrete case, the majority of the Tribunal held that the confiscation of the vessel and the fuel oil was unnecessary, taking into account, inter alia, the fact that the other fishing vessels involved in the bunkering operation had not been subjected to such strict penalties.9 These circumstances led the Tribunal to conclude that the confiscation of the vessel and the fuel oil on board was not necessary for the purposes of Art. 73 (1). The 4

3 UNCLOS III, The Economic Zone (1975, mimeo.), reproduced in: Renate Platzo ¨ der, The Third United Nations Conference on the Law of the Sea: Documents, vol. IV (1982), 209. 4 Cf. also Hamamoto on Art. 220. 5 ITLOS, The M/V ‘Virginia G’ Case (Panama v. Guinea-Bissau), Judgment of 14 April 2014, para. 217. 6 Korea – Various Measures on Beef, WTO Appellate Body Report, 11 December 2000, para. 161. 7 See James Harrison, Safeguards against Excessive Enforcement Measures in the Exclusive Economic Zone – Law and Practice, in: Henrik Ringbom (ed.), Jurisdiction over Ships: Post-UNCLOS Developments in the Law of the Sea (2015) 221–222. 8 The M/V ‘Virginia G’ Case (note 5), para. 257. 9 Ibid., paras. 268–9.

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8–12 Art.

73

approach taken by the Tribunal was, however, criticized in a joint dissenting opinion of Vice-President HOFFMAN and Judges CHANDRASEKHARA RAO, MAROTTA RANGEL, KATEKA, GAO, and BOUGEUTAIA, in which they argued that the Tribunal should only find that a measure was unnecessary if ‘there is a manifest error in the exercise of power or the exercise of power is manifestly arbitrary or if the power is exercised on the basis of facts which do not exist and which are patently erroneous.’10 They went on to say that ‘the term “sovereign rights” ought to carry with it a degree of deference to the coastal State in its exercise of those rights.’11 On the basis of this interpretation, the dissenting judges did not agree that a violation of Art. 73 (1) had occurred. This decision thus demonstrates a split in the jurisprudence as to how much deference should be granted to coastal States in the exercise of their sovereign rights under the Convention. As well as applying the concept of necessity to fisheries penalties, the Tribunal in The M/V 8 ‘Virginia G’ Case also suggested that the measures taken by Guinea-Bissau should be subject to a test of reasonableness. Although reasonable is not expressly included in the relevant provisions of the Convention, the Tribunal nevertheless held that ‘the principle of reasonableness applies generally to measures under article 73 of the Convention.’12 On the facts, the majority of the Tribunal found that the confiscation of the vessel and the fuel oil was also unreasonable. 13 The Convention itself contains very few explicit rules concerning how the enforcement 9 powers of the coastal State should be carried out in practice. Nevertheless, it is generally accepted that the powers of the coastal State include the possibility to use force where necessary.14 In The M/V ‘Saiga’ (No. 2) Case, ITLOS was willing to read such rules into the Convention by reference to ‘considerations of humanity’. Thus, it held that ‘[a]lthough the Convention does not contain express provisions on the use of force in the arrest of ships, international law, which is applicable by virtue of Article 293 of the Convention, requires that the use of force must be avoided as far as possible and, where force is unavoidable, it must not go beyond what is reasonable and necessary in the circumstances.’15

On the facts of that particular case, the Tribunal found that the Guinean authorities had violated these rules, by firing live ammunition from a fast-moving patrol boat without warnings and by firing indiscriminately while on the deck of the vessel, including using gunfire to stop the engine of the ship.16 The way in which an arrest is carried out is also subject to the conditions found in Article 225 of the Convention (� Art. 225). 17 It should also be noted that this provision only applies to the enforcement of fisheries laws 10 and regulations in EEZ, not to the enforcement of fisheries laws and regulations in the territorial sea where a coastal State may have much broader discretion (� Art. 21; Art. 25). The basic provisions in the Convention may also be supplemented by other agreements 11 entered into by the coastal State and the flag state of vessels that have been authorized to fish in the EEZ.

2. ‘Arrested vessels and their crews shall be promptly released upon the posting of reasonable bond’ If the coastal State does exercise its powers of arrest, Art. 73 provides that it must offer to 12 promptly release the vessels or crews pending a trial on payment of a bond or other financial 10 ITLOS, The M/V ‘Virginia G’ Case (Panama v. Guinea-Bissau), Joint Dissenting Opinion of Vice-President Hoffman and Judges Chandrasekhara Rao, Marotta Rangel, Kateka, Gao, and Bougeutaia, para. 54. 11 Ibid., para. 49. 12 The M/V ‘Virginia G’ Case (note 5), para. 270. 13 Ibid. 14 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 794. 15 ITLOS, The M/V ‘Saiga’ (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment 1 July 1999, ITLOS Reports (1999), 10, para. 155. 16 Ibid., paras. 157–159. 17 See Harrison (note 7) 228–229.

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Part V. Exclusive economic zone

security in order to guarantee their participation in any criminal proceedings. As noted by ITLOS in The Monte Confurco Case: ‘Article 73 identifies two interests, the interest of the coastal State to take appropriate measures as may be necessary to ensure compliance with the laws and regulations adopted by it on the one hand and the interest of the flag State in securing prompt release of its vessels and their crews from detention on the other. It strikes a fair balance between the two interests. It provides for release of the vessel and its crew upon the posting of a bond or other security, thus protecting the interests of the flag State and of other persons affected by the detention of the vessel and its crew.’ 18

The balance of these interests is achieved through the setting of the reasonable bond. 19 Art. 292 provides a procedure through which the reasonableness of a bond can be challenged by or on behalf of the flag State.20 ITLOS exercises residual jurisdiction over such disputes, although States may agree on another forum21. 13 The prompt release provision in Art. 73 (2) only applies to vessels that have been arrested under laws and regulations relating to the exploration, exploitation, conservation and management of living resources in the EEZ. In the very first case to come before it, ITLOS took a broad view of the application of the prompt release provision in Art. 73 (2). By a majority, it held that ‘laws or regulations on bunkering of fishing vessels may arguably be classified as laws or regulations on activities within the scope of the exercise by the coastal State of its sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone.’22 Arguably, this decision was a result of the standard of appreciation applied by the Tribunal in the case, namely ‘whether the allegations made are arguable or are of a sufficiently plausible character’.23 Indeed, ITLOS expressly stated that ‘[it] does not foreclose that if a case were presented to it requiring a full examination of the merits it would reach a different conclusion’.24 However, as noted above, ITLOS has subsequently confirmed that the power to regulate fishing under Part V of the Convention extends to the regulation of bunkering of fishing vessels. 25 14 The Tribunal also had a chance to interpret Art. 73 (2) in The ‘Volga’ Case, where it held that: ‘[T]he expression “bond or financial security” in article 73, paragraph 2, should, in the view of the Tribunal, be interpreted as referring to a bond or security of a financial nature. […] It follows from the above that the non-financial conditions cannot be considered components of a bond or other financial security for the purpose of applying article 292 of the Convention in respect of an alleged violation of article 73, paragraph 2 of the Convention.’26

Taking into account the object and purpose of the bond requirement, ITLOS concluded that ‘a “good behaviour bond” to prevent future violations of the laws of a coastal State cannot be considered as a bond or security within the meaning of article 73, paragraph 2, of the Convention read in conjunction with article 292 of the Convention.’27 18 ITLOS, The ‘Monte Confurco’ Case (Seychelles v. France), Judgment 18 December 2000, ITLOS Reports (2000), 86, para. 70. 19 Ibid., para. 72. See generally Erik Franckx, “Reasonable Bond” in the Practice of the International Tribunal for the Law of the Sea, 32 CWILJ (2001–2002), 303–342; see also Treves on Art. 292 MN 28–32. 20 For further information, see Treves on Art. 292. 21 Ibid. 22 ITLOS, The M/V ‘Saiga’ (No. 1) Case (Saint Vincent and the Grenadines v. Guinea), Judgment 4 December 1997, ITLOS Reports (1997), 16, para. 63. For a general comment on the judgment, see Bernard H. Oxman, The M/V ‘Saiga’ (Saint Vincent and the Grenadines v. Guinea). ITLOS Case No. 1, AJIL 92 (1998), 278. 23 Ibid., para. 51. 24 Ibid., para. 51. 25 The M/V ‘Virginia G’ Case (note 5), para. 217. 26 ITLOS, The ‘Volga’ Case (Russian Federation v. Australia), Judgment of 23 December 2002, ITLOS Reports (2002), 10, para. 77. 27 Ibid., para. 80.

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15–17

Art. 73

Thus, the requirement for the vessel to carry a vessel monitoring system pending the conclusion of the criminal proceedings was not permissible under the Convention. 28 In The ‘Volga’ Case, the respondent also challenged the bail conditions imposed on the 15 crew members. Initially, the crew members had been released from custody, but they had been required to surrender their passports and seaman’s papers to the Australian authorities and to stay within the Perth metropolitan area. After appealing these bail conditions, the crew concerned were permitted to return to Spain, but they were required to surrender their passports and seaman’s papers to the Australian embassy in Madrid, and they were also required to report monthly to consular officials. The Tribunal did not deal with this point in its decision.29 However, in light of its reasoning on the other aspects of the case, it is likely that any non-financial conditions attached to the release of the crew would also be contrary to the requirements of Art. 73 (2).

3. ‘Coastal State penalties […] may not include imprisonment […] [or] corporal punishment’ Art. 73 (3) deals with the powers of a coastal State to impose punishments for violations of 16 fisheries laws and regulations if an offender is found guilty at trial. It imposes negative restrictions on the types of punishments that may be used by a coastal State. Firstly, it completely prohibits corporal punishment for fisheries offences. Secondly, it restricts the use of imprisonment as a form of punishment. However, unlike corporal punishment, it does not completely prohibit imprisonment. Imprisonment may still be imposed as a punishment with the agreement of the concerned State. This can be contrasted with the position relating to the punishment of rules relating to the protection of the marine environment where ‘monetary penalties only may be imposed’ (� Art. 230 (1)). It is not clear what is meant by ‘concerned State’ in this context. It presumably includes the flag State that must be informed of any penalties imposed by the coastal State in accordance with Art. 73 (4). However, it may also include the State of nationality of the offender. In practice, the vast majority of States do not permit imprisonment as a sanction for unauthorized fishing30 and many fisheries access agreements explicitly prohibit imprisonment as a penalty for fisheries offences. 31 At the same time, imprisonment may still be used as a penalty for non-fisheries related offences, such as the assault of fisheries inspection officers. 32 The Convention does not impose positive requirements on coastal States in relation to the 17 criminalization of illegal fishing. In this sense, UNCLOS differs from other fisheries instruments that may be relevant in these circumstances. For instance, the UN Fish Stocks Agreement (UNFSA) provides that ‘[s]anctions applicable in respect of violations shall be adequate in severity to be effective in securing compliance and to discourage violations wherever they occur and shall deprive offenders of the benefits accruing from their illegal activities. Measures applicable in respect of masters and 28 However, see the dissenting opinions of Judge Anderson and Judge Ad Hoc Shearer, in The ‘Volga’ Case (note 26). 29 The ‘Volga’ Case (note 26), para. 74. 30 See e. g. Danie `le Mangatelle, Coastal State Requirements for Foreign Fishing, FAO Legislative Study No. 57 (1996), Table E (Penalties for Unauthorized Fishing). 31 E. g. Art. XI (2) Agreement between the Government of the United States of America and the European Economic Community Concerning Fisheries off the Coasts of the United States: ‘In any case arising out of fishing activities under this Agreement, the penalty for violation of fishery regulations shall not include imprisonment except in the case of an enforcement related offense such as assault on an enforcement officer or refusal to permit boarding and inspection’; Art. IX (b) Colombia and Jamaica Fishing Agreement (with annex): ‘the punishment to be imposed by the Colombian Authorities on Jamaican fishermen or crew members who commit any violation of the regulations relating to fishing activities under this Agreement or regulations related to fishing or the conservation of living resources shall not include imprisonment’. Emphasis added. 32 See also David Anderson, Investigation, Detention and Release of Foreign Vessels under the UN Convention on the Law of the Sea of 1982 and Other International Agreements, 11 IJMCL (1996), 170.

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Part V. Exclusive economic zone

other officers of fishing vessels shall include provisions which may permit, inter alia, refusal, withdrawal or suspension of authorizations to serve as masters or officers on such vessels.’ 33

A broader statement to this effect is also found in the Food and Agriculture Organization Code on Conduct on Responsible Fisheries which says that ‘States should ensure that laws and regulations provide for sanctions applicable in respect of violations which are adequate in severity to be effective, including sanctions which allow for the refusal, withdrawal or suspension of authorizations to fish in the event of non-compliance with conservation and management measures in force.’34

18

Within the limits set by Art. 73, coastal states clearly have some discretion as to the types of penalties that they may impose on fishing vessels which are found to have violated their laws and regulations. Although it is not explicitly mentioned by Art. 73, ITLOS has confirmed that such penalties may include the confiscation of a fishing vessel.35 However, it has made clear that the imposition of such measures should not be taken in such as way as to ‘prevent the shipowner from having recourse to available domestic judicial remedies, or as to prevent the flag state from resorting to the prompt release procedure set forth in the Convention; nor should it be taken through proceedings inconsistent with international standards of due process of law.’36 It would appear from this statement that the Tribunal would be willing to police compliance with international human rights standards in the context of judicial proceedings against foreign fishing vessels.

4. ‘In cases of arrest or detention […] the coastal State shall promply notify the flag State’ Art. 73 (4) establishes a duty on the coastal State to ‘promptly notify the flag State, through appropriate channels, of action taken and of any penalties subsequently imposed’ where the coastal State has arrested or detained the foreign vessel. The provision leaves it to the discretion of the coastal State to choose an appropriate channel and any mention of consular or diplomatic channels were dropped from the text in the drafting process. 37 20 This provision only requires notification of the flag State. It is clear under international law that the flag State is competent to seek redress on behalf of crew members, regardless of their nationality, when they have been injured in connection with an injury to the vessel.38 This position was supported by ITLOS in the M/V ‘Saiga’ (No. 2) Case where the Tribunal dismissed objections of Guinea, finding that ‘the ship, every thing on it, and every person involved or interested in its operations are treated as an entity linked to the flag [S]tate. The nationalities of these persons are not relevant.’ 39 Moreover, in its commentary to the Draft Articles on Diplomatic Protection, the International Law Commission makes clear that 19

‘the right of the flag [S]tate to seek redress for the ships’ crew is not limited to redress for injuries sustained during or in the course of an injury to the vessel but extends also to injuries sustained in connection with an injury to the vessel resulting from an internationally wrongful act, that is as a 33

Art. 19 (2) UNFSA. FAO, Code of Conduct for Responsible Fisheries (1995), Art. 7.7.2. 35 ITLOS, The ‘Tomimaru’ Case (Japan v. Russian Federation), Judgment 6 August 2007, ITLOS Reports (2005–2007), 74, para. 72. 36 Ibid., para. 76. 37 Nordquist/Nandan/Rosenne (note 4), 795. Cf. also Papanicolopulu on Art. 244 MN 5–8 for the term ‘appropriate channel’ used in another context. 38 ILC, Report of the International Law Commission: Draft Articles on Diplomatic Protection with Commentaries, UN Doc. A/61/10 (2006), GAOR 61st Sess. Suppl. 10, 22, 90–91 (Art. 18, para. 1): as the commentary of the ILC makes clear, this right cannot be categorized as diplomatic protection although ‘there is nevertheless a close resemblance between this type of protection and diplomatic protection’. 39 M/V ‘Saiga’ (No. 2) Case (note 6), para. 106. 34

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consequence of the injury to the vessel. Thus such a right would arise where members of the ship’s crew are illegally arrested and detained after the illegal arrest of the ship itself.’ 40

Indeed, Art. 292 confirms that an application for prompt release of the vessel or its crew may be made by or on behalf of the flag State of the vessel.41 At the same time, it is clear that the State of nationality of a crew member also retains the 21 right to exercise diplomatic protection on behalf of its nationals. 42 Indeed, States have a right under Art. 36 of the Vienna Convention on Consular Relations (VCCR) to communicate with their nationals and ‘to have access to them’ when they are arrested by another State. Even though the coastal State may not have a duty under UNCLOS to inform any State other than the flag State, there is a duty under the VCCR to ‘inform the consular post of the sending State if […] national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner’.43 This duty thus supplements the duty under Art. 73 (4) to notify the flag State. However, the State of nationality of a crew member does not possess the right to institute prompt release proceedings under Art. 292 of the Convention.

5. Compensation for Injurious Use of Enforcement Powers At the seventh session of the Conference, the USSR proposed adding a provision whereby 22 ‘if the arrest or detention of a foreign vessel is unjustified, the coastal State shall be required to compensate the owner of the vessel for any loss concerned’.44 This proposal was not, however adopted, and there is no provision which provides for compensation if a coastal State misuses any of its enforcement powers under Art. 73. Nevertheless, this possibility must be assumed to exist under the customary international law of State responsibility, whereby a State which has committed an internationally wrongful act ‘is under an obligation to make full reparation for the injury concerned’.45 The ability to claim such compensation is complicated by the fact that the exercise of 23 enforcement powers of the coastal State in the EEZ is potentially shielded from challenge under the Convention dispute settlement procedures. Under Art. 298 (1)(b), States Parties to the Convention may exclude ‘disputes concerning law enforcement activities in regard to the exercise of sovereign rights’ from the compulsory dispute settlement proceedings. Many States have chosen to exercise this option.46

Article 74 Delimitation of the exclusive economic zone between States with opposite or adjacent coasts 1. The delimitation of the exclusive economic zone between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution. 40

Draft Articles on Diplomatic Protection with Commentaries (note 38), 94 (Art. 18, para. 9). See also Treves on Art. 292 MN 33–34. 42 ILC, Report of the International Law Commission: Draft Articles on Diplomatic Protection, UN Doc. A/61/ 10 (2006), GAOR 61st Sess. Suppl. 10,16, 21 (Art. 18). 43 Art. 36 (1)(b) VCCR. 44 UNCLOS III, Informal Suggestion by the USSR: Part V, UN Doc. C.2/Informal Meeting/33 (1978, mimeo.), reproduced in: Renate Platzo¨der (ed.), The Third United Nations Conference on the Law of the Sea: Documents, vol. V (1984), 41 (Article 73). 45 ILC, Responsibility of States for Internationally Wrongful Acts, GA Res. 56/83 of 12 December 2001, Annex (Art. 31 (1)). See also M/V ‘Saiga’ (No. 2) Case (note 6), paras. 170–172. 46 For a list of States which have taken up the optional exclusion under Art. 298 (1)(b) UNCLOS, see Declarations and Reservations to UNCLOS, available at: http://treaties.un.org/Pages/ViewDetailsIII.aspx?&src=TREATY&mtdsg_no=XXI~6&chapter=21&Temp=mtdsg3&lang=en. 41

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2. If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV. 3. 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 of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation. 4. Where there is an agreement in force between the States concerned, questions relating to the delimitation of the exclusive economic zone shall be determined in accordance with the provisions of that agreement. Bibliography: A. O. Adede, The System for Settlement of Disputes under the United Nations Convention on the Law of the Sea (1987); British Institute of International and Comparative Law, Report on the Obligations of States under Articles 74 (3) and 83 of UNCLOS in Respect of Undelimited Maritime Area (2016); Henry Burmester, Torres Strait Treaty: Ocean Boundary Delimitation by Agreement, AJIL 76 (1982), 321–349; Philippe Cahier, Les sources du droit relatif a` la de´limitation de plateau continental, in: Daniel Bardonnet/Jean Combacau/Pierre-Marie Dupuy/Prosper Weil (eds.), Le droit international au service de la paix, de la justice et du de´veloppement: me´langes Michel Virally (1991), 175–182; Lucius Caflisch, The Delimitation of Marine Spaces between States with Opposite and Adjacent Coasts, in: Rene-Jean Dupuy/Daniel Vignes (eds.) A Handbook on the New Law of the Sea, vol. 1 (1991), 425–499; Hungdah Chiu, Some Problems Concerning the Application of the Maritime Boundary Delimitation Provisions of the 1982 United Nations Convention on the Law of the Sea Between Adjacent or Opposite States, Md. J. Int’l L. & Trade 9 (1985), 1–17; Robin Churchill, Dispute Settlement in the Law of the Sea: Survey for 2013, IJMCL 30 (2015), 1–53; Robin Churchill, Dispute Settlement under the UN Convention on the Law of the Sea: Survey for 2007, IJMCL 23 (2008), 601–642; Thomas Cottier, Equitable Principles of Maritime Delimitation: The Quest for Distributive Justice in International Law (2015); Haritini Dipla, Le re´gime juridique des ˆıles dans le droit international de la mer (1984); Malcolm Evans, Relevant Circumstances and Maritime Delimitation (1987); Malcolm Evans, Maritime Boundary Delimitation, in: Donald R. Rothwell/Alex G. Oude Elferink/Karen N. Scott/Tim Stephens (eds.) The Oxford Handbook of the Law of the Sea (2015), 254–279; Malcolm Evans, Maritime Boundary Delimitation: Whatever Next?, in: Jill Barret/Richard Barnes (eds.), Law of the Sea: UNCLOS as a Living Treaty (2016); Stephen Fietta/Robin Cleverly, A Practitioner’s Guide to Maritime Boundary Delimitation (2016); Max Herriman/Martin Tsamenyi, The 1997 Australia-Indonesia Maritime Boundary Treaty: A Secure Legal Regime for Offshore Resource Development? ODIL 29 (1998), 361–396; Paul C. Irwin, Settlement of Maritime Boundary Dispute: An Analysis of the Law of the Sea Negotiations, ODIL 8 (1980), 105–148; S. P. Jagota, Maritime Boundary (1985); Sun Pyo Kim, Maritime Delimitation and Interim Arrangements in North East Asia (2004); Rainer Lagoni/Daniel Vignes (eds.), Maritime Delimitation (2006); Ben Milligan, The Australia-Papua New Guinea Torres Strait Treaty: A Model for Cooperative Management of the South China Sea?, in: Robert C. Beckman (ed.), Beyond Territorial Disputes in the South China Sea: Legal Frameworks for the Joint Development of Hydrocarbon Resources (2013), 268–288; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. II (1993); Natalie Klein, Provisional Measures and Provisional Arrangements in Maritime Boundary Disputes, IJMCL 21 (2006), 423–460; Robert Kolb, Case Law on Equitable Maritime Delimitation: Digest and Commentaries (2003); Rainer Lagoni, Interim Measures Pending Maritime Delimitation Agreements, AJIL 78 (1984), 345–368; Rainer Lagoni/Daniel Vignes (eds.), Maritime Delimitation (2006); Masayoshi Miyoshi, The Joint Development of Offshore Oil and Gas in Relation to Maritime Boundary Delimitation, IBRU Maritime Briefing 2(5) (1999); Daniel P. O’Connell, The International Law of the Sea, Vol. II (1984); Victor Prescott, Current Legal Developments: Australia/Indonesia, IJMCL 12 (1997), 533–547; Tullio Scovazzi, The Evolution of International Law of the Sea: New issues, New Challenges, RCADI 286 (2000) 39–243; Yoshifumi Tanaka, Current Legal Developments: International Court of Justice, IJMCL 23 (2008), 327–346; Yoshifumi Tanaka, Predictability and Flexibility in the Law of Maritime Delimitation (2006); Yoshifumi Tanaka, The International Law of the Sea (2nd edn. 2015); Yoshifumi Tanaka, Unilateral Exploration and Exploitation of Natural Resources in Disputed Areas: A Note on the Ghana/Coˆte d’Ivoire Order of 25 April 2015 before the Special Chamber of ITLOS, ODIL 46 (2015), 315– 330; Yoshifumi Tanaka, Reflections on Maritime Delimitation in the Nicaragua/Honduras Case, Zao¨RV 68 (2008), 903–937; Gerard J. Tanja, The Legal Determination of International maritime Boundaries (1990); Hugh Thirlway, The Law and Procedure of the International Court of Justice: Fifty Years of Jurisprudence, vol. I (2013); Michel Vœlckel, Aperçu de quelques proble`mes techniques concernant la de´limitation des frontie`res maritimes, AFDI 25 (1979), 693– 711; Prosper Weil, Perspective du droit de la de´limitation maritime (1988); Shunji Yanai, International Law Concerning Maritime Boundary Delimitation, in: David Joseph Attard/Malgosia Fitzmaurice/Norman A Martı´nez Gutie´rrez (eds.), The IMLI Manual on International Maritime Law, Volume I: The Law of the Sea (2014), 304–341 Cases: Arbitration between Barbados and the Republic of Trinidad and Tobago, Relating to the Delimitation of the Exclusive Economic Zone and the Continental Shelf between Them (2006), RIAA XXVII, 147; Arbitration between Guyana and Suriname (Guyana v. Suriname) (2007), RIAA XXX, 1; Arbitration under the Timor Treaty (Timor Leste v. Australia) (pending); Case Concerning the Delimitation of Maritime Boundary between Guinea-Bissau and Senegal, 31 July 1989, RIAA XX, 119; Conciliation between the Democratic Republic of Timor-Leste and the Commonwealth of

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Australia (pending); Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic, 30 June 1977–14 March 1978, RIAA XVIII, 3; Delimitation of the Maritime Boundary between Guinea and Guinea-Bissau (1985), RIAA XIX, 149; Delimitation of Maritime Areas between Canada and France (1992), RIAA XXI, 265; ICJ, Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), Judgment of 14 June 1993, ICJ Reports (1993), 38; PCA, Award of the Arbitral Tribunal in the Second Stage – Maritime Delimitation (Eritrea v. Yemen), 17 December 1999, RIAA XXII, 335; ICJ, Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment of 16 March 2001, ICJ Reports (2001), 40; ICJ, Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment of 10 October 2002, ICJ Reports (2002), 303; ICJ, Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment of 19 November 2012, ICJ Reports (2012), 624; ICJ, Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment of 8 October 2007, ICJ Reports (2007), 659; ICJ, Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment of 3 February 2009, ICJ Reports 2009, 61; ITLOS, Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh v. Myanmar), Judgment of 14 March 2012, ITLOS Reports 12 (2012), 4; ICJ, Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment of 24 February 1982, ICJ Reports (1982), 18; ICJ, Case Concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment of 3 June 1985, ICJ Reports (1985), 13; ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Netherlands/Denmark), Judgment of 20 February 1969, ICJ Reports (1969), 3; ICJ, Aegean Sea Continental Shelf Case (Greece v. Turkey), Interim Protection, Order of 11 September 1976, ICJ Reports (1976), 3; ICJ, Maritime Dispute (Peru v. Chile), Judgment of 24 January 2014, ICJ Reports (2014), 3; ICJ, Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States of America), Judgment of 12 October 1982, ICJ Reports (1984), 246; ICJ, Case Concerning the Arbitral Award of 31 July 1986 (Guinea-Bissau v. Senegal), Judgment of 12 November 1991, ICJ Reports (1991), 53, 75 (para. 69); In the Matter of the Bay of Bengal Maritime Boundary Arbitration between the People’s Republic of Bangladesh and the Republic of India (2014), available at: http://www.pca-cpa.org; ITLOS Special Chamber, Dispute Concerning Delimitation of the Maritime Boundary Between Ghana and Coˆte d’Ivoire in the Atlantic Ocean (Ghana/Coˆte d’Ivoire), Request for Provisional Measures, Order of 25 April 2015, available at: https://www.itlos.org/en/cases/list-of-cases/case-no-23/case-no-23-provisionalmeasures/; PCA, Grisbådarna Case (Norway v. Sweden), Award of 23 October 1909, RIAA XI, 147 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘The delimitation of the exclusive economic zone’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘between States with opposite or adjacent coasts’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘by agreement’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. ‘article 38 of the Statute of the International Court of Justice’. . . . . . . . . . . . . . . . . . . 5. ‘an equitable solution’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. ‘the procedures provided for in Part XV’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. ‘in a spirit of understanding and cooperation’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8. ‘provisional arrangements of a practical nature’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9. ‘during this transitional period’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10. ‘not to jeopardize or hamper the reaching of the final agreement’ . . . . . . . . . . . . . . 11. ‘without prejudice to the final delimitation’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12. ‘Where there is an agreement in force between the States concerned’. . . . . . . . . . .

1 3 10 10 11 13 15 16 25 27 28 32 33 39 40

I. Purpose and Function Art. 74 provides rules concerning the delimitation of the exclusive economic zone (EEZ). 1 Art. 74 formulates essentially identical rules as exist for the delimitation of the continental shelf under Art. 83. Art. 74 consists of four provisions. Art. 74 (1) contains a substantive rule governing the delimitation of the EEZ. Art. 74 (2) provides a procedural rule with regard to the settlement of disputes concerning the delimitation of the EEZ. Art. 74 (3) deals with provisional arrangements before reaching the final agreement. Finally, Art. 74 (4) concerns the relationship between Art. 74 and the special agreement concerning the delimitation of the EEZ. Maritime spaces in the international law of the sea are, in essence, defined in relation to the 2 coastal State jurisdiction over each maritime space. Thus, the determination of the spatial extent of coastal State jurisdiction is of central importance in the law. With the emergence of the institutions of the continental shelf (� Part VI) and the EEZ (� Part V), in particular, there is a clear trend that States attempt to acquire the largest maritime spaces possible. As a consequence, Tanaka

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Part V. Exclusive economic zone

the jurisdiction of two or more coastal States overlaps in many parts of the oceans. Without rules governing maritime delimitation in spaces where coastal State jurisdictions overlap, the legal uses of maritime spaces cannot be enjoyed effectively. Maritime delimitation thus occupies the central place within the law of the sea. In this sense, Art. 74, along with Art. 83, is of particular importance in the Convention.

II. Historical Background Maritime delimitation began to take place from the nineteenth century to the beginning of the twentieth century.1 An early case on this matter can be found in the Grisbådarna arbitration between Norway and Sweden of 1909.2 Furthermore, delimitation of the territorial sea was a subject of discussion at the 1930 the Hague Conference for the Codification of International Law.3 With the emergence of the concepts of the continental shelf and the EEZ after World War II, in particular, States attempted to acquire the largest maritime spaces possible. The extension of coastal State jurisdiction over these resource-oriented zones gave rise to many maritime delimitation issues in the world oceans. Thus, maritime delimitation became a particularly important issue in the international law of the sea. 4 At UNCLOS I, rules concerning the delimitation of the territorial sea, the contiguous zone and the continental shelf were enshrined in the Convention on the Territorial Sea and the Contiguous Zone (CTSCZ)4 and the Convention on the Continental Shelf (CSC),5 respectively. However, the concept of the EEZ was first presented at UNCLOS III and there was thus little State practice with regard to the delimitation of the EEZ. At UNCLOS III,6 the negotiations concerning the delimitation of the EEZ and those relating to the delimitation of the continental shelf were carried out together.7 The formulation of Art. 74 (1) and Art. 83 (1) was one of the most contentious issues in the legislative process of the UNCLOS. 8 This is exemplified by the fact that even one year before the adoption of the Convention, no agreement had yet been reached regarding the rules applicable to the delimitation of the EEZ and to the continental shelf.9 The central issue in the negotiations concerned the delimitation method of the EEZ and the continental shelf. In this regard, a deep disagreement existed between the supporters of ‘equidistance’ and the supporters of ‘equitable principles’. Whilst the equidistance method was already incorporated into Arts. 12 and 24 (3) CTSCZ and Art. 6 CSC, the equitable principles method was given currency in the North Sea Continental Shelf judgment of 1969.10 This 3

1 For a general analysis of State practice in this period, see Daniel P. O’Connell, The International Law of the Sea, vol. II (1984), 663–673; Gerard J. Tanja, The Legal Determination of International Maritime Boundaries (1990), 1– 20; Yoshifumi Tanaka, Predictability and Flexibility in the Law of Maritime Delimitation (2006), 19–32. 2 PCA, Grisbådarna Case (Norway v. Sweden), Award of 23 October 1909, RIAA XI, 147. 3 Tanaka (note 1), 32–35. 4 Art. 12 CTSCZ and Art. 24 (3) CTSCZ. 5 Art. 6 CSC. 6 For a legislative history of these provisions, see Myrion H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 800 et seq.; S. P. Jagota, Maritime Boundary (1985), 219–272; Shunji Yanai, International Law Concerning Maritime Boundary Delimitation, in: David Joseph Attard/Malgosia Fitzmaurice/Norman A Martı´nez Gutie´rrez (eds.), The IMLI Manual on International Maritime Law, Volume I: The Law of the Sea (2014), 309–312; Thomas Cottier, Equitable Principles of Maritime Delimitation: The Quest for Distributive Justice in International Law (2015), 213–217; Tanja (note 1), 81–116; Tanaka (note 1), 44–47. See also Dissenting Opinion of Judge Oda in the Tunisia/Libya Case, ICJ, Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment of 24 February 1982, ICJ Reports (1982), 18, 234–247 (paras. 131–145). 7 Nordquist/Nandan/Rosenne (note 6), 801. 8 Lucius Caflisch, The Delimitation of Marine Spaces between States with Opposite and Adjacent Coasts, in: Rene-Jean Dupuy/Daniel Vignes (eds.) A Handbook on the New Law of the Sea (1991), 425, 477. 9 Tanaka (note 1), 46. 10 ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Netherlands/Denmark), Judgment of 20 February 1969, ICJ Reports (1969), 3, 46 (para. 85) and 53 (para. 101 (C) (1)). See also Tanaka on Art. 83 MN 12–14.

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Art. 74

opposition was clearly shown by the two contrasting proposals made in Negotiating Group 7 (NG7) during the Seventh Session in 1978. One was based on equidistance as a general rule: ‘1. The delimitation of the Exclusive Economic Zone Continental Shelf [sic] between adjacent or opposite States shall be effected by agreement employing, as a general principle, the median or equidistance line, taking into account any special circumstance where this is justified.’ 11

The other proposal relied on agreements concluded in accordance with equitable principles: ‘1. The delimitation of the exclusive economic zone between adjacent or/and opposite States shall be effected by agreement, in accordance with equitable principles taking into account all relevant circumstances and employing any methods, where appropriate, to lead to an equitable solution.’ 12

Although, in this session, the Chairman of NG7, MANNER, prepared an informal proposal,13 no compromise materialised between those in support of the ‘equidistance’ and those favouring ‘equitable principles’.14 The opposition between two groups was linked to another hard-core issue, namely, that of 5 peaceful settlement of disputes (� Part XV).15 Although 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’ have generally rejected the idea of a compulsory judicial procedures.16 The confrontation between two groups was not solved during the Eighth Session in 1979. Neither of the differences relating to peaceful settlement mechanism could be resolved.17 In the Ninth Session of 1980, the Chairman of NG7 suggested the following proposal: 6 ‘The delimitation of the exclusive economic zone [continental shelf] between States with opposite or adjacent coasts shall be effected by agreement in conformity with international law. Such an agreement shall be in accordance with equitable principles, employing the median or equidistance line, where appropriate, and taking account of all circumstances prevailing in the area concerned.’ 18

Although the proposal was included as Art. 74/83 of the Informal Composite Negotiating Text (ICNT) Revision 2 of 11 April 1980, the text remained controversial and no consensus was reached on this matter.19 11 This formula was presented by 20 States. UNCLOS III, Bahamas et al.: Informal Suggestions Relating to Paragraphs 1, 2 and 3 of Articles 74 and 84, ICNT, UN Doc. NG//2 (1978, mimeo.), reproduced in: Renate Platzo¨der (ed.), Third United Nations Conference on the Law of the Sea: Documents, vol. IX (1986), 392–393. Members of the NG 7/2 (pro-equidistance) group were: Bahamas, Barbados, Canada, Colombia, Cyprus, Democratic Yemen, Denmark, Gambia, Greece, Guyana, Italy, Japan, Kuwait, Malta, Norway, Spain, Sweden, the United Arab Emirates, the United Kingdom and Yugoslavia: ibid. 12 This formula was supported by 27 States: UNCLOS III, Informal Suggestion by Algeria et al., UN Doc. NG 7/10 (1978, mimeo.), reproduced in: Platzo¨der (note 11), 402. Members of the NG 7/10 (pro-equitable principles) group were: Algeria, Argentina, Bangladesh, Benin, Congo, France, Iraq, Ireland, Ivory Coast, Kenya, Liberia, Libya, Madagascar, Mali, Mauritania, Morocco, Nicaragua, Nigeria, Pakistan, Papua New Guinea, Poland, Romania, Senegal, Syria, Somalia, Turkey and Venezuela: ibid. 13 ‘The delimitation of the exclusive economic zone/continental shelf between opposite or adjacent States shall be effected by agreement with a view of reaching a solution based upon equitable principles, taking account of all the relevant circumstances, and employing, where local conditions do not make it unjustified, the principle of equidistance’: UNCLOS III, Informal Suggestions by the Chairman, UN Doc. NG 7/11 (1978, mimeo.), Platzo¨ der (note 11), 405. Dissenting Opinion of Judge Oda in the Tunisia/Libya Case (note 6), 238–239 (para. 136). 14 UNCLOS III, Report by the Chairman of Negotiating Group 7 on the Work of the Group, UN Doc. NG 7/ 21 (1978, mimeo.), reproduced in: Platzo¨der (note 11), 425–426. 15 Three issues – delimitation criteria, interim measures and settlement of delimitation disputes – were to be settled together as parts of a package solution: UNCLOS III, Report of the Chairman of Negotiating Group 7, UN Doc. A/CONF.62/L.47 (1980), OR XIII, 76 (para. 2). 16 Andronico O. Adede, The System for Settlement of Disputes under the United Nations Convention on the Law of the Sea (1987), 182; Paul C. Irwin, Settlement of Maritime Boundary Dispute: An Analysis of the Law of the Sea Negotiations, ODIL 8 (1980), 105, 110. 17 Second Committee UNCLOS III, 57th Meeting, UN Doc. A/CONF.62/C.2/SR.57 (1979) OR XI, 57, 60 (para. 40). 18 Report of the Chairman of Negotiating Group (note 16), 77 (Annex: Suggestions by the Chairman of Negotiating Group 7). 19 UNCLOS III, Informal Composite Negotiating Text (Revision 2), UN Doc. A/CONF.62/WP.10/REV.2 (1980), OR VIII, 54 and 59.

Tanaka

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Art. 74

7–8

Part V. Exclusive economic zone

In 1981, one year before the adoption of the UNCLOS, TOMMY KOH, President of the Third UN Conference on the Law of the Sea, proposed a draft article which would bring about a compromise between the States favouring the equidistance method and those advocating equitable principles. His proposal enjoyed widespread and substantial support in the two most interested groups of delegations and in the Conference as a whole. 20 On 28 August 1981, the draft was eventually incorporated into the Draft Convention, 21 which became, finally, Art. 74 (1) and 83 (1) in the UNCLOS.22 8 The reference to the delimitation method was also a matter for discussion in the legislative process of Art. 74 (3). Provisional arrangements were, for the first time, mentioned in a working text of the Convention.23 In this regard, Informal Single Negotiating Text (ISNT) of 1975, made an explicit reference to ‘the median line or the equidistance line’, providing that: ‘Pending agreement, no State is entitled to extend its exclusive economic zone beyond the median line or the equidistance line.’24 This provision did seem to imply that the coastal State is entitled to claim its EEZ up to the median line or the equidistance line within areas where delimitation was not or could not be effected. A year later, however, the reference to ‘the median line or the equidistance line’ was omitted in the Revised Single Negotiating Text (RSNT) of 1976 and Art. 62 (3) RSNT simply stipulated that: ‘Pending agreement or settlement, the States concerned shall make provisional arrangements, taking into account the provisions of paragraph 1.’25 The difference of the two texts was closely linked to the two different approaches emerged in the legislative process of Art. 74 (1): an approach which advocated the equidistance method as a general principle and another approach which is based on the equitable principles method. The delegations taking the first approach supported a provision on provisional arrangements along the median or equidistance line, whilst those delegations which favoured delimitation in accordance with the equitable principles supported the formulation of the ICNT.26 In the end, the formulation of Art. 62 (3) of the RSNT was maintained in the ICNT of 197727 and in the ICNT, Revision 1, of 1979.28 In search for a compromise, however, a compromise formula was proposed by a private group convened by the Chairman of NG7 as follows:29 7

‘Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of understanding and co-operation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation.’

20 UNCLOS III, 154th Plenary Meeting, UN Doc. A/CONF.62/SR.154 (1981), OR XV, 39 (Report of the President on the Consultation on Delimitation). See also: UNCLOS III, Proposal on Delimitation, UN Doc. A/ CONF.62/WP.11 (1981, mimeo.), reproduced in: Platzo¨der (note 11), 474; Tanja (note 1), 114–115. 21 UNCLOS III, Draft Convention on the Law of the Sea, UN Doc. A/CONF.62/L.78 (1981), OR XV, 172, 187. 22 UNCLOS III, 184th Plenary Meeting, UN Doc. A/CONF.62/SR.184 (1982), OR XVII, 4, 5. 23 For a legislative history of Art. 74 (3), see in particular, Rainer Lagoni, Interim Measures Pending Maritime Delimitation Agreements, AJIL 78 (1984), 349 et seq. 24 UNCLOS III, Informal Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/PART II (1975), OR IV, 152, 162 (Art. 61 (3)). 25 UNCLOS III, Revised Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/REV.1/PART II (1976), OR V, 151, 164. 26 Lagoni (note 23), 351. 27 UNCLOS III, Informal Composite Negotiating Text, UN Doc. A/CONF.62/WP.10 (1977), OR VIII, 16 (Art. 74 (3)). 28 UNCLOS III, Informal Composite Negotiating Text (Revision 1), UN Doc. A/CONF.62/WP.10/REV.1 (1979), OR VIII, 52 (Art. 74 (3)). 29 UNCLOS III, Report of the Chairman of Negotiating Group 7, UN Doc. A/CONF.62/L.47 (1980), OR XIII, 76, 77. See also Lagoni (note 23), 353.

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74

The formula was inserted in the ICNT, Revision 2 of 1980. 30 The formulation of the ICNT, Revision 2, remained unchanged in the 1981 Draft Convention31 and it eventually became Art. 74 (3). Art. 74 (2) was formulated at a comparatively early stage and the same text of the 9 provision was provided in the ICNT of 1977. After this point, no further changes were made to this provision. The same text of Art. 74 (4) can be seen in the ISNT, of 1975. 32 No change was made concerning this provision in the subsequent negotiating texts.

III. Elements 1. ‘The delimitation of the exclusive economic zone’ The concept of the EEZ comprises the seabed and its subsoil, the waters superjacent to the 10 seabed and the airspace above the waters (� Art. 56 (1)).33 Accordingly, the delimitation of the EEZ comprises the delimitation of the continental shelf within the EEZ. An issue that arises in this regard is whether or not the maritime boundaries of the continental shelf (the seabed and its subsoil) and the EEZ (superjacent waters to the seabed) would coincide. Considering that the relevant circumstances to be taken into account may be different for the seabed and superjacent waters, one cannot totally deny the possibility that the equitable delimitation line of the seabed and its superjacent waters could differ. Whether a single maritime boundary should be drawn depends on the agreement between relevant States. Where there is no agreement drawing a single maritime boundary and a dispute was submitted an international court, a question arises whether the delimitation lines of the continental shelf and the EEZ should coincide. In international jurisprudence relating to maritime delimitations, however, international courts and tribunals have always drawn a single maritime boundary for the EEZ and the continental shelf on the basis of the agreement of the litigating parties. Even though, as shown in the Greenland/Jan Mayen Case, there was no agreement to draw a single maritime boundary,34 the International Court of Justice (ICJ) established a coincident maritime boundary both for the continental shelf and the fishery zone.35 With a few exceptions, a considerable majority of maritime delimitation treaties also establish a single maritime boundary for the continental shelf and the EEZ. Notable exceptions include: the 1978 Torres Strait Treaty between Australia and Papua New Guinea 36 and the 1997 Perth Treaty between Australia and Indonesia on the Timor and Arafra Seas. 37 30 UNCLOS III, Informal Composite Negotiating Text (Revision 2), UN Doc. A/CONF.62/WP.10/REV.2 (1980), OR VIII, 54 (Art. 74 (3)). 31 UNCLOS III, Draft Convention on the Law of the Sea, UN Doc. A/CONF.62/L.78 (1981), OR XV, 172, 187 (Art. 74 (3)). 32 ISNT (note 27), 16. 33 Under Art. 56 (3), the sovereign rights over the seabed and subsoil of the EEZ are to be exercised in accordance with rules governing the continental shelf set out in Part VI. 34 This is the case of the Greenland/Jan Mayen dispute between Denmark and Norway. In this case, the ICJ considered that it was ‘not empowered or constrained by any such agreement for a single dual-purpose boundary’: ICJ, Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), Judgment of 14 June 1993, ICJ Reports (1993), 38, 57 (para. 43). 35 Ibid., 81–82, para. 94. 36 Treaty between Australia and the Independent State of Papua New Guinea Concerning Sovereignty and Maritime Boundaries in the Area between the Two Countries, Including the Area Known as Torres Straits, And Related Matters, 18 December 1978, ILM 18 (1997), 291; See also Choon-ho Park, Australia-Papua New Guinea, Report Number 5-3, in: Jonathan I. Charney/Lewis M. Alexander (eds.), International Maritime Boundaries, vol. I (1993), 929–934; Henry Burmester, Torres Strait Treaty: Ocean Boundary Delimitation by Agreement, AJIL 76 (1982), 321; Ben Milligan, The Australia-Papua New Guinea Torres Strait Treaty: A Model for Cooperative Management of the South China Sea?, in: Robert C. Beckman (ed.), Beyond Territorial Disputes in the South China Sea: Legal Frameworks for the Joint Development of Hydrocarbon Resources (2013), 268. 37 Treaty between the Government of Australia and the Government of Indonesia Establishing an Exclusive Economic Zone Boundary and Certain Seabed Boundaries, 14 March 1997, ILM 36 (1997), 1053 (not yet in force).

Tanaka

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11

Part V. Exclusive economic zone

The Torres Strait Treaty draws four different boundaries: (i) a seabed jurisdiction boundary, (ii) a fisheries jurisdiction boundary, (iii) a single maritime boundary for both the seabed and fisheries, and (iv) a protected zone boundary. The seabed jurisdiction boundary and the fisheries jurisdiction boundary do not coincide. As a consequence, in the ‘top hat’ area where the boundaries for the seabed and the superjacent waters were separated, Australia exercises fisheries jurisdiction, while Papua New Guinea has seabed jurisdiction. The Perth Treaty also established continental shelf and EEZ boundaries which do not coincide. 38 In addition, the 1970 Agreement between Indonesia and Malaysia creates a sharp triangular zone where Malaysia’s territorial sea overlaps Indonesia’s continental shelf. 39

2. ‘between States with opposite or adjacent coasts’ 11

In the earlier jurisprudence concerning maritime delimitations, international courts and tribunals attached great importance to the distinction between opposite and adjacent coasts when evaluating the applicability of the equidistance method.40 It is common knowledge that the ICJ rejected the existence of any obligatory method of continental shelf delimitation in the North Sea Continental Shelf Cases.41 In this regard, the Court made a distinction between opposite and lateral equidistance lines. According to the Court, ‘[W]hereas a median line divides equally between the two opposite countries areas that can be regarded as being the natural prolongation of the territory of each of them, a lateral equidistance line often leaves to one of the States concerned areas that are a natural prolongation of the territory of the other’.42

Furthermore, ‘[T]the distorting effects of lateral equidistance lines under certain conditions of coastal configuration are nevertheless comparatively small within the limits of territorial waters, but produce their maximum effect in the localities where the main continental shelf areas lie further out’. 43

To the Court, the distorting effect of the equidistance method was one of the important reasons for rejecting the application of that method in a situation of adjacency. Later on, the obligatory character of the equidistance method was also rejected by the ICJ in the Tunisia/ Libya Case,44 the Gulf of Maine Case45 and the Libya/Malta Case46 and tribunals in the Guinea/Guinea-Bissau Arbitration47 and St. Pierre and Miquelon Arbitration.48 In international jurisprudence between 1969 and 1992, it appears that international courts and tribunals were less favourable to the application of the equidistance method in a situation of adjacency.49 However, it cannot pass unnoticed that even in this period, international courts 38 See Tanaka (note 1), 338–343; Max Herriman/Martin Tsamenyi, The 1997 Australia-Indonesia Maritime Boundary Treaty: A Secure Legal Regime for Offshore Resource Development? ODIL 29 (1998), 361; Victor Prescott, Current Legal Developments: Australia/Indonesia, IJMCL 12 (1997), 533. 39 Treaty between the Republic of Indonesia and Malaysia Relating to the Delimitation of the Territorial Seas of the Two Countries in the Strait of Malacca, 17 March 1970, reproduced in: Charney/Alexander (note 36), 1035. 40 See Tanaka on Art. 83 MN 7. 41 North Sea Continental Shelf Cases (note 10), 49 (para. 90) and 53 (para. 101(B)). 42 Ibid., at 37, para. 58. 43 Ibid., para. 59. 44 Tunisia/Libya Case (note 7), 59 (para. 70). 45 ICJ, Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States of America), Judgment of 12 October 1984, ICJ Reports (1984), 246, 315 (paras. 162–163). 46 ICJ, Case Concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment of 3 June 1985, ICJ Reports (1985), 13, 38–39 (para. 45). 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. Ibid., 52–53, para. 73. 47 Delimitation of the Maritime Boundary between Guinea and Guinea-Bissau, Award of 14 February 1985, RIAA XIX, 149, para. 89. The French text is the authentic one. 48 Delimitation of Maritime Areas between Canada and France (1992), RIAA XXI, 265, para. 38. 49 The delimitation process in maritime delimitation cases are highly complicating and no detailed examination can be made here. For a detailed analysis of the delimitation process, see Tanaka (note 1) 51 et seq. See also

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and tribunals tended to apply the equidistance method at the first stage of the maritime delimitation between States with opposite coasts.50 The ICJ, in the 2001 Qatar/Bahrain Case, broke the new ground by clearly accepting the 12 applicability of the equidistance method under customary law in a situation of adjacency. In fact, the Court explicitly stated that it ‘will first provisionally draw an equidistance line and then consider whether there are circumstances which must lead to an adjustment of that line’.51 By the same token, the ICJ, in the Cameroon/Nigeria Case, also applied the equidistance method at the first stage of the maritime delimitation relating to adjacent coasts. 52 It can be observed that, presently, international courts and tribunals apply the equidistance line at the first stage of maritime delimitation regardless of the configuration of the coasts, unless there are compelling reasons as a result of which the establishment of a provisional equidistance line is not feasible. In this sense, it could be said that the distinction made between opposite and adjacent coasts has become less important in the international jurisprudence concerning maritime delimitations.53

3. ‘by agreement’ In the 1984 Gulf of Maine Case, the Chamber of the ICJ stated that, as a ‘fundamental 13 norm’ applicable to every maritime delimitation between neighbouring States, maritime delimitation must be sought and effected by means of an agreement in good faith. 54 As shown in the dictum of the Chamber, delimitation by agreement is fundamental for the international law of maritime delimitation and the same is true of the delimitation of the EEZ. The reference to ‘by agreement’ in conjunction with ‘in order to achieve an equitable 14 solution’ in Art. 74 (1) may seem to contradict the rule of international law according to which States may freely determine the content of agreements in the absence of jus cogens. As Art. 74 (1) cannot be considered as jus cogens, States may freely conclude any agreements even if they are not equitable.55 Whilst Art. 74 (1) might seem to stress delimitation by agreement, it is clear that this provision, read together with Art. 74 (2), is not intended to rule out judicial settlement in the absence of such an agreement. 56 In fact, many maritime delimitation disputes have been settled through international adjudication.

4. ‘article 38 of the Statute of the International Court of Justice’ The reference to ‘article 38 of the Statute of the International Court of Justice’ 57 leaves 15 some room for discussion in four respects. First, this reference does not spell out the law applicable to maritime delimitation simply by enumerating the sources of international law. Yoshifumi Tanaka, The International Law of the Sea (2nd edn. 2015), 202 et seq. and Tanaka on Art. 83 MN 12 et seq. However, it must be noted that the 1977 Anglo-French Continental Shelf arbitration constitutes a notable exception in the period between 1969 and 1992. In the Atlantic region where a lateral delimitation is at issue, the Court of Arbitration applied the equidistance method as a starting point. Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic, 30 June 1977– 14 March 1978, RIAA XVIII, 3, 112 (para. 240). 50 Tanaka (note 1), 121. 51 ICJ, Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment of 16 March 2001, ICJ Reports 2001, 40, 111 (para. 230). 52 ICJ, Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment of 10 October 2002, ICJ Reports 2002, 303, 441–442 (paras. 288–290). 53 Robert Kolb, Case Law on Equitable Maritime Delimitation: Digest and Commentaries (2003), 548. 54 Gulf of Maine Case (note 45), 299–300 (para. 112). 55 Caflisch (note 8), 484; Haritini Dipla, Le re ´gime juridique des ˆıles dans le droit international de la mer (1984), 221, 225. 56 Caflisch (note 8), 483. 57 Statute of the International Court of Justice (ICJ Statute). The electronic text is available at: http://www.icjcij.org/documents/index.php?p1=4&p2=2&p3=0.

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Thus, it is not of much use in determining the applicable law.58 Arguably, the lack of specificity is the most serious weakness of Art. 74 (1) since an essential issue of maritime delimitations concerns the specific delimitation method.59 Second, the principal sources defined in Art. 38 are treaty and custom. At least at the time of the adoption of the UNCLOS, however, there was neither a general treaty regulating the delimitation of the EEZ nor customary rules on that subject. Accordingly, some doubts could be expressed regarding the usefulness of the reference to treaty and to custom. 60 Third, since the ‘general principles of law recognized by civilized nations’ has no role to play in the context of maritime delimitation, the general principles mentioned in Art. 38 ICJ Statute may not be useful.61 Fourth, the text of Art. 74 (1) refers to Art. 38 ICJ Statute as a whole. However, Art. 38 (2) ICJ Statute defines decisions ex aequo et bono, i. e. extra-legal considerations. There may be some scope for arguing that the reference in Art. 74 (1) should have been limited to Art. 38 (1). Yet suggestions to this effect were defeated at UNCLOS III. 62 Given that Art. 38 (2) ICJ Statute applies only when the litigating parties agreed thereto and, to this day, there is no case where the ICJ gave its judgments on the basis of ex aequo et bono, the reference to Art. 38 as a whole is not problematic.

5. ‘an equitable solution’ 16

Art. 74 (1) offers scant explanation about the contents of ‘an equitable solution’ in the context of maritime delimitations. Thus, the equitableness of maritime boundaries must be evaluated on a case-by-case basis. The concept of equity in the context of maritime delimitations is embodied in the equitable principles, which was declared by the ICJ in the 1969 North Sea Continental Shelf Cases.63 Arguably, equitable principles are at the heart of the international law of maritime delimitation. In relation to this, the Court held that: ‘Equity does not necessarily imply equality. There can never be any question of completely refashioning nature, and equity does not require that a State without access to the sea should be allotted an area of continental shelf, any more than there could be a question of rendering the situation of a State with an extensive coastline similar to that of a State with a restricted coastline. Equality is to be reckoned within the same plane, and it is not such natural inequalities as these that equity could remedy’.64

17

In the application of equitable principles, however, a central issue involves the applicability of the equidistance method. In the international jurisprudence relating to delimitations of the EEZ and the continental shelf, one can identify two contrasting approaches to this matter: an approach which denies any obligatory method of maritime delimitation and an equidistance/relevant circumstances approach which applies the equidistance method at the first stage and envisages shifting of the provisional equidistance line taking account of relevant circumstances at the second stage of maritime delimitation. 65 In essence, the first approach seeks to maintain maximum flexibility, whilst the second approach aims to enhance predictability in the law of maritime delimitation. The history 58 Philippe Cahier, Les sources du droit relatif a ` la de´limitation de plateau continental, in: Daniel Bardonnet/ Jean Combacau/Pierre-Marie Dupuy/Prosper Weil (eds.), Le droit international au service de la paix, de la justice et du de´veloppement: me´langes Michel Virally (1991), 175. 59 Judge Gros called Art. 74 (1), along with Art. 83(1), ‘an empty formula’. Gulf of Maine Case (note 45), Dissenting Opinion of Judge Gros, 365 (para. 8). 60 Caflisch (note 8), 480–481. The situation differs in continental shelf delimitation. See Tanaka on Art. 83 MN 11. 61 Hungdah Chiu, Some Problems Concerning the Application of the Maritime Boundary Delimitation Provisions of the 1982 United Nations Convention on the Law of the Sea Between Adjacent or Opposite States, Md. J. Int’l L. & Trade 9 (1985), 1, 8. 62 Caflisch (note 8), 485. 63 North Sea Continental Shelf Cases (note 10), 46 (para. 85) and 53 (para. 101 (C) (1)). 64 Ibid., 49–50, para. 91. 65 In the case of the delimitation of the territorial sea, the equidistance method is clearly incorporated in Art. 15. See also Symmons on Art. 15 MN 23–34.

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of the law of maritime delimitation shows a vacillation between these two contrasting approaches to equitable principles. It can be argued that the development of the law of maritime delimitation is essentially characterised by the tension between predictability and flexibility in the law. In the 1969 North Sea Continental Shelf Cases, the ICJ took the first approach, stating 18 that ‘it is necessary to seek not one method of delimitation, but one goal’.66 It did not admit the existence of any obligatory method of continental shelf delimitation, including the equidistance method.67 According to this approach, it is the goal which should be stressed, and the law of maritime delimitation should be defined only by this goal, i. e., the achievement of equitable results. As a consequence, no specific method of delimitation, including the equidistance method, is incorporated into the legal domain, and the law of maritime delimitation prescribes only an equitable result. It can be considered that the ICJ’s approach emphasises maximum flexibility on the basis of the concept of creative equity or l’e´quite´ cre´atrice.68 According to this approach, however, the normative level of the law of maritime delimitation remains minimum. The Court’s approach was further promoted in the 1982 Tunisia/Libya Case. In fact, the Court in this case accepted neither the mandatory character of equidistance, nor some privileged status of equidistance in relation to other methods.69 Thus, the Court drew an illustration delimitation line on the continental shelf without relying on the equidistance method. In the first zone, the Court drew the illustrative continental shelf boundary taking account of the conduct of the parties, a modus-vivendi line of delimitation concerning fisheries jurisdiction, the factor of perpendicularity to the coast and the concept of prolongation of the general direction of a land boundary. In the second zone, the Court drew the boundary by considering the general change in the direction of the Tunisian coast and the Tunisian Kerkennah Islands. 70 The ICJ’s approach was echoed by the Chamber of the ICJ in the 1984 Gulf of Maine Case 19 establishing the delimitation of a single maritime boundary. In this case, the Chamber specified 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 fundamental norm is: ‘(2) 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 configuration of the area and other relevant circumstances, an equitable result’.71 According to the Chamber, the law defines neither the equitable criteria nor the practical method, simply advancing the idea of ‘an equitable result.’72 Likewise, the full Court in the 1985 Libya/Malta Case stressed the goal, i. e. the equitable result, of maritime delimitation and refused to accept the obligatory character of the equidistance method.73 The same approach was adopted by the 1985 Guinea/Guinea-Bissau arbitration,74 and the 1992 St. Pierre and Miquelon Arbitration.75 By contrast, the Court of Arbitration in the 1977 Anglo-French Continental Shelf Arbitration 20 took an approach different from that of the ICJ in the North Sea Continental Shelf Cases. In this case, the Court of Arbitration equated Art. 6 of the 1958 Geneva Convention on the Continental 66

Ibid., 50, para 92. Ibid., para. 101 (B). See also 49, para. 90. Weil refers to the concept of ‘e´quite´ autonome’ (‘autonomous equity’). Prosper Weil, Perspectives du droit de la de´limitation maritime (1988), 179–181. 69 Ibid., 79, para. 110. 70 Tunisia/Libya Case (note 7), 84 (para. 118 et seq.). 71 Gulf of Maine Case (note 45), 300 (para. 112). 72 Ibid., 312–313, paras. 157–158; ibid., 315, paras. 162-163. 73 Libya/Malta Case (note 46), 37–39 (paras. 43–45). At the stage of establishing the continental shelf boundary, however, the Court applied the equidistance method as the first provisional step, and the equidistance line was adjusted in a second stage on account of relevant circumstances. In so doing, it de facto adopted the correctiveequity approach for the delimitation of the continental shelf between opposite coasts at the operational stage. 74 Delimitation of the Maritime Boundary between Guinea and Guinea-Bissau (1985), RIAA XIX, 149, para. 89. 75 Delimitation of Maritime Areas between Canada and France (note 48), para. 38. 67 68

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Shelf, as a single combined equidistance-special circumstances rule, to the customary law of equitable principles.76 The Court of Arbitration then applied the equidistance method with modification in the Atlantic region. The Court’s view on this matter bears quoting: ‘The Court notes that in a large proportion of the delimitations known to it, where a particular geographical feature has influenced the course of a continental shelf boundary, the method of delimitation adopted has been some modification or variant of the equidistance principle rather than its total rejection. […] [I]t 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.’77

According to the approach of the Court of Arbitration, the equidistance method is applied at the first stage of delimitation, and then a shift of the equidistance line may be envisaged if relevant circumstances warrant it in order to achieve an equitable result; equity comes into play as a corrective element. This approach is based on the concept of corrective equity or l’e´quite´ correctrice.78 Given that equidistance is the only objective method for ensuring predictability of results in the sense that once the base points are fixed, the delimitation line is mathematically determined,79 the equidistance/relevant circumstances approach or the two-step approach heightens predictability in the law of maritime delimitation. 21 The equidistance/relevant circumstances approach adopted in the Anglo-French Continental Shelf Arbitration was echoed by the ICJ in the 1993 Greenland/Jan Mayen Case.80 Given that the ICJ has been less favourable to the equidistance/relevant circumstances approach, the judgment in the Greenland/Jan Mayen Case can be considered as a turning point of the case law relating to maritime delimitation. Subsequently the equidistance/relevant circumstances approach was taken by the 1999 Eritrea/Yemen Arbitration Second Stage. 81 Further, the ICJ, in the 2001 Qatar/Bahrain Case, applied the equidistance/relevant circumstances approach under customary law in the delimitation between States with adjacent coasts. 82 Moreover, in the Cameroon/Nigeria Case, the ICJ notably applied the equidistance method at the first stage of maritime delimitations under Art. 74 and 83.83 According to the Court’s interpretation, a specific method, i. e., the equidistance method, should be incorporated into Art. 74 (1) and 83 (1). Given that any reference to a specific delimitation method was omitted in drafting those provisions, this is thought to be a judicial innovation. In the 2006 Barbados/Trinidad and Tobago Arbitration, the Arbitral Tribunal took the equidistance/relevant circumstances approach in the operation of maritime delimitation under Art. 74 and 83,84 even though it did not admit a mandatory character of any delimitation method. The ICJ, in the 2007 Nicaragua/ Honduras Case, found itself that it cannot apply the equidistance line because of the very active morphodynamism of the relevant area. Accordingly, it established a single maritime boundary by applying the bisector method. Nonetheless, the Court accepted that: ‘[E]quidistance remains the general rule’.85 In fact, concerning the delimitation around the islands in the dispute area, the Court applied, without any problem, the equidistance/relevant circumstances approach by 76

Anglo-French Continental Shelf Arbitration (note 49), 45, para 70. Emphasis added. Ibid., at 116, para 249. The Court took into account the fact that, in the Atlantic region, Art. 6 was applicable. As Art. 6 is the particular expression of a customary law of equitable principles, the result would be the same as if customary law had been applied. 78 Weil (note 68), 179. 79 Hugh Thirlway, The Law and Procedure of the International Court of Justice: Fifty Years of Jurisprudence, vol. I (2013), 444. 80 Greenland/Jan Mayen Case (note 35), 58–62 (paras. 46–56). 81 PCA, Award of the Arbitral Tribunal in the Second Stage – Maritime Delimitation (Eritrea v. Yemen), 17 December 1999, RIAA XXII, 335, 365 (paras. 131–132). 82 Qatar/Bahrain Case (note 51), 91 (para. 167) and 111 (para. 230). 83 Nigeria/Cameroon Case (note 53); 441–442 (paras. 288–290). 84 Arbitration between Barbados and the Republic of Trinidad and Tobago, Relating to the Delimitation of the Exclusive Economic Zone and the Continental Shelf between Them (2006), RIAA XXVII, 147. 85 ICJ, Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment of 8 October 2007, ICJ Reports (2007), 659, 745 (para. 281). 77

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referring to the Qatar/Bahrain Case.86 Hence, it may be argued that the departure from the previous jurisprudence is only partial.87 In the 2007 Guyana/Suriname Arbitration, the Arbitral Tribunal applied the equidistance/relevant circumstances approach more clearly under Art. 74 and 83.88 A further development can be seen in the 2009 Black Sea Case. In this case, for the first time 22 in its jurisprudence the ICJ adopted the three-stage approach under Arts. 74 and 83. The first stage is to establish the provisional equidistance line. At the second stage, the Court will examine whether there are relevant circumstances calling for the adjustment of the provisional equidistance line in order to achieve an equitable result. At the final and third stage, the Court will verify whether the delimitation line does not lead to an inequitable result by applying the test of disproportionality.89 Given that the disproportionality test aims to check for an equitable outcome of the maritime delimitation, it may be argued that the three-stage approach also relies essentially on the concept of corrective equity. In this sense, the three-stage approach can be considered as a variation of the equidistance/relevant circumstances approach. It has been applied by the ICJ in its subsequent cases. The three-stage approach was followed by the International Tribunal for the Law of the Sea (ITLOS) in the 2012 Bay of Bengal Case90 and the 2014 arbitration between Bangladesh and India.91 In a broad perspective, it can be observed that the law of maritime delimitation is moving 23 from the approach based on the concept of creative equity to the three-stage approach based on the concept of corrective equity.92 By incorporating the equidistance method into the realm of law, the corrective-equity approach is thought to enhance predictability of the law of maritime delimitation. Equidistance can provide an objective criterion for testing the equitableness of a delimitation line taking relevant circumstances into account. 93 One can thus argue that the three-stage approach would provide a better framework for balancing predictability and flexibility in the law of maritime delimitation.94 All in all, as the ITLOS aptly observed in the Bay of Bengal Case, it may be said that: ‘Over time, the absence of a settled method of delimitation prompted increased interest in enhancing the objectivity and predictability of the process’.95 Under the three-stage approach, the location of the delimitation line is determined by shifting 24 the provisional equidistance line on the basis of the consideration of relevant circumstances. In broad terms, relevant circumstances can be divided into two categories: geographical and non86

Ibid., 752 (para. 304). Yoshifumi Tanaka, Current Legal Developments: International Court of Justice, IJMCL 23 (2008), 327, 342– 343 (Case Concerning the Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (8 October 2007)). See also Robin Churchill, Dispute Settlement Under the UN Convention on the Law of the Sea: Survey for 2007, IJMCL 23 (2008), 601, 622–624. 88 Arbitration between Guyana and Suriname (Guyana v. Suriname) (2007), RIAA XXX, 1, 93 (para. 335) and 95 (para 342). 89 ICJ, Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment of 3 February 2009, ICJ Reports (2009), 61, 101–103 (paras. 115–122). 90 ITLOS, Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh v. Myanmar), Judgment of 14 March 2012, ITLOS Reports 12 (2012), 67–68, para. 240. 91 In the Matter of the Bay of Bengal Maritime Boundary Arbitration between the People’s Republic of Bangladesh and the Republic of India (2014), 99-11 (paras. 345–346) available at: http://www.pca-cpa.org. 92 See also Speech by His Excellency Judge Gilbert Guillaume, President of the International Court of Justice, to the Sixth Committee of the General Assembly of the United Nations, 31 October 2001, available at: http:// www.icj-cij.org/court/index.php?pr=81&pt=3&p1=1&p2=3&p3=1&PHPSESSID=5c407. 93 Tullio Scovazzi, The Evolution of International Law of the Sea: New issues, New Challenges, RCADI 286 (2000) 39, 200; Michel Vœlckel, Aperçu de quelques proble`mes techniques concernant la de´limitation des frontie`res maritimes, AFDI 25 (1979), 693, 706–707. 94 Tanaka (note 1), 352 and 354. 95 Bay of Bengal Case (note 90), 65 (para. 228). It is also to be noted that as shown in the Gulf of Maine Case (note 45) and the Libya/Malta Case (note 46), the ICJ seemed to accept the validity of the corrective-equity approach in the maritime delimitation between States with opposite coasts, even when it supported the resultoriented equity approach. 87

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geographical.96 Principal geographical elements include configuration of the coast, proportionality, presence of islands, baselines, the presence of third States, whilst non-geographical elements include economic factors, the conduct of the Parties, historic rights, security interests, navigation, environmental factors and traditional livelihood. International jurisprudence presents a clear trend for more importance to be given to geographical than to non-geographical factors. Among multiple geographical factors, proportionality performs a function as an ex post facto test of equitableness of the delimitation line at the third stage of maritime delimitation. Further, effects given to islands are always at issue where islands exist in the delimitation area. In this regard, one can recognise three types of effects given to islands: full effect, partial or half effect and no effect ignoring the existence of an island concerned. The existence of third States also constitutes an element to be examined where a decision of international courts and tribunals in a given case may affect the rights of these States over marine spaces. By contrast, with a few exceptions, the role of non-geographical factors remains modest.

6. ‘the procedures provided for in Part XV’ Under Art. 74 (2), when the parties in dispute cannot reach an agreement with regard to the delimitation of the EEZ ‘within a reasonable period of time’, the dispute is subject to procedures of dispute settlement in Part XV. However, this provision provides no precision with regard to the phrase ‘within a reasonable period of time’.97 Accordingly, it is less clear when the disputing parties are required to resort to procedures provided in Part XV. 26 Maritime delimitation disputes may be exempted from the compulsory procedure provided for in Section 2 of Part XV in accordance with Art. 298 (1)(a)(i). Where no agreement is reached in negotiations between the parties, they are subject to the compulsory conciliation under Section 2, Annex V.98 Yet, 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 such submission.99 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 procedures provided for in Section 2, unless the parties otherwise agree in accordance with Art. 298(1)(a)(ii). Under Art. 298(1)(a)(iii), however, Art. 298(1)(a) does not apply to any sea boundary dispute 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. 25

7. ‘in a spirit of understanding and cooperation’ 27

According to the Arbitral Tribunal in the Guyana/Suriname Arbitration, ‘the inclusion of the phrase ‘in a spirit of understanding and cooperation’ indicates the drafters’ intent to require of the parties a conciliatory approach to negotiations, pursuant to which they would be prepared to make concessions in the pursuit of a provisional arrangement. 100 It may be said that the phrase ‘in a spirit of understanding and cooperation’ reflects the principle of good faith. In this regard, it is relevant to note that Art. 300 explicitly contains the obligation 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.101 Here the dictum of the ICJ the North Sea Continental Shelf Cases deserves quoting:

96 For a detailed analysis of relevant circumstances, see Malcolm Evans, Relevant Circumstances and Maritime Delimitation (1987); Tanaka (note 1), 151 et seq; Cottier (note 6), 525 et seq. 97 Nordquist/Nandan/Rosenne (note 6), 815. 98 See generally Hamamato on Annex V. 99 Art. 298 (1)(a)(i). 100 Guyana/Suriname Arbitration (note 88), 130–132 (para. 461). 101 North Sea Continental Shelf Cases (note 10), 48 (para. 87).

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‘[T]he parties are under an obligation to enter into negotiations with a view to arriving at an agreement, and not merely to go through a formal process of negotiation as a sort of prior condition for the automatic application of a certain method of delimitation in the absence of agreement; they are under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modification of it.’102

8. ‘provisional arrangements of a practical nature’ Art. 74 (3) contains a positive obligation on the States concerned to make every effort to 28 conclude provisional arrangements of a practical nature pending agreement on delimitation. In this regard, the Arbitral Tribunal in the Guyana/Suriname Arbitration stated that: ‘provisional arrangements of a practical nature have been recognized as important tools in achieving the objectives of the Convention, and it is for this reason that the Convention imposes an obligation on parties to a dispute to ‘make every effort’ to reach such arrangements’. 103 Joint exploitation of natural resources is a case in point. In this regard, the ICJ in the North Sea Continental Shelf Cases held that agreements for joint exploitation were particularly appropriate where areas of overlapping claims result from the method of delimitation chosen and there is a question of preserving the unity of deposits.104 In practice, there are some joint development schemes created in areas where delimitation was not or could not be effected. 105 The legislative history of Art. 74 (3) suggests that the concept of provisional arrangements 29 pending delimitation of the EEZ was not considered as a codification of customary international law. Thus, the positive obligation under Art. 74 (3) will be binding only upon State Parties to the UNCLOS.106 Although Art. 74 (3) does not specify the area to which the provisional arrangements apply, it is reasonable to consider that the obligation under Art. 74 (3) applies to those areas where States hold opposing views.107 Here, two points must be noted. First, as the ICJ pointedly observed in the North Sea Continental Shelf Cases, ‘[e]vidently any dispute about boundaries must involve that there is a disputed marginal or fringe area, to which both parties are laying claim’.108 Second, the determination of disputing areas is more complicating where the rights of a third State involves in the areas.109 Art. 74 (3) provides no further precision concerning the meaning of the phrase ‘of a 30 practical nature’.110 Thus, provisional arrangements of a practical nature need to be addressed on a case-by-case basis.111 One of the practical arrangements relates to the establishment of joint development schemes.112 The Japan/South Korea Joint Development Zone created in the 1974 Agreement between Japan and the Republic of Korea Concerning Joint Development of the Southern Part of the Continental Shelf Adjacent to the Two Countries is a case in point.113 Further, in the Timor Sea, the Joint Petroleum Development Area was set out by the 2001 Timor Sea Arrangement between Australia and the United Nations Transitional Administration in East Timor.114 Moreover, the 2006 Treaty on Certain 102

Ibid., 47, para. 85. Guyana/Suriname Arbitration (note 88), 131 (para. 464). 104 North Sea Continental Shelf Cases (note 10), 52 (para. 99). See also Guyana/Suriname Arbitration (note 88), 131 (para. 463). 105 Tanaka (note 1), 284 et seq. See also Masayoshi Miyoshi, The Joint Development of Offshore Oil and Gas in relation to Maritime Boundary Delimitation, IBRU Maritime Briefing 2(5) (1999). 106 Lagoni (note 23), 349 and 354. 107 Ibid., 356. 108 North Sea Continental Shelf Cases (note 10), 22 (para. 20). 109 Lagoni (note 23), 357. 110 Nordquist/Nandan/Rosenne (note 6), 815. 111 For an analysis of provisional arrangements in State practice, see Natalie Klein, Provisional Measures and Provisional Arrangements in Maritime boundary Disputes, IJMCL 21 (2006), 432 et seq. 112 Tanaka (note 1) 284–287. 113 Agreement between Japan and the Republic of Korea Concerning Joint Development of the Southern Part of the Continental Shelf Adjacent to the Two Countries, 30 January 1974, UNTS 1225, 19778. 114 Reproduced in: Charney/Smith (note 36), 2769. 103

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Maritime Arrangements in the Timor Sea (CMATS Treaty) aims to allow the exploitation of the Greater Sunrise gas reservoirs to proceed, whilst suspending maritime boundary claims.115 At the same time, the 2006 Treaty makes it clear that nothing contained in this Treaty shall be interpreted as prejudicing Timor-Leste’s or Australia’s legal position on the maritime boundaries and as recognition of any right or claim of the other Party to the whole or any part of the Timor Sea.116 It thus prohibits the Parties from asserting claims to sovereign rights and jurisdiction and maritime boundaries in relation to the other for the period of 50 years.117 On 23 April 2013, however, the Republic of Timor-Leste instituted arbitral proceedings against Australia with regard to the alleged invalidity of the CMATS Treaty pursuant to the Treaty between the Government of East Timor and the Government of Australia of 20 May 2002 (pending).118 31 Likewise, establishing interim fishery arrangements may also be regarded as a provisional arrangement of a practical nature. During the Gulf of Maine disputes, for example, Canada and the United States signed an Interim Reciprocal Fisheries Agreement on 24 February 1977 and provisionally implemented pending its entry into force on 26 July 1977. Although the Agreement expired at the end of 1977, the two States have maintained an interim regime of flag-State enforcement procedures in the boundary regions along the lines of the 1977 Agreement pending the entry into force of a 1979 Fisheries Agreement and, subsequently, when that Agreement failed to come into force, pending the proceedings of the Gulf of Maine Case before the ICJ.119 To take another example, the 1998 Agreement on Fisheries between the Republic of Korea and Japan120 establishes joint fishing zones in the Sea of Japan and in the East China Sea.

9. ‘during this transitional period’ 32

Art. 74 (3) offers scant explanation about the phrase ‘transitional period’. Accordingly, it remains less clear when the transitional period begins and when the obligation is to be suspended. In light of the object and purpose of this provision, it seems reasonable to consider that the obligation must arise as soon as the claims of States overlap in a marine space. The obligation under Art. 74 (3) would also arise when one of the parties in dispute refused to enter into negotiation on the maritime delimitation. It continues to apply if the negotiations between the parties reach a deadlock or are discontinued. 121

10. ‘not to jeopardize or hamper the reaching of the final agreement’ 33

Art. 74 (3) also contains a negative obligation not to jeopardize or hamper the reaching of the final agreement. Although Art. 74 (3) contains no indication of what is meant by the phrase 115 The Treaty entered into force on 23 February 2007. Text in: Australian Treaty Series, 2007, ATS 12, available at: http://www.austlii.edu.au/au/other/dfat/treaties/2007/12.html. See also Robin Churchill, Dispute Settlement in the Law of the Sea: Survey for 2013, IJMCL 30 (2015),1, 46. 116 Art. 2 (1) CMATS Treaty. 117 Art. 4 (1) and Art. 12 (1) CMATS Treaty. 118 See website of the Permanent Court of Arbitration: http://www.pca-cpa.org/showpage.asp?pag_id=1403. See also Information on the Australian Government website at: http://www.foreignminister.gov.au/releases/2013/ bc_mr_130503.html. On 11 April 2016, the Democratic Republic of Timor-Leste initiated, for the first time under the UNCLOS, the conciliation against Australia pursuant to Article 298 and Annex V of the Convention. On 19 September 2016, the Conciliation Commission unanimously decided that it is competent with respect to the compulsory conciliation of the matters set out in Timor-Leste’s Notification Instituting Conciliation under Section 2 of Annex V of UNCLOS of 11 April 2016. Decision on Australia’s Objections to Competence, para. 111, available at: http://www.pcacases.com/web/sendAttach/1921. 119 Gulf of Maine Case (note 45), 283, para. 69. 120 Entered into force 22 January 1999. UNTS volume number has not yet been determined for this record. The text in English was reproduced in Sun Pyo Kim, Maritime Delimitation and Interim Arrangements in North East Asia (2004), 327–338. 121 Lagoni (note 23), 364.

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‘jeopardize or hamper’, the phrase is not intended to preclude some activities by the States concerned within the disputed area, if those activities would not have the effect of prejudicing the final agreement.122 This point was confirmed by the Arbitral Tribunal in the Guyana/ Suriname Arbitration.123 Considering that provisional arrangements can be entered into before the relevant States commence negotiating the final delimitation agreement, this provision can even be said to facilitate the provisional utilization of the area to be delimited. 124 In practice, it is not infrequent that some States claim an EEZ under the condition that its 34 outer limits are determined on the basis of an agreement with States concerned pending such agreements or the outer limits is determined by reference to a median line. The claim of the EEZ will not, by itself, jeopardize or hamper the reaching of the final agreement. However, it is apparent that military activities in a disputing area may jeopardize or hamper the reaching of the final agreement.125 A contentious issue that arises in this context concerns the unilateral exploration and 35 exploitation of natural resources in disputed areas. A leading case on this matter is the Aegean Sea Continental Shelf case between Greece and Turkey.126 In August 1976, Turkish State Petroleum Company (TPAO) carried out seismic exploration of areas of the continental shelf of the Aegean claimed by Greece as appertaining to it.127 In response, Greece requested that the ICJ indicate a provisional measure to refrain from all exploration activity or any scientific research in disputed areas of the continental shelf.128 However, the ICJ declined the request by Greece for three reasons. First, the purpose of these explosions is to send sound waves through the seabed so as to obtain information regarding the geophysical structure of the earth beneath it. 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. Second, the continued seismic exploration activities undertaken by Turkey were of the transitory character, and did not involve the establishment of installations on or above the seabed of the continental shelf. Third, Turkey embarked upon no operations involving the actual appropriation or other use of the natural resources of the disputed areas of the continental shelf. 129 Thus, the Court, in its Order of 1976, found that the circumstances were not such as to require to indicate provisional measures.130 At the same time, it went to add that: ‘[N]either concessions unilaterally granted nor exploration activity unilaterally undertaken by either of the interested States with respect to the disputed areas can be creative of new rights or deprive the other State of any rights to which in law it may be entitled’.131

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 appear to imply that the seismic exploration of a transitory nature could not be considered as affecting Greece’s potential rights to the continental shelf. 132 This view was echoed by the Arbitral Tribunal in the 2007 Guyana/Suriname Arbitration. 36 By referring to the Order in the Aegean Sea Continental Shelf Case by the ICJ, 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 122

Nordquist/Nandan/Rosenne (note 6), 815. Guyana/Suriname Arbitration (note 88), 132 (para. 465). 124 Lagoni (note 23), 354. 125 Ibid., 365. 126 ICJ, Aegean Sea Continental Shelf Case (Greece v. Turkey), Interim Protection, Order of 11 September 1976, ICJ Reports (1976), 3. See also Tanaka on Art. 83 MN 18. 127 Aegean Sea Continental Shelf (note 126), 7 (para. 16). 128 Ibid., 4–5 (para. 2); ICJ, Aegean Sea Continental Shelf (Greece v. Turkey), Request for the Indication of Interim Measures of Protection Submitted by the Government of Greece of 10 August 1976, ICJ Reports 1976, 63, 66. 129 Aegean Sea Continental Shelf (note 126), 10 (para. 30). 130 Ibid., 14 (para. 46). 131 Ibid., 10 (para. 29). 132 Klein (note 111), 432. 123

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not, such as seismic exploration.133 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 jeopardise the reaching of a final agreement on delimitation’, whilst unilateral acts which do not cause a physical change to the marine environment would not have the effect of jeopardizing or hampering the reaching of a final agreement on the delimitation of the maritime boundary.134 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. This is due to the fact that these activities may jeopardize or hamper the reaching of a final delimitation agreement as a result of the perceived change to the status quo that they would engender. Indeed, such activities could be perceived to, or may genuinely, prejudice the position of the other party in the delimitation dispute, thereby both hampering and jeopardising the reaching of a final agreement.’ 135

Following the Tribunal’s view, it can be argued that unilateral activities which physically affect the marine environment are contrary to Art. 74 (3) since these acts may hamper or jeopardize the reaching of a final agreement,136 whilst seismic testing which does not cause a physical change to the marine environment should be permissible in disputed areas, 137 if there is no objection of the other party.138 37 Later, unilateral exploration and exploitation of natural resources in disputed areas was at issue in the 2015 Ghana/Coˆte d’Ivoire Case (provisional measures) before the Special Chamber of ITLOS.139 In this case, Coˆte d’Ivoire asked the Special Chamber to prescribe provisional measures that require Ghana to take all 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.140 On the one hand, the Special Chamber ruled that the ongoing exploration and exploitation activities conducted by Ghana in the disputed area would result in a modification of the physical characteristics of the continental shelf and that: ‘[T]here is a risk of irreparable prejudice where, in particular, activities result in significant and permanent modification of the physical character of the area in dispute and where such modification cannot be fully compensated by financial reparations’.141 On the other hand, the Special Chamber considered that ‘[T]he 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 resulting, in particular, from the deterioration of equipment’.142

Thus the Special Chamber declined to prescribe the provisional measure requested by Coˆ te d’Ivoire that required Ghana to suspend all ongoing oil exploration and exploitation operations in the disputed area, while it prescribed the provisional measure which requires Ghana to take all necessary steps to ensure that no new drilling either by Ghana or under its control takes 133

Guyana/Suriname Arbitration (note 88), 132–133 (paras. 467–469). Ibid., 132 (paras. 466–467). 135 Ibid.,137 (para. 480). 136 It may be relevant to recall that the Gulf of Maine dispute between Canada and the United States first developed in relation to the continental shelf as soon as exploration for hydrocarbon resources was begun on each side: Gulf of Maine Case (note 45), 279, para. 61. 137 Guyana/Suriname Arbitration (note 88), 137 (para. 481). 138 In the Guyana/Suriname Arbitration, seismic activities did not give rise to objections from either side: ibid. Where unilateral exploration of natural resources in disputed areas gave rise to objections for either party, it may be argued that the parties are required to make every effort to conclude provisional arrangements of a practical nature pending agreement on delimitation pursuant to Articles 74(3) and 83(3) UNCLOS. 139 ITLOS Special Chamber, Dispute Concerning Delimitation of the Maritime Boundary Between Ghana and Coˆte d’Ivoire in the Atlantic Ocean (Ghana/Coˆte d’Ivoire), Request for Provisional Measures, Order of 25 April 2015, available at: https://www.itlos.org/en/cases/list-of-cases/case-no-23/case-no-23-provisional-measures/. 140 Ibid., para. 25. 141 Ibid., para. 89. 142 Ibid., para. 99. 134

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place in the disputed area.143 The Ghana/Coˆte d’Ivoire Order may be taken to imply that in certain circumstances, unilateral drilling in disputed areas may be permissible before reaching a final agreement on maritime delimitations. Yet, the Special Chamber provides no further precision with regard to a serious danger to the marine environment resulting from the deterioration of equipment. In particular, it appears debatable whether the danger is imminent. Further, as the Special Chamber itself observed, any compensation awarded would never be able to restore the status quo ante in respect of the seabed and subsoil, 144 while financial loss can be compensated by financial reparations. Thus there appears to be some scope to reconsider the question whether marine pollution from the degradation of equipment and financial loss to Ghana could provide adequate reasons to decline the main request of Coˆ te d’Ivoire which required Ghana to cease ongoing oil exploitation in the disputed area. Moreover, it is undeniable that ongoing exploitation operations may entail the risk of achieving fait accompli. It seems debatable whether the provisional measures prescribed by the Special Chamber would be adequate to prevent a fait accompli in the Ghana/Coˆte d’Ivoire dispute.145 Furthermore, consideration must be given to access of information about the resources of the 38 disputed area. In the Ghana/Coˆte d’Ivoire Case, Coˆte d’Ivoire argued that: ‘The past and ongoing collection of information relating to the natural resources of the disputed area by Ghana and by private oil companies is a serious infringement of the disputed rights of Cote d’Ivoire’. 146 In this regard, the Special Chamber of ITLOS, in its Order of 2015, considered that the exclusive right to access to information about the resources of the continental shelf is plausibly among the rights of the coastal State over its continental shelf.147 In the view of the Special Chamber, ‘the acquisition and use of information about the resources of the disputed area would create a risk of irreversible prejudice to the rights of Coˆte d’Ivoire should the Special Chamber, in its decision on the merits, find that Coˆte d’Ivoire has rights in all or any part of the disputed area’.148

It thus prescribed the provisional measure which requires Ghana to ‘take all necessary steps to prevent information resulting from past, ongoing or future exploration activities conducted by Ghana, or with its authorization, in the disputed area that is not already in the public domain from being used in any way whatsoever to the detriment of Coˆte d’Ivoir’.149

Information of natural resources in a disputed area creates particular sensitivity with the sovereign rights of the coastal State over the EEZ. If credible date concerning natural resources is needed to reach the final agreement, concerted exploration would be desirable.

11. ‘without prejudice to the final delimitation’ Arrangements under Art. 74 (3) remain provisional and do not affect the final delimitation. 39 This seems to suggest that the final delimitation does not need to take into account either the provisional arrangement or any of the activities of the parties undertaken according to the arrangements.150

143 Ibid. (para. 108(1)(a)). In this regard, it is to be noted that exploration and exploitation operations of Ghana are carried out on the Ghana’s side of the equidistance line. 144 Ibid. (para. 90). 145 Yoshifumi Tanaka, Unilateral Exploration and Exploitation of Natural Resources in Disputed Areas: A Note on the Ghana/Coˆte d’Ivoire Order of 25 April 2015 before the Special Chamber of ITLOS, ODIL 46 (2015), 324–326. 146 Ghana/Co ˆ te d’Ivoire Case (note 140), para. 79. In this regard, Coˆte d’Ivoire has argued that: “[T]he petroleum companies operating in the dispute triangle are rapidly acquiring invaluable knowledge about the geophysical properties of the continental shelf.” Presentation of Mr Wood, Verbatim Record, ITLOS/PV.15/C23/ 1, 29 March 2015, p. 33. 147 Ghana/Co ˆ te d’Ivoire Case (note 140), para. 94. 148 Ibid., para. 95. 149 Ibid., para. 108(1)(a). 150 Lagoni (note 23), 359.

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12. ‘Where there is an agreement in force between the States concerned’ 40

Art. 74 (4) is lex specialis in relation to Art. 311.151 Whilst the meaning of this provision is clear, the existence of an agreement relating to a maritime boundary between States may be a matter of dispute. In the 1985 Guinea/Guinea-Bissau Arbitration, for instance, the question arose at to whether the Convention of 1886 established the maritime boundary between the two States in West Africa. In this case, the Court of Arbitration took the view that the 1886 Convention had not established a general maritime boundary.152 It thus drew the course of a single maritime boundary between the territorial sea, the continental shelf and the EEZ appertaining to each State, taking account of the length of the coastlines, the coastal configuration and orientation, and the existence of islands. In the Guinea-Bissau/Senegal Arbitration, the Arbitral Tribunal ruled that the exchange of letters on 26 April 1960 between France and Portugal established a maritime boundary for the territorial sea, the contiguous zone, and the continental shelf, even though the boundary did not comprise the EEZ since the concept of the EEZ was unknown at that time.153 In the 2007 Nicaragua/Honduras Case, Honduras claimed that the line of the 15th parallel constituted the maritime delimitation line on the basis of the uti possidetis juris principle referred to in the Ga´mez-Bonilla Treaty and the 1906 Award of the King of Spain. However, the ICJ concluded that the uti possidetis juris principle cannot be said to have provided a basis for a maritime delimitation along the 15th parallel.154 Although Honduras further argued that there was a ‘de facto boundary based on the tacit agreement of the Parties’ at the 15th parallel, the Court ruled that there was no tacit agreement in effect between the Parties establishing a legally binding maritime boundary. 155 The dictum of the Court in this regard deserves quoting: ‘The establishment of a permanent maritime boundary is a matter of grave importance and agreement is not easily to be presumed. […] Even if there had been a provisional line found convenient for a period of time, this is to be distinguished from an international boundary.’ 156

41

The existence of an agreed maritime boundary was also at issue in the Peru/Chile Case of 2014. Peru claimed that no agreed maritime boundary exists between the two countries and asked the Court to plot a boundary line using the equidistance method in order to achieve an equitable result.157 However, Chile contended that the respective maritime zone entitlements of Chile and Peru have been fully delimited by agreement and that those maritime zone entitlements are delimited by a boundary following the parallel of latitude passing through the most seaward boundary marker of the land boundary between Chile and Peru, known as Hito No. 1, having a latitude of 18 21’00” S under WGS 84 Datum.158 In this regard, the ICJ ruled that in light of the 1954 Special Maritime Frontier Zone Agreement, especially Art. 1 read with the preambular paragraphs, the two States acknowledged in a binding international agreement that a maritime boundary already exists; and that Agree151

Nordquist/Nandan/Rosenne (note 6), 815. Delimitation of the Maritime Boundary between Guinea and Guinea-Bissau (1985), RIAA XIX, 149, 181 (para. 84) and 196 (para. 130). 153 Case Concerning the Delimitation of Maritime Boundary between Guinea-Bissau and Senegal, 31 July 1989, RIAA XX, 119, 150, para. 88. Yet Guinea-Bissau disputed the validity of the award of 31 July 1989. It thus instituted proceedings against Senegal before the ICJ and requested the Court to declare that the award is null and void. The Court rejected the submission of the Guinea-Bissau that Arbitral Award of 31 July 1989 is absolutely null and void. ICJ, Case Concerning the Arbitral Award of 31 July 1986 (Guinea-Bissau v. Senegal), Judgment of 12 November 1991, ICJ Reports (1991), 53, 75 (para. 69). 154 Nicaragua/Honduras Case (note 85), 727–729 (paras. 229–236). For the application of the principle of uti possidetis juris to maritime boundaries, see Yoshifumi Tanaka, Reflections on Maritime Delimitation in the Nicaragua/Honduras Case, Zao¨RV 68 (2008), 907–909; Cottier (note 6), 479–482. 155 Nicaragua/Honduras Case (note 85), 736–737 (paras. 257–258). 156 Ibid., 735 (para. 253). 157 ICJ, Maritime Dispute (Peru v. Chile), Judgment of 24 January 2014, ICJ Reports (2014), 16 (para. 22). 158 Ibid., 12 (para. 14). 152

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ment cemented the tacit agreement between the parties. 159 Yet, the 1954 Special Maritime Frontier Zone Agreement gives no indication of the nature of the maritime boundary, nor does it indicate its extent. In light of the 1947 Proclamations and the 1952 Santiago Declaration, the Count concluded that the boundary is an all-purpose one.160 Further, on the basis of an assessment of the entirety of the relevant evidence presented to it, the Court held that the agreed maritime boundary between the Parties extended to a distance of 80 nautical miles along the parallel from its starting-point.161

Article 75 Charts and lists of geographical coordinates 1. Subject to this Part, the outer limit lines of the exclusive economic zone and the lines of delimitation drawn in accordance with article 74 shall be shown on charts of a scale or scales adequate for ascertaining their position. Where appropriate, lists of geographical coordinates of points, specifying the geodetic datum, may be substituted for such outer limit lines or lines of delimitation. 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 United Nations. Bibliography: Shigeru Oda, A Commentary on the UN Convention on the Law of the Sea (in Japanese), vol. I (1985); Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); George K. Walker (ed.), Definitions for the Law of the Sea: Terms Not Defined by the 1982 Convention (2012) Documents: GA, Oceans and the Law of the Sea: Report of the Secretary General, UN Doc. A/RES/68/70 (2013); UN DOALOS, The Law of the Sea: Baselines: An Examination of the relevant Provisions of the United Nations Convention on the Law of the Sea (1989) Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 1. ‘Subject to this Part’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 2. ‘charts of a scale or scales adequate for ascertaining their position’ . . . . . . . . . . . . . 6 3. ‘lists of geographical co-ordinates of points’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 4. ‘the geodetic datum’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 5. ‘due publicity’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 6. ‘shall deposit a copy of each such chart or list with the Secretary-General of the United Nations’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

I. Purpose and Function Since human activities in the oceans are regulated according to multiple jurisdictional 1 zones, vessels and aircrafts cannot safely carry out the conduct of their activities, without knowing the spatial limits of jurisdictional zones of the coastal State. Hence showing the outer limits of each jurisdictional zone on charts, including the outer limit of the EEZ, is of particular importance to identify the user’s position at sea. Art. 75 is intended to make the information on the outer limits and delimitation lines of the EEZ available to the 159

Ibid., 38–39 (paras. 90–91). Ibid., 41(para. 102). 161 Ibid., 58 (para. 151). However, six judges voted against the majority opinion on this matter: ibid., 72 (para. 198 (3)). 160

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international community. Specifically Art. 74 provides a dual obligation of the coastal State: (i) the obligation to show the outer limits of the EEZ and the delimitation lines of the EEZ on charts or list their geographical coordinates and (ii) the obligation regarding due publicity. Art. 75 is nearly identical to Art. 84.1 A similar obligation concerning the baselines is provided in Art. 16 (1).2

II. Historical Background 2

The 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone (CTSCZ) contained an obligation to mark the delimitation line of the territorial sea on large-scale charts officially recognized by the coastal State.3 However, the obligation under Art. 75 UNCLOS is more specific than that of the CTSCZ. In fact, unlike Art. 12 (2) CTSCZ, Art. 75 refers to lists of geographical co-ordinates of points and the geodetic datum. It also contains obligations of due publicity and deposit with the UN Secretary-General. The substance of what became Art. 75 appeared in Art. 61 (5) of the Informal Single Negotiating Text (ISNT) of 1975:4 ‘In delimiting the boundaries of the exclusive economic zone, any lines which are drawn in accordance with the provisions of this article should be defined with reference to charts and geographical features as they exist at a particular date, and reference should be made to fixed permanent identifiable points on the land.’

3

In the Revised Single Negotiating Text (RSNT) of 1976, however, a new provision was inserted on the basis of a Canadian proposal. The new provision, Art. 63, read: 5 ‘1. Subject to this Chapter, the outer limit lines of the exclusive economic zone and the lines of delimitation drawn in accordance with article 62 shall be shown on charts of a scale or scales adequate for determining them. Where appropriate, lists of geographical co-ordinates of points, specifying the geodetic datum, may be substituted for such outer limit lines or lines of delimitation. 2. The coastal State shall give due publicity to such charts or lists of geographical co-ordinates and shall deposit a copy of each such chart or list with the Secretary-General of the United Nations.’

The reference to ‘lists of geographical co-ordinates points’ merits attention, since geographical coordinates would provide greater precision to the depiction of the outer limits of the EEZ.6 4 Later, Art. 63 of the RSNT was incorporated in Art. 75 of the Informal Composite Negotiating Text (ICNT), Revision I, of 1979 as follows:7 ‘1. Subject to this Part, the outer limit lines of the exclusive economic zone and the lines of delimitation drawn in accordance with article 74 shall be shown on charts of a scale or scales adequate for determining them. Where appropriate, lists of geographical co-ordinates of points, specifying the geodetic datum, may be substituted for such outer limit lines or lines, of delimitation. 2. The coastal State shall give due publicity to such charts or lists of geographical co-ordinates and shall deposit a copy of each such chart or list with the Secretary-General of the United Nations.’

The phrase ‘Subject to this Chapter’ included in Art. 63 of the RSNT was replaced by the phrase ‘Subject to this Part’ in Art. 75. The text of Art. 75 of ICNT, Revision 1, remained 1

Thus, see also Tanaka on Art. 84. See Symmons Art. 16. 3 See Art. 12 (2) CTSCZ. See also Art. 4 (6) CTSCZ. 4 UNCLOS III, Informal Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/PART II (1975), OR IV, 152, 162. For a legislative history of Art. 75, see also Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 818 et seq. 5 UNCLOS III, Revised Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/REV.1/PART II (1976), OR V, 164. Art. 62 related to the delimitation of the EEZ. 6 Nordquist/Nandan/Rosenne (note 4), 819–820. 7 UNCLOS III, Informal Composite Negotiating Text (Revision 1), UN Doc. A/CONF.62/WP.10/REV.1 (1979), OR VIII, 52. Art. 74 provided rules of the delimitation of the EEZ. 2

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unchanged in ICNT, Revision 3.8 In the Draft Convention on the Law of the Sea (1981), however, the phrase ‘determining them’ in Art. 75 (1) was replaced by the phrase ‘ascertaining their position’. The text of Art. 75 of the Draft Convention finally became Art. 75. Nearly identical obligations are provided in Art. 84. Unlike Art. 84 (2), however, Art. 75 (2) contains no reference to the Secretary-General of the Authority.

III. Elements 1. ‘Subject to this Part’ ‘[T]his Part’ means Part V governing the EEZ. Although a similar obligation concerning 5 charts and list of geographical co-ordinates is provided in Art. 16 (1), it contains no reference to ‘subject to this Part’.9

2. ‘charts of a scale or scales adequate for ascertaining their position’ Art. 75 (1) obliges the coastal State to show the outer limit lines of the EEZ and the 6 delimitation lines of the EEZ on charts of a scale or scales adequate for ascertaining their position. The same or a similar obligation is provided in Art. 16 (1), 47 (8), and 84 (1). Art. 74 referred to in Art. 75 (1) provides rules concerning the delimitation of the EEZ. 10 According to United Nations Office for Ocean Affairs and the Law of the Sea (UN 7 DOALOS), the scale of a chart is ‘an expression of the relationship between a distance measured on the earth’s surface and the length that represents it on the chart’. 11 Since Art. 75 (1) offers scant explanation on the scale of a chart, the coastal State can be said to retain discretion on this matter. The scale of the charts should be adequate for the user to determine them to the same degree of accuracy as the coastal State intends. 12 In practice, this is particularly important for the purposes of, inter alia, fishing activities and sea communication.

3. ‘lists of geographical co-ordinates of points’ Under Art. 75 (1), ‘where appropriate’, the coastal State is allowed to provide lists of 8 geographical co-ordinates of points. In this case, the geodetic datum must be specified. Although the Convention contains no definition of ‘geographical co-ordinate’, it can be defined as ‘angular parameters of latitude and longitude that define the position of a point on the Earth’s surface and which, in conjunction with a height, similarly define positions vertically above or below such a point’.13 By referring to geographic co-ordinates, it becomes possible to define an outer limit of the EEZ with far greater precision. A list of co-ordinates and charts may both be used at the same time. In this case, there will be a need to make clear which is the definitive document and which merely illustrative.14 While Art. 16 (1) and 47 (8) use the term ‘alternatively’, Art. 75 (1), along with Art. 84 (1), uses the phrase ‘where appropriate’. 15 There 8 UNCLOS III, Draft Convention on the Law of the Sea (Informal Text), UN Doc. A/CONF.62/WP.10/REV.3 (1980), OR VIII, 34 (Art. 84). 9 Shigeru Oda, A Commentary on the UN Convention on the Law of the Sea (in Japanese), vol. I (1985), 244. 10 See generally Tanaka on Art. 74. 11 UN DOALOS, The Law of the Sea: Baselines: An Examination of the relevant Provisions of the United Nations Convention on the Law of the Sea (1989), 5. 12 UNCLOS III, Study on the Future Functions of the Secretary-General under the Draft Convention and on the Needs of Countries, Especially Developing Countries, for Information, Advice and Assistance under the New Legal Regime, UN Doc. A/CONF.62./L.76 (1981), OR XV, 153, 170. See also Nordquist/Nandan/Rosenne (note 4), 819. 13 George K. Walker (ed.), Definitions for the Law of the Sea: Terms Not Defined by the 1982 Convention (2012), 213. 14 Study on the Future Functions of the Secretary-General (note 12), 179. 15 Nordquist/Nandan/Rosenne (note 4), 820 (footnote 3).

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appears to be few practical difference of legal effect arising from the difference of the language. Under Art. 75 (1), States can deposit the lists of geographical co-ordinates if they wish to do so.

4. ‘the geodetic datum’ 9

According to UN DOALOS, a datum is the basis of a co-ordinate system and is also known as the horizontal datum or horizontal reference datum. It is associated with a specific reference ellipsoid which best fits the surface (geoid) of the area of interest. It is important to specify the geodetic datum that has been used when a position is defined since geographical co-ordinates differ according to geodetic datums.16 UN DOALOS encouraged States Parties to the UNCLOS to provide all the necessary information for conversion of the submitted geographic coordinates from the original datum into the World Geodetic System 84 (WGS 84), a geodetic datum system that is used by the UN DOALOS for its internal data storage. 17

5. ‘due publicity’ 10

UN DOALOS defines the term ‘due publicity’ as: ‘Notification of a given action for general information through appropriate authorities within a reasonable amount of time in a suitable manner’.18 Under the UNCLOS, States are obliged to give due publicity to charts or lists of geographical coordinates which indicate the position of baselines, limits and boundaries in Arts. 16 (2), 47 (9), 76 (9) and 84 (2). The obligations to give due publicity are also provided in Arts. 21 (3), 22 (4), 41 (2) and (6), 42 (3), 53 (7) and (10), and 211 (3). 19

6. ‘shall deposit a copy of each such chart or list with the Secretary-General of the United Nations’ 11

Under Art. 75 (2), the coastal State is under the obligation to deposit a copy of each chart that shows the outer limit lines of the EEZ and the delimitation lines of EEZ or list of geographical coordinates with the UN Secretary-General. According to UN DOALOS, deposit is addressed to the UN Secretary-General in the form of a Note Verbale or a letter by the Permanent Representative to the United Nations or other person duly authorised to do so. The instrument should be accompanied by the relevant information, clearly state the intention to deposit and specify the relevant UNCLOS articles. The mere adoption of legislation or the conclusion of a maritime boundary treaty registered with the Secretariat cannot be interpreted as an act of deposit with the UN Secretary-General under the UNCLOS, even if they contain charts or lists of coordinates.20 The UN General Assembly Resolution 68/70 of 9 December 2013 called upon States Parties to the Convention that have not yet done so to deposit with the Secretary-General charts or lists of geographical coordinates, as provided for in the Convention, preferably using the generally accepted and most recent geodetic datums. 21 According to UN DOALOS, some 71 States deposited charts and/or lists of geographical coordinates. Among them, charts and/or lists of geographical coordinates deposited by some 38 States are related to Art. 75 (2). 22 16

UN DOALOS Baselines (note 11), 55. UN DOALOS, Deposit and Due Publicity-Background Information, para. 4, available at: http://www.un.org/ Depts/los/LEGISLATIONANDTREATIES/backgroud_deposit.htm. 18 UN DOALOS Baselines (note 11), 54. 19 Nordquist/Nandan/Rosenne (note 4), 820; Walker (note 13), 177–178. The list of States which deposited charts and submitted information in compliance with due publicity obligations is available at: http://www.un.org/ Depts/los/LEGISLATIONANDTREATIES/index.htm. 20 UN DOALOS (note 11), para. 2. 21 GA, Oceans and the Law of the Sea: Report of the Secretary General, UN Doc. A/RES/68/70 (2013), para. 6. Information on States which deposited charts and lists of geographical coordinates is available at: http:// www.un.org/Depts/los/LEGISLATIONANDTREATIES/depositpublicity.htm. 22 The relevant data is available at: http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/depositpublicity.htm. 17

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PART VI CONTINENTAL SHELF Article 76 Definition of the continental shelf 1. 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. 2. The continental shelf of a coastal State shall not extend beyond the limits provided for in paragraphs 4 to 6. 3. The continental margin comprises the submerged prolongation of the land mass of the coastal State, and consists of the seabed and subsoil of the shelf, the slope and the rise. It does not include the deep ocean floor with its oceanic ridges or the subsoil thereof. 4. (a) For the purposes of this Convention, the coastal State shall establish the outer edge of the continental margin wherever the margin extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, by either: (i) a line delineated in accordance with paragraph 7 by reference to the outermost 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; or (ii) a line delineated in accordance with paragraph 7 by reference to fixed points not more than 60 nautical miles from the foot of the continental slope. (b) 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. 5. The fixed points comprising the line of the outer limits of the continental shelf on the seabed, drawn in accordance with paragraph 4 (a)(i) and (ii), either 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 isobath, which is a line connecting the depth of 2,500 metres. 6. Notwithstanding the provisions of paragraph 5, 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. This paragraph does not apply to submarine elevations that are natural components of the continental margin, such as its plateaux, rises, caps, banks and spurs. 7. The coastal State shall delineate the outer limits of its continental shelf, where that shelf extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, by straight lines not exceeding 60 nautical miles in length, connecting fixed points, defined by coordinates of latitude and longitude. 8. Information on the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured shall be submitted by the coastal State to the Commission on the Limits of the Continental Shelf set up under Annex II on the basis of equitable geographical representation. The Commission shall make recommendations to coastal States on matters related to the establishment of the outer limits of their continental shelf. The limits of the shelf established by a coastal State on the basis of these recommendations shall be final and binding. Parson

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9. The coastal State shall deposit with the Secretary-General of the United Nations charts and relevant information, including geodetic data, permanently describing the outer limits of its continental shelf. The Secretary-General shall give due publicity thereto. 10. The provisions of this article are without prejudice to the question of delimitation of the continental shelf between States with opposite or adjacent coasts. Bibliography: Harald Brekke/Philip Symonds, Submarine Ridges and Elevations of Article 76 in Light of Published Summaries of Recommendation of the Commission on the Limits of the Continental Shelf, ODIL 42 (2015), 289–306; Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); Myron H. Nordquist/ Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); H. Hedberg, Relation of Political Boundaries on the Ocean Floor of the Continental Margin, Virginia Journal of International Law 17 (1976), 57–75; Hyun Jung Kim, Natural Prolongation: A Living Myth in the Regime of the Continental Shelf, ODIL 45 (2014), 374–388; Moira L. McConnell, The Law Applicable on the Continental Shelf, in: Karen Brown/David B. Snyder (eds.), General Reports of the XVIIIth Congress of the International Academy of Comparative Law (2012), 453–460; Donald R. Rothwell/Tim Stephens, The International Law of the Sea (2010); Øystein Jensen, The Commission on the Limits of the Continental Shelf: Law and Legitimacy (2014); Myron H. Nordquist/John Norton Moore/Tomas Heidar (eds.), Legal and Scientific Aspects of Continental Shelf Limits (2004); J. Ashley Roach/Robert W. Smith (eds.), Excessive Maritime Claims (3rd edn. 2012) Documents: GA, Question of the Reservation Exclusively for Peaceful Purposes of the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, underlying the High Seas beyond the Limits of Present National Jurisdiction, and the Use of Their Resources in The Interests of Mankind, GA Res. 2574(XXIV)A-D of 15 December 1969; IHO, Hydrographic Dictionary, Special Pub 32, Part 1, vol. 1 (1994); ILA, Legal Issues of the Outer Continental Shelf: Report of the Berlin Conference (2004); ILA, Legal Issues of the Outer Continental Shelf: Report of the Toronto Conference (2006); CLCS, Scientific and Technical Guidelines of the Commission on the Limits of the Continental Shelf, UN Doc. CLCS/11 (1999); CLCS, Rules and Procedure of the Commission on the Limits of the Continental Shelf, UN Doc. CLCS/40/Rev.1 (2008) Cases: ICJ, Case Concerning the Continental Shelf (Libyan Arab Jamahiriya v. Malta), Judgment of 3 June 1985, ICJ Reports (1985), 13; ICJ, Case Concerning the Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), Judgment of 24 February 1982, ICJ Reports (1982), 18; ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Netherlands; Federal Republic of Germany v. Denmark), Judgment of 20 February 1969, ICJ Reports (1969), 3; ITLOS, Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh v. Myanmar), Judgment of 14 March 2012, available at: https://www.itlos.org/ fileadmin/itlos/documents/cases/case_no_16/C16_Judgment_14_03_2012_rev.pdf Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘The continental shelf of a coastal State comprises […]’ . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘The continental shelf of a coastal State shall not extend beyond the limits provided for in paragraphs 4 to 6’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘The continental margin comprises […]’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. ‘the coastal State shall establish the outer edge of the continental margin […]’ 5. ‘the foot of the continental slope shall be determined as the point of maximum change in the gradient at its base’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. ‘The fixed points comprising the line of the outer limits of the continental shelf […]’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. ‘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. […]’ . . 8. ‘The coastal State shall delineate the outer limits of its continental shelf […]’ . 9. ‘the Commission on the Limits of the Continental Shelf’ . . . . . . . . . . . . . . . . . . . . . . . 10. ‘charts and relevant information’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11. ‘The provisions of this article are without prejudice to the question of delimitation of the continental shelf between States with opposite or adjacent coasts’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Art. 76

l. Purpose and Function Art. 76 provides the methodology and describes the process by which a coastal State may identify the precise locations for the points which define the outer limits of its continental shelf. Outside of these limits, the area beyond national jurisdiction (the Area) falls under the remit of the International Seabed Authority. Art. 76 is one of the articles in the Convention for which a significant amount of technical understanding is required for its successful implementation. In simple terms, this process requires the solution of one or both of two geomorphological and geodetic formulae, each of which require geoscientific information, measurement and analysis. Safeguards against the outcome of either of the formulae resulting in unduly excessive areas of entitlement are included in Art. 76 in the form of two constraints, which are also of geomorphological and geodetic construction. According to Art. 76, the continental shelf of a coastal State extends either to 200 NM from the baselines from which the territorial sea is measured, or out to a limit defined by the technical formulae laid out in Art. 76. The rights and responsibilities of the coastal State for the continental shelf are detailed elsewhere in Part VI of the Convention – notably Art. 77. 1 Art. 76 comprises ten paragraphs, the first three of which provide a general introduction to terms and concepts used, and outline the principles on which the definition is based. The following four paragraphs describe the technical criteria for construction of the outer edge of the continental margin, and from this, the outer limit of the juridical continental shelf. The final three paragraphs summarise the procedures for submission of information to the UN, determine the legal status of the definition and confirm that the provisions of the article are without prejudice to delimitation between States.2 Art. 76 operates in association with Annex II of the Convention, which describes the establishment, remit and function of the Commission on the Limits of the Continental Shelf (hereafter the Commission) who are required to examine coastal States’ submissions and issue recommendations accordingly, from which the State can establish binding limits. The Commission has drafted a number of documents to describe their activities and to assist coastal States in their interpretation of Art. 76, particularly paragraphs 4 to 7, which contain its most the technical components.3

1

2

3

4

II. Historical Background 1945 saw the first significant steps in the establishment of the regime of the legal 5 continental shelf. On the 28th September of that year, President HARRY TRUMAN of the USA authorised a proclamation regarding the continental shelf and its natural resources. In part this stated:

1

See further Maggio on Art. 77 MN. The 1993 Volume II of the Virginia Commentary Series (Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993)) provides an invaluable resource on which scholars of Art. 76 and its derivation have based their research for more than two decades. It encapsulates an enormous range of historical and contextual information relevant to the development of the text of Art. 76 and for that reason, much of that background is not repeated here. The current text will not only serve as an update on that summary, but in addition it will provide a comprehensive analysis of activities related to the implementation of Art. 76 to date. 3 CLCS, Scientific and Technical Guidelines of the Commission on the Limits of the Continental Shelf, UN Doc. CLCS/11 (1999), available at: http://www.un.org/depts/los/clcs_new/commission_documents.htm#Guidelines; CLCS, Rules and Procedure of the Commission on the Limits of the Continental Shelf, UN Doc. CLCS/40/ Rev.1 (2008), available at: http://www.un.org/depts/los/clcs_new/commission_documents.htm#Rules%20of%20Procedure. 2

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Part VI. Continental shelf

‘The Government of the United States regards the natural resources of the subsoil and the seabed 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.’ 4

The criterion to delineate the limit of the continental shelf was one of water depth, whereby seafloor deeper than 100 fathoms (600 feet) was excluded. Subsequent to this statement, a number of alternative criteria were debated, including a limit based on the exploitability of resource – although recognised as a limit that would vary dependent on a coastal State’s capability to conduct exploitation, this proposal was considered by many to be inequitable. 7 The 1958 Convention on the Continental Shelf (CSC), which arose from the first UN Conference on the Law of the Sea, was signed on the 29th April of that year. The conference addressed seven topics: the regime governing the superjacent waters and airspace; laying or maintenance of submarine cables or pipelines; the regime governing navigation, fishing, scientific research and the coastal State’s competence in these areas; delimitation; tunneling, but significantly for the development of the continental shelf regime, contained the following definition, stating that the term referred: 6

‘to 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 water admits of the exploitation of the natural resources of the said areas; and (b) to the seabed and subsoil of similar submarine areas adjacent to the coasts of islands’.5

8

Over subsequent years, it was recognised that both the 200 metre depth criteria and the exploitability thresholds were impractical for different reasons, and the seminal 1969 judgment of the International Court of Justice (ICJ) in the North Sea Continental Shelf Cases indicated further difficulties in the definition of the continental shelf. 6 Paragraph 43 of the judgment included the following statements: ‘More fundamental was the concept of the continental shelf as being a natural prolongation of the land domain […]. Submarine areas did not appertain to the coastal State merely because they were near it, nor did their appurtenance depend on any certainty of delimitation as to their boundaries. What conferred the ipso jure title was the fact that the submarine areas concerned might be deemed to be part of its territory in the sense that they were a prolongation of its land territory under the sea.’

The notion of natural prolongation, or continuation of the land territory into the submarine environment was in this early case considered a significant element in the establishment of entitlement to such an extension to territory of a coastal State. 9 On 15 December 1969, the UN General Assembly recognised these difficulties, stating that the: ‘1958 Convention does not define with sufficient precision the limits of the area over which as coastal State exercises sovereign rights for the purposes of exploration and exploitation of the natural resources, and that customary international law on the subject is inconclusive’. 7

During the several sessions of the ensuing UNCLOS III, starting in 1973, issues relevant to the definition of the continental shelf were debated in Plenary and the Second Committee. Topics ranged from whether distance was a useful criteria, to whether natural prolongation was more appropriate. 11 Discussions proceeded until the Ninth Session, and these results and the work of the Chairman of the Negotiating Group 6 and his compromise suggestions led to a formal text 10

4 US Presidential Proclamation 2667, Policy of the United States With Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf of 28 September 1945. 5 Art. 1 CSC. 6 ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Netherlands; Federal Republic of Germany v. Denmark), Judgment of 20 February 1969, ICJ Reports (1969), 3 et seq. 7 GA, Question of the Reservation Exclusively for Peaceful Purposes of the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, underlying the High Seas beyond the Limits of Present National Jurisdiction, and the Use of Their Resources in The Interests of Mankind, GA Res. 2574(XXIV)A-D of 15 December 1969.

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being accepted as Art. 76, along with the development of a process for dealing with Sri Lanka and its special case, raised by Sri Lanka at an earlier stage at the Conference (1980). Proposals made and considered during the drafting of the definition of the continental 12 shelf and which have become the core elements in the final text of Art. 76 are summarised below. They have been incorporated into the text at different stages in the drafting process, and represent a combination of key elements and procedures by which a coastal State defines its continental shelf. Their precise text formulation may have been modified in detail since their introduction, but they represent the foundation of the final text of the article. ‘Natural prolongation’: China proposed the use of the term ‘natural prolongation’ to 13 define the continental shelf at the Sea-Bed Committee in 1973. Their original text read: ‘By virtue of the principle that the continental shelf is a natural prolongation of the continental territory, a coastal State may reasonably define, according to specific geographical conditions, the limits of the continental shelf under its exclusive economic zone beyond its territorial sea or economic zone. The maximum limits of such continental shelf may be determined among States through consultations.’8

‘The foot of the continental slope’: The construction of the outer limit of the continental shelf at 60 NM from the foot of the slope, and the demarcation of the outer limit of the continental shelf by points no more than 60 NM apart were two significant parts of the proposal made by the United States 1975.9 The formulation of the proposal also stated that the margin should not include the ‘rocks and sediments’ of the deep ocean floor. Several of the most significant proposals to shape key components of the developing article arrived in the proposal made by the Irish delegation at the Fourth Session.10 The Irish text provided the definition of the foot of the slope as ‘the point of maximum change of gradient at its base’, and included the option of its identification based on ‘evidence to the contrary’. The proposal also described the delineation of the outer limit of the continental shelf by means of identifying points where the ‘thickness of the sedimentary rock was 1 % of the distance to the foot of the slope’. Finally, and very significantly, the Irish text elaborated on the different constructions of the outer edge of the continental margin and the continental shelf. By the Eighth Session of the Third Conference in 1979, a proposal was made by the Russian delegation to limit the extent of a continental shelf to avoid extreme claims by coastal States.11 The implication was that while the continental margin, linked to the natural prolongation, had a potentially broad extent, the continental shelf should not extend beyond a line marked by 100 NM beyond the 2500 m isobath. At the resumed Eighth Session, the Russian delegation added a further modification of the constraint to the breadth of the continental shelf, proposing that ‘the limit of the shelf in areas containing submerged oceanic ridges shall not extend farther than the …350 mile distance’. This text was developed in the context of addressing submarine ridges at the Conference and the Chairman of Negotiating Group finally proposed a complementary text. At the same resumed Eighth Session, Sri Lanka pursued an exceptional method of delimitation applicable to certain geological and geomorphological conditions which found significant support for other delegation. The proposal was eventually included in Annex II of the Final Act of the Conference. A combination of proposal text during the Ninth Session (1980) from the wide-margin States, modified by the Australian delegation, sought to further clarify those seafloor features which constituted part of the continental margin, and those that did not. Submarine elevations, such as plateaux, rises, banks and spurs were accepted, but oceanic ridges were not. 8 Sea-Bed Committee, China: Working Paper on the Sea Area within the Limits of National Jurisdiction, UN Doc. A/AC.138/SC.II/L.34 (1973), cited in: GAOR 28th Sess. Suppl. 21 (A/9021-I), 64. 9 UNCLOS III, United States: The Continental Shelf (1975, mimeo.), reproduced in: Renate Platzo ¨ der, Third United Nations Conference on the Law of the Sea: Documents, vol. XI (1987), 500. 10 Reproduced in: Nordquist/Nandan/Rosenne (note 2), 852. 11 UNCLOS III, USSR: Informal Proposal, UN Doc. NG8/10 (1979, mimeo.), reproduced in Renate Platzo ¨ der, Third United Nations Conference on the Law of the Sea: Documents, vol. IX (1986), 377.

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15

16

17

18

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Part VI. Continental shelf

III. Elements 1. ‘The continental shelf of a coastal State comprises […]’ Art. 76 (1) provides two options by which a coastal State can delineate its continental shelf. One is simply a measurement out to 200 NM from its baselines as defined in accordance with Part 1 of the Convention,12 and the other requires an identification of the outer edge of the continental margin, which exists throughout the natural prolongation of the land territory. 21 Either of these constructions serve to mark the limit of the continental shelf, but the second is more complex in that, rather than requiring a straightforward geodetic measurement from baselines, it involves the implementation of a combination of criteria elaborated on in Art. 76 (4) to (7). The juridical delineation of the various subdivisions of the continental margin – the shelf, slope and rise, as mentioned in Art. 76 (1) – appear again in Art. 76 (3), although these descriptions are not intended to be directly compatible with any geoscientific understanding of the same terms. This presents at the outset a challenge to the Commission in its examination of State’s submissions, being as it is made up wholly of technical practitioners. Nonetheless, a coastal State is required to implement these legal instructions, and generate a sustainable and fully supported construction in accordance with criteria laid out in Art. 76. 22 There are many terms within Art. 76 which are less clear than practitioners would like. Art. 76 (1), for example, refers to ‘natural prolongation’, which has been identified above as without a precise definition. The International Law Association (ILA) summarised in their 2004 report on issues on the continental shelf: 20

‘The outer limits of the continental shelf established in accordance with article 76(4) to (9) need not coincide exactly with the natural prolongation of the land territory of the coastal State to the outer edge of the continental margin, to which a reference is made 76(1). The application of the former provisions may result in the inclusion of certain areas that are located seaward of this natural prolongation in the legal continental shelf. These rules can also result in the exclusion from the legal continental shelf of certain areas that are not a part of this natural prolongation.’ 13

The ILA further notes in its 2006 report ‘Article 76(1) of the Convention refers to the natural prolongation of the land territory to define the continental shelf. To establish which areas are comprised by the reference to natural prolongation, the starting point is the land territory. The connection between the land territory and the natural prolongation can be geomorphological and/or geological. One of the implications of the definition of the continental shelf by reference to natural prolongation is that the continental shelf may consist of areas that are either continental and/or oceanic in origin’.14

While the terms natural prolongation and submerged prolongation are not defined in the Convention and are not in common use other than in a general sense, further reference has been made by courts to the concept of natural prolongation in delimitation of the continental shelf beyond 200 NM, most notably in the International Tribunal for the Law of the Sea (ITLOS) judgment on the continental shelf in the Bay of Bengal,15 which recalled the words of the International Court of Justice (ICJ) from the 1969 North Sea Continental Shelf Cases. 24 The ICJ stated in the North Sea Continental Shelf Cases that the continental shelf of a costal State is: 23

12 Art. 5 states ‘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 charts officially recognised by the coastal State’. 13 ILA, Legal Issues of the Outer Continental Shelf: Report of the Berlin Conference (2004), 32. 14 ILA, Legal Issues of the Outer Continental Shelf: Report of the Toronto Conference (2006), 28. 15 ITLOS, Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh v. Myanmar), Judgment of 14 March 2012, available at: https://www.itlos.org/ fileadmin/itlos/documents/cases/case_no_16/C16_Judgment_14_03_2012_rev.pdf.

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‘a natural prolongation of its land territory into and under the sea exist ipso facto and ab initio, by virtue of its sovereignty over the land, and as an extension of it in an exercise of sovereign rights for the purpose of exploring the seabed and exploiting its natural resources. In short, there is here an inherent right. In order to exercise it, no special legal process has to be gone through, nor have any special legal acts to be performed. Its existence can be declared (and many States have done this) but does not need to be constituted.’16

The use of natural prolongation in the text of the ICJ’s judgment provided no information as to how it should be defined, but led to a consistent view of all the parties that the principal of natural prolongation was important to consider. There were great differences, however, as to how States interpreted the term natural prolongation or how this property – a natural continuation of the land mass – may be manifested. Differences of opinion have been rehearsed since, during debate on the significance of this characteristic of a continental margin. Recent summaries of the differing views on the meaning and significance of natural prolongation are less than powerful endorsements of the concept.17 This rather negative approach seems in part due to the difficulties that commentators have in agreeing on any precision to the definition of the term. Geomorphological and geological attributes to landmasses, whether subaerial or submarine, are inevitably complex technical matters and arguments based on these lack the precision required in the establishment of reasonable proof. Natural prolongation as a contributing element in the determination of entitlement has largely been avoided by the Courts, and more notably, by the Commission charged with evaluating the extent of States’ continental shelf beyond 200 NM. The significance of natural prolongation in the examination of submissions according to 25 Art. 76 has, nonetheless, been expressed by the Commission. Prior to 2010, the Commission had not discussed to any extent the concept or significance of natural prolongation, referring to it in its Scientific and Technical Guidelines under a new initiative, which they called the ‘test of appurtenance’. Furthermore, the term ‘natural prolongation’ rarely occurs in the summaries of their recommendations to coastal States regarding their submissions in accordance with Art. 76. It was not until the Commission’s recommendations in respect of the UK submission under Art. 76 for Ascension Island in 2010, that it elaborated on its understanding of natural prolongation, providing a statement of how they understood the term ‘natural prolongation’.18 The Commission made their observations as follows: ‘Regarding the concepts of natural prolongation, submerged prolongation and the delineation of the outer edge of the continental margin of a coastal State, the Subcommission has applied the following principles and considerations: i. The “natural prolongation of [the] land territory” is based on the physical extent of the continental margin to its “outer edge” (Article 76.1) i. e. “the submerged prolongation of the land mass…” (Article 76.3); ii. The outer edge of the continental margin in the sense of Article 76.3 is established by applying the provisions of Article 76.4, through measurements from the foot of the continental slope;’

In a judicial context, during the pleadings of the parties in the ITLOS Bay of Bengal Case, 26 Bangladesh and Myanmar expressed very clear differences between the way they interpreted natural prolongation.19 The Tribunal in its judgment, noted: ‘For these reasons, the Tribunal is of the view that the reference to natural prolongation in article 76, paragraph 1, of the Convention, should be understood in light of the subsequent provisions of the article defining the continental shelf and the continental margin. Entitlement to a continental shelf beyond 200 nm should thus be determined by reference to the outer edge of the continental margin, to be ascertained in accordance with article 76, paragraph 4. To interpret otherwise is warranted neither by the text of article 76 nor by its object and purpose’.20 16 ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Netherlands; Federal Republic of Germany v. Denmark), Judgment of 20 February 1969, ICJ Reports (1969), 3, 22 (para. 19, emphasis added). 17 Hyun Jung Kim, Natural Prolongation: A Living Myth in the Regime of the Continental Shelf, ODIL 45 (2014), 374–388. 18 http://www.un.org/depts/los/clcs_new/submissions_files/submission_gbr.htm. 19 Bay of Bengal Case (note 15). 20 Ibid., para 437.

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The final sentence of this statement is problematic, as it is unsubstantiated and a non sequitur. If Art. 76 (4) is to be used to interpret natural prolongation, as the Tribunal states, then it is a small part of Art. 76 (4) which is critical. In Art. 76 (4), it is subparagraph (b) which determines the foot of slope position, without which neither Art. 76 (4)(a)(i) nor Art. 76 (4)(a)(ii) can be implemented. It is noteworthy that the foot of slope must be located within the base of slope in accordance with the Commission’s Guidelines. 21 Where this is not possible, Art 76 (4)(b) admits the use of evidence to the contrary (a geological and geomorphological concept) to identify the foot of slope. A foot of the slope derived thus will be at the limit of the natural prolongation and therefore would seem not to be located at the same point as the outer edge of the continental margin. 27 The locus, or line of the foot of the continental slope can be identified with great accuracy on many continental margins, where it can be traced along the maximum change of gradient at the base of the slope. Along many margins, this point also frequently coincides with what most geologists would accept as the limit of natural prolongation based on the geological and geomorphological knowledge of the margin, and therefore allows the juridical and the technical understandings of the sense of Art. 76 to converge. This search for an inclusive convergence of the legal/technical concepts would seem to be a healthy premise from which to start the construction of the limits to the continental margin in accordance with Art. 76. The location of the locus of the foot of the slope where the technical understanding of the margin is lacking or the geological and geomorphological data are inconclusive is inevitably much harder, but this cannot negate the need to include the technical arguments of natural prolongation in its determination.

2. ‘The continental shelf of a coastal State shall not extend beyond the limits provided for in paragraphs 4 to 6’ 28

This paragraph confirms the parts of the article which provide the methodology by which the outer edge of the juridical continental margin is constructed (Art. 76 (4)), and those paragraphs which provide the constraints to extreme claims beyond 200 NM, thereby determining the limits to the continental shelf (Art. 76 (5) and (6)).

3. ‘The continental margin comprises […]’ Art. 76 (3) provides a summary of the various components of the continental margin, stating that as a submerged prolongation of the land mass of the State, it comprises the seabed and the subsoil of its three constituent parts – the shelf, slope and rise. It also very specifically identifies those parts of the seafloor which are excluded from the margin – namely, the deep ocean floor with its oceanic ridges or the subsoil thereof. The drafters of the article were well aware of the technical meaning of these terms, and they are used in this paragraph in that sense, to describe the constituent parts of a typical continental margin. The drafters were also aware of the fact that while many margins diverged from this classical model, they needed to formulate a juridical methodology which could be implemented across the worlds continental margins. The following paragraphs provided that methodology and it is within these that the technical and legal sense of the terms continental margin, continental shelf and foot of slope, can be seen to separate. 30 The terms in use throughout Art. 76 have very specific meaning to the largely scientifically-oriented coastal State representatives who carry out the preparation of the submission documents. This is a technical understanding, even though the precise definition of each term would vary from scientist to scientist. Even within the authoritative expertise of the International Hydrographic Organisation (IHO), the definitions are less than precise. 22 29

21 22

594

CLCS Scientific and Technical Guidelines (note 3), para 5.4.5. IHO, Hydrographic Dictionary Special Pub 32, Part 1, vol. 1 (1994), 281.

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Art. 76

4. ‘the coastal State shall establish the outer edge of the continental margin […]’ Art. 76 (4) provides the two technical criteria by which the outer edge of the continental margin can be constructed. Both criteria need to be calculated from the foot of the slope. The first, according to Art: 76 (4)(a)(i), relies on geological information regarding the distribution of the sedimentary rocks of the margin; Art. 76 (4)(a)(ii) relies on a geodetic measurement of 60 NM. A State may use either, or both of these methods to optimise the extent of the juridical continental margin The basis on which these criteria are formulated is a combination of both geographical and geological elements. Both require a geomorphological solution to the position of the foot of the continental slope, and then subsequently Art. 76 (4)(a)(i) requires an understanding of the thickness of sedimentary rock – normally obtained by geophysical methods. Art. 76 (4)(a)(ii) only uses a measurement of a distance of 60 NM from the foot of slope. The two methods, often referred to as formulae, were eventually both included in Art. 76 (4) because the drafters of the article recognised the different geological and geomorphological characteristics of continental margins, world-wide. Some margins presented a classic, sharply defined edge to the continent, largely reflecting its original shape at its formation, where others had been blanketed with sediment which related very much to the evolution and development of the margin. The freedom for a coastal State to choose whichever, or even a mix of these formulae if more appropriate, was a highly innovative and visionary inclusion in the drafting of the article. A variation of the two formulae in Art. 76 (4) which define the outer edge of its continental margin was developed in the closing stages of UNCLOS III, and eventually added in the form of Annex II to the Final Act.23 This provision was accepted by the Conference because the Sri Lankan delegation successfully argued that a strict application of Art. 76 (4)(a)(i), the sediment thickness formula, would not be equitable given its particular geographic circumstances. The alternative text to Art. 76 (4)(a)(i) allows a State in the southern part of the Bay of Bengal to define the outer edge of its continental margin by points where the sediment thickness is not less than 1 km, on the condition that a number of key criteria are established. These are: that the average distance at which the 200 m isobath occurs is not more than 20 NM; that the greater proportion of the sedimentary rock of the continental margin lies beneath the rise; that the mathematical average of the thickness of the sedimentary rock along a line established by means of application of Art. 76 (4)(a)(i) is more than 3.5 km and that this line would exclude more than half of the margin. Implementation of the provision by coastal States is limited in two ways. Firstly, once a State has used the method, a neighbouring State can also do this if it applies to a common geological feature, and secondly the Annex expressly restricts the use of these special provisions to coastal States in the southern part of the Bay of Bengal. The Statement of Understanding was included in the Final Act expressly for the purposes of establishing the outer edge of the continental margin, and requests that the Commission be governed by its provisions accordingly. The Statement, however, makes no reference to continental shelf and it would be logical to assume that if the Commission were to accede to this request in respect of a coastal States’ submission, it would incorporate the establishment of the outer edge of the continental margin into its implementation of the Art. 76 as a whole, including the establishment of the outer limits of the continental shelf, in accordance with Art. 76 (5) or (6). The sediment thickness criteria was proposed by the Irish delegation in 1976 at the Fourth Session, and was designed to address many of the continental margins around the world which are characterised by large sedimentary deposits.24 It was recognised that while many 23 Statement of Understanding concerning a specific method to be used in establishing the outer edge of the continental margin, Annex II to the Final Act of the Third Conference. See Parson on Annex II to the Final Act. 24 Nordquist/Nandan/Rosenne (note 2), cite notes from the 75th informal meeting of the Second Committee (15 April 1976).

Parson

595

31

32

33

34

Art. 76

35–41

Part VI. Continental shelf

margins were effectively ‘starved’ of sediment, elsewhere, large sediment formations were the norm. An analysis of these sediment bodies requires an expert understanding of marine geophysics and its use in establishing thickness of sedimentary rocks. Good quality, well navigated data are needed to determine the exact parameters to establish with precision the location of the outer limit of the continental margin. 35 In the context of the implementation of Art. 76 (4)(a)(i), the use of the word ‘outermost’ to refer to the relevant fixed points defining the outer limit of the continental shelf is deliberate. It is possible that areas where irregularities in the distribution of the sedimentary rocks of the continental margin, as a result of variabilities in the upper surface of the crystalline basement underlying the sediment, could lead to multiple resolution of the 1 % thickness calculation occurring at different distances from the foot of slope. The valid identification of a 1 % thickness at several points at different distances from the foot of the slope would not be unusual. Each of these would satisfy the criteria, but as the article states, the outermost location is selected. 36 The second of the formulae is a more straightforward geodetic measurement of 60 NM.

5. ‘the foot of the continental slope shall be determined as the point of maximum change in the gradient at its base’ 37

38

39

40

41

The foot of the continental slope is a feature which can be readily recognised on most continental margins, and logically forms a starting point for the measurements to the outer edge of the continental margin. Its definition is provided in Art. 76 (4)(b), which states that: ‘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’. There are two options for locating the foot of slope in Art 76 (4)(b), one specific: the point of maximum change of gradient at its base, and one general, using ‘evidence to the contrary’. The structure and order of the Convention text appears to suggest a first action to research evidence to the contrary, and if finding none to identify the point of maximum change of gradient. In their Scientific and Technical Guidelines, the Commission reversed the sense of the sub-paragraph and stated that the analysis of gradient should have primacy and that evidence to the contrary was to be used as the exception to the rule. 25 This makes the definition of the foot of the slope of crucial importance in delineating the outer limit of the outer continental shelf. The second of the criteria (the point of maximum change in the gradient) requires a precise, and relatively straightforward mathematical calculation to be undertaken which addresses the inclination of the seafloor and establishes at which point the gradient change is greatest. Adding the words ‘at its base’ as the final words of Art. 76 (4)(b) provided a clarification to a general text to ensure that there was no doubt as to which maximum change of gradient should be selected. In the normal form of a classic continental margin profile, there are two points where gradient change is very high – one at the edge of the physical shelf, at a shallow break of slope, often referred to as the shoulder, and one in deeper water at the base of the slope. Locating the foot of slope accurately within a base of slope region was developed as a key topic in Section 5 of the Commission’s Guidelines. And the process for identification and mapping the base of slope region was incorporated into the requirements to establish the foot of slope.26 Despite the advice of the Commission, it is likely that nothing has taken so much time in States development of their submissions as the identification of the foot of slope point – for the very fact that the further oceanward the foot of the slope point can be argued, then the entitlement to a greater an area of continental shelf beyond 200 NM will be ensured. 25 26

596

CLCS Scientific and Technical Guidelines (note 3), para. 6.1.2. Ibid., para. 5.4.5.

Parson

Definition of the continental shelf

42–45

Art. 76

NORDQUIST ET AL. state that the phrase ‘in the absence of evidence to the contrary’ implies 42 that there may be special circumstances requiring the application of alternative means for determining the foot of the continental slope.27 In an effort to clarify what was meant by this phrase, the Commission compiled a series of generic circumstances using examples taken from margins around the world, where they suggested evidence to the contrary may be invoked, and summarised what data would be needed to support these arguments. 28 Specifically, the Commission refers to geological and geomorphological evidence provided by plate tectonics.29 They describe how the foot of the slope may be marked by features which are especially characteristic of, for instance, convergent plate margins or rifted and volcanic passive margins. To date, only two of the 22 recommendations published by the Commission refer to foot of slope points being solely supported by evidence to the contrary,30 although certain geological characteristics of specific margins (such as those with a large sedimentary fan, for instance) have more recently needed this provision, 31 but the application of the alternative method of identifying the foot of slope has also been not straightforward.

6. ‘The fixed points comprising the line of the outer limits of the continental shelf […]’ At the Eighth Session in 1979, the Russian delegation proposed a text which would seek to 43 restrict the extent to which the formula which now forms Art. 76 (4) allowed states to delimit what might be considered excessive amounts of continental shelf beyond 200 NM. 32 It had been recognised by a number of delegations that the formulae would potentially allow some coastal States an entitlement to continental shelf so far beyond 200 NM that would represent an excessive claim. Cognisant of the fact that this would not prove satisfactory to non-wide margin States, the margineers agreed to the inclusion of a new paragraph, which restricted the continental shelf extent to either 350 NM from baselines from which the territorial seas are measured or to a line drafted at a distance of 100 NM oceanward from the 2500 m isobath. According to additional text provided by the Irish delegation, in this way the continental 44 margin area delineated using the formulae in paragraph 4 was defined as continental shelf if it lay within either of the constraints. Alternatively, wide continental margins could be effectively reduced to a continental shelf limit represented by the line of the constraint/ constraints. The selection of the 2500 m isobath – that is, a line on the seafloor along which every point 45 lies at 2500 m water depth, essentially an underwater contour – can present some difficulties. As the Commission recognise in their guidelines the configuration of bathymetric contours are often complex ‘as a result of geological and tectonic processes shaping the present continental margins’.33 It may also be a problem that modern contouring algorithms can produce overly complex or misleading isobath patterns when they attempt to resolve very flat surfaces – which is often the case for seafloor in water depths of 2500 m or more. Given that this is a vital component of the continental shelf limit process, much care has to be taken to ensure that sufficient reliable bathymetric data is available to substantiate the accurate selection of the 2500 m isobath. A simple 100 NM measurement beyond this is then taken to delineate the constraint. 27

Nordquist/Nandan/Rosenne (note 2). CLCS Scientific and Technical Guidelines (note 3), 6. Ibid., paras. 6.2.6–6.3.13. 30 Joint Submission made by France, Ireland, Spain and the United Kingdom, see: http://www.un.org/depts/ los/clcs_new/submissions_files/frgbires06/fisu_clcs_recommendations_summary2009.pdf; www.un.org/depts/los/ clcs_new/submissions_files/arg25_09/2016_03_11_COM_SUMREC_ARG.pdf. 31 http://www.un.org/depts/los/clcs_new/commission_submissions.htm. 32 USSR Proposal (note 11), Art. 76 (5) (USSR). 33 CLCS Scientific and Technical Guidelines (note 3), para. 4.4.2. 28 29

Parson

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Art. 76

46–48

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7. ‘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. […]’ Art. 76 (6) describes the delineation of the outer limit of a coastal States continental shelf in respect of a particular feature of the seafloor, the submarine ridge. This text, reducing the options for delimiting the continental shelf where it extends beyond 200 NM from two to one, appears to derive from the recognition that seafloor features such as mid-ocean (or active seafloor-spreading) ridges can extend for considerable distances from a land mass which lies upon them. Mid-ocean ridges are by nature both lengthy and elevated – and a constraint based on a measurement from a 2500 m isobath could allow these States undue advantage was addressed by this provision. Iceland, a coastal State which would likely be affected by this criteria, noted in the 128th Plenary of the Ninth Session (1980) that it ‘understood that the new criterion would apply to ridges which were a prolongations of the land mass of the coastal State concerned’.34 The Commission provided a lengthy text describing the geological characteristics of various types of seafloor highs, but concluded that its decisions on whether features included in States’ submissions should constitute submarine elevations, submarine ridges, or oceanic ridges would be made on a case-by-case basis.35 A recent publication from two ex-Commissioners reveal that none of the summaries of recommendation published by the Commission “recognise a clear case of a submarine ridge in the sense of Article 76, paragraph 6”.36 47 In order to reduce the uncertainty as to which seafloor features are components of the continental margin and those that are not, a text proposed by the Australian delegation suggested that ‘plateaux, rises, banks and spurs’ should all be included as examples of submarine elevations which are accepted as part the continental margin – and therefore be limited by either a 350 NM line or 100 NM beyond the 2500 m isobaths. 37 None of these features referred to in the Australian proposal are defined, and moreover this type of seafloor feature nomenclature is not formally standardised, with a result that two features named historically as ‘spurs’ for instance, may have very different geological origins and consequent significance for the delineation of the continental shelf. It is the responsibility of the coastal State to establish unequivocally the geological context of any submarine elevation or high it refers to in its submission. 46

8. ‘The coastal State shall delineate the outer limits of its continental shelf […]’ 48

This criteria was introduced at a relatively early stage in the drafting by both the US delegation and the Informal Group of Juridical Experts (known as the Evensen Group) during the Third Session in 1975. It provided a useful method to delineate the outer limit of the continental shelf, ensuring a practical representation of what would in many cases would be expected to be a highly irregular line. What seemed to be a simple manner of representation of a line, however, has precipitated some controversy, which the Commission has, to some extent, also contributed to.38 One area of uncertainty is the orientation at which a line can be constructed between a fixed point as established by Art. 76 (4) to (6), and a point on the 200 NM limit of the coastal State. Summaries of recommendations published by the 34

UNCLOS III, 128th Plenary Meeting, UN Doc. A/CONF.62/SR.128 (1980), OR XIII, 32, 36 (para. 58). CLCS Scientific and Technical Guidelines (note 3), para. 7.2.11. 36 Harald Brekke/Philip Symonds, Submarine Ridges and Elevations of Article 76 in Light of Published Summaries of Recommendation of the Commission on the Limits of the Continental Shelf, ODIL 42 (2015), 289–306. 37 UNCLOS III, Australia: Article 76 (ICNT/Rev.1) (1980, mimeo.), reproduced in: Renate Platzo ¨ der (ed.), Third United Nations Conference on the Law of the Sea: Documents, vol. IV (1983), 524 (Art. 76 (3)). 38 Øystein Jensen, The Commission on the Limits of the Continental Shelf: Law and Legitimacy (2014), 73–81. 35

598

Parson

Definition of the continental shelf

49–53

Art. 76

Commission suggest in some cases this line should be as short as possible, 39 and in others, to conform to the general configuration of the margin.40 Another is to what extent 60 NM bridging lines can be used to span sections of concave, indented or embayed continental shelf lines located by fixed points so as to enclose ‘additional’ areas of outer continental shelf which are not established on the criteria provided for in Art. 76 (4) to (6). While this practice has been accepted by the Commission in almost every case of summaries of recommendations published to date, it is noteworthy that in one instance, it did not accept the enclosure of an embayment created by New Zealand in one section of its submission. 41 This exception appears to be due to the large scale of the proposed enclosure.

9. ‘the Commission on the Limits of the Continental Shelf’ The Commission receives the submissions, which must be of a form as described in, and in 49 accordance with, a timetable laid out by Annex II of the Convention. Following examination of the materials in the manner described by the Commission in its Scientific and Technical Guidelines42 and Rules of Procedure,43 the Commission makes recommendations to the coastal State on the basis of which the coastal State shall establish the limits of the shelf, and these will be final and binding.44 Introduction of legislation by a coastal State for its continental shelf based on recommen- 50 dations from the Commission has taken place in several instances, but there are also notable examples where States and the Commission have disagreed, and have only enacted legislation for parts of the continental shelf. In cases of disagreement between a coastal States and the Commission, the coastal State 51 can resubmit if they wish with a revised submission. They may also add materials and data to their submission during the sub-commission/examination process.

10. ‘charts and relevant information’ Art. 76 (9) details what materials need to be provided by the coastal State to the Secretary 52 General regarding the outer limits of its continental shelf. The use of the word ‘permanently’ indicates these are final, having been endorsed by the Commission and accepted by the coastal State. The description of what these materials consist of – ‘charts and relevant information including geodetic data’ – may be compared to the requirements under Arts, 16, 75 and 84 in which charts or lists of coordinates are options. 45

11. ‘The provisions of this article are without prejudice to the question of delimitation of the continental shelf between States with opposite or adjacent coasts’ This paragraph provides for the fact that none of the actions or decisions of the Commis- 53 sion regarding the outer limits of the continental shelf should prejudice any subsequent delimitation between adjacent or opposite coastal States. This statement is mirrored in the wording of Art. 9 of Annex II to the Convention.46 Delimitation is not the intention nor the 39 http://www.un.org/depts/los/clcs_new/submissions_files/frgbires06/fisu_clcs_recommendations_summary2009.pdf, para. 28. 40 http://www.un.org/depts/los/clcs_new/submissions_files/aus04/Aus_Recommendations_FINAL.pdf. 41 http://www.un.org/depts/los/clcs_new/submissions_files/nzl06/nzl_summary_of_recommendations.pdf, para 61. 42 CLCS Scientific and Technical Guidelines (note 3), 9. 43 CLCS Rules and Procedure (note 3), S. XI and Annex III. 44 See Serdy on Annex II. 45 See Symmons on Art. 16 MN 14–15; Tanaka on Arts. 75 and 84. 46 Art. 9 states that ‘The actions of the Commission shall not prejudice matters relating to delimitation of boundaries between States with opposite or adjacent coasts’, see Serdy on Annex II, Art. 9.

Parson

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Part VI. Continental shelf

remit of any part of Art. 76, and this allows the Commission to proceed with its work divorced completely from issues of the existing, or future position of maritime boundaries. The Commission has chosen to interpret this in Annex l of its Rules of Procedure47 to preclude its examination of submissions which are in any way subject to disputed areas relevant to the continental shelf.

Annex II to the Final Act Statement of understanding concerning a specific method to be used in establishing the outer edge of the continental margin Considering the special characteristics of a State’s continental margin where (1) the average distance at which the 200 metres isobath occurs is not more than 20 nautical miles: (2) the greater proportion of the sedimentary rock of the continental margin lies beneath the rise; and Taking into account the inequity that would result to that State from the application to its continental margin of Article 76 of the Convention, in that, the mathematical average of the thickness of sedimentary rock along a line established at the maximum distance permissible in accordance with the provisions of paragraph 4 a (i) and (ii) of that article as representing the entire outer edge of the continental margin would be less that 3.5 kilometres; and that more than half of the margin would be excluded thereby; Recognises that such State may, notwithstanding the provisions of article 76, establish the outer edge of its continental margin by straight lines not exceeding 60 nautical miles in length connecting fixed points, defined by latitude and longitude, at each of which the thickness of sedimentary rock is not less than 1 kilometre, Where a State establishes the outer edge of its continental margin by applying the method set forth in the preceding paragraph of this statement, this method may also be utilised by a neighbouring State for delineating the outer edge of its continental margin on a common geological feature, where its outer edge would lie on such a feature on a line established at the maximum distance permissible in accordance with article 76 paragraph 4 a (i) and (ii), along which the mathematical average of the thickness of sedimentary rock is not less that 3.5 kilometres, The Conference requests the Commission on the Limits of the continental shelf set up pursuant to Annex II of the Convention, to be governed by the terms of this Statement when making its recommendation on matters related to the establishment of the outer edge of the continental margins of these States in the southern part of the Bay of Bengal. Bibliography: Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993) Documents: CLCS, Scientific and Technical Guidelines of the Commission on the Limits of the Continental Shelf, UN Doc. CLCS/11 (1999); CLCS, Submission by the Union of Myanmar (2008); CLCS, Submission by the Republic of Kenya (2009); SPLOS, Report of the nineteenth Meeting of States Parties, UN Doc SPLOS/203 (2009) Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘the 200 metres isobaths’ ‘the sedimentary rock’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘the mathematical average of the thickness of sedimentary rock […]’ . . . . . . . . . . 4. ‘margin’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

600

CLCS Rules and Procedure (note 3), Annex l.

Parson

1 7 10 10 11 12 13

Statement of understanding

1–4

Annex II to the Final Act

5. ‘such State may, notwithstanding the provisions of article 76, establish the outer edge of its continental margin by[…]’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 6. ‘this method may also be utilised by a neighbouring State’ . . . . . . . . . . . . . . . . . . . . . . 16 7. ‘States in the southern part of the Bay of Bengal’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

I. Purpose and Function The Statement of Understanding (hereafter referred to as ‘the Statement’) is formed of five 1 paragraphs, the first two of which contain the criteria which need to be satisfied by a coastal State in order for it to qualify to implement the provisions of the Statement. The third paragraph provides the technical details for a special manner of identifying positions for the fixed points which define the outer edge of the continental margin. This special methodology provides an alternative to either of the criteria laid out in of Art. 76 (4)(a)(i) and (ii). 1 The fourth paragraph of the Statement allows for a neighbouring State to utilise the same alternative method of delineating the outer edge of the continental margin as described in paragraph 3 – providing it also qualifies to apply the provision. The fifth paragraph contains two elements – one which requests the Commission on the Limits of the Continental Shelf (the Commission) set up pursuant to the terms of Annex II of the Convention to be governed by the terms of the Statement, and a second which constrains this alternative method of identifying the outer edge of the continental margin to States in the southern part of the Bay of Bengal. The implementation of the provisions within the Statement of Understanding has been 2 discussed widely, in terms of its applicability more globally than the fourth paragraph’s restriction to ‘the outer edge of the continental margins of these States in the southern part of the Bay of Bengal’ would indicate. For instance, in the report of the nineteenth meeting of the States Parties to UNCLOS, paragraph 79 states: ‘Reference was made to the Statement of Understanding contained in Annex II to the Final Act of the Third United Nations Conference on the Law of the Sea, which was considered to be applicable in every area in which the scientific criteria contained in the Statement could be satisfied, and did not depend on the geographic location of the State party.’2

Applications of Annex II of the Final Act (the Statement) by States other than those in the 3 southern part of the Bay of Bengal to submissions dealing with continental shelf beyond 200 NM have been made by both Myanmar and Kenya.3 At the time of writing, the Commission has been prevented from assessing these documents in accordance with their own Rules and Procedures, as both are the subject to objections by other State(s). 4 It is therefore not known whether the Commission could, or would, proceed with their work on these submissions. The text of the Statement of Understanding is consistent in that it refers only to the 4 determination of the continental ‘margin’ throughout its text. It was introduced by the Sri Lankan delegation during the Eighth Session as an amendment of the ‘Irish formula’, which became a component of the final text in the form of paragraph 4 (a) (i). It has been noted 1

See Parson on Art. 76 MN 31–42. SPLOS, Report of the nineteenth Meeting of States Parties, UN Doc SPLOS/203 (2009). 3 CLCS, Submission by the Union of Myanmar (2008), available at: http://www.un.org/depts/los/clcs_new/ submissions_files/submission_mmr.htm; CLCS, Submission by the Republic of Kenya (2009), available at: http:// www.un.org/depts/los/clcs_new/submissions_files/submission_ken_35_2009.htm. 4 Objection of the Somali Federal Republic (2014): available at: http://www.un.org/depts/los/clcs_new/submissions_files/ken35_09/som_re_ken_2014_02_04.pdf; http://www.un.org/depts/los/clcs_new/submissions_files/ ken35_09/2014_09_02_SOM_LET_UN_004_14-00700.pdf. Communication of Sri Lanka Relating to the Submission of Myanmar (2008), available at: http://www.un.org/depts/los/clcs_new/submissions_files/mmr08/ clcs16_2008_mmr_lka_e.pdf; Communication by India Relation to the Submission of Myanmar (2009), available at: http://www.un.org/depts/los/clcs_new/submissions_files/mmr08/clcs16_2008_ind_e.pdf; Note Verbale of Bangladesh Relating to the Submission od Myanmar (2009), available at: http://www.un.org/depts/los/clcs_new/ submissions_files/mmr08/clcs16_2008_mmr_bgd_e.pdf. 2

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Annex II to the Final Act

5–9

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elsewhere in this volume (See Art. 76 section) that paragraph 4 refers to the establishment of the continental margin and the subsequently validation of it as a whole, or part, as continental shelf only follows implementation of paragraphs 5 or 6 of Art. 76. 5 One interpretation of this is that the Statement would need to be implemented in combination with the other paragraphs of Art. 76, including Art. 76 (5) and (7), in order to generate a submission which the Commission would be able to examine as requested by the wording of paragraph 5 of the Annex II. It is somewhat surprising, then, that all of the three States which have invoked the use of the Statement of Understanding (Sri Lanka, Myanmar and Kenya) refer to one or more of the points located using the provisions of the Statement as defining limits to the continental shelf. 6 Paragraph 3 of Annex II of the Final Act contains the precise criteria on which the coastal State may delineate its continental margin (by straight lines not exceeding 60 NM in length connecting fixed points, defined by latitude and longitude, at each of which the thickness of sedimentary rock is not less than 1 km). It states, however, that this assessment is ‘notwithstanding the provisions of article 76.’ It would seem that this clause is one which potentially replaces certain provisions of Art. 76, and would apply solely to the method of identification of the outer limit, i. e., that contained by paragraph 4 (a) – and it would not negate all, or any of the other provisions of Art. 76.

II. Historical Background The text which became the Statement had its origins in comments made to the Seventh Session of the Conference (1978) by the Sri Lankan delegation, in which they presented their views on the text under development for the delimitation of a coastal States continental margin by use of the so-called ‘Irish formula’ – which eventually became Art. 76 (4)(a)(i). This criterion involving the measurement of sediment thickness was introduced to the Conference at the Fourth Session (1976), whereby it was proposed that the outer edge of the continental margin could be delineated by fixed points at which the thickness of the sedimentary rock was at least 1 % of the distance to the foot of slope. The Sri Lankans noted that the criterion could produce equitable results only in cases where the margin thinned out rapidly, and that it could cause injustice in the case of countries where the continental margin was wide and of considerable thickness throughout. 8 After further consultations and amid a general and widespread support from the Conference, at the Eighth Session (1979) Sri Lanka proposed an extended text to be included in of Art. 76 (4). The proposal read: 7

‘in the case of a State where the mathematical average of the thickness of sedimentary rocks along the entire outer edge of the continental margin established at the maximum distance permissible in accordance with he preceding provisions of his paragraph is not less than 3.5 kilometers, and where more than half of the margin lies beyond the outer edge as so delineated, by a line delineated in accordance with paragraph 6 by reference to the outermost fixed points at each of which the thickness of the sedimentary rocks is less than 0.8 kilometer.’5

9

It was agreed by the Conference and the Chairman that the text would be adopted as a statement of understanding to be incorporated in an Annex to the Final Act. Modest amendments to the text were developed during subsequent discussions and consultations – including the increase of sediment thickness to 1 km to mark the outer limit of the continental margin – and a final text was established at the resumed Ninth Session of the Conference (1980).

5 See Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 1021. See also ibid., 1020–1025 for further discussion of drafting with reference to a selection of otherwise unavailable travaux documents.

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III. Elements 1. Implementation Implementation of the Statement from a technical perspective presents a number of interest- 10 ing challenges. As the text is not part of the Convention, paragraph 5 of the Statement is specific in requesting the Commission to be governed by the terms of the Statement when making its recommendations on matters related to the establishment of the outer edge of the continental margin of these States. Some general technical guidance to the technical analyses defined by the Statement is provided by the Commission’s ‘Scientific and Technical Guidelines’6 (the Guidelines). The text of the Statement, however contains a number of geological and geophysical requirements which are not mentioned in Art. 76, are not examined in the Guidelines, and thus may introduce additional difficulties and uncertainties – as discussed below.

