The Spratlys: Are They Rocks or Islands?

The South China Sea is a multilateral battlefield of conflicting claims to sovereignty over island features and vast areas of maritime jurisdiction. In the middle of the South China Sea lies the Spratly archipelago - some 150 small island features to which six states have made claims. The core of the SCS dispute is access to natural resources, and the rivalling claims to sovereignty over islands are largely based on the assumption that whoever has sovereignty to the features can also claim large areas of ocean space attached to them. The United Nations Convention on the Law of the Sea has codified the regimes of the continental shelf and the exclusive economic zone, and it is accepted that islands, as well as continental territory, generate such zones of maritime jurisdiction. However, one category of islands cannot generate these extensive maritime zones. Article 121(3) of the convention states that "rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf." This provision, if applied to certain features, has the potential to significantly change the scope of the conflict in the Spratlys.     

The Expansion of and Changes to the National Coast Guards in East Asia

Abstract

East Asian countries have vigorously engaged in a buildup of the capabilities of their coast guards. This has been driven in part by the need to protect their maritime jurisdiction in the face of numerous maritime disputes. The coast guards in East Asia serve as the front-line defender of sovereignty and maritime claims.     

Legal Issues Related to Sovereignty over Dokdo and Its Maritime Boundary

This article examines the historical events relevant to the claims of sovereignty by Japan and Korea over Dokdo, the legal doctrines that have been applied by international tribunals to other disputes over remote and uninhabited territories, and the principles governing maritime boundary delimitation that are relevant to the ocean space around Dokdo. The applicable decisions of the International Court of Justice and other tribunals are examined in detail. Among the topics addressed are the methods of acquiring sovereignty over territory, the relevance of contiguity to such claims, the requirements of effective protests, and the activities and omissions that constitute acquiescence. Attention is also given to the status of this matter as a “dispute” and how closure might be brought to it.     

Cases Concerning Sovereignty over Islands before the International Court of Justice and the Dokdo/Takeshima Issue

The article analyzes the recent jurisprudence of the International Court of Justice in relation to disputes concerning sovereignty over islands and considers the potential implications of this jurisprudence for the resolution of the Dokdo/Takeshima issue. It does so by examining the principles and rules of international law applied by the Court to the determination of title to territory, especially those concerning the question of original title and its interplay with state conduct in general (effectivités). The article also pays special attention to the different legal techniques applied by the Court in resolving each particular dispute and the Court's practical approach to dealing with questions of historical facts and other evidentiary matters in relation to small and uninhabited islands.     

Managing Vietnam's Maritime Boundary Disputes

This article examines the progress made in managing Vietnam's maritime boundary disputes and analyzes the challenges that lie ahead relating to unsettled disputes. The continuity and change in Vietnam's approach to dispute a settlement and the difficulties in managing the unresolved maritime disputes are assessed. Vietnam has made considerable progress in managing its maritime disputes; however, continued efforts are needed to address the unresolved disputes.     

The Qatar v. Bahrain Maritime Delimitation and Territorial Questions Case

During the decade-long Qatar v. Bahrain proceedings, the International Court of Justice (ICJ) rendered two Judgments on jurisdiction and admissibility (1994-1995), followed by its decision not to rely on the 82 Qatar documents challenged by Bahrain (1999), and by Judgment on the merits (2001). This article surveys how these complex proceedings led to settlement of a long-standing dispute in the Arabian/Persian Gulf to the satisfaction of both parties and how have they enriched the contributions of the Court to the development of international law. The contributions of the two Qatar v. Bahrain (Jurisdiction and Admissibility) Judgments, including their Opinions, are highlighted in the context of important issues pertaining to the interpretation of treaties and various aspects of the jurisdiction conferred upon the ICJ by a "framework agreement" (as distinct from a compromis). The analysis of the Qatar v. Bahrain (Merits) Judgment, including its Opinions, substantiates the significant consolidation and further development--in continuation of the formidable jurisprudence of the ICJ and other tribunals, notably the Eritrea/ Yemen Arbitral Tribunal--of the principles and rules governing the acquisition of territorial sovereignty and maritime boundary delimitation.     

