Crossed Lines: The Curious Case of the Beaufort Sea Maritime Boundary Dispute

The Beaufort Sea maritime boundary dispute has traditionally been understood as involving a wedge-shaped area of maritime space that extends to a distance of 200 nautical miles north of the terminus of the Canada-United States border between the Yukon Territory and Alaska. However, new data collected in pursuit of establishing the limits of the extended continental shelf in the region show that the two countries’ seabed resource rights may stretch far beyond the 200-nautical-mile limit of the exclusive economic zone. Significantly, at approximately 200 nautical miles from shore, the U.S.-claimed equidistance line crosses the line claimed by Canada, which follows the 141° W meridian, meaning that the legal positions of the two countries if simply extended beyond the EEZ would appear to favor the other party. This article explores how the United States and Canada might seek to reformulate their legal positions to resolve the dispute. Though these reformulated positions might not reduce the area in dispute, they will clarify it and potentially enable the parties to either delimit a single maritime boundary or choose to implement one of a number of creative solutions to the dispute that are outlined in the article.     

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?     

Evaluation of Scientific Evidence by International Courts and Tribunals in the Continental Shelf Delimitation Cases

Evaluation of scientific evidence is one of the challenges arising in the tribunal and court cases that deal with the continental shelf beyond 200 nautical miles (nm). Given the difficulties rooted in the interface between law and science regarding the establishment of the entitlement to the continental shelf beyond 200 nm, the current judicial practice offers limited guidance in enhancing transparency and openness in evaluating the scientific evidence. Utilizing procedures providing for the assistance of experts is advisable, as this could facilitate the achievement of an equitable solution in the cases.     

The Rejection of a Theoretical Beauty: The Foot of the Continental Slope in Maritime Boundary Delimitations Beyond 200 Nautical Miles

This article addresses maritime boundary delimitation concerning the continental shelf beyond 200 nautical miles. The focal point is how the foot of the continental slope can be used as the point of departure in drawing the provisional equidistance line in outer continental shelf boundary delimitations between neighboring states. The article examines the strength and weaknesses of this approach and asks whether the International Tribunal for the Law of the Sea indirectly rejected this approach in the 2012 Bangladesh v. Myanmar Case.     

Russia's Revised Arctic Seabed Submission

This article identifies the key aspects of the Partial Revised Submission of the Russian Federation with respect to continental shelf areas beyond 200 nautical miles in the Arctic Ocean. It focusses on pro- cedural and substantive legal issues, including how seafloor highs were legally classified and how Russia used referenced “sector lines” to determine the outer limits of its shelf.     

Coastal States in the South China Sea and Submissions on the Outer Limits of the Continental Shelf

The purpose of this article is to examine the outer continental shelf submissions made by the coastal states of the South China Sea and their potential impact on legal and political developments in the South China Sea. In accordance with the United Nations Convention on the Law of the Sea of 1982 and the guidelines of the Commission on the Limits of the Continental Shelf, coastal states are to establish the outer limits of their continental shelf where it extends beyond 200 nautical miles. Meeting this obligation is complicated in enclosed or semienclosed seas where there are maritime disputes such as in the South China Sea.     

A Note on the European Union's Integrated Maritime Policy

This article analyses the characteristics of the Commission on the Limits of the Continental Shelf as an international decision-making institution in the process of establishing the seaward limits of the continental shelf beyond 200 nautical miles from the baselines of the territorial sea under Article 76 of the 1982 UN Convention on the Law of the Sea. The Commission may be compared to scientific bodies established to give advice relating to the implementation of treaty provisions. However, in the exercise of its functions, the Commission also performs legal-administrative tasks, and its recommendations to individual coastal states entail significant legal effects; for instance, as a means of interpretation under the Vienna Convention on the Law of Treaties. The Commission's functions and competencies must be taken into account in classifying and understanding this unique international institution.     