2. ‘the 200 metres isobaths’, ‘the sedimentary rock’ In the first paragraph of the Statement, a coastal State is required to identify its 200 m 11 isobath, a relatively uncontroversial parameter, and an average distance of 20 NM to that isobath – but the Statement rather unusually does not record from where this distance should be measured. It would be natural to assume that the starting point would be the baselines from which the width of the territorial sea is measured – so it is curious that this is not stated. The second set of parameters required to qualify for this alternative method refer to the need to calculate the amount of sedimentary rock of the continental margin lying beneath the rise. It would seem highly unlikely that the ‘amount of’ sedimentary rock could be calculated or estimated with any accuracy. Is it a surface, volume or mass above basement which needs to be calculated? On any method, this is a technical challenge of a huge order – much greater than the task to determine a 1 % point along a ship’s survey track. Even more problematic is the spatial relationship of this ‘amount’ relevant to the extent of the [continental] ‘rise’ – most of the sedimentary rock has to lie beneath it before the State can proceed. The term ‘rise’ is not defined in the Convention, and in general, is very difficult to quantify. The Commission itself makes two attempts to establish the technical parameters of a continental rise 7, and the International Hydrographic Organization defines it simply as ‘a long, broad elevation that rises gently and generally smoothly from the sea floor’. Neither of these texts are precise enough to act as satisfactory definitions for a feature on which qualification for application of the Statement’s criteria rely.

3. ‘the mathematical average of the thickness of sedimentary rock […]’ The second paragraph requires calculation and averaging of the thicknesses of sedimentary 12 rock at the location of each of the fixed points determined by Art. 76 (4)(a). The average value arrived at needs to be more than 3.5 km for the coastal State to qualify for use of the special provisions of the Statement. The paragraph also requires the coastal State make an estimation of the extent of the margin, since the exclusion of ‘half of the margin’ by the line constructed using paragraph 4 (a) needs also to be demonstrated. The use of the terms ‘rise’ and ‘margin’ in these two opening paragraphs is confusing, and in at least one case – the last sentence of paragraph 2 – contains a mixture of juridical and technical versions. 6 CLCS, Scientific and Technical Guidelines of the Commission on the Limits of the Continental Shelf, UN Doc. CLCS/11 (1999), 95. 7 Ibid., para. 5.4.5 it is simply stated: ‘The rise […] is the wedge-shaped sedimentary body having a smaller gradient than the continental slope’, and in ibid., para. 8.4.8, a rise is referred to being characterised by ‘a normal range in gradient […] of between 0.07 and 1.15 degrees’. Neither descriptor is particularly useful in establishing its extent.

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4. ‘margin’ The use of the word margin in the last two phrases in paragraph 2 is problematic. The first time it occurs (outer edge of the continental margin would not be less than 3.5 km) it refers to the juridical margin as defined by paragraph 4 (a), the second time it occurs (more than half the margin would be excluded) it is referring to the geological, non-juridical margin. As noted above, there is no satisfactory, or widely accepted quantifiable definition of a continental margin, thus presenting some difficulties in such a critical assessment. 14 Finally, it would be necessary for a coastal State to accurately define the lateral limits of the margin and rise in order to satisfactorily carry out the required calculations for division of these features as stipulated in paragraphs 1 and 2. Unless there are pre-existing agreements or adjudications, this may create further uncertainty and error. 13

5. ‘such State may, notwithstanding the provisions of article 76, establish the outer edge of its continental margin by[…]’ 15

Paragraph 3 of the Statement establishes that a measurement of at least 1 km thickness of sedimentary rock will define the outer edge of the continental margin. The implementation of this alternative provision to those provided in Art. 76 (4)(a) is straightforward and can be undertaken with reference to appropriate parts of the Commission’s Scientific and Technical Guidelines.

6. ‘this method may also be utilised by a neighbouring State’ 16

Paragraph 4 allows for a neighbouring coastal State to utilise the provisions in the Statement to delineate the outer edge of its continental margin on a common geological feature, providing it satisfies the single requirement that the average thickness of sedimentary rocks at points defined in accordance with Art. 76 (4)(a) is greater than 3.5 km. The neighbouring State is not required to satisfy criteria based on isobath position, extent of margin, rise or amount of sedimentary rock.

7. ‘States in the southern part of the Bay of Bengal’ 17

The final key element for the Statement is laid out in paragraph 5, where it states that its use is restricted to ‘States in the southern part of the Bay of Bengal’. As has been noted above, this has not deterred States that do not lie in the southern part of the Bay of Bengal from invoking the provisions of this Annex.

Article 77 Rights of the coastal State over the continental shelf 1. The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources. 2. The rights referred to in paragraph 1 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. 3. The rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation. 4. The natural resources referred to in this Part consist of the mineral and other nonliving resources of the seabed and subsoil together with living organisms belonging to 604

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sedentary species, that is to say, 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. Bibliography: Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); Edwin J Cosford, The Continental Shelf 1910–1945, McGill Law Journal 4 (1958), 245–266; Bruce C. Glavovic, Disasters on the Continental Shelf: Exploring New Frontiers, in: Myron H. Nordquist/John Norton Moore/Aldo Chircop/Rona´n Long (eds.) The Regulation of Continental Shelf Development: Rethinking International Standards (2013), 225–258; Tomas H. Heider, Legal Aspects of Continental Shelf Limits, in: Myron. H Nordquist/John Norton Moore/Tomas H. Heidar (eds.) Legal and Scientific Aspects of Continental Shelf Limits (2004), 19–38; Chie Kojima, Fisheries, Sedentary, MPEPIL, available at: http://www.mpepil.com; Hersch Lauterpacht, Sovereignty over Submarine Areas, BYIL 27 (1950), 376–433; David K. Leary, International Law and the Genetic Resources of the Deep Sea (2007); Moira L. McConnell, The Law Applicable on the Continental Shelf, General Reports of the XVIIIth Congress of the International Academy of Comparative Law (2012), 453–466; L. Dolliver M. Nelson, Maritime Jurisdiction, MPEPIL, available at: http://www.mpepil.com; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Alexander Proelss, Marine Genetic Resources under the UNCLOS and CBD, GYIL 51 (2008), 417–446; Donald R. Rothwell/Tim Stephens, The International Law of the Sea (2010); Tim Stephens, The Continental Shelf, in: Rachel Baird/Donald R Rothwell (eds.), Australian Coastal and Marine Law (2012), Ch. 7; Peter-Tobias Stoll, The Continental Shelf, MPEPIL, available at: http:// www.mpepil.com; Robin Wagner, Protecting the Diversity of the Depths: Environmental Regulation of Bioprospecting and Marine Scientific Research beyond National Jurisdiction, Ocean Yearbook 22 (2008), 411–443 Documents: GA, Oceans and Law of the Sea: Report of the Secretary General, UN Doc. A/62/66 (2007); ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4–12; ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45 Cases: Arbitration between Petroleum Development (Trucial Coast) Ltd. and Sheikh of Abu Dhabi, AJIL 47 (1953), 156–159; Cornish Submarine Mines (First) Arbitration of 1856; ICJ, Case Concerning the Continental Shelf (Libyan Arab Jamahiriya v. Malta), Judgment of 3 June 1985, ICJ Reports (1985), 13; ICJ, Case Concerning the Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), Judgment of 24 February 1982, ICJ Reports (1982), 18; ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Netherlands/Denmark), Judgment of 20 February 1969, ICJ Reports (1969), 3 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources’. . . . . . . . . . . . . . . . . . . . . 2. ‘no one may undertake these activities without the express consent of the coastal State’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘The rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation’ . . . . . . . . . . . . . . 4. ‘The natural resources referred to in this Part consist of […]’ . . . . . . . . . . . . . . . . . .

1 4 18 18 21 23 24

I. Purpose and Function Art. 77 defines the nature, extent and foundation of the rights of the coastal State over its 1 continental shelf. The article sets out the general regime of rights relating to Part VI and the continental shelf, with more specific provisions following. Whilst the continental shelf delineation regime set out in Art. 76 constitutes the most innovative provision of this part, Art. 77 serves to illustrate the rights of coastal States within this newly extended maritime zone. Indeed, although the new method of delineation of the limits of the continental shelf was a major change, UNCLOS ‘did not substantially modify the rights and duties of coastal and other States in the continental shelf.’1 1 Tim Stephens, The Continental Shelf, in: Rachel Baird/Donald R. Rothwell (eds.), Australian Coastal and Marine Law (2012), Ch. 7.

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Part VI. Continental shelf

The rights of the coastal State over the continental shelf are termed ‘sovereign rights’ and encompass the rights of exploring and exploiting the natural resources of the continental shelf. Though termed ‘sovereign’ rights, the coastal State does not have sovereignty over the continental shelf in the ordinary sense, but rather ‘functional rights and jurisdiction.’ 2 The provision clarifies that these rights are exclusive to the coastal State, with no other State being entitled to exercise them without express consent, and that they are inherent rights vested in the coastal State that do not on upon occupation or proclamation. This is in contrast to the rights of coastal States granted within the regime of the exclusive economic zone (EEZ) in Part V of the Convention3 or the regime of the territorial sea,4 as these maritime zones must be claimed before the coastal State has any specific rights. Art. 77 further defines what is meant by natural resources in relation to Part VI, narrowing the scope of the ‘sovereign rights’ to exploration and exploitation of these natural resources in this maritime zone. 3 Part VI constitutes a continuation and the final part of the provisions of the Convention that lay out the delineation rules and jurisdictional nexus of coastal States. Parts V and VI together ‘set out the rules governing the rights and duties of coastal States in respect of natural resources in maritime areas under national jurisdiction’5; Art. 77 is central to this. The regimes of the continental shelf and EEZ, although affording rights in different areas, are linked together in modern law,6 and Parts V and VI should be read together to properly understand the regime of each maritime zone. 2

II. Historical Background 4

The legal status of the submarine area beyond the limit of the territorial sea underwent significant upheaval, and many differing claims, in the 20th century before it became regulated internationally, first by the 1958 Convention on the Continental Shelf (CSC), and later by UNCLOS. The development of the regime of the territorial sea developed separately from the seabed underlying it,7 though by the early years of the 20th century ‘it became generally accepted that the possession of a territorial sea gave the coastal State proprietary rights of that sea, including its bed and subsoil.’8 The seabed of the high seas, however, was not generally considered to appertain to the coastal State, although some States held the position that title to its resources could be gained through effective occupation.9 With regards to resources, it was imagined that this occupation of the seabed could occur by means of tunneling,10 though some States also laid claim to sedentary fisheries.11 The nature of the seabed beyond the

2 Tomas H. Heidar, Legal Aspects of Continental Shelf Limits, in: Myron. H Nordquist/John Norton Moore/ Tomas H. Heidar (eds.) Legal and Scientific Aspects of Continental Shelf Limits (2004), 19, 34. 3 See Proelss on Art. 55 MN 3 and on Art. 56 MN 34–36. 4 See Tru ¨ mpler on Art. 3 MN 9–13. 5 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 825. 6 ICJ, Case Concerning the Continental Shelf (Libyan Arab Jamahiriya v. Malta), Judgment of 3 June 1985, ICJ Reports (1985), 13, para. 33. 7 Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 71; Barnes on Art. 2 MN 7. 8 Churchill/Lowe (note 7), 142. Indeed certain States had already begun, in the 19th century, to tunnel from terra firma beyond the limit of the territorial sea, see ICJ, Case Concerning the Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), Judgment of 24 February 1982, ICJ Reports (1982), Dissenting Opinion of Judge Oda, 157, paras. 31–32: discussing the Cornish Submarine Mines (First) Arbitration of 1856; Maggio on Art. 85 MN 2–5. 9 Churchill/Lowe (note 7), 142–143; though problems abound with the ‘occupation’ doctrine as the basis of the legal right of coastal States, see Hersch Lauterpacht, Sovereignty over Submarine Areas, BYIL 27 (1950), 376, 414–423. 10 Edwin J. Cosford, The Continental Shelf 1910–1945, McGill Law Journal 4 (1958), 245, 258. 11 For example France in respect of sponge fisheries beyond the territorial sea off Tunis, see Churchill/Lowe (note 7), 143.

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territorial sea was described variously as res communis and res nullius, with neither position effectively solving the problems of the area or properly describing its legal status.12 Beginning in 1942 with the Treaty between the United Kingdom of Great Britain and 5 Northern Ireland and Venezuela Relating to the Submarine Areas of the Gulf of Paria, 13 the area that can now be described as the continental shelf underwent a flurry of claims and proclamations which sought to extend some form of coastal State rights or ownership beyond the traditional 3 NM territorial sea. The Gulf of Paria Treaty sought to divide the submarine areas of the Gulf, with Art. 1 describing this as ‘denot[ing] the sea-bed and sub-soil outside of the territorial waters of the High Contracting Parties’14. Further, Art. 6 stated: ‘Nothing in this Treaty shall be held to affect in any way the status of the waters of the Gulf of Paria or any rights of passage or navigation on the surface of the seas outside the territorial waters of the Contracting Parties.’

The Treaty was followed by a UK Order in Council15 which settled the annexation of the British part of the Gulf through a legislative instrument, stating that relevant part of ‘the submarine area of the Gulf of Paria should be annexed to and form part of His Majesty’s dominions.’16 Though not expressly, the language of annexation used here gives a strong indication that the British believed they were entitled to exercise territorial sovereignty over the Gulf.17 The significance of the Treaty and Order in Council cannot be understated, as previously 6 ‘the only assertion of exclusive economic right generally recognised beyond the territorial sea and not arrived at by tunnel from shore had been to sedentary fisheries’18 and further the treaty ‘was the first legal act whereby rights of a territorial nature were claimed over zones beneath the high seas as an exception of the general regime prevailing therein.’ 19 The fact that the treaty explicitly distinguishes between the submarine areas (being the subsoil and sea bed) and the superjacent waters is important to note in the context of the development of the regime of the continental shelf. The most important development in this flurry of State practice occurred in 1945 with the 7 Truman Proclamation on the Policy of the United States with Respect to Natural Resources of the Subsoil and Sea Bed of the Continental Shelf.20 The Proclamation did not declare a regime of annexation or territorial sovereignty over the continental shelf area, but rather that: ‘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.’

This proclamation was not issued independently, but alongside another which addressed coastal State fisheries in certain areas of the high seas. 21 Thus, the sharp distinction made between the continental shelf and the superjacent waters was emphasised by these proclamations not only through the express language of the continental shelf proclamation, but also in that fisheries in the waters superjacent to the continental shelf were treated in a separate instrument. 12

See Lauterpacht (note 9), 414. Treaty between the United Kingdom of Great Britain and Northern Ireland and Venezuela Relating to the Submarine Areas of the Gulf of Paria, 26th February 1942, LNTS 205, 121. 14 Emphasis added. 15 The Submarine Areas of the Gulf of Paria (Annexation) Order August 6, 1942. 16 Emphasis added. 17 See Cosford (note 10), 260. 18 Ibid., 258: going on to state that even ‘then only in certain limited circumstances based either on an historic claim or on effective occupation.’ 19 Ibid. 20 US Presidential Proclamation 2667, Policy of the United States With Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf of 28 September 1945. 21 US Presidential Proclamation 2668, Policy of the United States with Respect to Coastal Fisheries in Certain Areas of the High Seas of 28 September 1945. 13

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Part VI. Continental shelf

Following the Truman Proclamation, many more States made claims of varying nature in regard to this submarine area. By the time the negotiations for UNCLOS I had begun, ‘about twenty States, some acting in their own right and on behalf of dependant territories, had made such claims.’22 The variance of the claims provided no clear established practice,23 and claims could be seen that sought to extend the jurisdiction or sovereignty of the coastal State not only to the continental shelf but also to the superjacent waters and even the airspace.24 A survey of these proclamations and instruments found that in some the term ‘continental shelf’ was not used at all.25 In others, no attempt to properly delineate the area in question was put forward, likely due to the ‘generally admitted elasticity of the notion of the continental shelf viewed as a geographic concept.’26 Indeed, the problems with the delineation of the continental shelf as a maritime zone and the use of the term continental shelf for its legal regime are tied to the fact that this term is geographical, and refers to a geographical prolongation of land mass beyond the territorial sea. How far and to what extent a legal regime could be imposed on this thus far borderless and widely varied (from State to State) geographic formation posed certain logistical problems that are perhaps reflected in this varied State practice and were addressed differently in the CSC and UNCLOS. 9 The CSC was negotiated at UNCLOS I on the basis of the International Law Commission (ILC) Draft Articles Concerning the Law of the Sea.27 In addressing this issue, the ILC accepted the practice of States that jurisdiction and control could be exercised beyond the limit of the territorial sea, but with the proviso that ‘such control and jurisdiction shall be exercised solely for the purpose of exploiting its resources; and it rejected any claim to sovereignty or jurisdiction over the superjacent waters.’28 The ILC also mentioned the idea put forward by some that the resources of the submarine areas ‘should be entrusted, not to coastal States, but to agencies of the international community generally’, but the Commission then raised the argument that such internationalisation ‘would meet with insurmountable practical difficulties.’29 In fact, under UNCLOS resources exploited from the Area (‘the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction’ � Art. 1 (1)(1)) are subject to such a regime through the Authority (� Part XI),30 while coastal States are under an obligation to make payments or contributions to the Authority in respect of resources exploited from the continental shelf beyond 200 NM (� Art. 82). 31 10 The ILC Draft Articles contained a provision outlining that ‘the coastal State exercises over the continental shelf sovereign rights for the purpose of exploring and exploiting its natural resources.’32 In the commentary to the article, the ILC laid out that while a draft version of this provision from 1951 referred to the continental shelf as ‘subject to the exercise by the coastal State of control and jurisdiction for the purpose of exploring and exploiting its natural resources’33, they rejected this language in favour of the more limited construction, as they: 8

22

Churchill/Lowe (note 7), 144. See Lauterpacht (note 9), 380–382 for a guide to the declarations made between 1945 and 1950. 24 Churchill/Lowe (note 7), 144; particularly ‘Latin American and Central American Countries were often far more ambitious’, see Arbitration between Petroleum Development (Trucial Coast) Ltd. and Sheikh of Abu Dhabi, AJIL 47 (1953), 156, 157. An extreme example can be seen in the 1944 Proclamation of Argentina which ‘made an ambit claim to a 200 NM territorial sea and all resources found within it’: Donald R. Rothwell/Tim Stephens, The International Law of the Sea (2010), 101. 25 Lauterpacht (note 9), 383. 26 Ibid. 27 ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4–12. 28 ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12, 40. 29 Ibid. 30 These resources are considered the common heritage of mankind, see Vo ¨ neky/Ho¨felmeier on Art. 136 MN 14–21; Vo¨neky/Ho¨felmeier on Art. 137 MN 12. 31 See further Chircop on Art. 82 MN 12–14. 32 ILC Law of the Sea Articles (note 27), 11 (Art. 68). 33 ILC Law of the Sea Articles with Commentaries (note 28), 42 (Commentary to Art. 68). 23

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‘desired to avoid language lending itself to interpretations alien to an object which the Commission considers to be of decisive importance, namely the safeguarding of the principle of the full freedom of the superjacent sea and the air space above it. Hence it was unwilling to accept the sovereignty of the coastal State over the seabed and subsoil of the continental shelf.’34

The Commission felt their favoured construction preserved this freedom, while at the same time ensuring the coastal State had all rights necessary for, and those connected with, the exploration and exploitation of the continental shelf. The Commission went on to highlight in their commentary that these rights are exclusive to the coastal State, in that if they are not claimed, then they cannot be exercised by any other State without the consent of the coastal State, and that these rights ‘do not depend on occupation, effective or notional, or on any express proclamation.’35 This language is mirrored in the CSC and then in UNCLOS. The ILC felt that it was unnecessary ‘to expatiate on the question of the nature and legal basis of these rights’, as the relevant considerations were too varied and particularly it was ‘not possible to base the sovereign rights of the coastal State exclusively on recent practice.’ 36 At UNCLOS I, the position of the ILC was challenged by some States: Argentina, for 11 example, argued that ‘sovereignty exercised over the continental shelf should be analogous to that exercised over the mainland territory, both by reason of the physical nature of the continental shelf and by reason of the nature of the rights vested in States’ 37; while the delegation of the Federal Republic of Germany felt that the ‘sovereign rights’ formulation limited the freedoms of the high seas more than was ‘absolutely unavoidable.’38 The issue of the nature of sovereign rights and how the draft article would function precisely when based on such rights was debated frequently throughout the meetings of the Fourth Committee 39 but no more precise definition was included in the text of the CSC. The rights of the coastal State over the continental shelf in the CSC are laid out, as in the 12 ILC Draft Articles, as being sovereign rights exercised ‘for the purpose of exploring and exploiting its natural resources.’40 The issue of delineation is dealt with in terms of depth, defining the continental shelf as: ‘to 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 natural resources of the said areas […].’ 41

The definition given in the CSC may be regarded as imprecise,42 and it underwent significant change in the process of the drafting of UNCLOS. What is important to note, however, is that the rights of the coastal State in relation to the continental shelf in the CSC are tied to its natural resources, and that this is indicated even in the definition of the shelf. The ILC Draft contained no definition of what exactly was meant by natural resources, 13 though the issue did receive some attention in the Commission’s commentaries, 43 with the Commission deciding to keep the broader term ‘natural resources’ as opposed to ‘mineral

34

Ibid. (emphasis added). Ibid.; for the historical importance of the notion of effective occupation in regards to the continental shelf, see infra, MN 4. 36 ILC Law of the Sea Articles with Commentaries (note 27), 42 (Commentary to Art. 68). 37 Statement of Mr. Ruiz Moreno (Argentina): UNCLOS I, Summary Records of the 1st to 5th Meetings of the Fourth Committee, UN Doc. A/CONF.13/C.4/SR.1-5 (1958), OR VI, 2 (Fourth Meeting); see infra, note 27. 38 UNCLOS I, Federal Republic of Germany: Memorandum Concerning Draft Articles 67–73, UN Doc. A/ CONF.13/C.4/L.1 (1958), OR VI, 125, 126. 39 See generally, UNCLOS I, Summary Records of Meetings of the Fourth Committee (1958), OR VI. 40 Art. 2 (1) CSC. 41 Art. 1 CSC; see further Parson on Art. 76 MN 8–9. 42 The formulation of the definition was even regarded as vague by some parties during the negotiations at UNCLOS I, see Statement of Mr. Sole (Union of South Africa): Summary Records of the 1st to 5th Meetings (note 37), 3; Statement of Miss Gutteridge (United Kingdom), ibid., 4. 43 ILC Law of the Sea Articles with Commentaries (note 27), 42 (Commentary to Art. 68). 35

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resources’.44 The issue of permanent attachment to the seabed had been discussed by the Commission, as had sedentary fisheries and the clear understanding that ‘the rights in question do not cover so-called bottom-fish and other fish which, although living in the sea, occasionally have their habitat at the bottom of the sea or are bred there’ 45, though these issues were not addressed in the draft article. 14 At UNCLOS I, the precise content of the term was again subject to much debate, with some States supporting the position of the ILC.46 However, not all States agreed; for example, the Burmese delegation sought to include that ‘[t]he term “natural resources” includes socalled bottom-fish’.47 With a view to avoiding such divergent interpretation, the UK made a proposal that this term only be included in the future convention with a definition, 48 and then went on (with 5 other States) to make a proposal that read: ‘The natural resources referred to in these articles consist of mineral and other non-living resources of the seabed and the subsoil together with living organisms belonging to sedentary species, that is to say, 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; but Crustacea and swimming species are not included.’49

The final sentence of the proposal was then deleted before it was adopted into the CSC. Art 2. CSC reads: ‘1. The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources. 2. The rights referred to in paragraph 1 of this article 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. 3. The rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation. 4. The natural resources referred to in these articles consist of the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species, that is to say, 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.’

Art. 77 UNCLOS was copied almost verbatim from the CSC. At the Sea-Bed Committee, some proposals were put forward which were divergent from this formula. For example, a Chinese proposal sought to treat the seabed and subsoil beyond the territorial sea as part of the ‘economic zone of the coastal State’50, and a similar proposal in this respect was put forward by Australia and Norway.51 The language used in the proposals at the Sea-Bed Committee was however, for the most part,52 similar to that contained in Art. 2 CSC.53 16 At UNCLOS III, proposals were also put forward that reflected the language of the CSC. The Informal Group of Juridical Experts (the Evenson Group) prepared a draft that incorporated only minor drafting changes from the CSC, along with the deletion of ‘or to make a claim to the continental shelf’ from Art. 2 (2) CSC.54 This was then incorporated into 15

44

Ibid., para. 3. Ibid. 46 See e. g. UNCLOS I, France: Proposal, UN Doc. A/CONF.13/C.4/L.7 (1958), OR VI, 128. 47 UNCLOS I, Burma: Proposal, UN Doc. A/CONF.13/C.4/L.3 (1958), OR VI, 127; see also UNCLOS I, Yugoslavia: Proposal, UN Doc. A/CONF.13/C.4/L.13 (1958), OR VI, 130. 48 UNCLOS I, United Kingdom of Great Britain and Northern Ireland: Proposal, A/CONF.13/C.4/L.27 (1958), L.27, 134. 49 UNCLOS I, Australia et al.: Proposal, UN Doc. A/CONF.13/C.4/L.36 (1958), OR VI, 136. 50 Sea-Bed Committee, China: Working Paper on Sea Area within Limits of National Jurisdiction, UN Doc. A/ AC.138/SC.II/L.34 (1973), 2. 51 Sea-Bed Committee, Working Paper Submitted by the Delegations of Australia and Norway Containing Certain Basic Principles on an Economic Zone and on Delimitation, UN Doc. A/AC.138/SC.II/L.36 (1973). 52 See China: Working Paper (note 50), 2, which uses the language of ‘exclusive jurisdiction’ rather than ‘sovereign rights’. 53 Nordquist/Nandan/Rosenne (note 5), 894. 54 Ibid. 45

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the Informal Single Negotiating Text,55 and underwent only renumbering before it was adopted with the Convention as a whole. There were further proposals during UNCLOS III that sought to include a paragraph 17 which addressed sovereign rights of the coastal State over ‘any object of purely archaeological and historical nature on or under its continental shelf’56, but this issue was ultimately addressed in Art. 303.57

III. Elements 1. ‘The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources’ Art. 77 sets out the general rights regime for activities carried out on the continental shelf. 18 The continental shelf is defined in Art. 76, and Art. 77 and the rest of Part VI go on to lay out the specific rights of coastal States in this maritime zone. The rights of the coastal State granted in respect of the natural resources can be said to exist due to the economic allocation of such resources to the coastal State.58 The importance of the regime of the continental shelf cannot be understated, as it has brought ‘more than 30 % of the world’s seabed under the special and limited sovereign rights of coastal States.’59 The sovereign rights referred to in Art. 77 (1) are limited to rights for the purpose of exploring 19 and exploiting the natural resources of the continental shelf. Thus, the regime of the continental shelf in UNCLOS does not grant the coastal State exclusive rights over the continental shelf in general, but only in relation to the exploration and exploitation of natural resources.60 In Part VI, some rights of the coastal State over the continental shelf are exclusive, such as the right to construct authorise and regulate the construction, operation and use of artificial islands on the continental shelf (� Art. 80; Art. 60 (1)(a)),61 and the right to authorise and regulate drilling (� Art. 81)62. The term ‘sovereign rights’ is also used in relation to the EEZ (� Art. 56 (1)(a)), and the rights of the coastal State are similarly limited to rights ‘for the purpose of exploring and exploiting, conserving and managing the natural resources’ of the EEZ. The term natural resources is defined in Art. 77 (4).63 The exploration and exploitation of 20 such resources on the continental shelf may take many forms, and may be carried out for example by drilling or tunneling in the subsoil or on the seabed, from terra firma, from vessels, or from artificial islands, installations or structures built either in the EEZ or on the shelf itself. The exploitation of oil, for example, comes with a risk of pollution, 64 and other provisions of the Convention ensure that where this occurs from seabed activities subject to national jurisdiction, coastal States are under an obligation to prevent, reduce and control such pollution (� Art. 208). 55 UNCLOS III, Informal Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/PART II (1975), OR IV, 152, 162–163 (Art. 63). 56 UNCLOS III, Informal Proposal by Cape Verde, Greece, Italy, Malta, Portugal, Tunisia and Yugoslavia, UN Doc. C.2/Informal Meeting/43/Rev.2 (1980, mimeo.), reproduced in: Renate Platzo¨ der (ed.), Third United Nations Conference on the Law of the Sea: Documents, vol. V (1984), 50. 57 Nordquist/Nandan/Rosenne (note 5), 894; see further Scovazzi on Art. 303 MN 8–9. 58 Peter-Tobias Stoll, The Continental Shelf, MPEPIL, para. 26, available at: http://www.mpepil.com. 59 Ibid., para. 1. 60 It appears now fairly settled that the continental shelf (and the EEZ) are no longer regarded by States as territory, see Moira L. McConnell, The Law Applicable on the Continental Shelf, General Reports of the XVIIIth Congress of the International Academy of Comparative Law (2012), 453, 463. 61 See Maggio on Art. 80 MN 1–2, 7. 62 See Maggio on Art. 81 MN 5–6. 63 See supra, MN 24–25. 64 See generally Bruce C. Glavovic, Disasters on the Continental Shelf: Exploring New Frontiers, in: Nordquist et al. (eds.) The Regulation of Continental Shelf Development: Rethinking International Standards (2013), 225–258.

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2. ‘no one may undertake these activities without the express consent of the coastal State’ The sovereign rights of the coastal State to explore and exploit the natural resources of the continental shelf are exclusive rights, and this is affirmed by the express inclusion of the fact that the express consent65 of the coastal State is required if another State or private entity wishes to carry out such activities. This consent requirement is strengthened by other articles in Part VI, as they lay out the exclusive right of the coastal State to authorise the construction and operation artificial islands, installations and structures,66 and authorise and regulate drilling on the continental shelf (� Art. 81). The sovereign rights of the coastal State with regard to the natural resources of the continental shelf can be contrasted with the rights of the coastal State over the living resources in the EEZ, as under Art. 62 (2) coastal States without the capacity to harvest such resources are under an obligation to give other States access ‘to the surplus of the allowable catch’67, while no such obligation exists with regard to the continental shelf. 22 Furthermore, although there is a general obligation on coastal States to grant their consent to marine scientific research (MSR) projects in their EEZs or on their continental shelves ‘in normal circumstances’ (� Art. 246 (3))68, a specific ground is recognised for the withholding of such consent where the envisaged project is ‘of direct significance for the exploration and exploitation of natural resources, whether living or non-living’69. Art. 246 (5) thus extends the strict consent based regime (as opposed to the general obligation to grant consent in Art. 246 (3)) to any MSR projects that are of direct significance to the rights of the coastal State secured in Art. 77. Although Art. 77 makes reference to the requirement of coastal State consent to carry out exploring and exploiting natural resources, and Art. 246 concerns a consent regime which may only be significant to such exploration and exploitation, the two provisions clearly ensure that the sovereign rights of the coastal State, exercised for the purposes of exploring and exploiting the natural resources, are exclusive. 21

3. ‘The rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation’ 23

Art. 77 (3) further specifies the nature of the right of the coastal State over the continental shelf. In contrast to the territorial sea and EEZ which must be claimed, 70 the rights of the coastal State exercises over the continental shelf are inherent. The ICJ stated, in the North Sea Continental Shelf Cases, that the continental shelf of a costal State is: ‘a natural prolongation of its land territory into and under the sea exist ipso facto and ab initio, by virtue of its sovereignty over the land, and as an extension of it in an exercise of sovereign rights for the purpose of exploring the seabed and exploiting its natural resources. In short, there is here an inherent right. In order to exercise it, no special legal process has to be gone through, nor have any special legal acts to be performed. Its existence can be declared (and many States have done this) but does not need to be constituted.’71 65 The term express consent is only used in two other articles of the Convention: Art. 245 in relation to MSR in the territorial sea and Art. 265 in relation to dispute settlement and MSR. See Huh/Nishimoto on Art. 245 MN 11–12. 66 Though only artificial islands for all purposes, installations and structures are more limited: see Maggio on Art. 80 MN 1. 67 See Harrison/Morgera on Art. 62 MN 6–10. 68 Which states ‘Coastal States shall, in normal circumstances, grant their consent to marine scientific research projects by other States or competent international organizations in their exclusive economic zone or on their continental shelf […]’, see further Huh/Nishimoto on Art. 246 MN 23–24. 69 Art. 246 (5) (a) (emphasis added). See Huh/Nishimoto on 246 MN 31, 35. 70 See Proelss on Art. 55 MN 3; Tru ¨ mpler on Art. 3 MN 9–13. 71 ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Netherlands/Denmark), Judgment of 20 February 1969, ICJ Reports (1969), 3, 22 (para. 19, emphasis added); this subparagraph therefore ‘codifies the rule established in the North Sea Continental Shelf Cases’, see Heidar (note 2), 36.

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This ‘inherent right’ can be viewed as a ‘distinct legal base’72 in comparison to the rights of the coastal State in the EEZ, a right ‘which clarifies that coastal States’ rights over the continental shelf do exist ipso facto whereas the rights of the EEZ requires to be claimed by the coastal State in question.’73 The express mention of occupation and proclamation refer directly to the historical developments which led to the development of an international regime concerning the continental shelf.74

4. ‘The natural resources referred to in this Part consist of […]’ Art. 77 (4) explicitly lays out what is meant by natural resources when referred to in Part 24 VI of the Convention. They consist of ‘mineral and other non-living resources of the seabed together with other living organisms belonging to sedentary species.’ This paragraph serves to reinforce the fact that the continental shelf regime only applies to the seabed and subsoil of the shelf, and not to any resources that are found in the water column above. The further explanation of what is meant by ‘sedentary species’ as being ‘organisms which, 25 at their harvestable stage, either are immobile on or under the sea-bed or are unable to move except in constant contact with the sea-bed or subsoil’, explicitly rules out any organisms and fisheries that are not in such contact, and are thus regulated by the regime of the EEZ in regards to fisheries (� Arts. 62–67). Art. 68 specifically references Art. 77 (4) in clarifying that Part V does not apply to sedentary species,75 and clarifying that they are not regulated by the fisheries regime established for the EEZ.76 Sedentary species, as a notion, was developed in the context of the regime of the continental shelf77 and is generally accepted as including ‘chanks, clams, oysters, mussels, scallops, sponges, corals, and crustaceans such as shrimps, prawns, lobsters, and crabs.’78 However, there exists some ambiguity concerning crustaceans, as some argue that as they are able to swim they should not be included, 79 particularly as socalled ‘bottom fish’ are excluded.80 Furthermore, the 2007 Report of the Secretary General on Oceans and the Law of the Sea81 made reference to the fact that: ‘The extent to which the definition of sedentary species under article 77 covers the complex and symbiotic web of life of deep-sea ecosystems may need to be addressed in order to clarify whether such ecosystems and organisms belong to the regime of the continental shelf or of the water column above it.’82

This is of particular relevance in cases where the coastal State has not claimed an EEZ, or the continental shelf of the coastal State is claimed beyond 200 NM, as in these cases the waters above the shelf are high seas, and thus any biological resources found there would be subject to the regime of Part VII of the Convention.83 As in many other areas of the UNCLOS, Part VI has been faced with challenges arising 26 from developments in science and technology since its negotiation. In the context of the continental shelf, this is particularly pronounced with regards to the regime for genetic resources on the continental shelf.84 As ‘living organisms belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the 72

Stoll (note 58), para. 6. Ibid. See infra, MN 5–8. 75 See further Harrison on Art. 68. 76 L. Dolliver M. Nelson, Maritime Jurisdiction, MPEPIL, para. 54, available at: http://www.mpepil.com. 77 Chie Kojima, Fisheries, Sedentary, MPEPIL, para. 1, available at: http://www.mpepil.com. 78 Ibid., para. 2. 79 Ibid. 80 See infra MN 13–14. 81 GA, Oceans and Law of the Sea: Report of the Secretary General, UN Doc. A/62/66 (2007). 82 Ibid., 59. 83 Ibid. 84 For genetic resources in the Area, see Scovazzi on Art. 133 MN 14–22. 73 74

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seabed or are unable to move except in constant physical contact with the seabed or the subsoil’ are included within the term ‘natural resources’ under Art. 77 and Part VI, it appears that in this area genetic resources on the seabed are to be treated as other living or non-living resources as regards the rights of the coastal State. Although not envisaged in the drafting of Art. 77, they appear to fit under the definition provided in the article. A further problem arises, however, in the context of hydro-thermal vent species, 85 which are not so easily classified as sedentary species and thus arguably not governed by the provisions in Part. VI. 86 WAGNER states: ‘Some of the species which inhabit hydrothermal vent communities, seep communities and deep sea sediment such as nematodes and molluscs will fulfil the definition of sedentary species and therefore fall under coastal State jurisdiction while others such as the micro-organisms which abound in hydrothermal plumes will not.’87

Article 78 Legal status of the superjacent waters and air space and the rights and freedoms of other States 1. The rights of the coastal State over the continental shelf do not affect the legal status of the superjacent waters or of the air space above those waters. 2. The exercise of the rights of the coastal State over the continental shelf must not infringe or result in any unjustifiable interference with navigation and other rights and freedoms of other States as provided for in this Convention. Bibliography: Tomas H. Heidar, Legal Aspects of Continental Shelf Limits, in: Myron. H Nordquist/John Norton Moore/Tomas H. Heidar (eds.) Legal and Scientific Aspects of Continental Shelf Limits (2004), 19–38; Stephan Hobe, Airspace, MPEPIL, available at: http://www.mpepil.com.; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Donald R. Rothwell/Tim Stephens, The International Law of the Sea (2010); Peter-Tobias Stoll, Continental Shelf, MPEPIL, available at: http://www.mpepil.com Documents: ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45; UN DOALOS, Baselines: An Examination of the Relevant Provisions of the United Nations Convention on the Law of the Sea (1989) Cases: ICJ, Fisheries Jurisdiction Case (United Kingdom of Great Britain and Northern Ireland v. Iceland), Jurisdiction of the Court, Judgment of 2 February 1973, ICJ Reports (1973), 3; ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Netherlands/Denmark), Judgment of 20 February 1969, ICJ Reports (1969), 3 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 1. ‘The rights of the coastal State over the continental shelf do not affect the legal status of […]’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 2. ‘superjacent waters or […] air space above those waters’ . . . . . . . . . . . . . . . . . . . . . . . 9 3. ‘must not infringe or result in any unjustifiable interference’ . . . . . . . . . . . . . . . . . . . 11 4. ‘navigation and other rights and freedoms of other States as provided for in this Convention’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

85 See Alexander Proelss, Marine Genetic Resources under the UNCLOS and CBD, GYIL 51 (2008), 417, 418–419. 86 See David K. Leary, International Law and the Genetic Resources of the Deep Sea (2007), 96–94. 87 Robin Wagner, Protecting the Diversity of the Depths: Environmental Regulation of Bioprospecting and Marine Scientific Research beyond National Jurisdiction, Ocean Yearbook 22 (2008), 411, 419.

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I. Purpose and Function Art. 78 serves to ensure that the legal status of the waters and air space over the 1 continental shelf, and any rights or freedoms of other States in those waters, are not affected by the rights of the coastal State on the continental shelf, as ‘[t]he continental shelf only includes the seabed and the sea soil.’1 The provision is partially declaratory, serving to reassure States that the extension of coastal State jurisdiction on the continental shelf will not affect the legal status of the superjacent waters and airspace over the continental shelf and thus interfere with their rights in this area, but at the same time also serves to provide distinct limitations to the rights of the coastal State laid out in the other provisions of Part VI of the Convention.2 Art. 78 (1) clarifies the way in which the legal regimes of the different maritime zones 2 interact. Art. 78 (2), however, lays out a specific obligation as to the way in which the rights of the coastal States must be carried out in order to protect the rights and freedoms granted to other States in the Convention.

II. Historical Background Despite some more far reaching claims by States,3 the basic premise of what is included in 3 Art. 78 of the Convention was never hotly contested. 4 The International Law Commission (ILC), in the commentaries to their Draft Articles concerning the Law of the Sea, 5 recognised the sovereign right of coastal States over the continental shelf, while they, at the same time, ‘rejected any claim to sovereignty or jurisdiction over the superjacent waters.’ 6 At the time of the development of the regime of the continental shelf, then defined as the seabed and subsoil of the submarine area adjacent to the coast but beyond the limits of the territorial sea, 7 the waters superjacent to the shelf were high seas. Thus, Art. 3 of the 1958 Convention on the Continental Shelf (CSC) lays out that ‘[t]he 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 air space above those waters.’ The CSC goes on to lay out a more specific obligation than is found in Art. 78 UNCLOS. Art. 5 (1) states: ‘The exploration of the continental shelf and the exploitation of its natural resources must not result in any unjustifiable interference with navigation, fishing or the conservation of the living resources of the sea, nor result in any interference with fundamental oceanographic or other scientific research carried out with the intention of publication.’

With the development of the regime of the exclusive economic zone (EEZ) at UNCLOS 4 III, however, the approach changed. The classification of the waters superjacent to the continental shelf is now dependent on the extent of the EEZ claimed by the coastal State 8/ 1 Tomas H. Heidar, Legal Aspects of Continental Shelf Limits, in: Myron. H Nordquist/John Norton Moore/ Tomas H. Heidar (eds.) Legal and Scientific Aspects of Continental Shelf Limits (2004), 19, 35. 2 Particularly Art. 77: see Maggio on Art. 77 MN 24. 3 For detail, see Maggio on Art. 77 MN 6–8. 4 And indeed, was confirmed by the International Court of Justice (ICJ) on several occasions, see ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Netherlands/Denmark), Judgment of 20 February 1969, ICJ Reports (1969), 3, 37 (para. 59); ICJ, Fisheries Jurisdiction Case (United Kingdom of Great Britain and Northern Ireland v. Iceland), Jurisdiction of the Court, Separate Opinion of Judge Sir Fitzmaurice, ICJ Reports (1973), 27 (para. 7). 5 ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45. 6 Ibid., 40. 7 See Art. 1 Convention on the Continental Shelf (CSC). 8 See Art. 57.

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whether the continental shelf extends beyond 200 NM from the baseline used to measure the breadth of the territorial sea.9 5 During the drafting of the Convention, various proposals were made as to the precise formulation of what was to become Art. 78. A proposal by the United States in 197410 sought to apply a provision related to the EEZ mutatis mutandis11 to the continental shelf; the proposal provided for ‘the exercise of rights and the performance of duties by the coastal State without unjustifiable interference with navigation or other uses of the sea in the economic zone’. 12 However, this approach was not followed. The only major controversy in the draft that followed was whether the provision on the legal status of the superjacent waters and air space to the continental shelf would contain the wording ‘unjustifiable interference’.13 In the end, following a compromise proposal by the Chairman of Negotiating Group 6,14 this was included as Art. 78 (2) in the Informal Composite Negotiating Text (Revision 1).15 Only minor drafting changes were made before the provision was adopted with the Convention as a whole.16

III. Elements 1. ‘The rights of the coastal State over the continental shelf do not affect the legal status of […]’ As outlined above, Art. 78 serves to declare that the rights of the coastal State over the continental shelf17 do not affect the legal status of the waters and airspace above the shelf. Art. 77 lays out the sovereign rights exercised by coastal States over the continental shelf for the purposes of exploring and exploiting its natural resources (Art. 77 (1)), defined in Art. 77 (4) as being ‘mineral and other non-living resources of the sea-bed and subsoil together with living organisms belonging to sedentary species’.18 Coastal States also have exclusive rights on the continental shelf in relation to the construction, authorisation and regulation of installations and structures for the purpose of exploring and exploiting its natural resources and artificial islands for all purposes (Art. 80), and authorisation and regulation of drilling for all purposes (Art. 81). 7 The legal status of the waters above the continental shelf is not determined by reference to the shelf, but rather the limits of the EEZ of the relevant coastal State. Coastal States must claim their EEZ (and can up to a limit of 200 NM (Art. 57))19, in contrast to the continental shelf, which the International Court of Justice described as: 6

‘a natural prolongation of its land territory into and under the sea exist ipso fucto and ab initio, by virtue of its sovereignty over the land, and as an extension of it in an exercise of sovereign rights for the purpose of exploring the seabed and exploiting its natural resources. In short, there is here an inherent right. In order to exercise it, no special legal process has to be gone through, nor have any special legal acts to be performed. Its existence can be declared (and many States have done this) but does not need to be constituted.’20 9

See Arts. 57 and 76. Second Committee UNCLOS III, United States of America: Draft Articles for a Chapter on the Economic Zone and Continental Shelf, UN Doc. A/CONF.62/C.2/L.47 (1974), OR III, 222, 224 (Art. 26). 11 See Maggio on Art. 80 MN 10. 12 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 903; USA: Draft Articles (note 10), 222 (Art. 8). 13 Ibid., 903–906. 14 UNCLOS III, Compromise Suggestions by the Chairman of Negotiating Group 6, UN Doc. A/CONF.62/ L.37 (1979), OR XI, 100, 101. 15 UNCLOS III, Informal Composite Negotiating Text (Revision 1), UN Doc. A/CONF.62/WP.10/REV.1 (1979), OR VIII, 55. 16 Nordquist/Nandan/Rosenne (note 12), 906. 17 For the definition of the continental shelf, see Parson on Art. 76 MN 26–33. 18 See further, Maggio on Art. 77 MN 24–25. 19 See Proelss on Art. 57. 20 North Sea Continental Shelf Cases (note 4), 22 (para. 19). 10

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Where no EEZ is claimed, or an EEZ is claimed but the continental shelf extends beyond this limit,21 the superjacent waters of the continental shelf beyond are governed by the regime of the high seas, set out in Part VII of the Convention. The sovereign rights of the coastal State over the continental shelf exist for the purpose of 8 exploring and exploiting its natural resources, and the regimes of the continental shelf and EEZ provided for in the Convention ‘deviate[] from the classical law of the sea divide between full sovereign control over the territorial sea and the freedom of the high seas in establishing distinct spaces of limited powers in between.’22 In ensuring that the legal status of the superjacent waters to the continental shelf are not affected by the rights of the coastal State on the shelf, Art. 78 (1) cements this distinction.

2. ‘superjacent waters or […] air space above those waters’ Superjacent waters have been defined by the UN Division for Ocean Affairs and the Law of 9 the Sea as ‘waters lying immediately above the sea-bed or deep ocean floor up to the surface’23, a definition which also corresponds to the water column.24 The term ‘water column’ also appears in Art. 257 of the Convention in relation to marine scientific research in the waters beyond the limits of the EEZ: waters which may be superjacent to the continental shelf of the coastal State or the Area, depending on the limits of the EEZ and continental shelf in the case in question.25 The sovereign air space of a State is tied to its sovereign territory, and therefore ‘the 10 horizontal delimitation is drawn along the territorial borders of a State including its territorial seas and archipelagic waters.’26 Thus, the air space referred to in Art. 78 is not considered to belong to the coastal State. Where the superjacent waters to the continental shelf are high seas, the Art. 87 (1) (b) high seas freedom of overflight applies to the air space above these waters.27 Where the superjacent waters to the continental shelf are the EEZ of a coastal State, Art. 58 of the Convention lays out that all States enjoy ‘the freedoms referred to in article 87 of navigation and overflight […]’28. Of further relevance in this context is Art. 2 of the International Convention on Civil Aviation which states that ‘for the purposes of this Convention the territory of a State shall be deemed to be the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection or mandate of such State.’

3. ‘must not infringe or result in any unjustifiable interference’ After laying out that the legal status of the superjacent waters and air space over the 11 continental shelf of a coastal State is not affected by the existence of the rights of the coastal State on the shelf in Art. 78 (1), Art. 78 (2) goes on to impose an additional obligation on coastal States not to infringe the rights and freedoms of other States in these areas in the exercise of their rights in relation to the continental shelf. This part of the provision is essentially a corollary to Arts. 58 and 87 which guarantee the freedoms of all States in the EEZ and on the high seas, subject to certain limitations.29 The term ‘unjustifiable interference’ only appears in one other provision of the Conven- 12 tion: Art. 194 (4) in relation to measures to prevent, reduce or control pollution of the 21 See Parson on Art. 76 MN 37–40 for detail on the delineation of the continental shelf under the Convention beyond 200 NM from the baseline which measures the breadth of the territorial sea. 22 Peter-Tobias Stoll, Continental Shelf, MPEPIL, para. 24, available at: http://www.mpepil.com. 23 UN DOALOS, Baselines: An Examination of the Relevant Provisions of the United Nations Convention on the Law of the Sea (1989), 67. 24 Nordquist/Nandan/Rosenne (note 12), 906. 25 For further information, see Huh/Nishimoto on Art. 257 MN 5, 9. 26 Stephan Hobe, Airspace, MPEPIL, para. 5, available at: http://www.mpepil.com. 27 see Guilfoyle on Art. 87 MN 10. 28 Emphasis added, see Proelss on Art. 58 MN 9–15. 29 For example, see Art. 58 (3) and Art. 87 (2).

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marine environment. It provides coastal States with some leeway in how they exercise their rights over the continental shelf, but serves to protect the rights and freedoms of other States by ensuring that any interference with these rights and freedoms must be justifiable. 30

4. ‘navigation and other rights and freedoms of other States as provided for in this Convention’ 13

The rights and freedoms referred to in Art. 78 (2) are those found in Parts V and VII of the Convention in relation to the EEZ and high seas.31 The rights of overflight and navigation provided for in the EEZ are more restrictive than those on the high seas, as coastal States have some regulatory powers in the EEZ which may interfere with these rights. 32

Article 79 Submarine cables and pipelines on the continental shelf 1. All States are entitled to lay submarine cables and pipelines on the continental shelf, in accordance with the provisions of this article. 2. Subject to its right to take reasonable measures for the exploration of the continental shelf, the exploitation of its natural resources and the prevention, reduction and control of pollution from pipelines, the coastal State may not impede the laying or maintenance of such cables or pipelines. 3. The delineation of the course for the laying of such pipelines on the continental shelf is subject to the consent of the coastal State. 4. Nothing in this Part affects the right of the coastal State to establish conditions for cables or pipelines entering its territory or territorial sea, or its jurisdiction over cables and pipelines constructed or used in connection with the exploration of its continental shelf or exploitation of its resources or the operations of artificial islands, installations and structures under its jurisdiction. 5. When laying submarine cables or pipelines, States shall have due regard to cables or pipelines already in position. In particular, possibilities of repairing existing cables or pipelines shall not be prejudiced. Bibliography: J. M. Anderson, Decommissioning Pipelines and Subsea Equipment: Legislative Issues and Decommissioning Processes, The International Journal of the Society for Underwater Technology 25 (2) (2002), 105–111; Stewart Ash, The Development of Submarine Cables, in: Douglas R. Burnett/Robert C. Beckmann/Tara M. Davenport (eds.), Submarine Cables: The Handbook of Law and Policy (2014), 19–39; Robert C. Beckmann, Submarine Cables – A Critically Important but Neglected Area of the Law of the Sea (2010), available at: http:// cil.nus.edu.sg/wp/wp-content/uploads/2010/01/Beckman-PDF-ISIL-Submarine-Cables-rev-8-Jan-10.pdf; Douglas Burnett, Out-of-Service Submarine Cables, in: Douglas R. Burnett/Robert C. Beckmann/Tara M. Davenport (eds.), Submarine Cables: The Handbook of Law and Policy (2014), 213–222; Douglas Burnett/Tara Davenport/ Robert Beckmann, Introduction. Why Submarine Cables?, in: Douglas R. Burnett/Robert C. Beckmann/Tara M. Davenport (eds.), Submarine Cables: The Handbook of Law and Policy (2014), 1–15; Douglas Burnett/Robert Beckmann/Tara Davenport, Overview of the International Legal Regime Governing Submarine Cables, in: Douglas R. Burnett/Robert C. Beckmann/Tara M. Davenport (eds.), Submarine Cables: The Handbook of Law and Policy (2014), 63–90; Lionel Carter/Douglas Burnett/Tara Davenport, The Relationship between Submarine Cables and the Environment, in: Douglas R. Burnett/Robert C. Beckmann/Tara M. Davenport (eds.), Submarine Cables: The Handbook of Law and Policy (2014), 179–212; Lionel Carter/Alfred H. A. Soons, Marine Scientific Research Cables, in: Douglas R. Burnett/Robert C. Beckmann/Tara M. Davenport (eds.), Submarine Cables: The Handbook of Law and Policy (2014), 323–337; Tara Davenport, Submarine Cables and Law of the Sea: Problems in Law and Practice, ODIL 43 (2012), 201–242; Graham Evans/Monique Page, The Planning and Surveying of Submarine Cable Routes, in: Douglas R. Burnett/Robert C. Beckmann/Tara M. Davenport (eds.), Submarine Cables: The Handbook of Law and Policy (2014), 93–122; Wolff Heintschel von Heinegg, Protecting Critical 30 31 32

618

See Czybulka on Art. 194 MN 26–27. See supra, MN 6. Donald R. Rothwell/Tim Stephens, The International Law of the Sea (2010), 93.

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79

Submarine Cyber Infrastructure: Legal Status and Protection of Submarine Communication Cables under International Law, in: Katharina Ziolkowski (ed.), Peacetime Regime for State Activities in Cyberspace: International Law, International Relations and Diplomacy (2013), 291–318; Rainer Lagoni, Festlandsockel und ausschließliche Wirtschaftszone, in: Wolfgang Graf Vitzthum (ed.), Handbuch des Seerechts (2006), 161–286; Rainer Lagoni, Legal Aspects of Submarine High Voltage Direct Current (HVDC) Cables (1998); Rainer Lagoni, Pipelines, MPEPIL, available at: www.mpepil.com; Umberto Leanza, Marine Scientific Research and the Right to Lay Submarine Cables and Pipelines, in: Norman A. Martı´nez Gutie´rrez (ed.), Serving the Rule of Maritime Law. Essays in Honour of Professor David Joseph Attard (2010), 129–135; Alexander Lott, Marine Environmental Protection and Transboundary Pipeline Projects: A Case Study of the Nord Stream Pipeline, Merkourious – International and European Environmental Law 27 (2011), 55–67; Myron H. Nordquist/Sataya N. Nandan/Louis B. Sohn (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Myron H. Nordquist/Sataya N. Nandan/Louis B. Sohn (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995); Alexander Proelss, Pipelines and Protected Sea Ares, in: Richard Cadell/Rhidian Thomas (eds.), Shipping, Law and the Marine Environment in the 21st Century: Emerging Challenges for the Law of the Sea – Legal Implications and Liabilities (2013), 276–292; J. Ashley Roach, Military Cables, in: Douglas R. Burnett/Robert C. Beckmann/Tara M. Davenport (eds.), Submarine Cables: The Handbook of Law and Policy (2014), 339–349; Yoshinobu Takei, Law and Policy for International Submarine Cables: An Asia-Pacific Perspective, Asian Journal of International Law 2 (2012), 205–233; George K. Walker (ed.), Definitions for the Law of the Sea: Terms Not Defined by the 1982 Convention (2012) Documents: GA Res. 70/235 of 23 December 2015; Lorna Inniss(Coordinator)/Alan Simcock (Coordinator) et al., The First Global Integrated Marine Assessment: World Ocean Assessment I (2016), available at: http://www.un.org/ Depts/los/global_reporting/WOA_RPROC/WOACompilation.pdf; Lionel Carter/Douglas Burnett/Stephen Drew/ Graham Marle/Lonnie Hagadorn/Deborah Bartlett-McNeil/Nigel Irvine, Submarine Cables and the Oceans: Connecting the World, Report of the ICPC/UNEP/UNEP-WCMC (2009), available at: www.iscpc.org/documents/ ?id=132; ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/ 3159 (1956), GAOR 11th Sess. Suppl. 9, 4–12; ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45 Cases: ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Netherlands/Denmark), Judgment ~a, S.A. v. Ministro of 20 February 1969, ICJ Reports (1969), 3; Sentencia del Tribunal Supremo, Telefo´nica de Espan de Medio Ambiente, 1341/2004, available at: www.poderjudicial.es/search/doAction?action=contentpdf&databasematch=TS&reference=97398&links=Telef%F3nica%20S.A.&optimize=20080710&publicinterface=true Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘All States are entitled to lay submarine cables and pipelines on the continental shelf, in accordance with the provisions of this article.’. . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘reasonable measures’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘reduction and control of pollution from pipelines’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. ‘The delineation of the course for the laying of such pipelines on the continental shelf is subject to the consent of the coastal State.’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. ‘the right of the coastal State to establish conditions for cables and pipelines entering its territory or territorial sea, or its jurisdiction over cables and pipelines constructed or used in connection with the exploration of its continental shelf or exploitation of its resources or the operations of artificial islands, installations and structures under its jurisdiction.’ . . . . . . . . . . . . . . . . . . . . . . 6. ‘due regard to cables or pipelines already in position.’. . . . . . . . . . . . . . . . . . . . . . . . . . .

1 4 15 15 20 21 23

24 28

I. Purpose and Function The significance of submarine cables has been recognised since the first submarine 1 telegraph cable had been laid in 1850. Nowadays, the global network of submarine fibre optic cables connects States, continents and islands, and transmits vast amounts of communication and information data, foremost enabling our daily internet connection. 1 Irrespective 1 For a general overview on the development and significance of submarine cables, see Douglas Burnett/Tara Davenport/Robert Beckmann, Introduction: Why Submarine Cables?, in: Douglas R. Burnett/Robert C. Beckmann/Tara M. Davenport (eds.), Submarine Cables: The Handbook of Law and Policy (2014), 1, 1–15. For the recent acknowledgment of the global significance of submarine cables, see GA Res. 70/235 of 23 December 2015.

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of the evident importance of the internet for our everyday life, there has been little public awareness of the physical vulnerability of this global infrastructure underlying our crucial communication and internet system. Solely events in the media, such as the WikiLeaks scandal in 2010, increase public attention, at least for the moment of their appearance. 2 2 The coastal State enjoys sovereign rights over its continental shelf as far as exploration or exploitation of natural resources are concerned (Art. 77); other than that, the provisions regulating the high seas remain applicable. The general freedom of States to lay submarine cables and pipelines on the high seas is set out in Art. 87 (1)(c). It explicitly stipulates that the freedom is subject to Part VI; in this respect, Art. 79 is particularly relevant. Art. 79 expressiv verbis reaffirms the right of all States to lay submarine cables and pipelines on the continental shelf of any State. At the same time, it provides specific regulations for the continental shelf in order to accommodate the interests of coastal States and States laying submarine cables or pipelines.3 Along with Art. 112, which addresses the right of States to lay submarine cables and pipelines on the bed of the high seas beyond the continental shelf, the provisions ensure the freedom contained in Art. 87 (1)(c). 3 Art. 79 constitutes one of several provisions in UNCLOS which addresses submarine cables and pipelines together. Although submarine cables and pipelines are distinct in design and function, the International Law Commission (ILC) extended its regulations regarding submarine cables to submarine pipelines.4 Likewise, UNCLOS largely regulates submarine cables and pipelines together and in the same provision.

II. Historical Background In the 19th century, significant technological developments in the field of telecommunications led to an increasing international awareness of the necessity to protect cables as a critical means for transmitting communication data on the international plane, especially against attack or damage.5 Against this background, an early international agreement to protect submarine communication cables was reached with the adoption of the 1884 Convention for the Protection of Submarine Telegraph Cables.6 Its main objective was to require States to adopt national laws for the protection of submarine communication cables, and its provisions are considered to at least partially reflect customary international law.7 5 The use and importance of submarine cables significantly increased in the beginning of the 20th century. By the time the ILC began the work on its Draft Articles on the Law of the Sea, 4

2 Cf. Yoshinobu Takei, Law and Policy for International Submarine Cables: An Asia-Pacific Perspective, Asian Journal of International Law 2 (2012), 205, 205. 3 See Rainer Lagoni, Pipelines, MPEPIL, para. 14, available at: www.mpepil.com; Tara Davenport, Submarine Cables and Law of the Sea: Problems in Law and Practice, ODIL 43 (2012), 201, 208. 4 According to Lagoni (note 3), para. 9, the ILC regulated submarine cables and pipelines together since it ‘considered both as means of communication’. 5 Stewart Ash, The Development of Submarine Cables, in: Burnett/Beckmann/Davenport (note 1), 19, 19–28; Douglas R. Burnett/Robert C. Beckmann/Tara M. Davenport, Overview of the International Legal Regime Governing Submarine Cables, in: Burnett/Beckmann/Davenport (note 1), 63, 64; Wolff Heintschel von Heinegg, Protecting Critical Submarine Cyber Infrastructure: Legal Status and Protection of Submarine Communication Cables under International Law, in: Katharina Ziolkowski (ed.), Peacetime Regime for State Activities in Cyberspace. International Law, International Relations and Diplomacy (2013), 291, 296. 6 Convention for the Protection of Submarine Telegraph Cables, adopted 14 March 1884, TS 380 (entered into force 1 May 1888). For further information on this convention, see Burnett/Beckmann/Davenport (note 5), 65–69. 7 See Heintschel von Heinegg (note 5), 297, who considers all provisions to reflect customary international law, whereas Robert C. Beckmann, Submarine Cables: A Critically Important but Neglected Area of the Law of the Sea (2010), 3, available at: http://cil.nus.edu.sg/wp/wp-content/uploads/2010/01/Beckman-PDF-ISIL-SubmarineCables-rev-8-Jan-10.pdf, assumes that only those provisions that were later adopted in subsequent treaties could reflect customary international law. Irrespective of the question of its customary nature, the convention remains in force for its thirty-seven parties.

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submarine cables did not merely transmit telegraphic communication data, but moreover facilitated global telephonic communication.8 Additionally, the ILC explicitly referred to further types of submarine cables in its work, such as submarine high voltage power cables. 9 The protection of submarine cables thus remained crucial and was discussed considerably by the ILC during its sessions.10 In this context, it was debated whether the provisions of the 1884 Convention for the Protection of Submarine Telegraph Cables should be incorporated; in the end, only Arts. II and IV, dealing with the breakage or injury of cables, as well as Art. V, concerned with the protection of cableships, were included. 11 The utilisation of submarine pipelines emerged later than submarine cables. The first 6 submarine pipelines were laid off the coast of Haifa, Tripolis and in the Persian Gulf in 1934.12 Unlike submarine telegraph cables, submarine pipelines were not regulated internationally prior to UNCLOS I. In the ILC Draft Articles on the Law of the Sea of 1956, Art. 70 was concerned with the 7 laying and maintenance of submarine cables on the continental shelf. Unlike Art. 61 of the draft articles, which addressed submarine cables and pipelines on the bed of the high seas, Art. 70 merely referred to submarine cables and disregarded submarine pipelines. 13 However, beyond the limitation of Art. 70 to submarine cables, both provisions showed great similarities. As a consequence, the Second and Fourth Committees at UNCLOS I discussed in how far Arts. 61 (2) and 70 were necessary or whether either one could suffice by itself. 14 In this respect, several States pointed out that it was unclear whether Art. 61 (2) was going to be adopted, and therefore caution should be exercised to declare Art. 70 as redundant at this early stage.15 Ultimately, separate provisions were included in the 1958 Convention on the Continental 8 Shelf (CSC) and the 1958 Convention on the High Seas (CHS). The wording of Art. 4 CSC was expanded to include submarine pipelines; the remaining part corresponds to Art. 70 of the 1956 ILC draft articles. It reads: ‘Subject to its right to take reasonable measures for the exploration of the continental shelf and the exploitation of its natural resources, the coastal State may not impede the laying or maintenance of submarine cables or pipelines on the continental shelf.’

Additionally, Art. 26 CHS, which addresses submarine cables and pipelines on the bed of the 9 high seas, was applicable to submarine cables and pipelines on the continental shelf.16 It reads: 8

Burnett/Beckmann/Davenport (note 5), 69. ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12, 38–39 (Commentary to Art. 61). Note that the explicit remark was made with regard to Art. 61 of the draft articles and thus in the context of submarine cables on the bed of the high seas. Since the continental shelf was at that time considered part of the bed of the high seas, the necessity of a concurrent interpretation of the notion ‘submarine cables’ that are laid on the continental shelf was evident. 10 ILC, Summary Records if the Third Session, ILC Yearbook (1951), vol. I, 363. 11 The provisions were incorporated in Arts. 27–29 of the 1958 Convention on the High Seas. Since not all provisions had been incorporated, it has been argued that those provisions that were not included could not reflect customary international law. See Beckmann (note 7), 3. 12 Rainer Lagoni, Festlandsockel und ausschließliche Wirtschaftszone, in: Wolfgang Graf Vitzthum (ed.), Handbuch des Seerechts (2006), 161, 201–202. 13 ILC Law of the Sea Articles with Commentaries (note 9), 41 (Art. 70). 14 UNCLOS I, Summary Records of the 26th to 30th Meetings of the Fourth Committee, UN Doc. A/ CONF.13/C.4/SR.26-30 (1958), OR VI, 73, 78 (27th Meeting, paras. 5–55). See also UNCLOS I, Summary Records of the 11th to 15th Meetings of the Second Committee, UN Doc. A/CONF.13/C.2/SR.11-15 (1958), OR VI, 23, 30 (13th Meeting, paras. 10–26) UNCLOS I, Summary Records of the 31st to 37th Meetings of the Second Committee, UN Doc. A/CONF.13/c.2/SR.31-37 (1958), OR IV, 90, 94 (32nd Meeting, paras. 1–9). 15 Summary Records of the 26th to 30th Meetings of the Fourth Committee (note 14), 78 (27th Meeting, paras. 11, 13, 21, 23, 32, 38 and 46). 16 The CHS was applicable since the continental shelf was considered part of the bed of the high seas. Myron H. Nordquist/Sataya N. Nandan/Louis B. Sohn (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 910. 9

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‘1. All States shall be entitled to lay submarine cables and pipelines on the bed of the high seas. 2. Subject to its right to take reasonable measures for the exploration of the continental shelf and the exploitation of its natural resources, the coastal State may not impede the laying or maintenance of such cables and pipelines. 3. When laying such cables or pipelines the State in question shall pay due regard to cables or pipelines already in position on the seabed. In particular, possibilities of repairing existing cables or pipelines shall not be prejudiced.’

10

11

12

13

14

Art. 26 (2) CHS was taken verbatim from the 1956 ILC draft articles. With respect to this paragraph, the ILC remarked in its Commentary that ‘in order to avoid unjustified interference with the exploitation of the natural resources of the seabed and subsoil, it [the coastal State] may impose conditions concerning the route [of submarine cables and pipelines] to be followed.’17 The controversy as to whether the coastal State should have the right to impose conditions with regard to the route of submarine cables and pipelines, which had already emerged during the discussions at UNCLOS I, remained relevant in the course of the subsequent negotiations.18 At the 1973 session of the Sea-Bed Committee, China proposed that the route for laying submarine cables and pipelines on the continental shelf should be subject to the consent of the coastal State, constituting the first proposal of a State to incorporate the suggestion of the ILC to include a costal State’s right to impose conditions in this regard.19 At UNCLOS III in 1974, Provision 72 Formula C in the Main Trends Working Paper additionally included that a coastal State may impede the laying or repair of submarine cables and pipelines if the impediment constitutes a reasonable measure for the prevention of pollution.20 In 1975 at the Third Session of the Conference, Art. 6 of the final revision of the texts on the continental shelf produced by the Evensen Group limited the wording in regard to the imposition of conditions as to the route as well as reasonable measures for the prevention of pollution to activities concerning submarine pipelines.21 The provision regulating submarine cables and pipelines on the continental shelf for the most part reached its final version in the Informal Composite Negotiating Text in 1977, renumbered as Art. 79.22 Remarkably, the provisions regulating submarine cables (and pipelines) were incorporated into UNCLOS during a time where the significance of submarine communication cables diminished considerably as most communication data was transmitted by satellite connection.23 It was due to the contact between the cable industry and their respective delegations to the negotiations of UNCLOS that the representatives were aware of the considerable technological developments in the field of fibre optic cables and its potential impact on the future of the global communication technology, which encouraged maintaining certain provisions on submarine cables.24

17

ILC Law of the Sea Articles with Commentaries (note 9), 41 (Art. 70). For the discussions during UNCLOS I, see Summary Records of the 26th to 30th Meetings of the Fourth Committee (note 14), 78 (27th Meeting, paras. 16, 33, 35, 37, 43 and 47). 19 Sea-Bed Committee, Working Paper Submitted by the Chinese Delegation: Sea Area within the Limits of National Jurisdiction, UN Doc. A/AC.138/SC.II/L.34 (1973), GAOR 26th Sess. Suppl. 21 (A/9021-III), 71, 74. 20 UNCLOS III, Statement of Activities of the Conference During its First and Second Sessions, UN Doc. A/ CONF.62/L.8/REV.1 (1974), OR III, 93, 107, 118 (Annex II, Appendix I [A/CONF.62/C.2/WP.1], Provision 72). 21 UNCLOS III, Art. 6 (Informal Group of Juridical Experts) (1975, mimeo.), reproduced in Renate Platzo ¨ der (ed.), Third United Nations Conference on the Law of the Sea: Documents, vol. XI (1987), 502. 22 UNCLOS III, Informal Composite Negotiating Text, UN Doc. A/CONF.62/WP.10 (1977), OR VIII, 1, 17. 23 On the historical background of the development of the communication infrastructure after 1986, see Ash (note 5), 33–39. 24 Burnett/Beckmann/Davenport (note 5), 74–75. 18

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III. Elements 1. ‘All States are entitled to lay submarine cables and pipelines on the continental shelf, in accordance with the provisions of this article.’ Art. 79 (1) entitles ‘all States’ to lay submarine cables and pipelines on the continental shelf. Congruent with the interpretation of Art. 112 (1), the expression ‘all States’ has to be understood broadly in a way that it can also include the nationals of States who are in fact laying submarine cables and pipelines on the continental shelf.25 UNCLOS provides neither a definition of submarine cables nor submarine pipelines. The generic notion ‘submarine cables’ is to be understood broadly in order to be flexible enough to adapt to future technological developments. The Oxford Dictionary describes a ‘cable’ as ‘an insulated wire or wires having a protective casing and used for transmitting electricity or communication signals’.26 Although no explicit definition has been provided in the Convention, the historical documents confirm that the notion ‘submarine cables’ as used in UNCLOS includes different types and designs of underwater wires, serving different purposes and using different technologies.27 In its work, the ILC mentioned specific types of potential submarine cables in the context of Art. 61 of the Draft Articles on the Law of the Sea, namely ‘telegraph and telephone cables, but also […] high-voltage power cables.’ 28 Moreover, it is generally assumed that submarine cables in terms of UNCLOS can serve purposes beyond transmitting telecommunication data or electricity, such as marine scientific research or military cables.29 In addition, submarine cables can use different technologies: The first communication cables still transmitted electrical signals on a copper wire, whereas nowadays communication cables send light impulses through fibre optic cables.30 It has not been doubted that both types of cables are encompassed by the term ‘submarine cables’. In comparison to submarine cables, submarine pipelines are considered to pose a greater threat to the marine environment.31 A submarine pipeline has been defined as ‘a line of pipes for conveying water, gas, oil, etc. under water.’32 Essential pump installations constitute an integral part of the pipeline, with the consequence that the provisions regulating submarine pipelines govern the pump installations and the regulations governing installations and structures do not apply.33 In general, submarine cables and pipelines are not considered installations and structures in terms of UNCLOS, and the Convention provides different pertinent regulations for them. 34 On 25 Myron H. Nordquist/Sataya N. Nandan/Louis B. Sohn (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995), 264. For the elaboration on the notion ‘all States’ in Art. 112 (1), see Guilfoyle/Miles on Art. 112 MN 7. 26 Angus Stevenson (ed.), Oxford Dictionary of English (3rd edn. 2010), 243. 27 Heintschel von Heinegg (note 5), 296–297. 28 ILC Law of the Sea Articles with Commentaries (note 9), 38–39 (Art. 71).Note that the Convention text generally uses the generic term ‘submarine cables’ except for Art. 113. 29 Lagoni (note 12), 203. For further information, see also Lionel Carter/Alfred H. A. Soons, Marine Scientific Research Cables, in: Burnett/Beckmann/Davenport (note 1), 323, 323–337; J. Ashley Roach, Military Cables, in: Burnett/Beckmann/Davenport (note 1), 339, 339–349. 30 On the technological development of telegraphic and telecommunication cables, see for example Ash (note 5), 19–39. 31 Beckmann (note 7), 6; Lagoni (note 3), para. 9. 32 George K. Walker (ed.), Definitions for the Law of the Sea. Terms Not Defined by the 1982 Convention (2012), 313. See also Lagoni (note 3), para. 9, who describes that ‘submarine pipelines are distinct from submarine cables because they are used for the transport of liquids or gas, whereas cables serve the transmission of energy and telecommunications’. 33 Lagoni (note 12), 205. 34 See Lagoni (note 3), para. 10; Takei (note 2), 209. For a more differentiated view on ‘[t]he applicability of the concept of artificial installations and structures to submarine cables’, see Alexander Lott, Marine Environmental Protection and Transboundary Pipeline Projects: A Case Study of the Nord Stream Pipeline, Merkourious – International and European Environmental Law 27 (2011), 55, 57.

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the continental shelf, the coastal State has the exclusive right to construct and to authorise installations and structures, whereas all States enjoy the right to lay submarine cables and pipelines.35 19 Art. 79 (1) affirms the right of all States to lay submarine cables and pipelines on the continental shelf.36 Although the wording in Art. 79 (1) merely provides that States are entitled to lay submarine cables and pipelines, it can be assumed that the provision also includes the right to maintain and repair them.37 This follows from a systematic interpretation of Art. 79 (1), as it is apparent that the remaining paragraphs in Art. 79 presume that the right to repair and maintain submarine cables and pipelines is necessarily included.38 In this respect, the laying of submarine cables and pipelines necessarily refers to new cables and pipelines, whereas maintenance refers to either new or already existing cables and pipelines.39

2. ‘reasonable measures’ 20

Art. 79 (2) provides that the coastal State may take ‘reasonable measures’. It is not further explained what is considered reasonable or what criteria should be applied to determine the reasonableness.40 The vagueness of the notion was addressed during the ILC negotiations.41 In this regard, it was noted that ‘[s]ince it was impossible to foresee all the situations that might arise with regard to article 70 [of the 1956 ILC draft articles], no more definite criterion than that of reasonableness could be established for the measures which

35

Arts. 60 and 80 UNCLOS. Submarine cables are either laid on the seabed or buried in its subsoil. ‘The right to lay submarine cables’ covers both installation methods. See, however, Takei (note 2), 208, who proposes that ‘differences in purpose and installation method may lead to the need for different types of regulatory measures.’ 37 On the extent of the right to conduct cable route surveys on the continental shelf, see Beckmann (note 7), 9– 10. See also Heintschel von Heinegg (note 5), 302–304, who requests to include the right to replace existing submarine cables. 38 See Beckmann (note 7), 6; Lagoni, Legal Aspects of Submarine High Voltage Direct Current (HVDC) Cables (1998), 18; Umberto Leanza, Marine Scientific Research and the Right to Lay Submarine Cables and Pipelines, in: Norman A. Martı´nez Gutie´rrez, Serving the Rule of Maritime Law. Essays in Honour of Professor David Joseph Attard (2010), 129, 131. See also Burnett/Beckmann/Davenport (note 5), 79. 39 Nordquist/Nandan/Sohn (note 16), 915. 40 See Lagoni (note 12), 208, who points out that the scope of the right to take reasonable measures depends on the circumstances of each individual case. On the critical question whether the coastal State may apply domestic laws on conservation measures, such as for example marine protected areas, to submarine pipelines on its continental shelf, see: Alexander Proelss, Pipelines and Protected Sea Areas, in: Richard Caddell/Rhidian Thomas (eds.), Shipping, Law and the Marine Environment in the 21 Century: Emerging Challenges for the Law of the Sea – Legal Implications and Liabilities, 283–292. For further elaborations on reasonable measures in terms of Art. 79 (2), see for example Beckmann (note 7), 6, who is of the opinion that ‘it would seem reasonable for a coastal State to impose restrictions on the laying of cables in its richest fishing grounds or coral reef areas in its EEZ and to put restrictions on the laying of cables in areas designated for off-shore exploration for oil and gas.’ Additionally he argues that it follows from a systematic interpretation of paragraph 3 that the reasonable measure must not include a consent requirement for the delineation of the route of submarine cables. See also note 55. Furthermore, see Heintschel von Heinegg (note 5), 306, who suggests that ‘a measure would be unreasonable, if it resulted in the impossibility of laying a submarine cable, or if the costs would increase disproportionally’ or in case of ‘a measure of a discriminatory character’. See also Davenport (note 3), 212–214, on a discussion whether the requirement of permits for laying or repairing submarine cables or surveying cable routes can be considered ‘reasonable measures’ in terms of Art. 79 (2), and whether environmental measures on the continental shelf, such as the designation of marine protected areas, can be imposed on submarine cable operations in accordance with Art. 79. On the question whether a systematic interpretation of paragraph 3 implies that a reasonable measure must not include a consent requirement for the delineation of the route of submarine cables, see note 55. 41 UNCLOS I, Summary Records of the 1st to 5th Meetings of the Fourth Committee, UN Doc. A/AC.13/C.4/ SR.1-5 (1958), OR IV, 1, 2 (4th Meeting, para. 8); UNCLOS I, Summary Records of the 6th to 10th Meetings of the Fourth Committee, UN Doc. A/AC.13/C.4/SR.6-10 (1958), OR IV, 7, 9 (7th Meeting, para. 4); ibid., 19 (10th Meeting, para. 33); Summary Records of the 26th to 30th Meetings of the Fourth Committee (note 14), 27th Meeting, para. 28. 36

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coastal States might take.’42 It was also pointed out that ‘similarly vague expressions, equally open to interpretation, were used in private law.’43 Beyond the reasonable measures in terms of paragraph 2, the coastal State may not impede the laying, repair or maintenance of submarine cables and pipelines. The prohibition to impede their laying and maintenance is considered to be part of customary international law, as was confirmed by the International Court of Justice (ICJ) in the North Sea Continental Shelf Cases with respect to the predecessor provision Art. 4 (2) CSC.44

3. ‘reduction and control of pollution from pipelines’ Art. 79 (2) is one of two paragraphs within Art. 79 where the Convention text differ- 21 entiates between submarine cables and pipelines.45 According to Art. 79 (2), the coastal State may not impede the laying and maintenance of submarine cables and pipelines ‘subject to its right to take reasonable measures for the exploration of the continental shelf [and] the exploitation of its natural resources’. Only with respect to submarine pipelines the paragraph further stipulates that the coastal State may subject pipeline operations to ‘reasonable measures for the […] reduction and control of pollution from pipelines’. 46 This provision reflects the assumption that submarine cables, unlike submarine pipelines, do not pose a considerable threat to the marine environment. 47 The primary risk in connection with submarine pipelines is posed by their ecologically sensitive contents, such as oil or gas, which in case of damage can lead to a severe disturbance of the marine ecosystem.48 In this context, Art. 208 provides further specific regulations addressing pollution from seabed activities subject to national jurisdiction. 49 However, it has been suggested that: ‘[i]n congested areas, the repair of submarine cables, in particular, might lead to damage to existing submarine pipelines and consequent pollution from these pipelines, if conducted without due care. In view of such possibilities, coastal states should be entitled to take reasonable measures to prevent, reduce, and control pollution from pipelines in relation not only to the laying and repairs of submarine pipelines, but also to submarine cables under Article 79(2).’50

42 Miss Whiteman (Representative of the USA): UNCLOS I, Summary Records of the 26th to 30th Meetings of the Fourth Committee, UN Doc. A/CONF.13/C.4/SR.26-30 (1958), OR VI, 73, 78 (27th Meeting, para. 28). 43 Mr. Alvarez Aybar (Representative of the Dominican Republic): Summary Records of the 6th to 10th Meetings of the Fourth Committee (note 42), 9 (7th Meeting, para. 4). 44 ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Netherlands/Denmark), Judgment of 20 February 1969, ICJ Reports (1969), 3, 39 (para. 65). 45 See also Art. 79 (3). 46 Certainly ships laying cables could be concerned since measures preventing pollution can address all types of vessels. Davenport (note 3), 213. 47 Beckmann (note 7), 6; Burnett/Beckmann/Davenport (note 5), 81; Lagoni (note 3), para. 9. For a closer analysis of the environmental impact of submarine cables, see the Report of the United Nations Environment Program (UNEP) and the International Cable Protection Committee (ICPC), which analyses the effects of submarine cables on the marine environment. Lionel Carter et al., Submarine Cables and the Oceans: Connecting the World, Report of the ICPC/UNEP/UNEP-WCMC (2009), available at: www.iscpc.org/documents/?id=132. Note, however, that a distinction between submarine communication and submarine power cables might be necessary. Cf. Alan Simcock, Chapter 19: Submarine Cables and Pipelines, in: Lorna Inniss et al., The First Global Integrated Marine Assessment: World Ocean Assessment I (2016), available at: http://www.un.org/Depts/los/ global_reporting/WOA_RPROC/WOACompilation.pdf. 48 See also Proelss (note 40), 276, who emphasises that ‘the risk of losing benthic habitats as a result of largescale shifting of sediments while pipelines are being laid must not be underestimated’. 49 Nordquist/Nandan/Sohn (note 16), 915. 50 Takei (note 2), 211.

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Unlike the removal of abandoned or disused offshore installations or structures, 51 there is no general rule on disused submarine cables or pipelines.52 The abandonment of unused submarine cables or pipelines is not considered dumping.53

4. ‘The delineation of the course for the laying of such pipelines on the continental shelf is subject to the consent of the coastal State.’ 23

The route selection for the laying of submarine cables and pipelines is an essential part of the comprehensive laying operations.54 According to Art. 79 (3), the delineation of the submarine pipeline route is subject to the consent of the coastal State. Alongside paragraph 2, Art. 79 (3) provides specific regulation only concerning submarine pipelines. 55 Argumentum e contrario, the delineation of the course for laying submarine cables must not be subject to the consent of the coastal State. As can be seen from the travaux pre´paratoires, the delineation of the course for the laying of submarine cables was explicitly proposed and discussed during the negotiations but ultimately deliberately omitted in the Convention text.56 Although the coastal State has a wide discretion when it comes to the route of the submarine pipeline, it must not result in the right of the laying State being completely without effect.57

5. ‘the right of the coastal State to establish conditions for cables and pipelines entering its territory or territorial sea, or its jurisdiction over cables and pipelines constructed or used in connection with the exploration of its continental shelf or exploitation of its resources or the operations of artificial islands, installations and structures under its jurisdiction.’ 24

Art. 79 (4) provides additional rights of coastal States to regulate submarine cables and pipelines on their continental shelves and thus makes the freedom to lay submarine cables and pipelines subject to further restrictions. The paragraph addresses two distinct matters:58 first, ‘the right of the coastal State to establish conditions for cables and pipelines entering its territory or territorial sea’; and second, the coastal State’s ‘jurisdiction over 51

Art. 60 (3). J. M. Anderson, Decommissioning Pipelines and Subsea Equipment: Legislative Issues and Decommissioning Processes, The International Journal of the Society for Underwater Technology 25(2) (2002), 105, 107. There are, however, other international treaties or national laws regulating especially the leaving of unused submarine pipelines, see for example Annex III Art. 5 (1) OSPAR. On the question whether marine protected areas such as OSPAR can regulate the laying and operation of submarine cables beyond the territorial sea, see Lionel Carter/ Douglas Burnett/Tara Davenport, The Relationship between Submarine Cables and the Environment, in: Burnett/ Beckmann/Davenport (note 1), 179, 207–212. 53 Art. 1 (4.2.2) 1996 Protocol to the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, adopted 7 November 1996, 2006 ATS 11 (entered into force 24 March 2006). See also Douglas Burnett, Out-of-Service Submarine Cables, in: Burnett/Beckmann/Davenport (note 1), 213, 219–220. 54 With respect to submarine cables, see Graham Evans/Monique Page, The Planning and Surveying of Submarine Cable Routes, in: Burnett/Beckmann/Davenport (note 1), 93, 94–95. The same general considerations apply to submarine pipelines. 55 See Takei (note 2), 212–213, who is of the opinion that, inter alia, Art. 79 (4) can entitle the coastal State to establish conditions for the route of submarine cables on the continental shelf that enter its territorial sea. See also Lagoni (note 40), 21, who argues that the coastal State may at least indirectly influence the landing cable route by determining the landing point according to Art. 79 (4). However, see Beckmann (note 7), 7, who argues that it follows from paragraph 3 that the coastal State must not include a consent requirement for the delineation of the route of submarine cables; accordingly this includes that a reasonable measure in terms of paragraph 2 may not regulate the course of submarine pipelines. 56 See note 18. Nonetheless, as highlighted by Davenport (note 3), 212, as well as Takei (note 2), 213–214, several coastal States have adopted national laws and regulations requiring its consent for the route of submarine cables. 57 Lagoni (note 3), para. 14. 58 Nordquist/Nandan/Sohn (note 16), 915. 52

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cables and pipelines constructed or used in connection with the exploration of its continental shelf or exploitation of its resources or the operations of artificial islands, installations and structures under its jurisdiction.’ The first part addresses the coastal State’s sovereignty over its territorial sea and territory, whereas the second concerns the coastal State’s sovereign rights over the natural resources located on its continental shelf. 59 The first part affirms the coastal State’s right to establish conditions beyond resource- 25 related matters for submarine cables and pipelines entering its territory or territorial sea in accordance with the principle that the coastal State enjoys sovereignty in these areas. 60 The additional conditions may only apply to the cables and pipelines within the coastal State’s territory or territorial sea. It has been pointed out that the wording of Art. 79 (4) could be interpreted in such a way that the respective additional conditions that are being established in respect of cables and pipelines in the territorial sea or territory of the coastal State could extend to apply to the part of the submarine cable or pipeline laying on the continental shelf.61 However, as has been emphasised ‘such an interpretation would defeat the purpose of allowing the coastal State to only subject the laying and repair of submarine cables on the continental shelf to “reasonable measures for the exploration of the continental shelf and the exploitation of its natural resources” […] and would allow the coastal State to delineate the cable route, which is expressly not allowed’. 62

Some coastal States have adopted national legislation contrary to Art. 79 (4). 63 In this 26 context, the Spanish Supreme Court has decided that the Spanish Ministry of the Environment was not entitled to impose a fee on submarine telecommunication cables beyond Spain’s territorial sea.64 The second part of Art. 79 (4) provides that coastal States still enjoy ‘jurisdiction over 27 cables and pipelines constructed or used in connection with the exploration of its continental shelf or exploitation of its resources or the operations of artificial islands, installations and structures under its jurisdiction.’ Submarine cables and pipelines directly connecting different States do not generally fall under Art. 79 (4). However, these cables and pipelines can fall into its scope if they also connect, for example, platforms or installations such as offshore windfarms that are under the jurisdiction of the coastal State. 65

6. ‘due regard to cables or pipelines already in position.’ Art. 79 (5) protects existing submarine cables and pipelines. It provides that States ‘shall 28 have due regard to cables and pipelines already in position.’66 Art. 79 (5) applies to the high seas.67 In this respect, it has been noted that ‘[t]his obligation is similar to that one relating to the high seas as provided for in Art. 112 (2) UNCLOS […]. But on the continental shelf the protection of such cables and pipelines vis-à-vis the laying of new ones goes beyond this general obligation.’68 Additionally, when exercising the right to lay, repair or maintain

59

Ibid. Lagoni (note 40), 18, refers to those cables as ‘landing cables’ in contrast to ‘transit cables’. See also Proelss (note 40), 287–291. 61 Beckmann (note 7), 7. 62 Burnett/Beckmann/Davenport (note 5), 83. Regarding the debate on whether the coastal State can influence the route of submarine cables, see note 55. 63 Davenport (note 3), 211–212. ~a, S.A. v. Ministro de Medio Ambiente, 1341/2004, 3, 64 Sentencia del Tribunal Supremo, Telefo ´ nica de Espan available at: www.poderjudicial.es/search/doAction?action=contentpdf&databasematch=TS&reference=97398&links=Telef%F3nica%20S.A.&optimize=20080710&publicinterface=true (in Spanish). 65 Burnett/Beckmann/Davenport (note 5), 83. 66 See Lagoni (note 39), 22, who writes in regard to Art. 79 (5) that due regard shall be exercised by ‘[t]he owner of a submarine cable that is being laid on the continental shelf’. (emphasis added). 67 Art. 112 (2). The remaining paragraphs of Art. 79 do not apply. Takei (note 2), 215. 68 See Lagoni (note 40), 22. 60

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submarine cables and pipelines on the continental shelf, the State exercising that right also has to pay due regard to further interests of other States and their internationally lawful uses of the sea in this area.69

Article 80 Artificial islands, installations and structures on the continental shelf Article 60 applies mutatis mutandis to artificial islands, installations and structures on the continental shelf Bibliography: Robert Beckman, Global Legal Regime on the Decommissioning of Offshore Installations and Structures, in: Myron H. Nordquist/John Norton Moore/Aldo Chircop/Rona´n Long (eds.) The Regulation of Continental Shelf Development: Rethinking International Standards (2013), 259–281; Rene Jean Dupuy/Daniel Vignes (eds.), A Handbook on the New Law of the Sea, vol. 1 (1991); Peter Ehlers, Baltic Sea, MPEPIL, available at http://www.mpepil.com; Alex G. Oude Elferink, Artificial Islands, Installations and Structures, MPEPIL, available at: http://www.mpepil.com; Andreas Kannen/Hartwig Kremer/Kira Gee/Marcus Lange, Renewable Energy and Marine Spatial Planning: Scientific and Legal Implications, in Myron H. Nordquist/John Norton Moore/Aldo Chircop/Rona´n Long (eds.) The Regulation of Continental Shelf Development: Rethinking International Standards (2013), 153–178; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Nikos Papadakis, The International Legal Regime of Artificial Islands (1977); Tullio Treves, Military Installations on the Seabed, AJIL 74 (1980), 808–857 Documents: Baltic Master, Offshore Windfarm Development and the Issue of Maritime Safety (2007), available at: http://www.balticmaster.org/media/files/general_files_713.pdf; European Wind Energy Association, Enabling Offshore Wind Developments (2012), 114–115, available at: http://www2.ewea.org/documents/offshore%20%20EWEA%20version%20.pdf; ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4–12; ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45; IMO, Guidelines and Standards for the Removal of Offshore Installations and Structures on the Continental Shelf and in the Exclusive Economic Zone, IMO Res. A.672(16) of 19 October 1989 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘Article 60 applies mutatis mutandis’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘artificial islands, installations and structures’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘on the continental shelf’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Military installations and structures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Offshore wind farms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 5 10 10 12 15 16 17

I. Purpose and Function 1

Through its application of Art. 60, Art. 80 sets out the exclusive right of the coastal State to construct, authorise and regulate the construction, operation and use of artificial islands, installations and structures (Art. 60 (1)) on the continental shelf. In relation to installations and structures, this right is exclusive to coastal States for the purposes of exploration and exploitation, conservation, and management of natural resources, whether living or nonliving (Art. 56 (1)(a)), and for other economic purposes (Art. 60 (1)(b)). In regards to artificial islands (Art. 60 (1)(a)), and installations and structures constructed by other States which may interfere with the exercise of the rights of the coastal State (Art. 60 (1) (c)), the exclusive right of the coastal State is not limited to such purposes. 69 Art. 78 (2). With respect to submarine pipelines, see Lagoni (note 3), para. 15. The same considerations apply to submarine cables. Note that the laying, repairing or maintenance of submarine cables and pipelines must not interfere with the rights of other States on the continental shelf or in the superjacent waters (EEZ).

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Art. 60 grants coastal States these exclusive rights in relation to the exclusive economic 2 zone (EEZ), which may be claimed up to a 200 NM limit from the baselines from which the breadth of the territorial sea is drawn (� Art. 57; Arts. 5–7). Thus, Art. 80 applies de facto only in situations where the coastal State has not claimed an EEZ, or where the continental shelf of the coastal State extends beyond the claimed EEZ.1 Where the coastal State has not claimed an EEZ or the continental Shelf extends beyond the EEZ, the superjacent waters to the continental shelf are high seas (� Art. 86). On the high seas, Art. 87 (1)(d) lays out that all States have the freedom to construct artificial islands and other installations permitted in international law subject to the provisions of Part VI of the Convention. The invocation of Part VI on the continental shelf ensures that the exclusive right of coastal States contained in Art. 80 continues to apply in such areas. Art. 60 furthermore lays out a regime for artificial islands, installations and structures in 3 the EEZ which, through Art. 80, also applies to such constructions on the continental shelf beyond the EEZ, or where there is no EEZ. This regime includes jurisdictional and navigational issues, alongside the obligation to remove any installations which are abandoned and disused. The exclusive right of coastal States in regard to artificial islands, installations and 4 structures on the continental shelf, as laid out in Arts. 60 and 80, serves to strengthen the right contained in Art. 77 (1) to explore and exploit the natural resources of the continental shelf2 through its facilitation.

II. Historical Background The content of Art. 80, by way of application of Art. 60 to the continental shelf, finds it 5 genesis in Art. 5 of the 1958 Geneva Convention on the Continental Shelf (CSC). The CSC was itself negotiated on the basis of the 1956 International Law Commission (ILC) Draft Articles concerning the Law of the Sea.3 In the ILC’s commentaries to the draft articles, following arguments put forward by governments, it was recognised that ‘the coastal State may exercise control and jurisdiction over the continental shelf, with the proviso that such control and jurisdiction be exercised solely for the purposes of exploiting its resources.’4 On this basis, Art. 71 (2) of the ILC Articles read, in its operative part, ‘the coastal State is entitled to construct and maintain on the continental shelf installations necessary for the exploration and exploitation of its resources’5. Upon incorporation into the CSC, the formulation was broadened, stating that ‘the coastal State is entitled to construct and maintain or operate on the continental shelf installations and other devices necessary for its exploration and exploitation of its natural resources’6. Both provisions also contain rules in relation to navigation, regulation and jurisdiction for such installations.7 Art. 5 CSC then formed the basis for Art. 60 UNCLOS.8 At the Sea-Bed Committee, following a Belgian proposal, the question of artificial islands 6 was included on the list of subjects to be considered by the future conference on the law of the sea.9 The Belgian proposal further highlighted the two major problems regarding artificial 1

Art. 60 is, however, broader in scope, see infra, MN 15. See further Maggio on Art. 77 MN 18–20. 3 ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4–12. 4 ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12, 40. 5 ILC Law of the Sea Articles (note 3), 9. 6 Art. 5 (2) CSC. 7 See: Art. 5 CSC; ILC Law of the Sea Articles (note 3), 9 (Art. 71); generally Proelss on Art. 60. 8 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 920. 9 Sea-Bed Committee, Artificial Islands and Installations: Working Paper Submitted by Belgium, UN Doc. A/ AC.138/91 (1973). 2

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islands: jurisdiction over islands erected beyond the territorial sea, and how potential difficulties should be resolved in relation to navigation, fishing etc. which may arise through the construction of artificial islands.10 7 During the negotiations of the Sea-Bed Committee and at UNCLOS III, some delegations favoured a formulation that recognised the ‘exclusive right’ of coastal States in relation to this issue, rather than using the language of entitlement. 11 By the time the Second Committee produced the Main Trends Working Paper,12 the two alternate formations had developed: ‘Formula A The coastal State is entitled to construct, maintain or operate on or over the continental shelf installations and other devices necessary for the exercise of its rights over the same, to establish safety zones around such devices and installations, and to take in those zones measures necessary for their protection. Ships of all nationalities shall respect these safety zones, which may extend up to … around the installations or devices. Formula B The coastal State shall have the exclusive right to authorize and regulate on the continental shelf the construction, operation and use of artificial islands and installations for the purpose of exploration or exploitation of natural resources or for other economic purposes, and of any installations which may interfere with the exercise of the rights of the coastal State.[…].’ 13

However, at the Third Session of the Conference the development of the regime of the EEZ led to a change in the way the continental shelf in the EEZ maritime zone and the continental shelf seaward of that zone were treated.14 The development of the regime of the EEZ at UNCLOS III will be dealt with separately in this commentary.15 It is important to note here, however, that during the negotiations an attempt was made to differentiate the rights granted in the articles that were to become Arts. 60 and 80, with a more limited right of coastal States being recognised on the continental shelf beyond the limit of the EEZ.16 This approach, following a series of informal negotiations,17 was not accepted nor included in the Informal Single Negotiating Text (ISNT).18 The ISNT text read: ‘The provisions of article 48 shall apply mutatis mutandis to artificial islands, installations and structures on the continental shelf.’19 Following this, only renumbering occurred before the provision was adopted with the Convention as a whole. 9 At various stages of the negotiations proposals were put forward in order to clarify the position of artificial islands, installations and structures on the continental shelf constructed by other States for military purposes.20 A further proposal was made by the USSR that 8

10

Ibid., 1–3. See: Sea-Bed Committee, Argentina: Draft Articles, UN Doc. A/AC.138/SC.II/L.37 (1973), 4, making the permission of the coastal State necessary; Sea-Bed Committee, United States of America: Draft Articles for a Chapter on the Rights and Duties of States in the Coastal Seabed Economic Area, UN Doc. A/AC.138/SC.II/L.35 (1973), 1, with Art. 1 (3) using the term ‘exclusive right’; UNCLOS III, Tentative Draft Articles for a Convention on the Law of the Sea (1974, mimeo.), reproduced in: Renate Platzo¨ der (ed.), Third United Nations Conference on the Law of the Sea: Documents, vol. XI (1987), 393, 407–408, with two alternate formulations, one subjecting the emplacement and use of any installations by any other State to the prior authorisation by the coastal State (Art. 29, Alternative A), and the other referring to the ‘exclusive right’ of coastal States to authorise and regulate such installations (Art. 29, Alternative B). 12 UNCLOS III, Statement of Activities of the Conference during its First and Second Sessions, UN Doc, A/ CONF.62/L.8/REV.1 (1974), OR III, 93 (Annex II Appendix I, Working Paper of the Second Committee: Main Trends). 13 Ibid., 118 (Provision 74). 14 Nordquist/Nandan/Rosenne (note 8), 923. 15 See Proelss on Art. 55; and more specifically in relation to artificial islands, installations and structures, Proelss on Art. 60. 16 UNCLOS III, The Continental Shelf (1975, mimeo.), reproduced in: Platzo ¨ der (note 11), 501, 503 (Art. 8). 17 Nordquist/Nandan/Rosenne (note 8), 924. 18 UNCLOS III, Informal Single Negotiating Text, UN Doc. A/CONF.62/WP.8/PART II (1975), OR. IV, 152. 19 Ibid., 163 (Art. 66). 20 Second Committee UNCLOS III, Algeria et al.: Revised Draft Article on the Continental Shelf, UN Doc. A/ CONF.62/L.42/REV.1 (1974) OR. III, 220: ‘No State shall be entitled to construct, maintain, deploy or operate on 11

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included a peaceful purposes obligation in relation to artificial islands, installations and structures on the continental shelf.21 None of these proposals were accepted. The status of military installations on the continental shelf is addressed below. 22

III. Elements 1. ‘Article 60 applies mutatis mutandis’ The application of Art. 60 mutatis mutandis to the continental shelf through Art. 80 is of 10 relevance, as outlined above, when either the coastal State has not claimed an EEZ, or the continental shelf margin extends further than the EEZ that has been claimed. Art. 80 applies the rights contained in Art. 60 to the entire continental shelf, but these are only of relevance where Art. 60 does not apply, i. e. where there is continental shelf but no EEZ. 23 Mutatis mutandis is a Latin term meaning ‘changing what has to be changed,’ or ‘with the necessary modifications’. The necessary modifications to Art. 60 can safely be said to include replacing ‘In the exclusive economic zone’ (Art. 60 (1)) for ‘on the continental shelf’, ‘in the zone’ (Art. 60 (1)(c)) for ‘on the continental shelf’, but also include more substantial alternations.24 Art. 60, and therefore Art. 80 in its application on the continental shelf, lays out: the 11 exclusive right of coastal States to construct authorise and regulate the construction, operation and use of artificial islands (Art. 60 (1)(a)), installations and structures on the continental shelf for the purposes of exploring and exploiting its natural resources (Art. 60 (1)(b)), and installations and structures which may interfere with the exercise of rights of the coastal State on the continental shelf (Art. 60 (1)(c). Furthermore, the coastal State shall have exclusive jurisdiction over such constructions, with special mention being made of jurisdiction in regards to customs, fiscal, health, safety and immigration laws and regulations (Art. 60 (2)). In order to address the safety of navigation around such constructions, the coastal State is under obligation to give due notice of the construction of such artificial islands, installations and structures, and give warning where they will be maintained permanently (Art. 60 (2)). Any disused or abandoned structures must also be removed (Art. 60 (2)).25 There are, furthermore, recommendations and guidelines for coastal States in relation to the establishment of safety zones (Art. 60 (4) to (7)), and an obligation on all ships to respect such zones (Art. 60 (6)).26

2. ‘artificial islands, installations and structures’ The phrase ‘artificial islands, installations and structures’ appears in several other provi- 12 sions of the Convention,27 but the terms therein are not explicitly defined anywhere. It has or over the continental shelf of another State any military installations or devices or any other installations for whatever purposes without the consent of the coastal State.’; Second Committee UNCLOS III, Mexico: Article 67 bis (1976, mimeo.), reproduced in: Renate Platzo¨der (ed.), Third United Nations Conference on the Law of the Sea: Documents, vol. IV (1983), 325. 21 UNCLOS III, USSR: Informal Proposal, UN Doc. NG6/8 (1979, mimeo.), reproduced in Renate Platzo ¨ der (ed.), Third United Nations Conference on the Law of the Sea: Documents, vol. IX (1986), 377, 378 (Art. 80 (3)). 22 See infra, MN 16. 23 See infra, MN 15. 24 Ibid. 25 See also IMO, Guidelines and Standards for the Removal of Offshore Installations and Structures on the Continental Shelf and in the Exclusive Economic Zone, IMO Res. A.672(16) of 19 October 1989, for the ‘generally accepted international standards established in this regard by the competent international organization’ mentioned in Art. 60 (2); Robert Beckman, Global Legal Regime on the Decommissioning of Offshore Installations and Structures, in: Nordquist et al. (eds.) The Regulation of Continental Shelf Development: Rethinking International Standards (2013), 259–281. 26 For detailed analysis of these elements, see Proelss on Art. 60 MN 24–32. 27 Arts. 56, 79, 208, 214 and 246.

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been argued that ‘the vague and otherwise undefined designation of these items gives reason to suppose that they are designed to meet economic needs.’28 13 The term ‘artificial islands’ appears in further provisions, and, in light of the definition of islands contained in Art. 121 as ‘naturally formed area[s] of land, surrounded by water, which [are] above water at high tide’29, should be considered to apply to areas of land that are not naturally formed.30 There is significant importance31 in distinguishing artificial islands from islands as governed by the Part VIII Regime of Islands in the Convention, as islands have their own territorial sea, EEZ and continental shelf. Art. 60 (8) clarifies explicitly that artificial islands do not have the status of islands, and ‘have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, exclusive economic zone or the continental shelf.’ Artificial islands should be considered to be ‘built from man-made or natural materials that are piled on the seabed to form an area of land.’ 32 14 Installations and structures should be distinguished from artificial islands, as a separate legal regime applies to them. Whereas under Arts. 60 (1)(a) and 80 the coastal State has exclusive right to construct, authorise and regulate the construction, operation and use of artificial islands on the continental shelf and in the EEZ for all purposes, Art. 60 (1)(b) and (c) limit the right of coastal States in relation to installations and structures which have the purpose of exploring and exploiting natural resources and other economic purposes, or to installations and structures which may interfere with the exercise of the rights of the coastal State in that zone. This means that, unless interfering with the rights of the coastal State, installations or structures built by other States for the purposes of conducting marine scientific research33 or for military purposes34 in the EEZ or on the continental shelf are not subject to the exclusive right of coastal States as laid out in Art. 60 (1). What precisely constitutes an installation or a structure is a complex issue and has not been treated consistently.35

3. ‘on the continental shelf’ 15

The artificial islands, installations and structures referred to in Art. 80 must be on the continental shelf, meaning attached to the seabed. Therefore, any installations or structures beyond the limit of the EEZ, not attached to the seabed but above the continental shelf of a coastal State, are not covered by the Art. 80 but rather fall under the high seas regime, and Art. 87 particularly. This means that Art. 60 is broader in scope than Art. 80, and that its application mutatis mutandis to artificial islands installations and structures on the continental shelf is necessarily limited to such constructions that are attached to the seabed. However, as the continental shelf of some coastal States extends beyond 200 NM (� Art. 76), Art. 80 can in some respects be seen to be broader than Art. 60.

4. Military installations and structures 16

The precise status of military installations and structures on the seabed has been described as elusive, due to both the reluctance of States to directly address the issue and due to the focus of the law of the sea, particularly in the Convention, on the economic 28

Rene Jean Dupuy/Daniel Vignes (eds.), A Handbook on the New Law of the Sea, vol. 1 (1991), 280. See further Talmon on Art. 121 MN 7–26. 30 Alex G. Oude Elferink, Artificial Islands, Installations and Structures, MPEPIL, para. 3, available at: http:// www.mpepil.com. 31 Nikos Papadakis, The International Legal Regime of Artificial Islands (1977), 5. 32 Elferink (note 30), para. 5. 33 For the consent regime in relation to marine scientific research projects on the continental shelf and in the EEZ, see Huh/Nishimoto on Art. 246 MN 9–33. 34 See infra, MN 16. 35 Elferink (note 30), paras. 3, 7. Elferink states that ‘[t]heir categorization may depend on such factors as whether the unit is self-propelled or not, its mode of operation and the kind of activity being regulated. 29

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purposes of the oceans.36 Due to the language of Art. 60 (1)(a), artificial islands are subject to the authorisation of the coastal State for all purposes, including military purposes, ‘and cannot be built or operated against the coastal State’s will.’37 Where military installations or structures are constructed on the continental shelf by another State, the coastal State will have the exclusive right to authorize and regulate their construction, operation and use if they interfere with the coastal State’s exercise of their rights on the continental shelf (Art. 60 (1)(c)).38 There is no general exclusive right of coastal States recognised in the Convention in relation to installations and structures on their continental shelf or in their EEZ. This limitation of the right of the coastal State can be explained ‘by the interest of maritime States in the deployment of military devices in the exclusive economic zone of other States.’39 However, although there is no explicit restriction on the ability of States to construct installations and structures in the EEZs or on the continental shelves of other States, some States maintain that the construction or deployment of such installations is not permitted.40

5. Offshore wind farms In the current quest for increased renewable energy production capabilities, many States 17 are choosing to move wind production offshore. The wind farms that are being built are often in the territorial sea, but can and are also being constructed in the EEZ or on the continental shelf beyond the limits of the territorial sea.41 Offshore wind turbines may be attached to the seabed (invoking Art. 80), or floating (Art. 60). Art. 80, through Art. 60, lays out the exclusive right of coastal States to construct, authorise and regulate the installations and other structures on the continental shelf for the purposes provided in Art. 56 and other economic purposes. Art. 56 (1)(a) states that coastal States have rights ‘[…] with regard to other activities for the economic exploitation and exploration of the zone, such as the production from energy from water, currents and winds’.42 Therefore it is clear that where these offshore wind farms are constructed on the continental shelf (or in the EEZ) of a coastal State, this must be done with the authorisation of the coastal State. 43 Offshore wind parks have the possibility of creating serious issues concerning interference with the freedom of navigation and safety at sea.44 In this regard, the provisions of Art. 60 in relation to due notice, removal, safety zones and non-interference with recognised sea lanes essential to international navigation are of importance.

36

Tullio Treves, Military Installations on the Seabed, AJIL 74 (1980), 808, 811. Ibid., 840. See supra, MN 14. 39 Elferink (note 30), para. 12. 40 Ibid. 41 As can be evidenced in the Baltic Sea, where wind parks have already been constructed in the Danish and Swedish sectors of the sea. See Peter Ehlers, Baltic Sea, MPEPIL, para. 13, available at http://www.mpepil.com. 42 See further Proelss on Art. 56 MN 17–19. 43 For detail, see European Wind Energy Association, Enabling Offshore Wind Developments (2012), 114–115, available at: http://www2.ewea.org/documents/offshore%20-%20EWEA%20version%20.pdf. 44 This is particularly an issue in the Baltic Sea, and the European Union has partially funded a Project called Baltic Master which has addressed itself with this issue in recent years. See generally Baltic Master, Offshore Windfarm Development and the Issue of Maritime Safety (2007), available at: http://www.balticmaster.org/ media/files/general_files_713.pdf. See further: Andreas Kannen et al., Renewable Energy and Marine Spatial Planning: Scientific and Legal Implications, in: Nordquist et al. (note 25), 153–178. 37 38

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Article 81 Drilling on the Continental Shelf The coastal State shall have the exclusive right to authorize and regulate drilling on the continental shelf for all purposes. Bibliography: Moira L. McConnell, The Law Applicable on the Continental Shelf, General Reports of the XVIIIth Congress of the International Academy of Comparative Law (2012), 453–466; Moira L. McConnell/ Eduard Somers and Frank Maes/Denis Roy/Wolfgang Wurmnest/Tullio Treves and Irini Papanicolopulu/ Souichirou Kozuka and Hideyuki Nakamura/Christiaan P. Verwer/Tore Henriksen/Maria Dragun-Gertner, Zuzanna Peplowska and Dorota Pyc´/Luı´s de Lima Pinheiro/Rachael E. Salcido/Angelina Jaffe´, Special Theme: National Studies of the Law Applicable on the Continental Shelf and in the EEZ, Ocean Yearbook 25 (2011), 221–480; Rene´-Jean Dupuy/Daniel Vignes (eds.), A Handbook on the New Law of the Sea, vol. II (1991); Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); David Ong, Towards an International Law for the Conservation of Offshore Hydrocarbon Resources within the Continental Shelf?, in: David Freestone/Richard Barnes/David Ond (eds.), The Law of the Sea: Progress and Prospects (2006), 93–118; Alexander Proelss/Kerstin Gu¨ssow, Carbon Capture and Storage from the Perspective of International Law, EYIEL 2 (2011), 151–168; J. Ashley Roach, International Standards for Offshore Drilling, in: Myron H. Nordquist/John Norton Moore/Aldo Chircop/Rona´n Long (eds.), The Regulation of Continental Shelf Development: Rethinking International Standards (2013), 105–150; Tim Stephens, The Continental Shelf, in: Rachel Baird/Donald R Rothwell (eds.), Australian Coastal and Marine Law (2012), Ch. 7; Peter-Tobias Stoll, The Continental Shelf, MPEPIL, para. 41, available at: http://www.mpepil.com; Peter N. Swan, Ocean Oil and Gas Drilling and the Law (1979); Timothy J. Tyler/James L. Loftis/Emilie E. Hawker/Hana V. Vizcarra/M. Imad Khan, Developing Arctic Hydrocarbon Resources: Delineating and Delimiting Boundaries for Field Development in the Arctic, in: Myron H. Nordquist/John Norton Moore/Aldo Chircop/Rona´n Long (eds.), The Regulation of Continental Shelf Development: Rethinking International Standards (2013), 319–351 Documents: Allan Rentcome/Rick McLin, The New Technology Frontier: Moving Oil and Gas Production to the Seabed: Rockwell Automation Report (2011); ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45; IMO, Implications of the United Nations Convention on the Law of the Sea for the International Maritime Organization, IMO Doc. LEG/MISC.7 (2012); Total E&P Norge AS, Frigg Field Cessation Plan (2003), available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/43408/friggdp.pdf.; UNEP, UNEP Factsheet: How is Crude Oil Found and Extracted?, available at: http://oils.gpa.unep.org/ facts/extraction.htm#NRC; US National Response Team, On Scene Coordinator Report: Deepwater Horizon Oil Spill (2011) Cases: Arbitration between Petroleum Development (Trucial Coast) Ltd. and Sheikh of Abu Dhabi, AJIL 47 (1953), 156–159; ICJ, Aegean Sea Continental Shelf Case (Greece v. Turkey) Judgment of 19 December 1978, ICJ Reports (1978), 3 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘shall have the exclusive right to authorize and regulate’. . . . . . . . . . . . . . . . . . . . . . . . 2. ‘drilling on the continental shelf for all purposes’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Art. 81 sets out the exclusive right of the coastal State to authorise and regulate drilling on the continental Shelf. The article is complementary to Art. 77, which sets out the sovereign rights of coastal States on the continental shelf for the purposes of exploring and exploiting its natural resources, but extends the scope of the right to drilling ‘for all purposes.’

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II. Historical Background The issue of drilling on the continental shelf, though being very important in practical 2 terms, was not addressed in the 1958 Convention on the Continental Shelf, or in the 1956 International Law Commission (ILC) Draft Articles concerning the Law of the Sea1 on which the 1958 Convention was based. During the negotiations at UNCLOS I, drilling was mentioned by certain delegations2 but was generally understood to be ‘one of the principal methods of exploiting the mineral resources of the seabed and subsoil.’3 Indeed, it has been argued that developments in offshore drilling were one of the main factors that ‘stimulated development of the legal regime for exploration and exploitation of the continental shelf.’ 4 The issue first arose in the negotiations of the Sea-Bed Committee in a proposal of the 3 United States,5 which included the exclusive right to authorise and regulate ‘drilling for purposes other than exploration and exploitation of resources’,6 mirroring the present right contained in Art. 81. At UNCLOS III, the United States similarly proposed that: ‘The coastal State shall have the exclusive right to authorize and regulate drilling for all purposes in the economic zone’7, with another provision of that proposal applying this right mutatis mutandis to the continental shelf.8 The provision was adapted and included in the 1975 Main Trends Working Paper 9 as 4 Provision 78, Formula B. The draft provision read: ‘The coastal State shall have the exclusive right to authorize and regulate drilling on the continental shelf for all purposes.’ 10 In the following negotiations of the Conference, the article was renumbered and then adopted with the Convention as a whole.11

III. Elements 1. ‘shall have the exclusive right to authorize and regulate’ Art. 81 lays out the exclusive right of the coastal State to authorize and regulate drilling on 5 the continental shelf for all purposes. It should be noted that the wording of the provision 1 See ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12, 44–45, for the discussion of the ILC in general on the regime of the continental shelf. 2 For example, see Statement of Mr. Samad (Pakistan): UNCLOS I, Summary Records of the 6th to 10th Meetings of the Fourth Committee, UN Doc. A/CONF.13/C.4/SR6-10 (1958), OR VI, 7, 19 (Twelfth Meeting, para. 1), stating that drilling on continental shelf ‘inevitably led to some curtailment of the freedom of navigation, and therefore raised complex legal considerations.’ 3 Statement of Mr. Rosenne (Israel): Ibid., 17 (Ninth Meeting, para. 27). 4 David Ong, Towards an International Law for the Conservation of Offshore Hydrocarbon Resources within the Continental Shelf?, in: David Freestone/Richard Barnes/David Ond (eds.), The Law of the Sea: Progress and Prospects (2006), 93. 5 Sea-Bed Committee, United States: Draft Articles for a Chapter on the Rights and Duties of States in the Coastal Seabed Area, UN Doc. A/AC.138/SC.II/L.35 (1973). 6 Ibid., 1 (Art. 1 (3)(b)). It should be noted, however, that this proposal was not directly in reference to the regime that now covers the continental shelf but rather what the US termed the coastal seabed economic area. The later development of the regime of the exclusive economic zone (EEZ) means that what was under consideration by the US at this time is now treated as distinct maritime zones under the Convention. 7 Second Committee UNCLOS III, United States of America: Draft Articles for a Chapter on the Economic Zone and the Continental Shelf, UN Doc. A/CONF.62/C.2/L.47 (1974), OR III, 222 (Art. 4). 8 Ibid., 225 (Art. 26). 9 UNCLOS III, Documents Statement of Activities of the Conference during its First and Second Sessions, UN Doc, A/CONF.62/L.8/REV.1 (1974), OR III, 93, 107. 10 Ibid., 119. 11 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 928.

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refers to an ‘exclusive right’, rather than a ‘sovereign right’ as referred to in Art. 77 (1). 12 As at its core, a sovereign right is a right that is exclusive to one State over a particular area or in relation to particular conduct, it is not clear that there is a difference in meaning between the two terms, except perhaps in terms of scope. The rights of the coastal State over the continental shelf laid out in Art. 77 are limited to sovereign rights ‘for the purpose of exploring it and exploiting its natural resources.’ The right contained in Art. 81 is not so limited,13 as is the case with the rights of the coastal State in regard to the exclusive right to construct authorise and regulate the construction and use of artificial islands (� Art. 80; Art. 60 (1)(a)) which are also held by the coastal State for all purposes. 14 6 Unlike the regime for marine scientific research (MSR) contained in the Convention (Part XIII), there are no specific obligations laid out for how regulation and authorisation should be carried out by the coastal State, and no obligation that they must allow other States to drill on their continental shelf.15 In regard to the MSR regime, all States have a right to conduct MSR projects, including on the continental shelf (though this right is not automatic and is subject to the consent of the coastal State, which must be granted ‘in normal circumstances, see Art. 246 (2)16), whereas no similar right exists in regards to drilling on the continental shelf. According to Art. 246 (5)(b), if the MSR project proposed by the researching State involves ‘drilling into the continental shelf’, then the coastal State has discretion to withhold its consent to the MSR project.17

2. ‘drilling on the continental shelf for all purposes’ 7

The exclusive right of coastal States to authorise and regulate drilling on the continental shelf laid out in Art. 81 applies to the continental shelf as defined in Art. 76. 18 The seabed beyond the limits of the continental shelf, and beyond the limits of national jurisdiction, is the Area (� Art. (1)(1)), and any activities carried out therein must be carried out for the benefit of mankind (� Art. 140) and in line with Part XI of the Convention. As there is no comparable to provision to Art. 81 in Part V of the Convention governing the EEZ, it was suggested, prior to the adoption of the Convention, that when the natural limit of the continental shelf comes within the limit of the claimed EEZ: ‘It seems safe to assume that the coastal [S]tate would have identical powers over drilling beyond its continental shelf margin but within 200 miles off shore as it would with regard to drilling operations on the continental shelf.’19

This is indeed the case as the geographical features of the continental shelf within 200 NM are irrelevant as regards to the definition of the continental shelf under the Convention. ‘[W]here the outer edge of the continental margin does not extend to that distance’, the distance of 200 NM from the baselines from which the breadth of the territorial sea is measured is deemed to be the outer edge of the continental shelf of the coastal State under the Convention (� Art. 76 (1)). 8 Drilling on the continental shelf will often be conducted by private entities for oil, gas or other purposes. The activities of these private entities are generally regulated by the coastal State through national legislation, as coastal States ‘have significant regulatory autonomy in 12

See Maggio on Art. 77 MN 18–20. Although writing in reference to marine scientific research, Dupuy/Vignes also adopt the position that ‘sovereign rights’ are more limited than ‘exclusive rights’, see Daniel Vignes/R. D. Dupuy (eds.), Handbook on the New Law of the Sea, vol. II (1991), 1132. 14 See Maggio on Art. 80 MN 1. 15 For detail of the MSR regime, see generally the commentary to Part XII, and specifically Huh/Nishimoto on Art. 246 MN 33 in regards to MSR on the continental shelf. 16 See further Huh/Nishimoto on Art. 246 MN 23–24. 17 See Huh/Nishimoto on Art. 246 MN 28–32. 18 See Parson on Art. 76 MN 26–33. 19 Peter N. Swan, Ocean Oil and Gas Drilling and the Law (1979), 206. 13

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these areas [the contiguous zone, the EEZ and the continental shelf] if their legislation is tied to natural resources or other economic activities or protection and preservation of the marine environment’20. A dispute arose in 1953 in relation to drilling on the continental shelf, as the Sheikh of Abu Dhabi had, in 1939, entered into a contract with a private entity (a British company), granting it ‘exclusive right for 75 years to drill for oil in “the whole of the lands which belong to the rule of the Ruler of Abu Dhabi and its dependencies and all the islands and the sea waters which belong to that area.”’21 The Arbitrator, LORD ASQUITH OF BISHOPSTONE, ruled in this case that as the doctrine of the continental shelf had not yet been developed at the time of the agreement, the right of the private company to drill in that maritime zone could not be read into the contract.22 Furthermore, one of the main points of contention that led to the initiation of proceedings in the Aegean Sea Continental Shelf Case 23 at the International Court of Justice was the Turkish government granting licenses to private companies in order to ‘carry out exploration for petroleum in submarine areas of the Aegean Sea, including areas which encroached upon the continental shelf’24 – which the Greek government claimed was part of the Greek continental shelf. 25 However, there do exist some international standards26 that are relevant in the context of 9 offshore drilling, particularly regarding pollution.27 Under Art. 208 (5), States are required to ‘establish global and regional rules, standards and recommended practices and procedures to prevent, reduce and control pollution of the marine environment’, especially through competent international organisations. The International Maritime Organization (IMO) is of particular relevance in this context, but as of yet it appears to have failed to engage with the sort of pollution envisaged in Art. 208 (5) that arises from the exploration and exploitation of natural resources, stating in 2012 that such pollution is ‘not the direct concern of the IMO’.28 The IMO has, however, adopted a number of instruments with regard to hydrocarbon exploration and oil and gas drilling, such as the 2009 Code for the Construction and Equipment of Mobile Offshore Drilling Units.29 Offshore oil production accounts for about 30 per cent of the total world oil production, 10 and offshore gas production for about half of the world production of natural gas. 30 In order to carry out drilling projects, artificial islands, installations or structures, such as offshore oil platforms and oil rigs, will normally be required.31 The rules governing the construction, authorisation and regulation of the operation and use of such artificial islands, installations and structures are laid out in Arts. 60 and 80 in relation to the continental shelf.32 As new technology develops, the potential for moving the platforms and equipment required for drilling, extraction and processing of oil to the seabed is quickly 20 Moira L. McConnell, The Law Applicable on the Continental Shelf, General Reports of the XVIIIth Congress of the International Academy of Comparative Law (2012), 458. For detail of the national legislation reviews on which this report was based see, Moira L. McConnell et al., Special Theme: National Studies of the Law Applicable on the Continental Shelf and in the EEZ, Ocean Yearbook 25 (2011), 221–480. For detail of the Australian regulatory framework on the continental shelf, see Tim Stephens, The Continental Shelf, in: Rachel Baird/Donald R Rothwell (eds.), Australian Coastal and Marine Law (2012), Ch. 7. 21 Arbitration between Petroleum Development (Trucial Coast) Ltd. and Sheikh of Abu Dhabi, AJIL 47 (1953), 156. 22 Ibid., 158. 23 ICJ, Aegean Sea Continental Shelf Case (Greece v. Turkey) Judgment of 19 December 1978, ICJ Reports (1978), 3. 24 Ibid., 9 (para. 16). 25 The dispute between Greece and Turkey in relation to the Aegean is on-going. 26 See generally J. Ashley Roach, International Standards for Offshore Drilling, in: Nordquist et al. (eds.), The Regulation of Continental Shelf Development: Rethinking International Standards (2013), 105–150. 27 See infra, MN 12. 28 See IMO, Implications of the United Nations Convention on the Law of the Sea for the International Maritime Organization, IMO Doc. LEG/MISC.7 (2012), 18; Roach (note 26), 107–108. 29 For further detail, see Roach (note 26), 108–122. 30 UNEP, UNEP Factsheet: How is Crude Oil Found and Extracted?, available at: http://oils.gpa.unep.org/facts/ extraction.htm#NRC. 31 Nordquist/Nandan/Rosenne (note 11), 928. 32 For further detail, see Maggio on Art. 80 and Proelss on Art. 60.

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becoming a reality.33 Such platforms would continue to be governed by the rules contained in Arts. 60 and 80. In other instances, often in the preliminary stages when searching for oil or gas traps,34 the drilling occurs from ‘drillships’ or other movable drilling rigs that are classified as ships or vessels.35 11 Where States share continental shelf boundaries, shared oil resources can occur in reservoirs which cross these boundaries. For example, in the North Sea the United Kingdom and Norway share a continental shelf boundary over which the Frigg, Statfjord and Murchison oil and gas fields lie.36 The delimitation of such boundaries is governed by Art. 83, which obligates States with opposite or adjacent continental shelves to delimit them by agreement (Art. 83 (1)) or, if agreement cannot be reached, according to the procedures provided for in Part XV of the Convention on dispute settlement (Art. 83 (2)).37 In practice, many such agreements exist and have been concluded both prior to and after the Convention was adopted, for example, the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of Norway relating to the Delimitation of the Continental Shelf.38 In relation to the shared oil resources spanning the boundary of the shelf between Norway and the UK, the two governments have entered into separate, more specific treaties, such as the Agreement Relating to the Exploitation of the Frigg Fields Reservoir and the Transmission of Gas therefrom to the United Kingdom.39 Boundary delineation and delimitation in the Arctic for the purposes of oil extraction currently constitutes the most import example in this regard. The 2010 Barents Sea Agreement between Norway and the Russian Federation has been described as a ‘stateof-the-art bilateral treaty that will effectively address cross-border hydrocarbon-field exploitation’40 by establishing ‘the parameters of their unitization agreements and consider[ing] the critical terms before the pressure of developing a particular hydrocarbon field arises.’ 41 12 As drilling on the continental shelf will often be carried out for the purposes of extracting oil, the risk of pollution from drilling is a serious environmental concern.42 Following the general obligation set out in Arts. 192 and 194 (1) to protect and preserve the marine environment and 33 Allan Rentcome/Rick McLin, The New Technology Frontier: Moving Oil and Gas Production to the Seabed: Rockwell Automation Report (2011), available at: http://literature.rockwellautomation.com/idc/groups/literature/ documents/wp/oag-wp006_-en-p.pdf. 34 UNEP Factsheet (note 30). 35 See, for example, the specifications of the rigs belonging to the fleet of the Transocean Company, available at: http://www.deepwater.com/fw/main/Our-Rigs-14.html, which all have flag States – a requirement for ships (Art. 92 (1)). 36 Swan (note 19), 198. 37 For further information, see Tanaka on Art. 83 MN 19. 38 Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of Norway relating to the Delimitation of the Continental Shelf between the two Countries, 10 March 1965, UKTS 71 (1965). 39 Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Norway relating to the Exploitation of the Frigg Fields Reservoir and the Transmission of Gas therefrom to the United Kingdom, 10 May 1976, UKTS 113. (1976). It should be noted, however, that following an agreement between the two governments the Frigg Field is has been decommissioned, see Total E&P Norge AS, Frigg Field Cessation Plan (2003), available at https://www.gov.uk/government/uploads/system/uploads/ attachment_data/file/43408/frigg-dp.pdf. This treaty was considered to be a template for future agreements, see Swan (note 18), 200. 40 Timothy J. Tyler et al., Developing Arctic Hydrocarbon Resources: Delineating and Delimiting Boundaries for Field Development in the Arctic, in: Nordquist et al. (note 26), 319, 320. 41 Ibid., 348 (emphasis added). 42 The 2010 Deepwater Horizon incident, for example, was deemed the largest oil spill of its kind. ‘Oil flowed from the well for 87 days. Two drilling ships, numerous oil containment vessels, and flotilla of support vessels were deployed to control the source of the well, while 835 skimmers and approximately 9000 vessels were involved in the cleanup. In the single most demanding day of the response over 6000 vessels, 82 helicopters and 20 fixed wing aircraft and over 47,849 personnel/responders were assigned; 88,522 square miles of fisheries were closed[…]’: US National Response Team, On Scene Coordinator Report: Deepwater Horizon Oil Spill (2011), vi, available at: http://www.uscg.mil/foia/docs/dwh/fosc_dwh_report.pdf. In course of the disaster a total of 4.9 million barrels of oil were released, ibid., 33.

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take all necessary measures to prevent, reduce and control pollution, Art. 194 (3)(b) and (c) aim specifically to ensure that such measures include those designed to minimize to the fullest extent possible pollution from installations and vessels.43 More specifically, pollution from activities carried out on the continental shelf is governed by Art. 208 as a sea-bed activity subject to the jurisdiction of the coastal State. This is also the governing provision when carried out from artificial islands, installations or structures,44 but Art. 211 may govern where the pollution occurs from vessels involved in drilling,45 though likely after drilling and extraction phase. The process of carbon capture and storage (CCS) is currently being explored as a means of 13 reducing the environmental harm caused by the release of waste carbon dioxide into the atmosphere. In pursuit of environmental policies to inter alia reduce the effects of climate change and ocean acidification, CCS storage has been carried out in geological formations in the subsoil of the seabed.46 Though it may be interpreted as pollution under Art. 1 (1)(4) of the Convention,47 the better approach is that, through a balancing application of the precautionary principle, CSS ‘is not generally prohibited under the UNCLOS regime if and to the extent which is conducted within the framework of balancing of values governed by a proper reading of the precautionary principle.’48 How CCS on the continental shelf is regulated by the provisions of the Convention is not immediately apparent, as such activities were not envisaged at the time of drafting, and therefore there is no single provision to address such an issue. It is difficult to base the authority of the coastal State to carry out such activities on Art. 77 (1), as under Art. 77 (4) ‘the use of such storage space in subsoil geological formations cannot be considered to constitute the exploitation of a natural resource’49. However, through the application of Arts. 60, 80, 81 and 85 of the Convention in giving coastal States rights50 in relation to the artificial islands, installations and structures, drilling and tunnelling on the continental shelf: ‘If one merges the legal consequences deriving from the aforementioned provisions, and given the factual similarities with resource exploitation activities, it is submitted that the coastal State has the exclusive competence to regulate and conduct all CCS activities on the continental shelf.’ 51

Certainly, it is clear that the wording of Art. 81 (‘for all purposes’) dictates that any drilling required for a CCS project would be under the exclusive right of the coastal State to authorise and regulate.

Article 82 Payments and contributions with respect to the exploitation of the continental shelf beyond 200 nautical miles 1. The coastal State shall make payments or contributions in kind in respect of the exploitation of the non-living resources of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. 43

See further Czybulka on Art. 194 MN 22–25. See Wacht on Art. 208 MN 9–10. 45 See Bartenstein on Art. 211. 46 Peter-Tobias Stoll, The Continental Shelf, MPEPIL, para. 41, available at: http://www.mpepil.com. 47 Defined as ‘the introduction by man, directly or indirectly, of substances or energy into the marine environment […] which results in or is likely to result in deleterious effects as harm to living resources and marine life […]’, see further Tanaka on Art. 1 MN 12–15. 48 Alexander Proelss/Kerstin Gu ¨ ssow, Carbon Capture and Storage from the Perspective of International Law, EYIEL 2 (2011), 151, 154. 49 Stoll (note 46), para. 41. 50 The precise rights of the coastal State vary under each article, for detail see Proelss on Art. 60, Maggio on Art. 80 and on Art. 85; see also supra MN 5–6. 51 Proelss/Gu ¨ ssow (note 48), 156; see also Stoll (note 46), para. 41, stating that ‘coastal States may authorize and regulate such activities on the basis on their authority [deriving from these provisions]’. 44

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2. The payments and contributions shall be made annually with respect to all production at a site after the first five years of production at that site. For the sixth year, the rate of payment or contribution shall be 1 per cent of the value or volume of production at the site. The rate shall increase by 1 per cent for each subsequent year until the twelfth year and shall remain at 7 per cent thereafter. Production does not include resources used in connection with exploitation. 3. A developing State which is a net importer of a mineral resource produced from its continental shelf is exempt from making such payments or contributions in respect of that mineral resource. 4. The payments or contributions shall be made through the Authority, which shall distribute them to States Parties to this Convention, 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. Bibliography: Aldo Chircop, Energy Policy and International Royalty: A Dormant Servitude Relevant for Offshore Development, in: Myron H. Nordquist/John Norton Moore/Alexander Skaridov (eds.), International Energy Policy, the Arctic and the Law of the Sea (2005), 247–270; Aldo Chircop, Operationalizing Article 82 of the United Nations Convention on the Law of the Sea: A New Role for the International Seabed Authority?, Ocean Yearbook 18 (2004), 395–412; Aldo Chircop/Bruce Marchand, International Royalty and Continental Shelf Limits: Emerging Issues for the Canadian Offshore, Dalhousie L.J. 26 (2003), 273–302; Michael W. Lodge, The International Seabed Authority and Article 82 of the United Nations Convention on the Law of the Sea, IJMCL 21 (2006), 323–333; Myron H. Nordquist/Choon-ho Park (eds.), Reports of the United States Delegation to the Third United Nations Conference on the Law of the Sea (1983); Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Arvid Pardo, Common Heritage: Selected Papers on Oceans and World Order 1967–1974 (1975) Documents: GA, Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction, GA Res. A 2749 (XXV) of 17 December 1970; ILA Outer Continental Shelf Committee: Report on Article 82 of the UN Convention on the Law of the Sea, Rio de Janeiro Conference (2008); ISA, Implementation of Article 82 of the United Nations Convention on the Law of the Sea, Technical Study No. 12 (2012); ISA, Issues Associated with the Implementation of Article 82 of the United Nations Convention on the Law of the Sea, Technical Study: No. 4 (2009); ISA, A Study of Key Terms in Article 82 of the United Nations Convention on the Law of the Sea, authored by Wylie Spicer/Elizabeth McIsaac, ISA Technical Study No. 15 (2016); ISA, Non-Living Resources of the Continental Shelf Beyond 200 Nautical Miles: Speculations on the Implementation of Article 82 of the United Nations Convention on the Law of the Sea, Technical Study: No. 5 (2010); ISA, Report of the Secretary-General of the International Seabed Authority under Article 166, Paragraph 4, of the United Nations Convention on the Law of the Sea, ISA Doc. ISBA/16/A/2 (2010) Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘The coastal State shall make payments or contributions in kind in respect of the exploitation of the non-living resources of the [extended] continental shelf’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘payments and contributions shall be made annually […] after the first five years’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. ‘[f]or the sixth year, the rate of payment or contribution shall be 1 per cent of the value or volume of production at the site’ and ‘shall increase by 1 per cent for each subsequent year’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. ‘[the rate] shall remain at 7 per cent’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. ‘[a] developing State which is a net importer […] is exempt from making such payments’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. ‘payments or contributions shall be made through the Authority’. . . . . . . . . . . . . . 8. ‘shall distribute them to States Parties to this Convention […] taking into account the interests and needs of developing States’. . . . . . . . . . . . . . . . . . . . . . . . . . .

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I. Purpose and Function Art. 82 is an unprecedented provision in international treaty law because it establishes an 1 international obligation attaching to the ‘sovereign right’ to explore and exploit non-living resources within national jurisdiction (� Art. 77). The obligation attaches to coastal States Parties that enjoy an extended continental shelf (ECS), i. e., a continental shelf that extends beyond 200 NM to the outer limit of the continental margin, as defined in accordance with Art. 76. The obligation consists of the making of payments or contributions in relation to production from non-living resource development on the ECS in accordance with a pre-set scale. The payments and contributions, which are made through the International Seabed Authority (ISA or the Authority), are intended for the benefit of States Parties, especially for developing countries. It is an important provision in the regime of the continental shelf not only on account of its novelty, but also because its inclusion in UNCLOS was an integral part of the compromise that found consensus on Art. 76.1 Effectively, Art. 82 is the quid pro quo of Art. 76, and the relationship between the two provisions helped achieve consensus on the ‘package deal’ of the Third United Nations Conference on the Law of the Sea (1973–1982). UNCLOS provides little guidance as to how Art. 82 is to be implemented. This is due to a 2 number of factors, namely: it is drafted in general terms; it is a provision that reflects a compromise in relation to another provision; agreement was reached after extended negotiations dating back to the Sea-Bed Committee (1968–1973) tasked by the UN General Assembly with the preparation of the negotiation agenda of UNCLOS III; it was negotiated at a time when the benefits were perceived to accrue in the distant future. Accordingly, the text of Art. 82 reflects more the need for a compromise than the practicalities of guiding the implementation of a complex provision. Its interpretation and eventual implementation require an understanding of its historical background, rationale and spirit that led to its adoption, albeit in a contemporary context.

II. Historical Background The philosophical and diplomatic backdrop of Art. 82 can be traced back to the seminal 3 speech of Ambassador ARVID PARDO, Permanent Representative of Malta to the United Nations, delivered in the First Political Committee of the United Nations General Assembly on 1 November 1967.2 In that speech PARDO proposed that the ‘seabed and the ocean floor are a common heritage of mankind and should be used and exploited for peaceful purposes and for the exclusive benefit of mankind as a whole’ and with preferential consideration for the needs of developing countries in the allocation of financial benefits derived from development of the international seabed area’s (the Area) resources.3 PARDO’S proposal triggered a chain of events that led to the 1970 Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil thereof, beyond the Limits of National Jurisdiction, which declared that the seabed and subsoil beyond national jurisdiction was common heritage of mankind, beyond national appropriation, and highlighted equitable sharing of benefits derived from the Area by all States, ‘taking into particular consideration the interests and needs of the developing countries.’ 4 As a result of these early initiatives, in subsequent multilateral conference negotiations any expan1

Cf. Parson on Art. 76. Statement of Mr. Pardo (Malta): GA, 1515th Meeting of the First Committee, UN Doc. A/C.l/PV.1515 (1967), GAOR, 22nd Sess., 1–15; GA, 1516th Meeting of the First Committee, UN Doc. A/C.1/PV.1516 (1967), GAOR, 22nd Sess., 1–3. 3 Ibid.; for elaborations on the concept of ‘common heritage of mankind’, see also Lagoni on the Preamble MN 31–35. 4 GA Res. 2749 (XXV) of 17 December 1970. 2

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sion of coastal State jurisdiction over adjacent marine areas, most notably the eventual exclusive economic zone (EEZ)5 and ECS, would be perceived by many States to occur at the expense of the Area and the common heritage of mankind.6 A balance between coastal State extended jurisdictional rights and limits to their spatial extent and accompanying responsibilities would be at the core of subsequent conference diplomacy and the emergence of Art. 82. 4 The need to achieve this balance was evident at an early stage in the Sea-Bed Committee. Since the beginning, there had been concern that as long as the limits of national maritime jurisdiction remained uncertain, they were likely to be pushed further seawards at the expense of the Area and the common heritage of mankind, potentially conflicting with the 1970 Declaration of Principles. Whereas coastal States stood to benefit, whether due to their broad margins or simply because they enjoyed open ocean areas opposite their coasts, landlocked and geographically disadvantaged States were unlikely to benefit. Most of the latter were developing States and the hope was that they would share the benefits accruing from the development of the Area. 5 On 25 May 1970, President RICHARD NIXON proposed a trusteeship zone for ocean space between the continental shelf beyond a depth of 200 metres and the Area, over which the coastal State would act as trustee for the international community and in return would receive a share of revenues from resource development in that space.7 Although this initiative did not receive sufficient support, the idea that coastal States could share revenues from development off their coasts with the international community would subsist as a potential quid pro quo for extended jurisdiction.8 In 1971 Malta submitted a proposal for a Draft Ocean Space Treaty, the first proposal for an all-encompassing convention, which included a provision creating an obligation on coastal States to transfer a portion of the revenue from natural resource development within national jurisdiction to the International Ocean Space Institutions.9 PARDO proposed that contributions could be made based on different scales in four zones: Area 1–100 NM from the coast: no contribution; Area 2 – 100–150 NM: 25 %; Area 3 – 150– 170 NM: 50 %; Area 4 – 175–200 NM: 75 %.10 The central idea of revenue sharing was articulated in one form or another by other delegations. A Canadian call for a moratorium on new claims beyond existing limits, including registration of existing claims, but without prejudice to future legal development, did not receive support.11 That proposal also included 5

The regime of the EEZ is now dealt with in Part V of the Convention. The regime of the Area is now dealt with in Part XI of the Convention. For further information on the common heritage of mankind, see generally Vo¨neky/Ho¨felmeier on Art. 136. 7 Sea-Bed Committee, Letter Dated 25 May 1970 from the Representative of the United States of America Addressed to the Chairman of the Committee, UN Doc. A/AC.138/22 (1970). See explanatory comments made by the US Delegation: Sea-Bed Committee, Summary Records of the Twenty-Ninth to Forty-Fourth Meetings, UN Doc. A/AC.138/SR.29-44 (1970), 9–12 (29th Meeting). 8 Some delegations expressed strong views against, e. g., Sri Lanka: Sea-Bed Committee, Summary Records of the Twenty-Ninth to Forty-Fourth Meetings, UN Doc. A/AC.138/SR.29-44 (1970), 51–54 (34th Meeting) and Statement of Mr. Warioba (Tanzania): Sea-Bed Committee, Summary Records of the Fifth to the Thirty-First Meetings, UN Doc. A/AC.138/SC.I/SR.5-31 (1971), 237–242 (18th Meeting). The Netherlands expressed interest in the possible compromise underlying the intermediate zone proposed: Sea-Bed Committee, Summary Records of the Thirty-Second to Forty-Seventh Meetings, UN Doc. A/AC.138/SC.I/SR.32-47 (1972), 122–123 (41st Meeting). The US delegation responded to some of the comments made on its proposal: Sea-Bed Committee, Summary Records of the Fifth to the Thirty-First Meetings, UN Doc. A/AC.138/SC.I/SR.5-31 (1971), 201–202) (16th Meeting). Later it added that ‘[a]n equitable system must also make provision for the sharing of revenues from important areas of the continental margin; those revenues would be collected by the coastal State, and a portion would be paid to the International Authority’, Sea-Bed Committee, Summary Records of the ThirtySecond to Forty-Seventh Meetings, UN Doc. A/AC.138/SC.I/SR.32-47 (1972), 124 (41st Meeting). 9 Sea-Bed Committee, Draft Ocean Space Treaty: Working Paper Submitted by Malta, UN Doc. A/AC.138/53 (1971), 38. 10 Arvid Pardo, The Common Heritage: Selected Papers on Oceans and World Order 1967–1974 (1975), 219–220. 11 Sea-Bed Committee, Summary Records of the Forty-Fifth to the Sixtieth Meetings, UN Doc. A/AC.138/ SR.45-60 (1971), 198–199 (58th Meeting). See Canada’s comment in: Sea-Bed Committee, Summary Records of the Sixty-First to the Sixty-Seventh Meetings, UN Doc. A/AC.138/SR.61-67 (1971), 64–65 (65th Meeting); SeaBed Committee, United States: Draft Articles for a Chapter on the Rights and Duties of States in the Coastal SeaBed Economic Area, UN Doc. A/AC.138/SC.II/L.35 (1973), 3 (Article 2(e)). 6

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a voluntary international development tax, payable to the future Authority, based on a fixed percentage of revenue from seabed areas beyond national jurisdiction claimed at the time. 12 By the end of the 82nd meeting in August 1972, Sub-Committee I reported that in the 6 interests of an equitable system of sharing the US-proposed intermediate zone had to include at least a portion of the continental margin from which there would be provision for revenuesharing.13 At this time there appeared to be wide agreement that the territorial sea should extend to 12 NM and that a further zone that would fall under national jurisdiction should extend to 200 NM. Although prepared to accept extended jurisdiction, the US emphasized the importance of rights accompanied by responsibilities and remained in favour of equitable sharing of revenues from mineral resource exploitation on the continental margin, ‘particularly for the benefit of developing countries’.14 It submitted new draft articles setting out a package of rights and responsibilities, including revenue-sharing as one of the responsibilities.15 The US was of the view that the recognition of broad management rights for coastal States over the seabed, including where it extended beyond 200 NM, should be accompanied by measures such as revenue-sharing, which would safeguard the interests of other States. 16 Revenue-sharing was seen as an important element to solve the limits of jurisdiction of coastal States, although at the time few States supported this principle, and which was left for the future conference to address. Land-locked and geographically disadvantaged Afghanistan, Austria, Belgium, Bolivia, Nepal and Singapore also proposed draft articles of their own with proposals for revenue-sharing of both living and non-living resources in relation to areas of extended jurisdiction.17 In relation to non-living resources, they proposed a differential rate for areas within 40 NM or the 200-metre isobath and areas beyond, with percentages to be negotiated, and which the Authority would distribute on the basis of equitable sharing criteria.18 The point was stressed that the extended jurisdiction occurred at the expense of the Area and that the coastal State’s ‘contribution to the international authority should therefore offset the loss sustained by the regime applicable to the common heritage’. 19 The Netherlands submitted a proposal concerning the intermediate zone with a similar provision.20 By the end of the Sea-Bed Committee’s deliberations, the idea appeared to resonate in national delegations and was included in the UNCLOS III agenda for negotiations.21 Whereas the EEZ limit was accepted at an early stage and resulted in substantial State 7 practice,22 the outer limit of the ECS remained a hard core issue in the Second Committee of UNCLOS III until late in the Conference. Leading on from the concerns in the Sea-Bed Committee that the continental shelf regime as it had developed to date had primarily served the interests of developed States, several developed and developing land-locked and geographically disadvantaged States continued to oppose the ECS, and in the alternative advocated 12

Summary Records of the Forty-Fifth to the Sixtieth Meetings (note 11), 201 (58th Meeting). Sea-Bed Committee, Report of Sub-Committee I, UN Doc. A/AC.138/82 (1972), 13. Sea-Bed Committee, Summary Records of the Seventy-Seventh to the Eighty-Ninth Meetings, UN Doc. A/ AC.138/SR.77-89 (1972), 63. 15 US Draft Articles (note 11). 16 Sea-Bed Committee, Provisional Summary Record of the Sixty-Fifth Meeting, UN Doc. A/AC.138/SC.II/ SR.65 (1973), 11–15. 17 Sea-Bed Committee, Draft Article on Resource Jurisdiction of Coastal States beyond the Territorial Sea Proposed by the Delegations of Afghanistan et al., UN Doc. A/AC.138/SC.II/L.39 (1973). 18 Ibid., 2–3 (Article. III). See the comments of the Austrian Delegation in: Seabed Committee, Provisional Summary Record of the Sixty-Eighth Meeting, UN Doc. A/AC.138/SC.II/SR.68 (1973), 4–12, especially 6 and 10–11. 19 Provisional Summary Record of the Sixty-Eighth Meeting (note 18), 10. 20 Sea-Bed Committee, Netherlands: Proposal Concerning the Intermediate Zone, UN Doc. A/AC.138/SC.II/ L.59 (1973), 3 (Article 8). The Netherlands further emphasized that revenue-sharing should be on a global rather than on a regional basis as proposed by others: Sea-Bed Committee, Provisional Summary Record of the SeventySecond Meeting, UN Doc. A/AC.138/SC.II/SR.72 (1973), 4 et seq. 21 Myron H. Nordquist/Choon-ho Park (eds.), Reports of the United States Delegation to the Third United Nations Conference on the Law of the Sea, Law of the Sea Institute Occasional Paper No. 33 (1983), 45. See also Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 933. 22 For a detailed account of the history of the regime of the EEZ, see Proelss on Art. 55 MN 5.13. 13 14

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for a system of equitable compensation.23 Even where a State recognized the entitlement of a coastal State to the continental margin, there remained the view that there should be a right of access to resources, possibly utilising joint ventures at the regional or sub-regional level, 24 or that the natural resources of the ECS should be shared in some respect. 25 Some States questioned whether there was need to establish the Authority where the ECS greatly reduced the Area.26 Some other coastal States sympathised with these concerns while yet others perceived and objected to a regime of ‘mixed ownership’.27 8 The position of the US in support of revenue-sharing developed in the Sea-Bed Committee was continued, and in 1974 it advanced a proposal that reiterated extended coastal State jurisdiction over the continental margin in exchange for revenue-sharing. 28 The Netherlands proposed a scale of contributions by the coastal State based on distance and depth. Later that year, the Conference Bureau prepared an informal working paper, drawing on negotiations from the Sea-Bed Committee and UNCLOS III sessions to date, proposing key principles for compromise text, namely that the coastal State should make contributions out of the revenue from non-living resource development, that the contributions would be based on a scale (without specifying rates or spatial application) and that accruing benefits would be distributed by the Authority.29 A revised version of the working paper referred to the continental shelf outside the territorial sea or the 200-metre isobath. 30 A further revision of the working paper completed by the end of the second session continued to evidence substantial division of views, with two formulae that were diametrically opposed. Formula A proposed revenue contributions for distribution by the Authority on the same basis as revenues derived from the Area, whereas Formula B stated that coastal State sovereign rights over the continental shelf were exclusive and revenues derived therefrom would not be subject to revenue-sharing.31 9 The breakthrough emerged in the Informal Single Negotiating Text (ISNT), produced at the third session in 1975.32 The principle of contribution in exchange of an entitlement to the ECS was accepted, but the future Art. 76 formula for determining the outer limits of the ECS was not agreed upon at this stage.33 While holding on to their position on resource-sharing, land-locked and geographically disadvantaged States negotiated for a coastal State obligation to make payments or contributions in kind. An Austrian-led proposal for a 5 % rate for the area within 200 NM, and 10 % for beyond, was not supported. 34 The US proposed that the 23 For example, as expressed by Mr. Chao (Singapore): Second Committee UNCLOS III, 18th Meeting, UN Doc. A/CONF.62/C.2/SR.18 (1974), OR II, 149, 151; Statement of Mr. Ochan (Uganda): ibid. 24 Second Committee UNCLOS III, Austria: Article 63 bis (ISNT II) (11 April 1976, mimeo.), reproduced in: Renate Platzo¨der (ed.), Third United Nations Conference on the Law of the Sea: Documents, vol. IV (1983), 323; Second Committee UNCLOS III, Austria: Article 63 bis (ISNT II) (28 April 1976, mimeo.), reproduced in: ibid.; Second Committee UNCLOS III, Group of Land-Locked and Geographically Disadvantaged States: Article 63 bis (ISNT II) (mimeo.), reproduced in: ibid., 324; Second Committee UNCLOS III, Austria: Article 63 bis (ISNT II): Compromise Text (1976, mimeo.), reproduced in: ibid., 325; Second Committee UNCLOS III, Austria: Article 69 (ISNT II) (1976, mimeo.), reproduced in: ibid., 325–326; Second Committee UNCLOS III, United States: Article 69 (ISNT II) (mimeo.), reproduced in: ibid., 326; Second Committee UNCLOS III, Group of Land-Locked and Geographically Disadvantaged States: Article 69 (ISNT II) (mimeo.), reproduced in: ibid., 327. 25 Statement of Mr. Ballah (Trinidad and Tobago): 18th Meeting (note 23), 154–155. 26 Statement of Mr. Caflisch (Switzerland): Second Committee UNCLOS III, 19th Meeting, UN Doc. A/ CONF.62/C.2/SR.19 (1974), OR II, 156, 157. 27 Statement of Mr. Ukyawamin (Burma): 18th Meeting (note 23), 155. 28 Nordquist/Park (note 21), 69, 72 (Report on the Second Session). 29 Second Committee UNCLOS III, Formulation of Main Trends, UN Doc. Informal Working Paper No. 3 (1974, mimeo.), reproduced in: Renate Platzo¨der (ed.), Third United Nations Conference on the Law of the Sea: Documents, vol. III (1982), 288, 292 (Provision XII). 30 Ibid., 301 (Provision XIII, Formula B). 31 Second Committee UNCLOS III, Formulation of Main Trends, UN Doc. Informal Working Paper No. 4/ REV. 2 (1974, mimeo.), reproduced in Platzo¨der (note 29), 332, 362 (Provision VIII, Formula B). 32 UNCLOS III, Informal Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/PART II (1975), OR IV, 152. 33 Ibid., 162–163. 34 Austria: Article 69 (note 24).

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form of the payment or contribution should be left to the coastal State and the procedure agreed upon by State parties.35 Whereas the former was accepted, the latter was not and today constitutes an implementation issue. The possibility that a coastal State might not honour its obligation was anticipated, but there was no agreement on empowering the Authority to act in this regard.36 There was agreement on a graduated scale of payments to be made to the Authority or another international organization for distribution to developing countries, but there was no agreement on exempting developing coastal States from the obligation. The US was of the view that the justification of an initial grace period of five years was to enable the developers to recover initial development costs of the resource. The contribution, based on well-head value, would then commence on the sixth year of production at an incremental rate of one percent per year until the ceiling of five percent was reached in the tenth year. Subsequent negotiations in 1976–1979 resolved most differences over coastal State contributions and spatial application, but some issues remained. Negotiating Team 6 was established by the Second Committee to focus on outstanding issues and this included linkage to the emerging Art. 76 formula for the definition of the outer limits of the continental shelf.37 In 1976, the Revised Single Negotiating Text (RSNT) included much of the content of 10 Art. 82 with a clear focus on the ECS only.38 The US proposal for a grace period and a graduated scale with a postponed application, including basing the payment or contribution on value or volume, provided the general direction for subsequent negotiations until the first version of the Informal Composite Negotiating Text (ICNT).39 There continued to be different views on exemptions for certain developing States and whether the Authority would be the recipient of the payments and contributions, with a possible alternative recipient being an entity of the UN to be identified.40 Other differences included the possible supervision through independent accountancy41 and a ceiling of seven per cent. The latter would be accepted in the first revision of the ICNT, which also produced the fully negotiated text of Art. 82 as it appeared in subsequent drafts.42 Land-locked and geographically disadvantaged States made a last and unsuccessful effort to advance the idea of a new international economic order by establishing a Common Heritage Fund (CHF), capturing both the EEZ and continental shelf.43 The proposal also stated that the payments and contributions were to be made to the fund through the Authority for distribution to developing countries according to equitable sharing criteria.44 From this point there was no further substantive change to the text of Art. 82.

35

United States: Article 69 (note 24). Group of Land-Locked and Geographically Disadvantaged States: Article 69 (note 24). 37 Nordquist/Park (note 21), 150. 38 UNCLOS III, Revised Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/REV.1/PART II (1976), OR V, 151, 164. 39 UNCLOS III, Informal Composite Negotiating Text, UN Doc. A/CONF.62/WP.10 (1977), OR VIII. 40 Second Committee UNCLOS III, Austria: Article 70 (RSNT II) (mimeo.), reproduced in: Platzo ¨ der (note 24), 471; Second Committee UNCLOS III, United States: Article 70 (RSNT II) (1977, mimeo.), reproduced in: ibid. 41 Second Committee UNCLOS III, Netherlands: Article 82 (ICNT) (1979, mimeo.), reproduced in: Platzo ¨ der (note 24), 516. 42 UNCLOS III, Informal Composite Negotiating Text (Revision 1), UN Doc. A/CONF.62/WP.10/REV.1 (1979), OR VIII, 56. The subsequent negotiating texts were: UNCLOS III, Informal Composite Negotiating Text (Revision Two), UN Doc. A/CONF.62/WP.10/REV. 2 (1980), OR VIII, 58; UNCLOS III, Draft Convention on the Law of the Sea (Informal Text), UN Doc. A/CONF.62/WP.10/REV.3 (1980), OR VIII, 33; UNCLOS III, Draft Convention on the Law of the Sea, UN Doc. A/CONF.62/L.78 (1981), OR XV, 172, 189. 43 Originally a proposal from Nepal in 1978, supported by Afghanistan, Austria, Bolivia, Lesotho, Singapore, Uganda, Upper Volta and Zambia: Second Committee UNCLOS III, Organizing Committee of the Group for the Common Heritage Fund: Letter to All Heads of Delegations (1980, mimeo.), reproduced in: Platzo¨ der (note 24), 531. See also Second Committee UNCLOS III, Group for the Common Heritage Fund: Background Paper on the Common Heritage Fund Proposal (1980), reproduced in: ibid., 528–530. 44 Background Paper on the Common Heritage Fund Proposal (note 43), 528. 36

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III. Elements 1. Introduction 11

Art. 82 is challenging due to the fact that there is no jurisprudence on point to guide the Authority (� Section 4, Part XI), or for that matter coastal States captured by Art. 82, in the implementation of this provision. There is sparse State practice on the implementation of this provision and it largely relates to the practice of the US, a non-party to the UNCLOS, regarding leases in the Gulf of Mexico.45 The obligation is implemented in the form of a ‘lease stipulation’ providing for royalty payments as contingent on the event the US becomes a party to UNCLOS prior to or during the life of a lease. There is relatively little scholarly literature on the provision.46 The Authority has published four relevant technical studies, three focusing on the implementation of Art. 8247 and a third consisting of an updated study on the resources of the ECS.48 The Authority convened a meeting of experts at Chatham House in 2009 which turned out to be seminal for its future work on the provision. 49 At the sixteenth session of the Assembly of the Authority (26 April-7 May 2010) the SecretaryGeneral proposed that in the context of the programme of work for 2011–2013 an expert group of representatives of Member States, members of the Legal and Technical Commission and other experts be convened to consider and help draft recommendations to the Council and Assembly on the implementation of Art. 82 by the Authority.50 A separate meeting of experts was convened in Beijing in 2013.51 At the twenty-first session of the Assembly in 2015, the Beijing meeting of experts was recalled, in particular the recommendation that a study of terminological issues be undertaken and that the Secretariat hoped to progress that work in 2015.52 In 2016 the Authority issued a new technical study focusing on key terms in Article 82.53 The ISA technical studies can be expected to play an important role in building understanding of the complexities of implementation of this provision, possibly in relation to different types of non-living resources of the extended continental shelf, together with guidance from the travaux preparatoires, principles of general international law and principles and practices of treaty interpretation. The interpretation and implementation of the provision will need to be guided by a pragmatic and functional approach. 45 Discussed in: ISA, Issues Associated with the Implementation of Article 82 of the United Nations Convention on the Law of the Sea, Technical Study No. 4 (2009), 3–8 and 45 et seq. Prior to the US, New Zealand was the first State to directly legislate Article 82 in the Continental Shelf of 1964, 1962 No. 28 More recently Canada and Norway announced the Article 82 obligation in calls for bids to new offshore exploration on the ECS. 46 E. g., and directly on point: Aldo Chircop, Energy Policy and International Royalty: A Dormant Servitude Relevant for Offshore Development, in: Myron H. Nordquist/John Norton Moore/Alexander Skaridov (eds.), International Energy Policy, the Arctic and the Law of the Sea (2005), 247–270; Aldo Chircop, Operationalizing Article 82 of the United Nations Convention on the Law of the Sea: A New Role for the International Seabed Authority?, Ocean Yearbook 18 (2004), 395–412; Aldo Chircop/Bruce Marchand, International Royalty and Continental Shelf Limits: Emerging Issues for the Canadian Offshore, Dalhousie L.J. 26 (2003), 273–302; Michael W. Lodge, The International Seabed Authority and Article 82 of the United Nations Convention on the Law of the Sea, IJMCL 21 (2006), 323–333; Nordquist/Nandan/Rosenne (note 21), 930–947. 47 ISA Technical Study No. 4 (note 45); ISA, Implementation of Article 82 of the United Nations Convention on the Law of the Sea, Technical Study No. 12 (2012); ISA, A Study of Key Terms in Article 82 of the United Nations Convention on the Law of the Sea, authored by Wylie Spicer/Elizabeth McIsaac, ISA Technical Study No. 15 (2016). 48 ISA, Non-Living Resources of the Continental Shelf Beyond 200 Nautical Miles: Speculations on the Implementation of Article 82 of the United Nations Convention on the Law of the Sea, ISA Technical Study No. 5 (2010). 49 ISA Technical Study No. 4 (note 45). 50 ISA, Report of the Secretary-General of the International Seabed Authority under Article 166, Paragraph 4, of the United Nations Convention on the Law of the Sea, ISA Doc. ISBA/16/A/2 (2010), 20 (para. 75). 51 Technical Study No. 12 (note 47). 52 Report of the Secretary-General of the International Seabed Authority under article 166, paragraph 4, of the United Nations Convention on the Law of the Sea, ISA Doc ISBA/21/A/2, 3 June 2015, 3. 53 ISA Technical Study No. 15 (note 47).