China's Nine Dotted Lines in the South China Sea: The 2011 Exchange of Diplomatic Notes Between the Philippines and China

Important events relating to the sovereignty dispute over the Spratly Islands have arisen by fits and starts since 2009, marking the start of a new phase in the legal battle over territorial and maritime claims in the South China Sea. While the exchange of legal arguments between the parties has gradually laid bare their maritime claims, much still remains shrouded in uncertainty. Among the obscure claims wanting clarification is China's infamous nine-dotted-line map, which in 2011 elicited a response and counterresponse between the Philippines and China. This article examines the maritime and territorial claims of the Philippines and China as revealed in the recent discord over the nine-dotted-line map.     

A Tribunal Navigating Complex Waters: Implications of the Bay of Bengal Case

The International Tribunal on the Law of the Sea's March 2012 Judgment in the Bay of Bengal Case is a landmark decision in multiple ways. It represents the first maritime boundary to be delimitated by the Tribunal. It is the first adjudication of a maritime boundary in Asia, and it is also the first judicial delimitation of a maritime boundary for parts of the extended continental shelf located seaward of the 200-nautical-mile limit from baselines. While the Tribunal's ruling largely resolves the maritime dispute between Bangladesh and Myanmar, it also raises a number of questions and concerns that are highlighted in this article, including the Tribunal's approach to delimitation both within and beyond the 200-nautical-mile limit, the treatment of islands, the interplay between law of the sea institutions and the creation of a so-called grey area where continental shelf jurisdiction falls to one state and water column jurisdiction to the other.     

Vietnam's national interests and the law of the sea

This article explores the relationship between Vietnam's national interests and the international law of the sea. Vietnam's national interests in the marine sphere include defense (the maintenance of a maritime buffer); international relations (enhancing its regional position through joint development and favorable resolution of boundary and fisheries disputes); and economics (stimulating development of its maritime resources). Although ratification of the 1982 Law of the Sea Convention would be somewhat disadvantageous to Vietnam's maritime defense strategy, many provisions would promote Vietnam's interests. Moreover, ratification and implementation of the Convention would signal Vietnam's support for international law and its desire to “rejoin”; the community of Southeast Asian nations. It might also encourage resolution of its boundary disputes, thus opening new areas to resource exploration and development by foreign companies.     

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.     

A Note on the United States and the Law of the Sea: Looking Back and Moving Forward

Since the Antarctic Treaty was negotiated in 1959, there have been substantial developments in the law of the sea. One of the most significant developments has been the recognition granted to coastal state entitlements to claim a range of offshore maritime areas. Yet, one of the principal aims of the Antarctic Treaty was to eliminate sovereignty disputes between territorial claimants, and the treaty placed limitations on the assertion of new claims. Nevertheless, most Antarctic territorial claimants have asserted some form of Antarctic maritime claim. This article particularly considers Australia's position toward maritime claims offshore the Australian Antarctic Territory (AAT). It reviews the limitations imposed by the Antarctic Treaty, the difficulties in determining baselines in Antarctica, Australia's practice in declaring Antarctic maritime claims, and the potential range of maritime boundaries that Australia may one day have to delimit with neighboring states in the Southern Ocean.     

Innocent,transit, and archipelagic sea lanes passage

Abstract

Norway is involved in two maritime boundary disputes with the Soviet Union. In relation to Svalbard, the Soviet Union argues that the archipelago has a continental shelf and an exclusive economic zone (EEZ) of its own to which all parties to the Svalbard Treaty have equal access. This is disputed by Norway, which maintains that such a view of the matter implies an expansive interpretation of the Svalbard Treaty for which there is no support in international legal practice. In the Barents Sea there is a continuing dispute between Norway and the Soviet Union over the proper location of the continental shelf and EEZ boundaries. This article sets out some of the reasons behind the different arguments on which the two base their respective cases, and the reasons why Norway in the absence of a delineated boundary has refused to accept Soviet proposals for economic cooperation in the disputed ocean area. Major emphasis is placed on the confluence of several circumstances inter alia, geopolitical and historical factors, a strongly asymmetrical power relationship, and legal ambiguity.     