“Openness” and Article 76 of the Law of the Sea Convention: The Process Does Not Need to Be Adjusted

The establishment of the outer limits of the continental shelf beyond 200 nautical miles under Article 76 of the United Nations Convention on the Law of the Sea, which requires states to submit information to the Commission on the Limits of the Continental Shelf (CLCS), is a complex and costly process. States have an interest in being aware of the kind of information that the Commission is expecting to receive. States also have an interest in being able to assess whether the coastal state in establishing these outer limits has acted on the basis of the recommendations of the Commission, as is required by the Convention. Both these issues have led to calls for greater “openness” with respect to the consideration of submissions by the CLCS. This article takes a close look at the proposals that have been advanced to accomplish greater openness and concludes that there is no need to change the current process, which offers sufficient opportunities to deal with the above-mentioned concerns. It is further concluded that the proposed changes in any case do not stand any chance of being adopted.     

Submarine Ridges and Elevations of Article 76 in Light of Published Summaries of Recommendations of the Commission on the Limits of the Continental Shelf

Several of the summaries of recommendations of the Commission on the Limits of the Continental Shelf contain recommendations involving the application of the provisions of Article 76 of the 1982 UN Convention on the Law of the Sea with respect to a class of morphological features that can best be described as seafloor highs. The application of these provisions requires the classification of such features into one of the three categories of seafloor highs: oceanic ridges of the deep ocean floor, submarine ridges, and submarine elevations that are natural components of the continental margin. The summaries of the CLCS recommendations provide guidance on the approach that has been adopted for the application of these provisions. Furthermore, the summaries give insight into the principles by which the CLCS is guided in considering the submerged prolongation of the landmass of a coastal state and the delineation of the outer limits of its continental shelf beyond 200 nautical miles, and the importance of determining the foot of the continental slope at its base in this connection.     

Third Party Intervention in the Commission on the Limits of the Continental Shelf Regarding a Submission Involving a Dispute

The Commission on the Limits of the Continental Shelf (CLCS) was established in accordance with Article 76 of the Law of the Sea Convention. CLCS has the mandate to consider data submitted by coastal states concerning the outer limits of their continental shelf in areas where those limits extend beyond 200 nautical miles and to make recommendations to the submitting state on matters related to the establishment of the limits. For third parties that have actual or potential disputes, unresolved borders, or unresolved land or maritime disputes with the submitting state, the recommendations of the CLCS can be very sensitive. The focus of this article is on the practice of third parties in responding to submissions and how third parties have constructed their Notifications.     

Disputed Areas and the 10-Year Time Frame: A Legal Lacuna?

Where a coastal state intends to delineate, in accordance with Article 76 of the 1982 Law of the Sea Convention, the outer limits of its continental shelf beyond 200 nautical miles, it is to submit scientific and technical data of such proposed limits to the Commission on the Limits of the Continental Shelf within 10 years of the entry into force of the Convention for that state. This obligation has subsequently been subject to a general de facto amendment by which the commencement of the 10-year time frame has been postponed to May 13, 1999, for the states for which the Convention had entered into force prior to the above date. This article discusses whether any provision in the Convention, any subsequent agreement, or any subsequent practice render inoperative the 10-year time frame with regard to those parts of the outer continental shelf that are disputed areas. It is concluded that nothing in the Convention, no subsequent agreements, and no subsequent practice allow for derogation of the 10-year time frame with regard to disputed areas.     

Emerging Law of the Sea Issues in the Antarctic Maritime Area: A Heritage for the New Century?

This article focuses on three emerging law of the sea issues for states cooperating in management of the Antarctic and its maritime area. The first of these is no newcomer: How to regulate the dramatic increase in illegal, unregulated and unreported fishing of Patagonian toothfish (Dissostichus eleginoides) in the Southern Ocean? The second question, according to the letter of the UN Convention on the Law of the Sea, awaits the countries claiming sovereignty over portions of territory in the Antarctic 10 years from the entry into force of the Convention for each of them. The question here is what to do with the requirement contained in that Convention relating to the submission of information on the outer limit of the continental shelf beyond 200 nautical miles to the Commission on the Continental Shelf? Finally, there is a third tricky question: Who is competent to regulate, and accordingly to ban, mineral activities in the Southern Ocean seabed? Is it the International Seabed Authority as the global body, or the Antarctic Treaty Consultative Parties through their regional cooperation? This question may well never be put on the policy agenda for any global forum; but it may well be posed at any time and by any third party, whether in the UN General Assembly or, more likely, in the Assembly of the International Seabed Authority.     