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2. ‘The coastal State shall make payments or contributions in kind in respect of the exploitation of the non-living resources of the [extended] continental shelf’ Subject to the rule in Art. 82 (3), the coastal State exploiting non-living resources of its ECS 12 has the obligation to make payments or contributions with respect to production, in accordance with the scale set out in the article. The obligation is not qualified and therefore can reasonably be interpreted to apply to those States undertaking such activity without having completed the process of defining the outer limits of the ECS in accordance with Art. 76. The choice of discharging the obligation through the making of payments or contributions in kind rests with the ECS State. Although ‘in kind’ is undefined in the Convention, the negotiating history suggests that it was intended to refer to an actual share of the resource produced. While the Authority is authorised by Art. 82 (4) to receive payments and contributions, it 13 has not been empowered to establish a mandatory procedure to be followed by the ECS State. The ECS State and the Authority will need to engage in consultations regarding the making of payments or contributions and the Authority’s exercise of its functions in receiving them. The Authority is empowered to develop rules, regulations and procedures which will apply from the moment of receipt and until they are disbursed to eligible State parties and other beneficiaries designated in the Convention.54 UNCLOS is also silent on assessment of payments and contributions in kind. The assess- 14 ment of the amount due rests with the ECS State as a necessary element of its obligation, and because it has access to or control of resource characteristics, production volume and related value. However, because it is an obligation owed to other State Parties of the Convention and the Authority needs to receive payments and contributions to be able to discharge its own responsibilities, it is reasonable to expect the ECS State to inform the Authority of how the amounts due are determined, the currency concerned (which should be convertible to enable the disbursements to beneficiaries) and the schedule for payments or contributions. 55 Further, in the case of contributions in kind, and although the Convention is silent on arrangements for the contribution in kind, the Authority would need reasonable notice to make appropriate arrangements. For example, the Authority will need to make arrangements for the receipt of the share of the resource, transportation needs and risk management arrangements (e. g., insurance). There would be costs associated with receiving, holding, brokerage and distributing the contributions, which are not directly addressed in Art. 82. At the Beijing international technical workshop convened in 2013 by the ISA the complexities of contributions in kind were considered and it was recommended that ECS States, ‘while enjoying the exclusive choice to make payments or contributions in kind, should be encouraged to opt to make payments in the interests of simplicity and efficiency of implementation.’56

3. ‘payments and contributions shall be made annually […] after the first five years’ Art. 82 requires that payments and contributions in kind be made on an annual basis. A 15 possible interpretation of timing of payments and contributions is the practice of the US lease stipulations for the Gulf of Mexico, where the Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE) receives the contingent royalty at the end of the production lease year, which consists of 365 days, commencing on full production. 57 54

Arts. 160(2)(f)(i) and 162(2)(o)(i). See further Schatz on Art. 157 MN 6–8. On the issue of convertible currency see ILA Outer Continental Shelf Committee: Report on Article 82 of the UN Convention on the Law of the Sea, Rio de Janeiro Conference (2008), para. 2.10, available at http:// www.ila-hq.org/en/committees/index.cfm/cid/33. 56 ISA Technical Study No. 12 (note 47), 31. 57 United States Lease Stipulations (Gulf of Mexico, 2008), reproduced in: ISA Implementation of Article 82 (note 45), 7–8 (paras. 3, 9). The predecessor of BOEMRE at the time the leases were issued was the Minerals Management Service (MMS). 55

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Art. 82 does not expressly stipulate whether payments and contributions are determined on the basis of gross or net production.58 The reference to ‘all production’ leads to the inference that the gross is intended,59 and this interpretation, especially when considered together with the grace period, is supported by the records of the UNCLOS III. The five-year grace period was clearly intended to enable producers to recover a substantial portion of their development costs. There was specific consideration of determining payment and contribution amounts on net production as an alternative, but negotiators opted for a simpler approach which minimized accounting exercises which were expected to be different from one jurisdiction to another.60 Related to this interpretation matter is the phrase ‘value or volume of production’ and whether utilization of one or the other produces the same amount to be paid or contributed. Part of the difficulty is the lack of clarity concerning value of production. It is possible that the intended meaning is the well-head value, presumably according to prevailing market prices, which is consistent with oil and gas production. 61 However, it is not clear that this interpretation would apply to other mineral resources. In any case, in calculating production, Art. 82 expressly excludes production of resources used in connection with exploitation.62

4. ‘[f]or the sixth year, the rate of payment or contribution shall be 1 per cent of the value or volume of production at the site’ and ‘shall increase by 1 per cent for each subsequent year’ 17

The Art. 82 obligation commences at one percent on the sixth year of production and thereafter increases at the rate of one percent per year until the rate of seven percent is reached. It is applicable to production at a site, but again it is not clear what ‘site’ actually refers to. In relation to hydrocarbons, it could relate to a well or field, as distinct from a license area. Different wells or fields in the same license area might not be brought into production at the same time. A narrow interpretation would thus trigger separate applications of the obligation for each well or field. It also does not differentiate between fields that might be layered in whole or in part over each other. A more reasonable and realistic construction is that site refers to a license area (in the case of hydrocarbons) because fiscal arrangements tend to be defined in legislation as well as the contractual arrangement for the license area concerned.

5. ‘[the rate] shall remain at 7 per cent’ 18

The highest rate is seven percent, commencing on the thirteenth year of production. Producers are provided relief for production costs only during the first five years of production, although clearly such costs will continue to be incurred throughout the life of the field, but presumably at lower rates than the initial development period. The length of the five-year grace period and the incremental scale, although initially inspired by offshore development and production practices, are more reflective of the compromise needed to complete the UNCLOS III package deal than actual practice. Alternative approaches failed to secure broad support.63 58

Chircop/Marchand (note 46), 297–298. Ibid.; ILA Outer Continental Shelf Committee Report (note 51), para. 2.8 comes to a similar conclusion on this point. 60 Formulation of Main Trends (note 31), 362 (Provision VIII, Formula A); Nordquist/Park (note 21), 98–100. 61 Nordquist/Park (note 21), 98–99. 62 E. g., a portion of the resource used to generate energy for production, gas re-injected into the well to enhance production and gas which is flared. Chircop/Marchand (note 46), 296. 63 E. g., an Austrian proposal that would have applied different rates for production at various distances: ibid., 289. 59

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6. ‘[a] developing State which is a net importer […] is exempt from making such payments’ During the Sea-Bed Committee and UNCLOS III, negotiations considered whether the 19 Art. 82 obligation should apply to developing States.64 The final compromise text provides an exemption to developing States65 exploiting non-living resources of the ECS that are net importers of the mineral resource produced and which would otherwise be captured by Art. 82. There is a minor inconsistency in Art. 82 (3) concerning the reference to mineral resource, as at the same time the obligation as a whole applies to all non-living resources. This discrepancy, if it can be considered as such, has been explained by an ISA technical study which offers an interpretation penned to the broader concept of non-living resources. This study correctly points out that UNCLOS III negotiations did not differentiate between non-living and mineral resources.66 The reference to mineral resource serves to emphasize the specificity of the exemption with reference to production from a particular non-living resource that qualifies for the exemption. Accordingly, the exemption does not extend to production from all non-living resources by developing States. Presumably, a developing State enjoying the exemption is still entitled to benefit from 20 payments and contributions made by other State Parties because there is no express disqualification in the Convention. At the most, the Authority might consider this hypothetical situation in developing equitable criteria for the distribution of payments and contributions to beneficiaries.

7. ‘payments or contributions shall be made through the Authority’ An important element in Art. 82 (4) is that payments and contributions are made 21 through, not to the Authority. The difference is between payments and contributions received, held in trust by the Authority until they are distributed to the beneficiaries identified in UNCLOS, and payments and contributions made to the Authority for the purpose of discharging its own mandate. This matter was debated at length in the Sea-Bed Committee and UNCLOS III and the alternative argument that payments should be made to the Authority did not secure sufficient support. The consequence is that Art. 82 does not expressly provide the Authority with the right to deduct part of the payments and contributions to cover its own costs in administering its responsibilities in this provision. However, it is submitted that such a narrow interpretation is unreasonable, impractical and possibly not consistent with the spirit of the provision and UNCLOS as a whole. The Authority administers Art. 82 responsibilities on behalf of State Parties and for the purpose of distributing benefits to State Parties. If its costs cannot be recovered from the payments and contributions themselves, then the costs of administering the provision would have to be covered from the assessed contributions of State Parties to the Authority. 67 Although not expressly stated, the implementation of Art. 82 will require cooperation 22 between the ECS State concerned and the Authority. Procedures for the determination and making of payments and contributions will need to be established. Both the ECS State and the Authority will need to develop internal procedures for the discharge of their respective responsibilities and for jointly addressing overlapping responsibilities. Art. 82 does not provide guidance for procedures for the determination of due amounts, regularity of payments, form and timing of payment or contribution amounts, and so on. While the Convention establishes a duty of good faith for all State Parties in exercising their rights and performing their obligations (� Art. 300), the implementation of Art. 82 requires a working 64

Nordquist/Nandan/Rosenne (note 21), 932–947. See infra, MN 25–27. 66 ISA Technical Study No. 4 (note 45), 36. 67 See generally Ferrara on Art. 171. 65

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relationship between ECS States and the Authority because, as noted earlier, the implementation of the Authority’s responsibilities are dependent on those of the ECS State. It should also be borne in mind that the Authority, although enjoying its own legal personality, effectively consists of the totality of its membership, represented through the Assembly and Council. Thus the Authority, as well as State Parties, should be informed of how the Art. 82 obligation is to be performed consistently with the provisions of the Convention. 23 Because of the complexity of Art. 82 and interdependence of the respective obligations of ECS States and the Authority, the payments, contributions and receiving procedures aspects of this provision call for a novel implementation process. Two ISA technical studies explore the possibility of a model agreement between the ECS State and the Authority. 68 For its part, and because it is the common focal point for the receipt of payments and contributions by all eligible ECS States, the Authority could develop a framework arrangement in consultation with State Parties. The Council is authorised by the Convention to develop rules, regulations and procedures in relation to Art. 82 and within this power it is in a position to recommend such a framework to the Assembly, without trenching on those aspects of Art. 82 which are clearly ECS State prerogatives, such as the option to make payments or contributions in kind. 24 The Council is the executive organ of the Authority tasked with recommending ‘to the Assembly rules, regulations and procedures on the equitable sharing of financial and other economic benefits derived from activities in the Area and the payments and contributions made pursuant to Article 82, taking into particular consideration the interests and needs of developing States and peoples who have not attained full independence or other self-governing status’. 69

The potential role of the Council as initiator of the process of implementation of Art. 82, at least insofar as the role of the Authority is concerned, is clear. It is anticipated that the Authority will need to develop an implementing framework and process. The Assembly is empowered with final consideration and approval of any such rules, regulations and procedures proposed by the Council, and may request the Council to reconsider recommendations.70

8. ‘shall distribute them to States Parties to this Convention […] taking into account the interests and needs of developing States’ 25

The sharing of marine resources has been a central issue in the development of the international law of the sea since Malta’s 1967 initiative, and this provision is central to that discourse. Art. 82 (4) provides the Authority with the duty and power to distribute the payments and contributions made by ECS States to other State Parties of the Convention. It is required to do so in accordance with equitable sharing criteria ‘taking into account the interests and needs of developing States, particularly the least developed and the land-locked among them.’ There is inconsistency between the designated beneficiaries in Art. 82 (4) and those listed in the duty of the Council to make recommendations to the Assembly in this regard in Art. 162 (2)(o)(i). This latter provision includes ‘taking into particular consideration the interests and needs of developing States and peoples who have not attained full independence or other self-governing status.’ One ISA technical study proposes that ‘the inconsistency should not be read as substantive because the two provisions provide criteria that are cumulatively applicable to the distribution of benefits in Article 82.’ 71 68 ISA Technical Study No. 4 (note 45), 45–67, proposed an ‘Article 82 Agreement’. Subsequently, ISA Technical Study No. 12 (note 47), 31, recommended that the ISA ‘explore further the concept of a Memorandum of Understanding between an OCS State and the ISA, or a guidance document, and take steps to prepare a draft for discussion, bearing in mind that such instruments will be essentially voluntary and aim to provide practical guidelines and advice to assist OCS States in the implementation of Article 82.’ 69 Art. 162 (2)(o)(i). See generally van Doorn on Art. 162. 70 Art. 160(2)(f)(i). 71 ISA Technical Study No. 4 (note 45), 39.

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While the Authority will need to develop equitable sharing criteria, the Convention provides 26 little guidance in this regard, other than references to States at different levels of economic development (i. e., developing States), geographical constraints (i. e., land-locked States) and peoples who have not yet attained independence or other self-governing status. The Authority is mandated to distribute benefits to State Parties and not to a sub-national entity. Identifying needs and interests imposes another level of political and socio-economic complexity, suggesting that the criteria will need to have broad-based political support. Existing economic development indices currently in use by intergovernmental organizations could be of assistance to the Authority in developing equitable criteria. It is conceivable that the Authority might need to develop its own index because it has to take into consideration the designation of landlocked developing State Parties as a beneficiary group. One ISA technical study attempts to address some of these issues and identifies a tentative ranking as follows: ‘(1) least developed land-locked State Parties and peoples who have not attained full independence or other self-governing status; (2) other developing State Parties (including other land-locked developing states); and (3) other State Parties (including newly industrialized, developed land-locked, developed states generally).’72

Art. 82 and the powers conferred on the Authority for its implementation, while providing 27 general guidance for the distribution of benefits, do not indicate purposes for the use of those benefits or empower the Authority with identifying such purposes. Similarly, the Convention, in particular the powers granted to the Council and Assembly, do not include an overseeing role over how beneficiaries utilise the benefits distributed by the Authority or an obligation on beneficiaries to report on the use of payments and contributions. During the negotiation of this provision at UNCLOS III, and also earlier in the Sea-Bed Committee, some States were of the view that the benefits should simply be distributed to States without accompanying conditions. One ISA technical study notes that ‘it will be difficult to develop equitable sharing criteria with reference to interests and needs without a sense of the application of the payments and contributions.’73 In this regard, the study suggested that the Millennium Development Goals could serve as guidance in identifying purposes for the benefits that are transferred. Nor is it clear in the Convention how benefits should be transferred, for example whether as direct payment to a State or possibly through an international development programme or institution. State Parties to the Convention will need to provide guidance to the Authority on these issues in a contemporary context.74

Article 83 Delimitation of the continental shelf between States with opposite or adjacent coasts 1. The delimitation of the continental shelf between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution. 2. If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV. 3. 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 arrange72

Ibid., 39–40. Ibid., 42. See also ISA Technical Study 12 (note 47), 31–32. This study suggested that the Finance Committee of the ISA may have a role to play. 74 For more in-depth consideration of the tasks that lie ahead of the Authority, see ibid., 53 et seq.; Lodge (note 46), 323–333; Chircop, Operationalizing Article 82 (note 46), 395–412. 73

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ments of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation. 4. Where there is an agreement in force between the States concerned, questions relating to the delimitation of the continental shelf shall be determined in accordance with the provisions of that agreement. Bibliography: British Institute of International and Comparative Law, Report on the Obligations of States under Articles 74 (3) and 83 of UNCLOS in Respect of Undelimited Maritime Area (2016); Signe Veierud Busch, Establishing Continental Shelf Limits Beyond 200 Nautical Miles by the Coastal State: A Right of Involvement for Other States? (2016); Henry Burmester, Torres Strait Treaty: Ocean Boundary Delimitation by Agreement, AJIL 76 (1982) 321–349; Lucius Caflisch, The Delimitation of Marine Spaces between States with Opposite and Adjacent Coasts, in Rene-Jean Dupuy/Daniel Vignes (eds.), A Handbook on the New Law of the Sea (1991), 425– 499; Philippe Cahier, Les sources du droit relatif a` la de´limitation de plateau continental, in: Daniel Bardonnet/ Jean Combacau/Pierre-Marie Dupuy/Prosper Weil (eds.), Le droit international au service de la paix, de la justice et du de´veloppement: me´langes Michel Virally (1991), 175–182; Jonathan I. Charney/Lewis M. Alexander (eds.), International Maritime Boundaries, vol. I (1993); Jonathan I. Charney/Robert W. Smith (eds.), International Maritime Boundaries, vol. IV (2002); Hungdah Chiu, Some Problems Concerning the Application of the Maritime Boundary Delimitation Provisions of the 1982 United Nations Convention on the Law of the Sea Between Adjacent or Opposite States, Md. J. Int’l L. & Trade 9 (1985), 1–17; Robin Churchill, Dispute Settlement Under the UN Convention on the Law of the Sea: Survey for 2007, IJMCL 23 (2008), 601–642; Thomas Cottier, Equitable Principles of Maritime Delimitation: The Quest for Distributive Justice in International Law (2015); Haritini Dipla, Le re´gime juridique des ˆıles dans le droit international de la mer (1984); Malcolm Evans, Relevant Circumstances and Maritime Delimitation (1987); Malcolm Evans, Maritime Boundary Delimitation, in: Donald R. Rothwell/Alex G. Oude Elferink/Karen N. Scott/Tim Stephens (eds.) The Oxford Handbook of the Law of the Sea (2015), 254–279; Malcolm Evans, Maritime Boundary Delimitation: Whatever Next?, in: Jill Barret/Richard Barnes (eds.), Law of the Sea: UNCLOS as a Living Treaty (2016), 41–79; Stephen Fietta/Robin Cleverly, A Practitioner’s Guide to Maritime Boundary Delimitation (2016); Max Herriman/Martin Tsamenyi, The 1997 Australia-Indonesia Maritime Boundary Treaty: A Secure Legal Regime for Offshore Resource Development? ODIL 29 (1998), 361–396; S. P. Jagota, Maritime Boundary (1985); Natalie Klein, Provisional Measures and Provisional Arrangements in Maritime Boundary Disputes, IJMCL 21 (2006), 423–460; Robert Kolb, Case Law on Equitable Maritime Delimitation: Digest and Commentaries (2003); Rainer Lagoni/Daniel Vignes (eds.), Maritime Delimitation (2006); Bjarni Ma´r Magnu´sson, The Continental Shelf beyond 200 Nautical Miles: Delineation, Delimitation and Dispute Settlement (2015); Ben Milligan, The Australia-Papua New Guinea Torres Strait Treaty: A Model for Cooperative Management of the South China Sea?, in: Robert Beckman/Ian Townsend-Gault/Clive Schofield/Tara Davenport/Leonardo Bernard (eds.), Beyond Territorial Disputes in the South China Sea: Legal Frameworks for the Joint Development of Hydrocarbon Resources (2013), 268–288; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Daniel P. O’Connell, The International Law of the Sea, vol. II (1984); Victor Prescott, Current Legal Developments: Australia/Indonesia, IJMCL 12 (1997), 533–547; Yoshifumi Tanaka, Current Legal Developments: International Court of Justice, IJMCL 23 (2008), 327–346; Yoshifumi Tanaka, Predictability and Flexibility in the Law of Maritime Delimitation (2006); Yoshifumi Tanaka, The International Law of the Sea (2nd edn. 2015); Yoshifumi Tanaka, Unilateral Exploration and Exploitation of Natural Resources in Disputed Areas: A Note on the Ghana/Coˆte d’Ivoire Order of 25 April 2015 before the Special Chamber of ITLOS, ODIL 46 (2015), 315–330; Yoshifumi Tanaka, Reflections on Maritime Delimitation in the Nicaragua/ Honduras Case, Zao¨RV 68 (2008), 903–937; Gerard J. Tanja, The Legal Determination of International Maritime Boundaries (1990); Prosper Weil, Perspective du droit de la de´limitation maritime (1988); Shunji Yanai, International Law Concerning Maritime Boundary Delimitation, in: David Joseph Attard/Malgosia Fitzmaurice/ Norman A Martı´nez Gutie´rrez (eds.), The IMLI Manual on International Maritime Law, vol. I (2014), 304–341. Cases: Arbitration between Barbados and the Republic of Trinidad and Tobago, Relating to the Delimitation of the Exclusive Economic Zone and the Continental Shelf between Them (2006), RIAA XXVII, 147; Arbitration between Guyana and Suriname (Guyana v. Suriname) (2007), RIAA XXX, 1; Arbitration under the Timor Treaty (TimorLeste v. Australia) (pending); Award of the Arbitral Tribunal in the Second Stage – Maritime Delimitation (Eritrea v. Yemen), 17 December 1999, RIAA XXII, 335; Case Concerning the Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic (1977), RIAA XVIII, 3; Case Concerning the Delimitation of Maritime Boundary between Guinea-Bissau and Senegal, 31 July 1989, RIAA XX, 119; Conciliation between The Democratic Republic of Timor-Leste and The Commonwealth of Australia (pending); Delimitation of the Maritime Boundary between Guinea and Guinea-Bissau (1985), RIAA XIX, 149; Delimitation of Maritime Areas between Canada and France (1992), RIAA XXI, 265; ICJ, Aegean Sea Continental Shelf Case (Greece v. Turkey), Interim Protection, Order of 11 September 1976, ICJ Reports (1976), 3; ICJ, Case Concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment of 3 June 1985, ICJ Reports (1985), 13; ICJ, Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment of 24 February 1982, ICJ

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83

Reports (1982), 18; ICJ, Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States of America), Judgment of 12 October 1984, ICJ Reports (1984), 246; ICJ, Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment of 10 October 2002, ICJ Reports (2002), 303; ICJ, Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment of 16 March 2001, ICJ Reports (2001), 40; ICJ, Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), Judgment of 14 June 1993, ICJ Reports (1993), 38; ICJ, Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment of 3 February 2009, ICJ Reports (2009), 61; ICJ, Maritime Dispute (Peru v. Chile), Judgment of 24 January 2014, ICJ Reports (2014), 3; ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Netherlands/ Denmark), Judgment of 20 February 1969, ICJ Reports (1969), 3; ICJ, Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia) (pending); ICJ, Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment of 19 November 2012, ICJ Reports (2012), 624; ICJ, Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment of 8 October 2007, ICJ Reports (2007), 659; In the Matter of the Bay of Bengal Maritime Boundary Arbitration between the People’s Republic of Bangladesh and the Republic of India (2014), available at: http://www.pca-cpa.org; ITLOS, Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh v. Myanmar), Judgment of 14 March 2012, ITLOS Reports 12 (2012), 4; PCA, Grisbådarna Case (Norway v. Sweden), Award of 23 October 1909, RIAA XI, 147 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘The delimitation of the continental shelf’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘between States with opposite or adjacent coasts’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘by agreement’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. ‘Article 38 of the Statute of the International Court of Justice’ . . . . . . . . . . . . . . . . . . 5. ‘an equitable solution’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. ‘the procedures provided for in Part XV’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. ‘provisional arrangements of a practical nature’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8. ‘not to jeopardize or hamper the reaching of the final agreement’ . . . . . . . . . . . . . . 9. ‘Where there is an agreement in force between the States concerned’. . . . . . . . . . .

1 2 6 6 7 8 10 12 19 20 21 25

I. Purpose and Function Art. 83 provides rules concerning the delimitation of the continental shelf. Art. 83 is 1 essentially identical to Art. 74 regarding the delimitation of the exclusive economic zone (EEZ).1 It follows that the delimitation of the continental shelf and that of the EEZ are governed by the same rules.2 Whilst Art. 76 deals with the definition and determination of the outer limits of the continental shelf,3 Art 83 provides rules concerning the delimitation where the legal title over the continental shelf overlaps with that of another State. Like Art. 74, Art. 83 consists of four provisions. Art 83 (1) contains a substantive rule governing the delimitation of the continental shelf. Art. 83 (2) relates to a procedural rule with regard to the settlement of disputes concerning the continental shelf delimitation. Art. 83 (3) deals with 1

For further detail, see Tanaka on Art. 74. Thus the commentary on Art. 83 partly overlaps Tanaka on Art. 74. For a legislative history of these provisions, see Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 952 et seq; S. P. Jagota, Maritime Boundary (1985), 219–272; Gerald J. Tanja, The Legal Determination of International Maritime Boundaries (1990), 81–116; Yoshifumi Tanaka, Predictability and Flexibility in the Law of Maritime Delimitation (2006), 44–47; Shunji Yanai, International Law Concerning Maritime Boundary Delimitation, in: David Joseph Attard/Malgosia Fitzmaurice/ Norman A Martı´nez Gutie´rrez (eds.), The IMLI Manual on International Maritime Law, Volume I: The Law of the Sea (2014), 309–312; Thomas Cottier, Equitable Principles of Maritime Delimitation: The Quest for Distributive Justice in International Law (2015), 213–217. See also Dissenting Opinion of Judge Oda in: ICJ, Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment of 24 February 1982, ICJ Reports (1982), 18, paras. 131–145. 3 See Parson on Art. 76 MN 26–33. 2

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provisional arrangements before reaching the final agreement. Finally, Art. 83 (4) concerns the relationship between Art. 83 and the special agreement concerning the delimitation of the continental shelf. Without rules governing maritime delimitation in spaces where coastal State jurisdictions overlap, the legal uses of maritime spaces cannot be enjoyed effectively. Maritime delimitation thus occupies the central place within the law of the sea. In this sense, Art. 83, along with Art. 74, is of particular importance in the Convention.

II. Historical Background 2

Maritime delimitation began to take place around the beginning of the twentieth century. 4 The 1909 Grisbådarna arbitration between Norway and Sweden is an early case in this field. 5 However, it was after World War II when the delimitation of the continental shelf was really at issue in international law. On 28 September 1945, the United States took the decisive step with the Truman Proclamation to extend its jurisdiction over the natural resources on the continental shelf. The action of the United States created a chain reaction and the continental shelf was rapidly crystallised as a legal institution.6 Yet claims over the continental shelf created a problem with the delimitation of the continental shelf since coastal State jurisdiction with regard to the continental shelf overlaps in many parts of the world oceans. At UNCLOS I, rules concerning the delimitation of the territorial sea, the contiguous zone and the continental shelf were enshrined in Arts. 12 and 24 (3) of the Convention on the Territorial Sea and the Contiguous Zone (CTSZ) and in Art. 6 of the Convention on the Continental Shelf (CSC), respectively. Like Art. 12 of the Convention on the Territorial Sea and the Contiguous Zone concerning the delimitation of the territorial sea, Art. 6 CSC provides the triple rule of ‘agreement-equidistance (median line)-special circumstances’ as follows: 7 ‘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 justified by special circumstances, the boundary is the median line, every point of which is equidistant from the nearest points 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 absence of agreement, and unless another boundary line is justified by special circumstances, the boundary shall be determined by application of the principle of equidistance from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.’

Yet, the relationship between the element of ‘equidistance’ and that of ‘special circumstances’ remained less clear. Nor did Art. 6 CSC give a clear meaning for special circumstances. Hence, Art. 6 CSC contained some elements of uncertainty. Furthermore, the customary law character of the equidistance method was denied by the International Court of Justice (ICJ) in the 1969 North Sea Continental Shelf Cases. Thus, as will be seen below, the centrality of the equidistance method in the delimitation of the continental shelf became controversial at UNCLOS III. 3 At UNCLOS III, the negotiations concerning the delimitation of the EEZ and those relating to the delimitation of the continental shelf at the UNCLOS III were carried out together. 8 Like Art. 74 (1), the legislative history of Art. 83 (1) was characterised by the confrontation between the supporters of ‘equidistance’ and the supporters of ‘equitable principles’.9 At the Ninth 4 For a general analysis of State practice in this period, see Daniel P. O’Connell, The International Law of the Sea, vol. II (1984), 663–73; Tanja (note 2), 1–20; Tanaka (note 2), 19–32. 5 PCA, Grisbådarna Case (Norway v. Sweden), Award of 23 October 1909, RIAA XI, 147. 6 US Presidential Proclamation 2667, Policy of the United States With Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf of 28 September 1945; see further Maggio on Art. 77 MN 4–8. 7 Entered into force 10 June 1964. 8 Nordquist/Nandan/Rosenne (note 2), 801. 9 For a more detailed review of the legislative process of Art. 74 and 83, see Tanaka on Art. 74 MN 4–9.

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Session, on the basis of the proposal of the Chairman of Negotiating Group 7, Art. 83 (1), along with Art. 74 (1), of the Informal Composite Negotiating Text (ICNT)/Revision 2 provided that: ‘The delimitation of the continental shelf between States with opposite or adjacent coasts shall be effected by agreement in conformity with international law. Such an agreement shall be in accordance with equitable principles, employing the median or equidistance line, where appropriate, and taking account of all circumstances prevailing in the area concerned.’10

Yet the text remained controversial and no consensus was reached on this matter. In 1981, one year before the adoption of UNCLOS, T. T. B. KOH, President of UNCLOS III, proposed a draft article which would bring about a compromise and his proposal enjoyed widespread and substantial support in the two most interested groups of delegations and in the Conference as a whole.11 On 28 August 1981, the draft was eventually incorporated into the Draft Convention,12 which became, finally, Art. 83 (1) in the Convention. The legislative history of Art. 83 (3) was nearly parallel to that of Art. 74 (3). 13 The 4 Informal Single Negotiating Text (ISNT), Part II, of 1975 stipulated that: ‘Pending agreement, no State is entitled to extend its continental shelf beyond the median line or the equidistance line’.14 This provision seemed to imply that the coastal State is entitled to claim its continental shelf up to the median line or the equidistance line within areas where delimitation was not or could not be effected. Subsequently, however, the reference to ‘the median line or the equidistance line’ was omitted in the Revised Single Negotiating Text (RSNT), Part II, of 1976. Art. 71 (3) of the RSNT stipulated that: ‘Pending agreement or settlement, the States concerned shall make provisional arrangements, taking into account the provisions of paragraph 1’.15 Although the text of this provision remained unchanged in the ICNT 197716 and in the ICNT Revision 1, of 1979,17 the text was modified in the ICNT Revision 2 of 1980, as follows:18 ‘Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of understanding and co-operation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation.’

The formulation remained unchanged in the 1981 Draft Convention 19 and it eventually became Art. 83 (3). Art. 83 (2) was formulated at a comparatively early stage and the same text of the provision 5 was provided in the ICNT of 1977. After this point, no change was made to this provision. By the same token, the text of Art. 83 (4) remained unchanged from the ISNT Part II, of 1975.

10 UNCLOS III, Informal Composite Negotiating Text, UN Doc. A/CONF.62/WP.10 (1980) OR VIII, 1, 16 and 17. 11 UNCLOS III, 154th Plenary Meeting, UN Doc. A/CONF.62/SR.154 (1981), 39, 39–42 (Report of the President on the Consultations on Delimitation). See also UNCLOS III, Proposal on Delimitation, UN Doc. A/ CONF.62/WP.11 (1981, mimeo.), in: Renate Platzo¨der (ed.), Third United Nations Conference on the Law of the Sea: Documents, vol. IX (1986), 474; Tanja (note 2), 114–115. 12 UNCLOS III, Draft Convention on the Law of the Sea, UN Doc. A/CONF.62/L.78 (1981), OR XV, 172, 187. 13 See also Tanaka on Art. 74 MN 4–9. 14 UNCLOS III, Informal Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/PART II (1975), OR IV, 152, 162 (Art. 70 (3)). 15 UNCLOS III, Revised Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/REV.1/PART II (1976), OR V, 151, 164. 16 UNCLOS III, Informal Composite Negotiating Text, UN Doc. A/CONF.62/WP.10 (1977), OR VIII, 17 (Art. 83 (3). 17 UNCLOS III, Informal Composite Negotiating Text (Revision 1), UN Doc. A/CONF.62/WP.10/REV.1 (1979), OR VIII, 57 (Art. 83 (3)). 18 UNCLOS III, Informal Composite Negotiating Text (Revision 2), UN Doc. A/CONF.62/WP.10/REV.2/ CORR. 2 (1980), OR VIII, 59 (Art. 83 (3)). 19 UNCLOS III, Draft Convention on the Law of the Sea (Informal Text), UN Doc. A/CONF.62/WP.10/REV.3 (1980), OR VIII, 189 (Art. 74 (3)).

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III. Elements 1. ‘The delimitation of the continental shelf’ 6

In light of the difference between the ‘equities’ pertaining to the sea-bed and those relating to water spaces, the application of an identical rule does not necessary mean that the delimitation line on the continental shelf will coincide with that of the EEZ. For example, marine living resources may be relevant for the EEZ boundary, whilst a continental shelf boundary may require consideration of the location of mineral deposits. In that case, a delimitation line that is equitable for the superjacent waters is not necessarily equitable for the seabed. A divergence of elements relevant for the seabed and superjacent waters creates the risk of creating two competing lines and creates a situation where part of the EEZ belongings to one State may overlap part of another State’s continental shelf.20 However, judicial practice suggests that international courts and tribunals have always drawn a single maritime boundary both for the EEZ and the continental shelf.21 In practice, with a few exceptions, a considerable majority of maritime delimitation treaties establish a single maritime boundary. Notable exceptions include: the 1978 Torres Strait Treaty between Australia and Papua New Guinea 22 and the 1997 Perth Treaty between Australia and Indonesia on the Timor and Arafra Seas. 23 The Torres Strait Treaty drew four different boundaries: (i) a seabed jurisdiction boundary, (ii) a fisheries jurisdiction boundary, (iii) a single maritime boundary for both the seabed and fisheries, and (iv) a protected zone boundary. The seabed jurisdiction boundary and the fisheries jurisdiction boundary do not coincide. As a consequence, in the ‘top hat’ area where the boundaries for the seabed and the superjacent waters were separated, Australia exercises fisheries jurisdiction, while Papua New Guinea has seabed jurisdiction. The Perth Treaty also established continental shelf and EEZ boundaries which do not coincide. 24 Furthermore, the 1970 Agreement between Indonesia and Malaysia creates a sharp triangular zone where Malaysia’s territorial sea overlaps Indonesia’s continental shelf.25

7

In earlier cases concerning maritime delimitation, international courts and tribunals attached great importance to the distinction between opposite and adjacent coasts when evaluating the relevance of the application of the equidistance method. International courts and tribunals have been less favourable to the application of the equidistance method to delimitation between States with adjacent coasts, even though they have applied to that

2. ‘between States with opposite or adjacent coasts’

20

Tanaka (note 2) 15–16. See Tanaka on Art. 74 MN 10. 22 Treaty between Australia and the Independent State of Papua New Guinea Concerning Sovereignty and Maritime Boundaries in the Area between the Two Countries, Including the Area Known as Torres Straits, And Related Matters, 18 December 1978, ILM 18 (1997), 291. See also Choon-ho Park, Central Pacific and East Asian Maritime Boundaries, in: Jonathan I. Charney/Lewis M. Alexander (eds.), International Maritime Boundaries, vol. I (1993), 929–934 (Australia-Papua New Guinea); Henry Burmester, Torres Strait Treaty: Ocean Boundary Delimitation by Agreement, AJIL 76 (1982), 321; Ben Milligan, The Australia-Papua New Guinea Torres Strait Treaty: A Model for Cooperative Management of the South China Sea?, in: Robert C. Beckman (ed.), Beyond Territorial Disputes in the South China Sea: Legal Frameworks for the Joint Development of Hydrocarbon Resources (2013), 268. 23 Treaty between the Government of Australia and the Government of Indonesia Establishing an Exclusive Economic Zone Boundary and Certain Seabed Boundaries of 14 March 1997, ILM 36 (1997), 1053 (not in force); Jonathan I. Charney/Robert W. Smith (eds.), International Maritime Boundaries, vol. IV (2002), 2714. 24 See Tanaka (note 2), 338–343; Max Herriman/Martin Tsamenyi, The 1997 Australia-Indonesia Maritime Boundary Treaty: A Secure Legal Regime for Offshore Resource Development? ODIL 29 (1998), 361; Victor Prescott, Current Legal Developments: Australia/Indonesia, IJMCL 12 (1997), 533. 25 Treaty between the Republic of Indonesia and Malaysia Relating to the Delimitation of the Territorial Seas of the Two Countries in the Strait of Malacca of 17 March 1970 (entered into force 8 October 1971), reproduced in: Charney/Alexander (note 23), 1035. 21

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method to delimitation between States with opposite coasts. An essential reason was the distorting effect created by the application of the equidistance method in a situation of adjacency. The International Court of Justice (ICJ), in the North Sea Continental Shelf Cases, explained this point as follows that: ‘[W]hereas a median line divides equally between the two opposite countries areas that can be regarded as being the natural prolongation of the territory of each of them, a lateral equidistance line often leaves to one of the States concerned areas that are a natural prolongation of the territory of the other’. 26

This dictum was echoed by the Court in the Libya/Malta Case, stating that: [I]t is well to recall the precise reason why the Court in its 1969 Judgment contrasted the effect of an equidistance line between opposite coasts and the effect between adjacent coasts. In the latter situation, any distorting effect of a salient feature might well extend and increase through the entire course of the boundary; whilst in the former situation, the influence of one feature is normally quickly succeeded and corrected by the influence of another, as the course of the line proceeds between more or less parallel coasts.27

In the Qatar/Bahrain Case of 2001, however, the ICJ applied the equidistance method at the first stage of the delimitation line in a situation of adjacency. 28 After this case, judicial practice shows a clear tendency that international courts and tribunals apply the equidistance line at the first stage of maritime delimitation regardless of the configuration of the coasts, unless there are compelling reasons, such as highly unstable coastlines, 29 as a result of which the establishment of a provisional equidistance line is not feasible. In this sense, it could be said that the distinction made between opposite and adjacent coasts has been abandoned in the international jurisprudence concerning maritime delimitations. 30 It follows that the same delimitation method applies to the delimitation of the continental shelf at the first stage of the delimitation process, regardless of the configurations of the coasts.

3. ‘by agreement’ In the Gulf of Maine Case, the Chamber of the ICJ referred to a ‘fundamental norm’ 8 applicable to every maritime delimitation between neighbouring States. The first rule of the fundamental norm is that maritime delimitation must be sought and effected by means of an agreement in good faith.31 Delimitation by agreement is fundamental for the international law of maritime delimitation and the same applies to the delimitation of the continental shelf. The reference to ‘by agreement’ in conjunction with ‘in order to achieve an equitable 9 solution’ in Art. 83 (1) may seem to contradict the rule of international law according to which States may freely determine the content of agreements in the absence of jus cogens. As Art. 83 (1) cannot be considered jus cogens, States may freely conclude any agreements even if they are not equitable.32 Like Art. 74 (1), Art. 83 (1) seems to suggest that delimitation shall be effected solely by agreement. However, this interpretation does not conform to reality. In fact, 26 ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Netherlands/Denmark), Judgment of 20 February 1969, ICJ Reports (1969), 3, 37 (para. 58). 27 ICJ, Case Concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment of 3 June 1985, ICJ Reports (1985), 13, 51 (para. 70). 28 ICJ, Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment of 16 March 2001, ICJ Reports (2001), 40, 111 (para. 230). 29 This was the reason why the ICJ did not apply the equidistance line in a part of the delimitation process in the Nicaragua/Honduras Case: ICJ, Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment of 8 October 2007, ICJ Reports (2007), 659. 30 Robert Kolb, Case Law on Equitable Maritime Delimitation: Digest and Commentaries (2003), 548. See also Tanaka on Art. 74. 31 ICJ, Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States of America), Judgment of 12 October 1984, ICJ Reports (1984), 246, 299–300, para. 112. 32 Lucius Caflisch, The Delimitation of Marine Spaces between States with Opposite and Adjacent Coasts, in Rene-Jean Dupuy/Daniel Vignes (eds.) A Handbook on the New Law of the Sea (1991), 425, 484; Haritini Dipla, Le re´gime juridique des ˆıles dans le droit international de la mer (1984), 221, 225.

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disputes concerning delimitation of the continental shelf have frequently been settled through international adjudication. On account of these facts, it is reasonable to conclude that Art. 83 (1) is not intended to rule out judicial settlement in the absence of such an agreement. 33

4. ‘Article 38 of the Statute of the International Court of Justice’ The reference to ‘article 38 of the Statute of the International Court of Justice’ calls for three comments. First, in the context of continental shelf delimitation, the reference to Art. 38 is not completely meaningless since it makes it possible to turn to the 1958 Geneva Convention on the Continental Shelf. Even so, the fact remains that it does not spell out the law applicable to maritime delimitation simply by enumerating the sources of international law. Thus, it is not of much use in determining the applicable law.34 Second, since the ‘general principles of law recognized by civilized nations’ has no role to play in the context of maritime delimitation, the general principles mentioned in Art. 38 of the Statute of the ICJ may not be useful.35 Third, like Art. 74 (1), the text of Art. 83 (1) refers to Art. 38 of the Statute of the ICJ as a whole. However, Art. 38 (2) ICJ Statute defines decisions ex aequo et bono, i. e. extra-legal considerations. Thus, some argue that the reference in Art. 83 (1) should have been limited to paragraph 1 of Art. 38. Yet suggestions to this effect have been defeated in the UNCLOS III.36 Given that Art. 38 (2) applies only when the litigating parties have agreed thereto and, to this day, there is no case where the ICJ gave its judgments on the basis of ex aequo et bono, the reference to Art. 38 as a whole should not be considered problematic. 11 When a UNCLOS State party has ratified the 1958 Convention on the Continental Shelf, the relation between these two Conventions is at issue. Given that Art. 83 of the Convention refers to Art. 38 of the ICJ Statute, it can be considered that Art. 6 of the Convention on the Continental Shelf applies between Parties to both the Geneva Convention and UNCLOS, regardless of Art 311 (1). In fact, Art. 311 (5) provides that Art. 311 ‘does not affect international agreements expressly permitted or preserved by other articles of this Convention’. This provision is thought to be applied to Art. 6 of the Convention on the Continental Shelf since it is ‘preserved’ by the reference to Art. 38 of the ICJ Statute, including the existing treaty, contained in Art. 83 (1) UNCLOS.37 It follows that the triple rule of ‘agreement-equidistancespecial agreement’ under Art. 6 governs the delimitation of the continental shelf between Parties to both the Convention on the Continental Shelf and the UNCLOS. As will be seen, there is a clear trend that international courts and tribunals apply the equidistance method at the first stage of delimitation process. Accordingly, it may be said that the practical difference between the application of Art. 6 of the Convention on the Continental Shelf and that of Art. 83 (1) of the LOSC is thin. 10

5. ‘an equitable solution’ 12

Like Art. 74 (1), Art. 83 (1) offers scant explanation about the contents of ‘an equitable solution’.38 Thus the equitableness of maritime boundaries must be evaluated on a case-by-case basis. The concept of equity in the context of maritime delimitations is embodied in the 33

Caflisch (note 32), 483; see also Tanaka on Art. 74 MN 13–14. Philippe Cahier, Les sources du droit relatif a` la de´limitation de plateau continental, in: Daniel Bardonnet/ Jean Combacau/Pierre-Marie Dupuy/Prosper Weil (eds.), Le droit international au service de la paix, de la justice et du de´veloppement: me´langes Michel Virally (1991), 175. 35 Hungdah Chiu, Some Problems Concerning the Application of the Maritime Boundary Delimitation Provisions of the 1982 United Nations Convention on the Law of the Sea Between Adjacent or Opposite States, Md. J. Int’l L. & Trade 9 (1985), 1, 8. 36 Caflisch (note 32), 485. 37 Ibid., 479. 38 See also Tanaka on Art. 74 MN 16–24. 34

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equitable principles declared by the ICJ in the 1969 North Sea Continental Shelf Cases. In the words of the Court: ‘delimitation is to be effected by agreement in accordance with equitable principles, and taking account of al1 the relevant circumstances, in such a way as to leave as much as possible to each Party all those parts of the continental shelf that constitute a natural prolongation of its land territory into and under the sea, without encroachment on the natural prolongation of the land territory of the other’. 39

After the North Sea Continental Shelf judgment, equitable principles became the core of the international law of maritime delimitation. In the application of equitable principles, a central issue involves the applicability of the 13 equidistance method. In international jurisprudence relating to maritime delimitations, one can identify two contrasting approaches to this matter: an approach which denies the any obligatory method of maritime delimitation and an equidistance/relevant circumstances approach which applies the equidistance method at the first stage and envisages shifting of the provisional equidistance line taking account of relevant circumstances at the second stage of maritime delimitation.40 In essence, the first approach seeks to maintain maximum flexibility, whilst the second approach aims to enhance predictability in the law of maritime delimitation. As noted earlier, the first approach was advocated by the ICJ in the North Sea Continental 14 Shelf Cases. Subsequently the ICJ, in the 1982 Tunisia/Libya Case, further promoted the result-oriented equity approach, stating that: ‘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 equitable result.’ 41

In this case, it accepted neither the mandatory character of equidistance, nor some privileged status of equidistance in relation to other methods.42 This approach was also echoed by the Chamber of the ICJ in the 1984 Gulf of Maine Case.43 In the Libya/Malta Case of 1985, the full court also stressed the result to be achieved, not the means to be applied. 44 Later the first approach was echoed by the 1985 Guinea/Guinea-Bissau Arbitration 45 and the 1992 St. Pierre and Miquelon arbitration between Canada and France. 46 By contrast, the second approach was adopted by the Court of Arbitration in the 1977 15 Anglo-French Continental Shelf Arbitration. In the words of the Court of Arbitration, ‘The Court notes that in a large proportion of the delimitations known to it, where a particular geographical feature has influenced the course of a continental shelf boundary, the method of delimitation adopted has been some modification or variant of the equidistance principle rather than its total rejection. […] [I]t 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.’47 39

North Sea Continental Shelf Cases (note 26), 53 (para. 101 (C) (1)) and 46 (para. 85). For detailed analysis of the approaches adopted by the international courts and tribunals, see Tanaka (note 2) 51 et seq. See also Tanaka on Art. 74. 41 Tunisia/Libya Case (note 2), 59 (para. 70). 42 Ibid., 79 (para. 110). 43 Gulf of Maine Case (note 31), 312–313 (paras. 157–158) and 315 (paras. 162-163). 44 Libya/Malta Case (note 27), 38–39 (para. 45). At the stage of establishing the continental shelf boundary between opposite coasts, 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. Ibid., 52–53 (para. 73). Accordingly, the Court applied the equidistance method at the first stage of continental shelf delimitation, although it supported the result-oriented equity approach. 45 The Guinea/Guinea-Bissau Arbitration, RGDIP 89 (1985), 484, 521 (para. 89) and 525 (para. 102). 46 Delimitation of Maritime Areas between Canada and France (1992), RIAA XXI, 265–341; ILM 31, 1163, para. 38. 47 Case Concerning the Delimitation of Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic (1977), RIAA XVIII, 3, 116 (para. 249, emphasis added). The Court took into account the fact that, in the Atlantic region, Art. 6 was applicable. As Art. 6 is the particular expression of a customary law of equitable principles, the result would be the same as if customary law had been applied. 40

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According to the approach of the Court of Arbitration, the equidistance method is applied at the first stage of delimitation, and then a shift of the equidistance line may be envisaged if relevant circumstances warrant it, in order to achieve an equitable result; equity comes into play as a corrective element. This approach is based on the concept of corrective equity or l’e´quite´ correctrice.48 The approach adopted in the Anglo-French Continental Shelf arbitration was echoed by the ICJ in the 1993 Greenland/Jan Mayen case. 49 Given that the ICJ has been less favourable to the equidistance/relevant circumstances approach, the Greenland/Jan Mayen judgment can be considered as a turning point in case law relating to maritime delimitation. Subsequently, the equidistance/relevant circumstances approach was taken by the 1999 Eritrea/Yemen Arbitration Second Stage.50 Further, in the 2001 Qatar/Bahrain Case, the ICJ applied the equidistance/relevant circumstances approach under customary law in the delimitation between States with adjacent coasts. 51 Moreover, in the Cameroon/Nigeria Case, the ICJ notably applied the equidistance method at the first stage of maritime delimitations under Art. 74 and 83.52 According to the Court’s interpretation, a specific method, i. e., the equidistance method, should be incorporated into Art. 74 (1) and 83 (1). Given that any reference to a specific delimitation method was omitted in drafting those provisions, this is thought to be a judicial innovation. In the 2006 Barbados/Trinidad and Tobago Arbitration, the Arbitral Tribunal took the equidistance/relevant circumstances approach in the operation of maritime delimitation under Art. 74 and 83,53 even though it did not admit of a mandatory character of any delimitation method. The ICJ, in the 2007 Nicaragua/Honduras Case, found that it could not apply the equidistance line because of the very active morphodynamism of the relevant area. Accordingly, it established a single maritime boundary by applying the bisector method. Nonetheless, the Court accepted that: ‘[E]quidistance remains the general rule’.54 In fact, concerning the delimitation around the islands in the dispute area, the Court applied, without any problem, the equidistance/relevant circumstances approach by referring to the Qatar/Bahrain Case. 55 Hence it may be argued that the departure from the previous jurisprudence is only partial. 56 The arbitral tribunal, in the 2007 Guyana/Suriname Arbitration, applied the equidistance/relevant circumstances approach more clearly under Art. 74 and 83.57 16 In the 2009 Black Sea Case between Romania and Ukraine, the ICJ adopted, for the first time in its jurisprudence, the three-stage approach under Art. 74 and 83. 58 The first stage is to establish the provisional equidistance line. At the second stage, the Court will examine whether there are relevant circumstances calling for the adjustment of the provisional equidistance line in order to achieve an equitable result. At the final and third stage, the Court will verify whether the delimitation line does not lead to an inequitable result by 48

Prosper Weil, Perspective du droit de la de´limitation maritime (1988), 179. ICJ, Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), Judgment of 14 June 1993, ICJ Reports (1993), 38, 58–62 (paras. 46–56). 50 PCA, Award of the Arbitral Tribunal in the Second Stage – Maritime Delimitation (Eritrea v. Yemen), 17 December 1999, RIAA XXII, 335, 365 (paras. 131–132). 51 Qatar/Bahrain Case (note 28), 91 (para. 167) and 111 (para. 230). 52 ICJ, Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment of 10 October 2002, ICJ Reports (2002), 303, 441–442 (paras. 288–290). 53 Arbitration between Barbados and the Republic of Trinidad and Tobago, Relating to the Delimitation of the Exclusive Economic Zone and the Continental Shelf between Them (2006), RIAA XXVII, 147, 243 (para. 373). 54 Nicaragua/Honduras Case (note 29), 745 (para. 281). 55 Ibid., 752 (para. 304). 56 Yoshifumi Tanaka, Current Legal Developments: International Court of Justice, IJMCL 23 (2008), 327, 342– 343 (Case Concerning the Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (8 October 2007). See also Robin Churchill, Dispute Settlement Under the UN Convention on the Law of the Sea: Survey for 2007, IJMCL 23 (2008), 601, 622–624. 57 Arbitration between Guyana and Suriname (Guyana v. Suriname) (2007), RIAA XXX, 1, 93 (para. 335) and 95 (para 342). 58 ICJ, Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment of 3 February 2009, ICJ Reports (2009), 61. 49

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applying the test of disproportionality.59 Given that the disproportionality test aims to check for an equitable outcome of the maritime delimitation, it may be argued that the three-stage approach also relies essentially on the concept of corrective equity. In this sense, the threestage approach can be considered as a variation of the equidistance/relevant circumstances approach. The three-stage approach has been applied by the ICJ in its subsequent cases, and it was followed by the International Tribunal for the Law of the Sea (ITLOS) in the 2012 Bay of Bengal Case between Bangladesh and Myanmar60 and the 2014 arbitration between Bangladesh and India.61 It can be argued that the development of the law of maritime delimitation is essentially 17 characterised by the tension between predictability and flexibility in the law. In a broad perspective, it can be observed that the law of maritime delimitation is moving in a direction from the approach based on the concept of creative equity to the three-stage approach based on the concept of corrective equity.62 By incorporating the equidistance method into the realm of law, the three-stage approach is thought to enhance predictability of the law of maritime delimitation. As The International Tribunal for the Law of the Sea (ITLOS) aptly observed in the Bay of Bengal Case, it may be said that: ‘Over time, the absence of a settled method of delimitation prompted increased interest in enhancing the objectivity and predictability of the process’.63 A controversial issue that needs further consideration relates the delimitation of the 18 continental shelf beyond 200 NM. Under Art. 76 of the UNCLOS, the Commission on the Limits of the Continental Shelf (CLCS) is assigned the function of making recommendations to coastal States on matters relating to the establishment of the outer limits of the continental shelf.64 Under Art 76 (10), ‘[t]he provisions of this article are without prejudice to the question of delimitation of the continental shelf between States with opposite or adjacent coasts’.65 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. 66 In the situation where one of the parties or a third State raises an objection to the Commission considering and making recommendations on the submission of a State concerning the continental shelf beyond 200 NM, international courts and tribunals will encounter difficulties to delimit the continental shelf between the parties since, without considerations and recommendations by the CLCS with regard to the validity of submissions concerning the continental shelf beyond 200 NM, it is difficult for international courts and tribunals to determine whether the continental shelf of a party actually extends beyond 200 NM. If the international court or tribunal declines to delimit the continental shelf beyond 200 nm, however, the dispute on this subject remains unsettled.67 Here a dilemma arises. In this regard, it is of particular interest 59

Ibid., 101–103 (paras. 115–122). ITLOS, Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh v. Myanmar), Judgment of 14 March 2012, ITLOS Reports 12 (2012), 67–68, para. 240. 61 In the Matter of the Bay of Bengal Maritime Boundary Arbitration between the People’s Republic of Bangladesh and the Republic of India (2014), paras. 345–346, available at: http://www.pca-cpa.org. 62 See Tanaka on Art. 74 MN 14–22; See also Speech by His Excellency Judge Gilbert Guillaume, President of the International Court of Justice, to the Sixth Committee of the General Assembly of the United Nations, 31 October 2001, available at: http://www.icj-cij.org/court/index.php?pr=81&pt=3&p1=1&p2=3&p3=1&PHPSESSID=5c407. 63 Bay of Bengal Case (note 60), 65, para. 228. It is also to be noted that as shown in the Gulf of Maine Case (note 31) and the Libya/Malta Case (note 27), the ICJ seemed to accept the validity of the corrective-equity approach in the maritime delimitation between States with opposite coasts, even when it supported the resultoriented equity approach. 64 See further Parson on Art. 76 MN 53–55 and Serdy on Annex II. 65 See also Annex II Art. 9 UNCLOS. 66 Para. 5 (a) of Annex I of the Rules of Procedure of the Commission on the Limits of the Continental Shelf, available at: http://www.un.org/depts/los/clcs_new/commission_rules.htm. 67 Bangladesh/India Arbitration (note 61), para. 390. 60

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to note that ITLOS established the continental shelf boundary beyond 200 NM in the 2012 Bay of Bengal Case. In this case, ITLOS considered that: ‘A decision by the Tribunal not to exercise its jurisdiction over the dispute relating to the continental shelf beyond 200 nm would not only fail to resolve a long-standing dispute, but also would not be conductive to the efficient operation of the Convention’.68

According to the Tribunal, ‘the exercise of its jurisdiction in the present case cannot be seen as an encroachment on the functions of the Commission’.69 ITLOS thus concluded that it has an obligation to delimit the continental shelf between the Parties beyond 200 NM. 70 In this regard, it must be noted that ITLOS exercised its jurisdiction to delimit the continental shelf beyond 200 NM because there was no ‘significant uncertainty’ that both Bangladesh and Myanmar have entitlements to a continental shelf beyond 200 NM. In the words of the Tribunal, it ‘would have been hesitant to proceed with the delimitation of the area beyond 200 nm had it concluded that there was significant uncertainty as to the existence of a continental margin in the area in question’.71 Concerning the delimitation method, ITLOS held that Art. 83 UNCLOS applies equally to the delimitation of the continental shelf both within and beyond 200 NM;72 and that the delimitation method to be employed in the present case for the continental shelf beyond 200 NM should not differ from that within 200 NM.73 Accordingly, it extended the line of single maritime boundary beyond 200-NM-limit until it reaches the area where the rights of third States may be affected. 74 The ITLOS’s approach was echoed by the Annex VII Arbitral Tribunal in the 2014 Bangladesh/India Arbitration. In the words of the Tribunal: ‘The Tribunal considers that the appropriate method for delimiting the continental shelf remains the same, irrespective of whether the area to be delimited lies within or beyond 200 nm. Having adopted the equidistance/relevant circumstances method for the delimitation of the continental shelf within 200 nm. the Tribunal will use the same method to delimit the continental shelf beyond 200 nm’.75

In contrast, the ICJ, in the 2012 Nicaragua/Colombia Case, refrained from delimitation of the continental shelf boundary beyond 200 NM since Nicaragua had not established that it has a continental margin that extends far enough to overlap with Colombia’s 200 NM entitlement to the continental shelf, measured from Colombia’s mainland coast. 76 In 2013, Nicaragua newly instituted proceedings against Colombia with regard to the delimitation of the continental shelf beyond 200 NM from the Nicaraguan coast (pending). 77 International jurisprudence on this subject still remains inadequate, and further development of case law is needed.78 68

Bay of Bengal Case (note 60), 102, para. 391. Ibid., para. 392. 70 Ibid., para. 393. 71 Ibid., para. 443. 72 Ibid., para. 454. 73 Ibid., para. 455. 74 Ibid., para. 462. Further, see Yanai (note 2), 332–339. 75 Bangladesh/India Arbitration (note 61), 142 (para. 465). In this case, the Annex VII Arbitral Tribunal confirmed that ‘[N]either Party denies that there is a continental shelf beyond 200 nm in the Bay of Bengal: ibid., 21, para. 78. 76 ICJ, Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment of 19 November 2012, ICJ Reports (2012), 624, 669 (para. 129). 77 Application instituting proceedings, 16 September 2013. Related to this, on 24 June 2013, Nicaragua submitted information on the limits of the continental shelf beyond 200 NM in the south-western part of the Caribbean Sea to the CLCS in accordance with Art. 76 (8). On 23 September 2013, however, Colombia, Costa Rica and Panama jointly lodged strong objection to Nicaragua’s claim over the continental shelf beyond 200 NM. Subsequently, on 5 February 2014, the three States objected to the CLCS considering Nicaragua’s submission. See http://www.un.org/Depts/los/clcs_new/submissions_files/submission_nic_66_2013.htm. 78 See further, Bjarni Ma ´ r Magnu´sson, The Continental Shelf beyond 200 Nautical Miles: Delineation, Delimitation and Dispute Settlement (2015), 117 et seq. 69

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6. ‘the procedures provided for in Part XV’ Under Art. 83 (2), when the parties in dispute could not reach an agreement with regard 19 to the delimitation of the continental shelf ‘within a reasonable period of time’, the dispute is subject to procedures of dispute settlement in Part XV. However, the precise meaning of the phrase ‘within a reasonable period of time’ remains less clear. 79 Further, under Art. 298 (1)(a)(i), maritime delimitation disputes may be exempted from the compulsory procedure provided for in Section 2 of Part XV. Where no agreement is reached in negotiations between the parties, they are subject to the compulsory conciliation under Section 2, Annex V of UNCLOS. Yet 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 such submission.80 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 procedures provided for in Section 2, unless the parties otherwise agree in accordance with Art. 298 (1)(a)(ii). However, under Art. 298 (1)(a)(iii), Art. 298 (1)(a) does not apply to any sea boundary dispute 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.81

7. ‘provisional arrangements of a practical nature’ Art. 83 (3) is essentially identical to Art. 74 (3). Thus the same comments are applicable to 20 Art. 83 (3), insofar as they relate to the continental shelf. 82

8. ‘not to jeopardize or hamper the reaching of the final agreement’ Art. 83 (3) contains no indication of what is meant by the phrase ‘jeopardize or hamper’. 21 The phrase is not intended to preclude some activities by the States concerned in a disputed area of the continental shelf, if those activities would not have the effect of prejudicing the final agreement.83 However, the validity of activities in the disputed area needs careful consideration in a specific context. In the Aegean Sea Continental Shelf Case between Greece and Turkey, a contentious issue arouse with regard to unilateral seismic exploration conducted by Turkey in disputed areas of the continental shelf. In this case, Greece contended that: ‘[T]he continued seismic exploration undertaken by Turkey in the areas of the continental shelf which are in dispute threaten to prejudice the exclusive sovereign rights claimed by Greece in respect of those areas’.84 It also maintained that: ‘Turkey’s seismic exploration threatens in particular to destroy the exclusivity of the rights claimed by Greece to acquire information concerning the availability, extent and location of the natural resources of the areas’.85 Greece thus requested that the ICJ indicate the provisional measure that require Turkey to refrain from all exploration activity or any scientific research in disputed areas of the continental shelf.86 However, the ICJ declined the request by Greece for three reasons. First, the purpose of these explosions is to send sound waves 79

Nordquist/Nandan/Rosenne (note 2), 815. Art. 298 (1)(a)(i). 81 See further Serdy on Art. 298 MN 14–22. 82 See Tanaka on Art 74 MN 28–31. 83 Nordquist/Nandan/Rosenne (note 2), 815. 84 ICJ, Aegean Sea Continental Shelf Case (Greece v. Turkey), Interim Protection, Order of 11 September 1976, ICJ Reports (1976), 3, 9 (para. 26). 85 Ibid. 86 Ibid., 4–5 (para. 2). Request for the indication of Interim Measures of Protection submitted by the Government of Greece, 10 August 1976, 66. 80

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through the seabed so as to obtain information regarding the geophysical structure of the earth beneath it. 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. Second, the continued seismic exploration activities undertaken by Turkey are of the transitory character, and did not involve the establishment of installations on or above the seabed of the continental shelf. Third, Turkey embarked upon no operations involving the actual appropriation or other use of the natural resources of the disputed areas of the continental shelf.87 The ICJ thus concluded that the possibility of prejudice to the Greece’s sovereign rights by the seismic exploration by Turkey did not suffice to indicate interim measures under Art. 41 (1) of the ICJ Statute.88 Although the Court did not determine the legality of unilateral seismic exploration in the disputed area at the provisional measures stage, the Aegean Sea Continental Shelf Order appeared to imply that the seismic exploration of a transitory nature could not be considered as affecting Greece’s potential rights to the continental shelf.89 22 This view was echoed by the Arbitral Tribunal in the Guyana/Suriname Arbitration. 90 In this case, the Arbitral Tribunal took the view 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. 91 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 jeopardise the reaching of a final agreement on delimitation’, whilst unilateral acts which do not cause a physical change to the marine environment would not have the effect of jeopardizing or hampering the reaching of a final agreement on the delimitation of the maritime boundary. 92 The Arbitral Tribunal thus considered that seismic activity should be permissible in a disputed area,93 if there is no objection of the other party.94 23 A related issue in this regard concerns access of information about the resources of the disputed area. In this regard, the Special Chamber of ITLOS, in the 2015 Ghana/Coˆ te d’Ivoire Case, ruled that the exclusive right to access to information about the resources of the continental shelf is plausibly among the rights of the coastal State over its continental shelf. 95 In the view of the Special Chamber, ‘the acquisition and use of information about the resources of the disputed area would create a risk of irreversible prejudice to the rights of Coˆte d’Ivoire should the Special Chamber, in its decision on the merits, find that Coˆte d’Ivoire has rights in all or any part of the disputed area’.96

87

Aegean Sea Continental Shelf (note 84),10 (para. 30). Ibid., 11 (para. 32). However, Judge Stassinopoulos took the view that: ‘[T]he material fact of exploring the continental shelf by means of explosions constitutes an aggravating circumstance if the evolution of international law in this respect is taken into account’. Dissenting Opinion of Judge Stassinopoulos, ibid., 37. 89 Natalie Klein, Provisional Measures and Provisional Arrangements in Maritime Boundary Disputes, IJMCL 21 (2006), 432. At the same time, it must be remembered that as the ICJ stated, ‘neither concessions unilaterally granted nor exploration activity unilaterally undertaken by either of the interested States with respect to the disputed areas can be creative of new rights or deprive the other State of any rights to which in law it may be entitled’. Aegean Sea Continental Shelf (note 84), 10 (para. 29). 90 Tanaka on Art. 74. 91 Guyana/Suriname Arbitration (note 57), 132–133 (paras. 467–469). 92 Ibid., 132 (paras. 466–467). 93 Ibid., 137 (para. 481). 94 In the Guyana/Suriname Arbitration, seismic activities did not give rise to objections from either side, ibid. Where unilateral exploration of natural resources in disputed areas gave rise to objections for either party, it may be argued that the parties are required to make every effort to conclude provisional arrangements of a practical nature pending agreement on delimitation pursuant to Arts. 74 (3) and 83 (3) UNCLOS. 95 ITLOS Special Chamber, Dispute Concerning Delimitation of the Maritime Boundary Between Ghana and Co ˆ te d’Ivoire in the Atlantic Ocean (Ghana/Coˆte d’Ivoire), Request for Provisional Measures, Order of 25 April 2015, para. 94, available at: https://www.itlos.org/en/cases/list-of-cases/case-no-23/case-no-23-provisional-measures/. 96 Ibid., para. 95. 88

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It thus prescribed the provisional measure which requires Ghana to ‘take all necessary steps to prevent information resulting from past, ongoing or future exploration activities conducted by Ghana, or with its authorization, in the disputed area that is not already in the public domain from being used in any way whatsoever to the detriment of Coˆte d’Ivoire’.97

Unilateral exploration and exploitation of natural resources which may have a permanent 24 physical impact on the marine environment of the disputed areas is more controversial. 98 On this issue, the Arbitral Tribunal, in the Guyana/Suriname Arbitration, took the view that: ‘[U]nilateral 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’.99 In accordance with the dictum of the Guyana/Suriname arbitral award, it seems possible to argue that activities which physically affect natural resources are contrary to Art. 83 (3) because these acts may hamper or jeopardize the reaching of a final agreement. In the Ghana/Coˆte d’Ivoire Order of 2015, however, the Special Chamber of ITLOS took a different view. On the one hand, the Special Chamber ruled that the ongoing exploration and exploitation activities conducted by Ghana in the disputed area would result in a modification of the physical characteristics of the continental shelf and that ‘there is a risk of irreparable prejudice where, in particular, activities result in significant and permanent modification of the physical character of the area in dispute and where such modification cannot be fully compensated by financial reparations’.100

On the other hand, the Special Chamber considered 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 resulting, in particular, from the deterioration of equipment’.101

Thus the Special Chamber declined to prescribe the provisional measure requested by Coˆ te d’Ivoire that requires Ghana to suspend all ongoing oil exploration and exploitation operations in the disputed area, while it prescribed the provisional measure which requires 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.102 However, the Special Chamber did not clarify whether or not marine pollution from the degradation of equipment is imminent, whereas as the Special Chamber itself accepted, the risk of irreparable prejudice to the sovereign rights of Coˆ te d’Ivoire arising from ongoing seabed activities of Ghana is imminent. 103 Further, as the Special Chamber itself observed, any compensation awarded would never be able to restore the status quo ante in respect of the seabed and subsoil, 104 while financial loss can be compensated by financial reparations. Hence some doubts could be expressed as to whether marine pollution from the degradation of equipment and financial loss to Ghana could provide adequate reasons to decline the main request of Coˆte d’Ivoire which requires Ghana to cease ongoing oil exploitation in the disputed area in the disputed area. Moreover, it is undeniable that ongoing exploitation operations may entail the risk of achieving fait accompli. It seems debatable whether the provisional measures prescribed by the Special Chamber would be adequate to prevent a fait accompli in the Ghana/Coˆte d’Ivoire dispute.105 97

Ibid., para. 108(1)(a). See also Tanaka on Art. 74 MN 35 et seq. 99 Guyana/Suriname Arbitration (note 57), 137 (para. 480). 100 Ghana/Co ˆ te d’Ivoire Case (note 96), para. 89. 101 Ibid., para. 99. 102 Ibid., para. 108(1)(a). In this regard, it is to be noted that exploration and exploitation operations of Ghana are carried out on the Ghana’s side of the equidistance line. 103 See Tanaka on Art. 74 MN 37. 104 Ghana/Co ˆ te d’Ivoire Case (note 96), para. 90. 105 Yoshifumi Tanaka, Unilateral Exploration and Exploitation of Natural Resources in Disputed Areas: A Note on the Ghana/Coˆte d’Ivoire Order of 25 April 2015 before the Special Chamber of ITLOS, ODIL 46 (2015), 324–326. 98

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9. ‘Where there is an agreement in force between the States concerned’ 25

Art. 83 (4) is lex specialis in relation to Art. 311.106 The meaning of this provision is clear: Where there is an agreement in force between the States, the delimitation of the continental shelf is to be determined by the agreement. However, the existence of an agreement relating to a maritime boundary between States concerned may be a subject of dispute. 107 In the 1985 Guinea/Guinea-Bissau Arbitration, for instance, the question arouse as to whether the Convention of 1886 established the maritime boundary between the two States in West Africa. In this case, the Court of Arbitration ruled that the 1886 Convention had not established a general maritime boundary.108 In the Guinea-Bissau/Senegal case, the Arbitral Tribunal ruled that the exchange of letters on 26 April 1960 between France and Portugal established a maritime boundary for the territorial sea, the contiguous zone, and the continental shelf, even though the boundary did not comprise the EEZ since the concept of the EEZ was unknown at that time.109 In the Nicaragua/Honduras Case, a question was raised whether as Honduras claimed, the line of the 15th parallel constituted the maritime delimitation line on the basis of the uti possidetis juris principle referred to in the Ga´mezBonilla Treaty and the 1906 Award of the King of Spain. In this case, the ICJ concluded that the uti possidetis juris principle cannot be said to have provided a basis for a maritime delimitation along the 15th parallel.110 Although Honduras further argued that there was a ‘de facto boundary based on the tacit agreement of the Parties’ at the 15th parallel, the Court was not persuaded by the Nicaragua’s argument, ruling that there was no tacit agreement in effect between the Parties establishing a legally binding maritime boundary. 111 In the 2014 Peru/Chile Case, a question arouse as to whether, as Chile contended, the respective maritime zone entitlements of Chile and Peru have been fully delimited by agreement and that those maritime zone entitlements are delimited by a boundary following the parallel of latitude passing through the most seaward boundary marker of the land boundary between Chile and Peru, known as Hito No. 1, having a latitude of 18 21’00’’ S under WGS 84 Datum. 112 In this regard, the ICJ ruled that in light of the 1954 Special Maritime Frontier Zone Agreement, especially Art. 1 read with the preambular paragraphs, that the two States had acknowledged in a binding international agreement that a maritime boundary already exists; and that Agreement cemented the tacit agreement between the parties. 113

Article 84 Charts and lists of geographical coordinates 1. Subject to this Part, the outer limit lines of the continental shelf and the lines of delimitation drawn in accordance with article 83 shall be shown on charts of a scale or scales adequate for ascertaining their position. Where appropriate, lists of geographical coordinates of points, specifying the geodetic datum, may be substituted for such outer limit lines or lines of delimitation. 106

Nordquist/Nandan/Rosenne (note 2), 985; see further Matz-Lu¨ ck on Art. 311. For more details, see Tanaka on Art. 74 MN 37–38. 108 Delimitation of the Maritime Boundary between Guinea and Guinea-Bissau, 14 February 1985, RIAA XIX, 149, 181 (para. 84) and 196 (para. 130). 109 Case Concerning the Delimitation of Maritime Boundary between Guinea-Bissau and Senegal, 31 July 1989, RIAA XX, 119, 150 (para. 88). 110 Nicaragua/Honduras Case (note 29), 727–729 (paras. 229–236). For the application of the principle of uti possidetis juris to maritime boundaries, see Yoshifumi Tanaka, Reflections on Maritime Delimitation in the Nicaragua/Honduras Case, Zao¨RV 68 (2008), 907–909; Cottier (note 2), 479–482. 111 Nicaragua/Honduras Case (note 29), 736–737 (paras. 257–258). 112 ICJ, Maritime Dispute (Peru v. Chile), Judgment of 24 January 2014, ICJ Reports (2014), 12 (para. 14). 113 Ibid., 38–39 (paras. 90–91). 107

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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 United Nations and, in the case of those showing the outer limit lines of the continental shelf, with the Secretary-General of the Authority. Bibliography: Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); George K. Walker (ed.), Definitions for the Law of the Sea: Terms Not Defined by the 1982 Convention (2012); Shigeru Oda, A Commentary on the UN Convention on the Law of the Sea (in Japanese), vol. I (1985) Documents: UN DOALOS, The Law of the Sea: Baselines: An Examination of the Relevant Provisions of the United Nations Convention on the Law of the Sea (1989) Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘Subject to this Part’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 2. ‘charts of a scale or scales adequate for ascertaining their position’ . . . . . . . . . . . . . 6 3. ‘lists of geographical co-ordinates of points’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 4. ‘the geodetic datum’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 5. ‘due publicity’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 6. ‘shall deposit a copy of each such chart or list with the Secretary-General of the United Nations’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 7. ‘with the Secretary-General of the Authority’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

I. Purpose and Function Art. 84 is intended to make the information on the outer limits and delimitation lines of 1 the continental shelf available to the international community. Art. 84 provides a dual obligation on the coastal State: (i) to show the outer limits of the continental shelf and the delimitation line of the continental shelf on charts or list their geographical coordinates and (ii) to provide due publicity. Art. 84 is nearly identical to Art. 75. 1

II. Historical Background Unlike Art. 75, Art. 84 has a precedent, i. e. Art. 6 (3) of the 1958 Geneva Convention on 2 the Continental Shelf: ‘3. In delimiting the boundaries of the continental shelf, any lines which are drawn in accordance with the principles set out in paragraphs 1 and 2 of this article should be defined with reference to charts and geographical features as they exist at a particular date, and reference should be made to fixed permanent identifiable points on the land.’

At the UNCLOS III, a similar provision was drafted as Art. 70 (5) of the Informal Single Negotiating Text (ISNT), Part II, of 1975 which stated that:2 ‘In delimiting the boundaries of the continental shelf, any lines which are drawn in accordance with the provisions of this article should be defined with reference to charts and geographical features as they exist at a particular date, and reference should be made to fixed permanent identifiable points on the land.’

1

Thus, see also Tanaka on Art. 75. UNCLOS III, Informal Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/PART II (1975), OR IV, 152, 163. 2

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In the Revised Single Negotiating Text (RSNT), Part II, of 1976, however, a new provision i. e. Art. 72, was drafted as follows:3 ‘1. Subject to this Chapter, the outer limit lines of the continental shelf and the lines of delimitation drawn in accordance with article 71 shall be shown on charts of a scale or scales adequate for determining them. Where appropriate, lists of geographical co-ordinates of points, specifying the geodetic datum, may be substituted for such outer limit lines or lines of delimitation. 2. The coastal State shall give due publicity to such charts or lists of geographical co-ordinates and shall deposit a copy of each such chart or list with the Secretary-General of the United Nations.’

The reference to ‘lists of geographical co-ordinates points’ merits attention, since geographical coordinates would provide greater precision to the depiction of the outer limits of the continental shelf.4 4 Later, Art. 72 of the RSNT was incorporated in the Informal Composite Negotiating Text (ICNT), Revision 1, of 1979 as follows:5 ‘1. Subject to this Part, the outer limit lines of the continental shelf and the lines of delimitation drawn in accordance with article 83 shall be shown on charts of a scale or scales adequate for determining them. Where appropriate, lists of geographical co-ordinates of points, specifying the geodetic datum, may be substituted for such outer limit lines or lines, of delimitation. 2. The coastal State shall give due publicity to such charts or lists of geographical co-ordinates and shall deposit a copy of each such chart or list with the Secretary-General of the United Nations.’

The phrase ‘Subject to this Chapter’ included in Art. 72 of the RSNT was replaced by the phrase ‘Subject to this Part’ in Art. 84. This phrase is important since unlike Art. 1 of the Convention on the Continental Shelf, the Part of the UNCLOS concerning the continental shelf provided detailed rules and procedure for determining the outer limits of the continental shelf. The text of Art. 84 of ICNT, Revision 1, remained unchanged in ICNT, Revision 3. 6 In the Draft Convention on the Law of the Sea (1981), however, the phrase ‘determining them’ was replaced by the phrase ‘ascertaining their position’. Furthermore, a new phrase ‘in the case of those showing the outer limit lines of the continental shelf, with the Secretary-General of the Authority’ was inserted to the text of Art. 84.7 This is a new element which was unknown in Art. 6 (3) of the Convention on the Continental Shelf.8 This element is linked to the spatial scope of the Area, i. e. the sea-bed and ocean floor and subsoil thereof, beyond limits of national jurisdiction.9 Art. 84 of the Draft Convention finally became Art. 84 UNCLOS.

III. Elements 1. ‘Subject to this Part’ 5

‘[T]his Part’ means Part VI governing the continental shelf. Part VI contains detailed rules and procedure for determining the outer limits of the continental shelf. Accordingly, the outer limit lines of the continental shelf referred to in Art. 84 (1) must be determined in accordance with Art. 76 of the Convention.10

3 UNCLOS III, Revised Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/REV.1/PART II (1976), OR V, 151, 165 (Art. 71 related to the delimitation of the continental shelf). 4 Cf. Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 819–820. 5 UNCLOS III, Informal Composite Negotiating Text (Revision 1), UN Doc. A/CONF.62/WP.10/REV.1 (1979), OR VIII, 57 (Art. 84. Art. 83 provided rules of the delimitation of the continental shelf). 6 UNCLOS III, Draft Convention on the Law of the Sea (Informal Text), UN Doc. A/CONF.62/WP.10/REV.3 (1980), OR VIII, 34 (Art. 84). 7 UNCLOS III, Draft Convention on the Law of the Sea, UN Doc. A/CONF.62/L.78 (1981), OR XV, 172, 189. 8 At UNCLOS I, the legal institution governing the Area had not yet emerged. 9 Art. 1 (1)(1). See also Tanaka on Art. 1 MN 6–7. 10 See Parson on 76 MN 26–40.

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Charts and lists of geographical coordinates

84

2. ‘charts of a scale or scales adequate for ascertaining their position’ Art. 84 (1) obliges the coastal State to show the outer limit lines of the continental shelf on 6 charts of a scale or scales adequate for ascertaining their position. The same or a similar obligation is provided in Arts. 16 (1), 47 (8), and 75 (1) in relation to other maritime zones. Art. 83 referred to in Art. 84 (1) provides rules concerning the delimitation of the continental shelf.11 The criteria for determining the outer limits of the continental shelf are set out in Art. 76. Art. 84 (1) offers scant explanation on the scale of a chart. 12 Accordingly, it can be argued 7 that the coastal State retains discretion on this matter. It appears difficult to identify any uniform State practice on this matter.13 The scale of the charts should be adequate for the user to determine them to the same degree of accuracy as the coastal State intends. 14

3. ‘lists of geographical co-ordinates of points’ Under Art. 84 (1), ‘where appropriate’, the coastal State is allowed to provide lists of 8 geographical co-ordinates of points. In this case, the geodetic datum must be specified. Art. 84 (1) is nearly parallel to Art. 75 (1) in this respect. 15

4. ‘the geodetic datum’ According to United Nations Office for Ocean Affairs and the Law of the Sea (UN 9 DOALOS), a datum is the basis of a co-ordinate system and is also known as the horizontal datum or horizontal reference datum. It is associated with a specific reference ellipsoid which best fits the surface (geoid) of the area of interest. It is important to specify the geodetic datum that has been used when a position is defined since geographical co-ordinates differ according to geodetic datums.16 UN DOALOS encourages States Parties to UNCLOS to provide all the necessary information for conversion of the submitted geographic coordinates from the original datum into the World Geodetic System 84 (WGS 84), a geodetic datum system that is used by the UN DOALOS for its internal data storage. 17

5. ‘due publicity’ The obligation of due publicity in Art. 84 (2) is parallel to that in Art. 75 (2).18 The 10 obligation under Art. 84 is also linked to Art. 76 (9) which obliges the coastal State to deposit with the UN Secretary-General charts and relevant information, including geodetic data, permanently describing the outer limits of its continental shelf.19 It is also to be noted that the UNCLOS contains obligations to give due publicity to charts or lists of geographical coordinates which indicate the position of baselines, limits and boundaries in Art. 16 (2), 47 (9), and 76 (9). Furthermore, the obligations to give due publicity are provided in Art. 21 (3), 22 (4), 41 (2) and (6), 42 (3), 53 (7) and (10), and 211 (3). 11

See Tanaka on Art. 83 MN 6. See also Tanaka on Art. 75 MN 7. 13 Charts deposited by States are available at: http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/ depositpublicity.htm. 14 UNCLOS III, Study on the Future Functions of the Secretary-General under the Draft Convention and on the Needs of Countries, Especially Developing Countries, for Information, Advice and Assistance under the New Legal Regime, UN Doc. A/CONF.62/L.76 (1981), OR XV, 179. See also Nordquist/Nandan/Rosenne (note 4), 819. 15 See Tanaka on Art. 75 MN 8–9. 16 UN DOALOS, The Law of the Sea: Baselines: An Examination of the relevant Provisions of the United Nations Convention on the Law of the Sea (1989), 55. 17 UN DOALOS, Deposit and Due Publicity-Background Information, para. 4, available at: http://www.un.org/ Depts/los/LEGISLATIONANDTREATIES/backgroud_deposit.htm. 18 See Tanaka on Art. 75 MN 10. 19 See further Parson on Art. 76 MN 56. 12

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6. ‘shall deposit a copy of each such chart or list with the Secretary-General of the United Nations’ Under Art. 84 (2), the coastal State is under the obligation to deposit a copy of each chart that shows the outer limit lines of the continental shelf and the delimitation lines of the shelf or list of geographical coordinates with the UN Secretary-General. The obligation is nearly identical to that regarding the outer limit lines and lines of delimitation of the EEZ set out in Art. 75 (2). According to UN DOALOS, some 20 States deposited charts and/or lists of geographical co-ordinates relating to Art. 84.20 12 Art. 84 (2) is linked to Art. 76 (9) which requires the coastal State to deposit with the UN Secretary-General charts and relevant information, including geodetic data, permanently describing the outer limits of its continental shelf. Under Art. 76 (9), the Secretary-General is to give due publicity thereto.21 Both provisions are designed to make available to the international community information on the limits and delimitation lines of the continental shelf.22 11

7. ‘with the Secretary-General of the Authority’ The term ‘the Authority’ means the International Seabed Authority.23 The obligation of deposit of a copy of charts showing the outer limit lines of the continental shelf with the Secretary-General of the Authority is a special obligation which is not provided in Art. 75 concerning charts and lists of geographical co-ordinates of the EEZ. This obligation is linked to Art. 134 (3).24 The limits of the Area are the seaward limit of the continental shelf which is determined in accordance with Art. 76.25 It follows that the limits of the Area are determined by each coastal State. As provided in Art. 134 (3), the Authority only receives such charts or lists showing the outer limit lines of the continental shelf pursuant to Art. 84 (2) of the UNCLOS. 14 The Secretary-General of the Authority is the chief administrative officer of the Authority, which governs the Area (� Art. 166 (3)). As the limits of the Area are the outer limits of the continental shelf,26 it is necessary that the Secretary-General of the Authority is informed of the location of the outer limits of the continental shelf. 13

Article 85 Tunnelling This Part does not prejudice the right of the coastal State to exploit the subsoil by means of tunnelling, irrespective of the depth of the water above the subsoil. Bibliography: Hersch Lauterpacht, Sovereignty over Submarine Areas, BYIL 27 (1950), 376–433; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993) Documents: ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4–12; ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45 20 The relevant data is available at: http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/depositpublicity.htm. 21 See further Parson on Art. 76 MN 56. 22 Nordquist/Nandan/Rosenne (note 4), 882–883. 23 Art. 1 (1)-(2). See also Tanaka on Art. 1 MN 8–10. 24 See Scovazzi on Art. 134 MN 8–9. 25 See Tanaka on Art. 1 MN 6–7. 26 Ibid.

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Cases: Cornish Submarine Mines (First) Arbitration of 1856; ICJ, Case Concerning the Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), Judgment of 24 February 1982, ICJ Reports (1982), 18; Reference re: Seabed and Subsoil of the Continental Shelf Offshore Newfoundland [1984] 1 S.C.R. 86 (Canada). Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘This Part does not prejudice’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘the right of the coastal State to exploit the subsoil by means of tunnelling’ . . . . 3. ‘irrespective of the depth of the water above the subsoil’ . . . . . . . . . . . . . . . . . . . . . . . .

1 2 7 7 8 11

I. Purpose and Function Art. 85 is a ‘without prejudice clause’, ensuring that the regime of the continental shelf laid 1 out in Part VI does not affect the rights of the coastal State to exploit the subsoil of the continental shelf by means of tunnelling. The provision was copied, in its essence, from the 1958 Convention on the Continental Shelf (CSC), and the inclusion of mention to ‘the depth of the water above the subsoil’ is anachronistic, as it refers to the definition of the continental shelf contained in the CSC and not to the definition and means of delineation contained in the UNCLOS.1 Though what exactly is meant by tunnelling is unclear from the wording of the provision, reference to its genesis in the International Law Commission (ILC) commentaries to the Draft Articles concerning the Law of the Sea2 and the negotiations of the CSC strongly suggests that it refers to tunnelling from terra firma, meaning tunneling from dry land mass. 3 The precise difference between the exclusive right of the coastal State in relation to drilling on the continental shelf and their rights in relation to tunnelling are not immediately apparent, but it is likely to stem from the fact that tunnelling was envisaged to take place from terra firma.

II. Historical Background Although not contained as an individual article in the ILC Draft Articles concerning the 2 Law of the Sea,4 in the commentary to the draft article on the definition of the continental shelf the ILC stated: ‘Lastly the Commission points out that it does not intend limiting the exploitation of the subsoil of the high seas by means of tunnels, cuttings or wells dug from terra firma. Such exploitation of the subsoil of the high seas by a coastal State is not subject to any legal limitation by reference to the depth of the superjacent waters.’5

The reference to the depth of the superjacent waters was due to the fact that Art. 67 of the Draft Articles defined the continental shelf ‘as referring to 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 (approximately 100 fathoms), or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas.’6 1

See Parson on Art. 76 MN 8–11. ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45. 3 See supra MN 2–5. 4 ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4–12. 5 ILC Law of the Sea Articles with Commentaries (note 2), 42 (Art. 67, para. 11). 6 ILC Law of the Sea Articles (note 4), 11 (Art. 67). 2

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In this context, the depth of the waters and freedom of coastal States to exploit the subsoil are clearly related. 3 At UNCLOS I, negotiated on the basis of the ILC Draft Articles, it was felt by some negotiating parties that the draft text prepared was ‘insufficiently comprehensive’ 7 as it did not contain an expression of the law in relation to tunnelling, although this had been referred to by the ILC in their commentaries.8 Express mention was made to the ILC commentary that references terra firma by several States. 9 The United Kingdom delegation then proposed an amendment that included that the definition of the continental shelf ‘should not prejudice the right of a coastal State to exploit the subsoil by means of tunnelling from terra firma irrespective of the depth of water above the subsoil.’ 10 The issue of tunnelling was then included in a series of proposals in the Fourth Committee 11, all seemingly based on the understanding that the tunnelling would occur from terra firma, 12 before being adopted by the Committee13 and then included in the CSC as Art. 7. The article reads: ‘The provisions of these articles shall not prejudice the right of the coastal State to exploit the subsoil by means of tunnelling irrespective of the depth of water above the subsoil.’

The article continued to reference the depth of the water of the subsoil, as in Art. 1 CSC the continental shelf is also defined by reference to depth. 14 The article contained in the CSC is, like Art. 85 UNCLOS, a without prejudice clause that seeks to set out with clarity that the rules contain in the CSC do not affect the right of the coastal State to explore the subsoil. The reference to depth ensures that whether or not this subsoil is encompassed by the regime of the continental shelf or not, the right of the coastal State is not affected in regards to tunnelling from terra firma. 4 At UNCLOS III, the issue of tunnelling did not receive a great deal of attention. No specific proposals were advanced at either the Seabed Committee or at the Second Session of the Conference,15 and Art. 7 of the CSC was then included verbatim in the Main Trends

7 Statement of Mr Rosenne (Israel): UNCLOS I, Summary Records of the 6th to 10th Meetings of the Fourth Committee, UN Doc. A/CONF.13/C.4/SR.6-10 (1958), OR VI, 7, 17 (Ninth Meeting, para. 27). 8 Ibid. 9 Ibid.; Statement of Mr. Gabrielli (Italy): Ibid., para. 23; Statement of Mr. Moulton (Netherlands): UNCLOS I, Summary Records of the 11th to 15th Meetings of the Fourth Committee, UN Doc. A/CONF.13/C.4/SR.11-15 (1958), 22, 35 (Fifteenth Meeting, para. 4), who also made reference to tunneling and mining for coal already carried out from terra firma off the coasts of Scotland, Nova Scotia, France and Chile; Statement of Miss Whiteman (United States): UNCLOS I, Summary Records of the 16th to 20th Meetings of the Fourth Committee, UN Doc. A/CONF.13/C.4/SR.16-20 (1958), 38, 40 (Sixteenth Meeting, para. 22). 10 Statement of Miss Gutteridge (United Kingdom): Summary Records of the 11th to 15th Meetings (note 8), 36 (Fifteenth Meeting, para. 12). 11 UNCLOS I, Netherlands: Proposal, UN Doc. A/CONF.13/C.4/L.9/REV.1 (1958), OR VI, 131; UNCLOS I, United Kingdom of Great Britain and Northern Ireland: Revised Proposal, UN Doc. A/CONF.13/C.4/L.24/REV.1 (1958), OR VI, 132,133; UNCLOS I, Sweden: Proposal, UN Doc. A/CONF.13/C.4/L.33 (1958), OR VI, 136; UNCLOS I, United Kingdom of Great Britain and Northern Ireland: Proposal (1958), UN Doc. A/CONF.13/C.4/ L.44 (1958), OR VI, 138. 12 Some of the proposals do not contain the references to terra firma, see ibid., but from the Summary Records it is clear that the proposal were put forward on the basis of that understanding. See: Summary Records of the 6th–10th Meetings (note 6); Summary Records of the 11th to 15th Meetings (note 8); Summary Records of the 16th–20th Meetings (note 8). 13 UNCLOS I, Text of the Articles and Final Clauses Adopted by the Fourth Committee, UN Doc. A/ CONF.13/L.12 Annex (1958), OR VI, 143,144. 14 Which reads: ‘the term continental shelf is used as referring to (a) 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 the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas […]’. 15 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 992.

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Working Paper16 as Provision 7917 in 1979. The draft article then underwent only minor drafting changes, before being adopted with the Convention as a whole.18 The retention of the reference to depth has been described as emphasising the right of 5 coastal States to tunnel irrespective of the depth of water above the soil. 19 However, as the depth of the waters superjacent to the continental shelf no longer factor in their definition, 20 and therefore would not appear be affected by the articles of Part VI, it is better to assume that the reference to depth is an anachronistic left-over from the earlier regime. The right of the coastal State to tunnel in the subsoil predates the 20th century codifica- 6 tions of the law of the sea, as is evidenced by the without prejudice nature of the provisions in the CSC and UNCLOS. The practice of mining for coal had already been established, 21 and was occurring as early as 1856.22

III. Elements 1. ‘This Part does not prejudice’ Art. 85 is a without prejudice clause, indicating that the articles on the continental shelf 7 contained in Part VI of the Convention (covering the definition and delineation of the continental shelf (Art. 76), the rights and duties of the coastal State (Art. 77), legal status of the superjacent water and airspace (Art. 78), submarine cables and pipelines (Art. 79), artificial islands, installations and structures (Art. 80), drilling (Art. 81), payments and contributions with respect to exploitation of the continental shelf beyond 200 NM (Art. 82), delimitation for States with opposite or adjacent coasts (Art. 83) and charts and lists of geographic coordinates Art. 84)) do not affect the right of the coastal State to carry out tunnelling activities in the subsoil.

2. ‘the right of the coastal State to exploit the subsoil by means of tunnelling’ The precise nature of the right of the coastal State to tunnel in the subsoil is not provided 8 for in the Convention. From the genesis of Art. 85 at UNCLOS I and in the CSC, it appears that the type of tunnelling imagined is from terra firma23, however it is perhaps conceivable that other methods of tunnelling from a structure on the continental shelf could be included (though this may call into question the exact relationship between Art. 81 and Art. 85 and the sort of activities they cover)24. Where this right to tunnel stems from was addressed by Judge ODA in his dissenting 9 opinion in the Case Concerning the Continental Shelf (Tunisia v. Libyan Arab Jamahiriya) at the International Court of Justice (ICJ).25 He referenced a tunnel for mining coal in Cornwall 16 UNCLOS III, Statement of Activities of the Conference during its First and Second Sessions, UN Doc, A/ CONF.62/L.8/REV.1 (1974), OR III, 93 (Annex II Appendix I, Working Paper of the Second Committee: Main Trends). 17 Ibid., 119. 18 Nordquist/Nandan/Rosenne (note 15), 992. 19 Ibid. 20 Though reference is made to depth in Art. 76 (5), this is in relation to fixing points to delineate the continental shelf beyond 200 NM and is a factor in delineating the edge of the continental shelf, and not part of the definition of the shelf itself. See Parson on Art 76 MN 47–49. 21 See supra, note 9. 22 See ICJ, Case Concerning the Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), Judgment of 24 February 1982, Dissenting Opinion of Judge Oda, ICJ Reports (1982), discussing the Cornish Submarine Mines (First) Arbitration of 1856, where ‘the right to own all mines and minerals lying under the high seas was vested in the Crown’. 23 See infra, MN 2–5. 24 See infra, MN 1. 25 Case Concerning the Continental Shelf (note 22).

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Part VI. Continental shelf

that reached ‘far out to sea’ and discussions between the UK and France in relation to constructing to construct a tunnel under the English channel, and the lack of objection thereto, as ‘two examples [that] indicate that there was nothing in international law prohibiting the utilization of the subsoil for the purposes of the exploitation of resources or communication.’26 ODA further remarked that the opinions of several scholars that submarine areas beyond national jurisdiction were terra nullius, and thus open to occupation by States by means of tunnelling, were ‘superfluous and misleading’ in terms of describing the use and occupation of these areas.27 The rights of the coastal State in this area have been described as an ‘extraterritorial manifestation of, and an incident of, the external sovereignty of a coastal State.’28 10 The reference to exploitation in Art. 85 ties in with the sovereign right exercised by the coastal State over the continental shelf ‘for the purposes of exploring it and exploiting its natural resources contained in Art. 77 (1),29 but Art. 85 sets the right of the coastal State to tunnel in the subsoil apart from this general right, as it exists independently of the regime of Part VI.

3. ‘irrespective of the depth of the water above the subsoil’ 11

As outlined above, the reason for the inclusion of this quantifier in Art. 85 is due to the genesis of this article at UNCLOS I.30 It appears to serve no function in regards to the relationship between Part VI and the right of the coastal State to tunnel in the subsoil (the relationship that Art. 85 seeks to clarify) and should therefore be seen as anachronistic and redundant.

26

Ibid., 175 (para. 31). Ibid., 176 (para. 32); see also Hersch Lauterpacht, Sovereignty over Submarine Areas, BYIL 27 (1950), 376, 414–423, and further 423–431 for the problems with the ‘contiguity’ approach. For further analysis of the origin of the rights of coastal States over the continental shelf, see Maggio on Art. 77 MN 4–9. 28 Reference re: Seabed and Subsoil of the Continental Shelf Offshore Newfoundland [1984] 1 S.C.R. 86 (Canada). 29 See Maggio on Art. 77 MN 18–20. 30 See infra, MN 2–5. 27

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PART VII HIGH SEAS Section 1 General provisions Article 86 Application of the provisions of this Part The provisions of this Part 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. This article does not entail any abridgement of the freedoms enjoyed by all States in the exclusive economic zone in accordance with article 58. Bibliography: Philip Allott, Power Sharing in the Law of the Sea, AJIL 77 (1983), 1–30; Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); Laurent Lucchini/Michel Voelckel, Droit de la mer, vol. I (1996); Douglas Guilfoyle, The High Seas, in: Donald R. Rothwell/Alex G. Oude Elferink/Karen N. Scott/Tim Stephens (eds.), The Oxford Handbook of the Law of the Sea (2015), 203–225; Myron H. Nordquist/Satya N. Nandan/ Shabtai Rosenne (eds.), United Nation Convention on the Law of the Sea 1982: A Commentary, vol. III (1995); Daniel P. O’Connell, The International Law of the Sea, vol. II (1984); Alexander Proelss, The Law on the Exclusive Economic Zone in Perspective: Legal Status and Resolution of User Conflicts Revisited, Ocean Yearbook 26 (2012), 87–112; Tullio Treves, High Seas, MPEPIL, available at: http://www.mpepil.com Documents: ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45 Cases: ITLOS, The M/V ‘Virginia G’ Case (Panama v. Guinea-Bissau), Judgment of 14 April 2014, ITLOS Reports (2014), 1 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘apply to all parts of the sea that are not included in the […]’ . . . . . . . . . . . . . . . . . . 2. ‘the exclusive economic zone’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 4 4 5

I. Purpose and Function Part VII notably does not commence with a definition of the high seas.1 Art. 86 instead 1 stipulates the spatial application of the ‘provisions of this Part’. This approach was taken, as further explained below, to resolve the debate at UNCLOS III as to the relationship between the legal regime of high seas and those of the EEZ and archipelagic waters.

1 Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 203; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nation Convention on the Law of the Sea 1982: A Commentary, vol. III (1995), 67–68.

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Part VII. High seas

II. Historical Background The high seas had, prior to UNCLOS, generally been negatively defined. 2 The International Law Commission started from the widely accepted categorical proposition that: ‘[t]he waters of the sea belong either to the high seas or to the territorial sea or to internal waters.’ 3 Thus the 1958 Geneva Convention on the High Seas (High Seas Convention) commenced by defining the high seas as: ‘all parts of the sea not included in the territorial sea or in the internal waters of a State’.4 3 The emergence of the concepts of the exclusive economic zone (EEZ) and archipelagic waters (particularly the former) required a different approach. During UNCLOS III, the 1976 Revised Single Negotiating Text modified the High Seas Convention formula and defined the high seas as all parts of the sea not included in the EEZ, territorial sea or internal waters, or archipelagic waters. This approach did not reflect the fact that ‘the existing high seas regime would require adaptation to regimes being developed for other maritime zones and activities’ in the Convention.5 While the need for adaptation to the EEZ regime became apparent quite early in negotiations, it was ‘not at first sight clear whether the EEZ is essentially the high seas with a special EEZ regime superimposed upon it (the ‘high seas minus’ view) or whether the EEZ is a new […] [sovereign] zone of the coastal state in which the high seas freedoms are the equivalent of the right of innocent passage in the territorial sea (the ‘EEZ minus’ view).’6 For a period views remained quite divided between the ‘high seas minus’ and ‘EEZ minus’ approaches. The generally accepted view that emerged in the 1976 Revised Single Negotiating Text was that the EEZ ‘is neither the high seas nor [an extension of] the territorial sea. It is a zone sui generis’ and as such it was one in which the high seas regime applied to the extent it was not displaced by rights specifically allocated to the coastal State. 7 This turning point in terms of approach did not lead to an immediate drafting breakthrough. Attempts to secure agreement on a definition in 1976 continued to flounder on the question of how the high seas were to be defined.8 The approach which did succeed in giving effect to the sui generis nature of the EEZ was to abandon the classic negative definition (which might have the effect of unduly restricting the rights of navigating States in the EEZ), instead simply specifying instead the spatial scope of application of the high seas regime. 9 The text that became (with minor modifications) the present Art. 86 was proposed by the ~eda Group in 1977.10 Castan 2

2 This section draws on research first published in: Douglas Guilfoyle, The High Seas, in: Donald R. Rothwell/ Alex G. Oude Elferink/Karen N. Scott/Tim Stephens (eds.), The Oxford Handbook of the Law of the Sea (2015), 203–225. 3 ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12, 23 (Art. 26); see Nordquist/Nandan/Rosenne (note 1), 61; Daniel P. O’Connell, The International Law of the Sea, vol. II (1984), 931. 4 Art. 1 High Seas Convention (as to its intended codification of customary law, see its preamble). 5 Nordquist/Nandan/Rosenne (note 1), 62. 6 Philip Allott, Power Sharing in the Law of the Sea, AJIL 77 (1983), 1, 15. 7 UNCLOS III, Revised Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/REV.1/PART II (1976), OR V, 151, 153 (para. 17). 8 Nordquist/Nandan/Rosenne (note 1), 66. 9 See early suggestions along these lines by Australia and Germany, Second Committee UNCLOS III, Australia: Article 73 (ISNT II) (1976), reproduced in: Renate Platzo¨der (ed.), Third United Nations Conference on the Law of the Sea: Documents, vol. IV (1984), 328; UNCLOS III, Federal Republic of Germany: Article 73 (ISNT II) (1976), reproduced in: ibid. 10 UNCLOS III, Castaneda Group: Informal Proposal (1977, mimeo.), reproduced in: ibid., 427 (Article 75, RSNT II); Nordquist/Nandan/Rosenne (note 1), 67–69.

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Art. 86

III. Elements 1. ‘apply to all parts of the sea that are not included in the […]’ The first sentence of Art. 86 contains no definition of the high seas. The application of the 4 high seas regime embodied in the Convention applies to those waters ‘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.’ As noted above, this prima facie excludes waters which previously would have been considered part of the high seas prior to the recognition of EEZ areas (� Part V) and archipelagic waters (� Arts. 47 and 49). This definition is then expanded by the effect of the second sentence.

2. ‘the exclusive economic zone’ While at first sight, Art. 86 appears to provide that the area of the high seas is diminished 5 by the establishment of EEZs, it is not as simple as saying that at the 200 NM point ‘the EEZ ends … and the high seas begin.’11 Art. 86, second sentence, provides for the continued application of high seas freedoms in the EEZ under Art. 58. Indeed, Art. 58 (2) goes somewhat further than this might imply, providing ‘Articles 88 to 115 and other pertinent rules of international law apply to the exclusive economic zone in so far as they are not incompatible with’ the rights and jurisdiction granted to coastal States in the EEZ. 12 Certainly the creation of the EEZ means some rights ‘formerly included within the concept of the freedom of the high seas, in particular those relating to natural resources, are [now] abridged or abrogated’ in favour of the coastal State.13 Otherwise, however, UNCLOS provisions on the high seas have continued application to the EEZ. This emphasis on spatial application also recognises the oceans’ ‘unified character’. 14 Art. 86 does not expressly refer to the contiguous zone, apparently on the theory that: 6 ‘There is no territorial jurisdiction in the contiguous zone […] In the scheme of the Convention, the waters of the contiguous zone will be part of the EEZ […] or of the high seas (where a State has not established an […] [EEZ]).’15

Art. 86, second sentence, makes it clear through the cross reference to Art. 58 that the 7 legal regime of the high seas has limited application in the EEZ. TREVES notes that under UNCLOS: ‘the EEZ has a specific legal regime that includes the application to it of a specified group of the freedoms of the high seas, but admits no presumption of a residual rule of freedom.’16 The freedoms of the high seas incorporated into the EEZ regime by the cross-reference in Art. 58 (1) are thus only some of those high seas freedoms found in Art. 87 (navigation, overflight and the laying of cables).17 This is a narrow selection from what is otherwise a non-exhaustive list of high-seas freedoms. T REVES is thus correct to note there is no general ‘residual rule of freedom.’ UNCLOS provides, on its face, no clear presumption in favour of either coastal State rights or navigating States’ freedoms in the EEZ in the event of any conflict but sets out a principle of ‘due regard’ (see � Art. 56 (2); Art. 58 (3); Art. 59). Some, however, have suggested that the correct interpretation of the EEZ regime favours the coastal State in the event of any conflict, 18 a proposition which 11

Allott (note 6), 15; contra Laurent Lucchini/Michel Voelckel, Droit de la mer, vol. I (1996), 267. See further Proelss on Art. 58 MN 24–27. 13 Nordquist/Nandan/Rosenne (note 1), 70. 14 Ibid., 32 and 68. 15 Ibid., 69 (footnote 16). 16 Tullio Treves, High Seas, MPEPIL, para. 6, available at: http://www.mpepil.com. 17 See further Proelss on Art. 58 MN 10–15. 18 Alexander Proelss, The Law on the Exclusive Economic Zone in Perspective: Legal Status and Resolution of User Conflicts Revisited, Ocean Yearbook 26 (2012), 87–112. 12

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appears supported by the wording of Art 58 (2) (specifying the application of certain high seas freedoms within the EEZ ‘in so far as they are not incompatible with’ the EEZ regime). The International Tribunal for the Law of the Sea (ITLOS) took a cautious approach in The M/V ‘Virginia G’ Case, which concerned whether refuelling of vessels in the EEZ (bunkering) was a preserved freedom of the high seas under Art 58 (2) or fell within the regulatory authority of the coastal State under Art 58 (1).19 Briefly put, it held that as regulating fishing fell within Art. 58 (1) so did bunkering of fishing vessels.20 Jurisdiction over bunkering in respect of other activities, it seems, may fall for resolution on a case-by-case basis.

Article 87 Freedom of the high seas 1. 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; (b) freedom of overflight; (c) freedom to lay submarine cables and pipelines, subject to Part VI; (d) freedom to construct artificial islands and other installations permitted under international law, subject to Part VI; (e) freedom of fishing, subject to the conditions laid down in section 2; (f) freedom of scientific research, subject to Parts VI and XIII. 2. These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area. Bibliography: Gilbert Gidel, Le droit international public de la mer: le temps de paix, vol. I (1932); Hugo Grotius, The Freedom of the Seas: Or, the Right which Belongs to the Dutch to Take Part in the East Indian Trade (1633) (Ralph Magoffin (translator), 1916); Natalie Klein, Maritime Security and the Law of the Sea (2011); Laurent Lucchini/Michel Voelckel, Droit de la mer, vol. I (1996); Myres S. McDougal/William T. Burke, The Public Order of the Oceans (1962); Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995); Daniel P. O’Connell, The International Law of the Sea, vol. II (1984); Bernard H. Oxman, The Regime of Warships under the United Nations Convention on the Law of the Sea, VJIL 24 (1983–1984), 809–863 Documents: ILC, Report of the International Law Commission Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45; ILC, Summary of Replies from Governments and Conclusions of the Special Rapporteur, J. P. A. François, UN Doc A/CN.4/97 Add. 1 (1956); ILC, Summary Records of the Meetings of the 8th Session, ILC Yearbook (1956), vol. I Cases: PCA, Arctic Sunrise Arbitration (Netherlands v. Russia), Merits, Award of 14 August 2015, available at: http://www.pcacases.com/web/view/21; PCA, South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China), Award of 12 July 2016, available at: https://www.pcacases.com/web/view/7 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘Freedom of the high seas is exercised under the conditions laid down by this Convention […]’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘due regard’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

1 4 7 7 9

See further Proelss on Art. 58 MN 16–19. ITLOS, The M/V ‘Virginia G’ Case (Panama v. Guinea-Bissau), Judgment of 14 April 2014, ITLOS Reports (2014), 1, paras. 222–223. 20

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3. ‘freedom of navigation’ and ‘freedom of overflight’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. ‘freedom of fishing’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. ‘freedom to lay submarine cables and pipelines’, ‘construct artificial islands and other installations’ and ‘freedom of scientific research’ . . . . . . . . . . . . . . . . . . . . . . . . . . 6. Freedom to conduct military activities? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. ‘coastal and land-locked States’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Art. 87

10 11 12 13 14

I. Purpose and Function Art. 87 has four major elements, it: ‘sets out the principal freedoms which all States enjoy 1 in the high seas’;1 emphasises that these freedoms are not unrestricted but are conditioned by other legal rules; further emphasises that these freedoms must be exercised with ‘due regard’ both to other States’ interests and the regime governing the deep sea-bed beyond national jurisdiction (� Part XI); and lays down the principle that ‘[t]he high seas are open to all States, whether coastal or land-locked’. Coupled with Art. 89, Art. 87 expresses the legal nature of the high seas. 2 The idea, as 2 embodied in Art. 87, that the high seas are inalienable and open to all States is commonly referred to as mare liberum. It is usually traced to GROTIUS’ dictum that: ‘The sea is common to all, because it is so limitless it cannot become a possession of any one, and because it is adapted for the use of all, whether we consider [it] from the point of view of navigation or fisheries.’3 Mare liberum may be contrasted with a characterisation of the high seas as subject to alienation by single States (mare clausum, discussed in the commentary to Art. 89) 4. As a principle, mare liberum reflects States’ common economic interest in unhindered use of the high seas both as a route for trade and as a fishing ground; as well as maritime powers’ interest in a regime ‘permit[ting] unhindered passage of the[ir] naval fleets … to areas of political and military influence.’5 As noted, high seas freedoms are not unqualified. Each State must accept restraints on its 3 own freedom of action arising from other States having the same freedom of action. As the International Law Commission (ILC) put it: ‘Any freedom that is to be exercised in the interests of all entitled to enjoy it, must be regulated. Hence the law of the high seas contains certain rules … which are designed not to limit or restrict the freedom of the high seas, but to safeguard its exercise in the interests of the entire international community.’6

The point is discussed further below in paragraph 9. Irrespective of how one characterises this position as a matter of theory,7 the high seas is clearly not an area without law (vacuum juris).8 The numerous references in Art. 87 to other parts of the Convention illustrate that these freedoms are now coupled with obligations; while its list of the principal State freedoms enjoyed on the high seas is non-exhaustive (‘inter alia’) it remains clear that such freedoms are limited both by such obligations and by the freedoms of others.

1 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995), 73. 2 See generally Guilfoyle on Art. 89. 3 Hugo Grotius, The Freedom of the Seas: Or, the Right which Belongs to the Dutch to Take Part in the East Indian Trade (Ralph Magoffin (translator), 1916), 28. 4 See Guilfoyle on Art. 89 MN 5. 5 Natalie Klein, Maritime Security and the Law of the Sea (2011), 14. 6 ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12, 24 (Art. 27); cf. Nordquist/Nandan/Rosenne (note 1), 80. 7 See Guilfoyle on Art. 89 MN 4–6. 8 Daniel P. O’Connell, The International Law of the Sea, vol. II (1984), 792 and 796; cf. Gilbert Gidel, Le droit international public de la mer: le temps de paix, vol. I (1932), 225.

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II. Historical Background 4

Art. 2 of the 1958 Geneva Convention on the High Seas (High Seas Convention) provided: ‘The high seas being open to all nations, no State may validly purport to subject any part of them to its sovereignty. Freedom of the high seas is exercised under the conditions laid down by these articles and by the other rules of international law. It comprises, inter alia, both for coastal and non-coastal States: (1) Freedom of navigation; (2) Freedom of fishing; (3) Freedom to lay submarine cables and pipelines; (4) Freedom to fly over the high seas. These freedoms, and others which are recognized by the general principles of international law, shall be exercised by all States with reasonable regard to the interests of other States …’

This formulation was largely based on Art. 27 of the ILC’s Articles concerning the Law of the Sea (which were intended principally to codify pre-existing law),9 with the addition of the second sentence (referring to conditions of exercise) and final sentence (concerning ‘reasonable regard’ for other States’ interests) above. Variations on both had been debated by the ILC. Reference to conditions of exercise had been thought to be redundant 10 and the ‘reasonable regard’ provision controversial, due to its implications for high seas weapons testing.11 5 The language of the High Seas Convention was refined somewhat in the course of the third United Nations Conference on the Law of the Sea over 1974–6. 12 The most obvious change was placing the first sentence of the formulation above in a separate article (� Art. 89). Additions to the non-exhaustive list of freedoms included: ‘freedom to construct artificial islands and other installations’ and ‘freedom of scientific research’; the latter had been noted by the ILC as an example of a freedom acknowledged by international law not expressly included in their original draft.13 However, perhaps the most important change in drafting was the addition of cross-references to Parts VI regarding the freedom to lay submarine cables and Part VII (2) regarding the freedom to fish. Both had previously been unrestricted freedoms, and the cross-reference makes clear that both freedoms are subject to a more detailed regime under UNCLOS. 6 The final sentence of the High Seas Convention formulation was changed from ‘reasonable regard’ to ‘due consideration’ in 1975 for reasons which are not entirely clear. 14 The vagueness of the word ‘reasonable’ had attracted criticism and was strongly associated with MCDOUGAL and the NEW HAVEN SCHOOL;15 in particular it was thought not to provide a stable criterion or check against subjective determinations of the permissibility of certain activities such as weapon testing.16 Whether the wording finally adopted (‘due regard’) is an improvement is open to question.

9

ILC Law of the Sea Articles with Commentaries (note 6), 24 (Art. 27). ILC, Summary of Replies from Governments and Conclusions of the Special Rapporteur, J. P. A. François, UN Doc A/CN.4/97 Add. 1 (1956), 13 (paras. 17–18). 11 Ibid., 10 (paras. 51–52) and see debate in ILC, Summary Records of the Meetings of the 8th Session, ILC Yearbook (1956), vol. I, 31–34; on high seas weapons testing, see Guilfoyle on Art. 88 MN 7–8. 12 See Nordquist/Nandan/Rosenne (note 1), 76–80. 13 ILC Law of the Sea Articles with Commentaries (note 6), 24 (Art. 27); see the debate in ILC Summary Records (note 11), 29–32. 14 Nordquist/Nandan/Rosenne (note 1), 78. 15 ILC Summary of Replies from Governments (note 10), 10 (paras. 51–52). 16 O’Connell (note 8), 795 and 798; cf. Laurent Lucchini/Michel Voelckel, Droit de la mer, vol. I (1996), 281. 10

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III. Elements 1. ‘Freedom of the high seas is exercised under the conditions laid down by this Convention […]’ All the listed freedoms are to be ‘exercised under the conditions laid down by this 7 Convention and by other rules of international law’ (paragraph 1, sentence 1), and the enumerated freedoms in paragraph 1 often contain specific cross-references to other parts of the Convention. The nature of these conditions thus depends on the individual high seas freedom concerned. The high seas are susceptible to a range of uses in which all States may have common 8 interests, such as freedom of navigation and rights of fishing (‘inclusive’ interests). 17 States may also have a range of individual national interests in the use of the high seas in matters such as security, warfare or freedom from interference with their shipping by other States (� Art. 92) (‘exclusive’ interests).18 Paragraph 2 makes it clear that States are not entitled to pursue their exclusive interests without having ‘due regard’ both for the interests of other States and inclusive interests in matters such as the Area (� Part XI).

2. ‘due regard’ As noted above,19 however, ‘due regard’ in UNCLOS replaces the phrase ‘reasonable regard’ 9 in the High Seas Convention. It is far from clear either provides any precise duty or particularly clear standard. The ILC appeared to consider the rule at customary international law to be that: ‘States are bound to refrain from acts which might adversely affect the use of the high seas by nationals of other States.’20 While authoritative guidance is limited, nonetheless: ‘[i]t would appear that physical interference with the operation of foreign ships, as well as damage to the object of their activities, would come within the scope of this rule. However, it is not mere interference or damage that is prohibited, but interference without due regard … a balancing of interests in the use of the seas is required.’21

This, however, does not mean that a mere balancing of interests will allow State interference with foreign vessels. Other provisions of the Convention remain applicable (paragraph 1, first sentence) and often provide more determinate standards (see e. g. � Art. 92(1); Art. 110). In the absence of such detail being provided by other parts of the convention the content of the ‘due regard’ standard is, at best, unclear.

3. ‘freedom of navigation’ and ‘freedom of overflight’ The right of freedom of navigation (‘unimpeded passage’) ‘is a theme that runs through 10 the Convention, taking different forms in different maritime zones’22. As noted, all high seas freedoms are subject to other rules in the Convention and of international law. On the high seas the right of unimpeded passage/free navigation is subject in particular to duties to protect life (� Art. 94; Art. 98) and the environment (� Art. 192), and to control pollution (� Part XII). It is subject to a number of further limitations in respect of authorised policing 17

Myres McDougal/William Burke, The Public Order of the Oceans (1962), 37. Ibid. See supra, MN 6. 20 ILC Law of the Sea Articles with Commentaries (note 6), 24 (Art. 27). 21 Bernard H. Oxman, The Regime of Warships under the United Nations Convention on the Law of the Sea, VJIL 24 (1983–1984), 809, 827. 22 Nordquist/Nandan/Rosenne (note 1), 81; see Arts. 17–20, 38–45, 52–53. See also PCA, Arctic Sunrise Arbitration (Netherlands v. Russia), Merits, Award of 14 August 2015, para. 227, available at: http://www.pcacases.com/web/view/21. 18 19

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activities (� Art. 110), regarding piracy (� Art. 100), the slave trade (� Art. 99), narcotics trafficking (� Art. 108) and unauthorised broadcasting (� Art. 109) or hot pursuit of vessels which have breached local law in waters under coastal State jurisdiction onto the high seas (� Art. 111). The freedom of overflight follows from the same principle.

4. ‘freedom of fishing’ 11

The most fundamental high seas freedom after navigation is the freedom to fish. This is further regulated in Part VII, Section 2. In particular, Art. 118 contemplates the establishment of ‘regional fisheries organizations’23; and numerous such organisations have been established under multilateral and regional treaties.24

5. ‘freedom to lay submarine cables and pipelines’, ‘construct artificial islands and other installations’ and ‘freedom of scientific research’ 12

As noted above,25 under the High Seas Convention the freedoms to lay submarine cables and pipelines had been unrestricted. Under UNCLOS, Part VI of the Convention, as referred to in paragraph 1(c), (d) and (f), regulates the freedoms to: lay submarine cables and pipelines (� Art. 79)26; construct artificial islands and other installations (� Art. 79(4)) 27; and conduct scientific research (see � Part XIII).

6. Freedom to conduct military activities? 13

An interesting omission from Art. 87 is any reference to a freedom to conduct military activities on the high seas. The point has been especially controversial, in particular as regards nuclear weapons testing. As the list of high seas freedoms under Art. 87 is nonexhaustive (‘inter alia’), arguably military activities are permissible to the extent that they are not incompatible with ‘conditions laid down by this Convention and by other rules of international law’. The point is further addressed in relation to Art. 88 (reservation of the high seas for peaceful purposes).

7. ‘coastal and land-locked States’ 14

The first and third sentences of paragraph 1 refer to ‘coastal and land-locked States.’ This ‘emphasises the universal character of the freedom of the high seas and … that landlocked States enjoy the same rights in the high seas as coastal States’. 28

Article 88 Reservation of the high seas for peaceful purposes The high seas shall be reserved for peaceful purposes. Bibliography: Boleslaw A. Boczek, Peaceful Purposes Provisions of the United Nations Convention on the Law of the Sea, ODIL 20 (1989), 359–389; Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); Myres S. McDougal, The Hydrogen Bomb Tests and the International Law of the Sea, AJIL 49 (1955), 356–361; 23 See Rayfuse on Art. 118 MN 25 et seq. See also Harrison/Morgera on Art. 63 MN 14–15; Harrison/Morgera on Art. 64 MN 10–12. 24 See in particular the UN Fish Stocks Agreement. 25 Supra, MN 4–5. 26 See also Arts. 112–113. 27 See also Arts. 56 (1)(b), 60, 192, 206, 208, 214, 246 (5)(c). On environmental duties and the construction of artificial islands generally see also PCA, South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China), Award of 12 July 2016, paras. 976–993, available at: https://www.pcacases.com/web/view/7. 28 Nordquist/Nandan/Rosenne (note 1), 80. See Guilfoyle on Art. 90 MN 1–4; Uprety/Maggio on Art. 124 MN 9.

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Wolff Heintschel von Heinegg, The Law of Armed Conflict at Sea in: Dieter Fleck (ed.) Handbook of International Humanitarian Law (2nd edn. 2008), 475–570; Emanuel Margolis, The Hydrogen Bomb Experiments and International Law, Yale LJ 64 (1958), 629–647; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995); Bernard H. Oxman, The Regime of Warships under the United Nations Convention on the Law of the Sea, VJIL 24 (1983–1984), 809–863; Rob McLaughlin, United Nations Mandated Naval Interdiction Operations in the Territorial Sea?, ICLQ 51 (2002), 249–278; Daniel P. O’Connell, The International Law of the Sea, vol. II (1984); Alexander Proelss, Peaceful Purposes, MPEPIL, available at: http://www.mpepil.com; Donald R. Rothwell/Tim Stephens, The International Law of the Sea (2nd edn. 2016); Ru¨diger Wolfrum, Restricting the Use of the Sea to Peaceful Purposes: Demilitarization in Being, GYIL 24 (1981), 200–241; Alan V. Lowe, Some Legal Problems Arising from the Use of the Seas for Military Purposes, Marine Policy 10 (1986), 171–184; Raul Pedrozo, Preserving Navigational Rights and Freedoms: The Right to Conduct Military Activities in China’s Exclusive Economic Zone, Chinese JIL (2010), 9–29 Documents: Louise Doswald-Beck (ed.), San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1995); GA, Report of the Secretary-General: Study on the Naval Arms Race, UN Doc. A/40/535 (1985); GA Res. 2992 (XXVII) of 15 December 1972; GA Res. 2832 (XXVI) of 16 December 1971; GA Res. 2749 (XXV) of 12 December 1970; ILC, Summary of Replies from Governments and Conclusions of the Special Rapporteur, J. P. A. François, UN Doc A/CN.4/97 Add. 1–3 (1956); SC Res. 1874 of 12 June 2009; SC Res. 1718 of 14 October 2006; SC Res. 917 of 6 May 1994; SC Res. 875 of 16 October 1993; SC Res. 820 of 17 April 1993; SC Res. 787 of 16 November 1992; SC Res. 665 of 25 August 1990; SC Res. 217 of 20 November 1965; US Navy, The Commander’s Handbook of the Law of Naval Operations (2007) Cases: ICJ, Nuclear Tests (Australia v. France), Merits, Judgment of 20 December 1974, ICJ Reports (1974), 253; ICJ, Nuclear Tests (New Zealand v. France), Merits, Judgment of 20 December 1974, ICJ Reports (1974), 457; PCA, Arctic Sunrise Arbitration (Netherlands v. Russia), Merits, Award of 14 August 2015, available at: http:// www.pcacases.com/web/view/21 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘peaceful purposes’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. UNCLOS and the Use of Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Weapons Testing and Military Exercises on the High Seas . . . . . . . . . . . . . . . . . . . . . . 4. Art. 88 and the EEZ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 4 4 5 7 9

I. Purpose and Function Art. 88 ostensibly reserves the high seas for use for ‘peaceful purposes’. This may ‘at first 1 sight, [appear] to impose far-reaching limitations upon military activities at sea’. 1 Whether, in fact, it does so can only be determined with reference to its drafting history, subsequent State practice and its relationship with other provisions of the Convention. In particular the question arises whether weapons testing and military manoeuvres may be conducted on the high seas as an exercise of freedom of navigation under Art. 87 (1)(a) while having ‘due regard’ to other States’ right to exercise the freedom of the high seas under Art. 87 (2).

II. Historical Background The intended meaning of the provision in the Convention is unclear, though it was not the 2 first treaty using such wording. Treaties and instruments prior to the Convention using ‘reserved for peaceful purposes’ wording include the Antarctic Treaty 1959, 2 the Outer Space

1 Boleslaw A. Boczek, Peaceful Purposes Provisions of the United Nations Convention on the Law of the Sea, ODIL 20 (1989), 359, 371. 2 Art. 1 Antarctic Treaty.

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Treaty 1967,3 the General Assembly’s 1970 Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, Beyond the Limits of National Jurisdiction. 4 The General Assembly’s 1971 and 1972 Declarations of the Indian Ocean as a Zone of Peace were also cast in similar language.5 Notably, ‘[i]n the Antarctic Treaty and the Outer Space Treaty, the “peaceful purposes” language is followed immediately by specific prohibitions on military fortifications, military manoeuvres, and testing of weapons’6 and, in the case of the 1970 Declaration of Principles, subsequent treaty action specifically banned the emplacement of nuclear weapons on the seabed beyond national jurisdiction. 7 The comparison strongly suggests that the text should not be construed as outlawing all military activities on the high seas, as if the intention had been to ban weapons testing and military manoeuvres words could have been included to that effect.8 3 This conclusion is further supported by the drafting history, in which a wide difference of views was found between some (principally developing) States who insisted that this provision ‘must mean complete demilitarization and the exclusion […] of all military activities’ from the high seas and those who insisted it would prohibit only aggression contrary to the UN Charter.9

III. Elements 1. ‘peaceful purposes’ 4

The ‘peaceful use’ of the oceans is a theme found elsewhere in the Convention. The preamble to the Convention refers to ‘the desirability of establishing […] a legal order for the seas and oceans which will facilitate […] the peaceful uses of the seas and oceans’. 10 Other provisions of the Convention also reserve the use of the Area for ‘exclusively peaceful purposes’ (� Art. 141; Art. 143 (1); Art. 147 (2)(d); Art. 155 (2)), and require that marine scientific research is carried out ‘exclusively for peaceful purposes’ (� Art. 240; Art. 242 (1); Art. 246 (3)). Nowhere, however, is a direct definition of ‘peaceful purposes’ offered. One should note that Art. 301, entitled ‘Peaceful uses of the seas’ (emphasis added), provides: ‘[i]n 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.’

This is a narrower provision reflecting the language of Art. 2 (4) of the UN Charter and thus banning only such uses of the ocean as would constitute acts of aggression or breaches of the principle of non-interference.11 3 Preamble and Art. 4 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies. 4 Preamble and Arts. 5, 8 and 10 of GA Res. 2749 (XXV) of 12 December 1970. 5 GA Res. 2832 (XXVI) of 16 December 1971; GA Res. 2992 (XXVII) of 15 December 1972. 6 Bernard H. Oxman, The Regime of Warships Under the United Nations Convention on the Law of the Sea, VJIL 24 (1983–1984), 809, 830. 7 Treaty on the Prohibition of the Emplacement of Nuclear Weapons and other Weapons of Mass Destruction on the Sea-Bed and the Ocean Floor and in the Subsoil Thereof, 11 February 1971, UNTS 955, 115. 8 Oxman (note 6), 831; similarly, Ru ¨ diger Wolfrum, Restricting the Use of the Sea to Peaceful Purposes: Demilitarization in Being, GYIL 24 (1981), 200, 213. 9 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995), 89; Wolfrum (note 8), 201 and 203. See further the debates in: UNCLOS III, 66th Plenary Meeting, UN Doc. A/CONF.62/SR.66 (1976), OR V, 54; UNCLOS III, 67th Plenary Meeting, UN Doc. A/CONF.62/SR.67 (1976), OR V, 56 and UNCLOS III, 68th Plenary Meeting, UN Doc. A/ CONF.62/SR.68 (1976), OR V, 63. See infra, MN 7. 10 See Lagoni on the Preamble MN 28. 11 See further O’Brien on Art. 301.

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2. UNCLOS and the Use of Force In 1985 the UN Secretary General concluded that: ‘military activities which are consistent 5 with the principles of international law embodied in the Charter of the United Nations’ including Art. 2 (4) on the use of force and Art. 51 on the right to self defence ‘are not prohibited by the Convention on the Law of the Sea.’12 This would now appear to be the generally accepted position in scholarship;13 and military manuals continue to include chapters on naval warfare.14 Similarly, the United Nations Security Council has used its Chapter VII powers on numerous occasions to authorise specific military operations at sea. 15 Examples include: UN Security Council Resolution 217 (1965) enforcing the oil embargo against Southern Rhodesia; UNSC Resolution 665 (1990) enforcing economic sanctions against Iraq; UNSC Resolutions 787 (1992) and 820 (1993) enforcing economic sanctions against the Former Republic of Yugoslavia; and UNSC Resolutions 875 (1993) and 917 (1994) enforcing economic sanctions against Haiti.16 Finally, one should note that Art. 298 (1)(b) permits the exclusion of disputes concerning 6 military activities from the application of compulsory dispute settlement procedures under Part XV.17 However, ‘[w]ere military activities on the high seas generally to be considered illegal, an exclusion of such disputes from the dispute settlement procedures would seem to be unjustifiable.’18

3. Weapons Testing and Military Exercises on the High Seas Art. 88 is a general obligation free of specific detail. This leaves open the question of its 7 impact on military operations. A principal controversy has been high seas weapons testing. ‘It is generally accepted that some naval manoeuvres and conventional weapons testing may be conducted on the high seas.’19 In such cases the Art. 87 (2) requirement to ‘have due regard to the interest of other States’ may suggest ‘it would be appropriate to declare a temporary exclusion zone to ensure “safety of navigation”’;20 the point is, however, controversial.21 It seems strained, in particular, to suggest any right to actively enforce an exclusion zone could be deduced from a ‘due regard’ provision. Prior to the Convention, France ‘declared a vast area of the Pacific closed to foreign shipping’ in 1972 in the course of atmospheric nuclear testing, and ‘used force to prevent the entry’ of a protest vessel into that zone. 22 Australia and New Zealand contending before the International Court of Justice that such: ‘interference with ships and aircraft on [and over] the high seas […] and the pollution of the high seas by radio-active fall12 Nordquist/Nandan/Rosenne (note 9), 91 (footnote 11), citing: GA, Report of the Secretary General: Study on the Naval Arms Race, UN Doc. A/40/535 (1985), para. 188. 13 Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 430, 431; Wolff Heintschel von Heinegg, The Law of Armed Conflict at Sea in: Dieter Fleck (ed.) Handbook of International Humanitarian Law (2nd edn. 2008), 487; Daniel P. O’Connell, The International Law of the Sea, vol. II (1984), Chapter 29. 14 See e. g.: US Navy, The Commander’s Handbook of the Law of Naval Operations (2007) and Louise Doswald-Beck (ed.), San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1995), 176. 15 Rob McLaughlin, United Nations Mandated Naval Interdiction Operations in the Territorial Sea?, ICLQ 51 (2002), 249–278. 16 See ibid., 255; SC Res. 217 of 20 November 1965, para. 9; SC Res. 665 of 25 August 1990, para. 1; SC Res. 787 of 16 November 1992, para. 12; SC Res. 820 of 17 April 1993, para. 29; SC Res. 875 of 16 October 1993, para. 1; and SC Res. 917 of 6 May 1994, paras. 9–10. Cf. SC Res. 1718 of 14 October 2006 and SC Res. 1874 of 12 June 2009 (restricting maritime trade to or from North Korea without authorising interdiction at sea). 17 See further Serdy on Art. 298. 18 Alexander Proelss, Peaceful Purposes, MPEPIL, para. 15, available at: http://www.mpepil.com. 19 Churchill/Lowe (note 13), 206. 20 Donald R. Rothwell/Tim Stephens, The International Law of the Sea (2nd edn. 2016), 300; cf. Myres McDougal, The Hydrogen Bomb Tests and the International Law of the Sea, AJIL 49 (1955), 356. 21 Emanuel Margolis, The Hydrogen Bomb Experiments and International Law, YaleLJ 64 (1958), 629. ILC, Summary of Replies from Governments and Conclusions of the Special Rapporteur, J. P. A. François, UN Doc A/ CN.4/97 Add. 1–3 (1956), 31–34. 22 Churchill/Lowe (note 13), 206.

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out, constitute infringements of the freedom of the high seas’.23 The case, however, was resolved on the basis that a unilateral undertaking by France met Australia and New Zealand’s concern that no further atmospheric tests should be carried out. 24 Such practices would now be prohibited under the Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water (Nuclear Test Ban Treaty) and could scarcely be considered compatible with the obligation to protect and preserve the marine environment found in Art. 192 and corresponding customary international law.25 8 Short of nuclear weapons testing, it is generally accepted that military exercises on the high seas do not per se conflict with Art. 88.26 (The question of declaring exclusion zones during such exercises remains, however, controversial.) This is supported by the drafting history. As WOLFRUM notes, during UNCLOS III Albania, Bulgaria and the USSR introduced a proposal ‘that no […] combat training areas limiting freedom of navigation may be designated on the high seas near foreign coasts or on international sea routes’; in rejecting this proposal the Conference ‘thus acknowledge[ed] that naval manoeuvres and targeting practice, though excluding […] uses of the same maritime area by others, are included in the freedom of navigation’ now found in Art. 87.27

4. Art. 88 and the EEZ 9

The entitlement of foreign States to conduct military manoeuvres in a coastal State’s exclusive economic zone (EEZ) is a separate but related issue. The plain text of the Convention may suggest that what is permissible under Art. 88 on the high seas is permissible in the EEZ, to the extent it does not conflict with rights specifically vested in the coastal State (� Art. 58 (2)). Nonetheless, States such as ‘Bangladesh, Brazil, Cape Verde, India, Malaysia, Pakistan and Uruguay’ have all asserted in declarations made upon signature or ratification of UNCLOS that coastal State permission is required for such operations. 28 This view is disputed by ‘France, Italy, the Netherlands and the United Kingdom’ as well as Germany and the United States.29 The question arises as to the legal weight to be given to this State practice. The simple divergence of views prevents the conclusion that these declarations evidence ‘the agreement of the parties regarding its interpretation’. 30 On one view, such statements are simply attempts at impermissible reservations and therefore are of no legal effect.31 A fairer view is simply that UNCLOS does not make it clear ‘how the question is to be resolved: on one view, exercises and so on are included within the permitted freedoms; on another they are unattributed rights falling for decision under’ Art. 59. 32 In the Arctic Sunrise Arbitration it was suggested (without elaboration) that Art. 88 functioned to limit the right of protest at sea, the latter being held to be a lawful use of the oceans. 33 23 E. g. ICJ, Nuclear Tests (Australia v. France), Pleadings, Oral Arguments, Documents, vol. I (1978), 14 available at: http://www.icj-cij.org/docket/files/58/13187.pdf. 24 ICJ, Nuclear Tests (Australia v. France), Merits, Judgment of 20 December 1974, ICJ Reports (1974), 253 (paras. 42–52); ICJ, Nuclear Tests (New Zealand v. France), Merits, Judgment of 20 December 1974, ICJ Reports (1974), 457 (paras. 45–55). 25 Proelss (note 18), para. 16. 26 Boczek (note 1), 367 and 372. 27 Wolfrum (note 8), 207, 208. 28 Rothwell/Stephens (note 20), 301; Boczek (note 1), 372. See the list of declarations available at: http:// www.un.org/depts/los/convention_agreements/convetion_declarations.htm. 29 Rothwell/Stephens (note 20), 280; Churchill/Lowe (note 13), 427. 30 Art. 31 (3)(b) Vienna Convention on the Law Treaties; cf. Rothwell/Stephens (note 17), 280. 31 Arts. 309 and 310; see e. g. Raul Pedrozo, Preserving Navigational Rights and Freedoms: The Right to Conduct Military Activities in China’s Exclusive Economic Zone, Chinese JIL (2010), 9, 10. 32 Churchill/Lowe (note 13), 427. See further: Wolfrum (note 8), 208; Pedrozo (note 31), 10; Alan V. Lowe, Some Legal Problems Arising from the Use of the Seas for Military Purposes, Marine Policy 10 (1986), 171, 179. 33 PCA, Arctic Sunrise Arbitration (Netherlands v. Russia), Merits, Award of 14 August 2015, para 288, available at: http://www.pcacases.com/web/view/21.

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Article 89 Invalidity of claims of sovereignty over the high seas No State may validly purport to subject any part of the high seas to its sovereignty. Bibliography: Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); Hugo Grotius, The Freedom of the Seas: Or, the Right which Belongs to the Dutch to Take Part in the East Indian Trade (1633) (Ralph Magoffin (translator), 1916); Gilbert Gidel, Le droit international public de la mer: le temps de paix, vol. I (1932); Alan V. Lowe, International Law (2007); Laurent Lucchini/Michel Voelckel, Droit de la mer, vol. I (1990); Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995); Daniel P. O’Connell, The International Law of the Sea, vol. I (1982); Daniel P. O’Connell, The International Law of the Sea, vol. II (1984); Efthymios Papastavridis, The Right of Visit on the High Seas in a Theoretical Perspective: Mare Liberum versus Mare Clausum Revisited, LJIL 24 (2011), 45–69; Donald R. Rothwell/Tim Stephens, The International Law of the Sea (2nd edn. 2016) Documents: ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4–12; ILC, Summary Records of the Meetings of the 8th Session, ILC Yearbook (1956), vol. I Cases: PCA, South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China), Award of 12 July 2016, available at: https://www.pcacases.com/web/view/7 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘sovereignty’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘validly purport’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘high seas’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 4 7 7 9 10

I. Purpose and Function Art. 89 sets out the simple proposition, universally accepted, that no State may claim 1 sovereignty over any portion of the high seas. The close relationship between Art. 87 (on the freedom of the high seas) and Art. 89 has been noted above.1 The freedom of the high seas follows from the proposition that the high seas cannot be subjected to the juridical order of a particular State.2 The inability to assert sovereignty means that in principle States ‘cannot […] control the activities of other States on the high seas.’3 Art. 89 does more than simply underpin Art. 87: ‘It emphasises that, beyond the outer limit of the territorial sea, the principle of “no sovereignty” is an inherent part of the law of the sea as a whole.’ 4 One may also note that in the exclusive economic zone (EEZ), States enjoy only ‘sovereign 2 rights’ under Art. 56 (1)(a). Claims of sovereignty per se are excluded by Art. 58 (2), which makes Art. 89 applicable to the EEZ.5 Some might argue, however, that the seaward creep of costal State jurisdiction over the twentieth century, manifest in the EEZ in particular, has achieved in practice what Art. 89 prohibits in theory. 6 However, the legal consequences that flow from this absence of sovereignty over the high 3 seas under the Convention are not entirely clear. GROTIUS noted that ‘the sea is called 1

See Guilfoyle on Art. 87 MN 2–3. Gilbert Gidel, Le droit international public de la mer: le temps de paix, vol. I (1932), 238. 3 Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 205. 4 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995), 96. 5 See further Proelss on Art. 58 MN 21–22. 6 See e. g. Churchill/Lowe (note 3), 220. 2

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indifferently the property of no one (res nullius), or a common possession (res communis), or public property (res publica)’.7 These terms, however, lack clear definitions and more express differences in emphasis or ‘attitudes of mind’.8 That is, one may view the freedom from sovereign claims positively (as a feature of world public order resulting in a common space inherently regulated by law) or negatively (creating a minimally-regulated space where States may only act if expressly ‘authorised by international law’).9 Clearly, however, the high seas are not a legal vacuum (vacuum juris) entirely unregulated by law.10

II. Historical Background As O’CONNELL observed: ‘The history of the law of the sea has been dominated by a central and persistent theme: the competition between the exercise of governmental authority over [defined areas of] the sea and the idea of the freedom of the seas’ for use by all States. 11 Thus it is common to describe the emergence of the doctrine of the freedom of the high seas as a reaction to prior State claims of sovereignty over vast ocean areas. Most famously, the Papal Bull issued by POPE ALEXANDER VI delimiting the Spanish and Portuguese spheres of influence was interpreted by those States as allowing them to forbid ‘trade within their respective areas.’12 Equally, sovereign claims were made over ‘extensive areas of the oceans’ in the fifteenth century by Sweden, Denmark, Venice and Britain. 13 Some States claimed the right to levy tolls for passage through ‘their’ seas (i. e. including areas of the oceans beyond territorial waters) and license fishing in them. Such claims came under pressure during the age of maritime exploration commencing in the sixteenth century. 14 5 The best known advocate of a right of free navigation on the high seas was GROTIUS in his work Mare Liberum (‘the free sea’, published in 1608).15 GROTIUS’ thesis was that ‘the seas are avenues of commerce which of their nature are not susceptible of appropriation’ 16 in the manner of sovereign territory.17 Thus ‘that which cannot be occupied … cannot be the property of anyone, because all property has arisen from occupation’ 18 and, in particular, as the sea ‘can neither easily be built upon, nor enclosed’ it ‘remains free and open to all’ for fishing and navigation.19 It is customary to contrast this thesis with that of SELDEN‘s Mare Clausum (‘the closed sea’, written in 1617/18 and published in 1635), which sought ‘to prove that there was longstanding state practice of dominion over the oceans.’ 20 This stylized account ignores a wider range of writers and debates,21 and overlooks a number of common positions.22 Proponents of both mare liberum and mare clausum held that the oceans should 4

7 Hugo Grotius, The Freedom of the Seas: Or, the Right which Belongs to the Dutch to Take Part in the East Indian Trade (1633) (Ralph Magoffin (translator), 1916), 20. 8 Daniel P. O’Connell, The International Law of the Sea, vol. II (1984), 792; cf. Laurent Lucchini/Michel Voelckel, Droit de la mer, vol. I (1990), 275–276. 9 Ibid. 10 Gidel (note 2), 225 and 229; cf. O’Connell (note 7), 796. 11 Daniel P. O’Connell, The International Law of the Sea, vol. I (1982), 1. 12 Ibid., 2. 13 Churchill/Lowe (note 3), 204. 14 Ibid.; Gidel (note 2), 129–133. 15 Grotius (note 6); the idea, however, first arose centuries earlier: Gidel (note 3), 137. 16 O’Connell (note 10), 9. 17 See Guilfoyle on Art. 87 MN 2. 18 Grotius (note 6), 27. 19 Ibid., 26. 20 Donald R. Rothwell/Tim Stephens, The International Law of the Sea (2nd edn. 2016), 3; cf. O’Connell (note 10), 2–11. 21 O’Connell (note 10), 2–18. 22 Efthymios Papastavridis, The Right of Visit on the High Seas in a Theoretical Perspective: Mare Liberum versus Mare Clausum Revisited, LJIL 24 (2011), 45.

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be open to all for purposes of navigation,23 and there was some consensus that fisheries were potentially exhaustible and could require regulation.24 The principle that the high seas cannot be subjected to sovereign claims is now thought so 6 obvious that it was scarcely mentioned in the debates of the International Law Commission (ILC) on their Articles concerning the Law of the Sea.25 In the 1958 Geneva Convention on the High Seas it was treated together with the freedom of the high seas, the first sentence of Art. 2 reading: ‘The high seas being open to all nations, no State may validly purport to subject any part of them to its sovereignty’. However, during the negotiation of UNCLOS, it was decided to place the principle in the present separate article. 26 This was first proposed by the Casteneda Group in 1977,27 but the reasons for this change remain obscure.

III. Elements 1. ‘sovereignty’ The key concept in Art. 89 is obviously ‘sovereignty’. It has been suggested with admirable 7 brevity that Art. 89 ‘uses the term ‘sovereignty’ in its normal sense in international law.’ 28 Sovereignty remains, however, an ‘elusive’ and ‘contested’ concept.29 It may most usefully be thought of as the conventional term describing ‘the relationship between a State and its “own” territory’ irrespective of actual occupation.30 That is, while a State’s sovereignty extends to its territorial sea (� Art. 2; Art. 19; Art. 34; Art. 245) or archipelagic waters (� Art. 49), ocean space may not otherwise be claimed in the same manner as land territory. The term ‘sovereign rights’ used elsewhere in the Convention (� Art. 56; Art. 77; Art. 193). 8 does not assist in interpreting Art. 89. ‘Sovereign rights’ is more limited in meaning and usually relates to rights to control the use and exploitation of natural resources. 31

2. ‘validly purport’ The words ‘validly purport’ imply that any purported declaration of sovereignty over an area 9 of the high seas is without validity (other than the declaration of lesser sovereign rights within an EEZ under Art. 75). Such a declaration would be without legal effect and void ab initio.

3. ‘high seas’ Strictly, the Convention contains no definition of ‘high seas’; instead Art. 86 specifies the 10 ‘spatial application’ of this provision ‘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’.32 23

Ibid., 55. Compare ibid., and Grotius (note 6), 43. 25 ILC, Summary Records of the Meetings of the 8th Session, ILC Yearbook (1956), vol. I, 261; ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4–12. 26 Nordquist/Nandan/Rosenne (note 4), 95. 27 UNCLOS III, Castaneda Group: Informal Proposal (1977, mimeo.), reproduced in: Renate Platzo ¨ der (ed.), Third United Nations Conference on the Law of the Sea: Documents, vol. IV (1983), 427 (Article 77 BIS (RSNT II)). 28 Nordquist/Nandan/Rosenne (note 4), 96. 29 Alan V. Lowe, International Law (2007), 138. 30 Ibid., 139. See in Art. 125 on transit through land territory by landlocked States, and further Uprety/Maggio on Art. 125 MN 31–34. 31 See Maggio on Art. 77 MN 19. See further the discussion in PCA, South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China), Award of 12 July 2016, paras. 217–226, available at: https:// www.pcacases.com/web/view/7, distinguishing plenary claims of sovereignty (including historic title) from lesser rights (including historic rights). 32 See Guilfoyle on Art. 86 MN 4. 24

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Article 90 Right of navigation Every State, whether coastal or land-locked, has the right to sail ships flying its flag on the high seas. Bibliography: Katharina Bork/Johannes Karstensen/Martin Visbeck/Andreas Zimmerman, The Legal Regulation of Floats and Gliders – In Quest of a New Regime?, ODIL 39 (2008), 298–328; Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); Laurent Lucchini/Michel Voelckel, Droit de la mer, vol. I (1990); Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995); Daniel P. O’Connell, The International Law of the Sea, vol. II (1984); Tullio Treves, Navigation, in: Rene´-Jean Dupuy/Daniel Vignes (eds.), A Handbook on the New Law of the Sea, vol. II (1991), 835–976 Documents: ILC, Report of the International Law Commission on the Work of its Forty-Third Session, UN Doc. A/46/10 (1991), GAOR 46th Sess. Suppl. 10; ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4–12; ILC, Sixieme rapport de J. P. A. Francois, rapporteur special, UN Doc. A/CN.4/79 (1954) Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘ships’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘high seas’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 5 5 8

I. Purpose and Function 1

Alongside other articles in the Convention, Art. 90 ‘emphasises […] that land-locked States enjoy the same rights in the high seas as coastal States’ including navigation (� Art. 87; Part X).1 While it may be said that Art. 90 simply ‘restates a long-standing rule that every State has the right to sail ships flying its flag on the high seas’, this is an oversimplification.2 Indeed, the very inclusion of the present article suggests the point was not free from controversy. As discussed below, it was not self-evident prior to the Treaty of Versailles that such a rule existed. The purpose of the present article was, therefore, at least in part to reinforce the freedom of navigation provided for in Art. 87 with a specific right. It is now, however, generally accepted as customary international law that ‘every State has the right to sail ships flying its flag on the high seas.’3 The right exists not only on the high seas but also has application in the exclusive economic zone (EEZ) by virtue of Art. 58 (2).

II. Historical Background 2

The history of States’ right to exercise freedom of navigation upon the high seas is discussed in relation to Art. 87.4 Prior to the First World War it was doubted whether international law recognised such a right as extending to land-locked States, certain maritime

1 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995), 80. 2 Ibid., 101. 3 Ibid., 101; Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 435. 4 Guilfoyle on Art. 87 MN 2. See further Uprety/Maggio on Art. 125 MN 6–8.

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powers arguing that land-locked States without ports could not ‘verify the nationality of merchant vessels nor exercise effective control over them.’ 5 Any doubt as to the right of land-locked States to flag ships was resolved long prior to 3 UNCLOS. Art. 273 Treaty of Versailles 1919 provided that parties agreed to recognise the flag of (some) States ‘having no seacoast which are registered at some one specified place situated in its territory; such place shall serve as the port of registry of such vessels’. 6 The same language was given general application in a League of Nations declaration, signed by 44 States in 1921–1935.7 Art. 4 of the 1959 Geneva Convention on the High Seas (High Seas Convention) simply provided: ‘Every State, whether coastal or not, has the right to sail ships under its flag on the high seas.’ In the drafting of UNCLOS the only change was to substitute the words ‘costal or land- 4 locked’ for ‘coastal or not’.8 The reasons for this change do not appear to have been recorded, but it was presumably done for consistency with the term land-locked States as defined elsewhere in the Convention (� Art. 124).9

III. Elements 1. ‘ships’ The terms ‘ship’ and ‘vessel’ are used interchangeably throughout the Convention and are 5 not intended to have separate meanings.10 There is no universal definition of ‘ship’ (or ‘vessel’) in public international law11 and neither the High Seas Convention nor UNCLOS include any such definition. International Law Commission (ILC) Special Rapporteur François defined a ship as ‘a device capable of traversing the sea but not the airspace, with the equipment and crew appropriate to the purpose [for] which she is used’.12 This definition was not, however, included in the final ILC Articles concerning the Law of the Sea.13 The ILC has since helpfully observed: ‘The expression “ship” in this context should be interpreted as covering all types of seagoing vessels, whatever their nomenclature and even if they are engaged only partially in seagoing traffic.’14 Given the Convention’s general field of operation, this approach may best accord with its object and purpose. Offering a more precise definition may not be possible. Various international instruments (and national legislation) offer different definitions of 6 ship or vessel for different purposes.15 For example the Convention on the International Regulation for Preventing Collisions at Sea (COLREGs) defines as a ‘vessel’: ‘every descrip5 Churchill/Lowe (note 3), 434 (referring to France, Great Britain and Prussia); cf. Laurent Lucchini/Michel Voelckel, Droit de la mer, vol. I (1990), 270. 6 Text available at: http://avalon.law.yale.edu/. 7 Declaration Recognising the Right to a Flag of States Having No Sea-Coast, 20 April 1921, LNTS 7, 73. 8 Nordquist/Nandan/Rosenne (note 1), 100; cf. the consolidated text of 16 April 1975 and the revised consolidated text of 5 May 1975: Second Committee UNCLOS III, Consolidated Text on the High Seas, UN Doc. C.2/Blue Paper No. 9 (1975), reproduced in: Renate Platzo¨ der (ed.), Third United Nations Conference on the Law of the Sea: Documents, vol. IV (1983), 130; Second Committee UNCLOS III, Revised Consolidated Text on the High Seas, UN Doc. C.2/Blue Paper No. 9/Rev.1 (1975), 139, reproduced in: ibid., 139. 9 On Part X and the right of access to and from the sea and transit trade of land-locked States generally, see Uprety/Maggio on Arts. 124–132. 10 UNCLOS III, Report of the Chairman of the Drafting Committee, UN Doc. A/CONF.62/L.40 (1980), OR XII, 97. 11 Daniel P. O’Connell, The International Law of the Sea, vol. II (1984), 747–748. 12 ILC, Sixieme rapport de J. P. A. Francois, rapporteur special, UN Doc. A/CN.4/79 (1954), 9 (‘Un navire est un engine apte a` se mouvoir dans les espace maritimes a` l’exclusion de l’espace ae´rien, avec l’armament et l’equipage qui lui sont propres en vue des services que comporte l’industrie a` laquelle il est employe´’). 13 ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4–12. 14 ILC, Report of the International Law Commission on the Work of its Forty-third Session, UN Doc. A/46/10 (1991), GAOR 46th Sess. Suppl. 10, 118; cf. Tullio Treves, Navigation, in: Rene´-Jean Dupuy/Daniel Vignes (eds.), A Handbook on the New Law of the Sea, vol. II (1991), 835, 942. 15 O’Connell (note 9), 748–750.