Universalizing the Law of the Sea in the South China Sea Dispute

This article argues that a resolution of the maritime disputes in the South China Sea must be based upon a universalist framework where the maritime interests of the world are upheld. The article discusses the universalist framework of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and the universalist approach taken by the Tribunal on 12 July 2016 in the South China Sea Arbitration regarding the extinguishment of a state's “exceptionalist” maritime claims and the adoption of strict criteria for the characterization of features at sea.     

Defining Seaward Boundaries in a Domestic Context: Norway and the Svalbard Archipelago

Abstract

This article analyzes a little-noticed aspect of the international legal controversy pertaining to Svalbard’s maritime zones. It concerns where and by which method Norway should draw the boundaries between Svalbard’s continental shelf and the 200-mile zone, on the one hand, and other maritime zones subject to Norwegian jurisdiction, on the other. The assumption upon which the discussion rests is that the Spitsbergen Treaty signatories enjoy treaty rights in the maritime zones beyond Svalbard’s territorial waters. The law of the sea does not contain rules on the drawing of maritime boundaries between different parts of a state’s territory, but the rules on delimitation between states offer a strong analogy. In the search for an equitable solution, primacy should be given to geographical factors. The article argues that Norway could do more to enhance the openness regarding the Svalbard delimitation question since its outcome will be of significant interest to other states.     

Why Is the European Union Challenging Norway Over Snow Crab? Svalbard,Special Interests,and Arctic Governance

Abstract

Why is the European Union (EU) pursuing a relatively minor issue over the right to catch snow crab in the Barents Sea? The issue has highlighted an underlying disagreement between Norway and the EU over the status of the maritime zones around the archipelago of Svalbard, stemming from the 1920 Spitsbergen Treaty. Is the EU using the snow crab to challenge Norway’s Svalbard regime? The answer is that the EU is a multifaceted animal, where special interests can hijack the machinery and bring issues to the table, given the right circumstances. This article outlines these circumstances, as well as the evolution and the sources of the dispute over the snow crab, as it relates to not only economic interests, but international politics as well as law.     

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.     

Securing Maritime Australia: Developments in Maritime Surveillance and Security

A long coastline and extensive maritime claims mean that Australia benefits from and has responsibility for an enormous maritime jurisdiction. Within this offshore area Australia faces significant, varied, and complex maritime security and ocean policy challenges. In response, Australia has taken a number of innovative steps toward enhancing its maritime security. This article will review Australia's past practice together with some of the more recent developments in this context, particularly efforts to enhance offshore maritime surveillance and enforcement, such as the creation of the Taskforce on Offshore Maritime Security and Border Protection Command, establishment of the Australian Maritime Identification System, and implementation of augmented security patrols.     

China and Japan Maritime Disputes in the East China Sea: A Note on Recent Developments

This article examines recent developments in the East China Sea maritime disputes, focusing primarily on the Principled Consensus agreed on by China and Japan for the joint development of energy resources. The article also provides a perspective on the East China Sea maritime disputes between the two countries within the context of international relations.     

The Territorial Dispute over the Tiaoyu/Senkaku Islands: An Update

Abstract

This article discusses one of the most difficult disputes in the world, the territorial dispute over the Tiaoyu Islands. This dispute has defied solution for decades. The situation in the area has drastically deteriorated since the early 1990s, when the disputants began intensifying their claims. The issues involved in the dispute will be analyzed by reference to current law, as interpreted and applied by international judicial authorities.     

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.