UNCLOS III and conflict management in straits

Abstract

The legal regime articulated for international straits in the United Nations Convention of 1982 is a significant milestone in the reconciliation of competing interests attendant upon navigation in international straits. However, the author also submits that the refinement of respective rights and obligations of states in international straits can only be harmonized through the process of claim and counterclaim, a slow and somewhat tedious process. Extremely difficult, yet highly important questions deserve thoughtful analysis in the context of the 1982 Convention's territorial sea and straits provisions.     

Transit rights and U.S. security interests in international straits: The “straits debate”; revisited

Abstract

The issue of transit rights through international straits overlapped by an extension of territorial seas to 12nm was the focal point of intense debate between the United States and straits states during the formative stages of UNCLOS III. Even though the ICNT provisions on transit through straits reflect basic U.S. navigation and security interests, this paper argues that the issue of transit rights through straits is not a dead issue. Straits states may either refuse to ratify a LOS treaty incorporating ICNT provisions on transit passage, or the attempts to obtain a comprehensive LOS treaty may end in failure. In either case, the United States may be forced to accept a right of innocent passage through international straits. The conclusions of this paper are that the security of transit will be determined by political rather than legal considerations, and that U.S. security interests in straits are not undermined by a right of innocent passage.     

Compulsory Pilotage in the Torres Strait: Overcoming Unacceptable Risks to a Sensitive Marine Environment

This article explores arguments about the international legality of compulsory pilotage in the Torres Strait. Although the measure has been opposed by some user states because the Torres Strait is a strait used for international navigation, Australia and Papua New Guinea believe compulsory pilotage is necessary to overcome the risks posed by unpiloted shipping passing through the hazardous waters. The good health of the marine environment in the Torres Strait is essential, particularly for the well-being of indigenous peoples of the area. The article concludes that compulsory pilotage in Torres Strait reflects the obligations of both the user and border states to preserve and protect the marine environment and has support in international law.     

The International Tribunal for the Law of the Sea on Maritime Delimitation: The Bangladesh v. Myanmar Case

This article uses the Northwest Passage as a case for study of one issue relating to the regime of international straits: whether a strait formed geographically and functionally by means of artificial aids for navigation may be regarded as an artificial waterway to which the regime of international straits does not apply. The article suggests that the Northwest Passage could be subject to a bilateral treaty regime between Canada and the United States, largely akin to that which applies to artificial waterways such as the Panama Canal. This solution would guarantee both Canadian sovereignty over the Passage and the interests of international shipping in having a route open and secure.     

The new law of the sea: Rethinking the implications for sovereign jurisdiction and freedom of action

This article examines the effects of the 1982 UN Convention on the Law of the Sea on sovereign jurisdiction and freedom of action in key sea zones covered under this Convention for coastal, noncoastal, and landlocked states pursuant to the modifications contained in the 1994 Implementation Agreement. In order to determine whether or not the treaty increases, decreases, or has no effect on state sovereign‐jurisdiction and freedom of action in the territorial sea, the contiguous zone, the exclusive economic zone, the continental shelf, the archipelagic regime, international straits, the high seas, and the deep seabed, the rights and duties of states set forth in this Convention are compared with those previously recognized in the 1958 Geneva Law of the Sea Conventions, state practice, and other sources of international law.     

PSSAs and Transit Passage—Australia's Pilotage System in the Torres Strait Challenges the IMO and UNCLOS

On 22 July 2005, the International Maritime Organization (IMO) approved the extension of the Great Barrier Reef Particularly Sensitive Sea Area (PSSA) to the Torres Strait in Resolution MEPC.133(53). Australia amended its regulations and issued marine orders imposing a compulsory pilotage system in the Torres Strait. Australia's actions triggered protests from maritime states at the IMO and in bilateral diplomatic exchanges. This article examines the legal issues raised by Australia's establishment of a compulsory pilotage system in a strait used for international navigation, including the prospects for Australia being challenged under the compulsory dispute settlement provisions of the UN Convention on the Law of the Sea. It is recommended that the PSSA Guidelines of the IMO be amended to ensure that such legal issues do not arise in the future.     

