Neutrality at sea in transition: State practice in the gulf war as emerging international customary law∗

Abstract

This paper provides an appraisal of the continuing efficacy of the law of neutrality as it pertains to the balance of interests of belligerents and neutrals in the maritime environment. The author finds that international customary law of naval warfare pertaining to the rights of neutrals is emerging today as a result of State and extra‐State practice in the Gulf War. This is demonstrated by examination of belligerent and neutral conduct in the “Tanker War”; and various authoritative assessments of that conduct by the international community. The examination proceeds from an analysis of the underlying theory of the customary law‐making process and evolutionary nature of the law of neutrality since before World War II. State conduct in the Gulf War, including the employment of war‐exclusion zones, is critically examined against this backdrop. Discerned from this analysis are firm, “baseline”; standards of the law of neutrality against which State practice, belligerent as well as neutral, and ultimately the emerging customary law, may be assessed.     

Anadromous species and the new international law of the sea

Abstract

This article examines the evolution of international law relating to anadromous species, focusing exclusively on salmon and primarily considering the period since World War II. The discussion concerns major international harvesting in the western North Pacific, eastern North Pacific, and the North Atlantic. Unilateral actions are also described. Special attention is given to the relevant articles of the 1982 Convention on the Law of the Sea and to developments since its conclusion. Evidence is assessed for considering that the customary international law of the sea now recognizes the authority of the state of origin of salmon to prohibit high seas harvesting of salmon.     

International cooperation in salmon fisheries and a comparative law perspective on the salmon and ocean ranching industry

Abstract

The salmon industry has steadily developed during the last two decades, leading to an increasing awareness about the legal problems that need to be solved. Both production in ocean ranching and in captivity have prompted the enactment of important rules of international and domestic law. While international law has provided for a basic regulatory framework, embodied in the United Nations Convention on the Law of the Sea and a number of regional and bilateral treaties, domestic law has concentrated on the specific technical issues that relate to conservation, fishing rights, and organization of the industry generally.

The article discusses the aggregate of legal rules applicable to salmon production, including the comparative law perspective emerging from the national legislations of the main producers in the world. Various legal and economic models are identified and their incidence on the industry is examined in light of actual experiences. The rules of international law in the field are becoming consolidated, and domestic legislation is contributing new insights into the matter while, in addition, exercising a strong influence in the formation of customary law.     

Science,sovereignty, and the third law of the Sea Conference

Abstract

The international law of marine scientific research is currently in flux. Efforts are under way at the Third Law of the Sea Conference to produce a treaty that, among other things, would make the law of research more uniform and certain. Sortie areas of disagreement certainly still exist in the Conference negotiations. Nonetheless, the negotiations have produced proposed treaty provisions concerning the law of research that have met with substantial approval. At this point, it does not appear likely that the Conference will produce major alterations in the main body of these provisions. These proposed treaty provisions indicate the future direction the law of research will take. Even if a workable treaty does not result from the negotiations, these provisions will undoubtedly inform customary international law. This article examines both the areas of agreement and the areas of disagreement at the Third Law of the Sea Conference in an effort to understand the probable future legal regime under which marine scientific research will be conducted.     

United States policy on international straits

Abstract

United States policy on international straits is dictated by the vital importance to U.S. national security interests of unimpeded commercial and military transit through, over, and under sea lines of communication. Although perceived flaws in the deep seabed mining regime of the 1982 Law of the Sea Convention precluded U.S. signature or ratification of that document, the United States considers that the navigational articles of the convention reflect customary international law. Accordingly, U.S. policy on international straits is premised on recognition of and respect for the balance of interests set forth in the navigational articles of the 1982 Law of the Sea Convention.     

The new law of the sea and the pacific basin

Abstract

The UN Convention on the Law of the Sea is indispensable for the well‐being of the states, especially the new island states, of the Pacific Basin. Since the Treaty will be signed at Caracas in December 1982, it is important to anticipate its impact in the Pacific Region area. The article examines the need for a new ocean law to replace the old law of the Geneva Conventions. It argues that exploitation of manganese nodules in the “Area”; will be legal only under the rules of Part XI of the Convention and that the principles of the Common Heritage of Mankind are now part of customary law. Finally, the seaward expansion of Pacific states authorized in the new treaty both necessitates, and provides an opportunity for, coordinated planning for the management of ocean resources and usages.     

The new ocean regime and Japan

Abstract

Japan is an island nation which is heavily dependent upon the surrounding seas for food, importation of raw materials, exportation of finished products, and for national security. Japan is also the world's largest fishing and shipping nation, which poses certain problems and imposes special responsibilities on her. Japan has traditionally followed the principle of freedom of the high seas, but under the external pressure of developments at UNCLOS III and unilateral actions by other states, Japan has been forced to accept and accommodate herself to the new concept of transit passage through international straits, the twelve nautical mile territorial sea, and the two hundred nautical mile exclusive economic zone, which were perceived as contrary to her national interests. However, Japan is adapting to the new ocean regime that is emerging from both customary and conventional international law, because she has confidence that a stable regime is more important in the long run than some short‐term advantages that might be obtained through the absence of any regime. Furthermore, as one of the highly developed nations of the world, Japan feels a special responsibility to play an effective role in aiding and assisting the developing nations of the world.     