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tion of water craft, including non-displacement craft and seaplanes, used or being capable of being used as a means of transportation on water.’16 Similarly, the UN Convention on Conditions for Registration of Ships defined a ‘ship’ as being ‘any self-propelled sea-going vessel used in international seaborne trade for the transport of goods, passengers, or both with the exception of vessels less than 500 gross registered tons’. 17 Such definitions of ‘ship’ or ‘vessel’ tend to emphasise the need for such craft to be able to navigate under their own power and to carry passengers or crew.18 Controversial cases may thus include towed floating structures not capable of movement on their own, or mobile offshore drilling units (which may either be fixed to the sea bed or can move under their own power).19 7 A particular difficulty may arise as to the status of various mobile platforms used for marine scientific research: self-powered Autonomous Underwater Vehicles (AUV) and similar ‘gliders’ capable of navigation might prima facie be considered ‘ships’ in the sense of being seagoing craft capable of navigation, while moored buoys, drifting buoys and subsurface floats (which are unmanned and drift unpowered) are likely controversial candidates for inclusion.20 However, given the focus of most definitions of ‘ship’ on both the ability to navigate and carry crew or passengers, there is a good argument that such platforms are better considered ‘equipment’ under Section 4 of Part XIII of the Convention. 21

2. ‘high seas’ 8

As noted elsewhere in this Commentary, the Convention, strictly, contains no definition of ‘high seas’; instead Art. 86 specifies the ‘spatial application’ of this provision ‘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’. 22

Article 91 Nationality of Ships 1. Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship. 2. Every State shall issue to ships to which it has granted the right to fly its flag documents to that effect. Bibliography: Robin R. Churchill/Alan V. Lowe, The International Tribunal for the Law of the Sea: Survey for 2001, IJMCL 17 (2002), 463–484; Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); Vincent P. Coglianti-Bantz, Disentangling the Genuine Link: Enquiries in Sea, Air and Space Law, Nordic Journal of International Law 79 (2010), 383–432; Gilbert Gidel, Le droit international public de la mer: le temps de paix, vol. I (1932); Douglas Guilfoyle, The High Seas, in: Donald R. Rothwell/Alex G. Oude Elferink/Karen N. Scott/Tim Stephens (eds.), The Oxford Handbook of the Law of the Sea (2015), 203–225; Doris Ko¨ nig, Flag of Ships, MPEPIL, available at: http://www.mpepil.com; Laurent Lucchini/Michel Voelckel, Droit de la mer, vol. II (1996); Myres S. McDougal/William T. Burke, The Public Order of the Oceans (1962); Herman Meijers, The Nationality of Ships (1967); Daniel P. O’Connell, The International Law of the Sea, vol. II (1984); Yoshifumi Tanaka, The International Law of the Sea (2nd edn. 2016) 16

Reg. 3 (a) of the Regulations annexed to COLREGs. Art. 2 United Nations Convention on the Conditions for Registration of Ships, 7 February 1986, ILM 26, 1229 (not yet in force). 18 Katharina Bork et al., The Legal Regulation of Floats and Gliders – In Quest of a New Regime?, ODIL 39 (2008), 298, 307–308. 19 O’Connell (note 10), 748–750; see also, Churchill/Lowe (note 3), 154–155. 20 Bork et al. (note 16), 299–301. 21 Ibid., 308–309. See further Papanicolopulu on Arts. 258–259. 22 See Guilfoyle on Art. 86 MN 4. 17

692

Guilfoyle

Nationality of Ships

1–2

Art. 91

Documents: ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45; ILC, Summary of Replies from Governments and Conclusions of the Special Rapporteur, UN Doc. A/CN.4/97/Add.l (1956) Cases: ICJ, Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Merits, Judgment of 5 February 1970, ICJ Reports (1970), 3; ICJ, Nottebohm (Liechtenstein v. Guatemala), Merits, Judgment of 6 April 1955, ICJ Reports (1955), 4; ITLOS, The M/V ‘Saiga’ (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment of 1 July 1999, ITLOS Reports (1999), 10; ITLOS, The ‘Grand Prince’ Case (Belize v. France), Prompt Release, Judgment of 20 April 2001, ITLOS Reports (2001), 17; ITLOS, The ‘Juno Trader’ Case (Japan v. Russian Federation), Prompt Release, Judgment of 18 December 2004, ITLOS Reports (2004), 17; ITLOS, The ‘Tomimaru’ Case (Japan v. Russian Federation), Prompt Release, Judgment of 6 August 2007, ITLOS Reports (2005–2007), 68; ITLOS, The M/V ‘Virginia G’ Case (Panama v. Guinea-Bissau), Judgment of 14 April 2014, ITLOS Reports (2014), 1; Lauritzen v. Larsen, 345 U.S. 571 (1953); PCA, The Muscat Dhows (France v. Great Britain), Award of 8 August 1905, RIAA XI, 83; PCA, The Arctic Sunrise Arbitration (Netherlands v. Russia), Merits, Award of 14 August 2015, available at: http://www.pcacases.com/web/view/21 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘grant of its nationality’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘genuine link’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘documents’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 7 12 12 17 18

I. Purpose and Function The idea that vessels have nationality in a State (the ‘flag State’) plays an important role in 1 the law of the sea. It would clearly be undesirable for the high seas to be a vacuum juris: an area without law.1 The maintenance of order on the high seas (or the ‘submission of the high seas to law’2) requires that some State has authority over vessels upon them (and over the conduct of persons aboard). Thus, given that ‘the high seas are not subject to any national jurisdiction’ nor ‘centralised [governing] authority’,3 the jurisdiction of a flag State over its vessels ‘is the principal way in which order on the [high] seas is maintained.’4 The flag State is therefore responsible for various matters in respect of its flag vessels (� Art. 94). The principal benefit of nationality to a ship is the general immunity conferred from acts of interference on the high seas by foreign government vessels under Art. 110.5 The term ‘nationality’ is thus ‘shorthand for saying that a ship is jurisdictionally connected with a State.’6 Flag States are also entitled to exercise diplomatic protection over the ship itself, its crew 2 and cargo and other interests in the vessel and its operation. In this respect the International Tribunal for the Law of the Sea (ITLOS) said in M/V ‘Saiga’ (No. 2) Case: ‘[T]he Convention considers a ship as a unit … Thus the ship, everything on it, and every person involved or interested in its operations are treated as an entity linked to the flag State. The nationalities of these persons are not relevant.’7

1

Daniel P. O’Connell, The International Law of the Sea, vol. II (1984), 792 and 796. Yoshifumi Tanaka, The International Law of the Sea (2nd edn. 2016), 157; cf. Gilbert Gidel, Le droit international public de la mer: le temps de paix, vol. I (1932), 225. 3 Tanaka (note 2), 157. 4 Myres McDougal/William Burke, The Public Order of the Oceans (1962), 745–746. 5 See further Guilfoyle on Art. 110 MN 13–17. 6 O’Connell (note 1), 752. 7 ITLOS, The M/V ‘Saiga’ (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgement of 1 July 1999, ITLOS Reports (1999), para. 106; reaffirmed in ITLOS, The M/V ‘Virginia G’ Case (Panama v. Guinea-Bissau), Judgment of 14 April 2014, ITLOS Reports (2014), 1, para. 128; see also PCA, The Arctic Sunrise Arbitration (Netherlands v. Russia), Merits, Award of 14 August 2015, paras. 170–72, available at: http://www.pcacases.com/web/ view/21. 2

Guilfoyle

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Art. 91

3–5

Part VII. High seas

In this sense nationality is a principle of standing. This is not to say that the States of nationality of crew or other persons concerned in the ship could not also make claims on their behalf; further States of nationality may, of course, apply their criminal law to the conduct of their nationals abroad.8 3 One should note that Art. 91 contemplates three separate cases (not cumulative criteria) by which a ship might gain a State’s nationality: grant of nationality, registration and ‘the right to fly its flag’. In practice one might think of the first case as absorbing the latter two: ships are normally granted nationality either by registration or by a vessel being entitled in the absence of registration to fly a State’s flag. That is, UNCLOS does not require that ships be formally registered in order that they enjoy nationality. Many States’ national legal systems allow smaller vessels owned by a national to fly their flag and only require formal registration of vessels of a certain size (� Art. 94 (2)(a)). 9 The shipping registration laws of the United Kingdom, Australia and the United States – for example – take such an approach. 10 4 A principal controversy has been whether a State’s ability to confer nationality upon a ship is limited by law. Notoriously, some States require little connection between the beneficial party seeking to register a ship and the State itself. Such States are often referred to as ‘open registries’ or ‘flags of convenience’: ‘The low fees and taxation levied by such Stares, together with low crew costs (which result from low wages and manning levels) […] reduce the shipowner’s operating costs and […] [provide] a significant competitive advantage. […] These States are often said to be lax in the qualifications required of […] crews […] and to be unable or unwilling to exercise effective jurisdiction over their ships in matters of pollution control and shipping safety.’11

In this regard, Art. 91 contains two duties and a limitation conditioning a State’s right to confer its nationality upon a vessel. First, every State must ‘fix the conditions for the grant of its nationality to ships’ (Art. 91 (1)) and issue ‘documents’ to ‘ships to which it has granted the right to fly its flag’ (Art. 91 (2)). The sole limitation is the final sentence of Art. 91 (1), requiring that ‘[t]here must exist a genuine link between [a] State and the ship’ which flies its flag. 5 UNCLOS is silent as to the consequences of a lack of such a genuine link. 12 It might be thought desirable that States could refuse to recognise a vessel’s claim to their nationality in cases where ships apparently flying flags of convenience are engaged in undesirable activities.13 However, contrary to this, ITLOS held in M/V ‘Saiga’ (No. 2) Case that the purpose of the genuine link requirement: ‘[I]s to secure more effective implementation of the duties of the flag State, and not to establish criteria by reference to which the validity of the registration of ships in a flag State may be challenged by other States.’14 8 PCA, The Muscat Dhows (France v. Great Britain), Award of 8 August 1905, RIAA XI, 83, 96; cf. Art. 117 (duty to cooperate in respect of nationals’ fishing activities on the high seas) and Art. 97 (1) (flag State and State of nationality have jurisdiction in penal matters arising from a collision). 9 O’Connell (note 1), 753; Hermann Meijers, The Nationality of Ships (1967), 149–150. 10 S. 1 (1)(d) Merchant Shipping Act 1995 (UK) exempting from registration vessels under 24 metres in length owned by ‘qualified owners’, e. g. nationals; S. 13 Shipping Registration Act 1981 (Australia) exempting ships less than 24 metres in length, government ships, fishing vessels, and pleasure craft – although fishing vessels are registered under the Fisheries Management Act 1991; Vessels Eligible for Documentation, 46 USC § 12102(b) and Exemption from Number Requirements, 46 USC § 12303(a) exempting vessels under 5 tons, other exceptions may be made by regulations; compare S. 47(a) Canada Shipping Act 2001 exempting pleasure craft as defined by regulations. 11 Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 258–259. 12 Laurent Lucchini/Michel Voelckel, Droit de la mer, vol. II (2) (1996), 68–69. 13 ICJ, Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Merits, Judgment of 5 February 1970, Separate Opinion of Judge Jessup, ICJ Reports (1970) 161, 188. 14 M/V ‘Saiga’ Case (No. 2) (note 7), para. 83; reaffirmed in ITLOS, The M/V ‘Virginia G’ Case (note 7), paras. 112–113 (adding ‘the flag State is required […] to exercise effective jurisdiction and control over that ship in order to ensure that it operates in accordance with generally accepted international regulations, procedures and practices’).

694

Guilfoyle

Nationality of Ships

6–9

Art. 91

The final position under Art. 91 is thus that:

6

‘[i]nternational law does not have explicit rules for the attribution of ships to one or another State. It leaves that to municipal law, and merely requires that the country which offers its flag must regulate the conditions upon which ships may sail under it.’15

While the concept of a ‘genuine link’ would appear to import some higher standard, if so it has ‘not been widely observed in practice’.16

II. Historical Background The idea of vessels as having nationality and being subject to the law of a flag State was 7 consolidated only in the mid-to-late in the eighteenth century. ‘Before that time, merchant vessels were regarded as belonging to the subjects of a State, but not to the State itself.’ 17 Since then, international law has conferred on States, subject to any limitations imposed by treaty,18 ‘a virtually conclusive unilateral competence to confer their nationality upon vessels.’19 The principle is well-founded in case law. In 1905 in The Muscat Dhows it was said: ‘en ge´ne´ral il appartient a` tout Souverain de de´cider a` qui il accordera le droit d’arborer son pavillon et de fixer les re`gles auxquelles l’octroi de ce droit sera soumis’.20 Similarly, in 1953 the US Supreme Court noted: ‘Each State under international law may determine for itself the conditions on which it will grant its nationality to a merchant ship, thereby accepting responsibility for it and acquiring authority over it.’ 21

This view was not uncontested. The idea that a State’s competence to confer nationality on 8 individuals or ships is not unlimited follows the Nottebohm dictum that ‘nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties’. 22 This, on its face, says nothing more than that ‘nationality should be the legal reflection of a factual link’.23 An extrapolation from the case, however, is that other States are not required to recognise a grant of nationality absent such ‘genuine connection’.24 Judge Jessup thus suggested in Barcelona Traction that if: ‘a State purports to confer its nationality on ships by allowing them to fly its flag, without assuring that they meet such tests as management, ownership, jurisdiction and control, other States are not bound to recognize the asserted nationality of the ship.’25 However, formulating criteria by which to assess such a genuine link has proved elusive. 26 9 In an early International Law Commission (ILC) report, Special Rapporteur FRANÇOIS suggested starting from the Institut de Droit International’s 1896 Re`gles relatives a` l’usage du pavillon national pour les navires de commerce. Along these lines, in drafting its articles on 15

O’Connell (note 1), 752. Churchill/Lowe (note 11), 258. 17 Doris Ko ¨ nig, Flag of Ships, MPEPIL, para. 2, available at: http://www.mpepil.com. 18 Ibid., para. 21. 19 Ibid., para. 4; McDougal/Burke (note 4), 1012. 20 The Muscat Dhows (note 8), 93. O’Connell translates this as: ‘Generally speaking it belongs to every sovereign to decide to whom he will accord the right to fly his flag and to prescribe the rules governing such grants.’ O’Connell (note 1), 753. 21 Lauritzen v. Larsen, 345 U.S. 571 (1953), 571. 22 ICJ, Nottebohm (Liechtenstein v. Guatemala), Merits, Judgment of 6 April 1955, ICJ Reports (1955), 4, 23. 23 Churchill/Lowe (note 11), 258. 24 McDougal/Burke (note 4), 1026 and 1028–1033. 25 Barcelona Traction (note 13), para 46. On the concept of a cumulative test of genuine link plus effective exercise of jurisdiction, see McDougal/Burke (note 12), 1015. 26 McDougal/Burke (note 4), 1013–1015, and 1026, 1028–1033. A useful history of codification efforts is found in: Vincent P. Coglianti-Bantz, Disentangling the Genuine Link: Enquiries in Sea, Air and Space Law, Nordic Journal of International Law 79 (2010), 383, 390–398. 16

Guilfoyle

695

Art. 91

10

Part VII. High seas

the high seas, the ILC considered a rule requiring that a ship must only be granted nationality by a State if either owned by that State or more than half-owned by: its nationals, a partnership with a majority of partners domiciled in the State, or a company incorporated under national law and based in that State.27 The ILC ultimately had to abandon such approaches. Any proposal sufficiently detailed to guarantee actual State control over national ships ‘inevitably involve[d] conflict with a large number of [less stringent] national legislations’ and provoked adverse government reactions.28 The eventual drafting formulation produced by the ILC, showing the influence of Nottebohm,29 was contained in Art. 29 (1) of its Articles concerning the Law of the Sea and read: ‘Each State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. Nevertheless, for purposes of recognition of the national character of the ship by other States, there must exist a genuine link between the State and the ship’ [emphasis added].

While this drafting served as the model for Art. 5 of the 1958 Geneva Convention on the High Seas (High Seas Convention), the final sentence was not adopted.30 The ILC formulation was deemed to be unacceptable, opening the way to States having ‘an uncontrollable unilateral discretion to question and deny other states’ ascription of nationality to their ships’.31 Article 5 (1) of the High Seas Convention, final sentence, reads instead: ‘There must exist a genuine link between the State and the ship; in particular, the State must effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.’

This emphasised a trend away from ownership requirements and the possibility of nonrecognition by other States, towards a basic requirement of a ‘connection sufficient to guarantee the observance of the flag state’s international duties’.32 The second part of this sentence has been moved in UNCLOS to Art. 94, which elaborates flag State duties in detail.33 10 Later efforts to further define ‘genuine link’ were also unsuccessful. The UN Convention on Conditions for Registration of Ships 1986 (Registration Convention), were it to enter into force, would require that information concerning the owners and operators of ships be entered in a State’s register and that such persons should be ‘adequately identifiable for the purposes of ensuring their full accountability’.34 In addition, it would require that States only register vessels either: owned (or participated in) by nationals to a sufficient degree to permit the flag State to effectively exercise its jurisdiction; or crewed (to the extent of a ‘satisfactory … complement’) by nationals or residents.35 The Registration Convention has never entered force and these rules are therefore not binding.36 The (unsuccessful) approach taken in the Registration Convention may reflect its origins in the UN Conference on Trade and Development, where ‘[m]any developing countries demanded a fair share in the carriage of their export and import cargo’ and hoped to achieve this through strengthening the genuine link requirement and eliminating open registries.37 The States targeted, of course, had little incentive to join.38 27

See Ko¨nig (note 17), para. 5. Meijers (note 9), 205 and 208; ILC, Summary of Replies from Governments and Conclusions of the Special Rapporteur, UN Doc. A/CN.4/97/Add.l (1956), 13; ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12. 29 Churchill/Lowe (note 11), 258. 30 Art. 5 High Seas Convention. 31 McDougal/Burke (note 4), 1033. 32 Meijers (note 9), 214. 33 See Guilfoyle on Art. 94 MN 5–15. 34 Art. 6 United Nations Convention on Conditions for Registration of Ships (UN Registration Convention), 7 February 1986, text available in ILM 26, 1229. 35 Arts. 7 and 8 UN Registration Convention. 36 The UN Registration Convention requires 40 State parties accounting for 25 % of world tonnage in order to enter force (Art. 19). As of 1 August 2016 it had only 15 parties. 37 Ko ¨ nig (note 17), para. 11. 38 Churchill/Lowe (note 11), 260. 28

696

Guilfoyle

Nationality of Ships

11–13

Art. 91

Another attempt to limit the use of flags of convenience was made by the UN Food and 11 Agriculture Organization (FAO) in respect of high-seas fishing. Its 1993 Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels (FAO Compliance Agreement)39 attempts to curb the practice of vessels re-flagging to evade restrictions imposed by regional fisheries management treaties to which the original flag State was a party. Early suggestions that the FAO Compliance Agreement should or could achieve this through a ‘genuine link’ requirement were dropped; 40 however, Art. 5(a) of the agreement does require parties not to ‘authorise’ fishing vessels ‘previously registered in the territory of another Party’ which have ‘undermined the effectiveness of international conservation and management measures’. This appears to oblige member States ‘to refuse their flag to vessels known for illegal, unreported, and unregulated (‘IUU’) fishing in the past’.41 Additionally, it has been suggested by several ITLOS judges that simply de-registering flag vessels suspected of IUU fishing is an abrogation of flag State responsibility. 42

III. Elements 1. ‘grant of its nationality’ As noted, Art. 91 contains two duties and a limitation. As regards duties, every State must 12 ‘fix the conditions for the grant of its nationality to ships’ (Art. 91 (1)) and must issue ‘documents’ to ‘ships to which it has granted the right to fly its flag’ (Art. 91 (2)). As discussed above, the Convention acknowledges that ships may acquire nationality either by registration or through some other ‘right to fly a flag’ under the national law of the flag State. As regards limitations, there is a minimum requirement in Art. 91 (1) of a ‘genuine link between the State [of nationality] and the ship’ which flies its flag; although it has been difficult to give this any satisfactory content or meaning. Nationality is also a principle of standing – only the flag State may bring diplomatic protections claims on behalf of a ship considered as a unit. ITLOS thus had to consider the meaning of ‘flag State’, at least in respect of Art. 292 prompt release proceedings. 43 The leading cases are M/V ‘Saiga’ (No. 2) Case and Grand Prince. In M/V ‘Saiga’ (No. 2) Case, the vessel in question was provisionally registered in Saint 13 Vincent and the Grenadines on 12 March 1997.44 That registration was endorsed on shipping register as valid until 12 September 1997 but a permanent certificate of registration was not issued until 28 November 1997.45 The question arose as to whether Saint Vincent and the Grenadines was the flag State in the intervening period or whether the vessel was without nationality (i. e. stateless). Saint Vincent and the Grenadines asserted in a declaration dated 27 October 1998 that the vessel remained ‘validly registered’ under national law; further, it was able to lead evidence that under its law a vessel remains registered until removed from the register by statute.46 Thus, the ‘provisional certificate, like a passport, is evidence, but not the source, of national status’ and its expiry did not strip a vessel of its nationality under national law.47 The Tribunal held that the grant of nationality to a vessel was a matter within the ‘exclusive jurisdiction’ of a State and regulated by national law; although it could be 39

FAO Compliance Agreement, 24 November 1993, UNTS 2221, 120. Churchill/Lowe (note 11), 260–261. 41 Ko ¨ nig (note 17), para. 21. 42 ITLOS, The ‘Grand Prince’ Case (Belize v. France), Prompt Release, Judgment of 20 April 2001, Joint Dissenting Opinion of Judges Caminos, Marotta Rangel, Yankov, Yamamoto, Akl, Vukas, Marsit, Eiriksson and Jesus, ITLOS Reports (2001), 17 (para. 16). 43 See further Treves on Art. 292 MN 33–34. 44 M/V ‘Saiga’ Case (No. 2) (note 7), paras. 31 and 57. 45 Ibid., para. 57. 46 Ibid., para. 59. 47 Ibid., para. 60. 40

Guilfoyle

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Art. 91

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reviewed by the Tribunal as a question of fact ‘on the basis of evidence adduced by the parties.’48 It held that the evidence was that a vessel retained the nationality of Saint Vincent and the Grenadines until removed from the register, and thus the SAIGA had enjoyed that nationality at all relevant times. 14 In Grand Prince the evidence of nationality was inconsistent. The ship bore a provisional patent of navigation issued by Belize on 16 October 2000 and expiring 29 December 2000. 49 However, in a note verbale of 4 January 2001 Belize informed France that the vessel would be de-registered effective the same day due to its repeated fishing violations. 50 Of course, these two documents were inconsistent; if registration expired in 2000 there was no registration to cancel in 2001, and if there was a registration to cancel in 2001 it had not expired in 2000. 51 The difficulty was compounded by two communications from the Belize maritime registry of 26 and 30 March 2001 asserting it was only in the process of cancelling registration, and Belize wished to invoke nationality to allow the vessel’s owners to bring proceedings at ITLOS.52 The tribunal found that under national law the right to fly the Belizean flag ‘flows from the act of registration’ and, in the absence of other satisfactory evidence, it appears to have considered that the vessel lacked Belizean nationality by 4 January 2001. 53 Thus, Belize was found not to be the flag State when proceedings commenced. 15 On one view, the cases conflict: both involve expired national documents and diplomatic assertions that vessels remained validly registered under the relevant national law. However, the question may simply be one of burden of proof. In M/V ‘Saiga’ (No. 2) Case the flag State could lead evidence as to the operation of its national law sufficient to rebut the inference arising from ostensibly expired documents; in Grand Prince, Belize does not seem to have led evidence of a statutory scheme (although in the latter case the tribunal did not hear full arguments on the national law point).54 In any event, the tribunal was not prepared to look beyond national law to the substantive nature of the ‘genuine link’ between the vessel and flag State.55 16 A question has also arisen in a number of cases before ITLOS as to the effect on a vessel’s nationality, and a putative flag State’s standing, of confiscation by a foreign State as a penalty (e. g. for fisheries law violations). Such a confiscation could render diplomatic protection without object, and the ITLOS case law treats the prospect with caution. In Juno Trader, ITLOS rejected the respondent’s argument that the applicant lacked standing on the basis of confiscation, apparently as the confiscation order was subject to appeal and thus not final. 56 This would suggest that once all appeals are exhausted a change in ownership is definitive and the flag State loses any right of diplomatic protection. This result appears confirmed by the Tomimaru Case.57

48

Ibid., paras. 63–66. ITLOS, The ‘Grand Prince’ Case (Belize v. France), Prompt Release, Judgment of 20 April 2001, ITLOS Reports (2001), 11. 50 Ibid., para. 72. 51 Robin R. Churchill/Alan V. Lowe, The International Tribunal for the Law of the Sea: Survey for 2001, IJMCL 17 (2002), 463, 471. 52 The ‘Grand Prince’ Case (note 49), paras. 70 and 74. 53 Ibid., paras. 83–87. 54 See Churchill/Lowe (note 51). 55 See, however, The ‘Grand Prince’ Case (note 49), Separate Opinion of Judge Wolfrum, Separate Opinion of Judge Anderson, Separate Opinion of Judge Treves, and Separate Opinion of Judge Laing (all subjecting registration to some substantive scrutiny). The following discussion draws on research first published in: Douglas Guilfoyle, The High Seas, in: Donald R. Rothwell et al. (eds.), The Oxford Handbook of the Law of the Sea (2015), 203–225. 56 ITLOS, The ‘Juno Trader’ Case (Japan v. Russian Federation), Prompt Release, Judgment of 18 December 2004, ITLOS Reports (2004), 17 (para. 63). 57 ITLOS, The ‘Tomimaru’ Case (Japan v. Russian Federation), Prompt Release, Judgment of 6 August 2007, ITLOS Reports (2005–2007), 68 (para. 78): ‘a decision to confiscate’ does not prevent ITLOS hearing a case ‘while proceedings are still before’ national courts. 49

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2. ‘genuine link’ It would appear from the discussion above58 that no definition of ‘genuine link’ has ever 17 been internationally agreed. ITLOS has been unwilling to look past compliance with conditions of registration under national law. On this approach a ‘genuine link’ might appear to involve nothing more than compliance with ‘the conditions for the grant of … nationality’ referred to in paragraph 1. One thus ‘wonders whether the genuine link requirement has any autonomous application at all.’59 Attempts to create substantive requirements for the existence of a genuine link must be taken to have failed for want of support, or in the face of diverse and inconsistent State legislation. Thus proposed requirements that a ship not be granted nationality by a flag State unless it is either owned by that State or more than half-owned by, for example its nationals or a locally incorporate company were considered and rejected by the ILC as impractical; 60 while requirements as to ownership, crewing or that a flag State be able to effectively exercise its jurisdiction found in the Registration Convention have never been widely accepted.61 Renewed discussion within the UN system, particularly at the International Maritime Organisation and the FAO in 2003–2010, as to whether there is a need to more clearly define ‘genuine link’ have made no substantive progress towards a definition; such discussions have often come to the conclusion that the question is less one of genuine link and more one of effective implementation of flag State duties.62 Logically, the two are separate. A State might have a genuine link to a ship with its nationality but still be unable to exercise effective control over it. ‘The genuine link must not be confused with the duties of the flag State; it aims at securing, or at the very least facilitating, more effective implementation of the duties of the flag State.’63 Nonetheless in the absence of criteria, judging whether such a link exists is at best uncertain. It is also quite clear from the drafting history and the ITLOS case law that, if such a link is thought to be absent, non-recognition of a claim of nationality by other States is not an available sanction.

3. ‘documents’ As seen in the M/V ‘Saiga’ (No. 2) Case and Grand Prince cases discussed above, the 18 documents a flag State is required to issue to vessels may take a variety of names and forms prescribed by national law, including a ‘certificate of registration’ – which is a common term in national legislation64 – or a ‘patent of navigation’. National legislation may also refer to a ‘certificate of number’.65 As seen in M/V ‘Saiga’ (No. 2) Case, the fact that such documents have expired is only prima facie evidence that the vessel lacks nationality in the issuing State. The question of the validity of documents before an international tribunal will be a question of fact, albeit a fact judged by reference to national law.66

58

See supra, MN 8–10 and 15. Coglianti-Bantz (note 26), 403. 60 See supra, MN 9. 61 See supra, MN 10. 62 Coglianti-Bantz (note 26), 403–410. 63 Ibid., 403. 64 S. 13 Merchant Shipping Act 1995 (UK), ‘certificate of registration’; S. 19 Shipping Registration Act 1981 (Australia), ‘registration certificate’; S. 54 Canada Shipping Act 2001, ‘certificate of registry’. 65 Issuance of Documentation, 46 USC § 12105, stating a ship without US federal government documents may be given a ‘number’ by a US State and issued a ‘certificate of number’ by State authorities; Numbering Vessels, 46 USC § 12301(a) and Certificates of Numbers, 46 USC § 12304(a). 66 M/V ‘Saiga’ (No. 2) Case (note 7), para. 66; The ‘Grand Prince’ Case (note 49), para. 81. 59

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Article 92 Status of ships 1. Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas. A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry. 2. A ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality. Bibliography: Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 208; Gilbert Gidel, Le droit international public de la mer: le temps de paix, vol. I (1932); Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (2009); Herman Meijers, The Nationality of Ships (1967); Myres S. McDougal/William T. Burke, The Public Order of the Oceans (1962); Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995); Daniel P. O’Connell, The International Law of the Sea, vol. II (1984); Louis Savagado, Les navires battant pavillon d’une organisation internationale, AFDI 53 (2007), 640–671; Malcolm N. Shaw, International Law (7th edn. 2014) Documents: Harvard Research in International Law: Draft Convention on Piracy, AJIL 26, No. 1 Suppl. (1932); ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45 Cases: Le Louis [1817] 165 ER 1464 (UK); Naim Molvan v. Attorney General for Palestine (The ‘Asya’) [1948] AC 351 (UK); PCA, The Muscat Dhows (France v. Great Britain), Award of 8 August 1905, RIAA XI, 83; PCA, Arctic Sunrise Arbitration (Netherlands v. Russia), Merits, Award of 14 August 2015, available at: http://www.pcacases.com/web/view/21; PCIJ, The Case of the S.S. Lotus (France v. Turkey), Judgment of 7 September 1927, PCIJ Series A, No. 10 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘Ships shall sail under the flag of one State only’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘exclusive jurisdiction’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘save in exceptional cases expressly provided for in international treaties’. . . . . . 4. ‘port of call’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. ‘real transfer of ownership or change of registry’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. Vessels without nationality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 4 6 6 8 10 12 13 14

I. Purpose and Function 1

Public order on the high seas requires that vessels using it are subject to law: ‘[t]he absence of any authority over ships sailing the high seas would lead to chaos.’1 As a State may not extend its sovereignty over the high seas, public order has been pursued through the principle of the nationality of ships and ‘the consequent jurisdiction of the flag state over the ship’. 2 In principle, exclusive flag State jurisdiction allows ships to be controlled in their activities. Thus, Art. 92 ‘preserves the fundamental rule that foreign shipping cannot be interfered with on the high seas without leaving the evil of misconduct on the high seas altogether unregulated.’3 Exclusivity of jurisdiction, however, creates only a prohibition on exercising enforcement jurisdiction over 1 ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12, 25 (Art. 30). 2 Malcolm N. Shaw, International Law (7th edn. 2014), 443. 3 Daniel P. O’Connell, The International Law of the Sea, vol. II (1984), 800.

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foreign vessels on the high seas; multiple States may still attach legal consequences to acts committed on a vessel on the high seas as a matter of prescriptive jurisdiction.4 The idea that a vessel must be subjected to the national jurisdiction of a flag State has two 2 further corollaries in Art. 92. The first is that a vessel, unlike a natural person, may not enjoy dual nationality. This would compromise the integrity of a flag State’s duties and regulatory responsibilities (see � Art. 94). Thus, Art. 92 (2) provides that a ‘ship which sails under the flags of two or more States […] may not claim any of the nationalities in question with respect to any other State’. This phrasing further reinforces the concept of nationality as conferring an immunity from interference by foreign public vessels. The second corollary is that a vessel may be without nationality (a ‘stateless vessel’). Such statelessness may arise through failure to acquire any nationality (� Art. 91) or under Art. 92 (2) a vessel may be treated as stateless where it ‘sails under the flags of two or more States’ according to convenience. The Convention does not stipulate the consequences of such statelessness (although see � Art. 110 (1)(e)). Finally, it should be observed that Art 92 applies in the exclusive economic zone (EEZ) by 3 virtue of Art. 58 (2).5 However, in the EEZ the coastal State is expressly authorised to ‘take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations’ (Art. 73 (1)) giving effect to its sovereign rights and jurisdiction in the EEZ.6 Thus, despite the prima facie applicability of Art. 92, the arrest of foreign fishing vessels in the EEZ by the relevant coastal State is not uncommon (though subject to the limitations and procedures imposed by Arts. 73 and 292). This is thus a case of concurrent jurisdiction over the vessel’s fishing activities. ‘Similarly, under article 56, paragraph 1 (b)(ii), and article 246, there is concurrent jurisdiction over vessels conducting marine scientific research’ in the EEZ. 7

II. Historical Background The exclusive jurisdiction of flag State is usually taken to be an established principle of 4 customary international law, dating to at least 1750, and a necessary corollary of the freedom of the high seas.8 Thus it was said in Le Louis in 1817: ‘In places where no local authority exists, where the subjects of all States meet upon a footing of entire equality and independence, no one State, or any of its subjects, has a right to assume or exercise authority over the subjects of another. No nation can exercise a right of visitation and search upon the common and unappropriated parts of the sea [in respect of foreign vessels], save only on the belligerent claim.’9

In terms of treaty law, Article 6 of the 1958 Geneva Convention on the High Seas (High 5 Seas Convention)10 reads: ‘1. Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in these articles, shall be subject to its exclusive jurisdiction on the high seas. A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry. 4 Gilbert Gidel, Le droit international public de la mer: le temps de paix, vol. I (1932), 261; PCIJ, The Case of the S.S. Lotus (France v. Turkey), Judgment of 7 September 1927, PCIJ Series A, No. 10, 4. 5 PCA, The Arctic Sunrise Arbitration (Netherlands v. Russia), Merits, Award of 14 August 2015, para 231 and 244-5, available at: http://www.pcacases.com/web/view/21. 6 See Proelss on Art. 56 MN 8–22; Harrison on Art. 73 MN 12–15. 7 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995), 126. See further: Proelss on Art. 56 20–21; Huh/Nishimoto on Art 246 MN. 8 O’Connell (note 3), 799–801. 9 Le Louis [1817] 165 ER 1464 (UK). 10 Art. 5 High Seas Convention.

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2. A ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality.’

This language was adopted verbatim from Arts. 30 and 31 of the International Law Commission’s (ILC) Articles concerning the Law of the Sea.11 Only one minor change was made to this drafting in UNCLOS.12

III. Elements 1. ‘Ships shall sail under the flag of one State only’ Under Art. 92 (1), ships shall sail under one flag only. This clearly prohibits a vessel having multiple nationalities. However, it does not create an obligation upon individuals to only sail in a vessel which has nationality: the statelessness of vessels is not in itself unlawful. 13 7 A concrete prohibition is found in Art. 92 (1), second sentence: ‘A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry.’ The ILC noted that ‘changes of flag during a voyage are calculated to encourage […] abuses’ but that ‘the interests of navigation are opposed to total prohibition of change of flag during a voyage or while in a port of call.’14 It thus intended only to condemn such changes as ‘cannot be regarded as a bona fide transaction.’ 15 The drafting has been criticised as creating an unfortunate exception which ‘would appear to authorise a change of flag upon the high seas without change in registry, thus destroying the security of the registry and encouraging artistry in quick and fraudulent change of flags.’16 The use of ‘or’ might better be thought to acknowledge the possibility of change in ownership of a vessel not required to be registered. That is, small boats commonly derive their nationality from ownership (not registration) and thus their nationality could change with ownership alone.17 The use of ‘or’ should not be thought to create a general right to change the flag of vessels of a size required to be registered consequent upon a change in ownership alone. 6

2. ‘exclusive jurisdiction’ 8

Despite its wording, Art. 92 creates no absolute prohibition on States extending their prescriptive or regulatory jurisdiction to events occurring aboard a foreign vessel. A State can still assert jurisdiction to punish or regulate the conduct of its own nationals for acts committed aboard foreign vessels.18 For example, the UN Food and Agriculture Organization’s International Plan of Action on Illegal, Unreported and Unregulated Fishing 2001 states that, under UNCLOS, ‘and without prejudice to the primary responsibility of the flag state on the high seas, each State should, to the greatest extent possible, take measures or cooperate to ensure that nationals subject to their jurisdiction do not support or engage in IUU fishing.’19 11

ILC Law of the Sea Articles with Commentaries (note 1), 25. Nordquist/Nandan/Rosenne (note 7), 105. Hermann Meijers, The Nationality of Ships (1967), 318; infra, MN 14. 14 ILC Law of the Sea Articles with Commentaries (note 1), 25 (Art. 30). 15 Ibid. 16 Myres McDougal/William Burke, The Public Order of the Oceans (1962), 1086. 17 See O’Connell (note 3), 753, but note 935, where he is sceptical of the validity of State claims to assert jurisdiction over the offences of foreign nationals on foreign ships by the State of the ‘next port of call’; see further Guilfoyle on Art. 91 MN 3 and Art. 94 MN 8. 18 Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (2009), 101. See further PCA, The Muscat Dhows (France v. Great Britain), Award of 8 August 1905, RIAA XI, 83, 96; cf. Art. 117 (duty to cooperate in respect of nationals’ fishing activities on the high seas) and Art. 97 (1) (flag State and State of nationality have jurisdiction in penal matters arising from a collision). 19 FAO, International Plan of Action on Illegal, Unreported and Unregulated Fishing 2001, 23 June 2001, available at: http://www.fao.org/docrep/003/y1224e/y1224e00.htm. 12 13

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This clearly contemplated exercising prescriptive jurisdiction over nationals aboard foreign vessels. There is no rule in international law that two national juridical orders cannot exist in the same space at the same time.20 The prohibition is upon States exercising enforcement jurisdiction over foreign vessels on the high seas. The interest thus preserved is each State’s interest in freedom of navigation. Where a State has jurisdiction to prescribe conduct under international law, it is not 9 necessarily prevented from exercising that jurisdiction in respect of events occurring on the high seas once a person comes within its territorial jurisdiction. 21 The point is illustrated by the Lotus case, involving a collision between a French and Turkish vessel and the subsequent prosecution of the French officer responsible in Turkey.22 ‘The narrow, and best, ground of the decision was that the collision had ‘taken place’ on the Turkish ship and that the officer responsible could therefore be prosecuted in Turkey as well as by France.’ 23 The principle in Lotus, insofar as proceedings arising from collisions are concerned, has since been overturned by treaty law (see � Art. 97).24 This does not, however, cast doubt upon the general proposition: that concurrent jurisdiction over criminal acts on the high seas is possible. 25 It is therefore perhaps better to consider ‘exclusive’ flag State jurisdiction an ‘excluding jurisdiction’26 rather than a rule of true exclusivity.

3. ‘save in exceptional cases expressly provided for in international treaties’ This exclusive jurisdiction is also subject to exceptions ‘in exceptional cases expressly 10 provided for in international treaties or in this Convention’ (see � Art. 105; Art. 110; Art. 111). The classic example in international law is the jurisdiction all States have to board vessels reasonably suspected of piracy (Art. 110 (a)). The most common examples are bilateral or multilateral treaties dealing with: the management of high seas fisheries; 27 the interception of vessels smuggling narcotics at sea;28 and, increasingly, vessels suspected of being engaged in the proliferation of weapons of mass destruction or associated technologies.29 Under such treaties, a non-flag State may be able to board a suspect vessel and inspect it or take further law-enforcement action according to the terms of the treaty. 30 However, it is not only by treaty a State may waive its exclusive jurisdiction to allow a 11 foreign warship to board its flag vessel. State practice suggests an exchange of diplomatic notes or other ad hoc arrangements are sufficient at international law. 31 Where waivers of consent do occur they usually authorise only limited and specified measures. The flag State thus remains in control of the extent to which a boarding State exercises jurisdiction, but may permit action up to and including the arrest of persons on board and their being subjected to the national criminal law of the (foreign) boarding State.32 20 Gidel (note 4), 261; on concurrent jurisdiction on the high seas, see also Louis Savagado, Les navires battant pavillon d’une organisation internationale, AFDI 53 (2007), 640, 661. 21 Although one should note that UNCLOS regulates the exercise of port or coastal State jurisdiction over ships in certain cases, see e. g. Arts. 27 (5), 211, 218 and 220. 22 Lotus Case (note 4), Series A, No. 10, 4. 23 Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 208. 24 See also Art. 1 International Convention for the Unification of Certain Rules Relating to Penal Jurisdiction in Matters of Collision and Other Incidents of Navigation, 10 May 1952, UNTS 439, 233. 25 Guilfoyle (note 17), passim and especially 297, 311–313, 340–342. 26 Harvard Research in International Law: Draft Convention on Piracy, AJIL 26, No. 1 Suppl. (1932), 739, 810. 27 For example Arts. 21 and 22 UN Fish Stocks Agreement. 28 For example Art. 17 (4) United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 20 December 1988, UNTS 1582, 95. 29 For example Protocol of 2005 to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 14 October 2005, IMO Doc. LEG/CONF.15/21. 30 Guilfoyle (note 16), Ch. 5, 6 and 9. 31 See for example: ibid., Ch. 96, 142, 188 and 245. See also Guilfoyle on Art. 110 MN 3. 32 Ibid., especially at Ch. 5 and 296. See also discussion of drug interdiction treaties in Guilfoyle on Art. 108 MN 8.

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4. ‘port of call’ 12

A ‘port of call’ is a port in which a ship stops during a voyage.33 The expression is not used elsewhere in the Convention, but could be construed to include roadsteads. 34

5. ‘real transfer of ownership or change of registry’ 13

The second sentence of Art. 92 (2) provides: ‘A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry’. The provision is broadly aimed at prohibiting a change of flag during a voyage, as this practice is typically associated with a change of registry to a flag of convenience in order to avoid proper legal regulations of the vessel’s activities. The ILC said of this provision, though perhaps somewhat unhelpfully, ‘The Commission is aware that changes of flag during a voyage are calculated to encourage the abuses stigmatized by this article. The Commission also realizes that the interests of navigation are opposed to total prohibition of change of flag during a voyage or while in a port of call. In adopting the second sentence of this article, the Commission intended to condemn any change of flag which cannot be regarded as a bona fide transaction.’35

While a laudable aim, there is no obvious manner in which such a provision could ever be enforced.

6. Vessels without nationality 14

Art. 92 (2) provides that a ship sailing under two or more flags and using them according to convenience ‘may be assimilated to a ship without nationality’. This obviously presumes a pre-existing category, ‘ship without nationality’ (stateless vessel), to which the rule in Art. 92 (2) refers. The term, however, is not defined in UNCLOS (although see � Art. 110). M EIJERS argues that freedom of navigation on the high seas is a right of States and can only be enjoyed by vessels having nationality of a State, thus ‘stateless ship-users cannot appeal to the freedom of the seas’.36 On this approach, in the absence of nationality there is no exclusive jurisdiction and ‘no state is then prevented … from extending its authority over’ the ship. 37 The point is not without controversy, however.38

Article 93 Ships flying the flag of the United Nations, its specialized agencies and the International Atomic Energy Agency The preceding articles do not prejudice the question of ships employed on the official service of the United Nations, its specialized agencies or the International Atomic Energy Agency, flying the flag of the organization. Bibliography: Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995); Louis Savagado, Les navires battant pavillon d’une organisation internationale, AFDI 53 (2007), 640–671; Nagendra Singh, International Law Problems of Merchant Shipping, RdC 197 (1962-III), 1–167 33

Oxford English Dictionary (3rd edn. 2006): port, n. 1, definition I (1)(c). Nordquist/Nandan/Rosenne (note 7), 127. 35 ILC Law of the Sea Articles with Commentaries (note 1), 25 (Art. 30). 36 Meijers (note 13), 319. 37 Ibid., 320; McDougal/Burke (note 15), 1084–1085; Naim Molvan v. Attorney General for Palestine (The ‘Asya’) [1948] AC 351 (UK), 369. 38 Churchill/Lowe (note 22), 214; see further Guilfoyle on Art. 110 MN 13–15. 34

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Documents: ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45; UN OLA, Use of the United Nations Flag on Vessels – Precedents Involving the Display of the United Nations Flag in the Framework of Peacekeeping Operations – Special Cases Involving Vessels Flying the United Nations Flag (1992), reproduced in: UN Juridical Yearbook (1992), 411–415; UN OLA, Flag Etiquette Code to be Followed on Naval Vessels Provided by a TroopContributing Country to the United Nations Observer Group in Central America-Practice Concerning the Use of the United Nations Flag on Vessels, Pursuant to the 1958 Geneva Convention on the High Seas, Status Agreements Concluded between the United Nations and Host Countries and the United Nations Flag Code and Regulations (1990), reproduced in: UN Juridical Yearbook (1990), 252–254 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘preceding articles’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘employed on […] official service’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘flying the flag of the organisation’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 4 6 6 7 8

I. Purpose and Function This article addresses the question ‘whether ships can sail under the flag of subjects of 1 international law other than States, notably international organisations.’ 1 Art. 93 appears to ‘leave the question open’, but takes a restrictive approach, addressing only the status of the UN, its specialised agencies and the International Atomic Energy Agency (IAEA). Ships have, in practice, sailed under the UN flag. Allowing vessels to sail under such a flag serves both to identify ‘those vessels which are 2 performing certain functions on behalf of or in service of the [international] organisation’ 2 in question and show ‘their special status – entitl[ing] them to the privileges and immunities accorded to those organisations under the applicable international instruments’. 3 While it might be thought that the aim of allowing a vessel to fly the flag of an international organisation is thus to ‘limit national control’ and ‘insulate the ship from the application of national rules incompatible with United Nations obligations’, this may nonetheless require the agreement of the vessel’s State of nationality for the reasons discussed below. 4 By virtue of Art. 58 (2), the present article applies in the exclusive economic zone (EEZ). 3 On its application to other ocean spaces, see the discussion of the words ‘preceding articles’, below.5

II. Historical Background In its draft articles on the law of the sea the International Law Commission (ILC) 4 originally rejected including any provision dealing specifically with the issue, noting: ‘Member States will obviously respect the protection exercised by the United Nations over a ship … authorized the ship to fly the United Nations flag. But it must not be forgotten that the legal system of 1

Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 262. UN OLA, Flag Etiquette Code to be Followed on Naval Vessels Provided by a Troop-Contributing Country to the United Nations Observer Group in Central America-Practice Concerning the Use of the United Nations Flag on Vessels, pursuant to the 1958 Geneva Convention on the High Seas, Status Agreements Concluded between the United Nations and Host Countries and the United Nations Flag Code and Regulations (1990), reproduced in: UN Juridical Yearbook (1990), 252, 253. 3 Ibid., 252. 4 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995), 134; infra, MN 8. 5 Infra, MN 6–7. 2

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the flag State applies to the ship authorized to fly the flag. In this respect, the flag of the United Nations or of another international organization cannot be assimilated to the flag of a State.’ 6

That is, the ILC took the view that the applicable law aboard a vessel would remain that of a State of nationality. 5 The 1958 Geneva Convention on the High Seas (High Seas Convention) contained a provision similar to, but broader than, that found in UNCLOS, stating: ‘The provisions of the preceding articles do not prejudice the question of ships employed on the official service of an intergovernmental organization flying the flag of the organization.’7 In 1975 at UNCLOS III, the general reference to ‘an intergovernmental organization’ was replaced with the present language: ‘the United Nations, its specialized agencies or the International Atomic Energy Agency, flying the flag of the organization’. The travaux pre´paratoires shed no light on the reasons for this change. The retention of the negative ‘do not prejudice’ drafting probably reflects the difficulties encountered in attempting to elaborate a positive regulatory regime governing the question of ships flying the flags of international organizations. Problems with stipulating a detailed regulatory regime governing such cases were raised at the 1961 and 1962 Brussels Diplomatic Conferences on Maritime Law and included: 8 the applicability of the Safety of Life at Sea Convention (SOLAS) to such vessels (given that the international organizations cannot be a party to SOLAS);9 the question of how an international organization could be said to have a ‘genuine link’ with a vessel;10 the possibility that a vessel flying both a State flag and the flag of an international organisation might be considered stateless; 11 and the question of applicable civil and criminal law aboard such a vessel.12

III. Elements 1. ‘preceding articles’ 6

The words ‘preceding articles’ are generally taken to refer not only to the preceding articles of Part VII of the Convention, but relevant articles elsewhere. 13 Thus a vessel flying the flag of an international organisation enjoys not only the right of freedom of navigation on the high seas (� Art. 87 (1)(a)) but also of innocent passage in a territorial sea (� Art. 17) or archipelagic waters (� Art. 52) and transit passage through international straits (� Art. 38), etc.

2. ‘employed on […] official service’ 7

It has been noted that there is ‘no indication of the meaning’ of the words ‘employed on […] official service’14 and the term is one which may simply invite doctrinal confusion. 15 The contrast with the concept of a State owned or operated vessel used ‘only on government non-commercial service’ in Art. 96 is not particularly illuminating, given the clear differences in language. It is probably better to consider the actual practice of the UN and its specialised agencies, discussed below, as giving content to the concept. 6 ILC, Report of the International Law Commission, Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 25 (Art. 29). 7 Art. 7 High Seas Convention. 8 Nagendra Singh, International Law Problems of Merchant Shipping, RdC 197 (1962-III), 144–156. 9 See now: Art. IX International Convention for the Safety of Life at Sea 1974 (SOLAS 1974), as amended (superseding the SOLAS Conventions of 1948 and 1960). 10 See Guilfoyle on Art. 91 MN 17. 11 See Guilfoyle on Art. 92 MN 2 and 14. 12 Singh (note 8), 150–151. 13 Louis Savagado, Les navires battant pavillon d’une organisation internationale, AFDI 53 (2007), 640, 646; Nordquist/Nandan/Rosenne (note 4), 131. 14 Nordquist/Nandan/Rosenne (note 4), 132. 15 Savagado (note 12), 648.

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3. ‘flying the flag of the organisation’ In practice, vessels have sailed under the flag of the United Nations 16 in both peace- 8 keeping operations and other UN projects, but almost always in conjunction with the national flag of the ‘host State’ providing the vessel for UN service. 17 Historic examples include: fishing vessels used by the United Nations Korean Reconstruction Agency (1954); the United Nations Emergency Force in Egypt (1956–7); the United Nations Suez Canal Clearance Operation (1956–7); the United Nations Security Force in West Guinea (1962–3); the evacuation of Palestinian Liberation Organisation members from Tripoli (1983); and the United Nations Interim Force in Lebanon (2006-present). 18 The World Food Programme has utilised the UN flag on between one and two hundred ships over the years.19 In relation to such practice, a 1990 opinion of the UN Office of Legal Affairs noted: ‘International organizations are not States and would not be in a position to exercise jurisdiction on a ship, except in a very limited sense. The flag of the United Nations, or of other organizations […], rather serves […] [to identify] those vessels which are performing certain functions on behalf or in the service of the organization, and of showing that their special status entitles them to the privileges and immunities accorded to those organizations.’ 20

Thus, the ‘United Nations flag cannot be a substitute for the “civil ensign” of the ship, which remains the flag of the country of registration.’21 This appears to concur with the view of the ILC, above.22

Article 94 Duties of the flag State 1. Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag. 2. In particular every State shall: (a) maintain a register of ships containing the names and particulars of ships flying its flag, except those which are excluded from generally accepted international regulations on account of their small size; and (b) 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 concerning the ship. 3. Every State shall take such measures for ships flying its flag as are necessary to ensure safety at sea with regard, inter alia, to: (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; 16 The UN has no express power to grant its flag to vessels, the relevant practice is presumed to be an exercise of inherent powers: Nordquist/Nandan/Rosenne (note 4), 131; Savagado (note 12), 648. 17 See: Nordquist/Nandan/Rosenne (note 4), 132–134; Savagado (note 12), 651–652; Second Committee UNCLOS I, Use of the United Nations flag on Vessels: Note by the Secretariat, UN Doc. A/CONF.13/C.2/L.8 (1958), OR IV, 138–140 and UN OLA, Use of the United Nations Flag on Vessels – Precedents Involving the Display of the United Nations Flag in the Framework of Peacekeeping Operations – Special Cases Involving Vessels Flying the United Nations Flag (1992), reproduced in: UN Juridical Yearbook (1992), 411–415. 18 UN OLA, Flag Etiquette Code (note 2); Savagado (note 12), 649–655 and see 655–659 on the practice of other international organisations. The UN Command Military Armistice Commission mission in Korea conducted a joint fisheries enforcement operation with the Republic of Korea (ROK) in June 2016. Both UN and ROK flags were flown on the military police vessels involved. 19 Savagado (note 12), 654. 20 UN OLA Flag Etiquette Code (note 2), 253. 21 Ibid., 254. 22 Supra, MN 4.

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(c) the use of signals, the maintenance of communications and the prevention of collisions. 4. Such measures shall include those necessary to ensure: (a) that each ship, before registration and thereafter at appropriate intervals, is surveyed by a qualified surveyor of ships, and has on board such charts, nautical publications and navigational equipment and instruments as are appropriate for the safe navigation of the ship; (b) that each ship is in the charge of a master and officers who possess appropriate qualifications, in particular in seamanship, navigation, communications and marine engineering, and that the crew is appropriate in qualification and numbers for the type, size, machinery and equipment of the ship; (c) that the master, officers and, to the extent appropriate, the crew are fully conversant with and required to observe the applicable international regulations concerning the safety of life at sea, the prevention of collisions, the prevention, reduction and control of marine pollution, and the maintenance of communications by radio. 5. In taking the measures called for in paragraphs 3 and 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. 6. A State which has clear grounds to believe that proper jurisdiction and control with respect to a ship have not been exercised may report the facts to the flag State. Upon receiving such a report, the flag State shall investigate the matter and, if appropriate, take any action necessary to remedy the situation. 7. Each State shall cause an inquiry to be held by or before a suitably qualified person or persons into every marine casualty or incident of navigation on the high seas involving a ship flying its flag and causing loss of life or serious injury to nationals of another State or serious damage to ships or installations of another State or to the marine environment. The flag State and the other State shall cooperate in the conduct of any inquiry held by that other State into any such marine casualty or incident of navigation. Bibliography: Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (2009); James Harrison, Making the Law of the Sea: A Study in the Development of International Law (2011); Herman Meijers, The Nationality of Ships (1967); Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995); Daniel P. O’Connell, The International Law of the Sea, vol. II (1984); Bernard H. Oxman, The Duty to Respect Generally Accepted International Standards, NYU JILP 24 (1991–1992), 109–159; Willem van Reenen, Rules of Reference in the new Convention on the Law of the Sea, NYIL 12 (1981), 3–44; Donald R. Rothwell/Tim Stephens, The International Law of the Sea (2nd edn. 2016) Documents: ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45 Cases: ITLOS, The M/V ‘Saiga’ (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment of 1 July 1999, ITLOS Reports (1999), 10; ITLOS, The M/V ‘Virginia G’ Case (Panama v. Guinea-Bissau), Judgment of 14 April 2014, ITLOS Reports (2014), 1; ITLOS, Request for an Advisory Opinion Submitted by the SubRegional Fisheries Commission (SRFC), Advisory Opinion of 2 April 2015, available at: https://www.itlos.org/en/ cases/list-of-cases/case-no-21/ Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘effectively exercise its jurisdiction and control’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘maintain a register’ and ‘assume jurisdiction’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘measures […] necessary to ensure safety at sea’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Art. 94 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. ‘generally accepted international regulations’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. ‘proper jurisdiction and control […] have not been exercised’ . . . . . . . . . . . . . . . . . 7. ‘inquiry to be held […] into every marine casualty or incident of navigation on the high seas’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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I. Purpose and Function This article complements the exclusive jurisdiction of a flag State over vessels of its 1 nationality on the high seas (� Art. 92 (1)) by emphasising that that right has correlative duties. The flag State is obliged to exercise effective ‘jurisdiction and control’ in ‘administrative, technical and social matters’. This provision of jurisdiction and a requirement to exercise it effectively does not mean, however, other jurisdictions are entirely excluded. For example, ‘a State retains jurisdiction over its nationals wherever they might be, whether on foreign ships or anywhere else’; resulting concurrent jurisdiction. 1 Further, by virtue of Art. 58 (2) the present article has effect in the exclusive economic zone (EEZ). Concurrent jurisdiction may arise in the EEZ as a result of the coastal State’s jurisdiction over, inter alia, ‘protection and preservation of the marine environment’ and the flag State’s duty to exercise jurisdiction ‘in administrative, technical and social matters’.2 Other UNCLOS provisions also impose regulatory duties on flag States (e.g � Art. 99; Arts. 113–115). The drafting of Art. 94 refers in several places to rules found outside the text of the 2 Convention. In particular it refers to ‘generally accepted international regulations’ (paragraphs 2 (a) and 5), and ‘applicable international regulations’ (paragraph 4(c)). This crossreferencing serves to bring within UNCLOS: ‘the main provisions of a series of Conventions relating to working and social conditions of seamen and the safety of navigation especially […] those concluded under the auspices of the International Labour Organisation (ILO) and the International Maritime Organization (IMO).’3

The role of the ILO is not discussed in detail here.4

II. Historical Background Art. 94 is derived, in part, from a consolidation of Arts. 5 (1) (final sentence) and 10 of the 3 Geneva Convention on the High Seas 1958 (High Seas Convention). The first provided: ‘the [flag] State must effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag’.5 Art. 10 High Seas Convention is substantively very similar to UNCLOS Art. 94 (1), (3) and 4 (5). It thus formed the basis of the provisions regarding, inter alia: the effective exercise of jurisdiction by a flag State over vessels of its nationality; measures relating to safety (construction, manning, communications, etc); and the obligation to conform to generally accepted international regulations. Art. 10 High Seas Convention followed Art. 34 of the International Law Commission’s (ILC) Articles concerning the Law of the Sea. 6 The additional detail and further duties found in Art. 94 (2), (4), (6) and (7) had their origins in a 1974 working paper submitted to the second session of the Third United Nations Conference on the Law of the Sea by a group of west European States.7 This introduced such matters as the obligation to maintain a register, taking necessary measures to ensure

1

Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 262. See Guilfoyle on Art. 92 MN 8. Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995), 152. 3 Ibid., 142–143. 4 See: Donald R. Rothwell/Tim Stephens, The International Law of the Sea (2nd edn. 2016), 388–390; Churchill/ Lowe (note 1), 270; James Harrison, Making the Law of the Sea: A Study in the Development of International Law (2011), 258–263. 5 On the drafting of Art. 5 High Seas Convention, see Guilfoyle on Art. 91 MN 9. 6 ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12, 26–27 (Art. 34). 7 Nordquist/Nandan/Rosenne (note 2), 138–143. 2

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ship safety and the creation of certain procedures dealing with collisions or vessels which a State party reasonably suspected of not being subject to proper jurisdiction and control. The provisions as adopted may also have been influenced by the work of the Inter-Governmental Maritime Consultative Organization (now the IMO).8

III. Elements 1. ‘effectively exercise its jurisdiction and control’ 5

This paragraph sets out the obligation of each flag State to ‘effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag’. The term ‘administrative, technical and social matters’ is not defined elsewhere in the Convention but was apparently intended to recall: ‘suggestions made by the International Labour Office at the Preparatory Technical Maritime Conference in London in 1956 … to the effect that the flag state should have such legislation and organization as would ensure effective legal control in administrative, technical and social matters and of a structure and effectiveness proportionate to the size and composition of the fleet.’ 9

The term clearly extends at least to those matters listed in Art. 94 (3) concerning construction and seaworthiness, the crewing of vessels, and matters regarding communication and avoidance of collisions. It should also be interpreted to include criminal jurisdiction generally, as a flag State must be able to effectively discipline persons in the service of the ship under Art. 97 (1) (regarding penal jurisdiction over collisions and incidents of navigation). 6 The remaining paragraphs of Art. 94 elaborate this duty. Art. 94 (1) also has a relationship with the Art. 91 (1) requirement that there exist a ‘genuine link’ between a State and its flagged vessels.10 As held in M/V Saiga (No. 2), the purpose of this requirement ‘is to secure more effective implementation of the duties of the flag State, and not to establish criteria by reference to which the validity of the registration of ships in a flag State may be challenged by other States’; this proposition was reaffirmed in M/V Virginia G with the addition ‘the flag State is required […] to exercise effective jurisdiction and control over that ship in order to ensure that it operates in accordance with generally accepted international regulations, procedures and practices’.11 Art. 94 also complements Art. 92 (1) which grants exclusive jurisdiction over a vessel on the high seas to its State of nationality. 12 That exclusive jurisdiction not only guarantees freedom of navigation (� Art. 87 (1)(a); Art. 110) but also assumes order on the high seas will be maintained by flag State’s exercising such jurisdiction effectively.13

2. ‘maintain a register’ and ‘assume jurisdiction’ 7

Art. 94 (2) contains two explicit duties.14 Flag States must both maintain a register of national vessels and ‘assume jurisdiction under […] internal law’ over all ships ‘flying its 8

Ibid., 140. Second Committee UNCLOS I, Summary Records of the 6th-10th Meetings, UN Doc. A/CONF.13/C.2/SR.610 (1958), OR IV, 10 (7th Meeting, para. 16, comments of Mr. Vitelli (Italy)) and see further Second Committee UNCLOS I, Summary Records of the 21st–25th Meetings, UN Doc. A/CONF.13/C.2/SR.21-25 (1958), OR IV, 61 (23rd Meetings, para. 17, proposal of Mr. Gidel (France)). 10 For more on the ‘genuine link’ requirement, see Guilfoyle on Art. 91 MN 17. 11 ITLOS, The M/V ‘Saiga’ (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment of 1 July 1999, ITLOS Reports (1999), para. 83; ITLOS, The M/V ‘Virginia G’ Case (Panama v. Guinea-Bissau), Judgment of 14 April 2014, ITLOS Reports (2014), 1, para. 113. 12 Nordquist/Nandan/Rosenne (note 2), 144. 13 See Guilfoyle on Art. 92 MN 9. 14 Notably, this list of duties has been held to be non-exhaustive and, inter alia, flag States must adopt ‘must 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 [UNCLOS] in respect of the conservation 9

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flag’ and their masters, officers and crew in respect of ‘administrative, technical and social matters concerning the ship’. These duties are further elaborated in Art. 94 (3) and (4). As regards the duty to assume jurisdiction under national law, two points are noteworthy. First, ‘[t]he reference to “master” indicates’ that only non-military vessels are contemplated (naval ships are not usually referred to as having a ‘master’ and are governed by Art. 95); and by ‘necessary extension’ such national law will apply to all persons aboard ‘whether legally or not (e. g., stowaways).’15 Second, as regards the subject matters covered, the point is less one of regulating ‘matters concerning the ship’ than the activities of those aboard. 16 As regards the duty to maintain a register, the Convention is silent on what particulars, 8 beyond the vessel’s name, such a register should contain. The United Nations Convention on Conditions for Registration of Ships 1986 (UN Registration Convention) spells out in detail the information to be recorded in a State register; 17 this convention has, however, never entered into force.18 Art 94 (2), on its face, contains a general expectation that all vessels will be registered. Indeed, it has been said the intention was all ocean-going vessels should be registered; and that any possibility small vessels might not have to be registered ‘was created [only] to avoid imposing onerous requirements on small local vessels’ which due to their size ‘would not normally be used outside coastal waters.’19 While perhaps a desirable outcome, this is not consistent with the Convention’s language nor with State practice. The Convention simply does not require all ocean-going vessels to be registered. Its reference to vessels ‘excluded from generally accepted international regulations’ due to their ‘small size’20 appears only to attempt to place some limits on the well-known State practice of allowing small craft a right of nationality based on ownership alone without requiring registration (even where such vessels may be capable of voyages beyond coastal waters).21 There is, however, no consistent rule in State practice or international treaty law on point. The UN Registration Convention, for example, would exempt from registration any vessel under 500 gross tons.22 The Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas 1993, however, exempts vessels under 24 metres in length from having to be registered (subject to certain conditions).23 If these treaties are indicative, international law seems to accept a very wide category of ‘small’ craft.

3. ‘measures […] necessary to ensure safety at sea’ Art. 94 (3) obliges States to take measures ‘necessary to ensure safety at sea’. Art. 94 (3)(a)- 9 (c) set out a non-exhaustive list (‘inter alia’) of such measures. Art. 94 (3) (a) concerns the ‘construction, equipment and seaworthiness’ of ships (see also � Art. 219). Seaworthiness is not a purely technical concept: a vessel which is not adequately crewed, in terms of the training and number of personnel, may not be seaworthy (compare � Art. 21 (2)). 24 This introduces some overlap with Art. 94 (3)(b) dealing with ‘manning of ships, labour condiand management of marine living resources’: ITLOS, Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion of 2 April 2015, para 119, available at: https:// www.itlos.org/en/cases/list-of-cases/case-no-21/. 15 Nordquist/Nandan/Rosenne (note 2), 146. 16 Ibid. 17 Art. 11 (1) United Nations Convention on Conditions for Registration of Ships, 7 February 1986, ILM 26, 1229 (1987) (UN Registration Convention). 18 See Guilfoyle on Art. 91 MN 10. 19 Nordquist/Nandan/Rosenne (note 2), 146. 20 Nordquist/Nandan/Rosenne (note 2), 145 (footnote 9), 146 (footnote 10). 21 Daniel P. O’Connell, The International Law of the Sea, vol. II (1984), 753; Herman Meijers, The Nationality of Ships (1967), 149–150. 22 Art. 11 UN Registration Convention. 23 Art 2 (2) Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, 24 November 1993, UNTS 2221, 120. 24 Nordquist/Nandan/Rosenne (note 2), 147.

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tions’ and crew training and Art. 94 (4)(b). Finally, Art. 94 (3)(c) requires measures be taken regarding communications, ‘the use of signals, […] and the prevention of collisions.’ These are not, however, ‘generic requirements’ but rather, due to the operation of Art. 94 (5) (discussed below), States must, in taking these measures, ‘conform to generally accepted international regulations’.25

4. Art. 94 (4) 10

This paragraph further elaborates Art. 94 (3), requiring flag States take necessary measures to ensure: (a) flag vessels are regularly surveyed and have the ‘charts, … equipment and instruments’ needed for safe navigation; (b) that the master, crew and officers are sufficiently qualified and numerous ‘for the type, size, machinery and equipment of the ship’; and (c) that such personnel are ‘fully conversant with and required to observe the applicable international regulations’ discussed below. On its face, such a provision might appear either devoid of effective content (if it is left to each State to determine at its discretion what measures are ‘necessary’) or redundant (if all it requires is, in effect, that each State party to UNCLOS complies with its obligations under other treaties with respect to these subject matters). However, the effect of Art 94 (5) is to strengthen these obligations by creating a duty of compliance with ‘generally accepted international regulations’. This has the effect of making a wide range of international conventions binding on parties to UNCLOS.26 For example, under Art. 94 (4)(b), the requirements for sufficiently numerous crew to safely man the ship will be found in the Standards of Training, Certification and Watchkeeping Convention 1978.27

5. ‘generally accepted international regulations’ 11

Paragraph 5 provides that ‘in taking the measures called for in paragraphs 3 and 4 each State is required to conform to generally accepted international regulations’. This effectively incorporates by reference obligations found in other treaties or non-binding instruments, and gives them the force of a treaty obligation under UNCLOS (so-called ‘rules of reference’). 28 As a result such ‘generally accepted regulations’ form part of UNCLOS and could, for example, be the subject matter of a dispute under this article which would be subject to UNCLOS’ dispute settlement system. Several points must be noted, however. First, the Art. 94 duties are to ‘take measures’, not to directly adopt such regulations. 29 Second, the Convention sets out no test for when a rule is ‘generally accepted’. There are three possibilities. (1) On one view, a regulation found in a treaty becomes ‘generally accepted’ when the treaty meets its criteria for entry into force (especially where these require both a substantial number of States and States representing a majority of world shipping by tonnage). Such a view must be rejected due to the great variety of entry-into-force provisions found in practice. (2) A plausible alternative is to suggest a regulation becomes ‘generally accepted’ when it meets the criteria for acceptance as a rule of customary international law.30 This satisfies a desire for stable and known criteria, but risks being otiose. If the concepts were the same ‘there would be no need for the duty to respect generally accepted standards’.31 (3) A final view is that no precise formulation is possible, but both numerical (i. e. number of subscribing States) and qualitative factors (the practice of 25

Rothwell/Stephens (note 4), 359. See infra, MN 11–12. See infra, MN 12; Churchill/Lowe (note 1), 269–270. 28 See generally, Willem van Reenen, Rules of Reference in the New Convention on the Law of the Sea, NYIL 12 (1981), 3; Bernard H. Oxman, The Duty to Respect Generally Accepted International Standards, NYU JILP 24 (1991–1992), 109. 29 On the history of this wording, see Oxman (note 28), 129. 30 Van Reenen (note 28), 11; Harrison (note 4), 171–9. 31 Oxman (note 28), 146. 26 27

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specially affected States and States representing a majority of word shipping by tonnage) must be taken into account. That is, ‘both quantitative and functional majorities are important’. 32 This raises the question, which regulations are in practice ‘generally accepted’ under 12 Art. 94 Commentators generally agree that at least the following instruments (all binding on 95–99 % of world shipping by tonnage) qualify:33 – the International Convention for the Safety of Life at Sea 1974 (SOLAS 1974), as amended, and its protocols of 1978 and 1988 (dealing the seaworthiness of ships: their construction, equipment and operation); – the Convention on Load Lines 1966 (as amended) (dealing with overloading by prescribing ships’ minimum freeboard or draught); – the Convention on the International Regulations for Preventing Collisions at Sea 1972; – the two compulsory annexes to the International Convention for the Prevention of Pollution from Ships 1973 (MARPOL) as amended by the Protocol of 1978; and – the Standards of Training, Certification and Watchkeeping Convention 1978 as amended and substantially revised in 1995 and 2010. The key IMO Conventions are particularly influential in this regard due to their containing most of their technical standards in annexes which are easier to modify than the parent treaties. Amendments to the annexes are usually adopted by the relevant IMO committees and then communicated to State parties. However, such amendments to SOLAS and MARPOL occur under a tacit acceptance procedure: ‘amendments to the technical standards are deemed to have been accepted by all contracting parties unless objections are made by more than one third of contracting states representing at least fifty percent of the world’s fleet within a specified period.’ 34

Notably the expression ‘generally accepted regulations’ is not confined to formal treaties and ‘also covers regulations which are a product of international co-operation’, an example being regulations on use of signals.35

6. ‘proper jurisdiction and control […] have not been exercised’ Art. 94 (6), in theory, strengthens the system of flag State responsibility by providing that a 13 State having ‘clear grounds to believe that proper jurisdiction and control … have not been exercised’ over a ship may report that fact to the flag State. The flag State is then under a duty (‘shall’) to investigate and, if necessary, take remedial action. However, the concept of ‘clear grounds’ for reporting a vessel is not further elaborated (although the same concept – again without definition – is also found in a number of fisheries treaties36). In addition, it is unlikely that a State’s failure to exercise such jurisdiction and control will provide grounds for challenging the existence of a genuine link with the vessel (discussed above).37 This provision also contains no powers of arrest or corrective detention as found in relation to the EEZ (� Art. 73 (4)) or the prevention of marine pollution (� Art. 217 (6)). It thus appears to provide, in formal terms, a relatively weak system of oversight. However, there are instances in which regional fisheries management organisations have reported suspected failures to exercise proper control over fishing vessels to flag States which have then taken corrective action.38 32

Ibid., 157. See: Harrison (note 4), 171–172; Churchill/Lowe (note 2), 265–272; Rothwell/Stephens (note 4), 359–362; Nordquist/Nandan/Rosenne (note 2), 148–9. 34 Harrison (note 4), 161–162; Art. 8 SOLAS; Art. 16 (2)(f)(iii) MARPOL. 35 ILC Law of the Sea Articles with Commentaries (note 6), 27 (Article 34). 36 For example, Art. 21 (8) and (14) UN Fish Stocks Agreement providing that where an inspector has ‘clear grounds’ for suspecting a violation of ‘relevant conservation and management measures’ a vessel may be directed into port. 37 Supra, MN 6. 38 On interactions between the North-East Atlantic Fisheries Commission and Belize, see Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (2009), 133. 33

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7. ‘inquiry to be held […] into every marine casualty or incident of navigation on the high seas’ Under the first sentence of Art 94 (7), a flag State must conduct 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.’ The term ‘marine casualty’ may be taken to have the same meaning as ‘maritime casualty’ in Art. 221, 39 defined as: ‘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’ (see also � Art. 217 (7); Art. 290 (1)). 15 The second sentence of Art. 94 (7), appears to contemplate inquiries into serious marine causalities commenced by a State other than the flag State. In such cases the two States ‘shall cooperate in the conduct of any inquiry’. The precise requirements of this are not clear. An affected State could also request the flag State to commence an inquiry if it fails in its duty to do so under Art. 94 (6).40 14

Article 95 Immunity of warships on the high seas Warships on the high seas have complete immunity from the jurisdiction of any State other than the flag State. Bibliography: Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995); Daniel P. O’Connell, The International Law of the Sea, vol. I (1982); Daniel P. O’Connell, The International Law of the Sea, vol. II (1984); Bernard H. Oxman, The Regime of Warships under the United Nations Convention on the Law of the Sea, VJIL 24 (1983–1984), 809–863; Malcolm N. Shaw, International Law (7th edn. 2014) Documents: ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4–12 Cases: The Schooner Exchange v. McFaddon, 11 U.S. 116 (1812); ITLOS, The ‘ARA Libertad’ Case (Argentina v. Ghana), Request for the Prescription of Provisional Measures, Order of 15 December 2012, ITLOS Reports (2012), 326 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘warship’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘immunity’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 4 4 5

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Art. 95 acknowledges the status of warships as ‘a direct arm of the sovereign of the flag State’1 which are ordinarily entirely immune from foreign States’ enforcement jurisdiction. Thus, on the high seas, a warship may not be subject to any rights of visit and search 39

Nordquist/Nandan/Rosenne (note 2), 151. Rothwell/Stephens (note 4), 170. 1 Malcolm N. Shaw, International Law (7th edn. 2014), 404. Compare: The ‘ARA Libertad’ Case (Argentina v. Ghana), Request for the Prescription of Provisional Measures, Order of 15 December 2012, ITLOS Reports (2012) 326, para. 94 (‘a warship is an expression of the sovereignty of the State whose flag it flies’). 40

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(� Art. 110), or hot pursuit (� Art. 111). Art. 95 addresses only the immunity of warships, Art. 96 deals with the immunity of other ships on ‘government non-commercial service’. These immunities are further upheld by Art. 236, exempting such vessels from duties regarding protection and preservation of the marine environment. States may also ‘opt out’ of the application of the UNCLOS dispute settlement system as regards ‘military activities, including military activities by government vessels and aircraft engaged in non-commercial service’ (� Art. 298 (1)(b)). Notably, Art. 95 governs the position of warships only on the high seas and, by virtue of 2 Art. 58 (2), in the exclusive economic zone (EEZ).2 The position in the territorial sea is governed by Arts. 17–26 and Arts. 29–32. In particular Art. 32 provides that ‘nothing in this Convention affects the immunities of warships’ (subject to the exceptions contained in the aforementioned articles). This leaves the position of warships in territorial waters largely regulated by customary international law and applicable (non-UNCLOS) treaty law.3

II. Historical Background The customary status of the rule in the present article has never been in doubt. The 1926 3 International Convention for the Unification of Certain Rules Concerning the Immunity of State-owned Ships (Brussels Convention)4 exempted ‘ships of war’ from the rule that: ‘[s]ea-going ships owned or operated by States […] shall be subject, as regards claims in respect of the operation of such ships […]. to the same rules of liability and the same obligations as those applicable in the case of privately-owned ships.’5

In 1956 the International Law Commission (ILC) included as Art. 32 of its Articles concerning the Law of the Sea, the provision that: ‘Warships on the high seas have complete immunity from the jurisdiction of any State other than the flag State.’6 The ILC held this to be a ‘generally accepted’ rule of international law. This formulation was adopted as Art. 8 (1) 1958 Geneva Convention on the High Seas (High Seas Convention), and the present Art. 95 of UNCLOS. The equivalent article of both the ILC Articles and the High Seas Convention contained a definition of warship now found in Art. 29.

III. Elements 1. ‘warship’ ‘Warship’ is defined in Art. 29. The term covers only vessels belonging to armed forces, 4 appropriately marked, under command of an officer and with a crew ‘under regular armed forces discipline’.7 It is thus a narrower category than ‘warships or […] or other ships […] clearly marked and identifiable as being on government service and authorized to that effect’ (� Art. 107).

2 Although given the rights and jurisdiction reserved to coastal States by Art. 56, it is possible that ‘the quality of freedom exercisable in the EEZ is not necessarily that exercisable in the high seas’: Daniel P. O’Connell, The International Law of the Sea, vol. I (1982), 578. 3 Schooner Exchange v. McFaddon, 11 U.S. 116 (1812). 4 International Convention for the Unification of Certain Rules Concerning the Immunity of State-owned Ships, 10 April 1926, LNTS 176, 199. 5 Art. 1 Brussels Convention. 6 ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4, 7. 7 For further analysis, see Barnes on Art. 29 MN 6–9.

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2. ‘immunity’ As noted, warships are ordinarily entirely immune from the enforcement jurisdiction of foreign States while on the high seas. One may even suggest that any attempt ‘to exercise law enforcement jurisdiction against a foreign warship is in fact an attempt to threaten or use force against a sovereign instrumentality of a foreign State’,8 contrary to the general prohibition on the threat or use of force found in customary international law and elucidated in Art. 301. The point is, however, controversial. 6 Two exceptions are possible. The first is that a State may waive the immunity of, and its exclusive jurisdiction over, its own warship and authorise another State to take enforcement action in respect of the vessel or persons aboard.9 Second, if the crew of a warship mutiny and use it to conduct pirate attacks, it loses its immunity (� Art. 102) and may be seized (� Art. 105). 7 Art. 42 (5) covers the international responsibility of the flag State for any loss or damage to States bordering a strait caused by a ship or aircraft entitled to sovereign immunity which acts in a manner contrary to the laws and regulations of States bordering straits governing transit passage through straits used for international navigation, or contrary to other provisions of Part III.10 5

Article 96 Immunity of ships used only on government non-commercial service Ships owned or operated by a State and used only on government non-commercial service shall, on the high seas, have complete immunity from the jurisdiction of any State other than the flag State. Bibliography: Andrew Dickinson/Rae Lindsay/James P. Loonam, State Immunity: Selected Materials and Commentary (2004); Hazel Fox, International Law and Restraints on the Exercise of Jurisdiction by National Courts of States, in: Malcolm D. Evans (ed.), International Law (3rd edn. 2010), 336–378; Donald W. Greig, Specific Exceptions to Immunity under the International Law Commission’s Draft Articles, ICLQ 38 (1989), 560–588; Douglas Guilfoyle, Article 16, in: Roger O’Keefe/Christian Tams (eds.), The United Nations Convention on Jurisdictional Immunities of States and Their Property: A Commentary (2012), 259–276; Myron H. Nordquist/ Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995); Malcolm N. Shaw, International Law (7th edn. 2014) Documents: ILC, Report of the International Law Commission: Draft Articles on Jurisdictional Immunities of States and their Property with Commentaries, UN Doc. A/46/10 (1991), GAOR, 46th Sess., Suppl. 10, 13–51; ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR, 11th Sess., Suppl. 9, 4–12; ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45 Cases: The Philippine Admiral (Owners) v. Wallem Shipping (Hong Kong) Limited and Another, ILR 64 (1983), 90 (UK); I Congreso del Partido [1983] 1 AC 244 (UK); Landgericht Bremen (District Court of Bremen), In re The Charkow, 21 December 1959, ILR 65 (1984), 100 (Germany); Alfred Dunhill Inc v. Republic of Cuba, 425 U.S. 682 (1976); Rechtbank Amsterdam (District Court of Amsterdam), ICC Handel Maatschappij v. Union of Soviet Socialist Republics, 4 February 1976, Schip en Schade (1976), No. 43 (Netherlands)

8 Bernard H. Oxman, The Regime of Warships under the United Nations Convention on the Law of the Sea, VJIL 24 (1983–1984), 809, 815. 9 Daniel P. O’Connell, The International Law of the Sea, vol. II (1984), 736–737. 10 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995), 156; see further Jia on Art. 42 MN 19–20.

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Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘Ships owned or operated by a State’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘used only on government non-commercial service’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘shall, on the high seas, have complete immunity from the jurisdiction of any State other than the flag State’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 8 8 9 12

I. Purpose and Function Art. 96 extends the categories of State vessels entitled to immunity from interference by 1 foreign public vessels on the high seas beyond warships1 to government ships ‘used only on government non-commercial service’. This formulation follows the restrictive immunity doctrine, which generally holds that the commercial activities of States are not immune from the jurisdiction of foreign courts.2 The immunity of warships and government ships used only on government non-commer- 2 cial service is further upheld by Art. 236, exempting such vessels from the application of UNCLOS provisions on protection and preservation of the marine environment. 3 States may also ‘opt out’ of the application of the UNCLOS dispute settlement system as regards ‘military activities, including military activities by government vessels and aircraft engaged in non-commercial service’ (� Art. 298 (1)(b)). By virtue of Art. 58 (2) the present article has effect in the exclusive economic zone (EEZ).

II. Historical Background The choice of wording appears inspired by prior treaty law on commercial matters. The 3 International Convention for the Unification of Certain Rules Concerning the Immunity of State-Owned Ships of 1926 (Brussels Convention)4, as among the parties, subjected all government owned ships to ‘the same rules of liability and the same obligations’ as private ships5 with the exception of ‘vessels owned or operated by a State and employed exclusively at the time when the cause of action arises on Government and non-commercial service’. 6 The Brussels Convention thus classified seagoing vessels entitled to immunity ‘not according to ownership but according to the nature of their operation (exploitation) or their use, whether in “governmental and non-commercial” or in “commercial” service.’7 The International Law Commission (ILC), in its Articles concerning the Law of the Sea, 4 took a wider approach and would have accorded immunity to all government owned vessels, including those on commercial service: ‘Although aware of the objections to the granting of immunity to merchant ships used on government service […] the Commission held that, as regards navigation on the high seas, there 1

See Guilfoyle on Art. 95 MN 5–7. See Malcolm N. Shaw, International Law (7th edn. 2014), 512–530 (doctrine of restrictive immunity generally); Douglas Guilfoyle, Article 16: Ships Owned or Operated by a State, in: Roger O’Keefe/Christian Tams (eds.), The United Nations Convention on Jurisdictional Immunities of States and Their Property: A Commentary (2013), 259 et seq. on sovereign immunity and ships specifically. 3 See further Stephens on Art. 236 MN 8–11. 4 The International Convention for the Unification of Certain Rules Concerning the Immunity of State-Owned Ships, 10 April 1926, LNTS 176, 199. 5 Art. 1 Brussels Convention. 6 Art. 3 Brussels Convention. 7 ILC, Report of the International Law Commission: Draft Articles on Jurisdictional Immunities of States and their Property with Commentaries, UN Doc. A/46/10 (1991), GAOR, 46th Sess., Suppl. 10, 13, 51 (Art. 16). 2

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were no sufficient grounds for not granting to State ships used on commercial government service the same immunity as other State ships [from the exercise of powers by foreign States].’ 8

The ILC approach was logical. There was no compelling reason to follow a rule applying to commercial proceedings before national courts in respect of the exercise of public powers over vessels on the high seas by States. The two situations are factually distinct and concern quite different forms of jurisdiction: adjudication and enforcement. 5 Nonetheless, in drafting the 1958 Geneva Convention on the High Seas (High Seas Convention), the Brussels Convention model was preferred. Art. 9 High Seas Convention provides: ‘[s]hips owned or operated by a State and used only on government non-commercial service shall, on the high seas, have complete immunity from the jurisdiction of any State other than the flag State.’9

Similar language was also used in the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties 1969.10 The High Seas Convention drafting was retained verbatim in Art. 96, despite the fact that the Soviet Union, among other States, suggested that such immunity should apply to all government vessels.11 The formulation ‘government non-commercial service’ is also used in other instruments dealing with commercial immunities, such as the 1934 Protocol to the International Convention for the Unification of Certain Rules Concerning the Immunity of State-Owned Ships Brussels Convention (which clarifies that the word ‘operates’ covers both time and voyage charters)12 or, if it enters force, the UN Convention on Jurisdictional Immunities of States and their Property.13 6 Notably, the UNCLOS provisions on State vessel immunity in the territorial sea refer to ‘government ships operated for non-commercial purposes’ (� Art. 32) while Art. 96 refers to ships engaged in ‘government non-commercial service’. This inconsistent use of terms was first introduced in the ILC Articles concerning the Law of the Sea; Arts. 22 and 23 on immunities in the territorial sea referring to government ships used for commercial or noncommercial ‘purposes’, while Art. 32 referred to vessels on government ‘service’ in respect of jurisdiction on the high seas.14 It is not apparent any difference in meaning was intended. In its later practice the ILC tended to use the terms ‘service’ and ‘purposes’ interchangeably when discussing the jurisdictional immunities of government owned vessels. 15 7 Suggestions that Art. 96 should deal with the immunities of sunken warships and government vessels were defeated.16 These questions continue to be governed by rules of general international law.

8 ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR, 11th Sess., Suppl. 9, 26 (Art. 33). 9 Compare Art. 22 Convention on the Territorial Sea and Contiguous Zone. 10 Art. 1 International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 29 November 1969, UNTS 970, 212. 11 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995), 159. 12 Art. 1 Protocol to the International Convention for the Unification of Certain Rules Concerning the Immunity of State-Owned Ships, 24 May 1934, LNTS 176, 214 (Protocol to the Brussels Convention). 13 Art. 16, GA Res. 59/38 of 2 December 2004, Annex (not in force). 14 ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12, 26. 15 See ILC Draft Articles on Jurisdictional Immunities with Commentaries (note 7), 50–51 (Art. 16, paras. 2, 5, 6 and 7); and note that a drafting proposal to use the word ‘purposes’ throughout to avoid confusion was rejected, ibid., 52 (para. 11). 16 Nordquist/Nandan/Rosenne (note 11), 160–161.

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III. Elements 1. ‘Ships owned or operated by a State’ The phrase ‘owns or operates’ should be broadly interpreted. The words appear to be 8 taken from the Brussels Convention, and the ILC suggested that: ‘[t]he expression “a State which operates a ship” covers also the “possession”, “control”, “management” and “charter” of ships by a State, whether the charter is for a time or voyage, bare-boat or otherwise.’17

This was also the view taken in the Protocol to the Brussels Convention which confirmed that the words ‘operated by a State’ (exploite´s par lui) included vessels chartered by a State ‘whether for time or voyage’.18

2. ‘used only on government non-commercial service’ The words ‘government non-commercial’ provide a strict cumulative test. On the plain 9 wording of Art. 96, any commercial use of a ship results in the loss of its immunity. 19 That is, the word ‘only’ indicates that if a vessel is used for both non-commercial and commercial service concurrently then the article does not apply. This could cover the case of a government-owned vessel presently operated by a private commercial entity. This is a more restrictive test than that which is applied in some national courts in commercial cases. 20 The critical question is obviously by what test ‘commercial’ (non-immune) service is to be 10 assessed. The usual test under public international law is one of the nature of the act in question: whether a State is exercising powers or rights any other legal person could (acts jure gestionis) or is acting in the course of sovereign authority (acts jure imperii). On this approach only acts jure imperii will enjoy immunity. Even if a vessel is trading for a government purpose (or in government service), that does not relieve its acts of a commercial character. However, ‘[i]t has proved difficult to find a workable criterion, particularly for borderline cases, by which to distinguish a commercial transaction from one in the course of sovereign authority.’21 Further, developing States have historically contested the jure imperii test, preferring a test which focuses on the sovereign purposes of the acts in question. On a ‘sovereign purposes’ approach, ships carrying commercial cargoes in connection with technical assistance or emergency aid programmes’ should enjoy immunity.22 Indeed, one ILC member went further and suggested (in discussion post-dating UNCLOS) that: ‘in developing countries, it was the State that engaged in the bulk of development activities. Such States owned a number of ships operated by para-State enterprises, which carried out commercial activities to foster development. In such cases, it was difficult to argue that those ships, used exclusively for commercial purposes, could not enjoy the jurisdictional immunity of the State [as they were intended to raise State funds].’23

17

ILC Draft Articles on Jurisdictional Immunities with Commentaries (note 7), 51–52 (Art. 16). Art. 1 Protocol to the Brussels Convention. 19 Compare Art. 3 (1) Brussels Convention 1926. 20 For example the UK case law on S. 10 State Immunity Act 1978 contains a ‘de minimis exception’ for commercial activity, see Andrew Dickinson/Rae Lindsay/James P. Loonam, State Immunity: Selected Materials and Commentary (2004), 382. There is, however, considerable State practice in immunity cases supporting the strict approach apparently taken in Art. 96. 21 Hazel Fox, International Law and Restraints on the Exercise of Jurisdiction by National Courts of States, in: Malcolm D. Evans (ed.), International Law (3rd edn. 2010), 336, 355. 22 Donald W. Greig, Specific Exceptions to Immunity Under the International Law Commission’s Draft Articles: Part 2, ICLQ 38 (1989), 560, 579–580. 23 ILC, Summary Records of the Meetings of the 37th Session, ILC Yearbook (1985), vol. I, 244–245 (para. 24) (Mikuin Balanda). 18

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A remnant of this nature/purpose debate is found in Art. 2 (2) of the United Nations Convention on Jurisdictional Immunities of States and Their Property, which provides: ‘In determining whether a contract or transaction is a ‘commercial transaction’ [which does not enjoy immunity] […] reference should be made primarily to the nature of the contract or transaction, but its purpose should also be taken into account if the parties to the contract or transaction have so agreed, or if, in the practice of the State of the forum, that purpose is relevant to determining the non-commercial character of the contract or transaction.’

This wording was apparently designed by the ILC ‘to provide an adequate safeguard and protection for developing countries, especially in their endeavours to promote national economic development’;24 nonetheless, it clearly gives primacy to a ‘nature’ test. In any event, it appears settled in the case law that in any case where a vessel ‘has been operated as an ordinary merchant ship earning freight by carrying cargoes’, it enjoys no State immunity even if that trade is designed to raise public revenue.25 11 A warship that mutinies and conducts pirate attacks loses its immunity from interference (� Art. 102).

3. ‘shall, on the high seas, have complete immunity from the jurisdiction of any State other than the flag State’ The ILC Articles concerning the Law of the Sea provided for the immunity of government vessels on the basis that such vessels ‘shall be assimilated to and shall have the same immunity as warships’.26 The ILC stressed that this provision ‘concerns only the immunity of ships for the purpose of the exercise of powers by other States’ and did not imply ships enjoying immunity also enjoy the policing powers of warships (see � Art. 107; Art. 110).27 Nonetheless, this wording was replaced with the phrase ‘complete immunity’ in the High Seas Convention, presumably for consistency with the language used to define the immunity of warships.28 13 The ‘complete immunity’ conferred is from measures of stopping, searching and/or arresting a vessel, its crew or the cargo aboard carried out by foreign warships or vessels on government service. The ILC conceived the immunity of government vessels and warships while on the high seas to be an immunity from ‘the exercise of powers by other States’. 29 Such powers of enforcement jurisdiction are found in Arts. 105, 110 and 111 UNCLOS. 14 The words ‘complete immunity’ might also be taken to cover immunity from the adjudicative jurisdiction of foreign courts. If this was the intention it is notable that the ILC did not adopt the complete phrase defining ships entitled to immunity in civil proceedings found in the Brussels Convention, i. e.: ‘vessels owned or operated by a State and employed exclusively at the time when the cause of action arises on Government and non-commercial service’ (emphasis added).30 Two views could be taken of the omission. First, that only immunity from other States’ exercise of public powers (referred to above) was intended to be covered. Second, that leaving out these words makes the provision more general than the Brussels Convention and they therefore cover both adjudicative jurisdiction and enforcement jurisdiction. The first interpretation is preferable, as UNCLOS is not generally considered – as among its parties – to have superseded the Brussels Convention, which presumably would 12

24

Ibid., 30. The Philippine Admiral (Owners) v. Wallem Shipping (Hong Kong) Limited and Another, ILR 64 (1983), 90, 109 (UK); and for cases to the same effect, see I Congreso del Partido [1983] 1 AC 244 (UK); Landgericht Bremen (District Court of Bremen), In re The Charkow, 21. December 1959, ILR 65 (1984), 100 (Germany); Alfred Dunhill Inc v. Republic of Cuba, 425 U.S. 682 (1976); Rechtbank Amsterdam (District Court of Amsterdam), ICC Handel Maatschappij v. Union of Soviet Socialist Republics, 4 February 1976, Schip en Schade (1976), No. 43 (Netherlands). 26 ILC Law of the Sea Articles with Commentaries (note 14), 26 (Art. 33). 27 Ibid. 28 Nordquist/Nandan/Rosenne (note 11), 162. 29 ILC Law of the Sea Articles with Commentaries (note 14), 26 (Art. 33). 30 Art. 3 Brussels Convention. 25

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be the result if both treaties had rules covering the same subject matter (� Art. 311 (2)). There is probably no difference in practice between the two views, however, as a vessel engaged exclusively on government non-commercial service would have immunity in respect of its acts from the adjudicative jurisdiction of foreign courts under general international law in any event. Inter-State disputes regarding military activities conducted by ‘government vessels and 15 aircraft engaged in non-commercial service’ may be excluded from the scope of the UNCLOS dispute settlement provisions under Art. 298 (1)(b). The immunity applies on the high seas and extends to the EEZ under Art. 58 (2). The 16 immunities of such vessels in the territorial sea are separately regulated by Art. 32.

Article 97 Penal jurisdiction in matters of collision or any other incident of navigation 1. In the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national. 2. In disciplinary matters, the State which has issued a master’s certificate or a certificate of competence or licence shall alone be competent, after due legal process, to pronounce the withdrawal of such certificates, even if the holder is not a national of the State which issued them. 3. No arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the flag State. Bibliography: Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); Peter Malanczuk, Akehurst’s Modern Introduction to International Law (1997); Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995); Daniel P. O’Connell, The International Law of the Sea, vol. II (1984) Documents: ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4–12; ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45 Cases: ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Netherlands/Denmark), Judgment of 20 February 1969, ICJ Reports (1969), 3; PCIJ, The Case of the S.S. Lotus (France v. Turkey), Judgment of 7 September 1927, PCIJ Series A, No. 10 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘incident of navigation’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘the State which has issued a master’s certificate or a certificate of competence’ 3. ‘No arrest or detention of a ship’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 6 6 7 9

I. Purpose and Function The present article serves to limit the States which may take penal or disciplinary 1 jurisdiction in matters of collision (involving one or more ships) and other ‘incident[s] of navigation’. As it is limited to penal or disciplinary matters, it has no application to civil Guilfoyle

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liability and questions of private international law. By virtue of Art. 58 (2) this rule will also apply in the exclusive economic zone (EEZ). 2 Art. 97 essentially overturns the decision of the Permanent Court of International Justice in the Lotus Case.1 In matters of ‘collision or any other incident of navigation’, Art. 97 restricts the national jurisdictions competent to take ‘penal or disciplinary’ action. In such cases only the authorities of either the flag State of the vessel causing the incident/collision or the State of nationality of the person allegedly responsible may initiate proceedings. This approach is supplemented by Art. 96 (2) and (3), providing for the exclusive jurisdiction of the State issuing a master’s certificate or license in disciplinary proceedings which could result in the withdrawal of that certificate or license and providing that only the flag State may order the arrest or detention of a ship.

II. Historical Background The Lotus Case concerned a high seas collision between the LOTUS, a French mail steamer, and the BOZ-KOURT, a Turkish collier. The collision resulted in the loss of eight lives aboard the Turkish ship and the rescue of ten others. When the LOTUS reached the Turkish port of Constantinople, the officer who had been in charge, Lieutenant Demons, was arrested and prosecuted. France alleged Turkey’s exercise of jurisdiction was contrary to international law, but the Permanent Court of International Justice (PCIJ) held that Demons could be prosecuted either by France or Turkey.2 ‘The narrow, and best, ground of the decision was that the collision had “taken place” on the Turkish ship’ and was therefore an event within the jurisdiction of the flag State (by analogy with the objective territorial principle). 3 The decision ‘produced alarm among seafarers, and a long campaign against the rule’, 4 which was thought to create the prospect of multiple prosecutions for the same offence. 4 This resulted first in the International Convention for the Unification of Certain Rules relating to Penal Jurisdiction in matters of Collisions and Other Incidents of Navigation 1952 (Brussels Penal Jurisdiction Convention).5 This provided in Arts 1 and 2: 3

‘In the event of a collision or any other incident of navigation concerning a sea-going ship and involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, criminal or disciplinary proceedings may be instituted only before the judicial or administrative authorities of the State of which the ship was flying the flag at the time of the collision or other incident of navigation’

and ‘In the case provided for in the preceding Article, no arrest or detention of the vessel shall be ordered, even as a measure of investigation, by any authorities other than those whose flag the ship was flying.’

5

With only very minor amendments to the wording, these provisions were adopted as Art. 35 of the International Law Commission’s (ILC) Articles concerning the Law of the Sea: ‘1. In the event of a collision or of any other incident of navigation concerning a ship on the high seas involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such persons except before the judicial or administrative authorities either of the flag State or of the State of which the accused person is a national. 1

PCIJ, The Case of the S.S. Lotus (France v. Turkey), Judgment of 7 September 1927, PCIJ Series A, No. 10, 4. Ibid., 10. 3 Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 208; cf. Daniel P. O’Connell, The International Law of the Sea, vol. II (1984), 800. 4 Peter Malanczuk, Akehurst’s Modern Introduction to International Law (1997), 109. 5 International Convention for the Unification of Certain Rules relating to Penal Jurisdiction in Matters of Collision and Other Incidents of Navigation, 10 May 1952, UNTS 439, 233. 2

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2. No arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the flag State.’6

This formulation was adopted in 1956 despite the fact that the Brussels Penal Jurisdiction Convention was both relatively new and there also being at least two States which did not regard Art 1 as stating customary international law.7 Other States at the time, however, appeared to consider the Brussels Rule desirable without expressly claiming it to be customary international law.8 The ILC drafting was modified slightly in Art. 11 (1) of the 1958 Geneva Convention on the High Seas (High Seas Convention), in particular by further treating the question of disciplinary proceedings in an additional paragraph which also acknowledged the jurisdiction of license issuing authorities over non-nationals; 9 and Art. 11 (1) of the High Seas Convention was subsequently reproduced almost verbatim as Art. 97, though where Art. 97 (1) uses ‘such person’ the High Seas Convention used ‘such persons’.10 There appears to have been no significant debate on this point during either UNCLOS I or UNCLOS III.11 Given that the rule has been re-enacted in successive widelyadhered to treaties – and without, it would appear, any debate on the principle involved – one may conclude that it now represents customary international law 12 in respect of collisions, incidents of navigation and disciplinary matters. In other cases of criminal jurisdiction the rule enunciated in the Lotus Case (events occurring aboard a ship are within the flag State’s criminal jurisdiction, even if those events commenced outside the ship) remains unaffected.

III. Elements 1. ‘incident of navigation’ The term ‘incident of navigation’ extends to cover a ‘maritime casualty’ as defined in Art. 221 6 (2);13 and according to the ILC may also be taken to include: ‘[d]amage to a submarine telegraph, telephone or high-voltage power cable or to a pipeline’ (� Arts. 113–115).14 The phrase ‘incident of navigation’ is also used in Art. 94 (7). While nothing in paragraph 1 allows 6 ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 8. 7 ILC, Comments by Governments on the Provisional Articles Concerning the Re ´gime of the High Seas and the Draft Articles on the Re´gime of the Territorial Sea Adopted by the International Law Commission at its Seventh Session, UN Doc. A/CN.4/99 and Add.1–9 (1956), reproduced in: ILC Yearbook (1956), vol. II, 43 (comments by China), 76 (comments by Turkey). 8 Ibid., 57 (comments by Israel), 64 (the Netherlands), 96 (Yugoslavia) and compare 79 (comments of South Africa). See further the comments in Second Committee UNCLOS I, Summary Records of the 1st–5th Meetings, UN Doc. A/CONF.13/C.2/SR.1-5 (1958), OR IV, 4, 5 (Lebanon); Second Committee UNCLOS I, Summary Records of the 6th–10th Meetings, UN Doc. A/CONF.13/C.2/SR.6-10 (1958), OR II, 5, 21 (Turkey – adhering to the position above); Second Committee UNCLOS I, Summary Records of the 11th–15th Meetings, UN Doc. A/CONF.13/C.2/SR.11-15 (1958), OR II, 13, 27 (International Labor Organization); Second Committee UNCLOS I, Summary Records of 16th–20th Meetings, UN Doc. A/CONF.13/C.2/SR.16-20 (1958), OR II, 40, 51 (South Africa); Second Committee UNCLOS I, Summary Records of 21st–25th Meetings, UN Doc. A/CONF.13/C.2/SR.21-25 (1958), OR II, 54, 57 (USSR). 9 This was the result of a French proposal, see Second Committee UNCLOS I, Report of the Second Committee, UN Doc. A/CONF.13/L.17 (1958), OR II, 96 (para. 29). 10 On the drafting history, see ibid., para. 30. 11 See, Summary Records of the 6th–10th Meetings (note 8), 19–21 (Tenth Meeting); Myron H. Nordquist/ Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995), 167–168, noting only a rejected Peruvian proposal which would have placed articles applicable in the EEZ and high seas in a separate section. 12 ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Netherlands/Denmark), Judgment of 20 February 1969, ICJ Reports (1969), 3 (paras. 71–74). 13 Nordquist/Nandan/Rosenne (note 11), 168. 14 ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12, 27 (Art. 35).

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the flag State of the damaged ship to assert jurisdiction, Art. 94 (6) and (7), however, allow ‘that State [to] request that the flag State exercise its jurisdiction and control in the matter, and both States are to cooperate in an inquiry into any maritime casualty or incident of navigation.’15

2. ‘the State which has issued a master’s certificate or a certificate of competence’ Art 97 (2) modifies the general rule slightly, and allows the State which issues a relevant certificate or license to take disciplinary proceedings which could result in the revocation of that certificate or license. A variety of occupations may require such certifications including master, chief mate and officer in charge of a navigational watch. Relevant minimum standards for certification are set by the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers 1978 as amended and substantially revised in 1995 and 2010 (STCW Convention). The effect of Art 97 (2) is to afford jurisdiction to such regulatory authorities, even when the license holder is a foreign national or serving on a vessel under a foreign flag. Numerous flag States will allow persons holding foreign certificates of competency to acts as masters or officers aboard a commercial vessel through a mutual recognition of qualifications procedure based on STCW Convention requirements.16 As a result, under Art. 97 three States may have jurisdictional competence: the flag State, the State of which the relevant crew members are nationals and the State issuing the master’s (or other relevant) certificate. 8 Originally the ILC and Brussels Penal Jurisdiction Convention drafting contemplated only that ‘some States [may] wish to be able to prosecute their nationals with a view to withdrawing the certificates issued to them’ (emphasis added). 17 It is not apparent why this change was made at the UNCLOS I Conference and adopted without comment at UNCLOS III, other than perhaps to acknowledge the reality that States do issue certificates of competence to non-nationals. 7

3. ‘No arrest or detention of a ship’ 9

Art. 97 (3) provides that: ‘[n]o arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the flag State’. This should clearly be limited to the context of ‘incidents of navigation’ occurring on the high seas (or in the EEZ) and does not state a general principle (see powers of arrest and detention in � Arts. 105; Art. 109 (4)). Other provisions of UNCLOS expressly recognise coastal State authority to arrest or temporarily detain foreign vessels in respect of certain activities (see � Arts. 27 (1); Art. 33 (1)(b); Art. 73; Art. 111; Art. 218; Art. 220; Art. 226; Art. 292). Certainly, a coastal State ‘may not take any steps on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed before the ship entered the territorial sea’ (see � Art. 27 (5)).

15

Nordquist/Nandan/Rosenne (note 11), 168. In the UK, for example, this would result in a United Kingdom Certificate of Equivalent Competency issued by the Maritime and Coastguard Agency. Presently the UK lists 47 flag States as issuing Certificates of Competency it will recognise. See the Certificate of Competency Application Information, available from the Maritime and Coastguard Agency at: https://www.gov.uk/government/publications/cec-accepted-countries. 17 ILC Law of the Sea Articles with Commentaries (note 14), 27 (Art. 35). 16

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Duty to render assistance

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Article 98 Duty to render assistance 1. Every State shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers: (a) to render assistance to any person found at sea in danger of being lost; (b) to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected of him; (c) after a collision, to render assistance to the other ship, its crew and its passengers and, where possible, to inform the other ship of the name of his own ship, its port of registry and the nearest port at which it will call. 2. Every coastal State shall promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea and, where circumstances so require, by way of mutual regional arrangements cooperate with neighbouring States for this purpose. Bibliography: Richard Barnes, Refugee Law at Sea, ICLQ 53 (2004), 47–77; Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (2009); Natalie Klein, A Case for Harmonizing Laws on Maritime Interceptions of Irregular Migrants, ICLQ 63 (2014) 787–814; Violeta Moreno-Lax, The EU Regime on Interdiction, Search and Rescue, and Disembarkation: The Frontex Guidelines for Intervention at Sea, IJMCL 25 (2010), 621–635; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995); Efthymios Papastavridis, ‘The Interplay between Maritime Interdiction Operations and Human Rights Law’, Acta Criminologica: Southern African Journal of Criminology 27 (special edition) (2014), 36–52.; Wilbur Holmes Smith II, The Duty to Render Assistance at Sea: Is It Effective or Adrift, CWILJ 2 (1971), 146–163; Emmerich de Vattell, The Law of Nations (1834) Documents: EU, Council Decision (CFSP) 2015/778 of 18 May 2015 on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED) [2015] OJ L 122/31; EU, Regulation No 656/2014 of the European Parliament and of the Council establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union [2014] OJ 189/93; ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/ 3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45; IMO Res. MSC.167(78) of 20 May 2004; IMO Res. MSC.155(78) of 20 May 2004; IMO Res. MSC.153(78) of 20 May 2004 Cases: ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Netherlands/Denmark), Judgment of 20 February 1969, ICJ Reports (1969), 3; General Claims Commission, Kate A. Hoff, Administratrix of the Estate of Samuel B. Allison, Deceased (U.S.A.) v. United Mexican States (The Rebecca), 2 April 1929, RIAA IV, 444; Scaramanga v. Stamp [1880] 5 CPD 295, 304 (UK); The New York, 16 U.S. (3 Wheaton) 59 (1818) Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘shall require the master’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘any person […] in danger of being lost’/‘persons in distress’. . . . . . . . . . . . . . . . . . . 3. ‘render assistance’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 4 7 7 8 10

I. Purpose and Function The duty to lend assistance to those in distress at sea is often described as an ‘ancient and 1 fundamental’ rule of the law of the sea.1 The present article is thus said to give ‘expression to 1 For example Richard Barnes, Refugee Law at Sea, ICLQ 53 (2004), 47. He cites in particular Vattell as having recognised ‘the special humanitarian consideration owing to vessels in distress’: Emmerich de Vattell, The Law of Nations (1834), 170.

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the general tradition and practice of all seafarers and of maritime law regarding the rendering of assistance to persons […] in distress at sea, and elementary considerations of humanity.’ 2 However, this may be an optimistic account. It is dubious, at least in common law jurisdictions, that such a duty was given effect in national law before the twentieth century. 3 Nonetheless, the International Law Commission (ILC) concluded in 1956 that the rule expressed in paragraph 1 was one of customary international law. 4 2 Art. 98 imposes two duties upon States. First, they must require the master of ships of their nationality to: render assistance to those at risk of being lost at sea; proceed to the rescue of persons in distress; and to render assistance after a collision and to exchange sufficient information that his or her vessel can later be found. This will enable his or her ship ‘to be located in the event of an inquiry’; and reflects the duties in Art. 94 (7). 5 Importantly, this is a duty that a State must impose on the masters of its vessels by national law. Second, coastal States are under a duty to ‘promote’ the ‘establishment, operation and maintenance of an adequate and effective search and rescue service’ including, where circumstances require, by entering regional arrangements with neighbouring States. The duty in paragraph 2, however, is clearly hortatory (it is a duty to ‘promote’ not ‘establish’) and likely reflects treaty law developments in relation to search and rescue arrangements that were already underway at the time (see para 5, below). 3 By virtue of Art. 58 (2) the present Article has effect in the exclusive economic zone. Under Art. 18 (2) ‘rendering assistance’ is included within the definition of passage for the purposes of innocent passage through the territorial sea.6 The duty therefore applies to the whole ocean.

II. Historical Background As noted above, despite the seeming confidence of the ILC in 1956 in stating that a positive legal duty to render assistance reflected ‘existing international law’, 7 pre-twentieth century sources supporting such an obligation are few. VATELL did not necessarily go so far as to support a positive legal duty,8 and nineteenth-century English case law spoke only of the need not to penalise those who went to the aid of a vessel in distress (e. g. if a contractual voyage was delayed the process).9 The earliest sources in positive law that is usually identified in academic doctrine are the twentieth century treaties discussed below. 5 The wording of Art. 98 (1), including sub-paragraphs (a)-(c), is taken from the ILC’s Articles concerning the Law of the Sea.10 The only variance between the texts is that Art. 98 (1) refers to ‘a ship flying its flag’ where the ILC Articles used ‘a ship sailing under its flag’; the wording is otherwise identical. The ILC took its wording of its article from Art. 11 of the International Convention for the Unification of Certain Rules of Law respecting Assistance and Salvage at Sea 1910,11 Art. 8 of the International Convention for the Unification of 4

2 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995), 171. 3 Wilbir Holmes Smith II, The Duty to Render Assistance at Sea: Is It Effective or Adrift, CWILJ 2 (1971), 146, 147. 4 ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12, 27 (Art. 36). 5 Nordquist/Nandan/Rosenne (note 2), 175. 6 On rendering assistance under Art. 18, see Barnes on Art. 18 MN 12. 7 Nordquist/Nandan/Rosenne (note 2), 175. 8 See supra, note 1. 9 As in the famous dicta of Cockburn CJ in Scaramanga v. Stamp [1880] 5 CPD 295, 304 (UK): ‘To all who have to trust themselves to the sea, it is of the utmost importance that the promptings of humanity in this respect should not be checked or interfered with by prudential considerations as to injurious consequences which may result to a ship or cargo from the rendering of the needed aid.’ 10 ILC Law of the Sea Articles with Commentaries (note 4), 27 (Art. 36). 11 Art. 11 International Convention for the Unification of Certain Rules of Law Respecting Assistance and Salvage at Sea, 23 September 1910, UKTS 4 (1913), Cd. 6677, provides: ‘Every master is bound, so far as he can

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Certain Rules of Law Related to Collision between Vessels 1910,12 and Reg. 10, Ch. V of the regulations annexed to the International Convention on the Safety of Life at Sea 1948 (SOLAS 1948).13 This increasing density of treaty law may have persuaded the ILC of the existence of a rule of customary international law.14 What is now Art. 98 (2) was added during the drafting of the 1958 Geneva Convention on 6 the High Seas (High Seas Convention).15 It reflects a rule found in Reg. 15, Ch. V of the regulations annexed to SOLAS 1948.16 The UNCLOS text adds only the word ‘operation’ and minor stylistic changes to the original drafting. The phrase ‘establishment, operation and maintenance’ reflects the language of the International Convention on the Safety of Life at Sea 1974 (SOLAS 1974).17 Other relevant conventions now include: the International Convention on Maritime Search and Rescue 1979 (MSR Convention)18 and the International Convention on Salvage 1989.19

III. Elements 1. ‘shall require the master’ The duties of rescue and assistance to be laid upon a master by national law under 7 Art. 98 (1) are not unqualified. In all cases a master is required only to take measures ‘so far as he can do so without serious danger’ to the ship, crew or passengers. The obligation to proceed ‘with all possible speed’ to rescue persons in distress in Art. 98 (1)(b) is qualified by the words: ‘in so far as such action may reasonably be expected of him’. In such cases, therefore, a master must make a discretionary judgement based on all the relevant circumstances of the case.20 It may thus be difficult to establish that a master has breached such a duty – outside cases where a rescue could clearly be effected without any danger to the rescuing vessel – given that a master’s first obligation is to the safety of his or her ship, crew and passengers.

do so without serious danger to his vessel, her crew and her passengers, to render assistance to everybody, even though an enemy, found at sea in danger of being lost. The owner of a vessel incurs no liability by reason of contravention of the above provision.’ The Convention was subsequently amended. See Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, 25 August 1924, UNTS 1412, 127. 12 Art. 8 International Convention for the Unification of Certain Rules of Law Related to Collision between Vessels and Protocol of Signature, 23 September 1910, [1930] ATS 14, provides: ‘After a collision, the master of each of the vessels […] is bound, so far as he can do so without serious danger to his vessel, her crew and her passengers, to render assistance to the other vessel, her crew and her passengers. He is likewise bound so far as possible to make known to the other vessel the name of his vessel and the port to which she belongs […]’. 13 SOLAS 1948 was the third Convention to bear this title and has since superseded by the SOLAS 1960 and 1974. Reg. 10, Ch. 5 Annex SOLAS 1948 provided in part: ‘The master of a ship at sea, on receiving a signal from any source that a ship or aircraft or survival craft thereof is in distress, is bound to proceed with all speed to the assistance of the persons in distress informing them is possible that he is doing so. If he is unable or, in the special circumstance of the case, considers it unreasonable or unnecessary […], he must enter in the log book the reason for failing’ to do so. 14 ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Netherlands/Denmark), Judgment of 20 February 1969, ICJ Reports (1969), 3 (paras. 71–74). 15 See Nordquist/Nandan/Rosenne (note 2), 172 (MN 98.2, footnote 2). 16 SOLAS 1948, annexed regulations, Ch. V, Reg. 15 read in part: ‘Each Contracting Government undertakes to ensure that any necessary arrangements are made for coast watching and for the rescue of vessels in distress at sea round its coasts. These arrangements should include the establishment, operation and maintenance of […] maritime safety facilities […]’. 17 See Reg. 15, Ch. V Annex SOLAS 1974. The Annexes have been frequently amended. 18 As amended. See especially Ch. 2 Annex MSR Convention. 19 Art. 10 International Convention on Salvage, 28 April 1989, UNTS 1953, 16. 20 Nordquist/Nandan/Rosenne (note 2), 175.

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2. ‘any person […] in danger of being lost’/‘persons in distress’ Art. 98 (1)(a) refers to ‘any person’. The provision clearly does not allow discrimination among classes of persons to be rescued at sea. Nonetheless, inconsistent State practice has arisen regarding asylum seekers rescued at sea. 21 The obligation to rescue distressed asylumseekers at sea was reaffirmed in 1985 by both the Council of the International Maritime Organisation (IMO) and the Executive Committee of the United Nations High Commissioner for Refugees,22 but remains subject to difficulties of implementation (see the discussion of ‘render assistance’, below). 9 No definition of ‘persons in distress’ is offered. At customary international law the definition of vessel in distress23 encompasses a situation where a ‘skilful mariner’ would have ‘a wellgrounded apprehension’ of the crew losing their lives. An EU regulation of 2014 governing maritime border surveillance operations coordinated by the external border agency FRONTEX contains a non-prescriptive list of criteria to consider in concluding whether a vessel is in distress (‘the FRONTEX regulation)’.24 These include: ‘the existence of a request for assistance’; ‘the seaworthiness of the vessel’; whether the vessel is overloaded with passengers; whether it has sufficient supplies to reach shore; whether it has qualified crew; its ‘safety, navigation and communication equipment’; whether anyone aboard has ‘urgent need of medical assistance’; whether there are decdeased persons aboard; ‘the presence of pregnant women or of children on board’; and ‘the weather and sea conditions’.25 8

3. ‘render assistance’ 10

The duty to render assistance found in Art. 98 (1)(a) and (c) is heavily qualified. First, as noted above, the master is only obliged to take such actions as ‘may reasonably be expected of him’. Second, the duty to render assistance does not, on the literal wording of UNCLOS, directly bind States (at least not beyond the measures specified in paragraph 2). The point is well illustrated by the MV TAMPA incident of 2001. On 26 August 2001, Australia coordinated a search and rescue operation for an Indonesian vessel sinking in the Indian Ocean with 433 asylum-seekers aboard. The MV TAMPA successfully rescued all persons aboard. Australia, Indonesia and Singapore then all publically refused to admit the persons rescued to their territory and stated that the MV TAMPA would not be admitted to their ports.26 Comparable situations have occurred involving both Italy (in the Cap Anamur incident of 2004) and Malta (in the Franciso Catalina incident of 2006).27 In all of these episodes disembarkation was only allowed once multilateral agreements governing the processing of asylum-seekers were negotiated and no obligation to allow disembarkation was conceded. This constitutes clear State practice and opinio juris that the affected States considered themselves under no legal obligation to permit access of a vessel carrying rescued persons to port or to allow their disembarkation. Following the MV TAMPA incident in 2004, the IMO issued ‘Guidelines on the Treatment of Persons Rescued at Sea’.28 Despite these guidelines, the duty of rescue remains ‘incomplete’, as they contains no concrete obligation governing ‘the disembarkation of rescued persons’. 29 21

Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (2009), 187–226. Nordquist/Nandan/Rosenne (note 2), 175. 23 See infra, MN 11. 24 Regulation No 656/2014 of the European Parliament and of the Council establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union [2014] OJ 189/93 (‘FRONTEX regulation’). 25 Ibid., Art. 9(2)(f). 26 On the MV Tampa incident generally see Barnes (note 1); Guilfoyle (note 21), 198–204. 27 Guilfoyle (note 21), 214–216, 220–221. 28 IMO Res. MSC.167(78) of 20 May 2004. 29 Barnes (note 1), 49 and 67. 22

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Amendments to SOLAS 1974 and the MSR Convention require States to ‘cooperate’ (emphasis added) to ensure masters may disembark rescued persons with ‘the minimum further deviation from the ship’s intended voyage’.30 In particular SOLAS 1974 now provides that: ‘The Contracting Government responsible for the search and rescue region in which such assistance is rendered shall exercise primary responsibility for ensuring such co-ordination and cooperation occurs, so that survivors assisted are disembarked from the assisting ship and delivered to a place of safety’.31

This might be thought to imply a government in Australia’s position in the MV Tampa incident now has a concrete obligation to allow disembarkation (if no other solution can be reached). The text, however, does not support that conclusion. The wording is carefully chosen. It expressly does not say either: (a) that the nearest port of call must allow disembarkation; or (b) that the State responsible for the relevant search and rescue region (‘the SAR State’) is exclusively responsible for ensuring disembarkation. All it says is that the SAR State has ‘primary’ (not exclusive, final or ultimate) responsibility to ensure ‘coordination and co-operation’ (an obligation of conduct not result). The drafting does encompass an obligation of result, being ‘that survivors assisted are disembarked’ – and a rescue mission is clearly not complete until that obligation is discharged. 32 However, the use of the passive voice leaves unanswered the critical question of by which State rescued persons must be disembarked in the absence of agreement among affected States. The question is only made more obscure by the lack of any definition of ‘place of safety’. 33 The drafting ultimately remains ambiguous and falls short of providing a clear rule as to where disembarkation of rescued persons shall occur. Nonetheless, a vessel in distress has, under customary international law, a right to enter 11 port and be held immune from local law (though not where such entry would risk public health or pollution).34 The test of distress is ‘that the necessity [of entering port] must be urgent and proceed from such a state of things as may be supposed to produce, on the mind of a skilful mariner, a well-grounded apprehension of the loss of the vessel and cargo or of the lives of the crew.’35

A severely overloaded vessel crowded with ‘boat people’ may well constitute a vessel in distress; as might a vessel which becomes overcrowded as a consequence of rescuing a large number of persons.36 The right of entry into port for a vessel in distress, however, does not encompass a duty on the part of the port State to allow disembarkation. As this discussion indicates, harmonising the duty of rescue with other human rights 12 norms has not proven easy.37 The EU FRONTEX Regulation of 2014 (noted above) attempts to address a number of these concerns. It requires that the operational plan for every maritime border surveillance operation coordinated by the FRONTEX agency provide for the disembarkation of rescued or intercepted persons. In particular, the regulation provides for disembarkation ‘in the third country from which the vessel is assumed to have departed’ or in cases where ‘that is not possible, disembarkation shall take place’ (emphasis added) in 30 See IMO Res. MSC.153(78) of 20 May 2004, Annex (para. 4) and IMO Res. MSC.155(78) of 20 May 2004, Annex (para. 3). See further discussion of Art 10, Frontex Regulation at MN 12 below. 31 Reg. 33 (1.1), Ch. V Annex SOLAS 1974. 32 Violeta Moreno Lax, The EU Regime on Interdiction, Search and Rescue, and Disembarkation: The Frontex Guidelines for Intervention at Sea, IJMCL 25 (2010), 621, 633. 33 Ibid. 34 Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 63. 35 The New York, 16 U.S. (3 Wheaton) 59 (1818), 68; cf. General Claims Commission, Kate A. Hoff, Administratrix of the Estate of Samuel B. Allison, Deceased (U.S.A.) v. United Mexican States (The Rebecca), 2 April 1929, RIAA IV, 444, 447–448. 36 Guilfoyle (note 20), 202, noting that the Tampa was only certified to carry only 40 persons and became unseaworthy with a further 438 persons aboard an open deck. 37 Natalie Klein, A Case for Harmonizing Laws on Maritime Interceptions of Irregular Migrants, ICLQ 63 (2014) 787–814.

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the territory of the EU Member State hosting the FRONTEX operation. 38 Rescued persons may only be disembarked in a place of safety, defined to mean a place where survivors’ ‘life is not threatened, [and] where their basic human needs can be met … taking into account the protection of their fundamental rights in compliance with the principle of non-refoulement’.39 More generally, no rescued or intercepted person may be disembarked in (or otherwise handed over to the authorities of) a country where there is a: ‘serious risk that he or she would be subjected to the death penalty, torture, persecution or other inhuman or degrading treatment or punishment, or where his or her life or freedom would be threatened on account of his or her race, religion, nationality, sexual orientation, membership of a particular social group or political opinion’

or a serious risk of expulsion to another country ‘in contravention of the principle of nonrefoulement.’40 These regulations have been justly praised for providing ‘for the first time … a matrix of clear and foreseeable rules for all [EU] maritime operations co-ordinated by FRONTEX.’41 While this is true, it remains to be seen whether other States or regional organizations will follow suit. Disappointingly, a similarly substantive and detailed approach was not taken in the 2015 instrument authorising the EU NAVFOR MED operation to combat migrant smuggling in the Mediterranean.42

Article 99 Prohibition of the transport of slaves Every State shall take effective measures to prevent and punish the transport of slaves in ships authorized to fly its flag and to prevent the unlawful use of its flag for that purpose. Any slave taking refuge on board any ship, whatever its flag, shall ipso facto be free. Bibliography: Jean Allain/Kevin Bales, Slavery and Its Definition, Global Dialogue 14 (2012), 6–14; Anne T. Gallagher/Fiona David, The International Law of Migrant Smuggling (2014); Myres S. McDougal/William T. Burke, The Public Order of the Oceans (1962); Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995); Efthymios Papastavridis, Interception of Human Beings on the High Seas: A Contemporary Analysis under International Law, SJILC 36 (2008–2009), 146–230; Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (2009) Documents: GA, Universal Declaration of Human Rights, GA Res. 217 A (III) of 10 December 1948; ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/ 3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45 Cases: ICTY Trial Chamber, The Prosecutor v. Dragoljub Kunarac, ICT-96-23-T, Judgment of 22 February 2001; Le Louis [1817] 165 ER 1464 (UK); The Antelope (1825) 23 U.S. (10 Wheat.) 66; The Queen v Tang [2008] HCA 39 (Australia) Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘slaves’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘effective measures’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘shall ipso facto be free’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

1 3 6 6 7 8

Art. 10(1), FRONTEX Regulation (n 24). Ibid., Arts. 2(12) and 10(c). 40 Ibid., Art 4(1). 41 Efthymios Papastavridis, ‘The Interplay between Maritime Interdiction Operations and Human Rights Law’, Acta Criminologica: Southern African Journal of Criminology 27 (special edition) (2014), 43. 42 Council Decision (CFSP) 2015/778 of 18 May 2015 on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED) [2015] OJ L 122/31 (the only references to human rights law and non-refoulment are found in the recitals, not the operative provisions). 39

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I. Purpose and Function In 1956, the International Law Commission (ILC) stated pithily: ‘[t]he duty of States to 1 prevent and punish the transport of slaves in ships authorized to fly their colours is generally recognized in international law.’1 The proposition follows both from historical practice concerning the slave trade and modern principles of human rights law such as the statement in the Universal Declaration of Human Rights that: ‘No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.’ 2 This general prohibition is expressed in the Art. 99 provision that ‘[a]ny slave taking refuge on board any ship, whatever its flag, shall ipso facto be free’. Thus, Art. 99 ‘serves as a link between the general law regarding the abolition of slavery and the law of the sea.’3 It is also a further restriction on the principle of the freedom of navigation on the high seas (� Art. 87 (1)(a)). Notably, however, while Art. 99 places duties upon flag States to ‘prevent and punish’ the 2 use of vessels flying its flag in the slave trade, it does not grant rights to take enforcement action against foreign vessels. While Art. 110 (1)(b) grants warships a right of visit over foreign vessels suspected of being engaged in the slave trade, it does not obviously grant a power to arrest vessels or persons aboard or to take prosecutorial action (as exists regarding piracy under Art. 105). By virtue of Art. 58 (2) the present article has effect in the exclusive economic zone (EEZ). If, however, a government vessel takes action to suppress the involvement of a vessel flying its flag in the slave trade while in another State’s EEZ it must act with ‘due regard’ for the coastal State’s rights and interests (� Art 58 (3)).

II. Historical Background In the nineteenth century the slave trade was not clearly recognised as a practice 3 prohibited by international law.4 Due to a growing consensus among States that this issue should be regulated on an international level, between 1831 and 1890 numerous treaties were concluded, providing for reciprocal rights of visit and inspection over vessels suspected of slave trading. This culminated in the multilateral General Act for the Repression of the African Slave Trade (General Act of Brussels) in 1890. 5 The provisions of the General Act relating to this issue were not re-enacted in the Convention to Suppress the Slave Trade and Slavery (Slavery Convention)6 of 1926, despite British proposals.7 Notably, the General Act provided in Arts 25 and 28: ‘[t]he signatory Powers engage to 4 adopt efficient measures […] to prevent the transportation of slaves on vessels authorized to fly their colours’ and ‘[a]ny slave who has taken refuge on board a ship of war bearing the flag of one of the signatory Powers, shall be immediately and definitively set free.’ 8 It also provided in Art. 29 that a slave detained against his will aboard a ‘native vessel’ could demand his liberty.9 1 ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12, 27 (Art. 37). 2 Art. 4 Universal Declaration of Human Rights, GA Res. 217 A (III) of 10 December 1948. 3 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995), 180. 4 Le Louis [1817] 165 ER 1464, 1475–1478 (UK); The Antelope (1825) 23 U.S. (10 Wheat.) 66, 115. 5 General Act for the Repression of the African Slave Trade, 2 July 1890, reproduced in part in UNCLOS I, 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, UN Doc. A/CONF.13/7 (1957), OR I, 166. 6 Convention to Suppress the Slave Trade and Slavery, 25 September 1926, LNTS 60, 253. 7 Myres McDougal/William Burke, The Public Order of the Oceans (1962), 883. 8 See Slave Trade Act (note 5), 126. 9 Ibid.

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Art. 37 of the ILC Articles concerning the Law of the Sea formulated these principles as: ‘Every State shall adopt effective measures to prevent and punish the transport of slaves in ships authorized to fly its colours, and to prevent the unlawful use of its flag for that purpose. Any slave taking refuge on board any ship, whatever its colours, shall ipso facto be free.’

The ILC noted that it had broadened the General Act’s wording ‘so as not to exclude government ships other than warships.’10 The ILC’s drafting was reproduced as Art. 13 of the 1958 Geneva Convention on the High Seas (High Seas Convention), with the substitution of the word ‘flag’ for ‘colours’. The High Seas Convention provision was reproduced in UNCLOS with only minor stylistic changes.11

III. Elements 1. ‘slaves’ 6

UNCLOS contains no definition of slavery, and there are no firm grounds to suggest that its meaning extends beyond the narrow Slavery Convention definition requiring the exercise of ‘powers attaching to the rights of ownership over a person.12 This definition, while now generally accepted as a statement of customary international law, 13 is not at first sight broad enough to encompass practices similar to slavery (such as debt bondage) or most forms of contemporary practices such as human trafficking by sea (potentially involving severe exploitation but not the assertion of rights of ownership).14 Indeed, a 1971 proposal by Malta to broaden the treaty wording to include reference to ‘persons in conditions akin to slavery’ was not adopted.15 A good case can be made, however, that the wording of the Slavery Convention naturally includes (and was intended to include) both de jure and de facto exercise of powers over a person associated with rights of ownership. 16 Such an approach would bring debt bondage within slavery, though not human trafficking. Nonetheless, some have argued that a progressive interpretation of the treaty law should allow the application of Arts. 99 and 110 (1)(b) to apply to human trafficking by sea.17 At present the only instrument expressly applicable to such cases is the Migrant Smuggling Protocol to the UN Convention against Transnational Organized Crime.18 Notably, the Protocol extends to all cases of irregular migration, not just the trafficking of persons into conditions of severe exploitation; and requires flag State consent before a vessel is boarded. 19

10

ILC Law of the Sea Articles with Commentaries (note 1), 27 (Art. 37). Nordquist/Nandan/Rosenne (note 3), 180. 12 Art. 1 Slavery Convention. 13 ICTY Trial Chamber, The Prosecutor v. Dragoljub Kunarac, ICT-96-23-T, Judgment of 22 February 2001, paras. 519, 520, available at: http://icty.org/x/cases/kunarac/tjug/en/kun-tj010222e.pdf. 14 Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (2009), 228–231. Those in debt-bondage are, technically, ‘persons of servile status’ and not slaves: Arts 1 and 7(b) Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery (Supplementary Anti-Slavery Convention). 15 Nordquist/Nandan/Rosenne (note 3), 180. 16 Jean Allain/Kevin Bales, Slavery and Its Definition, Global Dialogue 14 (2012), 8; The Queen v Tang [2008] HCA 39 (Australia), paras. 26 and 33. 17 Efthymios Papastavridis, Interception of Human Beings on the High Seas: A Contemporary Analysis Under International Law, SJILC 36 (2008–2009), 146, 163–178; see, however, Anne T. Gallagher/Fiona David, The International Law of Migrant Smuggling (2014), 246–247 (concluding efforts to equate human trafficking with slavery have been unsuccessful). 18 Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organized Crime (135 parties at 28 September 2012). See further Guilfoyle (note 14), 184–187. 19 Arts. 3 and 8 Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organized Crime. 11

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Art. 100

Duty to cooperate in the repression of piracy

2. ‘effective measures’ States are required both to ‘take effective measures to prevent and punish the transport of 7 slaves’ aboard their flag vessels and ‘to prevent the unlawful use of its flag for that purpose’. The precise modalities for enforcement of these prohibitions ‘are largely a matter for domestic law.’20 A more direct requirement that States make the act of transporting slaves a crime is found in the Supplementary Anti-Slavery Convention 1956, which provides: ‘The act of conveying or attempting to convey slaves from one country to another by whatever means of transport, or of being accessory thereto, shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to very severe penalties.’ 21

The Supplementary Anti-Slavery Convention is widely ratified, having 123 parties at time of writing.

3. ‘shall ipso facto be free’ The second sentence of the article provides: ‘Any slave taking refuge on board any ship, 8 whatever its flag, shall ipso facto be free’. The ILC commented of this provision: ‘The General Act of Brussels of 2 July 1890 stipulates that any slave taking refuge on board a warship or a merchant ship shall be free. The Commission has broadened the wording so as not to exclude government ships other than warships.’22

Article 100 Duty to cooperate in the repression of piracy All States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State. Bibliography: Robin Churchill, Piracy Provisions of the UN Convention on the Law of the Sea, in: Panos Koutrakos/ Achilles Skordas (eds.), The Law and Practice of Piracy at Sea: European and International Perspectives (2014), 9–32; Robin Geiß/Anna Petrig, Piracy and Armed Robbery at Sea: The Legal Framework for Counter-Piracy Operations in Somalia and the Gulf of Aden (2011); Gilbert Gidel, Le droit international public de la mer: le temps de paix, vol. I (1932); Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (2009); Douglas Guilfoyle, Prosecuting Somali Pirates: A Critical Evaluation of the Options, JICJ 10 (2012), 767–796; Eugene Kontorovich, The Piracy Analogy: Modern Universal Jurisdiction’s Hollow Foundation, Harvard ILJ 45 (2004), 183–237; Laurent Lucchini/ Michel Voelckel, Droit de la mer, vol. II (1996); Myres S. McDougal/William T. Burke, The Public Order of the Oceans (1962); Daniel P. O’Connell, The International Law of the Sea, vol. II (1984); Alfred P. Rubin, The Law of Piracy (2nd edn. 1998); Ivan Shearer, Piracy, MPEPIL, available at: http://www.mpepil.com; Philip de Souza, Piracy in the Graeco-Roman World (2002); Helmut Tuerk, Combating Piracy: New Approaches to an Ancient Issue, in: Lilian del Castillo (ed.), Law of the Sea, From Grotius to the International Tribunal for the Law of the Sea (2014) Documents: ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12; League of Nations Committee of Experts for the Progressive Codification of International Law: Questionnaire No. 6: Piracy, AJIL 20, No. 3 Suppl. (1926), 228–229; SC, Statement by the President of the Security Council, UN Doc. S/PRST/2010/16 (2010); SC Res. 1814 of 15 May 2008; SC Res. 1816 of 2 June 2008; SC Res. 1838 of 7 October 2008; SC Res. 1846 of 2 December 2008; SC Res. 1851 of 16 December 2008; SC Res. 1897 of 30 November 2009; SC Res. 1918 of 27 April 2010; SC Res. 1950 of 23 November 2010; SC Res. 1976 of 11 April 2011; SC Res 2020 of 22 November 2011; SC Res. 2077 of 21 November 2012; SC Res. 2125 of 18 November 2013; SC Res. 2184 of 12 November 2014; SC Res. 2446 of 10 November 2015; UNSG, Report of the Secretary-General on the Situation with Respect to Piracy and Armed Robbery at Sea off the Coast of Somalia, UN Doc. S/2015/776 (2015) Cases: In re Piracy Jure Gentium [1934] AC 586 (UK); United States v. Klintock, 18 U.S. (5 Wheaton) 144 (1820) 20 21 22

Nordquist/Nandan/Rosenne (note 3), 181. Art. 3 (1) Supplementary Anti-Slavery Convention (123 parties at 15 January 2016). ILC Law of the Sea Articles with Commentaries (note 1), 27 (Art. 37).

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Part VII. High seas Contents

I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘All States shall cooperate’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘on the high seas or in any place outside the jurisdiction of any State’ . . . . . . . . .

1 4 8 8 9

I. Purpose and Function 1

Piracy is the original case of universal jurisdiction in international law,1 with all States having extra-territorial powers to act to suppress and punish piracy in areas outside the territory and territorial sea of any State. The logical corollary of this exceptional enforcement jurisdiction, an exception to the ordinarily exclusive jurisdiction of the flag State (� Art. 92 (1)), is that each State also has prescriptive and adjudicative jurisdiction over the offence. 2 However, while it has long been acknowledged that all States have a jurisdiction to repress piracy, there is relatively little doctrinal evidence or State practice to suggest they felt legally bound to do so prior to the conclusion of the 1958 Geneva Convention on the High Seas (High Seas Convention). The commentaries to the International Law Commission (ILC) Draft Articles concerning the Law of the Sea, on which the High Seas Convention provision were based, shed no light on the purpose of Art. 100. The presence of such an obligation might be thought to be intended to make the other provisions on piracy more effective (see � Arts. 101–105; Art. 110). This, however, seems unlikely as a duty to cooperate in repression does not necessarily imply a duty to capture and prosecute pirates. Contemporary State practice shows that States are more frequently willing to protect shipping from pirates than to capture and prosecute pirates themselves. 3 As the ILC said, presumably having in mind the discretion imported by the words ‘to the fullest extent possible’: ‘Any State having an opportunity of taking measures against piracy, and neglecting to do so, would be failing in a duty laid upon it by international law. Obviously, the State must be allowed a certain latitude as to the measures it should take to this end in any individual case.’4

2

Piracy is defined in Art. 101. The basis of the State power to repress piracy as an exception to flag State jurisdiction is contentious. Some held that this jurisdiction followed from the ‘denationalisation’ of pirates and their vessels. 5 As hostis humani generis (an enemy of all mankind) the pirate was presumed to have repudiated all ‘state allegiance’. 6 The theory has been widely rejected.7 ‘Denationalisation’ is clearly not the jurisdictional rationale under Art. 104, which provides that a pirate vessel ‘may retain [or lose] its nationality’ according to the flag State’s national law. The better rationale is that the exclusive jurisdiction of flag States is excluded as piracy endangers a common interest of all states in high-seas freedoms of navigation and trade. 8 It would be difficult for any one State 1 Ivan Shearer, Piracy, MPEPIL, para. 1, available at: http://www.mpepil.com; Eugene Kontorovich, The Piracy Analogy: Modern Universal Jurisdiction’s Hollow Foundation, Harv. Int’l L.J. 45 (2004), 183–237. 2 In re Piracy Jure Gentium [1934] AC 586, 588–589 (UK); United States v. Klintock, 18 U.S. (5 Wheaton) 144 (1820), 152. 3 Douglas Guilfoyle, Prosecuting Somali Pirates: A Critical Evaluation of the Options, JICJ 10 (2012), 767, 769–770 and 775. 4 ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12, 27 (Art. 38). 5 Gilbert Gidel, Le droit international public de la mer: le temps de paix, vol. I (1932), 331–332; Harvard Research in International Law, Draft Convention on Piracy, AJIL 26, No.1 Suppl. (1932), 739, 825 et seq., and ibid., 758. 6 Harvard Draft Piracy Convention (note 5), 781, 823, cf. 817–818; cf. Daniel P. O’Connell, The International Law of the Sea, vol. II (1984), 970. 7 Gidel (note 5), 331. 8 Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 209; Myres McDougal/William Burke, The Public Order of the Oceans (1962), 808.

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to apprehend pirates otherwise and would require the fortuitous presence of a warship of the same flag as the pirate vessel in the same high seas area. The reference in Art. 100 to piracy occurring on the ‘high seas’ may be misleading. Art. 86, 3 prima facie excludes the exclusive economic zone (EEZ) from being part of the high seas, which might suggest that universal jurisdiction over piracy is excluded therein. However, Art. 58 (2) provides that ‘Articles 88 to 115 … apply to the exclusive economic zone in so far as they are not incompatible with’ the coastal State’s sovereign rights and jurisdiction in the EEZ (see � Art. 56). Thus the provisions of the high seas regime, including all provisions on piracy, have application to the EEZ9 and therefore the law of piracy applies to all such attacks outside territorial waters. If, however, a government vessel acts to suppress piracy in the EEZ of another State, it must act with ‘due regard’ for the coastal State’s rights and interests (� Art 58 (3)).10 The term ‘armed robbery at sea’ is usually used by the International Maritime Organization (IMO) (and more recently by the UN Security Council) to refer to acts of violence against shipping within the territorial sea or in ports, even if no ‘robbery’ occurs.11

II. Historical Background Contrary to popular belief, the (current) international law applicable to piracy is not of 4 ancient origin. Certainly, references to piracy in classical Graeco-Roman writings date to at least 400 BC. It was thus said of King Minos of Crete: ‘It is likely he cleared the sea of piracy as far as he was able, to improve his revenues’.12 Famous historical episodes of piracy include the Barbary Corsairs and piracy in the Caribbean in the 16th to early 19th centuries. However, the term ‘piracy’ only acquired some settled legal meaning relatively recently, the word historically often being used simply to denounce the maritime violence of one’s political enemies, whether lawful or not.13 The law of piracy as stated in UNCLOS is of twentieth century origin. The complete suite 5 of articles dealing with piracy in UNCLOS (� Arts. 100–107; Art. 110) follow the drafting of the equivalent provisions of the 1958 Geneva Convention on the High Seas (High Seas Convention) (Arts. 14–22) very closely. Indeed, the High Seas Convention provisions were adopted in UNCLOS with little dissent or debate.14 As SHEARER notes: ‘[p]iracy received its first comprehensive definition […] in Art. 15 Geneva Convention on the High Seas of 1958 […]. That definition, and the ancillary provisions relating to piracy in Arts 14 and 16–21, were based on the preparatory work of the United Nations International Law Commission [in 1950–1956] […] which, in turn, drew on the Draft Convention on Piracy prepared by the Harvard Research in International Law published in 1932.’15 9

See e. g.: Laurent Lucchini/Michel Voelckel, Droit de la mer, vol. II (2) (1996), 158–159, 165. Note unsuccessful attempts to include in UNCLOS a requirement that a State acting against pirate craft in an EEZ notify the coastal State ‘and cooperate with it’: Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995), 214. 11 See the IMO circular series ‘Reports on act Piracy and Armed Robbery Against Ships’, published as IMO Doc. MSC/4 available at: http://www.imo.org/OurWork/Security/SecDocs/Pages/Maritime-Security.aspx (last visited on 12 January 2016); and, e. g., preambular paragraph 2, SC Res 2020 of 22 November 2011. Cf. also Art. 1 (2)(a) Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (the definition of ‘armed robbery against ships’ includes acts against a single ship, and need not involve robbery). 12 Philip de Souza, Piracy in the Graeco-Roman World (2002), 15 (quoting Thucydides 1.4). 13 See Harvard Draft Piracy Convention (note 5), 796, 806–807. 14 References to piracy in the UNCLOS III Official Records are sparse. See, uniquely, Cambodia’s suggestion that the piracy provisions of the Geneva Convention 1958 were a ‘dead letter’ and did not need inclusion: UNCLOS III, 38th Plenary Meeting, UN Doc. A/CONF.62/SR.38 (1974), OR I, 162 (para. 53). The word is usually used to describe illegal or unregulated resource exploitation, see e. g. UNCLOS III, 35th Plenary Meeting, UN Doc. A/ CONF.62/SR.35 (1974), 146 (para. 42); UNCLOS III, 31st Plenary Meeting, UN Doc. A/CONF.62/C.2/SR.31 (1974), 236 (para. 61); UNCLOS III, 45th Plenary Meeting, UN Doc. A/CONF.62/C.2/SR.45 (1974), 299 (para. 11). 15 Shearer (note 1), para. 12. 10

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Part VII. High seas

Indeed, the Harvard Research further drew on work done by AMBASSADOR MATSUDA in 1926 for the League of Nations Committee of Experts project on codification of international law.16 What is generally not appreciated is that the drafting proposals of 1926, 1932 and 1950–6, which culminated in the High Seas Convention provisions, were not, realistically, codification efforts. This is for the simple reason that the source materials on which they had to rely (national legislation and court decisions, State practice, the writings of jurists) were so diverse and contradictory as to make codification impossible.17 MATSUDA provided only very limited explanation of his drafting choices in 1926 and appears to have approached the question without detailed historical research. The work of the Harvard Researchers has been accurately described as ‘frankly non-codifying but de lege ferenda’ and the work of the ILC as ‘legislative’.18 The point is further made by reference to the historical controversy over the definition of the offence of piracy itself.19 6 Nonetheless, following this ‘codification’ work and its widespread acceptance, including the piracy provisions’ re-enactment in successive treaties, the piracy provisions of UNCLOS are now taken to reflect customary international law.20 That said, the UNCLOS provisions are not necessary exhaustive of custom in that Art. 105 refers only to the adjudicative jurisdiction of the courts of the flag State of a warship which captures pirates. However, it is generally accepted that customary international law grants universal jurisdiction to all States to prosecute piracy suspects, irrespective of whether a warship of their nationality captured them,21 and that UNCLOS has not abrogated this power.22 7 In the period 2008–2013 piracy off the coast of Somalia was a particular cause of concern, and was (and continues to be) treated in numerous United Nations Security Council resolutions.23 These invariably affirmed that the relevant law is that which is set out in UNCLOS,24 typically stating that the Security Council affirms that: ‘that international law, as reflected in the United Nations Convention on the Law of the Sea of 10 December 1982 …, sets out the legal framework applicable to combating piracy and armed robbery at sea, as well as other ocean activities.’ 25

This appears an unequivocal assertion that UNCLOS now reflects customary law.

16 League of Nations Committee of Experts for the Progressive Codification of International Law: Questionnaire No. 6: Piracy, AJIL 20, No. 3 Suppl. (1926), 228–229. 17 Alfred P. Rubin, The Law of Piracy (2nd edn. 1998), 331–372. 18 Ibid., 353. 19 See Guilfoyle on Art. 101 MN 3. 20 Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (2009), 31–32; Shearer (note 1), paras. 3 and 13; contra Rubin (note 17), 331–372. See further Guilfoyle on Art. 105 MN 4. Note also the preamble to Geneva Convention 1958 (stating that the parties drafted the Convention ‘[d]esiring to codify the rules of international law relating to the high seas’). 21 See further Guilfoyle on Art. 105 MN 9. 22 Robin Geiß/Anna Petrig, Piracy and Armed Robbery at Sea: The Legal Framework for Counter-Piracy Operations in Somalia and the Gulf of Aden (2011), 149–151. 23 SC Res. 1814 of 15 May 2008, SC Res. 1816 of 2 June 2008, SC Res. 1838 of 7 October 2008, SC Res. 1846 of 2 December 2008, SC Res. 1851 of 16 December 2008, SC Res. 1897 of 30 November 2009, SC Res. 1918 of 27 April 2010; SC Res. 1950 of 23 November 2010, SC Res. 1976 of 11 April 2011; SC Res 2020 of 22 November 2011, SC Res. 2077 of 21 November 2012, SC Res. 2125 of 18 November 2013, SC Res. 2184 of 12 November 2014, SC Res. 2446 of 10 November 2015, and Statement by the President of the Security Council, UN Doc. S/ PRST/2010/16 (2010). On the decline of Somali piracy see: UNSG, Report of the Secretary-General on the Situation with Respect to Piracy and Armed Robbery at Sea off the Coast of Somalia, UN Doc. S/2015/776 (2015), para 3. 24 However, the SC has noted that acts constituting piracy could also be covered by offences under Art. 3 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation. See e. g.: thirteenth preambular paragraph, SC Res 2020 of 22 November 2011; Geiss/Petrig (note 20), 153–165. Somali piracy, based on ransoming hostages, may also violate Art. 1 International Convention Against the Taking of Hostages, 17 December 1979, UNTS 1316, 205. 25 For example seventh preambular paragraph, SC Res. 2020 of 22 November 2011.

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Art. 101

Definition of piracy

III. Elements 1. ‘All States shall cooperate’ State practice indicates that States may seek to suppress piracy by means other than 8 capturing and prosecuting them, such as through naval patrols designed to ‘deter and disrupt’ pirate attacks.26 This duty does not expressly require that States have an adequate national criminal law addressing piracy; many States have lacked such laws historically and many continue to do so.27 Nor does the duty to cooperate require the prosecution of suspect pirates. The power granted to prosecute pirates under UNCLOS is permissive, not mandatory (� Art. 105).28

2. ‘on the high seas or in any place outside the jurisdiction of any State’ Acts of piracy as defined in Art. 101(a) can only be committed in places outside the 9 territorial sovereignty of any State:29 criminal acts within a territorial sea, or internal waters or within State territory are primarily a matter for that territorial State. 30 The reference to ‘other place[s] outside the jurisdiction of any State’ was included in order 10 to cover acts ‘committed by a ship or aircraft on an island constituting terra nullius or on the shores of an unoccupied territory.’31 In 1980 and 1982 at UNCLOS III Peru proposed the deletion of these words as unnecessary, given that by virtue of Art. 58 (2) the duty clearly applied to the exclusive economic zone (EEZ) and thus areas within State jurisdiction. 32 As the Peruvian proposal was rejected it might be inferred that the Conference considered the terra nullius argument still had some merit (or considered the issue insufficiently serious to merit the amendment).33

Article 101 Definition of piracy 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; (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State; 26

See e. g. Geiss/Petrig (note 20), 20, 23, 25, 44. Harvard Draft Piracy Convention (note 5), 755–756, 760; Lucchini/Voelckel (note 9), 158–159; Preamble to SC Res. 1950 of 23 November 2010. 28 Arguing that there is a duty to prosecute (or a limited discretion not to): Helmut Tuerk, Combating Piracy: New Approaches to an Ancient Issue, in; Lilian del Castillo (ed.), Law of the Sea, From Grotius to the International Tribunal for the Law of the Sea (2014), 472. 29 See, however, Guilfoyle on Art. 101 MN 15–18 for the ambiguity as to whether this geographic limitation applies to all acts which may be prosecuted as ‘piracy’. 30 Gidel (note 5), 310–314. 31 ILC Law of the Sea Articles with Commentaries (note 4), 282 (Art. 39). 32 Nordquist/Nandan/Rosenne (note 10), 183–184. See the documents reproduced in: Renate Platzo ¨ der (ed.), Third United Nations Conference on the Law of the Sea: Documents, vol. V (1984), 66, 69 and 73. 33 For more on this point, see Guilfoyle on Art. 105 MN 5. See also: Robin Churchill, Piracy Provisions of the UN Convention on the Law of the Sea, in: Panos Koutrakos/Achilles Skordas (eds.) The Law and Practice of Piracy at Sea: European and International Perspectives (2014), 20. 27

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(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). Bibliography: Jonathan Bellish, A High Seas Requirement for Inciters and Intentional Facilitators of Piracy Jure Gentium and Its (Lack of) Implications for Impunity, San Diego ILJ 15 (2013), 115–162; Barry Hart Dubner/ Claudia Pastorius, On the Ninth Circuit’s New Definition of Piracy: Japanese Whalers v the Sea Shepherd: Who are the Real Pirates (i. e. Plunderers)?, Journal of Maritime Law and Commerce 45 (2015), 415–443; Robin Geiß/Anna Petrig, Piracy and Armed Robbery at Sea: The Legal Framework for Counter-Piracy Operations in Somalia and the Gulf of Aden (2011); Gilbert Gidel, Le droit international public de la mer: le temps de paix, vol. I (1932); Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (2009); Douglas Guilfoyle, Counter-Piracy Law Enforcement and Human Rights, ICLQ 59 (2010), 141–169; Douglas Guilfoyle, Piracy and Terrorism in: Panos Koutrakos/ Achilles Skordas (eds.), The Law and Practice of Piracy at Sea: European and International Perspectives (2013), 33– 52; Hersch Lauterpacht, Oppenheim’s International Law (5th edn. 1937); Andrew Murdoch, Recent Legal Issues and Problems Relating to Acts of Piracy of Somalia in: Clive R. Symmons (ed.), Selected Contemporary Issues in the Law of the Sea (2011), 139–168; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995); Myres S. McDougal/William T. Burke, The Public Order of the Oceans (1962); Joel Prentiss Bishop, New Commentaries on the Criminal Law, vol. I (8th edn. 1892); Joel Prentiss Bishop, New Commentaries on the Criminal Law, vol. II (8th edn. 1892); Alfred P. Rubin, The Law of Piracy (2nd edn. 1998); Yoshifumi Tanaka, The International Law of the Sea (2nd edn. 2016) Documents: ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45; ILC, Summary Records of the Meetings of the 7th Session, ILC Yearbook (1955), vol. I; ILC, Comments by Governments on the Provisional Articles Concerning the Re´gime of the High Seas and the Draft Articles on the Re´gime of the Territorial Sea Adopted by the International Law Commission at its Seventh Session, UN Doc. A/CN.4/99 and Add.1-9 (1956), reproduced in: ILC Yearbook (1956), vol. II; IMO, Reports on Act of Piracy and Armed Robbery Against Ships, IMO Doc. MSC.4/ Circ.182 (2012); IMO, Piracy: Elements of National Legislation Pursuant to the United Nations Convention on the Law of the Sea, 1982, Submitted by the Division for Ocean Affairs and Law of the Sea (UN-DOALOS), IMO Doc. LEG 98/8/3 (2001); League of Nations Committee of Experts for the Progressive Codification of International Law: Questionnaire No. 6: Piracy, AJIL 20, No. 3 Suppl. (1926); SC Res. 1976 of 11 April 2011 Cases: Hof van Cassatie van Belgie¨/Cour de cassation de Belgique (Court of Cassation of Belgium), Castle John and Nederlandse Stichting Sirius v. NV Mabeco and NV Parfin, 19 December 1986, ILR 77 (1988), 537; In re Piracy Jure Gentium [1934] AC 586 (UK); Institute of Cetacean Research v. Sea Shepherd Conservation Society, 725 F 3 d 940 (2013), US Court of Appeals (9th Circuit), 944.; United States v. Ali, Case No. 12-3056, US Court of Appeals, District of Columbia Circuit, 11 June 2013.; United States v. Ali, Criminal Case No. 11-0106, Memorandum Opinion of 13 July 2012, 885 F.Supp. 2 d 17 (2012); United States v. Palmer, 16 U.S. 610 (1818); United States v. Smith, 18 U.S. 153 (1820) Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘any illegal acts of violence or detention, or any act of depredation’. . . . . . . . . . . . 2. ‘committed for private ends’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘on the high seas’ or ‘in a place outside the jurisdiction of any State’ . . . . . . . . . . 4. ‘by the crew or the passengers of a private ship or […] aircraft’ and directed ‘against another ship or aircraft’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. ‘any act of voluntary participation in the operation of a ship’ . . . . . . . . . . . . . . . . . . 6. ‘any act of inciting or intentionally facilitating an act described in subparagraph (a) or (b)’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 5 5 7 11 12 15 16

I. Purpose and Function 1

The purpose of the present article is to provide a general definition of piracy at international law. Indeed, Art. 101 has been accepted as a statement of customary international law, though not necessarily an exhaustive one, by the international community.1 It is notable that 1

See Guilfoyle on Art. 100 MN 6.

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unlike most terms defined in the Convention, the definition is not limited to being one only for the purposes of ‘this article’, ‘this Part’ or ‘this Convention’.2 In terms of its function within the Convention, any act which may be defined as piracy 2 under Art. 101 triggers the rights and duties of states under other relevant articles in Part VII, including the Art. 100 duty to cooperate, Art. 105 powers of seizure and the Art. 110 right of visit. By virtue of Art. 58 (2) the present article applies to activities conducted the exclusive economic zone (EEZ).3

II. Historical Background Accurately defining piracy for the purposes of public international law has, historically, 3 proven an exceptionally difficult task due to diverse and contradictory source material. One set of codifiers were thus moved to state that: ‘An investigator finds that instead of a single relatively simple problem [defining piracy], there are a series of difficult problems which have occasioned [at different times] a great diversity of professional opinion.’4

Historical controversies included: the geographical scope of the offence; whether politically motivated acts could be piracy; and whether States could commit piracy. These are discussed below in relation to the relevant elements. In general terms, early definitions of piracy stressed that it was simply robbery on the high seas without letters of marque or other State sanction.5 As LAUTERPACHT put it: ‘[p]iracy in its original and strict meaning is every unauthorised act of violence committed by a private vessel on the open sea against another vessel with intent to plunder (animo furandi).’6 LAUTERPACHT went on to observe that this approach was less than entirely accurate as ‘cases […] not covered by this narrow definition’ were considered piratical, including ‘unauthorised acts of violence, such as murder […] committed on the open sea without intent to plunder’.7 However, once the narrow definition was rejected, consensus on a wider definition was hard to obtain. The wording of Art. 101 follows closely Art. 15 of the 1958 Geneva Convention on the 4 High Seas (High Seas Convention). The definition contained in the High Seas Convention in turn follows very closely that of the International Law Commission (ILC) Articles concerning the Law of the Sea of 1956.8 The ILC drew heavily from the Harvard Research project of 1932, which in turn relied in part on a League of Nations codification effort of 1926. These sources are discussed below where relevant.9

2 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995), 200. See e. g.: Arts. 1 (1), 10 (2), 29, 46, 76 (4), 109 (2), 122, 124 (1) using ‘for the purposes of this Convention’; Art. 221 (2) and Art. 5 (5) of Annex III using ‘this Article’; Arts. 70 (2), 77 (4), 133 using ‘this Part’. 3 See: Guilfoyle on Art. 100 MN 3; infra MN 13–15. 4 Harvard Research in International Law, Draft Convention on Piracy, AJIL 26, No. 1 Suppl. (1932), 739, 764. 5 League of Nations Committee of Experts for the Progressive Codification of International Law: Questionnaire No. 6: Piracy, AJIL 20, No. 3 Suppl. (1926), 222 et seq. 6 Hersch Lauterpacht, Oppenheim’s International Law (5th ed. 1937), 486. 7 Ibid. 8 ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12, 28 (Art. 39). 9 For a more detailed account of the twentieth century efforts to codify piracy, see Guilfoyle on Art. 100 MN 5–7.

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III. Elements 1. ‘any illegal acts of violence or detention, or any act of depredation’ Under Art. 101 (a), piracy consists of acts of violence, detention and depredation (the latter usually being defined as plunder, pillage or robbery).10 Violence alone is sufficient: no robbery need be intended.11 Some ambiguity was introduced by the qualification ‘illegal’, inserted into the earlier Harvard Draft Convention by the ILC.12 The best view is either that this serves to emphasize that the act must ‘be dissociated from a lawful authority’; or is left to the national law of the prosecuting State (� Art. 105).13 On either view the qualification is redundant. Despite the reference to ‘acts’, a single prohibited act constitutes piracy. 14 6 The term ‘armed robbery at sea’ is usually used by the International Maritime Organization (and more recently by the UN Security Council) to refer to acts of violence against shipping within the territorial sea or in ports, even if no ‘robbery’ occurs. 15 5

2. ‘committed for private ends’ 7

A key controversy in interpreting UNCLOS has been whether the words ‘for private ends’ exclude politically motivated violence from being piracy. The words ‘for private ends’ have a complex and contested history in the definition of piracy, but do not enjoy a particularly long pedigree.16 Their earliest use in any textbook definition in English appears to date to 1892, where they were used in the phrase ‘for gain or other private ends of the doers’ seemingly as a synonym for intent to plunder or rob.17 No earlier sources or case law use the term nor any meaningful equivalent.18 The phrase appears, without any explanation of its origin, in the League of Nations Committee of Experts Draft Provisions for the Suppression of Piracy of 1926.19 Art. 1 of the League’s Draft Provisions provided: ‘Piracy occurs only on the high sea and consists in the commission for private ends of depredations upon property or acts of violence against persons. It is not required […] that [such] acts should be committed for the purpose of gain, but acts committed with a purely political object will not be regarded as constituting piracy.’