A review of the enforcement regime for vessel‐source oil pollution control

Abstract

The purpose of this article is to identify the currently applicable international law intended to regulate vessel‐source pollution. Part I delineates the elements relevant for this study. Part II discusses the development of a sequence of incremental conventions. Part III examines the significance and weaknesses of the 1973 MARPOL Convention with its 1978 Protocol and of the 1982 UN. Convention on the Law of the Sea. Part IV explores alternative and/or supplementary legal approaches for handling the vessel‐source oil pollution threat.     

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.     

Delimitation of the maritime boundary in the gulf of Maine area

The compulsory dispute settlement regime included in the 1982 Law of the Sea Convention is recognized as one of the most comprehensive in a modern international convention. Yet, in the recent application of this regime, the question has arisen as to whether the procedural prerequisites associated with the LOS Convention's compulsory dispute settlement mechanism are so arduous as to avoid binding and compulsory jurisdiction in most instances. This article addresses that question by examining, in particular, the reasoning of the Southern Bluefin Tuna arbitration tribunal, which found Article 281 of Section 1 of the LOS Convention to bar jurisdiction to the compulsory dispute settlement mechanism prescribed by the Convention, and offers suggestions as to how states might distinguish or overcome the barriers imposed by the Southern Bluefin Tuna tribunal in future cases.     

Peacetime military activities in the exclusive economic zone of third countries

Abstract

Although the 1982 U.N. Convention on the Law of the Sea reaffirms the freedoms of navigation and overflight in the Exclusive Economic Zone (EEZ), its language is flexible enough to be construed as restraining military activities of third countries in the zone. On the other hand, the Convention allows enough latitude of interpretation to include the right to conduct naval activities in a foreign EEZ. The peaceful‐purposes clauses of the Convention do not, in this respect, create any new obligations beyond the obvious general principle of banning the use of force in international relations. The reluctance of UNCLOS III to adopt a clear and unambiguous solution of the problem is likely to result in disputes between naval powers, primarily developed states, and coastal states of the Third World over the attribution of rights to military uses of the EEZ, especially with regard to naval maneuvers, weapon tests, and emplacement of military devices in this zone.     

The Legal Status of the Russian Baselines in the Arctic

The validity under international law of the straight baselines the Soviet Union established in the Arctic and that Russia maintains are examined. For the purpose of comparison with the Russian regime, the issues surrounding the international regimes of baselines are analyzed. The results are then compared, as well as the practice of the main opponent with navigational interests in the area, the United States. It is found that while many of the enclosures fail the traditional criteria for establishing straight baselines and basepoints as well as the traditional criteria for enclosing bays, due to the moderate degree of deviation, largely unopposed by other states, the Russian practice cannot be said to be inconsistent with international law. At the same time, although the waters enclosed can be claimed as internal waters under the Anglo-Norwegian Fisheries Case , Article 5(1) of the 1958 Convention on the Territorial Sea and the Contiguous Zone (TSC), and Article 8(1) of the 1982 United Nations Convention on the Law of the Sea (1982 Convention), they are still subject to TSC Article 5(2) and 1982 Convention Article 8(2). If the waters enclosed thus could not previously have been considered as internal waters, the right of innocent passage exists.     

Implementation of the LOS convention: Options,impediments, and the ASEAN states

Abstract

The six states of ASEAN are faced with the problem of interpreting and implementing the 1982 Law of the Sea Convention. One of the factors to be considered in implementation is the possible impediments to implementation that may exist. Nine different types of impediments are outlined with examples drawn from the ASEAN states. Despite the various impediments that may exist for the ASEAN states none of the impediments are serious enough to force a state to be unable to ratify the LOS Convention.     

A Note on and a Proposal with Respect to the Transportation of Nuclear Cargoes in International Straits

The adoption of an international agreement to create a regime of prior communication and cooperation in the establishment of a precautionary contingency plan for nuclear spills for straits used for international navigation is vital as the peaceful uses of nuclear energy continue to be attractive to states, including Asian states, as a component of a sustainable energy strategy. With the expected rise in nuclear commerce for peaceful purposes, the need for a comprehensive framework for nuclear cargoes and wastes exists and this includes suitable response action plans for nuclear spills. The international instruments adopted by the International Maritime Organisation and the International Atomic Energy Agency provided a framework for the safe and secure carriage of nuclear materials from, other things, piracy, terrorism and sabotage. This article focuses on the movement of vessels carrying nuclear cargoes and wastes through the territorial sea waters of international straits and the necessary relationship that should exist between the vessels and the adjacent coastal States.     