In the Time of Frost: El Niño and the Political Ecology of Vulnerability in Papua New Guinea

ABSTRACT

Climatic anomalies associated with El Niño bring prolonged droughts and night-time frosts that devastate subsistence gardens in the Papua New Guinea highlands. As a customary process of adaptation to the subsequent food insecurity caused by crop-destroying frosts, people migrate to lower altitude areas where kin and friends provide sustenance and social support. However, with increasing economic development and the demise of collective kin endeavours in the region, long-distance migration networks no longer appear to offer people respite from food insecurity. In this paper, I examine the changes in social responses to El Niño-caused food shortages at varying scales – from subsistence farmers to international aid agencies – over the past several El Niño events. The paper explores the production of vulnerability when customary social-ecological systems of adaptation intersect with regional and national politics, development efforts, and humanitarian aid agencies.     

The United States and the revision of the 1982 convention on the law of the sea

Abstract

It may now be possible to breach the 1982 Law of the Sea Convention impasse. The UN Secretary‐General's informal consultations have opened realistic discussions on the deep seabed regime. Many important changes have occurred since the Convention was signed. Dramatic developments have taken place in the international community. Nations now appreciate the limited potential of deep seabed mining. While United States reliance on customary law provides some benefits, other more important U.S. interests cannot be protected absent entry into force of the Convention with widespread participation. Many alternative procedures are available to forge an accommodation. The approach taken in the Secretary‐General's consultations is to make specific changes in deficient articles. Alternatively, the present regime might be jettisoned in favor of a framework regime. Such a regime would preserve only the essential basic policies of the Convention's seabed regime. It would contain a system for constructing a viable mining system if a deep seabed regime is needed.     

Some problems concerning the delimitation of the maritime boundary between the republic of china (Taiwan) and the Philippines

Abstract

This paper analyzes the issue of how the relevant provisions of the 1982 United Nations Convention on the Law of the Sea can be applied to the delimitation of the maritime boundary in the Bashi Channel between Taiwan and the Philippine island of Luzon and in the South China Sea area. It concludes that the Philippines’ extensive territorial sea claim based on the 1898 U.S.‐Spanish Peace Treaty can hardly find any basis in customary rules of international law and the U.N. Convention and, therefore, should be disregarded in such delimitation. On the other hand, the archipelagic principle provided in the Convention can be applied here. With respect to rules of delimitation, it suggests that the equitable principle of the delimitation of the continental shelf, enunciated in the Anglo‐French Continental Shelf Arbitration (1977) and the Tunisian‐Libyan Continental Shelf Case (1982), can mutatis mutandis be applied to the delimitation of the maritime boundary. As an interim solution, the maritime boundary of certain disputed islands in the South China Sea should be declared neutral zones open to nationals of both countries.     

Developing nation imperatives for a new law of the sea: UNCLOS I and III as stages in the international policy process

Abstract

This paper seeks to compare the two major law of the sea conferences of the post‐World War II period in terms of imperatives for moving toward a more equitable international system. Transitions in the international system which have taken place in the years between the conferences are analyzed, as well as differences in conference participation and procedures. The paper then focuses upon the necessity for policy to be formulated in such a way that imbalances in opportunities for utilization of the seas are redressed. Special attention is given the status of the landlocked and geographically disadvantaged states. The 1977 Negotiating Text is commented on from this perspective. Proposals for development of ocean law/policy in UNCLOS III more congruent with achievement of global equity are then set forth.     

The Dugong Action Plan for the South Pacific: An Evaluation Based on the Need for International and Regional Conservation of Sirenians

Abstract

The purpose of this article is to set out the essential requirements for a successful regional agreement for Sirenians in the South Pacific. To achieve this, the current Dugong Action Plan, which is being formed under the auspice of the South Pacific Regional Environmental Program, will be juxtaposed against the “best practice” in this area, as evinced by current development in international environmental law and policy relating to Sirenians.     

The offshore jurisdiction of the states of the United States and the provinces of Canada—A comparison

Abstract

The coastal state has jurisdiction over the resources located in the seas and seabed adjacent to its coast. In federal states the question has arisen as to whether the rights in those resources are to be held by the national government or by the subsidiary territorial governments. It has been the focus of political activity and court litigation in the United States and Canada. This paper reviews in detail the status of the offshore claims of the states of the United States and the provinces of Canada. In delimiting these boundaries two systems of law have become relevant—modern public international law and historic common law. Both systems of law have advantages and disadvantages for the courts and interested parties. While the United States has chosen a route that relies very heavily on modern public international law, the Canadian situation is less clear. Litigation now in progress may resolve this issue in Canada by court decree unless a political settlement is reached first. A recent agreement between the Federal Government of Canada and the Gov eminent of Nova Scotia which calls for joint management and revenue sharing may point the way toward such a settlement.     