The meaning of this provision, however, is not obvious on its face. The words ‘purely political object’ were intended to be construed narrowly. As the Chairman of the League Committee put it (in an uncontested summation of the position of the drafter): 10

For example Oxford English Dictionary (2nd edn. 1989). Gilbert Gidel, Le droit international public de la mer: le temps de paix, vol. I (1932), 309; In re Piracy Jure Gentium [1934] AC 586, 594 (UK); Alfred P. Rubin, The Law of Piracy (2nd edn. 1998), 355. 12 Myres McDougal/William Burke, The Public Order of the Oceans (1962), 811; Rubin (note 8), 366–367. 13 Nordquist/Nandan/Rosenne (note 2), 201. 14 Robin Geiß/Anna Petrig, Piracy and Armed Robbery at Sea: The Legal Framework for Counter-Piracy Operations in Somalia and the Gulf of Aden (2011), 60. 15 See IMO, Reports on Act of Piracy and Armed Robbery Against Ships, IMO Doc. MSC.4/Circ.182 (2012), available at: http://www.imo.org/blast/blastDataHelper.asp?data_id=31077&filename=182.pdf and e. g., preambular paragraph 2 SC Res 2020 of 22 November 2011. Compare Art. 1 (2)(a), Regional Cooperation Agreement on Combating Piracy and Armed Robbery Against Ships in Asia (the definition of ‘armed robbery against ships’ includes acts against a single ship, and need not involve robbery). 16 See generally Douglas Guilfoyle, Piracy and Terrorism, in: Panos Koutrakos/Achilles Skordas (eds.), The Law and Practice of Piracy at Sea: European and International Perspectives (2013), 33–52. 17 See Joel Prentiss Bishop, New Commentaries on the Criminal Law (8th edn. 1892), vol. I, 339, § 553 and vol. II, 617, § 1058. The phrase does not appear in previous editions (under different titles). The author cites two authorities for his definition: United States v. Palmer, 16 U.S. 610 (1818); and United States v. Terrell, Hemp 411. The former, at least, does not use the phrase ‘for private ends’. The latter has not been located by the present author. 18 The copious review of classical authorities in the eighteen-page footnote in United States v. Smith, 18 U.S. 153 (1820), 163–180 does not contain the English phrase or any equivalent in French or Latin. The quotes tend to focus on either the lack of state sanction or intention to plunder (depredendi causa, pour piller, etc.). 19 League of Nations Committee of Experts (note 3), 228–229. 11

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‘In the general case, whether the crime of piracy has been committed follows from the character of the acts. If acts of violence or depredation are committed, there is piracy, regardless of the motives for those acts. Nevertheless, the rapporteur has admitted an exception for acts committed for a purpose which is political and solely political.’20

The concrete case that this exception was designed to cover was a particular historical difficulty: the status of insurgencies in civil wars that attacked foreign shipping on the high seas. Art. 4 of the League’s Draft Provisions thus stated: ‘Insurgents committing acts of the kind mentioned in Article 1 must be considered as pirates unless such acts are inspired by purely political motives.’21 In case law at the time insurgent forces in a civil war could take to the seas to attack vessels of their own nationality (or of the government they sought to overthrow) and expect to be treated as belligerents, not pirates. 22 Such acts might be considered ‘purely political’. Where insurgents attacked foreign shipping, they risked prosecution as pirates. The 1932 Harvard Research definition of piracy also adopted the words ‘for private ends’ 8 to exclude certain cases from being piracy. Despite the drafters acknowledging that ‘[s]ome writers assert that such illegal attacks on foreign commerce [on the high seas] by unrecognized revolutionaries are piracies in the international law sense; and [that] there is even judicial authority to this effect’

they preferred the view that such cases were governed by a special rule of the laws of war, not the law of piracy.23 Nonetheless, it is clear that their use of the words ‘for private ends’ was principally intended to exclude such cases from being covered by the definition of piracy and was not necessarily intended to have a wider effect. The ILC took the words ‘for private ends’ straight from the Harvard Research into its own 9 Articles concerning the Law of the Sea, but its commentaries to the articles contain no explanation of the reasons for including the term or its intended meaning.24 The ILC rapporteur FRANÇOIS, in speaking to his initial draft, made the point that requiring intention to rob (animo furandi) would overly narrow the definition, and he appeared to endorse the Harvard Research position that ‘it seems best to confine the common jurisdiction [over piracy] to offenders acting for private ends only’, thus excluding cases involving government warships or civil war insurgencies.25 In ILC debate on the draft article, some members of the Commission took the view that the words ‘for private ends only’ would be unduly narrowing, but appeared to have in mind that the definition should include attacks by State vessels. 26 This view did not prevail.27 Despite this history, it is commonly held that the requirement piracy be committed for 10 ‘private ends’ means that any politically motivated acts cannot be piracy. 28 An alternative view ‘is that any act of violence not sanctioned by State authority is one for “private ends”, 20 Minutes of the League of Nations Committee of Experts for the Progressive Codification of International Law, Second Session, 14th Meeting, 20 January 1926, reproduced in: Shabtai Rosenne, League of Nations Committee of Experts for the Progressive Codification of International Law (1925–1928), vol. 1 (1972), 124. Author’s translation and emphasis (‘D’une manie`re ge´ne´rale, c’est d’apre`s le caracte`re des actes que l’on peut de´terminer le crime de piraterie. Si des actes de de´pre´dation ou de violence sont commis, il y a piraterie, quel que soit le motif de ces actes. Toutefois, le rapporteur a admis une exception pour les actes commis dans un dessein politique et uniquement politique’). 21 See League of Nations Piracy Questionnaire (note 4), 228. 22 Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (2009), 33–37. 23 Harvard Draft Piracy Convention (note 2), 857 and see also 786; see further Guilfoyle (note 13). 24 ILC Law of the Sea Articles with Commentaries (note 6), 28 (Art. 39). 25 ILC, Summary Records of the Meetings of the 7th Session, ILC Yearbook (1955), vol. I, 40–41. 26 Ibid., 42–43 (comments of Mr. Amado and Mr. Krylov). 27 See further Guilfoyle on Art. 102 MN 3–7. 28 McDougal/Burke (note 9), 822. See further Barry Hart Dubner/Claudia Pastorius, On the Ninth Circuit’s New Definition of Piracy: Japanese Whalers v the Sea Shepherd: Who are the Real Pirates (i. e. Plunderers)?, Journal of Maritime Law and Commerce 45 (2015), 415–443, arguing against the conclusion that violent environmental protest can be piracy in Institute of Cetacean Research v. Sea Shepherd Conservation Society, US Court of Appeals (9th Circuit), 725 F 3 d 940 (2013), 944.

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the correct dichotomy being not “private/political” but “private/public”’.29 It is submitted that this view is more consonant with the history of the codification efforts, which intended only a narrow exception consistent with the idea that: ‘According to international law, piracy consists in sailing the seas for private ends without authorization from the Government of any State with the object of committing depredations upon property or acts of violence against persons.’30

The latter approach is supported by both the Castle John Case and Institute of Cetacean Research v Sea Shepherd in which it was no defence to a charge of piracy that maritime violence was motivated by political (environmental) protest.31 International practice now supports the view that politically motivated violence against civilians is in all circumstances unacceptable, and in the event of ambiguity this should clearly be the preferred interpretation.32 As noted, historically, the private ends requirement existed only to exclude certain acts of rebellion or civil war from being considered piracy (strictly a question of the laws of war).33 The exception should thus be interpreted narrowly.

3. ‘on the high seas’ or ‘in a place outside the jurisdiction of any State’ 11

The reference to ‘other place[s] outside the jurisdiction of any State’ was included in order to cover acts ‘committed by a ship or aircraft on an island constituting terra nullius or on the shores of an unoccupied territory.’34 In such cases, the wording appears to require that a prohibited act be committed by the ‘crew or the passengers of a private ship or a private aircraft’ against ‘a ship, aircraft, persons or property’ which is either ashore or in the internal waters of such a terra nullius island or unoccupied territory. Given the failure to refer to ‘another ship’ (as in Art. 101 (a)(i)), it is conceivable that this provision could bring within the definition of piracy a mutiny of the crew against the master of a vessel in such a place. 35 Whether such events aboard a single vessel would really be ‘outside the jurisdiction of any State’ given the principle of flag State jurisdiction is, perhaps, open to question. The provision appears more naturally intended to cover acts by the crew of one vessel descending from the sea to a terra nullius island to attack those ashore.

4. ‘by the crew or the passengers of a private ship or […] aircraft’ and directed ‘against another ship or aircraft’ 12

Piracy must involve an attack by the crew of one vessel (be it a private ship or aircraft) against another (not necessarily private) vessel or persons or property aboard. This may occur on the high seas or in a place outside the jurisdiction of any State (as discussed above). This definition excludes the internal mutiny of a crew on the high seas, or a vessel’s internal seizure or hijacking by passengers as occurred in the ACHILLE LAURO incident in 1985.36 29 Douglas Guilfoyle, Counter-Piracy Law Enforcement and Human Rights, ICLQ 59 (2010), 141, 143; Geiß/ Petrig (note 11), 61. Note in particular the change in the French text from ‘buts personnels’ in Art. 15 High Seas Convention to ‘fins prive´es’ in Art. 101 UNCLOS. 30 League of Nations Piracy Questionnaire (note 4). Quoted in Harvard Draft Piracy Convention (note 3), 775. 31 Hof van Cassatie van Belgie ¨/Cour de cassation de Belgique (Court of Cassation of Belgium), Castle John and Nederlandse Stichting Sirius v. NV Mabeco and NV Parfin, 19 December 1986, ILR 77 (1988), 537, 540; in Institute of Cetacean Research v. Sea Shepherd Conservation Society, US Court of Appeals (9th Circuit), 725 F 3 d 940 (2013), 944. See further Yoshifumi Tanaka, The International Law of the Sea (2nd edn. 2016), 380–381. 32 Guilfoyle (note 22), 38–40; compare Gidel (note 11), 326. 33 Ibid., 33 and 36–38; Daniel P. O’Connell, The International Law of the Sea, vol. II (1984), 975–976; Gidel (note 11), 320 and 324. See further Guilfoyle on Art. 102. 34 ILC Law of the Sea Articles with Commentaries (note 8), 28 (Art. 39). See further Guilfoyle on Art. 100 MN 10. 35 Nordquist/Nandan/Rosenne (note 2), 201. 36 Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 210; Guilfoyle (note 16), 36; ILC Law of the Sea Articles with Commentaries (note 8), 28 (Art. 39).

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The ILC’s inclusion of aircraft in the definition was intended to ensure that: ‘Acts of piracy 13 can be committed not only by ships on the high seas, but also by aircraft, if such acts are directed against ships on the high seas’. The wording chosen, however, would appear to go further. An attack by an aircraft that is floating on the high seas (such as a sea plane) is covered by Art. 101 (a)(i). However, Art. 101 (a)(ii) covers also an attack by a private aircraft against an ‘aircraft […] in a place outside the jurisdiction of any State’. These words would appear literally to apply to the international airspace over the high seas, though only in cases where a private aircraft attacks another aircraft. Internal seizure or hijacking of an aircraft is covered by specific terrorism suppression conventions.37 The definition refers only to a private vessel being involved in the attack. It does not, 14 therefore, prevent an attack from a private vessel against a State or government vessel from being defined as piracy.

5. ‘any act of voluntary participation in the operation of a ship’ Under Art. 101 (b) it is an offence to commit ‘any act of voluntary participation in the 15 operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft’. This must be read alongside Art. 103, which importantly defines a pirates vessel to include one intended for future use in an act of piracy. A crew thus need not have already committed an act of piracy to be a pirate vessel. The provision thus encompasses both attempted piracy and ‘“piratical roving” prior to an attack’. 38 The inclusion of the word ‘voluntary’ excludes participation under duress.

6. ‘any act of inciting or intentionally facilitating an act described in subparagraph (a) or (b)’ Art. 101 (c) criminalises ‘any act of inciting or of intentionally facilitating’ piracy as 16 defined in Arts. 101 (a) or (b). This could criminalise the acts of those who organise or finance pirate raids,39 including their activities ashore, as the geographical limitations of Art. 101 (a) are not reproduced here.40 It was noted by the Netherlands in 1956 that the ILC’s drafting – in omitting reference to the high seas – would allow this provision to apply elsewhere.41 The ILC did not respond to the suggestion that the drafting be made consistent. A number of commentators have thus taken the view, based on its plain language, that 17 Art. 101 (c) could apply to acts committed ashore.42 This contention is leant some strength by the idea that Art. 101 sets out a general definition of piracy in international law applicable beyond the Convention (as described in para. 1 above). At least one appellate court in the United States has thus held that acts of aiding and abetting piracy need not 37 For example Convention for the Suppression of Unlawful Seizure of Aircraft, 16 December 1970, UNTS 860, 105; Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, 23 September 1971, UNTS 974, 177. 38 McDougal/Burke (note 12), 812. 39 SC Res. 1976 of 11 April 2011, para. 15. 40 See: IMO, Piracy: Elements of National Legislation Pursuant to the United Nations Convention on the Law of the Sea, 1982, Submitted by the Division for Ocean Affairs and Law of the Sea (UN-DOALOS), IMO Doc. LEG 98/8/3 (2001), noting these provisions ‘do not explicitly set forth any particular geographic scope’. 41 ILC, Comments by Governments on the Provisional Articles Concerning the Re ´gime of the High Seas and the Draft Articles on the Re´gime of the Territorial Sea Adopted by the International Law Commission at its Seventh Session, UN Doc. A/CN.4/99 and Add.1-9 (1956), reproduced in: ILC Yearbook (1956), vol. II, 62, 64. 42 Andrew Murdoch, Recent Legal Issues and Problems Relating to Acts of Piracy of Somalia in: Clive R. Symmons (ed.), Selected Contemporary Issues in the Law of the Sea (2011), 139, 157–158; Geiß/Petrig (note 11), 64. Arguing the contrary: Jonathan Bellish’ A High Seas Requirement for Inciters and Intentional Facilitators of Piracy Jure Gentium and Its (Lack of) Implications for Impunity, San Diego ILJ 15 (2013), 115–162.

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occur on the high seas and are subject to universal jurisdiction even when committed on land.43 18 The UN Security Council has expressly recognised: ‘the need to investigate and prosecute not only suspects captured at sea, but also anyone who incites or intentionally facilitates piracy operations, including key figures of criminal networks involved in piracy who illicitly plan, organize, facilitate, or finance and profit from such attacks.’ 44

However, although this uses the language of Art 101(c), it is silent as to the question of geographic scope of the provision.

Article 102 Piracy by a warship, government ship or government aircraft whose crew has mutinied The acts of piracy, as defined in article 101, committed by a warship, government ship or government aircraft whose crew has mutinied and taken control of the ship or aircraft are assimilated to acts committed by a private ship or aircraft. Bibliography: Gilbert Gidel, Le droit international public de la mer: le temps de paix, vol. I (1932), 324; Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (2009); Hersch Lauterpacht, Insurrection et piraterie, RGDIP 46 (1939), 513–549; Alfred P. Rubin, The Law of Piracy (2nd edn. 1998); Ivan Shearer, Piracy, MPEPIL, available at: http://www.mpepil.com Documents: ILC, Summary Records of the Meetings of the 17th Session, ILC Yearbook (1955), vol. I; League of Nations Committee of Experts for the Progressive Codification of International Law: Questionnaire No. 6: Piracy, AJIL 20, No. 3 Suppl. (1926), 228–229; ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4–12 Cases: In re Piracy Jure Gentium [1934] AC 586 (UK); The Ambrose Light, 25 Fed 408 (S.D.N.Y., 1885) (US) Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘crew has mutinied’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. State violence at sea cannot be piracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 4 4 5

I. Purpose and Function 1

This provision reinforces the essential feature of piracy as a ‘crime committed by private individuals not [an act] in performance of a public or authorised duty’.1 By extending the application of the definition of piracy (� Art. 101) to acts by public vessels and aircraft whose crews have mutinied, it makes plain that absent such mutiny public vessels cannot commit piracy. Otherwise, violence against other vessels committed by a warship is a question of State responsibility (and perhaps the laws of armed conflict). 2 43 United States v. Ali, Case No. 12-3056, US Court of Appeals, District of Columbia Circuit, Decided 11 June 2013; overruling United States v. Ali, Criminal Case No. 11-0106, Memorandum Opinion of 13 July 2012, 885 F.Supp. 2 d 17 (2012). 44 SC Res. 1976 of 11 April 2011, preambular para. 5. See most recently: SC Res. 2246 of 10 November 2015, preambular para. 7. 1 ILC, Summary Records of the Meetings of the 17th Session, ILC Yearbook (1955), vol. I, 43, 44 (Sir Gerald Fitzmaurice). 2 Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (2009), 34–35.

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Piracy by a warship

2–6

Art. 102

If piratical acts are committed by a public vessel the crew of which has mutinied the 2 powers in Arts. 105 and 110 are engaged and the immunities ordinarily applying to public vessels (� Art. 95; Art. 96) do not shield it. By virtue of Art. 58 (2), the present article has operation in the exclusive economic zone (EEZ).

II. Historical Background The present article has its origin in the League of Nations Committee of Experts Draft 3 Provisions for the Suppression of Piracy of 1926.3 Such a provision was not included in the Harvard Research Draft Convention on Piracy.4 However, the International Law Commission (ILC) took up the idea in its Articles concerning the Law of the Sea; 5 and the drafting was duly replicated in Art. 16 of the 1958 Geneva Convention on the High Seas, which the present Art. 102 follows closely. The relevant historical debates are discussed in relation to the elements of the present article, below.6

III. Elements 1. ‘crew has mutinied’ Under Art. 102 the crew of State warships, or other government vessels or aircraft, can 4 commit piracy only in cases of mutiny. In such cases the crew are liable to individual punishment as pirates (� Art. 105). Otherwise, as noted, violence against other vessels committed by a warship is a question of State responsibility and, possibly, the laws of armed conflict.

2. State violence at sea cannot be piracy As discussed above, the drafting of the present article makes plain that without mutiny, State 5 violence at sea cannot be piracy. Art. 102, therefore, dispenses with the historical debate over whether acts of illegal violence at sea by States are ‘piracy’.7 Notably, however, there was an historic rule that warships (or other armed vessels) which rebelled against their government in the course of a civil war would not be classed as pirates if confined themselves to attacking the shipping of the government they sought to overthrow.8 This is reflected in UNCLOS in the widely misunderstood requirement that piracy be committed for ‘private ends’.9 The claim that international law once recognised State piracy is weak. 10 Such claims are 6 generally based on the 1937 Nyon Arrangement on Submarine Warfare, 11 drafted during the Spanish Civil War. The Nyon Arrangement’s preamble refers to unrestricted submarine 3 League of Nations Committee of Experts for the Progressive Codification of International Law: Questionnaire No. 6: Piracy, AJIL 20, No. 3 Suppl. (1926), 228–229. Art. 3 of that Draft Provisions reads: ‘Only private ships can commit acts of piracy. Where a warship, after mutiny, cruises on its own account and commits acts of the kind mentioned in Art. 1, it thereby loses its public character’. 4 Harvard Research in International Law, Draft Convention on Piracy, AJIL 26, No. 1 Suppl. (1932), 739, 873. 5 ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4, 8. 6 For further detail on the twentieth century efforts to codify piracy, see Guilfoyle on Art. 100 MN 5–7. 7 See for example, Daniel O’Connell, The International Law of the Sea, vol. II (1984), 971–973; or debate in ILC Summary Records (note 1), 43–44. 8 Gilbert Gidel, Le droit international public de la mer: le temps de paix, vol. I (1932), 324; Hersch Lauterpacht, Insurrection et Piraterie, RGDIP 46 (1939), 518; Alfred P. Rubin, The Law of Piracy (2nd edn. 1998), 197; Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (2009), 34–35; The Ambrose Light, 25 Fed 408 (S.D.N.Y. 1885), 412 (US) (acts of violence by unrecognised belligerents constitute piracy), In re Piracy Jure Gentium [1934] AC 586, 598 (UK). 9 See Guilfoyle on Art. 101 MN 7–10. 10 Guilfoyle (note 8), 37; Ivan Shearer, Piracy, MPEPIL, para. 11, available at: http://www.mpepil.com. 11 Nyon Arrangement on Submarine Warfare, 14 September 1937, LNTS 181, 135.

Guilfoyle

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Art. 103

1–3

Part VII. High seas

warfare which ‘should be justly treated as acts of piracy’ and countered with ‘special collective [defensive] measures’. The operative articles, however, concern only rules of engagement in naval warfare and not criminal liability. The characterisation of the Arrangement as being concerned with, or the acts it covers as, piracy is hard to justify. 12

Article 103 Definition of a pirate ship or aircraft 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. The same applies if the ship or aircraft has been used to commit any such act, so long as it remains under the control of the persons guilty of that act. Bibliography: Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995) Documents: ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘dominant control’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘intended’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 4 4 5

I. Purpose and Function Article 103 defines ‘pirate ship or aircraft’, with consequences for such a vessel under Art. 110 (a ship suspected of piracy may be visited and inspected by a vessel or aircraft on government service) and Art. 105 (providing for law enforcement jurisdiction over a suspected pirate ship or aircraft and persons and property aboard). The present article must also be read alongside Art. 102, providing that a government ship or aircraft cannot commit piracy unless the crew has mutinied. 2 The words ‘pirate ship or aircraft’ further appear in Art. 101 (b) (the offence of voluntary participation in a pirate ship or aircraft) and Art. 104 (providing that pirate ships or aircraft are not per se rendered stateless, see further the commentary to this article). 1

II. Historical Background 3

The provisions of UNCLOS relating to piracy are largely of twentieth century origin and represent progressive development of the law rather than codification of prior law.1 That said, they are now widely accepted as stating customary international law.2 In terms of drafting history the wording of Art. 103 follows closely Art. 17 of the 1958 Geneva Convention on the High Seas 1958, which in turn follows closely that of the ILC Articles concerning the Law of the Sea.3 The present article was not subject to debate at UNCLOS III, suggesting it was generally accepted. 12

Shearer (note 11), para. 11; although see ILC Summary Records (note 1). For a more thorough treatment, see Guilfoyle on Art. 100 MN 4–7. 2 See Guilfoyle on Art. 100 MN 6. 3 ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12, 28 (Art. 41). 1

746

Guilfoyle

Retention or loss of the nationality of a pirate ship or aircraft

1

Art. 104

III. Elements 1. ‘dominant control’ Art. 103 defines a pirate vessel as one under the ‘dominant control’ of persons who ‘(i) 4 intend to commit an act of piracy, or (ii) have actually committed such an act.’ 4 It has been suggested that ‘dominant control’ may mean something less than complete control (the French text refers to ‘controˆlent effectivement’ or ‘effective control’).5 In either case (i) or (ii), ‘[s]uch ships can be considered as pirate ships so long as they remain under the control of the persons who have committed those acts’ or intend to commit them’.6

2. ‘intended’ Importantly, Art. 103 has the effect that the offence of piracy as defined in Art. 101 (b) 5 includes participating in a vessel intended for use in a future pirate attack, even if no such attack has yet been made.7 The powers of visit (� Art. 110) and of arrest and seizure (� Art. 105) should be construed accordingly.

Article 104 Retention or loss of the nationality of a pirate ship or aircraft A ship or aircraft may retain its nationality although it has become a pirate ship or aircraft. The retention or loss of nationality is determined by the law of the State from which such nationality was derived. Bibliography: Gilbert Gidel, Le droit international public de la mer: le temps de paix, vol. I (1932); Herman Meijers, The Nationality of Ships (1967); Daniel P. O’Connell, The International Law of the Sea, vol. II (1984) Documents: ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘A ship or aircraft may retain its nationality’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘the law of the State from which such nationality was derived’ . . . . . . . . . . . . . . . . . .

1 2 4 4 5

I. Purpose and Function Art. 104 provides that, at international law, the nationality of a pirate ship or aircraft is not 1 automatically lost through its commission of acts of piracy. This provision is necessary only to rebut the historical argument that pirate vessels were per se stateless, discussed below. It follows Art. 91 (1) in providing that questions regarding which ships are entitled to the nationality of a given State is a question for the national law of that flag State. 4 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995), 208. 5 Ibid. 6 ILC Law of the Sea Articles with Commentaries (note 3), 28 (Article 41). 7 See further Guilfoyle on Art. 101 MN 15.

Guilfoyle

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Art. 104

2–5

Part VII. High seas

II. Historical Background The provisions of UNCLOS relating to piracy are of twentieth century origin and generally represent progressive development of the law rather than codification of prior law. 1 That said, they are now widely accepted as stating customary international law. 2 In terms of drafting history the wording of Art. 104 follows closely Art. 18 of the 1958 Geneva Convention on the High Seas, which in turn follows closely that of the International Law Commission (ILC) Articles concerning the Law of the Sea.3 3 The ILC noted in its commentaries to the Articles concerning the Law of the Sea that ‘the mere fact that a ship sails without a flag is not sufficient to give it the character of a “pirate” ship.’4 This (entirely correct) observation reflects the occasional conceptual confusion as to the relationship between pirate vessels and vessels without nationality. It was occasionally suggested that pirate vessels, having by their acts repudiated all superior authority, became denationalised and thus stateless.5 Such denationalisation and the consequent lack of a flag State was thought by some to account for the existence of enforcement jurisdiction over pirates on the high seas.6 Denationalisation has now been rejected as the basis of enforcement jurisdiction over pirate vessels.7 However, if one accepts the denationalisation theory it may suggest, conversely, that stateless vessels may be assimilated to pirate craft and both may be subjected to universal enforcement jurisdiction on the high seas. Again, this proposition has been rejected on the basis that international law does not per se prohibit statelessness in the same way it prohibits piracy.8 The status of stateless vessels at international law is further discussed in the commentary to Arts. 92 and 110, but one may observe that UNCLOS only grants quite limited express powers of intervention regarding stateless vessels as opposed to pirate craft.9 2

III. Elements 1. ‘A ship or aircraft may retain its nationality’ 4

As noted above, the effect of the first sentence of Art. 104 is to provide that the nationality of a pirate ship or aircraft is not automatically lost by its acts.

2. ‘the law of the State from which such nationality was derived’ 5

The second sentence of Art. 94 clearly provides that the question of ‘retention or loss of nationality’ is to be governed by the laws of the flag state. This is consistent with the general rule that the nationality of a vessel is principally a question of national law. 10 To the extent that the nationality of a vessel is dependent on a ‘genuine link’, one may conclude that the act 1

For a more thorough treatment, see Guilfoyle on Art. 100 MN 4–7. See Guilfoyle on Art. 100 MN 6. ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12, 29 (Art. 42). 4 Ibid. 5 Daniel P. O’Connell, The International Law of the Sea, vol. II (1984), 970. 6 See Gilbert Gidel, Le droit international public de la mer: le temps de paix, vol. I (1932), 331–332; Harvard Research in International Law, Draft Convention on Piracy, AJIL 26, No. 1 Suppl. (1932), 739, 825 et seq., and ibid., 758; ILC, Memorandum on the Regime on the High Seas, Prepared by the Secretariat, UN Doc. A/CN.4/32 (1950), 1, 5. 7 Gidel (note 5), 331; Harvard Draft Piracy Convention (note 6), 825. 8 Herman Meijers, The Nationality of Ships (1967), 318–321. 9 See Guilfoyle on Art. 92 MN 6–7; Guilfoyle on Art. 110 MN 15. 10 See Guilfoyle on Art. 91 MN 7–11. 2 3

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Art. 105

Seizure of a pirate ship or aircraft

of piracy does not sever that ‘link’ between the vessel and its flag state. 11 Indeed, it might also be considered an abrogation of flag State responsibility to strip nationality from a vessel engaged in illicit activities rather than take more effective penal measures (� Art. 94). It might be thought inconsistent with the duty to cooperate to suppress piracy (� Art. 100), if a State were to relinquish its jurisdiction under national law over vessels of its flag that commit acts of piracy. Nonetheless, Art. 104 appears to contemplate that this could occur. This is consistent with the power of each State to make rules governing the grant of nationality to ships (� Art. 91(1)).

Article 105 Seizure of a pirate ship or aircraft 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. Bibliography: James Crawford, Brownlie’s Principles of Public International Law (8th edn. 2012); Robin Churchill, Piracy Provisions of the UN Convention on the Law of the Sea, in: Panos Koutrakos/Achilles Skordas (eds.), The Law and Practice of Piracy at Sea: European and International Perspectives (2014), 9–32; Douglas Guilfoyle, Counter-Piracy Law Enforcement and Human Rights, ICLQ 59 (2010), 141–169; Robin Geiß/Anna Petrig, Piracy and Armed Robbery at Sea: The Legal Framework for Counter-Piracy Operations in Somalia and the Gulf of Aden (2011); Eugene Kontorovich, ‘A Guanta´namo on the Sea’: The Difficulty of Prosecuting Pirates and Terrorists, Cal. L. Rev. 98 (2010), 243–275; Cameron Moore, The Use of Force, in: Robin Warner/Stuart Kaye (eds.), Routledge Handbook of Maritime Regulation and Enforcement (2016), 27–40; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995); Daniel O’Connell, The International Law of the Sea, vol. II (1984); Bernard H. Oxman, The Antarctic Regime: An Introduction, U. Miami L. Rev. 33 (1978), 285–297; Anna Petrig, Human Rights and Law Enforcement at Sea: Arrest, Detention and Transfer of Piracy Suspects (2014); J. Ashley Roach, Countering Piracy off Somalia: International Law and International Institutions, AJIL 104 (2010), 397–416; Tullio Treves, Piracy, Law of the Sea, and Use of Force: Developments off the Coast of Somalia, EJIL 20 (2009), 399–414 Documents: ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45; SC, Report of the Secretary-General on Specialized Anti-Piracy Courts in Somalia and Other States in the Region, UN Doc. S/2012/50 (2012); SC Res. 2246 of 10 November 2015; SC Res. 2184 of 12 November 2014; SC Res. 2125 of 18 November 2013; SC Res. 2077 of 21 November 2012; SC Res. 2020 of 22 November 2011; SC Res. 1950 of 23 November 2010; SC Res. 1897 of 30 November 2009; SC Res. 1851 of 16 December 2008; SC Res. 1846 of 2 December 2008 Cases: ICJ, Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment of 14 February 2002, ICJ Reports (2002), 3; In re Piracy Jure Gentium [1934] AC 586 (UK); ITLOS, The M/V ‘Saiga’ (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment of 1 July 1999, ITLOS Reports (1999), 10; PCA, Guyana v. Suriname, Award (2008) 47 ILM 166; Rechtbank Rotterdam (District Court of Rotterdam), Cygnus Case (Somali Pirates), 17 June 2010, ILR 145 (2012), 491 (Netherlands); United States v. Klintock, 18 U.S. (5 Wheaton) 144 (1820) Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘Seizure of a pirate ship or aircraft’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘The courts of the State which carried out the seizure may […]’ . . . . . . . . . . . . . . . . 3. ‘action to be taken with regard to the ships, aircraft or property’ . . . . . . . . . . . . . . .

11

1 4 5 5 9 10

Ibid.

Guilfoyle

749

Art. 105

1–4

Part VII. High seas

I. Purpose and Function Art. 105 deals with two matters. First, enforcement jurisdiction: the powers of an interdicting warship (or other government vessels or aircraft as defined in Art. 107) to arrest a pirate vessel (as defined in Art. 103). Second, adjudicative jurisdiction: the powers of courts of that warship’s flag State to determine punishment and the disposition of property. Art. 105 is thus an exception to the general rule in Art. 92 (1) that a vessel on the high seas is subject to the exclusive jurisdiction of its flag State (see also � Art. 110). Indeed, it is the only example of universal extra-territorial enforcement jurisdiction in international law. Universal jurisdiction normally refers to the power of a State to prescribe extra-territorial conduct (prescriptive jurisdiction), or the adjudicative jurisdiction of its courts, in respect of a certain limited category of international offences.1 Only in the case of piracy does universal jurisdiction encompass a State exercising enforcement jurisdiction outside its own territory. 2 As discussed below, Art. 105 does not, however, exclude the pre-existing customary international law jurisdiction of third States to adjudicate piracy cases. 2 The first purpose of Art. 105 is to provide for the universal enforcement jurisdiction all States enjoy over pirate craft on the high seas.3 All States have extra-territorial powers to act to suppress and punish piracy in areas outside the territory and territorial sea of any State (described in Art. 105 as seizure). The logical corollary to this exceptional enforcement jurisdiction, and exception to the ordinarily exclusive jurisdiction of the flag State (� Art. 92 (1)), is that any such State capturing piracy suspects also has prescriptive and adjudicative jurisdiction over the offence (described above as powers of adjudication).4 However, UNCLOS is silent on the question of the universal jurisdiction of States other than a capturing warship to prosecute pirates. This has led some to assert that Art. 105 excludes any State other than that of a capturing warship placing a pirate on trial.5 The proposition is widely rejected;6 in practice States engaged in countering piracy off Somalia (2008 – present) have frequently transferred pirates to States in the region for prosecution, notably Kenya and the Seychelles among others.7 3 By virtue of Art. 58 (2) the present article applies in the exclusive economic zone (EEZ). If, however, a government vessel acts to suppress piracy in an EEZ it must act with ‘due regard’ for the coastal State’s rights and interests (� Art 58 (3)). 8 1

II. Historical Background 4

The provisions of UNCLOS relating to piracy are of twentieth century origin and generally represent progressive development of the law rather than codification of prior law. 9 Irrespective 1 See Robin Geiß/Anna Petrig, Piracy and Armed Robbery at Sea: The Legal Framework for Counter-Piracy Operations in Somalia and the Gulf of Aden (2011), 143, listing piracy, genocide, war crimes and crimes against humanity as uncontroversial examples. 2 Ibid., 144. 3 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995), 215. 4 In re Piracy Jure Gentium [1934] AC 586, 588–589 (UK); US v. Klintock, 18 U.S. (5 Wheaton) 144, 152 (1820). 5 See Eugene Kontorovich, International Legal Responses to Piracy off the Coast of Somalia, ASIL Insights 13 (2009), available at: http://www.asil.org/insights090206.cfm. But see now: Eugene Kontorovich, ‘A Guantanamo on the Sea’: The Difficulty of Prosecuting Pirates and Terrorists, Cal. L. Rev. 98 (2010), 243, 270–272. 6 E.g. Geiß/Petrig (note 1), 149–150; Douglas Guilfoyle, Counter-Piracy Law Enforcement and Human Rights, ICLQ 59 (2010), 141, 144–145. 7 See e. g. SC, Report of the Secretary-General on Specialized Anti-Piracy Courts in Somalia and Other States in the Region, UN Doc. S/2012/50 (2012), 3 (para. 6) and see the table at page 5. 8 Note unsuccessful attempts to include a requirement in UNCLOS that a State acting against pirate craft in an EEZ notify the coastal State ‘and cooperate with it’, Nordquist/Nandan/Rosenne (note 3), 214. 9 For a more thorough treatment, see Guilfoyle on Art. 100 MN 4–7.

750

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Seizure of a pirate ship or aircraft

5–7

Art. 105

of such origins these provisions, including the present article, are now widely accepted as stating customary international law.10 In terms of drafting history, the wording of Art. 105 follows closely follows closely Art. 19 of the 1958 Geneva Convention on the High Seas, which in turn follows closely that of the International Law Commission (ILC) Articles concerning the Law of the Sea.11

III. Elements 1. ‘Seizure of a pirate ship or aircraft’ Art. 105 codifies the power of any warship (or other government vessel meeting the 5 criteria of Art. 107) to exercise law-enforcement jurisdiction over a pirate craft, in places beyond the territorial jurisdiction of any State. Consequently, Art. 105 does not ‘authorize the seizure of a pirate ship or aircraft in territorial waters, archipelagic waters […] or internal waters, even for acts falling within the definition of piracy […] [when] committed on the high seas.’12 Such powers may, however, be exercised in the EEZ under Art. 58 (2). The reference to ‘other place[s] outside the jurisdiction of any State’ was included by the ILC in order to cover acts ‘committed by a ship or aircraft on an island constituting terra nullius or on the shores of an unoccupied territory.’13 Obvious examples of either type of non-State territory would now be hard to come by. For example, the Western Sahara is a non-self governing territory, not a State, but no-one would suggest it is uninhabited or terra nullius. It is perhaps conceivable that there may be very small islands created from time to time by volcanic eruption. Otherwise it could only encompass acts on the shores of the unclaimed sector of Antarctica (sovereign claims over the rest of the landmass are ‘frozen’ but not extinguished by the Antarctic Treaty).14 These powers may also be used against ‘a ship or aircraft taken by piracy and under the 6 control of pirates’: re-taking pirate-held vessels is thus clearly permissible. This grant of lawenforcement jurisdiction carries with it the right to use reasonable force for purposes of seizure and arrest. According to M/V ‘Saiga’ (No. 2), in such maritime law enforcement operations: ‘The normal practice used to stop a ship at sea is first 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 firing 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. Even then, appropriate warning must be issued to the ship and all efforts should be made to ensure that life is not endangered.’ 15

The basic principle involved is thus that: the ‘degree of force used [should] not exceed that 7 reasonably required in the circumstances’.16 It was similarly suggested in the Guyana v. Suriname arbitration that ‘force may be used in law enforcement activities provided that such force is unavoidable, reasonable and necessary’.17 10

See Guilfoyle on Art. 100 MN 6. ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12, 29 (Art. 43). 12 Nordquist/Nandan/Rosenne (note 3), 215. 13 ILC Law of the Sea Articles with Commentaries (note 10), 28 (Art. 39); see Guilfoyle on Art. 100 MN 9–10. 14 Bernard H. Oxman, The Antarctic Regime: An Introduction, U. Miami L. Rev. 33 (1978), 285, 294; Art. 4 Antarctic Treaty, 1 December 1959, UNTS 402, 71. See also: Robin Churchill, Piracy Provisions of the UN Convention on the Law of the Sea, in: Panos Koutrakos/Achilles Skordas (eds.), The Law and Practice of Piracy at Sea: European and International Perspectives (2014), 20. 15 ITLOS, The M/V ‘Saiga’ (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment of 1 July 1999, ITLOS Reports (1999), 10 (para. 156). 16 Ibid., quoting Art. 22 (1)(f) UN Fish Stocks Agreement. The use of force in maritime law enforcement is further discussed in Guilfoyle on Art. 111 MN 11. See further: Cameron Moore, The Use of Force, in: Robin Warner/Stuart Kaye (eds.), Routledge Handbook of Maritime Regulation and Enforcement (2016), 27–40. 17 PCA, Guyana v. Suriname, Award (2008) 47 ILM 166, para. 445. 11

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Art. 105 8

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Notably Art. 105, first sentence, refers only to ‘seiz[ing] a pirate ship or aircraft […] and arrest[ing] the persons and seiz[ing] the property on board’. Questions of the disposition of that property appear reserved to courts under Art. 105, second sentence. The widespread practice of navies disarming suspect Somali pirates in the Gulf of Aden and throwing their weapons into the sea prima facie falls outside the powers granted in Art. 105. 18 However, such actions are now expressly authorised by Security Council Resolutions calling upon States to take action ‘in the fight against piracy’ including by ‘seizures and disposition of […] equipment used [or reasonably suspected of use] in the commission of piracy’. 19

2. ‘The courts of the State which carried out the seizure may […]’ 9

Art. 105 similarly refers exclusively to the powers of the arresting flag State’s courts to adjudicate piracy cases. It is sometimes suggested that this casts doubt on both the permissibility of third States trying a pirate who is subsequently present within their territory, and the legality of pirates being transferred by a seizing State to a third State for trial. 20 It is dubious that UNCLOS has either effect.21 Where a pirate is subsequently found within a State’s territory, the power of its courts to try him or her is generally accepted. 22 The transfer of pirates from a capturing warship to other jurisdictions for trial is also well-attested in State practice.23 For example, the navies of the United Kingdom and US, as well as the EU Naval Force Operation Atalanta, had by January 2012 alone transferred some 143 Somali piracy suspects to Kenya and 70 to Seychelles for prosecution. 24 The criminal law to be applied in all cases will be that of the prosecuting State.25

3. ‘action to be taken with regard to the ships, aircraft or property’ 10

As regards property and vessels taken by piracy, the general principle was said to be pirata non mutat dominium (a pirate does not change the ownership of goods).26 However, if this is a correct statement of the law, Art. 105 creates an exception for the rights of ‘third parties 18

Guilfoyle (note 6), 141. SC Res. 1976 of 11 April 2011, preamble. See also: SC Res. 1846 of 2 December 2008, para. 9; SC Res. 1851 of 16 December 2008, para. 2; SC Res. 1897 of 30 November 2009, para. 3; SC Res. 1950 of 23 November 2010, para. 4; SC Res. 2020 of 22 November 2011, para. 7; SC Res. 2077 of 21 November 2012, para. 10; SC Res. 2125 of 18 November 2013, para. 10; SC Res. 2184 of 12 November 2014, para. 11; and SC Res. 2246 of 10 November 2015, para. 12. 20 Kontorovich, A Guantanamo on the Sea (note 5), 270–271. 21 J. Ashley Roach, Countering Piracy off Somalia: International Law and International Institutions, AJIL 104 (2010), 397, 404–405; Guilfoyle (note 6), 144–145; Tullio Treves, Piracy, Law of the Sea, and Use of Force: Developments Off the Coast of Somalia, EJIL 20 (2009), 399, 402. See further: Anna Petrig, Human Rights and Law Enforcement at Sea: Arrest, Detention and Transfer of Piracy Suspects (2014), 235–237. 22 See ICJ, Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment of 14 February 2002, Separate Opinion of President Guillaume, ICJ Reports (2002), 37, 38, para. 5 and Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, ICJ Reports (2002), 81 para. 61; James Crawford, Brownlie’s Principles of Public International Law (8th edn. 2012), 302; cf. Harvard Research in International Law, Draft Convention on Piracy, AJIL 26, No. 1 Suppl. (1932), 739, 852–856; but note Daniel O’Connell, The International Law of the Sea, vol. II (1984), 977. 23 For example, the Exchange of Letters between the European Union and the Government of Kenya on the Conditions and Modalities for the Transfer of Persons Suspected of Having Committed Acts of Piracy and Detained by the European Union-led Naval Force (EUNAVFOR) and Seized Property in the Possession of EUNAVFOR, from EUNAVFOR to Kenya and for Their Treatment after such Transfer, Official Journal of the European Union (2009), 79/49; Exchange of Letters between the European Union and the Republic of Seychelles on the Conditions and Modalities for the Transfer of Suspected Pirates and Armed Robbers from EUNAVFOR to the Republic of Seychelles and for Their Treatment after such Transfer, Official Journal of the European Union (2009), 315/37; Rechtbank Rotterdam (District Court of Rotterdam), Cygnus Case (Somali Pirates), 17 June 2010, ILR 145 (2012), 491 (Netherlands). 24 Report of the Secretary-General (note 7), 5; and further, see Guilfoyle (note 6), 152. 25 O’Connell (note 21), 967. 26 Ibid., 978. 19

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Guilfoyle

Liability for seizure without adequate grounds

1–3

Art. 106

acting in good faith’, i. e. those who may have unknowingly bought pirated property. O’CONNELL suggests this is not reflective of historic State practice and national legislation. 27 In any event, the ‘second sentence of article 105 implies that the courts of the State which carried out the seizure will apply national law, including, where appropriate, […] rules governing the conflict of laws.’28

Article 106 Liability for seizure without adequate grounds Where the seizure of a ship or aircraft on suspicion of piracy has been effected without adequate grounds, the State making the seizure shall 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. Bibliography: Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (2009); Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995); Philipp Wendel, State Responsibility for Interferences with the Freedom of Navigation in Public International Law (2007) Documents: ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45; SC Res. 2246 of 10 November 2015 Cases: ITLOS, The M/V ‘Saiga’ (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment of 1 July 1999, ITLOS Reports (1999), 10; The Marianna Flora, 24 U.S. (11 Wheaton) 1 (1826) Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘adequate grounds’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Relationship with Art. 110. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘shall be liable’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 4 4 5 7

I. Purpose and Function Art. 106 places a condition of exercise on a State’s rights of interference with foreign 1 vessels conferred by Art. 105: that compensation shall be paid for ‘loss or damage’ resulting from a seizure made on inadequate grounds. As discussed below, this has several functions. It may deter abuse of the right, and is consistent with the duty to exercise rights under UNCLOS in good faith (� Art. 300). It is also consistent with Art. 304, which provides that UNCLOS is ‘without prejudice to the application of existing rules […] regarding responsibility and liability under international law’. Such rules must include the ordinary principles of international law concerning State responsibility for injuries to foreign nationals. By virtue of Art. 58 (2), the present article applies in the exclusive economic zone (EEZ). 2

II. Historical Background The provisions of UNCLOS relating to piracy are of twentieth century origin and generally 3 represent progressive development of the law rather than codification of prior law. 1 Irrespective of such origins, these provisions, including the present article, are now widely 27

Ibid., 978 (footnote 289). Nordquist/Nandan/Rosenne (note 3), 216. For a more thorough treatment, see Guilfoyle on Art. 100 MN 4–7.

28 1

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Art. 106

4–6

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accepted as stating customary international law.2 The wording of Art. 106 follows closely Art. 20 of the1958 Geneva Convention on the High Seas, which in turn follows closely that of the International Law Commission (ILC) Articles concerning the Law of the Sea. In particular, this repetition of language from previous treaties or texts explains a number of potential inconsistencies between the present article and Art. 110 (3) and Art. 111 (8), which deal with similar issues. Apparently the ILC had intended to harmonise its text, but neglected to do so.3

III. Elements 1. ‘adequate grounds’ 4

Art. 106 imposes liability (and a duty of compensation) for any loss or damage which occur when a suspected pirate vessel is seized ‘without adequate grounds’ on the State whose warship or other government authorised vessel made the seizure. The rule can be justified to deter abuse,4 and may be seen as falling within the scope of Art. 300, on good faith and abuse of rights, and the general provisions on responsibility and liability in Art. 304. 5 The standard may have been varied in relation to Somali piracy where the Security Council has provided in Chapter VII Resolutions that States may seize and dispose of ‘boats, vessels, arms, and other related equipment used in the commission of piracy and armed robbery at sea off the coast of Somalia, or for which there are reasonable grounds for suspecting such use’.6 In practice this appears to have been treated as creating a summary power exercisable on the basis of limited circumstantial evidence.

2. Relationship with Art. 110 Such a seizure can only follow boarding and inspection of a suspect vessel. 7 Such a boarding is permitted only on ‘reasonable grounds’ for suspecting piracy (� Art. 110 (1)). Art. 106 should be read alongside Art. 110 (3) dealing with liability for wrongful boarding and inspection. Under Art. 110 (3) liability arises where the reasonable suspicions initially justifying boarding and inspection prove unfounded in fact; this strict liability is mitigated by the requirement that ‘the ship boarded has not committed any act justifying’ such suspicions. Art. 106 deals with the subsequent issue of liability for seizing a vessel ‘without adequate grounds’. This may appear a different standard to that found in Art. 110 (3). The difference in language may be traced to the ILC Articles concerning the Law of the Sea, where these two differently worded standards were first set out; the commentary of the ILC, however, appears to assume no difference in meaning.8 6 By analogy with Art. 110 (3), and on the basis of harmonious construction, a State will clearly have ‘adequate grounds’ for seizure in cases where the suspect vessel has committed an act justifying suspicion. Thus, in the Marianna Flora case, a vessel which was wrongly seized on suspicion of piracy was not entitled to compensation as it had fired on a US 5

2

See Guilfoyle on Art. 100 MN 6. Second Committee UNCLOS I, Summary Records of the 26th to 30th Meeting, UN Doc. A/CONF.13/C.2/ SR.26–30 (1958), OR IV, 81 (para. 27) (Comments of Norway). 4 ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12, 29–30 (Art. 46). 5 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995), 219. 6 Most recently: SC Res. 2246 of 10 November 2015, para. 12. For a more thorough treatment, see Guilfoyle on Art. 105 MN 8. 7 See generally Guilfoyle on Art. 110. 8 ILC Law of the Sea Articles with Commentaries (note 2), 29–30 (Art. 46); Nordquist/Nandan/Rosenne (note 3), 219. Different wording again is used in Art. 111 (8) on hot pursuit, requiring compensation if ‘circumstances […] do not justify’ it. 3

754

Guilfoyle

Ships and aircraft which are entitled to seize on account of piracy

Art. 107

warship (albeit in mistaken self-defence) thus giving the appearance of being a pirate vessel and justifying the action taken against it.9

3. ‘shall be liable’ Liability under Art. 106 is for ‘any loss or damage caused by the seizure’. Such losses could 7 include financially assessable losses following from delay of the voyage or loss of use. As discussed below, in respect of Art. 110 (3), the concept of ‘the ship’ may well extend to persons aboard, the owner and the bareboat charterer. 10 However, the duty of compensation is owed to the flag State and not to the ship. While this might be thought to follow from the ordinary principles of diplomatic protection, it apparently contradicts the obligation in Art. 110 (3) to directly compensate the ship itself for ‘loss or damage’ arising from improper exercise of the lesser right of visit and inspection (� Art. 110). This difference in drafting again originates with the ILC Articles, where no explanation is given. 11 Indeed, the assumption in the ILC commentary appears to be that the same ‘penalty’ applies in the case of both unjustified seizure on suspicion of piracy and other lesser acts of interference. 12 The ILC must have intended either direct compensation to the ship in all cases, or to the flag State in all cases. The former is the preferable conclusion: it more likely reflects the position at general international law and is upheld in subsequent treaty practice. 13

Article 107 Ships and aircraft which are entitled to seize on account of piracy A seizure on account of piracy may be carried out only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect. Bibliography: Gian Maria Farnelli, Back to Lotus? A Recent Decision by the Supreme Court of India on an Incident of Navigation in the Contiguous Zone, International Community Law Review 16 (2014), 106; Douglas Guilfoyle, Defending Individual Ships from Pirates: Questions of State Responsibility and Immunity, in: Christine Chinkin/Freya Baetens (eds.), Sovereignty, Statehood and State Responsibility: Essays in Honour of James Crawford (2015), 307–324; James Kraska, International and Comparative Regulation of Private Maritime Security Companies employed in Counter-Piracy, in: Douglas Guilfoyle (ed.), Modern Piracy: Legal Challenges and Responses (2013), 219–249; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995); Natalino Ronzitti, The Use of Private Contractors in the Fight against Piracy: Policy Options, in: Francesco Francioni/Natalino Ronzitti (eds.), War by Contract: Human Rights, Humanitarian Law, and Private Contractors (2011), 37–54; Tullio Treves, Navigation, in: Rene´-Jean Dupuy/Daniel Vignes (eds.), A Handbook on the New Law of the Sea, vol. II (1991), 835–976 Documents: ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45; ILC, Responsibility of States for Internationally Wrongful Acts, GA Res. 56/83 of 12 December 2001, Annex; IMO MSC, Revised Interim Guidance to Shipowners, Ship Operators and Shipmasters on the Use of PCASP on Board Ships in the High Risk Area, IMO Doc. MSC.1/Circ. 1406/Rev. 3 (2015); IMO MSC, Revised Interim Recommendations for Flag States Regarding the Use of Privately Contracted Armed Security Personnel on Board Ships in the High Risk Area, IMO Doc. MSC.1/Circ.1406/Rev.2 (2012); IMO MSC, Piracy and Armed Robbery Against Ships: 9

The Marianna Flora, 24 U.S. (11 Wheaton) 1, 42 (1826). Philipp Wendel, State Responsibility for Interferences with the Freedom of Navigation in Public International Law (2007), 93; ITLOS, The M/V ‘Saiga’ (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment of 1 July 1999, ITLOS Reports (1999), 10 (paras. 106–107). 11 ILC Law of the Sea Articles (note 3), 29–30 (Art. 45). 12 Ibid., 29. 13 Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (2009), 325–326; Art. 9 (2) Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000, UNTS 2241, 507. Art. 26 (2) Agreement on Illicit Traffic by Sea, Implementing Article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 20 December 1988, UNTS 1582, 95. 10

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Art. 107

1–3

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Recommendations to Governments for Preventing and Suppressing Piracy and Armed Robbery against Ships, IMO Doc. MSC.1/Circ.1333/Rev.1 (2015); UK House of Commons: Foreign Affairs Committee, Piracy off the Coast of Somalia, HC 1318 (5 January 2012) Cases: ITLOS, The ‘Enrica Lexie’ Incident (Italy v. India), Provisional Measures, Order of 24 August 2015; Republic of Italy v. Union of India, Supreme Court of India (SLP (C) No 20370 of 2012), 18 January 2013 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘warships or military aircraft’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘other ships or aircraft […] on government service’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘on government service’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Self-defence by merchant vessels . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. The position of State officials placed on private vessels to repel pirates . . . . . . . .

1 2 5 5 6 7 8 9

I. Purpose and Function 1

Art. 107 defines the vessels which may exercise the power to arrest and seize suspect pirate vessels granted in Art. 105. These are exclusively: ‘warships or military aircraft’ and ‘other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect’ (cf. � Art. 110 (5)).

II. Historical Background 2

Unlike most of the other UNCLOS articles related to piracy, there are significant differences between the present article and the International Law Commission (ILC) Articles concerning the Law of the Sea of 1956. These provided: ‘[a] seizure on account of piracy may only be carried out by warships or military aircraft.’1 Language including other categories of State vessel was excluded by the ILC as: ‘State action against ships suspected of engaging in piracy should be exercised with great circumspection, so as to avoid friction between States. Hence it is important that the right to take action should be confined to warships, since the use of other government ships does not provide the same safeguards against abuse.’2

3

At UNCLOS I, however, various proposals were made to amend the ILC drafting to encompass a wider range of vessels. It was Thailand that first suggested the addition of the words: ‘or other ships or aircraft on government service authorized to that effect’. 3 Art. 21 of the 1958 Geneva Convention on the High Seas, as adopted, provided: ‘[a] seizure on account of piracy may only be carried out by warships or military aircraft, or other ships or aircraft on government service authorized to that effect.’4 There is some suggestion in the travaux pre´paratoires that this change was intended to codify practice, or at least to reflect the practical necessities of maritime law enforcement. The Thai delegation observed that (contrary to some claims that piracy was an anachronism): 1 ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12, 29 (Art. 45). 2 Ibid.; a view supported by Yugoslavia, see Second Committee UNCLOS I, Summary Records of the 26th to 28th Meeting, UN Doc. A/CONF.13/C.2/SR.26-30 (1958), OR IV, 79 (para. 47). 3 E. g. UNCLOS I, Comments by Governments on the Draft Articles Concerning the Law of the Sea Adopted by the International Law Commission at its Eighth Session, UN Doc. A/CONF.13/5 and Add. 1 to 4 (1958), OR I, 112 (Comments of Thailand) and cf. proposal at 86 (Germany) and 91 (Italy, proposing extension to ‘ships performing official duties, such as customs control and policing’). 4 UNCLOS I, Text of the Articles and Draft Resolutions Adopted by the Second Committee, UN Doc. A/ CONF.13/L.17/Add.l (1958), OR IV, 150, 152.

756

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Ships and aircraft which are entitled to seize on account of piracy

4–7

Art. 107

‘conditions in […] [some] parts of the world are very different. The fact that pirate junks operate on the high sea of the Far East makes it essential […] for the scope of [the] article […] to be widened to include the use of police and customs patrol boats.’5

It has also been suggested that this change was made to accommodate States without any warships.6 The words ‘clearly marked and identifiable as being on’ were added to ‘government 4 service’ in the text of UNCLOS at the third session of UNCLOS III in 1975. 7 It is unclear what was intended by this addition.8 As a matter of consistency the same wording is used in Arts. 110 (5), 111 (5), and 224.9

III. Elements 1. ‘warships or military aircraft’ Of the two categories of vessel covered by Art. 107, the more restrictive category is clearly 5 that of warships and military aircraft. The term ‘warship’ is defined in Art. 29 as: ‘a ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State […] and manned by a crew […] under regular armed forces discipline.’ 10

This largely replicates the definition found in the 1907 Hague Convention (VII) Relating to the Conversion of Merchant Ships into War-Ships11 for converting a merchant vessel into a warship.12

2. ‘other ships or aircraft […] on government service’ The category of other government vessels appears to require only that the vessel is 6 properly ‘authorised’, ‘on government service’ and ‘clearly marked and identifiable’ as such. One may suggest that such vessels will usually bear distinctive national markings, fly special ensigns and be ‘manned by uniformed crews’.13 However, by contrast with Art. 29 neither government ownership nor ‘the presence of a commissioned officer’ is expressly required. 14 A private vessel could thus, in theory, meet these requirements. 15

3. ‘on government service’ Given that such government vessels need neither be owned by a government nor com- 7 manded by a commissioned officer, the ‘arming vessels and hiring contractors’ for counter5

Comments by Governments (note 3), 112 (Thailand). Natalino Ronzitti, The Use of Private Contractors in the Fight against Piracy: Policy Options, in Francesco Francioni/Natalino Ronzitti (eds.), War by Contract: Human Rights, Humanitarian Law, and Private Contractors (2011), 37, 42. Cf. ILC Law of the Sea Articles with Commentaries (note 1), 29. 7 UNCLOS III, Informal Single Negotiating Text (Part I), UN Doc. A/CONF.62/WP.8/PART I (1975), OR IV, 137, 166 (Art. 93). 8 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995), 222. 9 See UNCLOS III, Report of the Chairman of the Drafting Committee, UN Doc. A/CONF.62/L.57/Rev.1 (1980), OR XIV, 114, 118. 10 See further Barnes on Art. 29. 11 Convention (VII) Relating to the Conversion of Merchant Ships into War-Ships, 18 October 1907, AJIL 2 Suppl. (1908), 133–138. 12 Ronzitti (note 6), 37, 41. 13 Nordquist/Nandan/Rosenne (note 8), 222. 14 Ronzitti (note 6), 41. 15 Tullio Treves, Navigation, in: Rene ´-Jean Dupuy/Daniel Vignes (eds.), A Handbook on the New Law of the Sea, vol. II (1991), 835, 899. 6

Guilfoyle

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Art. 107

8

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piracy law-enforcement operations under Art. 105 ‘is in principle legally possible if the vessel is on government service, authorised to chase pirates, and the hiring government bears international responsibility.’16 To the extent that private entities carried out such delegated government functions (and undertaking general suppression of piracy on the high seas is clearly a government function), they would engage the responsibility of the licensing or hiring State 17 and would not therefore deprive innocent vessels of the compensation obligations in Art. 106. While the use of such government contractors for military, security or criminal justice functions is clearly not unknown there are, as yet, no examples in State practice of them being used as ‘pirate hunters’. The position of private armed security aboard private vessels is considered below.

4. Self-defence by merchant vessels 8

One must distinguish from Art. 107 the case of self-defence by merchant vessels. The ILC said the concept of ‘seizure’: ‘[c]learly […] does not apply in the case of a merchant ship which has repulsed an attack by a pirate ship and, in exercising its right of self-defence, overpowers the pirate ship and subsequently hands it over to a warship or to the authorities of a coastal State.’ 18

The presence of State-licensed but privately retained Privately Contracted Armed Security Personnel (PCASP) aboard a merchant vessel would not change this position. Indeed, the International Maritime Organization has, since 2009, issued ‘interim’ guidance to flag States and shipowners on the use of PCASP to protect vessels from pirate attack in the Indian Ocean and Gulf of Aden (the ‘High Risk Area’).19 The embarkation of PCASP is increasingly common, with up to 15–25 % of all vessels transits through the High Risk Area in 2012 carrying them.20 This State practice strongly suggests that PCASP per se do not violate international law. However, the question of criminal jurisdiction over any incidents of excessive or mistaken use of force is not straightforward. While flag State jurisdiction will apply to incidents on the high seas, the State of nationality of individual PCASP members or the State of nationality of anyone killed or injured by a PCASP member may also attempt to assert jurisdiction over wrongful (or allegedly wrongful) uses of force. It is dubious that the Art. 97 (1) reservation of criminal jurisdiction to the flag State (or State of nationality of the person involved) in cases of ‘a collision or any other incident of navigation’ would apply here. It seems hard to argue that use of firearms is an ordinary ‘incident of navigation’. Indian courts have not accepted such a plea in the Enrica Lexie incident (discussed below), though at time of writing the question of jurisdiction is the subject of international arbitration between Italy and India brought under � Part XV of UNCLOS. 21 16 Ronzitti (note 6), 41–42 (arguing this would not contravene the Paris Declaration Respecting Maritime Law, 16 April 1856, abolishing privateering, as privateers were licensed to ‘carry out acts of war’. The Declaration is reprinted in AJIL 1, No. 2 Suppl. (1907), 89–90). 17 ILC, Responsibility of States for Internationally Wrongful Acts, GA Res. 56/83 of 12 December 2001, Annex (Art. 5). 18 ILC Law of the Sea Articles with Commentaries (note 1), 29 (Art. 45). 19 See most recently IMO MSC, Revised Interim Guidance to Shipowners, Ship Operators and Shipmasters on the Use of PCASP on Board Ships in the High Risk Area, IMO Doc. MSC.1/Circ. 1406/Rev. 3 (2015); IMO MSC, Revised Interim Recommendations for Flag States Regarding the Use of Privately Contracted Armed Security Personnel on Board Ships in the High Risk Area, IMO Doc. MSC.1/Circ.1406/Rev.2 (2012). See also: IMO MSC, Piracy and Armed Robbery Against Ships: Recommendations to Governments for Preventing and Suppressing Piracy and Armed Robbery against Ships, IMO Doc. MSC.1/Circ.1333/Rev.1 (2015), Annex, paras 3–8. See further James Kraska, International and Comparative Regulation of Private Maritime Security Companies employed in Counter-Piracy, in: Douglas Guilfoyle (ed.), Modern Piracy: Legal Challenges and Responses (2013), 219–249. 20 UK House of Commons: Foreign Affairs Committee, Piracy off the Coast of Somalia, HC 1318 (5 January 2012), para. 26, available at: http://www.parliament.uk/business/committees/committees-a-z/commons-select/ foreign-affairs-committee/publications. 21 See: Gian Maria Farnelli, Back to Lotus? A Recent Decision by the Supreme Court of India on an Incident of Navigation in the Contiguous Zone, International Community Law Review 16 (2014), 106 discussing Republic of

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5. The position of State officials placed on private vessels to repel pirates Recently a practice has emerged in pirate-affected waters in the Indian Ocean and Gulf of 9 Aden in which some flag States deploy military personnel aboard private vessels sailing under their flag.22 Military personnel so embarked are referred to as Vessel Protection Detachments (VPDs). Prima facie, such VPDs do not enjoy Art. 105 powers of seizure. They may thus be limited to the kind of self-defence action described above, though this could (on the ILC’s view at least) still extend to overpowering a pirate ship and then handing it over to State authorities. Importantly, such VPDs will not benefit from the immunities conferred over warships or government vessels under Arts. 95 and 96. If a VPD wrongfully injures (or kills) a suspect pirate or damages a suspect pirate vessel, the State embarking them on the private vessel will be responsible for the damage caused as a matter of State responsibility. 23 However, in cases of alleged wrongful death or injury caused by VPDs, individual members of the VPD may face prosecution before foreign courts. While a claim of immunity from jurisdiction based on the official character of the conduct should in theory be available, the practice of national courts on point is inconsistent. In particular, in the Enrica Lexie affair of 2012 an Italian VPD shot dead two Indian fishermen mistaken for pirates. The two Italian officers involved appeared before an Indian court and their claim of immunity was denied.24 While the Indian Supreme Court has asserted the jurisdiction of Indian federal courts the matter is presently the subject of an international arbitration between Italy and India, as noted above. 25

Article 108 Illicit traffic in narcotic drugs or psychotropic substances 1. All States shall cooperate in the suppression of illicit traffic in narcotic drugs and psychotropic substances engaged in by ships on the high seas contrary to international conventions. 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. Bibliography: William C. Gilmore, Drug Trafficking by Sea: the 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Marine Policy 15 (1991), 183–192; Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (2009); Natalie Klein, Maritime Security and the Law of the Sea (2011); Myres S. McDougal/William T. Burke, The Public Order of the Oceans (1962); William Masterson, Jurisdiction in Marginal Seas with Special Reference to Smuggling (1929); Myron H. Nordquist/Satya N. Nandan/ Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995); Bernard H. Oxman, The Regime of Warships under the United Nations Convention on the Law of the Sea, VJIL 24 (1983–1984), 809–863; Efthymios Papastavridis, The Interception of Vessels on the High Seas: Contemporary Challenges to the Legal Order of the Oceans (2013); John Siddle, Anglo-American Cooperation in the Suppression of Drug Smuggling, ICLQ 31 (1982), 726–747 Documents: GA Res. 65/37 of 7 December 2010

Italy v. Union of India, Supreme Court of India (SLP (C) No 20370 of 2012), 18 January 2013; and ITLOS, The ‘Enrica Lexie’ Incident (Italy v. India), Provisional Measures, Order of 24 August 2015. 22 See generally Douglas Guilfoyle, Defending Individual Ships from Pirates: Questions of State Responsibility and Immunity, in: Christine Chinkin/Freya Baetens (eds.), Sovereignty, Statehood and State Responsibility: Essays in Honour of James Crawford (2015), 307–324; and Kraska (note 19). 23 See Guilfoyle on Art. 106 MN 7. 24 Fishermen’s Killing: Kerala High Court Dismisses Italy’s Plea, Says Indian Courts Can Try Naval Guards, Times of India, 29 May 2012, available at: http://articles.timesofindia.indiatimes.com/2012-05-29/india/ 31886910_1_kollam-court-indian-courts-indian-fishermen. 25 See supra, note 21.

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Cases: ECtHR, Medvedyev v. France, Judgment of 29 March 2010, available at: http://hudoc.echr.coe.int/hudoc/; R v. Dean and Bolden [1998] 2 Cr. App. R. 171 (UK) Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘cooperate in the suppression of […]’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘cooperation of other State’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 5 8 8 9

I. Purpose and Function The smuggling of narcotic drugs and psychotropic substances (hereafter, ‘drugs’) by sea is of significant international concern.1 Jurisdiction to interdict drug smugglers in coastal State waters is well-recognised in international law.2 It may be impractical, however, to wait for traffickers to enter territorial or contiguous waters. Drug-running ‘mother ships’ may sit in international waters, distributing their cargo to faster, smaller boats to convey ashore. It may also simply be easier for State authorities to take action against drug-smuggling vessels on the high seas, where opportunities to evade pursuit are more limited. 2 Art. 108 thus addresses the ‘need for cooperation between States in efforts to suppress illicit traffic [in drugs] on the high seas’.3 However, in contrast to piracy, slavery, unauthorised broadcasting and stateless vessels (� Art. 110) no right of visit over suspect vessels is granted. The article rests instead on principles of cooperation and flag State control. It is perhaps better seen as a framework provision, allowing other ‘international conventions’ a dominant role. Relevant multilateral treaties now include the Single Convention on Narcotic Drugs 1961, 4 the Convention on Psychotropic Substances 1971 and, importantly, the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988 (UN Narcotics Convention 1988). 3 A number of regional treaties have also been concluded,5 and the United States in particular has an extensive network of bilateral treaties on the subject. 6 These, along with the UN Narcotics Convention 1988, provide a system by which States may request authority (or are authorised under certain circumstances) to board and inspect a suspect vessel and possibly arrest crew and seize cargo. The majority of state practice relies on these more specific treaties and not Art. 108. 4 By virtue of Art. 58 (2), the present article applies in the exclusive economic zone (EEZ). A situation covered by Art. 108 (2) could thus implicate three States: a flag State which suspects one of its vessels of drug smuggling requesting cooperation from another State to intercept that vessel at sea; a cooperating State responding to that request; and the coastal State with jurisdiction over the EEZ in which the interception occurs. Historically some States, notably Brazil, have asserted such law enforcement operations in the EEZ require coastal State consent. Given that coastal States do not have jurisdiction over drug smuggling in their EEZ, the better view must be that any cooperating State conducting such an operation in a 1

1

See e. g., GA Res. 65/37 of 7 December 2010, preamble and para. 4. Art. 19 (1)(d) Convention on the Territorial Sea and the Contiguous Zone 1958; Art. 27 (1)(d) UNCLOS. 3 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995), 228. 4 Art. 44 terminated nine earlier treaties as among the parties. 5 Agreement on Illicit Traffic by Sea, Implementing Article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances; Agreement Concerning Co-operation in Suppressing Illicit Maritime and Air Trafficking in Narcotic Drugs and Psychotropic Substances in the Caribbean Area, 10 April 2003 (Carribean Area Agreement), text available at http://www.state.gov/s/l/2005/87198.htm. 6 For further detail, see Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (2009), 89–94; Efthymios Papastavridis, The Interception of Vessels on the High Seas: Contemporary Challenges to the Legal Order of the Oceans (2013), 229–236; Natalie Klein, Maritime Security and the Law of the Sea (2011), 130–137. 2

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foreign EEZ does not require consent. If, however, a government vessel acts to suppress narcotics smuggling in a foreign EEZ it must act with ‘due regard’ for the coastal State’s rights and interests (� Art 58 (3)).7

II. Historical Background Prior to UNCLOS State cooperation to repress drug smuggling at sea was not without 5 precedent: a 1924 treaty between the between the United States and the United Kingdom, directed at combating rum-running during Prohibition, allowed the US a unilateral right of visit, inspection and arrest over UK vessels (subject to conditions). 8 A similar approach was used in a 1981 US-UK treaty on marijuana smuggling.9 Such treaties did not expressly acknowledge any duty of cooperation in the maritime domain; however, both the Single Convention on Narcotic Drugs 1961 and the Convention on Psychotropic Substances 1971 set out a general duty of cooperation to counter traffic in drugs. 10 (Modern treaty practice is discussed below but, given advances in communication technology, tends to provide mechanisms for seeking positive flag State authorisation rather than relying on advance permission or waivers of objection.) Early proposals on the topic suggested using language based on the Convention on the 6 High Seas 1958 (High Seas Convention) flag State duty to suppress the use of flag vessels in the slave trade (see now � Art. 99).11 The language adopted in Art. 108 (1), however, more closely tracks obligations in relation to piracy (� Art. 100). Proposals, however, that a similar right of visit or seizure should be included (see � Art. 105 and 110) failed to attract consensus during the negotiation of UNCLOS.12 This proposal would have placed between the current paragraphs 1 and 2 of Art. 108 a further paragraph, providing that: ‘[a]ny State which has reasonable grounds for believing that a vessel is engaged in illicit traffic in narcotic drugs may, whatever the nationality of the vessel but provided that its tonnage is less than 500 tons, seize the illicit cargo. The State which carried out this seizure shall inform the State of nationality of the vessel in order that the latter State may institute proceedings against those responsible for the illicit traffic.’

This was rejected on the grounds that it was ‘feared that there was too much potential for abuse and harassment, either in good faith or as a pretext’ given the potentially broad definition of ‘narcotic drugs’ and ‘psychotropic substances’ (see further paragraph 7, below).13 That is, these terms could readily cover substances with medical applications and thus in many cases ‘some such substance may be in the possession of crew members of

7 Further, see ibid., 44; and compare unsuccessful attempts to include in UNCLOS a requirement that a State acting against pirate craft in an EEZ notify the coastal State ‘and cooperate with it’, Nordquist/Nandan/Rosenne (note 3), 214. 8 See Art. 2 Convention Between the United Kingdom and the USA Respecting the Regulation of the Liquor Traffic, 23 January1924, LNTS 27, 182; on its history, see William Masterson, Jurisdiction in Marginal Seas with Special Reference to Smuggling (1929), 304–321, 326–352. 9 Agreement to Facilitate the Interdiction by the United States of Vessels of the United Kingdom Suspected of Trafficking in Drugs, 13 November 1981, UNTS 1285, 197; see Guilfoyle (note 6), 81–82; Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 134, 219; John Siddle, Anglo-American Cooperation in the Suppression of Drug Smuggling, ICLQ 31 (1982), 726. 10 Art. 35 (c) Single Convention on Narcotic Drugs; Art. 21 (c) Convention on Psychotropic Substances. 11 Sea-Bed Committee, Draft Ocean Space Treaty: Working Paper Submitted by Malta, UN Doc. A/AC.138/53 (1971) (Article 16); cf. Art. 13 High Seas Convention. 12 See Second Committee UNCLOS III, Belgium et al.: Working Paper on the High Seas, UN Doc. A/CONF.62/ C.2/L.54 (1974), OR III, 229, 230 (Article 21 ter). The proposal was made by nine States: Belgium, Denmark, France, Germany (Federal Republic), Ireland, Italy, Luxembourg, Netherlands and the United Kingdom. 13 Bernard H. Oxman, The Regime of Warships under the United Nations Convention on the Law of the Sea, VJIL 24 (1983–1984), 809, 829; Nordquist/Nandan/Rosenne (note 3), 227 (MN 108.4).

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passengers aboard a large number of ships, whether for purposes of consumption or traffic.’14 7 It is also worth noting that the initial proposal for the inclusion of such an article, made by Malta in 1972 in the Sea Bed Committee, referred only to the ‘illicit transport of narcotic drugs’.15 The words ‘narcotic and psychotropic drugs’ and finally ‘narcotic drugs and psychotropic substances’ were added to the drafting at UNCLOS III in 1974 and 1975 respectively.16 The reason for the change is not clear, but it was likely done for consistency with the language of (or to implicitly refer to) both the Single Convention on Narcotic Drugs 1961 and the Convention on Psychotropic Substances 1971.

III. Elements 1. ‘cooperate in the suppression of […]’ 8

Art. 108 (1) imposes a general duty upon all States to cooperate ‘in the suppression of illicit traffic’ in drugs on the high seas, ‘contrary to international conventions’. The duty is not limited to taking action regarding a State’s own flag vessels, but this does not imply any enforcement powers against foreign vessels. No content is given to the phrase ‘contrary to international conventions’. The relevant conventions are usually taken to be those with nearuniversal adherence: the Single Convention on Narcotic Drugs 1961 (154 parties), the Convention on Psychotropic Substances 1971 (183 parties) and the UN Narcotics Convention 1988 (189 parties).17 These set out a regulatory regime in respect of substances listed in schedules or annexes.18 There is thus widespread consensus as to those drugs which should be subject to international trade restrictions.

2. ‘cooperation of other State’ Art. 108 (2) is manifestly defective as a general instrument of international counternarcotics cooperation. It is specifically directed to cases where a State ‘has reasonable grounds for believing that a ship flying its flag is engaged in illicit traffic’ (emphasis added). In such cases it may request other States’ cooperation in suppressing that vessel’s activities. The vastly more common case is a State seeking to interdict a vessel suspected of drug smuggling which flies another State’s flag.19 The present article’s drafting risks courts finding that if it was the interdicting State which first requested flag State permission to board a suspect vessel any resulting action is not authorised by treaty law. 20 10 To some extent this lacuna has been remedied by Art. 17 (3) of the UN Narcotics Convention 1988, which provides: 9

‘A Party which has reasonable grounds to suspect that a vessel exercising freedom of navigation … and flying the flag or displaying marks of registry of another Party is engaged in illicit traffic may so notify the flag State, request confirmation of registry and, if confirmed, request authorization from the flag State to take appropriate measures […].’ 14

Oxman (note 13), 829. Nordquist/Nandan/Rosenne (note 3), 225. 16 Ibid., 226–227. 17 See UNTC, Multilateral Treaties Deposited with the Secretary-General, Chapter VI, available at: https:// treaties.un.org/Pages/Treaties.aspx?id=6&subid=A&clang=_en. 18 See: Arts. 24, 27, 31 and Schedules I-IV, Single Convention on Narcotic Drugs; Art. 12 and Schedules I-IV, Convention on Psychotropic Substances; Art. 12 (9) and Annex (Tables I and II) United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. 19 William C. Gilmore, Drug Trafficking by Sea: The 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Marine Policy 15 (1991), 183, 185. 20 ECtHR, Medvedyev v. France, Grand Chamber, Judgment of 29 March 2010 (para. 84), available at: http:// hudoc.echr.coe.int/hudoc/; although States may consent ad hoc to such boardings under customary law, Ibid., para. 40; Myres McDougal/William Burke, The Public Order of the Oceans (1962), 875. 15

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Under Art. 17 (4) of the UN Narcotics Convention such ‘appropriate measures’ may include boarding the vessel, searching the vessel and/or taking such other law enforcement activity as permitted by the flag State. The requirement of a registry check, however, may create delay and not all vessels enjoying nationality are necessarily registered. 21 Some bilateral and multilateral drug interdiction treaties now provide instead that only 11 ‘nationality’ not ‘registry’ must be confirmed,22 and some authorise limited powers of boarding and inspection on the part of a requesting State where the flag States gives no answer to an acknowledged request for permission to board within a specified period (typically 2–4 hours). 23

Article 109 Unauthorized broadcasting from the high seas 1. All States shall cooperate in the suppression of unauthorized broadcasting from the high seas. 2. For the purposes of this Convention, ‘unauthorized 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 regulations, but excluding the transmission of distress calls. 3. Any person engaged in unauthorized broadcasting may be prosecuted before the court of: (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 authorized radio communication is suffering interference. 4. 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 unauthorized broadcasting and seize the broadcasting apparatus. Bibliography: Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); Jens Evensen, Aspects of International Law Relating to Modern Radio Communications, RdC 115 (II) (1965), 471–583; Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (2009); Mitchell J. Hanna, Controlling Pirate Broadcasting, San DiegoLRev 15 (1977–1978), 547–571; Neville March Hunnings, Pirate Broadcasting in European Waters, ICLQ 14 (1965), 410–436; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995); Horace B. Robertson Jr., The Suppression of Pirate Radio Broadcasting: A Test Case of the International System for Control of Activities Outside National Territory, Law & Contemporary Problems 45 (1982), 71–101; Malcolm N. Shaw, International Law (7th edn. 2014); H. F. van Panhuys/Menno J. van Emde Boas, Legal Aspects of Pirate Broadcasting: A Dutch Approach, AJIL 60 (1966), 303–341 Cases: Seizure and Search of the ‘Lucky Star’ (Jurisdiction – Offshore Broadcasting), ILM 2 (1963), 343 (Denmark); Gerechtshof (Court of Appeal of the Netherlands), Compania Naviera Panlieve SA v. Public Prosecutor, ILR 101 (1996), 409; Rechtbank Amsterdam (Local Court of Amsterdam), Public Prosecutor v. KVD and LMT, ILR 74 (1987), 200 (Netherlands) Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 5 9

21

See generally Guilfoyle on Art. 91; cf. R v. Dean and Bolden [1998] 2 Cr. App. R. 171, 186 (UK). E. g. Arts. 6 and 16 Caribbean Area Agreement. 23 Art. 16 Caribbean Area Agreement; cf. Art. 4, Agreement between the US and Venezuela to Suppress Illicit Traffic in Narcotic Drugs and Psychotropic Substances by Sea, 9 November 1991, UNTS 2211, 387. At least seven other US bilateral drug interdiction treaties contain such provisions, see discussion in Guilfoyle (note 6), 89–90. 22

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‘All States shall cooperate’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ‘unauthorised broadcasting’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Adjudicative jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ‘Jurisdiction to ‘arrest any person or ship’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

9 10 11 12

I. Purpose and Function Unauthorised ‘pirate radio’ broadcasts may seem a quaint footnote to the history of popular music.1 However, unauthorised radio broadcasts may jeopardise public safety, interfering with emergency frequencies and sea and air traffic control channels. 2 Nonetheless, the State interest most affected by such activities was the regulation of valuable space on the radio spectrum.3 The inclusion of Art. 109 in UNCLOS, ‘fifteen years after the peak of the [pirate radio] problem’, is sometimes regarded as mysterious, 4 or ‘an exercise in overkill’, compromising freedom of navigation.5 The simplest reason for its inclusion, however, would no doubt be that nothing inherently prevents the problem from recurring. 2 High-seas interdiction of vessels suspected of unauthorised broadcasting by non-flag State government vessels is, however, inefficient. The most effective law-enforcement efforts against pirate radio focussed on criminalising on-shore ancillary activities, such as re-supplying the vessels or paying for advertising on their broadcasts.6 The latter was particularly effective at disrupting broadcasters’ mains source of revenue.7 Nonetheless, direct enforcement action could still be necessary where illegal broadcasters rely largely on foreign advertising. 8 3 The present Art. 109 was first suggested for inclusion in UNCLOS in 1974, 9 when the experience of the sponsoring European States would have still seemed fresh. It was included with little explanation,10 although France suggested it was aimed ‘particularly [at] commercial and propaganda broadcasts’.11 4 By virtue of Art. 58 (2) the present article applies in the exclusive economic zone (EEZ). If, however, a government vessel acts to suppress piracy in an EEZ it must act with ‘due regard’ for the coastal State’s rights and interests (� Art 58 (3)). 12 1

II. Historical Background 5

Unauthorised high seas broadcasting was principally a western European problem, peaking in the mid-1960s and largely vanishing thereafter, and was the unintended result of regulation. In 1965 radio broadcasting in thirteen European states was a state monopoly 1 Treated comically, but not entirely inaccurately, in the film The Boat that Rocked (2009). See generally: Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (2009), Ch. 7. 2 Jens Evensen, Aspects of International Law Relating to Modern Radio Communications, RdC 115(II) (1965), 471, 565–566. 3 Mitchell J. Hanna, Controlling Pirate Broadcasting, San Diego L. Rev. 15 (1977–1978), 547, 547–548; cf. Neville M. Hunnings, Pirate Broadcasting in European Waters, ICLQ 14 (1965), 410, 413. 4 Hanna (note 3), 568; Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 211. 5 Horace B. Robertson Jr., The Suppression of Pirate Radio Broadcasting: A Test Case of the International System for Control of Activities Outside National Territory, Law & Contemporary Problems 45 (1982), 71, 101; compare Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995), 234–235 (MN 109.6) (similar objections by Israel). 6 Guilfoyle (note 1), 173–174. 7 Hanna (note 3), 563. 8 Guilfoyle (note 1), 177. 9 Robertson (note 5), 99. 10 Ibid., 99–100. 11 Nordquist/Nandan/Rosenne (note 5), 233 (MN 109.3); but see Guilfoyle (note 1), 177, finding little evidence of maritime propaganda broadcasts in practice. 12 Note unsuccessful attempts to include a requirement in UNCLOS that a State acting against pirate craft in an EEZ notify the coastal State ‘and cooperate with it’, Nordquist/Nandan/Rosenne (note 5), 214.

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without advertising,13 which created an economic niche for commercial broadcasters operating outside national jurisdiction.14 Denmark, Finland, Norway and Sweden took the first effective measures against such 6 broadcasting, implementing relatively uniform legislation on 1 August 1962.15 The ‘common basic scheme’ of these laws was to criminalise acts: by nationals; broadcasts intended to be received, or causing interference, in the legislating State; 16 and ancillary activities such as participating in or financing broadcasting or re-supplying ships involved. 17 This resulted in police actions, prosecutions and stations closing.18 This quasi-uniform legislation was based on International Telecommunication Union (ITU) regulations. However, the ITU regulations did not authorise extraterritorial maritime enforcement jurisdiction. 19 Unauthorised broadcasting was first criminalised in treaty law under a 1965 European 7 Agreement,20 closely modelled on the common Nordic legislation.21 The European Agreement makes it an offence to transmit broadcasts capable of being received in the territory of any party.22 However, jurisdiction to prosecute was founded upon jurisdiction over nationals, jurisdiction over acts aboard flag vessels and on the basis of territorial jurisdiction over accessorial crimes of supporting unauthorised broadcasting. No analogy to piracy was made. Though much of the proscribed conduct was extraterritorial, jurisdiction to enforce was not and no rights of high-seas boarding were created. Historic cases of at-sea repression of unauthorised broadcasting are few, and the legal basis for such action was not always either clear or upheld by national courts.23 The text of the present article follows very closely and with only minor drafting changes, a 8 proposal put forward at UNCLOS III by nine European States in 1974.24 Of these proposing States all nine were signatories to the 1965 European Agreement, and only one was not a party by 1974.25 The text of that agreement appears not to have played any significant role in the drafting of their proposal.

III. Elements 1. ‘All States shall cooperate’ Art. 109 (1) provides that ‘All States shall cooperate in the suppression of unauthorized 9 [high seas] broadcasting’. This echoes the duty to cooperate in suppressing piracy 13 UK, France, West Germany, Netherlands, Belgium, Switzerland, Austria, Italy, Spain, Portugal, Ireland, Sweden, Denmark, Norway and Finland, Hunnings (note 3), 416. 14 H. van Panhuys/M. van Emde Boas, Legal Aspects of Pirate Broadcasting: A Dutch Approach, AJIL 60 (1966), 303, 309; Churchill/Lowe (note 4), 212. 15 Hunnings (note 3), 419. 16 Ibid. 17 Ibid., 418–419, See e. g. Rechtbank Amsterdam (Local Court of Amsterdam), Public Prosecutor v. KVD and LMT, ILR 74 (1987), 200 (Netherlands). 18 Hunnings (note 15), 419–420; Hanna (note 3), 553. 19 Robertson (note 5), 73–74. 20 European Agreement for the Prevention of Broadcasting Transmitted from Stations Outside National Territory, 22 January 1965, UNTS 634, 239. 21 Hunnings (note 3), 433. 22 Arts. 1 and 2 European Agreement for the Prevention of Broadcasting Transmitted from Stations Outside National Territory. 23 See: Guilfoyle (note 1), 172–173, 175; Seizure and Search of the ‘Lucky Star’ (Jurisdiction – Offshore Broadcasting), ILM 2 (1963), 343 (Denmark); Gerechtshof (Court of Appeal of the Netherlands), Compania Naviera Panlieve SA v. Public Prosecutor, ILR 101 (1996), 409; Public Prosecutor v. KVD and LMT (note 17). 24 See Second Committee UNCLOS III, Belgium et al. working paper on the high seas, UN Doc. A/CONF.62/ C.2/L.54 (1974), OR III, 229, 230 (Article 21 ter). The proposal was made by nine States: Belgium, Denmark, France, Germany (Federal Republic), Ireland, Italy, Luxembourg, Netherlands and the United Kingdom. 25 See note 20 above. Of the proposing states (listed in note 24) only Luxembourg was a signatory and not a party to the Agreement.

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Part VII. High seas

(� Art. 101). However, given the paucity of State practice it cannot be presumed to represent customary international law.

2. ‘unauthorised broadcasting’ 10

Art. 109 (2) defines ‘unauthorised broadcasting’ as ‘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 regulations’. The ‘transmission of distress calls’ is excluded from this definition. The requirement that broadcasts must be contrary to ‘international regulations’ is satisfied by the ITU regulations discussed above, which have prohibited mobile broadcasting stations at sea since 1938. 26 Notably, however, Art 109 (2) refers also to high seas installations. This contemplates broadcasting from fixed platforms on the continental shelf, which occurred briefly in 1964 in the Netherlands in the Radio Nordzee episode.27 Jurisdiction over such structures could now be asserted by the coastal State under other provisions of UNCLOS also.28

3. Adjudicative jurisdiction 11

Art. 109 (3) defines the scope of adjudicative jurisdiction over of unauthorised broadcasting, relying on generally recognised heads of jurisdiction.29 It permits prosecution before the courts of: (a) ‘the flag State of the [broadcasting] ship’ (flag State jurisdiction); (b) ‘the State of registry of the [broadcasting] installation’ (jurisdiction based on registration); 30 (c) the State of which the person is a national (jurisdiction based on nationality); (d) any State where the transmissions can be received (objective territorial jurisdiction); or (e) ‘any State where authorized radio communication is suffering interference’ (objective territorial or ‘effects’ jurisdiction). No comparable list of competent jurisdictions is found elsewhere in Part VII. The reason for this choice of drafting is unclear, but given its reliance on accepted jurisdictional principles it might be thought to have been drafted in this fashion in an abundance of caution. Necessarily, Art. 109 must also contemplate that such States have authority to enact relevant criminal legislation.

4. ‘Jurisdiction to ‘arrest any person or ship’ 12

Art. 109 (4) provides that ‘[o]n 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 unauthorized broadcasting and seize the broadcasting apparatus.’ This has the peculiar effect that if a State’s courts have jurisdiction over any of the relevant conduct (i. e. one of that State’s nationals was involved) that State gains extra-territorial high seas enforcement jurisdiction over the whole vessel or structure and all persons and equipment aboard. Despite the potential breadth of this conferral of enforcement jurisdiction it does not appear generally to have been protested by States during negotiations. The sole objector was Israel which suggested the deletion of the enforcement powers from the text,31 and whose delegate SHABTAI ROSENNE characterised the provision as a whole as using ‘a dreadnought to crack a sea-snail’ and as representing ‘unjustified interference with the freedom of navigation and certain basic human rights that should be exercisable on the high seas’.32 The lack of widespread objection to the 26

Panhuys/Boas (note 14), 307 (discussing the 1938 and 1959 amendments). Guilfoyle (note 1), 172–173; Panhuys/Boas (note 13), 326 et seq. 28 See: Proelss on Art. 60 MN 8–17; Maggio on Art. 80 MN 11. 29 On jurisdiction, see Malcolm N. Shaw, International Law (7th edn. 2014), 474–485. 30 However, references to registered ‘installations’ in UNCLOS are few, see Papanicolopulu on Art. 262 MN 4–5. 31 Nordquist/Nandan/Rosenne (note 5), 234–235. 32 UNCLOS III, 163rd Plenary Meeting, UN Doc. A/CONF.62/SR.163 (1982), OR XVI, 52 (para. 52). 27

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inclusion of enforcement powers, as compared with Art. 108 on trafficking in narcotic drugs and psychotropic substances, may have followed from the fact that the present provision is less susceptible to abuse or use as a pretext for intervention. 33 Many vessels (legitimately) carry drugs, few conduct broadcasting. In practice the provision appears never to have been used.

Article 110 Right of visit 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 in accordance with articles 95 and 96, is not justified 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. 2. In the cases provided for in paragraph 1, the warship may proceed to verify the ship’s right to fly its flag. To this end, it may send a boat under the command of an officer to the suspected ship. If suspicion remains after the documents have been checked, it may proceed to a further examination on board the ship, which must be carried out with all possible consideration. 3. If the suspicions prove to be unfounded, and provided that the ship boarded has not committed any act justifying them, it shall be compensated for any loss or damage that may have been sustained. 4. These provisions apply mutatis mutandis to military aircraft. 5. These provisions also apply to any other duly authorized ships or aircraft clearly marked and identifiable as being on government service. Bibliography: Gilbert Gidel, Le droit international public de la mer: le temps de paix, vol. I (1932); Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (2009); Natalie Klein, Maritime Security, in: Donald R. Rothwell/Alex G. Oude Elferink/Karen N. Scott/Tim Stephens (eds.) The Oxford Handbook of the Law of the Sea (2015), 582–603; Laurent Lucchini/Michel Voelckel, Droit de la mer, vol. II (1996); Myres S. McDougal/William T. Burke, The Public Order of the Oceans (1962); Herman Meijers, The Nationality of Ships (1967); Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995); Daniel P. O’Connell, The International Law of the Sea, vol. II (1984); Robert Reuland, Interference with Non-National Ships on the High Seas: Peacetime Exceptions to the Exclusivity Rule of Flag State Jurisdiction, Vand. J. Transnat’l L 22 (1989), 1161–1229; Ivan A. Shearer, Problems of Jurisdiction and Law Enforcement against Delinquent Vessels, ICLQ 35 (1986), 320–343; Philipp Wendel, State Responsibility for Interferences with the Freedom of Navigation in Public International Law (2007) Documents: ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45; US Navy, The Commanders’ Handbook on the Law of Naval Operations (2007) Cases: ECtHR, Medvedyev v. France, Judgment of 29 March 2010, available at: http://hudoc.echr.coe.int/hudoc/; ICTY Trial Chamber, The Prosecutor v. Dragoljub Kunarac, ICT-96-23-T, Judgment of 22 February 2001; ITLOS, The M/V ‘Saiga’ (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment of 1 July 1999, ITLOS Reports (1999), 10; Naim Molvan v. Attorney General for Palestine (The ‘Asya’) [1948] AC 351 (UK); The Marianna Flora, 24 U.S. (11 Wheaton) 1 (1826); United States v. Marino-Garcia, 679 F.2 d 1373 (11th Cir. 1982) (US)

33

See further Guilfoyle on Art. 108 MN 6.

Guilfoyle

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1–3

Part VII. High seas Contents

I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘Right of visit’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘shall be compensated’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Instances of the right of visit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 5 8 8 12 13

I. Purpose and Function A vessel on the high seas is ordinarily subject to the exclusive jurisdiction of its flag State (� Art. 92 (1)) and therefore immune from interference by foreign public vessels. 1 Art. 110 deals with the right of visit historically enjoyed by State warships over foreign vessels on the high seas, thus codifying the general exception to this principle (though not all its provisions reflect custom). Only a government warship, military aircraft or, other vessel or aircraft ‘duly authorized … [and] clearly … identifiable as being on government service’ may exercise such a right of visit and only in the cases specified. The article clearly limits, to some extent, the freedom of navigation on the high seas (� Art. 87 (1)(a)). The provision is therefore unsurprisingly restrictive, given the general importance attached to freedom of navigation. 2 However, as a vast domain beyond the territorial jurisdiction of any State, minimum public order on the high seas requires that all States have some general police powers. That said, there is no unifying principle underlying Art. 110 either in terms of the subject matters covered or the powers allocated: unauthorised high seas broadcasts are not on par with slavery.2 It is a codification of the historically recognised exceptions as at the time the Convention was concluded: piracy (� Arts. 100–107), the slave trade (� Art. 99), stateless vessels (� Arts. 91; Art. 92)3 and unauthorised high seas broadcasting (� Art. 109). High seas interdiction in respect of all of these activities had previously been the subject of multilateral treaties, but State rights of high seas interference with foreign vessels was only recognised as regards the first three subjects as a matter of customary international law. The fact that Art. 110 is a closed list has caused some controversy 4 in relation to contemporary concerns, such as the smuggling of weapons of mass destruction by sea. 3 Art. 110 does not preclude other powers over foreign vessels being granted by treaty. 5 Commonly a flag State may authorise acts of foreign law enforcement against its flag vessels by bilateral treaty.6 Absent a treaty, a State may also consent ad hoc to a foreign warship visiting one of its flag vessels.7 The suggestion in the Convention that treaties provide ‘the only instances in which one state may apply authority to the ships of another’ is thus ‘seriously misleading’.8 1

1 ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 25 (Art. 30). This does not exclude the possibility of concurrent prescriptive jurisdictions: Gilbert Gidel, Le droit international public de la mer: le temps de paix, vol. I (1932), 261. 2 Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (2009), 24. 3 See further: Guilfoyle on Art. 91 MN 13; Guilfoyle on Art. 92 MN 2, 6 and 14. 4 Particularly in relation to the omission of the interdiction of narcotic drugs and psychotropic substances, see further Guilfoyle on Art. 108 MN 6. 5 Klein draws attention to the fact that in relation to a range of challenges States have crafted new multilateral treaties providing rights of boarding: Natalie Klein, Maritime Security in: Donald Rothwell et al. (eds.) The Oxford Handbook of the Law of the Sea (2015), 587. 6 Guilfoyle (note 2), Ch. 5. See also Guilfoyle on Art. 108 MN 3. 7 This follows from the rule that consent precludes wrongfulness: ILC, Responsibility of States for Internationally Wrongful Acts, GA Res. 56/83 of 12 December 2001, Annex (Art. 20 ASR); see also ECtHR, Medvedyev v. France, Judgment of 29 March 2010, paras. 10 and 40, available at: http://hudoc.echr.coe.int/hudoc/. 8 Myres McDougal/William Burke, The Public Order of the Oceans (1962), 875.

768

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Right of visit

4–7

Art. 110

By virtue of Art. 58 (2), the present article applies in the exclusive economic zone 4 (EEZ).

II. Historical Background Art. 110 can trace its origins to Art. 22 of the 1958 Geneva Convention on the High Seas 5 (High Seas Convention), which was in turn based on the International Law Commission’s (ILC) Articles concerning the Law of the Sea of 1956.9 Both the High Seas Convention and the ILC Articles contained a more limited statement of the right of visit encompassing only suspicion of piracy, the slave trade and cases where the suspect vessel ‘though flying a foreign flag or refusing to show its flag’ is suspected of being ‘of the same nationality as the warship’.10 The ILC appeared to consider that this list was a codification of international law as it stood at 1956, in suggesting that although ‘a merchant ship can [generally] only be boarded on the high seas by a warship flying the same flag […] [i]nternational law […] admits certain exceptions to this rule, namely, cases where there is reasonable ground for suspecting’ piracy, slave trading, or that the vessel is of the same nationality as the boarding warship’.11

The ILC thus appears to have taken the view that international law already contained such an exception. A notable omission from the High Seas Convention and UNCLOS is the right of visit in 6 the case suspected of offences against the International Convention for the Protection of Submarine Telegraph Cables (see � Arts. 112–115).12 That right continues to operate as among the parties to the 1884 Convention by virtue of Art. 311 (2) UNCLOS.13 Various proposals modifying the 1958 High Seas Convention drafting were put forward in 7 the course of UNCLOS III. Proposals to include vessels suspected of smuggling narcotic drugs notably failed.14 The addition of unauthorised broadcasting (� Art. 109) was first proposed in 1975.15 Vessels ‘without nationality’ (stateless vessels) were also first proposed for inclusion in 1975.16 It has been suggested that a right of visit regarding stateless vessels was ‘uncontroversial’ as early as 1845 and its omission from the High Seas Convention was probably an oversight.17 A third change made in 1975 was to replace the High Seas Convention’s reference in Art. 22 (1) to ‘a foreign merchant ship’ with the formula ‘a foreign ship, other than a ship entitled to complete immunity in accordance with articles 95 and 96’; this was done in order make it clear that the right of visit applied equally to ‘government ships on commercial service’.18

9

ILC Law of the Sea Articles with Commentaries (note 1), 22 (Art. 22) (emphasis added). Art. 22 High Seas Convention. 11 ILC Law of the Sea Articles with Commentaries (note 1), 24 (Art. 29). 12 Art. 10 International Convention for the Protection of Submarine Telegraph Cables, 14 March 1884, CTS 163, 241; see further Daniel P. O’Connell, The International Law of the Sea, vol. II (1984), 820–823. 13 See further Matz-Lu ¨ ck on Art. 311. 14 Nordquist/Nandan/Rosenne (note 8), 240–244; Guilfoyle on Art. 108 MN 6. 15 Nordquist/Nandan/Rosenne (note 8), 241. This inclusion was objected to by Israel: Ibid., 243 and cf. 234– 235. See further Guilfoyle on Art. 107 MN 2–4. 16 Nordquist/Nandan/Rosenne (note 8), 240. 17 Ivan A. Shearer, Problems of Jurisdiction and Law Enforcement against Delinquent Vessels, ICLQ 35 (1986), 320, 336. 18 Nordquist/Nandan/Rosenne (note 8), 241. 10

Guilfoyle

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Art. 110

8–11

Part VII. High seas

III. Elements 1. ‘Right of visit’ The right of visit may be distinguished from or identified with a number of further concepts. Some authors distinguish between a ‘right of approach’ (‘droit d’approche’) and a ‘right of enquiry’ (‘droit d’enqueˆte du pavillon’).19 Contemporary military manuals may also refer to ‘interdiction’.20 The ‘right of approach’ reflects the fact that it is not unlawful for a government vessel to draw near a foreign vessel on the high seas to observe its flag or national markings. 21 However, given improvements in technology it is no longer necessary to make a close approach to conduct such an operation.22 Art. 110 treats the distinct ‘right of enquiry’ or ‘right of visit’: the power of a warship or military aircraft (or other vessels on government service as defined in paragraph 5) to board a foreign vessel, inspect its papers, question those aboard and possibly search it. ‘Interdiction’ may refer either to the subsequent arrest of a vessel and those aboard, or may describe both the right of visit and any enforcement action. 23 As noted, under paragraphs (4) and (5), these powers may also be exercised by ‘military aircraft’ or other vessel or aircraft ‘duly authorized’ and clearly ‘identifiable as being on government service’ 24. 9 The right of visit, then, consists of two steps: boarding and inspection of papers, and then further search. Under Art. 110 (1) a State vessel has a right, upon reasonable suspicion that a vessel engaged falls within a listed activity or status, to verify that ‘ship’s right to fly its flag’. The right of visit is to be exercised by ‘send[ing] a boat under the command of an officer to the suspected ship’. As Art. 110 (2) contains no definition of officer, ‘account must be taken of […] different national practices’; and a senior petty officer or warrant officer would be sufficient.25 The suspect vessel is not required to send a boat out to the warship, as this would unnecessarily risk a ship’s papers being lost.26 10 In the first instance a boarding party may only inspect the suspect vessel’s documents (� Art. 92 (2)) and then, ‘[i]f suspicion remains’ it may proceed to search (‘further examin[e]’) the vessel, although ‘with all possible consideration.’27 While this describes a strictly sequential process (inspection of papers, then search) in many situations a boarding party may conduct a preliminary security sweep to ascertain that there are no active threats to their safety aboard. It is often held that searches under Art. 110 must not ‘be used for purposes other than those which warranted stopping the ship’,28 but it is inconceivable that this would prohibit a State from making use of knowledge of other illicit activities discovered or alerting the vessel’s flag State of such. 11 The right of visit does not of itself imply any further powers of law enforcement beyond those powers of visit, inspection and search contained in Art. 110. Powers of detention and arrest must be found elsewhere in the Convention (e. g. Arts. 105, 109 and 111) or must be granted by the flag State of the vessel subjected to visit and inspection. 8

19

Gidel (note 1), 289–300; Laurent Lucchini/Michel Voelckel, Droit de la mer, vol. II (1996), 124–125. For example: US Navy, The Commanders’ Handbook on the Law of Naval Operations (2007), paras. 3.11.3.2, 3.11.4.2-3, and 4.4.5. 21 O’Connell (note 12), 802–803. 22 Herman Meijers, The Nationality of Ships (1967), 82–83 (No. 1); Gidel (note 1), 294. 23 Guilfoyle (note 2), 4–5. 24 See Guilfoyle on Art. 107 MN 6. 25 Nordquist/Nandan/Rosenne (note 6), 245; see also Art. 29. 26 ILC Law of the Sea Articles with Commentaries (note 1), 30 (Art. 46). 27 Art. 110 (2). 28 Nordquist/Nandan/Rosenne (note 6), 245; ILC Law of the Sea Articles with Commentaries (note 1), 30 (Art. 46); cf. Philipp Wendel, State Responsibility for Interferences with the Freedom of Navigation in Public International Law (2007), 51. 20

770

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Right of visit

12–15

Art. 110

2. ‘shall be compensated’ Art. 110 (3) provides that if the suspicions initially justifying the exercise of a right of 12 visit prove unfounded in fact, the vessel inspected ‘shall be compensated for any loss or damage … sustained’. This could encompass financial loss through delay, as well as any damage resulting from search. A similar duty is found elsewhere in UNCLOS (see e. g. � Art. 106; Art. 111 (8)). The duty here is to compensate the vessel itself. This obligation to compensate ‘the ship’ (i. e. the interests in the ship) may extend to natural persons aboard, the owner and the bareboat charterer, although it might not include cargo owners.29 The rule reflects general agreement that a State exercises a right of visit at its own risk, strict liability being justified in order to deter abuse. 30 The entitlement to compensation only arises ‘provided that the ship boarded has … committed’ no act justifying the initial suspicions. In the Marianna Flora case, a vessel wrongly suspected of piracy was not entitled to compensation as it had fired on a US warship (in mistaken selfdefence), thus giving the appearance of being a pirate vessel. 31 Liability does not require unlawful or excessive action (� Art. 232).

3. Instances of the right of visit As noted, the right of visit is limited to specific instances. The three cases where a truly 13 universal right exists are: piracy (not further discussed here, see � Arts. 100–107); the slave trade; and vessels without nationality (stateless vessels). Two further cases where only certain States may intervene are: unauthorised high seas broadcasting; and vessels that, despite showing the markings of a foreign State, are in reality of the same nationality as the warship. Regarding the slave trade, it was not obvious that a right of visit existed in customary 14 international law prior to the High Seas Convention,32 although it is generally accepted that such a customary right has come to exist following that Convention.33 UNCLOS contains no definition of slavery. The definition generally accepted as stating the relevant customary international law34 is the 1926 Slavery Convention definition, which requires the exercise of rights associated with ownership over a person.35 UNCLOS also contains no express right to seize a slaving vessel and arrest those in charge, 36 suggesting a warship may only report discovered offences to the flag State of the vessel engaged in slavery. Flag States have an obligation to prevent the use of their vessels in slave trading.37 While the right of visit over vessels suspected of being without nationality is uncontrover- 15 sial,38 UNCLOS is silent as to whether a genuinely stateless vessel can be seized by the visiting warship and subjected to the law of its flag State.39 There are two opposing views. The first is

29 Wendel (note 28), 93; ITLOS, The M/V ‘Saiga’ (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgement of 1 July 1999, ITLOS Reports (1999), 7 (paras. 106–107); see also Meijers (note 19), 25 (No. 2). 30 ILC Law of the Sea Articles with Commentaries (note 1), 30 (Art. 46). 31 The Marianna Flora, 24 U.S. (11 Wheaton) 1 (1826), 42. 32 Art 22 High Seas Convention. 33 Guilfoyle (note 2), 75. 34 ICTY Trial Chamber, The Prosecutor v. Dragoljub Kunarac, ICT-96-23-T, Judgment of 22 February 2001, paras. 519–520, available at: http://icty.org/x/cases/kunarac/tjug/en/kun-tj010222e.pdf. 35 Art. 1 Convention to Suppress the Slave Trade and Slavery (Slavery Convention), LNTS 60, 253. See further Guilfoyle on Art. 99 MN 6. 36 Whether such a right exists in customary law is uncertain, cf. Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 212 and Robert Reuland, Interference with Non-National Ships on the High Seas: Peacetime Exceptions to the Exclusivity Rule of Flag State Jurisdiction, Vand. J. Transnat’l L 22 (1989), 1161, 1195–1196; Meijers (note 22), 85. 37 See further Guilfoyle on Art. 99 MN 1–2. 38 Shearer (note 17), 336. 39 Lucchini/Voelckel (note 19), 81 and 147.

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Art. 111

Part VII. High seas

that a stateless vessel may be arrested by any State as it enjoys the protection of none. 40 The second holds some further jurisdictional nexus is required to justify arrest. 41 Statelessness itself may arise in one of three ways: a vessel may lack any valid claim to nationality (� Art. 91); a vessel flying two or more flags according to convenience may be ‘assimilated’ to a stateless vessel (� Art. 92 (2)); or a vessel may be rendered ‘constructively’ stateless if it bears outward signs of nationality in a State which, on inquiry, refutes that claim of nationality. 42 16 Regarding unauthorised high seas broadcasting, Art. 110 only provides a right of visit to those States having jurisdiction over the activity under Art. 109. Such States include, inter alia, the State of nationality of the offender or vessel and States where the offending broadcast can be received. Art. 109 (4) authorises high seas law-enforcement action by such States. 17 Reference to a right of visit over a vessel which ‘though flying a foreign flag or refusing to show its flag’ is nonetheless suspected of being ‘of the same nationality as the warship’ is logical. In such cases the vessel is already subject to the exclusive jurisdiction of that flag State and may be visited under national law.

Article 111 Right of hot pursuit 1. 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. Such 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, and may only be continued outside the territorial sea or the contiguous zone if the pursuit has not been interrupted. It is not necessary that, at the time when the foreign ship within the territorial sea or the contiguous zone receives the order to stop, the ship giving the order should likewise be within the territorial sea or the contiguous zone. If the foreign ship is within a contiguous zone, as defined in article 33, the pursuit may only be undertaken if there has been a violation of the rights for the protection of which the zone was established. 2. 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. 3. 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. 4. Hot pursuit is not deemed to have begun unless the pursuing ship has satisfied itself by such practicable means as may be available that the ship pursued or one of its boats or other craft working as a team and using the ship pursued as a mother ship is within the limits of the territorial sea, or, as the case may be, within the contiguous zone or the exclusive economic zone or above the continental shelf. 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.

40 United States v. Marino-Garcia, 679 F.2 d 1373 (11th Cir. 1982) (US); Naim Molvan v. Attorney General for Palestine (The ‘Asya’) [1948] AC 351 (UK); US Naval Commander’s Handbook (note 20), para. 3.11.2.3; McDougal/Burke (note 5), 1084–1085. 41 Churchill/Lowe (note 36), 214. 42 That is, if a claim under Art. 91 has been refuted, a vessel then attempting to raise a second claim of nationality would become stateless under Art. 92. Cf. US Naval Commander’s Handbook (note 20), para. 3.11.2.4. On State practice, see Guilfoyle (note 2), 121, 124 and 249.

772

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Art. 111

Right of hot pursuit

5. The right of hot pursuit may be exercised only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect. 6. Where hot pursuit is effected by an aircraft: (a) the provisions of paragraphs 1 to 4 shall apply mutatis mutandis; (b) the aircraft giving the order to stop must itself actively pursue the ship until a ship or another aircraft of the coastal State, summoned by the aircraft, arrives to take over the pursuit, unless the aircraft is itself able to arrest the ship. It does not suffice to justify an arrest outside the territorial sea that the ship was merely sighted by the aircraft as an offender or suspected offender, if it was not both ordered to stop and pursued by the aircraft itself or other aircraft or ships which continue the pursuit without interruption. 7. The release of a ship arrested within the jurisdiction of a State and escorted to a port of that State for the purposes of an inquiry before the competent authorities may not be claimed solely on the ground that the ship, in the course of its voyage, was escorted across a portion of the exclusive economic zone or the high seas, if the circumstances rendered this necessary. 8. Where a ship has been stopped or arrested outside the territorial sea in circumstances which do not justify the exercise of the right of hot pursuit, it shall be compensated for any loss or damage that may have been thereby sustained. Bibliography: Craig H. Allen, The Doctrine of Hot Pursuit: A Functional Interpretation Adaptable to Emerging Maritime Law Enforcement, ODIL 20 (1989), 309–341; David H. Anderson, Freedoms of the High Seas in the Modern Law of the Sea, in: David Freestone/Richard Barnes/David Ong (eds.), The Law of the Sea: Progress and Prospects (2006), 327–346; Rachel Baird, Illegal, Unreported and Unregulated Fishing: An Analysis of the Legal, Economic and Historical Factors Relevant to Its Development and Persistence, Melb. J. Int’l L. 5 (2004), 299–334; Hugo Caminos, Hot Pursuit, MPEPIL, available at: http://www.mpepil.com; Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); William C. Gilmore, Hot Pursuit: The Case of R v Mills and Others, ICLQ 44 (1995), 949–958; William C. Gilmore, Hot Pursuit and Constructive Presence in Canadian Law Enforcement, Marine Policy 12 (1988), 105–111; Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (2009); Natalie Klein, Maritime Security and the Law of the Sea (2011); Myres S. McDougal/William T. Burke, The Public Order of the Oceans (1962); Erik J. Molenaar, Multilateral Hot Pursuit and Illegal Fishing in the Southern Ocean: The Pursuits of the Viarsa 1 and the South Tomi, IJMCL 19 (2004), 19–42; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995); Daniel P. O’Connell, The International Law of the Sea, vol. II (1984); Nicholas M. Poulantzas, The Right of Hot Pursuit in International Law (2nd edn. 2002) Documents: ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45 Cases: Commission of Enquiry established by the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of Denmark, The Red Crusader (Denmark v. United Kingdom), Award of 23 March 1962, ILR 35 (1967), 485; ITLOS, The ‘Volga’ Case (Russian Federation v. Australia), Judgment of 23 December 2002, ITLOS Reports (2002), 10; ITLOS, The M/V ‘Saiga’ (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment of 1 July 1999, ITLOS Reports (1999), 10; PCA, Arctic Sunrise Arbitration (Netherlands v. Russia), Merits, Award of 14 August 2015, available at: http://www.pcacases.com/web/view/21; R v. Sunila and Soleyman (1986) 28 DLR (4th) 450 (Canada); Tribunale di Napoli (District Court of Naples), Re Pulos, ILR 77 (1988), 587 (Italy); U.S.-Canadian Claims Commission, The S. S. I’m Alone (Canada v. United States), Award of 5 January 1935, RIAA III, 1609 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘law and regulations’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Limitations upon the right of hot pursuit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Constructive presence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. The nature of the signal to stop . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Continuous pursuit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. Wrongful exercise of the right of hot pursuit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. The use of force against pursued vessels . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8. Escort of vessels arrested in the territorial sea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Guilfoyle

1 2 4 4 6 9 10 11 12 13 14

773

Art. 111

1–2

Part VII. High seas

I. Purpose and Function 1

The right of hot pursuit balances a coastal State’s interest in the efficient enforcement of its laws with the general interest in high seas freedom of navigation.1 Thus, it was generally accepted by the end of the nineteenth century2 that ‘the right of hot pursuit allows a warship or military aircraft of a State to pursue a foreign ship which has violated that State’s laws within its internal waters or territorial sea and to arrest it on the high seas’. 3 In general, the right of hot pursuit consists of a coastal State’s right to enforce the laws applicable in waters under its sovereignty or jurisdiction against vessels suspect of having broken those laws, even once those vessels have fled onto the high seas. As an extraordinary grant of enforcement jurisdiction on the high seas, it is subject to a number of limitations, principally: an obligation to signal the pursued vessel with an order to stop, a requirement that pursuit be uninterrupted and a further requirement that pursuit cease if the pursued vessel enters another State’s territorial sea. UNCLOS codifies that right, and extends its application to maritime zones beyond the territorial sea. By virtue of both Art. 111 (1) and (2) and Art. 58 (2), the right of hot pursuit applies in all waters over which the coastal State has sovereignty or jurisdiction. The power, however, remains exceptional given the ordinarily exclusive jurisdiction of flag States on the high seas.4 Art. 111 (6) provides that hot pursuit may be commenced by aircraft so long as the aircraft giving the original order to stop remains actively engaged in the pursuit until another ship or aircraft able to effect an arrest joins the pursuit.

II. Historical Background 2

Art. 111 is adapted with few changes from Art. 23 of the 1958 Geneva Convention on the High Seas (High Seas Convention).5 This in turn closely followed the text of Art. 47 of the International Law Commission (ILC) Articles concerning the Law of the Sea, which drew on ‘article 11 of the regulations adopted by the Second Committee of The Hague Codification Conference in 1930.’6 The main changes between Art. 23 High Seas Convention and Art. 111 were the inclusion in the latter of: the present paragraph (2) dealing with the extension of the right to the exclusive economic zone (EEZ) and continental shelf; and the recognition of its application to archipelagic waters in paragraph (1). These do not appear to have been controversial inclusions. The wording of the present article was proposed by a group of States in 1974 and survived throughout the UNCLOS III negotiations effectively unaltered.7 It may be presumed that as hot pursuit is simply a corollary of a State’s right to exercise law-enforcement jurisdiction over its waters, its extension to new zones of sovereignty or jurisdiction was seen as self-evident. The separate provision made for the EEZ in Art. 111 (2) may be taken to represent its sui generis nature. (This despite the fact 1 Craig H. Allen, The Doctrine of Hot Pursuit: A Functional Interpretation Adaptable to Emerging Maritime Law Enforcement, ODIL 20 (1989), 309, 311–312. 2 Hugo Caminos, Hot Pursuit, MPEPIL, para. 4, available at: http://www.mpepil.com. 3 Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 214; The classic work is Nicholas M. Poulantzas, The Right of Hot Pursuit in International Law (2nd edn. 2002), 39 et seq. 4 See: Guilfoyle on Art. 92 MN 8–9, on Art. 105 MN 2 and on Art. 109 MN 12. 5 Art. 23 High Seas Convention. 6 ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 30; on earlier codification efforts see: Daniel P. O’Connell, The International Law of the Sea, vol. II (1984), 1078. 7 UNCLOS III, Statement of Activities of the Conference during its First and Second Sessions. UN Doc. A/ CONF.62/L. 8/Rev.1 (1974), OR III, 93, 133; the original proposal appears at UNCLOS III, Draft Article for Inclusion in the Chapter on the High Seas, UN Doc. A/CONF.62/C.2/L.66, OR III, 235 and was sponsored by Argentina, Australia, Chile, Colombia, Mexico, New Zealand and the US; David H. Anderson, Freedoms of the High Seas in the Modern Law of the Sea, in: David Freestone/Richard Barnes/David Ong (eds.), The Law of the Sea: Progress and Prospects (2006), 327, 343 attributes the proposal to New Zealand.

774

Guilfoyle

Right of hot pursuit

3–5

Art. 111

that the contiguous zone already represents a zone of limited jurisdiction where it may exercise under Art. 33 only rights of control rather than full sovereignty 8 and its inclusion with the territorial sea provision is clearly a matter of historical precedent rather than doctrinal purity.) There was, however, an alternative formulation proposed dealing with the EEZ to the effect that: ‘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. Such pursuit must be commenced when the foreign ship or one of its boats is within the internal waters or the territorial sea or the economic zone of the pursuing State, and may only be continued outside the territorial sea or the economic zone if the pursuit has not been interrupted. The right of hot pursuit ceases as soon as the ship pursued enters the territorial sea or the economic zone of its own country or the territorial sea or the economic zone of a third State.’ 9

This clumsily drafted alternative formula would clearly have greatly restricted the right of hot pursuit (i. e. by requiring it to terminate if the fleeing vessel crossed into another State’s EEZ). It did not survive into the Informal Single Negotiating text of 1975. Otherwise, the changes made from the High Seas Convention are largely matters of style and crossreferencing.10 Art. 111 and its precursors were not pure exercises in codification. When the ILC took up 3 the topic, the use of aircraft in hot pursuit was novel. 11 In UNCLOS, as noted above, the right was expanded in light of the broader range of maritime zones acknowledged. It is also possible that the acceptance of ‘extensive constructive presence’ (discussed below) was a progressive development at the time.12 Nonetheless, the treaty drafting may be thought largely to have added detail to pre-existing customary rules rather than having radically changed them.13

III. Elements 1. ‘law and regulations’ The historical law of hot pursuit allowed pursuit to be commenced against a foreign ship 4 violating the laws and regulations of a coastal State, if the pursuit commenced in waters subject to the coastal States’ sovereignty. This ‘basic approach’ is in preserved in Art. 111, in respect of the laws and regulations applicable in ‘the internal waters, archipelagic waters or territorial sea of a coastal State.’14 UNCLOS also recognises hot pursuit of vessels violating a State’s ‘customs, fiscal, 5 immigration or sanitary laws and regulations’ (see � Art. 33); or its ‘laws or regulations pertaining to a coastal state’s EEZ […] [and] continental shelf, including safety zones around continental shelf installations’.15 One must be cautious about the scope of the right in the contiguous zone. In that zone State powers of enforcement (the power to punish violations of relevant laws) only arise where those violations have already occurred or been caused within its territory or territorial sea (� Art. 33 (1)(b)).16 8

See Khan on Art. 33 MN 22–25. UNCLOS III, Statement Activities of the Conference during its First and Second Sessions. UN Doc. A/ CONF.62/L.8/Rev.1 (1974), OR III, 93, 133–134. 10 See: Poulantzas (note 3), xii-iii; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995), 249–256. 11 ILC Law of the Sea Articles with Commentaries (note 6), 30 (Art. 47). 12 Prior customary law on point being uncertain: William C. Gilmore, Hot Pursuit and Constructive Presence in Canadian Law Enforcement, Marine Policy 12 (1988), 105, 110. 13 O’Connell (note 6), 1079. 14 Nordquist/Nandan/Rosenne (note 10), 256. 15 Allen (note 1), 314. On hot pursuit from 500 m safety zones surrounding continental shelf installations see: PCA, Arctic Sunrise Arbitration (Netherlands v. Russia), Merits, Award of 14 August 2015, paras. 248–251. 16 Churchill/Lowe (note 3), 137. 9

Guilfoyle

775

Art. 111

6–8

Part VII. High seas

2. Limitations upon the right of hot pursuit UNCLOS places several conditions on the exercise of hot pursuit. First, a coastal State’s ‘competent authorities’ must have ‘good reason to believe’ that the vessel has violated applicable laws or regulations. Both terms are undefined in UNCLOS. In practice, the ‘competent authorities’ are likely to be coast guard or fisheries agencies. It is not apparent if ‘good reason to believe’ relevant laws have been violated is a different standard from having ‘reasonable ground[s] for suspecting’ illicit activity under Art. 110 (1). ITLOS, however, indicated in M/V Saiga (No 2) Case that information which could raise ‘no more than a suspicion’ is not sufficient grounds for commencing hot pursuit. 17 ‘Pursuit must be begun while the [suspect] ship’ is within the relevant maritime zone and commence with ‘the giving within range of the ship of a visual or auditory signal to stop’18; although the signalling ship or aircraft need not itself be within the relevant zone. 19 The pursuing craft must also have satisfied itself, given available and practicable means, that the vessel was within the relevant zone at the time pursuit commenced. In the Arctic Sunrise Arbitration it was said of this formulation that ‘the location of the foreign ship at the time of the first stop order should not be evaluated with the full benefit of hindsight, but rather looked at from the perspective of the pursuing ship.’20 The pursuit must then be ‘hot’ (meaning ‘immediate’21) and uninterrupted. This requirement may be flexibly interpreted;22 but even if pursuit need not be instant, ‘unreasonable delay […] will cast doubt on the pursuit’s legitimacy.’23 Only ‘warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service’ may carry out the pursuit.24 This includes ‘police patrol boats’, ‘customs inspection ships’25 and fisheries inspection vessels. 7 The right ‘ceases as soon as the ship pursued enters the territorial sea of its own State or of a third State’ (Art. 111 (3)). As a consequence of a State’s territorial sovereignty extending into its territorial sea, a government vessel may not exercise law-enforcement jurisdiction within the territory or territorial waters of another State without that State’s consent. Such consent may be provided in advance in treaties. The US has, for example, entered numerous bilateral treaties in the Caribbean region allowing suspect vessels encountered on the high seas to be pursued into partner States’ territorial seas. 26 8 Several points raised by the UNCLOS text require further elaboration, including: the concept of ‘constructive presence’; the nature of the signal to stop; what may ‘interrupt’ a pursuit (including loss of contact and continuing pursuit by ‘relay’); and duties of compensation. Customary international law governs the use of force in such operations, UNCLOS being silent on the point. 6

17 ITLOS, The M/V ‘Saiga’ (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment of 1 July 1999, ITLOS Reports (1999), 10 (para. 147). 18 See infra, MN 10. 19 Churchill/Lowe (note 3), 215; covering ‘patrol vessels cruising for police purposes just outside the territorial sea’ ILC Law of the Sea Articles with Commentaries (note 6), 30 (Art. 47). 20 Arctic Sunrise Arbitration (note 15), para 276, available at: http://www.pcacases.com/web/view/21. In accord: Natalie Klein, Maritime Security and the Law of the Sea (2011), 110; see also ITLOS, The ‘Volga’ Case (Russian Federation v. Australia), Application for Prompt Release, Judgment of 23 December 2002, ITLOS Reports (2002), para. 33 (calculation error resulted in pursued vessel first being signalled outside the EEZ). See contra Allen (note 1), 318 (arguing it is not a subjective good faith determination and may be subject to objective review). 21 Poulantzas (note 3), 44. 22 See infra, MN 11. 23 Allen (note 1), 318. 24 The same formula is used in Arts. 107, 110 (5), 224. 25 Nordquist/Nandan/Rosenne (note 10), 258. 26 Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (2009), 92–94. See also: Art. 13 (2) Agreement on Strengthening Implementation of the Niue Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South Pacific [2014] ATNIF 25, available at: http://www.austlii.edu.au/cgi-bin/sinodisp/ au/other/dfat/treaties/ATNIF/2014/25.html.

776

Guilfoyle

Right of hot pursuit

9–11

Art. 111

3. Constructive presence The doctrine of ‘constructive presence’ extends the right of hot pursuit to cover mother 9 ships ‘hovering’ outside coastal State waters while their small boats conduct offences within coastal State jurisdiction.27 Under UNCLOS, a coastal state may commence pursuit of a vessel beyond its territorial waters (or contiguous zone, EEZ or continental shelf) following offences completed within its jurisdiction by the vessel’s small boats or other craft ‘working as a team’ with it (Art. 111 (4)).28 There has been some debate between ‘simple’ and ‘extensive’ constructive presence.29 The ‘simple’ view held constructive presence only arose if the mother ship’s own boats entered coastal State jurisdiction. The extensive view, that vessels may come out from shore to a mother ship on the high seas, appears to fall within Art. 111 (4) (referring to ‘one of its boats’ or ‘other craft working as a team and using the ship pursued as a mother ship’) and is accepted in case law.30 It is sufficient that one of the craft ‘working as a team’ with the mother ship is within the relevant maritime zone when pursuit is commenced.31

4. The nature of the signal to stop The Convention requires hot pursuit be preceded by a ‘visual or auditory signal to stop 10 given at a distance which enables it to be seen or heard by the [suspect] ship’. This drafting, taken literally, serves to ‘exclude signals given at a great distance and transmitted by wireless’ and was chosen as the ILC feared ‘abuse’ of the right if a signal to stop could be given by radio ‘at any distance’.32 While the point is debateable, the better view is that in light of technological advances signalling by radio is now acceptable and this was the view taken in the Arctic Sunrise Arbitration.33 Certainly in the well-known cases of Australia’s hot pursuit of the vessels SOUTH TOMI in 2001 and VOLGA in 2002 (both suspected of illegal fishing in Australian EEZs), the signal to stop was given by radio and does not appear to have been protested by the flag States (Togo and Russia, respectively). 34 ITLOS did not directly consider the permissibility of radio signals in M/V Saiga (No. 2) Case but did appear to indicate that all signals should be given within visual/auditory range of the pursued vessel.35

5. Continuous pursuit Pursuit must be continuous: ‘[i]f pursuit is interrupted’ the right terminates; however, ‘this 11 rule must be applied with some flexibility.’36 Thus, ‘short gaps in observations due to horizon distance, weather, darkness, or other intervening causes do not constitute an interruption’ nor would the enforcement vessel stopping ‘to pick up evidence left behind by the fleeing 27

O’Connell (note 6), 1093–1094. Arts. 111(1) and (4). 29 O’Connell (note 6), 1092–1093. 30 William C. Gilmore, Hot Pursuit: The Case of R v Mills and Others, ICLQ 44 (1995), 949, 954–955; R v. Sunila and Soleyman, [1986] 28 DLR (4th) 450 (Canada); Tribunale di Napoli (District Court of Naples), Re Pulos, ILR 77 (1988), 587 (Italy). 31 See Gilmore (note 12); Gilmore (note 30); Churchill/Lowe (note 3), 215–216. 32 ILC Law of the Sea Articles with Commentaries (note 6), 30 (Art. 47). 33 Arctic Sunrise Arbitration (note 15), paras. 259–260. In accord: Churchill/Lowe (note 3), 216; Allen (note 1), 319; contra, Poulantzas (note 3), 220–221. Anderson would accept such signals where there is evidence the signals were given and received Anderson (note 7), 344 and see his separate opinion in the M/V ‘Saiga’ (No. 2) Case (note 15), 139. 34 Rachel Baird, Illegal, Unreported and Unregulated Fishing: An Analysis of the Legal, Economic and Historical Factors Relevant to Its Development and Persistence, Melb. J. Int’l L. 5 (2004), 299, 328; Guilfoyle (note 26), 150. 35 The M/V ‘Saiga’ (No. 2) Case (note 17), paras. 143 and 147. 36 O’Connell (note 6), 1091. 28

Guilfoyle

777

Art. 111

12–13

Part VII. High seas

vessel’.37 The question has also arisen whether pursuit is interrupted if visual contact is lost and radar contact is maintained.38 The US ‘takes the position that hot pursuit is not interrupted merely because the enforcing craft temporarily loses sight of the pursued vessel or [even] radar contact with it’;39 Australian statute law adopts the same approach.40 In the Arctic Sunrise Arbitration Russia was considered to have discontinued pursuit when its coast guard vessel LADOGA, after an ‘initial flurry of orders, threats, and warning shots’, made no further attempt at boarding the ARCTIC SUNRISE for 33 continuous hours but merely ‘shadowed’ the vessel which, for its part, did not attempt to flee. 41 Art. 111 (6) also refers to pursuit being commenced by one aircraft and later being taken over by ‘a ship or another aircraft of the coastal State’. Despite the lack of express reference, it is generally accepted that such pursuit by ‘relay’ may also involve one ship taking over from another. 42 Thus, ‘[t]he ship finally arresting the ship pursued need not necessarily be the same […] one which began the pursuit, provided that it has joined in the pursuit and has not merely effected an interception.’43 UNCLOS does not expressly allow other States to assist in the pursuit, but this has occurred in practice without protest. In the Australian hot pursuit of both the S OUTH TOMI (for 14 days in 2001) and the VIARSA 1 (for 21 days in 2003), involved other States.44 The Togo registered SOUTH TOMI was eventually boarded by Australian officers embarked upon a South African vessel.45 The Uruguayan flagged VIARSA 1 was only stopped with the aid of UK and South African government vessels and was boarded by a team of Australian and South African officers.46

6. Wrongful exercise of the right of hot pursuit 12

In the event of wrongful hot pursuit (i. e. one commenced ‘in circumstances which do not [prove to] justify’ it), the pursuing State must compensate the ship for ‘any loss or damage […] thereby sustained’.47

7. The use of force against pursued vessels 13

The use of force in arresting a pursued vessel is governed by customary international law. ITLOS found in M/V ‘Saiga’ (No. 2) Case that international law: ‘requires that the use of force must be avoided as far as possible and, where … unavoidable, it must not go beyond what is reasonable and necessary in the circumstances. … The normal practice … is first 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 firing 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. Even then, appropriate warning must be issued … and all efforts should be made to ensure that life is not endangered.’48

37

Allen (note 1), 320. Myres McDougal/William Burke, The Public Order of the Oceans (1962), 897 (accepting contact by radar alone); Poulantzas (note 3), 212 (No. 19) (not accepting it). 39 Allen (note 1), 320. 40 Sect. 87(2) and (3) Fisheries Management Act 1991 (Australia). 41 Arctic Sunrise Arbitration (note 15), paras. 270–5. (The case arose from an attempt by Greenpeace protestors to board an oil platform in the EEZ and in the relevant period the LADOGA seemed principally concerned with maintaining a position between the ARCTIC SUNRISE and the platform. See para. 272). 42 Allen (note 1), 320. 43 ILC Law of the Sea Articles with Commentaries (note 6), 31 (Art. 47). 44 See generally: Erik J. Molenaar, Multilateral Hot Pursuit and Illegal Fishing in the Southern Ocean: The Pursuits of the Viarsa 1 and the South Tomi, IJMCL 19 (2004), 19. 45 Ibid., 22. 46 Ibid., 21. 47 On this duty, see Guilfoyle on Art. 110 MN 12, where similar language is used. 48 The M/V ‘Saiga’ (No. 2) Case (note 17), paras. 155–156. 38

778

Guilfoyle

Right to lay submarine cables and pipelines

1–2

Art. 112

The Tribunal referred to cases including the S.S. I’m Alone and Red Crusader to support this conclusion, as well as some limited treaty law.49

8. Escort of vessels arrested in the territorial sea Finally, Art. 111 (7) deals with the analogous but separate case where a vessel arrested in 14 the territorial sea is escorted to port on a journey crossing onto the high seas. In such cases the coastal State does not lose its right of arrest. The ILC noted: ‘it would be illogical to recognize the right of the pursuing vessel to seize a ship on the high seas and escort it to port across the high seas’ but refuse to recognise the same right regarding a vessel ‘apprehended in the territorial sea’.50

Article 112 Right to lay submarine cables and pipelines 1. All States are entitled to lay submarine cables and pipelines on the bed of the high seas beyond the continental shelf. 2. Article 79, paragraph 5, applies to such cables and pipelines. Bibliography: Gilbert Gidel, Le droit international public de la mer: le temps de paix, vol. I (1932); Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995); Sabine von Schorlemer, Telecommunications, International Regulation, MPEPIL, available at: http://www.mpepil.com Documents: GA Res 65/37 of 7 December 2010; ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘submarine cables and pipelines’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘the bed of the high seas beyond the continental shelf’ . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Application of Art. 79 (5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 7 7 9 12

I. Purpose and Function Submarine cables and pipelines have been used, especially in telecommunications, since the 1 1840s.1 In 2010 the UN General Assembly recognized ‘that fibre optic submarine cables transmit most of the world’s data and communications and hence are vitally important to the global economy and the national security of all States’ and called upon ‘states to take measures to protect [them] … in accordance with international law, as reflected’ in UNCLOS. 2 Art. 112 introduces four articles on submarine cables and pipelines (hereafter ‘submarine 2 cables’) laid beyond national jurisdiction, following from the freedom to lay submarine cables 49 U.S.-Canadian Claims Commission, The S. S. I’m Alone (Canada v. United States), Award of 5 January 1935, RIAA III, 1609; Commission of Enquiry established by the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of Denmark, The Red Crusader (Denmark v. United Kingdom), Award of 23 March 1962, ILR 35 (1967), 485; Art. 22 (1)(f) UN Fish Stocks Agreement; See Guilfoyle (note 26), 271–293. 50 ILC Law of the Sea Articles with Commentaries (note 6), 31 (Art. 47). 1 For a concise history see Sabine von Schorlemer, Telecommunications, International Regulation, MPEPIL, paras. 12–16, available at: http://www.mpepil.com; Gilbert Gidel, Le droit international public de la mer: le temps de paix, vol. I (1932), 416 et seq. 2 GA Res 65/37 of 7 December 2010, preamble and para. 121 (adopted by 123 votes to 1 with 2 abstentions).

Guilfoyle/Miles

779

Art. 112

3–6

Part VII. High seas

on the high seas found in Art. 87 (1)(c). The present article applies only to the ‘high seas beyond the continental shelf’; and Art. 87 (1)(c) makes the freedom to lay submarine cables subject to the continental shelf regime of Part VI. The regime set out in Arts. 112–115 is thus not self-contained. Relevant provisions governing other maritime zones include: Art. 21 (1)(c) (on the territorial sea); Art. 51 (2) (on archipelagic States); Art. 58 (1) (the high seas freedom to lay submarine cables and pipelines applies in the exclusive economic zone (EEZ)); and Art. 79 (on the continental shelf). Submarine cables are also listed in Art. 297 (1)(a) as a subject-matter covered by the UNCLOS compulsory dispute settlement system.

II. Historical Background 3

Art. 61 of the International Law Commission (ILC) Articles concerning the Law of the Sea reads:3 ‘1. All States shall be entitled to lay telegraph, telephone or high-voltage power cables and pipelines on the bed of the high seas. 2. Subject to its right to take reasonable measures for the exploration of the continental shelf and the exploitation of its natural resources, the coastal State may not impede the laying or maintenance of such cables or pipelines.’

Paragraph (1) has clearly been retained in the present Article, with minor changes to the language including a more general reference to ‘submarine cables’ as opposed to a potentially closed list. Paragraph (2) of the ILC drafting is now found in Art. 79 (2) of UNCLOS. The ILC suggested that its paragraph 1 was taken from Art. 1 International Convention for the Protection of Submarine Telegraph Cables 1884.4 However, that convention contains no express right to lay cables. 4 The 1958 Geneva Convention on the High Seas (High Seas Convention) largely adopted the ILC’s drafting as Arts. 26 (1) and (2). A paragraph 3 was added: ‘When laying such cables or pipelines the State in question shall pay due regard to cables or pipelines already in position on the seabed. In particular, possibilities of repairing existing cables or pipelines shall not be prejudiced.’

This provision, now found in Art. 79 (5), is incorporated into Art. 112 (2) by reference. 5 5 Notwithstanding these broad similarities, the submarine cable and pipeline provisions were the subject of detailed consideration both at meetings of the Sea-Bed Committee during the 1970s, and also during UNCLOS III.6 Although the default UNCLOS III position at the time of the second session (1974) basically repeated Art. 26 of the High Seas Convention, 7 the consolidated text prepared by the members of the informal consultative group on the high seas at the third session (1975) included a footnote which highlighted that the draft was without prejudice to legal interplay between the high seas and the EEZ, indicating that a paramount concern of the Conference was to establish how the high seas provisions would relate to other maritime zones.8 6 The initial model of Art. 26 of the High Seas Convention also needed to be modified to take account of the crystallisation of the continental shelf as a legal concept in the law of the 3 ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 38. 4 International Convention for the Protection of Submarine Telegraph Cables, 16 April 1884, CTS 163, 241; its basic principles ‘reflect existing international law’: ILC Law of the Sea Articles with Commentaries (note 3), 38 (Art. 61). 5 See infra, MN 12; Englender on Art. 79 MN 28. 6 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995), 263–265. 7 UNCLOS III, Statement of the Activities of the Conference during its First and Second Sessions, UN Doc. A/ CONF.62/L.8/Rev.1 (1974), OR III, 93 (Annex II, Appendix I, Provision 150). 8 Nordquist/Nandan/Rosenne (note 6), 263.

780

Guilfoyle/Miles

Right to lay submarine cables and pipelines

7–12

Art. 112

sea.9 The addition of the words ‘beyond the continental shelf’ to the provision reflects the notion that the shelf had now been defined as a maritime zone in its own right (� Art. 76), granting jurisdiction over the laying of submarine cables and pipelines in such cases to the relevant coastal state.

III. Elements 1. ‘submarine cables and pipelines’ Art 112 (1) reiterates that all States’ have a right to lay submarine cables/pipelines (see 7 Art. 87 (1)(c)). ‘All States’ should be read expansively to include a State’s nationals; as in practice most submarine cables ‘are privately owned, and laid by corporations’. 10 The ILC considered that ‘submarine cables’ included not only ‘telegraph and telephone cables, but also […] high-voltage power cables.’11 Unlike its commentary on the meaning of ‘submarine cables’, the ILC did not venture a 8 separate definition for ‘pipelines’. This is probably reflective not so much of an oversight but of the self-evident definition of the term, rendered in the Oxford English Dictionary as ‘a long pipe, typically underground, for conveying oil, gas, etc. over long distances’. The term has not been the subject of judicial consideration, but is unlikely to prove problematic if it were.

2. ‘the bed of the high seas beyond the continental shelf’ As mentioned above, Art. 112 applies only in areas beyond national jurisdiction; areas 9 within national jurisdiction are governed by other UNCLOS provisions. This is achieved in part by the inclusion of the words ‘on the bed of the high seas beyond the continental shelf’ into the provision. The first part of the restriction, ‘the bed of the high seas’ is somewhat redolent of the Art. 1 10 (1) definition of ‘the Area’, being ‘the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction’, as well as the Art. 86 limitation on the application of the provisions of Part VII: ‘[t]he provisions of this Part 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.’

The second part of the restriction, ‘beyond the continental shelf’ obviously contemplate 11 cases where an outer continental shelf claim (under � Art. 76 (4)) extends a State’s territorial jurisdiction beyond the 200 NM limit.

3. Application of Art. 79 (5) Art. 112 (2) incorporates by reference Art. 79 (5), which with respect to submarine cables 12 or pipelines on the continental shelf provides that States should ‘have due regard’ to submarine cables and pipelines. Thus, the obligation of due diligence on those States laying submarine cables and pipelines on the continental shelf vis-a`-vis cables and pipelines already in situ is extended to similar activities on the seabed of the high seas.

9

Ibid., 264. Ibid. ILC Law of the Sea Articles with Commentaries (note 3), 24 (Art. 27).

10 11

Guilfoyle/Miles

781

Art. 113

1

Part VII. High seas

Article 113 Breaking or injury of a submarine cable or pipeline Every State shall adopt the laws and regulations necessary to provide that the breaking or injury by a ship flying its flag or by a person subject to its jurisdiction of a submarine cable beneath the high seas done wilfully or through culpable negligence, in such a manner as to be liable to interrupt or obstruct telegraphic or telephonic communications, and similarly the breaking or injury of a submarine pipeline or high-voltage power cable, shall be a punishable offence. This provision shall apply also to conduct calculated or likely to result in such breaking or injury. However, it shall not apply to any break or injury caused by persons who acted merely with the legitimate object of saving their lives or their ships, after having taken all necessary precautions to avoid such break or injury. Bibliography: Robert Beckman, Protecting Submarine Cables from Intentional Damage – the Security Gap, in: Douglas R. Burnett/Robert Beckman/Tara M. Davenport (eds.), Submarine Cables: The Handbook of Law and Policy (2014), 281–297; Gilbert Gidel, Le droit international public de la mer: le temps de paix, vol. I (1932); Mick P. Green/Douglas R. Burnett, Security of International Submarine Cable Infrastructure: Time to Rethink?, in: Myron H. Nordquist/Ru¨diger Wolfrum/John Norton Moore/Rona´n Long (eds.), Legal Challenges in Maritime Security (2008), 557–584; Stuart Kaye, International Measures to Protect Oil Platforms, Pipelines, and Submarine Cables from Attack, Tulane Maritime Law Journal 31 (2007), 377–423; Natalie Klein, Maritime Security and the Law of the Sea (2011); L. Dolliver M. Nelson, Submarine Cables and Pipelines, in: Rene´-Jean Dupuy/Daniel Vignes (eds.), A Handbook on the New Law of the Sea, vol. II (1991), 977–988; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995); Daniel P. O’Connell, The International Law of the Sea, vol. II (1984); Eric Wagner, Submarine Cables and Protections Provided by the Law of the Sea, Marine Policy 19 (1995), 127–136 Documents: ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4–12; ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45; International Cable Protection Committee, Fishing and Submarine Cables: Working Together (2nd edn. 2009) Cases: American Telephone & Telegraph Co v. M/V Cape Fear, 967 F.2 d 864 (3rd Circ. 1992) (US); Socie´te´ Telus Communications and Ors. v. Peracomo Inc, [2012] FC 199 (Canada); ICJ, Questions Related to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment of 20 July 2012, ICJ Reports (2012), 422 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Flag State Jurisdiction and Regulatory Efforts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘breaking of or injury to a submarine cable or pipeline’ . . . . . . . . . . . . . . . . . . . . . . . . 3. Art. 113 in Municipal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Scope of Art. 113 and Relationship with Other Provisions. . . . . . . . . . . . . . . . . . . . . .

1 2 4 4 7 10 12

I. Purpose and Function 1

Art. 113 serves to restrict those States competent to take action regarding damage to submarine cables and pipes beneath the high seas. International regulatory efforts regarding submarine cables ‘have focussed on the attribution of damage’ done to them; and the flag State of the offending vessel or the State of nationality of those responsible; no universal jurisdiction is created.1 Instead, the provision sets out the broad contours of a criminal offence, and directs that States incorporate it as such into their municipal law. However, the 1 L. Dolliver M. Nelson, Submarine Cables and Pipelines, in: Rene ´-Jean Dupuy/Daniel Vignes (eds.), A Handbook on the New Law of the Sea, vol. II (1991), 977, 982.

782

Guilfoyle/Miles

Breaking or injury of a submarine cable or pipeline

2–3

Art. 113

provision does not require that the penalties attending the offence be severe, or even that the offence be prosecuted (though prosecutions do in practice occur).

II. Historical Background The wording of Art. 113 is taken largely from Art. 27 1958 Geneva Convention on the 2 High Seas (High Seas Convention),2 which provided that: ‘Every State shall take the necessary legislative measures to provide that the breaking or injury by a ship flying its flag or by a person subject to its jurisdiction of a submarine cable beneath the high seas done wilfully or through culpable negligence, in such a manner as to be liable to interrupt or obstruct telegraphic or telephonic communications, and similarly the breaking or injury of a submarine pipeline or high-voltage power cable shall be a punishable offence. This provision shall not apply to any break or injury caused by persons who acted merely with the legitimate object of saving their lives or their ships, after having taken all necessary precautions to avoid such break or injury.’

A notable addition in Art. 113 is the sentence: ‘This provision shall apply also to conduct calculated or likely to result in such breaking or injury’. This ‘apparently reflect[ed] concerns with fishing vessels anchoring to pipes in the North Sea and with exploration by researchers around cables,’3 an issue which remains alive today.4 Otherwise, only minor drafting changes were introduced. The High Seas Convention drafting had in turn been adapted from Art. 62 of the International Law Commission (ILC) Articles concerning the Law of the Sea;5 which drew heavily on Art. 2 Convention for the Protection of Submarine Telegraph Cables 1884.6 The 1884 Cable Convention provided State parties a right of visit over other parties’ vessels suspected of offences under the Convention (offences could, however, only be reported to the flag State).7 That modest police power is absent from UNCLOS.8 Perhaps regrettably, the present article omits the final words of Art. 2 of the 1884 Cable 3 Convention: ‘such punishment being without prejudice to any civil action for damages’. 9 Some provision for civil liability might be thought desirable as the majority of cable failures are caused by commercial fishing vessels.10 Such questions have fallen to municipal legal systems to resolve.11 A narrow civil liability regime is contained in Art. 115, covering damage done in laying a submarine cable/pipeline to existing cables/pipelines. 12

2

As to the intended codification of customary law by this Convention, see the preamble. Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995), 268; Nelson (note 1), 987. 4 International Cable Protection Committee, Fishing and Submarine Cables: Working Together (2nd edn. 2009), available at: https://www.iscpc.org/documents/?id=142. 5 ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4, 9. 6 International Convention for the Protection of Submarine Telegraph Cables, 16 April 1884, CTS 163, 241 (1884 Cable Convention). 7 Art. 10 1884 Cable Convention; see Daniel P. O’Connell, The International Law of the Sea, vol. II (1984), 821 on the one case of such a high-seas inspection in 1959. 8 See Guilfoyle on Art. 110 MN 6. 9 Although this wording may not permit owners to sue for civil compensation for damage to their cables, see American Telephone & Telegraph Co v. M/V Cape Fear, 967 F.2 d 864 (3rd Circ. 1992) (US); contrast Gilbert Gidel, Le droit international public de la mer: le temps de paix, vol. I (1932), 419 (footnote 1). 10 Eric Wagner, Submarine Cables and Protections Provided by the Law of the Sea, Marine Policy 19 (1995), 127, 131; Gidel (note 9), 419 (footnote 1). 11 Scott Coffen-Smout/Glen J. Herbert, Submarine Cables: A Challenge for Ocean Management, Marine Policy 24 (2000), 441, 445 and 447 noting efforts in Canada by cable operators and the fishing industry to agree a compensation scheme. 12 See Guilfoyle/Miles on Art. 115 MN 5–6. 3

Guilfoyle/Miles

783

Art. 113

4–9

Part VII. High seas

III. Elements 1. Flag State Jurisdiction and Regulatory Efforts Art. 113 effectively defers to flag State jurisdiction, and limits itself to placing upon States an obligation to implement the rule in question in municipal law.13 It has been suggested that this ‘system of enforcement based on nationality may be appropriate for accidental damage’, but that it is unsatisfactory to deal with ‘considered malfeasance’ such as terrorist attacks on infrastructure;14 or deliberate cable theft,15 the potentially systematic character of which requires a collective response. 5 Formally speaking, therefore, international regulatory efforts to combat damage to submarine cables and pipelines in an ex post facto sense are based very much on the exercise of national jurisdiction, though the wording of Art. 113 does not preclude cooperation between states in enforcing the provision. Such cooperation is not, however, mandated by UNCLOS in the same way as, for example, the repression of piracy (� Art. 100), the trafficking of narcotics and psychotropic substances (� Art. 108) or unauthorized broadcasts (� Art. 109) on or from the high seas. 6 Notably, Art. 97 provides for the exclusive penal jurisdiction of a master’s flag or national State over ‘incidents of navigation’; the ILC took such incidents to include: ‘[d]amage to a submarine telegraph, telephone or high-voltage power cable or to a pipeline’. 16 This ‘implied cross-reference’ reinforces that the offence may only be prosecuted before the courts of a State having flag or active nationality jurisdiction.17 4

2. ‘breaking of or injury to a submarine cable or pipeline’ Art. 113 requires States to make it an offence for a vessel flying its flag or a person subject to its jurisdiction to break or injure a high-seas submarine cable or pipeline, where that act is done either ‘wilfully or through culpable negligence’. The former does occur in practice: there have been reported instances of deliberate sabotage or theft of cables, both within national waters and on the high seas.18 The latter standard was elaborated by the ILC in its commentary to Art. 62 of its Articles on the Law of the Sea, with the Commission stating that ‘[o]bviously if the presence of the cable or pipeline has not been adequately marked, there can be no question of “culpable negligence” on the part of navigators’. 19 8 Damage or breakage of a submarine cable is further not an offence if done by persons acting to save ‘their lives or their ships’, provided ‘all necessary precautions’ have been taken. This offence-creating requirement is complemented in Art. 115 by a duty of compensation where fishing gear is sacrificed to avoid such damage.20 9 The provision also applies ‘to conduct calculated or likely to result in […] breaking or injury’ of submarine pipes/cables. This language serves to prevent practices including ‘the 7

13

Nordquist/Nandan/Rosenne (note 3), 268. Stuart Kaye, International Measures to Protect Oil Platforms, Pipelines, and Submarine Cables from Attack, Tulane Maritime Law Journal 31 (2007), 377, 422; compare Gidel (note 9), 415–416. 15 Mick P. Green/Douglas R. Burnett, Security of International Submarine Cable Infrastructure: Time to Rethink?, in: Myron H. Nordquist et al. (eds.), Legal Challenges in Maritime Security (2008), 557, 559–560. 16 ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12, 27 (Art. 35). 17 O’Connell (note 7), 822; cf. Harvard Research in International Law, Draft Convention on Jurisdiction with Respect to Crime, AJIL 29 Suppl. (1935), 439, 478–479 and 569–572; Gidel (note 9), 420. 18 Robert Beckman, Protecting Submarine Cables from Intentional Damage – the Security Gap, in: Douglas R. Burnett/Robert Beckman/Tara M. Davenport (eds.), Submarine Cables: The Handbook of Law and Policy (2014), 282–3. 19 ILC Law of the Sea Articles with Commentaries (note 16), 39 (Art. 62). 20 Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 209. 14

784

Guilfoyle/Miles

Breaking or injury by owners of a submarine cable or pipeline

Art. 114

anchoring of fishing vessels to pipelines’ which are likely to result in pipe/cable breakages, though incidents still undoubtedly occur.21 Some sources estimate between 100 and 150 breakages per annum resulting from fishing or anchors.22

3. Art. 113 in Municipal Law Nothing in Art. 113 requires the penalties to be severe, and national legislation may vary 10 considerably; in the US statutory penalties are so low that authorities will not to prosecute such cases.23 Questions may be raised as to whether such behaviour in a State which had ratified UNCLOS would be sufficient to discharge the provision, but is to be noted that Art. 113 does not stipulate the level of the penalty to be prescribed and does not—unlike an obligation of aut dedere aut judicare—require that prosecution or extradition of the accused to a willing jurisdiction actually take place.24 That said, some jurisdictions do prescribe significant penalties for a breach of the offence 11 set out in Art. 113. Under the terms of S. 7 Submarine Cables and Pipelines Protection Act 1963 (Australia), the wilful damage or breakage of a cable may be met with a fine of A$2,000 or 12 months imprisonment, and the negligent damage of a cable may be met by a fine of A$1,000 or six months imprisonment.

4. Scope of Art. 113 and Relationship with Other Provisions Art. 58 (2), which applies mutatis mutandis to many of the provisions concerning the high 12 seas to the exclusive economic zone, includes Art. 113 within its ambit. In addition, Art. 113 is unaffected by the extension of the continental shelf beyond the 200 NM limit (� Art. 76), as the designation of the seabed as such does not affect the legal status of the waters above (� Art. 78 (1)). As a consequence, the substance of the obligation contained in Art. 113 applies equally in all areas beyond the 12 NM territorial sea, either under Art. 113 proper, or, where the cable in question is within the 200 NM limit, under Art. 58 (2).25 Art. 112 lays out the general regime of submarine cables/pipelines. Art. 114 deals with 13 liability to repair in cases where a submarine cable has been damaged. As alluded to above, Art. 115 concerns indemnity for loss incurred in avoiding injury to a submarine cable or pipeline.

Article 114 Breaking or injury by owners of a submarine cable or pipeline of another submarine cable or pipeline Every State shall adopt the laws and regulations necessary to provide that, if persons subject to its jurisdiction who are the owners of a submarine cable or pipeline beneath the high seas, in laying or repairing that cable or pipeline, cause a break in or injury to another cable or pipeline, they shall bear the cost of the repairs. Bibliography: L. Dolliver M. Nelson, Submarine Cables and Pipelines, in Rene´-Jean Dupuy/Daniel Vignes (eds.), A Handbook on the New Law of the Sea, vol. II (1991), 977–987; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995) 21 Nelson (note 1), 987; cf. Wagner (note 9), 136; for a recent example of this, albeit in Canadian territorial waters, see Socie´te´ Telus Communications and Ors. v. Peracomo Inc, [2012] FC 199 (Canada). 22 Fishing and Submarine Cables: Working Together (note 4), 5. 23 Wagner (note 10), 135. 24 Cf. ICJ, Questions Related to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment of 20 July 2012, ICJ Reports (2012), 422. 25 Natalie Klein, Maritime Security and the Law of the Sea (2011), 100–101.

Guilfoyle/Miles

785

Art. 114

1–4

Part VII. High seas

Documents: ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45 Cases: American Telephone & Telegraph Co v. M/V Cape Fear, 967 F.2 d 864 (3rd Circ. 1992) (US) Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘laws and regulations’ and ‘jurisdiction’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘the owners of the cable or pipeline’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Liability Limited to the Cost of Repairs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 4 5 5 8 9

I. Purpose and Function Art. 114 requires States to adopt laws and regulations such that, where persons subject to its jurisdiction are owners of a submarine cable or pipeline and in laying or repairing it cause damage to another submarine cable or pipeline, they must pay for it. The extent of liability is limited1 to ‘the cost of the repairs’2 and does not cover loss of profits.3 2 The raison d’eˆtre of Art. 114 is to ensure that a regime of effective liability for mishaps occurring during the laying or repair of submarine cables is put in place at an international level. Given that such mishaps will ordinarily occur at the hands of a private individual (i. e. a non-state entity), the provision directs States to use their municipal laws to establish liability in such cases. 3 The substance of Art. 114 also extends to the exclusive economic zone under Art. 58(2). 1

II. Historical Background 4

The wording of Art. 114 is taken from Art. 28 of the Geneva Convention on the High Seas (High Seas Convention), which provided: ‘Every State shall take the necessary legislative measures to provide that, if persons subject to its jurisdiction who are the owners of a cable or pipeline beneath the high seas, in laying or repairing that cable or pipeline, cause a break in or injury to another cable or pipeline, they shall bear the cost of the repairs.’

Only one minor change was introduced to Art. 114 on adoption: the High Seas Convention used the phrase ‘shall take the necessary legislative measures’ rather than ‘shall adopt the laws and regulations necessary’ as in UNCLOS, but the resulting difference is clearly one of cosmetic form rather than substance. The High Seas Convention drafting was in turn largely taken from Art. 63 of the International Law Commission’s Articles concerning the Law of the Sea;4 which drew heavily on Art. 4, International Convention for the Protection of Submarine Telegraph Cables 1884 (1884 Cable Convention). Given this continuity, the provision was widely accepted by the time it reached UNCLOS III, and did not engender much discussion. 5 During the 1971 session of the Sea-Bed Committee, a proposal by Malta suggested that

1

On the absence of a wider civil liability regime, see Guilfoyle on Art. 113 MN 3. Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995), 273. 3 L. Dolliver M. Nelson, Submarine Cables and Pipelines, in: Rene ´-Jean Dupuy/Daniel Vignes (eds.), A Handbook on the New Law of the Sea, vol. II (1991), 977, 983. 4 ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4, 11. 5 Nordquist/Nandan/Rosenne (note 2), 273. 2

786

Guilfoyle/Miles

Breaking or injury by owners of a submarine cable or pipeline

5–8

Art. 114

liability also include the cost associated with restoration of the marine environment. 6 This does not appear, however, to have met with widespread support, and at the second session of UNCLOS III (1974), the Main Trends Working Paper repeated Art. 28 of the High Seas Convention without apparent reference to the Maltese proposal. 7

III. Elements 1. ‘laws and regulations’ and ‘jurisdiction’ Art. 114 applies to natural or juridical persons under the jurisdiction of the regulating 5 state, a departure from the complete deference to flag State jurisdiction seen in other UNCLOS provisions on the regulation of submarine cables and pipelines on the high seas (e. g. � Art. 113). The principal basis of prescriptive jurisdiction in such cases would appear to be the nationality principle (i. e. the nationality of the cable owner),8 although lessuniversally recognised bases such as passive personality9 or the effects doctrine could also be invoked.10 Depending to the extent that a State sees a convergence between its energy security and national security interests, a State might also seek to invoke the protective principle, especially when considering oil pipelines.11 Nonetheless, the exact scope of the protective principle remains notoriously controversial. The obligation to adopt a particular suite of domestic regulations is somewhat more 6 straightforward in this particular instance than in other provisions dealing with submarine cables, as it requires only that liability in a civil sense be assigned. This avoids the difficulties regarding the magnitude of penalties and prosecutorial discretion seen with respect to Art. 113.12 As a consequence, it is possible for a municipal statute to meet the obligation contained in Art. 114 by simply paraphrasing its central formula. 13 Beyond the existence of liability, any further questions in relation to the breaking of or 7 damage to a cable are not dealt with under the Convention — the effectiveness of the regime is thus dependent on the willingness of injured parties to bring claims before the courts of the regulating state, and the capacity of those courts to render appropriate judgment.

2. ‘the owners of the cable or pipeline’ Art. 114 is confined by its terms to ‘owners of the cable or pipeline beneath the high seas’. 8 The effect of this is to ensure that the actual individuals laying or carrying out repairs to the cable or pipeline in question are not made to bear liability. Rather, if they serve as an agent, contractor or employee of the owner of the cable or pipeline, then the owner will be deemed to have ‘caused’ the damage within the meaning of the provision and will be held liable. However, it is to be remembered that precise questions of causation and agency will be determined by the municipal law of the regulating state. Art. 114 itself is silent on the subject.

6 Sea-Bed Committee, Draft Ocean Space Treaty: Working Paper Submitted by Malta, UN Doc. A/AC.138/53 (1971), 23, 24 (Art. 29). 7 UNCLOS III, Statement of the Activities of the Conference During its First and Second Sessions, UN Doc. A/ CONF.62/L.8/Rev.1 (1974), OR III, 93 (Annex II, Appendix I). 8 See James Crawford (ed.), Brownlie’s Principles of Public International Law (8th edn. 2012), 459–460. 9 Ibid., 461–462. 10 Ibid., 462–464. 11 Ibid., 462. 12 See Guilfoyle on Art. 113 MN 10–11. 13 See e. g. Sect. 8 Submarine Cables and Pipelines Protection Act 1963 (Australia): ‘If a person, in the course of laying or repairing a submarine cable or pipeline of which he or she is the owner, causes a break in or injury to another cable or pipeline, he or she is liable to bear the cost of repairing the break or injury.’