Military Uses of Ocean Space and the Law of the Sea in the New Millennium

Military uses of ocean space consist of both movement rights and operational rights. Only movement rights, which include all rights associated with the mobility of seaborne forces, were codified in the LOS Convention. Operational rights, on the other hand, are primarily customary rights that are governed by the regime of freedom of the seas and defended by the naval power of the United States. This article begins by examining freedom of the seas as a principle of international law, as a bundle of user rights, and as a doctrine. It next examines the major challenges to freedom of the seas in terms of a construct called controlled access. After summarizing the major historical elements of controlled access, the article closes with a brief analysis of the threats to freedom of the seas for military purposes that are posed by multipolarity, the shift in U.S. naval strategy from the open seas to the coastal littorals, and in the withering away of U.S. naval superiority. The major arguments advanced throughout the article are that military uses of ocean space are hegemonic in nature, that their preservation depends on clear maritime superiority, and that they will come under increasing challenge and restriction as the balance of power at sea shifts from unipolarity to multipolarity by the middle of the new millennium.     

Ocean Upwelling and International Law

Ocean upwelling pipes are used to upwell nutrient-rich deeper waters in order to fertilize the surface ocean. This article addresses whether international legal rules exist governing the deployment of ocean pipes and which states are entitled to exercise jurisdiction over these objects. Taking into account the need to avoid user conflicts and unauthorized deployment of upwelling pipes in marine areas under the jurisdiction of third states, the article advocates the development of nonbinding guidelines that would implement the general terms of the United Nations Convention on the Law of the Sea.     

The Ability and Right of Coastal States to Monitor Ship Movement: A Note

Using the Global Positioning System (GPS), a ship knows its position continuously to within a few meters anywhere in the ocean. Small, lightweight, relatively inexpensive instruments calculate the ship's position from signals of passing GPS satellites. Oceanographers now attach GPS receivers to floating instruments. These floating buoys broadcast their positions and other data to passing communication satellites, which in turn transmit that information to shore stations. Clearly, a similar locator device (LD) could be placed aboard a ship and its position tracked continuously from shore. We suggest that under the U.N. Law of the Sea Treaty, coastal states can require activated LDs on all ships, including war ships, traversing its territorial sea, archipelagic sea lanes, and straits used for international passage. We further suggest states can require many classes of ships to carry activated LDs while traversing their exclusive economic zones or working above their continental shelf.     

Historic Rights in International Law and in China's Practice

Despite the great expansion of maritime zones of the coastal states, consequent to the 1982 UN Convention on the Law of the Sea, state practice indicates continued attempts at using concepts of historic waters and/or historic rights to assert jurisdiction. The Chinese claim to historic rights in its 1998 Law on the Exclusive Economic Zone and Continental Shelf is a new addition to the whole picture. It is the People's Republic of China's clear intention that the historic claim applies to the water areas in the South China Sea wherever China could not establish its 200-nm exclusive economic zone. This article assesses China's historic claim in the context of international law, state practice, and judicial pronouncements.     

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.     

A note on the role of african states in committee I of UNCLOS III

Abstract

This study assesses the role the African states played in the formulation of Part XI of the U.N. Convention on the Law of the Sea. It demonstrates that the clauses dealing with the seabed issues largely incorporated their interests. It is also argued that it was because of the African states’ efforts (among other members of the G‐77) that the industrialized countries acquiesced in the negotiation of a comprehensive LOS Treaty.     

International Straits and Trans-Arctic Navigation

The Arctic Ocean is increasingly becoming accessible to international shipping as a result of the reduction in Arctic sea ice. Commercial shipping may seek to transit the Arctic Ocean from either the Pacific or Atlantic Ocean and, as a result, the legal regime of straits has significance for trans-Arctic navigation. In this article, current developments in Arctic shipping are assessed and consideration is given to certain Arctic straits that could prove to be pivotal in future Arctic navigation and shipping. These straits include the Bering Strait, Nares Strait, Davis Strait, Fram Strait, and Denmark Strait.