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.     

Challenges to the Primary Jurisdiction of Flag States Over Ships

With the increasing emergence of substandard ships sailing under the flag state's ineffective control and the growing number of accidents that negatively affect the marine environment and the maritime order, port states, coastal states, and international organizations have begun to develop new regimes to increase their control over ships. As a result, the authority of flag states is increasingly being challenged, seemingly calling into question the primary jurisdiction and control of flag states over their ships. The aim of this article is to promote a better understanding of the relationship between flag state, coastal state, and port state control.     

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.     

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.     

Acoustic Pollution in the Oceans: The Search for Legal Standards

The introduction of noise into the marine environment may have significant impacts on marine species and ecosystems. This article examines how the existing international legal framework can be used to address this issue. After providing some background information on sound in the marine environment, the relevant global and regional instruments dealing with the protection of the marine environment, marine pollution, and the conservation of marine species and ecosystems are discussed. The analysis suggests that international law already requires states to address various aspects of this issue. A number of instruments and institutions provide an adequate framework to prescribe rules and standards regarding most sources of acoustic pollution.     

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.     

Effective Protection of the Marine Environment and Equitable Benefit Sharing in the Area: Empty Promises or Feasible Goals?

abstract

The international legal framework with regard to “the Area,” comprising the deep seabed and the subsoil beyond the boundaries of national jurisdiction, has been modified significantly through the years. It was first established by part XI of the United Nations Convention on the Law of the Sea, but the 1994 Implementation Agreement introduced several changes. These general rules and principles are further developed in the “Mining Code,” referring to the comprehensive set of regulations and procedures issued by the International Seabed Authority. The Authority has already produced rules for the first phases of mining activities (prospecting and exploration) in the Area, but has yet to adopt exploitation regulations. Nevertheless, the most recent draft of the exploitation regulations provides a good indication of the current state of play. This article analyzes the current draft of the exploitation regulations, which will shape the future deep seabed mining regime, in order to evaluate whether the relevant provisions are sufficient and effective to attain two prominent goals with regard to the Area: the protection of the marine environment and the equitable sharing of financial and economic benefits. The Law of the Sea Convention indeed states that the resources of the deep seabed are considered common heritage of mankind and prioritizes these objectives. Therefore, the exploitation regulations should strike an appropriate balance between commercial exploitation, environmental protection, and the interests of developing countries. The strengths and weaknesses of this document and the overarching international legal framework are identified and possible corrections are suggested.     

Jurisdiction Over Underwater Cultural Heritage in the EEZ and on the Continental Shelf: A Perspective From the Practice of States Bordering the South China Sea

Abstract

The Chinese initiative of constructing the 21st Century Maritime Silk Road could be identified as a new chance to promote the protection of underwater cultural heritage (UCH) in the South China Sea. However, uncertainties concerning the jurisdictional issue over the UCH in the exclusive economic zone (EEZ) or on the continental shelf constitute an obstacle. The Convention on the Protection of Underwater Cultural Heritage has, to some extent, enlarged the coastal state’s jurisdiction. State practice differs on this issue. This article focuses on the domestic legislations of states bordering the South China Sea related to the jurisdiction over UCH found in their EEZ or on their continental shelf.     

Ethnicity,extraterritoriality, and international conflict

ABSTRACT

The world has more ethnic groups than states and many ethnic groups are split across two or more states. One implication is that many ethnic conflicts are international phenomena in which transborder ethnic kin are involved. States concerned with co-ethnics or co-religionists in neighbouring countries are pursuing interests not included in our standard models of international politics. States that pursue such extraterritorial interests define national security and national survival in terms broader than merely maintaining the physical and territorial integrity of the state. Threats to their ethnic and religious brethren are seen as threats to them. And because such threats are seen as particularistic they also affect foreign policy alignments and the functioning of the balance of power.     

The Legal Status and Operation of Unmanned Maritime Vehicles

The number of unmanned maritime vehicles (UMVs) and their potential applications in the marine space are growing constantly. Because of their comparatively small size and limited operations, only modest attention has been paid to how they fit into the international legal framework. Many UMVs may not be considered to fall under the definition of "ship" so as to enjoy states' rights of navigation under UNCLOS. Therefore states, manufacturers, and investors remain uncertain about the rights and obligations regarding UMV operations in the various maritime zones. This article addresses these questions for a range of UMVs with differing levels of autonomy. It argues that the international legal framework delegates the question of whether a UMV is a ship or not to the flag state's national laws. The article suggests that such a determination will be binding on other states. With respect to UMVs that do not fall under the definition of ship, there is remaining uncertainty about whether any navigational rights in the jurisdictional zones of other states are available, while it is argued that such rights do exist in the areas beyond national jurisdiction. The article also considers the extent to which today's UMVs can comply with the international framework for ensuring safety at sea. For those UMVs falling under the definition of ship, compliance with the current regulatory framework for shipping is required and compliance will be more difficult as the level of UMV autonomy increases.     

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 law of the sea and management of anadromous fish stocks

Abstract

Unilateral declarations of 200‐mi fishing zones by coastal states are likely to find universal recognition in new articles of international law. These probably will conform to the Single Negotiating Text currently under discussion in continuing sessions of the Third Conference on the Law of the Sea. The articles of this Text are clearly designed to protect and strengthen the fisheries rights of coastal states. Ironically, the new rules may prove counterproductive in respect of the major salmon stocks that migrate beyond 200‐mi limits. Effective protection of state‐of‐origin rights on the high seas beyond these limits will be difficult. Distant water fishing fleets experiencing reduced access to 200‐mi coastal zones will be tempted to increase, their efforts on stocks found in the remaining high seas. Salmon interception by neighboring states will also remain a problem. The article analyzes protective strategies and accommodations that may be pursued by states of origin.     

