Defining Disputes and Characterizing Claims: Subject-Matter Jurisdiction in Law of the Sea Convention Litigation

The Law of the Sea Convention (LOSC) is well-known for containing a compulsory dispute settlement system in Part XV, which allows most disputes to be submitted to binding adjudication or arbitration. Yet, the ability to bring a claim under the LOSC is premised upon meeting certain conditions contained in the Convention's compromissory clause. This article examines those requirements relating to jurisdiction ratione materiae or subject-matter jurisdiction under LOSC and how they have been interpreted in the recent jurisprudence of courts and tribunals.     

Article 297 of the United Nations Convention on the Law of the Sea and the Scope of Mandatory Jurisdiction

This article assesses the scope and content of the automatic exceptions contained in Article 297 of the UN Convention on the Law of the Sea to the compulsory procedures established in Section 2 of Part XV. The Convention's drafting history is examined with a view to determining the validity of the diametrically opposed readings of Article 297(1) endorsed by Annex VII Tribunals in the Southern Bluefin Tuna Award and the Chagos Marine Protected Area (MPA) Award. The interpretation favoured in the Chagos MPA Award—that mandatory jurisdiction is not restricted to the three cases expressly enumerated in Article 297(1)—is consistent with the textual evolution of Part XV. The article situates the approach adopted by the Chagos Tribunal within a wider normative tradition, which holds that adjudicative jurisdiction arises in default of positive textual authorzsation (unless it has been explicitly excluded). It is argued that this approach should be embraced by courts and tribunals when interpreting the Convention's provisions, as it accords with the drafters' aspirations and it serves to strengthen the international Rule of Law.     

The Southern Bluefin Tuna Arbitral Tribunal Did Get It Right: A Commentary and Reply to the Article by David A. Colson and Dr. Peggy Hoyle

This contribution is a reply to and a commentary on the article by David A. Colson and Dr. Peggy Hoyle, "Satisfying the Procedural Prerequisites to the Compulsory Dispute Settlement Mechanisms of the 1982 Law of the Sea Convention: Did the Southern Bluefin Tuna Tribunal Get It Right?" 34(1) Ocean Development & International Law 59-82 (2003). Colson and Hoyle took the view that Southern Bluefin Tuna Tribunal did not reach the correct answer. The author's survey of the Southern Bluefin Tuna and the Mox Plant cases, in light of the doctrine of procedural and substantive parallelism between the umbrella UN Law of the Sea Convention and its numerous implementing special treaties covered by Articles 281-282, leads her to conclude that the Southern Bluefin Tuna Arbitral Tribunal did get it right.­     

Conciliation and the 1982 UN Convention on the Law of the Sea

Conciliation is an age-old peaceful means of dispute settlement. The UN Convention on the Law of the Sea provides for both voluntary and compulsory conciliation. The importance of conciliation under UNCLOS is obvious, yet it has received little focused attention.     

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.     

Climate Change and the Use of the Dispute Settlement Regime of the Law of the Sea Convention

This article explores the connection between obligations to reduce greenhouse gas (GHG) emissions under the climate change regime and obligations to protect the marine environment under the United Nations Convention on the Law of the Sea (UNCLOS). Within the context of the state of the science on the links between climate change and the marine environment, the article considers whether the emission of greenhouse gases as a result of human activity constitutes a violation of various obligations under the UNCLOS. Having identified a number of possible violations, the article proceeds to consider the application of the binding dispute settlement process under the UNCLOS and the possibility of a successful claim.     

Precluding the Applicability of Section 2 of Part XV of the Law of the Sea Convention

Part XV of the Law of the Sea Convention (LOSC or the Convention) affords priority to section 1 of Part XV over the compulsory procedures entailing binding decisions laid out in section 2. This article examines the jurisprudence that has arisen with respect to Articles 281–283 of section 1 of Part XV. Article 281 allows parties to the Convention by agreement between them to opt out of compulsory and binding dispute resolution. Article 282 is a choice of forum provision that allows parties to prefer binding dispute resolution under the terms of another agreement “or otherwise,” such as by way of optional declarations under the Statute of the International Court. Article 283 requires the parties to a dispute concerning the interpretation or application of the Convention to exchange views regarding the appropriate means of settling that dispute before triggering the compulsory procedures entailing binding decisions of section 2 of Part XV.     

The Issue of Jurisdiction Over Mixed Disputes in the Chagos Marine Protection Area Arbitration and Beyond

The real issue in the Chagos Marine Protection Area Arbitration should have been the dispute concerning the Lancaster House Undertakings, over which the Arbitral Tribunal had no jurisdiction. The UNCLOS has no express provision respecting the jurisdiction over mixed disputes—disputes involving territorial sovereignty and maritime boundary delimitation. Thus, a court or tribunal facing a mixed dispute should refrain from exercising its jurisdiction over the maritime issue if its resolution is premised on the resolution of the sovereignty issue involved.     

Beyond the Four Corners of the Convention: Expanding the Scope of Jurisdiction of Law of the Sea Tribunals

In several recent Awards, Part XV tribunals constituted under the UN Convention on the Law of the Sea have been called upon to decide claims based on rights and obligations that find their source in a treaty, agreement, or otherwise binding instrument other than the Convention itself, or on customary international law. This article considers the extent to which such claims fall properly within the jurisdiction of a Part XV tribunal, either on the basis of the applicable law provision in Article 293(1) of the Convention, or on the basis of provisions of the Convention that make reference to other relevant rights and obligations.     