Creeping jurisdiction beyond 200 miles in the light of the 1982 law of the sea convention and state practice

Abstract

This article attempts a complex examination of problems pertaining to actual and potential extensions of coastal state rights and jurisdiction beyond the limit of 200 miles in the light of 1982 Law of the Sea Convention and state practice. Extension of the continental shelf regime, in the context of its outer limit beyond 200 miles, the entitlement of rocks to this limit, and the scope of coastal state rights and duties, is analyzed first. It is followed by discussion of the extension of the exclusive economic zone (EEZ) or fishery zone regime, which involves extension of certain coastal state fishery rights on the one hand, and the right of intervention in cases of maritime casualties and the liability regime for oil pollution damage on the other hand. Attention is also paid to presently speculative extensions of both regimes as a consequence of sea level rise. The author concludes that, if a continuing nontreaty situation deprives recourse to compulsory dispute settlement, the worst‐case scenario of spatial extension of the entire EEZ regime to the outer edge of the continental margin could not with certainty be excluded.     

Deciphering the Nnorth Korean‐Soviet (Russian) maritime boundary agreements

Abstract

North Korea and the Soviet Union delimited their land and sea boundaries in two treaties, signed in 1985 and 1986. A warming bilateral relationship, joint plans to develop an economic zone near the Tumen River land boundary, and the desire to exploit marine resources, especially offshore oil, probably accelerated the negotiations. The two countries’ straight baseline claims affected the bearing of the negotiated boundaries. The territorial sea boundary may have given half‐effect to the natural coastline, and inexplicably, its terminus falls short of extending a full 12 nautical miles from the respective straight baseline claims. The 1986 continental shelf/exclusive economic zone boundary reflects the baselines and appears to delimit the South Korea—Soviet Union continental shelf, as well as the tri‐point with Japan. It ignores the presence of Liancourt Rocks (Takeshima/Tok‐do), islets disputed between Japan and South Korea. Neither South Korea nor Japan has publicly commented on the treaties.     

U.S. fishery negotiations with Canada and Mexico

Abstract

In the last decade, the world has witnessed a fundamental reorientation of posture toward marine resources as evidenced by consensus in the Third United Nations Conference on the Law of the Sea (UNCLOS III) and the near universal move toward fishery jurisdictions of 200 nautical miles (370 km). These and other non‐marine‐specific economic and political pressures impose a new constellation of constraints on North American fishery relations. This has resulted in disharmonies on two borders.

This paper, then, addresses the form of binational fishery negotiations between the United States and her two neighbors. One section presents a general model of the binational negotiation process. The next section introduces the institutional and political context of U.S.‐Canada relations, and then applies the negotiation model to the evolution of West Coast salmon deliberations. In a parallel fashion, the following section focuses on U.S.‐Mexico relations and the tuna, shrimp, and anchovy fisheries. The last section concludes with remarks on future directions for North American binational fishery relations.     

The Delimitation Method for the Continental Shelf Beyond 200 Nautical Miles: A Reflection on the Judicial and Arbitral Decisions

Abstract

This article examines the practice of the international judicial and arbitral tribunals thus far in delimiting the continental shelf beyond 200?nm, and indicates the trend reflected in the decisions. However, the article disagrees with the critical observation of the tribunals that the delimitation method for the continental shelf beyond 200?nm should follow that within 200?nm. The delimitation of the continental shelf beyond 200?nm is essentially different from the single maritime delimitation within 200?nm, and various methods may be employed in order to achieve an equitable result in a particular case.     