Mexico'S unilateral claim to a 200‐mile exclusive economic zone: Its international significance

Abstract

The purpose of this work is twofold. First, to analyze the general significance, from an international point of view, of the unilateral establishment by Mexico of its 200‐mile Exclusive Economic Zone as from June 6, 1976, in order to conclude on both its legality and its opportunity, within the framework of, respectively, the present standing of the emerging rules of the new law of the sea and the stage at which the Third United Nations Conference on the Law of the Sea finds itself after four sessions of negotiations. The arguments resorted to by Mexico in order to defend the legality and opportunity of its claim are analyzed in detail. Secondly, a study is made on whether or. not the unilateral claim of establishment of the Exclusive Economic Zone is contrary to Mexico's traditional law of the sea practice, this practice consisting of a permanent policy by Mexico, throughout its independent life, of waiting for international agreements to be concluded, or for international customs to be definitely shaped, before proceeding to the unilateral delimitation of its marine zones.     

Chile's Presential sea proposal: Implications for straddling stocks and the international law of fisheries

Abstract

Despite rapid evolution in international fisheries law and establishment of the exclusive economic zone (EEZ), straddling stocks still remain susceptible to heavy harvesting in high seas areas by distant‐water fishing states there by undermining coastal state management. The notion mar presencial (presential sea) has recently been proposed by Chile as a solution for the problem of straddling stocks. The presential sea concept was nationally designed and promoted to curtail such foreign fishing in areas adjacent to Chile's EEZ. This article examines the presential sea as a geostrategic concept, its justification for being, and the question of its permissibility under contemporary international fisheries law. Attention is also given to recent international developments that challenge the legal viability of the presential sea concept. The authors conclude that if this concept were to be widely adopted by coastal states, the traditional freedom to fish on the high seas might be severely compromised. The preferable legal solution is to work within the parameters set out by the 1982 UN Convention on the Law of the Sea, more particularly through bilateral negotiations between coastal states and fishing states, as well as regional fishery commissions that could manage activities in the region.     

Can the United States Establish the Outer Limits of Its Extended Continental Shelf Under International Law?

Although most provisions of the United Nations Convention on the Law of the Sea are regarded customary international law and the United States views most of its provisions as such, the outsider status of the United States causes problems in some areas, especially concerning the continental shelf beyond 200 nautical miles. This article asks whether it is possible for the United States to establish the outer limits of its continental shelf beyond 200 nautical miles in line with international law without becoming a state party to the convention, and if that is possible, how could the United States proceed?     

Preface

Abstract

Major naval weapons and weapons systems are examined as they relate to naval strategy and the law of the sea. Although there are some legal limitations on the development and use of nuclear and other mass destruction weapons on the seabed, and in nuclear free zones such as Latin America, and on naval weaponry in Antarctica, the use of naval weapons systems is largely unrestricted by international law and the law of the sea. Weapons systems from mines to large submarines and carriers are related to areas, to categories of states, and to the main sub‐fields of international relations. The conclusion to be drawn is that a third Hague Conference on the laws of war should be called and arms control and disarmament issues in naval weaponry should be addressed urgently. Detailed data on naval weapons, missile systems, and maritime zones are presented in three appendixes. Glossary of Abbreviations for Naval Weaponry immediately precedes the appendices.     

The exclusive economic zone and public international law

Abstract

This paper will set the international background for the evolution of the Exclusive Economic Zone (EEZ) concept in international law and in state practice. It will review the relevant provisions of the UNCLOS III and will discuss the extent to which they have or are likely to guide national practice in the future. The paper will also examine the Reagan Proclamation from an international legal perspective, as well as the possible impact of action taken by the United States in fashioning its EEZ on the stability of the EEZ concept internationally.     

Today's Customary International Law of the Sea

International courts and tribunals, governments, and scholars over the past half-century (many in the past two decades) have identified various provisions of the 1958 and 1982 treaties on the law of the sea that are customary international law and thus binding on all states, including those not party to these treaties. This article systematically collects these opinions and identifies provisions that have not yet attracted their attention.     

The Jeannette Diana Dispute

Abstract

The aim of this paper is to discuss the recent fisheries dispute between the United States of America and the Solomon Islands (S.I.) The paper reviews the background of the dispute, considers its implication for the S.I, and argues that the United States has violated international law by not recognizing the sovereignty of the S.I. over its tuna resources. It is also argued that the imposition of an embargo by the United States on the importation of tuna products from the S.L is a violation of the General Agreement on Tariffs and Trade.