A possible explanation for the population size discrepancy in tuna (genus Thunnus) estimated from mitochondrial DNA and microsatellite data

A recent study using both mitochondrial DNA (mtDNA) and microsatellite data reported on a population size discrepancy in the eastern tiger salamander where the effective population size (N_e) estimate of the former exceeded that of the latter. That study suggested, among other hypotheses, that homoplasy of microsatellite alleles is responsible for the discrepancy. In this investigation, we report 10 new cases of a similar discrepancy in five species of tuna. These cases derive from our Bayesian inferences using data from Pacific Bluefin Tuna (Thunnus orientalis) and Yellowfin Tuna (Thunnus albacares), as well as from published estimates of genetic diversity for additional populations of Yellowfin Tuna and three other tuna species. Phylogenetic character analyses of inferred genealogies of Pacific Bluefin and Yellowfin Tuna reveal similar reduced levels of mtDNA and microsatellite homoplasy. Thus, the discrepancy between inferred population sizes from mtDNA and microsatellite data in tuna is most likely not an artifact of the chosen mutation models used in the microsatellite analyses, but may reflect behavioral differences between the sexes such as female-biased philopatry and male-biased dispersal. This explanation now warrants critical testing with more local populations of tuna and with other animal and plant groups that have different life histories.     

The Role of Research in Fisheries Management: The Conservation of Dolphins in the Eastern Tropical Pacific and the Exploitation of Southern Bluefin Tuna in the Southern Ocean

This article uses two case studies to assess the role of research in policy formation and fishery management. One study focuses on measures to limit the mortality of dolphins taken when tuna are harvested in the eastern tropical Pacific. The other studies measures taken to limit harvests of Southern Bluefin Tuna. Both of these fisheries involve fugitive resources and transboundary resources spreading across both national exclusive economic zones and the high seas. Both fisheries were initially based on open access, but public policy has led to greater exclusive use through individual transferable quotas for Southern Bluefin Tuna and dolphin mortality limits. A number of policy conclusions are drawn.     

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.     

Twenty Years of Prompt Release of Vessels: Admissibility,Jurisdiction, and Recent Trends

The International Tribunal for the Law of the Sea (ITLOS) has a residual compulsory jurisdiction regarding the prompt release of seized vessels. This procedure is one of the novelties introduced in the UN Convention on the Law of the Sea and is unique in the international judicial universe because of both its procedural characteristics and its functions. This article highlights how prompt release cases do not necessarily stem from a dispute. This has a direct consequence for those whose interests the procedure protects and who can submit an application. The last part of this article discusses the recent trend where the release of vessels and crews has been requested in the context of provisional measures applications.     

International Courts and State Compliance: An Investigation of the Law of the Sea Cases

This article investigates the effect of dispute settlement decisions under the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and whether and how states, particularly great powers, comply with these decisions. State practice suggests that an overwhelming majority of the decisions by UNCLOS dispute settlement bodies have been implemented. Significantly, not only small states but also the permanent members of the United Nations Security Council have complied with UNCLOS dispute settlement decisions even when they “lost” in the proceedings that were unilaterally initiated against them.     

Electronic tagging of Bluefin Tunas from the Maltese spawning ground suggests size-dependent migration dynamics

Environmental Biology of Fishes - The purse seine fishery in the Mediterranean represents about 60% of the international catch for Atlantic Bluefin Tuna (Thunnus thynnus). Yet, tagging operations...     

The General Dispute Settlement System of the UN Convention on the Law of the Sea: Overview,Context, and Use

This article provides an introduction to the contributions in this special issue of Ocean Development & International Law. It offers an overview of the dispute settlement provisions of the UN Convention on the Law of the Sea, placing them in the context of dispute settlement in international law generally, and explaining the extent to which they have been used so far.     

The U.N. convention on the law of the sea and military interests in the indian ocean

Abstract

The U.N. Law of the Sea Convention, ambiguous on military uses of the ocean space, weakens the legal basis for the maritime powers to pursue freely their military objectives in the oceans. Repudiation of the Convention by the United States will accelerate the creeping jurisdiction of the littoral states. The Convention enhances the security of the littoral states of the Indian Ocean, all of whom have only limited blue‐water capabilities and have sought to contain the military intrusions of the superpowers into the Indian Ocean.     

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.     

The 1987 law of yugoslavia on the coastal sea and the continental shelf

Abstract

This article analyzes the recent Yugoslav legislation on the regime of internal waters, the territorial sea, and the continental shelf which was initiated by the ratification of the Law of the Sea (LOS) Convention on behalf of Yugoslavia on November 27, 1985. The highlights of the 1987 law are the clauses strengthening the national security interests in the internal waters of Yugoslavia, the repair of foreign ships in domestic shipyards, the introduction of the system of prior notification of foreign warships entering the territorial waters, and the extension on the continental shelf of sovereign rights over archeological and historical objects. It is maintained that the law has failed to incorporate the novelties of the LOS Convention such as the proclamation of the Yugoslav exclusive economic zone (EEZ) in the Adriatic Sea and the reestablishment of its contiguous zone.     

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.