Wide limits and “equitable”; distribution of seabed resources

Abstract

This article discusses some drawbacks of a universally applicable 200‐mile limit for seabed resources in terms of the artificial nature of this limit, the jeopardy to the proposed international regime to govern deep seabed resources, and the views of land‐locked and shelf‐locked countries. Given the uncertain political acceptability of a 200‐mile limit, a systems approach is suggested as a means of devising a compromise solution that would maximize the objectives of: respect of existing internationally agreed conventions; promotion of the rational development of deep seabed resources; provision of equitable distribution of seabed resources and provision of acceptable benefits to all major groups of countries. One possible solution would be to have the limit of coastal jurisdiction over seabed resources defined in terms of the continental margin coupled with a system for sharing the “take”; in the area between 12 miles and the limit of the margin. The share payable to the international seabed authority would increase progressively with the distance of exploitation from the coast but would be moderated by the relative income level of the coastal State.     

Regulating Shipping in the Arctic Ocean: An Analysis of State Practice

The United Nations Convention on the Law of the Sea (LOSC) permits state parties to establish an Exclusive Economic Zone (EEZ) 200 nautical miles from their coast. Coastal states have exclusive jurisdiction over resources within the EEZ, but navigational and other high seas freedoms continue to exist. A significant number of states have, however, enacted legislation that departs from the LOSC, interfering with the navigational rights and freedoms of other states. This article analzses this development with a specific focus on the Arctic. It investigates the powers of Arctic coastal states to regulate shipping in the EEZ and thereby navigation in the Arctic Ocean. It adds to the existing literature by providing an analysis of state practice, suggesting that despite uncertainty concerning the interpretation of the LOSC Article 234 and the right to exercise legislative jurisdiction over ice-covered waters, a not insignificant number of states have claimed jurisdiction in their own EEZ beyond the rights granted in the LOSC, and are therefore not in a position to object to extensive jurisdictional claims in the Arctic.     

Vietnam: Fisheries and navigation policies and issues

Abstract

Vietnam claims a 12‐nautical‐mile territorial sea, a 12‐nautical‐mile contiguous zone, a continental shelf, a 200‐nautical‐mile exclusive economic zone (EEZ), historical waters encompassing most of the Gulf of Tonkin, and much of the Spratly Islands area. Vietnam's claimed boundaries overlap with those of China, Indonesia, Malaysia, Thailand, and Cambodia, and, in the Spratlys, with those of China, Taiwan, the Philippines, and Malaysia. The area claimed contains significant fisheries resources, and Vietnam has stipulated provisions for access to fish by foreign vessels. Yet issues pertaining to shared and migratory stocks remain to be addressed. Similarly, Vietnam has established regulations governing foreign ships navigating in Vietnamese‐claimed waters, including those designed to protect the environment. But some of these provisions do not conform to the provisions of the 1982 U.N. Convention on the Law of the Sea (UNCLOS). This article reviews Vietnam ‘s fisheries and navigation policies and issues.     

The case in international law for Canada's extension of fisheries jurisdiction beyond 200 miles

In March 1995, Canadian fisheries authorities boarded and arrested the Spanish fishing vessel, Estai, outside the Canadian 200‐mile zone on the Grand Banks, an event that served to focus world attention on a dispute that had its origins in the failure of the 1982 United Nations Convention on the Law of the Sea to implement an effective conservation and management regime for fish stocks on the high seas, particularly with respect to fish stocks that straddle coastal states’ exclusive economic zones. This article examines the origins of the dispute, including the allegations relating to overfishing of North Atlantic Fisheries Organization‐recommended quotas, the background to the vessel's arrest, and the subsequent confrontation that occurred, both at diplomatic levels and on the high seas, between Canada and the European Union. An analysis is made of the case in international law for Canada's extension of jurisdiction beyond 200 miles pursuant to the provisions of Section 5 of the Coastal Fisheries Protection Act. Finally, the article examines the implications of the recently concluded Agreement on the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks for disputes of the kind that arose in the present case.