Looking back to see ahead: UNCLOS III and lessons for global commons law

The Third United Nations Conference on the Law of the Sea (UNCLOS III) provides valuable lessons for future formulation of law to govern global commons, areas that lie beyond the limits of national jurisdiction and to which all peoples have free and open access. Although endowed with the advantage of a certain degree of scientific certainty about the need for regulation of the ocean environment, UNCLOS III fell victim to a North‐South schism that impaired the search for consensus on important issues and undermined the final product of the negotiations. An examination of the UNCLOS III experience suggests that agreements that exclude specially affected states are unlikely to succeed, and points to a variety of advantages and disadvantages that come from linking several issues under one negotiating framework. The consensus approach to negotiation used at the Conference tends to expand the time and effort needed to reach a successful outcome, which can lead the negotiations themselves to be outstripped by technological or political developments. Finally, the UNCLOS III experience underscores the importance of global ideological and philosophical differences on the allocation of resources and environmental responsibility. Given these lessons, alternatives to the “parliamentary diplomacy”; strategy used at UNCLOS III are suggested, including a framework‐plus‐protocols approach, international coordination of national plans, regional arrangements, and strictly unilateral actions. While the comprehensive parliamentary diplomacy approach is useful because it recognizes the interconnectedness of ecosystems, in many situations one of the other approaches may increase the chance for a successful outcome. Whichever method is chosen, there is an emerging global recognition of the need for some action to be taken by the world community in combatting the destruction of the world's commons areas, which may be a positive sign for the future of environmental negotiations of this sort.     

Submarine Communications Cables and Law of the Sea: Problems in Law and Practice

Submarine communications cables laid on the seabed of the ocean are the foundation of the world's international telecommunications network. International law, in particular, the law of the sea, has recognized the freedom to lay submarine cables and perform associated operations and has placed certain obligations on states related to the protection of submarine cables. This article examines the international law with respect to submarine cables and discusses the various problems with both the law and state practice on submarine cables. It argues that these problems are illustrations of the traditional challenges that face the law of the sea; that is, the balancing and accommodation of competing uses of ocean space. It concludes that an important step toward resolving these problems is enhanced consultation and cooperation between cable companies and governments and that efforts should focus on creating such mechanisms.     

国家管辖范围以外区域海洋生物多样性保护的新视域: 包括海洋保护区在内的划区管理工具

随着人类对海洋资源开发利用强度的增加, 海洋生物多样性的养护面临更大挑战。联合国大会决定在《联合国海洋法公约》框架下拟定一份新的法律文书, 以解决国家管辖范围以外区域海洋生物多样性(marine biological diversity of areas beyond national jurisdiction, BBNJ)的养护与可持续利用问题。包括海洋保护区在内的划区管理工具(area-based management tools (ABMTs), including marine protected areas (MPAs))是BBNJ国际文书谈判的一个重要议题。目前谈判尚处于早期阶段, 各国对ABMTs/MPAs缺乏共同的观点。本文通过分析ABMTs/MPAs的定义和内涵以及两者的异同点、目标、与现有相关法律文书、框架和机构的关系、一般原则和方法、现有框架以及面临的缺乏调查数据、缺失全球性法律框架以及缺少利益相关者参与等挑战, 提出需提高设立海洋保护区的科学性、建立有效的监测与执法机制以及加强国际合作等建议。     

The long arm of the Arab state

ABSTRACT

Under what conditions do authoritarian states exercise control over populations abroad? The securitization of cross-border mobility has been a common theme in examining immigration policies in the Global North. The securitization of emigration and diasporas in non-democratic contexts remains neglected; this is particularly true with regard to Arab states’ extraterritorial authoritarian practices. This article argues that authoritarian states develop a range of migration policies that are driven by the contradictory pressures of economic and political imperatives or, put differently, an illiberal paradox: if a state does not expect economic gains from cross-border mobility, it is more likely to securitize its emigration policy; otherwise, it is more likely to securitize its diaspora policy. The article illustrates this trade-off via a most-similar comparison of Algeria, Libya, Tunisia, and Morocco. Drawing on Arabic and non-Arabic primary and secondary sources, it sketches a novel area of research on migration and security.     

Burning Forests,Rising Power: Towards a Constitutionality Process in Mount Carmel Biosphere Reserve

Powerful states and elites frequently manage protected areas with little or no concern for historic land uses, people, or governance practices, justified by ideologies that portray these areas as “pure nature” to be protected from humans. New international participatory platforms, such as the UNESCO Man and Biosphere Program, coupled with strategic active agency, have provided an opportunity for challenging the fortress model of conservation in Israel. We examine the change in Israel’s government ecological policies following its failure in managing the Carmel forests, whereby its bargaining power with the local Druze-Arab minority was significantly reduced, opening a window of opportunity for the Druze to take advantage of new UNESCO rules on local participation to create management institutions for the local forest commons.     

Marine pollution from land‐based sources: Current problems and prospects

Abstract

Appropriate legal measures for the prevention and abatement of land‐based pollution have only recently been undertaken despite its significant share (approximately 80 percent) in marine pollution. This article surveys solutions contained in regional conventions concluded in that field, and also indicates rules and principles to serve as the basis for states’ cooperation. Special attention has been given to problems which still give rise to controversies: pollution of the sea through international watercourses, control systems consisting of environmental impact assessments, and the obligation of prior notification and consultation, as well as state responsibility for marine pollution damage. The analysis carried out in this article supports the final conclusion that it would be desirable to consider developing guidelines for the drafting of treaties on the protection of the marine environment against pollution from land‐based sources.