Guilfoyle/Miles

787

Art. 115

1

Part VII. High seas

3. Liability Limited to the Cost of Repairs By its terms, Art. 114 requires the imposition of liability only with respect to the ‘cost of repairs’. This notion appeared first in Art. 4 of the 1884 Cable Convention, was elaborated during the course of UNCLOS I,14 and in its present form effectively excludes, for the purposes of the provision, consequential loss incurred through the damage or break of the cable or pipeline. This would include not only the economic damage incurred by a company reliant on a fibre optic telecommunications cable to conduct its business, but also the cost of replacing the contents of a breached oil or natural gas pipeline.15 10 It should be remembered, however, that merely because Art. 114 is unconcerned with consequential loss arising from damage caused to a submarine cable or pipeline on the high seas does not mean that municipal law may not address the question. A cable owner responsible for such a break may be the subject of a suit for economic or other consequential loss under the tort law of the regulating state.16 9

Article 115 Indemnity for loss incurred in avoiding injury to a submarine cable or pipeline Every State shall adopt the laws and regulations necessary to ensure that the owners of ships who can prove that they have sacrificed an anchor, a net or any other fishing gear, in order to avoid injuring a submarine cable or pipeline, shall be indemnified by the owner of the cable or pipeline, provided that the owner of the ship has taken all reasonable precautionary measures beforehand. Bibliography: Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); Scott Coffen-Smout/Glen J. Herbert, Submarine Cables: A Challenge for Ocean Management, Marine Policy 24 (2000), 441–448; James Crawford (ed.), Brownlie’s Principles of Public International Law (8th edn. 2012); Myron H. Nordquist/Satya N. Nandan/ Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995); Eric Wagner, Submarine Cables and Protections Provided by the Law of the Sea, Marine Policy 19 (1995), 127, 131 Documents: ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4–12; ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45; International Cable Protection Committee, Fishing and Submarine Cables: Working Together (2009) Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘laws and regulations’ and jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Application and Burden of Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 5 5 7

I. Purpose and Function 1

Art. 115 exists as the obverse of Art. 114,1 with both provisions serving to allocate civil liability. Whilst the Art. 114 allocates liability for damage to submarine cables or pipelines in 14 Nordquist/Nandan/Rosenne (note 2), 273; for discussion of the provision during UNCLOS I, see Second Committee UNCLOS I, Summary Records of the 26th-30th Meetings, UN Doc. A/CONF.13/C.2/SR.26-30 (1958), OR VI, 72, 87–90. 15 Summary Records (note 14), 87–90. 16 Cf. American Telephone & Telegraph Co v. M/V Cape Fear, 967 F.2 d 864 (3rd Circ. 1992) (US). 1 Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 209.

788

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Indemnity for loss incurred in avoiding injury to a submarine cable or pipeline

2–6

Art. 115

certain circumstances, Art. 115 allocates liability in situations where damage to a ship has been occasioned—albeit indirectly—by a cable or pipeline. The purpose of the provision is therefore to ensure that an effective regime of liability for mishaps caused by attempts to avoid damage to submarine cables or pipelines is in place at an international level. The rationale behind Art. 115 is that it is more cost-effective and less disruptive overall for a ship to simply abandon a tangled fishing net or anchor rather than risk damaging the cable or pipeline in a misguided attempt to free it. The substance of Art. 115 is applicable to the exclusive economic zone by virtue of Art. 58 (2). 2

II. Historical Background The wording of Art. 115 is taken from Art. 29 of the 1958 Geneva Convention on the High 3 Seas (High Seas Convention), subject to minor drafting changes. The latter provided: ‘Every State shall take the necessary legislative measures to ensure that the owners of ships who can prove that they have sacrificed an anchor, a net or any other fishing gear, in order to avoid injuring a submarine cable or pipeline, shall be indemnified by the owner of the cable or pipeline, provided that the owner of the ship has taken all reasonable precautionary measures beforehand.’

The sole difference between Art. 115 UNCLOS and Art. 29 High Seas Convention was in the former’s use of the words ‘laws and regulations necessary’ in place of ‘necessary legislative measures’, a drafting choice common throughout UNCLOS. 2 But, as with similar changes with respect to Art. 114, these alterations are of cosmetic significance only. The drafting of Art. 29 of the High Seas Convention had in turn been largely taken from 4 Art. 65 of the International Law Commission (ILC) Articles concerning the Law of the Sea; 3 which in turn was based on Art. 7 of the Convention for the Protection of Submarine Telegraph Cables 1884.4 Given that acceptance of the provision was longstanding by the time it reached UNCLOS III, the principle contained in Art. 115 was not the subject of significant debate, and aside from the minor changes mentioned, was adopted without lengthy discussion. 5

III. Elements 1. ‘laws and regulations’ and jurisdiction As an obligation, Art. 115 requires that States adopt a specific regime of civil liability 5 within their municipal law. In many cases this may be done simply by paraphrasing the wording of the provision itself,6 in a similar manner to Art. 114.7 Unlike Art. 114, however, Art. 115 makes no reference to ‘persons subject to [a State’s] 6 jurisdiction’. The most likely jurisdictional basis is therefore established by reference to the nationality of the cable owner,8 obliging that person to indemnify shipowners who sacrifice 2 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995), 277. 3 ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4, 11. 4 Convention for the Protection of Submarine Telegraph Cables, 14 March 1884, 163 CTS 241 (1884 Cable Convention); the extent of the borrowing was so great that the Commentary to Art. 65 consisted largely of a cross reference to the earlier provision, see ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12, 39. 5 Nordquist/Nandan/Rosenne (note 2), 277. 6 See e. g. Sect. 9 Submarine Cables and Pipelines Protection Act 1964 (Australia): ‘If, after all reasonable precautionary measures have been taken, an anchor, a net or any other fishing gear belonging to a ship is sacrificed in order to avoid injuring a submarine cable or pipeline, the owner of the ship is entitled to be indemnified for his or her loss by the owner of the cable or pipeline.’ 7 See generally Guilfoyle/Miles on Art. 114. 8 See James Crawford (ed.), Brownlie’s Principles of Public International Law (8th edn. 2012), 459–460.

Guilfoyle/Miles

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7–9

Part VII. High seas

an anchor, net, or other fishing equipment to act so as to preserve the integrity of the cable or pipeline, regardless of nationality. In addition, it has been suggested that jurisdiction would be possessed by the flag state of the vessel in question,9 presumably on the basis that the flag State jurisdiction extends to damage done to a vessel’s equipment.

2. Application and Burden of Proof The indemnity in Art. 115 is subject to three essential preconditions: two of substance and one of procedure. With respect to the first substantive issue, the indemnity may only be claimed when what is lost is an ‘anchor, net, or any other fishing gear’. Given that a Maltese suggestion at the 1971 session of the Sea-Bed Committee to extend the list of appropriate equipment to ‘an anchor, net, or any fishing or other gear’10 was not taken up by UNCLOS III, with the present Art. 115 using a formula found in both the High Seas Convention and the 1884 Cable Convention,11 it is appropriate to presume that the loss of any equipment that was not an anchor, net, or otherwise fishing related would be outside the ambit of the indemnity (e. g. equipment associated with the mining of the sea-bed would not be covered). 8 The second substantive limitation is that the loss of equipment must have been occasioned ‘in order to avoid injuring a submarine cable or pipeline’, and the owner of the ship have taken ‘all reasonable precautionary measures beforehand’. The commentary to Art. 65 of the ILC Articles concerning the Law of the Sea elaborates on this requirement, with the ILC providing that it was ‘quite clear that compensation cannot be claimed if there has been any negligence on the part of the ship’.12 Thus, if the vessel in question was careless in coming into contact with the cable in the first place, the indemnity would not apply. Presumably this would not include the circumstance qualifying the application of Art. 113, i. e. contact with a cable ‘caused by persons who acted merely with the legitimate object of saving lives or their ships, after having taken all necessary precautions to avoid such break or injury’. 13 In addition, the indemnity would also likely not apply where disentangling the anchor, net or equipment would have been relatively simple, and the ship-owner instead elected to abandon the item in the expectation of its replacement. 9 The International Cable Protection Committee, a body comprised of national telecommunications authorities and industry representatives, exists to foster dialogue between ocean users and to promote ‘the safeguarding of submarine telecommunication cables against manmade and natural hazards’.14 Any guidelines developed by that body would presumably be of relevance in ascertaining a minimum standard of care.15 The procedural precondition of the indemnity concerns the question of proof. By the words of the provision, the burden of proof is on the ship-owner. The standard of proof, however, is not stipulated by the provision, and would likely be that of the applicable municipal law system into which the obligation of Art. 115 is incorporated. Although not applicable here per se, Art. 7 of the 1884 Cable Convention provides some insight as to what the procedure for discharging the burden might be, providing relevantly that: 7

‘In order to be entitled to such indemnity, one must prepare, whenever possible, immediately after the accident, in proof thereof, a statement supported by the testimony of the men belonging to the 9

Nordquist/Nandan/Rosenne (note 2), 278. Sea-Bed Committee, Draft Ocean Space Treaty: Working Paper Submitted by Malta, UN Doc. A/AC.138/53 (1971), 24 (Article 39). 11 Nordquist/Nandan/Rosenne (note 2), 276. 12 Articles Concerning the Law of the Sea (note 3), 294. 13 Nordquist/Nandan/Rosenne (note 2), 277. 14 Eric Wagner, Submarine Cables and Protections Provided by the Law of the Sea, Marine Policy 19 (1995), 127, 134; Scott Coffen-Smout/Glen J. Herbert, Submarine Cables: A Challenge for Ocean Management, Marine Policy 24 (2000), 441, 443. 15 For example, see International Cable Protection Committee, Fishing and Submarine Cables: Working Together (2009), available at: https://www.iscpc.org/documents/?id=142. 10

790

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Art. 116

Right to fish on the high seas

crew; and the captain of the vessel must, within twenty-four hours after arriving at the first port of temporary entry, make his declaration to the competent authorities. The latter shall give notice thereof to the consular authorities of the nation to which the owner of the cable belongs.’

Section 2 Conservation and management of the living resources of the high seas Article 116 Right to fish on the high seas 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 this section. Bibliography: Ronald P. Barston/Hja´lmar W. Hanneson, The Anglo-Icelandic Fisheries Dispute, International Relations 4 (1974), 559–584; Edward D. Brown, Iceland’s Fishery Limits: ‘The Legal Aspects’, The World Today 29 (1973), 68–80; William T. Burke, Anadromous Species and the New International Law of the Sea, ODIL 22 (1991), 95–131; William T. Burke, Highly Migratory Species in the New Law of the Sea, ODIL 14 (1983), 273– 314; William T. Burke, The New International Law of Fisheries: UNCLOS 1982 and Beyond (1994); Jean E. Carroz, Institutional Aspects of Fisheries Management under the New Regime of the Oceans, San DiegoLRev 21 (1984), 513–519; Thomas A. Clingan Jr., Mar Presencial (The Presential Sea): Deja Vu All Over Again? – A ~a, ODIL 24 (1993), 93–97; Jane G. Dalton, The Chilean Mar Presencial: A Response to Francisco Orrego Vicun Harmless Concept or a Dangerous Precedent?, IJMCL 8 (1993), 397–418; Peter G. Davies, The EC/Canadian Fisheries Dispute in the Northwest Atlantic, ICLQ 44 (1995), 927–939; David Freestone, Principles Applicable to Modern Oceans Governance, IJMCL 23 (2008), 385–391; Thomas W. Fulton, The Sovereignty of the Sea (1911); Ellen Hey, The Regime for the Exploitation of Transboundary Marine Fisheries Resources (1989); Christopher C. Joyner/Peter N. De Cola, Chile’s Presential Sea Proposals: Implications for Straddling Stocks and the International Law of Fisheries, ODIL 24 (1993), 99–121; Christopher C. Joyner/Alejandro Alvarez von Gustedt, The Turbot War of 1995: Lessons for the Law of the Sea, IJMCL 11 (1996), 425–458; Lawrence Juda, The 1995 United Nations Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks: A Critique, ODIL 28 (1997) 147–166; Christopher Kelly, Law of the Sea: The Jurisdictional Dispute Over Highly Migratory Species of Tuna, Colum. J. Transnat’l L. 26 (1988), 475; H. Gary Knight, International Fisheries Management: A Background Paper, in: H. Gary Knight (ed.), The Future of International Fisheries Management (1975), 1–45; Albert W. Koers, International Regulation of Marine Fisheries (1973); Barbara Kwiatkowska, The High Seas Fisheries Regime: At a Point of No Return?, IJMCL 8 (1993), 327–358; Leonard L. Leonard, International Regulation of Fisheries (1944); Ted McDorman, Stateless Fishing Vessels, International Law and the UN High Seas Fisheries Conference, IJMLC 25 (1994), 531–555; Herman Meyers, The Nationality of Ships (1967); Lourene Miovski, Solutions in the Convention on the Law of the Sea to the Problem of Overfishing in the Central Bering Sea: Analysis of the Convention, Highlighting Provisions Concerning Fisheries and Enclosed and Semi-Enclosed Seas, San DiegoLRev 26 (1989), 525–574; Frank W. Newton, Inexhaustibility as a Law of the Sea Determinant, Tex. Int’l L. J. 16 (1981), 369–432; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993); Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United ~a, Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995); Francisco Orrego Vicun Towards the Effective Management of High Seas Fisheries and the Settlement of the Pending Issues of the Law of the Sea: The View of Developing Countries Ten Years After the Signature of the Law of the Sea Convention, ODIL 24 (1993), 81–92; Alex G. Oude Elferink, The Determination of Compatible Conservation and Management Measures for Straddling and Highly Migratory Fish Stocks, MPYUNL 5 (2001), 551–607; Alex G. Oude Elferink, Fisheries in the Sea of Okhotsk High Seas Enclave: The Russian Federation’s Attempts at Coastal State Control, IJMCL 10 (1995), 1–18; Choon-ho Park, The US-Korean Fishing Rights Dispute in the North Pacific Ocean, Ecology Law Quarterly 16 (1989), 259–265; Rosemary Rayfuse, Non-Flag State Enforcement in High Seas Fisheries (2004); Constance Sathre, Salmon Interception on the High Seas: A Continuing Controversy between the United States and Japan, Environmental Law 16 (1986), 731–735; Ivan A. Shearer, High Seas: Drift Gillnets, Highly Migratory Species and Marine Mammals, in: Tadao Kuribayashi/Edward L. Miles (eds.), The Law of the Sea in the 1990s: A Framework for Cooperation (1990), 237–258; Gunnar G. Schram, Iceland’s 50-Mile Fishery Zone, Ocean Management 2 (1974), 127–138; Michael S. Sullivan, The Case in International Law for Canada’s

Rayfuse

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Extension of Fisheries Jurisdiction Beyond 200 Mile, ODIL 28 (1997), 203–268; David R. Teece, Global Overfishing and the Spanish-Canadian Turbot War: Can International Law Protect the High-Seas Environment? Colo. J. Int’l Envtl. L. & Pol’y 8 (1997), 89–125; Jose´ A. De Yturriaga, The International Regime of Fisheries: From UNCLOS 1982 to the Presential Sea (1997) Documents: Deep Sea Conservation Coalition, Unfinished Business: A Review of the Implementation of the Provisions of United Nations General Assembly Resolutions 61/105 and 64/72, Related to the Management of Bottom Fisheries in Areas Beyond National Jurisdiction (2011); ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45; GA Res. 61/105 of 6 March 2007; GA Res. 64/72 of 4 December 2009; GA Res. 46/215 of 20 December 1991; UN DOALOS, The Regime for High Seas Fisheries: Status and Prospects (1992) Cases: Award between the United States and the United Kingdom, Relating to the Rights of Jurisdiction of United States in the Bering’s Sea and the Preservation of Fur Seals (United States v. United Kingdom), Decision of 15 August 1893, RIAA XXVIII, 263; ICJ, Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Merits, Judgment of 5 February 1970, ICJ Reports (1970), 3; ICJ, Fisheries Jurisdiction Case (United Kingdom of Great Britain and Northern Ireland v. Iceland), Merits, Judgment of 25 July 1974, ICJ Reports (1974), 3; ITLOS, The M/V ‘Saiga’ (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Merits, Judgment of 1 July 1999, ITLOS Reports (1999), 10; ITLOS, The M/V ‘Virginia G’ Case (Panama v. GuineaBissau), Judgment of 14 April 2014, available at: http://www.itlos.org/index.php?id=171; PCIJ, Nationality Decrees in Tunis and Morocco, Advisory Opinion of 7 February 1923, PCIJ Reports, Series B, No. 4 (1923), 7; ICJ, Nottebohm (Liechtenstein v. Guatemala), Merits, Judgment of 6 April 1955, ICJ Reports (1955), 4; ITLOS, Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional Measures, Order of 27 August 1999, ITLOS Reports (1999), 280 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘All States have the right for their nationals to engage in fishing’. . . . . . . . . . . . . . . 2. ‘their treaty obligations’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘the rights and duties as well as the interests of coastal States provided for, inter alia, in article 63, paragraph 2 and articles 64–67’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. ‘the provisions of this section’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 5 13 13 17 20 30

I. Purpose and Function Art. 116 elaborates on the freedom to fish on the high seas which is codified in Art. 87 (1)(e). As Art. 87 makes clear, that freedom is no longer considered absolute in the Grotian sense. Rather it is a conditional freedom, subject to both the general limitations on the exercise of high seas freedoms found in Arts. 87 and 88 and the specific limitations set out in Art. 116. Thus, Art. 116 aims at concretising the scope of the ‘conditional freedom’. 2 With respect to the general limitations on the freedom of fishing, the due regard obligation in Art. 87 (2) limits State sovereignty by requiring a balancing of interests taking into consideration the circumstances of the case, both legal and extra-legal. 1 In the context of marine living resources, this means ‘a duty to have due regard to the rights of other States and the needs of conservation for the benefit of all’.2 The obligation is one of conduct rather than of result and its fulfilment, in the case of a shared or common property resource, such as the living resources of the high seas, requires cooperation between States. The parameters of that cooperation are set out in Arts. 117–120. The peaceful purposes requirement in Art. 88 is aimed at the avoidance of international conflict. While fishing is in and of itself a ‘peaceful activity’, conflicts over access have, in the past, led to the use of force. Thus, an underlying objective of Art. 116 is to provide a framework for the avoidance of conflict in 1

1

See also Guilfoyle on Art. 87 MN 9. ICJ, Fisheries Jurisdiction Case (United Kingdom of Great Britain and Northern Ireland v. Iceland), Merits, Judgment of 25 July 1974, ICJ Reports (1974), 3, para. 72. 2

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Right to fish on the high seas

3–5

Art. 116

high seas fisheries. The primary purpose of the provision is, however, to elaborate the specific conditions under which the freedom to fish is to be exercised. Art. 116 places specific qualifications on the exercise of the freedom to fish; qualifications 3 that are necessary to ensure the equal enjoyment, by all members of the international community, of the right to exploit a common property resource. Art. 116 stipulates that the freedom is subject to: (a) States’ treaty obligations; (b) the rights, duties and interests of coastal States in, inter alia, straddling, highly migratory, anadromous and catadromous species and marine mammals, as provided for in Arts. 63(2) and 64 to 67; and (c) Arts. 116–120 relating to the duties of conservation, cooperation and non-discrimination in respect of the conservation and management of the living resources of the high seas. In theory, only States complying with these obligations enjoy the freedom to fish on the high seas. In practice, the rules relating to exclusivity of flag State jurisdiction in Art. 92 significantly undermine the ability of States to enforce these qualifications. 3 The qualifications in Art. 116, in part made necessary as a result of the extension of coastal 4 State jurisdiction in the exclusive economic zone (EEZ), are premised on the understanding that ‘the marine ecosystem is a physical continuum which has been subdivided by juridical boundaries’4 and on the acknowledgment that fishing activities in areas beyond national jurisdiction may adversely affect living resources and the marine environment in areas under national jurisdiction. Art. 116 thus represents an attempt to balance international fishing effort with the requirements of State sovereignty, including the interests of coastal States in the living resources in their EEZs, and the need to ensure the continued viability and exploitability of stocks. This balance is shaped by the underlying concept of high seas fisheries as res nullius, by the principle of flag State jurisdiction, and by the conflict of interests between coastal States and distant water fishing nations, each seeking to protect their nationals’ economic and social interests.5

II. Historical Background The freedom of fishing has always been limited to the high seas, or that area of ocean space 5 which lies outside the jurisdiction of any State. The ability of any State to fish just outside the waters of another State has, however, been the source of inter-State disputes for centuries, from the Dutch/British disputes of the 17th century6 to the ‘Cod Wars’ of the 1960s and 1970s,7 to the 1995 Canada/Spain ‘Turbot’ dispute.8 By the late 19th century, increasing exploitation led to growing conflict between fishing States and the spectre of stock depletion and exhaustibility caused by overfishing had raised its head.9 States recognized that con3

See further Guilfoyle on Art 92 MN 8–9. Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995), 281. 5 H. Gary Knight, International Fisheries Management: A Background Paper, in: Herbert G. Knight (ed.), The Future of International Fisheries Management (1975), 1, 2. 6 See, Thomas W. Fulton, The Sovereignty of the Sea (1911), for descriptions of early disputes; and Leonard L. Leonard, International Regulation of Fisheries (1944), for extensive coverage of major disputes up to WWII, including the Anglo-Dutch Herring dispute, the North Atlantic Coast Fisheries dispute, the Russo-Japanese Fishery dispute, the English-French Channel, Moray Firth and North Sea fishery disputes and the Fur-Seal controversies. 7 Edward D. Brown, Iceland’s Fishery Limits: ‘The Legal Aspects’, The World Today 29 (1973), 68–80; Ronald. P Barston/Hja´lmar W. Hanneson, The Anglo-Icelandic Fisheries Dispute, International Relations 4 (1974), 559– 584; Gunnar G. Schram, Iceland’s 50-Mile Fishery Zone, Ocean Management 2 (1974), 127–138. 8 Michael S. Sullivan, The Case in International Law for Canada’s Extension of Fisheries Jurisdiction Beyond 200 Mile, 28 Ocean Development and International Law (1997), 203–268; David R. Teece, Global Overfishing and the Spanish-Canadian Turbot War: Can International Law Protect the High-Seas Environment?, Colo. J. Int’l Envtl. L. & Pol’y 8 (1997), 89–125; Christopher C. Joyner/Alejandro Alvarez von Gustedt, The Turbot War of 1995: Lessons for the Law of the Sea, IJMCL 11 (1996), 425–458; Peter G. Davies, The EC/Canadian Fisheries Dispute in the Northwest Atlantic, ICLQ 44 (1995), 927–939. 9 Knight (note 5), 2. 4

Rayfuse

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Art. 116

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tinued unregulated exploitation of high seas fisheries would lead to ongoing conflict between users and, ultimately, commercial extinction of species. 10 Qualifications on the freedom were therefore necessary. 6 Early restrictions were aimed at avoiding conflict between competing fishing fleets. Beginning with the fisheries conferences in the 1890s, treaties such as the 1882 Convention for Regulating the Police of the North Sea Fisheries addressed the need to conserve fish stocks within States’ territorial seas by controlling exploitation in adjacent maritime areas. However, except in the case of agreements recognising pre-existing rights and fishing practices, it was generally accepted that States exercised fishery jurisdiction only over fisheries conducted in their territorial seas. Claims to exercise jurisdiction in areas beyond the territorial sea, such as that of the United States in the Bering Fur Seals Arbitration,11 were firmly rejected. 7 In the 20th century, qualifications on the freedom of fishing emerged along three fronts. The first sought to recognise the special concerns of coastal States in ensuring protection of their interests in fisheries resources bordering their territorial seas. This approach manifested itself in the practice of coastal States claiming fishery zones and preferential rights. The legal concept of adjacent fisheries zones was introduced into the work of the preparatory committee for the 1930 Hague Conference and articulated in the 1945 Truman Proclamation on Fisheries, 12 which reserved to the United States the right to establish fishery zones in the high seas contiguous to its territorial sea. Although the concept of adjacent fisheries zones was ruled out by the ILC in 195613 and rejected at UNCLOS I,14 the 1958 Convention on Fishing and Conservation of the Living Resources of the High Seas did articulate the notion of coastal State interests and preferential rights in Art. 6, which provided that ‘the 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’. Art. 1 (1) made the freedom to fish on the high seas subject to, inter alia, the interests and rights of coastal States as provided for in that convention. By 1974, the International Court of Justice (ICJ) was of the opinion that both the concept of a 12 NM exclusive fishery zone and the concept of preferential rights of the coastal State to fishing in waters adjacent to that zone had crystallised into customary international law. 15 8 The second front recognised the need to regulate high seas fisheries and to take measures necessary to safeguard the interests of the international community in the conservation and management of high seas stocks. While a number of fisheries agreements were concluded in the early part of the 20th century, growing concerns about overfishing led to a surge in activity between 1945 and 1970 which resulted in the conclusion of numerous treaties for the purpose of cooperating in the management of high seas fishing activities. 16 These treaties focused variously on particular geographic regions covering all (or a number of) stocks within the region 17 or on 10

Frank W. Newton, Inexhaustibility as a Law of the Sea Determinant, Tex. Int’l L. J. 16 (1981), 369. Award between the United States and the United Kingdom, Relating to the Rights of Jurisdiction of United States in the Bering’s Sea and the Preservation of Fur Seals (United States v. United Kingdom), Decision of 15 August 1893, RIAA XXVIII, 263. 12 US Presidential Proclamation 2668, Policy of the United States with Respect to Coastal Fisheries in Certain Areas of the High Seas of 28 September 1945. 13 ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12, 31–32 (Commentary to Art. 49). 14 First Committee, UNCLOS I, Canada et. al.: Proposal (Article 3), UN Doc. A/CONF.13/C.1/L.77/REV.2 (1958), OR III, 232; First Committee, UNCLOS I, Canada et. al.: Revised Proposal (Article 3), UN Doc. A/ CONF.13/C.1/L.77/REV.3 (1958), OR III, 232. 15 Fisheries Jurisdiction Case UK v. Iceland (note 2), para. 52. 16 For a description of the various regimes, see Albert W. Koers, International Regulation of Marine Fisheries (1973). 17 E. g., International Convention for the Northwest Atlantic Fisheries and the International Commission for the Northwest Atlantic Fisheries, 8 February 1949, UNTS 157, 158; Agreement for the Establishment of the General Fisheries Council for the Mediterranean, 24 September 1949, UNTS 126, 238; International Convention between the United States of America, Canada and Japan for the High Seas Fisheries of the North Pacific Ocean, 9 May 1952, UNTS 205, 65; 1956 USSR-Japan Convention Concerning the High Seas Fisheries of the Northwest Pacific Ocean, 14 May 1956, AJIL 53 (1959), 763; 1959 North-East Atlantic Fisheries Convention, 24 January 11

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Right to fish on the high seas

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particular species throughout their migratory range.18 A number of these treaties established international fisheries commissions, some with managerial competence 19 and others with purely advisory functions.20 In practice, however, this piecemeal approach to regulation of high seas fisheries proved unsatisfactory, undermined as it was by the grant of inadequate decisionmaking and enforcement powers to these fisheries commissions and by the failures of flag State jurisdiction which manifested in the problems of free riders, reflagging to avoid controls, lack of flag State enforcement and inability of non-flag States to take enforcement action. 21 The third front in the development of qualifications on the freedom to fish on the high 9 seas resulted from the increasing realisation on the part of developing States of their inability to control over-exploitation by distant water fishing fleets. Newly independent coastal States were particularly concerned that they were not reaping the economic and other benefits from the resources in waters just off their coasts and contested proposals by the United States and others for the management of what they considered to be ‘their’ highly migratory species to fall to international fishery organisations.22 The coalescence of these three fronts resulted, at UNCLOS III, in the significant extension 10 of coastal State jurisdiction embodied in the territorial sea and EEZ regimes and the concomitant reduction in the geographic area of the high seas. Early proposals in the SeaBed Committee relating to regulation of high seas fisheries had all incorporated, in one way or another, the concept of coastal State preferential rights based not on the idea of a contiguous fishery zone but rather on the traditional division of the oceans into territorial sea and high seas.23 The United States, for example, suggested the preferential grant to coastal States of a portion of the allowable catch of the living resources of areas of the high seas contiguous to its territorial sea, although in respect of highly migratory species it maintained its position on international regulation and equal participatory rights for all interested States.24 Japan proposed a text recognising the special status of coastal States with respect to the conservation of fishery resources in waters adjacent to the territorial sea and giving those states preferential rights to fish in those waters. 25 Proposals from a number of Latin American States all sought to grant to coastal States preferential rights to exploit the living resources of the high seas and to reserve a part of the permissible catch to their nationals on the basis of the ‘special interest’ of coastal States ‘in the maintenance of the productivity of the living resources of the sea adjacent to the exclusive fishery zone’. 26 This ‘special interest’ 1959, UNTS 486, 157; Convention on the Conduct of Fishing Operations in the North Atlantic, 1 June 1967, UNTS 1051, 101. 18 E. g., Convention between the United States of America and the Republic of Costa Rica for the Establishment of an Inter-American Tropical Tuna Commission, 31 May 1949, UNTS 80, 3; Convention between Canada and the United States of America for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea, 2 March 1953, UNTS 222, 177; 1966 International Convention on the Conservation of Atlantic Tunas, 14 May 1966, UNTS 673, 63. 19 Such as the North-East Atlantic Fisheries Commission and the International Commission for the Northwest Atlantic. See Koers (note 16), Ch. 2. 20 Such as the Commission for Fisheries research in the Western Pacific and the Regional Fisheries Advisory Commission for the Southwest Atlantic. See Koers (note 16), Ch. 2. In particular the regional fisheries bodies established by the Food and Agriculture Organization (FAO) under Arts. VI and XIV of the Constitution of the Food and Agriculture Organization, 16 October 1945, CTS 1945, 32, possessed advisory functions only. 21 Rosemary Rayfuse, Non-Flag State Enforcement in High Seas Fisheries (2004), 17–49; William T. Burke, The New International Law of Fisheries: UNCLOS 1982 and Beyond (1994), 95. 22 William T. Burke, Highly Migratory Species in the New Law of the Sea, ODIL 14 (1983), 273; Christopher Kelly, Law of the Sea: The Jurisdictional Dispute over Highly Migratory Species of Tuna, Colum. J. Transnat’l L. 26 (1988), 475. 23 Barbara Kwiatkowska, The High Seas Fisheries Regime: at a Point of No Return?, IJMCL 8 (1993), 327, 333– 334. 24 Sea-Bed Committee, United States of America: Draft Articles on the Breadth of the Territorial Sea, Straits and Fisheries, UN Doc. A/AC.138/SC.II/L.4 and CORR.1 (1973), GAOR 26th Sess. Suppl. 21 (A/8421), 241, 243 (Art. III (1)). 25 Sea-Bed Committee, Japan: Proposals for a Regime of Fisheries on the High Seas, UN Doc. A/AC.138/SC.II/ L.12 (1972), GAOR 27th Sess. Suppl. 21 (A/8721), 188, 190 (Provisions 1.2 and 1.3). 26 Nordquist/Nandan/Rosenne (note 3), 283.

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was explicitly recognised in the report of Sub-Committee II in 197327 and in the 1974 Main Trends Working Paper which sought to amalgamate the elements of the various proposals. 28 However, with the acceptance, in 1974, of the concept of the EEZ, the discussion on coastal State preferential rights was essentially subsumed into the discussions on the EEZ with the concept of coastal State preferential rights being later incorporated into Art. 62. 11 Remaining discussions on the living resources of the high seas therefore focused on the right of non-discriminatory access to high seas fishing for all States provided, as proposed by El Salvador, that it would ‘not result in over-exploitation, depletion or destruction of the resources’.29 The text of what is now Art. 116 appeared in the Informal Single Negotiating Text (ISNT/Part II) in 1975, included in Section 2 of the Part on the high seas entitled ‘Management and Conservation of the Living Resources of the High Seas’.30 The incorporation of internationally agreed standards relating to conservation and management was effected by reference in subparagraph (a) to States’ ‘treaty obligations’ and in subparagraph (c) to ‘the provisions of this section’, while recognition of the new concept of the EEZ was provided in subparagraph (b) which referred to the rights, duties and interests of coastal States as provided for in articles dealing with straddling stocks, highly migratory species (which included marine mammals) and anadromous stocks in the EEZ. In 1976, the title was added and subparagraph (b) was expanded, in line with other textual changes in the Revised Single Negotiating Text (RSNT/Part II) to include a separate reference to marine mammals and to catadromous species.31 No further changes were made to Art. 116, although in 1981 the title of section 2 was altered to read ‘Conservation and Management of the Living Resources of the High Seas’ to better reflect ‘the relationship of fisheries management to the primary objective of conservation’.32 12 Given that approximately 95 percent of (then) commercially exploitable fish stocks were found within 200 NM, it was presumed that rationalising authority to regulate and manage fishery resources under the EEZ regime would enhance conservation and management and solve the practical and political difficulties associated with the piecemeal approach to high seas fisheries regulation that had led to over-capacity, over-exploitation and environmental problems. It was also presumed that recognition of the concept of the EEZ would weaken, if not silence, calls for further recognition of the special rights of coastal States in any areas beyond the EEZ. A compromise proposal put by Canada, Australia, Iceland, Argentina and others calling for recognition of a ‘consistency rule’ whereby the management regime applied to the high seas portion of a stock should be consistent with the regime adopted by the coastal State within its EEZ, was withdrawn due to resistance from distant water fishing states.33 In the end, Art. 116 recognised the ongoing special interest of coastal States even beyond the EEZ, on the one hand confirming the freedom to fish but, on the other hand, subjecting that freedom to limitations including the rights, duties and interests of coastal states in straddling, highly migratory, anadromous and catadromous species. However, Art. 116 provides no guidance as to how those rights should be balanced or how disputes as to their exercise should be resolved. As a result, the phenomenon of ‘creeping jurisdiction’ has persisted as evident, for example, in Chile’s claim to a ‘presential sea’ 27 Sea-Bed Committee: Report of Sub-Committee II, UN Doc. A/AC.138/95 (1973), GAOR 28th Sess. Suppl. 21 (A/9021), 38, 55 (para. 77). 28 UNCLOS III, Statement of Activities of the Conference During its First and Second Sessions, UN Doc. A/ CONF.62/L.8/REV.1 (1974), OR III, 93, 130 (Provision 138). 29 UNCLOS III, El Salvador: Working Paper on the High Seas, UN Doc. A/CONF.62/C.2/L.68 (1974), OR III, 235 (Art. 4 (1)). 30 UNCLOS III, Informal Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/PART II (1975), OR IV, 152, 167 (Art. 193). 31 UNCLOS III, Revised Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/REV.1/PART II (1976), OR V, 151, 169 (Art. 104). 32 Nordquist/Nandan/Rosenne (note 4), 285. 33 UNCLOS III, Australia et. al.: Amendments to Article 63, UN Doc. A/CONF.62/L.114 (1982), OR XVI, 224. See Kwiatkowska (note 23), 334.

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beyond 200 NM,34 Canada’s failed attempt to extend unilateral enforcement jurisdiction over high seas areas adjacent to its EEZ35 and the assertions of exclusive jurisdiction over high seas areas by coastal States bordering enclosed and semi-enclosed seas. 36

III. Elements 1. ‘All States have the right for their nationals to engage in fishing’ As Art. 116 makes clear, the freedom to fish on the high seas is given to States. Like the 13 other high seas freedoms, pursuant to Arts. 87 and 90, the freedom is given to all States, including landlocked States.37 The freedom is thus not limited to coastal States, or to States whose nationals have traditionally fished for a stock, or to States possessing a particular level of technological expertise. With respect to the term ‘nationals’, in international law ‘nationality serves above all to 14 determine that the person upon whom it is conferred enjoys the rights and is bound by the obligations which the law of the State in question grants to or imposes on its nationals’. 38 Nationality may be conferred on either juridical39 or natural40 persons. In the law of the sea context, nationality is conferred upon vessels and the public order of the oceans maintained through the operation of rules on flag State jurisdiction which identify which State has jurisdiction over a vessel on the high seas, which State has responsibility for it under international law, and which municipal law governs the ship’s affairs.41 In its commentary to draft Art. 49 of the 1956 Articles on the Law of the Sea with Commentaries, the ILC specifically confined reference to the term ‘nationals’ in the precursor to Art. 116, to denoting ‘fishing boats having the nationality of the State concerned, irrespective of the nationality of the members of their crews’.42 In general, the conditions for grant of nationality are a matter for the domestic law of a 15 State.43 However, the rules on nationality of ships in Art. 91 require that a ‘genuine link’ exist between a State and its fishing vessels for the purposes of establishing nationality. No definition of the ‘genuine link’ is given in the Convention and attempts to define and elaborate on the concept have met with limited success. 44 In the MV Saiga (No 2) Case ITLOS confirmed that the objective of the genuine link requirement is merely ‘to secure the more effective implementation of the duties of the flag State’ rather than to establish

~a, Towards the Effective Management of High Seas Fisheries and the Settlement of 34 Francisco Orrego Vicun the Pending Issues of the Law of the Sea: The View of Developing Countries Ten Years After the Signature of the Law of the Sea Convention, ODIL 24 (1993), 81; Christopher C. Joyner/Peter N. De Cola, Chile’s Presential Sea Proposals: Implications for Straddling Stocks and the International Law of Fisheries, ODIL 24 (1993), 99; Thomas A. Clingan Jr., Mar Presencial (The Presential Sea): Deja Vu All Over Again? – A Response to Francisco Orrego ~a, ODIL 24 (1993), 93; and Jane G. Dalton, The Chilean Mar Presencial: A Harmless Concept or a Vicun Dangerous Precedent?, IJMCL 8 (1993), 397. 35 Sullivan (note 8). 36 See, e. g., Lourene Miovski, Solutions in the Convention on the Law of the Sea to the Problem of Overfishing in the Central Bering Sea: Analysis of the Convention, Highlighting Provisions Concerning Fisheries and Enclosed and Semi-Enclosed Seas, San DiegoLRev 26 (1989), 525–574; Alex G. Oude Elferink, Fisheries in the Sea of Okhotsk High Seas Enclave: The Russian Federation’s Attempts at Coastal State Control, IJMCL 10 (1995), 1–18. 37 The modalities for participation by land-locked States are set out in Art. 69. See Harrison on Art. 69 MN 8–9. 38 ICJ, Nottebohm (Liechtenstein v. Guatemala), Merits, Judgment of 6 April 1955, ICJ Reports (1955), 4. 39 ICJ, Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Merits, Judgment of 5 February 1970, ICJ Reports (1970), 3. 40 Nottebohm (note 38), 20–21. 41 Herbert Meyers, The Nationality of Ships (1967), 1. 42 ILC Law of the Sea Articles with Commentaries (note 13), 31–32 (Commentary to Art. 49). 43 PCIJ, Nationality Decrees in Tunis and Morocco, Advisory Opinion of 7 February 1923, PCIJ Reports, Series B, No. 4 (1923), 7, 24. 44 See Guilfoyle on Art. 91 MN 17.

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conditions for the granting of the flag.45 In other words, the genuine link is a consequence of the granting of flag rather than a condition for its granting and is satisfied by the mere act of registration in accordance with the domestic law of the flag state. 46 Thus States are free to grant their flag as, when, and to whom they see fit, and once granted the vessel is, pursuant to Art. 92, under the exclusive jurisdiction of the flag State which retains the primary obligation to ensure enforcement of the conditions set out in Art. 116. Stateless vessels, by definition, do not enjoy the freedom to fish.47 16 Whether the term ‘nationals’ in Art. 116 might apply beyond ‘fishing vessels’ appears not to have been discussed during the UNCLOS III negotiations. However, just as war crimes are committed by persons and not States, so, too, fishing activities are carried out by persons and not by vessels stricto sensu. While Art. 92 provides for the primary jurisdiction of the flag State on the high seas, this jurisdiction is concurrent with that of the States of nationality of crew members and owners who remain competent to exercise jurisdiction and control over their juridical or natural nationals. Thus, the term ‘nationals’ must also be taken to apply to juridical and natural individuals, including persons on board fishing and support vessels and the companies controlling those vessels. The exercise of prescriptive or enforcement jurisdiction over juridical or natural individuals in respect of fishing and related activities is provided for in Art. 117 and underlies the emerging practice of criminalising activities related to and involvement in illegal, unreported and unregulated fishing.

2. ‘their treaty obligations’ The freedom to fish on the high seas is subject to a State’s treaty obligations. This includes their obligations under UNCLOS as well as other bilateral or multilateral agreements which States enter into. This qualification was inserted both to ensure that provisions ensuring the superiority of UNCLOS were not interpreted as invalidating such agreements and, consistent with Art. 118, to safeguard the ability of States to negotiate future cooperative regimes restricting or regulating their freedom of action and their nationals’ right to fish on the high seas.48 Prior to UNCLOS at least twenty high seas fisheries commissions existed. 49 However, with the advent of the EEZ the areas covered by these organisations were either reduced or wholly subsumed into coastal State waters necessitating a review of their mandates. 50 Today there are approximately 17 high seas Regional Fisheries Management Organisations (RFMOs), the member States of which are obliged to ensure that their nationals comply with the conservation and management measures adopted by the organisation, as well as a number of bilateral and multilateral agreements or arrangements by virtue of which States manage, control or restrict the rights of their to nationals to fish on the high seas. 18 Of signal importance, the freedom to fish is now circumscribed for the parties to the 1993 Food and Agriculture Organization Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels in the High Seas (FAO Compliance Agreement)51 and the 1995 Agreement for the Implementation of the Provisions 17

45 ITLOS, The M/V ‘Saiga’ (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment of 1 July 1999, ITLOS Reports (1999), 10, para. 83. 46 ITLOS, The M/V ‘Virginia G’ Case (Panama v. Guinea-Bissau), Judgment of 14 April 2014, paras. 108–113, available at: http://www.itlos.org/index.php?id=171. 47 Ted McDorman, Stateless Fishing Vessels, International Law and the UN High Seas Fisheries Conference, IJMLC 25 (1994), 531. 48 Ivan A. Shearer, High Seas: Drift Gillnets, Highly Migratory Species and Marine Mammals, in: Tadao Kuribayashi/Edward L. Miles (eds.), The Law of the Sea in the 1990s: A Framework for Cooperation (1990), 237, 238. See also Rayfuse on Art. 118. 49 Koers (note 16), Ch. 2. 50 Jean E. Carroz, Institutional Aspects of Fisheries Management under the New Regime of the Oceans, San DiegoLRev 21 (1984), 513, 516. 51 FAO Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels in the High Seas, 24 November 1993, UNTS 2221, 120.

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of the United Nations Convention of the Law of the Sea of 10 December 1982, relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (UNFSA).52 The FAO Compliance Agreement addresses the deterrence of flagging or reflagging of vessels fishing on the high seas as a means of avoiding compliance with international conservation and management measures, and the failure of flag States to deter their fishing vessels from undermining such measures.53 The Agreement is thus aimed at increasingly defining what constitute the genuine link and effective control requirements as provided for in the Convention. The UNFSA addresses the long-term conservation and sustainable use of straddling and highly migratory fish stocks on the high seas. The UNFSA is an implementing agreement under the Convention and is to be interpreted and applied consistently with the Convention.54 The qualification is not, however, limited to fishery related treaties but rather includes all 19 the obligations States have accepted in the UNCLOS as well as all other treaty obligations. Thus, the freedom to fish is subject to the obligation to protect and preserve the marine environment found in Art. 192 and the obligation to protect and preserve rare or fragile species and ecosystems and the habitat of depleted, threatened or endangered species and other forms of marine life found in Art. 194 (5). This qualification has become particularly relevant given the changes in thinking on fisheries and biodiversity conservation that have occurred since the adoption of the Convention. As observed by ITLOS in the ITLOS Southern Bluefin Tuna Cases in 1999, ‘the conservation of the living resources of the sea is an element in the protection and preservation of the marine environment’.55 This broader environmental concern is manifest in agreements such as the 1989 Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific56 and the 2001 Agreement on the Conservation of Albatrosses and Petrels57 and more recent efforts to address the problem of destructive fishing practices such as bottom trawling.58 However, the parameters of how to reconcile broader environmental protection with the freedom of fishing are not spelled out. The qualification also includes the full range of other multilateral or bilateral agreements to which States are party, including trade, human rights and environmental treaties where similar issues of treaty interaction and interpretation arise.

3. ‘the rights and duties as well as the interests of coastal States provided for, inter alia, in Article 63, paragraph 2 and articles 64–67’ In addition to being subject to States’ other treaty obligations, Art. 116 (b) qualifies the 20 freedom of fishing by specifically stipulating that it is subject to the rights, duties and interests of coastal States concerning, inter alia, straddling fish stocks (Art. 63 (2)), highly migratory fish stocks (Art. 64), marine mammals (Art. 65), anadromous species (Art. 66) and catadromous species (Art. 67) found within their EEZs.59 Each of these articles imposes an obligation on coastal States to take measures to conserve and manage the relevant stocks and species within their EEZ, and to further cooperate with other States in their conservation and 52 Agreement for the Implementation of the Provisions of the United Nations Convention of the Law of the Sea of 10 December 1982, relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 4 August 1995, UNTS 2167, 88. 53 FAO Compliance Agreement, Preambular Para. 9. 54 Art. 4 UNFSA. 55 ITLOS, Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional Measures, Order of 27 August 1999, ITLOS Reports (1999), 280, para. 70. 56 Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific, 24 November 1989, ILM (1990) 29, 1449. 57 Agreement on the Conservation of Albatrosses and Petrels, 19 June 2001, UNTS 2258, 257. 58 GA Res. 61/105 of 6 March 2007 and GA Res. 64/72 of 4 December 2009. See: Deep Sea Conservation Coalition, Unfinished Business: A Review of the Implementation of the Provisions of United Nations General Assembly Resolutions 61/105 and 64/72, Related to the Management of Bottom Fisheries in Areas Beyond National Jurisdiction (2011), available at: http://www.savethehighseas.org/publicdocs/DSCC_review11.pdf. 59 Provided for by reference to Arts. 63 (2) and 64–67.

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management on the high seas. The rationale for this qualification arises from the potentially onerous duties associated with being a coastal State and follows automatically from the Art. 87 (2) obligation to exercise the high seas freedom of fishing with due regard for the interests of other States. The qualification constitutes recognition of coastal State interests in these living resources, an interest that arises because of the biological fact that fishing activities in the high seas may have adverse consequences for conservation and management attempts within an EEZ.60 Recognition of coastal States’ interests in stocks or species that spend part of their lives in the high seas is thus a necessary incentive to ensure the adequacy of their measures, although as has been noted, the qualification in Art. 116 (b) ‘fundamentally alters’ the concept of the freedom of high seas fishing. 61 21 Use of the term ‘inter alia’ indicates that it is not only the specific articles referred to that must be considered. Consideration must also be given to other provisions of the Convention from which the rights, duties and interests of coastal States can be inferred. These include the provisions of Part XII on protection and preservation of the marine environment, the requirements of Arts. 61 and 62 on conservation and utilisation of living marine resources within the EEZ and Arts. 117 to 120 regarding cooperation in the conservation and management of high seas living resources. Issues such as marine pollution, habitat destruction and incidental mortality of by-catch of associated or dependent species can have profound effects on conservation and management of living resources both within and beyond EEZs, as can a failure to cooperate in the conservation and management of stocks and species which are found both within the EEZ and in adjacent high seas areas. 22 Unlike the 1958 Convention on Fishing and Conservation of the Living Resources of the High Seas, as a result of the acceptance of the EEZ regime, the Convention does not grant the coastal State ‘preferential rights’ or even ‘special interests’ in fish in adjacent high seas areas. Thus, which coastal State and what particular rights, duties and interests are to be considered will depend on the context and the particular stock or species in question and will be determined by reference to the relevant article. 23 With respect to anadromous stocks, Art. 66 recognises the primary interest in, and responsibility of, the ‘State of origin’, or the coastal State in whose rivers these stocks spawn.62 The State of origin therefore has the right of full regulatory control over the stocks wherever they occur and fishing for anadromous stocks on the high seas is prohibited. The rationale for these measures rests on the impossibility of accurate and selective management of high seas harvest and the costs imposed on the coastal State in fulfilment of its duty to maintain critical spawning habitat, escapement and recruitment. 63 The exception in Art. 66 (3)(b) relating to cases of economic dislocation, designed to provide relief to Japan and Korea whose interceptions of salmon of both North American and Asian origin had caused tensions with Canada, the United States and the USSR,64 is now a matter of historical interest only. International cooperation in prohibiting high seas salmon interceptions as called for in Art. 66 has been manifested in the 1985 Japan – USSR Agreement Concerning Cooperation in the Field of Fisheries,65 the 1992 Convention for the Conservation of Anadromous Stocks in the North Pacific (Anadromous Stocks Convention)66 and the 1982 Convention for the Conservation of Salmon in the North Atlantic Ocean.67 Similarly, cooperation in prohibiting 60

UN DOALOS, The Regime for High Seas Fisheries: Status and Prospects (1992), 21 (para. 62). Nordquist/Nandan/Rosenne (note 3), 287. 62 See further Harrison on Art. 66 MN MN 9–10. 63 William T. Burke, Anadromous Species and the New International Law of the Sea, ODIL 22 (1991), 95. 64 Constance Sathre, Salmon Interception on the High Seas: A Continuing Controversy between the United States and Japan, Environmental Law 16 (1986) 731; Choon-ho Park, The US-Korean Fishing Rights Dispute in the North Pacific Ocean, Ecology Law Quarterly 16 (1989) 259. 65 Agreement between the USSR and Japan Concerning Cooperation in the Field of Fisheries, 12 May 1985, UNTS 1402, 302. 66 Convention for the Conservation of Anadromous Stocks in the North Pacific, 11 February 1992, TIAS 11465. 67 Convention for the Conservation of Salmon in the North Atlantic Ocean, 2 March 1982, UNTS 1338, 33. 61

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the incidental taking of high seas salmon is evident in the adoption of the 1989 Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific68 and the global moratorium on large scale pelagic driftnet fishing adopted by the United Nations General Assembly in 1991.69 The combined effect of Art. 66, Art. 116 and this other practice has led to the conclusion that ‘the customary international law of freedom of fishing no longer affords any right to harvest [anadromous species] without the agreement of the State of origin’.70 Thus, as regards anadromous species, it seems safe to say that the freedom of fishing has been eradicated. A similar conclusion arises in respect of catadromous species, the survival of which, like 24 anadromous species, ‘depends on maintenance of the habitat by the host State and on regulated harvesting of the species as it migrates to fresh water or returns to the ocean’. 71 Art. 67 prohibits high seas fishing for catadromous species and gives all responsibility for their management to the coastal State in whose waters they spend the greater part of their life cycle.72 The coastal State is obliged to ensure the ingress and egress of migrating fish and, where the fish migrate through the EEZs of more than one State, the States concerned are to manage the fish by agreement which takes into account the special interests and duties of the coastal State in whose waters they ultimately spend their lives. Clearly the rights, duties and interests of the coastal States are paramount and the freedom to fish no longer exists in respect of catadromous species. With respect to marine mammals, Art. 65 allows a coastal State to prohibit, limit or 25 regulate the exploitation of marine mammals more strictly than is otherwise provided for in Part V. In other words, States are not required to allow exploitation of marine mammals. 73 This is in contradistinction to States’ obligations, pursuant to Arts. 61–62 and 118–119, to conserve and manage fisheries with a view to ensuring their qualified maximum sustainable yield and optimum utilisation. To achieve its ends, Art. 65 requires States to cooperate in the conservation of marine mammals and to work through the appropriate international organisations for their conservation and management. This is generally accepted as being a reference to the International Whaling Commission (IWC) established under the 1946 Convention on the International Regulation of Whaling.74 Importantly, Art. 120 specifically extends the application of Art. 65 to the conservation and management of marine mammals in the high seas although the provision’s operation in this context is criticised for lacking clarity and precision as to whether a coastal State can unilaterally prohibit, limit or regulate the exploitation of marine mammals in the high seas.75 In any event, coastal State interests cannot now be considered without reference to the moratorium on commercial whaling established by the IWC in 1986 and the international condemnation of Japan and Norway’s unilateral rejections of the moratorium. Straddling fish stocks (SFS) come in two legally defined varieties: those that occur within 26 the EEZ of two or more coastal States and those that occur within the EEZ and in the high seas area beyond and adjacent to it. With respect to the latter, Art. 63 (2) requires coastal States and States fishing for those stocks in the adjacent high seas area to seek to agree on measures necessary for their conservation in the adjacent area, including consideration of the effects of fishing on associated species.76 This pactum de negotiando requires negotiation in 68 Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific, 23 November 1989, UNTS 1899, 3. 69 GA Res. 46/215 of 20 December 1991. 70 Burke (note 63), 118. 71 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne,United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 681. 72 See further Harrison on Art. 67 MN 7. 73 See further Harrison/Morgera on Art. 65 MN 8. 74 International Convention on the International Regulation of Whaling, 2 December 1946, UNTS 161, 72. 75 Jose ´ A. De Yturriaga, The International Regime of Fisheries: From UNCLOS 1982 to the Presential Sea (1997), 167. 76 See further Harrison/Morgera on Art. 63 MN 14–15.

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good faith and is not limited only to States fishing for the stocks but extends to all coastal States in whose EEZ the straddling stocks are found.77 27 With respect to highly migratory species (HMS), Art. 64 obliges coastal States and other States whose nationals fish for HMS in the region to cooperate with a view to ensuring conservation and promoting the objective of optimum utilisation of HMS both within and beyond the EEZ.78 Art. 64 differs from Art. 63 (2) in that it requires cooperation, as opposed to the vaguer wording of requiring States to ‘seek to agree’, although the difference between the two is no longer considered to be of significance,79 and it introduces the requirement of optimum utilisation. Cooperation is also to be directed at ensuring these objectives are met over the entire migratory range of the species involved. Given the nature of the resource and the number of States involved, cooperation on a multilateral basis through international organisations is both logical and preferable.80 28 The nature of coastal State interests in high seas SFS and HMS is not defined in Arts. 63 (2) and 64 but is inferred from the conservatory obligations expressed in Art. 61 and the need to ensure the long term sustainability of resources exploited in their EEZ. Thus, both the content of conservation and management measures adopted for high seas fishing and their coordination with national measures is relevant. However, the Convention provides no guidance on how to balance coastal State States measures adopted for the EEZ and those adopted multilaterally in respect of adjacent high seas areas, or on how coastal State interests can be accommodated in the absence of international agreement on high seas management measures. 29 The issue has at least in part been resolved by the UNFSA, which provides that measures adopted in respect of high seas areas and those adopted in respect of areas under national jurisdiction are to be ‘compatible’ in order to ensure conservation of SFS and HMS in their entirety or, in other words, over their entire range. The measures adopted are not to undermine the effectiveness of the coastal State measures adopted in accordance with Art. 61.81 Nevertheless, the precise meaning of ‘compatibility’ remains unclear. 82 Although a number of factors are to be taken into account in determining compatibility, no indication is given of the relative weight to be accorded to those factors or of whether it is high seas measures that are to be compatible with coastal State measures or vice versa. 83

4. ‘provisions of this section’ The reference in Art. 116 (c) to ‘this section’ is a reference to the Arts. 117–120 which form the other provisions of Part VII Section 2 entitled ‘Conservation and Management of the Living Resources of the High Seas’. While arguably redundant given Art. 116 (a), Art. 116 (c) further emphasises that the freedom of fishing is subject to the obligations relating to the conservation and management of high seas living resources set out in those articles including the obligations of cooperation and conservation. In this respect, Art 116 (c) is also said to envisage ‘a role for regional and subregional fisheries organisations and arrangements in regulating high seas fishing and promoting cooperation among States’.84 31 The underlying determinant of Section 2 is the realisation that fisheries resources are exhaustible if not appropriately managed and conserved. Section 2 recognises that in the high seas context this requires that States control the fishing and related activities of their nationals (Art. 117) and cooperate through subregional or regional fisheries management 30

77

Fisheries Jurisdiction Case (note 2), para. 70. See further Harrison/Morgera on Art. 64 MN 7–9. 79 Shearer (note 48). 80 Ellen Hey, The Regime for the Exploitation of Transboundary Marine Fisheries Resources (1989), 58–59. 81 Art. 7 UNFSA. 82 Lawrence Juda, The 1995 United Nations Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks: A Critique, ODIL 28 (1997), 147. 83 Alex G. Oude Elferink, The Determination of Compatible Conservation and Management Measures for Straddling and Highly Migratory Fish Stocks, MPYUNL 5 (2001), 551. 84 Nordquist/Nandan/Rosenne (note 3), 289. 78

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organisations (Art. 118) to ensure effective conservation of the living resources. As N ORDet al. note, the emphasis on cooperation ‘establishes joint responsibility for conservation and management of fish stocks between the coastal State and other States whose nationals fish for those stocks on the high seas’.85 The emphasis on conservation incorporates some of the same principles articulated in Art. 61 and requires achievement of qualified maximum sustainable yield and conservation of dependent and associated species (Art. 119). Nevertheless, while the basic duties of conservation and cooperation are set out in 32 Section 2, the detailed content of these duties is missing. The provisions have been criticised for their vagueness and lack of precision,86 and for their failure to specify the consequences of a failure to cooperate or to agree on conservation and management measures, or to provide any means of enforcing these obligations. The specific content of these duties is now more fully articulated in the UNFSA which implements the provisions of Section 2 in respect of straddling and highly migratory fish stocks. The UNFSA is only binding on its parties and only applicable to certain stocks/species. However, many of the principles and rules in the UNFSA are also generally accepted as ‘important general principles for fisheries management’87 and therefore provide evidence of the developing customary content to the duties of cooperation and conservation set out in the provisions of Section 2. Art. 116 is critically important in establishing the qualifications, or limits, on the freedom 33 of fishing which is not absolute, but is rather a conditional freedom, subject to the conditions as determined by the international community. The article makes clear that the Convention is not the last word on the content of the conditional freedom of fishing but rather that its content is also subject to the content of other treaties and to the development of customary international law in respect of the detailed content of the obligations in Arts. 117–120.

QUIST

Article 117 Duty of States to adopt with respect to their nationals measures for the conservation of the living resources of the high seas All States have the 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. Bibliography: David Balton, The Compliance Agreement, in: Ellen Hey (ed.) Developments in International Fisheries Law (1999), 31–53; David Balton, Strengthening the Law of the Sea: The New Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks, ODIL 27 (1996), 125–151; Patricia Birnie, Are Twentieth-Century Marine Conservation Conventions Adaptable to Twenty-First Century Goals and Principles?: Part I, IJMCL 12(3) (1997), 307–339; Patricia Birnie, Reflagging Vessels on the High Seas, RECIEL 2(3) (1993), 270–276; Simone Borg, Conservation on the High Seas: Harmonizing International Regimes for the Sustainable Use of Living Resources (2012); Darren S Calley, Market Denial and International Fisheries Regulation: The Targeted and Effective Use of Trade Measures Against the Flag of Convenience Fishing Industry (2011); David J. Doulman, An Overview of World Fisheries: Challenges and Prospects for Achieving Sustainable Resource Use (1996); David J. Doulman, FAO Action to Combat IUU Fishing: Scope of Initiatives and Constraints on Implementation, in: Davor Vidas (ed.) Law Technology and Science for Oceans in Globalisation: IUU Fishing, Oil Pollution, Bioprospecting, Outer-Continental Shelf (2010), 131–155; William Edeson, The International Plan of Action on Illegal, Unreported and Unregulated Fishing: The Legal Context of a Non-Legally Binding Instrument, IJMCL 16 (2001), 603–623; Alex G. Oude Elferink, The Determination of Compatible Conservation and Management Measures for Straddling and Highly Migratory Fish Stocks, MPYUNL 5 (2001), 551–607; Carl August Fleisher, Fisheries and Biological Resources, in: Rene´-Jean Dupuy/Daniel Vignes (eds.), A Handbook on the New Law of the Sea, vol. II (1991), 989–1126; Hugo Grotius, The Freedom of the Seas of The Right Which Belongs to the Dutch to Take Part in the East Indian Trade (1608, translated 1916); Moritaka Hayashi, The Straddling and Highly Migratory Fish Stocks Agreement, in: Ellen Hey (ed.) Developments in International Fisheries Law (1999), 55–83; Lawrence Juda, The 1995 United Nations Agreement on Straddling Fish Stocks and Highly 85 86 87

Ibid. Kwiatkowska (note 23). David Freestone, Principles Applicable to Modern Oceans Governance, IJMCL 23 (2008), 385, 389.

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Migratory Fish Stocks: A Critique, ODIL 28 (1997), 147–166; Stuart Kaye, International Fisheries Management (2001); Terje Lobach, Combatting IUU Fishing: Interaction of Global and Regional Initiatives, in: Davor Vidas (ed.) Law Technology and Science for Oceans in Globalisation: IUU Fishing, Oil Pollution, Bioprospecting, Outer-Continental Shelf (2010), 109–129; Gerald Moore, The Code of Conduct for Responsible Fisheries, in: Ellen Hey (ed.) Developments in International Fisheries Law (1999), 85–105; Frank W. Newton, Inexhaustibility as a Law of the Sea Determinant, Tex. Int’l L. J. 16 (1981) 369; Alex G. Oude Elferink, The Determination of Compatible Conservation and Management Measures for Straddling and Highly Migratory Fish Stocks, 5 Max Plank Yearbook of United Nations Law (2001) 551; Linda Paul, Expanding Awareness: Emerging Approaches to Fisheries Management (1996); Rosemary Rayfuse, Non-Flag State Enforcement in High Seas Fisheries (2004); Rosemary Rayfuse, Possible Actions Against Vessels Flying the Flag of States not Meeting the Criteria for Flag State Performance, in: FAO, Report of the Expert Consultation on Flag State Performance, FAO Fisheries and Aquaculture Report No. 918 (2009), 28–39; Rosemary Rayfuse, The Anthropocene, Autopoiesis and the Disingenuousness of the Genuine Link: Addressing Enforcement Gaps in the Legal Regime for Areas Beyond National Jurisdiction, in: Alex G. Oude Elferink/Erik J. Molenaar (eds.) The International Legal Regime of Areas beyond National Jurisdiction: Current and Future Developments (2010), 165–190; Rosemary Rayfuse, The Interrelationship between the Global Instruments of International Fisheries Law, in: Ellen Hey (ed.) Developments in International Fisheries Law (1999), 107–158; Jose´ A. De Yturriaga, The International Regime of Fisheries: From UNCLOS 1982 to the Presential Sea (1997) Documents: FAO, Code of Conduct for Responsible Fisheries (1995); FAO, Committee on Fisheries, Flagging of Fishing Vessels on the High Seas, FAO Doc. COFI/93/10 (1993); FAO, Guidelines for the Ecolabelling of Fish and Fishery Products from Marine Capture Fisheries (2009); FAO, Implementation of the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, FAO Technical Guidelines for Responsible Fisheries No. 9 (2002); FAO, International Guidelines for the Management of Deep-Sea Fisheries in the High Seas (2009); FAO, International Guidelines on Bycatch Management and reduction of Discards (2011); FAO, International Plan of Action for Reducing Incidental Catch of Seabirds in Longline Fisheries (1998); FAO, International Plan of Action for the Conservation and Management of Sharks (1998); FAO, International Plan of Action for the Management of Fishing Capacity (1999); FAO, International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (2001); FAO, Report of the Technical Consultation on High Seas Fishing (1992); FAO, Technical Consultation on High Seas Fishing, Legal Issues Concerning High Seas Fishing, FAO Doc. FI/HSF/TC/92/8 (1992); FAO, UNCED and its Implications for Fisheries, FAO Doc. COFI/93/INF/8 (1993); FAO, Voluntary Guidelines on Flag State Performance (2013); GA Res. 66/68 of 28 March 2012; GA Res. 67/79 of 30 April 2013; GA Draft Res. A/69/L.30 of 24 November 2014 (GA Res. 69/109 of 6 February 2015); GA, Oceans and Law of the Sea: Report of the Secretary General, UN Doc. A/63/50 (2008); GA, Sustainable Fisheries: Report of the Secretary General, UN Doc. A/67/315 (2012); GA Res. 44/225 of 22 December 1989; GA Res. 45/197 of 21 December 1990; GA Res. 46/215 of 20 December 1991; GA Res. 61/105 of 6 March 2007; GA Res. 64/72 of 4 December 2009; ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45; ILC, Responsibility of States for Internationally Wrongful Acts, GA Res. 56/83 of 12 December 2001, Annex; OECD High Seas Task Force, Closing the Net: Stopping Illegal Fishing on the High Seas (2006); OECD, Fish Piracy: Combatting Illegal, Unreported and Unregulated Fishing (2004); 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 20, 1892, for the Determination of Questions between the Two Governments concerning the Jurisdictional Rights of the United States in the Waters of the Bering Sea, vol. 1 (1985); Report of the International Technical Conference on the Conservation of the Living Resources of the Sea (1955); World Charter for Nature of 28 October 1982, annexed to GA Res. 37/7 of 28 October 1982; UN DOALOS, The Regime for High-Seas Fisheries: Status and Prospects (1992); UNCED, The Rio Declaration on the Environment and Development, UN Doc. A/CONF.151/5/REV.1 (1992), ILM 31, 874 (Rio Declaration); World Commission on Environment and Development, Report: Our Common Future (1988) Cases: Award between the United States and the United Kingdom, Relating to the Rights of Jurisdiction of United States in the Bering’s Sea and the Preservation of Fur Seals (United States v. United Kingdom), Decision of 15 August 1893, RIAA XXVIII, 263; ICJ, Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Merits, Judgment of 5 February 1970, ICJ Reports (1970), 3; ICJ, Nottebohm (Liechtenstein v. Guatemala), Merits, Judgment of 6 April 1955, ICJ Reports (1955), 4; ICJ, Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment of 4 December 1998, ICJ Reports (1998), 432; ICJ, Fisheries Jurisdiction Case (United Kingdom of Great Britain and Ireland v. Iceland), Merits, Judgment of 25 July, ICJ Reports (1974), 3; ITLOS, Case Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile v. European Community), Constitution of Chamber, Order 2000/3 of 20 December 2000, available at: https:// www.itlos.org/fileadmin/itlos/documents/cases/case_no_7/Ord.2000.3.E.pdf; ITLOS Case Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile v. European Community), Order 2001/1 of 15 March 2001, available at: https://www.itlos.org/fileadmin/itlos/documents/cases/ case_no_7/Ord.2001.1.E.pdf; ITLOS, The M/V ‘Saiga’ (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Merits, Judgment of 1 July 1999, ITLOS Reports (1999), 10; ITLOS, The M/V ‘Virginia G’ Case (Panama v. GuineaBissau), Judgment of 14 April 2014, available at: http://www.itlos.org/index.php?id=171; ITLOS, Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional Measures, Order of 27 August 1999, ITLOS

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Reports (1999), 280; ITLOS, The ‘Tomimaru’ Case (Japan v. Russian Federation), Prompt Release, Judgment of 6 August 2007, ITLOS Reports (2005–2007), 68; WTO, Chile-Measures Affecting the Transit and Importation of Swordfish, Request for the Establishment of a Panel by the European Communities of 7 November 2000, WT/DS/ 193/2 (00-4761); WTO, Chile – Measures Affecting the Transit and Importation of Swordfish, Agreement between the European Communities and Chile of 6 April 2001, WT/DS193/3 (01-1770); WTO, Chile – Measures Affecting the Transit and Importation of Swordfish, Communication from the European Communities of 9 April 2001,WT/ DS193.Add.1 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘All States’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘duty to take […] measures […] for the conservation of the living resources’. . a) ‘have the duty to take’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) ‘or to cooperate with other States in taking’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) ‘measures […] for the conservation’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (i) ‘conservation’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (ii) ‘measures’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘as may be necessary’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. ‘for their respective nationals’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 5 13 13 14 14 23 27 27 31 32 34

I. Purpose and Function The fundamental objective of Art. 117 is to ensure the conservation of the living resources 1 of the high seas (� Part VII) through the imposition of a duty on all States to control the activities of their nationals. This duty can be seen as the quid pro quo for the right to fish on the high seas which is guaranteed to all States by Art. 87 (1)(e) and concretised in Art. 116. 1 Art. 117 is the first of three provisions (Arts. 117–119) that set out the means by which the objectives of conservation and management of the living resources of the high seas are to be achieved. Art. 117 imposes an obligation on all States to take such measures, or to cooperate with 2 other States in taking such measures, as are necessary to control the activities of their nationals to ensure conservation of the living resources of the high seas. Whereas in the exclusive economic zone (EEZ) and territorial sea the exploitation of marine living resources is subject to coastal State jurisdiction,2 on the high seas, the maintenance of the public order of the oceans is achieved through the ascription of exclusive jurisdiction over vessels on the high seas to the flag State by virtue of Art. 92 (1).3 The primary function of Art. 117 is therefore to clarify the obligations incumbent on flag States. However, nothing in Art. 117 restricts its application to flag States and their vessels, or only to parties to the Convention. The obligation is extended to all States. This includes non-fishing States, coastal States with EEZs adjacent to the high seas areas in which fishing is taking place, and new entrants into a fishery. In addition, the obligation applies in respect of all nationals, without exception. Art 117 thus envisages the possibility of both flag States and non-flag States taking measures to control the activities of their natural and juridical nationals in respect of their engagement with the activities of vessels flagged in their own or other States. In this respect, Art. 117 thus serves to operationalise the customary international law duties to conserve and to cooperate and the general international law principles relating both to flag State jurisdiction as articulated in Arts. 91, 92 and 94 and to the nationality of juridical or natural persons. As Art. 117 makes clear, the duty to take conservation measures applies to all living marine 3 resources in all areas of the high seas. This includes marine mammals in the high seas which, 1 2 3

See generally Rayfuse on Art. 116. See Arts. 2 (1), 56 (1)(a), 77 (1). For details on the exclusive flag State jurisdiction, see generally Guilfoyle on Art. 92.

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by virtue of Art. 120 and Art. 65, are exempt from the freedom of exploitation enjoyed in respect of other marine living resources such that their exploitation may be prohibited. 4 The conservation and management objectives to be attained in respect of marine living resources in general are further elaborated in Art. 119, while Art. 118 provides guidance on the possible forms of international cooperation. However, beyond these general framework provisions, the Convention leaves it up to States to work out the methodologies, including cooperative methodologies, for how to attain these conservation goals. 4 Art. 117 envisages both unilateral and cooperative action on the part of States. In requiring cooperation with other States, Art. 117 recognises the rights, interests and duties of both fishing and non-fishing States in the living resources of the high seas. In addition, it foreshadows the need to agree on measures for the EEZ and the high seas in respect of species that occur in both areas that respect the rights, duties and interests of coastal States as provided for in Arts. 63 (2) and 64–67 and as referred to in Art. 116. Finally, the option of cooperative action also recognises the possibility that a State may invoke the assistance of other States in taking the necessary measures in respect of its nationals.

II. Historical Background It is axiomatic that as a biologically renewable resource the supply of fish is potentially unlimited. To achieve this potential, however, appropriate management of the resource is necessary. Even GROTIUS acknowledged that restriction of fishing effort might be necessary if the resource were found to be exhaustible. He simply failed to conceive of it ever becoming so.5 However, by the 19th century the spectre of exhaustibility had reared its head and instances of stock of depletion due to overfishing had begun to occur. By the end of that century the problem of stock depletion had become a significant one and States were forced to recognise that conservatory efforts would be required. 6 6 The first major attempt to plead conservation in support of an attempt to restrict exploitation of marine living resources came in the 1893 Bering Sea Fur Seals Arbitration. 7 The arbitration arose out of the seizure, trial and sentencing of British schooners harvesting fur seals off the Alaskan coast by the United States. At the time, the United States claimed a three mile territorial sea. However, the vessels arrested were taking seals well outside this limit. Recognising the novelty of its claims the United States argued, inter alia, that it had a property right in the fur seals due to their presence for certain periods of the year on United States territory and that, due to the importance of the industry to the United States, it had the right to protect these seals on the high seas in the interests of conservation. The British made much of the novelty, and therefore unacceptability, of the arguments, countering, inter alia, that the habits of the fur seals were such that they were not the subject of property and that, given the long recognised freedom to utilise the resources of the high seas, any conservation measures would have to be taken by agreement between the States concerned. 8 7 The United States lost its case, the tribunal holding that, ‘[t]he United States has not any right of protection or property in the fur seals frequenting the islands of the United States in 5

4

For further information, see Rayfuse on Art. 120 MN 11 and Harrison/Morgera on Art. 65. Hugo Grotius, The Freedom of the Seas of The Right Which Belongs to the Dutch to Take Part in the East Indian Trade (1608, translated 1916). 6 Frank W. Newton, Inexhaustibility as a Law of the Sea Determinant, Tex. Int’l L. J. 16 (1981), 369–432. 7 Award between the United States and the United Kingdom, Relating to the Rights of Jurisdiction of United States in the Bering’s Sea and the Preservation of Fur Seals (United States v. United Kingdom), Decision of 15 August 1893, RIAA XXVIII, 263. 8 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 20, 1892, for the Determination of Questions between the Two Governments concerning the Jurisdictional Rights of the United States in the Waters of the Bering Sea, vol. 1 (1985), 56, available at: http://archive.org/stream/arbitrationfurse02beri/arbitrationfurse02beri_djvu.txt. 5

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Bering Sea, when such seals are found outside the ordinary 3-mile limit’.9 Nevertheless, the case was of significant import in introducing the concept of conservation into high seas fisheries and in confirming the principle that conservation measures should be adopted by agreement among States. The notion of conservation aimed at in the early international fisheries conventions 8 concluded after the Bering Fur Seals Arbitration was that of conserving marine resources to ensure their continued availability for maximal exploitation for food purposes. This conception of conservation was adopted and refined by the International Technical Conference on the Conservation of the Living Resources of the Sea which met in Rome in 1955. According to the Conference Report: ‘The immediate aim of conservation of living marine resources is to conduct fishing activities so as to increase, or at least to maintain, the average sustainable yield of products in a desirable form […] The principle objective of conservation of the living resources of the sea is to obtain the optimum sustainable yield so as to secure a maximum supply of fish and other marine products […].’ 10

The Rome definition was included by the International Law Commission in its final Draft Articles Concerning the Law of the Sea in 195611 and in Art. 2 of the 1958 Convention on Fishing and Conservation of the Living Resources of the High Seas (High Seas Fishing Convention) which provided: ‘conservation of the living resources of the high seas” means the aggregate of the measures rendering possible the optimum sustainable yield from these resources so as to secure a maximum supply of food and other marine products.’

Central to the principle of conservation of marine resources is the duty to adopt appropriate 9 conservation measures. This duty was provided for in Art. 1 (2) High Seas Fishing Convention which provided: ‘All States have the duty to adopt, or to co-operate with other States in adopting, such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas.’

This duty was recognised by the International Court of Justice (ICJ) in 1974 in the Fisheries Jurisdiction Case where it stated: ‘It is one of the advances in maritime international law resulting from the intensification of fishing, that the former laissez-faire 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 the needs of conservation for the benefit of all.’12

In his concurring opinion, Judge DILLARD even suggested that the duty to take conservation measures had achieved the status of a norm of customary international law. 13 During the UNCLOS negotiations, a number of proposals were put forward suggesting 10 amendments to the wording of Art. 1 (2) of the High Seas Fishing Convention seeking to articulate more specifically either the means or the objectives of the conservatory measures to be taken. With respect to conservatory objectives, the draft ocean space treaty put forward by Malta in 1971 repeated Art. 1 (2) but omitted from the definition of conservation in Art. 2 the reference to securing a food supply.14 In 1972, Japan proposed the adoption of a regime to ensure ‘appropriate conservation measures’ aimed at achieving ‘the maximum sustainable 9

Bering Fur Seals Arbitration (note 7), 269. UN, Report of the International Technical Conference on the Conservation of the Living Resources of the Sea, UN Doc. A/CONF.10/6 (1955), 1, 2. 11 ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12, 34 (commentary to Art. 50). 12 ICJ, Fisheries Jurisdiction Case (United Kingdom of Great Britain and Ireland v. Iceland), Merits, Judgment of 25 July 1974, ICJ Reports (1974), 3, para. 72. 13 Ibid., para. 62. 14 Sea-Bed Committee, Malta: Draft Ocean Space Treaty, UN Doc. A/AC.138/53 (1971), GAOR 26th Sess. Suppl. 21 (A/8421), 105, 114 (Art. 1 (7)) and 118 (Art. 6 (1)). 10

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yields of fishery resources and thereby to secure and maintain a maximum supply of food and other marine products.’15 The objective of conservation of high seas living resources was also addressed in a 1974 proposal by Ecuador, Panama and Peru, where it was suggested that high seas fishing was to be ‘carried out by techniques and methods which do not jeopardize adequate conservation of renewable resource’. Although food security was not mentioned, the interests of the coastal State in ‘maintaining the productivity of renewable resources’ in areas adjacent to areas under national sovereignty was.16 With respect to the means of conservation, in 1971 the United States proposed cooperation with appropriate international fisheries organisations in the regulation and enforcement of conservation measures for high seas fisheries.17 This was modified in 1974 to articulate the duty on States ‘acting individually and through regional and international fisheries organisations’ to take specific conservation measures for the living resources of the high seas’.18 A proposal by the Organisation of African Unity called for regulation through the establishment of an ‘international sea fisheries regime’ which would ensure compliance with ‘widely accepted fisheries management principles’.19 11 At the Third Session of the Conference in 1975, the text that was adopted in the Informal Single Negotiating Text (ISNT) was identical to the text of Art 1 (2) of the High Seas Fishing Convention.20 Significantly, however no corresponding definition of ‘conservation’ was included. An attempt by Canada, in 1976, to include language corresponding to what is now Art. 61 (2), requiring the adoption of conservation and management measures based on the best scientific evidence available, the avoidance of overexploitation and cooperation with other States, was defeated on the basis that the ideas were, at least in part, included in what are now Arts. 118 and 119.21 Accordingly, the Revised Single Negotiating Text repeated the ISNT provision verbatim, merely adding the title.22 12 In 1980, a small but significant change was made to the content of the provision, when the verb ‘to adopt’ was replaced with the verb ‘to take’.23 During UNCLOS III negotiations, the drafting committee took the position that ‘adopt’ should be used to refer to ‘laws’ while ‘take’ should refer to ‘measures’. This was interpreted as meaning that the obligation to ‘take’ measures was broader than the obligation merely to ‘adopt’ and, as was suggested in the earlier proposal submitted by the United States, also encompassed the obligation to enforce those measures.24 No further change was made to the title or to the text of the article that was subsequently adopted as Art. 117.

15 Sea-Bed Committee, Japan: Proposals for a Re ´gime of Fisheries on the High Seas, UN Doc. A/AC.138/SC.II/ L.12 (1972), GAOR 27th Sess. Suppl. 21 (A/8721), 188, 190 (Provision 2.2 (1) and (2)). 16 Sea-Bed Committee, Ecuador, Panama and Peru: Draft Articles for the Inclusion in a Convention on the Law of the Sea, Working Paper, UN Doc. A/AC.138/SC.II/L.2 and CORR. 1 and 2 (1973), GAOR 28th Sess. Suppl. 21 (A/9021-III), 16, 34 (Art. 20 (2)). 17 Sea-Bed Committee, USA: Draft Articles on the Breadth of the Territorial Sea, Straits and Fisheries, UN Doc. A/AC.138/SC/L.4 and Corr.1 (1971), GAOR 26th Sess. Suppl. 21 (A/8421), 241, 242 (Art. III (2)(a)). 18 First Committee UNCLOS III, USA: Draft Article for Inclusion in a Chapter on the High Seas, UN Doc. A/ CONF.62/C.2/L.80 (1974), OR III, 239, para. 2. 19 UNCLOS III, Declaration of the Organization of African Unity on the Issues of the Law of the Sea, UN Doc. A/CONF.62/33 (1974), OR III, 63, 64. 20 UNCLOS III, Informal Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/PART II (1975), OR IV, 152, 167 (Art. 104). 21 Second Committee UNCLOS III, Canada: Articles 103–104(ISNT(II) (1976, mimeo.), reproducted in: Renate Platzo¨der (ed.), Third United Nations Conference on the Law of the Sea: Documents, vol. IV (1983), 329, 330 (Art. 104). 22 UNCLOS III, Revised Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/REV.1/PART II (1976), OR V, 151, 169 (Art. 105). 23 UNCLOS III, Draft Convention on the Law of the Sea (Informal Text), UN Doc. A/CONF.62/WP.10/REV.3 (1980), reproduced in: Renate Platzo¨der, Third United Nations Conference on the Law of the Sea: Documents, vol. II (1982), 179, 236 (Art. 117). 24 US Draft Article (note 18).

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III. Elements 1. ‘All States’ Art. 116 provides that all States have the right for their nationals to engage in fishing on 13 the high seas subject to their treaty obligations and to the rights, interests and duties of coastal States. Art. 117 articulates the correlative obligation to this right, requiring all States to take whatever measures are necessary in respect of their nationals to ensure the conservation of the living resources of the high seas. The reference to ‘all States’, in contradistinction to the reference to ‘States’ in Art. 118, is of more than semantic importance. Whereas Art. 118 requires cooperation in conservation and management between States whose nationals are engaged in exploitation activities, the duty to take conservation measures in respect of nationals in Art. 117 is not limited to States whose vessels fish on the high seas. Rather, consistent with its customary nature,25 the duty to take conservation measures applies to all States, including flag States, coastal States, port States, landlocked, and nonfishing States.26

2. ‘duty to take […] measures […] for the conservation of the living resources’ a) ‘have the duty to take’. The title of Art. 117 repeats the language of Art. 1 (2) of the 14 High Seas Fishing Convention, referring to the obligation to ‘adopt’ measures. However, the text of Art. 117 replaces the verb ‘to adopt’ with the verb ‘to take’. It is the text of the article that is determinative. Hence, the obligation expressed in Art. 117 is ‘to take’ measures. As confirmed by the ICJ in the Fisheries Jurisdiction Case (Spain v. Canada), the difference between the duty to ‘adopt’ measures and the duty to ‘take’ measures is more than semantic. Whereas the former refers only to the obligation to adopt laws and regulations, the latter includes both the obligation to adopt and the obligation to enforce such measures. 27 The duty to take measures is reflected in other international instruments such as the Convention on Biological Diversity (CBD) which requires parties to regulate processes and activities carried out under their jurisdiction or control in areas beyond national jurisdiction, 28 and is regularly reiterated in the annual General Assembly Resolutions on Sustainable Fisheries. 29 By virtue of Art. 92 (1) and the principle of flag State jurisdiction, the duty to take 15 measures falls primarily on the flag State of vessels fishing on the high seas. However, while Art. 117 posits the existence of a duty of flag State responsibility, it is silent on the precise content of that duty and on what constitutes effective control and enforcement in the high sea fishing context. In the absence of specific content, the failure of flag States to take necessary measures in respect of their vessels has notoriously manifested itself in the rise of the use of ‘open registries’ for flagging fishing vessels, the practice of reflagging to avoid controls,30 and in the phenomenon of what is now referred to as illegal, unreported and unregulated (IUU) fishing,31 or fishing that ‘occurs in violation of – or at least with disregard 25

Fisheries Jurisdiction Case (note 12). GA, Sustainable Fisheries: Report of the Secretary General, UN Doc A/67/315 (2012), 17 (para. 76). 27 ICJ, Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment of 4 December 1998, ICJ Reports (1998), 432, para. 84. 28 Art. 4 CBD. 29 See, e. g., GA Res. 66/68 of 28 March 2012; GA Res. 67/79 of 30 April 2013; GA Draft Res. A/69/L.30 of 24 November 2014. 30 FAO, Committee on Fisheries, Flagging of Fishing Vessels on the High Seas, FAO Doc. COFI/93/10 (1993), 2. For discussion see, e. g., Patricia Birnie, Reflagging Vessels on the High Seas, RECIEL 2 (1993), 270. 31 The terminology is embodied in the FAO, International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (2001). For discussion see, William Edeson, The International Plan of Action on Illegal, Unreported and Unregulated Fishing: The Legal Context of a Non-Legally Binding Instrument, IJMCL 16 (2001), 603. 26

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for – applicable fisheries rules, whether adopted at the national or international level’. 32 Combatting IUU fishing has been a major preoccupation of the international community since the early 1990s33 and attention has therefore focused on articulating the precise duties and responsibilities incumbent on flag States to effectively control their fishing vessels as required by Art. 117. These flag State responsibilities are now elaborated on in the 1993 Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas34 (FAO Compliance Agreement), the 1995 UN Fish Stocks Agreement (UNFSA) and in the measures adopted by Regional Fisheries Management Organisations (RFMOs). 16 The Compliance Agreement builds on the concept of flag State responsibility in UNCLOS35 by addressing the deterrence of flagging or reflagging of vessels fishing on the high seas as a means of avoiding compliance with international conservation and management measures for living marine resources, and the failure of flag States to fulfill their responsibilities with respect to fishing vessels entitled to fly their flag to keep them from undermining such measures.36 Parties are to ensure that only authorized vessels fish on the high seas and that authorization is only given where the flag State is satisfied that it is able to effectively exercise its responsibilities under the Agreement in respect of the vessel. 37 These responsibilities include the obligation to obtain information from their vessels pertaining to the area of fishing operations, catch and landing, as well as the obligations to take enforcement measures, to ensure that any contravention is criminalised, and that sanctions are of sufficient gravity both to effect compliance and to deprive offenders of the benefits accruing from their illegal activities.38 17 The UNFSA restricts participation in high seas fisheries to ‘those who play by the rules’, meaning to flag States which are members of the relevant RFMO or arrangement or those which agree to apply the conservation and management measures established by such organisation or arrangement.39 It retains the centrality of the principle of flag State jurisdiction but spells out in greater detail what exactly is expected of States in the exercise of that jurisdiction. In particular, Art. 18 UNFSA on ‘flag State responsibilities’ provides an exposition of the requirements of ‘effective control’ in the context of high seas fishing for straddling and highly migratory fish stocks. It requires all flag States, whether members of a relevant RFMO or arrangement or not, to take necessary measures to ensure their vessels comply with regional and subregional conservation and management measures and do not engage in any activity which undermines the effectiveness of such measures. States are only to authorise their vessels to fish on the high seas where they can exercise their responsibilities in respect of 32 FAO, Implementation of the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, FAO Technical Guidelines for Responsible Fisheries No. 9 (2002), 6. 33 Terje Lobach, Combatting IUU Fishing: Interaction of Global and Regional Initiatives, in: Davor Vidas (ed.) Law Technology and Science for Oceans in Globalisation: IUU Fishing, Oil Pollution, Bioprospecting, OuterContinental Shelf (2010), 109; David J. Doulman, FAO Action to Combat IUU Fishing: Scope of Initiatives and Constraints on Implementation, in: Davor Vidas (ed.) Law Technology and Science for Oceans in Globalisation: IUU Fishing, Oil Pollution, Bioprospecting, Outer-Continental Shelf (2010), 131. 34 Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, 24 November 1993, UNTS 2221, 91. 35 FAO Flagging of Vessels on the High Seas (note 30). 36 Preamble 9 FAO Compliance Agreement. 37 Art. III FAO Compliance Agreement. 38 For discussion, see David Balton, The Compliance Agreement, in: Ellen Hey (ed.) Developments in International Fisheries Law (1999), 31. 39 David Balton, Strengthening the Law of the Sea: The New Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks, ODIL 27 (1996), 125, 138. The obligation to play by the rules was generally accepted by all states during the early stages of the UNFSA negotiations. See United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, Statement Made by the Chairman of the Conference at the Conclusion of the General Debate on 15 July 1993, UN Doc. A/CONF.164/12 (1993). The obligation was contained in Art. 12 (4) of the first negotiating text prepared by the Chairman: United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, Negotiating text (Prepared by the Chairman of the Conference), UN Doc. A/ CONF.164/13 (1993), and was subsequently adopted in Art. 8 (4) UNFSA.

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those vessels effectively. Art. 18 UNFSA provides an extensive, but non-exhaustive, list of measures that are to be taken by flag States to control their vessels including, inter alia, licensing and authorisation schemes, vessel registers, monitoring, compliance and enforcement schemes, and schemes to regulate transshipment. The intention of UNFSA Art. 18 is to build on the concepts established in the Compliance Agreement with the ultimate aim of deterring reflagging of vessels, and ensuring that flag States take their obligations to take conservatory measures in respect of their vessels pursuant to Art. 117 seriously by giving content to the measures they are to take.40 As JUDA puts it, for parties to the UNFSA, ‘free and unlimited access at will is ended, as access is now tied to and limited by the conditions imposed by collective action.’41 While it may be argued that these agreements place unacceptable restrictions on the right 18 of States to grant their nationality to vessels fishing on the high seas as provided for in Art. 90, Art. 117 clearly leaves it up to States to determine what measures may be necessary in respect of their fishing vessels and, moreover, to adopt cooperative agreements to that effect.42 Such agreements include the measures adopted by RFMOs or other arrangements. These agreements are, however, only binding on their parties. This gives rise to a complex patchwork of differing obligations of effective control depending on differing treaty relations.43 The Voluntary Guidelines on Flag State Performance adopted by the FAO in 2013 44 provide some guidance as to generally accepted flag State obligations. However, in the absence of any statement articulating the flag State duties incumbent on all States as a matter of customary international law this complexity continues to be exploited by States whose vessels (and other nationals) engage in IUU fishing.45 Thus, while Art. 117 articulates the basic duty of flag State jurisdiction, the precise content of that duty remains open. The Convention is also silent on the consequences of a failure by a flag State to fulfil its 19 duty to take measures and on the standing of other States to take action in default of effective action by the flag State. Application of the basic rules on State responsibility suggests that only those States which effectively control their vessels enjoy the freedom to fish. 46 In theory, where a flag State is unwilling or unable to effectively control its vessels it should decline to grant its flag. Grant of flag followed by a failure of effective control means the flag State has failed in its duty to exercise its responsibility and jurisdiction effectively. The flag State will therefore be internationally responsible to other States which then acquire a reciprocal right to take action. In other words, flag States which fail to establish or enforce such measures in respect of their vessels will not be exercising effective control, will have failed in their Art. 117 obligations and, arguably, will therefore forfeit the right for their vessels to fish (or to fish free from interference) on the high seas.47 This possibility was recognised by the UN Secretary General in his 2008 Report on Oceans 20 and the Law of the Sea, in which it was noted that ‘there is now a prevailing view that fishing vessels on the high seas which are not effectively controlled by their flag States are liable to 40

Moritaka Hayashi, The Straddling and Highly Migratory Fish Stocks Agreement, in: Hey (note 38), 55. Lawrence Juda, The 1995 United Nations Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks: A Critique, ODIL 28 (1997) 147, 155. 42 Rosemary Rayfuse, The Interrelationship between the Global Instruments of International Fisheries law, in: Hey (note 38), 107. 43 OECD High Seas Task Force, Closing the Net: Stopping Illegal Fishing on the High Seas (2006). 44 FAO, Voluntary Guidelines on Flag State Performance (2013). 45 Sustainable Fisheries: Report of the Secretary General (note 26), 17 (para. 76). 46 Rosemary Rayfuse, The Anthropocene, Autopoiesis and the Disingenuousness of the Genuine Link: Addressing Enforcement Gaps in the Legal Regime for Areas Beyond National Jurisdiction, in: Alex. G. Oude Elferink/Erik Jaap Molenaar (eds.), The International Legal Regime of Areas beyond National Jurisdiction: Current and Future Developments (2010). 47 This suggestion is raised, but not answered in FAO, Technical Consultation on High Seas Fishing, Legal Issues Concerning High Seas Fishing, FAO Doc FI/HSF/TC/92/8 (1992), 165. See also, Rosemary Rayfuse, Possible Actions Against Vessels Flying the Flag of States not Meeting the Criteria for Flag State Performance, in: FAO, Report of the Expert Consultation on Flag State Performance, FAO Fisheries and Aquaculture Report, No. 918 (2009), 28, 29. 41

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sanctions by other States should they happen to contravene international conservation and management measures’.48 The legal basis to take action will rest with ‘injured’ or ‘specially affected’ States, in particular, with coastal States with an EEZ adjacent to the high seas area in which the flag State is operating or other States participating in the same high seas fishery. 49 It remains uncertain whether any other State ‘would have standing to challenge an abuse of rights by flag States on the high seas simply on the basis that this is detrimental to it either as a potential user of the freedom or because it has a vested interest in the conservation of marine living resources per se’.50 21 In practice, both the right to take action and the nature of any permissible action remain contested. The issues were raised but, for want of jurisdiction, not decided in the Fisheries Jurisdiction Case (Spain v. Canada)51 where the ICJ was called upon to rule on the legality of Canada’s arrest of the Spanish fishing vessel the ESTAI on the high seas in the Northwest Atlantic Fisheries Organization (NAFO) Convention area. As framed by the Court, the essence of the dispute was whether Canada had violated Spain’s rights under international law by exercising non-flag State jurisdiction.52 In his Separate Opinion, Judge ODA articulated the issue more fully as: ‘whether Canada violated the rule of international law by claiming and exercising fisheries jurisdiction (namely, the prescribing of fishery regulations – including the exclusion of fishing vessels flying the Spanish flag –, the enforcement of those regulations by Canadian government authorities and the imposition of penal sanctions on a Spanish vessel and tis master) in an area of the high seas beyond the limit of its exclusive economic zone, or whether Canada was justified in exercising fisheries jurisdiction in that area, on the ground of its honestly held belief that the conservation of certain fish stocks was urgently required as a result of the fishery conservation crisis in the Northwest Atlantic – irrespective of the NAFO Convention, which neither provides for the unilateral adoption by coastal states of fishery regulations intended to apply in the Regulatory Area, nor entrusts coastal States with the enforcement of such regulation in that area of the high seas.’ 53

Similar issues arose in the EU-Chile Swordfish dispute where the EU contested, as an invalid assertion of extraterritorial jurisdiction, Chile’s prohibition on Spanish vessels landing swordfish catches in Chilean ports when taken on the high seas but in contravention of Chilean conservation measures. As distinct from the Fisheries Jurisdiction Case (Spain v. Canada), no RFMO existed with regulatory jurisdiction in the area. The European Union requested the establishment of a World Trade Organisation panel to determine whether the Chilean bans on landings and transhipments violated Arts. V and XI of the General Agreement on Tariffs and Trade.54 Chile and the EU then submitted the dispute to the International Tribunal for the Law of the Sea (ITLOS), both parties claiming the other had breached Arts. 116–119.55 What the two Tribunals would have made of these cases remains a matter for speculation as both cases were suspended, following negotiations between the parties, in March 2001.56 48

GA, Oceans and Law of the Sea: Report of the Secretary General, UN Doc. A/63/50 (2008), para. 249. ILC, Responsibility of States for Internationally Wrongful Acts, GA Res. 56/83 of 12 December 2001, Annex (Arts. 42 and 48). 50 Simone Borg, Conservation on the High Seas: Harmonizing International Regimes for the Sustainable Use of Living Resources (2012), 36. 51 Fisheries Jurisdiction (Spain v. Canada) (note 27). 52 Ibid., para. 35. 53 Ibid., para. 7. 54 WTO, Chile-Measures Affecting the Transit and Importation of Swordfish, Request for the Establishment of a Panel by the European Communities of 7 November 2000, WT/DS/193/2 (00-4761). 55 ITLOS, Case Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the SouthEastern Pacific Ocean (Chile v. European Community), Constitution of Chamber, Order 2000/3 of 20 December 2000, available at: https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_7/Ord.2000.3.E.pdf. 56 See, WTO, Chile – Measures Affecting the Transit and Importation of Swordfish, Agreement between the European Communities and Chile, Communication from the European Communities of 6 April 2001, WT/DS/ 193/3 (01-1770) and WTO, Chile – Measures Affecting the Transit and Importation of Swordfish, Agreement between the European Communities and Chile, Communication from the European Communities of 9 April 49

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In addition to flag States, port and other States are also under an obligation to take 22 measures for their respective nationals. Port State measures are provided for in Art. V(2) of the Compliance Agreement, Art. 23 of the UNFSA, and in the FAO Agreement on Port States Measures57 which requires port States to take measures in respect of foreign flagged fishing vessels seeking entry into their ports. Art. 3 (2) of the 1989 Convention for the Prohibition of Fishing with Long Drift-nets in the South Pacific58 restricts access to ports and facilities for all foreign vessels involved in driftnet fishing and port State measures have been adopted in a number of RFMOs. Adoption of trade related measures such as catch documentation and certification schemes as well as export or import prohibitions are also increasingly prevalent in RFMOs. While applicable to flag States such measures are also clearly to be adopted by non-flag State members of these organisations. b) ‘or to cooperate with other States in taking’. Art. 117 requires States to take, or to 23 cooperate in taking, the measures required for the conservation of the living resources of the high seas. As use of the conjunction ‘or’ indicates, States remain free to adopt measures unilaterally. Consistent with the principles of freedom of fishing and flag State jurisdiction, Art. 117 provides a wide margin of appreciation to States in determining what measures to take in respect of their nationals.59 However, the duty to cooperate is an inherent element of the duty to conserve a shared 24 natural resource60 and is recognised as a general principle of international law.61 In the high seas context, the duty to take conservation measures is thus both an individual one and a cooperative one, perhaps best described as an obligation to ‘act[ing] individually in applying to their nationals the conservation measures determined in cooperation with other States’. 62 This formulation presupposes the existence of cooperatively agreed upon measures. While no modus operandi for how this cooperation is to be achieved is provided, consistent with general international law, cooperation may be through any ad hoc, bilateral or multilateral processes depending on the circumstances. The Compliance Agreement and the UNFSA both constitute examples of cooperatively agreed measures that States are to take in respect of their nationals, as do the conservation and management measures adopted by RFMOs. Other cooperatively agreed ‘soft law’ measures include the Code of Conduct for Responsible Fisheries63 and the associated International Plans of Action dealing with Sharks, 64 Seabirds,65 Fishing Capacity,66 and Illegal, Unreported and Unregulated Fishing,67 as well as the International Guidelines for the Management of Deep-Sea Fisheries in the High Seas, 68 International Guidelines on Bycatch Management and reduction of Discards, 69 Guidelines 2001, WT/DS193.Add.1, suspending the WTO proceedings. The ITLOS proceedings were suspended by ITLOS Order 2001/1, ITLOS, Case Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile v. European Community), Order 2001/1 of 15 March 2001, available at: https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_7/Ord.2001.1.E.pdf. 57 FAO, Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, 22 November 2009, available at: http://www.fao.org/fishery/topic/166283/en. 58 Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific, 24 November 1989, 29 ILM 29 (1990), 1454. 59 Stuart Kaye, International Fisheries Management (2001), 146. 60 Carl Fleisher, Fisheries and Biological Resources, in: Rene ´-Jean Dupuy/Daniel Vignes, A Handbook on the New Law of the Sea, vol. II (1991), 989, 1118. 61 Fisheries Jurisdiction Case (UK v. Iceland) (note 12), para. 72. 62 UN DOALOS, The Regime for High-Seas Fisheries: Status and Prospects (1992), 10 (para. 19). 63 FAO, Code of Conduct for Responsible Fisheries (1995). See generally Gerald Moore, The Code of Conduct for Responsible Fisheries, in: Hey (note 38), 85. 64 FAO, International Plan of Action for the Conservation and Management of Sharks (1998). 65 FAO, International Plan of Action for reducing Incidental Catch of Seabirds in Longline Fisheries (1998). 66 FAO, International Plan of Action for the Management of Fishing Capacity (1999). 67 FAO, International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (2001). 68 FAO, International Guidelines for the Management of Deep-Sea Fisheries in the High Seas (2009). 69 FAO, International Guidelines on Bycatch Management and reduction of Discards (2011).

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for the Ecolabelling of Fish and Fishery Products from Marine Capture Fisheries, 70 and the Voluntary Guidelines for Assessing Flag States Performance. 71 Also included are measures adopted by the UN General Assembly articulated, for example, in its resolutions on largescale high seas pelagic driftnet fishing72 and bottom trawling.73 25 Cooperation in taking measures also implies cooperation in enforcing measures. While a general right of non-flag State action may remain contested, 74 it is clear that flag States are at liberty to agree to measures being taken in respect of their vessels by other States. Multilaterally, both the Compliance Agreement and the UNFSA strengthen the hand of non-flag States to take action in situations where flag States fail. The UNFSA, in particular, sets out a range of measures that can be taken by non-flag States in certain circumstances to bolster the efficacy of flag State control, including at-sea boarding and inspection and port State measures.75 Measures adopted by a number of RFMOs similarly establish procedures for varying degrees of non-flag State action. Bilateral agreements may also provide a basis for non-flag State measures and flag States remain competent, at all times, to agree to the exercise of non-flag State action in respect of their vessels on an ad hoc basis. 26 As a result of the wide margin of appreciation given to States to act unilaterally, disagreement exists as to whether taking measures less onerous than those agreed upon in cooperation with other States constitutes a violation of the recognised interests of other States and therefore a breach of international law.76 Art. 117 provides no guidance on how to resolve competing claims as to precedence between unilateral measures adopted by States and those adopted by international cooperation. In addition, the wide margin of appreciation given to States may result, as in the Canada/Spain and EU-Chile cases, in different measures being applied by flag States in respect of high seas fisheries on the one hand and coastal States in EEZs adjacent to high seas areas on the other. The Convention provides no guidance on how to resolve issues of inconsistency between the coastal and flag State measures. The issue is addressed in the UNFSA but only in so far as the UNFSA calls for ‘compatibility’ between the measures adopted without providing any guidance on whose measures are to be compatible with whose and in what way.77 27

c) ‘measures […] for the conservation’. (i) ‘conservation’. Unlike the 1958 High Seas Fishing Convention, which defined ‘conservation’ as ‘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’, no definition of the meaning of ‘conservation’ or of ‘conservation measures’ is included in UNCLOS. Art. 119 provides some guidance as to what conservation requires. In particular, in recognition of the various competing non-biological interests, Art. 119 (1)(a) adopts what is known as the ‘qualified maximum sustainable yield’ (‘qualified MSY’) approach calling upon States to take conservation measures ‘on the basis of the best scientific evidence available’ in order to: ‘maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors, including the special requirements of developing States, and taking into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether subregional, regional or global.’

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FAO, Guidelines for the Ecolabelling of Fish and Fishery Products from Marine Capture Fisheries (2009). See supra, note 44. 72 GA Res. 44/225 of 22 December 1989; GA Res. 45/197 of 21 December 1990; GA Res. 46/215 of 20 December 1991. 73 GA Res. 61/105 of 8 December 2007 and GA Res. 64/72 of 4 December 2009. 74 Rosemary Rayfuse, Non-Flag State Enforcement in High Seas Fisheries (2004), 355. 75 Arts. 21–23 UNFSA. 76 Borg (note 50), 37. 77 Alex G. Oude Elferink, The Determination of Compatible Conservation and Management Measures for Straddling and Highly Migratory Fish Stocks, MPYUNL 5 (2001), 551. 71

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Art. 119 (1)(b) further requires conservation measures to take into consideration the effects on associated and dependent species to ensure they are maintained or restored to levels at which their reproduction is not seriously threatened. 78 By requiring consideration of both the qualified MSY and the dependent and associated 28 species, UNCLOS goes beyond the earlier conception of conservation as being directed solely at ensuring the sustainability of stocks for exploitation as a food source to include both social and ecosystem considerations.79 This broader interpretation of the meaning of conservation was adopted by the ITLOS in the ITLOS Southern Bluefin Tuna Cases where it noted that ‘conservation of the living resources of the sea is an element in the protection and preservation of the marine environment’.80 Since the adoption of UNCLOS, a range of new principles and concepts have been 29 developed to give meaning to and guide the interpretation of the term ‘conservation’. Developed through the processes, declarations and programs of action emanating from, inter alia, the 1972 UN Conference on the Human Environment, the 1987 World Commission on Environment and Development and the 1992 UN Conference on Environment and Development, these principles and concepts provide new assumptions and understandings on which conservation and management of the marine living resources of the high seas are now based.81 Central to these has been the articulation of the concept of sustainable development. Developed by the WCED in 1987,82 and endorsed by states in the Rio Declaration83 and Agenda 21,84 the goal of sustainable development as it relates to the conservation and management of living resources is to ensure their continuing availability to meet the needs of both present and future generations.85 In other words, ‘living resources shall not be utilized in excess of their natural capacity for regeneration’. 86 A number of substantive principles and procedural requirements have been developed which 30 relate to the attainment of the sustainable use of living resources. These include, inter alia: maintenance of biological diversity; intergenerational equity; the precautionary approach; international cooperation on the basis of the common concern of mankind and common but differentiated responsibilities; informed and transparent decision making; national implementation of international commitments; institutional capacity to evolve to accommodate new members; and effective monitoring, compliance and enforcement.87 Many of these principles and requirements are now found in Art. 5 UNFSA which requires States, inter alia, to adopt conservation measures to ensure long-term sustainability and promote optimum utilization. With the emergence of the concept of sustainable development, the concept of conservation as articulated in Art. 117 must thus be read as meaning the sustainable use of living resources to ensure their continuing availability to meet the needs of both present and future generations. (ii) ‘measures’. Measures to be taken are those that are necessary for the conservation of 31 the living resources of the high seas. The requirement of necessity affects the nature of the 78

See further Rayfuse on Art. 119 MN 15. Borg (note 50), 35. 80 ITLOS, Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional Measures, Order of 27 August 1999, ITLOS Reports (1999), 280, para. 70. 81 For an overview see, FAO, UNCED and its Implications for Fisheries, FAO Doc. COFI/93/INF/8 (1993). 82 World Commission on Environment and Development, Report: Our Common Future (1988). 83 UNCED, The Rio Declaration on the Environment and Development, UN Doc. A/CONF.151/5/REV.1 (1992), ILM 31, 874. 84 UNCED, Report of the United Nations Conference on the Environment and Development, UN Doc. A.CONF/151/26/REV.1 (Vol. I) (1992), 9. 85 Report: Our Common Future (note 82), 8. 86 World Charter for Nature of 28 October 1982, annexed to GA Res. 37/7 of 28 October 1982, para. 10(a). 87 FAO, Report of the Technical Consultation on High Seas Fishing (1992), s. C and D. See also, Linda Paul, Expanding Awareness: Emerging Approaches to Fisheries Management (1996); David J. Doulman, An Overview of World Fisheries: Challenges and Prospects for Achieving Sustainable Resource Use(1996); Patricia Birnie, Are Twentieth-Century Marine Conservation Conventions Adaptable to Twenty-First Century Goals and Principles?: Part I, IJMCL 12 (1997), 307. 79

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measures that may be taken in that they must not unjustifiably encroach on the freedom to fish on the high seas. The requirement that the measures be in respect of the conservation of the living resources of the high seas affects the scope of the measures that may be taken in that the obligation extends not only to fish but to all living resources of the high seas. Thus, States cannot disregard their obligations under other provisions of UNCLOS and other rules of international law, including their obligations not to interfere with the rights and interests of other States in enjoying the freedom of fishing and their obligations relating to protection of the marine environment including marine biodiversity.88 32 Prima facie, measures agreed upon internationally may be evidence of what is ‘necessary’.89 To this end, measures to be taken will, at a minimum, include those required by Art. 119 and, to the extent applicable, by Art. 94 relating to jurisdiction and control in administrative, technical and social matters, and safety at sea. In addition, measures will also include those required by the Compliance Agreement and the UNFSA as well as, for their parties, any measures adopted by RFMOs. The onus will be on any State party acting unilaterally to prove that their measures satisfy the criterion of necessity, particularly where those unilateral measures differ from those adopted by these cooperation agreements. Nevertheless, difficulty remains in proving that international law has generated a minimum ‘necessary’ set of conservation standards that enjoy universal acceptance and are thus binding on all states. 33 Beyond articulating the criteria of necessity, however, Art. 117 imposes no limits on the nature or types of measures that can be adopted. As noted by the ICJ in the Fisheries Jurisdiction Case (Spain v. Canada), the terminology of conservation measures is ‘descriptive not normative’. It refers to any act, step or proceeding and ‘imposes no particular limit on [the measures’] material content or on the aim pursued thereby’.90 It is sufficient that the purpose of the measure ‘is to conserve and manage living resources and that, to this end, it satisfies various technical requirements’.91 Who may take measures and the area or persons to which they may relate is not part of the definition of conservation measures. 92 Moreover, ‘conservation measures’ is not limited to measures that are ‘in conformity with international law’.93 In the Court’s opinion, the measures taken by Canada, even though more stringent than existing internationally agreed measures, were, nevertheless, conservation measures as understood in international law. The disagreement was simply as to whether those measures could be enforceable against non-nationals.

4. ‘for their respective nationals’ Art. 117 applies to all States and their nationals. The term ‘nationals’ is generally taken as referring to fishing vessels to which the rules on nationality of ships set out in Arts. 91 and 92 apply. As confirmed in the M/V ‘Saiga’ (No. 2) Case94 and M/V ‘Virginia G’ Case,95 the nationality of a ship is equated with the flag it flies. Thus, Art. 117 articulates the responsibility incumbent on flag States in the high seas fisheries context. This duty exists in addition to any flag State duties under Art. 94 (1). 35 However, nothing in Art. 117 limits its applicability to vessels only. Given the reference in Art. 117 to all States (not all flag States), it must be read as also requiring States to take 34

88 Jose ´ A. De Yturriaga, The International Regime of Fisheries: From UNCLOS 1982 to the Presential Sea (1997), 154. 89 Borg (note 50), 42. 90 Fisheries Jurisdiction (Spain v. Canada) (note 27), para. 66. 91 Ibid., para. 70. 92 Ibid. 93 Ibid., para. 73. 94 ITLOS, The M/V ‘Saiga’ (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Merits, Judgment of 1 July 1999, ITLOS Reports (1999), 10. 95 ITLOS, The M/V ‘Virginia G’ Case (Panama v. Guinea-Bissau), Judgment of 14 April 2014, available at: http://www.itlos.org/index.php?id=171.

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measures in respect of corporations or individuals on the basis of the jurisdictional linkages between States and natural or juridical persons found in customary international law and articulated in the Nottebohm96 and Barcelona Traction97 cases. The persistence of IUU fishing has led to the recognition of the need effectively to ‘pierce the flag State veil’ to attach responsibility for and consequences to the activities of fishing companies, crew members and even consumers.98 Recognition of this bifurcation of responsibility was confirmed by the ITLOS in the Tomimaru case where it noted that ‘it cannot be assumed that a change in ownership [of a vessel] automatically leads to a change or loss of its flag’. 99 The obligation to take measures in respect of nationals other than vessels has been 36 positively recognised in the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing100 which calls on all States, without prejudice to the primary responsibility of the flag State, to take measures or cooperate to ensure that nationals subject to their jurisdiction do not support or engage in IUU fishing. States are to cooperate to identify those nationals who are operators or beneficial owners of vessels involved in IUU fishing and they are to ensure that sanctions of sufficient severity are in place against all nationals, including crew members, involved in IUU fishing. States are also to actively discourage their nationals from flagging vessels in States that do not meet their flag State responsibilities.101 Thus, while the flag State retains jurisdiction in respect of its vessels, other States cannot use their inability to enforce against a vessel as an excuse for not adopting measures to control the activities of their own juridical or natural nationals. As with flag States, however, the Convention is silent on the consequences of a State’s failure to adopt such measures, absent a specific multilateral or bilateral agreement to do so. It is now generally accepted that the customary status of the duty to conserve and to take 37 conservation measures articulated in Art. 117 is not open to dispute. However, the lack of specificity in UNCLOS of the content of the duty, and the absence of any provision for its enforcement, remain problematic.

Article 118 Cooperation of States in the conservation and management of living resources States shall cooperate with each other in the conservation and management of living resources in the areas of the high seas. States whose nationals exploit identical living resources, or different living resources in the same area, shall enter into negotiations with a view to taking the measures necessary for the conservation of the living resources concerned. They shall, as appropriate, cooperate to establish subregional or regional fisheries organizations to this end. Bibliography: Patricia Birnie/Alan Boyle/Catherine Redgwell, International Law and the Environment (3rd edn. 2009); Robin R. Churchill/Alan. V. Lowe, The Law of the Sea (3rd edn. 1999); Ellen Hey, The Regime for the Exploitation of Transboundary Marine Fisheries Resources (1989); Albert W Koers, International Regulation of Marine Fisheries: A Study of Regional Fisheries Organisations (1973); Leonard L. Leonard, International Regulation of Fisheries (1944); John F. O’Connor, Good Faith in International Law (1991); Myres S. McDougal, 96

ICJ, Nottebohm (Liechtenstein v. Guatemala), Merits, Judgment of 6 April 1955, ICJ Reports (1955), 4. ICJ, Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Merits, Judgment of 5 February 1970, ICJ Reports (1970), 3. 98 OECD, Fish Piracy: Combatting Illegal, Unreported and Unregulated Fishing (2004); Darren S. Calley, Market Denial and International Fisheries Regulation: The Targeted and Effective Use of Trade Measures Against the Flag of Convenience Fishing Industry (2011). 99 ITLOS, The ‘Tomimaru’ Case (Japan v. Russian Federation), Prompt Release, Judgment of 6 August 2007, ITLOS Reports (2005–2007), 68. 100 IPOA-IUU (note 67). 101 Ibid., paras. 18–21. 97

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International Law and the Law of the Sea: Discussion of McDougal, in: Lewis M. Alexander (ed.) The Law of the Sea: Offshore Boundaries and Zones (1967), 3–42; Myron H. Nordquist/Satya Nandan/Shabtai Rosenne (eds.), ~a, United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995); Francisco Orrego Vicun The Changing International Law of High Seas Fisheries (1991); Marcos A. Orellana, The Swordfish Dispute between the EU and Chile at the ITLOS and the WTO, Nordic Journal of International Law 71 (2002), 55–81; Rosemary Rayfuse, Non-Flag State Enforcement in High Seas Fisheries (2004); Rosemary Rayfuse, Regional Fisheries Management Organisations, in: Donald R. Rothwell/Karen N. Scott/Alex G. Oude Elferink/Tim Stephens (eds.), The Oxford Handbook on the Law of the Sea (2015), 439–462; Philippe Sands/Jacqueline Peel, Principles of International Environmental Law (3rd edn. 2012); Andre Tahindro, Conservation and Management of Transboundary Fish Stocks: Comments in Light of the Adoption of the 1995 Agreement for the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, ODIL 28 (1997), 1–58; A. E. J. Went, Seventy Years Agrowing: A History of the International Council for the Exploration of the Sea 1902–1972 (1972) Documents: FAO, Establishment of the Fishery Committee for the Eastern Central Atlantic, FAO Res. 1/48 (1967), available at: ftp://ftp.fao.org/FI/DOCUMENT/cecaf/CECAFstatutes1967.pdf; FAO Resolution (1962) on the Establishment of the Regional Fisheries Advisory Commission for the South West Atlantic, reproduced in: Jean. E. Carroz, Establishment, Structure, Functions and Activities of International Fisheries Bodies – Regional Fisheries Advisory Commission for the South West Atlantic (CARPAS), FAO Fisheries Technical Paper No. 60 (1966) 21–24; FAO Resolution 2/46 (1967) on the Establishment of the Indian Ocean Fishery Commission, Report of the First Session of the Indian Ocean Fishery Commission, FAO Fisheries reports No. 60 (1968) 12–13; FAO, The State of World Fisheries and Aquaculture: 2014 (2014); GA Res. 46/215 of 20 December 1991; GA Res. 61/105 of 8 December 2007; GA Res. 64/72 of 4 December 2009; ILC, Report of the International Law Commission: Regime of the High Seas, UN Doc. A/2456 (1953), GAOR 8th Sess. Suppl. 9, 12–20; ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/ 3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45; OECD High Seas Task Force, Closing the Net: Stopping Illegal Fishing on the High Seas (2006) Cases: Award between the United States and the United Kingdom, Relating to the Rights of Jurisdiction of United States in the Bering’s Sea and the Preservation of Fur Seals (United States v. United Kingdom), Decision of 15 August 1893, RIAA XXVIII, 263; ICJ, Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment of 4 December 1998, ICJ Reports (1998), 432; ICJ, Fisheries Jurisdiction Case (United Kingdom of Great Britain and Ireland v Iceland), Merits, Judgment of 25 July, ICJ Reports (1974), 3; ICJ, Fisheries Jurisdiction Case (Federal Republic of Germany v. Iceland), Merits, Judgment of 25 July 1974, ICJ Reports (1974), 175; ICJ, Gabcˇ´ıkovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997, ICJ Reports (1997), 7; Lac Lanoux Arbitration (France v. Spain) Award of 16 November 1957, ILR 24, 101; ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Netherlands/Denmark), Judgment of 20 February 1969, ICJ Reports (1969), 3; ICJ, Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010, ICJ Reports (2010), 14; ITLOS, MOX Plant Case (Ireland v. United Kingdom), Provisional Measures, Order of 3 December 2001, ITLOS Reports (2001), 95; ITLOS, Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional Measures, Order of 27 August 1999, ITLOS Reports (1999), 280; PCA, Southern Bluefin Tuna Case (Australia and New Zealand v. Japan), Jurisdiction and Admissibility, Award of 4 August 2000, RIAA XXIII, 1, 42 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘States shall cooperate with each other in the conservation and management of living resources in the areas of the high seas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘States whose nationals exploit identical living resources […] shall enter into negotiations’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘They shall, as appropriate, cooperate to establish subregional or regional fisheries organizations’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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I. Purpose and Function 1

Art. 118 articulates the fundamental duty on States to cooperate with each other in conserving and managing the living resources of the high seas. This duty was recognised by the International Court of Justice (ICJ) in the 1974 Fisheries Jurisdiction Cases where it stated:

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‘It is one of the advances in maritime international law, resulting from the intensification of fishing, that the former laissez-faire 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 for the rights of other states and the needs of conservation for the benefit of all. Consequently, both parties have the obligation to keep under review the fishery resources in the disputed waters and to examine together, in the light of scientific and other available information, the measures required for the conservation and development, and equitable exploitation, of those resources, taking into account any international agreement in force between them.’1

The duty is embodied in Art. 117 which requires States to take or cooperate with other States in taking necessary conservation measures for their respective nationals. It is further embodied in Art. 118 which provides that ‘States shall cooperate with each other in the conservation and management of living resources in the areas of the high seas’. 2 In this respect, Art. 118 must be read in conjunction with Arts. 63 to 65 which similarly establish cooperative obligations in respect of transboundary, shared, straddling, highly migratory stocks and associated and dependent species as well as marine mammals. Art. 118 contains three clauses. Whereas Art. 118 cl. 1 establishes a general duty to 2 cooperate, Art. 118 cl. 2 and 3 concretize this duty for situations in which States fish for identical living resources, or for different living resources in the same area. In such cases, Art. 118 requires States to enter into negotiations with a view to taking the measures necessary for the conservation of the living resources concerned. The obligation to cooperate may be met through bilateral arrangements. However, where more than two States are engaged in the exploitation of identical living resources or different living resources in the same area, Art. 118 requires States to cooperate to establish subregional or regional fisheries organisations charged with the conservation and management of the relevant high seas living resources. Art. 118 thus mandates the ‘institutional’ framework through which States are to cooperate to ensure the conservation and management of high seas living resources.

II. Historical Background Inter-state cooperative efforts to control exploitation of the living resources of the high 3 seas have their origins in the 1882 North Sea Overfishing Convention, 3 the first treaty to establish a system of measures designed to stop overfishing. However, most early efforts at international cooperation were, like the International Council for the Exploration of the Sea (ICES) established in 1902,4 focused predominantly on cooperation for research rather than for management purposes. The lineage of a legal duty to cooperate in conserving and managing the living resources of 4 the high seas can be traced at least as far back as the 1893 Bering Fur Seals Arbitration. 5 In that case, the British argued, and the Tribunal accepted, that conservation measures relating to high seas resources could be taken only on the basis of agreement between States. The regulations for the protection and preservation of fur seals in areas beyond national 1 ICJ, Fisheries Jurisdiction Case (United Kingdom of Great Britain and Ireland v. Iceland), Merits, Judgment of 25 July, ICJ Reports (1974), 3, 31, para. 72; ICJ, Fisheries Jurisdiction Case (Federal Republic of Germany v. Iceland), Merits, Judgment of 25 July 1974, ICJ Reports (1974), 175, 200, para. 64. 2 Emphasis added. 3 Treaty for the Regulation of the Police of the North Sea Fisheries, 1887, S. Ex. Doc. 106, 50 Congress, 2 Sess. 97; British and Foreign State Papers, LXX111, 39. 4 Established by Exchange of Letters between Denmark, Finland, Germany, Netherlands, Norway, Sweden, Russia and the United Kingdom. In 1964 the Convention for the International Council for the Exploration of the Sea was adopted giving the organisation full legal status. See http://www.ices.dk/explore-us/who-we-are/Pages/ Our-history.aspx for the text of the Convention. See, generally, A. E. J. Went, Seventy Years Agrowing: A History of the International Council for the Exploration of the Sea 1902–1972 (1972). 5 Award between the United States and the United Kingdom, Relating to the Rights of Jurisdiction of United States in the Bering’s Sea and the Preservation of Fur Seals (United States v. United Kingdom), Decision of 15 August 1893, RIAA XXVIII, 263.

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jurisdiction that were adopted by the arbitrators in that case were subsequently adopted by the parties and further supplemented in the Fur Seals treaties of 1911, 1942 and 1957. 6 5 The need for cooperation in the regulation of high seas fishing was brought to the attention of governments when, in 1927, the Committee of Experts for the Progressive Development of International Law of the League of Nations included in the topics it considered ‘ripe’ for codification, the topics of ‘Exploitation of the Products of the Sea’ and ‘Territorial Waters’. 7 With respect to the ‘products of the sea’ the issue the Committee particularly wanted examined was ‘whether it is possible to establish by way of international agreements rules regarding’ their exploitation. Responses to the Committee’s questionnaire provided by States indicated a consensus in favour of some form of regulation, although differences of opinion existed as to the most appropriate method. Japan suggested bilateral or multilateral arrangements,8 the UK favoured bilateral arrangements,9 while Germany, Norway and the Netherlands suggested the problem should be referred to and studied by the Economic Committee of the League of Nations in conjunction with the International Council for the Exploration of the Sea.10 At the time, the particular concern of the Committee was with whales, the conservation status of which was already noted as seriously threatened.11 In the end, the matter was indeed sent to the League’s Economic Committee and ICES, eventually resulting in the adoption of the 1931 Convention for the Regulation of Whaling.12 The 1930 Hague Codification Conference focused, instead, on the issue of the territorial sea,13 in respect of which no agreement was reached due to conflicting claims relating to its breadth which, in large part, were related to fisheries claims.14 Nevertheless, in view of ‘the importance of the fishing industry to certain countries’ and in recognition that ‘the protection of various products of the sea must be considered, not only in relation to the territorial sea, but also the waters beyond it’, a recommendation affirming the importance of ‘measures of protection and collaboration which may be recognized as necessary for the safeguarding of riches constituting the common patrimony’ was adopted by the Conference.15 6 While no specific institutional mechanisms existed to ensure effective fulfilment of the obligation to cooperate in conservation and management, particularly in the years after 1945 a plethora of bilateral treaties and arrangements and a number of regional fisheries organisations were established as fora for the management of high seas fisheries. These included: the International Pacific Halibut Commission;16 the International Pacific Salmon Commission;17 the Japan-Soviet Fisheries Commission;18 the Japan-Republic of Korea Joint Fisheries Commission;19 the International Commission for the Northwest Atlantic Fisheries; 20 the International 6

Philippe Sands/Jacqueline Peel, Principles of International Environmental Law (3rd edn. 2012), 400. Report of the Committee of Experts for the Progressive Development of International Law, LN Doc. C.196.M.70.1927.V. 8 Ibid., 172. 9 Ibid., 146. 10 Ibid., 178–179. 11 Ibid., 123–124. 12 Convention for the Regulation of Whaling, 24 September 1931, LNTS 155, 349. 13 Report of the Second Committee (Territorial Waters), LN Doc C.230.M.117.1930.V.I, reproduced in: Myron H. Nordquist/Satya Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995), 461 (Annex I). 14 Leonard L. Leonard, International Regulation of Fisheries (1944), 96–98. 15 Nordquist/Nandan/Rosenne (note 13), 466. 16 Convention between Canada and the United States of America for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea, 2 March 1953, UNTS 222, 177. 17 Convention for the Protection, Preservation and Extension of the Sockeye Salmon Fishery of the Fraser River System, 26 May 1930, LNTS 184, 306. 18 USSR-Japan 1956 Convention Concerning the High Seas Fisheries of the Northwest Pacific Ocean, 14 May 1956, AJIL 53 (1959), 763. 19 1965 Agreement Concerning Fisheries between Japan and the Republic of Korea, 22 June 1965, 1965 ILM, 1128. 20 International Convention for the Northwest Atlantic Fisheries and the International Commission for the Northwest Atlantic Fisheries, 8 February 1949, UNTS 157, 158. 7

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North Pacific Fisheries Commission;21 the North-East Atlantic Fisheries Commission;22 the International Commission for the Southeast Atlantic Fisheries;23 the Permanent Commission of the Conference on the Use and Conservation of the Marine Resources of the South Pacific; 24 the Inter-American Tropical Tuna Commission;25 the International Commission on the Conservation of Atlantic Tunas;26 and the various bodies established under Articles VI and XIV of the FAO Constitution, including the General Fisheries Council for the Mediterranean, 27 the Indo-Pacific Fisheries Council,28 the Regional Fisheries Advisory Commission for the South West Atlantic,29 the Fishery Committee for the Eastern Central Atlantic,30 and the Indian Ocean Fishery Commission.31 As their names imply, some of these treaties and the organisations they established focused on particular geographic regions covering all (or a number of) stocks within a region, while others focused on particular species throughout their migratory range. Some of the international fisheries commissions established possessed managerial competence while others, particularly those established by the FAO, were charged with purely advisory functions.32 These early fisheries organisations and arrangements suffered from a number of short- 7 comings including: the inability to agree on essential conservation measures; the ability of member States to opt out of any measures adopted; poor enforcement of such measures; and the inability to control the activities of non-members and their vessels. 33 It was these failures that ultimately contributed to the impetus for the extension of coastal State jurisdiction that was eventually embodied in the regime of the EEZ. With the adoption of the EEZ regime a number of Commissions, such as the International Pacific Halibut Commission and the Pacific Salmon Commission, were subsumed under coastal State jurisdiction. For others, their area or scope of application was either negated or severely reduced. During its work on the codification of the law of the sea, the International Law Commission 8 (ILC) examined, and in its draft articles of 1953 adopted, the idea of an international authority, to be established within the UN framework, having legislative powers to prescribe binding regulatory measures in respect of high seas fisheries for the purpose of protecting those fisheries resources against waste or extermination. 34 If States were unable to agree on necessary conservation and management measures the international authority would do it for them. Ultimately, however, this proposal was not adopted in the final Draft Articles Concerning the 21 International Convention between the United States of America, Canada and Japan for the High Seas Fisheries of the North Pacific Ocean, 9 May 1952, UNTS 205, 65. 22 North-East Atlantic Fisheries Convention, 24 January 1959, UNTS 486, 157. 23 International Convention on the Conservation of Atlantic Tunas, 14 May 1966, UNTS 673, 63. 24 Agreement on the Establishment of the Permanent Commission of the South Pacific, 18 August 1952, reproduced in: F.B. Zenny, Establishment, Structure, Function and Activities of International Fisheries bodies – Permanent Commission of the Conference on the Use and Conservation of the Marine Resources of the South Pacific, FAO Fisheries Technical Paper No. 77 (1968). 25 Convention between the United States of America and the Republic of Costa Rica for the Establishment of an Inter-American Tropical Tuna Commission, 31 May 1949, UNTS 80, 3. 26 International Convention for the Conservation of Atlantic Tunas, 14 May 1966, UNTS 673, 63. 27 Agreement for the Establishment of the General Fisheries Council for the Mediterranean, 24 September 1949, UNTS 126, 238. 28 Agreement for the Establishment of the Indo-Pacific Fisheries Council, 9 November 1948, UNTS 120, 60. 29 FAO Resolution (1962) on the Establishment of the Regional Fisheries Advisory Commission for the South West Atlantic, reproduced in: Jean E. Carroz, Establishment, structure, functions and activities of international fisheries bodies – regional Fisheries Advisory Commission for the South West Atlantic (CARPAS), FAO Fisheries technical Paper No. 60 (1966) 21–24. 30 FAO, Establishment of the Fishery Committee for the Eastern Central Atlantic, FAO Res. 1/48 (1967), available at: ftp://ftp.fao.org/FI/DOCUMENT/cecaf/CECAFstatutes1967.pdf. 31 FAO Resolution 2/46 (1967) on the Establishment of the Indian Ocean Fishery Commission, reproduced in: Report of the First Session of the Indian Ocean Fisher Commission, FAO Fisheries Reports No. 60 (1968), 12–13. 32 For a description of the various regimes, see Albert W. Koers, International Regulation of Marine Fisheries (1973). 33 Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn.1999), 287. 34 ILC, Report of the International Law Commission: Regime of the High Seas, UN Doc. A/2456 (1953), GAOR 8th Sess. Suppl. 9, 12 (Art. 3).

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Law of the Sea. Likewise, a proposal for the establishment of a UN specialised agency responsible for making technical and scientific studies on the protection of marine living resources and settling disputes between States was considered but rejected in favour of compulsory ad hoc arbitral commissions which, the ILC believed, had ‘more chance of being carried into practice in the near future than that of a central judicial authority’. 35 9 The ILC’s 1956 Draft Articles Concerning the Law of the Sea therefore provide that where nationals of two or more States fish for the same stock or stocks on the high seas, they shall enter into negotiations with a view to prescribing necessary conservation measures by agreement.36 Other States subsequently joining the fishery shall be bound by those measures,37 and any coastal State having a special interest in the stock or stocks is to take part in these agreements on an equal footing regardless of whether its nationals fish for the stocks. 38 If negotiations do not lead to agreement in a reasonable time, coastal States are entitled to adopt unilateral measures aimed at maintaining the productivity of the living resources in the high seas areas adjacent to their territory, which will be binding on other States, where scientific evidence reveals an urgent need for these measures, the measures are based on appropriate scientific findings, and they do not discriminate against foreign fishermen. 39 In each case States not in agreement are free to resort to arbitration as provided for in the Draft Articles, but any measures already adopted remain obligatory pending the arbitral decision, unless the tribunal decides otherwise.40 10 These provisions were adopted, with only minor amendments, into Arts. 4–11 of the 1958 Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas (High Seas Fishing Convention).41 This Convention, however, never achieved wide acceptance, in large part due to objections to its onerous cooperation requirements and the powers given to coastal States. At the time of its entry into force in 1966 only twenty-six States were parties. In total, the Convention only ever attracted thirty-nine States parties. 42 11 Despite its rejection from the ILC’s work, and given the lack of acceptance of the High Seas Fishing Convention, the concept of a global fisheries organisation charged with the international management of high seas fisheries continued to gain ground, aided by the development of the concept of the common heritage of mankind in respect of the deep sea bed area.43 According to MCDOUGAL: ‘Under conditions of complete freedom the technologically advanced countries of the world are going to rapidly deplete the resources of the sea. We’ve got to evolve from the principle of freedom of the seas to a principle of common interest for mankind in a regulated high sea, carried out by some general international organisation.’44

In 1973, KOERS suggested the establishment of a World Marine Fisheries Organisation charged with ‘bringing about the fullest desirable use of the living resources of the high seas’.45 The organisation would ensure conservation and management of high seas fisheries 35 ILC, Report of the International Law Commission: Commentaries to the Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 12–45. 36 Ibid., 34–35 (Commentary to Art. 52). 37 Ibid., 35 (Commentary to Art. 53). 38 Ibid. (Commentary to Art. 54). 39 Ibid., 35–36 (Commentary to Art. 55). 40 Ibid., 36–38 (Commentary to Arts. 56–59). 41 Convention on Fishing and Conservation of the Living Resources of the High Seas, 29 April 1958, UNTS 559, 286. Some amendments included the designation of ‘12 months’ instead of a ‘reasonable period’ and the name of the commission as a ‘special commission’ not ‘arbitral commission’. 42 See, Status of Treaties deposited with the Secretary-General, https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXI-3&chapter=21&lang=en. 43 For further information on this concept, see Vo ¨ neky/Ho¨felmeier on Art. 136 MN 14 et seq. 44 Myers S. McDougal, International Law and the Law of the Sea: Discussion of McDougal, in: Lewis M. Alexander (ed.) The Law of the Sea: Offshore Boundaries and Zones (1967), 3, 24. 45 See Article IV of the proposed Draft Convention for the Establishment of a World Marine Fisheries Organisation, in: Albert W. Koers, International Regulation of Marine Fisheries: A Study of Regional Fisheries Organisations (1973), 332.

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resources through the adoption of rules, principles and recommendations relating to conservation, management and allocation, as well as implementation and enforcement. During the negotiations on the UNCLOS, numerous proposals were put forward calling for 12 high seas fisheries to be subject to international management and enforcement. In the early discussions in the Sea-bed Committee, a proposal from China envisaged the establishment of a ‘unified international fishery organisation’ pending the establishment of which States of a ‘given sea area’ would establish regional committees to ‘work out appropriate rules and regulations for the regulation of fishing and conservation of marine living resources in the international sea era’. The unified organisation, once established, would work through these regional committees.46 Other proposals envisaged the regulation of high seas fisheries on a regional basis by the States in the region, based on an agreement or treaty adopted by them,47 with Japan proposing that such arrangements were to be concluded between States whose nationals were engaged in fishing for the same stock at the request of any one of those States. 48 In 1974, the Main Trends Working paper included a provision originally proposed by the United States that required States to cooperate in the ‘exploitation and conservation’ of living resources in areas beyond the EEZ and for those exploiting such resource to ‘enter into fisheries management agreements, and establish appropriate multilateral fisheries organisations, for the purpose of maintaining these resources’. In situations where such a body could not be established, States were to ask for the assistance of the Food and Agriculture Organisation (FAO) in establishing such a body.49 However, while the concept of cooperative international management was accepted, the 13 idea of a global fisheries organization or oversight by a global body was not. Moreover, cognizant of the fate of the 1958 High Seas Fishing Convention, Art. 105 of the Informal Single Negotiating Text (ISNT), adopted in 1975, referred only to an obligation to cooperate, a requirement to ‘negotiate with a view to adopting the means necessary for the conservation of the living resources concerned’, and a requirement that States, ‘as appropriate cooperate to establish subregional or regional fisheries organisations’.50 No provision was made for action by any States or for any reason in default of cooperation, negotiation or establishment of regional or subregional arrangements. Minor textual amendments were subsequently made on the recommendation of the Drafting Committee to bring the wording in line with changes to Art. 116 and 117, including replacing ‘adopting the means’ with ‘taking the measures’. 51 However, no further substantive changes were made to what is now Art. 118.

III. Elements 1. ‘States shall cooperate with each other in the conservation and management of living resources in the areas of the high seas’ The duty to cooperate is a natural corollary of the duty to conserve a shared natural 14 resource. The duty arises from the duty to have due regard to the interests of other States. It 46 Sea-Bed Committee, China: General Principles for the International Sea Area, Working Paper, UN Doc. A/ AC.138.SC.II/L.45 (1973), GAOR 28th Sess. Suppl. 21 (A/9021), 101 (Principle 6, para. 2). 47 Sea-Bed Committee, Canada et al.: Draft Articles on Fisheries, UN Doc. A/AC.138/SC.II/L.38 (1973), GAOR 28th Sess. Suppl. 21 (A/9021), 82, 84 (Art. 9); Sea-Bed Committee; Ecuador, Panama and Peru: Draft Articles on Fisheries in National and International Zones in Ocean Space, UN Doc. A/AC.138/SC.II/L.54 (1973), GAOR 28th Sess. Suppl. 21 (A/9021), 107, 109 (lit. J). 48 Sea-Bed Committee, Japan: Proposals for a Re ´gime of Fisheries on the High Seas, UN Doc. A/AC.138.SC.II/ L.12 (1972), GAOR 27th Sess. Suppl. 21 (A/8721) 188, 190 (Provision 2.2, paras. 1 and 3). 49 UNCLOS III, Statement of Activities of the Conference during its First and Second Sessions, UN Doc. A/ CONF.62/L.8/REV.1 (1974), OR III, 93, 107, 132 (Annex II, Appendix I, Provision 156, Formula C, para. 1). 50 UNCLOS III, Informal Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/PART II (1975), OR IV, 152, 167 (Art. 105). 51 UNCLOS III, Draft Convention on the Law of the Sea, UN Doc. A/CONF.62/L.78 (1981), OR XV, 172, 193 (Art. 118); UNCLOS III, Report of the Chairman of the Third Committee, UN Doc. A/CONF.62/L.71 (1981), OR XV, 151.

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has its origins in the general principles of international law that have evolved governing the exploitation of transboundary resources – both living and non-living,52 and is recognized as a fundamental rule of general international law emanating from the principle of ‘goodneighbourliness’ enunciated in Art. 74 of the Charter of the United Nations. Its customary status has been accepted in State practice and in the decisions and awards of international courts and tribunals including the ICJ53 and the International Tribunal for the Law of the Sea (ITLOS).54 The obligation is thus binding on all States. 15 In the context of Art. 118, the obligation to cooperate and, in particular, the precise manner of its implementation, is addressed only to those States whose nationals exploit identical living resources or different living resources in the same area. This is in contradistinction to, but not inconsistent with, the reference to ‘all States’ in Arts. 116 and 117. While all States have the right for their nationals to fish on the high seas and all States must take conservation measures in respect of their nationals, cooperation in conservatory efforts is most relevant only to those States actively engaged in the exploitation of the resource. However, nothing in Art. 118 overrides the customary obligation on all States to cooperate and nothing in Art. 118 prohibits the involvement of non-exploiting States in cooperative efforts, although as practice in the International Whaling Commission demonstrates, the participation of non-exploiting States can have a profound influence on the nature of the measures adopted and on the quality of the ongoing cooperation. Thus, the combined effect of Art. 118 and customary international law means that ‘new entrants’ are obliged to cooperate in the same manner as existing exploiters.55 Coastal States whose exclusive economic or fisheries zones abut high seas areas are similarly obliged to cooperate with other States in respect of the conservation and management of marine living resources straddling these areas. This latter point is now confirmed by Art. 8 (4) of the 1995 UN Fish Stocks Agreement (UNFSA) which specifically requires coastal States and States fishing on the high seas to cooperate in relation to straddling and highly migratory fish stocks. 16 According to Art. 118, the objective of cooperation is the ‘conservation and management’ of the living resources of the high seas. No definition of ‘conservation’ is included in UNCLOS. However, Art. 119 provides guidance by requiring conservation measures to be directed towards achieving the ‘maximum sustainable yield’ as qualified by the relevant environmental and economic factors set out there, including the special requirements of developing States and the effects of fishing on associated and dependent species. In the years since the adoption of UNCLOS, the concept of conservation has further evolved to require the sustainable use of living resources to ensure their continuing availability to meet the needs of both present and future generations.56 This more recent characterisation of the meaning of conservation is now embodied in the UNFSA with particular reference to straddling and highly migratory fish stocks. In its preamble, the UNFSA resolves to improve cooperation between States to ensure their long-term conservation and sustainable management. Art. 5 UNFSA then requires States to adopt conservation measures to ensure the longterm sustainability and promote the optimum utilization of the resource. Indeed, the entire agreement can basically be seen as an operationalisation of the duty to cooperate in respect of straddling fish stocks and highly migratory fish stocks already established in Art. 118 and in customary international law. 17 The means by which ‘conservation’ is to be achieved is through the ‘management’ of the resource. Again no definition of the term ‘management’ is provided. However, reference to 52

Ellen Hey, The Regime for the Exploitation of Transboundary Marine Fisheries Resources (1989), 28–41. ICJ, Gabcˇ´ıkovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997, ICJ Reports (1997), 7, para. 141. 54 ITLOS, MOX Plant Case (Ireland v. United Kingdom), Provisional Measures, Order of 3 December 2001, ITLOS Reports (2001), 95, para. 83. ~a, The Changing International Law of High Seas Fisheries (1991), 70. 55 Francisco Orrego Vicun 56 Patricia Birnie/Alan Boyle/Catherine Redgwell, International Law and the Environment (3rd edn. 2009), 199–200. 53

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Art. 119 and to Art. 56 (1)(a) in which the term is also used indicates that management is intended to include concepts such as ensuring optimum utilisation of the resource, regulating harvesting, and setting limits on allowable catch. Thus, as NORDQUIST et al. note, the two concepts are linked, with conservation serving as the guiding principle and management serving as the modus operandi for the achievement of that goal.57 Importantly, although generally taken to refer to fish resources, on its face, nothing in 18 Art. 118 limits its application in this respect. The living resources of the high seas include fish as well as all other marine flora and fauna. Thus, fulfilment of Art. 118 requires States to take measures necessary for the conservation of non-fish species as well. In the case of marine mammals, the duty is re-articulated in Art. 65 which, by virtue of Art. 120, also applies to the high seas. While the Convention is silent on the issue of its applicability to marine genetic resources, the debate over which has led to calls for the adoption of a new implementing agreement for the protection of marine biodiversity in areas beyond national jurisdiction, 58 the customary nature of the obligation ensures its application (even if not its precise scope) to marine genetic resources as well. The duty to cooperate is mandatory. As Art. 118 makes clear, States shall cooperate with 19 each other for the purposes of conserving and managing high seas living marine resources. As discussed below, numerous agreements and organisations have been established, satisfying the initial application of the obligation to cooperate, although a number of factors undermine their effective functioning. Nevertheless, where agreement cannot be reached States are still obliged, by virtue of Art. 117, to take conservation measures for their own nationals. They are also obliged to seek to settle their differences peacefully, either through the UNCLOS dispute settlement mechanisms or otherwise.

2. ‘States whose nationals exploit identical living resources […] shall enter into negotiations’ Art. 118 cl. 2 is the first of two clauses that seek to operationalise the general obligation to 20 cooperate articulated in cl. 1. While the customary status of the duty to cooperate is not contested,59 its precise nature and extent is. Importantly, the obligation to cooperate does not mandate a specific outcome.60 Rather, its observance (merely) requires fulfilment of certain procedural obligations such as those relating to environmental assessment, exchange of information, notification, consultation and negotiation.61 In the context of Art. 118, cl. 2 stipulates that one particular element of the general obligation to cooperate is the obligation to enter into negotiations with a view to taking the measures necessary for the conservation of the living resources concerned. The duty to negotiate arises from the fundamental obligation on States embodied in 21 Art. 33 Charter of the United Nations to settle their disputes by peaceful means. As recognized by the ICJ in the Fisheries Jurisdiction Cases, negotiation is clearly ‘the most appropriate method’ for the resolution of disputes.62 Moreover, the obligation to negotiate is an obligation to do so in good faith. As the ICJ said in the North Sea Continental Shelf Cases:

57

Nordquist/Nandan/Rosenne (note 13), 301. Outcome of 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 and Co-Chairs’ summary of discussions, 20–23 January 2015, Advanced and unedited text available at: http://www.un.org/Depts/los/biodiversityworkinggroup/biodiversityworkinggroup.htm. 59 ICJ, Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010, ICJ Reports (2010), 14, para. 164. 60 Lac Lanoux Arbitration (France v. Spain) Award of 16 November 1957, ILR 24, 101. 61 Sands/Peel (note 6), 204. 62 Fisheries Jurisdiction Case (note 1), para. 73. 58

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‘[The parties] are under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating and modification of it.’63

This is reinforced by Art. 300 which requires States parties to ‘fulfill in good faith the obligations assumed under this Convention’. 22 The obligation to negotiate applies to all States whose nationals exploit identical living resources or different living resources in the same area. The obligation is not confined to coastal States or to distant water fishing States or to those States with historic fishing interests. Rather, it applies equally to all States involved, including past exploiters and new entrants into any fishery as well as, by virtue of Arts. 63–65, coastal States through whose waters the resources migrate. As stated by the ICJ in the Fisheries Jurisdiction Cases, the objective of negotiation: ‘should be the delimitation of the rights and interests of the parties, the preferential rights of the coastal state on the one hand and the rights of the applicant on the other, to balance and regulate equitably questions such as those of catch-limitation, share allocations and ‘related restrictions concerning areas closed to fishing, number and type of vessels allowed and forms of control of the agreed provisions’.64

To that end negotiations should be conducted: ‘on the basis that each must in good faith pay reasonable regard to the legal rights of the other […], thus bringing about an equitable apportionment of the fishing resources based on the facts of the particular situation, and having regard to the interests of other States which have established fishing rights in the area. It is not a matter of finding simply an equitable solution, but an equitable solution derived from the applicable law.’65

The objective of the negotiations required by Art. 118 cl. 1 is to establish measures ‘necessary’ for conservation and management of the living resources concerned. No indication of what might constitute ‘necessary measures’ is provided. In the Fisheries Jurisdiction Case (Spain v. Canada), the ICJ made clear that no limits exist on the types of measures that might be adopted so long as they are aimed at ensuring conservation and management. 66 Necessary measures will therefore include those relating to, inter alia, acquisition of fishery related data, use of fishing practices and technologies, conservation of associated and dependent (non-target species), area or time closures, quotas, restriction of fishing capacity, and monitoring, control and enforcement. 24 Despite the apparently mandatory language (States shall negotiate), the obligation to negotiate is an obligation of conduct not result; a mere pactum in negotiando.67 UNCLOS lacks any default mechanism such as that suggested in the 1958 High Seas Fishing Convention whereby a coastal State could unilaterally adopt measures where cooperative efforts had failed. 68 Thus, in the absence of any articulation of what happens if negotiation fails, the effect of this ‘obligation’ may be open to debate. In the Southern Bluefin Tuna Case, Australia and New Zealand claimed, inter alia, that Japan had failed to cooperate with them to adopt necessary conservation measures. The Annex VII arbitral tribunal established to hear the cases declined jurisdiction so the issue was never decided.69 However, the cases highlight the difficulties in achieving the negotiation and successful adoption of conservation and management measures where States have differing views as to what conservation and management require. 23

63 ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Netherlands/Denmark), Judgment of 20 February 1969, ICJ Reports (1969), 3, 47 (para. 85). 64 Fisheries Jurisdiction Case (note 1), para 73. 65 Ibid., para. 78. 66 ICJ, Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment of 4 December 1998, ICJ Reports (1998), 432, paras. 66, 70. 67 For discussion of the concept, see: John. F. O’Connor, Good Faith in International Law (1991). 68 Art. 55 High Seas Fishing Convention. 69 PCA, Southern Bluefin Tuna Case (Australia and New Zealand v. Japan), Jurisdiction and Admissibility, Award of 4 August 2000, RIAA XXIII, 1, 42. See also ITLOS, Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional Measures, Order of 27 August 1999, ITLOS Reports (1999), 280.

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3. ‘They shall, as appropriate, cooperate to establish subregional or regional fisheries organizations’ As formulated in Arts. 63–64 and in Art. 118 cl. 3, the duty to cooperate in the conservation and management of high seas living resources may be fulfilled directly through the establishment of bilateral or multilateral agreements relating to a specific species or to various species or stocks in a particular geographic area. Bodies that regulate non-fishery resources include the International Whaling Commission70 and the Agreement on the Conservation of Albatrosses and Petrels.71 Where appropriate, however, the recognised modus operandi for cooperation is through the establishment of subregional or regional fisheries organisations. The criterion of ‘appropriateness’ will be determined by the nature and identity of the species, stocks and States concerned. However, as Art. 118 makes clear, the purpose of these agreements and organisations is to act as fora in which States negotiate, agree on and take the measures necessary for conservation and management of either particular species throughout their migratory range or of all species within a particular geographic area. Given the centrality of the conservation and management function, organisations and arrangements having this function are now generally collectively referred to as regional fisheries management organisations (RFMOs). The obligation to cooperate to establish RFMOs is now further recognised in the UNFSA, Art. 8 of which basically ‘institutionalises’ the duty to cooperate in respect of straddling and highly migratory fish stocks by requiring its exercise through regional or subregional fisheries organisations or arrangements. Although there was some debate over the appropriateness of the structure of many then existing RFMOs to fulfil the envisioned mandate, and cautionary warnings were expressed as to the dangers of the proliferation of such organisations, the general consensus was in favour of their appropriateness as the mechanisms by which international cooperation is to be achieved.72 Art. 8 UNFSA does away with the distinction in UNCLOS between the obligation to ‘seek to agree’ in Art. 63 (2) and the obligation to ‘cooperate directly’ in Art. 64,73 and requires coastal and fishing States to cooperate directly or through RFMOs or arrangements to ensure effective conservation and management in respect of both straddling and highly migratory fish stocks. Art. 8 then goes on to elucidate what this cooperation entails. States are obliged to enter into consultation in good faith and without delay to reach agreement on arrangements with respect to straddling fish stocks and highly migratory fish stocks, particularly where evidence exists that these stocks may be under threat of over-exploitation or where a new fishery is being developed. Where RFMO’s exist and have competence to establish conservation and management measures in respect of straddling and/or highly migratory fish stocks, coastal and fishing States are obliged either to become members of the organisation or to agree to apply its conservation and management measures. All States having a ‘real interest’ in the fisheries concerned may join a RFMO and where none exists with responsibility for a particular straddling of highly migratory stock, States are obliged to cooperate to establish one, or to establish ‘other appropriate arrangements’ to ensure conservation and management of the stock concerned and to participate in the work of these organisations or arrangements. The UNFSA does not do away with the obligation to cooperate directly because it recognises that there may be some cases where a formal organisational structure is unnecessary and the objectives of conservation and management can be met through bilateral 70

For discussion see, Harrison/Morgera on Art. 65 MN 13–14 and Rayfuse on Art. 120 MN 13. Agreement on the Conservation of Albatrosses and Petrels, 19 June 2001, UNTS 2258, 257. 72 Rosemary Rayfuse, Regional Fisheries Management Organisations, in: Donald R. Rothwell/Karen N. Scott/ Alex G. Oude Elferink/Tim Stephens (eds.), The Oxford Handbook on the Law of the Sea (2015), 439. 73 The difference is no longer considered to be of significance. Andre Tahindro, Conservation and Management of Transboundary Fish Stocks: Comments in Light of the Adoption of the 1995 Agreement for the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, ODIL 28 (1997) 1, 19. 71

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agreement. However, where more than two States are interested in a fishery it would seem that the establishment of some sort of RFMO or multilateral arrangement will be necessary in order to fulfil the obligation to cooperate. 29 Bilateral and multilateral arrangements relating to high seas fisheries include the Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean (NPAFC), 74 the Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea (CCBSP),75 the South Indian Ocean Fisheries Agreement (SIOFA),76 the Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific,77 and the Australia-New Zealand Arrangement for the Conservation and Management of Orange Roughy on the South Tasman Rise.78 Although often listed as an RFMO, by virtue of Art. 66 UNCLOS, the NPAFC has no management mandate with respect to anadromous fish but acts, instead, to enforce the prohibition on their high seas exploitation provided for in Art. 66 both directly and indirectly through operational support for enforcing the moratorium on large-scale high seas driftnet fishing adopted by the UN General Assembly in 1992.79 In this respect, it is the only such arrangement to establish a freestanding international commission. The institutional machinery for the other arrangements is provided by intergovernmental meetings of the parties. 30 Early regional fisheries organisations focused on cooperation for research purposes and a number of agreements exist establishing mechanisms having scientific or advisory functions only, including the International Council for the Exploration of the Sea (ICES)80 and the North Pacific Marine Science Organisation (PICES).81 The first organisations with a management function date from the early to mid-twentieth century.82 However, with the extension of coastal State jurisdiction in UNCLOS, the mandates of many of these pre-existing RFMOs had to be revised and, in some cases, new organisations established. The impetus towards establishment of new organisations to manage previously unmanaged stocks or areas has been particularly marked in the post-UNFSA era although some areas, species and stocks remain unregulated. 31 There are now five RFMOs dealing with highly migratory species. These are the International Commission for the Conservation of Atlantic Tunas (ICCAT),83 the Indian Ocean Tuna Commission (IOTC),84 the Western and Central Pacific Fisheries Commission (WCPFC),85 the Inter-American Tropical Tuna Commission (IATTC),86 and the Commission for the Conservation of Southern Bluefin Tuna (CCSBT).87 Given their commonality of 74 Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean, 11 February 1992, LOSB 22 (1993), 21. 75 Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea, 16 June 1994, ILM 34 (1994), 67. 76 South Indian Ocean Fisheries Agreement, 7 July 2006, available at: http://www.fao.org/fishery/rfb/siofa/en. 77 Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific, 23 November 1989, UNTS 1899, 3. 78 Arrangement between Australia and New Zealand for the Conservation and Management of Orange Roughy on the South Tasman Rise, 1 March 2000, available at: http://www.fao.org/docrep/006/y4652e/y4652e0g.htm. 79 GA Res. 46/215 of 20 December 1991. For discussion, see Rosemary Rayfuse, Non-Flag State Enforcement in High Seas Fisheries (2004), 79–82, 117–136. 80 See supra, note 4. 81 Convention for a North Pacific Marine Science Organization (PICES), 12 December 1990, https://www.pices.int/about/convention.aspx. 82 See supra, MN 6. 83 International Convention for the Conservation of Atlantic Tunas, 14 May 1966, UNTS 673, 63. 84 Agreement for the Establishment of the Indian Ocean Tuna Commission, 25 November 1993, UNTS 1927, 329. 85 Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, 5 September 2000, UNTS 2275, 43. 86 Convention between the United States of America and the Republic of Costa Rica for the Establishment of an Inter-American Tropical Tuna Commission, 31 May 1949, UNTS 80, 3. The Convention has been amended and updated by the Convention for the Strengthening of the Inter-American Tropical Tuna Commission Established by the 1949 Convention between the United States of America and the Republic of Costa Rica, 14 November 2003, available at: http://www.iattc.org/IATTCdocumentationENG.htm. 87 Convention of the Conservation of Southern Bluefin Tuna, 10 May 1993, UNTS 1819, 360.

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object and purpose, since 2007 these RFMOs have worked together through the ‘Kobe Process’ to ensure a harmonised approach to scientific research and the acquisition of data, and the adoption of management, control and enforcement measures. A number of RFMOs manage stocks by geographical area including, the North-East 32 Atlantic Fisheries Commission (NEAFC),88 the Northwest Atlantic Fisheries Organization (NAFO)89, the North Atlantic Salmon Conservation Organisation (NASCO),90 the SouthEast Atlantic Fisheries Organisation (SEAFO),91 the Convention on Conservation of Antarctic Marine Living Resources (CCAMLR),92 the General Fisheries Commission for the Mediterranean (GFCM),93 the South Pacific Regional Fisheries Management Organisation (SPRFMO),94 and the North Pacific Fisheries Commission (NPFC).95 The efficacy of RFMOs in fulfilling their conservatory mandates has come under consider- 33 able scrutiny in recent decades, particularly since the adoption of the UNFSA. Problems identified have included: the problem of ‘free riders’ or States who refuse to join or apply the conservation measures adopted by a RFMO; the status of non-State ‘fishing entities’; the use of opt-out or objection procedures by member States; the use of flags of convenience or flagging/reflagging of vessels to avoid application of RFMO measures; lack of compliance; and inadequate enforcement.96 In 2006, in response to calls from, inter alia, the FAO Committee on Fisheries, the St John’s Conference on the Governance of High Seas Fisheries and the Organisation for Economic Co-operation and Development (OECD) High Seas Task Force, the UN General Assembly called on RFMOs to strengthen and modernize their mandates and measures in line with modern approaches to fisheries management including the ecosystem and precautionary approaches embodied in the UNFSA and other international instruments such as the Convention on Biological Diversity (CBD) and UN General Assembly Resolution 61/105 (2006)97 on destructive fishing practices and the protection of vulnerable marine ecosystems. Since then a number of RFMOs have undergone independent performance reviews which have led to significant changes including modernising their constitutive treaties, improving their conservation and management measures, particularly with a view to combatting IUU fishing, and incorporating modern management approaches into their work.98 Despite these improvements, the FAO reports that the percentage of fish stocks either over 34 or fully exploited and in need of effective management either to rebuild stocks or prevent further decline has continued to increase – from 75 % on 2004 to 87 % in 2012. 99 Overexploitation is particularly ‘critical for some highly migratory, straddling and other fishery resources that are exploited solely or partially in the high seas’.100 Destruction of vulnerable marine ecosystems has also become a major concern and to date RFMOs have failed to 88 Convention on Future Multilateral Cooperation in North-East Atlantic Fisheries, 18 November 1980, UNTS 1285, 129. 89 Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries, 24 October 1978, UNTS 1135, 369. 90 Convention for the Conservation of Salmon in the North Atlantic Ocean, 2 March 1982, UNTS 1338, 33. 91 Convention on the Conservation and Management of the Fishery Resources in the South East Atlantic Ocean, 20 April 2001, UNTS 2221, 189. 92 Convention on the Conservation of Antarctic Marine Living Resources, 20 May 1908, UNTS 1329, 47. 93 Agreement for the Establishment of a General Fisheries Council for the Mediterranean, 24 September 1949, UNTS 126, 239, as amended on 6 November 1997, UNTS 2275, 157. 94 Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean, 14 November 2011, available at: https://treaties.un.org/pages/showDetails.aspx?objid=0800000280363a44. 95 Convention on the Conservation and Management of Fisheries Resources in the North Pacific Ocean, 24 February 2012, into force 19 July 2015, available at: nwpbfo.nomaki.jp/About_Convention.html. 96 OECD High Seas Task Force, Closing the Net: Stopping Illegal Fishing on the High Seas (2006); see also Rayfuse (note 72). 97 GA Res. 61/105 of 8 December 2007 and GA Res. 64/72 of 4 December 2009. 98 Rayfuse (note 72). 99 FAO, The State of World Fisheries and Aquaculture: 2014 (2014). 100 Ibid., 41.

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achieve the World Summit on Sustainable Development objectives of maintaining or restoring depleted stocks by 2015 and of establishing a representative network of high seas marine protected areas.101 35 The credibility and efficacy of international cooperative efforts to conserve the living resources of the high seas remains an open question. Art. 118 provides a framework for cooperative action but provides no guidance on the actions that might be taken against States who fail to cooperate or against RFMOs which fail to live up to their mandate. As the Fisheries Jurisdiction Case (Spain v. Canada) and EC v. Chile Swordfish cases102 indicate, unilateral attempts by States to act in default of RFMO action are highly contentious. However, nothing in Art. 118 or elsewhere in the UNCLOS absolves States of their individual and collective responsibility for breaches of their obligations to cooperate and to conserve the living resources of the high seas. The issue is (merely) one of standing (or perhaps more accurately one of political courage) to bring a claim in respect of such breaches.

Article 119 Conservation of the living resources of the high seas 1. In determining the allowable catch and establishing other conservation measures for the living resources in the high seas, States shall: (a) take measures which are designed, on the best scientific evidence available to the States concerned, to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors, including the special requirements of developing States, and taking into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether subregional, regional or global; (b) take into consideration the effects on species associated with or dependent upon harvested species with a view to maintaining or restoring populations of such associated or dependent species above levels at which their reproduction may become seriously threatened. 2. Available scientific information, catch and fishing effort statistics, and other data relevant to the conservation of fish stocks shall be contributed and exchanged on a regular basis through competent international organizations, whether subregional, regional or global, where appropriate and with participation by all States concerned. 3. States concerned shall ensure that conservation measures and their implementation do not discriminate in form or in fact against the fishermen of any State. Bibliography: F. V. Garcı´a Amador, The Exploitation and Conservation of the Resources of the Sea (1959); Patricia Birnie/Alan Boyle/Catherine Redgwell, International Law and the Environment (3rd edn. 2009); Simone Borg, Conservation on the High Seas: Harmonizing International Regimes for the Sustainable Use of Living Resources (2012); William T. Burke, The New International Law of Fisheries: UNCLOS 1982 and Beyond (1994); Robin R. Churchill, The LOSC Regime for the Protection of the Marine Environments – Fit for the 21st Century?, in: Rosemary Rayfuse (ed.), Research Handbook on International Marine Environmental Law (2015) 3-30; Malcolm D. Evans, The Law of the Sea, in: Malcolm Evans (ed.) International Law (4th edn. 2014), 651–686; David Freestone, Caution or Precaution: ‘A Rose By Any Other Name…?’, YIntEnvL 10 (1999), 25–32; David Freestone, Implementing Precaution Cautiously: The Precautionary Approach in the Straddling and Highly Migratory Fish Stocks Agreement, in: Ellen Hey (ed.), Developments in International Fisheries Law (1999), 287– 325; David Freestone, International Fisheries Law Since Rio: The Continued Rise of the Precautionary Principle, in: Alan Boyle/David Freestone (eds.), International Law and Sustainable Development (1999), 135–164; Serge Garcia, The Precautionary Approach to Fisheries with Reference to Straddling Fish Stocks and Highly Migratory 101 World Summit on Sustainable Development, Johannesburg Plan of Implementation, Report of the World Conference on Sustainable Development, UN Doc A/CONF.199/20, Annex, paras. 31 (a) and (c). 102 Marcos A. Orellana, The Swordfish Dispute between the EU and Chile at the ITLOS and the WTO, Nordic Journal of International Law 71 (2002), 55.

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Fish Stocks, FAO Fisheries Circular No 871 (1994); Michael H. Glantz, Man, State and Fisheries: An Inquiry into some Societal Constraints that Affect Fisheries Management, ODIL 17 (1986), 191–270; Ellen Hey, The Persistence of a Concept: Maximum Sustainable Yield, in: David Freestone (ed.), The 1982 Law of the Sea Convention at 30: Successes, Challenges and New Agendas (2013), 89–97; Stuart Kaye, International Fisheries Management (2001); Herbert G. Knight, International Fisheries Management: A Background Paper: in Herbert. G. Knight (ed.) The Future of International Fisheries Management (1975), 1–49; P. A. Larkin, An Epitaph for the Concept of Maximum Sustainable Yield, Transactions of the American Fisheries Society 106 (1977) 1-10; Nele Matz-Lu¨ck/Johannes Fuchs, The Impact of OSPAR on Protected Area Management beyond National Jurisdiction: Effective Regional Cooperation or a Network of Paper Parks?, Marine Policy 49 (2014), 155–166; Myres S. McDougal/William T. Burke, The Public Order of the Oceans (1962); Erik Jaap Molenaar, Participation, Allocation and Unregulated Fishing: The Practice of Regional Fisheries Management Organisations, IJMCL 18 (2003), 457–480; Erik Jaap Molenaar, The Concept of ‘Real Interest’ and other Aspects of Cooperation through Regional Fisheries Management Mechanisms, IJMCL 15 (2000), 475–531; Gerald Moore, The Code of Conduct for Responsible Fisheries, in: Ellen Hey (ed.), Developments in International Fisheries Law (1999), 85–106; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995); Shigeru Oda, New Trends in the Regime of the Seas: A Consideration of the Problems of Conservation and Distribution of Marine Resources, ZRV 18 (1957), 261–286; Shigeru Oda, International Control of Sea Resources (1963); Alex G. Oude Elferink, The Determination of Compatible Conservation and Management Measures for Straddling and Highly Migratory Fish Stocks, MPYUNL 5 (2001), 551–607; Rosemary Rayfuse, Precaution and the Protection of the Marine Environment in Areas Beyond National Jurisdiction, in: David Freestone (ed.), The 1982 Law of the Sea Convention at 30: Successes, Challenges and New Agendas (2013), 99–108; Rosemary Rayfuse, Regional Fisheries Management Organisations, in: Donald R. Rothwell/Karen N. Scott/Alex G. Oude-Elferink/Tim Stephens (eds.), The Oxford Handbook on the Law of the Sea (2015), 439–462; Rosemary Rayfuse, The Anthropocene, Autopoiesis and the Disingenuousness of the Genuine Link: Addressing Enforcement Gaps in the Legal Regime for Areas Beyond National Jurisdiction, in: Alex G. Oude Elferink/Eric Jaap Molenaar (eds) The International Legal Regime of Areas beyond National Jurisdiction: Current and Future Developments (2010), 165–190; Rosemary Rayfuse, The Interrelationship Between the Global Instruments of International Fisheries Law, in: Ellen Hey (ed.), Developments in International Fisheries Law (1999), 107–158; Charlotte Sapin, The Law of the Sea: A Before and an After Nagoya?, in: Elisa Morgera/Matthias Buck/Else Tsioumani (eds.), The Nagoya Protocol on Access and Benefit-Sharing: Implications for International Law and Implementation Challenges (2012), 149–183; Gunnar G. Schram/Andre Tahindro, Developments in Principles for the Adoption of Fisheries Conservation and Management Measures, in: Ellen Hey (ed.), Developments in International Fisheries Law (1999), 252–286; Ivan A. Shearer, High Seas: Drift Gillnets, Highly Migratory Species and Marine Mammals, in: Tadao Kuribayashi/Edward L. Miles (eds.), The Law of the Sea in the 1990s: A Framework for Cooperation (1990) 237–258 Documents: CCAMLR, Conservation Measure 21-02 (2013); CCAMLR Resolution 31/XXVIII; COP CBD, Decision IX/20: Marine and Coastal Biodiversity, UN Doc. UNEP/CBD/COP/DEC/IX/20 (2008); COP CBD, Decision V/6: Ecosystem Approach, UN Doc. UNEP/CBD/COP/DEC/V/6 (2000); COP CBD, Decision VII/5: Marine and Coastal Biological Diversity, UN Doc. UNEP/CBD/COP/Dec/VII/5 (2004); COP CBD, Decision X/29: Marine and Coastal Biodiversity, UN Doc. UNEP/CBD/COP/DEC/X/29 (2010); CBD COP, Decision X/2: The Strategic Plan for Biodiversity 2011–2020 and the Aichi Biodiversity Targets, UN Doc. UEP/CBD/COP/DEC/X/2 (2010); FAO, Code of Conduct for Responsible Fisheries (1995); FAO, Guidelines for the Ecolabelling of Fish and Fishery Products from Marine Capture Fisheries (2005); FAO, High Seas Management: New Concepts and Techniques, FAO Doc. FI/HSF/TC/92/5 (1992); FAO, Implementation of the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, FAO Technical Guidelines for Responsible Fisheries No. 9 (2002); FAO, International Guidelines for the Management of Deep-Sea Fisheries in the High Seas (2009); FAO, International Plan of Action for Reducing Incidental Catch of Seabirds in Longline Fisheries (1998) (IPOA-Seabirds); FAO, International Plan of Action for the Conservation and Management of Sharks (1998) (IPOA-Sharks); FAO, International Plan of Action for the Management of Fishing Capacity (1999); FAO, International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (2001); FAO, Performance Reviews by Regional Fisheries Bodies: Introduction, Summaries, Synthesis and Best Practices, vol. 1, FAO Fisheries and Aquaculture Circular No 1072 (2012); FAO, Reference Points for Fisheries Management: Their Potential Application to Straddling and Highly Migratory Resources, UN Doc. A/CONF.164/ INF/9 (1994); FAO, The State of World Fisheries and Aquaculture: 2006 (2006); FAO, The State of World Fisheries and Aquaculture: 2008 (2008); FAO, The State of World Fisheries and Aquaculture: 2010 (2010); FAO, The State of World Fisheries and Aquaculture: 2012 (2012); FAO, The State of World Fisheries and Aquaculture: 2014 (2014); FAO, Voluntary Guidelines for Assessing Flag States Performance (2013), available at: ftp:// ftp.fao.org/FI/DOCUMENT/tc-fsp/2013/VolGuidelines_adopted.pdf; GA, The Future We Want, GA Res. 66/288 of 27 July 2012; GA Res. 44/225 of 22 December 1989; GA Res. 45/197 of 21 December 1990; GA Res. 46/215 of 20 December 1991; GA Res. 61/105 of 6 March 2007; GA Res. 64/72 of 4 December 2009; NAFO, Precautionary Approach Framework, NAFO/FC Doc. 04/18 2004 (2004); NAFO, Report of External Experts on Peer Review of the Method of Catch Estimation on NAFO Stocks, NAFO Report of the General Council and its Subsidiary Body (2012); UNCED, The Rio Declaration on the Environment and Development, UN Doc. A/CONF.151/5/REV.1 (1992), ILM 31, 874; UN World Summit on Sustainable Development, Report of the World Summit on Sustainable Development, UN Doc. A/CONF.199/20 (2002), 6 (Plan of Implementation of the World Summit

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on Sustainable Development); UNCED, Report of the United Nations Conference on the Environment and Development, UN Doc. A.CONF/151/26/REV.1 (Vol. I) (1992), 9 (Agenda 21) Cases: Award between the United States and the United Kingdom, Relating to the Rights of Jurisdiction of United States in the Bering’s Sea and the Preservation of Fur Seals (United States v. United Kingdom), Decision of 15 August 1893, RIAA XXVIII, 263; ICJ, Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment of 4 December 1998, ICJ Reports (1998), 432; ITLOS, Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional Measures, Order of 27 August 1999, ITLOS Reports (1999), 280; ITLOS, The M/V ‘Virginia G’ Case (Panama v. Guinea-Bissau), Judgment of 14 April 2014, available at: https:// www.itlos.org/index.php?id=171; ITLOS, The M/V ‘Saiga’ (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Merits, Judgment of 1 July 1999, ITLOS Reports (1999), 10 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘allowable catch’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘other conservation measures’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘best scientific evidence available’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. ‘Qualified’ Maximum Sustainable Yield of Harvested Species. . . . . . . . . . . . . . . . . . . 5. ‘species associated with or dependent upon’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. ‘generally recommended international minimum standards’. . . . . . . . . . . . . . . . . . . . 7. ‘scientific information, catch and effort statistics and other relevant data relevant to the conservation of fish stocks shall be contributed and exchanged […] through competent international organisations’ . . . . . . . . . . . . . . . . . . . . . . . . . . . 8. ‘conservation measures [shall] not discriminate’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 6 14 14 18 22 27 31 36 42 48

I. Purpose and Function Art. 119 provides the theoretical basis for the management of the living resources of the high seas. Described by BURKE as being ‘innovative’ from a conservation perspective, 1 Art. 119 specifies the factors to be taken into consideration by States in determining conservation measures for the high seas that they are obliged to adopt by virtue of Art. 117. In the absence of a definition of ‘conservation’ or ‘conservation measures’, Art. 119 provides valuable guidance as to the objectives and parameters of such measures; the objective being the maintenance or restoration of populations of harvested species at levels that can produce the maximum sustainable yield (MSY), and the parameters being consideration of biological, ecological, economic and environmental factors, based on best scientific evidence available. To ensure meaningful achievement of these objectives, Art. 119 (2) establishes requirements for the contribution and exchange of scientific information and data through competent international organisations, whether subregional, regional or global. 2 In the fisheries context, the function of Art. 119 is to circumscribe the freedom of fishing in accordance with that freedom’s conditional exposition as provided for in Arts. 87 and 116. 2 However, while Art. 119 is generally taken as referring primarily to fisheries, an evolutionary interpretation of the provision, particularly in light of the adoption of the Convention on Biological Diversity (CBD), suggests that Art. 119 should also apply to all marine biodiversity, including the marine genetic resources of the high seas.3 3 Several key elements of Art. 119 are found essentially verbatim in Art. 61 on the conservation of living resources within the exclusive economic zone (EEZ), namely: the determination of the allowable catch on the basis of the best scientific evidence available; the designation of 1

1

William T. Burke, The New International Law of Fisheries: UNCLOS 1982 and Beyond (1994), 53. See further Guilfoyle on Art. 87 MN 7–9 and Rayfuse on Art. 116. 3 See Patricia Birnie/Alan Boyle/Catherine Redgwell, International Law and the Environment (3rd edn. 2009), 750; Charlotte Sapin, The Law of the Sea: A Before and an After Nagoya?, in: Elisa Morgera/Matthias Buck/Else Tsioumani (eds.), The Nagoya Protocol on Access and Benefit-Sharing: Implications for International Law and Implementation Challenges (2012), 149–183. 2

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measures to maintain or restore populations of harvested species at levels that can produce the MSY, as qualified by relevant environmental and economic factors including the special requirements of developing States; the need to take into account fishing patterns; the interdependence of stocks and any generally recommended international minimum standards; and the obligation to contribute and exchange available scientific information on a regular basis through international organisations.4 However, unlike Art. 61, Art. 119 does not impose a positive obligation to establish an allowable catch. Neither does it mandate the adoption of particular measures. It merely prescribes the factors to be considered in making such a determination or in adopting conservation measures. Nor does Art. 119 require States to ensure that the living resources of the high seas are not endangered by over-exploitation. Rather, in keeping with the principle of the freedom of the high seas (� Art. 87), Art. 119 (3) provides only that neither the measures adopted nor their implementation shall discriminate in form or in fact against the fishermen of any State. The general nature of the criteria set out in Art. 119 is said to be in ‘stark contrast’ 5 to the 4 detailed criteria set out in Art. 62 which articulates the measures that coastal States may impose on foreign vessels allowed to fish in their EEZs. States thus have a wider margin of discretion in adopting measures for the conservation of the living marine resources of the high seas, the result of which may be to subject the living resources of the high seas and the EEZ to disparate standards of conservation. The 1995 UN Fish Stocks Agreement (UNFSA) now obliges the adoption of compatible measures as between the EEZ and high seas areas, 6 although which measures are to be compatible with which remains a matter of contention. 7 Art. 119 must be read in conjunction with Arts. 117 and 118 which establish the duties to 5 conserve and to cooperate in the conservation of the living resources of the high seas and the manner in which that cooperation is to be achieved. In addition, given its explicit application to all living marine resources, Art. 119 should be read in light of the general obligations concerning the protection of the marine environment (� Art. 192; Art. 194; Art. 196). As observed by the International Tribunal for the Law of the Sea (ITLOS) in the ITLOS Southern Bluefin Tuna Cases in 1991, ‘the conservation of the living resources of the sea is an element in the protection and preservation of the marine environment’.8 To that end, Art. 119 must be read in conjunction with the requirement in Art. 194 (5) that measures taken for the protection and preservation of the marine environment must include those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species.9 Finally, Art. 119 must be read in light of international legal developments related to the precautionary and ecosystem approaches.10

II. Historical Background The obligation to adopt conservation measures has its origins in the late 19th century, by 6 which time the need for international regulation of the exploitation of the living marine resources of the high seas was becoming clear.11 The first treaty to deal with conservation of

4

For further information, see generally Harrison/Morgera on Art. 61. Simone Borg, Conservation on the High Seas: Harmonizing International Regimes for the Sustainable Use of Living Resources (2012), 43–45. 6 Art. 7 UNFSA. 7 Alex G. Oude Elferink, The Determination of Compatible Conservation and Management Measures for Straddling and Highly Migratory Fish Stocks, MPYUNL 5 (2001), 551–607. 8 ITLOS, Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional Measures, Order of 27 August 1999, ITLOS Reports (1999), 280, para. 70. 9 See Czybulka on Art. 194 MN 30–36. 10 See further Harrison/Morgera on Art 61 MN 4 and generally Czybuka on Art. 192 and Art. 194. 11 Rayfuse on Art. 117 MN 5 et seq. 5

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high seas fisheries was the 1882 North Sea Overfishing Convention 12 which attempted to address the depletion of stocks through adoption of harmonised vessel registration and numbering schemes, gear restrictions and requirements for the salvage of derelict gear, and the establishment of national compliance authorities. The acceptability of these measures was further reinforced by their prescription in the 1898 Behring Sea Fur Seals Arbitration. 13 7 At the same time, the need for sound advice addressing the scientific aspects of fisheries problems was also becoming clear.14 The need for scientific advice to underpin conservation measures eventually led, in 1902, to the establishment of the International Council for the Exploration of the Sea (ICES)15 and to the establishment of scientific committees within regional fisheries organisations which relied either on national science programs of member States or on cooperation with scientific bodies like ICES. The focus of this research was, however, largely confined to ascertaining the stock status of specific exploited stocks for the purposes of establishing national quotas and not with broader environmental concerns. 16 This focus was consistent with the principle aim of early international fisheries conventions which was the conservation of living marine resources to ensure a sustainable source of food for human consumption. To that end, Art. 2 of the 1958 Convention on Fishing and Conservation of the Living Resources of the High Seas (High Seas Fishing Convention) called for the adoption of measures ‘rendering possible the optimum sustainable yield (OSY) from those resources so as to secure a maximum supply of food and other marine products’, although it remained silent on what types of measures or management systems might be adopted to achieve this objective. Originating in the 1930s, the concept of MSY became the concept vigorously pursued as the management solution of choice for achieving OSY. 17 8 Despite these developments, and the establishment of increasing numbers of regional fisheries organisations charged with conserving and managing high seas fish stocks, stocks continued to decline. By the 1960s, the concept of MSY was coming under increasingly heavy criticism for having failed as a response to the problem of over-exploitation and for being, itself, complicit in the collapse of many fisheries.18 The appropriate determination of MSY depends on accurate and complete scientific data, which was rarely available or, if available, was not relied on by States. Moreover, achieving and sustaining MSY depends on the ability to control access and fishing effort through regulatory action and the (will) power to enforce it, both of which were considered anathema to the open access regime of high sea fisheries. In addition, MSY relates to single stocks only. Fisheries scientists were increasingly noting the adverse effects of MSY management on stocks and species other than those targeted. 19 It was also recognised that, as a biological concept, MSY took no account of the competing social, economic or political interests, including the emerging claims of coastal and developing

12 International Convention for Regulating the Police of the North Sea Fisheries Outside Territorial Waters, 6 May 1882, CTS 160, 219. 13 Award between the United States and the United Kingdom, Relating to the Rights of Jurisdiction of United States in the Bering’s Sea and the Preservation of Fur Seals (United States v. United Kingdom), Decision of 15 August 1893, RIAA XXVIII, 263. 14 Birnie/Boyle/Redgwell (note 3), 708. 15 Established by Exchange of Letters between Denmark, Finland, Germany, Netherlands, Norway, Sweden, Russia and the United Kingdom. In 1964 the Convention for the International Council for the Exploration of the Sea was adopted giving the organisation full legal status. See http://www.ices.dk/explore-us/who-we-are/Pages/ Our-history.aspx for the text of the Convention. See, generally, A. E. J. Went, Seventy Years Agrowing: A History of the International Council for the Exploration of the Sea 1902–1972 (1972). 16 Birnie/Boyle/Redgwell (note 3), 713. 17 Ellen Hey, The Persistence of a Concept: Maximum Sustainable Yield, in: David Freestone (ed.), The 1982 Law of the Sea Convention at 30: Successes, Challenges and New Agendas (2013), 89, 91. 18 P. A. Larkin, An Epitaph for the Concept of Maximum Sustainable Yield, Transactions of the American Fisheries Society106 (1977), 1–10. 19 Herbert. G. Knight, International Fisheries Management: A Background Paper, in: H. Gary Knight (ed.), The Future of International Fisheries Management (1975), 1, 24.

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States that were then shaping developments in the law of the sea. Of critical importance, the concept of MSY did nothing to resolve the thorny issue of allocation.20 Even before the 1958 High Seas Fishing Convention was completed, commentators had 9 raised the issue of the interrelationship between conservation and allocation. The two were considered to be inextricably linked, with many considering that social and economic interests were also germane to the question of conservation. In 1959, GARCI´A AMADOR put it thus: ‘Strictly speaking, the need for conservation is not peculiar to our times. The need was appreciated in quite early times and some measures were even taken to meet it. At the present time, however, the problem is more complex. This is not entirely due to the greater intensity of utilisation of the resources or to the extraordinary development of fishing technique: it is also due to certain social and economic factors which […] condition the problem of conservation at the present time. In a word, the present problem is not merely a scientific and technical one; it is also social and economic and the juridical system applying to it must therefore take account of this complexity of factors.’ 21

Simultaneously, broader concerns relating to the effects of fishing activities on the conversation status of other marine species and their habitat were beginning to emerge. 22 The growing importance of the role of science and of broader ecosystem, social and 10 economic concerns in fisheries conservation and management was recognised from the outset of the UNCLOS III negotiations. A proposal from Malta in 1971 suggested the establishment of an international council to manage the living resources of the high seas ‘in such a manner as to secure the maximum sustainable yield taking due account of the need to preserve the ecological balance of ocean space’.23 Commercial fishing on the high seas was to be ‘subject to a system of non-discriminatory licensing based on scientific findings’. 24 While the negotiators rejected the idea of a centralised international council in favour of the retention of regional and sub-regional fisheries organisations (� Art. 118), the concept of MSY, now qualified by broader environmental factors, and the requirement of scientific evidence, made their way into subsequent proposals. Economic factors, too, began to emerge. An early proposal by the United States referred to 11 conservation and the ‘equitable allocation’ of fisheries and other marine living resources invoking, to this end, the principles of non-discrimination, best evidence available and the maintenance or restoration of MSY taking into account relevant environmental and economic factors.25 The conservatory objective of MSY was to be achieved through the modus operandi of regional fisheries organisations in which the States concerned could participate. The proposal also called for regular exchange of scientific information, catch and effort data and other relevant data. The Soviet Union, on the other hand, proposed that coastal States should be able to 12 establish fishery regulations for areas of the high seas as long as those measures did not discriminate ‘in form or substance’ against the fishermen of any State fishing in those areas. 26 This proposal was eventually addressed by the adoption of the EEZ regime and the extension of coastal state jurisdiction; any further concession to the special interests of coastal States in 20 Erik Jaap Molenaar, Participation, Allocation and Unregulated Fishing: The Practice of Regional Fisheries Management Organisations, IJMCL 18 (2003), 457–480. 21 F. V. Garcı´a Amador, The Exploitation and Conservation of the Resources of the Sea (1959), 139, 143. 22 Borg (note 5), 94. See also Shigeru Oda, New Trends in the Regime of the Seas-A Consideration of the Problems of Conservation and Distribution of Marine Resources, ZRV 18 (1957), 281, 285; Shigeru Oda, International Control of Sea Resources (1963), 63–65; Myres S. McDougal/William T. Burke, The Public Order of the Oceans (1962), 934. 23 Sea-Bed Committee, Malta: Draft Ocean Space Treaty, Working Paper, UN Doc. A/AC.138.53 (1971), GAOR 26th Sess. Suppl. 21 (A/8421), 105, 168 (Art. 138 (2)(a)). 24 Ibid. 25 Sea-Bed Committee, USA: Draft Articles on the Breadth of the Territorial Sea, Straits and Fisheries, UN Doc. A/AC.138.SC.II.L.4 and CORR. 1 (1971), GAOR 26th Sess. Suppl. 21 (A/8421), 241, 242 (Art. 3 (2) (a) and (d)). 26 Sea-Bed Committee, USSR: Draft Article on Fishing (Basic Provisions and Explanatory Note), UN Doc. A/ AC.138/SC.II/L.6 (1972), GAOR 27th Sess. Suppl. 21 (A/8721), 158 (para. 5).

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general was rejected. However, the question remained as to the principles by which high seas conservation was to be achieved. 13 A second proposal by the United States set out the principles it believed to be applicable to the conservation of the living marine resources of the high seas: (1) establishment of allowable catch and other conservation measures on the basis of best evidence available in order to maintain or restore MSY, taking account of relevant economic and environmental factors; (2) regular exchange of scientific information and data; and (3) non-discrimination. 27 It later added to this list the requirement that account be taken of ‘generally agreed global and regional minimum standards’ and proposed that consideration be given to the effect of conservation measures on ‘species associated with or dependent upon’ the species for which those measures were to be taken.28 These principles were subsequently incorporated into the negotiating text with the important addition of added factors to be considered, namely: (1) the special requirements of developing States; (2) fishing patterns; and (3) the interdependence of stocks.29 Subsequent drafting changes settled on the formulations of ‘best scientific evidence available’ and ‘international minimum standards, whether subregional, regional or global’ as opposed to earlier formulations.30

III. Elements 1. ‘allowable catch’ Unlike its EEZ counterpart, Art. 61, Art. 119 does not make mandatory the determination of the allowable catch of the living marine resources of the high seas. Rather, it merely alludes to determination of the allowable catch as one of many measures that States may adopt and sets out a number of criteria to be considered in its determination, the objective of which is to ‘maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield’. The need to set allowable catch limits is implicit in the notion of the MSY which presupposes restrictions on the level of catch in order to avoid overexploitation.31 However, management on the basis of allowable catch is only effective when: (1) an allowable catch has been set; (2) all States engaged in exploitation agree to the level of allowable catch; and (3) all States engaged in exploitation agree to and comply with the allocation of the allowable catch. 15 Art. 119 does not specifically indicate whether the ‘allowable catch’ refers collectively to all the living resources of the high seas, to individual species, or to individual stocks of species, or only to those species or stocks commercially exploited. However, the discretion to adopt allowable catch limits is generally taken as referring to both commercially harvested species and to those species associated with and dependant on harvested species, although the objective of doing so will be different in each case. For harvested species the objective is the maintenance of MSY while for associated or dependent species the objective is merely to maintain reproductive rates above those at which the species may become seriously threatened. With respect to harvested species, the fundamental tension between the freedom to exploit and the obligation to conserve generally evinces action either at the species or, more frequently, the stock level, and usually only when evidence of over-exploitation has become 14

27 Sea-Bed Committee, USA: Revised Draft Fisheries Article, UN Doc. A/AC.138/SC.II/L.9 (1972), GAOR 27th Sess. Suppl. 21 (A/8721), 175, 176 (Art. 4). 28 Second Committee UNCLOS III, USA: Draft Article for Inclusion in a Chapter on the High Seas – Living Resources, UN Doc. A/CONF.62/C.2/L.80 (1974), OR III, 239 (para. 2). 29 UNCLOS III, Informal Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/PART II (1975), OR IV, 152, 167 (Art. 106). 30 UNCLOS III, Revised Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/REV.1/PART II (1976), OR V, 151, 169 (Art. 107). 31 Hey (note 17), 91.

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overwhelming. As a result of continuing declines in high seas fish stocks, 32 allowable catch limits for target species are now common in high seas fisheries. In addition, allowable catch limits for non-target ‘by-catch’ species, including other fish, marine mammals, seabirds, turtles, and corals are increasingly in evidence. The interrelationship of allowable catch limits for target and non-target species is a manifestation of the growing importance of the ecosystem approach alluded to by Art. 119 (1)(b) in its reference to ‘associated or dependent species’ and now further developed in Art. 5 UNFSA and in general international environmental law. Where an allowable catch is set, by virtue of Art. 118, its determination is to be a 16 cooperative effort between the States whose nationals exploit the relevant resource. Art 119 (1)(a) and (b) set out the criteria to be considered in making this determination which, by virtue of Art. 117 and Art. 118, relate equally to measures taken by a State for its nationals either unilaterally or cooperatively.33 The recognised medium for cooperation in determining allowable catch levels is predominantly through regional and subregional fisheries management organisations and arrangements (RFMOs).34 The efficacy of this cooperation is, however, limited by the absence of any legal compulsion on States to join RFMOs and by the operation of the pacta tertiis35 rule. In particular, Art 119 does not address the perennial problem of non-member ‘free riders’ or ‘objecting’ members fishing above the determined allowable catch limits.36 Once determined, the allowable catch can be divided between exploiting States. Art. 119 is 17 silent as to the manner in which allocation is to be made although State practice reveals two approaches. One is to set a total allowable catch (TAC) for a stock or species and then divide that TAC into national quotas. Another is to allow for ‘Olympic style’ exploitation which terminates as soon as the relevant TAC is reached. However, State practice also reveals that allocation of exploitation opportunity remains one of the most contentious issues confronting RFMOs. Quota allocations are generally based on historic catch, taking into account scientific advice regarding stock status. This immediately prejudices new entrants who may be denied allocation on the basis of lack of historic fishing record, impossibility of entry into a fully allocated fishery, or failure to meet other criteria pre-determined by existing exploiters.37 This is now expressed in Art. 8 UNFSA as States requiring a ‘real interest’ in a fishery in order to participate. As to what constitutes a ‘real interest’, no definition is given, 38 but the 2013 dispute between Russia and the other members of the South Pacific RFMO is illustrative. In that case, Russia was denied a quota allocation for jack mackerel on the basis that information it had supplied to the Commission did not evidence any verifiable historic catch record. The Review Panel established to consider Russia’s objection considered that the refusal unjustifiably discriminated against Russia which, as a member of the Commission, 32 In 2006, the FAO identified 75 % of the world’s fish stocks as either fully exploited or overexploited or depleted and recovering from depletion. In 2010 the number had risen to 85 %, representing 53 % of global fish stocks as fully exploited and 32 % as either overexploited (28 %), depleted (3 %) or recovering from depletion (1 %). In 2012, the number had risen still to 87 % representing 57 % fully exploited and 30 % overexploited. The situation is said to be ‘more critical for some highly migratory, straddling and other fishery resources that are exploited solely or partially in the high seas’. In 2014 the FAP reported that only 9.9 % of the world’s fish stocks were underfished, meaning that 90.1 % are either fully fished of overfished. See FAO, The State of World Fisheries and Aquaculture: 2006 (2006); FAO, The State of World Fisheries and Aquaculture: 2008 (2008); FAO, The State of World Fisheries and Aquaculture: 2010 (2010); FAO, The State of World Fisheries and Aquaculture: 2012 (2012); and FAO, The State of World Fisheries and Aquaculture: 2014 (2014). 33 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995), 310. 34 On RFMOs, see Rayfuse on Art. 118 MN 19–27. 35 Art. 34 Vienna Convention on the Law of Treaties. 36 Rosemary Rayfuse, Regional Fisheries Management Organisations, in: Donald R. Rothwell et al. (eds.), The Oxford Handbook on the Law of the Sea (2015), 439–462. 37 Molenaar (note 20). 38 For discussion of the concept see, Erik Jaap Molenaar, The Concept of ‘Real Interest’ and other Aspects of Cooperation through Regional Fisheries Management Mechanisms, IJMCL 15 (2000), 475–531.

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was fully entitled to an allocation. Russia was therefore entitled to authorise its vessels to fish, albeit since the TAC had already been fully allocated, only once it was clear that the other members were not going to fill their quota and only until the overall TAC set by the Commission had been reached.39 The implications of this decision are that all members of an RFMO are entitled to an allocation regardless of fishing history and that the ‘real interest’ criterion is satisfied by mere membership.

2. ‘other conservation measures’ By virtue of Arts. 117 and 118, States are under an obligation to adopt conservation measures and to do so cooperatively and collectively. As with the allowable catch, Art 119 does not make mandatory the adoption of any, or any particular, conservation measures but rather leaves it to the discretion of States to choose how to implement this obligation. However, Art. 119 does make clear that the primary objective of those measures must be to maintain or restore populations of harvested species at levels that can produce the MSY as qualified by relevant factors. A secondary objective must be to ensure that populations of dependent and associated species are not seriously threatened. 19 Rather than elaborating specific conservation measures, Art. 119 (1) provides the criteria to be considered in adopting such measures. States are to consider the best scientific advice available, relevant environmental and economic factors, the requirements of developing States, catch and fishing effort statistics, generally recommended international minimum standards and the interdependence of species and stocks. Environmental factors relate both to the TAC and the possible effect of extraneous environmental stressors such as pollution or climate change on stocks. Economic factors relate to the allocation of resources and fishing capacity including issues of economic dislocation or control of excess capacity. The requirements of developing States include their needs and interests in developing and safeguarding their own fisheries and fishing capacity. In addition, to these factors, States are to take into consideration the effects of associated and dependent species with a view to ensuring their populations are also maintained or restored at levels above which their reproduction may become seriously threatened. No particular limits exist on the nature, form and content of the measures that can be adopted.40 In other words, States are free to adopt any measures in respect of their own nationals and to agree with other States on the adoption of any measures of collective application, subject only to the pacta tertiis rule and adherence with other rules of international law. 20 Within RFMOs, States have adopted a veritable plethora of conservation measures which can generally be divided into five broad categories: measures relating to stock assessment; management of fishing effort; allocation of fishing opportunities; compliance and enforcement; and protection of the wider marine environment. 41 Increasingly these measures reflect developments in soft law instruments such as applicable General Assembly resolutions on driftnet fishing42 and bottom trawling,43 Agenda 21,44 the Johannesburg Programme of Implementation,45 the 1995 Food and Agriculture Organization (FAO) Code of Conduct for 18

39 The texts of the objections, the submissions to the Review Panel and the Review Panel findings are available at http://www.southpacificrfmo.org/objections/. 40 ICJ, Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment of 4 December 1998, ICJ Reports (1998), 432, para. 73. 41 See Rayfuse (note 36). 42 GA Res. 44/225 of 22 December 1989; GA Res. 45/197 of 21 December 1990; GA Res. 46/215 of 20 December 1991. 43 GA Res. 61/105 of 6 March 2007; GA Res. 64/72 of 4 December 2009. 44 UNCED, Report of the United Nations Conference on the Environment and Development, UN Doc. A.CONF/151/26/REV.1 (Vol. I) (1992), 9 (Agenda 21). 45 UN World Summit on Sustainable Development, Report of the World Summit on Sustainable Development, UN Doc. A/CONF.199/20 (2002), 6 (Plan of Implementation of the World Summit on Sustainable Development), 23.

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Responsible Fisheries (Code of Conduct) and International Plans of Action elaborated under the Code,46 as well as the requirements articulated in the FAO Compliance Agreement, 47 the UNFSA and the CBD. However, Art. 119 provides no benchmarks against which the suitability of these measures can be assessed. Given continuing declines in high seas fish stocks48 the adequacy and efficacy of the measures adopted by States both directly and within RFMOs have come under increasing scrutiny. Since 2005, the issue of independent performance reviews of RFMOs has been on the international agenda and a number of RFMOs have undergone such reviews.49 In all cases, the adequacy and efficacy of conservation and management measures has formed part of the review. Assessments of the conservation measures adopted to date have shown mixed and uneven results. Quantitatively, some RFMOs have adopted a wide number and range of measures while others have adopted relatively few. Qualitatively, the efficacy of these measures has been found lacking, with depleted stocks and management failures being identified in all RFMOs.50 To improve conservation and management outcomes the Review Conference on the UNFSA has recommended that RFMOs conduct independent performance reviews on a regular basis. Importantly, Art. 119 provides no legal basis for juridical claims against non-member or 21 objecting States who take measures less stringent than those adopted by RFMOs. When combined with the principle of flag State jurisdiction articulated in Art. 91 and as confirmed in the M/V ‘Saiga’ Case51 and the The M/V ‘Virginia G’ Case,52 this lacuna encourages the use of ‘flags of convenience’ and the practice of reflagging to avoid the application of RFMO measures. This further compounds the problem of illegal, unreported and unregulated fishing (IUU fishing), or fishing that ‘occurs in violation of – or at least with disregard for – applicable fisheries rules, [whether those rules have been] adopted at the national or international level’. 53 IUU fishing encompasses a wide range of fishing activities that undermine the regulatory activities of, and conservation and management measures adopted by, RFMOs. 54 Enhancements to existing monitoring, control and surveillance measures have therefore also been recommended by all RFMO performance reviews.55

3. ‘best scientific evidence available’ Art. 119 does not mandate the adoption of particular conservation measures. However, it 22 does direct that measures taken are to be based on the ‘best scientific evidence available to the States concerned’.56 This is a relative standard that imposes no positive obligation to 46 International Plan of Action for Reducing Incidental Catch of Seabirds in Longline Fisheries (1998) (IPOASeabirds); International Plan of Action for the Conservation and Management of Sharks (1998) (IPOA-Sharks); International Plan of Action for the Management of Fishing Capacity (1999) (IPOA-Capacity); International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (2001) (IPOA-IUU). 47 FAO Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, 24 November 1993, UNTS 2221, 120. 48 The State of World Fisheries and Aquaculture: 2012 (note 32). 49 FAO, Performance Reviews by Regional Fisheries Bodies: Introduction, Summaries, Synthesis and Best Practices, Vol. 1, FAO Fisheries and Aquaculture Circular No. 1072 (2012). 50 UNFSA Review Conference, Report Submitted to the Resumed Review Conference in Accordance with Paragraph 32 of General Assembly Resolution 61/112 to Assist in Discharging its Mandate under Article 36, Paragraph 2 of the Agreement: Report of the Secretary General, UN Doc. A/CONF.210/2010/1. 51 ITLOS, The M/V ‘Saiga’ (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Merits, Judgment of 1 July 1999, ITLOS Reports (1999), 10. 52 ITLOS, The M/V ‘Virginia G’ Case (Panama v. Guinea-Bissau), Judgment of 14 April 2014, paras. 108–113, available at: http://www.itlos.org/index.php?id=171. 53 FAO, Implementation of the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, FAO Technical Guidelines for Responsible Fisheries No. 9 (2002), 6. 54 Rosemary Rayfuse, The Anthropocene, Autopoiesis and the Disingenuousness of the Genuine Link: Addressing Enforcement Gaps in the Legal Regime for Areas Beyond National Jurisdiction, in: Alex. G. Oude Elferink/Erik Jaap Molenaar (eds.), The International Legal Regime of Areas beyond National Jurisdiction: Current and Future Developments (2010), 165–190. 55 FAO Implementation (note 53), 8. 56 The same wording can be found in Art. 61 (2).

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conduct scientific research (� Part XXIII) to obtain or to improve data. However, as K AYE notes, ‘as a common property resource, in the absence of coordination of effort and cooperation in data collection and management, over exploitation is a logical conclusion for any high seas fishery that is economically viable’.57 This is because absence of data makes it impossible to calculate an appropriate TAC. Thus, a necessary corollary of the obligation to conserve is the need to acquire and adduce scientific evidence to show that proposed exploitation meets that obligation. In other words, the obligation to conserve effectively presupposes the ongoing conduct of scientific research and the acquisition of data. 23 Art 119 does not require scientific certainty before measures can be taken. Rather, it ‘indicates that the measures should be based on whatever evidence is at hand or reasonably available’.58 In this way, the requirement to act on the ‘best scientific evidence available’ operates as an ‘evidential requirement to ensure that decisions taken are science-driven’. 59 While Art. 119 is silent on the obligation to revise or acquire new data, implicit in the reference to the ‘best’ scientific evidence available, is the requirement to revise measures when better data is received. Where exploitation patterns change or new exploitation activities emerge, new scientific evidence will be needed to ensure achievement of the obligation to conserve. The requirement to conduct scientific research and to acquire data is thus not a static one and the obligation to use ‘best scientific evidence available’ can been seen as an evolving one. 60 24 Although mandating the use of the best scientific evidence available, nothing in Art. 119 precludes the adoption of measures on another basis where sufficient data or scientific evidence is not available.61 Thus, conservation measures may be taken even before scientific proof exists of overfishing. Art. 119 thus implicitly requires a precautionary approach to fisheries management.62 As articulated in Principle 15 of the Rio Declaration, 63 the precautionary approach requires that ‘where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation’. The need to apply a precautionary approach to the conservation and management of high seas fisheries is now generally accepted in international fisheries law as evidenced by the ITLOS Southern Bluefin Tuna Cases where the Tribunal called upon the parties to ‘act with prudence and caution to ensure that effective conservation measures are taken to prevent serious harm to the stock of southern bluefin tuna’.64 The annual General Assembly resolutions on sustainable fisheries further highlight the requirement of mainstreaming precautionary approaches into the conservation and management measures adopted by RFMOs. 25 Art. 6 UNFSA conclusively introduces the language and requirements of the precautionary approach into the management of straddling and highly migratory fish stocks, while Annex II UNFSA provides the methodology for its application. Art. 6 (2) UNFSA requires States to be more cautious when information is uncertain, unreliable or inadequate and makes clear that the absence of adequate scientific information shall not be used as a reason for postponing or failing to take conservation and management measures. States are thus ‘no longer free to ignore 57

Stuart Kaye, International Fisheries Management (2001), 150. Nordquist/Nandan/Rosenne (note 33), 310. David Freestone, Implementing Precaution Cautiously: The Precautionary Approach in the Straddling and Highly Migratory Fish Stocks Agreement, in: Ellen Hey (ed.), Developments in International Fisheries Law (1999), 287, 319. 60 Ibid. 61 Nordquist/Nandan/Rosenne (note 33) 310. 62 David Freestone, International Fisheries Law Since Rio: The Continued Rise of the Precautionary Principle, in: Alan Boyle/David Freestone (eds.), International Law and Sustainable Development (1999), 141; Rosemary Rayfuse, Precaution and the Protection of the Marine Environment in Areas Beyond National Jurisdiction, in: David Freestone (ed.), The 1982 Law of the Sea Convention at 30: Successes, Challenges and New Agendas (2013), 99–108. 63 UNCED, The Rio Declaration on the Environment and Development, UN Doc. A/CONF.151/5/REV.1 (1992), ILM 31, 874 (Rio Declaration). 64 Southern Bluefin Tuna Cases (note 8). For discussion, see generally David Freestone, Caution or Precaution: ‘A Rose By Any Other Name…?’, YIntEnvL 10 (1999), 25–32. 58 59

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conservation until a stock is shown to be under stress’.65 Utilising the concept of ‘reference points’, the UNFSA requires the adoption and use, on a stock specific basis, of two different types of precautionary reference points: conservation, or limit, reference points which set the boundaries for safe biological limits within which the stocks can produce MSY; and management, or target, reference points which are intended to meet management objectives. 66 Management strategies are to take into account uncertainties relating to the size and productivity of the stocks, reference points, stock condition in relating to the reference points, levels and distribution of fishing mortality and the impact for fishing activities on non-target and associated or dependent species, as well as existing and predicted oceanic environmental and socio-economic conditions,67 and must be set so as to ensure that the risk of exceeding conservation reference points is very low and that management reference points are not exceeded on average. 68 In the event management reference points are exceeded then States are obliged, without delay, to take action to restore the stocks.69 This includes the requirement to take temporary measures on an emergency basis to ensure that fishing activity does not aggravate the situation in the event of an adverse impact on stock status as a result of a natural phenomenon. 70 Importantly the UNFSA requires precautionary management strategies to be set for both harvested species and for nontarget or associated and dependent species.71 Thus, pro-active conservation measures can be justified by reference to the effects of fishing on both target and non-target species, making precautionary fisheries management an important tool for the conservation of marine biodiversity in general. In addition, new or exploratory fisheries are to be subject to cautious conservation and management measures, including catch and effort limits, which allow for the gradual development of the fisheries pending the acquisition of sufficient data to allow assessment of the impact of the fisheries on the long-term sustainability of the stocks. Once sufficient data is acquired, conservation and management measures are to be implemented. 72 The precautionary approach does not determine what measures are to be adopted but only 26 the point at which action will be necessary.73 Clearly, the measures needed depend on the particular circumstances at hand. The UN General Assembly moratorium on large scale high seas driftnet fishing74 and the International Whaling Commission moratorium on commercial whaling75 represent the most extreme form of precautionary measures in which the onus of proving by scientific evidence that resumption of hunting or fishing will not be environmentally harmful has been shifted to the proponents.76 The Convention on Conservation and Management of Pollock Resources in the Central Bering Sea, 77 similarly effectively compels a moratorium on fishing unless and until it is determined that the total biomass of pollock exceeds a level stipulated in the treaty. Since the adoption of the UNFSA, new RFMOs have been established expressly incorporating the requirements of a precautionary approach into their constitutive treaties and management mandates. 78 Indeed, even 65

Birnie/Boyle/Redgwell (note 3), 738. Annex II, para. 2 UNFSA. 67 Art. 6 (3)(c) UNFSA. 68 Annex II, para. 5 UNFSA. 69 Art. 6 (4) UNFSA. 70 Art. 6 (7) UNFSA. 71 Art. 6 (5) and Annex II, para. 4 UNFSA. 72 Art. 6 (6) UNFSA. 73 Birnie/Boyle/Redgwell (note 3), 738. 74 GA Res. 44/225 of 22 December 1989; GA Res. 45/197 of 21 December 1990; GA Res. 46/215 of 20 December 1991. For discussion, see Ivan A. Shearer, High Seas: Drift Gillnets, Highly Migratory Species and Marine Mammals, in: Tadao Kuribayashi/Edward L. Miles (eds.), The Law of the Sea in the 1990s: A Framework for Cooperation (1990), 237–258. 75 See Rayfuse on Art. 120. 76 Birnie/Boyle/Redgwell (note 3), 738. 77 Convention on Conservation and Management of Pollock Resources in the Central Bering Sea, 16 June 1994, ILM 34 (1994), 67. 78 Arts. 5 (c) and 6 Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western Central Pacific Ocean, establishing the Western and Central Pacific Fishery Commission (WCPFC), 66

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before the formal establishment of the South Pacific RFMO the negotiating parties adopted interim measures based on the precautionary approach limiting bottom trawling and catch limits pending the conclusion of the negotiations.79 These measures were formally adopted as conservation measures when the organisation was formally established in 2012. Existing RFMOs have amended their conventions80 or have adopted new management frameworks requiring the implementation of precautionary approaches to conservation and management that allow scientific committees to develop formula for the inclusion of estimates of unreported catch, or the effects of climate change or other environmental stressors, into their stock assessments.81 Some RFMOs have adopted measures relating to the definition and use of the ‘best available scientific evidence’,82 and have begun to engage in independent peer review of stock assessments and catch estimates.83

4. ‘Qualified’ Maximum Sustainable Yield of Harvested Species MSY is a biological concept that refers to the maximum catch that can be taken from a species or stock over an indefinite period. It is designed to ensure that stocks are exploited at the level of ‘maximum physical output and natural rate of increase, preserving their highest resilience’.84 MSY is achieved when both stock mortality and recruitment to the stock are maximised at the same time. As a management technique it seeks to maintain the productivity of the oceans by allowing fishers to take only that number of fish from a stock that is replaced by the annual rate of new recruits (young fish of harvestable size) entering the stock. In theory, maintenance of MSY provides optimum sustainable yield (OSY). 28 MSY is a catch-based management technique requiring calculation of a TAC on the basis of biological parameters and its allocation as between fishers. As a single species management tool, MSY does not take account of interrelations between targeted species and other species in the ecosystem. Nor does it take account of other factors impacting on sustainable resource exploitation such as the economic value of the catch, the cost of catching and the natural instability of some stocks.85 Further, it does nothing to deal with the need to restrict effort. MSY has been heavily criticised as a management technique by both fisheries economists and biologists since the 1960s’.86 Nevertheless, the UNCLOS embraces the concept for both EEZ and high seas marine living resources. 27

5 September 2000, UNTS 2275, 43; Arts. 3 (3) and 7 Convention on the Conservation and Management of Fishery Resources in the South-East Atlantic, establishing the South-East Atlantic Fisheries Organisation (SEAFO), 13 April 2003, UNTS 2221, 191; Arts 3(1)(b) and 3(2) Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean, establishing the South Pacific Regional Fisheries Management Organisation (South Pacific RFMO), 14 November 2009, available at: https://treaties.un.org/pages/ showDetails.aspx?objid=0800000280363a44. 79 For information and the texts of the interim measures, see: https://www.sprfmo.int/interim-measures/. 80 For example, in 1997 the General Fisheries Council for the Mediterranean (GFCM) adopted a revised convention which entered into force on 29 April 2004. On 28 September 2007, the Northwest Atlantic Fisheries Organisation (NAFO) adopted a document entitled ‘Amendment to the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries’, constituting the first formal step towards a reformed Convention for NAFO. As of 2013 five parties have ratified the amended convention, which has yet to enter into force. In 2007 the North-East Atlantic Fisheries Commission (NEAFC) adopted a revised Convention which the parties have agreed to apply on a provisional basis pending its ratification. In 2003, the Intern-American Tropical Tuna Commission (IATTC) adopted a new Convention for the Strengthening of the Inter-American Tropical Tuna Commission (the Antigua Convention), which came into force on 27 August 2010. 81 See e. g., NAFO, Precautionary Approach Framework, NAFO/FC Doc. 04/18 2004. 82 See e. g., CCAMLR Resolution 31/XXVIII on Best Available Science. 83 See NAFO, Report of External Experts on Peer Review of the Method of Catch Estimation on NAFO Stocks, NAFO Report of the General Council and its Subsidiary Body (2012), 38. 84 FAO, High Seas Management: New Concepts and Techniques, FAO Doc. FI/HSF/TC/92/5 (1992), 15. 85 Ibid. 86 Hey (note 17), 766.

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Importantly, however, like its EEZ counterpoint, Art. 61, Art. 119 adopts a ‘qualified 29 maximum sustainable yield’ approach (qualified MSY) calling upon States to take conservation measures ‘on the basis of the best scientific evidence available’ in order to: ‘maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors, including the special requirements of developing States, and taking into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether subregional, regional or global.’87

By requiring consideration of the interdependence of stocks, Art. 119 provides for a potentially more effective, although more complicated conservation regime. However, by qualifying the MSY as it does, the concept of conservation in Art. 119 is no longer a biological one aimed at ensuring maximal food supplies. It is a political and economic concept in which the risk of exhaustibility of the resource may be subjugated to other interests. 88 Indeed, while MSY has generally been found to be unacceptable as a safe target management reference point, in particular for rebuilding depleted stocks,89 qualified MSY has proven even more problematic because it allows for the possibility that biologically acceptable MSY may be exceeded for reasons wholly unrelated to the health of fish stocks, such as protecting employment in the fishery sector.90 Thus, rather than contributing to the conservation of the living resources of the high seas, Art. 119 actually exacerbates the potential for over-utilisation by giving States a wide discretion to deviate from the biological limits of MSY and to over-allocate existing resources. Developments in international environmental law provide guidance on the evolutionary 30 interpretation to be given to qualified MSY. General acceptance of the precautionary approach now requires the adoption of precautionary reference points which ensure that management reference points are set lower than the conservatory reference point of MSY. 91 The concept of sustainability and the need to ensure the continuing availability of marine living resources to meet the needs of both present and future generations also now circumscribe the interpretation of qualified MSY. Although not specifically mentioned in the UNCLOS, the requirement of ‘sustainability’ can be inferred from Art. 117, with the obligation to conserve at MSY being considered ‘the bottom-line threshold of “sustainability”’.92 The requirement of conservation and ‘sustainable use’ of marine living resources of the high seas, committed to in Agenda 21, 93 and reiterated in the 2002 Plan of Implementation of the World Summit on Sustainable Development,94 is now articulated in the UNFSA as the requirement to ensure the long-term sustainability of straddling and highly migratory fish stocks.95

5. ‘species associated with or dependent upon’ Some of the difficulties relating to the biological deficiencies of MSY are addressed in 31 Art. 119 (1)(b) which provides that in determining catch limits and conservation measures 87

Emphasis added. See Rosemary Rayfuse, The Interrelationship Between the Global Instruments of International Fisheries Law, in: Ellen Hey (ed.), Developments in International Fisheries Law (1999), 107, 126–130. For a discussion of the effects of social factors see Michael H. Glantz, Man, State and Fisheries: An Inquiry into some Societal Constraints that Affect Fisheries Management, ODIL 17 (1986). 89 FAO, Reference Points for Fisheries Management: Their Potential Application to Straddling and Highly Migratory Resources, UN Doc. A/CONF.164/INF/9 (1994). 90 See United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, Applicability of the Concept of Maximum Sustainable Yield: Working Paper Submitted by Ukraine for the Working Group on the Concept of Maximum Sustainable Yield, UN Doc. A/CONF.164/L.42 (1994). 91 Arts. 5, 6 and Annex II UNFSA. For details see S. Garcia, The Precautionary Approach to Fisheries with Reference to Straddling Fish Stocks and Highly Migratory Fish Stocks, FAO Fisheries Circular No. 871 (1994). 92 Gunnar G. Schram/Andre Tahindro, Developments in Principles for the Adoption of Fisheries Conservation and Management Measures, in: Ellen Hey (ed.), Developments in International Fisheries Law (1999), 252, 265. 93 Agenda 21, Ch. 17. 94 Plan of Implementation of the World Summit on Sustainable Development (note 45), para. 31(a)). 95 Arts. 2 and 5 (a) UNFSA. 88

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States are also to take into consideration the effects on dependent and associated species with a view to ensuring they, too, are maintained at or restored to levels above which their reproduction may be seriously threatened. No definitions of ‘associated’ or ‘dependent’ species are given. However, it seems logical to suggest that species ‘dependent upon harvested species’ refers ‘primarily to species that are predators of harvested species’ while species ‘associated with harvested species’ include those species ‘that may be caught incidentally when fishing, species that are the prey of harvested species, or species having some other form of biological association with harvested species’.96 Incidental catch may include non-target fish species as well as smaller marine mammals (dolphins and porpoises), amphibians (i. e. turtles) and birds (i. e. albatross). Prey of harvested species includes smaller fish, plankton and other life forms. 32 The level of protection afforded to associated and dependent species is considerably weaker than that provided to target species. Whereas Art. 119 (1)(a) requires States to adopt measures to ensure that target species are maintained or restored at levels that can produce qualified MSY, Art. 119 (1)(b) merely requires States to ‘take into consideration’ the effect of their measures on associated and dependent species with a view to maintaining or restoring populations of such species ‘above levels at which their reproduction may become seriously threatened’. In addition, by definition, not all marine life forms are included under the rubric of associated and dependent species. While the populations of these other life forms may be adversely affected by other human activities such as cable laying (� Art. 87 (1)(c)) and seabed mining (� Art. 77; Part XI), their conservation will be subject only to the obligations in Part XII relating to protection of the marine environment. 33 Although the terminology of ‘ecosystem approach’ is nowhere to be found in the UNCLOS, Art. 119 (1)(b) and its counterpart Art. 61 (4), along with Art. 145 relating to activities in the Area, do demonstrate a rudimentary invocation the approach. This interpretation is consistent with the overarching obligation in Art. 194 (5) to take measures 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’, and with more recent developments in international law. In particular, the ecosystem approach has been endorsed by the parties to the CBD97 and is stressed in the 1995 FAO Code of Conduct for Responsible Fisheries 98 and the Plan of Implementation adopted by the World Summit on Sustainable Development.99 In the high seas fisheries context, the ecosystem approach is now mandated by Art. 5 UNFSA which requires States to assess the impacts of fishing, other human activities and environmental factors on target stocks and species belonging to the same ecosystem or associated with or dependent upon target stocks and to adopt, where necessary, conservation and measures for species belonging to the same ecosystem or associated with or dependent upon the target stocks, with a view to maintaining or restoring populations of such species above levels at which their reproduction may become seriously threatened. In addition, States are to minimize pollution, waste, discards, catch by lost or abandoned gear, catch of non-target species, both fish and non-fish species, and impacts on associated or dependent species, in particular endangered species through measures including the development and use of selective, environmentally safe and cost-effective fishing gear and techniques. 34 Practical invocations of the ecosystem approach in the high seas context include the 1992 UN General Assembly moratorium on large-scale pelagic driftnet fishing, 100 and the 2001 Agreement on the Conservation of Albatrosses and Petrels,101 both of which seek to protect non-target species. The International Plans of Action adopted by the FAO on sharks, 96 Robin Churchill, The LOSC Regime for the Protection of the Marine Environments – Fit for the 21st Century?, in: Rosemary Rayfuse (ed.), Research Handbook on International Marine Environmental Law (2015) 3. 97 COP CBD, Decision Adopted by the Conference of the Parties to the Convention on Biological Diversity at its Fifth Meeting: V/6. Ecosystem Approach. UN Doc. UNEP/CBD/COP/DEC/V/6 (2000). 98 http://www.fao.org/docrep/005/v9878e/v9878e00.htm. 99 Plan of Implementation of the World Summit on Sustainable Development (note 45). 100 GA Res. 46/215 of 20 December 1991. 101 Agreement on the Conservation of Albatrosses and Petrels, 19 June 2001, UNTS 2258, 257.

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seabirds, and bycatch management and reduction of discards,102 similarly establish global standards for the reduction of incidental catch and conservation and management of nontarget species thereby providing elaboration of the approach. The UNGA Resolutions on bottom fisheries103 and the FAO International Guidelines on Deep-Sea Fisheries in the High Seas104 go beyond considerations of incidental and non-target catch to require States to take measures, including the conduct of impact assessments, prohibition of bottom trawling in known or suspected vulnerable areas, and the management of fisheries so as to prevent adverse impacts on the broader marine environment and, in particular, on non-harvestable marine species and vulnerable marine ecosystems including seamounts, hydrothermal vents, and cold seeps. The ecosystem approach is also reflected in the mandates and practice of RFMOs. Indeed, 35 Art. II of the 1980 Convention on the Conservation of Antarctic Marine Living Resources 105 specifically mandates an ecosystem approach, requiring States parties to ensure the ‘maintenance of the ecological relationships between harvested, dependent and related populations of Antarctic marine living resources’ and the restoration of deleted populations to levels at which the greatest annual recruitment is ensured. In addition, parties are to ensure the prevention of non-reversible changes or minimization of the risk of changes in the marine ecosystem. Other RFMOs have updated their constitutive treaties or interpreted their management mandates to include the requirement of an ecosystem approach, adopting measures relating to by-catch of non-target fish species as well as measures aimed at preventing or reducing by-catch of species including sharks, dolphins, turtles and sea birds. RFMOs have also moved to implement the UNGA resolutions on bottom fisheries and the protection of vulnerable marine ecosystems by adopting measures to control destructive fishing practices like bottom trawling to reduce fishing pressures on deep-sea stocks and by closing certain areas to fishing. The establishment of high seas marine protected areas remains, however, controversial due to concerns that they interfere with the freedom of fishing and may be discriminatory.106

6. ‘generally recommended international minimum standards’ In determining the allowable catch and establishing conservation measures for harvested 36 species, Art. 119 (1)(a) requires States to take into account any generally recommended international minimum standards, whether subregional, regional or global. This reliance on external rules is consistent with the ‘framework’ character of the UNCLOS 107 and ensures its evolutionary interpretation. The reference to ‘generally recommended’ as distinct from ‘generally accepted’ (see e. g. Art. 211 (2)) international minimum standards avoids uncertainty and ambiguity surrounding the nature and extent of their acceptance. 108 However, by requiring States merely to take such recommended standards into account, Art. 119 (1)(a) still leaves open the possibility for States to derogate from such standards where they are not otherwise bound by positive treaty obligations. Reference to generally recommended standards is wide enough to encompass the standards 37 relating to all activities relevant to the conservation of high seas fish stocks that are found in a plethora of international instruments including the generally recommended international standards adopted through the FAO. These include the Code of Conduct for Responsible Fisheries,109 and the associated International Plans of Action dealing with Sharks, Seabirds, 102

See supra, note 45. GA Res. 61/105 of 6 March 2007; GA Res. 64/72 of 4 December 2009. 104 FAO, International Guidelines for the Management of Deep-Sea Fisheries in the High Seas (2009). 105 Convention on the Conservation of Antarctic Marine Living Resources 20 May 1980, UNTS 1329, 47. 106 Borg (note 5), 73. 107 Malcolm D. Evans, The Law of the Sea, in: Malcolm D. Evans (ed.), International Law (4th edn. 2014), 651, 653. 108 Birnie/Boyle/Redgwell (note 3), 389–90. 109 See generally Gerald Moore, The Code of Conduct for Responsible Fisheries, in: Ellen Hey (ed.), Developments in International Fisheries Law (1999), 85–106. 103

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Fishing Capacity, and Illegal, Unreported and Unregulated Fishing, as well as the International Guidelines for the Management of Deep-Sea Fisheries in the High Seas, the Guidelines for the Ecolabelling of Fish and Fishery Products from Marine Capture Fisheries, 110 and the Voluntary Guidelines for Assessing Flag States Performance.111 Also included are standards adopted by the UN General Assembly articulated, for example, in its resolutions on large-scale high seas pelagic driftnet fishing and bottom trawling.112 38 Relevant international standards also include those adopted in binding global, regional or sub-regional agreements. At the global, level the most important is the UNFSA which comprehensively sets out the obligations for its States parties in relation to the conservation and management of straddling and highly migratory fish stocks. A signal feature of the UNFSA is its requirement that only those States who are members of RFMOs or who agree to apply the conservation and management measures adopted by RFMOs are entitled to access the fishery resources to which those measure apply.113 Also important are the 1993 Compliance Agreement which specifies flag State responsibilities in respect of vessels fishing on the high seas and the 2009 Port State Measures Agreement114 which aims to prevent illegally caught fish from entering international markets through ports. The Global Record of Fishing Vessels Refrigerated Transport Vessels and Supply Vessels (Global Record), 115 a voluntary global initiative which makes information on vessel identification and other relevant data available through the FAO, provides support to these treaties. At the regional and sub-regional level, measures adopted by RFMOs and other regional or subregional arrangements are also relevant. 39 Consistent with Art. 116(a) and the stipulation that the freedom to fish is subject to a State’s other treaty obligations, relevant international standards are not limited to those adopted by fisheries bodies but also include those adopted under environmental instruments. In particular, the decisions on Marine and Coastal Biodiversity adopted by the Conference of the Parties to the CBD provide guidance on minimum standards relating to ongoing monitoring and assessment of marine fisheries productivity, ecosystem impacts, elimination of destructive fishing techniques, protection of vulnerable marine areas, 116 and consideration of the effects of climate change on the sustainability of fish stocks and habitats. 117 In furtherance of international goals relating to the establishment of representative networks of marine protected areas (MPAs), including on the high seas118 (see also � Art. 61 and Art. 211 (6)), parties to the CBD have adopted ‘Scientific Criteria for Identifying Ecologically of Biologically Significant Marine Areas in Need of Protection in Open-Ocean Waters and Deep-Sea Habitats’ (EBSAs) and ‘Scientific Guidance for Selecting Areas to Establish a Representative Network of Marine Protected Areas, Including in Open-Ocean waters and Deep-Sea Habitats’.119 These standards are reflected in the decisions of the parties to the 110

FAO, Guidelines for the Ecolabelling of Fish and Fishery Products from Marine Capture Fisheries (2005). FAO, Voluntary Guidelines for Assessing Flag States Performance (2013), available at: ftp://ftp.fao.org/FI/ DOCUMENT/tc-fsp/2013/VolGuidelines_adopted.pdf. 112 GA Res. 44/225 of 22 December 1989; GA Res. 45/197 of 21 December 1990; GA Res. 46/215 of 20 December 1991; GA Res. 61/105 of 6 March 2007; GA Res. 64/72 of 4 December 2009. 113 Art. 8 (4) UNFSA. 114 FAO, Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, 22 November 2009, available at: http://www.fao.org/fileadmin/user_upload/legal/docs/ 2_037t-e.pdf (not yet in force). 115 For information, see http://www.fao.org/fishery/global-record/en. 116 See, e. g., COP CBD, Decision VII/5 Marine and Coastal Biological Diversity, UN Doc. UNEP/CBD/COP/ Dec/VII/5 (2004). 117 See, e. g., COP CBD, Decision X/29. Marine and Coastal Biodiversity, UN Doc. UNEP/CBD/COP/DEC/X/ 29 (2010), 2 (para. 7). 118 See Plan of Implementation of the World Summit on Sustainable development (note 45), 25 (para. 32(c)); COP CBD, Decision X/2. The Strategic Plan for Biodiversity 2011–2020 and the Aichi Biodiversity Targets, UN Doc. UEP/CBD/COP/DEC/X/2 (2010), 9, Annex (Target 11). See also GA, The Future We Want, GA Res. 66/288 of 27 July 2012, Annex, para. 177. 119 COP CBD, Decision IX/20. Marine and Coastal Biodiversity, UN Doc. UNEP/CBD/COP/DEC/IX/20 (2008), 11. 111

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Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention)120 and the North-East Atlantic Fisheries Convention121 relating to the establishment of joint MPAs in the areas beyond national jurisdiction in the North-East Atlantic.122 The implications of, and relationship between, MPA establishment and fisheries management remains, however, contentious. Other relevant international standards include those adopted by the parties to the 40 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)123 which, in its Appendix I, lists cetaceans and various other marine mammals as endangered and therefore banned from trade. Attempts to list bluefin tuna on CITES Appendix II for the purposes of controlling trade, while unsuccessful, did result in the adoption of a more effective enforcement regime within the International Commission for the Conservation of Atlantic Tunas (ICCAT), while the successful listing of the Patagonian toothfish has facilitated the enforcement of trade-related conservation measures adopted for this species by the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) by effectively extending trade controls to all States parties to CITES. 124 In addition, the Bonn Convention (Convention on the Conservation of Migratory Species of Wild Animals),125 the Berne Convention (Convention on the Conservation of European Wildlife and Natural Habitats),126 the Convention for the Conservation of Antarctic Seals127 and the Inter-American Convention for the Protection and Conservation of Sea Turtles 128 list certain marine species as protected while the various agreements comprising the UNEP Regional Seas Programme establish standards relating to the conservation of marine biodiversity, including in areas beyond national jurisdiction. The function of generally recommended international minimum standards is to ensure the 41 sustainability of stocks and the continued enjoyment of the freedom of fishing by all through the adoption of a guaranteed minimum mandatory set of conservation measures relating to such things as vessel licensing and authorisation to fish, more selective fishing gear, harnessing fishing effort, and the prohibition of certain fishing methods. While some measures such as atsea boarding and inspection remain contested, States have acquiesced to other examples of these minimum standards such that some may be said to have crystallised into customary international law.129 The harmonisation function of these ‘generally recommended international minimum standards’ is illustrated by the ‘Kobe Process’ through which, since 2007, the five tuna RFMOs (the International Commission for the Conservation of Atlantic Tuna (ICCAT), the Inter-American Tropical Tuna Commission (IATTC), the Commission on the Conservation of Southern Bluefin Tuna (CCSBT), the Indian Ocean Tuna Commission (IOTC) and the Western and Central Pacific Fisheries Commission (WCPFC)) have worked to ensure a harmonised approach to scientific research and the acquisition of data, the adoption of conservation and management measures and the adoption of control and enforcement measures. 120 Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention), 22 September 1992, UNTS 2354, 67. 121 Convention on Future Multilateral Cooperation in North-East Atlantic Fisheries, 18 November 1980, UNTS 1285, 129. 122 For discussion, see: Nele Matz-Lu ¨ ck/Johannes Fuchs, The Impact of OSPAR on Protected Area Management beyond National Jurisdiction: Effective Regional Cooperation or a Network of Paper Parks?, Marine Policy 49 (2014), 155–166. 123 The Convention on International Trade in Endangered Species of Wild Flora and Fauna, 3 March 1973, UNTS 993, 243. 124 Borg (note 5), 245. 125 Convention on the Conservation of Migratory Species of Wild Animals, 23 June 1979, ILM 19 (1980), 15. 126 Convention on the Conservation of European Wildlife and Natural Habitats, 19 September 1979, UNTS 1284, 209. 127 Convention for the Conservation of Antarctic Seals, 1 June 1972, UNTS 1080, 175. 128 Inter-American Convention for the Protection and Conservation of Sea Turtles, 1 December 1996, UNTS 2164, 29. 129 Borg (note 5), 73.

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7. ‘scientific information, catch and effort statistics and other relevant data relevant to the conservation of fish stocks shall be contributed and exchanged […] through competent international organisations’ Accurate stock assessment and the development of appropriate management plans for sustainable fisheries requires adequate scientific information relating to, among other things, biological data, migratory habits of the species concerned, fishing gear and harvesting methods used, and catch landings, including incidental catch, of the particular species in question and vulnerable marine ecosystems. Art. 119 (2) thus mandates the regular contribution and exchange of available scientific information and other relevant data through competent international organisations. Reference to the ‘other relevant data’ may be taken as implying something other than ‘scientific’ data and thus may include data on vessel numbers and capacity, identity of vessels engaged in IUU fishing, and other socio-economic factors relevant to the determination of the qualified MSY. 43 Organisations through which exchange is to occur may be global, regional or sub-regional but this exchange is to be conducted with ‘participation by all States concerned’. At a minimum, this suggests that all States whose vessels fish on the high seas are to participate in this exchange as well as all relevant coastal States. This is now confirmed by reference to Art. 8 UNFSA which requires all States participating in a fishery and all relevant coastal States to become members of the relevant RFMO. Left unclear is the obligation on other, non-fishing, States to contribute to the exchange of information. 44 Art. 119 says nothing about the timeliness, the level of detail, the quality, or the accuracy of the information to be exchanged other than it is to be ‘relevant to the conservation of fish stocks’. This lacuna is now addressed in the UNFSA. Art 10 UNFSA requires RFMOs to: obtain and evaluate scientific advice; review the status of stocks and assess the impact of fishing on non-target and associated or dependent species; agree on standards for collection, reporting, verification and exchange of data on fisheries for the stocks; compile and disseminate accurate and complete statistical data to ensure best scientific evidence is available; and promote and conduct scientific assessments of the stocks and relevant research and disseminate the results thereof. Art. 14 UNFSA requires States not only to collect and exchange scientific, technical and statistical data but also to ensure the data collected are of sufficient detail to facilitate effective stock management and are provided in a timely manner to fulfil the requirements of the relevant RFMO. States must also take appropriate measures to verify the accuracy of the data. Art. 14 (2) of the UNFSA requires States to agree on data and format specifications and to develop and share analytical techniques and stock assessment methodologies. Consistent with Part XIII UNCLOS, Art. 14 (3) UNFSA requires scientific research capacity to be strengthened and research results to be published and disseminated to all interested. 45 At the global level, the FAO acts as the central repository for global fisheries statistics submitted by member States in furtherance of their obligations under the FAO Constitution.130 This information is compiled, analysed, synthesised and disseminated by the FAO in various formats including: a global capture production database which includes information on fishing fleets, fishers and trade-related data; publications of global catch, fleet and employment statistics by country, global stock status reviews and bio-ecological information on commercially exploited aquatic species; publication of worldwide fish price reports, market studies and trend analysis. The FAO has also been instrumental in developing global fisheries statistical and data standards aimed at improving data exchange and integration through partnerships with regional and national institutions. Also important at the global level is the UN General Assembly and its two subsidiary bodies, the United Nations Informal 42

130 Arts. XI(5) and XVI Constitution of the Food and Agriculture Organisation of the United Nations, 16 October 1945, FAO Basic Texts (2013) vol. I, 3.

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Open-Ended Consultative Process on the Law of the Sea (UNICPOLOS) and its 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 (BBNJ Working Group) where dissemination and exchange of scientific information relating to the status of global fish stocks and broader ecosystem concerns has led to the adoption of General Assembly resolutions on the protection of vulnerable marine ecosystems from the adverse effects of destructive fishing practices such as bottom trawling, 131 and calls for the inclusion of fisheries in the proposed negotiations on a possible new implementing agreement on the protection of marine biodiversity in areas beyond national jurisdiction, although the extent to which fisheries will be included remains to be seen. 132 At the regional level, RFMOs are the primary mechanism through which the exchange of 46 information takes place.133 Indeed, the dissemination and exchange of information is critical to the ability of RFMOs to fulfil their management mandate to set TACs and to determine participatory rights. Data reporting requirements exist across all RFMOs and include requirements for data on effort, catches and discards in both established and exploratory fisheries where the primary objective is to ensure the capture of relevant data for future stock management and TAC/quota allocation purposes.134 These requirements have become increasingly complex and detailed over the years, requiring ever finer scale and more comprehensive data to ensure that RFMOs can deal with the scientific uncertainty resulting either from the absence of data, or from non-reporting of data by members, or from the problem of non-reporting by non-members. Increasingly, RFMOs are also sharing information and data relevant to the conservation of fish stocks amongst themselves. For example, negative lists of IUU vessels are now routinely shared amongst RFMOs. In 2007, the five tuna RFMOs agreed to establish a common IUU list135 while other RFMOs such as the Northwest Atlantic Fisheries Organisation (NAFO), the North-East Atlantic Fisheries Commission (NEAFC), the Southeast Atlantic Fisheries Organisation (SEAFO) and the Commission on the Conservation of Antarctic Marine Living Resources (CCAMLR) have agreed to reciprocal recognition of each other’s IUU lists. Reference to ‘competent international organisations’ can also be read as referring to other 47 relevant non-fisheries related organisations. Memoranda of Understanding between RFMOs, the International Maritime Organisation (IMO), and other conservation treaty bodies, such as the CMS, and CITES now provide formal mechanisms for the exchange of relevant scientific information and data. Representation at RFMO meetings of observers from other fisheries and non-fisheries treaty bodies also provides an informal but nevertheless useful mechanism for the dissemination of relevant information.

8. ‘conservation measures [shall] not discriminate’ Art. 119 (3) requires States to ensure that the conservation measures they adopt do not 48 discriminate in form or in fact against the fishermen of any State engaged in fishing on the 131 GA Res. 44/225 of 22 December 1989; GA Res. 45/197 of 21 December 1990; GA Res. 46/215 of 20 December 1991; GA Res. 61/105 of 6 March 2007; GA Res. 64/72 of 4 December 2009. 132 See UN, Summary of Discussions: Outcome of the Ad Hoc Open-ended Informal Working Group to Study Issues Relating to the Conservation and Sustainability of Marine Biological Diversity beyond National Jurisdiction, 20–23 January 2015, para. 19 (advance and unedited), noting that while support for the inclusion of fisheries was expressed by some delegations, this was opposed by others on the basis that high seas fisheries are already regulated under the UNFSA. The recommendation transmitted to the General Assembly calls for negotiations to address ‘the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction, in particular, together and as a whole, marine genetic resources, including questions on the sharing of benefits, measures such as area-based management tools, including marine protected areas, environmental impact assessments and capacity building and the transfer of marine technology’. Recommendations, para. 1(g). 133 See generally Rayfuse on Art. 118. 134 See e. g., CCAMLR Conservation Measure 21-02 (2013) on Exploratory Fisheries. 135 See the Report of the Joint Meeting of Tuna RFMOs, 22–26 January 2007, available at: http://www.tunaorg.org/meetingspast.htm.

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high seas. This means that measures adopted must neither discriminate against the fishermen of any State nor have a discriminatory effect on such fishermen. Thus both cooperation and consideration of the rights and interest of all States fishing on the high seas is required. In this way, concerns that only a small number of States might reap the benefits of high seas fishing are ameliorated. 49 The requirement of equality of treatment raises the problem of allocation of fishing opportunity and participation by new entrants to a fishery which is fully utilised. In principle, new entrants should not be excluded from a share of the TAC. However, pursuant to Art. 118 and as confirmed by Art. 8 UNFSA, where conservation measures already exist, new entrants should exercise their right to fish through the relevant RFMO or other arrangement consistently with those measures,136 although Art. 119 (3) provides no guidance on the consequences of a failure to do so either by non-member ‘free riders’ or by member States who utilise ‘opt-out’ or objection procedures to escape the application of otherwise binding measures. In practice, some RFMOs have taken the position that new entrants can expect no quota allocation in already fully allocated fisheries. Others have adopted measures setting out criteria for allocating new fishing opportunities. As between existing members, the findings and recommendations of the Review Panel established under article 17 and Annex II of the Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean with regard to the objection by the Russian Federation to a decision of the Commission of the South Pacific RFMO137 indicate that failure to grant a quota allocation to a member State constitutes unjustifiable discrimination. As regards nonmembers, disputes relating to allocation will be subject to the dispute settlement procedures set out in Part XV. 50 The requirement of equality of treatment also raises problems relating to compliance and enforcement. While States are free (consistent with their other international obligations) to adopt conservation and management measures relating, for example, to boarding and inspection, port State controls, and trade related measures, the requirement of non-discrimination means that such measures must be imposed on all States and cannot be targeted against the vessels of only one or a few particular States. This then implies the need for consistency in the design and application of measures as against both members and nonmembers of RFMOs.

Article 120 Marine mammals Article 65 also applies to the conservation and management of marine mammals in the high seas. Bibliography: Patricia W. Birnie, Marine Mammals: Exploiting the Ambiguities of Art. 65 of the Convention on the Law of the Sea and Related Provision – Practice under the International Convention for the Regulation of Whaling, in: David Freestone/Richard Barnes/David M. Ong (eds.), The Law of the Sea: Progress and Prospects (2006), 264–280; Particia Birnie/Alan Boyle/Catherine Redgewell, International Law and the Environment (2009); William T. Burke/Mark Freeberg/Edward L. Miles, United Nations Resolution on Driftnet Fishing: An Unsustainable Precedent for High Seas and Coastal Fisheries Management, ODIL 25 (1994), 127–186; Alexander Gillespie, Whaling Diplomacy: Defining Issues in International Environmental Law (2005); Grant J. Hewison, High Seas Driftnet Fishing in the South Pacific and the Law of the Sea, GIELR 5(2) (1993), 313–374; Grant J. Hewison, The Legally Binding Nature of the Moratorium on Large-Scale High Seas Driftnet Fishing, JMLC 25 (1994), 557–579; Ellen Hey/William T. Burke/Doris Ponzoni/Kazuo Sumi, The Regulation of Driftnet Fishing on the High Sea: Legal Issues, FAO Legislative Study 47 (1991); Kristin Kaschner/Derek P. Tittensor/Jonathan Ready/ Tim Gerrodette/Boris Worm, Current and Future Patterns of Global Marine Mammal Biodiversity, PLoS ONE 6 (2011), e19653; Leonard L. Leonard, Recent Negotiations Towards the International Regulation of Whaling, AJIL 136 137

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35 (1941), 90–113; Simon Lyster, International Wildlife Law (1985); Simon P. Northridge, Driftnet Fisheries and Their Impacts on Non-Target Species: A Worldwide Review, FAO Fisheries Technical Paper 320 (1991); Natalia S. Mirovitskaya/J. Christopher Haney, Fisheries Exploitation as a Threat to Environmental Security: The North Pacific Ocean, Marine Policy 16 (1992), 243–258; Donald R. Rothwell/Tim Stephens, The International Law of the Sea (2010); James E. Scarff, The International Management of Whales, Dolphins and Porpoises: An Interdisciplinary Assessment, Ecology Law Quarterly 6 (1977), 343–373; Ivan Shearer, High Seas: Drift Gillnets, Highly Migratory Species and Marine Mammals, Law of the Sea Institute Proceedings 24 (1992), 237–258; Arthur E. J. Went, Seventy Years Agrowing: A History of the International Council for the Exploration of the Sea 1902–1972 (1972); Andrew Wright/David J. Doulman, Drift-net Fishing in the South Pacific: From Controversy to Management, Marine Policy 15 (1991), 303–337 Documents: FAO, Report of the Expert Consultation on Large Scale Pelagic Driftnet Fishing, FAO Fisheries Report No. 434 – FIPL/R434 (1990); FAO, Large-Scale Pelagic Driftnet Fishing, FAO Doc. COFI/91/5 (1991) and Suppl.1 (1991); GA Res. 46/215 of 20 December 1991; IWC Resolution 1994–5 on the Revised Management Scheme (1994) Cases: Award between the United States and the United Kingdom, Relating to the Rights of Jurisdiction of United States in the Bering’s Sea and the Preservation of Fur Seals (United States v. United Kingdom), Decision of 15 August 1893, RIAA XXVIII, 263; ICJ, Whaling in the Antarctic (Australia v. Japan; New Zealand intervening), Judgment of 31 March 2014, available at: http://www.icj-cij.org/docket/files/148/18136.pdf Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘Article 65 also applies’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘Marine mammals in the high seas’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 4 11 11 12

I. Purpose and Function Art. 120 incorporates Art. 65 into Part VII, Section 2 by reference. Its purpose is to extend 1 the application of Art. 65, concerning the conservation of marine mammals in the exclusive economic zone (EEZ), to the conservation and management of marine mammals in the high seas. Thus, the two articles must be read together. Doing so makes clear that marine mammals in the high seas are exempt from the freedom of exploitation. The possibility is provided for measures to be taken by States and competent international organisations in stricter terms than those provided elsewhere in Part VII, Section 2. Thus while neither Art. 120 nor Art. 65 prohibits the exploitation of marine mammals in the high seas, they do give States and international organisations the right to do so.1 Marine mammals consist of approximately 122 species divided between three taxonomic 2 orders: cetaceans (whales, dolphins and porpoises); sirenians (sea cows, manatees, and dugongs); and carnivores (pinnipeds, including seals, sea lions, fur seals, sea otters, and polar bears).2 Not all marine mammals occur in the high seas. For example, sirenians, and many pinnipeds occur only in coastal areas.3 For those marine mammals that do occur in the high seas or that migrate between high seas areas and areas under national jurisdiction, or between areas under national jurisdiction, however, the need for international cooperation in preventing their over-exploitation is considered self-evident.4 Art. 120 extends, by reference to Art. 65, the customary obligation of cooperation in Arts. 64 and 118 to the conservation and management 1

Donald R. Rothwell/Tim Stephens, The International Law of the Sea (2010), 308. Patricia W. Birnie, Marine Mammals: Exploiting the Ambiguities of Art. 65 of the Convention on the Law of the Sea and Related Provisions – Practice under the International Convention for the Regulation of Whaling, in: David Freestone/Richard Barnes/David M. Ong (eds.), The Law of the Sea: Progress and Prospects (2006), 264– 280. 3 Kristin Kaschner/Derek P. Tittensor/Jonathan Ready/Tim Gerrodette/Boris Worm, Current and Future Patterns of Global Marine Mammal Biodiversity, PLoS ONE 6 (2011), e19653. 4 Simon Lyster, International Wildlife Law (1985), 17. 2

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of marine mammals in the high seas and, in particular in the case of cetaceans, institutionalises that duty by requiring cooperation through appropriate international organisations. 3 Like its counter-part Art. 65, Art. 120 is an attempt to ensure the issue of over-exploitation of marine mammals in the high seas is adequately addressed by States and competent international organizations.5

II. Historical Background Marine mammals, in particular whales and seals, have been hunted throughout much of human history as a source of food, oil, and building and artistic materials. Indeed, apart from fishing, their exploitation is one of the oldest forms of commercial exploitation of wildlife. By the early 1900s, however, many populations had been so overharvested that they were on the verge of extinction.6 5 The earliest attempts to devise international legal rules to regulate the exploitation of marine mammals on the high seas focused on seals. The 1893 Bering Fur Seals Arbitration 7 arose out of the seizure, trial and sentencing, by the United States, of British schooners harvesting fur seals on the high seas off the Alaskan coast. The United States claimed a property right in the fur seals due to their presence, while pupping, on United States territory and the right to protect them on the high seas in the interests of conservation. The British rejected the notion of any property rights in the seals and relied on the long recognised freedom to utilise the resources of the high seas to argue that any conservation measures had to be taken by agreement between the States concerned. The Tribunal dismissed the United States contentions, agreeing with the British that conservation measures relating to high seas resources must be adopted by agreement among States.8 It then proceeded to set out a number of regulations to be followed by the parties for the protection and preservation of fur seals in areas beyond national jurisdiction.9 These regulations were subsequently adopted by the parties bilaterally. The 1911 Treaty for the Preservation and Protection of Fur Seals, 10 adopted by Great Britain, Japan, Russia and the United States, expanded the cooperative quota arrangements and added a ban on all pelagic sealing in the North Pacific. The 1911 treaty was replaced in 1957 by the Interim Convention on the Conservation of North Pacific Fur Seals11 which retained the abstention principle, banning all pelagic sealing, except for a limited amount for scientific purposes and traditional aboriginal hunts. The Interim Convention was amended and extended a number of times12 but, given the extension of coastal State jurisdiction, eventually came to an end in 1988. Although it was estimated that up to 85 % of North Pacific fur seals pass through the high seas during all or part of their life cycle, the costs involved in a resumption of high seas pelagic sealing were considered prohibitive and further regulation thus unnecessary. 13 4

5

See Harrison/Morgera on Art. 65 MN 2. Lyster (note 4), 39. 7 Award between the United States and the United Kingdom, Relating to the Rights of Jurisdiction of United States in the Bering’s Sea and the Preservation of Fur Seals (United States v. United Kingdom), Decision of 15 August 1893, RIAA XXVIII, 263. 8 Ibid., 269. 9 Ibid., 270–271. 10 Convention between US, Great Britain, Russia and Japan for the Preservation and Protection of Fur Seals and Sea Otters in the North Pacific Ocean, 7 July 1911, USTS No. 564. 11 Interim Convention between the US, Canada, Japan and the USSR on Conservation of North Pacific Fur Seals, 9 February 1957, UNTS 314, 105. 12 The Interim Convention on North Pacific Fur Seals was amended and extended in 1963 by the Protocol Amending the Interim Convention between the US, Canada, Japan, and the USSR on Conservation of North Pacific Fur Seals, 8 October 1963, 494 UNTS 303; 1969, and the Exchange of Notes Constituting an Agreement to Continue in Force the Interim Convention on Conservation of North Pacific Fur Seals, 3 September 1969, UNTS 719, 313; 1976, and TIAS 8368, and again in 1980, 1984 and 1988. It is now discontinued. 13 Lyster (note 4), 54. 6

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In the North Atlantic, two bilateral agreements sought to regulate the conservation and 6 exploitation of seals. The 1957 Agreement on Measures to Regulate Sealing and to Protect Seal Stocks in the Northeastern Part of the Atlantic Ocean 14 between the USSR and Norway was aimed at achieving optimum productivity of seal and walrus stocks in order to maintain maximum sustained catch while the 1971 Agreement between Canada and Norway on Sealing and the Conservation of Seal Stocks in the Northwest Atlantic15 was aimed at developing and maintaining the ‘most effective conservation measures in order to secure the best possible protection of the seal stocks in this area and a rational utilisation of these resources’. 16 The extension of coastal State jurisdiction together with declines in seal harvesting due to consumer and other objections similarly changed the character and applicability of these agreements. 17 More germane in the high seas context was the situation regarding sealing in the Antarctic 7 where seal stocks had been so heavily over-exploited in the 19th and early 20th centuries that the industry had collapsed. In 1964, an exploratory Norwegian commercial sealing operation raised fears of a new era of uncontrolled sealing in the Antarctic, prompting the parties to the 1959 Antarctic Treaty18 to commence negotiations which ultimately resulted in the adoption of the 1972 Convention for the Conservation of Antarctic Seals (CCAS). 19 The Convention is aimed at ensuring both the rational use of Antarctic seals and their protection. It prohibits pelagic sealing except in limited numbers for research purposes and established closed seasons, sealing zones and sealing reserves. According to LYSTER, the Convention ‘is noteworthy as the first international conservation agreement to have been concluded prior to any significant commercial exploitation of the resource it is intended to protect’. 20 Whales, too, have been exploited for centuries and by the early 20th century their over- 8 exploitation was becoming a matter of international concern with some species on the brink of extinction. According to BIRNIE, although the problems and solutions were already identified in the 19th century, the precedent set by the Bering Fur Seals Arbitration severely curtailed international efforts to regulate whaling.21 During the 1920s, the International Council for the Exploration of the Sea (ICES) became increasingly concerned at the perilous state of global whales stocks calling, in 1929, for States interested in whaling to ‘as a matter of urgency give serious consideration to the question of taking immediately temporary measures for dealing with the situation’22 including measures relating to: utilization of carcasses; prohibitions on killing certain species; protections for cows, calves and immature whales; area closures; restrictions on catches in the Antarctic; and regulations making payments to crews independent of the number of whales taken. These recommendations were taken up by the 1930 League of Nations’ Conference on the Rational Exploitation of the Sea’s Resources and its sub-committee on the Exploitation of the Products of the Sea23 resulting, ultimately in the adoption of the 1931 International Convention for the Regulation of Whaling. 24 The Convention prohibited commercial exploitation of two particularly depleted species – right 14 Agreement between the Government of Norway and the Government of the USSR on Measures Regulating the Catch and Conserving Stocks of Seals in the Northeastern Part of the Atlantic Ocean, 22 November 1957, UNTS 309, 269. 15 Agreement between Canada and Norway on Sealing and the Conservation of Seal Stocks in the Northwest Atlantic, 15 July 1971, CTS 1971 No. 49. 16 Preamble Agreement between Canada and Norway on Sealing and the Conservation of Seal Stocks in the Northwest Atlantic. 17 Lyster (note 4), 53. 18 Antarctic Treaty, 1 December 1959, UNTS 402, 71. 19 Convention for the Conservation of Antarctic Seals, 1 June 1972, ILM 11 (1992), 251; TIAS no 8826; UKTS No. 45 (1978) Cmd 7209; UST 29, 441. 20 Lyster (note 4), 49. 21 Birnie (note 2), 267. 22 Arthur E. J. Went, Seventy Years Agrowing: A History of the International Council for the Exploration of the Sea 1902–1972 (1972), 78. 23 Leonard L. Leonard, Recent Negotiations Towards the International Regulation of Whaling, AJIL 35 (1941), 90–113. 24 International Convention for the Regulation of Whaling, 24 September 1931, LNTS 155, 349.

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whales and bowhead whales – and included provisions requiring full use of carcasses, prohibitions on killing of cows, claves and immature whales, but otherwise did not restrict take. Two protocols were adopted during the 1930s prohibiting the take of whales under a certain size, setting closed seasons in the Antarctic and requiring onboard inspectors on factory ships.25 However, neither the Convention nor its protocols received wide support. 9 These agreements were eventually superseded by the 1946 International Convention for the Regulation of Whaling (ICRW).26 The preamble of the Convention recognizes the need, based on historical conduct, to protect whales from over-harvesting and articulates the desire of the parties to ‘establish a system of international regulation for the whale fisheries to ensure proper and effective conservation and development of whale stocks’ in order to provide for their proper conservation and ‘thus make possible the orderly development of the whaling industry’. The Convention applies to all waters in which whaling is carried out, including the high seas and areas under national jurisdiction. Despite the establishment of the International Whaling Commission (IWC), over-exploitation of whales continued and ultimately resulted in the adoption, in 1982, of a moratorium on commercial whaling with effect from 1986. The moratorium is still in place although exemptions exist for aboriginal/ subsistence whaling and whaling for scientific purposes.27 10 In this context of not inconsiderable pre-existing work and the realization of the poor conservation status of marine mammals,28 the issue of their conservation and management was discussed at UNCLOS III in the context of the discussions relating to highly migratory species that eventually resulted in the adoption of Arts. 64 and 65. 29 No specific proposals were discussed with respect to marine mammals in the high seas. Rather, the origin of Art. 120 was extrapolated from the obligation to manage highly migratory species both within and beyond the EEZ which links both Art. 64 and Art. 65 with Arts. 116–120. What is now Art. 120 was initially included in the Main Trends Working Paper in 197430 and appeared in during the Third Session in 1975.31 With the exception of its renumbering no substantive changes were made to the final article as adopted.

III. Elements 1. ‘Article 65 also applies’ 11

Reading Art. 65 and Art. 120 together makes clear that nothing in Part VII, Section 2 restricts the right of States or competent international organisations to take stricter measures than are provided for elsewhere in Arts. 116–119 for the conservation and management of marine mammals in the high seas. States are to cooperate with a view to the conservation of marine mammals in the high seas and in the case of cetaceans they shall in particular work through the appropriate international organisations for their conservation, management and study. Thus, States are not required to allow exploitation of marine mammals in the high seas but may by agreement confer upon an international organisation the competence to 25 International Agreement for the Regulation of Whaling, 8 June 1937, LNTS 190, 79 and the Protocol Amending the International Agreement of 8 June 1937 for the Regulation of Whaling, 30 December 1938, LNTS 196, 131. 26 International Convention for the Regulation of Whaling, 2 December 1946, UNTS 161, 72, as amended 19 November 1956, UNTS 338, 336. 27 Schedule, para. 10(e) Whaling Convention. 28 James E. Scarff, The International Management of Whales, Dolphins and Porpoises: An Interdisciplinary Assessment, Ecology Law Quarterly 6 (1977), 343–373. 29 See Harrison/Morgera on Art. 65. 30 UNCLOS III, Statement of Activities of the Conference during its First and Second Sessions, UN Doc. A/ CONF.62/L.8/REV.1 (1974), OR III, 93, 107,132 (Provision 163, incorporating Provision 113). 31 UNCLOS III, Informal Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/PART II (1975), OR IV, 152, 167 (Art. 107).

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‘prohibit, limit or regulate’ their exploitation in terms that are stricter than those required under other provisions of Part VII, Section 2, in particular, Arts. 118 and 119.

2. ‘Marine mammals in the high seas’ Although all marine mammals are covered by Art. 120, those most relevant in the high seas context are cetaceans and seals. Pelagic high seas sealing is largely a thing of the past, although given the absence of an international agreement covering the North Pacific the possibility of future pelagic high seas hunting of North Pacific fur seals, though remote, cannot be ruled out. Sealing in the Antarctic is similarly non-existent but would, in any event, be regulated under the CCAS. Thus, most relevant in the high seas context are cetaceans, the ‘conservation, management and study’ of which, by virtue of Art. 65, is to be cooperatively pursued by States working together through ‘appropriate international organisations’. With respect to whales, the IWC is currently the only organisation with global competence to regulate whaling. While debate persists as to the exclusivity of the IWC’s managerial mandate, its ‘competitor’ organisation, the North Atlantic Marine Mammal Commission (NAMMCO), lacks managerial competence. Rather, NAMMCO focuses on data collection, scientific research, research on hunting methods and advice to member States. According to BIRNIE, BOYLE & REDGWELL, the NAMMCO Convention has been ‘carefully drafted to avoid conflict with the ICRW’.32 Debate similarly persists over whether the IWC’s mandate covers all cetaceans. Agreement on the inclusion of small cetaceans under the IWCs mandate has never been achieved, although increasingly their status and recommendations for their conservation are being discussed in the Scientific Committee. Nevertheless, in practice, the IWC has focused its attention on the twelve large whale species traditionally subject to commercial exploitation.33 Initially established to promote the continued exploitation of whales, the IWC’s failure to prevent the continuing decline of whale stocks has led to the emergence of a strong conservationist block within its membership. In 1979 the IWC declared an Indian Ocean Whale Sanctuary in which commercial whaling is prohibited followed, in 1982, by the imposition of a global whaling moratorium which took effect from 1985. The moratorium was affected by amendment to the Schedule to the ICRW which, by virtue of Art. 1 (1) ICRW forms an ‘integral part’ of the Convention. It is therefore binding on the parties to the ICRW. Adoption of the moratorium triggered objections from Japan, Norway, Peru and the Soviet Union although those of Japan and the Soviet Union were subsequently withdrawn. Adoption of the moratorium also resulted in Canada and, in 1992, Iceland withdrawing from the IWC entirely, although Iceland subsequently rejoined the IWC in 2002 at which time it lodged a reservation to the moratorium. Both Iceland and Norway have continued to engage in commercial whaling. The IWC moratorium on whaling does not extend to aboriginal subsistence whaling or to ‘special permit’ whaling under Art. VIII ICRW which allows whaling ‘for the purposes of scientific research’. This exception has been relied on extensively by Japan as supporting its scientific whaling programs in the North Pacific and Southern Oceans. The question of what constitutes whaling ‘for the purposes of scientific research’ was considered by the International Court of Justice in the Antarctic Whaling Case (Australia v. Japan: New Zealand intervening), where the Court concluded that the grant of permits and the killing, taking and treating of whales under Japan’s Southern Ocean whaling program (JARPA II) could not be justified as being for the purposes of scientific research under Article VIII of the ICRW. 34 In order to meet the criteria of ‘for the purposes of scientific research’ the Court held that the 32

Particia Birnie/Alan Boyle/Catherine Redgewell, International Law and the Environment (2009), 724. Ibid., 725. 34 ICJ, Whaling in the Antarctic (Australia v. Japan; New Zealand intervening), Judgment of 31 March 2014, para. 227, available at: http://www.icj-cij.org/docket/files/148/18136.pdf. 33

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design and implementation of the program must be reasonable in relation the stated scientific objectives.35 Factors relevant to the determination of reasonableness included: decisions regarding the use of legal methods; the scale of the program’s use of lethal sampling; the methodology used to select sample sizes; a comparison of the target sample sizes and the actual take; the timeframe associated with the program; the program’s scientific output; and the degree to which a program coordinates its activities with related research projects.36 While the lethal methods used by Japan were not, per se, unreasonable, based on its review of these and other factors, the Court considered the design and implementation of the program to be unreasonable in achieving its overall stated objectives. 37 16 Foreshadowing the possibility of an end to the moratorium, agreement was reached in 1994 on the adoption of a Revised Management Procedure (RMP) which provides a method of calculating sustainable catch limits and will therefore allow the resumption of commercial whaling.38 However, it was agreed at the time that the RMP will not be implemented until a Revised Management Scheme (RMS) incorporating an effective observer scheme and catch reporting methods has been incorporated into the Schedule to the Convention. Ongoing tension between the conservationist and exploitation camps within the IWC, the numbers of which are fairly evenly balanced, has effectively stymied any attempts to achieve consensus on the adoption of these amendments and has led to managerial deadlock within the Commission. The work of the Small Working Group on the Future of the IWC and its ‘Proposed Consensus Decision to Improve the Conservation of Whales’, presented in 2010, has thus far met a similar fate. In the meantime, other attempts have been made to protect whales by listing them on the appendices to the Convention on International Trade in Endangered Species (CITES) and the Convention on the Conservation of Migratory Species (CMS).39 17 With respect to small cetaceans occurring in the high seas, the IWC’s conservatory failures have led to the adoption and/or application of numerous other agreements including CITES, the CMS, the Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean and Contiguous Atlantic Area (ACCOBAMS), and the Agreement on the International Dolphin Conservation Program (AIDCP).40 Also relevant are the Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific together with its Protocols and the global moratorium on high seas large scale pelagic driftnet fishing adopted by the UN General Assembly in 1991,41 a significant impetus for both of which were concerns over damage to the environment and non-target species, including marine mammals caused by this indiscriminate fishing method.42 While the legal status of the moratorium has been the subject of debate, 43 its

35

Ibid., para. 68. Ibid., para. 88. Ibid., para. 227. 38 IWC Resolution 1994–5 on the Revised Management Scheme (1994). 39 Alexander Gillespie, Whaling Diplomacy: Defining Issues in International Environmental Law (2005). See also Harrison/Morgera on Art. 65 MN 15 and 17. 40 See Harrison/Morgera on Art. 65 MN 15–18. 41 GA Res. 46/215 of 20 December 1991, adopted without a vote. The moratorium has been in force since 31 December 1992. 42 FAO, Report of the Expert Consultation on Large Scale Pelagic Driftnet Fishing, FAO Fisheries Report No. 434 – FIPL/R434 (1990); FAO, Large-Scale Pelagic Driftnet Fishing, FAO Doc. COFI/91/5 (1991) and Suppl.1 (1991); Simon P. Northridge, Driftnet Fisheries and Their Impacts on Non-Target Species: A Worldwide Review, FAO Fisheries Technical Paper 320 (1991). For academic commentary see, e. g., Natalia S. Mirovitskaya/J. Christopher Haney, Fisheries Exploitation as a Threat to Environmental Security: The North Pacific Ocean, Marine Policy 16(4) (1992), 243–258; Andrew Wright/David J. Doulman, Drift-net Fishing in the South Pacific: From Controversy to Management, Marine Policy 15(5) (1991), 303–337; Ivan Shearer, High Seas: Drift Gillnets, Highly Migratory Species and Marine Mammals, Law of the Sea Institute Proceedings 24 (1992), 237–258. 43 William T. Burke/Mark Freeberg/Edward L. Miles, United Nations Resolution on Driftnet Fishing: An Unsustainable Precedent for High Seas and Coastal Fisheries Management, ODIL 25 (1994), 127–186. See also, Ellen Hey et al., The Regulation of Driftnet Fishing on the High Sea: Legal Issues, FAO Legislative Study 47 (1991); Grant J. Hewison, High Seas Driftnet Fishing in the South Pacific and the Law of the Sea, GIELR 5(2) (1993), 313–374. 36 37

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continued invocation by the General Assembly and in the practice of States would seem to confirm its existence as a binding rule of customary international law.44 In conclusion, Art. 120 succinctly extends the application of Article 65 to the high seas. 18 However, as BIRNIE notes, it ‘does not remove marine mammals from the scope of the remaining freedoms of the high seas’,45 which include the freedom of scientific research in Arts. 238–265. Neither does it in any way clarify any of the existing ambiguities in Art. 65.46 Resolution of these issues thus remains dependent on their debate in the IWC and other international fora interested in or concerned with the conservation and management of marine mammals.

44 Grant J. Hewison, The Legally Binding Nature of the Moratorium on Large-Scale High Seas Driftnet Fishing, JMLC 25 (1994), 557–579. 45 Birnie (note 2), 263. 46 See Harrison/Morgera on Art. 65 MN 7.

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PART VIII REGIME OF ISLANDS Article 121 Regime of islands 1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide. 2. 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. 3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf. Bibliography: Derek W. Bowett, Islands, Rocks, Reefs and Low-Tide Elevations in Maritime Boundary Delimitations, in: Jonathan I. Charney/Lewis M. Alexander (eds.), International Maritime Boundaries, vol. I (1991), 131–151; Derek W. Bowett, The Legal Regime of Islands in International Law (1979); Jonathan I. Charney, Rocks that Cannot Sustain Human Habitation, AJIL 93 (1999), 863–877; Alex G. Oude Elferink, Clarifying Article 121(3) of the Law of the Sea Convention: The Limits Set by the Nature of International Legal Processes, IBRU Boundary and Security Bulletin (Summer 1998), 58–68; Erik Franckx, The Regime of Islands and Rocks, in: Malgosia Fitzmaurice/Norman A. Martı´nez Gutie´rrez (eds.), The IMLI Manual on International Maritime Law, vol. I (2014), 99–124; Gilbert Gidel, Le droit international public de la mer, tome III: La mer territoriale et la zone contigue¨ (1934); Mahon Hayes, The Law of the Sea: The Role of the Irish Delegation at the Third UN Conference (2011); Robert Jennings and Arthur Watts (eds.), Oppenheim’s International Law, vol. I: Peace (9th edn. 1992); Philip C. Jessup, The Law of Territorial Waters and Maritime Jurisdiction (1927); Robert Kolb, L’interpre´tation de l’article 121, paragraphe 3, de la convention de Montego Bay sur le droit de la mer: les ‘rochers qui ne se preˆtent pas a` l’habitation humaine ou a` une vie e´conomique propre…’, AFDI 40 (1994), 876–909; Sophia Kopela, Dependent Archipelagos in the Law of the Sea (2013); Barbara Kwiatkowska/ Alfred H. A. Soons, Entitlement to Maritime Areas of Rocks Which Cannot Sustain Human Habitation or Economic Life of Their Own, Netherlands YIL 21 (1990), 139–181; Fritz Mu¨nch, Die technischen Fragen des Ku¨stenmeers (1934); Myron H. Nordquist, Textual Interpretation of Article 121 in the UN Convention on the Law of the Sea, in: Holger Hestermeyer/Doris Ko¨nig/Nele Matz-Lu¨ck/Volker Ro¨ben/Anja Seibert-Fohr/PeterTobias Stoll/Silja Vo¨neky (eds.), Coexistence, Cooperation and Solidarity: Liber Amicorum Ru¨diger Wolfrum (2012), 991–1035; Myron N. Nordquist/Sataya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995); Daniel P. O’Connell, The International Law of the Sea, vol. I (1982); Donat Pharand, The Legal Status of the Arctic Regions, RdC 163 (1979-II), 49–116; W. Michael Reisman/Gayl S. Westerman, Straight Baselines in International Maritime Boundary Delimitation (1992); Joshua L. Root, Castles in the Sand: Engineering Insular Formations to Gain Legal Rights over the Oceans, Chinese (Taiwan) Yearbook of International Law and Affairs 32 (2014), 58–85; Aaron L. Shalowitz, Shore and Sea Boundaries: With Special Reference to the Interpretation and Use of Coast and Geodetic Survey Data, vol. I (1962); C. K. Shum et al., Accuracy Assessment of Recent Ocean Tide Models, Journal of Geophysical Research 102 (1997), 25, 173-25, 194; Gordon W. Smith, Ice Islands in Arctic Waters, in: Adam Lajeunesse (ed.), Ice Islands in Canadian Policy, 1954–1971, Documents on Canadian Arctic Sovereignty and Security, vol. 5 (2015), 1–94; Clive R. Symmons, Some Problems Relating to the Definition of ‘Insular Formations’ in International Law: Islands and Low-Tide Elevations, in: Clive Schofield/Peter Hocknell (eds.), Maritime Briefing, vol. I (1995); Yoshifumi Tanaka, The International Law of the Sea (2nd edn. 2015); Jon M. Van Dyke/Robert A. Brooks, Uninhabited Islands: Their Impact on the Ownerships of the Ocean’s Resources, ODIL 12 (1983), 265–300 Documents: GA, Law of the Sea: Report of the Secretary-General: Progress Made in the Implementation of the Comprehensive Regime Embodied in the United Nations Convention on the Law of the Sea, UN Doc. A/47/512 (1992); Harvard Law School, Research in International Law, Draft Convention on Territorial Waters and Comments, AJIL Special Supplement, 23 (1929), 241–380; Memorandum No. BA 1271/2, dated 7 October 1959, from the Foreign Office to the Political Resident, Bahrain, reproduced in: Richard Schofield (ed.), Islands and Maritime Boundaries of the Gulf, vol. 18 (1958–1960) (1990), 305–307; UN DOALOS, The Law of the Sea: Re´gime of Islands – Legislative History of Part VIII (Article 121) of the United Nations Convention on the Law of the Sea (1988)

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Cases: Conciliation Commission on the Continental Shelf Area between Iceland and Jan Mayen, Report and Recommendations to the Governments of Iceland and Norway, May 1981, ILM 20 (1981), 797; Ex parte Marincovich, Judgment of 10 July 1920, 192 P. 156 (Cal.App. 2 Dist. 1920) (USA); ICJ, International Status of South West Africa, Advisory Opinion, ICJ Reports (1950), 128; ICJ, Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain), Merits, Judgment, ICJ Reports (2001), 40; ICJ, Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), Judgment, ICJ Reports (1993), 38; ICJ, Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, ICJ Reports (2009), 61; ICJ, Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, ICJ Reports (2012), 624; ITLOS, The ‘Monte Confurco’ Case (Seychelles v. France), Prompt Release, Judgment of 18 December 2000, ITLOS Reports (2000), 86; ITLOS, The ‘Volga’ Case (Russian Federation v. Australia), Prompt Release, Judgment of 23 December 2002, ITLOS Reports (2002), 10; Middleton v. United States, Judgment of 23 April 1929, 32 F.2 d 239, 240 (C.C.A. 5th, 1929) (USA); PCA, South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China), Award of 12 July 2016, available at: https://www.pcacases.com/web/view/7; PCA, South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China), Award on Jurisdiction and Admissibility of 29 October 2015, available at: https://www.pcacases.com/web/view/7; Public Prosecutor v. Haraldsson and Others, Judgment of 7 May 1996, 140 ILR 559 (Norway); The Anna, High Court of Admiralty of England (6, 15 and 20 November 1805), Reports of Cases argued and determined in the High Court of Admiralty commencing with the Judgments of the Right Hon. Sir William Scott, Michaelmas Term, 1798, ed. by Christopher Robinson, 1799– 1808, Vol. V (1806), 373, 385c; United States v. Marshalls, Decision of 8 May 2008, 2008 U.S. Dist. LEXIS 38627 (USA); United States v. Alaska, Judgment of 19 June 1997, 521 U.S. 1 (1997) (USA) Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘island’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘area of land’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘naturally formed’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. ‘surrounded by water’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. ‘above water at high tide’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. ‘Rocks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. ‘cannot’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8. ‘sustain’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9. ‘human habitation’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10. ‘economic life of their own’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11. ‘or’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12. ‘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 according to other land territory’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13. ‘Except as provided for in paragraph 3’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 4 7 7 10 14 18 19 27 35 37 40 47 52 53 56

I. Purpose and Function Consisting of its own Part VIII of the Convention, the ‘Regime of Islands’ in Art. 121 1 contains the legal definition of the term ‘island’, the general rule that islands are to be treated as any other land territory for the purpose of determining their maritime entitlements, and an exception to that rule with regard to ‘rocks which cannot sustain human habitation or economic life of their own’. Art. 121 is only concerned with individual islands and not with groups of islands or archipelagos.1 The provision deals only with the entitlement of islands to maritime zones; it does not deal with the question of delimiting the zones generated by islands in case of overlapping entitlements.2 The regime of islands also has nothing to say about the acquisition of sovereignty over insular land territory, a question that is governed by general international law. With literally hundreds of thousands of islands, the practical importance of the provision 2 can hardly be exaggerated. Islands can give States sovereignty, sovereign rights and jurisdiction over millions of square kilometres of ocean space. According to Art. 121, even the smallest of 1 2

For archipelagos, see Markus on Art. 46 MN 31 et seq. This question is dealt with in Arts. 15, 74 and 83.

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islands is entitled to a territorial sea of up to 12 NM (22.22 km). A rock of the size of a few square centimetres can thus generate 1.551 km2 of territorial sea. That is the same area of territorial sea as is generated by some 69.8 km of straight coastline. A small proper island, on the other hand, is entitled not just to a territorial sea but also to an exclusive economic zone (EEZ) and a continental shelf of at least some 431,000 km2. The sea area that can be claimed on the basis of a proper island is thus 278 times bigger than the area that can be claimed on the basis of a rock. For example, Nauru, the smallest island State in the world with a land territory of 21 km2 (and thus the 194th country in terms of land area) generates EEZ and continental shelf entitlements consistent with the Convention of 431,000 km2. Nauru’s sea area thus almost equals the land area of Finland, the world’s 65th largest State. 3 At UNCLOS III the recognition of extensive EEZ and continental shelf entitlements met the long-established principles that islands, regardless of their size, enjoy the same status, and that islands generate the same maritime rights as other land territory. If all islands had given their owners the right to claim an 200 NM EEZ and continental shelf this would have led to an unprecedented encroachment of coastal State jurisdiction over areas of ocean space formerly open to all. This would have severely impacted on the new principle of the Area and its resources being the common heritage of mankind. In addition, EEZ and continental shelf claims based on islands would have led to countless new maritime delimitation disputes. The purpose of Art. 121 (3), restricting the maritime entitlements of certain rock islands, was to mitigate some of these effects and to contribute to a more equitable distribution of the resources of the sea.

II. Historical Background The definition of the term ‘island’ has changed considerably over time. For example, up to the 1950s several States defined an island as a ‘naturally formed part of the earth’s surface, projecting above the level of the sea at low tide’, thus including low-tide elevations in the term ‘island’.3 Others required the area of land to be ‘capable of effective occupation and use’.4 Some even treated ‘artificial islands’ as ‘islands’.5 The present definition of the term ‘island’ which is now contained in of Art. 121 (1) was arrived at only at UNCLOS I in 1958.6 5 The genesis of Art. 121 (2) and (3) is inextricably linked with the expansion of coastal State jurisdiction through the EEZ and the continental shelf. The question of the maritime entitlements of islands was first discussed in the Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction (‘Sea-Bed Committee’) which was working on a draft declaration of legal principles governing the sea-bed and the ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction. On 18 March 1969, Malta submitted a draft declaration which recommended that ‘rocks and islands without a permanent settled population’ should be disregarded when determining the coastal States’ right to exercise sovereign rights over the resources adjacent to their coasts. 7 Several States immediately objected.8 The battle lines for the coming years were drawn. Matters were further complicated when at UNCLOS III questions of delimitation of the 4

3 See e. g. League of Nations, Conference for the Codification of International Law, Bases of Discussion, Volume II – Territorial Waters, C.74.M.39.1929.V [C.74.M.68.1929.V.2], Geneva, 15 May 1929, 52–53. 4 Ibid., 53. 5 Ibid., 52. 6 Art. 10 (1) Convention on the Territorial Sea and the Contiguous Zone. 7 Sea-Bed Committee, Representative of Malta: Statement in the Legal Sub-Committee, UN Doc. A/AC.138/11 (1969, mimeo.), 2. See also Seabed Committee, Legal Sub-Committee 7th Meeting, UN Doc. A/AC.138/SC.1/SR.111 (1969), 66 (Malta). 8 See Sea-Bed Committee, Legal Sub-Committee 8th Meeting, UN Doc. A/AC.138/SC.1/SR.1-11 (1969), 78 (Norway); Sea-Bed Committee, Legal Sub-Committee 10th Meeting, UN Doc. A/AC.138/SC.1/SR.1-11 (1969), 110 (United Kingdom); ibid., 112 (Japan).

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maritime zones of islands close to the coast of another State entered the picture. The various provisions taken by States are well documented.9 However, the text of Art. 121 (2) and (3) emerged from informal consultations during the Third Session of UNCLOS III in 1975 for which there are no official records and only few informal documents. 10 The present text of the provision appeared first on the 9th of May 1975 as Art. 132 of the Informal Single Negotiating Text (ISNT).11 During the Fourth Session of UNCLOS III in 1976 several amendments were suggested which commanded strong, but not majority, support. The provision was therefore retained without change in Art. 128 of the Revised Single Negotiating Text.12 During the remainder of the conference several attempts were made, on the one hand, to limit the maritime entitlements of islands even further and, on the other, to remove any restriction of islands by deleting paragraph 3 altogether. None was successful and the provision became Art. 121 of the final text of the Convention. Art. 121 was regarded as including ‘a certain progressive development’ of the rules of the 6 1958 Geneva Conventions on the Law of the Sea.13 In 1992, the UN Secretary-General wrote in a Report that ‘Article 121(3), regarding rocks, has not had a great impact upon the practice of States. Existing claims to 200-mile zones made before the adoption of the Convention have, in the main, not been withdrawn. New claims since 1982 to 200-mile zones measured from small features, which may be described as rocks, have generated protests in some cases. As the result, the practice of States displays unevenness.’14

This has not prevented international courts and tribunals from declaring all three paragraphs of Art. 121 and not just the well-established definition of the term ‘island’ in paragraph 115 to be reflective of customary international law.16 In light of the ambiguity of the language of Art. 121 (3) and conflicting State practice the customary international law nature of paragraph 3 has been rightly called into question.17 Even if Art. 121 (3) were reflective of customary international law, a good case could be made that several non-parties to the Convention, such as Turkey and Venezuela, may be considered persistent objectors to that provision.

9 See UN DOALOS, The Law of the Sea: Re ´gime of Islands – Legislative History of Part VIII (Article 121) of the United Nations Convention on the Law of the Sea (1988). See also Myron N. Nordquist/Sataya N. Nandan/ Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995), 324–339. 10 The latter can be found in Renate Platzo ¨ der (ed.), Third United Nations Conference on the Law of the Sea: Documents, vol. IV (1983), 221–222. 11 UNCLOS III, Informal Single Negotiating Text, Part II, UN Doc. A/CONF.62/WP.8/PART II (1975), OR IV, 152, 170–171. 12 UNCLOS III, Revised Single Negotiating Text, Part II, UN Doc. A/CONF.62/WP.8/REV.1/PART II (1976), OR V, 151, 172. 13 See German Bundestag, Memorandum on the UN Convention on the Law of the Sea and the Implementation Agreement, BT-Drucksache 12/7829, 10 June 1994, 249. 14 GA, Law of the Sea: Report of the Secretary-General: Progress Made in the Implementation of the Comprehensive Regime Embodied in the United Nations Convention on the Law of the Sea, UN Doc. A/47/ 512 (1992), 12 (para. 46). 15 On the customary international law status of the definition of ‘island’ in Art. 121 (1), see e. g. ICJ, Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, ICJ Reports (2012), 624, 645 (para. 37). 16 ICJ, Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain), Merits, Judgment, ICJ Reports (2001), 40, 97 (para. 185: on Art. 121 (2)); Territorial and Maritime Dispute (note 15), 673 (para. 138), and 674 (para. 139): ‘Article 121 forms an indivisible re´gime, all of which […] has the status of customary international law’. See also Conciliation Commission on the Continental Shelf Area between Iceland and Jan Mayen, Report and Recommendations to the Governments of Iceland and Norway, May 1981, ILM 20 (1981), 797, 803. 17 See Yoshifumi Tanaka, The International Law of the Sea (2nd edn. 2015), 68–69.

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III. Elements 1. ‘island’ Art. 121 has not been the subject of in-depth consideration and analysis by international courts and tribunals. Its provisions have been accorded a wide range of different interpretations in scholarly writings.18 The Award of 12 July 2016 of the Arbitral Tribunal constituted under Annex VII UNCLOS in the South China Sea Arbitration (‘SCS Arbitration’) has thus automatically become the leading (because only) case on the interpretation of Art. 121.19 The Award, however, is not without controversy and some caution must be exercised when applying its findings. 8 Art. 121 distinguishes between ‘island’ (used in paragraphs 1 and 2) and ‘rocks’ (used in paragraph 3). Art. 121 (1) defines the term ‘island’ as a ‘naturally formed area of land, surrounded by water, which is above water at high tide.’ The name of a feature has no bearing on whether it qualifies as an ‘island’ or a ‘rock’ for purposes of Art. 121. 20 Rocks and islands, but not low-tide elevations, qualify as ‘insular land territory’ in terms of Art. 298 (1)(a)(i). The latter constitute land territory but do not meet the requirement of islands of being above water at high tide. 9 Rocks or ‘rock islands’ are a subset of the category ‘island’ and as such must also satisfy the geographical criteria set out in Art. 121(1). The term ‘rock island’ (‘Felseninsel’) was introduced in the Norwegian Law of 14 July 1822 which extended Norway’s customs boundary to 10 NM measured from ‘islands and rock islands’ (‘øer og holmer’) which are not constantly submerged.21 Whenever UNCLOS uses the term ‘island’ this includes ‘rocks’. For example, where there is a fringe of ‘rocks’ along the coast in its immediate vicinity, the method of straight baselines may be employed (Art. 7 (1)).22 7

2. ‘area of land’ 10

An island is defined as an ‘area of land’, irrespective of its geological or geomorphological composition.23 Islands may be formed by rock, sand, mud, gravel, sediment, madrepore or 18 See e. g. Jon M. Van Dyke/Robert A. Brooks, Uninhabited Islands: Their Impact on the Ownerships of the Ocean’s Resources, ODIL 12 (1983), 265–300; Barbara Kwiatkowska/Alfred H. A. Soons, Entitlement to Maritime Areas of Rocks which Cannot Sustain Human Habitation or Economic Life of Their Own, Netherlands YIL, 21 (1990), 139–181; Robert Kolb, L’interpre´tation de l’article 121, paragraphe 3, de la convention de Montego Bay sur le droit de la mer: les ‘rochers qui ne se preˆtent pas a` l’habitation humaine ou a` une vie e´conomique propre…’, AFDI 40 (1994), 876–909; Alex G. Oude Elferink, Clarifying Article 121(3) of the Law of the Sea Convention: The Limits Set by the Nature of International Legal Processes, IBRU Boundary and Security Bulletin (Summer 1998), 58–68; Jonathan I. Charney, Rocks that Cannot Sustain Human Habitation, AJIL 93 (1999), 863–877; Myron H. Nordquist, Textual Interpretation of Article 121 in the UN Convention on the Law of the Sea, in: Holger Hestermeyer et al. (eds.), Coexistence, Cooperation and Solidarity: Liber Amicorum Rüdiger Wolfrum (2012), 991–1035; Erik Franckx, The Regime of Islands and Rocks, in: Malgosia Fitzmaurice and Norman A. Martínez Gutiérrez (eds.), The IMLI Manual on International Maritime Law, vol. I (2014), 99–124. 19 PCA, South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China) Award of 12 July 2016, available at: https://www.pcacases.com/web/view/7. 20 Ibid., para. 482. 21 League of Nations, Committee of Experts for the Progressive Codification of International Law, Report to the Council of the League of Nations on the Questions which Appear Ripe for International Regulation (Questionnaires Nos. 1 to 7), C.196.M.70.1927.V.1, 20 April 1927, 41. 22 See e. g. Sophia Kopela, Dependent Archipelagos in the Law of the Sea (2013), 57–60. Contra W. Michael Reisman/Gayl S. Westerman, Straight Baselines in International Maritime Boundary Delimitation (1992), 84–86, who require that the islands that constitute the fringe must be able to sustain human habitation or economic life of their own. 23 The Anna, England, High Court of Admiralty of England, 6, 15 and 20 November 1805), Reports of Cases argued and determined in the High Court of Admiralty commencing with the Judgments of the Right Hon. Sir William Scott, Michaelmas Term, 1798, ed. by Christopher Robinson, 1799–1808, Vol. V (1806), 373, 385 c, 385 d; Territorial and Maritime Dispute (note 15), 645 (para. 37); SCS Arbitration Award (note 19), para. 481.

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coral. A feature composed of coral debris qualifies as an island, provided it is composed of solid material, attached to the substrate, and not of loose debris. 24 The questions concerning the texture of the soil and vegetation are equally irrelevant for the island status of an area of land. These questions may, however, be relevant for the question of whether a land feature is capable of sustaining human habitation.25 So-called ‘ice islands’, i. e. ‘large floating masses of distinctive kind of ice, which drift slowly 11 with the wind and water currents’ of the Arctic or Southern Ocean,26 cannot be assimilated to land area, although they may be naturally formed and due to their size and thickness they may be capable of occupation by research expeditions. Depending on whether the ice island is used in a fixed position as a drilling platform or installation, or whether it is used as a floating research station it may legally be treated either as an artificial island or as a ship. 27 International law does not prescribe a minimum size for a land area to qualify as an 12 island.28 There is no such legal category as an ‘islet’ in international law. Even the tiniest fragments of emerged land are legally islands. In practice, even ‘pin-point rocks’ of only several square centimetres have been treated as islands. 29 But the size of an island may be relevant for the question of whether it is capable of sustaining human habitation or economic life of its own.30 The size of an island may also be relevant for purposes of delimitation. 31 The geographic location of an area of land and, in particular, that it is located in ‘a remote 13 area of the world’ such as the Arctic or Southern Ocean, is irrelevant for its status as an island.32 Similarly, the question of habitation does not play any role in the status of a land area.33

3. ‘naturally formed’ The term island initially included both natural and artificial islands. At the Conference for 14 the Codification of International Law, held at The Hague in 1930, Subcommittee II of the Committee on Territorial Waters defined an ‘island’ as ‘an area of land, surrounded by water, which is permanently above high-water mark.’ In the Subcommittee’s accompanying observations it was stated that the ‘definition of the term “island” does not exclude artificial islands, provided these are true portions of the territory and not merely floating works, anchored buoys, etc.’34 During the deliberations of the International Law Commission (ILC) 24 Cf. Territorial and Maritime Dispute (note 15), 645 (para. 37). See also Derek W. Bowett, The Legal Regime of Islands in International Law (1979), 4–5. 25 See infra, MN 38. 26 Gordon W. Smith, Ice Islands in Arctic Waters, in: Adam Lajeunesse (ed.), Ice Islands in Canadian Policy, 1954–1971, Documents on Canadian Arctic Sovereignty and Security, vol. 5 (2015), 1. 27 See Donat Pharand, The Legal Status of the Arctic Regions, RdC 163 (1979-II), 49, 94–100. 28 Maritime Delimitation between Qatar and Bahrain (note 16), 97 (para. 185); SCS Arbitration Award (note 19), 538. This view had already been expressed by Gilbert Gidel, Le droit international public de la mer, tome III: La mer territoriale et la zone contigue¨ (1934), 668. 29 See e. g. Maritime Delimitation between Qatar and Bahrain (note 16), 97 (para. 187); Territorial and Maritime Dispute (note 15), 645 (para. 37), and 699 (para. 202). 30 See infra, MN 36. 31 See e. g. Territorial and Maritime Dispute (note 15), 699 (para. 202); Maritime Delimitation between Qatar and Bahrain (note 16), 104 (para. 219). See, generally, Derek W. Bowett, Islands, Rocks, Reefs and Low-Tide Elevations in Maritime Boundary Delimitations, in: Jonathan I. Charney/Lewis M. Alexander (eds.), International Maritime Boundaries, vol. I (1991), 131–151. 32 Cf. ITLOS, The ‘Volga’Case (Russian Federation v. Australia), Prompt Release, Judgment, ITLOS Reports 2002, 10, 51 (para. 9, sep. op. Cot), and 57 (para. 2, n. 3, diss. op. Anderson); ibid., Verbatim Records, ITLOS/ PV.02/02 (2002), 5, line 45 (Australia); ITLOS, The ‘Monte Confurco’ Case (Seychelles v. France), Prompt Release, Statement in Response of the French Government, 5 December 2000, 14, available at: https://www.itlos.org/cases/list-of-cases/case-no-6/. 33 Middleton v. United States, Circuit Court of Appeals, 5th Circuit, 23 April 1929, 32 F.2 d 239, 240 (C.C.A. 5th, 1929). 34 Report Adopted by the [Second] Committee on April 10th, 1930, Appendix II: Report of the Second SubCommittee, League of Nations, Acts of the Conference for the Codification of International Law, Volume III – Minutes of the Second Committee: Territorial Waters, C.351(b).M.145(b).1930.V.16, 19 August 1930, 209, 219. See also Gidel (note 28), 684.

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on ‘The Regime of the Territorial Sea’, HERSCH LAUTERPACHT suggested in 1954 that the adjective ‘natural’ be inserted before the words ‘area of land’ in the definition of the term ‘island’ in order to exclude artificial islands from having a territorial sea, but his proposal was rejected by five votes to four, with two abstentions.35 The United States, which already in 1929 had suggested limiting the term ‘island’ to ‘any naturally formed part of the earth’s surface’,36 in 1958 made another attempt to exclude ‘artificially placed land’ from the definition of island because its inclusion ‘permits an undesirable means of extension of the territorial sea and consequent encroachment on the freedom of the high seas.’ 37 The US proposal that ‘an area is a naturally-formed area of land’ found its way into Art. 10 (1) of the Convention on the Territorial Sea and the Contiguous Zone.38 15 ‘Man-made islands’, i. e. islands ‘created by man from natural materials, dredged or otherwise transported, to form an area of land surrounded by water which is above water at high tide’,39 do not qualify as ‘islands’ in terms of Art. 121 (1) but are governed by the provisions on ‘artificial islands’.40 The distinction between man-made and natural islands is, however, not always straightforward. While an area of land created by the deposition of sediment through storm or tidal action will usually qualify as a natural island, 41 the question is more difficult to answer if the reason or basis for any natural accretion of sand or rubble is an artificial structure such as a beacon, i. e. if the natural process of land-creation has been triggered, caused or accelerated by artificial means. 42 Any human interference with natural processes should automatically result in the newly emerging area of land being considered an artificial island.43 16 There has been a long history of human effort to preserve and protect existing natural islands against erosion and abrasion by building sea defences. States have also raised existing islands to protect them from storm surges and higher tides.44 The preservation of existing naturally formed islands by artificial means or by human induced natural accretion does not deprive these land areas of their ‘island’ status.45 Natural islands may grow naturally as a result of the accumulation of coral debris, the deposit of sediment or accretion, but they may also be extended artificially by building up the sea bed with dredged or other aggregate material. The extension of a naturally formed island by artificial means does not affect its legal status. States may extend existing islands just as they may extend mainland territory by way of reclamation or the building of harbour works.46 When a natural island is extended its maritime zones may, depending on the circumstances, extend with it.47 Natural islands which are totally or partially washed away by huge waves, tsunami, hurricane, cyclone or floods may be rebuilt by artificial means without affecting their legal status as islands. 35

ILC Yearbook (1954), vol. I, 92, 94. League of Nations, Conference for the Codification of International Law, Bases of Discussion, Volume II – Territorial Waters, C.74.M.39.1929.V [C.74.M.68.1929.V.2], Geneva, 15 May 1929, 53. 37 UNCLOS I, United States of America: Proposal, UN Doc. A/CONF.13/C.1/L.112 (1958), OR III, 242. 38 Art. 10 (1) Convention on the Territorial Sea and the Contiguous Zone. 39 See Sea-Bed Committee, Malta: Preliminary Draft Articles on the Delimitation of Coastal State Jurisdiction in Ocean Space and on the Rights and Obligations of Coastal States in the Area under their Jurisdiction, UN Doc. A/AC.138/SC.II/L.28 (1973), GAOR 26th Sess. Suppl. 21 (A/9021-III), 69. 40 See Arts. 11, 56 (1)(b)(i), 60, 79 (4), 80, 87 (1)(d), 147 (2), 208 (1), 214, and 246 (5)(c). 41 See The Anna (note 23), 385 c. 42 Gidel (note 28), 682, 684, wanted to assimilate such artificial elevations with natural islands. 43 Cf. Memorandum No. BA 1271/2, dated 7 October 1959, from the Foreign Office to the Political Resident, Bahrain, reproduced in Richard Schofield (ed.), Islands and Maritime Boundaries of the Gulf, vol. 18 (1958– 1960) (1990), 305, 307. 44 For examples, see Clive R. Symmons, Some Problems Relating to the Definition of ‘Insular Formations’ in International Law: Islands and Low-Tide Elevations, in: Clive Schofield/Peter Hocknell (eds.), Maritime Briefing, vol. I, no. 5 (1995), 2–3. 45 Ibid., 3. 46 See Philip C. Jessup, The Law of Territorial Waters and Maritime Jurisdiction (1927), 456; Fritz Mu ¨nch, Die technischen Fragen des Ku¨stenmeers (1934), 76–77. 47 Joshua L. Root, Castles in the Sand: Engineering Insular Formations to Gain Legal Rights over the Oceans, Chinese (Taiwan) Yearbook of International Law and Affairs 32 (2014), 58, 75. 36

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A man-made island built within the territorial sea of an existing naturally formed island 17 cannot automatically adopt the status of the natural island if the latter disappears due to sealevel rise or other events. However, in the course of time the artificial island may become assimilated to a natural island and the fact that it was once artificial forgotten. 48

4. ‘surrounded by water’ For an area of land to be an island it must be surrounded by water at low tide. Otherwise, 18 it would be connected to other land territory and would thus come within, or form part of, the low-water line of that other land territory. In other words, an island can only have its own maritime zones where the low-water line of the island is completely detached from the low-water line of any other (main)land territory.49 An artificial channel between the mainland and a land area is not sufficient as the island must have been ‘naturally formed’. Thus the Kiel Canal does not make the seaward part of Germany and Denmark an island.

5. ‘above water at high tide’ In a Memorandum Regarding a Common Policy for the British Empire on the Question of 19 the Limits of Territorial Waters prepared for the Imperial Conference in London in October 1923, the word ‘island’ was defined in part as ‘all portions of territory permanently above high water’.50 However, the requirement that land territory had to be ‘above high water’ in order to qualify as an island was not generally accepted at the time.51 The Committee of Experts in their Report for the Conference for the Codification of International Law, held at The Hague in 1930, considered any land territory ‘not continuously submerged’ to be an island.52 In response to a questionnaire in preparation of the Conference the United States of America stated that ‘any naturally formed part of the earth’s surface, projecting above the level of the sea at low tide and surrounded by water at low tide, should be considered an island.’53 This view was shared by Denmark, Estonia, Finland, Germany, Japan, Norway, the Netherlands, Rumania, and Sweden. The replies of South Africa, Australia, Great Britain, India, and New Zealand took the opposite position. The Preparatory Committee of the Conference observed the split and the fact that a ‘compromise may be contemplated’, and then stated as its Basis of Discussion No. 14: ‘In order that an island may have its own territorial waters, it is necessary that it should be permanently above the level of high tide. In order that an island lying within the territorial waters or another island or of the mainland may be taken into account in determining the belt of such territorial waters, it is sufficient for the island to be above water at low tide.’ 54 48 See United Kingdom, Records of the Admiralty, Hydrographer’s Minute (H.W.0162/51), 6 January 1951, International Law Territorial Waters (51-1): Artificial islands: territorial waters and law of the sea, British National Archives, ADM 1/21890/50. 49 Aaron L. Shalowitz, Shore and Sea Boundaries: With Special Reference to the Interpretation and Use of Coast and Geodetic Survey Data, vol. I (1962), 226. See League of Nations, Conference for the Codification of International Law, Bases of Discussion, Volume II – Territorial Waters, C.74.M.39.1929.V [C.74.M.68.1929.V.2], Geneva, 15 May 1929, 53. 50 Imperial Conference 1923. Report of Inter-Departmental Committee on the Limits of Territorial Waters, E/ 64. Revised, Imperial Conference 1923, Territorial Waters as a common Empire Policy, British National Archives IOR/L/7/1290, File 3667(i). 51 See e. g. Harvard Law School, Research in International Law, Draft Convention on Territorial Waters and Comments, AJIL Special Supplement 23 (1929), 241, 243. 52 League of Nations, Committee of Experts for the Progressive Codification of International Law, Report to the Council of the League of Nations on the Questions which Appear Ripe for International Regulation (Questionnaires Nos. 1 to 7), C.196.M.70.1927.V.1, 20 April 1927, 41–42. See also the text of Art 5 of the Draft Convention, ibid., 59. See further identical the text of Art 5(1) of the Draft Convention Amended by M. Schu¨cking in Consequence of the Discussion in the Committee of Experts, ibid., 72. 53 See League of Nations, Conference for the Codification of International Law, Bases of Discussion, Volume II – Territorial Waters, C.74.M.39.1929.V [C.74.M.68.1929.V.2], Geneva, 15 May 1929, 53. 54 Ibid., 54.

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A distinction was made not between islands and low-tide elevations but between islands permanently above water at high tide and islands above water only at low tide. While the first category had a territorial sea of its own, the second category could only extend an existing territorial sea of the mainland or another high tide island. Both, however, were called ‘islands’.55 It was only the ILC that reserved the term ‘island’ for land area that ‘in normal circumstances is permanently above high-water mark.’56 The distinction between ‘islands’ and ‘low-tide elevations’ then found its way into the Geneva Convention on the Territorial Sea and Contiguous Zone which in Art. 10 (1) defined the term ‘island’ as an area of land ‘which is above water at high tide.’57 20 Islands are also referred to as ‘high-tide elevations’ or ‘high-tide features’. The question of whether an area of land is above water at high tide is a question of hydrography. The Convention is silent on the question of which tide is relevant for the determination of island status: highest astronomical tide, mean high-water spring tide, mean high-water neap tide, or mean sea level?58 Although many States define the term ‘island’ in their national legislations by reference to the ‘mean high-water spring tides’,59 there is no clear rule of customary international law that would mandate that the status of islands be determined against any particular high-water datum.60 Accordingly, the Tribunal in the SCS Arbitration considered ‘that States are free under the Convention to claim a high-tide feature or island on the basis of any high-water datum that reasonably corresponds to the ordinary meaning of the term “high tide” in Articles 13 and 121. Ordinarily, this would also be the height datum for nautical charts published by that State, above which rocks would be depicted as not covering at high tide.’ 61

21

When determining whether an area of land is above water at high tide, tidal patterns and ranges have to be considered.62 Tidal levels in a sea may vary both spatially and temporarily. A tidal model or method is required to convert bathymetric measurements made at different stages of the tide to a standard level. There are more than 20 global ocean tide models. 63 The International Court of Justice (ICJ) considered calculations based on global tidal models like the (disputed) Grenoble Tidal Model as not sufficient in shallow waters ‘to prove that tiny maritime features are a few centimetres above water at high tide’. 64 If the parties to a dispute rely on different tidal models in their arguments, a court or tribunal should only treat such features as islands which are above water at high tide no matter which model is used. This is consistent with the fact that international law does not specify a particular tidal model for that purpose, as well as the bilateral character of the establishment of a maritime boundary. 65 In the SCS Arbitration, the Tribunal considered that the existence of potentially overlapping entitlements may have practical considerations for the selection of the vertical datum and tidal model against which the status of a land feature as an island is to be assessed. This – according to the Tribunal – may be particularly true if the parties’ respective data and models 55

See Mu¨nch (note 46), 79. ILC Yearbook (1956), vol. II, 270. 57 See supra, MN 4. 58 For the various tidal levels, see Daniel P. O’Connell, The International Law of the Sea, vol. I (1982), 173–175. 59 See e. g. Solomon Islands, The Delimitation of Marine Waters Act, 1978, Act No. 32 of 21 December 1978, section 2(1); Tonga, The Territorial Sea and Exclusive Economic Zone Act, Act No. 30 of 23 October 1978, as amended by Act No. 19 of 1989, S. 2 (1); New Zealand, Territorial Sea and Exclusive Economic Zone Act 1977, Act No. 28 of 26 September 1977 as amended by Act No. 146 of 1980, S. 2 (1), Falkland Islands (Territorial Sea) Order 1989 [SI 1989, No. 1993], Art. 4 (a); St. Helena and Dependencies (Territorial Sea) Order 1989 [SI 1989, No. 1994], Art. 5 (a). 60 Cf. US Supreme Court, United States v. Alaska, 521 U.S. 1, 23 (1997), where Alaska and the United States agreed that ‘high-tide’ under Art. 10 (1) of the Convention on the Territorial Sea and the Contiguous Zone should be defined as ‘mean high water,’ an average measure of high water over a 19-year period. 61 SCS Arbitration Award (note 19), para. 311. 62 Cf. ibid., paras. 314–319. 63 See C. K. Shum et al., Accuracy Assessment of Recent Ocean Tide Models, Journal of Geophysical Research 102 (1997), 25,173. 64 Territorial and Maritime Dispute (note 15), 645 (para. 38). 65 Cf. ibid., 645 (para. 37). 56

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indicate differing results.66 The Tribunals thus seems to have assumed that the relevant vertical datum or tidal model is the one of the State in whose EEZ or on whose continental shelf a feature is located.67 The Convention does not specify how frequently a feature must be above water at high 22 tide to qualify as an island. The Tribunal in the SCS Arbitration held that ‘it is possible that a sand cay may be dispersed by storm action and reform in the same location after a short while. The absence of a sand cay at a particular point in time is thus not conclusive evidence of the absence of a high-tide feature. […] the Tribunal considers that the strong historical evidence of a sand cay on the reefs […] is to be preferred, even if the presence of [the feature] over time is intermittent.’68

While the ILC in its Draft Articles on the Law of the Sea defined an island as an area of land ‘which in normal circumstances is permanently above high-water mark’,69 this part of the definition was later dropped from Art. 10 (1) of the Convention on the Territorial Sea and the Contiguous Zone at the suggestion of the United States which argued that the requirements ‘in normal circumstances’ and ‘permanently’ are conflicting and that ‘there is no established state practice regarding the effect of subnormal or abnormal or seasonal tidal action on the status of islands.’70 But this change did not signal an intent to cover features that are only sometimes or occasionally above water at high tide. On the contrary, to qualify as an island, a feature must be above water at high tide except in abnormal circumstances. 71 In particular, a land area cannot be deemed an island when above water at high tide and a low-tide elevation when below water at high tide. A feature that oscillates above and below high tide is not an island; 72 there are no ‘ambulatory’ islands. But, there is nothing in the Convention which prescribes that to be an island a feature must have been above water at high tide for any particular length of time. There is no specific altitude requirement. A feature that is only millimetres or centimetres 23 above water at high tide can qualify as an island.73 A low-tide elevation can become an island as a result of natural accretion (alluvium). For 24 example, a coral boulder may be pushed onto the reef platform and above high water by storm action,74 or a sand cay or sandbar may be formed by storm action on a drying reef making the drying reef a rock island.75 Artificially increasing the height of a feature by land reclamation, on the other hand, will not satisfy the requirement that an island is above water at high tide. This is the logical corollary of the requirement that an island is a ‘naturally formed’ area of land.76 Human modification of features that, in their natural condition, are submerged at high tide will not change their legal status and cannot generate their own maritime entitlements. The raising of the height of an existing natural island or its rebuilding after storm action, on the other hand, does not deprive it of its island status. If a feature is above water at high tide because of reclamation works, it is an ‘artificial island’. In case of land reclamation or construction activities, the status of a feature must be ascertained on the basis of its earlier, natural condition, prior to the onset of these activities. 77 66 PCA, South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China), Award on Jurisdiction and Admissibility of 29 October 2015, paras. 401, 403, available at: https://www.pcacases.com/web/ view/7; SCS Arbitration Award (note 19), para. 283. 67 See SCS Arbitration Award (note 19), para. 312. 68 Ibid., para. 373. 69 ILC Yearbook (1956), vol. II, 257. 70 USA Proposal (note 37). 71 See United States v. Alaska (note 60), 22–27. 72 See ibid., 31–32. 73 See Maritime Delimitation between Qatar and Bahrain (note 16), 99 (para. 197); and ibid., Reply Submitted by the State of Bahrain (Merits), vol. 1, 30 May 1999, para. 329; Territorial and Maritime Dispute (note 15), 644 (para. 36), and 645 (para. 37). 74 SCS Arbitration Award (note 19), paras. 354, 382 (with regard to McKennan Reef in the South China Sea). 75 See ibid., paras. 373, 384 (with regard to Sandy Cay in the South China Sea). 76 See Root (note 47), 75. 77 See SCS Arbitration Award (note 19), paras. 305, 306, 508.

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Nature may not only operate to raise the height of a feature but may also diminish it. Just as through accretion an island may come into existence, so it may disappear through erosion or volcanic action. Thus, if a feature falls below the water level at high tide it loses its status as an island.78 If, on the other hand, the part of the feature which is exposed at high tide is removed against the will of the territorial sovereign by artificial means, the feature will not lose its islands status.79 26 Above water at high tide must be understood as referring to the ‘naturally occurring tide’. Creating the appearance of a feature being above water at high tide by manipulating or keeping out the tide by artificial means, for example by building walls of other structures around a low-tide elevation, cannot transform that feature into an island. 80 25

6. ‘Rocks’ ‘Rocks’ must be distinguished from so-called ‘drying rocks’ which are rocks that are only visible at low tide and as such are properly characterised as ‘low-tide elevations’. ‘Rocks’, as used in Art. 121(3), are a subcategory of the category ‘island’, as defined in Art. 121(1). 81 28 The term ‘rocks’ is not defined in the Convention. The Tribunal in the SCS Arbitration held that the term does not establish ‘any geological or geomorphological criteria’. In other words, Art. 121 (3) does not apply only to ‘features that are composed of solid rock or that are otherwise rock-like in nature’,82 but also to features consisting of sand, clay, coral or other material. The Tribunal thus gave up the distinction between rocks and islands. If rocks are a subcategory of islands but are not distinguishable from the latter on geological or geomorphological grounds, Art. 121 (3) in fact read: ‘islands which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.’ 83 The Tribunal here adopted a legislative role rewriting the text of Art. 121 (1). 29 There are several reasons that militate against the Tribunal’s wide interpretation of the term ‘rocks’. First, it is contrary to the ordinary meaning of the term to treat any area of land irrespective of its composition as a ‘rock’. Second, the term ‘rocks’ in Art. 121 (3) would be devoid of a distinct meaning and one might wonder why the drafters did not employ the term island, if that is what they intended. Third, and most importantly, the interpretation is not in accordance with the drafting history of the provision. During the deliberations of the topic ‘regime of islands’ in the Second Committee of UNCLOS III States clearly distinguished between ‘islands’, ‘islets’, ‘rocks’ and ‘low-tide elevations’. In a draft article on the regime of islands proposed by 15 African States in August 1974, a ‘rock’ was defined as ‘a naturally formed rocky elevation of ground’, while an island or an islet was defined as a vast or smaller ‘naturally formed area of land’.84 Similarly, an informal proposal submitted by Algeria, Ireland, Madagascar, Morocco, Romania, Senegal, Thailand, Tunisia and Turkey (the ‘Nine State Proposal’) defined a ‘rock’ as ‘a naturally formed rocky elevation normally unfit for human habitation’.85 This proposal was submitted in April 1975 to the Second Committee’s informal 27

78 Cf. Robert Jennings/Arthur Watts (eds.), Oppenheim’s International Law, vol. I: Peace (9th edn. 1992), 717 (MN. 276). 79 Cf. Maritime Delimitation between Qatar and Bahrain (note 16), 99 (para. 192); and ibid., Memorial submitted by the State of Bahrain (Merits), vol. 1, 30 September 1996, 269 (para. 623). 80 See Root (note 47), 76. 81 SCS Arbitration Award (note 19), para. 481. See also United States Department of State, Limits in the Sea No. 143: China: Maritime Claims in the South China Sea (5 December 2014), 13. See further supra, MN 9. 82 SCS Arbitration Award (note 19), paras. 479–480, 504(a), 540. 83 See Kwiatkowska/Soons (note 18), 153, para. 3.5. 84 See UNCLOS III, Algeria et al.: Draft Articles on the Regime of Islands, UN Doc. A/CONF.62/C.2/L.62/ REV. 1 (1974), OR III, 232–233. See also the proposed revision of Art. 132 (ISNT II) by Tunisa, submitted in April 1976: ‘Un rocher est une e´le´vation rocheuse naturelle de terrain’, reproduced in: Platzo¨der (note 10), 347. 85 Reproduced in: Platzo ¨ der (note 10), 221–222. For the history of this proposal, see Mahon Hayes, The Law of the Sea: The role of the Irish Delegation at the Third UN conference (2011), 61–63. See also Romania’s argument in ICJ, Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, ICJ Reports (2009), 61, 120 (para. 180), that ‘Serpents’ Island qualifies as a “rock” because: it is a rocky formation in the geomorphologic sense’.

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consultative subgroup on the regime of islands whose discussions gave rise one month later to the article in the ISNT that became Art. 121. Art. IV of this widely overlooked 86 proposal provided: ‘1. Islets of islands without economic life and unable to sustain a permanent population shall have no marine space of their own. 2. Rocks and low-tide elevations shall have no marine space of their own.’ 87

The proposal was opposed by States with offshore islands, in particular the Pacific Ocean small island States and New Zealand. Because of the extreme economic dependence of the Pacific small island States on resources of the sea they had tabled a proposal which provided, inter alia: ‘1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide. 2. Subject to paragraph 5 of this article, the territorial sea of an island is measured in accordance with the provisions of the Convention applicable to other land territory. 3. The economic zone of an island and its continental shelf are determined in accordance with the provisions of this Convention applicable to other land territory. 4. The foregoing provisions have application to all islands, including those comprised in an island State.’ 5. In the case of atolls or of islands having fringing reefs, the baseline for measuring the breadth of the territorial sea shall be the seaward edge of the reef, as shown on official charts.’ 88

The Pacific Ocean small island States and New Zealand argued that there was no logical reason to distinguish between sovereign rights appertaining to islands and sovereign rights appertaining to other land territory. In addition, all islands comprising the State must be treated alike and should have the same ocean space as other territories. 89 Any restriction on the ocean space of certain categories of islands should not affect mid-ocean island States. 90 They felt that the restrictions on ocean space spelled out in the Nine State Proposal were not adequate to cover their concerns. The provision on ‘Regime of Islands’ that appeared in the ISNT (Art. 132) excluded low-tide elevations from the definition of islands, and provided that rocks which could not sustain human habitation or economic life of their own should not have an EEZ or continental shelf. Other islands would have both. This provision obviously derived in part from the Nine State Proposal,91 but did not go nearly so far in the restriction of ocean space to certain categories of islands. It benefited Ireland by depriving Rockall, a rock in the North Atlantic Ocean from which the United Kingdom claimed maritime zones to the detriment of Ireland, of an EEZ and continental shelf, but was not adequate for some of the other nine States who attempted to amend Art. 132 (3) so as to reduce further the capacity of islands to generate zones of maritime jurisdiction. 92 In contrast, Art. 132, as it stood, would have been acceptable to New Zealand and the Pacific Ocean small island States, which offered their support on questions of delimitation, in return for acceptance of Art. 132 by the proponents of the Nine State Proposal. 93 As some 86 While Nordquist et al. meticulously list all formal and informal documents that form part of the travaux pre´paratoires of Art 121, they omits the Nine State Proposal from its list of informal documents and states that at ‘the third session (1975) […] no new proposals were submitted’; see Nordquist/Nandan/Rosenne (note 9), 326 and 335 (MN. 121.6). 87 Reproduced in: Platzo ¨ der (note 10), 222. 88 UNCLOS III, Fiji et al.: Draft Articles on Islands and on Territories under Foreign Domination or Control, UN Doc. A/CONF.62/C.2/L.30 (1974), OR III, 210–211. Another informal proposal submitted to the informal consultative subgroup on 28 April 1975 also emphasized that the rules on maritime zones ‘have application to all islands, including those comprised in an island State’; see Platzo¨der (note 10), 221. 89 Second Committee UNCLOS III, 39th Meeting, UN Doc. A/CONF.62/C.2/SR.39 (1974), OR II, 282 (para. 37, Tonga). 90 Second Committee UNCLOS III, 38th Meeting, UN Doc. A/CONF.62/C.2/SR.38 (1974), OR II, 278–279 (New Zealand). 91 Cf. ISNT (note 11). 92 See Hayes (note 85), 62, 83. 93 Ibid., 83.

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proponents of the Nine State Proposal, however, continued to press for the inclusion of islets and small islands in Art. 132 (3),94 the Pacific island States joined a group of 22 States which in April 1976 advocated the deletion of paragraph 3 altogether, giving all islands the same maritime entitlements as continental land territory. The deletion of the provision was opposed, inter alia, by the USSR, Liberia, Algeria, Turkey, Poland the German Democratic Republic, Sri Lanka, and Libya.95 As a consequence of these conflicting positions, the text of the provision on the regime of islands survived UNCLOS III in the compromise formula adopted in the ISNT in 1975. 30 In this connection it is of interest to note that Art. 132 of the ISNT was drafted by Ambassador SATAYA N. NANDAN, who served as Rapporteur of the Second Committee.96 Ambassador NANDAN was, at the same time, head of the Fiji delegation to UNCLOS III which together with the delegations of other Pacific Ocean small island States strongly advocated full maritime zones for all islands.97 At the 39th meeting of the Second Committee on 14th August 1974, he had argued that the ‘attempt to exclude uninhabited islands from the concept of the economic zone ran counter to article 10 of the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone. To adopt any such proposals would be to impose an unjustifiable penalty on island States, particularly the small island territories of the South Pacific’.98

It is difficult to comprehend that Ambassador NANDAN was drafting a provision that would have deprived all ‘islands’ which cannot sustain human habitation or economic life of their own of an EEZ and continental shelf – an outcome that would have been contrary to the interests of his own country.99 If the interpretation of Art. 121 (3) by the Tribunal in the SCS Arbitration were applied to some of the small remote islands in the South Pacific Ocean, several of the Pacific island States, including Fiji, would have their EEZ and (outer) continental shelf claims considerably reduced.100 31 States understood Art. 132(3) of the ISNT to mean that islands and islets, irrespective of whether they could sustain human habitation or economic life of their own, were to enjoy the same EEZ and continental shelf rights as other land territory. This is shown by the fact that during the informal meetings of Committee II in April 1976 several States proposed to revise the article in order to broaden the restrictions on maritime zones of islands. For example, Libya suggested that paragraph 3 be revised to read as follows: ‘Small islands and rocks, wherever they may be, which cannot sustain human habitation or economic life of their own shall have no territorial sea, nor contiguous zone, nor economic zone, nor continental shelf.’101 The Libyan proposal was supported by Iran and Yemen. Tunisia suggested that a ‘State cannot claim jurisdiction over maritime areas on the basis of the sovereignty or control which it exercises over islets, rocks or low-tide elevations’.102 Romania proposed to insert after 94

See infra, MN 31. See US Mission to United Nations New York, Cable 1976USUNN01886, LOS Committee II Meetings, April 27, 1976, 30 April 1976. 96 See Nordquist/Nandan/Rosenne (note 9), xvii. See also Nordquist (note 18), 1014. 97 See supra, nn. 71, 72. See also UNCLOS III, Statement by the Chairman of the Joint Committee of the Congress of Micronesia submitted on behalf of the Congress by the United States of America, UN Doc. A/ CONF.62/L.6 (1974), OR III, 84. 98 Second Committee 39th Meeting (note 89), 283 (para. 50). 99 Ambassador Nandan expressly stated that Fiji claimed an EEZ and continental shelf also for an uninhabited island situated more than 200 miles from the main archipelago and separated from the submarine platforms underlying it; see ibid., 50, para. 48. 100 For example, Fiji claims a 200 NM EEZ and an outer continental shelf from its outlying ‘island’ of Ceva-iRa, also known as Conway Reef, which measures only about 100 metres by 325 metres; see United States Department of State, Bureau of Intelligence and Research, Limits in the Sea, No. 101: Fiji’s Maritime Claims (30 November 1984), 4. 101 UNCLOS III, Libyan Arab Republic: Article 132 (ISNT II), reproduced in: Platzo ¨ der (note 10), 347 (italics added). 102 UNCLOS III, Tunisia: Article 1232 (ISNT II), reproduced in: Platzo ¨ der (note 10), 347 (translation from French provided; italics added). 95

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‘rocks’, the word ‘islets’.103 In April 1978, a group of 10 States again suggested to revise the text of the provision to read ‘Rocks and islets’, rather than just ‘Rocks’. 104 At the 169th meeting of the Plenary on 15 April 1982 Romania proposed a new paragraph 4 to what by then had become Art. 121 which read as follows: ‘Uninhabited islets should not have any effects on the maritime spaces belonging to the main coasts of the States concerned.’ 105 Romania considered the amendment necessary because ‘Paragraph 3 of that article referred only to rocks’.106 This shows that States considered the term ‘rocks’ not to include islets, let alone proper islands. The distinction in Art. 121 (3) is thus not between islands that can sustain human 32 habitation or economic life of their own and those that cannot, as held by the Tribunal in the SCS Arbitration, but between rocks that cannot sustain human habitation or economic life of their own and all other islands, irrespective of their capacity for human habitation or economic life of their own. This means that there are three categories of islands: (1) rocks that cannot sustain human habitation or economic life of their own; (2) rocks that can sustain human habitation or economic life of their own; and (3) all other islands. Only the first category of islands does not have an EEZ or continental shelf. This restrictive interpretation of Art. 121 (3) is in line with the jurisprudence of both 33 domestic and international courts and tribunals which have treated ‘islands’ (other than rocks) which cannot sustain human habitation or economic life of their own, as interpreted by the Tribunal in the SCS Arbitration,107 as generating entitlements to an EEZ and continental shelf. For example, the Norwegian Supreme Court ruled that with 13.2 km 2 the size of Abeløya (Abel Island) ‘alone is sufficient to rule out that it is a “rock” according to the exemption in Article 121 paragraph 3’ and that ‘State practice seems to support this reading’.108 The International Tribunal for the Law of the Sea (ITLOS) considered the uninhabited, 368 km2 large Australian Heard Island in the Southern Ocean to be an island despite the fact that much of its surface is covered with snow and ice. 109 Both the Conciliation Commission on the Continental Shelf Area between Iceland and Jan Mayen and the ICJ treated Jan Mayen, which has an area of about 373 km2, as an island generating EEZ and continental shelf rights, despite noting that ‘Jan Mayen has no settled population, as only 25 persons temporarily inhabit the island for purposes of their employment’ at meteorological or defence-related stations and that ‘Norwegian fishing interests in the waters surrounding Jan Mayen are however the interests of mainland Norway, not of Jan Mayen as such, where there are no fishermen.’110 The Conciliation Commission expressly stated that ‘Jan Mayen must be considered as an island. Paragraphs 1 and 2 of Article 121 are thus applicable to it.’111 This jurisprudence indicates that besides geological and geomorphological conditions the size of a land feature will also be taken into account when deciding whether a feature constitutes a ‘rock’ or rock-like feature. Against this background, it is not surprising that the ICJ treated QS32, ‘a minuscule feature, barely 1 ~o in the Caribbean Sea as a square m in dimension’,112 situated on the Bank of Quitasuen 103

See US Mission to United Nations New York, Cable 1976USUNN01886 (note 95). UNCLOS III, Algeria et al.: Informal Suggestion, UN Doc.C. 2/Informal Meeting/21 (1978), reproduced in: Renate Platzo¨der (ed.), Third United Nations Conference on the Law of the Sea: Documents, vol. V (1984), 30. 105 UNCLOS III, Romania: Amendment to Article 121, UN Doc. A/CONF.62/L.118 (1982), OR XVI, 225. 106 UNCLOS III, 169th Plenary Meeting, UN Doc. A/CONF.62/SR.169 (1982), OR XVI, 97 (para. 53). 107 See infra, MN 35 et seq. 108 Norway, Supreme Court, Public Prosecutor v. Haraldsson and Others, Judgment of 7 May 1996, 140 ILR 559, 564. 109 See ITLOS, ‘Volga’ (Russian Federation v. Australia), Prompt Release, Judgment, ITLOS Reports (2002), 10, 44 (para. 6, decl. Vukas). 110 ICJ, Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), Judgment, ICJ Reports 1993, 38, 73, para. 79. See also Conciliation Commission: Iceland and Jan Mayen (note 16), 801–803. 111 Conciliation Commission: Iceland and Jan Mayen (note 16), 803–804. 112 Territorial and Maritime Dispute (note 15), 699 (para. 202). 104

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‘rock’.113 The Court defined a ‘bank’ as ‘a rocky or sandy submerged elevation of the sea floor’.114 34 A restrictive interpretation of Art. 121 (3) is also confirmed by State practice. Numerous States have made relatively small, uninhabited barren islands in remote locations the subject of claims to an EEZ and an (outer) continental shelf which have received no opposition from other States. For example, France has established EEZ’s around islands in French Polynesia, French Southern Ocean islands (Kerguelen Islands, Crozet Islands), Clipperton Island, Amsterdam Island; Australia claims an EEZ and outer continental shelf around Heard Island and McDonald islands;115 Fiji has established an EEZ around Ceva-i-Ra; Kiribati has claimed an EEZ measured in part from McKean Island; Mexico has established an EEZ around Clarion and Roca Portida islets in the Pacific; Venezuela has established an EEZ around Aves Island; Norway claims an EEZ and outer continental shelf from Bouvet Island;116 Portugal claims an EEZ from Ilhas Selvagens; the United States has established an EEZ around Maro Reef in the Northwest Hawaiian Islands, Palmyra Atoll, Kingman Reef and around Howland and Baker Islands. 117

7. ‘cannot’ The use of the word ‘cannot’ implies a concept of objective capacity or capability. 118 Actual habitation or economic activity at any particular moment in time is not required or relevant, except to the extent that past habitation or economic life may indicate the capacity of a rock to sustain such activity.119 The capacity of a rock to sustain human habitation or economic life of its own must be assessed on a case-by-case basis.120 Where indigenous island populations traditionally make use of groups of islands to support their livelihood, the focus should not be on the capacity of the individual rock but on the capacity of the group to collectively sustain human habitation and economic life.121 36 The Tribunal in the SCS Arbitration held that a feature must have the capacity to sustain human habitation or economic life ‘in its natural form’ or in its ‘natural capacity’.122 Drawing on the context of Art. 121 (3) and, in particular, the requirement in Arts. 13 and 121 (1) that an area of land must be ‘naturally formed’ in order to qualify as an island or low-tide elevation, the Tribunal imported the requirement that the status of a feature must be assessed on the basis of its natural condition into Art. 121 (3). The feature was to be capable of sustaining human habitation or economic life without ‘external additions’, ‘human modifications’, ‘technological enhancements’ or ‘extraneous materials’.123 Accordingly, the Tribunal under35

~o is a ‘bank’, see ibid., 640 (para. 24). Ibid., 693 (para. 183), and 713 (para. 238). For the fact that Quitasuen Ibid., 638 (para. 20). The Tribunal in the SCS Arbitration (note 19), para. 480, relied on the ICJ’s judgment in Territorial and Maritime Dispute for its finding that Art. 121 (3) did not impose a geological or geomorphological criterion for the term ‘rock’. The statement of the ICJ referred to by the Tribunal, according to which international law did not define the status of a feature ‘by reference to its geological composition’ related to the definition of ‘island’, not ‘rock’; see Territorial and Maritime Dispute (note 15), 645, para. 37. 115 The CLCS recognised the legal entitlement of Australia to establish a continental shelf beyond 200 NM in the region of the Kerguelen Plateau based on the volcanic Heard and McDonald Islands; see Recommendations of the Commission on the Limits of the Continental Shelf (CLCS) in Regard to the Submission Made by Australia on 15 November 2004, adopted by the Commission on 9 April 2009 (2009), paras. 64, 76. 116 See Continental Shelf Submission of Norway in respect of Bouvetøya [Bouvet Island], Revised Executive Summary (2015). 117 On the US claim to an EEZ around Howland Island (4.5 km 2 in size) and Baker Island (2.1 km2 in size), see Digest of United States Practice in International Law 2008 (2008), 642–644. The claim was confirmed by the United States District Court for the District of Guam in United States v. Marshalls, Decision of 8 May 2008, 2008 U.S. Dist. LEXIS 38627, 11, where the Court held that ‘are in fact islands as defined under the [Law of the Sea] Convention’. 118 See SCS Arbitration Award (note 19), para 483. 119 See ibid., paras. 484, 504(b), 545. 120 See ibid., para. 546. 121 Cf. ibid., paras. 547, 572. 122 See ibid., paras. 483, 541. 123 See ibid., paras 507–509, 541, 559. 113 114

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stood the phrase ‘cannot sustain’ to mean ‘cannot, without artificial addition, sustain.’ 124 But, there is nothing in the text of Art. 121 (3) which requires a rock to be capable of sustaining human habitation or an economic life of its own ‘in its natural condition’, ‘in its natural state’, or ‘in its naturally formed state’. During UNCLOS III Iran and Venezuela expressly pointed out that the insular territory of a State like its continental territory could be ‘developed’ and, as a consequence, could generate an EEZ and continental shelf.125 There is a difference between the question of the status of a feature as an ‘area of land’ and the question of whether an area of land is capable of sustaining human habitation or an economic life of its own. While the status of a feature can and must be assessed on the basis of its natural condition, 126 human habitation and economic life always depend on human activity or involve technological enhancements and extraneous materials.127 No man is an island, and neither is an island. Modern day human habitation will require building and other materials that usually have to be imported. An island economy based, for example, on software development or financial services will necessarily depend on the import of computers and other materials. What Art. 121 (3) requires is the ‘basic capacity’ of a feature to sustain human habitation or economic life of its own. Such basic capacity may be developed further by human activity. As is often the case, the question of human development is one of degree. Given sufficient resources, any place (on earth or in outer space) can be made habitable. 128 If the term ‘cannot’ is interpreted too formalistically, excluding any outside assistance (food, water, technology) or human engineering, most, if not all currently uninhabited islands will have to be considered uninhabitable. If, on the other hand, the term is interpreted too loosely, excluding only nearcomplete sustainment from outside, all islands will be able to be habitable. It has been suggested that the ‘best interpretation is one based on reasonableness: a reasonable amount of engineering and outside assistance is acceptable to prove capability of sustaining the required showings’.129

8. ‘sustain’ The term ‘sustain’ in its ordinary meaning suggests that what is required is capacity over 37 time. The Tribunal in the SCS Arbitration, however, took the view that the term was not limited to a temporal concept but also included ‘the concept of the support and provision of essentials’ as well as ‘a qualitative concept, entailing at least a minimal “proper standard”’. 130 Apart from references to the Oxford English Dictionary, the Tribunal did not provide any support for reading a ‘qualitative element’ into Art. 121 (3), let alone did it provide any criteria for what is meant by a ‘proper standard’. The Tribunal in the SCS Arbitration also ruled that ‘in connection with sustaining human 38 habitation, to “sustain” means to provide that which is necessary to keep humans alive and healthy over a continuous period of time, according to a proper standard.’131 At a minimum, sustained human habitation would require that a feature be able to support, maintain, and provide potable fresh water, food and shelter to a group of persons to enable them to reside there permanently or habitually over an indefinite period of time. 132 A feature that was only capable of sustaining human habitation through the continued delivery of supplies from outside or the establishment of desalination facilities or the introduction of tillable soil did 124

Ibid., para. 510. See UNCLOS III, 191st Plenary Meeting, UN Doc. A/CONF.62/SR.191 (1982), OR XVII, 106 (para. 73, Iran); UNCLOS III, 135th Plenary Meeting, UN Doc. A/CONF.62/SR.135 (1980), OR XIV, 21 (para. 18, Venezuela). 126 See supra, MN 14 et seq. 127 See Charney (note 18), 867. 128 Cf. Maritime Delimitation in the Black Sea (note 85), Memorial of Romania, 19 August 2005, para. 10.79. 129 Root (note 47), 81. 130 SCS Arbitration Award (note 19), para. 487. 131 Ibid. 132 Ibid., paras. 490, 492, 546, 548. 125

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not meet the requirements of Art. 121 (3).133 An exception, again, was made for the traditional lifestyle of small island populations. Where a network of islands sustained human habitation on some of the islands, the role of the other islands was not equated with external supply.134 Other factors to determine whether a feature is capable to sustain human habitation included the prevailing climate, the proximity of the feature to other inhabited areas and populations, and the potential for livelihoods on and around the feature. 135 39 In the context of ‘economic life of their own’ the Tribunal found that the term ‘sustain’ meant ‘to provide that which is necessary not just to commence, but also to continue, an activity over a period of time in a way that remains viable on an ongoing basis.’136 Thus, a ‘one-off transaction or short lived venture would not suffice.137

9. ‘human habitation’ The capacity to sustain human habitation does not refer to actual habitation but to habitability.138 The fact that a feature is currently not inhabited does not automatically prove that it is uninhabitable. That an uninhabited island in the past supported a human population establishes at least a strong presumption that it is able to sustain human habitation. 139 41 Habitability of land territory as a criterion for the determination the maritime entitlements was first identified by the commissioner for the Norwegian district of Romsdal who stated on 11 August 1888 ‘that for the determination of the line of the territorial waters, account must undoubtedly be taken only of the outermost land inhabited or habitable and not of the rocks and islets located in the open sea.’140 42 The criterion of ‘habitability’ was also employed in the second revised draft of a confidential ‘Memorandum Regarding a Common Policy for the British Empire on the Question of Territorial Waters’, dated 13 April 1923. In the Memorandum four draft resolutions were put forward that embodied the views of the British Government. Resolution 4 provided: 40

‘The coast-line from the low-water mark of which the 3-miles limit of territorial waters should be measured, is that of the mainland and also that of all habitable islands. Uninhabitable islands, rocks and banks should not be admitted as a basis for the 3-mile limit.’141

It was explained that the criterion of ‘habitability’ was adopted because it limited the extent of territorial waters that could be claimed by a State; it was intimately associated with the idea of sovereignty on which claims to territorial rights must be based; and it was thought that it gave fewer opportunities for dispute than any other criterion that would adequately restrict territorial waters.142 The Hydrographer of the British Navy, Rear Admiral FREDERICK C. LEARMONTH replied to a question on the meaning of habitability: ‘Generally speaking, it means that without artificial means it is not possible for human beings to live on a piece of territory, whatever the shape, form or height and it is never, on account of storms or tides, rendered uninhabitable.’ 143 Rocks 133

Ibid., paras. 511, 547. See also, ibid., para 550. Ibid., para. 547. 135 Ibid., para. 546. 136 Ibid., para. 487. 137 Ibid., para. 499. 138 See the statement by France of 28 July 1983 in response to written statements submitted by other States at the time of signing the Convention: UNCLOS III, Note by the Secretariat, UN Doc. A/CONF.62/WS/37 and ADD.l and ADD.2 (1983), OR XVII, 241 (‘Uninhabited rocks which can sustain human habitation and an economic life of their own are entitled to an economic zone and a continent shelf’). 139 Cf. SCS Arbitration Award (note 19), para. 484. 140 Kommission om sjøgrense i Finmarken, Rapport du 29 fe ´vrier 1912 de la Commission de la frontie`re des eaux territoriales, I: Partie ge´ne´rale (1912), 28. 141 Imperial Conference 1923 Regarding Territorial Waters, Minutes of Meetings of Inter-Departmental Committee, IOR/L/E/7/1290, File 3667B. 142 Ibid. 143 Minutes of the Sixth Meeting of the Inter-Departmental Committee on Territorial Waters, held at the Admiralty, 16 April 1923, IOR/L/E/7/1290, File 3667B. 134

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such as Eddystone Rock off the British coast, that were made habitable by erection of a lighthouse would not generate territorial waters because they ‘have been made habitable’ by artificial means.144 In its final version, as submitted to the British Imperial Conference in October 1923, Resolution 4 read: ‘The coast-line from the low-water mark of which the 3-miles limit of territorial waters should be measured, is that of the mainland and also that of all islands. The word “island” covers all portions of territory permanently above high water in normal circumstances and capable of use or habitation.’ 145

An explanatory note explained: ‘22. The phrase “capable of use or habitation” has been adopted as a compromise. It is intended that the words “capable of use” should mean capable, without artificial addition, of being used throughout all seasons for some definite commercial or defence purpose, and that “capable of habitation” should mean capable, without artificial addition, of permanent human habitation. 23. It is recognized that these criteria will in many cases admit of argument, but nothing more definite could be arrived at in view of the many divergent considerations involved.’146

The four resolutions on the Question of Territorial Waters were recommended for acceptance by the Governments of the British Empire. 147 The British Government continued to apply the definition of an ‘island’ as ‘an area of land above high water capable of human use and habitation’ until the adoption of the Convention on the Territorial Sea and Contiguous Zone in 1958.148 The ‘habitation’ of islands became an issue in the late 1960s/early 1970s, when the 43 Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction (‘Seabed Committee’) worked on the elaboration of legal principles and norms for the exploration and exploitation of the seabed beyond national jurisdiction. During the 56th meeting of the Committee on 23 March 1971, the delegate from Malta, Ambassador ARVID PARDO, pointed to ‘the crucial role of islands’ in the context of the ‘encroachment of coastal State jurisdiction over areas of ocean space formerly open to all’. He pointed out that ‘[v]irtually uninhabited Arctic and sub-Antarctic islands could give their respective possessors the right to claim jurisdiction over millions of square miles of ocean space’, 149 and that ‘[i]f a 200 mile limit of jurisdiction could be founded on the possession of uninhabited, remote or very small islands, the effectiveness of international administration of ocean space beyond national jurisdiction would be gravely impaired.’150 Several States raised the question of whether uninhabited islets or islands should have a territorial sea, continental shelf or 200 NM fishery zone.151 Cameroon, Kenya, Madagascar, Tunisia and Turkey proposed that the maritime spaces of islands should be determined according to equitable principles, including, inter alia, ‘the population or the absence thereof’.152 Romania suggested in the context of delimitation of the marine space between neighbouring States that ‘Islets and small islands, 144

Ibid. Imperial Conference 1923. Report of Inter-Departmental Committee on the Limits of Territorial Waters, E/ 64. Revised, 27 September 1923, Imperial Conference 1923, Territorial Waters as a common Empire Policy, IOR/ L/7/1290, File 3667(i). 146 Ibid. 147 The British Imperial Conference in October 1923 only recommended them for acceptance by the Governments of the British Empire; see The position of the Dominions and India in relation to the signature of Treaties and the question of Territorial Waters, CAB 32/22. 148 See Memorandum on Katah ad Jaradeh and Fasht ad Dibal, dated 25 August 1959, from the Hydrographic Department, Admiralty, to the Foreign Office, reproduced in Richard Schofield (ed.), Islands and Maritime Boundaries of the Gulf, vol. 18 (1958–1960) (1990), 303, 306. 149 Sea-Bed Committee, 56th Meeting, UN Doc. A/AC.138/SR.45-60 (1971), 159 (Malta). 150 Sea-Bed Committee, 57th Meeting, UN Doc. A/AC.138/SR.45-60 (1971), 167 (Malta). 151 See e. g. Sea-Bed Committee, Sub-Committee II, 51st Meeting, UN Doc. A/AC.138/SC.II/SR.48-62 (1973), 46 (Peru); Sea-Bed Committee, Sub-Committee II, 58th Meeting, UN Doc. A/AC.138/SC.II/SR.48-62 (1973), 140–141 (Madagascar). 152 Sea-Bed Committee, Sub-Committee II, Cameroon et al.: Draft Article under Article 19, Re ´gime of Islands, UN Doc. A/AC.l38/SC.II/L.43 (1973). 145

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uninhabited and without economic life, which are situated on the continental shelf of the coast do not possess any of the shelf or other marine space of the same nature.’ 153 However, such distinction between islands on the basis of habitation was strongly objected to by other States.154 In the end, by way of compromise, the requirement of habitation was employed only with regard to rocks, not to islands generally.155 44 The Convention does not define ‘human habitation’ and the question has received little attention in State practice and jurisprudence. 156 In a case concerning the question of whether Howland and Baker Islands are ‘rocks’ or ‘islands’ that can generate an EEZ, the United States District Court for the District of Guam in 2008 rejected the argument that in order to meet the requirement of ‘human habitation’ in Art. 121 (3) the habitation must ‘exist for its own sake, as part of an ongoing community that sustains itself and continues through generations’. The Court held that the United States had provided sufficient evidence that ‘both Islands can sustain human habitation’.157 In its pleadings, the United States had stated that the ‘islands were inhabited between 1935 and 1942 by Hawaiian students’, 158 and that the ‘U.S. Coast Guard used the islands during the [Second World] War.’ Since then the islands had been uninhabited and used as a wildlife refuge.159 45 The Tribunal in the SCS Arbitration was the first international tribunal to address the criterion of ‘human habitation’ in detail.160 The Tribunal did not expressly apply the qualifier ‘of their own’ to human habitation,161 but, in practice, reached the same result by requiring that a feature sustain human habitation ‘in its natural form’ or in its ‘natural capacity’. 162 In the Tribunal’s view, the use of the term ‘human habitation’ in Art. 121 (3)included a ‘qualitative element’. Human habitation entailed more than the mere survival of humans on a feature.163 The Tribunal held: ‘The mere presence of a small number of persons on a feature does not constitute permanent or habitual residence there and does not equate to habitation. Rather, the term habitation implies a nontransient presence of persons who have chosen to stay and reside on the feature in a settled manner.’ 164

The temporary inhabitation of islands by fishermen, even for extended periods, 165 the temporary residence of workers engaged in extracting the economic resources of an island, 166 153 Sea-Bed Committee, Sub-Committee II, Romania: Working Paper on Certain Specific Aspects of the Regime of Islands in the Context of Delimitation of the Marine Space between Neighbouring States, UN Doc. A/AC.138/SC.II/L.53 (1973). 154 See e. g. Sea-Bed Committee, Sub-Committee II, 75th Meeting, UN Doc. A/AC.l38/SC.II/SR.75 (1973), 2, 4 (Greece). See also UNCLOS III, Statement by the Chairman of the Joint Committee of the Congress of Micronesia Submitted on Behalf of the Congress by the United States of America, UN Doc. A/CONF.62/L.6 (1974), OR III, 84 (‘We do not believe that the criteria of inhabitation or size are practical or equitable’). 155 See supra, MN 29. 156 But see the statement of the representative of Indonesia during the 15th Session of the ISBA on 2 June 2009: ISA, Fifteenth Session, Council, Press Release SB/15/10 (2009), 3. See also the Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the progress of work in the Commission, Twentysecond session, CLCS/607, 26 September 2008, 7, para 30, that Ascension Island qualifies under Art. 121 for an EEZ and continental shelf ‘in view of its long and continuous history of individuals working and living on the island carrying out economic activity.’ 157 United States v. Marshalls (note 117), 11. 158 The islands were continually occupied in three-month shifts of four men per island, in an attempt to help the United States assert territorial sovereignty over the islands. 159 See United States, District Court for the District of Guam, United States v. Marshalls, Opposition of the United States to Defendant’s Motion to Dismiss for Lack of Subject Matter and In Rem Jurisdiction, December 2007, 1. 160 See SCS Arbitration Award (note 19), paras. 488–492, 512–520, 541–550. 161 For the view favouring the application of the qualifier to both elements, see Root (note 47), 78. 162 See supra, MN 36. 163 SCS Arbitration Award (note 19), para. 546. On the qualitative aspect of human habitation, see also ibid., paras. 492, 505. 164 Ibid., para. 489. 165 Ibid., para. 618. 166 Ibid., para. 619.

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or the stationing of military and other governmental personnel on an island thus does not meet the qualitative requirement of human habitation.167 There is no support for such a ‘qualitative element’ in the ordinary meaning of the term ‘human habitation’ and one may ask why in terms of ‘habitability’ there should be applied a stricter standard to islands than that is applied to the Sahara desert or other inhospitable coastal areas. The Tribunal also identified a ‘quantitative element’ in human habitation. The term ‘human 46 habitation’ implied the habitation of a feature by ‘a settled group or community for whom the feature is home’.168 The Tribunal did not specify a precise number of persons but held that ‘a sole individual’ would not suffice.169 In remote atolls, however, the relevant community did not necessarily need to be large and a few individuals or family groups could suffice. Periodic or habitual residence on a feature by a nomadic people could also constitute habitation. 170 In practice, the Tribunal’s ‘quantitative element’ will raise more questions than it answers.

10. ‘economic life of their own’ A feature does not actually have to sustain economic life. The fact that it currently has no 47 economic life does not prove that it cannot sustain economic life. Evidence of economic activity in the past may be relevant to establish a feature’s capacity to sustain economic life.171 Economic life does not need to be of a certain value but the requirement that it be sustained over a certain period of time presupposes a certain level of viability. 172 The Convention does not provide any definition of the term ‘economic life of their own’. The Norwegian Supreme Court considered the possibility ‘to carry out significant hunting 48 for polar bears’ on an uninhabited island to be sufficient to show the capacity to sustain economic life.173 The Tribunal in the SCS Arbitration adopted a much more stringent definition of the term ‘economic life of their own’. The Tribunal distinguished between ‘economic life’ and mere ‘economic activity’ but admitted that the plain text of the words offered limited guidance as to the character or scale of the activity that would be required to meet the requirement of ‘economic life’ in Art. 121 (3).174 According to the Tribunal, the ordinary meaning of the term ‘life’ suggested that ‘the mere presence of resources will be insufficient and that some level of local human activity to exploit, develop, and distribute those resources would be required.’175 Rocks must be capable of sustaining not simply ‘economic life’ but an economic life ‘of 49 their own’. The Tribunal in the SCS Arbitration interpreted this qualifier to mean that a ‘feature itself (or [a] group of related features) must have the ability to support an independent economic life, without relying predominantly on the infusion of outside resources or serving purely as an object for extractive activities, without the involvement of a local population.’

The resources around which the economic activity revolved had to be local, not imported, as had to be the benefit of such activity.176 This means that fishing and other purely extractive activities (such as guano or phosphates mining, oil and gas exploration, or the collection of shells) which accrue no benefit to the feature or its population do not amount to economic life of the feature as its own.177 In particular, fishing or other extractive activities for the benefit of the mainland population or a population elsewhere generally does not meet 167

Ibid., para. 620. Ibid., para. 520. 169 Ibid., para. 491. 170 Ibid., para. 542. 171 Ibid., paras. 483, 484. 172 See ibid., para. 499. See also ibid., para 543. 173 Public Prosecutor v. Haraldsson and Others (note 108), 565. 174 SCS Arbitration Award (note 19), paras. 505, 512. 175 Ibid., para. 499. See also ibid., para 546 (‘economic life entails more than the presence of resources’). 176 Ibid., para. 500. 177 Ibid., para. 557. 168

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the requirements of Art. 121 (3).178 An exception may be made in case of small island populations which make use of the economic resources of a number of islands for sustenance and livelihoods.179 In case of extractive economic activities there can therefore, as a rule, be no economic life of its own without human habitation.180 50 The Tribunal also held that economic activity derived from a possible EEZ or continental shelf of a feature was not sufficient to endow it with ‘economic life of its own’ because Art. 121 (3) was concerned with determining the conditions under which a feature would be accorded an EEZ and continental shelf. It would be circular if the mere presence of economic activity in those zones were sufficient to endow a feature with those very zones. 181 The Tribunal, however, overlooks that prior to the establishment of the concepts of the EEZ and the continental shelf the relevant sea areas were part of the High Seas. Fishermen from a feature may have been fishing or extracting resources in these areas adjacent to the feature for centuries and may thereby have contributed to the economic life of the feature. There is thus not necessarily any circularity of argument here. The better view therefore seems to be to treat fishing and other activities by a feature’s population in the EEZ and continental shelf area as pertaining to the feature as ‘of its own’. 51 According to the Tribunal in the SCS Arbitration a ‘link’ is required between the economic life and the feature itself. Consequently, fishing and other economic activity in the territorial sea is only to form part of the economic life of the feature, if they are linked to the feature through a local population or otherwise. Fishermen from the mainland or other islands ‘exploiting the territorial sea surrounding a small rock and making no use of the feature itself’ would not suffice to give the feature an economic life of its own. 182 Again, the Tribunal’s ‘link’ requirement raises more questions than it answers. For example, would the building of dwellings for the fishermen or the establishment of a fish processing plant constitute sufficient ‘use of the feature itself’ to establish the required link? The territorial sea is, like dry land, part of the sovereign territory of the State. The better view seems to be that fishing in a feature’s territorial sea forms part of the feature’s own economic life. Any ‘link’ between fishing in the territorial sea and a stable local population amounts to a rewriting of Art. 121(3). Rather than having the capacity to ‘sustain human habitation or economic life of their own’ the ‘link’ requirement means that rocks must have the capacity to ‘sustain human habitation and economic life of their own’ in order to generate entitlements to an EEZ and continental shelf.183 It is, however, an acknowledged rule of interpretation that treaty provisions must be interpreted as to avoid as much as possible depriving one of them of practical effect for the benefit of others.184

11. ‘or’ 52

The formulation of Art. 121 (3) gives rise to the question of whether the term ‘or’ is used disjunctively or conjunctively. As a matter of logic, the combination of a negative verb form (i. e. ‘cannot’) with the disjunctive ‘or’ creates a cumulative requirement. Applied to the text 178 Ibid., para. 543. See also Denmark’s argument in the Jan Mayen case that the Norwegian fishing vessels in the area operated from the Norwegian mainland and for that reason the ‘Norwegian fishing in the area does not serve to sustain economic life on Jan Mayen’ (Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), Memorial Submitted by the Government of the Kingdom of Denmark, Vol. I, July 1989, para 302). 179 See SCS Arbitration Award (note 19), para. 547. 180 Cf. ibid., para. 623. 181 Ibid., para. 502. 182 Ibid., paras. 503, 556. 183 See ibid., para. 543 (‘the two will in most instances go hand in hand’). The possibility of the two requirements being met independently, mentioned by the Tribunal at para. 497, is limited to populations sustaining themselves through a network of related maritime features. 184 See ICJ, International Status of South West Africa, Advisory Opinion, ICJ Reports (1950), 128, 187 (diss. op. De Visscher).

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of Art. 121 (3) this means that the phrase ‘rocks which cannot sustain human habitation or economic life of their own’ corresponds to ‘rocks which cannot sustain human habitation and which cannot sustain economic life of their own’. The negative overall structure of the sentence (‘have no’) means that a rock must fail both requirements before it can be denied an EEZ and continental shelf. Thus, if a rock is capable of sustaining either human habitation or economic life of its own, it will be entitled to an EEZ and continental shelf.185 There is no hierarchy between the two.

12. ‘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 according to other land territory’ In 1920, the California District Court of Appeal held that there ‘is just as much reason for 53 the extension of state sovereignty over a 3-mile belt around Catalina Island as there is for the extension of sovereignty over a 3-mile zone along and off the shore of the mainland.’ 186 The rule in Art. 121 (2) that the maritime zones of an island are determined in accordance with the provision of the Convention applicable to other land territory is an expression of the general principles of the indivisibility of territorial sovereignty and the sovereign equality of States. During the deliberations in the Seabed Committee and later at UNCLOS III, several States emphasized ‘that the principle for determining the territorial sea of islands and their continental shelf and zones of national jurisdiction should be the same as the principle for determining the territorial sea, continental shelf and zones of national jurisdiction of the continental or other part of the State of which the islands formed an integral part.’187

Although not expressly mentioned in Art. 121 (2), islands can also have internal waters 54 and may give rise to continental shelf entitlements beyond 200 NM. One of the Subcommissions of the Commission on the Limits of the Continental Shelf stated that the phrase that maritime zones of an island ‘are determined in accordance with the provisions of this Convention applicable to other land territory […] implies that for the purposes of delineating the outer limits of the continental shelf all island States have a continental margin in the sense of article 76, paragraph 3.’188 In practice, the principle of equal treatment of islands with other land territory means that 55 the standard baseline rules apply. The normal baseline around an island follows the lowwater line along the coast of the island as marked on large-scale charts officially recognized by the coastal State.189 In case of islands situated on atolls or of islands having fringing reefs, 185 See SCS Arbitration Award (note 19), paras. 494, 496, 504(d), 544. See also ICJ, Territorial and Maritime Dispute (Nicaragua v. Colombia), CR 2012/9, 24 April 2012, 40, para. 10 (Oude Elferink for Nicaragua), available at: http://www.icj-cij.org/docket/index.php?p1=3&p2=3&case=124&code=nicol&p3=2. But, see also UNCLOS III, 140th Plenary Meeting, UN Doc. A/CONF.62/SR.140 (1980), OR XIV, 77, para. 29 (Dominica). 186 Ex parte Marincovich, California District Court of Appeal, Second District, Division 2, Judgment of 10 July 1920, 192 P. 156 at 158 (Cal.App. 2 Dist. 1920). 187 Report of the Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor Beyond the Limits of National Jurisdiction, vol. I, UN Doc. A/9021 (1973), 56 (para. 85). See also Report of the Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor Beyond the Limits of National Jurisdiction, UN Doc. A/8721 (1972), 46 (para. 186); and Second Committee 39th Meeting (note 89), 282, para. 37 (Tonga); Second Committee UNCLOS III, 40th Meeting, UN Doc. A/CONF.62/C.2/SR.40 (1974), OR II, 289 (para. 56, Spain); UNCLOS III, 158th Plenary Meeting, UN Doc. A/CONF.62/SR.158 (1982), OR XVI, 15 (para. 14, Venezuela). 188 Commission on the Limits of the Continental Shelf, Summary of Recommendations of the Commission on the Limits of the Continental Shelf in Regard to the Submission Made by the United Kingdom of Great Britain and Northern Ireland in Respect of Ascension Island on 9 May 2008, adopted by the Commission, with amendments, on 15 April 2010 (2010), 6 (para. 22). See also e. g. Submission by the Federated State of Micronesia to the Commission on the Limits of the Continental Shelf Concerning the Eauripik Rise, Executive Summary, September 2011, 1 (paras. 1–5). 189 Art. 5 UNCLOS. See also Secretary of State Rusk to Attorney General Kennedy, letter, May 21, 1964, reproduced in Marjorie M. Whiteman (ed.), Digest of International Law, IV (1965), 281.

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the baseline for measuring the breadth of the territorial sea is the low-water line of the reef. 190 In case a low-tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from an island, the low-water line on that elevation may be used as the (normal) baseline for measuring the territorial sea of the island. 191 In case of a fringe of islands along the coast of a (large main) island 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 of the main island is measured. 192 In case of islands forming part of an archipelagic State, straight archipelagic baselines joining the outermost points of the outermost islands of the archipelago may be drawn.193

13. ‘Except as provided for in paragraph 3’ 56

The general rule set out in Art. 121 (2) that the maritime zones of an island are determined in accordance with the provision of the Convention applicable to other land territory is subject to the exception in paragraph 3 that rocks which cannot sustain human habitation or economic life of their own have no EEZ and continental shelf. Or, expressed in positive terms, such rocks only have internal waters, territorial sea and contiguous zone. As an exception to the general rule, Art. 121 (3) is to be construed narrowly. 194 The exception set out in Art. 121 (3) differs from the legal situation under the Geneva Convention on the Continental Shelf which defined the ‘continental shelf’, inter alia, as ‘the seabed and subsoil of the submarine areas adjacent to the coasts of islands’ without any distinction between islands.195

190

Art. 6. Art. 11(1). 192 Cf. Maritime Delimitation between Qatar and Bahrain (note 16), 103 (paras. 210–214). 193 Art. 47(1). 194 See Nordquist (note 18), 1015. 195 Art. 1 (b). 191

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PART IX ENCLOSED OR SEMI-ENCLOSED SEAS Article 122 Definition For the purposes of this Convention, ‘enclosed or semi-enclosed sea’ means a gulf, basin or sea surrounded by two or more States and connected to another sea or the ocean by a narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal States. Bibliography: Lewis M. Alexander, Special Circumstances: Semi-Enclosed Seas, in: John King Gamble/Giulio Pontecorvo (eds.), Law of the Sea: The Emerging Regime of the Oceans (1974), 201–215; Joseph J. Darby, The Soviet Doctrine of the Closed Sea, San Diego L. Rev. 23 (1986), 685–699; William V. Dunlap, The Arctic Ocean and the Regime of Enclosed and Semi-Enclosed Seas, in: Gerald Blake et al. (eds.), International Boundaries and Environmental Security (1997), 105–119; Enno Harders, In Quest of an Arctic Legal Regime; Marine Regionalism – A Concept of International Law Evaluated, Marine Policy 11 (1987), 285–298; Uwe Jenisch, Sovereign Rights in the Arctic, Maritime Policies and Practices after UNCLOS III, GYIL 28 (1985), 297–321; Myron H. Nordquist/ Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995); M.L. Pecoraro, The Concept of Enclosed or Semi-Enclosed Seas in the New Law of the Sea, Yearbook of the University of Rome II (1989), 369–382; Donat Pharand, The Case for an Arctic Regional Council and a Treaty Proposal, RGD 23 (1992), 163–195; Jens-Christian Posselt, Umweltschutz in umschlossenen und halbumschlossenen Meeren (1995); P. Stainov, Establishment of a Special International Statute of the Semi-Enclosed Seas, Studies on International Law (Sofia) II (1974), 29–40; Peter Ricketts, NorthAmerican Semi-Enclosed Seas: A Survey, in: Hance D. Smith/Adalberto Vallega (eds.), The Management of Semi-Enclosed Seas: The Emerging Global Pattern and the Ligurian Case (1990), 71–128; Janusz Symonides, The Legal Status of Enclosed and Semi-Enclosed Seas, GYIL 27 (1984), 315–333; Budislav Vukas, Enclosed or Semienclosed Seas, MPEPIL, available at: http://www.mpepil.com.; Mel Weber, Defining the Outer Limits of the Continental Shelf across the Arctic Basin: The Russian Submission, States’ Rights, Boundary Delimitation and Arctic Regional Cooperation, IJMCL 24 (2009), 653–681; Georg Witschel/Ingo Winkelmann/Katrin Tiroch/ Ru¨diger Wolfrum (eds.), New Chances and New Responsibilities in the Arctic Region (2010) Documents: ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4–12 Cases: ICJ, Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment of 3 June 1985, ICJ Reports (1985), 13 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘enclosed seas’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘semi-enclosed seas’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Geographically Disadvantaged States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. The Arctic Ocean . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 10 10 12 13 14

I. Purpose and Function Art. 122 of the Convention is a definition, as the title explicitly states. It is not the only 1 provision of the Convention that is formally characterized as a ‘definition’ (see � Arts. 29; 76; 101). Art. 122 defines what the term ‘enclosed and semi-enclosed sea’ means ‘for the purposes of this Convention’. The expression ‘for the purposes of this Convention’ corresponds to the introductory phrase in Art. 1, entitled ‘Use of terms and scope’. ‘Enclosed and

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semi-enclosed seas’ are not among the terms listed in Art. 1 (� Art. 1). One might argue that the significance and scope of the concept did not justify, in the view of the drafters of the Convention, its inclusion in the introductory Part I. 2 The function of Art. 122 is to define in which parts of the maritime world coastal States should specifically cooperate with each other in the exercise of their rights and duties under the Convention (cf. � Art. 123). In this respect, Arts. 122 and 123 are intrinsically linked provisions. Together, they form one of the smallest parts of the Convention. The inclusion of provisions on enclosed and semi-enclosed seas in the Convention reflects the recognition that the special geographical situation and ecological characteristics of such seas require cooperation between the States bordering them in managing activities in the marine environment 1. The definition contained in Art. 122 is a negotiated compromise. It serves as a broad basis for encouraging cooperation schemes which are further illustrated in Art. 123. Both provisions must be read and understood together.

II. Historical Background The concept of enclosed and semi-enclosed seas is a relatively new notion in the law of the sea. Even the International Law Commission’s preparatory work for the codification of the law of the sea did not elaborate on the term.2 The contents of Arts. 122 and 123 did not represent customary international law when the provisions were incorporated into the Convention. 4 In Soviet literature, however, a doctrine of enclosed and semi-enclosed seas had been developed. This theory can be traced back to the 18th century. It provided that only States bordering a sea were entitled to use it. The theory mainly aimed to exclude land-locked States from economic and military uses of the seas. Prominent examples from a Soviet perspective were the Baltic, Black and Caspian Seas. In the 1950s, the theory was included in the Soviet International Law Manual.3 In 1958, specific proposals were introduced in the discussions at the Conference of Geneva, but they were not accepted. The doctrine remained a postulate de lege ferenda.4 5 In 1971, when the preparations for UNCLOS III began, the question of enclosed and semienclosed seas was included on the agenda and addressed by Sub-Committee II of the Sea-Bed Committee.5 Enclosed and semi-enclosed seas were not discussed as a separate issue, but rather formed part of the negotiations on the territorial sea and the exclusive economic zone (EEZ).6 The reason for proceeding in that way was that the main concern of the majority of States at the time was to extend the territorial sea to 12 NM and to introduce the new regime of the EEZ. At the same time, most States did not want specific rules for enclosed or semienclosed seas. This procedural decision might have contributed to the rather meagre result of Part IX of the Convention.7 Further references to enclosed and semi-enclosed seas can be found in the list of subjects and issues compiled by Sub-Committee II. Both terms were dealt with when the Sub-Committee discussed the breadth of the territorial sea 8 and the protection of coastal States’ fisheries. 3

1 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995), 343 (MN IX.1). 2 ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc. A/3159 (1956), GAOR 11th Sess. Suppl. 9, 4–12. 3 M.L. Pecoraro, The Concept of Enclosed or Semi-Enclosed Seas in the New Law of the Sea, Yearbook of the University of Rome II (1989), 369, 372. 4 Janusz Symonides, The Legal Status of Enclosed and Semi-Enclosed Seas, GYIL 27 (1984), 315, 318; see also Joseph J. Darby, The Soviet Doctrine of the Closed Sea, San Diego L. Rev. 23 (1986), 685 et seq.; Jens-Christian Posselt, Umweltschutz in umschlossenen und halbumschlossenen Meeren (1995), 27. 5 Nordquist/Nandan/Rosenne (note 1), 357 (MN. 123.2). 6 Sea-Bed Committee, Turkey: Draft Article Under 2.3.2, Breadths of the Territorial Sea; Global or Regional Criteria; Open Seas and Oceans, Semi-Enclosed and Enclosed Seas, UN Doc. A/AC.138/SC.II/L.16 (1973). 7 Budislav Vukas, Enclosed or Semi-enclosed Seas, MPEPIL, para. 8, available at: http://www.mpepil.com. 8 Nordquist/Nandan/Rosenne (note 1), 357 (MN. 123.2).

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The first time the issue was discussed in substance was at the second session of the 6 Conference in 1974. Concepts such as a 200-mile EEZ – including an extension of the jurisdiction of coastal States – caused some States to fear that a separate regime would lead to restrictions on the freedom of navigation in enclosed and semi-enclosed seas. Many States bordering small and isolated enclosed seas shared this position.9 Other concerns, such as increased pollution and the exhaustion of living resources, were raised as well. The rationale for including the topic in the discussions has been described as follows: ‘[T]he main reason for including item 17 in the agenda was that there were basic differences between States situated along the oceans on the one hand and those bordering enclosed and semi-enclosed seas on the other. Those differences could be of a political, economic, geological or ecological nature. Each enclosed sea had its own particular problems and each case warranted its specific solution.’ 10

At the beginning of the negotiations, Iran suggested two provisions, each separately 7 defining enclosed and semi-enclosed seas: ‘(a) The term “enclosed seas” shall refer to a small body of inland waters located along the margins of the main ocean basins and enclosed by the open seas by a narrow outlet; (b) The term “semi-enclosed” sea shall refer to a sea basin located along the margins of the main ocean basins and enclosed by the land territories of two or more states.’ 11

Throughout the subsequent sessions of negotiations, several attempts were made to narrow 8 the definition and make it more precise. New proposals treated enclosed and semi-enclosed seas in one single provision. At the third session a definition proposed by the Chairman of the Second Committee, G. POHL, was incorporated in the Informal Single Negotiating Text (ISNT).12 The provision read: ‘For the purposes of this part, the term “enclosed or semi-enclosed seas” means a gulf, basin or sea surrounded by two or more States and connected to the open seas by a narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal states.’ 13

This definition survived despite numerous subsequent drafting proposals which sought to 9 alter it by, e. g., Finland, Iraq, the Soviet Union, the EEC, the Arab States and others 14 during the sixth and seventh sessions. This definition then became Art. 122 of the Informal Composite Negotiating Text (ICNT)15 and was finally included in Part IX of the text of the Convention. Proposals to delete Part IX in its entirety, such as an informal proposal by the Federal Republic of Germany,16 were not accepted by other States17.

III. Elements 1. ‘enclosed seas’ The first, geographical, part of the definition contained in Art. 122 consists of a description 10 of enclosed or semi-enclosed seas as ‘a gulf, basin or sea surrounded by two or more States 9 Symonides mentions a number of 13 States that sided with France and Greece against the incorporation of such provisions into the text, Symonides (note 4), 320. 10 Second Committee UNCLOS III, 38th Meeting, UN Doc. A/CONF.62/C.2/SR.38 (1974), OR II, 273, 275. 11 Second Committee UNCLOS III, 43rd Meeting, UN Doc. A/CONF.62/C.2/SR.43 (1974), OR II, 293, 295. 12 UNCLOS III, Informal Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/PART II (1975), OR IV, 152. 13 Ibid., 171. 14 Cf. Symonides (note 4), 324–325; Second Committee UNCLOS III, Iraq: Enclosed and Semi-Enclosed Seas (Article 133 ISNT II) (1976, mimeo.), reproduced in: Renate Platzo¨ der (ed.), Third United Nations Conference on the Law of the Sea: Documents, vol. IV (1983), 349, 350. 15 UNCLOS III, Informal Composite Negotiating Text, UN Doc. A/CONF.62/WP.10 (1977), OR VIII, 1, 21. 16 UNCLOS III, Informal Proposal by the Federal Republic of Germany (Part IX) Enclosed or Semi-Enclosed Seas, UN Doc. C.2/Informal Meeting/61 (1980, mimeo.), reproduced in: Renate Platzo¨ der (ed.), Third United Nations Conference on the Law of the Sea: Documents, vol. V (1984), 64. 17 At the resumed ninth session (1980), see Nordquist/Nandan/Rosenne (note 1), 351 (MN 122.8).

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and connected to another sea or the ocean by a narrow outlet’. This part relates specifically to enclosed seas. Gulfs, basins and seas are geographical features which are open to interpretation, and none of these features are defined in the Convention. They could be described geographically as ‘a large indentation caused by the down warping or subsidence of continental shelf areas or a rise in the sea level’18. Distinctions between bays and gulfs are not always precise, although a gulf is usually larger. A basin is a depression of the floor more or less equidimensional in form and of variable extent. A sea can be regarded as a subdivision of an ocean or a large marginal part of a particular ocean.19 11 The requirement that the relevant gulfs, basins and seas must be surrounded by two or more States serves to exclude seas which are surrounded by just one State. This is called a ‘characteristic’ of the definition20. Finally, enclosed and semi-enclosed seas have to be connected to another sea or the oceans by a narrow outlet. The term ‘outlet’ is not used elsewhere in the Convention. The term aims to cover natural outlets such as straits and manmade outlets such as canals.21 What precisely meets the definition of ‘narrow’ is open to interpretation.22 This element is far from precise and is a result of the failure to narrow down the definition during the negotiations.23

2. ‘semi-enclosed seas’ The second part of the definition relates to semi-enclosed seas. It seems to overlap to some extent with the first part relating to enclosed seas. Art. 122 regards a gulf, basin or sea as an (enclosed or) semi-enclosed sea if it consists ‘entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal States’. In as far as this part refers to ‘territorial seas’ (� Part II Section 1 and 2) and ‘exclusive economic zones’ (� Part V), it is a legal definition rather than one based on geographical features. This – rather broad – part of the definition extends the application of this part of the Convention to many gulfs, basins and seas. Only oceans do not fall under this definition. The importance of this part of the definition is generally seen in the ‘confirmation that States bordering an enclosed or semi-enclosed sea are entitled not only to a belt of the territorial sea but also to the exclusive economic zone’ 24. 13 SYMONIDES criticized the internal incoherence of the definition, arguing that this arises from the fact that it employs geographical notions while at the same time relying on legal institutions like territorial seas and EEZ, thus creating a legal notion whose scope of geographical applicability is hard to determine.25 VUKAS found it regrettable that the Conference did not devote more time and attention to the subject, since apparently many delegations were not overly keen to have any special provisions on enclosed or semi-enclosed seas.26 Other authors label the definition adopted by the Convention as ‘far from perfect, given its excessive broadness and the impact it may have on the recognition of a State as “geographically disadvantaged”’ 27. 12

3. Geographically disadvantaged States 14

Art. 70 (2) of the Convention explicitly mentions enclosed and semi-enclosed seas when defining the term ‘geographically disadvantaged States’.28 The definition contained in Art. 70 18

Vukas (note 7), para. 10. Nordquist/Nandan/Rosenne (note 1), 352 (MN 122.9(e)); for further reference, see Symonides (note 4). 20 Vukas (note 7), para. 11. 21 Ibid., para. 12. 22 In the classification of marine areas by Stainov, the outlet of a semi-enclosed sea has to be narrower than 24 miles, see P. Stainov, Establishment of a Special International Statute of the Semi-Enclosed Seas, Studies on International Law (Sofia) II (1974), 29, 30. 23 See supra, MN 3 et seq. 24 Vukas (note 7), para. 14. 25 Symonides (note 4), 323. 26 Vukas (note 7), para. 26. 27 Symonides (note 4), 326. 28 See Harrison on Art. 70 MN 3–4. 19

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(2) includes States ‘bordering enclosed or semi-enclosed seas’ among ‘geographically disadvantaged States’ if they fulfil the same criteria as coastal States in general referred to in the paragraph. Since Art. 70 (2) sets the criteria itself 29, it seems of no relevance if the definition of enclosed or semi-enclosed seas in Art. 122 is a broad or narrow one. Art. 70 (2) is the only provision of the Convention other than Arts. 122 and 123 that mentions enclosed or semienclosed seas. Some 40 to 50 seas around the world are considered to fulfil the conditions of Art. 122 of 15 the Convention.30 Some smaller semi-enclosed seas are part of larger ones, such as the Adriatic and Aegean Seas, which are part of the Mediterranean. State practice is not based upon explicit recognition as an ‘enclosed or semi-enclosed sea’ but on general acceptance. Since this acceptance does not imply clear-cut legal obligations, 31 there has been little controversy about the question of whether a sea is regarded an enclosed or semi-enclosed one or not. Based on geographical criteria, ALEXANDER identified 26 semi-enclosed seas in 1973.32 The main enclosed or semi-enclosed seas today include the Mediterranean Sea, the Aegean Sea, the Ligurian Sea, the Andaman Sea, the Adriatic Sea, the Caribbean Sea, the Persian Gulf, the Celebes Sea, the Red Sea, the South China Sea, the East China Sea, the Black Sea, the Baltic Sea, the Sea of Knots, the Bering Sea, the Gulf of Maine, the Gulf of Mexico, the Sea of Japan, and the Gulf of Aden. In the 1985 Continental Shelf case (Libyan Arab Jamahiriya/Malta), the International 16 Court of Justice referred to semi-enclosed seas as follows: ‘In a semi-enclosed sea like the Mediterranean, that reference to neighboring States is particularly apposite, for … it is the coastal relationships in the whole geographical context that are to be taken into account and respected.’33

4. The Arctic Ocean An interesting example is the Arctic Ocean. Since the adoption of the Convention, it has 17 been disputed whether the Arctic Ocean is an enclosed or semi-enclosed sea. From an oceanographic point of view, one might consider the Arctic Ocean a ‘gulf’. The fact that the Arctic Ocean is called an ‘ocean’ ought not to disqualify it from being an enclosed or semienclosed sea. What is more relevant is that the Arctic Ocean has several sizeable connectors to the North Atlantic: Baffin Bay and Davis Strait between Greenland and Canada; the Greenland Sea and the Denmark Strait (to the east of Greenland) and the Norwegian Sea (between Iceland and Norway). None of the connectors are less than 200 nautical miles wide. These connectors cannot be considered ‘a narrow outlet’ as required by the definition of an enclosed sea in Art. 122. It is therefore not relevant that the Bering Strait, which is only 24 nautical miles wide, by itself would represent a ‘narrow outlet’34. In order to qualify as a semi-enclosed sea, the Arctic Ocean would have to consist ‘primarily’ of the territorial seas and exclusive economic zones of the five coastal States (Norway, Russian Federation, the 29 Which are: dependency upon the exploitation of living resources or absence of a national EEZ, for details see Art. 70 (2). 30 Cf. Symonides (note 4), 325. 31 See Winkelmann on Art. 123. 32 Gulf of Aden, Andaman Sea, Baltic Sea, Bering Sea, Bismarck Sea, Black Sea, Gulf of California, Caribbean Sea, Celebes Sea, East China/Yellow See, Sea of Japan, Java/Flores/Banda Sea, Mediterranean Sea, Gulf of Mexico, North Sea, Persian Gulf, Red Sea, Gulf of St. Lawrence, Solomon Sea, South Chinese Sea, Sulu Sea. On the other hand: Hudson Bay, Kara Sea, Okhotsk Sea and Timor/Arafura Sea are bordered only by one State and thus are not seas in the sense of Art. 122, see Lewis M. Alexander, Special Circumstances: Semi-enclosed seas, in: John King Gamble/Giulio Pontecorvo (eds.), Law of the Sea: The Emerging Regime of the Oceans (1974), 201, 204– 207. 33 ICJ, Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment of 3 June 1985, ICJ Reports (1985), 13, para. 47. 34 William V. Dunlap, The Arctic Ocean and the Regime of Enclosed and Semi-Enclosed Seas, in: Gerald Blake et al. (eds.), International Boundaries and Environmental Security (1997), 107.

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United States, Canada, Greenland/Denmark). The Arctic Ocean measures approx. 5,000,000 NM2. Since nearly half of these waters are considered to be high seas, there is a strong argument that this does not convincingly satisfy the criteria ‘primarily’. Most authors share this view.35 Some refer to an informal understanding among the UNCLOS III delegations36. Other authors, however, continue to assert that it is a semi-enclosed sea 37. The question is not totally without practical consequence, since – regardless the character of obligations stemming from Art. 123 of the Convention38 – the enhanced cooperation between the five Arctic coastal States, as laid down in the 2008 Declaration of Ilulissat, 39 might be considered by third States to be a non-inclusive enterprise based upon Art. 122. Neither the five Arctic coastal States nor the Arctic Council have ever officially referred to the Arctic Ocean as a semi-enclosed sea. Other States – including the remaining Arctic Council Member States – would hardly adhere to such an assumption with its inherent exclusiveness. Thus, the question remains formally open. Many of the activities implemented by the Arctic Council in the Arctic Ocean relate to the tasks suggested in Art. 123.

Article 123 Cooperation of States bordering enclosed or semi-enclosed seas States bordering an enclosed or semi-enclosed sea should cooperate with each other in the exercise of their rights and in the performance of their duties under this Convention. To this end they shall endeavour, directly or through an appropriate regional organization: (a) to coordinate the management, conservation, exploration and exploitation of the living resources of the sea; (b) to coordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment; (c) to coordinate their scientific research policies and undertake where appropriate joint programmes of scientific research in the area; (d) to invite, as appropriate, other interested States or international organizations to cooperate with them in furtherance of the provisions of this article. Bibliography: Yu¨cel Acer, A Proposal for a Joint Maritime Development Regime in the Aegean Sea, JMLC 37 (2006), 1–28; Ellik Adler, A World of Neighbours: UNEP’s Regional Seas Programme, Tropical Coast (2003), 4–18; William V. Dunlap, The Arctic Ocean and the Regime of Enclosed and Semi-Enclosed Seas, in: Gerald Blake et al. (eds.), International Boundaries and Environmental Security (1997), 105–119; Carl A. Fleischer, Fisheries and Biological Resources, in: Rene´-Jean Dupuy/Daniel Vignes (eds), A Handbook on the New Law of the Sea, vol. 2 (1991), 1045–1047; Nien-Tsu Alfred Hu, South China Sea: Troubled Waters or a Sea of Opportunity?, ODIL 41 (2010), 203–213; Laurent Lucchini/Michel Voelckel, Droit de la mer, vol. 1 (1990); Dumitru Mazilu, Peace and Security and Some Problems Regarding the Enclosed or Semi-Enclosed Seas (1985); Lourene Miovski, Solutions in the Convention on the Law of the Sea to the Problem of Overfishing in the Central Bering Sea: Analysis of the Convention, Highlighting the Provisions Concerning Fisheries and Enclosed and Semi-Enclosed Seas, San Diego L. Rev. 26 (1989), 525–574; Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995); Mike Perry, Rights of Passage: Canadian Sovereignty and International Law in the Arctic, UDM Law Review 74 (1996/1997), 657–683; Tullio Treves, 35 Ibid.; J. Enno Harders, In Quest of an Arctic Legal Regime; Marine Regionalism – A Concept of International Law Evaluated, Marine Policy 11 (1987), 295, 296; Uwe Jenisch, Sovereign Rights in the Arctic, Maritime Policies and Practices after UNCLOS III, GYIL 28 (1985), 297, 321. 36 Harders (note 35), 296. 37 Donat Pharand, The Case for an Arctic Regional Council and a Treaty Proposal, RGD 23 (1992), 187–189; Peter Ricketts, North-American Semi-Enclosed Seas: A Survey, in: Hance D. Smith/Adalberto Vallega (eds.), The Management of Semi-Enclosed Seas: The Emerging Global Pattern and the Ligurian Case (1990), 74; Mel Weber, Defining the Outer Limits of the Continental Shelf across the Arctic Basin: The Russian Submission, States’ Rights, Boundary Delimitation and Arctic Regional Cooperation, IJMCL 24 (2009), 653, 670. 38 See Winkelmann on Art. 123. 39 Cf. for example the Declaration of Ilulissat, May 2008, printed in: Georg Witschel et al. (eds.), New Chances and New Responsibilities in the Arctic Region (2010), 293, 294.

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Rapport Ge´ne´ral, Revue de l’INDREMER 3 (1995), 71–86; Budislav Vukas, The Mediterranean: An Enclosed or Semi-Enclosed Sea?, in: Budislav Vukas (ed.) The Legal Regime of Enclosed or Semi-Enclosed Seas: The Particular Case of the Mediterranean (1988), 49–64; Budislav Vukas, Enclosed and Semi-Enclosed Seas, MPEPIL Documents: UNEP, Implementation of the GPA at Regional Level: The Role of Regional Seas Conventions and Their Protocols (2006); UNEP, Ecosystem-based Management of Fisheries, Regional Seas Reports and Studies 175 (2005); UNEP, Regional Seas: Partnerships for Sustainable Development (2005) Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘States bordering an enclosed or semi-enclosed sea should cooperate with each other’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘coordinate the management, conservation, exploration and exploitation of the living resources of the sea’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘coordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment’ . . . . . . . . . . . . . . . . . . . . . . . . 4. ‘coordinate their scientific research policies and undertake where appropriate joint programmes of scientific research in the area’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. ‘invite, as appropriate, other interested States or international organizations to cooperate with them in furtherance of the provisions of this article’ . . . . . . . . . . . .

1 4 10 10 11 12 13 14

I. Purpose and Function Art. 123 builds upon the geographical scope of enclosed and semi-enclosed seas as defined by 1 Art. 122, to which it is closely linked. Its purpose is to indicate areas requiring cooperation between States bordering enclosed or semi-enclosed seas. The provision emphasizes the need and desirability of cooperation by States bordering such seas with regard to both their rights and duties under the Convention. In fact, Art. 123 is the only article which expressly deals with the rights and duties of States bordering enclosed or semi-enclosed seas1. It is the result of a compromise between those States which wanted specific rules for enclosed and semi-enclosed seas, and those which did not. In order to reach a compromise, the drafting language remained somewhat vague. The desirability of cooperation is expressed by a mere ‘should’ (cooperate) rather than a more concrete ‘shall’. The wording that States ‘shall endeavour’ to coordinate in the areas described in paragraphs (a) to (d) is a rather meagre compensation. Although some authors go so far as to stipulate that Art. 123 is a legal obligation to cooperate 2, others see Art. 123 as containing directives ge´ne´rales, invitations adresse´es aux Etats riverains, or as an instrument to legitimize proposals for cooperation.3 The genesis of Art. 123 indicates that the provision was not intended to create a clear-cut legal obligation of regional cooperation. In this vein, Art. 123 should be interpreted as a provision that ‘stimulates the cooperation of States and international organisations in respect of the use and protection of enclosed or semi-enclosed seas as well as to the adoption of regional and sub-regional rules concerning particular seas’ 4. The jurisdiction, rights and duties of coastal States and other maritime States are not 2 affected by Art. 123. Existing treaties on enclosed and semi-enclosed seas and any rights and duties resulting therefrom remain untouched.5 The provision is written in essentially 1

Budislav Vukas, Enclosed and Semi-Enclosed Seas, MPEPIL, para. 15, available at: http://www.mpepil.com. Carl A. Fleischer, Fisheries and Biological Resources, in: Rene´-Jean Dupuy/Daniel Vignes (eds), A Handbook on the New Law of the Sea, vol. 2 (1991), 1045; Mike Perry, Rights of Passage: Canadian Sovereignty and International Law in the Arctic, UDM Law Review 74 (1996/1997), 657, 682. 3 Laurent Lucchini/Michel Voelckel, Droit de la mer, vol. 1 (1990); Tullio Treves, Rapport Ge ´ne´ral, Revue de l’INDREMER 3 (1995), 71, 86. 4 Budislav Vukas, The Mediterranean: An Enclosed or Semi-Enclosed Sea?, in: Budislav Vukas (ed.) The Legal Regime of Enclosed or Semi-Enclosed Seas: The Particular Case of the Mediterranean (1988), 49, 64. 5 See, e. g., the provisions set up by the Montreux Convention Regarding the Regime of the Straits in regard to the Black Sea and its straits. 2

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management terms. The issues in paragraphs (a) to (d) concern the coordination of technical management and the provision of organizational and policy frameworks. 3 Since Arts. 122 and 123 are considered to be of a non-obligatory nature, they are rarely invoked in practice. In some instances States even decline to use Arts. 122 and 123 as a legal basis for exercising jurisdiction, possibly out of fear as to possible restrictions of the exercise of State sovereignty.6 The potential of the provisions has not yet been fully explored, though both provisions could be helpful in finding solutions to conflicts when neighbourly nonagreed environmental or fisheries related practices are in dispute. The provisions identify the players (States bordering enclosed or semi-enclosed seas), they offer instruments (direct or institutionalized cooperation) and they facilitate the involvement of regional or international organizations. Art. 123 could also hint at the right direction when it comes to the need of cooperation in sensitive or disputed maritime areas.7

II. Historical Background 4

The cooperation of States bordering enclosed or semi-enclosed seas (Art. 123) was dealt with in parallel with the definition laid down in Art. 122 by both the Sea-Bed Committee and the negotiators at UNCLOS III. The articles were discussed in the Second Committee of the Sea-Bed Committee. At the beginning, there were no specific proposals on this subject. Enclosed and semi-enclosed seas were only mentioned in the context of discussions dealing with the breadth of the territorial sea. Turkey and Uruguay put forward proposals envisioning cooperation between States in determining the breadth of the territorial sea in enclosed and semi-enclosed seas.8 At the second session of UNCLOS III in 1974, Iraq made a more specific proposal: ‘Management, conservation, exploration and exploitation of marine living resources in semienclosed seas beyond the territorial sea shall be undertaken by the riparian States in such areas through the regional arrangements, taking into account the activities of international organizations concerned in these fields. In those areas, the preservation of the marine environment and the control of pollution shall be managed jointly among the riparian States.’9

Arts. 1 and 4 of the same Iraqi proposal also made reference to the freedom of navigation which should be enjoyed by ships of all States ‘in straits connecting two parts of the high seas, whether they are open seas or semi-enclosed seas’ as well as ‘in semi-enclosed seas which constitute part of the high seas.’10 The Iraqi proposal also referred directly to activities which were to be coordinated among States in enclosed and semi-enclosed seas. The proposal mentioned the preservation and protection of the marine environment and activities related to the management and exploitation of renewable resources under regional arrangements. 11 6 All the proposals were reflected in Arts. 223 and 225 of the Main Trends Working Paper. 12 At the third session (1975), an informal consultative working group formulated ideas which 5

6 William V. Dunlap, The Arctic Ocean and the Regime of Enclosed and Semi-Enclosed Seas, in Gerald Blake et al. (eds.), International Boundaries and Environmental Security (1997), 105, 114. He mentions the example of the regulation of fisheries in the High Seas of the Bering Sea. 7 Cf. Yu ¨ cel Acer, A Proposal for a Joint Maritime Development Regime in the Aegean Sea, JMLC 37 (2006), 1, 10. 8 Sea-Bed Committee, Turkey: Draft Article under 2.3.2. Breadth of the Territorial Sea; Global or Regional Criteria; Open Seas and Oceans, Semi-enclosed Seas and Enclosed Seas, UN Doc. A/AC.138/SC.II/L.16 (1973), 32; Sea-Bed Committee, Uruguay: Draft Articles on the Territorial Sea, UN Doc. A/AC.138/SC.II/L.24 (1973), 33. 9 Second Committee UNCLOS III, Iraq: Draft Articles on Enclosed and Semi-Enclosed Seas, UN Doc. A/ CONF.62/C.2/L.71 and Add.1–2 (1974), OR III, 236 (Article 2). 10 Ibid., 236 (Articles 1, 4). 11 Ibid., 236 (Article 3). 12 UNCLOS III, Statements of Activities of the Conference During its First and Second Sessions, UN Doc. A/ CONF.62/L.8/Rev.1 (1974), OR III, 93, 107, 138.

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were taken into account and consolidated in Arts. 134 and 135 of the new Informal Single Negotiating Text (ISNT) Part 2,13 which read: ‘States bordering enclosed or semi-enclosed seas shall co-operate with each other in the exercise of their rights and duties under the present Convention. To this end they shall, directly or through an appropriate regional organization: (a) Co-ordinate the management, conservation, exploration and exploitation of the living resources of the sea; (b) Co-ordinate the implementation of their rights and duties with respect to the preservation of the marine environment; (c) Co-ordinate their scientific research policies and undertake when appropriate joint programmes of scientific research in the area; (d) invite, as appropriate, other interested States or international organizations to co-operate with them in furtherance of the provisions of this article.’

This set out, for the first time, the four main fields of activities in which States should cooperate, stating: ‘The provisions of this part shall not affect the rights and duties of coastal or other States under the present Convention and shall be applied in a manner consistent with these provisions.’ 14

At the fourth session (1976), Demark, Finland, Iraq, Turkey and the United Arab Emirates 7 introduced new proposals, one element amongst them being the need to preserve the freedom of international navigation in semi-enclosed seas.15 Informal negotiations resulted in a new Art. 130 in the Revised Single Negotiating Text (RSNT) Part II, 16 the major change being the conversion of the word ‘shall’ into ‘should’. In his introduction to the text, the Chairman of the Second Committee, A. AGUILAR, noted: ‘On the issue of enclosed and semienclosed seas, I have responded to the expressions of dissatisfaction with the provisions […] by making less mandatory the co-ordination of activities in such seas.’ 17 By replacing mandatory terms contained in the previous version such as ‘shall cooperate’ and ‘shall directly co-ordinate’ by ‘should co-operate’ and ‘shall endeavour to […] coordinate’, the new text converted the language of strict obligation into a language of exhortation and made it acceptable to States which were not in favour of binding language. 18 None of the large number of formal and informal proposals put forward during the sixth 8 (1977) and seventh (1978) sessions were accepted, including proposals from a group of five (Algeria, Iraq, Libyan Arab Jamahiriya, Romania and Turkey) and the Islamic Conference of Foreign Ministers.19 At the ninth session, the Federal Republic of Germany made an informal suggestion that Part IX should be deleted in its entirety.20 This suggestion was not accepted by other States21, nor was the Korean proposal to replace the word ‘should’ once again with 13 UNCLOS III, Informal Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/PART II (1975), OR IV, 152, 171. 14 Ibid. 15 UNCLOS III, Iraq: Chapter IX: Semi-Enclosed Seas (1977, mimeo.), reproduced in: Renate Platzo ¨ der (ed.), Third United Nations Conference on the Law of the Sea: Documents, vol. IV (1983), 484 (Article 130); UNCLOS III, Turkey: Enclosed or Semi-Enclosed Seas (1977, mimeo.), reproduced in: ibid., 487, 488 (Article 132); UNCLOS III, Finland: Enclosed or Semi-Enclosed Seas (1977, mimeo.), reproduced in: ibid., 485 (Article 129); UNCLOS III, United Arab Emirates: Enclosed and Semi-Enclosed Seas (1976, mimeo.), reproduced in: ibid., 354 (Article 133); UNCLOS III, Denmark: Enclosed and Semi-Enclosed Seas (1976, mimeo.), reproduced in: ibid., 355 (Article 134). 16 UNCLOS III, Revised Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/Rev.1/Part II (1976), OR V, 151, 172. 17 Ibid., 154. 18 Ibid., 172. 19 UNCLOS III, Informal Suggestion by Algeria et al., UN Doc. C.2/Informal Meeting/13 (1978), reproduced in: Renate Platzo¨der (ed.), Third United Nations Conference on the Law of the Sea: Documents, vol. V (1984), 24; UNCLOS III, Informal Suggestion by Algeria et al., UN Doc. C.2/Informal Meeting/18/Rev. 1 (1978), reproduced in: ibid., 25. 20 UNCLOS III, Informal Proposal by the Federal Republic of Germany, Part IX, Enclosed and Semi-enclosed Seas, UN Doc. C./Informal Meeting/61 (1980), reproduced in: ibid., 64. 21 See Winkelmann on Art. 122.

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‘shall’. The text then remained unchanged, albeit with one drafting amendment, before it was incorporated into the second revision of the ISNT and then the final Convention. 9 The genesis of Art. 123 demonstrates that fisheries, freedom of navigation, the nature of the coordination and the rights and duties of third maritime States were at the heart of the discussions. The least one can deduce from the discussions is that the negotiators of the Convention recognized: ‘that the special geographical situation of enclosed and semi-enclosed seas requires cooperation among the States bordering them to coordinate their activities, in particular with regard to the matters listed in subparagraphs (a) to (d)’22.

III. Elements 1. ‘States bordering an enclosed or semi-enclosed sea should cooperate with each other’ 10

In its introductory paragraph, Art. 123 generally encourages cooperation among coastal States of enclosed or semi-enclosed seas. This encouragement of regional cooperation is also reflected in other parts of the Convention, for instance in Art. 197 which calls for ‘cooperation on a global basis and, as appropriate, on a regional basis’ in the field of protection and preservation of the marine environment. Art. 123 lists the fields in which cooperation is encouraged in four enumerated paragraphs (a) to (d). This list is exclusive but does not stand in the way of extending the cooperation of bordering States beyond the list if they so wish. 23

2. ‘coordinate the management, conservation, exploration and exploitation of the living resources of the sea’ 11

Coordination activities undertaken under Art. 123 (a) concern the sovereign rights which Art. 56 of the Convention grants to coastal States in their exclusive economic zones (EEZ). 24 Non-living resources on the sea-bed and its subsoil are not mentioned and are therefore not covered by the exhortation to cooperate as laid down in Art. 123 (a). Its main field of application is fisheries. Art. 123 (a) does not affect the rights and duties of coastal States laid down in the provisions on the EEZ. Neither does it alter specific duties of States on the high seas, such as those laid out in Arts. 117 and 118. Both provisions establish cooperation duties related to the conservation and the management of living resources on the high seas. 25 These duties go hand in hand with the request for cooperation enshrined in Art. 123 (a) and exist independently of Art. 123. They remain of an obligatory nature, untouched by Art. 123. Where the Convention sets limits on the freedom to fish on the high seas (e. g. Arts. 87, 116 (b)), these limits take also effect in the high sea pockets in enclosed and semi-enclosed seas. Thus, Art. 123 does not grant littoral States special rights over stocks in high seas pockets. 26

3. ‘coordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment’ 12

Art. 123 (b) reflects Art. 192, which creates a general obligation for (all) States to protect and preserve the marine environment.27 In implementing this obligation, States bordering 22 Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995), 365 (MN. 123.12(a)). 23 E. g. setting up traffic separation schemes or establishing sea lanes. 24 See Proelss on Art. 56 MN 8–19. 25 See Rayfuse on Arts. 117 and 118. 26 Lourene Miovski, Solutions in the Convention on the Law of the Sea to the Problem of Overfishing in the Central Bering Sea: Analysis of the Convention, Highlighting the Provisions Concerning Fisheries and Enclosed and Semi-Enclosed Seas, San DiegoLRev 26 (1989), 525, 558–559. 27 See Czybulka on Art. 192.

890

Winkelmann

Cooperation of States bordering enclosed or semi-enclosed seas

13–16

Art. 123

enclosed or semi-enclosed seas shall coordinate amongst themselves. Art. 197 requires States ‘to cooperate on a global basis’ to this end (using the verb ‘shall’), but modifies this requirement when it comes to regional cooperation (‘as appropriate’). 28 This modification takes into account the non-obligatory nature of coordination as contained in Arts. 122 and 123. Moreover, while Art. 197 refers to ‘cooperation’, Art. 123 (b) speaks of ‘coordination’. Thus, Art. 123 (b) will also have to be interpreted in such a way that it requests States bordering enclosed or semi-enclosed seas to make sure that the implementing measures they take to honour their obligations stemming from Art. 192 do not contradict measures taken by other coastal States.

4. ‘coordinate their scientific research policies and undertake where appropriate joint programmes of scientific research in the area’ Art. 123 (c) includes both ‘marine scientific research’ and scientific research. The word 13 ‘area’ refers to enclosed or semi-enclosed seas, 29 as opposed to references to ‘the Area’ elsewhere in the Convention which refer to ‘the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction’ (�Art. 1 (1)). Marine scientific research is subject to a number of relevant provisions under the Convention: �Art. 56 (when undertaken in an EEZ), �Art. 77 (1) (when undertaken to explore and exploit natural resources on the continental shelf), �Art. 87 (when undertaken on the high seas). Part XIII governs the general regime for marine scientific research. The coordination in Art. 123 (c) extends to ‘policies’ but not to concrete measures. Joint scientific programmes shall be coordinated ‘when appropriate’.

5. ‘invite, as appropriate, other interested States or international organizations to cooperate with them in furtherance of the provisions of this article’ Art. 123 (d) is formulated in a particularly cautious manner. At the very least it can be read 14 as a recognition that third States or international organizations may have an interest in the activities listed in Art. 123. An interested State or international organization might rely on Art. 123 (d) if it is seeking to become involved in activities within enclosed or semi-enclosed seas dealing with living resources, the marine environment or scientific research. By the same token, if non-littoral States choose not to participate in activities, although they are invited, littoral States remain free to coordinate their management without them. In the case of fisheries, schemes by coastal States to conserve fish stocks would also extend to the high sea pockets of the enclosed or semi-enclosed sea.30 Non-living resources, such as hydrocarbons, on the continental shelf are not a matter for 15 coordination as envisaged by Art. 123, though specific marine scientific programmes (Art. 123 (c)) that do not touch upon the exploitation of non-living resources may be the object of coordination. Police and security matters are also not an object of cooperation with regards to enclosed or semi-enclosed sea, although some scholars read this into the provision.31 Art. 123 (a) to (d) does not refer to these issues, which are often crucial for fruitful neighbourly relations among coastal States. Reading sovereignty-related areas such as police and security into the area of application covered by Art. 123 (a) to (d) would likely go beyond the purpose the negotiators of the provision had in mind. A number of international organizations have established regional policies dealing with the 16 activities covered by Art. 123. The most prominent of these are the Food and Agriculture 28

See Stephens on Art. 197 MN 12–15. Nordquist/Nandan/Rosenne (note 22), 368 (MN 123.12(f)). 30 Cf. Miovski (note 26), 561. 31 Cf. Dumitru Mazilu, Peace and Security and Some Problems Regarding the Enclosed or Semi-Enclosed Seas (1985), 437; Nien-Tsu Alfred Hu, South China Sea: Troubled Waters or a Sea of Opportunity?, ODIL 41 (2010), 203, 210. 29

Winkelmann

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Art. 123

17–19

Part IX. Enclosed or semi-enclosed seas

Organization of the United Nations (FAO), the United Nations Environmental Programme (UNEP) and the International Maritime Organization (IMO). 17 Cooperation through international organizations was a reality long before the discussions at UNCLOS III took place. For example, the General Fisheries Commission for the Mediterranean was established by FAO in 1949. The Regional Seas Programme (RSP) of the United Nations Environmental Programme (UNEP) also dates from 1974. Today, UNEP alone lists 16 Regional Seas Conventions and Action Plans worldwide to implement the Global Programme of Action for the protection of the Marine Environment from Land-based Activities (GPA)32. Out of the eleven major Regional Seas Conventions, six came into force after 198233. After the adoption of the GPA in 1995, UNEP reinforced its activities to protect the marine environment through comprehensive agreements with more than 140 participating countries. The IMO provides for stricter protection regimes for ‘special regions’ including the Baltic Sea, the Mediterranean, the Oman Gulf, the Persian Gulf and the Red Sea. 18 Activities of the UNEP, the FAO and others may include enclosed and semi-enclosed seas but are not limited to such seas. ‘Regional’ cooperation has always gone beyond the categories that are included in Arts. 122, 123. 19 Individual littoral States are cooperating with one another in an increasing number of enclosed and semi-enclosed seas. The Baltic Sea States, for example, agreed in 1973 on a Convention on the Protection of the Marine Environment of the Baltic Sea, establishing the Baltic Sea Fishery Commission. In 1974, the Convention on the Protection of the Marine Environment of the Baltic Sea Area was signed. In the Black Sea, fishing issues led to an Agreement and a Convention in the late 1950s. The Convention on the Protection of the Black Sea Against Pollution includes a Secretariat and has produced numerous protocols, programmes and action plans since 199234. In the North Sea, bordering States agreed upon cooperation in combating oil pollution (1969/1972). They drew up the Convention on Civil Responsibility for Damage ensuing from Oil Pollution caused by the Exploration and Exploitation of Mineral Resources (1977). As early as 1949, the States bordering the Mediterranean Sea had agreed to protect living resources through a General Fisheries Council for the Mediterranean. In 1976, they concluded the Barcelona Convention for the Protection of the Mediterranean Sea against Pollution with a number of related Protocols.

32 33 34

892

Ellik Adler, A World of Neighbours: UNEP’s Regional Seas Programme, Tropical Coast (2003), 4, 14. UNEP, Ecosystem-based Management of Fisheries, Regional Seas Reports and Studies 175 (2001), 10. Cf. UNEP, Regional Seas Partnerships for Sustainable Development (2005), 17.

Winkelmann

PART X RIGHT OF ACCESS OF LAND-LOCKED STATES TO AND FROM THE SEA AND FREEDOM OF TRANSIT Article 124 Use of Terms 1. For the purposes of this Convention: (a) ‘land-locked State’ means a State which has no sea-coast; (b) ‘transit State’ means a State, with or without a sea-coast, situated between a landlocked State and the sea, through whose territory traffic in transit passes; (c) ‘traffic in transit’ means transit of persons, baggage, goods and means of transport across the territory of one or more transit States, when the passage across such territory, with or without trans-shipment, warehousing, breaking bulk or change in the mode of transport, is only a portion of a complete journey which begins or terminates within the territory of the land-locked State; (d) ‘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. 2. Land-locked States and transit States may, by agreement between them, include as means of transport pipelines and gas lines and means of transport other than those included in paragraph 1. Bibliography: Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999); Samuel P. Menefee, ‘The Oar of Odysseus’: Land-locked and ‘Geographically Disadvantaged’ States in Historical Perspective, CWILJ 23 (1992), 1–65; Pierre Raton, Les enclaves, AFDI 4 (1958), 186–195; A. Mpazi Sinjela, Freedom of Transit and the Right of Access for Land-Locked States: The Evolution Of Principles And Law, Ga. J. Int’l & Comp. L. 12 (1982), 31–52; Louis B. Sohn/Kristen Gustafson, The Law of the Sea in a Nutshell (1984); Paul Tavernier, Les nouveaux Etats sans littoral d’Europe et d’Asie et l’acce`s a` la mer, RGDIP 97 (1993), 727–744 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘land-locked State’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘transit State’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘traffic in transit’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. ‘means of transport’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. ‘pipelines and gas lines and means of transport other than those included in paragraph’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 9 9 10 11 13 16

I. Purpose and Function Art. 124 is the first article in Part X of the Convention entitled ‘Right of Access of Land- 1 Locked States to and from the Sea and Freedom of Transit’. The article serves to define terms used in this part,1 and elsewhere in the Convention, in relation to land-locked States (LLS), their right of access to the sea, and freedom of transit through ‘transit States’. The purpose of 1 Although Art. 124 (1) states that the terms are defined for the purposes of the Convention, only the term ‘land-locked State’ appears in other parts of the UNCLOS, with the other definitions then being technically limited to Part X.

Uprety/Maggio

893

Art. 124

2–4

Part X. Right of access of land-locked States

this article is, foremost, to establish clarity about terms used here so that the scope of the rights and obligations is unambiguous. 2 Art. 124 defines LLS as States which have no sea-coast. There are currently forty-four LLS. 2 By virtue of the fact that they do not possess a coastline, their access to the oceans is always indirect, as they have to rely on transit through the territory of other States. 3 Among LLS, there are also States that are entirely surrounded by the territory of only one other State, defined by PIERRE RATON as ‘enclaves’.4 3 Art. 124 defines ‘transit State’ as a State, with or without a sea-coast, situated between a land-locked State and the sea, through whose territory traffic in transit passes. 5 Traffic in transit is defined as the transit of persons, baggage, goods, and means of transport across the territory of transit states, with or without transhipment, warehousing, breaking bulk, or change in the mode of transport where only a portion of a journey begins or terminates within the territory of the LLS.6 This definition emphasises that the right of access to the sea triggers rights and obligations involving at least two States: one land-locked and one (or more) transit,7 through which the right to access can be enjoyed. As a result, equilibrium between the rights and interests of the two categories of States has to be established, 8 and this forms part of the function of this article, and Part X as a whole.

II. Historical Background 4

The ‘right of access to and from the sea’ was historically a highly disputed topic. 9 Thus, it is not surprising that the definitions which formed the basis of the right were similarly contested throughout the evolution of the regime of freedom of transit for LLS in international law. As early as 1921, the first multilateral agreement addressing this issue, the Statute on Freedom of Transit adopted by the Convention of Barcelona (the Barcelona Statute), was adopted. 10 The Statute presented several limitations as regards the definition of ‘means of transport’, which only included rail and waterway transit;11 this was arguably eurocentric in focus12 and failed ‘to take sufficient focus of land-locked countries in the new world.’13 The Statute enumerated ‘traffic in transit’ to include vessels, ships, vehicles, wagons, and ‘other means of transport’. 14 2 The list has been changing constantly. But as of 2013, there are 44 LLS. Botswana, Burkina Faso, Burundi, Central African Republic, Chad, Ethiopia, Lesotho, Malawi, Mali, Niger, Rwanda, Swaziland, Uganda, Zambia, South Sudan and Zimbabwe in Africa; Afghanistan, Azerbaijan, Bhutan, Kazakhstan, Kyrgyzstan, Laos, Mongolia, Nepal, Tajikistan, Turkmenistan, and Uzbekistan in Asia (some studies even include the West Bank, which for purposes of this study, is excluded); Andorra, Armenia, Austria, Belarus, Czech Republic, Vatican City (Holy See), Hungary, Liechtenstein, Luxembourg, Macedonia, Moldova, San Marino, Serbia, Slovakia and Switzerland in Europe; and Paraguay and Bolivia in South America. For detail, see World Bank Atlas (2013); for an excellent and thorough historical description of LLS, see Samuel P. Menefee, ‘The Oar of Odysseus’: Land-locked and ‘Geographically Disadvantaged’ States in Historical Perspective, CWILJ 23 (1992), 1–65. 3 Some authors have also provided the following definition: ‘Land-locked States are States which do not border open, enclosed or semi-enclosed seas.’ See Louis B. Sohn/Kristen Gustafson, The Law of the Sea in a Nutshell (1984), 129. 4 Pierre Raton, Les enclaves, AFDI 4 (1958), 186. For instance, the Vatican and San Marino, both within Italian territory, and the Kingdom of Lesotho, within South Africa, are enclaves. 5 See Art. 124 (1)(b). 6 Art. 124 (1)(c). 7 Though the transit States may themselves be LLS, see supra, MN 2. 8 See Paul Tavernier, Les nouveaux Etats sans littoral d’Europe et d’Asie et l’acce `s a` la mer, RGDIP 97 (1993), 735. 9 See Uprety/Maggio on Art. 125 MN 3–24. 10 Statute on Freedom of Transit adopted by the Convention of Barcelona, 20 April 1921, LNTS 7, 11 (Barcelona Statute). 11 Art. 2 Barcelona Statute. 12 A. Mpazi Sinjela, Freedom of Transit and the Right of Access for Land-Locked States: The Evolution of Principles and Law, Ga. J. Int’l & Comp. L. 12 (1982), 31, 37. 13 Ibid. 14 Art. 1 Barcelona Statute, see infra for discussions.

894

Uprety/Maggio

Use of Terms

5–8

Art. 124

At UNCLOS I, LLS achieved their first recognition in a multilateral treaty in relation to the law of the sea. Art. 3 of the 1958 Convention on the High Seas, adopted by the Conference, governs the right of access of ‘States having no sea coast’ to the high seas. The Convention does not expressly define terms in relation to this article, and refers to transit States as ‘States situated between the sea and a State having no sea coast.’15 In 1965, the United Nations Conference on Trade and Development adopted the Convention on Transit Trade of Land-locked States (the New York Transit Convention), the first multilateral Convention devoted exclusively to the issue of LLS, transit and access to the sea.16 This Convention, in its definition of ‘traffic in transit’, excluded persons from its scope of application.17 The ‘means of transport’ within its purview included ‘any railway stock, seagoing and river vessels and road vehicles’18, as well as ‘where the local situation so requires porters and pack animals.’19 The New York Transit Convention relegated any ‘other means of transport,’ including pipelines and gaslines, to bilateral agreements. 20 Finally, it required that measures regulating and forwarding traffic taken by contracting States should aim at facilitating transit traffic on mutually acceptable routes.21 As few transit States became party to this Convention, its practical impact was limited.22 At the Sea-Bed Committee, a group of 7 LLS came together and put forward a proposal which contained definitions very similar to those in the present Art. 124,23 with the major difference being the inclusion of a separate definition of ‘persons in transit’. The definitions in the text submitted to the Sea-Bed Committee were based on the Barcelona Statute and New York Transit Convention.24 At UNCLOS III, this text was largely reproduced in an informal proposal by Paraguay to the Second Committee,25 and appeared unchanged in the Informal Single Negotiating Text Part II.26 Only minor drafting amendments were then made, before the article was finally adopted.27 At UNCLOS III, the main points of contention regarding what was to become Art. 124 were in relation to the inclusion of ‘civil aircraft’ in the definition of ‘means of transit’, and how the article treated gas and pipelines. Some LLS, and particularly Lesotho due to its ‘unique geographical (and political) isolation’,28 felt that the inclusion of civil aircraft in the

15

Art. 3 (1) Convention on the High Seas. Convention on Transit Trade of Land-locked States, 8 July 1965, UNTS 597, 3. 17 Art. 1 (b) New York Transit Convention. According to Art. 1 (d), means of transport included: (i) any railway stock, sea-going and river vessels and overland vehicles; (ii) where the local situation so requires, porters and pack animals; and (iii) if agreed upon by contracting states concerned, other means of transport as well as pipelines and gaslines, when they are used for traffic in transit. See infra for discussions. 18 Art 1 (d)(iii) New York Transit Convention. 19 Art. 1 (d)(ii) New York Transit Convention. 20 Art. 1 (d)(iii) New York Transit Convention. 21 Art. 2 (1) New York Transit Convention. 22 Though 20 of the 36 States parties were LLS, only 9 of them bordered transit States which were also party to the Convention. See Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd edn. 1999), 443; Mpazi Sinjela (note 12), 43. 23 Sea-Bed Committee, Draft Articles Relating to Land-Locked States Submitted by Afghanistan et al., UN Doc. A/AC.138/93 (1973), 2. 24 Though the definition of ‘traffic in transit’ was wider, see: Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995), 402 (MN 124.3); Second Committee UNCLOS III, Afghanistan et al.: Explanatory Paper on the Draft Articles Relating to Land-Locked States in Document A/AC.138/93, UN Doc. A/CONF.62/C.2/L.29 (1974), OR III, 206, 208 (A. Fundamental Principles). 25 Omitting the definition of ‘persons in transit’, see: Second Committee UNCLOS III, Paraguay: Working Paper on Land-Locked Countries (1975, mimeo.), reproduced in: Renate Platzo¨ der (ed.), Third United Nations Conference on the Law of the Sea: Documents, vol. IV (1983), 189. 26 UNCLOS III, Informal Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/PART II (1975), OR IV, 152, 168 (Article 108). 27 Nordquist/Nandan/Rosenne (note 24), 405. 28 Ibid., 403. 16

Uprety/Maggio

895

5

6

7

8

Art. 124

9–11

Part X. Right of access of land-locked States

definition of means of transit was essential and made proposals to that effect. 29 However, following an appeal from President KOH regarding the integrity of the Convention as a whole,30 the amendment was not pressed to a vote.31 It was thought that the proposed inclusion of ‘civil aircraft’ or other aviation means of transport could conflict with existing international regulations on civil aviation.32 A proposal that gas and pipelines, included in the scope of ‘means of transport’ covered by the Convention, not be subject to bilateral agreements was made by Afghanistan33, but the proposal was not accepted.

III. Elements 1. ‘land-locked State’ 9

LLS are defined by Art. 124 for the purposes of the Convention as a whole as States which have no sea-coast. The term land-locked State is used in various other provisions 34 in the Convention, as is the phrase ‘whether coastal or land-locked’35. There are currently 26 LLS party to the UNCLOS.36

2. ‘transit State’ 10

Transit States are defined as States ‘with or without a sea-coast, situated between a landlocked State and the sea, through whose territory traffic in transit passes.’ This definition expressly includes LLS themselves, as for some LLS access to the sea may only be practicable through the territory of another LLS, despite bordering a State with a sea coast. 37 Further, some LLS only border other LLS, and therefore their access sea may only be made through the territory of other LLS first, followed by a transit State with a sea coast. 38

3. ‘traffic in transit’ 11

The term ‘traffic in transit’ is defined by Art. 124 (1)(c) for the purposes of the Convention, but is used specifically in Arts. 127 (1), 128, 130 (1) of Part X. The definition refers to ‘transit of persons, baggage, goods and means of transport across the territory of one or more transit States, when the passage of across such territory […] is only a portion of a complete journey which begins or terminates within the territory of the land-locked State.’ This definition of traffic in transit is uncontroversial, simply dictating that goods, persons, 29 Second Committee UNCLOS III, Botswana et al: Amendments to Document A/AC.138/93, UN Doc. A/ CONF.62/C.2/L.45/REV.1 (1974), OR III, 221; UNCLOS III, Lesotho: Amendments, UN Doc. A/CONF.62/L.99 (1982), OR XVI, 217; UNCLOS III, 171st Plenary Meeting, UN Doc. A/CONF.62/SR.171 (1982), OR XVI, 106 (para. 10). 30 UNCLOS III, 175th Plenary Meeting, UN Doc. A/AC.162/SR.175 (1982), OR XVI, 131 (para. 1). 31 Ibid., 131 (para. 4). 32 Nordquist/Nandan/Rosenne (note 24), 407. 33 Second Committee UNCLOS III, Afghanistan: Articles 108–112 (1977, mimeo.), reproduced in: Platzo ¨ der (note 25), 330. 34 Arts. 69, 148. 35 For example, see Art. 87 (1) in relation to freedoms of the high seas enjoyed by ‘all States, whether coastal or land-locked’. 36 UN OHRLLS, UNCLOS and Landlocked Developing Countries: Practical Implications: Summary Report (2012), 2. 37 For example, though South Sudan (an LLS) borders Sudan (a coastal State), it may be more practical for traffic in transit originating in certain areas of South Sudan to access the sea through the territory of first Ethiopia (itself an LLS) and then Somalia/Eritrea (coastal States). It should be noted that of these States, only Sudan and Somalia are parties to the Convention. 38 There are two such States currently: Lichtenstein, which is bordered by only Austria and Switzerland; and Uzbekistan, which is bordered by Afghanistan, Kazakhstan, Kyrgyzstan, Tajikistan and Turkmenistan. However, neither are presently parties to the Convention.

896

Uprety/Maggio

Use of Terms

12–16

Art. 124

baggage or means of transport cannot themselves be destined for the transit State, but are merely passing through on route to or from the LLS in question. The article further expands that this transit can occur ‘with or without trans-shipment, 12 warehousing, breaking bulk or change in the mode of transport’, indicating that the possible requirement of traffic in transit to undertake one of these actions does not change the nature of the transit. Similar definitions can be found in specific transit agreements between States. 39

4. ‘means of transport’ Art. 124 (1)(d) enumerates the ‘means of transport’ covered by Part X of the Convention. 13 The term includes ‘railway rolling stock, sea, lake and river craft and road vehicles’, as well as ‘where local conditions so require, porters and pack animals.’ Similar wording is often used in bilateral or regional transit agreements. For example, in 14 the 1985 Northern Corridor Transit Agreement40 between Burundi, Kenya, Rwanda, Uganda and Zaire (presently renamed Democratic Republic of Congo), means of transport is defined as ‘[a] particular vehicle, railway wagon, vessel or other device used for the transport of goods or persons, including – where the local situation so requires – porters and pack animals.’ 41 As outlined above42 the proposed inclusion of civil aircraft in the definition of ‘means of 15 transport’ was debated at UNCLOS III, but was not included as ‘the view was expressed in the negotiations that new rules on air traffic would conflict with the existing complicated regulations governing international civil aviation.’43 The possibility of including civil aircraft within the scope of ‘means of transport’, by way of agreement between LLS and transit States, is possible by virtue of Art. 124 (2). Regulations relating to transit by means of aircraft are explicitly covered, for example, by the Protocol to the Transit Agreement between Nepal and Bangladesh.44 Further, the Almaty Programme of Action45 includes a subsection on specific actions required to improve air transport as a means of transport, as it ‘offers landlocked developing countries a means of avoiding the transit problems associated with overland and overseas freight movements.’46

5. ‘pipelines and gas lines and means of transport other than those included in paragraph’ Due to their unique nature, there continues to be prevailing doubt amongst scholars and 16 practitioners in connection with the definition pertaining to the status of the transportation of petroleum through pipelines or gas through gas lines. But, with the language of the definition 39 For example, see Art. III Treaty of Transit Between His Majesty’s the Government Of Nepal and the Government of India 1999, available at: http://www.tepc.gov.np/tradeagreement/Treaty%20of%20Trade%20 and%20Transit%20Final.pdf, 4. 40 Northern Corridor Transit Agreement, February 1985, available in World Bank, Facilitation of Transport and Trade in Sub-Saharan Africa: A Review of International Legal Instruments, SSATP Working Paper No. 73 (2004), Annex V – I or DJI 7, 169. The text of the amended 2007 Northern Corridor Transit Agreement is available on website of Northern Corridor Transit Transport Coordination Authority: http://www.ttcanc.Org/ Documents.Php. 41 Art. 2 1985 Northern Corridor Transit Agreement. 42 See supra, MN 8. 43 Nordquist/Nandan/Rosenne (note 24), 407. 44 Art. III (C) Protocol to the Transit Agreement between His Majesty’s Government of Nepal and the Government of the People’s Republic Of Bangladesh, available at: http://www.tepc.gov.np/tradeagreement/Treaty%20of%20Trade%20and%20Transit%20Final.pdf, 151. 45 See Uprety/Maggio on Art. 125 MN 34; UN, Report of the International Ministerial Conference of Landlocked and Transit Developing Countries and International Financial and Development Institutions on Transit Transport Cooperation, UN Doc. A/CONF.202/3 (2003), 10 (Annex I, 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). 46 Almaty Programme of Action (note 45), 17.

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Part X. Right of access of land-locked States

in Art. 124, pipelines and gas lines, like all other means of transport, 47 may be included as a means of transport, although modalities of implementation are to be agreed separately by the States concerned. The Almaty Programme of Action specifically encourages States to ‘cooperate and coordinate’ in the construction of pipelines ‘along the most cost-effective and most suitable or shortest routes.’48 17 Any agreements concluded pursuant to Art. 124 (2) constitute a lex specialis to the Convention and are governed by the rules in Art. 311.49

Article 125 Right of access to and from the sea and freedom of transit 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 land-locked 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. Bibliography: Dominique Carreau/Patrick Juillard/Thie´baut Flory, Droit international economique (3rd edn. 1990); Abram Chayes/Anonia H. Chayes, The New Sovereignty; Compliance With International Regulatory Agreements (1995); Georg Crusen, Les servitudes internationales, in Hague Academy of International Law, Collected Courses, vol. XXII (1928); Guy Feuer, Reflexions sur la charte des droits et devoirs e´conomiques des Etats, RGDIP (April-June 1975), 295; Thomas M. Franck/Mohamed E. Beradei/George Aron, The New Poor: Landlocked, Shelf-locked and Other Geographically Disadvantaged States, New York University Journal of International Law and Politics 7 (1974), 37–53; Martin. I. Glassner, Access to the Sea for Developing LandLocked States (1970); Vijay C. Govindaraj, Geographically Disadvantaged States and the Law of the Sea, in Ram P. Anand (ed.), Law of the Sea: Caracas and Beyond: Development in International Law (1978), 3; Andre´s Guzma´n Escobari, Bolivia’s Reasonably Strong Case against Chile, Opinio Juris Blog 21 March 2014, available at: http://opiniojuris.org/2014/03/21/bolivias-reasonably-strong-icj-case-chile/; Gerhard Hafner, Land-Locked States, MPEPIL, available at: www.mpepil.com; Francis H. Hinsley, Sovereignty (2nd edn. 1986); Charles C. Hyde, International Law, Chiefly as Interpreted by the United States, vol. I (1948); Charles C. Hyde, Notes on Rivers and Navigation in International Law, AJIL 4 (1910), 145–155; Julian Ku, Bolivia’s Ridiculously Weak ICJ Case Against Chile, Opinio Juris Blog 29 April 2013, available at: http://opiniojuris.org/2013/04/29/bolivias-ridiculously-weak-icj-case-against-chile/; Pierre Labrousse, Des servitudes en droit international (1911); Elihu Lauterpacht, Freedom of Transit in International Law, Grotius Society Paper, Transaction of the Grotius Society 44 (1958), 313–356; Loic Marion, Liberte´ de transit en droit international (1974); Sergio Marschisio, Servitudes, MPEPIL, available at: www.mpepil.com; Milenko Milic, Access of Land-locked States to and from the Sea, Case Western Reserve Journal of International Law 13 (1981), 501–516; Claude G. Palazzoli, De quelques de´veloppements re´cents du droit des gens en matie`re d’acce`s a la mer des pays de´pourvus de littoral, RGDIP 70 (1966), 667–735; Norman J. G. Pounds, A Free and Secure Access to the Sea, Annals of the Association of American Geographers 49 (1959), 256–268; Nguyen Quoc-Dinh/Patrick Dallier/Alain Pellet, Droit international public (4th edn. 1992); Helen D. Reid, Les servitudes internationales (1933); Paul Reuter, Le droit international des communications (1954); Amrit Sarup, Transit Trade of Land-locked Nepal, ICLQ 21 (1972), 287–306; George Scelle, Manuel de droit international public (1964), 382.; Marcel Sibert, Traite de droit international public: Le droit de la paix, vol. 1 (1951); Maurice-Rene´ Simmonet, La convention sur la haute mer (1966); A. Mpazi Sinjela, Freedom of Transit and the Right of Access for Land-Locked States: The Evolution of Principles and Law, Ga. J. Int’l & Comp. L. 12 (1982), 31–52; Joseph G. Starke, Introduction to International Law (1984); Abdul H. Tabibi, Free Access to the Sea for Countries without Sea Coast. Position of Afghanistan on this Question (1958); Abdul H. Tabibi, The Right of Free Access to the Sea (1966); Paul Tavernier, Les nouveaux Etats sans littoral d’Europe 47 48 49

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See supra, MN 15 regarding civil aviation. Almaty Programme of Action (note 45), 17. See Matz Lu¨ck on Art. 311.

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et d’Asie et l’acce`s a` la mer, RGDIP 97 (1993), 727–744; Nikolai A. Ushakov, International Law and Sovereignty, in: Grigorii Tunkin (ed.) Contemporary International Law (1969); Helmut Steinberger, Sovereignty, 10, in Encyclopaedia Of Public International Law (North Holland), 397–418; Stephen C. Vasciannie, Land-Locked and Geographically Disadvantaged States in the International Law of the Sea (1990); Charles de Visscher, Le droit international des communications (1921/1923) Cases: ICJ, Case concerning Right of Passage over Indian Territory (Portugal v. India), Merits, Judgment of 12 April 1960, ICJ Reports (1960), 6; ICJ, Case Concerning Right of Passage Over Indian Territory (Portugal v. India), Preliminary Objections, Judgment of 26 November 1957, ICJ Reports (1957), 125; ICJ, Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Application Instituting Proceedings or 24 April 2013, available at: http://www.icj-cij.org/docket/index.php?p1=3&p2=3&k=f3&case=153&code=bch&p3=0; PCIJ, S.S. Wimbledon Case (United Kingdom v. Japan), Judgment of 17 August 1923, PCIJ Series A (Judgments), No. 1 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Doctrines: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Freedom of Transit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Free Access and the Principle of Freedom of the Seas. . . . . . . . . . . . . . . . . . . . . . . . c) Right of Access as an International Servitude . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d) A Right Compensating for Geographical Inequalities . . . . . . . . . . . . . . . . . . . . . . . . 2. Specific Treaties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Freedom of Transit and Navigation and the Barcelona Statute . . . . . . . . . . . . . . b) Freedom of Transit for Trade: the Havana Charter and the GATT. . . . . . . . . . c) Reciprocity to Right of Access and the 1958 Convention on the High Seas . d) Free Access versus Territorial Sovereignty and the New York Transit Convention. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . e) The Sea-Bed Committee and UNCLOS III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘shall have the right of access to and from the sea’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. ‘for the purposes of exercising the rights provided for in this Convention’ . . . . . 3. ‘common heritage of mankind’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. ‘shall be agreed between land-locked States and transit States’ . . . . . . . . . . . . . . . . . . 5. ‘full sovereignty over their territory’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. ‘legitimate interests’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 4 4 6 9 10 11 12 14 16 20 25 31 31 35 37 38 42 43

I. Purpose and Function Art. 125 is the central provision in Part X of the Convention, entitled ‘Right of Access of 1 Land-Locked States to and from the Sea and Freedom of Transit’. The article contains the core ‘right of access’ for land-locked States (LLS) and its modalities of exercise, while also reemphasising the territorial sovereignty of transit States in protecting their legitimate interests with respect to this issue. The concept of free access to the sea rests at the juncture of two principles: ‘State sovereignty’ and ‘freedom of communication’1. With these principles as a backdrop, Art. 125 attempts to establish equilibrium between the principles of free access to the sea and territorial sovereignty. This attempt has resulted in some ambiguity and a number of general and specific restrictions within the provision to the right of access of LLS to and from the sea. Art. 125 (1) sets out the general right of access to and from the sea for the purposes of 2 exercising the rights provided elsewhere in the Convention. This paragraph grants freedom of transit for LLS, by all means of transit, through the territory of transit States. The following two paragraphs of Art. 125 place limitations on the exercise of the right granted to LLS. Art. 125 (2) provides that all terms and modalities of the freedom of transit be agreed between LLS and transit States separately, while Art. 125 (3) provides an exception, on the basis of sovereignty, for transit States to take all necessary measures in protecting their legitimate interests. 1 For the problem of transit of LLS and terrestrial communication, see Paul Reuter, Le droit international des communications (1954), 32.

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Part X. Right of access of land-locked States

II. Historical Background 3

The evolutionary history of the right of access shall be discussed in two segments: doctrinal sources and specific treaties. Opinions have long been divided on whether there is a general duty on the part of States to grant LLS a right of transit through their territory. Those opposed to the idea have argued that the freedom of transit was subordinated to the fundamental principle of ‘State Sovereignty’, that transit could not violate the sovereignty of the coastal State, and that the transit right of LLS was not a principle recognized by international law but rather emanated from agreements concluded with coastal States. 2 In that spirit, at UNCLOS I, the delegate of Pakistan opined that a State was not obligated to grant to others the ‘privilege’ of transit upon its territory.3 On the other hand, those supporting this general duty have argued that the theories such as the economic interdependence of States, or principles such as freedom of the high seas, offered a juridical basis for recognizing transit rights of LLS.

1. Doctrines a) Freedom of Transit. According to LAUTERPACHT, who acknowledged the legitimacy of LLS’ claims to a ‘the right of transit’, the existence of such right depended on two fundamental conditions. First, the State claiming the right of transit needed to justify its merits. Second, the exercise of the right could not cause disturbances nor prejudice to the transit State. LAUTERPACHT further confirmed that the Covenant of the League of Nations, the 1921 Convention and Statute on Freedom of Transit4 (the Barcelona Statute) and many similar instruments recognized the principle of free transit, and obligated transit States ‘to negotiate and conclude, on reasonable bases, transit agreements.’ 5 5 For CHARLES DE VISSCHER, freedom of transit in this context implied that transport should not encounter any obstacle, charge, or difficulty that would have been avoided if it had been entirely in one State. VISSCHER emphasized that the freedom of transit in the territory of a ‘neighbor-State’ could appear to be a matter of convenience from a coastal State’s perspective; however, for LLS it was not a question of convenience, but rather one of survival. Consequently, LLS could legitimately demonstrate a reason of necessity and obligate transit States to conclude an agreement.6 4

6

b) Free Access and the Principle of Freedom of the Seas. The principle of freedom of the high seas, enshrined in Art. 87 of the Convention, is granted to ‘all States, whether coastal or land-locked.’ In connection with the right of freedom of the high seas in a historical perspective, GEORGE SCELLE noted that the essential juridical norm was the freedom of use, 7 with a consequence being that it was also accessible for navigation for LLS. 8 Additionally, scholars emphasized the legitimacy of the right of LLS to free access to the sea in order that they have the ability to utilize this freedom.9 2 See, for instance, Charles C. Hyde, Notes on Rivers and Navigation in International Law, AJIL 4 (1910), 145, 151. 3 See the Declaration of the Delegates of Thailand, Pakistan and India, in UNCLOS I, Summary Records of Meetings and Annexes: Question of Free Access to the Sea of Landlocked Countries, UN Doc. A/CONF.13/43 (1958), OR VII, 26–27. 4 Barcelona Convention and Statute on Freedom of Transit, 20 April 1921, LNTS 7, 11 (Barcelona Statute). 5 Elihu Lauterpacht, Freedom of Transit in International Law, Grotius Society Paper, Transactions of the Grotius Society 44 (1958), 313, 332. 6 Charles de Visscher, Le droit international des communications (1924), 11. 7 Not only for navigation and trade, but also fishing, installing cables, scientific research etc., see George Scelle, Manuel de droit international public (1964), 382. 8 Ibid. 9 Marcel Sibert, Traite de droit international public: Le droit de la paix, vol. 1 (1951), 660; Norman J. G. Pounds, A Free and Secure Access to the Sea, Annals of the Association of American Geographers 49 (1959), 257;

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It has also been argued that the right of access to the sea of LLS can be seen as an extension 7 of the right of innocent passage through the territorial sea of coastal States. T ABIBI, then member of the International Law Commission, considered that: ‘[T]here is a strict relation between the right of innocent passage on land and sea. Recognizing the right of innocent passage in favor of LLS is the only means to render the principle of the freedom of seas effective for them.’10

TABIBI recommended the extension of the theory of the right of innocent passage to also apply on the territory of coastal States, quoting a number of international instruments to defend this view.11 He concluded that, for LLS, the right of innocent passage on the territorial sea and in the air is inviolable, and that, without it, the principle of freedom of the sea would lose all significance.12 The analogy drawn between the right of passage that LLS enjoy in the territory of transit 8 States and the right of innocent passage on the territorial sea means that, in some sense, the rights of passage (territorial) would be considered an extension of the right of maritime passage. This was not fully convincing because the rights claimed by the LLS were extended beyond those recognized traditionally on the territorial sea.13 As such, therefore, this analogy was referred to as ‘too extreme’.14 c) Right of Access as an International Servitude. Some scholars had promoted the theory 9 of international servitude as a solution to the problem of access to the sea of LLS, and argued that international law grants LLS absolute passage through territories separating them from the sea.15 The idea of international servitudes was drawn from an analogy to civil law. In essence, an international servitude is a ‘regime of restrictions applicable to the territory of one State in the interest of the territory of one or more other States’, finding its legal base in custom.16 Periods of prolonged use of access to the sea through the territory of transit States would, therefore, have created a limitation on the sovereignty of that State in the form of a legal right for the LLS. This argument, however, failed to reconcile the notion of servitude with the notion of State sovereignty.17 d) A Right Compensating for Geographical Inequalities. From the period following 10 World War II, approaches to the question of the ‘right of access of LLS’ have become more see also A. Mpazi Sinjela, Freedom of Transit and the Right of Access for Land-Locked States: The Evolution of Principles and Law, Ga. J. Int’l & Comp. L.12 (1982), 32. Additionally, Charles C. Hyde, International Law, Chiefly as Interpreted by the United States, vol. I (1948), 618, who took the view that ‘[t]he principle of the international society which invokes that the territory of each of its members be linked to the sea by way of access is sufficiently general to be applied to the utilization of all appropriate communication means, and it is valid also for overland transit as well as transit through water’, though conceding that this emerged not from general international law but from treaties between states. 10 Abdul H. Tabibi, Free Access to the Sea for Countries without Sea Coast: Position of Afghanistan on this Question (1958). 11 Art. 23 (e) Covenant of the League of Nations; Barcelona Convention; GA Res. 1028 (XI) of 20 February 1957; Art. 5 Chicago Convention on International Civil Aviation (7 December 1944), available at: http:// www.icao.int/publications/Documents/7300_cons.pdf; UNCLOS I, Final Act of the Convention of 1958 on Territorial Sea and Contiguous Zone, A/CONF.13/L.58 (1958), OR II, 146. Tabibi (note 10), further made reference to the doctrinal authority of Grotius to support his claim. 12 Tabibi (note 10). 13 See Paul Tavernier, Les nouveaux Etats sans littoral d’Europe et d’Asie et l’acce `s a` la mer, RGDIP 97 (1993), 735. 14 See, for instance, Milenko Milic, Access of Land-locked States to and from the Sea, CWRJIL 13 (1981), 503; see also Mpazi Sinjela (note 9), 34. 15 Cf. Pierre Labrousse, Des servitudes en droit international (1911), 316; Helen D. Reid, Les servitudes internationales (1933), 51. For rejections of this notion, see Georg Crusen, Les servitudes internationales, in Hague Academy of International Law, Collected Courses, vol. 22 (1928); Joseph G. Starke, Introduction to International Law (1984), 239–241; Martin I. Glassner, Access to the Sea For Developing Land-Locked States (1970), 16. For the recognition of the contested notion of servitudes in international law, see PCIJ, SS Wimbledon Case (United Kingdom v. Japan), Judgment of 17 August 1923, PCIJ Series A (Judgments), No. 1, 24. 16 Sergio Marschisio, Servitudes, MPEPIL para. 1, available at: www.mpepil.com. 17 Reid (note 15), 15.

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adaptable, and emphasised the economic repercussions which result from the particular geographic position of LLS. For example, the Charter of Economic Rights and Duties of States18 paid particular attention to LLS. According to GUY FEUER, the basic idea of the Charter was that all States must cooperate with a view to eliminating the obstacles to trade and must resolve the trade problems of all States in an equitable manner, particularly developing countries. For LLS to benefit from these measures, they must have access to the sea without hindrance.19

2. Specific Treaties 11

It may be noted at the outset that, throughout history, the efforts of LLS have been to seek an all-encompassing regime which includes the fundamental right of access to the sea, and to have this regime codified by a universal convention.20 Such efforts have been made through a variety of specific and general international instruments.

a) Freedom of Transit and Navigation and the Barcelona Statute. The Treaty of Versailles included a provision calling for the preparation of a general regime for transit freedom on navigable waterways.21 Concurrently, the Covenant of the League of Nations called upon its member States to secure and maintain freedom of communication and transit, 22 and recommended equitable treatment for trade. In that context, an Organization of Communication and Transit (OCT) was established and charged with proposing appropriate measures to ensure the freedom of communication and transit. As a result of the OCT’s work, the First General Conference on Communication and Transit adopted the texts of a series of conventions, one of which was the Barcelona Statute. 13 The Barcelona Statute provided a framework for agreements dealing with transit, and called for all contracting States to facilitate the freedom of transit by rail or navigable waterways. The Statute recognized the freedom of transit for State parties, including LLS, in bordering territories. However, signatories could depart from it in the case of serious events affecting the security or vital interests of the transit country, for public health or security reasons, and under the authority of general international treaties, or pursuant to a decision of the League of Nations. One point needs to be highlighted: the Barcelona Statute did not refer to ‘right’ but only to ‘freedom’ of access and the Statute tried to establish equilibrium between the principles of freedom of transit and the sovereignty of States.23 One scholar, in this context, noted that this equilibrium illustrated the contradictions inherent to a fragile legal regime built in a protectionist context, in which transit is presented as a privilege rather than as a real right. 24 12

14

b) Freedom of Transit for Trade: the Havana Charter and the GATT. The Havana Charter for an International Trade Organisation25 (the Havana Charter), negotiated under the auspices of the United Nations Conference on Trade and Employment, aimed at creating an organisation to supervise the world trade system largely on the basis of the principle of free competition and free enterprise. Despite never coming into force, 26 the Havana Charter is recognized as having constituted a milestone in the process of granting free and secure access to the sea, as the Charter contained a lengthy provision on the freedom of transit. 27 18 19

Proclaimed in GA Res. 3281 (XXIX) of 12 December 1974. Guy Feuer, Reflexions sur la charte des droits et devoirs e´conomiques des Etats, RGDIP (April-June 1975),

295.

20

See Nguyen Quoc-Dinh/Patrick Dallier/Alain Pellet, Droit international public (4th edn. 1992), 1031. Art. 338 Treaty of Versailles, 28 June 1919, CTS 225, 188. Art. 23 (e) Covenant of the League of Nations. 23 See e. g., Art. 1 Barcelona Statute. 24 Loic Marion, La Liberte ´ de transit en droit international (1974). 25 Havana Charter for an International Trade Organization, 24 March 1948, UN Doc. E/CONF.2/78 (1948). 26 See Dominique Carreau/Patrick Juillard/Thie ´baut Flory, Droit international economique (3rd edn. 1990), 95–96. 27 Art. 33 Havana Charter. 21 22

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Further, the Charter is also credited as having laid the groundwork for the adoption of the General Agreement on Tariffs and Trade (GATT). 28 Art. V of the GATT, which came into force in 1948, deals with ‘freedom of transit,’ and 15 largely restates the Barcelona Statute.29 In comparing the GATT with the Barcelona Statute, LOIC MARION noted one important difference: ‘the word sovereignty does not appear at all in the GATT provisions, while, at each moment, the Barcelona Statute recalled the sovereign right of states.’30 The provision is less general in scope than Art. 33 Havana Charter, particularly with regards to special facilities for LLS.31 c) Reciprocity to Right of Access and the 1958 Convention on the High Seas. The 16 Committee of Industry and Commerce of the Economic Commission for Asia and the Far East (ECAFE), in January 1956, after examining the problem of its members without access to the sea (Afghanistan, Laos, and Nepal), prepared a draft resolution recommending that members fully recognize the needs of members deprived of access, or of easy access, to the sea, with regard to transit trade, and grant them facilities in conformity with the law and international practices.32 Although the text of the resolution emphasized the needs but not the rights of LLS, for the first time an influential international organization had given special attention to the problems of LLS. The recommendations of ECAFE, although modest, opened a track within the UN for 17 considering a comprehensive approach to the problem. Consequently, through a resolution relating to LLS and the expansion of international trade,33 the UN General Assembly encouraged member States to recognize the transit needs of LLS, and because of continued pressure from certain LLS34, in another resolution, it included a paragraph recommending that at the law of sea conference to be held in Geneva (UNCLOS I), the question of free access to the sea for LLS, as established by international practice and bilateral treaties, should also be addressed.35 Shortly before the opening of UNCLOS I, a preliminary conference of thirteen LLS also prepared a list of seven general principles for its consideration. 36 Confronted with several proposals from LLS in favor of the recognition of a ‘general law of 18 access to the sea’, the Conference of 195837 established the Fifth Committee38 and tasked it with preparing a draft-convention with a view to including it in the general codification of rules relating to the regime of the sea.39 28 See for detail, Gunther Jaenicke, General Agreement on Tariff and Trade (1947), in: Rudolf Bernhardt (ed.), Encyclopaedia of Public International Law, vol. III (1997), 502–503. 29 UNCLOS I, Question of Free Access to the Sea of Land-locked Countries: Memorandum by the UN Secretariat, UN Doc. A/CONF.13/29 and Add.1 (1958), OR I, 306, 309. 30 Marion (note 24), 387. 31 Ibid., 310; WTO, GATT Analytical Index: Guide to GATT Law and Practice (2012), 214–217 (Interpretative Note on Article V GATT). 32 Regional Economic Cooperation in Asia and the Far East (UN ECAFE), UN Doc. E/CN 11/425 (1956). 33 GA Res. 1028 (XI) of 20 February 1957. 34 Particularly Afghanistan, Czechoslovakia and Bolivia, see UNCLOS I, Method of Work and Procedures of the Conference: Report of the Secretary General, UN Doc. A/CONF.13/11 (1958), OR I, 172. 35 GA Res. 1105 (XI) of 21 February 1957. See also Glassner (note 15), 29. 36 With Principle I stating: ‘The right of access to the sea of LLS derives from the fundamental principle of freedom of the sea’, Fifth Committee UNCLOS I, Annexes: Memorandum Submitted by the Preliminary Conference of Land-Locked Sates, UN Doc. A/CONF.13/C.5/L.1 (1958), OR VII, 67, 78. 37 The UN Conference on the Law of the Sea, held at Geneva from February 24 to April 27, 1958, resulted in the Convention on the High Seas (1958) (the High Seas Convention). 38 At the Committee, the positions of Chair, Vice-Chair and Rapporteur were all given to delegates from LLS The Chair of the Fifth Committee went to Jaroslav Zourek, a delegate of Czechoslovakia. The representatives of Bolivia and Afghanistan were chosen Vice-Chair and Rapporteur, respectively. Hence, despite their overwhelming majority in the conference, coastal States had no representation here. See Maurice-Rene´ Simmonet, La convention sur la haute mer (1966). Not surprisingly, this prompted a certain discomfort among transit States, which commented that ‘the Chairman of the Fifth Committee was both judge and party which always is a hindrance for the well-functioning of a Committee.’ This may go some way in explaining their subsequent mistrust of the draft report presented in the plenary session. 39 See Memorandum on the Question of Access of LLS (note 29).

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As in the Committee coastal States were not prepared to recognize a real right of access to the sea for LLS,40 they were confronted by an impasse and thus were forced to adopt a compromise text presented by Switzerland. The Swiss text (with several modifications in favor of coastal States) then became Art. 3 High Seas Convention. This article did not endorse the position of LLS in granting a general right of free access, but rather that of coastal States with the possibility (optionality) of access on the basis of reciprocity, 41 and by agreement with the coastal State concerned.42 The High Seas Convention based the ‘right’ of access contained in Art. 3 on the idea that LLS should be able to participate ‘on equal terms with coastal States’43 in the freedoms of the high seas.

d) Free Access versus Territorial Sovereignty and the New York Transit Convention. In 1963, an ECAFE Ministerial Conference adopted a resolution44 recognizing the right of free transit to the sea for LLS.45 This was the first time that the word ‘right’ of free transit was inserted in an international resolution concerning LLS.46 The following year, ECAFE adopted another resolution recommending that the problem of free access be favorably considered during subsequent meetings of UNCTAD.47 In a follow-up meeting, a draft proposal for a Convention Relating to the Transit Trade of Land-locked Countries was presented. 48 The LLS pressed for a convention specifically dealing with their problems.49 The transit States attempted to deviate by highlighting the dearth, in UNCTAD, of legal experts and information to conclude such a convention.50 21 The Convention on the Transit Trade of Land-locked Countries (the New York Transit Convention), which entered into force on 9 June 1967, proclaimed the freedom of access to the sea by reaffirming the Geneva principles51. According to the first of these principles, ‘the recognition of the right of each LLS of free access to the sea is an essential principle for the expansion of international trade and economic development.’52 This was further enhanced by Principle IV which states that, in order to promote fully the economic development of land-locked countries, all States must grant to LLS access to international and regional trade in all circumstances and for every type of goods, on the basis of reciprocity, free and unrestricted transit.53 However, the proclamation of these two principles, already weak in substance, was further undermined by the inclusion of the fifth principle, which declared that: 20

40 E. g., see UNCLOS I, Comments from Governments on the Draft Articles Concerning the Law of the Sea Adopted by the International Law Commission at its Eighth Session, UN Doc. A/CONF.13/5 and Add 1 to 4 (1958), OR I, 75, 84–85. 41 See Art. 3 (1)(a) High Seas Convention. 42 Art. 3 (1) High Seas Convention. 43 Ibid. 44 UN ECAFE, Report of the Ministerial Conference on Asian Economic Cooperation, UN Doc E/CN 11/641 (1964), 2. 45 See, Thomas M. Franck/Mohamed E. Beradei/George Aron, The New Poor: Landlocked, Shelf-locked and Other Geographically Disadvantaged States, NYU JILP 7 (1974), 53.. 46 The preceding ones only referred to the ‘needs’ of such states. See, for instance, ECOSOC Off. Doc., 22nd Sess. Suppl. No. 2 E/2821, para. 270. 47 See generally, UN ECAFE, 20th Session (2–17 March 1964), Tehran (E/CN 11/657), 2. 48 The Conference had decided unanimously to request ECAFE Secretariat to prepare a draft-convention. Afghanistan, Laos and Nepal were appointed to prepare it. Later it was cosponsored by eight African land-locked States. 49 See Preparation of a Convention Relating to the Transit of Landlocked Countries in 1 Proceedings of the UNCTAD, Final Act And Report, Annex A VI.1 UN Doc E/CONF.46/39, UN Doc. E/CONF.46/141 (1964). 50 Ibid. 51 Convention on Transit Trade of Land-locked States, 8 July 1965, UNTS 597, 3 (New York Transit Convention); Fifth Committee UNCLOS I, Annexes: Memorandum Submitted by the Preliminary Conference of Land-Locked Sates, UN Doc. A/CONF.13/C.5/L.1 (1958), OR VII, 67. 52 See Principle I New York Transit Convention. 53 See Principle IV New York Transit Convention (emphasis added).

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‘a transit state, while maintaining full sovereignty over its territory, shall have the right to take all measures indispensable to ensure that the exercise of the right of free and unrestricted access shall in no way infringe its legitimate interests of any kind.’54

As in the context of previous negotiations, the main obstacle in the New York Transit 22 Convention to the recognition of the right of access resided in the territorial sovereignty of transit States. The right of access could be granted only if the transit States’ sovereignty was guaranteed. The New York Transit Convention starts with a long preamble that reproduces the 23 excerpts of the resolution of the 11th UN General Assembly, 55 the eight principles of the 1964 UNCTAD56 and Art. 3 of the 1958 Convention on the High Seas. Most clauses are identical to the Barcelona Statute, with a small difference that the Barcelona Statute deals with transit in general, without specifically referring to LLS, whereas the New York Transit Convention exclusively deals with the access to and from the sea of LLS. Still, the New York Transit Convention has the merit of being the first multilateral 24 agreement that dealt exclusively (through a single instrument) with the specific problems of transit trade.57 Upon its adoption, TABIBI, one of its contributors, wrote, ‘in view of LLS, the legal recognition of their rights on a universal level presents a victory they searched for during forty years.’58 e) The Sea-Bed Committee and UNCLOS III. At the Sea-Bed Committee, LLS, taking the 25 initiative, submitted various detailed proposals about what they felt the content of provisions on the ‘Right of Access to and from the Sea’ should encompass.59 As at previous conferences, the proposals of the LLS conflicted with those of transit States with regards to the scope of the right of access to the sea and whether it should be subject to ‘reciprocity’, agreement with the transit States concerned, or neither. A set of draft articles put together by a group of 7 LLS60 sought to strongly declare the ‘Right of Free Access to and From the Sea’ as a principle of international law, with Article II stating: ‘1. The right of land-locked States to free access to and from the sea is one of the basic principles of the law of the sea and forms an integral part of the principles of international law. […] 3. The right of free access to and from the sea of land-locked States shall be the concern of the international community as a whole and the exercise of such a right shall not depend exclusively on the transit States.’61

The draft articles also contained a separate article entitled ‘Freedom of Transit’ which sought 26 to create an obligation on transit States to ‘accord free and unrestricted transit’ to LLS. 62 The 54

See Principle V New York Transit Convention. GA Res 1028 (XI) of 20 February 1957 on Land-Locked Countries and the Expansion of International Trade. 56 For the Resolution and the Principles, see A. Peter Mutharika (ed.), International Law of Development: Basic Documents, vol II (1978), 801–802. 57 See generally Franck/Baradei/Aron (note 45), 55. 58 Abdul H. Tabibi, The Right of Free Access to the Sea (1966), 19. For another view, see Claude G. Palazzoli, De quelques de´veloppements re´cents du droit des gens en matie`re d’acce`s a la mer des pays de´pourvus de littoral, RGDIP 70 (1966), 734, who viewed the New York Transit Convention as simultaneously representing progress, stagnation and regression; Further, R. Fahardi (Interview) 5 July 1967 – cited by Glassner (note 15), 16, who emphasized that the New York Transit Convention satisfied mostly the transit states and effectively ended further debate on issues of importance to LLS. 59 Sea-Bed Committee, Letter Dated 10 July 1973 from the Permanent Representative of Bolivia Addressed to the Chairman of the Committee on the Peaceful Uses of the Ocean Floor Beyond the Limits of National Jurisdiction, UN Doc. A/AC.138/92 (1973), 2–4 (Draft Articles Relating to Land Locked Countries); Sea-Bed Committee, Draft Articles Relating to Land-Locked States Submitted by Afghanistan et al., UN Doc. A/AC.138/ 93 (1973); Sea-Bed Committee, Uruguay: Draft Treaty Articles on the Territorial Sea, UN Doc. A/AC.138/SC.II/ L.24 (1973), 6 (Sec VII – Regime for Countries Having No Sea Coast). 60 Afghanistan, Bolivia, Czechoslovakia, Hungary, Mali, Nepal and Zambia. 61 Afghanistan et al.: Draft Articles (note 59), 2 (Article II). 62 Ibid., 3 (Article III). 55

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rights of transit States under this regime were spelled out in a separate article reinforcing their sovereignty, and authorizing them to take only ‘indispensable measures’ to ensure that this right did not infringe upon their ‘legitimate interests’.63 The articles also contained a separate article entitled ‘Reciprocity’, stating that ‘reciprocity shall not be a condition of free transit of landlocked States required by transit States but may be agreed between the parties concerned.’ 64 27 During the first session of UNCLOS III, the responsibility of dealing with the question of right of access of LLS was given to the Second Committee.65 There, the views of LLS and transit States again contrasted. At the second session, the discussion centred on the recognition of the right of access of LLS as a principle of international law.66 Some transit States, in favor of the recognition, concurred that the right of free access should be recognized as a general principle of international law especially because the economic situation of LLS was compounded by lack of access to the sea,67 and such a principle should be embodied in the Convention.68 But many rejected the view which equated the right of access to a principle of international law. 69 28 At this session, 17 LLS issued an explanatory paper to the aforementioned draft articles proposed at the Sea-Bed Committee.70 The paper highlighted the problems in previous treaties containing provisions on LLS and the right of access to and from the sea, and pointed out that these treaties had each only provided ‘partial solutions.’71 Of particular concern was the inclusion of the concept of ‘reciprocity’ in both the High Seas Convention and the New York Transit Convention,72 which the LLS claimed was ‘based on a wrong supposition that both the land-locked and transit States have comparable positions’, which was simply ‘not the case’.73 The explanatory note sought to establish these draft articles as serving ‘as a basis for the chapter in the future convention on the law of the sea.’ 74 29 In the 1974 Main Trends Working Paper75, two alternate formulations for the right of access were put forward.76 Formula A is taken directly from abovementioned draft articles, and included the express exclusion of the concept of reciprocity in the right of freedom of transit. Formula B, in contrast, focused on the interests of transit and coastal States, stating: ‘Each land-locked State shall enjoy free access to and from the sea. Neighbouring transit States shall accord, on the basis of reciprocity, free transit through their territories […] The modalities of exercise of free transit shall be settled between the land-locked States and the neighbouring transit States by means of bilateral or regional agreements.’

30

Following further negotiation, an article very similar in substance to the present Art. 125 was included in the ICNT/Part II.77 Although LLS made a series of proposals in order to strengthen their position under this article,78 only minor drafting changes were made 63

Ibid., 5 (Article XIV). Ibid. (Article XVI). 65 Second Committee UNCLOS III, 32rd Meeting, UN Doc. A/CONF.62/C.2/SR.32 (1974), OR II, 238. 66 Ibid.; Second Committee UNCLOS III, 33rd Meeting, UN Doc. A/CONF.62/C.2/SR.33 (1974), OR II, 245. 67 E. g., see the Statement of the Delegate of Nigeria: 33rd Meeting (note 65), 245 (para. 1). 68 Ibid. 69 E. g., see the Statement of the Delegate of Pakistan stating ‘neither access nor transit by land-locked States were unqualified legal rights’, ibid., 245, 250 (para. 58). 70 Second Committee UNCLOS III, Afghanistan et al.: Explanatory Paper on the Draft Articles Relating to Land-Locked States in Document A/AC.138/93, UN Doc. A/CONF.62/C.2/L.29 (1974), OR III, 206. 71 Ibid., 206–207. 72 Art. 3 (1)(a) High Seas Convention; Principle IV of the Preamble to the New York Transit Convention. 73 Explanatory Paper (note 70), 209. 74 Ibid., 207. 75 UNCLOS III, Documents Statement of Activities of the Conference during its First and Second Sessions, UN Doc. A/CONF.62/L.8/REV.1 (1974), OR III, 93 (Annex II Appendix I, Working Paper of the Second Committee: Main Trends). 76 Ibid., 134. 77 UNCLOS III, Informal Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/PART II (1975), OR IV, 152, 168 (Art. 109). 78 Second Committee UNCLOS III, Group of Land-Locked and Geographically Disadvantaged States (1976, mimeo.), reproduced in: Renate Platzo¨der (ed.), Third United Nations Conference on the Law of the Sea: 64

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before its adoption. The article was the result of a compromise between the two conflicting positions of LLS and transit States. While there is no longer any explicit reference to reciprocity, the possibility is left open for this to be included in the agreements concluded under Art. 125 (2).

III. Elements 1. ‘shall have the right of access to and from the sea’ Art. 125 creates a clear obligation: the obligation on transit States to accord unhindered access to and from the sea to LLS (transit rights), including those relating to the freedom of the high seas and the common heritage of mankind, by all means of transport. The language of Art. 125 (1) also makes it clear that whilst the earlier conventions (in particular the 1958 Convention) proclaimed a ‘moral right’ in favor of the LLS, the 1982 Convention recognizes a ‘real juridical right’. The right accorded to LLS by Art. 125 (1) is limited in scope by the restrictions in Art. 125 (2) and (3). Although the express language of reciprocity contained in earlier conventions is not included in the provision, it is possible that this may still be included in the agreements made between LLS and transit States under Art. 125 (2). While the language of Art. 125 is mandatory in nature, JULIO BAEZ recently noted that ‘its effect was that landlocked States did not have a self-executing right to access.’79 With regard to the peculiar nature of the freedom of transit, the note of the UN Secretary General during UNCLOS I concluded that previous treaties considered the freedom of transit more as a subject for international treaties than as a rule of customary international law. 80 This remark influenced the New York Transit Convention, under which the right of access depended essentially on the consent of States and was granted by means of bilateral treaties. 81 UNCLOS has not significantly strengthened the position of LLS in this regard, with most issues requiring to be decided bilaterally, as the right of access under the Convention is ‘contingent upon bilateral, sub-regional or regional arrangements.’82 Thus, despite the mandatory language contained in Art. 125 (1) and the fact that ‘the freedom of transit under Art. 125 exists independently of any bilateral or other arrangement’, 83 the ‘right of access’ for LLS contained in the Convention is not a strong one. Furthermore, the practical impact of the transit rights contained in the Convention are further limited because ‘For most developed Land-Locked States, the transit problem has lost significance, since the economic integration systems presently remove trade obstacles.’84 The continuing burden facing developing LLS was recognised by the international community and the improvement of their situation was included as one of the United Nations

Documents, vol. IV (1983), 263, 264 (Art. 109); Second Committee UNCLOS III, Afghanistan: Articles 108–112 (ISNT II) (1976, mimeo.), reproduced in: Ibid., 330–331 (Art. 109); Second Committee UNCLOS III, Switzerland: Articles 109–115 (ISNT II) (1976, mimeo.), reproduced in: Ibid., 333; Second Committee UNCLOS III, Group of Land-Locked and Geographically Disadvantaged States (1977, mimeo.), reproduced in: Ibid., 381, 386 (Art. 109). 79 UN OHRLLS, UNCLOS and Landlocked Developing Countries: Practical Implications: Summary Report (2012), 2. 80 See also, ICJ, Case Concerning Right of Passage Over Indian Territory (Portugal v. India), Preliminary Objections, Judgment of 26 November 1957, ICJ Reports (1957), 125, where the right of access was treated as a local custom, with the Court finding that it was not necessary to pronounce on whether this right of access was also present in customary international law generally. 81 See Art. 3 New York Transit Convention. 82 UNCLOS and LLS Summary Report (note 79), 2. 83 Donald R. Rothwell/Tim Stephens, The International Law of the Sea (2010), 197. 84 Gerhard Hafner, Land-Locked States, MPEPIL para. 12, available at: http://www.mpepil.com.

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Millennium Development Goals.85 Pursuant to the realisation of this goal,86 in 2003 the International Ministerial Conference of Landlocked and Transit Developing Countries and Donor Countries and International Financial and Development Institutions on Transit Transport Cooperation was held in Almaty, Kazakhstan. This conference adopted the Almaty Programme of Action,87 which aimed to inter alia ‘secure access to and from the sea by all means of transport according to applicable rules of international law’88 for LLS. The programme included specific recommendations on rail and road transport, ports, air transport, pipelines and communications;89 as well as facilitation and support measures which to promote implementation.90 The Almaty Declaration specifically reaffirmed the right of access of LLS to and from the sea and freedom of transit. 91

2. ‘for the purposes of exercising the rights provided for in this Convention’ The right of access to and from the sea provided for in Art. 125 (1) for LLS is granted to them by the Convention for the purposes of exercising the rights provided for therein. These include not only the rights relating to access and transit included in Part X, but also inter alia in relation to the Area92 and freedom of the high seas.93 The inclusion of this phrase in the provision serves to limit the scope of the freedom of access to and from the sea for LLS. It is not a general right, but one granted for the purposes of enabling LLS to participate in the other rights granted to all States by the Convention. 36 The current Obligation to Negotiate Access to the Pacific Ocean case between Bolivia and Peru before the ICJ94 concerns landlocked Bolivia’s claim that they are entitled to ‘fully sovereign access to the Pacific Ocean’95. This claim to ‘fully sovereign access’ appears to be based on some sort of historic title and/or legitimate expectation, 96 and not on any rights granted or codified in the UNCLOS, though both States are party to the treaty. The term ‘fully sovereign access’ is not a term of art in international law, but it appears to be arguably broader than rights ‘for the purposes of exercising the rights provided for in this Convention.’ ‘Sovereign rights’ is a term used relatively frequently in the Convention. ‘Sovereign rights’ in the EEZ (� Art. 56) or over the continental shelf (� Art. 77) are rights that can be exercised freely by the coastal State which cannot easily be assimilated with the rights of LLS 35

85 Which states ‘[w]e recognise the special needs and problems of landlocked developing countries, and urge both bilateral and multilateral donors to increase financial and technical assistance to this group of countries to meet their special development needs and to help them overcome the impediments of geography by improving their transit systems’, see GA Res 55/2 of 18 September 2000, para. 18. 86 See also GA RES 56/180 of 24 January 2002. 87 UN, Report of the International Ministerial Conference of Landlocked and Transit Developing Countries and International Financial and Development Institutions on Transit Transport Cooperation, UN Doc. A/ CONF.202/3 (2003), 10 (Annex I, 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). 88 Ibid., 12. 89 Ibid., 15–18. 90 Ibid., 19–23. 91 Ibid., 25 (Annex II, the Almaty Declaration). 92 See Pt XI of. 93 See Art. 87 and generally Pt VII. 94 ICJ, Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Application Instituting Proceedings or 24 April 2013, available at: http://www.icj-cij.org/docket/index.php?p1=3&p2=3&k=f3&case=153&code=bch&p3=0. 95 Ibid., 7 (para. 32 (a), first submission of Bolivia, stating ‘Chile has the obligation to negotiate with Bolivia in order to reach an agreement granting Bolivia a fully sovereign access to the Pacific Ocean’). 96 Ibid., 7 (para. 31, stating that Bolivia bases their legal claim against Chile on ‘beyond its[Chile’s] general obligations under international law, Chile has committed itself, more specifically through agreements, diplomatic practice and a series of declarations attributable to its highest-level representatives, to negotiate a sovereign access to the sea for Bolivia. Chile has not complied with this obligation and, what is more, at the present date Chile denies the very existence of its obligation.’ The argumentation in the pleadings may differ substantially and they may also bring arguments relating to Part X of UNCLOS.).

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under Part X. The fact that LLS must enter into negotiations with transit States to exercise these rights (again, which are only available to them ‘for the purposes of exercising the rights provided for in this Convention’) and furthermore, that the ‘full sovereignty over their territory’97 of the transit State is expressly invoked, place these rights in stark contrast to ‘sovereign rights’ elsewhere in the Convention. It may be then for these reasons that Bolivia chose not to rely on the right of access to and from the sea contained in UNCLOS in their application in this case.98

3. ‘common heritage of mankind’ The issue of the right of access and freedom of transit, as governed by Art. 125, also needs 37 to be read in conjunction with another important feature of UNCLOS: the concept of common heritage of mankind,99 a concept which reflects the belief that resources of certain areas beyond national sovereignty or jurisdiction should not be exploited by those few States whose commercial enterprises are able to do so. Instead, such resources constitute the common holding of mankind to be utilized for the benefit of all States. In Art. 137, the Convention states that no State shall claim sovereign rights over any part of the Area or its resources, nor shall any State or natural or juridical person appropriate any part thereof. 100 The content of this article has, to a large extent, helped to assert the right of LLS to access to and from the sea. Indeed, to characterize the area of the ocean floor that lies beyond the limits of national jurisdiction, together with the resources thereof, as the common heritage of mankind and yet deny the land-locked and other geographically disadvantaged States access to a share in the resources of the sea, for which access to the sea serves as a pre-requisite, would be to preach one thing and to practice another.101 However in the context of LLS, the rights offered remain largely theoretical, as the majority of LSS cannot effectively participate in this common heritage.102 That is essentially because of the fact that most LLS are poor, underdeveloped (also due to difficulty of accessing the sea and thereafter the international market) and consequently have limited and underperforming enterprises, and cannot effectively exploit the resources, that are accessible to them also (as a common heritage).

4. ‘shall be agreed between land-locked States and transit States’ Most provisions concerning the right of access originate in bilateral agreements concluded 38 voluntarily between LLS and transit States, and, quite commonly, show the character of a compromise often disadvantageous to LLS. From a purely formalistic viewpoint, the process of bilateral negotiations generally favors transit States. Therefore, the rights (or ‘strength’) 97

See infra MN 42. See further Andre´s Guzma´n Escobari, Bolivia’s Reasonably Strong Case against Chile, Opinio Juris Blog 21 March 2014, available at: http://opiniojuris.org/2014/03/21/bolivias-reasonably-strong-icj-case-chile/; Julian Ku, Bolivia’s Ridiculously Weak ICJ Case Against Chile, Opinio Juris Blog 29 April 2013, available at: http:// opiniojuris.org/2013/04/29/bolivias-ridiculously-weak-icj-case-against-chile/. 99 See Vo ¨ neky/Ho¨felmeier on Art. 136. 100 See Vo ¨ neky/Ho¨felmeier on Art. 137 MN 11. The concept of benefit to mankind is so vague, however, that it is extremely difficult to derive any clear-cut regime for the Area, although it does seek to set forth an unchallengeable principle that no part of the Area should be appropriated by any State. Thus, no State may claim or exercise sovereign rights over any part of the Area, nor may any part of the Area be subjected to national appropriation by a claim of sovereignty, by use or occupation, or by any other means. The principle of nonappropriation of the deep ocean floor does not generally lead to the conclusion that exploration and exploitation of this area should come to a halt. 101 See Vijay C. Govindaraj, Geographically Disadvantaged States and the Law of the Sea, in: Ram P. Anand (ed.), Law of the Sea: Caracas and Beyond: Development in International Law (1978), 3. 102 Although attempts were made to promote access of developing States in the regime of the Area, see Vo¨neky/Beck on Art. 148 MN 1–5, 6–10. Further it has been suggested that LLS have ‘have not been doing as much as they could in order to take advantage of the benefits available to them under Part XI of the Convention’, see: UNCLOS and LLS Developing Summary Report (note 81), 2 (statement of Michael Lodge). 98

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recognized in such an agreement often tend to appear like a generous gesture, rather than a provision negotiated on equal footing. 39 The force of Art. 125 (1) in providing a strong right of access to the sea is, however, substantially reduced by the Art. 125 (2), which specifically emphasizes that the terms and modalities for exercising freedom of transit shall be agreed upon by the LLS and the transit States concerned through bilateral, subregional, or regional agreements. 103 These agreements constitute a lex specialis to the Convention and are governed by the rules set out in Art. 311.104 40 Some scholars argue that Art. 125 (2) provides a ‘pactum de contrahendo’.105 For such scholars, the scope of the obligations of transit States is not clear. LLS can assert that their rights ought to be considered by transit States and that there is an obligation on transit States to enter negotiations; however, the obligation does not extend to that of result. Nevertheless, if these negotiations are not entered into in good faith, the transit State concerned may be deemed to be in violation of its obligation under Art. 300. On the basis of this LLS could invoke the compulsory dispute settlement provisions of the Convention under Part XV. 106 The Convention is silent on what happens if an agreement cannot be reached between an LLS and a transit State, which ‘could generate serious problems’107 for LLS. The Federal Republic of Germany, during the conference, maintained that in the absence of such an agreement national law should apply, particularly in so far as the means of transport are concerned.108 41 Traffic of LLS passing through their territory can be profitable for transit States, and when this is the case they ‘strive to make the best agreements they can to attract LL[S]’s traffic to their routes.109 For example in the case of Zimbabwe, the traffic can produce substantial profit for both Mozambique and South Africa.110 However, for LLS like Nepal, with low trade volume and dependence on India for access to and from the sea, there is ‘very little leverage to negotiate terms of access.’111

5. ‘full sovereignty over their territory’ 42

As with previous conventions, influenced heavily by the principle of State sovereignty, 112 Art. 125 (3) places a further restriction on the scope of the ‘right of access to and from the sea’ for LLS under Art. 125. This article states that 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 LLS shall in no way infringe their legitimate interests. The language of Art. 125 (3) is ambiguous and intentionally crafted to cover a wide range of scenarios, allowing transit States to restrict or suspend the freedom of access under the pretext of protecting their legitimate interests. Previous treaties made similar 103

Art. 125 (2). See Matz Lu¨ck on Art. 311. 105 For discussion, see Stephen C. Vasciannie, Land-Locked and Geographically Disadvantaged States in the International Law of the Sea (1990), 188 (and see further footnote 38). 106 Rothwell/Stephens (note 83), 198. 107 Vasciannie (note 105), 188. 108 See generally Tavernier (note 13). 109 World Bank, Land-locked Countries: Evaluating Alternative Routes to the Sea, Infrastructure Notes Transportation, Water and Urban Development Department by Jorge Rebelo, Transport No. OT-2 (September 1992), para. 5. 110 Ibid. 111 Ibid., para. 2. 112 For detail on the principle, see Helmut Steinberger, Sovereignty, 10, in Encyclopaedia Of Public International Law (North Holland), 397–418; see also generally, Francis H. Hinsley, Sovereignty (2nd edn. 1986); see also Nikolai A. Ushakov, International Law And Sovereignty, in: Grigorii Tunkin (ed.), Contemporary International Law (1969), 97–117; see also generally, Abram Chayes/Anonia H. Chayes, The New Sovereignty; Compliance With International Regulatory Agreements (1995). 104

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exceptions narrower by enumerating specific circumstances in which they would apply. 113 Art. 125 (3) has, however, been described as a ‘broad escape clause.’ 114

6. ‘legitimate interests’ The scope of the phrase ‘legitimate interests’ in Art. 125 (3), through which transit States 43 may take ‘all necessary measures’ to prevent the infringement of, is not clear. The greater the scope of the interests necessarily limits the scope of the right of access under Art. 125 (1). It is unclear whether ‘transit States may consider themselves free to close their borders not 44 only for serious matters, but also for reasons which may objectively be viewed as trivial.’ 115 Nepal has stated that it is for the transit States themselves to determine the scope of these interests, ‘therefore making it difficult to [sic] LLDCs to exercise the right of transit.’ 116 It is worth noting that the ICJ had confirmed the discretionary power of transit States 45 concerning the transport of arms through their territory in the Right of Passage over Indian Territory Case,117 a confirmation which, for some scholars, was based essentially on a local, and not a universal, custom.118

Article 126 Exclusion of application of the most-favoured-nation clause The provisions of this Convention, as well as special agreements relating to the exercise of the right of access to and from the sea, establishing rights and facilities on account of the special geographical position of land-locked States, are excluded from the application of the most-favoured-nation clause. Bibliography: Gerhard Hafner, Land-Locked States, MPEPIL, available at: http://www.mpepil.com; Meinhard Hilf/Robin Geiß, Most-Favoured-Nation Clause, MPEPIL, available at: http://www.mpepil.com; Peter Van den Bossche, The Law and Policy of the World Trade Organisation (3rd edn. 2010); Stephen C. Vasciannie, LandLocked and Geographically Disadvantaged States in the International Law of the Sea (1990) Documents: ILC, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law – Report Of The Study Group Of The International Law Commission Finalized by Martti Koskenniemi, UN Doc. A/CN.4/L.682 (2006) Cases: ICJ, Case Concerning Rights of Nationals of the United States of America in Morocco (France v. United States of America), Judgment of 27th August 1952, ICJ Reports (1952), 176, 192 Contents I. Purpose and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘special agreements’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 7 7

113 E. g., see Art. 7 Barcelona Statute; Arts. 11 and 12 New York Transit Convention; Vasciannie (note 105), 188. However, note that the articles of the New York Transit Convention are also informed by the principles which are reaffirmed in the text of the Preamble to the New York Transit Convention, with Principle V having similar substance to Art. 125 (3) UNCLOS. 114 UNCLOS and Developing LLS Summary Report (note 79), 2. 115 Vasciannie (note 105), 189. 116 Ibid., 3. 117 ICJ, Case Concerning Right of Passage over Indian Territory (Portugal v. India), Merits, Judgment of 12 April 1960, ICJ Reports (1960), 6. In this case, the ICJ had also considered it unnecessary to examine arguments based on general customary international law advanced by Portugal. The Court had found a practice which had been clearly established between the two countries, and confirmed that such practice was to prevail over any general rules. 118 See Quoc-Dinh/Dallier/Pellet (note 20), 420.

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Art. 126

1–4

Part X. Right of access of land-locked States

2. ‘establishing rights and facilities’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘on account of the special geographical position of land-locked States’ . . . . . . . . . 4. ‘excluded from the application of the most-favoured-nation clause’ . . . . . . . . . . . .

8 10 11

I. Purpose and Function Art. 126 serves to preserve the preferential status granted to land-locked States (LLS) under the Convention due to their special geographical position by excluding the application of mostfavoured-nation (MFN) clauses in other treaties from application in relation to provisions which establish rights and facilities due to this special geographical position. The article further extends this exclusion to any special agreements made between transit States and LLS under Part X of the Convention relating to the right of access to and from the sea. MFN clauses typically identify certain types of benefits accruing to one State and oblige the granting to State to automatically afford them, or treatment no less favourable, to all other States party to the treaty. 2 Art. 126, by identifying certain types of rights under the Convention granted to LLS due to their special geographical position and excluding the application of MFN clauses to these rights, demonstrates that these rights are rights compensating for their geographical inequality, granted to eliminate the obstacles to their trade and development. As these rights create a preferential status for LLS, they would be potentially undermined if granted to all parties enjoying MFN status under other treaties with the transit States concerned. The right of access to the sea, deriving from the principle of freedom of the seas, constitutes a specific right for LLS, linked to geographical position. Therefore, a transit State that grants special advantages in support of free access to the sea must not be required to grant the same concessions to a third state by virtue of MFN treatment. 1

II. Historical Background 3

At UNCLOS I, the delegation of Czechoslovakia, in their draft articles on ‘Access to the Sea of Land-locked Countries’,1 proposed the inclusion of a provision which would exclude the application of the MFN clause from application in relation to those articles, and any other agreements on transit between LLS and transit States. 2 The commentary attached to the draft article stated: ‘The fundamental right of a land-locked State to free access to the sea, derived from the principle of the freedom of the high seas, constitutes a special right of such a State, based on its natural geographic position. It is natural that this fundamental right belonging only to a land-locked State cannot be claimed, by view of its nature, by any third State by virtue of the most-favoured-nation clause.’ 3

The commentary further added that this exclusion was ‘fully warranted’ due to the nature of the fundamental right.4 This position did not receive sufficient support to be included in the provisions of the 1958 Convention on the High Seas, but in the following years it came to be the ‘majority view’.5 4 An MFN exclusion clause, similar in substance to that contained in UNCLOS, appeared in Art. 10 of Convention Relating to the Transit Trade of Land-locked Countries (the New York Convention) and served to reinforce the specific nature of the ‘right of free access’ granted to LLS under this Convention.6 The first sentence of Art. 10 (1) stated: 1 UNCLOS I, Annexes: Memorandum Submitted by the Preliminary Conference of Land-Locked States, UN Doc. A/A.13/C.5/L.1 (1958), 67, 75 (Annex 6). 2 Ibid., 77 (Article 8). 3 Ibid., 77 (Commentary to Article 8). 4 Ibid. 5 Stephen C. Vasciannie, Land-Locked and Geographically Disadvantaged States in the International Law of the Sea (1990), 192. 6 Convention on Transit Trade of Land-locked States, 8 July 1965, UNTS 597, 3.

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Uprety/Maggio

Exclusion of application of the most-favoured-nation clause

5–7

Art. 126

‘1. The Contracting States agree that the facilities and special rights accorded by this Convention to land-locked States in view of their special geographical position are excluded from the operation of the most-favoured-nation clause.’

At the Sea-Bed Committee, the Bolivian delegation proposed the inclusion of an MFN 5 exclusion provision in the new law of the sea convention.7 The draft article referenced rights and facilities and talked about the ‘inherent right’ of LLS by reason of their special geographical position.8 A further proposal, very similar in substance to Art. 126, was then put forward by a group of 7 LLS.9 This draft article expressly included ‘special agreements’ which regulate ‘the exercise the right of free access to and from the sea and the Area of the Sea-Bed.’10 The formulation put forward at the Sea-Bed Committee was endorsed by a group of 17 6 LLS at UNCLOS III,11 and was included verbatim in the 1974 Main Trends Working Paper12 as a basis for further negotiation. In the 1975 Informal Single Negotiating Text (ISNT) Part II13 the most significant adjustment was dropping reference in this part to the Area, 14 limiting the MFN exclusion to general access and transit rights under the Convention and special agreements. The 1978 International Law Commission Draft Articles on MostFavoured-Nation Clauses15 (ILC Draft Articles on MFN) contain a more detailed provision on the relationship between MFN and LLS’s right of access to and from the sea, 16 particularly with regards to how the exclusion applies to other LLS. Despite this and further proposals made by LLS at the conference, only minor drafting changes were made from the ISNT Part II to the text of what became Art. 126 before the Convention was adopted as a whole. 17

III. Elements 1. ‘special agreements’ Generally, the special agreements referred to in Art. 126 contain special provisions which 7 give specific groups or types of countries special rights. Depending on the nature of the issue, the geography, or the economic and infrastructure status, these special provisions may include, for example, longer time periods for implementing selected agreements, commitments or measures to increase transit opportunities for LLS, provisions requiring countries to safeguard the interests of LLS, support to help LLS build the infrastructure to enhance transit of goods, and implement technical standards, and so forth.18 7 Sea-Bed Committee, Letter Dated 10 July 1973 from the Permanent Representative of Bolivia Addressed to the Chairman of the Committee on the Peaceful Uses of the Ocean Floor beyond the Limits of National Jurisdiction, UN Doc. A/AC.138/92 (1973), 4. 8 Ibid. 9 Sea-Bed Committee, Draft Articles Relating to Land-Locked States Submitted by Afghanistan et al., UN Doc. A/AC.138/93 (1973), 6 (Article XXI). 10 Ibid. 11 Second Committee UNCLOS III, Afghanistan et al.: Explanatory Paper on the Draft Articles Relating to Land-Locked States in Document A/AC.138/93, UN Doc. A/CONF.62/C.2/L.29 (1974), OR III, 206, 210. 12 UNCLOS III, Documents Statement of Activities of the Conference During its First and Second Sessions, UN Doc, A/CONF.62/L.8/REV.1 (1974), OR III, 93,134 (Provision 183). 13 UNCLOS III, Informal Single Negotiating Text (Part II), UN Doc. A/CONF.62/WP.8/PART II (1975), OR IV, 152. 14 Ibid., 168 (Art. 110). 15 ILC, Report of the International Law Commission: Draft Articles on Most-Favoured-Nation Clauses with Commentaries, UN Doc. A/33/10 (1978), GAOR, 33rd Sess. Suppl. 10, 28. 16 Ibid., 166 (Article 26). 17 See Myron H. Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995), 426–427. 18 For example, an Agreement of June 1978 between Lao People’s Democratic Republic and Thailand provided that carriage of goods across the border can be done only through designated and licensed road hauliers, and provided the framework for both countries to select transport companies eligible to carry transit trade, with each

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Art. 126

8–11

Part X. Right of access of land-locked States

2. ‘establishing rights and facilities’ As mentioned above, the special agreements referred to in Art. 126 may contain specific rights for individual LLS or groups of LLS, and they must be in relation to the exercise of the right of access to and from the sea. These agreements include those concluded on the basis of Art. 124 (2), 125 (2), 128 and those referenced in Art. 132. 19 The rights referred to by the article are those arising from Part X of the Convention. 9 Problems in interpretation may arise under this article with regards to what constitutes ‘rights and facilities’ and the breadth of the exclusion in Art. 126.20 However, ‘the terms of the article suggest that as long as the rights and facilities in question are granted with the special position of land-locked States in mind, the MFN clause will not apply’21. 8

3. ‘on account of the special geographical position of land-locked States’ 10

The inclusion of this phrase in Art. 126 serves to limit the application of the exclusion contained within the article to those right and facilities that were granted to LLS because they are LLS. The article recognises the preferential status of LLS but through this exclusion ensures that this preferential status is specifically limited to any benefit accruing due to their special geographical position.

4. ‘excluded from the application of the most-favoured-nation clause’ 11

The term ‘most-favoured-nation clause’ was described by the ILC in its Draft Articles as ‘legally imprecise’22. Nevertheless these clauses are generally easily recognisable and appear in country holding five licences. It also allowed cargo in transit to be transferred to a dedicated warehouse following its arrival at Bangkok Port and the clearance of import procedures, See, UN ESCAP, Landlocked Developing Countries Series, No. 1, Transit Transport Issues In Landlocked And Transit Developing Countries (2003), 53. In similar vein, the Mongolia and Russian Federation Agreement Concerning Access to the Sea and Transit Transport for Mongolia Across the Territory of the Russian Federation, 19 October 1992, UNTS 1763 (in Arts. 2, 5–8), provides for freedom of transit and use of seaports, freedom of navigation, storage and reloading of Mongolian shipments, shortest possible transit routes, delay prevention protocol, customs liberalization, storage and reloading zones, and Mongolian transport offices located in the transit state. Again similarly, the Afghanistan Pakistan Transit Trade Agreement of 2010 (Afghanistan-Pakistan Transit Trade Agreement 2010, http://www.nttfc.org/reports/ APTTA-Final-signed%2028102010.pdf) provides for the efficient movement of goods and avoidance of delay, promotion of intermodal transport, minimization of customs fraud and avoidance, simplification and harmonization of customs documentation and procedure, monitoring for the traffic of illicit substances, freedom of transit, grievance and dispute resolution procedure, designation of transit transport corridors (including specific ports), safety of transit traffic, maintenance of infrastructure, assurances of adequate staffing, coordination of working hours, parking space for containers and trucks, assurances of rapid and reliable telecommunications services, licensing of transport operators, exchange of road traffic rights, provisions on railway rules and regulations, reciprocal commercial presence (including offices), motor vehicle and licensing regulations, liability insurance, etc.). Also, in cases where transit transport involves more than two countries, transit transport involves issues and problems that need to be dealt with multilaterally. In the ESCAP region, a growing number of trilateral, quadrilateral and sub-regional agreements have emerged. Some examples of these are the ASEAN Framework Agreement on the Facilitation of Goods in Transit; the GMS Agreement for Facilitation of Cross-border Transport of People and Goods; the Transit Transport Framework Agreement of the Economic Cooperation Organization; and the Transport Corridor Europe-Caucasus-Asia, being developed with the support of the European Community’s TACIS programme. These are usually framework agreements that lay out broad goals and policy directions but leave potentially contentious details to be worked out through separate protocols and annexes. See, ESCAP, Landlocked Developing Countries Series, No. 1, Transit Transport Issues In Landlocked And Transit Developing Countries (2003), 6. 19 In relation to gas and pipelines and other means of transport, see Uprety/Maggio on Art. 124 MN 13–17. In relation to the ter